LIVE: Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 2)
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LIVE: Confirmation hearing for Supreme Court nominee Judge Brett Kavanaugh (Day 2)


>>>GOOD MORNING, EVERYBODY. WE WELCOME EVERYBODY BACK AGAIN, AND 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 PORTMAN AND ATTORNEY LISA BLATT. 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. NBC NEWS REPORTED THAT DEMOCRATIC MEMBERS OF THE COMMITTEE PLOTTED WITH MINORITY LEADER TO DISRUPT THE HEARING YESTERDAY. DEMOCRATIC SENATORS INTERRUPTED THE HEARING 63 TIMES BEFORE LUNCH AND IN THE AUDIENCE 70 PEOPLE WERE ARRESTED YESTERDAY WHO WERE FOLLOWING THEIR LEAD. ALL PROBABLY VERY CONSTITUTIONALLY PREPARED TO DO THAT, DOING WHAT THE CONSTITUTION SAYS THE RIGHT OF FREEDOM OF SPEECH, BUT WE ALSO WERE ABLE TO FINALLY CONDUCT OUR HEARING THE WAY IT SHOULD BE CONDUCTED. YESTERDAY WAS JUST OPENING STATEMENTS. THERE WAS ONLY — IT WAS ONLY OUR TIME AS COMMITTEE MEMBERS THAT WE WASTED ON DISRUPTION AND DISORDER OVER PROCEDURAL MATTERS. BUT TODAY IS DIFFERENT.>>[ INAUDIBLE ]. >>SENATOR GRASSLEY, I TAKE OFFENSE. I DON’T SEE HOW YOU CAN SAY THAT I WAS WORKING WITH SENATOR DURBIN. WE ARE NOT WORKING WITH THE DEMOCRATS. WE ARE WORKING FOR OURSELVES.>>IT WAS OUR TIME AS COMMITTEE MEMBERS YESTERDAY TO MAKE OUR CASE, TODAY IS DIFFERENT. TODAY IS THE DAY THAT THE AMERICAN PEOPLE ARE SUPPOSED TO HEAR FROM THE NOMINEE. THIS MORNING WE WILL BEGIN OUR QUESTIONING OF 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 THAT THIS WILL BE AROUND 12:15, WHICH WILL HOPEFULLY COINCIDE WITH THE FLOOR VOTE THAT’S ALREADY SCHEDULED. THIS WOULD BE A THREE-MINUTE — OR 30-MINUTE BREAK FOR VOTE AND LUNCH, BUT, JUDGE, IF YOU WOULD LIKE TO TAKE A BREAK ANY OTHER TIME, LET US KNOW. WE ARE HAPPY TO ACCOMMODATE THAT. AND 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 HAVE OFFERED 307 JUDICIAL OPINIONS AND HUNDREDS MORE TOTALING 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 A LEGAL POSITION — YOUR LEGAL POSITION FROM AT LEAST 12 OPINIONS. THE SENATE JUDICIARY COMMITTEE HAS RECEIVED DOZENS OF STRONG LETTERS OF SUPPORT FROM HUNDREDS OF PEOPLE, MANY OF WHOM YOU KNOW BEST, FROM ALL ACROSS THE POLITICAL AND IDEOLOGICAL SPECTRUM, AND THE AMERICAN BAR ASSOCIATION HAS GIVEN YOU ITS HIGHEST RATING, UNANIMOUSLY WELL QUALIFIED. 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 DON’T DISAGREE WITH THEIR JUDGMENT. AND THAT COULD BE FOR ANYBODY COMING BEFORE THE UNITED STATES SENATE. 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 INDEPENDENT COUNSEL INVESTIGATION OF PRESIDENT CLINTON. HE WROTE A VERY STRONG LETTER IN SUPPORT OF YOUR CONFIRMATION, QUOTE, BRETT IS THE MOST QUALIFIED PERSON ANY REPUBLICAN PRESIDENT COULD POSSIBLY HAVE NOMINATED. WERE THE SENATE TO FAIL TO CONFIRM BRETT, IT WOULD NOT ONLY MEAN PASSING UP THE OPPORTUNITY TO CONFIRM A GREAT JURIST, BUT IT WOULD ALSO UNDERMINE CIVILITY IN POLITICS TWICE OVER. FIRST IN PLAYING POLITICS WITH SUCH AN OBVIOUSLY QUALIFIED NOMINEE, AND THEN AGAIN IN LOSING THE OPPORTUNITY TO PUT SUCH A STRONG ADVOCATE OF DECENCY AND CIVILITY ON OUR NATION’S HIGHEST COURT. MR. BENNETT ALSO SPEAKS HIGHLY OF YOUR INTEGRITY AND TO YOUR FAIRNESS AND OPEN-MINDEDNESS. SO WITHOUT OBJECTION I WOULD ENTER THAT LETTER IN THE 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 CONSTITUTIONAL SYSTEM IS INDEPENDENCE, INDEPENDENCE COMES DIRECTLY FROM ARTICLE 3 OF THE CONSTITUTION. THE INDEPENDENCE OF THE FEDERAL JUDGES REALLY IS GUARANTEED BY 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, SO I THINK THE FIRST THING THAT MAKES A GOOD JUDGE IS INDEPENDENCE, NOT BEING SWAYED BY POLITICAL OR PUBLIC PRESSURE. THAT TAKES SOME BACKBONE. THAT TAKES SOME JUDICIAL 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 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 WHERE CHIEF JUSTICE BERGER 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 SUBPOENA TO DISCLOSE INFORMATION. THOSE GREAT MOMENTS OF INDEPENDENCE AND UNANIMITY ARE IMPORTANT. RESPECT FOR PRECEDENT IS ANOTHER ONE. WE ARE A SYSTEM OF CONSTITUTIONAL PRECEDENT. PRECEDENT IS NOT JUST A JUDICIAL POLICY, IT’S SOMETIMES STATED THAT IT’S JUST A POLICY. IT COMES RIGHT FROM ARTICLE 3 OF THE CONSTITUTION. ARTICLE 3 OF THE CONSTITUTION REFERS TO THE JUDICIAL POWER. WHAT DOES THAT MEAN? WHAT DOES JUDICIAL POWER MEAN? JUDICIAL POWER YOU LOOK AT FEDERALIST 78 AND WHAT’S DESCRIBED THERE IS A SYSTEM OF PRECEDENT. SO PRECEDENT IS ROOTED RIGHT INTO THE CONSTITUTION ITSELF AND IS CONSTITUTIONALLY DICTATED TO PAY ATTENTION AND PAY HEED TO THE RULES OF PRECEDENT. BEYOND THAT, BEING A GOOD JUDGE MEANS PAYING ATTENTION TO THE WORDS THAT ARE WRITTEN. THE WORDS OF THE CONSTITUTION, THE WORDS OF THE STATUTES THAT ARE PASSED BY CONGRESS, NOT DOING WHAT I WANT TO DO, NOT DEFERRING WHEN THE EXECUTIVE REWRITES THE LAWS PASSED BY CONGRESS, BUT RESPECT FOR THE LAWS PASSED BY CONGRESS, RESPECT FOR THE LAW, THE WORDS PUT INTO THE CONSTITUTION ITSELF. THAT’S PART OF BEING A GOOD JUDGE. THAT’S PART OF BEING INDEPENDENT. THAT’S PART OF PRECEDENT. AND THEN I WOULD SAY BEING A GOOD JUDGE THERE ARE HUMAN QUALITIES IN TERMS OF THE INTERACTION. ALTHOUGH THESE CONFIRMATION PROCESSES FOCUS ON ONE PERSON, AS IF YOU ARE MAKING ALL THE DECISIONS, AS I SAID YESTERDAY, I’M JOINING A TEAM OF NINE, IF I WERE FORTUNATE ENOUGH TO BE CONFIRMED. AND THAT MEANS SOMETHING. IT MEANS SOMETHING IN SPORTS, IT MEANS SOMETHING IN JUDGING. I DON’T MAKE DECISIONS BY MYSELF. FOR THE LAST 12 YEARS I HAVE NOT BEEN MAKING DECISIONS BY MYSELF. EVERY CASE HAS BEEN IN A PANEL OF AT LEAST THREE JUDGES. YOU LEARN FROM EACH OTHER WHEN YOU ARE DECIDING CASES. YOU WORK WITH EACH OTHER WHEN YOU ARE DECIDING CASES. SO HAVING COLLEGIALITY AND CIVILITY AS JUSTICE KENNEDY SHOWED US SO POWERFULLY REPEATEDLY WITH HOW HE CONDUCTED HIMSELF OVER THE YEARS. THAT’S VERY IMPORTANT BECAUSE THOSE GREAT MOMENTS THAT I WAS TALKING ABOUT AT THE BEGINNING, LIKE UNITED STATES VERSUS NIXON, LIKE BROWN V. BOARD, THE COURT CAME TOGETHER IN UNANIMOUS DECISIONS AND THE UNANIMITY OF THE DECISIONS ADDED FORCE. THAT TOOK INTERNAL INTERACTION, THAT TOOK COLLEGIALITY. SO I THINK, YOU KNOW, I’VE TRIED TO BE A VERY COLLEGIAL JUDGE, I’VE TRIED TO BE CIVIL. I WANT, MR. CHAIRMAN, THE LOSING PARTY, THE LOSING PARTY IN EVERY CASE TO COME OUT AND SAY, KAVANAUGH GAVE ME A FAIR SHAKE, HE WAS WELL PREPARED, HE WROTE A CLEAR OPINION, HE EXPLAINED EVERYTHING. I DISAGREE, BUT AT LEAST I GET IT. SO I WANT THE LOSING PARTY AND I WANT BOTH PARTIES TO WALK OUT AT ORAL ARGUMENT TO SAY HE HAD AN OPEN MIND, HE GAVE ME A FAIR SHAKE AND I THINK I’VE DONE THAT FOR 12 YEARS, I’VE TRIED TO DO THAT CONSISTENTLY. EVERYTHING YOU DO AS A JUDGE MATTERS IN TERMS OF BEING A GOOD JUDGE. ORAL ARGUMENT, WRITING OPINIONS, HOW YOU DECIDE. SO THOSE ARE THE QUALITIES, I GUESS, THE LAST THING I ALWAYS REMEMBER ABOUT IT IS THE THING I SAID MY MOM TOLD ME IN THE FIRST INSTANCE, JUDGING IS NOT JUST ABOUT THEORY, IT’S NOT THEORY, IT’S NOT JUST WHAT A LAW REVIEW ARTICLE IS. JUDGING IS REAL PEOPLE IN THE REAL WORLD AND EVERY DECISION WE MAKE, NO MATTER HOW HIGH-MINDED IT MIGHT SOUND, AFFECTS REAL PEOPLE IN THE REAL WORLD WITH REAL INTERESTS AND WE HAVE TO REMEMBER THAT IN HOW WE EXPLAIN THE DECISIONS. THANK YOU, MR. CHAIRMAN.>>NOW, FOLLOWING UP ON THE WISE WORDS OF SENATOR SASSE YESTERDAY ON SEPARATION OF POWERS, YOUR RECORD BEFORE THE SENATE INCLUDES MORE THAN 10,000 PAGES OF JUDICIAL WRITINGS OVER YOUR DOZEN YEARS. WE HAVE OVER 440,000 PAGES OF E-MAILS AND OTHER RECORDS FROM YOUR LEGAL SERVICE AT THE WHITE HOUSE AND JUDGE STAR AND YOU HAVE WRITTEN EXTENSIVELY ON THE ISSUE OF OUR CONSTITUTION’S SEPARATION OF POWER AMONG THE THREE BRANCHES AND KEY COMPONENT OF THE SEPARATION OF POWERS IS THE INDEPENDENT JUDICIARY. OBVIOUSLY EVERYBODY LEARNS IN EIGHTH GRADE CIVICS ABOUT JUDGES INTERPRETING LAW. THE JUDICIARY MUST CONTINUE TO BE THE LEAST POLITICAL AND LEAST DANGEROUS BRANCH. A JUDGE’S SOLE JOB IS TO FIND AND APPLY THE LAW EVENLY AND FAIRLY WITHOUT REGARD TO THE PRESIDENT WHO NOMINATED HIM, THE SENATORS WHO VOTED FOR HIM, THE PARTIES BEFORE HIM AND THE POLITICAL CONSEQUENCES OF HIS JUDICIAL DECISION. SO, JUDGE, LET’S DISCUSS JUDICIAL INDEPENDENCE FROM THE EXECUTIVE BRANCH. NO ONE, NOT EVEN THE PRESIDENT, IS ABOVE THE LAW. SOME OF MY COLLEAGUES HAVE CRITICIZED YOUR VIEWS OF PRESIDENTIAL AUTHORITY, SUGGESTING WRONGLY IN 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 WHETHER YOU HAVE ANY TROUBLE RULING AGAINST A PRESIDENT WHO APPOINTED YOU AND AGAINST THE EXECUTIVE BRANCH IN ANY CASE BEFORE YOU. YOU PARTLY TALKED ABOUT TO BEGIN WITH. YOU’RE CORRECT. NO ONE IS ABOVE THE LAW IN OUR CONSTITUTIONAL SYSTEM. FEDERALIST 69, HAMILTON MAKES CLEAR ALL WAYS THAT THE EXECUTIVE BRANCH IS DESIGNED BY THE FRAMERS OF THE CONSTITUTION WAS DIFFERENT FROM THE MONARCHY. UNDER OUR SYSTEM OF GOVERNMENT, THE EXECUTIVE BRANCH IS SUBJECT TO THE LAW, SUBJECT TO THE COURT SYSTEM, AND THAT’S AN IMPORTANT PART OF FEDERALIST 69, IT’S AN IMPORTANT PART OF THE CONSTITUTIONAL STRUCTURE. IN GENERAL, SO, TOO, WE AS JUDGES ARE SEPARATE FROM THE CONGRESS. WE’RE NOT SUPPOSED TO BE INFLUENCED BY POLITICAL PRESSURE FROM THE EXECUTIVE OR FROM THE CONGRESS. WE ARE INDEPENDENT. WE MAKE DECISIONS BASED ON LAW, NOT BASED ON POLICY. NOT BASED ON POLITICAL PRESSURE, NOT BASED ON THE IDENTITY OF THE PARTIES NEW YORK CITY MATTER WHO YOU ARE, IN OUR SYSTEM. NO MATTER WHERE YOU COME FROM. NO MATTER HOW RICH YOU ARE, HOW POOR ARE YOU. NO MATTER YOUR RACE, YOUR GENDER, NO MATTER YOUR STATION IN LIFE. NO MATTER YOUR POSITION IN GOVERNMENT. IT’S ALL EQUAL JUSTICE UNDER LAW. LOOK AT OUR EXAMPLES IN HISTORY. I ALWAYS WILL GO BACK TO THE GREAT MOMENTS IN OUR HISTORY WHERE THESE PRINCIPLES WHICH SOUND ABSTRACT IF YOU’RE JUST DESCRIBING THEM, WERE ACTUALLY IMPLEMENTED. AND I GO BACK TO YOUNGSTOWN STEEL. AND YOU THINK ABOUT, IT’S A 6-3 DECISION WHERE THE SUPREME COURT RULES THAT PRESIDENT TRUMAN HAS VIOLATED THE LAW BY SEIZING THE STEEL MILLS. NOW THIS IS A TIME OF WAR. A TIME OF WAR WHERE LOTS OF AMERICANS WERE KILLED. WHAT’S INTERESTING TO ME, JUSTICE CLARK, WE DON’T USUALLY TALK ABOUT JUSTICE CLARK IN THAT DECISION, HE WAS APPOINTED BY PRESIDENT TRUMAN TO THE SUPREME COURT. WHAT A MOMENT OF JUDICIAL INDEPENDENCE THERE. TO RULE IN THAT CASE. YOU THINK ABOUT JUSTICE JACKSON. WHO HAD BEEN WORKING FOR PRESIDENT ROOSEVELT AND THEN HE DISSENTS IN THE KORAMATSU CASE, STANDS UP AND SAYS — LETTING RACISM LIKE THIS IS LIKE LETTING A LOADED WEAPON LIE AROUND. DISSENTS AGAINST PRESIDENT ROOSEVELT’S DECISION. [ CROWD PROTESTING ]>>JUSTICE JACKSON — [ CROWD PROTESTING ]>>JUSTICE JACKSON’S CONCURRENCE IN YOUNGSTOWN, WHICH IS OF COURSE WHAT HAS BECOME THE LAW, THE THREE-PART TEST, CATEGORY 1, CATEGORY 2, CATEGORY 3. HE WRITES THAT CONCURRENCE IN YOUNGSTOWN WIRKS IS THAT A MOMENT OF JUDICIAL INDEPENDENCE, HE HAD TAKEN POSITIONS CONTRARY TO THAT ONE. HE HAD WORKED IN THE EXECUTIVE BRANCH IN THE ROOSEVELT ADMINISTRATION. YET WHEN HE’S A JUDGE, HE SEE IT IS DIFFERENTLY AS AN INDEPENDENT JUDGE. HOW ABOUT CHIEF JUSTICE BERGER, UNITED STATES VERSUS NIXON. WRITES THE OPINION, UNANIMOUS, MOMENTS OF JUDICIAL INDEPENDENCE. IT’S RESISTING PUBLIC PRESSURE. POLITICAL PRESSURE, IT’S TREATING EVERYONE EQUALLY, NO MATTER WHERE YOU ARE, WHAT STATION. WHEN I WAS A, BECAME A JUDGE ON THE D.C. CIRCUIT, I HAD A CASE CALLED HONDON VERSUS UNITED STATES. WHO IS HONDON? [ PROTESTERS YELLING ] THE RIGHT OF ALL PERSONS TO LIVE IN THE COUNTRY. IF YOU ARE A MAN OF INTEGRITY, YOU YOURSELF SHOULD REMOVE YOURSELF. [ PROTESTERS ] [ PROTESTERS ]>>IN THE HONDON CASE, HONDON IS ONE OF BIN LADEN’S ASSOCIATES, YOU’LL NEVER HAVE A NOMINEE — >>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. LISTENING, THAT THIS IS YOUR OPPORTUNITY TO SPEAK TO THE AMERICAN PEOPLE. AND FOR THEM TO MAKE A JUDGE ABOUT IT. IF THEY WANT TO AFFECT WHAT THE OTHER 300 MILLION PEOPLE HEAR FROM YOU, THEN THAT’S JUST TOO BAD. YOU PROCEED NOW.>>HONDON IS ONE OF BIN LADEN’S ASSOCIATES INVOLVED BEFORE SEPTEMBER 11th. WORST ATTACK EVER ON AMERICAN SOIL. HE’S PROSECUTED BEFORE A MILITARY COMMISSION. SIGNATURE PROSECUTION OF THE BUSH ADMINISTRATION. COMES TO THE D.C. CIRCUIT. I’M ON THE PANEL. I WRITE THE OPINION. SAYING THAT HIS MILITARY COMMISSION PROSECUTION IS UNCONSTITUTIONAL. VIOLATES EX POST FACTO PRINCIPLES. YOU’LL NEVER HAVE A NOMINEE WHO HAS RULED FOR A MORE UNPOPULAR DEFENDANT THAN RULING FOR SALIM HONDON. WHY DID I RULE FOR SOMEONE WHO HAD BEEN INVOLVED IN THE SEPTEMBER 11th? BECAUSE THE LAW COMPELLED IT, AS JUSTICE KENNEDY SHOWED US IN THE TEXAS VERSUS JOHNSON CASE. WE DON’T MAKE DECISIONS BASED ON WHO PEOPLE ARE OR THEIR POLICY PREFERENCES OR THE MOMENTS. WE BASE DECISIONS ON THE LAW. JUSTICE KENNEDY’S EXAMPLE OF INDEPENDENCE IS SOMETHING I’VE TRIED TO FOLLOW. AND IT IT MEANS, YOU’RE NOT A PRO AS I SAID YESTERDAY, I’M NOT A PRO-PLAINTIFF OR A PRO-DEFENSE JUDGE, NOT A PRO-PROSECUTION OR A PRO-DEFENSE JUDGE. I’M A PRO-LAW JUDGE. AND I’VE RULED FOR PARTIES BASED ON WHETHER THEY HAVE THE LAW ON THEIR SIDE. THAT’S PART OF THE, OF BEING AN INDEPENDENT JUDGE. IS RULING FOR THE PARTY NEW YORK CITY MATTER WHO THEY ARE, SO LONG AS THE PARTY IS RIGHT. IF YOU WALK INTO MY COURTROOM, AND YOU HAVE THE BETTER LEGAL ARGUMENTS, YOU WILL WIN.>>I THINK YOU ANSWERED MY NEXT QUESTION BASED UPON WHAT YOU SAID ABOUT HANDON. BUT THERE’S PROBABLY OTHER EXAMPLES YOU DON’T NEED TO GO INTO DETAIL. BUT YOU HAVE — [ PROTESTERS YELLING ]>>PRESIDENT BUSH APPOINTED YOU, ARE THERE OTHER CASES, THERE’S BEEN OTHER CASES PRESUMABLY YOU RULED AGAINST ADMINISTRATION OF THE PERSON THAT APPOINTED YOU.>>ABSOLUTELY, MR. CHAIRMAN THERE WAS A SLEW OF CASES ON EVERYTHING FROM FREEDOM OF INFORMATION ACT TO SOME OF THE ADMINISTRATIVE LAW CASES, THE HAMDON CASE IS THE ONE THAT COMES TO MIND THE MOST. BECAUSE OF THE IMPORTANCE OF THAT CASE, YET I RULED IT WAS UNLAWFUL. >>DID ANYONE ASK YOU TO MAKE ANY PROMISES OR ASSURANCES AT ALL ABOUT THE WAY THAT YOU WOULD RULE IN CERTAIN CASES?>>NO.>>WERE YOU ASKED ABOUT YOUR VIEWS ON ROE V. WADE?>>NO.>>. [ PROTESTERS YELLING ]>>WE ARE TALKING ABOUT SEPARATION OF POWERS. HAVE YOU EVER WRITTEN ANY DECISIONS WHERE YOU, YOU USED THE 10th AMENDMENT? I’M TALKING ABOUT DIVISION OF POWERS BETWEEN FEDERAL AND STATES?>>MR. CHAIRMAN, MOST OF THE CASES THAT COME TO THE D.C. CIRCUIT ARE AT THE NATIONAL LEVEL. AND THEREFORE INVOLVING QUESTIONS OF SEPARATION OF POWERS BETWEEN THE LEGISLATIVE, EXECUTIVE AND JUDICIAL BARRAGES. OF COURSE FEDERALISM IS A CRITICAL PART OF OUR CONSTITUTIONAL STRUCTURE AS WELL. THE GENIUS OF OUR SYSTEM, FEDERALIST 39 IS DESCRIBED BY MADISON, IS THAT WE HAVE BOTH A NATIONAL GOVERNMENT AND A FEDERAL GOVERNMENT SIMULTANEOUSLY. AND THE HOUSE OF REPRESENTATIVES REALLY REPRESENTS THE, IN SOME WAYS THE NATIONAL PART, PROPORTIONAL REPRESENTATION. THIS BODY WITH TWO SENATORS FROM EACH STATE REPRESENTS IN MANY WAYS THE FEDERAL PARTY. EACH STATE REPRESENTED EQUALLY. AND THE FEDERALISM SYSTEM BIRKS WHICH THE STATES ARE ALLOWED TO REGULATE LOCAL MATTERS. IN SOME OF THE COMMERCE CLAUSE CASES SUCH AS UNITED STATES VERSUS LOPEZ AND UNITED STATES VERSUS MORRISON. REINFORCE THE IDEA THAT THERE’S A CORE OF AUTHORITY THAT IS EXCLUSIVELY IN THE PROVINCE OF THE STATES AND BEYOND THE SCOPE OF THE FEDERAL GOVERNMENT. THE 10th AMENDMENT [ PROTESTERS YELLING ]>>THE 10th AMENDMENT REINFORCES THE STRUCTURE OF FEDERALISM THAT’S IN OUR CONSTITUTIONAL SYSTEM. IT’S IMPORTANT TO REMEMBER THE ROLE OF OUR STATES IN OUR CONSTITUTIONAL SYSTEMS AND IT’S IMPORTANT TO RECOGNIZE AS INDIVIDUAL CITIZENS, SOMETHING WE OFTEN FORGET, PARTICULARLY IN A PROCESS LIKE THIS. OUR RIGHTS AND LIBERTIES ARE PROTECTED BY THE FEDERAL CONSTITUTION. AND BY THE FEDERAL COURTS. BUT THEY’RE ALSO PROTECTED BY STATE CONSTITUTIONS AND STATE COURTS. A GREAT JUDGE ON THE 6th CIRCUIT, JUDGE JEFF SUTTON HAS WRITTEN A NEW BOOK ABOUT USING STATE CONSTITUTIONS TO HELP PROTECT YOUR INDIVIDUAL LIBERTIES AND RIGHTS, TOO. THIS WHOLE DOCUMENT THROUGH THE SEPARATION OF POWERS AND THE FEDERALISM TILTS TOWARD LIBERTY. TILTS TOWARD LIBERTY.>>NOW WE’VE TALKED ABOUT YOUR INDEPENDENCE FROM A PRESIDENT, THERE’S ALSO THE QUESTION OF INDEPENDENCE FROM THE LEGISLATIVE BRANCH. EQUALLY AS IMPORTANT. YOU’RE GOING TO BE ASKED ABOUT YOUR PERSONAL VIEWS ON A VARIETY OF TOPICS AND WHETHER YOU BELIEVE VARIOUS SUPREME COURT CASES WERE CORRECTLY DECIDED. PRESUMABLY THIS IS BECAUSE SENATORS ARE GOING TO TRY TO PREDICT HOW YOU’LL RULE IN CASES BEFORE YOU. THE IDEA IS THAT IF YOU AGREE WITH YOUR PERSONAL VIEWS ON, IF THEY AGREE WITH YOUR PERSONAL VIEWS ON PARTICULAR ISSUES OF MORALITY OR ON SUPREME COURT PRECEDENT, THEY MAYBE WOULD VOTE TO CONFIRM YOU. IF NOT, THEY MIGHT NOT. THAT’S IMPROPER. JUDGES SHOULD NEVER PROMISE THEIR FUTURE VOTES ON THE BENCH IN EXCHANGE FOR A SENATOR’S VOTE FOR THEM. IF YOU ANSWER THESE QUESTIONS ABOUT YOUR VIEWS ON SPECIFIC SUPREME COURT CASES OR PUBLIC CONTROVERSIES OF THE DAY, YOU’D BE SHOWN THE OPPOSITE OF INDEPENDENCE FROM THE LEGISLATIVE BRANCH, POLITICIANS CAN MAKE PROMISES ABOUT HOW THEY’LL VOTE ON ISSUES, JUDGES, BY THEIR VERY NATURE OF THE JOB, SHOULD NEVER PROMISE ANY OUTCOME. IF A NOMINEE’S ANSWERS THESE QUESTIONS, IT THREATENS THE UNDERMINED JUDICIAL INDEPENDENCE. THERE MAY BE TIMES WHERE IT’S APPROPRIATE TO CONSIDER CERTAIN DECISIONS, ESPECIALLY IF MORE RECENT OPINIONS HAVE CALLED INTO QUESTION THE RATIONALE OF THE ORIGINAL DECISIONS. SO WITH THIS IN MIND, I’D LIKE TO EXPLORE THE APPROACH THAT YOU’D TAKE TOWARDS SUPREME COURT PRECEDENT. COULD YOU TELL US YOUR VIEWS ON THE VALUE OF PRECEDENT? I THINK YOU’VE ALREADY DONE THAT. BUT IF YOU WANT TO EXPAND ON IT, GO AHEAD. HAVE YOU EVER FOLLOWED PRECEDENT OF THE SUPREME COURT WHEN DOING SO CONFLICTED WITH YOUR PERSONAL BELIEFS?>>WELL MY PERSONAL BELIEFS ARE NOT RELEVANT TO HOW I DECIDE CASES. THE ROLE OF PRECEDENT IN OUR SYSTEM, WHICH I SAID IS ROOTED IN ARTICLE 3, THE CONSTITUTION, IT’S NOT JUST A JUDICIAL POLICY. THE ROLE OF PRECEDENT IS TO INSURE STABILITY IN THE LAW. WHICH IS CRITICALLY IMPORTANT. IT’S ALSO TO INSURE PREDICTABILITY OF THE LAW. PEOPLE WHO ORDER THEIR AFFAIRS AROUND JUDICIAL DECISIONS, NEED TO KNOW THAT THE LAW IS PREDICTABLE. WHETHER YOU’RE AN INDIVIDUAL OR BUSINESS OR WORKER. YOU NEED TO HAVE PREDICTABILITY. PEOPLE RELY ON THE DECISIONS OF THE COURTS. SO RELIANCE INTERESTS ARE CRITICALLY IMPORTANT TO CONSIDER. AS A MATTER OF PRECEDENT. THEY ARE ONE OF THE REASONS WE HAVE THE SYSTEM OF PRECEDENT SO THAT PEOPLE CAN RELY ON THE DECISIONS. PRECEDENT ALSO REINFORCES THE IMPARTIALITY AND INDEPENDENCE OF THE JUDICIARY. THE PEOPLE NEED TO KNOW IN THIS COUNTRY THAT THE JUDGES ARE INDEPENDENT. AND NOW WE’RE NOT MAKING DECISIONS BASED ON POLICY VIEWS. PART OF THAT IS TO UNDERSTAND WE’RE FOLLOWING A SYSTEM OF PRECEDENT. OF WHAT HAS BEEN DONE BEFORE. THE COURT, EVERY TIME SOMEONE GETS ON, IT’S NOT JUST BOUNCING AROUND TO WHAT DO I THINK IS BEST. IT’S WHAT’S THE PRECEDENT OF THE SUPREME COURT IS ALWAYS PART OF THE ANALYSIS, AN IMPORTANT PART. FOR 12 YEARS, I’VE BEEN APPLYING PRECEDENT OF THE SUPREME COURT AND OF MY COURT. EVERY DAY FOR 12 YEARS I HAVEN’T BEEN GETTING UP SAYING, HOW CAN I REWRITE THE LAW? I’VE BEEN GETTING UP FOR 12 YEARS EVERY DAY, SAYING OKAY HOW CAN I APPLY THIS FOURTH AMENDMENT PRECEDENT TO THIS FACT PATTERN THAT COMES BEFORE ME? SO PRECEDENT IS THE, FOUNDATION OF OUR SYSTEM. IT’S PART OF THE STABILITY. IT’S INSURING PREDICTABILITY. AND IT’S JUST FOUNDATIONAL TO THE CONSTITUTION, IS ARTICLE 3 AND FEDERALIST 78 MADE CLEAR.>>NOW YOU’LL BE ASKED BY OTHER MEMBERS, WHICH SUPREME COURT PRECEDENT YOU LIKE AND DON’T LIKE. BUT AS YOU KNOW, IT’S INAPPROPRIATE FOR A NOMINEE TO ANSWER THOSE QUESTIONS. AND THIS REFERS TO JUSTICE GINSBERG. SHE SAID QUOTE, A JUDGE SWORN TO DECIDE IMPARTIALITY CAN OFFER NO FORECAST, NO HINTS FOR THAT WOULD SHOW NOT ONLY DISREGARD FOR THE SPECIFICS OF A PARTICULAR CASE, IT WOULD DISPLAY DISDAIN TO THE ENTIRE JUDICIAL PROCESS. END OF QUOTE. THE UNDERLYING REASON FOR THIS OF COURSE IS THAT MAKING PROMISES OF GIVING HINTS UNDERMINES THE VERY INDEPENDENCE THAT WE’VE DISCUSSED. WOULD YOU AGREE WITH THAT?>>I DO, SENATOR. MR. CHAIRMAN, AND ONE OF THE THINGS THAT I HAVE TO REMEMBER, SITTING IN THIS SEAT, IS THAT THIS MOMENT IS A MOMENT OF JUDICIAL INDEPENDENCE. WITH HOW I INTERACT WITH THIS COMMITTEE. AND WHAT I’VE DONE, IN EACH OF THE JOBS I’VE HAD IN PARTICULARLY AS A JUDGE OVER THE LAST 12 YEARS, BUT ALSO IN THE EXECUTIVE BRANCH, YOU ALWAYS ASK, I ALWAYS ASK MYSELF, AND I TELL PEOPLE I’M WORKING WITH ASK, HOW HAS IT BEEN DONE BEFORE? HOW HAS IT BEEN DONE BEFORE? SO AS A JUDGE, HOW HAS IT BEEN DONE BEFORE IS PRECEDENT. THAT’S HOW’S IT BEEN DONE BEFORE? WHEN I’M SEAT SITTING HERE, WHAT DID I DO? I STUDIED THE NOMINEE PRECEDENT. I READ JUSTICE THURGOOD MARSHALL’S HEARING AND IT’S WHAT I CALL NOMINEE PRECEDENT. SO ALL THE NOMINEES CURRENTLY SITTING ON THE SUPREME COURT, ALL THE JUSTICES, HAVE MADE CLEAR A COUPLE THINGS. FIRST OF ALL, THEY CAN’T DISCUSS CASES OR ISSUES THAT MIGHT COME BEFORE THEM. AS JUSTICE GINSBERG SAID, NO HINTS, NO FORECASTS, NO PREVIEWS. THAT ALSO MEANS WITH RESPECT TO AT LEAST THE VAST BODY OF SUPREME COURT PRECEDENT GOING BACK, YOU CAN’T GIVE A THUMB’S UP OR THUMB’S DOWN ON THE CASE. THAT’S JUSTICE KAGAN’S FORMULATION. SHE SAID REPEATEDLY, NO THUMBS UP OR THUMBS DOWN WHEN SHE WAS ASKED WHAT DO YOU THINK ABOUT THIS CASE, WHAT DO YOU THINK ABOUT THAT CASE? I LIKED HER FORMULATION THERE. NO THUMBS UP OR THUMBS DOWN. THAT NOMINEE PRECEDENT AS I CALL IT, IS NOW IN MY VIEW, PART OF THE INDEPENDENCE OF THE JUDICIARY. AND THAT NOMINEE PRECEDENT IS SOMETHING I NEED TO ADHERE TO, WHEN I AM HERE AS A NOMINEE NOW. BECAUSE THAT’S ONE OF MY JOBS HERE IS NOT TO ADVANCE MY OWN INTERESTS, BUT REMEMBER, I’M A REPRESENTATIVE OF THE JUDICIARY AS A WHOLE AND I HAVE A RESPONSIBILITY TO JUDICIAL INDEPENDENCE, RIGHT HERE, RIGHT NOW AS A NOMINEE. SO FOLLOWING THAT NOMINEE PRECEDENT IS GOING TO BE CRITICAL. NOW THERE’S AN EXCEPTION THAT THE EIGHT JUSTICES HAVE DRAWN CURRENTLY SITTING ON THE COURT. IF YOU READ ALL THE HEARINGS FOR SOME OLDER CASES. AND I’LL BE HAPPY TO, SOME OLDER CASES, THAT WHERE NOMINEE PRECEDENT DOES ALLOW THE JUSTICES, HAS ALLOWED THEM TO TALK ABOUT A FEW OLDER CASES. AGAIN, WHY DO WE DO THIS? WHY IS THIS NOMINEE PRECEDENT THERE? WHEN EIGHT JUSTICES OF WIDELY RANGING VIEWS DO THIS? THERE MUST BE A REASON. THE REASON IS JUDICIAL INDEPENDENCE. WHAT DOES THAT MEAN? IT MEANS TWO THINGS IN THIS CONTEXT. ONE, THE LITIGANTS WHO COME BEFORE US HAVE TO KNOW WE HAVE AN OPEN MIND THAT WE DON’T HAVE A CLOSED MIND THAT WE HAVEN’T COMMITTED SOMETHING IN THIS PROCESS THAT IS GOING TO AFFECT HOW WE DECIDE A CASE. BECAUSE WE FEEL BOUND BY WHAT WE PROMISE TO THIS COMMITTEE. AND BELIEVE ME, JUDGES DO FEEL BOUND BY WHAT THEY SAID TO THIS COMMITTEE. SO IF I SAY SOMETHING AND THE CASE COMES BEFORE ME FIVE YEARS FROM NOW, I’M GOING TO FEEL MORALLY BOUND BY WHAT I SAID HERE. AND IF I’VE CROSSED THE LINE OF WHAT I SHOULD SAY, THEN I’M NOT GOING TO HAVE AN OPEN MIND IN THAT CASE. THAT’S A VIOLATION OF JUDICIAL INDEPENDENCE. SECONDLY, AS CHIEF JUSTICE ROBERTS DESCRIBED PERHAPS BETTER THAN ANYBODY, IF I GET INTO SOME KIND OF PROCESS THAT APPEARS TO BE A BARGAINING PROCESS WHERE I SAY — WELL, I’LL AGREE WITH THIS DECISION, IN EXCHANGE FOR YOUR VOTE, IT’S NEVER THAT EXPLICIT, BUT THAT’S AS CHIEF JUSTICE ROBERTS DESCRIBED IT, THAT’S KIND OF THE, WHAT SEEMS TO BE GOING ON SOMETIMES. WELL THAT’S A COMPLETE VIOLATION OF JUDICIAL INDEPENDENCE. BECAUSE THEN THE JUDGES AREN’T MAKING THE DECISIONS BASED ON THEIR READING OF THE LAW. IT’S REALLY, AS CHIEF JUSTICE ROBERTS DESCRIBED IT, IT’S THE SENATE OR THE SENATE JUDICIARY COMMITTEE SENDING A NOMINEE AS A DELEGATE TO THE JUDISH ARE I AND REALLY DOING WHAT THE SENATE JUDICIARY COMMITTEE THINKS IS THE RIGHT THING TO DO. CHIEF JUSTICE ROBERTS EXPLAINED VERY FORCEFULLY THAT DOING THAT WOULD BE A VIOLATION OF JUDICIAL INDEPENDENCE THAT NOMINEE PRECEDENT WEIGHS HEAVILY ON ME. AS A NOMINEE HERE. BECAUSE IT’S ROOTED IN JUDICIAL INDEPENDENCE. AND I’VE SAID REPEATEDLY ALREADY, THAT I’M GOING TO BE AN INDEPENDENT JUDGE. I HAVE TO BE AN INDEPENDENT NOMINEE AS WELL. SO I’M GOING TO HAVE TO ADHERE TO THE LINES DRAWN BY THOSE PRIOR NOMINEES, MR. CHAIRMAN.>>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.>>THANK YOU. >>I’M SORRY ABOUT THE CIRCUMSTANCES, BUT WE’LL GET THROUGH IT. I WANTED TO TALK TO YOU THIS MORNING ABOUT GUNS AND GO BACK TO ROE V. WADE, IF I MIGHT.>>MY OFFICE WROTE THE ASSAULT WEAPONS LEGISLATION IN 1993. IT WAS LAW FROM ’94 TO 2004. AND ESSENTIALLY PROHIBITED THE TRANSFER, SALE AND MANUFACTURE OF ASSAULT WEAPONS. IT DID NOT AT THE TIME AFFECT POSSESSION. I HAPPEN TO BELIEVE THAT IT DID WORK. AND THAT IT WAS IMPORTANT. AND I’VE WATCHED CASE AFTER CASE AND I THINK I MENTIONED EARLIER, SCHOOL SHOOTINGS, WHICH ARE JUST, I NEVER THOUGHT THIS WOULD HAPPEN THAT SOMEONE WOULD BRING A SEMIAUTOMATIC ASSAULT WEAPON INTO A SCHOOL AND JUST MOW DOWN CHILDREN AND STAFF. AND SO I’VE BEEN VERY INTERESTED IN YOUR THINKING ON ASSAULT WEAPONS. YOU SPECIFICALLY ARGUED THAT THE D.C. ASSAULT WEAPONS BAN WAS UNCONSTITUTIONAL. AND I THINK BECAUSE YOU SAID THESE WEAPONS WERE IN COMMON USE. WHAT DID YOU BASE YOUR CONCLUSION THAT ASSAULT WEAPONS ARE IN COMMON USE. AND WHAT EVIDENCE OR STUDY DID YOU USE TO DO THAT?>>THANK YOU, SENATOR FEINSTEIN FOR THE QUESTION. AND I UNDERSTAND OF COURSE YOUR ROLE ON THAT ISSUE. AND YOUR LONG LEADERSHIP ON THAT ISSUE. APPRECIATE THAT. I FACED A DECISION WHERE AS IN EVERY OTHER DECISION JUST WITH ON THE D.C. CIRCUIT, I HAD TO FOLLOW PRECEDENT. PRECEDENT OF THE SUPREME COURT. I DON’T GET TO PICK AND CHOSE WHICH SUPREME COURT PRECEDENTS I GET TO FOLLOW. I FOLLOW THEM ALL. SO IN THE SECOND AMENDMENT CONTEXT, THE SUPREME COURT IN THE HELLER DECISION, WRITTEN BY JUSTICE SCALIA, HAD HELD THAT THERE WAS AN INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS. AND THEN IN EXPLAINING WHAT THAT MEANT, AND WHAT EXCEPTIONS WOULD BE ALLOWED TO THAT RIGHT, JUSTICE SCALIA’S OPINION FOR THE COURT IN PART 3 OF THE OPINION, WENT THROUGH THIS DOES NOT MEAN THAT THERE’S NO GUN REGULATION PERMISSIBLE. SO THAT WAS AN IMPORTANT PART OF THE OPINION. PART 3 OF THE SUPREME COURT’S OPINION. WHERE IT PREIDENTIFIED A NUMBER OF EXCEPTIONS THAT WOULD BE ALLOWED. FELON IN POSSESSION LAWS, CONCEALED CARRY, LAWS, POSSESSION, MENTALLY ILL, POSSESSION OF GUNS IN SCHOOLS. POSSESSION IN CERTAIN KINDS OF BUILDINGS. HE PREIDENTIFIED THAT. AS TO THE WEAPONS, THE WAY I UNDERSTOOD WHAT HE SAID THERE AND WHAT WAS SAID IN THE McDONALD CASE LATER, WAS THIS DANGEROUS AND UNUNUSUAL WEAPONS COULD BE PROHIBITED. AND WHAT HE REFERRED TO SPECIFICALLY IS MACHINE GUNS COULD BE PROHIBITED. SO IT’S VERY IMPORTANT TO RECOGNIZE UNDER THE HELLER DECISION, MACHINE GUNS CAN BE PROHIBITED. >>THEY WERE IN THE FIREARMS ACT A LONG TIME AGO.>>AND HAD BEEN PROHIBITED.>>YES, SENATOR. JUSTICE SCALIA’S OPINION DID NOT DISTURB THAT LONGSTANDING REGULATION. IN FACT SPECIFICALLY REAFFIRMED THAT MACHINE GUNS COULD BE PROHIBITED. THE COURT IN HELLER, THE SUPREME COURT UPHELD OR STRUCK DOWN A D.C. BAN ON HANDGUNS. MOST OF WHICH ARE SEMIAUTOMATIC.>>LET ME INTERRUPT YOU, I THINK WE’RE ON TOTALLY DIFFERENT WAVELENGTHS. I’M TALKING ABOUT YOUR STATEMENT ON COMMON USE. AS COMMON USE BEING THE JUSTIFICATION. AND ASSAULT WEAPONS ARE NOT IN COMMON USE.>>AND JUSTICE SCALIA’S OPINION USED THAT PHRASE. AND I THINK THE NEXT SENTENCE OF THE OPINION TALKED ABOUT DANGEROUS AND UNUSUAL WEAPONS. AND THE COURT IN HELLER ITSELF, THE SUPREME COURT, STRUCK DOWN A D.C. BAN ON HANDGUNS. NOW MOST HANDGUNS ARE SEMIAUTOMATIC. THAT’S SOMETHING THAT NOT EVERYONE APPRECIATES. MOST HANDGUNS ARE SEMIAUTOMATIC. THE QUESTION CAME BEFORE US OF SEMIAUTOMATIC RIFLES, AND THE QUESTION WAS, CAN YOU DISTINGUISH AS A MATTER OF PRECEDENT — THIS IS A YOU WILL ABOUT PRECEDENT FOR ME. TRYING TO READ EXACTLY WHAT THE SUPREME COURT SAID. AND IF YOU READ THE McDONALD 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. SO THAT SEEMED TO FIT COMMON USE AND NOT BEING AN, A DANGEROUS AND UNUSUAL WEAPON. THAT WAS THE BASIS OF MY DISSENT. IN A NUTSHELL, THE BASIS OF MY DISSENT WAS I WAS TRYING TO FOLLOW STRICTLY AND CAREFULLY THE SUPREME COURT PRECEDENT. I KNOW YOU’VE READ THE OPINION. >>YOU’RE SAYING THE NUMBERS DETERMINE COMMON USE? COMMON USE IS AN ACTIVITY. IT’S NOT COMMON STORAGE OR POSSESSION. IT’S USE. SO WHAT YOU SAID WAS THAT THESE WEAPONS WERE COMMONLY USED. THEY’RE NOT.>>THEY’RE WIDELY POSSESSED IN THE UNITED STATES, SENATOR. AND THEY ARE, THEY ARE USED AND POSSESSED, BUT THE QUESTION IS ARE THEY A DANGEROUS AND UNUSUAL. AND CERTAINLY DANGEROUS, ALL WEAPONS ARE DANGEROUS. ARE THEY UNUSUAL? AND GIVEN HOW PREVALENT THEY ARE IN THE UNITED STATES, IT SEEMED UNDER JUSTICE SCALIA’S TEST IF YOU LOOK AT THE MAJORITY OPINION IN McDONALD, THE SUPREME COURT MADE CLEAR THAT MACHINE GUNS CAN BE BANNED.>>LET ME SPEAK TO YOU, I’M TALKING TO YOU ABOUT THE HELLER CASE, LET ME BE SPECIFIC. AND YOU SPECIFICALLY ARGUED, THAT WAS UNCONSTITUTIONAL TO DEFEND ASSAULT WEAPONS BECAUSE THEY ARE TO BAN ASSAULT WEAPONS BECAUSE THEY ARE IN COMMON USE. AND THAT WAS YOUR DISSENT IN THE CASE.>>I WAS REFERRING TO SOME SEMI, SOME KINDS OF SEMIAUTOMATIC RIFLES THAT ARE BANNED BY D.C. ARE IN WIDE, WIDELY OWNED IN THE UNITED STATES. AND THAT SEEMED TO BE THE TEST THAT THE SUPREME COURT HAD SET FORTH IN THE HELLER AND McDONALD CASE. THAT IS, IF A TYPE OF FIREARM IS WIDELY USED IN THE UNITED STATES. WHETHER OR NOT I AGREE WITH THE TEST, WAS NOT THE ISSUE. I HAVE TO FOLLOW THE PRECEDENT OF THE SUPREME COURT AS WRITTEN. THAT’S WHAT I TRIED TO DO IN THAT CASE. IT’S A VERY LONG OPINION. I ALSO MADE CLEAR, SENATOR FEINSTEIN, AT THE END OF THE OPINION, I’M A NATIVE OF THIS AREA, I’M A NATIVE OF AN URBAN/SUBURBAN AREA. CY GREW UP IN A CITY PLAGUED BY GUN VIOLENCE AND GANG VIOLENCE AND DRUG VIOLENCE. I FULLY UNDERSTAND AS I EXPLAINED IN THE OPINION, THE IMPORTANCE OF THIS ISSUE, I SPECIFICALLY REFERENCED THAT POLICE CHIEF KATHY LANIER’S GOALS OF REDUCING POLICE AND GANG VIOLENCE WAS SOMETHING I APPLAUDED. BUT I HAD TO FOLLOW PRECEDENT OF THE SUPREME COURT IN THAT CASE. AS I READ IT, THAT’S WHAT IT SAID.>>HOW DO YOU RECOGNIZE WHAT YOU’VE JUST SAID WITH THE HUNDREDS OF SCHOOL SHOOTINGS USING ASSAULT WEAPONS THAT HAVE TAKEN PLACE IN RECENT HISTORY? HOW DO YOU RECONCILE THAT?>>SENATOR OF COURSE THE VIOLENCE IN THE SCHOOLS IS SOMETHING WE ALL DETEST AND WANT TO DO SOMETHING ABOUT. AND THERE ARE LOTS OF EFFORTS, I KNOW UNDER WAY TO MAKE SCHOOLS SAFER. I KNOW IN MY GIRLS’ SCHOOL THEY DO A LOT OF THINGS NOW THAT ARE DIFFERENT THAN THEY DID JUST A FEW YEARS AGO IN TERMS OF TRYING TO HARDEN THE SCHOOL AND MAKE IT SAFER FOR EVERYONE. GUNS, HANDGUNS AND EMI AUTOMATIC RIFLES ARE WEAPONS USED FOR HUNTING AND SELF-DEFENSE. BUT AS YOU SAY, SENATOR, YOU RIGHTLY SAY, THEY’RE USED IN A LOT OF VIOLENT CRIME AND CAUSE A LOT OF DEATHS, HANDGUNS ARE USED IN LOTS OF CRIMES THAT RESULT IN DEATH. AND SO ARE SEMIAUTOMATIC RIFLES. THAT’S WHAT MAKES THIS ISSUE DIFFICULT. AS I SAID IN THE LAST TWO PAGES OF MY DISSENT IN HELLER, I FULLY UNDERSTAND THE GANG VIOLENCE, GUN VIOLENCE, DRUG VIOLENCE THAT HAS PLAGUED VARIOUS CITIES, INCLUDING WASHINGTON. THIS WAS KNOWN AS THE MURDER CAPITAL OF THE WORLD FOR A WHILE, THIS CITY. AND THAT WAS A LOT OF HANDGUN VIOLENCE AT THE TIME. SO I, I UNDERSTAND THE ISSUE. BUT AS A JUDGE, MY JOB AS I SAW IT WAS TO FOLLOW THE SECOND AMENDMENT OPINION OF THE SUPREME COURT. WHETHER I AGREE WITH IT OR DISAGREE WITH IT AT THE END OF THE OPINION I CITED JUSTICE KENNEDY’S TEXAS VERSUS JOHNSON QUOTE. WHICH I READ YESTERDAY AS THE GUIDING LIGHT FOR THE LOWER COURT JUDGES AND ALL JUDGES.>>LET ME GIVE YOU A COUPLE OF OTHER QUOTES BECAUSE I’M GOING CHANGE THE SUBJECT. 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, END QUOTE?>>WELL AS A GENERAL PROPOSITION, I UNDERSTAND THE IMPORTANCE OF THE PRECEDENT SET FORTH IN ROE V. WADE. SO ROE V. WADE HELD OF COURSE, AND REAFFIRMED IN PLANNED PARENTHOOD VERSUS CASEY, 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. AND ONE OF THE REASONS FOR THAT HOLDING, AS EXPLAINED BY THE COURT, IN ROE AND ALSO IN PLANNED PARENTHOOD VERSUS CASEY MORE FULLY, IS I LONG THE LINES OF WHAT YOU SAID, SENATOR FEINSTEIN, ABOUT THE QUOTE FROM JUSTICE O’CONNOR. SO THAT’S ONE OF THE RATIONALES THAT UNDERGIRDS ROE V. WADE, THAT’S ONE OF THE RATIONALES THAT UNDERGIRDS PLANNED PARROTHOOD VERSUS CASEY.>>LET ME GIVE YOU ANOTHER RATIONALE, IN THE 1950s AND ’60s, THE TWO DECADES BEFORE ROE, DEATHS FROM ILLEGAL ABORTIONS IN THIS COUNTRY RAN BETWEEN 200,000 AND 1.2 MILLION. THAT’S ACCORDING TO THE GUTTMACHER INSTITUTE. SO A LOT OF WOMEN DIED IN THAT PERIOD. SO THE QUESTION COMES — AS YOU HAVE SAID TODAY, NOT TODAY, BUT IN, IT’S BEEN REPORTED THAT YOU HAVE SAID THAT ROE IS NOW SETTLED LAW. THE FIRST QUESTION I HAVE OF YOU IS WHAT DO YOU MEAN BY “SETTLED LAW?” I TRIED TO ASK EARLIER, DO YOU BELIEVE IT IS CORRECT LAW? HAVE YOUR VIEWS ON WHETHER ROE IS SETTLED PRECEDENT? OR COULD YOU OVERTURNED? AND HAS YOUR VIEWS CHANGED SINCE WERE YOU IN THE BUSH WHITE HOUSE?>>SENATOR, I SAID THAT IT’S SETTLED AS A PRECEDENT OF THE SUPREME COURT ENTITLED THE RESPECT UNDER PRINCIPLES OF STARE DECISIS. ONE OF THE IMPORTANT THINGS TO KEEP IN MIND ABOUT ROE V. WADE IS THAT IT HAS BEEN REAFFIRMED MANY TIMES OVER THE PAST 45 YEARS. AS YOU KNOW, AND MOST PROMINENTLY, MOST IMPORTANTLY, REAFFIRMED IN PLANNED PARENTHOOD VERSUS CASEY IN 1992. AS YOU WELL RECALL, SENATOR, WHEN THAT CASE CAME YOU UP, THE SUPREME COURT DIDN’T JUST REAFFIRM IT IN PASSING, THE COURT SPECIFICALLY WENT THROUGH ALL THE FACTORS OF STARE DECISIS IN CONSIDERING WHETHER TO OVERRULE IT AND IN A JOINT OPINION OF JUSTICE KENNEDY, JUSTICE O’CONNOR AND JUSTICE SOUTER, AT GREAT LENGTH WENT THROUGH THOSE FACTORS. THAT WAS THE QUESTION PRESENTED IN THE CASE.>>COULD I INTERRUPT YOU TO SAY SINCE YOU MENTIONED STARE DECISIS? I SAT ON NINE OF THESE HEARINGS. AND WHEN THE SUBJECT COMES UP, THE PERSON SAYS I WILL FOLLOW STARE DECISIS AND THEY GET CONFIRMED AND THEN OF COURSE, THEY DON’T. SO I THINK KNOWING GOING INTO IT, HOW YOU MAKE A JUDGMENT ON THESE ISSUES IS REALLY IMPORTANT TO OUR VOTE AS TO WHETHER TO SUPPORT YOU OR NOT. BECAUSE I DON’T WANT TO GO BACK TO THOSE DEATH TOLLS IN THIS COUNTRY. AND 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. AND I UNDERSTAND HOW PASSIONATE AND HOW DEEPLY PEOPLE FEEL ABOUT THIS ISSUE. I UNDERSTAND THE IMPORTANCE OF THE ISSUE. I UNDERSTAND THE IMPORTANCE THAT PEOPLE ATTACH TO THE ROE V. WADE DECISION. TO THE PLANNED PARENTHOOD VERSUS CASEY DECISION.>>I DON’T LIVE IN A BUBBLE. I UNDERSTAND, I LIVE IN THE REAL WORLD. I UNDERSTAND THE IMPORTANCE OF THE ISSUE.>>WELL MY STAFF JUST PASSED ME A NOTE. LET ME READ IT TO YOU BECAUSE I THINK IT’S A GOOD — HAVE YOUR VIEWS ABOUT WHETHER ROE IS SETTLED PRECEDENT CHANGED SINCE YOU WERE IN THE BUSH WHITE HOUSE? YES OR NO?>>I’LL TELL YOU WHAT MY VIEWS, I’M NOT SURE WHAT IT’S REFERRING TO ABOUT THE BUSH WHITE HOUSE. BUT I WILL TELL YOU WHAT MY VIEW RIGHT NOW IS. WHICH IS AN IMPORTANT PRECEDENT OF THE SUPREME COURT WHICH HAS BEEN REAFFIRMED MANY TIMES THIS IS THE POINT I WANT TO MAKE THAT I THINK IS IMPORTANT. PLANNED PARENTHOOD VERSUS CASEY REAFFIRMED ROE AND DID SO BY CONSIDERING THE STARE DECISIS FACTORS SO CASEY NOW BECOMES A PRECEDENT ON PRECEDENT. IT’S NOT AS IF IT’S JUST A RUN-OF-THE-MILL CASE THAT WAS DECIDED AND NEVER BEEN RECONSIDERED. BUT CASEY SPECIFICALLY RECONSIDERED IT. APPLIED THE STARE DECESIS FACTORS AND DECIDED TO REAFFIRM IT. THAT MAKES CASEY A PRECEDENT ON PRECEDENT. ANOTHER EXAMPLE OF THAT AS YOU MIGHT SAY OF OTHER CASES LIKE THAT, IS MIRANDA. SO MIRANDA IS REAFFIRMED A LOT. BUT THEN IN THE DICKERSON CASE IN 2000, CHIEF JUSTICE REHNQUIST WRITES THE OPINION CONSIDERING THE STARE DECISIS FACTORS, IN REAFFIRMING MIRANDA. EVEN THOUGH CHIEF JUSTICE REHNQUIST, BY THE WAY HAD BEEN A FERVENT CRITIC OF MIRANDA THROUGHOUT HIS CAREER. HE DECIDED THAT IT HAD BEEN SETTLED TOO LONG. HAD BEEN PRECEDENT TOO LONG AND HE REAFFIRMED IT.>>WHEN — >>I’M SORRY TO INTERRUPT.>>I’M SORRY TO INTERRUPT. I WANT IT SWITCH SUBJECTS, ONE LAST QUESTION. WHAT DO YOU SAY YOUR POSITION TODAY IS ON A WOMAN’S RIGHT TO CHOOSE?>>WELL AS A JUDGE — >>AS A JUDGE.>>AS A JUDGE, IT IS AN IMPORTANT PRECEDENT OF THE SUPREME COURT. BY IT, I MEAN ROE V. WADE AND PLANNED PARENTHOOD VERSUS CASEY. BEEN REAFFIRMED MANY TIMES. CASEY IS PRECEDENT ON PRECEDENT. WHICH ITSELF IS AN IMPORTANT FACTOR TO REMEMBER. AND I UNDERSTAND THE SIGNIFICANCE OF THE ISSUE. THE JURISPRUDENCE OF THE ISSUE. I ALWAYS TRY, I DO HERE, OF THE REAL-WORLD EFFECTS OF THAT DECISION AS I TRIED TO DO OF ALL THE DECISIONS OF MY COURT AND OF THE SUPREME COURT. >>WELL I THANK YOU FOR THAT. LET’S GO TO PRESIDENTIAL POWER FOR A MOMENT. YOU WERE PART OF KEN STARR’S INDEPENDENT COUNSEL TEAM. WHICH CONDUCTED A SWEEPING INVESTIGATION INTO POSSIBLE WRONGDOING BY PRESIDENT CLINTON AND THE FIRST LADY. AS THE TIME YOU ARGUED FOR AGGRESSIVE QUESTIONING OF THE PRESIDENT. YOU DID NOT TAKE THE POSITION THAT PRESIDENT CLINTON WAS IMMUNE FROM INVESTIGATION. SINCE THEN, YOU HAVE TAKEN THE OPPOSITE POSITION, IN FACT YOU’VE SAID THAT AND I QUOTE, 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 ABOUT THAT? AND WHAT ARE THE CIRCUMSTANCES WHERE A SITTING PRESIDENT COULD BE SUBJECT TO CRIMINAL INVESTIGATION?>>I APPRECIATE THE SIGN THERE. THE LAST SIGN I SHOULD HAVE MENTIONED WHILE I WAS UP, THE SECOND AMENDMENT SIGN ACTUALLY HAD BRACKETS AROUND PART OF MY QUOTE. I’M NOT SURE IT WAS THE EXACT QUOTE. I WANTED TO POINT THAT OUT. >>IS THIS ACCURATE?>>AS — HERE’S WHAT I WAS SAYING, LET ME EXPLAIN IT.>>THE LAST ONE MAY OR MAY NOT BE ACCURATE. WHAT HAPPENS AFTER THE STARR INVESTIGATION, THEN I WORKED FIVE AND A HALF YEARS IN THE WHITE HOUSE. SO LET ME JUST GIVE YOU IF I CAN, SOME CONTEXT HERE AND I’M GOING TO GET SPECIFICALLY TO YOUR QUESTION. SO I WORK IN THE INDEPENDENT COUNSEL INVESTIGATION AND THAT IS OBVIOUSLY DIFFICULT, CONTROVERSIAL, A MOMENT FOR OUR COUNTRY THAT I WISH HADN’T HAPPENED. WE ALL WISH IT HADN’T HAPPENED. AND I REFLECT ON THAT, I WROTE A GEORGETOWN UNIVERSITY LAW SCHOOL JOURNAL ARTICLE IN ‘ 9 REFLECTING SOME OF MY THOUGHTS ABOUT THAT THIS SEEMS TO BE A TENDENCY OF MINE, TO GO THROUGH AN EXPERIENCE, WRITE AN ARTICLE REFLECTING ON THAT. THEN I WORK IN THE BUSH WHITE HOUSE FOR FIVE AND A HALF YEARS. AND I WRITE AN ARTICLE IN THE MINNESOTA LAW REVIEW, SENATOR KLOBUCHAR, IN 2009. WHEN PRESIDENT OBAMA WAS IN OFFICE, I SHOULD POINT OUT. AND I REFLECTED, ON A NUMBER OF THINGS I HAD LEARNED WORKING IN THE INDEPENDENT COUNSEL OFFICE AND WORKING IN THE WHITE HOUSE. I THOUGHT THERE WERE A NUMBER OF THINGS COULD TAKE A LOOK AT, THAT I HAD EXPERIENCED. ONE OF THEM WAS I PROPOSED TIMELINES FOR CONSIDERATION OF JUDICIAL NOMINEES. I PROPOSED 180-DAY UP OR DOWN VOTE FOR EVERY JUDICIAL NOMINEE. THAT WAS SOMETHING FROM MY EXPERIENCE I THOUGHT WOULD AVOID CONTROVERSY AND HAVE RULES OF THE ROAD SET IN ADVANCE. AND I PRO POSED THAT SPECIFICALLY FOR CONGRESS TO CONSIDER. OTHER ASPECTS, I, I SAID — ANOTHER THING I PROPOSED WAS FOR CONGRESS TO CONSIDER WHETHER IT SHOULD LOOK AT CLINTON VERSUS JONES OR THE PRINCIPLE OF CLINTON VERSUS JONES. SO YOU CALL CLINTON VERSUS JONES AND SAY A PRESIDENT IS SUBJECT TO CIVIL SUIT WHILE IN OFFICE, THE PAULA JONES SUIT THAT WAS A CONTROVERSIAL DECISION. BUT THE SUPREME COURT MADE CLEAR AT THE END OF THE DECISION, CONGRESS COULD PROVIDE EXTRA DEFERRAL OF SUITS, NOT IMMUNITY. BUT DEFERRAL OF SUITS FOR PRESIDENTS IF CONGRESS SO WANTED. AND SO IN THE MINNESOTA LAW REVIEW ARTICLE, I PUT OUT SOME IDEAS ABOUT WHETHER CONGRESS MAY WANT TO THINK ABOUT THAT. AND WHY DID I DO THAT? I THINK SENATOR DURBIN ASKED YESTERDAY, WHAT CHANGED THAT MADE ME THINK ABOUT THAT. FROM THE TIME. WHAT CHANGED WAS SEPTEMBER 11th. THAT’S WHAT CHANGED. SO AFTER SEPTEMBER 11th, I THOUGHT VERY DEEPLY ABOUT THE PRESIDENCY. AND I THOUGHT VERY DEEPLY ABOUT THE INDEPENDENT COUNSEL EXPERIENCE, AND I THOUGHT VERY DEEPLY ABOUT HOW THOSE THINGS INTERACTED. AND I THOUGHT VERY DEEPLY ABOUT SEEING PRESIDENT BUSH. WHEN HE CAME INTO THE OVAL OFFICE ON SEPTEMBER 11th, 2001 IN THE MORNING. PRESIDENT BUSH SAID THIS WILL NOT HAPPEN AGAIN. THIS WILL NOT HAPPEN AGAIN. HE WAS OF SINGLE-MINDED FOCUS, EVERY MORNING FOR THE NEXT SEVEN YEARS, FOR PRESIDENT BUSH WAS STILL SEPTEMBER 12, 2001. SINGLE-MINDED FOCUS. THINKING BACK TO THE INDEPENDENT COUNSEL EXPERIENCE IN AUGUST OF 19 8. SO I PROPOSED SOME IDEAS FOR CONGRESS TO CONSIDER. HERE’S THE BOTTOM-LINE POINT THERE WERE IDEAS FOR CONGRESS TO KRRKS THEY WERE NOT MY CONSTITUTIONAL VIEWS. IF A CASE CAME UP WHERE SOMEONE WAS, SOMEONE WAS TRYING TO SAY THIS IS A CONSTITUTIONAL PRINCIPLE, I WOULD HAVE A COMPLETELY OPEN MIND ON THAT. BECAUSE I’VE NEVER TAKEN A POSITION ON THE CONSTITUTION. ON THAT QUESTION. I’VE ONLY PUT OUT PROPOSALS FOR YOU ALL TO STUDY, TO THINK ABOUT THE BALANCE OF A PRESIDENT FIGHTING A A WAR, LEADING A WAR AND A PRESIDENT SUBJECT TO SAY ORDINARY CIVIL LAWSUITS.>>YOU’RE BECOMING VERY GOOD, YOU’RE LEARNING TO FILIBUSTER. BUT LET ME ASK THIS QUESTION PRECISELY. THE SUPREME COURT HAS UNANIMOUSLY RULED THAT A PRESIDENT CAN BE REQUIRED TO TURN OVER INFORMATION. IT UPHELD THE SUBPOENA FOR THE TAPES OF OVAL OFFICE CONVERSATIONS THAT REVEALED PRESIDENT NIXON’S EFFORTS TO COVER UP THE WATERGATE BREAK-IN. THIS AS YOU KNOW WAS U.S. V. NIXON. YOU HAVE SAID THAT THE NIXON CASE MIGHT HAVE BEEN WRONGLY DECIDED. WAS U.S. V. NIXON WRONGLY DECIDED? IN YOUR VIEW?>>SO THAT QUOTE IS NOT IN CONTEXT, IT IS A MISS UNDERSTANDING OF MY POSITION. THAT’S UP THERE. I HAVE REPEATEDLY CALLED U.S. V. NIXON ONE OF THE FOUR GREATEST MOMENTS IN SUPREME COURT HISTORY. SO I’VE CALLED THAT THE FOUR I’VE ALWAYS IDENTIFIED ARE MARBURY VERSUS MADISON, YOUNGSTOWN STEEL, BROWN VERSUS BOARD OF EDUCATION AND UNITED STATES VERSUS RICHARD NIXON. AND WHY HAVE I — BROWN VERSUS BOARD, BY THE WAY — >>WAS IT RIGHTLY DECIDED?>>SO, I HAVE SAID THAT, I’VE SAID YES, THAT THE COURT’S HOLDING THAT A CRIMINAL TRIAL SUBPOENA TO A PRESIDENT IS IN THE CONTEXT OF THE, THE SPECIAL COUNSEL REGULATIONS IN THAT CASE, FOR INFORMATION, A CRIMINAL TRIAL SUBPOENA FOR INFORMATION UNDER THE SPECIFIC REGULATIONS IN THAT CASE, I HAVE SAID THAT HOLDING IS ONE OF THE FOUR GREATEST MOMENTS IN SUPREME COURT HISTORY. SO NOT ONLY WHAT I WAS, I CAN EXPLAIN HOW THAT MISUNDERSTANDING CAME UP. BECAUSE I KNOW THERE WAS A NEWS STORY ABOUT THAT. AND THAT’S JUST NOT CORRECT IMPRESSION OF MY VIEWS. MY VIEWS HAVE BEEN CONSISTENTLY WHY WAS IT ONE OF THE GREATEST MOMENTS? IT WAS ONE OF THE GREATEST MOMENTS BECAUSE OF THE POLITICAL PRESSURES AT THE TIME. THE COURT STOOD UP FOR JUDICIAL INDEPENDENCE IN A MOMENT OF NATIONAL CRISIS. THAT’S WHEN THE SUPREME COURT — WE NEED THE SUPREME COURT TO DECIDE THINGS WE CAN FORESEE, BUT ONE OF THE THINGS THAT’S REALLY IMPORTANT FOR THE SUPREME COURT — WE’RE GOING TO HAVE CRISIS MOMENTS IN THE SUPREME COURT ON THINGS WE CAN’T EVEN PREDICT. WE NEED PEOPLE ON THE SUPREME COURT WHO ARE PREPARED FOR THAT. AND IN U.S. V. NIXON — >>MY TIME IS GOING TO RUN OUT VERY QUICKLY.>>LET ME ASK YOU THIS, CAN A SITTING PRESIDENT BE REQUIRED TO RESPOND TO A SUBPOENA?>>SO THAT’S A HYPOTHETICAL QUESTION ABOUT WHAT WOULD BE AN ELABORATION OR A DIFFERENCE FROM U.S. V. NIXON’S PRECISE HOLDING. AND I THINK GOING WITH THE JUSTICE GINSBERG PRINCIPLE, WHICH IS REALLY NOT THE JUSTICE GINSBERG ALONE PRINCIPLE. IT’S EVERYONE’S PRINCIPLE. ON THE CURRENT SUPREME COURT. AS A MATTER OF THE CANONS OF JUDICIAL INDEPENDENCE, I CAN’T GIVE YOU AN ANSWER ON THAT HYPOTHETICAL QUESTION.>>SO YOU CAN’T GIVE ME AN ANSWER ON WHETHER A PRESIDENT HAS TO RESPOND TO A SUBPOENA FROM A COURT OF LAW?>>AS MY, THERE’S, MY UNDERSTANDING, IS THAT YOU’RE ASKING ME TO GIVE MY VIEW ON A POTENTIAL HYPOTHETICAL. AND THAT’S SOMETHING THAT THE EACH OF THE EIGHT JUSTICES CURRENTLY SITTING ON THE SUPREME COURT WHEN THEY’RE SITTING IN MY SEAT, DECLINED TO DECIDE POTENTIAL HYPOTHETICAL CASES. KY TELL YOU ABOUT THE U.S. V. NIXON PRECEDENT. AND I DID ABOUT CHIEF JUSTICE BERGER’S ROLE IN FORGING A UNANIMOUS OPINION AND REALLY ALL THE JUSTICES WORKED TOGETHER ON THAT. BUT CHIEF JUSTICE BERGER WHO HAD BEEN APPOINTED BY PRESIDENT NIXON, APPOINTED BY PRESIDENT NIXON WRITES THE OPINION IN U.S. V. NIXON. 8-0, REHNQUIST RECUSED. 8-0, ORDERING PRESIDENT NIXON TO DISCLOSE THE TAPES IN RESPONSE TO A CRIMINAL TRIAL SUBPOENA. A MOMENT OF CRISIS ARGUMENT I THINK JULY 8, 1974, THEY DECIDED TWO WEEKS LATER. REALLY IMPORTANT OPINION. MOMENT OF JUDICIAL INDEPENDENCE. IMPORTANT PRECEDENT OF THE SUPREME COURT. BUT HOW THAT WOULD APPLY TO OTHER HYPOTHETICALS? I BEST AS A SITTING JUDGE, AND AS A NOMINEE FOLLOW THE PRESS DIDN’T OF THE NOMINEE WHO IS HAVE BEEN HERE BEFORE. AND AS A MATTER OF JUDICIAL INDEPENDENCE, NOT GIVE YOU A PRECISE ANSWER ON A HYPOTHETICAL THAT COULD COME BEFORE ME.>>I UNDERSTAND, THANK YOU VERY MUCH FOR BEING FORTHCOMING, I APPRECIATE IT. THANK YOU, MR. CHAIRMAN.>>I ASSUME YOU WANT TO RESERVE YOUR THREE MINUTES?>>CAN I DO THAT?>>YEAH.>>I WILL.>>SENATOR HATCH.>>BEFORE I BEGIN, I’D LIKE TO ENTER INTO THE RECORD THREE LETTERS AND AN OP-ED SUPPORTING JUDGE KAVANAUGH’S CONFIRMATION. THE FIRST LETTER WHICH I MENTIONED YESTERDAY IN MY OPENING STATEMENT IS A LETTER FROM 41 ATTORNEYS WHO ARE MEMBERS OF THE SUPREME COURT BAR. THE SIGNERS INCLUDE PEOPLE LIKE LISA BLATT. DEANNE MAYNARD AND KATHLEEN SULLIVAN. THE SIGNERS HOLD A BROAD RANGE OF POLITICAL, POLICY AND JUDE PRUDENCE VIEW. BUT THEY SPEAK AS ONE IN SUPPORTING JUDGE KAVANAUGH’S NOMINATION, UNQUOTE. THE LETTER AUTHORS WRITE QUOTE BASED ON OUR EXPERIENCE WITH JUDGE KAVANAUGH AND HIS WORK OVER 12 YEARS OF DISTINGUISHED JUDICIAL SERVICE, WE’RE CONFIDENT THAT HE PRO SESS THE CHARACTER, TEMPERAMENT AND INTELLECT THAT WE MAIL HICK AN ASSET TO THE NATION’S HIGHEST COURT. THE SECOND LETTER IS FROM CAROLYN WILLIAMS, A PARTNER AT A D.C. LAW FIRM WILLIAMS AND CONNOLLY, WHO SERVED ON THE ABA’S COMMITTEE ONNED FEDERAL JUDICIARY. SHE’S FOLLOWED JUDGE KAVANAUGH’S LEGAL CAREER SINCE 1990, WHEN SHE WAS THE HIRING PARTNER AT THE FIRM. AND HE WAS A LAW STUDENT. MS. WILLIAMS SAYS THAT JUDGE KAVANAUGH HAS QUOTE ALL THE QUALITIES LITIGANTS AND LAWYERS HOPE TO FIND IN A SUPREME COURT JUSTICE. SUPERB INTELLECT AND LEGAL ACUMEN, FUNDAMENTAL FAIRNESS AND DECENCY, ABIDING RESPECT FOR PRECEDENT, AND THE RULE OF LAW. UNQUOTE. NOW I ALSO WANT TO ENTER INTO THE RECORD A LETTER, A LETTER AND OP-ED BY JAY LEFKOWITZ. IT APPEARED IN “NATIONAL REVIEW” AND IS ENTITLED “BRETT KAVANAUGH IS A MENSCH.” HE WRITES THAT JUDGE KAVANAUGH HAS A STRONG COMMITMENT TO PROTECTING AMERICANS’ FREEDOM OF RELIGION. NO MATTER WHAT THEIR FAITH UNQUOTE MR. LEFKOWITZ SHOULD KNOW, HE AND JUDGE KAVANAUGH WORKED TOGETHER IN PRIVATE PRACTICE ON A PRO BONO RELIGIOUS FREEDOM CASE REPRESENTING A JEWISH SYNAGOGUE IN MARYLAND. THEY WON THE CASE. VINDICATING THE RIGHT OF THE CONGREGATION TO BUILD A PLACE OF WORSHIP IN THEIR NEIGHBORHOOD. LET ME JUST BEGIN WITH THIS. BEFORE I BEGIN, JUDGE, I’D LIKE TO ASK YOU TO 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 THAT PRESIDENT TRUMP NOMINATED YOU BECAUSE HE THOUGHT YOU WOULD RULE IN HIS FAVOR SHOULD CERTAIN ISSUES COME BEFORE THE COURT. SUPPOSE HAD YOU A CASE INVOLVING PRESIDENT TRUMP, OR AN ISSUE NEAR AND DEAR TO THE PRESIDENT. WHAT ASSURANCES COULD YOU PROVIDE THAT YOU WILL NOT ALLOW THE PRESIDENT’S PERSONAL VIEWS ON A CASE OR PERSONAL INTERESTS TO IMPACT YOUR DECISION?>>SENATOR, I’M AN INDEPENDENT JUDGE. FOR 12 YEARS I’VE BEEN DECIDING CASES BASED ON THE LAW AND THE PRECEDENT. AND IN EACH CASE, IF CONFIRMED TO THE SUPREME COURT, THAT’S HOW I’LL DO IT AS WELL. BE PART OF A TEAM OF 9. I’LL DECIDE CASES BASED ON THE CONSTITUTION, THE LAW, THE PRECEDENT, THE SUPREME COURT WORKING WITH THAT THE OTHER EIGHT JUSTICES WITHOUT FEAR OF FAVOR. INDEPENDENTLY. WITHOUT PRESSURE FROM ANY QUARTER. AND THE PERSON WHO HAS THE BEST ARGUMENTS ON THE LAW AND THE PRECEDENT IS THE PERSON WHO WILL WIN WITH ME.>>IF AT AS ARTICULATED SUBJECT TO THE RULES OF STARE DECISIS, I WOULD DO SO.>>YOU WERE APAINTED TO THE D.C. CIRCUIT BY GEORGE W. BUSH. I THINK IT’S FAIR TO SAY YOU WERE CLOSE TO PRESIDENT BUSH. YOU WORK FORD HIM FOR A NUMBER OF YEARS. CAN YOU GIVE, GIVE US SOME EXAMPLE OF CASES IN WHICH YOU RULED AGAINST THE BUSH ADMINISTRATION NOTWITHSTANDING THAT PRESIDENT BUSH WAS THE ONE WHO PUT YOU ON THE BENCH?>>SENATOR THE MOST PROMINENT EXAMPLE IS THE HAMDON CASE, THAT WAS THE MILITARY COMMISSION’S CASE, THAT WAS A SIGNATURE PROSECUTION OF THE BUSH ADMINISTRATION. THEY HAD ESTABLISHED WITH CONGRESSIONAL AUTHORIZATION EVENTUALLY AFTER A UNILATERAL EFFORT DIDN’T SUCCEED IN THE COURTS, ESTABLISHED MILITARY COMMISSIONS. THE MILITARY COMMISSIONS WERE TO TRY AL QAEDA TERRORISTS WHO HAD COMMITTED WAR CRIMES. AND WON CASE CAME TO US, SALEEM HAMDON. AND 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 HAVE COMMITTED IT. EX POST FACTO PRINCIPLES, I WROTE THE OPINION REVERSING HIS CONVICTION. EVEN THOUGH IT WAS A SIGNATURE PROSECUTION OF THE UNITED STATES, EVEN THOUGH IT WAS A NATIONAL SECURITY CASE. BECAUSE THAT’S, WAS THE RIGHT ANSWER UNDER THE LAW AND IT DOESN’T MATTER WHO YOU ARE, OR WHERE YOU COME FROM. IF YOU’RE RIGHT UNDER THE LAW, PREVAIL.>>I WOULD LIKE TO TURN NOW TO YOUR WORK ON THE BUSH ADMINISTRATION. AS YOU KNOW MY DEMOCRATIC COLLEAGUES ARE DEMANDING TO SEE EVERY, EVERY PIECE OF PAPER OR EVERY SINGLE SCRAP OF PAPER YOU EVER TOUCHED DURING YOUR SIX YEARS IN THE BUSH ADMINISTRATION. IN PART BECAUSE THEY WANT TO KNOW WHAT ROLE IF ANY YOU PLAYED IN DEVELOPING THE BUSH ADMINISTRATION’S INTERROGATION’S POLICIES. SIX YEARS AGO, RANKING MEMBER FEINSTEIN, WHO WAS THEN CHAIRMAN OF THE SENATE INTELLIGENCE COMMITTEE, AND A GOOD ONE AT THAT, ISSUED A LENGTHY REPORT ON THE C.I.A.’S INTERROGATION PROGRAM UNDER PRESIDENT BUSH. THE REPORT DETAILED THE ORIGINS, DEVELOPMENT AND IMPLEMENTATION OF THE PROGRAM. IN 2014, IT DECLASSIFIED VERSION OF THAT REPORT WAS RELEASED TO THE PUBLIC. THE DECLASSIFIED VERSION OR REPORT RUNS WELL OVER 500 PAGES. YOUR NAME APPEARS NOWHERE IN IT. NOW I MYSELF SPENT OVER 20 YEARS ON THE INTELLIGENCE COMMITTEE. I KNOW THE QUALITY OF ITS STAFF AND THE WORK THAT THEY DO. AND I KNOW THE RANKING MEMBER AND HOW DILIGENT SHE IS IF YOU HAD PLAYED A ROLE IN THE BUSH ADMINISTRATION’S INTERROGATION’S POLICIES, THINK THE RANKING MEMBER WOULD HAVE DISCOVERED IT. NUMEROUS ADMINISTRATION LAWYERS APPEAR IN THE REPORT, BUT NOT YOU. THAT SHOULD TELL US SOMETHING. WITH THAT SAID, JUDGE KAVANAUGH, 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 POLICIES?>>WELL THE POLICIES THAT ARE REFLECTED AND DESCRIBED IN SENATOR FEINSTEIN’S EXTENSIVE, THOROUGH REPORT, WERE VERY CONTROVERSIAL, AS YOU KNOW, SENATOR, THE ENHANCED INTERROGATION TECHNIQUES AND THE LEGAL MEMOS THAT WERE INVOLVED IN JUSTIFYING SOME OF THOSE. TECHNIQUES, ALSO WERE VERY CONTROVERSIAL WHEN THEY WERE DISCLOSED IN 2004. AND I WAS NOT INVOLVED, I WAS NOT READ INTO THAT PROGRAM. NOT INVOLVED IN CRAFTING THAT PROGRAM. NOR CRAFTING THE LEGAL JUSTIFICATIONS FOR THAT PROGRAM. IN ADDITION TO SENATOR FEINSTEIN’S REPORT. THE JUSTICE DEPARTMENT DID A LENGTHY OFFICE OF PROFESSIONAL RESPONSIBILITY REPORT ABOUT THE LEGAL MEMOS THAT HAD 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, THIS CAME UP AT MY LAST HEARING. A NUMBER OF LAWYERS WHO WERE INVOLVED, INCLUDING A COUPLE WHO WERE THEN JUDICIAL NOMINEES AND MY LAST HEARING, I RECALL SENATOR DURBIN ASKING ABOUT WHETHER I ALSO WAS LIKEWISE INVOLVED AS THESE OTHER JUDICIAL NOMINEES HAD BEEN AND THE ANSWER WAS NO. AND THAT ANSWER WAS ACCURATE. AND THAT ANSWER HAS BEEN SHOWN TO BE ACCURATE BY THE OFFICE OF PROFESSIONAL RESPONSIBILITY REPORT. BY SENATOR FEINSTEIN’S THOROUGH REPORT. AND I DO WANT TO SAY ON SENATOR FEINSTEIN’S REPORT THAT IS AN IMPORTANT PIECE OF WORK THAT COLLECTED FACTS ABOUT A PROGRAM THAT IS IMPORTANT FOR US TO KNOW THOSE FACTS. FOR THE FUTURE. AND I KNOW AS AN ENORMOUS EFFORT AND A LOT OF TOUGH WORK TO GET ALL THAT INFORMATION FOR SENATOR FEINSTEIN AND THE INTELLIGENCE COMMITTEE. BUT I HAVE LOOKED THROUGH THAT REPORT. AND LOOKED THROUGH THE OFFICE OF PROFESSIONAL RESPONSIBILITY REPORT. I WAS NOT READ INTO THAT PROGRAM, SENATOR, THANK YOU FOR ASKING. >>JUDGE YOU’VE BEEN ACCUSED OF MISLEADING THIS COMMITTEE DURING YOUR 2006 CONFIRMATION HEARING REGARDING YOUR ROLE IN DEVELOPING THE BUSH ADMINISTRATION DETENTION POLICY. NOW YOU HAVE A STRONG REPUTATION IN THE LEGAL COMMUNITY FOR HONESTY AND INTEGRITY. READ ANY ONE OF THE DOZENS OF LETTERS WE RECEIVED SUPPORTING YOUR NOMINATION AND YOU’LL SEE THAT RIGHT AWAY. NOW SOME OF MY COLLEAGUES MAY NOT GIVE YOU THE OPPORTUNITY TO ANSWER THIS QUESTION FULLY. SO I’D LIKE TO GIVE YOU THE OPPORTUNITY NOW. DID YOU MISLEAD THIS COMMITTEE IN 2006? IF NOT, WHAT IS THE SOURCE OF THE CONFUSION ABOUT YOUR PRIOR TESTIMONY?