Verdict with Ted Cruz - Becoming Justice Barrett

00:00:00.000 This is an iHeart Podcast.

00:00:02.520 Guaranteed human.

00:00:04.860 The Supreme Court confirmation hearings have just ended on Capitol Hill,

00:00:09.700 which means that Senator Cruz has got to go do his second job,

00:00:13.860 which is to come on over to the studio with us.

00:00:16.500 This is an extraordinarily consequential week.

00:00:19.420 This could fundamentally reshape the balance of power on the Supreme Court.

00:00:24.260 And we're about to talk to a guy who sat through all 12 hours of the hearings.

00:00:28.900 This is Verdict with Ted Cruz.

00:00:36.020 Welcome back to Verdict with Ted Cruz.

00:00:38.100 I'm Michael Knowles.

00:00:39.540 Senator, it occurs to me as we sit here about to discuss the Supreme Court confirmation hearings,

00:00:45.280 we've got impeachment.

00:00:47.420 We've had COVID quarantines.

00:00:50.060 We have the Supreme Court confirmation hearings.

00:00:52.300 With the possible exception of murder hornets,

00:00:54.860 you have been at the center of just about every major story of 2020.

00:01:00.500 And maybe, I don't know, maybe you've been involved in murder hornets, too.

00:01:02.740 I don't know.

00:01:04.140 Well, I will say this, this, the podcast feels reminiscent of the beginnings of Verdict

00:01:11.440 and spending all day then in the impeachment trial, now in the Judge Barrett confirmation

00:01:18.440 hearings, and then recording this late in the evening, although it's only, what is it,

00:01:24.980 9.20, 9.30 as compared to midnight or one in the morning.

00:01:28.560 So we're more humane than we started.

00:01:32.300 But it is, look, it's part of what this podcast is all about, is to try to bring folks inside

00:01:39.480 the battles real time as they're playing out in Washington, and that's what we're doing

00:01:43.900 right now.

00:01:44.720 I think in this case, too, Senator, maybe some people were watching all of the impeachment

00:01:50.080 hearings.

00:01:50.680 I don't think anybody has been sitting through all 12 hours of the Supreme Court confirmation

00:01:55.660 hearings.

00:01:56.160 And frankly, I think a lot of people, and I include myself in this to some degree, don't

00:02:01.040 even really know how this whole process plays out.

00:02:03.840 So I want to get into the specific moments and how it's shaping the process.

00:02:08.340 But I'd like to begin just by zooming out and asking, what was today?

00:02:14.100 What is the timeline going to look like?

00:02:16.700 And is this judge going to be confirmed to the Supreme Court?

00:02:20.000 So I think today was a very consequential day.

00:02:23.180 Today, we now know Judge Barrett is going to be Justice Barrett.

00:02:28.100 Today was the first big day of questioning.

00:02:31.280 So the way this is played out, the president made his announcement a couple of weeks ago

00:02:37.420 of Judge Barrett as the nominee.

00:02:39.820 We had a couple of weeks where she filled out. 0.65

00:02:42.400 There's a whole elaborate questionnaire that a Supreme Court nominee has to fill out to the

00:02:47.760 Senate that requires them to turn over any writings they've had, any speeches they've

00:02:53.580 given.

00:02:53.820 There are all these elaborate questions that any judicial nominee has to submit.

00:02:57.440 And that takes a little bit of time to compile.

00:03:00.220 And then the hearing started this week.

00:03:03.940 It started yesterday.

00:03:05.720 So but yesterday was just opening statements.

00:03:07.520 So everyone had a 10 minute opening statement.

00:03:09.560 And Judge Barrett had to sit there and listen to each of us talk for 10 minutes.

00:03:13.900 And then she gave her opening statement.

00:03:18.100 And it was a very brief.

00:03:19.240 It was introductory.

00:03:21.000 And it was introducing her family.

00:03:22.700 She had her kids there. 0.94

00:03:23.740 So she introduced her husband and her kids.

00:03:25.520 She had she's got six brothers and sisters.

00:03:27.640 So she introduced them.

00:03:29.540 That was yesterday.

