00:04:43.560They know they're not going to stop or they don't have any substantive issue.
00:04:47.600And so they're going through the motions.
00:04:49.680But but it actually felt today like like more than a few of the Democratic senators were basically phoning it in like they had.
00:04:56.940And they had to fill their 30 minutes.
00:04:59.660But but they didn't really believe they were going to get anywhere in terms of stopping the nomination.
00:05:04.720I 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.
00:05:16.640And the attacks didn't play very well.
00:05:18.900And fortunately, we're not we're not really seeing any more of those.
00:05:21.780I remember Dick Durbin, now the number two Democrat in the Senate.
00:05:25.560He came out and more or less said that all Democrats could do was slow this thing down a little bit.
00:05:31.780But ultimately, they couldn't do anything to stop Barrett on the court.
00:05:35.120So if they're not going to lob those attacks and the attacks they're lobbying aren't working, what are they doing?
00:05:41.540What was the line of questioning that the Democrats were pursuing?
00:05:44.300So 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.
00:05:57.040And he asked her then, this is three years ago, if she was an Orthodox Catholic.
00:06:15.520What what is an Orthodox Catholic other than beyond, I guess, from a Senate Democrats perspective, someone who actually believes the stuff?
00:06:27.980She doesn't have one of those long beards.
00:06:29.860She is Catholic and she's Orthodox, meaning she believes what the Catholic Church believes.
00:06:33.920This 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.
00:06:45.460So I can understand Senator Durbin's confusion.
00:06:48.480He probably doesn't know very many Orthodox Catholics.
00:06:50.680But as you say, I recall that attack did not play very well for Senator Durbin three years ago.
00:06:56.020And I think he probably wanted to caution his colleagues now.
00:06:59.960Well, Feinstein infamously said with regard to Judge Barrett three years ago, the dogma lives loudly in this one.
00:07:07.400And it was a moment of really, I think, contempt and religious bigotry that that that backfired, as I'm glad it did.
00:07:36.220I 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.
00:08:33.600If 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.
00:10:10.480Well, on the health care point, I was speaking to a fairly prominent Democrat operative during the midterms a couple of years ago.
00:10:16.640And 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.
00:10:27.400Right. 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.
00:10:35.820It's obviously much less contentious than, say, abortion or or going after somebody's faith or something to that effect.
00:10:41.860Well, 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.
00:12:18.600Ben Sasse later in the afternoon referred to it as a beautiful mind presentation.
00:12:23.560But there's a reason for his presentation.
00:12:29.700So White House has been pushing this for a long time.
00:12:35.740There's a concerted effort to delegitimize the court.
00:12:38.440And 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.
00:12:51.820And this is connected to their whole effort to pack the court.
00:12:56.180This is all Sheldon's objective is to delegitimize the Supreme Court.
00:13:00.900And my questioning was immediately after his.
00:13:05.100And that's usually the case in terms of the seniority.
00:13:07.420I normally go between White House and Klobuchar.
00:13:11.820And so often I'm off often have a chance to respond to White House.
00:13:17.140And 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.
00:13:24.240But but it makes it makes lefties really happy when she attacks me.
00:13:35.020So White House, I took the chance to really lay into his premise as as, you know, in the world of campaign finance reform.
00:13:43.220So and this is something Sheldon says all the time, but Democrats say all the time is big money is behind the Republicans.
00:13:49.240It 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.
00:13:55.240So 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?
00:14:08.440The top 20 14 gave almost exclusively to Democrats.
00:14:12.400Three gave about evenly Democrat and Republican, and only two of the top 20 gave primarily to Republicans overwhelmingly.
00:14:21.320And 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.
00:14:31.500Democrats had four hundred and twenty two million dollars.
00:14:33.600And it was, you know, and and and, you know, Sheldon was bellowing, you know, these mysterious dark money donors.
00:14:43.260You don't give that kind of money for nothing.
00:14:45.180I 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.
00:14:56.760But 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.
00:15:10.280The entire narrative that it's big corporate interests supporting Republicans, it's just not right.
00:15:18.400But what you what you've pointed to here, Senator, I think is key because I couldn't I couldn't make sense of it.
00:15:23.660I 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?
00:15:29.960You know, he had step one, raise a lot of money.
00:15:51.500And 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.
00:16:02.520And so I use my questioning to talk quite a bit about what the Democrats want to see from left wing Supreme Court justices.
00:16:12.440As 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.
00:16:19.120A New York Times bestseller, I believe.
00:16:29.660Um, there's a chapter in the book on Citizens United.
00:16:35.760And 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.
00:16:45.280And so I explain Citizens United was at its heart about whether we can criticize politicians.
00:16:52.800And in particular, so what happened, Citizens United is a small nonprofit organization based in D.C.
00:17:00.900They made a movie that was critical of Hillary Clinton.
00:17:03.740And the Obama Justice Department went after them and wanted to be able to fine them for daring to criticize Hillary Clinton in a movie.
00:17:13.740And the case went all the way to the Supreme Court.
00:17:16.600And there was one exchange at the oral argument, Michael, that was really chilling.
00:17:20.340Where Justice Sam Alito asked the lawyer for the Obama Justice Department said, under your theory of the case, can the government ban books?
00:17:33.200And the Obama Justice Department lawyer said, yes, yes, the government can ban books if they're critical of a politician.
00:17:42.060And ultimately, the court struck that down 5-4.