>>I TOLD THE TRUTH, THE WHOLE TRUTH AND MY PRIOR TESTIMONY. I WAS NOT READ INTO THAT PROGRAM, THE SUBSEQUENT REPORTS OF SENATOR FEINSTEIN AND OFFICE OF PROFESSIONAL RESPONSIBILITY SHOW THAT. AND THAT IS, THAT IS WHAT I DID THEN. THAT’S THE ANSWER NOW. I WAS NOT READ INTO THAT PROGRAM. >>OKAY, AS I MENTIONED, IN MY OPENING STATEMENT, 18 OF YOUR FORMER WOMEN LAW CLERKS HAVE WRITTEN TO THE COMMITTEE IN SUPPORT OF YOUR NOMINATION. THAT’S ALL OF YOUR FORMER WOMEN LAW CLERKS, WHO WERE NOT PRECLUDED BY THEIR CURRENT OR PENDING EMPLOYMENT FROM SIGNING THE LETTER. NOW THESE WOMEN DESCRIBE THE MENTORING AND ENCOURAGEMENT YOU’VE GIVEN THEM IN THEIR CAREERS. AND THEY SAY THAT YOU ARE QUOTE ONE OF THE STRONGEST ADVOCATES IN THE FEDERAL JUDICIARY FOR WOMEN LAWYERS. UNQUOTE. QUITE A COMPLIMENT. A MAJORITY OF YOUR CLERKS IN FACT HAVE BEEN WOMEN. I UNDERSTAND THAT YOU WERE THE FIRST JUDGE IN THE HISTORY OF THE D.C. CIRCUIT TO HAVE AN ALL-FEMALE CLASS OF CLERKS. WHY DO YOU BELIEVE IT IMPORTANT? TO ENCOURAGE YOUNG WOMEN LAWYERS AND TO INSURE THAT BOTH MEN AND WOMEN ARE WELL REPRESENTED IN THE LEGAL PROFESSION?>>SENATOR, I BELIEVE IN EQUALITY. EQUALITY FOR ALL AMERICANS, MEN AND WOMEN, ALSO REGARDLESS OF RACE, ETHNICITY. MY MOM WAS AN EXAMPLE. AS I DESCRIBED YESTERDAY, OF BREAKING BARRIERS. SHOWING ME FIRST ON RACIAL EQUALITY BY HER EXAMPLE OF TEACHING AT McKINLEY TECH. THEN WHEN SHE BECAME A LAWYER IN THE LATD ’70s, THERE WERE NOT MANY WOMEN PROSECUTORS AT THE TIME. DEFINITELY MALE-DOMINATED AND HOW SHE OVERCAME BARRIERS. IT WAS A GREAT PROSECUTOR, BECAME A STATE TRIAL JUDGE IN MARYLAND. APPOINTED BY DEMOCRATIC GOVERNORS. SHE SHOWED ME BY HER EXAMPLE, THE IMPORTANCE OF WOMEN’S EQUALITY. DURING COLLEGE, YOU’VE RECEIVED A LETTER FROM TEN COLLEGE FRIENDS OF MINE WHO WERE WOMEN ATHLETES AT YALE. TALKED ABOUT HOW I TREATED THEM IN WOMEN’S SPORTS WITH RESPECT AND AS EQUAL. EVEN WHEN I WAS IN COLLEGE. YOU HAVE A LETTER FROM 84 WOMEN I WORKED WITH IN THE BUSH ADMINISTRATION. WHO TALKED ABOUT MY EFFORTS TO WORK WITH THEM IN THE TENSE ENVIRONMENT OF THE WEST WING, ESPECIALLY AFTER SEPTEMBER 11th.>>DID YOU SA I 84?>>84 WOMEN SIGNED A LETTER WHO WORKED IN THE WHITE HOUSE, BUSH WHITE HOUSE, AND WORKED IN THAT TENSE ENVIRONMENT. BUT I CAME TO BE A JUDGE IN 2006, MAY 2006. AND AUGUST 2006 LINDA GREENHOUSE OF “THE NEW YORK TIMES” RUNS A STORY IN “THE NEW YORK TIMES” ABOUT THE SCARCITY OF WOMEN LAW CLERKS AT THE SUPREME COURT. THERE WERE 7 THAT YEAR OUT OF 37. SHE WROTE A STORY ABOUT THAT. THAT SEEMED TO ME VERY ODD AND UNACCEPTABLE. I STARTED THINKING ABOUT WHAT I COULD DO. FIRST OF ALL, WHY IS THAT HAPPENING AND WHAT CAN I DO ABOUT IT? WHAT’S THE PROBLEM, WHAT CAN I DO? SO, THE PROBLEM SEEMED TO ME THESE NETWORKS THAT PEOPLE — JUDGES RELY ON FOR CLERK HIRINGS, PROFESSOR NETWORKS, WERE GETTING — WERE EXCLUDING WOMEN OR AT LEAST WOMEN WEREN’T FULLY REPRESENTED IN THOSE. THAT’S TRUE WITH MINORITIES AS WELL, BY THE WAY. SO I MADE SURE WHEN I WAS TALKING TO PROFESSORS AT LAW SCHOOLS, I MADE SURE, I WANT TO SEE A BROAD POOL OF QUALIFIED, WELL-QUALIFIED APPLICANTS, INCLUDING WOMEN. AND IN THAT YEAR, FOR EXAMPLE, FALL OF 2006, WHICH WAS MY FIRST YEAR ON THE BENCH, WE HIRE A YEAR AHEAD, SO I’M HIRING FOR 2007, AND I HIRED THREE WOMEN FOR THAT CLERK CLASS, THREE OUT OF FOUR. AND THAT WAS THE START OF MY EFFORTS TO MAKE SURE THAT WOMEN WERE NOT BEING EXCLUDED. AND I REALLY WORKED ON, WHY IS THIS HAPPY? YALE LAW WOMEN DID A STUDY ABOUT FIVE YEARS AGO ABOUT PARTICIPATION IN CLASS, THE DIFFERENCES ABOUT WHO GETS CALLED ON IN CLASS AND THERE ARE SLIGHT DIFFERENCES THERE, MEN AND WOMEN. WHO THEN GETS SELECTED AS RESEARCH ASSISTANTS, SLIGHT DIFFERENCES THERE. AND IT JUST KEEPS BUILDING UNTIL YOU GET A DISPARITY IN THE CLERK NETWORK. AND THERE’S A PIPELINE PROBLEM. AND I SAID, I’M BREAKING THROUGH THAT PROBLEM. I’M NOT LISTENING TO THAT. SO I’VE BEEN VERY AGGRESSIVE IN HIRING THE BEST, AND THE BEST INCLUDE WOMEN. AS YOU SAY, SENATOR, A MAJORITY OF MY CLERKS HAVE BEEN WOMEN. 25. I BELIEVE 21 OF THEM HAVE GONE ON TO CLERK AT THE SUPREME COURT. AND THEY’RE AN AWESOME GROUP. IF CONFIRMED TO THE SUPREME COURT,LY CONTINUE TO DO THIS. WHAT IT TAKES, AND I THINK MY MOM SHOWED ME THIS, PRESIDENT BUSH SHOWED ME THIS A LITTLE. WHAT IT TAKES IS JUST NOT ACCEPTING THE SAME OLD ANSWER. OH, THERE’S A DISPARITY. WELL, WHY? THEN DO SOMETHING ABOUT IT. I TRIED TO FIGURE OUT WHY — WE CAN TALK ABOUT MINORITY CLERKS, TOO, BUT ON WOMEN, WHY WERE THOSE DISPARITIES EXISTING AS DESCRIBED BY LINDA GREENHOUSE. I TRIED TO FIGURE OUT WHY AND I DID SOMETHING ABOUT IT. I’M VERY PROUD OF THAT BECAUSE I DO BELIEVE ALL PEOPLE SHOULD BE TREATED EQUALLY. THE LAW CLERK POSITION, WHICH MAY SOUND MINISTERIAL, THOSE POSITIONS ARE VERY IMPORTANT LAUNCHING PADS FOR THE NEXT GENERATION OF LEADERS. THE PEOPLE WHO WILL BE SITTING IN THESE SEATS, THE PEOPLE WILL BE SITTING IN MY SEAT, LOTS OF THEM ARE GOING TO COME FROM LAW CLERKS. SO, IF WE’RE NOT BEING INCLUSIVE NOW, THAT WILL SHOW UP LATER. IT’S A CRITICAL PART OF SOMETHING I’M VERY FOCUSED ON AT ALL TIMES IS A QUALITY IN THE CLERKSHIP HIRING PROCESS AND MAKING SURE WOMEN ARE GETTING THE SAME OPPORTUNITIES THAT MEN ARE. I APPRECIATE THE QUESTION, SENATOR. >>THANK YOU. AND I APPRECIATE THE ANSWER. AND I THINK EVERYBODY IN THIS COUNTRY SHOULD APPRECIATE THE ANSWER. AND I THINK IT DISTINGUISHES YOU. LATE LAST YEAR ALLEGATIONS AGAINST FORMER NINTH CIRCUIT ALEX KOZINSKI SURFACED WHEN “THE WASHINGTON POST” PUBLISHED AN ARTICLE OF DISTURBING ALLEGATIONS OF MISCONDUCT BY THE JUDGE. YOU CLERKED FOR JUDGE KOZINSKI FOR ONE YEAR, IN 1991, 1992. SOME OF YOUR OPPONENTS SUGGEST YOU MUST HAVE KNOWN ABOUT THESE ALLEGATIONS. THIS SEEMS TO ME TO BE AN EFFORT OF GUILT BY ASSOCIATION, WHICH IS NOT THE WAY THIS COMMITTEE SHOULD OPERATE IN ANY WAY. REQUEST THAT IN MIND, I WANT TO GIVE YOU A CHANCE TO ANSWER A FEW QUESTIONS ABOUT JUDGE KOZINSKI SO THAT WE’RE ALL OPERATING ON THE SAME FOUNDATION OF FACTS. FIRST, HOW LONG HAVE YOU KNOWN JUDGE KOZINSKI?>>I CLERKED FOR HIM IN 1991-92. I STARTED THE CLERKSHIP 27 YEARS AGO.>>SECOND. I UNDERSTAND FROM MEDIA REPORTS THAT THE JUDGE OPERATED AN E-MAIL LIST WHERE HE WOULD SEND INAPPROPRIATE MATERIAL. WERE YOU ON THIS E-MAIL LIST?>>I DON’T REMEMBER ANYTHING LIKE THAT, SENATOR. >>HOW LONG DID YOU TALK WITH JUDGE KOZINSKI ON THE PHONE?>>NOT OFTEN. NOT OFTEN, SENATOR. >>HOW OFTEN DID YOU SEE HIM IN PERSON?>>AGAIN, NOT OFTEN. MAYBE WHEN THERE WAS A LEGAL CONVENTION. >>THAT’S WHAT PEOPLE DON’T UNDERSTAND.>>HE WAS IN THE PASADENA COURTHOUSE IN CALIFORNIA WITH SMALL COURTHOUSE. I WAS, OF COURSE, WAS WORKING IN WASHINGTON, D.C. >>WHEN YOU DID SEE AND TALK WITH JUDGE KACZYNSKI, WHAT TYPE OF THINGS DID YOU TALK ABOUT?>>WE WERE AMONG THE 12 CO-AUTHORS OF THE BRIAN GARNER BOOK. THAT WAS A PROJECT THE 12 OF US, I GUESS IT WAS IN TOTAL, WERE WORKING ON THAT. DIANE WOOD, CHIEF JUDGE OF THE SEVENTH CIRCUIT AND JUSTICE GORSUCH. AND JUDGE KA SFWLIN SKI RAN JUSTICE KENNEDY’S LAW CLERK HIRING PROCESS. IN THE COURSE OF THAT PROCESS I WOULD HAVE COMMUNICATIONS WITH THE JUDGE. >>OKAY. DID YOU KNOW ANYTHING ABOUT THESE ALLEGATIONS?>>NOTHING.>>OKAY. BEFORE THEY BECAME PUBLIC LAST YEAR?>>NO. WHEN THEY BECAME PUBLIC, THE FIRST THOUGHT I THIS IS NO WOMAN SHOULD BE SUBJECTED TO SEXUAL HARASSMENT IN THE WORKPLACE, EVER. INCLUDING THE JUDICIARY. ESPECIALLY IN THE JUDICIARY. AND WHEN I HEARD, WHEN IT BECAME PUBLIC, I THINK IT WAS DECEMBER, IT WAS A GUT PUNCH. IT WAS A GUT PUNCH FOR ME. >>IT WAS FOR ME, TOO. >>IT WAS A GUT PUNCH FOR THE JUDICIARY. AND I WAS SHOCKED AND DISAPPOINTED, ANGRY, SWIRL OF EMOTIONS. NO WOMAN SHOULD BE SUBJECTED TO SEXUAL HARASSMENT IN THE WORKPLACE. I APPLAUD CHIEF JUSTICE ROBERTS APPOINTED COMMITTEE OF JUDGES TO ESTABLISH BETTER PROCEDURES. CHIEF JUDGE SCARLAND DID THE SAME THING FOR OUR COURT. THOSE ARE THE FIRST STEPS. I DON’T THINK THEY’RE FINAL STEPS, BY ANY STRETCH. AND WHAT THIS IS PART OF A MUCH LARGER NATIONAL PROBLEM OF ABUSE AND HARASSMENT. ONE OF THE THINGS WE’VE LEARNED IS WE NEED BETTER REPORTING MECHANISMS. WOMEN PARTICULARLY IN THE WORKPLACE NEED TO KNOW IF THEY’RE THE VICTIM OF HARASSMENT, WHERE TO REPORT IT IMMEDIATELY, WHO TO REPORT IT TO. THEY NEED TO BE KNOWN — KNOW THEY’LL BE SAFE IF THEY REPORT IT. THEY WON’T BE RETALIATED AGAINST AND THEY’LL BE PROTECTED IF THEY REPORT IT. THAT’S PART OF THE STEPS OR ONE OF THE STEPS THAT’S, I THINK, BEING IMPROVED AS A RESULT OF THE WORKING GROUP OR COMMITTEE THAT THE CHIEF JUSTICE HAS APPOINTED. AND I’M INTERESTED IN DOING EVERYTHING I CAN TO ASSIST THOSE EFFORTS TO MAKE THOSE WORKPLACES SAFE. IT’S PART OF A BROADER PROBLEM. WHETHER IT’S PRIESTS OR TEACHERS OR COACHES OR DOCTORS OR BUSINESS PEOPLE OR NEWS PEOPLE, THERE’S A LOT — THERE’S A BROAD NATIONAL PROBLEM THAT NEEDS TO BE ADDRESSED, INCLUDING IN THE JUDICIARY. I APPLAUD CHIEF JUSTICE ROBERTS FOR DOING SO. >>OKAY. I’D LIKE TO TALK TO YOU NOW ABOUT THE — THE CHEVRON DOCTRINE. THIS IS AN IMPORTANT JUDICIAL DOCTRINE THAT TAKES ITS NAME FROM THE SUPREME COURT CASE THAT CREATED IT BACK IN THE 1980s. IN THAT CASE THE SUPREME COURT INSTRUCTED FEDERAL AGENCIES TO DEFER A FEDERAL AGENCY’S LAW. SOME OF YOUR ACADEMIC WRITINGS EXPRESS SKEPTICISM ABOUT THE CHEVRON DOCTRINE AND CONCERN THAT IT ALLOWS AN ADMINISTRATION TO IMPOSE ITS POLICY PREFERENCE BY AVOIDING THE POLITICAL PROCESS. I CAN UNDERSTAND WHY THIS WOULD BE APPEALING TO AN ADMINISTRATION, BUT I ALSO THINK IT’S A THREAT TO THE SEPARATION OF POWERS BECAUSE IT TRANSFERS POWER FROM CONGRESS AND THE JUDICIARY TO THE EXECUTIVE BRANCH. THAT’S WHY I’VE INTRODUCED THE SEPARATION OF POWERS RESTORATION ACT TO REVERSE THE CHEVRON DOCTRINE. MANY MEMBERS OF THIS COMMITTEE HAVE CO-SPONSORED 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 — HOW IT HELPS TO PROTECT INDIVIDUAL FREEDOM.>>SEPARATION OF POWERS PROTECTS INDIVIDUAL LIBERTY BECAUSE IT RESPONDS TO THE CONCERN THE FRAMERS HAD THAT SOMETHING SENATOR KLOBUCHAR SAID YESTERDAY, THAT THE ACCUMULATION OF ALL POWER IN ONE BODY WOULD BE THE VERY DEFINITION OF TYRANNY. FEDERALIST 47 TALKS ABOUT THAT, FEDERALIST 69. THE SEPARATION OF POWER PROTECTS INDIVIDUAL LIBERTY. IT DOES SO BECAUSE COB CAN PASS THE LAWS BUT YOU CAN’T ENFORCE THE LAWS. A SEPARATE BODY HAS TO DECIDE TO ENFORCE THE LAWS. EVEN IF THE LAW IS ENFORCED, A CITIZEN MIGHT SAY, I WANT SOMEONE WHO DIDN’T PASS THE LAW OR ENFORCE IT TO DECIDE WHETHER I VIOLATED THE LAW OR IF THE LAW IS CONSTITUTIONAL. THAT’S 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’S HARD TO PASS A LAW, AS YOU KNOW, IN THE CONGRESS. AND THEN EVEN IF IT DOES GET PASSED, IT AFFECTS YOUR LIBERTY. A SEPARATE BODY HAS TO DECIDE, USUALLY U.S. ATTORNEY’S OFFICE, TO ENFORCE THE LAW. THAT’S A SEPARATE DECISION. THAT HELPS PROTECT YOUR LIBERTY. EVEN IF THAT HAPPENS, YOU GO TO A COURT AND YOU SAY EITHER I DIPLOMAT VIOLATE THAT LAW AS I’M ACCUSED OF DOING OR THAT LAW IS UNCONSTITUTIONAL OR THEY’RE INTRIPT INTERRUPTING THAT LAW. THE COURT INDEPENDENTLY DECIDES THAT. IT’S NOT MEMBERS OF CONGRESS DECIDING THAT. THAT’S HOW THE CONSTITUTION SEPARATION OF POWERSs TILTS TOWARD LIBERTY IN ALL ITS RESPECTS. AS TO YOUR SPECIFIC QUESTION, SENATOR, ONE OF THE THINGS I’VE SEEN IN MY EXPERIENCE IN THE EXECUTIVE BRANCH AND IN THE JUDICIAL BRANCH IS A NATURAL TENDENCY, BUT IT’S A NATURAL TENDENCY THAT JUDGES NEED TO BE AWARE OF AND THEN RESPOND TO. HERE’S THE NATURAL TENDENCY. CONGRESS PASSED LAWS BUT THEN CAN’T UPDATE THE LAW. MAYBE IT’S AN ENVIRONMENTAL LAW OR SOME KIND OF LAW DEALING WITH NATIONAL SECURITY. LET’S TAKE THOSE TWO EXAMPLES TO ILLUSTRATE. THEN AN EXECUTIVE BRANCH AGENCY WANTS TO DO SOME NEW POLICY AND PROPOSES A NEW POLICY TO CONGRESS. BUT CONGRESS DOESN’T PASS THE NEW POLICY. WHAT OFTEN HAPPENS OR TOO OFTEN, I’VE SEEN, IS THAT THE EXECUTIVE BRANCH THEN RELIES ON THE OLD LAW AS A SOURCE OF AUTHORITY TO DO THIS NEW THING. YOU THIS TRY TO SAY THE OLD LAW IS AMBIGUOUS SO WE CAN FIT THE NEW LAW INTO THE OLD LAW. I’VE SEEN THIS IN NATIONAL SECURITY CASES. I’VE SEEN IT IN ENVIRONMENTAL — YOU SEE IT ALL OVER THE PLACE. IT’S A NATURAL PHENOMENON BECAUSE THE EXECUTIVE BRANCH WANTS TO IMPLEMENT WHAT ITTIC THINKS IS GOOD POLICY. NOW, WHEN THOSE CASES COME TO COURT, IT’S OUR JOB TO FIGURE OUT WHETHER THE EXECUTIVE BRANCH HAS ACTED WITHIN THE AUTHORITY GIVEN TO IT BY CONGRESS. HAVE YOU GIVEN THEM THE AUTHORITY? MY ADMINISTRATION LAW JURIS PRUDENCE. I’VE HEARD IT SAID I’M A SKEPTIC OF REGULATION. I’M NOT A SKEPTIC OF REGULATION AT ALL. I’M A SKEPTIC OF ILLEGAL REGULATION, OF REGULATION OUTSIDE THE BOUNDS OF WHAT THE LAWS PASSED BY CONGRESS HAVE SAID. THAT IS WHAT IS AT THE ROOT OF OUR ADMINISTRATIVE LAW JURIS PRUDENCE. >>ONE OF THE MOST IMPORTANT QUALITIES I LOOK FOR IN A JUDICIAL NOMINEE IS THE ABILITY TO PARTIALLY INTERPRET THE LAW AND APPLY IT TO THE CASE BEFORE THE COURT. NOW, THIS CAN OFTEN BE THE MOST DIFFICULT PART OF A JUDGE’S JOB BECAUSE IT MAY REQUIRE THE JUDGE TO RULE AGAINST A LITIGANT THAT MAY BE SYMPATHETIC OR AGAINST A POLICY THAT THE JUDGE MAY PERMANENTLY AGREE WITH. AS JUSTICE SOTOMAYOR’S CONFIRMATION HEARING, SENATOR SCHUMER CONGRATULATED HER. DO YOU BELIEVE IT’S IMPORTANT FOR A JUDGE TO INTERPRET AND APPLY THE LAWS THAT CONGRESS HAS ACTUALLY PASSED RATHER THAN SEEKING TO MAKE UP OR CHANGE THE LAW IF THE JUDGE DOESN’T LIKE WHAT THE CONGRESS HAS DONE? IF SO, WHY OR WHY NOT?>>I AGREE COMPLETELY, SENATOR, THAT’S AT THE FOUNDATION OF WHAT I VIEW AS THE PROPER JUDICIAL PHILOSOPHY. IN THE SEPARATION OF POWER SYSTEM YOU DESCRIBED, WE HAVE TO STICK TO THE LAWS PASSED BY CONGRESS. YOU MAKE THE POLICY, WE’LL FOLLOW THE POLICY DIRECTION YOU PUT INTO EFFECT, PASSED BY THE HOUSE AND SENATE, SIGNED BY THE. THE. WE DON’T REWRITE THOSE LAWS. THE EXECUTIVE BRANCH ALSO SHOULDN’T BE REWRITING THOSE LAWS BEYOND THE SCOPE OF THE AUTHORITY GRANTED. >>SOME OF MY CLEELGS HAVE CRITICIZED YOU FOR PURPORTEDLY RULING AGAINST ENVIRONMENTAL INTERESTS. IT BOILS DOWN TO THE FACT THAT MY COLLEAGUES DON’T LIKE THE ENVIRONMENTAL LAWS CONGRESS HAS PASSED AND ARE FRUSTRATED THEY HAVEN’T BEEN ABLE TO GET THEIR OWN PREFERRED POLICY SIGNED INTO LAW. I’VE LOOKED THROUGH YOUR RECORD. I FOUND THAT YOU HAVE NOT HESITATED AT ALL TO UPHOLD ENVIRONMENTAL REGULATIONS WHEN THEY WERE ACTUALLY AUTHORIZED BY STATUTE. COULD YOU GIVE US A FEW EXAMPLES OF CASES WHERE YOU HAVE UPHELD ENVIRONMENTAL REGULATIONS BECAUSE YOU CONCLUDED THAT CONGRESS HAD AUTHORIZED THEM?>>LIMIT IT TO AS FEW WORDS AS YOU CAN AS TIME IS RUNNING OUT. >>AS I SAID YESTERDAY, I’M A PRO-LAW CASE. ON ENVIRONMENTAL CASES, SOME CASES I’VE RULED AGAINST ENVIRONMENTAL INTERESTS AND IN MANY CASES I’VE RULED AGAINST ENVIRONMENTAL INTERESTS. THEY’RE BIG CASES. ENVIRONMENTAL TRUCKING WHERE I UPHELD A CALIFORNIA RULE. STRICTER AIR QUALITY STANDARDS AND THE NATIONAL ASSOCIATION OF MANUFACTURERS CASE, EPA RULES FOR PARTICULATE MATTER IN THE URG CASE. NATIONAL MINING ASSOCIATION CASE. THE MURRAY ENERGY CASE REJECTING A PREMATURE CHALLENGE TO A CLEAN POWER PLANT REGULATION. NATIONAL RESOURCES COUNCIL RULING FOR ENVIRONMENTALIST GROUPS. IN A CASE — THAT WAS A BIG MONEY CASE WHERE THE INDUSTRY WANTED TO AN AFFIRMATIVE DEFENSE TO BE CREATED FOR ACCIDENTAL ADMISSIONS. THE AFFIRMATIVE DEFENSE WAS NOT IN THE STATUTES PASSED BY CONGRESS. THE INDUSTRY CAME IN WITH THEIR LAWYERS AND SAID, WELL, JUST WRITE THE AFFIRMATIVE DEFENSE INTO THE LAW AND I WROTE THE OPINION SAYING, NO, IT’S NOT IN THE LAW. AND, YES, THAT MIGHT BE A PROBLEM FOR INDUSTRY, BUT WE FOLLOW THE LAW REGARDLESS. SO, THERE ARE A LARGE NUMBER OF CASES WHERE I’VE RULED IN FAVOR MUCH ENVIRONMENTALISTS INTERESTS BECAUSE THAT’S WHAT THE LAW REGULATED. >>THANK YOU.>>GOOD MORNING, JUDGE.>>THANK YOU, SENATOR. >>YOU AND YOUR FAMILY. WE HAVE A LOT OF QUESTIONS AND I KNOW YOU’VE DONE A LOT OF PREPARATION WITH A COUPLE OF OUR DISTINGUISHED REPUBLICAN COLLEAGUES ABOUT THE QUESTIONS YOU MIGHT BE ASKED, BUT LET ME ASK YOU SOMETHING THAT NORMALLY ISN’T AN ISSUE DURING SUPREME COURT HEARINGS. YOU TESTIFIED BEFORE THIS COMMITTEE IN 2004 AND 2006 AS PART OF YOUR NOMINATION TO THE D.C. CIRCUIT COURT. AND YOU WERE NICE ENOUGH TO COME BY MY OFFICE AND CHAT WITH ME LAST MONTH. I ASKED IF YOU WOULD 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 –>>NO, I’M NOT ASKING — I JUST ASKED YOU IF YOU WOULD CHANGE ANYTHING. >>I WOULD LIKE TO EXPLAIN, IF I CAN.>>I’M GOING TO GIVE YOU A CHANCE BECAUSE I’M GOING TO ASK YOU A COUPLE QUESTIONS. GO AHEAD.>>I JUST WANTED TO EXPLAIN THAT AT THE LAST HEARING IN 2006 IN PARTICULAR, YOU WERE CONCERNED, UNDERSTAND BRI, BECAUSE THERE ARE BEEN TWO JUDICIAL NOMINEES INVOLVED IN THE LEGAL MEMOS, IN THE LEGAL DISCUSSIONS AROUND CRAFTING THE ENHANCED INTERROGATION TECHNIQUES AND DETENTION POLICIES. YOU WERE CONCERNED WHETHER I ALSO WAS INVOLVED IN THOSE. AND I MADE CLEAR IN RESPONSE TO THOSE QUESTIONS THAT I WAS NOT READ INTO THAT PROGRAM. THAT WAS 100% ACCURATE. STILL ACCURATE TODAY. I THINK SENATOR FEINSTEIN’S REPORT AND THE OFFICE OF PROFESSIONAL RESPONSIBILITY REPORT ESTABLISHED I WAS NOT INVOLVED IN THOSE PROGRAMS. THERE WERE TWO JUDICIAL NOMINEES –>>OKAY. I WANT TO GO INTO THAT IN A LITTLE BIT. I DON’T WANT TO GO OVER MY TIME AS THE PRECEDING SENATOR DID. I WANTED TO STAY WITH –>>SENATOR, I JUST WANT TO BE CLEAR. I WANT TO REASSURE YOU. >>I’M GOING TO GO INTO IT. I’M GOING TO GIVE YOU A CHANCE TO SPEAK A LOT MORE.>>LET ME –>>I’M NOT GOING TO TAKE TIME AWAY FROM YOU BUT I WANT TO EXPLAIN SOMETHING. I SAID YESTERDAY THAT IF A QUESTION IS ASKED WITHIN THE 30 MINUTES, THAT HE CAN FINISH THE QUESTION AND IT CAN BE ANSWERED. SO, HE DID NOT GO OVER HIS TIME.>>SORRY. I DIDN’T MEAN TO HIT A SENSITIVE AREA. LET ME ASK YOU THIS. BETWEEN — BETWEEN 2001 — I’M NEW HERE. BETWEEN — BETWEEN 2001 AND 2003, TWO REPUBLICAN STAFFERS ON THIS COMMITTEE REGULARLY HACKED INTO THE PRIVATE COMPUTER FILES OF SIX DEMOCRATIC SENATORS, INCLUDING MINE. THESE REPUBLICAN STAFFERS STOLE 4,670 FILES. AND THEY USED THEM TO ASSIST IN GETTING PRESIDENT OBAMA’S MOST CONTROVERSIAL JUDICIAL NOMINEES CONFIRMED. NOW, THE THEFT BY THESE REPUBLICAN STAFFERS BECAME PUBLIC IN LATE 2003 WHEN “THE WALL STREET JOURNAL” HAPPENED TO PRINT SOME OF THE STOLEN MATERIALS. THE RINGLEADER BEHIND THIS MASSIVE THEFT WAS A REPUBLICAN STAFFER NAMED MANNY MIRANDA, WHO HAD WORKED FOR ONE OF THE MEMBERS OF THIS COMMITTEE. IT WAS CONSIDERED A DIGITAL WATERGATE. NOW, DURING ALL THIS YOU WORKED 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 2004-2006 HEARING. I DON’T USE THE WORD EXTENSIVELY LIGHTLY. YOU WERE ASKED OVER 100 QUESTIONS FROM SIX SENATORS, BOTH REPUBLICANS AND DEMOCRATS AND YOU TESTIFIED — YOU TESTIFIED AND YOU TESTIFIED REPEATEDLY THAT YOU NEVER RECEIVED ANY STOLEN MATERIALS. YOU KNOW NOTHING ABOUT IT THAT’S PUBLIC. YOU TESTIFIED THAT IF YOU HAD SUSPECTED ANYTHING UNTOWARD, YOU WOULD REPORT IT TO THE WHITE HOUSE COUNSEL WHO WOULD RAISE IT WITH SENATOR HATCH, ESPECIALLY MR. MIRANDA THAT WORKED FOR HIM. AT THE TIME WE LEFT IT THERE. WE DIDN’T KNOW ANY BETTER. TODAY WITH A VERY LIMITED AMOUNT OF YOUR WHITE HOUSE RECORD THAT HAS BEEN PROVIDED TO THIS COMMITTEE, AND IT IS LIMITED, FOR THE FIRST TIME WE’VE BEEN ABLE TO LEARN ABOUT YOUR RELATIONSHIP WITH MR. MIRANDA AND YOUR KNOWLEDGE OF THESE EVENTS. MY QUESTION IS THIS. DID MR. MIRANDA EVER PROVIDE YOU WITH HIGHLY SPECIFIC INFORMATION REGARDING WHAT I OR OTHER DEMOCRAT SENATORS WERE PLANNING ON ASKING CERTAIN JUDICIAL NOMINEES.>>SENATOR, LET ME CONTEXTUALIZE.>>WELL, THAT’S –>>WHAT’S UP THERE IS 100% ACCURATE, IS MY MEMORY.>>LET ME ASK YOU THIS. >>NEVER KNEW OR SUSPECTED, TRUE. NEVER SUSPECTED ANYTHING UNTOWARD, TRUE. HAD I SUSPECTED SOMETHING UNTOWARD, I WOULD HAVE CONTACTED JUDGE GONZALEZ. I WOULD HAVE TALKED TO SENATOR HATCH. THAT’S ALL 100% TRUE. >>AND THAT’S ALL 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 ASK CERTAIN JUDICIAL NOMINEES?>>WELL, ONE OF THE THINGS WE WOULD DO AS A WHITE HOUSE ON JUDICIAL NOMINATIONS, AND I’M COMING TO YOUR ANSWER, BUT I WANT TO EXPLAIN, IS TO MEET UP HERE, AND THIS HAPPENS ON BOTH SIDES ALL THE TIME, WITH TEAMS UP HERE ABOUT, OKAY, THEIR JUDICIAL NOMINEES ARE COMING UP, HOW ARE WE GOING TO GET THEM THROUGH? HERE’S A HEARING COMING UP. DURING THOSE MEETINGS, OF COURSE, IT WOULD BE DISCUSSED, WELL, I THINK THIS IS WHAT SENATOR LEAHY WILL BE INTERESTED IN. THAT’S VERY COMMON. I’M SURE IN PRESIDENT OBAMA’S ADMINISTRATION WHEN THEY HAD SIMILAR MEETINGS, THEY WOULD PROBABLY HAVE MEETINGS AND SAY, I THINK THIS IS WHAT SENATOR GRAHAM WILL BE INTERESTED IN. THAT’S WHAT YOU DO IN MEETINGS WITH — SO HIGHLY SPECIFIC WOULD, I THINK — I’M NOT SURE WHAT YOU’RE GETTING AT BY HIGHLY SPECIFIC. >>I’VE BEEN HERE OVER 4 YEARS. I KNOW WHAT BOTH DEMOCRATIC AND REPUBLICAN ADMINISTRATIONS DO IN PREPARING. I’M NOT ASKING YOU THAT. I’M ASKING YOU WHY BEFORE THIS DID MR. MIRANDA SEND YOU AN E-MAIL ASKING YOU, ON JULY 19, 2002, ASKING YOU AND ANOTHER BUSH OFFICIAL WHY THE LEAHY PEOPLE WERE LOOKING INTO FINANCIAL TIES BETWEEN TWO SPECIAL INTEREST GROUPS AND PURSUANT ON A PARTICULAR CONTROVERSIAL NOMINEE TO THE FIFTH SURE KIT? YOU HAD HANDLED THAT NOMINATION. AS YOU KNOW, AS A JUDGE,S CEDE A LOT OF CONTRIBUTIONS.>>WELL –>>DID MR. MIRANDA SEND YOU AN E-MAIL ASK YOU WHY THE LEAHY PEOPLE WERE LOOKING INTO HER FINANCIAL TIES?>>IS THAT WHAT THIS E-MAIL IS?>>I’M JUST ASKING YOU.>>WELL, CAN I TAKE A MINUTE TO READ IT?>>OF COURSE. IT SAYS IT WAS FOUR DAYS BEFORE THE HEARING ON JULY 23rd.>>I DON’T HAVE A SPECIFIC RECOLLECTION OF ANY OF THIS, SENATOR, BUT IT WOULD NOT HAVE BEEN UNUSUAL — AND THIS HAPPENS ALL THE TIME, I THINK, WHICH THE LEAHY PEOPLE ARE LOOKING INTO THIS AND THE HATCH PEOPLE ARE LOOKING INTO IT, I THINK. >>YOU SAY ALL THE TIME. TWO DAYS BEFORE THE HEARING HE TOLD YOU THAT THE DEMOCRATS WERE PASSING AROUND A RELATED “60 MINUTES” STORY AND HE SAID IT WAS INTEL, INTELLIGENCE SUGGESTS LEAHY WILL FOCUS ON EVERYTHING MONEY. THAT COMES FROM A STOLEN E-MAIL, STOLEN BY A REPUBLICAN STAFF MEMBER SENT TO ME THE NIGHT BEFORE AND GIVEN TO YOU THE NEXT MORNING. WERE YOU AWARE THAT YOU WERE GETTING FROM MR. MIRANDA STOLEN E-MAILS?>>NOT AT ALL, SENATOR. IT WAS PART OF WHAT APPEARED TO BE STANDARD DISCUSSION ABOUT, IT’S COMMON, SENATOR, FOR — AT THE WHITE HOUSE, IT WOULD BE COMMON TO HEAR FROM OUR LEG AFFAIRS TEAM. THIS IS, IN FACT, IN THIS PROCESS, IT’S COMMON TO HEAR, THIS IS WHAT SENATOR X IS INTERESTED IN, THIS IS WHAT SENATOR Y –>>WAS IT COMMON TO HAVE COPIES OF A PRIVATE E-MAIL SENT TO A PARTICULAR SENATOR?>>COPIES OF A PRIVATE E-MAIL SENT TO A PARTICULAR SENATOR?>>YES. WOULDN’T THAT JUMP OUT AT YOU?>>WHAT ARE YOU REFERRING TO?>>MR. MIRANDA IS TELLING YOU ABOUT E-MAILS SENT TO ME THE NIGHT BEFORE. THERE WOULD BE NO WAY HE WOULD HAVE THAT UNLESS IT WAS STOLEN. >>DID HE REFER TO THAT E-MAIL IN THIS?>>YES.>>WHERE IS THAT, SENATOR?>>I’LL LET YOU READ IT. >>WHERE, I’M NOT SEEING WHERE YOU’RE — I’M NOT SEEING WHAT YOU’RE REFERRING TO.>>LET ME TAKE YOU TO ONE YOU DO HAVE BECAUSE YOU DO HAVE THIS INFORMATION FROM MR. MIRANDA. THE VERY LIMITED AMOUNT OF MATERIAL THAT REPUBLICANS ARE ALLOWING US TO SEE OF YOUR INFORMATION ABOUT YOU, AT LEAST THAT DID COME THROUGH. IN JANUARY OF 2003 — LET ME GO TO SOMETHING VERY SPECIFIC. MR. MIRANDA FORWARDED A LETTER TO YOU AND OTHER JUDICIARY DEMOCRATS TO THEN MAJORITY LEADER TOM DASCHLE. THE LETTER WAS CLEARLY A DRAFT. IT HAD TYPOS AND WASN’T SIGNED. SOMEONE EVENTUALLY — WE NEVER PUT IT OUT, BUT SOMEONE EVENTUALLY LEAKED THE EXISTENCE TO FOX NEWS. I’M NOT SURE WHO. I COULD GUESS. IT WAS A PRIVATE LETTER. THE TIME IT EXISTED, AND BELIEVE ME, HERE’S 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 FIND A DRAFT LETTER FROM DEMOCRATIC SENATORS TO EACH OTHER BEFORE ANY MENTION OF IT WAS MADE PUBLIC?>>WELL, THE ONLY THING I SAID ON THE E-MAIL EXCHANGE, IF I’M LOOKING AT IT CORRECTLY, SENATOR, IS WHO SIGNED THIS? WHICH WOULD IMPLY I THOUGHT IT WAS A SIGNED LETTER.>>IT WAS SENT TO YOU. WERE YOU SURPRISED TO GET IT? IT’S OBVIOUSLY A DRAFT. IT’S GOT TYPOS AND EVERYTHING ELSE IN IT. WERE YOU SURPRISED A DRAFT LETTER CIRCULATED AMONG DEMOCRATS ENDED UP IN YOUR IN BOX?>>BUT, I’M –>>FROM MR. MIRANDA. >>I THINK THE PREMISE OF YOUR QUESTION IS NOT ACCURATELY DESCRIBING MY APPARENT RECOLLECTION — OR UNDERSTANDING OF THE TIME BECAUSE I WOULDN’T HAVE SAID, WHO SIGNED THIS, IF IT WAS A — IF I THOUGHT IT WAS A DRAFT. MY E-MAIL SAYS, WHO SIGNED THIS?>>SO YOU DIDN’T REALIZE WHAT YOU HAD WAS A STOLEN LETTER SIGNED BY — SIGNED BY ME THAT YOU HAD A LETTER THAT HAD NOT BEEN SENT TO ANYBODY, HAD NOT BEEN MADE PUBLIC?>>WELL, ALL I SEE THAT I SAID WAS, WHO SIGNED THIS? THAT’S ALL I SEE. >>LET ME ASK MORE. SO MUCH OF THIS CAME FROM MR. MIRANDA, WHO WAS A REPUBLICAN STAFFER, WHO WAS, AS WE NOW KNOW, STEALING THINGS. DID HE EVER ASK TO MEET PRIVATELY WITH YOU AT AN OFFSITE LOCATION, SOMEONE OTHER THAN THE WHITE HOUSE OR CAPITOL HILL?>>I THINK SOMETIMES, SENATOR, THAT THE MEETINGS WITH SENATE STAFFERS AND WHITE HOUSE AND JUSTICE DEPARTMENTS –>>I’M JUST ASKING ABOUT ONE PARTICULAR ONE. MR. MIRANDA.>>YES. SOMETIMES — USUALLY IT WOULD BE EITHER AT WHITE HOUSE OR SENATE, BUT SOMETIMES I THINK WE’D MEET — OR DOJ, BUT SOMETIMES COULD BE SOMEWHERE ELSE. >>DID HE ASK TO MEET WITH YOU PRIVATELY SO HE COULD GIVE YOU INFORMATION ABOUT SENATOR BIDEN AND SENATOR FEINSTEIN?>>I’M NOT REMEMBERING ANYTHING SPECIFIC, BUT THAT’S CERTAINLY POSSIBLE. AGAIN, SENATOR, I JUST WANT TO BE CLEAR HERE. BECAUSE I — IT’S VERY COMMON WHEN YOU’RE IN THE JUDICIAL SELECTION PROCESS TO DETERMINE WHAT ARE ALL THE SENATORS INTERESTED IN FOR UPCOMING NOMINEE OR AN UPCOMING HEARING. THAT IS THE COIN OF THE REALM. SENATOR X IS INTERESTED IN FOCUSING ON ADMINISTRATIVE LAW. SENATOR IS CONCERNED ABOUT YOUR PAST WORK FOR THIS CLIENT. AND THAT’S VERY COMMON KIND OF DISCUSSIONS –>>DID HE EVER ASK TO HAVE YOU MEET HIM NOT AT THE WHITE HOUSE, NOT AT THE CAPITOL, BUT AT HIS HOME?>>I DON’T REMEMBER THAT. >>OKAY. DID HE EVER ASK TO MEET YOU OUTSIDE OF THE WHITE HOUSE OR THE CAPITOL?>>I CAN’T RULE THAT OUT. BUT, AGAIN, THAT WOULDN’T HAVE BEEN TYPICAL. >>DID HE — DID HE EVER HAND YOU MATERIAL SEPARATELY FROM WHAT WOULD BE E-MAILED BACK AND FORTH?>>NOT REMEMBERING WHAT YOU’RE — IF YOU’RE REFERRING TO SOMETHING IN PARTICULAR, I CAN ANSWER THAT. >>LET ME ASK YOU THIS. DID YOU EVER RECEIVE INFORMATION VIA MR. MIRANDA OF INFORMATION MARKED CONFIDENTIAL THAT INFORMED YOU MY STAFF WAS SHARING WITH OTHER DEMOCRATS?>>I DON’T KNOW THE ANSWER TO THAT, SENATOR. IT’S NOT ALWAYS THE CASE, IS MY UNDERSTANDING, THAT THE PEOPLE, FOR EXAMPLE, ON YOUR STAFF AND SENATOR HATCH’S STAFF WERE NECESSARILY WORKING AT ODDS. IT SEEMED LIKE A LOT OF TIMES THE STAFF WAS COOPERATING AT TIMES, NOT AT OTHER TIMES, OBVIOUSLY, BUT AT TIMES ABOUT JUDICIAL NOMINATIONS. SO IT WOULDN’T HAVE RAISED ANYTHING IN PARTICULAR IN MY MIND IF WE LEARN, OH, SENATOR LEAHY IS CONCERNED ABOUT THIS. >>DID MY STAFF EVER SEND YOU CONFIDENTIAL MATERIAL FROM SENATOR HATCH THAT WAS STOLEN FROM HIS E-MAILS?>>THE WELL, NOT THAT — NOT THE LAST PART, BUT THE — DID YOUR — I CERTAINLY DID TALK TO YOUR STAFF WHEN WE WERE WORKING ON THE AIRLINE BILL ON THE SEPTEMBER 20, 2001 AIRLINE BILL. I DID REMEMBER BEING HERE ALL NIGHT ONE NIGHT WITH YOUR STAFF AND I’M SURE WE DID TALK THAT NIGHT ABOUT WHAT OTHER SENATORS THOUGHT. THAT WAS THE AIRLINE BILL WHERE, AS I THINK YOU RECALL, SPEAKER HASTERT WAS INVOLVED AND WE WERE UP THERE WITH THE O&B TEAM. I WORKED HARD WITH YOUR STAFF ON THAT. IT STRUCK ME AS VERY — AS NOT UNCOMMON AT ALL TO BE TALKING WITH OUR LEG TEAM ABOUT WHAT SENATORS ON BOTH TEAMS THINK. IT DIDN’T STRIKE ME THAT IT WAS ALWAYS ARMED CAMPS.>>NO. AND OFTENTIMES IT WAS WANT. BUT HERE YOU’RE GETTING OBVIOUSLY VERY PRIVATE DEMOCRATIC E-MAILS. YOU WEREN’T CONCERNED HOW MR. MIRANDA GOT THEM?>>I’M NOT SURE ABOUT YOUR PREMISE.>>WERE 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’M NOT SURE I AGREE WITH THE PREMISE.>>WOULDN’T YOU ASSUME THAT’S SOMETHING NOT BEING SHARED BACK AND FORTH?>>UNLESS IT WAS SHARED. THIS IS THE THING. IF A STAFFER SAID, HERE’S WHAT WE’RE SENDING TO — YOU ALL SHOULD BE AWARE OF THIS BECAUSE WE’RE GOING TO MAKE — WE’RE GOING TO BE OPPOSED TO THIS JUDICIAL NOMINEE. JUST TO BE CLEAR, IT SEEMED TO BE SOMETIMES THERE WERE JUDICIAL NOMINEES YOU WERE VERY OPPOSED TO, SOMETIMES YOU WERE SUPPORTIVE OF AND SOMETIMES IN BETWEEN. AND THERE WOULD BE MESSAGES PASSED BACK AND FORTH AND SHARING OF INFORMATION, VERY COOPERATIVE, AS I RECALL. YOU WERE TRANSPARENT, IN OTHER WORDS. WHEN YOU HAD PROBLEMS WITH NOMINEES, I RECALL TRANSPARENCY. WHEN YOU WERE SUPPORTIVE, YOU WERE AT THE MAY 9 EVENT WHERE THE PRESIDENT ANNOUNCED HIS COURT OF APPEALS NOMINEES. YOU WERE SUPPORTIVE OF MANY OF THEM. >>AS YOU KNOW — I VOTED FOR A LOT OF REPUBLICAN NOMINEES. BOTH THE SUPREME COURT, THE COURT OF APPEALS AND THE DISTRICT COURT. >>YES. BUT WHEN I’VE OPPOSED — WHEN I WAS RAISING SOME QUESTIONS ABOUT FUNDING SHE WAS GETTING FROM PEOPLE THAT WERE BEFORE HER COURT, THAT MIGHT HAVE RAISED A RED FLAG THAT I HAD SOME CONCERNS ABOUT HER. NOW, 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, BUT CERTAINLY IT IS COMMON. AGAIN, THE PEOPLE BEHIND YOU CAN PROBABLY REFER TO THIS, BUT IT’S COMMON, I THINK, FOR EVERYONE TO TALK TO EACH OTHER AT TIMES. AND SHARE INFORMATION. AT LEAST THIS WAS MY SPERPS, THIS IS 20 YEARS AGO ALMOST, WHERE YOU WOULD TALK TO PEOPLE ON THE COMMITTEE. >>YOU NEVER RECEIVED AN E-MAIL FOR REPUBLICAN STAFF MEMBER WITH INFORMATION CLAIMING TO COME FROM SPYING ON DEMOCRATIC MOLE?>>I DON’T — I’M NOT GOING TO RULE ANYTHING OUT, SENATOR. IF I D I WOULDN’T HAVE THOUGHT THAT — I WOULDN’T HAVE THOUGHT THAT THE LITERAL MEANING OF THAT. >>WOULDN’T IT HAVE SURPRISED YOU IF YOU GOT AN E-MAIL SAYING YOU GOT THAT FROM SOMEBODY SPYING?>>IS THERE SUCH AN E-MAIL, SIR? I DON’T KNOW.>>WE HAVE TO ASK THE CHAIRMAN WHAT HE HAS IN HIS CONFIDENTIAL MATERIAL.>>BUT HERE’S THE — IF YOU’RE REFERRING TO SOMETHING PARTICULAR. HERE’S WHAT I KNOW –>>JUST STOP A MINUTE HERE. REFERENCE TWICE IN YOUR 30 MINUTES AND DON’T TAKE THIS OFF OF HIS TIME. YOU MADE REFERENCE — YOU’RE TALKING ABOUT THE PERIOD OF TIME THAT HE WAS WHITE HOUSE COUNSEL.>>YEP. >>THAT MATERIAL IS AVAILABLE TO EVERYBODY.>>SO THAT — SO THAT BIT OF MATERIAL ABOUT HIM THAT’S MARKED COMMITTEE CONFIDENTIAL IS NOW PUBLIC AND AVAILABLE, IS THAT WHAT YOU’RE SAYING? IF THAT’S WHAT THE CHAIRMAN’S SAYING, WE HAVE A WHOLE NEW SERIES OF QUESTIONS. >>NO, NOT IF — NOT IF IT’S COMMITTEE CONFIDENTIAL, BUT YOU HAVE ACCESS TO IT.>>NOT — SO THAT I –>>DON’T FORGET, 80% OF THE MATERIAL WE’VE GOTTEN FROM THE LIBRARY IS ON THE WEBSITE OF THE JUDICIARY COMMITTEE SO THE PUBLIC HAS ACCESS TO IT. PROCEED. >>I WANT — I WANT JUDGE KAVANAUGH TO HAVE ACCESS SO THAT WE CAN ASK HIM THESE QUESTIONS UNDER OATH AND HE CAN SEE THEM. SO I WOULD ASK THE — WE’LL HAVE ANOTHER ROUND, BUT I WOULD ASK THE CHAIRMAN IF HE MIGHT 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 E-MAILS. BUT I WOULD STATE ON WHAT HAS BEEN PUBLIC –>>LET ME ANSWER THAT FOR YOU. THERE’S ONLY ONE DEMOCRATIC SENATOR THAT ASKED FOR ACCESS TO THAT. SENATOR KLOBUCHAR GOT IT. IF YOU WERE INTERESTED IN IT, YOU COULD HAVE BEEN ASKING EVER SINCE AUGUST 25th, I BELIEVE. >>WE’VE BEEN ASKING TO HAVE THAT — THOSE MADE PUBLIC. I DON’T — I’M NOT INTERESTED IF I SEE THIS IN A CLOSED ROOM WHERE I CAN’T TALK ABOUT IT. I WANT JUDGE KAVANAUGH TO SEE THE E-MAILS WHICH CAME FROM MR. MIRANDA AND –>>GIVE US A CITATION OF THE DOCUMENTS AND WE’LL GET THEM FOR YOU.>>THAT TESTIMONY UP THERE IS TRUE. 100%.>>CAN SOMEBODY READ IT? I CAN’T SEE IT.>>OF COURSE, IT WOULD BE HELPFUL IF WE ALLOWED THE NATIONAL ARCHIVES TIME TO COMPLETE THEIR REVIEW.>>I JUST WANT TO REASSURE YOU, SENATOR, BECAUSE YOU’RE ASKING IMPORTANT QUESTIONS. I WANT TO REASSURE YOU THAT WHAT YOU’VE GOT UP ON THE BOARD IS 100% ACCURATE.>>CAN SOMEBODY MOVE IT SO WE CAN SEE IT HERE?>>I AM CONCERNED BECAUSE THERE IS EVIDENCE THAT MR. MIRANDA PROVIDE YOU WITH MATERIALS THAT WERE STOLEN FROM ME. AND THAT WOULD CONTRADICT YOUR PRIOR TESTIMONY. IT’S ALL TOO CLEAR FROM PUBLIC E-MAILS, THAT YOU HAD REASON TO BELIEVE MATERIALS WERE OBTAINED INAPPROPRIATELY AT THE TIME. MR. CHAIRMAN, THERE ARE AT LEAST SIX DOCUMENTS YOU CONSIDER COMMITTEE CONFIDENTIAL THAT ARE DIRECTLY RELATED TO THIS. JUST LIKE THE THREE DOCUMENTS I SHARED THAT ARE ALREADY PUBLIC. THESE OTHER SIX CONTAIN NO PERSONAL INFORMATION, NO PRESIDENTIAL RECORDS, RESTRICTED MATERIAL. THERE IS SIMPLY NO REASON THEY CAN’T BE MADE PUBLIC. I HOPE THEY WILL BE BEFORE THIS NEXT ROUND. YOU KNOW, IT IS DIFFICULT WHEN TO ASK A QUESTION, I HAVE TO ASK THE REPUBLICANS, WILL YOU ALLOW ME TO ASK A QUESTION? I CERTAINLY NEVER DID THAT WHEN I WAS CHAIRMAN. NOW, I’D ASKED YOU IN 2006 WHETHER YOU’VE SEEN ANY DOCUMENTS RELATING TO PRESIDENT OBAMA’S NSA WARRANTLESS WIRETAPPING PROGRAM OR WHETHER YOU HEARD ANYTHING ABOUT IT. YOU ANSWERED THAT YOU LEARNED ABOUT IT WITH THE REST OF US IN DECEMBER 2005 WHEN “THE NEW YORK TIMES” REPORTED IT. I KNOW IT’S BEEN 12 YEARS. HERE’S A VIDEO OF YOUR SWORN TESTIMONY. SHOULD BE ON THE TV SCREENS. >>DOCUMENTS RELATING TO THE PRESIDENT’S NSA WARRANTLESS WIRETAPPING PROGRAM?>>SENATOR, I LEARNED OF THAT PROGRAM WHEN THERE WAS A “NEW YORK TIMES” STORY WHERE THE REPORTS OF THAT PROGRAM WHEN THERE WAS A “NEW YORK TIMES” STORY THAT CAME OVER THE WIRE, I THINK ON A THURSDAY NIGHT IN MID-DECEMBER OF LAST YEAR. >>YOU HAVE NOT SEEN ANYTHING OR HAD YOU HEARD ANYTHING ABOUT IT PRIOR TO “THE NEW YORK TIMES” ARTICLE?>>NO. >>NOTHING AT ALL?>>NOTHING AT ALL. >>MR. CHAIRMAN, CAN I — MAY I –>>CAN I –>>CAN I, AGAIN, DON’T TAKE THIS TIME AWAY FROM HIM. NOW, AS FAR AS I KNOW IN 15 HEARINGS, SO I’M GOING TO READ SOMETHING IN JUST A MINUTE, BUT PREFACE IT WITH THIS, AS FAR AS I KNOW IN 15 HEARINGS THAT I’VE BEEN INVOLVED IN OF SUPREME COURT JUSTICES, THERE’S NEVER BEEN SUCH A VIDEO SHOWN. SO, SINCE THIS IS PRESS DEN SHALL, 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 A VIDEO PROVIDED BY THE NOMINEE HIMSELF IN RESPONSE TO THE SENATE QUESTIONNAIRE. I’VE BEEN ASSURED THAT THE VIDEO IS FROM JUDGE KAVANAUGH’S SUMMATION TO THE COMMITTEE. BASED ON THIS ASSURANCE, WE’VE ALLOWED THIS VIDEO TO BE SHOWN. I WANT TO EMPHASIZE I EXPECT THAT 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’S WHY I INSIST JUDGE KAVANAUGH HAVE THE OPPORTUNITY BEFORE HE ANSWERS THIS QUESTION IF REQUEST ANY ADDITIONAL VIDEO BE PLAYED TO PROVIDE APPROPRIATE CONTEXT. I WILL ASK YOU, JUDGE KAVANAUGH, DO YOU BELIEVE MORE CONTEXT IS NEEDED TO BE ABLE TO ADDRESS THE QUESTION?>>I DON’T THINK EYE HEARD THE QUESTION YET BUT I’LL LET YOU KNOW WHEN I HEAR THE QUESTION.>>LET ME ASK YOU THIS. I’LL REPEAT THE QUESTION I ASKED BEFORE. YOU SAID YOU HEARD ABOUT THIS WITH THE REST OF US IN DECEMBER 2005. UL SAID ON THERE 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 IS BEFORE THE — SEVERAL MONTHS BEFORE “THE NEW YORK TIMES” ARTICLE, JOHN HUGH ISSUED A MEMO ON SURVEILLANCE OF THE WHITE HOUSE THAT HELPED FORM THE LEGAL UNDERPINNINGS OF THE NSA WARRANTLESS WIRETAPPING PROGRAM. WHEN YOU WERE IN THE WHITE HOUSE IN 2001, DID YOU EVER WORK WITH JOHN ON THE CONSTITUTIONAL IMPLICATIONS OF A WARRANTLESS SURVEILLANCE PROGRAM?>>WE’RE TALKING ABOUT A LOT OF DIFFERENT THINGS HERE, SENATOR. >>A WARRANTLESS SURVEILLANCE PROGRAM. >>THAT’S TALKING ABOUT A LOT OF DIFFERENT THINGS. SO THAT WHAT YOU ARE ASKING ABOUT RIGHT THERE WAS THE SPECIFIC — WHAT PRESIDENT OBAMA CALLED THE TERRORIST SURVEILLANCE PROGRAM. THAT WAS HIS NAME FOR IT.>>WHICH IS A WARRANTLESS SURVEILLANCE PROGRAM. >>ALONG WITH MANY OTHERS. AND YOU WERE ASKINGMY ABOUT THE TERRORIST SURVEILLANCE PROGRAM, TSP, I THINK YOU CALLED IT. THAT STORY WAS BROKEN, THAT TESTIMONY IS 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 STILL REMEMBER MY EXACT REACTION WHEN I READ THAT STORY. AND THEN THE PRESIDENT THAT SATURDAY, I BELIEVE, DID A LIVE RADIO ADDRESS TO EXPLAIN TO THE COUNTRY WHAT THAT PROGRAM WAS ABOUT. THERE WAS A HUGE CONTROVERSY. SO, EVERYONE WAS THEN WORKING ON GETTING THE SPEECH TOGETHER. YOU ASKED ME IF I HAD LEARNED ABOUT IT BEFORE THEN. I SAID NO. THAT’S ACCURATE.>>WHEN YOU WERE IN THE WHITE HOUSE, DID YOU EVER WORK WITH JOHN YU ON THE CONSTITUTIONAL IMPLICATIONS OF ANY WARRANTLESS SURVEILLANCE PROGRAM?>>I CAN’T — I CAN’T RULE THAT — RIGHT IN THE WAKE OF SEPTEMBER 11th, IT WAS ALL HANDS ON DECK ON ALL FRONTS. THEN WE WERE FARMING OUT ASSIGNMENTS. WE WERE ALL INVOLVED — ON SEPTEMBER 12th WHEN WE CAME IN — LET’S BACK UP. ON SEPTEMBER 12th WHEN WE CAME INTO THE WHITE HOUSE, IT WAS — YOU KNOW, WE HAVE TO WORK ON EVERYTHING. SO THEN OVER TIME PEOPLE FIGURED OUT WHAT ISSUES THEY WERE GOING TO WORK ON. THE AIRLINE BILL THAT I WAS UP HERE ON SEPTEMBER 20th WHEN PRESIDENT OBAMA SPOKE TO CONGRESS THAT NIGHT, AS YOU RECALL. AFTER THAT WE WERE IN THE MEETING ROOM TOGETHER, YOU AND I AND OTHERS, WORKING ON THE AIRLINE BILL. THERE ARE ALL SORTS OF OTHER THINGS GOING ON. THE PATRIOT ACT WAS GOING ON.>>I KNOW. I WAS INVOLVED WITH ALL OF THOSE.>>YES, I KNOW. >>BUT WHAT I WANT TO KNOW, DID YOU EVER RAISE QUESTIONS ABOUT WARRANTLESS SURVEILLANCE?>>I CAN’T RULE ANYTHING OUT. THERE WAS SO MUCH GOING ON IN THE WAKE OF SEPTEMBER 11th, SEPTEMBER, AS YOU RECALL UP HERE, TOO, BUT IN THE WHITE HOUSE IN PARTICULAR AND IN THE COUNSEL’S OFFICE IN PARTICULAR. WE HAD EIGHT LAWYERS IN THERE, EIGHT OR NINE, AS I RECALL. THERE WERE SO MANY ISSUES TO CONSIDER FOR THE PRESIDENT AND FOR THE LEGAL TEAM AND THOSE ISSUES — LIKE I SAID FOR PRESIDENT BUSH EVERY DAY FOR THE NEXT SEVEN YEARS WAS SEPTEMBER 12, 2001. >>FOR A LOT OF US IT WAS. >>YES.>>CHAIRMAN, I SENT A LETTER TO YOU, ALONG WITH SENATORS FEINSTEIN AND DURBIN, ASKING DOCUMENTS RELATED TO THIS ISSUE PUBLIC. WITHOUT IT BEING PUBLIC, IT’S NOT FAIR TO ME AND IT’S NOT FAIR TO JUDGE KAVANAUGH THAT I CAN’T HAND HIM THE ACTUAL DOCUMENTS, WHICH I THINK WOULD REFRESH HIS MEMORY. AND I WOULD ASK AGAIN, I MIGHT LOOK AT THAT MR. MY NEXT TERM, CAN WE MAKE THOSE PUBLIC?>>YOU TELL US WHAT DOCUMENTS YOU WANT AND I’LL MAKE THEM AVAILABLE TO YOU, BUT I CAN’T SAY THEY CAN BE MADE PUBLIC. JUST AS I SAID LAST YEAR DURING JUSTICE GORSUCH’S CONFIRMATION, I PUT A PROCESS IN PLACE THAT WILL ALLOW MY COLLEAGUES TO OBTAIN THE PUBLIC RELEASE OF CONFIDENTIAL DOCUMENTS FOR USE DURING THE HEARING. ALL I ASK IS MY 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 KLOBUCHAR SECURED THE RELEASE OF FOUR DOCUMENTS THIS YEAR. IF MY COLLEAGUES TRULY BELIEVE OTHER COMMITTEE CONFIDENTIAL DOCUMENTS SHOULD HAVE BEEN MADE PUBLIC, THEY NEVER TOLD ME ABOUT THEM. SO, LET’S — LET US KNOW WHAT YOU WANT AND THEN YOU CAN GO AHEAD AND WE’LL GET THEM FOR YOU. >>I WANT THE SAME THING I REQUESTED ON AUGUST 16th BECAUSE IT’S DIRECTLY RELEVANT OF JUDGE KAVANAUGH’S TESTIMONY. DIRECTLY RELEVANT TO HIS — TO THE QUESTIONS I’VE BEEN ASKING HERE. DIRECTLY RELEVANT TO HIS OWN E-MAILS WITH JOHN YU. SO, I WOULD — BEFORE MY NEXT TURN, WE COULD TAKE A LOOK AT THAT.>>WE’LL GET THEM FOR YOU FOR YOUR NEXT TURN TOMORROW.>>NOW, YOU SAID EVERYONE AGREES — THE PRESIDENT UNFETTERED, UNCHECKED POWER TO PARDON EVERY VIOLATOR OF EVERY FEDERAL LAW. COULD A PRESIDENT ISSUE A PARDON IN EXCHANGE FOR A BRIBE? YES OR NO.>>SENATOR, I THINK THAT QUESTION HAS BEEN LITIGATED BEFORE. I DON’T WANT TO COMMENT ON THE PRESIDENT –>>LET ME ASK YOU THIS. >>THERE ARE A COUPLE THINGS INVOLVED IN THAT QUESTION. ONE IS WHAT’S THE SCOPE OF — WHAT’S THE EFFECT OF THE PARDON AND THE OTHER QUESTION IS, CAN YOU BE SEPARATELY CHARGED WITH THE BRIBERY CRIME, THE BRIBER AND BRIBEE. THOSE ARE TWO DISTINCT QUESTIONS. >>IN THAT, MR. — CHAIRMAN, I GOT ERUPTED AN AWFUL LOT. I JUST WANT TO FINISH THIS QUESTION. >>BUT I MADE SURE IF THE TIMER DIDN’T TREAT — GIVE HIM ANOTHER MINUTE. >>THANK YOU.>>GOD BLESS YOU. I’LL 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’S A QUESTION I HAVE NOT WRITTEN ABOUT. IT’S A QUESTION THAT, THEREFORE, IS A HYPOTHETICAL QUESTION THAT I CAN’T BEGIN TO ANSWER IN THIS CONTEXT AS A SITTING JUDGE AND NOMINEE TO THE SUPREME COURT. >>AND THE OTHER HALF OF THAT IS THE OBVIOUS ONE, DOES A PRESIDENT HAVE THE ABILITY TO PARDON SOMEBODY IN EXCHANGE FOR A PROMISE FROM THAT PERSON THEY WOULDN’T TESTIFY AGAINST HIM?>>SENATOR, I’M NOT GOING TO ANSWER HYPOTHETICAL QUESTIONS OF THAT SORT. THERE’S A GOOD REASON FOR IT. WHEN WE GET — WHEN JUDGES DON’T — WHEN WE DECIDE, WITH HE GET BRIEFS AND ARGUMENTS TO THE PARTIES, WE HAVE A RECORD, WE HAVE AN APPENDIX WITH ALL THE INFORMATION, WE HAVE AMICUS BRIEFS. I NEVER DECIDE ANYTHING ALONE. I’M ON A PANEL OF THREE. AND IF I’M CONFIRMED TO THE SUPREME COURT, I’D BE ON A TEAM OF NINE.>>THANK YOU, MR. CHAIRMAN. I HOPE FOR THE SAKE OF THE COUNTRY, THAT REMAINS A HYPOTHETICAL QUESTION.>>AND SINCE I GAVE YOU AN EXTRA MINUTE, I’M NOT GOING TO LET YOU RESERVE THE 25 SECONDS.>>I’M DONE. >>SENATOR GRAHAM.>>THANK YOU VERY MUCH. JULY THE 21st, 1993, I CERTAINLY DON’T WANT YOU TO HAVE TO LAY OUT A TEST HERE IN THE ABSTRACT WHICH MIGHT DETERMINE WHAT YOUR VOTE OR TEST MAY BE IN A CASE. YOU HAVE YET TO SEE THAT MAY WELCOME BEFORE THE SUPREME COURT. THAT WAS WISE COUNSEL BY SENATOR LEAHY IN THE GINSBURG CONFIRMATION. VERY DIRECTLY, DID YOU EVER KNOWINGLY PARTICIPATE IN STEALING ANYTHING FROM SENATOR LEAHY OR ANY OTHER SENATOR?>>NO.>>DID YOU EVER KNOW THAT YOU WERE DEALING WITH ANYTHING THAT WAS STOLEN PROPERTY?>>NO. >>AS TO THE TERRORIST SURVEILLANCE PROGRAM, DID YOU HELP CREATE THIS PROGRAM?>>NO.>>DID YOU GIVE LEGAL ADVICE ABOUT IT?>>NO. >>THANK YOU. >>WE’RE REFERRING TO THE SAME PROGRAM I WAS –>>YES, THE ONE THE ARTICLE WAS ABOUT. SO, A BIT OF A RUN-THROUGH HERE. YOU’RE PROBABLY GOING TO GET 55 VOTES, I DON’T KNOW, 54 TO 56, 57. I DON’T KNOW WHAT THE NUMBER WILL BE. THERE ARE 11 UNDECIDED SENATORS BEFORE THE HEARING. THREE OF THEM ARE REPUBLICANS. I LIKE YOUR CHANCES. EIGHT OF THEM ARE DEMOCRAT. YOU’RE IN PLAY WITH ABOUT FIVE OR SIX OF THEM. I JUST WANT YOU AND YOUR FAMILY TO KNOW THAT 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 WE LIVE IN. AND I WANT TO GIVE YOU A CHANCE TO SAY SOME THINGS TO THE PEOPLE THAT HAVE ATTENDED THIS HEARING. I THINK THERE’S A FATHER OF A PARKLAND STUDENT WHO WAS KILLED. I THINK THERE’S A MOTHER OF A CHILD WHO HAS GOT TERRIBLE HEALTH CARE PROBLEMS. THERE ARE MANY OTHER PEOPLE HERE WITH PERSONAL SITUATIONS. WHAT WOULD YOU LIKE TO SAY TO THEM, IF ANYTHING, ABOUT YOUR JOB AS A SUPREME COURT JUSTICE?>>SENATOR, I UNDERSTAND THE REAL WORLD EFFECTS OF OUR DECISIONS. IN MY JOB AS A JUDGE FOR THE LAST 12 YEARS, I’VE GONE OUT OF MY WAY IN MY OPINIONS AND IN ORAL ARGUMENTS, IF YOU LISTEN TO ORGANIZE ARGUMENTS, TO MAKE CLEAR TO EVERYONE BEFORE ME THAT I UNDERSTAND THE SITUATION, THE CIRCUMSTANCES, THE FACTS. FOR EXAMPLE ARE AS I WAS SAYING TO SENATOR FEINSTEIN EARLIER IN THE HELLER 2 CASE ABOUT THE FACTS IN D.C. AND I WANT TO REASSURE EVERYONE THAT I BASE MY DECISIONS ON THE LAW, BUT I DO SO WITH AN AWARENESS OF THE FACTS AND WITH AN AWARENESS OF THE REAL WORLD CONSEQUENCES. I’VE NOT LIVED IN A BUBBLE AND I UNDERSTAND HOW PASSIONATELY PEOPLE FEEL ABOUT PARTICULAR ISSUES AND I UNDERSTAND HOW PERSONALLY PEOPLE ARE AFFECTED BY ISSUES. AND I UNDERSTAND THE DIFFICULTIES THAT PEOPLE HAVE IN AMERICA. I UNDERSTAND, FOR EXAMPLE — WELL, TO START, I UNDERSTAND THE SITUATION OF HOMELESS PEOPLE BECAUSE I SEE THEM ON A REGULAR BASIS WHEN I’M SERVING MEALS. >>TELL ME ABOUT THAT. WHAT INTERACTION DO YOU HAVE WITH HOMELESS PEOPLE?>>SENATOR, I REGULARLY SERVE MEALS AT CATHOLIC CHARITIES AT TENTH AND G WITH FATHER JOHN INSLER, THE HEAD OF CATHOLIC CHARITIES D.C. I’VE KNOWN HIM SINCE I WAS 10 YEARS OLD, ALTAR BOY. MATTHEW 5, WHEN I WAS HUNGRY, YOU GAVE ME FOOD. THIRST Y YOU GAVE ME DRINK. STRANGER AND YOU WELCOME ME. NAKED, YOU CLOTHE ME. SICK YOU CARED FOR ME. SIX GROUPS. THAT’S NOT EXCLUSIVE BUT THAT’S A GOOD PLACE TO START WITH YOUR CHARITABLE WORKS IN YOUR PRIVATE TIME. >>SO, DESCRIBE THE DIFFERENCE BETWEEN BRETT KAVANAUGH THE MAN AND BRETT KAVANAUGH, THE JUDGE.>>WELL, AS A MAN, I’M TRYING TO DO WHAT I CAN IN COMMUNITY SERVICE, AS A DAD, AS A COACH, AS A VOLUNTEER, AS A TEACHER, AS A HUSBAND. SERVING MEALS TO THE HOMELESS, THE ONE THING YOU KNOW, SENATOR, WE’RE ALL GOD’S PEOPLE. PEOPLE HAVE GOTTEN THERE BECAUSE MAYBE THEY HAVE A MENTAL ILLNESS, MAYBE THEY HAVE A TERRIBLE FAMILY SITUATION, MAYBE THEY DIDN’T HAVE ANYONE TO CARE FOR THEM, MAYBE THEY LOST A JOB AND DIDN’T HAVE ANY FAMILY. EVERY PERSON YOU SERVE MEAL TO AS ME OR BETTER, FRANKLY, BECAUSE THEY’VE — WHAT THEY’VE HAD TO GO THROUGH ON A DAILY BASIS JUST TO GET A MEAL. AND YOU TALK TO THEM. THAT’S THE OTHER THING. WHEN YOU’RE WALKING BY THE STREET, YOU SEE PEOPLE — AND I UNDERSTAND, I’M SURE I’VE DONE THIS — I DON’T WANT TO SOUND BETTER THAN SOMEONE DESCRIBING THIS, BUT YOU DON’T NECESSARILY LOOK, AND YOU DON’T SAY, HOW’S IT GOING. BUT WHEN YOU SERVE MEALS TO PEOPLE, YOU TALK TO THE HOMELESS. AND THEY’RE JUST AS HUMAN AND JUST AS GOOD A PEOPLE AS ALL OF US. WE’RE ALL PART OF ONE COMMUNITY AND SO I THINK ABOUT THAT. I DON’T WANT TO SOUND LIKE I’M — I CAN ALWAYS DO MORE AND DO BETTER. I KNOW I FALL SHORT. BUT FATHER JOHN HAS BEEN A BIG INFLUENCE ON THAT IN THINKING ABOUT OTHERS. SO THAT’S AS A PERSON. I WATCH THE JESUIT ACADEMY. THAT’S A DIFFERENT SITUATION. THOSE ARE BOYS FROM LOW-INCOME FAMILIES, A TUITION-FREE SCHOOL, ONE OF THE 7:30 A.M. TO 7:00 SCHOOLS. I STARTED TUTORING UP THERE BECAUSE I WANTED TO DO SOME MORE TUTORING AND JUST BE INVOLVED MORE. JUDGING IS IMPORTANT, BUT I WANTED TO BE MORE DIRECTLY INVOLVED IN THE COMMUNITY. YOU DO ALL YOUR HOMEWORK THERE, BECAUSE IT WAS A SITUATION YOU DON’T WANT TO GO HOME AND HAVE ANYTHING ELSE TO DO. YOU GET THREE MEALS THERE AND YOU DO YOUR HOMEWORK THERE. AND YOU SEE THESE GREAT KIDS, AND THEY’RE IF A STRUCTURED ENVIRONMENT. AND YOU MAKE AN EFFECT IN THEIR LIVES. LIKE I SAID YESTERDAY, THE TEACHERS AND COACHES THROUGHOUT AMERICA, THEY CHANGE LIVES, AND FOR ME TO BE ABLE TO PARTICIPATE, YOU KNOW, 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, YOU KNOW, IF WE ALL DID THAT MORE, AND I FALL SHORT, TOO, I KNOW, AND I WANT TO DO MORE ON THAT FRONT, BUT YOU CAN MAKE A BIG DIFFERENCE IN PEOPLE’S LIVES. I JUST BRING THAT INTO THE JUDGING. I THINK I JUDGE BASED ON THE LAW, BUT HOW DOES THAT AFFECT ME AS A JUDGE? I THINK FIRST OF ALL 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, AND ONE OF THE THINGS I WAS TAUGHT BY MY MOM BUT ALSO I REMEMBER CHRIS ABEL, MY SIXTH GRADE RELIGION TEACHER, MY FOOTBALL COACH AND BASEBALL COACH, ONE OF HIS — AND HE DROVE ME TO SCHOOL. ONE OF HIS — AND HE WAS AT JESUIT ACADEMY WITH ME, BUT ONE OF HIS QUOTES FROM “TO KILL A MOCKINGBIRD” WAS TO NOT JUDGE OTHERS.>>IS IT FAIR YOUR JOB AS A JUDGE IS NOT SO MUCH TO STAND IN THE SHOES YOU’RE SYMPATHETIC TO BUT STAND IN THE SHOES OF THE LAW?>>YOU’RE IN THE SHOES OF THE LAW BUT AWARE OF THE IMPACTS OF YOUR DECISIONS. THAT’S THE CRITICAL DISTINCTION. YOU CAN’T BE UNAWARE. WHEN YOU WRITE AN OPINION, HOW IS IT GOING TO AFFECT PEOPLE? AND TRY TO EXPLAIN — I THINK — YOU KNOW, EXPLAINING IS SUCH AN IMPORTANT FEATURE. THEN WHEN PEOPLE COME INTO THE COURTROOM AND HOW YOU TREAT LITIGANTS. SO WE’RE ALL FAMILIAR. WE’VE ALL BEEN IN COURTROOMS WHERE THE JUDGE IS ACTING A LITTLE TOO FULL OF BEING A JUDGE. AND TO — WELL, WE’VE ALL BEEN THERE. I TRY NOT TO DO THAT. I CAN’T SAY I’M PERFECT, BUT I TRY TO MAKE SURE THE LITIGANTS UNDERSTAND THAT I GET IT, WHETHER IT’S A CRIMINAL DEFENDANT CASE — WE HAD A PRO SE CASE. PRO SE CASE WHERE A LITIGANT COMES IN AND ARGUES PRO SE IN OUR COURT, WHICH RARELY HAPPENS IN OUR COURT WHERE THE PRO SE ACTUALLY ARGUES. IT WAS A GUY WHO SAID HE HAD BEEN CALLED THE “N” WORD BY A SUPERVISOR. AND HE’S ARGUING PRO SE, AND THE QUESTION IS WHETHER A SINGLE INCIDENCE OF THE “N” WORD CONSTITUTES HARASSMENT UNDER THE CIVIL RIGHTS LAWS. AND I WROTE A SEPARATE OPINION EXPLAINING, YES, A SINGLE INSTANCE OF THE “N” WORD DOES CONSTITUTE A RACIALLY HOSTILE WORK ENVIRONMENT. IN DOING THAT, I EXPLAINED THE HISTORY OF RACISM IN THIS COUNTRY AND HOW THAT WORD — NO OTHER WORD IN THE ENGLISH LANGUAGE SO POWERFULLY OR INSTANTLY CALLS TO MIND OUR COUNTRY’S LONG AND BRUTAL STRUGGLE AGAINST RACISM, I WROTE IN THAT OPINION. AND I CITED “TO KILL A MOCKINGBIRD” IN THAT OPINION, AMONG OTHER THINGS. WHAT I WANTED TO MAKE CLEAR BY BRINGING THIS EXAMPLE UP IS I UNDERSTOOD HIS SITUATION. I TRIED TO UNDERSTAND WHAT THAT WOULD BE LIKE, AND I DECIDED THE CASE BASED ON THE LAW, WHAT I UNDERSTOOD WITH THE PRO SE LITIGANT. THE POINT BEING I ALWAYS TRY TO BE AWARE OF THE FACTS AND CIRCUMSTANCES.>>HAVE YOU EVER MADE A LEGAL DECISION THAT PERSONALLY WAS UPSETTING TO YOU?>>I’M SURE I HAVE, AND THAT’S WHAT JUSTICE KENNEDY TALKED ABOUT IN TEXAS VERSUS JOHNSON. THAT CASE, IN CASE PEOPLE DIDN’T KNOW WHAT I WAS REFERRING TO ON TEXAS VERSUS JOHNSON, THAT WAS THE FLAG BURNING CASE. JUSTICE KENNEDY IS IN THE MAJORITY OF JUSTICE SCALIA, JUSTICE BRANDON AND JUSTICE MARSHALL AND SAYS A LAW AGAINST FLAG BURNING IS UNCONSTITUTIONAL UNDER THE FIRST AMENDMENT. AND THAT OBVIOUSLY TORE JUSTICE KENNEDY — IT REALLY BOTHERED HIM BECAUSE HE’S SUCH A PATRIOT. BUT HE STILL RULED THE WAY HE DID BECAUSE HE READ THE FIRST AMENDMENT TO COMPEL THAT RESULT, AND THAT’S WHY HE WROTE THAT GREAT CONCURRENCE IN THAT CASE. THAT IS SUCH A GREAT MODEL FOR INDEPENDENCE AND A GREAT MODEL, TO YOUR POINT, SENATOR GRAHAM, OF WE FOLLOW THE LAW BUT WE’RE AWARE. YOU’RE A BETTER JUDGE IF YOU’RE AWARE.>>WELL, I JUST WANT TO SAY THIS TO MY COLLEAGUES. EVERYTHING HE SAID, I THINK, HAS BEEN VERIFIED BY THE PEOPLE WHO KNOW HIM THE BEST. I CAN’T SAY’ READ 307 OF YOUR OPINIONS. I CAN TELL YOU WITHOUT HESITATION I HAVE NOT. I DID NOT READ SOTOMAYOR OPINIONS’ OR KAGAN’S WRITINGS. BUT WHAT I CHOSE TO DO WAS LOOK AT THE PEOPLE WHO KNEW THEM THE BEST. I THINK BOB BENNETT, WHO DEFENDED PRESIDENT CLINTON DURING IMPEACHMENT, I KNOW HIM VERY WELL, SAID THAT BREAD IS THE JUDGE’S JUDGE, SOMEONE WHO DOES HIS BEST TO FOLLOW THE LAW RATHER THAN HIS POLICY PREFERENCES. I HAVE YET TO FIND ANYBODY THAT I FIND CREDIBLE, REALLY ANYBODY AT ALL, THAT SUGGESTS YOU WERE 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?>>I’M A REGISTERED — YEAH.>>THE ONLY REASON I’M GLAD TO HEAR YOU SAY THAT, IT MAKES A LOT OF SENSE, GIVEN WHO YOU WORK FOR.>>I HAVEN’T — WELL, I’LL LET YOU FINISH YOUR QUESTION.>>YOU WORK FOR A LOT OF REPUBLICANS, LIKE THE PRESIDENT WAS A REPUBLICAN.>>PRESIDENT BUSH, YES.>>THE STATE OF OUR COUNTRY IS AT STAKE.>>I’LL TELL YOU WHAT I REMEMBER WHEN SHE LEAVES. SO I ASKED ALANA KAGAN ABOUT A STATEMENT BRAD CRAIG MADE. DO YOU KNOW BRAD CRAIG, BY ANY CHANCE?>>I’VE MET HIM. I HAVEN’T SEEN HIM IN MANY YEARS, BUT YES.>>HE WAS ONE OF THE DEFENDERS OF PRESIDENT CLINTON DURING THE IMPEACHMENT HEARING. AND SOMEWHERE IN HERE, I’VE GOT BRAD CRAIG’S STATEMENT ABOUT KAGAN. HERE’S WHAT — KAGAN WAS A PROGRESSIVE IN THE MOLD OF OBAMA HIMSELF. ALANA KAGAN IS CLEARLY A LEGAL PROGRESSIVE AND COMES FROM THE PROGRESSIVE SIDE OF THE SPECTRUM, ACCORDING TO RONALD KLEIN. THE FIRST WAS GREG CRIBB. I HAD AN EXCHANGE WITH JUSTICE KAGAN WHEN SHE WAS THE NOMINEE. I’M NOT TRYING TO TRICK YOU. I DON’T HAVE ANYTHING ON GREG. HE SAID ON MAY 16 YOU’RE LARGELY PROGRESSIVE IN THE MOLD OF OBAMA HIMSELF. DO YOU AGREE WITH THAT? MS. KAGAN: SENATOR GRAHAM, IN MY POLITICAL VIEWS, I’VE BEEN A DEMOCRAT MY WHOLE LIFE. I’VE WORKED FOR TWO DEMOCRATIC PRESIDENTS AND THAT’S WHAT MY VIEWS ARE. SHE WAS ASKED, WOULD YOU TELL ME WHAT YOUR POLITICAL VIEWS ARE? MY POLITICAL VIEWS ARE GENERALLY PROGRESSIVE, WHICH IS TRUE. I REALLY APPRECIATE WHAT SHE SAID, BECAUSE I EXPECT PRESIDENT OBAMA TO GO TO SOMEONE LIKE ALANA KAGAN WHO IS PROGRESSIVE, SHARES HIS GENERAL VIEW OF JUDGING AND HAPPENED TO BE HIGHLY QUALIFIED. SOTOMAYOR. PRESIDENT OBAMA NOMINATES SOTOMAYOR BECAUSE HE WANTS SOMEONE WHOSE POLICY OF JUDGING IS THE SAME AS HIS, WHICH APPLIES THE LAW AND CONSTITUTION PRINCIPLES AND BE READY TO ADOPT THEM TO A MODERN CONTEXT. SO PRESIDENT OBAMA NOMINATED SOTOMAYOR BECAUSE HE WANTED SOMEONE WHOSE PHILOSOPHY OF JUDGING WAS HIS. I EXPECT THAT TO HAPPEN. IF DONALD TRUMP IS PRESIDENT IN 2020, HE’LL BE OUR NEXT PRESIDENT. IF IT’S 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. ALANA KAGAN AND SOTOMAYOR CAME FROM THE PROGRESSIVE WING OF THE JUDGING WORLD AND OF LEGAL THOUGHT. THEY’RE ABSOLUTELY HIGHLY QUALIFIED, GOOD, DECENT PEOPLE, AND THEY GOT — SEE IF I CAN FIND THE VOTE TOTALS — MS. KAGAN GOT 63 VOTES AND SONIA SOTOMAYOR GOT 68. IT’S GOING TO BOTHER ME YOU DON’T GET THOSE NUMBERS, BUT WHAT BOTHERS ME IS SHE GOT 90. ANTHONY KENNEDY GOT 97. ANTONI SCALIA GOT 98. RUTH BADER GINSBERG GOT 96. SO WHAT’S THAT MEAN? BETWEEN THEN AND NOW, ADVISING 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 THURMAN VOTED FOR RUTH BADER GINSBERG, HE DID NOT AGREE WITH HER LEGAL PHILOSOPHY, AND I DOUBT THAT SENATOR LEE AGREED WITH JUSTICE SCALIA. SENATOR LEE VOTED FOR A LOT OF REPUBLICANS. I HAVE VOTED FOR EVERYONE PRESENTED SINCE I HAVE BEEN HERE BECAUSE I FIND THEM TO BE HIGHLY QUALIFIED, COMING FROM BACKGROUNDS I WOULD EXPECT THE PRESIDENT IN QUESTION TO CHOOSE FROM. SO AS TO YOUR QUALIFICATIONS, HOW LONG HAVE YOU BEEN A JUDGE?>>I’VE 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 WE SPEND TIME LOOKING AT THEM?>>YES. I AM VERY PROUD OF MY OPINIONS. AS I MENTIONED, I TELL PEOPLE DON’T JUST READ ABOUT THE OPINIONS, READ THE OPINIONS. I’M VERY PROUD OF THEM.