00:03:30.540 So today is when the questioning started.

00:03:34.040 And the way it worked today is every senator got 30 minutes of questioning.

00:03:38.520 So it alternated Democrat, Republican, Democrat, Republican, 30 minutes each.

00:03:43.820 And so Judge Barrett is there just answering the questions.

00:03:46.220 And the reason I say today is when we know that she's going to be confirmed.

00:03:50.400 It's because the Democrats couldn't lay a glove on her. 1.00

00:03:54.540 I mean, they they really had there was no moment in the hearing where they.

00:04:01.440 Not even scored blood, where they even put a nick in her. 0.91

00:04:05.960 I think she was a fabulous witness.

00:04:09.000 She was calm.

00:04:10.300 She was cool.

00:04:11.100 She was collected.

00:04:12.640 She had and has, I think, a very scholarly, a very judicial demeanor.

00:04:18.460 She was unflappable.

00:04:19.680 And there were some moments where.

00:04:22.540 She could have been forgiven for for flapping and she didn't.

00:04:28.380 But I think every bit as revealing as the fact that they didn't lay a glove on her.

00:04:33.340 Is for a lot of them, they didn't even really try.

00:04:37.080 What I read today as is the Democrats have basically given up.

00:04:41.920 They know they don't have the votes.

00:04:43.560 They know they're not going to stop or they don't have any substantive issue.

00:04:47.600 And so they're going through the motions.

00:04:49.680 But but it actually felt today like like more than a few of the Democratic senators were basically phoning it in like they had.

00:04:56.940 And they had to fill their 30 minutes.

00:04:59.660 But but they didn't really believe they were going to get anywhere in terms of stopping the nomination.

00:05:04.720 I know early on when Judge Barrett was announced as a nominee, you heard some what I felt were very ugly and politically ill-advised attacks on her family and on her religion.

00:05:16.640 And the attacks didn't play very well.

00:05:18.900 And fortunately, we're not we're not really seeing any more of those.

00:05:21.780 I remember Dick Durbin, now the number two Democrat in the Senate.

00:05:25.560 He came out and more or less said that all Democrats could do was slow this thing down a little bit.

00:05:31.780 But ultimately, they couldn't do anything to stop Barrett on the court.

00:05:35.120 So if they're not going to lob those attacks and the attacks they're lobbying aren't working, what are they doing?

00:05:41.540 What was the line of questioning that the Democrats were pursuing?

00:05:44.300 So there was an irony to Durbin putting that that message out because the last time Judge Barrett was up when she was nominated to the Court of Appeals, Durbin was one of the people who went after her for her faith.

00:05:57.040 And he asked her then, this is three years ago, if she was an Orthodox Catholic.

00:06:03.580 Orthodox was the adjective he used.

00:06:07.160 Now, I'm pretty sure that she's not a member of the Greek Orthodox or Russian Orthodox churches.

00:06:12.960 So I'm not look, you're Catholic.

00:06:15.520 What what is an Orthodox Catholic other than beyond, I guess, from a Senate Democrats perspective, someone who actually believes the stuff?

00:06:23.780 I think that's what he meant by it.

00:06:25.000 But I think you hit the nail on the head.

00:06:26.920 She's not Eastern Orthodox.

00:06:27.980 She doesn't have one of those long beards.

00:06:29.860 She is Catholic and she's Orthodox, meaning she believes what the Catholic Church believes.

00:06:33.920 This would be as opposed to, say, a heterodox Catholic, such as I'm just throwing out a name here, the Democratic presidential nominee, Joe Biden, who says that he does not agree with the church on certain issues.

00:06:45.460 So I can understand Senator Durbin's confusion.

00:06:48.480 He probably doesn't know very many Orthodox Catholics.

00:06:50.680 But as you say, I recall that attack did not play very well for Senator Durbin three years ago.

00:06:56.020 And I think he probably wanted to caution his colleagues now.

00:06:59.960 Well, Feinstein infamously said with regard to Judge Barrett three years ago, the dogma lives loudly in this one.

00:07:07.400 And it was a moment of really, I think, contempt and religious bigotry that that that backfired, as I'm glad it did.