00:17:47.080But there were four justices ready to say that the government can ban movies and the government can ban books.
00:17:56.340And 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.
00:18:08.080The government has the power to ban movies or books if they don't like the content of them.
00:18:13.060And that's really terrifying. And that's what White House and the other Democrats were trying to build the predicate for.
00:18:19.260They want to be in charge, frankly, of silencing you, of silencing me, of silencing anyone who says something they disagree with.
00:18:26.960Before we get to mailbag, I do want to get to a mailbag question.
00:18:29.800I do have to ask this, though, Senator.
00:18:31.500I 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.
00:18:42.160And then, tell me I'm crazy. Tell me I misheard it while I was watching today.
00:18:47.340Did Senator Mazie Hirono of Hawaii actually ask Judge Barrett if she had sexually harassed anybody?
00:18:55.680Since 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?
00:19:15.500So she did. And I will admit it was one of the most incongruous moments.
00:19:21.600Like 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.
00:19:29.980But 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.
00:19:47.260And she's done that since she got elected. And so it's if you're nominated.
00:19:52.680To 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.
00:20:00.560And 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?
00:20:12.380And look, I think it's a reasonable thing for the Senate to ask.
00:20:15.860And and I think it's fine that she applies it even handedly and consistently.
00:20:20.440I think it's actually a good thing that she applies it to everyone.
00:20:23.380Well, a very fine, kind word to say about Senator Hirono.
00:20:26.620And I think we're all very pleased that Judge Barrett was able to answer that very quickly.
00:21:20.880If, for example, we started next year with.
00:21:25.580Let's suppose Trump won and Schumer took the Senate.
00:21:29.620I think the odds are pretty high that they might not even fill any court of appeals judge seats.
00:21:35.700At 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.
00:21:46.200Because 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.
00:21:59.900Although, to be fair, Republicans have demonstrated a lot more willingness to confirm Democratic nominees than vice versa.
00:22:11.080I remember, I think it was Justice Kennedy.
00:22:14.140But as recently as Justice Kennedy was confirmed unanimously, Justice Ginsburg was confirmed overwhelmingly.
00:22:20.780Now it seems that all of these are the are the biggest battleground of all.
00:23:39.540And the simplest difference is originalism refers to the Constitution and textualism refers to statutes, which are federal laws passed by Congress.
00:23:53.140But that's the simplest way to think about it.
00:23:55.740So originalism is how do you go about understanding the terms of the Constitution?
00:24:04.800And 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.
00:24:18.240So let's take, for example, the Second Amendment, the right to keep and bear arms.
00:24:22.400The operative language of the Second Amendment is the right of the people to keep and bear arms shall not be infringed.
00:24:29.040And 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.
00:24:49.720So in 1791, what that and the right of the people, it turns out, is a term of art.
00:24:55.520It's used elsewhere in in the Bill of Rights.
00:24:59.160It's used the right of the people peaceably to assemble so that it's clearly an individual right there.
00:25:05.720It'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.
00:25:13.160So 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.
00:25:23.360And 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.
00:25:37.140Textualism is how you interpret a statute, a federal law.
00:25:43.540And 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.
00:26:04.220Now, there's some potential tension between the two.
00:26:08.540And actually, some of the very last questioning today was from Senator John Kennedy, a Republican who got into some of the tension on it.
00:26:16.820And it's interesting, you know, Kennedy is a very smart guy.
00:26:19.560He kind of plays sort of like a Matlock country lawyer, but he's he's got some real great gray matter.
00:26:27.360And I think he was enjoying pushing Judge Barrett.
00:26:30.140He was having he was he was like a pig in slop.
00:26:34.240He was having so much fun kind of just pushing her on this.
00:26:38.060There is some arguable tension in that textualism avoids relying on what's called legislative history.
00:26:48.200And to understand that some of it is you have to go back to how courts used to interpret statutes.
00:26:53.040If you go back to the 1960s, the 1970s, there were decisions that would start with they basically ignore the language of the law.
00:27:03.320They'd ignore the text of the statute and they'd say, well, here was the legislative intent.
00:27:09.560Here's what Senator so and so said on the floor he wanted to do.
00:27:14.200So that's what the statute is trying to do.
00:27:15.900Or here's what this committee report said they were trying to do.
00:27:19.920By 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.
00:27:31.000So it was a particular way of sort of hiding something in there to influence a case.
00:27:35.840That's not the law of the United States.
00:27:38.940And so the leading proponent of textualism as a means of interpreting federal statutes was Justice Scalia.
00:27:47.140And 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.
00:28:03.660A majority of the Supreme Court doesn't agree with that methodology, but Scalia almost single-handedly changed how courts look at statutes now.
00:28:16.060I 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.
00:28:27.380They might disregard it, but they at least – the analysis begins there.
00:28:32.040And so that – and I think that's a much fairer and more predictable way to decide cases.
00:28:39.760One of the things you want in a nation of laws is predictable outcomes.
00:28:48.500And, you know, if you're a private citizen, you're trying to determine what's the law say.
00:28:53.260The 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.
00:29:00.460If 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.
00:29:14.380In 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?
00:29:25.180So tomorrow we're going to have another round of questions.
00:29:32.580So the day presumably will end several hours earlier, which will be good.
00:29:36.140And I think the Dems have run out of steam.
00:29:41.360I think they've lost a lot of their energy.
00:29:48.060I will say, by the way, Michael, I've got to credit you.
00:29:50.540One 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?