Day two of Brett Kavanaugh’s Supreme Court confirmation hearing


GOOD MORNING AND WELCOME IN LIVE
COVERAGE TRUMP’S NOMINEE TO BE THE NEXT SUPREME COURT JUSTICE
STAY TUNED TO START THAT 9:30 AM EASTERN TIME AND WE WILL BRING
INTO LIVE WE’RE LOOKING AT A SHOT OF THE HEARING ROOM IN A
WHILE, SENATORS WILL GET THEIR CHANCE TO GRILL THE NOMINEE. I
AM JOINED HERE IN THE STUDIO WITH EUGENE SCOTT, REPORTER. YOU
CAN CATCH OUR BROADCAST TODAY AT THE HOME PAGE. A SPECIAL HELLO
TO VIEWERS . THANK YOU FOR WATCHING AND
THANK YOU FOR COMMENTS. YOU CAN FOLLOW IF YOU WOULD LIKE MORE
FROM WASHINGTON POST. THE DEMOCRATS HAVE BEEN WAITING FOR
A CHANCE TO PUBLICLY ASK QUESTIONS OF THIS NOMINEE FOR
THE BIGGEST TOPIC THAT WILL COME UP.
>>I’M SURE THERE WILL BE ABORTION THERE ARE LOTS OF
INTEREST FROM THE CONSERVATIVES STANCE
AND WHAT HE COULD RULE ON IN THE FUTURE. OTHER TOPICS ARE VOTING
RIGHTS AND HIGHER EDUCATION AND A LOT OF FEES WILL COME UP BY SOME
LAWMAKERS WERE LOOKING TO BE LEADERS OF THE DEMOCRATIC PARTY
MOVING FORWARD. >>ON CAPITOL HILL, WE ARE
COVERING THIS LIVE AND THANK YOU SO MUCH FOR STEPPING
OUT FOR ONE MOMENT TO JOIN US. >>YOU WROTE A PIECE LOOKING AT
THE 10 ISSUES LIKELY TO COME UP TODAY. YOU WERE THERE YESTERDAY
WHEN THE FIREWORKS STARTED. >>YESTERDAY, WE HEARD THE
OPENING REMARKS. TODAY WILL BE THE FIRST TIME SENATOR DEMOCRATS
WILL QUESTION HIM IN ADDITION TO ABORTION, WE WILL HEAR QUESTIONS
FROM FEINSTEIN ABOUT GUN CONTROL, AND WHAT KAVANAUGH’S
VIEWS WILL BE ON THOSE LAWS. IN ADDITION, WE WILL HEAR ABOUT HOW
HE CAN SEPARATE HIMSELF FROM THE MAN WHO NOMINATED HIM, TRUMPS
QUESTIONS ABOUT LIMITS ON RESIDENTIAL POWER.
>>THIS IS IMPORTANT NOT TO DEMOCRATS BUT A COUPLE OF
REPUBLICANS ON THE COMMITTEE AS WELL. MAINLY STAFF AND JEFF FLAKE. DO YOU THINK THEY
WILL HOLD KAVANAUGH TO A COMMITMENT? WILL HE RECUSE HIMSELF IF THERE
IS A DECISION THAT COMES BEFORE HIM REGARDING PRESIDENTIAL
POWER? >>I THINK THE REPUBLICANS ARE
MORE EXPRESSING THEIR CONCERNS ABOUT TRUMPS ATTACKS ON THE
JUSTICE DEPARTMENT. WE WILL SEE THE SENATE DEMOCRATS TRYING TO
ASK KAVANAUGH ABOUT WHETHER HE WILL BE INVOLVED IN A
CASE ABOUT WHETHER PRESIDENT CAN BE SUBPOENAED BEFORE INDICTED.
>>YOU GET THE SENSE WE WILL GET A COMMITMENT FROM KAVANAUGH
TODAY. BUT HISTORY SHOWS US NOMINEES CAN AVOID EXPRESSING AN
OPINION THAT CAN OBLIGATE THEM IN THE FUTURE.
>>RIGHT. KAVANAUGH HAS BEEN HAVING MOCK
HEARINGS AND PRACTICING ANSWERS. I THINK WILL HEAR HIM TALKING
ABOUT BEING A NEUTRAL UMPIRE AS CHEAP JUSTICE ROBERTS AS AN
BEING IMPARTIAL AND OPEN-MINDED AND NOT COMMITTING TO ANY
POSITION. >>YESTERDAY DURING KAVANAUGH’S
OPENING STATEMENT A LONG ANTICIPATED WE GOT TO IT LATE IN THE AFTERNOON. I DID NOT
HEAR SUBSTANCE. HEARD THEM TALKING ABOUT FAMILY AND HOW HE
ENJOYS COACHING. IS THERE ANYTHING YOU GOT FROM THAT THAT
GIVES US A SENSE OF WHAT KIND OF SUPREME COURT JUSTICE HE WOULD
BE? >>HE TALKED ABOUT BEING A TEAM
PLAYER ONE OF NINE AND IN THE DC CIRCUIT WHEN HE HAS DISAGREED
WITH COLLEAGUES, HE HAS VERY GOOD RELATIONSHIPS WITH THE
OTHER JUDGES. >>THAT GIVES US A SENSE OF WHAT HE
WILL BE LIKE IF HE IS CONFIRMED.>>SHE IS COVERING THE HEARING LIVE.
>>EUGENE, REPUBLICANS HAVE TO PLAY DEFENSE. THEY SHOW THEY
SUPPORT THE NOMINEE AND GIVE THE AMERICAN PUBLIC A REASON WHY.
WHAT YOU EXPECT? >>EXPECT THEM TO ARGUE THAT HE
HAS BEEN WELL VETTED HE HAS A REPUTATION ON THE BENCH AND A
CAREER ELSEWHERE. HE IS UPHELD AMERICAN INTERESTS. THEY WILL
PROVE TO DEMOCRATS AND OTHER CONSERVATIVES WHO HAVE
QUESTIONS, THAT CAN BE ANSWERED AND BE 100,000 PAGES OF MISSING
DOCUMENTS THAT HAVE BEEN NOT MADE AVAILABLE TO CONGRESS THAT HE CAN BE TRUSTED, EVEN IF THEY
DO NOT KNOW THEMSELVES FROM FIRST ANALYSIS.
>>DEMOCRATS WANTED TO POINT OUT YESTERDAY, THAT THEY ARE
ESPECIALLY LOOKING FOR DOCUMENTS DURING TIME WHEN HE SERVED IN
THE BUSH WHITE HOUSE. >>HE HELD UP A FLOWCHART. IT
SHOWED A 35 MONTH GAP. HE SAYS THEY DO NOT HAVE INFORMATION
ABOUT. REPUBLICAN SAY THAT’S A HUGE
LIST. LUDDITE INFORMATION, BECAUSE HE WAS ESSENTIALLY A
STAFF SECRETARY, SO MUCH INFORMATION WENT THROUGH HIS
HANDS. IT WOULD NOT GIVE ANY INSIGHT INTO HIS JUDICIAL
HISTORY AND WHERE HE WOULD BE ON THE BENCH. DEMOCRATS MADE THIS
AN ISSUE YESTERDAY. DID THEY GET CLOSER TO ACCESSING DOCUMENTS?
>>NO. WE SAW A FEW MEMBERS MAKING THE MORNING SHOW CIRCUIT
COMMUNICATING THAT. IT IS HARD TO BELIEVE THAT REPUBLICANS
WOULD BE MAKING THE SAME ARGUMENT WITHIN THE WHITE HOUSE.
THEY WOULD NOMINATE SOMEBODY WHO HAD 35 MONTH GAP. THAT
INFORMATION WOULD NOT TELL THEM MUCH FOR THE SOLE ARGUMENT FROM
PEOPLE ON THE LEFT AND SOME ON THE RIGHT, SUPPORT THE IDEA THAT
MAYBE THIS SHOULD NOT HAPPEN. IT IS A HUGE LIFT. WE CANNOT GET
INFORMATION FROM YOU FIVE MONTHS. MAYBE THE VOTE SHOULD
NOT HAPPEN NOW. THE LIKELIHOOD OF REPUBLICANS GOING WITH THAT
ARGUMENT .
>>LET’S LISTEN TO HOW YESTERDAY’S HEARING STARTED. THE
FIRST DAY IS USUALLY VERY PROCEDURAL. WE KNOW WHAT TO
EXPECT. WE HAVE OPENING STATEMENTS. FIREWORKS ARE EXPECTED ON DAY
NUMBER TWO. THE INTERVIEW AND ASK QUESTIONS. YESTERDAY, JUST SECONDS IN, DEMOCRATS TRIED TO
STOP THE PROCEDURE. LET’S WATCH YESTERDAY MORNING’S OPENING.
>>MR. CHAIRMAN, I WOULD LIKE TO BE RECOGNIZED TO ASK A QUESTION.
THE COMMITTEE RECEIVED LAST NIGHT, LESS THAN 15 HOURS AGO,
>>THOUSANDS OF PAGES OF DOCUMENTS
THAT WE HAVE NOT HAD AN OPPORTUNITY TO REVIEW OR READ OR
ANALYZE. >>YOU ARE OUT OF ORDER. I WILL
PROCEED. >>WE CANNOT POSSIBLY MOVE
FORWARD. >>I WILL GIVE A VERY WARM WELL,
TO JUDGE KAVANAUGH AND HIS WIFE. THEIRS TWO DAUGHTERS.
>>MR. CHAIRMAN, WE RECEIVED 41,000 DOCUMENTS.
>>ANYONE ELSE JOINING US.
>>WE BELIEVE THIS HEARING SHOULD BE POSTPONED.
>>IT IS A EXCITING DAY FOR ALL OF YOU.
>>MR. CHAIRMAN OF WE CANNOT BE RECOGNIZED, I MOVED TO ADJOURN.
>>YOU CAN HEAR THEIR HE IS PLOWING THROUGH AND TRYING TO
CONTINUE. HE DID STOPPED GIVE THEM A CHANCE TO MAKE THEIR
CASE. HE DID NOT ALLOW THAT. HE SAID HE HAS THE ABILITY TO TURN IT
INTO AN EXECUTIVE SESSION. IT IS NOT LIKE THAT WOULD BE TERRIBLY
DIFFICULT FOR THE DEMOCRATS WERE NOT LIKELY TO GET THEM TO
ADJOURN. THEY STILL WANTED TO MAKE THIS DEMONSTRATION. THEY
SHOW THE AMERICAN PUBLIC THEY ARE NOT HAPPY. WOULD THAT CHANGE
ANYBODY’S OPINION? THEY ARE NOT GOING TO VOTE FOR THE NOMINEE.
>>EDWARD FIRM — THEY WOULD BE
POINTED TO EXAMPLES. THINGS HE HAD SAID OR DONE WOULD MAKE HIM
THE BEST JUDGE FOR CONSERVATIVES OR FOR MAKING A TERRIBLE
SELECTION ON THE LEFT. I WOULD ASK THEM TO WAIT. RIGHT NOW,
THINGS SEEM SO CLEARLY PARTISAN, AND NOT WITH A LOT OF SUBSTANCE
BEHIND IT. THERE IS NOT ENOUGH MATERIALS TO POINT TO WHY PEOPLE
HAVE THE POSITIONS THEY HAVE. THERE REPUBLICANS WANT TO GET
THIS CONFERENCE GOING. THE SUPREME COURT TAKES THE BENCH IN
OCTOBER AS THEY DO EVERY YEAR. AT THE TIME LINE AND MOTIVATOR.
THE SUBTEXT IS INTERESTING. REPUBLICANS WANT TO GET THIS
GOING BEFORE THE MIDTERM ELECTIONS. WE OBVIOUSLY HAVE
SEEN THIS HAPPEN DURING OBAMA’S TERM. THEY NEED TO HAVE THE FULL BEEN SEEDED WITH NINE. THEY
HAVE A CONCERN IF THEY LOSE THE HOUSE OR LOSE THE SENATE, THAT COULD REALLY MAKE IT
DIFFICULT FOR ANY SUPREME COURT NOMINEE.
>>ABSOLUTELY. THEY WANT TO GET THIS MOVING FORWARD. TRUMP HAS
ONE OF THE LARGEST CONSTITUENCIES. THIS IS ONE OF
THE REASON THEY SHOULD GET ON THE TRUMP TRAIN. IF THEY CAN GET
THIS CONFIRMED, KAVANAUGH CONFIRMED BY OCTOBER, WHEN
CONSERVATIVES HEAD TO THE POLLS A FEW WEEKS LATER, TRUMP COULD
SAY I HAVE FULFILLED SO MANY OF MY PROMISES, THAT IS WHY YOU
SHOULD BACK ME. IF THAT DOES NOT HAPPEN, WOULD ADD TO THE BACKING
FROM THE DEMOCRATS. >>REPUBLICANS STOOD OUT IN
THEIR OPENING STATEMENTS. IT IS IMPORTANT TO POINT OUT THEY WERE REALLY SUPPORTIVE OF THE
NOMINEE. THEY PRAISED KAVANAUGH THE PRAISES RECORD THE PRIEST
HIM. THEY BOTH VOICED CONCERNS ABOUT TRUMP’S BEHAVIOR.
ESPECIALLY THE WEEKEND. HE WAS TWEETING AGAINST HIS OWN
ATTORNEY GENERAL JEFF SESSIONS. LET’S LISTEN TO HOW JEFF FLAKE
TALKED ABOUT THIS. >>I KNOW AND IT HAS BEEN BROUGHT
UP TODAY THAT A LOT OF THE CONCERN ON THE OTHER SIDE OF THE
AISLE, STEMS FROM THE CONCERN OF THE ADMINISTRATION THAT DOES NOT
SEEM TO UNDERSTAND AND APPRECIATE SEPARATION OF POWERS,
AND THE RULE OF LAW. I HAVE THAT CONCERN AS WELL. IF YOU LOOK AT
WHAT WAS SAID JUST YESTERDAY. I THINK IT IS REALLY CONCERNING
THE PRESIDENT SAID IN A TWEET TO LONG-RUNNING OBAMA. INVESTIGATIONS WERE BROUGHT TO A
WELL-PUBLICIZED CHARGE, JUST AHEAD OF THE MIDTERMS. TWO EASY WINS NOW IN DOUBT
BECAUSE THERE IS NOT ENOUGH TIME GOOD JOB JEFF. THAT IS WHY A LOT
OF PEOPLE ARE CONCERNED ABOUT THIS ADMINISTRATION. WHY THEY
WANT TO ENSURE THAT OUR INSTITUTIONS HOLD THIS FOR THEY
HAVE. JEFF SESSIONS HAS RESISTED PRESSURE FROM THE PRESIDENT TO
PUNISH HIS ENEMIES AND LIVE PRESSURE ON HIS FRIENDS. MANY OF
THE QUESTIONS THAT YOU WILL GET ON THE OTHER SIDE OF THE AISLE
AND FROM ME, WILL BE HOW YOU VIEW THAT RELATIONSHIP. WHERE
YOU BELIEVE ARTICLE 1 POWERS AND ARTICLE TO POWERS OF THE
ADMINISTRATION BEGIN. >>THE QUESTION THEREFROM JEFF
FLAKE WE CAN EXPECT HIM TO ASK
QUESTIONS ALONG THOSE LIKE TODAY WHEN HE GET THE OPPORTUNITY TO
QUESTION JUDGE KAVANAUGH. HOW IMPORTANT IS HIS ROLE ON THIS
COMMITTEE? >>IT IS VERY IMPORTANT. THEY
HAVE MADE NAMES FOR THEMSELVES AS TRUMP CAME INTO THE WHITE
HOUSE. THEY WANT TO SEE SOMEONE ON THE BENCH WHO IS NOT GOING TO
BE A YES MAN. THE CHALLENGES, REPORTS FROM INSIDE THE WHITE
HOUSE ARE ABOUT TRUMP LOOKING FOR SOMEONE WHO WILL NOT BE THE
JUDICIAL VERSION OF JEFF FLAKE. WHETHER OR NOT KAVANAUGH IS
GOING TO FOLLOW THEIR APPROACH TO THIS
ADMINISTRATION IS GOING TO BE KEY TO THESE LAWMAKERS FOR WHEN
THE PRESIDENT INTRODUCED KAVANAUGH TO THE AMERICAN
PUBLIC, IT WAS WITH KAVANAUGH I RESPONDED WITH SO MUCH PRAISE OF
TRUMP, THE PEOPLE WERE VERY SHOCKED AND WILL NOT EXPECT HIM
TO TAKE THE APPROACH WE HAVE SEEN FLAKE TOOK WHEN IT COMES TO
TRANS-DECISIONS AND BEHAVIORS. >>CERTAINLY WE WILL HEAR MORE
ABOUT THIS HISTORY TODAY. HE DID WORK, GEMSTAR INVESTIGATION
LOOKING INTO PRESIDENT CLINTON AND DEMOCRATS HAVE RAISED CONCERNS
ABOUT HIS ROLE WILL NOT. AFTERWARDS THOUGH AFTER HE SPENT
TIME WORKING IN THE BUSH WHITE HOUSE IN PARTICULAR, HE PUT OUT
AN ARTICLE THAT WE HEARD HIM MENTION YESTERDAY IN MINNESOTA
LAW REVIEW WHERE THE JUDGE SAID CONGRESS MAY CONSIDER LAW
EXEMPTING A PRESIDENT WHILE IN OFFICE FROM CRIMINAL PROSECUTION
AND INVESTIGATION. THAT’S A LOT OF WHAT DEMOCRATS
WANT TO HEAR ABOUT TODAY. THE SOCIAL ISSUES SUCH AS ABORTION.
GUN CONTROL AND GAY MARRIAGE BUT ALSO THE BIG QUESTION OF WHERE
DOES THE PRESIDENT’S POWER BEGIN AND AND.
>>ABSOLUTELY. THE OBVIOUS INTERSECT IS THAT WE HAVE AN
INVESTIGATION ONGOING. IT COULD FIND SOMETHING THAT COULD LEAD THE PRESIDENT TO HAVING TO
ANSWER FOR HIS ACTIONS IF SOMETHING DID HAPPEN DURING THE
ELECTION CAMPAIGN THAT THEY WANT TO KNOW THEY WILL HOLD HIM
ACCOUNTABLE FOR IF KAVANAUGH DOES NOT THINK THIS IS SOMETHING THAT SHOULD
HAPPEN TO A SITTING PRESIDENT THAT IS VERY CONCERNING FOR
DEMOCRATS. >>YOU MENTIONED YOU WILL BE
WATCHING DEMOCRATS IN PARTICULAR WHO MAY HAVE POLITICAL AMBITIONS
BEYOND THE SENATOR EVEN IF THEY CANNOT MOVE THE NEEDLE ON
GETTING THE SENATE AS A BODY TO VOTE AGAINST JUDGE KAVANAUGH,
WHAT OPPORTUNITY DO DEMOCRATS HAVE TODAY TO GET A VITAL
EXCHANGE WITH HIM THAT THAT COULD USE IN THE CAMPAIGN AD?
THEY COULD SAY LOOK, I AM FIGHTING FOR YOU?
>>THE DEMOCRATIC PARTY NOW IS A PARTY THAT IS CONTROLLED BY THE
GRASSROOTS AND THE BASE IS INCREDIBLY DIVERSE,
IN TERMS OF GENDER, AGE RACE, SOCIAL ECONOMIC STATUS. THINK WE WILL
BE LOOKING FOR LAWMAKERS TO MAKE COMMENTS ABOUT THE WORKING POOR.
IMMIGRANTS, GAY RIGHTS AND THESE ARE KEY ISSUES. THEY WILL
MOTIVATE THE BASE TO COME OUT AND 2018 AND MORE IMPORTANTLY
FOR SOME OF THESE LAWMAKERS AND 2020.
>>WHO ARE YOU GOING TO BE WATCHING FOR IN PARTICULAR?
>>HARRIS, BRAND SOME LAWMAKERS WE THINK COULD BE INTERESTED IN
HAVING LARGER AND HIGHER AMBITION.
>>>>YOU REALLY HAVE A SENSE
YESTERDAY MORNING THINGS COULD TAKE OFF AND YOU SAW RIGHT OFF
THE BAT. KAMALA HARRIS WAS THE FIRST ONE TO TRY TO SLOW THINGS
DOWN . YOU SEE HERE THE SENATOR IS PREPARING. EC REPUBLICANS ON
THE RIGHT SIDE OF YOUR SCREEN. THIS WILL BE THE DAY THAT JUDGE KAVANAUGH SITS IN
FRONT OF THEM AND GETS QUESTIONS FROM EACH MEMBER OF THE
COMMITTEE. THE WAY THE CHAIRMAN HIS HEAD THAT THE EACH SENATOR
GETS 30 MINUTES ROSS QUESTIONS AND GET THE QUESTION-AND-ANSWER.
HE DEFINITELY WENT OVER HIS TIME I MET YESTERDAY. HE DID THIS
WHOLE PREAMBLE ABOUT HIS RELATIONSHIP TO THE COMMITTEE AND HOW MUCH HE LIKES THE
CHAIRMAN. WHEN HE THOUGHT IT WAS ABOUT TO FINISH HE SAID AND NOW
FOR MY OPENING STATEMENTS. WE WILL SEE HOW LONG AND DRAWN OUT
PEOPLE MAKE THIS TODAY. THINK THAT WILL HELP US LEARN THE
MOST. NOT JUST HEARING FOR — FROM THE SENATORS THEMSELVES.
ANOTHER ROUND OF 20 MINUTES. THIS MAY GO 12 HOURS TODAY,
ACCORDING TO THE SENATE OFFICES. WE ARE ALSO GOING TO SEE ANY
CONTINUATIONS WHAT IS NOT FINISHED UP TODAY, TOMORROW.
AFTER THAT , WE WILL HEAR FROM PEOPLE WHO
ARE SUPPORTIVE OF THE NOMINEE AND OPPOSE. WE CAN EXPECT IT TO
RUN THROUGH FRIDAY. WHAT YOU THINK DEMOCRATS WILL TAKE AWAY
IS A WIN TODAY? WHAT WOULD REPUBLICANS TAKE AWAY IS A WIN
TODAY? >>I THINK DEMOCRATS CAN
COMMUNICATE AND APPROVE WE JUST DO NOT KNOW ENOUGH ABOUT
KAVANAUGH TO PUT HIM IN THIS POSITION OF POWER. TO CREATE
MORE DOUBT TO INCREASE THE LACK OF APPROVAL AND SUPPORT FOR
CAVENDER. THAT WILL BE AN ARGUMENT THEY WILL BE ABLE TO
MAKE HEADING INTO THE MIDTERM ELECTIONS IN 2020. THEY WILL SO
THAT TRUMP AND THE REPUBLICAN PARTY
AND PEOPLE TO BACK HIM OUR PEOPLE WE DO NOT KNOW THAT WELL.
THAT IS AN ARGUMENT I THINK DEMOCRATS AND SOME INDEPENDENTS
ARE SENSITIVE TO RIGHT NOW. CONSIDERING SOME OTHER ISSUES WE
HAVE HAD COME UP WITH PEOPLE RELATED TO TRUMP IN THE LAST
COUPLE OF WEEKS. I THINK CONSERVATIVES WILL SHOW, IT WILL BE A WIN FOR
CONSERVATIVES IF THEY CAN PROVE TO THEIR BASE THIS IS SOMEBODY
THAT CAN PROTECT THEIR VALUES AND THEIRS VISION OF WHAT
AMERICAN THAT’S — AMERICA SHOULD BE.
>>THERE IS KAVANAUGH COMING IN. THERE IS SENIOR — SENATOR
KENNEDY. YOU SEE HIM WITH CHUCK GRASSLEY ESCORTING HIM TO
HIS FEET. >>WE SAW SUPPORTIVE OPENING
STATEMENTS FROM CONDOLEEZZA RICE. ALSO A LIBERAL LAWYER , WHO IS THE PERSON WHO HAS
ARGUED THE MOST CASES BEFORE THE SUPREME COURT. THE MOST IN
HISTORY, AS A WOMAN AS SHE SUPPORTED HIM. SHE IS THE ONLY
LIBERAL WHO IS WILLING TO PUT HER NAME OUT THERE SUPPORTING
THIS NOMINEE. CAMERAS ARE GOING IN FOR THAT
CLASSIC SECTORS FROM HE LOOKS THAT’S — SHOT. THERE WERE 70 ARRESTS MADE
YESTERDAY. >>THEY WERE STANDING SILENTLY AND
THE SENATE BUILDING. THERE BACK TODAY.
>>THE PROTESTERS ARE OUTSIDE TODAY AS WELL. THERE IS A CROWD.
THEY ARE NOT INTERESTED IN GETTING KAVANAUGH ON THE BENCH. THEY
WERE CHANTING AND HOLDING SIGNS.>>ONE THING I NOTICED
YESTERDAY, HE DEFINITELY SEEMED CONTENT. HE WAS DEFINITELY
MAKING NOTES. LIBERAL LAWMAKERS WERE TAKING
JOBS THAT HIM FOR I’M SURE HE WILL RESPOND TO THOSE. HE WILL
CLARIFY WHAT HE PROBABLY VIEWS AS A MISREPRESENTATION OF HIS
MESSAGE AND CAREER AND WE WILL BRING YOU THIS LIVE AND UNINTERRUPTED TODAY.
>>THIS MAY RUN FOR 12 HOURS. STAY WITH US AS WE COVERED THIS
HEARING. >>WE WILL LEAVE YOU NOW IS THE
CHAIRMAN PREPARES. >>THANK YOU, SO MUCH FOR YOUR
ANALYSIS.’S GAS — ANALYSIS.
>>THANK YOU. >>GOOD MORNING, EVERYBODY. WE
WELCOME EVERYBODY BACK AGAIN. ESPECIALLY, JUDGE KAVANAUGH AND
HIS WIFE ASHLEY. YESTERDAY EACH SENATOR MADE THEIR OPENING
REMARKS. WE ALSO HEARD FROM THREE PEOPLE WHO HAD THE HONOR
OF INTRODUCING JUDGE KAVANAUGH. SECRETARY RICE, SENATOR
APARTMENT AND ATTORNEY LISA BLACK. WE HEARD FOR THE FIRST TIME
DIRECTLY FROM JUDGE KAVANAUGH. HE MADE A POWERFUL, COMPELLING
AND CONVINCING STATEMENT DEMONSTRATING HIS EXCEPTIONAL
BACKGROUND AND QUALIFICATIONS TO SERVE OUR NATION’S HIGHEST
COURT. THE NEWS REPORTER THAT
DEMOCRATIC MEMBERS PLOTTED WITH LEADERS TO DISRUPT THE HEARING
YESTERDAY. DEMOCRATIC SENATORS INTERRUPTED THE HEARING 63 TIMES
BEFORE LAUNCH AND IN THE AUDIENCE PEOPLE, 70 PEOPLE WERE
ARRESTED WHO WERE FOLLOWING THEIRS LEAD. THEY WERE. CONSTITUTIONALLY
PREPARED TO DO THAT, DOING WHAT THE CONSTITUTION SAYS THE RIGHT
OF FREEDOM OF SPEECH. WE ALSO WERE ABLE TO FINALLY CONDUCT THE
HEARING THE WAY IT SHOULD BE CONDUCTED.
>>YESTERDAY IT WAS ONLY OUR TIME AS
COMMITTEE MEMBERS, THAT WE WASTED ON DISRUPTION AND
DISORDER. TODAY IS DIFFERENT.>>MATT — WE ARE NOT WORKING WITH THE
DEMOCRATS. WE ARE WORKING FOR OURSELVES.
>>OUR TIME AS COMMITTEE MEMBERS YESTERDAY, WE MAKE OUR CASE
TODAY IT IS DIFFERENT. TODAY IS THE DAY AMERICAN PEOPLE ARE
SUPPOSED TO HEAR FROM THE NOMINEES. THIS MORNING, WE WILL
BEGIN QUESTIONING FROM JUDGE KAVANAUGH. WE WILL GET THROUGH
ALL MEMBERS FIRST ROUNDS OF QUESTIONS TODAY, NO MATTER HOW
LONG IT TAKES. MEMBERS ARE ALLOTTED 30 MINUTES FOR THE
FIRST ROUND. IF YOUR TIME EXPIRES, YOUR REMAINING
QUESTIONS MAY BE CONTINUED OF COURSE, IN THE SECOND ROUND
TOMORROW. WE WILL TAKE A LUNCH BREAK AS WELL AS PROBABLY TWO
OTHER 15 MINUTE BREAKS THROUGHOUT THE DAY. FOR NOW,
LET’S PLAN OUR FIRST BREAK AFTER FIVE SENATORS OR SO, HAVE
COMPLETED THEIR QUESTIONS. I ASSUME THIS WILL BE AROUND 12 15
P.M. WHICH WILL COINCIDE WITH A FLOOR VOTE THAT IS ALREADY
SCHEDULED. THIS WILL BE A 30 MINUTE BREAK. JUDGE, IF YOU WOULD LIKE TO TAKE
A BREAK ANY OTHER TIME, LET US KNOW. WE ARE HAPPY TO
ACCOMMODATE THAT. WITH THAT, I WILL START THE QUESTIONING OF MY
30 MINUTES. JUDGE FOR THE LAST 12 YEARS YOU
HAVE SERVED AS A FEDERAL CIRCUIT JUDGE ON ONE OF THE MOST
INFLUENTIAL CIRCUITS IN AMERICA. YOU OFFERED 307 JUDICIAL
OPINIONS. THAT TOTALS MORE THAN 10,000 PAGES OF RECORD. YOU HAVE
DECIDED SOME OF THE MOST PRESSING LEGAL ISSUES FACING OUR
COUNTRY. THE SUPREME COURT OF THE UNITED STATES THE ONE YOU
ARE NOMINATED TO BE ON, HAS ADOPTED YOUR LEGAL POSITION FROM
AT LEAST 12 OPINIONS. THE SENATE JUDICIARY COMMITTEE HAS RECEIVED
DOZENS OF STRONG LETTERS OF SUPPORT FROM HUNDREDS OF PEOPLE.
THEY ARE FROM ALL ACROSS THE POLITICAL SPECTRUM. THE AMERICAN
BAR ASSOCIATION HAS GIVEN YOU ITS HIGHEST RATING UNANIMOUSLY
WELL-QUALIFIED FOR MY DEMOCRATIC COLLEAGUES HAVE SAID, THAT THIS
IS THE GOLD STANDARD OF JUDICIAL NOMINATION. THERE IS NO DISPUTE,
THAT YOU ARE ONE OF THE MOST QUALIFIED SUPREME COURT
NOMINEES. SOME PEOPLE SAY THE MOST QUALIFIED AND I DO NOT
DISAGREE WITH THEIRS JUDGMENT. THAT COULD BE FOR ANYBODY COMING
BEFORE THE UNITED STATES SENATE A I’M NOT THE ONLY ONE WHO SAYS
THAT, BECAUSE WE HAVE A LETTER FROM ROBERT BENNETT.
SURPRISINGLY, PRESIDENT CLINTON’S ATTORNEY AND YOUR
OPPOSING COUNSEL DURING THE INVESTIGATION OF CLINTON. HE
WROTE VERY STRONG LETTER IN SUPPORT OF YOUR CONFIRMATION
QUOTE, KAVANAUGH IS THE MOST QUALIFIED PERSON ANY REPUBLICAN
PRESIDENT THAT COULD BE NOMINATED WOULD THEY FAIL TO
CONFIRM KAVANAUGH IT WOULD NOT ONLY MEAN PASSING UP THE
OPPORTUNITY TO CONFIRM A GREAT JURIST, BUT IT WOULD ALSO
UNDERMINE STABILITY, IN POLITICS TWICE OVER. FIRST IN PLAIN
POLITICS, WITH SUCH AN OBVIOUSLY QUALIFIED NOMINEE AND THEN
AGAIN, IN LOSING THE OPPORTUNITY TO PUT SUCH A STRONG ADVOCATE OF
DECENCY AND’S ABILITY ON OUR NATION’S HIGHEST COURT. MR.
BENNETT ALSO SPEAKS HIGHLY OF YOUR INTEGRITY AND TO YOUR
FAIRNESS AND OPEN-MINDEDNESS. AND SO WITHOUT OBJECTION I WOULD
ENTER THAT LETTER IN RECORD. NOW TO A QUESTION. I IMAGINE THAT
YOUR 12 YEARS OF JUDICIAL SERVICE ON THE SECOND HIGHEST COURT IN
THE LAND, HAS GIVEN YOU PLENTY OF OPPORTUNITY TO THINK ABOUT MY
FIRST QUESTION. WHICH IS, WHAT MAKES A JUDGE A GOOD ONE AND WHAT INFLUENCES IN YOUR LIFE
HAVE SHAPED YOUR VISION OF HOW A JUDGE SHOULD GO ABOUT DOING HIS
JOB? >>THANK YOU MR. CHAIRMAN. I
THINK THE FIRST QUALITY OF A GOOD JUDGE IN OUR SYSTEM IS
INDEPENDENT. — INDEPENDENCE COMES DIRECTLY FROM ARTICLE
NUMBER THREE OF THE CONSTITUTION. THE INDEPENDENCE OF THE FEDERAL
JUDGES REALLY IS GUARANTEED BY THE FRAMERS IN OUR LIVES TENURE.
BECAUSE WE HAVE LIFE TENURE, WE ARE INDEPENDENT FROM PUBLIC
PRESSURE. THE FIRST THING THAT MAKES IT THE JUDGE’S
INDEPENDENCE. WE ARE NOT SWAYED BY POLITICAL OR PUBLIC PRESSURE
THAT TAKES BACKBONE AND FORTITUDE. THE GREAT MOMENTS IN
AMERICAN JUDICIAL HISTORY, THE JUDGES HAD BACKBONE AND
INDEPENDENCE. YOU THINK ABOUT YOUNGSTOWN STEEL. YOU THINK
ABOUT FOR EXAMPLE, BROWN VERSUS BOARD OF EDUCATION. THE COURT
CAME TOGETHER AND KNEW THEY WERE GOING TO FACE POLITICAL
PRESSURE. THEY STILL ENFORCED THE PROMISE IN THE CONSTITUTION.
YOU THINK ABOUT UNITED STATES VERSUS NIXON. THAT IS ONE OF THE GREATEST MOMENTS IN AMERICAN
JUDICIAL HISTORY ARE CHIEF JUSTICE BURGER WHO HAD BEEN
APPOINTED BY NIXON. THAT BROUGHT THE COURT TOGETHER IN A
UNANIMOUS DECISION TO ORDER PRESIDENT NIXON IN RESPONSE TO A
CRIMINAL TRIAL SUBPOENAED TO DISCLOSE INFORMATION. THOSE ARE
GREAT MOMENTS OF INDEPENDENCE AND UNANIMITY ARE IMPORTANT.
RESPECT FOR PRESIDENT IS ANOTHER ONE. WE ARE SYSTEM A
CONSTITUTIONAL PRESIDENT. PRESIDENT IS NOT JUST THE JUDICIAL POLICY
IT IS STATED IT IS JUST THE POLICY. BECOMES RIGHT FROM
ARTICLE NUMBER THREE OF THE CONSTITUTION. ARTICLE 3 OF THE
CONSTITUTION REFERS TO THE JUDICIAL POWER. WHAT DOES THAT
MEAN WHAT DOES JUDICIAL POWER MEAN? YOU LOOK AT FEDERAL 78 IS
DESCRIBED AS A SYSTEM OF PRECEDENT IT IS ROOTED INTO THE
CONSTITUTION ITSELF. IT IS CONSTITUTIONALLY DICTATED TO
PAY ATTENTION AND TAKE HE TO THE RULES OF PRECEDENT. BEYOND
THAT, BEING A GOOD JUDGE MEANS TO PAY
ATTENTION TO THE WORDS THAT ARE WRITTEN. THE WORDS OF THE
CONSTITUTION, THE WORDS OF THE STATUTES THAT ARE PASSED BY
CONGRESS. NIGHT DOING WHAT I WANT TO DO, NOT DEFERRING WHEN
THE EXECUTIVE REWRITES THE LAWS PASSED BY CONGRESS,
RESPECT FOR THE LAWS PASSED BY CONGRESS AND RESPECT FOR THE LAW, THE WORDS
PUT INTO THE CONSTITUTION ITSELF. THAT IS PART OF BEING A
GOOD JUDGE. THAT IS PART OF BEING INDEPENDENT. BEING A GOOD
JUDGE THERE ARE HUMAN QUALITIES IN TERMS OF INTERACTION.
ALTHOUGH THESE CONFIRMATION PROCESSES FOCUS ON ONE PERSON,
AS IF YOU ARE MAKING ALL THE DECISIONS AS I SAID YESTERDAY
I’M JOINING THE TEAM OF NINE IF I’M FORTUNATE ENOUGH TO BE CAN
FIRM. — CONFIRMED. DO NOT MAKE DECISIONS BY MYSELF.
FOR THE LAST 12 YEARS I HAVE NOT MADE DECISION BY MYSELF. EVERY
CASE HAS BEEN ON A PANEL OF AT LEAST THREE JUDGES. YOU LEARN
FROM EACH OTHER. YOU WORK WITH EACH OTHER. HAVING STABILITY AS JUSTICE KENNEDY SHOWS US
REPEATEDLY WITH HOW HE CONDUCTED HIMSELF OVER THE YEARS. THAT IS
VERY IMPORTANT. THESE ARE THE GREAT MOMENTS I WAS TALKING
ABOUT. LIKE UNITED STATES VERSUS NIXON.
THE COURT CAME TOGETHER IN UNANIMOUS DECISION. THE
UNANIMITY OF THE DECISIONS. THAT IS PERSONAL INTERACTION. I’VE
TRIED TO BE A COLLEGIAL JUDGE. I TRIED TO BE CIVIL. I WANT MR.
CHAIRMAN OF THE LOSING PARTY IN EVERY CASE TO COME OUT AND STAY,
KAVANAUGH GAVE ME A FAIR SHAKE. HE WAS WELL PREPARED WROTE A
CLEAR OPINION. EXPLAINED EVERYTHING. I DISAGREE. AT LEAST
I UNDERSTAND IT. I WANT BOTH PARTIES TO WALK OUT AND SAY HE GAVE ME A FAIR SHAKE.
I THINK I’VE DONE THAT FOR 12 YEARS. I TRIED TO DO THAT
CONSISTENTLY. EVERYTHING YOU DO AS A JUDGE, MATTERS IN TERMS OF
BEING A GOOD JUDGE. THOSE ARE THE QUALITIES THE LAST THING I
ALWAYS REMEMBER ABOUT IT, THE THING I SAID MY MOM TOLD ME,
JUDGING IS NOT JUST ABOUT THEORY. IT IS NOT.. IT IS NOT
JUST WHAT A LAW REVIEW ARTICLE IS. JUDGING IS REAL PEOPLE IN
THE REAL WORLD IN EVERY DECISION WE MAKE. NO MATTER HOW
HIGH-MINDED IT MIGHT SOUND, IT AFFECTS REAL PEOPLE IN THE REAL
WORLD WITH REAL INTEREST. WE HAVE TO REMEMBER THAT.
>>THANK YOU, MR. CHAIRMAN. >>FOLLOWING UP ON THE WISE
WORDS FROM YESTERDAY ON SEPARATION OF POWERS, YOUR
RECORD BEFORE THE SENATE INCLUDES MORE THAN 10,000 PAGES
OF JUDICIAL WRITINGS. WE HAVE OVER 440,000 PAGES OF
EMAILS AND OTHER RECORDS FROM YOUR LEGAL SERVICE AT THE WHITE
HOUSE AND JUDGE STARR. YOU HAD WRITTEN EXTENSIVELY ON THE ISSUE
OF THE CONSTITUTION SEPARATION OF POWER AMONG THE THREE
BRANCHES. THE KEY COMPONENT OF THE SEPARATION OF POWERS IS THE
INDEPENDENT JUDICIARY. OBVIOUSLY, EVERYBODY LEARNS THAT
IN EIGHTH GRADE CIVICS ABOUT JUDGES INTERPRETING LAW. THE
JUDICIARY MUST CONTINUE TO BE THE LEAST POLITICAL AND AT LEAST
DANGEROUS BRANCH. THE SOLE JOB OF A JUDGE IS TO APPLY THE LAW
EVENLY AND FAIRLY WITHOUT REGARD TO THE PRESIDENT WHO NOMINATED
HIM. THE POLITICAL CONSEQUENCES OF HIS JUDICIAL DECISION, SO
JUDGE LET’S DISCUSS INDEPENDENCE. NOT EVEN THE PRESIDENT IS ABOVE
THE LAW. SOME OF MY COLLEAGUES HAVE CRITICIZED YOUR VIEWS OF
PRESIDENTIAL AUTHORITY SUGGESTING WRONGLY MY OPINION,
THAT YOUR VIEWS OF PRESIDENTIAL AUTHORITY WOULD NOT ALLOW ANY
MEANINGFUL CHECK ON THE PRESIDENT PARTICULARLY THIS ONE . PLEASE TELL US WHAT JUDICIAL
INDEPENDENCE MEANS TO YOU INCLUDING, WHERE THE HAVE ANY
TROUBLE RULING AGAINST THE PRESIDENT WHO APPOINTED YOU AND
AGAINST THE EXECUTIVE BRANCH IN ANY CASE BEFORE YOU. HE TALKED
ABOUT INDEPENDENCE BUT, APPLY IT SPECIFICALLY TO RULING AGAINST
THE PRESIDENT OR THE EXECUTIVE BRANCH.
>>YOU ARE CORRECT. NOBODY IS ABOVE
THE LAW IN OUR SYSTEM. HAMILTON MAKES CLEAR ALL THE
WAYS THE EXECUTIVE BRANCH IS DESIGNED BY THE FRAMERS OF THE
CONSTITUTION IT WAS DIFFERENT FROM THE MONARCHY. UNDER OUR
SYSTEM OF GOVERNMENT, THE EXECUTIVE BRANCH IS SUBJECT TO
THE LAW SUBJECT TO THE COURT SYSTEM, THAT IS AN IMPORTANT
PART OF THE CONSTITUTIONAL STRUCTURE. IN GENERAL, SO TO
JUDGES ARE SEPARATE FROM THE CONGRESS. WHERE NOT SUPPOSED TO
BE INFLUENCED BY POLITICAL PRESSURE FROM THE EXECUTIVE OR
THE CONGRESS. WE ARE INDEPENDENT . WILL MAKE DECISIONS BASED ON
LAW, NOT BASED ON POLICY OR POLITICAL PRESSURE NOT BASED ON
THE IDENTITY OF THE PARTIES NO MATTER WHO YOU ARE. NO MATTER
WHERE YOU COME FROM AND NO MATTER HOW RICH YOU ARE. NO
MATTER YOUR RACE, GENDER OR YEARS — YOUR STATION IN LIFE. I GO BACK TO THE GREAT MOMENTS
IN HISTORY WHERE THESE PRINCIPLES WOULD SOUND ABSTRACT
AS YOU DESCRIBE THEM. GO BACK TO YOUNGSTOWN STEEL. YOU THINK
ABOUT A 63 DECISION WHERE THE SUPREME COURT RULES THAT
PRESIDENT TRUMAN HAS VIOLATED THE LAW BY SEIZING THE STEEL
MILLS. THIS IS A TIME OF WAR. THE TIME OF WAR WHERE LOTS OF
AMERICANS WERE KILLED. THE SUPREME COURT IS UNDER
PRESSURE TO DEFER TO THE PRESIDENTS WAR EFFORT. AND A 6-3
DECISION BUT WHAT IS INTERESTING TO ME JUSTICE CLARK. WE DO NOT
USUALLY TALK ABOUT HIM. HE WAS APPOINTED BY PRESIDENT TRUMAN TO
THE SUPREME COURT. WHAT A MOMENT OF JUDICIAL INDEPENDENCE. HE
WORLD. YOU THINK ABOUT JUSTICE JACKSON WHO HAD BEEN WORKING FOR
PRESIDENT ROOSEVELT. HE STOOD UP AND SAID, THIS IS LIKE LEAVING A LOADED
WEAPON LIE AROUND. ROOSEVELT’S DECISION. JUSTICE JACKSON, JUSTICE JACKSON’S CONCURRENCE
YOUNGSTOWN BECAME THAT CATEGORY ONE, CATEGORY TWO, CATEGORY
THREE HE WRITES THAT CONCURRENCE HE HAD TAKEN POSITIONS CONTRARY
TO THAT WHEN HE WORKED IN THE EXECUTIVE BRANCH OF THE
ROOSEVELT ADMINISTRATION. HE SEES IT DIFFERENTLY AS AN
INDEPENDENT JUDGE FOR HOW ABOUT CHIEF JUSTICE BURGER IN THE
UNITED STATES VERSUS NIXON? HE WRITES THE OPINION, UNANIMOUS
MOMENTS OF JUDICIAL INDEPENDENCE. IT IS RESISTING
PUBLIC PRESSURE, POLITICAL PRESSURE IT IS TREATING EVERYBODY EQUALLY
NO MATTER WHERE YOU ARE. WHAT STATION. WHEN I WAS A JUDGE ON
THE DC CIRCUIT I HAD A CASE. IN THE CASE OF BIN LADEN’S ASSOCIATE YOU WILL
NEVER HAVE A NOMINEE , SHALL I PROCEED?
>>THIS IS COMING OUT OF MY TIME BUT THAT’S OKAY LET THESE PEOPLE
HAVE THEIR FREE SPEECH AND INTERRUPT THE OTHER 300 MILLION
PEOPLE THIS IS YOUR OPPORTUNITY TO
SPEAK TO THE AMERICAN PEOPLE. IF THEY WANT TO AFFECT WITH THE
OTHER 300 MILLION PEOPLE HERE FROM YOU, THAT IS JUST TOO BAD.
LET’S PROCEED. HERE’S ONE OF BIN LADEN’S
ASSOCIATE. THE WORST ATTACK EVER ON AMERICAN SOIL. HE IS
PROSECUTED BEFORE MILITARY COMMISSION. PROSECUTION COMES TO
THE DC CIRCUIT. I AM ON THE PANEL. I
WROTE THE OPINION THAT SAYS HIS MILITARY COMMISSION PROSECUTION
IS UNCONSTITUTIONAL. IT VIOLATES PRINCIPLES. YOU WILL NEVER HAVE
A NOMINEE WHO HAS RULED FOR A MORE POPULAR DEFENDER. A RULING
FOR HIM AND WHY DID I DO THAT WHY DID I RULE FOR SOMEBODY WHO
HAD BEEN INVOLVED IN LESS SEPTEMBER 11? THE LAW COMPELLED
IT. TEXAS VERSUS JOHNSON WE DO NOT MAKE DECISIONS BASED ON WHO
PEOPLE ARE OR POLICY PREFERENCES. WE BASE DECISIONS
ON LAW. THE JUSTICE KENNEDY’S EXAMPLE OF THAT IS SOMETHING I
TRIED TO FOLLOW. YOU ARE NOT A PRO-PLAINTIFF OR PRO-DEFENSE
JUDGE OR PROBE PROSECUTION OR PRO DEFENSE JUDGE. I AM APRIL
LAW JUDGE. I HAVE RULED FOR PARTIES BASED ON WHETHER THEY HAVE THE LAW ON
THEIR SIDE. THAT’S PART OF BEING AN INDEPENDENT JUDGE FOR THIS
RULING FOR THE PARTY NO MATTER WHO THEY ARE, AS LONG AS THE
PARTY IS RIGHT. WHEN YOU WALK IN MY COURTROOM AND HAVE A BETTER
LEGAL ARGUMENT, YOU WILL WIN.>>I THINK YOU ANSWERED MY NEXT
QUESTION BASED UPON WHAT YOU SAID ABOUT THAT. IS PROBABLY OTHER EXAMPLES YOU
DO NOT NEED TO GO INTO BUT YOU HAVE, TREND EIGHT — PRESIDENT BUSH APPOINTED YOU. THERE HAS BEEN OTHER CASES WHERE
YOU RULED AGAINST ADMINISTRATION OF THE PERSON THAT APPOINTED
YOU. ABSOLUTELY. >>THERE WERE A SLEW OF CASES.
THAT IS THE ONE THAT COMES TO MIND MOST BECAUSE OF THE
IMPORTANCE OF THAT CASE. RULED WAS UNLAWFUL. THE MAXIMUM THAT ANYBODY ASKING
MAKE ANY PROMISES OR ASSURANCES ABOUT THE WAY THAT YOU WOULD
RULE IN CERTAIN CASES >>NO. WERE YOU ASKED ABOUT YOUR
VIEWS ON ROE VERSUS WADE >>[ SHOUTING ]. WE ARE TALKING ABOUT SEPARATION
OF POWERS. HAVE YOU EVER WRITTEN ANY DECISIONS WHERE YOU USED THE
10th AMENDMENT AND I AM TALKING ABOUT DIVISION OF POWERS BETWEEN
STATE. >>MOST THAT COME OUR ON THE
NATIONAL LEVEL AND THEREFORE INVOLVING SEPARATION OF POWERS
BETWEEN ALLEGED TRADITIONAL BRANCHES. FEDERALISM IS A
CRITICAL PART OF THE CONSTITUTIONAL STRUCTURE AS
WELL. THE GENIUS OF OUR SYSTEM FEDERAL 39 AS DESCRIBED BY
MADISON’S THAT HAVE BOTH A NATIONAL GOVERNMENT AND A
FEDERAL GOVERNMENT SIMULTANEOUSLY. THE HOUSE OF REPRESENTATIVES
REALLY REPRESENTS IN SOME WAYS, THE NATIONAL PARK PROPORTIONAL
REPRESENTATION. THIS BODY WITH TWO SENATORS FROM EACH STATE
REPRESENTS THE FEDERAL PART. EACH PART IS REPRESENTED
EQUALLY. THE FEDERALISM SYSTEM BY WHICH THE STATES ARE ALLOWED
TO REGULATE LOCAL MATTERS, CASES SUCH AS THE UNITED STATES VERSUS
LOPEZ AND THE UNITED STATES VERSUS MORRISON. WE ENFORCE THE
IDEA THERE IS A CORE OF AUTHORITY THAT IS EXCLUSIVELY IN
THE PROVINCE OF THE STATES AND BEYOND THE SCOPE OF THE
REPRESENTATIVE PRESENTED OF. — REPRESENTATIVE.
>>[ SHOUTING ]
>>THE CONSTITUTIONAL SYSTEMS IT IS
IMPORTANT TO RECOGNIZE AS INDIVIDUALS, SOMETHING WE FORGET
PARTICULARLY IN A PROCESS LIKE THIS. OUR RIGHTS ARE PROTECTED
BY THE FEDERAL CONSTITUTION, AND BY THE FEDERAL COURTS, BUT THERE
ARE ALSO PROTECTED BY STATE CONSTITUTIONS AND STATE COURTS.
JEFF SUTTON HAS WRITTEN A NEW BOOK ABOUT USING STATE
CONSTITUTION TO HELP PROTECT YOUR INDIVIDUAL LIBERTIES AND RIGHTS.
THIS WHOLE DOCUMENT THROUGH THE SEPARATION OF POWERS AND
FEDERALISM, TILTS TOWARD LIBERTY.
>>[ SHOUTING ] >>WE TALKED ABOUT YOUR
DEPENDENTS FROM THE PRESIDENT. THERE’S ALSO INDEPENDENCE FROM THE LEGISLATIVE BRANCH.
THAT IS ALSO IMPORTANT. >>YOU WILL BE ASKED ABOUT YOUR
PERSONAL VIEWS ON A VARIETY OF TOPICS. DO YOU BELIEVE COURSES
WERE DECIDED? SENATORS ARE GOING TO PREDICT
HOW YOU WILL RULE IN CASE IT BEFORE YOU. THE IDEA IS IF YOU
AGREE WITH YOUR PERSONAL VIEWS IF THEY AGREE WITH YOU ON YOUR
VIEWS ON MORALITY ARE — OR IF THEY WOULD AGREE.
THEY SHOULD NEVER PROMISE THEIR FUTURE VOTES IN EXCHANGE FOR A
VOTE BEFORE THEM. IF YOU ANSWER THESE QUESTIONS ABOUT YOUR VIEWS
ON SPECIFIC CASES OR CONTROVERSIES, YOU WILL BE
SHOWING THE OPPOSITE OF INDEPENDENCE FROM THE
LEGISLATIVE BRANCH, POLITICIANS CAN MAKE PROMISES ABOUT HOW THEY
WILL VOTE ON ISSUES. JUDGES BY THEIR NATURE OF THE JOB SHOULD
NEVER PROMISE ANY OUTCOMES. IF A NOMINEE’S ANSWERS THREATENS THE
UNDERLYING JUDICIAL INDEPENDENCE. OF COURSE THERE
MAY BE TIMES WHICH WE SHOULD CONSIDER CERTAIN
DECISIONS, ESPECIALLY OF MORE RECENT OPINIONS HAVE CALLED INTO
QUESTION THE RATIONALE OF THE ORIGINAL DECISIONS.
>>SO, WITH THIS IN MIND, I WOULD LIKE TO EXPLORE THE
APPROACH THAT YOU TAKE TOWARDS SUPREME COURT PRECEDENTS. COULD
YOU TELL US YOUR VIEWS ON THE VALUE OF PRECEDENT I THINK YOU
ALREADY DONE THAT. IF YOU WANT TO EXPAND ON THAT GO AHEAD. HAVE
YOU EVER FOLLOWED THE PRECEDENT OF THE SUPREME COURT WHEN DOING
SO, CONFLICTED WITH YOUR PERSONAL BELIEFS?
>>MY PERSONAL BELIEFS ARE NOT RELEVANT TO HOW I DECIDE CASES.
THE ROLE OF PRECEDENT IN OUR SYSTEM WHICH IS ROOTED IN ARTICLE NUMBER THREE. IT IS
NOT JUST A POLICY IT ENSURES STABILITY IN THE LAW. THAT IS
CRITICALLY IMPORTANT. IS TO ENSURE PREDICTABILITY OF
THE LAW. PEOPLE WHO ORDER THEIR AFFAIRS AROUND
DECISIONS NEED TO KNOW THE LAW IS PREDICTABLE. WHETHER YOU ARE
AN INDIVIDUAL OR BUSINESS OR WORKER, YOU NEED TO HAVE
PREDICTABILITY. PEOPLE WILL LIE ON THOSE DECISIONS OF THE
COURTS. RELIANCE INTERESTS ARE CRITICALLY
IMPORTANT TO CONSIDER AS A MATTER OF PRECEDENT. THAT’S WHY
WE HAVE ONE OF THOSE. PRECEDENT IT REINFORCES THE
IMPARTIALITY OF THE ADJACENT THAT — JUDICIARY. JUDGES ARE
INDEPENDENT WE ARE NOT MAKING DECISIONS BASED ON POLICY VIEWS.
PART OF THAT IS TO UNDERSTAND WE ARE FOLLOWING THE SYSTEM A
PRESIDENT. WHAT HAS BEEN DONE BEFORE. IF THE COURT, EVERY TIME
SOMEBODY GETS ON IS NOT JUST BOUNCING AROUND TO WHAT DO I
THINK IS BEST? IT IS WHAT IS THE PRECEDENT OF THE SUPREME COURT?
IT IS PART OF THE ANALYSIS. FOR 12 YEARS, I HAVE BEEN APPLYING
PRECEDENT OF THE SUPREME COURT AND OF MY CORPORATE EVERY DAY
FOR 12 YEARS, HOW CAN I REWRITE THE LAW? I’VE BEEN GETTING UP
SAYING OKAY HOW CAN I APPLY THIS AMENDMENT TO THIS FACT PATTERN
THAT COMES BEFORE ME? PRECEDENT IS THE FOUNDATION OF OUR SYSTEM
AND AS PART OF THE STABILITY, IT IS ENSURING PREDICTABILITY AND
IT IS FOUNDATIONAL TO THE CONSTITUTIONAL IS ARTICLE NUMBER
THREE MAKE CLEAR. >>[ SHOUTING ]
>>YOU WILL BE ASKED BY WHAT SUPREME COURT PRECEDENT YOU LIKE
AND DO NOT LIKE. IT IS INAPPROPRIATE FOR YOU TO ANSWER
THOSE QUESTIONS. THIS REFERS TO JUDGE GINSBERG. SHE SAID QUOTE,
A JUDGE SWORN TO DECIDE IMPARTIALITY CAN AT — OFFER NO HINTS THAT WAS
SHOWN NOT ONLY DISREGARD FOR THE SPECIFICS OF A PARTICULAR CASE,
IT WOULD DISPLAY DISDAIN FOR THE ENTIRE JUDICIAL PROCESS.”. THE
UNDERLYING REASON IS THAT MAKING PROMISES OR GIVING HINTS
UNDERMINES THE INDEPENDENCE THAT WE DISCUSSED. WOULD YOU AGREE?
>>I DO, SENATOR. MR. CHAIRMAN. ONE OF THE THINGS THAT I HAVE TO
REMEMBER, IS THAT THIS MOMENT IS A MOMENT OF JUDICIAL
INDEPENDENCE. WHAT I HAVE DONE AS A JUDGE OVER
THE LAST 12 YEARS, I ALWAYS ASK MYSELF, HOW HAS IT BEEN DONE
BEFORE? HOW HAS IT BEEN DONE BEFORE? PRECEDENT. WHEN I SIT
HERE, I WENT AND STUDIED THE NOMINEE PRECEDENT. I READ
VARIOUS HEARINGS. NOMINEE PRECEDENT ALL THE NOMINEES CURRENTLY
SITTING ON THE SUPREME COURT AND ALL THE JUSTICES HAVE MADE CLEAR
COUPLE OF THINGS. FIRST OF ALL, THEY CANNOT DISCUSS CASES OR
ISSUES THAT MIGHT COME BEFORE THEM. AS GINSBERG SAID, NO
FORECASTING, NO PREVIEWS. THAT MEANS WITH RESPECT TO THE VAST
BODY OF SUPREME COURT PRESIDENT GOING BACK, CANNOT GIVE A THUMBS
UP OR DOWN ON THE CASE. THAT IS JUSTICE KAGAN’S FORMULATION. SHE
SAID REPEATEDLY, NO THUMBS-UP OR THUMBS DOWN SHE SAID SHE COULD
NOT ANSWER. I LIKE HER FORMULATION. THAT NOMINEE
PRESIDENT — PRECEDENT IS SOMETHING I NEED TO ADHERE TO
WHEN I AM HERE AS A NOMINEE NOW, THAT IS ONE OF MY JOBS HERE. I AM NOT HERE TO ADVANCE MY OWN
INTEREST. I HAVE A RESPONSIBILITY TO JUDICIAL INDEPENDENCE RIGHT
HERE, RIGHT NOW AS A NOMINEE. FOLLOWING THAT PRECEDENT IS
GOING TO BE CRITICAL. THERE IS AN EXCEPTION THAT THE EIGHT JUSTICES HAVE
DRAWN FOR SOME OLDER CASES. I WILL BE HAPPY TO USE SOME OLDER
CASES WHERE NOMINEE PRECEDENT HAS ALLOWED THEM TO TALK ABOUT A
FEW OLDER CASES. WHY DO WE DO THIS? WHY IS THIS NOMINEE
PRECEDENT THERE? THEY HAVE WIDELY RANGING VIEWS. THERE MUST
BE A REASON. THE REASON IS JUDICIAL INDEPENDENCE. WHAT DOES
THAT MEAN? THE LITIGANTS WHO COME BEFORE US, HAVE TO KNOW WE
HAVE AN OPEN MIND AND WE DO NOT HAVE A CLOSE MINE. REFILL BOUND BY WHAT WE PROMISE
TO THE COMMITTEE. BELIEVE ME, JUDGES DO FEEL BOUND BY WHAT
THEY SAID TO THE COMMITTEE. IF I SAY SOMETHING AND THE CASE COMES
BEFORE ME FIVE YEARS FROM NOW, I’M GOING TO FILL MORALLY BOUND
BY WHAT IS THAT HERE. IF I CROSS THE LINE, FROM WHAT I SHOULD
SAY, THAT I WILL NOT HAVE AN OPEN MIND THAT CASE. THAT IS A
VIOLATION OF JUDICIAL INDEPENDENCE. SECONDLY, AS CHIEF
JUSTICE ROBERTS DESCRIBED BETTER THAN ANYONE. IF I GET INTO WHAT
APPEARS TO BE A BARGAINING PROCESS I WILL AGREE WITH THIS
DECISION IN EXCHANGE FOR YOUR VOTE, AS CHIEF JUSTICE ROBERTS
DESCRIBED IT, THAT IS WHAT SEEMS TO BE GOING
ON SOMETIMES, THAT IS A COMPLETE VIOLATION OF INDEPENDENCE. THE
JUDGES ARE NOT MAKING THE DECISIONS, IT IS THE SENATE OR
SENATE JUDICIARY COMMITTEE EXTENDING THE NOMINEE AS A
DELEGATE TO THE JUDICIARY AND DOING WHAT THE SENATE JUDICIARY
COMMITTEE THINKS IS THE RIGHT THING TO DO. CHIEF JUSTICE ROBERTS EXPLAINED.
FORCEFULLY THAT WOULD BE A VIOLATION OF JUDICIAL
INDEPENDENCE. THAT NOMINEE PRECEDENT WEIGHS HEAVILY ON ME
AS A NOMINEE HERE. IT IS ROOTED IN JUDICIAL INDEPENDENCE. I SAID
THAT REPEATEDLY ALREADY. I’M GOING TO BE AN INDEPENDENT
JUDGE. I HAVE TO BE AN INDEPENDENT NOMINEE AS WELL.
>>WITH ONLY 25 SECONDS LEFT, I’M GOING TO RESERVE THAT TIME
AND GO TO SENATOR FEINSTEIN. >>THANK YOU VERY MUCH. MR.
CHAIRMAN, GOOD MORNING JUDGE. >>AM SORRY ABOUT THE
CIRCUMSTANCES. WE WILL GET THROUGH IT. I WANTED TO TALK TO
THIS MORNING ABOUT GUNS. I WANT TO GO BACK TO ROE VERSUS WADE OF
I MIGHT. MY OFFICE WROTE THE ASSAULT WEAPON LEGISLATION. WAS
FROM 94 TO 2004. ESSENTIALLY IT PROHIBITED TRANSFER, SALE AND MANUFACTURER
OF ASSAULT WEAPONS. I HAPPEN TO BELIEVE THAT IT DID
WORK. IT WAS IMPORTANT. I HAVE WATCHED CASE AFTER CASE AND I
THINK I MENTIONED EARLIER, SCHOOL SHOOTINGS, AND I NEVER THOUGHT THIS WOULD
HAPPEN IN OUR COUNTRY. I NEVER THOUGHT SOMEBODY WOULD BRING A
SEMI AUTOMATIC ASSAULT WEAPON INTO A SCHOOL AND KILL CHILDREN.
I HAVE BEEN VERY INTERESTED IN YOUR THINKING ON ASSAULT WEAPONS
. YOU SPECIFICALLY ARGUED, THAT THE ASSAULT WEAPONS BAN WAS
UNCONSTITUTIONAL. I THINK BECAUSE YOU SAID THESE WEAPONS
WERE IN COMMON USE. WHAT DID YOU BASE YOUR CONCLUSION THAT
ASSAULT WEAPONS ARE IN COMMON USE. WHAT EVIDENCE OR STEADY DID
YOU USE TO DO THAT? >>THANK YOU, SENATOR FEINSTEIN
FOR THE QUESTION. I UNDERSTAND OF COURSE, YOUR ROLE ON THAT
ISSUE AND YOUR LONG LEADERSHIP ON THAT ISSUE. I APPRECIATE THAT
. I FACED A DECISION WHERE AS IN EVERY OTHER DECISION JUST ABOUT
ON THE CIRCUIT I HAD TO FOLLOW PRECEDENT I DO NOT GET TO PICK
AND CHOOSE WHICH SUPREME COURT PRECEDENT I GET TO FOLLOW.
FOLLOW THEM ALL. WHEN THE SECOND AMENDMENT CONTACTS THE HELLER DECISION
WRITTEN BY JUSTICE SCALIA HAD HELD THERE WAS AN INDIVIDUAL
RIGHT TO KEEP AND BEAR ARMS. THEN IN EXPLAINING WHAT THAT
MEANT AND WHAT EXCEPTIONS WOULD BE ALLOWED TO THEIR RIGHT,
JUSTICE SCALIA’S OPINION FOR THE COURT AND PART THREE OF THE
OPINION, WENT THROUGH THIS DOES NOT MEAN THERE IS NO GUN REGULATION
PERMISSIBLE. THAT WAS AN IMPORTANT PART OF THE OPINION
PART THREE OF THE SUPREME COURT’S OPINION. WHERE
PRE-IDENTIFIED A NUMBER OF EXCEPTIONS THAT WOULD BE ALLOWED
FELL IN POSITION LAWS, CONCEALED CARRY AND POSSESSION OF GUNS IN
SCHOOLS, POSSESSION OF CERTAIN KINDS OF BUILDINGS BE
PRE-IDENTIFIED. AS TO THE WEAPONS, THE WAY I UNDERSTOOD
WHAT HE SAID, WHAT WAS SAID IN THE McDONALD’S CASE LATER, WAS
THAT DANGEROUS AND UNUSUAL WEAPONS COULD BE PROHIBITED.
WHAT HE REFERRED TO SPECIFICALLY AS MACHINE GUNS COULD BE
PROHIBITED. IT IS IMPORTANT TO RECOGNIZE UNDER THE HELLER
DECISION, MACHINE GUNS CAN BE PROHIBITED.
>>THEY WERE IN FIREARMS ACT ALONG TIME AGO.
>>THEY HAVE BEEN PROHIBITED. >>YES, SCALIA’S OPINION DID NOT
DISTURB THAT LONG-STANDING REGULATION. SPECIFICALLY THEY
REAFFIRMED THAT MACHINE GUNS COULD BE PROHIBITED. THE COURT
AND HELLER, THE SUPREME COURT UPHELD STRUCK DOWN A BAN ON
HANDGUN MOST OF WHICH ARE SEMI AUTOMATIC
>>LET ME INTERRUPT YOU BECAUSE I THINK WE AREN’T TOTALLY
DIFFERENT WAVELENGTHS. I’M TALKING ABOUT YOUR STATEMENT ON
COMMON USE. AS COMMON USE BEING A JUSTIFICATION AND ASSAULT
WEAPONS ARE NOT IN COMMON USE. >>IN SCALIA HE USED THAT PHRASE
I THINK THE NEXT SENTENCE TALKS ABOUT DANGERS AND UNUSUAL
WEAPONS. THE COURT IN TELLER ITSELF THE SUPREME COURT STRUCK
DOWN A DC BAN ON HANDGUNS. MOST HANDGUNS ARE SEMI AUTOMATIC.
THAT SOMETHING THAT NOT EVERYBODY APPRECIATES. MOST
HANDGUNS ARE SEMI AUTOMATIC THE QUESTION CAME BEFORE US, THE
SEMIAUTOMATIC RIFLE THE QUESTION WAS CAN YOU DISTINGUISH AS A
MATTER OF PRECEDENT AGAIN THIS IS ALL ABOUT PRECEDENT FOR ME, I’M TRYING TO
READ EXACTLY WHAT THE SUPREME COURT SAID IF YOU READ THE
McDONNELL CASE, I CONCLUDED THAT IT COULD NOT BE DISTINGUISHED AS
A MATTER OF LAW, SEMIAUTOMATIC HANDGUNS AND SEMIAUTOMATIC
RIFLES ARE WIDELY POSSESSED IN THE UNITED STATES. THERE ARE
MILLIONS AND MILLIONS AND MILLIONS OF SEMIAUTOMATIC RIFLES
THAT ARE POSSESSED. THAT SEEMED TO FIT COMMON USE AND NOT BEING
A DANGEROUS AND UNUSUAL WEAPON. >>THAT WAS THE BASIS. THE BASIS
WAS I WAS TRYING TO FOLLOW STRICTLY AND CAREFULLY THE
SUPREME COURT PRECEDENT. BEEN YOU ARE SAYING THE NUMBERS
DETERMINE COMMON USE? COMMON USE IS AN ACTIVITY. IT IS NOT COMMON
STORAGE OF POSSESSION, IT IS USE. WHAT YOU SAID WAS THAT
THESE WEAPONS ARE COMMONLY USED. THEY ARE NOT. THEY ARE WIDELY POSSESSED IN THE
UNITED STATES, SENATOR. THEY ARE USED AND POSSESSED. THE QUESTION
IS ARE THEY DANGEROUS AND UNUSUAL. THEY ARE CERTAINLY
DANGEROUS. ALL WEAPONS ARE DANGEROUS. ARE THEY UNUSUAL?
GIVEN HARB — HOW PREVALENT THEY ARE, THE SAME THING I WANT
TO REITERATE, IT IS IMPORTANT TO MAKE CLEAR MACHINE GUNS CAN BE
BAND. >>LET ME SPEAK. I’M TALKING
ABOUT THE HELLER CASE. LET ME BE SPECIFIC. YOU SPECIFICALLY
ARGUED, THAT WAS UNCONSTITUTIONAL TO DEFEND
ASSAULT WEAPONS BECAUSE THEY ARE TOO BAD ASSAULT WEAPONS BECAUSE
THEY ARE IN COMMON USE. THAT I BELIEVE WAS YOUR DISSENT IN THE
CASE. >>I WAS REFERRING TO SOME KINDS
OF SEMIAUTOMATIC RIFLES. THEY ARE BANNED BY DC THEY ARE WIDELY
OWNED IN THE UNITED STATES. THAT WOULD SEEM TO BE THE TASK THAT
THE SUPREME COURT HAD SET FORTH IN THE HELLER McDONNELL CASES.
IN OTHER WORDS, IF A TYPE OF FIREARM IS WIDELY OWNED AND THE
UNITED STATES WHETHER I AGREE OR NOT, THAT WAS
NOT THE ISSUE BEFORE ME. I HAVE TO FOLLOW THE PRECEDENT AND
SUPREME COURT AS IT IS WRITTEN. THAT IS WHAT I TRY TO DO. IT WAS
A LONG OPINION. I ALSO MADE CLEAR, SENATOR FEINSTEIN AT THE
END OF THE OPINION, I AM A NATIVE OF THIS AREA. I’M A
NATIVE OF AN URBAN SUBURBAN AREA. I GREW
UP IN THE CITY PLAGUED BY GUN VIOLENCE AND GANG VIOLENCE AND
DRUG VIOLENCE I UNDERSTAND THE IMPORTANCE OF
THIS ISSUE. ARE SPECIFICALLY REFERENCED THAT POLICE CHIEF CATHY LANIER’S GOALS OF REDUCING
GANG AND GUN VIOLENCE. IT IS SOMETHING I CERTAINLY APPLAUD. I
HAD TO FOLLOW THE PRECEDENT OF THE SUPREME COURT IN THAT CASE.
AS I READ IT, THAT IS WHAT IT SAID POINT HOW DO YOU RECONCILE
WHAT YOU HAVE JUST SAID WITH THE HUNDREDS OF SCHOOL SHOOTINGS,
USING ASSAULT WEAPONS THAT HAVE TAKEN PLACE IN RECENT HISTORY?
HOW DO YOU RECONCILE THAT? >>OF COURSE THE VIOLENCE IN THE
SCHOOL SAID SOMETHING WE ALL DETEST. WE WANT TO DO SOMETHING
UP ABOUT IT. LOTS OF EFFORTS ARE UNDERWAY TO MAKE SCHOOLS SAFER. AND MY GIRLS SCHOOLS THEY DO
THINGS NOW DIFFERENTLY THAN THEY DID A FEW YEARS AGO, IN TERMS OF
TRYING TO HARDEN THE SCHOOL AND MAKE IT SAFER FOR EVERYBODY.
HANDGUNS AND SEMIAUTOMATIC RIFLES ARE WEAPONS USED FOR
HUNTING AND SELF-DEFENSE. AS YOU SAY SENATOR, THEY ARE USED IN A
LOT OF VIOLENT CRIMES AND CAUSE A LOT OF DEATH. HANDGUNS ARE
USED IN LOTS OF CRIMES THAT RESULT IN DEATH. SO ARE SEMI AUTOMATIC RIFLES.
THAT IS WHAT MAKES THIS ISSUE DIFFICULT. AS I SAID IN THE LAST
TWO PAGES I FULLY UNDERSTAND THE GANG VIOLENCE, AND DRUG
VIOLENCE, THIS IS KNOWN AS THE MURDER
CAPITAL OF THE WORLD. FOR WHILE THIS CITY AND THAT WAS HANDGUN
VIOLENCE. I UNDERSTAND THE ISSUE. AS A
JUDGE, MY JOB AS I SAW IT, WAS TO FOLLOW THE SECOND AMENDMENT
OPINION OF THE SUPREME COURT. WHETHER I AGREE OR DISAGREE, AT
THE END OF THE OPINION, I CITED JUSTICE KENNEDY’S QUOTE WHICH I
READ YESTERDAY. IT WAS THE GUIDING LIGHT FOR THE JUDGES.
LET ME GIVE YOU A COUPLE OF OTHER QUOTES AND
THEN I’M GOING TO CHANGE THE SUBJECT OR DO YOU AGREE WITH
JUSTICE O’CONNOR, THAT A WOMAN’S RIGHT TO CONTROL HER
REPRODUCTIVE LIFE IMPACTS HER ABILITY TO QUOTE PARTICIPATE
EQUALLY IN THE ECONOMIC AND SOCIAL LIFE OF THE NATION”? AS A
GENERAL PROPOSITION, I UNDERSTAND THE IMPORTANCE OF THE
PRESIDENT — PRECEDENT SET FORTH IN ROW VERSUS WADE. IT
HELD AND REAFFIRMED IN PLANNED PARENTHOOD THAT A WOMAN HAS A
CONSTITUTIONAL RIGHT TO OBTAIN AN ABORTION BEFORE VIABILITY
SUBJECT TO REASONABLE REGULATION BY THE STATE UP TO THE POINT
WHERE THAT REGULATION CONSTITUTES AN UNDUE BURDEN ON
THE WOMAN’S RIGHT TO OBTAIN AN ABORTION. ONE OF THE REASON FOR THAT
HOLDING IS EXPLAINED BY THE COURT IS ALONG THE LINES OF WHAT
YOU SAID, ABOUT THE QUOTE FROM JUSTICE O’CONNOR. THAT IS ONE OF
THE RATIONALES THAT UNDERGIRDS ROE VERSUS WADE.
>>IN THE 1950s AND LATE 60s THE
DECADES BEFORE ROW, DEATHS FROM ILLEGAL ABORTIONS IN THIS
COUNTRY RAN BETWEEN 200,000 AND 1.2 MILLION. THAT IS ACCORDING
TO THE GOOD MARKER INSTITUTE. A LOT OF WOMEN DIED IN THAT
PERIOD. SO, THE QUESTION COMES, AND YOU HAVE SAID TODAY, NOT
TODAY BUT IT HAS BEEN REPORTED, THAT YOU HAVE SAID THAT ROW IS
NOT SETTLED LAW. THE FIRST QUESTION I HAVE IS WHAT DO YOU
MEAN BY SETTLED LAW? I TRIED TO ASK EARLIER AND YOU BELIEVE IT
IS CORRECT LAW. HAVE YOUR VIEWS IS IT SETTLED OR COULD BE
OVERTURNED? HAVE YOUR VIEWS CHANGED SINCE YOU WERE IN THE
BUSH WHITE HOUSE? >>SENATOR, I SAID IT IS SETTLED
AS A PRECEDENT IT ENTITLED AND ONE OF THE IMPORTANT THINGS TO
KEEP IN MIND ABOUT ROE VERSUS WADE IS THAT IT HAS BEEN
REAFFIRMED MANY TIMES OVER THE PAST 45 YEARS. MOST PROMINENTLY
AND MOST IMPORTANTLY REAFFIRMED IN PLANNED PARENTHOOD IN 1992. I
KNOW WHEN THAT CASE CAME UP THE
SUPREME COURT DID NOT JUST REAFFIRM IT IN PASSING. THE
COURT SPECIFICALLY WENT THROUGH ALL THE FACTORS IN CONSIDERING
WHETHER TO OVERRULE IT. THE JOINTS OPINION AT GREAT LENGTH
WENT THROUGH THE FACTORS. THAT WAS THE QUESTION PRESENTED IN
THE CASE. >>TONIGHT INTERRUPT YOU — CAN
I INTERRUPT YOU, THE PERSON SAYS I WILL FOLLOW AND THEY GET
CONFIRMED AND OF COURSE THEY DO NOT. I THINK KNOWING GOING INTO
IT, HOW YOU MAKE A JUDGMENT ON THESE ISSUES, IS REALLY
IMPORTANT TO OUR VOTE IS WHETHER TO SUPPORT YOU ARE NOT. BECAUSE
I DO NOT WANT TO GO BACK TO THOSE DEATH TOLLS IN THIS
COUNTRY. I TRULY BELIEVE, THAT WOMEN SHOULD BE ABLE TO CONTROL
THEIR OWN REPRODUCTIVE SYSTEMS. WITHIN OBVIOUSLY SOME CONCERN
FOR A VIABLE FETUS. >>I UNDERSTAND YOUR POINT OF
VIEW ON THAT SENATOR. I UNDERSTAND HOW PASSIONATE AND
HOW DEEPLY PEOPLE FEEL ABOUT THIS ISSUE. UNDERSTAND THE
IMPORTANCE OF THE ISSUE. UNDERSTAND THE IMPORTANCE THAT
PEOPLE ATTACH TO THE ROE VERSUS WADE DECISION AND THE PLANNED
PARENTHOOD KC DECISION. I DO NOT LIVE IN A BUBBLE. UNDERSTAND. I
LIVE IN THE REAL WORLD. UNDERSTAND THE IMPORTANCE OF THE
ISSUE. >>LET ME READ THIS NOTE. THINK
IT IS A GOOD. HAVE YOUR VIEWS ABOUT WHETHER ROW IS SETTLED
PRESIDENT — PRECEDENT CHANGED SINCE YOU WERE IN THE BUSH WHITE
HOUSE? YES OR NO. >>I’M NOT SURE WHAT IT IS
REFERRING TO ABOUT THE BUSH WHITE HOUSE BUT I WILL TELL YOU
WHAT MY VIEW RIGHT NOW IS. THIS HAS BEEN WRITTEN AND REAFFIRMED
MANY TIMES. PLANNED PARENTHOOD VERSUS CASEY REAFFIRMS ROW AND
DID SO BY CONSIDERING THE STARRY DECISIVE FACTOR. CASEY BECOMES
PRESIDENT — PRECEDENT ON PRECEDENT. IT IS NOT NOW A
RUN-OF-THE-MILL CASE THAT IS NEVER BEEN RECONSIDERED. KC
SPECIFICALLY WERE CONSIDERED IT AND APPLIED THE FACTORS AND DECIDED TO
REAFFIRM A THAT MAKES CASEY PRECEDENT ON PRECEDENT FOR
ANOTHER EXAMPLE OF THAT IS MIRANDA. SO BRANDERS REAFFIRMED
THE LOT. THEN IN THE DICKERSON CASE AND 2000, CHIEF JUSTICE
CONSIDERED IT AND REAFFIRMED MIRANDA. EVEN THOUGH CHIEF
JUSTICE BY THE WAY, HAD BEEN A FERVENT CRITIC OF MIRANDA
THROUGHOUT HIS CAREER, HE DECIDED THAT IT HAD BEEN SETTLED
TOO LONG IT HAD BEEN A PRECEDENT TOO LINE.
>> I AM SORRY TO INTERRUPT YOUR
WANT TO SWITCH SUBJECTS AND ONE LAST QUESTION. WHAT WOULD YOU
SAY YOUR POSITION TODAY IS ON A WOMAN’S RIGHT TO CHOOSE?
>>AS A JUDGE AS A JUDGE, IT IS AN IMPORTANT
PRECEDENT AS A JUDGE. IT HAS BEEN REAFFIRMED MANY TIMES.
CASEY IS PRECEDENT ON PRECEDENT WHICH IS AN IMPORTANT FACTOR TO
REMEMBER. I UNDERSTAND THE SIGNIFICANCE OF THE ISSUE. THE
JURIST POTENTIAL ISSUE AND I UNDERSTAND THE SIGNIFICANCE AS
BEST I CAN. ALWAYS TRY TO DO HERE OF THE REAL WORLD EFFECTS
OF THAT DECISION IF I TRY TO DO OF ALL THE DECISIONS OF MY COURT
AND OF THE SUPREME COURT. >>I THANK YOU FOR THAT. LET’S
GO TO PRESIDENTIAL POWER FOR MOMENT. YOU WERE PART OF CAN
STARS INDEPENDENT COUNSEL TEAM. WHICH CONDUCTED A SWEEPING
INVESTIGATION INTO POSSIBLE WRONGDOING BY PRESIDENT CLINTON
AND THE FIRST LADY. AT THE TIME, YOU ARGUED FOR AGGRESSIVE
QUESTIONING OF THE PRESIDENT. YOU DID NOT TAKE THE POSITION
THAT CLINTON WAS IMMUNE FROM INVESTIGATION. SINCE THEN, YOU
HAVE TAKEN THE OPPOSITE POSITION . IN FACT YOU HAVE SAID AND I
QUOTE, IF THE PRESIDENT WAS THE SOLE SUBJECT OF A CRIMINAL
INVESTIGATION, I WOULD SAY, NOBODY SHOULD BE INVESTIGATING
THAT AT ALL. WHAT DID YOU MEAN BY THAT? WHAT ARE THE
CIRCUMSTANCES FOR SITTING PRESIDENT TO BE SUBJECT TO A
CRIMINAL INVESTIGATION? >>I APPRECIATE THAT. I SHOULD
MENTION THAT. AND HAD BRACKETS AROUND PART OF
MY CORE. I’M NOT SURE THAT’S THE EXACT QUOTE. I WANTED TO POINT
THAT OUT POINT THEM IS THIS ACCURATE?
>>HERE IS WHAT I WAS SAYING. LET ME EXPLAIN IT. THE LAST ONE
MAY OR MAY NOT OF BEEN ACCURATE BUT WANTED TO POINT THAT OUT
FURTHER RECORD. — FOR THE RECORD.
>>I WORKED 5 1/2 YEARS IN THE WHITE HOUSE. I WILL GET
SPECIFICALLY TO YOUR QUESTION. I WORK IN THE INDEPENDENT COUNSEL
INVESTIGATION. THAT IS OBVIOUSLY DIFFICULT, CONTROVERSIAL. A
MOMENT THAT I WISH HAD NOT HAPPENED. WE ALL WISH IT HAD NOT
HAPPENED. I REFLECT ON THAT. I WROTE A LAW JOURNAL ARTICLE IN
99 REFLECTING ON SOME OF MY THOUGHTS ABOUT THAT. IT WAS A
TENNIS YOUR MIND AGO THROUGH AN EXPERIENCE AND WRITE AN ARTICLE
REFLECTING ON IT. THEN I WORKED IN THE BUSH WHITE HOUSE FOR FIVE
AND HALF YEARS. I WROTE AN ARTICLE IN MINNESOTA LAW REVIEW
IN 2009. WHEN PRESIDENT OBAMA WAS IN OFFICE I SHOULD POINT
OUT. I REFLECTED ON A NUMBER OF THINGS I LEARNED WORKING IN THE INDEPENDENT COUNSEL OFFICE AND
WHITE HOUSE. I THOUGHT THERE WERE A NUMBER OF THINGS CONGRESS
SHOULD TAKE A LOOK AT THAT I HAD EXPERIENCE. ONE OF THEM WAS I
PROPOSED TIMELINES I PROPOSED 180 DAYS UP OR DOWN VOTE. THAT
WAS SOMETHING FROM MY EXPERIENCE I THOUGHT WOULD AVOID
CONTROVERSY AND HAVE RULES SET IN ADVANCE. I PROPOSED THAT
SPECIFICALLY FOR CONGRESS TO CONSIDER. OTHER ASPECTS, ANOTHER
THING I PROPOSED WAS FOR CONGRESS TO CONSIDER WHETHER IT
SHOULD LOOK AT CLINTON VERSUS JONES FOR THE PRINCIPLE OF
CLINTON VERSUS JONES. YOU CALL THAT AND SAY PRESIDENT IS SUBJECT TO CIVIL JONES WHILE IN
OFFICE. THAT WAS A CONTROVERSIAL DECISION. THE SUPREME COURT MADE
IT CLEAR THAT CONGRESS COULD PROVIDE EXTRA DEFERRAL OF SUITS.
NOT IMMUNITY BUT DEFERRAL OF SUITS FOR PRESIDENTS IF CONGRESS
WANTED. IN MINNESOTA ARTICLE I POINTED OUT IDEAS ABOUT, WHETHER
CONGRESS MAY WANT TO THINK ABOUT THAT. WHY DID I DO THAT? SENATOR
DURBIN ASKED, WHAT CHANGE MAYBE THINK ABOUT THAT? WHAT CHANGED
WAS SEPTEMBER 11. THAT IS WHAT CHANGE. AFTER SEPTEMBER 11, I
THOUGHT VERY DEEPLY ABOUT THE PRESIDENCY. I THOUGHT VERY DEEPLY ABOUT THE
INDEPENDENT COUNSEL EXPERIENCE. I THOUGHT VERY DEEPLY ABOUT HOW
THOSE THINGS INTERACTED. I THOUGHT ABOUT SEEING PRESIDENT
BUS WHEN HE CAME INTO THE OVAL OFFICE ON SEPTEMBER 12, HE SAID
THIS WILL NOT HAPPEN AGAIN. THIS WILL NOT HAPPEN AGAIN. HE WAS AS
SINGLE-MINDED EVERY MORNING. HE HAD A
SINGLE-MINDED FOCUS. TO GET BACK TO THE INDEPENDENT COUNSEL
EXPERIENCE ON AUGUST 1998. >>I PROPOSED SOME IDEAS. HERE
IS THE BOTTOM LINE. THERE WERE IDEAS FOR CONGRESS TO CONSIDER.
THEY WERE NOT MY CONSTITUTIONAL VIEWS. THE CASE CAME UP, WHERE
SOMEBODY WAS TRYING TO SAY THIS IS A CONSTITUTIONAL PRINCIPLE, I
WOULD HAVE A COMPLETELY OPEN MIND ON THAT. I HAVE NEVER TAKEN
A POSITION ON THE CONSTITUTION ON THAT QUESTION. I HAVE ONLY PUT UP PROPOSALS FOR
YOU ALL TO STUDY, TO THINK ABOUT THE BALANCE OF PRESIDENTS
FIGHTING THE WAR, LEADING THE WAR AND THE PRESIDENT SUBJECT TO
SAY >>YOU ARE BECOMING. GOOD. YOU ARE
LEARNING A FILIBUSTER BUT LET ME ASK THIS QUESTION PRECISELY. TO
SUPREME COURT HAS UNANIMOUSLY RULED THE PRESIDENT CAN BE
REQUIRED TO TURN OVER INFORMATION. IT’S UPHELD THE
SUBPOENA FOR THE TAPES THAT ALL THE CONVERSATIONS THAT REVEALED
PRESIDENT NIXON’S OF TEMPS — ATTEMPTS TO COVER UP THE
WATERGATE INVESTIGATION FOR YOU HAVE SAID THE NIXON CASE MIGHT
HAVE BEEN WRONGLY DECIDED. WAS THAT CASE WRONGLY DECIDED?
>>THAT QUOTE IS NOT IN CONTEXT, AND IS A MISUNDERSTANDING OF MY
POSITION. I HAVE REPEATEDLY CALLED NIXON ONE OF THE FOUR GREATEST MOMENTS IN SUPREME
COURT HISTORY. I HAVE IDENTIFIED MARBURY VERSUS MADISON
YOUNGSTOWN AND UNITED STATES VERSUS RICHARD NIXON AND BROWN
VERSUS FORD AND — TEST >>WAS THAT RIGHTLY DECIDED?
>>YES. IN THE CONTEXT OF THE SPECIAL COUNSEL
REGULATIONS ON THAT CASE, FOR INFORMATION A CRIMINAL TRIAL
SUBPOENA FOR INFORMATION UNDER THE SPECIFIC REGULATIONS ON THAT
CASE, I HAVE SAID THAT HOLDING IS ONE OF THE FOUR GREATEST
MOMENTS IN SUPREME COURT HISTORY. I CAN EXPLAIN HOW THAT
MISUNDERSTANDING CAME UP BECAUSE THERE WAS A STORY ABOUT THAT.
THAT WAS NOT THE CORRECT IMPRESSION OF MY VIEWS. WHY? IT
WAS GREAT BECAUSE OF THE POLITICAL
PRESSURES OF THE TIME. THEY STOOD UP FOR JUDICIAL
INDEPENDENCE IN MOMENT OF NATIONAL CRISIS. ONE OF THE THINGS THAT IS REALLY
IMPORTANT FOR THE SUPREME COURT, WE ARE GOING TO HAVE CRISIS
MOMENT ON THINGS WE CANNOT EVEN PREDICT. WHEN HE PEOPLE ON THE
SUPREME COURT WHO ARE PREPARED FOR THAT.
>>MY TIME IS RUNNING OUT QUICKLY. LET ME ASK YOU. CAN A
SITTING PRESIDENT BE REQUIRED TO RESPOND TO A SUBPOENA?
>>THAT’S A HYPOTHETICAL QUESTION ABOUT WHAT WOULD BE DIFFERENT
FROM NIXON. I THINK GOING WITH THE JUSTICE
GINSBURG PRINCIPLE WHICH IS REALLY NOT THE IS EVERYONE’S
PRINCIPLE. AS A MATTER OF JUDICIAL
INDEPENDENCE I CANNOT GIVE YOU AN ANSWER NOT QUESTION. YOU CANNOT GIVE YOU AN ANSWER ON
WHETHER PRESIDENT HAS RESPOND TO A SUBPOENA FROM A COURT OF LAW?
>>IT IS MY UNDERSTANDING THAT YOU ARE ASKING ME TO GIVE MY
VIEW ON A POTENTIAL HYPOTHETICAL. THAT IS SOMETHING
THAT EACH OF THE EIGHT JUSTICES CURRENTLY SITTING ON THE SUPREME
COURT I CAN TELL YOU ABOUT THE U.S.
NIXON PRECEDENT AND THEY DID ABOUT CHIEF JUSTICE ROLE IN
FORGING A UNANIMOUS OPINION APPOINTED BY PRESIDENT NIXON,
WRITES THE OPINION HONORING PRESIDENT NIXON TO
DISCLOSE THE TAPES IN RESPONSE TO CRIMINAL TRIAL SUBPOENA A
MOMENT OF CRISIS ARGUMENT I THINK JULY 8, 1974 THAT DECIDED
A COUPLE OF WEEKS LATER REALLY IMPORTANT OPINION A MOMENT OF JUDICIAL
INDEPENDENCE IMPORTANT PRESIDENT OF THE SUPREME COURT AS A
SITTING JUDGE AND AS A NOMINEE FOLLOW THE
PRESIDENT OF THE NOMINEE TO STAND HERE BEFORE IS MADE OF
JUDICIAL INDEPENDENCE I UNDERSTAND. THANK YOU VERY MUCH.
I APPRECIATE IT. >>I ASSUME YOU WANT TO RESERVE
YOUR THREE MINUTES SENATOR HATCH.
>>THANK YOU, MR. CHAIRMAN BEFORE HE BEGAN I WOULD LIKE TO
ENTER INTO THE LETTERS AND I MUST ADD SUPPORTING JUDGE KAVANAUGH’S
CONFIRMATION FOR THE FIRST LETTER MENTIONED YESTERDAY FOR MEMBERS OF THE SUPREME COURT
BAR, AND INCLUDES PEOPLE LIKE LISA BLACK, MAYNARD, KATHLEEN
SULLIVAN. THE SIGNERS QUOTE HOLD A BROAD RANGE OF POLITICAL
POLICY AND JURISPRUDENTIAL VIEWS BUT THEY’S DATE AS ONE AND
SUPPORTING KAVANAUGH’S NOMINATION.”. THE LETTER AUTHORS
WRITE BASED ON OUR EXPERIENCE WITH JUDGE KAVANAUGH AND HIS
WORK OVER 12 YEARS OF DISTINGUISHED JUDICIAL SERVICE
WE ARE CONFIDENT THAT HE POSSESSES THE CHARACTER,
TEMPERAMENT AND INTELLECT THAT WILL MAKE HIM AN ASSET TO OUR
NATIONS” THE SECOND LETTER IS FROM CAROLYN WILLIAMS A PARTNER
AT THE VENERABLE DC LAW FIRM WILLIAMS AND CONNELL. SEE SERVED
ON THE STANDING COMMITTEE ON THE FEDERAL JUDICIARY SHE WRITES
THAT SHE HAS FOLLOWED KAVANAUGH’S CAREER SINCE 1990
WHEN SHE WAS THE HIRING PARTNER AT THE FIRM. HE WAS THE LAW
STUDENT. MS. WILLIAMS SAYS THE JUDGE
KAVANAUGH COURT HAS ALL THE QUALITIES LITIGANTS AND LAWYERS
LOOK TO FIND IN SUPREME COURT JUSTICE. SUPERB INTELLECT AND
LEGAL ACUMEN FUNDAMENTAL FAIRNESS DECENCY, ABIDING RESPECT FOR PRECEDENT, AND OF
THE RULE OF LAW.” FOR I WANT TO ENTER A LETTER A LETTER BY
LESKO IT’S. THAT APPEARED IN NATIONAL REVIEW IT IS REQUIRED
KAVANAUGH IS A MAN’S. HE WRITES, JUDGE KAVANAUGH HAS A
STRONG COMMITMENT TO PROTECTING AMERICANS. THE FREEDOM OF
RELIGION, NO MATTER WHAT THEIR FAITH. HE SHOULD KNOW, HE AND
KAVANAUGH WORKED TOGETHER IN PRIVATE PRACTICE ON A PRO BONO
RELIGIOUS FREEDOM CASE REPRESENTING A JEWISH SYNAGOGUE
IN MARYLAND. THEY WON THE CASE. IT INDICATES THE RIGHT OF THE
CONGREGATION TO BUILD A PLACE OF WORSHIP IN THEIR NEIGHBORHOOD.
LET ME JUST BEGIN WITH THIS KEEP YOUR ANSWERS TO MY QUESTIONS AS
CONCISE AS YOU CAN SO I CAN GET THROUGH AS MANY OF THEM AS TIME
ALLOWS SOME OF MY COLLEAGUES HAVE SUGGESTED, PRESIDENT TRUMP
NOMINATED YOU BECAUSE HE THOUGHT YOU WOULD RULE IN HIS FAVOR
SHOULD CERTAINLY ISSUES BECOME THE COURT. SUPPOSE YOU HAD A
CASE INVOLVING PRESIDENT TRUMP OR AN ISSUE NEAR AND DEAR TO THE
PRESIDENT, WHAT ASSURANCES CAN YOU PROVIDE THAT YOU WILL NOT
ALLOW THE PRESIDENT’S PERSONAL VIEWS ON A CASE OR PERSONAL
INTEREST AFFECT YOUR DECISION? >>I AM AN INDEPENDENT JUDGE.
FOR 12 YEARS I’VE BEEN THIS DECIDING CASES BASED ON THE LAW.
EACH CASE WAS CONFIRMED IN THE SUPREME COURT. I WILL BE PART OF
A TEAM OF NINE I WILL DECIDE CASES BASED ON CONSTITUTION WITHOUT FEAR OF FAVOR,
INDEPENDENTLY THE PERSON WHO HAS THE BEST
ARGUMENT OF THE LAWN THE PRESIDENT IS THE PERSON WHO WILL
WIN WITH ME. >>THANK ME AT THE END OF THIS
PROCESS IF YOU ARE CONFIRMED TO THE SUPREME COURT WHICH I EXPECT
YOU WILL BE, WHAT SORT OF LOYALTY WHICH, WHILE YOU ALL TO
THE PRESIDENT? HOW IS THAT DIFFERENT FROM WHAT YOU WILL OWE
TO THE AMERICAN PEOPLE? >>IF CONFIRMED AS A SITTING
JUDGE I OWE MY LOYALTY TO THE CONSTITUTION. THAT IS WHAT I OWE
LOYALTY TO. AND THE CONSTITUTION ESTABLISHES ME AS AN INDEPENDENT
JUDGE, BOUND TO FOLLOW THE LAW AS WRITTEN, THE PRECEDENTS OF
THE SUPREME COURT AS ARTICULATED SUBJECT TO THE RULES OF THE
SYSTEM. YOU WERE APPOINTED BY GEORGE W. BUSH. I THINK IT’S
FAIR TO SAY YOU WERE CLOSE. TO PRESIDENT BUSH. YOU WORK FOR HIM FOR NUMBER OF YEARS. CAN
YOU GIVE SOME EXAMPLE OF CASES IN WHICH YOU WORLD AGAINST THE
BUSH ADMINISTRATION NOTWITHSTANDING BUSH WAS THE ONE
THAT PUT YOU ON THE BENCH. CENTER THE MOST PROMINENT
EXAMPLE IS THE HOME DON CASE. THAT WAS THE MILITARY COMMISSION
CASE. THAT WAS A SINGULAR CASE. THEY HAD ESTABLISHED WITH
CONGRESSIONAL AUTHORIZATION EVENTUALLY AFTER UNILATERAL
EFFORT DID NOT SUCCEED IN THE COURTS. ESTABLISH MILITARY
COMMISSION MILITARY COMMISSIONS WERE TO TRY AL QAEDA. TERRORISTS
WOULD COMMITTED WAR CRIMES. IN ONE CASE CAME TO US. THE
QUESTION WAS. WAS THE PROSECUTION UNLAWFUL BECAUSE THE
CRIME OF WHICH HE WAS CONVICTED WAS NOT AN IDENTIFIED CRIME AS
OF 2001 WHEN HE WAS ALLEGED TO COMMITTED IT. THE PRINCIPLES, I
WROTE THE OPINION REVERSING HIS CONVICTION. EVEN THOUGH IT WAS A
SIGNATURE PROSECUTION OF THE UNITED STATES THAT WAS THE RIGHT ANSWER UNDER
THE LAW AND IT DOES NOT MATTER WHO YOU ARE OR WHERE YOU COME
FROM IF YOU’RE RIGHT UNDER THE LAW, YOU PREVAIL. WOULD LIKE TO
TURN NOW TO YOUR WORK IN AS YOU KNOW MY DEMOCRATIC COLLEAGUES
ARE DEMANDING TO SAY EVERY SINGLE SCRAP OF PAPER YOU HAVE
EVER TOUCHED, DURING YOUR SIX YEARS AND THE BUSH
ADMINISTRATION IN PART, BECAUSE THEY WANT TO KNOW WHAT RULE IF ANY YOU PLAYED IN DEVELOPING
THE BUSH ADMINISTRATION INTERROGATION POLICY. SIX YEARS
AGO, RANKING MEMBER FEINSTEIN WHO HAS BEEN THE CHAIRMAN OF THE
INTELLIGENCE COMMITTEE AND A GOOD ONE, ISSUED A LENGTHY
REPORT ON THE CIA’S DETENTION AND INTERROGATION PROGRAM UNDER
BUSH. THE REPORT DETAILED, THE ORIGINS DEVELOPMENT, AND
IMPLEMENTATION OF THE PROGRAM. 2014, A DECLASSIFIED VERSION OF
THAT REPORT, WAS RELEASED TO THE PUBLIC. DECLASSIFIED VERSION OR
REPORT, RUNS WELL OVER 500 PAGES YOUR NAME APPEARS NOWHERE IN IT.
I MY SPELL SPENT OVER 20 YEARS ON THE INTELLIGENT
COMMITTEE I KNOW THE QUALITY OF THE STAFF AND THE WORK THAT THEY
DO. I KNOW THE RANKING AND HOW DILIGENT SHE IS IF YOU ARE
PLAYED A ROLE IN THE BUSH ADMINISTRATION INTERROGATION
POLICIES, I THINK THE RANKING MEMBER WOULD HAVE DISCOVERED IT
FOR NUMEROUS ADMINISTRATION LAWYERS APPEAR IN THE REPORT,
BUT NOT YOU. THAT SHOULD TELL US SOMETHING. WITH THAT SAID, I
WANT TO ASK YOU FOR THE RECORD, WHAT ROLE IF ANY, DID YOU PLAY
IN DEVELOPING OR IMPLEMENTING THE BUSH ADMINISTRATION’S
DETENTION AND INTERROGATION POLICY?
>>THE POLICIES REFLECTED AND DESCRIBED IN SENATOR FEINSTEIN’S
EXTENSIVE THOROUGH, REPORT, WERE CONTROVERSIAL AS YOU KNOW,
SENATOR. THE ENHANCED INTERROGATION TECHNIQUES AND
LEGAL MEMOS THAT WERE INVOLVED IN JUSTIFYING SOME OF THOSE
TECHNIQUES ALSO, WERE CONTROVERSIAL WHEN DISCLOSED IN
2004. I WAS NOT INVOLVED I WAS NOT READ INTO THAT PROGRAM. I
WAS NOT INVOLVED IN CRAFTING THAT PROGRAM NOR CRAFTING THE
LEGAL JUSTIFICATIONS FOR THAT PROGRAM. IN ADDITION TO SENATOR
FEINSTEIN’S REPORT TO THE JUSTICE DEPARTMENT THEY DID A
LENGTHY OFFICE OF PROFESSIONAL RESPONSIBILITY REPORT ABOUT THE
LEGAL MEMOS THAT A BEEN INVOLVED TO JUSTIFY SOME OF THOSE
PROGRAMS. MY NAME IS NOT IN THAT REPORT, SENATOR, BECAUSE I WAS
NOT READ INTO THAT PROGRAM AND NOT INVOLVED. THERE WERE A
NUMBER OF LAWYERS THAT CAME UP AT MY LAST HEARING. A NUMBER OF
LAWYERS WHO WERE INVOLVED INCLUDING A COUPLE WHO WERE
JUDICIAL NOMINEES. IN MY LAST HEARING I RECALL SENATOR DURBIN
ASKING ABOUT WHETHER I ALSO WAS LIKEWISE INVOLVED AS THE OTHER
JUDICIAL NOMINEES HAD BEEN, AND THE ANSWER WAS NO. THAT ANSWER
WAS ACCURATE. THAT HAS BEEN SHOWN TO BE ACCURATE BY THE
OFFICE OF RESPONSIBILITY REPORTS BY SENATOR FEINSTEIN’S THOROUGH
REPORT. I DO WANT TO SAY ON FEINSTEIN’S REPORT, THAT IS AN
IMPORTANT PIECE OF WORK. IT COLLECTED FACTS ABOUT A PROGRAM
THAT IT IS IMPORTANT FOR US TO KNOW THOSE FACTS. FOR THE
FUTURE. I KNOW IT’S AN ENORMOUS EFFORT AND A LOT OF TOUGH WORK
TO GET ALL THAT INFORMATION FOR SENATOR FEINSTEIN AND THE
INTELLIGENCE COMMITTEE. I HAVE LOOKED THROUGH THAT REPORT. LOOKS TO THE OFFICE OF PROFESSIONAL RESPONSIBILITY
REPORT I WAS NOT READ INTO THAT PROGRAM SENATOR. THANK YOU FOR
ASKING. >>JUDGE, YOU BEEN ACCUSED OF
MISLEADING THIS COMMITTEE DURING YOUR 2006 CONFIRMATION HEARING,
REGARDING YOUR ROLE IN DEVELOPING THE BUSH
ADMINISTRATION DETENTION POLICY. YOU HAVE A STRONG REPUTATION IN
THE BIGGER COMMUNITY FOR HONESTY AND INTEGRITY. READ ANY ONE OF THE DOZENS OF
LETTERS FROM YOUR PEOPLE SUPPORTING YOU AND YOU WILL SEE
THAT IMMEDIATELY. SOME OF MY COLLEGE MAY NOT GIVE YOU THE
OPPORTUNITY TO ANSWER THE QUESTION FULLY. I WOULD LIKE TO
GIVE YOU THE OPPORTUNITY NOW. DID YOU MISLEAD THIS COMMITTEE
AND 2006? IF NOT, WHAT IS THE SOURCE OF THE CONFUSION ABOUT
YOUR PRIOR TESTIMONY? >>I TOLD THE TRUTH. I TOLD THE
WHOLE TRUTH. I WAS NOT READ INTO THAT
PROGRAM. THE SUBSEQUENT REPORTS OF FEINSTEIN AND THE OFFICE OF
PROFESSIONAL RESPONSIBLY SHOW THAT. THAT IS WHAT I DID THEN.