00:07:15.580 I'm glad the reaction was so strong.

00:07:17.560 So somebody sent out the marching orders to the Democrats.

00:07:21.500 Don't go down the road of the attacks on faith again.

00:07:24.420 And listen, for whatever reason, the Democrats, when they get talking points, they stick to them.

00:07:31.240 And so it was ordered.

00:07:32.900 You're not allowed to attack her on this.

00:07:34.440 And they all stayed away from it.

00:07:35.700 So that's good.

00:07:36.220 I mean, that I think they were nervous about the election coming up in a couple of weeks and they didn't want to tick off Catholic voters or people of faith because it's it's persecuting someone, you know, maintaining the position that no one of faith can be a judge is a pretty extreme position.

00:07:55.340 And it's also unconstitutional.

00:07:56.900 I mean, the Constitution explicitly, the text of the Constitution prohibits a religious test for anyone serving in public office.

00:08:03.500 Given that, what's interesting is they didn't even really decide to go after her record, to go after anything.

00:08:12.380 The principal talking points that the Democrats are emphasizing.

00:08:16.520 Is attacking the president, that they're just using this to say Trump, Trump, bad, orange man, bad.

00:08:23.560 And it's all about Obamacare.

00:08:27.020 It's all about Obamacare.

00:08:28.160 And their argument is that.

00:08:33.600 If Judge Barrett is confirmed, the Supreme Court will strike down Obamacare and a gazillion people will be denied health care and people with preexisting conditions will be denied health care.

00:08:44.640 And they basically are making it.

00:08:46.760 It's it's.

00:08:48.100 You got to be impressed at the discipline that virtually every Democrat says that almost word for word.

00:08:53.160 I mean, they read from their talking points.

00:08:56.520 And the arguments they're making are not.

00:09:00.380 Judicial arguments, they're not actually arguments.

00:09:03.120 It's not the Supreme Court's job to decide them.

00:09:06.740 Listen, every senator agrees we're going to protect preexisting conditions.

00:09:11.140 Every Republican agrees with that.

00:09:12.420 Every Democrat agrees with that.

00:09:14.640 Um, now there are disagreements on how you protect preexisting conditions.

00:09:18.340 And I think Obamacare has been a train wreck.

00:09:22.620 It's driven premiums through the roof.

00:09:24.800 And it's very unpopular.

00:09:26.180 But that is a policy question for Congress to debate.

00:09:30.740 That's not the court is not going to decide what's the best system of health care. 0.88

00:09:36.580 And so one of the main general election arguments the Democrats are mounting is this preexisting conditions attack.

00:09:42.800 And it was striking a number of the Democrats.

00:09:45.980 They all but ignored Judge Barrett.

00:09:47.700 They just had their talking points. 1.00

00:09:50.060 Trump hates you and wants everyone to die. 0.97

00:09:52.460 And and it and, you know, Judge Barrett just kind of sat there and smiled while that. 0.91

00:09:56.820 Well, I mean, you know, that was not directed to her and her fitness and and and record to serve on the court. 0.54

00:10:03.580 But I thought but I thought it was interesting how half hearted they were in going after her.

00:10:08.700 They barely tried.

00:10:10.480 Well, on the health care point, I was speaking to a fairly prominent Democrat operative during the midterms a couple of years ago.

00:10:16.640 And this operative told me that basically the only winning issue for Democrats was health care and not Obamacare, by the way, just sort of broad health care reform, health care protections.

00:10:27.400 Right. Because the promises on the campaign trail are always we're going to give you a lot of free stuff and it's going to make everybody healthier and better.

00:10:34.020 So they keep hammering that home.

00:10:35.820 It's obviously much less contentious than, say, abortion or or going after somebody's faith or something to that effect.

00:10:41.860 Well, you know, in twenty eighteen, Chuck Schumer dropped several several million dollars in attack ads against me in the closing week of my reelection campaign.

00:10:50.780 And it was all.

00:10:53.020 Pre-existing conditions, it was Ted wants to take away coverage, pre-existing conditions.

