Becoming Justice Barrett

Ted Cruz. I'm Michael Knowles, Senator. It occurs to me as we sit here about to discuss the Supreme Court Confirmation hearings. We've got impeachment, We've had the COVID quarantines, we have the Supreme Court confirmation hearies. With the possible exception of murder Hornets. You have been at the center of just about every major story of twenty twenty and maybe I don't know, maybe you've been involved in murder

Hornets too. I don't know. Well, I will say this this that podcast feels reminiscent of the beginnings of Verdict and and and spending all day then in the impeachment trial, now in the Judge Barrett confirmation hearings and then recording this late in the evening, although it's only what is it, nine twenty nine thirty as compared to midnight or one in the morning, So we're we're we're more humane than that than we started. But it is, uh, look, it's

it's it's. Part of what this podcast is all about is to is to try to bring folks inside the battles real time as they're playing out in Washington, and that's what we're doing right now. I think in this case to Senator maybe some people were watching all of the impeachment hearings. I don't think anybody has been sitting through all twelve hours of the Supreme Court confirmation hearings, And frankly, I think a lot of people, and I include myself in this to some degree, don't even really

know how this whole process plays out. So I want to get into the specific moments and how you're shaping the process. But I'd like to begin just by zooming out and asking what was today, What is the timeline going to look like? And is this judge going to be confirmed to the Supreme Court. So I think today was a very consequential day today we now know Judge Barrett is going to be Justice Barrett. Today was the first big day of questioning. So the way this is

play played out. The President made his announcement a couple of weeks ago of Judge Barrett as the nominee. We had a couple of weeks where she filled out there's a whole elaborate questionnaire that a Supreme Court nominee has to fill out to the Senate that that requires them to turn over any writings they've had, a speeches they've given. They're all these elaborate questions that any judicial nominee has to submit and that takes a little bit of time

to compile. And then the hearing started. This week started yesterday, so but yesterday was just opening statements. So everyone had a ten minute opening statement and Judge Barrett had to sit there and listen to each of us talk for ten minutes. And then she gave her opening statement and it was a very brief. It was introductory, and it was introducing her family. She had her kids there, so she introduced her husband and her kids she had. She's

got six brothers and sisters, so she introduced them. That was yesterday, So today is when the questioning started and the way it worked today as every senator got thirty minutes of questioning, so it alternated Democrat Republican, Democrat Republican thirty minutes to each and so Judge Barrett is there just answering the questions. And the reason I say today as when we know that she's going to be confirmed, is because the Democrats couldn't lay a glove on her.

I mean they that they really had. There was no moment in the hearing where they not even scored blood, where they even put a nick in her. I think she was a fabulous witness. She was calm, she was cool, she was collected. She had and has I think a very scholarly, a very judicial demeanor. She was unflappable, and there were some moments where she could have been forgiven

for flapping and she didn't. But I think every bit as revealing as the fact that they didn't lay a glove on her is for a lot of them, they didn't even really try. What I read today as is the Democrats have basically given up that they know they don't have the votes, they know they're not going to stop her, they don't have any substantive issue, and so

they're going through the motions. But but it actually felt today like like more than a few of the Democratic senators were basically phoning it in like they had to, they had to fill their thirty minutes, but they didn't really believe they were going to get anywhere in terms

of stopping the nomination. I know, early on when Judge Barrett was announced in the nominee, you heard what I felt were very ugly and politically ill advised attacks on her family and on her religion, and the attacks didn't play very well. And fortunately we're not really seeing any more of those. I remember Dick Durban, now the number two Democrat in the Senate. He came out and more or less said that all Democrats could do was slow this thing down a little bit, but ultimately they couldn't

do anything to stop Barrett on the court. So if they're not going to lob those attacks, and the attacks they're lobbing aren't working, what are they doing? What was the line of questioning that the Democrats were pursuing. So there was an iron needed Durban putting that message out because the last time Judge Barrett was up, when she was nominated at the Court of Appeals. Durban was one of the people who went after her for her faith, and he asked her then, this is three years ago,