THAT’S THE ANSWER NOW. WAS NOT READ INTO THAT PROGRAM.
>>AS I MENTIONED, MY OPENING STATEMENT, 18 OF YOUR FORMER
WOMEN LAW CLERKS, HAVE WRITTEN TO THE COMMITTEE IN SUPPORT OF
YOUR NOMINATION. THAT IS ALL. THEY WERE NOT PRECLUDED BY THEIR
CURRENT OR PENDING EMPLOYMENT FROM SIGNING THE LETTER. THESE
WOMEN DESCRIBE THE MENTORING AND ENCOURAGEMENT YOU HAVE GIVEN
THEM IN THEIR CAREERS. THEY SAY THAT YOU ARE QUOTE, ONE OF THE
STRONGEST ADVOCATES AND THE FEDERAL JUDICIARY FOR WOMEN
LAWYERS. THAT’S QUITE A COMPLIMENT. THE MAJORITY OF YOUR
CLERKS IN FACT, HAVE BEEN WOMEN. I UNDERSTAND YOU WERE THE FIRST
JUDGE IN THE HISTORY OF THE DC CIRCUIT TO HAVE AN ALL FEMALE
CLASS OF CLERKS. WHY DO YOU BELIEVE IT? YOU ARE ENSURING
BOTH MEN AND WOMEN ARE WELL REPRESENTED IN THE LEGAL
PROFESSION. >>I BELIEVE IN EQUALITY.
QUALITY FOR ALL AMERICANS. I BELIEVE IN QUALITY AND RACE AND BREAKING BARRIERS. SHE SHOWED ME BY HER EXAMPLE OF
TEACHING. MY MOTHER BECAME A LAWYER. THERE WERE NOT MANY
WOMEN PROSECUTORS IN THE LATE 70s. IT
WAS DEFINITELY MALE-DOMINATED. MY MOTHER OVERCAME BARRIERS. SHE
WAS A GREAT PROSECUTOR. SHE WAS APPOINTED BY DEMOCRATIC
GOVERNORS. SHE SHOWED ME BY HER EXAMPLE. SHE SHOWED ME THE
IMPORTANCE OF WOMEN’S EQUALITY. DURING COLLEGE, I RECEIVED A LETTER. EVEN WHEN I WAS IN COLLEGE I
RETREATED — TREATED WOMEN EQUALLY. YOU RECEIVED MANY
LETTERS FROM WOMEN GIVING ME REFERENCES.
>>DID YOU SAY 84 WOMEN? >>YES. 84 WOMEN FROM THE BUSH
WHITE HOUSE. I CAME TO BE A JUDGE IN 2006. AUGUST 2006, LINDA GREENHOUSE RAN A STORY IN
THE NEW YORK TIMES ABOUT THE SCARCITY OF WOMEN LAW CLERKS AND
THE SUPREME COURT THAT YEAR. THERE WERE SEVEN THAT YEAR OUT
OF 37. SHE WROTE A STORY ABOUT THAT. THAT SEEMED TO ME VERY ODD
AND UNACCEPTABLE. I STARTED TO THINK ABOUT WHAT I COULD DO. WHY
IS THAT HAPPENING? WHAT CAN I DO ABOUT IT? WHAT IS THE PROBLEM?
WHAT CAN I DO? THE PROBLEM SEEMED TO BE NETWORKS THAT
JUDGES RELY ON FOR CLERKS AND PROFESSOR NETWORKS. THEY WERE
GETTING THEY WERE EXCLUDING WOMEN OR WOMEN WERE NOT FULLY
REPRESENTED. THAT IS TRUE WITH MINORITIES AS WELL BY THE WAY. I
MADE SURE WHAT I WAS TALKING TO PROFESSORS AT LAW SCHOOLS, MAKE
SURE I WANTED TO SEE YOUR BROAD POOL OF QUALIFIED,
WELL-QUALIFIED APPLICANTS, THAT INCLUDED WOMEN. IN THAT YEAR, THE FALL OF 2006
WHICH IS MY FIRST YEAR ON THE BENCH, WE HIRED ONE YEAR AHEAD.
I HAD THREE WOMEN FOR THE CLERK CLASS, THREE OUT OF THE FOUR. THAT WAS THE START OF MY EFFORTS
TO MAKE SURE THAT WOMEN WERE NOT EXCLUDED. I WORKED ON WHY IS
THIS HAPPENING? YELL LAW WOMEN DID A STUDY FIVE YEARS
AGO ABOUT WOMEN’S PARTICIPATION IN CLASS AND THE DIFFERENCE
ABOUT WHO GETS CALLED ON IN CLASS. THERE ARE DIFFERENCES
THERE. THEY GET SELECTED AS RESEARCH ASSISTANTS.
THERE ARE DIFFERENCES THERE. IT KEEPS BUILDING. YOU GET A
DISPARITY IN THE CLERK NETWORK. THERE IS A PIPELINE PROBLEM. I
AM BREAK INTO THAT PROBLEM. I AM NOT LISTENING TO THAT. I HAVE
BEEN VERY AGGRESSIVE ABOUT HIRING THE BEST
AND UNDERSTANDING THE BEST INCLUDES WOMEN. AS YOU SAY,
SENATOR A MAJORITY OF MY CLERKS HAVE BEEN WOMEN. I BELIEVE 21
HAVE GONE ON TO CLERK OF THE SUPREME COURT. THEY ARE AN
AWESOME GROUP. IF CONFIRMED TO THE SUPREME
COURT, I WILL CONTINUE TO DO THIS. MY MOM SHOWED ME THIS AND PRESIDENT
BUSH SHOWED ME THIS, WHAT IT TAKES IS NOT ACCEPTING THE SAME
OLD ANSWER. THERE IS A DISPARITY. WHY AND THEN, DO
SOMETHING ABOUT IT. I TRY TO FIGURE OUT WHY. WE TALKED ABOUT
MINORITY CLERKS TOO. WHY DID THOSE DISPARITIES EXIST? I TRY
TO FIGURE OUT WHY AND I DID SOMETHING ABOUT IT. I AM VERY
PROUD OF THAT. I DO BELIEVE THAT ALL PEOPLE SHOULD BE TREATED
EQUALLY. THE LAW CLERK POSITION MAY SOUND AND MINISTERIAL BUT
THOSE POSITIONS ARE VERY IMPORTANT LAUNCHING PADS. THE PEOPLE WILL BE SITTING IN
THESE SEATS AND THEY WILL COME FROM LAW CLERKS. IF WE ARE NOT INCLUSIVE NOW,
THAT WILL SHOW UP LATER. IT IS SOMETHING I’M FOCUSED ON AT ALL
TIMES. IT’S A QUALITY — IT’S EQUALITY. I APPRECIATE THE
QUESTION, SENATOR. THANK YOU. I APPRECIATE THE ANSWER. I THINK
EVERYBODY IN THE COUNTRY SHOULD APPRECIATE THE ANSWER.
>>LATE LAST YEAR, ALLEGATIONS AGAINST FORMER NIGHT CIRCUIT
JUDGE ALEX KACZYNSKI, SURFACED WHEN THE POST PUBLISHED AN
ARTICLE DETAILING DISTURBING ALLEGATIONS OF MISCONDUCT BY THE JUDGE YOU CLERKED FOR HIM
FOR ONE YEAR IN 1991 TO 1992 PER SOME OPPONENT SUGGESTED YOU MUST
HAVE KNOWN ABOUT THESE ALLEGATIONS. SEEMS TO ME TO BE
AN EFFORT OF GUILT BY ASSOCIATION. WHICH IS NOT THE
WAY THIS COMMITTEE SHOULD OPERATE ANYWAY. WITH THAT IN MIND I WANT TO GIVE
YOU A CHANCE TO ANSWER A FEW QUESTIONS ABOUT JUDGE KACZYNSKI.
SO THAT WE ARE ALL OPERATING ON THE SAME FOUNDATION OF FACTS.
FIRST, HOW LONG HAVE YOU KNOWN JUDGE KACZYNSKI?
>>I CLERKED FOR HIM IN 1991 TO 92. AT LARD — HE OPERATED AN EMAIL LIST WHERE
HE WOULD SEND INAPPROPRIATE MATERIAL. WERE YOU ON THIS LIST?
>>I DO NOT REMEMBER ANYTHING LIKE THAT, SENATOR.
>>HOW OFTEN DID YOU TALK TO HIM ON THE PHONE ?
>>NOT OFTEN. >>HOW OFTEN DID YOU SEE THEM IN
PERSON? >>AGAIN, NOT OFTEN. MAYBE WHEN THERE WAS A LEGAL
CONVENTION. >>A LOT OF PEOPLE DO NOT
UNDERSTAND. >>I WAS NOT WORKING IN THE
COURTHOUSE. HE WAS IN THE PASADENA COURTHOUSE IN
CALIFORNIA. IT WAS A SMALL COURTHOUSE. I WAS WORKING IN
WASHINGTON DC. >>WHEN YOU DID SEE AND TALK
WITH HIM, WHAT TYPES OF THINGS DID YOU TALK ABOUT?
>>WE WERE AMONG THE 12 GO OFF THIRDS GAS CO-AUTHORS —
CO-AUTHORS. 12 OF US WERE WORKING ON THE BOOK. WE WERE WORKING ON THE BOOK OF
THE GROUP. JUSTICE KENNEDY FOR THE LAST 30 YEARS HAS HAD JUDGE
KACZYNSKI RUN JUSTICE KENNEDY’S LAW CLERK HIRING PROCESS. IN THE
COURSE OF THAT PROCESS, I WOULD HAVE COMMUNICATIONS WITH THE JUDGE.
>>DID YOU KNOW ANYTHING ABOUT THESE ALLEGATIONS?
>>NOTHING. >>BEFORE THEY CAME PUBLIC LAST
YEAR? >>NO. THE FIRST THOUGHT I HAD
WAS NO WOMAN SHOULD BE SUGGESTED — SUBJECTED TO SEXUAL
HARASSMENT IN THE WORKPLACE EVER. ESPECIALLY IN THE
JUDICIARY. WHEN I HEARD, WHEN THEY BECAME PUBLIC IN DECEMBER,
IT WAS A PUNCH. >>IT WAS FOR ME TOO.
>>I WAS SHOCKED. I WAS DISAPPOINTED. I WAS ANGRY.
IT WAS A SWIRL OF EMOTIONS. NO WOMAN SHOULD BE SUBJECTED TO
SEXUAL HARASSMENT IN THE WERE — WORKPLACE. THOSE ARE FIRST STEPS. I DO NOT
THINK THOSE ARE FINAL STEPS BY ANY STRETCH. THIS IS PART OF A
MUCH LARGER NATIONAL PROBLEM. ONE OF THE THINGS WE’VE LEARNED
IS WE NEED BETTER REPORTING MECHANISMS. WOMEN PARTICULARLY
IN THE WORKPLACE NEED TO KNOW IF THERE THE VICTIM OF HARASSMENT
WHERE TO REPORT IT. THEY NEED TO KNOW WHO TO REPORT
IT TO IMMEDIATELY. THE NEED TO BE
>>THEY NEED SAFE.TO KNOW THEY WILL BE SAFE IF THEY REPORTED
AND WILL NOT BE RETALIATED AGAINST. THEY WILL BE PROTECTED
IF THEY REPORTED. THAT IS ALSO ONE PART OF OF THE STEPS THE ARE
STEPSONE OF THE STEPSTHAT IS BEING IMPROVED AS A RESULT OF
THE WORKING GROUP. I AM INTERESTED IN DOING
EVERYTHING I CAN TO ASSIST THOSE EFFORTS IS IN PART MAKING OF THOSE A
WORKPLACES SAFE. BROADER IT IS PART OF NATIONAL A PROBLEM
BROADER, NATIONAL PROBLEM. WHETHER IT IS PRIESTS OR
TEACHERS OR COACHES OR DOCTORS OR BUSINESS PEOPLE ARE NEWS
PEOPLE IS A LOT THERE IS A BROAD, NATIONAL
PROBLEM THAT NEEDS TO BE ADDRESSED. I APPLAUD CHIEF
JUSTICE ROBERT FOR DOING SO. >>I WOULD LIKE TO TALK TO YOU
ABOUT THE CHEVRON DOCTRINE. THIS IS AN IMPORTANT JUDICIAL
DOCTRINE THAT MAKES — TAKES ITS NAME FROM THE SUPREME COURT CASE
THAT CREATED IT BACK IN THE 1980S. THAT CASE INSTRUCTED
SUPREME COURT TO DEFER AN AGENCY’S INTERPRETATION OF THE
LAW IF THE LAW IS QUOTE, AMBIGUOUS. SOME OF YOUR ACADEMIC
WRITINGS EXPRESS SKEPTICISM ABOUT THE CHEVRON DOCTRINE. YOU
ARE CONCERNED IT ALLOWS A POLICY PREFERENCE OF AVOIDING THE
POLITICAL PROCESS. I CAN UNDERSTAND WHY THIS WOULD BE
APPEALING TO AN ADMINISTRATION. I THINK IT IS
ALSO A THREAT TO THE SEPARATION OF POWERS. IT TRANSFERS POWER
FROM THE CONGRESS AND JUDICIARY TO THE EXECUTIVE BRANCH. THAT IS
WHY I HAVE INTRODUCED A SEPARATION OF POWERS ACT TO
INTRODUCE THE CHEVRON DOCTRINE. MANY MEMBERS OF THIS COMMITTEE
HAVE COSPONSORED THIS LEGISLATION. AS SOMEONE WHO HAS
WRITTEN EXTENSIVELY ABOUT THE SEPARATION OF POWERS, CAN YOU
TELL US WHY THE SEPARATION OF POWERS IS SO IMPORTANT? AND HOW IT HELPS TO PROTECT
INDIVIDUAL FREEDOM. SEPARATION OF POWERS PROTECTS INDIVIDUAL
LIBERTY. >>IT RE-PONDS TO THE CONCERNS
THE FRAMERS HAD THAT THE ACCUMULATION OF ALL
POWER IN ONE BODY IS A VERY DEFINITION OF TYRANNY.
FEDERALIST 47 AND 69 WILL TALK ABOUT THAT. THE SEPARATION OF
POWERS PROTECTS INDIVIDUAL LIBERTY. IT DOES SO BECAUSE
CONGRESS CAN PASS THE LAW, BUT YOU CANNOT ENFORCE THE LAWS. A
SEPARATE BODY HAS TO ENFORCE THE LAW. EVEN IF THE LAW IS
ENFORCED, A CITIZEN MAY SAY I WANT SOMEBODY WHO DIDN’T
ENFORCE THE LAW TO DECIDE IF I VIOLATED THE LAW OR WHETHER IT
IS CONSTITUTIONAL. THAT IS WHY WE HAVE AN INDEPENDENT JUDICIARY
TO GUARANTEE OUR RIGHTS AND LIBERTIES. THE THREE BRANCHES
THEREFORE DO SEPARATE THINGS BECAUSE IT ALL TILTS TOWARDS
LIBERTY. IT IS HARD TO PASS A LAW IN CONGRESS. EVEN IF IT DOES
GET PAST — PASSED IT DECIDE YOUR LIBERTY. THEN YOU HAVE TO
USE THE U.S. ATTORNEY’S OFFICE TO
ENFORCE THE LAW. THAT IS A SEPARATE DECISION THAT PROTECTS
YOUR LIBERTY. EVEN IF THAT HAPPENS YOU GO TO A COURT, AND
YOU SAY I EITHER DIDN’T VIOLATE THAT LAW AS I AM ACCUSED OF
DOING OR THAT LAW IS UNCONSTITUTIONAL, OR THEY ARE
INTERPRETING THE LAW IN A WAY THAT IS NOT CONSISTENT WITH WHAT
THE LAW SAID. THE COURT INDEPENDENTLY DECIDES THAT, NOT
THE MEMBERS OF CONGRESS OR THE EXECUTIVE DECIDING THAT. THAT IS
HOW THE CONSTITUTION SEPARATION OF POWERS TILTS TOWARDS LIBERTY
IN ALL ITS RESPECTS. AS TO YOUR SPECIFIC QUESTION, SENATOR , ONE THING I HAVE SEEN IN MY
EXPERIENCE IN THE EXECUTIVE BRANCH AND THE JUDICIAL BRANCH
IS A NATURAL TENDENCY THAT JUDGES NEED TO BE AWARE OF AND
RESPOND TO. HERE IS THE NATURAL TENDENCY, CONGRESS PASSES LAWS , THEN IT CAN’T UPDATE THE LAW.
MAYBE IT IS AN ENVIRONMENTAL LAW OR A LAW DEALING WITH NATIONAL
SECURITY. WE WILL DEMONSTRATE WITH THOSE TWO EXAMPLES. THEN,
AND EXECUTIVE AGENCY WANTS TO DO A NEW POLICY AND PROPOSES ONE TO
CONGRESS. BUT, CONGRESS DOESN’T PASS THE NEW POLICY. WHAT I HAVE
SEEN TOO OFTEN IS THAT THE OLD LAW IS RELIED UPON AS A SOURCE
OF AUTHORITY TO DO THE NEW THING. THEY TRY TO SAY THE OLD
LAW IS AMBIGUOUS, SO WE CAN FIT THE NEW POLICY INTO THE OLD LAW AS
JUSTIFICATION FOR DOING THIS NEW THING. I HAVE SEEN THIS IN
NATIONAL SECURITY CASES AND ALL OVER THE PLACE. IT IS A NATURAL
PHENOMENON BECAUSE THE EXECUTIVE BRANCH WANTS TO IMPLEMENT WHAT
IT THINKS IS GOOD POLICY. WHEN THOSE CASES COME TO COURT, IT IS
OUR JOB TO FIGURE OUT WHETHER THE EXECUTIVE BRANCH IS ACTIVE
WITHIN THE AUTHORITY GIVEN TO IT BY CONGRESS. HAVE YOU GIVEN THEM
THE AUTHORITY? I AM ROOTED IN RESPECT FOR CONGRESS. HAVE YOU
PASSED THE LAW TO GIVE THE AUTHORITY? I HAVE HEARD IT SAID
THAT I AM A SKEPTIC OF REGULATION. I AM NOT A SKEPTIC
OF REGULATION AT ALL. I AM A SKEPTIC OF UNAUTHORIZED OR
ILLEGAL LEGISLATION THAT IS OUTSIDE THE BOUNDS OF THE LAW
THAT HAS BEEN PASSED BY CONGRESS. THAT IS WHAT IS AT THE
ROOT OF OUR ADMINISTRATIVE LAW AND JURISPRUDENCE.
>>ONE OF THE MOST IMPORTANT JURISDICTIONAL QUALITIES I LOOK
FOR IS THE ABILITY TO INTERPRET THE LAW. THIS CAN OFTEN BE THE
MOST DIFFICULT PART OF A JUDGES JOB. HE MAY BE REQUIRED TO RULE
AGAINST A LEGITIMATE — A PERSON THAT HE AGREES WITH. ONE JUDGE WAS COMMENDED FOR
BEING CAREFUL IN RULING AGAINST APPLICANTS — SUPPLICANTS THAT
MAY GO AGAINST THE LAW. ARE YOU WILLING TO GO ALONG WITH THE LAW
OR CHANGE THE LAW TO BE SYMPATHETIC WITH WHAT CONGRESS
HAS DONE? >>THAT IS WHAT I VIEW AS THE
PROPER JUDICIAL PHILOSOPHY. THE SEPARATION OF POWERS SYSTEM YOU
DESCRIBED, WE HAVE TO STICK TO THE LAWS PASSED BY CONGRESS. YOU
MAKE THE POLICY, WE WILL FOLLOW THE POLICY
DIRECTION YOU PUT INTO THE LAW THAT ARE ENACTED, PAST — PASSED
BY THE HOUSE AND SENATE AND PRESIDENT. THE EXECUTIVE BRANCH
SHOULD NOT REWRITE THOSE LAWS EITHER.
>>SOME OF MY COLLEAGUES CRITICIZE YOU FOR RULING TOO
OFTEN AGAINST ENVIRONMENTAL ISSUES. SOME OF THE
CIRCUMSTANCES BOIL DOWN TO THE FACT THAT SOME OF MY COLLEAGUES
DON’T LIKE THE INVENTOR MILE — ENVIRONMENTAL LAWS CONGRESS HAS PASSED. THEY ARE
FRUSTRATED THEY CAN GET THEIR OWN POLICIES SIGNED INTO LAW. I
LOOKED THROUGH YOUR RECORD AND I FOUND YOU HAVE NOT HESITATED AT
ALL TO UPHOLD ENVIRONMENTAL REGULATIONS WHEN THEY WERE
ACTUALLY AUTHORIZED BY STATUTE. CAN YOU GIVE US A FEW EXAMPLES
OF CASES WHERE YOU HAVE UPHELD ENVIRONMENTAL REGULATIONS
BECAUSE YOU HAVE INCLUDED — CONCLUDED THAT CONGRESS HAD
AUTHORIZED THEM. >>LIMITED TO AS FEW WORDS AS
YOU CAN. >>AS I SAID YESTERDAY , I AM A PRO LAW JUDGE. IN AN
ENVIRONMENTAL CASES I HAVE RULED AGAINST THOSE
INTERESTS AND IN MANY CASES I HAVE RULED FOR ENVIRONMENTALIST
ISSUES. THEY ARE BIG CASES LIKE THE AMERICAN TRUCKING
ASSOCIATIONS CASE, WHERE I UPHELD A CALIFORNIA REGULATION
FOR MAJORITY OVER A DISSENT . THE NATIONAL ASSOCIATION OF
MANUFACTURERS CASE, THE YOU RGA CASE, COAL MINING IN THE
NATIONAL COAL MINING CASE, THE MURRAY ENERGY CASE REJECTING A
PREMATURE CHALLENGE TO A CLEAN POWERPLANT REGULATION. I HAVE RULED IN THE EPA CASE FOR
ENVIRONMENTAL . INDUSTRY CAME IN WITH THEIR
LAWYERS AND SAID WE WILL JUST RIGHT THE AFFIRMATIVE DEFENSE
INTO THE LAW. I WROTE THE OPINION THAT IT IS NOT IN THE
LAW AND WE CANNOT DO IT. THAT MAY BE A PROBLEM FOR INDUSTRY,
BUT WE FOLLOW THE LAW REGARDLESS. THERE ARE MANY CASES
WHERE I HAVE RULED IN FAVOR OF ENVIRONMENTALISTS BECAUSE THAT
IS WHAT THE LAW REQUIRED IN THAT CASE.
>>THANK YOU, JUDGE. >>SENATOR LEE?
>>THANK YOU MR. CHAIRMAN. GOOD MORNING JUDGE.
>>THANK YOU, SENATOR. >>WE HAVE A LOT OF QUESTIONS
AND I KNOW YOU HAVE DONE A LOT OF PREPARATION.’S — PREPARATION
. LET ME ASK YOU A QUESTION THAT
IS NOT NORMALLY AN ISSUE DOING SUPREME COURT HEARINGS. YOU
TESTIFIED BEFORE THIS COMMITTEE IN BOTH 2004 AND 2006 AS PART OF
YOUR NOMINATION TO THE DC CIRCUIT COURT. YOU WERE NICE ENOUGH TO COME BY
MY OFFICE AND CHAT WITH ME LAST MONTH. I ASKED YOU IF YOU COULD
CHANGE ANYTHING IN YOUR PRIOR TESTIMONY , AND YOU SAID NO. IS THAT STILL
YOUR POSITION? >>IT IS , SENATOR. I TOLD THE TRUTH. I
WAS NOT READ INTO THE PROGRAMS. >>I JUST ASKED YOU IF YOU WOULD
CHANGE ANYTHING. >>I WOULD LIKE TO EXPLAIN, IF I
CAN. >>I WILL GIVE YOU A CHANCE THEN
I WILL ASK A COUPLE MORE QUESTIONS.
>>I WANT TO EXPLAIN THAT AT THE LAST HEARING IN 2006 PARTICULAR,
YOU WERE CONCERNED UNDERSTANDABLY THAT THERE HAD
BEEN TWO JUDICIAL NOMINEES THAT HAD BEEN INVOLVED IN THE LEGAL
MEMOS AND DISCUSSIONS AROUND CRAFTING THE ENHANCED
INTERROGATION TECHNIQUES AND DETENTION POLICIES. YOU WERE
CONCERNED WHETHER I WAS INVOLVED IN THOSE. I MADE CLEAR IN
RESPONSE TO THOSE QUESTIONS THAT I WAS NOT READ INTO THAT
PROGRAM. THAT WAS 100% ACCURATE. IT IS STILL ACCURATE TODAY. SENATOR FEINSTEIN’S
REPORT AND THE OFFICE OF RESPONSIBILITY REPORT
ESTABLISHED I WAS NOT INVOLVED IN THOSE PROGRAMS. THERE WERE
TWO JUDICIAL NOMINEES — >>I WANT TO GO INTO THAT, BUT I
DON’T WANT TO GO OVER MY TIME AS THE PRECEDING SENATOR DID.
>>I JUST WANT TO BE CLEAR AND REASSURE YOU —
>>I WILL GIVE YOU A CHANCE. I AM NOT GOING TO TAKE TIME AWAY
FROM YOU. >>I WANT TO CLARIFY THAT IF A QUESTION IS
ASKED WITHIN THE 30 MINUTES, HE CAN FINISH THE QUESTION AND IT
CAN BE ANSWERED. HE DID NOT GO OVER HIS TIME.
>>I DIDN’T MEAN TO HIT A SENSITIVE AREA. LET ME ASK YOU
THIS, BETWEEN — I AM NEW HERE. BETWEEN 2001 AND 2003, TWO
REPUBLICAN STAFFERS ON THIS COMMITTEE HACKED INTO THE
PRIVATE COMPUTER FILES OF SIX DEMOCRATIC SENATORS INCLUDING
MINE. THESE REPUBLICAN STAFFERS STOLE 4670 FILES. THEY USED THEM
TO ASSIST IN GETTING PRESIDENT BUSH’S MOST CONTROVERSIAL
JUDICIAL — JUDICIARY NOMINEES DEFERRED.
THE THEFT BY THESE REPUBLICAN STAFFERS BECAME PUBLIC IN LATE
2003 WHEN THE WALL STREET JOURNAL HAPPEN TO PRINT SOME OF
THE STOLEN MATERIALS. THE RINGLEADER BEHIND THIS MASSIVE
THEFT WAS A REPUBLICAN STAFFER NAMED MANNY MIRANDA. IT WAS
CONSIDERED BY BOTH REPUBLICANS AND DEMOCRATS AS A DIGITAL
WATERGATE, A THEFT NOT UNLIKE WHAT THE RUSSIANS DID AND
HACKING THE DNC. DURING THIS YOU WORK HAND IN HAND IN THE WHITE
HOUSE WITH MANNY MIRANDA TO ADVANCE THE SAME NOMINEES WHERE
HE WAS STEALING MATERIAL. NOT SURPRISINGLY , YOU WERE ASKED EXTENSIVELY
ABOUT YOUR KNOWLEDGE OF THIS THEFT DURING BOTH YOUR 2004 AND
2006 HEARING. I DON’T USE THE WORD EXTENSIVELY LIGHTLY. YOU
WERE ASKED OVER 100 QUESTIONS FROM SIX SENATORS, BOTH
REPUBLICAN AND DEMOCRAT AND YOU TESTIFIED REPEATEDLY THAT YOU
NEVER RECEIVED ANY STOLEN MATERIALS. YOU KNEW NOTHING
ABOUT IT UNTIL IT WAS PUBLIC. YOU TESTIFIED IF YOU HAD
EXPECTED ANYTHING UNTOWARD YOU WOULD HAVE REPORTED IT TO THE
WHITE HOUSE COUNSEL. THEY WOULD HAVE RAISED IT WITH SENATOR
HATCH, ESPECIALLY SINCE MR. MIRANDA WORKED FOR HIM. AT THE
TIME WE LEFT IT THERE. WE DIDN’T KNOW ANY BETTER. TODAY WITH A
VERY LIMITED AMOUNT OF EUROPE WHITE HOUSE RECORD BEING
REPORTED TO THIS COMMITTEE, AND IT IS LIMITED, FOR THE FIRST
TIME WE HAVE LEARNED ABOUT YOUR RELATIONSHIP WITH MR. MIRANDA
AND YOUR KNOWLEDGE OF THESE EVENTS. SO MY QUESTION IS THIS,
IF MR. MIRANDA — DID MR. MIRANDA EVER PROVIDE YOU
WITH HIGHLY SPECIFIC INFORMATION REGARDING WHAT I OR OTHER
DEMOCRATIC SENATORS WERE PLANNING ON ASKING CERTAIN
JUDICIAL NOMINEES? >>LET ME CONTEXTUALIZE, BECAUSE
I AM LOOKING WHAT YOU ARE PUTTING UP HERE FIRST. WHAT IS UP THERE IS 100%
ACCURATE. THAT IS MY MEMORY. >>LET ME ASK YOU THIS —
>>NEVER KNEW OR EXPECTED, TRUE. NEVER EXPECTED ANYTHING UNTOWARD , TRUE. IF I HAD EXPECTED
ANYTHING UNTOWARD I WOULD’VE TALKED WITH JUDGE GONZALES. AND
I WOULD’VE ALREADY HAVE TALKED TO SENATOR HATCH. THAT IS ALL
TOO. >>THAT IS WHAT I ALREADY SAID.
DID MR. MIRANDA EVER PROVIDE YOU WITH HIGHLY SPECIFIC INFORMATION
REGARDING WHAT I OR OTHER DEMOCRATIC SENATORS WERE
PLANNING IN THE FUTURE TO ADD CERTAIN JUDICIAL NOMINEES?
>>ONE OF THE THINGS WE WOULD DO AS A WHITE HOUSE ON JUDICIAL
NOMINATIONS, I AM COMING TO YOUR ANSWER, BUT I WANT TO EXPLAIN.
WE WOULD MEET UP HERE AND THIS HAPPENS ON BOTH SIDES ALL OF THE
TIME, WITH TEAMS UP HERE ABOUT OUR JUDICIAL NOMINEES COMING UP.
HOW WILL WE GET THEM THROUGH? THERE IS A HEARING COMING UP.
DURING THOSE MEETINGS, OF COURSE IT WOULD BE DISCUSSED, I THINK
THIS IS WHAT SENATOR LEAHY WILL BE INTERESTED IN. THAT IS VERY
COMMON. IN PRESIDENT OBAMA’S ADMINISTRATION WHEN THEY HAD
SIMILAR MEETINGS, THEY DISCUSSED WHAT OTHER SENATORS WOULD BE
INTERESTED IN. THAT IS WHAT YOU DO IN MEETINGS. HIGHLY SPECIFIC , I AM NOT SURE WHAT YOU ARE
GETTING IT. >>I HAVE BEEN HERE OVER 40
YEARS. I KNOW WHAT BOTH REPUBLICAN AND DEMOCRATIC
ADMINISTRATIONS DO IN PREPARING. I AM NOT ASKING ABOUT THAT. I AM
ASKING YOU WHY BEFORE THIS , WHETHER MR. MIRANDA SENT YOU
AN EMAIL ON JULY 19, 2002 ASKING YOU AND ANOTHER BUSH OFFICIAL
WHY THEY WERE LOOKING INTO FINANCIAL TIES BETWEEN TWO
SPECIAL INTEREST GROUPS AND SETTLING ON A PARTICULAR
CONTROVERSIAL NOMINEE TO THE JUDICIAL CIRCUIT. AS A JUDGE,
YOU WOULD KNOW YOU RECEIVED A LOT OF CONTRIBUTIONS. DID MR.
MIRANDA SEND YOU AN EMAIL ASKING YOU WHY THE LEAHY PEOPLE WERE
LOOKING INTO HER FINANCIAL TIES?>>IS THAT WHAT THIS EMAIL IS?
>>I AM JUST ASKING YOU. >>CAN I TAKE A MINUTE TO READ
IT? >>OF COURSE. THIS WAS FOUR DAYS BEFORE THE
HEARING ON JULY 23rd.>>DID I SEND ANY OF THE EMAILS
ON THIS CHAIN? I DON’T THINK SO. I AM COPIED. IN ANY EVENT , IF HE SAID WHY ARE THE LEAHY
PEOPLE LOOKING INTO THIS , I DON’T HAVE A SPECIFIC
RECOLLECTION OF ANY OF THIS. IT WOULD NOT HAVE BEEN AT ALL
UNUSUAL, AND THIS HAPPENS ALL THE TIME I THINK, THE LEAHY
PEOPLE ARE LOOKING INTO THIS AND THE HATCH PEOPLE ARE LOOKING
INTO THAT. >>YOU SAY ALL OF THE TIME. TWO
DAYS BEFORE THE HEARING, HE TOLD YOU THAT THE DEMOCRATS WERE
PASSING AROUND A RELATED 60 MINUTES STORY AS INTEL THAT JUSTICE LEAHY WILL FOCUS ON
ALL THINGS MONEY. THAT APPEARS TO COME FROM A STOLEN EMAIL TO
ME, STOLEN BY THE REPUBLICAN STAFF MEMBER AND SENT TO ME THE
NIGHT BEFORE. THEN, GIVEN TO YOU THE NEXT MORNING. WERE YOU AWARE
THAT YOU WERE GETTING INFORMATION FROM MR. MIRANDA
THAT WAS STOLEN EMAIL? >>NOT AT ALL, SENATOR. IT WAS
PART OF WHAT APPEARED TO BE A STANDARD DISCUSSION. IT IS
COMMON SENATOR AT THE WHITE HOUSE, TO HEAR FROM OUR ALLEGED
AFFAIRS TEAM. IN FACT IN THIS PROCESS, THIS IS WHAT SENATOR X
IS INTERESTED IN AND THIS IS WHAT SENATOR WHITE IS INTERESTED
IN. >>IS A COMMON TO HAVE COPIES OF
A PRIVATE EMAIL SENT TO A PARTICULAR SENATOR?
>>COPIES OF A PRIVATE EMAIL? THAT WAS SENT TO A PARTICULAR
SENATOR? >>WOULDN’T THAT JUMP OUT AT YOU?
>>WHAT ARE YOU REFERRING TO? >>MR. MIRANDA IS TELLING YOU
ABOUT AN EMAIL SENT TO ME THE NIGHT BEFORE. THERE WOULD BE NO
WAY HE WOULD HAVE THAT UNLESS HE STOLE IT. DOES THAT RAISE ANY
QUESTION IN YOUR MIND? >>DID HE REFER TO THAT EMAIL IN
THIS? >>YES.
>>WHERE IS THAT, SENATOR? >>I WILL LET YOU READ IT.
>>I AM NOT SEEING WHAT YOU ARE REFERRING TOO.>>LET ME TAKE YOU TO WHEN YOU
DO HAVE. YOU DO HAVE THIS INFORMATION FROM MR. MIRANDA.
THE VERY LIMITED AMOUNT OF MATERIAL THE REPUBLICANS ARE
ALLOWING US TO SEE OF YOUR INFORMATION, AT LEAST THAT CAME
THROUGH. IN JANUARY 2003 , MR. MIRANDA FORWARDED YOU A
LETTER FROM ME AND OTHER JUDICIARY DEMOCRATS AND THEN
MAJORITY LEADER, TOM DASCHLE. THE LETTER WAS CLEARLY ADDRESSED
, IT HAD TYPOS AND IT WAS NOT SIGNED. SOMEBODY EVENTUALLY
LEAKED IT TO FOX NEWS. I AM NOT SURE WHO. I COULD GUESS. IT WAS
A PRIVATE LETTER. AT THE TIME I WAS SHOCKED OF ITS EXISTENCE.
HERE IS THE THING. YOU HAVE THE FULL TEXT OF MY LETTER IN YOUR
INBOX BEFORE ANYTHING HAD BEEN SAID ABOUT IT PUBLICLY. DID YOU
FIND IT AT ALL UNUSUAL TO RECEIVE A DRAFT LETTER FROM
DEMOCRATIC SENATORS TO EACH OTHER BEFORE ANY MENTION OF IT
WAS MADE PUBLIC?>>THE ONLY THING I SAID ON THE
EMAIL EXCHANGE IF I AM LOOKING AT IT CORRECTLY, SENATOR IS WHO
SIGNED THIS? WHICH WOULD IMPLY THAT I THOUGHT IT WAS A SIGNED
LETTER. >>IT WAS SENT TO YOU, WERE YOU
SURPRISED TO GET IT? IT IS OBVIOUSLY A DRAFT. IT HAS TYPOS.
WERE YOU SURPRISED THAT THE DRAFT LETTER CIRCULATED AMONG
DEMOCRATS ENDED UP IN YOUR INBOX? FROM MR. MIRANDA.
>>I THINK THE PREMISE OF YOUR QUESTION IS NOT ACCURATELY
DESCRIBING MY APPARENT UNDERSTANDING OF THE TIME. I
WOULD NOT HAVE SAID WHO SIGNED THIS , IF I THOUGHT IT WAS A DRAFT.
MY EMAIL SAYS WHO SIGNED THIS? >>YOU DIDN’T REALIZE WHAT YOU
HAD WAS A STOLEN LETTER SIGNED BY ME? AND IT HAD NOT BEEN MADE PUBLIC?
>>ALL I SEE THAT I SAID IS, WHO SIGNED THIS? THAT IS ALL I SEE.
>>LET ME ASK YOU SOME MORE. SO MUCH OF THIS CAME FROM MR.
MIRANDA. HE WAS THE REPUBLICAN STAFFER,
THAT WE KNOW NOW WAS STEALING THINGS. DID HE EVER ASK TO MEET
PRIVATELY WITH YOU IN AND OFF-SITE LOCATION OTHER THAN THE
WHITE HOUSE OR CAPITOL HILL? >>I THINK SOMETIMES, SENATOR
THE MEETINGS WITH SENATE STAFFERS AND WHITE HOUSE AND
JUSTICE DEPARTMENT’S — >>I AM ASKING ABOUT ONE
PARTICULAR ONE, MR. KAVANAUGH. >>SOMETIMES WE WOULD MEET AT
THE OG — DOJ, SOMETIMES WE MET OTHER WHERE — OTHER PLACES.
AGAIN, SENATOR I JUST WANT TO BE CLEAR HERE, IT IS VERY COMMON
WHEN YOU ARE IN JUDICIAL SELECTION PROCESS TO DETERMINE
WHAT ARE ALL THE SENATORS INTERESTED IN FOR AN UPCOMING
NOMINEE OR HEARING. THAT IS THE COIN OF THE REALM. SENATOR X IS
INTERESTED IN FOCUSING ON ADMINISTRATIVE LAW, SENATOR WHY
IS ASKING ABOUT ENVIRONMENTAL LAW, THIS SENATOR IS CONCERNED
ABOUT YOUR PAST WORK FOR THIS CLIENT. THAT IS A VERY COMMON
DISCUSSION. >>DID HE EVER ASK YOU TO MEET
HIM NOT AT THE WHITE HOUSE OR THE CAPITAL OR AT HIS HOME? —
BUT AT HIS HOME? >>I DON’T REMEMBER THAT.
>>DID HE EVER ASKED TO MEET YOU OUTSIDE OF THE WHITE HOUSE OR
THE CAPITAL? >>I CAN’T RULE THAT OUT, BUT
AGAIN THAT WOULD NOT HAVE BEEN TYPICAL.
>>DID HE EVER HAND YOU MATERIAL SEPARATELY FROM WHAT WOULD BE
EMAILED BACK AND FORTH? >>NOT REMEMBERING — IF YOU ARE
REFERRING TO SOMETHING PARTICULAR, I COULD ASK YOU THAT
— ANSWER THAT. >>DID YOU EVER RECEIVE
INFORMATION VIA MR. MIRANDA, INFORMATION MARKED CONFIDENTIAL THAT INFORMED YOU OF WHAT MY
STAFF WAS HEARING FROM OTHER DEMOCRATS?
>>I DON’T KNOW THE ANSWER TO THAT, SENATOR BUT AGAIN, IT IS
NOT ALWAYS THE CASE THAT THE PEOPLE, FOR EXAMPLE YEAR’S STAFF
AND SENATOR HATCH’S STAFF WERE WORKING AT ODDS. IT SEEMED LIKE
MANY TIMES THE STAFF WAS COOPERATING AT TIMES, NOT AT
OTHER TIMES, OBVIOUSLY. IT WOULDN’T HAVE RAISED ANYTHING IN
PARTICULAR IN MY MIND IF WE LEARNED THAT SENATOR LEAHY IS
CONCERNED ABOUT THIS. >>DID MY STAFF EVER SEND YOU
CONFIDENTIAL MATERIALS FROM SENATOR HATCH COMING FROM HIS
EMAIL? >>NOT THE LAST PART, I
CERTAINLY DID TALK TO YOUR STAFF WHEN WE WERE WORKING ON THE
AIRLINE BILL ON SEPTEMBER 20, 2001 AIRLINE BILL. I REMEMBER
BEING HERE LATE ALL NIGHT WITH YOUR STAFF. I AM SURE WE TALKED
ABOUT WHAT OTHER SENATORS HOT. THAT WAS THE AIRLINE BILL, AS
YOU RECALL SPEAKER HATCH WAS INVOLVED AND WE WERE UP THERE
WITH THE TEAM. I WORKED HARD WITH YOUR STAFF ON THAT. IT
STRUCK ME AS NOT UNCOMMON AT ALL TO BE TALKING WITH OUR TEAM
ABOUT WHAT SENATORS ON BOTH SIDES THINK. IT DIDN’T STRIKE ME
THAT IT WAS ALWAYS ARMED CAMPS. >>OFTENTIMES IT WAS NOT. HERE,
YOU ARE GETTING VERY PRIVATE DEMOCRATIC EMAILS. YOU WEREN’T
CONCERNED HOW MR. MIRANDA GOT THEM?
>>I GUESS I AM NOT SURE ABOUT YOUR PREMISE.
>>OR YOU AT ALL CONCERNED ABOUT WHERE MR. MIRANDA GOT SOME OF
THE MATERIAL HE WAS SHOWING YOU?>>I DON’T RECALL THAT, BUT ON
THE PREMISE OF YOUR LAST QUESTION I WANT TO STEP BACK TO
THAT. I AM NOT SURE I AGREE WITH THE PREMISE.
>>IF YOU SAW SOMETHING MARKED CONFIDENTIAL, WOULDN’T YOU
ASSUME THAT IS SOMETHING NOT BEING SHARED BACK AND FORTH?
>>UNLESS IT WAS SHARED. THIS IS THE THING. IF A STAFFER SAID
HERE IS WHAT WE ARE SENDING, YOU SHOULD BE AWARE OF THIS BECAUSE
WE ARE GOING TO BE OPPOSED TO THIS JUDICIAL NOMINEE. TO BE
CLEAR, IT SEEMED TO BE SOMETIMES THERE WERE JUDICIAL NOMINEES YOU
WERE OPPOSED TO AND SOMETIMES YOU WERE SUPPORTIVE AND OTHER
TIMES IN BETWEEN. THERE WOULD BE MESSAGES PAST BACK AND FORTH
WITH THE SHARING OF INFORMATION. THAT WAS VERY COOPERATIVE AS I
RECALL. YOU ARE TRANSPARENT WHEN YOU HAD PROBLEMS WITH THE
NOMINEE. WHEN YOU WERE SUPPORTIVE, YOU WERE AT THE MAY
19th EVENT AT THE WHITE HOUSE WHERE THE PRESIDENT ANNOUNCED
HIS FIRST NOMINEES. YOU WERE SUPPORTIVE OF MANY OF THEM.
>>I VOTED FOR A LOT OF REPUBLICAN NOMINEES, BOTH AT THE
SUPREME COURT , COURTS OF APPEAL AND THE
DISTRICT COURT. >>YES.
>>WHAT I AM OPPOSED TO WAS WHEN I WAS RAISING QUESTIONS ABOUT
FUNDING ISSUES GETTING FROM PEOPLE BEFORE HER COURT. THAT
MAY HAVE RAISED A RED FLAG THAT I HAD COME — SOME CONCERNS ABOUT HER. WHEN
YOU WORKED AT THE WHITE HOUSE, DID ANYONE EVER TELL YOU THEY
HAD A MOLE THAT PROVIDED THEM WITH SECRET INFORMATION RELATED
TO NOMINATIONS? >>I DON’T RECALL THE REFERENCE
TO A MOLE, WHICH SOUNDS HIGHLY SPECIFIC. IT IS CERTAINLY
COMMON, AGAIN AND THE PEOPLE BEHIND ME CAN REFER TO THIS. IT
IS COMMON FOR EVERYONE TO TALK TO EACH OTHER AT TIMES AND SHARE
INFORMATION, AT LEAST THIS WAS MY EXPERIENCE 20 YEARS AGO.
>>YOU NEVER RECEIVED AN EMAIL FROM A REPUBLICAN STAFF MEMBER
WITH INFORMATION CLAIMING TO COME FROM SPYING ON DEMOCRATS?
>>I AM NOT GOING TO RULE ANYTHING OUT, SENATOR. IF I DID,
I WOULDN’T HAVE THOUGHT THAT LITERAL.
>>WOULDN’T HAVE SURPRISED YOU? THAT IF YOU GOT AN EMAIL THAT IT
WAS RECEIVED FROM SOMEBODY SPYING —
>>IS THERE SUCH AN EMAIL, SENATOR?
>>WE HAVE TO ASK THE CHAIRMAN WHAT HE HAS IN HIS CONFIDENTIAL
MATERIAL. >>IF YOU ARE REFERRING TO
SOMETHING PARTICULAR, HERE IS WHAT I KNOW.
>>LET’S STOP A MINUTE HERE. REFERENCED TWICE IN YOUR 30
MINUTES, AND DON’T TAKE THIS OFF OF HIS TIME, YOU MADE REFERENCE
— YOU ARE TALKING ABOUT A PERIOD OF TIME THAT HE WAS WHITE
HOUSE COUNSEL. THAT MATERIAL IS AVAILABLE TO EVERYBODY.
>>SO THE MATERIAL THAT IS MARKED COMMITTEE CONFIDENTIAL IS
NOW PUBLIC AND AVAILABLE? IS THAT
WHAT YOU ARE SAYING? >>THAT IS WHAT THE CHAIRMAN
SAYS. WE HAVE A WHOLE NEW SERIES OF QUESTIONS.
>>NOT IF IT IS COMMITTEE CONFIDENTIAL.
>>YOU HAVE ACCESS TO IT. DON’T FORGET 80% OF THE MATERIAL WE
HAVE GOTTEN FROM THE LIBRARY IS ON THE WEBSITE OF THE JUDICIARY
COMMITTEE, SO THE PUBLIC HAS ACCESS TO IT.
>>I WANT JUDGE KAVANAGH TO HAVE ACCESS SO WE CAN ASKING THESE
QUESTIONS UNDER OATH AND HE CAN SEE THEM. I WOULD ASK, AND WE
MIGHT NEED ANOTHER ROUND, BUT I WOULD ASK THE CHAIRMAN TO LOOK
AT SOME OF THESE THAT ARE MARKED COMMITTEE CONFIDENTIAL WHICH
LIMITS THE ABILITY OF US TO ASK YOU SPECIFICALLY AND HAND YOU
THE SPECIFIC EMAILS. I WOULD STATE ON WHAT HAS BEEN PUBLIC —
>>LET ME ANSWER THAT FOR YOU. THERE IS ONLY ONE DEMOCRATIC
SENATOR WHO ASKED FOR ACCESS TO THAT AND HE GOT IT. IF YOU ARE
INTERESTED IN IT, YOU COULD HAVE BEEN ASKING EVER SINCE AUGUST
25th MAC. >>WE HAVE BEEN ASKING TO HAVE
THOSE MADE PUBLIC. I AM NOT AS INTERESTED IF I RECEIVE THIS IN A CLOSED
ROOM. I WANT JUDGE KAVANAGH TO SEE THE EMAILS WHICH CAME FROM
MR. MIRANDA .
>>GIVE US A CITATION OF THE DOCUMENTS AND WE WILL GET THEM
FOR YOU. >>THAT CONVERSATION UP THERE IS
TRUE. 100%.>>IT WOULD BE HELPFUL IF WE
ALLOWED THE NATIONAL ARCHIVES TIME TO COMPLETE THE REVIEW.
>>I JUST WANT TO REASSURE YOU SENATOR, BECAUSE YOU ARE ASKING
IMPORTANT QUESTIONS. I ASSURE YOU THAT WHAT YOU HAVE ON THE
BOARD IS 100% ACCURATE. >>CAN SOMEBODY MOVE IT SO WE
CAN SEE IT? >>I HAVE A CONCERN. THERE IS
EVIDENCE THAT MR. MIRANDA PROVIDED YOU WITH MATERIALS THAT
WERE STOLEN FROM ME. AND THAT WOULD CONTRADICT YOUR
PRIOR TESTIMONY. IT IS ALSO CLEAR FROM PUBLIC EMAILS, THAT
YOU HAD REASON TO BELIEVE MATERIALS WERE OBTAINED
INAPPROPRIATELY AT THE TIME. MR. CHAIRMAN, THERE ARE AT LEAST SIX
DOCUMENTS THAT YOU CONSIDER COMMITTEE CONFIDENTIAL THAT
DIRECTLY RELATE TO THIS. JUST LIKE THE THREE DOCUMENTS I
SHARED THAT ARE ALREADY PUBLIC. THESE OTHER SIX CONTAIN NO
PERSONAL INFORMATION OR PRESIDENTIAL RECORDS. THERE IS
SIMPLY NO REASON THEY CAN’T BE MADE PUBLIC. I HOPE THEY WILL BE
BEFORE THE NEXT ROUND. IT IS DIFFICULT TO ASK A QUESTION AND
I HAVE TO ASK REPUBLICANS FOR PERMISSION TO ASK THE QUESTION.
I CERTAINLY NEVER DID THAT. WHEN I WAS CHAIRMAN I DIDN’T DO THAT.
I ASKED YOU IN 2006 WHETHER YOU HAD SEEN ANY DOCUMENTS RELATED
TO PRESIDENT BUSH’S WIRETAPPING PROGRAM. OR, WHETHER YOU HAD
HEARD ANYTHING ABOUT IT. YOU ANSWERED THAT YOU LEARNED ABOUT
IT WITH THE REST OF US IN DECEMBER OF 2005 WHEN THE NEW
YORK TIMES REPORTED IT. I KNOW IT HAS BEEN 12 YEARS, SO HERE IS
THE VIDEO OF YOUR SWORN TESTIMONY. IT SHOULD BE ON THE TV SCREENS .
>>THE DOCUMENTS RELATED TO THE PRESIDENTS NSA WIRETAPPING
PROGRAM. >>SENATOR, I LEARNED THAT
PROGRAM WHEN THERE WAS A NEW YORK TIMES STORY WHERE THE
REPORTS OF THAT PROGRAM WHEN THE STORY CAME OVER THE
WIRE ON A THURSDAY NIGHT IN MID DECEMBER OF LAST YEAR.
>>YOU HAVE NOT SEEN ANYTHING OR HEARD ANYTHING PRIOR TO THE NEW
YORK TIMES ARTICLE? >>KNOW.
>>– NO. >>NOTHING AT ALL?
>>NOTHING AT ALL. >>CAN I AGAIN, DON’T TAKE THIS
TIME AWAY FROM HIM. AS FAR AS I KNOW IN 15 HEARINGS, I AM GOING
TO READ SOMETHING IN JUST A MINUTE, BUT PREFACE IT WITH
THIS. AS FAR AS I KNOW, IN 15 HEARINGS I HAVE BEEN INVOLVED IN
OF SUPREME COURT JUSTICES THERE HAS NEVER BEEN SUCH A VIDEO
SHOWN. SINCE THIS IS PRECEDENTIAL, I WANT TO READ THIS. THE USE OF A VIDEO AT
A CONFIRMATION IS HIGHLY IRREGULAR, BUT I SEE NO REASON
WHY MY COLLEAGUES CAN’T USE OF VIDEO THAT WAS PROVIDED I THE
NOMINEE HIMSELF IN RESPONSE TO THE SENATE QUESTIONNAIRE. I HAVE
BEEN ASSURED THE VIDEO IS FROM JUDGE KAVANAGH’S SUMMATION TO
THE COMMITTEE. BASED ON THIS ASSURANCE, WE HAVE ALLOWED THIS
VIDEO TO BE SHOWN . I WANT TO EMPHASIZE THAT I
EXPECT THE VIDEO TO BE USED FAIRLY. THE VIDEO CLIP SHOULD
NOT BE PRESENTED IN A WAY THAT DEPRIVES IT OF RELEVANT CONTEXT . THIS IS CONSISTENT WITH
REQUIREMENTS IN FEDERAL COURT. THAT IS WHY I WILL INSIST THAT
JUDGE KAVANAGH HAVE THE OPPORTUNITY BEFORE HE ANSWERS
THIS QUESTION TO REQUEST IF ANY ADDITIONAL VIDEO BE PLAYED THAT
IT BE PROVIDED AN APPROPRIATE CONTEXT. SO, JUDGE KAVANAGH I
WOULD ASK YOU IF MORE CONTEXT IS
NEEDED TO ADDRESS THE QUESTION? >>I DON’T THINK I HAVE HEARD
THE QUESTION YET, BUT I WILL LET YOU KNOW WHEN I HEAR THE
QUESTION. >>LET ME ASK YOU THIS, I WILL
REPEAT THE QUESTION AS BEFORE. YOU SAID YOU HEARD ABOUT THIS
WITH THE REST OF US. IN DECEMBER 2005. YOU SAID YOU HAD NO
KNOWLEDGE OF ANYTHING RELATED TO THIS UNTIL THE NEW YORK TIMES
ARTICLE. NOW, WE HAVE A DECLASSIFIED
INSPECTOR GENERAL REPORT THAT ON SEPTEMBER 17th, WHICH WAS BEFORE
THE NEW YORK TIMES ARTICLE , YOU ISSUED A MEMO ON
SURVEILLANCE OF THE WHITE HOUSE. IT HELPED FORM THE LEGAL
UNDERPINNINGS OF THE NSA WIRELESS TAPPING PROGRAM. WHEN
YOU WERE IN THE WHITE HOUSE IN 2001, DID YOU EVER WORK WITH
JOHN ON THE CONSTITUTIONAL IMPLICATIONS OF THE WIRELESS
PROGRAM? >>WE ARE TALKING ABOUT A LOT OF
DIFFERENT THINGS HERE. >>THE SURVEILLANCE PROGRAM.
>>THAT IS TALKING ABOUT A LOT OF DIFFERENT THINGS. WHAT YOU
WERE ASKING ABOUT RIGHT THERE WAS THE SPECIFIC — WHAT
PRESIDENT BUSH CALLED THE TERRORIST SURVEILLANCE PROGRAM.
>>WHICH IS A WARRANTLESS SURVEILLANCE PROGRAM.
>>ALONG WITH MANY OTHERS. YOU WERE ASKING ME ABOUT THE
TERRORIST SURVEILLANCE PROGRAM. THAT STORY AND THAT TESTIMONIES 100%
ACCURATE. THAT STORY WAS BROKEN IN THE NEW YORK TIMES. I HAD NOT
BEEN READ INTO THAT PROGRAM. WHEN IT CAME IN THE NEW YORK
TIMES, I ACTUALLY REMEMBER MY EXACT REACTION. THEN THAT
SATURDAY THE PRESIDENT DID A LIVE RADIO ADDRESS TO EXPLAIN TO
THE COUNTRY WHAT THAT PROGRAM WAS ABOUT. THERE WAS A HUGE
CONTROVERSY. EVERYONE WAS WORKING ON GETTING
THE SPEECH TOGETHER. YOU ASKED ME IF I LEARNED ABOUT IT BEFORE
THEN. I SAID NO AND THAT IS ACCURATE.
>>WHEN YOU WERE IN THE WHITE HOUSE, DID YOU EVER WORK WITH
JOHN YOU ON THE CONSTITUTIONAL IMPLICATIONS OF ANY WARRANTLESS
SURVEILLANCE PROGRAM? >>IN THE WAKE OF SEPTEMBER 11
BACK, — SEPTEMBER 11th , IT WAS ALL HANDS ON DECK. WE
WERE FORMING OUT ASSIGNMENTS AND WE WERE ALL INVOLVED. WHEN WE
CAME IN ON SEPTEMBER 12th, WE KNEW WE HAD TO WORK ON
EVERYTHING. OVERTIME, PEOPLE FIGURED OUT WHAT ISSUES THEY
WERE GOING TO WORK ON. WE HAD THE AIRLINE BILL AND I WAS UP
HERE ON SEPTEMBER 20 WHEN PRESIDENT BUSH SPOKE TO CONGRESS ABOUT THAT.
AFTER THAT WE WERE IN THE MEETING ROOM TOGETHER, YOU AND I
AND OTHERS WORKING ON THE AIRLINE BILL. THERE WERE OTHER
THINGS GOING ON, THE PATRIOT ACT WAS HAPPENING.
>>I WAS INVOLVED WITH ALL OF THOSE.
>>YES. >>I WANT TO KNOW IF YOU EVER
RAISED QUESTIONS ABOUT WARRANTLESS SURVEILLANCE?
>>I CAN’T RULE ANYTHING OUT. THERE WAS SO MUCH GOING ON IN
THE WAKE OF SEPTEMBER 11th, AS YOU RECALL. HERE BUT
PARTICULARLY IN THE WHITE HOUSE AND IN THE COUNCILS OFFICE. WE
HAD EIGHT OR NINE LAWYERS IN THEIR. THERE WERE SO MANY ISSUES
TO CONSIDER FOR THE PRESIDENT AND THE LEGAL TEAM. FOR
PRESIDENT BUSH, EVERY DAY FOR THE NEXT SEVEN YEARS WAS
SEPTEMBER 12 BACK — SEPTEMBER 12.
>>THE CHAIRMAN WRITES A LETTER ONE OF THE SENATORS ON AUGUST
16th OF THIS YEAR ASKING FOR DOCUMENTS RELATED TO THIS ISSUE
AND TO MAKE THEM PUBLIC. THEY ARE TO BE PUBLIC. IT IS NOT
FAIR TO ME AND IT IS NOT FAIR TO JUDGE KAVANAGH.
>>I THINK IF I HANDED HIM THE
EXACT DOCUMENTS, IT WOULD REFRESH HIS MEMORY. I WOULD ASK
AGAIN CAN I LOOK AT THAT BEFORE MY NEXT TERM. CAN WE MAKE THOSE
PUBLIC? >>YOU TELL US WHAT DOCUMENTS
YOU WANT AND I WILL MAKE THEM AVAILABLE TO YOU, BUT I CAN’T
SAY THEY CAN BE MADE PUBLIC. JUST AS I SAID LAST YEAR DURING
JUSTICE GORSUCH IS CONFIRMATION, I PUT A PROCESS IN PLACE THAT
ALLOWS COLLEAGUES TO OBTAIN THE PUBLIC RELEASE OF CONFIDENTIAL
DOCUMENTS FOR THE HEARING. ALL I ASK IS FOR THE COLLEAGUES
TO IDENTIFY THE DOCUMENTS THEY INTENDED TO USE AND I WOULD WORK
TO GET THE DEPARTMENT OF JUSTICE AND FORMER PRESIDENT BUSH TO
AGREE TO WAIVE RESTRICTIONS ON THE DOCUMENTS. SENATOR FEINSTEIN
SECURED THE PUBLIC RELEASE OF 19 DOCUMENTS LAST YEAR UNDER THIS
PROCESS AND SENATOR GORBACHEV SECURED THE RELEASE OF DOCUMENTS
THIS YEAR. IF MY COLLEAGUES BELIEVE OTHER DOCUMENTS SHOULD
HAVE BEEN MADE PUBLIC, THEY NEVER TOLD ME ABOUT THEM. LET US
KNOW WHAT YOU WANT AND YOU CAN GO AHEAD AND WE WILL GET THEM
FOR YOU. >>I WANT THE SAME THING I
REQUESTED IN AUGUST, ON AUGUST 16th , BECAUSE IT IS DIRECTLY
RELEVANT TO JUDGE KAVANAGH’S TESTIMONY, DIRECTLY RELEVANT TO
THE QUESTIONS I HAVE BEEN ASKING HERE AND RELEVANT TO HIS OWN
EMAILS FROM JOHN YOU. BEFORE MY NEXT TERM WE CAN TAKE A LOOK AT
THAT. >>WE WILL GET THEM FOR YOU FOR
MY — YOUR NEXT TERM. >>YOU SAID EVERYONE AGREES THAT
THE PRESIDENT HAS POWER UNCHECKED TO PARDON EVERY
VIOLATOR OF FEDERAL LAW. THE PRESIDENT CAN ISSUE A PARDON
IN EXCHANGE FOR A BRIBE, YES OR NO?
>>I THINK THAT QUESTION HAS BEEN LITIGATED BEFORE. I DON’T
WANT TO COMMENT ABOUT THAT. >>–
>>THERE ARE A COUPLE THINGS IN THAT QUESTION, WHAT IS THE
EFFECT OF THE PARDON AND THE OTHER QUESTION IS CAN YOU BE
SEPARATELY CHARGED WITH A BRIBERY CRIME, BOTH THE BRIBER
AND BRIGHT BE. THOSE ARE TWO DISTINCT QUESTIONS. YOU WOULD
WANT TO KEEP THEM SEPARATE AND THINKING OF A HYPOTHETICAL.
>>MR. CHAIRMAN, I GET INTERRUPTED
AN AWFUL LOT. I JUST WANT TO FINISH THIS.
>>I MADE SURE THAT IF THE TIMER — CAN GIVE HIM ANOTHER MINUTE.
>>GOD BLESS YOU. I WILL BE FOREVER THANKFUL. PRESIDENT
TRUMP CLAIMS HE HAS AN ABSOLUTE RIGHT TO PARDON HIMSELF. DOES
HE? >>THE QUESTION OF SELF PARDONS
IS SOMETHING I HAVE NEVER ANALYZED. IT IS A QUESTION I
HAVE NOT WRITTEN ABOUT, SO IT IS A HYPOTHETICAL QUESTION THAT I
CAN’T BEGIN TO ANSWER IN THIS CONTEXT AS A SITTING JUDGE AND
AS A NOMINEE TO THE SUPREME JET — SUPREME COURT.
>>DOES THE PRESIDENT HAVE THE ABILITY TO PARDON SOMEBODY IN
EXCHANGE FOR PROMISING THAT PERSON THEY WOULDN’T TESTIFY
AGAINST HIM? >>SENATOR, I AM NOT GOING TO
ANSWER HYPOTHETICAL QUESTIONS OF THAT SORT. THERE IS A GOOD
REASON FOR IT. WHEN JUDGES DECIDE, WE GET
BRIEFS AND RECORDS AND AN APPENDIX WITH ALL THE
INFORMATION. I NEVER DECIDE ANYTHING ALONE. I
AM IN A PANEL OF THREE. IF I AM CONFIRMED TO THE SUPREME COURT I
WOULD BE ON A TEAM OF NINE. >>THANK YOU MR. CHAIRMAN. I
HOPE FOR THE SAKE OF THE COUNTRY, THAT REMAINS A
HYPOTHETICAL QUESTION. >>I GAVE YOU AN EXTRA MINUTE, I
AM NOT GOING TO LET YOU RESERVE THE 25 SECONDS.
>>SENATOR GRAHAM. >>THANK YOU VERY MUCH. JULY 21,
1993, I DON’T WANT YOU TO HAVE TO LAY OUT A TEST IN THE
ABSTRACT , WHICH MIGHT DETERMINE WHAT
YOUR VOTE OR TEST WOULD BE IN A CASE YOU HAVE YET TO SEE THAT
MAY WELL COME BEFORE THE SUPREME COURT. THAT WAS WISE COUNSEL BY
SENATOR LEAHY IN THE GINSBERG CONFIRMATION. VERY DIRECTLY, DID
YOU EVER KNOWINGLY PARTICIPATE IN SPILLING ANYTHING FROM
SENATOR LEAHY OR ANY OTHER SENATOR?
>>NO. >>DID YOU EVER KNOW YOU WERE
DEALING WITH ANYTHING THAT WAS STOLEN PROPERTY?
>>NO NO. >>AS TO THE TERROR SURVEILLANCE
PROGRAM, DID YOU HELP CREATE THIS PROGRAM?
>>NO NO. >>DID YOU GIVE LEGAL ADVICE
ABOUT IT? >>NO.
>>WE ARE REFERRING TO THE SAME PROGRAM I WAS TALKING ABOUT.
>>YES. A RUN-THROUGH HERE, YOU ARE PROBABLY GOING TO GET 55 OR
54 VOTES I DON’T KNOW WHAT THE NUMBER WOULD BE. THERE ARE 11
UNDECIDED SENATORS BEFORE THE HEARING. THREE OF THEM ARE
REPUBLICANS, I LIKE YOUR CHANCES. EIGHT OF THEM ARE
DEMOCRAT , YOU CAN PLAY WITH ABOUT FIVE
OR SIX OF THEM. I JUST WANT YOU AND YOUR FAMILY TO KNOW IN OTHER
TIMES, SOMEONE LIKE YOU WOULD PROBABLY GET 90 VOTES. I WANT
YOUR DAUGHTERS TO KNOW THAT WHAT HAPPENED YESTERDAY IS UNIQUE TO
THE TIMES THAT WE LIVE IN. I WANT TO GIVE YOU A CHANCE TO SAY
SOME THINGS TO THE PEOPLE THAT HAVE ATTENDED THIS HEARING. I
THINK THERE IS A FATHER OF A PARKLAND STUDENT WHO WAS KILLED.
I THINK THERE IS A MOTHER OF A CHILD WHO HAS A TERRIBLE
HEALTHCARE PROBLEM. THERE ARE MANY OTHER PEOPLE HERE WITH
PERSONAL SITUATIONS. WHAT WOULD YOU LIKE TO SAY TO THEM, IF
ANYTHING ABOUT YOUR JUDGE AS A SUPREME COURT JUSTICE?
>>SENATOR, I UNDERSTAND THE REAL WORLD OF FACTS — EFFECTS
OF OUR DECISIONS. IN MY JOB AS A JUDGE FOR THE LAST 12 YEARS, I
HAVE GONE OUT OF MY WAY IN MY OPINIONS AND, OR ORAL ARGUMENTS
TO MAKE CLEAR TO EVERYONE BEFORE ME THAT I UNDERSTAND THE
SITUATION, CIRCUMSTANCES AND FACTS. FOR EXAMPLE, AS I WAS
SAYING TO SENATOR FEINSTEIN EARLIER, IN THE HELLER TO CASE
ABOUT THE FACTS IN DC — HELLER 2 CASE ABOUT THE FACTS IN DC. I
WANT TO ASSURE EVERYONE THAT I BASE MY DECISIONS ON THE LAW,
BUT I DO SO WITH AN AWARENESS OF THE FACTS AND AND AWARENESS OF
REAL-WORLD CONSEQUENCES — AN AWARENESS OF REAL-WORLD
CONSEQUENCES. I DO NOT LIVE IN A BUBBLE. I UNDERSTAND HOW
PASSIONATE PEOPLE FEEL ABOUT PARTICULAR ISSUES. I UNDERSTAND
HOW PERSONALLY PEOPLE ARE AFFECTED BY ISSUES. I UNDERSTAND
THE DIFFICULTIES THAT PEOPLE HAVE IN AMERICA. I UNDERSTAND
FOR EXAMPLE, THE SITUATION OF HOMELESS PEOPLE BECAUSE I SEE THEM ON A REGULAR
BASIS WHEN I AM SERVING MEALS. >>TELL ME ABOUT THAT. WHAT
INTERACTION YOU HAVE WITH HOMELESS PEOPLE?
>>SENATOR, I REGULARLY SERVE MEALS AT CATHOLIC CHARITIES WITH
FATHER JOHN WHO IS THE HEAD OF CATHOLIC CHARITIES IN DC. I HAVE
KNOWN HIM SINCE I WAS NINE YEARS OLD WHEN I WAS AN ALTAR BOY.
WHAT YOU LEARN , AS IT SAYS IN MATTHEW 25, I
TRIED TO FOLLOW THE EXAMPLE OF SERVING THOSE LESS FORTUNATE.
WHEN I WAS THIRSTY YOU GAVE ME DRINK, HUNGRY YOU FED ME, NAKED
YOU CLOTHED ME, SICK AND IN PRISON YOU VISITED ME. SIX GROUPS, THAT IS NOT EXCLUSIVE,
BUT THAT IS A GOOD PLACE TO START WITH YOUR CHARITABLE WORKS
AND YOUR PRIVATE TIME. >>DESCRIBE THE DIFFERENCE
BETWEEN BRETT KAVANAUGH , THE MAN AND BRETT KAVANAUGH , THE
JUDGE. >>AS A MAN I AM TRYING TO DO
WHAT I CAN IN COMMUNITY SERVICE. AS A DAD, COACH, VOLUNTEER,
TEACHER AND HUSBAND AND SERVING MEALS TO THE HOMELESS, THE ONE
THING YOU KNOW, WE ARE ALL GOD’S CHILDREN AND WE ARE EQUAL.
PEOPLE HAVE GOTTEN THEIR BECAUSE MAYBE THEY HAVE A MENTAL ILLNESS
OR A TERRIBLE FAMILY SITUATION. MAYBE THEY DIDN’T HAVE ANYBODY
TO CARE FOR THEM OR LOST A JOB AND HAD NO FAMILY. EVERY PERSON
YOU SERVE A MEAL TO IS JUST AS GOOD AS ME OR BETTER, FRANKLY
BECAUSE OF WHAT THEY HAVE TO GO THROUGH
ON A DAILY BASIS JUST TO GET A MEAL. YOU TALK TO THEM. THAT IS
THE OTHER THING. WHEN YOU ARE WALKING BY THE STREET, AND I
UNDERSTAND, I AM SURE I HAVE DONE THIS. I DON’T WANT TO SEND
— SOUND BETTER THAN ANYONE ELSE IN DESCRIBING THIS. YOU DON’T
NECESSARILY WANT TO LOOK AND ASK HOW IT IS GOING. WHEN YOU SERVE
MEALS TO THEM, YOU TALK TO PEOPLE THAT ARE HOMELESS. THEY
ARE JUST AS HUMAN AND GOOD AS ALL OF US. WE ARE ALL PART OF
ONE COMMUNITY. I THINK ABOUT THAT, AND I DON’T WANT TO SOUND
— I CAN ALWAYS DO MORE AND MORE. I KNOW I FALL SHORT.
FATHER JOHN HAS BEEN A BIG INFLUENCE ON HOW TO DO MORE. I
TUTOR AT THE JESUIT ACADEMY. I AM ON THE BOARD OF THE ACADEMY.
THOSE ARE DIFFERENT SITUATIONS. THOSE ARE BOYS FROM LOW INCOME
FAMILIES. I STARTED TUTORING UP THERE BECAUSE I WANTED TO DO
MORE TUTORING. I WANTED TO BE MORE INVOLVED. JUDGING IS
IMPORTANT, BUT I WANT TO BE MORE DIRECTLY INVOLVED IN THE
COMMUNITY. YOU DO ALL YOUR HOMEWORK THERE, BECAUSE YOU
DON’T WANT TO HAVE TO GO HOME AND DO ANYTHING ELSE THERE. YOU
GET THREE MEALS THERE AND DO YOUR HOMEWORK THERE. YOU SEE
THESE GREAT KIDS IN A STRUCTURED ENVIRONMENT AND YOU MAKE AN
EFFECT IN THEIR LIFE. THE TEACHERS AND COACHES THROUGHOUT
AMERICA CHANGE LIVES. FOR ME TO BE ABLE TO PARTICIPATE, YOU
CAN’T CHANGE EVERYTHING AT ONCE. BUT JUST CHANGING ONE LIFE, ONE
MEAL, ONE DAY AT THE SHELTER OR ONE KID THAT REMEMBERS SOMETHING
YOU SAID IN A TUTORING PROGRAM — IF WE ALL DID THAT MORE, AND
I KNOW I FALL SHORT TOO. I WANT TO DO MORE ON THAT FRONT. YOU
CAN MAKE A BIG DIFFERENCE IN PEOPLE’S LIVES. I BRING THAT
INTO THE JUDGING . I JUDGE BASED ON THE LAW, BUT
HOW DOES THAT AFFECT ME AS A JUDGE? JUST STANDING IN THE
SHOES OF OTHERS, WE COULD ALL BE THAT HOMELESS PERSON. WE COULD
ALL BE THAT KID WHO NEEDS A MORE STRUCTURED EDUCATIONAL
ENVIRONMENT. ONE OF THE THINGS I WAS TAUGHT BY MY MOM AND MY
SIXTH GRADE AND RELIGION TEACHER , CHRIS ABLE, AND FOOTBALL COACH
AND BASEBALL COACH, AND HE DROVE ME TO SCHOOL. AND HE IS NOW ON
THE BOARD OF WASHINGTON JESUIT ACADEMY WITH ME. ONE OF HIS
LESSONS IN TO KILL A MOCKINGBIRD IS TO STAND IN THE SHOES OF
OTHERS. I STILL HAVE THE TO KILL A MOCKINGBIRD WE USED IN SIXTH
GRADE. IT IS IN MY CHAMBERS. IT IS THE SAME COPY.
>>IS IT FAIR TO SAY THAT YOUR JOB AS A JUDGE IS NOT TO SO MUCH
STAND IN THE SHOES OF SOMEBODY YOU ARE NOT SYMPATHETIC TO, BUT
THE SHOES OF THE LAW? >>YOU ARE AWARE OF THE LAW — YOU STAND IN THE LAW, BUT YOU
HAVE TO BE AWARE OF YOUR DECISIONS. YOU CAN’T BE UNAWARE.
WHEN YOU WRITE AN OPINION, HOW WILL IT AFFECT PEOPLE. YOU NEED
TO UNDERSTAND HOW TO EXPLAIN. IT IS EXPLAINING, SUCH AN IMPORTANT
FEATURE. WHEN PEOPLE COME INTO THE COURTROOM, AND HOW YOU TREAT
LITIGANTS. WE HAVE ALL BEEN IN COURTROOMS WITH THE JUDGE WHO IS
ACTING A LITTLE TOO FULL OF BEING A JUDGE. WELL, WE HAVE ALL BEEN THERE. I
TRY NOT TO DO THAT. I CAN’T SAY I AM PERFECT. I TRY TO MAKE SURE
THE LITIGANTS UNDERSTAND I GET IT. WHETHER IT IS A CRIMINAL
DEFENDANT CASE — WE HAD A PRO SE CASE WHERE A LITIGANT COMES
IN AND ARGUES A PRO SE CASE, THAT NEVER HAPPENS IN OUR COURT.
IT WAS A GUY WHO SAID HE HAD BEEN CALLED THE N WORD
SUPERVISOR. HE IS ARGUING PRO SE IN AND WHETHER THE SINGLE USE OF
THE N WORD IN INSTITUTE’S — INSTITUTES — CONSTITUTE RACIAL
HOSTILE WORK ENVIRONMENT? I WROTE AN OPINION AND SAID YES.
IN DOING THAT I EXPLAINED THE HISTORY OF RACISM IN THIS
COUNTRY. AND HOW NO OTHER WORD IN THE ENGLISH LANGUAGE SHOWED
MORE POWERFULLY AND INSTANTLY OUR COUNTRY’S LONG
AND BRUTAL STRUGGLE AGAINST RACISM. I WROTE THAT IN THAT
OPINION AND I CITED TO KILL A MOCKINGBIRD IN THAT OPINION. I
WANTED TO MAKE CLEAR BY BRINGING THIS EXAMPLE UP THAT I
UNDERSTOOD HIS SITUATION. I TRIED TO UNDERSTAND WHAT THAT
WOULD BE LIKE. I DECIDED THE CASE BASED ON THE LAW, BUT I
UNDERSTOOD THE PRO SE LITIGANT. THE POINT BEING, I TRIED TO BE
AWARE — >>HAVE YOU EVER MADE A LEGAL
DECISION THAT WAS PERSONALLY UPSETTING TO YOU?
>>I AM SURE I HAVE. THAT IS WHAT JUSTICE KENNEDY TALKED
ABOUT IN TEXAS VERSUS JOHNSON. IN CASE PEOPLE DID KNOW WHAT I
WAS REFERRING TO IN THAT CASE, THAT IS THE FLAGBURNING CASE.
JUSTICE KENNEDY IS IN THE MATURITY — MAJORITY WITH OTHER
JUSTICES AND SAYS A LAW AGAINST FLAGBURNING IS UNCONSTITUTIONAL
TO THE FIRST AMENDMENT. THAT OBVIOUSLY TOWARD JUSTICE KENNEDY
AND BOTHERED HIM BECAUSE HE IS SUCH A PATRIOT. BUT, HE STILL
RULED THE WAY HE DID BECAUSE HE READ THE FIRST AMENDMENT TO
COMPEL THAT RESULT. THAT IS WHY HE WROTE THAT GREAT CONCURRENCE
IN THAT CASE. THAT CONCURRENCE IS SUCH A GREAT MODEL FOR
JUDGING. IT IS A GREAT MODEL OF INDEPENDENCE AND A GREAT MODEL
TO YOUR POINT SENATOR GRAHAM. WE FOLLOW THE LAW, BUT WE ARE AWARE
. YOU ARE A BETTER JUDGE IF YOU ARE AWARE.
>>I JUST WANT TO SAY THIS TO MY COLLEAGUES. EVERYTHING HE SAID
HAS BEEN VERIFIED BY THE PEOPLE THAT KNOW HIM THE BEST. I CAN’T
SAY I HAVE READ 307 OF YOUR OPINIONS. I CAN TELL YOU WITHOUT
HESITATION, I HAVE NOT. I DID NOT READ ANY OF YOUR OPINIONS.
WHAT I CHOSE TO DO WAS LOOK AT THE PEOPLE THAT KNEW HIM THE
BEST. I THINK BOB BENNETT WHO DEFENDED PRESIDENT CLINTON
DURING THE IMPINGEMENT — IMPEACHMENT, SAID BRETT IS A
JUDGE IS JED — JUDGE. HE IS AN ALL-STAR IN BOTH HIS
PROFESSIONAL AND PERSONAL LIFE. I HAVE YET TO FIND ANYBODY THAT
I FIND CREDIBLE, OR ANYBODY AT ALL THAT INDICATES YOU ARE UNFAIR TO
LITIGANTS. I HAVE YET TO FIND A COLLEAGUE THAT THOUGHT YOU WERE
A POLITICIAN IN A ROBE. BUT YOU ARE A REPUBLICAN, IS THAT TRUE?
>>YES.
>>I AM GLAD TO HEAR YOU SAY THAT. IT MAKES A LOT OF SENSE
GIVEN WHO YOU WORKED FOR. >>I WILL LET YOU FINISH YOUR
QUESTION. >>YOU HAVE WORKED FOR A LOT OF
REPUBLICANS. >>YES. PRESIDENT BUSH. YES.
>>I REMEMBER , I WILL TELL YOU WHAT I
REMEMBER WHEN SHE LEAVES. SO I LAST — ASKED ELENA KAGAN ABOUT
A STATEMENT THAT WAS MADE — HE WAS ONE OF THE DEFENDERS OF
PRESIDENT CLINTON’S DURING THE IMPEACHMENT HEARINGS. SOMEWHERE
IN HERE, I HAVE GREG CRAIG’S STATEMENT ABOUT KAGAN. DO YOU KNOW HIM?
>>I KNOW OF HIM. >>HERE’S WHAT — KAGAN WAS
PROGRESSIVE AND COMES FROM THE PROGRESSIVE
SIDE OF THE SPECTRUM ACCORDING TO RONALD KLEIN. THE FIRST WAS
GREG CRAIG. I HAD AN EXCHANGE WITH JUSTICE KAGAN WHEN SHE WAS
THE NOMINEE. I AM NOT TRYING TO TRICK YOU, BECAUSE I DON’T HAVE
ANYTHING ON GREG. HE SAID ON MAY 16th YOU ARE LARGELY AGGRESSIVE
IN THE ROLE OF OBAMA HIMSELF. DO YOU AGREE WITH THAT?
>>IN TERMS OF MY POLITICAL VIEWS, I HAVE BEEN A DEMOCRAT
ALL MY LIFE. I HAVE WORKED FOR TWO DEMOCRAT PRESIDENTS. THAT IS
WHAT MY POLITICAL VIEWS ARE. WHEN ASKED WHETHER YOU CONSIDER
YOUR POOL MEDICAL VIEWS PROGRESSIVE, YOU SAID THEY WERE GENERALLY
PROGRESSIVE. THAT IS TRUE. I REALLY APPRECIATE WHAT SHE SAID
BECAUSE I EXPECT PRESIDENT OBAMA TO GO TO SOMEBODY LIKE ELENA
KAGAN WHO IS PROGRESSIVE, CHAIRS — SHARES HIS GENERAL VIEW OF
JUDGING AND HAPPENS TO BE HIGHLY QUALIFIED. PRESIDENT OBAMA NOMINATED
JUSTICE SOTO MAYOR BECAUSE HE WANTED SOMEBODY WHOSE PHILOSOPHY
OF JUDGING WAS HIS, WHICH IS APPLIED TO THE LAW AND
CONSTITUTIONAL PRINCIPLES AND BE READY TO ADOPT THEM TO A
MODERN CONTEXT. PRESIDENT OBAMA NOMINATED SOTO MEYER BECAUSE HE
WANTED SOMEBODY WHOSE PHILOSOPHY OF JUDGING WAS HIS. I EXPECT
THAT TO HAPPEN. IF DONALD TRUMP IS PRESIDENT IN 2020, HE WILL BE OUR NEXT PRESIDENT.
IF IT IS SOMEBODY ELSE, I EXPECT THAT TO HAPPEN TO MY COLLEAGUES
ON THE OTHER SIDE. WHAT DO YOU REALLY EXPECT? YOU SHOULD
CELEBRATE, EVEN THOUGH YOU DON’T VOTE FOR HIM, AND I DON’T KNOW
WHY YOU WOULDN’T, THE QUALITY OF THE MAN CHOSEN BY PRESIDENT OBAMA. ELENA KAGAN
AND SODA MEYER CAME FROM THE — SOTO MEYER CAME FROM THE
PROGRESSIVE SIDE AND ARE HIGHLY QUALIFIED AND GOOD DECENT
PEOPLE. LET ME SEE IF I CAN FIND THE VOTE TOTALS. MISS KAGAN GOT
63 VOTES AND SODA MEYER GOT 68. THAT IS GOING TO BOTHER ME THAT
YOU DON’T GET THOSE NUMBERS, BUT WHAT BOTHERS ME IS THEY SHOULD
HAVE GOTTEN 90. THEY SHOULD HAVE GOTTEN 95. ANTHONY KENNEDY GOT
97. ANTHONY SCALIA GOT 98. RUTH GINSBURG GOT 96. WHAT IS
HAPPENING? BETWEEN THEN AND NOW , ADVICE AND CONSENT HAS TAKEN
ON A DIFFERENT MEANING. IT USED TO BE THE UNDERSTANDING OF THIS
BODY THAT ELECTIONS HAVE CONSEQUENCES AND YOU WOULD
EXPECT THE PRESIDENT WHO WON THE ELECTION TO PICK SOMEBODY OF
THEIR PHILOSOPHY. I PROMISE YOU THAT WHEN STROM THURMOND VOTED
FOR RUTH GINSBURG HE DID NOT AGREE WITH HER LEGAL PHILOSOPHY.
I DOUBTED THAT SENATOR LEE AGREED WITH JUSTICE GLIA. I HAVE
VOTED FOR EVERYONE PRESENTED SINCE I HAVE BEEN HERE UNLESS I
FIND THEM TO BE — AND I FIND THEM TO BE HIGHLY QUALIFIED
COMING FROM BACKGROUNDS I WOULD EXPECT THE PRESIDENT IN QUESTION
TO CHOOSE FROM. AS TO YOUR QUALIFICATIONS, HOW LONG HAVE
YOU BEEN A JUDGE? >>I HAVE BEEN JUDGE FOR 12
YEARS. >>HOW MANY OPINIONS HAVE YOU
WRITTEN? >>I HAVE WRITTEN OVER 300
OPINIONS. >>DO YOU THINK THERE IS A LOT
WE CAN LEARN FROM THOSE OPINIONS IF YOU SPEND TIME LOOKING AT
THEM? >>YES. I AM VERY PROUD OF MY
OPINIONS . I HOPE PEOPLE DON’T READ ABOUT
THE OPINIONS, I HOPE THEY READ THEM. I AM PROUD OF THEM.
>>YOU WERE NOMINATED BY PRESIDENT TRUMP ON JULY 9th, MY
BIRTHDAY. I THOUGHT THAT WAS A PRETTY GOOD BIRTHDAY PRESENT,
SOMEBODY THAT THINKS LIKE I DO. I THINK I MAY HAVE SOMETHING TO
DO WITH THAT. HE NOMINATED YOU AT 9:00. BY 9:20, JUDGE SCHUMER
SAID HE WILL OPPOSE IT, BY 925 — BY 9:25 ANOTHER SENATOR SAID
HE REPRESENTS A DIRECT THREAT TO AMERICANS. I WILL OPPOSE HIS
NOMINATION. AT 9:55, BRETT KAVANAUGH’S RECORD AS JUDGE AND
LAWYER IS CLEARLY HOSTILE TO HEALTHCARE AND OPPOSE THE CFD
CORPORATE ACCOUNT. THANKS PRESIDENT TRUMP. HE IS ABOVE THE
LAW. ON AND ON AND ON. NANCY PELOSI, BERNIE SANDERS, BRETT
KAVANAGH CANNOT BE CONFIRMED TO THE SUPREME COURT, IT WILL HAVE
A PROFOUNDLY NEGATIVE REACT — AFFECT FOR DECADES TO COME. ALL
I CAN SAY IS WITHIN ONE HOUR AND 18 MINUTES OF YOUR NOMINATION,
YOU BECAME THE BIGGEST THREAT TO DEMOCRACY. IN THE EYES OF SOME
OF THE MOST PARTISAN PEOPLE IN THE COUNTRY WHO WOULD HOLD KAGAN
AND SODA MEYER UP AS HIGHLY QUALIFIED AND WOULD CHALLENGE
ANY REPUBLICAN TO VOTE AGAINST THEM. YOU LIVE IN AS UNUSUAL
TIMES AS I DO. YOU SHOULD GET MORE THAN 90 VOTES, BUT YOU
WON’T. I AM SORRY IT HAS GOTTEN TO WHERE IT HAS. IT HAS NOTHING
TO DO ABOUT YOU. IF YOU DON’T MIND, AND YOU DON’T HAVE TO,
WHAT DID YOU TELL YOUR CHILDREN YESTERDAY? ABOUT THE HEARING?>>I WILL TELL YOU WHAT THEY TOLD
ME. THEY GAVE ME A BIG HUG AND SAID GOOD JOB, DADDY. MARGARET , UNFORTUNATELY WENT TO BED AND
MADE A SPECIAL TRIP DOWN AND GAVE ME A SPECIAL HUG.
>>I WISH WE COULD HAVE A HEARING WHERE THE NOMINEES KIDS
COULD SHOW UP. IS THAT ASKING TOO MUCH? WHAT KIND OF COUNTRY
HAVE WE BECOME? NONE OF THIS HAPPENED EVEN A COUPLE OF YEARS
AGO. IT IS GETTING WORSE AND WORSE AND WORSE. ALL OF US HAVE
AN OBLIGATION TO CORRECT IT WHERE WE CAN. ROE V WADE, ARE
YOU FAMILIAR WITH THE CASE? >>I AM, SENATOR. CAN YOU IN 30
SECONDS GIVE ME THE GENERAL HOLDING OF ROE V WADE?
>>AS ELABORATED UPON IN PLANT PARENTHOOD, A WOMAN HAS A
CONSTITUTIONAL RIGHT AS INTERPRETED BY THE SUPREME COURT
UNDER THE CONSTITUTION TO OBTAIN AN ABORTION UP TO THE POINT OF
VIABILITY, SUBJECT TO REASONABLE REGULATIONS BY THE STATE SO LONG
AS THOSE REASONABLE REGULATIONS DO NOT CONSTITUTE AN UNDUE
BURDEN ON THE WOMAN’S RIGHT. >>OKAY. AS TO HOW THE SYSTEM
WORKS, CAN YOU SIT DOWN WITH YOU AND FOUR OTHER JUDGES AND
OVERRULE ROE V WADE JUST BECAUSE YOU WANT TO?
>>ROE V WADE IS AN IMPORTANT
PRESIDENT OF THE SUPREME COURT. >>DON’T YOU HAVE TO HAVE A
CASE? WHAT ARE YOU DOING FOR LUNCH? LET’S OVERRULE ROE V WADE
. IT DOESN’T WORK LIKE THAT. >>I SEE WHAT YOU ARE ASKING.
THE WAY CASES COME UP TO US IN THAT CONTEXT OR ANOTHER CONTEXT
— >>CAN I GIVE YOU AN EXAMPLE TO
MAKE IT QUICKER? SOME STATE SOMEWHERE OR SOME TOWN SOMEWHERE
PASSES A LAW THAT RUNS IN THE FACE OF ROE , SOMEONE WILL OBJECT AND GO TO
LOWER COURTS. EVENTUALLY, IT MIGHT COME UP TO THE SUPREME
COURT CHALLENGING THE FOUNDATIONS OF ROE V WADE. IT
WOULD TAKE A LEGISLATIVE ENACTMENT TO MAKE THAT HAPPEN,
RIGHT? >>THAT IS CORRECT.
>>IF THERE WAS AN ACTION BY A STATE OR LOCAL GOVERNMENT
CHALLENGING ROW, AND IT CAME BEFORE THE SUPREME COURT WOULD
YOU LISTEN TO BOTH SIDES? >>I LISTEN TO BOTH SIDES IN
EVERY CASE. I HAVE FOR 12 YEARS.>>WHEN IT COMES TO OVERRULING A
LONG-STANDING PRESIDENT OF THE COURT, IS THERE A FORMULA YOU
USE? >>FIRST OF ALL, YOU START WITH
THE NOTION OF PRESIDENT. — PRECEDENT PRECEDENTS. THIS HAS
BEEN CONFIRMED OVER 45 YEARS INCLUDING IN PLANNED
PARENTHOOD WHERE THEY CONSIDERED WHETHER TO OVERRULE AND
REAFFIRMED AND APPLIED ALL THE FACTORS THAT IMPORTANTLY BECAME
PRESIDENT PRESIDENT MATT — THERE ARE FACTORS YOU CONSIDER
WHEN YOU ARE CONSIDERING ANY PRECEDENTS.>>CITIZENS UNITED — IF
SOMEBODY SAID CITIZENS UNITED HAS BEEN HARMFUL TO THE COUNTRY
AND MADE A RECORD THAT THE EFFECTS OF CITIZENS UNITED HAS
EMPOWERED ABOUT 20-30 PEOPLE TO RUN ALL THE ELECTIONS, IN SOME
STATE OR LOCALITY SOMEWHERE PASSED A BAN ON SOFT MONEY AND
IT GOT TO THE COURT, WOULD YOU AT LEAST LISTEN TO THE ARGUMENT
THAT CITIZENS UNITED NEEDS TO BE REVISITED?
>>. PRESIDENT — PRECEDENT IS AN
PORT AND, BUT YOU LISTEN TO ALL ARGUMENTS.
>>WHERE WERE YOU ON SEPTEMBER 11, 2001?
>>I WAS IN MY THEN OFFICE AND THEN AFTER THE FIRST BUILDING WAS HIT
I WAS IN THE COUNSEL’S OFFICE AND THE SECOND FLOOR OF THE WEST
WING FOR THE NEXT FEW MINUTES, THEN WE WERE ALL TOLD TO GO DOWN
TO THE BOTTOM OF THE WEST WING. THEN WE WERE ALL EVACUATED. I
THINK THE SLOT WAS — THOUGHT WAS 593 WAS HEADED TO
THE WHITE HOUSE OR HERE. SECRET SERVICE WAS HUSTLING US OUT.
THEY PANICKED AND STARTED SCREAMING AT US. SPRINT, RUN AND
WE SPRINTED OUT. MY WIFE WAS A FEW STEPS AHEAD OF ME. SHE WAS
PRESIDENT BUSH’S PERSONAL AIDE AT THE TIME. WE SPRINTED OUT.
SHE WAS WEARING A BLACK AND WHITE CHECKED SHIRT, I REMEMBER.
WE SPRINTED OUT THE FRONT GATE INTO LAFAYETTE PARK. NO IPHONES , OUR CELL PHONES DIDN’T WORK.
WE WERE JUST ALL OUT THERE. I REMEMBER SOMEHOW SEEING ON TV
DOWN ON CONNECTICUT AVENUE , I WAS WITH SARAH TAYLOR WHO
WORKED AT THE WHITE HOUSE. WE WERE WATCHING WHEN THE TWO
BUILDINGS FELL. >>SO WHEN SOMEBODY SAYS POST
9/11 THAT WE HAVE BEEN AT WAR AND IT IS CALLED THE WAR ON
TERRORISM, DO YOU GENERALLY AGREE WITH THAT CONCEPT?>>I DO, SENATOR BECAUSE
CONGRESS PASSED THE AUTHORIZATION FOR USE OF
MILITARY FORCE WHICH IS STILL IN EFFECT. THAT WAS PASSED ON
SEPTEMBER 14, 2001, THREE DAYS LATER.
>>LET’S TALK ABOUT THE LAW ON MORE. IS THERE A BODY OF LAW
CALLED THE LAW OF ARMED CONFLICT?
>>YES. >>IS THERE A BODY OF LAW CALLED
THE BASIC CRIMINAL LAW? >>ARE THERE DIFFERENCES BETWEEN
THOSE TWO BODIES OF LAW? >>YES, SENATOR.
>>FROM AN AMERICAN CITIZEN’S POINT OF VIEW DO YOUR
CONSTITUTIONAL RIGHTS FOLLOW YOU? IF YOU ARE IN PARIS, DOES
THE FOURTH AMENDMENT PROTECT YOU AS AN AMERICAN FROM YOUR OWN
GOVERNMENT? >>FROM YOUR OWN GOVERNMENT,
YES. >>IF YOU ARE IN AFGHANISTAN, DO
YOUR CONSTITUTIONAL RIGHT PROTECT YOU AGAINST YOUR OWN
GOVERNMENT? >>IF YOU ARE AN AMERICAN IN
AFGHANISTAN YOU HAVE CONSTITUTIONAL RIGHTS AGAINST
THE U.S. GOVERNMENT. >>ISN’T THERE ALSO A LONG
SETTLED LAW THAT GOES BACK TO A CASE THAT SAYS AMERICAN
CITIZENS THAT COLLABORATE WITH AN ENEMY OUR ENEMY COMBATANTS?
>>THEY CAN BE. THEY ARE SOMETIMES CRIMINALLY
PROSECUTED AND SOMETIMES TREATED IN THE MILITARY.
>>LET’S TALK ABOUT CAN BE. >>UNDER SUPREME COURT
PRECEDENT. >>THERE WAS A SUPREME COURT
PRECEDENT THAT SAID AMERICAN CITIZENS THAT COLLIDED —
COLLABORATED WITH [NULL] GOVERNMENT WERE PROSECUTED. IS
THAT CORRECT?>>YES.
>>I THINK SOME OF THEM WERE EXECUTED.
>>YES. >>IF ANYBODY DOUBTS, THERE IS A
LONG-STANDING HISTORY THAT YOUR CONSTITUTIONAL RIGHTS FOLLOW YOU
WHEREVER YOU GO, BUT YOU DON’T HAVE A CONSTITUTIONAL RIGHT TO
TURN ON YOUR OWN GOVERNMENT AND COLLABORATE WITH THE ENEMY OF
THE NATION. YOU WILL BE TREATED DIFFERENTLY. WHAT IS THE NAME OF
THE CASE IF YOU CAN RECALL, THAT REAFFIRMED THE CONCEPT THAT YOU
COULD HOLD ONE OF OUR OWN AS AN ENEMY COMBATANT IF THEY WERE
ENGAGED IN ENEMY ACTIVITIES? EVERY AMERICAN CITIZEN NEEDS TO
KNOW THEY HAVE A CONSTITUTIONAL RIGHT, BUT IT DOES NOT GIVE YOU THE RIGHT
TO COLLABORATE WITH THE ENEMY. THERE IS A BODY OF LAW WILL
DEVOLVE DEVELOP — WELL-DEVELOPED WELL BEFORE 9/11
THAT UNDERSTOOD THE BASICS BETWEEN THE LAW OF ARMED
CONFLICT AND DO YOU UNDERSTAND THAT?
>>IF YOU ARE CONFIRMED, AND I BELIEVE YOU WILL BE, WHAT IS
YOUR HOPE WHEN ALL OF THIS IS SAID AND DONE AND YOUR TIME IS
UP, HOW WOULD YOU LIKE TO BE REMEMBERED?
>>A GOOD DAD, GOOD JUDGE —
>>A GOOD HUSBAND. >>I THINK IS GETTING THERE. —
>>A GOOD HUSBAND. >>THANKS DIANE, I THINK YOU
HELPED HIM. IT WILL BE BETTER FOR YOU TONIGHT.
>>I OWE YOU. A GOOD SON, I WILL QUICKLY ADD. A GOOD FRIEND. I
THINK ABOUT THE PILLARS OF MY LIFE. BEING A JUDGE, BEING A
TEACHER — ANYWAY THIS ENDS UP, I WILL
CONTINUE TEACHING. COACHING, I MENTIONED . THAT IS A HUGE PART OF MY
LIFE. SENATOR KENNEDY TOLD ME TO KEEP COACHING. I WILL FOLLOW
THAT. VOLUNTEERING AND BEING A DAD AND A SON AND A HUSBAND AND
BEING A FRIEND. I TALKED ABOUT MY FRIENDS YESTERDAY. I DIDN’T
EXPECT THAT I WOULD GET CHOKED UP.
>>THAT WAS WELL SAID. I JUST RAN OUT OF TIME.
>>I CAN GO ON, AS YOU KNOW. I WILL STOP THERE.
>>WE ARE ABOUT READY TO BREAK FOR LUNCH. IT WILL BE 30
MINUTES. BEFORE I DO THAT, I HAVE LETTERS OF THAT SENATOR
FEINSTEIN ASKED ME TO PUT IN THE RECORD — 70 LETTERS FROM PEOPLE
IN OPPOSITION TO YOUR NOMINATION, AND WE ALSO HAVE
LETTERS IN SUPPORT OF JUDGE KAVANAGH FROM HUNDREDS OF MEN
AND WOMEN ACROSS THE COUNTRY HOLDING DIVERSE POLITICAL VIEWS.
THEY STRONGLY SUPPORT HIS CONFIRMATION WITHOUT OBJECTION.
THOSE WILL ALSO BE ENTERED INTO THE RECORD. I WANT TO EXPLAIN
THE EXCHANGE I HAD WITH SENATOR LEAHY, SO PEOPLE DON’T THINK
THAT IS SOMETHING I DID ON MY OWN. WE HAD PREVIOUSLY SENT OUT
A LETTER AND ONLY ONE SENATOR UP TO THAT
POINT HAD TAKEN ADVANTAGE OF THE LETTER TO BE ABLE TO ASK FOR
DOCUMENTS THAT WERE COMMITTEE CONFIDENTIAL. THE ONLY THING I HAVE DONE FOR
SENATOR LEAHY THAT WASN’T ALREADY IN THAT LETTER WAS TO
REMIND PEOPLE THAT WE DID THE SAME THING FOR THE GORSUCH
NOMINATION TO THE SUPREME COURT. IT IS A POLICY THAT SENATOR
LEAHY, WHEN HE WAS CHAIRMAN OF THE COMMITTEE FOLLOWED AND SO
THE ONLY COURTESY WAS EXTENDED TO SENATOR LEAHY WAS THE FACT HE
DIDN’T MAKE THE REQUEST BY THE TIMELINE THAT WAS IN THE LETTER,
WHICH I THINK WAS AUGUST 25th GO. WE WILL ADJOURN 30 MINUTES
— FOR LUNCH BREAK. WE WILL BE BACK IN EXACTLY 30 MINUTES. IF
NOT, JUDGE KAVANAGH WE WILL LET YOU KNOW IF IT WILL BE A LITTLE
LATER, BECAUSE YOU NEVER KNOW WHAT HAPPENS IN THE UNITED
STATES SENATE WHEN YOU HAVE A VOTE.>>LIVE COVERAGE OF THE
WASHINGTON POST. THIS IS THE SECOND DAY FOR BRETT KAVANAUGH
BEING THE NEXT SUPREME COURT JUSTICE. WE WILL BRING YOU
CONTINUED LIVE COVERAGE WHEN THEY COME BACK IN
ABOUT HALF HOUR. WE WILL BE HERE ALL DAY LONG AS THEY GO POSSIBLY
INTO THE NIGHT. THE COMMITTEE CHAIRMAN SAYS THEY MAY GO AS
LONG AS 12 HOURS TODAY. IT IS THE FIRST OPPORTUNITY FOR
SENATORS TO QUESTION JUDGE KAVANAGH PUBLICLY. I AM JOINED
BY ROBERT BARNES A SUPREME COURT REPORT. THANK YOU BOTH FOR BEING
HERE. >>HIGHLIGHTS AND BIG TAKEAWAYS
SO FAR. WERE DEMOCRATS ABLE TO GAIN ANY TRACTION ON THE ISSUES
THEY CARE ABOUT THIS MORNING? >>I DON’T THINK A WHOLE LOT. I
THINK JUDGE KAVANAGH IS VERY POLISHED. HE HAS — HE HAS BEEN
THROUGH THIS CONFIRMATION PROCESS BEFORE. HE PREPARED
OTHERS AS YOU HEARD FOR THEIR JUDICIAL CONFIRMATION HEARINGS.
HE KNOWS WHAT HE IS DOING. I THINK HE TRIED VERY QUICKLY
UNDER SOME GENTLE QUESTIONING FROM CHAIRMAN GRASSLEY TO GET
ACROSS THAT HE IS INDEPENDENT. ONE OF THE BIGGEST QUESTIONS
ABOUT HIM IS HE GOING TO BE BEHOLDING TO PRESIDENT TRUMP?
THERE ARE POTENTIAL LEGAL ISSUES COMING UP ABOUT THE
INVESTIGATION OF THE PRESIDENT. HE TRIED TO SHOW HIS
INDEPENDENCE QUICKLY. HE TRIED ON THE BIG ISSUE OF ABORTION TO
SAY I AM NOT GOING TO COMMIT TO ANYTHING. HE DID IT IN A WAY
THAT TRIED TO MAKE IT SOUND AS IF HE WAS KEEPING AN OPEN MIND. HE PROMISED TO KEEP
AN OPEN MIND. HE TALKED ABOUT ROE V WADE AND SUBSEQUENT
DECISIONS OF THE SUPREME COURT THAT GUARANTEE A WOMAN’S RIGHT
TO ABORTION, AS HE PUT IT PRECEDENT UPON PRECEDENT.
WHETHER OR NOT THAT WILL ASSUAGE DOUBTS ABOUT HIM ON THAT
ISSUE, PROBABLY NOT. IT WAS AN ATTEMPT TO SHOW HE HEARD,
ESPECIALLY SENATOR FEINSTEIN. >>WE HAVE ONLY HEARD FROM TWO
DEMOCRATS AND THREE REPUBLICANS. THERE ARE 21 SENATORS ON THIS
COMMITTEE. THAT IS STILL A LONG WAY TO GO. RIGHT OUT OF THE
GATE, AS SOON AS THAT FIRST DEMOCRAT, DIANNE FEINSTEIN GOT
HER OPPORTUNITY TO ASK QUESTIONS , SHE WENT THROUGH A RANGE OF
TOPICS INCLUDING ABORTION. LET’S HEAR AN EXCERPT OF HER EXCHANGE
WITH JUDGE KAVANAGH. >>I UNDERSTAND THE IMPORTANCE
PEOPLE ATTACH TO THE ROE V WADE DECISION TO THE PLANNED
PARENTHOOD VERSUS CASEY DECISION. I DON’T LIVE IN A
BUBBLE. I LIVE IN THE REAL WORLD. I UNDERSTAND THE
IMPORTANCE OF THE ISSUE. >>MY STAFF JUST PASSED ME A
NOTE. LET ME READ IT TO YOU BECAUSE I THINK IT IS GOOD. HAVE
YOUR VIEWS ABOUT RATHER ROE V WADE IS SETTLED CHANGED SINCE
YOU WERE IN THE BUSH WHITE HOUSE?
