Day 2 Ted Cruz questions Supreme Court nominee Amy Coney Barrett
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xdavid

October 13, 2020

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On 10/13/2020, in Barrett Supreme Court confirmation hearing, Sen. Sheldon Whitehouse tied issues like abortion and health care to large donations to conservative judicial groups and statements from Republicans about court selections. Sen. Ted Cruz, R-Texas, spoke after Whitehouse and addressed his claims, pointing to dark money from liberal organizations such as Demand Justice, which spent $5 million in opposition to Justice Brett Kavanaugh’s nomination and has “launched a seven-figure ad buy” opposing Barrett.

“All of the great umbrage about ‘the corporate interests are spending dark money’ is widely in conflict with the actual facts of the corporate interests that are spending dark money are funding the Democrats by a factor of 3-1 or greater,” Cruz said. “A fact that doesn’t ever seem to be acknowledged.”

Senator Ted Cruz of Texas sought to flip them back on the opposing party, arguing that liberals, too, had sought to influence court selection.

“Our Democratic colleagues, when they address the issue of dark money and campaign-finance contributions, are often deeply hypocritical,” Mr. Cruz said. Cruz also talked about the Ten Commandments and the Second Amendment.
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Full Transcript
Cruz:
Thank you, Mr. Chairman. Judge Barrett, welcome. Congratulations on being nominated. Congratulations on enduring the confirmation proceedings. And I think it is a particularly good thing we’ve made it through what I guess you would call the top of the lineup of the questioning and some of the smartest and frankly, most effective questioners on the Democratic side. And I think it speaks volumes that collectively, they’ve had very few questions for you. And virtually none calling into question your credentials, which are impeccable [crosstalk 00:03:08:33]. Your record. And what I think is, has been an extraordinary life you’ve led. So, that should be the source of great satisfaction in terms of the scholarly record and judicial record that you’ve spent a lifetime building. I want to start by asking you a question. Why is the first Amendment’s protection of religious Liberty? Why is that important?

Barrett:
Well, I think it’s broadly viewed that the framers protected, and ratifiers, protected the free exercise of religion because for reasons that we all know from history of persecuted, religious minorities fleeing to the United States, that enshrining that protection it was one of the Bill of Rights because it was considered so fundamental.

Cruz:
And why does that matter to Americans? What difference does that make in anybody’s life?

Barrett:
Well, I think all of the Bill of Rights, each and every one of them, is important to Americans because we value the constitution, including religious Liberty.

Cruz:
Well, how about the free speech protections of the first amendment? Why are those important?

Barrett:
So that minority viewpoints can’t be squashed. So that it’s not just the majority that can speak popular views. You don’t really need the first amendment if what you’re saying is something that everybody wants to hear, you need it when people are trying to silence you.

Cruz:
And how about the second amendment? Why is the right to keep and bear arms important?

Barrett:
Well, we’ve talked about Heller earlier this morning and what Heller tells us is that the second amendment protects an individual right to bear arms for self-defense.

Cruz:
Well, I think all of those rights, and I agree with you, the entire Bill of Rights is incredibly important to Americans. I also think what is really striking about this hearing today and also yesterday, is that Senate Democrats are not defending what I think is really a radical agenda that they have when it comes to the Bill of Rights. And the topics they’re discussing today have little bearing to the rights that are really at issue and in jeopardy at the Supreme Court.

Cruz:
And so, let’s take a few minutes to go through them. First of all, we’ve had some discussion of Roe vs. Wade. You have declined to give an opinion on a matter that might be pending before the court. That is, of course, the same answer that every single sitting justice has given when he or she was sitting in the same chair you are. It is mandated by the judicial canons of ethics, whether one is a nominee of a Democratic president or a Republican president, that has been the answer that has been given to this committee for decades. But I do think it is interesting that our Democratic colleagues, number one, don’t discuss what would actually happen if there came a day in which Roe vs. Wade were overruled. Which is namely that it would not suddenly become the case that abortion was illegal, but rather it would revert to the status of the law as it’s been for nearly 200 years of our nation’s history. Which is that the question of the permissibility of abortion as a question for elected legislatures at the state level and at the federal level.