>>YOU WERE NOMINATED BY PRESIDENT TRUMP ON JULY THE 9th, MY BIRTHDAY WHICH I THOUGHT WAS A PRETTY GOOD BIRTHDAY PRESENT FOR SOMEBODY WHO THINKS LIKE I DO, AND I THINK I MAY HAVE SOMETHING TO DO WITH THAT, AT 9:00. BY 9:23, CHUCK SCHUMER SAYS, I OPPOSE JUDGE KAVANAUGH. BY 9:25, SENATOR HARRIS, TRUMP’S SUPREME COURT JUSTICE NOMINEE JUDGE KAVANAUGH REPRESENTS A DIRECT AND FUNDAMENTAL THREAT TO HEALTH CARE OF HUNDREDS OF MILLIONS OF AMERICANS. I OPPOSE HIS NOMINATION. LIZ BOREN AT 9:55. PRESIDENT TRUMP’S CHOICE OF JUDGE IS A CLEAR HOSTILE TO HEALTH CARE FOR MILLIONS. THINKS PRESIDENT TRUMP IS ABOVE THE LAW. BERNIE SANDERS AT 10:18. IF BRETT KAVANAUGH IS CONFIRMED TO THE SUPREME COURT, IT WILL HAVE A PROFOUNDLY NEGATIVE EFFECT ON WORKERS’ RIGHTS, WOMEN’S RIGHTS AND VOTING RIGHTS FOR DECADES TO COME. ALL I CAN SAY, WITHIN AN 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 SOTOMAYOR UP AS HIGHLY QUALIFIED AND WOULD CHALLENGE ANY REPUBLICAN THEIR VOTE AGAINST THEM. YOU LIVE IN UNUSUAL TIMES, AS I DO. YOU SHOULD GET MORE THAN 90 VOTES, BUT YOU WON’T. AND I AM SORRY IT HAS GOTTEN TO WHERE IT HAS. IT’S GOT NOTHING TO DO WITH YOU. IF YOU DON’T MIND, AND YOU DON’T HAVE TO, WHAT DID YOU TELL YOUR CHILDREN YESTERDAY ABOUT THE HEARING?>>THEY DID AS THEY — I’LL TELL THEM WHAT THEY TOLD ME. THEY GAVE ME A BIG HUG AND SAID, GOOD JOB, DADDY. AND MARGARET, BEFORE SHE WENT TO BED, MADE A SPECIAL TRIP DOWN AND GAVE ME A SPECIAL HUG.>>I JUST WISH IF WE COULD HAVE A HEARING WHERE THE NOMINEES’ KIDS COULD SHOW UP. IS THAT ASKING TOO MUCH? SO WHAT KIND OF COUNTRY HAVE WE BECOME? NONE OF THIS HAPPENED JUST A COUPLE YEARS AGO. IT’S GETTING WORSE AND WORSE AND WORSE, AND ALL OF US HAVE AN OBLIGATION TO TRY 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 PLANNED PARENTHOOD VERSUS CASEY, A WOMAN HAS A CONSTITUTIONAL RIGHT, IS DETERMINED BY THE SUPREME COURT AND THE CONSTITUTION TO OBTAIN AN ABORTION UP TO THE POINT OF VIABILITY SUBJECT TO REASONABLE REGULATIONS BY THE STATE AS LONG AS THEY DON’T VIOLATE HER LEGAL RIGHT.>>CAN YOU SIT DOWN WITH FOUR OTHER JUDGES AND OVERRULE ROE V. WADE JUST BECAUSE YOU WANT TO?>>SENATOR, ROE V. WADE IS AN IMPORTANT PRECEDENT OF THE SUPREME COURT.>>DON’T YOU HAVE TO HAVE A CASE? YOU CAN’T JUST — >>YES.>>WHAT ARE YOU DOING FOR LUNCH? LET’S OVERRULE ROE V. WADE. IT DOESN’T WORK THAT WAY, RIGHT?>>I SEE WHAT YOU’RE ASKING, SENATOR. RIGHT, THE WAY CASES COME UP TO US IN THAT CONTEXT OR ANOTHER CONTEXT WOULD BE A LAW IS PASSED — >>CAN I GIVE YOU AN EXAMPLE, BECAUSE I CAN DO THIS QUICKER?>>YES.>>SOME STATE SOMEWHERE OR SOME TOWN SOMEWHERE PASSES A LAW THAT RUNS INTO THE FACE OF ROE. SOMEBODY WILL OBJECT. THEY’LL GO TO LOWER COURTS AND EVENTUALLY IT MIGHT COME UP TO THE SUPREME COURT CHALLENGING THE FOUNDATION’S ROE V. WADE. IT WOULD TAKE SOME LEGISLATIVE ACTION FOR THAT TO HAPPEN, IS THAT CORRECT?>>THAT’S CORRECT.>>IF THERE WAS SUCH AN ACTION BY A STATE OR LOCAL GOVERNMENT CHALLENGING ROE AND IT CAME BEFORE THE SUPREME COURT, WOULD YOU LISTEN TO BOTH SIDES?>>I LISTEN TO BOTH SIDES IN EVERY CASE, SENATOR. I HAVE FOR 12 YEARS, YES.>>WHEN IT COMES TO OVERRULING A LONGSTANDING PRECEDENT OF THE COURT, IS THERE A FORMULA YOU USE? AN ANALYSIS?>>FIRST OF ALL, YOU START WITH THE NOTION OF PRECEDENT, AND AS I’VE SAID TO SENATOR FEINSTEIN IN THIS CONTEXT, THIS IS A PRECEDENT THAT’S BEEN REAFFIRMED MANY TIMES OVER 45 YEARS, INCLUDING IN PLANNED PARENTHOOD VERSUS CASEY WHERE THEY SPECIFICALLY CONSIDERED WHETHER TO OVERRULE AND REAFFIRMED AND APPLIED ALL THE FACTORS THAT APPARENTLY BECAME PRECEDENT ON PRECEDENT IN THIS CONTEXT. BUT YOU LOOK AT — THERE ARE FACTORS YOU LOOK AT WHENEVER YOU’RE CONSIDERING ANY PRECEDENT.>>SO THERE IS A PROCESS IN PLACE THAT THE COURT HAS FOLLOWED FOR A VERY LONG TIME. IS THAT CORRECT?>>THAT IS CORRECT, SENATOR.>>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 OR 30 PEOPLE IN THE COUNTRY TO RUN ALL THE ELECTIONS AND 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?>>I LISTEN TO ALL ARGUMENTS. YOU HAVE AN OPEN MIND. YOU GET THE BRIEFS AND ARGUMENTS AND SOME ARGUMENTS ARE BETTER THAN OTHERS. PRECEDENCE CRITICALLY IMPORTANT. IT’S A FOUNDATION OF OUR SYSTEM BUT YOU LISTEN TO ALL ARGUMENTS.>>WHERE WERE YOU SEPTEMBER 11, 1991?>>INITIALLY I WAS IN MY THEN OFFICE AT THE RMB, BUT AS I RECALL, WHEN THE FIRST BUILDING WAS HIT I WAS IN THE COUNSELOR’S OFFICE IN THE FIRST OFFICE IN THE WEST WING FOR THE NEXT FEW MINUTES. THEN WE WERE ALL TOLD TO GO DOWN TO THE BOTTOM OF THE WEST WING, AND THEN WE WERE ALL EVACUATED AND I THINK THE FLIGHT 93 MIGHT HAVE BEEN HEADING FOR THE WHITE HOUSE, IT MIGHT HAVE BEEN HEADING HERE. SECRET SERVICE, WE WERE BEING HUSTLED OUT, THEN STARTED TO PANIC, STARTED SCREAMING AT US. WE SPRINTED OUT. MY WIFE WAS A FEW STEPS AHEAD OF ME. SHE WAS PRESIDENT BUSH’S PERSONAL AIDE AT THE TIME, AND WE SPRINTED OUT. SHE WAS WEARING A BLACK AND WHITE CHECKED SHIRT, I REMEMBER. WE SPRINTED OUT THE FRONT GATE KIND OF INTO LAFAYETTE PARK. NO iPHONES OR ANYTHING LIKE THAT, BLACKBERRIES, AND OUR CELL PHONES DIDN’T WORK, SO WE WERE JUST KIND OF OUT THERE. I REMEMBER SOMEHOW ENDING UP SEEING ON TV, DOWN ON CONNECTICUT AVENUE THERE WERE TVs OUT AT THE MAYFLOWER HOTEL. I WAS WITH SARAH WRIGHT FROM THE WHITE HOUSE AND I WAS WATCHING, STANDING WITH HER WHEN THE TWO BUILDINGS FELL.>>SO WHEN SOMEBODY SAYS POST-9/11 THAT WE’VE BEEN AT WAR, AND IT’S 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, AND THAT WAS PASSED, OF COURSE, ON SEPTEMBER 14, 2001, THREE DAYS LATER.>>LET’S TALK ABOUT THE LAW IN WAR. IS THERE A BODY OF LAW CALLED THE LAW OF ARMED CONFLICT?>>THERE IS SUCH A BODY, SENATOR.>>IS THERE A BODY OF LAW THAT’S CALLED BASIC CRIMINAL LAW?>>YES, SIR.>>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’RE IN PARIS, DOES THE FOURTH AMENDMENT PROTECT YOU AS AN AMERICAN FROM YOUR OWN GOVERNMENT?>>FROM YOUR OWN GOVERNMENT, YES.>>OKAY. SO IF YOU’RE IN AFGHANISTAN, DO YOUR CONSTITUTIONAL RIGHTS PROTECT YOU AGAINST YOUR OWN GOVERNMENT?>>IF YOU’RE AN AMERICAN IN AFGHANISTAN, YOU HAVE CONSTITUTIONAL RIGHTS AS AGAINST THE U.S. GOVERNMENT. THAT’S LONG SETTLED LAW.>>ISN’T THERE ALSO A LONG SETTLED LAW THAT GOES BACK TO THE EISENTRAGER CASE — I CAN’T REMEMBER THE NAME OF IT. THAT THEY CAN CONSIDER AN ENEMY OF COMBATANTS?>>THEY CAN BE. UNDER SUPREME COURT DECISIONS.>>THERE WAS A SUPREME COURT DECISION THAT SAID THE NUMBER OF AMERICAN CITIZENS THAT WERE TRIED BY NAZIS WERE TRIED, WERE THEY NOT?>>THAT’S CORRECT.>>I THINK A COUPLE WERE EXECUTED.>>YEAH.>>SO IF ANYBODY DOUBTS THERE IS A LONGSTANDING HISTORY IN THIS COUNTRY 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’LL BE TREATED DIFFERENTLY. WHAT’S THE NAME OF A CASE, IF YOU CAN RECALL, THAT GOES AGAINST THE CONCEPT THAT YOU CAN HOLD ONE OF YOUR OWN AS AN ENEMY COMBATANT?>>YES. HOMBE.>>SO YOU HAVE CONSTITUTIONAL RIGHTS BUT YOU DON’T HAVE A CONSTITUTIONAL RIGHT THAT CAN ELABORATE WITH THE ENEMY. THERE IS A BODY OF LAW WELL DEVELOPED BEFORE 9/11 THAT UNDERSTOOD THE DIFFERENCE BETWEEN BASIC CRIMINAL LAW AND THE LAW OF ARMED CONFLICT. DO YOU UNDERSTAND THOSE DIFFERENCES?>>I DO UNDERSTAND. THEY’RE DIFFERENT BODIES OF LAW, OF COURSE, SENATOR.>>IF YOU’RE 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?>>GOOD DAD, GOOD JUDGE — >>GOOD HUSBAND.>>I THINK HE’S GETTING THERE.>>– GOOD HUSBAND.>>THANKS, DIANE. YOU HELPED HIM A LOT. IT WILL BE BETTER FOR YOU TONIGHT.>>I OWE YOU. GOOD SON, I’LL QUICKLY ADD. GOOD FRIEND. I THINK ABOUT THE PILLARS OF MY LIFE, AND THEY ARE BEING A JUDGE, OF COURSE, BEING A TEACHER. I’VE DONE THAT AND EITHER WAY THIS ENDS UP, I’M GOING TO CONTINUE TEACHING. COACHING, AS I MENTIONED, A HUGE PART OF MY LIFE. TRY TO CONTINUE THAT. SARAH KENNEDY ADVISED ME WHEN WE MET, MAKE SURE YOU KEEP COACHING. I’M GOING TO FOLLOW THAT. VOLUNTEERING AND BEING A DAD AND A SON AND A HUSBAND AND BEING A FRIEND. YOU KNOW, I TALKED ABOUT MY FRIENDS YESTERDAY. I DIDN’T REALLY EXPECT — I GOT A LITTLE CHOKED UP TALKING ABOUT MY FRIENDS — >>THAT’S WELL SAID. YOU HAVE TO TIGHTEN IT UP BECAUSE I JUST RAN OUT OF TIME.>>THANK YOU, SENATOR. I COULD GO ON, AS YOU KNOW, BUT I’LL STOP THERE.>>>WE’RE ABOUT READY TO BREAK FOR LUNCH AND IT WILL BE 30 MINUTES. BEFORE I DO THAT, I HAVE LETTERS THAT SENATOR FEINSTEIN ASKED ME TO PUT IN THE RECORD FROM — 70 LETTERS FROM PEOPLE IN OPPOSITION TO YOUR NOMINATION, AND THEN WE ALSO HAVE LETTERS IN SUPPORT OF JUDGE KAVANAUGH 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 IN THE RECORD. AND THEN I WANTED TO EXPLAIN THE EXCHANGE THAT I HAD WITH SENATOR LEAHY JUST SO PEOPLE DON’T THINK THAT’S SOMETHING I DID ON MY OWN. WE HAD PREVIOUSLY SENT OUT A LETTER, AND ONLY SENATOR KLOBUCHAR UP TO THAT POINT HAD TAKEN ADVANTAGE OF THE LETTER, TO BE ABLE TO ASK FOR DOCUMENTS THAT WERE COMMITTEE-CONFIDENTIAL SO THAT THEY COULD USE THEM AT THE HEARING. AND THE ONLY THING I’VE 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, AND IT’S POLICY THAT SENATOR LEAHY, WHEN HE WAS CHAIRMAN OF THE COMMITTEE, FOLLOWED, AND SO THE ONLY COURTESY WAS EXTENDED TO SENATOR LEAHY THE FACT THAT HE DIDN’T MAKE THE REQUEST BY THE TIMELINE THAT WAS IN THE LETTER, WHICH I THINK WAS AUGUST 25th. WE’RE GOING TO ADJOURN FOR 30 MINUTES FOR A LUNCH BREAK, AND I THINK THAT WE’LL BE BACK HERE EXACTLY IN 30 MINUTES. IF NOT, JUDGE KAVANAUGH, WE WILL LET YOUR STAFF KNOW IF IT’S GOING TO BE A LITTLE LATER BECAUSE YOU NEVER KNOW WHAT HAPPENS IN THE UNITED STATES SENATE WHEN YOU HAVE A VOTE.>>>THE CONFIRMATION HEARING FOR BRETT KAVANAUGH WILL CONTINUE. THEY’RE TAKING A BREAK. THEY PLAN TO RETURN IN ABOUT 30 MINUTES OR SO DEPENDING ON HOW LONG THE SCHEDULED VOTE IN THE SENATE GOES. THEY’RE VOTING ON A NOMINATION TO THE SEC TODAY. WE’LL BE SHOWING EACH DAY’S TESTIMONY IN THE EVENING STARTING AT 8:00 P.M. EASTERN TIME. WE’LL HAVE THAT FOR YOU OVER ON CSPAN-2. AND TOMORROW THE CHAIR SAYS HE EXPECTS THE HEARING TO LAST ABOUT FOUR DAYS. MORE QUESTIONING TOMORROW OF THE NOMINEE EXPECTED. THE HEARING WILL BE STARTING UP AGAIN AT 9:30 A.M. EASTERN TIME, AND THEN LATER IN THE WEEK, TESTIMONY FROM OUTSIDE WITNESSES INCLUDING JOHN DEAN, WHO SERVED AS WHITE HOUSE COUNSEL DURING WATERGATE. WHILE THE HEARING IS IN A BREAK. WE’LL TAKE A LOOK AT SOME OF THE QUESTIONING FROM TWO LEADERS OF THE COMMITTEE FROM EARLIER TODAY.>>FOLLOWING UP ON THE WISE WORDS OF SENATOR SASSE YESTERDAY ON SEPARATION OF POWERS, YOUR RECORD BEFORE THE SENATE INCLUDES MORE THAN 10,000 PAGES OF JUDICIAL WRITINGS OVER YOUR DOZEN YEARS. WE HAVE OVER 440,000 PAGES OF E-MAILS AND OTHER RECORDS FROM YOUR LEGAL SERVICE AT THE WHITE HOUSE, AND JUDGE STARR. YOU HAVE WRITTEN EXTENSIVELY ON THE CONSTITUTION, SEPARATION OF POWER AMONG THE THREE BRANCHES. AND A KEY COMPONENT OF THE SEPARATION OF POWERS IS THE INDEPENDENT DUTY FREE. OBVIOUSLY EVERYBODY LEARNS IN EIGHTH GRADE CIVICS ABOUT JUDGES INTERPRETING LAW. THE JUDICIARY MUST CONTINUE TO BE THE LEAST POLITICAL AND THE LEAST DANGEROUS BRANCH. A JUDGE’S SOLE JOB IS TO FIND AND APPLY THE LAW EVENLY AND FAIRLY WITHOUT REGARD TO THE PRESIDENT WHO NOMINATED HIM, THE SENATORS WHO VOTED FOR HIM, THE PARTIES BEFORE HIM AND THE POLITICAL CONSEQUENCES OF HIS JUDICIAL DECISION. SO, JUDGE, LET’S DISCUSS JUDICIAL INDEPENDENCE FROM THE EXECUTIVE BRANCH. NO ONE, NOT EVEN THE PRESIDENT, IS ABOVE THE LAW. SOME OF MY COLLEAGUES HAVE CRITICIZED YOUR VIEWS OR PRESIDENTIAL AUTHORITY SUGGESTING WRONGLY, IN 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 WHETHER YOU HAVE ANY TROUBLE RULING AGAINST THE PRESIDENT WHO APPOINTED YOU AND AGAINST THE EXECUTIVE BRANCH IN ANY CASE BEFORE YOU. YOU PARTLY TALKED ABOUT INDEPENDENCE, BUT APPLY IT SPECIFICALLY TO A RULING AGAINST THE PRESIDENT OR THE EXECUTIVE BRANCH GENERALLY.>>THANK YOU, MR. CHAIRMAN. TO BEGIN WITH, YOU’RE CORRECT. NO ONE IS ABOVE THE LAW IN OUR CONSTITUTIONAL SYSTEM. FEDERALIST 69, HAMILTON MAKES CLEAR ALL THE WAYS THE EXECUTIVE BRANCH IS DESIGNED BY FRAMERS OF THE CONSTITUTION WAS DIFFERENT FROM THE MONARCHY. UNDER OUR SYSTEM OF GOVERNMENT, THE EXECUTIVE BRANCH IS SUBJECT TO THE LAW, SUBJECT TO THE COURT SYSTEM, AND THAT’S AN IMPORTANT PART OF FEDERALIST 69. IT’S AN IMPORTANT PART OF THE CONSTITUTIONAL STRUCTURE. IN GENERAL, SO, TOO, WE AS JUDGES ARE SEPARATE FROM THE CONGRESS. WE ARE NOT SUPPOSED TO BE INFLUENCED BY POLITICAL PRESSURE FROM THE EXECUTIVE OR FROM THE CONGRESS. WE ARE INDEPENDENT. WE MAKE DECISIONS BASED ON LAW, NOT BASED ON POLICY, NOT BASED ON POLITICAL PRESSURE, NOT BASED ON THE IDENTITY OF THE PARTIES NO MATTER WHO YOU ARE IN OUR SYSTEM, NO MATTER WHERE YOU COME FROM, NO MATTER HOW RICH YOU ARE, HOW POOR YOU ARE, NO MATTER YOUR RACE, YOUR GENDER, NO MATTER YOUR STATION IN LIFE, NO MATTER YOUR POSITION IN GOVERNMENT. IT’S ALL EQUAL JUSTICE UNDER LAW. AND AGAIN, LOOK AT OUR EXAMPLES IN HISTORY. I ALWAYS WILL GO BACK TO THE GREAT MOMENTS IN OUR HISTORY WHERE THESE PRINCIPALS WOULD SOUND ABSTRACT IF YOU’RE JUST DESCRIBING THEM WERE ACTUALLY IMPLEMENTED. I GO BACK TO YOUNGSTOWN STEEL. YOU THINK ABOUT IT’S A 6-3 DECISION WHERE THE SUPREME COURT RULES THAT PRESIDENT TRUMAN HAS VIOLATED THE LAW BY SEIZING THE STEEL MILLS. NOW, THIS IS A TIME OF WAR, A TIME OF WAR WHERE LOTS OF AMERICANS WERE KILLED. AND THE SUPREME COURT’S UNDER PRESSURE TO DEFER TO THE PRESIDENT’S WAR EFFORT. AND A 6-3 DECISION, BUT WHAT’S INTERESTING TO ME, JUSTICE CLARK. WE DON’T USUALLY TALK ABOUT JUSTICE CLARK IN THAT DECISION. WHY IS HE IMPORTANT? HE IS IMPORTANT BECAUSE HE WAS APPOINTED BY PRESIDENT TRUMAN TO THE SUPREME COURT. WHAT A MOMENT OF JUDICIAL INDEPENDENCE THERE TO RULE IN THAT CASE. YOU THINK ABOUT JUSTICE JACKSON WHO HAD BEEN WORKING FOR PRESIDENT ROOSEVELT AND THEN HE DESCENTS IN THE CORA MATSU CASE. HE STANDS UP AND SAYS LETTING RACISM LIKE THIS IS LIKE LETTING A LOADED WEAPON LIE AROUND. THE SENSE AGAINST PRESIDENT ROOSEVELT’S DECISION. JUSTICE JACKSON’S — JUSTICE JACKSON’S CONCURRENCE OF WHAT HAS BECOME THE LAW IN THAT THREE-PART TEST, CATEGORY 1, CATEGORY 2, CATEGORY 3. AGAIN, HE WRITES THE CONCURRENCE IN YOUNGSTOWN. WHY IS THAT A MOMENT OF JUDICIAL INDEPENDENCE? HE HAD TAKEN CONCURRENCE WITH THAT ONE. HE WORKED IN THE ROOSEVELT ADMINISTRATION, BUT WHEN HE’S A JUDGE, HE SEES IT DIFFERENTLY AS A JUDGE. WHAT ABOUT THE UNITED STATES VERSUS BERGER? A JUDGE WRITES THE OPINION UNANIMOUS, MOMENTS OF JUDICIAL INDEPENDENCE. IT’S RESISTING PUBLIC PRESSURE, POLITICAL PRESSURE. IT’S TREATING EVERYONE EQUALLY NO MATTER WHERE YOU ARE, WHAT STATION. WHEN I WAS A — BECAME A JUDGE ON THE D.C. CIRCUIT, I HAD A CASE CALLED HOMDON VERSUS THE UNITED STATES. [ INAUDIBLE YELLING ]>>IF YOU ARE A MAN OF INTEGRITY, YOU WILL BACK OUT. [ INAUDIBLE YELLING ]>>SO IN THE HOMDON CASE, HOMDON IS ONE OF BIN LADEN’S ASSOCIATES. YOU’LL NEVER HAVE A NOMINEE — >>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 LISTENING. THIS IS YOUR OPPORTUNITY TO SPEAK TO THE AMERICAN PEOPLE AND FOR THEM TO MAKE A JUDGMENT ABOUT IT. IF THEY WANT TO AFFECT WHAT THE OTHER 300 MILLION PEOPLE HEAR FROM YOU, THEN THAT’S JUST TOO BAD. YOU PROCEED NOW.>>HOMDON’S IS ONE OF BIN LADEN’S ASSOCIATES INVOLVED BEFORE SEPTEMBER 11, WORST ATTACK EVER ON AMERICAN SOIL. HE’S PROSECUTED BEFORE A MILITARY COMMISSION, SIGNATURE PROSECUTION BEFORE THE BUSH ADMINISTRATION. COMES TO THE D.C. CIRCUIT. I’M ON THE PANEL. I WRITE THE OPINION, SAYING THAT HIS MILITARY COMMISSION PROSECUTION IS UNCONSTITUTIONAL, VIOLATES EXPO FACTO PRINCIPLES. YOU’LL NEVER HAVE A NOMINEE WHO HAS RULED FOR A MORE UNPOPULAR DEFENDANT THAN RULING FOR SALIM HOMDON. WHY DID I DO THAT IN THAT CASE? WHY DID I RULE FOR SOMEBODY THAT WAS INVOLVED IN SEPTEMBER 11? IT’S BECAUSE THE LAW COMPELLED IT, JUST LIKE TEXAS SHOWED UP IN THE TEXAS VERSUS JOHNSTON CASE. WE DON’T MAKE DECISIONS BASED ON WHO THE PEOPLE ARE, POLICY PREFERENCES, WE RULE BASED ON THE LAW. IT MEANS YOU’RE NOT A PRO — AS I SAID YESTERDAY, YOU’RE NOT A PRO PLAINTIFF OR PRO DEFENSE JUDGE, NOT A PRO PROSECUTION OR PRO DEFENSE JUDGE. I’M A PRO LAW JUDGE, AND I’VE RULED FOR PARTIES BASED ON WHETHER THEY HAVE THE LAW ON THEIR SIDE. THAT’S PART OF BEING AN INDEPENDENT JUDGE, IS RULING FOR THE PARTY NO MATTER WHO THEY ARE SO LONG AS THE PARTY IS RIGHT. IF YOU WALK INTO MY COURTROOM AND YOU HAVE THE BETTER LEGAL ARGUMENTS, YOU WILL WIN.>>I WANTED TO TALK TO YOU THIS MORNING ABOUT GUNS AND GO BACK TO ROE V. WADE, IF I MIGHT. MY OFFICE WROTE THE ASSAULT WEAPONS LEGISLATION IN 1993. IT WAS LAW FROM ’94 TO 2004. IT ESSENTIALLY PROHIBITED THE TRANSFER, SALE AND MANUFACTURE OF ASSAULT WEAPONS. IT DID NOT AT THE TIME AFFECT POSSESSION. I HAPPEN TO BELIEVE THAT IT DID WORK AND THAT IT WAS IMPORTANT. AND I’VE WATCHED CASE AFTER CASE, AND I THINK I MENTIONED EARLIER SCHOOL SHOOTINGS, WHICH ARE JUST — I NEVER THOUGHT THIS WOULD HAPPEN IN OUR COUNTRY, THAT SOMEONE WOULD BRING A SEMIAUTOMATIC ASSAULT WEAPON INTO A SCHOOL AND JUST MOW DOWN CHILDREN AND STAFF. AND SO I’VE BEEN VERY INTERESTED IN YOUR THINKING ON ASSAULT WEAPONS. YOU SPECIFICALLY ARGUED THAT THE D.C. ASSAULT WEAPONS BAN WAS UNCONSTITUTIONAL, AND I THINK BECAUSE YOU SAID THESE WEAPONS WERE IN COMMON USE. WHAT DID YOU BASE YOUR CONCLUSION THAT ASSAULT WEAPONS ARE IN COMMON USE, AND WHAT EVIDENCE OR STUDY 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 AND APPRECIATE THAT. I FACED A DECISION WHERE, AS IN EVERY OTHER DECISION JUST ABOUT ON THE D.C. CIRCUIT, I HAD TO FOLLOW A PRECEDENT, THE PRECEDENT OF THE SUPREME COURT. I DON’T GET TO PICK AND CHOOSE WHICH SUPREME COURT PRECEDENCE I GET TO FOLLOW. I FOLLOW THEM ALL. AND SO IN THE SECOND AMENDMENT CONTEXT, THE SUPREME COURT IN THE HELLER DECISION, WRITTEN BY JUSTICE SCALIA, HAD HELD THAT THERE WAS AN INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS. AND THEN IN EXPLAINING WHAT THAT MEANT AND WHAT EXCEPTIONS WOULD BE ALLOWED TO THAT RIGHT, JUSTICE SCALIA’S OPINION FOR THE COURT IN PART 3 OF THE OPINION WENT THROUGH, THIS DOES NOT MEAN THAT THERE IS NO GUN REGULATION PERMISSIBLE. SO THAT WAS AN IMPORTANT PART OF THE OPINION, PART 3 OF THE SUPREME COURT’S OPINION. WHERE IT PRE-IDENTIFIED A NUMBER OF EXCEPTIONS THAT WOULD BE ALLOWED. FELONY POSSESSION LAWS, CONCEALED CARRY, LAWS POSSESSION OF MENTALLY ILL, POSSESSION IN SCHOOLS, POSSESSION IN CERTAIN KINDS OF BUILDINGS. HE PRE-IDENTIFIED THAT. AS TO THE WEAPONS, THE WAY I UNDERSTOOD WHAT HE SAID THERE AND WHAT WAS SAID IN THE McDONALD’S CASE LATER WAS THAT DANGEROUS AND UNUSUAL WEAPONS COULD BE PROHIBITED. AND WHAT HE REFERRED TO SPECIFICALLY IS MACHINE GUNS COULD BE PROHIBITED. SO IT’S VERY IMPORTANT TO RECOGNIZE UNDER THE HELLER DECISION, MACHINE GUNS CAN BE PROHIBITED.>>THEY WERE IN THE FIREARMS ACT A LONG TIME AGO. THEY HAD BEEN PROHIBITED.>>YES, SENATOR. JUSTICE SCALIA’S OPINION DID NOT DISTURB THAT LONGSTANDING REGULATION, IN FACT, SPECIFICALLY REAFFIRMED THAT MACHINE GUNS COULD BE PROHIBITED. THE COURT IN HELLER, THE SUPREME COURT, UPHELD — OR STRUCK DOWN A D.C. BAN ON HANDGUNS, MOSTLY WHICH ARE SEMIAUTOMATIC.>>LET ME INTERRUPT YOU BECAUSE I THINK WE’RE ON 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 JUSTICE SCALIA’S OPINION, TO USE THAT PHRASE, I THINK THE NEXT SENTENCE OF THE OPINION TALKED ABOUT DANGEROUS AND UNUSUAL WEAPONS, AND THE COURT IN HELLER ITSELF, THE SUPREME COURT, STRUCK DOWN A D.C. BAN ON HANDGUNS. NOW, MOST HANDGUNS ARE SEMIAUTOMATIC. THAT’S SOMETHING THAT NOT EVERYONE APPRECIATES. MOST HANDGUNS ARE SEMIAUTOMATIC. THE QUESTION CAME BEFORE US OF SEMIAUTOMATIC RIFLES, AND THE QUESTION WAS, CAN YOU DISTINGUISH, AS A MATTER OF PRECEDENT — AGAIN, THIS IS ALL ABOUT PRECEDENT FOR ME. I’M TRYING TO READ WHAT THE SUPREME COURT SAYS, AND IF YOU READ THE McDONALD CASE, I CONCLUDED THAT IT COULD NOT BE DISTINGUISHED AS A RULE 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, SO THAT SEEMED TO FIT COMMON USE AND NOT BEING A DANGEROUS AND UNUSUAL WEAPON. THAT WAS THE BASIS OF MY DESCENT. IN A NUTSHELL, THE BASIS OF MY DESCENT WAS I WAS TRYING TO FOLLOW STRICTLY AND CAREFULLY THE PRECEDENT.>>YOU’RE SAYING THE NUMBERS DETERMINE COMMON USE? COMMON USE IS AN ACTIVITY. IT’S NOT COMMON STORAGE OR POSSESSION, IT’S USE. SO WHAT YOU SAID WAS THAT THESE WEAPONS ARE COMMONLY USED. THEY’RE NOT.>>THEY’RE WIDELY POSSESSED IN THE UNITED STATES, SENATOR, AND THEY ARE USED AND POSSESSED, BUT THE QUESTION IS ARE THEY DANGEROUS AND UNUSUAL? THEY’RE CERTAINLY DANGEROUS, ALL WEAPONS ARE DANGEROUS. ARE THEY UNUSUAL? AND GIVEN HOW PREVALENT THEY ARE IN THE UNITED STATES, IT SEEMED UNDER JUSTICE SCALIA’S TEST, AND IF I LOOK AT THE MAJORITY OF THE OPINION IN McDONALD, THE SAME THING. I WANT TO REITERATE THE SUPREME COURT MADE CLEAR MACHINE GUNS CAN BE BANNED.>>I’M TALKING ABOUT THE HELLER CASE. LET ME BE SPECIFIC. YOU SPECIFICALLY ARGUED THAT IT WAS UNCONSTITUTIONAL TO DEFEND ASSAULT WEAPONS BECAUSE THEY ARE — TO BAN ASSAULT WEAPONS BECAUSE THEY ARE IN COMMON USE. AND THAT, I BELIEVE, WAS YOUR DISSENT IN THE CASE.>>YES, AND I WAS REFERRING TO SOME KINDS OF SEMIAUTOMATIC RIFLES THAT ARE BANNED BY D.C. AND ARE WIDELY OWNED IN THE UNITED STATES. AND THAT SEEMS TO BE THE TEST THAT THE SUPREME COURT HAD SET FORTH IN THE HELLER AND McDONALD CASES. IN OTHER WORDS, IF ANOTHER TYPE OF FIREARM IS WIDELY OWNED IN THE UNITED STATES — NOW, WHETHER I AGREE WITH THAT TEST OR NOT WAS NOT THE ISSUE BEFORE ME. I HAVE TO FOLLOW THE PRECEDENT OF THE SUPREME COURT AS IT’S WRITTEN, AND THAT’S WHAT I TRIED TO DO IN THAT CASE. IT’S A VERY 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 A CITY PLAGUED BY GUN VIOLENCE AND GANG VIOLENCE AND DRUG VIOLENCE, SO I FULLY UNDERSTAND, AS I EXPLAINED IN THE OPINION, THE IMPORTANCE OF THIS ISSUE. I SPECIFICALLY REFERENCED THAT POLICE CHIEF KATHY WANEIR’S GOALS OF REDUCING GUN VIOLENCE WAS SOMETHING I APPLAUDED BUT I HAD TO FOLLOW THE PRECEDENCE OF THE SUPREME COURT, AND AS I READ IT, THAT’S WHAT IT SAID.>>HOW DO YOU RECONCILE WHAT YOU JUST SAID WITH THE HUNDREDS OF SCHOOL SHOOTINGS USING ASSAULT WEAPONS THAT HAVE TAKEN PLACE IN RECENT HISTORY? HOW DO YOU RECONCILE THAT?>>SENATOR, OF COURSE THE VIOLENCE IN THE SCHOOLS IS SOMETHING WE ALL DETEST AND WANT TO DO SOMETHING ABOUT, AND THERE ARE LOTS OF EFFORTS, I KNOW, UNDERWAY TO MAKE SCHOOLS SAFER. I KNOW AT MY GIRLS’ SCHOOL THEY DO A LOT OF THINGS NOW THAT WERE DIFFERENT THAN THEY DID JUST A FEW YEARS AGO IN TERMS OF TRYING TO HARDEN THE SCHOOL AND MAKE IT SAFER FOR EVERYONE. GUNS — HANDGUNS AND SEMIAUTOMATIC RIFLES ARE WEAPONS USED FOR HUNTING AND SELF-DEFENSE. BUT AS YOU SAY, SENATOR, YOU RIGHTLY SAY THEY’RE USED IN A LOT OF VIOLENT CRIME AND CAUSE A LOT OF DEATHS. HANDGUNS ARE USED IN LOTS OF CRIMES THAT RESULT IN DEATH AND SO ARE SEMIAUTOMATIC RIFLES. THAT’S WHAT MAKES THIS ISSUE DIFFICULT, AS I SAID, IN THE LAST TWO PAGES OF MY DISSENT IN HELLER. I FULLY UNDERSTAND THE GANG VIOLENCE, GUN VIOLENCE, DRUG VIOLENCE THAT HAS PLAGUED VARIOUS CITIES, INCLUDING WASHINGTON, D.C. THIS WAS KNOWN AS THE MURDER CAPITAL OF THE WORLD FOR A WHILE, THIS CITY. AND THAT WAS A LOT OF HANDGUN VIOLENCE AT THE TIME. SO I UNDERSTAND THE ISSUE, BUT 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, AT THE END OF THE OPINION I CITED TEXAS VERSUS JOHNSON’S QUOTE THAT I READ YESTERDAY AS A GUIDING LIGHT FOR LOWER COURT JUDGES AND ALL JUDGES.>>>JUST SOME OF THE TESTIMONY FROM EARLIER TODAY IN THE CONFIRMATION HEARING OF SUPREME COURT NOMINEE BRETT KAVANAUGH. THE HEARING EXPECTED TO CONTINUE HERE LIVE SHORTLY. THE SENATORS JUST TAKING A BREAK. THE CHAIR SAYS THEY PLAN ON RETURNING IN ANOTHER 15 MINUTES OR SO AS THEY HEAD TO THE SENATE FLOOR FOR A VOTE. ALSO AS A REMINDER, WE’LL BE SHOWING THAT DAY’S TESTIMONY IN THE EVENING AT 8:00 P.M. LIVE. WE’LL HAVE THAT ON C-SPAN2. THE CHAIR SAID HE EXPECTS THE HEARING TO LAST ABOUT FOUR DAYS. TOMORROW MORE CONFIRMATION OF THE NOMINEE IS EXPECTED. WE’LL FOLLOW THAT ON C-SPAN3. JOHN DEAN, WHO SERVED AS WHITE HOUSE COUNSEL AT WATERGATE. HE WAS CALLED TO TESTIFY ABOUT THE ABUSE OF PROTECTIVE POWER. THE HEARING IS EXPECTED TO RESUME SHORTLY.>>>WELCOME BACK, JUDGE KAVANAUGH. THE NEXT PERSON TO ASK QUESTIONS IS SENATOR DURBIN.>>THANK YOU, MR. CHAIRMAN. JUDGE KAVANAUGH, MRS. KAVANAUGH, THANK YOU FOR BEING BACK TODAY TO FACE THIS NEXT ROUND. IF I HAD TO PICK AN AREA OF CLEAR EXPERTISE WHEN IT COMES TO BRETT KAVANAUGH, IT WOULD BE THE AREA OF JUDICIAL NOMINATIONS. YOU HAVE BEEN ENGAGED IN THAT AT SEVERAL DIFFERENT LEVELS, INCLUDING YOUR OWN PERSONAL EXPERIENCE. AND SO I’D LIKE TO ASK YOU IF YOU WOULD COMMENT ON THE STRATEGY OF YOUR OWN NOMINATION. SPECIFICALLY, I WOULD LIKE TO ASK YOU WHETHER THOSE WHO 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 WOULD BE THE FIRST SUPREME COURT NOMINEE TO ASSERT EXECUTIVE PRIVILEGE TO LIMIT THE ACCESS TO 100,000 DOCUMENTS RELATING TO YOUR SERVICE IN THE WHITE HOUSE?>>SENATOR, THERE’S A COUPLE THINGS PACKED IN YOUR QUESTION. I DID STUDY THE NOMINEE PRECEDENT, READ ALL THE HEARINGS. THIS CAME UP IN JUSTICE SCALIA’S HEARING SO I READ THAT WITH ALL HIS MEMOS FROM BEING HEAD OF THE OFFICE OF LEGAL COUNSEL AND HE WAS ASKED ABOUT THAT. AND I KNOW WITH CHIEF JUSTICE ROBERTS THERE WERE FOUR YEARS OF INFORMATION WHEN HE WAS PRINCIPAL DEPUTY SOLICITOR GENERAL THAT THOSE WERE NOT DISCLOSED, EITHER.>>AS FOR WHITE HOUSE DOCUMENTS, YOU’RE BREAKING NEW GROUND HERE, OR I SHOULD SAY, COVERING UP OLD GROUND HERE?>>WELL, I GUESS I — I GUESS — AGAIN, I WASN’T INVOLVED IN THE DOCUMENTS DISCUSSION OR PROCESS OR SUBSTANCE IN TERMS OF THE DECISIONS THAT WERE MADE, BUT IN TERMS OF THINKING ABOUT THE ISSUE, IN TERMS OF QUESTIONS THAT COULD COME TO ME, LIKE JUSTICE SCALIA AND CHIEF JUSTICE ROBERTS RECEIVED, OR AT LEAST JUSTICE SCALIA DID, IT’S ALL WHITE HOUSE DOCUMENTS.>>BUT WHEN YOU REALIZE WHEN IT COMES TO THE ROLE OF NATIONAL ARCHIVES, WE’RE BEING ASKED TO GIVE YOU SPECIAL TREATMENT.>>I CAN’T COMMENT, BECAUSE I DON’T KNOW.>>JUDGE KAVANAUGH, THIS IS YOUR FIELD, JUDICIAL NOMINATIONS. THIS IS YOUR NOMINATION.>>LET ME ASK — SORRY.>>YOU ARE NOW EMBARKING ON THIS JOURNEY IN THIS COMMITTEE, DENYING US ACCESS THE TO DOCUMENTS WHICH WERE ROUTINELY PROVIDED FOR OTHER JUDICIAL NOMINEES. YOU HAD TO HAVE KNOWN THAT WAS TAKING PLACE.>>SENATOR, I THINK WHAT JUSTICE SCALIA SAID WHEN HE WAS ASKED ABOUT HIS LEGAL MEMOS IS THE RIGHT THING, WHICH IS, THAT’S A DECISION FOR THE SENATE AND EXECUTIVE BRANCH TO WORK OUT. AS A NOMINEE, I WILL — AND THERE ARE LONG-TERM PRIVILEGES AND PROTECTIONS, AS HE MENTIONED, THAT WERE INFECT FOR THAT DISCUSSION, AND IT’S NOT FOR THE NOMINEE TO MAKE THAT DECISION.>>WELL, THAT IS — THAT’S AN INTERESTING COMMENT, BECAUSE THE WAY YOU’RE BEING PRESENTED TO THE AMERICAN PEOPLE, WITH ONLY 10% OF THE PUBLIC DOCUMENTATION THAT COULD BE PROVIDED TO THIS COMMITTEE IS GOING TO REFLECT ON YOU AND YOUR NOMINATION. AND OF COURSE YOU KNOW THAT.>>WELL, I GUESS I — AGAIN, LOOKING AT THE NOMINEE PRECEDENT, SENATOR, THAT WAS TRUE IN JUSTICE SCALIA’S CASE. ALL HIS MEMOS FROM 1974 TO 1977, WHEN HE WAS HEAD OF THE OFFICE OF LEGAL COUNSEL, A CONSEQUENTIAL TIME, AT LEAST AS I UNDERSTAND IT, THOSE MIGHT NOT HAVE BEEN DISCLOSED. HE’S ASKED ABOUT THAT, CHIEF JUSTICE ROBERTS, FOUR YEARS OF DEPUTY SOLICITOR GENERAL MEMOS, WHICH WOULD HAVE BEEN — >>SO YOU’RE PERFECTLY FINE WITH THIS NOTION?>>NO, I SAID — I AM, UM, IT’S UP TO THE CHAIRMAN AND YOU AND THE COMMITTEE, THE SENATE, AND THE EXECUTIVE BRANCH — >>IN FAIRNESS, JUDGE KAVANAUGH, I THINK IT’S UP TO YOU. I THINK IT’S UP TO YOU. IF YOU SAID AT THIS MOMENT, TO THIS CHAIRMAN AND TO THIS COMMITTEE, STOP, PAUSE, 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. AND I DIDN’T REALIZE THIS REPUBLICAN STAFFER HAD HACKED INTO MY COMPUTER, STOLEN MY STAFF MEMOS, AND RELEASED THEM TO THE “WALL STREET JOURNAL” UNTIL THEY SHOWED UP IN AN EDITORIAL. SO NOW YOUR KNOWLEDGE OF THIS, YOUR ROLE IN THIS IS — WE’RE LIMITED TO EVEN DISCUSS, BECAUSE OF THE FACT THAT WE ARE CLASSIFYING AND WITHHOLDING INFORMATION ABOUT YOUR NOMINATION. FIRST, A MR. BILL BURKE, WHO HAS SOME MAGIC POWER TO DECIDE WHAT THE AMERICAN PEOPLE WILL SEE ABOUT YOUR ROLE IN THE WHITE HOUSE. THEN THE DECISION BY THOSE WHO PUT YOUR NOMINATION BEFORE US TO TAKE 35 MONTHS OF YOUR SERVICE AS STAFF SECRETARY TO THE PRESIDENT OF THE UNITED STATES AND TO EXCLUDE THE DOCUMENTS. THEN, THE UNILATERAL CLASSIFICATION OF DOCUMENTS COMING TO THIS COMMITTEE, IS COMMITTEE CLASSIFIED IN A MATTER THAT NO ONE HAS EVER SEEN IN THE HISTORY OF THIS COMMITTEE. JUDGE KAVANAUGH, THAT REFLECTS ON YOUR REPRESENTATION AND YOUR CREDIBILITY. IF YOU SAID AT THIS MOMENT, I DON’T WANT TO HAVE A CLOUD OVER THIS NOMINATION, I’M PREPARED TO SUGGEST TO THE COMMITTEE AND ASK THE COMMITTEE, HUMBLY, PLEASE, WITHHOLD FURTHER HEARINGS UNTIL YOU DISCLOSE EVERYTHING. WHY WON’T YOU DO THAT?>>SENATOR, I DO NOT BELIEVE THAT’S CONSISTENT WITH WHAT PRIOR NOMINEES HAVE DONE WHO HAVE BEEN IN THIS CIRCUMSTANCE. IT’S A DECISION FOR THE SENATE AND THE EXECUTIVE BRANCH. JUSTICE SCALIA EXPLAINED THAT VERY CLEARLY, I THOUGHT, IN HIS HEARING.>>ARE YOU HAPPY WITH THAT DECISION?>>I DO NOT — IT’S NOT FOR ME TO SAY, SENATOR. THIS IS A DECISION — THE LONG-TERM INTERESTS OF THE SENATE AND THE EXECUTIVE BRANCH, PARTICULARLY THE EXECUTIVE BRANCH, ARE AT PLAY. AND JUSTICE SCALIA, AGAIN, EXPLAINED THAT WELL, I THOUGHT, IN HIS — >>I WASN’T HERE FOR JUSTICE SCALIA.>>LET ME INTERRUPT WITHOUT TAKING TIME AWAY FROM HIM. THE NOMINEE DOESN’T NEED ANY HELP FROM ME TO ANSWER THIS. BUT WE DON’T CARE WHAT THE NOMINEE THINKS. WE’VE GOT TO FOLLOW THE PRESIDENTIAL RECORDS ACT. AND THAT’S WHAT WE’RE 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’S A MR. BILL BURKE, WHO WAS A FORMER ASSISTANT TO THE NOMINEE, WHO HAS DECIDED WHAT WILL BE WITHHELD, WHAT IS GOING TO BE COMMITTEE CONFIDENTIAL. SO IT ISN’T THE PRESIDENTIAL RECORDS ACT, PLEASE.>>WELL, STILL, LET ME MAKE CLEAR HERE, WE ANTICIPATE SOME OF THIS, SO LET ME READ. CRITICIZE THE COMMITTEE PROCESS FOR OBTAINING JUDGE KAVANAUGH’S RECORDS. THEY HAVE ACCUSED US OF CUTTING THE NATIONAL ARCHIVES OUT OF THE PROCESS. SO THIS IS WHERE I WANT TO SET THE RECORD STRAIGHT. PRESIDENT BUSH ACTED CONSISTENTLY WITH FEDERAL LAW WHEN HE EXPEDITED THE PROCESS AND GAVE US UNPRECEDENTED ACCESS IN RECORD TIME TO JUDGE KAVANAUGH’S RECORD, BUT 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 A CURRENT PRESIDENT AN OPPORTUNITY TO REVIEW. THE NATIONAL ARCHIVES WAS NOT CUT OUT OF THE PROCESS. AS PRESIDENT BUSH’S REPRESENTATIVE INFORMED THE COMMITTEE, QUOTE, FROM HIS LETTER, BECAUSE WE HAVE SOUGHT, RECEIVED, AND FOLLOWED ARCHIVIST VIEWS ON ANY DOCUMENTS WITHHELD AS PERSONAL DOCUMENTS, THE RESULTING PRODUCTION OF DOCUMENTS TO THE COMMITTEE IS ESSENTIALLY THE SAME AS IF NARA HAD CONDUCTED ITS 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’RE JUST ABLE TO GET THE DOCUMENTS FASTER BY DOING IT THIS WAY, WHICH GAVE THE SENATE AND THE AMERICAN PEOPLE UNPRECEDENTED ACCESS IN RECORD TIME TO A SUPREME COURT NOMINEE RECORD. CONTINUE.>>CHAIRMAN OF THE NATIONAL ARCHIVES HAVE STATED PUBLICLY TO THE WAY THAT WE ARE HANDLING THE RECORDS FOR THIS NOMINATION ARE UNPRECEDENTED AND THEY’VE HAD NOTHING TO DO WITH IT. THEY HAVE ASKED UNTIL THE END OF OCTOBER TO PRODUCE RECORDS. AND THEY HAVE BEEN TOLD, WE DON’T NEED YOU, WE’RE GOING TO FINISH THIS HEARING LONG BEFORE THEN. I WOULD LIKE TO ASK BE PLACED IN THE RECORD THE STATEMENT FROM THE NATIONAL ARCHIVES, RELATED TO THE RECORDS RELATED TO JUDGE KAVANAUGH. I HAVE PLACED CONSENSUS IN THE RECORD.>>I’M SORRY?>>STATEMENT FROM THE NATIONAL ARCHIVES.>>PUT IN THE RECORD? YES, WITHOUT OBJECTION.>>NOW I’M GOING TO THROW YOU A PITCH WHICH YOU HAVE SEEN COMING FOR 12 YEARS. I WANT TO TALK TO YOU ABOUT THE 2006 TESTIMONY WHICH YOU GAVE BEFORE THIS COMMITTEE. IT WAS AT A DIFFERENT TIME. WE WERE VERY CONCERNED ABOUT THE ISSUE OF TORTURE AND DETENTION AND INTERROGATION. YESTERDAY, I ASKED YOU TO SHOW THE AMERICAN PEOPLE THAT YOU HAVE NOTHING TO HIDE BY COMING CLEAN WITH US ON THIS ISSUE. AND I WOULD LIKE TO REFER SPECIFICALLY TO SOME OF THE QUESTIONS THAT WERE RAISED BECAUSE OF THAT 2006 TESTIMONY. I BELIEVE WE HAVE HERE A STATEMENT — MY QUESTION, AS WELL AS YOUR RESPONSE. AND I’M SURE YOU’VE SEEN THIS, BECAUSE IT’S BEEN REPORTED IN THE PAPER THAT YOU’VE BEEN WAITING FOR THIS QUESTION FOR A LONG TIME. WHEN I WAS BACK IN THE DAY, A TRIAL ATTORNEY, PREPARING A WITNESS FOR INTERROGATION, TESTIMONY, DEPOSITION, GIVING TESTIMONY AT TRIAL, I SAID TWO THINGS, TELL TRUTH, AND DON’T ANSWER MORE THAN YOU’RE ASKED. DON’T VOLUNTEER INFORMATION. JUDGE KAVANAUGH, YOU FAILED ON THE SECOND COUNT.>>THE QUESTION I ASKED YOU, WHAT WAS YOUR ROLE IN THE ORIGINAL HAYNES NOMINATION DECISION TO RE-NOMINATE HIM. AND AT THE TIME OF THE NOMINATION, WHAT DID YOU KNOW ABOUT MR. HAYNES’ ROLE IN CRAFTING THE 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 COMBATANTS OR, AND SO I DO NOT HAVE THE INVOLVEMENT WITH THAT. AND WITH RESPECT TO MR. HAYNES’ NOMINATION, I HAVE KNOWN JIM HAYNES, BUT IT WAS NOT ONE OF THE NOMINATIONS THAT I HANDLE.>>CAN YOU RAISE IT A LITTLE HIGHER? I CAN’T SEE THE BOTTOM. GOT IT.>>I ASKED YOU ABOUT THIS WHEN WE HAD A MEETING IN MY OFFICE.>>YES.>>AND I STILL DON’T UNDERSTAND YOUR ANSWER, IN TERMS OF HOW YOU COULD STATE AS CLEARLY AND UNEQUIVOCALLY, I WAS NOT INVOLVED AND AM NOT INVOLVED IN THE QUESTIONS ABOUT THE RULES GOVERNING THE DETENTION OF COMBATANTS. YOU WERE INVOLVED IN THE DISCUSSIONS ABOUT ACCESS TO COUNSEL FOR DETAINEES. YOU CONFIRMED THIS DURING THE MEETING WE HAD IN MY OFFICE AND THERE ARE MULTIPLE MEDIA REPORTS, AS WELL. YOU WERE INVOLVED IN DISCUSSIONS REGARDING DETAINED U.S. COMBATANTS, YASSER HAMDI AND JOSE PAPADILLA. YOU CONFIRMED THAT. AND YOU WERE INVOLVED WITH PRESIDENT BUSH’S 2005 SIGNING STATEMENT ON SENATOR JOHN McCAIN’S AMENDMENT BANNING CRUEL AND DEGRADING TREATMENT OF DETAINEES. YOU CONFIRMED THAT IN THE MEETING. THERE WERE NO EXCEPTIONS IN YOUR ANSWER GIVEN TO ME IN 2006, NOT FOR LITIGATION OR DETAINEE ACCESS TO COUNSEL OR THE McCAIN AMENDMENT. SO IF THOSE THREE BASED ON THE LIMITED DOCUMENTS WHICH WE’VE BEEN GIVEN ARE OBVIOUS, WHAT WERE YOU TRYING TO TELL ME HERE? DID YOU REALLY DISCLOSE ACCURATELY YOUR ROLE?>>YES. I UNDERSTAND THE QUESTION THEN AND MY ANSWER THEN AND I UNDERSTAND — [ PROTESTERS PROTESTING ]>>GO AHEAD.>>I UNDERSTAND THE QUESTION THEN AND THE ANSWER THEN AND I UNDERSTAND THE QUESTION NOW AND THE ANSWER NOW, TO BE 100% ACCURATE. YOU WERE CONCERNED ABOUT WHETHER I WAS INVOLVED IN THE PROGRAM THAT TWO OTHER NOMINEES HAD BEEN INVOLVED IN. AND THE REPORT THAT SENATOR FEINSTEIN PRODUCED, THE JUSTICE DEPARTMENT REPORT, THEY SHOWED THAT I WASN’T. IN OTHER WORDS, THE PROGRAM, CRAFTING THE PROGRAM FOR THE ENHANCED INTERROGATION TECHNIQUES FOR THE DETAINEES.>>MR. — JUDGE KAVANAUGH, THAT’S NOT THE QUESTION. DO YOU SEE ME ASKING WHETHER YOU CRAFTED THE PROGRAM? I DIDN’T. I ASKED YOU ABOUT YOUR INVOLVEMENT IN THE HAYNES — AND THEN YOU — >>CRAFTING — >>YES. THEN YOU WENT FURTHER, YOU VIOLATED THE SECOND RULE I GIVE TO EVERY WITNESS. YOU ANSWERED MORE THAN I ASKED.>>THE FIRST ONE, I TOLD THE TRUTH.>>WELL, YOU VOLUNTEERED MORE INFORMATION THAN I ASKED AND YOU WENT FURTHER THAN YOU SHOULD HAVE. BECAUSE IN THE THREE SPECIFIC INSTANCES I’VE GIVEN YOU, YOU CLEARLY WERE INVOLVED IN QUESTIONS ABOUT RULES, GOVERNING DETENTION OF COMBATANTS.>>SO I UNDERSTOOD THE QUESTION THEN AND I UNDERSTAND IT NOW IN MY ANSWER ABOUT THAT PROGRAM. I TOLD THE TRUTH ABOUT THAT. AND IN THE REPORTS THAT HAVE COME OUT SUBSEQUENTLY HAVE SHOWN I TOLD THE TRUTH ABOUT THAT. MY NAME IS NOT IN THOSE REPORTS. NOW, FOR THE 2005 SIGNING STATEMENT, BY THAT TIME, I’M IN STAFF SECRETARY OFFICE. AND EVERYTHING THAT WENT TO THE PRESIDENT’S DESKS, EVERYTHING THAT WENT TO THE PRESIDENT’S DESKS, WITH A FEW COVERT EXCEPTIONS, WOULD HAVE SOMEHOW CROSSED MY DESK ON THE WAY. SO YOU ASKED, ON A SIGNING STATEMENT, IT WOULD HAVE CROSSED MY DESK ON THE WAY. SO WOULD A SPEECH DRAFT ON THE IRAQ WAR. SO WOULD A SPEECH — YOU KNOW, THOSE THINGS WOULD HAVE CROSSED MY DESK. PREPARED BY OTHERS, NOT PREPARED BY ME, BUT THEY CROSSED MY DESK ON THE WAY TO THE PRESIDENT.>>IN THE 2006 HEARING, YOU TOLD CHAIRMAN ARLEN SPECTER, YOU GAVE PRESIDENT BUSH ADVICE ON SIGNING STATEMENTS, INCLUDING, QUOTE, IDENTIFYING POTENTIAL CONSTITUTIONAL ISSUES IN LEGISLATION. DID YOU MAKE ANY COMMENTS REGARDING THE DECEMBER 30th, 2005 SIGNING STATEMENT ON THE McCAIN TORTURE AMENDMENT, INCLUDING POTENTIAL CONSTITUTIONAL ISSUES?>>I CAN’T RECALL WHAT I SAID. I DO RECALL THERE WAS A GOOD DEAL OF INTERNAL DEBATE ABOUT THAT SIGNING STATEMENT, AS YOU WOULD IMAGINE THERE WOULD BE. I REMEMBER THAT IT WAS CONTROVERSIAL INTERNALLY AND I REMEMBER THAT I THOUGHT, AND I CAN’T REMEMBER ALL OF THE INS AND OUTS OF WHO THOUGHT WHAT, BUT I DO REMEMBER THAT A COUNSEL OF THE PRESIDENT WAS IN CHARGE, ULTIMATELY, OF SIGNING STATEMENTS IN TERMS OF THE FINAL RECOMMENDATION TO THE PRESIDENT.>>AND JUST A FEW MONTHS LATER, YOU, UNDER OATH TOLD US YOU WERE NOT INVOLVED IN ANY OF THE QUESTIONS ABOUT THE RULES GOVERNING DETENTION OF COMBATANTS.>>SENATOR, AGAIN, WE WERE, AT LEAST I UNDERSTOOD IT THEN AND I UNDERSTAND IT NOW TO BE REFERRING TO THE PROGRAM THAT WE WERE TALKING ABOUT THAT WAS VERY CONTROVERSIAL, THAT SENATOR FEINSTEIN SPENT YEARS TRYING TO DIG INTO. AND I WAS — I WAS NOT READ INTO THAT PROGRAM. I TOLD THE TRUTH ABOUT THAT AND, UM — >>LET ME GO TO ANOTHER AREA OF QUESTIONING, IF I CAN. THANK YOU VERY MUCH. IN YOUR DISSENT IN GARZA VERSUS HARRGAN, YOU WROTE THAT THE COURT HAD CREATED A NEW RIGHT FOR UNLAWFUL UNITED STATES MINORS IN DETENTION TO OBTAIN IMMEDIATE ABORTION ON DEMAND. THEREBY BARRING ANY GOVERNMENT EFFORTS TO EXPEDITIOUSLY TRANSFER THE MINORS TO THEIR IMMIGRATION SPONSORS BEFORE THEY MAKE THAT MOMENTOUS LIFE DECISION. YOU ARGUED THAT PERMITTING THE GOVERNMENT ADDITIONAL TIME TO FIND A SPONSOR FOR YOUNG WOMEN IN THE CASE DID NOT IMPOSE AN UNDUE BURDEN, EVEN THOUGH THE GOVERNMENT’S CONDUCT IN THE CASE HAD ALREADY FORCED HER TO DELAY HER DECISION ON A ABORTION BY SEVERAL WEEKS. WE ARE TALKING ABOUT A YOUNG WOMAN, CHARACTERIZED AS JANE DOE, WHO DISCOVERED 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 TOFR TO COMPLY WITH T STATE LAW AS WELL AS STEPS FORCED ON HER BY THE FEDERAL GOVERNMENT. SHE VISITED A RELIGIOUS ANNE T-ABORTION CRISIS PREGNANCY CENTER, WENT AN ULTRASOUND FOR NO MEDICAL PURPOSE AND WENT BEFORE A JUDGE AND OBTAINED A JUDICIAL BYPASS OF THE STATE’S PARENTAL CONSENT REQUIREMENTS. IN OTHER WORDS, THIS YOUNG WOMAN COMPLIED WITH EVERY LEGAL REQUIREMENT, INCLUDING TEXAS STATE REQUIREMENTS PLACED IN FRONT OF HER, SO SHE COULD MOVE FORWARD WITH HER DECISION. A DECISION AFFECTING HER BODY AND HER LIFE. DO YOU BELIEVE THAT THIS WAS AN ABORTION ON DEMAND?>>SENATOR, THE GARZA CASE INVOLVED FIRST AND FOREMOST, A MINOR. IT’S IMPORTANT TO EMPHASIZE, IT WAS A MINOR.>>YES.>>SO SHE HAD BEEN — AND SHE’S IN AN IMMIGRATION FACILITY IN THE UNITED STATES, SHE’S FROM ANOTHER COUNTRY. SHE DOES NOT SPEAK ENGLISH. SHE’S BY HERSELF. IF SHE HAD 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, YOU ASK? 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. SO WE HAD TO ANALYZE THIS, FIRST ADDS A MINOR AND THEN FOR ME, THE FIRST QUESTION ALWAYS, WHAT’S THE PRECEDENT? THE PRECEDENT ON POINT FROM THE SUPREME COURT IS THERE IS NO CASE ON EXACT POINTS, SO YOU DO WHAT YOU DO IN ALL CASES, WHAT’S THE CLOSEST BODY OF LONG POINT? THE PARENTAL CONSENT DECISIONS OF THE SUPREME COURT, WHERE THEY’VE REPEATEDLY UPHELD PARENTAL CONSENT LAWS OVER THE OBJECTION OF DISSENTERS, WHO THOUGHT THAT’S GOING TO DELAY THE PROCEDURE TOO LONG, UP TO SEVERAL WEEKS. AND I’M GETTING TO THE POINT, I’M GETTING TO THE POINT.>>BEFORE YOU GET TO THE POINT, YOU’VE JUST BYPASSED THING. YOU JUST BYPASSED THE JUDICIAL BYPASS, WHICH SHE RECEIVED FROM THE STATE OF TEXAS, WHEN IT CAME TO PARENTAL CONSENT. THAT’S ALREADY HAPPENED HERE. AND YOU’RE STILL STOPPING HER.>>I’M 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 CLOCK IS TICKING. 20-WEEK CLOCK IS TICKING. SHE MADE THE DECISION EARLY IN THE PREGNANCY AND ALL THAT I DESCRIBED TO YOU IN JUDICIAL DECISIONS, THE CLOCK IS TICKING. AND YOU ARE SUGGESTING SHE SHOULD HAVE WAITED TO HAVE A SPONSOR APPOINTED, WHO SHE MAY OR MAY NOT HAVE CONSULTED IN MAKING THIS DECISION.>>AGAIN, I’M A JUDGE. I’M NOT MAKING THE POLICY DECISION. MY JOB IS TO DECIDE WHETHER THAT POLICY IS CONSISTENT WITH LAW. WHAT DO I DO? I LOOK AT PERSISTENT AND THE MOST ANALOGOUS PERSISTENT IS THE PARENTAL CONSENT PRECEDENT. FROM KC HAS THIS FACE. MINORS BENEFIT FROM CONSULTATION ABOUT ABORTION. IT’S A QUOTE, TALKING ABOUT CONSULTATION WITH PARENTS.>>SO YOU ARE ADDING A REQUIREMENT HERE, BEYOND THE STATE OF TEXAS ROIRLTS THAT THERE BE SOME SPONSOR CHOSEN WHO MAY OR MAY NOT BE CONSULTED FOR THIS DECISION. AND THE CLOCK IS TICKING ON HER PREGNANCY.>>SO A COUPLE OF THINGS THERE, SENATOR. YOU SAID YOU ARE ADDING. I’M NOT ADDING. I’M A JUDGE. THE POLICIES BEING MADE BY OTHERS, I’M DECIDING WHETHER THE POLICY IS THEN CONSISTENT WITH SUPREME COURT PERSISTENT. THERE ARE TWO THINGS TO LOOK AT IN THIS CONTEXT, SENATOR. FIRST, IT’S THE GOVERNMENT’S GOAL REASONABLE IN SOME WAY? AND THEY SAY, WE WANT THE MINOR TO HAVE THE OPPORTUNITY TO CONSULT ABOUT THE ABORTION. WELL, THE SUPREME COURT PERSISTENT SPECIFICALLY SAYS, SPECIFICALLY SAYS THAT THAT’S AN APPROPRIATE OBJECTIVE.>>WAS THIS A STATE REQUIREMENT?>>THE SECOND QUESTION — >>WAS THAT A STATE REQUIREMENT?>>THE SECOND QUESTION IS THE DELAY, YOUR POINT, IN 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, BRENNAN, AND BLACKMAN REPEATEDLY DISSENTED IN CASES BECAUSE THEY THOUGHT THE DELAY WAS TOO LONG. I QUOTED ALL OF THAT IN MY GARZA OPINION, AND I MADE CLEAR, IT HAD TO HAPPEN VERY QUICKLY. AND I LOOKED AT THE TIME OF THE PREGNANCY TO MAKE SURE THAT SAFETY, I SPECIFICALLY TALK ABOUT SAFETY. I SPECIFICALLY SAY THAT THE GOVERNMENT CANNOT USE THIS AS A RUSE TO SOMEHOW PREVENT THE ABORTION. I SPENT A PARAGRAPH TALKING ABOUT, SHE WAS IN AN UNDENIABY DIFFICULT SITUATION. SOY TRIED TO RECOGNIZE THE REAL-WORLD EFFECTS ON HER. I SAID, CONSIDER THE CIRCUMSTANCES. SHE’S A 17-YEAR-OLD, BY HERSELF, IN A FOREIGN COUNTRY, IN A FACILITY WHERE SHE’S DETAINED IN AND SHE HAS NO ONE TO TALK TO AND SHE’S PREGNANT. NOW, THAT IS A DIFFICULT SITUATION. I TRIED TO RECOGNIZE AND UNDERSTAND THAT. AND THEN AS A JUDGE, NOT THE POLICY MAKER, I TRIED TO UNDERSTAND WHETHER THE GOVERNMENT’S POLICY WAS CONSISTENT WITH THE SUPREME COURT’S PRECEDENTS. AND I DID THE BEST I COULD. AND I SAID ON THOSE PARENTAL CONSENT PRECEDENTS, SOME PEOPLE DISAGREE WITH THOSE PRECEDENTS AND THINK THOSE KIND OF STATUTES SHOULD NOT BE ALLOWED. BUT A PRECEDENT’S NOT LIKE A CAFETERIA, WHERE I CAN TAKE THIS, BUT NOT THAT. I HAD TO TAKE K.C. IN COMPLETELY. K.C. REAFFIRMED ROE — >>I HAVE SOME OTHER QUESTIONS, SO I WOULD LIKE — >>WELL, IT’S AN IMPORTANT QUESTION.>>IT’S A CRITICAL QUESTION.>>I DID MY LEVEL BEST IN AN EMERGENCY POSTURE. SO I HAD BASICALLY TWO DAYS.>>IT WAS A 2-1 DECISION WHICH YOU DISSENTED FROM?>>I DID THE BEST TO FOLLOW PRECEDENT AND AS I ALWAYS TRY TO DO, BE AS CAREFUL AS I CAN IN FOLLOWING THE PRECEDENT OF THE SUPREME COURT.>>LET ME ASK YOU A PERSONAL QUESTION. WHAT’S THE DIRTIEST, HARDEST JOB YOU’VE EVER HAD IN YOUR LIFE?>>I WORKED CONSTRUCTION WHEN I WAS — THE SUMMER AFTER I WAS 16 FOR A SUMMER, 7:00 A.M. TO 3:30 P.M. MY DAD DROPPED ME OFF EVERY MORNING AT 7:00, 6:55, HE WANTED ME TO BE EARLY. AND THAT’S — THAT’S PROBABLY THE ONE. AND I SHOULD ALSO SAY, SENATOR, I HAD WHAT — ONE PERSON, I GUESS, I GUESS, LAWN BUSINESS FOR A LONG SUMMER. I CUT A LOT OF LAWNS. THAT’S HOW I MADE SOME CASH. I STARTED THAT PROBABLY EIGHTH GRADE, MAYBE SEVENTH GRADE. I CUT MY PARENT’S LAWN, BUT I CUT A LOT OF LAWNS IN THE NEIGHBORHOOD AND DISTRIBUTED FLYERS ALL OVER THE PLACE TO SAY, IF YOU NEED YOUR LAWN CUT, CALL ME. SO LAWN CUTTING AND THEN THE CONSTRUCTION JOB THE ONE SUMMER.>>MY DIRTIEST JOB I EVER HAD WAS FOUR SUMMERS WORKING IN A SLAUGHTERHOUSE.>>YES.>>I ALWAYS WANTED TO GO BACK TO COLLEGE.>>YES.>>COULDN’T WAIT TO GET OUT OF THERE. IT WAS UNBEARABLE. IT WAS DIRTY, IT WAS HOT >>THE THINGS I DID WERE UNIMAGINABLE AND I WOULDN’T EVEN START TO REPEAT THEM. THEN CAME A CASE BEFORE YOU CALLED AGRO PROCESSER COMPANY VERSUS NRBB. AT LEAST A THIRD OF THE WORKERS, JUDGE KAVANAUGH, IN OUR NATION’S SLAUGHTERHOUSES ARE IMMIGRANTS. IT STANDS — VISITS TO IOWA OR ILLINOIS, PROBABLY DELAWARE, YOU PICK IT. YOU’RE GOING TO FIND A LOT OF IMMIGRANTS DOING THESE MISERABLE, STINKING, HOT JOBS. MANY OF THEM ARE UNDOCUMENTED. THE WORK IS LOW PAY AND DANGEROUS. AND AS THE GAO IS NOTED, IMMIGRANTS ARE PRESSURED NOT TO EVEN REPORT INJURIES ON THE JOB. IT WAS A NOTORIOUS MEAT PACKING COMPANY OWNED BY SHAHRAM LABASKIN WHO WAS CONVICTED OF FRAUD AND MONEY LAUNDERING IN 2009. HIS 27-YEAR SENTENCE RECENTLY WAS COMMUTED BY PRESIDENT TRUMP. AGRO PROCESSORS HAD AT THE CORE OF ITS BUSINESS MODEL THE EXPLOITATION OF UNDOCUMENTED WORKERS. ALMOST HALF THEIR WORKERS WERE NOT AUTHORIZED. WORKERS ALLEGE THE 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 AGROPROCESSER’S BROOKLYN HEADQUARTERS SAID, QUOTE, WE WERE TREATED LIKE GARBAGE, AND IF WE SAID ANYTHING, WE GOT FIRED IMMEDIATELY. JUDGE KAVANAUGH, YOU BENT OVERBACKWARDS TO TAKE THE COMPANY’S SIDE AGAINST THESE WORKERS. IN A 2008 CIRCUIT CASE, YOUR DISSENT ARGUED THAT THIS COMPANY’S WORKERS 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 PRECEDENT. 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 ARE THE JUDGES SAID ABOUT YOUR DISSENT, WOULD, QUOTE, ABANDON THE TEXT OF THE CONTROLLING STATUTE AND LEAD TO A, QUOTE, ABSURD RESULT. THE MAJORITY IN THIS DECISION INCLUDED ONE REPUBLICAN AND ONE DEMOCRATIC OPPONENT JUDGE. JUDGE KAVANAUGH, YOU CLAIM OVER AND OVER AGAIN TO BE A TEXTUALIST, TO BE CAREFULLY WEIGHING EVERY WORD OF STATUTE. SO WHY DID YOU GO OUT OF OUR WAY IN A WAY THAT BENEFITED THIS HORRIBLE BUSINESS AND DISADVANTAGED THESE EXPLOITED WORKERS? WHY DIDN’T YOU STICK TO THE PLAIN LANGUAGE OF THE CONTROLLING STATUTE AND THE BINDING SUPREME COURT PRECEDENT?>>BECAUSE THE SUPREME COURT PREGNANT COMPELLED ME TO REACH THE RESULTS THAT I REACHED. AND HERE’S WHY, SENATOR, LET ME EXPLAIN. THE SUPREME COURT HAD A CASE CALLED THE SHIRTAN DECISION. AND THE SHIRTAN DECISION CONSIDERED THE INTERACTION OF THE NATIONAL LABOR RELATIONS LAW ACT AND THE IMMIGRATION LAWS AND WHAT THE SUPREME COURT DID IN SHIRTAN IS HAVE THIS QUESTION AND SAID, IT IS AT THAT TIME PERMISSIBLE TO CONSIDER AN IMMIGRANT UNLAWFULLY IN THE COUNTRY AS AN EMPLOYEE UNDER THE NATIONAL LABOR RELATIONS ACT. AND PART 2B OF THE OPINION, YOU HAVE TO READ PART 2B OF THE SUPREME COURT’S OPINION. IF YOU READ PART 2B, THE COURT THEN GOES ON TO SAY, AND BECAUSE THE PRGS LAWIMMIGRATION LAWS DOT PROHIBIT UNEMPLOYMENT OF PEOPLE UNLAWFULLY IN THE COUNTRY, THE COURT MAKES CLEAR, AS I READ PART 2B, AND I THINK I’M CORRECT ON THIS, IS THAT IF THE IMMIGRATION LAWS DID PROHIBIT EMPLOYMENT OF SOMEONE HERE UNLAWFULLY IN THE COUNTRY, THEN THAT WOULD ALSO MEAN THAT THEY CAN’T VOTE IN THE UNION ELECTION. SO WHAT I WAS DOING THERE, SENATOR, IT’S ALL ABOUT PERSISTENT. I READ THAT, AND MY OPINION, IF YOU LOOK AT THE DISSENTING OPINION, I REALLY PARSE THIS VERY CAREFULLY AND I WENT DEEP. I WENT AND PULLED FROM THE SHIRTAN CASE, I WENT AND ASKED FOR THE THURGOOD MARSHAL PAPERS AND I CITED THE ORAL ARGUMENT TO MAKE SURE THAT THEY THAT WHAT I WAS READING IN THERE WAS ACTUALLY REFLECTIVE OF WHAT HAD BEEN GOING ON IN THE SUPREME COURT. AND IT IS QUITE CLEAR FROM THE ORAL ARGUMENT, THEY WERE AWARE THAT THE IMMIGRATION LAW WAS OBJECT TO BE CHANGED, AND THEY WERE AWARE OF THE INTERACTION BETWEEN THE LABOR LAW AND THE IMMIGRATION LAW. SO I THINK I — I STAND BY WHAT I WROTE THEN AND I THINK I CORRECTLY ANALYZED PART 2B. NOW, SENATOR — >>I’M GOING TO RUN OUT OF TIME HERE, SO — >>IF THE SUPREME COURT SHIRTAN OPINION HAD ENDED AT PART 2A, 100% WOULD AGREE WITH YOU AND MY DECISION WOULD HAVE BEEN DIFFERENT.>>WELL, LET ME — >>IF YOU READ PART 2B, I THINK YOU SEE — >>YOU SAID EARLIER TODAY, YOU DON’T GET TO PICK AND CHOOSE WHICH SUPREME COURT PERSISTENT YOU FOLLOW. THE MAJORITY IN AN AGROPROCESSER’S CASE WAS FOLLOWING SUPREME COURT PRECEDENT. IN THE SHIRTAN CASE, THE SUPREME COURT, A 7-2 DECISION, SAID THE THAT UNDOCUMENTED IMMIGRANTS ARE EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT. I QUOTE, SINCE UNDOCUMENTED ALIENS ARE NOT AMONG THE FEW GROUPS OF WORKERS EXPRESSLY EXEMPTED BY CONGRESS, THEY PLAINLY COME WITHIN THE BROAD STATUTORY DEFINITION OF EMPLOYEE. THAT’S A QUOTE FROM THE CASE.>>THAT’S PART 2A. YOU HAVE TO GO TO PART 2B.>>LET ME TALK ABOUT A FEW PEOPLE WHO COULDN’T AGREE WITH YOU MORE. EVERYONE ELSE WHO LOOKED AT THIS QUESTION, THE NATIONAL LABOR BOARD, TWO APPEALS COURT JUDGES, INCLUDING ONE REPUBLICAN APPOINTEE FOLLOWED THE SUPREME COURT PERSISTENT AND CAME TO THE OPPOSITE CONCLUSION THAT YOU DID. I UNDERSTAND YOU MAY HAVE PREFERRED THE SHIRTAN DISSENT, BUT YOU FAILED TO FOLLOW SUPREME COURT PRECEDENT. THIS WAS A CASE WHERE THE NATIONAL LABOR RELATIONS ACT INCLUDED THOSE WHO ARE UNDOCUMENTED, WHO COULD UNIONIZE TO PROTECT THEMSELVES IN THE WORKPLACE. YOU WENT OUT OF YOUR WAY TO DISSENT ALL THE WAY ALONG AND MAKE SURE THEY DIDN’T — OR IN YOUR VIEW, THAT THEY DID NOT HAVE THAT RIGHT TO UNIONIZE.>>I VERY RESPECTFULLY DISAGREE, SENATOR. THE SUPREME COURT DID SAY IT WAS COVERED. THEN THE SUPREME COURT GOES ON TO SAY, AND WE CONSIDER ALSO IN RESOLVING THIS QUESTION, THE CONFLICT BETWEEN THE NATIONAL LABOR RELATIONS ACT AND THE IMMIGRATION LAWS AND MAKES CLEAR, AS I READ IT, IF THE IMMIGRATION LAWS HAD MADE EMPLOYMENT OF SOMEONE HERE IN THE COUNTRY UNLAWFULLY ILLEGAL, THAT WOULD BE PROHIBITED IN THE CASE. IF YOU GO BACK, I QUOTE THE ORAL ACTOR TRANSCRIPT FROM SHIRTAN IN MY DISSENTING OPINION. AND LOOK, I HAD NO AGENDA IN ANY DIRECTION ON THE — I’M A JUDGE. I’M JUST TRYING TO RESOLVE THE PRECEDENT — >>LET ME CLOSE BY SAYING THIS. I’M JUST A JUDGE, I JUST FOLLOW PRECEDENT. GOSH, WE’VE HEARD THAT SO OFTEN. AND WE HOPE IT’S THE CASE, BUT WE KNOW THERE’S MUCH MORE TO YOUR JOB THAN THAT.>>I AGREE.>>THE FACT THAT YOU WERE A DISSENTER AND EVERYONE ELSE SAW THIS THE OTHER WAY SHOULD GIVE US PAUSE WHEN YOU SAY, I’M JUST FOLLOWING PRECEDENT.>>WELL, I, RESPECTFULLY, SENATOR, THAT OPINION — I’M PROUD OF THAT OPINION, BECAUSE I THINK IT CAREFULLY DETAILS THE LAW IN THAT CASE. OF FOLLOWING THE SUPREME COURT PREGNANT. AND TO YOUR POINT THAT OTHER JUDGES DISAGREE, THERE WAS A CASE I HAD ABOUT TEN YEARS AGO, IT WAS A CASE WHERE I RULED IN FAVOR OF A CRIMINAL DEFENDANT ON A RESTITUTION MATTER. EVERY COURT BEFOREHAND DISAGREED. I WROTE THE MAJORITY OPINION. EVERY COURT AFTER US DISAGREED. FINALLY GOT TO THE SUPREME COURT THIS YEAR AND THEY AGREED WITH OUR ONE OPINION. THE PAPANO OPINION. JUST TO POINT OUT THAT JUST BECAUSE OTHER COURT OF APPEALS MIGHT HAVE DISAGREED DOES NOT NECESSARILY MEAN THAT WE WERE NECESSARILY WRONG, BECAUSE THE SUPREME COURT ULTIMATELY DECIDES THAT. I UNDERSTAND YOUR QUESTION AND I APPRECIATE THEM. SENATOR.>>SENATOR CORNYN AND SENATOR LEE IS GOING TO CHAIR WHILE I HAVE ANOTHER APPOINTMENT.>>THANK YOU, MR. CHAIRMAN. MR. CHAIRMAN, I WAS GRATEFUL THAT TODAY’S HEARING, AT LEAST AS FAR AS THE COMMITTEE IS CONCERNED, IS A LOT MORE DIGNIFIED AND CIVIL. BUT UNFORTUNATELY, SOME OF THE HIGH JINX CONTINUE EVEN ON THE SENATE FLOOR. I KNOW SENATOR McCONNELL HAS CONSENT FOR THE JUDICIARY COMMITTEE TO CONTINUE MEETING DURING TODAY’S SESSION OF THE SENATE. SENATOR SCHUMER OBJECTED, TO SENATOR McCONNELL WAS LEFT WITH NO OPTION BUT TO ADJOURN THE SENATE AND ALLOW THE COMMITTEE TO CONTINUE TO MEET. THAT’S UNFORTUNATE. SO JUDGE, I BELIEVE WE MET IN THE YEAR 2000.>>YES.>>JUST TO TAKE A LITTLE WALK DOWN MEMORY LANE HERE, WHEN I WAS ATTORNEY GENERAL OF TEXAS AND HAD A CHANCE TO ARGUE A CASE IN FRONT OF THE SUPREME COURT OF THE UNITED STATES, YOU, TED OLSEN, AND PAUL CLEMENT, I BELIEVE. >>– YES.>>– HELPED ME GET READY. I REGRET YOU DIDN’T HAVE BETTER MATERIAL TO WORK WITH.>>IT WAS AN HONOR, SENATOR.>>IT WAS A GREAT EXPERIENCE AND AN EDUCATIONAL EXPERIENCE, BUT I GOT TO EXPERIENCE YOUR SKILLS AS A LAWYER AND FOLLOWED YOUR CAREER CLOSELY SINCE AND 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. I DID — THIS ISN’T UNIQUE TO YOU. BASED ON THAT EXPERIENCE, THAT CASE, AS YOU MAY RECALL, INVOLVED A TRADITION IN THE SANTA FE INDEPENDENT SCHOOL DISTRICT, UNFORTUNATELY, WHICH WAS THE SITE OF A SHOOTING IN MORE RECENT DAYS. BUT BACK THEN, THE PRACTICE BEFORE FOOTBALL GAMES IS THAT THE STUDENTS WOULD BE ABLE TO VOLUNTEER TO OFFER A PRAYER BEFORE THE FOOTBALL GAME. THEY WEREN’T REQUIRED TO DO SO, THE SCHOOL DIDN’T PICK THEM, THEY COULD OFFER AN INSPIRATIONAL SAYING OR READ A POEM OR ANYTHING ELSE, BUT THAT WAS THE PRACTICE. WELL, UNTIL THE ACLU FILED SUIT AND UNFORTUNATELY IT WAS HELD TO BE UNCONSTITUTIONAL IN VIOLATION OF THE ESTABLISHMENT CLAUSE. I’M NOT GOING TO ASK FOR YOUR OPINIONS, BECAUSE THIS ISSUE WILL LIKELY COME BACK BEFORE THE T COURT. BUT SINCE I MENTIONED IT TO JUSTICE GORSUCH, I’LL MENTION TO IT TO YOU. THE THING THAT HAS STUCK IN MY CRAW FOR THE LAST 18 YEARS IS THE DISSENT WRITTEN BY CHIEF JUSTICE REHNQUIST. WHICH TAKES EXCEPTION TO THE MAJORITY’S DECISION, SAYING THEY DISTORTED EXISTING PRECEDENT, BUT HE GOES ON TO SAY, EVEN MORE DISTURBING THAN ITS HOLDING IS THE TONE OF THE COURT’S OPINION. IT BRISTLES WITH HOSTILITY TOWARDS ALL THINGS RELIGIOUS IN PUBLIC LIFE. NEITHER THE HOLDING NOR THE TONE OR THE OPINION IS FAITHFUL TO THE MEANING OF THE ESTABLISHMENT CLAUSE. WHEN IT IS RECALLED THAT GEORGE WASHINGTON HIMSELF AT THE REQUEST OF THE VERY CONGRESS WHICH PASSED THE BILL OF RIGHTS PROCLAIMED A DAY OF PUBLIC THANKSGIVING AND PRAYER TO BE OBSERVED BY ACKNOWLEDGING WITH GRATEFUL HEARTS THE MANY AND SIGNAL FAVORS OF THE ALMIGHTY GOD. SINCE I HAD YOU HERE, I THOUGHT I WOULD MENTION THAT. I’M NOT ASKING FOR YOUR OPINION, SINCE LIKELY YOU’LL BE CALLED UPON TO DECIDE CASES INVOLVING THE ESTABLISHMENT CAUSE HERE IN THE FUTURE. BUT SINCE WE HAD THAT HISTORY TOGETHER, I THOUGHT I WOULD JUST TELL YOU IT STILL STICKS IN MY CRAW.