>>I WILL TELL YOU WHAT MY VIEWS ARE. I AM NOT SURE WHAT IS
REFERRING TO ABOUT BUSH WHITE HOUSE. I WILL TELL YOU WHAT MY
VIEW RIGHT NOW IS. IT IS AN IMPORTANT PRECEDENT IN THE
SUPREME COURT THAT HAS BEEN REAFFIRMED ANYTIME. THIS IS THE
POINT I WANT TO MAKE THAT IS IMPORTANT, PLANNED PARENTHOOD
VERSUS CASEY REAFFIRMED ROE V WADE AND DID SO CONSIDERING
DECISIVE FACTORS. CASEY NOW BECOMES A PRECEDENT ON
PRECEDENT. IT IS NOT AS IF IT IS JUST A RUN-OF-THE-MILL CASE
THAT WAS DECIDED AND NEVER BEEN RECONSIDERED. CASEY SPECIFICALLY
RECONSIDERED IT, APPLIED THE DECISIVE FACTORS AND DECIDED TO
REAFFIRM IT. THAT MAKES CASEY A PRECEDENT ON TRAN 17.
>>THERE IS JUDGE KAVANAGH TALKING ABOUT ABORTION.
EUGENE, DID YOU GET ANY CLOSER TO UNDERSTANDING HIS PERSPECTIVE
AND WHAT HE MIGHT DO ON THE SUPREME COURT?
>>NOT REALLY. I THOUGHT HE COMMUNICATED HOW IMPORTANT
PRECEDENT WAS TO HIM . THAT WAS HELPFUL TO SOME OF THE MORE
DEMOCRATIC LAWMAKERS. THE REALITY IS, WE KNOW MANY
CONSERVATIVES SUPPORT HIM WITH THE HOPE THAT HE IS GOING TO
RULE AND — IN WAYS THAT WILL MAKE ABORTIONS MORE DIFFICULT TO
OBTAIN. HE LEFT SOME OPEN SPACE OR WIGGLE ROOM IN TERMS OF HOW
HE IS GOING TO RULE IN THE FUTURE. HE CERTAINLY MADE IT
VERY CLEAR THAT HE HAS BEEN PAYING ATTENTION, AND TO NO
SURPRISE TO ALL OF THE CASES THAT HAVE
BEEN DECIDED BEFORE THAT WILL FACTOR HEAVILY INTO HIS
DECISION. >>YOU BRING UP A GOOD POINT.
THERE ARE WAYS TO RESTRICT ABORTION, EVEN IF YOU DON’T
OVERTURN ROE V WADE. >>THAT’S RIGHT. THAT IS WHAT
MOST PEOPLE WOULD THINK WOULD HAPPEN. THERE ARE A NUMBER OF
RESTRICTIONS. STATES ALL THE TIME PASS ESTROGENS ON ABORTION
AND THEY COME TO THE SUPREME COURT. REMOTE — REMEMBER CHIEF
JUSTICE SAID THE SAME THING, ROE V WADE IS SETTLED LAW. SINCE
HE HAS BEEN ON THE COURT, THE COURT HAS NOT OVERTURNED ROE V
WADE. THE CHIEF JUSTICE HAS VOTED FOR EVERY RESTRICTION THAT
HAS COME BEFORE THE COURT. THE MOST RECENT DECISION — CASE WAS
ABOUT A LAW FROM THE STATE OF TEXAS THAT IMPOSED NEW
REQUIREMENTS ON DOCTORS WHO PERFORM ABORTIONS AND NEW
REQUIREMENTS OF CLINICS WHERE THEY ARE PERFORMED. THE COURT
RULED 5-3, JUSTICE SCALIA HAD DIED, SO THERE WERE ONLY EIGHT
MEMBERS. THEY RULED 5-3 THAT THOSE WERE JUST THE PRETEXT FOR
TRYING TO MAKE IT MORE DIFFICULT TO OBTAIN AN ABORTION. IT
VIOLATED THE COURT’S RULING ON PUTTING UNDUE BURDEN ON A
WOMAN’S RIGHT. JUSTICE KENNEDY JOINED THE LIBERALS IN THE
MAJORITY IN THAT CASE. CHIEF JUSTICE ROBERTS WAS IN THE
MINORITY, HE WOULD HAVE ALLOWED THAT LOT TO STAY IN PLACE. OF
COURSE, IT IS JUSTICE KENNEDY’S REPLACEMENT THAT WE ARE TALKING
ABOUT HERE. HE WAS REALLY THE PIVOTAL JUDGE IN THAT CASE.
>>A 5-3 DECISION. A COURT WITH NEIL GORSUCH ON IT AND PERHAPS
WITH JUSTICE KAVANAGH COULD IN FACT BE A 5-4 DECISION GOING THE
OTHER WAY. >>THAT IS RIGHT.
>>– I WANT TO BRING UP SOMETHING SENATOR LEAHY SPENT A
LOT OF TIME TALKING ABOUT. THIS IS A QUESTION OF STOLEN MATERIALS THAT REPUBLICAN
STAFFERS TOOK FROM HIM AS WELL AS OTHER MEMBERS OF THE
COMMITTEE AND SHARED. HE WAS TRYING TO GET A SENSE FROM JUDGE
KAVANAGH, AND HAD BEEN ASKED ABOUT THIS BEFORE IF HE WAS
AWARE THEY WERE STOLEN MATERIALS. AND SHOULD HE HAVE
BEEN AWARE. CAN YOU EXPLAIN THIS?
>>I THINK IT IS DIFFICULT BECAUSE FOR ONE THING, SENATOR
LEAHY WASN’T TERRIBLY CLEAR AND LAYING IT OUT. IT WAS VERY CLEAR
THAT KAVANAGH DIDN’T WANT TO ANSWER DIRECTLY ABOUT IT. I
THOUGHT THE WHOLE THING GOT MUSHY AND SENATOR LEAHY IS GOING
TO TRY TO EXPLAIN LATER MORE ABOUT THIS CASE. IT IS BASICALLY
, THERE ARE ISSUES BETWEEN DEMOCRATS ON THE COMMITTEE AND
KAVANAGH ABOUT HIS TESTIMONY AT HIS PREVIOUS CONFIRMATION
HEARING. THEY THINK HE WASN’T COMPLETELY FORTHCOMING ABOUT
THIS ISSUE AND ALSO ABOUT WHAT ROLE HE PLAYED IN THE WHITE
HOUSE ON CERTAIN POLICIES , LIKE THE WAR ON TERRORISM AND
DETAINEES. I THINK WE WILL SEE MORE OF THAT AS THE DAY GOES ON.
THE DEMOCRATS FEEL THEY DIDN’T GET THE WHOLE STORY FROM HIM
LAST TIME. THEY ARE GOING TO PUSH HIM VERY HARD THIS TIME. I
DO THINK IN A WAY, IT IS AN ARCANE ISSUE. IT IS OFF WHAT THE
PUBLIC CARES THE MOST ABOUT. BUT IT IS IMPORTANT TO THE SENATORS.
>>RIGHT AFTER THAT THE REPUBLICAN WHO IS ASKING
QUESTIONS PUT IT VERY DIRECTLY. DID YOU KNOW THESE WERE STOLEN
MATERIALS? HE WAS ABLE TO SAY NO. DO YOU THINK THE DEMOCRATS
SUCCEEDED AT ALL TODAY IN GETTING MORE INFORMATION ABOUT
THAT TIME IN THE BIOS — BUSH WHITE HOUSE? AND YOU SEE THEM
ABLE TO MAKE MORE INROADS? >>I DON’T THINK THEY GOT MORE
INFORMATION AT A SIGNIFICANT LEVEL AS THEY WANTED. THEY DID
SUCCEED IN PUTTING FORWARD THE NARRATIVE THAT THERE ARE MORE
QUESTIONS AND GAPS IN WHAT PEOPLE KNOW ABOUT KAVANAGH THAN
THEY WOULD NORMALLY HAVE IN SOMEONE WHO GETS TO THIS POINT
IN THE PROCESS. I THINK WHAT THEY HOPE TO COMMUNICATE TO THE
AMERICAN PUBLIC IS THAT WE JUST DON’T KNOW AS MUCH ABOUT THIS
NOMINEE AS WE WOULD LIKE TO KNOW. AND IT IS CONCERNING BECAUSE HIS
RULINGS WILL AFFECT THE ENTIRE COUNTRY AND THEY WOULD LIKE TO
HAVE MORE INFORMATION ON HOW HE SEES THINGS IN THE
PAST THAN THEY CURRENTLY DO. WHETHER OR NOT CONSERVATIVES
AGREE WITH THAT OR NOT, IS ACTUALLY CLEAR. IT IS CLEAR THEY
DON’T AGREE WITH IT. I THINK WHAT THE DEMOCRATS ARE GOING FOR
RIGHT NOW IS PROVING POPULAR OPINION.
>>WE SAW A VIDEO BEING PLAYED DURING THE HEARING. THAT SEEMED
TO GET THE SENATORS ALL IN A TIZZY. WHY IS THAT SUCH A BIG
DEAL?>>THE SENATE DOESN’T CHANGE
VERY QUICKLY. IT DOES THINGS IN ITS OWN WAY. ANY CHANGE SEEMS TO
BE A BIG CHANGE.>>DO YOU ALSO THINK THE
REPUBLICANS DON’T WANT TO USE THIS AS AN OPPORTUNITY TO HAVE
DEMOCRATS PLAY THIS VIDEO IN A WAY THAT COULD DRAMATIZE IT
ANYMORE? >>I THINK THAT IS TRUE. WE ARE
ONLY, AS YOU SAY JUST SCRATCHED THE SURFACE OF THE QUESTIONING.
I THOUGHT SENATOR GRAHAM HAD QUESTIONS THAT WERE SMART AND
WAS A WAY TO LET KAVANAGH SHOW HIS EXTENSIVE LEGAL BACKGROUND,
TO SHOW HE DEALS WITH THESE ISSUES ALL OF THE TIME. HE ASKED
THE NAME OF CASES AND ASKED IF HE REMEMBERED OTHER CASES. THE
JUDGE IS WELL-VERSED IN THIS KIND OF LAW. IT PLAYS TO HIS
STRENGTHS I THOUGHT.>>SENATOR FEINSTEIN
COMPLEMENTED HIS ABILITY TO FILIBUSTER. SHE WENT BACK INTO
HIS HISTORY AND HIS PHILOSOPHICAL LEANINGS. AS WE
WATCH THE NEXT ROUNDS OF QUESTIONING UNFOLD, DO YOU EXPECT THIS QUESTION OF
EXECUTIVE AUTHORITY AND POWER TO KEEP COMING UP? WILL THAT BE
CRUCIAL? THE DEMOCRATS MAKE ANY HEADWAY? IF YOU ARE A DEMOCRAT ASKING QUESTIONS THREE HOURS IN,
YOU HAVE TO WONDER HOW MUCH THEY THINK ABOUT WHAT HAS ALREADY
BEEN TREAD. >>I DON’T THINK THEY THINK
ABOUT IT A LOT. I THINK EACH SENATOR
WANTS TO ASK CERTAIN THINGS. I THINK THEY THINK IT IS IMPORTANT
TO CONTINUALLY PUT HIM ON THE RECORD ABOUT THIS ISSUE AS MUCH
AS THEY CAN. I THINK IT IS A REAL CONCERN, NOT ONLY FOR THEM.
THIS IS ONE I THINK THE PUBLIC UNDERSTANDS THE WELL. IT IS NOT
AN ARCANE ISSUE. IT IS ONE THAT IS IN THE FOREFRONT OF THE
NATIONAL DEBATE RIGHT NOW. I THINK IT IS SOMETHING YOU WILL
HEAR A LOT MORE OF. I GET THE FEELING, I DON’T KNOW ABOUT THE
TWO OF YOU, BUT I GET THE FEELING THAT EITHER KAVANAGH IS
A LITTLE MORE FORTHCOMING THAN JUSTICE GORSUCH WAS AT HIS
HEARING, OR AT LEAST HE IS BETTER AT MAKING IT APPEAR THAT
HE IS. THERE WAS A STUDY THAT CAME OUT THAT SHOWED JUSTICE
GORSUCH WAS THE LEAST FORTHCOMING JUSTICE IN THE LAST
50 YEARS AT HIS CONFIRMATION. SOMEHOW IT FEELS TO ME LIKE
KAVANAGH IS TALKING MORE AND ENGAGING IN THE CONVERSATION
MORE WITH THE SENATORS. MAYBE THAT IS FILIBUSTERING. MAYBE THE
MORE TIME HE USES, THE LESS TIME THEY HAVE FOR ANSWERING
QUESTIONS. I THINK THIS HEARING SO FAR
FEELS A LITTLE DIFFERENT THAN THE GORSUCH ONE DID.
>>WE HAVE TO LET YOU GO IN JUST A MOMENT SO YOU CAN GET BACK TO
REPORTING. WHAT ARE THE TOP THINGS YOU WILL BE WATCHING FOR,
THE TOP PEOPLE YOU WILL BE WATCHING TO QUESTION JUDGE
KAVANAGH OVER THE NEXT COUPLE OF HOURS?
>>I THINK THERE WILL BE A LOT OF QUESTIONING ON CAMPAIGN
FINANCE AND HIS VIEWS ON THAT, WHICH HE IS VERY SKEPTICAL OF
LAWS THAT RESTRICT CAMPAIGN CONTRIBUTIONS. THAT IS A BIG
ISSUE THAT DEMOCRATS WILL PAY A LOT OF ATTENTION TO. AS WE SAY,
I DON’T THINK THEY ARE NEARLY THROUGH WITH ABORTION OR PROBING
HIS VIEWS ON THE PRESIDENT AND EXECUTIVE PRIVILEGE. I THINK
THOSE WILL BE THINGS WE HEAR THROUGHOUT THE DAY AND NIGHT,
I’M AFRAID. >>THANK YOU ROBERT BARNES,
THANK YOU SO MUCH. WE WILL LET HIM GET BACK TO WORK. WE WILL
KEEP EUGENE HERE, THOUGH. WE ARE GOING TO GO TO CAPITOL HILL
WHERE OUR COLLEAGUE IS REPORTING FROM INSIDE THE HEARING ROOM.
THANK YOU SO MUCH FOR STEPPING OUT TO TALK WITH US. I WANT TO
GET A SENSE FROM YOU OF HOW THE ATMOSPHERE FEELS TODAY VERSUS
YESTERDAY. WE HAVE SEEN SOME PROTESTS AND DISRUPTIONS. I HAVE
SEEN PHOTOS ON TWITTER AND IT LOOKS LIKE THE PUBLIC AREA HAS
BEEN CLEARED OUT. WHAT IS GOING ON INSIDE THE ROOM?
>>YOU ARE DEFINITELY RIGHT, BUT IT
IS LESS CHAOTIC HERE TODAY THAN IT WAS YESTERDAY. IT SEEMED LIKE
THE ENTIRE HEARING WAS PEPPERED WITH PROTESTS THROUGHOUT. WE
HAVE HAD A HANDFUL OF DEMONSTRATORS LOUDLY RAKE OUT
AND BE SUBSEQUENTLY HAULED OUT. THE NUMBERS ARE FEWER. WE KNOW
CAPITOL POLICE TOLD US YESTERDAY ABOUT 70 PEOPLE WERE ARRESTED
FOR DEMONSTRATING DURING THE HEARING. THE NUMBER SO FAR HAS
BEEN MUCH LESS. IT IS QUIETER, THE SEATS ARE A LITTLE EMPTIER.
THE FLOW INTO THE PUBLIC AUDIENCE HAS BEEN SLOWER. WE
DON’T KNOW IF THAT IS INTENTIONAL OR NOT. WE ARE
DIGGING INTO THESE LEGAL NITTY-GRITTY’S FROM YESTERDAY.
YESTERDAY WAS MORE OF THE SHOW AND THE SETTING OF THE TABLE OF
THE ARGUMENTS AND MESSAGING AROUND HIS NOMINATION. TODAY,
THE SENATORS ARE DIVING INTO THESE ISSUES OF ABORTION, OF
EXECUTIVE POWER, OF GUN RIGHTS AND HYPOTHETICALS OF WHAT
KAVANAGH WOULD DO SHOULD HE BE CONFIRMED AS A SITTING SUPREME
COURT JUSTICE. THAT IS WHY YOU ARE SEEING A LITTLE BIT
DIFFERENT ATMOSPHERE. WE WILL SEE WHAT HAPPENS LATER
IN THE HEARINGS. >>A GREAT QUESTION COMING IN
FROM ONE OF OUR VIEWERS WANTING TO KNOW ABOUT THE DISCRETION OF
CONFIDENTIAL INFORMATION, COMMITTEE CONFIDENTIAL INFORMATION THAT
THE COMMITTEE HAS ACCESS TO BUT WE, THE PUBLIC DO NOT. CAN
DEMOCRATS USE THAT AND WE SEE A TIP OF THE HAND THERE BETWEEN
LEAHY AND GRASSLEY AS THEY WERE GRAPPLING OVER WHAT COULD BE
SHARED PUBLICLY? >>EXACTLY, THAT IS WHAT WE SAW,
ACTUALLY ONE OF THE MORE CONTENTIOUS EXCHANGES WE SAW
DURING THE MORNING OF THE CONFIRMATION HEARINGS. THIS HAS
BEEN A SIMMERING, ANGER FILLED PART OF THE PROCESS. WHAT IS
GOING ON RIGHT NOW IS THAT THE JUDICIARY COMMITTEE HAS NEARLY A
200,000 PAGE COLLECTION OF DOCUMENTS FROM HIS TIME DURING A
COUNCIL IN THE GEORGE W. BUSH WHITE HOUSE. THE COMMITTEE AND
SENATORS CAN SEE IT, BUT THE PUBLIC CANNOT HAVE ACCESS TO THOSE
DOCUMENTS BECAUSE THEY HAVE BEEN MARKED AS COMMITTEE
CONFIDENTIAL. SO FAR SENATORS ARE ADHERING TO THAT COMMITTEE
CONFIDENTIAL BASIS, BUT DEMOCRATS HAVE SAID THERE IS
IMPORTANT INFORMATION IN THOSE COMMITTEE CONFIDENTIAL DOCUMENTS
THAT THE PUBLIC SHOULD BE ABLE TO GET TO SEE. BECAUSE AS WE SAW
IN THE HEARING EARLIER, THEY CAN’T TALK FULLY ABOUT WHAT IS
IN THE DOCUMENTS IF THEY ARE STILL IN THE PRIVATE STATUS.
THAT IS THE CONTENTIOUS EXCHANGE WE SAW THAT BROKE OUT EARLIER
TODAY WHEN SENATOR PATRICK LEAHY OF VERMONT SEEMED TO STRONGLY
IMPLY THAT THERE IS EVIDENCE IN THOSE DOCUMENTS. WE ARE MORE
LIKELY TO HEAR ABOUT THIS LATER TODAY. SENATOR GRASSLEY HAS
RESPONDED THAT FIRST OF ALL, THERE ARE MORE PAGES AVAILABLE
FOR KAVANAGH’S NOMINATION THAN FOR ANY OTHER SUPREME COURT
JUSTICE IN HISTORY. AND THAT 80% OF THE PAPERWORK IS PUBLIC. ONLY
THE SMALLER PERCENTAGE OF THAT REMAINS PRIVATE. DEMOCRATIC
SENATORS, SHOULD THEY WANT TO USE THE COMMITTEE CONFIDENTIAL
DOCUMENTS DURING THE HEARING, THEY COULD HAVE ASKED THE
COMMITTEE IN ADVANCE FOR PERMISSION. ONLY ONE DID.
>>FINAL QUESTION FOR YOU BEFORE YOU GET BACK INTO THE HEARING
ROOM , AND GET A LITTLE FOOD BEFORE
YOU GO BACK IN FOR THIS MARATHON DAY. WHO ARE YOU GOING TO BE
WATCHING IN THE QUESTIONS THAT COME UP IN THE NEXT COUPLE OF
ROUNDS, AND WHAT ISSUES DO YOU THINK DEMOCRATS AND POSSIBLY
REPUBLICANS WILL BE MOST FOCUSED ON?
>>I AM REALLY GOING TO BE WATCHING CORBETT. THEY HAVE CONCERNS THAT
DURBIN WILL BE ABLE TO PIN DOWN KAVANAGH ON THESE CONTENTIOUS
ISSUES. DURBIN HAS MANY OF THE SAME INTEREST THAT SENATOR LEAHY
HAS. AND WILL FOLLOW THE SAME QUESTIONING LINE THAT HE DID. HE
WILL TALK ABOUT THESE IMPLICATIONS THAT KAVANAGH
MISLED SENATORS DURING HIS CONFIRMATION HEARING MORE THAN A
DECADE AGO. BEFORE HIS CONFIRMATION TO THE DC COURT OF
APPEALS. IF YOU GO BACK TO THE STOLEN DOCUMENTS ISSUE THAT WE
DISCUSSED, THAT WAS THE ROOT OF THE CONTENTIOUS EXCHANGE WITH SENATOR LEAHY,
SENATOR DURBIN WAS THE PRIMARY VICTIM OF THE STOLEN DOCUMENTS.
THOSE STOLEN DOCUMENTS CAME FROM SENATOR DURBIN AND SENATOR TED
KENNEDY OF MASSACHUSETTS. I THINK IT IS FAIR TO SAY SENATOR
DURBIN HAS A PERSONAL INTEREST IN THAT ISSUE AS WELL. WE WILL
BE WATCHING SENATORS CORY BOOKER AND HARRIS WHO ARE WIDELY SEEN
AS PRESIDENTIAL CONTENDERS IN 2020. THEIR LINE OF QUESTIONING,
REMEMBER THE SENATOR THAT HAS BEEN ASKING EVERY JUDICIAL
NOMINEE UNDER OATH WHETHER THEY HAVE EVER BEEN ACCUSED OF A
SEXUAL HARASSMENT OR MISCONDUCT. OBVIOUSLY, EVERYONE HAS
RESPONDED NO. THAT SHOULD BE A DRAMATIC MOMENT IN THE HEARING.
>>THANK YOU SO MUCH FOR SPENDING SOME TIME WITH US.
THANKS FOR OUR TECH TEAM FOR MAKING THAT HAPPEN. IT IS NOT
EASY TO GET ALL THE SIGNALS TOGETHER.
>>I WANT YOU TO REFLECT ON WHAT WE JUST HEARD FROM THE HEARING
ROOM. SOME OF THE SAME PLAYERS YOU MENTIONED THAT YOU ARE
WATCHING. DICK DURBIN IS SOMETHING WE HAVE NOT TALKED
ABOUT. HE IS NOT ONE OF THESE NO OFFENSE, YOUNG PEOPLE WHO IS
TRYING TO SHAKE UP THE COMMITTEE. HE IS KNOWN FOR
HAVING A VERY HUMAN WAY OF TALKING TO PEOPLE. HIS QUOTES OFTEN GO VIRAL
BECAUSE THEY ARE PUT IN A STRAIGHTFORWARD LANGUAGE THAT
GETS TO THE HEART OF THE MATTER AND MAKES SENSE TO PEOPLE. IS
THAT A FAIR ASSESSMENT? >>I THINK IT IS. IT ALSO SPEAKS
TO THE BROADNESS OF THE DEMOCRATIC PARTY AND ONE OF THE
BIGGER CHALLENGES THAT WE SEE PEOPLE HAVING RIGHT NOW. ARE
THEY GOING TO CONTINUE TO PUT FORWARD LAWMAKERS THAT CONNECT WITH LIBERAL VOTERS IN
THE HEARTLAND OR THE SUBURBS OF THE MAJOR CITIES, OR ARE THEY
GOING TO PUT FORWARD LAWMAKERS AND CANDIDATES WHO REFLECT THE
CHANGING DEMOGRAPHICS OF THE COUNTRY AND SPEAK TO YOUNGER
YOUNGER — YOUNGER MORE DIVERSE SEGMENTS OF THE POPULATION. THEY
ARE REALIZING THE DEMOCRATIC PARTY HAS TO PUT FORWARD A BROAD
RANGE OF PEOPLE IN THEIR PARTY TO CONNECT WITH VOTERS FROM
DIFFERENT ASPECTS OF THE AMERICAN POPULATION, WITH THE
HOPE THAT THEY WILL VOTE IN NOVEMBER AND OVERTURN THE HOUSE
AND KEEP THINGS IN CONTROL ALL THE WAY TO 2020.
>>YESTERDAY MORNING WHEN WE SAW THE INITIAL DEMOCRATIC PROCESS
DISRUPTION, THEY WERE TRYING TO TALK ABOUT DOCUMENTS THEY HADN’T
GOTTEN. IT WASN’T THE MOST SENIOR MEMBERS THAT INTERRUPTED.
IT WAS SOME OF THE NEWEST NUMBERS TO THE COMMITTEE, AND IS
ONE OF THE YOUNGEST MEMBERS OF THE COMMITTEE WHO MAY HAVE SOME
POLITICAL ASPIRATIONS. WE SAW ANOTHER WOMAN AND RICHARD
BLUMENTHAL, ONE OF THE MEN ALSO SPEAK UP. THEY SEEM TO BE AWARE
OF THAT VERY THING YOU ARE TALKING ABOUT. THE WAY THE
QUESTIONING GOES, IT IS DONE BY SENIORITY AND IT IS DONE BY HOW
LONG YOU HAVE BEEN ON THE COMMITTEE. THAT IS THE FLOW IF
YOU ARE WONDERING WHY PEOPLE ARE GETTING TO SPEAK AT A CERTAIN
TIME. I WANT TO GET BACK TO THIS ISSUE, EXECUTIVE POWER AND WHERE
DID KAVANAGH STANDS ON THAT. LET’S TAKE A LISTEN TO AN
EXCHANGE THAT HAPPENED EARLIER THIS MORNING ON THAT TOPIC.
>>I THINK THE FIRST QUALITY OF A GOOD JUDGE IN OUR
CONSTITUTIONAL SYSTEM IS INDEPENDENCE. INDEPENDENCE COMES
DIRECTLY FROM ARTICLE 3 OF THE CONSTITUTION. THE INDEPENDENCE OF THE FEDERAL
JUDGES IS GUARANTEED I THE FRAMERS IN OUR LIFE TENURE, IN
OUR PROTECTION FROM PAY REDUCTION. SO BECAUSE WE HAVE
LIFE TENURE WE ARE INDEPENDENT AND IMMUNE FROM POLITICAL OR
PUBLIC PRESSURE. I THINK THE FIRST THING THAT MAKES A GOOD
JUDGE IS INDEPENDENCE, NOT BEING SWAYED BY POLITICAL OR PUBLIC
PRESSURE. THAT TAKES SOME BACKBONE, SOME FOR ADDITIONAL —
JUDICIAL FORTITUDE. THE GREAT MOMENTS IN AMERICAN JUDICIAL
HISTORY, THE JUDGES HAVE BACKBONE AND INDEPENDENCE. YOU
THINK ABOUT YOUNGSTOWN STEEL, YOU THINK ABOUT BROWN VERSUS
BOARD OF EDUCATION WHERE THE COURT CAME TOGETHER AND KNEW
THEY WERE GOING TO FACE POLITICAL PRESSURE . AND STILL ENFORCED THE PROMISE
OF THE CONSTITUTION. YOU THINK ABOUT UNITED STATES VERSUS NIXON
, WHICH I HAVE IDENTIFIED AS ONE OF THE GREATEST MOMENTS IN
AMERICAN JUDICIAL HISTORY. CHIEF JUSTICE BURGER WHO HAD BEEN
APPOINTED BY PRESIDENT NIXON BROUGHT THE COURT TOGETHER IN A
UNANIMOUS DECISION TO ORDER PRESIDENT NIXON IN RESPONSE TO A
CRIMINAL TRIAL, SUBPOENAED DISCLOSED INFORMATION. THERE ARE
GREAT MOMENTS OF INDEPENDENCE AND UNANIMITY.
>>INDEPENDENCE IS IMPORTANT. BUT DID WE GET CLOSER TO
UNDERSTANDING HIS POSITION AND HOW HE MIGHT RULE IF THE
QUESTION OF SUBPOENAING THE PRESIDENT MIGHT OCCUR.
>>I THINK HE SAID NO ONE IS ABOVE THE LAW. THAT ANSWER THE
QUESTION WHERE HE MIGHT HAVE THOUGHT THAT PRESIDENT TRUMP OR ANY PRESIDENT
COULD BE ABOVE THE LAW. HE DIDN’T HAVE MUCH TIME TO FLESH
OUT HIS IDEAS. AS SOME PEOPLE ON THE LEFT WOULD HAVE LIKED, THERE
WERE A LOT OF INTERRUPTIONS, BUT ALSO HE HARPED ON THE
INDEPENDENCE THING AND KEPT COMING BACK TO IT AND REPEATING
THAT WORD. HE WASN’T REALLY CLEAR IN TERMS OF HOW HE WOULD
ALLOW POLITICS TO SHAPE THINGS IN TERMS OF PARTIES IN CONTROL,
INDICTMENTS COMING FORWARD. I THINK THE CONVERSATIONS ABOUT
EXECUTIVE POWER AND PRIVILEGE WILL CONTINUE. I THINK WHEN WE
SEE SOME OF THE MORE PROGRESSIVE DEMOCRATIC LAWMAKERS TO GET A CHANCE TO ASK
QUESTIONS, SOME OF THE QUESTIONS WILL BE MORE POINTED.
>>WE DID HEAR AN EXCHANGE WITH DIANNE FEINSTEIN WHERE SHE SAID
CAN A SITTING PRESIDENT BE REQUIRED TO SUPPORT — RESPOND TO A SUBPOENA?
>>HE USED A LOT OF WORDS TO SAY IT IS A HYPOTHETICAL QUESTION,
AND I’M NOT GOING TO ASK A HYPOTHETICAL QUESTION.
>>THEN SHE CAME BACK TO HIM AND SAID YOU CAN GIVE ME A QUESTION?
HE SAID YOU ARE ASKING ME TO GIVE MY VIEW AS A HYPOTHETICAL.
>>THAT IS CONCERNING BECAUSE AS HE DISCUSSED THE ISSUE AND THE
MINNESOTA LAW PIECE , HE SEEMED TO BE A LITTLE BIT
MORE CLEAR AND DIDN’T RESPOND TO IT AS IF IT WERE HYPOTHETICAL.
>>I KNOW THIS ISN’T THE ONLY THING HAPPENING IN CAPITOL HILL
TODAY. SOME OTHER NEW STORIES INCLUDE ANOTHER HEARING GOING ON
BEFORE THE SENATE INTELLIGENCE COMMITTEE LED BY RICHARD BURR OF
NORTH CAROLINA. THIS IS A BIG DEAL. IT IS SHERYL SANDBERG A
FACEBOOK, JACK DORSEY OF TWITTER GOING BEFORE THE LAWMAKERS.
GOOGLE WAS INVITED AND EXPECTED TO ATTEND, AND DID NOT SEND
SOMEONE. THAT IN ITSELF HAS ITS OWN OPTICS BECAUSE THEY WILL NOT
BE PRESENT AT THIS HEARING. I WANT TO PLAY A SOUNDBITE FOR ALL
OF YOU BEFORE WE HEAD BACK TO THIS PARTICULAR HEARING TO GET A
SENSE OF WHAT IS GOING ON ACROSS CAPITOL HILL. LISTEN TO THIS.
>>WHAT ABOUT WHEN WE ARE DEALING WITH REAL PEOPLE,
AUTHENTIC USERS, INTENTIONALLY SPREADING FALSE INFORMATION?
OBVIOUSLY, THERE ARE FREE-SPEECH
IMPLICATIONS THERE. FOR EXAMPLE, WHAT IF A U.S. CITIZEN SAYS THAT
VICTIMS OF THE MASS SHOOTINGS WERE ACTUALLY ACTORS, FOR
EXAMPLE. WITH THAT VIOLATE YOUR STANDARDS AND IF THE ANSWER IS
NO, HOW SHOULD WE, AND BY ME I MEAN GOVERNMENT AND INDUSTRY
DEAL WITH THOSE VERY REAL CHALLENGES?
>>LET ME START BY SAYING I FIND CLAIMS LIKE THAT PERSONALLY
UNBELIEVABLY UPSETTING. IF YOU HAVE BEEN A VICTIM OR A PARENT
OF A VICTIM, THEY DESERVE OUR FULL SUPPORT. FINDING THE LINE
BETWEEN WHAT IS HATE SPEECH AND WHAT IS MISINFORMATION IS VERY
DIFFICULT. ESPECIALLY, IF YOU ARE DEDICATED TO EXPRESSING FREE
EXPRESSION. SOMETIMES FREE EXPRESSION IS EXPRESSING THINGS
USED — YOU STRONGLY DISAGREE WITH. IN THE CASE OF
MISINFORMATION, WE REFER IT TO THIRD-PARTY FACT CHECKERS. WE
DON’T THINK WE SHOULD BE THE ARBITER OF WHAT IS TRUE AND
FALSE. WE THINK THAT IS IMPORTANT. THIRD-PARTY FACT
CHECKERS MARKET IS FALSE. IF IT IS MARKED AS FALSE WE
DRAMATICALLY DECREASE THE DISTRIBUTION ON OUR SITE. WE
WARN YOU IF YOU ARE ABOUT TO SHARE IT, WE WARN YOU IF YOU
HAVE SHARED IT, AND WE SHOW RELATED ARTICLES NEXT TO THAT SO
PEOPLE CAN SEE ALTERNATIVE FAX. THE FUNDAMENTAL VIEW IS THAT
SPEECH CAN OFTEN BE COUNTERED BY GOOD SPEECH. IF
SOMEONE SAYS SOMETHING THAT IS NOT TRUE AND THEY SAY IT
INCORRECTLY, SOMEBODY HAS THE OPPORTUNITY TO SAY YOU ARE
WRONG, THIS IS TRUE. THAT IS WHAT WE ARE WORKING ON.
>>SHERYL SANDBERG IS AT THE HEARING BEFORE THE INTELLIGENCE
COMMITTEE TESTIFYING WITH JACK DORSEY OF TWITTER. WE ARE
BROADCASTING THAT HEARING LIVE AS WELL ON OUR MAIN WEBSITE,
WASHINGTON POST.COM. IT IS ALSO ON YOUTUBE. FOR VIEWERS, WE WILL BROADCAST
THAT LATER TONIGHT AFTER ABOUT 7:00 P.M., DEPENDING ON HOW LONG
THIS HEARING GOES. THIS ONE TO GO FOR A WHILE. WHEN THIS ONE
WRAPS UP, YOU WILL GET AN OPPORTUNITY TO WATCH THE TECH
HEARING AS WELL. I WANT TO POINT OUT THERE IS A SECOND
CONGRESSIONAL HEARING THIS AFTERNOON WITH JUST JACK DORSEY
GOING BEFORE THE HOUSE COMMITTEE. REPUBLICANS ARE
ASKING QUESTION’S ABOUT BIAS AGAINST CONSERVATIVES. THAT WILL
NOT GET AS MUCH ATTENTION AS THE SANDBERG-DORSEY HEARING, BECAUSE
THAT IS THE FIRST TIME TO HEAR HIM ON CAPITOL HILL. IN THE PAST THESE TECH COMPANIES
HAVE SENT THEIR LAWYERS. LAWMAKERS HAVE REALLY WANTED TO
HEAR FROM THEM PERSONALLY. >>ABSOLUTELY. JACK HAS BEEN
RESPONSIVE ON TWITTER HIMSELF, WHEN SOME HIGH PROFILE PEOPLE CALL HIM OUT OR ASKING
QUESTIONS IN TERMS OF BIAS AND THE FEED AND WHAT PEOPLE ARE
GETTING ON THEIR COMPUTERS. I THINK HE HAS A LOT HE WANTS TO
CLARIFY. THE INTEGRITY OF THE ORGANIZATION IS BEING CALLED
INTO QUESTION BY SOME FOLKS. THAT COULD HAVE LONG-TERM
IMPLICATIONS IF IT IS VIEWED AS ACTUALLY BEING A BIAS AS SOME
CRITICS PERCEIVED. >>THAT IS HAPPENING TODAY ON
CAPITOL HILL AS WELL. SENATORS ARE NOW RETURNING. SENATOR
GRASSLEY IS ALREADY IN PLACE. WHEN BOB BARNES WAS HERE
EARLIER, HE SAID HE FEELS , AND HE IS WISE ABOUT THE
STUFF, HE FEELS LIKE WE ARE GETTING A LITTLE MORE
INFORMATION FROM THE NOMINEE THAN WE DID IN THE LAST
CONFIRMATION PROCESS. I WOULD LOVE TO HEAR WHAT YOU THINK
ABOUT THAT. DO YOU HAVE A SENSE THAT WE ARE GETTING MORE
INFORMATION OR HEARING MORE FROM HIM?
>>I THINK KAVANAGH HAS A LEVEL OF CONFIDENCE AND CERTAINTY
ABOUT HOW THIS WILL MOVE FORWARD. MAYBE IN A WAY THAT
NEIL GORSUCH DID NOT PORTRAY OR HAVE. I DON’T THINK KAVANAGH
COMES OFF AS COCKY BY ANY MEANS, BUT I THINK HIS ANXIETIES ABOUT
HOW THIS COULD END PERHAPS MAY NOT BE AS SIGNIFICANT AS
PREVIOUS PICKS. GORSUCH WAS TRUMP’S FIRST, PERHAPS THAT IS
WHY WE SEE HIM BEING MORE WILLING TO BE FORTHCOMING AND
OPEN AND SHARING MORE OF WHAT HE BELIEVES AND HAS DONE. HE KNOWS AT THE END OF THE DAY,
WHERE HE IS AIMING TO GO, HE WILL LIKELY END UP.
>>HE NOT ONLY HAS BEEN PRACTICING FOR THIS, AS ALL
NOMINEES DO, BUT WE HEARD EARLIER THAT HE HAS PREPPED
OTHER PEOPLE FOR THEIR TIME BEFORE CONGRESSIONAL PANELS. HE IS VERY FAMILIAR WITH THE
PROCESS. >>VERY MUCH SO. HE IS NOT NEW
TO THIS AT ALL. HE DEFINITELY TRY TO COMMUNICATE THAT HE HAS
PREPPED PEOPLE ACROSS THE IDENTITY SPECTRUM, HE HAS SPOKEN
OFTEN ABOUT MENTORING WOMEN AND PEOPLE OF COLOR. HE IS GETTING
INFORMATION FROM THE DIFFERENT ASPECTS OF THE POPULATION BEFORE
JUDICIAL — >>THE NEXT PERSON TO ASK
QUESTIONS IS SENATOR DURBIN. >>THANK YOU MR. CHAIRMAN. JUDGE
KAVANAGH, MRS. KAVANAGH THANK YOU FOR BEING BACK TODAY TO FACE
THIS NEXT ROUND. IF I HAD TO PICK AN AREA OF CLEAR EXPERTISE
TO WHEN IT COMES TO BRETT KAVANAGH, IT WOULD BE THE AREA
OF JUDICIAL NOMINATIONS. YOU HAVE BEEN ENGAGED IN THAT AT
SEVERAL DIFFERENT LEVELS INCLUDING YOUR OWN PERSONAL
EXPERIENCE. I WOULD LIKE TO ASK YOU IF YOU WOULD COMMENT ON THE
STRATEGY OF YOUR OWN NOMINATION. SPECIFICALLY, I WOULD LIKE TO
ASK YOU WHETHER THOSE THAT WERE PLANNING THAT STRATEGY
SAT DOWN AND CLEARED WITH YOU THEIR DECISION ON THE RELEASE OF
DOCUMENTS. >>NO. I WAS NOT INVOLVED IN THE
DOCUMENTS PROCESS OR SUBSTANCE. >>NO ONE TOLD YOU THAT YOU WERE
THE FIRST SUPREME COURT NOMINEE TO EXERT EXECUTIVE PRIVILEGE TO
LIMIT THE ACCESS TO 100,000 DOCUMENTS RELATING TO YOUR
SERVICE IN THE WHITE HOUSE? >>THERE ARE A COUPLE OF THINGS
PACKED INTO YOUR QUESTION. I DID STUDY THE NOMINEE PRESIDENT FOR
ALL THE HEARINGS — PRECEDENT. THIS CAME UP IN
JUSTICE SCALIA’S HEARING, SO I READ ALL OF THOSE. I KNOW WHAT
CHIEF JUSTICE ROBERTS HAD FOUR YEARS OF INFORMATION WHEN HE WAS
PRINCIPAL DEPUTY, SOLICITOR GENERAL THAT WERE NOT DISCLOSED
EITHER. >>AS FOR WHITE HOUSE DOCUMENTS,
YOU ARE BREAKING NEW GROUND HERE , OR SHALL I SAY COVERING A
PROGRAM. >>AGAIN, I WAS NOT INVOLVED IN
THE DOCUMENTS DISCUSSION OR PROCESS OR SUBSTANCE IN TERMS OF
THE DECISIONS THAT WERE MADE. IN TERMS OF THINKING ABOUT THE
ISSUE AND QUESTIONS THAT COULD COME TO ME LIKE JUSTICE SCALIA
AND CHIEF JUSTICE ROBERT RECEIVED, I GUESS I DON’T
DISTINGUISH, IT IS ALL EXECUTIVE BRANCH DOCUMENTS.
>>WHEN YOU REALIZE WHEN IT COMES TO THE ROLE OF THE
NATIONAL ARCHIVES, WE ARE ASKED TO GIVE YOU SPECIAL TREATMENT.
>>I CAN’T COMMENT BECAUSE I DON’T KNOW.
>>JUDGE KAVANAGH THIS IS YOUR FIELD. JUDICIAL NOMINATIONS.
YOUR NOMINATION. YOU ARE NOW EMBARKING ON THIS JOURNEY IN
THIS COMMITTEE DENYING US ACCESS TO DOCUMENTS WHICH WERE
ROUTINELY PROVIDED TO OTHER JUDICIAL NOMINEES. YOU HAD TO OF
KNOWN THAT WAS TAKING PLACE. >>SENATOR, I THINK WHAT JUSTICE
SCALIA SAID IN HIS HEARING WHEN HE WAS ASKED ABOUT HIS OFFICE OF
LEGAL COUNSEL MEMOS IS THE RIGHT THING. THAT IS A DECISION FOR
THE SENATE IN THE EXECUTIVE BRANCH TO WORK OUT. AS A NOMINEE THERE ARE LONG-TERM PRIVILEGES
AND PROTECTIONS THAT AS HE MENTIONED WERE IN EFFECT FOR
THAT DISCUSSION IT IS NOT FOR THE NOMINEE TO MAKE THAT
DECISION. >>THAT IS AN INTERESTING
COMMENT, BECAUSE THE WAY YOU ARE BEING PRESENTED WITH ONLY 10% OF
THE PUBLIC DOCUMENTATION THAT COULD BE PROVIDED TO THIS
COMMITTEE IS GOING TO REFLECT ON YOU AND YOUR NOMINATION. OF
COURSE YOU KNOW THAT. >>AGAIN, LOOKING AT THE NOMINEE
PRESIDENT’S — PRECEDENT, THAT WAS TRUE IN
JUSTICE SCALIA’S NOMINATION DURING CONSEQUENTIAL TIME. THOSE MIGHT NOT HAVE BEEN
DISCLOSED. HE HAS BEEN ASKED THAT HIS HEARING. CHIEF JUSTICE
ROBERTS, FOUR YEARS OF DEPUTY SOLICITOR GENERAL MEMOS WHICH
WOULD HAVE BEEN — >>SO YOU ARE PERFECTLY FINE
WITH THIS? >>NO, IT IS UP TO THE CHAIRMAN
AND YOU AND THE COMMITTEE , THE SENATE AND EXECUTIVE
BRANCH. >>IN FAIRNESS, JUST KAVANAGH I
THINK IT IS UP TO YOU. I THINK IT IS UP TO YOU. IF YOU SAID AT
THIS MOMENT TO THIS CHAIRMAN AND TO THIS COMMITTEE, STOP, HIT THE
PAUSE BUTTON. I DON’T WANT ANY CLOUD OR SHADOW OVER THIS
NOMINATION. I TRUST THE AMERICAN PEOPLE, I WANT THEM TO TRUST ME.
I AM PREPARED TO DISCLOSE THOSE PUBLIC DOCUMENTS. TAKE SENATOR
LEAHY’S LINE OF QUESTIONING. HE WAS NOT THE ONLY VICTIM OF MANNY
MIRANDA. I WAS AS WELL. I DIDN’T REALIZE THIS REPUBLICAN STAFFER
HAD HACKED INTO MY COMPUTER, STOLEN MY STAFF MEMOS AND
RELEASE THEM TO THE WALL STREET JOURNAL UNTIL THEY SHOWED UP IN
AN EDITORIAL. NOW, YOUR KNOWLEDGE OF THIS, YOUR ROLE IN
THIS, WE ARE LIMITED TO EVEN DISCUSS BECAUSE OF THE FACT WE
ARE CLASSIFYING AND WITHHOLDING INFORMATION ABOUT YOUR
NOMINATION. FIRST IS MR. BILL BURKE WHO HAS SOME MAGIC POWER
TO DECIDE WHAT THE AMERICAN PEOPLE WERE SEE ABOUT YOUR ROLE
IN THE WHITE HOUSE. THEN THE DECISION BY THOSE THAT PUT YOUR
NOMINATION BEFORE US TO TAKE 35 MONTHS OF YOUR SERVICE AS STAFF
SECRETARY TO THE PRESIDENT OF UNITED STATES AND TO EXCLUDE THE
DOCUMENTS, THEN THE UNILATERAL CLASSIFICATION OF DOCUMENTS
COMING TO THIS COMMITTEE AS COMMITTEE CLASSIFIED IN A MANNER
NO ONE HAS EVER SEEN IN THE HISTORY OF THIS COMMITTEE. JUDGE KAVANAGH, THAT REFLECTS ON
YOUR REPUTATION AND YOUR CREDIBILITY. IF YOU SAID AT THIS
MOMENT, I DON’T WANT A CLOUD OVER THIS NOMINATION, I AM
PREPARED TO SUGGEST TO THE COMMITTEE AND ASK THEM HUMBLY,
WITHHOLD FURTHER HEARINGS UNTIL YOU DISCLOSE EVERYTHING. WHY
WANT TO DO THAT? >>SENATOR, I DO NOT BELIEVE
THAT IS CONSISTENT WITH WHAT PRIOR NOMINEES HAVE DONE AND
BEEN IN THIS CIRCUMSTANCE. IT IS A DECISION FOR THE SENATE AND
EXECUTIVE BRANCH . JUSTICE SCALIA EXPLAINED THAT
VERY CLEARLY IN HIS HEARING. >>ARE YOU HAPPY WITH THAT
DECISION? >>IT IS NOT FOR ME TO SAY,
SENATOR. THE LONG-TERM INTERESTS OF THE SENATE AND EXECUTIVE
BRANCH, PARTICULARLY THE EXECUTIVE BRANCH ARE AT PLAY.
JUSTICE SCALIA EXPLAINED THAT WELL I THOUGHT.
>>I WASN’T HERE FOR JUSTICE SCALIA. —
>>LET ME INTERRUPT YOU WITHOUT TAKING TIME AWAY FROM YOU. HERE
IS SOMETHING, THE NOMINEE DOESN’T NEED ANY HELP FOR ME TO
ANSWER THIS, BUT WE DON’T CARE WHAT THE NOMINEE THINKS. WE HAVE
TO FOLLOW THE PRESIDENTIAL RECORDS ACT. THAT IS WHAT WE ARE
FOLLOWING, IS THE LAW. >>MR. CHAIRMAN WITH ALL DUE
RESPECT, FOLLOWING THE PRESIDENTIAL RECORDS ACT
INVOLVES THE NATIONAL ARCHIVES, THE NATIONAL ARCHIVES IS NOT
INVOLVED IN THIS PROCESS. IT IS A MR. BILL BURKE WHO WAS A
FORMER ASSISTANT TO THE NOMINEE WHO HAS DECIDED WHAT WILL BE
WITHHELD AND WHAT WILL BE COMMITTEE CONFIDENTIAL. IT ISN’T
THE PRESIDENTIAL RECORDS ACT. PLEASE.
>>LET ME MAKE CLEAR HERE. WE
ANTICIPATE SOME OF THIS, SO LET ME READ. CRITICIZE THE COMMITTEE
PROCESS FOR OBTAINING JUDGE KAVANAGH’S RECORDS. THEY HAVE
ACCUSED OF — US OF CUTTING THE NATIONAL ARCHIVES OUT OF THE
PROCESS. THIS IS WHERE I WANT TO SET THE RECORD STRAIGHT.
PRESIDENT BUSH ACTED CONSISTENTLY WITH FEDERAL LAW
WHEN HE EXPEDITED THE LAW AND GAVE US UNPRECEDENTED ACCESS TO
JUDGE KAVANAGH’S RECORDS. WE HAVE WORKED HAND IN GLOVE WITH
THE ARCHIVES THROUGHOUT THIS PROCESS AND THE DOCUMENTS THIS
COMMITTEE RECEIVED ARE THE SAME AS IF THE ARCHIVES HAD DONE THE
INITIAL REVIEW. IN FACT, THE ARCHIVES IS NOT PERMITTED BY LAW
TO PRODUCE RECORDS TO THE COMMITTEE WITHOUT GIVING BOTH
PRESIDENT BUSH AND THE CURRENT PRESIDENT AN OPPORTUNITY TO
REVIEW. THE NATIONAL ARCHIVES WAS NOT CUT OUT OF THE PROCESS.
AS PRESIDENT BUSH — IS PRESENT WISHES ARE PRESENTED AND
INFORMED THE COMMITTEE FROM HIS LETTERS. BECAUSE WE HAVE SOUGHT,
RECEIVED AND USED ARCHIVISTS VIEWS ON ANY DOCUMENTS HELD AS
PERSONAL DOCUMENTS, THE RESULTING PRODUCTION OF
DOCUMENTS TO THE COMMITTEE IS ESSENTIALLY THE SAME AS IF HE
HAD CONDUCTED THE REVIEW FIRST AND THEN SOUGHT OUR VIEWS AND
THE CURRENT ADMINISTRATION VIEWS AS REQUIRED BY LAW. IN OTHER
WORDS, THE DOCUMENTS THIS COMMITTEE RECEIVED ARE THE SAME
AS IF THE ARCHIVES HAD DONE THE INITIAL REVIEW. WE ARE JUST ABLE
TO GET THE DOCUMENTS FASTER BY DOING IT THIS WAY. THAT GAVE THE
SENATE AND THE AMERICAN PEOPLE UNPRECEDENTED ACCESS IN RECORD
TIME TO A SUPREME COURT NOMINEE RECORD.
>>MR. CHAIRMAN, THE NATIONAL ARCHIVES HAS STATED PUBLICLY
THAT THE WAY WE ARE HANDLING THE RECORDS FOR THIS NOMINATION ARE
UNPRECEDENTED AND THEY HAVE HAD NOTHING TO DO WITH IT. THEY HAVE
ASKED UNTIL THE END OF OCTOBER TO PRODUCE RECORDS. THEY HAVE
BEEN TOLD WE DON’T NEED YOU . WE ARE GOING TO FINISH THIS
HEARING LONG BEFORE THEN. I WOULD LIKE TO ASK THAT IT BE
PLACED IN THE RECORD THIS STATEMENT FROM THE NATIONAL
ARCHIVES RELATED TO THE RECORDS RELATED TO JUDGE KAVANAGH.>>YES, WITHOUT OBJECTION. NOW I
AM GOING TO THROW YOU A PITCH WHICH YOU HAVE SEEN COMING FOR
12 YEARS. I WANT TO TALK YOU ABOUT THE 2006 TESTIMONY YOU
GAVE BEFORE THIS COMMITTEE. IT WAS AT A DIFFERENT TIME. WE WERE
VERY CONCERNED ABOUT THE ISSUE OF TORTURE. YESTERDAY I ASKED HER TO SHOW
THE AMERICAN PEOPLE THAT YOU HAVE NOTHING TO HIDE BY COMING CLEAN WITH US ON THIS
ISSUE. I WOULD LIKE TO REFER SPECIFICALLY TO SOME OF THE
QUESTIONS THAT WERE RAISED BECAUSE OF THAT 2006 TESTIMONY. I AM SURE YOU HAVE SEEN THIS
BECAUSE IT HAS BEEN REPORTED IN THE PAPER THAT YOU HAVE BEEN
WAITING FOR THIS QUESTION FOR A LONG TIME. WHEN I WAS A TRIAL
ATTORNEY PREPARING A WITNESS FOR INTERROGATION, TESTIMONY AND
DEPOSITION I SAID TWO THINGS, TELL THE TRUTH AND DON’T ANSWER
MORE THAN YOU ASKED. DON’T VOLUNTEER INFORMATION. JUDGE
KAVANAGH, YOU FAILED ON THE SECOND COUNT. THE QUESTION I ASK
YOU, WHAT WAS YOUR ROLE IN THE ORIGINAL HAZE NOMINATION AND
DECISION TO RENOMINATE . AT THE TIME OF THE NOMINATION
WHAT DID YOU KNOW ABOUT MR. HAYNES ROLE IN CRAFTING THE
MILITARY’S DETENTION AND INTERROGATION POLICIES. YOUR RESPONSE,
SENATOR, I DID NOT. I WAS NOT INVOLVED AND AM NOT INVOLVED IN
THE QUESTIONS ABOUT THE RULES GOVERNING DETENTION OF DETAINEES
OR, AND I DO NOT HAVE INVOLVEMENT WITH THAT. IN
RESPECT TO MR. HAYNES NOMINATION, I HAVE KNOWN JIM
HAYNES BUT HE WAS NOT ONE OF THE NOMINATIONS I HANDLED. I ASKED ABOUT THIS AND WE HAD A
MEETING IN MY OFFICE. I STILL DON’T UNDERSTAND YOUR ANSWER IN
TERMS OF HOW YOU COULD STATE AS CLEARLY AND UNEQUIVOCABLY, I WAS
NOT AND AM NOT INVOLVED WITH THE QUESTIONS WITH THE RULES
GOVERNING COMBATANTS. YOU WERE INVOLVED — YOU CONFIRMED THIS DURING THE
MEETING WE HAD IN MY OFFICE. THERE WERE MULTIPLE MEDIA
REPORTS AS WELL. YOU WERE INVOLVED AND THIS IS ONE I WANT
TO BE SPECIFIC ABOUT, YOU WERE INVOLVED WITH PRESIDENT BUSH’S
2005 SIGNING STATEMENT ON SENATOR JOHN McCAIN’S AMENDMENT
BANNING CRUEL AND INHUMAN TREATMENT OF DETAINEES. CAN YOU
CONFIRM THAT? — YOU DID CONFIRM THAT IN THE
MEETING. THERE WERE NO EXCEPTIONS IN YOUR ANSWER GIVEN
TO ME IN 2006. NOT FOR LITIGATION OR DETAINEE COUNSEL. BASED ON THE LIMITED DOCUMENTS
WE WERE GIVEN, WHAT WERE YOU TRYING TO TELL ME HERE? DID YOU
REALLY ACCURATELY A ROLE?>>I UNDERSTOOD THE QUESTION.
AND I UNDERSTAND THE QUESTION NOW. YOU ARE CONCERNED ABOUT WHETHER
I WAS INVOLVED IN THE PROGRAM THAT TWO OTHER NOMINEES HAVE
BEEN INVOLVED IN. AND THE REPORT THAT SENATOR FEINSTEIN PRODUCED,
THE JUSTICE DEPARTMENT REPORT, THEY SHOW THAT I WAS NOT. IN
OTHER WORDS, THE PROGRAM, CRAFTING THE PROGRAM FOR THE
ENHANCED INTERROGATION TECHNIQUES FOR THE DETAINEES.
>>JUDGE KAVANAUGH, THAT IS NOT THE QUESTION. YOU SEE ME ASKING
YOU WHETHER YOU CRAFTED THE PROGRAM? I DID NOT. I ASKED YOU
ABOUT YOUR INVOLVEMENT IN THE HAYNES . HE VIOLATED EVERY THING THAT I
ASKED. YOU VOLUNTEERED MORE INFORMATION THAT I ASKED AND HE
WENT FURTHER THAN YOU SHOULD HAVE. IN THE THREE SPECIFIC
INSTANCES THAT I’VE GIVEN YOU, YOU CLEARLY WERE INVOLVED IN
QUESTIONS ABOUT RULES GOVERNING DETENTION COMBATANTS.
>>UNDERSTOOD THE QUESTION THEN, AND I UNDERSTAND IT NOW ON MY
ANSWER, ABOUT THAT PROGRAM. I TOLD THE TRUTH ABOUT THAT. THE
REPORTS HAVE, OUT SUBSEQUENTLY SHOW THAT I’VE SHOWN THE TRUTH
ABOUT THAT. MY NAME IS NOT IN THOSE REPORTS. FOR THE 2005
SIGNING STATEMENT, AND EVERYTHING THAT WENT TO THE
PRESIDENT’S DESK, EVERYTHING THAT WENT TO THE PRESIDENT’S
DESK WITH A FEW COVERT EXEMPTIONS. YOU ASKED AND I SAID
IN THE SIGNING STATEMENT, THEY CAME ACROSS MY DESK IN THE WAY.
SO THOSE THINGS WOULD HAVE CROSSED MY DESK, REPAIRED BY OTHERS, NOT PREPARED
BY ME. THE CROSS MY DESK ON THE WAY TO THE PRESIDENT.
>>IN THE 2006 HEARING, YOU TOLD ARLEN SPECTER THAT YOU GAVE
ADVICE ON SIGNING STATEMENTS IDENTIFYING POTENTIAL
IDENTIFYING ISSUES AND CONSTITUTION. DID YOU MAKE ANY
ARGUMENTS REGARDING THE SIGNING STATEMENT ON THE McCAIN TORTURE
MEMO, INCLUDING POTENTIAL CONSTITUTIONAL ISSUES?
>>I CAN’T RECALL WHAT I SAID. I DO RECALL THAT THERE WAS A GOOD
DEAL OF INTERNAL DEBATE ABOUT THAT SIGNING STATEMENT, AS YOU
CAN IMAGINE. I REMEMBER THAT IT WAS CONTROVERSIAL INTERNALLY. I
REMEMBER THAT I THOUGHT , AND I CANNOT REMEMBER ALL OF
THE INS AND OUTS OF WHAT THE THOUGHTS WERE, BUT I REMEMBER
THE COUNCIL OF THE PRESIDENT WAS IN CHARGE OF SIGNING
STATEMENTS IN TERMS OF THE FINAL RECOMMENDATION TO THE PRESIDENT.
>>JUST A FEW MONTHS LATER, YOU, UNDER OATH, TOLD US THAT YOU ARE
NOT INVOLVED IN ANY OF THE QUESTIONS ABOUT THE RULES
GOVERNING THE DETENTION OF COMBATANTS.
>>I UNDERSTOOD IT THEN. AND I UNDERSTAND IT NOW. YOU ARE
REFERRING TO THE PROGRAM THAT WE’RE TALKING ABOUT THAT IS VERY
CONTROVERSIAL. SENATOR FEINSTEIN SPENT YEARS DIGGING INTO. I TOLD
THE TRUTH ABOUT THAT. .
>>LET’S GO TO ANOTHER AREA OF QUESTIONING. THANK YOU VERY
MUCH. IN YOUR DISSENT IN THAT THE DETENTION TO OBTAIN
IMMEDIATE ABORTION ON DEMAND. THEREBY BARRING TRANSFER OF THE
MINERS TO MAKING THE DECISION. YOU SAID THAT IT DID
NOT IMPOSE AN UNDUE BURDEN TO FIND ADDITIONAL TIME TO FIND
THEM. EVEN THOUGH THE GOVERNMENT FORCE THEM TO DELAY HER DECISION
ON ABORTION BY SEVERAL WEEKS. WE’RE TALKING ABOUT A YOUNG
WOMAN, CHARACTERIZED AS JANE DOE, WHO DISCOVERED THAT SHE WAS
PREGNANT AFTER CROSSING THE BORDER INTO THE UNITED STATES. SHE MADE A PERSONAL DECISION
THAT SHE WAS NOT READY TO BE A PARENT AND DID NOT WANT TO
CONTINUE HER PREGNANCY. SHE WENT THROUGH EVERY STEP NECESSARY TO
COMPLY WITH TEXAS STATE LAW. AS WELL AS THE STEPS FORCED ON HER
BY THE FEDERAL GOVERNMENT. SHE VISITED A RELIGIOUS ANTIABORTION
CRISIS PREGNANCY CENTER. SHE UNDERWENT A ULTRASOUND FOR NO MEDICAL
PURPOSE. SHE WENT TO A JUDGE AND RECEIVED A JUDICIAL BYPASS. IN
OTHER WORDS, THIS YOUNG WOMAN COMPLIED WITH EVERY LEGAL
REQUIREMENT, INCLUDING TEXAS STATE GARMENTS PLACED IN FRONT
OF HER SO SHE CAN MOVE FORWARD WITH HER DECISION. A DECISION
AFFECTING HER BODY AND HER LIFE. DO BELIEVE THAT THIS WAS AN
ABORTION ON DEMAND? >>SENATOR, THE GARZA CASE INVOLVED A MINOR. SHE WAS AN IMMIGRATION
FACILITY IN THE UNITED STATES. SHE IS FROM ANOTHER COUNTRY AND
DOES NOT SPEAK ENGLISH. SHE IS BY HERSELF. HAD SHE BEEN AN
ADULT, SHE WOULD HAVE A RIGHT TO OBTAIN THE ABORTION IMMEDIATELY.
AS A MINOR, THE GOVERNMENT ARGUED THAT IT WAS PROPER OR
APPROPRIATE TO TRANSFER HER QUICKLY FIRST TO AN IMMIGRATION
SPONSOR. WHO IS AN IMMIGRATION SPONSOR? IT IS A FAMILY MEMBER
OR FRIEND. WHO SHE WOULD NOT BE FORCED TO TALK TO, BUT SHE COULD
CONSULT WITH IF SHE WANTED ABOUT THE DECISION FACING HER. WE HAD
TO ANALYZE THIS FIRST AS A MINOR, AND THEN FOR
ME, THE FIRST QUESTION WAS, WHAT IS THE PRESIDENT? THE PRESIDENT
ON POINT FROM THE SUPREME COURT WAS THAT THERE WAS NO CASE ON
EXACT POINT. YOU DO WHAT YOU DO ON ALL CASES. REASON BY ANALOGY
BY THE CLOSEST THING ON POINT. THE PARENTAL CONSENT DECISIONS
OF THE SUPREME COURT WITH THEY HAVE UPHELD THEM OVER TO CENTERS
WHICH WOULD DELAY THE PROCEDURE TOO LONG, UP TO SEVERAL POINT .
>>BEFORE HE GETS THE POINT, IT IS BYPASSED SOMETHING. YOU JUST
BYPASSED THE JUDICIAL BYPASS, WHICH SHE RECEIVED FROM THE
STATE OF TEXAS WHEN IT CAME TO PARENTAL CONSENT. THAT IS
ALREADY HAPPENED. THAT IS STILL STOPPING HER.
>>I AM NOT. THE GOVERNMENT IS ARGUING THAT PLACING HER WITH AN
IMMIGRATION SPONSOR WOULD ALLOW HER, IF SHE WISHED, TO CONSULT
WITH SOMEONE ABOUT THE DECISION. THAT IS NOT THE
PURPOSE OF THE STATE BYPASS PROCEDURE. I WANT TO BE VERY
CLEAR ABOUT THAT. >>BUT, JUDGE, THE CLOCK IS
TICKING. >>IT IS.
>>THE 20 WEEK CLOCK IS TICKING. SHE MADE THE DECISION EARLY IN
THE PREGNANCY, AND ALL THAT I HAVE DESCRIBED YOU IN THE
JUDICIAL DECISIONS, THE CLOCK IS TICKING. YOU ARE SUGGESTING THAT
SHE SHOULD HAVE WAITED TO HAVE A SPONSOR APPOINTED WHO SHE MAY OR
MAY NOT HAVE CONSULTED IN MAKING THIS DECISION.
>>I AM A JUDGE. I’M NOT MAKING THE POLICY DECISION. MY JOB IS
TO DECIDE WHETHER THE POLICY IS CONSISTENT WITH LAW. WHAT DO I
DO? I LOOK AT PRECEDENT. THE MOST ANALOGOUS PRESIDENT IS THE
RENTAL CONSENT PRESIDENT. MINORS BENEFIT FROM CONSULTATION ABOUT
ABORTION. THAT IS A QUOTE TALKING ABOUT CONSULTATION WITH
YOUR PARENT. >>YOU ARE ADDING A REQUIREMENT
HERE BE ON THE STATE OF TEXAS REQUIREMENTS THAT THERE BE SOME
SPONSOR CHOSEN WHO MAY OR MAY NOT BE CONSULTED FOR THIS
DECISION. THE CLOCK IS TICKING ON HER
PREGNANCY. >>A COUPLE OF THINGS THERE,
SENATOR. YOU SAID THAT YOU ARE ADDING. I AM NOT ADDING. I’M A JUDGE.
THE POLICY IS BEING MADE BY OTHERS. I AM DECIDING IF THE
POLICY IS CONSISTENT WITH SUPREME COURT PRECEDENT. IF —
IS THE GOVERNOR’S — GOVERNMENTS ROLE REASONABLE IN SOME WAY?
THEY SAY WE WANT THE MINOR TO HAVE THE OPPORTUNITY TO CONSULT
ABOUT THE ABORTION. THE SUPREME COURT RESIDENT SPECIFICALLY SAYS
, SPECIFICALLY SAYS, THAT THAT IS AN APPROPRIATE OBJECTIVE. THE
SECOND QUEST IS THE DELAY. YOUR POINT. AND THE PARENTAL CONSENT
CASES OF THE SUPREME COURT RECOGNIZE THAT THERE COULD BE
SOME DELAY BECAUSE OF THE PARENTAL CONSENT PROCEDURES AND
IN FACT, JUSTICES MARSHALL, BRADY, AND LACK DISSENTED BECAUSE HE THOUGHT THE
DELAY WAS TOO LONG. I MADE CLEAR THAT HAD TO HAPPEN VERY QUICKLY.
AND I LOOKED AT THE TIME OF THE PREGNANCY TO MAKE SURE THAT
THERE IS SAFETY. SPECIFICALLY TALKED ABOUT SAFETY. I SAID THAT
THE GOVERNMENT CANNOT USE HIS IS A RUSE TO SOMEHOW PREVENT THE
ABORTION. I SPENT A PARAGRAPH TALKING ABOUT HOW SHE WAS IN AN
UNDENIABLY DIFFICULT SITUATION, SO AS I WAS SAYING TO SENATOR
GRAHAM EARLIER, I TRIED TO RECOGNIZE THE REAL WORLD EFFECTS
ON HER. I SAID, CONSIDER THE
CIRCUMSTANCES. SHE IS A 17-YEAR-OLD BY HERSELF IN A
FOREIGN COUNTRY. IN A FACILITY WHERE SHE IS DETAINED AND SHE
HAS NO ONE TO TALK TO AND SHE IS PREGNANT. THAT IS A DIFFICULT
SITUATION. I SPECIFICALLY RECOGNIZED AND TRIED TO
UNDERSTAND THAT AND THEN, AS A JUDGE, NOT THE POLICYMAKER, I
TRIED TO UNDERSTAND WHETHER THE GOVERNMENT’S POLICY WAS
CONSISTENT WITH SUPREME COURT PRECEDENTS. I DO THE BEST I
COULD. AND I SAID IN THE POURED — RENTAL CONSENT PRESIDENT THAT
SOME PEOPLE DISAGREE WITH THOSE PRECEDENTS AND THINK THAT THOSE
KINDS OF STATUTES SHOULD NOT BE ALLOWED. BUT PRESIDENT IS NOT
LIKE A CAFETERIA. WHERE TAKE THIS IS NOT THAT. I HAD TO TAKE
IT IN COMPLETELY. >>IT IS AN IMPORTANT QUESTION.
AND I DID MY LEVEL BEST IN AN EMERGENCY POSTURE. I’D BASICALLY
TWO DAYS TO DO THIS CASE. >>IT WAS A DECISION THAT YOU
DISSENTED FROM, AM I CORRECT? >>I DID MY BEST TO FOLLOW
PRECEDENT. I ALWAYS TRIED TO BE AS CAREFUL AS I CAN AND
FOLLOWING THE PRECEDENT OF THE SUPREME COURT.
>>LET ME ASK YOU A PERSONAL QUESTION, WHAT IS THE DIRTIEST,
HARDEST JOB YOU’VE EVER HAD YOUR LIFE?
>>I WORKED CONSTRUCTION WHEN I WAS IN THE SUMMER AFTER I WAS 16
FOR A SUMMER. FROM 7 AM UNTIL 3:30 IN THE AFTERNOON. MY DAD
DROP ME OFF EVERY MORNING AT 7:00. AT 6:55 AM BECAUSE HE WANT
TO BE TO BE EARLY. THAT IS PROBABLY THE ONE. I SHOULD SAY,
SENATOR, ONE PERSON, I GUESS, I HELPED
WITH HIS LAWN SERVICE. IT A LOT OF NONSENSE I MADE SOME CASH
WHEN I WAS — I STARTED THAT MAY BE IN EIGHTH GRADE. MAYBE 7th GRADE. I CUT MY
PARENTS LAWN, BUT THEN I CUT A LOT OF LAWNS IN THE NEIGHBORHOOD
AND DISTRIBUTED FLYERS ALL OVER THE PLACE TO SAY THAT IF YOU
NEED YOUR LONG CUT, CALL ME. SALON CUTTING AND THEN THE
CONSTRUCTION JOB THAT ONE SUMMER.
>>MY DIRTIEST JOB I EVER HAD WAS FOR SUMMERS WORKING IN A
SLAUGHTERHOUSE. >>YES.
>>I ALWAYS WANTED TO GO BACK TO COLLEGE. I COULD NEVER WAIT TO
GET OUT OF THERE. WAS UNBEARABLE. IT WAS DIRTY. IT WAS
HOT. THE THINGS I DID WERE UNIMAGINABLE. I WOULD NOT EVEN
START TO REPEAT THEM. THEN CAME A CASE BEFORE YOU, CALLED AGORA
PROCESSOR COMPANY VERSUS NLRB. THE THIRD OF OUR EMPLOYEES
AT SLAUGHTERHOUSE IS A BEGINS. FROM IOWA TO ILLINOIS, DELAWARE,
YOU PICK IT. YOU FIND IMMIGRANTS DOING THESE DIRTY, STINKY, HOT
JOBS. MANY OF THEM ARE UNDOCUMENTED. THE WORK IS
LOW-PAID AND DANGEROUS. IMMIGRANTS ARE PRESSURED, NOT TO
REPORT INJURIES ON THE JOB. THE CASE WAS A NOTORIOUS MEATPACKING
COMPANY AND THEY WERE CONVICTED OF
COUNTS OF FRAUD AND MONEY LAUNDERING. HIS 27 YEAR SENTENCE
WAS RECENTLY COMMUTED BY PRESIDENT TRUMP. AGORA
PROCESSORS HOW TO THE HALF OF THE WORKERS WERE NOT AUTHORS. WORKERS
ALLEGEDLY COMPANY FOSTERED A HOSTILE WORKPLACE. ENVIRONMENT
THAT INCLUDED 12 HOUR SHIFTS WITHOUT OVERTIME PAY, EXPOSURE
TO DANGEROUS CHEMICALS, SEXUAL HARASSMENT AND CHILD LABOR. A
TRUCK DRIVER AT THE WAREHOUSE AND WE WERE TREATED LIKE
GARBAGE. IF WE SAID ANYTHING, WE GOT FIRED IMMEDIATELY. JUDGE KAVANAUGH, YOU’VE BENT
OVER BACKWARDS TO TAKE THE COMPANY’S SIDE AGAINST THE
WORKERS. IN A 2008 DC CIRCUIT CASE, AGRIPROCESSORS VERSUS JIM HAYNES, YOU SAID THEY SHOULD
BE PROHIBITED FROM UNIONIZING BECAUSE THEY DID NOT FIT YOUR
DEFINITION OF AN EMPLOYEE. TO REACH THIS CONCLUSION, YOU
IMPORTED A DEFINITION OF EMPLOYEE FROM A TOTALLY
DIFFERENT STATUTE. YOU IGNORED THE PLAIN LANGUAGE OF THE
CONTROLLING STATUTE, THE NATIONAL LABOR RELATIONS ACT,
WHICH HAS A BROAD DEFINITION OF EMPLOYEE, AS WELL AS BINDING
SUPREME COURT RESIDENT. THE MAJORITY IN THIS CASE, AND YOU
WERE A DISSENTER, THE MAJORITY IN THIS CASE NOTED THAT THEIR
OPINION STUCK TO THE TEXT OF THE NATIONAL LABOR RELATIONS ACT AND
TO THE 1986 IMMIGRATION REFORM AND CONTROL
ACT, WHICH DID NOT AMEND THE NATIONAL LABOR RELATIONS ACT.
THEY SAID THAT YOUR DISSENT, THESE OTHER JUDGES SAID ABOUT
YOUR DISSENT, WOULD “ABANDON THE TEXT OF THE STATUTE AND LEAD TO AN ABSURD
RESULT.” JUDGE KAVANAUGH, YOU CLAIM OVER AND OVER AGAIN TO BE
A TEXTUAL LIST. TO BE CAREFULLY WEIGHING EVERY WORD AND SATCHELS — SET YOU. WHAT YOU OUT OF THE
WAY TUTOR BY THE WORD EMPLOYEE IN A WAY THAT BENEFITED THIS
WEARABLE BUSINESS AND DISADVANTAGED THESE EXPLOITED
WORKERS? WHY DIDN’T YOU STICK TO THE BINDING SUPREME
COURT PRECEDENT? WE’LL BECAUSE THE SUPREME COURT PRECEDENT
COMPELLED ME TERESA RESULTS THAT I REACH. HERE’S WHY. THE
SPRINKLE HAD A CASE IN 1984 CALLED THE FISHER 10 DECISION LOOKED AT THE
IMMIGRATION LAWS AND WHAT THE SUPREME COURT DID IN SURE-TAN
HAVE THIS QUESTION AND AT THAT TIME, WHAT IS PERMISSIBLE TO CONSIDER
SOMEONE UNLAWFULLY IN THE COUNTRY UNDER THE NATIONAL LABOR
RELATIONS ACT. AND PART 2 B OF THE OPINION, THE COURT THEN GOES
ON TO SAY AND BECAUSE THE IMMIGRATION LAWS DO NOT PROHIBIT
EMPLOYMENT OF PEOPLE UNLAWFULLY IN THE COUNTRY. IT MAKES CLEAR
THAT THIS IS WHEN IT IS BEING CONSIDERED IN CONGRESS IN 84.
THE COURT MAKES CLEAR AS I READ PART 2 B, THAT IF THE
IMMIGRATION LAWS DID PROHIBIT EMPLOYMENT OF SOMEONE UNLAWFULLY
IN THE COUNTRY, THEN THAT WOULD ALSO MEAN THAT THEY CANNOT VOTE
IN THE UNION ELECTIONS. WHAT I WAS DOING THERE, SENATOR, DOES
ABOUT PRECEDENT. WHEN YOU LOOK AT THE DISSENTING
OPINION, I PARSE THIS VERY CAREFULLY. WENT DEEP INTO THIS
CASE. I WENT BACK AND PULLED FROM THE SURE-TAN CASE, I LOOK
FOR THE THURGOOD MARSHALL PAPERS TO READ ALL OF THE MEMOS
WENT BACK AND FORTH AMONG THE JUSTICES IN THE SURE-TAN CASE.
CITED THE ORAL ARGUMENT TO MAKE SURE THAT WHAT I WAS READING AND
THERE WAS ACTUALLY REFLECTED AND HAD BEEN GOING ON IN THE SUPREME
COURT. IT IS QUITE CLEAR FROM THE ORAL ARGUMENT THAT THEY WERE
AWARE THAT THE IMMIGRATION LAW WAS ABOUT TO BE CHANGED AND THEY
WERE AWARE OF THE INTERACTION BETWEEN THE LABOR LAW AND THE
IMMIGRATION LAW, SO I THINK I STAND BY WHAT I WROTE THEN. I
THINK I CORRECTLY ANALYZED HEART 2 B.
>>IN THE INTEREST OF TIME. >>IF THE SUPREME COURT’S SURE-TAN OPINION HAD ENDED AT 2
A. MY OPINION WOULD HAVE BEEN DIFFERENT.
>>YOU SAID EARLIER TODAY THE DON’T GET TO PICK AND CHOOSE
WHICH SUPREME COURT PRESIDENT YOU FOLLOW. THE MAJORITY WAS
FOLLOWING SUPREME COURT PRECEDENT. IN THE JOSE PADILLA CASE, A 7-2
DECISION, SAID THAT UNDOCUMENTED IMMIGRANTS ARE
EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT. IS IT
BECAUSE UNDOCUMENTED ALIENS ARE NOT AMONG THE GROUP OF WORKERS
EXPRESSLY EXEMPTED BY CONGRESS, COME BETWEEN THE BROAD STATUTORY
DEFINITION OF EMPLOYMENT. >>THAT IS PART 2A.
>>EVERYONE ELSE WHO LOOKED AT THIS QUESTION , THE ADMINISTRATIVE LAW JUDGE,
THE NATIONAL LABOR RELATIONS BOARD, INCLUDING REPUBLICAN
APPOINTEES. TO APPEALS COURT JUDGES, INCLUDING ONE REPUBLICAN
APPOINTEE, FOLLOWED THE COURT PRECEDENT AND CAME TO THE
OPPOSITE CONCLUSION THAT YOU DID. I UNDERSTAND THAT YOU MAY
HAVE PREFERRED THE SURE-TAN DISSENT, BUT YOU
FAILED TO FOLLOW SUPREME COURT PRECEDENT. THIS IS A CASE WHERE
THE NATIONAL LABOR RELATIONS ACT INCLUDED THOSE WHO ARE
UNDOCUMENTED AND COULD UNIONIZE TO PROTECT THEMSELVES IN THE
WORKPLACE. YOU AND OUT OF THE WAY TO DISSENT ALL THE WAY ALONG
AND MAKE SURE THAT THEY DID NOT HAVE THAT RIGHT. THAT THEY DO
NOT HAVE THE RIGHT TO UNIONIZE. >>I VERY RESPECTFULLY DISAGREE,
SENATOR. THE REASON I DISAGREE IS THAT THE SUPREME COURT DID
SAY THAT THE EMIGRANT WAS COVERED
UNDER THE DEFINITION OF THE AND ARLEIGH. IT MAKES CLEAR, AS I READ IT,
THAT IF THE IMMIGRATION LAWS HAD MADE EMPLOYMENT UNLAWFULLY, THEN
THAT WOULD BE PROHIBITED IN THE CASE. I WENT BACK, LIKE I SAID,
IF YOU LOOK AT, I QUOTE THE ORAL ARGUMENT FROM SURE-TAN IN MY
DISSENTING OPINION. I HAVE NO AGENDA IN ANY DIRECTION ON — I AM A JUDGE. I’M JUST TRYING
TO RESOLVE THE PRECEDENT. >>LET ME CLOSE BY SAYING THIS, I AM JUST A JUDGE, I JUST FOLLOW
PRECEDENT. WE HAVE HEARD THAT SO OFTEN. I HOPE THAT’S THE CASE,
BUT WE KNOW THAT THERE IS MUCH MORE TO YOUR JOB THAN THAT.
>>I AGREE. >>THE FACT THAT YOU ARE
DISSENTER AND EVERYONE ELSE SAW THIS THE
OTHER WAY SHOULD GIVE US PAUSE WHEN YOU SAY I AM JUST FOLLOWING
PRECEDENT. >>RESPECTFULLY, SENATOR, THAT
OPINION, I AM PROUD OF THE OPINION BECAUSE I THINK IT
CAREFULLY DETAILS THE LAW IN THAT CASE. I AM FOLLOWING THE
SUPREME COURT PRECEDENT. TWO POINT THE OTHER JUDGES DISAGREE,
THERE WAS A CASE THAT I HAD ABOUT 10 YEARS AGO OR 8 YEARS
AGO, WHERE I RULED IN FAVOR OF A CRIMINAL DEFENDANT EVERY OTHER
COURT AGREED. EVERYONE AFTER US
DISAGREE. HE FINALLY GOT TO THE SUPREME COURT IS A CASE. THEY
AGREED WITH OUR OPINION. JUST TO POINT OUT, THEY MIGHT HAVE
DISAGREED, DOES NOT NECESSARILY MEAN THAT
WE WERE NECESSARILY WRONG BECAUSE THE SUPREME COURT
ULTIMATELY DECIDES THAT. I APPRECIATE THEM.>>SENATOR LEE IS GOING TO CHAIR WHILE I HAVE ANOTHER
APPOINTMENT. >>THANK YOU, MR CHAIRMAN. I WAS
GRATEFUL THAT TODAY’S HEARING, AT LEAST AS FAR AS THE COMMITTEE
IS CONCERNED, IS LOT MORE DIGNIFIED AND CIVIL AND
UNFORTUNATE, SOME OF THE HIJINKS CONTINUE, EVEN ON THE SENATE
FLOOR. I KNOW THAT SENATOR McCONNELL ASKED FOR IT TO CONTINUE.
SENATOR SCHUMER OBJECTED, SO SENATOR McCONNELL WAS LEFT WITH
NO OPTION BUT TO ADJOURN THE SENATE. AND ALLOW THE COMMITTEE
TO CONTINUE TO MEET. THAT IS UNFORTUNATE. TO JUDGE, I BELIEVE WE MET IN
THE YEAR 2000. JUST TO TAKE A LITTLE WALK DOWN MEMORY LANE
HERE, WHEN I WAS ATTORNEY GENERAL OF TEXAS, AND
HAD A CHANCE TO ARGUE CASE IN FRONT OF THE REPORT OF THE
UNITED STATES, YOU HELPED ME GET READY. I REGRET THAT YOU DID NOT
HAVE BETTER MATERIAL TO WORK WITH. BUT,
>>IT WAS AN HONOR, SENATOR. >>IT WAS A GREAT EDUCATIONAL EXPERIENCE BUT I GOT TO
APPRECIATE YOUR SKILLS AS A LAWYER AND FOLLOWED YOUR CAREER
CLOSELY SENSE. I AM PROUD TO SUPPORT YOUR NOMINATION BASED ON
MY PERSONAL KNOWLEDGE OF YOUR SKILLS, YOUR TEMPERAMENT, AND
YOUR CHARACTER AND YOUR FIDELITY TO THE RULE OF LAW. BUT I DO
WANT TO PICK ONE BONE WITH YOU. THIS IS NOT UNIQUE TO YOU. BASED
ON THAT EXPERIENCE, THAT CASE, AS YOU MAY RECALL, INVOLVED A
TRADITION IN THE SANTA FE INDEPENDENT SCHOOL DISTRICT
WHICH WAS THE SITE OF A SHOOTING IN MORE
RECENT DAYS, BUT THE PRACTICE BEFORE FOOTBALL GAMES WAS THAT
THE STUDENTS WOULD BE ABLE TO VOLUNTEER TO OFFER A PRAYER
BEFORE THE FOOTBALL GAME. THEY WERE NOT REQUIRED TO DO SO. THE
SCHOOL DID NOT PICK THEM. THEY COULD OFFER AN INSPIRATIONAL
SAYING OR READ A POEM, OR ANYTHING ELSE. THAT WAS A
PRACTICE. UNTIL THE ACLU FILED SUIT AND UNFORTUNATE, IT WAS
HELD TO BE UNCONSTITUTIONAL AND IN VIOLATION OF THE
ESTABLISHMENT CLAUSE. I’M NOT WHEN ASKED FOR YOUR PIN IS,
BECAUSE THIS ISSUE WILL LIKELY COME BACK BEFORE THE COURT, BUT
BECAUSE I MENTIONED IT TO JUDGE CORSETS, I AM GOING TO MENTION
TO YOU. THE THING THAT HAS STUCK IN MY CRAW FOR THE PAST YEARS,
IS THE JET OPINION BY JUDGE REHNQUIST. THEY SAY THE
DISTORTED OPINION, BUT HE GOES ON TO SAY EVEN MORE DISTURBING,
IS THE TONE OF THE COURT’S OPINION. IT BRISTLES WITH
HOSTILITY. TO ALL THINGS RELIGIOUS. AND PUBLIC LIFE.
NEITHER THE HOLDING NOR THE TONE NOR THE OPINION IS FAITHFUL TO
THE MEANING OF THE ESTABLISHMENT CLAUSE. WHEN IT IS RECALL THAT
GEORGE WASHINGTON’S — THAT GEORGE WASHINGTON
HIMSELF PAST THE BILL OF RIGHTS, DECLARED A DAY OF THANKSGIVING
AND PRAYER TO BE ACKNOWLEDGED WITH GRATEFUL HEARTS TOO MANY
AND SIGNAL FAVORS OF THE ALMIGHTY GOD. SINCE I HAD TO HEAR, I THOUGHT
IT WOULD MENTION THAT. >>THANK YOU.
>>I’M ASK YOUR OPINION, BECAUSE YOU WILL BE CALLED UPON TO
DECIDE CASES INVOLVING THE ESTABLISHMENT CLAUSE. SINCE WITH
HISTORY TOGETHER, I WANT TO SAY THAT IT STILL STICKS IN MY CRAW.
>>I UNDERSTAND. THE STICK IN MY CRAW, TO, SENATOR. THERE
IS A VARIETY OF VOICES THAT CAN SPEAK, IT IS GENERALLY A GOOD
THING, BUT IT COULD BE VIOLENCE, SEXISM, IT
COULD BE ABOUT ALMOST ANYTHING, BUT YOU CAN’T SPEAK ABOUT
RELIGION. IN A PUBLIC FORM. >>THERE HAVE BEEN CASES FROM
THE SUPREME COURT, I’M THINKING AND MORE RECENT YEARS, CASES
LIKE THE GOOD NEWS CLUB CASE, CASES LIKE THE TRINITY LUTHERAN
CASE. CASES LIKE THE TOWN OF GREECE CASE , WHERE I THINK THE SPRING COURT
HAS RECOGNIZED THE IMPORTANCE, OF COURSE, OF RELIGIOUS LIBERTY IN THE UNITED STATES. AND ALSO
HAS RECOGNIZED, I THINK, THAT RELIGIOUS SPEAKERS, RELIGIOUS
PEOPLE, RELIGIOUS SPEECH IS ENTITLED TO A SPACE IN THE
PUBLIC SQUARE. AND NOT TO BE DISCRIMINATED AGAINST. I THINK
THE TRINITY LUTHERAN CASE IS AN IMPORTANT ONE ON THAT. THE GOOD
NEWS CLUB CASE IS A CASE WHERE, AS AN AFTERSCHOOL PROGRAM AT A
SCHOOL AUDITORIUM AND A RELIGIOUS GROUP WAS ASKED WHO
DID. THE SUPREME COURT TO CLEAR THE CAN’T JUST EXCLUDE THE
RELIGIOUS GROUP. THERE HAVE BEEN SOME DEVELOPMENTS SINCE THEN IN
TERMS OF RELIGIOUS EQUALITY AND RELIGIOUS LIBERTY THAT ARE
IMPORTANT. THOSE CASES ALWAYS DIFFICULT FACTUALLY, BUT THE
PRINCIPLE HERE, I THINK IS REFLECTED IN SOME MORE RECENT SUPREME COURT PRECEDENTS.
>>I WILL CONCLUDE WITH THIS, AS I UNDERSTAND THE CONSTITUTION
THAT REQUIRES THE GOVERNMENT TO BE NEUTRAL, AND AS CHIEF JUSTICE
REHNQUIST SAID, IN THIS CASE, THE GOVERNMENT EVIDENCED
HOSTILITY TO RELIGIOUS SPEECH IN THE PUBLIC SQUARE. I AM NOT
ASKING YOU FOR ANY OPINION WITH REGARD TO THE CASE THAT MAY COME
BEFORE THE COURT. MR CHAIRMAN, I HOPE THE TIME
WILL NOT BE SUBTRACTED FOR MY 30 MINUTES.
>>IT WILL NOT. >>THANK YOU.
>>SO JUDGE KAVANAUGH, I AM INTRIGUED BY A COMMENT THAT YOU
MADE EARLIER ABOUT THE ROLE OF PRECEDENT. WE HAVE HEARD A LOT
ABOUT RESIDENT. YOU ALLUDED TO A BOOK THAT YOU AND OTHERS WROTE
WITH BRIAN GARNER ON THE LAW OF JUDICIAL PRESENT. I CHECKED IT
OUT, IT IS 900 PAGES LONG. I’VE NOT READ EVERY PAGE OF IT,
EITHER. >>IT IS NOT MEANT TO BE READ
WORD FOR WORD. IT IS A TREATISE WHERE YOU LOOK AT EACH SECTION.
>>WHEN PEOPLE GO TO COURT, SHOULD EXPECT A DIFFERENT
OUTCOME IF THE JUDGE WAS NOMINATED BY REPUBLICAN FROM THE
COURT WHERE THE JUDGE WAS NOMINATED BY DEMOCRAT?
>>NO. THAT IS AN IMPORTANT PRINCIPLE OF JUDICIAL
INDEPENDENCE OF THE JUDICIAL ROLE. THE JUDGES UMPIRE VISION
THAT CHIEF JUSTICE ROBERTS RETICULATED AND I TALKED ABOUT
PUBLICLY MANY TIMES, IS CRITICAL WHEN YOU GO TO A BASEBALL GAME,
THE UMPIRE IS NOT WEARING THE UNIFORM OF ONE TEAM OR ANOTHER.
THAT IS A CRITICAL PRINCIPLE.
>>IT STRIKES ME AS AN IMPORTANT POINT, GIVEN THE SUGGESTION THAT
ONE OF THE REASONS PEOPLE HAVE OBJECTED TO YOUR NOMINATION IS,
I BELIEVE, LOOK WHAT WAS THAT YOU HAVE REPUBLICAN BLOOD
FLOWING THROUGH YOUR VEINS. IT STRIKES ME AS A STRANGE AND
BIZARRE STATEMENT. >>I HAVE BEEN A JUDGE FOR 12
YEARS, SENATOR, AND I HAVE 307 OPINIONS. I’VE BEEN AN
INDEPENDENT JUDGE FOR THIS YEARS. YOU ARE NOT REPUBLICAN OR
DEMOCRAT AS A FEDERAL JUDGE. >>WE TALKED A LITTLE BIT ABOUT
THE CONSTITUTIONAL BASIS FOR A JUDGES OBLIGATION TO APPLY
EXISTING PRECEDENT. COULD YOU EXPAND A LITTLE MORE? I THINK
MOST PEOPLE ARE UNDER THE IMPRESSION THAT THIS IS A
DISCRETIONARY MATTER. AND THAT YOU CAN DRAPE IT BE TO WHICH
PRECEDENTS THAT YOU DECIDE TO FOLLOW AND WHICH ONES YOU DON’T.
>>THERE HAS BEEN A DEBATE ON WHAT ARE THE ORIGINS OF
PRECEDENT. WHY DO YOU FOLLOW PRECEDENT? AS I SEE IT, THERE
ARE A NUMBER OF REASONS YOU WOULD SITE STABILITY, PREDICT
ABILITY, IMPARTIALITY, RELIANCE ENTRANCE — INTEREST. BUT NONE
OF THEM ARE NEAR POLICIES, IN MY VIEW. AS I SEE IT, A SYSTEM OF
PRECEDENT COMES FROM ARTICLE 3 ITSELF. IT REFERS TO THE
JUDICIAL POWER SHALL BE VESTED IN ONE SUPREME COURT AND SUCH
INFERIOR COURTS AS CONGRESS SHALL, FROM TIME TO TIME,
ESTABLISH. TO MY MIND, THE PHRASE JUDICIAL POWER, YOU THINK
WHAT DOES THAT ENTAIL? AND YOU LOOK AT THE MEANING, THE MEANING
AT THE TIME OF JUDICIAL POWER AND DO SEE THAT ONE SOURCE OF
THAT IS FEDERAL 78. IT IS WELL EXPLAINED THAT A JUDGE MAKES
DECISION BASED ON DECISION — PRESIDENT. AND HAS
CONSTITUTIONAL ORIGINS AND CONSTITUTIONAL BASIS IN THE TEXT
OF THE CONSTITUTION. >>I THINK YOU TOUCHED ON THIS
AS WELL. JUDGES, UNLIKE LEGISLATORS, DO NOT RUN FOR
ELECTION. YOU DO NOT HAVE A PLATFORM. YOU DON’T SAY VOTE FOR
ME, THIS IS WHAT I WILL DO IF ELECTED INTO OFFICE. ONE OF THE
MOST IMPORTANT ELEMENTS OF THE — OF LIMITING THE IMPORTANT
ROLE OF JUDGES UNDER THE CONSTITUTION, IS THAT YOU ARE
REQUIRED TO DECIDE A CASE ON A CASE-BY-CASE BASIS. RATHER THAN
ISSUING SOME SORT OF ORACLE, SAYING THAT HENCEFORTH, THE LAW
WILL BE BUS. ASSUMING THAT IF YOU GET EIGHT OTHER JUDGES ON
THE TEAM OF NINE TO AGREE WITH YOU. COULD YOU TALK ABOUT THE
IMPORTANCE OF DECIDING CASES ON A CASE-BY-CASE BASIS?>>WE WILL HAD ANOTHER 20
SECONDS. >>ABSOLUTELY, SENATOR. IT IS
IMPORTANT TO UNDERSTAND. I THINK THAT
SENATOR GRAHAM ALLUDED TO THIS AS WELL, AS JUDGES, YOU DO NOT
JUST ISSUE POLICIES OR ISSUE OPINIONS OUT OF THE BLUE. YOU
DECIDE, AS ARTICLE 3 SAYS, CASES AND CONTROVERSIES. THAT MEANS
THAT THERE IS A PROCESS. LITIGANTS COME INTO THE FEDERAL
TRIAL COURT AND, FOR EXAMPLE, AND LITIGATE AGAINST ONE ANOTHER
AND THERE IS A PROCESS THERE. THERE IS A TRIAL OR SUMMARY
JUDGMENT MOTION. A DISTRICT JUDGE RENDERS A DECISION. THAT
COMES UP TO THE COURT OF APPEALS. IN MY CASE. THERE IS
BRIEFING AND ORAL ARGUMENT. LIKE TO SAY THAT THERE IS PROCESS. I
LIKE TO SEE THE PROCESS PROTECTION. THAT IS SOMETHING
THAT I LIKE TO KEEP IN MIND. YOU GO THROUGH A PROCESS TO MAKE
GOOD DECISIONS. A DELIBERATIVE PROCESS. THE JUDGES ARE VERY
FOCUSED ON PROCESS. HAVING THE ORAL ARGUMENT OF HAVING THE
BRIEFING AND THEN TALKING TO YOUR COLLEAGUES, YOU CAN CHANGE
YOUR MIND. SENATOR, YOU HAVE BEEN A JUDGE, OF COURSE, AND YOU
CAN CHANGE YOUR MINDS SOMETIMES, BASED ON THE COMMENTS OF
COLLEAGUES. THE PROCESS IS IMPORTANT. YOU WRITE AN OPINION.
YOU’RE NOT TRYING TO RESOLVE EVERY ISSUE IMAGINABLE IN THE
OPINION, YOU ARE TRYING TO RESOLVE THIS CASE UNDER THE
PRESIDENT AND TEXT OF THE LAW. AND YOU DECIDE THAT CASE OR
CONTROVERSY. THAT IS HOW JUDGES BUILD UP A SYSTEM OF PRECEDENT
OVER TIME BY LOOKING AT THINGS ONE CASE IT A TRY — TIME, NOT
TRYING TO DO MORE THAN THEY CAN OR SHOULD.>>JUDGE, DO YOU THINK THAT WHAT
YOU HAVE DESCRIBED FOR US IN DECIDING CASES ON A CASE-BY-CASE
BASIS, HAS AN IMPORTANT FOUNDATION IN FAIRNESS TO THE
LITIGANTS? THE PARTIES THAT COME TO YOUR COURT, BECAUSE HOW WOULD
SOMEBODY FEEL IF THEY KNOW YOU HAVE ALREADY ANNOUNCED, IN ALL
CASES THE HAVE TO DO WITH SUBJECT X, THAT I’VE MADE UP MY
MIND TO DON’T CARE WHAT THE FACTS ARE. ISN’T THAT UNFAIR TO
THE LITIGANTS? >>IT CAN BE. WHERE AN OVERBROAD
RULING MAY RESOLVE THINGS THAT MAY BE AFFECTED BY. PEOPLE MAY
HAVE THOUGHT I’M NOT PART OF THE CASE, WHY MY NOW AFFECTED ANY
PARTICULAR WAY. ONE OF THE THINGS I COULD SAY ABOUT HOW I
TRIED TO WRITE MY OPINIONS, IS THAT I’M ALWAYS CONCERNED ABOUT
— I’M ALWAYS CONCERNED ABOUT
UNINTENDED CONSEQUENCES. THIS IS ONE OF THE REASONS I GO THROUGH
SO MANY DRAFTS OF MY OPINIONS AND REALLY WORK THROUGH THEM.
EVEN JUST A SLOPPY FOOTNOTE OR AN AMBIGUOUS WORD OR OPINION, IT
IS TRUE WHEN YOU ARE DRAFTING LAWS HERE AS WELL. IF YOU DON’T
— IF YOU’RE CONCERNED ABOUT UNINTENDED CONSEQUENCES, YOU
NEED TO BE CLEAR IN THE OPINIONS AND EXACTLY PRECISE AND NOT TO
DECIDE TOO MUCH.>>JUDGE, LET ME ASK YOU TO TELL
US A LITTLE BIT ABOUT SEPTEMBER 11, 2001. WHERE WERE YOU WHEN
YOU HEARD THAT THE PLANES HAD HIT THE WORLD TRADE CENTER IN
WASHINGTON, D.C. AND ANOTHER PLANE HIT THE PENTAGON HERE IN
WASHINGTON?. >>I WAS IN THE WEST WING WHEN
THE SECOND TOWER, I REMEMBER THAT IN THE UPSTAIRS COUNSEL’S
OFFICE. WITH A COUPLE OF OTHER PEOPLE IN THE COUNSEL’S OFFICE,
AND THEN, WE WERE USHERED DOWNSTAIRS AND THEN TOLD TO GET
OUT, TO RUN OUT, BECAUSE THERE WAS FEAR, AS WE LATER LEARNED
ABOUT FLIGHT 93, I DON’T KNOW WHETHER IT WAS
HEADED TO THE CAPITAL OR THE WHITE HOUSE OR SOME OTHER
TARGET, OF COURSE, AND THE HEROES OF LIGHT 93 SAVED SO MANY
AMERICANS. THE SACRIFICE THAT WE STILL ALL CELEBRATE IN THE SENSE
OF CELEBRATING THEIR LIVES AND THEIR HAIR WAS IN. AND FOR
SAVING ALL OF US HERE IN WASHINGTON. IT ENDED UP OUT ON
LAFAYETTE PARK WITH THE REST OF THE STAFF, BEWILDERED. IT
CHANGED AMERICA. IT CHANGED THE WORLD. IT CHANGED THE
PRESIDENCY. IT CHANGED CONGRESS. IT CHANGE THE COURTS. IT WAS A
NEW KIND OF WAR. AS PRESIDENT BUSH DESCRIBED , AN ENEMY THAT DID NOT WEAR
UNIFORM AND WOULD ATTACK CIVILIANS. NEW TYPES OF LAWS HAD
TO BE CONSIDERED AND CONGRESS HAD TO WORK THROUGH THAT.
RESIDENT BUSH HAD TO FOCUS SO INTENTLY, AND AS I SAID BEFORE,
MY REMEMBRANCES WAS OUT SEPTEMBER 12 THE BASIC MENTALITY
WAS THAT THIS WOULD NOT HAPPEN AGAIN. AND HAVING TRAVELED WITH
HIM FROM 2003 THROUGH 2006 EVERYWHERE AS STAFF SECRETARY AND SEE HIM
UP CLOSE, I THINK EVERY DAY I WAS WITH HIM DURING THE YEARS,
EVERY MORNING THAT HE GOT UP, IT WAS STILL SEPTEMBER 12, 2001.
THIS WOULD NOT HAPPEN AGAIN. YOU CAN SEE THE FOCUS. HE HAD TO DO
ALL THE OTHER THINGS IN THE PRESIDENCY AND ALL OF THE
LEGISLATIVE AND REGULATORY AND CEREMONIAL ASPECTS, BUT HE WAS
SO FOCUSED ON THAT. I’M SURE THAT HAS BEEN TRUE OF THE
SUCCEEDING PRESIDENTS AS WELL BECAUSE OF THE THREAT THAT STILL EXISTS, OF COURSE.
>>AS WE CAME TO LEARN, OSAMA BIN LADEN AND AL QAEDA WERE
RESPONSIBLE FOR THE ATTACK AND IT HAS MORPHED INTO OTHER
ORGANIZATIONS LIKE ISIS. I WANT TO ASK YOU, YOU HAD TO THEN SIT
IN JUDGMENT LATER ON IN THE CASE, THE HAMDAN CASE . HE SETTLED WENT TO
A MILITARY TRIBUNAL AND THE CASE WAS APPEALED TO YOUR COURT.
CORRECT ME IF I’M WRONG, BUT NOTWITHSTANDING THE EXPERIENCE
YOU AND EVERYBODY YOU CARED ABOUT HAVING BEEN THROUGH THIS
TERRIBLE TRAVESTY OF 9/11, YOU RULED IN FAVOR OF OSAMA BIN
LADEN’S DRIVER AND BODYGUARD.
>>HOW COULD YOU DO THAT? WE’LL THE RULE OF LAW APPLIES TO ALL
WHO COME BEFORE THE COURTS OF THE UNITED STATES.
>>EVEN AND ENEMY COMBATANT? >>EQUAL JUSTICE UNDER LAW. EVERYONE IS ENTITLED.
>>EVEN A NONCITIZEN? >>NONCITIZENS WHO ARE TRIED IN
U.S. COURTS HAVE THE CONSTITUTIONAL RIGHTS. MY MODEL
ON THAT JUDICIAL MODEL, FOR THINKING ABOUT SOMETHING LIKE
THAT, I WAS IT ABOUT WHAT YOU ARE THINK ABOUT. WITH JUSTICE
JACKSON OF COURSE, ROBERT JACKSON HAD BEEN FRANKLIN
ROOSEVELT’S ATTORNEY GENERAL IN THE CASE. EVEN THOSE ONE OF
PRESIDENT ROOSEVELT POLICIES, THE MAJORITY OPINION NOW
OVERRULED. HE VOTED AGAINST THE ROOSEVELT POLICY. JUSTICES CLARK
AND BURTON, TO APPOINT USE OF PRESIDENT TRUMAN, WERE THE TWO
DECIDING VOTES WITH YOUNGSTOWN STEEL. THOSE WITH THE DECIDING
VOTES. THEY WERE BOTH APPOINTEES OF PRESIDENT TRUMAN. IT IS
WARTIME. AGAINST KOREA. THE GET TO THE SUPREME COURT AND THEY
ARE THE DECIDING VOTES IN THE YOUNGSTOWN STEEL CASE, WHICH WAS
AN EXTRAORDINARY NATIONAL MOMENT. YOUR CONCEPTION OF THE
ROLE OF THE JUDGE IS ABOUT THE LAW. THAT IS DISTINCT FROM
POLICY AND OUR JUDICIARY DEPENDS ON HAVING PEOPLE IN IT. WE ARE
FORTUNATE TO HAVE A WONDERFUL FEDERAL JUDICIARY. THE PEOPLE
WHO UNDERSTAND THE DIFFERENCE BETWEEN LAW AND POLICY AND ARE
WILLING TO APPLY THE DISTINCTIONS, EVEN THE MOST
UNPOPULAR POSSIBLE DEFENDANT IS STILL ENTITLED TO DUE PROCESS AND THE
RULE OF LAW. I TRY TO ENSURE THAT AS A JUDGE.
