down Justices Barrett and Kagan's testimony in RARE congressional hearing

[0:00] Supreme Court Justices Amy Coney Barrett and Elena Kagan have been testifying before our [0:04] House Appropriations Subcommittee about the Supreme Court's quarter of a billion dollar [0:08] budget request, including major increases they need for security. MSNOW senior Capitol Hill [0:14] reporter and way too early host Ali Vitale is just outside the House hearing room for us. [0:19] And here with me at the table, we have former federal prosecutor Barrett Berger and former [0:24] House January 6th committee senior investigative counsel and former federal prosecutor Temadio [0:29] Aganga Williams. It's good to have all of you guys with me this morning. Ali, I'm going to start with [0:33] you since you're there. Tell us what you're hearing from the members and to what extent they've been [0:38] straying off the topic at hand here. That was always going to be the question, Antonia, for how [0:46] interesting this hearing would be because on its face, it's an appropriations committee hearing [0:51] about looking for more money so that the justices can basically have more security. They're pointing [0:56] to the landscape that shows a rise in threats, a rise in swatting instances, so much so that one [1:02] of the justices, Amy Coney Barrett, actually spoke in pretty chilling personal detail about her own [1:08] experiences with these security threats in recent years. And I just want to play for you that moment [1:13] before we branch out to the broader themes. Watch. Many of us, me included, have received threatening [1:22] anonymous deliveries designed to intimidate and harass us. They have required me to, my children, [1:29] to think about and see things that children should not have to see or think about. My security detail [1:34] sent me home with a bulletproof vest, and I carried it into my house, put it into my bedroom, dropped it [1:39] down on a table, turned around, and my 12-year-old son was standing in the doorway of my bedroom. I [1:44] didn't expect that performing this service was going to put me in the position of explaining to my [1:50] children what a bulletproof vest was and why I had to wear one. That was one of the more chilling [1:57] moments, Antonia, as she talked about the security landscape. And this is one that lawmakers themselves, [2:02] and some of them mentioned this, are sensitive to, as Congress has seen a continual rise in the number [2:09] of threats that members are experiencing. And so funding in the conversation around security is an [2:14] active conversation for members of Congress as well. I think most of the questions when it came to [2:19] security came around, what would the increased security posture look like? Would it be mostly [2:24] at residences? What would it look like at the court? But then also a balance on how to make a notoriously [2:30] non-transparent institution of the Supreme Court slightly more transparent and making sure that [2:36] security efforts don't undermine that. That's another key thread. And then to the extent that lawmakers [2:42] branched off the topic of security, there were some mentions of the shadow docket, of the ways that [2:48] the court takes up other cases of jurisdiction questions. But I will say mostly today has been [2:54] an exercise in messaging discipline and prudence in terms of talking points from the justices, [3:00] which is not necessarily surprising to court watchers, nor to those of us who kind of got the [3:05] preamble of this from a Congress perspective. I will say they're going to wrap up here in the next [3:09] 10 or so minutes because they've got a second version of this hearing on the Senate side, [3:13] but at least on the House side, mostly on message here for the justices. [3:18] Yeah, Ali, the one thing that I would say was a tiny bit surprising is just how nice everyone [3:22] is actually generally being. Often when you watch these hearings on Capitol Hill, [3:27] you know, there are some tense, uncomfortable moments. [3:30] The bar is in hell. [3:31] You know, the bar is in hell. And speaking about that, the conditions that we all and [3:37] these justices are working in, Barrett, I want your thoughts on just sort of how or what you think [3:42] has actually driven this sort of cultural and environmental shift here. At one point, [3:47] I think it was Justice Kagan early on in the hearing, she was talking about how it used to be [3:52] all about working with IT to make sure your BlackBerry was working. And they were thinking about [3:57] physical security of the building. And things are so, so different now. [4:00] Things are so different now. And this is not just an issue plaguing the Supreme Court. This is [4:06] something we've seen plaguing the entire federal judiciary. You have more threats against federal [4:12] judges at this moment than we've ever seen in the past. And I think it comes from a few things. [4:17] Number one, I think it comes from this really heated rhetoric that we hear right from the top, [4:22] from the president's mouth, from members of Congress who are being very polite in this hearing, [4:26] but are not always so polite when they talk about these judges. [4:28] You hear every time somebody talks about a federal judge, it's an Obama appointee. It's a Bush [4:33] appointee. This didn't used to be the thing. We didn't used to have to say the president who [4:37] appointed the person in order to put in context their opinion. But also this real violent rhetoric [4:42] after an opinion, the president sometimes calling judges, you know, these scumbags or they're so dumb, [4:48] you know, really personally posted about Amy Coney Barrett. Correct. Very inflammatory things that [4:53] then, you know, incite people to these acts of violence or to these threats of violence. So [4:58] it is a huge problem. We've even seen the chief justice come out and speak about this in a way [5:03] that we don't usually see. So this is a really persistent and pernicious problem here. [5:08] It's been seven years since the justices sat for a hearing like this and lawmakers had this [5:13] opportunity. So in a way, it wasn't surprising to me, Tamadayo, that some of them took the [5:17] opportunity to ask other questions that had nothing to do with the broader sort of security [5:21] apparatus here. What did you make of those parts, the conversations about the shadow docket? [5:26] And it felt like both justices didn't really directly answer why we have seen so much more [5:30] activity in that way with the court. There were also, though, comments about the American Bar [5:35] Association and lawfare from one Republican congressman. What did you make of the direction [5:40] some of these lawmakers took it? So I think, first, it shows you how much we've been craving [5:44] to hear from these justices outside of oral argument, that we really have not much insight [5:50] into their thinking as they are a co-equal branch of government. I think