Day 3 Ted Cruz questions Supreme Court nominee Amy Coney Barrett

October 14, 2020


On 10/14/2020, in Barrett Supreme Court confirmation hearing, Sen. Ted Cruz mocked Democrats for being absent from the hearing room during the second full day of questioning for Barrett. “It is striking that as we sit here right now in this committee room, there are only two Democratic senators in the room,” he said. “The Democratic senators are no longer attending. I assume they will show up for their time, but it is indicative of what they are admitting, which is that they don’t have substantive criticisms.”

Cruz also said, “Obamacare has doubled the profits of the big health insurance companies, doubled them. Obamacare has been great corporate welfare for giant health insurance companies at the same time, according to the Kaiser foundation, premiums — average families’ premiums — have risen more than — have risen $7,967 per year on average. That is catastrophic that millions of Americans can’t afford health care. It is a catastrophic failure of Obamacare.”

Democratic Rhode Island Sen. Sheldon Whitehouse warned about ‘outside forces pulling strings’ in the SCOTUS nomination process. He tried to explain his concerns about how dark money, the Federalist Society, and the Judicial Crisis Network have been fueling the conservative campaign to seat Supreme Court justices. Cruz criticized Democrats’ “assault on the Federalist Society” and its efforts to appoint conservative judges like Barrett to the federal bench, “I wish Sen. Whitehouse were here…I was feeling a little bit bad that I didn’t have a chart with red fuzzy yarn…” Cruz also said policy disputes over issues such as health care and school choice are best handled by the legislature, rather than the judiciary. “It’s not a judge’s role” to mandate policies favored by either Republicans or Democrats, he argued. Lastly, he expressed concern over the idea of “packing the court” with more justices.
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Full Transcript

Cruz: Thank you, Mr. Chairman. Let me say, first of all, the last three days of hearings have revealed very good news. They have revealed the news that Judge Barrett is going to be confirmed by this committee and by the full Senate. With two full days of questioning, we’ve seen that our democratic colleagues have very few questions actually, to raise about Judge Barrett’s qualifications. Very little of the time we’ve spent in here has concerned her record as a judge, her 20 years as a respected scholar. Instead, much of this hearing has focused on political attacks directed at president Trump. I recognize our democratic colleagues are not going to be voting for president Trump in November, that’s certainly their prerogative.

But they’ve largely abandoned even trying to make the case that Judge Barrett is anything other than exceptionally well qualified to serve as a justice. It is striking that as we sit here right now in this committee room, there are only two democratic senators in the room. If you look at the dais, there’s chair after chair, after chair, that is empty, the democratic senators are no longer even attending. I assume they’ll show up for their time. But it is indicative of what they’re tacitly admitting, which is that they don’t have substantive criticism.

Mr. Durbin: Mr. Chairman, may I make a point of personal privilege?

Cruz: Of course.

Mr. Durbin: We’re in the midst of a COVID 19 crisis, a pandemic, and some members are in their offices following this on television. And to suggest their absence here means they’re not following or participating, is incorrect.

Cruz: I would note the Senator from Illinois and his personal privilege, somehow omitted the fact that all but two of the Democrats were physically here yesterday and after the questioning, made the decision not to be here. That’s fine, you’re welcome to make that decision, but it’s indicative, when it comes to the time of the questioning, that this side of the aisle does not have arguments against Judge Barrett that have any chance of prevailing. I do want to address a couple of the individual points that have been made. So many of the democratic senators have talked about Obamacare, at great length. At times I have been confused and I thought we were on the health committee instead of judiciary committee, because it has been such a central talking point for every Democrat, that if president Trump is reelected, they assert everyone with preexisting conditions is going to be denied healthcare and people will be dying in the streets. And I get that’s their reelection message, it’s not actually connected.