00:10:56.740 Now, we immediately pivoted and hit him back and said, no, we're going to protect pre-existing conditions.

00:11:01.160 And you've driven costs through the roof and people can't afford health care.

00:11:04.500 And it and it I mean, we have always been a very data driven operation.

00:11:09.500 And the polling showed that when we counterpunched it, completely neutralized the attack.

00:11:14.460 But they put hundreds of millions of dollars behind that attack nationally in twenty eighteen.

00:11:19.500 And they're doing it again this cycle.

00:11:21.660 Well, I want to get into those hundreds of millions of dollars because I agree with you watching.

00:11:25.860 I didn't watch twelve hours of it today, but watching what I did, it did seem half hearted.

00:11:30.140 Senator Feinstein went for Roe versus Wade, that kind of flop.

00:11:33.760 I felt Kamala Harris flopped. 0.99

00:11:35.220 I just felt so many of the attacks were weak.

00:11:37.280 The only one that caught my interest was from your colleague, the Democrat Sheldon Whitehouse,

00:11:42.320 who launched an attack at the funding of the conservative judicial movement, basically saying

00:11:49.320 that dark money was behind the selection of Judge Barrett.

00:11:53.620 And then he didn't quite explain what that meant.

00:11:55.980 But the conclusion, of course, was Barrett is an illegitimate nominee and there's no way we should confirm her.

00:12:01.300 Where is all that dark money, Senator?

00:12:03.500 So it was a fairly extraordinary.

00:12:08.040 So so Sheldon talked for 30 minutes.

00:12:10.540 He didn't ask Judge Barrett a single question.

00:12:13.220 So she just sat there while he put on and he had these little charts he had.

00:12:17.760 And it was interesting.

00:12:18.600 Ben Sasse later in the afternoon referred to it as a beautiful mind presentation.

00:12:23.560 But there's a reason for his presentation.

00:12:29.700 So White House has been pushing this for a long time.

00:12:35.740 There's a concerted effort to delegitimize the court.

00:12:38.440 And that's part of his narrative is that he says that that secretive corporate billionaires are funding Republicans and the court is bought and paid for.

00:12:50.780 And it's illegitimate.

00:12:51.820 And this is connected to their whole effort to pack the court.

00:12:56.180 This is all Sheldon's objective is to delegitimize the Supreme Court.

00:13:00.900 And my questioning was immediately after his.

00:13:05.100 And that's usually the case in terms of the seniority.

00:13:07.420 I normally go between White House and Klobuchar.

00:13:11.820 And so often I'm off often have a chance to respond to White House.

00:13:17.140 And then Klobuchar has discovered she gets lots of likes when she, like, says something nasty about me, which is Amy and I actually get along quite well.

00:13:24.240 But but it makes it makes lefties really happy when she attacks me. 0.99

00:13:27.640 So she often will chime in.

00:13:28.840 You're going to totally kill her credibility now that you say that she you and she get along very well.

00:13:33.540 There go all the Facebook likes.

00:13:35.020 So White House, I took the chance to really lay into his premise as as, you know, in the world of campaign finance reform.

00:13:43.220 So and this is something Sheldon says all the time, but Democrats say all the time is big money is behind the Republicans.

00:13:49.240 It just happens to be there's a lot more big money behind Democrats that that if you want to know where the big money is.

00:13:55.240 So if you look at, for example, in 2016 of the top 20 super PAC donors in America, do you know how many gave almost exclusively to Democrats?

00:14:08.440 The top 20 14 gave almost exclusively to Democrats.

00:14:12.400 Three gave about evenly Democrat and Republican, and only two of the top 20 gave primarily to Republicans overwhelmingly.

00:14:21.320 And by the way, the difference in dollars in that cycle, 2016 cycle, Republicans had one hundred and eighty nine million dollars spent supporting their elections.

00:14:31.500 Democrats had four hundred and twenty two million dollars.

00:14:33.600 And it was, you know, and and and, you know, Sheldon was bellowing, you know, these mysterious dark money donors.

00:14:40.240 They want something for it.

00:14:41.960 They want something.

00:14:43.260 You don't give that kind of money for nothing.

