October 14, 2020

Harris At Barrett Hearing: Illegitimate Process Causing Great Harm

Full Video of Harris’ Questioning

WASHINGTON, D.C. — U.S. Senator Kamala D. Harris (D-CA), a member of the Senate Judiciary Committee, on Wednesday questioned Judge Amy Coney Barrett, nominee to the Supreme Court of the United States. During the hearing, Harris asked Barrett if she agreed with Chief Justice John Roberts’ writing in Shelby County v. Holder, “Voting discrimination still exists; no one doubts that.” Judge Barrett did not answer the question. Harris also asked Barrett if she believes climate change is happening and a threat to the American people’s livelihood. Judge Barrett responded that she thinks climate change is a debatable and contentious issue.

Harris reiterated her disapproval of Senate Republicans’ rush to confirm a Supreme Court nominee in the midst of a deadly pandemic and historic economic crisis— all while the American people are casting votes. Harris concluded by reminding the committee of the important issues at stake with Judge Barrett’s nomination.

Key Harris-Barrett Exchange on Voting Rights:  

HARRIS: Judge Barrett, in Shelby County Chief Justice Roberts wrote and "voting and voting discrimination still exists. No one doubts that." And my question to you is do you agree with Justice Roberts statement?

BARRETT: Senator Harris, I want to just make sure that I understand that my understanding of what remains of the Voting Rights Act, what happened in Shelby County is consistent with what you're describing. The preclearance requirement, as I understand Shelby County remains in place and what the Supreme Court held unconstitutional was the coverage formula. So some states, which in 1965 had a history of discrimination had to get preclearance whenever they changed anything having to do with their voting procedures and other states didn't. And I think Shelby County said that Congress can still pass a new coverage formula now. Articulating the criteria for jurisdictions that are discriminating and requiring please preclearance.

HARRIS: Judge Barrett, my question, however, is do you agree with Chief Justice Roberts, who said voting discrimination still exist. No one doubts that." Do you agree with that statement?

BARRETT: Senator Harris, I will not comment on what any justice said or whether an opinion is right or wrong or endorse that proposition.

HARRIS: Well, I'm asking you, do you call it a proposition or a fact? Are you saying you do not agree with the fact? 

BARRETT: Senator, I'm not going to make a comment. I'm not going to say that I endorse either the majority or the dissent in the case of Shelby County.

HARRIS: But I just want to understand, are you saying that you will refuse to dispute a known fact or that you refuse to agree with a known fact?

BARRETT: Senator, I'm not exactly sure what you're getting at with asking me to endorse the fact or whether any particular practice constitutes voter discrimination. I'm very happy to say that I think racial discrimination still exists in the United States and I think we've seen evidence of that this summer. But as you engage-

HARRIS: Do you believe that voting discrimination exists in America in any form? 

BARRETT: Senator Harris, there have been cases we've talked in this hearing about the Wisconsin case that went up to the court involving voting, I think anything, any opinion, that I would express, and I don't mean to signal that I disagree with the statement, either what I mean to say is, I'm not going to express an opinion because these are very charged issues. They have been litigated in the courts, and so I will not engage on that question.

Key Harris-Barrett Exchange on Climate Change:

HARRIS: Do you accept that COVID-19 is infectious?

BARRETT: I think yes, I do accept that COVID-19 is infectious. That's something of which I feel like, you know, we could say you take judicial notice of it's an obvious fact. Yes. 

HARRIS: Do you accept that smoking causes cancer?

BARRETT: I'm not sure exactly where you're going with this. But you know-

HARRIS: It's just a question, the questions is what it is, you can answer it as you believe.

BARRETT: Senator Harris. Yes, every package of cigarettes warns that smoking causes cancer. 

HARRIS: And do you believe that climate change is happening and is threatening the air we breathe and the water we drink?

BARRETT: Senator. Again, I was wondering where you were going with that. You have asked me a series of questions like that are completely uncontroversial, like whether COVID-19 is infectious, whether smoking causes cancer, and then trying to analogize that to eliciting an opinion on me that is a very contentious matter of, opinion from me, that is on a very contentious matter of public debate. And I will not do that I will not express a view on a matter of public policy, especially one that is politically controversial, because that's inconsistent with the judicial role, as I have explained. 

HARRIS: Thank you Judge Barrett. And you've made your point clear that you believe that this is a debatable point.