>>IT’S HARD FOR ME TO IMAGINE A MORE UNPOPULAR DEFENDANT THEN
OSAMA BIN LADEN’S DRIVER. I FIND THE SUGGESTION THAT SOMEHOW YOUR
PREJUDICED AGAINST THE SMALL GUY IN FAVOR OF THE BIG GUY, OR THAT
YOU WERE PICKING AND CHOOSING WHO YOU WILL RENDER JUDGMENT IN
FAVOR OF, BASED ON SOMETHING OTHER THAN THE RULE OF LAW, I
THINK THIS ANSWERS THAT QUESTION CONCLUSIVELY FOR ME. THE FACT
THAT YOU COULD SEPARATE YOURSELF FROM THE EMOTIONAL INVOLVEMENT YOU HAVE, ALONG WITH
SO MANY PEOPLE YOU WORK CLOSELY WITH IN THE WHITE HOUSE. ON
SEPTEMBER 11. AND THAT YOU COULD THEN, AS A JUDGE, PUT ON THE
BLACK ROBE AND TAKE THE OATH OF OFFICE. YOU COULD THEN RENDER A
JUDGMENT IN FAVOR OF OSAMA BIN LADEN’S BODYGUARD
AND DRIVER BECAUSE YOU APPLIED THE LAW EQUALLY TO EVERYBODY
THAT COMES TO YOUR COURT. SOMETIMES, — LET ME ALLUDE TO SOMETHING
THAT SENATOR SASSE SAID ABOUT THE
SEPARATION OF POWERS. ONE THAT I KNOW THAT YOU DEALT WITH OFTEN
ON THE DC CIRCUIT COURT OF APPEALS. THAT HAS TO DO WITH
WHAT I HAVE READ SOME JUDGES TALK ABOUT, SOME CONSTITUTIONAL
SCHOLARS TALK ABOUT, A CONVERSATION BETWEEN THE
BRANCHES IN OTHER WORDS, WHEN THE DC CIRCUIT COURT DECIDES A
CASE, THEY FINALLY DECIDE THE CASE.
BUT THEY DO NOT FINALLY DECIDE WHAT THE POLICY IS FOR THE
UNITED STATES OR THE AMERICAN PEOPLE . CORRECT?
>>THAT IS CORRECT, SENATOR. ONE OF THE IMPORTANT THINGS THAT
JUDGES CAN DO IS ADHERE, OF COURSE, TO THE LAWS PASSED BY
CONGRESS. AND THEN IN WRITING THE OPINION, MAKE CLEAR, AND
I’VE DONE THIS BEFORE AND A LOT OF MY COLLEAGUES DO THIS, IS
THAT PERHAPS THE STATUTE NEEDS UPDATING, BUT IF IT DOES, THAT
IS THE ROLE OF CONGRESS TO UPDATE THE STATUTE. SOMETIMES
THERE WILL BE A HOLE IN THE STATUTE OR SOMETHING THAT SEEMS
UNINTENDED IN THE STATUTE. AND TO ALERT CONGRESS TO THAT. CHIEF
JUDGE KATZMAN OF THE SECOND SURFACE — SECOND CIRCUIT. I
SERVE ON THE BRANCH COMMITTEE. HE HAS WRITTEN A BOOK ON
STATUTORY INTERPRETATION. AND HE’S BEEN A LEADER OF PROJECT TO
MAKE SURE THE CONGRESS IS ALERTED OF POTENTIAL STATUTORY
ISSUES THAT LOOK LIKE HE MAY HAVE BEEN THINGS THAT PERHAPS
CONGRESS WOULD NOT HAVE INTENDED, OR LEAST CONGRESS
WOULD WANT BROUGHT TO ITS ATTENTION SO I COULD FIX. THAT PROJECT HAS BEEN VERY
SUCCESSFUL. I THINK THAT EVEN WITHOUT THE PROJECT,
HOW YOU WRITE YOUR OPINIONS, IT IS IMPORTANT. WE DO NOT UPDATE
THE STATUTES. YOU UPDATE THE STATUTES. BUT IT
IS GOOD FOR US TO WRITE OUR OPINIONS IN A WAY TO POINT OUT
POTENTIAL ISSUES THAT CONGRESS MIGHT WANT
TO BE AWARE OF. >>THAT IS PART OF THE
CONVERSATION BETWEEN THE COEQUAL RANCHES OF GOVERNMENT.
>>ABSOLUTELY. I THINK THAT IS AN IMPORTANT DIALOGUE TO HAVE
BETWEEN CONGRESS AND THE JUDICIARY. THE BACK AND FORTH IS
VERY IMPORTANT ON THAT FRONT. I THINK THAT IS ONE THING THAT I’M
ALWAYS THINKING ABOUT IN MY OPINIONS. YOU WRITE TO THE LOSS,
BUT IF THE LAW LOOKS LIKE THERE IS SOME ISSUE WITH IT OR SOME
FLAW THAT MIGHT BE AN UNINTENDED CONSEQUENCE IN THE OPINION, YOU
CAN IDENTIFY IT AND THAT COULD BE SOMETHING THAT CONGRESS CAN
TURN ITS ATTENTION TO SOMETIMES. I’M WELL AWARE THAT STATUTORY
DRAFTING IS A VERY DIFFICULT PROCESS. IT
IS SOMETHING THAT JUDGES NEED TO BE MORE AWARE OF. ABOUT HOW
DIFFICULT THE LEGISLATIVE DRAFTING PROCESSES. EVEN IF
YOU’RE DOING IT IS ONE PERSON, IT WOULD BE DIFFICULT. YOU ARE
DOING IT AS A COLLECTIVE BODY AND THEN WITH THE HOUSE AND WITH
THE PRESIDENT INVOLVED. THERE ARE A LOT OF PEOPLE IN. IT IS
HARD TO HAVE, WITH ALL THE COMPROMISES INHERENT, IT IS HARD
TO HAVE CRYSTAL CLARITY WITH EVERY POSSIBLE TOPIC. AS JUDGES,
WE NEED TO RECOGNIZE THE PROCESS THAT YOU GO THROUGH AS
LEGISLATORS. THAT MEANS ADHERE TO THE COMPROMISES THAT ARE MADE . THE TEXT AS WRITTEN, BUT AS WE
WRITE OUR OPINION, THERE SEEMS TO BE SOMETHING THAT’S NOT
WORKING OUT, IT IS APPROPRIATE FOR JUDGES TO POINT THAT OUT IN
THE OPINIONS. >>OF COURSE, EVEN IF IT IS A
CONSTITUTIONAL BASIS FOR YOUR DECISION, THAT COULD BE CHANGED
BY CONSTITUTIONAL AMENDMENT, CORRECT? WE’LL THAT IS CORRECT
AS WELL. THE FRAMERS DID NOT THINK THE CONSTITUTION WAS
PERFECT. BY ANY STRETCH. THEY KNEW IT HAD IMPERFECTIONS, FOR STARTERS, THE ORIGINAL
CONSTITUTION DID NOT HAVE THE BILL OF RIGHTS. THE FIRST 10
AMENDMENTS. WAS A LOT OF DISCUSSION OF THE RATIFYING
CONVENTIONS ABOUT HAVING A BILL OF RIGHTS. THAT WAS QUICKLY DONE
IN THE FIRST CONGRESS IN NEW YORK IN 1789 BY JAMES MADISON
TAKING THE LEAD ON THAT. BUT THEY DID NOT THINK IT WAS
PERFECT TO HAVE AN AMENDMENT PROCESS THE SPECIFIED IN ARTICLE
5 OF THE CONSTITUTION, AND THAT AMENDMENT PROCESS WAS INTENDED
TO BE USED. WE HAVE SEEN IT USED TO CORRECT STRUCTURAL ISSUES.
THE 12th AMENDMENT ON PRESIDENTIAL ELECTION. THE 17th
A MEMO, AS YOU KNOW WELL ON SENATE ELECTIONS. THE 22nd A
MEMO, WHICH LIMITED PRESIDENTS TO ONLY TWO TERMS. THE 25th A
MEMO, WHICH CORRECTED SOME ISSUES WITH RESPECT TO THE VICE
PRESIDENCY. AND THE 13th, 14th, AND 15th
AMENDMENTS, THE MOST IMPORTANT AMENDMENTS IN THE CONSTITUTION
IN MANY RESPECTS BECAUSE IT BROUGHT TO THE PROMISE OF RACIAL
EQUALITY THAT HAD BEEN DENIED AT THE TIME OF THE ORIGINAL
CONSTITUTION INTO THE TEXT OF THE CONSTITUTION. THE JOB OF THE
PEOPLE, WHICH IS THE CONGRESS AND THE STATE LEGISLATURES, IS
TO AMEND THE CONSTITUTION. IT IS NOT THE JOB OF JUDGES TO DO THAT
ON OUR OWN. A VISA, THAT IS A BASIC DIVIDE
OF CONSTITUTIONAL RESPONSIBILITY, THAT IS SET
FORTH IN THE TEXT OF ARTICLE 5 OF THE CONSTITUTION.
>>AND REMEMBER WHO SAID IT, I THINK JUSTICE JACKSON PERHAPS
SAID THE SUPREME COURT IS ALWAYS RIGHT. IT IS NOT FINAL, BECAUSE
IT IS ALWAYS RIGHT. IT IS RIGHT BECAUSE IT IS FINAL. OR WORDS TO
THAT EFFECT. I THOUGHT THAT THE MORE I GOT INTO THAT, THE MORE I
DISAGREED WITH THAT. BECAUSE, IT IS A CONVERSATION BETWEEN THE
BRANCHES AND IF THE AMERICAN PEOPLE BELIEVE THAT IT IS A
CONSTITUTIONAL MATTER, THE WAY THAT IT IS BEING INTERPRETED, IT
IS WITHIN OUR POWER AS THE AMERICAN PEOPLE, TO
CHANGE OUR OWN CONSTITUTION BY AMENDMENT. THERE ARE PROVISIONS
IN THE CONSTITUTION ITSELF TO DO THAT. IT IS HARD, AND IT SHOULD
BE HARD, BUT ULTIMATELY, THE AUTHORITY THAT WE DELEGATE TO
THE GOVERNMENT FINDS ITS ORIGIN IN THE CONSENT OF THE GOVERNED.
IT IS NOT SOMETHING DICTATED TO US FROM DOWN ON HIGH, FROM THE
MARBLE PALACE OR SOMEWHERE LIKE THAT HERE IN WASHINGTON. IT IS ULTIMATELY, OUR GOVERNMENT
AND OUR RESPONSIBILITY, OUR AUTHORITY TO PROVIDE THE
LEGITIMACY TO THE GOVERNMENT ITSELF. DO YOU AGREE WITH THAT?
>>I AGREE, OF COURSE, WITH THAT. WE THE PEOPLE FORM THE
CONSTITUTION OF THE UNITED STATES. AND THE SOVEREIGNTY, THE
PEOPLE ARE THE ULTIMATE AUTHORITY AND YOU ARE RIGHT
ABOUT JUSTICE JACKSON’S LINE. I THINK IT IS A CLEVER LINE, BUT
ULTIMATELY, I AGREE WITH YOU. I HAVE ALWAYS HAD A LITTLE BIT OF
A PROBLEM WITH THAT LINE. THAT WE ARE INFALLIBLE BECAUSE WE’RE
FINAL. BOTH PARTS OF THAT ARE WRONG IN SOME SENSE. BECAUSE
I NEVER WANT TO THINK OF THE COURT AS INFALLIBLE. AND THEY
ALSO NEVER WANT TO THINK OF IT NECESSARILY IN THE WAY THAT YOU
ARE DESCRIBING, EITHER, BECAUSE THE PEOPLE ALWAYS HAVE AN ABILITY TO
CORRECT THROUGH THE AMENDMENT PROCESS. THE AMENDMENT PROCESS
IS HARD. IT HAS NOT BEEN USED AS MUCH IN RECENT DECADES, BUT AT
THE BEGINNING OF THE COUNTRY, THE MINUTES WERE CRITICAL AND
DRED SCOTT, THE AWFUL EXAMPLE OF A HORRIFIC SUPREME COURT
DECISION THAT WAS THEN CORRECTED IN PART, AT LEAST ON PAPER, IN
THE 14th AMENDMENT. THE 13th AND 14th AMENDMENTS. THAT IS AN
IMPORTANT EXAMPLE, I THINK, PROBABLY THE BEST EXAMPLE, BUT
THE POINT OF THE PEOPLE BEING ABLE TO RESPOND TO A HORRIFIC
DECISION OF THE SUPREME COURT. >>IN FAIRNESS TO JUSTICE
JACKSON, MAYBE HE WAS THINKING, AS I ORIGINALLY THOUGHT, BUT THE
EXPRESSION IS BEING BINDING ON LOWER COURT JUDGES. TRIAL COURT
JUDGES, APPELLATE COURT JUDGES, THE SUPREME COURT DOES HAVE THE
FINAL WORD IN THE FOOD CHAIN OF THE JUDICIARY, BUT ON TERMS OF
THE FUNDAMENTAL AUTHORITY OF THE AMERICAN PEOPLE.
>>I THINK THAT IS PROBABLY RIGHT. I DON’T WANT TO BE —
JUSTICE JACKSON IS ONE OF OUR GREATEST JUSTICES. TO QUESTION
ANYTHING, WHETHER IT IS YOUNG SOME. JUSTICE JACKSON
WROTE SOME OF THE BEST OPINIONS. BUT ON THAT LINE,
I TAKE YOUR POINT. >>LET ME ASK YOU ONE LAST
QUESTION. WE TALKED A LOT ABOUT THE ROLE OF PRECEDENT AND
SENATOR FEINSTEIN TALKED ABOUT . ON OCCASION, THE SUPREME COURT
HAS DECIDED THAT THE DECISIONS ARE JUST WRONG AND CHOSEN TO
OVERRULE THE PREVIOUS DECISIONS. I AM THINKING OF PLESSY VERSUS
FERGUSON, FOR EXAMPLE. DOES A SCAR THE BODY OF LAW. BUT CAN YOU TALK ABOUT THE
EXTRAORDINARY CIRCUMSTANCES UNDER WHICH THE SUPREME COURT
WOULD REVISIT A PRECEDENT? >>BROWN VERSUS BOARD OF
EDUCATION, OF COURSE. IT WAS — IT OVERTURNED PLESSY. PLUS HE
WAS WRONG THE DAY THAT IT WAS STARTED. IT WAS INCONSISTENT
WITH TEXT AND MEANING OF THE 14th AMENDMENT. A GUARANTEED
EQUAL PROTECTION. THE SUPREME COURT IN THE CASE IN 1880, A JURY SELECTION CASE, HAD SAID,
WHAT IS THIS AMENDMENT, BUT THAT THE LAW SHOULD BE THE SAME FOR
THE BLACK AND THE WHITE. AND THE SUPREME COURT, UNFORTUNATELY,
BACKTRACKED FROM THAT CLEAR PRINCIPLE IN THE PLESSY
DECISION. AND A HORRIFIC DECISION, WHICH
ALLOWED SEPARATE BUT EAGLE — EQUAL, AND THEN BROWN VERSUS
BOARD OF EDUCATION CORRECTED THAT 1954. CORRECTED IT ON
PAPER. IT HAS BEEN DECADES. WE ARE STILL SEEKING TO ACHIEVE
RACIAL EQUALITY. THE LONG MARCH FOR RACIAL EQUALITY IS NOT OVER.
BUT AS HE SAID PLENTY TIME FOR, IT WAS THIS SINGLE GREATEST
MOMENT IN SUPREME COURT HISTORY BY, AND SO MANY WAYS. THE UNANIMITY THAT CHIEF JUSTICE
WARREN ACHIEVED, THAT WAS A GREAT MOMENT. THE FACT THAT IT
LIVED UP TO THE TEXT OF THE EQUAL PROTECTION CLAUSE, THE
FACT THAT IT UNDERSTOOD THE REAL-WORLD CONSEQUENCES OF THE
SEGREGATION ON THE AFRICAN-AMERICAN STUDENTS WHO
WERE SEGREGATED INTO OTHER SCHOOLS AND STAMPED WITH A BADGE
OF INFERIORITY. THAT MOMENT IN BROWN VERSUS BOARD OF EDUCATION
IS SO CRITICAL TO REMEMBER IN THE OPINION. THE OPINION IS SO
INSPIRATIONAL. IT IS A RELATIVELY SHORT
OPINION, BUT IT IS VERY POWERFUL. IT IS VERY FOCUSED ON
THE TEXT OF THE EQUAL PROTECTION CLAUSE AND CORRECTING THE AWFUL
PRESIDENT OF PLESSY VERSUS FERGUSON. A GREAT EXAMPLE OF
LEADERSHIP. AND THE LAST POINT I WANT TO MAKE A PROCESS, THEY
KNEW THAT THEY WOULD FACE POPULAR BACKLASH. AND IT SHOWS
INDEPENDENCE AND FORTITUDE. BUT THEY HAD REARGUMENT, WHICH I
THINK IS GOOD. THAT ARGUMENT ORIGINALLY, AND THEN THEY
DECIDED THERE’S LOT GOING ON AND MAYBE NOT EVERYONE HAD SEEN IT
THE SAME WAY. THEY HAD A REARGUMENT. IT IS A GOOD
ARGUMENT FOR PROCESS PROTECTING US. THE TEAM OF NINE, THEY
MENTIONED TODAY, THEY KEEP WORKING ON IT. IT WAS A TEAM OF
NINE AND THE CAME OUT UNANIMOUS. CHIEF JUSTICE WARREN,
THANKFULLY, LET THE COURT IN THAT DECISION. THAT WAS THE
GREATEST MOMENT IN SUPREME COURT HISTORY. SMACK THANK YOU, JUDGE.
>>I HAVE WARDED TWO ADDITIONAL MINUTES TO
SENATOR CORNYN BECAUSE HE WAS
INTERRUPTED. >>>ARE YOU GOOD FOR ANOTHER
HALF HOUR? >>I AM GOOD.
>>IN MY OFFICE, YOU TOLD ME THAT YOU COULD PROVIDE NO
ASSURANCE TO BE THAT YOU WOULD UPHOLD A STATUTE REQUIRING INSURANCE
COMPANIES TO PROVIDE COVERAGE FOR PRE-EXISTING MEDICAL
CONDITIONS. IS THAT STILL TRUE HERE IN PUBLIC?
>>I THINK, IT IS IMPORTANT TO UNDERSTAND THE SENSIBLE APPLY
HERE. THE STATEMENT YOU MADE, IF I RECITED ACCURATELY, THE GIVE
NO ASSURANCE THAT YOU WOULD UPHOLD.
>>SENATOR, JUDGES WANT TO EXPLAIN, BUT WE GET TO ASK THE
QUESTIONS. YOUR THE APPELLATE JUDGE. TODAY, FOR HALF AN HOUR,
I GET TO. IF IT IS STILL TRUE THAT YOU CAN GIVE NO ASSURANCE
THAT YOU WOULD UPHOLD A STATUTE REQUIRING INSURANCE COMPANIES TO
COVER PRE-EXISTING MEDICAL CONDITIONS?
>>TO PREPARE FOR THIS MOMENT, I WENT BACK AND READ.
>>I WOULD REALLY LIKE YOU TO BE AS CAREFUL WITH YOUR TIME AS YOU
CAN BECAUSE I’VE A VERY LIMITED AMOUNT OF TIME WITH YOU. THE
QUICKER YOU CAN GET TO THE ANSWER, IT COULD BE AS SIMPLE AS
YES OR NO. SPIVAK >>I CAN ENHANCE YOUR UNDERSTANDING OF MY ANSWER IF I?
WHEN, I THINK. >>IT IS WHAT YOUR ANSWER ON THE
RECORD. I’M CAPABLE OF UNDERSTANDING AND ON MY OWN.
>>THEN FOR EVERYONE TO UNDERSTAND MY ANSWER. SO THERE
IS NOMINEE PRECEDENT ABOUT HOW JUSTICES AND NOMINEES IN MY
POSITION HAVE ANSWERED IN THE PAST. I WILL BE SUCCINCT. ALL
EIGHT SITTING JUSTICES. >>WE ARE THE HEARING. PEOPLE
WHO ARE IN THE HEARING AND INTERESTED,
HAVE ALREADY HEARD YOU SAYING THIS.
>>I WANT TO UNDERSCORE. ALL EIGHT SITTING JUSTICES OF
THE SPRINKLER HAVE MADE IT CLEAR THAT IT WOULD BE INCONSISTENT
WITH JUDICIAL INDEPENDENCE ROOTED IN ARTICLE 3, TO PROVIDE
ANSWERS ON CASES OR ISSUES THAT COULD
COME BEFORE US. JUSTICE GINSBURG, JUSTICE KAGAN, TALKING
ABOUT PRESIDENT. I WENT BACK. JUSTICE THURGOOD
MARSHALL WAS ASKED REPEATEDLY IN HIS HEARING, WHAT YOU THINK
ABOUT MIRANDA? WHAT YOU THINK ABOUT MIRANDA? WE’LL EVERYONE
ELSE DOES IT IN YOUR ANSWER STILL NO.
>>THE REASON EVERYONE ELSE DOES IT IS ROOTED IN JUDICIAL
INDEPENDENCE AND MY RESPECT FOR PRECEDENCE. IS A COMBINATION FOR
MY RESPECT FOR PRECEDENT AND JUDICIAL INDEPENDENCE. I CANNOT
GIVE ASSURANCES ON A SPECIFIC HYPOTHETICAL.
>>IT’S GOING ON TO ANOTHER SUBJECT, WHICH IS EXECUTIVE
PRIVILEGE. EXECUTIVE PRIVILEGE IS A PRINCIPAL THAT IS FOUNDED
IN THE CONSTITUTION AND THE SEPARATION OF POWERS, CORRECT?
WE’LL THE SUPREME COURT SO ROLLED IN THE UNITED STATES
VERSUS RICHARD NIXON CASE, THAT WAS THE KEY ISSUE IN THE UNITED
STATES. >>THAT IS NOT THE ANSWER TO THE
QUESTION. YOU HAVE ANSWERED A. >>THE SOURCE IS IMPORTANT.
>>THE PRIVILEGE, NEEDS TO BE ASSERTED, DOES IT NOT? THAT IS
TRUE OF PRIVILEGE GENERALLY?>>I DO NOT KNOW WHERE THIS IS
GOING. >>IS A PRETTY STRAIGHTFORWARD.
>>DON’T PREVACID’S — PRIVILEGES NEED TO BE ASSERTED
IN ORDER TO APPLY? >>I THINK AS A GENERAL
PROPOSITION. >>I AM ASKING AS A PROPOSITION.
>>WHO ASSERTS EXECUTIVE PRIVILEGE?
>>ORDINARILY, THAT IS A COMPENSATED QUESTION, SENATOR.
>>WHAT DOES IT COME BACK TO. SPECS
>>IT DEPENDS WHAT YOU’RE TALKING ABOUT. WHAT KIND OF
EXECUTIVE BRANCH TALK TO YOUR TALKING ABOUT. IT DEPENDS. IN MY
EXPERIENCE, >>ULTIMATELY, DOES THE PRESIDENT.
>>THERE’S NOT MUCH PRECEDENT ON THAT. THE SUPREME COURT, THE
SUPREME COURT IN THE UNITED STATES VERSUS RICHARD NIXON.
>>IS IT FAIR TO SAY THAT EXECUTIVE PRIVILEGE BELONGS TO
THE PRESIDENT OF THE UNITED STATES, THE CHIEF EXECUTIVE?>>IT CAN ALSO BELONG TO THE
FORMER PRESIDENT IN THE CASE OF FORMER PRESIDENTIAL RECORDS.
THAT IS ONE CAVEAT THAT I WANT TO PUT ON THEIR.
>>THAT IS A FAIR KATHY OUT. — CAVEAT.
>>THE PURPOSE OF A VICKI DAVE PRIVILEGE IS SUBJECTIVE TO
JUDICIAL REVIEW. >>OF COURSE, BECAUSE UNDER THE
PRESIDENT, IT SAID TWO THINGS. IT SAID EXECUTIVE PRIVILEGE IS
CONSTITUTIONALLY ROOTED. THEY SAID THERE IS NO SUCH THING AS
EXECUTIVE PRIVILEGE. THEY RULED THAT IT WAS WRITTEN IN
POWERS. >>I AM ASKING SOMETHING THAT IS HOW MUCH DO
WITH YOU. IT IS GOING BACK TO A POINT THE MADE BEFORE. WE HAVE
RECEIVED HUNDREDS OF PAGES OF DOCUMENTS THAT SAY CONFIDENTIAL
ACROSS THEM AT AN ANGLE. AND THEN ACROSS THE FRONT, THEY SAY,
CONSTITUTIONAL PRIVILEGE. IS A MEMBER OF THE SENATE, THIS
IS NOT A QUESTION. I’M SPEAKING TO MY COLLEAGUES. FIND MYSELF IN
ANY QUANDARY HERE ABOUT BEING DENIED THIS PARTICULAR
DOCUMENTS, BECAUSE I CANNOT ANY ASSERTION OF THE PRIVILEGE.
THESE DOCUMENTS SUDDENLY APPEARED. SOMEBODY HAD PUT CONSTITUTIONAL PRIVILEGE ON THE
PAGE AND WIPED OUT ALL THE TEXT THAT WAS ON THE PAGE. MY
UNDERSTANDING IS THAT THERE IS ORDINARILY A PROCESS FOR GETTING
TO THAT DETERMINATION THAT ALLOWS FOR, ULTIMATELY, IT
JUDICIAL REVIEW. WE HAVE FAILED TO GET SUBPOENAS OUT OF THE CITY
COMMITTEE FOR DOCUMENTS, SO WE CANNOT TRIGGER IT THAT WAY.
THERE IS NO APPARENT ASSERTION OF EXECUTIVE PRIVILEGE THAT I
CAN FIND IN THE RECORD OF HOW THIS PARTICULAR PAPER GOT HERE.
I JUST WANTED TO ESTABLISH SOME OF THE BASIC GROUND RULES OF
EXECUTIVE PRIVILEGE WITH YOU, BECAUSE I THINK WE AGREE ON
THAT. THINK IT IS COMMONLY AGREED AND
PUT THAT IN THE CONTEXT OF WHAT WE’RE LOOKING AT, PARTICULARLY
WITH RESPECT TO CHAIRMAN LEAHY’S QUESTION EARLIER. SOME OF THE
DOCUMENTS HE IS LOOKING FOR HAVE BEEN PROTECTED BY THE
NON-ASSERTION ASSERTION OF EXECUTIVE PRIVILEGE. IT IS A
CONTINUING PROBLEM IN THE COMMITTEE. WE HAVE HAD
NON-ASSERTION ASSERTIONS OF EXECUTIVE PRIVILEGE. BUT I THINK IT IS IMPORTANT THAT
WE GET THIS RIGHT. >>IT IS CAN I MAKE ONE ADDENDUM
BASED ON MY EXPERIENCES FROM THE TIME? I DON’T THINK THE FORMAL
ASSERTIONS USUALLY OCCUR UNTIL AFTER THERE HAS BEEN A SUBPOENA.
>>THAT IS WHY NOT BE ABLE TO GET A SUBPOENA WADDLES UP THE
PROCESS. THE ROLE OF THE FEDERALIST
SOCIETY AND BRING YOU HERE TODAY HAS BEEN OF INTEREST TO ME. AS
YOU KNOW, WE SPOKE ABOUT A QUITE A LOT WHEN WE MET IN MY OFFICE. MR McGAHN HAS BEEN ASSERTIONS ABOUT YOU
BEING THE NOMINEE. YOU SAID THIS ABOUT PRESIDENT BUSH, THAT HE
THOUGHT IT WAS, AND I’M QUOTING HERE, IMPROPER TO GIVE ONE GROUP
, ESPECIALLY A GROUP WITH INTERESTS IN MANY ISSUES, A
PREFERRED OR FAVORED POSITION IN THE NOMINATION PROCESS. THOSE
WERE YOUR WORDS. YOU ARE SPEAKING TO THE FEDERALIST
SOCIETY. ON ANOTHER OCCASION, YOU WROTE A DRAFT SPEECH FOR
ATTORNEY GENERAL GONZALES. PROBABLY WHITE HOUSE COUNSEL THE
DOLLARS, LOOKING AT THE DAY, AND SAID THE NEW SPEECH THAT AS A
MATTER OF PRINCIPLE THAT IT IS INAPPROPRIATE TO AFFORD ANY AS A
GROUP IT WAS A OFFICIAL ROLE IN THE PRESIDENT’S NOMINATION
PROCESS. HOW DO YOU SQUARE THOSE TWO COMMENTS ABOUT THE ROLE OF
THE AMERICAN BAR ASSOCIATION AND THE NOMINATION PROCESS WITH THE
ROLE OF THE FEDERALIST SOCIETY AND YOUR NOMINATION PROCESS?
ASSUMING THAT MR McGAHN WAS BEING ACCURATE.
>>I CAN SPEAK TO THE ABA PART OF IT. PRESIDENT BUSH, IN 2001,
HAD TO MAKE A DECISION OF HOW THE ABA SHOULD PLAY ITS USUAL
RATING ROLE IN RESPECT TO NOMINEES. THE ABA TAKES FILES
AND POLICY POSITIONS ON ISSUES. AND
THEREFORE, AFTER SOME DELIBERATION, IT WAS DECIDED
THAT THERE IS NOTHING WRONG WITH THE ABA RATING THE NOMINEES, BUT
TO GIVE AN ORGANIZATION THE FILES, AMICUS BRIEFS, AND TAKE
POLICY POSITIONS A PREFERRED ROLE IN THE CONSTITUTIONAL
NOMINATION PROCESS WAS UNFAIR, IN SOME WAYS, —
>>IS A FAIR DESCRIPTION OF THE FEDERALIST SOCIETY ROLE IN YOUR
SELECTION AS NOMINEE IS THAT IT WAS PREFERRED OVER OTHER GROUPS?
>>MY EXPERIENCE WAS WHEN JUSTICE KENNEDY RETIRED ON THE
WEDNESDAY, MR McGAHN CALL ME LATER THAT AFTERNOON AND SAID WE
NEED TO TALK. HE CAME OVER TO MY OFFICE ON FRIDAY EVENING. WE
TALKED FOR THREE OR FOUR HOURS. THERE WAS INTERVIEW GOING
THROUGH THE USUAL KINDS OF QUESTIONS THAT YOU WOULD GO
THROUGH WHEN YOU ARE EMBARKING ON A PROCESS LIKE THIS. I MET
WITH THE PRESIDENT ON MONDAY MORNING.
>>IS IT YOUR TESTIMONY THEY DO NOT KNOW WHAT THE ROLE
OF THE FEDERAL SOCIETY WAS IN YOUR SELECTION?
>>MY EXPERIENCE AND MY PERSONAL EXPERIENCE AND WHAT I KNOW IS
THAT PRESIDENT TRUMP MADE THE DECISION. FOR STARTERS.
PRESIDENT TRUMP MADE THE NOMINATION. I KNOW THAT HE HAS EXPLAINED YESTERDAY,
I KNOW THAT HE SPENT A LOT OF TIME IN THE 12 DAYS ON THIS
ISSUE. I WAS AWARE OF THAT. I ALSO KNOW THAT MR McGAHN WAS
DIRECTLY INVOLVED WITH ME AND SPENT A LOT OF TIME ON THE .
ALSO KNOW THAT THE VICE PRESIDENT —
>>YOU HAVE NO KNOWLEDGE TO SHARE WITH US TODAY ABOUT THE
ROLE OF THE FEDERALIST SOCIETY AND HOW THEY WERE IN THE WHITE HOUSE? IS A MYSTERY
TO YOU AS WELL IS TO US? WE’LL I AM NOT SURE WHAT MR McGAHN
MEANT BY THE COMMENT? I THINK FEDERALIST SOCIETY MEMBERS ARE
— THEY ARE LAWYERS IN THE MINISTRATION, THEY ARE MEMBERS,
SO IT SHOULD NOT BE SURPRISED THAT.
>>BECAUSE IT IS ORGANIZATION. >>I DON’T KNOW. I DON’T KNOW THE SPECIFICS.
>>LET’S GO FROM SPECIFICS TO GENERALS, AND LET ME PUT UP A
GRAPHIC THAT SHOWS SOME OF THE FOLKS WHO FUND THE FEDERALIST
SOCIETY. IT IS A PRETTY SIGNIFICANT GROUP OF PEOPLE WHO
TEND TO SHARE VERY CONSERVATIVE AND PRO-CORPORATE POINTS OF VIEW
. IT REFLECTS AT LEAST 14 OF THE DONORS ARE
ACTUALLY ANONYMOUS. THAT IS A VERY UNFORTUNATE PART OF OUR
CURRENT POLITICAL WORLD. PROBABLY MORE THAN THAT, BECAUSE
DONORS TRUST HERE IS AN ORGANIZATION WHOSE SOLE PURPOSE
IS TO LAUNDER THE IDENTITY OFF OF IT DONORS THAT A RECIPIENT OF
FUNDS CAN REPORT THAT THEY GOT THE MONEY FROM DONORS TRUST,
RATHER THAN THE TRUE PARTY THAT WE DON’T KNOW HOW MUCH ANONYMOUS
MONEY FLOWED THROUGH THEM. BUT, I WOULD CONTEND THAT THIS IS A
PRETTY STRONG GROUP OF RIGHT-WING CONSERVATIVE,
PRO-CORPORATE FUNDERS. PRESUMING THAT TO BE TRUE, SHOULD THAT
GIVE YOU OR ANYONE IN THIS PROCESS, PAUSE THAT TO GROUPS
LIKE THIS MAY HAVE HAD SUCH A SIGNIFICANT ROLE IN SELECTING YOU TO BE IN THIS
SEAT TODAY? >>SENATOR, MR McGAHN WAS THE
ONE WHO CONTACTED ME. I INTERVIEWED WITH THE PRESIDENT.
ANOTHER PRESIDENT — I WAS THE PRESIDENTS NOMINEE. I KNOW HE
CONSULTED WITH MR McGAHN AND OTHERS. I KNOW HE CONSULTED
WIDELY TO GET INPUT ON THE FINALIST. SO THAT PART OF
IT, MY 12 DAY EXPERIENCE WAS WITH THE WHITE HOUSE COUNSEL’S
OFFICE AND THE PRESIDENT AND VICE PRESIDENT. I’M NOT FAMILIAR
WITH WHATEVER THE ROLE IS. >>WHATEVER THE ROLE OF THE
FEDERALIST SOCIETY WAS IN ALL THIS, THERE’S PLENTY OF
REPORTING, WE DO NOT NEED TO LITIGATE. YOU DO NOT KNOW, THAT
IS WHAT YOU HAVE TESTIFIED. >>MY PROCESS.>>WHICH ARE FAIRLY SIMILAR WITH
THE PROCESS GENERALLY, BECAUSE USED TO RUN IT IN THE BUSH WHITE
HOUSE. YOU HAD A SIGNIFICANT ROLE IN IT. THE PROCESS OF
JUDICIAL NOMINEE SELECTION, CORRECT? YOU HAVE BEEN INSIDE
THE MACHINE. >>I DID NOT RUN IT. JUDGE
GONZALES WHEN I WAS THE COUNSEL’S OFFICE, WAS IN THE
COUNCIL. >>THAT YOU ARE INSIDE THE
PROCESS? >>I HAVE BEEN INSIDE THE
PROCESS, NEXT — YES. >>GOING FORWARD, WE SEE THE
JUDICIAL CRISIS NETWORK SHOWING UP AND THEY SPEND MILLIONS AND
MILLIONS AND MILLIONS AND MILLIONS OF DOLLARS TO RUN ADS
URGING SENATORS TO SUPPORT YOU. I DON’T KNOW WHETHER WE CAN SHOW
THAT THOSE WITH THE SAME FUNDERS, BECAUSE THEY ARE
ENGAGED IN WHAT IS CALLED DARK MONEY FUNNY — FUNDING. THEY DO
NOT REPORT THE DONATE . I WOULD MAKE A VERY SENTENTIAL
BUT THAT THERE IS ENORMOUS OVERLAP BETWEEN THE FUNDERS OF
THE JUDICIOUS CRY SO — CRISIS NETWORK CAMPAIGN FOR YOUR
NOMINATION, AND THE FEDERALIST SOCIETY DONOR GROUP TO THE
EXTENT THAT WE ARE AWARE OF IT, SINCE SO MANY OF THEM ARE
ANONYMOUS. >>HYPOTHETICALLY., SHOULD THE
AMERICAN PEOPLE HAVE CONCERN ABOUT THE ROLE OF VERY BIG
SPENDERS AND INFLUENCERS DOING THINGS LIKE BEING INVOLVED IN
THE SELECTION OF A SUPREME COURT NOMINEE AND RUNNING DARK MONEY
CAMPAIGNS TO SUPPORT THE CONFIRMATION OF THE NOMINEE? IS THERE ANY CAUSE FOR CONCERN
THERE IS A GENERAL PROPOSITION? >>THERE ARE A LOT OF MISSES IN
YOUR QUESTION. >>I’M NOT ASKING YOU TO ACCEPT THE PREMISES TRUE. MSU TO ACCEPT
THE HYPOTHETICAL. IF THERE WERE VERY SIGNIFICANT BIG SPECIAL
INTEREST FUNDING BEHIND THE ORGANIZATION THAT WAS
RESPONSIBLE FOR SELECTING YOU AND RECOMMENDING TO THE
PRESIDENT THAT HE NOMINATE YOU, AND AGAIN, FROM A VERY SIMILAR
GROUP, IN SUPPORTING THE DARK MONEY CAMPAIGN ON BEHALF OF YOUR
CONFIRMATION, WITH A BE A MATTER OF CONCERN, WHERE IS THAT FINE
AND WE SHOULD NOT CARE ABOUT GETTING THE ANSWERS?
>>TWO THINGS, ONE IS THAT I DESCRIBED THE PROCESS THAT WENT
WITH MR McGAHN, THE PRESIDENT, THE
VICE PRESIDENT. THAT’S WHAT I KNOW ABOUT MY PROCESS. ALSO,
THERE ARE LOT OF ADS AGAINST ME AS WELL. I HAVE SEEN THOSE. OUR
FAMILY HAS SEEN THOSE. AND THEN THERE ADS FOR ME. AS CHIEF JUSTICE ROBERTS SAID
HIS HEARING, IT IS A FREE COUNTRY AND THERE ADS FOR AND
AGAINST. >>DO YOU KNOW WHO THEY ARE, WHO IS
FUNDING THE ADS, AS A MATTER OF CITIZENSHIP?
>>I THINK THAT IS A POLICY QUESTION FOR CONGRESS TO DECIDE
ON WHAT DISCLOSURE REQUIREMENTS IT WANTS TO PUT IN. IF THOSE
CLOSE — DISCLOSURE REQUIREMENTS WERE PUT IN WHERE STATE
GOVERNMENTS COULD MAKE DISCLOSURE REQUIREMENTS, THEN THERE WOULD UNDOUBTABLY BE
CHALLENGES TO THAT. WHETHER THE FIRST AMENDMENT APPLICATIONS OF
THAT. THAT WOULD COME TO A COURT. I WOULD KEEP AN OPEN MIND
ON THAT CASE UNDER THE PRESIDENT OF FIRST AMENDMENT LAW. THE POLICY QUESTION IS FOR
CONGRESS TO DETERMINE, ASSESS, STUDY, EXACTLY WHAT SORT OF
DISCLOSURE REQUIREMENTS SHOULD BE PUT IN PLACE.
>>UNDERSTAND THE POTENTIAL HAZARD THERE. IT IS AT THE
UNLEASHED POWER OF UNLIMITED POLITICAL DARK MONEY THEN
BECOMES LIKE A RATCHET. AN OBSTACLE TO SOLVING THE PROBLEM.
I HOPE YOU CAN UNDERSTAND THAT AS A MATTER OF LOGICAL
PRINCIPLE. >>I DO UNDERSTAND THE CONCERNS
ABOUT MONEY IN THE POLITICAL SYSTEM. WHEN I WORKED — IN THE TIME IT TAKES ALL OF
YOU, WHEN I WORKED FOR PRESIDENT BUSH IN THE 2003 AND 2004
TIMEFRAME AND HOW MANY FUNDRAISERS HE HAD TO DO AND
GOING BACK TO THE SEPTEMBER 11 POINT AND THE TIME AND BURDENS
ON THE PRESIDENCY, HE HAD TO DO A LOT OF FUNDRAISING. RUNNING
FOR PRESIDENT WHILE BEING PRESIDENT —
>>MY MUST BE EASIER NOW. YOU CAN JUST SET UP OF 501(C) FOUR
AND THE PUBLIC DOES NOT KNOW WHO IS BEHIND IT AND VERY FEW PEOPLE
ARE AWARE OF WHAT THE DEAL IS. >>IT IS GOTTEN EASIER SINCE
PRESIDENT BUSH, BUT NOT BETTER. >>FOR SOME MEMBERS, SPECIAL
HOUSE, IF YOU’RE RUNNING FOR A REELECTION AND A THIRD-PARTY
GROUP OPPOSES YOU, AT LEAST AS I UNDERSTAND, THAT’S PART OF THE
CONCERN I’VE HEARD OVER THE YEARS GENERALLY. THE TIME THAT
EACH OF YOU HAS TO SPEND AND THE MEMBERS OF THE HOUSE HAVE TO
SPEND. >>LET ME CONTINUE FORWARD
THROUGH THE PROBLEM OF FUNDERS. ON THE COURT, ON THE D.C.
CIRCUIT AND POTENTIALLY ON THE SUPREME COURT, YOU OFTEN SEE
CASES BROUGHT BY GROUPS LIKE THE PACIFIC LEGAL FOUNDATION. ARE
YOU FROM OR THE GROUP? >>I HAVE SEEN BRIEFS BY THE
PACIFIC LEGAL FOUNDATION. >>YOU KNOW WHAT THEY DO?
>>I WILL TAKE YOUR DESCRIPTION.>>MY DESCRIPTION IS THAT THEY
GET MONEY FROM RIGHT-WING CONSERVATIVE AND CORPORATE
INTERESTS AND THEY LOOK FOR CASES AROUND THE COUNTRY THAT
THEY BELIEVE THEY CAN USE TO BRING ARGUMENTS BEFORE THE COURT
. I ARGUED AGAINST THEM IN THE SUPREME COURT AT ONE POINT. THEY
CAME ALL THE WAY ACROSS THE COUNTRY TO THE SHORES OF RHODE
ISLAND TO HIGHER A CLIENT WHOSE CASE IT COULD TAKE TO THE
SUPREME COURT WITH A PURPOSE TO MAKE A POINT. THEY ARE NOT ALONE
IN DOING THIS. THERE ARE A NUMBER OF SIMILAR GROUPS WHO
PERFORM THIS SERVICE. IT CAUSES ME TO THINK THAT
SOMETIMES, THE TRUE PARTY IN INTEREST IS ACTUALLY NOT THE
NAMED PARTY BEFORE THE COURT. BUT RATHER, THE LEGAL GROUP THAT
HAS HIRED THE CLIENT AND BROUGHT THEM TO THE COURT, MORE OR LESS
AS A PROP IN ORDER TO MAKE ARGUMENTS TRYING TO DIRECT THE
COURT IN A PARTICULAR DIRECTION. IS THAT AN UNREASONABLE CONCERN
FOR US TO HAVE ABOUT THE PROCESS?
>>SENATOR, I THINK THERE ARE PUBLIC INTEREST LITIGATION
GROUPS SPANNING THE IDEOLOGICAL SPECTRUM THAT LOOK FOR CASES TO
WEIGH IN ON AS AMICUS BRIEFS . HISTORICALLY, THERE THIS WEEK WE LOOK FOR, AS I
UNDERSTAND, PEOPLE TRY TO IDENTIFY SUITABLE PLAINTIFFS TO
CHALLENGE. THIS IS ACROSS THE ENTIRE IDEOLOGICAL SPECTRUM.
>>WHAT IS THE SIGNAL THAT IT IS GOTTEN OUT OF HAND? THAT THERE’S
SOMETHING ROTTEN IN DENMARK? WE’LL THAT IS AN INTERESTING
QUESTION, SENATOR, AND I THINK IT IS AN IMPORTANT ONE. IT’S NOT
WHETHER I HAVE A GREAT ANSWER TO.
>>LET ME PROPOSE ONE THOUGHT TO YOU. THAT THE SUPREME COURT
FIXES RULES ON WHO THEY ARE AND DISCLOSE WHO IS BEHIND THEM. THE
ONLY THING THE SUPREME COURT IS REQUIRED TO DO IS DISCLOSE WHO
PAID FOR THE BRIEF. THAT IS NOT A BIG EXPENSE. VERY POWERFUL
GROUPS CAN COME BEHIND AND AMICUS GROUP THAT HAS A VERY
NICE DAY MIKE PROSPERITY AND PUPPIES, AND NOBODY KNOWS WHO IS
REALLY THE INTEREST. THAT WOULD BE ONE THING THAT COULD BE OF
CONCERN. ANOTHER THING THAT COULD BE OF CONCERN, WE THINK,
IS THAT WE SEE THE SPECIAL INTEREST GROUPS RUSHING OUT AND
TRYING TO LOSE CASES, IN ORDER TO GET BEFORE FRIENDLY COURT, IT
REALLY SEEMS IMPROBABLE AS SOMEONE WHO HAS TRIED CASES AND
BEEN AROUND COURT ROOMS A LOT AND WHO HAS SEEN A LOT OF
LITIGATION AND A LOT OF GREAT LITIGATORS. I HAVE NEVER SEEN
ANYBODY ONCE TRIED TO LOSE A LEGITIMATE CASE. IN THE WAKE OF
JUSTICE ALITO’S SIGNALING ABOUT WHAT BECAME FRIEDRICHS AND
JANICE, TO SEE THESE GROUPS RUSH OUT AND ASK THE COURT TO RULE
AGAINST THEM SO THEY CAN GET HOT FOOT UP TO
THE SUPREME COURT, WHERE THEY EXPECT A GOOD OUTCOME, TO ME,
THERE IS SOMETHING THAT DOES NOT SEEM RIGHT ABOUT THAT. IT SEEMS
A LITTLE BIT LIKE FALSE LITIGATION. AS OPPOSED TO
PARTIES HAVING REAL ARGUMENTS IN THE SUPREME COURT SETTLING
PROPERLY REPAIRED — PREPARED, REAL DISPUTES. ARE YOU CONCERNED
ABOUT THE OPTICS OF PEOPLE RUSHING TO LOSE CASES TO COME BEFORE WHAT THEY THINK
IS A FRIENDLY SUPREME COURT? DOES IT SEEM A LITTLE BIT ODD?
>>>>I ACKNOWLEDGE, SENATOR, I’M
NOT ENTIRELY FAMILIAR WITH THAT PHENOMENON. WOULD BE INTERESTED.
>>MY FOLLOW UP WITH YOU WITH A QUESTION FOR THE RECORD,
TO GET YOUR MORE DELIBERATE THOUGHTS ABOUT IT.
>>AND ON YOUR AMICUS THOUGHTS, I’M INTERESTED IN THE SPECIFICS
OF YOUR PROPOSAL. IS CERTAINLY, IF CONFIRMED —
>>HERE’S THE CONCERN. YOU KNOW PERFECTLY WELL THAT THE COURT
DEPENDS ON AS MUCH OF — IS ANYTHING, ON REPUTATION.
IF YOU DON’T HAVE A PURSE. YOU DON’T HAVE AN ARMY. YOU STAND
UNDER REPUTATION IN THE JUDICIARY. YOU MUST NOT ONLY ACT
JUSTLY, BUT BE SEEN TO ACT JUSTLY. WHAT I’VE LAID OUT IS A
SCENARIO IN WHICH A VERY BIG SPECIAL INTERESTS HAVE A
SIGNIFICANT ROLE IN FUNDING THE GROUP THAT, I BELIEVE, AND MUCH
REPORTING SAYS, IS RESPONSIBLE FOR GETTING YOU TO THE TOP OF
THE GREASY POLE OF NOMINEE SELECTION. AND AT THE SAME —
AND AT THE SAME FUNDERS ARE BEHIND THE OPERATION THAT IS
POLITICALLY PUSHING FOR YOU.>>SENATOR WHITEHOUSE, WE WILL
ADD ONE MINUTE YOUR TIME BECAUSE OF THE INTERRUPTIONS.>>THAT SOME PORTION OF THE
SUPREME COURT’S DOCKET IS MADE UP OF STRATEGIC CASES, RATHER THAN REAL
LITIGATION, IN WHICH SOMEONE HAS GONE OUT TO FIND AN APPROPRIATE
PLAINTIFF, HIRE THE CLIENT, BRING THEM IN, AND WHEN THEY ARE
DONE WITH THEM, THEY FIRE THE CLIENT, IN MY EXPERIENCE, AND
WITH THE PROPER CASE COMES UP, YOU WILL SEE A FLOOD OF SPECIAL
INTERESTS WITH TERRIBLE TRANSPARENCY BEHIND WHAT IS HIDE
THEM. AND WE HAVE ONE OF THESE BIG FUNDING GROUPS. THE WHOLE
AMICUS THING BEGINS TO HAVE A RANK ODOR TO IT. AT THE END OF
THE DAY, WHEN IT STARTS TO GO HAYWIRE, IN MY VIEW, IS WHEN YOU
GO BACK TO THE 5-4 DECISIONS THAT I TALKED ABOUT YESTERDAY. I
THINK IT IS THE MOST HEARTBREAKING THING THAT I
EXPERIENCED IN MY POLITICAL LIFE. I USE TO ARGUE IN FRONT OF
APPELLATE COURTS. IT WAS WHAT I DID. NOT AT YOUR LEVEL, BUT I’VE
BEEN IN FRONT OF THE FIRST CIRCUIT A LOT. I’VE BEEN IN
FRONT OF THE SUPREME COURT ONCE. I KIND OF THOUGHT THAT I WAS A
REASONABLY GOOD APPELLATE LAWYER. THE IDEA THAT OUR
SUPREME COURT IS DECIDING AS MANY AS 80 CASES UNDER JUSTICE
ROBERTS ON A PURE PARTISAN DIVIDE, I THINK THAT HAS A REAL
SIGNALING PROBLEM. I HOPE THAT YOU WILL AT LEAST CONSIDER THAT
THAT IS SOMETHING THAT THE COURT NEEDS TO CURE, RATHER THAN MAKE
WORSE IN ITS CREDIBILITY. I THINK IN ANY
CASE WERE ALL REPUBLICANS GO ONE WAY CANNOT BRING A SINGLE —
DEMOCRAT APPOINTEE WITH THEM. THAT IS A
TOUGH DATA POINT. WE LOOK AT THE TUFTED APPOINTED YOU WILL SEE
THAT MORE THAN 90% OF THOSE CASES, IF YOU LOOK BEHIND AT THE
OUTCOME, IT HAD A BIG — ONE OF THE INTEREST OF THE ME TO THAT
WERE VERY IMPORTANT TO SPECIAL INTERESTS, AND WHO WERE
REPLICATED. THEN WE LOOK AT THE WIN LOSS RATE, AND IS 100%. 100%
FOR THIS BIG CROWD OF SPECIAL INTERESTS? THIS IS WHERE YOU
COME IN AT THE END. THIS IS THE ROBERTS 5 MAJORITY IN THESE 5-4
CASES WHERE THE CONSERVATIVE GROUPS HAVE COME IN TO MAKE THE
PITCH. THEY HAVE 192% OF THE TIME IN THOSE FIVE MINUTES FOR
CASES. IF YOU THROW IN A COUPLE OF LONG
BALLS, LIKE HAIL MARYS, MAYBE THAT IS A %, THAT IS A HELL OF A
RECORD. WHEN YOU LOOK AT YOUR RECORD ON THE D.C. CIRCUIT WHERE THE
CONSERVATIVE GROUPS COME IN, YOU WILL LINE RIGHT UP. 91%.
92%. I THINK WHAT HE PUT THE WHOLE SAGA TOGETHER, FROM THE
BIG SPECIAL INTEREST WORKING BEHIND THE FEDERALIST SOCIETY TO
THE BIG SPECIAL INTEREST FUNDING THE JUDICIOUS — JUDICIAL CRISIS
NUMBER. THE SPECIAL INTEREST BEHIND THE PACIFIC LAW
FOUNDATION AND THE WASHINGTON LAW FOUNDATION. AN ARRAY OF
STRATEGIC LITIGATORS. WERE FUNDED BY CORPORATE INTERESTS
AND RIGHT-WING INTEREST. AND THEN THESE AMICI, WE DO NOT KNOW
WHO IS BEHIND THE. AND YOU SEE THIS RESULT. THAT IS A TABLEAU
THAT IS ALARMING FOR THE COURT. I WOULD URGE YOU TO THINK HARD
ABOUT WHETHER THAT IS THE DIRECTION YOU WOULD WANT TO
CONTINUE TO GO AS AN ASSOCIATE JUSTICE OF THAT COURT. AT SOME
POINT, THOSE NUMBERS CATCH UP WITH YOU. AT SOME POINT, AS I
SAID YESTERDAY, THE PATTERN IS EVIDENCE OF BIAS.>>SENATOR, A COUPLE OF
THOUGHTS. FIRST ON THE AMICUS BRIEFS, ICE — I PAY ATTENTION
TO THE PARTIES AND THE BRIEF. BUT I TAKE YOUR POINT OF THE
DISCLOSURE. I WOULD BE INTERESTED IN THE SPECIFICS OF
ANYTHING YOU’RE TALKING ABOUT FOR THE DISCLOSURE REQUIREMENT
FOR THE SUPREME COURT. I DO BELIEVE DEEPLY IN THE IDEA THAT
WE ARE A TEAM OF NINE AND NEED TO BE WORKING TOGETHER. I TAKE
THE POINT THAT IF I AM CONFIRMED AS BEST I CAN AND I WILL, TO
MAINTAIN THE CONFIDENCE OF ALL AMERICAN PEOPLE . I’M AWARE THAT ULTIMATELY — I AM AWARE THAT EVERYTHING I DO,
IF I’M GOING TO BE CONFIRMED, WOULD HELP AFFECT THAT. HOW I
DECIDE, WHAT I WRITE. HOW A TREAT LITIGANTS IN THE ORAL
ARGUMENTS. EVERYTHING GOES INTO HOW I BEHAVE AND WHAT I DO IN MY
VOLUNTEER TIME. EVERYTHING GOES INTO THE IMPRESSIONS OF ME AS
ONE PART, IF I AM CONFIRMED, OF THE SPRING COURT. A SEE YOUR
DAUGHTER POINT OF THE INTEGRITY AND INDEPENDENCE OF THE SPRING
COURT. DISTRICT SUPREME COURT.
>>MY TIME HAS EXPIRED. >>I WOULD BE HAPPY TO GIVE YOU AN
ADDITIONAL MINUTE BECAUSE YOU’VE HAD TO INTERRUPTIONS.
>>THIS IS NOT AN OFFSHORE STORM. IT HAS MADE LANDFALL.
WHEN YOU SEE THE POLLING THAT SHOWS THAT 49% OF AMERICANS IT A
CORPORATION WILL GET A FAIRER SHOT IN THE SUPREME COURT THAN
AN INDIVIDUAL. SEVEN TIMES AS MANY THINK IT’S THE OTHER WAY. YOU STILL HAVE A FEW TO WORK
WITH WHO ARE UNDECIDED ON THE QUESTION. BUT IF MORE THAN HALF
OF AMERICANS BELIEVE THAT CORPORATIONS LOVE A BETTER CHANCE IN THE SPRING COURT THAT
HUMAN BEINGS WILL, AND WHAT I SHOW YOU ABOUT THE SUPREME
COURT’S RECORD OF 80 PARTISAN DECISIONS, 92% INVOLVING BIG
CORPORATE SPECIAL INTERESTS, AND 100% WIN RATE FOR THOSE CASES. I
THINK WE’RE IN A TOUGH PLACE RIGHT NOW. WE REALLY NEED TO GET
BACK AWAY FROM THAT. THANK YOU. >>THANK YOU, SENATOR
WHITEHOUSE. JUDGE KAVANAUGH, I WANT TO GET BACK TO A COUPLE OF
QUESTIONS AT MY COLLEAGUE, SENATOR WHITEHOUSE , WAS ASKING A MINUTE AGO. TO BE
CLEAR, DID ANYONE FROM THE FEDERALIST SOCIETY CONTACT YOU
ABOUT THE VACANCY AFTER JUSTICE KENNEDY MADE HIS ANNOUNCEMENT
THAT HE WOULD BE STEPPING DOWN FROM THE COURT?
>>NO. >>DURING THE CAMPAIGN OF
PRESIDENT TRUMP, AS I RECALL, HE CAME OUT WITH TWO DIFFERENT
LISTS. TWO DIFFERENT LISTS OF POSSIBLE SUPREME COURT NOMINEES. THE
FIRST LIST HAD 11 NAMES ON IT. THE SECOND LIST, IF I AM NOT
SEEING, HAD 21 NAMES ON IT, WHICH INCLUDED THE PREVIOUS 11.
THERE WERE REPORTS OF THE TIME THAT SOME OUTSIDE GROUPS HAD HAD
SOME INVOLVEMENT IN THAT. RE-INVOLVED IN THE FIRST LIST?>>I WAS NOT.’S IN THE SECOND
LIST? WE’LL I WAS NOT. YOU BECAME UNDER CONSIDERATION ONLY
AFTER PRESIDENT TRUMP TOOK OFFICE.
>>THAT IS MY UNDERSTANDING. THAT IS WHEN I WAS IDENTIFIED.
>>AFTER HE HAD HIS OWN STAFF WITH HIM IN THE WHITE HOUSE. WITHIN THE SUPREME COURT , IS IT THE CASE THAT THERE IS
AN AISLE, MUCH LIKE THERE IS IN THE UNITED STATES SENATE.
>>THERE IS NO AISLE OR SEPARATE CAUCUS ROOM IN THE SUPREME
COURT. EITHER LITERALLY OR FIGURATIVELY, IN MY VIEW.>>UNDER MOST CIRCUMSTANCES AND
IN MOST YEARS, IN THE PAST DECADE OR SO, THE NUMBER OF CASES THAT ARE
DECIDED ON A 5-4 MARGIN HAVE A VERY LOW, LESS THAN 20%, AS BY
FAR AS I CAN COUNT. IS THAT CONSISTENT WITH YOUR
UNDERSTANDING? WE’LL >>IT IS.
>>MEANING THAT THE CONFIGURATION OF 5-4 IS MORE
COMMON THAN ALL THE OTHERS. IT IS
DWARFED IN COMPARISON TO ALL OF THE CASES THAT ARE DECIDED MINE
— MY MONEY ZERO, WHICH IS THE BIGGEST CONTENTION, OR 7-2 OR
6-3. FOR CASES THAT ARE DECIDED 5-4,
DOES THE FACT THAT IT WAS DECIDED 5-4 MAKE IT LESS OF A LEGITIMATE
DECISION? DOES IT MAKE THE JUDGMENT ANY LESS BINDING ON THE
PARTIES IN THAT CASE? >>IT IS STILL A DECISION OF THE
COURT. NO MATTER WHAT THE ULTIMATE MAJORITY OPINION IS.
>>WOULD IT BEHOOVE A LAWYER WHO WAS AN OFFICER OF THE COURT TO
CALL INTO QUESTION THE SUBJECTIVE MOTIVATIONS OF A
COURT , SIMPLY BECAUSE OF THE FACT
THAT THE COURT DECIDED THE CASE ON A 5-4 BASIS?
>>IF I WERE A LAWYER ARGUING BEFORE THE SPRING COURT, I WOULD
PROBABLY REFRAIN FROM QUESTIONING. I WOULD REFRAIN FROM QUESTION
THE MOTIVATIONS OF THE JUSTICES. I KNOW THEM. THEY ARE ALL COMMITTED TO THE
CONSTITUTION. AND THEY ARE IMPARTIALLY DISCHARGING THEIR
DUTIES. THEY HAVE DIFFERENT PERSPECTIVES ON CERTAIN ISSUES,
BUT THEY ARE — WE’RE FORTUNATE TO HAVE EIGHT HARD-WORKING
JUSTICES WHO HAVE OUTSTANDING RECORDS AND COMMITTED TO THE
INDEPENDENCE OF THE JUDICIARY. >>WOULD IT BE FAIR TO SUGGEST
THAT THE CASE IS LESS LEGITIMATELY DECIDED IF IT WERE
DECIDED ALONG THE LINES OF WHICH PRESIDENT APPOINTED EACH MEMBER
OF THE D.C. CIRCUIT ? >>THE PRESIDENT — THE PRECEDENT STANDS, EITHER
WAY. >>I WANT TO GET BACK TO A
SEPARATION OF POWERS POINT THAT HAS COME UP ALONG VARIOUS LINES
OF QUESTIONS ASKED BY MY COLLEAGUES TODAY. IS THE
CONSTITUTION RELEGATED TO THE JUDICIAL BRANCH? IT IS SOMETHING
THAT NEEDS TO BE UPHELD AND INTERPRETED ONLY BY THOSE WHO
WEAR BLACK ROBES? >>LET ME TAKE YOU THROUGH THE
PROCESS. CONGRESS, OF COURSE, PASSES LAWS. AND CONSIDERING
LAWS, THEY WILL OFTEN ASSESS THE CONSTITUTIONALITY OF THE LAWS
PASSED. WHEN YOU ARE CONSIDERING THE PASSAGE OF THE LAW, YOU
MIGHT ASSESS THE FIRST AMENDMENT IMPLICATIONS OR, IF IT IS IN
NATIONAL SECURITY, THE FOURTH AMENDMENT IMPLICATIONS, OR THE
DUE PROCESS FIFTH AMENDMENT APPLICATIONS.
>>AND WE HAVE TO GET OUR OWN OATH TO UPHOLD THE CONSTITUTION.
>>WE DO OUR BEST. EXECUTIVE BRANCH AS WELL. WHETHER TO SIGN THE BILL FOR THE
PRESIDENT. THE PRESIDENT HAS A CONSTITUTIONAL CONCERN, OR A
POLICY CONCERN, BUT THE PRESIDENT COULD VETO THE BILL
FOR THAT REASON. THAT HAS HAPPENED HISTORICALLY. WHEN IT
COMES TO THE COURT, WE ARE ASSESSING IN CASES , THE CONTROVERSIES AND
CONSTITUTIONALITY OF THE LAW THAT IS CHALLENGE THERE IN THE
CONTEXT OF A SPECIFIC CASE OR –‘S OPINION ON THE FIRST TERM
ON THE DISPUTED EAGLE ISSUE, IT MIGHT HAVE BEEN HIS SECOND TERM,
BUT PRESIDENT GEORGE WASHINGTON ASKED FOR AN OPINION. THE
SUPREME COURT RECENTLY WROTE BACK AND SAID, WE DO NOT PROVIDE
ADVISORY OPINIONS. REALLY DECIDE CASES OR CONTROVERSIES. THEREBY UNDERSCORING THE POINT YOU’RE
MAKING WITH YOUR QUESTION, WHICH IS CONSTITUTIONALITY OF LAWS AS
ASSESSED. AS ASSESSED IN THE FIRST
INSTANCE BY CONGRESS AND THE EXECUTIVE.
>>IT WOULD NOT BE INAPPROPRIATE FOR US, AS MEMBER OF THE LEGISLATIVE BRANCH, TO DECIDE TO
PROTECT SOMETHING THAT WE BELIEVE IS CONSTITUTIONALLY
PROTECTED. REGARDLESS OF WHERE WE MIGHT PLACE OUR BETS ON WHAT
THE COURTS WOULD DO WITH IT. IF WE SEE A PARTICULAR RIGHTS
THAT MIGHT BE JEOPARDIZED BY AN ACT OF CONGRESS, WE ARE
CONSIDERING, WOULD IT BE INAPPROPRIATE TO SEE HOW FAR IT
WOULD GO HERE. OUT OF AN ABUNDANCE OF CAUTION, WE WILL
DRAW THE LINE MORE CAREFULLY SO THAT WE MAKE SURE THAT WE DO NOT
STEP INTO UNCONSTITUTIONAL TERRITORY.
>>I THINK THE HAPPENS A. IT UNDER STORES — UNDERSCORES. BECAUSE IT TILTS TOWARD LIBERTY.
IT IS HARD TO PASS A LAW WITH BOTH HOUSES AND THE PRESIDENT. THERE MIGHT BE
POLICY OBJECTIONS, BUT MEMBERS OF CONGRESS MIGHT SAY, EVEN IF
THE SUPREME COURT WOULD UPHOLD THIS LAW BASED ON MY ASSESSMENT
OF THE SUPREME COURT, EITHER FIRST AMENDMENT OBJECTION, A
FOURTH AMENDMENT OBJECTION, AND EIGHTH AMENDMENT OBJECTION.
BASED IN MY VIEW OF THE CONSTITUTION, I WILL VOTE NO ON
THIS LAW. IT ALL FITS TOGETHER AND TILTS TOWARD LIBERTY. FOR
THAT VERY REASON, IT WOULD PROBABLY LEAD TO SOME BAD
RESULTS IF YOU WERE TO NOT DO THAT. IF WE WERE ALWAYS INCLINED
TO PASS THIS. IF IT IS UNCONSTITUTIONAL, THE COURTS
WILL DO SOMETHING ABOUT IT. THEIR INSTANCES IN WHICH THAT
COULD CREATE A PROBLEM. >>I THINK JUSTICE KENNEDY HAS
WRITTEN ELOQUENTLY ABOUT THIS. EACH OFFICIAL OFFICER IN
CONGRESS, EACH MEMBER OF CONGRESS. EACH SENATOR. THE
PRESIDENT MAKES AN OATH. A CONSTITUTIONAL OATH TO ABIDE
BY THE CONSTITUTION. THAT IS VERY IMPORTANT FOR EACH MEMBER
TO UNDERSTAND AND UNDERSCORE, AS I KNOW ALL OF YOU DO. THAT IS AN
IMPORTANT PART OF THE SEPARATION OF POWERS PROCESS. I DON’T THINK
THAT THE FRAMERS THOUGHT, LET’S PASS SOMETHING, EVEN THOUGH WE
OURSELVES, MEANING THE MEMBERS OF CONGRESS, THINK THAT THERE IS
A CONSTITUTIONAL PROBLEM HERE. THAT IS NOT HOW IT HAS WORKED
HISTORICALLY OR HOW THE FRAMERS INTENDED FOR CONGRESS TO WORK.
>>THERE ARE MYRIAD INSTANCES IN WHICH WE MIGHT ENACT SOMETHING
FOR ONE REASON OR ANOTHER WHICH MIGHT NOT BE CHALLENGE FOR A
WHILE. SOMEBODY LACKING STANDING. THE ABSENCE OF A
CONTROVERSY. >>THAT HAPPENS IN A NATIONAL
SECURITY CONTEXT. THERE IS NOT ONE WITH ANY. AGAINST FOREIGN
CITIZENS IT MIGHT BE DIFFICULT TO GET INTO COURT.
>>ONE OF THE REASONS I DISCUSSED IT TODAY, IS THE
INDEFINITE DETENTION OF AMERICAN CITIZENS . THE ONES THAT WERE APPREHENDED
ON U.S. SOIL. THERE WAS SOME DISCUSSION SURROUNDING THIS,
SUGGESTING THAT IT MIGHT SOMEHOW JUSTIFY THIS. YOU DO NOT NEED TO
RESPOND TO THIS, BUT I THINK IT IS APPOINTED THAT NEEDS TO BE
MENTIONED, THAT JUSTICE SCALIA MENTIONED IN HIS DISSENT IN — THAT IT WAS NOT THE FINEST
HOUR. THE CASE WAS ARGUED. WAS DECIDED THE NEXT DAY. THE
SABOTEURS WERE TAKEN OUT AND EXECUTED THE NEXT WEEK. AND THE
OPINION ITSELF WAS ISSUED MANY MONTHS LATER. I’M
NOT ASKING YOU TO OPINE ON THE VALIDITY, BUT YOU SEEM TO AGREE
THAT CONGRESS CERTAINLY HAS THE AUTHORITY TO PROTECT LIBERTY.
NOTWITHSTANDING THE POSSIBILITY THAT THE SUPREME COURT MIGHT NOT
STEP IN IN A PARTICULAR CASE. >>ABSOLUTE. A COUPLE OF POINTS
A RESPONSE TO THAT, SENATOR, IF I MIGHT. JUSTICE SCALIA
DISSENTED IN THAT CASE, JOINED BY JUSTICE STEVENS. ONE OF HIS
MORE POWERFUL DISSENTS ON INDIVIDUAL LIBERTY. ONE OF HIS MORE POWERFUL
DISSENTS, PROTECTING INDIVIDUAL LIBERTY. THE RULING WAS THAT IT
WAS IMPERMISSIBLE TO HOLD AN AMERICAN CITIZEN AND LONG-TERM
MILITARY DETENTION AND FELT THAT THAT WAS AN IMPORTANT OPINION OF
HIS WHEN I GAVE A TALK OF — ABOUT JUSTICE SCALIA, I SAID IT
WAS ONE OF HIS MOST IMPORTANT OPINIONS. ON THE OPINION ITSELF,
DEALT WITH SOME , MANY WHO WERE NOT AMERICAN
CITIZENS, BUT THERE WAS AN AMERICAN CITIZEN INVOLVED. THE
COURT, YOU’RE RIGHT, OF COURSE, YOU’VE STUDIED IT AS MUCH AS
ANYONE, BUT THE COURT DID RESOLVE THE CASE QUICKLY. THE
OPINION, I HAVE SPENT MANY AN HOUR TRYING TO DECIPHER CERTAIN
PARAGRAPHS OF THE OPINION FOR CASES THAT I’VE HAD. IT IS NOT EASY. I WILL SAY THAT
THE COURT, TO ITS CREDIT, I WANT TO GIVE A LITTLE CREDIT, DID
HAVE AN EIGHT HOUR ORAL ARGUMENT WITH THE U.S. ATTORNEY GENERAL
ARGUED PERSONALLY. IT DID NOT UNLOCK THE BOX COMPLETE FOR ME
AND WHAT WAS GOING ON IN THAT OPINION. BUT IT WAS NOT THE
COURTS FINEST HOUR. IT WAS A RUSH. SOMETIMES THE COURT HAS TO
A RUSH. BUT RUSH DECISIONS IN A JUDICIAL CONTEXT SOMETIMES
AREN’T ALWAYS THE BEST.>>WOULD YOU GO BACK TO THE
EIGHT HOUR ORAL ARGUMENT? >>WE DID HAVE ONE IN THE CASE.
WAS MAYBE 2 YEARS AGO. >>AFTER WE GOT BACK TO THE
CONFERENCE ROOM, I DON’T THINK ANYONE WAS SAYING THAT WE SHOULD
DO THAT IN EVERY CASE. >>UNDERSTOOD.
>>LET’S TALK ABOUT TO LIST — JUDICIAL PHILOSOPHY. I WOULD
LIKE TO DISCUSS FEDERALIST 78. HAMILTON DISCUSSES THE DICHOTOMY
BETWEEN WILL AND JUDGMENT. WILL BEING SOMETHING THAT IS
EXERCISED BY THE POLITICAL BRANCHES, PRIMARILY BY CONGRESS
AND BY THE LEGISLATIVE RANCH, AND JUDGMENT BEING SOMETHING
EXERCISED BY THE JUDICIAL BRANCH. WHAT IS THE DIFFERENCE
BETWEEN THOSE TWO? >>THE JUDICIAL BRANCHES
DECIDING CASES OR CONTROVERSIES, ACCORDING TO LAW. THE
LEGISLATIVE BRANCH IS MAKING THE POLICY AND EXERCISING THE WILL.
THE JUDICIAL BRANCH CAN NEVER EXERCISE THE POLICYMAKING ROLE
THAT IS RESERVED FOR CONGRESS. ADMITTEDLY, THAT IS SPEAKING AT
A LEVEL OF GENERALITY AND THERE ARE TOUGH RUSSIANS AT THE
MARGINS. TRY TO GO WITH THE LINE IS HERE. AS A GENERAL
PROPOSITION, IT IS IMPORTANT FOR EVERY JUDGE TO GO IN WITH THE
MINDSET OF I AM NOT THE POLICYMAKER, I AM THE LAW
INTERPRETER AND THE ONE WHO APPLIES THE LAW IN A PARTICULAR
CASE. THAT IS A VERY IMPORTANT PART OF THE FEDERALIST PAPERS
THAT IS WOVEN INTO THE CONSTITUTIONAL STRUCTURE. JUDGES
HAVE CERTAINLY TRIED AS A JUDGE FOR 12 YEARS OF THE
D.C. CIRCUIT , TO CONSIDER THAT AS A APPROACH EACH CASE. IT IS A
CRITICAL BEDROCK PRINCIPLE OF WHAT JUDGES DO IN OUR
CONSTITUTIONAL SYSTEM. >>WITHIN THE FRAMEWORK, WOULD
— WHEN WE ENACT A LAW, WHAT DETERMINES WHAT IT IS YOU HAVE
TO INTERPRET? IS IT WHAT WE SAY? OR IS IT WHAT WE SUBJECTIVELY INTENDED?
>>IT IS WHAT IS WRITTEN IN THE TEXT OF THE STATUTE. JUSTICE
KAGAN SAID IT WELL AT A TALK 2 YEARS AGO, MAYBE 3 YEARS AGO AT
HARVARD LAW SCHOOL. SHE SAID, WE’RE ALL TEXTUALIST NOW. IT BROUGHT ABOUT SIGNIFICANT
CHANGE THE FOCUS OF ALL FEDERAL JUDGES. I HAVE SEEN IT ACROSS
THE PHILOSOPHICAL SPECTRUM I THINK JUSTICE KAGAN SAYS THAT
WE ARE ALL TEXTUALIST NOW. SHE EXPLAINED THAT EVERY JUDGE
REALLY CARES ABOUT THE WORDS THAT ARE PASSED BY CONVERSE — CONGRESS. WHY IS THAT? I LOOK
AT THAT FROM A FORMAL AND PUNCTUAL PERSPECTIVE. IS A BINDING LAW.
IT IS WHAT IS SIGNED BY THE PRESIDENT. IT IS WHAT HAS GONE
THROUGH THE SENATE AND THE HOUSE. THAT IS THE LAW. IT ALSO
HAS A PRACTICAL OR FUNCTIONAL MATTER. I THINK HAVING SEEN THE
LEGISLATIVE PROCESS, IDAHO COMPROMISES COME TOGETHER IN THE
HOUSE AND THE SENATE. WITHIN THE SENATE, WITHIN THE HOUSE. THEIR
NEGOTIATIONS LATE AT NIGHT OVER PRECISE WORDS AND COMPROMISES,
INEVITABLY. THE CONSTITUTION IS COMPROMISE. WHEN WE DEPART FROM
THE WORDS ARE SPECIFIED IN THE TEXT OF THE STATUTE, WE ARE
POTENTIALLY UPSETTING THE COMPROMISE THAT YOU ALL
CAREFULLY NEGOTIATED IN THE LEGISLATIVE NEGOTIATIONS THEY
MIGHT HAVE HAD WITH EACH OTHER. THAT IS A DANGER THAT I TRIED TO
POINT OUT WHEN WE ARE HAVING ORAL ARGUMENT ON THE CASE OR
DECIDING CASES. WHEN WE DEVIATE WHAT CONGRESS WROTE, WE
ARE UPSETTING THIS CAREFUL COMPROMISE, EVEN IF WE THINK
MIGHT HAVE STRUCK THE COMPROMISE IN THE DIFFERENT PLACE, AS
JUDGES, THAT IS NOT OUR ROLE. IT IS IMPORTANT TO STICK TO THE
TEXT. THERE CAN BE SOME INTERPRETATION, WHICH COULD
CAUSE YOU PRESUMPTION THAT WILL CAUSE YOU TO SUPERIMPOSE A
PRESUMPTION ON THE TEXT, BUT STICKING TO WHAT YOU
PAST IS VERY IMPORTANT. >>YOU CERTAINLY CONSIDER
YOURSELF EIGHT TEXTUALIST. IF YOU FOLLOW JUSTICE KAGAN, WE ARE
ALL TEXTUALIST NOW.
>>JUDGE IS PAYING ATTENTION TO THE TEXT. AND STATUTORY CASES,
PAYING ATTENTION TO THE TEXT OF THE STATUTE. INFORMED BY THOSE
CANONS OF CONSTRUCTION, SUCH AS PRESUMPTION AGAINST X OR
TERRITORIALITY. THINGS LIKE THAT. SETTLED CANONS, WHICH IS A
SEPARATE OUR DISCUSSIONS. >>HOW DOES IT RELATE TO OR IS
DIFFERENT FROM ORIGINAL IS IN? >>ORIGINAL IS IN, AS I SEE IT,
MEANS, IN ESSENCE, CONSTITUTIONAL TEXTUALISM. THE
ORIGINAL MEANING OF THE CONSTITUTIONAL TEXT. IT IS VERY
CAREFUL WHEN YOU TALK ABOUT ORIGINAL IS SOME TO UNDERSTAND
THAT PEOPLE ARE HEARING DIFFERENT THINGS, SOMETIMES. JUSTICE KAGAN, AGAIN, AT HER
CONFIRMATION HEARING, SO THAT WE ARE ALL ORIGINALISTS NOW. BUT
THAT, SCHMIDT THE PRECISE TEXT OF THE CONSTITUTION MATTERS. BY
THE, THE ORIGINAL PUBLIC MEANING. INFORMED BY HISTORY,
TRADITION, AND PRECEDENT. THAT MATTERS AS WELL. THERE’S A
DIFFERENT CONCEPTION THAT PEOPLE USED TO HAVE OF ORIGINAL IS
SOME, WHICH MEANS ORIGINAL INTENT. IN OTHER WORDS, WHAT DID
THE PEOPLE SUBJECTIVELY INTENDED FOR THE TEXT TO ME, THE HAS
FALLEN OUT OF THE ANALYSIS, BECAUSE, FOR EXAMPLE, LET’S TAKE
THE 14th AMENDMENT, THE EQUAL PROTECTION CLAUSE, IT SAYS IN
THE TEXT, EQUAL DETECTION. AS THE SUPREME COURT SAID, WHAT IS
THAT BUT THE LAW SHOULD BE THE SAME FOR THE BLACK AND THE
WHITE. BUT THERE WERE SOME RACIST
MEMBERS OF CONGRESS INVOLVED WHO DID NOT THINK IT SHOULD APPLY IN
THAT WAY TO CERTAIN ASPECTS OF PUBLIC LIFE. BUT IF YOU ARE DOING — PAY
ATTENTION TO THE TEXT, YOU DO NOT TAKE IT NOTE OF THE
SUBJECTIVE INTENTIONS. CAN BE EVIDENCE IN CERTAIN
CASES, OF THE FIRST AMENDMENT, OF THE MARIN — MEANING OF THE
WORDS. OF THE ORIGINAL PUBLIC MEANING, THEY CAN BE EVIDENCE OF
THAT, BUT WE DO NOT FOLLOW THE SUBJECTIVE INTENTIONS. THE
ORIGINAL PUBLIC MEANING, RITUALISM, WHAT I PREFER IS
CONSTITUTIONAL TEXTUALISM WITH — TEXTUALISM. I THINK THEY ARE
REFERRING TO THE SAME THINGS. THE WORDS OF THE CONSTITUTION
MATTER. AS I HAVE SAID REPEATEDLY, YOU ALSO LOOK AT
HISTORICAL — THE HISTORY. YOU LOOK AT THE TRADITION.
FEDERALIST 37 TELLS US TO LOOK AT THE LIQUIDATION OF THE
MEANING BY HISTORICAL PRACTICE OVER TIME. THEN YOU LOOK AT
PRECEDENT WHICH IS WOVEN INTO ARTICLE 3. START WITH THE WORDS
AS JUSTICE KAGAN SAYS, WE ARE ALL ORIGINALIST NOW. HAVE TO PAY
ATTENTION TO THE WORDS OF THE CONSTITUTION.
>>IF WE STIPULATE FOR PURPOSES TODAY, AS WE’RE HAVING THE
CONVERSATION, IT REFERS TO BASICALLY TEXTUALISM. WITH AN
EYE TOWARDS THE ORIGINAL PUBLIC MEANING OF THE TEXTED ISSUE.
>>THAT IS CORRECT. AS JUSTICE KAGAN SAY, I THINK
THAT IS WHAT SHE MEANT, WE’RE ALL ORIGINALIST NOW. I THINK SHE SAID WHAT MEANT AND
MET WITH SHE SAID WHEN SHE SAID THAT.
>>WHAT, BY THE WAY, WOULD BE THE ARGUMENT AGAINST THAT? TO
BE, THAT SOUND LIKE JUDGING. WHAT WOULD ONE ARGUE AGAINST
BEING THAT TYPE OF JUDGE? ABOUT BEING A CONTRACTUAL ORIGINALIST.
>>THERE DIFFERENT PHILOSOPHIES OF WHAT A JUDGE DOES. BUT I
THINK THE JUDGES, WHAT THE ROLE OF THE JUDGES, BUT ARTICLE 6 OF
THE CONSTITUTION SAYS THIS CONSTITUTION SHALL BE THE
SUPREME LAW OF THE LAND. THE WORD LAW IS VERY IMPORTANT. IT
IS NOT A SET OF ASPIRATIONAL PRINCIPLES. IT IS LAW. CAN BE
APPLIED IN COURT . WHAT IS THE LAW? THE LAW IS
THE WORDS THAT WERE RATIFIED BY THE PEOPLE. THEREFORE, THEY CAN
BE APPLIED IN THE COURTS OF THE UNITED STATES. IT SAYS THE
SUPREME LAW, WHICH IS MEAN BY THAT? IT MEANS THAT WHEN YOU
PASS A STATUTE THAT IS INCONSISTENT WITH THE
CONSTITUTION, THE SUPREME LAW CONTROLS, NAMELY THE
CONSTITUTION CONTROLS OVER A STATUTE. THAT IS
AN FEDERALIST 78 AS WELL OF WHAT OF — WHAT IS THE SUPREME LAW OF
THE LAND. AGAIN, PRECEDENT, HISTORICAL PRACTICE, SUBSEQUENT
TO THE TAX. ESPECIALLY IN THE ESTABLISHMENT CLAUSE PRACTICES.
IT IS ROOTED IN ARTICLE 3. WITH THE WORDS ARE AN IMPORTANT PART
OF CONSTITUTIONAL INTERPRETATION. IT HAS BEEN
THROUGHOUT. >>WITH THE APPROVAL RATING THAT
RANGES BETWEEN 9 TO 11 PRESENT. — %. WHAT IF WE DECIDED THAT WE
ARE ALL BUSY AND THERE ARE PARADES TO ATTEND, THERE ARE
POLEMICAL RALLIES TO ORGANIZE. WE GET TIRED OF THE BUSY WORK OF
ACTUALLY MAKING LAWS AND WE DO NOT WANT TO MAKE OURSELVES
ACCOUNTABLE FOR THE LAWS THAT WE PASS. IS EASIER TO PASS THE
BROADER STATEMENT. SO WE SAY, WE HEREBY PASS A LAW THAT SAYS WE
IN THE UNITED STATES OF AMERICA, SHOULD HAVE GOOD LAW. WITH THE POWER TO PROMULGATE AND
INTERPRET AND ENFORCE GOOD LAWS. IN THE UNITED STATES. WHAT
CONSTITUTIONAL ISSUES TO SEE THERE?>>SENATOR, THE CONGRESS, IS OF
COURSE, SIGNING — ASSIGNED THE LEGISLATIVE POWER IN ARTICLE 1
OF THE CONSTITUTION. IT HAS A COST ADDITIONAL POWER TO ANOTHER
BODY, THEN THAT NATURALLY POSES A QUESTION OF WHETHER THE BODY
EXERCISING THE POWER ULTIMATELY HAS IMPROPERLY EXERCISED
LEGISLATIVE POWER. AND WHAT IS THE RULE THAT IS ENACTED BY THAT
BODY , AND WHETHER IT IS LAWFUL,
BECAUSE IT WAS NONACTIVE BY CONGRESS. THE FRAMERS INTENDED
THAT CONGRESS WOULD IN KNOCKED — CONNECT THE LAWS AND THAT THE
EXECUTIVE WOULD ENFORCE THE LAWS AND THAT THE JUDICIARY WOULD
RESOLVE CASES AND CONTROVERSIES ARISING UNDER THOSE LAWS.
>>IN SOME RESPECTS, IT IS NOT THAT FAR REMOVED FROM SOME OF
WHAT WE DO TODAY. WE MAY NOT PASS SOMETHING AS EXTREME AS
WHAT I DESCRIBED IN MY HYPOTHETICAL, BUT WE WILL
ESSENTIALLY SAY THAT WE WILL HAVE GOOD LAW IN AREA X, GIVE
PERMISSION FOR AREA Y TO MAKE LAWS IN THE AREA. IS A
POINT WHERE WE CROSS A THRESHOLD OF UNCONSTITUTIONAL DELEGATION?
WE’LL THE SUPREME COURT AS A NINE DELEGATION PRINCIPLE. AT
LEAST UNDER THE CURRENT PRESIDENT, IT HAS ALLOWED THE
DELEGATION. I DON’T WANT TO GET TOO SPECIFIC HERE, BUT IT HAS
ALLOWED SOME DELEGATION AND SOME JUSTICES OR JUDGES WOULD SAY
WHEN THE EXECUTIVE AND ASK RULES PURSUANT TO THOSE DELEGATIONS,
THAT IS THE EXERCISE OF EXECUTIVE POWER. I THINK THERE
HAS BEEN SOME PUSHBACK ON THAT. THE SUPREME COURT HAS A DOCTRINE
ON THE NON-DELEGATION PRINCIPLE. THE LINE IS DEBATED ON WHETHER
THAT SHOULD BE DRAWN, BUT THERE IS PRECEDENT THAT IT DOES
SUGGEST THAT AT SOME POINT, CONGRESS CAN GO TOO FAR AND HOW
MUCH POWER IT DELEGATES TO AN EXECUTIVE OR INDEPENDENT AGENCY.>>WE DO THAT, AT SOME POINT, WE
ARE SHIRKING OUR OWN RESPONSIBILITY, BECAUSE WERE
MAKING LAWMAKERS RATHER THAN LAWS AND WE ARE ALSO
CONSOLIDATING INTO ONE BODY, THE POWER TO MAKE AND ENFORCE LAWS,
WHICH IS ONLY SOMETHING THAT CAN LEAD TO JOURNEY, IT IS A VERY
DEFINITION OF TYRANNY. WANT TO GET TO THE CAMPAIGN-FINANCE
DISCUSSION THAT YOU ARE HAVING A FEW MINUTES AGO WITH SENATOR
FIGHT — SENATOR WHITE HOUSE. WHEN IT COMES TO CITIZENS
UNITED, DID THE SUPREME COURT UPHOLD THE DISCLOSURE
REQUIREMENTS IN CITIZENS UNITED? WE’LL IT DID.
>>IN FACT, YOU HAVE WRITTEN ON THIS, THAT THERE IS A
DISTINCTION FOR FIRST AMENDMENT PURPOSES BETWEEN LAWS MANDATING
DISCLOSURE AND LAWS BANNING THE DOING OR SAYING OF SOMETHING. IS
THAT RIGHT? >>THAT IS WHAT THE SUPREME
COURT HAS SAID. IN CERTAIN CONTEXT. THAT IS THE LAW AS SET
FORTH BY THE SUPREME COURT. CITIZENS UNITED IS A GOOD
EXAMPLE. >>IN A CASE OF EMILY’S LIST
VERSUS FEC. TRIGGERS RIGHTS THAT RECEIVE LESS FIRST AMENDMENT
PROTECTION. AND OTHER TYPES OF SPEECH PROHIBITIONS.
>>I THINK THAT FOLLOWED FROM SUPREME COURT LAW AND IS
CONSISTENT, I BELIEVE, WITH SUPREME COURT LAW.>>OF A FAVORITE AMONG THE
FEDERALIST PAPERS? >>I’M NOT ASKING YOU TO CHOOSE
BETWEEN THEM.
>>SO, I LIKE A LOT OF FEDERALIST
PAPERS. FEDERALIST 78, THE INDEPENDENT
JUDICIARY. THE ROLE OF THE JUDICIARY. IT SAYS OF THE
PRESIDENCY IS NOT A MONARCHY. IT IS VERY
IMPORTANT WHEN HAMILTON THIS MEANS ALL THE WAYS IN WHICH THE
PRESIDENCY IS NOT A MONARCHY IN OUR CONSTITUTIONAL SYSTEM, THAT
IS VERY IMPORTANT. FEDERALIST 10, WHICH TALKS ABOUT FACTIONS
IN AMERICA. AND EXPLAINS THAT HAVING THE SEPARATION OF POWERS
AND A FEDERALISM SYSTEM, DIVIDING POWER IN SO MANY
DIFFERENT WAYS WOULD HELP PREVENT A FACTION FROM GAINING
CONTROL OF THE ENTIRE POWER FOR THE PEOPLE OF THE UNITED STATES.
THAT MAKES IT FRUSTRATING AT TIMES, BECAUSE IT IS HARD TO
PASS NEW LEGISLATION, BUT THE DIVISION OF POWER HELPS PROTECT
INDIVIDUAL LIBERTY. I THINK IT COMES A BIT FROM FEDERALIST 10.
FEDERALIST 37 AND 39, TALKS ABOUT, HOW WE ARE JUST TALKING
ABOUT LAWS THAT ARE THE CONSTITUTION OVERTIME WHICH CAN
BE LIQUIDATED BY HISTORICAL PRACTICE. WHAT DOES THAT MEAN?
IT MEANS AS THE BRANCHES FILL OUT THE MEANING OF THE CONSTITUTION
OVERTIME WITH PRACTICES, THEY CAN BE RELEVANT AND HOW THE
COURT SUBSEQUENTLY INTERPRETS CERTAIN DECISIONS. WE TALK ALSO ABOUT THE NATIONAL
AND FEDERAL GOVERNMENT. THE COMBINATION THAT WE HAVE THAT IS
THE GENIUS. IS A GENUS OF HAVING A NATIONAL
GOVERNMENT, PLUS STATE GOVERNMENTS. THE HOUSE IS
PROPORTIONAL REPRESENTATION. THE SENATE STATE REPRESENTATION.
THAT COMPROMISE, WHICH MADISON WAS OPPOSED TO,. FEDERALIST 87. THE COMMISSIONABLE POWER.
AND ONE BODY. IT’S THE VERY DEFINITION OF TYRANNY. I START
MY SEPARATION OF POWERS CLASS EVERY YEAR WITH THAT EXACT QUOTE
THE RED YESTERDAY. THAT IS VERY IMPORTANT. 51, IF MEN WERE
ANGELS, WE WOULD NOT NEED GOVERNMENT. SO I HAVE EIGHT KIDS
. >>THAT’S BRILLIANT, I THINK
THAT IS A GREAT GREATEST HITS LIST. IF THIS IS ON SPOTIFY, I
WAS IN THE PUT TOGETHER A LIST OF THOSE. LET’S CLOSE IN THE
MINUTE AND A HALF WE HAVE LEFT. I HAVE MORE TIME BECAUSE OF THE
TWO INTERRUPTIONS OR. TELL ME HOW YOU INFORMED BY FEDERALIST
51 AND HOW THAT RELATES TO YOUR ROLE AS A JURIST? YOUR ROLE AS A
JUROR IS NOW IN THE D.C. CIRCUIT AND THE ROLE THEY WOULD PLAY IF
YOU’RE CONFIRMED TO THE UNITED STATES SUPREME COURT. THE
UNDERSTANDING THAT GOVERNMENT IS AN EXERCISE IN UNDERSTANDING
HUMAN NATURE. IF WE WERE ANGELS, WE WOULD NOT
NEED GOVERNMENT. AND IF WE HAD ACCESS TO ANGELS TO GOVERN OVER
US, WE WOULD NOT NEED ALL OF THESE RULES. THESE CUMBERSOME
RULES AND MAKE EVERYONE SO INEFFICIENT AND FRUSTRATED. WHY
IS THAT IMPORTANT TO HAVE A SET AFFECT YOU AS A DREDGE — JUDGE AS YOU ARE TRYING TO
INTERPRET? >>THAT IS AN INTERESTING
QUESTION. I THINK WE RECOGNIZE THAT WE ARE ALL IMPERFECT. ALL
OF US AS HUMANS ARE IMPERFECT. THAT INCLUDES JUDGES. ALL OF US
ARE PERFECT SO WE RECOGNIZE THAT AND HOW WE GO
ABOUT SETTING UP OUR GOVERNMENT. IF THERE WERE
SOME PERFECT GROUP OF PEOPLE, WE PUT ALL THE POWER IN THE ONE
BODY. BECAUSE WE ARE IMPERFECT. IT IS DIVIDING THE POWER,
SEPARATED THE POWER, AND AGAIN, TO MY MIND, THAT REINFORCES WHY
THE FRAMERS, THE GENIUS, DESPITE THE FLAWS IN THE CONSTITUTION,
THE FLOW OF THE GENIUS IS SEPARATING THE POWERS, TILTING
TOWARD LIBERTY AND ALL THIS RESPECTS, THAT HAVING THE
FEDERALISM SYSTEM WHERE WE HAVE STATE GOVERNMENTS THAT CAN
FURTHER PROTECT LIBERTY. I THINK ALL OF THAT IS BECAUSE WE ARE
IMPERFECT AND BECAUSE WE RECOGNIZE THE IMPERFECTIONS. IT
IS WHY WE HAVE THINGS LIKE A JURY SYSTEM. EVEN WITHIN THE
JUDICIARY, WE DO NOT TRUST A JUDGE TO DO TRIALS ON HIS OR HER
OWN. WE HAVE A JURY SYSTEM, TO RECOGNIZE. WE USUALLY HAVE 12 AND THAT IS DESIGNED TO
RECOGNIZE THAT WE ARE IMPERFECT. IS SOMETIMES THAT IS WHY WE HAVE
GROUP DECISION-MAKING. THAT IS WHY WE HAVE 535 LEGISLATORS.
THAT’S WHAT WE HAVE NINE JUSTICES. WE DON’T NORMALLY HAVE
ONE PERSON. SO THAT ME STEM FROM THE SAME PHILOSOPHICAL UNDERSTANDING THAT
WE ARE IMPERFECT BEINGS AND THAT WE DIVIDE POWER AND THAT WE MAKE
SURE THAT NO ONE PERSON IN A JURY SITUATION OR OTHER
SITUATION, WHERE THE LIBERTY CAN BE
AFFECTED, IS EXERCISING TOTAL CONTROL.
>>THANK YOU VERY MUCH. >>>MY TIME HAS EXPIRED. I’M NOT
THE CHAIRMAN OF THIS COMMITTEE, EVEN THOUGH I’M PLAYING HIM ON
TV. UNDERSTAND UNDER THE PREVIOUS ORDER, WE’RE SUPPOSED
TO TAKE A 10 MINUTE BREAK. WE WILL STAND IN RECESS FOR 10
MINUTES. DAY 2 OF THE CONFIRMATION
HEARING OF BRETT KAVANAUGH. >>THE EXECUTIVE BRANCH IS SUBJECT
TO THE LAW SUBJECT TO THE COURT SYSTEM AND THE FIRST
QUALITY OF A GOOD JUDGE IN OUR SYSTEM IS INDEPENDENT, IT IS
CONSTITUTIONALLY DICTATED TO PAY HEED TO THE RULES OF PRECEDENT.
I FULLY UNDERSTAND THE GANG VIOLENCE, GUN VIOLENCE, PLAGUES
DIFFERENT CITIES, AS A JUDGE MY JOB AS I SAW IT WAS TO FOLLOW
THE SECOND AMENDMENT OPINION OF THE SUPREME COURT WHETHER I
AGREED WITH IT OR DISAGREED WITH IT.
>>DO YOU AGREE WITH JUSTICE O’CONNOR THAT HE WOMAN’S RIGHT
TO CONTROL HER REPRODUCTIVE LIFE IMPACTS HER ABILITY TO
PARTICIPATE EQUALLY IN THE ECONOMIC AND SOCIAL LIFE?>>I UNDERSTAND THE PRESIDENT
SET FORWARD AND ROE V. WADE. PLANNED PARENTHOOD VERSUS CASEY
REAFFIRMED ROW AND DID SO BY CONSIDERING THE DECISIVE FACTOR
SO CASEY NOW BECOMES A PRECEDENT ON
PRESIDENT. I HAVE REPEATEDLY CALLED NIXON ONE OF THE FOUR
GREATEST MOMENTS IN SUPREME COURT HISTORY. IT WAS BECAUSE OF
THE POLITICAL PRESSURES OF THE TIME , THE COURTS STOOD UP FOR
JUDICIAL INDEPENDENCE IN A MOMENT OF NATIONAL CRISIS.
>>IN A SITTING PRESIDENT BE REQUIRED TO RESPOND TO A
SUBPOENA? >>THAT IS A HYPOTHETICAL
QUESTION AND I CAN’T GIVE YOU AN ANSWER ON THAT.
>>THE FACT YOU SAID THAT IF THE PRESIDENT WERE THE SOLE SUBJECT
OF A CRIMINAL INVESTIGATION I WOULD SAY NO ONE SHOULD BE
INVESTIGATING THAT AT ALL. WHAT DID YOU MEAN BY THAT?
>>THERE WERE IDEAS FOR CONGRESS TO CONSIDER, THEY WERE NOT MY
CONSTITUTIONAL VIEWS.>>WHAT ASSURANCES CAN YOU
PROVIDE YOU WILL NOT ALLOW THE RESIDENT OFFICE PERSONAL VIEWS
ON A CASE OR PERSONAL INTEREST TO IMPACT YOUR DECISION ASK>>SENATOR, I AM AN INDEPENDENT
JUDGE. FOR 12 YEARS I HAVE BEEN DECIDING CASES BASED ON THE LAW
AND THE PRESIDENT IN EACH CASE AND NO WOMAN SHOULD BE SUBJECTED
TO SEXUAL HARASSMENT IN THE WORK LACE EVER INCLUDING IN THE
JUDICIARY INCLUDING THAT THIS IS PART OF A MUCH LARGER NATIONAL
PROBLEM. >>YOU SAID EVERYONE AGREES
BECAUSE UNFETTERED AND UNCHECKED EVERY VIOLATOR OF EVERY FEDERAL
LAW AND THE PRESIDENT ISSUED A PARDON IN EXCHANGE FOR A BRIBE,
YES OR NO?>>SENATOR, I THINK THAT
QUESTION HAS BEEN LITIGATED.>>PRESIDENT TRUMP CLAIMS HE HAS
AN ABSOLUTE RIGHT TO PARDON HIMSELF?
>>I’M NOT GOING TO ANSWER HYPOTHETICAL QUESTIONS.
>>IF THERE WAS AN ACTION BY A STATE OR LOCAL GOVERNMENT
CHALLENGING ROW AND IT CAME BEFORE THE SUPREME COURT, WOULD
YOU LISTEN TO BOTH SIDES?>>I LISTEN TO BOTH SIDES IN
EVERY CASE. >>IF YOU SAID I DON’T WANT TO
HAVE A CLOUD OVER THIS I’M PREPARED TO SUGGEST TO THE
COMMITTEE AND ASKED THE COMMITTEE HUMBLY PLEASE WITHHOLD
FURTHER HEARINGS UNTIL YOU DISCLOSE EVERYTHING. WHY WON’T
YOU DO THAT?>>I DO NOT BELIEVE THAT IS
CONSISTENT WITH WHAT PRIOR NOMINEES HAVE DONE. WE DON’T
CARE WHAT THE NOMINEE. WE HAVE TO FOLLOW THE PRESIDENTIAL
RECORDS ACT.>>THAT INVOLVES THE NATIONAL
ARCHIVES. >>THEY HAVE STATED PUBLICLY
THAT THE WAY WE ARE HANDLING THE RECORDS FOR THIS NOMINATION ARE
UNPRECEDENTED AND THEY HAVE HAD NOTHING TO DO WITH IT.
>>HIGHLIGHTS FROM DAY 2 FROM HIS CONFIRMATION HEARING. THANK YOU FOR BEING HERE. YOU
HAVE BEEN TAKING IN TWO HIS HISTORY AND WHAT HE HAS WRITTEN
AND DECIDED ON THE BENCH. ARE WE LEARNING MORE TODAY AS DEMOCRATS
FINALLY GET A CHANCE TO ASK HIM QUESTIONS? ARE YOU HEARING
ANYTHING DIFFERENT FROM WHAT HE HAS WRITTEN AND PUT ON THE
RECORD? I HAVE A SENSE OF DÉJÀ VU, THIS IS THE THIRD
CONFIRMATION HEARING HE HAS GONE THROUGH. THE FIRST ONE 2004
DEMOCRATS FOR 3 YEARS STALLED HIS NOMINATION AND ANOTHER HE
WAS CONFIRMED. A LOT OF WHAT I HEAR TODAY IS REMINISCENT ON
WHAT CAME UP AT THOSE TIMES. THERE IS A LOT TODAY ABOUT A
STAFFER ON THE SENATE COMMITTEE WHO HACKED SOME DEMOCRATIC
EMAILS AND THE SAME SENATORS WHO WERE THERE IN 2004 ASKING HIM
ABOUT THIS ARE ON THE COMMITTEE TODAY ASKING HIM ABOUT THIS.
THEY MAINTAINED THAT THERE IS INFORMATION THEY STILL DON’T
KNOW AND ONE OF THE STORIES I DID A COUPLE OF WEEKS AGO, I
LISTENED TO THAT HEARING AND I HEAR A LOT OF ECHOES OF THAT.
>>YOU MENTIONED DEMOCRATS WERE ABLE TO STALL HIS NAME FROM
GOING FORWARD. THEY GOT A COUPLE OF YEARS OF A DELAY. WE DON’T
SEE ANY PROSPECT OF THAT THIS TIME.
>>BACK THEN DEMOCRATS DID NOT, THEY HAD A RULE THAT SAID YOU NEED 60 VOTES TO BREAK A
FILIBUSTER AND THEY DELETED THAT. TODAY THAT RULE IS NO
LONGER THERE. REPUBLICANS ONLY NEED 51 VOTES WHICH IS EXACTLY
WHAT THEY HAVE AND THEY MAY GET SOME MORE. THEY HAVE 51 SEATS AT
THE SENATE. IT STARTS WITH THE PRESUMPTION THAT HE WILL BE
CONFIRMED. WE HAVE HEARD IN OAK REPUBLICANS SAY THEY WOULD VOTE
AGAINST HIM.>>ONE THING THAT HAS COME TO
LIGHT IN THIS PROCESS IS HIS RECORD ON EXECUTIVE POWER. THIS
IS ALREADY A FOCUS AND OF GREAT INTEREST TO DEMOCRATS AND OTHERS
BECAUSE OF HIS ROLE IN THE KEN STARR INVESTIGATION AND SPENDING
TIME IN THE WHITE HOUSE AND NOW IT IS
A SPECIAL INTEREST BECAUSE OF PRESIDENT TRUMP OFFICE OWN LEGAL
PERIL. ARE WE LEARNING ANYTHING ABOUT HOW THIS POTENTIAL SUPREME
COURT JUSTICE WOULD RULE IF THE PRESIDENT WAS SUBPOENAED IF A
QUESTION CAME BEFORE THE COURT ABOUT WHERE THE PRESIDENTIAL
LIMITS ARE IN TERMS OF LEGAL PROTECTION?