>>I UNDERSTAND, SENATOR. WE REMEMBER CERTAINLY CASES WE LOST, I REMEMBER, AND THEY STILL STICK IN MY CRAW, TOO, SENATOR.>>I JUST MARVEL UNDER THE FIRST AMENDMENT, WE CAN — VARIETY OF VOICES CAN SPEAK, AND THAT’S GENERALLY A GOOD THING, BUT IT CAN BE ABOUT VIOLENCE, SEXISM, IT CAN BE ABOUT ALMOST ANYTHING, BUT YOU CAN’T SPEAK ABOUT RELIGION IN A PUBLIC FORUM.>>WELL, THERE HAVE BEEN CASES FROM THE SUPREME COURT, I THINK IN MORE RECENT YEARS, CASES LIKE THE GOOD NEWS CLUB CASE, CASE LIKE THE TRINITY LUTHERAN CASE, CASES LIKE THE TOWN OF GREECE CASE, WHERE I THINK THE SUPREME COURT HAS RECOGNIZED THE SPONSOR, 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. THE TRINITY LUTHERAN IS AN IMPORTANT ONE. THE GOOD NEWS CLUB CASE, THAT’S AN AFTERNOON PROGRAM IN A SCHOOL GYM OR AUDITORIUM AND A RELIGIOUS GROUP WAS EXCLUDED. AND THE SUPREME COURT MADE CLEAR, YOU CAN’T JUST EXCLUDE THE RELIGIOUS GROUP. I THINK THERE HAVE BEEN SOME DEVELOPMENTS SINCE THEN IN TERMS OF RELIGIOUS EQUALITY AND RELIGIOUS LIBERTY THAT ARE IMPORTANT. THOSE CASES ARE ALWAYS DIFFICULT FACTUALLY, BUT THE PRINCIPLE YOU’RE ESPOUSING I DO THINK ARE REFLECTED IN SOME MORE RECENT SUPREME COURT PRECEDENT.>>I’LL JUST CONCLUDE WITH THIS. AS I UNDERSTAND, THE CONSTITUTION REQUIRES A GOVERNMENT TO BE NEUTRAL. AND AS CHIEF JUSTICE REHNQUIST, I THINK IN THIS CASE, THE GOVERNMENT EVIDENCED HOSTILITY TO RELIGIOUS SPEECH IN THE PUBLIC CARE. THAT’S ONE PERSON’S OPINION. AND I’M NOT ASKING YOU OPINION WITH REGARD TO A CASE THAT MAY BECOME BEFORE THE COURT. [ PROTESTERS PROTESTING ]>>MR. CHAIRMAN, I HOPE THAT TIME WON’T BE SUBTRACTED FROM THEY 30 MINUTES.>>IT WILL NOT BE.>>THANK YOU. SO, JUDGE KAVANAUGH, I’M INTRIGUED BY A COMMENT YOU MADE EARLIER ABOUT THE ROLE OF PRECEDENT. WE’VE HEARD A LOT ABOUT PRECEDENT, WE ALLUDED TO THIS BOOK THAT YOU AND OTHERS, OTHER JUDGES WROTE WITH BRIAN GARNER ON THE LAW OF JUDICIAL PRECEDENT. I CHECKED IT OUT. IT’S 900 PAGES LONG. AND I HAVEN’T READ EVERY PAGE OF IT EITHER.>>I DON’T THINK IT’S MEANT — IT’S NOT MEANT TO BE READ WORD FOR WORD. IT’S A TREATISE WHERE YOU GO TO A SECTION THAT MIGHT BE ON POINT OR SOMETHING.>>BUT LET ME JUST ASK YOU A MORE BASIC QUESTION AND WE CAN WORK OUR WAY INTO THAT. SHOULD — WHEN PEOPLE GO TO COURT, SHOULD THEY EXPECT A DIFFERENT OUTCOME IF THE JUDGE WAS NOMINATED BY A REPUBLICAN FROM A COURT WHERE THE JUDGE WAS NOMINATED BY A DEMOCRAT?>>NO. THAT’S AN IMPORTANT PRINCIPLE OF JUDICIAL INDEPENDENCE AND THE JUDICIAL ROLE. THE JUDGE’S EMPIRE VISION, THAT CHIEF JUSTICE ROBERTS ARTICULATED, AND I’VE 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. AND THAT’S A CRITICAL PRINCIPLE.>>WELL, IT STRIKES ME AS AN IMPORTANT POINT GIVEN THE SUGGESTION THAT ONE OF THE REASONS THAT PEOPLE HAVE OBJECTED TO YOUR NOMINATION IS, I BELIEVE THE QUOTE WAS, YOU HAVE REPUBLICAN BLOOD FLOWING IN YOUR VEINS. STRIKES ME AS STRANGE AND BIZARRE STATEMENT.>>I’VE BEEN A JUDGE FOR 12 YEARS, AND 307 OPINIONS, I’M VERY PROUD OF THAT RECORD AND BEEN AN INDEPENDENT JUDGE FOR 12 YEARS. AS A JUDGE, YOU’RE NOT A REPUBLICAN OR A DEMOCRAT, AS A FEDERAL JUDGE.>>AND YOU TALKED A LITTLE BIT ABOUT THE CONSTITUTIONAL BASIS FOR A JUDGE’S OBLIGATION TO APPLY EXISTING PRECEDENT. COULD YOU EXPAND ON THAT A LITTLE BIT MORE? BECAUSE I THINK MOST PEOPLE ARE UNDER THE IMPRESSION, THIS IS SORT OF A DISCRETIONARY MATTER, AND YOU CAN SORT OF CHERRY-PICK BETWEEN WHAT PRECEDENTS YOU DECIDE TO FOLLOW AND WHICH ONES YOU DON’T FOLLOW.>>WELL, THERE’S BEEN A DEBATE SOME TIMES ABOUT WHAT ARE THE ORIGINS OF PRECEDENT. WHY DO YOU FOLLOW PRECEDENT? AND AS I SEE IT, THERE ARE A NUMBER OF REASONS YOU WOULD CITE. STABILITY, PREDICTABILITY, IMPARTIALITY, RELIANCE INTERESTS. BUT ALL OF THOSE ARE NOT MERE POLICIES IN MY VIEW. AS I SEE IT, THE SYSTEM OF PRECEDENT COMES FROM ARTICLE III ITSELF. WHEN ARTICLE III 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 ABOUT, WHAT DOES THAT ENTAIL? AND YOU LOOK AT THE MEANING, THE MEANING AT THE TIME OF JUDICIAL POWER, AND YOU LOOK, ONE SOURCE OF THAT IS 78. AND THAT IS 78. IT’S WELL EXPLAINED THAT JUDGES MAKE DECISIONS BASEDAS PRECEDENT. AND PRECEDENT, THEREFORE, AS I READ, HAS CONSTITUTIONAL ORIGINS AND CONSTITUTIONAL BASIS IN THE TEXT OF THE CONSTITUTION.>>AND I THINK YOU’VE TOUCHED ON THIS, AS WELL. JUDGES, UNLIKE LEGISLATORS, DON’T RUN FOR ELECTION. THEY DON’T HAVE A PLATFORM. THIS IS WHAT I DO IF ELECTED INTO OFFICE. ONE OF THE MOST IMPORTANT ELEMENTS OF THE — OF LIMITING THE IMPORTANT ROLE OF JUDGES, I THINK IS THAT WE’RE REQUIRED TO DECIDE A CASE ON A CASE-BY CASE BASIS. RATHER THAN ISSUING SOME SORT OF ORACLE, SAYING, HENCEFORTH, THE LAW WILL BE THUS. ASSUMING YOU GET EIGHT OTHER JUDGES ON THE TEAM OF NINE TO AGREE WITH YOU. CAN YOU TALK ABOUT THE IMPORTANCE OF DECIDING CASES ON A CASE-BY-CASE BASIS?>>WE’LL ADD ANOTHER 20 SECOND?>>THANK YOU.>>ABSOLUTELY, SENATOR. IT’S IMPORTANT TO UNDERSTAND AND I THINK SENATOR GRAHAM ALLUDED TO THIS AS WELL, AS JUDGES, YOU JUST DON’T ISSUE POLICIES OR ISSUE OPINIONS OUT OF THE BLUE. YOU DECIDE, AS ARTICLE III SAYS, CASES AND CONTROVERSIES. AND THAT MEANS A PROCESS. AS THEY COME INTO THE FEDERAL TRIAL COURT AND LITIGATE AGAINST ONE ANOTHER. THERE’S A PROCESS THERE, A TRIAL OR SOME REJUDGMENT MOTION. THE DISTRICT JUDGE RENDERS A DECISION. THEN THAT COMES UP TO THE COURT OF APPEALS, IN MY CASE. AND THERE’S BRIEFING AND ORAL ARGUMENT. I LIKE TO SAY, THERE’S A PROCESS. I LIKE TO SAY PROCESS PROTECTS YOU. IT’S ONE OF MY THINGS I ALWAYS LIKE TO KEEP IN MIND. YOU GO THROUGH A PROCESS TO HELP MAKE GOOD DECISIONS, DELIBERATIVE PROCESS. AND WE HAVE A PROCESS, JUDGES ARE VERY FOCUSED ON PROCESS. AND HAVING THAT ORAL ARGUMENT, HAVING THE BRIEFING AND THEN TALKING TO YOUR COLLEAGUES. YOU CHANGE YOUR MIND. SOMETIMES BASED ON THE PROCESS OF COLLEAGUES. THAT PROCESS IS IMPORTANT. AND TO YOUR POINT, YOU’RE DECIDING THAT CASE. YOU WRITE AN OPINION. YOU’RE NOT TRYING TO RESOLVE EVERY ISSUE IMAGINABLE IN THE OPINION. YOU’RE TRYING TO RESOLVE THIS CASE UNDER THE PRINCIPLES OF LAWS IN QUESTION AND DECIDE THAT CASE OR CONTROVERSY. AND THAT’S HOW JUDGES BUILD UP A SYSTEM OF PRECEDENT OVER TIME, BY DECIDING ONE CASE AT A TIME, AND NOT TRYING TO DO MORE THAN THEY CAN OR MORE THAN THEY SHOULD. [ PROTESTERS PROTESTING ]>>JUDGE, DON’T YOU THINK WHAT YOU’VE DESCRIBED FOR US AND DECIDING CASES ON A CASE-BY-CASE BASIS HAVE AN IMPORTANT FOUNDATION IN FAIRNESS? HOW WOULD SOMEBODY FEEL IF THEY KNOW YOU’VE ANNOUNCED IN ALL CASES THAT HAVE TO DO WITH SUBJECT “X,” I’VE MADE UP MY MIND, I DON’T CARE WHAT THE FACTS ARE. ISN’T THAT UNFAIR TO THE LITIGANTS?>>IT CAN BE, WHERE AN OVERBROAD RULING MAY RESOLVE THINGS WHERE PEOPLE WHO ARE AFFECTED BY IT MAY HAVE THOUGHT, I WASN’T PART OF THAT CASE, WHY AM I NOW AFFECTED IN A PARTICULAR WAY. I THINK ONE OF THE THINGS I COULD SAY ABOUT HOW I’VE TRIED TO WRITE MY OPINIONS, THE 300 OPINIONS IS, I’M ALWAYS CONCERNED ABOUT — [ PROTESTERS PROTESTING ]>>I’M ALWAYS CONCERNED ABOUT UNINTENDED CONSEQUENCES. THIS IS ONE OF THE REASONS I GO THROUGH SO MANY DRAFTS IN MY OPINIONS AND REALLY WORK THROUGH THEM, IS EVEN JUST A SLOPPY FOOTNOTE OR AN AMBIGUOUS WORD IN AN OPINION, IT’S TRUE WHEN YOU’RE DRAFTING LAWS HERE, TOO. BUT IF YOU DON’T, YOU’RE CONCERNED ABOUT UNINTENDED CONSEQUENCES, WHICH IS WHY IT’S SO IMPORTANT TO BE CLEAR IN THE OPINIONS AND TO BE EXACTLY PRECISE AND NOT DECIDE TOO MUCH. [ CHANTING: OUR BODIES, OUR CHOICE ]>>JUDGE, LET ME ASK YOU TO TELL US A LITTLE BIT ABOUT SEPTEMBER 11th, 2001. WHERE WERE YOU WHEN YOU HEARD THAT THE PLANES HIT THE WORLD TRADE CENTER IN WASHINGTON, D.C. AND ANOTHER PLANE HIT THE PENTAGON HERE IN WASHINGTON.>>I REMEMBER I WAS — >>NEW YORK, I SHOULD SAY.>>I WAS IN THE WEST WING WHEN IT HIT THE SECOND TOWER. I REMEMBER IN THE UPSTAIRS COUNSEL’S OFFICE WITH A COUPLE OTHER PEOPLE IN THE COUNSEL’S OFFICE. AND THEN WE WERE USHERED DOWNSTAIRS AND THEN TOLD TO GET OUT, RUN OUT, WAS THERE WAS FEAR, AS WE LATER LEARNED ABOUT FLIGHT 93, DON’T KNOW IF IT WAS HEADED TO THE CAPITOL OR THE WHITE HOUSE OR SOME OTHER TARGET, OF COURSE, AND THE HEROS OF FLIGHT 93 SAVED, SAVED SO MANY AMERICANS, THE SACRIFICE THAT, OF COURSE, WE STILL ALL CELEBRATE IN THE SENSE OF CELEBRATING THEIR LIVES AND HEROISM FOR SAVING ALL OF US HERE IN WASHINGTON. BUT ENDED UP OUT IN LAFAYETTE PARK WITH THE REST OF THE STAFF AND BEWILDERED AND CHANGED AMERICA. CHANGED THE WORLD. CHANGED THE PRESIDENCY. CHANGED CONGRESS. CHANGED THE COURTS, ALL THE ISSUES THAT CAME BEFORE US. IT WAS A NEW KIND OF WAR. AS PRESIDENT BUSH DESCRIBED, WITH AN ENEMY THAT DIDN’T WEAR UNIFORMS, AND THAT WOULD ATTACK CIVILIANS AND SO NEW KINDS OF LAWS HAD TO BE CONSIDERED AND CONGRESS HAD TO WORK THROUGH THAT AND PRESIDENT BUSH HAD TO FOCUS SO INTENTLY, AS I’VE SAID BEFORE, MY REMEMBRANCE IS THAT ON SEPTEMBER 12th, HIS BASIC MENTALITY WAS, THIS WILL NOT HAPPEN AGAIN. AND HAVING TRAVELED WITH HIM FROM 2003 TO 2006, EVERYWHERE, AS STAFF SECRETARY AND SEEING HIM UP CLOSE, I STILL THINK EVERY DAY I WAS WITH HIM DURING THOSE YEARS, EVERY MORNING WHEN I GOT UP, IT WAS STILL SEPTEMBER 12th, 2001, THIS WILL NOT HAPPEN AGAIN. AND TO SEE THAT FOCUS, AND OF COURSE, HE HAD TO DO ALL THE OTHER THINGS OF THE PRESIDENCY AND ALL THE OTHER CEREMONIAL ASPECTS. BUT HE WAS SO FOCUSED ON THAT AND I’M SURE THAT’S BEEN TRUE OF THE SECEDING PRESIDENTS AS WELL, BECAUSE THE THREAT, THE THREAT STILL EXISTS, OF COURSE.>>WELL, AS WE CAME TO LEARN, OSAMA BIN LADEN AND AL QAEDA WAS RESPONSIBLE FOR THAT ATTACK AND HAS NOW MORPHED INTO OTHER ORGANIZATIONS LIKE ISIS AND THE LIKE. BUT I WANT TO ASK YOU, YOU HAD TO. THEN SIT IN JUDGMENT, LATER ON, IN A CASE, THE HAMDAN CASE, WHICH YOU’VE ALLUDED TO EARLIER, WHERE THE DEFENDANT WAS OSAMA BIN LADEN’S PERSONAL BODYGUARD AND DRIVER. HE WAS CAPTURED BY U.S. FORCES IN AFGHANISTAN AFTER 9/11 AND DETAINED IN GUANTANAMO BAY. HE SUBSEQUENTLY WENT THROUGH A MILITARY TRIBUNAL AND THEN THAT CASE WAS APPEALED TO YOUR COURT. AND JUST 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 BODYGUARD AND DRIVER, CORRECT?>>THAT IS CORRECT. I WROTE THE MAJORITY OPINION.>>HOW COULD YOU DO THAT? HOW COULD YOU POSSIBLY DO THAT?>>THE RULE OF LAW APPLIES TO ALL WHO COME BEFORE THE COURTS OF THE UNITED STATES.>>EVEN AN ENEMY COMBATANT?>>EQUAL JUSTICE UNDER LAW. EVERYONE IS ENTITLED — >>EVEN A NON-CITIZEN?>>YES. NON-CITIZENS WHO ARE TRIED IN U.S. COURTS, OF COURSE, HAVE THE CONSTITUTIONAL RIGHTS. AND REALLY, MY MODEL ON THAT JUDICIAL MODEL FOR THINKING ABOUT SOMETHING LIKE THAT, BECAUSE I THOUGHT ABOUT WHAT YOU’RE ASKING ABOUT. JUSTICE JACKSON, OF COURSE, ROBERT JACKSON, WHO HAD BEEN FRANKLIN ROOSEVELT’S ATTORNEY GENERAL IN THE CORAMATSU CASE, EVEN THOSE THAT WAS ONE OF THE POLICIES, THE MAJORITY OPINION NOW OVERRULED, BUT JUSTICE JACKSON DISSENTED AND RULED AGAINST THE ROOSEVELT POLICY. JUSTICES CLARK AND BURTON, TWO APPOINTEES OF PRESIDENT TRUMAN ARE THE TWO DECIDING VOTES IN YOUNGSTOWN STEEL. THAT’S A 6-3 DECISION. THOSE TWO WERE THE DECIDING VOTES. THOSE WERE BOTH APPOINTEES OF PRESIDENT TRUMAN. AND IT’S WARTIME AGAINST KOREA. THEY GET TO THE SUPREME COURT. THEY’RE THE DECIDING VOTES IN THE YOUNGSTOWN STEEL CASE, WHICH WAS AN EXTRAORDINARY NATIONAL MOMENT. ONE OF THE GREAT MOMENTS. SO YOUR CONCEPTION OF THE ROLE OF A JUDGE, IT’S ABOUT THE LAW. THAT’S DISTINCT FROM POLICY AND TOUR JUDICIARY DEPENDS ON HAVING PEOPLE IN IT. AND WE ARE FORTUNATE TO HAVE A WONDERFUL FEDERAL JUDICIARY. TO ANYONE WHO COMES BEFORE THE COURT, EVEN THE MOST UNPOPULAR POSSIBLE DEFENDANT IS STILL ENTITLED TO DUE PROCESS AND THE RULE OF LAW. AND I’VE TRIED TO ENSURE THAT AS A JUDGE.>>WELL, IT’S HARD FOR ME TO IMAGINE A MORE UNPOPULAR DEFENDANT THAN OSAMA BIN LADEN’S DRIVER AND PERSONAL BODYGUARD. SO I FIND THE SUGGESTION THAT SOMEHOW YOU ARE PREJUDICED AGAINST THE SMALL GUY IN FAVOR OF THE BIG GUY OR THAT YOU ARE PICKING AND CHOOSING WHO YOU’RE GOING TO 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 HAD ALONG WITH SO MANY PEOPLE YOU WORKED WITH CLOSELY WITH IN THE WHITE HOUSE ON SEPTEMBER 11th, AND YOU CAN THEN AS A JUDGE, AFTER YOU PUT ON THE BLACK ROBE AND TAKE THE OATH OF OFFICE, YOU COULD THEN RENDER A JUDGMENT IN FAVOR OF BIN LADEN’S BODYGUARD AND DRIVER, BECAUSE YOU APPLIED THE LAW EQUALLY TO EVERYBODY THAT COME TO YOUR COURT. SOMETIMES THE — LET ME ALLUDE TO SOMETHING SENATOR SASSE, I THINK, WAS ELOQUENTLY SPEAKING ABOUT YESTERDAY IN TERMS OF THE SEPARATION OF POWERS. VERY IMPORTANT ASPECT OF OUR CONSTITUTIONAL SYSTEM AND ONE THAT I KNOW YOU’VE DEALT WITH OFTEN, ON THE D.C. CIRCUIT COURT OF APPEALS. AND THAT HAS TO DO WITH WHAT I’VE READ SOME JUDGES TALK ABOUT, SYMPTOM CONSTITUTIONAL SCHOLARS TALK ABOUT A CONVERSATION BETWEEN THE BRANCHES. IN OTHER WORDS, WHEN THE D.C. CIRCUIT COURT OR THE SUPREME COURT DECIDES A CASE, THEY FINALLY DECIDE THAT CASE, BUT THEY DON’T FINALLY DECIDE WHAT THE POLICY IS.>>THAT’S RIGHT.>>FOR THE UNITED STATES OR THE AMERICAN PEOPLE. CORRECT?>>THAT’S CORRECT, SENATOR. AND I THINK ONE OF THE IMPORTANT THINGS THAT JUDGES CAN DO IS ADHERE, OF COURSE, TO THE LAWS PASSED BY CONGRESS. BUT 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, OR IF THERE’S — SOMETIMES THERE’LL BE A HOLE IN A STATUTE OR SOMETHING THAT SEEMS UNINTENDED IN A STATUTE AND TO ALERT CONGRESS TO THAT. CHIEF JUDGE KATZMAN OF THE SECOND CIRCUIT, HE’S A GREAT JUDGE I SERVED WITH ON THE JUDICIAL BRANCH COMMITTEE, AND HE HAS WRITTEN A BOOK ABOUT STATUTORY INTERPRETATION, BUT HE’S ALSO BEEN A LEADER OF A PROJECT TO MAKE SURE THAT CONGRESS IS ALERTED OF POTENTIAL STATUTORY ISSUES THAT LOOK LIKE THEY MIGHT HAVE BEEN THINGS THAT, PERHAPS, CONGRESS WOULD NOT HAVE INTENDED, OR AT LEAST, CONGRESS WOULD WANT BROUGHT TO ITS ATTENTION, SO IT COULD FIX. [ PROTESTER PROTESTING ] SO THAT’S BEEN VERY SUCCESSFUL. IT’S ONE, EVEN WITHOUT THAT PROJECT, HOW YOU WRITE YOUR OPINIONS, I THINK, IS IMPORTANT. WE DON’T UPDATE THE STATUTES. YOU UPDATE THE STATUTES. BUT IT’S GOOD FOR US TO WRITE OUR OPINIONS IN A WAY THAT POINTS OUT POTENTIAL ISSUES THAT CONGRESS MIGHT WANT TO BE AWARE OF.>>AND THAT’S PART OF THE CONVERSATION BETWEEN THE TWO CO-EQUAL BRANCHES OF GOVERNMENT.>>ABSOLUTELY. AND I THINK THAT’S AN IMPORTANT DIALOGUE TO HAVE BETWEEN CONGRESS AND THE JUDICIARY AND THE BACK AND FORTH IS VERY IMPORTANT ON THAT FRONT. AND I THINK THAT’S ONE THING I’M ALWAYS THINKING ABOUT IN MY OPINIONS. YOU WHERE THE LAWS, BUT IF THE LAW LOOKS LIKE THERE’S SOME ISSUE WITH IT, SOME FLAW OR SOMETHING THAT MIGHT BE AN UNINTENDED CONSEQUENCE IN THE OPINION, YOU CAN IDENTIFY IT. AND THAT CAN BE SOMETHING THAT CONGRESS CAN TURN ITS ATTENTION TO, SOMETIMES. BECAUSE STAFF — I’M WELL AWARE THAT STATUTORY DRAFTING IS A VERY DIFFICULT PROCESS. THAT’S SOMETHING, I THINK, JUDGES TO ACTUALLY NEED TO BE MORE AWARE OF. HOW DIFFICULT THE LEGISLATIVE DRAFTING PROCESS IS. EVEN IF YOU’RE DOING IT AS ONE PERSON, IT WOULD BE DIFFICULT. BUT THEN YOU’RE DOING IT AS A COLLECTIVE BODY AND YOU’RE DOING IT WITH THE HOUSE AND THE PRESIDENT INVOLVED. THERE ARE A LOT OF PEOPLE IN IT, AND IT’S HARD TO HAVE, WITH ALL THE COMPROMISES INHERENT IN THAT, IT’S HARD OF CRYSTAL CLARITY ON EVERY POSSIBLE TOPIC. SO AS JUDGES, NUMBER ONE, WE HAVE TO RECOGNIZE THE PROCESS YOU GO THROUGH AS LEGISLATORS. THAT MEANS ADHERE TO THE COMPROMISES THAT ARE MADE, THE TEXT, AS WRITTEN, BUT ALSO, WHEN WE WRITE OUR OPINIONS, IF THERE SEEMS TO BE SOMETHING THAT’S NOT WORKING OUT, IT’S APPROPRIATE, I THINK, FOR JUDGES TO POINT THAT OUT IN THEIR OPINIONS.>>AND OF COURSE, EVEN IF IT’S THE CONSTITUTIONAL BASIS FOR YOUR DECISION, THAT COULD BE CHANGED BY CONSTITUTIONAL AMENDMENT, CORRECT?>>WELL, THAT’S 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 TEN AMENDMENTS. SO THERE WAS A LOT OF DISCUSS ABOUT THE RATIFYING AMENDMENTS ABOUT HAVING A BILL OF RIGHTS. AND THAT WAS QUICKLY DONE AT FIRST CONGRESS IN NEW YORK IN 1789, OF COURSE, BY JAMES MADISON TAKING THE LEAD ON THAT. BUT, SO, TOO, THEY DID NOT THINK IT WAS PERFECT. THEY HAD AN AMENDMENT PROCESS THAT SPECIFIED IN ARTICLE V OF THE CONSTITUTION. AND THAT AMENDMENT PROCESS WAS INTENDED TO BE USED. AND WE’VE SEEN IT USED TO CORRECT STRUCTURAL ISSUES, THE 12th AMENDMENT ON PRESIDENTIAL ELECTIONS, THE 17th AMENDMENT, OF COURSE, AS YOU ALL KNOW WELL, ON SENATE ELECTIONS. THE 22nd AMENDMENT, WHICH LIMITED PRESIDENTS TO ONLY TWO TERMS. THE 25th AMENDMENT, WHICH CORRECTED SOME ISSUES WITH RESPECT TO VICE PRESIDENCY. AND THE 14th, 15, AND 16th AMENDMENTS, THE MOST IMPORTANT AMENDMENTS IN THE CONSTITUTION, IN MY RESPECTS, BECAUSE IT BROUGHT THE PROMISE OF RACIAL EQUALITY THAT HAD BEEN DENIED AT THE TIME OF THE ORIGINAL CONSTITUTION INTO THE TEXT OF THE CONSTITUTION. SO THE JOB OF THE PEOPLE, WHICH IS THE CONGRESS AND THE STATE LEGISLATURES, IS TO AMEND THE CONSTITUTION. IT’S NOT THE JOB OF JUDGES TO DO THAT ON OUR OWN. AND OBVIOUSLY, THAT’S A BASIC DIVIDE OF CONSTITUTIONAL RESPONSIBILITY THAT IS SET FORTHRIGHT IN THE TEXT OF ARTICLE V OF THE CONSTITUTION.>>I CAN’T REMEMBER WHO SAID IT. I THINK JUSTICE JACKSON, PERHAPS, WHO SAID THE SUPREME COURT IS ALWAYS RIGHT — IS NOT FINAL BECAUSE IT’S ALL RIGHT, IT’S RIGHT BECAUSE IT’S FINAL. OR WORDS TO THAT EFFECT. BUT I ALWAYS THOUGHT, 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 AS A CONSTITUTIONAL MANNER, THE WAY THE CONSTITUTION IS BEING INTERPRETED, IT’S WITHIN OUR POWER AS THE AMERICAN PEOPLE TO CHANGE OUR OWN CONSTITUTION BY AMENDMENT. THERE’S PROVISIONS IN THE CONSTITUTION ITSELF TO DO THAT. IT’S 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’S 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, OUR RESPONSIBILITY, OUR AUTHORITY THAT PROVIDES LEGITIMACY TO THE GOVERNMENT ITSELF. YOU AGREE WITH THAT?>>I AGREE. OF COURSE, SENATOR, WE THE PEOPLE, FORMED THE CONSTITUTION OF THE UNITED STATES AND THE SOVEREIGNTY THAT THE PEOPLE ARE THE ULTIMATELY AUTHORITY. AND YOU’RE RIGHT ABOUT JUSTICE JACKSON’S LINE. I THINK IT IS A CLEVER LINE, BUT ULTIMATELY, I AGREE WITH YOU. I’VE ALWAYS HAD A LITTLE BIT OF A PROBLEM WITH THAT LINE, BECAUSE WE’RE INFALLIBLE BECAUSE WE’REINFALLIBLE BECAUSE WE’RE FINAL. NO, BOTH PARTS OF THAT ARE WRONG IN SOME SENSE, BECAUSE I NEVER WANT TO THINK OF THE COURT AS INFALLIBLE, AND I ALSO NEVER WANT TO THINK OF IT NECESSARILY IN THE WAY YOU’RE DESCRIBING EITHER BECAUSE THERE IS THE PEOPLE ALWAYS HAVE AN ABILITY TO CORRECT THROUGH THE AMENDMENT PROCESS. NOW, THE AMENDMENT PROCESS IS HARD AND HASN’T BEEN USED AS MUCH IN RECENT DECADES BUT OF COURSE AT THE BEGINNING OF THE COUNTRY, THE AMENDMENTS WERE CRITICAL, AND DRED SCOTT, OF COURSE, THE AWFUL EXAMPLE OF JUST A HORRIFIC SUPREME COURT DECISION THAT IS THEN CORRECTED IN PART, AT LEAST ON PAPER, IN THE 14th AMENDMENT, 13th, 14th AMENDMENTS, AND THAT’S AN IMPORTANT EXAMPLE, I THINK, OF YOUR — PROBABLY THE BEST EXAMPLE, FRANKLY, OF THE POINT YOU’RE MAKING ABOUT THE PEOPLE BEING ABLE TO RESPOND TO HORRIFIC DECISION OF THE SUPREME COURT.>>IN FAIRNESS TO JUSTICE JACKSON, MAYBE HE WAS THINKING AS I ORIGINALLY THOUGHT ABOUT THE EXPRESSION AS BEING BINDING ON LOWER COURT JUDGES, TRIAL JUDGES, APPELLATE COURT JUDGES AND THE SUPREME COURT DOES HAVE THE FINAL WORD IN THAT FOOD CHAIN OF THE JUDICIARY BUT NOT IN TERMS OF THE FUNDAMENTAL AUTHORITY OF THE AMERICAN PEOPLE. TO DECIDE WHAT LAWS SHOULD GOVERN THEM.>>I THINK THAT’S PROBABLY RIGHT, SENATOR. I DON’T WANT TO BE — JUSTICE JACKSON IS ONE OF OUR GREATEST JUSTICES SO TO QUESTION ANYTHING IS, YOU KNOW, WHETHER IT WAS DISSENT OR BARNETT, JUSTICE JACKSON WROTE SOME OF THE GREATEST OPINIONS AND THE EXAMPLE OF JUDICIAL OPINION AS WELL BUT ON THAT ONE LINE, I TAKE YOUR POINT.>>LET ME JUST ASK YOU ONE LAST QUESTION. WE’VE TALKED A LOT ABOUT THE ROLE OF PRECEDENT, AND SENATOR FEINSTEIN TALKED ABOUT STARE DECISIS BASICALLY CASES THAT HAVE BEEN DECIDED OR DECIDE THE PRECEDENT FOR FUTURE CASES, BUT ON OCCASION, THE SUPREME COURT HAS DECIDED THAT ITS DECISIONS WERE JUST WRONG AND CHOSEN TO OVERRULE THOSE PREVIOUS DECISIONS. I’M THINKING OF PLESSY V. FERGUSON, FOR EXAMPLE, THAT WAS A SCAR ON OUR BODY POLITIC THAT SAID SEPARATE BUT EQUAL EDUCATIONAL INSTITUTIONS MET THE REQUIREMENT OF THE 14th AMENDMENT. BUT CAN YOU TALK ABOUT THE EXTRAORDINARY CIRCUMSTANCES UNDER WHICH THE SUPREME COURT WOULD REVISIT A PRECEDENT.>>WELL, BROWN V. BOARD OF EDUCATION, OF COURSE, OVERTURNED PLESSY, AND PLESSY WAS WRONG THE DAY IT WAS DECIDED. IT WAS INCONSISTENT WITH TEXT AND MEANING OF THE 14th AMENDMENT, WHICH GUARANTEED EQUAL PROTECTION, AND THE SUPREME COURT IN THE WEST VIRGINIA CASE IN 1880 JURY SELECTION CASE HAD SAID, WHAT IS THIS AMENDMENT BUT THAT THE LAW SHALL BE THE SAME FOR THE BLACK AND THE WHITE AND THE SUPREME COURT, UNFORTUNATELY, BACKTRACKED FROM THAT CLEAR PRINCIPLE IN THE PLESSY DECISION IN A HORRIFIC DECISION WHICH ALLOWED SEPARATE BUT EQUAL AND THEN BROWN V. BOARD CORRECTED THAT IN 1954. OF COURSE, CORRECTED IT ON PAPER. IT’S STILL DECADES AND WE’RE STILL SEEKING TO ACHIEVE RACIAL EQUALITY, THE LONG MARCH FOR RACIAL EQUALITY IS NOT OVER, BUT BROWN V. BOARD, AS I’VE SAID PUBLICLY MANY TIMES BEFORE, THE SINGLE GREATEST MOMENT IN SUPREME COURT HISTORY BY, IN SO MANY WAYS, THE UNANIMITY THAT CHIEF JUSTICE WARREN ACHIEVED IS JUST 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 V. BOARD OF EDUCATION IS SO CRITICAL TO REMEMBER AND THE OPINION IS SO INSPIRATIONAL. I ENCOURAGE EVERYONE — IT’S A RELATIVELY SHORT OPINION, BUT IT’S VERY POWERFUL, VERY FOCUSED ON THE TEXT OF THE EQUAL PROTECTION CLAUSE AND CORRECTING THAT AWFUL PRECEDENT OF PLESSY VERSUS FERGUSON, A GREAT EXAMPLE OF LEADERSHIP AND JUST THE LAST POINT I’LL MENTION ON PROCESS, THEY WERE — IT WAS — THEY KNEW THEY WERE GOING TO FACE POPULAR BACKLASH. THEY KNEW THEY WERE — BUT THEY STILL DID IT SO THAT SHOWS INDEPENDENCE AND FORTITUDE, BUT THEY ALSO HAD REARGUMENT, WHICH I THINK IS A GOOD — THEY HAD ARGUMENT ORIGINALLY AND THEN DECIDED THERE’S A LOT GOING ON AND MAYBE NOT EVERYONE’S SEEING IT THE SAME WAY AS THE JUSTICES AND THEY HAD A REARGUMENT, WHICH I THINK IS A GOOD LESSON ON PROCESS PROTECTING US AND KEEP WORKING AT IT AND KEEP WORKING AT IT AND SEE THE TEAM OF NINE THAT I MENTIONED YESTERDAY AND I MENTION TODAY, KEEP WORKING AT IT AS A TEAM OF NINE, AND THEY CAME OUT UNANIMOUS. CHIEF JUSTICE WARREN, THANKFULLY, LED THE COURT IN THAT DECISION. THAT WAS A GREAT MOMENT, THE GREATEST MOMENT IN SUPREME COURT HISTORY.>>THANK YOU, JUDGE.>>THANK YOU. I AWARDED TWO ADDITIONAL MOMENTS TO SENATOR CORNYN BECAUSE HE WAS INTERRUPTED, BY MY COUNT, FIVE TIMES DURING HIS SYSTEM. SENATOR WHITEHOUSE IS NEXT.>>GOOD AFTERNOON, JUDGE KAVANAUGH. ARE YOU GOOD FOR ANOTHER HALF HOUR?>>I’M GOOD.>>ALL RIGHT, GOOD. IN MY OFFICE, YOU TOLD ME THAT YOU COULD PROVIDE NO ASSURANCE TO ME THAT YOU WOULD UPHOLD A STATUTE REQUIRING INSURANCE COMPANIES TO PROVIDE COVERAGE FOR PREEXISTING MEDICAL CONDITIONS. IS THAT STILL TRUE HERE IN PUBLIC?>>WELL, I THINK, SENATOR, IT’S IMPORTANT TO UNDERSTAND THE PRINCIPLE AT PLAY HERE.>>WE’VE TALKED A LOT ABOUT THAT, BUT IS THE STATEMENT YOU MADE — HAVE I RECITED IT ACCURATELY AND IS IT STILL TRUE TODAY, THAT YOU CAN GIVE NO ASSURANCE THAT YOU WOULD UPHOLD A STATUTE?>>JUDGES LIKE TO EXPLAIN THEIR DECISIONS.>>BUT I GET TO ASK THE QUESTIONS. USUALLY YOU GET THE ASK THE QUESTIONS BECAUSE YOU’RE THE APPELLATE QUESTIONS BUT TODAY, FOR HALF AN HOUR, I GET TO. IS IT STILL TRUE THAT YOU CAN GIVE NO ASSURANCE THAT YOU WOULD UPHOLD A STATUTE REQUIRING INSURANCE COMPANIES TO COVER PREEXISTING MEDICAL CONDITIONS.>>SO, TO PREPARE FOR THIS MOMENT, I WENT BACK AND READ — >>I REALLY WOULD LIKE YOU TO BE AS CAREFUL WITH YOUR TIME AS YOU CAN, BECAUSE I HAVE A VERY LIMITED AMOUNT OF TIME WITH YOU, SO THE QUICKER YOU CAN GET TO THE ANSWER, IT’S — IT COULD BE AS SIMPLE AS YES OR NO.>>BUT I CAN ENHANCE YOUR UNDERSTANDING OF MY ANSWER IF I EXPLAIN IT, I THINK.>>I REALLY JUST WANT YOUR ANSWER ON THE RECORD. I THINK I’M PRETTY CAPABLE OF UNDERSTANDING IT ON MY OWN.>>WELL, THEN, EVERYONE TO UNDERSTAND MY ANSWER. SO, THERE’S A — THERE’S NOMINEE PRECEDENT OF HOW JUSTICES AND NOMINEES IN MY POSITION HAVE ANSWERED IN THE PAST. I’LL BE SUCCINCT IF I CAN. AND ALL EIGHT SITTING JUSTICES — >>YOU SAID THIS IN THE HEARING SO PEOPLE WHO ARE LISTENING AND INTERESTED HAVE ALREADY HEARD YOU SAY THIS.>>WELL, I THINK IT’S REALLY IMPORTANT.>>SAY IT AGAIN, THEN.>>I WANT TO UNDERSCORE IT. ALL EIGHT SITTING JUSTICES OF THE SUPREME COURT HAVE MADE CLEAR THAT IT WOULD BE INCONSISTENT WITH JUDICIAL INDEPENDENCE, ROOTED IN ARTICLE III, TO PROVIDE ANSWERS ON CASES OR ISSUES THAT COULD COME BEFORE US. JUSTICE GINSBURG, JUSTICE KAGAN TALKING ABOUT PRECEDENT, NO THUMBS UP OR DOWN. AND I WENT BACK. JUSTICE THURGOOD MARSHALL WAS ASKED REPEATEDLY IN HIS HEARING — >>EVERYBODY ELSE DOES IT AND YOUR ANSWER IS STILL NO.>>THE REASON EVERYONE DOES IT IS ROOTED IN JUDICIAL INDEPENDENCE AND MY RESPECT FOR PRECEDENT. IT’S MY RESPECT FOR JUDICIAL INDEPENDENCE SO I CAN’T GIVE ASSURANCES ON A SPECIFIC HYPOTHETICAL.>>OKAY. THANK YOU. LET ME GO ON TO ANOTHER SUBJECT, WHICH IS EXECUTIVE PRIVILEGE. EXECUTIVE PRIVILEGE IS A PRINCIPLE THAT IS FOUNDED IN THE CONSTITUTION AND IN THE SEPARATION OF POWERS, CORRECT?>>THE SUPREME COURT SO RULED IN THE UNITED STATES VERSUS RICHARD NIXON CASE, SO THAT WAS THE FIRST — THE KEY ISSUE IN UNITED STATES — >>THAT’S ALL RIGHT. I JUST NEED THE ANSWER TO THE QUESTION AND YOU’VE ANSWERED IT.>>OKAY. THE SOURCE IS IMPORTANT.>>THE — AS A PRIVILEGE, IT NEEDS TO BE ASSERTED, DOES IT NOT? THAT’S TRUE OF PRIVILEGES, GENERALLY?>>I DON’T KNOW WHERE THIS IS GOING, BUT THE — >>IT’S A PRETTY STRAIGHTFORWARD QUESTION. DON’T PRIVILEGES NEED TO BE ASSERTED IN ORDER TO APPLY?>>WELL, PRIVILEGES ARE RECOGNIZED.>>ONCE THEY’RE ASSERTED.>>I THINK AS A GENERAL PROPOSITION.>>FAIR ENOUGH. WHAT I’M ASKING IS A GENERAL PROPOSITION.>>IN A ATTORNEY-CLIENT PRIVILEGE, IT’S ASSERTED.>>AND WHO ASSERTS EXECUTIVE PRIVILEGE?>>ORDINARILY — WELL, THAT IS A COMPLICATED QUESTION, SENATOR, ACTUALLY.>>WHO DOES IT COME BACK TO? ULTIMATELY, WHO ASSERTS EXECUTIVE PRIVILEGE?>>SO, IT DEPENDS WHAT YOU’RE TALKING ABOUT. SO, WHAT KIND OF EXECUTIVE BRANCH DOCUMENT YOU’RE TALKING ABOUT, IT DEPENDS. IN MY EXPERIENCE.>>ULTIMATELY, IT’S THE PRESIDENT.>>THERE’S NOT AS MUCH PRECEDENT ON THAT. THERE’S SOME. THE SUPREME COURT — THIS WAS — THE SUPREME COURT IN THE UNITED STATES V. RICHARD NIXON — >>ISN’T IT FAIR TO SAY THAT EXECUTIVE PRIVILEGE BELONGS TO THE PRESIDENT OF THE UNITED STATES, THE CHIEF EXECUTIVE?>>YEAH, IT CAN ALSO BELONG TO THE FORMER PRESIDENT IN THE CASE OF FORMER PRESIDENTIAL RECORDS. THAT’S ONE CAVEAT THAT I WANT TO PUT ON THAT.>>FAIR CAVEAT. IS THE ASSERTION OF EXECUTIVE PRIVILEGE BY THE PRESIDENT SUBJECT TO USUALLY REVIEW?>>WELL, OF COURSE, BECAUSE UNITED STATES — UNDER THE PRECEDENT, UNITED STATES V. RICHARD NIXON, SAID TWO THINGS. IT SAID ONE, THE EXECUTIVE PRIVILEGE IS CONSTITUTIONALLY ROOTED. THE SPECIAL PROSECUTOR IN THAT CASE ARGUED THAT ACTUALLY THERE WAS NO SUCH THING AS EXECUTIVE PRIVILEGE. AND THE SUPREME COURT REJECTED THAT ARGUMENT AND HELD THAT THE EXECUTIVE PRIVILEGE IS ROOTED IN THE SEPARATION OF POWERS AND IN ARTICLE II BUT SECONDLY — >>THE REASON I’M ASKING DOESN’T HAVE MUCH TO DO WITH YOU. IT GOES BACK TO A POINT THAT WE WERE TALKING ABOUT EARLIER IN THE HEARING, WHICH IS THAT WE HAVE RECEIVED HUNDREDS AND HUNDREDS OF PAGES OF DOCUMENTS OF YOUR RECORD THAT LOOK LIKE THIS. THEY BOTH SAY, COMMITTEE CONFIDENTIAL ACROSS THEM AT AN ANGLE, AND THEN ACROSS THE FRONT, THEY SAY, CONSTITUTIONAL PRIVILEGE. AND AS A MEMBER OF THE SENATE, THIS IS NOT A QUESTION, I’M SPEAKING TO MY COLLEAGUES, I FIND MYSELF IN A QUANDARY HERE ABOUT BEING DENIED THOSE PARTICULAR DOCUMENTS, BECAUSE I CANNOT FIND ANY ASSERTION OF THE PRIVILEGE THESE DOCUMENTS JUST SUDDENLY APPEARED, AND SOMEBODY HAD PUT, CONSTITUTIONAL PRIVILEGE ON THE PAGE AND WIPED OUT ALL THE TEXT THAT WAS ON THE PAGE, AND MY UNDERSTANDING IS THAT THERE’S ORDINARILY A PROCESS FOR GETTING TO THAT DETERMINATION THAT ALLOWS FOR, ULTIMATELY, JUDICIAL REVIEW, AND WE HAVE FAILED TO GET SUBPOENAS OUT OF THE COMMITTEE FOR DOCUMENTS, SO WE CAN’T TRIGGER IT THAT WAY, AND THERE’S NO APPARENT ASSERTION OF EXECUTIVE PRIVILEGE THAT I CAN FIND IN THE RECORD OF HOW THIS PARTICULAR PAPER GOT HERE. SO, I JUST WANTED TO ESTABLISH SOME OF THE BASIC GROUND RULES OF EXECUTIVE PRIVILEGE WITH YOU, BECAUSE I THINK WE AGREE ON THAT. I THINK THAT’S BASICALLY COMMONLY AGREED AND PUT THAT INTO THE CONTEXT OF WHAT WE ARE LOOKING AT AND PARTICULARLY WITH RESPECT TO CHAIRMAN LEAHY’S QUESTIONING EARLIER, IF SOME OF THE DOCUMENTS HE’S LOOKING FOR HAVE NOW BEEN PROTECTED BY THIS NONASSERTION ASSERTION OF EXECUTIVE PRIVILEGE, WE HAVE A PROBLEM. IT IS A CONTINUING PROBLEM IN THE COMMITTEE. WE’VE HAD OTHER WITNESSES COME AND DO NONASSERTION ASSERTIONS OF EXECUTIVE PRIVILEGE, AND SO I’M SORRY TO DRAG COMMITTEE BUSINESS BEFORE YOU, BUT I DO THINK IT IS IMPORTANT THAT WE GET THIS RIGHT.>>CAN I MAKE ONE ADDENDUM BASED ON MY EXPERIENCE FROM THE TIME WHICH IS I DON’T THINK FORMAL ASSERTIONS USUALLY OCCUR UNTIL AFTER THERE HAS BEEN A SUBPOENA, AT LEAST FROM MY TIME.>>WHICH IS WHY NOT BEING ABLE TO GET A SUBPOENA KIND OF B OLLOCKS UP THE PROCESS, YES INDEED. THE ROLE OF THE FEDERALIST SOCIETY IN BRINGING YOU HERE TODAY HAS BEEN OF INTEREST TO ME. AS YOU KNOW, WE SPOKE ABOUT IT QUITE A LOT WHEN YOU AND I MET IN MY OFFICE. MR. McGAHN, SITTING VERY PATIENTLY BEHIND YOU, I CAN SEE HIM OVER YOUR SHOULDER, HAS SAID THAT THE FEDERALIST SOCIETY WAS IN SOURCED INTO THE WHITE HOUSE TO MAKE THESE RECOMMENDATIONS, SPECIFICALLY TO MAKE THE RECOMMENDATION THAT YOU SHOULD BE THE NOMINEE. YOU HAVE SAID THIS REGARDING PRESIDENT BUSH. THAT HE THOUGHT PFS, 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, SPEAKING, I GUESS, TO THE FEDERALIST SOCIETY, NATIONAL LAWYERS CONVENTION. ON ANOTHER OCCASION, YOU WROTE A DRAFT SPEECH FOR ATTORNEY GENERAL GONZALEZ OR WHITE HOUSE COUNSEL GONZALEZ D PROBABLY WHITE HOUSE COUNSEL GONZALEZ, LOOKING AT THE DATE, TO DELIVER TO THE FEDERALIST SOCIETY, AND YOU SAID IN THAT SPEECH, AS A MATTER OF CONSTITUTIONAL PRINCIPLE, IT IS SIMPLY INAPPROPRIATE, WE BELIEVE, TO AFFORD ANY OUTSIDE GROUP A QUASI-OFFICIAL ROLE IN THE PRESIDENT’S NOMINATION PROCESS. HOW DO YOU SQUARE THOSE TWO COMMENTS ABOUT THE ROLE OF THE AMERICAN BAR ASSOCIATION IN THE NOMINATION PROCESS WITH THE ROLE OF THE FEDERALIST SOCIETY IN YOUR NOMINATION PROCESS? ASSUMING THAT MR. McGAHN WAS SPEAKING ACCURATELY WHEN HE SAID THEY HAD BEEN INSOURCED TO THE WHITE HOUSE FOR THIS PROCESS.>>SO, I CAN SPEAK TO THE ABA PART OF THAT. PRESIDENT BUSH, IN 2001, HAD TO MAKE A DECISION OF HOW THE ABA SHOULD PLAY ITS USUAL RATING ROLE WITH RESPECT TO NOMINEES, AND THE ABA TAKES FILES AMICUS BRIEFS AND TAKES POLICY POSITIONS ON ISSUES, AND THEREFORE, AFTER SOME DELIBERATION, IT WAS DECIDED THAT THERE WAS NOTHING WRONG WITH THE ABA RATING THE NOMINEES, BUT TO GIVE AN ORGANIZATION THAT FILES AMICUS BRIEFS AND TAKES POLICY POSITIONS A PREFERRED ROLE IN THE CONSTITUTIONAL NOMINATION PROCESS WAS UNFAIR IN SOME WAYS AND FAVORING — >>WOULD IT BE A FAIR DESCRIPTION OF THE FEDERALIST SOCIETY’S ROLE IN YOUR SELECTION OF THE NOMINEE TO SAY THAT IT WAS PREFERRED OVER OTHER GROUPS?>>WELL, MY EXPERIENCE WAS WHEN JUSTICE KENNEDY RETIRED ON THE WEDNESDAY, MR. McGAHN CALLED ME LATER THAT AFTERNOON, SAID WE NEED TO TALK ON FRIDAY. HE CAME OVER TO MY OFFICE ON FRIDAY EVENING OR LATE AFTERNOON. WE TALKED FOR THREE OR FOUR HOURS, INTERVIEW AND GOING THROUGH THE USUAL KINDS OF QUESTIONS YOU WOULD GO THROUGH WHEN YOU’RE EMBARKING ON A PROCESS LIKE THIS. AND THEN I MET WITH THE — INTERVIEWED WITH THE PRESIDENT ON MONDAY MORNING — >>SO IS IT YOUR TESTIMONY THAT YOU DON’T KNOW WHAT THE ROLE OF THE FEDERALIST SOCIETY WAS IN YOUR SELECTION?>>MY EXPERIENCE OF MY PERSONAL EXPERIENCE IN WHAT I KNOW IS THAT PRESIDENT TRUMP MADE THE DECISION, FOR STARTERS. PRESIDENT TRUMP MADE THE NOMINATION. AND I KNOW HE, AS I EXPLAINED YESTERDAY, I KNOW HE SPENT A LOT TIME IN THOSE 12 DAYS ON THIS ISSUE, AND I WAS AWARE OF THAT. I ALSO KNOW THAT MR. McGAHN WAS DIRECTLY INVOLVED WITH ME, SPENT A LOT OF TIME ON IT, AND I ALSO KNOW THAT THE VICE PRESIDENT — >>BUT YOU HAVE NO KNOWLEDGE TO SHARE WITH US TODAY ABOUT THE ROLE OF THE FEDERALIST SOCIETY AND HOW THEY WERE IN-SOURCED INTO THE WHITE HOUSE? THAT IS A MYSTERY TO YOU AS WELL AS TO US?>>I’M NOT SURE WHAT MR. McGAHN MEANT. I THINK BY THAT COMMENT — I THINK FEDERALIST SOCIETY MEMBERS ARE — THE LAWYERS IN THE ADMINISTRATION ARE FEDERALIST SOCIETY MEMBERS, AND SO IT SHOULD NOT BE A SURPRISE THAT — BECAUSE IT’S AN ORGANIZATION.>>AND LEONARD LEO’S ROLE SPECIFICALLY, FROM THE FEDERALIST SOCIETY?>>>>I DON’T KNOW.>>OKAY.>>I DON’T KNOW THE SPECIFICS.>>WELL, 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’S A PRETTY SIGNIFICANT GROUP OF PEOPLE WHO TEND TO SHARE VERY CONSERVATIVE AND PRO-CORPORATE POINTS OF VIEW. IT REFLECTS THAT AT LEAST 14 OF THE DONORS ARE ACTUALLY ANONYMOUS, WHICH IS A VERY UNFORTUNATE PART OF OUR CURRENT POLITICAL WORLD. ACTUALLY, PROBABLY MORE THAN THAT, BECAUSE DONORS TRUST HERE IS AN ORGANIZATION WHOSE SOLE PURPOSE IS TO LAUNDER THE IDENTITY OFF OF BIG DONORS SO THAT A RECIPIENT OF FUNDS CAN REPORT THEY GOT THE MONEY FROM DONORS TRUST RATHER THAN THE TRUE PARTY OF INTEREST. SO 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. AND PRESUMING THAT TO BE TRUE, SHOULD THAT GIVE YOU OR ANYONE IN THIS PROCESS PAUSE THAT 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 AND I KNOW THE PRESIDENT WAS — I’M THE PRESIDENT’S NOMINEE. HE WAS DIRECTLY INVOLVED IN MAKING THAT DECISION. I’M SURE HE CONSULTED WITH MR. McGAHN AND OTHERS. I KNOW HE CONSULTED WIDELY WITH A LOT OF PEOPLE TO GET INPUT ON THE — VERY WIDELY TO GET INPUT ON AT LEAST THE PEOPLE WHO WERE THE FINALISTS. SO, THAT PART OF IT, MY 12-DAY EXPERIENCE, WAS WITH THE WHITE HOUSE COUNSEL’S OFFICE AND THE PRESIDENT AND VICE PRESIDENT TOO.>>OKAY.>>AND I ALSO DON’T — I’M NOT FAMILIAR WITH ALL THE DONORS.>>SO WHATEVER THE ROLE OF THE FEDERALIST SOCIETY WAS IN ALL OF THIS, IT WAS, AND THERE’S PLENTY OF REPORTING, WE DON’T NEED TO LITIGATE THAT BETWEEN US, YOU DON’T KNOW IF WHAT YOU’VE TESTIFIED AND THAT’S FINE.>>ON MY PROCESS AND, AGAIN, YES.>>BUT YOU’RE FAIRLY FAMILIAR WITH THE PROCESS GENERALLY, BECAUSE YOU USED TO RUN IT IN THE BUSH WHITE HOUSE OR HAVE A SIGNIFICANT ROLE IN IT, THE PROCESS OF JUDICIAL NOMINEE SELECTION, CORRECT? YOU WENT INSIDE THAT MACHINE.>>I DID NOT RUN IT. JUDGE GONZALEZ — >>BUT YOU’VE BEEN INSIDE THE PROCESS.>>I HAVE BEEN INSIDE THE PROCESS, YES.>>SO, THE NEXT THING THAT HAPPENS GOING FORWARD IS THAT 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. NOW, I DON’T KNOW WHETHER WE CAN SHOW THAT THOSE WERE THE SAME FUNDERS, BECAUSE THEY ARE ENGAGED IN WHAT IS CALLED, AS YOU KNOW, DARK MONEY FUNDING. THEY DON’T REPORT THEIR DONORS. BUT I’D BE PREPARED TO MAKE A VERY SUBSTANTIAL BET THAT THERE’S ENORMOUS OVERLAP BETWEEN THE FUNDERS OF THE JUDICIAL CRISIS NETWORK CAMPAIGN FOR YOUR CONFIRMATION AND THE FEDERALIST SOCIETY DONOR GROUP TO THE EXTENT THAT WE’RE AWARE OF IT SINCE SO MANY OF THEM ARE ANONYMOUS. HYPOTHETICALLY, SHOULD THE AMERICAN PEOPLE HAVE CONCERN ABOUT THE ROLE OF VERY, 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 A NOMINEE? IS THERE ANY CAUSE FOR CONCERN THERE, AS A GENERAL PROPOSITION?>>WELL, SENATOR, THERE ARE A LOT OF PREMISES IN YOUR QUESTION THAT I’M NOT SURE ABOUT.>>I’M NOT ASKING YOU TO ACCEPT THE PREMISES AS TRUE. I’M ASKING IT AS A HYPOTHETICAL. IF THERE WERE VERY, 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 CAMPAIGNS THAT ARE BEING RUN ON YOUR BEHALF FOR YOUR CONFIRMATION, WOULD THAT BE A MATTER OF CONCERN OR IS THAT ALL JUST FINE AND WE SHOULDN’T EVEN CARE ABOUT GETTING THE ANSWERS?>>SO, TWO THINGS, SENATOR. ONE IS I DESCRIBED THE PROCESS I WENT THROUGH WITH MR. McGAHN, THE PRESIDENT, AND THE VICE PRESIDENT AND THE SELECTION. AND THAT’S WHAT I KNOW ABOUT MY PROCESS. TWO, ON THE ADS, THERE ARE A LOT OF ADS AGAINST ME AS WELL. AND I’VE SEEN THOSE. AND YOU KNOW, OUR FAMILY’S SEEN THOSE, AND THEN THERE’S ADS FOR ME AND WE’VE SEEN THOSE TOO, AND AS CHIEF JUSTICE ROBERTS SAID IN HIS HEARING, THAT’S A FREE COUNTRY AND THERE ARE ADS FOR OR AGAINST, AND OBVIOUSLY, AS SENATOR — >>SHOULD WE AS CITIZENS KNOW WHO THEY ARE, WHO’S FUNDING THE ADS? JUST AS A MATTER OF CITIZENSHIP.>>WELL, I THINK THAT’S A, FIRST AND FOREMOST, A POLICY QUESTION FOR THE CONGRESS TO DECIDE ON WHAT DISCLOSURE REQUIREMENTS IT WANTS TO PUT IN, AND THEN IF THOSE DISCLOSURE REQUIREMENTS WERE PUT IN OR STATE GOVERNMENTS COULD TRY TO MAKE DISCLOSURE REQUIREMENTS, I THINK SOME HAVE TRIED, AND THEN THERE WOULD UNDOUBTEDLY BE CHALLENGES TO THAT AND WHAT’S THE FIRST AMENDMENT IMPLICATIONS OF THAT, AND THAT WOULD COME TO A COURT. AND I WOULD KEEP AN OPEN MIND ON THAT CASE UNDER THE PRECEDENT AND FIRST AMENDMENT LAW, AND WOULD THINK ABOUT THAT. THE POLICY QUESTION, I THINK, IS REALLY FOR CONGRESS IN THE FIRST PLACE TO DETERMINE, ASSESS, STUDY, EXACTLY WHAT KIND OF DISCLOSURE REQUIREMENTS SHOULD BE PUT INTO PLACE. I UNDERSTAND THE POTENTIAL — >>THE POTENTIAL HAZARD THERE IS THAT THE UNLEASHED POWER OF UNLIMITED POLITICAL DARK MONEY THEN BECOMES LIKE A RATCHET. THE OBSTACLE TO SOLVING THAT PROBLEM. AND I HOPE YOU CAN UNDERSTAND THAT AS A MATTER OF POLITICAL PRINCIPLE.>>I DO UNDERSTAND THE CONCERNS ABOUT MONEY IN THE POLITICAL SYSTEM. WHEN I WORKED FOR — IN THE TIME IT TAKES ALL OF YOU AND WHEN I WORKED FOR PRESIDENT BUSH IN THE ’04 TIME FRAME, FOR EXAMPLE, AND HOW MANY FUNDRAISERS HE HAD TO DO AND GOING BACK TO THE SEPTEMBER 11th POINT AND THE TIME AND BURDENS ON THE PRESIDENCY.>>IT’S A LOT EASIER SINCE NOW YOU CAN JUST GET A SPECIAL INTEREST TO SET UP A 501 C 4 AND DROP TENS OF MILLIONS OF DOLLARS IN AND IT’S LIKE THAT AND THE PUBLIC DOESN’T KNOW WHO’S BEHIND IT, ONLY A VERY FEW PEOPLE ARE IN ON WHAT THE DEAL IS. IT’S GOTTEN EASIER SINCE PRESIDENT BUSH BUT NOT BETTER.>>WELL, I THINK, FOR SOME MEMBERS, PARTICULARLY IN THE HOUSE, IF YOU HAVE — IF YOU’RE RUNNING FOR REELECTION AND A THIRD PARTY GROUP COMES IN AGAINST YOU AND YOU DON’T HAVE — YOU HAVE TO GO OUT ON THE FUND-RAISING, THAT’S PART OF THE CONCERN I’VE HEARD OVER THE YEARS, GENERALLY, IS THE TIME THAT EACH OF YOU HAS TO SPEND AND THE MEMBERS OF THE HOUSE HAVE TO SPEND.>>LET JUST CONTINUE ON FORWARD THROUGH THIS PROBLEM OF FUNDERS. ON THE COURT, ON THE D.C. CIRCUIT AND POTENTIALLY ON THE SUPREME COURT, YOU WILL OFTEN SEE CASES BROUGHT BY GROUPS LIKE, FOR INSTANCE, THE PACIFIC LEGAL FOUNDATION. ARE YOU FAMILIAR WITH THAT GROUP?>>I’VE SEEN BRIEFS BY THE PACIFIC LEGAL FOUNDATION.>>DO YOU KNOW WHAT THEY DO?>>I’LL TAKE YOUR DESCRIPTION.>>OKAY. 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 WINNEPOG POND, RHODE ISLAND, TO HIRE A CLIENT WHOSE CASE THEY COULD TAKE TO THE SUPREME COURT WITH A PURPOSE TO MAKE A POINT, AND THEY’RE NOT ALONE IN DOING THIS. THERE ARE A NUMBER OF SIMILAR GROUPS WHO PERFORM THIS SERVICE, AND IT CAUSES ME TO THINK THAT SOMETIMES THE TRUE PARTY AND 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, IN AMICUS BRIEFS, AND THEY’RE ALSO, OF COURSE, THERE HAVE BEEN HISTORICALLY, YOU LOOK FOR, AS I UNDERSTAND IT, PEOPLE TRY TO IDENTIFY SUITABLE PLAINTIFFS TO CHALLENGE — AND THIS, AGAIN, IS ACROSS THE ENTIRE IDEOLOGICAL SPECTRUM.>>WHAT ARE THE SIGNALS THAT THAT’S GOTTEN OUT OF HAND? THAT THERE’S SOMETHING ROTTEN IN DENMARK.>>THAT’S AN INTERESTING QUESTION, SENATOR, AND I THINK IT’S AN IMPORTANT ONE BUT IT’S NOT ONE THAT I THINK I HAVE A GREAT ANSWER TO.>>LET ME PROPOSE ONE THOUGHT TO YOU IS THAT THE SUPREME COURT, AT LEAST, SHOULD FIX ITS RULES ON WHO THE AMICEE ARE WHO TURN UP AND REQUIRE SOME DISCLOSURE OF WHO’S REALLY BEHIND THEM. THE ONLY THING THE SUPREME COURT REQUIRES IS TO DISCLOSE WHO PAID FOR THE BRIEF, WHICH IS NOT A VERY BIG EXPENSE SO VERY POWERFUL INTERESTS CAN COME IN BEHIND AN AMICUS GROUP THAT HAS A NAME LIKE CITIZENS FOR PEACE AND PROSPERITY AND PUPPIES AND NOBODY KNOWS WHO’S REALLY AN INTEREST. SO THAT WOULD BE ONE THING THAT I THINK WOULD BE A CONCERN. ANOTHER THING THAT WOULD BE A CONCERN, I WOULD THINK, WOULD BE WHEN YOU SEE THESE SPECIAL INTEREST GROUPS RUSHING OUT, TRYING TO LOSE CASES IN ORDER TO GET BEFORE A FRIENDLY COURT, IT REALLY SEEMS IMPROBABLE AS SOMEBODY WHO HAS ACTUALLY TRIED CASES AND WHO’S BEEN AROUND COURTROOMS A LOT AND WHO’S SEEN A LOT OF LITIGATION, A LOT OF GREAT LITIGATORS, I HAVE NEVER SEEN ANYBODY ONCE TRY TO LOSE A LEGITIMATE CASE. SO, IN THE WAKE OF JUSTICE ALITO’S SIGNALING ABOUT WHAT THEN BECAME FREDERICKS AND JANUS TO SEE THESE GROUPS RUSH OUT AND ASK THE COURT TO RULE AGAINST THEM SO THEY CAN GET A FOOT UP TO THE SUPREME COURT WHERE THEY EXPECT A GOOD OUTCOME, TO ME, THAT — THERE’S JUST SOMETHING THAT DOESN’T SEEM RIGHT ABOUT THAT. THAT SEEMS TO ME A LITTLE BIT LIKE FAUX LITIGATION, THAT THERE’S SOMETHING ELSE GOING ON OTHER THAN REAL PARTIES HAVING REAL ARGUMENTS AND THE SUPREME COURT ULTIMATELY SETTLING PROPERLY PREPARED REAL DISPUTES. DO YOU HAVE ANY CONCERN ABOUT THE OPTICS OF PEOPLE RUSHING TO LOSE CASES BELOW TO COME BEFORE WHAT THEY THINK IS A FRIENDLY SUPREME COURT? DOES THAT SEEM JUST A LITTLE BIT ODD?>>I WILL — I WILL ACKNOWLEDGE — I ACKNOWLEDGE, SENATOR, I’M NOT ENTIRELY FAMILIAR WITH THAT PHENOMENON.>>OKAY.>>I WOULD BE INTERESTED IN — >>I MIGHT FOLLOW UP WITH YOU WITH A QUESTION FOR THE RECORD TO GET YOUR MORE DELIBERATE THOUGHTS ABOUT IT.>>AND ON YOUR AMICUS THOUGHT, I’M INTERESTED IN THE SPECIFICS OF YOUR PROPOSAL AND CERTAINLY IF CONFIRMED, I WOULD — >>BECAUSE HERE’S THE CONCERN. YOU KNOW PERFECTLY WELL THAT THE COURT DEPENDS ON AS MUCH AS ANYTHING, ON ITS REPUTATION. YOU DON’T HAVE A PURSE AND YOU DON’T HAVE AN ARMY. YOU STAND ON YOUR REPUTATION IN THE JUDICIARY, AND YOU MUST NOT ONLY ACT JUSTLY BUT BE SEEN TO ACT JUSTLY, AND WHAT I’VE LAID OUT IS A SCENARIO IN WHICH 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 THAT THE SAME FUNDERS ARE BEHIND THE JUDICIAL CRISIS NETWORK OPERATION THAT IS POLITICALLY PUSHING FOR YOU.>>SENATOR WHITEHOUSE, WE’RE GOING TO ADD ONE MINUTE TO YOUR TIME. YOUR BEEN INTERRUPTED.>>WE WILL NOT GO BACK!>>THAT SOME PORTION OF THE SUPREME COURT’S DOCKET IS MADE UP OF STRATEGIC CASES RATHER THAN REAL LITIGATION IN WHICH SOMEBODY HAS GONE OUT TO FIND AN APPROPRIATE PLAINTIFF, HIRE THE CLIENT, BRING THEM IN, AND BY THE WAY, WHEN THEY’RE DONE WITH THEM, THEY FIRE THE CLIENT RATHER UNCEREMONIOUSLY IN MY EXPERIENCE, AND WHEN THE PROPER CASE COMES UP, YOU SEE THIS FLOOD OF SPECIAL INTEREST AMICI WITH TERRIBLE TRANSPARENCY INTO WHO IS BEHIND THEM. IN ONE CASE, WE TRACKED ONE OF THESE BIG FUNDING GROUPS BEHIND 11 DIFFERENT AMICUS BRIEFS, SO THE WHOLE AMICUS THING BEGINS TO HAVE A REALLY RANK ODOR TO IT AND AT THE END OF THE DAY, WHERE THINGS REALLY START TO GO HAYWIRE, IN MY VIEW, IS WHEN YOU GO BACK TO THOSE 5-4 DECISION THAT I TALKED ABOUT YESTERDAY WHICH IS, I THINK, ONE OF THE MOST HEARTBREAKING THINGS I’VE EXPERIENCED. I USED TO ARGUE IN FRONT OF APPELLATE COURTS, NOT AT YOUR LEVEL. I’VE BEEN IN FRONT OF THE SUPREME COURT ONCE, IN FRONT OF THE RHODE ISLAND SUPREME COURT MORE THAN I COULD REMEMBER. I THOUGHT I WAS A REASONABLY GOOD APPELLATE LAWYER AND 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, AND I HOPE THAT YOU’LL AT LEAST CONSIDER THAT THAT’S SOMETHING THAT THE COURT NEEDS TO CURE RATHER THAN MAKE WORSE IN ORDER TO CONTINUE HAVING ITS CREDIBILITY. I THINK 80 CASES IN WHICH ALL THE REPUBLICANS GO ONE WAY AND CAN’T BRING A SINGLE DEMOCRAT APPOINTEE WITH THEM, THAT’S A TOUGH DATA POINT. AND THEN WHEN YOU LOOK AT THAT TOUGH DATA POINT AND YOU SEE THAT MORE THAN 90% OF THOSE CASES, IF YOU LOOK BEHIND AT THE OUTCOME, IT HAD A BIG ONE OF THE INTERESTS THAT I MENTIONED THAT ARE VERY, VERY IMPORTANT TO BIG SPECIAL INTERESTS THAT ARE IMPLICATED AND THEN WHEN YOU LOOK AT THE WIN-LOSS RATE IN THOSE CASES AND IT’S 100%, 100% FOR THIS CROWD OF BIG SPECIAL INTERESTS, AND THEN HERE’S WHERE YOU COME IN AT THE END. THIS IS THE ROBERTS FIVE MAJORITY IN THOSE 5-4 CASES WHERE THESE CONSERVATIVE GROUPS HAVE COME IN TO MAKE THEIR PITCH. THEY HAVE ONE 92% OF THE TIME IN THOSE CASES. IF YOU FIGURE THEY’RE THROWING A COUPLE OF LONG BALLS, LIKE HAIL MARYS, AND MAYBE THAT’S THE 8%, THAT’S A HELL OF A RECORD. AND THEN IF YOU LOOK AT YOUR RECORD ON THE D.C. CIRCUIT WHERE THESE CONSERVATIVE GROUPS COME IN, YOU LINE RIGHT UP. 91%. 92%. AND I THINK WHEN YOU PUT THE WHOLE SAGA TOGETHER FROM THE BIG SPECIAL INTERESTS LURKING BEHIND THE FEDERALIST SOCIETY TO THE BIG SPECIAL INTERESTS FUNDING THE JUDICIAL CRISIS NETWORK TO THE BIG SPECIAL INTERESTS BEHIND THE PACIFIC LAW FOUNDATION AND THE WASHINGTON LAW FOUNDATION AND THIS LITTLE ARRAY OF, I WOULD SAY, STRATEGIC LITIGATORS WHO ARE FUNDED BY CORPORATE INTERESTS AND RIGHT WING INTERESTS, AND THEN THESE AMICI, WE DON’T KNOW WHO’S BEHIND THEM, AND THEN YOU SEE THIS RESULT, THAT’S A TABLEAU THAT IS AN ALARMING ONE, I THINK, FOR THE COURT, AND I WOULD URGE YOU TO THINK HARD ABOUT WHETHER THAT’S A DIRECTION YOU’D WANT TO CONTINUE TO GO AS AN ASSOCIATE JUSTICE OF THAT COURT. BECAUSE AT SOME POINT, THOSE NUMBERS CATCH UP WITH YOU. AT SOME POINT, AS I SAID YESTERDAY, PATTERN IS EVIDENCE OF BIAS.>>SENATOR, A COUPLE THOUGHTS. FIRST, ON THE AMICUS BRIEFS, AT LEAST IN MY EXPERIENCE, I PAY ATTENTION TO THE QUALITY OF THE ARGUMENTS IN THE BRIEFS NOT THE IDENTITY OF THE PARTIES ON THEM BUT I TAKE YOUR POINT ON THE DISCLOSURE. I’D BE INTERESTED IN THE SPECIFICS OF ANYTHING YOU’RE TALKING ABOUT, ABOUT DISCLOSURE REQUIREMENTS FOR THE SUPREME COURT. TWO, I DO BELIEVE DEEPLY IN THE IDEA THAT WE’RE A TEAM OF NINE AND NEED TO BE WORKING TOGETHER, AND I TAKE — I TAKE THE POINT, TOO, THAT IT’S VERY IMPORTANT, IF I’M CONFIRMED, THAT I WORK WITH, AS BEST I CAN, AND I WILL, TO MAINTAIN THE CONFIDENCE OF ALL THE AMERICAN PEOPLE AND THE INDEPENDENCE AND THE IMPARTIALITY OF THE SUPREME COURT AT ALL TIMES. I’M AWARE EVERYTHING I DO, IF I WERE TO BE CONFIRMED, WOULD HELP AFFECT THAT. HOW I DECIDE, WHAT I WRITE IN OPINIONS, HOW I TREAT LITIGANTS IN ORAL ARGUMENT, WHERE I SPEAK, WHAT I TEACH, WHAT I SAY ON THE OUTSIDE, EVERYTHING GOES INTO HOW I BEHAVE, WHAT I DO IN MY VOLUNTEER TIME. EVERYTHING GOES INTO THE IMPRESSIONS OF ME AS ONE PART, IF I’M CONFIRMED, THE SUPREME COURT AND I TAKE VERY SERIOUSLY YOUR BROADER POINT ABOUT MAINTAINING CONFIDENCE OF ALL THE AMERICAN PEOPLE AND THE INTEGRITY OF THE SUPREME COURT.>>THAT WOULD A FIRST FOR YOU! YOU’RE A POLITICAL HACK WHO WOULD TAKE HEALTH CARE AND WOMEN’S RIGHT TO CHOOSE. NOW YOU PRETEND TO BE IMPARTIAL.>>MY TIME IS EXPIRED.>>I’M HAPPY TO GIVE YOU AN ADDITIONAL MINUTE IF YOU’D LIKE.>>JUST TO MAKE A FINAL POINT, ACTUALLY, I THINK THIS IS NOT AN OFFSHORE STORM. IT HAS MADE LANDFALL WHEN YOU SEE POLLING THAT SHOWS THAT 49% OF AMERICANS THINK A CORPORATION WILL GET A FAIRER SHOT IN THE UNITED STATES SUPREME COURT THAN AN INDIVIDUAL. SEVEN TIMES AS MANY THAT THINK IT’S THE OTHER WAY. NOW YOU STILL HAVE A FEW TO WORK WITH WHO ARE UNDECIDED ON THAT QUESTION, BUT THE FACT THAT ABOUT HALF OF THE AMERICAN PEOPLE ALREADY BELIEVE THAT CORPORATIONS WILL BE TREATED MORE FAIRLY IN THE UNITED STATES SUPREME COURT THAN HUMAN BEINGS WILL AND THE ALIGNMENT OF THAT WITH THE FACTS THAT I HAVE SHOWN YOU ABOUT THE SUPREME COURT’S RECORD OF 80 PARTISAN DECISIONS, 92% INVOLVING BIG CORPORATE SPECIAL INTERESTS AND 100% WIN RATE FOR THEM IN THOSE CASES, I THINK WE’RE AT A TOUGH PLACE RIGHT NOW, AND I THINK WE REALLY NEED TO GET BACK AWAY FROM THAT. SO THANK YOU.>>THANK YOU, SENATOR WHITE HOUSE. JUDGE KAVANAUGH, I WANT TO GET BACK TO A COUPLE OF QUESTIONS THAT MY COLLEAGUE WAS ASKING YOU JUST A MINUTE AGO. 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.>>AND 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. THE SECOND LIST HAD 21 NAMES ON IT, WHICH INCLUDED THE PREVIOUS 11. THERE WERE REPORTS AT THE TIME THAT SOME OUTSIDE GROUPS HAD HAD SOME INVOLVEMENT IN THAT. WERE YOU INVOLVED IN THE FIRST LIST? WERE YOU INCLUDED IN THE FIRST LIST?>>I WAS NOT.>>WERE YOU INCLUDED IN THE SECOND LIST?>>I WAS NOT.>>OKAY. SO, YOU WERE — YOU BECAME UNDER CONSIDERATION ONLY AFTER PRESIDENT TRUMP TOOK OFFICE, CORRECT?>>THAT’S MY UNDERSTANDING. THAT’S WHEN I BECAME IDENTIFIED.>>AND AFTER HE WAS STAFFED UP, AFTER HE HAD HIS OWN STAFF, HIS OWN STAFF WITHIN THE WHITE HOUSE. WITHIN THE SUPREME COURT, IS IT THE CASE THAT THERE IS AN AISLE, MUCH AS THERE IS IN THE UNITED STATES SENATE OR THE UNITED STATES HOUSE OF REPRESENTATIVES?>>THERE’S NO AISLE OR SEPARATE CAUCUS ROOMS IN THE SUPREME COURT. EITHER LITERALLY OR FIGURATIVELY IN MY VIEW.>>AND UNDER MOST CIRCUMSTANCES, IN MOST YEARS, IN RECENT — IN THE PAST DECADE OR SO, THE NUMBER OF CASES THAT ARE DECIDED ON A 5-4 MARGIN HAVE BEEN VERY LOW, LESS THAN 20% AS FAR AS I CAN COUNT. IS THAT ROUGHLY CONSISTENT WITH YOUR ONCING?>>THAT IS.>>MEANING THAT THE CONFIGURATION OF 5-4 IS MUCH LESS COMMON THAN BASICALLY ALL OF THE OTHERS. IT IS DWARFED IN COMPARISON TO THOSE CASES THAT ARE DECIDED EITHER 9-0, WHICH IS OFTEN THE BIGGEST CONTINGENT, OR 8-1 OR 7-2 OR 6-3. NOW, EVEN IN THOSE CASES THAT ARE DECIDED 5-4, DOES THE FACT THAT IT WAS DECIDED 5-4 MAKE IT ANY LESS OF A LEGITIMATE DECISION? DOES IT MAKE THE JUDGMENT ANY LESS BINDING ON THE PARTIES IN THAT CASE?>>NO, IT IS STILL A DECISION OF THE COURT. NO MATTER WHAT THE ULTIMATE MAJORITY OPINION IS COMPOSED OF.>>AND 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 A CASE OF A 5-4 BASIS?>>WELL, IF I WERE A LAWYER ARGUING BEFORE THE SUPREME COURT, I PROBABLY WOULD REFRAIN FROM QUESTIONING THE MOTIVATIONS OF THE JUSTICES. I THINK EACH OF THE JUSTICES — I KNOW THEM. THEY ARE ALL COMMITTED TO THE CONSTITUTION OF THE UNITED STATES AND IMPARTIALLY DISCHARGING THEIR DUTIES. OF COURSE, HAVE DIFFERENT PERSPECTIVES ON CERTAIN ISSUES, BUT THEY’RE ALL — I THINK WE’RE FORTUNATE TO HAVE EIGHT HARD-WORKING JUSTICES WHO HAVE OUTSTANDING RECORDS AND ARE COMMITTED TO THE CONSTITUTION AND COMMITTED TO THE INDEPENDENCE OF THE JUDICIARY.>>WHAT ABOUT IN THE CIRCUIT COURT, IN THE D.C. CIRCUIT WHERE YOU HAVE SERVED? WOULD IT BE FAIR TO SUGGEST THAT A CASE IS SOMEHOW LESS LEGITIMATELY DECIDED IF THAT CASE WERE DECIDED ALONG THE LINES OF THE — WHICH PRESIDENT APPOINTED WHICH MEMBER OF THE D.C. CIRCUIT?>>THE PRECEDENT STANDS EITHER WAY.>>THANK YOU. 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? IS IT SOMETHING THAT IS TO BE UPHELD AND INTERPRETED ONLY BY THOSE WHO WEAR BLACK ROBES?>>NO, SENATOR. LET ME TAKE YOU THROUGH THE PROCESS. CONGRESS, OF COURSE, PASSES LAWS, AND IN CONSIDERING LAWS, CONGRESS WILL ALSO OFTEN ASSESS THE POSSIBLE CONSTITUTIONALITY OF THE LAWS PASSED. SO IN THE FIRST INSTANCE, WHEN YOU’RE CONSIDERING THE PASSAGE OF A LAW, YOU MIGHT ASSESS THE FIRST AMENDMENT IMPLICATIONS OR IF IT’S A NATIONAL SECURITY, THE FOURTH AMENDMENT IMPLICATIONS, AND — OR THE DUE PROCESS, FIFTH AMENDMENT IMPLICATIONS.>>AND WE’VE ALL TAKEN OUR OWN OATH TO UPHOLD THE CONSTITUTION, RIGHT, SO YOU DO YOUR BEST AND THE EXECUTIVE BRANCH AS WELL, A CONSTITUTIONAL — WHETHER TO SIGN THE BILL, FOR EXAMPLE, FOR THE PRESIDENT, IF THE PRESIDENT HAS A CONSTITUTIONAL CONCERN OR A POLICY CONCERN, BUT THE PRESIDENT COULD VETO THE BILL FOR THAT REASON. THAT HAS CERTAINLY HAPPENED TIS HOIRKLY. HISTORICALLY. AND THEN WHEN IT COMES TO THE COURT, OF COURSE, WE ARE — WE ASSESS IN CASES OR CONTROVERSIES THE CONSTITUTIONALITY OF A LAW THAT IS CHALLENGED THERE IN THE CONTEXT OF A SPECIFIC CASE OR CONTROVERSY. WE DON’T — PRESIDENT WASHINGTON, GEORGE WASHINGTON, ASKED THE SUPREME COURT FOR AN ADVISORY OPINION IN HIS FIRST TERM ON A DISPUTED LEGAL ISSUE — ACTUALLY, MIGHT HAVE BEEN HIS SECOND TERM. BUT PRESIDENT GEORGE WASHINGTON ASKED FOR AN OPINION AND THE SUPREME COURT RESPECTFULLY WROTE BACK AND SAID, WE DON’T PROVIDE ADVISORY OPINIONS. WE DECIDE CASES OR CONTROVERSIES. THEREBY, I THINK, UNDERSCORING THE POINT YOU’RE MAKING WITH YOUR QUESTION, WHICH IS CONSTITUTIONALITY OF LAWS IS ASSESSED — IS ASSESSED IN THE FIRST INSTANCE BY CONGRESS AND THE EXECUTIVE.>>SO, IT WOULD BE NOT — IT WOULD NOT BE INAPPROPRIATE FOR US AS MEMBERS 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 RIGHT THAT MIGHT BE JEOPARDIZED BY AN ACT OF CONGRESS WE ARE CONSIDERING, WOULDN’T BE INAPPROPRIATE FOR US TO SAY, LOOK, WE’RE NOT SURE EXACTLY HOW FAR THE SUPREME COURT WILL GO HERE. OUT OF AN ABUNDANCE OF CAUTION, OUT OF RESPECT FOR THE CONSTITUTION, WE’RE GOING TO DRAW THE LINE MORE CAREFULLY SO THAT WE MAKE SURE THAT WE DON’T STEP INTO UNCONSTITUTIONAL TERRITORY.>>THAT HAS HAPPENED HISTORICALLY AND I THINK HAPPENS TODAY. THAT UNDERSCORES HOW THE CONSTITUTION TILTS TOWARD LIBERTY IN SO MANY DIFFERENT WAYS. IT TILTS TOWARD LIBERTY BECAUSE IT’S HARD TO PASS A LAW, AS YOU KNOW, WITH BOTH HOUSES AND THE PRESIDENT. AND THEN NOT ONLY MIGHT THERE BE POLICY OBJECTIONS, BUT MEMBERS OF CONGRESS MIGHT SAY, WELL, EVEN IF THE SUPREME COURT WOULD UPHOLD THIS LAW BASED ON MY ASSESSMENT OF THE SUPREME COURT, I HAVE A FIRST AMENDMENT OBJECTION, FOURTH AMENDMENT OBJECTION, EIGHTH AMENDMENT, CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OBJECTION, EQUAL PROTECTION OBJECTION AND BASED ON MY VIEW OF THE CONSTITUTION, I’M GOING TO VOTE NO ON THIS LAW. THAT’S ANOTHER WAY IN WHICH THE CONSTITUTIONALAL STRUCTURE ALL FITS TOGETHER AND TILTS TOWARD LIBERTY.