A full transcript of Harris’ questioning is below:

HARRIS: Thank you Mr. Chairman. Judge Barrett, earlier today you describe the voting rights act as, "a triumph of the civil rights movement". But as you know, the Voting Rights Act was not an inevitable triumph. So I think it's important for us to acknowledge some of its history. This year, our nation has mourned the loss of a great American hero, Congressman John Lewis, he was one of our country's greatest leaders because he inspired us to fight for a more perfect union.

Every year, John Lewis would invite a bunch of us, members of Congress, faith leaders, others, to join him in Selma, Alabama, for a walk across the Edmund Pettus Bridge. And it was there that he would remind everyone of America's history, and the history of the fact that through generations, Black Americans were denied their constitutional right to vote. He also reminded us of the brutality that so many Americans faced when fighting for the voting rights of black people and all people.

And history reminds us that some states as a condition of voting, required black Americans to answer impossible questions like, take a look at that jar of jelly beans and if you're going to vote, you need to tell us how many jellybeans are in the jar.

There were questions and, folks in order for them to vote, they would have to tell the official how many bubbles are in a bar of soap, impossible questions. Obviously. Some states require black people who had been systemically and systematically denied access to equal educational opportunities to answer questions like: How often is the federal census taken? Or when Inauguration Day? And when one of these malicious questions was asked they were challenged as you can imagine, and many were struck down. But when that happened, those states and municipalities would just put up new restrictions and new obstacles for folks to vote. In other cases, black Americans were beaten when they tried to vote or register to vote, including Congressman Lewis and others who memorably shed blood on the Edmund Pettus Bridge. That's why under so much pressure, and the marching and the peaceful protest from civil rights activists that in 1965, Congress finally passed the Voting Rights Act to discriminatory voting practices. The Voting Rights Act, as you know, required states and counties who had history, this is very important, but history of denying black Americans and other minorities the right to vote to get approval from the federal government before they changed the voting laws. And for almost 50 years, the Voting Rights Act did what Congress intended, it allowed the federal government to monitor and guard against racial discrimination in states with a long history of voter suppression.

But as we all know, in 2013, in Shelby V. Holder, a county in Alabama sued to strike down section five of the Voting Rights Act that required Alabama to seek approval from the federal government before a state could change its voting laws. And of course, section five required that of a number of states that had a documented history of voter suppression.

Now, Judge Barrett, I know many of my colleagues have asked you about this case, but I think it's important we revisit it.

By five four vote the court gutted the Voting Rights Act and ended the requirement that states and localities with a history of discrimination get federal approval before changing their voting laws. But the majority of the Supreme Court justices fail to understand that the success in combating voter suppression directly was a function of our ability to enforce section five of the Voting Rights Act. So the success was due to the brilliance of section five of the Voting Rights Act, which gave us enforcement capabilities and monitoring capabilities. As has been mentioned, just two months after the code court gutted the voting rights North Carolina passed laws that made it so much more difficult for black Americans to vote that a federal court of appeals mentioned that it, "targeted African Americans with almost surgical precision."

Texas also has a long history of racial discrimination and voting, and was there for once also covered by the Voting Rights Act. But after section five was gutted in Shelby, Texas quickly returned to some of its discriminatory voting practices. Of the more than 1600 polling places closed after the court's decision at least 750 were in Texas. Texas often restricted interpretation assistance for English limited folders. And this year, the governor of Texas issued an order that limited the number of drop boxes for completed mail in ballots to just one per county. Before the order Harris County, Texas, which includes Houston had 11 ballot drop off locations in a county of over 4 million residents, and a county that covers about 2000 square miles.

Many people would say that it is just common sense that going from 11 drop boxes to what it did, which is to reduce it to one single Dropbox has made it more difficult for people to vote. The Supreme Court has long recognized that our right to vote is fundamental because it preserves and protects all of the rights. The right is more precious in our democracy. Any nominee to the Supreme Court must understand the effect and the fact of ongoing efforts to discriminate against black Americans, Latino Americans, Native Americans, students and other communities of color. Since the Supreme Court's decision in Shelby at least 23 states have passed restrictive voting laws and have attempted to also close polling places, stop early voting and take people's names off the voter rolls that should not have been removed. So Judge Barrett, in Shelby County Chief Justice Roberts wrote and "voting and voting discrimination still exists. No one doubts that." And my question to you is do you agree with Justice Roberts statement?