>>THIS HAS BEEN ONE OF THE MOST INTERESTING ISSUES SINCE HE WAS
FIRST MENTIONED. KAVANAUGH WAS A COPY TO KEN
STARR, BILL CLINTON HELP THAT LEAVE THAT INVESTIGATION INTO A
FORMER ASSISTANT VINCE FOSTER. HE WORKED ON THE MONICA LINSKY
INVESTIGATION AND DURING THAT TIME KAVANAUGH WAS VERY AGGRESSIVE
WANTING TO GO AFTER CLINTON. HE PROPOSED 10 QUESTIONS THAT
SHOULD BE ASKED ABOUT HIS RELATIONSHIP WITH MONICA
LEWINSKY AND THEY WERE VERY SEXUALLY GRAPHIC QUESTIONS ABOUT
THINGS LIKE THINGS THEY DID. THEN, HE WORKED FOR PRESIDENT
BUSH AND DURING THAT TIME HE WAS ASSOCIATE COUNSEL TO THE STAFF
SECRETARY AND HE SAW HOW BUSY A PRESIDENT IS AND SAID IT IS
PROBABLY BETTER IF THE SITTING PRESIDENT IS NOT INVESTIGATED
THE WAY HE HELPED INVESTIGATE PRESIDENT CLINTON. IT’S GREAT TO GO AFTER PRESIDENT
CLINTON AND NOT A PRESIDENT LATER. NOW IF HE IS CONFIRMED HE
COULD SIT ON THE SUPREME COURT THAT COULD INVOLVE WHETHER
PRESIDENT TRUMP WHO CAMPAIGN IS UNDER INVESTIGATION FOR POSSIBLY
COLLUDING WITH RUSSIA, QUESTIONS OF WHETHER HE SHOULD BE
SUBPOENAED, HAVE TO TURN OVER CERTAIN DOCUMENTS, SIT IS AN
INTERVIEW. IT COULD ALL COME BACK AROUND. THERE WERE QUESTIONS TODAY ON
THE EXECUTIVE PRIVILEGE AND WHAT MIGHT HAPPEN IF HE HAS TO DEAL
WITH QUESTIONS ABOUT TRUMP.>>WHEN YOU WERE TALKING ABOUT
AN ARTICLE IN THE MINNESOTA LAW REVIEW, I WAS SPIT BAWLING,
GIVING SUGGESTIONS TO YOU ABOUT HOW YOU COULD CHANGE THE LAW AND HOW YOU COULD DO EVERYTHING LIKE
CREATING A TIGHTER TIMELINE ON GETTING JUDGES TO THE BENCH OR
NOT AND TAKE CARE OF SOME OF THE CONCERNS THAT A PRESIDENT
SHOULDN’T HAVE TO WORRY ABOUT IF THE PRESIDENT IS FACING LEGAL
PERIL AND NEEDS TO FOCUS ON THE JOB OF THE COUNTRY. DID YOU GET
THE SENSE FROM HIM HE COULD SEPARATE OUT WHAT HE WOULD
PROPOSE IF HE WERE A LAWMAKER VERSUS WHAT HE WOULD DECIDE AS A
SUPREME COURT JUSTICE ?
>>HE WAS SUGGESTING THEY ADOPT THIS POINTER VIEW. HE DIDN’T
JUST THROW IT OUT THERE AND SAY HERE IS AN IDEA. HE WOULD SAY
THESE ARE VERY DISTRACTING AND PICK PRESIDENTS ARE VERY — AND
PRESIDENTS ARE VERY BUSY. UNDER OATH HE TALKED ABOUT NOT
HAVING A RELATIONSHIP WITH MONICA LEWINSKY AND IT CAME BACK
LATER WHICH WAS USED AGAINST HIM. CIVIL SUITS ARE VERY
IMPORTANT IN THAT AND PRESIDENTS SHOULD NOT HAVE TO DEAL WITH
THEM IN OFFICE AND CRIMINAL INVESTIGATIONS. THAT COULD
POTENTIALLY TAKE THE INVESTIGATION OUT OF THE
PICTURE. TODAY HE WAS ASKED WHAT CAN A PRESIDENT BE SUBPOENAED
BECAUSE WE DON’T WANT TO TALK ABOUT HYPOTHETICAL.
>>THAT WASN’T A SURPRISE. WE KNEW THAT WOULD BE HARD TO PIN
HIM DOWN. THAT SEEMS THE LEAST HYPOTHETICAL BECAUSE I WOULD
ASSUME THAT DEMOCRATS COULD ARGUE BASED ON LEGAL PRECEDENT
THAT HAS ALREADY HAPPENED IN A SITTING PRESIDENT BE SUBPOENAED ? BY VICTORIES AND IT CAME UP
THERE WAS AN ARTICLE IN WHICH HE HAD BEEN QUOTED AT A SEMINAR
TALKING ABOUT THE US VERSUS NIXON. THIS WAS WHERE THEY
UNANIMOUSLY SAID NIXON HAD TO TURN OVER THE WHITE HOUSE TAPES
WHICH LED TO HIS RESIGNATION. A LANDMARK CASE AND KAVANAUGH SAID
IT MIGHT BE HERESY TO SAY SO I AM PARAPHRASING. PERHAPS WRONG
AND WE DON’T KNOW IF THAT IS A THEORETICAL DISCUSSION. HE WENT
THROUGH THIS WHOLE REASON WHY IT COULD HAVE BEEN WRONG. MEMBERS
OF THE COMMITTEE TODAY WANT TO KNOW WHAT YOU MEAN BY THAT AND
HE SAID THAT WAS TAKEN OUT OF CONTEXT AND HE SAID THE NIXON
CASE WAS ONE OF THE FOREMOST IMPORTANT DECIDED BY THE SUPREME
COURT SO HE SEEMS TO AGREE WITH THE CASE. IT WAS REPORTED THAT
HE SAID IT MIGHT BE HEARSAY AND THAT PRIOR STATEMENT HE DIDN’T
SAY IT WAS WRONGLY DECIDED AND IF YOU LISTEN TO LEGAL PANELS IT
IS NOT SHOCKING THAT SOMEONE MIGHT FORWARD A HYPOTHETICAL.
MAYBE THAT IS WHAT HE WAS DOING. HE IS ARGUING THAT IS NOT HOW HE
ACTUALLY FELT ABOUT THE CASE. >>HE TALK ABOUT ABOUT FOUR
DIFFERENT CASES, DOES THE PHRASE THIS IS THE MOST IMPORTANT
MEETING HE AGREED WITH THE OR IS IT JUST THAT IT IS IMPORTANT AND SHAPED
HISTORY? BUT THAT IS THE QUESTION I HAVE. HE DID SEEM TO
SAY HE AGREED WITH THAT CASE. HE IS SAYING WHEN HE WAS QUOTED AND THEN HE GOES ON TO SAY THIS
IS ONE OF THE GREAT CASES EVER AND HE WAS ASKED TO AGREE WITH
THAT AND HE SEEMED TO SAY THAT WAS THE CASE. I WAS HOPING
SOMEONE ELSE WOULD GET UP AND SAY YES OR NO, DO YOU AGREE WITH
NIXON OR NOT SO THERE WOULD BE NO QUESTION WHATSOEVER.
>>WE ARE NOT EVEN HALFWAY THROUGH THEM ASKING RUSSIANS AND
GOES IN TWO ROUNDS. LOOKS LIKE WE ARE GOING BACK TO THE
HEARING.>>THAT IS WHAT SHE TOLD ME. I
THOUGHT THIS WAS VERY ROMANTIC THAT YOU ARE GATHERED HERE. I
WANT TO START, JUDGE KAVANAUGH, GOING BACK TO WHERE WE STARTED
YESTERDAY AND THAT IS ABOUT THE DOCUMENTS AND THE PRODUCTION OF
DOCUMENTS FROM THE TIME THAT YOU WERE IN THE WHITE HOUSE. TO YOU
PERSONALLY HAVE ANY OBJECTIONS TO THE RELEASE OF THE DOCUMENTS
FROM YOUR TIME AS STAFF SECRETARY LACKS
>>SENATOR, I’M NOT GOING TO TAKE A POSITION. THAT IS IN MY
VIEW A DECISION FOR THE COMMITTEE IN CONSULTATION OR
DISCUSSION WITH THE EXECUTIVE BRANCH –
>>YOU WILL NOT SAY WHETHER OR NOT YOU HAVE A PROBLEM WITH IT?
>>IT IS NOT MY ROLE TO SAY ONE MAY OR ANOTHER AS I ANALYZE THE
CURRENT SITUATION. THAT IS A QUESTION FOR THE COMMITTEE AND
THE EXECUTIVE BRANCH AND THE PRESIDENTIAL LIBRARY .
>>SINCE RIGHT NOW WE ARE NOT ABLE TO REVIEW THOSE DOCUMENTS
IN ADDITION TO THE HUNDRED 2000 THAT THE WHITE HOUSE HAS DOOMED
THERE’S THAT WE ARE NOT ABLE TO SEE AND ASSERTED A PRIVILEGE
THAT HAS NEVER HAPPENED BEFORE IN A SUPREME COURT NOMINATION
HEARING, IS THERE ANYTHING IN THOSE DOCUMENTS OR THE STAFF
SECRETARY DOCUMENTS THAT YOU WOULD WE WOULD LIKE TO KNOW THAT
ARE RELEVANT COLLECTS>>BEFORE YOU ANSWER WITHOUT
TAKING TIME OFF OF HER TIME, IT IS INCORRECT THAT COMMITTEE
CONFIDENTIAL, NO SENATORS CAN SEE THOSE RECORDS , ALL 100 SENATORS CAN SEE THOSE
IN FACT WE SET UP SEPARATE TERMINALS SO PEOPLE CAN GO
THERE. WE HAVEN’T HAD VERY MANY PEOPLE TAKE US UP ON THE OFFER.
>>MR. CHAIRMAN, NOT TO GO INTO MY
TIME, I WASN’T TALKING ABOUT THOSE DOCUMENTS I WAS TALKING
ABOUT THE ONES THAT WE ARE NOT ALLOWED TO SEE AT ALL FROM THE
STAFF SECRETARY TIME AS WELL IS 102,000 THAT THE WHITE HOUSE HAS
EXERTED PRIVILEGE ON THAT WE ARE NOT ABLE TO SEE. I’M NOT TALKING
ABOUT THE HUNDRED 89,000.>>I STAND CORRECTED.
>>AGAIN, I ASK , IF THERE IS ANYTHING IN THOSE
DOCUMENTS YOU THINK WOULD BE RELEVANT TO OUR DISCUSSION.
>>SENATOR, THOSE DOCUMENTS ARE PRESIDENT BUSH’S DOCUMENTS
AND FOR THE COMMITTEE AND THE BUSH LIBRARY AND THE EXEC BRANCH
TO NEGOTIATE AND AS DISCUSSED I HAVE 12 YEARS OF JUDICIAL RECORD
AND THIS IS NOT A NEW ISSUE. THIS CAME UP AND EXPERIENCE WITH
THE DOCUMENTS .
>>THOSE ARE SOLICITOR GENERAL. I’M TALKING ABOUT THE ONES IN
THE WHITE HOUSE.>>I DON’T SEE A DISTINCTION.
THEY ARE BOTH EXECUTIVE BRANCH DOCUMENTS SO THERE IS ONE
EXECUTIVE BRANCH. >>ONE INVOLVES THE ONGOING
SOLICITOR GENERAL. JUST ONE MORE QUESTION. YOU SAID THAT RUSH
DECISIONS ARE NOT ALWAYS THE BEST IN ANSWER TO DISCUSSION
WITH SENATOR LEE AND YOU THINK A GOOD JUDGE WOULD GRANT A
CONTINUANCE TO SOMEONE WHO JUST RECEIVED 42,000 DOCUMENTS ON THE
DAY BEFORE THE START OF THE TRIAL?
>>THAT IS A DECISION FOR THE
COMMITTEE AND I’M NOT FAMILIAR WITH THE CIRCUMSTANCES. ON THE SOLICITOR GENERAL
DOCUMENTS I WANT TO SAY ONE THING, WITH CHIEF JUSTICE
ROBERTS IT WAS NOT ACTIVE THAT WAS FOUR YEARS OF HIS FROM TIME
HE WAS SOLICITOR GENERAL FROM 1989 TO 1993. HE WAS NOMINATED
IN 2005. IT IS MY UNDERSTANDING SO MY ONLY POINT IS IT IS NOT A
NEW ISSUE AND IT IS NOT FOR THE NOMINEE TO DECIDE .
>>LET’S MOVE ON TO THE EXECUTIVE POWER ISSUE AND
YESTERDAY I MENTIONED YOUR SUBMISSION TO THE UNIVERSITY OF
MINNESOTA LAW REVIEW. WE THANK YOU FOR MAKING THE LOG REVIEW SO
FAMOUS OVER THE LAST MONTH OR SO. YOU SAID THAT A PRESIDENT
SHOULD NOT BE SUBJECT TO INVESTIGATIONS WHILE IN OFFICE
AND IN OUR MEETING THAT CONGRESS WOULD LIKELY AT WEEKLY IF THE
PRESIDENT DOES SOMETHING DASTARDLY. A WORD YOU ALSO USED
IN THE ARTICLE AND I AM STRUGGLING WITH THE PRACTICAL
IMPLICATIONS OF THAT WHAT ABOUT A PRESIDENT WHO
COMMITS MURDER OR JEOPARDIZES NATIONAL SECURITY OR HE
OBSTRUCTS AN INVESTIGATION OR A WHITE-COLLAR CRIME , HOW DO YOU DIFFERENTIATE
BETWEEN THESE CRIMES WHEN YOU CHARACTERIZE THEM AS DASTARDLY
QUAKES>>THERE ARE SEVERAL — QUIPS —
QUIPS>>IN 2009 WHEN PRESIDENT OBAMA
WAS BECOMING PRESIDENT WAS THOUGHTS ON A VARIETY OF TOPICS –
>>I JUST WANT TO PICK UP THE TEMPO A LITTLE BECAUSE I HAVE SO
MANY. COULD WE GET TO THAT POINT ABOUT THE DASTARDLY IF THERE IS
A WAY TO DIFFERENTIATE? BUT THAT WAS A PROPOSAL TO BE
CONSIDERED IT WAS NOT A CONSTITUTIONAL POSITION. I DID
NOT TAKE ANY CONSTITUTIONAL POSITION ON THE ISSUES YOU ARE
RAISING. I WOULD HAVE AN OPEN MIND AND DECIDE THAT.
>>THERE IS NO CLEAR TEXT THAT SPEAKS TO THE QUESTION SO
INSTEAD THESE ARE YOUR OWN RECOMMENDATIONS BASED ON YOUR
OWN VIEWS AND EXPERIENCE. WITHOUT THE A FEAR
CHARACTERISTIC QUIPS — QUIPS>>AND ABOUT SPECIAL COUNSEL
INVESTIGATIONS OR CIVIL LAWSUITS AND THAT IS A QUESTION FOR
CONGRESS TO CONSIDER WHETHER THEY WANT TO SUPPLEMENT IT BY
CLINTON VERSUS JONES, THE SECOND QUESTION GETTING RIGHT EAR POINT
IS WHAT IS AN IMPEACHABLE OFFENSE AND THAT IS THE DECISION
FOR VIEW, NOT FOR ME BECAUSE- >>I AM FIGURING OUT HOW WE KNOW
IF SOMETHING IS DASTARDLY IF WE CAN’T INVESTIGATE IT.
>>I WILL REPEAT THAT IS A QUESTION, YOU ARE ASKING FOR A HIGH CRIME-
>>I’M ASKING ABOUT YOUR POSITION THAT YOU STATED IN THE ARTICLE
THAT THE PRESIDENT SHOULD NOT BE SUBJECT TO INVESTIGATION WHILE
IN OFFICE. YOU JUST SAY THAT THEY SHOULD BE
SUBJECT TO INVESTIGATION AS PART OF THE IMPEACHMENT AND THAT
THERE IS NO OTHER INVESTIGATION THAT CAN OCCUR?
>>I PERFORM CONSTITUTIONAL POSITION ON CRIMINAL
INVESTIGATION AND PROSECUTION. I DID NOT TAKE A POSITION ON THE
CONSTITUTIONALITY. ON THE IDEA THAT I TALKED ABOUT
WAS SOMETHING FOR CONGRESS TO LOOK AT IF THEY WANTED. .2 IS
THE IDEA THAT WHAT IS AN IMPEACHABLE OFFENSE AND THAT IS
A QUESTION FOR THE HOUSE AND THE SENATE.
>>AND THIS IS ABOUT ACTUAL OPINIONS AND ALONG THE SAME
LINES AND I KNOW SENATOR WILL TALK TO YOU ABOUT THAT AND WE
HAVE CONCERN ABOUT THAT. IN THE HOLDER CASE THIS IS YOU
UNDER THE CONSTITUTION THE PRESIDENT MAY DECLINE TO ENFORCE
A STATUTE THAT REGULATES PRIVATE INDIVIDUALS WHEN THE PRESIDENT
DEEMS THE STATUTE UNCONSTITUTIONAL EVEN IF A COURT
HAS HELD OR WOULD HOLD THE STATUTE CONSTITUTIONAL AND YOU TOLD ME WHEN WE HAVE THE
TALK IN MY OFFICE THAT YOU ATTEMPTED TO CLARIFY YOUR VIEWS
TWO YEARS LATER AND IT SEEMS INCONSISTENT TO ME SO IS IT THE CASE YOUR VIEW AS
EXPRESSED IN ACTUAL OPINIONS NOT LAW REVIEW ARTICLES THAT A
PRESIDENT CAN JUST IGNORE A LAW AND TELL A COURT UPHOLDS IT LIKE
YOU SAID OR THAT A PRESIDENT CAN CONTINUE TO IGNORE A LAW EVEN
AFTER A COURT UPHOLDS IT LIKE YOU SAID IN SEVEN SKY?
>>IGNORE, THE CONCEPT AS WE DISCUSSED WHEN WE MET AND WE HAD
A GOOD BACK AND FORTH ON THAT WAS THE PROSECUTORIAL DISCRETION
AND THAT IS THE CONCEPT I REFERRED TO IN THE AIKEN COUNTY
OPINION. PROSECUTORIAL DISCRETION IS, OF COURSE, FIRMLY
ROOTED IN UNITED STATES VERSUS RICHARD NIXON CASE AND THE EXECUTIVE BRANCH HAS THE
ABSOLUTE EXCLUSIVE AUTHORITY AND ABSOLUTE DISCRETION WHETHER TO
PROSECUTE A CASE. THAT IS A DIRECT QUOTE AND HECKLER VERSUS
CANEY SAYS THAT APPLIES ALSO IN THE CIVIL CONTEXT AND THE
LIMITS, PROSECUTORIAL DISCRETION RECOGNIZE, IN OTHER WORDS, YOU S
ATTORNEY OFFICE OFFICE MIGHT PROSECUTE GANG VIOLENCE AND LET
LOW LEVEL MARIJUANA CASE IS. >>IF A COURT HAS HELD A STATUTE
CONSTITUTIONAL VIEW DO YOU BELIEVE A PRESIDENT SHOULD HAVE
TO ENFORCE IT?>>LET’S TALK ABOUT THE
MARIJUANA LAWS, THOSE ARE CONSTITUTIONAL AND AUS ATTORNEY
OR THE ATTORNEY GENERAL COULD SAY WERE NOT GOING TO DEVOTE OUR
RESOURCES TO LOW LEVEL.>>LET ME TRY ANOTHER EXAMPLE.
THE TEXAS CASE ON PRE-EXISTING CONDITIONS. THE
ADMINISTRATION HAS TAKEN IT IS UNCONSTITUTIONAL AND TAKING THE POSITION THAT YOU
COULD ACTUALLY THROW PEOPLE OFF THEIR INSURANCE IF THEY HAVE A
PRE-EXISTING CONDITION SO LET’S SAY THAT THAT LAW IS FOUND TO BE
CONSTITUTIONAL. COULD THE PRESIDENT CHOOSE NOT TO
IMPLEMENT THAT PART OF THE LAW PROVIDING PROTECTION FOR
PRE-EXISTING CONDITIONS?>>THAT IS A PENDING CASE SO I
CANNOT TALK ABOUT THAT.>>THIS IS MY CONCERN BECAUSE OF
THIS EXPANSIVE VIEW OF EXECUTIVE POWER. I WANT TO MOVE ON TO SOME
CONSUMER ISSUES. IN 2016 YOU WROTE A OPINION THAT WAS LATER
OVERTURNED BY THE CIRCUIT IN WHICH YOU FOUND THE CONSUMER
FINANCIAL PROTECTION BUREAU UNCONSTITUTIONAL. THE MAJORITY
RECOGNIZED IT MILLIONS OF PEOPLE WERE DEVASTATED BY THE FINANCIAL
CRISIS AND THEY UPHELD THIS BUREAU AND WE KNOW IN REAL-TIME
THE BUREAU HELPED ABOUT 30 MILLION CONSUMERS OBTAIN $12
BILLION IN RELIEF. I WANT TO TALK ABOUT THE
CONSEQUENCES OF THIS LEGALLY. YOU LOOK AT THE RELEVANT HISTORY
AND AGENCIES LIKE THAT THE CONSUMER FINANCIAL PROTECTION
BUREAU AMOUNT TO A HEADLESS FOURTH
BRANCH OF THE GOVERNMENT AND THEY POSE A SIGNIFICANT THREAT
TO INDIVIDUAL LIBERTY. DOES IT FOLLOW THAT YOU THINK THAT OTHER
INDEPENDENT AGENCIES ARE ALSO CONSTITUTIONALLY SUSPECT?
>>THE SUPREME COURT HAS UPHELD THAT DECISION SINCE 1935 THAT
THE CONCEPT AND PRACTICE OF INDEPENDENT AGENCIES AND ON THE
CFPB DECISION THE STRUCTURE OF THE AGENCY
DEVIATED FROM THE TRADITIONAL HISTORICAL PRACTICE.
>>DO YOU THINK THAT HUMPHREYS CASE WAS CORRECTLY DECIDED?
>>IT IS A PRESIDENT AND IT HAS BEEN REAFFIRMED MANY TIMES. ON
THAT CASE I NEED TO GET THIS OUT WHICH IS , I DID NOT SAY THAT THE AGENCY
HAD TO STOP OPERATING. THEY COULD CONTINUE AND THEY STILL
OPERATE. MY CONSTITUTIONAL CONCERN WAS THE STRUCTURE WITH
THE SINGLE MEMBER HEAD WHICH HAD NEVER BEEN DONE BEFORE WITH AN
INDEPENDENT AGENCY AND THE REMEDY WOULD NOT HAVE BEEN TO
INVALIDATE IT, BUT WOULD HAVE BEEN TO MAKE THAT PERSON
REMOVABLE AT WILL AND IF YOU WANTED TO AMEND-
>>IT ALSO CONCERNS ME BECAUSE OTHER AGENCIES LIKE SOCIAL
SECURITY ADMINISTRATION IN THE OPINION THEY ARE ALSO HEADED UP
BY ONE PERSON SO DOES IT FOLLOW THAT AGENCY AS WELL WOULD BE
UNCONSTITUTIONAL?>>AGAIN, SENATOR, THE REMEDY, IF THERE IS A
PROBLEM IS NOT THAT THE AGENCY HAS TO STOP THE REMEDY IS THAT
THE SINGLE PERSON WOULD BE REMOVABLE AT WILL INSTEAD OF FOR
CAUSE. THE AGENCY WOULD CONTINUE.
>>IT WOULD NOT HAVE ANYONE HEADING IT UP.
>>IT WOULD HAVE A SINGLE PERSON, BUT REMOVABLE AT WILL
AND IN THAT CASE THE AGENCY->>I WANT TO TURN TO WHAT THE
MAJORITY FELT ABOUT YOUR DISSENT AND THEY RECOGNIZE THAT WOULD
THREATEN MANY IF NOT ALL INDEPENDENT AGENCIES. I WOULD
ADD OTHERS LIKE FEDERAL RESERVE AND SECURITIES AND IS IT FOLLOW YOU THINK THOSE
ARE UNCONSTITUTIONAL? >>I DIDN’T SAY ANYTHING
REMOTELY LIKE THAT. ALL I WAS TALKING ABOUT WAS A SINGLE HEADED INDEPENDENT
AGENCY.>>THAT IS LIKE SOCIAL SECURITY. THE MULTIMEMBER INDEPENDENT
AGENCIES AND THOSE AGENCIES ARE ALL THE TRADITIONAL FAMILY CONCERN I
EXPLAINED WITH THE SINGLE DIRECTOR GOES BACK TO YOUR
POINTS ABOUT FEDERALIST 47 IF YOU HAVE AN INDEPENDENT
AGENCY THAT IS UNACCOUNTABLE TO CONGRESS OR THE PRESIDENT AS ONE
PERSON IN CHARGE, THAT BECOMES AN EXTREMELY POWERFUL POSITION.
>>OKAY, BUT SOCIAL SECURITY HAS BEEN THAT FOR A LONG TIME AND MY
QUESTION IS YOU TALKED ABOUT HOW CONGRESS HAD TO STEP IN. THAT IS
A LOT OF THE ARGUMENT YOU HAVE MADE THAT CONGRESS WOULD HAVE TO
STEP IN. IN THIS CASE CONGRESS STEPPED IN. WE HAD THIS MAJOR
CRISIS AND WE HAVE DONE THIS AND THEN YOU COME IN AND AND A
MINORITY OPINION AND YOU SAY THAT IT IS UNCONSTITUTIONAL AND
I WOULD THROW ANOTHER QUOTE. YOU QUOTED HAMILTON YESTERDAY FROM
FEDERALIST 83 WHEN HE SAID THE RULE OF LEGAL INTERPRETATION ARE
RULES OF COMMON SENSE.>>YES.
>>IT DOESN’T MAKE SENSE TO ME THAT WE WOULD THROW AN AGENCY
OUT LIKE THAT>>I DIDN’T. YOU ARE PUTTING
YOUR JUDGMENT IN THE PLACE OF CONGRESS. UP I DIDN’T THROW THE AGENCY
OUT. I SAID THEY COULD CONTINUE OPERATING AS IT WAS. THE ONLY
CHANGE WOULD BE INSTEAD OF BEING IS CAUSE WOULD BE AT WILL. THERE
WAS A JUDGE, NOT ME ON THE COURT WHO SAID BECAUSE OF THAT FLAW
THE WHOLE AGENCY HAD TO STOP OPERATING. I SPECIFICALLY AND
EXPLICITLY REJECTED THAT AS A REMEDY AND SAID THE AGENCY CAN
CONTINUE OPERATING DOING THE FUNCTION.
>>LET’S GO TO ONE WHERE YOU DID THROW OUT THE LITTLE OF NET
NEUTRALITY AND AND THAT IS MY MIND OF A FREE AND OPEN INTERNET
ALLOWING CONSUMERS AND SMALL BUSINESSES TO HAVE AN EQUAL
PLAYING FIELD. THE SECRETARY IN YOUR OWN
OPINION YOU WENT OUT OF YOUR WAY TO DISSENT AGAINST THE
PROTECTIONS. THIS WAS THE FULL COURT AGAINST YOU AND THE RULES
WERE UPHELD BY A PANEL OF JUDGES APPOINTED BY PRESIDENTS
FROM BOTH PARTIES AND HERE YOU RELIED ON SOMETHING ELSE THAT
YOU CAME UP CALLED THE MAJOR ROLE OF DOCTRINE AND I KNOW IT
HAS BEEN MENTIONED, IN CLAIMING THAT THE FCC LACKED AUTHORITY TO
ISSUE NET NEUTRALITY RULES BECAUSE THEY WERE MAJOR. IT
FEELS TO ME LIKE CONGRESS SET UP THE FCC AND THEY ARE DOING THEIR
JOB AND THEY PUT FORWARD THESE RULES
NET NEUTRALITY AND YOU INSERT YOUR JUDGMENT TO SAY THEY ARE
UNCONSTITUTIONAL. TELL ME WHERE I AM WRONG. THAT THE MAJOR WOLF
DOCTRINE IS ROOTED IN SUPREME COURT PRECEDENT AND THEREFORE AS
A LOWER COURT JUDGE I WAS BOUND TO APPLY IT. IT WAS APPLIED AND
IN THE GODFATHER OF THE MAJOR RULES OR QUESTIONS DOCTRINE IS
JUSTICE BREYER WHO WROTE ABOUT IT IN THE 1980S AS A WAY TO
APPLY THE SUPREME COURT ADOPTED THAT AND APPLIED IT IN THE CASE,
THE ONE YOU REFERENCED AND WITH THAT OPINION SAYS IS IT IS OKAY
FOR CONGRESS TO DELEGATE VARIOUS MATTERS TO THE EXECUTIVE
AGENCIES AND ON MAJOR QUESTIONS OF MAJOR ECONOMIC OR SOCIAL
SIGNIFICANCE WE EXPECT CONGRESS TO SPEAK
CLEARLY BEFORE SUCH A DELEGATION AND THAT HAD NOT HAPPENED IN MY
VIEW IN RESPECT TO NET NEUTRALITY AND I –
>>MINOR ROLES WOULD BE OKAY AND NOT MAJOR. YOU SAID YOU KNOW THE
DIFFERENCE WHEN YOU SEE IT AND I THINK THAT IS WHY THE OTHER
JUDGES APPOINTED BY BOTH PARTIES WENT WITH THE TRADITIONAL AND
PRECEDENTIAL VIEW AND FROM THE CASE IN 2015 AND WHAT I
AM TRYING TO SHOW IS THIS PATTERN WHERE YOU SAY CONGRESS
SHOULD STEP IN AND YOU ARE STEPPING IN.
>>I WOULD SAY IT IS A PATTERN OF ADHERING TO
PRECEDENT. >>IT SEEMS LIKE WHEN YOU LOOK
AT CHEVRON AND I KNOW THE WHITE HOUSE TOUTED THE FACT THAT YOU
HAVE OVERRULED A FEDERAL AGENCY ACTION 75 TIMES AND THEY SAID
YOU LED THE EFFORT TO RAIN IN EXECUTIVE AGENT THESE WHEN YOU
WERE ANNOUNCED AND HOW DO YOU EXPLAIN THAT.>>I DON’T KNOW, I DON’T KNOW
WHAT THAT IS REFERRING TO. I KNOW MY RECORD. I AM SURE I HAVE
UPHELD AGENCY DECISIONS DOZENS OF TIMES. WE GET AGENCY CAISSONS
AND THAT’S WHAT WE DO AND I HAVE UPHELD THEM I’M SURE IN THE SAME RANGE IF
NOT MANY MORE TIMES AND I THINK MY RECORD WILL SHOW THAT I HAVE
RULED BOTH WAYS ON THOSE KINDS OF CASES. I DON’T HAVE A PRO THIS OR PRO
THAT. >>ONE LAST QUESTION IN THIS
AREA. A MAJOR RULE OF DOCTRINE RAISES QUESTIONS TO ME ABOUT
YOUR VIEW OF CHEVRON AND AS YOU KNOW IT IS THE 1984 CASE WHERE
THE COURT GENERALLY DEFERRED TO REASONABLE
INTERPRETATIONS OF AGENCIES AND WHAT WOULD YOU REPLACE IT WITH
IF YOU ARE NOT GOING TO UPHOLD IT?
>>THE PRESIDENT — THE PRECEDENT AND THE WHOLE QUESTION
OF AMBIGUITY HAS BECOME DIFFICULT INQUIRY AT LEAST IT
HAS IN MY 12 YEARS. HOW MUCH AMBIGUITY IS ENOUGH AND I WROTE
A LAW REVIEW ARTICLE ABOUT THAT PROBLEM OF JUDGES DISAGREEING
ABOUT HOW MUCH IS ENOUGH AND I ALSO SAID THAT THEY SERVE GOOD
PURPOSES IN CASES WHERE IT CAN BE AN OVERLAP SO STATUTORY TERMS
LIKE FEASIBLE OR REASONABLE ARE TERMS OF DISCRETION THAT ARE
GRANTED TO AGENCIES AND THAT COURTS SHOULD BE CAREFUL NOT TO
UNDULY SECOND-GUESS AGENCIES AND I HAVE WRITTEN AN OPINION WHERE
I MADE CLEAR THAT THE COURT SHOULD NOT BE UNDULY
SECOND-GUESSING AGENCIES.>>I WANT TO MOVE TO
CAMPAIGN-FINANCE BECAUSE THOSE ARE THE DOCUMENTS I RECEIVED AND
COULD MAKE PUBLIC. I THINK THEY SHOULD ALL BE MADE PUBLIC THE
ONES THAT AND I DON’T LIKE THIS COMMITTEE CLASSIFICATION WHAT
HAPPENED, BUT THE CHAIRMAN ALLOWED ME TO MAKE THOSE PUBLIC
AND IN THOSE DOCUMENTS IN ONE EMAIL FROM MARCH 2002 YOU
DISCUSS LIMITS ON CONTRIBUTIONS SAYING AND I HAVE HEARD VERY
PEOPLE SAY THAT THE LIMITS ON CONTRIBUTIONS TO CANDIDATES ARE UNCONSTITUTIONAL
ALTHOUGH I TEND TO THINK THOSE LIMITS HAVE SOME CONSTITUTIONAL
PROBLEMS. I WANT TO KNOW THE CASE FROM 76 IT SEEMS LIKE
YOU HAVE SOME ISSUES FROM THOSE RULINGS.
>>THE BUCKLEY DIVIDE AS YOU KNOW IS THAT EXPENDITURES ON THE
ONE SIDE CONGRESS DOES NOT HAVE
SUBSTANTIAL AUTHORITY TO REGULATE CAN CONTRIBUTIONS WHEN
IT IS ON THE OTHER SIDE. THEY DO HAVE AUTHORITY TO REGULATE AND
HAS DONE SO. WITH RESPECT TO LIMITS THERE ARE CASES WHERE THE
LIMITS ARE TOO LOW SO SUBSEQUENT TO THE EMAIL THE SUPREME COURT
HAS TWICE STRUCK DOWN CONTRIBUTION LIMITS ONE IN THE
CASE ON RANDALL. >>I AM AWARE OF THESE CASES.
>>I DON’T THINK, BERKELEY VERSUS VALLEJO IS AN IMPORTANT
PRECEDENT. CITIZENS UNITED WHICH FLUSHES OUT SOME OF THOSE.
>>MY ISSUE IS WE HAVE HAD PAST NOMINEES WHO SAID THEY WOULD
HONOR THAT AND THEY JOINED THE CITIZENS UNITED AND WHEN I HEAR
YOUR DISCUSSION WITH SENATOR WHITEHOUSE IN WHICH YOU TALKED
ABOUT HOW CONGRESS SHOULD STEP IN AGAIN AND THEY DID WITH THE
McCAIN-FEINGOLD BILL AND WE TRIED AND IT WAS STRUCK DOWN
WITH CITIZENS UNITED AND THAT IS THE PROBLEM. WE ARE LEFT WITH
NOTHING BUT A CONSTITUTIONAL AMENDMENT AND I PERSONALLY VIEW
THIS A LAWMAKING FROM THE COURT THE
CITIZENS UNITED CASE AND I AM TRYING TO FIGURE OUT WHERE YOU
ARE ON THIS. DO YOU THINK THEY HAVE CONSTITUTIONAL PROBLEMS AND
WHAT CAN CONGRESS DO? >>AS A D.C. CIRCUIT JUDGE I
HAVE UPHELD LIMITS RULING AGAINST THE RNC WHERE IT WAS
CHALLENGING LIMITS ON CONTRIBUTIONS TO POLITICAL
PARTIES AND I REJECTED THAT CHALLENGE AND ANOTHER
CONTRIBUTIONS BY FOREIGN CITIZENS TO UNITED STATES
ELECTION CAMPAIGNS AND I HAVE HELP OUTLAW.
>>YOUR OPINION LEFT OPEN THE POSSIBILITY OF UNLIMITED
SPENDING BY FOREIGN NATIONALS IN THE UNITED STATES ON ISSUE
ADVOCACY. THE SAME KIND OF ACTIVITY THAT WE SAW BY THE
RUSSIANS IN 26 RAIN AND IN FACT A RUSSIAN COMPANY FACING CHARGES
BROUGHT BY SPECIAL COUNSEL MUELLER ACTUALLY CITED YOUR
OPINION AND ARGUING TO HAVE THESE CHARGES THROWN OUT.
>>OUR CASE DEALT WITH CONTRIBUTION LIMITS SO THAT’S
WHAT I WAS OPINING ON IN THAT CASE. I AM NOT SURE THAT THERE
ARE THE STATE OF THE LAW AND THE EXPENDITURE LIMITS WAS NOT
BEFORE US IN THAT CASE AND I DON’T WANT TO OPINE ON THAT.
>>YOU DID KNOW IT WAS CITED BY->>I DON’T WANT TO TALK ABOUT A
PENDING CASE. MY CASE I HAVE HELD LIMITS ON CONTRIBUTIONS IN TWO CASES IN THE SUPREME
COURT HAS UPHELD CONTRIBUTION LIMITS GENERALLY BUT STRUCK THEM
DOWN WHEN THEY ARE TOO LOW.>>IN LIGHT OF THE RECENT
INDICTMENTS, DO YOU STAND BY YOUR INTERPRETATION OF THE
BIPARTISAN CAMPAIGN REFORM ACT IN THIS CASE, AND THAT CASE?
>>I’M NOT SURE. >>WE CAN GO BACK TO IT ON THE
SECOND ROUND. ANTITRUST, SENATOR LEE AND I RUN THE SUBCOMMITTEE AND AS YOU KNOW IN RECENT YEARS
WE SPOKE ABOUT THIS THE SUPREME COURT HAS MADE IT HARDER TO
INFORM THE LAWS IN CASES LIKE THESE AND MOST RECENTLY AMERICAN EXPRESS.
THIS COULD NOT BE HAPPENING AT A MORE TROUBLING TIME. WE ARE
EXPERIENCING A WAVE OF INDUSTRY CONSOLIDATION, ANNUAL URGING
FILINGS INCREASED BY 50% BY 2010 AND 2016. I AM CONCERNED THAT
THE ROBERTS COURT IS GOING DOWN THE WRONG PATH AND YOUR MAJOR
ANTITRUST OPINIONS WOULD HAVE REJECTED CHALLENGES TO MERGERS
THAT MAJORITY FOUND TO BE ANTI-COMPETITIVE. I
AM AFRAID YOU WILL MOVE IT EVEN FURTHER DOWN THAT PATH STARTING
WITH 2008 THE CASE WHERE WHOLE FOODS ATTEMPTED TO BUY A MARKET
IT IS VERY COMPLICATED SO I WILL GO TO THE GUTS OF IT FROM MY
OPINION AND THE MAJORITY OF COURTS AND REPUBLICAN MAJORITY
AFTER YOU SEE CHALLENGES AND YOU DISSENT AND APPLY YOUR OWN TEST
TO THE MERGER. MY SIMPLE QUESTION IS WHERE DID YOU GET
THIS PRICING TEST?>>I WOULD HAVE AFFIRMED BY THE
DISTRICT JUDGE IN THAT CASE WHICH ALLOW THE MERGER AND THE
DISTRICT JUDGE, JUDGE FREEMAN, AN APPOINTEE OF PRESIDENT
CLINTON AND I WAS FOLLOWING HIS ANALYSIS OF THE MERGER AND THAT
CASE , AS WE DISCUSSED, IS VERY FACT
SPECIFIC AND TURNS ON WHETHER THE LARGER SOUP FOR MARKETS SELL
ORGANIC FOODS. >>WHERE DID YOU GET THE PRICING
TEST? YOU USE DIFFERENT TESTS AND I AM TRYING TO FIGURE THAT
OUT WHAT LEGAL AUTHORITY REQUIRES THE GOVERNMENT TO
SATISFY YOUR STANDARD TO BLOCK A MURDER? I THINK WHAT I REMEMBER
IN OUR DISCUSSION YOU CITED THESE MERGER GUIDELINES. YOU USE THOSE TO COME UP WITH
THIS TEST. >>YOU ARE LOOKING AT THE EFFECT
ON COMPETITION AND WITH THE SUPREME COURT HAS TOLD US FROM
THE LIGHT — LATE 1970S IS TO LOOK AT THE EFFECT ON CONSUMERS
AND WHAT IS THE EFFECT ON THE PRICES FOR CONSUMERS AND THE
THEORY OF THE DISTRICT COURSE AND JUDGE FREEMAN, IN THIS CASE,
IS THAT THE MERGER WOULD NOT CAUSE AN INCREASE IN PRICES BECAUSE THEY WERE COMPETING IN A
BROADER MARKET THAT INVOLVED LARGER SUPERMARKETS. THE
QUESTION IS IS THERE AN ORGANIC FOOD MARKET SOLELY OR IS THERE A
BROADER SUPERMARKET MARKET.
>>I WAS TRYING TO GET FROM WHERE THAT NEW TEST CAME FROM.
IN THE SECOND CASE YOU ALSO DISSENTED IN THE ANTHEM CASE LAST YEAR AND
YOUR OPINION WOULD’VE LOUD MERGER BETWEEN TWO OF THE FOUR
NATIONWIDE HEALTH INSURANCE PROVIDERS WHICH WAS EVENTUALLY
BLOCKED BECAUSE IT WOULD LEAD TO HIGHER PRICES FOR HEALTHCARE IN
THE LONG RUN AND WHAT IS VIEWED AS POOR THE INSURANCE. HERE YOU
WENT A STEP FURTHER AND INSTEAD OF TRYING TO RAISE THE BAR ON
WHAT THE GOVERNMENT WOULD HAVE TO PROVE YOU ALSO TRY TO LOWER
THE BAR FOR COMPANIES TRYING TO JUSTIFY THEIR DEALS AND YOUR
OPINION SUGGESTS YOU WOULD LOWER THE BAR FOR MERGING COMPANIES . DOES THAT REPRESENT YOUR VIEWS
WHEN IT COMES TO MERGERS?>>IS A VERY FACT SPECIFIC CASE AND
THE MARKET IN QUESTION WHERE TO HEALTH INSURERS THAT WERE NOT
SELLING HEALTH INSURANCE IN THE DOWNSTREAM MARKET, BUT WERE ACT
IN AS PURCHASING AGENTS FOR EMPLOYEES IN THE UPSTREAM MARKET
WHERE THEIR NEGOTIATED PRICES WITH HOSPITALS AND DOCTORS SO
THE THEORY AS I UNDERSTOOD IT WHICH I AGREED WITH WAS THAT BY
HAVING A STRONGER PURCHASING AGENT THEY WOULD BE ABLE TO
NEGOTIATE LOWER PROFITS, EXCUSE ME PRICES FOR THE EMPLOYERS AND
I POINTED OUT THAT THERE MIGHT BE A PROBLEM IN THE UPSTREAM
HOSPITAL DOCTOR MARKET AND I DID NOT THINK THERE WAS A PROBLEM IN
THE MARKET THAT WAS AT ISSUE IN THE CASE AND I SAID I WOULD HAVE
SENT IT BACK FOR ANALYSIS ON WHETHER THE MERGER WAS A PROBLEM –
>>YOU DID SUGGEST THEY SHOULD DISREGARD TWO CASES THAT HAVE
BEEN WIDELY RELIED ON FOR MORE THAN 50 YEARS. DO YOU THINK
COURTS APPLIED THESE CASES ARE WRONG TO DO SO?>>I THINK THE SUPREME COURT IN
THE 1970S MOVED AWAY FROM THE ANALYSIS IN THOSE CASES BECAUSE
THOSE FOCUS ON THE EFFECT ON COMPETITION COMING ON COMPETITORS NOT
COMPETITION IN THE 1970S THE SUPREME COURT MOVED TO FOCUS ON
THE EFFECT ON COMPETITION WHICH IN TURN IS CONSUMER WHAT WOULD
BE THE EFFECT ON CONSUMERS.>>SENATOR CRUZ.
>>CAN I JUST-THE ANTITRUST ISSUE IS VERY DENSE AND I AM
VERY CONCERNED ABOUT WHAT IS GOING ON WITH THESE CASES
NATIONALLY AND WHEN I LOOKED AT THESE IT APPEARS TO ME THAT YOU
WOULD GO EVEN FURTHER AND I THINK WE NEED LESS MERGERS NOT
MORE. MORE COMPETITION. >>WHEN I REFERRED TO THE
OVERLAP OF CHEVRON AND STATE FARM THAT IS
WHEN I WAS TALKING ABOUT FEASIBLE. I WASN’T SURE I WAS
CLEAR.>>THANK YOU, MR. CHAIRMAN. WELCOME
BACK. BEFORE I GET INTO QUESTIONS I WANT TO TAKE A
MINUTE TO RECOGNIZE AND THANK THE OUTSTANDING WORK BY THE
CAPITAL POLICE IN TERMS OF IN A CALM AND
PROFESSIONAL MANNER DEALING WITH THE UNFORTUNATE DISRUPTIONS AND
MAINTAINING AN ENVIRONMENT WHERE THIS HEARING CAN FOCUS ON THE
RECORD AND SUBSTANCE OF THIS NOMINEE. THANK YOU FOR THE
TREMENDOUS WORK.>>I THINK WE WOULD LIKE TO
SECOND THAT SENTIMENT ON OUR SIDE AS
WELL. >>THINKS BOTH OF YOU VERY MUCH.
I HAVE EXPRESSED THAT TO MANY OF THE POLICEMAN INDIVIDUALLY AS I
SEE THEM. PROCEED. STARTING 30 MINUTES OVER.
>>LET’S START WITH A GENERAL QUESTION. WHAT MAKES A GOOD
JUDGE?>>SENATOR, A GOOD JUDGE IS
INDEPENDENT, FIRST OF ALL, UNDER OUR CONSTITUTIONAL SYSTEM , SOMEONE WHO IS IMPARTIAL WHO
IS AN UMPIRE WHO IS NOT WEARING THE UNIFORM OF WIND POLICY OR
ANOTHER, SOMEONE WHO READS THE LAW AS WRITTEN INFORMED BY
HISTORY AND TRADITION AND THE LAW IS WRITTEN BY THE
CONSTRUCTION THAT ARE SETTLED IN STATUTORY CASES AND THAT TREATS
LITIGANTS WITH RESPECT AND RIGHTS OPINIONS THAT ARE
UNDERSTANDABLE AND RESOLVE THE ISSUES. CIVILITY HELP MAKE A
GOOD JUDGE. A GOOD JUDGE UNDERSTANDS THAT REAL PEOPLE ARE
AFFECTED IN THE REAL WORLD HERE THE LITIGANTS IN FRONT OF THEM
AND THE OTHER PEOPLE AFFECTED BY THE DECISIONS THE JUDGE DECIDES
WHERE THE COURT DECIDES IN A PARTICULAR CASE. A GOOD JUDGE
PAYS ATTENTION TO PRECEDENT WHICH ARE ROOTED IN ARTICLE 3
AND CRITICALLY IMPORTANT TO THE STABILITY AND PREDICTABILITY AND
RELIANCE INTEREST THAT ARE PROTECTED BY THE LAW. THERE ARE
A NUMBER OF THINGS THAT GO INTO MAKING A GOOD JUDGE. A WORK
ETHIC. IT IS HARD WORK TO DIG IN AND FIND THE RIGHT ANSWER IN A
PARTICULAR CASE AND I THINK THAT IS CRITICALLY IMPORTANT AS WELL.
JUDICIAL TEMPERAMENT. THERE ARE A LOT OF FACTORS THAT GO INTO IT AND THOSE ARE SOME OF THEM. I AM
SURE THERE ARE MORE.>>IT IS STRIKING BOTH OVERHEATED RHETORIC WE HAVE
HEARD FROM SOME OF OUR DEMOCRATIC COLLEAGUES AND ALSO
FROM SOME OF THE PROTESTERS OVER THE LAST TWO DAYS. I TOOK A
LOOK AT YOUR RECORD COMPARED TO THAT OF CHET GARLAND, CHET
GARLAND WAS APPOINTED TO THE D.C. CIRCUIT BY BILL CLINTON AND
WAS PRESIDENT OBAMA PROMISED — OBAMA’S NOMINEE. ON THE 12 YEARS YOU HAVE BEEN ON
THE D.C. CIRCUIT, OF ALL THE MATTERS THAT YOU AND CHIEF
JUDGE GARLAND HAVE VOTED ON TOGETHER THAT YOU VOTED TOGETHER
93% OF THE TIME. NOT ONLY THAT, OF THE 28 PUBLISHED OPINIONS
THAT YOU HAVE AUTHORED WHERE CHIEF JUDGE GARLAND JOINED 27
OUT OF THE 28 OPINIONS YOU ISSUED WHEN YOU ARE ON A PANEL
TOGETHER. IN OTHER WORDS HE JOINED 96% OF THE PANEL OPINIONS
THAT YOU HAVE WRITTEN AND THE SAME IS TRUE IN THE REVERSE. OF
THE 30 THAT TREND — CHIEF JUDGE GARLAND HAS YOU HAVE JOINED 28
OUT OF 30 OF THEM. OVER 93%. WHAT IS YOUR REACTION TO THAT
DATA ?
>>I THINK WE ARE TRYING HARD TO FIND COMMON GROUND AND TO, AS I HAVE SAID BEFORE, HE IS
A GREAT JUDGE AND A GREAT CHIEF JUDGE AND HE IS VERY CAREFUL AND
HARD-WORKING AND WE WORK WELL TOGETHER AND TRY TO READ THE
STATUTE AS WRITTEN AND THE PRECEDENT AS WRITTEN AND HE IS A
JUDGE LIKE I TRIED TO BE, A JUDGE THAT IS NOT TRYING TO
IMPOSE ANY PERSONAL PREFERENCES ON THE DECISION, BUT TAKE THE
LAW AS WRITTEN AND THAT IS WHAT I HAVE TRIED TO DO IN THOSE
CASES AND THAT EXPLAINS SOME OF THAT. IT ALSO GOES BACK I
DON’T-I THINK JUDGES ARE DISTINCT FROM POLICYMAKERS AND
THAT SHOWS UP WHEN YOU DIG INTO THE ACTUAL
DETAILS OF HOW COURTS OPERATE AND GO ABOUT THEIR BUSINESS AND
YOU KNOW WELL FROM YOUR ARGUMENTS AND SEEING JUDGES
DECIDE CASES IN REAL-TIME AND I THINK THOSE STATISTICS REFLECT
THE REALITY OF HOW THEY GO ABOUT THEIR BUSINESS AND I HAVE SAID SEVERAL TIMES I
THINK THE SUPREME COURT AS A TEAM OF NINE AND I TRY TO BE A
TEAM PLAYER. OF COURSE THERE WILL BE DISAGREEMENTS SO I DON’T
WANT TO OVERSTATE, IF YOU HAVE THAT MINDSET WHERE A COURT
WITHOUT DIFFERENT SIGNS OF AN AISLE OR SEPARATE CAUCUS ROOMS,
TRYING TO FIND THE RIGHT ANSWER I THINK THERE IS A RIGHT ANSWER
IN MANY CASES AND MAY BE A RANGE OF REASONABLE
ANSWERS AND I THINK THAT IS WHAT THOSE STATISTICS REFLECT.>>YOU TALKED ABOUT THE
DIFFERENCE BETWEEN YOUR OWN POLICY PREFERENCES AND WHAT THE
LAW DESCRIBES OR MANDATES, HOW WOULD YOU DESCRIBE A JUDICIAL
ACTIVIST ?
>>I WOULD DESCRIBE IT AS SOMEONE WHO LETS HIS OR HER
PERSONAL OR POLICY PREFERENCES OVERRIDE THE BEST INTERPRETATION
OF THE LAW AND THAT CAN GO IN EITHER DIRECTION. A JUDGE WHO
STRIKES DOWN A LAW AS UNCONSTITUTIONAL AND DON’T SUPPORT THAT RESULT OR
A JUDGE IN THE OTHER PROJECTS — DIRECTION WHO UPHOLDS THE LAW AS
CONSTITUTIONAL WHEN THE PRECEDENT SUGGESTED IS
UNCONSTITUTIONAL. SO TO IN STATUTORY CASES IT IS THE SAME
PRINCIPLE WHEN A JUDGE DOES NOT STICK WITH THE COMPROMISES YOU
HAVE REACHED AND WRITTEN INTO THE TEXT INTO THE STATUTE AND
THINKS THAT THE JUDGE CAN IMPROVE ON IT IN SOMEWAY OR
TAKES PART OF A COMMITTEE REPORT AND SAYS I AGREE WITH THAT
REVIEW AND I’M GOING TO SUPERIMPOSE THAT ON THE TEXT AND
THAT TO ME IS THE TEXTBOOK DEFINITION OF A
JUDICIAL ACTIVIST ADDING TO OR SUBTRACTING FROM THE TEXT THAT
IS INFORMED BY THE PRECEDENT. >>YOUR TIME ON THE D.C. CIRCUIT
YOU HAVE WRITTEN MANY ON THE SEPARATION OF POWERS. WHY
DOES THAT MATTER? WHY SHOULD AN AMERICAN AT HOME WATCHING THIS
CARE ABOUT THE SEPARATION OF POWERS COLLECTS>>PEOPLE SHOULD CARE ABOUT
SEPARATION OF POWERS BECAUSE IT PROTECTS INDIVIDUAL LIBERTY. IT
IS THE FOUNDATION DETECTION OF INDIVIDUAL LIBERTY. WE THINK OF
THE FIRST AMENDMENT, FREEDOM OF RELIGION, FREEDOM OF SPEECH AS
FOUNDATIONAL PROTECTIONS OF INDIVIDUAL LIBERTY, BUT AS
JUSTICE SCALIA USED TO SAY THE OLD SOVIET CONSTITUTION HAD A
BILL OF RIGHTS, BUT IT WAS MEANINGLESS IN OPERATION BECAUSE
THEY DID NOT HAVE AN INDEPENDENT JUDICIARY OR A SEPARATION OF
POWER TO HELP DETECT THOSE INDIVIDUAL LIBERTIES SO IT WORKS
IN TWO WAYS, THE INDEPENDENT JUDICIARY THAT HELPS ENFORCE
THOSE RIGHTS AND SECONDLY, THE STRUCTURE I HAVE EXPLAINED TILTS
TOWARD LIBERTY IN THE SENSE THAT YOU START WITH IT IS HARD TO PASS A LAW TO
AFFECT WHAT YOU DO OR CANNOT DO, HARD TO GET A LAW THROUGH
CONGRESS AND THAT IS BY DESIGN. BICAMERALISM PRINCIPLE AND AS
WELL AS THE PRESIDENT IS DESIGNED TO PREVENT THE
PASSIONS OF THE MOMENT FROM OVERWHELMING AND ENACTING A LAW
BASED ON THE PASSENGER RATHER THAN A DIFFICULT PROCESS. THEN
EVEN AFTER YOU PASS A LAW THE PRESIDENT HAS SOME EXECUTIVE
BRANCH HAS PROSECUTORIAL DISCRETION WHEN AND HOW TO
ENFORCE PARTICULAR LAWS. WHO IS PROTECTED BY THAT DISCRETION?
ULTIMATELY IT PROTECTS INDIVIDUAL LIBERTY AND EVEN WHEN
THE CONGRESS PASSES A LAW AND THE EXECUTIVE HAS ENFORCE THE
LAW THAT DOESN’T MEAN YOU GO STRAIGHT TO PRISON. IF YOU ARE
CHARGED WITH A CRIME YOU GO BEFORE AN INDEPENDENT JUDICIARY
AND TO ADD FURTHER PROTECTIONS YOU HAVE THE JURY PROTECTIONS
THAT ARE IN THE ORIGINAL CONSTITUTION AND REFLECTED IN
THE BILL OF RIGHTS. IN CHECK AFTER CHECK THE CONSTITUTION
TILTS TOWARD INDIVIDUAL LIBERTY. THE SEPARATION OF POWERS AND
SHORES THERE ARE CHECKS ON THE BRANCHES. WHAT DO WE DO FOR
EXAMPLE MEMBERS OF CONGRESS DON’T SURF FOR LIFE. YOU HAVE TO
RUN FOR REELECTION AND THAT HELPS ENSURE ACCOUNTABILITY. THE
DOCUMENTS ARE FULL OF PROTECTIONS OF INDIVIDUAL
LIBERTY AND THAT IS WHY THE SEPARATION OF POWERS MATTERS AS MUCH AS THE INDIVIDUAL
PROTECTIONS IN THE BILL OF RIGHTS AND THE ORIGINAL
CONSTITUTION.>>HOW ABOUT THE DOCTRINE OF
FEDERALISM. YOU HAVEN’T ENCOUNTERED THAT AS MUCH. CAN
YOU SHARE WITH THIS COMMITTEE WHY FEDERALISM MATTERS AND WHY AMERICANS WATCHING THIS
HEARING SHOULD CARE ABOUT THE PRINCIPLES OF FEDERALISM?
>>FEDERALISM MATTERS FOR SEVERAL REASONS. IT HELPS
FURTHER INDIVIDUAL LIBERTY IN THE SENSE OF ADDITIONAL
PROTECTION SO AN EXAMPLE, IF THE CONSTITUTION, THE FOURTH
AMENDMENT ONLY PROTECTS AGAINST UNREASONABLE SEARCHES AND
SEIZURES UP TO A CERTAIN LINE IT IS POSSIBLE YOUR STATE
CONSTITUTION WILL PROTECT YOU FURTHER UNDER THAT FOR YOUR STATE
LEGISLATURE MIGHT PROTECT YOU FURTHER. FURTHER PROTECTIONS AND
FEDERALISM ALSO OPERATES IN A DIFFERENT WAY A LABORATORY OF
DEMOCRACY IN THE SENSE OF EXPERIMENTATION AROUND THE
COUNTRY THAT IS NOT ALWAYS THE SAME VIEWS IN TEXAS THAT THERE
MIGHT BE IN CALIFORNIA AND YOU HAVE DIFFERENT LAWS AND
DIFFERENT LAWS IN THOSE STATES AND ALSO THE FEDERALISM SERVES
THE MORE GENERAL IDEA OF THE GOVERNMENT THAT IS CLOSEST TO
YOU FOR MOST OF YOUR DAY TODAY ACTIVITIES. MY WIFE IS IN LOCAL
GOVERNMENT NOW AS A TOWN MANAGER AND THE
FEDERALISM FOR THE THINGS THAT AFFECT YOU ON A DAILY BASIS THE
PAVING, THE LEAF AND TRASH COLLECTION AND THE LOCAL SCHOOLS WHICH IS PROBABLY THE MOST
DIRECT IMPACT THAT PEOPLE HAVE, THE LOCAL COURT SYSTEM, MY MOM
WAS A STATE TRIAL JUDGE, THE WHOLE SYSTEM OF STATE GOVERNMENT
IS MOST PEOPLE’S INTERACTION WITH GOVERNMENT AND FEDERALISM
IN THAT SENSE ENSURES ACCOUNTABILITY BECAUSE YOU KNOW
BETTER. YOUR LOCAL AND STATE ELECTED OFFICIALS AND YOU CAN
MAKE YOUR VIEWS KNOWN ON WHATEVER GOVERNMENTAL ISSUES OF
CONCERN, FOR EXAMPLE, THE SCHOOL IS A CLASSIC ONE.
>>WHAT IS THE IMPORTANCE AND RELEVANCE OF THE 10th AMENDMENT
LIKE >>THE 10th AMENDMENT PROTECTS
FEDERALISM IN THE SENSE OF ENSURING THE STATES HAVE
INDEPENDENT SOVEREIGN, THEY MAY CLEAR WHICH IS CLEAR FROM THE
STRUCTURE AND REINFORCES THE IDEA THAT THE STATES ARE
SOVEREIGN INDICES — ENTITIES THAT HAVE AUTHORITY UNDER THE
CONSTITUTION AND THAT THEY HAVE THE STATUS SEPARATE SOVEREIGN
UNDER THE CONSTITUTION AND YOUR SOLICITOR GENERAL OF TEXAS AND
YOU REPRESENTED THE STATE OF TEXAS IN MANY CASES WHERE THE
SOVEREIGNTY COULD PASS ITS LAWS AND ENFORCE ITS LAWS WAS
CRITICAL AND THE SOVEREIGNTY OF THE INDIVIDUAL STATES IS
IMPORTANT FOR THE PEOPLE AGAIN FOR THE ACCOUNTABILITY AND
LOCAL GOVERNMENT AND ALSO FOR THE PROTECTION OF INDIVIDUAL
LIBERTY AND I THINK THE 10th AMENDMENT UNDERSCORES THAT AND
HELPS SOMETHING ELSE WHICH IS THE STATES CANNOT BE
COMMANDEERED BY THE FEDERAL GOVERNMENT. COMMANDEERING DOCTRINE OF THE
SUPREME COURT WHICH RECOGNIZES AND THIS IS FROM THE STRUCTURE
AS A WHOLE AND UNDERSCORED, BUT THE FEDERAL GOVERNMENT CANNOT
ORDER STATES TO DO CERTAIN THINGS THAT IS AN IMPORTANT PART
OF THE PRINCIPLE RECOGNIZED BY THE
SUPREME COURT AND COMES OUT OF THE CONSTITUTION.
>>WHAT DO YOU MAKE OF THE NINTH AMENDMENT? IT WAS FAMOUSLY
DESCRIBED AS AN INK BLOT.>>THE NINTH AMENDMENT AND THE PRIVILEGES AND IMMUNITIES
CLAUSE AND THE SUPREME COURT DOCTRINE OF SUBSTANTIVE DUE PROCESS ARE THREE ROADS THAT
SOMEONE MIGHT TAKE THAT ALL LEAD TO THE SAME DESTINATION WHICH IS
THAT IT PROTECTS CERTAIN UNENUMERATED RIGHTS SO LONG AS
THE RIGHTS ARE AS SAID IN THE CLUX BERG
CASE ROOTED IN HISTORY AND TRADITION AND JUSTICE KAGAN
EXPLAINED THIS WELL THAT THE TEST IS QUITE IMPORTANT FOR
ALLOWING THAT PROTECTION OF THE RIGHTS THAT ARE ROOTED WHICH IT
DEFINITELY ESTABLISHES AND MAKING CLEAR THAT WHEN DOING
THAT JUDGES ARE NOT ENACTING THEIR OWN POLICY PREFERENCES
INTO THE CONSTITUTION AND AN EXAMPLE OF THAT IS THE OLD
PIERCE CASE WHERE OREGON PASSED A LAW THAT SAID EVERYONE IN THE
STATE OF OREGON HAD TO ATTEND , EVERY STUDENT HAD TO ATTEND A
PUBLIC SCHOOL AND A CHALLENGE WAS BROUGHT TO THAT BY PARENTS
WHO WANTED TO SEND THEIR CHILDREN TO A PAROCHIAL SCHOOL
IN THE SUPREME COURT ULTIMATELY UPHELD THE RIGHTS OF THE PARENTS TO SEND THEIR
CHILDREN TO A RELIGIOUS PAROCHIAL SCHOOL AND STRUCK DOWN
THAT LAW AND THAT IS ONE OF THE FOUNDATIONS OF THE UNENUMERATED
RIGHTS DOCTRINE THAT IS FOLDED INTO THAT AND ROOTED IN HISTORY.
HOW YOU GET THERE AS YOU KNOW WELL, THERE ARE STACKS OF LAW
REVIEWS WRITTEN TO THE CEILING ON ALL OF THAT WHETHER IT IS
PRIVILEGES AND IMMUNITY FOR NINTH AMENDMENT. ALL ROADS LEAD
TO BAD TEST AS THE TEST THAT THE SUPREME COURT HAS SETTLED ON AS
THE PROPER TEST.>>LET’S TALK A LITTLE BIT ABOUT
THE FIRST AMENDMENT. FREE SPEECH. WHY IS THAT AN IMPORTANT
PROTECTION FOR THE AMERICAN PEOPLE?>>IT IS ONE OF THE BEDROCK OF
AMERICAN LIBERTY THE ABILITY TO SAY WHAT YOU THINK, TO SPEAK
POLITICALLY FIRST OF ALL ABOUT A POLICY ISSUE AND TO SPEAK ABOUT,
FOR EXAMPLE, WHO YOU WANT TO SUPPORT FOR ELECTED OFFICE IS A
CRITICAL PART OF THE FREE-SPEECH PRINCIPAL. IT IS BROADER THAN
THAT. IT IS THE IDEA THAT THERE IS NO ONE TRUTH NECESSARILY THAT
ONE PERSON CAN DICTATE FROM ON HIGH IN TERMS OF POLICY ISSUES
OR SOCIAL ISSUES OR ECONOMIC ISSUES AND THAT THE TRUTH OR
THAT ANSWER EMERGES AFTER DEBATE AND
OVER TIME AND THAT FREEDOM OF SPEECH IS IMPORTANT TO HELP
ADVANCE THAT CAUSE OF DEBATE AND IT IS IMPORTANT AS
AN INDIVIDUAL MATTER TO HAVE THAT PROTECTION WRITTEN INTO THE
CONSTITUTION BECAUSE YOU MAY HAVE AN UNPOPULAR VIEW AT A
PARTICULAR POINTS IN TIME AND IF THAT VIEW WERE SUPPRESSED THAT
VIEW WOULD NEVER TAKE HOLD EVEN THOUGH THAT VIEW WOULD BE THE BETTER OF
YOU. IT IS PARTICULARLY IMPORTANT IN THESE SUPREME COURT
PRECEDENT TO PROTECT UNPOPULAR VIEWS OR VIEWS THAT SEEM OUT OF
FASHION OR OUT OF FASHION AT A PARTICULAR MOMENT IN TIME
BECAUSE OF THE INHERENT DIGNITY THAT THAT PROVIDES TO INDIVIDUAL
PEOPLE AND FOR THE BROADER PURPOSE OF THAT ADVANCE SOCIETAL
PROGRESS OR ECONOMIC PROGRESS OR MOST GOOD IDEAS WERE UNPOPULAR
AT ONE POINTER ANOTHER AND TAKE TIME TO TAKE HOLD AND I THINK THE
FRAMERS UNDERSTOOD THAT. THEY LOOKED AT WHERE THEY CAME FROM
AND HOW THEY HAD TO FIGHT AGAINST SUPPRESSION OF SPEECH AND ALSO
OF RELIGIOUS LIBERTY, OF COURSE, AND FOR THE FREE-SPEECH CRITICALLY IMPORTANT JUSTICE
KENNEDY AND SCALIA IN TEXAS VERSUS JOHNSON WHAT COULD BE
MORE UNPOPULAR THAN BURNING THE AMERICAN FLAG AND THEY UPHELD
THE RIGHT TO DO THAT NOT BECAUSE THEY LIKED IT AND
THAT IS THE WHOLE POINT OF THE CONCURRENCE, BUT BECAUSE THEY
THOUGHT THE FIRST AMENDMENT HAD TO PROTECT THE MOST UNPOPULAR OF
IDEAS IN ORDER TO ACCORD OF FREE SPEECH.
>>YOU MENTIONED RELIGIOUS LIBERTIES, THAT IS ONE OF THE
FUNDAMENTAL LIBERTIES CHERISHED BY AMERICANS ACROSS THE NATION
THE RIGHT TO LIVE ACCORDING TO OUR FAITH AND CONSCIENCE. CAN
YOU SHARE YOUR VIEWS ON THE IMPORTANCE OF RELIGIOUS LIBERTY
AND HOW THE CONSTITUTION PROTECTS IT?
>>YES. TO BEGIN WITH IT IS IMPORTANT IN
THE ORIGINAL CONSTITUTION EVEN BEFORE THE BILL OF RIGHTS THE
FRAMERS MAY CLEAR IN ARTICLE 6 NO RELIGIOUS TEST SHALL EVER BE
REQUIRED AS A QUALIFICATION TO ANY OFFICE OR PUBLIC TRUST UNDER
THE UNITED STATES SO THAT WAS VERY IMPORTANT IN THE ORIGINAL
CONSTITUTION THAT THE FRAMERS THOUGHT IT VERY IMPORTANT THAT
THERE NOT BE A TEST TO BECOME AN OFFICIAL OR A JUDGE UNDER
RELIGION RECOGNIZING THE RELIGIOUS FREEDOM AT LEAST TO
SERVE IN PUBLIC OFFICE AND OF COURSE IN THE FIRST AMENDMENT TO
THE CONSTITUTION RATIFIED IN 1791 THE PRINCIPAL FOR RELIGIOUS
LIBERTIES WRITTEN INTO THE FIRST AMENDMENT TO THE CONSTITUTION
AND THE FRAMERS UNDERSTOOD THE IMPORTANCE OF PROTECTING CONSCIENCE. IT IS
AKIN TO THE FREE-SPEECH AND NO MATTER WHAT GOD YOU WORSHIP OR
IF YOU WORSHIP KNOW GOD AT ALL YOU ARE PROTECTED AS EQUALLY
AMERICAN AS I WROTE IN MY OPINION AND IF YOU HAVE
RELIGIOUS BELIEFS, RELIGIOUS PEOPLE, RELIGIOUS SPEECH, YOU
HAVE JUST AS MUCH RIGHT TO BE IN THE PUBLIC SQUARE AND TO
PARTICIPATE IN THE PUBLIC PROGRAMS AS OTHERS DO. YOU
CANNOT BE DENIED JUST BECAUSE OF YOUR RELIGIOUS STATUS . THAT PRINCIPAL HAS BEEN
ARTICULATED IN A VARIETY OF DIFFERENT WAYS. YOU LOOK AT- IN OTHER COUNTRIES AROUND THE
WORLD IN CHINA, FOR EXAMPLE,- IF YOU LOOK AT OTHER COUNTRIES
AROUND THE WORLD AND YOU ARE NOT FREE TO TAKE YOUR RELIGION INTO
A PUBLIC SQUARE, CROSSES OR BE KNOCKED OFF CHURCHES OR YOU CAN
ONLY PRACTICE IN YOUR OWN HOME, YOU CAN’T BRING YOUR RELIGIOUS
BELIEF INTO THE PUBLIC SQUARE. BEEN ABLE TO PARTICIPATE IN THE
PUBLIC SQUARE IS PART OF THE AMERICAN CONTRARY — AMERICAN
TRADITION. THAT IS IMPORTANT. ALSO ON THE ESTABLISHMENT
CLAUSE- SOME OF THOSE CASES ARE
PARTICULARLY COMPLICATED IN THE SUPREME COURT PRECEDENT AND IN
THE CASE OF THE TOWN OF GREECE AND THEY HAVE RECOGNIZED THAT
SOME RELIGIOUS TRADITIONS IN GOVERNMENTAL PRACTICES ARE
ROOTED IN HISTORY AND TRADITION TO BE UPHELD AND IN THAT CASE THE SUPREME COURT UPHELD THE
PRACTICE OF A PRAYER BEFORE A LOCAL LEGISLATIVE MEETING AND
CHAMBERS ALSO A LOCAL TOWN MEETING I SHOULD SAY THEY UPHELD
THAT IN A LEGISLATIVE MEETING AS WELL. THE RELIGIOUS TRADITION
REFLECTED IN THE FIRST AMENDMENT IS FOUNDATIONAL PART OF AMERICAN
LIBERTY AND IT IS IMPORTANT FOR US AS JUDGES TO RECOGNIZE THAT
AND RECOGNIZE THAT AS WITH SPEECH UNPOPULAR RELIGIONS HAVE
PROTECTED OUR JOB UNDER THE RELIGIOUS FREEDOM ACT AND
MEANING IS SOME ONLINE WE CANNOT QUESTION THE REASONABLENESS OF
IT AND ALL SORTS OF BELIEFS PROTECTED.
RELIGIOUS LIBERTY IS CRITICAL TO THE FIRST AMENDMENT AND THE
AMERICAN CONSTITUTION.>>HOW WOULD YOU DESCRIBE THE
INTERACTION BETWEEN THE FREE EXERCISE CLAUSE AND THE
ESTABLISHMENT CLAUSE AND ARE THEY AT CROSS PURPOSES AN
INTENTION OR ARE THEY COMPLEMENTARY?
>>IN GENERAL IT IS GOOD TO THINK OF THEM BOTH SUPPORTING
THE CONCEPT OF FREEDOM OF RELIGION AND IN THE CASE I WROTE
AND TRIED TO EXPLAIN SOME OF THOSE PRINCIPLES. I THINK IT IS
IMPORTANT TO THINK TO BEGIN WITH YOU ARE EQUALLY AMERICAN NO
MATTER WHAT RELIGION YOU ARE IF YOU ARE NO RELIGION AT ALL THAT
IT IS ALSO IMPORTANT THE SUPREME COURT HAS SAID THAT RELIGIOUS
PEOPLE BE ALLOWED TO SPEAK, ENTER, PARTICIPATE IN
THE PUBLIC SQUARE WITHOUT HAVING TO SACRIFICE THEIR RELIGION IN
SPEAKING IN THE PUBLIC SQUARE OR PRACTICING THEIR RELIGION AND AT
THE SAME TIME I THINK BOTH CLAUSES PROTECT THE IDEA OR
PROTECT AGAINST COERCING PEOPLE INTO PRACTICING A RELIGION THAT THEY MIGHT BE OF A
DIFFERENT RELIGION OR NO RELIGION AT ALL SO THE COERCION
IDEA COMES OUT OF BOTH CLAUSES AS WELL. THE CASES THAT ARE
ESTABLISHMENT CASE CAUSES THE RELIGIOUS SYMBOL CASES AS
YOU WELL KNOW THAT IS A COMPLICATED BODY OF LAW AND EACH
AREA OF THAT HAS TO BE ANALYZED IN ITS OWN AND IN GENERAL I
THINK IT IS GOOD TO THINK OF THOSE TWO WORKING TOGETHER FOR
THE CONCEPT OF FREEDOM OF RELIGION WHICH I THINK IT IS
FOUNDATIONAL TO THE CONSTITUTION.
>>WHEN YOU WERE IN PRIVATE PRACTICE YOU REPRESENTED THE
SYNAGOGUE PRO BONO YOU DID THAT FOR FREE. CAN YOU DESCRIBE FOR
THIS COMMITTEE THAT REPRESENTATION AND WHY YOU
UNDERTOOK IT? >>I UNDERTOOK THAT TO HELP A
GROUP OF PEOPLE WHO WANTED TO BUILD A SYNAGOGUE, THAT WERE
BEING DENIED THE ABILITY TO DO THAT BASED ON A ZONING ORDINANCE
THAT SEEMED TO BE THE APPLICATION AT LEAST IN A WAY THAT SEEMED TO BE DISCRIMINATING
AGAINST THEM BECAUSE OF THEIR RELIGION AND THAT MAY HAVE
ALLOWED OTHER BUILDINGS TO BE BUILT THERE, BUT THEY WERE BEING BLOCKED OR AT
LEAST CHALLENGE FROM BUILDING A SYNAGOGUE SO IT SEEMED TO ME
POTENTIALLY A CASE OF RELIGIOUS DISCRIMINATION THAT WAS BEING
USED TO TRY TO PREVENT THEM FROM BUILDING. I AGREED TO REPRESENT
THEM BECAUSE I LIKE, I WANTED TO DO
THAT KIND OF WORK AND I LIKE TO HELP THE COMMUNITY AND IN THAT
CASE IN PARTICULAR I THOUGHT THESE PEOPLE WANTED TO BUILD
THEIR SYNAGOGUE HAD THE RIGHT TO DO SO AND AS I SAW UNDER THE LAW
AND I THOUGHT I COULD HELP THEM DO SO AND WE PREVAILED AND THE
DISTRICT COURT IN MARYLAND AND THAT SYNAGOGUE NOW STANDS AND THEY WERE VERY GRATEFUL AND THAT
WAS THE KIND OF LITIGATION, THAT WAS A COUPLE OF YEARS I WAS
ACTUALLY AT A LAW FIRM THAT DID SOME WORK LIKE THAT AND THAT WAS
VERY REWARDING TO HAVE A REAL EFFECT ON REAL PEOPLE AND THEIR
PRACTICE OF THEIR RELIGION IN THE STATE OF MARYLAND. THAT IS
SOMETHING THAT MEANS A LOT TO ME. THEY GAVE ME SOMETHING TO
HANG ON THE WALL JUSTICE JUSTICE SHALL WITHOUT PROCEDURE AND THAT
HAS HUNG IN MY CHAMBERS AS A REMINDER OF A REPRESENTATION I
HAD IN THE PAST AND THE IMPORTANCE OF EQUAL TREATMENT IN
RELIGIOUS LIBERTY AND A SUCCESSFUL PRO BONO
REPRESENTATION THAT MEANT A LOT TO ME.
>>I WILL NOTE SOME OF THE DEMOCRATIC SENATORS ON THIS
COMMITTEE- SOME OF THE DEMOCRATIC SENATORS
ON THIS COMMITTEE RICH AND POWERFUL ENTITIES AT
THE EXPENSE OF LITTLE GUYS AT LEAST IN THAT INSTANCE
REPRESENTING A SYNAGOGUE AGAINST THE POWER OF GOVERNMENT TRYING
TO PREVENT IT BEING BUILT AND THAT IS AN INSTANCE YOU CHOSE TO
GIVE YOUR TIME AND YOUR ENERGY AND LABOR FOR FREE TO A LITIGANT
THAT MOST WOULD VIEW AS THE LITTLE GUY IN THAT
BATTLE. BUCKET THAT IS CORRECT AND I TRIED AS A JUDGE ALWAYS TO
RULE FOR THE PARTY THAT HAS THE BEST ARGUMENT ON THE MERITS AND
THAT INCLUDED WORKERS IN SOME CASES, COAL MINERS,
ENVIRONMENTALISTS, BUSINESSES, UNIONS, EMPLOYERS, CRIMINAL DEFENDANTS,
THE PROSECUTION AND I HAVE A LONG LINE OF CASES IN EACH OF
THOSE CATEGORIES AND LITTLE GUY, BIG GUY IS NOT THE RELEVANT
DETERMINATION. IF YOU ARE THE LITTLE GUYS SO TO SPEAK AND YOU
HAVE THE RIGHT ANSWER UNDER THE LAW THEN YOU WILL WIN IN FRONT
OF ME.>>EARLIER IN THE QUESTIONS FROM
SENATOR GRAHAM , HE ASKED YOU A QUESTION, ARE
YOU A REPUBLICAN AND HE ASKED IT IN THE PRESENT TENSE AND YOUR
ANSWER, YOU WOULD DOLLARS THAT YOU HAD BEEN A REGISTERED
REPUBLICAN AND SERVED IN A REPUBLICAN ADMINISTRATION
PREVIOUSLY AND OF COURSE YOU HAVE BEEN A FEDERAL JUDGE FOR 12
YEARS AND DO YOU CONSIDER YOURSELF A REPUBLICAN JUDGE?>>I AM NOT SURE WHAT THE
CURRENT REGISTRATION IS, BUT SHORTLY AFTER I BECAME A JUDGE I
HAVEN’T CHANGED, BUT I DON’T KNOW IF IT IS STILL LISTED. I VOTED IN ONE ELECTION AND
DECIDED, I READ ABOUT THE SECOND JUSTICE ARE ONE HAVING DECIDED
THAT HE DIDN’T WANT TO CONTINUE VOTING WHILE BEING A FEDERAL
JUDGE AND I THOUGHT ABOUT IT AND I WILL BE THE FIRST TO SAY I AM
NOT THE SECOND AND NOT TRYING TO COMPARE MYSELF IN ANY WAY, BUT I
THOUGHT THAT WAS A GOOD MODEL FOR A FEDERAL JUDGE TO
UNDERSCORE THE INDEPENDENCE BECAUSE WE ARE NOT SUPPOSED TO
PARTICIPATE IN POLITICAL ACTIVITIES OR GO TO RALLIES OR
GIVE MONEY AND IT SEEMED LIKE VOTING IS A PERSONAL EXPRESSION
OF YOUR POLICY BELIEFS AND- >>LET ME ASK ONE FINAL
QUESTION. LOU AND I HAVE BOTH HAD THE
CHOICE OF COACHING OUR DAUGHTERS IN BASKETBALL. CAN YOU TELL THIS
COMMITTEE WHAT HAVE YOU LEARNED COACHING THEM PLAYING
BASKETBALL?>>IT HAS BEEN A TREMENDOUS
EXPERIENCE TO BE ABLE TO COACH THEM AND ALL THE GIRLS ON THE
TEAM AND I HAVE LEARNED ABOUT SOMETHING I SAW IN MY OWN LIFE
AND THE IMPORTANCE OF COACHES TO THE DEVELOPMENT OF AMERICA’S
YOUTH, TEACHERS TOO, BUT COACHES CAN HAVE AN IMPACT ON BUILDING
CONFIDENCE AND WHEN YOU SEE THE GIRL DEVELOP CONFIDENCE OVER
TIME OR YOU SEE THEIR COMPETITIVE SPIRIT, TEAMWORK,
THE TOUGHNESS THAT HAS DEVELOPED OVER TIME, THE DRIVE, WIN WITH CLASS, LOSE WITH
DIGNITY, THE ABILITY TO LOSE BUT STILL PUT FORTH YOUR BEST EFFORT
AND I HAVE LEARNED JUST HOW IMPORTANT I THINK I UNDERSTOOD THAT FROM
MY OWN EXPERIENCE AND HOW IMPORTANT IT IS FOR PEOPLE, FOR
COACHES AND THE EFFECT YOU CAN HAVE ON PEOPLE’S LIVES AND I’VE
HEARD FROM A LOT OF THE PARENTS OVER THE PAST EIGHT WEEKS WHILE
I’VE BEEN IN THIS PROCESS ABOUT THE FACT THAT I HAD ON — THE
EFFECT I HAD ON SOME OF THE GIRLS LIVES WHICH IS GREAT TO
HEAR IN TERMS OF MY COACHING SO LIKE I SAID COACHES HAVE AN IMPACT AND I
HAVE LEARNED THAT IS WHY SENATOR KENNEDY SAID
I HOPE YOU KEEP COACHING AND EITHER WAY THIS COMES OUT I WILL
TRY TO KEEP COACHING. THANK YOU.>>THANK YOU. AS WE DISCUSSED IN MY OFFICE AND
A LETTER RESTAURANT — I SENT TO YOU TO FOLLOW UP RULE OF LAW,
SEPARATION OF POWER, PRESIDENTIAL POWER AND I WOULD LIKE TO ENTER INTO THE
RECORD A SERIES OF ARTICLES I THINK LAY SOME OF THE FOUNDATION
FOR MY CONCERNS.>>GO AHEAD.
>>THE NOMINATION MUST BE PAUSED AND HE
MUST RECUSE HIMSELF BY FORMER THIRD CIRCUIT JUDGE AND ETHICS
COUNCIL AND HARVARD LAW PROFESSOR, THIRD IS BRETT
KAVANAUGH RADICAL VIEW , BRETT KAVANAUGH AND LEGAL OPINION
SHOW HE WOULD GIVE DONALD TRUMP UNPRECEDENTED NEW POWERS BY
PROFESSOR SUGARMAN.>>CAN YOU REPEAT WITH THE THIRD
ONE WAS?>>THAT IS NOT A LAW PROFESSOR.
>>IT IS A RANGE OF OPINIONS FROM A RANGE OF PEOPLE. THE RULE
OF LAW REQUIRES EVERYONE IS BOUND BY THE LAW AND AQA TO
ENSURE THAT NO ONE IS OR SHOULD BE
ABOVE THE LAW IS TO ENSURE THAT THE PRESIDENT IS NOT ABOVE THE
LAW BY PREVENTING HIM FROM FIRING SOMEONE APPOINTED TO
INVESTIGATE HIM. SITTING ON A PANEL IN GEORGETOWN IN 1998 YOU
TOOK A DIFFERENT VIEW. YOU SAID THE PROSECUTOR SHOULD BE
REMOVABLE AT WILL BY THE PRESIDENT . GIVEN WHAT IS IN YOUR RECORD,
A LONG RECORD WRITING AND SPEAKING ON THIS TOPIC I THINK
THERE IS LEGITIMATE CAUSE FOR CONCERN ABOUT YOUR VIEWS ON
PRESIDENTIAL POWER AND WHETHER IT IS POSSIBLE PRESIDENT TRUMP
SHOWS YOU SO YOU WOULD PROTECT HIM. DO YOU STILL BELIEVE A PRESIDENT
CAN FIRE AT WILL A PROSECUTOR WHO IS CRIMINALLY INVESTIGATING?
>>THAT IS A QUESTION OF PRECEDENT AND IT COULD COME BEFORE ME EITHER
AS A SITTING JUDGE ON THE D.C. CIRCUIT OR IF I AM CONFIRMED SO
I THINK THAT QUESTION IS GOVERNED BY PRECEDENT. UNITED
STATES VERSUS NIXON THE SPECIAL PROSECUTOR REGULATION IN THAT
CASE WAS AT ISSUE IN THAT- >>I’M JUST ASKING WHETHER YOU
BY YOUR RECORD , SOMETHING THAT YOU CHOSE TO
WRITE IN 1998 AND EXPRESSED A VIEW AT THE TIME THAT A
PRESIDENT CAN FIRE AT WILL A PROSECUTOR EMILY INVESTIGATING
HIM. IS THAT STILL YOUR VIEW? I AM NOT ASKING FOR A NATION OF
PRECEDENT. I’M JUST TRYING TO MAKE SURE I UNDERSTAND YOU
STAND BY THAT VIEW.>>ALL I CAN SAY IS THAT WAS MY
VIEW IN 1998. LET’S MOVE TO A MORE RECENT STATEMENT THAT I
THINK IS EQUALLY IMPORTANT. IN THE WAKE OF THE WATERGATE
SCANDAL PRECIPITATED BY PRESIDENT WHO COMMITTED SOME
CRIME AND WAS INVESTIGATED. CONGRESS PASSED THE INDEPENDENT
COUNSEL STATUTE WHICH RESTRICTED WHEN THE PRESIDENT CAN FIRE AN
INDEPENDENT COUNSEL AND DURING A RECENT SPEECH IN 2016 YOU
DESCRIBED THIS LAW AS “A POST-WATERGATE REFORM” AND A
CONSTITUTIONAL TRACK TRAVESTY. DO YOU STAND BY THAT AS A
CONSTITUTIONAL TRAVESTY ?
>>THAT WAS UNDERSTATED COMPARED TO WHAT MEMBERS OF THIS
COMMITTEE AND OTHERS SAID IN 1999 WHEN THE JUDGE
>>I AM INTERESTED IN YOUR VIEWS AND WHEN YOU CHOSEN A PUBLIC
SPEECH AS A JUDGE TO SAY THAT STAT YOU WAS A CONSTITUTIONAL
TRAGEDY YOU HAVE SOMETHING IN MIND. WHAT ARE YOUR VIEWS ON
THIS AND WHY DO YOU VIEW IT AS A COST TO SELL TRAVESTY?
>>LET ME MAKE SOMETHING CLEAR. THIS IS THE OLD INDEPENDENT
COUNSEL THAT IS DISTINCT FROM THE
SPECIAL COUNSEL SYSTEM THAT I SPECIFICALLY SET IS CONSISTENT
WITH OUR TRADITIONS. I SAID THAT IN THE GEORGETOWN ARTICLE AND I
SAID THAT IN THE CASE MOST RECENTLY. THE STATUTE YOU ARE
TALKING ABOUT, THE INDEPENDENT COUNSEL WAS A DISTINCT REGIME
THAT CONGRESS ITSELF DECIDED NOT TO REAUTHORIZE IN 1999 AND
SENATOR DURBIN SAID IT WAS UNRESTRAINED AND
UNCONSTITUTIONAL.>>IN YOUR VIEWS. YOU CHOSE TO
DESCRIBE IT AS A CONSTITUTIONAL TRAVESTY. WHAT DID YOU MEAN?
>>I MEANT WHAT JUSTIN TAKEN DESMET JUSTICE KAGAN SAID THAT
THE SCALIA DISSENT IN OLSEN AND THIS WAS A QUOTE
WAS ONE OF THE GREATEST EVER WRITTEN AND HAS GOTTEN BETTER
EVERY YEAR BY IDENTIFYING THE DISSENT IS ONE OF THE GREATEST
EVER WRITTEN JUSTICE KAGAN SEEM TO BE SAYING THAT THE MORRISON
OLSEN DECISION WAS WRONG. >>I STRONGLY DISAGREE. YOU
OFFERED THAT QUOTE THE SITE WHEN WE MET AND I WAS STRUCK, PERHAPS
I SHOULD CALL HER AND TELL HER SHE IS ONE OF YOUR HEROES, I
THINK THAT CITATION IS ACTUALLY LITERALLY TRUE BUT MISLEADING IN
CONTACT. SHE WROTE IN A FAMOUS LAW REVIEW ARTICLE STRONGLY
REJECTING THE THEORY WHICH IS AT THE ROOT OF THE DISSENT AND I
BELIEVE JUSTICE KAGAN WAS TALKING ABOUT THE WRITING IN THE
DISSENT NOT AGREEING WITH THE LEGAL THEORY.
>>I DISAGREE WITH THAT. >>I LOOK FORWARD TO EXCHANGING
SOME PAPERS ON THIS AND TOMORROW WE CAN HAVE MORE FUN.
>>IN THAT ARTICLE AND I HAVE READ THAT IT IS A GREAT ARTICLE
PRESIDENTS — PRESIDENTIAL ADMINISTRATION I THINK REFERRING
TO THE INDEPENDENT AGENCY. I THINK REFERRING THERE AT LEAST
I READ HER AS REFERRING TO INDEPENDENT AGENCIES ARE
TRADITIONAL AND PERMISSIBLE AND THE INDEPENDENT COUNSEL STATUTE
WAS SOMETHING DIFFERENT FROM THE INDEPENDENT AGENCIES THAT
EXISTED WITH THE FEDERAL TRADE COMMISSION SECURITIES AND
EXCHANGE COMMISSION. I DID NOT READ HER OLD ARTICLE IN ANY WAY.
LET’S PUT IT THIS WAY. YOU HAVE CRITICIZED THE
INDEPENDENT COUNSEL STATUTE AS A CONSTITUTIONAL TRAVESTY AND I’M
SIMPLY TRYING TO GET TO THE BOTTOM OF WHY YOU HELD THAT VIEW
AND WHY YOU CHOSE TO SAY THAT IN A SPEECH TWO YEARS AGO.
>>MORRISON, OLSON WAS A ONE-OFF
CASE ABOUT A ONE-OFF STATUTE THAT HASN’T EXISTED FOR 20
YEARS. THE STATUTE IS GONE, THE CASE AS JUSTICE KAGAN, I THINK I
TOOK MY LEAVE FROM HER COMMENT. I CITED THAT MANY TIMES IN
SPEECHES I HAVE GIVEN. THAT STATUTE IS REAL IMPORTANT AND I
KNOW YOU KNOW THIS JUST SO EVERYONE UNDERSTANDS THAT HAS
NOT EXISTED SINCE 1999.>>BEHOLDING BY THE SUPREME
COURT EVEN THOUGH THE INDEPENDENT COUNSEL STATUTE HAS
PASSED INTO HISTORY THAT AS A DECISION OF THE SUPREME COURT IS
STILL LAW THAT YOUR OWN CIRCUIT SAID SO FORCEFULLY THIS YEAR.
>>THE EXECUTOR- >>THAT IS A YES OR NO QUESTION.
HELD THIS YEAR WHERE YOU WROTE A DISSENT THAT MORRISON V OLSON IS
STILL GOOD LAW.>>I THINK THEY WERE APPLYING
THAT THE PRINCIPAL. >>AND I QUOTE MORRISON REMAINS
VALID AND BINDING. CRITICIZE YOUR MINORITY AS
FLYING IN THE FACE OF MORRISON.>>AGAIN, WE ARE TALKING ABOUT
INDEPENDENT AGENCIES SO THE TRADITIONAL INDEPENDENT
AGENCY ON THE ONE HAND AND THE OLD INDEPENDENT COUNSEL REGIME
THAT IS LONG GONE ON THE OTHER AND THE INDEPENDENT COUNSEL
REGIME, THIS COMMITTEE AND THE CONGRESS AS A WHOLE DECIDED WAS
A SERIOUS MISTAKE THOSE ARE SENATOR DURBIN’S WORDS. AND-
>>WHAT I’M CONCERNED ABOUT IS NOT SO MUCH WHETHER THERE ARE MEMBERS OF
THIS COMMITTEE OR OTHER JUSTICES WHO VIEW THE INDEPENDENT COUNSEL
STATUTE IS A SERIOUS MISTAKE, BUT WHETHER YOU VIEW THAT IN THE
MAJORITY HOLDING AS A SERIOUS MISTAKE. LET’S MOVE TO THAT
POINT. IN THAT CASE THE COURT UPHELD A
RESTRICTION ON THE POWER TO FIRE THE INDEPENDENT BY A VOTE OF 71 WRITTEN BY REQUEST IT WAS ONLY
JUSTICE SCALIA THAT DISSENTED AND ARGUABLY A WELL-CRAFTED
DEFENSE. FOR THOSE SEVEN JUSTICES WROTE AN IMPORTANT
DECISION WHICH I BELIEVE YOU HAVE CHALLENGED AND THE SIZE
BECAUSE IT RESTRAINED THE PRESIDENT’S FIRE TO — POWER TO FIRE THE INDEPENDENT
COUNSEL. YOU ARE ASKED TO NAME A CASE THAT DESERVED TO BE
OVERTURNED ANY CASE AND AFTER A PREGNANT PAUSE YOU SAID I CAN
THINK OF ONE AND THERE WAS SOME LAUGHING AND SAID SURE MORRISON
V. OLSON AND I AM STRUCK BY THAT . NOT CASES THAT ARE THOUGHT TO
ALL FIRST-YEAR LAW STUDENTS ARE THOUGHT AS SHAMEFUL DECISIONS. YOU CHOSE MORRISON V. OLSON TO
SAY IT HAS BEEN EFFECTIVELY OVERTURNED WHICH I DISAGREE WITH
AND I WOULD PUT THE FINAL NAIL IN THE COFFIN SO HERE IS A
RECENT PUBLIC STATEMENT BY A SITTING D.C. CIRCUIT JUDGE WHO
IS NOW PERFORMING AS A NOMINEE FOR THE SUPREME COURT SO I HAVE
A QUESTION. WOULD YOU OVERTURN IT?
>>SENATOR, FIRST OF ALL IT HAS BEEN OVERTURNED AND ANOTHER IS A
DISGRACE- >>IT IS STRIKING YOU DIDN’T
CHOOSE EITHER OF THEM. YOU REACH OUT AND TALK ABOUT THIS
30-YEAR-OLD DECISION THAT’S THE ONE I WILL HOLD UP TO GET RID
OF.>>I REALLY DID HAVE HER COMMENT
FOREMOST IN MIND. I THOUGHT SHE HAD ALREADY TALKED ABOUT IT AND-
>>NOTHING TO DO WITH A VIEW OF PRESIDENTIAL POWER.
>>I HAVE WRITTEN ABOUT THE SPECIAL COUNSEL SYSTEM AND I
HAVE SAID IN THE 1999 GEORGETOWN ARTICLE THAT THE SPECIAL COUNSEL
SYSTEM IS THE TRADITIONAL APPROACH THAT IS USED WHEN THERE
IS A CONFLICT OF INTEREST IN THE EXECUTIVE BRANCH. THAT IS
TRADITIONAL AND I SAID THAT AGAIN IN THE PHH
CASE. >>AND IS SPECIAL COUNSEL
FIREABLE AT WILL OR ONLY FOR CAUSE?>>THAT IS THE HYPOTHETICAL THAT
YOU WERE ASKING ME AND I THINK THAT WHAT THAT DEPENDS ON IS IS
THERE SOME KIND OF RESTRICTION ON FOR CAUSE PROTECTION THAT IS
PERMISSIBLE THAT IS DIFFERENT FROM THE OLD INDEPENDENT COUNSEL
AND THAT IS THE KIND OF OPEN QUESTION, GRAY AREA, YOU WOULD
WANT TO HEAR THE BREEZE, GET THE ORAL ARGUMENT AND KEEP AN OPEN
MIND. WHAT IS THE SPECIFIC STATUTE? THE OLD INDEPENDENT
COUNSEL HAD A LOT OF MOVING PARTS ALL OF WHICH WERE NORMAL
AND TOGETHER PRODUCE THE DISSENT. NO ONE ASPECT.
>>GIVEN YOUR ENTHUSIASM FOR THE DISSENT AND YOUR CHOICE I WOULD
PUT THE FINAL NAIL IN LET ME GO BACK TO THAT. WOULD YOU VOTE TO OVERTURN
MORRISON QUACK >>I’M NOT GOING TO SAY MORE
THAN WHAT I SAID BEFORE.>>I THINK YOUR ENTHUSIASM FOR
OVERTURNING IT IS UNMISTAKABLE. I WANT TO REPEAT TWO THINGS THAT
ARE IMPORTANT. THE EXECUTOR IS THE PRECEDENT THAT STANDS AND I
HAVE CALLED IT AN ENTRENCHED PRECEDENT AND TWO THE SPECIAL
COUNSEL SYSTEM WAS A PHH DECISION RECENTLY AND IN THE OLD
GEORGETOWN LAW JOURNAL I SAID THAT THAT IS THE TRADITIONAL WAY THAT
CRIMINAL INVESTIGATIONS PROCEED WHEN THERE IS A CONFLICT OF
INTEREST AND THE USUAL PROCESS. >>HUMPHREY EXECUTOR HAS BEEN SETTLED LAW FOR 83 YEARS AND
EARLY ON YOU SAID YOU WOULD BE WILLING TO OFFER VIEWS ON LONG
SETTLED CASES. CAN YOU TELL ME IF HUMPHREY EXECUTOR WAS
CORRECTLY DECIDED? A KEY DIFFERENCE AND I AM STRUCK ABOUT THIS
FRANKLY A LITTLE CONCERNED BECAUSE IN YOUR OWN OPINION IN
YOUR DISSENT YOU LAID OUT A VERY STRONG
ARTICULATION OF THIS UNITARY EXECUTIVE THEORY, THIS THEORY
THAT THE PRESIDENT HAS ALL THE POWER OF THE EXECUTIVE BRANCH
WHICH IS THE CORE OF THAT WHICH IS A RADICAL
THEORY THAT HAS BEEN REJECTED BY THE SUPREME COURT AND YOU GO ON
TO SAY HUMPHREY EXECUTOR IS LONG SETTLED AND IF WE WERE TO
OVERTURN IT IT WOULD NOT MEAN THE ELIMINATION OF THAT WHY DID
YOU NEED TO GO THERE .
>>WHAT I SAID IN THE PHH CASE IS THAT I HAVE APPLIED THAT DOZENS OF
TIMES AND REFERRED TO IT THAT WAY. WHAT CONCERNS ME
CONSTITUTIONALLY AS A JUDGE IN THE CASE WAS THAT THE DID NOT
FOLLOW THE TRADITIONAL MODEL OF INDEPENDENT AGENCIES AND
THEREFORE DEPARTED FROM THIS TRADITIONAL EXCEPTION TO THE
IDEA THAT A SINGLE PRESIDENT CONTROLS THE EXECUTIVE BRANCH
AND I EXPLAINED ALL THAT THAT HAVING ONE HEAD OF AN
INDEPENDENT AGENCY DIMINISHED PRESIDENTIAL AUTHORITY MORE THAN
HUMPHREY’S EXECUTOR AND POSED A SERIOUS THREAT TO INDIVIDUAL
DOCUMENT INDIVIDUAL LIBERTY AND WAS A SEPARATION FROM TYPICAL
PRACTICE WHICH MAKES A BIG DIFFERENCE AND I REFERRED AND
THAT IS WHY I CONCLUDED THAT THE BUREAU WAS UNCONSTITUTIONALLY STRUCTURED.
THE REMEDY WAS NOT TO GET RID OF THE WHOLE AGENCY IT WAS TO MAKE
THE PERSON REMOVABLE AT WILL.>> HUMPHREY’S EXECUTOR WAS
ABOUT WHETHER OR NOT THE HEAD OF THE FTC COULD BE REMOVABLE AT WILL
OR HAVE A GOOD CAUSE REMOVAL PROTECTION?
>>PRESIDENT ROOSEVELT WANTED TO FIRE HUMPHREY-
>>WOULD YOU STATE THAT IT IS WELL REASONED AND WELL DECIDED?
>>IT IS AN IMPORTANT PRESIDENT — PRECEDENT –
>> IT IS TROUBLING TO ME THAT YOU CANNOT SAY THAT HUMPHREY’S
EXECUTOR WAS WELL DECIDED .>>I WILL FOLLOW THE-
>>VERSUS MADISON. >>OF COURSE. OF COURSE IT IS,
THE CONCEPT OF JUDICIAL REVIEW WASN’T INVENTED IN MULBERRY
VERSUS MADISON. WE MISTAKENLY SAY AND THE REASON I’M HESITATING-
>>LET ME BRING THIS BACK TO THE CURRENT CONTEXT AND WHY THIS IS
OF CONCERN. >>I DIDN’T FINISH MY ANSWER.
>>WE HAVE RECENT COMMENTS ABOUT OVERTURNING MORRISON AND
YOU ARE NOT GOING TO COMMENT ON THAT HERE. YOU HAVE A RECENT
DECISION AS A JUDGE WERE YOU FORCEFULLY ARTICULATE THE THEORY THAT WOULD
GIVE THE PRESIDENT SIGNIFICANTLY MORE POWER AND IF HUMPHREY’S EXECUTOR IS AT ANY
RISK WE MIGHT SEE A SERIES OF AGENCIES MOVED OR
LONG-ESTABLISHED PROTECTIONS FROM AT-WILL REMOVAL AT SOME
RISK. LET ME MAKE SURE I GET THIS RIGHT. IN YOUR VIEW CAN
CONGRESS RESTRICT THE REMOVAL OF ANY OFFICIAL WITH AN EXECUTIVE
BRANCH QUACK >>UNDER THE SUPREME COURT
PRECEDENT WHICH I HAVE APPLIED MANY TIMES , CONGRESS, HISTORICALLY HAS
RESTRICTED THE REMOVAL OF INDEPENDENT AGENCY HEADS AND
THAT IS LAW THAT HAS BEEN IN PLACE FOR A LONG TIME.
>>YOU MIGHT DISAGREE. THE REASON I THINK JUSTICE KAGAN
FELT FREE TO TALK FREELY ABOUT THAT IS THAT IT SEEMED A ONE OFF
CASE ABOUT A STATUTE THAT DOESN’T EXIST AND THAT HUMPHREYS
IS THE PRESIDENT AND YOU MAY DISAGREE WITH ME ON
THAT, BUT I THINK THAT IS THE PREMISE ON WHICH SHE SPOKE. THAT
IS CERTAINLY THE PREMISE ON WHICH I SPOKE AND I WAS NOT
INTENDING TO DO EITHER OF TWO THINGS I WAS NOT INTENDING TO
SAY ANYTHING ABOUT HUMPHREYS OR TRADITIONAL SPECIAL COUNCILS
WHICH I HAVE EXPLICITLY DISTINGUISHED OVER THE YEARS.
>>I AM CONCERNED THAT I AM HAVING DIFFICULTY
GETTING WHAT I THINK IS A CLEAR AND DECISIVE ANSWER FROM YOU ON
A NUMBER OF THINGS WHICH YOU OVERTURN MORRISON AND WHAT IS
YOUR VIEW OF EXECUTIVE THEORY, IS IT APPROPRIATE FOR PRESIDENT
TO FIRE A SPECIAL COUNSEL INVESTIGATING HIM. I WILL COME
BACK TO A DECISION YOU RENDERED THIS YEAR AND I URGE THOSE WITH
ANY INTEREST TO READ YOUR DECISION IN THIS CASE. YOU
LAYOUT, YOU EMBRACE THIS THEORY OF THE EXECUTIVE THAT THE
EXECUTIVE HAS ALL THE POWER OF THE EXECUTIVE BRANCH WHICH I
THINK IS DIRECTLY RELEVANT TO THE QUESTION WHETHER SPECIAL
PROSECUTOR SHOULD BE FIREABLE AT WILL BY THE PRESIDENT OR COULD
BE PROTECTED FROM BEING FIRED BY THE WHIM OF THE PRESIDENT. THIS
IS A THEORY THAT WAS REJECTED NOT JUST BY THE SUPREME COURT,
MORRISON V. OLSON, BUT I MEMBERS OF THIS COMMITTEE A
BIPARTISAN VOTE. ADVANCING A BILL PREDICATED ON CONGRESS IMPOSING RESTRICTIONS
ON THE EXECUTIVE POWER TO FIRE AT WILL EXECUTIVE BRANCH JUNIOR
OFFICERS. >>WITH RESPECT, I THINK YOU ARE
OVER READING WHAT I WROTE I DID NOT IN ANY WAY SAY THAT THE
TRADITIONAL INDEPENDENT AGENCIES ARE IN ANY WAY PROBLEMATIC AND I
TOOK THAT AS THE BASELINE ON WHICH I SAID THAT THE NEW AGENCY DEPARTED
FROM THAT TRADITIONAL MODEL AND I DID NOT CAST DOUBT ON
HUMPHREYS IN THAT CASE AT LEAST AS I READ IT. I GUESS YOU DON’T
AGREE WITH THE OPINION, BUT I EXPLAINED IN GREAT DETAIL WHY I
THOUGHT THIS DEVIATION FROM HUMPHREYS MATTERED.