>>FOR THAT VERY REASON, IT WOULD PROBABLY LEAD TO SOME BAD RESULTS IF WE WERE NOT TO DO THAT. IF WE WERE ALWAYS INCLINED TO SAY THIS F IT’S UNCONSTITUTIONAL, THE COURT WILL DO SOMETHING ABOUT IT. CAN YOU FORESEE INSTANCES IN WHICH THAT COULD CREATE PROBLEMS.>>YES, SENATOR, AND I THINK JUSTICE KENNEDY HAS WRITTEN ELOQUENTLY ABOUT THIS. EACH OFFICIAL — EACH OFFICER IN CONGRESS, EACH MEMBER OF CONGRESS, EACH SENATOR, THE PRESIDENT TAKES AN OATH, OF COURSE. THE CONSTITUTIONAL OATH TO ABIDE BY THE CONSTITUTION, AND THAT’S VERY IMPORTANT FOR EACH MEMBER TO UNDERSTAND AND UNDERSCORES — I KNOW ALL OF YOU DO, AND THAT IS AN IMPORTANT PART OF THE SEPARATION OF POWERS PROCESS. I DON’T THINK THAT THE FRAMERS THOUGHT, WELL, LET’S PASS SOMETHING EVEN THOUGH WE OURSELVES, MEANING THE MEMBERS OF CONGRESS, THINK THERE’S A CONSTITUTIONAL PROBLEM HERE, AND THAT — THAT’S NOT HOW IT HAS WORKED HISTORICALLY, NOR DO I THINK THAT’S HOW THE FRAMERS NECESSARILY INTENDED FOR CONGRESS TO WORK.>>AND THERE ARE MYRIAD INSTANCES, MOREOVER, IN WHICH WE MIGHT ENACT SOMETHING THAT FOR SOME REASON OR ANOTHER MIGHT NOT BE CHALLENGED FOR A LONG TIME OR MIGHT BE DIFFICULT TO CHALLENGE DUE TO ABILITY, SOMEBODY LACKING STANDING, ABSENCE OF A RIPE CONTROVERSY AND SO FORTH.>>THAT HAPPENS IN THE NATIONAL SECURITY CONTEXT, I THINK, SENATOR, BECAUSE THEY’RE OFTEN NOT SOMEONE WITHSTANDING, ESPECIALLY IF IT’S SOMETHING BEING DONE IN A FOREIGN COUNTRY AGAINST FOREIGN CITIZENS THAT MIGHT BE DIFFICULT TO GET INTO COURT IN SOME WAY OR ANOTHER.>>ONE OF THE REASONS I FOCUS ON THIS TODAY IS THERE WAS AN EXCHANGE YOU HAD WITH ONE OF MY COLLEAGUES EARLIER TODAY ABOUT THE INDEFINITE DETENTION OF AMERICAN CITIZENS APPREHENDED ON U.S. SOIL. THERE WAS SOME DISCUSSION SURROUNDING THIS, SUGGESTING THAT EXPARTE MIGHT SOMEHOW JUSTIFY THIS. YOU DON’T NEED TO RESPOND TO THIS BUT I THINK IT’S A POINT THAT NEEDS TO BE MENTIONED. JUSTICE SCALIA MENTIONED IN HIS DISSENT THAT EX PARTE CURAN WAS NOT THIS COURT’S FINEST HOUR. IN FACT, WHAT HAPPENED WAS THE CASE WAS ARGUED. IT WAS DECIDED THE NEXT DAY. THE SABOTEURS WERE TAKEN OUT AND EXECUTED THE NEXT WEEK. THEN THE OPINION ITSELF WAS ISSUED MANY MONTHS LATER. SO, AGAIN, I’M NOT ASKING YOU TO OPINE ON THE ONGOING VALIDITY OF IT, BUT THE POINT IS, 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.>>ABSOLUTELY. A COUPLE POINTS IN RESPONSE TO THAT, SENATOR, IF I MIGHT. JUSTICE SCALIA, OF COURSE, DISSENTED IN THAT CASE, JOINED BY JUSTICE STEPHENS, ONE OF HIS MORE POWERFUL DISSENTS. ON INDIVIDUAL LIBERTY.>>THE AMERICAN PEOPLE HAVE NO FAITH IN YOU, SIR!>>ONE OF HIS MORE POWERFUL DISSENTS, PROTECTING INDIVIDUAL LIBERTY, THEY’RE RULING JUSTICE SCALIA WITH JUSTICE STEPHENS THAT IT WAS ILLEGAL TO HOLD AN AMERICAN CITIZEN AND I THOUGHT THAT WAS AN IMPORTANT OPINION OF HIS WHEN I GAVE A TALK ABOUT ABOUT JUSTICE SCALIA, I IDENTIFIED THAT AS ONE OF HIS MOST IMPORTANT OPINIONS AND A VERY POWERFUL OPINION. ON THE KEIREN OPINION ITSELF, IT ALSO DEALT WITH MANY WHO WERE NOT AMERICAN CITIZENS BUT YOU’RE RIGHT, THERE WAS AN AMERICAN CITIZEN INVOLVED. THE COURT, YOU’RE RIGHT, ALSO, OF COURSE, YOU’VE STUDIED THIS AS MUCH AS ANYONE, BUT THE COURT DID RESOLVE THE CASE VERY QUICKLY AND THE OPINION — I’VE SPENT MANY AN HOUR TRYING TO DECIPHER CERTAIN PARAGRAPHS OF THAT OPINION FOR CASES I’VE HAD. IT’S NOT EASY. I WILL SAY THE COURT, TO ITS CREDIT, GIVE A LITTLE CREDIT, DID HAVE AN EIGHT-HOUR OR SOMETHING ORAL ARGUMENT. THE ATTORNEY GENERAL OF THE UNITED STATES ARGUED KEIREN PERSONALLY, AND I READ THE TRANSCRIPT OF THAT TO TRY TO FIGURE OUT WHAT WAS GOING ON IN THE OPINION THAT DID NOT UNLOCK THE BOX COMPLETELY FOR ME ON WHAT WAS GOING ON IN THE KEIREN OPINION, BUT YOUR POINT, JUSTICE SCALIA DID SAY IT WAS NOT THE COURT’S FINEST HOUR. IT WAS A RUSH. IT WAS A RUSH, AND RUSHES — SOMETIMES THE COURT HAS TO RUSH, BUT RUSH DECISIONS, IN A JUDICIAL CONTEXT, SOMETIMES AREN’T ALWAYS THE BEST.>>ON THAT POINT, WOULD YOU BE OPEN TO THE IDEA OF BRINGING BACK THE ERA OF THE EIGHT-HOUR ORAL ARGUMENT?>>YEAH, THE — THE EIGHT-HOUR ORAL ARGUMENT. WE DID HAVE ONE IN A CASE MAYBE TWO YEARS AGO THAT WENT ALL AFTERNOON.>>THAT SOUNDS LIKE A LOT OF FUN.>>AFTER WE GOT BACK TO THE CONFERENCE ROOM, I DON’T THINK ANYONE WAS SAYING WE SHOULD DO THAT IN EVERY CASE.>>UNDERSTOOD. UNDERSTOOD. LET’S TALK ABOUT JUDICIAL PHILOSOPHY FOR A MINUTE. I’D LIKE TO DISCUSS FEDERALIST 78. IN FEDERALIST 78, HAMILTON DISCUSSES THE DICHOTOMY BETWEEN WILL ON THE ONE HAND AND JUDGMENT ON THE OTHER. WILL BEING SOMETHING THAT IS EXERCISED BY THE POLITICAL BRANCHES, PRIMARILY BY THE CONGRESS, BY THE LEGISLATIVE BRANCH, AND JUDGMENT BEING SOMETHING EXERCISED BY THE JUDICIAL BRANCH. WHAT’S THE DIFFERENCE BETWEEN THOSE TWO?>>THE JUDICIAL BRANCH IS DECIDING CASES OR CONTROVERSIES ACCORDING TO LAW. THE LEGISLATIVE BRANCH IS MAKING THE POLICY, EXERCISING THE WILL. THE JUDICIAL BRANCH CAN NEVER EXERCISE THE POLICYMAKING ROLE THAT IS RESERVED TO THE CONGRESS. NOW, ADMITTEDLY, THAT’S SPEAKING AT A LEVEL OF GENERALITY, AND THEY’RE TOUGH CASES AT THE MARGINS, ALWAYS — TRYING TO FIGURE OUT WHAT THE LINE IS HERE, BUT AS A GENERAL PROPOSITION, IT’S IMPORTANT FOR EVERY JUDGE TO GO IN WITH THE MINDSET OF, I’M NOT THE POLICY MAKER, I’M THE LAW INTERPRETER, THE LAW APPLIER IN A PARTICULAR CASE, AND I THINK THAT’S A VERY IMPORTANT PART OF THE FEDERALIST PAPERS THAT’S WOVEN INTO THE CONSTITUTIONAL STRUCTURE AND INTO ARTICLE III AND THAT JUDGES — I CERTAINLY HAVE TRIED FOR 12 YEARS AS A JUDGE ON THE D.C. CIRCUIT TO INCORPORATE THAT BASIC FOUNDATIONAL PRINCIPLE INTO HOW I APPROACH EACH CASE, AND IT IS A VERY CRITICAL BEDROCK PRINCIPLE OF WHAT JUDGES DO IN OUR CONSTITUTIONAL SYSTEM.>>NOW, WITHIN THAT FRAMEWORK, WHEN WE ENACT A LAW, WHAT DETERMINES WHAT IT IS THAT YOU HAVE TO INTERPRET IT — THAT 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 TWO YEARS AGO, MAYBE THREE, AT HARVARD LAW SCHOOL. I WAS PRESENT IN THE AUDIENCE. SHE SAID, WE’RE ALL TEXTUALISTS NOW. SHE WAS TALKING ABOUT JUSTICE SCALIA, WHO OF COURSE BROUGHT ABOUT SIGNIFICANT CHANGE IN THE FOCUS OF ALL FEDERAL JUDGES. I’VE SEEN IT ACROSS THE SUPPOSED PHILOSOPHICAL SPECTRUM. ALL FEDERAL JUDGES PAY VERY CLOSE ATTENTION TO THE TEXT OF THE STATUTE, AND THAT’S WHY I THINK JUSTICE KAGAN SAID WE’RE ALL TEXTUALIZED NOW BECAUSE SHE EXPLAINED THAT EVERY JUDGE REALLY CARES ABOUT THE WORDS THAT ARE PASSED BY CONGRESS. NOW, WHY IS THAT? I THINK ABOUT IT BOTH FROM A FORMAL AND A FUNCTIONALIST PERSPECTIVE. AS A FORMAL MATTER, THE LAW PASSED BY CONGRESS IS THE BINDING LAW. IT IS THE WHAT IS SIGNED BY THE PRESIDENT. IT’S WHAT’S GONE THROUGH THE SENATE AND THE HOUSE, AND THAT IS THE LAW. BUT IT ALSO, AS A PRACTICAL OR FUNCTIONAL MATTER, I THINK THE — HAVING SEEN THE LEGISLATIVE PROCESS, I KNOW HOW COMPROMISES COME TOGETHER WITHIN THE HOUSE, WITHIN THE SENATE, THERE’S NEGOTIATIONS, LATE AT NIGHT, OVER PRECISE WORDS AND COMPROMISES, INEVITABLY. LEGISLATION IS COMPROMISE. THE CONSTITUTION WAS A COMPROMISE. LEGISLATION’S A COMPROMISE. AND WHEN WE DEPART FROM THE WORDS THAT ARE SPECIFIED IN THE TEXT OF THE STATUTE, WE’RE POTENTIALLY UPSETTING THE COMPROMISE THAT YOU ALL CAREFULLY NEGOTIATED IN THE LEGISLATIVE NEGOTIATIONS THAT YOU MIGHT HAVE HAD WITH EACH OTHER, AND SO THAT’S A DANGER THAT I TRY TO POINT OUT WHEN WE’RE HAVING ORAL ARGUMENT IN A CASE OR WE’RE DECIDING CASES THAT IF WE DEVIATE FROM WHAT CONGRESS WROTE, WE’RE POTENTIALLY UPSETTING THIS CAREFUL COMPROMISE, EVEN IF WE THINK WE WOULD HAVE STRUCK THE COMPROMISE IN A DIFFERENT PLACE AS JUDGES, THAT’S NOT REALLY OUR ROLE. SO I THINK BOTH AS A FORMAL AND FUNCTIONAL MATTER, IT’S IMPORTANT TO STICK TO THE TEXT. THERE ARE CANNONS OF INTERPRETATIONS WHICH CAUSE YOU PRESUMPTIONS OF MENS REA, THAT CAUSE YOU TO SUPER IMPOSE A PRESUMPTION ON THE TEXT, BUT OTHERWISE STICKING TO WHAT YOU PASSED IS VERY IMPORTANT.>>BUT YOU CERTAINLY CONSIDER YOURSELF A TEXTUALIST.>>JUDGING IS PAYING ATTENTION TO THE TEXT OF THE STATUTE, INFORMED BY THOSE CANONS OF CONSTRUCTION SUCH AS PRESUMPTION AGAINST EXTRATERRITORIALITY, PRESUMPTION AGAINST MENS REA. SOME OF THE CANONS ARE NOT SO SETTLED, WHICH IS A WHOLE SEPARATE HALF HOUR OF DISCUSSIONS.>>HOW DOES TEXTUALISM RELATE TO OR DIFFER FROM ORIGINALISM?>>ORIGINALISM, AS I SEE IT, HAS, TO MY MIND, MEANS, IN ESSENCE, CONSTITUTIONAL TEXTUALISM, MEANING THE ORIGINAL PUBLIC MEANING OF THE CONSTITUTIONAL TEXT. NOW, THE ORIGINALISM, IT’S VERY CAREFUL WHEN YOU TALK ABOUT ORIGINALISM TO UNDERSTAND THAT PEOPLE ARE HEARING DIFFERENT THINGS SOMETIMES, SO JUSTICE KAGAN, AGAIN, AT HER CONFIRMATION HEARING, SAID WE’RE ALL ORIGINALISTS NOW, WHICH WAS HER COMMENT. BY THAT, SHE MEANT THE PRECISE TEXT OF THE CONSTITUTION MATTERS AND BY THAT, THE ORIGINAL PUBLIC MEANING. OF COURSE, INFORMED BY HISTORY AND TRADITION AND PRECEDENT. THOSE MATTER AS WELL. THERE’S A DIFFERENT CONCEPTION THAT SOME PEOPLE USED TO HAVE OF ORIGINALISM, WHICH WAS ORIGINAL INTENT. IN OTHER WORDS, WHAT DID THE PEOPLE — SOME PEOPLE — >>SUBJECTIVELY.>>SUBJECTIVELY INTEND THE TEXT TO MEAN, AND THAT HAS FALLEN OUT OF THE ANALYSIS, BECAUSE, FOR EXAMPLE, LET’S JUST TAKE THE 14th AMENDMENT EQUAL PROTECTION LAW. IT SAYS, RIGHT IN THE TEXT, EQUAL PROTECTION. EQUAL MEANS EQUAL. AS THE SUPREME COURT SAID, WHAT IS THAT BUT THE LAW SHALL BE THE SAME FOR THE BLACK AND THE WHITE. THAT’S BROWN V. BOARD, FOCUSES ON THE TEXT. BUT THERE WERE SOME RACIST MEMBERS OF CONGRESS INVOLVED IN THE — WHO DIDN’T THINK IT SHOULD APPLY IN THAT WAY TO CERTAIN ASPECTS OF PUBLIC LIFE. BUT WE DON’T — IF YOU’RE DOING — PAYING ATTENTION TO THE TEXT, YOU DON’T TAKE ACCOUNT OF THOSE SUBJECTIVE INTENTIONS, NOR IS IT PROPER AS A GENERAL PROPOSITION TO TAKE ACCOUNT OF THE SUBJECTIVE INTENTIONS. THEY COULD BE EVIDENCE IN CERTAIN CASES, THE FIRST AMENDMENT, FOR EXAMPLE, OF THE MEANING OF THE WORDS.>>OF THE ORIGINAL PUBLIC MEANING.>>OF THE ORIGINAL PUBLIC MEANING. THEY COULD BE EVIDENCE OF THAT BUT YOU DON’T FOLLOW THE SUBJECTIVE INTENTION. SO ORIGINAL PUBLIC MEANING, ORIGINALISM, WHAT I HAVE REFERRED TO AS CONSTITUTIONAL TEXTUALISM, WHAT SENATOR CRUZ REFERRED TO AS CONSTITUTIONALISTS, I THINK THOSE ARE ALL REFERRING TO SAME THINGS WHICH IS THE WORDS OF THE CONSTITUTION MATTER. OF COURSE, AS I’VE SAID REPEATEDLY, YOU ALSO LOOK AT THE HISTORY. YOU LOOK AT THE TRADITION, FEDERALIST 39 — 37 TELLS US TO LOOK AT THE LIQUIDATION OF THE MEETING BY HISTORICAL PRACTICE OVER TIME. AND THEN YOU LOOK AT PRECEDENT, WHICH IS WOVEN INTO ARTICLE III, AS I SAID, IN FEDERALIST 78. BUT THE — YOU KNOW, START WITH THE WORDS, AS JUSTICE KAGAN SAID, WE’RE ALL ORIGINALISTS NOW IN THAT RESPECT AS FAR AS PAYING ATTENTION TO THE WORDS OF THE CONSTITUTION.>>SO IF WE STIPULATE FOR OUR PURPOSES TODAY, AS WE’RE HAVING THIS CONVERSATION, THAT ORIGINALISM REFERS TO, BASICALLY, TEXTUALISM APPLIED IN THE CONSTITUTIONAL SPHERE WITH AN EYE TOWARD IDENTIFYING THE ORIGINAL PUBLIC MEANING OF THE CONSTITUTIONAL TEXT AT ISSUE, YOU’RE AN ORIGINALIST.>>THAT’S CORRECT. AND JUSTICE KAGAN — AS JUSTICE KAGAN SAID, I THINK THAT’S WHAT SHE MEANT, WE’RE ALL ORIGINALISTS NOW, AND I THINK SHE SAID WHAT SHE MEANT AND MEANT WHAT SHE SAID WHEN SHE SAID THAT.>>WHAT, BY THE WAY, WOULD BE THE ARGUMENT AGAINST THAT? TO ME, THAT SOUNDS LIKE JUDGING. WHAT WOULD ONE ARGUE AGAINST BEING THAT TYPE OF JUDGE? AGAINST BEING A TEXTUALIST ORIGINALIST?>>WELL, THERE ARE DIFFERENT PHILOSOPHIES OF WHAT A JUDGE DOES, BUT I THINK THE JUDGE — YOU KNOW, WHAT THE ROLE OF A JUDGE IS, BUT I THINK THE LAW — ARTICLE VI OF THE CONSTITUTION SAYS THIS CONSTITUTION SHALL BE THE SUPREME LAW OF THE LAND AND THE WORD LAW IS VERY IMPORTANT THERE. IT’S NOT A SET OF ASPIRATIONAL PRINCIPLES. IT’S LAW. THAT CAN BE APPLIED IN COURT AND WHAT IS THE LAW. THE LAW ARE THE WORDS THAT WERE RATIFIED BY THE PEOPLE AND THEREFORE CAN BE APPLIED IN THE COURTS OF THE UNITED STATES. AND IT SAYS THE SUPREME LAW. WHAT DOES IT MEAN BY THAT? IT MEANS WHEN YOU PASS A STATUTE THAT IS INCONSISTENT WITH THE CONSTITUTION, THE SUPREME LAW CONTROLS, NAMELY THE CONSTITUTION CONTROLS OVER A CONTRARY STATUTE AND THAT’S OF COURSE ALSO DISCUSSED IN FEDERALIST 78 AS WELL. OF WHAT’S THE SUPREME LAW OF THE LAND AND THE CONSTITUTION’S THE SUPREME LAW. AGAIN, PRECEDENT, HISTORY — HISTORICAL PRACTICE, SUBSEQUENT TO THE PASSING OF THE TEXT, WE SEE THAT, FOR EXAMPLE, IN ESTABLISHMENT CLAUSE CASES. THE COURT WILL OFTEN LOOK, WHAT’S THE TEXT, AND PRECEDENT, WHICH IS ROOTED IN ARTICLE III. THE WORDS, THE ORIGINAL PUBLIC MEANING, ARE AN IMPORTANT PART OF CONSTITUTIONAL INTERPRETATION AND HAS BEEN, I THINK, THROUGHOUT.>>LET’S SUPPOSE CONGRESS, IN ITS INFINITE WISDOM, WITH ITS APPROVAL RATING THAT RANGES BETWEEN 9% AND 11%, MAKING US SLIGHTLY LESS POPULAR THAN RAUL CASTRO AND SLIGHTLY MORE POPULAR THAN THE INFLUENZA VIRUS, WHICH IS RAPIDLY GAINING ON BUSY. THERE’S POLITICAL RALLIES TO ORGANIZE THAT WE GET TIRED OF THE BUSY WORK OF ACTUALLY MAKING LAWS AND WE DON’T WANT TO MAKE OURSELVES ACCOUNTABLE FOR THE LAWS WE PASS. WE HEREBY PASS A LAW THAT SAYS WE IN THE UNITED STATES OF AMERICA SHALL HAVE GOOD LAW AND DELEGATE THE UNITED STATES COMMISSION ON THE CREATION OF GOOD LAWS. THE POWER TO PROMULGATE AN INTERPRET AND ENFORCE GOOD LAWS IN THE UNITED STATES. WHAT CONSTITUTIONAL ISSUES DO YOU SEE THERE?>>SENATOR, THE CONGRESS IS ASSIGNED THE LEGISLATIVE POWER IN ARTICLE ONE OF THE CONSTITUTION. IF IT DELEGATES WHOLESALE, THE CONSTITUTIONAL POWER TO ANOTHER BODY THEN THAT NATURALLY POSES A QUESTION OF WHETHER THE BODY EXERCISING THAT POWER ULTIMATELY HAS IMPROPERLY EXERCISED THE LEGISLATIVE POWER AND WHETHER THAT RULE OR WHAT HAVE YOU THAT’S ENACTED BY THAT BODY IS LAWFUL BECAUSE IT WAS NOT ENACTED BY CONGRESS. THE FRAMERS INTENDED THAT CONGRESS WOULD ENACT THE LAWS AND THE EXECUTIVE WOULD ENFORCE THE LAWS AND THAT THE JUDICIARY WOULD RESOLVE CASES AND CONTROVERSIES ARISING UNDER THOSE LAWS.>>YET IN SOME RESPECTS IT’S NOT THAT FAR REMOVED FROM SOME OF WHAT WE DO TODAY. IN SOME CASES WE’LL SAY WE SHALL HAVE GOOD LAW IN AREA X AND WE GIVE COMMISSION Y THE POWER TO MAKE AND ENFORCE GOOD LAWS IN THAT AREA. IS THERE SOME POINT AT WHICH WE CROSS A THRESHOLDS OF UNCONSTITUTIONAL DELEGATION?>>THERE’S A NON-DELEGATION PRINCIPAL. UNDER CURRENT PRECEDENT IT’S ALLOWED THE DELEGATION AND I DON’T WANT TO GET TOO SPECIFIC HERE BUT IT’S ALLOWED SOME DELEGATION. SOME JUSTICES OR JUDGES WOULD SAY WHEN THE EXECUTIVE ENACTS RULES PURSUANT THAT’S THE DELEGATION POWER. THE SUPREME COURT HAS A DOCTRINE ON THE NON-DELEGATION PRINCIPAL AND THE LINE IS DEBATED ON WHERE THAT SHOULD BE DRAWN. THERE’S PRECEDENT THAT DOES SUGGEST AT SOME POINT CONGRESS CAN GO TOO FAR IN HOW MUCH POWER IT DELEGATES TO AN EXECUTIVE OR INDEPENDENT AGENCY.>>WHEN WE DO THAT, AT SOME POINT, WE’RE SHIRKING OUR OWN RESPONSIBILITIES. WE’RE CONSOLIDATING INTO ONE BODY, THE POWER THE MAKE AND ENFORCE LAWS. I WANT TO GET TO THE CAMPAIGN FINANCE DISCUSSION. WITH REGARDS TO CITIZENS UNITED, DIDN’T THE SUPREME COURT UPHOLD THE DISCLOSURE ISSUE WITH CITIZENS UNITED?>>IT DID. I BELIEVE THAT WAS AN 8-1 MARGIN.>>YOU’VE WRITTEN ON THIS THERE THERE’S A DISTINCTION FOR FIRST AMENDMENT PURPOSES FOR CONSTITUTIONAL PURPOSES BETWEEN LAWS MANDATING DISCLOSURE AND LAWS BANNING THE DO AND SAYING OF SOMETHING, ISN’T THAT RIGHT?>>THAT IS WHAT THE SUPREME COURT HAS SAID IN CERTAIN CONTEXT AND THAT IS THE LAW SET FORTH BY THE SUPREME COURT. CITIZENS UNITED IS A GOOD EXAMPLE OF THAT, SENATOR.>>IN CASE CALLED EMILY’S LIST VERSUS FEC YOU WROTE DISCLOSURE REQUIREMENTS TRIGGER A RIGHT 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 SUBSEQUENT SUPREME COURT LAW CONTROLS.>>DO YOU HAVE A FAVORITE AMONG THE FEDERALIST PAPERS? I’M NOT ASKING YOU TO CHOOSE BETWEEN ELIZA — >>NO. THAT’S RIGHT. YES. I LIKE A LOT OF FEDERALIST PAPERS. FEDERALIST 78, THE INDEPENDENT JUDICIARY. FEDERALIST 69 THAT SAYS THE PRESIDENCY IS NOT A MONARCHY. I THINK THAT’S VERY IMPORTANT. FEDERALIST 10 WHICH TALKS ABOUT FACTIONS IN AMERICA AND EXPLAIN HAVING THE SEPARATION OF POWERS AND THE FEDERALIST DIVIDING POWER IN SO MANY DIFFERENT WAYS WOULD HELP PREVENT A FACTION FROM GAINING CONTROL OF THE ENTIRE, ALL THE POWER FOR THE PEOPLE OF THE UNITED STATES AND THAT MAKES IT FRUSTRATING AT TIMES BECAUSE IT’S HARD TO HAVE LEGISLATION BUT THAT DIVISION OF POWER HELPS PROTECT INDIVIDUAL LIBERTY. I THINK THAT COMES A BIT FROM FEDERALIST TEN. FEDERALIST 37 AND 39 TALK ABOUT ON THE ONE HAND HOW WE’RE JUST TALKING LAWS THAT ARE THE CONSTITUTION OF TIME CAN BE LIQUIDATED BY HISTORICAL PRACTICE. WHAT DOES THAT MEAN? THAT MEANS AS THE BRANCHES FILL OUT THE MEANING OF THE CONSTITUTION OVER TIME WITH PRACTICES, THOSE CAN BE RELEVANT IN HOW THE COURT INTERPRETS CERTAIN PROVISIONS. WE SEE THAT IN GAMES AND WAR VERSUS REAGAN. WE TALK ALSO ABOUT THE NATIONAL AND FEDERAL GOVERNMENT SO THE COMBINATION IN 39. THE COMBINATION THAT WE HAVE THIS ODD — THAT’S THE GENIUS WRITES-OF HAVING THE GOVERNMENT. THAT INTERESTING COMPROMISE WHICH MADISON WAS OPPOSED TO. THE COMPROMISE AT THE CONVENTION. FEDERALIST 47, THE ACCUMULATION OF ALL POWER IN ONE BODY IS THE VERY DEFINITION OF TYRANNY. I START MY SEPARATION OF POWERS CLASS EVERY YEAR WITH THAT EXACT QUOTE THAT YOU READ YESTERDAY. THAT’S VERY IMPORTANT. SORRY. I’VE GOT LIKE EIGHT KIDS.>>IT’S BRILLIANT. I THINK THAT’S GREATEST HISTORIES LIST. IF THESE WERE ON SPOTIFY, I’D SAY YOU PUT TOGETHER A LIST OF THOSE. LET’S CLOSE IN THE MINUTE AND A HALF I’VE GOT LEFT. I GIVE MYSELF AN ADDITIONAL 30 SECONDS BECAUSE OF THE TWO INTERRUPTIONS THERE. TELL ME HOW YOU WERE INFORMED BY FEDERALIST 51 AND HOW THAT RELATES TO YOUR ROLE AS A JURIST AS A D.C. CIRCUIT AND THE ROLE YOU WOULD PLAY IF YOU WERE APPOINTED TO THE UNITED STATES SUPREME COURT. THIS UNDERSTANDING THAT GOVERNMENT IS AN EXERCISE IN UNDERSTANDING HUMAN NATURE. IF WE WERE ANGELS, WE WOULDN’T NEED GOVERNMENT AND IF WE HAD ACCESS TO ANGELS, WE WOULDN’T NEED THESE RULES. HOW THE THAT AFFECT YOU AS A JUDGE WHEN TRYING TO INTERPRET THE INSTITUTION AND TRYING TO INTERPRET ACTS TAKEN PURSUANT THERE?>>THAT’S AN INTERESTING QUESTION. I THINK WE RECOGNIZE THAT WE’RE ALL IMPERFECT. ALL OF US AS HUMANS ARE IMPERFECT. THAT INCLUDES JUDGES AND THAT INCLUDES LEGISLATOR AND ALL OF US ARE IMPERFECT. WE RECOGNIZE THAT IN HOW WE GO ABOUT SETTING UP OUR GOVERNMENT. IF THERE WERE SOME PERFECT GROUP OF PEOPLE, WE WOULD PUT ALL THE POWER IN THAT ONE BODY BUT BECAUSE WE’RE IMPERFECT PUTTING ALL THE POWER IN THAT ONE BODY WOULD BE THE DEFINITION OF TYRANNY. THE WAY WE DEAL WITH THE IMPERFECTION WHILE ALSO HAVING A GOVERNMENT BECAUSE WE’RE IMPERFECT IS DIVIDING THE POWER, SEPARATING THE POWER AND TO MY MIND THAT ALL REENFORCES WHY THE FRAMERS, THE GENIUS — THE LEGISLATIVE POWER AND HAVING A FEDERALISM SYSTEM WHERE WE HAVE STATE GOVERNMENTS THAT CAN FURTHER PROTECT LIBERTY AND LABORATORIES OF DEMOCRACY AS WELL.STATE GOVERNMENTS THAT CAN FURTHER PROTECT LIBERTY AND LABORATORIES OF DEMOCRACY AS WELL. I THINK THAT’S BECAUSE WE’RE IMPERFECT AND WE RECOGNIZE THE IMPERFECTIONS. IT’S ALSO WHY WE HAVE A JURY SYSTEM. EVEN WITHIN THE JUDICIARY WE DIDN’T TRUST A JUDGE TO TRIALS ON HIS OR HER OWN — CRIMINAL TRIALS OR CIVIL TRIALS. WE HAVE A JURY SYSTEM TO RECOGNIZE AND WE HAVE USUALLY 12. THAT IS DESIGNED TO RECOGNIZE WE’RE IMPERFECT AND THAT’S WHY WE HAVE GROUP DECISION MAKING. THAT’S WHY WE HAVE 535 LEGISLATURES. THAT’S WHY WE HAVE NINE JUSTICES. WE DON’T USUALLY HAVE ONE PERSON. WE MAKE SURE NO ONE PERSON IN A JURY SITUATION OR OTHER SITUATIONS CAN BE AFFECTED IS EXERCISING TOTAL CONTROL.>>THANK YOU VERY MUCH. MY TIME IS EXPIRED. I’M NOT THE CHAIRMAN OF THIS COMMITTEE EVEN THOUGH I’M PLAYING HIM ON TV. I UNDERSTAND WE’RE SUPPOSED TO TAKE A TEN-MINUTE BREAK. TEN MINUTES.>>>THE SENATE JUDICIARY COMMITTEE TAKING A SHORT BREAK. THIS THE SECOND DAY OF BRETT KAVANAUGH’S HEARING. OUTSIDE LEGAL EXPERTS ARE PLANNED FOR FRIDAY INCLUDING TESTIMONY FROM JOHN DEAN. THERE ARE SOME QUESTION AS TO THE LENGTH OF TODAY’S HERING. HERE’S WHAT HAPPENED. AT THE START OF TODAY’S FLOOR ACTION, LEADER McCONNELL ASKING FOR CONSENT TO WAIVER THE TWO HOUR RULE. SOMETHING THAT’S REQUESTED ON A DAILY BASIS WHEN THE SENATE IS OBJECTED. SENATOR SCHUMER OBJECTED SAYING THE SENATORS NEEDED MORE DOCUMENTS TO MAKE A VOTE. SINCE THE SENATE CONVENED AT NOON, THE JUDICIARY COMMITTEE WOULD HAVE HAD TO END BY 2:00 P.M. EASTERN. IN ORDER TO ALLOW THE HEARING TO PROCEED, SENATOR McCONNELL ADJOURNED THE SENATE FOR THE DAY UNTIL NOON TOMORROW.>>>WELCOME BACK, JUDGE KAVANAUGH. SENATOR KLOBUCHAR.>>THANK YOU VERY MUCH. I WAS VISITED BY YOUR WIFE WHO WAS HERE AND TOLD ME YOU CELEBRATED YOUR 64th WEDDING ANNIVERSARY. IS THAT CORRECT?>>YEAH.>>THAT’S WHAT SHE TOLD ME. I THOUGHT IT WAS ROMANTIC THAT YOU’RE HERE. I WANTED TO GO BACK TO WHERE WE STARTED YESTERDAY. THAT’S ABOUT THE DOCUMENTS AND THE PRODUCTION OF DOCUMENTS FROM THE TIME THAT YOU WORKED IN THE WHITE HOUSE. DO YOU PERSONALLY HAVE ANY OBJECTIONS TO THE RELEASE OF THE DOCUMENTS FROM YOUR TIME AS STAFF SECRETARY?>>SENATOR, I’M NOT GOING TO TAKE A POSITION. THAT’S A DECISION FOR THE COMMITTEE IN CONSULTATION OR DISCUSSION WITH THE EXECUTIVE BRANCH AND THE — >>YOU’RE NOT GOING TO SAY WHETHER OR NOT YOU HAVE A PROBLEM WITH IT?>>I DON’T THINK IT’S MY ROLE TO SAY ONE WAY OR THE OTHER. AT LEAST AS I ANALYZE THE SITUATION. THAT’S A DECISION FOR THE COMMITTEE AND EXECUTIVE BRANCH AND PRESIDENTIAL LIBRARY. PRESIDENT BUSH’S DOCUMENTS ULTIMATELY.>>SINCE WE’RE NOT ABLE TO REVIEW VIEW THOSE DOCUMENTS IN ADDITION TO THE 102,000 THAT THE WHITE HOUSE HAS DEEMED THEIRS THAT WE’RE 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 DOCUMENTS THAT WE WOULD LIKE TO KNOW THAT’S RELEVANT TO WHAT WE HAVE DISCUSSED TODAY.>>BEFORE YOU ANSWER WITHOUT TAKING OFF HER TIME. NO SENATORS CAN SEE THOSE RECORDS. ALL 100 SENATORS CAN SEE THE RECORDS. WE SET UP SEPARATE TERMINALS SO PEOPLE CAN GO THERE. WE HAVEN’T HAD MANY PEOPLE TAKE US UP ON THE OFFER.>>MR. CHAIRMAN, NOT TO GO INTO MY TIME EITHER TO RESPOND TO YOU. I WASN’T TALKING ABOUT THOSE 189,000 DOCUMENTS. I WAS TALKING ABOUT THE ONES THAT WE’RE NOT ALLOWED TO SEE FROM THE STAFF SECRETARY TIME AND THE 102,000 THE WHITE HOUSE HAS ASSERTED PRIVILEGE THAT WE’RE ABLE TO SEE. I’M NOT TALKING ABOUT THE 189,000.>>I STAND CORRECTED.>>ALL RIGHT. AGAIN, I ASK IF THERE’S ANYTHING IN THOSE DOCUMENTS YOU THINK WOULD BE RELEVANT TO OUR DISCUSSION HERE?>>THOSE DOCUMENTS ARE PRESIDENT BUSH’S DOCUMENTS AND FOR THE COMMITTEE AND THE BUSH LIBRARY AND EXECUTIVE BRANCH TO NEGOTIATE ABOUT. AS DISCUSSED, I HAVE 12 YEARS OF JUDICIAL RECORD AND THIS IS NOT A NEW ISSUE. THIS IS AN ISSUE THAT CAME OUT IN JUSTICE SCALIA HEARING.>>I’M TALKING ABOUT THE ONES IN THE WHITE HOUSE TIME?>>I GUESS I’M NOT SEEING A DISTINCTION. THEY ARE BOTH EXECUTIVE BRANCH DOCUMENTS. THERE’S ONE EXECUTIVE BRANCH.>>I HAVE ONE MORE QUESTION ON THIS LINE. YOU’VE SAID THAT RUSHED DECISIONS AREN’T ALWAYS THE BEST IN ANSWER TO THE DISCUSSION WITH SENATOR LEE. DO 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’S A DECISION FOR THE COMMITTEE. I’M NOT FAMILIAR WITH THE CIRCUMSTANCES OF THE DOCUMENT. ON THE SOLICITOR GENERAL DOCUMENTS I WANT TO SAY ONE THING. WITH CHIEF JUSTICE ROBERTS IT WAS NOT ACTIVE CASES. IT WAS FOUR YEARS OF HIS DOCUMENTS FROM TIME HE WAS SOLICITOR GENERAL. FROM 1989 TO 1993. HE WAS NOMINATED IN 1995. IT’S NOT A NEW ISSUE BUT NOT FOR THE NOMINEE TO DECIDE.>>WHY DON’T WE MOVE ON TO THE EXECUTIVE POWER. YESTERDAY I MENTIONED YOUR SUBMISSION TO THE UNIVERSITY OF MINNESOTA LAW REVIEW. WE THANK YOU FOR MAKING THAT LAW REVIEW SO FAMOUS. IN THAT ARTICLE YOU SAID A PRESIDENT SHOULD NOT BE SUBJECT TO INVESTIGATIONS WHILE IN OFFICE. YOU SAID IN OUR MEETING THAT CONGRESS WOULD ACT QUICKLY IF THE PRESIDENT DOES SOMETHING DASTARDLY. A WORD YOU USED IN THE ARTICLE. I’M STRUGGLING WITH THE PRACTICAL IMPLICATIONS OF THAT. IS THAT ABOUT A PRESIDENT COMMITS MURDER OR JEOPARDIZES NATIONAL SECURITY OR OBSTRUCTS AN INVESTIGATION OR WHITE COLLAR CRIME. HOW DO YOU DIFFERENTIATE?>>I THINK THERE’S SEVERAL ISSUES GOING ON WITH THE QUESTION. WHAT I WROTE IN THE MINNESOTA LAW REVIEW WAS IN 2009 WHEN PRESIDENT OBAMA WAS PRESIDENT OR BECOMING PRESIDENT WAS THOUGHTS ON A VARIETY OF TOPICS.>>I WANT TO PICK UP THE TEMPO A LITTLE BECAUSE I HAVE SO MANY OF THEM. WE GET TO THAT POINT ART THE DASTARDLY IF THERE’S A WAY TO DIFFERENTIANTE.>>THAT WAS A PROPOSAL TO BE CONSIDERED. IT WAS NOT A CONSTITUTIONAL POSITION. I DID NOT TAKE ANY CONSTITUTIONAL ISSUES ON THAT.>>THESE ARE YOUR OWN RECOMMENDATIONS?>>THERE’S TWO DIFFERENT THINGS GOING ON. ONE IS ABOUT SPECIAL COUNSEL INVESTIGATIONS, FOR EXAMPLE OR CRIMINAL INVESTIGATIONS OR CIVIL LAWSUITS. THAT’S A QUESTION FOR CONGRESS TO CONSIDER WHETHER THEY WANT TO SUPPLEMENT THE PROTECTION PROVIDED BY CLIP ON THE VERSUS JONES BECAUSE THERE’S A LOT OF CRITICISM. THE SECOND QUESTION GETTING RIGHT TO YOUR POINT IS WHAT IS AN IMPEACHABLE OFFENSE. THAT’S A DECISION FOR YOU, NOT FOR ME. THE HOUSE — >>I’M FIGURING OUT HOW WHETHER WE KNOW SOMETHING IS DASTARDLY OR NOT IF WE CAN’T INVESTIGATE IT?>>I THINK I’M GOING TO REPEAT. YOU’RE ASKING FOR — HIGH CRIME — >>I’M ASKING ABOUT YOUR POSITION THAT YOU STATED IN THIS LAW REVIEW ARTICLE THAT A PRESIDENT IS NOT SUBJECT TO INVESTIGATIONS WHILE IN OFFICE. YOU’RE ONLY SAYING THEY SHOULD BE SUBJECT TO INVESTIGATION AS PART OF AN IMPEACHMENT AND THERE’S NO OTHER INVESTIGATION THAT COULD OCCUR?>>NO. FIRST OF ALL, ON CONSTITUTIONAL POSITION ON CRIMINAL INVESTIGATION AND PROSECUTION, I DID NOT TAKE A POSITION ON THE CONSTITUTIONALITY, PERIOD. THE IDEA THAT I’VE TALKED ABOUT WAS SOMETHING FOR CONGRESS TO LOOK AT IF IT WANTED. THAT’S POINT ONE. POINT TWO IS THE IDEA THAT AT THE — WHAT IS AN IMPEACHABLE OFFENSE. THAT REALLY IS A QUESTION FOR THE HOUSE AND THE SENATE.>>LET ME MOVE ON. THIS IS ABOUT ACTUAL OPINIONS REALLY ALONG THE SAME LINES THAT I KNOW SENATOR COONS WILL TALK ABOUT THE SPECIAL COUNSEL STATUTE. THIS IS YOU, UNDER THE CONSTITUTION THE PRESIDENT MAY DECLINE TO ENFORCE A STATUTE THAT REGULATES PRIVATE INDIVIDUALS WHEN THE PRESIDENT DEEMS IT UNCONSTITUTIONAL EVEN IF A COURT HAS HELD OR WOULD HELD THE STATUTE UNCONSTITUTIONAL. YOU ATTEMPTED TO CLARIFY TWO YEARS LATER IN THE AIKEN COUNTY CASE. IT SEEMS INCONSISTENT TO ME. IS YOUR VIEWS THAT EXPRESSED IN ACTUAL OPINIONS THAT A PRESIDENT CAN JUST IGNORE A LAW AND TELL A COURT UPHOLD IT OR THAT A PRESIDENT CAN CONTINUE TO IGNORE A LAW EVEN AFTER A COURT UPHOLDS IT LIKE YOU SAID IN SEVEN SKY.>>IGNORE IS NOT THE CONCEPT THERE WE DISCUSSED WHEN WE MET. WE HAD A GOOD BACK AND FORTH ON THAT. THE CONCEPT’S PROSECUTORIAL EXPRESSION. IN PROSECUTORIAL DISCRETION IS FIRMLY ROOTED, UNITED STATES VERSUS RICHARD NIXON CASE. THE EXECUTIVE BRANCH HAS THE ABSOLUTE EXCLUSIVE AUTHORITY AND DISCRETION WHETHER TO PROSECUTE THE CASE. THAT ALIE ALSO IN CIVIL CONTEXT THE LIMIT IS WELL RECOGNIZED. OTHERWISE, THE U.S. ATTORNEY’S OFFICE MIGHT PROSECUTE GANG VIOLENCE BUT LET LOW LEVEL MARIJUANA OFFENSES GO IN TERMS OF EXERCISE.>>IF A COURT HELD STATUTE UNCONSTITUTIONAL, SHOULD THE PRESIDENT HAVE TO ENFORCE IT?>>FOR EXAMPLE, LET’S TALK ABOUT THE MARIJUANA LAWS. THOSE ARE CONSTITUTIONAL BUT THE ATTORNEY GENERAL COULD SAY WE’RE NOT GOING TO DEVOTE OUR RESOURCES TO LOW LEVEL OFFENSE. THOSE ARE PERFECTLY CONSTITUTIONAL.>>LET ME TRY ONE OTHER EXAMPLE. THE TEXAS CASE ON PRE-EXISTING CONDITION. THE ADMINISTRATION HAS TAKEN THE POSITION THAT IS UNCONSTITUTIONAL, THAT PART OF THE AFFORDABLE CARE ACT DOWN IN THE TEXAS CASE TAKING THE POSITION YOU COULD THROW PEOPLE OFF OF THEIR INSURANCE IF THEY HAVE A PRE-EXISTING CONDITION. LET’S SAY THAT LAW IS FOUND TO BE CONSTITUTIONAL. COULD THE PRESIDENT CHOOSE NOT TO IMPLEMENT THE PART OF THE LAW PROVIDING PROTECTIONS FOR PRE-EXISTING CONDITIONS.>>THAT’S A PENDING CASE. I CANNOT TALK ABOUT IT.>>OKAY. THIS IS JUST MY CONCERN BECAUSE OF THIS EXPANSIVE VIEW. I WANT TO MOVE ONTO CONSUMER ISSUES. IN 2016, YOU WROTE AN OPINION THAT WAS LATER OVERTURNED IN WHICH YOU FOUND THE CONSUMER PROTECTION BUREAU UNCONSTITUTIONAL. THE MAJORITY RECOGNIZED THAT MILLIONS OF PEOPLE WERE DEVASTATED BY THE FINANCIAL CRISIS AND THEY UPHELD THIS BUREAU AND WE KNOW NOW IN REALTIME THE BUREAU HAS HELPED ABOUT 30 MILLION CONSUMERS OBTAIN MORE THAN $12 BILLION IN RELIEF. YOU DISSENTED IN THE CASE. I WANT TO TALK ABOUT THE CONSEQUENCES OF THIS LEGALLY. I KNOW YOU FOCUSED ON THE BUREAU STRUCTURE AND WE TALKED ABOUT THAT. YOU LOOKED AT THE RELEVANT HISTORY, AND YOU SAID THAT AGENCIES LIKE THE CFPB, THE CONSUMER FINANCIAL PROTECTION BUREAU AMOUNTS TO A HEADLESS BRANCH OF OUR GOVERNMENT AND POSE A SIGNIFICANT THREAT TO INDIVIDUAL LIBERTY, END QUOTE. DOES IT FOLLOW YOU THINK THAT OTHER INDEPENDENT AGENCIES ARE ALSO CONSTITUTIONALLY SUSPECT?>>THE SUPREME COURT HAS UPHELD SINCE 1935 THE CONCEPT AND PRACTICE OF INDEPENDENT AGENCIES. WHAT ON THE CFPB DECISION, THE STRUCTURE OF THAT AGENCY DEVASTATED FROM THE TRADITIONAL HISTORICAL PRACTICE OF INDEPENDENT AGENCIES — >>DO YOU THINK THE HUMPHRIES CASE THAT WAS 80 YEARS CORRECTLY DECIDED?>>IT’S A PRECEDENT OF THE SUPREME COURT AND REAFFIRMED MANY TIMES. ON THE CFPB CASE IS I DID NOT SAY THE AGENCY HAD TO STOP OPERATING. IT CAN CONTINUE OPERATING AND IT STILL OPERATES. WHAT MY CONSTITUTIONAL CONCERN WAS THE STRUCTURE OF THE SINGLE MEMBER HEAD THAT NEVER BEEN DONE BEFORE. MY REMEDY WOULD NOT HAVE BEEN TO INVALIDATE THE AGENCY BUT MAKE THAT PERSON REMOVABLE AT WILL.>>IT ALSO CONCERNS ME BECAUSE OTHER AGENCIES LIKE SAY THE SOCIAL SECURITY ADMINISTRATION, WHICH YOU NOTE IN THE DISSENT, IN THE OPINION ARE JUST HEADED UP BY ONE PERSON. DOES IT FOLLOW THAT AGENCY AS WELL WOULD BE UNCONSTITUTIONAL?>>AGAIN, SENATOR, MY GO FROM THE BACK DOOR WHICH IS THE REMEDY, IF THERE’S A PROBLEM IS NOT THAT THE AGENCY HAS TO STOP OPERATING. THE REMEDY IS THE PERSON IS REMOVABLE AT WILL.>>IT WOULDN’T HAVE ANYONE HEADING IT UP?>>IT WOULD HAVE A SINGLE PERSON HEADING IT UP BUT REMOVABLE AT WILL. THE AGENCY — >>I WANT TO TURN TO WHAT THE MAJORITY FELT ABOUT YOUR DISSENT. I THINK THEY RECOGNIZE THAT THE DISSENT WOULD THREATEN IF NOT ALL INDEPENDENT AGENCIES. I THINK THEY MENTION THE FTC. I WOULD ADD OTHER ONES LIKE THE FEDERAL RESERVE, SECURITY AND EXCHANGE COMMISSION. DOES IT FOLLOW YOU THINK THESE AGENCIES ARE UNCONSTITUTIONAL?>>I DIDN’T SAY ANYTHING REMOTELY LIKE THAT. ALL I WAS TALKING ABOUT WAS A SINGLE HEADED INDEPENDENT AGENCY.>>THAT’S LIKE SOCIAL SECURITY.>>THE FTC, NLRB, THE FED, MULTI-MEMBER INDEPENDENT AGENCIES. THE CONCERN I EXPLAINED WITH THE SINGLE DIRECTOR GOES BACK TO YOUR POINT ABOUT FEDERALIST 47, WHICH IS YOU HAVE AN INDEPENDENT AGENCY THAT COMPLETELY UNACCOUNTABLE TO CONGRESS OR UNACCOUNTABLE TO CONGRESS OR THE PRESIDENT, THERE’S ONE PERSON IN CHARGE, THAT BECOMES AN EXTREMELY POWERFUL POSITION.>>OKAY. SOCIAL SECURITY HAS BEEN LIKE THAT FOR A LONG TIME. MY ISSUE IS WHEN WE’RE TALKING ABOUT EXECUTIVE POWER, YOU TALKED ABOUT HOW CONGRESS HAS TO STEP IN. THAT’S A LOT OF THE ARGUMENT YOU’VE MADE TO SOME OF MY COLLEAGUES. IN THIS CASE, CONGRESS STEPPED IN. THEY SAID WE HAVE THIS MAJOR FINANCIAL CRISIS. THAT’S WHY WE STARTED THIS AGENCY. WE HAVE DONE THIS. YOU COME IN, IN A VERY MINORITY OPINION, AND YOU SAY THAT IT’S UNCONSTITUTIONAL. I WOULD THROW ANOTHER FEDERALIST SOCIETY AT YOU. YOU QUOTED HAMILTONES HAMILTON FROM FEDERALIST 83 WHEN HE SAID THE RULES OF LEGAL INTERPRETATION ARE RULES OF COMMON SENSE. RIGHT?>>YES.>>OKAY. IT JUST DOESN’T MAKE COMMON SENSE TO ME THAT WE WOULD STLOU — THROW AN AGENCY LIKE THAT. YOU’RE PUTTING YOUR JUDGMENT IN THE PLACE OF CONGRESS.– THROW AN AGENCY LIKE THAT. YOU’RE PUTTING YOUR JUDGMENT IN THE PLACE OF CONGRESS. THROW AN AGENCY LIKE THAT. YOU’RE PUTTING YOUR JUDGMENT IN THE PLACE OF CONGRESS. THROW AN AGENCY LIKE THAT. YOU’RE PUTTING YOUR JUDGMENT IN THE PLACE OF CONGRESS.>>I DIDN’T THROW THE AGENCY OUT. I SAID IT COULD CONTINUE OPERATING AS IT WAS. THE ONLY WAS INSTEAD OF FOR CAUSE REMOVE BUT AT WILL. THERE WAS A JUDGE WHO SAID THE WHOLE AGENCY HAD TO STOP. I SPECIFICALLY AND EXPLICITLY REJECTED THAT AS A REMEDY AND SAID THE AGENCY CAN CONTINUE OPERATING DOING IMPORTANT CONSUMER WORK.>>LET’S GO TO ONE MORE YOU DID THROW OUT THE RULES AND THAT’S NET NEUTRALITY. THAT IS A BEDROCK OF A FREE AND OPEN INTERNET ALLOWING CONSUMERS AND SMALL BUSINESSES TO HAVE AN EQUAL PLAYING FIELD. IN BFCC, IN YOUR OWN OPINION YOU WENT OUT OF YOUR WAY TO DISSENT AGAINST THE PROTECTIONS. THIS WAS THE FULL D.C. COURT AGAINST YOU AND THE RULES WERE UPHELD BY A PANEL OF JUDGES APPOINTED BY PRESIDENTS FROM BOTH PARTIES. HERE YOU RELIED ON SOMETHING ELSE YOU CALLED THE MAJOR RULES DOCTRINE. I KNOW IT’S BEEN MENTIONED IN THE 2015 CASE BUT CLAIMING THE FCC LACK AUTHORITY TO ISSUE NET NEUTRALITY RULES BECAUSE IN YOUR WORDS, THEY WERE MAJOR. IT FEELS LIKE CONGRESS SET UP THE FCC AND THE FCC IS DOING THEIR JOB AND REALLY COMPLEX POLICY MATTER. THEY PUT FORWARD THESE RULES ON NET NEUTRALITY AND YOU INSERT YOUR JUDGMENT TO SAY THEY ARE UNCONSTITUTIONAL. TELL ME WHY I’M WRONG.>>THE MAJOR RULES DOCTRINE IS ROOTED IN SUPREME COURT PRECEDENT AND THEREFORE IS A LOWER COURT JUDGE I WAS BOUND TO APPLY IT. IT WAS APPLIED BY THE MAJORITY OPINION IN THE BROWN AND WILLIAMSON OPINION. JUSTICE BRYER WROTE ABOUT IT IN THE 1980s. THE SUPREME COURT ADOPTED PPIED. WHAT THAT OPINION SAYS IS IT’S OKAY FOR CONGRESS TO DELEGATE VARIOUS MATTERS TO THE EXECUTIVE AGENCIES TO DO RULES. ON MAJOR QUESTIONS OF MAJOR ECONOMIC OR SOCIAL SIGNIFICANCE, WE EXPECT CONGRESS TO SPEAK CLEARLY BEFORE SUCH A DELEGATION. THAT’S NOT HAPPENED IN MY VIEW WITH RESPECT TO NET NEUTRALITY AND I FELT BOUND BY PRECEDENT.>>MINOR RULES WILL BE OKAY BUT NOT MAJOR? YOU SAID YOU’LL KNOW THE DIFFERENCE WHEN YOU SEE IT. THAT’S WHY OTHER JUDGES WENT WITH THE TRADITIONAL AND PRECEDENTED VIEW OF HOW TO LOOK AT THIS. YOU USED THE 1986 LAW REVIEW ARTICLE BY JUSTICE BRYER. WHAT I’M TRYING TO SHOW IS THIS PATTERN TO SAY CONGRESS SHOULD STEP IN AND DO EVERYTHING. YOU’RE STEPPING IN IN THESE CASES.>>I WOULD SAY IT’S A PATTERN OF ADHERING TO PRECEDENT.>>OKAY. IT SEEMS THAT THE PRECEDENT WHEN YOU LOOK AT, FOR INSTANCE, CHEVRON. I KNOW THE WHITE HOUSE TOUTED THE FACT THAT YOU OVERRULED THE FEDERAL AGENCY ACTION 75 TIMES AND YOU LED THE EFFORT TO REIN EXECUTIVE AGENCIES IN THE PRESS RELEASE WHEN YOU WERE ANNOUNCED. WHAT DID THAT MEAN THAT YOU LED THE EFFORT?>>I DON’T KNOW. I DON’T KNOW WHAT THAT’S REFERRING TO. I KNOW MY RECORD. I’M SURE I’VE UPHELD AGENCY DECISIONS DOZENS AND DOZENS AND DOZENS OF TIMES. WE GET AGENCY CASES. THAT’S WHAT WE DO ON THE D.C. CIRCUIT. I’VE UPHELD THEM IN THE SAME RANGE, IF NOT MANY MORE TIMES. I THINK MY RECORD WILL SHOW THAT I’VE RULED BOTH WAYS ON THOSE KINDS OF CASES. I DON’T THINK I HAVE A PRO THIS OR PRO THAT RECORD.>>ONE LAST QUESTION ON THIS AREA OF CONSUMERS. THE MAJOR RULES DOCTRINE RAISES QUESTIONS, TO ME, ABOUT YOUR VIEW OF CHEVRON. IT’S 1984 CASE. I WOULD THINK IT’S SETTLED OFF BUT I’LL ASK YOU THAT WERE COURTS GENERALLY REFER TO REASONABLE INTERPRETATIONS OF AGENCIES. WHAT WOULD YOU REPLACE IT WITH IF YOU’RE NOT GOING TO UPHOLD IT?>>THE PRECEDENT SAYS THAT COURTS SHOULD DEFER TO REASONABLE AGENCY INTERPRETATIONS OF AMBIGUOUS STATUTES. THE WHOLE QUESTION OF AMBIGUITY HAS BECOME A DIFFICULT INQUIRY, AT LEAST IT HAS BEEN IN MY 12 YEARS OF EXPERIENCE. HOW MUCH AMBIGUITY IS ENOUGH? I WROTE AN ARTICLE IN THE HARVARD LAW REVIEW ABOUT JUDGES DISAGREEING AND HOW MUCH IS ENOUGH. I ALSO SAID THAT CHEVRON SERVES GOOD PURPOSES. STATUTORY TERMS LIKE FEASIBLE OR REASONABLE OR TERMS OF DISCRETION THAT ARE GRANTED TO AGENCIES AND COURTS SHOULD BE CAREFUL NOT TO UNDULY SECOND GUESS AGENCIES. I MADE CLEAR THAT COURTS SHOULDN’T BE UNDULY SECOND GUESSING AGENCIES.>>I WANT TO MOVE TO CAMPAIGN FINANCE, IF THOSE WERE THE DOCUMENTS THAT I RECEIVE, AND WERE ABLE TO MAKE PUBLIC. I THINK THEY ALL SHOULD BE MADE PUBLIC, THE ONES THAT — I DON’T LIKE THIS COMMITTEE CLASSIFICATION BUT THE CHAIRMAN DID ALLOW ME TO MAKE THOSE PUBLIC. IN THOSE DOCUMENTS, IN ONE E-MAIL FROM MARCH 2002, YOU DISCUSS LIMITS ON CONTRIBUTIONS TO CANDIDATES SAYING I’VE HEARD VERY FEW PEOPLE SAY THE LIMITS ON CONTRIBUTIONS TO CANDIDATES ARE UNCONSTITUTIONAL. ALTHOUGH I FOR ONE TEND TO THINK THOSE LIMITS HAVE SOME CONSTITUTIONAL PROBLEMS. I JUST WANT TO KNOW WITH THE BUCKLEY CASE FROM ’76, IT SEEMS LIKE YOU HAVE SOME ISSUES WITH THOSE RULES. HOW DO YOU CREATE THE PRECEDENT CREATED BY BUCKLEY AND WILL YOU RESPECT IT?>>THE BUCKLEY DIVIDE, AS YOU KNOW SENATOR, IS THAT EXPENDITURES ON THE ONE SIDE CONGRESS DOES NOT HAVE SUBSTANTIAL AUTHORITY TO REGULATE CONTRIBUTION LIMITS. ON THE OTHER SIDE CONGRESS DOES HAVE AUTHORITY TO REGULATE AND HAS DONE SO. WITH RESPECT TO CONTRIBUTION LIMITS, HOWEVER, THERE ARE CASES WHERE THE CONTRIBUTION LIMITS ARE TOO LOW. SUBSEQUENT E-MAIL YOU’RE TALKING ABOUT, THE SUPREME COURT IS TWICE STRUCK DOWN CONTRIBUTION LIMITS. ONE IN THE CASE RANDALL VERSUS — >>I’M AWARE OF THESE CASES.>>JUST BRYER WROTE. BUCKLEY VERSUS VALLEJO IS IMPORTANT PRECEDENT.>>MY ISSUE IS WE HAD PAST NOMINEES WHO SAID THEY WOULD HONOR PRECEDENT AND THEN THEY JOINED CITIZENS UNITED OPINION. YOU TALK ABOUT HOW CONGRESS SHOULD STEP IN AND THEY DID AND WE TRIED AND IT WAS STRUCK DOWN WITH CITIZENS UNITED. THAT’S THE PROBLEM. WE’RE LEFT WITH NOTHING BUT A CONSTITUTIONAL AMENDMENT. I VIEW THIS WAS A LAW MAKING FROM THE COURT THE CITIZENS UNITED CASE. I’M TRYING TO FIGURE OUT WHERE YOU ARE ON THIS. DO YOU THINK CONTRIBUTION LIMITS HAVE CONSTITUTIONAL PROBLEMS AND WHAT CAN CONGRESS ACTUALLY DO TO REIN IN THE FLOOD OF MONEY?>>AS A D.C. CIRCUIT JUDGE I’VE UPHELD CONTRIBUTION LIMITS IN TWO IMPORTANT CASES. ONE RULING AGAINST THE RNC. IN RNC VERSUS FCC. I REJECTED THAT CHALLENGE. ANOTHER BLOOMING VERSUS FEC CONTRIBUTIONS BY FOREIGN CITIZENS TO U.S. ELECTION CAMPAIGNS. I UPHELD THAT LAW.>>LET’S TALK ABOUT THAT CASE. YOUR OPINION LEFT THE UNLIMITED SPENDING OF FOREIGN NATIONALS IN THE UNITED STATES ON ISSUE ADVOCACY. THE SAME KIND OF ACTIVITY THAT WE SAW BY THE RUSSIANS IN 2016 AND A RUSSIAN COMPANY FACING CHARGES BROUGHT BY SPECIAL COUNSEL MUELLER CITED YOUR OPINION IN ARGUING TO HAVE THESE CHARGES THROWN OUT. DOES THAT CONCERN YOU AT ALL?>>OUR CASE DEALT WITH CONTRIBUTION LIMIT. THAT’S WHAT I WAS OPINING ON IN THAT CASE. I’M NOT SURE THAT THERE ARE THE EXPENDITURE LIMITS WAS NOT BEFORE US IN THAT CASE. I DON’T WANT TO OPINE ON EXPENDITURE.>>YOU SAID KNOW IT WAS THAT OPINION WAS CITED BY — >>I DON’T KNOW IF IT WAS CITED. I DON’T WANT TO TALK ANY CASE. MY CASE I UPHELD LIMITS ON CONTRIBUTIONS IN THE RNC CASE AND THE BLOOMING CASE AND THE SUPREME COURT HAS UPHELD CONSTITUTION LIMITS BUT STRUCK THEM DOWN WHEN THEY’RE TOO LOW.>>IN LIGHT OF THE RECENT INDICTMENTS, DO YOU STAND BY YOUR INTERPRETATION OF THE CAMPAIGN ACT IN THAT CASE?>>I’M NOT SURE — >>WE CAN GO BACK TO IT ON THE SECOND ROUND. I LOOK FORWARD TO IT. ANTI-TRUST. SENATOR LEE AND I RUN THE ANTI-TRUST SUBCOMMITTEE. WE TALK ABOUT THIS IN MY OFFICE. THE SUPREME COURT HAS MADE IT HARDER TO ENFORCE OUR ANTI-TRUST LAWS. THIS COULD NOT BE HAPPENING AT A MORE TROUBLING TIME. WE’RE EXPERIENCING A WAVE OF INDUSTRY CONSOLIDATION. I’M CONCERNED THAT THE COURT, THE ROBERTS COURT IS GOING DOWN THE WRONG PATH AND YOUR MAJOR ANTI-TRUST OPINIONS WOULD HAVE REJECTED CHALLENGES TO MERGERS THAT MAJORITIES FOUND TO BE ANTI-COMPETITIVE. I’M AFRAID YOU’RE GOING TO MOVE IT EVEN FURTHER DOWN THE PATH STARTING WITH 2008, A WHOLE FOODS CASE WHERE WHOLE FOODS ATTEMPTED TO BUY WILD OATS MARKET. VERY COMPLICATED. I’M GOING TO GO TO THE GUTS OF IT FOR MY OPINION. THE MAJORITY OF COURTS AND THE — WHAT HAPPENED IS REPUBLICAN MAJORITY CHALLENGES A DEAL AND YOU DISSENT AND YOU APPLY YOUR OWN PRICING TEST TO THE MERGER. MY QUESTION IS WHERE DID YOU GET THIS PRICING TEST?>>I WOULD HAVE AFFIRMED THE DECISION BY THE DISTRICT JUDGE IN THAT CASE WHICH ALLOWED THE MERGER AND THE DISTRICT JUDGE IS JUDGE FRIEDMAN. AN APPOINTEE OF PRESIDENT CLINTONS. I WAS FOLLOWING HIS ANALYSIS OF THE CASE. THE CASE IS VERY FACT SPECIFIC. REALLY TURNS ON WHETHER THE LARGER SUPERMARKET SELLS ORGANIC FOOD OR NOT.>>WHERE DID YOU GET THE PRICING TEST? YOU USED DIFFERENT TESTS. I’M TRYING TO FIGURE THAT OUT WHAT LEGAL AUTHORITY ACTUALLY REQUIRES A GOVERNMENT TO SATISFY YOUR STANDARD TO BLOCK A MERGER? I REMEMBER IN OUR DISCUSSION YOU CITED THESE NON-MERGER GUIDELINES THAT YOU USED TO COME UP WITH THIS TEST.>>YOU’RE LOOK AT THE EFFECT ON COMPETITION AND WHAT THE SUPREME COURT HAS TOLD US IS TO LOOK AT THE EFFECT ON CONSUMERS AND WHAT’S THE EFFECT ON THE PRICES FOR CONSUMERS AND THE THEORY OF THE DISTRICT COURT IN THIS CASE WAS THAT THE MERGER WOULD NOT CAUSE AN INCREASE IN PRICES BECAUSE THEY ARE COMPETING IN A BROADER MARKET THAT INCLUDED LARGER SUPERMARKETS THAT ALSO SOLD ORGANIC FOOD. THE QUESTION IS THERE AN ORGANIC FOOD MARKET SOLELY OR A BROADER SUPERMARKET MARKET.>>I WAS TRYING TO GET TO WHERE THAT NEW TEST CAME FROM. IN THE SECOND CASE YOU DISSENTED IN THE ANTHEM CASE LAST YEAR. YOUR OPINION WOULD HAVE ALLOWED A MERGER BETWEEN TWO OF THE FOUR NATIONWIDE HEALTH INSURANCE PROVIDERS WHICH WAS EVENTUALLY BLOCKED BECAUSE IT WOULD LEAD TO HIGHER PRICES FOR HEALTH CARE IN THE LONG TERM AND WHAT WAS VIEWED AS POOR QUALITY INSURANCE. HERE YOU WENT A STEP FARTHER THAN WHOLE FOODS. INSTEAD OF TRYING TO RAISE THE BAR ON WHAT THE GOVERNMENT WOULD PROVE TO BLOCK A MERGER, YOUR OPINION SUGGESTS YOU WOULD LOWER THE BAR FOR MERGING COMPANIES TRYING THE PROVE THEIR DEALS WILL NOT HARM COMPETITION. DOES THAT REPRESENT YOUR VIEWS WHEN IT COMES TO MERGERS?>>IT’S A VERY FACT SPECIFIC CASE. THE MARKET IN QUESTION WERE TWO HEALTH INSURERS THAT WERE NOT SELLING IN THE DOWNSTREAM MARKET BUT ACTING AS PURCHASING AGENTS FOR EMPLOYERS WHERE THEY NEGOTIATED PRICES WITH HOSPITALS AND DOCTORS. THE THEORY, AT LEAST WHICH I UNDERSTOOD, BY HAVING A STRONGER PURCHASING AGENT, THEY WOULD BE ABLE TO NEGOTIATE LOWER PRICES FROM HOSPITALS AND DOCTORS FOR THE EMPLOYERS. I POINTED OUT THE END OF MY DISSENT IS THERE MIGHT BE A PROBLEM IN THE UPSTREAM MARKET BUT I DIDN’T THINK THERE WAS A PROBLEM IN THE MARKET THAT WAS A ISSUE IN THE CASE.>>YOU DID SUGGEST THE COURT SHOULD DISREGARD TWO CASES THAT HAVE BEEN WIDELY RELIED ON FOR MORE THAN 50 YEARS. YOU THINK COURTS NOW APPLYING 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 CASES FOCUSED ON THE EFFECT ON COMPETITION — I MEAN ON COMPETITORS, NOT COMPETITION. IN THE 1970s, THE SUPREME COURT MOVED TO FOCUS ON COMPETITION WHICH IN TURN IS REALLY CONSUMER — WHAT WOULD BE THE EFFECT ON CONSUMERS.>>SENATOR CRUZ.>>JUST ONE.>>PROCEED.>>THIS ANTI-TRUST ISSUE IS VERY DENSE. AGAIN, I’M VERY CONCERNED ABOUT WHAT’S GOING ON WITH THESE CASES NATIONALLY AND THEN WHEN I LOOK AT THESE TWO CASES, IT APPEARS YOU WOULD GO EVEN FURTHER. I THINK WE NEED LESS MERGERS NOT MORE.>>WHEN I REFER TO THE OVERLAP OF CHEVRON AND STATE FARM, THAT’S WHEN I WAS TALKING ABOUT WORDS LIKE FEASIBLE AND REASONABLE. I WASN’T SURE I WAS CLEAR ON THAT.>>THANK YOU.>>SENATOR CRUZ.>>THANK YOU, MR. CHAIRMAN. WELCOME BACK JUDGE KAVANAUGH.>>THANK YOU.>>THANK YOU FOR YOUR SERVICE. BEFORE I GET INTO QUESTIONS I WANT TO TAKE A MINUTE TO RECOGNIZE AND THANK THE OUTSTANDING WORK AT THIS HEARING BY THE CAPITOL POLICE IN TERMS OF IN A CALM AND PROFESSIONAL MANNER DEALING WITH THE UNFORTUNATE DISRUPTIONS WE HAVE SEEN AND MAINTAINING AN ENVIRONMENT WHERE THIS HEARING CAN FOCUS ON THE RECORD OF SUBSTANCE OF THIS NOMINEE. THANK YOU FOR THE TREMENDOUS WORK THAT THE MEN AND WOMEN ARE DOING.>>MR. PRESIDENT, I THINK WE WOULD LIKE TO SECOND SENATOR CRUZ. SECOND THAT ON OUR SIDE AS WELL.>>THANKS BOTH OF YOU. I’VE EXPRESSED IT 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 EMPIRE. NOT WEARING THE UNIFORM OF ONE LITIGANT OR ANOTHER. SOME POLICY OR ANOTHER. SOMEONE WHO READS THE LAW AS WRITTEN. INFORMED BY HISTORY AND PRECEDENT. INFORMED BY CANNONS OF INSTRUCTION THAT ARE SETTLED IN STATUTORY CASES. THAT TREATS LITIGANTS WITH RESPECT. THAT WRITES OPINIONS AND THAT ARE UNDERSTANDABLE RESOLVE THE ISSUES. I THINK CIVILITY HELPS MAKE A GOOD JUDGE. A GOOD JUDGE UNDERSTANDS THAT REAL PEOPLE ARE AFFECTED IN THE REAL WORLD. THE LITIGANTS IN FRONT OF THEM BUT ALSO THE OTHER PEOPLE AFFECTED BY THE DECISIONS THE JUDGE DECIDES OR THE COURT DECIDES IN PARTICULAR CASE. A GOOD JUDGE PAYS ATTENTION TO PRECEDENT. CONSTITUTIONAL CASES ROOTED IN ARTICLE 3 AND CRITICALLY IMPORTANT TO THE STABILITY AND PREDICTABILITY AND INTEREST THAT ARE PROTECTED BY THE LAW. THERE’S A NUMBER OF THINGS THAT GO INTO MAKING A GOOD JUDGE. A WORK ETHIC. IT’S A HARD WORK TO DIG IN AND FIND THE RIGHT ANSWER IN PARTICULAR CASE. I THINK THAT’S CRITICALLY IMPORTANT AS WELL. JUDICIAL TEMPERAMENT. THERE’S A LOT OF FACTORS THAT GO INTO IT. THOSE ARE SOME OF THEM. I’M SURE THERE’S MORE.>>ONE OF THE THINGS I WAS LOOKING AT, IT’S STRIKING BOTH OVER HEATED 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 JUDGE MERRIT GARLAND. HE WAS APPOINTED TO THE D.C. CIRCUIT BY BILL CLINTON AND HE WAS PRESIDENT OBAMA’S NOMINEE TO THE U.S. SUPREME COURT. WHAT I FOUND THAT WAS STRIKING IS THAT IN THE 12 YEARS YOU’VE BEEN ON THE D.C. CIRCUIT, OF ALL THE MATTERS THAT YOU AND CHIEF JUDGE GARLAND VOTED ON TOGETHER, THAT YOU VOTED TOGETHER 93% OF THE TIME. NOT ONLY THAT, OF THE 28 PUBLISHED OPINIONS THAT YOU’VE AUTHORED WHERE JUDGE GARLAND WAS ON THE PANEL, CHIEF JUDGE GARLAND JOINED 27 OUT OF THE 28 OPINIONS TOGETHER. IN OTHER WORDS, HE JOINED 96% OF THE PANEL OPINIONS THAT YOU’VE WRITTEN WHEN HE WAS ON THE PANEL WITH YOU AND THE SAME IS TRUE IN THE REVERSE. OF THE 30 PUBLISHED OPINIONS THAT CHIEF GARLAND HAS WRITTEN, YOU’VE JOINED 28 OUT OF 30 OF THEM. OVER 93% OF THOSE OPINIONS. WHAT IS YOUR REACTION TO THOSE DATA AND THE LEVEL?>>I THINK WE’RE TRYING HARD TO FIND COMMON GROUND AND TO — AS I’VE SAID BEFORE, HE’S A GREAT JUDGE, A GREAT CHIEF JUDGE. HE’S VERY CAREFUL AND VERY HARD WORKING AND WE WORK WELL TOGETHER AND TRY TO READ THE PRECEDENT AS WRITTEN. HE’S A JUDGE WHO DOES NOT, LIKE I TRY TO BE AS WELL, A JUDGE WHO IS NOT TRYING TO IMPOSE ANY PERSONAL PREFERENCES BUT TAKE THE LAW AS WRITTEN. I’VE TRIED D THAT PROBABLY EXPLAINS SOME OF THAT. I THINK JUDGES ARE DISTINCT FROM POLICY MAKERS. I THINK THAT SHOWS UP WHEN YOU DIG INTO THE ACTUAL DETAILS OF HOW COURTS OPERATE AND GO ABOUT THEIR BUSINESS. YOU KNOW WELL SENATOR FROM ALL YOUR ARGUMENTS AND SEEING JUDGES DECIDE CASES IN REALTIME. I THINK THOSE STATISTICS REFLECT THE REALITY OF HOW JUDGES GO ABOUT THEIR BUSINESS. LIKE I’VE SAID SEVERAL TIMES I THINK THE SUPREME COURT IS TEAM OF NINE. I TRY TO BE TEAM PLAYER ON THE TEAM OF NINE. OF COURSE THERE WILL BE AGREEMENTS AT TIME. IF YOU HAD THAT MIND SET WE’RE A COURT WITHOUT SITTING ON DIFFERENT SIDES OF AN AISLE, WITHOUT BEING IN SEPARATE CAUCUS ROOMS TRY TO FIND WHAT THE RIGHT ANSWER IS. I THINK THERE’S A RIGHT ANSWER IN MANY CASES. MAYBE, YOU KNOW, A RANGE OF REASONABLE ANSWERS AND SOME OTHERS. I THINK THAT’S WHAT THOSE STATISTICS REFLECT TO ME.>>YOU TALK ABOUT YOUR POLICY PREFERENCES OR WHAT THE LAW MANDATES. HOW WOULD YOU DESCRIBE A JUDICIAL ACTIVIST?>>I WOULD DESCRIBE A JUDICIAL ACTIVIST 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. SO A JUDGE WHO STRIKES DOWN A LAW AS UNCONSTITUTIONAL WHEN THE TEXT AND PRECEDENT DON’T SUPPORT THAT RESULT OR A JUDGE IN THE OTHER DIRECTION WHO UPHOLDS THE LAW AS CONSTITUTIONAL WHEN THE TEXT AND PRECEDENT WOULD SUGGEST THAT LAW’S IN FACT INCONSTITUTIONAL. SO TOO IN STATUTORY CASES, IT’S THE SAME PRINCIPLE. WHEN A JUDGE DOES NOT STICK WITH THE COMPROMISES THAT YOU REACHED AND WRITTEN INTO THE TEXT OF THE STATUTE PASSED BY CONGRESS AND SIGNED BY THE PRESIDENT. BUT THINKS THE JUDGE CAN IMPROVE ON IT IN SOME WAY OR MAYBE PICKS A SNIPIT OUT OF A COMMITTEE REPORT AND SAYS I AGREE WITH THAT REVIEW IN THE COMMITTEE REPORT AND I’LL SUPER IMPOSE THAT ON TO THE TEXT OF THE STATUTE PASSED BY CONGRESS. THAT IS THE TEXTBOOK DEFINITION OF A JUDICIAL ACTIVIST ADDING TO OR SUBTRACTING FROM THE TEXT AS INFORMED BY THE PRECEDENT.>>YOUR TIME ON THE D.C. CIRCUIT YOU WROTE A NUMBER OF OPINIONS ADDRESSING SEPARATION OF POWERS. WHAT THE SEPARATION OF POWERS? WHY DOES IT MATTER? WHY SHOULD AN AMERICAN AT HOME WATCHING THIS ON C-SPAN CARE ABOUT THE SEPARATION OF POWERS?>>PEOPLE SHOULD CARE ABOUT SEPARATION OF POWERS BECAUSE IT PROTECTS INDIVIDUAL LIBERTY. IT’S THE FOUNDATIONAL PROTECTION 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 SYSTEM TO HELP PROTECT THOSE INDIVIDUAL LIBERTIES. SO IT WORKS IN TWO WAYS OR MORE THAN TWO WAYS. THE INDEPENDENT JUDICIARY THAT ENFORCES THE RIGHTS. SECONDLY, THE WHOLE STRUCTURE AS I EXPLAINED TILTS TOWARDS LIBERTY IN YOU START WITH A SYSTEM AND HARD TO PASS A LAW TO AFFECT WHAT CAN YOU OR CAN’T DO. HARD TO GET A LAW THROUGH CONGRESS. THAT’S BY DESIGN. THE BY CAMMERALISM AND DECIDING THE PRESIDENT IS DESIGNED TO PREVENT THE PASSIONS OF THE MOMENT FROM OVERWHELMING AND ENACTING A LAW BASED ON PASSIONS AS OPPOSED TO A MORE PROCESS. THAT HELPS PROTECT INDIVIDUAL LIBERTY. THEN EVEN AFTER YOU PASS A LAW, THE PRESIDENT HAS AS I WAS DISCUSSING SOME EXECUTIVE BRANCH HAS PROSECUTORAL DISCRETION WHEN AND HOW TO ENFORCE PARTICULAR LAWS. WHO IS PROTECTED BY THE DISCRETION? ULTIMATELY, IT PROTECTS INDIVIDUAL LIBERTY. EVEN WHEN THE CONGRESS PASSED A LAW AND THE EXECUTIVE IS ENFORCED A LAW, THAT DOESN’T MEAN YOU GO STRAIGHT TO PRISON. YOU GO — IF YOU’RE CHARGED WITH CRIME, YOU GO BEFORE AN INDEPENDENT JUDICIARY. AND JUST TO ADD FURTHER PROTECTIONS FOR LIBERTY, YOU HAVE A — THE JURY PROTECTION THAT’S ARE IN THE ORIGINAL TEXT OF THE CONSTITUTION AND ALSO REFLECTED IN THE BILL OF RIGHTS. SO IN CHECK AFTER CHECK AFTER CHECK THE CONSTITUTION TILTS TOWARD INDIVIDUAL LIBERTY. THE SEPARATION OF POWER IS ALSO ENSURES THAT THERE ARE CHECKS ON BRANCHES. SO WHAT DO WE DO, FOR EXAMPLE, MEMBERS OF CONGRESS DON’T SERVE FOR LIFE. YOU HAVE TO RUN FOR RE-ELECTION. AND THAT’S A CHECK, AGAIN, TO HELP PROTECT INDIVIDUAL LIBERTY TO HELP ENSURE ACCOUNTABILITY AS WELL. SO TOO OF PRESIDENTS. SO THE DOCUMENTS ARE CHALK FULL OF PROTECTIONS OF INDIVIDUAL LIBERTIES AND THAT’S WHY IT MATTERS AS MUCH AS THE INDIVIDUAL PROTECTIONS THAT ARE IN THE BILL OF RIGHTS AND ALSO IN ARTICLE I SECTION 9 AND ARTICLE I SECTION 10 OF THE ORIGINAL CONSTITUTION.>>CAN YOU SHARE WITH THIS COMMITTEE WHY FEDERALISM MATTERS AND WHY AMERICANS WATCHING THIS HEARING AT HOME SHOULD CARE ABOUT THE PRINCIPLES OF FEDERALISM?>>FEDERALISM MATTERS FOR SEVERAL REASONS, SENATOR. AGAIN, IT HELPS FURTHER INDIVIDUAL LIBERTY IN A SENSE OF — ADDITIONAL PROTECTION. SO LET ME GIVE YOU AN EXAMPLE. IF THEY PROTECT YOU TO UNUSUAL SEARCHES AND SEIZURES. THE STATE CONSTITUTION CAN PROTECT YOU EVEN FURTHER UNDER THAT OR THE STATE LEGISLATURE MIGHT PROTECT YOU FURTHER. SO FURTHER PROTECTIONS OF INDIVIDUAL LIBERTY. FEDERALISM ALSO OPERATES IN A DIFFERENT WAY. A LABORATORY OF DEMOCRACY IN THE SENSE OF EXPERIMENTATION AROUND THE COUNTRY. IT’S NOT ALWAYS THE SAME VIEWS AND IN TEXAS THAT THERE MIGHT BE IN CALIFORNIA, FOR EXAMPLE, ON PARTICULAR ISSUES. AND SO YOU HAVE DIFFERENT LAWS.>>THANKFULLY.>>AND DIFFERENT LAWS IN THOSE STATES. PAVING OF THE ROADS, LEAF COLLECTION, TRASH COLLECTION, THE LOCAL SCHOOLS WHICH IS PROBABLY THE MOST DIRECT IMPACT THAT MANY PEOPLE HAVE IN THE GOVERNMENT, THE LOCAL COURT SYSTEM. MY MOM, OF COURSE, WHATS A STATE TRIAL JUDGE, THE WHOLE SYSTEM OF STATE GOVERNMENT IS MOST PEOPLE’S INTERACTION WITH GOVERNMENT AND FEDERALISM IN THAT SENSE MAKES — ENSURES ACCOUNTABILITY. YOU KNOW BETTER USUALLY. YOUR LOCAL AND STATE ELECTED OFFICIALS AND YOU CAN MAKE YOUR VIEWS KNOWN ON WHATEVER GOVERNMENTAL ISSUES IS OF CONCERN TO YOU.>>SO WHAT IS THE IMPORTANCE AND RELEVANCE OF THE 10th AMENDMENT?>>THE 10th AMENDMENT IS PROTECTS FEDERALISM IN THE SENSE OF ENSURING THAT THE STATES HAVE INDEPENDENT SOVEREIGN — THEY MAKE CLEAR WHAT IS ALSO CLEAR FROM THE STRUCTURE BUT REINFORCES THE IDEA THAT THE STATES ARE SOVEREIGN ENTITIES THAT HAVE INDEPENDENT AUTHORITY UNDER THE CONSTITUTION. AND THAT THEY HAVE THE STATUS AS SEPARATE SOVEREIGNS UNDER THE CONSTITUTION AND SO YOU ARE SOLICITOR GENERAL OF TEXAS, OF COURSE, YOU REPRESENTED THE STATE OF TEXAS IN MANY CASES WHERE THE SOVEREIGNTY OF THE STATE OF TEXAS TO PASS ITS LAWS AND TO ENFORCE ITS LAWS WAS CRITICAL. IT’S FOR THE PROTECTION OF INDIVIDUAL LIBERTY. I THINK THE TENTH AMENDMENT UNDERSCORES THAT. IT ALSO MAKES — IT HELPS UNDERSCORE SOMETHING ELSE WHICH IS THE STATES CONDITIONED BE COMMANDEERED BY THE FEDERAL GOVERNMENT. THE FEDERAL GOVERNMENT CAN’T ORDER STATES TO DO CERTAIN THINGS. SO THAT IS AN IMPORTANT PART OF THE CONSTITUTION AS WELL.>>WHAT DO YOU MAKE OF THE NINTH AMENDMENT? ROBERT BORK FAMOUSLY DESCRIBED IT AS AN INK BLOT. DO YOU SHARE THAT ASSESSMENT?