… that’s their reelection message. It’s not actually connected to reality. It’s not actually true. Every member of the Senate agrees we’re going to protect pre-existing conditions. And I would note that not one of the Democratic senators who raised that point have addressed the very real and catastrophic failures under Obamacare. Obamacare has doubled the profits of the big health insurance companies, doubled them. Obamacare has been great corporate welfare for giant health insurance companies. At the same time, according to the Kaiser Foundation, premiums, average family’s premiums, have risen $7,967 per year on average. That is catastrophic that millions of Americans can’t afford healthcare. It is a catastrophic failure of Obamacare, and none of that has anything to do with Judge Barrett’s nomination to the Supreme Court. That is a very good argument for members of the Senate to be having.

And yes, we should be protecting pre-existing conditions and expanding competition, expanding options and lowering premiums. This body will continue to debate that, but Judge Barrett will not be the decision maker on what the appropriate approach to health care is as a policy matter. A second point I want to address… Senator Durbin had an exchange with Judge Barrett about the right to vote, and also about the Second Amendment. Now as a policy matter, many Senate Democrats number one, want to see the Second Amendment abridged to the maximum extent possible. And number two, many Senate Democrats have decided as a policy matter that they would like to see as many felons as possible able to vote. That it is, one word presume they have made a determination it’s in their political interest to have more felons, more convicted murderers, more convicted rapists, more people convicted of domestic abuse, voting. They made an assessment that that helps their prospects on Election Day.

They’re entitled to make that that policy determination, and different states have made different determinations about in what circumstances felons should be allowed to vote, in what circumstances felons should not be allowed to vote. I for one am a bit puzzled. I’m not sure our democracy is better by changing the law to allow murderers to vote. I’m not sure the operation of the republic would be better if Charles Manson had a greater voice in the electoral system. And I would note one of our colleagues, Senator Sanders from Vermont, of course of the Democratic presidential primaries, argued not just felons who are out of jail. He argued that felons in jail, literally Charles Manson serving a life sentence, I think multiple life sentences for murder, should be able to vote. It’s a policy matter. I think that’s pretty out there. But the interesting thing is Judge Barrett wasn’t called upon to make a determination whether as a policy matter, every felon should vote or no felon should vote, or somewhere in between.

Rather, she was doing a very different thing, which is applying the law. And Judge Barrett, did I hear you correctly that when you were describing your dissent in the countercase that one of the reasons you said that there was a difference in the law as a concern voting versus the Second Amendment is because the Fourteenth Amendment, the text of the Fourteenth Amendment, explicitly contemplates legislatures making restrictions on voting based on whether you’ve committed a crime? Is that right?

Barrett: That’s right.

Cruz: And I actually have the text of the Amendment, because Senator Durbin was highly critical. As a policy matter, he wants those felons voting, but he didn’t in fact address the legal issue that as a judge, Judge Barrett was obliged to address, and section two of the Fourteenth Amendment provides in relevant part. “But when the right to vote at any election is denied or is any way abridged, except for participation in rebellion or other crime…” Well, Senator Durbin may not like that the Fourteenth Amendment explicitly contemplates that if you commit a crime, if you’re a felon, you may forfeit your right to vote, but that is in the text of the Constitution. And as a judge, Judge Barrett would be not doing her job were she not to look at the text of the Constitution and follow the text of the Constitution. Am I right, Judge Barrett, that the Second Amendment doesn’t have similar language suggesting… Or other crime, or anything comparable to that?

Barrett: You are correct.

Cruz: All right, a third point. There’s been some discussion from Democratic members raising the question of the Federalist Society, and dark money, and all sorts of mysterious connections. Now, Judge Barrett, am I right that at least for a period of time, you were a member of the Federalist Society? Is that right?

Barrett: While I was on the faculty as a full-time tenured professor.

Cruz: And you’ve spoken at some Federalist Society events, is that accurate as well?

Barrett: I have.

Cruz: In your time dealing with the Federalist Society, have they ever lobbied you to take a particular position?

Barrett: They have not.

Cruz: In your time as a judge, has the Federalist society ever filed a brief in your court urging an outcome in a particular case?

Barrett: It’s my understanding the Federalist Society doesn’t litigate. They have not ever filed a brief in my court.