if she was an Orthodox Catholic. Orthodox was the adjective he used. Now, I'm pretty sure that she's not a member of the Greek Orthodox or Russian Orthodox churches, So I'm not Look, you're Catholic. What is an Orthodox Catholic other than beyond I guess from a Senate Democrats perspective, someone who actually believes the stuff. I think that's what he meant by it. But I think you've hit the nail on the head. She's not Eastern Orthodox. She doesn't

have one of those long beards. She is Catholic, and she's Orthodox, meaning she believes what the Catholic Church believes. This 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. So I can understand Senator Durban's confusion. He probably doesn't know very

many Orthodox Catholics. But as you say, I recall that attack did not play very well for Senator Durban three years ago, and I think he probably wanted to caution his colleagues now well. Feinstein infamously said, with regarded Judge Barrett three years ago, the dogma lives loudly in this one. And it was a moment of really I think contempt and religious bigotry that that backfired, as I'm glad it did.

I'm glad the reaction was so strong. So somebody sent out the marching orders to the Democrats, don't go down the road of the attacks on faith again and listen. For whatever reason, the Democrats, when they get talking points, they stick to them. And so it was order, you're not allowed to attacker on this, and they all stayed

away from it. So that's good. I 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, and it's also on constitutional I mean the Constitution explicitly, the text of the Constitution prohibits a religious test for

anyone serving in public office. Given that, what's interesting is they didn't even really decide to go after her record, to go after anything. The principal talking points that the Democrats are emphasizing is attacking the President. That they're just using this to say Trump, Trump bad, Orange Man bad,

and it's all about Obamacare. It's all about Obamacare. And their argument is that if Judge Verridis confirm, the Supreme Court will strike down Obamacare, and a gazillion people will be denied healthcare and people with pre existing conditions will be denied healthcare. And they basically are making it's You've got to be impressed at the discipline that virtually every Democrat says that almost word for word. I mean, they read from their talking points, and the arguments they're making

are not judicial arguments. They're not actually arguments. It's not the Supreme Courts to decide them. Listen, every Senator agrees we're going to protect pre existing conditions. Every Republican agrees with that, Every Democrat agrees with that. Now their disagreements on how you protect pre existing conditions. And I think Obamacare has been a train wreck. It's driven premiums through the roof, and it's very unpopular, but that is a

policy question for Congress to debate. That's not the Court is not going to decide what's the best system of healthcare. And so one of the main general election arguments the Democrats are mounting is this pre existing conditions attack. And it was striking a number of the Democrats. They all but ignored Judge Barrett. They just had their talking points Trump pat you and wants everyone to die and it, and you know, Judge Barrett just kind of sat there

and smiled. Well, I mean, you know, that was not directed to her and her fitness and record to serve on the court, I thought, But I thought it was interesting how halfhearted they were and going after her. They

barely tried well on the healthcare point. I was speaking to a fairly prominent Democrat operative during the mid terms a couple of years ago, and this operative told me that basically the only winning issue for Democrats was healthcare and not Obamacare, by the way, just sort of broad healthcare reform, healthcare protections, right, because the promises on the campaign trailer always We're going to give you a lot of free stuff, and it's going to make everybody healthier

and better, So they keep hammering that home. It's obviously much less contentious than say abortion or going after somebody's faith or something to that effect. Well, you know, in twenty eighteen, Chuck Schumer dropped several million dollars in attack ads against me in the closing week of my reelection campaign, and it was all pre existing conditions. It was ted once to takeaway coverage preexisting conditions. Now we immediately pivoted and hit him back and said, no, we're going to

protect preexisting conditions. And you've driven costs through the roof and people can't afford health here and it. I mean, we have always been a very data driven operation, and the polling showed that when we counterpunched, it completely neutralized the attack. But they put hundreds of millions of dollars behind that attack nationally in twenty eighteen, and they're doing

it again this cycle. Well, I want to get into those hundreds of millions of dollars because I agree with you watching I didn't watch twelve hours of it today, but watching what I did, it did seem halfhearted. Senator Feinstein went for a row versus Wade that kind of flopped. I felt Kamala Harris flopped. I just felt so many

of the attacks were weak. The only one that caught my interest was from your colleague, the Democrat Sheldon Whitehouse, who launched an attack at the funding of the conservative judicial movement, basically saying that dark money was behind the selection of Judge Barrett. And then he didn't quite explain what that meant. But the conclusion, of course was Barrett is an illegitimate nominee and there's no way we should

confirm her. Where is all that dark money? Senator? So I it was a fairly extraordinary So Sheldon talked for thirty minutes. He didn't ask Judge Barrett a single question, So she just sat there while he put on and he had these little charts he had and it was interesting. Ben Sass later in the afternoon referred to it as a beautiful mind presentation. But there's a reason for his presentation. So white House has been pushing this for a long time.

