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2 views on the judicial philosophy of SCOTUS nominee Amy Coney Barrett

Nominating a judge to the U.S. Supreme Court is one of the most important decisions a president makes. Who is President Trump’s newest pick, Amy Coney Barrett? John Yang reports and talks to John Adams, who clerked for Judge Barrett on the federal appeals court in Chicago, and Victoria Nourse, a Georgetown Law School professor who was Joe Biden’s chief counsel when he was vice president.

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  • Judy Woodruff:

    It is one of the most important choices a president makes. And, in this critical moment, the stakes are high for the future of the U.S. Supreme Court.

    John Yang examines President Trump's nomination and how it comes with the election as a backdrop.

  • John Yang:

    Democratic vice presidential nominee Kamala Harris led her party's criticism of Supreme Court nominee Amy Coney Barrett today.

  • Sen. Kamala Harris, D-Calif.:

    If nothing else, the voters should be very clear about one thing. President Trump and his party and Judge Barrett will overturn the Affordable Care Act, and they won't stop there.

  • John Yang:

    Barrett, a Trump-nominated federal appeals court judge and former Notre Dame law professor, says her role model is the late Justice Antonin Scalia, a conservative icon.

  • Amy Coney Barrett:

    I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine too: A judge must apply the law as written.

  • John Yang:

    If confirmed, Barrett would succeed the late liberal icon Justice Ruth Bader Ginsburg, perhaps the greatest ideological shift since 1991, when Clarence Thomas replaced Thurgood Marshall. Liberals lamented the potential change.

  • Olivia Risen:

    As someone of color, as a female, I hope this doesn't get through, because I'd really like to see some real justice and someone to uphold RBG's legacy.

  • John Yang:

    Among her strong supporters are opponents of abortion rights.

  • Emily Harrison:

    It is definitely a change from having a liberal in the Supreme Court to having a more conservative Catholic who is able to speak out about our beliefs in the Supreme Court.

  • John Yang:

    When the Senate confirmed Barrett for the appeals court in 2017, she said the court's Roe v. Wade decision establishing abortion rights was settled precedent, even though she has said it was wrongly decided.

    On the appeals court, she has appeared sympathetic to state laws restricting access to abortion.

    If she joins the court by early November, one of the first cases Barrett would hear would be the latest challenge to the Affordable Care Act. As a law professor, Barrett wrote in a 2017 law review article that Chief Justice John Roberts' 5-4 opinion upholding the law pushed the act beyond its plausible meaning.

    Health care has been at the center of Democratic presidential nominee Joe Biden's opposition to Barrett.

    Democrats hope to steer clear of the kind of questions about Barrett's religious faith that came up in her appeals court confirmation hearing, and led some social conservatives to brand them as anti-Catholic.

  • Sen. Dianne Feinstein, D-Calif.:

    When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that's of concern.

  • John Yang:

    Judiciary Committee Chairman Lindsey Graham has set Supreme Court confirmation hearings to begin in just two weeks.

    So, who is Amy Coney Barrett and what does her record tell us about what she might be like on the high court?

    John Adams was a clerk for Judge Barrett on the federal appeals court in 2017 to 2018. He's now in private practice in Chicago in Madison, Wisconsin. And Victoria Nourse is a Georgetown law professor. She was chief counsel to Joe Biden when he was vice president.

    Welcome to you both.

    John, let me start with you.

    Over the next couple of weeks, we're going to be hearing a lot about Judge Barrett's judicial philosophy, hear her legal writings and academic writings dissected.

    But you can tell us something that isn't going to come through that. What is she like as a person? What was she like as a boss when you clerked for her?

  • John Adams:

    Professor Barrett, when I first met her, and then Judge Barrett, was an amazing boss.

    It has been downhill ever since I'm not able to spend time with her on a day-to-day basis. She is unfailingly kind. She is courageous. And she is fair.

    And she is also someone with an unrivaled sense of humanity, humility, and humor, given all the tremendous responsibilities and accomplishments she possesses.

    She is a principled jurist, who will also put the rule of law before any personal preference or public pressure that she may receive.

  • John Yang:

    On Saturday night, when she said that Justice Scalia's judicial philosophy is her judicial philosophy, explain that. And how does it show itself when she approaches a case?

  • John Adams:

    Well, in two facets, she has explained the impact that Justice Scalia has had on her.

    She has professed she is an originalist. And originalists believe that the meaning of the law is fixed at the time it is ratified, and the meaning of the law, the original meaning, the ordinary meaning of the law, is what controls, if it's discernible.

    And she's also a textualist. She believes that she's confined by the words of the statute that's duly enacted by our legislature.

  • John Yang:

    Professor Nourse, you have said that you have — you have challenged or questioned the idea of textual interpretation in a justice on the Supreme Court.

    What's your objections, or what's your problem with it?

  • Victoria Nourse:

    Well, it sounds really banal and obvious that you follow the rule of law.

    But it is kind of, as Justice Scalia would say, a wolf in sheep's clothing. Justice Scalia read a book call "Reading Law." And I wrote a book called "Misreading Law," because what happens is not these fine statements that John has said.

