AILSA CHANG, HOST:

Judge Amy Coney Barrett has spent a second day answering questions from the Senate Judiciary Committee. Hour after hour, the federal appeals court judge bobbed and weaved when Democrats pressed her. They asked how she might rule on the Affordable Care Act, same-sex marriage or a contested presidential election. Democrats argue President Trump's nominee for the high court should recuse herself from a case involving a contested election.

ARI SHAPIRO, HOST:

Texas Republican Sen. Ted Cruz serves on the judiciary committee, and when I talked to him earlier today, he said the threat of a contested election going to the Supreme Court is one reason Judge Barrett should be confirmed.

TED CRUZ: Let me be clear. One of the reasons why the Senate is moving to confirm Judge Barrett before Election Day is because this election, there is a very high chance of election litigation, of a disputed election, brought by Biden, brought by Trump, possibly brought by both. And were this seat to be vacant, were there simply to be eight justices on the court, there is the possibility that the court could decide 4 to 4. And a 4-4 court lacks the authority to make any decisions. That creates a constitutional crisis. It's not good for the country.

So I actually think it would be a disservice to the country were Justice Barrett not to rule on the case, not because I want her to rule one way or the other. I have no idea what the election dispute would be. This is where - Democrats view judges as essentially political operatives. I don't want a judge who will rule for my candidate. I want a judge who will follow the law.

SHAPIRO: If I may, let me shift you to another issue.

CRUZ: Sure.

SHAPIRO: Two of the biggest topics in this hearing have been abortion and the Affordable Care Act. Republicans often argue that lawmakers should decide on the legality of abortion, not the courts. By that measure, is your desire to see the Supreme Court overturn the Affordable Care Act inconsistent since Congress could have repealed the health care law and didn't?

CRUZ: Well, it is interesting if you assess the questioning, at least from the first day of questioning. And Democrats did not lay a glove on her, and they seem to have made a conscious decision not even really to try. And so most of what they talked about was attacking President Trump, and it was health care or Obamacare, and they talked a great deal about their election message that they're running against the president, that they argue that people with preexisting conditions are going to lose their coverage.

Now, that argument is not very credible, given that every single member of the Senate, all 100 senators, agree we are going to protect preexisting conditions. That's a legislative question. We're going to protect preexisting conditions. The disagreement that they have...

SHAPIRO: But if it's a legislative policy question, why are Republicans supporting this case that's coming up November 10 that would gut the Affordable Care Act when, in fact, the Congress could itself have repealed and replaced, as President Trump, you and many other Republicans often promised to do?

CRUZ: I believe that Congress can, should and I hope will repeal and replace Obamacare. And those are the right debates. On the question of the particular lawsuit that is pending, there are legal questions of what's called severability of one piece of the statute versus another. I don't have a particular view on the legal merits of that case. I expect the court will resolve it...

SHAPIRO: Well, the Trump administration is also supporting those Republican attorneys general who are seeking to overturn the Affordable Care Act.

CRUZ: You know what I find interesting, Ari? I recognize that the central Democratic talking point at the hearing was Obamacare preexisting conditions because that's their Democratic campaign narrative for November. But what I found most important from the hearings yesterday was that the Democrats did not defend their position supporting justices who would take away religious liberty, who would take away free speech, who would take away the Second Amendment.

SHAPIRO: Right now it seems like the Senate is in an arms race. Republicans blocked confirmation hearings for Merrick Garland in an election year four years ago and are moving quickly to confirm Judge Barrett now. You have warned that if Democrats take control, they might try to expand the number of seats on the Supreme Court, something that Biden and Harris have neither endorsed nor ruled out. Do you see a way to avert this partisan one-upmanship, or is either party with power inevitably just going to stick it to the other party in whatever way they can?

CRUZ: Look. There is no doubt the battles over Supreme Court nominations and judicial nominations, they're getting more heated and more pitched. And there's a reason for that. The two parties have very, very different visions for what kind of judges they want. And, you know, the framers of the Constitution, they described the judiciary as, quote, "the least dangerous branch" because it can either make laws nor enforce laws; it simply adjudicates and decides disputes.

Well, that's changed, and it really started in the 1960s and the 1970s, when the court began deciding more and more policy issues that ought to be in the legislative arena. That has been a result of the very consistent desire of the left not to rely on the democratic process, not to convince their fellow voters of the merits of their position, but rather to have five unelected lawyers wearing robes decree and answer for the country. I think that is...

SHAPIRO: Sounds like you're saying there's no way to step back from the brink and avert this one-upmanship, and in fact, whichever party with power is just going to try to stick it to the other. Is that right?

CRUZ: Well, I actually think they're quite different in that I don't want to see judges on the bench who are enforcing policy outcomes I support. That's not the court's job. I'm looking for the court to get out of the way and follow the law and let the elected legislatures, which are accountable to the voters, decide policy issues.

SHAPIRO: That's Texas Sen. Ted Cruz, a Republican who sits on the judiciary committee. His new book is "One Vote Away: How A Single Supreme Court Seat Can Change History."

Senator, thank you for speaking with us.

CRUZ: Thank you, Ari. Enjoyed it. Transcript provided by NPR, Copyright NPR.