00:14:45.180 I mean, he was he was I was really tempted to jump in and be, you know, Sheldon, that they're decaffeinated brands in the market that are just as tasty.

00:14:52.140 Like, just just relax there, son.

00:14:54.680 So just deep breaths, deep breaths.

00:14:56.760 But look, if you look at this cycle, the Fortune 500 overwhelmingly supporting Joe Biden over Donald Trump, Wall Street overwhelmingly supporting Joe Biden over Trump.

00:15:10.280 The entire narrative that it's big corporate interests supporting Republicans, it's just not right.

00:15:18.400 But what you what you've pointed to here, Senator, I think is key because I couldn't I couldn't make sense of it.

00:15:23.660 I knew that he was putting on a big show, but the whole time I was watching it, I thought, what is the point he's trying to make?

00:15:29.960 You know, he had step one, raise a lot of money.

00:15:33.380 Step two, I don't know.

00:15:35.780 Step three, you have a judge on the court, but then often the judges disappoint the people who want to appoint them anyway.

00:15:40.240 I just couldn't get what the point was.

00:15:41.680 But what you're saying is there's no point about the money.

00:15:45.120 It's simply part of a broader performance to delegitimize the court.

00:15:50.380 Yes.

00:15:51.500 And that and it's also to say the court is bought and paid for, but it's also to justify a Democratic power grab and a regulation of speech.

00:16:02.520 And so I use my questioning to talk quite a bit about what the Democrats want to see from left wing Supreme Court justices.

00:16:12.440 As you know, my new book came out a couple of weeks ago, One Vote Away, How a Single Seat on the Supreme Court Can Change History.

00:16:19.120 A New York Times bestseller, I believe.

00:16:20.620 Is that correct?

00:16:21.280 It is.

00:16:21.820 And it was the number one bestseller in the country on Amazon.

00:16:24.260 So, I mean, it really a lot of people have been buying it.

00:16:26.300 A lot of folks who listen to verdict.

00:16:28.140 Thank you for that.

00:16:28.860 I appreciate that.

00:16:29.660 Um, there's a chapter in the book on Citizens United.

00:16:35.760 And so my questioning today, I wanted to explain, you know, a lot of folks have heard of Citizens United, but they don't know what the case is about.

00:16:43.160 They know Democrats hate it.

00:16:45.280 And so I explain Citizens United was at its heart about whether we can criticize politicians.

00:16:52.800 And in particular, so what happened, Citizens United is a small nonprofit organization based in D.C.

00:17:00.900 They made a movie that was critical of Hillary Clinton.

00:17:03.740 And the Obama Justice Department went after them and wanted to be able to fine them for daring to criticize Hillary Clinton in a movie.

00:17:13.740 And the case went all the way to the Supreme Court.

00:17:16.600 And there was one exchange at the oral argument, Michael, that was really chilling.

00:17:20.340 Where Justice Sam Alito asked the lawyer for the Obama Justice Department said, under your theory of the case, can the government ban books?

00:17:33.200 And the Obama Justice Department lawyer said, yes, yes, the government can ban books if they're critical of a politician.

00:17:42.060 And ultimately, the court struck that down 5-4.

00:17:47.080 But there were four justices ready to say that the government can ban movies and the government can ban books.

00:17:56.340 And it's what I tried to do in the book, One Vote Away, is every chapter emphasizes, look, we had four votes to say, never mind what the First Amendment says, never mind free speech.

00:18:08.080 The government has the power to ban movies or books if they don't like the content of them.

00:18:13.060 And that's really terrifying. And that's what White House and the other Democrats were trying to build the predicate for.

00:18:19.260 They want to be in charge, frankly, of silencing you, of silencing me, of silencing anyone who says something they disagree with.

00:18:26.960 Before we get to mailbag, I do want to get to a mailbag question.

00:18:29.800 I do have to ask this, though, Senator.

00:18:31.500 I know we had all been joking on the right that the Democrats were going to pull a Kavanaugh on Judge Barrett, that they were going to accuse her of sexual harassment or something like that.