And it is difficult to dispute that there are a great many jurisdictions, including jurisdictions like California and New York, who even if Roe vs, Wade were no longer the law of the land, their elected legislatures would almost certainly continue unrestricted access to abortion with virtually no limitation. What I find interesting though, is that our Democratic colleagues do not discuss what is really the radical position of the most liberal justices on the Supreme Court. Which is that no restrictions whatsoever are permissible when it comes to abortion.

Yesterday, one of the Democratic senators made reference to the case Gonzalez vs. Carhart. I’m quite familiar with that case. And I represented Texas and a number of other States as a Miki in that case. That case concerned the constitutionality of the Federal ban on partial birth abortion. That was legislation that passed Congress was signed into law that made the really gruesome practice of partial birth abortion, illegal. Overwhelming majority of Americans believe partial birth abortion should be prohibited. Even those who identify as pro choice. A significant percentage of Americans don’t want to see that gruesome practice allowed. Supreme Court, by a vote of 5 to 4 in Carhart vs. Gonzales, upheld the federal ban on partial birth abortion. That means there were four justices ready to strike it down, ready to conclude that you can’t ban partial birth abortion, that you can’t ban late term abortion.

And by the way, other restrictions that are at question include parental consent laws, parental notification laws. None of our Democratic colleagues want to talk about the justices they want to see on the court would strike down every single reasonable restriction on unlimited abortion on demand that the vast majority of Americans support. How about free speech? Well, we’ve heard quite a bit about free speech. The Senator from Rhode Island just gave a long presentation, complete with lots of charts. I’ll say a couple of things on free speech.

First of all, our Democratic colleagues when they address the issue of so-called dark money in campaign finance contributions, are often deeply, deeply hypocritical, and don’t address the actual facts that exist. Here are some facts. Of the top 20 organizations spending money for political speech in the year 2016, 14 of them gave virtually all of their money to Democrats and another 3 split their money evenly. So, only 3 of the top 20 gave money to Republicans. What did that mean in practice? That meant the top 20 super PAC donors contributed $422 million to Democrats and 189 million to Republicans. Those who give these impassioned speeches against dark money, don’t mention that their side is funded by dark money with a massive differential. The Senator from Rhode Island talked about big corporate powers without acknowledging that the contributions from the fortune 500 in this presidential election overwhelmingly favor Joe Biden and The Democrats. Without acknowledging that the contributions from Wall Street in this election overwhelmingly favor Joe Biden and the Democrats.

It’s an awful lot of rhetoric about power. But it gets even more interesting when you look at Supreme Court nominations. We just heard an attack on the Federalist Society, a group that I’ve been a member of for over 25 years, I joined as a law student. It’s a group that brings Conservatives, Libertarians Constitutionalists together to have robust discussions about the Constitution and about the law.

What’s interesting is nowhere in the Senator of Rhode Island’s remarks was any reference to a company called Arab Baila Advisors, which is a for-profit entity that manages non-profits including the 1630 Fund in the new Venture fund. Now what on earth are those? Those sound like awfully dark and can be confusing names. Well, according to the Wall Street Journal this Sunday, in the year 2017 and 2018, those entities reported $987.5 million in revenue. That’s nearly a billion dollars. We heard a lot of thundering indignation at what was described as $250 million of expenditures. In this case, you’ve got a billion dollars.

The Senator Rhode Island said that that much money, much of which is dark money that we don’t know who contributed it, he asked what are they getting for it? And by the way, one of the things they’re getting for it is a group called Demand Justice. A project of those entities spent $5 million opposing Justice Brett Kavanaugh, and has just launched a seven figure ad by opposing your confirmation. So, all of the great umbrage about the corporate interest or spending dark money, is wildly in conflict with the actual facts that the corporate interests that are spending dark money are funding the Democrats. By a factor of 3 to 1 or greater. A fact that doesn’t ever seem to be acknowledged.

But not only that, what was Citizens United about? It’s interesting, most people at home they’ve heard about Citizens United. They know it makes Democrats very, very upset, but they don’t actually know what the case is about. Citizens United concerned, whether or not it was legal to make a movie criticizing a politician. Specifically, Citizens United is a small nonprofit organization based here in DC, that made a movie that was critical of Hillary Clinton. And the Obama Justice Department took the position that it could fine, it could punish Citizens United for daring to make a movie critical of a politician. The case went all the way to the U S Supreme Court at the oral argument there was a moment that was truly chilling. Justice Sam Alito asked the Obama Justice Department, ” Is it your position under your theory of the case that the Federal Government can ban books?” And the Obama justice Department responded, “Yes. Yes. It is our position that if the books criticize a political candidate, a politician, the Federal Government can ban books.” As far as I’m concerned, that is a terrifying view of the first amendment.