>>LET’S GET IN A FEW MINUTES I HAVE LEFT TO THE QUESTION OF
INVESTIGATION BECAUSE THIS IS ALSO SOMETHING
YOU HAVE WRITTEN ABOUT AND SPOKEN ABOUT AND IT IS RELATED,
I THINK, TO THIS ISSUE. BACK ON A PANEL IN 1998 YOU SAID “IT
MAKES NO SENSE AT ALL TO HAVE AN INDEPENDENT COUNSEL
INVESTIGATING CONDUCT THE PRESIDENT. IF THE PRESIDENT WERE
THE SOLE SUBJECT I WOULD SAY NO ONE SHOULD BE INVESTIGATING
THEM.” IS THAT STILL YOUR VIEW THAT IF THERE IS CREDIBLE
EVIDENCE THAT A PRESIDENT COMMITTEE RHYMES NO ONE SHOULD
INVESTIGATE?>>THAT IS NOT WHAT I SAID SO
TWO THINGS ON THAT. THE INDEPENDENT COUNSEL YOU ARE
REFERRING TO THEIR IT IS IMPORTANT BECAUSE PEOPLE FORGET
THAT IT IS DISTINCT FROM THE SPECIAL COUNSEL SO IT IS
IMPORTANT SPECIFICALLY IN THAT JOURNAL APPROVED OF THE
TRADITIONAL SPECIAL COUNSEL SYSTEM .
>>THAT SYSTEM HAS A SPECIAL COUNSEL THAT CAN BE FIRED AT
WILL BY THE PRESIDENT, CORRECT TEXT
>>IN THE WATERGATE SITUATION THERE IS A WATERGATE THAT WAS PROTECTING THE SPECIAL COUNSEL.
>>WHAT HAPPENED? >>THERE IS A NEW REGULATION PUT
IN PLACE AS YOU KNOW AND UNITED STATES VERSUS RICHARD NIXON THAT
WAS PARSED CAREFULLY AND MORE
GENERALLY- >>THIS IS WHY YOUR QUOTE THAT
THE INDEPENDENT COUNSEL WAS A POST WATERGATE REFORM GAVE ME
SOME- >>THAT WAS THE STATUTE PUT IN
WELL AFTER WATERGATE AND WATERGATE ITSELF THE SYSTEM IN
PLACE WAS THE TRADITIONAL SPECIAL COUNSEL WITH A NEW
REGULATION PUT IN THERE FOR THE EPISODE YOU ARE REFERRING TO AND
WHEN THE INDEPENDENT COUNSEL CAME UP IN 1999 FOR
REAUTHORIZATION EVERYONE HERE, EVERYONE AGREED, I THINK I AM
NOT EXAGGERATING TO SAY THAT THE QUOTE YOU PUT UP FOR THAT ONE
WAS UNDERSTATING WHAT EVERYONE HERE SAID ABOUT THE INDEPENDENT
COUNSEL.>>IN A 1999 ARTICLE I THINK
THIS IS THE AMERICAN SPECTATOR ARTICLE. YOU CALLED IT CONSTITUTIONALLY DUBIOUS FOR A
CRIMINAL PROSECUTOR TO HAVE THE RESPONSIBILITY TO INVESTIGATE
THE PRESIDENT. HELP ME UNDERSTAND. IS THAT STILL YOUR
VIEW? IS THAT STILL YOUR VIEW THAT IT IS CONSTITUTIONALLY
DUBIOUS FOR A PROSECUTOR TO INVESTIGATE THE PRESIDENT QUACK
>>I HAVE NEVER TAKEN A POSITION ON THE CONSTITUTIONALITY. ALL I
HAVE DONE IS POINTED OUT AS I DID IN THE MINNESOTA LAW REVIEW
ARTICLE THAT CONGRESS MIGHT WANT TO CONSIDER THE BALANCE AND THAT
IS WHEN PRESIDENT OBAMA WAS IN OFFICE.
>>THIS IS JUST A POLICY ARGUMENT.
>>IF I HAVE A CONSTITUTIONAL CASE COME BEFORE ME ON THE D.C.
CIRCUIT OR IF CONFIRMED I WILL HAVE AN OPEN MIND AND
LISTEN TO THE ARGUMENTS I HAVE SEEN ALL SIDES OF THIS. I WILL
HAVE A COMPLETELY OPEN MIND ON THE CONSTITUTIONAL ISSUE AND
BRIEFS AND ARGUMENTS, I’VE ALSO SHOWN A CAPACITY IF I AM
PRESENTED WITH A BETTER ARGUMENT THAN SOMETHING I HAVE HAD BEFORE TO ADOPT A BETTER ARGUMENT. I
HAVE CERTAINLY DONE THAT A GOOD EXAMPLE IN THE NATIONAL SECURITY
CONTEXT AND IN THE FIRST CASE I POINTED OUT HOW I RECONSIDERED
SOMETHING I HAD WRITTEN BEFORE IN A NATIONAL SECURITY CONTEXT.
THE LARGER POINT IS THAT I HAVE NOT TAKEN A POSITION ON
CONSTITUTIONALITY BEFORE.>>I WILL COME BACK TO A POINT
WE HAVE NOW TALKED ABOUT SEVERAL TIMES. IN SEVERAL DIFFERENT
CONTEXTS IN SEVERAL DIFFERENT WAYS YOU HAVE CHOSEN TO MAKE A
CONSTITUTIONAL POINT, EITHER EXPRESSING ENTHUSIASM FOR
OVERTHROWING MORRISON V. OLSON OR ARGUING FOR THE THEORY THAT
THE DISSENT OR IN A DIFFERENT 2016 SPEECH YOU SAID JUSTICE
SCALIA NEVER WROTE A BETTER DISSENT THAN ON MORRISON V.
OLSON AND YOU WENT ON TO SAY YOU BELIEVE HIS VIEWS WERE 1D —
ONE DAY BE THE LAW OF THE LAND. I ASSUME YOU ARE TALKING ABOUT
THE ANALYSIS IN THE DISSENT AND YOU ARE EXPRESSING A HOPE AND
EXPECTATION THAT IT WILL SOMEDAY BE THE LAY OF THE LAND. YOU SIT
BEFORE ME WHERE THAT COULD BE IN YOUR REACH.
>>I WANT TO AVOID MELDING A LOT OF
DIFFERENT THINGS INTO ONE BECAUSE THEY ARE VERY IMPORTANT
TO KEEP DISTINCT. VERY IMPORTANT. THE FIRST IS THE
INDEPENDENT COUNSEL STATUTE AND I VIEW MORRISON ONLY ABOUT THAT
AND I REALIZE YOU MAY HAVE A DIFFERENT VIEW ON THAT. IF IT IS
ONLY ABOUT INDEPENDENT COUNSEL STATUTE THAT DOESN’T EXIST
ANYMORE AND THAT IS WHY JUSTICE KAGAN FELT
FREE TO COMMENT ABOUT MORRISON AS WELL AND ON SPECIAL COUNSEL I
HAVE SAID WHAT I HAVE REPEATED MANY TIMES ON INVESTIGATION AND INDICTMENT OF A SITTING
PRESIDENT, NUMBER ONE, I HAVE NEVER TAKEN A POSITION AND IT IS
IMPORTANT TO UNDERSCORE THE JUSTICE DEPARTMENT FOR 45 YEARS,
THIS IS THE JUSTICE DEPARTMENT, NOT ME. THEY HAVE TAKEN THE
OPINION THAT A PRESIDENT MAY NOT BE
INDICTED WHILE IN OFFICE IT HAS TO BE DEFERRED. RANDY MOSS WROTE
A VERY LONG OPINION ON THAT AND HE IS NOW PRESIDENT OBAMA
APPOINTED DISTRICT JUDGE AND EXCELLENT DISTRICT JUDGE.
I’M NOT SAYING I AGREE OR DISAGREE, I AM SAYING THAT IS
THE CONSISTENT JUSTICE DEPARTMENT VIEW FOR 45 YEARS SO
BEFORE A CASE LIKE THIS WOULD BECOME — WOULD COME BEFORE THE
COURT THE JUSTICE DEPARTMENT PRESUMABLY WOULD HAVE TO CHANGE
THEIR POSITION AND A PROSECUTOR AT SOME POINT IN THE FUTURE
WOULD HAVE TO DECIDE TO SEEK AN INDICTMENT OF A SITTING
PRESIDENT AT SOME POINT AND THEY WOULD HAVE TO BE CHALLENGED IN
COURT AND ALL THE BRIEFS AND ARGUMENTS AND IT WOULD COME UP
ON APPEAL TO ME. THERE ARE A LOT OF THINGS THAT WOULD HAVE TO
HAPPEN BEFORE THIS HYPOTHETICAL THAT YOU ARE PRESENTING EVEN
COMES TO PASS AND IF IT DOES YOU CAN BE ASSURED THAT I HAVE NOT
TAKEN A POSITION ON THE CONSTITUTIONAL ISSUE THAT YOU
ARE RAISING ON THAT SPECIFIC QUESTION AT LEAST AS I
UNDERSTAND THE WESTERN. THAT IS DISTINCT FROM THE MORRISON
ISSUE.>>I WILL TELL YOU AGAIN, THE
REASON THIS HAS BEEN GREATLY CONCERNING TO ME THE REASON I
RAISED IT AND SENT YOU A LETTER ABOUT IT IS I REALLY DON’T VIEW
THE ISSUE IN THE INDEPENDENT COUNSEL STATUTE AND THE MORRISON
V. OLSON IS DEALING WITH SOME LONG PAST STATUTE AND SKEWER
AND NOT RELEVANT ISSUE. I THINK THE REASON YOU REACHED OUT AND
VOLUNTEERED THAT YOU WOULD LOVE TO OVERTURN MORRISON V. OLSON IS
NOT BECAUSE 23 — JUSTICE SCALIA WROTE A
DISSENT IT IS THE VIEW OF THE EXECUTIVE BRANCH HAVING ALL THE
POWER OF THE EXECUTIVE BRANCH IN THE HANDS OF THE PRESIDENT
THAT YOU HAVE ARTICULATED ACROSS SPEECHES, INTERVIEWS, WRITINGS
AND AND OPINION THIS YEAR. I THINK THAT IS YOUR VIEW.
>>I HAVE NEVER SAID THAT. I NEVER SAID THAT SO THERE ARE TWO
ISSUES AND I WANT TO BE VERY CLEAR SO PEOPLE UNDERSTAND.
>>THIS IS HOW I READ IT THIS YEAR IS ARGUING, ADVANCING A
UNITARY EXECUTIVE THEORY.>>I REFUTE — I –
>>THAT MEANS THE PRESIDENT IS THE CHIEF LAW ENFORCEMENT
OFFICER AND IT SHOULD HAVE ALL THE POWER OF THE EXECUTIVE
BRANCH INCLUDING THE ABILITY TO FIRE AT WILL . THE ABILITY TO FIRE AT WILL A
SPECIAL PROSECUTOR, CORRECT?>>I HAVE TAKEN AS A GIVEN-
>>THAT IS A YES OR NO. >>I WANT TO BE REAL CLEAR AND I
WILL REPEAT MYSELF FOR THE 10th TIME. I HAVE SAID HUMPHREY’S EXECUTOR IS THE
PRECEDENT THAT ALLOWS AGENCIES THAT I HAVE APPLIED TIME AFTER
TIME AND I HAVE SPECIFICALLY SAID WHAT I HAVE SAID ABOUT
SPECIAL COUNSEL SYSTEMS IN THE TRADITIONAL MECHANISM , NUMBER THREE I HAVE NEVER
TAKEN A POSITION ON THE CONSTITUTIONALITY OF INDICTING
OR INVESTIGATING SITTING PRESIDENTS AND NUMBER FOR THE
QUESTION OF WHO CONTROLS THE EXECUTIVE BRANCH-
>>ON THAT POINT THAT YOU HAVE NEVER TAKEN A POSITION ON THE
CONSTITUTIONALITY OF INVESTIGATING A PRESIDENT . IT WAS AN AMERICAN SPECTATOR
ARTICLE WHERE YOU SAID IF THERE IS AN ALLEGATION OF PRESIDENTIAL
WRONGDOING A CONGRESSIONAL INQUIRY TO TAKE PRECEDENCE OVER
THE CRIMINAL INVESTIGATION INCLUDING AN INVESTIGATION OF
ANY PRESIDENTIAL ASSOCIATE. THIS ARTICLE WAS STRIKING TO ME
THIS ONE IN WHICH YOU SAID IT WAS CONSTITUTIONALLY DUBIOUS FOR
A CRIMINAL PROSECUTOR TO INVESTIGATE A PRESIDENT BECAUSE
YOU SUGGESTED NOT JUST THE PRESIDENT SHOULD NOT BE
CRIMINALLY INVESTIGATED DURING HIS TERM, BUT THAT EVEN HIS
ASSOCIATES SHOULD NOT BE HELD ACCOUNTABLE THROUGH THE CRIMINAL
JUSTICE SYSTEM. YOU MENTION YOU MIGHT MAKE AN EXCEPTION FOR
VIOLENT CRIME. THAT IS THE LAST QUESTION IS WHAT IF A
PRESIDENTIAL AIDE COMMITS AN ASSAULT AND DOMESTIC VIOLENCE.
>>I NEVER SAID ANYTHING LIKE THAT.
>>I WILL LET YOU ANSWER THAT.>>I HAVE NOT SAID ANYTHING
APPROACHING WHAT YOUR BROAD DESCRIPTION . THERE HAS ALWAYS BEEN A
QUESTION BASED ON THE JUSTICE DEPARTMENT OWN POSITION FOR THE
LAST 45 YEARS. THEIR POSITION ASSUMES THAT THE PROPER THING TO
DO IS TO WAIT FOR INDICTMENT AND THAT OCCURS AFTER A PRESIDENT
LEAVES OFFICE WHETHER THAT IS BECAUSE THE TERM IN OR BECAUSE
OF THE IMPEACHMENT PROCESS AND THAT IS HOW THE JUSTICE
DEPARTMENT, AGAIN FOR 45 YEARS THAT HAS BEEN THE LAW AND IT IS
NOT MY LONG. THAT IS THE JUSTICE DEPARTMENT’S ALL WITH RANDY MOSS
WRITING THE MOST IMPORTANT.>>I WOULD LIKE TO CONCLUDE
BRIEFLY. I LOOK FORWARD TO CONTINUING THIS LINE OF
DISCUSSION WITH YOU IN THE NEXT ROUND AND I DO THINK THAT THERE IS GOOD REASON FOR
MEMBERS OF THIS COMMITTEE, MYSELF PRINCIPALLY, TO BE
CONCERNED ABOUT A RANGE OF THINGS THAT YOU HAVE SAID AND
WRITTEN AND THAT YOU HAVE DECIDED AS A JUDGE ABOUT WHETHER
OR NOT A PRESIDENT CAN BE HELD ACCOUNTABLE. I THINK TO CONDUCT AN
INDEPENDENT INVESTIGATION IS FOUNDATIONAL TO THE RULE OF LAW.
>>I HAVE SAID THE SAME THING. I HAVE SAID THE EXACT SAME THING.
>>FRANKLY, YOUR VIEWS ABOUT EXECUTIVE POWER AS I THINK YOU
HAVE DETAILED AND WHAT YOU SAID YOU WOULD LIKE TO OVERTURN AND
THE LIMITS LEAVES ME CONCERNED AND IT IS BECAUSE OF THE CURRENT
CONTEXT BECAUSE OF THE ENVIRONMENT WE ARE OPERATING IN
AND I LOOK FORWARD TO ANOTHER ROUND AND MORE LESSONS.>>JUST TO REITERATE WHAT YOU
SAID ABOUT SPECIAL COUNSEL IS EXACTLY WHAT MY ARTICLE SAID IN
99 AND EXACTLY WHAT PHH SAID. >>BEFORE I CALL ON SENATOR
SASSE INDEPENDENT STATUE AND MORRISON THAT WAS NEVER RENEWED
AND DOES NOT HAVE ANY EFFECT TODAY AND WE IN CONGRESS CHOSE
NOT TO RENEW IT BECAUSE IT WAS NEARLY UNIVERSALLY CONDEMNED. I
OFTEN QUOTE SENATOR DURBIN ABOUT INDEPENDENT CONSULTS ON CHECK,
UNBRIDLED, UNACCOUNTABLE ACCORDING TO HIM UNCHECKED POWER
IS TYRANNY. WE HAD ERIC HOLDER SAID THE LAW WAS TOO FLAWED TO
BE RENEWED. ALSO I WANT TO INSERT IN THE RECORD 30 BEDS
FROM ALL ACROSS THE COUNTRY THAT SUPPORT THE CONFIRMATION OF JUDGE 15. THE EDITORIAL BOARDS
OF THE LOS ANGELES TIMES, THE CHICAGO TRIBUNE, THE WALL STREET
JOURNAL AMONG THOSE 30 SUPPORTING CONFIRMATION WITHOUT OBJECTION. I WILL ENTER
THOSE IN THE RECORD ALL 30 OF THESE.
>>MR. CHAIRMAN, THERE FOUR
DOCUMENTS THAT I WOULD WANTED TO BE ABLE TO QUESTION OUR
WITNESS ABOUT OUR NOMINEE, I WOULD LIKE TO SUBMIT THOSE. THEY
REVEAL HIS THINKING. >>DO THAT AND I CAN ADVOCATE
THAT YOU GET THEM AND WE WILL PUT INTO IT JUST LIKE WE SAID TO
SENATOR LEAHY, GIVE US THE CITATION AND SO FAR WE HAVE BEEN
VERY FORTUNATE.>>JUDGE, BY MY COUNT YOU ARE ABOUT
HALF DONE. CONGRATULATIONS. YOU WILL BE HERE PAST MIDNIGHT. I
ALSO WANT TO TALK ABOUT LIMITED GOVERNMENT IN GENERAL AND ABOUT
LIMITS ON EXECUTIVE POWER IN PARTICULAR. TODAY HAS BEEN,
SENATOR CRUZ DID A NICE JOB COMPLEMENTING CAPITAL POLICE AND
IT HAS BEEN A TOUGH ENVIRONMENT TO MANAGE AND WE ARE GLAD PEOPLE
GET A RIGHT TO EXPRESS THEIR VIEWS. JUST A FEW MINUTES AGO A WOMAN
SHOUTING PLEASE NOTE NO, PRESIDENT SHOULDN’T HAVE THE
POWER TO DO WHATEVER THEY WANT, NO WAS ONE OF THE LOUDEST SHOUTS HE WILL BE A TRUMPET PUPPET. A
SEPARATE ONE HE WILL SUPPORT PRESIDENTIAL CRIMINALITY AND
EXECUTIVE IMMUNITY HAS NO PLACE IN A DEMOCRACY. I THINK, I WANT
TO EMPATHIZE WITH CONCERNS THAT PEOPLE HAVE ABOUT THOSE KINDS OF
STATEMENTS AND IF I THOUGHT THAT YOU WOULD BE A PUPPET FOR THIS
OR ANY PRESIDENT IF YOU WOULD SUPPORT PRESIDENTIAL
CRIMINALITY, IF YOU BELIEVE THAT EXECUTIVE IMMUNITY IS SOMETHING THAT IS FITTING FOR THE SYSTEM
OR IF YOU BELIEVE THE PRESIDENT SHOULD HAVE THE POWER TO DO
WHATEVER THEY WANTED, I COULD VOTE FOR YOU EITHER SO I AM
HEADED TOWARD VOTING FOR YOU BECAUSE I DON’T BELIEVE THOSE
THINGS ARE TRUE AND I THINK THE AMERICAN PEOPLE NEED TO
UNDERSTAND WHY NOT. ALREADY TODAY YOU CITED THE FEDERALIST
PAPERS AND SAID THE PRESIDENCY IS NOT A MONARCHY. IT WOULD BE
USEFUL TO BACK IT UP AND AS A NONLAWYER MANY TIMES WE GOT LOST
IN THE WEEDS NOT CRITICAL OF HIS QUESTIONING.
I WOULD LIKE TO HAVE IT AS A HIGH SCHOOL SOPHOMORE LEVEL FOR
A LITTLE WHILE. IF YOU WOULD EXPLAIN THE LIMITS ON EXECUTIVE
POWER, WHAT ARE THEY?>>I START WITH THE FACT THAT
THE PRESIDENT IS ELECTED THROUGH THE ELECTORAL PROCESS SPECIFIED
IN THE CONSTITUTION THE PRESIDENT NOT A LIMITED TERM AGAIN SPECIFIED IN FEDERALIST 69, THE
PRESIDENT IS SUBJECT TO THE LAW, NO ONE IS ABOVE THE LAW IN THE
UNITED STATES AND LOOTING THE PRESIDENT OF THE UNITED STATES
AND THAT IS SOMETHING THAT IS MADE CLEAR IN FEDERALIST 69. A
PRESIDENT DOES NOT HAVE MAKE THE LAWS BECAUSE CONGRESS
MAKES THE LAW. THE PRESIDENT DOESN’T HAVE THE POWER TO
ADJUDICATE DISPUTES. AS JUSTICE JACKSON’S FRAMEWORK
MADE CLEAR IT IS IMPORTANT TO UNDERSTAND EVEN IN THE NATIONAL
SECURITY CONTEXT WHERE THE CONSTITUTION GIVES THE
COMMANDER-IN-CHIEF POWER TO THE PRESIDENT THE PRESIDENT REMAINS
SUBJECT TO THE LAW, BUT THE CONSTITUTION AND THE LAWS PASSED
BY CONGRESS . FOR EXAMPLE, AS I SAID IN
WRITINGS AND MY REVIEW OF THE BOOK AND SOME OF MY CASES,
CONGRESS HAS SUBSTANTIAL POWER, SUBSTANTIAL POWER IN THE WAR
POWERS ARENA TO DECLARE WAR, AUTHORIZE
WAR AND TO REGULATE THE WAR EFFORT AND CONGRESS HAS DONE SO
INCLUDING POST-SEPTEMBER 11 ON ISSUES SUCH AS INTERROGATION,
DETENTION, MILITARY COMMISSIONS , SURVEILLANCE, CONGRESS HAS
BEEN ACTIVELY INVOLVED IN THOSE AREAS HISTORICALLY AND THROUGH
POST-SEPTEMBER 11 AND I HAVE MADE CLEAR IN MY WRITINGS THAT
THE PRESIDENT HAS LIMITED POWER IN YOUNGSTOWN CATEGORY THREE TO
DISREGARD SUCH A LAW. OR PRACTICE THE HISTORICAL EXAMPLE IS COMMAND OF TROOPS IN BATTLE
FOR EXAMPLE THAT CONGRESS COULDN’T GET IN THE MIDDLE OF
THAT AND OUTSIDE EXAMPLES LIKE THAT NARROW EXAMPLES, CONGRESS
REGULATES CAN REGULATE THE WAR EFFORT.
CONGRESS OFTEN CHOOSES TO GIVE THE EXECUTIVE BRANCH RAW
DISCRETION ON NATIONAL SECURITY AND SOMETIMES NOT BECAUSE THE
CONGRESS DOESN’T LIKE WHAT THE EXECUTIVE HAS DONE. WE ARE
USUALLY VERY REACTIVE AND CONGRESS WOULD SAY WE DON’T WANT
THAT TO HAPPEN AGAIN IN THAT CONTEXT AND JUSTICE JACKSON SETS
FORTH THAT FRAMEWORK AND THAT IS A VERY CRITICAL PART BECAUSE
WHERE ELSE WOULD WE EXPECT THE EXECUTIVE TO EXERCISE UNILATERAL
POWER AND ALSO AT THE SAME TIME WHAT ELSE IS A GREATER TIME A
THREAT TO LIBERTY AND THE NATIONAL SECURITY CONTEXT
YOUNGSTOWN STEEL BEING THE CLASSIC EXAMPLE WHEN THE
PRESIDENT SAID WE ARE TRYING TO WIN WAR SO I CAN-GIVEN THE
STATUTES CONGRESS HAS PASSED. A PRESIDENT REMAINS SUBJECT TO
THE SUPREME COURT SAID IN THE CLINTON VERSUS JONES CASE, CIVIL
PROCESS SO THAT IS CIVIL SUITS WHILE IN OFFICE AND SO TO THE
CRIMINAL PROCESS SPECIFIES THIS A PRESIDENT IS NOT ABOVE THE LAW
WITH RESPECT TO THE CRIMINAL PROCESS. THE ONLY QUESTION THAT
THE JUSTICE DEPARTMENT -IS THE TIMING OF THE INDICTED
ABILITY QUESTION AND THE JUSTICE DEPARTMENT THROUGH DEMOCRATIC
AND REPUBLICAN ADMINISTRATIONS FOR 45 YEARS HAS SAID THAT
SHOULD OCCUR BECAUSE THE TERMS EXPIRE OR BECAUSE OF THE IMPEACHMENT
PROCESS. >>LET ME INTERRUPT AND I WILL
COME BACK. I THINK YOU ARE BUILDING A LIST THAT HAS
DURATION AND TIME OF THE OFFICE OF THE PRESIDENCY AND
AUTHORITIES THAT THEY MAY OR MAY NOT HAVE GIVEN TO THE EXECUTIVE
BRANCH. I ADMIT THAT I AM AS A NONLAWYER I FOLLOW A TRADITION OF BEING A
NONLAWYER ON THE COMMITTEE AND I KNOW A LOT OF BIG LEGAL BRAINS
TOLD ME IF I ASK ANY HYPOTHETICAL YOU WILL RUN
CIRCLES AROUND ME AND I WANT TO TRY THE START OF A HYPOTHETICAL.
IMAGINE 10 YEARS IN THE FUTURE AND THERE IS A PRESIDENT FROM
THE PURPLE PARTY SO IT IS NONE OF THE CURRENT PARTICIPANTS IN
PUBLIC LIFE AND NONE OF THESE AND THIS PRESIDENT RAN FOR
OFFICE WITH AN INSTINCT TO DEMONSTRATE SELF-RELIANCE AND
THEY DECIDE THEY WON’T BE A PART OF ANY MOTORCADE, THEY WILL
DRIVE THEMSELVES AND THEY ARE DRUNK ONE NIGHT AND THERE IS A
HOMICIDE. LET’S BUILD A CRIMINAL AND A
CIVIL MATTER. IS THE PRESIDENT IMMUNE FROM BEING SUED OR BEING CHARGED WITH A CRIME
BECAUSE THEY ARE THE PRESIDENT CLICKS BUCKET KNOW, NO ONE HAS
EVER SAID, I DON’T THINK THAT THE PRESIDENT IS FROM CIVIL OR
CRIMINAL PROCESS. IMMUNITY IS THE WRONG TERM TO EVEN THINK
ABOUT IT THIS PROCESS. THE ONLY QUESTION THAT HAS EVER BEEN
DEBATED IS WHETHER THE ACTUAL PROCESS SHOULD OCCUR WHILE STILL
IN OFFICE . SUPREME COURT DECIDED THE CIVIL
PROCESS COULD GO FORWARD AGAINST PRESIDENT CLINTON AND HE WAS
ARGUING THE CIVIL PROCESS SHOULD BE REFERRED UNTIL AFTER HE LEFT
OFFICE. THE SUPREME COURT REJECTED THAT. THE ONLY QUESTION
WITH THE CRIMINAL PROCESS IS NOT IMMUNITY, THAT IS THE WRONG TERM
IS THE TIMING AND AS I SAID THE JUSTICE DEPARTMENT FOR 45 YEARS
HAS TAKEN THE POSITION THAT THE TIMING OF THE CRIMINAL PROCESS
SHOULD BE AFTER THE PRESIDENT LEAVES OFFICE.
THAT DOESN’T PREVENT INVESTIGATIONS GATHERING OF
EVIDENCE, QUESTIONING OF WITNESSES I WOULDN’T THINK
NECESSARILY, THAT IS CERTAINLY HOW IT IS
PRECEDED UNDER THE SPECIAL COUNSEL SYSTEM THAT WE HAVE HAD
TRADITIONALLY THAT HAS COEXISTED WITH THE JUSTICE DEPARTMENT ON
THE ULTIMATE TIMING QUESTION SO THESE ARE TIMING QUESTIONS AND
IMMUNITY IS NOT THE CORRECT WORD AND I DON’T THINK ANYONE THINKS
SO. THAT IS A FOUNDATIONAL PRINCIPLE
OF THE CONSTITUTION AND EQUAL JUSTICE UNDER LAW AND THAT IS
WHAT HAMILTON WAS CONCERNED ABOUT IN FEDERALIST 69 AND THAT
IS WHAT THE FRAMERS WERE CONCERNED ABOUT. IF YOU READ THE
CONSTITUTIONAL CONVENTION EVEN WITH HAVING A SINGLE PRESIDENT
THEY THOUGHT THAT MIGHT SEEM LIKE A MONARCHY AND THAT IS WHY
HAMILTON FELT THE NEED TO CONVINCE THE PEOPLE THIS IS NOT
A MONARCHY AND HOW DID HE GO ABOUT CONVINCING AND HE WROTE
ALL THE WAYS IT WAS DISTINCT AND SOME OF WHICH I HAVE OUTLINED TO
YOU, APPROPRIATIONS IS ANOTHER ONE. CENTERBURG MET WITH ME AND
MY 2006 PROCESS. HE PULLED OUT HIS CONSTITUTION AND EVERYONE REMEMBERS VERY FOCUSED
ON THE APPROPRIATIONS CLAUSE OF THE CONSTITUTION-
>>AND THEN HE’LL DRIVE THROUGH WEST VIRGINIA TO SHOW YOU. I WANT YOU TO FINISH THAT LIST
AND I WANT TO ASK SOME SPECIFIC QUESTIONS. I THINK YOU HAVE
DURATION OF THE TERM IN OFFICE SPECIFIC AUTHORITIES THAT THE
PRESIDENT MAY OR MAY NOT BE GIVEN APPROPRIATIONS AND
PERSONNEL QUESTIONS. ARE THERE ANY OTHER CATEGORIES CLICKS
THERE IS VERTICAL AND HORIZONTAL. IN MY HYPOTHETICAL THAT COULD HAPPEN IN A DIFFERENT
PLACE AND WE WOULD HAVE TO HAVE DEBATES ABOUT WHICH LEVEL OF
GOVERNMENT WOULD BE INVOLVED. ARE THERE ANY MORE CATEGORIES OF
LIMITATION>>THE HUGEST QUESTION THAT I
HAVE SAID MANY TIMES IN THE ENTIRETY OF CONSTITUTIONAL LAW
IS THE ABILITY UNILATERALLY TO TAKE THE COUNTRY INTO WAR. THAT DWARFS ALL OTHER QUESTIONS
IN MANY WAYS AND HAMILTON MADE CLEAR IN WAS 69 THE ANSWER TO
THAT QUESTION WAS NO. IS SOMETIMES THOUGHT AND OPINED BY
COMMENTATORS OR SCHOLARS THAT THAT HAS CHANGED OVER TIME AND
THAT HAS NOT CHANGED IN PRACTICE . THERE IS NO DEFINITIVE SUPREME
COURT CASE. YOU LOOK AT ALL THE SIGNIFICANT WARS AND I WROTE
THIS IN A BOOK REVIEW WHICH I RECOMMEND. I THINK YOU WOULD
ENJOY THAT.>>THANK YOU FOR CALLING ME A
NERD ON NATIONAL TV.>>I KNOW YOU WOULD ENJOY IT IS
THE ALL THE SIGNIFICANT WARS IN US HISTORY HAVE BEEN
CONGRESSIONALLY AUTHORIZED WITH ONE MAJOR EXCEPTION THE KOREAN
WAR AND THE KOREAN WAR IS AN ANOMALY IN MANY RESPECTS AND
SOME OF THE FACT THAT IT WAS UNDECLARED AND UNAUTHORIZED LED TO THE DECISION, VIETNAM,
THE PERSIAN GULF WAR, AGAINST AL QAEDA THE IRAQ WAR AND GOING
BACK TO WORLD WAR II, WORLD WAR I, THE WAR OF 1812. THEY ARE ALL
CONGRESSIONALLY AUTHORIZING YOU CAN GO BACK THROUGHOUT AND I
SPECIFY THAT. THE WAR POWER, THE POWER TO TAKE A NATION INTO WAR
AT LEAST A SIGNIFICANT ONE THERE ARE SOME QUESTIONS ABOUT
SHORT-TERM AIRSTRIKES. THAT IS THE BIGGEST OF ALL AND THAT IS
SOMETHING THAT HAMILTON AND TALKED ABOUT AND OUR PRACTICE
HAS LIVED UP TO. THAT IS AN ENORMOUS EXCEPTION AND SINCE
THEN THEY HAVE BEEN CONGRESSIONALLY AUTHORIZED.
PEOPLE DEBATED, BUT THE WORDS ARE QUITE BROAD.>>THIS ISN’T THE PLACE FOR THIS
FULL DETOUR, BUT I WANT TO UNDERSCORE SOMETHING YOU SAID
AND MORE BROADLY, HOW MANY TIMES WE SEE THE FOUNDERS WRITING
ABOUT THE NORMS AND ONE OF THE THINGS THAT GO STRONGS IS THAT
WE SO REGULARLY CONFLATE POLICY AND POLITICS WITH CIVICS AND THE
JURISPRUDENCE SHOULD FIT INSIDE THE CIVICS AND NOT THE POLITICS
BECAUSE IT IS THE OVERARCHING THEME. IT IS A CORE MODEL FOR
AMERICA AND WE HAVE A BUNCH AND WE SHOULD HAVE A LOT MORE UNITY
ABOUT WHAT WE THINK THE ROLE OF THE JUDGE IS AND SENATOR CRUZ
DID A NICE JOB UNPACKING HOW OFTEN YOU AND JUDGE GARLAND HAVE
BEEN ON THE SAME SIDE OF THE ISSUE AND YOUR COMMENTS
YESTERDAY ABOUT BEING ON THE TEAM OF NINE AND IT NEEDS TO BE
CROSSED OVER IN THE SUPREME COURT. THAT IS
ANOTHER WAY OF SAYING IF WE ARE DOING CIVICS RIGHT IN AMERICA WE SHOULD SEE FEWER AND FEWER
DISPUTES TRYING TO BE SETTLED AT THE COURT AND IT MEANS WE CAN
ATTEND MORE TO THE NORMS. WHEN THINGS ARE GOING WRONG AND WE
SHOULD ADMIT THINGS ARE A MESS WE HAVE HAD IN THE GOVERNANCE,
THERE IS A LOT ABOUT WHAT IS GREAT RIGHT NOW. IN THE PUBLIC
SQUARE WE AGREE I THINK THAT WE KNOW THAT IS NOT TRUE AND IF YOU
LOOK AT SURVEY DATA OF WHAT HIGH SCHOOL
STUDENTS TURN UP IF THEY TRIED TO TAKE THE IMMIGRATION AND
NATURALIZATION TEST AND HUGE SHARES OF HIGH SCHOOL JUNIORS
DON’T KNOW WE HAVE THREE BRANCHES OF GOVERNMENT. SHAME ON
US THAT THEY DON’T UNDERSTAND THAT BECAUSE WE ARE NOT DOING
THAT. WASHINGTON THOUGHT IT WAS ESSENTIAL THAT WHEN HE WAS
EXPLAINING WHAT THE JOB WAS AND IT NOT BE CONFUSED WITH THE
MONARCHY HE WANTED TO BE CALLED MR. WASHINGTON. HE REBUKED
PEOPLE FOR BOWING BEFORE HIM BECAUSE WE MIGHT CONFUSED OUR
KIDS AND GRANDKIDS THAT IT IS A MONARCHY. ONE OF THE FUNDAMENTAL
PROBLEMS ABOUT NOT UNDERSTANDING EXECUTIVE POWER IS WE ARE NOT
DOING A VERY GOOD JOB TALKING TOGETHER IN COMMON ABOUT THE
WAYS ALL THREE PRINCES SHOULD BE LIMITED. LET’S GO BACK TO THE
POINT ABOUT PERSONNEL. I SIT ON THE ARMED SERVICES COMMITTEE AND
ONE OF THE THINGS THAT WE DO THERE, I DON’T KNOW, EVERY
SECOND WEEK IS THAT WE HAVE CONFIRMATION VOTES OF DOZENS,
SCORES SOMETIMES HUNDREDS OF PROMOTIONS AND FLAG OFFICERS AND
WHY DO WE DO THAT? IT IS BECAUSE THERE ARE ALL SORTS OF
RESTRAINTS AND WHEN SOMEONE IS GETTING PROMOTED IN THE NAVY AND
PROMOTED AT THE AIR FORCE THE CONGRESS HAS OVER CITED THAT AND
BECAUSE THAT PROCESS WORKS SO WELL AND THERE IS SO MUCH CONGENIALITY IT TENDS TO NOT
TURN UP ON TV. IS A MOMENT AT THE START OF THE HEARINGS EVEN
THOUGH ANY SENATOR THAT WANTS TO DELAY THE PROMOTION BECAUSE
ALMOST ALL OF THAT STUFF AND THERE ARE THINGS WHERE THERE IS
UNITY AND HIRING IN PROMOTION. IT IS NONCONTROVERSIAL SO IT
DOESN’T END UP SALACIOUS OR ON TV.
>>I THINK THAT IS AN IMPORTANT
ADDITION THAT THE PRESIDENT AND THIS GOES TO SENATOR AS WELL
DOES NOT HAVE THE UNILATERAL POWER UNDER THE CONSTITUTION TO
APPOINT EVEN MEMBERS OF THE CABINET WHICH IF YOU ARE THINKING OF A
MONARCHY OF COURSE YOU WOULD BE ABLE TO DISPENSE OFFICES AND YOU
CAN’T CREATE OFFICES AND YOU CAN’T UNILATERALLY FILL EVEN
SECRETARY OF DEFENSE FOR SECRETARY OF STATE BECAUSE THE
FRAMERS WERE SO CONCERNED ABOUT OVERBROAD EXECUTIVE POWER THAT
THEY REQUIRE SENATE CONFIRMATION FOR THOSE POSITIONS WHO IF
CONFIRMED BECOME EXECUTIVE OFFICERS. THAT IS A HUGELY
IMPORTANT CHECK ON THE EXECUTIVE BRANCH WHICH IS A REALITY AND
THE CONFIRMATION PROCESS AS YOU SAY BECOMES PART AND PARCEL OF
THE SITE IN MANY WAYS AND I THINK THAT IS IMPORTANT. I SPENT A LITTLE TOO LITTLE
TIME, I MENTIONED IT ON APPROPRIATIONS, BUT THAT IS THE
LIFEBLOOD OF THE GOVERNMENT IS THE MONEY THAT CAUSES THE
GOVERNMENT AND ALLOWS THE GOVERNMENT TO OPERATE AND THE
PRESIDENT DOES NOT HAVE THE UNILATERAL POWER TO APPROPRIATE
MONEY AND CONGRESS ULTIMATELY THROUGH THAT APPROPRIATIONS
POWER AND YOU WILL KNOW THIS, CAN RESTRICT ACTIVITIES OF THE
EXECUTIVE BRANCH IN MULTIPLE WAYS AND I THINK THAT IS AN
IMPORTANT THING THAT IS TALKED ABOUT. THAT IS NOT TO SAY THE
PRESIDENT HAS LARGE POWERS OF COURSE UNDER THE CONSTITUTION,
BUT WE SOMETIMES FORGET AND I THINK YOUR CIVICS LESSON IS A
REMINDER THAT THESE CHECKS AND BALANCES WORK TOGETHER IN A WAY THAT COULD SERVE THE TEST OF
TIME AND PROBABLY COULD BE IMPROVED. STUCK IN ONE OF THE
REASONS THE EXECUTIVE RANCH SEEMS SO POWERFUL IS BECAUSE HOW
WEAK THE LEGISLATURE IS. A FUNDAMENTAL PART OF WHY WE HAVE
THE TERM PRESIDENT IN THE 1780S THIS WAS NOT A COMMON TERM.
PRESIDENT WAS A NOTIFIED FORM OF THE NAME
PRESIDING OFFICER AND WE MADE IT OUT. THEY MADE IT UP SO WE WOULD
NOT HAVE A TERM THAT SOUNDED A LOT LIKE A KING AND WE WANTED TO
BE SURE THAT THE TERM PRESIDING OFFICER SOUNDED BORING AND
ADMINISTRATIVE BECAUSE THE POLICYMAKING POWERS ARE SUPPOSED
TO SET IN THIS BODY AND ARTICLE 2 BRANCH IS SUPPOSED TO PROVIDE
OVER AND EXECUTE THE LAWS THAT HAVE BEEN PASSED. ONE OF THE
REASONS WE HAVE SOME OF THESE PROBLEMS WITH SO MANY AGENCIES
IS BECAUSE CONGRESS REGULARLY DOESN’T FINISH ITS WORK AND
THOSE POWERS ON ARTICLE 2 AND IT IS NOT CLEAR EXACTLY WHO CAN
EXECUTIVE — EXECUTE ALL THOSE AUTHORITIES. UNPACK A LITTLE BIT
WHY YOU HAVE A DIFFERENT VIEW ABOUT BOTH THE PRUDENCE AND THE
CONSTITUTIONALITY OF ONE PERSON HEADED INDEPENDENT AGENCY VERSUS
COMMISSION STRUCTURE. SPOKE AT THE TRADITIONAL
INDEPENDENT AGENCY THAT WERE UPHELD IN 1935 ARE MULTIMEMBER
INDEPENDENT AGENCIES AND USUALLY SOMETIMES THREE, FIVE
OCCASIONALLY MORE MULTIMEMBER INDEPENDENT AGENCIES AND THAT
HAS BEEN ALL THE WAY THROUGH AND FOR THE SIGNIFICANT AGENCIES AND
THE CFPB IT WAS DESIGNED FOR EFFICIENCY
AND A CERTAIN OVERLAPPING AUTHORITIES. SOMEONE CHALLENGED
THE FACT THAT IT WAS HEADED FOR THE FIRST TIME BY A SINGLE
PERSON AND COUPLE THINGS THEN I WROTE ABOUT IN MY DISSENT
IN THAT CASE, I SAID IT IS A DEPARTURE FROM HISTORICAL
PRACTICE AND THAT MATTERS ACCORDING TO THE SUPREME COURT.
THEY HAD A PREVIOUS CASE WHERE THEY HAD DIFFERENT INNOVATION AND SUPREME
COURT HAS STRUCK DOWN BECAUSE THE NOVELTY OF IT SO DEPARTURE
MATTERS AND THE PRESIDENTIAL AUTHORITY
BEYOND THE AGENCIES ENCODE THIS SENSE, THE
TRADITIONAL INDEPENDENT AGENCIES WHEN A NEW PRESIDENT COMES IN
OFFICE ALMOST IMMEDIATELY THE PRESIDENT HAS BEEN GIVEN THE
AUTHORITY TO DESIGNATE A NEW CHAIR SO WHEN PRESIDENT OBAMA
CAME IN AND COULD DESIGNATE NEW CHAIRS OF THE AGENCIES AND OF
COURSE THEY SET THE POLICY DIRECTION AND CONTROL THE
AGENDA. THAT DOES NOT HAPPEN WITH THE CFPB AND HAVING A
SINGLE PERSON, GOING BACK TO LIBERTY WHO IS IN CHARGE AND
NOT REMOVABLE AT WILL BY ANYONE AND IN CHARGE OF A HUGE AGENCY
IS SOMETHING THAT IS DIFFERENT AND HAS AN EFFECT AND A SINGLE
PERSON CAN MAKE THESE ENORMOUS DECISIONS ABOUT RULE MAKINGS AND
ENFORCEMENT DECISIONS AND FROM MY PERSPECTIVE I AM REPEATING
WHAT I WROTE. THAT WAS AN ISSUE OF CONCERN AND
I DID PUT IN A HYPOTHETICAL BECAUSE IT SEEMS ABSTRACT THAT I
THINK WE WILL REALIZE THIS ISSUE WITHOUT AGENCY OR ANY OTHER WHEN
A PRESIDENT COMES IN AND HAS TO LIVE FOR 3 OR FOUR YEARS WITH A CFPB DIRECTOR APPOINTED BY PRIOR
PRESIDENT AND EVERYONE WILL REALIZE AND THAT IS AN ODD
STRUCTURE. MAYBE NOT, BUT THAT’S WHAT I WROTE IN MY OPINION THAT
THAT WILL SEEM VERY WEIRD BECAUSE THAT IS NOT WHAT HAPPENS
WITH THE TRADITIONAL INDEPENDENT AGENCIES AND WHENEVER ANY PRESIDENT LEAVES
AND IS APPOINTED IN THE LAST TWO YEARS, THE NEW PRESIDENT MY
CAMPAIGN ON CONSUMER PROTECTION AND IMAGINE PRESIDENTIAL
CAMPAIGN ON CONSUMER PROTECTION AND CONSUMER ISSUES AND COMES
INTO OFFICE AND CANNOT APPOINT A NEW CFPB DIRECTOR FOR THE WHOLE
TERM. THAT WILL SEEM, I THINK ODD STRUCTURALLY . THAT IS WHAT
I SAID IN MY OPINION.>>IS IT FAIR TO SAY THAT IF YOU
HAVE A SINGLE PERSON HEADED AGENCY AND THAT PERSON,
POLICYMAKING FUNCTIONS AND JUDICIAL FUNCTIONS BECOMES THE FOURTH BRANCH OF GOVERNMENT
BECAUSE WHO ARE THEY ACCOUNTABLE TO? IS THAT A FAIR SUMMARY
CRIPES>>ABSOLUTELY THAT IS A FAIR
SUMMARY.>>I WANT TO ASK TO ENTER INTO
THE RECORD I HAVE A LETTER FROM SEVERAL DOZEN LEGAL SCHOLARS AND
PROFESSORS AND DIVERSE GROUP OF PEOPLE VERY AND A FEW OF THEIR QUOTES I WANT
TO INCLUDE THAT THEY ALL AGREE THAT HE HAS OUTSTANDING VIRTUES AND
WOULD BRING AN EXCEPTIONAL RECORD OF DISTINCTION AS WELL AS
HIS LONG RECORD OF TEACHING AND MENTORING STUDENTS IS TO BE
APPLAUDED AND HE WOULD CONTINUE TO HELP BUILD PRODUCTIVE FRIDGES
BETWEEN THE BENCH, LEGAL PRACTITIONERS AND THE ACADEMY.
CAN I ASK UNANIMOUS CONSENT TO INCLUDE THIS QUITE I HAVE A
SERIES OF QUESTIONS I WOULD LIKE TO ASK YOU ABOUT PRECEDENT AND
THE FIRST AMENDMENT BUT I WILL BE OUT OF TOWN — OUT OF TIME. I
WOULD LIKE TO GO BACK TO THE QUOTE AND WHAT IS A FAIR WAY TO
CHARACTERIZE THE POSITION THAT PEOPLE WOULD HAVE HELD BEFORE
JUSTICE KAGAN SAID WE HAVE ALL BECOME TEXTUAL US. WHEN THERE
WERE NON-TEXTILE IS WHO WERE THEY AND HOW DOES THAT MAKE ANY
SENSE>>ONE WAY TO DESCRIBE IT IS JUDGES WOULD TRY TO FIGURE OUT
WHAT THE GENERAL POLICY WAS REFLECTED AND FEEL FREE TO SHAPE
THE PARTICULAR PROVISION IN A WAY THAT THE TEXT WASN’T THERE
TO SERVE THAT BROAD POLICY AND I THINK THAT IS ONE WAY TO THINK
ABOUT IT. ANOTHER IS THAT SOMETIMES THEY WOULD USE A
SNIPPET OF A COMMITTEE REPORT OR A STATEMENT AND SAY THAT IS
REALLY WHAT CONGRESS WAS GETTING AT IN TERMS OF THE STATUTE AND
WE WILL FOLLOW THAT COMMITTEE REPORT OR STATEMENT RATHER THAN
FOLLOWING THE TEXT OF THE STATUTE. THAT IS ANOTHER WAY IN
WHICH JUDGES WOULD DEPART FROM THE TEXT AND THAT MODE OF
INTERPRETATION I DO BELIEVE JUSTICE SCALIA HAD A PROFOUND
EFFECT ON THE SUPREME COURT AND THE LOWER COURTS IN PARTICULAR
AND ONE OF THE THINGS JUSTICE KAGAN SAID WAS YOU PROBABLY DIDN’T GET 100%,
BUT HE GOT CLOSE IN TERMS OF MOVING THE BALL IN HIS DIRECTION
AND THAT EVERYONE REALLY DOES PAY ATTENTION AND IF YOU SAT IN
MY COURT AND LISTEN TO ARGUMENT AFTER ARGUMENT WHICH I DON’T RECOMMEND. YOU WOULD HEAR JUDGE
AFTER JUDGE SAYING WHAT ABOUT THE STATUTE AND EVERY JUDGE
FOCUSED ON THE TEXT BECAUSE THAT IS WHAT YOU HAVE PASSED AND THAT
WHAT MATTERS AND BECAUSE WE KNOW THE COMPROMISES THAT ARE
INHERENT TO ANY PRODUCT AND WE HAVE TO RESPECT THAT COMPROMISE.>>I THINK ONE OF THE THINGS
THAT CONCERNS ME ABOUT THE WAY WE HAVE TALKED ABOUT YOUR
NOMINATION AND A LOT OF MEDIA REPORTS IS THAT IT HAS BEEN SAID
THAT YOU HAVE BEEN NOMINATED TO THE SO-CALLED SWING SEAT ON THE
BOARD. I THINK TWO WAYS WE CAN GO WRONG, ONE OF THEM ARE
THINKING ABOUT JUDGES AS REPUBLICAN VERSUS DEMOCRAT AND
YOU ARE SUPPOSEDLY, BECAUSE YOU HAVE WORKED IN REPUBLICAN AND
YOU WOULD BE NOMINATED BY REPUBLICAN PRESIDENT TODAY THERE
ARE A LOT OF PEOPLE THAT SAY YES WE GET OUR GUIDE YOU ARE
SUPPOSED TO BE A REPUBLICAN AND THERE ARE OTHER PEOPLE WHO SAY HOPEFULLY HE CAN GROW IN
OFFICE BECAUSE HE WILL BE NOMINATED AND CONFIRMED TO THE
SWING SEAT AND HE WILL BE BIG ENOUGH TO RISE ABOVE THE
POLITICS AND WHEN THERE ARE BIG ISSUES FACING THE COUNTRY THAT
GET TO THE COURT AT LEAST THIS COULD BE THE GUY WHO RISES TO
THE LEVEL OF GIVING WISDOM AND FUNCTIONING NOT JUST AS A JUDGE,
MAYBE AS A CAUSE ACHINGLY FIGURE. WHAT DO YOU SAY TO
PEOPLE WHO HAVE A CONCEPTION OF A SWING SEAT?>>NOT ENTIRELY SURE WHAT IT
MEANS TO INDIVIDUAL PEOPLE WHO USE THAT TERM.>>ARE YOU BEING CONSIDERED FOR
THE SWING SEAT? >>I BE NOMINATED TO REPLACE
JUSTICE KENNEDY WHO WAS HIS OWN MAN AS AM I AND I HAVE TALKED
ABOUT HIS JURISPRUDENCE AND HIS DEVOTION TO LIBERTY WHICH HE
FOUND AS A UNIFYING THEME OF ALL THE CONSTITUTIONAL PROVISIONS
AND ESTABLISHED A LEGACY OF LIBERTY AND PROSPERITY AND THE
FRAMERS WANTED TO SECURE THAT AND I HAVE READ THAT HE PUBLICLY IN
PUBLIC STATEMENTS DIDN’T LIKE THAT TERM AND I AM NOT SURE I ALWAYS KNOW WHAT PEOPLE MEAN
BY THAT TERM AND I BELIEVE IT AND IF I’M HONEST I AM FORTUNATE
ENOUGH TO BE CONFIRMED AND I THINK OF MYSELF OF BEING A TEAM
PLAYER. I THINK THROUGH A SPORTSLINE SOMETIMES AND I THINK
THAT IS IMPORTANT. I AM NOT NAÃ VE , THERE ARE CASES WHERE PEOPLE
DIVIDE AND I THINK THAT MINDSET AND ATTITUDE MATTERS IN ANY
COLLEGIAL BODY AND THE COURT IS A COLLEGIAL BODY AND DIFFERENT-
>>I WATCHED THE CHAIRMAN PULL HIS GAVEL AND
IF I DON’T GET MY QUESTION AND BEFORE THE BELL I AM DONE. I CAN
GET ONE MORE OFF. >>MAKE SURE IT IS A SHORT
QUESTION.>>I STRUGGLED TO FIND MY VOICE
FOR MY DISSERTATION AND I HAD A GREAT ADVISOR PUT AN EIGHT BY 10
PICTURE UP NEXT TO YOUR KEYBOARD AND MAKE IT BE SOMEONE YOU ARE
WRITING TO EVERY DAY AND MAKE IT BE SOMEONE WHO IS SMARTER THAN YOU AND
KNOWS NOTHING ABOUT YOUR TOPIC. I TOOK A PICTURE OF MY AUNT FROM
ONE OF THE FARMS I USED TO WORK ON AND SHE IS FAR SMARTER THAN I
AM AND DIDN’T KNOW ANYTHING ABOUT THE TOPIC AND IT WAS A
HELPFUL DEVICE FOR ME TO FIGURE OUT WHO I WAS WRITING TO. WHEN
YOU WRITE YOUR OPINIONS WHO ARE YOU WRITING FOR? BUCKET MULTIPLE
AUDIENCES. I AM THINKING ABOUT THE LITIGANTS FOR US AND I WANT
THE LOSING PARTY IN PARTICULAR TO RESPECT THE OPINION . THEY WON’T AGREE WITH IT, I
WANT THEM TO RESPECT THE OPINION AND THE CLARITY AND THE FACT
THAT I UNDERSTOOD THE REAL-WORLD CONSEQUENCES THAT I GRAPPLED
WITH THE LAW AND WITH THE BEST ARGUMENTS SO I WANT THE LOSING
PARTY TO COME AWAY SAYING HE GOT IT. AS A LITIGANT I KNEW HOW
IMPORTANT THAT WAS. DUE PROCESS AND IT BUILDS OVERALL CONFIDENCE
IN THE JUDICIARY TO KNOW YOU ARE GETTING A FAIR SHAKE EVEN WHEN
YOU LOSE. I AM ALSO WRITING FOR THE PARTIES AFFECTED SO WE
DECIDE CASES IN CONTROVERSY AND WE WRITE OPINIONS AND THE
OPINIONS NEED TO BE CLEAR AND THEY NEED TO BE ORGANIZED AND IF
THERE IS SOMETHING MESSED UP I HAVE SEEN THAT IN PRIVATE
PRACTICE THAT WILL CAUSE ALL SORTS OF COMPLICATIONS. TO GET
IT EXACTLY RIGHT IS SO IMPORTANT AND I AM THINKING ABOUT THE
AFFECTED PARTIES WHETHER IT IS AGENCIES OR
REGULATED PARTIES OR THE CRIMINAL DEFENSE BAR OR THE
PROSECUTION I AM ALWAYS THINKING ABOUT THAT. I AM THINKING ABOUT
SOMEONE LIKE SIMILAR TO YOUR MODEL SOMEONE WHO PICKS UP THE
DECISION AND IS A LAWYER AND I WANT THEM TO BE ABLE TO READ IT
AND UNDERSTAND IT AND GET IT AND BE ABLE TO FOLLOW IT SO I TRIED
TO HAVE AN INTRODUCTORY PARAGRAPH OR A FEW PAGES. THEY
CAN JUST READ THE INTRODUCTION AND GET IT AND THEY CAN READ THE
WHOLE THING IF THEY WANT TO. THAT IS VERY IMPORTANT AS WELL.
I AM WRITING I THINK ABOUT STUDENTS . WHERE DO STUDENTS LEARN LAW?
THEY LEARNED BY READING OPINIONS. I TAUGHT IS 12 YEARS
AND I UNDERSTAND THE VALUE OF TEACHING AND TEACHING TO YOUR
OPINIONS. THAT’S NOT THE FIRST THING, BUT THAT IS CAN A STUDENT
LEARN FROM THIS ABOUT THE CRIMINAL, THE FOURTH AMENDMENT
OR LEARN ABOUT THE FIRST AMENDMENT IF THEY READ MY
OPINION. IF I GIVE THE HISTORICAL BACKDROP OF THE
INDEPENDENT AGENCIES MAY BE A STUDENT WILL PICK THAT UP AND
THINK THAT IS GOOD AND I’M THINKING ABOUT PROFESSORS, NOT IN A SENSE OF
TRYING TO CONVINCE NECESSARILY IF IT IS NOT SOMETHING LIKE THAT
THE SENSE OF A PROFESSOR IS THINKING FOR YEARS ABOUT
SOMETHING I MIGHT HAVE A WEEK OR TWO OR FOR TO SPEND AND THEY ARE
WRITING TREATISES AND ARTICLES AND I WANT THEM TO AT LEAST BE
ABLE TO UNDERSTAND AND LOOK AT MY OPINION TO FILL THE BODY OF
LAW. >>THANK YOU.
>>WHY DIDN’T YOU ASK THAT QUESTION FIRST?
>>WE ARE GOING TO TAKE A 10 MINUTE BREAK. IF YOU CAN BE BACK
IN FIVE MINUTES IT WOULD BENEFIT SENATOR BLUMENTHAL.>>>SENATOR BLUMENTHAL.>> THANK YOU, MR. CHARIMAN. I
WANT TO BEGIN BY TALKING ABOUT THE ELEMENT ELEMENT — ELEPHANT
IN THE ROOM THE PRESIDENT OF THE UNITED STATES WHO HAS NOMINATED
YOU IS AN UNINDICTED CO-CONSPIRATOR IMPLICATED IN
SOME OF THE MOST SERIOUS WRONGDOING THAT INVOLVES THE
LEGITIMACY OF HIS PRESIDENT. THERE IS A DISTINCT POSSIBILITY
EVEN A LIKELIHOOD THAT ISSUES CONCERNING HIS PERSONAL , CRIMINAL OR CIVIL LIABILITY
MAY COME BEFORE THIS SUPREME COURT. AS EARLY AS THE NEXT
TERM. THE ISSUES MAY INVOLVE HIS REFUSAL TO COMPLY WITH A GRAND
JURY SUBPOENA OR TO TESTIFY IN A CRIMINAL TRIAL INVOLVING ONE OF
THE OFFICIALS IN HIS ADMINISTRATION OR HIS FRIENDS OR
EVEN HIS OWN ACTUAL INDICTMENT. WE ARE IN UNCHARTERED TERRITORY.
IT IS UNPRECEDENTED FOR A SUPREME COURT NOMINEE TO BE
NAMED BY A PRESIDENT WHO IS AN UNINDICTED CO-CONSPIRATOR. IN
THE US VERSUS NIXON CASE TWO OF THE JUSTICES HAVE BEEN APPOINTED
BY RICHARD NIXON, BUT NOT WHILE HE WAS AN UNINDICTED
CO-CONSPIRATOR. I WOULD LIKE YOUR COMMITMENT THAT YOU WILL RECUSE YOURSELF IF
THERE IS AN ISSUE INVOLVING HIS CRIMINAL OR CIVIL LIABILITY
COMING BEFORE UNITED STATES SUPREME COURT. IN OTHER WORDS,
WILL YOU TAKE YOURSELF OUT OF LANE ON ANY OF THE ISSUES
INVOLVING HIS PERSONAL , CIVIL OR CRIMINAL LIABILITY.
>>ONE OF THE CORE PRINCIPLES IS THE INDEPENDENCE OF THE
JUDICIARY WHICH I KNOW YOU CARE ABOUT DEEPLY AND UNDERGIRDS SOME
OF YOUR COMMENTS YESTERDAY. ONE KEY FACET OF INDEPENDENCE OF
THE JUDICIARY AS I HAVE STUDIED THE HISTORY OF NOMINEES IS NOT
TO MAKE COMMITMENTS ON PARTICULAR CASES-
>>I’M NOT ASKING FOR A PARTICULAR COMMITMENT. I WILL
TAKE YOUR ANSWER AS A NO. IS A YES OR NO QUESTION. YOU WILL NOT
COMMIT TO RECUSE YOURSELF. YOU WILL NOT COMMIT TO TAKE YOURSELF
OUT OF THAT DECISION DESPITE THE UNIQUE CIRCUMSTANCES.
>>SENATOR, I THINK TO BE CONSISTENT WITH THE PRINCIPLE I
SHOULD NOT AND MAY NOT MAKE A COMMITMENT ABOUT HOW I WOULD
HANDLE A PARTICULAR CASE AND THE DECISION TO PARTICIPATE IS
ITSELF A DECISION IN A PARTICULAR CASE AND THEREFORE
FALLING THE PRECEDENT SET FILE ON AMY IS PERFORMING I NEED TO BE CAREFUL AND YOU MAY
DISAGREE, BUT THIS IS PART OF WHAT I SEE AS THE INDEPENDENCE
OF THE JUDICIARY.>>I DO DISAGREE AND I AM
TROUBLED AND DISTURBED BY YOUR REFUSAL TO SAY THAT YOU WOULD
TAKE YOURSELF OUT OF THAT KIND OF CASE. I WANT TO MOVE ON TO
SOME EXAMPLES OF REAL-WORLD IMPACTS ON REAL PEOPLE. TAKING THAT AS A FACTOR AS YOU
HAVE ARTICULATED IT IN THE DECISIONS I WANT TO TALK ABOUT
JANE DOE IN AS YOU KNOW SHE WAS A
17-YEAR-OLD UNACCOMPANIED MINOR CAME ACROSS ESCAPING PHYSICAL VIOLENCE IN
HER HOMELAND AND THAT SHE CRAVED HORRIFIC THREATS OF RAPE AND
SEXUAL EXPLOITATION AS SHE CROSSED THE BORDER. SHE WAS EIGHT WEEKS PREGNANT AND
UNDER TEXAS LAW SHE RECEIVED AN ORDER THAT ENTITLED HER TO AN
ABORTION AND SHE ALSO WENT THROUGH MANDATORY COUNSELING AS
REQUIRED BY TEXAS LAW. SHE WAS ELIGIBLE FOR AN ABORTION UNDER
THE LAW. THE TRUMP ADMINISTRATION BLOCKED HER. THE
OFFICE OF REFUGEE RESETTLEMENT FORCED HER TO GO TO A CRISIS
PREGNANCY CENTER WHERE SHE WAS SUBJECTED TO MEDICALLY
UNNECESSARY PROCEDURES. SHE WAS PUNISHED BY HER CONTINUED
REQUEST TO TERMINATE HER PREGNANCY BY BEING ISOLATED FROM
THE REST OF THE RESIDENCE AND ALSO FORCED TO NOTIFY HER
PARENTS WHICH TEXAS LAW DID NOT REQUIRE AND THE PREGNANCY WHICH WAS EIGHT
WEEKS WAS FOUR WEEKS FURTHER WHEN YOU PARTICIPATED ON A PANEL
THAT UPHELD THE TRUMP ADMINISTRATION IN BLOCKING HER
EFFORTS TO TERMINATE HER PREGNANCY. THE DECISION OF THAT
PANEL WAS OVERRULED BY A FULL-COURT OF THE D.C. CIRCUIT COURT OF APPEALS A
REVERSE THAT PANEL AND THE DECISION AND OPINION IN THAT
CASE COMMENTED “THE FLAT BARRIER THAT THE GOVERNMENT HAS
INTERPOSED TO HER KNOWING AND INFORMED DECISION TO END THE
PREGNANCY DEFIES CONTROLLING THE SUPREME COURT PRECEDENT AND IT
SAID FURTHER THE GOVERNMENT INSISTENCE THAT IT MUST NOT EVEN
STAND BACK AND PERMIT ABORTION TO GO FORWARD FOR SOMEONE IN
SOME FORM OF CUSTODY IS ERRATIC. IN ADDITION TO THAT IT ALSO
THREATENED HER HEALTH BECAUSE SHE WAS UNABLE TO TERMINATE HER
PREGNANCY FOR WEEKS THAT FURTHER INCREASED THE RISK OF THE
PROCEDURE, ONE STUDY SAID 30% EVERY WEEK HER HEALTH WAS
THREATENED, SHE WAS GOING THROUGH EMOTIONAL TURMOIL AND
YET IN YOUR DISSENT YOU WOULD HAVE FURTHER BLOCKED AND DELAYED
THAT TERMINATION OF PREGNANCY. ALL OF WHAT I SAID IS CORRECT
AND TO THE FACTS.>>NO, I RESPECTFULLY DISAGREE
IN VARIOUS PARTS. MY RULING, MY POSITION IN THE
CASE WOULD NOT HAVE BLOCKED- >>IT WOULD HAVE DELAYED IT. GETTING PERILOUSLY CLOSE TO THE
20 WEEK LIMIT UNDER TEXAS LAW, CORRECT?
>>NO, WE WERE STILL SEVERAL WEEKS AWAY. SEVERAL THINGS THAT
ARE IMPORTANT,- >>I WANT TO GO ON BECAUSE I CAN
READ YOUR DISSENT, BUT I WANT TO GO TO—>>YOU READ FIRST OF THINGS AND
RESPECTFULLY THE OPINION WAS BY ONE JUDGE THAT YOU WERE READING
FROM THAT WAS NOT THE OPINION FOR THE MAJORITY AND SECONDLY I
WAS TRYING TO FOLLOW PRECEDENT OF THE SUPREME COURT
ON PARENTAL CONSENT WHICH ALLOWS SOME DELAYS IN THE ABORTION
PROCEDURE SO AS TO FULFILL THE PARENTAL CONSENT REQUIREMENTS I
WAS REASONING BY ANALOGY FROM THOSE. PEOPLE CAN DISAGREE ON
WHETHER WE WERE FOLLOWING PRECEDENT AND I WAS TRYING TO DO SO AS
FAITHFULLY AS I COULD AND EXPLAINED THAT AND I ALSO DID
NOT JOIN SEPARATE OPINION THE DISSENT THAT SHE SAID SHE HAD NO
RIGHT TO OBTAIN AN ABORTION. I DID NOT SAY THAT AND I MADE
CLEAR THAT THE GOVERNMENT COULD NOT USE THIS IMMIGRATION SPONSOR
PROVISION AS A RUSE TO TRY TO DELAY HER ABORTION CAST APPOINT
A TIME WHEN IT WAS SAFE.>>LET’S TALK ABOUT YOUR DISSENT
IN A MOMENT. FIRST, I WANT TO TALK ABOUT A LIST. IT IS THE
LIST THAT DON TRUMBULL — THAT DONALD TRUMP CIRCULATED
OF HIS POTENTIAL SUPREME COURT NOMINEES. MAY 2016 WAS YOUR NAME ON THAT LIST?
>>IT WAS NOT. >>AND HE CIRCULATED ANOTHER
LIST NOVEMBER 2017 AND ANOTHER LIST OF SUPREME COURT NOMINEE.
WAS YOUR NAME ON THAT LIST?>>2017, THERE WAS ANOTHER LIST
IN THE INTERIM BETWEEN THOSE TWO.
>>IS LITMUS TEST FOR THAT LIST WAS THAT INJUSTICE THAT HE WOULD
NOMINATE WOULD HAVE TO AUTOMATICALLY OVERTURN ROE V.
WADE, CORRECT?>>I’M NOT GOING TO COMMENT ON
WHAT HE HAD SAID.>>HE SAID IT. THAT IS NOT IN
DISPUTE. IN BETWEEN AND I’M NOT SURE THE EXACT WORDS
YOU JUST USED ARE CONSISTENT WITH WHAT HE SAID. WHATEVER HE
SAID PUBLICLY WILL STAND IN THE RECORD.
>>OCTOBER 2017 YOUR DECISION AND DISSENT IN GARZA, CORRECT?>>IT DID, BUT THAT CASE CAME TO
US IN AN EMERGENCY POSTURE. I DID NOT SEEK THAT. I WAS DRIVING
HOME ON A WEDNESDAY NIGHT AND THE CLERKS OFFICE CALLED AND
SAID WE HAVE AN EMERGENCY ABORTION CASE WHICH IS VERY
UNUSUAL IN OUR COURT.>>WHAT OCCURRED BETWEEN MAY
2016 AND NOVEMBER 2017 BESIDES YOUR GARZA DISSENT THAT PUT YOU
ON THAT LIST? >>MR. McGANN WAS WHITE HOUSE
COUNSEL AND BY THEN I’M LOOKING AT THE
DATES.>>PRESIDENT TRUMP HAD TAKEN
OFFICE AND MR. McGAHN, A LOT OF JUDGES AND
LAWYERS- >>LET’S TALK ABOUT
>>AND I ANSWER THE QUESTION QUITE I HAD AN ANSWER TO YOUR
QUESTION. YOU SAID WHAT ELSE HAPPENED AND I HAVE AN ANSWER.
>>IT GO AHEAD.>>A LOT OF JUDGES AND LAWYERS I
KNOW MAKE CLEAR TO, I THINK VARIOUS PEOPLE THAT
THEY THOUGHT I SHOULD BE CONSIDERED BASED ON MY RECORD
FOR THE LAST 12 YEARS AND COLLEAGUES OF MINE THOUGHT I
SHOULD BE CONSIDERED AND I THINK I APPRECIATE THAT AND –
>>MAY BE MORE OF A FEW OF THEM CITED YOUR DISSENT IN GARZA.
>>THAT HAPPENED LONG BEFORE THAT. AND THAT THREE TIMES YOU USE THE
TERM ABORTION ON DEMAND, ABORTION ON DEMAND AS YOU KNOW
IS A CODE WORD IN THE ANTI-CHOSE COMMUNITY IN FACT IT IS USED BY
JUSTICES SCALIA AND THOMAS IN THERE DISSENT FROM SUPREME COURT
OPINION THAT A FIRM ROE V. WADE. THEY HAVE USED IT NUMEROUS TIMES
IN THOSE AND IT IS A WORD USED IN THE ANTI-CHOICE COMMUNITY. IN
ADDITION AND THAT DISSENT YOU REFERRED TO ROE V. WADE AS
EXISTING SUPREME COURT PRECEDENT . YOU DON’T REFER TO IT AS ROE
V. WADE PROTECTING HER RIGHT TO PRIVACY OR HER RIGHT TO AN
ABORTION , YOU REFERRED TO IT AS EXISTING
SUPREME COURT PRECEDENT NOT SUPREME COURT PRECEDENT EXISTING
SUPREME COURT PRECEDENT. NOW, I DON’T REFER OR RECALL SEEING A
JUDGE REFERRED TO EXISTING SUPREME COURT PRECEDENT IN OTHER
DECISION CERTAINLY NOT COMMONLY UNLESS THEY ARE OPENING THE POSSIBILITY
OF OVERTURNING.. A LITTLE BIT LIKE SOMEONE INTRODUCING HIS
WIFE TO YOU AS MY CURRENT WIFE. YOU MIGHT NOT EXPECT THAT WIFE
TO BE AROUND FOR ALL THAT LONG. THROUGHOUT YOUR OPINION YOU ARE
CAREFUL TO NEVER SAY THAT THE CONSTITUTION PROTECTS THE RIGHT
TO CHOOSE. YOU CAN SEE THAT THE PARTIES HAVE ASSUMED FOR
PURPOSES OF THIS CASE AND THE PLAINTIFF HAS A RIGHT TO ENTER
PREGNANCY, BUT NOT THAT SHE ACTUALLY HAS THAT RIGHT. YOU
WRITE “AS A LOWER COURT OUR JOB IS TO FOLLOW THE LAW AS IT IS,
NOT AS WE MIGHT WISH IT TO BE.”>>I HAVE TO INTERRUPT BECAUSE I
WAS REFERRING TO THE PARENTAL CONSENT CASES AS WELL WHICH I
TALKED ABOUT AT SOME LENGTH AND MY DISAGREEMENT WITH THE OTHER
JUDGE WAS ABOUT I THOUGHT AS BEST I COULD WAS FAITHFULLY
FOLLOWING THE PRECEDENT ON THE PARENTAL CONSENT STATUTES WHICH
ALLOWED REASONABLE REGULATION AS CASEY SAID MINERS BENEFIT FROM
CONSULTATION ABOUT ABORTION THAT IS AN EXACT QUOTE AND THE
SUPREME COURT HAD UPHELD THE STATUTES EVEN THOUGH THEY AND
OCCASIONED SOME DELAY IN THE PROCEDURE AND JUSTICES MARSHALL AND BLACKMAN AND I PUT
THAT ALTOGETHER AND I SAID DIFFERENT PEOPLE DISAGREE ABOUT
THIS FROM DIFFERENT DIRECTIONS AND WE HAVE TO FOLLOW IT AS
FAITHFULLY AS POSSIBLE AND TO THE PARENTAL CONSENT WAS THE
MODEL, NOT THE MODEL, BUT THE PRECEDENT AND ABORTION ON DEMAND I AM NOT FAMILIAR WITH THE CODE
WORD WHAT I AM FAMILIAR WITH IS CHIEF JUSTICE BURGER AND HIS
CONCURRENT IN ROE V. WADE ITSELF SO HE JOINED THE MAJORITY AND
WROTE A CONCURRENT THAT SPECIFICALLY SAID THAT THE COURT
TODAY DOES NOT UPHOLD ABORTION ON DEMAND THAT IS HIS PHRASE AND
HE JOINED THE MAJORITY IN ROE V. WADE AND WHAT THAT MEANT IN
PRACTICE OVER THE LAST 45 YEARS IS THAT REASONABLE REGULATIONS
ARE PERMISSIBLE SO LONG AS THEY DON’T CONSTITUTE AN UNDUE BURDEN
AND THE PARENTAL CONSENT, THE INFORMED CONSENT THE 24 HOUR
WAITING PERIOD, PARENTAL NOTICE AND THAT IS WHAT I UNDERSTOOD
CHIEF JUSTICE BURGER TO BE CONTEMPLATING AND WHAT I WAS
RECOGNIZING WHEN I USE THAT TERM.
>>IT ALSO WAS A SIGNAL. LET’S BE VERY BLUNT. IT WAS A SIGNAL TO THE
FEDERALIST SOCIETY AND THE PREPARERS OF THOSE LISTS YOU WERE PREPARED AND YOU ARE TO
OVERTURN ROE V. WADE. ABORTION ON DEMAND HAS A VERY SPECIFIC
MEANING IN THE DISSENT AFTER ROW. WE REFERENCE TO THAT NOT AS
YOU WISHED IT TO BE, BUT AS THE LAW EXISTING NOW REQUIRES.
IS IT A FACT, JUDGE, ALSO THAT WHILE YOU WERE IN THE BUSH WHITE
HOUSE YOU TOOK THE POSITION THAT NOT ALL LEGAL SCHOLARS ACTUALLY
BELIEVE THAT ROE V. WADE IS THE SETTLED LAW OF THE LAND
AND THAT THE SUPREME COURT CAN ALWAYS OVERTURN IT AS PRECEDENT
AND IN FACT THERE WERE A NUMBER OF JUSTICES THAT WOULD DO SO.
>>I THINK THAT IS WHAT LEGAL SCHOLARS, SOME LEGAL SCHOLARS
HAVE UNDOUBTEDLY SAID THINGS LIKE THAT OVER TIME, BUT THAT IS
DIFFERENT FROM WHAT I AS A JUDGE , MY POSITION AS A IS THAT THERE
IS 45 YEARS OF PRECEDENT AND PLANNED PARENTHOOD VERSUS CASEY
WHICH REAFFIRMED ROE AND THAT IS IMPORTANT AND THAT IS AN
IMPORTANT PRECEDENT IT IS NOT THE ONLY AND IN CASE
HE IT IS IMPORTANT TO UNDERSTAND AND IT GOES TO YOUR POINTS ABOUT
EXISTING, PLANNED PARENTHOOD VERSUS CASEY REAFFIRMED ROE AND
AT THE SAME TIME UPHELD PENNSYLVANIA’S WAITING PERIOD
AND THE PARENTAL CONSENT PROVISION OF THE PENNSYLVANIA
LAW AND JUSTICES BLACKMUN AND STEVENS DISSENTED FROM THAT PART
OF THE DECISION IN MANY WAYS CASEY REACH THE POSITION SO LONG AS IT
DOESN’T CONSTITUTE AN UNDUE BURDEN AND THAT IS THE BODY OF
PRECEDENT ON THE REGULATION IT IS WHAT REGULATION AND THAT IS THE
BODY OF EXISTING SUPREME COURT. >>THAT IS EXACTLY THE POINT.
YOU WERE TELLING THE TRUMP ADMINISTRATION THAT IF THEY
WANTED SOMEONE WHO WOULD OVERTURN ROE V. WADE, YOU WOULD
MAKE THE LIST. THESE WERE YOUR BUMPER STICKERS IN THAT
CAMPAIGN. ABORTION ON DEMAND, EXISTING PRECEDENT, LAW NOT AS
NECESSARILY WAS AS YOU WISHED IT NOW.
>>TWO OTHER THINGS, I DID NOT JOINED A SEPARATE OPINION OF
ANOTHER DISSENTER WHO SAID THERE WAS NO CONSTITUTIONAL RIGHT AT
ALL FOR THE MINOR IN THAT CASE. I DID NOT JOIN THAT AND SECONDLY
I WILL SAY THREE THINGS, SECONDLY I SAID IN A FOOTNOTE
THAT MY DISSENT WAS JOINED BY BOTH
EVENT THAT THE GOVERNMENT COULD NOT USE THIS TRANSFER TO BE A
SPONSOR PROCEDURE AS A RUSE TO DELAY THE ABORTION –
>>YOU DIDN’T JOIN THAT DISSENT.>>I SAID THIRDLY THAT IT IS THE
NINE DAYS OR SEVEN DAYS A WIRED THAT THE MINOR AT THAT POINT
UNLESS THE GOVERNMENT HAD SOME OTHER REGULAR OTHER — OTHER
ARGUMENT AND I DON’T KNOW WHAT THAT WOULD’VE BEEN, THAT THE
MINOR WOULD BE ALLOWED TO OBTAIN THE ABORTION. IT WASN’T MY
POLICY IT WAS THE POLICY SET FORTH BY THE GOVERNMENT AND WAS
THAT CONSISTENT WITH PRECEDENT AND IT WAS A DELAY UNDOUBTEDLY,
BUT CONSISTENT AS I THOUGHT ON PARENTAL CONSENT PROVISIONS. BUCKET, WELL, LET ME ASK YOU
THEN CAN YOU COMMIT SITTING HERE TODAY THAT YOU WOULD NEVER
OVERTURN ROE V. WADE?>>EACH OF THE EIGHT JUSTICES
CURRENTLY WHEN THEY WERE IN THIS SEED
DECLINED TO ANSWER THAT QUESTION.
>>I UNDERSTAND THAT YOU HAVE GIVEN THAT ANSWER BEFORE. YOU
CAN UNDERSTAND ALSO GIVEN WHAT WE HAVE SEEN IN GARZA AND THE
PATTERN HERE OF SENDING A SIGNAL ABOUT YOUR
WILLINGNESS TO OVERTURN ROE V. WADE THAT YOUR RESPONSE LEAVES
AND SERIOUS QUESTION YOUR COMMITMENT TO THIS AND IN FACT
GIVEN THE REAL-WORLD CONSEQUENCES A YOUNG WOMAN’S
HEALTH WAS PUT IN SERIOUS JEOPARDY. SHE CAME CLOSE TO
BEING UNABLE AT 20 WEEKS TO EVEN HAVE THE OPPORTUNITY TO TERMINATE HER
PREGNANCY, SHE WAS DEPRIVED OF OPTIONS BECAUSE OF THAT AND YOU
WOULD HAVE DELAYED IT FURTHER AND PERHAPS COMPLETELY AND I
THINK THAT YOU NEEDED TO SEND A MESSAGE TO THE TRUMP
ADMINISTRATION THAT YOU SHOULD BE ON THAT LIST. LET ME MOVE ON
TO OTHER HEALTHCARE ISSUES. YOU HAVE TAKEN THE POSITION AND I WILL PUT UP A POSTER. THAT
THE PRESIDENT’S AUTHORITY UNDER THE CONSTITUTION THE PRESIDENT MAY DECLINE TO
ENFORCE A STATUTE THAT REGULATES PRIVATE INDIVIDUAL WHEN HE DEEMS
, WHEN HE DEEMS IT UNCONSTITUTIONAL EVEN IF A COURT
HAS UPHELD WHAT WOULD HOLD THAT STATUTE UNDER THE
AFFORDABLE CARE ACT THEIR PROTECTIONS FOR MILLIONS
OF AMERICANS WHO SUFFER FROM PRE-EXISTING CONDITIONS.
PROTECTION HAS REAL-WORLD CONSEQUENCES. PRE-EXISTING
CONDITIONS INCLUDE ALZHEIMER’S , ARTHRITIS, CONGESTIVE HEART
FAILURE, CROHN’S DISEASE, HEPATITIS, LUPUS, MENTAL
DISORDER, THAT IS A VERY PARTIAL LIST INCLUDING BEING PREGNANT,
YOU HAVE ANSWERED MY COLLEAGUE SENATOR THAT YOU WOULDN’T WHETHER OR NOT THE PRESIDENT
WOULD HAVE THE POWER TO STRIKE DOWN THAT STATUTE UNILATERALLY
OR DECIDED THAT HE WOULD NOT ENFORCE IT. THERE IS A CASE
PENDING. DO YOU BELIEVE THAT THE
PRESIDENT CAN REFUSE TO ENFORCE THAT EVEN IF THE UNITED STATES
SUPREME COURT UPHOLDS IT?>>SENATOR, A COUPLE OF THINGS.
FIRST OF ALL IS TO CLOSE OUT THE PRIOR DISCUSSION YOU SAID DELAY
COMPLETELY AND THAT IS NOT WHAT I SAID. I SAID IT COULD NOT BE
DELAYED PAST THE POINT OF A SAFE TIME. I WANTED TO CLOSE THE LOOP
ON THAT AND MAKE CLEAR THE RECORD ON THAT. I WAS REFERRING
TO THE CONCEPT OF PROSECUTORIAL DISCRETION AND THIS IS IN A BROADER
ESTABLISHED BY UNITED STATES VERSUS RICHARD NIXON CASE WHICH
SAYS THE EXECUTIVE BRANCH HAS THE EXCLUSIVE AUTHORITY AND
ABSOLUTE DISCRETION WHETHER TO PROSECUTE A CASE. THAT IS A
DIRECT QUOTE AND THE SUPREME COURT ALSO SAID THAT APPLIES TO
CIVIL ENFORCEMENT AS WELL. THAT IS THE PRECEDENT I WAS
EXPLAINING LATER. WHY DID I HAVE THAT IN THERE AT ALL? IN THE
AFFORDABLE CARE ACT CASE I WROTE A DECISION SAYING THAT THE COURT
SHOULD NOT CONSIDER AT THAT TIME BECAUSE IT WAS NOT RIGHT UNDER
THE JUNCTION ACT AND THAT WE SHOULD WAIT TO CONSIDER-
>>HERE’S MY QUESTION TO YOU. THE ENFORCEMENT OF THE
AFFORDABLE CARE ACT AND MY QUESTION IS AND THAT TEXAS CASE
SHOULD HOLD IT TO BE CONSTITUTIONAL COULD PRESIDENT TRUMP DECLINE TO
ENFORCE THAT OR IT RISKS THE HEALTH OF LITERALLY TENS OF MILLIONS OF AMERICANS
INCLUDING 500,000 PEOPLE IN CONNECTICUT >>WE ARE NOT TALKING ABOUT THAT
DISCRETION. WE ARE TALKING ABOUT THE
PRESIDENT SAYING THAT LAW AND THE AFFORDABLE CARE ACT. THIS
PRESIDENT COULD DECIDE HE IS NOT ENFORCING. WE ARE TALKING ABOUT STATUTE
THAT REGULATE. SIMPLY BECAUSE HE DEEMS THEM
UNCONSTITUTIONAL. A COUPLE OF THINGS , THEY ARE PRIVATE CAUSES OF
ACTION. ? I AM NOT DISPUTING THAT. I ELABORATED ON THAT. AND HIS
SUBSEQUENT MARKET SPEECH THAT IS PUBLISHED, I INDICATED THAT THE
LIMIT OF DISCRETION ARE UNCERTAIN AND IT WOULD BE IMPORTANT FOR
ACADEMICS AND OTHERS TO STUDY THE HISTORY AND FIGURE OUT THE
LIMITS. >>THERE ARE NO LIMITS.>>IF YOU LOOK AT THE QUOTE, THE
UNITED STATES VERSUS RICHARD NIXON, IT SAID THE EXECUTIVE
RANCH HAS EXCLUSIVE AUTHORITY AND ABSOLUTE DISCRETION WHETHER
TO PROSECUTE A CASE. HE REFERS BACK TO THAT. THAT IS IN THE
CIVIL CONTEXT. THIS CAME UP IN THE IMMIGRATION
CONTEXT. THAT IS STILL SOMETHING I WILL
NOT COMMENT ON DIRECTLY.>>ME POINT OUT, I APOLOGIZE FOR
INTERRUPTING. IN YOUR DEFENSE, YOU SAID UNDER THE CONSTITUTION,
YOU CITED JUSTICE SCALIA AS YOUR AUTHORITY. THEY MAY DECLINE TO ENFORCE THE
STATUTE THAT REGULATES PRIVATE INDIVIDUALS WHEN IT IS DEEMED
UNCONSTITUTIONAL. UNIT THE COURT HAS HELD OR WOULD HOLD THE COURT
CONSTITUTIONAL. I WANT TO TALK ABOUT THE SECOND
AMENDMENT. ALSO YOUR POSITION ON GUN VIOLENCE PREVENTION. MY
STATE HAS A TRAGIC HISTORY WITH THIS ISSUE. 90 PEOPLE EVERY DAY DIE FROM IT. I AM DEEPLY TROUBLED BY YOUR POSITION ON THIS ISSUE
THAT HISTORY AND TRADITION GOVERN HERE. THAT ANY WEAPON IN COMMON USE IS
PROTECTED. THE REASON THAT SOME WEAPONS ARE NOT IN COMMON USE IS
THEY ARE BANNED LIKE MACHINE GUNS. IF OUR STANDARD WILL BE WHETHER
ASSAULT WEAPONS ARE IN COMMON USE, WE WILL HAVE MORE AND MORE
OF THEM. THEY ARE COMMONLY USED TO KILL PEOPLE. THAT IS WHAT
THEY WERE DESIGNED TO DO. I WANT YOUR EXPLANATION AS TO HOW
POSSIBLY YOU CAN JUSTIFY REQUIRING STATUTE BE LONG-STANDING AND
TRADITIONAL AND CANNOT IN ANY WAY DETECT PEOPLE FROM ASSAULT
WEAPONS THAT ARE AS YOU PUT IT IN COMMON USE. THERE IN COMMON
USE ONLY BECAUSE THEY ARE NOT REGULATED FOR PUBLIC SAFETY.>>WHEN YOU ARE DONE ANSWERING THAT
QUESTION, I WILL CALL ON SENATOR FLAKE.
>>FIRST AT THE END OF MY OPINION, I POINTED OUT THAT I
GREW UP IN THIS AREA. THIS AREA HAS BEEN PLAGUED BY GANG AND DRUG VIOLENCE. IT HAS BEEN KNOWN
AS THE MURDER CAPITAL OF THE WORLD. I UNDERSTAND AND
APPRECIATE YOUR INITIAL COMMENT. SECONDLY, WHERE DID I GET THAT.
I GOT IT OUT OF THE SUPREME COURT’S OPINION WHICH USES THOSE
EXACT PHRASES. I PASSIONATELY DISAGREE WITH THE
SUPREME COURT’S DECISION IN McDONALD. IS A LOWER COURT
JUDGE, I AM FOLLOWING ALL THE PRECEDENT. I HAVE TO APPLY ALL OF THE
PRECEDENT. I DID THAT. I THOUGHT THE TEST BUT I WAS APPLYING WAS
APPROPRIATE IN THAT CASE. I MADE CLEAR THAT IT ALLOWED A LOT OF GUN
REGULATION. CONCEALED CARRY WAS IDENTIFIED
THERE. PROHIBITING GUNS BY PEOPLE WITH MENTAL ILLNESS. THAT
WAS OPERATED ON A SIDE. — THAT WAS ALL PRE-IDENTIFIED. AS CHIEF JUSTICE SAID, YOU
REASON BY ANALOGY FROM HISTORICAL RECEPTION DESK MAKE
EXCEPTIONS AND REGULATIONS. THAT IS SOMETHING THAT I THINK
IS APPROPRIATE AND I SAID IT IN MY OPINION. ULTIMATELY I HAD TO
APPLY THE TEST AND I UNDERSTAND PEOPLE MAY DISAGREE WITH THE
SUPREME COURT OPINION OR HOW I APPLIED IT. I TRIED TO DO IT AS
FAITHFULLY AS I COULD. ? WAIT A MINUTE. —
>>WAIT A MINUTE. YOU HAVE BEEN ATTACKED FOR THE
SHORT FOOTNOTE YOU WROTE IN THE AFFORDABLE CARE ACT CASE. YOU ACTUALLY ORDERED THE
EXECUTIVE BRANCH TO COMPLY WITH THE LAW. YOU WROTE, IT IS NO
OVERSTATEMENT TO SAY THAT THE CONSTITUTIONAL SYSTEM OF
SEPARATION OF POWERS WOULD BE SIGNIFICANTLY ALTERED IF WE WERE TO ALLOW EXECUTIVE
AND INDEPENDENT AGENCIES TO DISREGARD FEDERAL LAW. OBVIOUSLY
YOU DO NOT THINK THE PRESIDENT HAS A BLANK CHECK TO IGNORE THE
LAW.>>ALWAYS HAPPY TO DEFER. YOU MENTIONED YOUR MOTHER. AS ONE OF YOUR JUDICIAL HEROES.
WHO ELSE WOULD YOU PUT ON THAT LIST? WHAT PEOPLE DO YOU ADMIRE?
ALSO WHY?>>MY MOM AS YOU MENTIONED, TRIAL JUDGE, REAL PEOPLE IN THE
REAL WORLD. IT WAS WELL RESPECTED AS A
PROSECUTOR AND AS A JUDGE. CASES HAVE REAL-WORLD
CONSEQUENCES. JUSTICE KENNEDY MODELED INDEPENDENCE THROUGHOUT
HIS CAREER. YOU CAN LOOK IN 30 YEARS OF HIS
OPINIONS. WHAT IS THE HARSHEST THING? YOU CANNOT FIND IT. JUST
A MODEL OF CIVILITY IN HIS JUDICIAL OPINIONS. ALWAYS SO
COURTEOUS TO COUNSEL. IN HIS PUBLIC SPEECHES. HE SHOWED BY EXAMPLE HOW TO
CONDUCT ONESELF AS A JUDGE OFF OF THE BENCH. WHEN I BECAME A JUDGE, HE SAID
YOU’RE GOING TO GO BACK AND SOON YOU WILL FEEL LONELY. YOU HAVE
BEEN DOING THIS JOB AT THE WHITE HOUSE AND IT IS ENERGETIC. YOU
WILL FEEL QUIET. HE’S HAD TO GET OUT AND TEACH. HE HAS TAUGHT
SINCE 1975 AND HE BECAME A NINTH CIRCUIT JUDGE. THE LEGACY OF LIBERTY THAT HE
LEFT OR THE UNITED STATES IS WRITTEN ALL THROUGH THE U.S. FOR
WHAT. JUSTICE KOLEA IS SOMEONE THAT I KNEW. HE CHANGED AND FOCUS OF THE
TEXT. IT WAS ROOTED IN HIS APPRECIATION OF THE
CONSTITUTION. IT IS TRUE THAT DECISIONS WHERE HE RULED IN WAYS
THAT PEOPLE DID NOT EXPECT, PROTECTION OF THE FOURTH
AMENDMENT FOR EXAMPLE, THERMAL IMAGING, THE JONES CASE ON GPS
TRACKING, THE FIRST AMENDMENT JOHNSON. HE WAS A FIERCE PROTECTOR OF
INDIVIDUAL LIBERTY. TO PEOPLE WHO HAD EXPERIENCE IN
THE EXECUTIVE BRANCH AND CAME TO THE SUPREME COURT. I THINK THAT
BECAME MODELS OF INDEPENDENCE. BARNETT AS WELL. REHNQUIST. A FIRM BUT AFFABLE MANNER. I
WROTE ABOUT HIM AND GAVE A SPEECH. I REFERRED TO THE FACT
THAT BRETHREN WAS HIS BOOK THAT CAME OUT IN THE 70s. THE SOURCES
WERE VERY CRITICAL OF THE SUPREME COURT. HE IS REFERRED TO BY ALL OF
THESE TERMS THAT EMPHASIZES COLLEGIALITY. THAT IS WHY HE WAS
SUCH A HERO. I WILL END IT WITH, ANY TIME YOU LOOK AT THE
CONSTITUTION AND THINK ABOUT PEOPLE THAT HAVE AN EFFECT ON
IT, AND WHAT IT MEANS TODAY, YOU HAVE TO IDENTIFY TODAY. THURGOOD MARSHALL BECAUSE OF
WHAT HE DID AS A JUSTICE. HE HAD A HUGE RECORD AS A JUSTICE. HE WAS A REAL-WORLD CONSEQUENCES
KIND OF PERSON. I PULLED UP AN ARGUMENT ONE TIME IN A FIRST
AMENDMENT CASE THAT HE WAS ARGUING IN THE EARLY 70s. IT WAS
ABOUT ADS ON A BUS. IT WAS POLITICAL ADS. THE QUESTION WAS WHETHER THEY WERE
PERMISSIBLE. THE WORRY WAS THAT THEY WOULD BE IDENTIFIED.
THURGOOD MARSHALL STARTED THE ARGUMENT, WHY ARE YOU BANNING
THEM?? PEOPLE MIGHT — PEOPLE MIGHT THINK THE CITY IS
ENDORSING A CANDIDATE. HE SAID TO DO YOU THINK PEOPLE ARE THAT
STUPID? HE GOT THE REAL-WORLD CONSEQUENCES. HIS LEGACY IS
TOWERING IN TERMS OF WHAT HE DID AS A LITIGATOR. HE HELPED BRING
THE END OF — VERSUS FERGUSON. I ALWAYS THINK OF THURGOOD
MARSHALL’S LEGACY AS WELL. THAT IS A MUCH MORE LONG-WINDED
ANSWER THAN YOU EXPECTED. >>THAT IS IMPORTANT INSIGHT. I
APPRECIATE IT. I SAT NEXT TO ANTHONY KENNEDY
LAST SATURDAY FOR JOHN McCAIN’S FUNERAL. WE ALL HAVE THE SAME
OPINION. IS COLLEGIALITY. THAT IS IMPORTANT. WE WILL TALK ABOUT
THAT LATER. I NOTED YESTERDAY SOME CONCERNS. BACK TO THE REAL
WORLD. AN ADMINISTRATION THAT DOES NOT
SEEM TO UNDERSTAND OR APPRECIATE THE SEPARATION OF POWERS OR THE
RULE OF LAW. I WORRY THAT THE PRESIDENT, THE HEAD OF OUR
EXECUTIVE RANCH MAYBE USING EXECUTIVE POWER TO ADVANCE
PERSONAL, POLITICAL INTERESTS , NOW MORE THAN EVER WE HAVE TO
ENSURE THAT INSTITUTIONS ARE INDEPENDENT AND OUR FIRM AGAINST
ENCROACHING PARTISAN POLITICKING. ALEXANDER HAMILTON FAMOUSLY
WROTE IN 78. JUDICIARY IS THE LEAST DANGEROUS
BRANCH OF GOVERNMENT. BASED ON THE UNDERSTANDING THAT THE
JUDICIAL BRANCH LACKS THE POWER OF THE EXECUTIVE
BRANCH AND THE PASSION OF THE LEGISLATURE. I BELIEVE THAT IF
YOU ARE CONFIRMED TO THE SUPREME COURT, I DO NOT BELIEVE THAT YOU
WOULD ERODE JUDICIAL INDEPENDENCE OR DISRUPT THE
SEPARATION OF POWERS BETWEEN THE THREE BRANCHES. YOU HAVE BEEN
DISCUSSING YOUR REFERENCE FOR THE SEPARATION OF POWERS BUS
TODAY. PARTICULARLY THE IMPORTANCE OF
KEEPING THE JUDICIARY THE LEAST DANGEROUS BRANCH. BY MAKING SURE
THAT IT STAYS A POLITICAL — I WILL DISCUSS THAT IN A MOMENT. I AM CONCERNED ABOUT THE
EXECUTIVE BRANCH AND THE POWERS THEREIN. I REITERATE SOME OF THE
CONCERNS. IN RESPONSE, YOU WANT US THROUGH SOME OF THE
DOCUMENTS. THE CONSTITUTION AND PAPERS THAT ENDOW THE PRESIDENT
WITH POSITIVE POWERS. YOU HAVE ALSO DISCUSSED TODAY, CASES. YOU
MENTIONED YOUNGSTOWN. U.S. VERSUS NIXON. THOSE THAT YOU
ADMIRE BECAUSE THEY INVOLVE THE JUDICIARY STANDING OUT TO THE
PRESIDENT. ALSO PUTTING LIMITS ON EXECUTIVE POWER. THESE
PRECEDENTS RESTRAIN PRESIDENTIAL POWER. WHAT LIMITS ARE THERE, IF
ANY THAT WOULD PREVENT A PRESIDENT FROM CENTRALIZING
EXECUTIVE POWER AND USING IT FOR HIS OWN POLITICAL OR PERSONAL
PURPOSES? WHAT PROTECTIONS ARE THERE. STATUTORY, CONSTITUTIONAL
, JUDICIAL THAT ARE BUILT INTO THE SYSTEM. IF YOU WOULD TALK A LITTLE BIT
ABOUT THAT. WE HAVE TALKED ABOUT THE POSITIVE THINGS THAT GIVE A
PRESIDENT OR ENDOW THE EXECUTIVE WITH OUR. WHAT CONSTRAINTS ARE
THERE?>>FIRST ARE THE CONSTRAINTS
BUILT INTO THE CAN SOLUTION — BUILT INTO THE CONSTITUTION. THE
SENATE CONFIRMATION POWER WHICH IS OFTEN USED AS A WAY TO
RESTRAIN THE APPOINTMENT OF PEOPLE FOR
EXECUTIVE OFFICERS. THEY ARE ALSO BUILT INTO THE
CONSTITUTIONAL, ULTIMATE REMEDIES IN THE CONSTITUTION.
THERE ARE REMEDIES FOR HOW JUDGES CAN BE REMOVED. HOW
MEMBERS OF CONGRESS CAN BE REMOVED. THOSE ARE THE ULTIMATE
CHECKS THAT ARE BUILT INTO THE SYSTEM
FOR ALL OF US. THERE IS NO ONE THAT IS GUARANTEED A PERMANENT
TIME BECAUSE OF THE ULTIMATE CHECKS. THERE ARE STATUTES BEYOND THE
CONSTITUTION. I DID NOT MEAN THAT TO BE AN EXHAUSTIVE LIST.
THERE ARE STATUTES THAT REGULATE PRESIDENTIAL AND EXECUTIVE
BRANCH CONDUCT IN ALL SORTS OF WAYS. WHETHER IT BE STATUTE THAT
REGULATE MORE POWER, SURVEILLANCE, DETENTION AND
INTERROGATION. STATUTES THAT REGULATE IN THE DOMESTIC ARENA AND ALSO THE OPERATIONS OF
GOVERNMENT. FREEDOM OF INFORMATION ACT, FEDERAL
ADVISORY, INSPECTOR GENERAL ACT. THEY ARE ALL EFFORTS BY CONGRESS TO MAKE SURE THE EXECUTIVE
BRANCH DOES NOT OPERATE IN A WAY THAT CONGRESS DISAPPROVES UP.
THE NORMS ARE IMPORTANT. MEDICINE TALKS ABOUT THAT.
HISTORICAL PRACTICES RELEVANT TO JUDICIAL DECISION-MAKING. WE HAVE SEEN A LOT OF JUDICIAL
DECISION. WHEN I WORKED IN THE EXECUTIVE RANCH, ONE OF THE
QUESTIONS I ALWAYS ASKED AND I ASKED AS A JUDGE, HOW IS THIS
BEEN DONE BEFORE? TWO THINGS I ALWAYS TELL
STUDENTS, WHAT IS THE TEXT? REGULATION, CODE, STATUTE,
CONSTITUTION. HOW HAS IT BEEN DONE BEFORE? THAT IS A QUESTION
OF PRESIDENT OR NORM WITHIN THE EXECUTIVE BRANCH OR NORMS WITHIN
CONGRESS. THOSE ARE IMPORTANT AS WELL. I THINK THERE IS CONSTITUTIONAL
AND STATUTORY STRUCTURES AS WELL AS — THEY ALL CONSTRAIN CONGRESS
AND THE EXECUTIVE BRANCH AND THE JUDICIARY AS WELL. ? HE DISCUSSED THE DANGER OF
INDEPENDENT AGENCIES THAT MASK TOO MUCH POWER IN ANY
INDIVIDUAL. WITH THAT NOT BE TRUE WITH THE EXECUTIVE AS WELL?>>THAT WAS THE DEBATE AT THE
CONSTITUTIONAL CONVENTION. WHETHER TO HAVE A PLURAL
EXECUTIVE. OR TO HAVE A SINGLE PRESIDENT. ULTIMATELY THEY
DECIDED TO GO WITH — THEY ULTIMATELY CONVINCED THE
OTHERS TO GO A SINGLE PRESIDENT. AT THE SAME TIME THE CONCERN HE
JUST DISCUSSED — YOU JUST DISCUSSED WAS RAISED AT THE
TIME. THAT IS MY HAMILTON WROTE AND PUT THE CHECKS INTO THE
CONSTITUTION AND WHY HE WROTE FEDERAL 69 TO POINT OUT FOR THE
PEOPLE WHO ARE PUTTING ON RATIFICATION, ALL THE
DIFFERENCES BETWEEN A KING AND A MONARCHY. THAT FEAR HAS EXISTED
THROUGHOUT HISTORY. IT IS WHY FOR EXAMPLE THE
SUPREME COURT — PRESIDENT JEFFERSON OF COURSE
IS THE ONE THAT LOSES IN MADISON. RESIDENT NIXON LOSES IN
THE U.S. VERSUS RICHARD NIXON.>>YOU HAVE MENTIONED A COUPLE
OF TIMES YOU LIVE IN THE REAL WORLD.
>>I TRY. >>LET ME BRING IT TO THE REAL
WORLD. THIS WEEK THERE WAS A TWEET BY THE PRESIDENT THAT SAID
TO LONG-RUNNING OBAMA ERA INVESTIGATIONS UP TO POPULAR
REPUBLICAN CONGRESSMAN WERE BROUGHT TO A
WELL-PUBLICIZED CHARGE AHEAD OF THE MIDTERMS. BY THE JUSTICE
DEPARTMENT. TO EASY WINS. NOW IN DOUBT BECAUSE THERE IS NOT
ENOUGH TIME. GOOD JOB JEFF. SHOULD A PRESIDENT BE ABLE TO
USE HIS AUTHORITY TO PRESSURE EXECUTIVE OR INDEPENDENT
AGENCIES TO CARRY OUT DIRECTIVES FOR YEARLY POLITICAL — PURELY
POLITICAL PURPOSES?? I UNDERSTAND THE QUESTION. ONE OF
THE PRINCIPLES OF JUDICIAL INDEPENDENCE OF SITTING JUDGES AND NOMINEES
NEED TO BE CAREFUL ABOUT IS COMMENTING ON CURRENT EVENTS OR
POLITICAL CONTROVERSY. >>I DO NOT THINK WE WANT JUDGES
COMMENTING ON THE LATEST POLITICAL CONTROVERSY. THAT
WOULD ULTIMATELY LEAD THE PEOPLE TO DOUBT WHETHER WE ARE
INDEPENDENT OR POLITICIANS AND RUBS. MAINTAIN THE STRICT
INDEPENDENCE OF THE — POLITICIANS IN ROBES. MAINTAIN A
STRICT INDEPENDENCE. >>FORGET I JUST SAID THAT. JUST
ANSWER THIS. SHOULD A PRESIDENT USE HIS OR HER AUTHORITY TO
PRESSURE EXECUTIVE OR INDEPENDENT AGENCY OFFICIALS
INTO CARRYING OUT DIRECTIVES FOR YEARLY POLITICAL PURPOSES?