>>I THINK THAT THE NINTH AMENDMENT AND THE PRIVILEGES AND IMMUNITIES CLAUSE AND THE SUPREME COURT’S DOCTRINE OF SUBSTANTIVE DUE PROCESS ARE THREE ROADS THAT SOMEONE MIGHT TAKE THAT ALL REALLY LEAD TO THE SAME DESTINATION UNDER THE PRECEDENT OF THE SUPREME COURT WHICH IS THAT THE SUPREME COURT PRECEDENT PROTECTS CERTAIN UNNUMERATED RIGHTS SO THAT THE RIGHTS ARE ROOTED IN HISTORY AND TRADITION. AND JUST KAGAN EXPLAINED THIS WELL IN HER CONFIRMATION HEARING THAT THE GLUXBERG TEST IS QUITE IMPORTANT FOR ALLOWING THAT PROTECTION OF UNENUMERATED RIGHTS WHICH THE PRECEDENT DEFINITELY ESTABLISHES. BUT AT THE SAME TIME, MAKING CLEAR THAT WHEN DOING THAT JUDGES AREN’T JUST ENACTING THEIR OWN POLICY PREFERENCES INTO THE CONSTITUTION. AN EXAMPLE OF THAT IS THE OLD PIERCE CASE WHERE OREGON PASSED A LAW THAT SAID EVERYONE IN THE STATE — THIS IS IN 1920s, EVERYONE IN THE STATE OF OREGON HAD TO ATTEND — EVERY STUDENT HAD TO ATTEND A PUBLIC SCHOOL. A CHALLENGE WAS BROUGHT BY THAT BY PARENTS WHO WANTED TO SEND THEIR CHILDREN TO A PAROCHIAL SCHOOL, RELIGIOUS SCHOOL. THE SUPREME COURT UPHELD THE RIGHTS OF THE PARENTS TO SEND THEIR CHILDREN TO A RELIGIOUS PAROCHIAL SCHOOL AND STRUCK DOWN THAT OREGON LAW. THAT’S ONE OF THE FOUNDATIONS OF THE UNENUMERATED RIGHTS. SO HOW YOU GET THERE IS — AS YOU KNOW WELL, SENATOR — THERE’S STACKS OF LAW REVIEWS WRITTEN TO THE CEILING ON ALL OF THAT WHETHER IT’S PRIVILEGES AND IMMUNITY BUT THEY ALL LEAD TO THE GLUXBERG TEST.>>LET’S TALK A LITTLE BIT ABOUT THE FIRST AMENDMENT. FREE SPEECH. WHY IS THAT AN IMPORTANT PROTECTION FOR THE AMERICAN PEOPLE?>>IT’S ONE OF THE BED ROCKS OF AMERICAN LIBERTY, THE ABILITY TO SAY WHAT YOU THINK, TO SPEAK POLITICALLY, FIRST OF ALL, ABOUT A POLICY ISSUES AND TO SPEAK ABOUT, FOR EXAMPLE, WHO YOU WANT TO SUPPORT FOR ELECTED OFFICE IS A CRITICAL PART OF THE FREE SPEECH PRINCIPLE. BUT IT’S BROADER THAN THAT. IT’S 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 THE BEST ANSWER EMERGES AFTER DEBATE AND OVER TIME AND THAT FREEDOM OF SPEECH IS IMPORTANT TO HELP ADVANCE THAT CAUSE OF THE DEBATE. AND IT’S IMPORTANT JUST AS AN INDIVIDUAL MATTER, I THINK, TO HAVE THAT PROTECTION WRITTEN INTO THE CONSTITUTION BECAUSE YOU MAY HAVE AN UNPOPULAR VIEW AT A PARTICULAR POINT IN TIME AND IF THAT VIEW WERE SUPPRESSED, THAT VIEW WOULD NEVER TAKE HOLD EVEN THOUGH THAT VIEW WOULD BE THE BETTER VIEW. SO IT’S A PARTICULARLY IMPORTANT IN THE SUPREME COURT PRECEDENT, I THINK, TO PROTECT UNPOPULAR VIEWS OR VIEWS THAT SEEM OUT OF FASHION OR OUT OF FASHION AT A PARTICULAR MOMENT IN TIME BECAUSE OF BOTH THE INHERENT DIGNITY THAT THAT PROVIDES TO INDIVIDUAL PEOPLE BUT ALSO FOR THE BROADER PURPOSE OF THAT ADVANCES SOCIETAL PROGRESS OR ECONOMIC PROGRESS OR SOCIAL PROGRESS. MOST GOOD IDEAS WERE UNPOPULAR AT ONE POINT OR ANOTHER AND TAKE TIME TO TAKE HOLD. I THINK THE FRAMERS UNDERSTOOD THAT. LOOK, THEY WERE — LOOK AT WHERE THEY CAME FROM AND HOW THEY HAD TO FIGHT AGAINST SUPPRESSION OF SPEECH AND SUPPRESSION ALSO OF RELIGIOUS LIBERTY, OF COURSE, IN HOW THEY CAME ABOUT. SO FREE SPEECH IS CRITICALLY IMPORTANT. AGAIN, JUSTICE KENNEDY AND JUSTICE SCALIA IN TEXAS VERSUS JOHNSON, WHAT IS MORE UNPOPULAR THAN BURNING THE AMERICAN FLAG AND, YET, THEY UPHELD THE RIGHT TO DO THAT NOT BECAUSE THEY LIKED IT AND THAT’S THE WHOLE POINT OF JUSTICE KENNEDY’S CONCURRENCE BUT BECAUSE THEY THOUGHT THE FIRST AMENDMENT HAD TO PROTECT THE MOST UNPOPULAR OF IDEAS NOORD TO ACCORD TO THE PRINCIPLE OF FREE SPEECH.>>SO YOU MENTIONED RELIGIOUS LIBERTY. RELIGIOUS LIBERTY IS ONE OF OUR FUNDMENTAL LIBERTIES. CAN YOU SHARE YOUR VIEWS ON THE IMPORTANCE OF RELIGIOUS LIBERTY AND HOW THE CONSTITUTION PROTECTS IT?>>YES, SENATOR. TO BE IN WITH IT IS IMPORTANT IN THE ROERNLG CONSTITUTION EVEN BEFORE THE BILL OF RIGHTS. THE FRAMERS MADE CLEAR IN ARTICLE SIX, 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 A LEGISLATOR, TO BECOME AN EXECUTIVE BRANCH OFFICIAL, TO BECOME A JUDGE UNDER RELIGION. RECOGNIZING THE RELIGIOUS FREEDOM AT LEAST TO SERVE IN PUBLIC OFFICE. AND THEN, OF COURSE, IN THE FIRST AMENDMENT TO THE CONSTITUTION, RATIFIED IN 1791, THE PRINCIPLE OF RELIGIOUS LIBERTIES WRITTEN RIGHT INTO THE FIRST AMENDMENT TO THE CONSTITUTION AND THE FRAMERS UNDERSTOOD THE IMPORTANCE OF PROTECTING CONSCIENCE. IT’S AKIN TO THE FREE SPEECH PROTECTION IN MANY WAYS. AND NO MATTER WHAT GOD YOU WORSHIP OR IF YOU WORSHIP NO GOD AT ALL, YOU ARE PROTECTED AS EQUALLY AMERICAN AS I WROTE IN MY OPINION. 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 CAN’T BE DENIED JUST BECAUSE OF RELIGIOUS STATUS. AND THE SUPREME COURT HAS ARTICULATED THAT PRINCIPLE IN A VARIETY OF DIFFERENT WAYS IN PARTICULAR CASES. YOU LOOK AT, FOR EXAMPLE — >>IN OTHER COUNTRIES AROUND THE WORLD, YOU KNOW, IN CHINA, FOR EXAMPLE, YOU — [ PROTESTERS YELLING ]>>SO IF YOU LOOK AT OTHER COUNTRIES AROUND THE WORLD AND YOU’RE NOT AS — YOU’RE NOT FREE TO TAKE YOUR RELIGION INTO THE PUBLIC SQUARE, YOU KNOW, CROSSES ARE BEING KNOCKED OFF CHURCHES, FOR EXAMPLE, OR YOU CAN ONLY PRACTICE IN YOUR OWN HOME. YOU CAN’T PRACTICE — YOU CAN’T BRING YOUR RELIGIOUS BELIEF INTO THE PUBLIC SQUARE.>>WITHOUT THE INFORMATION ABOUT JUDGE KAVANAUGH, YOU CAN’T TELL. MANY PEOPLE DON’T KNOW THAT HE IS LYING.>>AND BEING ABLE TO PARTICIPATE IN THE PUBLIC SQUARE IS A PART OF THE AMERICAN TRADITION I THINK AS A RELIGIOUS SPEECH, IDEAS, THOUGHTS. THAT’S IMPORTANT. SO TOO ON THE ESTABLISHMENT CLAUSE. SOME OF THOSE — [ PROTESTERS YELLING ]>>SOME OF THOSE CASES ARE, AS YOU KNOW, PARTICULARLY COMPLICATED IN THE SUPREME COURT PRECEDENT. BUT THE SUPREME COURT PRECEDENT, FOR EXAMPLE, IN THE TOWN OF GREECE CASE AND OTHERS RECOGNIZED THAT THE — SOME RELIGIOUS TRADITIONS IN GOVERNMENTAL PRACTICES ARE ROOTED IN HISTORY AND TRADITION TO BE UPHELD. AND SO IN THAT CASE THE TOWN OF GREECE CASE, THE SUPREME COURT UPHELD THE PRACTICE OF A PRAYER BEFORE A LOCAL LEGISLATIVE MEETING AND MARCH V. CHAMBERS, ALSO, A LOCAL TOWN MEETING UPHELD THAT IN A LEGISLATIVE MEETING AS WELL. SO THE RELIGIOUS TRADITION REFLECTED IN THE FIRST AMENDMENT IS FOUNDATIONAL PART OF AMERICAN LIBERTY. AND IT’S IMPORTANT FOR US AS JUDGES TO RECOGNIZE THAT AND NOT — AND RECOGNIZE, TOO, THAT AS WITH SPEECH UNPOPULAR RELIGIONS ARE PROTECTED. OUR JOB, WE CAN UNDER THE RELIGIOUS FREEDOM RESTORATION ACT CAN QUESTION THE SINCERITY OF THE RELIGIOUS BELIEF. WE CAN’T QUESTION THE REASONABLENESS OF IT. SO THE SUPREME COURT HAS CASES WITH ALL SORTS OF RELIGIOUS BELIEFS PROTECTED. JUSTICE BRENNAN THE ARCHITECT OF THAT. SO 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 COMPLIMENTARY OF EACH OTHER?>>I THINK IN GENERAL IT’S GOOD TO THINK OF THEM AS BOTH SUPPORTING THE CONCEPT OF FREEDOM OF RELIGION AND IN THE NEWDOW CASE I WROTE, TRIED TO EXPLAIN THE PRINCIPLES. I THINK IT’S IMPORTANT TO THINK THAT TO BEGIN WITH YOU’RE EQUALLY AMERICAN NO MATTER WHAT RELIGIOUS YOU ARE, IF YOU’RE NO RELIGION AT ALL. THAT IT IS ALSO IMPORTANT, THE SUPREME COURT SAID, THAT RELIGIOUS PEOPLE BE ALLOWED TO SPEAK AND TO PARTICIPATE IN THE PUBLIC SQUARE WITHOUT HAVING TO SACRIFICE IN SPEAKING IN THE PUBLIC SQUARE. I THINK BOTH CLAUSES PROTECT THE IDEA OR PROTECT AGAINST COERCING PEOPLE INTO PRACTICING A RELIGION WHEN THEY MIGHT BE OF A DIFFERENT RELIGION OR MIGHT BE OF NO RELIGION AT ALL. SO THE COERCION IDEA, I THINK, COMES OUT OF BOTH CLAUSES AS WELL. THE CASES THAT ARE ESTABLISHMENT CLAUSE CASES THAT DON’T INVOLVE COERCION, THE RELIGIOUS SYMBOLS CASES AS YOU KNOW, THAT’S A COMPLICATED BODY OF LAW. BUT EACH AREA OF THAT HAS TO BE ANALYZED IN ITS OWN SILO. I THINK IT’S GOOD TO THINK OF THE TWO CLAUSES WORKING TOGETHER FOR THE CONCEPT OF FREEDOM OF RELIGION IN THE UNITED STATES WHICH I THINK IS FOUNDATIONAL OF THE CONSTITUTION.>>WHEN YOU WERE IN PRIVATE PRACTICE, YOU REPRESENTED THE A SYNAGOGUE PRO BONO. DID YOU THAT FOR FREE. CAN YOU DESCRIBE FOR THIS COMMITTEE THAT REPRESENTATION AND WHY YOU UNDERTOOK IT?>>I UNDERTOOK THAT REPRESENTATION TO HELP A GROUP OF PEOPLE WHO WANTED TO BUILD A SYNAGOGUE BUT WERE BEING DENIED THE ABILITY TO DO THAT BASED ON A ZONING ORDINANCE THAT SEEMED TO BE THE APPLICATION AT LEAST OF A ZONING ORDINANCE IN A WAY THAT SEEMED TO BE DISCRIMINATING AGAINST THEM BECAUSE OF THEIR RELIGION. THAT MAY HAVE ALLOWED OTHER BUILDINGS TO BE BUILT THERE. BUT THEY WERE BEING BLOCKED OR AT LEAST CHALLENGED FROM BUILDING A SYNAGOGUE THERE. SO IT SEEMED TO ME POTENTIALLY A CASE OF RELIGIOUS DISCRIMINATION THAT WAS BEING USED TO TRY TO PREVENT THEM FROM BUILDING. SO I WANTED TO — I AGREED TO REPRESENT THEM BECAUSE I LIKE — I WANT TO DO PRO BONO WORK. I ALWAYS LIKE TO HELP THE COMMUNITY IN THAT CASE IN PARTICULAR I THOUGHT THESE PEOPLE WANT TO BUILD THEIR SYNAGOGUE AND HAVE THE RIGHT TO DO SO. AS I SAW IT UNDER THE LAW, I THOUGHT I COULD HELP THEM DO SO. AND WE DID PREVAIL IN THE DISTRICT COURT IN MARYLAND AND THAT SYNAGOGUE NOW STANDS AND THEY, YOU KNOW, THEY WERE VERY GRATEFUL. SO THAT IS THE KIND OF LITIGATION, THAT WAS A COUPLE YEARS I WAS AT A LAW FIRM THAT DID SOME PRO BONO WORK. THAT WAS REALLY REWARDING WORK TO HAVE A REAL EFFECT ON REAL PEOPLE ON THE PRACTICE OF THEIR RELIGION IN THE STATE OF MARYLAND. SO THAT IS SOMETHING THAT MEANS A LOT TO ME. THEY GAVE ME SOMETHING — A THING TO HANG ON THE WALL WHICH HAS HUNG ON MY WALL IN MY CHAMBERS THE WHOLE 12 YEARS I’VE BEEN THERE. IT’S A REMINDER OF A REPRESENTATION I HAD IN THE PAST AND THE IMPORTANCE OF EQUAL TREATMENT AND RELIGIOUS LIBERTY AND SUCCESSFUL PRO BONO REPRESENTATION THAT MEANT A LOT TO ME.>>WELL, I’LL NOTE SOME OF THE DEMOCRATIC SENATORS ON THIS COMMITTEE — [ PROTESTERS HECKLING ]>>SOME OF THE DEMOCRATIC SENATORS ON THIS COMMITTEE HAVE — [ PROTESTERS HECKLING ]>>THEY REPRESENT A SYNAGOGUE AGAINST THE POWER OF GOVERNMENT AS TRYING TO PREVENT ITION BUILT IS VERY MUCH AN INSTANCE THAT YOU CHOSE TO GIVE YOUR TIME AND YOUR ENERGY AND YOUR LABOR FOR FREE. TO A LITIGANT IN THE LITTLE GUY IN THAT BATTLE.>>THAT’S CORRECT, SENATOR. AND I’VE TRIED AS A JUDGE ALWAYS TO RULE FOR THE PARTY WHO HAS THE BEST ARGUMENT ON THE MERITS. AND THAT’S INCLUDED WORKERS IN SOME CASES, BUSINESSES IN OTHERS, COAL MINERS IN SOME CASES, ENVIRONMENTALISTS IN OTHERS. UNIONS IN SOME CASES. THE EMPLOYER IN OTHERS. CRIMINAL DEFENDANTS IN SOME CASES, THE PROSECUTION IN OTHERS. I HAVE A LONG LINE OF CASES IN EACH OF THOSE CATEGORIES. AND THE LITTLE GUY-BIG GUY IS NOT THE RELEVANT DETERMINATION IF YOU’RE THE LITTLE GUY, SO TO SPEAK, AND YOU ARE THE RIGHT ANSWER UNDER THE LAW, THEN YOU’LL 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 ACKNOWLEDGED THAT YOU HAD BEEN A REGISTERED REPUBLICAN AND SERVED IN A REPUBLICAN ADMINISTRATION PREVIOUSLY. BUT, OF COURSE, YOU’VE BEEN A FEDERAL JUDGE FOR 12 YEARS. DO YOU CONSIDER YOURSELF A REPUBLICAN JUDGE?>>I’M NOT SURE WHAT THE CURRENT REGISTRATION S SHORTLY AFTER I BECAME A JUDGE, I — I HAVEN’T CHANGED IT. I DON’T KNOW IF IT IS STILL LISTED. SHORTLY AFTER I BECAME A JUDGE AND VOTED IN AN ELECTION, I READ ABOUT THE SECOND JUSTICE HARLAN HAVING TO DECIDE THAT HE DIDN’T WANT TO CONTINUE VOTING WHILE BEING A FEDERAL JUDGE. AND I THOUGHT ABOUT IT THAT PRACTICE. I’LL BE FIRST TO SAY I’M NOT THE SECOND JUSTICE HARLAN AND NOT TRYING TO COMPARE MYSELF IN ANY WAY TO HIM BUT I THOUGHT THAT WAS A GOOD MODEL FOR A FEDERAL JUDGE JUST TO UNDERSCORE THE INDEPENDENCE. WE’RE NOT SUPPOSED TO PARTICIPATE IN POLITICAL ACTIVITIES, GO TO RALLIES, GIVE MONEY AND THAT KIND OF THING. AND IT SEEMED TO ME THAT VOTING IS A VERY PERSONAL EXPRESSION OF YOUR POLICY BELIEFS IN MANY WAYS AND PERSONAL BELIEFS. AND I’M NOT TRYING TO — >>LET ME ASK ONE FINAL QUESTION. MY TIME IS EXPIRING. I WANT TO END ON A LIGHTER NOTE.>>WE’VE HAD THE JOYS OF COACHING OUR DAUGHTERS IN BASKETBALL. CAN YOU TELL THIS COMMITTEE WHAT HAVE YOU LEARNED COACHING YOUR DAUGHTERS PLAYING BASKETBALL?>>WELL, IT’S BEEN A TREMENDOUS EXPERIENCE TO BE ABLE TO COACH THEM FOR LAST SEVEN YEARS AND ALL THE GIRLS ON THE TEAM AND I’VE LEARNED ABOUT SOMETHING I SAW IN MY OWN LIFE BUT THE IMPORTANCE OF COACHES TO THE DEVELOPMENT OF AMERICA’S YOUTH, TEACHERS TOO. BUT COACHES CAN HAVE SUCH AN IMPACT, I THINK, ON BUILDING CONFIDENCE. AND WHEN YOU SEE A COACH — WHEN YOU SEE THE GIRL DEVELOP CONFIDENCE OVER TIME OR YOU SEE THEIR COMPETITIVE SPIRIT, THE TEAM WORK, THE TOUGHNESS THAT’S DEVELOPED OVER TIME, THE DRIVE, YOU KNOW, WIN WITH CLASS, LOSE WITH DIGNITY, WINNING AND LOSE, THE ABILITY TO LOSE BUT STILL PUT FORTH YOUR BEST EFFORT AND SO I’VE LEARNED JUST HOW IMPORTANT I THINK I UNDERSTOOD THAT FROM MY OWN EXPERIENCE BUT LEARNED HOW IMPORTANT IT IS FOR PEOPLE, FOR COACHES AND THE EFFECT THAT YOU CAN HAVE ON PEOPLE’S LIVES AND I’VE HEARD FROM A LOT OF THE PARENTS OVER THE LAST EIGHT WEEKS WHILE I’VE BEEN IN THIS PROCESS ABOUT, YOU KNOW, THE EFFECT I HAD ON SOME OF THE GIRLS LIVES WHICH IS VERY NICE TO HEAR IN TERMS OF MY COACHING. SO LIKE I SAID YESTERDAY, COACHES HAVE SUCH AN IMPACT ON PEOPLE AND I’VE LEARNED — I’VE LEARNED THAT. THAT’S WHY SENATOR KENNEDY SAID IN MY INDIVIDUAL MEETING, I HOPE YOU KEEP COACHING. AND EITHER WAY THIS COMES OUT, I’M GOING TO TRY TO KEEP COACHING. THANK YOU, SENATOR.>>SENATOR?>>THANK YOU, CHAIRMAN GRASSLEY. THANK YOU JUDGE KAVANAUGH. AS WE DISCUSSED IN MY OFFICE AND IN A LETTER I SENT TO YOU TO FOLLOW UP, I HOPE TO QUESTION YOU TODAY ABOUT YOUR VIEWS ON RULE OF LAW, SEPARATION OF POWERS, PRESIDENTIAL POWER. AND CHAIRMAN, I’D LIKE TO ENTER INTO THE RECORD A SERIES OF ARTICLES THAT I THINK LAY SOME OF THE FOUNDATION FOR MY CONCERNS.>>WITHOUT OBJECTION SO ORDERED. GO HEAD.>>FIRST IS BRETT KAVANAUGH BY A CHICAGO PROFESSOR. THE KAVANAUGH NOMINATION MUST BE PAUSED AND ME RECUSE HIMSELF BY THIRD CIRCUIT COURT JUDGE AND NORM EISEN. BREAD KAVANAUGH’S RADICAL VIEW. BRETT KAVANAUGH IS DEDICATED TO THE PRESIDENCY. AND HIS LEGAL OPINIONS SHOW HE WOULD GIVE DONALD TRUMP UNPRECEDENTED NEW POWERS.>>IS THAT PREVIOUSLY SAID WITHOUT ORDER?>>YOU REPEATED THE THIRD ONE.>>SORRY. I WANT TO MAKE SURE I KNOW THE NAME. >>RADICAL VIEW OF EXECUTIVE POWER BY BROWN UNIVERSITY PROFESSOR COREY BRET SNOOIT SNYDER.>>THAT’S NOT A LAW PROFESSOR THOUGH, RIGHT?>>CORRECT. A RANGE OF OPINIONS FROM A RANGE OF FOLKS FROM A RANGE OF BACKGROUNDS. JUDGE, THE RULE OF LAW REQUIRES THAT THOSE WHO ARE GOVERNED AND THOSE WHO GOVERN BOTH BE BOUND BY THE LAW. AND A KEY WAY TO ENSURE AS YOU SAID IN YOUR OPENING THAT NO ONE IS OR SHOULD BE ABOVE THE LAW IS TO ENSURE THE PRESIDENT IS NOT ABOVE THE LAW BY PREVENTING HIM TO FIRE SOMEONE APPOINTED TO INVESTIGATE HIM. SITTING ON A PANEL IN 1998 YOU TOOK A DIFFERENT VIEW. YOU SAID AT THAT TIME, “THE PROSECUTOR SHOULD BE REMOVABLE AT WILL BY THE PRESIDENT.” GIVEN WHAT’S IN YOUR RECORD, A LONG RECORD OF WRITING AND SPEAKING ON THIS TOPIC, I THINK THERE IS LEGITIMATE CAUSE FOR CONCERN ABOUT YOUR VIEWS ON PRESIDENTIAL POWER AND WHETHER IT’S POSSIBLE PRESIDENT TRUMP CHOSE YOU TO YOU WOULD PROTECT HIM. PLEASE ANSWER DIRECTLY. DO YOU STILL BELIEVE A PRESIDENT CAN FIRE AT WILL A PROSECUTOR WHO IS CRIMINALLY INVESTIGATING HIM?>>WELL, THAT’S A QUESTION OF PRECEDENT AND A QUESTION OF — THAT COULD COME BEFORE ME EITHER AS A SITTING JUDGE ON THE D.C. CIRCUIT OR IF I’M CONFIRMED AS A SUPREME COURT JUSTICE. SO I THINK THAT QUESTION IS GOVERNED BY PRECEDENT THAT YOU’D HAVE TO CONSIDER. UNITED STATES VERSUS NIXON, OF COURSE, THE SPECIAL PROSECUTOR REGULATION IN THAT CASE WAS AT ISSUE IN UNITED STATES VERSUS RICHARD NIXON.>>JUDGE, IF YOU COULD, I’M JUST ASKING WHETHER YOU STAND BY YOUR RECORD SOMETHING THAT YOU CHOSE TO WRITE IN 1998. YOU EXPRESSED A VIEW AT THE TIME THAT A PRESIDENT CAN FIRE AT WILL A PROSECUTOR CRIMINALLY INVESTIGATING HIM. IS THAT STILL YOUR VIEW?>>THAT WOULD DEPEND.>>I’M NOT ASKING FOR A RESUSCITATION OF PRECEDENT. I’M JUST TRYING TO MAKE SURE I UNDERSTAND IF YOU STAND BY THAT PUBLICLY EXPRESSED VIEW BACK IN 1998.>>I THINK ALL I CAN SAY, SENATOR THAT, WAS MY VIEW IN 1998.>>OKAY. WELL THEN LET’S MOVE TO A MORE RECENT STATEMENT THAT I THINK IS EQUALLY IMPORTANT. IN THE WAKE OF THE WATERGATE PRESIDENTIAL SCANDAL PRECIPITATED BY PRESIDENT WHO COMMITTED SOME CRIMES AND THEN INVESTIGATE, CONGRESS PASSED THE INDEPENDENT COUNSEL STATUTE, A STATUTE WHICH RESTRICTED WHEN THE PRESIDENT CAN FIRE AN INDEPENDENT COUNSEL. AND DURING A RECENT SPEECH IN 2016, YOU DESCRIBE THIS LAW AS, “A GOO-GOO POST BATTER GATE REFORM AND A CONSTITUTIONAL TRAVESTY.” DO YOU STAND BY YOUR CRITICISM OF THE INDEPENDENT COUNSEL STATUTE AS A CONSTITUTIONAL TRAVESTY?>>WELL, THAT WAS UNDERSTATED COMPARED TO WHAT MEMBERS OF THIS COMMITTEE AND OTHERS SAID IN 1999 WHEN THE DECISION WAS MADE.>>BUT JUDGE, I’M INTERESTED IN YOUR VIEWS, NOT VIEWS OF THE MEMBERS OF THE COMMITTEE. WHEN YOU CHOSE IN A PUBLIC SPEECH AS A SITTING JUDGE TO SAY THAT STATUTE WAS A CONSTITUTIONAL TRAVESTY, YOU HAD SOMETHING IN MIND. WHAT ARE YOU YOUR VIEWS ON THIS STATUTE AND WHY DO YOU VIEW IT AS A CONSTITUTIONAL TRAVESTY?>>LET ME MAKE A FEW THINGS CLEAR. THIS IS THE OLD INDEPENDENT COUNSEL STATUTE. THAT IS DIFFERENT FROM THE SPECIAL COUNSEL SYSTEM THAT I SPECIFICALLY SAID IS CONSISTENT WITH OUR TRADITIONS. I SAID THAT IN THE GEORGETOWN ARTICLE AS YOU KNOW. I SAID THAT ACTUALLY IN THE PHH CASE MOST RECENTLY. THE STATUTE YOU’RE TALKING ABOUT, THE INDEPENDENT COUNSEL STATUTE WAS A DIFFERENT REGIME THAT CONGRESS ITSELF DECIDED NOT TO REAUTHORIZE IN 1999. I THINK SENATOR DURBIN SAID IT WAS UNRESTRAINED, UNACCOUNTABLE, UNCONSTITUTIONAL STATUTE.>>I’M INTERESTED IN YOUR VIEWS, JUDGE. YOU SAID IT WAS A CONSTITUTIONAL TRAVESTY, WHAT DID YOU MEAN?>>I THINK I MEANT WHAT JUSTICE KAGAN SAID WHEN SHE SAID AT STANFORD A FEW YEARS AGO THAT JUSTICE SCALIA’S DISSENT WAS ONE OF THE GREATEST DISSENTS EVER WRITTEN AND GOT BETTER EVERY YEAR. IDENTIFYING JUSTICE SCALIA’S DISSENT IS ONE OF THE GREATEST DISSENTS EVER WRITTEN. JUSTICE KAGAN SEEMED TO BE SAYING THIS IS THE ONLY READING OF IT, THE MORRISON V. OLSON DECISION WAS WRONG.>>I’LL ACTUALLY STRONGLY DISAGREE. YOU OFFERED THAT QUOTE, THAT CITE OF JUSTICE KAGAN WHEN WE MET. I WAS STRUCK. PERHAPS I SHOULD CALL JUSTICE KAGAN AND SAY SHE IS ONE OF YOUR JUDICIAL HEROES. I THINK THAT CITATION IS TRUE BUT MISLEADING IN CONTEXT. SHE WROTE IN A FAMOUS HARVARD LAW REVIEW REJECTING THE THEORY WHICH IS AT THE ROUTE ROOT OF THE DISSENT. I THINK SHE WAS TALKING ABOUT THE WRITING NOT THE LEGAL THEORY. I’M TRYING TO GET TO THE POINT — >>I THINK I DISAGREE WITH THAT, SENATOR.>>I LOOK FORWARD TO EXCHANGING PAPERS ON THIS TOMORROW. IT IS AN IMPORTANT POINT.>>BUT IT IS. I READ THAT ARTICLE. SHE WAS THEN PROFESSOR KAGAN. I THINK SHE WAS REFERRING TO THE CONCEPT OF INDEPENDENT AGENCIES GENERALLY. SO THE HUMPHRIES EXECUTOR ON ONE OF THE CASES. [ PROTESTER HECKLING ]>>I THINK SHE’S REFERRING THERE, AT LEAST I READ HER AS REFERRING THERE TO INDEPENDENT AGENCIES ARE TRADITIONAL AND PERMISSIBLE. THIS IS DIFFERENT FROM THE TRADITIONAL AGENCY THAT’S EXISTED WITH THE FEDERAL TRADE COMMISSION, THE SECURITIES AND EXCHANGE COMMISSION. SO I DID NOT READ HER OLD ARTICLE TO IN ANY WAY — >>LET’S PUT IT THIS WAY, SHE MAY HAVE COMPLIMENTED SCALIA’S DISSENT IN THE WRITING OR HOLDING. YOU CRITICIZED THE INDEPENDENT COUNSEL STATUTE AS A CONSTITUTIONAL TRAVESTY. 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 JUST TWO YEARS AGO?>>WELL, IT WAS MORRISON V. OLSON WAS A ONE OFF CASE ABOUT A ONE OFF STATUTE THAT HASN’T EXISTED FOR 20 YEARS. THE STATUTE IS GONE. I READ THAT MANY TIMES IN SPEECHES I’VE GIVEN. BUT THAT STATUTE, IT’S REAL IMPORTANT TO BE CLEAR HERE, I KNOW YOU KNOW THIS, SENATOR, SO EVERYONE UNDERSTANDS, THAT STATUTE HASN’T EXISTED SINCE 1999. SPECIAL COUNSEL — >>BUT IT IS STILL GOOD LAW, IS IT NOT? BUT THE HOLDING BY THE SUPREME COURT IN MORRISON V. OLSON, EVEN THOUGH THE STATUTE PASSED INTO HISTORY, MORRISON V. OLSON AS A DECISION OF THE SUPREME COURT IS STILL GOOD LAW. IN FACT, YOUR OWN CIRCUIT SAID SO FORCEFULLY TONIGHT.>>I THINK THE HUMPHRIES EXECUTOR — >>I THINK THAT IS A YES OR NO QUESTION. THE D.C. CIRCUIT HELD THIS YEAR THAT MORRISON V. OLSON IS STILL GOOD LAW. CORRECT?>>I THINK THEY WERE APPLYING HUMPHRIES EXECUTOR, THEY MAY HAVE CITED MORE.>>THEY LITERALLY SAID, MORRISON REMAINS VALID AND BINDING PRECEDENT AND — >>AND HOW IT APPLIED HUMPHRIES.>>CRITICIZED MINORITY AS FLYING IN THE FACE OF MORRISON.>>AND AGAIN, WE’RE — WE’RE TALKING ABOUT INDEPENDENT AGENCIES. SO THE TRADITIONAL INDEPENDENT AGENCIES ON THE ONE HAND AND THE OLD INDEPENDENT COUNSEL REGIME THAT IS LONG GONE ON THE OTHER. IT WAS A SERIOUS MISTAKE. SENATOR DURBIN’S WORDS UNRESTRAINED AND UNACCOUNTABLE, UNCONSTITUTIONAL.>>SO WHAT I THINK — WHAT I’M CONCERNED ABOUT, JUDGE, IS NOT SO MUCH WHETHER THERE ARE MEMBERS OF THIS COMMITTEE OR OTHER JUSTICES WHO VIEW THE INDEPENDENT COUNSEL STATUTE AS A SERIOUS MISTAKE, BUT WHETHER YOU VIEW MORRISON V. OLSON AND THE MAJORITY HOLDING THERE AS A SERIOUS MISTAKE. SO LET’S MOVE TO THAT POINT IF I COULD. IN MORRISON V. OLSON, THE COURT UPHELD A RESTRICTION ON THE PRESIDENT’S POWER TO FIRE THE INDEPENDENT COUNCIL. IN FACT, BY A VOTE OF 7-1. IT’S AN OPINION WRITTEN BY YOUR FIRST JUDICIAL HERO. IT WAS ONLY JUSTICE SCALIA WHO DISSENTED IN A WELL CRAFTED DISSENT. FOR THOSE SEVEN JUSTICES, THEY WROTE AN IMPORTANT DECISION WHICH I BELIEVE YOU HAVE CHALLENGED AND CRITICIZED BECAUSE IT RESTRAINED THE PRESIDENT’S POWER TO FIRE THE INDEPENDENT COUNSEL. YOU WERE ASKED AT A PUBLIC EVENT TO NAME A CASE THAT DESERVED TO BE OVERTURNED, ANY CASE. AND AFTER A PREGNANT PAUSE, YOU SAID WELL, I CAN THINK OF ONE. THERE IS SOME CHUCKLING. AND THEN YOU SAID WELL, SURE. MORRISON V. OLSON. I’M STRUCK BY THAT HAVING WATCHED THAT SPEECH. NOT BUCK V. BELL, CASE THAT’S, YOU KNOW, ARE TAUGHT TO ALL FIRST YEAR LAW STUDENTS AS TERRIBLE EXAMPLES OF SHAMEFUL DECISIONS. NO, YOU CHOSE MORRISON V. OLSON TO SAY IT’S BEEN OVERTURNED WHICH I DISAGREE WITH, AND I WOULD PUT THE FINAL NAIL IN THE COFFIN. SO HERE’S A RECENT PUBLIC STATEMENT BY A SITTING D.C. CIRCUIT JUDGE WHO IS NOW BEFORE ME AS A NOMINEE TO SERVE ON THE SUPREME COURT. SO I HAVE A QUESTION. WOULD YOU VOTE TO OVERTURN MORRISON?>>SENATOR, FIRST OF ALL, KORAMATSU HAS BEEN OVERTURNED AND BUCK V. BELL IS A DISGRACE.>>RIGHT. SO IT IS STRIKING YOU DIDN’T CHOOSE EITHER OF THEM. YOU REACH OUT AND SAY OH, THIS OLD — 30-YEAR-OLD DECISION ABOUT A STATUTE LONG GONE, THAT’S THE ONE I’M GOING TO HOLD UP TO GET RID OF.>>AND I REALLY DID HAVE JUSTICE KAGAN’S COMMENT FOREMOST IN MIND. I THOUGHT SHE HAD ALREADY TALKED ABOUT MORRISON V. OLSON AND — >>NOTHING TO DO WITH THE VIEW OF PRESIDENTIAL POWER?>>WELL, I’VE WRITTEN ABOUT THE SPECIAL COUNSEL SYSTEM. AND I’VE SAID IN THE 1999 GEORGETOWN ARTICLE THAT SPECIAL COUNSEL SYSTEM IS THE TRADITIONAL APPROACH THAT IS USED WHEN THERE IS A CONFLICT OF INTEREST IN THE EXECUTIVE BRANCH. THERE A NEED FOR AN OUTSIDE COUNSEL. I SAID THAT IS TRADITIONAL. I SAID THAT AGAIN IN THE PHH CASE.>>SPECIAL COUNSEL FIREABLE AT WILL OR ONLY FOR CAUSE? WHAT IS YOUR CONCEPTION?>>THAT IS THE HYPOTHETICAL WHAT YOU’RE ASKING ME. I THINK WHAT THAT DEPENDS ON IS THERE SOME KIND OF RESTRICTION ON FOR CAUSE PROTECTION EITHER REGULATE TORELY OR STAT TORELY THAT IS PERMISSIBLE THAT IS DIFFERENT FROM THE OLD INDEPENDENT COUNSEL, FOR EXAMPLE.>>THERE WERE A LOT OF MOVING PARTS TO IT ALL OF WHICH WERE NOVEL. AND TOGETHER PRODUCED JUSTICE XA — SCALIA’S DISSENT.>>SO GIVEN YOUR ENTHUSIASM FOR JUSTICE SCALIA’S DISSENT, YOU SAID YOU WOULD PUT THE FINAL NAIL IN, WOULD YOU VOTE TO OVERTURN MORRISON?>>SIR, I’M NOT GOING TO SAY MORE THAN WHAT I SAID BEFORE.>>I THINK WHAT YOU SAID BEFORE IS CLEAR. I THINK YOUR ENTHUSIASM FOR OVERTURNING MORRISON IS UNMISTAKABLE. [ PROTESTERS HECKLING ] SHAME ON YOU AND SHAME ON ALL OF YOU!>>I WANT TO REPEAT TWO THINGS, SENATOR, THAT ARE IMPORTANT. ONE IS HUMPHRIES EXECUTOR IS THE PRECEDENT THAT STANDS. I CALLED IT AN ENTRENCHED PRECEDENT IN AN OPINION ON INDEPENDENT AGENCIES GENERALLY. AND TWO IS THE SPECIAL COUNSEL SYSTEM BOTH IN THE PHH DECISION RECENTLY AND IN THE OLD GEORGETOWN LAW JOURNAL ARTICLE I SPECIFICALLY SAID THAT THAT’S THE TRADITIONAL WAY THAT CRIMINAL INVESTIGATIONS PROCEED WHEN THERE’S A CONFLICT OF INTEREST AND THE USUAL JUSTICE DEPARTMENT PROCESS IS NOT APPROPRIATE.>>IT’S BEEN SETTLED LAW NOW FOR 83 YEARS NOW, RIGHT? EARLY ON YOU SAID THAT YOU WOULD BE WILLING TO OFFER VIEWS ON LONG SETTLED CASES. CAN YOU JUST TELL ME IF THE HUMPHRIES EXECUTOR WAS SIGNED? A KEY DIFFERENCE HERE IS WHETHER YOU’LL SAY THAT SOMETHING WAS RIGHTLY DECIDED. I’M STRUCK ABOUT. THIS IN YOUR OWN OPINION IN YOUR DISSENT IN PHH, YOU WENT INTO A LONG CRITICISM OF HUMPHRIES EXECUTOR. THAT’S HOW I READ IT. YOU LAID OUT A VERY STRONG ARTICULATION OF THIS UNITARY EXECUTIVE THEORY. THE THEORY THAT THE PRESIDENT IS ENVIEWED WITH ALL OF THE POWER OF THE EXECUTIVE BRANCH WHICH IS THE CORE OF SCALIA’S DISSENT. IT IS A RADICAL THEORY REJECTED BY THE SUPREME COURT, I WOULD ARGUE. AND YOU GO ON TO THEN SAY THAT HUMPHRIES EXECUTOR, YEAH, IT’S LONG SETTLED. BUT YOU KNOW, IF WE WERE TO OVERTURN IT, IT WOULDN’T MEAN ELIMINATION OF INDEPENDENT AGENCIES. WHY DID YOU NEED TO GO THERE? WHY HAVE THAT CONVERSATION IF THIS LONG SETTLED CASE IS ACTUALLY WELL REASONED?>>WHAT I SAID IN THE PHH CASE, HUMPHRIES EXECUTOR IS THE PRECEDENT THAT GOVERNS INDEPENDENT AGENCIES AND APPLIES DOZENS OF TIMES, HUMPHRIES EXECUTOR AND REFERRED TO IT THAT WAY, WHAT CONCERNS ME CONSTITUTIONALLY AS A JUDGE IN THE PHH CASE WAS THAT THE CFPB DID NOT FOLLOW THE TRADITIONAL MODEL OF INDEPENDENT AGENCIES AND THEREFORE DEPARTED FROM THIS TRADITIONAL EXCEPTION ONE MIGHT SAY TO THE IDEA THAT A SINGLE PRESIDENT CONTROLS THE EXECUTIVE BRANCH. AND I EXPLAINED ALL OF THAT THAT THE — HAVING ONE HEAD OF AN INDEPENDENT AGENCY BOTH DIMINISHED PRESIDENTIAL AUTHORITY MORE THAN HUMPHRIES EXECUTOR AND POSED A SERIOUS THREAT TO INDIVIDUAL LIBERTY. THAT MAKES A PERSON REMOVABLE AT WILL.>>SO IT WAS ESSENTIALLY ABOUT WHETHER OR NOT THE HEAD OF THE FTC COULD BE REMOVABLE AT WILL OR HAVE A GOOD CAUSE REMOVABLE PROTECTION.>>RIGHT. PRESIDENT ROOSEVELT WANTED TO FIRE HUMPHREY WHO WAS A REPUBLICAN HOLDUP.>>WILL YOU SIMPLY STATE IT’S WELL REASONED, WELL DECIDED, LONG SETTLED LAW?>>I’LL SAY IT’S AN IMPORTANT PRECEDENT — >>IT’S TROUBLING TO ME THAT YOU CAN’T SAY IT WAS WELL DECIDED.>>AGAIN, I’LL FOLLOW WHAT THE EIGHT NOMINEES — >>WAS MARCHBURY MADISON WELL DECIDED?>>OF COURSE IT IS. THE CONCEPT OF JUDICIAL REVIEW WASN’T EVEN INVENTED IN MARCHBURY VERSUS MADISON. IT IS RIGHT HERE IN THE CONSTITUTION AS I READ IT AND REFERRED TO IN FEDERALIST 78. WE SAY THAT MARCHBURY CREATED CONCEPT OF JUDICIAL REVIEW. IT EXISTS HERE. IT IS A CORRECT APPLICATION.>>SO LET ME BRING THIS BACK TO A CURRENT CONTEXT AND WHY IT IS IMPORTANT.>>I DIDN’T FINISH MY ANSWER.>>WE HAVE A SERIES OF STATEMENTS ABOUT YOU ABOUT ENTHUSIASM FOR OVERTURNING MORRISON. YOU’RE NOT GOING TO COMMENT ON THAT HERE.>>YOU ARTICULATE THIS THEORY THAT WOULD GIVE THE PRESIDENT SIGNIFICANTLY MORE POWER AND IF HUMPHRIES EXECUTOR IS AT ANY RISK, WE MIGHT THEN SEE A WHOLE SERIES OF AGENCIES MOVED OR WHOLE SERIES OF LAW ESTABLISHED PROTECTIONS FROM AT WILL REMOVAL AT SOME RISK. LET ME JUST MAKE SURE I GET THIS RIGHT. IN YOUR VIEW, CAN CONGRESS RESTRICT THE REMOVAL OF ANY OFFICIAL IN THE EXECUTIVE BRANCH?>>UNDER THE SUPREME COURT PRECEDENT WHICH A PLIED MANY TIMES, HUMPHRIES AND REFERRED TO IT AS AN ENTRENCHED PRESIDENT DENT, CONGRESS HAS RESTRICTED THE REMOVAL OF INDEPENDENT AGENCIES HEADS AND THAT IS LAW THAT IS IN PLACE FOR A LONG TIME.>>DECADES. I THINK IT HAS SEEN A ONE OFF CASE ABOUT A STATUTE THAT DOESN’T EXIST ANYMORE AND THAT HUMPHRIES IS THE PRECEDENT ON INDEPENDENT AGENCIES. NOW YOU MAY DISAGREE WITH ME ON THAT. I THINK THAT IS THE PREMISE WHICH SHE SPOKE. I DON’T PUT WORDS IN HER MOUTH. BUT THAT CERTAINLY THE PREMISE ON WHICH I SPOKE. I WAS NOT INTENDING TO DO ANYTHING OF TWO THINGS. I WAS NOT INTENDING TO SAY ANYTHING ABOUT TRADITIONAL SPECIAL COUNSELS WHICH I EXPLICITLY DISTINGUISHED MULTIPLE TIMES OVER THE YEARS.>>SO I’M JUST CONCERNED. I’M HAVING DIFFICULTY GETTING WHAT I THINK IS A CLEAR AND DECISIVE ANSWER FROM YOU ON A NUMBER OF THINGS. WOULD YOU OVERTURN MORRISON? WHAT IS YOUR VIEW OF EXECUTIVE THEORY? IS IT APPROPRIATE FOR A PRESIDENT TO FIRE A SPECIAL COUNSEL INVESTIGATING HIM? I’M JUST GOING TO COME BACK TO A DECISION THAT YOU RENDERED THIS YEAR, THIS PHH DECISION. AND I URGE FOLKS WHO ARE HAVING ANY INTEREST IN THIS OR TROUBLE FOLLOWING IT TO JUST READ YOUR DECISION IN THIS DECISION — IN THIS CASE. BECAUSE YOU LAY OUT, 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 A SPECIAL PROSECUTOR SHOULD BE FIREABLE AT WILL BY THE PRESIDENT OR COULD BE PROTECTED FROM BEING FIRED BY THE WYMS OF THE PRESIDENT. THIS IS A THEORY REJECTED BY THE D.C. CIRCUIT AND A NUMBER OF MEMBERS OF THIS COMMITTEE IN A RECENT VOTE, A BIPARTISAN VOTE, ADVANCING A BILL THAT IS PREDICATED ON THE WHIED THAT CONGRESS CAN IMPOSE SOME RESTRICTIONS ON THE EXECUTIVE’S POWER TO FIRE AT WILL THE EXECUTIVE BRANCH TO THE OFFICERS.>>JUST WITH RESPECT, SENATOR, I THINK YOU’RE SIGNIFICANTLY OVERREADING WHAT I WROTE IN THAT CASE. I DID NOT IN ANY WAY SAY THAT THE TRADITIONAL INDEPENDENT AGENCIES ARE IN ANY WAY CONSTITUTIONALLY PROBLEMATIC. I TOOK THAT AS THE BASELINE ON WHICH I SAID THAT THIS NEW AGENCY DEPARTED FROM THAT TRADITIONAL MODEL AND WAS PROBLEMATIC. I DID NOT CAST DOUBT ON HUMPHRIES IN THAT CASE. AT LEAST AS I READ IT. YOU KNOW, I GUESS YOU DON’T AGREE WITH THE OPINION. BUT I EXPLAINED IN GREAT DETAIL WHY I THOUGHT THIS DEVIATION FROM HUMPHRIES MATTERED AS A MATTER OF HISTORICAL PRACTICE.>>LET’S GO TO THE FEW MINUTES THAT I HAVE LEFT TO THE QUESTION OF INVESTIGATIONS. THIS IS ALSO SOMETHING THAT YOU HAVE WRITTEN ABOUT. YOU SPOKE ABOUT. IT’S RELATED, I THINK, TO THIS ISSUE. NOW BACK IN GEORGETOWN ON A PANEL IN 1998, YOU SAID, AND I QUOTE, IT MAKES NO SENSE AT ALL TO HAVE AN INDEPENDENT COUNSEL INVESTIGATE THE CONDUCT OF THE PRESIDENT. IF THE PRESIDENT WERE THE SOUL SUBJECT OF A CRIMINAL INVESTIGATION, I WOULD SAY NO ONE SHOULD BE INVESTIGATING THAT. IS THAT STILL YOUR VIEW THAT IF THERE IS CREDIBLE EVIDENCE THAT A PRESIDENT COMMITTED CRIMES NO ONE SHOULD INVESTIGATE IT?>>THAT’S NOT WHAT I SAID, SENATOR. SO TWO THINGS ON THAT. ONE, THE INDEPENDENT COUNSEL, IT’S JUST IMPORTANT BECAUSE PEOPLE FORGET THIS IS DIFFERENT FROM THE SPECIAL COUNSEL SYSTEM. SO IT’S VERY IMPORTANT. I SPECIFICALLY IN THAT GEORGETOWN LAW JOURNAL APPROVED OF THE TRADITIONAL SPECIAL COUNSEL SYSTEM.>>AND THE TRADITIONAL SPECIAL COUNSEL SYSTEM HAS A SPECIAL COUNSEL THAT CAN BE FIRED AT WILL BY THE PRESIDENT, CORRECT?>>WELL, IN THE WATERGATE SITUATION THERE WAS A REGULATION THAT PROTECTED THE SPECIAL COUNSEL FROM THAT.>>WHAT HAPPENED TO THE SPECIAL COUNSEL IN WATERGATE?>>WELL THERE WAS A NEW REGULATION THEN PUT IN PLACE AS YOU KNOW AND THEN UNITED STATES VERSUS RICHARD NIXON THAT NEW REGULATION WAS PARSED PRETTY CAREFULLY. AND THEN MORE GENERALLY — >>THIS IS EXACTLY WHY YOUR QUOTE THAT THE INDEPENDENT COUNSEL STATUTE WAS A GOO-GOO POST WATERGATE REFORM GAVE ME SOME HESITATION.>>BUT THATS WITH A STATUTE PUT IN WELL AFTER WATERGATE, OF COURSE, 1978. IN WATERGATE ITSELF, WHAT THE SYSTEM — THAT WAS IN PLACE WAS THE TRADITIONAL SPECIAL COUNSEL SYSTEM WITH A NEW REGULATION PUT IN AFTER THE EPISODE YOU’RE REFERRING TO. AND THE SPECIAL — AND THEN WHEN THE INDEPENDENT COUNSEL SYSTEM CAME UP IN 1999 FOR RE-AUTHORIZATION, THERE WAS EVERYONE HERE, EVERYONE AGREED IT WAS — I THINK I’M NOT — >>YOU’RE NOT ALONE.>>I’M NOT EXAGGERATING TO SAY THE QUOTE YOU PUT UP BEFORE THAT ONE IS UNDERSTATING WHAT EVERYONE HERE SAID ABOUT THE INDEPENDENT COUNSEL SYSTEM.>>IN A 1999 ARTICLE IN THAT EXACT PERIOD, 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 THAT. IS THAT STILL YOUR VIEW, JUDGE? IS IT STILL YOUR VIEW THAT IT’S CONSTITUTIONALLY DUBIOUS FOR A CRIMINAL PROSECUTOR TO INVESTIGATE THE PRESIDENT?>>I NEVER TAKEN A POSITION ON CONSTITUTIONALITY. ALL I’VE DONE IS POINT OUT THAT AS I DID IN THE MINNESOTA LAW REVIEW ARTICLE THAT CONGRESS MIGHT WANT TO CONSIDER THE BALANCE OF — THAT’S WHEN PRESIDENT OBAMA WAS IN OFFICE.>>SO THIS IS JUST A POLICY JUDGEMENT. >>IF I HAVE A CONSTITUTIONAL CASE COME BEFORE ME AS A JUDGE ON THE D.C. CIRCUIT OR IF CONFIRMED ON THAT COURT, I’LL HAVE AN OPEN MIND. I’LL LISTEN TO THE ARGUMENTS. I’LL DIG INTO THE HISTORY. I’VE SEEN ALL SIDES OF. THIS I’LL HAVE A COMPLETELY OPEN MIND ON THE CONSTITUTIONAL ISSUE AND, AGAIN, BRIEFS AND ARGUMENTS, I THINK I’VE ALSO SHOWN A CAPACITY TO — IF I’M PRESENTED WITH A BETTER ARGUMENT THAN SOMETHING I’VE HAD BEFORE TO ADOPT THE BETTER ARGUMENT. I CERTAINLY HAVE DONE THAT. A GOOD EXAMPLE OF THAT IN THE NATIONAL SECURITY CONTEXT AND THE FIRST CASE. I POINTED OUT HOW I’D RECONSIDER SOMETHING I’D WRITTEN BEFORE IN A NATIONAL SECURITY CONTEXT. I’M NOT A — BUT THE LARGER POINT IS THAT I’VE NOT TAKEN A POSITION ON CONSTITUTIONALITY BEFORE.>>WELL, I’LL JUST COME BACK TO A POINT WE’VE NOW TALKED ABOUT SEVERAL TIMES. IN SEVERAL DIFFERENT CONTEXTS, IN SEVERAL DIFFERENT WAYS, YOU’VE CHOSEN TO MAKE A CONSTITUTIONAL POINT EITHER EXPRESSING ENTHUSIASM OR OVERTURNING A 30-YEAR-OLD LONG SETTLED PRECEDENT IN MORRISON V. OLSON OR ARGUING FOR THE UNITARY EXECUTIVE THEORY THAT SCALIA ADVANCED OR I’LL GIVE YOU ANOTHER QUOTE IN, A DIFFERENT 2016 SPEECH, YOU SAID JUSTICE SCALIA NEVER WROTE A BETTER OPINION THAN DISTENT ON MORRISON V. OLSON. BUT YOU SAID YOU BELIEVE HIS VIEWS WERE ONE DAY BE THE LAW OF THE LAND. I ASSUME HERE YOU’RE TALKING ABOUT THE CONSTITUTIONAL ANALYSIS IN SCALIA’S DISSENT AND EXPRESSING A HOPE, AN EXPECTATION THAT IT WILL SOME DAY BE THE LAW OF THE LAND. YOU SIT BEFORE ME AS A NOMINEE TO BE IN A SEAT WHERE THAT WILL BE IMMINENTLY WITHIN YOUR REACH.>>AGAIN, SENATOR, I JUST WANT TO AVOID MELDING A LOT OF DIFFERENT THINGS INTO ONE. BECAUSE THEY’RE VERY IMPORTANT TO KEEP DIFFERENT HERE. THE FIRST IS THE INDEPENDENT COUNSEL STATUTE AND I VIEW MORRISON AS ONLY ABOUT THE INDEPENDENT COUNSEL STATUTE. I REALIZE YOU MAY HAVE A DIFFERENT VIEW ON. THAT BUT IF IT’S ONLY ABOUT THE INDEPENDENT COUNSEL’S STATUTE AS I SEE IT AND THE INDEPENDENT COUNSEL STATUTE DOESN’T EXIST ANYMORE, THAT’S WHERE, YOU KNOW, THAT’S WHY JUSTICE KAGAN FELT FREE TO COMMENT ABOUT MORRISON AS WELL. AND THEN ON SPECIAL COUNSELS, I’VE SAID WHAT I’VE REPEATED MANY TIMES HERE, ON INVESTIGATION AND INDICTMENT OF A SITTING PRESIDENT, NUMBER ONE, I’VE NEVER TAKEN A POSITION ON IT. AND NUMBER TWO, IT’S IMPORTANT TO UNDERSCORE THE JUSTICE DEPARTMENT FOR 45 YEARS THIS IS THE JUSTICE DEPARTMENT, NOT ME. THE JUSTICE DEPARTMENT FOR 45 YEARS HAS TAKEN THE POSITION AND WRITTEN OPINIONS THAT A SITTING PRESIDENT MAY NOT BE INDICTED WHILE IN OFFICE BUT IT HAS TO BE DEFERRED, NOT IMMUNITY, BUT A DEFERRAL. AND RANDY MOSS WHO IS HEAD OF PRESIDENT CLINTON’S OFFICE OF LEGAL COUNSEL WROTE A VERY LONG OPINION ON THAT. HE’S NOW A PRESIDENT OBAMA AIN’T POSITIVED — APPOINTED HIM AS A DISTRICT JUDGE. I’M NOT SAYING I DISAGREE OR AGREE WITH. THAT THAT IS THE JUSTICE DEPARTMENT VIEW FOR 45 YEARS. SO BEFORE A CASE LIKE THIS WOULD COME BEFORE THE COURTS, WHETHER I’M ON THE D.C. CIRCUIT OR OTHERWISE, THE JUSTICE DEPARTMENT PRESUMABLY WOULD HAVE TO CHANGE ITS POSITION. THAT’S ONE. TWO, A PROSECUTOR AT SOME POINT IN THE FUTURE WOULD HAVE TO DECIDE TO SEEK AN INDICTMENT THAT — OF A SITTING PRESIDENT AT SOME POINT. AND, THREE, IT WOULD HAVE TO BE CHALLENGED IN COURT. THEN ALL THE BRIEFS AND ARGUMENTS AND THEN COME UP ON APPEAL IN THE D.C. CIRCUIT. THERE ARE A LOT OF THINGS THAT HAVE TO HAPPEN BEFORE THIS HYPOTHETICAL THAT YOU’RE PRESENTING EVEN COMES TO PASS. IF IT DOES COME TO PASS, YOU CAN BE ASSURED THAT I HAVE NOT TAKEN A POSITION ON THE CONSTITUTIONAL ISSUE THAT YOU’RE RAISING ON THAT SPECIFIC QUESTION. AT LEAST AS I UNDERSTAND THE QUESTION. AND THAT’S TOTALLY DIFFERENT FROM THE MORRISON ISSUE AS I UNDERSTAND IT.>>WELL, AND I’LL TELL YOU AGAIN. THE REASON THIS HAS BEEN GRAVELY CONCERNING TO ME WHY I RAISED IT IN OUR MEETING 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 DECISION AS DEALING WITH SOME NOW LONG PAST STATUTE AND SOME REALLY SORT OF OBSCURE AND NOW NOT PARTICULARLY RELISH U. I THINK THE REASON YOU REACHED OUT AND VOLUNTEERED THAT YOU WOULD LOVE TO OVERTURN MORRISON V. OLSON ISN’T BECAUSE SCALIA WROTE A POWERFUL AND MOVING DISSENT. IT’S BECAUSE OF A VIEW OF THE EXECUTIVE BRANCH HAVING ALL THE POWER OF THE EXECUTIVE BRANCH IN THE PRESIDENT’S HANDS THAT YOU ARTICULATE ADD CROSS SPEECHES, INTERVIEWS, WRITINGS AND AN OPINION, AN OPINION THIS YEAR. I THINK THAT’S REALLY YOUR VIEW OF THE EXECUTIVE BRANCH.>>BUT I’VE NOT SAID — I NEVER SAID THAT. I NEVER SAID THAT, NUMBER ONE. SO THERE ARE TWO ISSUES HERE. I WANT TO BE VERY, VERY CLEAR ON THEM SO PEOPLE UNDERSTAND THAT TOO.>>THIS IS HOW I READ YOUR DISSENT THIS YEAR IS ARGUING ADVANCING A UNITARY EXECUTIVE THEORY.>>AND I REFER TO IT A SINGLE PRESIDENT. BUT SAME CONCEPT.>>SINGLE PRESIDENT MEANS THE PRESIDENT IS THE CHIEF LAW ENFORCEMENT OFFICER OF THE UNITED STATES AND SHOULD HAVE ALL THE POWER OF THE EXECUTIVE BRANCH INCLUDING THE ABILITY TO FIRE AT WILL WHICH IS REALLY WHAT IS AT ISSUE IN ALL THE ARTICLES AND CASES. THE ABILITY TO FIRE AT WILL, A SPECIAL PROSECUTOR, CORRECT?>>SO THE — I HAVE TAKEN AS A GIVEN IN ALL THESE CASES — >>THAT’S A YES OR NO.>>I WANT TO BE REAL CLEAR AND I’M GOING TO REPEAT MYSELF FOR THE TENTH TIME. I REPEATEDLY SAID THAT HUMPHRIES EXECUTOR IS THE PRECEDENT THAT ALLOWS INDEPENDENT AGENCIES AND THAT I HAVE APPLIED TIME AFTER TIME. THAT’S .1. .2 IS I SPECIFICALLY SAID WHAT I SAID ABOUT SPECIAL COUNT SYSTEMS BEING THE TRADITIONAL MECHANISM. POINT NUMBER THREE IS I NEVER TAKEN A POSITION ON A CONSTITUTIONALITY OF INDICTING OR INVESTIGATING A SITTING PRESIDENT. POINT NUMBER FOUR — >>YOU NEVER TOOK A POSITION ON INVESTIGATING A PRESIDENT. IT WHATS THIS AMERICAN SPECTATOR ARTICLE WHERE YOU SAID, AND I’M QUOTING, “IF THERE IS AN ALLEGATION OF PRESIDENTIAL WRONGDOING, A CONGRESSIONAL INQUIRY SHOULD TAKE PRECEDENCE OVER THE CRIMINAL INVESTIGATION INCLUDING AN INVESTIGATION OF ANY PRESIDENTIAL ASSOCIATE. THIS AMERICAN SPECTATOR ARTICLE WAS STRIKING TO ME THIS ONE IN WHICH YOU SAID IT WAS CONSTITUTIONALLY DUBIOUS FOR A CRIMINAL PROSECUTOR TO INVESTIGATE A PRESIDENT. YOU SUGGESTED NOT JUST THAT THE PRESIDENT SHOULD NOT BE CRIMINALLY INVESTIGATED AS DURING HIS TERM BUT THAT EVEN HIS ASSOCIATES SHOULDN’T BE HELD ACCOUNTABLE. YOU SAID YOU MAY MAKE AN EXCEPTION FOR A VIOLENT CRIME. WHAT IF A PRESIDENTIAL AIDE COMMITS AN ASSAULT, AN ACT OF DOMESTIC VIOLENCE.>>I NEVER SAID ANYTHING LIKE THAT, SENATOR, IN TERMS OF — >>I’LL LET YOU ANSWER THAT AND THEN WE’LL GO ON.>>AND I’D LIKE TO CONCLUDE IF I MIGHT.>>I’VE NOT SAID ANYTHING APPROACHING WHAT YOUR BROAD DESCRIPTION IS. THERE IS ALWAYS A QUESTION BASED ON THE JUSTICE DEPARTMENT’S OWN POSITION FOR LAST 45 YEARS, THE JUSTICE DEPARTMENT’S OWN POSITION ASSUMES THAT THE PROPER THING TO DO IS TO WAIT FOR INDICTMENT IS THAT THAT OCCURS AFTER A PRESIDENT LEAVES OFFICE WHETHER THAT’S BECAUSE THE TERM ENDS OR BECAUSE OF THE IMPEACH. PROCESS. AND THAT’S HOW THE JUSTICE DEPARTMENT, AGAIN, FOR 45 YEARS, THAT’S BEEN THE LAW. BUT IT’S NOT MY — THAT’S NOT MY LAW. THAT IS THE JUSTICE DEPARTMENT’S LAW AGAIN WITH RANDY MOSS WRITING THE MOST IMPORTANT OPINION ON. THAT. >>I RECOGNIZE I’M OUT OF TIME. I’D LIKE TO CONCLUDE IF I MIGHT BRIEFLY. I LOOK FORWARD TO CONTINUING THIS LINE OF DISCUSSION WITH YOU IN OUR NEXT ROUND, JUDGE. I DO THINK THAT THERE IS GOOD REASON FOR MEMBERS OF THIS COMMITTEE, MYSELF PRINCIPALLY, TO BE CONCERNED ABOUT A WHOLE RANGE OF THINGS THAT YOU SAID THAT, YOU HAVE WRITTEN AND THAT YOU’VE DECIDED AS A JUDGE ABOUT WHETHER OR NOT A PRESIDENT CAN BE HELD ACCOUNTABLE. I THINK THE ABILITY OF A SPECIAL COUNSEL TO CONDUCT AN INDEPENDENT INVESTIGATION OF THE PRESIDENT IS FOUNDATIONAL TO THE RULE OF LAW.>>I SAID THE SAME THING. I LOOK FORWARD TO A NEXT ROUND. FRANKLY, JUDGE, YOUR VIEWS OF EXECUTIVE POWER AS YOU DETAILED, YOUR STATEMENTS ABOUT WHAT YOU WOULD LIKE TO OVERTURN AND WHAT LIMITS YOU THINK THERE SHOULD BE REALLY LEAVE ME CONCERNED. AND IT’S BECAUSE OF OUR CURRENT CONTEXT, IT’S BECAUSE OF THE ENVIRONMENT WE’RE OPERATING IN AND I LOOK FORWARD TO ANOTHER ROUND AND TO MORE QUESTIONS.>>I WILL LOOK FORWARD TO IT TOO. BUT JUST TO REITERATE WHAT YOU SAID ABOUT SPECIAL COUNSELS IS WHAT MY ARTICLE SAID IN ’99 AND EXACTLY WHAT PHH SAID. >>THANK YOU, MR. CHAIRMAN. >>BEFORE I CALL ON SENATOR, A COUPLE THINGS. ONE IN REGARD CONTINUE TO DEPENDENT COUNSEL STATUTE AT ISSUE IN MORRISON, THAT STATUTE WAS NEVER RENEWED AND DOES NOT HAVE ANY EFFECT TODAY AND WE IN CONGRESS CHOSE NOT TO RENEW IT WAS IT WAS UNIVERSALLY CONDEMNED. I OFTEN QUOTE SENATOR DURBIN ABOUT INDEPENDENT COUNSELS, “UNCHECKED, UNRESTRANLD AND UNACCOUNTABLE AUTHORITY.” ACCORDING TO HIM, UNCHECKED POWER IS TYRANNY. WE HAD ERIC HOLDER, PRESIDENT OBAMA’S ATTORNEY GENERAL SAID THE LAW WAS TOO FLAWED TO BE RENEWED. ALSO I WANT TO INSERT IN THE RECORD 30 OP-EDS FROM ACROSS THE COUNTRY THAT SUPPORT THE CONFIRMATION OF JUDGE BRETT KAVANAUGH, THE EDITORIAL BOARD OF THE CHICAGO SUN TIMES, “THE WALL STREET JOURNAL” AMONG THOSE 30. SUPPORTING CONFIRMATION, WITHOUT OBJECTION I’LL ENTER THE IN THE RECORD ALL 30 OF THESE OP-EDS.>>MR. CHAIRMAN, WHILE WE’RE ON THAT EXACT POINT, THERE ARE FOUR COMMITTEE CONFIDENTIAL DOCUMENTS THAT I WANTED TO BE ABLE ABLE TO QUESTION OUR WITNESS ABOUT TODAY, THE NOMINEE, THE JUDGE. I’D LIKE TO SUBMIT THOSE FOR THE RECORD. THEY REVEAL HIS THINKING ON UNITARY EXECUTIVE THEORY.>>I CAN ADVOCATE THAT YOU GET THEM AND WE WILL PUT INTO IT, JUST LIKE WE SAID SENATOR LEAHY, GIVE US THE CITATIONS AND WE’LL TRY TO GET THEM. SO FAR, WE’VE BEEN VERY FORTUNATE. SENATOR SASS?>>THANK YOU, MR. CHAIRMAN. JUDGE, BY MY COUNT, YOU’RE ABOUT HALF DONE. CONGRATULATIONS. YOU’RE GOING TO BE HERE PAST MIDNIGHT I THINK. I ALSO WANT TO TALK ABOUT LIMITED GOVERNMENT IN GENERAL AND LIMITS ON EXECUTIVE POWER IN PARTICULAR. SENATOR CRUZ DID A NICE JOB COMPLIMENTING THE CAPITOL POLICE, IN A TOUGH ENVIRONMENT TO MANAGE AND I THINK WE ARE ALL GLAD THAT PEOPLE HAVE THE RIGHT TO EXPRESS THEIR FIRST AMENDMENT VIEWS AND HAVE THE RIGHT TO PROTEST. I DON’T WANT TO DRAW TOO MUCH MORE ATTENTION TO IT, THOUGH, BECAUSE I THINK IT DISRUPTS THE EVENT BUT THE FOUR THINGS THAT HAVE BEEN SAID THAT I THINK ARE RELEVANT TO THIS QUESTION, PROTESTERS THAT HAVE BEEN CARRIED OUT OR LED OUT IN THE LAST COUPLE OF HOURS, “PLEASE VOTE NO ON KAVANAUGH. PRESIDENTS SHOULDN’T HAVE THE POWER TO DO WHATEVER THEY WANT” VOTE NO ON KAVANAUGH, “HE’LL BE A TRUMP PUPPET” A SEPARATE ONE “HE WILL SUPPORT PRESIDENTIAL CRIMINALITY” AND “EXECUTIVE IMMUNITY HAS NO PLACE IN A DEMOCRACY.” I THINK THAT, I WANT TO EMPATHIZE WITH CONCERNS THAT PEOPLE HAVE ABOUT THOSE KINDS OF STATEMENTS, AND FRANKLY, 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 OUR SYSTEM, OR IF YOU BELIEVE THAT PRESIDENTS SHOULD HAVE THE POWER TO DO WHATEVER THEY WANTED, I COULDN’T VOTE FOR YOU EITHER, SO I’M HEADED TOWARD VOTING FOR YOU BECAUSE I DON’T BELIEVE ANY OF THOSE THINGS ARE TRUE BUT I THINK THE AMERICAN PEOPLE NEED TO UNDERSTAND WHY NOT. YOU CITED THE FEDERALIST PAPERS AND SAID THE PRESIDENT IS NOT A MONARCHY.>>UM-HUM.>>I THINK IT WOULD BE USEFUL, THE PRESIDENCY IS NOT A MONARCHY. I THINK IT WOULD BE USEFUL TO HAVE YOU BACK US UP AND GO AGAIN I THINK IN THE COONS ASKED LOTS OF FAIR QUESTIONS BUT AS A NON-LAWYER, MANY TIMES WE GOT LOST IN WEEDS, NOT CRITICAL OF HIS QUESTIONING, BUT I’D LIKE TO HAVE IT AT A HIGH SCHOOL SOPHOMORE LEVEL FOR A LITTLE WHILE. IF YOU WERE TO GOING TO EXPLAIN TO THE AMERICAN PEOPLE WHO THE LIMITS ON EXECUTIVE POWER ARE, WHAT ARE THEY? WHERE DO YOU START?>>I START WITH THE FACT THAT THE PRESIDENT IS ELECTED BY THE PEOPLE THROUGH THE ELECTORAL PROCESS SPECIFIED IN THE CONSTITUTION, SO NOT A HEREDITARY MONARCHY, IT WAS SOMETHING THAT WAS SPECIFIED IN FEDERALIST 69. SECONDLY, THE PRESIDENT SERVES A TERM IN OFFICE, NOT AN UNLIMITED TERM IN OFFICE, AGAIN, SPECIFIED IN FEDERALIST 69. THE PRESIDENT IS SUBJECT TO THE LAWS, NO ONE’S ABOVE THE LAW IN THE UNITED STATES, INCLUDING THE PRESIDENT OF THE UNITED STATES, AND THAT’S SOMETHING MADE CLEAR IN FEDERALIST 69. THE PRESIDENT DOES NOT, A PRESIDENT DOES NOT HAVE ABSOLUTE POWER TO MAKE THE LAWS, BECAUSE CONGRESS HAS THE POWER TO MAKE THE LAWS. THE PRESIDENT DOESN’T HAVE THE POWER TO ADJUDICATE DISPUTES, BECAUSE AN INDEPENDENT JUDICIARY HAS THE POWER TO ADJUDICATE DISPUTES IN CASES IN CONTROVERSIES ALONG WITH A JURY. AS JUSTICE JACKSON’S FRAMEWORK IN YOUNGSTOWN FAMOUSLY MADE CLEAR, IT’S IMPORTANT TO UNDERSTAND THAT, THOUGH, 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, BOTH THE CONSTITUTION AND THE LAWS PASSED BY CONGRESS, SO FOR EXAMPLE, AS I’VE SAID IN WRITINGS IN MY REVIEW OF JUDGE DAVID BEHRENS VIEW OF WAR, AND IN SOME CASES, CONGRESS HAS SUBSTANTIAL POWER, AND THIS IS OFTEN FORGOTTEN, SUBSTANTIAL POWER IN THE WAR POWERS ARENA, TO DECLARE WAR, AUTHORIZE WAR AND ALSO TO REGULATE THE WAR EFFORT AND CONGRESS HAS DONE SO HISTORICALLY AND CURRENTLY INCLUDING POST-SEPTEMBER 11th ON ISSUES SUCH AS INTERROGATION, DETENTION, MILITARY COMMISSIONS, SURVEILLANCE. CONGRESS HAS BEEN ACTIVELY INVOLVED IN THOSE AREAS HISTORICALLY AND THROUGH POST SEPTEMBER 11th AND I’VE MADE CLEAR IN MY WRITINGS THAT THE PRESIDENT HAS VERY LIMITED POWER IN YOUNGSTOWN CATEGORY THREE TO DISREGARD SUCH A LAW, AND/OR PRACTICE. THE HISTORICAL EXAMPLE THAT IS ACCEPTED BY THE SUPREME COURT IS COMMAND OF TROOPS IN BATTLE, FOR EXAMPLE, THAT CONGRESS COULDN’T GET IN THE MIDDLE OF THAT, BUT OUTSIDE EXAMPLES LIKE THAT, NARROW EXAMPLES LIKE THAT, CONGRESS REGULATES THE, CAN REGULATE THE WAR EFFORT. NOW, CONGRESS OFTEN CHOOSES TO GIVE THE EXECUTIVE BRANCH BROAD DISCRETION ON NATIONAL SECURITY POLICY, BUT SOMETIMES NOT BECAUSE THE CONGRESS DOESN’T LIKE WHAT THE EXECUTIVE HAS DONE, USUALLY ARE REACTIVE AND THAT’S UNDERSTANDABLE, SOMETHING HAPPENS THAT SEEMS BAD, CONGRESS WILL COME IN AND SAY WE DON’T WANT THAT TO HAPPEN AGAIN IN WAR TIME OR OTHERWISE IN THE NATIONAL SECURITY CONTEXT, AND JUSTICE JACKSON SET FORTH THAT FRAMEWORK, WHICH STOOD THE TEST OF TIME AND BEEN APPLIED BY THE SUPREME COURT, AND THAT’S A VERY CRITICAL PART BECAUSE WHERE ELSE WOULD WE EXPECT THE EXECUTIVE TO EXERCISE UNILATERAL POWER BUT IN THE NATIONAL SECURITY CONTEXT, BUT ALSO AT THE SAME TIME WHAT ELSE IS A GREATER TIME OF THREAT TO LIBERTIES THAN THE NATIONAL SECURITY CONTEXT, YOUNGSTOWN STEELE BEING THE CLASSIC EXAMPLE WHERE THE PRESIDENT SAID WE’RE TRYING TO WIN THE WAR SO I CAN SEIZE STEEL MILLS AND THAT DIDN’T WORK BY A 6-3 VOTE OF THE SUPREME COURT, GIVEN THE STATUTES CONGRESS HAS PASSED. SO TOO NO PRESIDENT IS ABOVE THE LAW IN THE CLINTON VERSUS JONES CASE, CIVIL PROCESS, THAT’S A SUPPRESSION OF SUPREME COURT ON CIVIL SUITS WHILE IN OFFICE, SO, TOO, THE CRIMINAL PROCESS, HAMILTON SPECIFIES THIS IN FEDERALIST 69, A PRESIDENT IS NOT ABOVE THE LAW WITH RESPECT TO THE CRIMINAL PROCESS. THE ONLY QUESTION THAT THE JUSTICE DEPARTMENT SAYING SENATOR COONS APPLIED FOR 45 YEARS IS THE TIMING OF THE INDICTABILITY QUESTION AND THE JUSTICE DEPARTMENT THROUGH DEMOCRATIC AND REPUBLICAN ADMINISTRATIONS FOR 45 YEARS HAS SAID THAT SHOULD OCCUR WHEN THE PRESIDENT LEAVES OFFICE, EITHER BECAUSE OF THE TERM EXPIRED OR BECAUSE OF THE IMPEACHMENT PROCESS.>>I CAN INTERRUPT AND UNPACK THERE AND COME BACK AND YOU HAVE FINISH, BECAUSE I THINK YOU’RE BUILDING A LIST THAT HAS DURATION IN TIME OF THE OFFICE OF THE PRESIDENCY, AUTHORITIES THAT THE LEGISLATURE MAY OR MAY NOT HAVE GIVEN TO THE EXECUTIVE BRANCH, POWERS OF THE PURSE TO FUND THINGS THAT MAY HAVE AUTHORITIES, BUT MAY NOT HAVE CURRENT DOLLARS AVAILABLE TO THEM. I THINK A LOT OF YOUR DEBATE WITH SENATOR COONS IS AN IMPORTANT DEBATE, IS ABOUT PERSONNEL MATTERS BUT FOR JUST A SECOND LET’S PLAY OUT THIS QUESTION OF CRIMINALITY VERSUS CIVIL CHARGES AGAINST A PRESIDENT. AND I ADMIT THAT I’M SORT OF AS THE NON-LAWYER, I FOLLOW IN THE MIDWESTERN TRADITION OF THE CHAIRMAN OF BEING A NON-LAWYER ON THE COMMITTEE. I KNOW A WHOLE LOT OF BIG LEGAL BRAINS TOLD ME IF I ASK ANY HYPOTHETICAL YOU’LL RUN CIRCLES AROUND ME TELLING ME WHY YOU CAN’T ANSWER. I WANT TO TRY THE START OF A HYPOTHETICAL. IMAGINE TEN YEARS IN THE FUTURE, THERE’S A PRESIDENT FROM THE PURPLE PARTY, SO IT’S NONE OF THE CURRENT PARTICIPANTS IN PUBLIC LIFE AND NONE OF THESE PARTIES, AND THIS PRESIDENT RAN FOR OFFICE WITH AN INSTINCT TO DEMONSTRATE SELF-RELIANCE AND HE/SHE DECIDES THAT THEY WON’T BE ANY PART OF MOTORCADES, THEY’LL DRIVE THEMSELVES AND THEY’RE DRUNK ONE NIGHT AND THERE’S A MOTOR VEHICLE HOMICIDE COMMITTED BY THE PRESIDENT. THAT’S BOTH A CRIMINAL AND A CIVIL MATTER. IS THE PRESIDENT IMMUNE FROM EITHER BEING SUED OR BEING CHARGED WITH A CRIME BECAUSE THEY’RE PRESIDENT?>>NO, NO ONE HAS EVER SAID, I DON’T THINK, THAT THE PRESIDENT IS IMMUNE FROM CIVIL OR CRIMINAL PROCESS. IMMUNITY IS THE WRONG TERM TO EVEN THINK ABOUT IN THIS PROCESS. THE OHM QUESTION THAT’S EVER BEEN DEBATED IS WHETHER THE ACTUAL PROCESS SHOULD OCCUR WHILE STILL IN OFFICE, THAT’S THE JONES V. CLINTON CASE, WHERE STRONG ARGUMENTS WERE PRESENTED BY BOTH SIDES AND THE SUPREME COURT ULTIMATELY DECIDED THE CIVIL PROCESS COULD GO FORWARD AGAINST PRESIDENT CLINTON. PRESIDENT CLINTON WAS ARGUING THE CIVIL PROCESS SHOULD BE DEFERRED UNTIL AFTER HE LEFT OFFICE. THE SUPREME COURT REJECTED THAT. SO, TOO, THE ONLY QUESTION WITH THE CRIMINAL PROCESS IS NOT IMMUNITY, THAT’S THE WRONG TERM. IT’S DEFERRED TIMING, AND THE JUSTICE, AS I SAID, THE JUSTICE DEPARTMENT FOR 45 YEARS HAS TAKEN THE POSITION THAT THE TIMING OF THE CRIMINAL PROCESS, A CRIMINAL PROCESS SHOULD BE AFTER THE PRESIDENT LEAVES OFFICE. NOW, THAT DOESN’T PREVENT INVESTIGATIONS, GATHERING OF EVIDENCE, QUESTIONING OF WITNESSES, I WOULDN’T THINK NECESSARILY. I DON’T WANT TO OPINE TOO MUCH BUT THAT’S CERTAINLY HOW IT’S PROCEEDED UNDER THE SPECIAL COUNSEL SYSTEM THAT WE’VE HAD TRADITIONALLY THAT COEXISTED WITH THE JUSTICE DEPARTMENT POSITION ON THE ULTIMATE TIMING QUESTION, SO THOSE ARE JUST TIMING QUESTIONS FROM JONES V. CLINTON AND FROM THE JUSTICE DEPARTMENT POSITION BUT IMMUNITY IS NOT THE CORRECT WORD AND I DON’T THINK ANYONE THINKS OF IMMUNITY AND WHY NOT, NO ONE’S ABOVE THE LAW. THAT’S JUST SUCH A FOUNDATIONAL PRINCIPLE OF THE CONSTITUTION, AND EQUAL JUSTICE UNDER LAW AND THAT’S WHAT HAMILTON WAS CONCERNED ABOUT IN FEDERALIST 69 AND WHAT THE FRAMERS WERE CONCERNED ABOUT. EVEN WITH HAVING, IF YOU READ THE CONSTITUTIONAL CONVENTION DEBATES, EVEN WITH HAVING A SINGLE PRESIDENT, THEY WERE CONCERNED, THAT MAY SEEM LIKE A MONARCHY, AND THAT’S WHY HAMILTON FELT THE NEED TO CONVINCE THE PEOPLE, NO, THIS IS NOT A MONARCHY AND HOW DID HAMILTON GO ABOUT CONVINCING THE PEOPLE THAT HE WROTE ALL THE WAYS IT WAS DISTINCT IN FEDERALIST 69, SOME OF WHICH I HAVE OUTLINED TO YOU, APPROPRIATIONS IS ANOTHER IMPORTANT ONE TO — SENATOR BIRD REMINDED ME WHEN I MET WITH HIM IN MY 2006 PROCESS HE PULLED OUT HIS POCKET CONSTITUTION AND EVERYONE REMEMBERS HIM KNOWS WAS FOCUSED ON THE APPROPRIATIONS CLAUSE OF THE CONSTITUTION, THE FACT THAT — >>ANYONE DRIVES THROUGH WEST VIRGINIA WILL SHOW YOU.>>EXACTLY.>>I WANT TO YOU FINISH THAT LIST AND THEN I WANT TO ASK SOME PERSONNEL SPECIFIC QUESTIONS. I THINK YOU HAVE DURATION OF THE PRESIDENT’S TERM IN OFFICE, SPECIFIC AUTHORITIES THAT THE PRESIDENT MAY OR MAY NOT HAVE BEEN GIVEN, APPROPRIATIONS, PERSONNEL QUESTIONS. ARE THERE ANY OTHER CATEGORIES, VERTICAL AND HORIZONTAL FEDERALISM, SO THERE ISN’T JUST EXECUTIVE LEGISLATIVE DISTINCTION HERE, IN MY HYPOTHETICAL, THE DRUNK DRIVING ACCIDENT COULD HAVE HAPPENED IN VIRGINIA OR MARYLAND INSTEAD OF D.C. SO WE’D HAVE TO HAVE DEBATES WHICH LEVEL OF GOVERNMENT WOULD BE INVOLVED. ARE THERE ANY OTHER CATEGORIES OF LIMITATION?>>I THINK A HUGE ONE, REALLY THE HUGEST QUESTION AS I’VE SAID MANY TIMES IN MY WRITINGS IN THE ENTIRETY OF CONSTITUTIONAL LAW IS THE PRESIDENT’S ABILITY UNILATERALLY TO TAKE THE COUNTRY INTO WAR. THAT REALLY IS, DWARFS ALL OTHER QUESTIONS IN MANY WAYS, AND HAMILTON MADE CLEAR IN FEDERALIST 69 THE ANSWER TO THAT QUESTION WAS NO. NOW, IT’S SOMETIMES THOUGHT AND OPINED BY COMMENTATORS OR EVEN SCHOLARS THAT OH, ACTUALLY THAT’S CHANGED OVER TIME, AND ACTUALLY PRESIDENTS HAVE UNI — THAT REALLY HAS NOT CHANGED IN PRACTICE AT LEAST OVER TIME. THERE IS NO SUPREME COURT CASE. YOU LOOK AT THE SIGNIFICANT WARS AND I WROTE THIS IN THE BOOK REVIEW OF THE BEHREN BOOK WHICH I RECOMMEND TO YOU, I THINK YOU’D ENJOY THAT.>>THANKS FOR CALLING ME A NERD ON NATIONAL TV.>>I KNOW YOU WOULD ENJOY IT, REALLY, IS THE ACTION ALL THE SIGNIFICANT WARS IN U.S. HISTORY HAVE BEEN CONGRESSIONALLY AUTHORIZED WITH ONE MAJOR EXCEPTION IN THE KOREAN WAR AND THE KOREAN WAR IS AN ANOMALY IN MANY RESPECTS AND SOME OF THE FACT IT WAS UNDECLARED, UNAUTHORIZED DID LEAD TO THE YOUNGSTOWN DECISION, BUT VIETNAM, THE PERSIAN GULF WAR, THE AUMF AGAINST AL QAEDA, THE 2003 IRAQ WAR, GOING BACK WORLD WAR II, WORLD WAR I, THE WAR OF 1812, THEY’RE ALL CONGRESSIONALLY AUTHORIZED. YOU CAN GO BACK THROUGHOUT AND I SPECIFY THAT, AND SO THE WAR POWER, THE POWER TO TAKE THE NATION INTO WAR AT LEAST A SIGNIFICANT ONE, AND THERE’S SOME QUESTIONS ABOUT SHORT TERM AIR STRIKES AND THINGS LIKE THAT, BUT A SIGNIFICANT WAR, THAT IS THE BIGGEST OF ALL, AND THAT’S SOMETHING THAT HAMILTON TALKED ABOUT IN ’69 AND THAT OUR HISTORICAL PRACTICE I THINK IS ACTUALLY LIVED UP TO. I DON’T MEAN TO FOOTNOTE KOREA. THAT’S AN ENORMOUS EXCEPTION, BUT SINCE THEN, THEY’VE ALL BEEN CONGRESSIONALLY AUTHORIZED. PEOPLE DEBATE THE GULF OF TONKA RESOLUTION BUT THE WORDS ARE QUITE BROAD.