Cruz: Your understanding is correct. The Federalist Society does not file Amicus briefs. Our Democratic colleagues have been engaged in a sustained effort to try to sully the Federalist Society. It is disconnected from reality, but I will say… And I wish Senator Whitehouse were here. My intention was to have this discussion with him here, because he just spoke and spoke about all the connections he had, his charts. I would note, I was feeling a little bit bad that I didn’t have a chart with sort of red fuzzy yarn connecting all the things that are the deep conspiracies going on. So in that interest, I do have a chart that’s a little bit smaller that has similar connections back and forth. And it is produced by… What is it? The Americans for Public Trust. And it shows the dark money connections between Senator Whitehouse and Planned Parenthood and Arabella Advisors, and all of these different organizations with money flowing back and forth and back and forth, all the dark money.

And in fact, I would note one of those dark money organizations on the left that we talked about yesterday, that is the Demand Justice organization. I would point out the Demand Justice organization has decided to be directly involved in these proceedings, because this is a left-wing dark money organization that has posters that are right outside of this building, that have pictures… Senator Lee, you’re on the poster. Chairman Graham, you’re on the poster, and the posters say, “Supreme super spreaders. Politics first, health and safety last.” You know what? The First Amendment is a great thing. If they want to put your pictures up… It’s pretty good picture of Senator Lee. It’s not as good a picture of… Chairman Graham needs to work on getting a better picture to them.

Chairman Graham: It’s not their fault.

Cruz: The Democratic dark money efforts dwarf the Republican dark money efforts, which is why without a twinge of hypocrisy, Democratic members make this charge repeatedly. And in fact, I will point to one specific example, which is a judge. John J. Jack McConnell, who was a judge in the state of Rhode Island. Now, who is Judge McConnell? Well, he used to be the Treasurer of the Rhode Island Democratic Party, and a director of the Rhode Island branch of Planned Parenthood. Well, how did Mr. McConnell become a judge? Well, according to CQ roll call, he contributed about $500, 000 to Democratic political committees before becoming a judge. This, by the way, is more than any other judge nominated by Obama or Trump. So Judge McConnell stands at the top, $500,000. He donated $12,600 to Senator Whitehouse. He hosted a fundraiser for Senator Whitehouse at his home in Providence in 2006. Judge McConnell’s wife gave another $250,000 to candidates and causes, so that’s $750,000. And now Judge McConnell is a judge after Senator Whitehouse vigorously led the fight to get him appointed to judge. He sits on the Committee on Code of Conduct of the US Judicial Conference, and what has he done on the Committee on Code of Conduct? He has helped lead the charge to issue a new rule to try to ban judges from being members of the Federalist Society. And to the shock of no one, looking at the red yarn connections, after Judge McConnell and the committee put out this assault on the Federalist society to prohibit judges from being members, Senator Whitehouse and six other Democratic senators loudly cheered that effort in writing. Now fortunately, that effort was roundly denounced. Over 200 federal judges signed a letter opposing this.

Cruz: The Federalist Society takes no positions. It doesn’t lobby, doesn’t file Amicus briefs, doesn’t take public policy positions. Most of its events are debates where people on the left are featured prominently. Every single US Supreme Court justice, all of them, have spoken at at least one Federalist Society event. And thankfully, the assault on the Federalist Society was withdrawn in the face of over 200 federal judges, and I would note 29 senators, roundly criticizing the attempt. Let’s turn to the fourth issue. Many Democratic members of this committee seem to be treating this hearing as a policy hearing on what’s good healthcare policy, what’s good gun policy, what’s good voting rights policy. Judge Barrett, in your view, is it the responsibility of a federal judge to implement policy positions that they might happen to agree with?

Barrett: That’s your job, not a judge’s.