>>THAT HYPOTHETICAL IS DIRECTLY ATTACHED TO CURRENT
EVENTS. I HESITATE. I DO NOT WANT TO COMMENT ON
SOMETHING THAT IS NOT A CASE OR AN ISSUE. I HAVE THOUGHT ABOUT
THIS PRINCIPLE AS WELL. I THINK ABOUT CHIEF JUSTICE
ROBERTS AND I THINK AN UNDERAPPRECIATED ASPECT IS HOW
HE HAS STOOD UP FOR THE JUDICIARY AND TRY TO KEEP IT OUT
OF POLITICS FOR WHAT HE DOES OFF OF THE BENCH AS WELL AS ON THE
BENCH. HE SETS THE TONE FOR THE ENTIRE AMERICAN JUDICIARY. THAT
TONE OF NOT GETTING INVOLVED IN POLITICS AND THE NEED TO STAY
NOT JUST AWAY FROM THE LINE BUT THREE ZIP CODES AWAY. I
UNDERSTAND BUT I RESPECTFULLY DECLINE.>>LET ME REPHRASE IT A
DIFFERENT WAY. IF YOU HAVE AN EXECUTIVE THAT IS ABUSING HIS OR
HER AUTHORITY BY INSTRUCTING INDEPENDENT AGENCIES OF
GOVERNMENT TO PURSUE POLITICAL ENDS, ARE THERE ANY REMEDIES
OTHER THAN THE ONE THAT YOU MENTIONED? OTHER THAN POLITICAL
REMEDIES INVOLVING CONGRESS. IS THERE SOMETHING SHORT OF THAT? I
UNDERSTAND YOUR AVERSION. YOU ARE A LITTLE BIT MORE
SANGUINE ABOUT SPECIAL COUNSEL. ONE OF THE REMEDIES ARE THERE?
WHAT OTHER CONSTRAINTS ARE THERE ON A PRESIDENT?
>>THE CONSTRAINTS ARE ON THE EXECUTIVE GENERALLY. THEY ARE
IMPORTANT ONES. THE APPROPRIATIONS POWER IS A HUGE
CHECK. THAT IS AN ENORMOUS CHECK . CONFIRMATION, THE ULTIMATE CHECK
THAT YOU REFER TO IS ALWAYS PART OF THE SYSTEM. THAN TO BE CLEAR ON THE SPECIAL COUNSEL SYSTEM
THAT I SPOKE APPROVINGLY OF IN THE 1999 ARTICLE AND I
REFERRED TO IN MY OPINION JUST LAST YEAR, THE TRADITIONAL
SYSTEM. THAT EXISTS. I HAVE SAID WHAT I SAID ABOUT THE OLD
INDEPENDENT COUNSEL STATUTE. THAT HAD A LOT OF PARTS TO IT.
IF THE CASE CAME BEFORE ME THE HAVE A DIFFERENT STATUTE THAT
WAS ENACTED, I WOULD HAVE AN OPEN MIND ABOUT CONSIDERING THE
ARGUMENTS IN FAVOR OF THAT AND AGAINST IT. THAT POSSIBILITY IS PRESENT TO
THE CONGRESS OF COURSE. >>IF THE PRESIDENT COULD FIRE
INDEPENDENT COUNSEL FOR SPECIAL COUNSEL, IS THAT ANY RESTRAINT
AT ALL? >>THAT HYPOTHETICAL WAS TESTED
I SUPPOSE IN SEPTEMBER 1973. I MAY NOT HAVE THE MONTH RIGHT.
IN 1973 HOWEVER.>>THANK YOU. WE WILL MOVE ON. THE CONVERSATION WE HAD ABOUT
SEPARATION OF POWERS. THAT LEADS TO A HOST OF OTHER RELATED LEGAL
ISSUES INCLUDING CHEVRON DEFERENCE, AGENCY OVERREGULATION
. IN YOUR OPINIONS YOU HAVE SAID YOU HAVE CONCERNS WITH CHEVRON
DEFERENCE. YOU HAVE EXPLAINED THAT IT CAN ALLOW EXECUTIVE
AGENCIES TO STRETCH THE MEANING OF THE LAW BEYOND WHAT CONGRESS
INTENDED. WE HAVE CERTAINLY SEEN THAT. YOU HAVE ALSO ENCOURAGED
CONGRESS, — IT CAN ALSO ENCOURAGED
CONGRESS THAT IT CAN ABDICATE OUR BY PUTTING ITS LAWMAKING
ABILITIES TO THE OTHER TWO BRANCHES. YOU ARE DISCUSSING WITH ANOTHER
SENATOR TO AUTHORIZE WAR. I HAVE HAD THAT FRUSTRATION FOR YEARS
MYSELF. SENATOR TIM KANE AND OTHERS TRYING TO UNSUCCESSFULLY EXPRESS
CONGRESS’S OPINION AND PROVIDE A TEMPLATE AT LEAST IF NOTHING
ELSE FOR THE EXECUTIVE BRANCH TO FOLLOW. THAT IS IN TERMS OF
THESE LONG AND UNAUTHORIZED WARS. THAT ASIDE, YOUR OPINION
SUGGESTS THAT A CHEVRON ANALYSIS AS A TWO-PART TEST. ONE
DETERMINING STATUTORY AMBIGUITY AND IF SO, DETERMINING WHETHER
AN AGENCIES DETERMINATION OF THE STATUTE IS REASONABLE. THE REAL
QUESTION IS WHEN IT COMES TO CHEVRON IS NOT TO JOKE DOESN’T
JUST DEFER TO AN AGENCY BUT HOW A JUDGE APPROACHES AMBIGUITIES.
HOW DO YOU KNOW WHEN IT IS AMBIGUOUS?
>>THAT IS A HUGE PROBLEM. THAT IS THE HEART OF THE CONCERN
I HAVE. THAT DEPEND ON A THRESHOLD
FINDING OF AMBIGUITY. AFTER SEVERAL YEARS AS A JUDGE,
I THOUGHT ABOUT WHY IS IT THAT I DISAGREE WITH A COLLEAGUE? WHAT
IS AT THE ROOT OF THE DISAGREEMENT? WE ARE BOTH
INDEPENDENT JUDGES AND WHY ARE WE DISAGREEING? IT OCCURRED TO
ME THAT IN SOME CASES THE
DISAGREEMENT IS NOT ABOUT THE BEST MEANING OF THE STATUTE OR
WHAT THE PRESIDENT SAYS. THE DISAGREEMENT ABOUT WHETHER
SOMETHING IS AMBIGUOUS. THAN I WOULD THINK ABOUT GOING TO WHAT
I BELIEVE IN. HOW CAN WE GET NEUTRAL
PRINCIPLES FOR DETERMINING AMBIGUITY? IT TURNS OUT, IT IS
REALLY HARD TO GET NEUTRAL PRINCIPLES FOR HOW MUCH
AMBIGUITY IS ENOUGH. THERE ARE TWO PROBLEMS AT THE HEART OF
THAT. FIRST OF ALL, JUST TO REASON THROUGH IT. IS 60%
AMBIGUITY NOW FOR 80% OR 95%. WAS THE AMBIGUITY TRIGGER SO TO
SPEAK. SECOND, WHEN APPLYING WHATEVER TRIGGER YOU COME UP
WITH, HOW THE HECK DO YOU FIGURE OUT WHETHER A PARTICULAR WORD OR
PHRASE OR STATUTORY PROVISION CROSSES THAT AMBIGUITY
THRESHOLD. THIS IS SOMETHING THAT JUSTICE KAGAN AND JUSTICE
SCALIA BOTH HAVE TALKED ABOUT IN THE PAST. JUSTICE KAGAN ACTUALLY
SAID AT THE SAME SPEECH WHERE SHE SAID — SHE SAID SOME PEOPLE
FIND AMBIGUITY MORE QUICKLY THAN OTHERS DO. I THINK THAT IS A
TRUE STATEMENT. IS AN OBSERVATION OF HUMAN NATURE. IT
LEAVES THE JUDGES UMPIRE VISION IN REAL TROUBLE . IF THERE ARE NO NEUTRAL
PRINCIPLES TO DETERMINE AMBIGUITY THEN THIS IS NOT A
MINOR DEAL. IF YOU ARE IN A CASE ABOUT DEFERENCE TO AN AGENCY,
THE FATE OF HUGE REGULATIONS — TO GIVE YOU AN EXAMPLE, THREE
JUDGES CAN SIT AROUND AND ALL THREE CAN AGREE THAT THE AGENCY’S READING OF THE
STATUTE IS NOT THE BEST BUT TO JUDGES WILL SAY I THINK IT IS
AMBIGUOUS AND THE THIRD ONE WILL SAY I DO NOT THINK SO. THEN THE
TWO WILL DEFER TO THE AGENCY. THAT CAN BE A BILLION-DOLLAR
DECISION. THE FATE OF HUGE REGULATIONS, RISE OR FALL JUST
ON THAT. ONE JUDGE WAS HALF THINK IT IS NOT AMBIGUOUS AND I
THINK IT IS. IN MY EXPERIENCE, THERE IS NOT A GREAT NEUTRAL
PRINCIPLE. TO MY MIND THAT IS A CONCERN IF YOU HAVE, AS I DO,
THE IDEA THAT JUDGES SHOULD BE UMPIRES AND HAVE NEUTRAL RULES.>>YOU TALKED A LITTLE BIT ABOUT 5/4 DECISIONS. THEY HAVE THE
SAME WEIGHT AND PRESIDENT AS THOSE DECIDED UNANIMOUSLY. KILO IN 2005 WAS A 5/4 DECISION. THOSE OF US IN THE WEST ARE
CONCERNED ABOUT ISSUES LIKE THAT. ARIZONA FOR EXAMPLE IS 85%
PUBLICLY OWNED WHEN YOU TAKE STATE, FEDERAL AND TRIBAL
PROPERTY. ONLY ABOUT 15% OF THE STATE IS IN PRIVATE HANDS.
DECISIONS THAT THE FEDERAL GOVERNMENT MAKES WHETHER THERE
IS S WHETHER IT IS LEGISLATION BRANCH — LEGISLATIVE BRANCH OR
JUDICIARY, AND HAS OUTSIDE IMPACT. YOU SERVING ON THE DC CIRCUIT,
ADDRESSEES ISSUES MORE THAN PERHAPS OTHERS. YOU WANT TO TALK
ABOUT THAT. ABOUT SOME OF THE WESTERN ISSUES WHERE THESE
ISSUES AND KILO IN PARTICULAR? >>BELOW IS SOMETHING THAT WAS CONTROVERSIAL IN EAST
AS WELL. ALSO IN THE MIDWEST. IN TERMS OF THAT DECISION. I KNOW IT IS A SPECIAL CONCERN
IN THE WEST. TO YOUR POINT, I HAVE HAD CASES
INVOLVING REGULATIONS. A COUPLE OF EXAMPLES ARE ONE WHERE A
CRITICAL HABITAT BASE ON A — I WROTE IN THAT CASE,
THE STATUTORY TERM WAS OCCUPIED AND THE FACT THAT YOU COULD NOT
SEE IT TO THE NAKED EYE. THE RUN THREE YEARS EARLIER WAS
NOT ENOUGH TO DESIGNATE A HUGE SWAP. I HAVE THAT CASE AND I WAS
APPLYING THE STATUTE AS I SAW IT. I HAD ANOTHER CASE,
CARPENTER’S CASE. IT IS THE DESIGNATION OF LAND IN
THE WEST. THE ISSUE INVOLVED STANDING. SOMEONE WHO IS
DEPRIVED OF THEIR BUSINESS BECAUSE OF THE DESIGNATION. I
FOUND STANDING BECAUSE I THINK IT IS IMPORTANT
TO UNDERSTAND WHEN SOMETHING LIKE THAT HAPPENS, THERE ARE
LOTS OF AFFECTED PARTIES. I HAVE TALKED ABOUT THIS AND OTHER
CASES AS WELL. WHEN THE POLICY IS NOT MY CONCERN BUT ASSESSING
A STANDING OR A RETROACTIVITY , YOU NEED TO THINK ABOUT THE
AFFECTED PARTIES SO BUSINESSES, WORKERS, THE COAL MINERS OR THE TIMBER INDUSTRY. I AM
SYMPATHETIC TO THE FACT THAT WESTERNERS DO NOT THINK PEOPLE
IN THE EAST ALWAYS UNDERSTAND WHAT IS GOING ON WITH THOSE
DESIGNATIONS. >>NOT EVEN REMOTELY.
>>I GRANT YOU THAT. ? OR EASTERNERS READING THE
OPINION, THE SIZE OF THE DESIGNATION IS TWICE THE SIZE OF
THE STATE OF NEW JERSEY. IF YOU ARE AND EASTERNER IMAGINE
DRIVING THE NEW JERSEY TURNPIKE AND BACK DOWN. THEN YOU WILL
HAVE SOME SENSE OF WHAT IT WOULD TAKE TO DRIVE ACROSS THIS
DESIGNATION OF LAND. THAT IS MY WAY OF SAYING OR TRYING TO
APPRECIATE WHAT THE EFFECT OF SOME OF THE THINGS IN THE WEST. WHEN YOU’RE NOT ON THE SUPREME
COURT, YOURS LOOK TO THE SUPREME COURT. THOSE PRECEDENTS ARE OF
EQUAL WEIGHT. WHEN YOU’RE ON THE SUPREME COURT, PRESIDENT IS ONLY
PRESIDENT UNTIL IT IS NOT ANYMORE. UNTIL THERE IS A
DECISION MADE. I QUESTION IS, A DECISION LIKE KILO DECIDED IN
2005 A 5/4 DECISION. DOES IT HAVE THE SAME WEIGHT AS A TEXAS
VERSUS JOHNSON FROM 1989? WHAT WEIGHT TO GIVE IT ONCE YOU
ARE ON THE HIGH COURT? >>YOU START WITH PRINCIPLES THAT
THE SUPREME COURT ITSELF HAS ARTICULATED ABOUT PRECEDENT. THOSE PRINCIPLES LOOK AT WHETHER
THE DECISION IS GRIEVOUSLY WRONG OR WHETHER THE DECISION IS
INCONSISTENT WITH OTHER LEGAL PRINCIPLES. YOU LOOK AT THE REAL
WORLD CONSEQUENCES. YOU LOOK ALSO AT THE RELIANCE INTEREST. ONE OF THE THINGS I WILL SAY
ABOUT KILO, THIS IS KIND OF AN OFFSHOOT OF THE QUESTION. A LOT
OF STATES IN THE WAKE OF KILO HAVE ENACTED OR THE COURTS HAVE
INTERPRETED THEIR OWN CONSTITUTIONS IN A WAY THAT
PREVENTS THE TAKING OF PRIVATE PROPERTY
FOR WHAT APPEARS TO BE NOT THE TRADITIONAL PUBLIC USES BUT
GOING TO ECONOMIC DEVELOPMENT FOR PRIVATE PARTIES. I HAVE
CITED THIS BEFORE BUT THE JUDGE ON THE SIX CIRCUIT HAS A BOOK ON
PERFECT SOLUTIONS. HOW STATE CONSTITUTIONS CAN END — AND
ENHANCE PROTECTION OF INDIVIDUAL LIBERTY EVEN BEYOND WHAT THE
SUPREME COURT HAS INTERPRETED THE FEDERAL CONSTITUTION TO BE.
THAT IS NOT A DIRECT ANSWER BUT IT IS ANOTHER WAY THAT THE
PEOPLE WHO ARE IN FACT DID — AFFECTED CAN FIND
CONSERVATION. >>I HAVE LETTERS OF OPPOSITION TO
BRETT KAVANAUGH’S — ? THESE ARE FROM EARTH JUSTICE,
ABACUS, 63 WOMEN LAWYERS AND SUPPORTERS OF HELP, FROM SECULAR
COALITION FOR AMERICA FROM ASIA-PACIFIC AMERICAN ADVOCATES
AS WELL. I HAVE TO ENTER THESE LETTERS INTO THE RECORD.>>THE JUDICIAL BRANCH IS NOT
IMMUNE FROM THE WIDESPREAD ROB HIM OF SEXUAL HARASSMENT AND
ASSAULT. AS PART OF MY RESPONSIBILITY AS
A MEMBER OF THE COMMITTEE IS TO ENSURE THE FITNESS OF NOMINEES
FOR A LIFETIME APPOINTMENT TO THE FEDERAL BENCH, I ASKED TWO
QUESTIONS. FIRST, SINCE HE BECAME AN ADULT HAVE YOU EVER
MADE UNWANTED REQUESTS FOR SEXUAL FAVORS OR COMMITTED ANY
VERBAL OR PHYSICAL HARASSMENT OR ASSAULT OF A SEXUAL NATURE?
>>NO.>>HAVE YOU EVER FACED
DISCIPLINE OR ENTERED INTO A SETTLEMENT RELATED TO THIS KIND
OF CONTACT THAT MAY CONDUCT? >>NO.
>>I STARTED ASKING THIS BECAUSE IT IS HARD TO HOLD LIFETIME
MEMBERS OF THE FEDERAL BENCH ACCOUNTABLE. WHILE SENATOR HATCH ASKED
QUESTIONS ABOUT THIS, I HAVE ADDITIONAL QUESTIONS. LAST
DECEMBER 15 WOMEN CAME FORWARD AND SHARED STORIES OF SEXUAL
HARASSMENT AND ASSAULT BY A FORMER JUDGE, ALEX KACZYNSKI.
SOME OF THEM ARE DETAILED ON THE CHART. VERY EXPLICIT ALLEGATIONS OF
HARASSMENT AND ASSAULT. WE KNOW FROM THE REPORTING THAT HIS
BEHAVIOR WAS EGREGIOUS AND PERVASIVE. IT WENT ON FOR MORE
THAN 30 YEARS. IT AFFECTED LAW CLERKS, PROFESSORS, LAW
STUDENTS, LAWYERS AND IN AT LEAST ONE CASE ANOTHER FEDERAL
JUDGE. THOSE ARE JUST THE WOMEN THAT CAME FORWARD. HIS BEHAVIOR
BECAME SO NOTORIOUS THAT PROFESSORS BEGAN TO WARN FEMALE
STUDENTS NOT TO APPLY FOR CLERKSHIPS WITH HIM. HIS
BEHAVIOR IN THIS WE GRIZZARD — REGARD WAS A SECRET. AFTER THEY
WENT PUBLIC, HE ABRUPTLY RESIGNED WHICH EFFECTIVELY SHUT
DOWN THE FEDERAL INVESTIGATION INTO THE MISCONDUCT. I DO NOT
THINK THIS WAS A COINCIDENCE. IN 2008 IN CONNECTION WITH ANOTHER
INVESTIGATION, THE LA TIMES WROTE A STORY ABOUT SOMETHING
CALLED THE EASY RIDER GAG LIST. AN EMAIL GROUP THAT THE JUDGE
USED FOR A STEADY DIET OF TASTELESS HUMOR. THE REPORT
DESCRIBES THE LIST MADE UP OF FRIENDS AND ASSOCIATES INCLUDING
HIS LAW CLERKS, COLLEAGUES ON THE FEDERAL BENCH, PROMINENT
ATTORNEYS AND JOURNALISTS. SENATOR HATCH ASKED IF YOU WERE
ON THIS LIST WHERE HE WOULD SEND INAPPROPRIATE MATERIAL? YOUR
RESPONSE WAS THAT YOU DO NOT REMEMBER ANYTHING LIKE THAT. ARE
YOU TELLING US THAT YOU MAY HAVE RECEIVED A STEADY DIET OF THE
PEOPLE ON THE LIST HAVE DESCRIBED AS A LOT OF VULGAR
JOKES, VERY DIRTY JOKES BUT YOU DO NOT REMEMBER?
>>NO. I DO NOT REMEMBER ANYTHING LIKE THAT.
>>THE ANSWER IS NO. THAT IS A COMPLETE ANSWER. HAVE YOU EVER
RECEIVED SEXUALLY SUGGESTIVE OR EXPLICIT EMAILS FROM JUDGE
KACZYNSKI EVEN IF YOU DO NOT REMEMBER YOU ARE ON THIS LIST?
>>LET ME START WITH, NO WOMAN SHOULD BE SUBJECTED TO
SEXUAL HARASSMENT IN THE WORKPLACE.
>>JUDGE 2023 — JUDGE KAVANAUGH YOU HAVE
ARTIE WENT THROUGH THAT . DURING AND AFTER YOUR CLERKSHIP DID YOU
EVER WITNESS OR HEAR THE ALLEGATIONS OF ANY INAPPROPRIATE
BEHAVIOR WILL CONDUCT THAT COULD BE DESCRIBED AS SEXUAL
HARASSMENT BY JUDGE KACZYNSKI. >>NO SENATOR. THERE WERE 10
JUDGES IN THE COURTHOUSE WITH HIM IN PASADENA. PROMINENT
FEDERAL JUDGES. WE WORKED SIDE-BY-SIDE, DAY
AFTER DAY WHILE HE WAS CHIEF JUDGE OF THE NINTH CIRCUIT.
>>TO BE CLEAR, WHILE THIS BEHAVIOR WAS GOING ON FOR 30
YEARS, YOU SAW NOTHING, YOU HEARD NOTHING AND SAID NOTHING.
JUDGE KAVANAUGH, DO YOU BELIEVE THE WOMEN THAT CAME FORWARD TO
ACCUSE HIM OF THE BEHAVIOR? >>I HAVE NO REASON TO NOT
BELIEVE THEM. >>LET ME PUT THIS INTO CONTEXT.
YOU HAVE TESTIFIED THAT YOU SAW NO EVIDENCE OF THE
BEHAVIOR AT ALL AND NEVER HEARD OF IT. YOU WORKED CLOSELY ON A
NUMBER OF PROJECTS. YOU KEPT IN TOUCH WITH HIM WHILE YOU’RE IN
THE WHITE HOUSE. HE INTRODUCED YOU TO THE SENATE AT YOUR 2006
NOMINATION HEARING AND HE CALLED YOU HIS GOOD FRIEND. YESTERDAY
YOU CALLED EACH OF THE PEOPLE THAT INTRODUCED YOU, A FRIEND. I
PRESUME YOU FELT THAT WAY ABOUT JUDGE KACZYNSKI WHEN HE
INTRODUCED YOU IN 2006. YOU JOINED HIM FOR PANELS AT THE
SOCIETY WHERE YOU PATTED HIM ON THE SHOULDER AND SAID, I LEARNED
FROM THE MASTER ABOUT HIRING CLERK. — HIRING CLERK’S. I
BELIEVE I HAVE A PHOTO OF THAT. YOU TOLD US THAT YOU HAVE HIRED
MANY WOMEN CLERKS. HOW YOU ARE MENTORED AND HOW IMPORTANT YOU
THINK IT IS FOR WOMEN TO HAVE A SAFE WORKING ENVIRONMENT WHERE
THEY FEEL THAT THEY CAN REPORT SEXUAL HARASSMENT. I CONCLUDE
THAT YOU CONSIDER YOURSELF AN ADVOCATE FOR WOMEN. IF THE JUDGE
WAS AWARE THAT ANOTHER JUDGE WAS ENGAGING IN SEXUAL HARASSMENT OR
SEXUAL ASSAULT WITH THE JUDGE HAVE A DUTY TO REPORT IT?
>>IF I HEARD THOSE ALLEGATIONS I
WOULD’VE DONE THREE THINGS. I WOULD’VE CALLED JUDGE TOM
GRIFFITH , I WOULD’VE CALLED CHIEF JUDGE
GARLAND AND I WOULD’VE CALLED THE HEAD
OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS. IF FOR ANY
REASON I WAS NOT SATISFIED, I WOULD CALL CHIEF JUSTICE ROBERTS
DIRECTLY.>>SO YOU BELIEVE THAT ALL
JUDGES, INCLUDING YOURSELF, IF YOU EVER HEARD ANY ALLEGATIONS OF THESE TYPES OF BEHAVIORS, YOU
WOULD REPORT IT AND GO THROUGH WHATEVER PROCESSES WERE SET UP
BY THE COURT TO PREVENT THIS BEHAVIOR AND HOLD PEOPLE
ACCOUNTABLE, YET SOMEONE THAT YOU HAD BEEN CLOSE
TO — I DID GO THROUGH THE
ENCOUNTERS THAT YOU HAD WITH JUDGE PRESENT THE. YET YOU HEARD
NOTHING, SAW NOTHING AND DID NOT SAY ANYTHING. THIS IS WHY THE #METOO MOVEMENT
IS SO IMPORTANT. OFTEN IT IS AN ENVIRONMENT WHERE
PEOPLE SEE NOTHING, HEAR NOTHING, SAY NOTHING. THAT IS
WHAT WE HAVE TO CHANGE. >>I AGREE COMPLETELY. THAT
NEEDS TO BE BETTER REPORTING MECHANISMS. WOMEN THAT ARE THE
VICTIMS NEED TO KNOW WHO THEY CAN CALL, WHEN THEY CAN CALL.
>>IF ALL OF THOSE PROCESSES WERE
IN PLACE OVER THE 30 YEARS THAT JUDGE COUSENS HE WAS ENGAGING IN
THIS BEHAVIOR, MAYBE HE WOULD’VE STOPPED BUT HE DID NOT. I HAVE
ONE MORE QUESTION. WERE YOU AWARE OF THE SERIOUS ALLEGATIONS
OF DOMESTIC VIOLENCE AGAINST PORTER BEFORE YOU RECOMMENDED
HIM FOR STAFF SECRETARY TO DONALD TRUMP?
>>THERE IS A PREMISE IN THERE THAT I AM NOT SURE IS ACCURATE.
THE RECOMMENDATION PREMISE. KNOW I WAS NOT AWARE OF THE
ALLEGATIONS UNTIL THEY WERE PUBLIC.>>MAY TURN TO ANOTHER SET OF
QUESTIONS. IN 1999, YOU JOINED IN WRITING A BRIEF AND SHORT IN S IN SUPPORT OF — THAT
CHALLENGED THE VOTING STRUCTURE FOR THE HAWAII VOTING AFFAIRS.
IT WAS FOR THE BENEFIT OF NATIVE HAWAIIANS. YOU ARGUED THAT —
YOU NOT ONLY MADE THE ARGUMENT IN A LEGAL BRIEF BUT YOU ALSO
PUBLISHED AN OPINION PIECE IN THE WALL STREET JOURNAL UNDER
YOUR OWN NAME ENTITLED ARE HAWAIIANS INDIANS? IN THE PIECE
YOU WROTE THEY WERE NOT INDIGENOUS BECAUSE THEY CAME
FROM POLYNESIA. IT MAY INTEREST YOU TO KNOW THAT HAWAII IS PART
OF POLYNESIA. IT IS NOT THAT THEY CAME FROM POLYNESIA THEY
WERE PART OF IT. NATIVE HAWAIIANS DO NOT COME FROM
POLYNESIA. THEY ARE A PART OF POLYNESIA. ALSO IMPLIED THAT
NATIVE HAWAIIANS COULD NOT QUALIFY AS AN INDIGENOUS TRIBE
AND WERE NOT ENTITLED TO CONSTITUTIONAL PROTECTIONS GIVEN
TO INDIGENOUS AMERICANS BECAUSE THEY DO NOT HAVE THEIR OWN
GOVERNMENT, THEY DO NOT HAVE THEIR OWN ELECTED LEADERS, THEY
DO NOT HAVE OR LIVE ON RESERVATIONS, THEY DO NOT EVEN
LIVE TOGETHER IN HAWAII. ME TELL YOU WHY EACH OF THESE ASSERTIONS
ARE WRONG. IT IS THE BASIS ON WHICH YOU DETERMINED THAT THE
ELECTIONS WERE UNCONSTITUTIONAL.>>THE SUPREME COURT AGREED 7-2.
>>THEY DID NOT AGREE NECESSARILY ON YOUR ARGUMENT. EVEN BEFORE THE CREATION OF THE
UNITED STATES. TO SAY THEY DO NOT HAVE THEIR
OWN ELECTED LEADERS IN A HISTORICAL SENSE BETRAYS IN MY
VIEW YOUR IGNORANCE OF NATIVE HAWAIIANS. THEY WERE A
SELF-SUSTAINING SELF-GOVERNING SOCIETY FOR 1000 YEARS PRIOR TO
THE DISCOVERY BY CAPTAIN COOK. YOU SAID THEY DO NOT LIVE ON
RESERVATIONS OR IN ENCLAVES. THEY DO NOT EVEN LIVE TOGETHER
IN HAWAII. IT IS HARD TO KNOW WHAT TO SAY TO THIS. IT SOUNDS
LIKE YOU ARE SAYING NATIVE GROUPS IN THE UNITED STATES
DRIVE THEIR RIGHTS FROM HAVING BEEN HERDED INTO RESERVATIONS
AND CHEATED OUT OF THEIR LAND OR THAT THEY SURRENDER THEIR RIGHTS
WHEN THEY MOVED OUTSIDE OF THESE ARTIFICIAL BOUNDARIES. IT IS NOT
ONLY FACTUALLY WRONG BUT ALSO OFFENSIVE. JUDGE KAVANAUGH IT IS HARD TO
BELIEVE THAT YOU SPENT ANY TIME RESEARCHING THE HISSED TREE OF
NATIVE HAWAIIANS. — THE HISTORY OF NATIVE HAWAIIANS.
>>MAY I RESPOND TO THAT?? I WANT TO GET TO MY QUESTION. YOU
SENT OUT AN EMAIL IN 2002, ANY PROGRAMS TARGETING NATIVE
HAWAIIANS AS A GROUP IS SUBJECT TO STRICT SCRUTINY AND
QUESTIONABLE VALIDITY UNDER THE CONSTITUTION. YOU SENT THE EMAIL
AFTER THE DECISION HAD BEEN MADE. WHEN YOU WROTE THE EMAIL,
SAYING THAT ALL NATIVE HAWAIIAN PROGRAM SHOULD UNDERGO STRICT
SCRUTINY , WERE YOU LOOKING TO — AS A
BASIS FOR THE VIEW? >>FIRST OF ALL, I APPRECIATE
YOUR PERSPECTIVE. THE BRIEF THAT I WROTE, THE SUPREME COURT
AGREED WITH BY A 7/2 DECISION WRITTEN BY JUSTICE KENNEDY. AND
THAT DECISION, AND THE CASE, IT WAS A STATE OFFICE THAT
TONIGHT AFRICAN-AMERICANS THE ABILITY TO VOTE FOR THE STATE
OFFICE, LATINOS AND OTHER PEOPLE WERE DENIED THE ABILITY TO VOTE
FOR A STATE OFFICE. THE QUESTION WAS WHETHER THAT WAS PERMISSIBLE
UNDER THE CONSTITUTION.>>I ATTENDED THAT HEARING. I
BELIEVE THAT ONE OF THE REASONS THEY KEPT ASKING ABOUT WHETHER
NATIVE HAWAIIANS CONSTITUTE TRIBES IS BECAUSE OF THE AMICUS
THAT YOU PUT IN THERE THAT RAISED THE ISSUE. LET ME MOVE
ON. YOU DID NOT ANSWER MY QUESTION. WHEN HE SAID THAT ANY PROGRAM
TARGETING NATIVE HAWAIIANS AS A GROUP IS SUBJECT TO SCOOTER
SCRUTINY — TO STRICT SCRUTINY, WERE YOU THINKING ABOUT THE RICE
DECISION WHICH YOU CONTINUE TO SAY THE SUPREME COURT AGREED
WITH YOU. WERE YOU THINKING OF IT WHEN YOU MADE THIS VIEW. ? THAT IS AN EMAIL FROM 16 YEARS
AGO. I DO NOT RECALL WHAT I WAS THINKING ABOUT.
>>IT WAS RIGHT AFTER THE RICE DECISION. LET ME ASK YOU THIS. YOU THINK IT RAISES
CONSTITUTIONAL QUESTIONS WHEN CONGRESS , NOT THE STATE. RICE WITH THE
STATE ACTION CASE. MY QUESTION IS, DO YOU THINK IT RAISES
CONSTITUTIONAL QUESTIONS IN CONGRESS PASSES LAWS TO BENEFIT
NATIVE HAWAIIANS? >>CONGRESSES POWER WITH RESPECT
TO AN ISSUE LIKE THAT IS SUBSTANTIAL. I DO NOT WANT TO
PRE-COMMIT TO ANY PARTICULAR PROGRAM. I UNDERSTAND THAT
CONGRESS HAS SUBSTANTIAL POWER WITH RESPECT TO DECLARING,
RECOGNIZING TRIBES. YOU BELIEVE THAT ANY OF THESE
PROGRAMS SHOULD UNDERGO STRICT SCRUTINY?>>AS I SAID HERE’S A JUDGE,
LISTENING TO ARGUMENTS FROM 16 YEARS AGO. I AM WORKING IN THE EXECUTIVE
BRANCH AND PUTTING FORTH THE POSITION THEY ARE.>>I APPRECIATE WHAT YOU SAID
ABOUT NATIVE HAWAIIANS.>>IS OFTEN CITED FOR THE
PROPOSITION THAT LAWS THAT BENEFIT NATIVE HAWAIIANS ARE
UNCONSTITUTIONAL BECAUSE THEY ARE RACE-BASED. YOU THINK RICE
CAN BE CITED FOR THAT VIEW, KNOWING THAT AS YOU HAVE
ACKNOWLEDGED IT IS A STATE ACTION 15th AMENDMENT VOTING
RIGHT CASE. RICE IS OFTEN CITED FOR THE
PROPOSITIONS OF NATIVE AMERICAN PROGRAMS ENACTED BY CONGRESS.
THEY CAN BE CHALLENGED AS UNCONSTITUTIONAL. I AM ASKING
YOU IF THAT IS IN — AN APPROPRIATE CITATION? ? I THINK CONGRESS IS
SUBSTANTIAL POWER OF COURSE IN THIS AREA. I WOULD WANT TO HEAR THE
ARGUMENTS ON BOTH SIDES. KEEP AN OPEN MIND AND I APPRECIATE YOUR
PERSPECTIVE. >>WHEN THE SUPREME COURT KEEPS
AN OPEN MIND, ONE WOULD HOPE THAT THE ADVOCATES WOULD APPROVE
PROPER FACTS TO THE COURT. THAT IS NOT WHAT YOU DID. I THINK
THERE IS A PROBLEM HERE. YOUR ARGUMENT RAISES A SERIOUS QUESTION ABOUT
HOW YOU WOULD RULE ON THE CONSTITUTIONALITY OF PROGRAMS
BENEFITING ALASKA NATIVES. MY COLLEAGUES FROM ALASKA SHOULD BE
DEEPLY TROUBLED BY YOUR VIEWS. I KNOW THAT IN YOUR BRIEF AND YOUR
WALL STREET ARTICLE, YOU DID NOT MENTION ONE WORD ABOUT ALASKA
NATIVES. IT COULD BE BECAUSE THERE IS NO COMMERCE CLAUSE
REFERENCE TO ALASKA NATIVES AS THERE IS FOR AMERICAN INDIAN
TRIBES. I WANT TO MOVE ON TO ANOTHER SET OF QUESTIONS. I WANT TO FOLLOW UP ON THE
DISCUSSION WITH SENATOR FEINSTEIN ABOUT CASEY AND THE
CONVERSATION WITH SENATOR DURBIN ABOUT GARZA. YOU TALKED ABOUT
THE IMPORTANCE OF RESIDENCE. YOU SAID YOU UNDERSTAND THE STRONG
FEELINGS ABOUT ABORTION. I THINK WE TALK ABOUT RESPECT
FOR PRECEDENT IS MISLEADING. THERE ARE WAYS TO SAY THAT YOU
ARE RELYING ON PRECEDENT LIKE ROW BUT STILL SEVERELY LIMITS A
WOMAN’S RIGHT TO MAKE CHOICES. THAT IS WHAT YOU DID IN GARZA.
WE ALL RECOGNIZE THAT EVEN IF IT IS NOT OVERTURNED, THERE
ARE CASES THAT WILL CONTINUE TO COME TO ALL COURTS INCLUDING THE
SUPREME COURT THAT WILL BE LAWS ENACTED BY STATES THAT WILL
LIMIT A WOMAN’S RIGHT TO CHOOSE. INCLUDING THINGS LIKE PARENTAL
CONSENT, SPOUSAL CONSENT OR NOTIFICATION, LIMITS ON WHERE
ABORTIONS CAN BE PERFORMED. BOTH SENATORS DURBIN AND
BLUMENTHAL EXPLAINED THE FACTS IN GARZA. WHEN THE CAGE REACHED
YOU, YOU TOOK ANY OPPORTUNITY HE COULD TO PREVENT THAT GIRL FROM
GETTING AN ABORTION. YOU SAID YOU WERE RELYING ON PRECEDENT
THAT YOU WERE NOT. YOU TURNED THIS CASE INTO A PARENTAL
CONSENT CASE WHICH IT WAS NOT. YOU THEN LOOKED AT THE FACTS AND
RULED AGAINST COMMON SENSE THAT KEEPING A YOUNG WOMAN BEHIND
LOCK AND KEY AGAINST HER WILL BY OFFICE OF REFUGEE RELEGATION,
WOULD BE ALLOWED TO DELAY BEYOND THE TIME THAT ABORTION
WOULD BE LEGAL BY FINDING SPONSORS THAT SHE DID NOT NEED.
YOU DEEMED THESE FACTUAL CIRCUMSTANCES AND NOT AN UNDUE
BURDEN ON HER CONSTITUTIONAL RIGHT FOR AN ABORTION. LET ME
READ YOU A PORTION. HE SAID THE MAJORITY POINTS TO STATES SUCH
AS TEXAS. THE MINOR WOULD HAVE RECEIVED A JUDICIAL BYPASS. THAT
IS TRUE. IT IS IRRELEVANT TO THE CURRENT SITUATION. THE CURRENT
SITUATION WAS ALL ABOUT PARENTAL CONSENT AND THE NEED TO GET
JUDICIAL BYPASS WHICH THIS YOUNG WOMAN DID. IF THERE IS ANYTHING
THAT IS IRRELEVANT IS YOUR ARGUMENT THAT IT WAS A PARENTAL
CONSENT CASE. AND HE WENT ON TO ANALYZE THE CASE ON THE BASIS OF
WHETHER OR NOT, KEEPING HER UNDER LOCK AND KEY, INSISTING
THAT THERE BE SPONSORS WHICH COULD HAVE ENDED UP IN
UNFEASIBLE TIMEFRAME TO GET AN ABORTION. YOU DEEMED THOSE NOT
TO BE UNDUE BURDENS. THE YOUNG WOMAN HAD ALREADY RECEIVED A
STATE JUDICIAL BYPASS. THE FACT THAT SHE DID NOT HAVE PARENTAL
CONSENT IS NOT AN ISSUE AND IT IS IRRELEVANT. THIS IS
DISTURBING. IS IT ANY WONDER THAT PRESIDENT TRUMP SAID
NOMINEES TO THE SUPREME COURT WILL OVERTURN ROE VERSUS WADE. I FIND IT UNBELIEVABLE. SAID — IT’S HAD A MINOR DOES NOT
HAVE A CONSTITUTIONAL RIGHT TO AN ABORTION. IS THE FACT THAT
YOU DID NOT JOIN THIS MEAN THAT UNDOCUMENTED PERSONS DO HAVE A
RIGHT? ? I MADE CLEAR THAT I WAS
FOLLOWING THE PRESIDENT AS CLOSELY AS I COULD. YOU
MENTIONED PARENTAL AND SPOUSAL CONSENT. THE SUPREME COURT HAS
UPHELD PARENTAL CONSENT LAWS. >>IT REQUIRES A JUDICIAL
WAIVER. YOU CANNOT REQUIRE PARENTAL CONSENT WHERE THE
PARENTS WERE BEATING HER UP. YOU CANNOT EXPECTED IN THIS CASE. ? THAT WOULD BE A SITUATION
WHERE THE BYPASS. THIS WAS AN ANALOGY FOR A WOMAN THAT IS A
MINOR. WHO WAS IN AN IMMIGRATION FACILITY BY HERSELF IN THE
UNITED STATES. >>SHE HAD ALREADY GOTTEN THE
JUDICIAL BYPASS. THERE WAS NO ISSUE OF CONSENT. IN THIS CASE
YOU SUBSTITUTED A FOSTER FAMILY FOR CONSENT. THAT IS NOT EVEN AN
ISSUE. I DO HAVE A QUESTION CONSTANCY MENTIONED SEVERAL
TIMES, THAT YOU DID NOT JOIN THE DISSENT, THAT WAS THERE WAS NO CONSTITUTIONAL
RIGHT FOR AN ALIEN MINOR TO HAVE AN ABORTION. DID YOU NOT JOIN THE CONSENT
BECAUSE HE DISAGREED WITH THAT? IN FACT, ALIENS — ALIEN MINORS
DO HAVE A RIGHT TO AN ABORTION IN OUR COUNTRY.
>>AS A GENERAL PROPOSITION, THE GOVERNMENT DID NOT ARGUE IN THE
CASE THAT ALIENS LACK CONSTITUTIONAL RIGHT TO OBTAIN
AN ABORTION. >>THEY DIDN’T ARGUE BECAUSE THEY FIGURED IT WAS A
DECIDED ISSUE. MAYBE YOU DO NOT THINK SO. YOU THINK THAT IS AN
OPEN QUESTION THAT ALIENS HAVE A RIGHT TO ABORTION? DO YOU THINK
THAT IS AN OPEN CASE? >>SUPREME COURT HAS RECOGNIZED
THAT PERSONS IN THE UNITED STATES HAVE CONSTITUTIONAL
RIGHT.>>I HOPE THAT IS WHY YOU DID
NOT JOIN THE DEFENSE. MOVING ON. I THINK YOU CAN LEARN A LOT
ABOUT A JUDGE BY LOOKING AT THE S — YOU HAVE THE HIGHEST DESCENT
RATE AMONG ACTIVE CIRCUIT JUDGES. I WANT TO TALK ABOUT
SEVERAL STUDIES THAT ANALYZE YOUR DECISION. THE FIRST STUDY
BY ELLIOTT NASH AND DANIEL CHEN SO THAT COMPARED TO OTHER
CIRCUIT COURT JUDGES, YOU NOT ONLY HAVE THE HIGHEST RATE OF
DESCENT YOU HAVE THE HIGHEST RATE OF ARTISAN DESCENT. I SUFFICE TO SAY, I WOULD LIKE TO HAVE THE STUDY
BY THEM ENTERED INTO THE RECORD. I’M ON A ROLL HERE. THE SECOND
STUDY SHOWS THAT YOU CONSISTENTLY CITED AGAINST
WORKERS OR IMMIGRANTS AND ONLY ONCE FAVORED CONSUMERS. A THIRD STUDY BY PUBLIC CITIZENS
SHOWS THAT IN CASES WHERE THERE WAS DISAGREEMENT, YOU
CONSISTENTLY CITED AGAINST HELPING PEOPLE THAT WANTED TO
PROTECT CLEAN AIR AND WATER. I ASK TO HAVE THE STUDY ENTERED
INTO THE RECORD AS WELL. A FOURTH STUDY BY COPE AND FISHMAN FOUND THAT
YOU ARE , IT IS HARD TO FIND A FEDERAL
JUDGE MORE CONSERVATIVE THAN BRETT KAVANAUGH. I WOULD LIKE TO
HAVE THE STUDY ENTERED INTO THE RECORD AS WELL.>>WHY DO YOU REALLY DISSENT ON
BEHALF OF CONSUMERS, WORKERS OR THE POWERLESS? DO NOT TALK TO ME
ABOUT THE TIMES THAT YOU ARE WITH THE MAJORITY OR WHERE YOU
JOINED OTHER MAJORITIES. >>I HAVE RULED FOR WORKERS MANY
TIMES. I RULED FOR ENVIRONMENTAL INTEREST MANY TIMES IN BIG
CASES. CASES THAT INVOLVE CLEAN-AIR REGULATION, REGULATION
. THE CALIFORNIA CLEAN-AIR WALL OVER A DISSENT BY ATTILA JUDGE.
>>I ADDED AT LEAST FOUR STUDIES
INTO THE RECORD THAT INDICATES THERE IS A PATTERN TO YOUR
DESCENT AND YOUR PATTERN IS YOU DO NOT FAVOR REGULAR PEOPLE.>>ONE OF THE MOST IMPORTANT WAS
THE UNITED STATES WORSE AS PER WELL. THAT WAS A CRIMINAL CASE FOR A CONVICTED DRUG
DISTRIBUTOR. THE QUESTION WAS WHETHER HE HAD BEEN SENTENCED TO
A 30 YEAR MANDATORY MINIMUM PERMISSIBLY AND I JOINED BY ANOTHER JUDGE RULED THAT THE
INSTRUCTIONS WERE FLAWED AND I WAS IN DISSENT FOR HIM BECAUSE
THE REQUIREMENT HAD BEEN OMITTED FROM THE JURY INSTRUCTIONS. I
REALLY LIKE THE DISSENT ABOUT THAT. THAT IS ONE OF MY MOST
IMPORTANT DISSENT ON BEHALF OF A CRIMINAL DEFENDANT.
>>THE THING ABOUT PATTERNS IS THERE ARE EXCEPTIONS. ALL OF THE
STUDIES THAT EYESIGHT, WE ARE NOT TALKING ABOUT THE
EXCEPTIONS, WE ARE TALKING ABOUT THE EXISTENCE OF THE PATTERN. IT BOTHERS ME. I WOULD EXPECT
THE JUDGE TO FOLLOW THE LAW. YOU STARTED OFF SEVERAL TIMES SAYING THAT, HOW DID YOU
DESCRIBE YOURSELF IN TERMS OF FOLLOWING THE LAW?
>>INDEPENDENT AND PROLONGED. — PRO LAW. I REVERSED THE CONVICTION OF THE
WOMAN ON THE GROUND — >>I HATE TO CONTINUE TO
INTERRUPT YOU. 30 MINUTES GOES BY QUICKLY. THERE ARE ALWAYS
EXCEPTIONS. YOU DESCRIBE YOURSELF AS PRO LAW. OVER AND OVER AGAIN, YOUR
COLLEAGUES CRITICIZE YOU FOR NOT FOLLOWING THE LAW OR PRECEDENT
WHERE CONGRESS WAS CLEAR YOU MISSED LANGUAGE. LET ME SHOW
SOME EXAMPLES WHERE COLLEAGUES TOOK THE TIME TO CRITICIZE YOUR
DESCENT. IN A 2008 CASE, THE MAJORITY SAID YOUR DESCENT , CREATES HIS OWN RULES INSTEAD
OF FOLLOWING SUPREME COURT RULES. IT SAID YOUR DESCENT
ABANDONED THE TEXT OF THE APPLICABLE LAW ALTOGETHER. IN
2011, THE MAJORITY IN A CASE WAS HOW THAT WASHINGTON, DC
COULD BAN AUTOMATIC WEAPONS. THEY RULED AN ENTIRE APPENDIX TO
EXPLAIN WHY YOUR DESCENT WAS WRONG AND HOW YOU MISREAD THE
SUPREME COURT. I ASKED TO HAVE A 10 PAGE APPENDIX ENTERED INTO
THE RECORD. IN 2017 THE MAJORITY CRITICIZE YOUR
DESCENT. THEY SAID RATHER THAN ENGAGE WITH THE RECORD OR ADHERE
TO STANDARDS, THE DISSENT OFFERS A SERIES OF BALD AND BLUE
CONCLUSIONS AND MISCHARACTERIZES THE COURT OPINION. THEY SAY THAT HE APPLIES THE LAW
AS HE WISHES IT WERE NOT AT THAT IS — NOT AS IT IS. THIS DOES
NOT SOUND LIKE A PRO LAW JUDGE. B PLEASE WRAP UP. ? WHY DEAR COLLEAGUES GO OUT OF
THE WAY TO POINT OUT THAT YOU ARE NOT FOLLOWING THE LAW?? I
STAND BY MY RECORD. I HAVE BEEN IN THE MAJORITY THE VAST
MAJORITY OF THE TIME. 95% OF THE TIME. I HAVE WRITTEN OPINIONS
JOINED BY COLLEAGUES OF ALL STRIPES. THERE HAVE BEEN STUDIES
THAT HAVE SHOWN THE AFFILIATION OF THE JUDGES THAT JOINED ME. I
STAND BY MY RECORD. I AM PROUD OF MY RECORD. I HAVE EXPLAINS MY DECISIONS
THOROUGHLY IN EACH CASE. I APPRECIATE YOUR PERSPECTIVE AND
UNDERSTAND THE CASES YOU HAVE RAISED. MY OPINIONS AND SPEAK
WITH THEMSELVES AND I AM PROUD OF THEM.
>>THANK YOU.>>JUDGE CAVANAGH — JUDGE KAVANAUGH YOU CAN RELAX
FOR THE MOMENT. I’M GOING TO INTRODUCE SOME DOCUMENTS FOR THE
RECORD . >>PLEASE ENTER THIS STATING THAT
THE BRETT KAVANAUGH NOMINATION MAY BE THE CALM BEFORE THE
STORM. THE EDITORIAL BOARD SAID THAT JUDGE KAVANAUGH IS
IMPECCABLY CREDENTIALED AND CONVENTIONALLY CONSERVATIVE AND
MUCH MORE LIKELY TO OVERTURN CASE LAW. IN ADDITION TO
QUALIFICATIONS AND RESPECT, HE BRINGS A REASSURING IMAGE OF
NORMALITY AND JUDICIAL COHESION. I WOULD LIKE TO INTRODUCE THIS
TO THE RECORD. SECONDLY, THE SAN DIEGO UNION TRIBUNE, WHY BRETT
KAVANAUGH MAY BE MORE INDEPENDENT THAN YOU EXPECT.
THIS GOES FORWARD TO SAY THAT THE EDITORIAL BOARD IS INCLINED
TO SIT WART JUDGE KAVANAUGH’S NOMINATION. THE BOARD ADVOCATES
FOR THE DEFENSE TO THE PRESIDENT IN PICKING JUSTICES AS LONG AS
THE NOMINEE HAS THE CREDENTIALS AND IT APPLAUDS JUDGE KAVANAUGH . I ASKED FOR CONSENT TO PUT THIS
DOCUMENT AND RECORD. THIRD IS A DOCUMENT FROM THE
HARVARD BLACK LAW STUDENTS ASSOCIATION. THIS IS A LETTER
THAT EXHIBITS JUDGE KAVANAUGH’S COMMITMENT TO FOSTERING
ADVERSITY IN THE LEGAL PROFESSION. LAST YEAR JUDGE KAVANAUGH
REACHED OUT TO THE HARVARD LAW SCHOOL CHAPTER OF THE BLACK LAW
STUDENTS ASSOCIATION TO EXPRESS INTEREST IN ORGANIZING A
CLERKSHIP EVENT FOR MEMBERS. ON THE PANEL WAS JUDGE PAUL
WATFORD. AND AFRICAN-AMERICAN JUDGE ON THE NINTH CIRCUIT COURT
OF APPEALS. THE BLACK LAW STUDENT
ASSOCIATION DESCRIBED THAT EVENT. JUDGE KAVANAUGH EXPLAINED
THAT ONE OF HIS PRIORITIES IS TO ENCOURAGE STUDENTS OF COLOR
TO APPLY FOR ADDITIONAL CLERKSHIPS. SEVERAL REPORTS HAVE
INDICATED THAT MINORITY STUDENTS ARE UNDERREPRESENTED IN FEDERAL
CLERKSHIPS. DURING EVENTS, JUDGE KAVANAUGH
PROVIDED HIS INSIGHT AND ADVICE ON HOW STUDENTS SHOULD NAVIGATE
THE PROCESS. THE JUDGE NOT ONLY GRACIOUSLY OFFERED HIS TIME FOR
THE PANEL BUT HAS CONTINUED TO MENTOR NUMEROUS HARVARD STUDENTS
WHOM HE HAS TAUGHT OR WORKED WITH IN A NUMBER OF CAPACITIES.
ACCIDENT IS FOR THE RECORD. FOURTH, THE GEORGETOWN PREP
LETTER. JUDGE KAVANAUGH’S FORMER GEORGETOWN PREP CLASSMATES.
THESE MEN GREW UP WITH JUDGE KAVANAUGH . HAVE KNOWN HIM FOR
35 YEARS. THEY KNOW HIM AS A MAN OF HIGH CHARACTER AND INTELLECT
BEFORE HE BECAME A JUDGE. IN HIGH SCHOOL HE WAS THE TEAM
CAPTAIN AND A MULTISPORT ATHLETE. YEARS LATER, DESPITE
HIS GREAT ACHIEVEMENTS, HE REMAINS THE SAME GROUNDED AND
APPROACHABLE PERSON THEY KNEW FROM CLASS, SPORTS AND
ACTIVITIES. THE LETTER GOES ON WITH SIGNING
ACCOLADES. I WOULD LIKE TO PUT THIS INTO THE RECORD. FINALLY
FOR DOCUMENTS, GOVERNOR MATTHEW MEAD OF WYOMING SENT A LETTER
THAT STATES JUDGE KAVANAUGH EMBODIES THE QUALITIES THAT WE
NEED IN AN INDEPENDENT JUDICIARY. HE WILL BE AN
EFFECTIVE AND FAIR MEMBER OF THE SUPREME COURT. I ASKED TO SUBMIT
THIS TO THE RECORD. I WOULD LIKE TO NOW TURN TO SOME
QUESTIONS. FIRST I WANT TO GET INTO THE DISCUSSION AND GO BACK
AND BRING CLARITY TO AN EARLIER DISCUSSION. WITH REGARD TO THE
INDEPENDENT COUNSEL VERSUS THE SPECIAL COUNSEL CIRCUMSTANCES
AND STATUTES THAT WE HAVE HAD. MY COLLEAGUES HAVE ASKED A LOT
ABOUT THE OLD INDEPENDENT STATUTE. IT IS
IMPORTANT THAT WE WANT TO THE DIFFERENCES BETWEEN THAT STATUTE
WHICH IS NO LONGER LAW. I WILL MENTION THREE IMPORTANT
DIFFERENCES. THAT I WILL ASK IF YOU WOULD
LIKE TO GIVE ANY CLARITY. FIRST, THE PROCESS FOR APPOINTING A
SPECIAL COUNSEL WHICH IS THE CURRENT SITUATION. THE DECISION TO APPOINT A
SPECIAL COUNSEL AND THE CHOICE OF WHOM TO APPOINT IS SOLELY
WITHIN THE DISCRETION OF THE ATTORNEY GENERAL. THE OLD
INDEPENDENT COUNSEL HAD TO BE UP ON IT AND SELECTED BY A PANEL OF
THREE CIRCUIT JUDGES. SECOND, THE SCOPE OF THE INVESTIGATION.
THE SCOPE OF THE CURRENT SPECIAL COUNSEL INQUIRY IS DETERMINED
SOLELY BY THE ATTORNEY GENERAL. THE SCOPE OF THE INDEPENDENT
COUNSEL’S JURISDICTION WHEN IT WAS THE LAW WAS ESSENTIALLY
BOUNDLESS. NO LIMITS. THIRD IS THE PROCESS FOR REMOVING A
SPECIAL COUNSEL. THE ATTORNEY GENERAL CAN REMOVE THE SPECIAL
COUNSEL FOR GOOD CAUSE. THE INDEPENDENT COUNSEL CAN ONLY BE
REMOVED BY A THREE-JUDGE PANEL. I THINK THOSE ARE IMPORTANT
DIFFERENCES RELATED TO THE CONVERSATIONS YOU HAD EARLIER. JUDGE KAVANAUGH WITH THAT
CLARIFICATION, I WOULD LIKE TO ASK IF YOU WOULD LIKE TO GET ANY
MORE COMMENT OR CLARIFICATION TO THE DISCUSSIONS THAT WERE RAISED
EARLIER. ? I APPRECIATE THE DISTINCTIONS WHICH I THINK ARE
ACCURATE. IT IS IMPORTANT TO UNDERSTAND, AS YOU UNDERSCORE
THE OLD STATUTE HAD MANY PARTS TO IT.? THOSE COMBINED TO MAKE
IT A DEPARTURE FROM THE TRADITIONAL COUNSEL SYSTEM.
>>ALL OF THIS WERE PART OF THE
ANALYSIS THAT JUSTICE SCALIA ENGAGED IN. THAT IS WHAT
CONGRESS LOOKED AT WHEN IT DECIDED THE STATUTE HAD BEEN A
MISTAKE. YOU OVERWHELMINGLY DECIDED NOT TO REAUTHORIZE IT IN
1999. ? I FELT LIKE YOU DID NOT GET AN
OPPORTUNITY TO MAKE THAT CLARIFICATION AND THE RECORD
NEEDED TO BE CLEAR FOR THE PEOPLE. BEFORE WE MOVE ON, THE
FUNDAMENTAL STRUCTURAL FLAWS WITH THE OLD STATUTE. SENATOR DURBIN CALLED THAT LAW
UNCHECKED, UNBRIDLED, UNRESTRAINED AND UNACCOUNTABLE.
AS WE HAVE HEARD, JUSTICE KAGAN HAS PRAISED SCALIA’S DISSENT
CALLING THAT LINE TO QUESTION. I DID WANT THE RECORD TO BE
CLARIFIED.>>WHAT I WANT TO DO DURING MY
— THE REST OF MY QUESTIONING IS TO GET INTO YOUR JUDICIAL
RECORD. I WILL START WITH THIS BY GOING BACK TO WHAT THIS SET
OF HERRINGS BEGAN WITH YESTERDAY. IT WAS AN ATTACK ON
THE DOCUMENTATION THAT HAS BEEN PRODUCED BY YOU AND OTHERS FOR
YOUR RECORD. THERE IS NO NOMINEE FOR THE
SUPREME COURT THAT HAS EVER BEEN ASKED A MORE ROBUST
QUESTIONNAIRE BY THIS COMMITTEE THEN YOU. YOU PROVIDED AROUND
17,000 PAGES OF DOCUMENTS IN RESPONSE TO THAT QUESTIONNAIRE
WHICH WAS MORE THAN ANY OTHER NOMINEE HAS BEEN ASKED. SECONDLY
, YOU PRESIDED OVER — PROVIDED OVER 440,000 OTHER PAGES THAT IN AND OF ITSELF IS MORE
THAN THE ENTIRE NUMBER OF DOCUMENTS OR PAGES THAT WERE
PROVIDED BY THE LAST PREVIOUS FIVE NOMINEES TO THE SUPREME
COURT. YOU ALSO HAVE A RECORD, A JUDICIAL RECORD, THAT IS
ACKNOWLEDGED BY SENATORS AS THE MOST IMPORTANT PART OF THE
DOCUMENTATION FOR A NOMINEE OF OVER 10,000 PAGES OF YOUR
DECISIONS. UNFORTUNATELY, WE HAVE NOT SEEN A LOT OF FOCUS ON
THAT. I WANT TO GET INTO THAT. BEFORE I DO, I WANT TO NOTE,
EVERYONE HAS HEARD THIS MANY TIMES. I AM NOT SURE THAT THE NORMAL
AMERICAN UNDERSTANDS. YOU ARE A JUDGE OF THE DC CIRCUIT. IT HAS
BEEN SAID IN THIS ROOM A NUMBER OF TIMES THAT IS OFTEN CALLED
THE SECOND MOST POWERFUL COORDINATION. IT IS A CIRCUIT
COURT. THERE ARE A NUMBER OF CIRCUIT COURTS. WHAT IS
DIFFERENT ABOUT THE DC CIRCUIT COURT FROM SAY THE NINTH CIRCUIT
COURT? WHAT IS DIFFERENT BETWEEN ALL OF
THE OTHER CIRCUIT COURTS AND THE DC CIRCUIT COURT?
>>ALL OF THE COURTS OF APPEALS ARE IMPORTANT. THEY ALL HAVE
IMPORTANT DOCKETS AND CASELOADS. THE JUDGES ALL DO IMPORTANT
WORK. THE DC CIRCUIT DOES GET MORE REGULATORY CASES BECAUSE WE
ARE IN THE NATION’S CAPITAL. MORE OF THE ADMINISTRATIVE LAW
CASES COME. EPA CASES FOR EXAMPLE OR ENVIRONMENTAL PROTECTION
AGENCY OR NATIONAL LABOR RELATIONS BOARD OR SECURITIES
AND EXCHANGE COMMISSION. WE GET MORE OF THOSE CASES INVOLVING
AGENCIES OF THE GOVERNMENT HERE IN DC AS A PERCENTAGE OF OUR
DOCKET THEN YOU WOULD GET ANOTHER COURTS. THAT INCLUDES
SOME OF THE SEPARATION OF POWERS THAT TRADITIONALLY ARISE. WE HAVE ALL THE GUANTÃ NAMO
RELATED CASES IN OUR WORK. THEIR CASES RELATED TO
GOVERNMENT OPERATIONS AND SEPARATION OF POWERS AND
ADMINISTRATIVE LAW. THE AGENCIES THAT ARE A BIGGER PERCENTAGE OF
OUR DOCKET. FOR EXAMPLE THE NINTH CIRCUIT
HAS A GOOD DEAL OF IMMIGRATION LAW, THE FIFTH CIRCUIT HAS —
THE 11th CIRCUIT , ALL OF THE CIRCUITS HAVE AN
IMPORTANT DOCKET. I WANT TO UNDERSCORE THAT DC HAS A LOT
MORE SEPARATION OF OUR BUT I HAVE FRIENDS ON THE OTHER COURTS
OF APPEALS. I DO NOT WANT TO DIMINISH THE WORK THAT THEY DO.
IT IS VERY IMPORTANT. ? THOSE OF US THAT LIVE IN THE
NINTH CIRCUIT, UNDERSTAND THE POWER.
>>SOMETIMES BE CHAFE UNDER ITS
RULINGS. WE ARE VERY AWARE OF THE INCREDIBLE POWER. THE POINT
BEING, THE DC CIRCUIT IS DISTINCTLY DIFFERENT AS YOU
INDICATED. IT GETS A MUCH HIGHER LEVEL OF CASELOAD, DEALING WITH
THE OPERATION OF EXECUTIVE AGENCIES AND WITH OPERATIONS OF
GOVERNMENT. THE KINDS OF THINGS THAT WE HAVE BEEN TALKING ABOUT
EXTENSIVELY. I THINK IT IS IMPORTANT FOR THAT TO BE BROUGHT
OUT. >>WITH REGARD TO THE DC
CIRCUIT, YOU HAVE SPENT HOW MANY YEARS AS A JUDGE ON THAT
CIRCUIT? >>12 YEARS AND THREE MONTHS.
>>HOW MANY DECISIONS HAVE YOU PARTICIPATED IN.
>>WELL OVER 2000 CASES INCLUDING ALL THE CASES.>>I HAVE PUBLISHED MAJORITY
OPINIONS AND 300 CASES. >>THERE HAS BEEN DISCUSSION ABOUT WHAT THE NORM IS AND WHAT
THE PATTERN IS. I WILL NOTE THAT THE CURRENT
ACTIVE JUDGES ARE MADE UP OF SEVEN NOMINEES FROM DEMOCRAT
PRESIDENTS AND FOUR NOMINEES FROM REPUBLICAN PRESIDENTS. THE
CURRENT MAKEUP OF THE ACTIVE JUDGES ON THE DC CIRCUIT IS MORE
DEMOCRAT AND REPUBLICAN IN TERMS OF WHO NOMINATED THEM. I WILL LEAVE WITH THIS QUESTION, IN THE SEVERAL THOUSAND CASES
YOU HAVE BEEN INVOLVED IN DECIDING WITH THIS GROUP OF
JUDGES, WHAT PERCENTAGE DID YOU AGREE
WITH? WHAT PERCENTAGE WERE YOU IN THE MAJORITY?
>>I BELIEVE IT WOULD BE IN THE 90 PERCENTILE.>>IF THERE IS A PATTERN, IT IS
THAT YOU ARE THERE WITH THE MAJORITY OF YOUR COLLEAGUES ON
THE COURT IN MOST CASES. I DO NOT MEAN JUST 51% IT IS OVER
90%. >>THAT SOUNDS CORRECT. WE ARE
JUDGES. WE DO NOT WEAR A PARTISAN LABEL. I TRY TO WORK WELL UNDER THE LAW
WITH ALL OF MY COLLEAGUES. >>THOSE THAT WANT TO CREATE THE
IMPRESSION THAT YOU ARE AN OUTLIER HAVE TO USE THE LAST 3%
IN WHICH YOU ARE ACTUALLY IN THE DISSENT. MAYBE YOU ARE A MEMBER OF THE
PARTIAL MAJORITY. THEY HAVE TO GO TO THAT SMALL NUMBER OF CASES
AND TRY TO FIGURE OUT A WAY TO MAKE IT LOOK LIKE YOU HAVE
DISAGREEMENT WITH NORMS IN THE JUDICIARY. I THINK IT IS
IMPORTANT FOR US TO KNOW, THE PATTERN IS, YOU ARE WORKING WITH
YOUR COLLEAGUES IN A UNITED WAY. THERE SEEMS TO BE A HIGH LEVEL
OF CONSENSUS IN THE RULINGS IN WHICH YOU PARTICIPATE. IN TERMS OF THE DECISIONS YOU
HAVE WRITTEN, HOW MANY WERE MAJORITY DECISION?
>>THE VAST MAJORITY ARE MAJORITY OPINION. ALSO SOME CONCURRENCES.
>>I ASSUME SOME NUMBER OF THOSE
CASES WERE APPEALED TO THE SUPREME COURT. DID THE SUPREME
COURT OVERTURNED THE CASES THAT YOU
WROTE OR WERE THEY SUSTAINED? >>I BELIEVE THERE WERE 13 CASES
WHERE THE SUPREME COURT AGREED WITH THE ANALYSIS OR DECISION
THAT I HAD MADE EITHER IN A DISSENT OR IN A MAJORITY OPINION
FOR THE DC CIRCUIT. >>HOW ABOUT REVERSALS?
>>ONE CASE WHERE THERE WAS A REVERSAL.
>>SO 13-1. IT APPEARS YOU ARE IN THE
MAINSTREAM OF THE AMERICAN JUDICIARY. WITH REGARD TO THE QUESTION OF HOW THE SUPREME COURT HAS
TREATED YOUR CASES, I SEEM TO RECALL THAT THEY ADOPTED YOUR LINE OF
REASONING IN A NUMBER OF CASES. IS THAT CORRECT?>>THAT IS CORRECT. OF THE 13 THAT IS CORRECT. EITHER CITED OR QUOTED OR
OTHERWISE AGREED WITH THE REASONING OR DECISION I HAD MADE
. I’M HAPPY TO TALK ABOUT. THOSE. — I AM HAPPY TO TALK
ABOUT THOSE. >>BEFORE I GO INTO SOME OF THE
CASES THAT I’M AWARE OF, ARE ANY OF THE CASES THAT YOU
PARTICIPATED IN AS A JUDGE, PARTICULARLY THOSE WHERE YOU
HAVE WRITTEN THE OPINION, ANY CASES THAT YOU WOULD LIKE TO
NOTE? WE HAVE NOT GOTTEN INTO YOUR JUDICIAL RECORD MUCH. I
WANT YOU TO HAVE THAT OPPORTUNITY TO TALK ABOUT IT.
ARE THERE SOME YOU WOULD LIKE TO DISCUSS BEFORE I GO ON?
>>I WILL LET YOU ASK IF YOU AND IF THERE ARE OTHERS —
>>I WILL RUN OUT OF TIME. BACK TO ISSUE YOU HAVE BEEN
CRITICIZED FOR. EQUAL TREATMENT OF WOMEN. ONE OF THE CASES I’M
AWARE OF IS THE UNITED STATES VERSUS — YOU DEFENDED THE RIGHTS OF
VULNERABLE WOMEN AND REVERSED THE DISTRICT COURT ON GROUNDS
THAT A FEMALE CRIMINAL DEFENDANT WAS PREJUDICED BY HER LAWYER’S
FAILURE TO INTRODUCE EVIDENCE OF HER SUFFERING FROM BATTERED
WOMEN’S SYNDROME. WHICH YOU DISCUSS THAT?
>>THERE HAD BEEN A CRIMINAL CONVICTION OF A WOMAN FOR
EXTORTION. SHE CLAIMED DURESS DEFENSE. SHE CLAIMED SHE WAS A
BATTERED WOMAN AND HAD BEEN REPEATEDLY BEATEN BY HER
BOYFRIEND. THE DISTRICT COURT HAD RULED AGAINST THE WOMAN ON THE CLAIM THAT HER COUNSEL
WAS INEFFECTIVE BY NOT PRESENTING THE BATTERED WOMAN
DEFENSE. IT CAME TO OUR COURT AND I WROTE A LENGTHY OPINION
EXPLAINING WHY IT WAS EFFECTIVE TO NOT PRESENT IT. OVER DISSENT FROM ANOTHER JUDGE
I SHOULD ADD. I EXPLAINED THE POINT THAT THE JURORS NEEDED TO
HEAR THE EVIDENCE FROM THE EXPERT ABOUT THE BATTERED WOMAN
DEFENSE BE BECAUSE OTHERWISE THE JURY MAY NOT BELIEVE THE CLAIM
SHE WAS MAKING. THEY MAY THINK WHY DIDN’T SHE WALK AWAY? WHY
DID SHE NOT DO SOMETHING ELSE. THE EXPERT TESTIMONY WOULD
EXPLAIN WHAT HAPPENS WHEN YOU ARE BEATEN REPEATEDLY. IT WOULD
EXPLAIN THAT THE JURORS WOULD BENEFIT FROM
HAVING THE EXPERT UNDERSTANDING THAT SOMETIMES YOU CANNOT WALK
AWAY. THAT IS THE HOPE LINKED WHEN YOU ARE IN A RELATIONSHIP
WHERE YOUR BEATEN REPEATEDLY.>>THE ACLU SAID YOUR OPINION
DEMONSTRATED A SYMPATHETIC AND NUANCED UNDERSTANDING OF
VIOLENCE AND ITS EFFECTS. I WILL SKIP OVER ANOTHER CASE
ADAMS VERSUS RICE BECAUSE WE ARE LOW ON TIME. WHAT ABOUT WHEN YOU VOTED TO REVERSE THE
DISMISSAL OF A TITLE VII COMPLAINT BY AN AFRICAN AMERICAN FEMALE
GROUP OF SECRETARIES ALLEGING RACE DISCRIMINATION BY THE
FEDERAL RESERVE BOARD. CAN YOU TELL ME ABOUT THAT?? THAT IS THE
CASE WHERE AS WE ANALYZED AT THE
EVIDENCE PRESENTED WAS SUFFICIENT TO RAISE A CLAIM OF
RACE DISCRIMINATION BASED ON THE TREATMENT THAT THE
AFRICAN-AMERICAN SECRETARIES HAD RECEIVED. THAT WAS OUR RULING.>>THANK YOU. I HAVE PAGES MORE
CASES ON THIS ISSUE. ONLY 10 MINUTES LEFT. I WILL SHIFT TO
ANOTHER ISSUE. AGAIN LOOKING AT CASES THAT YOU HAVE DECIDED RACE
AND DIVERSITY. LET’S TALK ABOUT ITOH VERSUS FANNIE MAE. AN
AFRICAN-AMERICAN EMPLOYEE WAS FIRED FROM FANNIE MAE. HE
BROUGHT IN THE — AND EMPLOYMENT DISCRIMINATION
CLAIM SAYING HIS SUPERVISOR USED A RACIAL SLUR AND CREATED A
HOSTILE ENVIRONMENT. NOT ONLY DID YOU JOIN THE OTHER JUDGES IN
THE OPINION, YOU ALSO WROTE A SEPARATE CONCURRENCE. IN YOUR
CONCURRENCE, YOU WROTE THAT THE SEVERITY OF THIS RACIAL SLUR,
EVEN A SINGLE USE OF THE N-WORD BY A SUPERVISOR IS SUFFICIENT BY ITSELF TO
CREATE A HOSTILE WORK ENVIRONMENT. I COULD GO ON BUT I
WOULD RATHER GIVE YOU A CHANCE. >>THAT CASE WAS POWERFUL. THE
PLAINTIFF ARGUED IT PRO SE IN FRONT OF THE COURT. THAT IS
UNUSUAL. THE SITUATION WAS THAT HE HAD
BEEN CALLED THE N-WORD BY A SUPERVISOR. THE QUESTION WAS
WHETHER THE SINGLE UTTERANCE OF THE N-WORD WAS CONSTITUTED A
HOSTILE WORK ENVIRONMENT UNDER THE SUPREME COURT PRESIDENT WHICH IS SEVERE OR PERVASIVE.
THE QUESTION WAS IS A SINGLE UTTERANCE OF THE WORDS SEVERE? I
WROTE A SEPARATE OPINION TO MAKE CLEAR THAT IT WAS. THAT WORD, NO
OTHER WORD IN THE ENGLISH LANGUAGE POWERFULLY CALLS TO MIND THIS
COUNTRY’S LONG AND BRUTAL STRUGGLE AGAINST RACISM. I HAVE EMPHASIZED THAT IN MANY
CASES IS A LONG MARCH FOR RACIAL EQUALITY IS NOT OVER. WHEN YOU
LOOK BACK AT SOME OF THE HISTORY OF
THE COUNTRY AND THE ORIGINAL SIN OF THE CONSTITUTION WAS THE
TOLERANT OF SLAVERY. THE IMPORTATION CLOSET ALLOW THE
SLAVE TRADE FROM 1788-1808. DURING THAT 20 YEAR PERIOD,
200,000 ADDITIONAL SLAVES WERE IMPORTED INTO THE U.S. THEN OF COURSE, A CENTURY OF
BACKTRACKING FOR THE PROMISE OF THE 14th AMENDMENT. JIM CROW AND
RACIAL DISCRIMINATION LEADING UP TO BROWN VERSUS BOARD OF
EDUCATION. THE CIVIL RIGHTS ACT OF 65 , ONE OF THE MOST IMPORTANT
PIECES OF LEGISLATION EVER ENACTED. IN TERMS OF CHANGING
AMERICA. THERE IS STILL WORK TO BE DONE
AFTER CENTURIES OF DISCRIMINATION, RACIAL SLAVERY
AND OPPRESSION. RACIAL DISCRIMINATION. IN THIS CASE IT
WAS ONE CASE WITH ONE PERSON ARGUING ONE CLAIM OF ONE
INCIDENT . THE WHOLE HISTORY OF THE
COUNTRY WAS REPRESENTED ON RACE RELATIONS AND RACIAL
DISCRIMINATION WAS REPRESENTED IN THAT ONE CASE. I TRIED TO
CAPTURE THAT AS BEST AS I COULD IN THE OPINION I WROTE.
>>NOW ORTIZ DIAZ VERSUS THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT. DENYING A LATERAL JOB TRANSFER
MAY BE ADVERSE WHEN THE EMPLOYEE THAT HE SOUGHT TO TRANSFER FROM
A BIASED SUPERVISOR. IN THAT CASE YOU WROTE A CONCURRENCE
SAYING THAT THE COURT SHOULD ESTABLISH A CLEAR PRINCIPLE THAT
ALL DISCRIMINATORY TRANSFERS AND DENIALS OF REQUESTED TRANSFERS
ARE ACTIONABLE UNDER TITLE VII. YOU ANTON TO MAKE IT CLEAR THAT
DENYING A REQUEST TO TRANSFER BECAUSE OF THE EMPLOYEES RACE
PLAINLY CONSTITUTES DISCRIMINATION.>>THE QUESTION WAS, IF YOU ARE
TRANSFERRED LATERALLY AND KEPT THE SAME PAY AND BENEFITS, IS
THAT A CHANGE. THE ORAL ARGUMENT SAID SOMETHING I EXPLAINED
LATER. IN THE REAL WORLD, A TRANSFER EVEN WITH THE SAME PAY
AND BENEFITS CAN HUGELY AFFECT YOUR LATER JOB OPPORTUNITIES OR
CAREER TRACK. TO THINK THAT DISCRIMINATORY TRANSFERS WERE
DIFFERENT. OUR CASE LAW SAID SOME TRANSFERS CAN
BE ACTUAL AND OTHERS NOT. WHAT I WROTE WAS I DO NOT SEE HOW ALL
DISCRIMINATORY TRANSFERS ARE NOT UNLAWFUL UNDER THE CIVIL RIGHTS
ACT.>>IT IS IMPORTANT FOR AMERICA
TO KNOW THAT YOUR ATTITUDE IS THAT STRONG ON THIS. WE ALREADY
WENT OVER THE ARTIST VERSUS BIANCHI CASE WHEN WE WERE
TALKING ABOUT WOMEN’S RIGHTS ISSUES. THIS IS A GROUP OF
AFRICAN-AMERICAN SECRETARIES THAT WERE ALLEGING
DISCRIMINATION. YOU RULED IN THEIR FAVOR. I HAVE A NUMBER OF
CASES ON THIS. I HAVE A DIFFERENT QUESTION ON RACE AND
DIVERSITY. I RECALLED A BLACK LAW STUDENTS ASSOCIATION LETTER
THAT I INTRODUCED. I ALSO NOTE THAT YOUR COMMITMENT TO
PROMOTING CIVIL RIGHTS EXTENDS TO YOUR PERSONAL LAW SCHOOL DAYS
WHEN YOU WROTE ONE OF YOUR PERSONAL PIECES OF LEGAL
SCHOLARSHIP. YOUR LAW SCHOOL NOTE, WHICH WAS TITLED DEFENSE,
PRESENCE AND PARTICIPATION OF PROCEDURAL MINIMUM FOR KENTUCKY HEARINGS. WHAT THAT
MEANS, YOU CAN EXPLAIN. ESSENTIALLY IT WAS AN ARTICLE
ABOUT THIS TOPIC THAT YOU CHOSE WHEN YOU WERE IN
LAW SCHOOL. MY QUESTION IS, EXPLAIN THE TOPIC BUT WHY DID
YOU CHOOSE IT? >>I WAS INTERESTED IN TRIAL
PROCEDURE AT THAT TIME. I WAS ALSO A PRODUCT OF A CITY WHERE
AS I DESCRIBED AND WHAT MY MOM DID IN TERMS OF TEACHING WERE
RACE RELATIONS AND DISCRIMINATION WERE AN ISSUE.
THAT WAS AN ISSUE OF CONCERN TO ME. I WROTE AFTER THE OPINION THAT
PROHIBITED DISCRIMINATION IN JURY SELECTION, I WROTE WHAT IS
TO PREVENT BACKTRACKING FROM THAT DECISION BY PROSECUTORS
WILL BE ABLE TO SEEMINGLY RACE NEUTRAL REASONS
BUT HAVE THE EFFECT OF EXCLUDING AFRICAN-AMERICANS FROM JURIES? I
WROTE A LAW REVIEW ARTICLE EXPLAINING THAT WE NEEDED GOOD
PROCEDURES TO DETECT SUBTLE DISCRIMINATION. THE LEGACY OF ALL-WHITE JURIES
CONVICTING AFRICAN-AMERICAN DEFENDANTS IS A PAINFUL PART OF OUR
CRIMINAL JUSTICE LEGACY. IS ONE OF THE THINGS I WANTED TO MAKE
SURE IS THAT WAS NOT CIRCUMVENTED PROCEDURALLY.
>>THANK YOU JUDGE KAVANAUGH. I WANT TO COMMEND YOU. IT SEEMS
TO ME THAT A LOT OF THE TIME AND IS HEARING HAS BEEN SPENT TRYING
TO CREATE CRITICISMS OF YOU IN AREAS LIKE WOMEN’S RIGHTS OR
RACE RELATIONS. IN REALITY, YOUR RECORD IS STRONG AND DEEP IN
TERMS OF PROTECTING WOMEN’S RIGHTS AND PROTECTING THOSE WHO
ARE IN UNFAVORED POSITIONS AND PROTECTING AGAINST RACIAL
DISCRIMINATION. I HOPE WE CAN GET A STRONG FOCUS
ON YOUR TRUE RECORD. WHETHER IT IS THESE ISSUES, THE INDEPENDENT
COUNSEL VERSUS SPECIAL COUNSEL OR WHETHER IT IS THE BALANCE OF
YOUR DECISION-MAKING AND WHETHER YOU ARE OUT OF THE JUDICIAL
NORMS TO YOUR APPROACH TO DECISIONS, YOUR RECORD REVEALS
THE TRUTH. ATTACKS THAT HAVE BEEN MADE ON
YOU ARE UNFOUNDED. I HOPE THAT WE CAN GET A MUCH DEEPER LOOK AT
YOUR TRUE HONEST RECORD AS WE MOVE FORWARD. THE MOST IMPORTANT
ISSUE TO ME IN YOUR NOMINATION IS WHETHER YOU WILL BE AN
ACTIVIST JUSTICE OR WHETHER YOU WILL FOLLOW THE LAW AS IT IS
WRITTEN. I KNOW WHAT YOUR ANSWER IS BUT I WANT TO HEAR YOU TELL
ME. WHAT KIND OF A JUSTICE WILL YOU BE ON THE SUPREME COURT IF
YOU ARE CONFIRMED? >>I APPRECIATE THAT AND YOUR
COMMENTS. I WILL BE AN INDEPENDENT JUDGE WHO FOLLOWS
THE LAW, CONSTITUTION IS WRITTEN BY HISTORY AND PRECEDENT. I WILL
FOLLOW THE STATUTES THAT ARE PASSED AS WRITTEN. I REMEMBER HAMILTON THAT THE
JUDICIARY IS THAT JUDICIARY EXERCISES WILL BUT NOT JUDGMENT.
RULES OF LEGAL INTERPRETATION RULES OF COMMON SENSE. I WILL
GIVE IT MY ALL AS I HAVE TRIED TO DO FOR THE LAST 12 YEARS AS A
JUDGE ON THE DC CIRCUIT? THANK YOU VERY MUCH. I COMMEND YOU FOR
THAT ANSWER AND YOUR APPROACH WORK TRACK WE ARE SCHEDULED TO TAKE A
30 MINUTE BREAK — >>>WE ARE SCHEDULED TO TAKE A
30 MINUTE BREAK. IF YOU NEED ALL OF IT JUST SAY SO.>>HOW ABOUT 25 MINUTES?
>>WE WILL BE BACK AT 8:05 PM. AND WE COME BACK SENATOR BOOKER
WILL BEGIN.>>>YOU SAID THIS CASE IS ONE MORE
STEP ALONG THE WAY IN WHICH I SEE AN INEVITABLE CONCLUSION IN
THE NEXT 10-20 YEARS. WHEN THE COURT SAID WE ARE ALL ONE RACE.
THAT IS IN THE EYES OF GOVERNMENT. IT HAS BEEN ABOUT 20
YEARS. IT IS MONTHS AWAY. DO YOU THINK THAT YOU WERE WRONG AT
THAT POINT? RACIAL DISCRIMINATION WOULD BE OVER BY
2019? >>THAT WAS AN ASPIRATIONAL
COMMENT. I HAVE SAID IN MY DECISIONS THAT THE MARCH FOR RACIAL
EQUALITY IS NOT FINISHED AND WE HAVE A LOT OF WORK TO DO AS A
COUNTRY. I WANT TO KNOW WHAT YOU ARE THINKING IN 1999 THAT WOULD
MAKE YOU MAKE SUCH A BOLD ASPIRATIONAL COMMENT. WHAT WAS
GOING ON IN THE 1990S THAT LED YOU TO THAT BELIEF?
>>HOPE.>>YOU AND I ARE AWARE OF THE
TRENDS IN THE 90s. THE DRUG WAR WAS IN FULL BLAIR. THE PRISON
POPULATION EXPLODED. THE MASSIVE INCREASE IN RACIAL DISC RARITY
— RACIAL DISPARITY IN INCARCERATION. EVEN SCHOOLS IN THE 1990S WERE
BECOMING MORE SEGREGATED. YOUR BRIEF IN THE RICE CASE INVOKED
JUSTICE SCALIA’S ARGUMENT THAT WE SHOULD BE ONE RACE. LET ME GO
ON WITH THE SCALIA QUOTE. HE SAID THE GOVERNMENT CAN NEVER
HAVE A COMPELLING INTEREST IN IMPLEMENTING RACE CONSCIOUS
PROGRAMS THAT SEEK TO ADDRESS THE NATION’S HISTORY OF RACIAL
DISCRIMINATION. HE SAID NEVER. HE SAID RACE CONSCIOUS PROGRAMS
ARE RACIAL ENTITLEMENT. DO YOU THINK THAT SOME ONE WHO SAID
THEY CANNOT GET A LOAN IS RACIAL ENTITLEMENT OR ARE THEY SEEKING
RACIAL JUSTICE? DO YOU THINK A PERSON WHO TRIED TO REMEDY THE
FACT THAT THEY WERE DENIED THE CHANCE TO GO TO COLLEGE UNDER
THE G.I. BILL BECAUSE OF THE COLOR OF THEIR SKIN IS SEEKING
RACIAL ENTITLEMENT OR ARE THEY SEEKING RACIAL JUSTICE. TO BE
SPECIFIC WITH SCALIA, YOU AGREE WITH JUSTICE SCALIA WHO YOU
REFERENCE IN YOUR BRIEF THAT IT IS NEVER PERMISSIBLE FOR THE
GOVERNMENT TO USE RACE TO REMEDIATE PAST DISCRIMINATION.
TO TRY AND ACHIEVE JUSTICE.? THAT WAS A BRIEF FOR CLIENT. I WAS NOT SAYING SOMETHING IN MY
OWN VOICE PARTICULARLY. >>YOU SEEM TO INVOKE SCULLY IS
ONE RACE THEORY OFTEN. YOU INVOKED IT TO A REPORTER,
YOU AGAIN MENTIONED IT IN THE WALL STREET JOURNAL. YOU CITED
THE OPINION IN THIS BRIEF. ARE YOU SAYING THAT YOU DO NOT SHARE
JUSTICE COLEUS BELIEF ABOUT THIS IDEA THAT PEOPLE WHO ARE SEEKING
TO ADDRESS PAST DISCRIMINATION OR HARMS THAT THEY ARE SEEKING
RACIAL ENTITLEMENT? >>THE SUPREME COURT PRECEDENT
ALLOWS RACE CONSCIOUS GRAMS IN CERTAIN CIRCUMSTANCES. THE
PRECEDENT ON THE SUPREME COURT IS DIFFERENT. I WAS WRITING A
BRIEF TRYING TO CITE ALL OF THE
PRINCIPLES FROM THE DIFFERENT CASES THAT WOULD SUPPORT THE
BRIEF. TO YOUR POINT, WHEN YOU’RE TRYING TO REMEDY PAST
DISCRIMINATION AS A GENERAL POPULATION , YOU ARE SEEKING RACIAL
EQUALITY AND SEEKING TO REMEDY PAST DISCRIMINATION AND THE
LINGERING EFFECT. >>SEE YOU DISAGREE WITH SCALIA
WHO SAID IT IS NEVER BEEN — PERMISSIBLE FOR THE GOVERNMENT
— I AM ASKING WHAT YOU BELIEVE.
YOU AGREE WITH SCALIA THAT IT IS NEVER PERMISSIBLE FOR GOVERNMENT
TO USE RACE TO TRY AND MEDIATE PAST DISCRIMINATIONS TO ACHIEVE
JUSTICE THAT IS RACIAL ENTITLEMENT? ? THAT POSITION HAS NEVER BEEN
ADOPTED. >>I AM ASKING WHAT YOU BELIEVE
NOT THE COURT. >>THE TERM I USE IS THE
QUALITY. >>IF YOU ARE SEEKING EQUALITY.
IS IT NEVER PERMISSIBLE FOR GOVERNMENT TO USE RACE? TO
REMEDIATE PAST HIS CREMATION. >>THERE ARE A COUPLE OF THINGS
THAT HAVE BEEN POINTED OUT.>>LET ME APPROACH THIS
DIFFERENTLY. THE AFTERMATH OF KATRINA. IN A CASE BY PLAINTIFFS
IN NEW ORLEANS THAT CHALLENGED THE WAY GOVERNMENT PROVIDED
GRANTS TO HOMEOWNERS AS HAVING A DISCRIMINATORY IMPACT ON
AFRICAN-AMERICANS. IF THE FINDINGS HAD SHOWN THAT THE
GRANT PROGRAMS DISFAVORED AFRICAN-AMERICANS, WITH A
GOVERNMENT EFFORT THAT USES RACE TO REMEDY THAT DISPARITY BE
UNCONSTITUTIONAL? DO YOU BELIEVE THAT ALL SUCH EFFORT THAT THE
GOVERNMENT USING THOSE EFFORTS AMOUNT TO RACIAL ENTITLEMENT?
I’M TRYING TO FIGURE OUT IF YOU AGREE WITH THAT POINT.
>>FIRST OF ALL I APPROACH QUESTIONS LIKE YOU ARE ASKING
WITH RECOGNITION OF TWO THINGS. ONE THE HISTORY OF THE COUNTRY
AND TO THE REAL WORLD TODAY. I TRIED AS BEST AS I CAN TO
UNDERSTAND BOTH THE HISTORY OF THE COUNTRY ON THAT ISSUE AND
THE REAL WORLD TODAY. I’M COMING AT IT FROM THAT PERSPECTIVE. YOU
ARE ASKING A QUESTION I THINK ABOUT SPECIFIC REMEDIES FOR
DISCRIMINATION. I HAVE TO FOLLOW PRECEDENT. THE
PRECEDENT ALLOWS REMEDIES IN CERTAIN CIRCUMSTANCE.>>I VE HEARD GEEZ THAT WITH MY
COLLEAGUES. I KNOW WHAT PRESIDENTS ARE. I’M ASKING ABOUT
YOUR OPINION. YOUR OPINIONS MATTER AND WHAT YOU SAY MATTERS.
LET ME GIVE YOU AN EXAMPLE. IN APRIL ¬2003 REGARDING A PROGRAM
DESIGNED TO BENEFIT NATIVE AMERICANS SMALL BUSINESSES THAT
THE DESIRE TO REMEDY SOCIETAL DISCRIMINATION IS NOT A
COMPELLING INTEREST.? THAT IS WHAT THE SUPREME COURT SAID —
>>THAT IS WHAT THE SUPREME COURT SAID.>>JUST ANSWER THIS QUESTION.
YOU SAID RACE CAN NEVER BE USED TO REMEDIATE CLEARLY PROVEN
DISCRIMINATION. AM USING AN ABSOLUTE. DO YOU BELIEVE THAT IT
CAN NEVER BE USED?>>THE SUPREME COURT SAID IT CAN
BE. >>I KNOW WHAT THE SUPREME COURT
SAID. WHAT DO YOU BELIEVE SIR.>>I HAVE TROUBLE DEPARTING FROM
THE SUPREME COURT PRECEDENT. >>YOU DO NOT. I HAVE HEARD YOU
REPINE ABOUT THESE THINGS. YOU CANNOT SAY RIGHT NOW WHAT YOU
BELIEVE? >>A COUPLE OF THINGS. THE LAWYER FOR CLIENT IN THE
EMAIL YOUR READING. >>YOU’RE NOT ANSWERING THE
QUESTION. LET ME APPROACH IT DIFFERENTLY. THE SUPREME COURT
HAS SAID FOR DECADES THAT INSTITUTIONS OF HIGHER
EDUCATION HAVE A COMPELLING INTEREST IN STUDENT BODY
DIVERSITY. RACE CAN BE USED AS A FACTOR. NOT THE ONLY FACTOR BUT
A FACTOR. IS DONE SO IN A WAY THAT IS
NARROWLY TAILORED. YOU SAID THIS IN BACI AND RITTER IN 2003. FISHER IN 2006. THE SIMPLE
QUESTION IS, DO YOU BELIEVE THESE CASES WERE RIGHTLY
DECIDED? >>THE IMPORTANT PRECEDENTS OF
THE SUPREME COURT. >>I DID NOT ASK RESIDENTS. —
PRECEDENTS. DO YOU BELIEVE THAT THESE CASES,
YES OR NO, DO YOU BELIEVE THEY WERE RIGHTLY DECIDED.
>>I AM FOLLOWING THE PRECEDENT SET BY THE EIGHT JUSTICES
CURRENTLY SITTING ON THE SUPREME COURT. TO PUT IT IN THE TERMS OF
JUSTICE KAGAN WHO WAS ASKED A LOT OF THE SAME QUESTIONS. IT
WOULD BE INAPPROPRIATE TO GIVE A THUMBS UP OR DOWN.
>>THE DING — THE DISTINCTION BETWEEN YOU AND KAGAN OR
GINSBERG ON THESE ISSUES. THE DISTINCTION HERE IS NONE OF
THOSE NOMINEES HAD VOICED PERSONAL OPINIONS THAT
GOVERNMENT SHOULD REFUSE TO DEFEND THESE KIND OF PROGRAMS.
LET ME GIVE YOU AN EXAMPLE. YOU WROTE IN AN EMAIL ABOUT ADARAND
VERSUS MINETTA. A CASE THAT INVOLVED BENEFIT TO MINORITY
BUSINESSES. WROTE THAT THE GOVERNMENT SHOULD
FILE A BRIEFING THAT THE PROGRAM IS UNCONSTITUTIONAL. LET THERE
BE NO CONFUSION. YOU WENT ON TO WRITE THAT IN FACT, THIS IS MY
PERSONAL OPINION. YOU SAID THAT THEN. MY QUESTION IS, DO YOU
STILL THINK THAT A DIVERSE STUDENT BODY IS A COMPELLING
INTEREST? YOU WROTE IT THEN. WHAT YOU BELIEVE NOW.
>>A COUPLE OF THINGS. THE CASE WAS IN THE CONTEXT OF
CONTRACTING AND THE BACI CASE WAS JUST —
>>DO YOU THINK IT WAS
UNCONSTITUTIONAL. THAT IS WHAT YOU WROTE THEM?
>>IN LIGHT OF THE SUPREME COURT REPRESENTING A CLIENT IN THAT
CASE. IN THAT I GO THROUGH THAT IT SHOULD NOT BE A WHITE
HOUSE DICTATED ANSWER. I THINK AS YOU KNOW, THERE IS
PRECEDENT IN THE HIGHER EDUCATION CONTEXT AND
CONTRACTING CONTEXT. THEY ARE SOMEWHAT DISTINCT. THOSE
PRECEDENTS HAVE BEEN APPLIED BY JUDGES. MY RECORD ON RACE DISCRIMINATION
CASES, I AM HAPPY TO TALK ABOUT MY CASES.
>>YOU ARE NOT HAPPY TO TALK ABOUT
THE OPINIONS YOU EXPRESSED IN THE PAST. DO YOU STILL HOLD
THOSE OPINIONS NOW? YOU SAID THAT IS IN FACT MY PERSONAL
OPINION. DO YOU STILL HOLD THAT SAME OPINION NOW?
>>YOU’RE TAKING PERSONAL OPINION
OUT OF CONTEXT. PERSONAL OPINION ABOUT THE GOVERNMENT POSITION. A
PERSONAL RECOMMENDATION. THE DISTINCTION IS I SAID THE
SOLICITOR GENERAL SHOULD FIRST MAKE A RECOMMENDATION AND THEN
THE WHITE HOUSE SHOULD RESPOND. AS TO PERSONAL OPINION, IT WAS
NOT MY PERSONAL OPINION AS KAVANAUGH IT WAS THE
GOVERNMENT’S POSITION RECOMMENDATION WOULD BE.
>>YOU ARE PRETTY CLEAR WHAT YOUR PERSONAL OPINION WAS. WE DO
NOT HAVE TO GO BACK AND FORTH. DO YOU THINK HAVING A DIVERSE
STUDENT BODY IS A COMPELLING GOVERNMENT INTEREST. DO YOU
BELIEVE THAT? DO YOU THINK — IT IS NOT A COMPLICATED QUESTION.
DO YOU BELIEVE HAVING A DIVERSE STUDENT BODY IS A COMPELLING
GOVERNMENT INTEREST? >>THE SUPREME COURT HAS SAID
SO. >>WHEN YOU GET ON THE COURT AND
CAN CHANGE PRESIDENTS. WHEN WE GO BACK TO YOUR WORDS. AND WHEN
ASKED ABOUT YOUR WORD. YOU HAVE NOT ANSWERED MY QUESTION. I UNDERSTAND YOU’RE GOING TO
STICK TO THAT. YOU HAVE ALSO WRITTEN THAT AN EFFORT DESIGNED
TO BENEFIT MINORITY OWNED BUSINESSES, AN EFFORT TO GIVE
THEM A FAIR SHAKE BECAUSE THEY HAVE BEEN HISTORICALLY EXCLUDED,
THESE ARE YOUR WORDS, USED A LOT OF LEGALISM AND DISGUISES TO
MASS WHAT IS IN REALITY A NAKED RACIAL SET-ASIDE. THAT IS HOW
YOU REFER TO IT. I’M READING FROM A D MAIL — EMAIL DATED
AUGUST 8. I’M ASKING WHAT YOU BELIEVE NOW.
DO YOU BELIEVE THAT GOVERNMENT EFFORTS TO PROMOTE RACIAL
DIVERSITY ARE A NAKED RACIAL SET-ASIDE. DO
YOU BELIEVE THAT NOW? >>THE GOVERNMENT EFFORTS TO
PROMOTE DIVERSITY IN THE HIGHER EDUCATION CONTEXT ARE
CONSTITUTIONAL. I HAVE MADE CLEAR MY OWN PERSONAL —
>>YOU REFERRED TO IN THE PAST. HAVE YOU EVER USE THE TERM THEY
NAKED RACIAL SET-ASIDE — THE TERM NAKED RACIAL SET-ASIDE? I WILL ASK MY STAFF TO PROVIDE
YOU THE EMAIL. YOU HAVE TOLD ME ABOUT THE DIVERSITY. I’M
GRATEFUL FOR. YOU TOLD ME A LOT OF THINGS ABOUT THE DIVERSITY
THAT YOU HAVE PRACTICED IN YOUR OWN LIFE. I APPRECIATE IT. I’M
NOT ASKING ABOUT THE FIVE BLACK CLERKS THAT YOU HAVE. IS GOOD.
YOU’RE SEEKING A POSITION ON THE HIGHEST COURT IN THE LAND THAT
WILL AFFECT MILLIONS OF PEOPLE. YOU HAVE EXPRESSED OPINIONS
ABOUT THE SUBJECTS TO THE MEDIA COMPRESS AND SPEECHES AND IN
PAST EMAILS. YOU’RE NOT WILLING TO SAY IF YOU STILL HOLD THOSE
POSITIONS THAT YOU HELD BEFORE. I WANT TO MOVE ON SPECIFICALLY
TO SOMETHING THAT YOU HAVE EXPRESSED OPINIONS FOR. THAT IS
THE ISSUE OF RACIAL PROFILING. HE WANTS TO DISCUSSED THE USE OF
RACIAL PROFILING WITH YOUR COLLEAGUES IN THE BUSH WHITE
HOUSE. >>AND I GET THE EMAIL?
>>YES. I’M GOING TO ASK ABOUT YOUR
VIEWS NOW. THERE WAS A DEBATE GOING BACK
AND FORTH. ONE OF YOUR COLLEAGUES SAID
THERE WAS A SCHOOL OF THOUGHT IN THE ADMINISTRATION THAT IF THE
USE OF RACE RENDER SECURITY MEASURES EFFECTIVE, PERHAPS WE
SHOULD USE IT WITH THE INTEREST OF SAFETY NOW AND IN THE
LONG-TERM. SUCH ACTIONS MAY BE LEGAL UNDER SUCH CASES. ? IT SOUNDS LIKE YOU’RE
ACCORDING TO MOUNT. >>I AM QUOTING SOMEONE ELSE. I
SAID THAT WAS YOUR COLLEAGUE. YOU DID NOT RESPOND BY
DENOUNCING RACIAL PROFILING OR EXPRESSING OUTRAGE.>>AS A COURTESY TO THE WITNESS,
WE SAW AN EXAMPLE WHERE I BELIEVE THE WORDS THAT WERE
BEING REPEATED WERE WORDS IN AN EMAIL AUTHORED BY JUDGE
KAVANAUGH. WE NEED TO SUSPEND SO THE
DOCUMENTS CAN BE AVAILABLE TO THE JUDGE. IS THAT APPROPRIATE?
>>I DO HAVE AN OBJECTION. IF MY COLLEAGUE HAS AN ISSUE, IT
SHOULD BE BROUGHT UP AFTER MY TIME.
>>DO NOT TAKE TIME FROM SENATOR BOOKER.
>>YOUR RESPONSE TO THE EMAIL WAS THAT YOU GENERALLY FAVORED
RACIAL SECURITY MEASURES. THERE IS AN INTERIM QUESTION ON
WHETHER THE GOVERNMENT SHOULD USE RACIAL PROFILING BEFORE A
SUPPOSEDLY RACIAL NEUTRAL SYSTEM COULD BE DEVELOPED IN THE
FUTURE. IT SEEMED YOU WERE OKAY TO USE RACE TO SINGLE OUT SOME
AMERICANS FOR EXTRA SECURITY MEASURES BECAUSE THEY LOOK
DIFFERENT BUT YOU ARE NOT OKAY WITH USING RACE TO HELP PROMOTE
DIVERSITY AND EQUAL OPPORTUNITY AND CORRECT FOR PAST INEQUALITY.
>>IT SOUNDS LIKE I REJECTED THE PROFILING. WHAT IS THE DATE? ? THAT IS TO 17, 2002. HAVE YOU
EVER EXPRESSED AN OPENNESS EVEN IN A TEMPORARY CIRCUMSTANCE LIKE
THIS EMAIL INDICATES. IN AN INTERIM QUESTION, OF USING
RACIAL PROFILING. HAVE YOU EVER SUGGESTED THAT?
>>I WOULD LIKE TO SEE THE EMAIL.
>>I WILL PROVIDE IT. ? IT SOUNDS LIKE I REJECTED IT.
>>IT CLEARLY SHOWS THAT YOU ARE OPEN TO IT. THIS IS CRITICALLY
IMPORTANT. THERE ARE PRACTICES THAT
OVERWHELMINGLY TARGET AFRICAN-AMERICANS AND OTHERS OF
COLOR. I HAVE READ OPINION SUCH AS YOURS IN THE UNITED STATES
VERSUS WASHINGTON THAT UPHELD A SEARCH. I QUOTE IN A
NEIGHBORHOOD IN SOUTHEAST WASHINGTON, DC YOU CALLED CRIME
PLATE. — CRIME PLAGUED . YOU WOULD HAVE PROTECTED
POLICE FROM LIABILITY WHEN THEY MADE WARRANTLESS ARRESTS IN A
HOUSE EAST OF THE RIVER. WE KNOW THAT THAT IS A PREDOMINANTLY
BLACK AREA. I UNDERSTAND THERE IS CASE LAW
THAT POLICE CAN JUSTIFY SOME ACTION BY SAYING THEY WERE IN
HIGH CRIME AREAS. YOU KNOW HOW SOME OF THESE OPINIONS, USING
THIS TYPE OF RACIALLY CODED LANGUAGE CAN FURTHER THE
TREATMENT OF PEOPLE OF COLOR WITH THE POLICE. THE WAY I SEE
IT, I WILL GIVE YOU A CHANCE TO RESPOND, YOU ARE WILLING TO
CONSIDER USER — USING RACIAL PROFILING TO ACCEPT PRACTICES LIKE HEAVY
POLICING OF AFRICAN-AMERICAN NEIGHBORHOODS MATURE HOSTILE
WHEN IT IS USED TO PROMOTE DIVERSITY OR REMEDIATE PAST
DRIVEN DISCRIMINATION. >>MAN HAS 60 SECONDS? ON THE
WAS THE CASE THERE WAS A CALL TO THE POLICE, NOT THE POLICE
PATROLLING THE NEIGHBORHOOD. THE SUPREME COURT REVERSED THE
MAJORITY DECISION THAT WAS WRITTEN BY OTHER PEOPLE BUT I
DISSENTED FROM. REVERSED AT 9-0 THIS PAST TERM. WHY RUNNING
WESTBY, WAS CITED AND THE SUPREME COURT AGREED
WITH THE APPROACH I SUGGESTED. ON THE GENERAL CONCEPT, YOU AND
I HAVE DISCUSSED THIS. I AM VERY AWARE. OF THE REALITY AND
PERCEPTION , TARGETED POLICING OR POLICE
ACTIVITY IN MINORITY NEIGHBORHOODS. I TRY AS BEST AS
I CAN TO BE AWARE AND UNDERSTAND. WE SPOKE ABOUT. THE
WESTBY CASE IN MY VIEW, HAD NOTHING TO DO WITH THAT ISSUE.?