what it also shows you is [5:55] that, you know, people want accountability for these folks. When we talk about the shadow docket, [6:00] the implication there is, are these justices making decisions without articulating to the public [6:05] why they're making them? That's the import of the shadow decision issue. And then here, [6:10] I think the justices have always been kind of political actors. But in the last 10, [6:14] 15 years, the way they are seen as truly political players, I think, is out of this world. [6:20] And I think that's what the congressmen were really getting at there. And we really couldn't [6:23] ask them what they thought about the politics. It's outside the scope. But I think a lot of the [6:27] attacks and the really violent rhetoric is because we no longer see these justices as removed or above [6:34] the fray. We see them because they're in the fray, because people like President Trump bring them [6:39] in and make them kind of and attacks them. But they're also in the fray if we see these decisions [6:43] that we might perhaps may not have insight into, or we see them choosing to wade into these deep [6:48] political waters, whether it's overturning Roe v. Wade, longstanding precedent. So now when we see [6:53] them as political actors, there's a way in which I think it's relevant whether we have insight into why [6:58] they're doing what they're doing. [6:59] Do you think that there is a real argument to be made that the court's own actions in recent years, [7:05] even just the use of the shadow docket over the course of the last year, may be part of the security [7:12] concern, the environmental threat and sort of pattern that people are starting to see here? [7:17] So I don't think they are to blame for the threats they are receiving. But I think it's part of the [7:22] broader conversation as to where does this branch of government fit in the conversation, right? [7:27] They are not, they for so many years have sat on the hill behind their cloaks. And I think now they [7:33] are seen as political actors. So they're not to blame for the attacks that are going on, but they [7:39] are part of the political discussion and they can no longer act as if they are immune from being part [7:44] of that. One Congresswoman Barrett asked the justices about how, if it were possible, basically, [7:51] for some of the funds they're requesting to be used to address root causes and transparency issues. [7:57] And possible investigations or accountability for people who are actually making these threats. [8:02] And they've kind of pushed it off as that's a DOJ matter, not ours. And I understand that. But is [8:07] that enough of a part of the conversation here? I mean, it does seem like, unless you address the root [8:13] causes of the violence and the frustration and anger and disinformation that is out there, [8:19] arming, increasingly arming, whether it's the justices or members of Congress, it might just [8:26] sort of be a snowball that there really is no end to if you don't address what's starting all this in [8:33] the first place. [8:33] Yeah. The lawmaker had a nice analogy. She said, if my kitchen's flooding, I turn the water off before I [8:38] start mopping. And here, you know, the security funding is the mopping there. You know, we need it. [8:42] We need the mop to clean it up. But absolutely, they need to turn that hose off. [8:44] And this definitely lies in DOJ's laps. They need to really aggressively prosecute people who are [8:52] making threats against the judiciary. At the same time, you need to control how we are speaking about [8:59] judges and what we're putting out there. Even Todd Blanche, who's going to be in the hot seat tomorrow [9:03] in his hearing, has made comments about the judiciary that, you know, can potentially rile people up in [9:11] this sense. So I think it is really incumbent on everybody from the top down to sort of rethink [9:16] how we speak about judges. They are not immune from criticism by any mean. Criticism is fair. It [9:22] always has been. But when we, you know, call them scum or we, you know, really degrade them personally, [9:29] and obviously with the attacks, I think it crosses over into a different sphere. [9:32] Yeah. Ali, I want your thoughts there on the Hill about whether or not some of the other sort of [9:38] political developments of the week. I think most importantly, the passing of Senator Lindsey [9:44] Graham, if that's actually going to complicate any of what comes next from the budgetary [9:49] appropriations perspective, could it impact the process? Do you expect, now that we have, [9:54] we know his sister is his replacement for the time being, for this to move smoothly? What do you see? [10:02] Well, it adds some uncertainty on a lot of different fronts. And I think, yes, [10:06] you're right to point out his role atop the Senate Budget Committee. That is likely to be filled by [10:11] Senator Ron Johnson, a very different kind of lawmaker and a very different kind of senator. [10:16] I think what became clear publicly is what's always been clear privately up here on Capitol Hill, [10:22] which that Lindsey Graham is sort of your consummate Senator Wheeler and dealer. He's in all of these [10:27] major bipartisan talks, even if himself on a public level was someone who was a partisan. He was always [10:33] someone who was really a translator and a go-between for this White House and this Senate. And that's a [10:39] role that is not easily replaced. And so when you try to apply it to a process that is as messy and [10:45] complex as reconciliation, Johnson now is likely to assume that role on the Senate side. But there are [10:52] still questions, even as soon as tomorrow, for Todd Blanche's hearing that Barrett was just talking [10:56] about. Graham was a powerful and senior member of that Judiciary Committee, likely someone who was [11:02] going to vote for Blanche. So it's not a question of where that vote was going to go. But it is a [11:07] question now of if someone is going to be sitting in his place, and then what are the total numbers [11:12] that we are then looking for on the Judiciary Committee, as there are a few members there that [11:18] have expressed a skepticism towards Blanche. I'm thinking of John Cornyn, Tom Tillis, potentially [11:23] even John Kennedy of Louisiana, who said he had some questions for Blanche that he wanted to ask [11:27] tomorrow. Now, we've heard these senators offer tough talk in the past, but then ultimately they've [11:33] mostly fallen in line with their party on the votes. We're going to see what actually happens [11:38] with Blanche. But I think that the outgrowth of Graham, and frankly, this is a similar instance of [11:43] McConnell, absences and unexpected vacancies in a very slim majority environment already just adds even [11:51] further uncertainty to a process that for Republicans, they would like as little uncertainty [11:56] as possible. And obviously that's not where we're at.