Citizens united was decided 5 to 4. By a narrow 5, 4 majority, the Supreme Court concluded the First Amendment did not allow the Federal Government to punish you for making a movie critical of a politician. And likewise, that the Federal Government couldn’t ban books. Four Justices to Senate. Four Justices were willing to say the Federal Government can ban books and can ban movies and presumably could ban books, as well.

When Hillary Clinton was running for president, she explicitly promised every Justice she nominated to the Court would pledge to overturn Citizens United. By the way, Hillary Clinton said she would demand of her nominee something you have rightly said that this administration is not demanded of you, which is a commitment on any case as to how you will rule. Democrats have shown no compunction in expecting their nominees to make a promise, here’s how I’m going to vote on a pending case, judicial ethics be damned.

Or how about the Second Amendment? We’ve heard some reference to the Heller decision. Senator from Connecticut yesterday, talked about reasonable gun control and gun safety provisions. Well, that of course was not what was at stake in the Heller decision. Number one, majority decision in Heller, Justice Scalia’s opinion, acknowledges reasonable provisions, things like prohibitions on felons and possession are permissible. Your opinion in the Canner decision, likewise acknowledged that restrictions preventing dangerous criminals from receiving firearms are entirely consistent and permissible under the Second Amendment.

But, the issue at Heller was much more fundamental. It was whether the Second Amendment protects an individual right to keep and bear arms at all. The vote in Heller was 5 to 4. By a vote of 5 to 4, the majority struck down the District of Columbia’s total prohibitions on owning an operative firearm in the District of Columbia. The argument of the four dissenters was not what our democratic colleagues talk about here. It wasn’t some reasonable gun control provisions are okay. That was not the argument of the dissenters. That question we can actually have a reasonable debate on, reasonable minds can differ on what the appropriate line should be, what are reasonable laws there. But that was not what was an issue at Heller.

The position of the four dissenters was the second amendment protects no individual right to keep and bear arms whatsoever, but merely a quote collective right of the militia. Which is fancy lawyer talk for a non-existent right. Four justices would have ruled that way. One vote away. The consequences of the court concluding that there is no individual right under the first amendment would mean you and I, and every American watching this, would lose your Second Amendment right. It would mean the Federal Government, the State Government, the city, could ban guns entirely, could make it a criminal offense for any one of us to own a firearm and no individual American would have any judicially cognizable right to challenge that.

That is a radical reading of the constitution. That is effectively erasing the Second Amendment from the Bill of Rights. And Hillary Clinton, likewise, promised in 2016 that every Justice she nominated would commit to voting to overturn Heller. They were big on…

Would commit to voting to overturn Heller, they were big on litmus tests. And Joe Biden, although he refuses to answer just about anything. About whether or not he’s going to pack the court, he did tell the American people, the voters don’t deserve to know whether he is going to pack the court. Truly a statement of disrespect and contempt for the voters, unusual in our political process. One vote away from the second amendment being erased from the bill of rights. One of our democratic colleagues admit that that is their agenda, and yet those are the justices that democratic presidential nominees are promising they will appoint. Justices who will take away your right to criticize politicians, justices who will allow censorship, justices who will allow movies and books to be banned. Justices who will erase the second amendment from the bill of right.

And how about religious liberty? religious liberty is an issue near and dear to a great many of us. The right of everybody American to live according to your faith, according to your conscience, whatever that faith may be. religious liberty is fundamentally about diversity. It’s about respecting diversity, that whatever your faith tradition might be, the government is not going to trample on it. religious liberty cases over and over again had been decided five, four, the case of Van Orden versus Perry, a case I litigated. Dealt with the 10 commandments monument that stands on the state Capitol ground, has been there since 1961 in Texas. An individual plaintiff, an atheist, a homeless man filed a lawsuit seeking to tear down the 10 commandments. The case went all the way to the US Supreme Court, it was decided five to four. Four justices were willing to say in effect, send in the bulldozers and tear down that monument, because you can’t gaze on the image of the 10 commandments on public land.