There's a concerted effort to delegitimize the court, and 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, and it's illegitimate. And this is connected to their whole effort to pack the court. This is all Sheldon's objective is to delegitimize the Supreme Court. And my questioning was immediately after his. And that's usually

the case in terms of the seniority. I normally go between white House and Klobuchar, and so often I'm often have a chance to respond to white House, and then Klobuchar is discovered. She gets lots of likes when she likes says something nasty about me, which is Amy and I actually get along quite well, but it makes it makes lefties really happy when she attacks me. So she often will chime, you're going to totally kill her credibility. Now that you say that you and she get along

very well. There go all the Facebook likes. So white House I took the chance to really lay into his premise as as you know, in the world of campaign finance reforms. So and this is something Sheldon says all the time, but Democrats say all the time is big money is behind the Republicans. It 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.

So if you look at, for example, in twenty sixteen, of the top twenty superpack donors in America, do you know how many gave almost exclusively to Democrats. Of the top twenty fourteen gave almost exclusively to Democrats, three gave about evenly Democrat and Republican, and only two of the top twenty gave primarily to Republicans. It's overwhelmingly and by the way, the difference in dollars and that cycle twenty sixteen cycle h Republicans had one hundred and eighty nine

million dollars spent supporting their elections. Democrats had four hundred and twenty two million dollars. And it was you know, and and and you know, Sheldon was bellowing, you know, these mysterious dark money donors, they want something for it, they want something. You don't give that kind of money for nothing. I mean, he was, he was, I was really tempted to jump in and be you know, Sheldon, that they're decaffeinated brands of the market that are just

as tasty just to relax their son. But look, if you look at this cycle, the fortune five hundred overwhelmingly supporting Joe Biden over Donald Trump. Wall Street overwhelmingly supporting Joe Biden over Trump. The entire narrative that it's big corporate interests supporting Republicans. It's just not right. What you've pointed to here, Senator, I think is key because I couldn't.

I couldn't make sense of it. I 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? You know, he had step one raise a lot of money. Step two, I don't know. Step three you have a judge on the court, but then often the judges disappoint the people who want to appoint them. Anyway, I just couldn't get what the point was. But what you're saying is there's no point about the money.

It's simply part of a broader performance to delegitimize the court. Yes, and that, and it's also to say the court has bought and paid for. But it's also to justify a democratic power grab and a regulation of speech. And so I used my questioning to talk quite a bit about what the Democrats want to see from left wing Supreme Court justices. As 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? A

New York Times bestseller, I believe, is that correct? It is, and it was the number one bestseller in the country on Amazon, So I mean it really A lot of people have been buying it. A lot of folks who listened to Verdict, thank you for that. I appreciate that there's a chapter in the book on Citizens United. And 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. They know Democrats hate it, and so I explain Citizens United was at its heart about whether we can criticize politicians, and in particular, so what happened. Citizens United is a small nonprofit organization based in DC. They made a movie that was critical of Hillary Clinton, and the Obama Justice Department went after them and wanted to be able to find them for daring to criticize Hillary Clinton in a movie.

And the case went all the way to the Supreme Court, and there was one exchange at the oral argument Michael that was really chilling. Where Justice sam Alito asked the lawyer for the Obama Justice Department, said, under your theory of the case, can the government ban books? And the Obama Justice Department lawyer said, yes, yes, the government can ban books if they're critical of a politician. And ultimately

the court struck that down five to four. But there were four justices ready to say that the government can ban movies and the government can ban books. And it's what I tried to do in the book, want to vote away, as every chapter emphasizes, Look, we had four votes to say the government, never mind what the First Amendment says, never mind free speech. The government has the power to ban movies or books if they don't like

the content of them. That's really terrified. And that's what white House and the other Democrats were trying to build the predicate for. They want to be in charge, frankly, of silencing you, of silencing me, of silencing anyone who says something they disagree with. Before we get to mailbag,

I do want to get to a mailbag question. I do have to ask this though, Senator, I know we had all been joking on the right that the Democrats were going to pull a Cavanaugh on Judge Barrett that they were going to accuse her of sexual harassment or something like that, and then tell me I'm crazy, tell me I misheard it while I was watching today. Did Senator Mazie Harrono of Hawaii actually ask Judge Barrett if she had sexually harassed anybody since you became a legal adult.