I TRIED TO GIVE YOU SOME TIME. THIS IS WHAT I’M HEARING. I
APPRECIATE YOUR RHETORIC.>>YOU’RE GOING TO BE A JUDGE ON
THE SUPREME COURT IF YOU ARE CONFIRMED AND HAVE THE POWER TO
MAKE MASSIVE DIFFERENCES IN OUR COUNTRY. THESE ARE REAL ISSUES.
I ASKED IF THE FISHER CASE WAS RIGHTLY DECIDED AND YOU REFUSE
TO ANSWER. ASKED AGAIN IF YOU BELIEVE DIVERSITY WAS A
COMPELLING INTEREST AND YOU DID NOT ANSWER. THAT IS NOT GOOD
ENOUGH FOR NOW MANY OF THE HIGHEST COURT. PARTICULARLY — I
WILL PROVIDE EMAILS” FOR THE RECORD. OPPOSITION TO
AFFIRMATIVE ACTION AND EFFORTS TO ADDRESS THE STOMACH
APPROVABLE DISCRIMINATION. YOU ALSO HAVE AN OPENNESS TO
RACIAL PROFILING. I WILL PROVIDE EMAIL. THE CASES I RAISED WERE
ABOUT ADDRESSING DOCUMENTED SYSTEMIC STRUCTURAL INEQUALITY
IN OUR COUNTRY. THIS IS ABOUT THE FACT THAT CHILDREN IN THIS
COUNTRY STILL ENCOUNTER A DIFFERENT EXPERIENCE OF AMERICA
BASED ON THE COLOR OF THEIR SKIN AND NOT THE CONTENT OF THEIR
CHARACTER. THEY ARE MORE LIKELY TO DRINK
DIRTY WATER AND BRIEF DIRTY AIR AND LESS LIKELY TO HAVE ACCESS
TO EDUCATIONAL OPPORTUNITIES. THEY ARE MORE LIKELY TO BE
STOPPED BY THE POLICE. THEY ARE MORE LIKELY TO BE SHOT BY THE
POLICE AND BECOME UNFAIRLY ENTRAPPED IN THE JUSTICE SYSTEM. EVEN I HAVE A TROUBLING
UNDERSTANDING IN YOUR EYES HOW AMERICA COULD BE MONTHS AWAY OR
YEARS AWAY FROM BECOMING ONE RACE IN THE EYES OF THE LAW. WE
ARE GOOD COUNTRY WITH GREAT PEOPLE. PEOPLE OF ALL RACES IN
AMERICA HAVE WORKED TOGETHER. WE HAVE WORKED TOGETHER TO MAKE
PROGRESS. YOU SAID IT YOURSELF, WE HAVE SO MUCH TO DO. THE
SUPREME COURT PLAYS A VITAL ROLE IN THAT WORK, JUST AS IT DID
GENERATIONS PAST WITH CASES LIKE BROWN. YOU ANSWER MY QUESTION AND I
WANT TO MOVE REALLY QUICKLY TO VOTING RIGHTS. THAT IS THE CROWN
JEWEL OF THE CIVIL RIGHTS MOVEMENT. IT IS DESIGNED TO
PREVENT STATES FROM PUTTING UP BARRIERS FOR THE RIGHTS OF
AFRICAN-AMERICANS TO THE. — AMERICANS TO VOTE. THESE LAWS ARE BEING ENACTED
DESPITE THE FACT THAT IN PERSON VOTER FRAUD IS INCREDIBLY RARE.
YOU ARE MORE LIKELY TO BE STRUCK BY LIGHTNING IN AMERICA THEN
FIND A PERSON COMMITTING IN PERSON VOTER FRAUD. YOU WROTE AN OPINION IN THE
SOUTH CAROLINA VOTER ID LAW THAT YOU SAID YOU ARE PROUD OF THAT
DECISION. I AM TAKING YOU AT YOUR WORD THAT YOU ARE PROUD OF
THE DECISION. THE AUTHOR OF THE LAW ADMITTED THAT HE RECEIVED AN
EMAIL FROM A SUPPORTER OF THE BUILDINGS THAT AFRICAN-AMERICAN
— IF AFRICAN-AMERICANS WERE OFFERED IN A WORD FOR OBTAINING
A VOTE OF — PHOTO OF ID TO VOTE IT WOULD BE LIKE BEES GOING
AFTER WATERMELON. IN RESPONSE TO THAT, THE AUTHOR REPLIED AMEN.
THANK YOU FOR YOUR SUPPORT. YOU WERE ALSO AWARE THAT BASED ON
THE EVIDENCE IN THE CASE, MINORITY VOTERS WERE 20% MORE
LIKELY THAN WHITE REGISTERED VOTERS TO HAVE A VALLEY — VALID
PHOTO ID. HOW COULD YOU HAVE CONCLUDED THAT THE VOTER ID LAW
WOULD NOT HAVE AN IMPACT ON MINORITY VOTERS AND POOR VOTERS
IN GENERAL? IF THEY DID NOT HAVE A PHOTO ID,
THE ONLY OPTION WAS TO WRITE OUT A SWORN STATEMENT THAT COULD
EXPOSE THEM WITH CRIMINAL PENALTIES? EVEN THEN THEY COULD
ONLY VOTE ON A PROVISIONAL BALLOT. IS THAT TRUE?? THE
DECISION WAS UNANIMOUS BY CATELLI AND BATES. IT WAS A
UNANIMOUS DECISION WE WERE BLOCKED AND LAMENTATION —
IMPLEMENTATION. >>YOU’RE TELLING ME THINGS THAT
I KNOW. COULDN’T YOU SEE THE PROBLEM THAT THIS WOULD CREATE??
THAT IS WHY WE SAID THE REASONABLE IMPEDIMENT PROVISION
COULD NOT BE THE FORM THAT THEY PREPARED BUT WE ESSENTIALLY SAID
WHAT WOULD HAVE TO OCCUR. >>THAT IS THE POINT WHEN WE HAD
TO STOP. SOUTH CAROLINA TRIED TO AND
ACTED AS LAW. WHEN THE PEOPLE WHO ENACTED THE LAW REALIZED
THEY HAD TO MAKE CHANGES, THEY CREATED A SECOND CLASS OF
VOTERS. THOSE WITHOUT THE. THEY HAD TO GO TO A SEPARATE LINE AND
FILL OUT A FORM AND WAIT FOR AN ATTORNEY OR POLL WORKER TO
WITNESS IT. THEN THEY HAD TO CAST A PROVISIONAL BALLOT. THAT
MAY NOT HAVE COUNTED IT ALL. THIS IS A BIG PROCESS. YOU SAID WHAT LOOKS GOOD ON
PAPER MAY FALL APART AND PRACTICE. YOU TOLD ME I WAS
KEEPING AN EYE ON THIS TO SEE WHAT WAS GOING ON. CAN I SHOW YOU WHAT WAS UP AND
POLLING PLACES. YOU CAN SEE THIS DYING. — THIS SIGN. LOOK AT IT.
THIS IS WHAT PEOPLE WITHOUT AN ID WOULD HAVE SEEN. THIS IS
CONFUSING AND INTIMIDATING. IT DOES NOT SHOW THE REASONABLE
IMPEDIMENT OPTION. I DO NOT KNOW IF YOU CAN EVEN
SEE A REASONABLE PROVISION ASPECT. DOESN’T IT MATTER THAT
THE AVERAGE PERSON SEEING THIS COULD BE INTIMIDATED?
>>THAT IS WHY I SAID WHAT LOOKS GOOD ON PAPER
MAY FALL APART AND PRACTICE. WE DID IN THE DECISION WAS WE SAID
TO THE CONCERNED IS I WAS CONCERNED ABOUT THE SAME THING. WE SAID THE PROPOSED REASONABLE
IMPEDIMENT FORM WAS NOT GOOD ENOUGH AND THERE HAD TO BE A
CATCHALL BOX WHERE YOU COULD PUT IN ANY REASON.
>>I APPRECIATE THAT. THIS IS THE RESULT. I WANT TO TALK ABOUT
A DIFFERENT GENERATION. THEY DID TRY TO GET A VOTER ID UNDER THE
LAW YOU ARE PART OF ESTABLISHING. THIS WAS A
92-YEAR-OLD SOUTH CAROLINIAN NAMED LARRY BUTLER. HE WAS A VETERAN AND A PASTOR OF
THE LORD. HE VOTED IN 2010. IN HIS ATTEMPT TO GET A PHOTO ID HE
HAD TO CHASE DOWN PAPERWORK FROM HIGH SCHOOL RECORDS THEN GET A
BIRTH CERTIFICATE THEN GET COURT RECORDS. HE WENT TO THE DMV, THE
VITAL RECORDS OFFICE AND THE COURT. AFTER ALL OF THAT, HE
STILL HAD TROUBLE GETTING A VALID PHOTO IDENTIFICATION.
ACCORDING TO A STUDY BY THE HARVARD LAW SCHOOL, THE COST OF
THE FINAL EFFORT WAS $36. NOT ACCOUNTING FOR HIS TIME. I WANT
TO ASK YOU, MANY PEOPLE CALL THIS THE POLE TAX. TO KNOW WHAT THAT WAS IN 1895? IT WAS ONE DOLLAR. THAT WAS THE TAX THAT YOU AND I
THINK WAS DISGUSTING. IT WAS ONE DOLLAR THEN WHICH IS ROUGHLY $30
TODAY. LESS AND IT WOULD — LESS THEN HE INCURRED TRYING
TO GET IDENTIFICATION TO VOTE. IF IT WAS NOT FOR HOLDING A
PRESS CONFERENCE WITH THE GOVERNOR INTERVENING, HERE’S A
GREAT GENERATION WHERE BLACK FOLKS AND WHITE FOLKS JOINED
TOGETHER AND FOUGHT AND DIED. THEY GREW UP IN A TIME WHEN
STATES LIKE SOUTH CAROLINA PLACED BURDENS ON THE RIGHT TO
VOTE. THEY MADE IT IMPOSSIBLE OR DANGEROUS TO VOTE. THIS IS NOT
THAT MUCH DIFFERENT IN TERMS OF THE COST TO THIS PERSON. MY TIME
IS ABOUT TO RUN OUT. LET ME CONCLUDE, THIS IS NOT
COMPLICATED. COST LIKE THIS CREATES
STRUCTURAL BARRIERS THAT SYSTEMATICALLY DISENFRANCHISE
AFRICAN-AMERICANS, PEOPLE OF COLOR AND POOR PEOPLE OF ALL
COLORS. I AM CONCERNED THAT A PERSON
BELIEVES WE ARE ALL ONE RACE AND YET THE GOVERNMENT THAT COULD
HAPPEN MONTHS OR YEARS FROM NOW. A PERSON WHO BELIEVES EFFORTS TO
PROMOTE RACIAL INJUSTICE OUR NATION — RACIAL SET-ASIDES THAT
WILL BE BLIND TO THE REALITY TO SOMEONE LIKE MR. BUTLER. YOU
REFUSED TO ANSWER A LOT OF MY QUESTIONS. WE ARE AT A TIME WHEN
STATES ARE ENACTING THESE LAWS ALL OVER THE COUNTRY, DESIGNED
TO DISENFRANCHISE VOTERS. TARGETING THEM WITH ALMOST
SURGICAL PRECISION TO DISENFRANCHISE THEM. NOW WE DO
NOT EVEN HAVE THE BENEFIT OF THE VOTING RIGHTS ACT. YOUR ANSWERS
DO NOT PROVIDE ME COMFORT . AS A JUSTICE OF THE NATION’S
HIGHEST COURT, YOU WILL FAIRLY TAKE INTO THE ACCOUNT THE
BARRIERS THAT DISENFRANCHISE MINORITIES LIKE MR. BUTLER
TODAY. I’M AN OPTIMIST. I’M A PRISONER OF HOPE. WE HAVE A LONG
WAY TO GO. WE HAVE WORK TO DO. BLACK FOLKS AND WHITE FOLKS
HONORING THE HIT — HISTORY. NOTHING YOU HAVE SAID TODAY
GIVES ME COMFORT. NO COMFORT THAT YOU WILL DRIVE
FORWARD AND SEE THAT WE HAVE WORK TO DO AND MAKE DECISIONS
THAT WILL MAKE A DIFFERENCE FOR PEOPLE LIKE MR. BUTLER. PEOPLE
LIVING EAST OF THE RIVER. ALL OVER THE NATION.>>MAY I RESPOND. THERE ARE A COUPLE OF THINGS. I
POINTED OUT IN THE SOUTH CAROLINA OPINION, WE SEE ON A COMMON BASIS THAT
RACISM EXISTS IN THE UNITED DATES OF AMERICA. THE LONG MARCH
FOR EQUALITY IS NOT OVER. AFTER AN AFRICAN-AMERICAN HOCKEY
PLAYERS SCORE THE GOAL, THE BURSTER RACIAL COMMENTARY ABOUT
HIM. THAT WAS ONE OF MANY EXAMPLES I COULD’VE CITED IN
THAT CASE. I SHOULD’VE SAID RACIST COMMENTS
ONLINE. THAT WAS ONE EXAMPLE. I MADE CLEAR THAT THE REASONABLE
IMPEDIMENT PROVISION HAD TO BE REWRITTEN. I WAS ALL OVER THE REAL-WORLD
EFFECTS DURING THE TRIAL THAT YOU ARE RAISING HERE. I WAS ALL
OVER THAT. SO WERE THE OTHER JUDGES. HOW IS THIS REALLY GOING
TO WORK AND PRACTICE. IT WAS DRILL DOWN AND DRILL DOWN AND
DRILL DOWN. IT CAUSED THE REWRITING OF THE PROVISION. TO MAKE TO YOUR POINT GETTING
THE PHOTO IDS. WE BLOCKED IMPLEMENTATION FOR 2012 BECAUSE
WE WERE WORRIED , TO YOUR POINT ABOUT THE FORM
THAT IT WOULD NOT BE ENOUGH TIME TO GET THIS IN PLACE AND EDUCATE
PEOPLE. IT WAS A UNANIMOUS DECISION. THE OBAMA JUSTICE DEPARTMENT DID
NOT APPEAL OUR DECISION TO THE SUPREME COURT. THEY THOUGHT OUR
POSITION ACCOMMODATED THE INTEREST. THE PARTIES WOULD
ENSURE THAT AFRICAN AMERICANS IN SOUTH CAROLINA WERE ABLE TO VOTE
ON THE SAME BASIS AS BEFORE. I’M TALKING ABOUT MY RIGHT — WIFE
IN RECORD. GOING BACK TO GROWING UP. THE LOGICAL NOTE THAT I
WROTE ON RACE DISCRIMINATION TALKED ABOUT SOMETHING THAT I
KNOW YOU HAVE BEEN TALKING ABOUT A LOT WHICH WAS BIAS IN THE
CRIMINAL JUSTICE SYSTEM. I SAID AT THE END, BOTH RACIAL EQUALITY AND THE
APPEARANCE OF RACIAL EQUALITY WERE CRITICAL TO THE FAIRNESS OF
THE RACIAL JUSTICE SYSTEM. I PROVIDED MECHANISM FOR ROOTING
OUT DISCRIMINATION IN THE SELECTION PROCESS. WE TALKED
ABOUT IMPLICIT BIAS. I SPECIFICALLY TALKED ABOUT THAT
IN THAT DECISION. I HAVE BEEN A LEADER. THERE IS
TESTIMONY BEFORE CONGRESS ABOUT THE LACK OF CLERK HIRING AT THE
SUPREME COURT. JUSTICE THOMAS AND JUSTICE
BREYER WERE TESTIFYING BEFORE THE APPROPRIATIONS COMMITTEE.
THEY WERE ASKED ABOUT CLERKS AND LACK OF THEM AT THE SUPREME
COURT. THEY SAID IN ESSENCE WE ARE HIRING FROM THE LOWER
COURTS. I REMEMBER READING THAT AND REALIZING I NEED TO DO
SOMETHING ABOUT THAT. I AM ONE OF THEM. AFTER THAT I THOUGHT
WHAT CAN I DO? I DID NOT JUST SIT THERE. I THOUGHT WHAT CAN I
DO? I STARTED ON MY OWN GOING TO THE BLACK LAW STUDENTS
ASSOCIATION, EVERY YEAR STARTING IN 2012. I THINK I AM THE ONLY
JUDGE THAT HAS DONE SOMETHING LIKE THAT. I COLD CALLED THEM
AND SAID I WOULD LIKE TO SPEAK ABOUT MINORITY HIRING. I AM TOLD
THERE IS A PROBLEM. I SHOWED UP THE FIRST TIME WONDERING HOW IT
WOULD GO. I EXPLAINED AND GOT A GOOD CROWD FROM THE LAW STUDENTS
ASSOCIATION AND SAID WE NEED MORE LAW CLERKS. THERE IS A
PROBLEM. HERE IS WHY YOU SHOULD CLERK, HERE IS HOW YOU CLERK AND HERE ARE THE CLASSES YOU
SHOULD TAKE AND THE THINGS THAT YOU NEED. AT THE END OF THE
MEETING, I GAVE THEM MY TELEPHONE NUMBER AND EMAIL AND
SAID CONTACT ME ANYTIME IF YOU WANT HELP. IT WAS A BIG SUCCESS.
I HELPED STUDENTS GET CLERKSHIPS WITH OTHER JUDGES. IT WAS A SUCCESS. I HAVE GONE
BACK ALMOST EVERY YEAR. MORE GRADUATES OF THE SAME LAW
SCHOOL. A LOT OF PEOPLE CLERK FROM THERE. I HAVE CONTINUED TO
ENCOURAGE AFRICAN-AMERICAN LAW CLERKS. IT IS NOT JUST
ENCOURAGEMENT, I HAVE GIVEN THEM HELP AND ADVICE AND A SOURCE OF
COUNSEL. THAT IS BECAUSE I SAW PROBLEM OF THE KIND YOU ARE
TALKING ABOUT. IS ONE SMALL THING I SUPPOSE. THOSE ARE THE
FUTURE PEOPLE THAT WILL FIT HERE I THINK. I HAVE TRIED TO BE VERY
PROACTIVE INCLUDING MY OWN CLERK HIRING. THE WORLD NETWORKS THAT
PREVENTED WOMEN, AFRICAN-AMERICANS AND MINORITIES
, I HAVE BEEN AGGRESSIVE ABOUT BREAKING DOWN THE BARRIERS AND
BEING VERY PROACTIVE. I RECOGNIZE THAT PART OF THIS IS
PROFESSORS WITH RESEARCH ASSISTANCE. I HAVE DONE MY CASES . I UNDERSTAND YOU ARE CONCERNED
ABOUT THE SOUTH CAROLINA CASE. IF YOU LOOK AT THE BROADER
QUESTION ABOUT MY RECORD, I UNDERSTAND WHAT YOU’RE ASKING
ABOUT, A FEW COMMENTS, IF YOU LOOK I HOPE IT GIVES YOU CONFIDENCE
THAT I HAVE DONE MY BEST TO UNDERSTAND THE REAL-WORLD. ALSO
TO APPLY THE LAW FAIRLY AND PROACTIVE IN ADVANCING EQUALITY
FOR AFRICAN-AMERICANS.>>IT IS IMPORTANT. THE RULES OF
FAIRNESS AND THE RULES OF THE COMMITTEE REQUIRE US TO TREAT
WITNESSES WITH RESPECT SUCH THAT YOU CANNOT CROSS-EXAMINE SOMEONE
ABOUT A DOCUMENT THAT THEY CANNOT SEE. IN THE CIRCUMSTANCE , THE DOCUMENT THAT WAS REFERRED
TO BY MY DISTINGUISHED FRIEND AND COLLEAGUE WAS DESIGNATED AS
COMMITTEE CONFIDENTIAL. THERE ARE WAYS TO DEAL WITH IT. WE CAN
DEAL WITH IT IN A CLOSED SESSION SO THAT HE CAN SEE THE DOCUMENT
TO WHICH YOU ARE REFERRING OR WE CAN GO ABOUT DIFFERENT
PROCEDURES TO MAKE IT PUBLIC. WE HAVE ALREADY DONE THIS IN THE
SET OF HEARINGS WITH SENATOR LEAHY AND ANOTHER. IDENTIFY
DOCUMENTS THAT WERE IDENTIFIED AS COMMITTEE CONFIDENTIAL. WHAT
WE CANNOT DO IS REFER TO A DOCUMENT, CROSS-EXAMINE HIM
ABOUT THE DOCUMENT BUT NOT LET HIM SEE IT. WE WOULD NOT DO THAT
IN A COURTROOM AND WE CANNOT DO THAT IN A COMMITTEE. THE RULES
DO NOT ALLOW IT. I SUGGEST THAT WE GO THROUGH
PROPER PROCEDURE TO DEAL WITH THIS IN A CLOSED SESSION OR GO
TO THE PROCESS THAT THE OTHER SENATORS WENT THROUGH IN ORDER
TO ALLOW US TO ADDRESS THIS IN OPEN COMMITTEE. C THE OBJECTION
IS NOTED. —
>>THE OBJECTION IS NOTED. >>THAT IS WHY THE SYSTEM IS
RIGGED. WE HAVE BEEN ASKING. I HAVE LETTERS AND THE ONE EMAIL ENTITLED
RACIAL PROFILING , SOMEHOW IT IS DESIGNATED AS
SOMETHING THE PUBLIC CANNOT SEE. THIS WAS NOT PERSONAL
INFORMATION, THERE IS NO SECURITY ISSUE WHATSOEVER. THE
FACT THAT WE ARE NOT ALLOWING THESE EMAILS OUT AS I HAVE ASKED
, THAT IS WHY I SAY THE SYSTEM IS RIGGED. MORE THAN THAT, YOU
HAVE A SYSTEM WHERE WHOLE AREAS WHERE WE ARE
NOT ALLOWED TO LET THESE OUT. YOU’RE OPINING A PROCESS. THE
PROCESS IS UNFAIR, UNNECESSARY, UNJUST AND UNPRECEDENTED ON THIS
COMMITTEE. ? I’M TRYING TO BE FAIR TO
EVERYONE. SENATOR LEE WANTS TO RESPOND.
>>I WILL GO WITH YOU HAND IN HAND TO WORK WITH LEADERSHIP
STAFF TO GET THAT GOING. I AGREE WITH YOU. THERE IS NO REASON IT
SHOULD NOT BE SOMETHING WE CAN DISCUSS IN PUBLIC. I DO NOT KNOW
WHY IT WAS MARKED CONFIDENTIAL. WE HAVE TO FOLLOW PROCEDURE. I
WILL WORK WITH YOU ON IT.>>I DO NOT HAVE AN EMAIL.
>>I WANT TO COMPLIMENT YOU ON YOUR DEMEANOR. I MEAN THAT. YOU
ARE ON YOUR BEST BEHAVIOR. I APPRECIATE YOUR HUMILITY. WE KNOW FEDERAL JUDGES THAT CAN
STRUT SITTING DOWN. I APPRECIATE YOUR ATTITUDE AND DEMEANOR. I
MEAN THAT. >>THANK YOU VERY MUCH.>>I’M GOING TO ASK YOU A FEW
QUESTIONS ABOUT THE LAW. I AM TRULY NOT. I MAY HAVE TO
INTERRUPT YOU A FEW TIMES. JUST TO MOVE US ALONG. YOU HAVE BEEN NOMINATED FOR THE MOST POWERFUL UNELECTED
POSITION IN THE MOST POWERFUL COUNTRY IN HUMAN HISTORY. CONGRATULATIONS. YOU UNDERSTAND WHERE WE’RE
COMING FROM. THERE IS NO MARGIN FOR ERROR. WE HAVE TO GET THIS
RIGHT. YESTERDAY , I TALKED ABOUT THE FACT THAT
JUDGES HAVE LIMITS ON POWER. I DO NOT KNOW IF I SAID IT THIS
WAY, BUT I SAID I THINK IT IS INAPPROPRIATE FOR A FEDERAL
JUDGE TO TRY AND REWRITE THE CONSTITUTION EVERY OTHER
THURSDAY. TO ADVANCE AN AGENDA THAT EITHER HE OR SUPPORTERS
CANNOT GET BY VOTERS. YOU AGREE?>>OF COURSE. JUDGES INTERPRET
THE LAW. THEY DO NOT MAKE THE LAW. THAT IS NOT SOMETHING THAT
IS REPEATED A LOT. IT MATTERS. IF YOU KEEP THAT IN MIND IT
MATTERS. >>JUDGES ALSO HAVE ANOTHER DUTY
. FEDERAL JUDGES AND STATE COURT JUDGES HAVE AN OBLIGATION TO
PROTECT RIGHTS. EVEN IF THE MAJORITY WANTS TO TAKE THEM
AWAY. THAT IS WHY THEY CALL THEM IN ALIENABLE. I SAID THIS WHEN
JUDGE CORSETS WITH HERE. THE BILL OF RIGHTS IS NOT THERE FOR
THE HIGH SCHOOL QUARTERBACK OR THE PROM QUEEN. IS THERE FOR THE
PERSON THAT SEES THE WORLD DIFFERENTLY BUT HAS THE RIGHT TO
DO THAT. THAT IS IMPORTANT FOR A JUDGE.
CAN WE AGREE? >>ABSOLUTELY. THE BILL OF
RIGHTS PROTECTS ALL OF US. THAT INCLUDES —
>>THE MAJORITY MEANS THAT MOST OF
THE FOOLS ARE ON THE SAME SIDE. JUST BECAUSE YOU ARE THE
MAJORITY DOES NOT MEAN YOU ARE RIGHT.>>THAT IS THE EASY PART. I WANT
TO TALK ABOUT HOW WE GO ABOUT MAKING THESE DECISIONS. THAT HAS
TO DO WITH THE LANGUAGE. IF I TALKED ABOUT THE HOLY
TRINITY, YOU KNOW WHAT I AM TALKING ABOUT. THE SUPREME COURT
HAS REJECTED THE HOLY TRINITY DR. YOU TALKED ABOUT WE ARE NOW
TEXTURAL LISTS. WE ARE ORIGINALISTS. YOU CALLED IT
CONSTITUTIONAL TEXTUALISM. >>ORIGINAL MEANING AND
CONSTITUTIONAL TEXTUALISM. THOSE ARE THE SAME THING.
>>YOU START WITH THE LANGUAGE COLLETS TAKE A STATUTE. THE
FIRST QUESTION YOU ASK IS IS IT AMBIGUOUS OR UNAMBIGUOUS? ? IF THERE IS A CANON OF
DESTRUCTION THAT IS THERE THAT DEPENDS ON A FINDING OF
AMBIGUITY THAT WOULD BE THE QUESTION. OTHERWISE, YOU WOULD
SEE WHAT IS THE BEST MEANING? >>YOU READ THE STATUTE. YOU SAY
DOESN’T MAKE SENSE. EITHER DOES OR DOESN’T. HOW DO YOU DETERMINE
THAT? HOW AMBIGUOUS DOES IT HAVE TO
BE? DOES IT HAVE TO BE 100% AMBIGUOUS? 51% AMBIGUOUS? IS
THERE REALLY ANY PRINCIPLED WAY TO COMPARE CLARITY TO AMBIGUITY
OR DO SOME JUDGES USE IT AS AN EXCUSE TO GET TO THE CANONS OF
INTERPRETATION ABOUT WHICH THEY HAVE ALREADY READ IN THE BRIEF
TO DO WHAT THEY WANT TO DO. >>I HAVE SAID MANY TIMES IN MY
CASES AND TALKS TO STUDENTS, JUDGES SHOULD NOT BE SNATCHING
AMBIGUITY FROM CLARITY. THAT GOES RIGHT TO THE QUESTION. TO
THE BROADER QUESTION, THAT IS ONE OF MY CONCERNS ABOUT THE
CANONS OF CONSTRUCTION THAT DEPEND ON THE INITIAL FINDING OF
AMBIGUITY WHICH SOUNDS GREAT IN THEORY WHICH IS OH IF IT IS AMBIGUOUS,
GO TO THAT CANDIDATE — CANON OR THIS ONE. WHAT I HAVE FOUND,
THERE IS NOT A GOOD WAY TO FIND NEUTRAL PRINCIPLES ON WHICH TWO
OR THREE JUDGES CAN AGREE ON HOW AMBIGUOUS IS AMBIGUITY. THAT IS
HARD TO EVEN TALK ABOUT. THAT IS IN MY VIEW, FRUSTRATED
THE GOAL THAT I HAVE OF THE JUDGES UMPIRE OR THE APPLICATION
OF NEUTRAL PRINCIPLES AND THE RULE OF LAW. ULTIMATELY THAT HAS
CONCERNED ME. SOME OF THE CASES WHERE THAT HAS COME UP ARE BIG
DEAL CASES YET IT IS DEPENDENT ON THIS INITIAL DETERMINATION
THAT WHEN YOU UNPACK AND SIT IN THE CONFERENCE ROOM LIKE I DO,
IT TURNS OUT TO BE VERY HARD TO IMPLY IN AN EVENHANDED WAY.
>>YOU ADVOCATE THE BEST READING OF THE STATUTE. LET’S TALK ABOUT
THAT. I WANT TO TALK ABOUT IT NOT IN TERMS OF THE STATUTE BUT
THE SECOND AMENDMENT. YOU DEFINED A REGIONALISM AS
CONSTITUTIONAL TEXTUALISM. THE WAY TO INTERPRET THE
CONSTITUTION IS TO ASK YOURSELF, TELL ME IF I GET THIS WRONG, HOW WOULD A REASONABLE PERSON AT
THAT TIME HAVE UNDERSTOOD THE CONSTITUTION?>>THE ORIGINAL PUBLIC MEANING.
PRECEDENT IS A HUGE PART OF WHAT WE DO AND CONSTITUTIONAL LAW.
THE ORIGINAL PUBLIC MEETING — MEANING.>>IT IS ALMOST AN OBJECTIVE
TEST.>>IT IS AN OBJECTIVE TEST. YOU
TRY TO MAKE IT AS OBJECTIVE AS POSSIBLE. YOU ARE NOT LOOKING OUT THE
SUBJECTIVE INTENT OTHER THAN TO THE EXTENT THAT HELP SHOW.
>>IF YOU LOOK AT THE HELLER CASE. IT WAS NOT A BALANCING CASE. YOU
MADE THAT POINT CLEAR IN THE COURT OF APPEAL. IT WAS A TEXT
HISTORY AND TRADITION CASE. JUSTICE SCALIA WROTE THE
MAJORITY OPINION. JUSTICE STEVENS DISSENTED. THEY
BOTH TOOK AN ORIGINALIST APPROACH. I WENT BACK AND
LOOKED, JULIA RELIED ON FOUNDING ERA
DICTIONARIES , HE LOOKED AT ENGLISH LAWS,
AMERICAN COLONIAL LAW, BRITISH AND AMERICAN HISTORICAL
DOCUMENTS, COLONIAL ERA STATE CONSTITUTIONS, JUSTICE STEVENS ALSO USING AN ORIGINALIST APPROACH
LOOKED AT THE SAME DOCUMENTS AND ADDED HE RELIED ON LINGUISTIC
PROFESSORS AND –. ALSO A DIFFERENT EDITION OF THE
COLONIAL ERA DICTIONARIES AND JUSTICE SCALIA USED. HERE IS MY
QUESTION. DOESN’T THE ORIGINALIST APPROACH
JUST REQUIRE A JUDGE TO BE A HISTORIAN AND AN UNTRAINED ONE
AT THAT? WOULDN’T WE BE BETTER OFF HIRING A TRAINED HISTORIAN
TO GO BACK AND LOOK AT ALL OF THIS COMMENTARY?>>THE HELLER CASE WAS ONE OF
THE RARE CASES WHERE THE SUPREME COURT WAS DECIDING THE MEANING
OF A CONSTITUTIONAL PROVISION WITHOUT THE BENEFIT OF MUCH IF
ANY RELEVANT PRECEDENT. IN MOST PROVISIONS THERE HAS
BEEN A BODY OF CASES OVER TIME INTERPRETING THAT YOU DO NOT
HAVE TO DO THE KIND OF EXCAVATION THAT JUSTICE SCALIA
AND STEVENS DID IN THAT CASE. IT HAS BEEN DONE BEFORE. THE REASON
WHY THE SECOND AMENDMENT POSED A CHALLENGE IN THAT CASE IN TERMS
OF FIGURING IT OUT IS THE PREFATORY CLAUSE IN THE SECOND
AMENDMENT. THE QUESTION WAS DID THAT DEFINE THE SCOPE OF THE RIGHT OF THE PEOPLE TO
KEEP AND BEAR ARMS SHALL NOT BE INFRINGED OR DID THE PREFATORY
CLAUSE MEAN A PURPOSE BY WHICH THE RIGHT WAS RATIFIED AND YOU
NEED THE RIGHT AS WRITTEN, THE RIGHT TO KEEP AND BEAR ARMS
SHALL NOT BE INFRINGED. TO FIGURE OUT THE PREFATORY CLAUSE,
YOU HAD TO FIGURE OUT A GENERAL PROPOSITION HOW LEGAL DOCUMENTS
AT THE TIME USED PREFATORY CLAUSE IS AND WHAT THE PURPOSES
OF THOSE WERE. THAT REQUIRED A LOT OF HISTORICAL EXCAVATION BY
JUSTICES THAT HAD COMPETING POSITIONS.
>>FAIR ENOUGH. SOMEBODY COMMENTED YESTERDAY, WE TALKED ABOUT HOW JUDICIARY
WAS ONE OF THE CROWNING JEWELS OF THE GOVERNMENT AND IT
SEPARATES US FROM OTHER COUNTRIES. ONE OF THE REASONS SO MANY OF
OUR NEIGHBORS WANT TO COME HERE IS BECAUSE OF OUR INDEPENDENT
JUDICIARY. ANOTHER PROPERTY WILL BE PROTECTED. SINGLED US OUT. YOU NEVER READ ABOUT SOMEONE
TRYING TO SNEAK INTO CHINA. THEY WANT TO COME TO AMERICA. THERE
HAVE ALSO BEEN STUDIES , MANY PEOPLE THINK THE SUPREME
COURT IS A LITTLE CONGRESS AND IT IS POLITICAL. THAT IS
UNFORTUNATE. THAT MEANS WE LOSE CONFIDENCE IN
OUR INDEPENDENT JUDICIARY. I’M NOT SAYING IT IS TRUE.
PERCEPTION IS IMPORTANT. YOU THINK — DO YOU THINK HAVING CAMERAS
IN THE COURTROOM WOULD HELP? >>THAT IS AN ISSUE THAT I
THOUGHT ABOUT. LET ME GIVE YOU A PERSPECTIVE. WE HAVE GONE TO
SAME TIME AUDIO. WE STARTED WITH RELEASE OF TAPES LATER. NOW WE
ARE SAME TIME AUDIO IN OUR COURT. THAT HAS WORKED AT THE COURT OF
APPEALS LEVEL FOR US. I KNOW NOMINEES WHO HAVE SAT IN THIS
CHAIR HAVE EXPRESSED THE DESIRE FOR CAMERAS IN THE COURTROOM
ONLY TO GET TO THE SUPREME COURT AND CHANGE THEIR POSITION
RAPIDLY. THAT GIVES ME HUMILITY ABOUT MAKING CONFIDENT
ASSERTIONS ABOUT THAT. OF COURSE JOINING A TEAM OF NINE MEANS
THINKING ABOUT THAT IN HEARING THE PERSPECTIVE, WHY DID THEY
CHANGE THEIR POSITION? I WILL SAY ONE THING THAT I THINK IS
IMPORTANT. ORAL ARGUMENTS ARE A TIME FOR THE JUDGES TO ASK
TESTING QUESTIONS TO BOTH SIDES. THERE IS A PERCEPTION SOMETIMES
THAT A JUDGE IS LEANING ONE WAY OR THE OTHER. I CANNOT STAND
THAT KIND OF COMMENTARY ABOUT ORAL ARGUMENT. I HAVE ALWAYS
APPROACHED IT AS THE TIME TO ASK TOUGH QUESTIONS OF BOTH SIDES. I
DO WONDER WHETHER PEOPLE WOULD GET THE WRONG IMPRESSION OF ORAL
ARGUMENT. I’VE ALWAYS THOUGHT THAT THE ANNOUNCEMENT OF THE
SUPREME COURT DECISIONS WHEN THEY ISSUE OPINIONS, THAT IS A
DIFFERENT POINT IN TIME.>>WHAT DID YOU SAY JUSTICE
MARSHALL SAID? PEOPLE ARE NOT FOOLS.
>>THAT IS WHEN THE COURT IS
ANNOUNCING ITS DECISION. THAT IS THE DECISION OF THE COURT. ORAL
ARGUMENT, PEOPLE ARE ASKING TOUGH QUESTIONS OF BOTH SIDES.
SOMETIMES YOU THINK A PARTICULAR JUDGE THINKS THIS. I WILL STOP THERE.
>>I GET YOUR POINT. GOOD ARGUMENTS ON BOTH SIDES. I DO
THINK THE AMERICAN PEOPLE HAVE LOST CONFIDENCE IN THE
INSTITUTION OF THE SUPREME COURT AND CONGRESS AND THE PRESIDENCY.
IT IS IRONIC GIVEN MY GENERATION THAT THE ONLY INSTITUTION THAT
THE AMERICAN PEOPLE GIVE CONFIDENCE IN IS THE MILITARY.
THAT WAS NOT TRUE IN MY ERA. YOU HAVE TO TRUST THE PEOPLE. TO
MANY IN THE BELTWAY DO NOT. PEOPLE DO NOT READ ARISTOTLE
EVERY DAY BUT THEY GET IT. THEY WILL FIGURED OUT. LET ME ASK YOU
A COUPLE MORE QUESTIONS. YOU ARE AN ORIGINALIST.>>I PAY ATTENTION TO TEXT,
ORIGINAL MEANING BUT I ALWAYS WANT TO MAKE SURE I SAY
PRECEDENT. PRECEDENT IS IMPORTANT IN A
CONSTITUTIONAL CASE. >>THE FOCUSED OF AN ORIGINALIST
IS THE UNDERSTANDING OF THE CONSTITUTION BY THE PEOPLE AT
THE TIME IT WAS WRITTEN AND RATIFIED.
>>THE MEETING AS OPPOSED TO THE INTENT. I ALWAYS HAVE TO ADD
PRECEDENT. >>I GET IT. I’M NOT TRYING TO
TRICK YOU. ARE YOU WILLING TO OVERTURN
PRECEDENT THAT YOU THINK CONFLICTS WITH THE ORIGINAL PUBLIC
UNDERSTANDING OF THE DOCUMENT. >>THE SUPREME COURT’S RULES ON
PRECEDENT SETS FORTH A SERIES OF CONDITIONS THAT YOU LOOK FOR
BEFORE YOU CONSIDER WHEN TO OVERRULE.
>>I AM JUST ASKING, IF YOU COME UPON A CASE AND YOU SAY I AM ON
THE SUPREME COURT, I HAVE LOOKED AT THIS. THAT IS NOT WHAT THE PUBLIC
UNDERSTANDING WAS. >>THE FIRST INQUIRY IS WAS THE
PRIOR DECISION WRONG AND IF IT WAS GRIEVOUSLY WRONG, BECAUSE OF
THAT OR ANOTHER REASON YOU WOULD GO ON TO THE NEXT STEP. THAT IS
HOW THAT WOULD WORK IF I UNDERSTAND THE QUESTION
CORRECTLY. >>CAN WE AGREE THAT THERE WERE STATE CONSTITUTIONS
THAT PRECEDED THE FEDERAL CONSTITUTION?
>>THEY DID. THE FRAMERS DREW ON THE EXPERIENCE.>>THEY DREW FROM STATE
CONSTITUTIONS. CAN WE AGREE THAT EVERY STATE HAS A STATE
CONSTITUTION? IN FACT BEFORE THE FEDERAL
CONSTITUTION WAS EXTENDED , THE ONLY PROTECTION YOU HAD
FROM STATE GOVERNMENT WAS THE STATE CONSTITUTION. ? THAT IS CORRECT OTHER THAN THE
RIGHTS ARTICULATED IN ARTICLE 1, SECTION 10 OF THE ORIGINAL
CONSTITUTION. >>CAN WE AGREE THAT LET’S TAKE THE BILL OF RIGHTS.
THE FIRST AMENDMENT. CAN WE AGREE THAT THE FIRST AMENDMENT
SETS THE FLOOR? THE STATE FIRST AMENDMENT COUNTERPART CAN GIVE
YOU A GREATER RIGHT?? THAT IS CORRECT. JUSTICE BRENNAN WROTE AN ARTICLE
IN THE 70s. >>ENCOURAGING STATE LITIGANT AND
JUDGES TO THINK ABOUT WHAT YOU’RE SAYING.
>>IN FACT, SOME STATES HAVE. CALIFORNIA’S FIRST AMENDMENT,
THEY DO NOT HAVE A STATE ACTION REQUIREMENT. AM I CORRECT? ? I HAVE NOT LOOKED AT THE
CALIFORNIA CONSTITUTION RECENTLY. I WILL TAKE YOUR
UNDERSTANDING OF IT. >>THEY DO NOT. IN A PRIVATE
SHOPPING CENTER AS LONG AS IT IS A COMMON AREA, SOMEONE CAN
PROTEST. YOU HAVE A FIRST AMENDMENT RIGHT
UNDER THE STATE CONSTITUTION. >>THE ONLY QUESTION IS IS IT
CONFLICT WITH ANOTHER PROVISION OF THE FEDERAL CONSTITUTION.>>THAT IS MY QUESTION. WHAT
HAPPENS WHEN A STATE INTERPRETS HIS OWN FIRST AMENDMENT WHICH IT
CAN INSULATE FROM REVIEW BY YOU GUYS OR YOU SEEM TO BE GUYS ON THE
SUPREME COURT UNDER THE ADEQUATE AND INDEPENDENT STATE GROUND
DOCUMENT? IT CONFLICTS WITH THE FIFTH AMENDMENT PROPERTY RIGHT?>>ARTICLE 6 OF THE CONSTITUTION
MAKES CLEAR THAT THE FEDERAL CONSTITUTION IS THE SUPREME LAW.
THAT TRUMPS STATE LEGISLATION AND STATE CONSTITUTIONAL
DECISIONS. IN THAT INSTANCE, THE PROPERTY RIGHT PROTECTED IF
IT WERE DETERMINED THAT IT VIOLATED THE PROPERTY RIGHT IN
THE U.S. CONSTITUTION, THAT WOULD CONTROL.
>>THAT IS NOT WHAT THE SUPREME COURT SAID IN THE PRINTED CASE.
>>THE INTERPRETED THE PROPERTY NOT TO BE — I THINK I HAVE THE PREMISE. IF
YOU CONCLUDED THAT IT VIOLATED THE PROPERTY PROTECTION IN THE
U.S. CONSTITUTION THEN THE U.S. CONSTITUTION WOULD CONTROL AND THE SUPREME
COURT CONCLUDED THAT IT DID NOT VIOLATE THE PROPERTY RIGHTS
UNDER THE U.S. CONSTITUTION. >>I’M NOT GOING TO OUTSMART
YOU. YOU ARE RIGHT. YOU HAVE THE FIRST AMENDMENT
SPEECH RIGHT IN CALIFORNIA. THERE IS NO STATE ACTION
REQUIREMENT. THEY ALL SAID IT PLIES TO A
PRIVATE ENTITY LIKE A SHOPPING CENTER. I KNOW THAT JUSTICE KENNEDY HAS
TALKED ABOUT HOW THE INTERNET IS THE NEW PUBLIC ARENA. OTHER STATES HAVE ADOPTED THE
ENHANCED FIRST AMENDMENT RIGHT. I THINK NEW JERSEY HAS AND SOME
OTHER CASES. HOW CAN TWITTER AND CALIFORNIA SENSOR ANY MESSAGES? IF YOU LIVE IN CALIFORNIA AND
YOU HAVE A FIRST AMENDMENT RIGHT AND IT IS NOT LIMITED BY THE
STATE ACTION. >>THAT SOUNDS LIKE A
HYPOTHETICAL. I’M NOT PREPARED TO GIVE A FULL ANSWER ON IT. I
WILL GIVE YOU A BROADER CONCEPTION. ONE OF THE THINGS WITH
PROCEEDINGS FOR JUDGES AND NOMINEES ARE BACKWARD LOOKING.
ONE OF THE INTERESTING THINGS THAT I THINK ABOUT IS WHAT IS
THE FUTURE? WHAT ARE THE BIG ISSUES COMING DOWN THE PIKE? HOW TECHNOLOGY AFFECTS OUR
CONCEPTION OF SPEECH. HOW TECHNOLOGY AFFECTS FOURTH
AMENDMENT RIGHT AND CONCEPTION OF SEARCH AND SEIZURE AND
PRIVACY. ON THE WAR POWERS FRONT WHICH I WAS DISCUSSING BEFORE,
CYBER WAR AND HOW DOES THAT FIT IN WITH CYBER ATTACKS? THOSE ARE THREE THINGS THAT ARE
TECHNOLOGY ROOTED THAT SOMEONE SITTING IN THE SEAT 10 YEARS
FROM NOW ARE GOING TO BE CRITICAL ISSUES. WE THINK
BACKWARD LOOKING BUT WHAT OUR FUTURE CRISIS MOMENTS?
THERE WILL BE CRISIS MOMENTS FOR THE SUPREME COURT. THOSE ARE
UNPREDICTABLE. YOU WOULD NOT HAVE PREDICTED 9/11.
>>WHEN HE STOPPED YOU. I’M GOING TO RUN OUT OF TIME. I WANT TO TALK ABOUT CHEVRON
DEFERENCE FOR A SECOND. HERE IS MY UNDERSTANDING. THE STATUTE
HAS TO BE AMBIGUOUS. IF IT IS AMBIGUOUS, WE HAVE TO ADOPT THE
AGENCY INTERPRETATION EVEN IF IT IS NOT THE MOST REASONABLE. IT HAS TO BE HALFWAY REASONABLE. HERE’S WHAT I DO NOT UNDERSTAND.
THIS IS WHAT THE APA SAYS, THE REVIEWING COURT, NOT THE AGENCY,
SHALL DECIDE ALL RELEVANT QUESTIONS OF THE LAW, INTERPRET
CONSTITUTIONAL AND STATUTORY PROVISIONS AND DETERMINE THE
MEANING OR PUBLIC ABILITY — A QUICK ABILITY OF ACTIONS. THAT IS JUST THE COURT. WHY DO
WE HAVE TO DEFER TO A FEDERAL AGENCY?
>>IN MY ARTICLE IN THE HARVARD LAW REVIEW I POINTED OUT THAT
PROVISION AND DID SAY THAT CHEVRON WAS INTENTIONED WITH
THAT PROVISION. THEY CAN BEST MAKE IT CONCLUDED WHAT IT
CONCLUDED. AND HAS BEEN APPLIED OVER TIME. I POINTED OUT
PROBLEMS WITH IT IN TERMS OF PRACTICAL APPLICATION, THE
AMBIGUITY TRIGGER. YOU ARE POINTING OUT A PROBLEM
AT THE CORE. WHERE DID IT COME FROM TO BEGIN WITH?
>>IT ENCOURAGES MISBEHAVIOR. LET’S SUPPOSE THAT SENATOR
WHITEHOUSE OR SENATOR LEE RUNS FOR PRESIDENT. THEY ARE NOT
GOING TO RUN A GOOD LOOKS EVEN THOUGH THEY ARE GOOD-LOOKING
GUYS. THEY ARE GOING TO RUN ON POLICY. THEN THEY GET ELECTED. A
LOT OF TIMES THEY CANNOT GET THEIR BILLS PASSED. YOU KNOW
WHAT THEY DO, THEY GO TO ONE OF THEIR AGENCIES AND SAY I’M GOING
TO TAKE MY POLICY, SQUARE PEG AND PUT IT INTO A ROUND HOLE
WITH A STATUTE. AND WE HAVE TO FIND A JUDGE TO SAY THE STATUTE
IS AMBIGUOUS THEN WE CAN DO WHATEVER WE WANT. THAT IS NOT
RIGHT.>>THAT IS A PROBLEM I HAVE
IDENTIFIED IN THE REAL-WORLD APPLICATION OF CERTAIN BROAD
CONCEPTIONS OF DEFERENCE. IT IS AN ORCHESTRATED SHIFT OF
POWER FROM THE LEGISLATIVE BRANCH TO THE EXECUTIVE BRANCH.
THE PHENOMENON YOU DESCRIBED IS EXACTLY RIGHT. PRESIDENTS RUN
FOR OFFICE. IF YOU CAN’T GET LEGISLATION
THROUGH, YOU TRY TO SEE EXISTING AUTHORITIES WERE YOU CAN ACHIEVE
TO THE EXTENT POSSIBLE, YOUR POLICY. THEN HE PUSHED THE
ENVELOPE ON THE THEORY OF THERE IS AMBIGUITY IN THE OLD STATUTE.
SOMETIMES COURTS WILL UPHOLD IT. ALL PRESIDENTS HAVE DONE IT.
>>YOUR HANDS ARE TIED. THE STATUTE IS AMBIGUOUS, EVEN IF
THE INTERPRETATION IS NOT THE MOST REASONABLE. IT CAN BE THE
10th MOST REASONABLE. YOU HAVE TO GO WITH IT.
>>IF THE STATUTE IS AMBIGUOUS IT TURNS OUT TO BE A MORE
DIFFICULT INQUIRY. IT SAYS USE ALL OF THE RULES
BEFORE YOU GET TO THAT. I HAVE CITED IT DOZENS OF TIMES. YOU
HAVE TO MAKE SURE THAT YOU ARE NOT JUMPING TO QUICK TO
DIFFERING THE AGENCY’S INTERPRETATION. THE OTHER THING
IS THE MAJOR QUESTIONS AND RULES. THAT MEANS IF IT IS A PARTICULAR MAJOR
ECONOMIC OR SOCIAL SIGNIFICANCE YOU SHOULD NOT DEFER TO THE
AGENCY. THAT IS A BIG DEAL FOR CONGRESS.
>>I WANT TO ASK YOUR OPINION ABOUT UNIVERSAL INJUNCTIONS. I
DO NOT KNOW HOW MANY FEDERAL OR DISTRICT JUDGES WE HAVE. 8700.
— MAYBE 700. A SINGLE FEDERAL DISTRICT JUDGE CAN
FREEZE A LAW OR REGULATION. ONE OF THE 700 CAN ENJOIN A LAW — I AM GIVING MYSELF AN EXTRA 20
SECONDS NOW. ONE FEDERAL JUDGE CAN ENJOIN A LAW OR REGULATION
TO THE ENTIRE COUNTRY, EVEN IF EVERY OTHER JUDGE IN THE COUNTRY
SAYS I DO NOT AGREE. WHAT IS THE LEGAL BASIS? IT HAS TO BE A
STATUTE OR THE CONSTITUTION. >>THAT IS AN ISSUE THAT IS
BEING CONTESTED CURRENTLY IN COURTS AROUND THE COUNTRY. IT IS
AN ISSUE OF DEBATE. I BETTER SAY NOTHING ABOUT IT. IT IS AN ISSUE OF CURRENT
DEBATE. I APOLOGIZE.>>THIS IS NOT ABOUT TITLE IX
AND NOT ABOUT SEXUAL ASSAULT. I’M NOT AND ASKED THAT. I WILL
STRIKE IT. IS A PRIVATE SECURITY GUARD A
STATE ACTOR? >>NO. THERE ARE QUESTIONS OF
CONTRACTING AND IF YOU ARE A STATE CONTRACTOR AND THIS AND
THAT. >>IF A CITY PRIVATIZE IS ITS
ENTIRE POLICE FORCE, THEY ARE PRIVATE OFFICERS. DO THEY HAVE
TO COMPLY WITH THE CONSTITUTION? ? THAT IS WHY I POINTED OUT THE
CONTRACTING ISSUE. SOME SUPREME COURT CASE LAW SAYS YOU LOOK AT
THE CONTRACTING ISSUE AND I THINK THAT IS AN INTERESTING
QUESTION.>>HAVE YOU EVER DISCUSSED
SPECIAL COUNSEL MOELLER OR HIS INVESTIGATION WITH ANYONE?
>>IT IS IN THE NEWS EVERY DAY. >>HAVE YOU DISCUSSED IT WITH
ANYONE? >>WITH OTHER JUDGES.
>>HAVE YOU DISCUSSED THAT WITH ANYONE AT THE LAW FIRM FOUNDED
BY PRESIDENT TRANSPERSONAL LAWYER? BE SURE ABOUT YOUR
ANSWERS ARE — BE SURE ABOUT YOUR ANSWER. ARE YOU SURE YOU HAVE NOT HAD A
CONVERSATION AT CAST WITH, BENSON AND TORRES FOUNDED BY
MARK KASS WITH WHO IS PRESIDENT TRANSPERSONAL LAWYER. HAVE YOU
HAD ANY CONVERSATION ABOUT ROBERT MUELLER OR HIS
INVESTIGATION WITH ANYONE AT THAT FIRM? YES OR NO. I AM ASKING A VERY DIRECT
QUESTION. YES OR NO. >>I’M NOT SURE I KNOW EVERYONE
THAT WORKS THERE. >>YOU DON’T NEED TO. YOU NEED
TO KNOW YOU TALK TO. ARE YOU SAYING THAT WITH ALL
THAT YOU REMEMBER, YOU HAVE AN IMPECCABLE MEMORY. YOU HAVE BEEN
SPEAKING FOR ALMOST 8 HOURS ABOUT ALL SORTS OF THINGS YOU
REMEMBER. HOW CAN YOU NOT REMEMBER WHETHER OR NOT YOU HAD
A CONVERSATION ABOUT ROBERT MUELLER OR HIS INVESTIGATION
WITH ANYONE AT THAT FIRM? PLEASE ANSWER THE QUESTION.>>I’M TRYING TO THINK IF I KNOW
ANYONE THERE.>>THAT IS NOT MY QUESTION. HAVE
YOU HAD A CONVERSATION WITH ANYONE AT THAT FIRM ABOUT THE
INVESTIGATION? >>I WOULD LIKE TO KNOW THE
PERSON YOU ARE THINKING OF. >>I AM THINKING YOU ARE
THINKING OF SOMEONE AND YOU DO NOT WANT TO TELL US.
>>I WOULD LIKE TO RAISE AN OBJECTION. THIS TOWN IS FULL OF
FIRMS. >>FIRST OF ALL POSSIBLE CLOCK.>>THIS TOWN IS FULL OF LAW
FIRMS. THEIR PEOPLE. THERE ARE A LOT OF NAMES.>>YOU HAVE A RESPONSIBILITY TO
ALL AMERICANS. VOTE NO., BE A HERO AND ABOUT NOW. HE A HERO
AND ABOUT NOW. BE A HERO AND VOTE NO.>>ON THAT POINT, LAW FIRMS ARE BOUND. THE MOSTAFA
SIZE — THEY METASTASIZE AND BREAK
OFF. WE CANNOT EXPECT THE WITNESS TO KNOW WHO POPULATE AN
ENTIRE FIRM. –>>IF THERE ARE ANY LIST OF
NAMES, THAT IS FINE. IT IS UNFAIR TO SUGGEST THAT AN ENTIRE
FIRM SHOULD BE IMPUTED INTO THE WITNESS’S MEMORY WHEN HE DOES
NOT KNOW WHO WORKS THERE.>>MR. CHAIRMAN.
>>ARE YOU MAKING A POINT OF WATER?>>I AM TRYING TO FIGURE OUT THE
RULES. WE HAD A LONG DISCUSSION OF WHETHER OR NOT POINTS OF
ORDER ARE IN ORDER. WE WERE TOLD THAT ALL POINTS OF ORDER —
>>THERE HAS NOT BEEN A TIME IN THE
TWO DAYS WHERE SOMEONE HAS MADE AN INQUIRY WHERE THE CHAIR HAS
NOT RECOGNIZED A POINT OF INQUIRY.
>>MY POINT IS, IF THE RULE IS THAT NO ONE ON
OUR SIDE CAN MAKE A POINT OF ORDER, IT OUGHT NOT TO BE
APPROPRIATE FOR SENATOR LEE TO MAKE POINTS OF ORDER AFTER ALL
OF OURS WERE SILENCED ON THE BASIS THAT WE WERE IN A HEARING AND
NOT AN EXECUTIVE SESSION. IF WE HAVE MOVED OUT OF HEARING AND
INTO EXECUTIVE SESSION AND I AM HAPPY TO MAKE MOTION —
>>THE MERE FACT THAT YOU ARE SPEAKING RIGHT NOW MEANS THAT
YOU ARE ALLOWED TO MAKE A POINT OF ORDER. WHAT YOU ARE TALKING
ABOUT YESTERDAY WAS THE MOST NOTICE HERE THAT WAS OUT OF
ORDER BECAUSE IT WOULD EVERY WIRE DUST TO BE IN SESSION.
ANYONE THAT WANTS TO MAKE AN INQUIRY MAY DO SO — IT WOULD REQUIRE US TO BE IN
SESSION. ANYONE THAT WANTS TO MAKE AN INQUIRY MAY DO SO.
>>ANSWER MY QUESTION. HAVE YOU HAD ANY DISCUSSION WITH
ANYONE EVER ABOUT BOB MUELLER AND HIS INVESTIGATION.>>YOU SAID BOB MUELLER FOR. I
USED TO WORK IN THE ADMINISTRATION WITH HIM.
>>HAVE YOU HAD A CONVERSATION WITH ANYONE ABOUT HIS
INVESTIGATION. ASIDE FROM FELLOW JUDGES. ABOUT HIS INVESTIGATION. I ASKED THE QUESTION A MINUTE
AGO. I AM SURPRISED YOU FORGOT. HAVE YOU HAD THIS CONVERSATION
WITH ANYONE ABOUT THE INVESTIGATION THAT BOB MUELLER
IS CONDUCTING REGARDING RUSSIA INTERFERENCE WITH THE ELECTION
OR ANY OTHER MATTER? ? THE FACT THAT IT IS ONGOING
AND THE TOPIC IN THE NEWS EVERY DAY, I TALK TO FELLOW JUDGES. IT
IS IN THE COURTHOUSE IN DC. I GUESS THE ANSWER IS YES.
>>DID YOU TALK WITH ANYONE AT CAST WITH, BENSON AND TORRES.
>>I NEED TO KNOW WHO WORKS THERE.
>>YOU CAN ANSWER THE QUESTION WITHOUT A LIST OF EMPLOYEES.
>>I CANNOT. I DO NOT KNOW WHO WORKS THERE.
>>THAT IS THE ONLY WAY YOU WOULD KNOW WHO YOU SPOKE WITH?
THE QUESTION IS VERY DIRECT. DID YOU SPEAK WITH ANYONE AT THAT
FIRM ABOUT THE INVESTIGATION. >>I DO NOT KNOW EVERYONE WHO WORKS
THERE. I WANT TO BE CAREFUL. YOUR QUESTION WAS AND/OR. I WANT
TO BE VERY LITERAL. >>I WILL ASK MORE DIRECTLY. DID
YOU SPEAK TO ANYONE AT THAT LAW FIRM ABOUT HIS INVESTIGATION?>>I DO NOT REMEMBER ANYTHING
LIKE THAT. I WANT TO KNOW A ROSTER OF PEOPLE AND I WANT TO
KNOW MORE. >>YOU ARE NOT DENYING THAT YOU
DID THAT. I WILL MOVE ON. CLEARLY YOU ARE NOT GOING TO
ANSWER. WHEN WE MET WE TALKED ABOUT RACE
RELATIONS IN THE COUNTRY. THERE HAS BEEN A LOT OF TOTS WITH MY
COLLEAGUES ABOUT THE SUBJECT. WHEN YOU AND I MET, I BROUGHT UP
THE INCIDENT IN CHARLOTTESVILLE. WHEREAS IN OTHER WAS A RALLY BY
WHITE SUPREMACIST THAT LEFT A YOUNG WOMAN DEAD. THE PRESIDENT WHO NOMINATED YOU
DESCRIBED THE INCIDENT BY SAYING I THINK THERE IS BLAME ON BOTH
SIDES. THIS IS A SIMPLE QUESTION. DO YOU BELIEVE THERE
WAS BLAME ON BOTH SIDES? >>WE DID TALK. I ENJOYED OUR
MEETING. TO TALK ABOUT THE HISTORY OF THE COUNTRY, WE
TALKED ABOUT THAT AT LENGTH. WE TALKED ABOUT DISCRIMINATION.
I APPRECIATED YOUR OPENING STATEMENT YESTERDAY WHERE YOU
TALKED ABOUT YOUR EXPERIENCE. ONE OF THE PRINCIPLES THAT I
HAVE ARTICULATED THROUGHOUT THE HEARING IS THE INDEPENDENCE OF
THE JUDICIARY. >>I APPRECIATE IF YOU ANSWER
THE QUESTION. >>ONE OF THE PRINCIPLES I
TALKED ABOUT HIS THE JUDICIARY. ONE OF THE THINGS JUDGES DO,
FOLLOWING THE LEAD OF THE CHIEF JUSTICE, IS NOT — IS TO STAY
OUT OF CURRENT EVENTS AND TALKING ABOUT CURRENT EVENTS. AT
RISK CONFUSION ABOUT OUR ROLE. WE ARE JUDGES THAT DECIDE CASES.
WE DO NOT COMMENT ON CURRENT EVENTS. WE STAY OUT OF LYRICAL
CONTROVERSY. >>WITH DUE RESPECT MY TIME IS
LIMITED. ARE YOU SAYING IT IS TOO DIFFICULT OF A QUESTION OR A
QUESTION YOU CANNOT ANSWER? WHETHER YOU AGREE WITH THE
STATEMENT. ARE YOU SAYING YOU CANNOT ANSWER THAT QUESTION?
>>I’M SAYING THE PRINCIPAL OF THE JUDICIARY MEANS THAT I
CANNOT ASSERT MYSELF INTO POLITICS AND EITHER TWO WAYS,
COMMENTING ON POLITICAL EVENTS OR IN MY VIEW COMMENTING ON
THINGS SAID BY POLITICIANS, GOVERNOR, SENATOR OR
CONGRESSPERSON, PRESIDENT. I’M NOT HERE TO ASSESS COMMENTS MADE IN THE POLITICAL
ARENA. THE RISK IS I WILL BE DRAWN INTO THE POLITICAL ARENA.
>>I APPRECIATE YOUR POINT. THERE WERE SUCH A ROBUST
CONVERSATION, ESPECIALLY WITH MY COLLEAGUES. ON THE SUBJECT OF RACE, I RAISED
THIS QUESTION. WE CAN MOVE ON. HAVE YOU HEARD THE TERM RACIAL
SPOILED SYSTEM? >>YES. THAT IS A TERM THAT IS
SOMETIMES USED.? HE TWICE WROTE THE TERM IN THE WALL STREET
JOURNAL OPINION PIECE DESCRIBING A CASE THAT YOU DISCUSSED
PREVIOUSLY. THE RACIAL SPOILS SYSTEM WAS NEW TO ME. I LOOKED
IT UP. IN THE DICTIONARY SPOILS IS DEFINED AS QUOTE GOOD S GOODS
STOLEN OR TAKEN FORCIBLY. CAN YOU TAKE — CAN YOU TELL ME WHAT
RACIAL SPOILS SYSTEM MEANS TO YOU?
>>THE SUPREME COURT AFFIRMS THE POSITION THAT I HAD ARTICULATED
IN THE BRIEF 7-2. SECOND, THE STATE VOTING RESTRICTION HAD
ISSUE IN HAWAII. IT WAS A STATE OFFICE.
>>THAT IS NOT WHAT I ASKED YOU. PLEASE DEFINE THE TERM AS YOU
USED IT. WHAT DOES IT MEAN TO YOU?>>I NEED TO RAISE THE CASE. THE
STATE RESTRICTION IN THAT CASE DENIED HAWAIIANS OR RESIDENTS OF
HAWAII THE ABILITY TO VOTE ON THE BASIS OF RACE. IF YOU WERE
LATINO OR AFRICAN-AMERICAN, YOU COULD NOT VOTE.
>>I HEARD YOUR RESPONSE TO THAT EARLIER. MY QUESTION IS YOU USED
THIS TERM TWICE. I AM ASKING WHAT DOES THE TERM MEAN TO YOU.
>>I AM NOT SURE WHAT I WAS REFERRING TO THEN TO BE FRANK. I
WOULD HAVE TO SEE THE CONTEXT. WHAT I DO KNOW IS THE SUPREME
COURT BY 7-2 MARGIN AGREED WITH THE POSITION ARTICULATED . THE VOTING RESTRICTION WORSE
FOR A STATE OFFICE AND DENIED THE PEOPLE ABILITY TO VOTE ON
ACCOUNT OF RACE. >>I APPRECIATE THAT. YOU HAVE
BEEN FORTHCOMING ABOUT THE AMOUNT OF WORK AND PREPARATION
THAT YOU PUT INTO EVERYTHING THAT YOU DO. YOU HAVE LED ME TO
BELIEVE THAT YOU ARE VERY THOUGHTFUL ABOUT THE USE OF YOUR
WORDS AND YOUR KNOWLEDGE THAT WORDS MATTER. ESPECIALLY WORDS
COMING FROM SOMEONE LIKE YOU OR ANYONE OF US. I WOULD LIKE TO
KNOW WHAT YOU MEANT WHEN YOU USED THAT TERM. WE CAN MOVE ON.
I WILL SAY THIS, ARE YOU AWARE THAT THE TERM IS COMMONLY USED
BY WHITE SUPREMACISTS? >>I WROTE THAT 20 YEARS AGO IN THE CONTEXT OF A VOTING
RESTRICTION THAT DENIED AFRICAN-AMERICANS AND LATINOS
THE ABILITY TO VOTE IN HAWAII. I WAS REPRESENTING A CLIENT WHEN I
ARTICULATED THAT. THE ANSWER TO YOUR QUESTION IS NO.
>>IT IS SOMETHING THAT YOU SHOULD KNOW. THE SAME YEAR THAT
YOU WROTE, A MAGAZINE PUBLISHED A COVER STORY THAT IS DESCRIBED
AS BEING A WHITE SUPREMACIST MAGAZINE, PUBLISHED A STORY
ABOUT WHAT IT CALLED THE RACIAL SPOILS SYSTEM OF AFFIRMATIVE
ACTION THE DOUBLE STANDARD IN CRIME, SENSITIVITY TOWARD BLACK
DEFICIENCY AND EVERYTHING ELSE. THE SAME YEAR THAT IT WAS WRITTEN, WHILE
BLACKS ARE REGARDED AS THE RECOGNIZED EXPERT IN THE GAME OF
RACIAL SHAKEDOWN, IT IS AMERICAN INDIANS THAT MAY BE THE REAL
GENIUSES AT OBTAINING RACIAL SPOILS. WE CAN MOVE ON. MY CONCERN IS IT
IS A LOADED TERM. IT WOULD BE IMPORTANT TO KNOW THAT SOMEONE
WHO MAY SERVE ON THE UNITED STATES SUPREME COURT WOULD BE
AWARE THAT THE USE OF CERTAIN TERMS WILL HAVE A PROFOUND
MEANING. THEY ARE LOADED AND ASSOCIATED WITH A CERTAIN
PERSPECTIVE AND SOMETIMES A CERTAIN AGENDA.>>I TAKE YOUR POINT. HAWAII WAS
DENYING LATINOS AND AFRICAN-AMERICANS THE ABILITY TO
VOTE AT THE TIME. I TAKE YOUR POINT.
>>THE SUPREME COURT SAID STATES COULD NOT PROHIBIT MARRIED OR
UNMARRIED PEOPLE FROM USING CONTRACEPTIVES. DO YOU BELIEVE
GRISWOLD AND EISENSTADT WERE CORRECTLY DECIDED?
>>THOSE CASES FOLLOWED THE SUPREME
COURT’S RECOGNITION OF RIGHTS IN THE PEER SANDMEYER CASES. WHAT
THOSE CASES HELD IS THERE IS A RIGHT OF PRIVACY.
>>DO YOU AGREE THAT THESE CASES
WERE CORRECTLY DECIDED.>>TO GO BACK TO PEER SANDMEYER,
THOSE CASES RECOGNIZE THE RIGHT OF PRIVACY. THE ABILITY OF FAMILY AUTONOMY
OR PRIVACY IS THE TERM UNDER THE LIBERTY CLAUSE OR THE DUE
PROCESS CLAUSE OF THE 14th AMENDMENT.>>I AM ASKING, DO YOU AGREE
THAT THE CASES WERE RIGHTLY DECIDED?
>>I THINK JUSTICE WHITE’S CONCURRENCE IS A PERSUASIVE
APPLICATION. THAT SPECIFICALLY ROOTED THE GRISWOLD RESULT IN THE PEER SANDMEYER DECISIONS.
I THOUGHT THAT WAS A PERSUASIVE OPINION.
>>YOU BELIEVE IT WAS CORRECTLY DECIDED?
>>GIVEN THE PEER SANDMEYER OPINIONS, LIKE I SAID, JUSTICE
WHITE’S CONCURRENCE IN GRISWOLD WAS A PERSUASIVE APPLICATION OF
YOUR SANDMEYER. I HAVE NO ORAL WITH IT. — NO QUARREL WITH IT.>>THERE WAS A TERM THAT THEY
USED SAYING THE CASES WERE CORRECT. ARE YOU WILLING TO
AGREE THAT THOSE CASES WERE CORRECTLY DECIDED?
>>I AGREE WITH ALITO AND ROBERT.
>>DO YOU BELIEVE THE RIGHT TO
PRIVACY PROTECTS A WOMAN’S CHOICE TO TERMINATE A PREGNANCY?>>THAT IMPLICATES ROE VERSUS
WADE. FOLLOWING THE LEAD OF THE NOMINEES FOR THE SUPREME COURT , ALL EIGHT CURRENTLY SITTING
JUSTICES HAVE RECOGNIZED THAT TWO PRINCIPLES ARE IMPORTANT.
WHEN WE SHOULD NOT TALK ABOUT CASES OR ISSUES THAT ARE LIKELY
TO COME BEFORE THE SUPREME COURT OR COULD COME BEFORE THE COURT.
SECONDLY JUSTICE KAGAN PROVIDED THE BEST ARTICULATION. SHE SAID
WE COULD — SHOULD NOT GIVE A THUMBS UP
OR DOWN. >>YOU ALSO KNOW THAT JUSTICE
GINSBURG AND HER HEARING HAD THIS IS SOMETHING CENTRAL TO A
WOMAN’S LIFE TO HER DIGNITY. IT IS A DECISION SHE MUST MAKE FOR
HERSELF. WHEN GOVERNMENT CONTROLS THAT DECISION FOR HER
SHE IS BEING TREATED AS LESS THAN A FULLY ADULT HUMAN
RESPONSIBLE FOR HER OWN CHOICES. YOU AGREE WITH JUSTICE GINSBURG? ? SHE WAS TALKING ABOUT
SOMETHING SHE HAD PREVIOUSLY WRITTEN ABOUT ROE VERSUS WADE.
EVER SAID — THE OTHER SEVEN JUSTICES HAVE
BEEN ASKED AND DECLINED AN ANSWER.
>>I WANT TO UNDERSCORE, IT IS
ROOTED IN JUDICIAL INDEPENDENCE.>>I APPRECIATE THAT . I’M GLAD YOU MENTIONED THAT
GINSBURG HAS WRITTEN ABOUT IT. YOU ALSO HAVE WRITTEN ABOUT IT.
THAT WAY YOU AND JUSTICE GINSBURG ARE SIMILAR. YOU BOTH
PREVIOUSLY HAVE WRITTEN ABOUT ROE. MY QUESTION IS DO YOU AGREE
WITH HER STATEMENT OR IN THE ALTERNATIVE CAN YOU
RESPOND TO THE QUESTION OF WHETHER YOU BELIEVE A RIGHT TO
PRIVACY PROTECTS A WOMAN’S CHOICE TO TERMINATE PREGNANCY?
>>I HAVE NOT ARTICULATED AN OPINION. I FEEL DUTY BOUND TO
FOLLOW A MATTER OF JUDICIAL INDEPENDENCE. NONE OF THE SEVEN
OTHER JUSTICES, WHEN THEY WERE NOMINEES HAVE TALKED ABOUT THAT. NORBERT HELLER NOR ABOUT
CITIZENS UNITED ABOUT LOPEZ VERSUS UNITED STATES, THURGOOD
MARSHALL, JUSTICE BRENNAN.>>AS IT RELATES TO THIS
HEARING, YOU ARE NOT ANSWERING THE QUESTION. WE CAN MOVE ON.
CAN YOU THINK OF LAWS THAT GIVE GOVERNMENT THE POWER TO MAKE
DECISIONS ABOUT THE MALE BODY?>>I AM HAPPY TO ANSWER A
SPECIFIC QUESTION .
>>MALE VERSUS FEMALE. LET ME REPEAT. CAN YOU THINK OF
ANY LAWS THAT GIVES THE GOVERNMENT THE POWER TO MAKE
DECISIONS ABOUT THE MAIL BODY?>>I AM NOT THINKING OF ANY
RIGHT NOW. >>WHEN REFERRING TO CASES YOU
HAVE DESCRIBED THEM AS PRESIDENT AND QUOTE RESIDENT ON PRESIDENT. — PRECEDENT ON PRECEDENT. CAN
FIVE SUPREME COURT JUDGES OVERTURN
PRECEDENT IF THE CASE COMES BEFORE THEM ON THAT ISSUE?
>>YOU START WITH A SYSTEM THAT IS ROOTED IN THE CONSTITUTION.
>>FIVE JUSTICES IF AN AGREEMENT
CAN OVERTURN A PRECEDENT. DO YOU AGREE?
>>THERE ARE REASONS THE SUPREME COURT DOES NOT DO THAT.
>>YOU AGREE THAT IT CAN DO THAT?>>THERE ARE TIMES. THERE IS A
SERIES OF CONDITIONS. THOSE MAKE IT RARE. IT IS NOT A MATTER OF POLICY TO
BE DISCARDED. >>THERE IS NOTHING THAT
PREVENTS THE COURT FROM DOING IT. IT IS NOT PROHIBITED. THE
COURT IS NOT PROHIBITED FROM OVERRULING OR OVERTURNING
PRECEDENT THE MATTER WHAT THE STEPS ARE? THE COURT MAY
OVERRULE PRECEDENT. DO YOU BELIEVE THAT THIS CAN
HAPPEN NO MATTER HOW LONG THE PRECEDENT HAS BEEN ON THE BOOKS?
THERE IS NO STATUTE OF LIMITATIONS FOR EXAMPLE. YOU
AGREE? >>FOR EXAMPLE THIS PAST YEAR
THE COURT SAID DORMONT TWO HAD BEEN OVERTURNED AND ACCORDED
HISTORY. THAT IS THE CASE THAT ALLOWED INTERNMENT DURING WORLD
WAR II.>>SO YOU AGREE THERE IS NO
STATUTE OF LIMITATIONS. THE COURT CAN GO BACK AS FAR AS IT
WANTED IF IT BELIEVED IT IS WARRANTED. THERE IS NOTHING THAT
PREVENTS THE COURT FROM REACHING BACK MANY YEARS?>>I WOULD SAY THERE ARE A
SERIES OF CONDITIONS AND THE EDGE OF THE PRECEDENT AS THE
COURT HAS ARTICULATED. IT DOES ADD TO THE FORCE OF THE
PRECEDENT AND MAKE IT MORE RARE.>>THANK YOU. I HAVE A COUPLE OF QUESTIONS
ABOUT VOTER SUPPRESSION. FOR 50 YEARS THE VOTING RIGHTS
ACT PROTECTED AGAINST RACIAL DISCRIMINATION IN VOTING. THEN CAME THE COURT’S DECISION
IN SHELBY AND BY A 5-FOR ABOUT THE COURT EFFECTIVELY ENDED
FEDERAL APPROVAL REQUIREMENT. THE MAJORITY BELIEVE THAT THE
REQUIREMENT HAD OUTLIVED IT USEFULNESS. THAT WAS PART OF THE
RULING. ESSENTIALLY SAYING THE THREAT OF RACE -RELATED VOTER
SUPPRESSION HAD DIMINISHED. MY QUESTION IS, ARE YOU AWARE
WITHIN WEEKS OF THE SUPREME COURT RULING, REPUBLICAN
LEGISLATORS IN NORTH CAROLINA RUSHED THREE LAUNDRY LIST OF NEW
VOTING RESTRICTIONS? RESTRICTIONS THAT
DISENFRANCHISED RACIAL MINORITY. IT IS A YES OR NO. ARE YOU
AWARE? >>I RECALL READING ABOUT
EFFORTS IN THE AFTERMATH. I BELIEVE THE SUPREME COURT
CONCERN WAS WITH THE FORMULA THAT WAS USED FOR WHICH STATES
WERE COVERED BY THE REQUIREMENT. I DO NOT BELIEVE THE COURT SAID
THAT CONGRESS WAS PRESCRIBED FROM GOING BACK AND REDOING THE
FORMULA. I BELIEVE WHAT THE COURT SAID. I
AM NOT SAYING WHETHER I AGREE OR DISAGREE. THE FORMULA HAD NOT
BEEN UPDATED TO REFLECT CURRENT CONDITIONS. PRECLEARANCE — NOT SAYING PRECLEARANCE WAS
PRECLUDED. >>ARE YOU AWARE AS IT RELATES
TO THE NORTH CAROLINA ACTION THAT THE FEDERAL COURT OF APPEAL HELD THAT THESE RESTRICTIONS
INTENTIONALLY DISCRIMINATED AGAINST AFRICAN-AMERICAN VOTERS,
TARGETING THEM WITH ALMOST SURGICAL PRECISION?
ARE YOU AWARE OF THAT RULING?>>I AM AWARE OF VOTER ID
LITIGATION.>>ARE YOU AWARE THAT
REPUBLICANS IN TEXAS, ALABAMA, MISSISSIPPI, GEORGIA AND FLORIDA
HAVE IMPLEMENTED NEW RESTRICTIONS AGAIN
DISPROPORTIONATELY DISENFRANCHISING MINORITY
VOTERS?? I AM NOT AWARE OF ALL OF THE SPECIFICS BUT I DO FOLLOW
ELECTION LAW BLOGS AND UPDATES TO KEEP AWARE OF DEVELOPMENTS.
>>WOULDN’T YOU AGREE THEN IT IS TROUBLING? IT IS
COMPOUNDING WITH THE RECENT PROPOSAL TO CLOSE MORE THAN TWO
THIRDS OF POLLING PLACES IN RANDOLPH COUNTY GEORGIA WHERE
MORE THAN 60% OF THE RESIDENTS ARE BLACK. WOULD YOU AGREE THAT
THAT IS TROUBLING? >>I AM NOT AWARE OF THE
SPECIFIC. BUT IN SOUTH CAROLINA WHAT I TRIED TO MAKE CLEAR IS
THE REALITY OF RACIAL DISCRIMINATION IN AMERICA EXISTS . THE MARCH FOR RACIAL EQUALITY
IS OVER. COURTS MUST SCRUTINIZE EFFORTS TO LOOK FOR
DISCRIMINATORY INTENT OR EFFECTS. EFFECTS THEMSELVES CAN BE
PROBLEMATIC. >>DO YOU BELIEVE THAT THE COURT
AND SHALL BE UNDERESTIMATED THE DANGER THAT WAS PRESENTED IN
TERMS OF STATES WILLINGNESS TO RESTRICT THE RIGHT TO VOTE.? —
>>I WANT TO UNDERSCORE AS I RECALL THE OPINION. IT SAID
CONGRESS ITSELF COULD ADJUST THE FORMULA FOR PRECLEARANCE. I DO
NOT THINK CONGRESS HAS DONE SO. >>THERE WILL HAVE TO BE SOME
RECOURSE, DO NOT YOU AGREE. IF CONGRESS IS UNWILLING TO ACT, TO
GIVE THEM DUE PROCESS IN TERMS OF EQUAL ACCESS SO THAT THEY CAN
VOTE? OTHERWISE WE ARE LOOKING AT WIDESPREAD
DISENFRANCHISEMENT. >>THERE IS SECTION 2 THAT ALLOWS
LITIGATION BROUGHT BY PLAINTIFFS TO CHALLENGE VOTING RESTRICTIONS
THAT ARE ENACTED WITH DISCRIMINATORY INTENT OR
EFFECTS. >>YOU BELIEVE IT IS
CONSTITUTIONAL?? THAT IS A HYPOTHETICAL.
>>YOU REFERRED TO IT. I ASSUME YOU THINK IT IS CONSTITUTIONAL
IF YOU SEE IT AS A TOOL. >>I DO NOT WANT TO PRE-COMMIT.
SECTION 2 IS AN IMPORTANT TOOL FOR VOTING RIGHTS ENFORCEMENT. THE VOTING RIGHTS ACT OF 1965 IS
ONE OF THE MOST CONSEQUENTIAL AND EFFECTIVE STATUTES EVER
PASSED BY CONGRESS. THE HISTORY IS WELL KNOWN. THE VOTING RIGHTS
BEFORE 1965 WERE ABYSMAL BECAUSE OF THE RESTRICTIONS THAT WERE IN
PLACE. THE IMMEDIATE EFFECTS OF THE VOTING RIGHTS ACT OF 1965
WERE ENORMOUS. IT IS VERY IMPORTANT FOR PEOPLE TO
UNDERSTAND. >>IN THE HEARING IN 2005, CHIEF
JUSTICE ROBERTS, WHEN ASKED ABOUT ACTION TO AND WHETHER IT
IS CONSTITUTIONAL SET I HAVE NO BASIS FOR VIEWING IT AS
CONSTITUTIONALLY TESTAMENT. I DO NOT. DO YOU AGREE WITH CHIEF
JUSTICE ROBERTS THAT THE LAW IS NOT CONSTITUTIONALLY SUSPECT OR
DO YOU HAVE A DIFFERENT VIEW? >>I DO NOT HAVE ANY BASIS FOR
VIEWING IT THAT WAY. IF YOU ASK ME ABOUT ANY STATUTE, I WANT TO
BE CAREFUL. I DO NOT KNOW WHAT ARGUMENTS COULD COME UP. I WANT
TO PRESERVE THE JUDICIAL INDEPENDENCE AND HAVE NOT
RECOMMITTED. — PRE-COMMITTED. >>AFTER YOU ARE NOMINATED YOU
HAD A CHANCE TO INTRODUCE YOURSELF TO THE AMERICAN PEOPLE.
USED IT IN THE EAST ROOM OF THE WHITE HOUSE AND THANKED THE
PRESIDENT FOR YOUR NOMINATION AND SAID NO PRESIDENT HAS
CONSULTED MORE WIDELY OR TALKED WITH MORE PEOPLE FROM MORE
BACKGROUND TO SEEK INPUT ABOUT A SUPREME COURT NOMINATION. BY MY COUNT, THERE HAVE BEEN 163
NOMINATIONS. UNLESS YOU HAVE PERSONAL
KNOWLEDGE ABOUT EVERY ONE OF THESE BEFORE YOURS INCLUDING WHO
THE PRESIDENT CONSULTED WITH , I CANNOT IMAGINE THAT YOU HAVE
THE KNOWLEDGE, MY QUESTION IS, DID SOMEONE TELL YOU TO SAY
THAT? >>THOSE WERE MY OWN WORDS. THAT WAS IN TERMS OF THINKING
ABOUT WHAT WAS POSSIBLE BEFORE CELL PHONES ETC.. ALSO THINKING
ABOUT THE HISTORY. I ALSO KNOW IN THAT 12 DAY PERIOD, PRESIDENT
TRUMP TALKED TO AN ENORMOUS NUMBER OF PEOPLE. I THINK
PRESIDENT CLINTON WHEN I LOOK BACK, AS I RECALL HAD A PROCESS THAT
WAS VERY WIDE AS WELL. THAT WAS MY ANALYSIS OF THE SITUATION.
THOSE WERE MY WORDS, ENTIRELY MY WORDS. I THOUGHT IT WAS
IMPORTANT . I WAS DEEPLY IMPRESSED BY THE
THOROUGHNESS OF THE PROCESS. I SAID AS MUCH YESTERDAY AND IN
THE EAST ROOM. THE 12 DAY PROCESS, AT LEAST IT SEEMED WITH
ME A THOROUGH PROCESS.>>I’M GOING TO FOLLOW UP WITH
QUESTIONS FOR THE RECORD.>>JUDGE KAVANAUGH , WE STARTED IS 12 POINT HOURS
AGO. I’M AMAZED THAT YOU HAVE BEEN ABLE TO CONTINUE TO RESPOND
IN THE YOU HAVE. I’M GOING TO COVER A COUPLE OF THINGS AND
KEEP COMMENTS LIMITED SO THAT WE CAN GET YOU WITH A DECENT NIGHTS
SLEEP. IF YOU MINUTES AGO YOU WERE ASKED QUESTIONS ABOUT
EMAILS THAT YOU ARE INVOLVED IN. YOU DID NOT GET AN OPPORTUNITY
TO SEE THEM. YOU HAD NOT SEEN THEM BEFORE. I HAD NOT EITHER.
WHEN I HEARD THEM READ, I THOUGHT THEY WERE BEING
PRESENTED AS YOUR WORDS AND COME TO FIND OUT BECAUSE YOU ASKED
QUESTIONS, THEY WERE SOMEONE ELSE’S WORDS. I DID LOOK INTO
READING THEM. THERE IS A REASON WHY YOU DO NOT HAVE THEM. THAT
IS BECAUSE THEY ARE CLEARLY MARKED COMMITTEE CONFIDENTIAL.
SENATOR LEE BROUGHT UP THE POINT WHEN THE GENTLEMAN FROM NEW
JERSEY WAS SPEAKING, WE WOULD WORK HARD TO LOOK AND SEE IF WE
COULD GET THE DOCUMENTS CLEARED. I POINT OUT THAT THEY WERE MADE
AVAILABLE TO EVERYONE ON THIS COMMITTEE. ANY STAFF THAT
SUPPORTS A SENATOR ON THIS COMMUNITY AS WELL ON AUGUST 22.
THE LAST CONFIRMATION PROCESS WITH CORSETS THERE WAS THAT
COURTESY — CORSET GORE SUCH — THE LAST CONFIRMATION PROCESS
HAD THE SAME THING. THE REASON WE HONOR THE
CONFIDENTIALITY REQUIREMENTS AS WE BECOME STEWARDS OF DOCUMENTS
THAT WE ARE PROVIDED UNDER THE RECORD THAT. NOW WE ARE GOING TO
GO BACK AND TRY TO CLEAR THE DOCUMENTS. I ENCOURAGE MY
COLLEAGUES THAT IF YOU HAVE NOT TAKEN THE TIME IN THE WEEKS THAT
THESE DOCUMENTS WERE AVAILABLE TO GO THROUGH A PROCESS THEN
PLEASE DO SO BEFORE YOU DISCLOSE SUCH INFORMATION BEFORE THE
HEARING. THAT WAY WE CAN SEE IF THE INFORMATION IS MADE
AVAILABLE. I WILL ASSUME THAT SENATOR LEE
WILL WORK WITH SENATOR BOOKER TO SEE IF THAT IS POSSIBLE. I ALSO
WANT TO GO BACK TO KACZYNSKI FOR A MINUTE. YOU CAN TAKE A BREAK.
I DO NOT EXPECT YOU TO RESPOND TO ANY OF THIS. I WILL GET TO A
COUPLE OF QUESTIONS. YOU WERE ASKED BY JUDGE KACZYNSKI. I
THINK YOU WERE APART FROM HIM ABOUT 27 YEARS
AGO. YOU ARE NOT ALLOWED TO ANSWER THOSE QUESTIONS. — I THINK YOU WERE A CLERK FOR
HIM ABOUT 27 YEARS AGO. YOU WERE NOT ALLOWED TO ANSWER THOSE
QUESTIONS. IS ONE THING FOR THE PEOPLE IN
THE BACK TO SPEAK OVER YOU AND MAKE IT DIFFICULT FOR YOU. I
FIND IT INSULTING WHEN MEMBERS HERE ASKING QUESTIONS AND NEVER
GIVE YOU A CHANCE TO RESPOND. ARE YOU JUDGE KACZYNSKI? NO. ALL
OF THIS WAS ABOUT SOMEONE ELSE’S BEHAVIOR FOR WHOM YOU CLERKED 27
YEARS AGO. SOME OF MY COLLEAGUES ARGUE
BECAUSE YOU CLERKED WITH HIM AND YOU KNEW HIM THAT YOU KNEW
EVERYTHING ABOUT HIM. THIS IS WHAT IS INTERESTING TO ME. IT
TURNS OUT, YOU’RE NOT THE ONLY JUDGE THAT HAS CLERKED FOR JUDGE
KACZYNSKI. PAUL WAUKEE CLERKED FOR JUDGE
KACZYNSKI. SHE HIGHLIGHTED THAT FACT. CHUCK
WATFORD — JUDGE WATFORD WORKED WITH JUDGE KACZYNSKI FOR
ABOUT FIVE YEARS. DO NOT RESPOND TO THIS EITHER. IF WE ARE GOING TO ASK SOMEONE
THAT CLERKED FOR A JUDGE 27 YEARS AGO, WHY DID YOU NOT KNOW
EVERYTHING? PERHAPS I WOULD LIKE COPIES OF LETTERS FROM THE
SENATE THAT SHOULD SEND LETTERS TO JUDGE WATFORD AND ASKING THE
SAME QUESTION. NOW FURTHER, WE HAVE A DOUBLE STANDARD. WE HAD A MEMBER IN THE U.S.
SENATE FACED WITH ALLEGATIONS FOR SEXUAL HARASSMENT BY WOMEN.
WHEN THOSE ALLEGATIONS SURFACED THAT INCLUDED PHOTOGRAPHS. IN TERMS OF THE BEHAVIOR IN
QUESTION. WHEN REPORTERS ASKED MEMBERS ABOUT THEIR THOUGHTS ON
THAT AND WHETHER OR NOT THEY SHOULD RESIGN, THAT IS NOT A
DISTRACTION THAT WE SHOULD DEAL WITH IN THE SENATE. I FEEL LIKE
TOMORROW, IF WE GO DOWN THIS PATH, WE SHOULD BE PREPARED TO
FULLY EXPLORE TWO — THE DOUBLE STANDARD IN
QUESTIONS WE SHOULD HAVE FOR OTHER PEOPLE THAT WORKED FOR
JUDGE KACZYNSKI. NOW GO BACK QUICKLY. THE THING THAT YOU SAID
MULTIPLE TIMES I THINK IS IMPORTANT. WE HAVE HAD A NUMBER
OF DISCUSSIONS ABOUT THE VOTING RIGHTS ACT. ALSO DENYING VARIOUS
PEOPLE THE RIGHT TO VOTE. IN THIS CASE, THE CASE WAS ABOUT
POTENTIALLY DENYING PEOPLE IN THE STATE OF HAWAII, THE RIGHT
TO VOTE, BASED ON ETHNICITY. LATINOS, AFRICAN AMERICANS AND
ASIAN AMERICANS. CAN YOU TELL ME MORE ABOUT THAT HERE>>IT WAS THE OFFICE OF HAWAIIAN
AFFAIRS. IT WAS A STATE OFFICE. THEY RESTRICTED VOTING FOR THAT
OFFICE AND DENIED VOTING TO PEOPLE WHO WERE RESIDENTS AND
CITIZENS OF HAWAII BUT WERE NOT OF THE CORRECT RACE. THEREFORE
AFRICAN-AMERICANS AND LATINOS AND ASIAN AMERICANS AND WHITES
IN HAWAII WERE BARRED FROM VOTING FOR THAT OFFICE. THE
SUPREME COURT HELD THAT WAS A VIOLATION OF THE 14th AND 15th
AMENDMENTS OF THE U.S. CONSTITUTION. BY A 7-TO MAJORITY
. — 7-2 MAJORITY.>>NOW ONE FUN THING THAT YOU
MAY HAVE TO DO DAMAGE REPAIR ON. YESTERDAY WHEN YOU INTRODUCED
MARGARET AND ELIZA — MARGARET AND LIZA , YOU SAID SHE GIVES THE BEST
HUGS IN THE WORLD. THE YOU MENTIONED TO SENATOR GRAHAM THAT
MARGARET CAME DOWN AND GAVE YOU A SECOND HUG. IS SHE TRYING TO MAKE UP
QUANTITY WITH QUALITY? I AM SURE IT WAS AN ACT OF LOVE.
>>MARGARET IS 13. HUGS HER FEWER AND FAR BETWEEN WHEN
YOU’RE THAT AGE. SHE GAVE ME AN EXTRA HUG LAST NIGHT.
>>IN THE NEXT COUPLE OF MINUTES, WE HAD PEOPLE TALK
ABOUT YOU BEING AN ADVOCATE FOR BIG BUSINESS AND FOR THE RICH.
YOU WOULD BE SOMEONE THAT WOULD BE BEHOLDING TO YOUR BOSS OR AT
LEAST THE PERSON THAT NOMINATED YOU. I WANT TO GO BACK THROUGH AND
TALK ABOUT A FEW THINGS THAT HAD BEEN DISCUSSED. THE BERRY
MEETING — THEY BEAR REPEATING. I WAS IN THE WHITE HOUSE WHEN
THE PRESIDENT NOT — ANNOUNCED HER NOMINATION. YOU MENTIONED
THE FIRST DATE WITH YOUR WIFE ASHLEY WAS ON SEPTEMBER 10. IS
THAT RIGHT? SEPTEMBER 10, 2001. WE KNOW WHAT
HAPPENED THE NEXT DAY. ALL OF THE TERRIBLE EVENTS THAT
YOU HAD TO DEAL WITH INCLUDING A PRESIDENT THAT SAID THIS COULD
NEVER HAPPEN AGAIN. THAT WAS THE CULTURE FOR THE WHOLE TIME YOU
WERE IN THE OFFICE. THEN YOU MOVED FORWARD A FEW YEARS AND
YOU WERE ON THE CIRCUIT. YOU HAD PERSONALLY EXPERIENCED
AN EVACUATION IN A BUILDING YOU THOUGHT COULD BE AT RISK. YOU
WORKED WITH THE PRESIDENT WHO WAS PERSONALLY VERY MUCH
INVESTED IN TRYING TO PROTECT THE AMERICAN PEOPLE. THEN YOU
HAD THIS CASE. IN THIS CASE, TELL ME WHAT YOU DID?
>>IT INVOLVED AN ASSOCIATE OF OSAMA BIN LADEN. IT CAME TO US
THROUGH MILITARY CONVICTION. THE QUESTION WAS WHETHER IT VIOLATED
EX POST FACTO PRINCIPLES. WHAT THAT MEANS IS WERE YOU BEING
CONVICTED OF SOMETHING THAT WAS NOT A LAW IN PLACE AT THE TIME
OF THE ACT. I SAID IT WAS A VIOLATION.
>>WE REVERSED THE CONVICTION. >>THERE ARE PROBABLY A COUPLE OF
CASES THAT I DID NOT LIKE THE WAY YOU RULED BUT YOU DID IT FOR
THE RIGHT REASON. THERE’S ANOTHER ONE, A GROUP THAT
SUPPORTS ABORTION RIGHTS. WHAT DID YOU DO?
>>THEY WERE CHALLENGING AND FEC REGULATION THAT PROHIBITED HOW
MUCH MONEY THEY COULD RAISE AND HOW THEY COULD RAISE IT. I WROTE
THE MAJORITY OPINION INVALIDATING THOSE RESTRICTIONS
AND RULED FOR THEM IN THAT CASE.>>ANOTHER ONE I FIND INTERESTING.
I DIDN’T LIKE IT BUT I UNDERSTAND IT. THE REPUBLICAN
NATIONAL COMMITTEE WERE — VERSUS THE FEC.
>>THERE WERE RESTRICTIONS ON FUNDRAISING AND DONATIONS TO THE
REPUBLICAN PARTY. THAT WAS IN THE WAKE OF CITIZENS UNITED,
THEY WERE ARGUING THAT OTHER ASPECTS WERE NO LONGER GOOD LAW. I WROTE
THE OPINION REJECTING THE CHALLENGE AND RULING FOR THE FEC
IN THAT CASE. >>ANOTHER ONE THAT INVOLVED
ANOTHER BOSS. A PRIOR BOSS THAT IS SITTING RIGHT THERE. THAT WAS ADAMS VERSUS RICE. TELL
ME ABOUT THAT. >>THAT WAS A DISCRIMINATION
CASE THAT INVOLVED SOMEONE WHO HAD
HAD BREAST CANCER AND WAS DISCRIMINATED AGAINST IN HER JOB
ON THAT BASIS. I JOINED AN OPINION RULING THAT
WAS UNLAWFUL DISCRIMINATION AND RULED AGAINST THE GOVERNMENT.
THAT CASE THE SECRETARY OF STATE IN HER OFFICIAL CAPACITY BUT THE
GOVERNMENT RULED AGAINST THEM. >>SOME HAVE SAID YOU ARE NOT
FOR THE EMPLOYEES YOU ARE FOR BIG CORP. RATIONS. TELL ME ABOUT
STEVENS VERSUS US AIRWAYS. >>THAT IS THE CASE WHERE I
WROTE IN FAVOR OF A GROUP OF RETIRED AIRLINE PILOT WHO WERE
IN A DISPUTE ABOUT RETIREMENT COMPENSATION WITH US AIRWAYS. I
WROTE AN OPINION FAVORING THE PILOTS.
>>YOU ALREADY COVERED U.S. VERSUS –. TELL ME ABOUT YOUR ENVIRONMENTAL
CASES, THE AMERICAN TRUCKING CASE.
>>THAT INVOLVED A CALIFORNIA AIR QUALITY REGULATION. THE
ARGUMENT BY INDUSTRY WAS THAT THE REGULATION WAS IMPERMISSIBLE
UNDER THE FEDERAL ENVIRONMENTAL STATUTES AND ENVIRONMENTAL LAW.
IN ESSENCE IT PREEMPTED — I WROTE THE MAJORITY OPINION
REJECTING THE INDUSTRIES CHALLENGE IN THAT CASE WHICH
ALLOW THE CALIFORNIA LAW. THERE WAS A DISSENTING OPINION THAT WOULD HAVE VALIDATED THE
CALIFORNIA REGULATION. I WROTE THE MAJORITY OPINION.
>>THERE WERE OTHER PEOPLE THAT EXPRESSED CONCERN ABOUT THIS.
PEOPLE SUGGESTED THAT YOU ARE UNFRIENDLY TO THE LG BT Q
COMMUNITY. MY INFORMATION IS CORRECT, AS EARLY AS 2003, YOU
PARTICIPATED IN A MEETING WITH 200 MEMBERS OF THE LOG CABIN
REPUBLICANS TO SOLICIT INPUT AND FEEDBACK. I WAS CURIOUS IF YOU HAVE A RECOLLECTION OF
THAT MEETING AND WHAT PROMPTED YOU TO GO THERE.
>>AS A MEMBER WORKING IN THE WHITE HOUSE COUNSEL’S OFFICE ON
JUDICIAL NOMINATIONS IN PARTICULAR BUT OTHER ISSUES, WE
WOULD HAVE OUTREACH TO GROUPS. ONE OF THEM WAS THE LOG CABIN
REPUBLICANS. I WENT AND SPOKE WITH THEM AS A REPRESENTATIVE OF
THE BUSH WHITE HOUSE TO TALK AS I RECALL ABOUT JUDICIAL
NOMINATIONS. I CANNOT REMEMBER THE SPECIFICS. I MAY HAVE SPOKEN
ABOUT OTHER INITIATIVES AND RECEIVED FEEDBACK.
>>I’M GLAD YOU DID THAT. I THINK IT IS INTERESTING BECAUSE
SOME PEOPLE HAVE NOT GIVEN YOU A CHANCE TO ANSWER THE QUESTION
BUT SUGGEST YOU WOULD BE UNFRIENDLY TO THE LGBTQ
COMMUNITY. THE HUMAN RIGHTS CAMPAIGN PUT A
STATEMENT OUT THAT SAID IN FACT, YOU HAVE NEVER BEEN INVOLVED IN
ANY LEGISLATION INVOLVING LGBTQ ISSUES. IS THAT CORRECT? ? I DO
NOT BELIEVE I HAVE HAD ANY CASES .
>>THEY MADE IT CLEAR THAT YOU HAVE
NOT BEEN INVOLVED. >>BOTH CASES WERE NOT THROUGH
OUR COURT. I DO NOT REMEMBER ANY SPECIFICS AS A JUDGE BUT I HAVE
HAD INVOLVING THOSE ISSUES. >>I WOULD HOPE THAT IF IT COMES
UP TOMORROW THAT’S PERHAPS THEY FOUND SOME EVIDENCE THAT YOU
HAVE.>>I’M GOING TO TRY AND DO WHAT
THEY DID YESTERDAY. BE THE MEMBER THAT SPOKE THE LEAST. I’M
GOING TO DO SOMETHING A LITTLE BIT DIFFERENT. I FOUND OUT THAT
I CAN. I’M GOING TO RESERVE MY TIME FOR TOMORROW. I WILL PROBABLY GO LAST AND
PROBABLY WILL NOT. I WANT TO AGAIN THANK YOU FOR
BEING HERE. I WANT TO PARTICULARLY THANK THE PEOPLE
THAT HAVE BEEN SITTING IN THE CHAIRS. YOU HAVE THE MOST
UNCOMFORTABLE POSITION IN THE CHAMBER. YOU HAVE A FAR MORE
COMFORTABLE CHAIR THAN THE PEOPLE SITTING BEHIND YOU. I AM
SURE THEY ARE READY TO GET UP. WE APPRECIATE YOU BEING HERE. I
ALSO HAVE SOME WRAP-UP COMMENTS. I WANT TO THANK MEMBERS ON BOTH
SIDES OF THE AISLE. CONSISTENT WITH MY OLD SPEAKER
SELF, I HAVE KEPT A RUNNING TOTAL ON HOW MANY PEOPLE WENT
OVER AND HOW MUCH TIME. THEY DID AN EXTRAORDINARY JOB GIVEN THE
COMPLEXITY OF THE ISSUE. TECHNICALLY SPEAKING, SENATOR
WHITEHOUSE HAS YIELDED BACK ABOUT THREE SECONDS. WE CAN
BRING THAT IN TOMORROW. I THINK THERE WAS A DIFFERENCE
IN TERMS OF WHAT WE SAW HERE. IT IS THE RIGHT WAY TO RUN THESE
COMMITTEES. JUDGE KAVANAUGH I WANT TO THANK YOU FOR YOUR
PATIENCE AND STAMINA. YOU ARE MORE THAN HALFWAY DONE. THESE
WERE 30 MINUTE ROUNDS. TOMORROW WILL BE 20 MINUTE. I SUSPECT
THAT THE CHAIR WILL ASK MEMBERS TO STAY WITHIN THEIR TIME
LIMITS. WE WILL BE BACK HERE TOMORROW MORNING AT 9:30 AM. FOR THE INFORMATION OF ALL OF
THE MEMBERS, WE WILL STAND IN RECESS AND RECONVENE TOMORROW AT
9:30 AM FOR THE 20 MINUTE ROUNDS. THANK YOU.? THANK YOU
SENATOR.

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