>>THIS ISN’T THE PLACE FOR THIS FULL DETOUR BUT I WANT TO UNDERSCORE ONE THING YOU SAID ABOUT HAMILTON IN THE FEDERALIST PAPERS MORE BROADLY HOW MANY TIMES WE SEE OUR FOUNDERS WRITING ABOUT THE NORMS OF OUR CIVICS AND ONE OF THE THINGS THAT GOES WRONG IN THESE KIND OF PROCEEDINGS IS WE SO REGULARLY CONFLATE POLICY AND POLITICS WITH CIVICS AND I THINK THAT OUR JURISPRUDENCE SHOULD FIT INSIDE OUR CIVICS, NOT UNSIDE OUR POLITICS BECAUSE IT’S THE OVERARCHING THING. KEN BYRNES SAYS E. PLURUBIS UNUM IS A MODEL IN AMERICA. WE SHOULD HAVE MORE UNITY WHAT WE THINK THE ROLE OF A JUDGE IS AND SENATOR CRUZ DID A NICE JOB UNPACKING HOW YOU AND JUDGE GARLAND HAVE BEEN ON THE SAME SIDE OF THE ISSUES 93% AND 6% OF THE TIME. YOUR COMMENTS YESTERDAY OF BEING ON THE TEAM OF NINE, THAT THERE NEEDS TO BE NO CENTER AISLE THERE BEING NO CAUCUS ROOMS IN THE SUPREME COURT, THAT IS ANOTHER WAY OF SAYING IF WE’RE DOING CIVICS RIGHT IN AMERICA, WE SHOULD BE SEEING FEWER AND FEWER POLITICAL DISPUTES TRYING TO BE SETTLED AT THE COURT AND WE NEED TO ASEND IT MORE TO THE NORMS. WHEN THINGS ARE GOING WRONG IN AMERICA AND WE SHOULD ADMIT THINGS ARE A MESS IN THIS COUNTRY. WE’VE HAD, IN THE GOVERNANCE OF OUR COUNTRY. THERE’S A LOT THAT’S GREAT IN AMERICA RIGHT NOW BUT IN THE IDEA IN OUR PUBLIC SQUARE WE AGREE ON VERY MUCH I THINK WE KNOW THAT’S NOT TRUE AND IF YOU LOOK AT SURVEY DATA OF WHAT HIGH SCHOOL STUDENTS TURN UP IF THEY TRY TO TAKE THE IMMIGRATION AND NATURALIZATION TEST AND HUGE SHARES OF HIGH SCHOOL JUNIORS DON’T KNOW THAT WE HAVE THREE BRANCHES OF GOVERNMENT, SHAME ON US, NOT SHAME ON THEM, THAT THEY DON’T UNDERSTAND THAT. WE’RE NOT DOING THAT BASIC CIVICS. WASHINGTON THOUGHT IT WAS ESSENTIAL EXPLAINING WHAT HIS JOB WAS AT PRESIDENT AND IT NOT BE CONFUSED WITH A MONARCHY HE WANTED TO BE CAUSED MR. WASHINGTON, NOT HONORIFICS, HE REBUKED PEOPLE FOR BOWING BEFORE HIM BECAUSE WE MIGHT CONFUSE OUR KIDS AND GRANDKIDS THAT IT IS A MONARCHY. ONE OF THE PROBLEMS WITH NOT UNDERSTANDING EXECUTIVE POWER, WE’RE NOT DOING A VERY GOOD JOB OF TALKING TOGETHER IN COMMON ABOUT ALL THE WAYS ALL THREE BRANCHES OF GOVERNMENT SHOULD BE LIMITED. BUT LET’S GO BACK TO SENATOR COONS’ POINT ABOUT PERSONNEL. I SIT ON THE ARMED SERVICES COMMITTEE AS WELL AND ONE OF THE THINGS THAT WE DO THERE, I DON’T KNOW, EVERY SECOND WEEK MAYBE, IS THAT WE HAVE CONFIRMATION VOTES OF DOZENS, SCORES, SOMETIMES HUNDREDS OF PROMOTIONS AND FLAG OFFICERS, AND WHY DO WE DO IS THAT? IT’S BECAUSE THERE ARE ALL SORTS OF CONSTRAINTS ON EXECUTIVE POWER AT THE LEVEL OF PERSONNEL AND WHEN SOMEBODY IS GETTING PROMOTED IN THE NAVY OR AT THE AIR FORCE, THE CONGRESS ACTUALLY HAS OVERSIGHT OF THAT AND BECAUSE THAT PROCESS WORKS SO WELL, BECAUSE THERE IS SO MUCH COLLEGIALITY BETWEEN THE LEGISLATURE AND THE EXECUTIVE BRANCH, IT TENDS TO NOT TURN UP ON TV, OFTEN A PRO FORMA MOMENT AT THE START OF OUR HEARINGS EVEN THOUGH ANY SENATOR REPUBLICAN OR DEMOCRAT THAT WANTS TO DELAY THE PROMOTION OF THOSE OFFICERS WE CAN DO THAT, BECAUSE ALMOST ALL THAT STUFF IS MOVING BY CONSENT. SO THERE ARE THINGS WHERE THERE’S UNITY IN HIRING OR IN PROMOTION. IT’S JUST A LOT OF THAT IS NON-CONTROVERSIAL SO IT DOESN’T END UP SALACIOUS ON TV. JUMP IN, PLEASE. I KNOW YOU’RE TRYING TO SAY SOMETHING.>>I THINK THAT’S AN IMPORTANT ADDITION, IS THAT THE PRESIDENT, AND THIS GOES TO SENATOR COONS AS WELL, DOES NOT HAVE THE UNILATERAL POWER TO, UNDER THE CONSTITUTION, TO APPOINT EVEN MEMBERS OF THE CABINET, WHICH IF YOU ARE THINKING OF A MONARCHY, OF COURSE YOU’D BE ABLE TO DISPENSE OFFICES AND YOU CAN’T CREATE OFFICES FIRST OF ALL, AND CAN’T UNILATERALLY FILL EVEN SECRETARY OF DEFENSE OR SECRETARY OF STATE BECAUSE THE FRAMERS WERE SO CONCERNED ABOUT OVERBROAD EXECUTIVE POWER THAT THEY REQUIRED SENATE CONFIRMATION FOR EVEN THOSE POSITIONS WHO, IF CONFIRMED, THEN BECOME EXECUTIVE OFFICERS. THAT’S ANOTHER REALLY HUGELY IMPORTANT CHECK ON THE EXECUTIVE BRANCH, WHICH IS A REALITY AND OF COURSE THE CONFIRMATION PROCESS FOR EXECUTIVE OFFICERS, AS YOU SAY, BECOMES PART AND PARCEL OF THE OVERSIGHT IN MANY WAYS, AND I THINK THAT’S VERY IMPORTANT, AND I THINK WE’VE SPENT, I SPENT A LITTLE TOO LITTLE TIME, I MENTIONED IT ON APPROPRIATIONS, BUT THAT’S THE LIFEBLOOD OF THE GOVERNMENT, OF COURSE, IS THE MONEY THAT CAUSES THE GOVERNMENT TO, ALLOWS THE GOVERNMENT TO BE ABLE TO OPERATE IN TERMS OF WITHOUT MONEY, YOU CAN’T DO THINGS, AND THE PRESIDENT DOES NOT, A PRESIDENT DOES NOT HAVE THE UNILATERAL POWER TO APPROPRIATE MONEY, AND SO CONGRESS ULTIMATELY THROUGH THAT APPROPRIATIONS POWER AND YOU ALL KNOW THIS BETTER THAN ANYONE, CAN RESTRICT ACTIVITIES OF THE EXECUTIVE BRANCH IN MULTIPLE WAYS AND I THINK THAT’S AN IMPORTANT THING THAT HAMILTON ALSO TALKED ABOUT. SO CONGRESS IS SUBSTANTIAL. THE PRESIDENT HAS LARGE POWERS OF COURSE UNDER THE CONSTITUTION BUT WHAT WE SOMETIMES FORGET AND I THINK YOUR CIVIC LESSON IS A REMINDER THAT ALL THESE CHECKS AND BALANCES WORK TOGETHER, INCLUDING ON JUDGES, IN A WAY THAT HAS SERVED THE TEST OF TIME, BUT COULD ALWAYS BE IMPROVED IN SOME RESPECTS, I SUPPOSE.>>AND ONE OF THE REASONS THAT THE EXECUTIVE BRANCH SEEMS TO POWERFUL RIGHT NOW IS, AGAIN, BECAUSE OF HOW WEAK THE LEGISLATURE IS. I MEAN, IT’S A FUNDAMENTAL PART OF WHY WE HAVE THE TERM “PRESIDENT.” IN THE 1780s THIS WASN’T A COMMON TERM IN THE ENGLISH LANGUAGE. PRESIDENT WAS A NOUNIFIED FORM OF THE NAME PRESIDING OFFICER AND WE MADE IT UP, OUR FOUNDERS MADE IT UP SO THAT WE WOULDN’T HAVE A TERM THAT SOUNDED A LOT LIKE A KING. AND SO WE WANTED TO BE SURE THAT THE TERM PRESIDING OFFICER SOUNDED PRETTY BORING AND ADMINISTRATIVE, BECAUSE THE LEGISLATIVE, THE POLICY-MAKING POWERS WERE SUPPOSED TO SIT IN THIS BODY AND THE ARTICLE II BRANCH IS SUPPOSED TO PRESIDE OVER AND EXECUTE THE LAWS THAT HAVE BEEN PASSED. IT’S NOT SUPPOSED TO BE THE LOCUS OF ALL POLICY MAKING IN AMERICA BUT ONE OF THE REASONS WE HAVE SOME OF THESE PROBLEMS WITH SO MANY OF THESE EXECUTIVE AGENCIES IS BECAUSE CONGRESS REGULARLY DOESN’T FINISH ITS WORK, PUNTS THE POWERS TO ARTICLE II AND IT’S NOT CLEAR WHO CAN EXECUTE ALL THOSE AUTHORITIES SO WE END UP WITH THIS DEBATE ABOUT THE UNITARY EXECUTIVE. YOU HAD A DIFFERENT TERM FOR IT BUT UNPACK FOR US A LITTLE BIT WHY YOU HAVE A DIFFERENT VIEW ABOUT BOTH THE PRUDENCE AND THE CONSTITUTIONALITY OF ONE PERSON HEADED INDEPENDENT EXECUTIVE AGENCIES OR PSEUDO-INDEPENDENT AGENCIES VERSUS COMMISSION-STRUCTURED HEADED INDEPENDENT AGENCIES.>>THE TRADITIONAL INDEPENDENT AGENCIES THAT WERE UPHELD BY THE SUPREME COURT IN HUM FREE SOS EXECUTOR IN 1935 ARE A MULTIMEMBER INDEPENDENT AGENCIES AND SO USUALLY SOMETIMES THREE, FIVE, OCCASIONALLY MORE, BUT THEY ARE MULTIMEMBER INDEPENDENT AGENCIES, AND THAT’S BEEN ALL THE WAY THROUGH, AND THEN FOR THE SIGNIFICANT INDEPENDENT AGENCIES. THE CFPV AND IT’S NOT MY ROLE TO QUESTION THE POLICY OR TO QUESTION THE CREATION OF THE NEW AGENCY, IN FACT, I THINK IT WAS DESIGNED TO FOR EFFICIENCY AND CENTRALIZATION OF CERTAIN OVERLAPPING AUTHORITIES. IT’S NOT MY ROLE TO QUESTION THAT POLICY. SOMEONE CHALLENGED THE FACT THAT IT WAS HEADED BY A SINGLE PERSON, AND A COUPLE THINGS THEN I WROTE ABOUT IN MY DISSENT IN THAT CASE. I’LL REPEAT WHAT I WROTE. I SAID THAT’S A DEPARTURE FROM HISTORICAL PRACTICE OF INDEPENDENT AGENCIES AND THAT MATTERS ACCORDING TO THE SUPREME COURT, THEY HAD A PREVIOUS CASE INVOLVING THE PCAOB, WHERE THEY HAD DIFFERENT INNOVATION THERE, SUPREME COURT STRUCK DOWN IN PART BECAUSE OF THE NOVELTY OF IT. SO DEPARTURE FROM HISTORICAL PRACTICE MATTERS BECAUSE PRECEDENT ALWAYS MATTERS INCLUDING EXECUTIVE PRECEDENT. THEN THE DIMINUTION OF PRESIDENTIAL AUTHORITY BEYOND THE TRADITIONAL AGENCIES IN 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 OF THE INDEPENDENT AGENCIES, SO WHEN PRESIDENT OBAMA CAME IN, WAS ABLE TO DESIGNATE NEW CHAIRS OF THE VARIOUS INDEPENDENT AGENCIES AND THE CHAIRS OF COURSE SET THE POLICY DIRECTION AND CONTROL THE AGENDA. THAT’S HISTORICALLY BEEN THE WAY. THAT DOES NOT HAPPEN WITH THE CFPB AND FINALLY HAVING A SINGLE PERSON, JUST GOING BACK TO LIBERTY, WHO IS IN CHARGE, WHO IS NOT REMOVABLE AT WILL BY ANYONE, NOT ACCOUNTABLE TO CONGRESS IN CHARGE OF A HUGE AGENCY IS SOMETHING THAT’S DIFFERENT AND HAS AN EFFECT ON INDIVIDUAL LIBERIES SO A SINGLE PERSON CAN MAKE THESE ENORMOUS DECISIONS RULE-MAKINGS, ADJUDICATIONS AND ENFORCEMENT DECISIONS ALL OF THEM AND FROM MY PERSPECTIVE, I’M NOT INTENDING TO GO BEYOND WHAT I WROTE IN THAT OPINION, THAT WAS AN ISSUE OF CONCERN, AND I DID PUT IN A HYPOTHETICAL. IT SEEMS ABSTRACT THAT I THINK WE’LL REALIZE THIS ISSUE WITH THAT AGENCY OR ANY OTHER, WHEN A PRESIDENT COMES IN TO OFFICE AND HAS TO LIVE FOR THREE, FOUR YEARS WITH A CFPB DIRECTOR APPOINTED BY THE PRIOR PRESIDENT, AND I THINK EVERYONE WILL REALIZE OF A DIFFERENT PARTY IN PARTICULAR, AND THEN I THINK EVERYONE’S GOING TO REALIZE WOW, THAT’S AN ODD STRUCTURE. MAYBE NOT BUT THAT’S WHAT I WROTE IN MY OPINION, THAT WOULD SEEM VERY WEIRD. THAT’S NOT WHAT HAPPENS WITH ALL THE TRADITIONAL INDEPENDENT AGENCIES, SO WHEN PRESIDENT, WHENEVER ANY PRESIDENT LEAVES AND IS APPOINTED, THE NEW PRESIDENT MIGHT CAMPAIGN ON CONSUME PROCEDURE TEX. IMAGINE PRESIDENTIAL CAMPAIGN CAMPAIGNS ON CONSUMER PROTECTION AND CONSUMER ISSUES AND COMES INTO OFFICE AND CAN’T ACTUALLY APPOINT A NEW CFPB DIRECTOR FOR THE WHOLE TERM OF HIS OR HER OFFICE. THAT’S GOING TO SEEM QUITE ODD STRUCTURALLY, AT LEAST THAT’S WHAT I SAID IN MY OPINION NOT INTENDING TO GO BEYOND WHAT I SAID IN MY OPINION.>>IF YOU HAVE A SINGLE-HEADED AGENCY AND THE PRESIDENT DOESN’T HAVE THE AUTHORITY TO HIRE OR FIRE THE PERSON THE POLICY-MAKING, EXECUTIVE AND JUDICIAL FUNCTIONS FUNCTIONALLY BECOMES A FOURTH BRANCH OF GOVERNMENT, BECAUSE WHO ARE THEY ACCOUNTABLE TO, IS THAT A FAIR SUMMARY OF THE CONCERN?>>ABSOLUTELY, THAT’S A FAIR SUMMARY. BRANCH UNTO ITSELF.>>I WANT TO ASK UNANIMOUS CONSENT TO ENTER INTO THE RECORD, MR. CHAIRMAN, I’VE GOT A LETTER FROM SEVERAL DOZEN LEGAL SCHOLARS, PROFESSORS THAT TEACH AT HARVARD, STANFORD, YALE, DUKE, NORTHWESTERN AND OTHER SCHOOLS, DIVERSE GROUP OF FOLKS, VERY, VERY POLITICS AND LEGAL SCHOLARSHIP, BUT A FEW OF THEIR QUOTES I WANT TO INCLUDE HERE, ARE THAT THEY ALL “AGREE THAT JUDGE BRETT KAVANAUGH DISPLAYS ACADEMIC VIRTUES AND BRING TO THE COURT AN EXCEPTIONAL RECORD OF TINKS IN JUDICIAL SERVICE AND HIS LONG RECORD OF TEACHING AND MENTORING IS TO BE APPLAUDED AND HE WOULD CONTINUE TO BUILD PRODUCTIVE BRIDGES BETWEEN THE BENCH, LEGAL PRACTITIONERS AND THE ACADEMY.” MR. CHAIRMAN, CAN I ASK NONE MUSS CONSENT TO INCLUDE IT? THANK YOU. I HAVE A SERIES OF QUESTIONS ABOUT THE PRESIDENT AND FIRST AMENDMENT ABOUT YOU I’LL BE OUT OF TIME SO I’LL DO SMALLER BALL STUFF AND SAVE FOR THE FIRST ROUND. BACK TO THE KAGAN QUOTE ON SCALIA. WHAT IS A FAIR WAY TO CHARACTERIZE THE POSITION THAT FOLKS WOULD HAVE HELD BEFORE JUSTICE KAGAN SAID WE’VE ALL BEEN CONTEXTUALISTS NOW. WHEN THERE WERE NONTEXTUALISTS, WHO WOULD IT BE? WHAT IS THE FAIREST WAY?>>I THINK ONE WAY TO DESCRIBE IT IS THAT JUDGES WOULD TRY TO FIGURE OUT WHAT THE GENERAL POLICY WAS REFLECTED IN THE STATUTE, AND THEN FEEL FREE TO SHAPE THE PARTICULAR TEXTURAL PROVISION IN THE WAY THE TEXT ITSELF WOULD BEAR TO SERVE THAT BROAD POLICY END, AND SO THAT’S ONE WAY TO THINK ABOUT IT. ANOTHER WAY, JUDGES WOULD SOMETIMES USE A SNIPPET OF A COMMITTEE REPORT, OR A FLOOR STATEMENT AND SAY THAT’S REALLY WHAT CONGRESS WAS GETTING AT IN TERMS OF THE STATUTE, AND THEREFORE, WE’RE GOING TO FOLLOW THAT COMMITTEE REPORT OR FLOOR STATEMENT RATHER THAN FOLLOWING THE TEXT OF THE STATUTE, SO THAT’S ANOTHER WAY I THINK IN WHICH JUDGES WOULD DEPART FROM THE TEXT OF THE STATUTE, AND THAT MODE OF STATUTORY INTERPRETATION I THINK JUSTICE SCALIA HAD A PROFOUND EFFECT ON THE SUPREME COURT ITSELF AND THE LOWER COURTS IN PARTICULAR AND ONE OF THE THINGS JUSTICE KAGAN SAID IN THAT SPEECH WAS HE PROBABLY DIDN’T GET 100% OF WHAT HE WANTED IN TERMS OF MOVING THE STATUTORY INTERPRETATION, BUT HE GOT PRETTY DARNED CLOSE IN TERMS OF MOVING THE BALL IN HIS DIRECTION AND EVERYONE PAYS ATTENTION TO THE TEXT. IF YOU SAT IN MY COURT FOR A WEEK AND LISTENED TO ARGUMENT AFTER ARGUE THE, WHICH I DO NOT RECOMMEND, BUT IF YOU DID THAT, YOU WOULD HEAR JUDGE AFTER JUDGE SAYING WHAT ABOUT THE TEXT OF THE STATUTE? WHAT ABOUT CLAUSE TWO OF THE STATUTE? EVERY JUDGE IS FOCUSED ON THE TEXT OF THE STATUTE, AGAIN, BECAUSE THAT’S WHAT YOU’VE PASSED AND THAT’S WHAT MATTERS UNDER THE CONSTITUTION AND BECAUSE WE KNOW THE COMPROMISES THAT ARE INHERENT IN ANY LEGISLATIVE PRODUCT AND WE HAVE TO RESPECT THAT COMPROMISE.>>SO ONE OF THE THINGS THAT CONCERNS ME ABOUT THE WAY WREF’ TALKED ABOUT YOUR NOMINATION AND A LOT OF MEDIA REPORTS ABOUT IT THAT IT’S BEEN SAID THAT YOU HAVE BEEN NOMINATED TO THE SO-CALLED SWING SEAT ON THE COURT. I THINK TWO WAYS THAT WE CAN GO WRONG. ONE OF THEM ARE THINKING ABOUT JUDGES AS REPUBLICAN VERSUS DEMOCRAT, AND YOU ARE SUPPOSEDLY, BECAUSE YOU’VE BEEN, YOU’VE WORKED IN REPUBLICAN WHITE HOUSES, WORKED IN THE GEORGE W. BUSH WHITE HOUSE AND BECAUSE YOU’RE NOMINATED BY A REPUBLICAN PRESIDENT TODAY THERE ARE A WHOLE BUNCH OF PEOPLE WHO SAY HECK YEAH, WE WON THE ELECTION, WE GET OUR GUY ON THE COURT, WEAR YOUR JERSEY. YOU’RE SUPPOSED TO BE A REPUBLICAN WHEN YOU’RE ON THE BENCH AND OTHER PEOPLE — I THINK THAT’S A TERRIBLE VIEW. OTHER PEOPLE WHO SAY HOPEFULLY HE CAN GROW IN OFFICE AND BECAUSE HE’S GOING TO BE NOMINATED AND CONFIRMED TO THE SWING SEAT, THE KENNEDY VOTE, THE POWELL VOTE ON COURT HE WILL BE BIG ENOUGH TO RISE ABOVE THE MUCK IN POLITICS AND WHEN THERE ARE REALLY BIG ISSUES THAT FACE THE COUNTRY TO GET TO THE COURT AT LEAST IN A 4-4 COURT THIS COULD BE THE GUY WHO RISES TO THE LEVEL OF GIVES US SOLOMONIC WISDOM MAYBE AS A QUASI-KINGLY FIGURE. WHAT DO YOU SAY TO THE PERCEPTION OF A SWING SEAT ON THE COURT? WHAT DOES THAT MEAN?>>NOT ENTIRELY SURE WHAT IT MEANS TO INDIVIDUAL PEOPLE WHO USE THAT TERM.>>ARE YOU BEING CONSIDERED FOR THE SWING SEAT?>>I AM NOMINATED TO REPLACE JUSTICE KENNEDY, WHO WAS HIS OWN MAN, AS AM I MY OWN JUDGE, AND I’VE TALKED ABOUT HIS JURISPRUDENCE, AND HIS DEVOTION TO LIBERTY, WHICH HE FOUND AS THE UNIFYING THEME OF ALL THE CONSTITUTIONAL PROVISIONS, SO I SAID ESTABLISHED A LEGACY OF LIBERTY FOR OURSELVES AND OUR POSTERITY AS THE FRAMERS ESTABLISHED THIS CONSTITUTION TO SECURE THE BLESSINGS OF LIBERTY FOR OURSELVES AND OUR POSTERITY, BUT I’VE READ HE PUBLICLY IN PUBLIC STATEMENTS DIDN’T LIKE THAT TERM, AND I’M NOT SURE I ALWAYS KNOW WHAT PEOPLE MEAN BY THAT TERM, AS I SAID REPEATEDLY BUT I REALLY BELIEVE IT, I THINK OF THE COURT, AT LEAST IF I’M ON IT, I THINK OF THE COURT, PERIOD, ARRESTS A TEAM OF NINE, AND IF I’M ON IT, FORTUNATE ENOUGH TO BE CONFIRMED, I THINK OF MYSELF AS TRYING TO BE A TEAM PLAYER. I THINK THINGS THROUGH A SPORTS LINE SOMETIMES AS I KNOW YOU DO, TOO, SENATOR, AND I THINK THAT’S IMPORTANT. I’M NOT NAIVE. I’M NOT NAIVE. THERE WILL BE CASES WHERE PEOPLE DIVIDE, BUT I DO THINK THAT MIND-SET AND THAT ATTITUDE MATTERS IN ANY COLLEGIAL BODY IN THE COURT, IS A COLLEGIAL BODY, SO DIFFERENT CASES –>>I’M ONLY INTERRUPTING BECAUSE I WATCHED THE CHAIRMAN PULL HIS LITTLE GAVEL AND IF I DON’T GET IN MY QUESTION BEFORE THE BELL I’M DONE. I CAN GET ONE MORE OFF IF I FIRE FAST.>>MAKE SURE IT’S A SHORT QUESTION.>>YES, SIR. WHEN I WAS WRITING MY BITTERATION I STRUGGLED TO FIND MY VOICE. MY ADVISER SAID PUT AN 8×10 PICTURE NEXT TO YOUR KEYBOARD AND MAKE IT BE SOMEBODY YOU’RE WRITING TO EVERY DAY, SOMEBODY WHO IS SMARTER THAN YOU BUT KNOWS NOTHING ABOUT YOUR TOPIC. THIS WAS GREAT ADVICE. I TOOK A PICTURE OF MY AUNT FROM ONE OF THE FARMS I USED TO WORK ON WHEN I WAS A KID AND SHE’S FAR SMARTER THAN I AM, SHE DIDN’T KNOW ANYTHING ABOUT THE TOPIC I WAS WRITING ABOUT, AND IT WAS AN INCREDIBLY HELPFUL DEVICE FOR ME TO EVERY DAY FIGURE OUT WHO I WAS WRITING TO. WHEN YOU WRITE YOUR OPINIONS, WHO ARE YOU WRITING FOR?>>MULTIPLE AUDIENCES, SENATOR. THINKING FIRST AND FOREMOST ABOUT THE LITIGANTS BEFORE US, AND I WANT THE LOSING PARTY IN PARTICULAR TO RESPECT THE OPINION. THEY’RE NOT GOING TO AGREE WITH IT BY DEFINITION BUT I WANT THEM TO RESPECT THE OPINION, THE CLARITY OF THE OPINION, THE THOROUGHNESS OF THE OPINION, THE FACT THAT I UNDERSTOOD THE REAL WORLD CONSEQUENCES THAT I GRAPPLED WITH THE LAW, THAT I GRAPPLED 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 WHEN I LOST, AT LEAST I FELT LIKE I GOT A FAIR SHAKE. WHY DOES THAT MATTER? BOTH DUE PROCESS IN THE INDIVIDUAL CASE BUT IT BUILDS OVERALL CONFIDENCE I THINK IN THE JUDICIARY TO KNOW YOU’RE GETTING A FAIR SHAKE, EVEN WHEN YOU LOSE. I’M ALSO WRITING FORT PARTIES AFFECTED BY THE DECISION, SO WE DECIDE CASES IN CONTROVERSIES BUT WE WRITE OPINIONS THAT HAVE PRECEDENTIAL FACT SO THE OPINIONS NEED TO BE CLEAR, THEY NEED TO BE ORGANIZED. THEY CAN, IF THERE’S A SCREWED UP FOOTNOTE OR SOMETHING THAT’S GOING TO CALL IT. I’VE SEEN IT IN MY EXECUTIVE BRANCH IN PRIVATE PRACTICE EXPERIENCE CAUSE ALL SORTS OF COMPLICATIONS SO TO GET IT JUST EXACTLY RIGHT IS SO IMPORTANT, WHICH TAKES DRAFT AFTER DRAFT AFTER DRAFT, BUT I’M THINKING ABOUT THE AFFECTED PARTIES, WHETHER IT’S AGENCIES OR REGULATED PARTIES OR THE CRIMINAL DEFENSE BAR OR THE PROSECUTION, THE U.S. ATTORNEY’S OFFICE, I’M ALWAYS THINKING ABOUT THAT. I’M THINKING ABOUT SOMEONE LIKE YOU, SIMILAR TO YOUR MOTTO, SOMEONE WHO JUST 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 TO BE ABLE TO FOLLOW IT, SO I ALWAYS TRY TO HAVE AN INTRODUCTORY PARAGRAPH OR A FEW PAGES, AS YOU’VE SEEN, IN A FEW OF THEM LIKE THE PHH CASE IS A LONG INTRODUCTION, WHERE THEY COULD JUST READ THE INTRODUCTION, SAY, I GOT IT, AND THEN THEY CAN READ THE WHOLE THING IF THEY WANT. I THINK THAT’S VERY IMPORTANT AS WELL. I’M WRITING, I THINK, ABOUT STUDENTS, SO STUDENTS, WHERE DO THEY LEARN LAW? THEY LEARN LAW OFTENTIMES BY READING OPINIONS. I’VE TAUGHT FOR 12 YEARS AND I CERTAINLY UNDERSTAND THE VALUE OF TEACHING BUT TEACHING THROUGH YOUR OPINIONS, THAT’S NOT THE FIRST THING I’M THINKING ABOUT, BUT THAT IS, COULD 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 TO SENATOR COONS CONVERSATION THE HISTORICAL BACKDROP OF THE INDEPENDENT AGENCIES, MAYBE A STUDENT WILL PICK THAT UP AND THINK THAT’S GOOD, AND THEN I’M THINKING I THINK ALSO ABOUT PROFESSORS AS WELL, NOT IN A SENSE OF TRYING TO CONVINCE NECESSARILY IF IT’S NOT SOMETHING CONVINCIBLE BUT THE SENSE OF PROFESSORS ARE THINKING FOR YEARS ABOUT THINGS I MIGHT BY DEFINITION HAVE A WEEK OR TWO TO SPEND, AND THEY’RE WRITING TREATISES AND LAW REVIEW ARTICLES AND I WANT THEM TO AT LEAST UNDERSTAND AND HELP LOOK AT MY OPINIONS TO BUILT BODY OF LAW.>>THANK YOU.>>I’LL END, THANK YOU, CHAIRMAN.>>HOW COME YOU DIDN’T ASK THAT QUESTION FIRST?>>YOU TOLD ME TO ASK LAST.>>WE’RE GOING TO TAKE A TEN-MINUTE BREAK, ABOUT YOU IF YOU CAN BE BACK IN FIVE MINUTES, IT WOULD BENEFIT SENATOR BLUMENTHAL.>>YES, OKAY, I’LL DO IT.>>SENATOR BLUMENTHAL.>>THANKS, MR. CHAIR OPINION. GOOD AFTERNOON, JUDGE. I WANT TO BEGIN BY TALKING ABOUT THE ELEPHANT IN THE ROOM, NON-THEORETICAL, 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’RE IN UNCHARTED TERRITORY HERE. IT IS UNPRECEDENTED FOR A SUPREME COURT NOMINEE TO BE NAMED BY A PRESIDENT WHO IS AN UNINDICTED COCONSPIRATOR IN THE U.S. VERSUS NIXON CASE, TWO OF THE JUSTICES HAD 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 THE UNITED STATES SUPREME COURT. IN OTHER WORDS, WILL YOU TAKE YOURSELF OUT OF RULING ON ANY OF THE ISSUES INVOLVING HIS PERSONAL CRIMINAL OR CIVIL LIABILITY?>>SENATOR, ONE OF THE CORE PRINCIPLES I’VE ARTICULATED HERE IS THE INDEPENDENCE OF THE JUDICIARY, WHICH I KNOW YOU CARE ABOUT DEEPLY, TOO, AND I THINK UNDERGIRDS SOME OF YOUR COMMENTS YESTERDAY. IN THE INDEPENDENCE OF THE JUDICIARY IS CRITICAL TO THE CONFIDENCE OF THE AMERICAN PEOPLE IN THE JUDICIARY, AND TO THE RULE OF LAW IN THE UNITED STATES, BUT ONE KEY FACET OF INDEPENDENCE OF THE JUDICIARY, AS I’VE STUDIED THE HISTORY OF NOMINEES, IS NOT TO MAKE COMMITMENTS ON PARTICULAR CASES — >>I’M NOT ASKING FOR A PARTICULAR COMMITMENT AND I’M GOING TO TAKE YOUR ANSWER AS A NO. IT’S REALLY A YES OR NO QUESTION. YOU WILL NOT COMMIT TO RECUSE YOURSELF. WILL YOU NOT COMMIT TO TAKE YOURSELF OUT OF THAT DECISION DESPITE THE UNIQUE CIRCUMSTANCES OF YOUR NOMINATION?>>SENATOR, I THINK, TO BE CONSISTENT WITH THE PRINCIPLE OF INDEPENDENCE OF THE JUDICIARY, I SHOULD NOT AND MAY NOT MAKE A COMMITMENT ABOUT HOW I WOULD HANDLE A PARTICULAR CASE, AND THE DECISION TO PARTICIPATE IN A CASE IS ITSELF A DECISION IN A PARTICULAR CASE, AND THEREFORE, FOLLOWING THE PRECEDENT SET BY ALL THE NOMINEES BEFORE ME, I NEED TO BE CAREFUL, AND AGAIN, YOU MAY DISAGREE WITH THIS, BUT THIS IS PART OF WHAT I SEE AS THE INDEPENDENCE OF THE JUDICIARY.>>WELL, I DO DISAGREE AND I AM TROUBLED, AND DISTURBED BY YOUR REFUSAL TO SAY THAT YOU WILL TAKE YOURSELF OUT OF THAT KIND OF CASE. I WANT TO MOVE ON TO SOME EXAMPLES OF REAL WORLD IMPACTS ON REAL PEOPLE, AND TAKING THAT AS A FACTOR, AS YOU’VE ARTICULATED IT, IN THE DECISIONS THAT YOU’VE MADE, I WANT TO TALK ABOUT JANE DOE IN GARZA V. HAGAN. AS YOU KNOW, SHE WAS A 17-YEAR-OLD UNACCOMPANIED MINOR WHO CAME ACROSS THIS BORDER, HAVING ESCAPED SERIOUS THREATENING HORRIFIC PHYSICAL VIOLENCE IN HER FAMILY, IN HER HOMELAND. SHE BRAVED HORRIFIC THREATS OF RAPE AND SEXUAL EXPLOITATION AS SHE CROSSED THE BORDER. SHE WAS EIGHT WEEKS PREGNANT. 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 THAT 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 RESIDENTS. SHE WAS 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. IT REVERSED 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 SUPREME COURT PRECEDENT,” AND IT SAID FURTHER, “THE GOVERNMENT’S INSISTENCE THAT IT MUST NOT EVEN STAND BACK AND PERMIT ABORTION TO GO FORWARD FOR SOMEONE IN SOME FORM OF CUSTODY IS FREAKISHLY ERRATIC.” IN ADDITION TO BEING ERRATIC, 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 38% 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’VE SAID IS CORRECT, AS TO THE FACTS HERE, CORRECT?>>NO, SENATOR, I RESPECTFULLY DISAGREE IN VARIOUS PARTS. MY RULING, MY POSITION IN THE CASE WOULD NOT HAVE BLOCKED — >>IT WOULD HAVE DELAYED IT, AND IT WOULD HAVE SET PERILOUSLY CLOSE TO THE 20-WEEK LIMIT UNDER TEXAS LAW, CORRECT?>>NO. WE WERE STILL SEVERAL WEEKS AWAY. I SAID SEVERAL THINGS THAT ARE IMPORTANT, I THINK.>>WELL, I WANT TO GO ON, BECAUSE I CAN READ YOUR DISSENT, BUT I WANT TO GO TO — >>WELL, YOU READ SEVERAL THINGS RESPECTFULLY, FIRST OF ALL, I THINK THE OPINION WAS BY ONE JUDGE THAT YOU WERE READING FROM, THAT WAS NOT THE OPINION FOR THE MAJORITY. 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, I UNDERSTAND, ON WHETHER WE WERE FOLLOWING PRECEDENT, HOW TO READ THAT PRECEDENT BUT I WAS TRYING TO DO SO AS FAITHFULLY AS I COULD AND EXPLAIN THAT. I ALSO DID NOT JOIN THE SEPARATE OPINION, THE SEPARATE DISSENT THAT SAID SHE HAD NO RIGHT TO OBTAIN AN ABORTION AT ALL. I DID NOT SAY THAT AND I ALSO MADE CLEAR THAT THE GOVERNMENT COULD NOT USE THIS IMMIGRATION SPONSOR PROVISION AS A RUSE TO TRY TO DELAY HER ABORTION PAST TO YOUR POINT TO THE TIME IT WAS SAFE.>>LET’S TALK ABOUT YOUR DISSENT IN JUST A MOMENT, BUT FIRST, I WANT TO TALK ABOUT A LIST. IT’S THE LIST THAT DONALD TRUMP CIRCULATED IN MAY OF 2016 OF HIS POTENTIAL SUPREME COURT NOMINEES. MAY OF 2016, WAS YOUR NAME ON THAT LIST?>>IT WAS NOT.>>AND THEN HE CIRCULATED ANOTHER LIST IN NOVEMBER OF 2017, ANOTHER LIST OF SUPREME COURT NOMINEES. NOVEMBER 2017, WAS YOUR NAME ON THAT LIST?>>2017, YES. THERE WAS ANOTHER LIST IN THE INTERIM BETWEEN THOSE TWO.>>AND HIS LITMUS TEST FOR THAT LIST WAS THAT A JUSTICE THAT HE’D NOMINATE WE HAVE TO AUTOMATICALLY OVERTURN ROE V. WADE, CORRECT?>>I’LL NOT GOING TO COMMENT ON WHATEVER HE SAID PUBLICLY.>>WELL, HE SAID IT. THAT’S NOT IN DISPUTE. AND IN BETWEEN IN –>>I’M NOT SURE THE EXACT WORDS YOU JUST USED ARE CONSISTENT WITH WHAT HE SAID, BUT WHATEVER HE SAID PUBLICLY WILL STAND IN THE RECORD.>>EXACTLY. OCTOBER OF 2017, YOUR DECISION AND DISSENT IN GARZA OCCURRED, CORRECT?>>IT DID, BUT THAT CASE CAME TO US IN EMERGENCY POSTURE. I DIDN’T SEEK THAT CASE. THAT WAS NOT A SPEECH. I WAS DRIVING HOME ON A WEDNESDAY NIGHT, AS I RECALL AND THE CLERK’S OFFICE CALLED AND SAID WE HAVE AN EMERGENCY ABORTION CASE, WHICH IS VERY UNUSUAL IN OUR COURT, FIRST TIME I’D HAD ONE.>>OKAY, WHAT OCCURRED THEN BETWEEN MAY OF 2016 AND NOVEMBER 2017 BESIDES YOUR GARZA DISSENT THAT PUT YOU ON THAT LIST?>>WELL, MR. McGAHN WAS WHITE HOUSE COUNSEL, AND THE PRESIDENT HAD TAKEN OFFICE AND BY THEN, IF I’M, SORRY, I’M LOOKING AT THE DATES, I THINK I GOT IT, MAY — >>WE CAN HOLD IT UP HIGHER?>>THAT’S OKAY. I GOT IT NOW. SO — I’M MISSING THE INTERIM LIST. PRESIDENT TRUMP HAD TAKEN OFFICE. MR. McGAHN WAS WHITE HOUSE COUNSEL. THOSE ARE JUST FACTS, AND THEN WHAT ELSE HAPPENED, I — >>IT’S A MYSTERY. >>NO, IT’S NOT A MYSTERY. I’M JUST DEBATING WHETHER I WANT TO SAY — BUT A LOT OF JUDGES AND LAWYERS THAT I KNOW WILL COME BACK — >>I WANT TO TALK ABOUT YOUR DISSENT.>>COULD I ANSWER THE QUESTION? I HAD AN ANSWER TO YOUR QUESTION. YOU SAID WHAT ELSE HAPPENED, AND I HAVEN’T ANSWERED IT.>>GO AHEAD.>>A LOT OF JUDGES AND LAWYERS I KNOW MADE CLEAR TO I THINK VARIOUS PEOPLE THAT THEY THOUGHT I SHOULD AT LEAST BE CONSIDERED BASED ON MY RECORD FOR THE LAST 12 YEARS, AND COLLEAGUES OF MINE THOUGHT I SHOULD BE CONSIDERED, AND I THINK THAT, I APPRECIATE THAT.>>AND MAYBE MORE THAN A FEW OF THEM CITED YOUR DISSENT IN GARZA.>>I THINK IT HAD HAPPENED LONG BEFORE THAT, ACTUALLY. THEY — >>LET’S TALK ABOUT THE DISSENT THOUGH, IN THAT DISSENT, THREE TIMES YOU USED THE TERM “ABORTION ON DEMAND.” ABORTION ON DEMAND, AS YOU KNOW, IS A CODE WORD IN THE ANTI-CHOICE COMMUNITY. IN FACT, IT’S USED BY JUSTICES SCALIA AND THOMAS IN THEIR DISSENTS FROM SUPREME COURT OPINIONS THAT AFFIRM ROE V. WADE. THEY’VE USED IT NUMEROUS TIMES IN THOSE DISSENTS, AND IT IS A WORD USED IN THE ANTI-CHOICE COMMUNITY, AND IN ADDITION, IN THAT DISSENT, YOU REFER TO ROE V. WADE AS EXISTING SUPREME COURT PRECEDENT. YOU DON’T REFER TO IT AS ROE V. WADE PROTECTING JANE DOE’S RIGHT TO PRIVACY OR HER RIGHT TO AN ABORTION. YOU REFER TO IT AS EXISTING SUPREME COURT PRECEDENT, NOT SUPREME COURT PRECEDENT, “EXISTING SUPREME COURT PRECEDENT.” NOW, I DON’T REFER, I DON’T RECALL SEEING A JUDGE REFER TO EXISTING SUPREME COURT PRECEDENT IN OTHER DECISIONS, CERTAINLY NOT COMMONLY, UNLESS THEY’RE OPENING THE POSSIBILITY OF OVERTURNING THAT PRECEDENT. IT’S A LITTLE BIT LIKE SOMEBODY INTRODUCING HIS WIFE TO YOU AS MY CURRENT WIFE. YOU MIGHT NOT EXPECT THAT WIFE TO BE AROUND FOR ALL THAT LONG. MY CURRENT WIFE, EXISTING SUPREME COURT PRECEDENT, AND THROUGHOUT YOUR OPINION YOU’RE CAREFUL NEVER TO SAY THAT THE CONSTITUTION PROTECTS THE RIGHT TO CHOOSE. YOU CAN SEE THAT THE PARTIES HAVE “ASSUMED FOR PURPOSES OF THIS CASE” THAT THE BEHALF HAS A RIGHT TO END HER 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.>>WELL, I HAVE TO INTERRUPT, SENATOR, BECAUSE I WAS REFERRING TO THE PARENTAL CONSENT CASES AS WELL, WHICH I TALKED ABOUT AT SOME LENGTH THERE, AND MY MY DISAGREEMENT WITH THE OTHER JUDGE WAS THAT I THOUGHT I WAS AS BEST I COULD FAITHFULLY FOLLOWING THE PRECEDENT ON THE PARENTAL CONSENT STATUTES WHICH ALLOWED REASONABLE REGULATION AS CASEY SAID, MINORS BENEFIT FROM CONSULTATION ABOUT ABORTION. THAT’S AN EXACT COURT FROM CASEY, AND THE SUPREME COURT UPHELD THOSE STATUTES EVEN THOUGH THEY ALLOWED, I MEAN THEY OCCASIONED SOME DELAY IN THE ABORTION PROCEDURE. AND JUSTICES MARSHALL, BRENNAN AND BLACKMON DISSENTED. I PUT IT TOGETHER, ROE V. WADE PLUS THE PARENTAL CONSENT STATUTES AND I SAID DIFFERENT PEOPLE DISAGREE ABOUT THIS FROM DIFFERENT DIRECTIONS, BUT WE HAVE TO FOLLOW IT AS FAITHFULLY AS POSSIBLE, AND THE PARENTAL CONSENT WAS THE MODEL — NOT THE MODEL, THE PRECEDENT. CAN I SAY ABORTION ON DEMAND, I’M NOT FAMILIAR WITH THE CODE WORD. WHAT I’M FAMILIAR WITH IS CHIEF JUSTICE BERGER IN HIS CONCURRENCE IN ROE V. WADE ITSELF. HE JOINED THE MAJORITY. HE WROTE A CONCURRENCE THAT SPECIFICALLY SAID THATHE T COURT TODAY DOES NOT UPHOLD ABORTION ON DEMAND. THAT’S HIS PHRASE AND HE JOINED THE MAJORITY IN ROE V. WADE. WHAT THAT MEANT IN PRACTICE OVER THE YEARS, OVER THE LAST 45 YEARS, IS THAT REASONABLE REGULATIONS ARE PERMISSIBLE SO LONG AS THEY DON’T CONSTITUTE AN UNDUE BURDEN. AND THAT’S THEN THE PARENTAL CONSENT, INFORMED CONSENT, 24-HOUR WAITING PERIOD, PARENTAL INNOCENCE NOTICE LAWS. THAT’S WHAT I WAS RECOGNIZING WHEN I USED THAT TERM. >>WELL, IT ALSO WAS A SIGNAL. LET’S BE VERY BLUNT HERE. IT WAS A SIGNAL TO THE FEDERALIST SOCIETY AND THE HERITAGE FOUNDATION AND TO THE PREPARERS OF THOSE LISTS, THE PRESIDENT OUT SOURCED THAT TASK TO THOSE GROUPS THAT YOU WERE PREPARED AND YOU ARE TO OVERTURN ROE V. WADE. ABORTION ON DEMAND HAS A VERY SPECIFIC MEANING IN THE DISSENT AFTER ROE, AND THE CONCURRENCES, EXISTING SUPREME COURT PRECEDENT, AND REFERENCE TO THAT PRECEDENT NOT AS YOU WISHED IT TO BE, BUT AS THE LAW, SUPREME COURT PRECEDENT, EXISTING NOW REQUIRED. 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 COULD ALWAYS OVERTURN IT AS PRECEDENT, AND IN FACT THERE WERE A NUMBER OF JUSTICES WHO WOULD DO SO?>>I THINK THAT’S WHAT LEGAL SCHOLARS HAVE — SOME LEGAL SCHOLARS HAVE UNDOUBTEDLY SAID THINGS LIKE THAT OVER TIME, BUT THAT’S DIFFERENT FROM WHAT I, AS A JUDGE, MY POSITION AS A JUDGE IS THAT THERE IS 45 YEARS OF PRECEDENT AND THERE IS PLANNED PLANNED PARENTHOOD VERSUS CASEY, WHICH REAFFIRMED ROE. SO THAT’S PRECEDENT ON PRECEDENT AS I HAVE EXPLAINED, AND THAT’S IMPORTANT, AND THAT’S AN IMPORTANT PRECEDENT OF THE SUPREME COURT. IT’S NOT THE ONLY PRECEDENT, THOUGH. IN CASEY, IT’S VERY IMPORTANT TO UNDERSTAND, I THINK, AND IT GOES TO YOUR POINT ABOUT EXISTING, PLANNED PARENTHOOD VERSUS CASEY REAFFIRMED ROE, BUT UPHELD PENNSYLVANIA’S WAITING PERIOD, INFORMED CONSENT PROVISION AND PARENTAL CONSENT PROVISION OF THE PENNSYLVANIA LAW. JUSTICES BLACKMON AND STEVENS DISSENTED FROM THAT PART OF THE DECISION IN PLANNED PARENTHOOD VERSUS CASEY. THAT WAS JUSTICES KENNEDY, O’CONNOR AND SUITOR. IN MANY WAYS, CASEY REACHED IN APPLYING THE UNDUE BURDEN STANDARD, REACHED A POSITION THAT ALLOWED SOME REASONABLE REGULATION AS THE COURT PUT IT, SO LONG AS IT DOESN’T CONSTITUTE AN UNDUE BURDEN. SO EXISTING SUPREME COURT PRECEDENT IS THE BODY OF PRECEDENT ON THE REGULATIONS, TOO. IT’S NOT — IT’S ROE, BUT THEN WHAT REGULATION, AND THAT’S THE BODY OF EXISTING SUPREME COURT PRECEDENT. >>AND THAT’S EXACTLY THE POINT HERE. 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 IT NECESSARILY WAS AS YOU WISHED IT NOW. >>WELL, TWO OTHER THINGS, SENATOR. ONE, I DID NOT JOIN THE SEPARATE OPINION OF ANOTHER DISSENTER WHO SAID THAT THERE WAS NO CONSTITUTIONAL RIGHT AT ALL FOR THE MINOR IN THAT CASE, I DID NOT JOIN THAT OPINION. SECONDLY, I’LL SAY THREE THINGS. SECONDLY, I SAID IN A FOOTNOTE JOINED BY JUDGE HENDERSON AND JUDGE GRIFFITH THAT MY WHOLE DISSENT WAS JOINED BY BOTH OF THEM, THAT THE GOVERNMENT COULD NOT USE THIS TRANSFERS TO BE A RESPONSE PER PROCEDURE AS A RUSE TO DELAY THE ABORTION PAST AN UNSAFE TIME. >>LET ME ASK YOU — >>THIRDLY, IF THE NINE DAYS OR SEVEN DAYS EXPIRED, THAT THE MINOR AT THAT POINT, UNLESS THE GOVERNMENT HAD SOME OTHER ARGUMENT THAT HAD NOT UNFOLDED YET THAT WAS PERSUASIVE, I’M NOT SURE WHAT THAT WOULD HAVE BEEN, THE MINOR WOULD HAVE TO BE ALLOWED TO OBTAIN THE ABORTION AT THAT TIME. THE POINT WAS SIMPLY, AND IT WASN’T MY POLICY. MY QUESTION WAS TO REVIEW THE POLICY SET FORTH BY THE GOVERNMENT. AND THE QUESTION WAS, WAS THAT POLICY CONSISTENT WITH PRECEDENT. AND IT WAS A DELAY UNDOUBTEDLY, BUT A DELAY CONSISTENT WITH THE PARENTAL CONSENT PROVISIONS. >>WELL, LET ME JUST ASK YOU THEN, CAN YOU COMMIT, SITTING HERE TODAY, THAT YOU WOULD NEVER OVERTURN ROE V. WADE?>>SO, SENATOR, EACH OF THE EIGHT JUSTICES CURRENTLY ON THE SUPREME COURT, WHEN THEY WERE IN THIS SEAT, DECLINED TO ANSWER THAT QUESTION. >>I UNDERSTAND YOUR ANSWER. YOU HAVE GIVEN IT ON OTHER ISSUES BEFORE. BUT YOU CAN UNDERSTAND ALSO GIVEN WHAT WE’VE SEEN IN GARZA AND THE PATTERN HERE OF SENDING A SIGNAL ABOUT YOUR WILLINGNESS TO OVERTURN ROE V. WADE THAT YOUR RESPONSE LEAVES IN SERIOUS QUESTION YOUR COMMITMENT TO THIS PRECEDENT. IN FACT, GIVEN THE REAL WORLD CONSEQUENCES HERE, 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 WAIT 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 HEALTH CARE ISSUES. YOU HAVE TAKEN THE POSITION IN SEVEN SKIES, AND I AM GOING TO PUT UP A POSTER, THAT THE PRESIDENT’S AUTHORITY UNDER THE CONSTITUTION, THE PRESIDENT MAY DECLINE TO ENFORCE A STATUTE THAT REGULATES PRIVATE INDIVIDUALS WHEN HE DEEMS, WHEN HE DEEMS THE INSTITUTE UNCONSTITUTIONAL EVEN IF A COURT HAS HELD THAT, OR WOULD HOLD THE INSTITUTE CONSTITUTIONAL. UNDER THE AFFORDABLE CARE ACT, AS YOU KNOW, THERE ARE PROTECTIONS FOR MILLIONS OF AMERICANS WHO SUFFER FROM PRE-EXISTING CONDITIONS. THAT PROTECTION HAS REAL-WORLD CONSEQUENCES. PRE-EXISTING CONDITIONS INCLUDE ALZHEIMER’ ARTHRITIS, CROHN’S DISEASE, HEPATITIS, LUPUS, MENTAL DISORDERS. THAT’S JUST A VERY PARTIAL LIST, INCLUDING BEING PREGNANT. YOU HAVE ANSWERED MY COLLEAGUE, SENATOR COONS, THAT YOU WOULDN’T SAY WHETHER OR NOT THE PRESIDENT WOULD HAVE THE POWER TO STRIKE DOWN THAT INSTITUTE UNILATERALLY OR DECIDE THAT HE WOULD NOT ENFORCE IT. BECAUSE THERE IS A CASE PENDING. DO YOU BELIEVE THAT THE PRESIDENT CAN REFUSE TO ENFORCE THAT INSTITUTE EVEN IF THE UNITED STATES SUPREME COURT UPHOLDS IT?>>SENATOR, A COUPLE THINGS. FIRST OF ALL, JUST TO CLOSE OUT THE PRIOR DISCUSSION, YOU SAID DELAYED COMPLETELY. THAT’S NOT WHAT I SAID. IN FACT, I SAID IT COULD NOT BE DELAYED PAST THE POINT OF A SAFE TIME. I JUST WANTED TO CLOSE THE LOOP ON THAT AND MAKE CLEAR THE RECORD ON THAT. ON THIS, I WAS REFERRING TO THE CONCEPT OF PROSECUTORIAL DISCRETION. THIS IS IN A BROADER ESTABLISHED BY UNITED STATES V. RICHARD NIXON CASE WHICH SAYS THE EXECUTIVE BRANCH HAS THE EXCLUSIVE AUTHORITY AND ABSOLUTE DISCRETION WHETHER TO PROSECUTE A CASE. THAT’S AN EXACT QUOTE FROM U.S. V. NIXON. IN HECKLER V. CHENEY, THAT APPLIES TO CIVIL ENFORCEMENT AS WELL. THAT’S THE PRECEDENT OF THE SUPREME COURT THAT I WAS EXPLAINING IN AIKEN. 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 IT AT THAT TIME BECAUSE IT WAS NOT RIPE UNDER THE ANTI-INJUNCTION ACT AND WE SHOULD WAIT TO CONSIDER IT — >>BUT HERE’S MY QUESTION TO YOU. THE ENFORCEMENT OF THE AFFORDABLE CARE ACT AS A MATTER OF PROSECUTORIAL DISCRETION, AND MY QUESTION IS EVEN IF THE UNITED STATES SUPREME COURT IN THAT TEXAS CASE SHOULD HOLD IT TO BE CONSTITUTIONAL, COULD PRESIDENT TRUMP DECLINE TO ENFORCE IT AND PUT AT RISK THE HEALTH OF LITERALLY TENS OF MILLIONS OF AMERICANS, INCLUDING 500,000 PEOPLE IN CONNECTICUT WHO SUFFER FROM THOSE DISEASES, INCLUDING THOSE HOMELESS PEOPLE WHO COME TO THE SHELTER WHERE YOU DISTRIBUTE MEALS?>>SO A COUPLE OF THINGS ON THAT, SENATOR. THE CONCEPT OF PROSECUTORIAL DISCRETION, AS YOU KNOW, OF COURSE, FORMER U.S. ATTORNEY, IS WELL ROOTED IN AMERICAN LAW. SO IF A U.S. ATTORNEY DECIDES WE ARE GOING TO GO AFTER BAIJ FRAUD AND AFTER NOT AFTER LOW-LEVEL MARIJUANA, THAT’S CLASSIC PROSECUTORIAL DISCRETION. >>BUT WE’RE NOT TALKING ABOUT THAT DISCRETION. WE ARE TALKING ABOUT THE PRESIDENT SAYING THAT LAW, THE AFFORDABLE CARE ACT, OR FOR THAT MATTER CIVIL RIGHTS STATUTES WHICH THIS PRESIDENT, UNFORTUNATELY, COULD DECIDE HE IS NOT GOING TO ENFORCE, OR CONSUMER PROTECTION STATUTES OR EVEN ANTI-CORRUPTION STATUTES. WE ARE TALKING ABOUT STATUTES THAT, AS YOU SAID HERE, REGULATE INDIVIDUALS AND THEY PROTECT THEM. SIMPLY BECAUSE HE DEEMS THEM UNCONSTITUTIONAL, REFUSE TO ENFORCE THEM NOT IN SELECTED CASES, ACROSS THE BOARD. >>A COUPLE OF THINGS, SENATOR. FIRST OF ALL, FOR A FEW OF YOUR EXAMPLES, OF COURSE, THEY ARE PRIVATE CAUSES OF ACTION AS WELL.>>THERE ARE PRIVATE CAUSES OF ACTION, BUT THE CHIEF ENFORCER. >>I AGREE WITH THAT. ON PROSECUTORIAL DISCRETION, WHAT I SAID IN THE SUBSEQUENT AIKEN COUNTY CASE, I ELABORATED ON THAT. IN A SUBSEQUENT MARQUETTE SPEECH THAT’S PUBLISHED IN THE MARQUETTE LAWYER THAT YOU HAVE, I INDICATED THAT THE LIMITS OF PROSECUTORIAL DISCRETION ARE UNCERTAIN AND IT WOULD BE IMPORTANT FOR ACADEMICS AND OTHERS TO STUDY THAT HISTORY AND FIGURE OUT WHAT THE LIMITS ARE. SO, FOR EXAMPLE, IN THE DEFERRED IMMIGRATION — >>MY POINT IS THERE ARE NO LIMITS HERE. >>THE SUPREME COURT, IF YOU LOOK AT THE QUOTE IN UNITED STATES V. RICHARD NIXON, WHICH I KNOW YOU HAVE READ, IT SAYS AT THE EXECUTIVE BRANCH HAS THE EXCLUSIVE AUTHORITY AND ABSOLUTE DISCRETION WHETHER TO PROSECUTE A CASE. NOW, HECKLER V. CHENEY REFERS BACK TO THAT, CITES THAT. THAT’S IN THE CIVIL CONTEXT. THERE IS SOME LIMITS PRESUMABLY ON PROSECTORIAL DISCRETION. THIS CAME UP IN THE IMMIGRATION CONTEXT IN PRESIDENT OBAMA’S ADMINISTRATION. THAT’S STILL SOMETHING I WON’T COMMENT ON DIRECTLY. BUT THERE ARE ALWAYS QUESTIONS ABOUT PROSECTORIAL DISCRETION OF — >>WELL LET ME POINT OUT. I APOLOGIZE FOR INTERRUPTING BUT MY TIME IS LIMITED. >>I UNDERSTAND. >>IN SEVEN SKY V. HOLDER, IN YOUR DISSENT YOU SAID UNDER THE CONSTITUTION, THIS IS IN YOUR DISSENT IN THAT CASE, YOU CITED JUSTICE SCALIA IN FREYTAG VERSUS COMMISSIONER AS YOUR AUTHORITY. THE PRESIDENT MAY DECLINE TO ENFORCE A INSTITUTE THAT REGULATES PRIVATE INDIVIDUALS WHEN THE PRESIDENT DEEMS THE INSTITUTE UNCONSTITUTIONAL, EVEN IF A COURT HAS HELD OR WOULD HOLD THE COURT, THE INSTITUTE CONSTITUTIONAL. I AM GOING TO LEAVE THIS TOPIC. I HOPE WE WILL HAVE AN OPPORTUNITY TO RETURN TO IT TOMORROW. I WANT TO TALK ABOUT THE SECOND AMENDMENT AND YOUR POSITION ON GUN VIOLENCE PREVENTION. AS YOU KNOW, MY STATE HAS A TRAGIC HISTORY AND EXPERIENCE, RECENT, WITH THIS ISSUE. BUT LITERALLY EVERY COMMUNITY IN THE WHOLE COUNTRY HAS SOME EXPERIENCE WITH GUN VIOLENCE PREVENTION BECAUSE 90 PEOPLE EVERY DAY DIE FROM IT. AND 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 THAT THEY ARE BANNED, LIKE MACHINE GUNS. IF OUR STANDARD IS GOING TO BE WHETHER ASSAULT WEAPONS ARE IN COMMON USE, WE ARE GOING TO HAVE MORE AND MORE OF THEM, AND THEY ARE IN COMMON USE. THEY ARE COMMONLY USED TO KILL PEOPLE. THAT’S WHAT THEY WERE DESIGNED TO DO. SO I WANT YOUR EXPLANATION AS TO HOW POSSIBLY YOU CAN JUSTIFY REQUIRING THAT GUN VIOLENCE PROTECTION STATUTES HAVE TO BE LONG STANDING OR TRADITIONAL, AND THAT THEY CANNOT IN ANY WAY PROTECT PEOPLE FROM WEAPONS, ASSAULT WEAPONS, THAT ARE, AS YOU PUT IT, IN COMMON USE BECAUSE THEY ARE IN COMMON USE ONLY BECAUSE THEY ARE NOT IN ANY WAY REGULATED FOR THE PUBLIC SAFETY. >>AS YOU NEED TO ANSWER THAT QUESTION, AND THEN WHEN YOU ARE DONE ANSWERING THAT QUESTION I AM GOING TO CALL ON SENATOR FLAKE. >>A FEW THINGS, SENATOR. FIRST, AT THE END OF MY HELLER OPINION I POINTED OUT THAT I GREW UP IN THIS AREA, AND THIS AREA HAS BEEN PLAGUED BY, IN THE ’70s AND ’80s, PLAGUED BY GAUGE AND GUN, DRUG VIOLENCE. IT’S BEEN KNOWN FOR A WHILE AS THE MURDER CAPITAL OF THE WORLD. SO I UNDERSTAND AND APPRECIATE YOUR INITIAL COMMENT ON THAT. SECONDLY, WHERE DID I GET THE TEST? I GOT IT RIGHT OUT OF THE SUPREME COURT’S OPINION IN HELLER, WHICH USES THOSE EXACT PHRASES AND ELABORATES ON THOSE IN THE SUBSEQUENT McDONALD’S CASE. I KNOW PEOPLE PASSIONATELY DISAGREE WITH THE SUPREME COURT’S DECISION IN HELLER AND WITH THE SUPREME COURT’S DECISION IN McDONALD’S, BUT AS A LOWER COURT JUDGE I AM FOLLOWING ALL THE PRECEDENT. IT’S NOT A CAFETERIA WHICH I PICK WHICH PRECEDENTS TO APPLY. I DID THAT. I EXPLAINED IT IN PAINSTAKING DETAIL WHY I THOUGHT THE TEST I WAS APPLYING WAS APPROPRIATE IN THAT CASE AND WENT THROUGH THE TEST. I MADE CLEAR THAT THE SUPREME COURT PART 3 OF JUSTICE SCALIA’S MAJORITY OPINION IN HELLER ALLOWED, STILL ALLOWED A LOT OF GUN REGULATION. MACHINE GUNS CAN BE BANNED. FELON IN POSITION, CONCEALED CARRY THERE. LAWS PROHIBITING POSSESSION BY PEOPLE WITH MENTAL ILLNESS. THE FOOTNOTE IN HELLER SAYS, THIS LIST IS NOT MEANT TO BE EXHAUSTIVE. I THINK THAT’S GUIDANCE TO THE LOWER COURT WHEN APPLYING THAT TEST CHIEF ROBERTS SAID IN THE ORAL ARGUMENT IN HELLER, YOU REASON BY ANALOGY AND THAT’S SOMETHING THAT I THINK IS APPROPRIATE AND I SAID IT IN MY OPINION. BUT ULTIMATELY I HAD TO APPLY THE TEST OF THE SUPREME COURT. I UNDERSTAND PEOPLE MAY DISAGREE, A, WITH THE SUPREME COURT OPINION, OR, B, HOW I APPLIED IT. I TRIED TO DO IT AS FAITHFULLY AS I COULD. >>SENATOR FLAKE. >>THANK YOU, MR. CHAIRMAN. THANK YOU, JUDGE. >>HEY, WAIT A MINUTE, WOULD YOU PLEASE? START HIS TIME OVER. JUDGE, YOU HAVE BEEN ATTACKED FOR THIS SHORT FOOTNOTE THAT YOU WROTE IN THE AFFORDABLE CARE ACT CASE ABOUT WHEN A PRESIDENT MAY BE INCLINED TO ENFORCE THE LAWS PASSED BY CONGRESS. IN A DIFFERENT OPINION YOU ACTUALLY ORDERED THE EXECUTIVE BRANCH TO COMPLY WITH THE LAW. YOU WROTE, QUOTE, IT IS NO OVERSTATEMENT TO SAY THAT OUR CONSTITUTIONAL SYSTEM OF SEPARATION OF POWERS WOULD BE SIGNIFICANTLY ALTERED IF WE WERE TO ALLOW EXECUTIVE AND INDEPENDENT AGENCIES TO DISREGARD FEDERAL LAW, END OF QUOTE. OBVIOUSLY, YOU DO NOT THINK THE PRESIDENT HAS A BLANK CHECK TO IGNORE THE LAW? SENATOR FLAKE. >>THANKS. ALWAYS HAPPY TO DEFER. >>SURE. >>I APPRECIATE YOUR ENDURANCE HERE TODAY, JUDGE. YOU MENTIONED YOUR MOTHER AS ONE OF YOUR JUDICIAL HEROES. WHO ELSE WOULD YOU PUT ON THAT LIST? WHAT PEOPLE DO YOU ADMIRE AND WHY?>>MY MOM, AS YOU MENTIONED, OF COURSE. TRIAL JUDGE, REAL WURMDS, REAL CONSEQUENCES, PEOPLE IN THE REAL WORLD. I SAW HER OPERATE A COURTROOM WITH FIRMNESS AND CIVILITY AND WAS WELL RESPECTED AS A PROSECUTOR FIRST AND A JUDGE. HER CIVILITY AND WORK ETHIC ARE SOMETHING, AND REMEMBERING THAT CASES HAVE REAL-WORLD CONSEQUENCES. JUSTICE KENNEDY IS OF MENTION. MODEL OF INDEPENDENCE. NEARLY DEFENDED JUDICIAL INDEPENDENCE THROUGHOUT HIS CAREER. MODEL CIVILITY AND COLLEGIALITY. YOU CAN LOOK AT 30 YEARS OF HIS OPINIONS AND WHAT’S THE HARSHEST THING EVER WRITTEN? IT’S NOT THAT YOU CAN’T FIND IT. JUST A MODEL OF CIVILITY IN HIS JUDICIAL OPINIONS. ORAL ARGUMENT ALWAYS SO COURTEOUS TO COUNSEL. IN HIS PUBLIC SPEECHES SOMEONE WHO ALWAYS CELEBRATED THE CONSTITUTION AND ITS PROTECTION OF INDIVIDUAL LIBERTY AND SHOWED BY HIS EXAMPLE, I THINK, HOW TO CONDUCT ONE’S SELF AS A JUDGE OFF THE BENCH. WHEN I BECAME A JUDGE, I WAS SWORN IN MAY 30th, 2006, IN HIS CHAMBERS. AND HE SAID, YOU ARE GOING TO GO BACK AND YOU ARE GOING TO FEEL SOON LONELY. YOU HAVE BEEN DOING THIS JOB AT THE WHITE HOUSE. IT’S ENERGETIC AND YOU ARE GOING TO FEEL QUIET. HE SAID YOU GET OUT AND TEACH, AND HE HAS TAUGHT SINCE 1975, I BELIEVE, WHEN HE BECAME A NINTH CIRCUIT JUDGE. AND I FOLLOWED THAT EXAMPLE AND TEACHING HAS BEEN AN IMPORTANT PART OF MY LIFE. SO HE INSTRUCTED THAT. YOU KNOW, THE LEGACY OF LIBERTY HE LEFT FOR THE UNITED STATES IS WRITTEN ALL THROUGH THE U.S. REPORTS. JUSTICE SCALIA IS SOMEONE I KNEW, AND ALSO A FIERCE ADHERENT TO THE CONSTITUTION AND SOMEONE WHO CHANGED STATUTORY INTERPRETATION, AS WE’VE DISCUSSED, IN TERMS OF HIS FOCUS ON THE TEXT. BUT IT WAS ROOTED IN HIS APPRECIATION FOR THE CONSTITUTION AND THE RULE OF LAW. AND HE HAD, AS HE OFTEN SAID, BUT IT’S TRUE IF YOU LOOK THROUGH HIS JURISPRUDENCE, DECISIONS WHERE HE RULED IN WAYS PEOPLE DID NOT EXPECT, PROTECTION OF THE FOURTH AMENDMENT, FOR EXAMPLE, THE THERMAL IMAGING CASE, THE JONES CASE ON GPS TRACKING, FIRST AMENDMENT TEXAS V. JOHNSON, HE HAD A DISSENT. HE WAS A FIERCE ALSO PROTECTOR OF INDIVIDUAL LIBERTY, EVEN IN A NATIONAL SECURITY CONTEXT. I LOOK BACK TO CHIEF JUSTICE REHNQUIST AND JUSTICE JACKSON, FOR WHOM CHIEF JUSTICE REHNQUIST CLERKED, AS TWO PEOPLE WITH EXPERIENCE IN THE EXECUTIVE BRANCH AND THEN CAME TO THE SUPREME COURT. I THINK BECAME MODELS OF INDEPENDENCE. JUSTICE JACKSON, OF COURSE, WITH HIS BEAUTIFUL PROSE IN CASES LIKE MARKET, KOREMATSU, YOUNGSTOWN. REHNQUIST I THINK THINK SUCH A FIRM BUT ALSO AFFABLE MANNER. I WROTE ABOUT REHNQUIST, I GAVE A SPEECH ABOUT HIM AND WROTE, I REFER TO THE FACT THE BRETHREN WAS THIS BOOK THAT CAME OUT IN THE LATE ’70s CRITICAL OF — THE SOURCES WERE CRITICAL OF THE SUPREME COURT. NOT SAYING THE AUTHORS WERE. OF SOME OF THE JUSTICES INDIVIDUALLY. BUT REHNQUIST IS REFERRED TO BY ALL OF THESE TERMS THROUGHOUT THAT EMPHASIZED HIS COLLEGIALITY. I THINK THAT’S WHY HE WAS SUCH A HERO. AND THEN I’LL END IT WITH, YOU KNOW, ANY TIME YOU LOOK AT THE CONSTITUTION AND YOU THINK ABOUT PEOPLE WHO HAVE HAD AN AFFECT ON IT AND WHAT IT MEANS TODAY, YOU HAVE TO IDENTIFY AND YOU SHOULD IDENTIFY THURGOOD MARSHALL BECAUSE OF WHAT HE DID AS A JUSTICE, BUT PERHAPS MORE HE HAD A HUGE RECORD AS A JUSTICE, THAT’S VERY IMPORTANT, AND HE WAS A REAL WORLD CONSEQUENCES PERSON. I LISTENED, I PULLED UP AN OLD ORAL ARGUMENT ONE TIME IN A FIRST AMENDMENT CASE THAT HE WAS ARGUING IN THE EARLY ’70s AND IT WAS ABOUT ADS ON THE BUS, ON THE INTERIOR OF A BUS. I GUESS IT WAS POLITICAL ADS ON THE INTERIOR OF A BUS. THE QUESTION WAS WHETHER THEY WERE PERMISSIBLE, AND THE FIRST AMENDMENT RIGHT TO RUN THESE ADS ON THE INTERIOR OF THE BUS. THE WORRY WAS THAT THEY WOULD BE IDENTIFIED, IT WOULD LOOK LIKE THE CITY WAS PUTTING ON A POLITICAL CANDIDATE. HE STARTED THE ORAL ARGUMENT, WHY? WHY? WHY ARE YOU BANNING THEM? PEOPLE MIGHT THINK THE CITY IS ENDORSING A POLITICAL CANDIDATE. HE SAID DO YOU THINK PEOPLE ARE THAT STUPID? AND IT JUST SHOWED HIS — HE GOT THE REAL-WORLD CONSEQUENCES IN A WAY THAT NO ONE ELSE — BUT OF COURSE HIS LEGACY IS TOWERING IN TERMS OF WHAT HE DID AS A LITIGATOR AND HELPED NOT SINGLE-HANDEDLY, BUT HE CERTAINLY HAD COLLEAGUES, BUT HE HELPED BRING THE END OF PLESSY V. FERGUSON AND ACHIEVED THE GREATEST MOMENT IN SUPREME COURT HISTORY IN BROWN V. BOARD. I THINK ABOUT THURGOOD MARSHALL’S LEGACY AS WELL. SO THAT’S A MUCH MORE LONG-WINDED ANSWER THAN YOU EXPECTED, SENATOR. I APPRECIATE YOU GIVING ME THE TIME. >>THAT’S IMPORTANT INSIGHT. APPRECIATE IT. I HAD THE OPPORTUNITY TO SIT NEXT TO ANTHONY KENNEDY LAST SATURDAY FOR JOHN McCAIN’S FUNERAL. I THINK ALL OF US HAVE THE SAME OPINION OF HIS COLLEGIALITY, FRIENDLINESS, AND THAT CERTAINLY IS IMPORTANT. WE WILL TALK ABOUT THAT A LITTLE LATER. I NOTED YESTERDAY SOME CONCERNS, BACK TO THE REAL WORLD HERE, ABOUT AN ADMINISTRATION THAT DOES NOT SEEM TO UNDERSTAND OR APPRECIATE A SEPARATION OF POWERS OR THE RULE OF LAW. I WORRY THAT THE PRESIDENT, THE HEAD OF OUR EXECUTIVE BRANCH, MAY BE USING EXECUTIVE POWER TO ADVANCE PERSONAL/POLITICAL INTERESTS. NOW MORE THAN EVER, I THINK WE HAVE TO ENSURE THAT OUR INSTITUTIONS ARE INDEPENDENT AND ARE FIRM AGAINST ENCROACHING PARTISAN POLITICKING. THERE IS NOWHERE IMPORTANT, OBVIOUSLY, THAN THE JUDICIARY. ALEXANDER HAMILTON FAMOUSLY WROTE IN FEDERALIST 78, THE 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 POLITICAL PASSIONS OF THE LEGISLATURE. I BELIEVE THAT IF YOU ARE CONFIRMED TO THE SUPREME COURT, I DON’T BELIEVE THAT YOU WOULD ERODE JUDICIAL INDEPENDENCE OR OTHERWISE DISRUPT THE SEPARATION OF POWERS BETWEEN THE THREE BRANCHES. YOU HAVE BEEN DISCUSSING YOUR REVERENCE FOR THE SEPARATION OF POWERS WITH US TODAY, PARTICULARLY THE IMPORTANCE OF KEEPING THE JUDICIARY THE LEAST DANGEROUS BRANCH BY MAKING SURE THAT IT STAYS APOLITICAL. I’LL DISCUSS THAT MORE IN A MOMENT. BUT SPECIFICALLY I AM A LITTLE CONCERNED ABOUT THE EXECUTIVE BRANCH AND THE POWERS THEREIN. I REITERATE SOME OF THE CONCERNS THAT SENATOR SASSE IDENTIFIED. YOU WALKED US THROUGH SOME OF THE FOUNDING DOCUMENTS, CONSTITUTION, FEDERALIST PAPERS, THE PRESIDENT WITH POSITIVE POWERS. YOU HAVE ALSO DISCUSSED TODAY CASES. YOU HAVE MENTIONED YOUNGSTOWN, U.S. VERSUS NIXON, THOSE THAT YOU ADMIRE BECAUSE THEY INVOLVED THE JUDICIARY STANDING UP TO THE PRESIDENT AND PUTTING LIMITS ON EXECUTIVE POWER. THESE PRECEDENTS CERTAINLY RESTRAIN PRESIDENTIAL POWER. BUT I’M CURIOUS WHAT LIMITS ARE THERE, IF ANY, THAT WOULD PREVENT A PRESIDENT FROM CENTRALIZING THE 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? CAN YOU TALK A LITTLE ABOUT THAT? WE TALKED ABOUT THE POSITIVE THINGS THAT GIVE A PRESIDENT OR ENDOW THE EXECUTIVE WITH POWER. WHAT CONSTRAINTS ARE THERE?>>FIRST, SENATOR, THERE ARE THE CONSTRAINTS BUILT INTO THE CONSTITUTION, WHICH THE APPROPRIATIONS POWER, THE SENATE CONFIRMATION POWER, WHICH IS OFTEN USED, AS YOU KNOW, OF COURSE AS A WAY TO RESTRAIN EXECUTIVE ACTION OR AT LEAST TO PREVENT THE — NOT ONLY TO PREVENT THE APPOINTMENT OF PEOPLE FOR PRINCIPAL EXECUTIVE OFFICERS WHO MIGHT BE THE — THE SENATE MIGHT NOT APPROVE, BUT ALSO SOMETIMES AS WAYS OF RESTRAINT. THERE ARE ALSO BUILT INTO THE CONSTITUTIONAL — THERE IS THE ULTIMATE REMEDIES IN THE CONSTITUTION FOR — THERE IS REMEDIES FOR HOW JUDGES CAN BE REMOVED, HOW MEMBERS OF CONGRESS CAN BE REMOVED THROUGH THE EXPULSION POWER, AND HOW PRESIDENTS CAN BE REMOVED. THOSE ARE BUILT IN. THOSE ARE THE ULTIMATE CHECKS BUILT INTO THE CONSTITUTIONAL SYSTEM FOR ALL OF US. THERE IS NO ONE WHO HAS, IS GUARANTEED A PERMANENT TIME BECAUSE OF THE ULTIMATE CHECKS THAT ARE IN FOR — IN THE CONSTITUTIONAL SYSTEM AS WELL. THERE ARE STATUTES THEN BEYOND THE CONSTITUTION, AND I DIDN’T MEAN THAT TO BE AN EXHAUSTIVE LIST, BUT THERE ARE INNUMERABLE STATUTES THAT REGULATE PRESIDENTIAL AND EXECUTIVE BRANCH CONDUCT IN ALL SORTS OF WAYS, WHETHER IT BE STATUTES THAT REGULATE WAR POWERS, SURVEILLANCE, DETENTION, INTERROGATION, THE WAR POWERS ACT. STATUTES THAT REGULATE IN THE DOMESTIC ARENA, STATUTES THAT REGULATE THE OPERATIONS OF GOVERNMENT, FREEDOM OF INFORMATION ACT, FEDERAL ADVISORY COMMITTEE ACT, INSPECTOR GENERAL’S ACT. THAT ALL ARE EFFORTS BY CONGRESS, AS I UNDERSTAND — AS HAS HISTORICALLY BEEN UNDERSTOOD TO MAKE SURE THE EXECUTIVE BRANCH DOES NOT OPERATE IN A WAY THAT CONGRESS DISAPPROVES OF. AND THERE ARE NORMS. NORMS ARE IMPORTANT. I THINK NORMS HISTORICAL PRACTICES, MADISON TALKS ABOUT THAT IN FEDERALIST 37. IT’S RELEVANT TO JUDICIAL DECISION-MAKING, AS WE HAVE SEEN A LOT OF JUDICIAL DECISIONS. WHEN I WORKED IN THE EXECUTIVE BRANCH, ONE OF THE QUESTIONS I ALWAYS ASKED, AND I ASK AS A JUDGE, IS HOW HAS THIS BEEN DONE BEFORE? I THINK THAT’S ALWAYS — TWO THINGS I TELL STUDENTS. TWO THINGS TO ASK YOURSELF. WHAT DOES THE TEXT A? REGULATION, CODE, STATUTE, CONSTITUTION, AND HOW HAS IT BEEN DONE BEFORE, A QUESTION OF PRECEDENT OR NORM WITHIN THE EXECUTIVE BRANCH OR NORMS WITHIN CONGRESS. THOSE ARE IMPORTANT AS WELL. SO I THINK THERE IS CONSTITUTIONAL AND STATUTORY STRUCTURES AS WELL AS CUSTOM OR NORMS THAT ALL CONSTRAIN CONGRESS AND CONSTRAIN THE EXECUTIVE BRANCH AND CONSTRAIN THE JUDICIARY, AS WELL. >>YOU DISCUSSED WITH SENATOR SASSE THE DANGER OF INDEPENDENT AGENCIES THAT AMASS TOO MUCH POWER IN ANY INDIVIDUAL. WOULD THAT NOT BE TRUE WITH THE EXECUTIVE AS WELL?>>THAT WAS THE DEBATE AT THE CONSTITUTIONAL CONVENTION, SENATOR, WAS WHETHER TO HAVE A PLURAL EXECUTIVE, IN OTHER WORDS MULTIMEMBER EXECUTIVE, OR TO HAVE A SINGLE PRESIDENT. ULTIMATELY, THE FRAMERS AT THE CONVENTION DECIDED TO GO WITH, WILSON AND MORRIS REALLY ARE THE ARCHITECTS OF THE PRESIDENCY OF THE CONVENTION, AND THEY ULTIMATELY CONVINCED THE OTHERS TO GO WITH A SINGLE PRESIDENT. AT THE SAME TIME, THE FEAR THAT YOU JUST DISCUSSED OR THE CONCERN IS A BETTER WAY TO PUT, YOU JUST DISCUSSED WAS CERTAINLY RAISED BY PEOPLE AT THE TIME, AND THAT’S WHY HAMILTON WROTE FEDERALIST 69. THAT’S WHY THEY PUT ALL THE CHECKS INTO THE CONSTITUTION AND WHY HAMILTON WROTE FEDERALIST 69 TO POINT OUT FOR THE PEOPLE WHO WERE VOTING ON RATIFICATION ALL THOSE DIFFERENCES BETWEEN THE KING AND MONARCHY. SO THAT FEAR HAS EXISTED THROUGHOUT AMERICAN HISTORY, I THINK, OF AN EXECUTIVE THAT’S UNCHECKED. AND IT’S WHY, FOR EXAMPLE, THE SUPREME COURT HAS BEEN WILLING — MAR BERRY IS ANOTHER CASE. PRESIDENT JEFFERSON, OF COURSE, IS TRYING — IS THE ONE WHO LOSES IN MARBERRY VERSUS MADISON. PRESIDENT TRUMAN LOSES IN YOUNGSTOWN. PRESIDENT NIXON LOSES IN UNITED STATES V. RICHARD NIXON. >>LET ME BRING IT TO TODAY. YOU MENTIONED A COUPLE OF TIMES THAT YOU LIVE IN THE REAL WORLD.>>I TRY, YES. >>THAT’S IMPORTANT FOR YOU A JUDGE. >>THIS WEEK THERE WAS A TWEET BY THE PRESIDENT THAT SAID, AND I MENTIONED THIS YESTERDAY, TOO LONG RUNNING OBAMA ERA INVESTIGATIONS OF TWO VERY REPUBLICAN CONGRESSMEN WERE BROUGHT TO A WELL PUBLICIZED CHARGE JUST AHEAD OF THE MIDTERMS BY THE JEFF SESSIONS JUSTICE DEPARTMENT. TOO EASY WINS NOW IN DOUBT BECAUSE THERE WAS NOT ENOUGH TIME — THERE IS NOT ENOUGH TIME. GOOD JOB, JEFF. SHOULD A PRESIDENT BE ABLE TO USE HIS AUTHORITY TO PRESSURE EXECUTIVE OR INDEPENDENT AGENCIES TO CARRYING OUT DIRECTIVES FOR PURELY POLITICAL PURPOSES?>>SENATOR, I UNDERSTAND THE QUESTION, BUT I THINK ONE OF THE PRINCIPLES OF JUDICIAL INDEPENDENCE THAT SITTING JUDGES, AND I AM A SITTING JUDGE, AND NOMINEES SITTING HERE NEED TO BE CAREFUL ABOUT IS COMMENTING ON CURRENT EVENTS OR POLITICAL CONTROVERSIES. I DON’T THINK WE WANT JUDGES COMMENTING ON THE LATEST POLITICAL CONTROVERSY BECAUSE THAT WOULD ULTIMATELY LEAD THE PEOPLE TO DOUBT WHETHER WE ARE INDEPENDENT OR WHETHER WE ARE A POLITICIAN IN A ROBE. MAINTAINING THAT STRICT INDEPENDENCE OF THE JUDICIARY REQUIRES ME, I THINK, TO AVOID COMMENTING ON ANY CURRENT EVENTS. >>ALL RIGHT. FORGET I JUST SAID THAT. >>I SAID I UNDERSTAND, BUT — >>NO. JUST ANSWER THIS QUESTION. SHOULD A PRESIDENT USE HIS OR HER AUTHORITY TO PRESSURE EXECUTIVE OR INDEPENDENT AGENCY OFFICIALS INTO CARRYING OUT DIRECTIVES FOR PURELY POLITICAL PURPOSES?>>SENATOR, I THINK THAT HYPOTHETICAL THAT YOU’RE ASKING IS DIRECTLY ANALOGOUS TO THE CURRENT EVENTS AND, THEREFORE, I HESITATE TO GET INTO IT. IT’S ALSO ME COMMENTING ON SOMETHING THAT’S NOT A CASE OR AN ISSUE OR SOMETHING I HAVE WRITTEN ABOUT, AND I JUST — I HAVE THOUGHT ABOUT THIS PRINCIPLE AS WELL IN LOOKING AT ALL THE NOMINEE PRECEDENT OF THE SUPREME COURT NOMINEES IN THE PAST, AND I THINK ABOUT CHIEF JUSTICE ROBERTS AND I THINK AN UNDERAPPRECIATED ASPECT IS HOW HE FERVENTLY STOOD UP FOR THE INDEPENDENCE OF THE JUDICIARY AND TRIED TO KEEP THE JUDICIARY OUT OF POLITICS BY WHAT HE DOES ON THE BENCH AS WELL AS OFF THE BENCH. HE SETS THE TONE FOR THE ENTIRE AMERICAN JUDICIARY, AND I THINK THAT TONE OF NOT GETTING US INVOLVED IN POLITICS MEANS I NEED TO STAY NOT JUST AWAY FROM THE LINE, BUT THREE ZIP CODES AWAY FROM THE LINE OF CURRENT EVENTS, POLITICS. I RESPECTFULLY — I UNDERSTAND, BUT I RESPECTFULLY DECLINE.