Have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment assault of a sexual nature? No, Senator Horono. Have you ever faced discipline or entered into a settlement related to this kind of conduct? No, Senator. So she did, and I will admit it was one

of the most incongruous moments. Like, 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, I will say in Mazie Horono's defense, and I don't often come to Mazie's defense. She consistently asked that question of every nominee before her, and she's done that since

she got elected. And so it's if you're nominated to 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. And I actually respect that she asked that. I mean, I think it certainly caused a lot of nominees to think twice about, Okay, how are they going to answer it? And look, I think it's a reasonable thing for the Senate to ask, and I think it's fine that she applies it even

handedly and consistently. I think it's actually a good thing that she applies it to everyone. Well, a very fine kind word to say about Senator her own. And I think we're all very pleased that Judge Barrett was able to answer that very quickly. They moved on before we go, we've only got a couple of minutes left. I do want to get to a couple of mail bag questions. This first one is from I promise you this is not my account. I think it's a listener or verdict.

The account is verdict Sir Noel's commander of the British Empire, not me. What would happen if the Senate majority just refused to fill a Supreme Court vacancy for an extended period of time, so not a few months of a campaign, but let's say two years or three years, look, the seat would remain vacant. You know, it does seem we are moving in that direction where I am not sure we will see a Senate filling Supreme Court seats for

the opposite parties president, and it's just judicial nominees. If, for example, we started next year with let's suppose Trump won and Schumer took the Senate, I think the odds are pretty high that they might not even fill any

Court of Appeals judge seats. At 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, because 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 although to be fair, Republicans have demonstrate did a lot more willingness to confirm Democratic nominees

than vice versa. I remember, I think it was Justice Kennedy, but as recently as Justice Kennedy was confirmed unanimously, Justice Ginsberg was confirmed overwhelmingly. Now it seems that all of these are the are the biggest battleground of all well looks and Soda Mayor and Kagan. So both of Obama's appointees, there were a number of Republicans that voted to confirm them. So there were many more Republicans I forget. I wasn't there for Sodomayor and Kagan, but so Lindsay Graham voted

to confirm both of them. You remember when he got Lindsay got so mad at the Kavanaugh thing, and he kind of blew up and had sort of the viral moment. In fact, I told you when Lindsay did that, my mom texted me and said, Okay, I love Lindsay Graham. Now that was in the Kavanaugh hearing it And by the way, my mom is quite conservative, and I think it's fair to say she did not previously lovely. And

so the passion with which he unloaded. But one of the things he said there is he said he voted to confirm both Sodamar and Kagan, and the Democrats had none of that reciprocity for Trump's nominees. One last question before we go. I know this is on a lot of people's minds because they keep asking me about it. This is from coal. Coal is a poly sized student in Wisconsin. What is the difference between originalism and textualism. We hear these terms use as if they are synonyms,

but they're not synonyms, right, So they're not. And the simplest difference is originalism refers to the Constitution and textualism refers to statutes, which are federal laws passed by Congress. But it's not the Constitution. So let's unpack that a little bit. But that's the simplest way to think about it.

So originalism is, how do you go about understanding the lang the terms of the Constitution should an originalism is you should understand the terms based on the original public meaning, not what the framers were thinking in their heads, not their subject the intentions correct. So let's take for example, the Second Amendment, the right to keep in bear arms. The operative language of the Second Amendment is the right of the people to keep in bear arms shall not

be infringed. And 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, so in seventeen ninety one.