00:18:42.160 And then, tell me I'm crazy. Tell me I misheard it while I was watching today.

00:18:47.340 Did Senator Mazie Hirono of Hawaii actually ask Judge Barrett if she had sexually harassed anybody?

00:18:55.680 Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?

00:19:05.980 No, Senator Hirono.

00:19:07.160 Have you ever faced discipline or entered into a settlement related to this kind of conduct?

00:19:13.180 No, Senator.

00:19:15.500 So she did. And I will admit it was one of the most incongruous moments.

00:19:21.600 Like if you were to pick perhaps the least likely person on planet Earth to sexually harass someone, it may well be Judge Amy Coney Barrett. 1.00

00:19:29.980 But I will say in in Mazie Hirono's defense, and I don't often come to Mazie's defense, she consistently asked that question of every nominee before her.

00:19:47.260 And she's done that since she got elected. And so it's if you're nominated.

00:19:52.680 To be a judge, if you're nominated to be in anything where Mazie is going to be on the committee confirming you, she will ask that same question. 0.79

00:20:00.560 And I actually respect that she asked that. I mean, I think it it certainly caused a lot of nominees to think twice about, OK, how are they going to answer it?

00:20:12.380 And look, I think it's a reasonable thing for the Senate to ask.

00:20:15.860 And and I think it's fine that she applies it even handedly and consistently.

00:20:20.440 I think it's actually a good thing that she applies it to everyone.

00:20:23.380 Well, a very fine, kind word to say about Senator Hirono.

00:20:26.620 And I think we're all very pleased that Judge Barrett was able to answer that very quickly.

00:20:31.420 They moved on before we go.

00:20:34.120 We've only got a couple of minutes left.

00:20:35.360 I do want to get to a couple of mailbag questions.

00:20:39.020 This first one is from I promise you this is not my account.

00:20:43.180 I think it's a listener of verdict.

00:20:45.120 The account is verdict. Sir Knowles, commander of the British Empire.

00:20:47.940 Not me. What would happen if the Senate majority just refused to fill a Supreme Court vacancy for an extended period of time?

00:20:57.540 So not a few months of a campaign, but let's say two years or three years.

00:21:02.680 Now, look, the seat would remain vacant.

00:21:04.060 And, you know, it does seem we're moving in that direction where I am not sure we will see a Senate.

00:21:13.360 Filling Supreme Court seats for the opposite party's president.

00:21:16.600 And it's just judicial nominees.

00:21:20.880 If, for example, we started next year with.

00:21:25.580 Let's suppose Trump won and Schumer took the Senate.

00:21:29.620 I think the odds are pretty high that they might not even fill any court of appeals judge seats.

00:21:35.700 At a minimum, if you had the Senate and the president of opposing parties, there would have to be major compromise on the nominee to get someone through.

00:21:46.200 Because I think it has become such a partisan divide in terms of what people are looking for in judges that I think both parties right now would be hesitant to.

00:21:59.900 Although, to be fair, Republicans have demonstrated a lot more willingness to confirm Democratic nominees than vice versa.

00:22:11.080 I remember, I think it was Justice Kennedy.

00:22:14.140 But as recently as Justice Kennedy was confirmed unanimously, Justice Ginsburg was confirmed overwhelmingly.

00:22:20.780 Now it seems that all of these are the are the biggest battleground of all.

00:22:25.180 Well, look, and Sotomayor and Kagan.

00:22:27.500 So both of Obama's appointees, there were a number of Republicans that voted to confirm them.

00:22:31.620 So there were many more Republicans.

00:22:34.000 I forget I wasn't there for Sotomayor and Kagan, but so Lindsey Graham voted to confirm both of them.

00:22:39.460 You remember when he got Lindsey got so mad at the Kavanaugh thing and he kind of blew up and had sort of the viral moment.

00:22:47.240 In fact, I told you when Lindsey did that, my mom texted me and said, OK, I love Lindsey Graham now.

00:22:53.760 That was in the Kavanaugh hearing.

00:22:55.800 And by the way, my mom is is quite conservative.

00:23:00.500 And I think it's fair to say she did not previously love Lindsey.