BARRETT: Senator Harris, I want to just make sure that I understand that my understanding of what remains of the Voting Rights Act, what happened in Shelby County is consistent with what you're describing. The preclearance requirement, as I understand Shelby County remains in place and what the Supreme Court held unconstitutional was the coverage formula. So some states, which in 1965 had a history of discrimination had to get preclearance whenever they changed anything having to do with their voting procedures and other states didn't. And I think Shelby County said that Congress can still pass a new coverage formula now. Articulating the criteria for jurisdictions that are discriminating and requiring please preclearance.

HARRIS: Judge Barrett, my question, however, is do you agree with Chief Justice Roberts, who said voting discrimination still exist. No one doubts that." Do you agree with that statement?

BARRETT: Senator Harris, I will not comment on what any justice said or whether an opinion is right or wrong or endorse that proposition.

HARRIS: Well, I'm asking you, do you call it a proposition or a fact? Are you saying you do not agree with the fact? 

BARRETT: Senator, I'm not going to make a comment. I'm not going to say that I endorse either the majority or the dissent in the case of Shelby County.

HARRIS: But I just want to understand, are you saying that you will refuse to dispute a known fact or that you refuse to agree with a known fact?

BARRETT: Senator, I'm not exactly sure what you're getting at with asking me to endorse the fact or whether any particular practice constitutes voter discrimination. I'm very happy to say that I think racial discrimination still exists in the United States and I think we've seen evidence of that this summer. But as you engage-

HARRIS: Do you believe that voting discrimination exists in America in any form? 

BARRETT: Senator Harris, there have been cases we've talked in this hearing about the Wisconsin case that went up to the court involving voting, I think anything, any opinion, that I would express, and I don't mean to signal that I disagree with the statement, either what I mean to say is, I'm not going to express an opinion because these are very charged issues. They have been litigated in the courts, and so I will not engage on that question.

HARRIS: During his confirmation hearing in 2005, Chief Justice Roberts was asked about the constitutionality of Section two, which I think you were referring to earlier, of the Voting Rights Act. He testified, "I have no basis for viewing section two as constitutionally suspect and I don't." Judge Barrett, do you agree that section two the Voting Rights Act is constitutional?

BARRETT: I think that Chief Justice Roberts statement, I have no basis for viewing it as constitutionally suspect would be the same as mine. I'm not aware of any constitutional law existing that would create a question about it.

HARRIS: Thank you. As Senator Hirono mentioned yesterday in the 2018 case before the Supreme Court, a group of workers were denied overtime pay and joined together to file a lawsuit against their employer. The corporation argued that workers didn't have a right to go to court as a group and could only raise disputes in arbitration individually. Unlike a court proceeding, arbitration is private, the processes hidden from the public and generally cannot be reviewed for fairness by a court. And in many cases, people are forced to agree to arbitration if they want to get the job.

In 2018, because of a forced arbitration clause, the workers could not go to a court to fight for overtime, and instead, were forced to fight for overtime pay behind closed doors in a private arbitration.

Justice Ginsburg and dissent noted that the workers faced, "a Hobson's choice except arbitration on their employers terms, or give up their jobs." She went on to explain that "employees must have the capacity to act collectively in order to match their employers clout and setting terms and conditions of employment." She urged the court to consider the, “extreme imbalance of power” in our nation's workplaces and avoid further undermining Congress's passage of labor laws to protect workers and place them on equal footing. 

Do you recognize Justice Ginsburg's point that there is an "extreme imbalance of power" between large corporations and individual workers? 

BARRETT: Senator Harris, I'm going to give you the same answer that I gave you with respect to the sentence that you've quoted me from Chief Justice Roberts opinion and Shelby County that I just- I'm not going to engage in critiquing or embracing portions of opinions, especially opinions that have been recently decided and are contentious from the court.

HARRIS: And you know you have been on the bench a short time, but I'm going to just point out that I do believe and commentators have noted pattern of ruling against workers and in favor of corporations. For example, in Burlaka v. Contact Transportation Services, you ruled against long haul truckers seeking overtime pay for additional work. In Wallace v. Grubhub Holdings, you ruled against delivery drivers seeking overtime pay, forcing them out of court and into private arbitration. In Harris v. YRC Worldwide, you ruled against four Black truck drivers who alleged their employer assigned them less-desirable routes when compared to their colleagues. In Smith v. Illinois Department of Transportation, you ruled against a Black worker who was called a racial slur by his supervisor. In fact, you go on, according to an independent analysis of your decisions judge, it appears you have sided with business interests over workers and consumers in about 85% of your business-related cases.