    And Judge Barrett — I have known her and debated her as a law professor — is a fine woman. But I have to tell you, the philosophy is not so fine and it's not so nice for the American people.

    And why? Look at the health care cases. You don't have to believe me. One of them went up there for what I have argued is a single word that was wrong in the statute. That is an anti-democratic way of looking at statutes. And she's got answers that you will hear at the hearing.

    But I fundamentally believe, if you look at what Justice Scalia has done — and she has adopted his views on reading law — you will see that he reads selectively.

  • John Yang:

    John, I want to ask you, I mean, obviously, to respond to what Professor Nourse has said, but also get your take on how you think, if Judge Barrett is confirmed, how Justice Barrett would change the court, change the direction of the court, taking this big ideological shift from Justice Ginsburg to potential Justice Barrett.

  • John Adams:

    Well, John, let me begin by responding to Professor Nourse.

    Textualism, as Justice Kagan has famously said, we are all textualists now. Textualism allows judges to follow the words of the statute duly enacted by the legislature, instead of searching for unknown purposes that could have been behind the legislature's minds or intents.

    And, in my view, textualism supports consistency and predictability in the law. It also prevents judges from being legislatures from the bench. And it also prevents judges from imposing their own views or their own public policy preferences into the law, because they're constrained by the words of the statute. They can't go beyond.

    And Professor Nourse does bring up the point that there are times when a statute can be ambiguous. But, of course, there are canons of construction that can guide a judge to identifying the ordinary meaning of the statute, and then neutrally applying the statute to the facts at hand.

    I think what you would see of a Justice Barrett is the same thing that you would see — that we have seen of a Judge Barrett on the Court of Appeals in what she has participated in, over 600 decisions.

    She approaches every case with an open mind and a foundational commitment that either side might be right, and it's the law and the facts that guide the decision.

  • John Yang:

    Professor Nourse, let me ask you the same question about, where do you think this shift on the court, this new justice, if she is confirmed, how would this change the direction and ideology of the court?

  • Victoria Nourse:

    Well, I have to say, I think that this is going to be the biggest shift since the early 1930s, before FDR attempted to pack the court, which I believe was unconstitutional, by the way. I don't support that.

    But it's tremendous, because you will have six votes. Justice Scalia's philosophy about reading text is not traditional. It's not Blackstonian. It doesn't go back to 1787. And it's been very hostile to laws, and that because it would have — if she voted as Justice Scalia did in the first health care case, as she said, we would not have Obamacare.

    There was a second case. Again, Justice Scalia rewrote that one.

    So, what we are going to see is a continued hostility toward the Congress. And this court also loves the presidency. They're very interested in what Justice Scalia misquoted the Constitution, in my view, when he said, the president has — quote — "all executive power."

    That's not what the Constitution says.

    So, I think it's a momentous appointment. I — unfortunately, I think it's going to be mired in a terrible politics. And I hope people will focus, as John and I have, on these theories and what they really mean, not just the sayings. They all — all lawyers are happy to give you great words about the rule of law and all of that.

    Look at what people have done with the philosophy, not what they say about it.

  • John Yang:

    Because you — you talk about this momentous, this big moment, short time before the election, a fundamental shift in the balance of the court.

    You worked for Joe Biden, not only in the White House, but on the Hill, when he was on the Judiciary Committee.

    What — we're going to hear a lot in these hearings. What is fair? What's a fair line of inquiry and what do you think is out of bounds.

  • Victoria Nourse:

    I certainly think her children are out of bounds. I think her religious views are out of bounds.

    When I — I was actually nominated to her court, the Seventh Circuit. I never got a hearing. But my kids were threatened.

    I think people have to be very careful now. People are so worked up because of the pandemic. And there's just way too much enmity in this.

    And Biden was one who taught me that I can really enjoy Amy Barrett's, Judge Barrett's company, and we can have a great debate, but I can say, I think her views are dangerous.

    And so I hope that we work hard to focus on the views, stay away from the kids.

  • John Yang:

    John, you know the judge.

    She has been placed in this situation not of her own making, the environment in which her nomination is going to be considered. How do you think she's going to be able to handle it?

  • John Adams:

    John, I think she's going to be able to handle it very well.

    I know Judge Barrett. She is someone with amazing fortitude and poise and principle. And she will carry those same attributes as she goes through this very difficult process.

    Professor Nourse, I appreciate you saying what's out of bounds. I agree with you.

    But I respectfully disagree with you that her views are dangerous. She is someone who neutrally applies the law. And you can see that her neutral principles have been respected by the unanimous, bipartisan support that she received as a law professor from the Notre Dame law faculty, as well as her co-clerks.

    When she clerked on the United States Supreme Court for Justice Scalia, every single one of her co-clerks for all the justices supported her during her confirmation to the Seventh Circuit. And it's that type of neutral application of law that will make her a great justice.

  • John Yang:

    John Adams, Victoria Nourse, we're going to have to leave it there. But I think we have gotten a sense of what we're likely to be going through for the next couple of weeks.

    Thank you very much.

  • Victoria Nourse:

    Thank you.

  • John Adams:

    Thank you very much.

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