00:23:05.180 And so his the passion with which he unloaded.

00:23:08.620 But one of the things he said there is he said he voted to confirm both Sotomayor and Kagan.

00:23:13.140 And the Democrats had none of that reciprocity for Trump's nominees.

00:23:18.240 One last question before we go.

00:23:20.000 I know this is on a lot of people's minds because they keep asking me about it.

00:23:23.680 This is from Cole.

00:23:24.680 Cole is a poli sci student in Wisconsin.

00:23:28.980 What is the difference between originalism and textualism?

00:23:33.460 We hear these terms used as if they are synonyms, but they're not synonyms, right?

00:23:38.400 So they're not.

00:23:39.540 And the simplest difference is originalism refers to the Constitution and textualism refers to statutes, which are federal laws passed by Congress.

00:23:49.020 But it's not the Constitution.

00:23:51.020 So let's unpack that a little bit.

00:23:53.140 But that's the simplest way to think about it.

00:23:55.740 So originalism is how do you go about understanding the terms of the Constitution?

00:24:04.800 And originalism is you should understand the terms based on the original public meaning, not what the framers were thinking in their heads, not their subjective intentions.

00:24:15.920 Correct.

00:24:18.240 So let's take, for example, the Second Amendment, the right to keep and bear arms.

00:24:22.400 The operative language of the Second Amendment is the right of the people to keep and bear arms shall not be infringed.

00:24:29.040 And if you look at Justice Scalia's opinion in Heller, which is the landmark Second Amendment case, it has a great deal of analysis on what the phrase the right of the people was understood by the American people when the Constitution and specifically the Bill of Rights, the Second Amendment was ratified.

00:24:49.720 So in 1791, what that and the right of the people, it turns out, is a term of art.

00:24:55.520 It's used elsewhere in in the Bill of Rights.

00:24:59.160 It's used the right of the people peaceably to assemble so that it's clearly an individual right there.

00:25:05.720 It's also used that's in the First Amendment, the Fourth Amendment, the right of the people to be secure from unreasonable searches and seizures.

00:25:13.160 So one of the things Scalia walked through is the right of the people who is a term of art that always referred to an individual right, something that you as an individual can claim.

00:25:23.360 And what keep and bear arms means, not what James Madison was thinking, but what the American people, when when it was ratified, understood it to be.

00:25:34.880 That's originalism.

00:25:37.140 Textualism is how you interpret a statute, a federal law.

00:25:43.540 And the principle is it's actually it has similarities in that it is, again, the plain, plain meaning of the language based on the the public what was understood, what a reasonably infer informed observer would understood the language to be.

00:26:04.220 Now, there's some potential tension between the two.

00:26:08.540 And actually, some of the very last questioning today was from Senator John Kennedy, a Republican who got into some of the tension on it.

00:26:16.820 And it's interesting, you know, Kennedy is a very smart guy.

00:26:19.560 He kind of plays sort of like a Matlock country lawyer, but he's he's got some real great gray matter.

00:26:27.360 And I think he was enjoying pushing Judge Barrett. 0.98

00:26:30.140 He was having he was he was like a pig in slop. 0.83

00:26:34.240 He was having so much fun kind of just pushing her on this. 0.57

00:26:38.060 There is some arguable tension in that textualism avoids relying on what's called legislative history.

00:26:48.200 And to understand that some of it is you have to go back to how courts used to interpret statutes.

00:26:53.040 If you go back to the 1960s, the 1970s, there were decisions that would start with they basically ignore the language of the law.

00:27:03.320 They'd ignore the text of the statute and they'd say, well, here was the legislative intent.

00:27:09.560 Here's what Senator so and so said on the floor he wanted to do.

00:27:14.200 So that's what the statute is trying to do.

00:27:15.900 Or here's what this committee report said they were trying to do.

00:27:19.920 By the way, committee reports are often written by staffers who are never elected and they'll put things in committee reports to influence litigation later on.

00:27:31.000 So it was a particular way of sort of hiding something in there to influence a case.

00:27:35.840 That's not the law of the United States.