Cruz: I very much agree with you. You know, it’s easy for someone watching these proceedings to assume both sides want the same thing, just on opposite partisan lines. It’s easy for someone watching to assume, “Well, the Democrats, they want Democrat judges to implement their policy, and the Republicans, they want Republican judges to implement their policy.” As easy as that is to assume, I don’t believe that is accurate. It is certainly not accurate with respect to the sorts of judges I would like to see nominated and confirmed, and I’ll give you an example of that. An issue that I am deeply passionate about is school choice. I think school choice is the civil rights issue of the next century, but I also think the right arena to fight for school choice is right here in the United States Senate. The right arena to fight for school choice in the state legislature, as it is in the politically accountable elected legislatures.

Cruz: So, do I want to see a federal court issue an order mandating school choice across the country? It might be simpler if I could just convince five justices to order every jurisdiction in America, “You must have school choice.” It would be a lot easier than trying to convince 51 or 60 senators trying to convince the House. We’ve gotten school choice legislation passed through this body that I’ve introduced, but it’s been hard fought. It’d be much easier if five philosopher kings could just mandate it, but that would not be an appropriate judicial role. And I’m certainly not asking Judge Barrett to issue any ruling, although I believe that policy is the right policy. It’s not a judge’s role to mandate it. Interestingly enough, our Democratic colleagues do support judges prohibiting it. If you look at a case called Zelman v. Simmons-Harris, that was a case that was a challenge to Ohio school choice program.

Cruz: Ohio school choice program gave scholarships to thousands of low income children, mostly African-American and Hispanic children trapped in failing schools. It gave them hope. It gave them a chance at a decent education, a chance to escape violence, a chance to have a shot at the American dream. It was immediately challenged. The case went to the Supreme Court, and by a vote of five to four, the Supreme Court upheld the program. Four justices were prepared to strike down that program as unconstitutional, and with it, every other school choice program in America. To rule that the Constitution doesn’t let the elected legislatures decide to give scholarships to kids if they choose to go to a religious institution.

Cruz: As far as I’m concerned, that’s a radical and activist position. Four justices were ready to shut down school choice programs all across the country. That’s an example of how one side wants the court to mandate their policy outcomes. The other side does not. I don’t want school choice mandated. I want it to be left to the political process. For my last couple of minutes, I want to address one other issue, which is the issue of packing the court. We have seen, repeatedly, Joe Biden and Kamala Harris refuse to answer whether they would pack the court. What does it mean to pack the court? Packing the court means one very specific thing, which is expanding the number of justices to achieve a political outcome. Packing the court is wrong. It is an abuse of power. I believe, should they win in November, that our Democratic colleagues will pack the court.

Cruz: I think that’s why Joe Biden refuses to answer it, although he did say when asked the voters don’t deserve to know his answer as to whether he’ll pack the court. And what we’ve seen this past week is we’ve seen, with a message discipline that is really quite remarkable, Democratic senators all making a new argument that what Republicans have done for four years is packing the court. With all due respect, what utter nonsense. Filling judicial vacancies is not what that term means, and they are endeavoring to redefine the language, to set the framework, to set the predicate for a partisan assault on the court. I will read you some quotes. Joe Biden in 1983, quote, “FDR’s court-packing idea was,” quote, “a boneheaded idea. It was a terrible, terrible mistake to make. And it put in question an entire decade, the independence of the most significant body in this country.

Cruz: Pat Leahy in 2017, quote, “The Judiciary Committee once stood against a court packing scheme that would have eroded judicial independence.” That was a proud moment. Senator Blumenthal, much the same. Senator Durbin in 2018, quote, “75 years ago we went through this, and I think the Congress was correct in stopping this popular president named Franklin Roosevelt from that idea.” Justice Ginsburg in 2019, quote, “If anything would make the court look partisan, it would be that. One side saying, ‘We’re in power. We’re going to enlarge the number of justices,’” not fill vacancies, “‘enlarge the number of judges so we would have more people who would vote the way we want to.’ Nine seems to be a good number. It has been that way for a long time. I think it was a bad idea when President Franklin Roosevelt to pack the court.” That’s the next fight we’re facing if Democrats win the majority. I hope that we don’t see that come to pass.

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