-Lawrence v Texas, which held that the government
cannot criminalize gay and lesbian relationships.
Was it correctly decided?
-Senator Blumenthal, I, again, you know,
I said throughout the hearing that I can't grade precedent,
in the words of Justice Kagan,
give it a thumbs up or a thumbs down.
-So you can't give me a yes or no answer.
Again, forgive me for interrupting,
but my time is limited.
-Well, Senator Blumenthal, I can't give a yes or a no,
and my declining to give an answer
doesn't suggest disagreement or agreement.
-Correctly decided, Obergefell vs Hodges?
-Senator Blumenthal, every time you ask me a question
about whether a case was correctly decided or not,
I cannot answer that question
because I cannot suggest agreement or disagreement
with precedents of the Supreme Court.
All of those precedents bind me now as a Seventh Circuit judge,
and were I to be confirmed, I would be responsible
for applying the law of stare decisis to all of them.
Well, Senator, you're implying that I'm poised to say
that I want to cast a vote to overrule Obergefell,
and I assure you I don't have any agenda and I don't --
I'm not even expressing a view and disagreement of Obergefell.
You're pushing me to try to violate
the judicial canons of ethics
and to offer advisory opinions, and I won't do that.
-I think a lot of Americans will be scared
by the idea that people who want to simply marry
or have a relationship with the person they love
could find it criminalized,
could find marriage equality cut back.
I think it would be an America where I wouldn't want to live.
-Well, Senator, to suggest that that's the kind of America
I want to create isn't based in any facts in my record,
and that quote that you read to me from the article
talked about it being par for the course
for those questions to be asked, but didn't say anything about
whether it was appropriate for nominees to answer them.
-Others have answered that same question,
and I'm disappointed that you won't.
-Do you agree with this particular point
of Justice Scalia's view that the US constitution
does not afford gay people the fundamental right to marry?
-Senator Feinstein, as I said to Senator Graham at the outset,
if I were confirmed, you would be getting Justice Barrett,
not Justice Scalia, so I don't think
that anybody should assume that just because Justice Scalia
decided a decision a certain way that I would, too.
I have no agenda, and I do want to be clear
that I have never discriminated
on the basis of sexual preference
and would not ever discriminate
on the basis of sexual preference.
You know, like racism, I think discrimination is abhorrent.
On the questions of law, however, I just,
because I'm a sitting judge
and because you can't answer questions
without going through the judicial process,
can't give answers to those very specific questions.
-Not once but twice you used the term "sexual preference"
to describe those in the LGBTQ community,
and let me make clear, sexual preference
is an offensive and outdated term.
It is used by anti-LGBTQ activists
to suggest that sexual orientation is a choice.
It is not.
sexual orientation is a key part of a person's identity.
So, if it is your view that sexual orientation
is merely a preference, as you noted,
then the LGBTQ community should be rightly concerned
whether you would uphold their constitutional right to marry.
-I certainly didn't mean, and, you know,
would never mean to use a term
that would cause any offense in the LGBTQ community.
So if I did, I greatly apologize for that.
I simply meant to be referring to Obergefell's holding
with respect to same-sex marriage.
-When you did use the term "sexual preference"
earlier today rather than sexual orientation,
is there a difference and what is it?
-Senator, I really, in using that word,
did not mean to imply that I think that, you know --
that it's not a matter of --
that it's not an immutable characteristic
or that it's solely a matter of preference.
I honestly did not mean any offense
or to make any statement by that.
I fully respect all the rights of the LGBT community.
Obergefell is an important precedent of the court.
I reject any kind of discrimination on any sort of
basis.