What that and the right of the people, It turns out as a term of art, it's used elsewhere in the Bill of Rights, it's used the right of the people peaceably to assemble, so that it's clear an individual right there. It's also you. That's in the First Amendment, the Fourth Amendment, the right of the people to be secure from unreasonable searches and seizures. So 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. And what keeping bare arms means not what James Madison was thinking, but what the American people, when when it

was ratified, understood it to be. That's originalism. Textualism is how you interpret a statute, a federal law, and the principle is it's actually it has similarities, and that it is again the plain, plain meaning of the language based on the public what was understood, what a reasonably informed

observer what understood the language to be. Now there's some potential tension between the two and actually Some of the very last questioning today was from Senator John Kenny or Kennedy, a Republican, who got into some of the tension on it. And it's interesting, you know, Kennedy's a very smart guy. He kind of plays sort of like a Matlock country lawyer, but he's he's got some real great gray matter. And

I think he was enjoying pushing Judge Barrett. He was having he was he was like a pig and slop. He was having so much fun kind of just pushing her on this. There is some arguable tension in that textualism avoids relying on what's called legislative history. And to understand that some of it is you have to go

back to how courts you used to interpret statutes. If you go back to the nineteen sixties the nineteen seventies, there were decisions that would start with they'd basically ignore the language of the law, they'd ignore the text of the statue, and they'd say, well, here was the legislative intent, here's what Senator so and so said on the floor he wanted to do, so that's what the statutes trying to do, or here's what this committee report said. They

were trying to do. By 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. So it was a particular way of sort of hiding something in there to influence a case that's not the law of the United States. And so the leading proponent of textualism as a means of interpreting federal statues was

Justice Scalia. And when he started really the nineteen eighties, started in the seventies, but really the nineteen eighties, and went onto the Court of Appeals in the nineteen nineties and two thousands on the Supreme Court, he refused to look at legislative history and he said it's illegitimate, it's not the law. I'm not going to look at it. A majority of the Supreme Court doesn't agree with that methodology. But Scalia almost single handedly changed how courts look at statutes.

Now everyone starts with a text now, I mean, it's really an amazing If you grab any statutory interpretation case from the sixties compared to today, it's night and day. Where even the most lefty judges start with the text. They might disregard it, but they at least the analysis begins there, and so that and I think that's a much fairer and more predictable way to decide cases. One of the things you want in a nation of laws

is predictable outcomes. And you know, if you're a private citizens you're trying to determine what's the law say, the easiest way to do it is go look at the text of the law and if it's clear that, if you know that's going to be the answer, you can behave accordingly. If 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.

And so that's that's textualism in our remaining few seconds here, speaking of predictable outcomes, do you have any predictions for what we'll go on during the hearings tomorrow or is it anybody's guess? So tomorrow we're gonna have another round to hear of questions. It'll be shorter tomorrow, it's only twenty minutes so instead of thirty minute round. So the day presumably will end several hours earlier, which will be good. I think the Dems have run out of steam. I

think they've lost lost a lot of their energy. I will say, by the way, Michael, I've got to credit you. One of the better moments and in the hearing, was when my colleague John Cornan asked Judge Barrett said, you know, what notes do you have in front of you? And she hadn't. She didn't have any binder, she had nothing she was reading from, and she just held up a blank notepad. And I will say, I'm impressed, Michael, that that that she held up what was apparently a page

from your book. It was entirely blank, and that's what she was relying on. And let me sk you something, Michael, how do I write a book on the US friggin Supreme Court and she reads from your book and not my book at the hearing. You know, a senator, you've shared so much of your wisdom with me at some point, I'm more than happy to brief you on my book. I'm really honored you've you've played, i think a more direct role in the history of this Supreme Court nomination

and confirmation process. I am pleased that I could play a modest role as a judge. Barrett raised what was clearly a page from my blank book. We will look forward to tomorrow. By the way out a reprint. You might want that image on the cover of your book now for holding up the blank page. At a minimum, that's got to be like your online ad for the book.

I know, I wonder does it count as a blurb if she didn't say anything out of Perhaps perhaps we'll add it to the next edition, Senator Best of Black tomorrow at the hearings. Until then, I'm Michael Knowles. This is Verdict with Ted Cruz. This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom and Security Pack, a political action committee dedicated to supporting

conservative causes, organizations, and candidates across the country. In twenty twenty two, Jobs Freedom and Security Pack plans to donate to conservative candidates running for Congress and help the Republican Party across the nation.