Another case, the Mojave desert veterans Memorial. This is a Memorial erected to the men and women who gave their lives in World War One. It’s a lone white, Latin cross, simple and bare in the middle of the desert. I’ve been there on sunrise rock where it stands. The ACLU filed a lawsuit saying you cannot gaze on the image of a cross on public land, and the ACLU won in the district court. They won in the ninth circuit court of appeals. The federal court ordered that veteran’s Memorial to be covered up with a burlap sack with a chain on the bottom, and then apply wood box.

When the case to the US Supreme Court, I represented 3 million veterans pro bono, for free, defending that veterans Memorial. We won five, four, and there were four justices prepare to say, “tear down the veterans Memorial.” And under the reasoning that they put forth, they were not far away from saying, “bring out the chisels and remove the crosses and the stars of David on the tombstones of the men and women that gave their lives at Arlington cemetery, defending this nation.” That is a radical view, and we’re one vote away. That is utterly contrary to the text of the first amendment, to the understanding of the first amendment.

When we argued the 10 commandments case to the US Supreme Court, there was more than a little bit of irony. In that, do you know how many times the image of the 10 commandments appears in the courtroom of the Supreme Court? The answer to that is 43. There were two images of the 10 commandments carved on the wooden doors. As you walk out of the courtroom, you will soon be sitting looking at them. There are 40 images of the 10 commandments on the bronze gates on both sides of the courtroom. And then Judge Barrett, when you’re sitting at the bench above your left shoulder will be a phrase you know well. A phrase carved into the wall of great law givers, one of whom is Moses. He is standing there holding the 10 commandments. The text of which is legible in Hebrew, as he looks down upon the justices. And four justices were willing to say in effect, “bringing out the sandblaster, because we must remove God from the public square.”

That is a profound threat to our religious liberty. And I would note that it doesn’t just extend to public acknowledgements. It also extends to religious liberty. The Little Sisters of the Poor are Catholic convent of nuns who take oaths of poverty. Who devote their lives to caring for the sick, caring for the needy, caring for the elderly. And the Obama administration litigated against The Little Sisters of the Poor seeking to find them, in order to force them to pay for abortion inducing drugs among others. It’s truly a stunning situation when you have the federal government litigating against nuns. Supreme court decided the Hobby Lobby case and other case routinely denounced by Senate Democrats. The Hobby Lobby case concluded that the federal government could not permissibly force a Christian business to violate their faith. It reflected the religious liberty traditions of our country, that you can live according to your faith without the government trampling on it.

You know what this body did, I’m sorry to say. Senate Democrats introduced legislation to gut The Religious Freedom Restoration Act. Religious Freedom Restoration Act, when it passed this body, passed with a overwhelming bipartisan majority. Senate Democrats, including Chuck Schumer, Joe Biden and Ted Kennedy all voted for the Religious Freedom Restoration Act. Democratic president, Bill Clinton signed The Religious Freedom Restoration Act. And yet in the wake of the Hobby Lobby decision, this body voted on legislation to just gut the protections for religious liberty. And I’m sorry to say, every single Senate Democrat voted to do so. Not a single one, zero, would defend religious liberty.

Joe Biden has already pledged if he’s elected, he plans to initiate again the attack on The Little Sisters of the Poor. It’s interesting folks in the press like to talk about Pope Francis, and on some issues Pope Francis has been vocal. When it comes to the environment, when it comes to issues concerning immigration, the Pope has been vocal on issues that our democratic colleagues like and agree with. The press is happy to amplify those views. Somehow missing from that amplification is acknowledgement that when the Pope came to the United States in Washington, he went and visited The Little Sisters of the Poor. Here in DC, he went to their home here in DC, and the Vatican explained he did so because he wanted to highlight their cause. That the federal government shouldn’t be persecuting nuns for living according to their faith. That what’s at stake in these nominations.