Moving on climate change, as many have mentioned is an existential threat and its effects are all around us in California, we've had five the six largest wildfires in the state's history. 31 people have been killed by wildfires in California since August alone, including at least two firefighters and a helicopter pilot.

Across the state over 9000 homes and structures have been burned and Californians have been forced to breathe dangerous smoke. All of this obviously during a pandemic which attacks the respiratory system. 

But rather than work to combat climate change, the Trump administration has rolled back environmental protections and removed the term climate change and government agency websites including the EPA. In 2007, in Massachusetts versus EPA, the Supreme Court decided by a five to four ruling that states could sue the EPA for its failure to combat climate change during the Bush administration. Justice Ginsburg was the crucial fifth in that case. Following that ruling, the EPA responded by unequivocally finding that climate change and its impacts are a danger to the public health and welfare. 

Justice Barrett, yesterday you said that, "you have read things about climate change, but you would not say you have firm views on it." In response to Senator Blumenthal today you said, "you are not competent to give an opinion on what causes global warming" and that you, "don't think your views on global warming or climate change are relevant to the work you do as a judge?"  I certainly do think your views are relevant. And I'm very concerned about your statements.

Since the Massachusetts v. EPA case, scientific consensus has grown even more and stronger, that climate change is real. And it's caused by manmade greenhouse gas pollution, and it poses significant threats to human life. 

If the case that comes before you would require you to consider scientific evidence, my question is, will you defer to scientists and those with expertise in the relevant issues before rendering a judgement? 

BARRETT: If a case comes before me involving environmental regulation, I will certainly apply all applicable law deferring when the law requires me to and as I'm sure you know, Senator Harris, the Administrative Procedure Act does require courts to defer to agency fact finding and to agency regulations when they're supported by substantial evidence. And so, yes, I would apply that law and defer when the law requires me to defer. 

HARRIS: And do you accept that COVID-19 is infectious?

BARRETT: I think yes, I do accept that COVID-19 is infectious. That's something of which I feel like, you know, we could say you take judicial notice of it's an obvious fact. Yes. 

HARRIS: Do you accept that smoking causes cancer?

BARRETT: I'm not sure exactly where you're going with this. But you know-

HARRIS: It's just a question, the questions is what it is, you can answer it as you believe.

BARRETT: Senator Harris. Yes, every package of cigarettes warns that smoking causes cancer. 

HARRIS: And do you believe that climate change is happening and is threatening the air we breathe and the water we drink?

BARRETT: Senator. Again, I was wondering where you were going with that. You have asked me a series of questions like that are completely uncontroversial, like whether COVID-19 is infectious, whether smoking causes cancer, and then trying to analogize that to eliciting an opinion on me that is a very contentious matter of, opinion from me, that is on a very contentious matter of public debate. And I will not do that I will not express a view on a matter of public policy, especially one that is politically controversial, because that's inconsistent with the judicial role, as I have explained. 

HARRIS: Thank you Judge Barrett. And you've made your point clear that you believe that this is a debatable point.

Mr. Chairman, these proceedings, I believe, lack legitimacy in the eyes of the people of our country. Americans are right now suffering from a deadly pandemic. And we are also suffering a historic economic crisis. The Senate should be working day and night to provide economic relief to families and not rushing a Supreme Court confirmation. We are also in the middle of an election, more than 12 million Americans have already voted. The American people want whoever wins this election to fill this seat. My Republican colleagues know that I believe. 

This hearing has done nothing to alleviate the concerns raised about why this nominee was chosen and why this is being rushed, when the American people deserve to be heard. So again, I would say let us not pretend that we don't know what consequences rushing into this confirmation will have the American people. There are countless issues at stake. And to be candid, people are very, very scared. They are scared that allowing President Trump to jam this confirmation through roll back rights for generations scared about what it means to future voting rights. But what it means for civil rights, workers’ rights, consumer rights and climate change and the right to a safe and legal abortion, not to mention access to health care, regardless of income or preexisting conditions. They are also deeply concerned about what this means for our nation's continued pursuit of the timeless principle equal justice under law. And I share those concerns.

Sadly, my Senate Republican colleagues are doing I believe great harm with this illegitimate process and if they are successful, it has the potential to do great damage.

And I believe that damages the people of our country and to the United States Supreme Court. Thank you, Mr. Chairman.

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