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How these 2 legal scholars see Amy Coney Barrett’s testimony

Questions of judicial philosophy and Supreme Court precedent arose again on Day 3 of Amy Coney Barrett's confirmation hearing before the Senate Judiciary Committee. Judy Woodruff talks to Georgetown University’s Victoria Nourse, who was chief counsel to Vice President Joe Biden in 2015 and 2016, and the University of Virginia's Saikrishna Prakash, a former law clerk for Justice Clarence Thomas.

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  • Judy Woodruff:

    And we turn now to the analysis of Victoria Nourse of Georgetown University. She was chief counsel to Vice President Joe Biden and counsel to the Senate Judiciary Committee when he was its chairman. And Saikrishna Prakash of the University of Virginia, he previously clerked for Justice Clarence Thomas. He will testify tomorrow before the Judiciary Committee as a witness in support of Barrett's confirmation.

    Hello again to both of you.

    And I'm going to start with you, Victoria Nourse.

    What did we learn today from Judge Barrett that tells us something about how she is going to change the Supreme Court, if she's confirmed?

  • Victoria Nourse:

    Well, I think we learned that she's capable of evading lots of questions.

    But I think that that also suggests something important about how she might rule. So she was asked several times to comment on cases. And she can't do that. But the number of things that she refused to discuss, such as, did the president have to leave his office peaceably, were often quite extreme, in my view.

    Other justices have answered some of these questions, for example. So, for example, Griswold vs. Connecticut, a case that's about whether you — a state can criminalize contraception, Chief Justice Roberts answered that question. She refused to do.

    So, in the silences, we can read in a few things, when we add in her judicial philosophy. And I'm not the only one who thinks that originalism is a recipe for creating what she called havoc.

    So, with that philosophy, we know she's very tied to it, very tied to Justice Scalia, and he would have ruled against the ACA. Some originalists don't think Medicare is constitutional, as Senator Feinstein asked her.

    It — some people think that the administrative state, all of the agencies, the Nuclear Regulatory Agency, might be unconstitutional. It's a major shift. And this is why folks who study the court have been writing that this could be a shift that is as radical as moving us back to the 1930s.

    This — you're going to see fireworks in this court, in my opinion. And we know that from this philosophy that's called both originalism for the Constitution and textualism for statutes.

  • Judy Woodruff:

    Professor Sai Prakash, were there questions that she could have answered that she just bent over backwards and didn't answer?

  • Saikrishna Prakash:

    I think we have mentioned some this afternoon,.

    I think — I think, in general, she was very cautious and didn't want to say anything that would make a headline for her, particularly anything that would be contrary to what the president had said earlier about her nomination or about his preferences.

    So she was never going to say, I'm not going to accommodate the preferences of the president. But what she did say repeatedly is, I'm not beholden to anyone and I didn't make any promises.

    And she wasn't going to make promises to the senators who were pushing her from the left, and she wasn't going to make promises to the senators pushing her from the right. And she wasn't going to make promises for the president either.

  • Judy Woodruff:

    And what about Professor Nourse's point about her philosophy of originalism and how that could lead to some very dramatic changes or decisions coming from this court?

  • Saikrishna Prakash:

    Sure.

    I think — I think people have neglected to read one of her — I think give sufficient attention to one of her articles. She says in several of her articles that judges don't have any obligation to, sua sponte, on their own accord, reconsider precedents, and, for the most part, they have to respond to the arguments made by the litigants.

    And I think that's how she will approach these cases. To the extent that the court is revisiting precedents, it's really just responding to the environment around it. There is no justice and there is no senator who is — who believes that all precedents are sacrosanct and there shouldn't be any changes.

  • Judy Woodruff:

    Professor Nourse, what about that?

  • Victoria Nourse:

    Oh, one of the most famous law review articles was written by a former colleague, Marc Galanter, that is entitled why the haves always win in the court.

    And why they win is because they have the money for the lawyers who bring repeat claims. So, corporations go to court, and they win more than criminal defendants. They tend to get rulings that are in their favor.

    And the court has historically been quite conservative. The Warren court was really an exception to this, in part because of the influence of moneyed lawyers.

    So, I worry about that fact. Both Senator Graham and Senator Whitehouse noted that there's a whole shadow operation at the court, that it's now coming under scrutiny, with people filing amicus briefs, which are friend of the court briefs, to support conservative positions, also liberal positions as well, but something we don't know where the money is coming from, basically.

    So, I am worried that we just don't know what's going on behind the scenes. And I'm also worried that — there's no surprise that The Federalist Society is funded by people, and the people who tend to go there are in big law firms, and they're the haves, not the have-nots, not everyone, I suppose.

    But — so I worry that there will be a significant shift toward corporate interests. We heard that she's ruled 80 percent of her cases in favor of corporations, as opposed to the working class and the average Joe.

  • Judy Woodruff:

    Sai Prakash, why shouldn't that be a concern for those who feel strongly about these issues, that feel strongly that the court shouldn't tilt in that direction?

  • Saikrishna Prakash:

    Victoria, I think, has put her finger on the point, which is that every — in every case, there are sometimes dozens of briefs. And there — both sides are well-funded.

    It's not the case that there are conservative briefs and there are liberal briefs. Victoria herself admitted as much.

    And so the question is, should we care about why people are filing the briefs or who's filing them? I'm not opposed to finding out more about that. But I think it's a mistake to think that conservatives have a — have a bigger voice in these amicus briefs than liberals.

    They're — when I clerked 25 years ago, there were dozens of briefs in some of the most important cases, and many of them, if not most of them, were from progressive groups.

    So, progressive groups, as well, as more conservative groups, are funded because people care about those causes. It's not all about moneyed interests. There's no money to interest for — I think, for the ACLU people who have passionate beliefs about civil rights. And that's going to be true for libertarian causes, at least some of them, as well.

  • Judy Woodruff:

    But just to quickly get back to Professor Nourse's point, what makes you convinced that Judge Barrett is not captive to some of these very conservative ideas?

  • Saikrishna Prakash:

    Well, I believe she's a conservative. Is she a captive of them? I mean, I don't believe so.

    I mean, I — if the contention is that she's being — she's a marionette and she's a puppet of the Koch brothers, I have seen no evidence of that, and it's more of a conspiracy theory than anything else.

    I don't even think any of the senators has alleged as much. I think Senator Whitehouse and Professor Nourse are making an interesting point about the funding of these advocacy groups. It seemed like she — that the judge herself was unaware of this. I certainly don't know who's funding these briefs. I don't pay attention to who's — how the money gets to the lawyers who do the briefs.

    I just know that they're filed, and they make interesting arguments, sometimes good arguments, and sometimes bad arguments.

  • Judy Woodruff:

    Well, it's been an interesting few days. And we thank you both for being with us to watch these hearings.

    Professor Saikrishna Prakash, Professor Victoria Nourse, thank you both.

  • Victoria NourseE:

    Thank you, Judy.

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