And you won’t hear any of that from the Senate Democrats on this committee. That’s why their base is so angry at your nomination Judge Barrett, because they don’t believe you are going to join the radical effort to erase those fundamental rights from the Bill of Rights. I believe that issue, preserving the constitution, preserving the Bill of Rights, our fundamental liberties, I believe is the most important issue facing the country in the November elections. And I think for those of us who value those rights, we should take solace in the fact that not a single Democrat is willing even to acknowledge the radical sweep of their agenda, much less defend it. They know it’s wildly unpopular, and look right at the heart of this is a decision many Democrats have made to abandon democracy.

You see most policies, policies like Obamacare, policies like healthcare. Most policies under our constitutional system are meant to be decided by democratically elected legislatures. Why? So they can be accountable to the people. So if the voters disagree, they can throw the bums out. But too many Democrats have decided today that democracy is too complicated. It’s too hard to actually convince your fellow Americans of the merits of your position. It’s much easier just to give it to the courts. Find five lawyers in black robes and let them decree the policy outcome you want, which makes your radical base happy. Presumably makes the millions, if not billions in dark money being spent for Democrats happy, without actually having to justify it to the American people. Judge Barrett, I’m not going to ask you to respond to any of that, but I do want to shift to a different topic. Which is a bit more about you personally, your background. Judge Barrett, do you speak any foreign languages?

Barrett: Once upon a time I could speak French, but I have fallen woefully out of practice. So please don’t ask me to do that right now.

Cruz:
You can be assured of that, because I had two years of high school French, and I suspect yours remains much better than mine. How about music? Do you play any instruments?

Barrett: The piano.

Cruz: Do you? How long have you played the piano?

Barrett: Well, I played the piano growing up for 10 years, and now most of my piano playing consists of playing my children’s songs for them and supervising their own piano practice. I look forward, one day when I have more time, to be able to choose some of my own music.

Cruz: Now, do the kids do piano lessons as well?

Barrett: The kids do piano lessons. Some of the older ones who are in high school have gotten so busy with sports and those things that they’ve stopped, but the younger children do.

Cruz: Our girls are nine and 12 and they both do piano lessons. And I will say at least in our household, it is less than voluntary. One of the things Heidi and I found, particularly the last six months during COVID, which has been an extraordinary crisis. Is just with two kids at home that doing distance learning when schools were shut down was really hard for us with two children. For you and your husband, you’ve got seven kids. How did you all manage through the lockdowns and distance learning? What was that like in the Barrett household?

Barrett:
Well, it was a challenging time as it was for every American. Our oldest daughter, Emma, who’s in college, moved home at that point. Because she’s at Notre Dame, it closed. So Emma obviously could manage her own e-learning, and our high school age children, Tess and Vivian could too. But Jesse and I just tried to take a divide and conquer approach for the younger four. And yeah, it was quite challenging I assure you.

Cruz:
One part of your story that I find particularly remarkable and that I admire is the decision you made to adopt two children. You and your husband had five biological children and you adopted two more. Both of your adopted children are from Haiti. Haiti is a country that has some of the most crushing poverty in the world. My brother-in-law is a missionary in Haiti, and actually Heidi the girls just got back from Haiti a couple of weeks ago. Just curious if you would share with this committee and with the American people, what led you and your husband to make the decision to adopt? It’s, I think, one of the most loving and compassionate decisions any family can make.

Barrett:
When Jesse and I were engaged, we met another couple who had adopted… In this instance, it was a couple who had adopted a child with special needs. And then we also met another couple who had adopted a few children internationally. We decided at that point, while we were engaged, that at some point in the future we wanted to do that ourselves. I guess we had imagined initially that we would have whatever biological kids that we had decided to have, and then adopt at the end. But after we had our first daughter, Emma, we thought, well, why wait? So I was expecting Tess when we went and got Vivian. She and Tess, I functionally call them my fraternal twins. They’re in the same grade, and it really has enriched our family immeasurably. Once we had adopted Vivian at that point, then we made the decision that we definitely wanted to adopt again. So several years later, John Peter entered our family.

Cruz: Your children have been wonderfully well behaved. I think you’re an amazing role model for little girls. What advice would you give little girls?

Barrett: Well, what I’m saying is not designed. My brother now has left, I was just thinking of what my dad told me before the spelling bee about anything boys can do, girls can do better. And since my sons are sitting behind me, I’ll also say, “but boys are great too.”

Cruz: Thank you.
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