00:27:38.940 And so the leading proponent of textualism as a means of interpreting federal statutes was Justice Scalia.

00:27:47.140 And when he started really the 1980s, started in the 70s, but really the 1980s and went on to the Court of Appeals in the 1990s and 2000s on the Supreme Court, he refused to look at legislative history.

00:28:00.380 And he said, it's illegitimate.

00:28:01.700 It's not the law.

00:28:02.380 I'm not going to look at it.

00:28:03.660 A majority of the Supreme Court doesn't agree with that methodology, but Scalia almost single-handedly changed how courts look at statutes now.

00:28:14.100 Everyone starts with a text now.

00:28:16.060 I mean, it's really an amazing – you grab any statutory interpretation case from the 60s compared to today, it's night and day where even the most lefty judges start with the text.

00:28:27.380 They might disregard it, but they at least – the analysis begins there.

00:28:32.040 And so that – and I think that's a much fairer and more predictable way to decide cases.

00:28:39.760 One of the things you want in a nation of laws is predictable outcomes.

00:28:48.420 Right.

00:28:48.500 And, you know, if you're a private citizen, you're trying to determine what's the law say.

00:28:53.260 The easiest way to do it is go look at the text of the law, and if it's clear, that's – if you know that's going to be the answer, you can behave accordingly.

00:29:00.460 If a judge might follow the language, might not, might set it aside if he or she disagrees, that's much harder to predict when you don't know what judge is going to be deciding some case in the future.

00:29:11.860 And so that's textualism.

00:29:14.380 In our remaining few seconds here, speaking of predictable outcomes, do you have any predictions for what will go on during the hearings tomorrow, or is it anybody's guess?

00:29:25.180 So tomorrow we're going to have another round of questions.

00:29:28.120 It'll be shorter tomorrow.

00:29:29.280 It's only 20 minutes.

00:29:30.980 So instead of 30-minute rounds.

00:29:32.580 So the day presumably will end several hours earlier, which will be good.

00:29:36.140 And I think the Dems have run out of steam.

00:29:41.360 I think they've lost a lot of their energy.

00:29:48.060 I will say, by the way, Michael, I've got to credit you.

00:29:50.540 One of the better moments in the hearing was when my colleague John Cornyn asked Judge Barrett, said, you know, what notes do you have in front of you?

00:29:58.440 And she didn't have any binders.

00:30:00.920 She had nothing she was reading from.

00:30:02.280 And she just held up a blank notepad.

00:30:05.640 And I will say I'm impressed, Michael, that she held up what was apparently a page from your book.

00:30:12.660 It was entirely blank.

00:30:14.100 And that's what she was relying on.

00:30:15.920 And let me ask you something, Michael.

00:30:17.940 How do I write a book on the U.S. friggin' Supreme Court and she reads from your book and not my book at the hearing? 0.99

00:30:25.340 You know, Senator, you've shared so much of your wisdom with me.

00:30:29.940 At some point, I'm more than happy to brief you on my book.

00:30:33.220 I'm really honored.

00:30:34.900 You've played, I think, a more direct role in the history of this Supreme Court nomination and confirmation process.

00:30:42.500 I am pleased that I could play a modest role as Judge Barrett raised what was clearly a page from my blank book.

00:30:49.920 We will look forward to tomorrow.

00:30:51.560 By the way, on a reprint, you might want that image on the cover of your book now for holding up the blank page.

00:30:58.980 At a minimum, that's got to be like your online ad for the book.

00:31:02.140 I know.

00:31:02.500 I wonder, does it count as a blurb if she didn't say anything?

00:31:05.220 I don't know.

00:31:05.420 Perhaps.

00:31:05.860 Perhaps we'll add it to the next edition.

00:31:08.460 Senator, best of luck tomorrow at the hearings.

00:31:11.040 Until then, I'm Michael Knowles.

00:31:12.840 This is Verdict with Ted Cruz.

00:31:14.320 This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom, and Security Pack,

00:31:29.040 a political action committee dedicated to supporting conservative causes, organizations, and candidates across the country.

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Verdict with Ted Cruz - October 14, 2020

Becoming Justice Barrett

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