>>WELL, LET ME REPHRASE. IF YOU HAVE AN EXECUTIVE WHO IS ABUSING HIS OR HER AUTHORITY BY INSTRUCTING INDEPENDENT AGENCIES OF GOVERNMENT TO USE OR TO PURSUE POLITICAL ENDS, ARE THERE ANY REMEDIES OTHER THAN THE ONE THAT YOU MENTIONED, POLITICAL REMEDY INVOLVING CONGRESS, OR IS THERE SOMETHING SHORT OF THAT? AND I UNDERSTAND YOUR AVERSION, AS MANY IN THIS BODY HAD, TO THE INDEPENDENT COUNSEL’S STATUTE THAT WE DID AWAY WITH. YOU EXPRESSED ABOUT THE SPECIAL COUNSEL. BUT WHAT OTHER REMEDIES ARE THERE? WHAT OTHER CONSTRAINTS ARE THERE ON A PRESIDENT?>>THE CONSTRAINTS ARE ON THE EXECUTIVE GENERALLY ARE IMPORTANT ONES. THE APPROPRIATIONS POWER IS A HUGE CHECK. THAT IS AN ENORMOUS CHECK IF EMPLOYED AS FULLY AS IT MIGHT BE. THE CONFIRMATION POWER OF EXECUTIVE BRANCH OFFICIALS, THE ULTIMATE CHECK, OF COURSE, THAT YOU REFERRED TO IS ALWAYS PART OF THE SYSTEM, AND THEN JUST TO BE CLEAR ON THE SPECIAL COUNSEL SYSTEM THAT I SPOKE APPROVINGLY OF IN THE 1999 LAW JOURNAL ARTICLE AND I REFERRED TO IN MY PHH OPINION LAST YEAR, THE TRADITIONAL SYSTEM, THAT EXISTS. AND THEN I HAVE SAID WHAT I SAID ABOUT THE OLD INDEPENDENT COUNSEL STATUTE, BUT THAT WAS A STATUTE THAT HAD A LOT OF PARTS TO IT. IF A CASE CAME BEFORE ME THAT HAD A DIFFERENT STATUTE THAT YOU HAD ENACTED OR THAT STATUTE, I WOULD HAVE AN OPEN MIND ABOUT CONSIDERING THE ARGUMENTS IN FAVOR OF THAT AND AGAINST IT, OF COURSE. SO THOSE ARE, YOU KNOW, THAT POSSIBILITY IS PRESENT TO THE CONGRESS, OF COURSE, IN GENERAL.>>BUT IF THE PRESIDENT COULD FIRE AN INDEPENDENT COUNSEL OR A SPECIAL COUNSEL, IS THAT ANY RESTRAINT AT ALL?>>SENATOR, HYPOTHETICAL WAS TESTED, I SUPPOSE, IN THE — SEPTEMBER OF 1973, IF I HAVE MY MONTH RIGHT. I MIGHT NOT HAVE MY MONTH RIGHT. IT MIGHT HAVE BEEN A DIFFERENT MONTH. BUT IN 1973. AND THE SYSTEM HELD.>>ALL RIGHT. THANK YOU. WE’LL MOVE ON AND MAYBE GET BACK TO THIS TOMORROW. A CONVERSATION YOU AND I HAD ABOUT SEPARATION OF POWERS LEADS TO A HOST OF OTHER RELATED LEGAL ISSUES, INCLUDING CHEVRON DEFERENCE, AGENCY OVERREGULATION. IN YOUR WRITTEN OPINIONS YOU SUGGESTED YOU HAVE CONCERNS OVER CHEVRON DEFERENCE. I SHARE THOSE CONCERNS. IT CAN ALLOW EXECUTIVE AGENCIES TO STRETCH THE MEANING OF THE LAW BEYOND WHAT CONGRESS INTENDED. I THINK WE HAVE CERTAINLY SEEN THAT. YOU ALSO ENCOURAGED CONGRESS, IT CAN ALSO ENCOURAGE CONGRESS TO ABDICATE ITS LEGISLATIVE POWER BY PUNTING ITS LAW MAKING RESPONSIBILITIES TO THE OTHER TWO BRANCHES. WE HAVE SPOKE AT LENGTH ABOUT THAT IN A CONVERSATION WITH SENATOR SASSE ABOUT OUR INABILITY IN CONGRESS TO LEGISLATE ON IMPORTANT ISSUES YOU WERE DISCUSSING WITH ANOTHER SENATOR, OUR FAILURE TO AUTHORIZE WAR. I HAVE HAD THAT FRUSTRATION FOR YEARS NOW MYSELF, AND SENATOR TIM KAINE AND OTHERS ARE TRYING TO UNSUCCESSFULLY EXPRESS CONGRESS’ OPINION AND PROVIDE SOME SORT OF TEMPLATE, IF NOTHING ELSE, FOR THE EXECUTIVE BRANCH TO FOLLOW IN TERMS OF THESE LONG UNAUTHORIZED WARS. BUT THAT ASIDE, YOUR OPINION SUGGESTS THAT A CHEVRON ANALYSIS IS A TWO-PART TEST. ONE DETERMINING IF THERE IS STATUTORY AMBIGUITY, AND IF SO DETERMINING WHETHER AN AGENCY’S INTERPRETATION OF THE STATUTE IS REASONABLE. THE REAL QUESTION IS NOT JUST WHETHER TO DEFER TO AN AGENCY, BUT RATHER HOW A JUDGE APPROACHES STATUTORY AMBIGUITIES. HOW DO YOU KNOW WHEN A STATUTE IS AMBIGUOUS?>>THAT’S A HUGE PROBLEM, SENATOR, AND I THINK THAT’S AT THE HEART OF THE CONCERN I HAVE ABOUT HOW CERTAIN CANONS OF STATUTORY INTERPRETATION HAVE BEEN APPLIED, INCLUDING CHEVRON, LEGISLATIVE HISTORY, CONSTITUTIONAL AVOIDANCE AS WELL. THEY 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 AFTER A PARTICULAR CASE? WHAT IS AT THE ROOT OF THAT DISAGREEMENT, BECAUSE WE ARE BOTH INDEPENDENT JUDGES AND WHY ARE WE DISAGREEING? IT OCCURRED TO ME IN SOME CASES THAT THE DISAGREEMENT IS NOT ABOUT THE BEST MEANING OF THE STATUTE OR WHAT THE PRECEDENT SAYS. THE DISAGREEMENTS ABOUT WHETHER SOMETHING IS AMBIGUOUS. THEN I WOULD THINK ABOUT GOING TO THE JUDGE’S UMPIRE VISION THAT I BELIEVE IN. HOW COULD WE GET NEUTRAL PRINCIPLES FOR DETERMINING AMBIGUITY? AND IT TURNS OUT IT’S REALLY HARD TO GET NEUTRAL PRINCIPLES FOR HOW MUCH AMBIGUITY IS ENOUGH. TWO PROBLEMS AT THE HEART OF THAT. FIRST OF ALL, JUST TO TRY TO REASON THROUGH THIS, IS 60% AMBIGUITY ENOUGH OR 80% OR 95% AMBIGUITY? WHERE IS YOUR AMBIGUITY TRIGGER, SO TO SPEAK? SECOND MUCH ALL, WHEN APPLYING WHATEVER TRIGGER YOU COME UP WITH, HOW THE HECK DO YOU FIGURE OUT WHETHER A PARTICULAR WORD OR PHRASE OR STATUTORY PROVISIONS CROSSES THAT AMBIGUITY THRESHOLD? THIS IS SOMETHING THAT JUSTICE KAGAN AND JUSTICE SCALIA HAVE TALKED ABOUT IN THE PAST. JUSTICE KAGAN ACTUALLY SAID AT THAT SAME SPEECH WHERE SHE SAID WE’RE ALL TEXTUALISTS, SHE SAID SOME PEOPLE FIND AMBIGUITY MORE QUICKLY THAN OTHERS DO, WHICH I THINK IS A TRUE STATEMENT, OBSERVATION OF HUMAN NATURE, BUT LEAVES A JUDGE’S UMPIRE STANCE IN TROUBLE. IF THERE ARE NO PRINCIPLES TO DETERMINE AMBIGUITY — THIS IS NOT A MINOR DEAL. SO IF YOU’RE IN A CASE ABOUT DEFERENCE TO AN AGENCY, THE FATE OF HUGE REGULATIONS, SO TO GIVE YOU THE EXAMPLE. THREE JUDGES COULD BE SITTING AROUND AFTER ORAL ARGUMENT AND ALL THREE COULD AGREE, ACTUALLY THE AGENCY’S READING OF THE STATUTE STATUTE IS NOT THE BEST READING OF THE STATUTE GIVEN THE WORDS, BUT TWO JUDGES WILL SAY, I THINK IT’S AMBIGUOUS. THE THIRD ONE SAYS I DON’T THINK IT’S AMBIGUOUS. SO THE TWO WHETHER DEFER TO THE AGENCY. NO, IT’S NOT THE BEST READING OF THE STATUTE. THAT COULD BE $1 BILLION DECISION RIGHT THERE. FATE OF HUGE REGULATIONS, RISE OR FALL JUST ON THAT. ONE JUDGE WILL SAY I THINK IT’S NOT AMBIGUOUS. WELL, I THINK IT IS. AND THERE IS NOT A GREAT, IN MY EXPERIENCE, SITTING IN THOSE CONFERENCE ROOMS, A GREAT NEUTRAL PRINCIPLE. TO MY MIND, THAT’S A CONCERN IF YOU HAVE, AS I DO, THE IDEA THAT JUDGES TO SHOULD BE UMPIRES AND WE SHOULD HAVE NEUTRAL RULES OF THE ROAD. I EXPLAIN THAT IN THAT HARVARD ARTICLE. I KNOW YOU AND I TALKED ABOUT THAT AS WELL. >>LET’S TALK ABOUT STARE DECISIS PRECEDENT. YOU TALKED A LITTLE BIT ABOUT, I THINK WITH SENATOR LEE, ABOUT 5-4 DECISIONS. THEY HAVE THE SAME WEIGHT, SAME PRECEDENT AS THOSE DECIDED UNANIMOUSLY. KILO 2005, A 5-4 DECISION. OBVIOUSLY, CONCERNING THE GOVERNMENT’S ABILITY TO SEIZE PROPERTY FOR ECONOMIC PURPOSES. THOSE OF US IN THE WEST VERY CONCERNED ABOUT ISSUES LIKE THIS. ARIZONA, FOR EXAMPLE, IS 85% PUBLICLY OWNED. YOU TAKE STATE, FEDERAL, TRIBAL PROPERTY, ONLY 15% OF THE STATE IS IN PRIVATE HANDS. SO DECISIONS THAT THE FEDERAL GOVERNMENT MAKES WHETHER IT’S THE LEGISLATIVE BRANCH, EXECUTIVE AGENCIES OR THE JUDICIARY HAS AN OUTSIZED IMPACT ON A STATE LIKE ARIZONA. JUDGE GORSUCH COMING FROM THE WEST IS FAMILIAR WITH MANY OF THOSE ISSUES. YOU SERVING ON THE D.C. CIRCUIT HAVE ADDRESSED THESE ISSUES MORE THAN PERHAPS OTHERS. DO YOU WANT TO TALK A LITTLE ABOUT THAT, ABOUT SOME OF THE WESTERN ISSUES OR THESE ISSUES? AND KILO IN PARTICULAR. THAT’S A BIG CONCERN OUT WEST. >>I THINK IT WAS SOMETHING THAT WAS CONTROVERSIAL IN THE EAST, TOO, IN THE MIDWEST. IT’S A SPECIAL CONCERN IN THE WEST AS WELL. IT IS A PRECEDENT OF THE KORT. TO YOUR POINT, I HAVE HAD CASES INVOLVING REGULATIONS. A COUPLE OF EXAMPLES, ONE WHERE A CRITICAL HABITAT DESIGNATION BASED ON A FAIRY SHRIMP FOUND ON A PROPERTY, OTAY MESA CASE, AND I WROTE IN THAT CASE THAT THE STATUTORY TERM WAS OCCUPIED AND THE FACT THAT YOU COULDN’T SEE IT TO THE NAKED EYE, THE FAIRY SHRIMP HAD BEEN IN A RUT THREE YEARS EARLIER, WAS NOT ENOUGH TO DESIGNATE A HUGE SWATH –>>YOU SAID IT WAS THE SIZE OF AN ANT OR SOMETHING?>>I DID, YES, SENATOR. SO I HAD THAT CASE. THERE I WAS APPLYING THE STATUTE AS I SAW IT. WAYS TRYING TO DO — I HAD ANOTHER CASE, CARPENTERS CASE IT WAS CALLED. IT WAS ANOTHER DESIGNATION OF LAND IN THE WEST. THE ISSUE INVOLVED STANDING OF SOMEONE WHO WAS DEPRIVED OF THEIR BUSINESS BECAUSE OF THE DESIGNATION. I FOUND STANDING BECAUSE I THINK IT’S IMPORTANT TO UNDERSTAND THAT WHEN SOMETHING LIKE THAT HAPPENS, THERE ARE LOTS OF AFFECTED PARTIES. I HAVE TALKED ABOUT THIS IN OTHER CASES LIKE MY MINGO LOGAN CASE. WHEN THE GOVERNMENT REGULATION — THE POLICY IS NOT MY CONCERN, BUT IN ASSESSING STANDING, FOR EXAMPLE, OR RETROACTIVITY, WHICH WAS ANOTHER CASE I HAD, YOU NEED TO THINK ABOUT THE AFFECTED PARTIES. SO BUSINESSES, WORKERS, THE COAL MINERS IN THE MINGO LOGAN CASE OR THE PEOPLE IN THE LUMBER, THE TIMBER INDUSTRY IN THE CARPENTERS CASE. BUT I ALSO AM SYMPATHETIC TO THE FACT THAT WESTERNERS DON’T THINK PEOPLE IN THE EAST ALWAYS UNDERSTAND WHAT’S GOING ON WITH THOSE DESIGNATIONS. >>NOT EVEN REMOTELY. >>YEAH, NOT EVEN REMOTELY. I GRANT YOU THAT. I TRIED TO PUT OUT SOMETHING IN MY OPINION. I SAID FOR EASTERNERS READING THIS OPINION, THIS IS IN THE SECOND PARAGRAPH, FOR EASTERNERS READING THIS OPINION, THE SIZE OF THIS DESIGNATION IS TWICE THE SIZE OF THE STATE OF NEW JERSEY. AND I SAID, SO IF YOU ARE AN EASTERNER IMAGINE DRIVING UP THE NEW JERSEY TURNPIKE AND ALL THE WAY BACK DOWN IT AND YOU WILL HAVE SOME SENSE OF WHAT IT WOULD TAKE TO DRIVE ACROSS THIS DESIGNATION OF LAND, WHICH WAS MY WAY OF SAYING, TRYING TO APPRECIATE THE EFFECT OF SOME OF THESE THINGS IN THE WEST. >>GETTING BACK TO PRECEDENT, YOU KNOW, WHEN YOU ARE NOT ON THE SUPREME COURT, IF YOU ARE IN ONE OF THE LOWER COURTS, YOU ALWAYS LOOK TO THE SUPREME COURT. AND THOSE PRECEDENTs ARE OF EQUAL WEIGHT, ANY DECISION THAT’S MADE. WHEN YOU ARE ON THE SUPREME COURT, PRECEDENT IS ONLY PRECEDENT UNTIL IT’S NOT PRECEDENT ANYMORE, UNTIL THERE IS A DECISION MADE. MY QUESTION, I GUESS, IS WHAT A DECISION LIKE KELO, DECIDED IN 2005, 5-4 DECISION. DOES TO HAVE THE SAME WEIGHT AS, SAY, TEXAS V. JOHNSON DECIDED IN 1989 ON THE FLAG-BURNING ISSUE? WHAT WEIGHT DO YOU GIVE IT ONCE YOU ARE ON THE HIGH COURT?>>I THINK YOU START WITH PRINCIPLES THAT THE SUPREME COURT ITSELF HAS ARTICULATED ABOUT PRECEDENT. THOSE PRINCIPLES LOOK AT, OF COURSE, WHETHER THE DECISION IS WRONG, GRIEVOUSLY WRONG. WHETHER THE DECISION IS INCONSISTENT, DEEPLY INCONSISTENT WITH OTHER LEGAL PRINCIPLES THAT HAVE DEVELOPED AROUND IT. YOU LOOK AT THE REAL-WORLD CONSEQUENCES, TO YOUR POINT. THE WORKABILITY IN REAL-WORLD CONSEQUENCES. ALSO THE RELIANCE INTERESTS. THOSE ARE VERY IMPORTANT THE SUPREME COURT HAS SAID. ONE OF THE THINGS ITEM ‘SAY ABOUT — I’LL SAY ABOUT KELO, A LOT OF STATES IN THE WAKE OF KELO HAVE ENACTED OR STATE SKI RESORTS HAVE TAKICS OF PRIVATE PROPERTY FOR WHAT APPEARS TO NOT BE THE TRADITIONAL PUBLIC USES BUT GOING TO ECONOMIC DEVELOPMENT FOR PRIVATE PARTIES. I THINK I HAVE CITED THIS BEFORE, JUDGE SUTTON TO THE SIXTH CIRCUIT, HIS BOOK 57 IMPERFECT SOLUTIONS IS A GREAT BOOK ABOUT HOW STATE CONSTITUTIONS AND STATE CRUCIAL LAW AND STATE STATUTES CAN ENHANCE PROTECTION OF INDIVIDUAL LIBERTY BEYOND WHAT THE SUPREME COURT HAS INTERPRETED THE FEDERAL CONSTITUTION TO BE. THAT’S NOT A DIRECT ANSWER TO YOUR QUESTION. IT IS ANOTHER WAY THAT THE PEOPLE AFFECTED CAN — WHO ARE UPSET ABOUT THAT KIND OF LAND USE DESIGNATION CAN FIND PROTECTION. >>THANK YOU. >>SENATOR. >>THANK YOU, MR. CHAIRMAN. I HAVE SOME LETTERS OF OPPOSITION TO JUDGE KAVANAUGH’S NOMINATION. THESE ARE LETTERS FROM LAND LEGAL AND 63 NATIONAL STATE AND LOCAL LBGT GROUPS FROM EARTH JUSTICE, FROM MUSLIM ADVOCATES, FROM 63 WOMEN LAWYERS AND SUPPORTERS OF HEALTH, SECULAR COALITION FOR AMERICA, AND FROM ASIA-PACIFIC AMERICAN ADVOCATES. I ASK UNANIMOUS CONSENT TO ENTER THESE LETTERS INTO THE RECORD. >>WITHOUT OBJECTION. >>THANK YOU. >>JUDGE KAVANAUGH, CHIEF JUSTICE JOHN ROBERTS HAS RECOGNIZED THAT, QUOTE, THE JUDICIAL BRANCH IS NOT IMMUNIZED, END QUOTE FROM WIDESPREAD PROBLEM OF SEXUAL HARASSMENT AND ASSAULT AND HAS TAKEN STEPS TO ADDRESS THIS ISSUE AS PART OF MY RESPONSIBILITY AS A MEMBER OF THIS COMMITTEE TO ENSURE THE FITNESS OF NOMINEES NOR A LIFETIME APPOINTMENT TO THE FEDERAL BENCH I ASK EACH NOMINEE TWO QUESTIONS. FIRST QUESTION FOR YOU. SINCE YOU BECAME A LEGAL 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 FACED DISCIPLINE OR ENTERED INTO A SETTLEMENT RELATED TO THIS KIND OF CONDUCT?>>NO. >>I STARTED ASKING THESE QUESTIONS ABOUT SEXUAL HARASSMENT BECAUSE IT’S SO HARD TO HOLD LIFETIME APPOINTEES TO THE FEDERAL BENCH ACCOUNTABLE, AND BECAUSE I DID NOT WANT THE #METOO MOVEMENT TO BE SWEPT UNDER THE RUG. SENATOR HATCH ASKED YOU SOME QUESTIONS ABOUT THIS. I HAVE SOME ADDITIONAL QUESTIONS FOR YOU. LAST DECEMBER 15 BRAVE WOMEN SHARED THEIR STORIES OF SEXUAL HARASSMENT AND ASSAULT BY FORMER JUDGE ALEX KACZYNSKI. SOME ARE DETAILED ON THE CHART BEHIND ME. VERY EXPLICIT ALLEGATIONS OF SEXUAL HARASSMENT AND ASSAULT. WE KNOW FROM THE REPORTING THAT THE JUDGE’S BEHAVIOR WAS EGREGIOUS AND PERVASIVE. IT WENT ON FOR MORE THAN 30 YEARS. IT AFFECTED LAW CLERKS, PROFESSORS, LAW STUDENTS, LAWYERS AND IN ONE CASE EVEN ANOTHER FEDERAL JUDGE. AND THOSE ARE JUST THE WOMEN WHO CAME FORWARD. THE JUDGE’S BEHAVIOR WAS SO NOTORIOUS THAT PROFESSORS BEGAN TO WARN FEMALE STUDENTS NOT TO APPLY FOR CLERKSHIPS WITH THEM. JUDGE KACZYNSKI’S BEHAVIOR IN THIS REGARD WAS AN OPEN SECRET. A SHORT TIME AFTER THE ACCUSERS WENT PUBLIC, THE JUDGE ABRUPTLY RESIGNED WHICH SHUT DOWN THE FEDERAL INVESTIGATION INTO HIS MISCONDUCT. I DO NOT THINK THIS WAS A COINCIDENCE. AND IN 2008, IN CONNECTION WITH ANOTHER INVESTIGATION INTO THE JUDGE, “THE L.A. TIMES” WROTE A STORY ABOUT SOMETHING CALLED THE EASY RIDER GAG LIST, AN EMAIL GROUP THAT THE JUDGE USED TO SEND WHAT THE TIMES REPORTED WAS, QUOTE, A STEADY DIET OF TASTELESS HUMOR, END QUOTE. THE REPORT DESCRIBES THE LIST MADE UP OF FRIENDS AND ASSOCIATES, INCLUDING HIS LAW CLERKS, COLLEAGUES ON THE FEDERAL BENCH, PROMINENT ATTORNEYS, AND GENERALLYISTS. SENATOR HATCH ASKED YOU IF YOU WERE ON THIS EASY RIDER GAG LIST WHERE JUDGE KOZINSKI WOULD SEND INAPPROPRIATE MATERIALS. YOUR RESPONSE WAS THAT YOU DON’T REMEMBER ANYTHING LIKE THAT. ARE YOU TELLING US THAT YOU MAY HAVE RECEIVED A STEADY DIET OF WHAT PEOPLE ON THE LIST HAVE DESCRIBED AS, QUOTE, A LOT OF VULGAR JOKES, VERY DIRTY JOKES, BUT YOU DON’T REMEMBER IT?>>NO. I DON’T REMEMBER ANYTHING LIKE THAT, AND I’M NOT — >>SO THE ANSWER IS NO. >>WELL — >>HAVE YOU EVER. >>IF I COULD ELABORATE?>>I THINK THAT’S A COMPLETE ANSWER. HAVE YOU RECEIVED SEXUALLY EXPLICIT EMAILS FROM JUDGE KOZINSKI EVEN IF YOU DON’T REMEMBER YOU WERE ON THIS GAG LIST OR NOT?>>SENATOR, LET ME START WITH NO WOMAN SHOULD BE SUBJECTED TO SEXUAL HARASSMENT IN THE WORKPLACE — >>JUDGE KAVANAUGH, YOU WENT THROUGH ALL OF THAT AND I WILL GET TO YOUR PERSPECTIVE ABOUT MAKING SURE THAT WOMEN IN THE JUDICIARY DO NOT GET SEXUALLY HARASSED. DURING AND AFTERNOON YOUR CLERKSHIP WITH JUDGE KOZINSKI, DID YOU WITNESS OR HEAR OF ALLEGATIONS OF ANY INAPPROPRIATE BEHAVIOR OR CONDUCT THAT COULD BE DESCRIBED AS SEXUAL HARASSMENT BY JUDGE KOZINSKI?>>NO, SENATOR. THERE WERE TEN — I WORKED IN WASHINGTON, D.C. THERE WERE TEN JUDGES IN THE COURTHOUSE WITH HIM IN PASADENA. PROMINENT FEDERAL JUDGES IN THE COURTHOUSE WITH HIM. WE WORKED SIDE BY SIDE WITH HIM DAY AFTER DAY WHILE HE WAS CHIEF JUDGE IN THE NINTH CIRCUIT. >>TO BE CLEAR, WHILE THIS BEHAVIOR ON THE PART JUDGE KOZINSKI WAS GOING ON 30 YEARS, WAS AN OPEN SECRET U SAW NOTHING, HEARD NOTHING, AND OBVIOUSLY SAID NOTHING. JUDGE KAVANAUGH, DO YOU BELIEVE THE WOMEN WHO CAME FORWARD TO ACCUSE JUDGE KOZINSKI OF THIS KIND OF BEHAVIOR?>>I HAVE NO REASON NOT TO BELIEVE THEM, SENATOR. >>SO, YOU KNOW, LET ME JUST PUT THIS INTO A CONTEXT BECAUSE YOU HAVE TESTIFIED THAT YOU BASICALLY SAW NO EVIDENCE OF THIS KIND OF BEHAVIOR AT ALL, YOU NEVER HEARD OF IT, YOU WORKED WITH CLOSELY WITH HIM ON A NUMBER OF PROJECTS. YOU KEPT IN TOUCH WITH HIM WHILE IN THE WHITE HOUSE. HE INTRODUCED YOU TO THE SENATE IN YOUR 2006 NOMINATION HEARING AND HE CALLED YOU HIS GOOD FRIEND. YESTERDAY, YOU CALLED EACH OF THE PEOPLE WHO INTRODUCED YOU A FRIEND AND I PRESUME YOU FELT THAT WAY ABOUT JUDGE KOZINSKI WHEN HE SBROE DUCED YOU IN 2006. YOU JOINED HIM FOR PANELS AT THE FEDERALIST SOCIETY WHERE YOU PATTED HIM ON THE SHOULDER AND SAID, I LEARNED FROM THE MASTER ABOUT HIRING CLERKS. AND I BELIEVE I HAVE A PHOTO OF THAT. JUDGE KOZINSKI. YOU ARE A MENTOR TO WOMEN, 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 A JUDGE WAS AWARE THAT ANOTHER JUDGE WAS ENGAGING IN SEXUAL HARASSMENT OR SEXUAL ASSAULT, WOULD THE JUDGE HAVE A DUTY TO REPORT IT?>>AND I HEARD THOSE ALLEGATIONS, SENATOR, I WOULD HAVE DONE THREE THINGS IMMEDIATELY. I WOULD HAVE CALLED JUDGE TOM GRIFFITH ON OUR COURT, ON THE CODES OF CONDUCT COMMITTEE. I WOULD HAVE CALLED CHIEF JUDGE GARLAND, CHAIR OF THE EXECUTIVE COMMITTEE. I WOULD HAVE CALLED JIM DUFF, HEAD OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS. IF FOR ANY REASON I WAS NOT SATISFIED WITH THAT, I WOULD HAVE CALLED CHIEF JUSTICE ROBERTS DIRECTLY AND SAID — >>YOU BELIEVE THAT ALL JUDGES, INCLUDING YOURSELF, IF YOU EVER HEARD OR — ANY ALLEGATIONS ABOUT THESE KINDS OF BEHAVIORS, YOU WOULD REPORT IT, GO THROUGH WHATEVER PROCESSES WERE SET UP BY THE COURTS –>>I WOULD DO THAT — >>TO PREVENT THIS BEHAVIOR AND HOLD PEOPLE ACCOUNTABLE, AND YET, YOU KNOW, SOMEONE THAT YOU HAVE BEEN CLOSE TO THAT YOU CLERKED — AND I DID GO THROUGH THE VARIOUS ENCOUNTERS, MORE THAN ENCOUNTERS THAT YOU HAD WITH JUDGE KOZINSKI AND YET YOU HEARD NOTHING, SAW NOTHING, AND OBVIOUSLY YOU DID NOT SAY ANYTHING. SO LET ME JUST MENTION THAT THIS IS WHY THE #METOO MOVEMENT IS SO IMPORTANT BECAUSE OFTEN IN THESE KINDS OF SITUATIONS WHERE THERE ARE POWER ISSUES INVOLVED, AND CERTAINLY THERE ARE BETWEEN JUDGES AND CLERKS, THAT OFTEN, YOU KNOW, IT’S AN ENVIRONMENT WHERE PEOPLE SEE NOTHING, HEAR NOTHING, SAY ANYTHING. THAT’S WHAT WE HAVE TO CHANGE. >>I AGREE WITH YOU, SENATOR. I AGREE COMPLETELY. THERE NEED TO BE BETTER REPORTING MECHANISMS. WOMEN WHO ARE THE VICTIMS OF SEXUAL HARASSMENT NEED TO KNOW WHO THEY CAN CALL, WHEN THEY CAN CALL. THEY NEED TO KNOW FIRST — >>JUDGE KAVANAUGH, PERHAPS IF ALL OF THOSE SITUATIONS OR PROCESSES HAD BEEN IN PLACE OVER THE 30 YEARS THAT JUDGE KOZINSKI WAS ENGAGING IN THIS KIND OF BEHAVIOR, MAYBE HE WOULD HAVE STOPPED, BUT HE DID NOT. I HAVE ONE MORE QUESTION, JUDGE KAVANAUGH. WERE YOU AWARE OF THE SERIOUS ALLEGATIONS OF DOMESTIC VIOLENCE AGAINST ROB 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 PREMISE BEING THAT HE ENGAGED IN DOMESTIC ABUSE?>>NO, NO. THE RECOMMENDATION PREMISE. THAT ASIDE, NO, I WAS NOT AWARE OF THOSE ALLEGATIONS UNTIL THAT BECAME PUBLIC. WHEN THERE WAS THE NEWS REPORTS ABOUT THEM. >>LET ME TURN TO ANOTHER SET OF QUESTIONS THAT I HAVE FOR YOU. IN 1999, YOU JOINED ROBERT BORK IN WRITING AN AMICUS BRIEF IN SUPPORTING THE HERALD WHO CHALLENGED THE STRUCTURE FOR HAWAII AFFAIRS, WORKING FOR THE BETTERMENT OF. YOU ARGUE THAT HAWAII COULD NOT LIMIT THOSE WHO VOTED FOR THE OFFICE’S TRUSTEE ONLY NATIVE HAWAIIANS. YOU MADE THIS ARGUMENT IN A LEGAL BRIEF AND PUBLISHED AN OPINION PIECE IN “THE WALL STREET JOURNAL” UNDER YOUR OWN NAME ENTITLED, QUOTE, ARE HAWAIIANS INDIANS? YOU WROTE, THE NATIVE HAWAIIAN COMMUNITY WAS NOT INDIGENOUS BECAUSE, AFTER ALL, THEY CAME FROM POLYNESIA. IT MIGHT INTEREST YOU TO KNOW THAT HAWAII IS PART OF POLYNESIA. SO IT’S NOT THAT THEY CAME FROM POLYNESIA. THEY WERE A PART OF POLYNESIA. HAWAII IS PARTTHEY CAME FROM POLYNESIA BUT THEY WERE PART POLYNESIA. WHY A IS PART OF POLYNESIA IN. NATIVE HAWAIIANS DO NOT COME FROM POLYNESIA BUT THEY ARE A PART OF IT. WE ARE NOT ENTITLED TO CONSTITUTIONAL PROTECTIONS GIVEN TO INDIGENOUS AMERICANS BECAUSE AND I QUOTE YOU, THEY DON’T HAVE THEIR OWN GOVERNMENT. THEY DON’T HAVE THEIR OWN LEADERS. THEY DON’T HAVE — THEY DON’T LIVE ON RESERVATIONS OR THEY DON’T EVEN LIVE TOGETHER IN HAWAII. LET ME TELL YOU WHY EACH OF THESE ASSERTIONS ARE WRONG BUT IT IS THE BASIS ON WHICH YOU DETERMINE THAT THE ELECTIONS WERE UNCONSTITUTIONAL. >>THE SUPREME COURT AGREED.>> THEY DID NOT AGREE BASED ON THE ARGUMENT. LET ME GO ON. TO SAY THERE IS NO SYSTEM OF LAW AS AN INSULT TO SOCIETY THAT EVOLVED OVER CENTURIES AND BEFORE THE CREATION OF THE UNITED STATES. TO SAY THEY DON’T HAVE THEIR OWN LEADERS IN A HISTORICAL SENSE BETRAYS YOUR IGNORANCE OF NATIVE HAWAIIANS. FOR 1000 YEARS PRIOR TO THE DISCOVERY BY CAPTAIN COOK YOU SAID THEY DON’T LIVE ON THE RESERVATIONS OR IN TERRITORIAL ENCLAVES OR DON’T LIVE TOGETHER IN HAWAII. IT IS HARD TO KNOW WHAT TO SAY TO THIS. IT SOUNDS LIKE YOU ARE SAYING THAT THEY HAVE THE RIGHT TO BE CHEATED OUT OF THEIR LAND OR SURRENDER THEIR RIGHTS WHEN THEY MOVE OUTSIDE OF THE ARTIFICIAL BOUNDARIES BUT IT IS NOT ONLY FACTUALLY WRONG BUT ALSO VERY OFFENSIVE. IT IS HARD TO BELIEVE THAT YOU SPENT ANY TIME RESEARCHING THE HISTORY OF NATIVE HAWAIIANS. I AM GOING TO REFER TO AN EMAIL .>>MAY I RESPOND? >>I WANTED TO GET TO MY QUESTION.>>OKAY.>>YOU SENT OUT AN EMAIL IN 2000 TO IMPART, ANY PROGRAMS TARGETING NATIVE HAWAIIANS IS SUBJECT TO STRICT SCRUTINY AND OF QUESTIONABLE VALIDITY UNDER THE CONSTITUTION. YOU SENT THIS OUT AFTER THE DECISION WAS MADE BY THE SUPREME COURT WHEN YOU READ THE EMAIL SAYING THAT ALL THE PROGRAMS SHE UNDERGO — SHOULD UNDERGO STRICT SCRUTINY WERE YOU LOOKING TO WRITE IT AS A BASIS? >>SENATOR, FIRST OF ALL, I APPRECIATE YOUR PERSPECTIVE. IN THE BRIEF I WROTE THE SUPREME COURT AGREED. IN THAT DECISION, IN THE CASE, JUST SO I AM CLEAR IT WAS A STATE OFFICE THAT DENIED AFRICAN- AMERICANS THE ABILITY TO FOR THAT STATE OFFICE, LATINAS AND OTHER PEOPLE WERE DENIED THE ABILITY TO VOTE FOR THE STATE OFFICE AND THE QUESTION WAS WHETHER THAT WAS PERMISSIBLE UNDER THE CONSTITUTION AND THE SUPREME COURT.>>I ATTENDED THAT HEARING. I BELIEVE THAT ONE OF THE REASONS THEY KEPT ASKING ABOUT HER TRYING TO FIGURE OUT WHETHER THEY CONSTITUTE TRIBES IS PROBABLY BECAUSE OF WHAT YOU PUT IN THERE. LET ME GO ON. YOU DID NOT ANSWER MY QUESTION. WHETHER OR NOT YOU SAID THAT ANY PROGRAM TARGETING NATIVE HAWAIIANS AS A GROUP A OBJECT TO STRICT SCRUTINY UNDER THE CONSTITUTION PICK WHERE YOU THINKING ABOUT THE DECISION WHICH YOU CONTINUED TO SAY OR WHERE YOU THINKING ABOUT THE DECISION WHEN YOU MADE THIS VIEW? >>THAT IS AN EMAIL 16 YEARS AGO. I DON’T RECALL WHAT I WAS THINKING ABOUT.>>IT WAS RIGHT AFTER THE DECISION. 2002. LET ME ASK YOU THIS. DO YOU THINK THEY RAISES CONSTITUTIONAL QUESTIONS WHEN CONGRESS, NOT THE STATE, RICE WAS A STATE ACTION STATE. THE 16th AMENDMENT. IT HAD NOTHING TO DO WITH THE VOTING RIGHTS. DO YOU THINK THEY MADE THE CONSTITUTIONAL LAW TO BENEFIT NATIVE HAWAIIANS PICK >>I THINK CONGRESS HAS POWER WITH RESPECT TO AN ISSUE LIKE THAT IS SUBSTANTIAL. I DON’T WANT TO RECOMMIT TO ANY PARTICULAR PROGRAM BUT I UNDERSTAND THE CONGRESS IS SUBSTANTIAL PANEL — POWER WITH RESPECT TO DECLARING AND RECOGNIZING TRIBES.>>DO YOU BELIEVE THAT ANY OF THESE KIND OF PROGRAMS BY CONGRESS SHOULD UNDERGO STRICT SCRUTINY >>I WOULD LISTEN TO ARGUMENTS USED — FROM 16 YEARS AGO AND I AM WORKING IN THE ADMINISTRATION AND THE EXECUTIVE BRANCH AND PUTTING FORTH THE POSITION THERE BUT IF I WERE A JUDGE I WOULD LISTEN TO THE ARGUMENT THAT CONGRESS HAS SUBSTANTIAL POWER WITH RESPECT TO THE PROGRAMS LIKE THIS AND I APPRECIATE WHAT YOU SAID ABOUT NATIVE HAWAIIANS AND SPECIFICALLY IT WAS ABOUT AN ELECTION TO A STATE OFFICE.>>I AM WELL AWARE OF THE PIECES IN WHICH THE SUPREME COURT MADE THE DECISION. IT IS CITED FOR THE PROPOSITION THAT LAWS HAVE BENEFITED NATION — NATIVE HAWAIIANS ARE UNCONSTITUTIONAL BECAUSE THEY ARE RACE BASED. DO YOU THINK HE CAN BE CITED FOR THAT VIEW KNOWING THAT IT IS A STATE ACTION CASE? I KNOW THIS. THEY ARE CITED FOR THE PROPOSITION THAT ALL NATIVE HAWAIIAN PROGRAMS ENACTED BY CONGRESS CAN BE CHALLENGED AS UNCONSTITUTIONAL. I AM ASKING YOU IF THAT IS APPROPRIATE? I THINK CONGRESS HAS SUBSTANTIAL POWER IN THIS AREA THAT YOU ARE DISCUSSION — DISCUSSING AND I WILL WANT TO HEAR MORE ABOUT HOW THE SUPPLY AND THE ARGUMENTS ON BOTH SIDES. I WILL KEEP AN OPEN MIND AND I APPRECIATE YOUR PERSPECTIVE.>> WHEN THE SUPREME COURT KEEPS AN OPEN MIND, ONE WOULD HOPE THAT THE ADVOCATES WOULD ACTUALLY PROFFER FAX TO THE COURT AND THAT IS NOT WHAT YOU DID WHEN YOU FILED TO THE COURT. I THINK WE HAVE A PROBLEM. THE VIEW IS THAT NATIVE HAWAIIANS DON’T NEED THE UPPER — PROTECTIONS UNDER THE CONSTITUTION AND THE ARGUMENT RAISES A SERIOUS IT — QUESTION ABOUT THE CONSTITUTIONALITY OF ALASKAN NATIVES. I THINK THEY SHOULD BE DEEPLY TROUBLED BY YOUR PEERS. IN YOUR ARTICLE YOU DID NOT MENTION ONE WORD ABOUT ALASKAN NATIVES. IT COULD BE BECAUSE THERE IS NO CLAUSE REFERENCED TO ALASKAN NATIVES AS THERE IS FOR AMERICAN INDIANS. I WANT TO WANT TO ANOTHER SET OF QUESTIONS BECAUSE I AM RUNNING OUT OF TIME. I WANTED TO FOLLOW-UP ON YOUR DISCUSSION WITH SENATOR AND YOUR CONVERSATION WITH SENATOR DURBIN . YOU TALK ABOUT THE IMPORTANCE AND UNDERSTAND THE FEELINGS ABOUT ABORTION AND YOU SAID YOU RECOGNIZE THE REAL WORD AND YOU DON’T LIVE IN A BUBBLE. I THINK WHEN YOU TALK ABOUT RESPECT FOR PRESIDENT IT IS MISLEADING. THERE IS WAYS TO SAY YOU ARE RELYING ON PRECEDENTS. STILL SEVERELY LIMITING A WOMAN’S RIGHT TO MAKE HER ONLY PRODUCTIVE CHOICES AND THAT IS EXACTLY WHAT YOU DID. WE ALL RECOGNIZE THAT EVEN AS ROE V WADE IS NOT OVERTURNED THERE WILL BE MANY CASES THAT WILL CONTINUE TO BECOME — COME BEFORE ALL OF THE COURTS THAT WILL PROBABLY BE LAWS ENACTED BY STATES THAT WILL LIMIT A WOMAN’S RIGHT TO CHOOSE. INCLUDING THINGS LIKE PARENTAL CONSENT, SPECIAL CONSENT OR NOTIFICATION, LIMITS AWARE ABORTIONS CAN BE PERFORMED. BOTH SENATORS EXPLAINED THE FACTS SO I WON’T GO OVER THAT BUT WHEN THE CASE REACHED YOU YOU TOOK ANY OPPORTUNITY YOU COULD TO PREVENT THAT GIRL FROM GETTING AN ABORTION PICK YOU SAID YOU WERE RELYING ON PRESIDENT BUT YOU WANT. HE TURNED THIS INTO A PARENTAL CONSENT CASE WHICH IT WASN’T AND HE LOOKED AT THE FACTS AND ROLES AGAINST ALL COMMON SENSE THAT KEEPING A YOUNG WOMAN BEHIND LOCK AND KEY BEHIND — AGAINST HER WILL — FINDING HER SPONSORS SO SHE DID NOT AND YOU DEEMED THESE FACTUAL CIRCUMSTANCES NOT AN UNDUE BURDEN ON HER CONSTITUTIONAL RIGHTS WERE AND ABORTION PICK LET ME READ YOU A PORTION. THE MAJORITY POINTS OUT THAT STATES SUCH AS TEXAS THE MINOR WILL RECEIVE A BYPASS PICK THAT IS TRUE BUT IT IS IRRELEVANT TO THE SITUATION. THE CURRENT SITUATION WAS ALL ABOUT PARENTAL CONSENT AND THE NEED TO GET A JUDICIAL BYPASS, WHICH THIS YOUNG WOMAN DID. IF THERE IS ANYTHING THAT IS IRRELEVANT IT IS YOUR ARGUMENT THAT THIS WAS A PARENTAL CONSENT CASE. THEN YOU WENT ON TO ANALYZE THE CASE ON THE BASIS OF WHETHER OR NOT KEEPING HER UNDER LOCK AND KEY IS A THING THAT THERE BE SPONSORS FOUND FOR HER WHICH COULD HAVE ENDED UP BEING AN UNFEASIBLE TIMEFRAME FOR HER TO GET AN ABORTION PICK — AND THE YOUNG WOMAN GOT THE JUDICIAL BYPASS. THE FACT THAT SHE DID NOT HAVE THE PARENTAL CONSENT IS NOT AN ISSUE. IRRELEVANT. THIS IS VERY DISTURBING. IS IT ANY WONDER THAT THERE IS A SO MANY PEOPLE THAT EVEN IF YOU ARE NOT SITTING HERE THE NOMINEE WILL RETURN ROE V WADE EVEN IF IT IS NOT OVERTURNED. THERE WILL BE AN ISSUE THAT WILL PUT BARRIERS AND HER — BEFORE A WOMAN’S RIGHT TO CHOOSE. I FIND THAT A RATHER UNBELIEVABLE AND YOU ALSO MENTIONED, YOU DID NOT JOIN THE DISSENT WHICH BASICALLY SAYS THAT ANY MINOR DOES NOT HAVE A CONSTITUTIONAL RIGHT TO AN ABORTION. THE FACT THAT YOU DID NOT JOIN THE DISSENT, DOES THAT MEAN THAT UNDOCUMENTED PERSONS DO HAVE A CONSTITUTIONAL RIGHT TO AN ABORTION? >>I DECIDED THAT CASE BASED ON THE PRESIDENT OF THE SUPREME COURT AND THE ARGUMENTS THAT WERE PRESENTED IN THE CASE. I MAKE CLEAR THAT I WAS FOLLOWING IS CLEARLY — CLOSELY AS I COULD. PARENTAL CONSENT AND SPOUSAL CONSENT. THE SUPREME COURT HAS UPHELD THE LAWS.>>IT REQUIRES A JUDICIAL’S — JUDICIAL WAIVER.>>PARENTS WERE BEATING HER UP. HOW CAN YOU EXPECT — EXPECT PARENTAL CONSENT IN A CASE LIKE THAT? >>THAT WOULD BE A SITUATION FOR THE BYPASS. THIS WAS FOR THE WOMAN OF A MINOR IN A IMMIGRATION FACILITY BY HERSELF >>YOU ALREADY GOTTEN THE JUDICIAL BYPASS PICK NO ISSUE OF PARENTAL CONSENT. YOU SUBSTITUTED A FOSTER FAMILY FOR PARENTAL CONSENT. THAT IS NOT AN ISSUE. I DO HAVE A QUESTION. YOU MENTIONED SEVERAL TIMES YOU DID NOT JOIN THE DISSENT. THE CRUX OF THE DISSENT THAT THERE WAS NO RIGHT FOR THE ALIEN MINOR TO HAVE AN ABORTION. DID YOU JOIN OR NOT JOIN THAT CONSENT BECAUSE YOU HAD D GOOD — DISAGREE WITH THAT? IN FACT, MINORS DO HAVE A RIGHT TO ABORTION IN OUR COUNTRY.>> AS A GENERAL PROPOSITION, FIRST OF ALL, THE GOVERNMENT DID NOT ARGUE IN THAT CASE THAT ELLEN’S LACK CONSTITUTIONAL RIGHTS GENERALLY TO OBTAIN THE ABORTION.>>PROBABLY THEY FIGURED THAT IS A DECIDED ISSUE BUT MAYBE YOU DON’T THINK SO PICK DO YOU THINK THAT IS AN OPEN QUESTION AS TO WHETHER OR NOT THE ALIEN MINORS OR ALIENS HAVE A RIGHT TO THE CONSTITUTIONAL RIGHT TO AN ABORTION? PERSONS IN THE UNITED STATES HAVE CONSTITUTIONAL’S — CONSTITUTIONAL RIGHTS. >>OKAY. >>I HOPE THAT IS WHY YOU DID NOT JOIN THAT CONSENT — DISSENT. I THINK YOU CAN LEARN A LOT FROM A JUDGE BY LOOKING AT HIS DISSENT. JUDGES GO OUT OF THEIR WAY TO VOICE THEIR DISAGREEMENT TO SHOW THEIR VIEWS PICK YOUR THE HIGHS DISSENT RATE AMONGST CIRCUIT JUDGES. SEVERAL STUDIES THAT ANALYZE YOUR DECISION. THE FIRST STUDY SHOWS THAT COMPARED TO OTHER CIRCUIT COURTS JUDGES ELEVATED TO NOT ONLY HAVE THE HIGHEST RATE OF DISSENTS BUT THE HIGHEST RATE OF PARTISAN DISSENT. I THINK I HAVE A CHART ON THAT. MAYBE NOT. THERE IS A STUDY AND I ASK TO HAVE THE STUDY BE ENTERED INTO THE RECORD. THE SECOND THING, I AM ON A ROLL HERE. THE SECOND STUDY BY PEOPLE FOR THE AMERICAN WAY SHOWS THAT YOU CONSISTENTLY SIDED AGAINST WORKERS AND IMMIGRANTS AND ONLY ONCE IN YOUR DISSENT. I ASK UNANIMOUS CONSENT TO HAVE THE PEOPLE FOR THE AMERICAN WAY STUDIED FOR THE RECORD — ENTERED FOR THE RECORD. IN CASES WHERE THERE WAS DISAGREEMENTS AMONG THE JUDGES YOU CONSISTENTLY SIDED AGAINST HELPING PEOPLE WHO WANTED TO PROTECT THE CLEAN AIR AND WATER. I ASK UNANIMOUS CONSENT TO HAVE THE PUBLIC CITIZENS STUDY ENTERED INTO THE RECORD AS WELL.>>THE FOURTH STUDY FOUND THAT YOU ARE AND I QUOTE A STUDY, NOTE JUDICIAL MODERATE, IT IS HARD TO FIND A FEDERAL JUDGE MORE CONSERVATIVE THEN JUDGE BRETT KAVANAUGH. I HAVE THIS ENTERED INTO THE RECORD AS WELL.>>WHY DID YOU DISSENT ON BEHALF OF CONSUMERS, WORKERS AND PLEASE DON’T TALK TO ME ABOUT ALL THE TIMES THAT YOU ARE WITH THE MAJORITY WHERE YOU JOINED THE OTHER MAJORITIES. >>I WROTE FOR WORKERS AND ENVIRONMENTAL INTEREST MANY TIMES AND IN BIG CASES AND THAT INVOLVED CLEAN AIR REGULATIONS IN PARTICULAR MATTER REGULATION. AFFIRMATIVE DEFENSE ADMISSIONS. THE CALIFORNIA CLEAN LAW OVER A FELLER — FELLOW JUDGE RICK >>THERE IS A PATTERN TO YOUR DISSENTS. YOUR PATTERN IS THAT YOU DO NOT FAVOR REGULAR PEOPLE.>>ONE OF MY MOST IMPORTANT DISSENTS WAS IN THE UNITED STATES VERSUS A CRIMINAL CASE FOR A CONVICTED DRUG DISTRIBUTOR. THE QUESTION WAS WHETHER HE WAS SENTENCED TO A 30 YEAR MINIMUM PERMISSIBLY AND I JOIN WITH THE JUDGE THAT I WAS IN DISSENT BECAUSE THE REQUIREMENT WAS OMITTED FROM THE JURY INSTRUCTIONS AND I WROTE A VERY LENGTHY DISSENT. THAT IS SOMEONE I ONE OF MY MOST IMPORTANT DISSENTS OF HALF OF THE CRIMINAL DEFENDANT.>>THE THING ABOUT THE PATTERN IS THAT THERE ARE EXCEPTIONS TO THE PATTERN. ALL OF THESE STUDIES, WE ARE NOT TALKING ABOUT THE EXCEPTIONS BUT WE ARE TALKING ABOUT THE EXISTENCE OF A PATTERN. IT BOTHERS ME. I WOULD EXPECT THE JUDGE TO FOLLOW THE LAW. SEVERAL TIMES YOU SAID YOU ARE A , HOW DID YOU DESCRIBE YOURSELF IN TERMS OF FOLLOWING THE LAW? >>INTO PRINTED AND PROLONGED.>>PROLOGUE.>> ANOTHER CASE I WROTE THE LEADING OPINIONS ON BATTERED WOMAN SYNDROME. OVER A DISSENT OF ANOTHER JOB WHERE I REVERSED THE CONVICTION OF A WOMAN ON THE GROUNDS THAT SHE — >>I HATE TO INTERRUPT YOU BUT 30 MINUTES GOES BY FAST AND THERE IS ALWAYS EXCEPTIONS. YOU DESCRIBE YOURSELF AS A PRO LAW JUDGE. SOMEONE WHO FOLLOWS PRESIDENT AND THE LAW. THE MAJORITY CRITICIZES IT YOU FOR NOT FOLLOWING THE LAW OR PRESIDENTS. CONGRESS IS CLEAR THAT YOU MISSED THE LANGUAGE AND IGNORED THEM. YOUR COLLEAGUES ACTUALLY TOOK THE TIME TO CRITICIZE YOUR DISSENT. IN THE 2008 CASE THE MAJORITY SAID THE DISSENT CREATES HIS OWN ROLE. HE SAID YOUR DISSENT ABANDONED THE TEXT OF THE APPLICABLE LAWS ALTOGETHER. IN 2011 THE MAJORITY HELD THAT WASHINGTON COULD THEN AUTOMATIC WEAPONS. THE ENTIRE APPENDIX TO EXPLAIN HOW IT WAS WRONG. I ASK UNANIMOUS CONSENT TO HAVE A 10 PAGE APPENDIX ENTERED INTO THE RECORD.>>WITHOUT OBJECTION.>>IN 2017, THE MAJORITY SHARPLY CRITICIZED YOUR DISSENT. THEY SAID RATHER THAN ENGAGE WITH THE RECORD MUCH LESS ADHERE TO THE STANDARDS, THE DISSENT OFFERS A SERIES OF CONCLUSIONS AND MISCHARACTERIZES THE COURT’S OPINION. THEY SAID THAT YOU APPLIED THE LAW AS HE WISHES IT WERE AND NOT AS IT CURRENTLY IS. THIS DOES NOT SOUND LIKE A PRO LAW JUDGE TO ME.>>IF YOU COULD BEGIN TO WRAP UP PLEASE.>>WHEN THE COLLEAGUES GO OUT, THEY WERE OFTEN POINTING YOU ARE NOT FOLLOWING THE LAW IN THE CASES.>>I STANDBY BY RECORD. I HAVE BEEN IN THE MAJORITY 95 % OF THE TIME. I HAVE WRITTEN OPINIONS JOINED BY COLLEAGUES OF ALL STRIPES. THERE HAS BEEN STUDIES THAT HAVE SHOWN THE FILIATION OF THE JUDGES THAT JOINED ME WHEN THERE WAS A DISSENT. I STANDBY MY RECORD. I AM PROUD OF MY RECORD. I HAVE EXPLAINED THOROUGHLY MY DECISION IN EACH CASE. I APPRECIATE YOUR PERSPECTIVE AND UNDERSTAND THE CASES YOU HAVE RAISED BUT MY OPINION SPEAKS FOR ITSELF AND I AM PROUD.>>THANK YOU, MR. CHAIRMAN.>>THANK YOU VERY MUCH, MR. CHAIRMAN.>>YOU CAN RELAX FOR A SHORT MOMENT BECAUSE I WILL TAKE A FEW MOMENTS AND INTRODUCED SOME DOCUMENTS FOR THE RECORD. FIRST, MR. CHAIRMAN, I WOULD LIKE TO INTRODUCE THE CONSENT TO ENTER FROM THE SAN BERNARDINO EDITORIAL BOARD. STATING THAT BRETT KAVANAUGH NOMINATION MIGHT BE THE CALM BEFORE THE STORM. THE EDITORIAL BOARD SAYS THAT GEORGE CAPITAL — BRETT KAVANAUGH IS CONVENTIONALLY CONSERVATIVE AND LESS LIKELY THAN OTHER JUDGES TO OVERTURN LANDMARK CASE LAW. IN ADDITION TO QUALIFICATION, THE JUDGE BRINGS A LEADERSHIP OF NORMALITY AND TRADITIONAL COHESION. SECONDLY THE SAN DIEGO UNION TRIBUNE MAY BE MORE INDEPENDENT THAN YOU EXPECT. THIS GOES FORWARD TO SAY THAT THE EDITORIAL BOARD IS STRONGLY INCLINED TO SUPPORT THE NOMINATION. THEY HAVE SUPPORTED BOTH DEMOCRATS AND REPUBLICANS IN THE PAST. THE NOMINEE HAS THE REQUISITE CREDENTIALS AND IT APPALLS JUDGE KAVANAUGH AS STRAIGHT OUT OF SUPREME COURT CENTRAL CASTING. PUT THIS DOCUMENT IN THE RECORD.>>WITHOUT OBJECTION.>> A DOCUMENT FROM THE HARVARD BLACK LAW STUDENTS ASSOCIATION. THIS EXHIBITS HIS COMMITMENT TO DIVERSITY. HE REACHED OUT TO THE HARVARD LOSS OF THE BLACK LAW STUDENTS TO EXPRESS HIS INTEREST IN ORGANIZING AN EVENT FOR THE MEMBERS. ON THE PANEL WITHIN WAS AN AFRICAN AMERICAN JUDGE ON THE NINTH CIRCUIT COURT OF APPEALS. THE BLACK LAW STUDENT ASSOCIATION DESCRIBE THE EVENT. JUDGE KAVANAUGH EXPLAINED THAT ONE OF THE PRIORITIES IS TO ENCOURAGE MORE STUDENTS OF COLOR TO APPLY. SEVERAL REPORTS INDICATED THAT LAW STUDENTS ARE UNDERREPRESENTED. DURING THE EVENT JUDGE KAVANAUGH PROVIDED HIS INSIGHT AND ADVICE ON HOW THEY SHOULD NAVIGATE THE PROCESS. THE JUDGE GRACIOUSLY OFFERED IS TIME FOR THE PANEL AND ALSO HAS CONTINUED TO MENTOR NUMEROUS HARTFORD STUDENTS THAT HE IS TAUGHT OR WORKED WITH AND NUMEROUS CAPACITIES PICKS JUDGE AND THE PREP LETTER. GEORGETOWN PREP. THE FORMER CLASSMATES GREW UP WITH GEORGE CAVANAUGH — JUDGE KAVANAUGH. THEY KNOW HIM AS A MAN OF HIGH CHARACTER AND INTELLECT BEFORE HE BECAME A JUDGE AND IN HIGH SCHOOL HE WAS THE TEAM CAPTAIN AND A MULTISPORT ATHLETE. YEARS LADY — LATER HE REMAINS THE SAME APPROACHABLE PERSON THEY KNEW FROM CLASS AND ACTIVITIES. THE LETTER GOES ON WITH SHINING ACCOLADES AND I WOULD LIKE TO PUT THIS INTO THE RECORD.>>THE GOVERNOR OF WYOMING SET JUST SENT A LETTER. HE EMBODIES THE QUALITIES WE NEED. HE WILL BE AN EFFECTIVE AND FAIR MEMBER OF THE UNITED STATES SUPREME COURT. I ASK TO SUBMIT THIS. >>THANK YOU VERY MUCH MR. CHAIRMAN AND JUDGE KAVANAUGH. I WOULD LIKE TO TURN TO QUESTIONS. BEFORE I GET INTO THE QUESTIONS I HAD INTENDED TO ASK I WANTED TO GET INTO THE DISCUSSION AND GO BACK AND BRING CLARITY TO THE DISCUSSION HELD EARLIER AND SOME OF THE QUESTIONING WITH REGARD TO THE INDEPENDENT COUNSEL VERSUS THE SPECIAL COUNSEL CIRCUMSTANCES AND STATUES WE HAVE HAD IN THE UNITED STATES. MY COLLEAGUES ASKED A LOT ABOUT THE OLD STATUTES. IT IS IMPORTANT TO WALK THROUGH THE DIFFERENCES BETWEEN THE STATUTES THAT IS NO LONGER LAWN THE NEW SPECIAL COUNSEL REGULATIONS. I WILL MENTION THREE IMPORTANT DIFFERENCES I WILL ASK YOU IF YOU WOULD LIKE TO GIVE ANY CLARITY TO THE SITUATION AND ISSUES RAISED EARLIER. THE PROCESS FOR APPOINTING A SPECIAL COUNSELOR WHICH IS THE CURRENT SITUATION. THE DECISION TO APPOINT A SPECIAL COUNSEL IN THE CHOICE OF WHOM TO APPOINT IS WITHIN THE DISCRETION OF THE ATTORNEY GENERAL. THE INDEPENDENT COUNSEL HAD TO BE SELECTED BY A PANEL OF THREE CIRCUIT JUDGES. SECOND, THE SCOPE OF THE INVESTIGATION. THE SCOPE OF THE CURRENT SPECIAL COUNSEL INQUIRE IS DETERMINED SOLELY BY THE ATTORNEY GENERAL. THE SCOPE OF THE INDEPENDENT COUNSEL JURISDICTION WHEN IT WAS THE LAW WAS 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 COULD ONLY HAVE BEEN REMOVED BY A THREE-JUDGE PANEL. THOSE ARE IMPORTANT DIFFERENCES RELATED TO THE CONVERSATION YOU HAD EARLIER. JUDGE KAVANAUGH, WITH THAT CLARIFICATION WOULD YOU LIKE TO GIVE ANYMORE CLARIFICATION TO THE DISCUSSION EARLIER? >>THANK YOU AND I APPRECIATE THE DISTINCTION WHICH I THINK ARE ACCURATE AND IT IS IMPORTANT TO UNDERSTAND AS YOU UNDERSCORE THE OLD STATUTE THAT HAD MANY PARTS TO IT AND THAT COMBINED TO MAKE IT A DEPARTURE FROM THE TRADITIONAL SPECIAL COUNSEL SYSTEM, ALL OF WHICH WERE PART OF THE ANALYSIS THE JUSTICE ENGAGED IN DISSENT AND THE CONGRESS LOOKED AT WHEN IT DECIDED THAT THE STATUE HAD BEEN A MISTAKE AND OVERWHELMINGLY DECIDED NOT TO REAUTHORIZE IN 1999. >>THANK YOU. I FELT LIKE YOU DID NOT GET AN OPPORTUNITY TO MAKE THAT CLARIFICATION AND THE RECORD NEEDED TO BE CLEARED.>>BEFORE WE MOVE ON I WANT TO STATE THAT THE FUNDAMENTAL STRUCTURAL FLAWS WITH THE OLD STATUTE, SENATOR CALLED THAT LAW UNCHECKED, UNBRIDLED, UNRESTRAINED AND UNACCOUNTABLE. JUSTICE KAGAN CALLED INTO QUESTION. I WANT THE RECORD TO BE CLARIFIED IN THAT CONTEXT. >>THANK YOU, SENATOR. >>NOW, WHAT I WANT TO DO DURING THE REST OF MY QUESTIONING A NUMBER OF DIFFERENT WAYS IS TO GET INTO YOUR JUDICIAL RECORD. I WILL START WITH THIS BY GOING BACK TO WHAT THIS BEGAN YESTERDAY. AN ATTACK ON THE DOCUMENTATION THAT HAS BEEN PRODUCED BY YOU AND OTHERS FOR YOUR RECORD. I WILL STATE AGAIN THAT THERE IS NO NOMINEE FOR THE SUPREME COURT WHO HAS EVER BEEN ASKED A MORE ROBUST QUESTIONNAIRE BY THIS COMMITTEE THEN YOU. YOU PROVIDED I BELIEVE AROUND 17,000 PAGES OF DOCUMENTS IN RESPONSE TO THE QUESTIONNAIRE WHICH WAS MORE THAN ANY OTHER NOMINEE HAS BEEN ASKED. SECONDLY YOU PROVIDED OVER 440,000 OTHER DOCUMENTS OR PAGES OF DOCUMENTS THAT IN AND OF ITSELF IS MORE THAN THE ENTIRE NUMBER OF DOCUMENTS OR PAGES PROVIDED BY THE LAST PREVIOUS OF FIVE NOMINEES TO THE SUPREME COURT. YOU ALSO GOT A RECORD, A JUDICIAL RECORD WHICH IS ACKNOWLEDGED BY SENATORS CONSTANTLY AS THE MOST IMPORTANT PART OF THE DOCUMENTATION FOR A NOMINEE TO THE SUPREME COURT. OVER 10,000 PAGES OF YOUR DECISIONS. UNFORTUNATELY WE HAVE NOT SEEN A LOT OF FOCUS ON THAT YET. THE QUESTIONING YOUR RECEIVED IN THIS HEARING AND I WANT TO TRY TO GET INTO THAT. BEFORE I DO, I WANT TO NOTE THAT EVERYONE HAS HEARD THIS MANY TIMES BUT I AM NOT SURE THAT THE NORMAL AMERICAN REALLY UNDERSTANDS. YOU ARE A JUDGE OF THE DC CIRCUIT. IT HAS BEEN SAID IN THIS ROOM A NUMBER OF TIMES THAT THAT IS OFTEN CALLED THE SECOND MOST POWERFUL COURT IN THE NATION. IF THE CIRCUIT COURT, THERE IS A NUMBER OF CIRCUIT COURTS, WHAT IS DIFFERENT ABOUT THE DC CIRCUIT COURT FROM THE NINTH CIRCUIT COURT IN WHICH — WHAT IS DIFFERENT BETWEEN ALL OF THE DIFFERENT COURTS IN THE DC CIRCUIT COURT? >>THANK YOU, SENATOR. ALL OF THE COURTS OF APPEALS IS IMPORTANT AND THEY HAVE IMPORTANT DOCKETS AND CASELOADS THE JUDGES ON ALL OF THE COURTS DO IMPORTANT WORK. THE DC CIRCUIT DOES GET MORE REGULATORY CASES BECAUSE WE ARE THE DC CIRCUIT AND IN THE NATIONS CAPITAL AND THE SEAT OF GOVERNMENT AND MORE REGULATORY CASES COME. EPA CASES FOR EXAMPLE AND NLRB CASES, ENVIRONMENTAL PROTECTION AGENCY. THE NATIONAL LABOR RELATION BOARD AND WE WILL GET MORE OF THOSE CASES INVOLVING AGENCIES OF THE GOVERNMENT HERE IN DC AS A PERCENTAGE OF THE DOCKET THEN YOU WOULD GET IN OTHER COURTS AND THAT INCLUDES SOME OF THE SEPARATION OF POWERS AND CONTROVERSIES THAT TRADITIONALLY ARISE IN THE NATIONAL SECURITY CASES. WE HAVE ALTHOUGH GUANTANAMO RELATED CASES IN OUR COURT. WE HAVE CASES RELATED TO GOVERNMENT OPERATIONS, GOVERNMENT SEPARATION OF POWERS , THE AGENCIES ARE THE BIGGER PERCENTAGE. I WANT TO THAT THE COURTS OF APPEALS DO IMPORTANT WORK AND THE JUDGES HAVE IMPORTANT DOCKETS AND DIFFERENT CHARACTERS OF EACH OF THE COURTS IN TERMS OF — THE FIFTH CIRCUIT HAS IMMIGRATION LAW. THE 11th CIRCUIT HAS A VERY IMPORTANT DOCKETS. ALL OF THEM HAVE IMPORTANT DOCKETS. DC HAS MORE SEPARATION OF POWERS BUT I DON’T WANT TO — I HAVE FRIENDS ON THE OTHER COURTS OF APPEALS AND I DON’T WANT TO DIMINISH THE WORK THEY DO BECAUSE IT IS VERY IMPORTANT WORK. >>I APPRECIATE YOUR ANSWER AND THOSE OF US WHO LIVE IN THE NINTH CIRCUIT UNDERSTAND THE POWER. THE POWER OF THE NINTH CIRCUIT COURT OF APPEALS. WE ARE VERY AWARE OF THE INCREDIBLE POWER. THE POINT BEING IS THAT THE DC CIRCUIT IS DISTINCTLY DIFFERENT IN THAT IT GETS A MUCH HIGHER LEVEL OF CASELOAD DEALING WITH THE OPERATION OF EXECUTIVE AGENCIES AND WITH OPERATIONS OF GOVERNMENT. THE KIND OF THINGS THAT WE HAVE BEEN TALKING ABOUT EXTENSIVELY. THESE TYPES OF ISSUES AND I THINK IT IS IMPORTANT FOR THAT TO BE BROUGHT OUT. >>THANK YOU.>>WITH REGARD TO THE DC CIRCUIT IN WHICH YOU SIT, YOU HAVE SPENT HOW MANY YEARS IS A JUDGE? >>AT 12 YEARS AND THREE MONTHS .>>HOW MANY DECISIONS? DO YOU KNOW THE NUMBER OF DECISIONS? >>I THINK I HAVE HANDLED WELL OVER 2000 CASES. INCLUDING ALL THE CASES COUNTED UP.>>HOW MANY WERE YOU THE AUTHOR OF THE OPINION? >>I WRITTEN THE MAJORITY OF OPINIONS AND PUBLISHED IN 300 SEVEN CASES.>>WHAT THE PATTERN IS WITH YOUR DECISION MAKING? I WILL NOTE BEFORE I ASK YOU THAT THE CURRENT ACTIVE JUDGES ON THE DC CIRCUIT 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 DEMOCRATIC THAN REPUBLICAN IN TERMS OF WHO NOMINATED THEM. I GUESS I WILL LEAD YOU A LITTLE BIT WITH THIS QUESTION BUT IN THE 7000 CASES THAT YOU HAD BEEN INVOLVED IN WITH THIS GROUP OF JUDGES, WHAT PERCENTAGE DID YOU AGREE WITH? IN OTHER WORDS, WHAT PERCENTAGE WHERE YOU AND THE MAJORITY >>IT HAS TO BE IN THE 90s I WOULD BELIEVE.>>I HEARD IT WAS 97. I BELIEVE THAT SOUNDS CORRECT. IF THERE IS A PATTERN HERE, IT IS THAT YOU ARE RIGHT THERE WITH THE MAJORITY OF YOUR COLLEAGUES ON THE COURT ON MOST CASES.>>I DON’T MEAN JUST 51 BUT IT IS 97 IF I REMEMBER. >>THAT SOUNDS ABOUT RIGHT. I APPRECIATE IT. WE ARE JUDGES. WE DON’T WEAR PARTISAN LABELS AS JUDGES AND I WORKED OR TRY TO WORK WELL UNDER THE LAW WITH ALL OF MY COLLEAGUES. >>THOSE WHO WANT TO TRY TO CREATE THE IMPRESSION THAT YOU ARE A LIAR, YOU HAVE TO USE THAT LAST PERCENT IN WHICH YOU ARE ACTUALLY IN THE DESCENT. NOT A MEMBER OF THE PARTIAL MAJORITY BUT THEY HAVE TO GO TO THAT VERY SMALL NUMBER OF CASES AND THEN TRY TO FIGURE OUT A WAY TO MAKE IT LOOK LIKE YOU HAVE DISAGREEMENT WITH NORMS IN THE JUDICIARY. PEOPLE START TALKING ABOUT PATTERNS, THE PATTERN IS THAT YOU ARE WORKING WITH YOUR COLLEAGUES ON THAT COURT ANY UNITED WAY AND THERE IS A HIGH- LEVEL OF CONSENSUS IN THE RULINGS IN WHICH YOU PARTICIPATE. IN TERMS OF THE DECISIONS THAT YOU HAVE WRITTEN, THE 307 DECISIONS THAT YOU HAVE WRITTEN, HOW MANY OF THOSE DO YOU RECALL WERE MAJORITY DECISIONS? DECISIONS FOR A MAJORITY? >>THE VAST MAJORITY OF THOSE ARE MAJORITY OPINIONS. A SMALL NUMBER WOULD HAVE BEEN DISSENTING OPINIONS. DISSENTS AND CONCURRENCES.>>I DON’T KNOW THAT YOU WOULD HAVE THE JUST — SISTERS — STATISTICS BUT I ASSUME SOME NUMBER OF CASES WERE APPEALED TO THE SUPREME COURT. DID THE SUPREME COURT, THE ONES THAT YOU WROTE, WHERE THEY OVERTURNED REGULARLY OR WHERE THEY SUSTAINED? DO YOU KNOW THE NUMBERS? >>13 CASES WHERE THE SUPREME COURT HAS AGREED WITH THE ANALYSIS WHERE THE DECISION I MADE EITHER IN A DISSENT OR MAJORITY OPINION FOR THE DC CIRCUIT. >>HOW ABOUT THE REVERSALS? >>ONE CASE WHERE THERE WAS A REVERSAL. EXCUSE ME. 13-1.>>IF YOU ARE LOOKING AT A PATTERN, IT APPEARS THAT YOU ARE IN THE MAINSTREAM OF THE AMERICAN JUDICIARY. WITH REGARD TO THE QUESTION OF HOW THE SUPREME COURT HAS TREATED YOUR CASES, I RECALL THAT THEY ACTUALLY ADOPTED YOUR LINE OF REASONING IN A NUMBER OF CASES. IS THAT CORRECT? >>THAT IS CORRECT, SENATOR. I DON’T KNOW IF YOU HAVE — >>I DON’T HAVE THE NUMBER.>> OF THE 13, THAT IS CORRECT WHERE THEY EITHER CITED OR QUOTED OR OTHERWISE AGREED WITH THE REASONING OR DECISION I MADE AN ACHING CURRENT CONSENT AND I AM HAPPY TO TALK ABOUT THEM.>>LET ME ASK YOU THIS. I WAS GOING TO ASK YOU IS BEFORE I GO INTO SOME OF THE CASES THAT I AM AWARE THAT YOU PARTICIPATED THAT ARE NOTABLE, ARE THE ANY OF THE CASES THAT YOU PARTICIPATED IN AS A JUDGE AND PARTICULARLY WHERE YOU RATE THE OPINION. — WROTE THE OPINION. I WOULD LIKE YOU TO HAVE AN OPPORTUNITY TO TALK ABOUT YOUR RECORD. IS THERE SOME THAT YOU WOULD LIKE TO DISCUSS BEFORE I GO ON TO SOME I HAVE ALL MY PAPERS? >>I WILL LET YOU ASK IF YOU.>> I WILL RUN OUT OF TIME BEFORE I GET TOO MUCH.>>EQUAL TREATMENT OF WOMEN. ONE OF THE CASES YOU PARTICIPATED IN IS YOU — THE UNITED STATES WHERE YOU DEFENDED THE RIGHTS AND REVERSED THE DISTRICT COURT ON GROUNDS THAT A FEMALE PRISONER WAS PREJUDICED. WOULD YOU DISCUSS THAT CASE? IS BACK THERE IS A CRIMINAL CONVICTION OF A WOMAN FOR EXTORTION AND SHE CLAIMED DURESS DEFENSE. SHE CLAIMED SHE WAS A BATTERED WOMAN . SHE WAS REPEATEDLY BEATEN BY HER BOYFRIEND PICK THE DISTRICT COURT HAD RULED AGAINST THE WOMAN ON THE CLAIM THAT SHE, HER COUNSEL WAS INEFFECTIVE BY NOT PRESENTED THE DEFENSE. IT CAME TO OUR COURT AND A VERY LENGTHY OPINION EXPLAINING WHY IT WAS THE EFFECTIVE DECISION NOT TO PRESENT THE THE DEFENSE. OVER DISSENT FROM ANOTHER JUDGE BUT I EXPLAINED THE POINT THAT THE JURORS NEEDED TO HEAR THE EVIDENCE FROM THE EXPERT ABOUT THE BATTERED WOMAN’S DEFENSE BECAUSE OTHERWISE THE JURY MAY NOT BELIEVE THE CLAIMS SHE WAS MAKING BECAUSE THEY MIGHT THINK , WHY DIDN’T SHE WALK AWAY OR WHY DID SHE NOT DO SOMETHING ELSE. THE EXPERT TESTIMONY WOULD EXPLAIN WHAT HAPPENS WHEN YOU ARE BEATEN REPEATEDLY AND WOULD EXPLAIN THAT THE JURORS WOULD NOT — WOULD BENEFIT FROM HAVING THE EXPERT UNDERSTANDING THAT SOMETIMES YOU CANNOT WALK AWAY. THAT IS THE WHOLE POINT WHEN YOU ARE BEATEN REPEATEDLY.>>I APPRECIATE THAT. WE REVERSE THE CONVICTION IN THE CASE. >>THE ACLU SAID THE OPINION WAS A SYMPATHETIC UNDERSTANDING OF PARTNER VIOLENCE AND THE FX. I WILL SKIP OVER ANOTHER CASE BECAUSE WE ARE RUNNING ON ON TIME. WHAT ABOUT YOU REVERSED THE COMPLAINT FROM AFRICAN-AMERICAN SECRETARIES.>>THAT IS A DISCRIMINATION CASE WHERE THE — AS WE ANALYZED THE EVIDENCE WAS A FINISH — SUFFICIENT TO RAISE A CLAIM OF RACE DISCRIMINATION BASED ON THE TREATMENT THAT ARRIVE — AFRICAN AMERICAN SECRETARIES RECEIVED AND THAT WAS OUR CASE. >>THANK YOU AND I HAVE PAGES ON THE ISSUE BUT I HAVE ONLY 10 MINUTES LEFT. I WILL SHIFT TO ANOTHER ISSUE. LOOKING AT THE CASES YOU HAVE DECIDED. RACE AND DIVERSITY. LET’S TALK ABOUT THE CASE WHERE AN AFRICAN-AMERICAN EMPLOYEE WAS FIRED AT FANNIE MAE. HE BROUGHT THE EMPLOYMENT DISCRIMINATION CLAIM SAYING THE SUPERVISOR USED A DESPICABLE SLUR AND CREATED A HOSTILE WORK ENVIRONMENT. HE JOINED THE OPINION AND YOU ALSO WROTE A SEPARATE CONCURRENCE. IN YOUR CONCURRENCE, YOU RATE THE SEVERITY OF THIS RACIAL SLUR , EVEN A SINGLE USE OF THE N WORD BY A SUPERVISOR IS SUFFICIENT TO CREATE A HOSTILE WORK ENVIRONMENT. I COULD GET ONE BUT I WOULD RATHER GIVE YOU A CHANCE TO DESCRIBE THE CASE.>>THAT CASE WAS A POWERFUL CASE. THE PLAINTIFF ARGUED A PRO SE IN FRONT OF THE COURT. IT IS UNUSUAL. THE SITUATION WAS THAT HE WAS CALLED THE N WORD BY HIS SUPERVISOR. THE QUESTION WAS WHETHER THE SINGLE UTTERANCE OF THE N WORD CONSTITUTED A RACIAL — THE QUESTION WAS A SINGLE UTTERANCE OF THE WORD SEVERE. I WROTE A SEPARATE OPINION TO MAKE CLEAR IT WAS. THAT NO OTHER WORD IN THE ENGLISH LANGUAGE POWERFULLY CALLS TO MIND THE LONG AND BRUTAL STRUGGLE AGAINST RACISM. I HAVE EMPHASIZED IN MANY CASES AND A LONG MARCH FOR RACIAL EQUALITY IN THE UNITED STATES IS NOT OVER. LOOK BACK TO SOME OF THE HISTORY OF THE COUNTRY AND THE ORIGINAL SIN OF THE CONSTITUTION WAS THE TOLERANCE OF SLAVERY. THE SLAVE CLAUSE. THE IMPORTATION CLAUSE WHICH ALLOWED THE SLAVE TRADE FROM 1788 TO 1880 — 1808 WHICH DURING THE 20 YEAR PERIOD, 200,000 SLAVES WERE IMPORTED INTO THE UNITED STATES. THE HISTORY ON PAPER. THEN OF COURSE, A CENTURY OF BACKTRACKING FROM THE PROMISE OF THE 14th AMENDMENT. JIM CROW AND RACIAL DISCRIMINATION LEADING UP TO BROWN VERSUS WHAT OF EDUCATION AND THE CIVIL RIGHTS ACT AND THE VOTING RIGHTS ACT OF 65. THE MOST IMPORTANT EVER ENACTED. STILL WORK TO BE DONE AFTER CENTURIES OF DISCRIMINATION, RACIAL OPPRESSION, RACIAL DISCRIMINATION AND IN THIS CASE, MY MIND WAS ONE CASE WITH ONE PERSON ARE GOING ONE CLAIM OF ONE INCIDENT TO ME THE MOST HISTORY — HISTORY OF THE COUNTRY WAS REPRESENTED A RACIAL DISCRIMINATION AND THAT ONE CASE AND I TRY TO CAPTURE THAT AS BEST I COULD IN THE OPINION I WROTE.>>THANK YOU, JUDGE. LET’S MOVE ON. YOU JOINED AN OPINION HOLDING THAT IT WAS AN ADVERSE EMPLOYMENT ACTION. IN THAT CASE, YOU WERE — SAID THAT THE COURT SHOULD ESTABLISH A CLEAR PRINCIPLE THAT ALL DISCRIMINATORY TRANSFERS AND DISCRIMINATORY DENIALS OF REQUESTED TRANSFERS ARE ACTIONABLE UNDER TITLE VII. YOU WENT ON TO MAKE IT CLEAR THAT DENYING THE EMPLOYEES REQUESTED TRANSFER BECAUSE OF THE EMPLOYEE’S RACE PLAINLY CONSTITUTION — CONSTITUTES DISCRIMINATION.>>IF YOU ARE TRANSFERRED LATERALLY AND KEPT THE SAME PAY AND BENEFITS, IS THAT REALLY A CHANGE? SUPPOSE THE ORAL ARGUMENT IN THE CASE WHERE I SAID IN THE REAL WORLD, A TRANSFER, EVEN IF YOU GET THE SAME PAY AND BENEFITS MAY AFFECT YOUR LATER JOB OPPORTUNITIES AND CAREER TRACT AND TO THINK THAT THE TRANSFERS WERE VIOLATING THE CIVIL RIGHTS LAW WAS BLINKING REALITY AND THAT IS WHAT I SAID IN THE OPINION. THE CASE LAW AT THAT POINT BASICALLY SAID SOME TRANSFERS CAN BE ACTUAL AND OTHERS CANNOT. I WROTE THAT I DON’T SEE HOW ALL TRANSFERS ARE NOT UNLAWFUL UNDER THE CIVIL RIGHTS ACT. >>I THINK IT IS IMPORTANT FOR AMERICA TO KNOW YOUR ATTITUDE THAT IS THAT STRONG. WE WENT OVER THE ARTISTS VERSUS BIERNACKI CASE WHEN WE WERE TALKING ABOUT THE WOMEN’S RIGHT ISSUES. THIS IS A GROUP OF AFRICAN- AMERICAN SECRETARIES ALLEGING DISCRIMINATION. YOU RULED IN THEIR FAVOR. >>I HAVE A NUMBER OF CASES ON THIS BUT I GOT A DIFFERENT QUESTION ON RACE AND DIVERSITY. I RECALL THE BLACK LAW STUDENTS THAT I INTRODUCED THE LETTER ON PREVIOUSLY BUT I ALSO NOTE HERE THAT YOUR COMMITMENT TO PROMOTING CIVIL RIGHTS GOES BACK TO YOUR DAYS WHEN YOU WROTE ONE OF YOUR FIRST PIECES OF LITERARY WHICH WAS TITLED PARTICIPATION AND PROCEDURE IS THE MINIMUM FOR THE KENTUCKY HEARINGS. YOU CAN EXPLAIN. ESSENTIALLY IT WAS AN ARTICLE ABOUT THIS TOPIC THAT YOU CHOSE WHEN YOU WERE IN LAW SCHOOL. WHY DID YOU CHOOSE THIS TOPIC IN LAW SCHOOL? >>BECAUSE I WAS INTERESTED IN TRIAL PROCEDURE AT THAT TIME BUT I WAS ALSO A PRODUCT OF A CITY WHERE, AS I DESCRIBED YESTERDAY, MY MOM TEACHING WHERE RACE RELATIONS AND DISCRIMINATION WHERE AN ISSUE THAT WAS OF CONCERN TO ME AND I WROTE AFTER THE 1986 OPINION WHICH PROHIBITED RACE DISCRIMINATION IN JURY SELECTION AND I WORRIED OR WROTE WHAT IS TO PERFECT — PREVENT BACKTRACKING FROM THAT DECISION FROM PROSECUTORS WHO WILL BE ABLE TO ASSERT REASONS BUT HAVE THE EFFECT OF EXCLUDING AFRICAN-AMERICANS FROM THE JURY’S. I WROTE AN ARTICLE THAT WAS PUBLISHED EXPLAINING THAT WE NEEDED GOOD PROCEDURES TO DETECT SUBTLE DISCRIMINATIONS IN THE JURY SELECTION PROCESS TO ENSURE THAT THE KENTUCKY DECISION WAS NOT EVADED. THE LEGACY OF ALL WHITE JURIES CONVICTING AFRICAN-AMERICAN DEFENDANTS IS A PAINFUL PART OF OUR CRIMINAL JUSTICE LEGACY AND ONE OF THE THINGS I WANTED TO MAKE SURE IS THAT THAT WAS NOT CIRCUMVENTED PROCEDURALLY.>> THANK YOU. I WANT TO COMMEND YOU ON THIS AND AS I SAID AT THE OUTSET, THIS SEEMS TO ME THAT AN AWFUL SIDE OF THE LOT OF THE TIME THE HEARING IS SPENT CREATING CRITICISMS OF YOU IN AREAS LIKE WOMEN’S RIGHT OR RACE RELATIONS. IN REALITY YOUR RECORD STRONG AND DEEP. IN TERMS OF PROTECTING WOMEN’S RIGHTS AND PROTECTING THOSE ARE IN UNFAVORED POSITIONS AND PROTECTING AGAINST RACIAL DISCRIMINATION AND I HOPE THAT WE CAN GET A STRONG FOCUS ON YOUR TRUE RECORD BECAUSE WHETHER IT IS THESE ISSUES, WHETHER IT IS THE INDEPENDENT — INDEPENDENT COUNSEL ISSUES FOR THE BALANCE OF YOUR DECISION-MAKING AND WHETHER YOU ARE OUT OF THE JUDICIAL NORMS IN TERMS OF YOUR APPROACH TO DECISIONS THAT YOU HAVE ENTERED INTO AS A CIRCUIT JUDGE. THE RECORD, YOUR RECORD REVEALS THE TRUTH. THE ATTACKS THAT HAVE BEEN MADE ARE ABSOLUTELY UNFOUNDED AND I JUST HOPE THAT WE CAN A MUCH DEEPER LOOK AT YOUR TRUE HONEST RECORD AS WE MOVE FORWARD. I ONLY HAVE A MINUTE AND 12 SECONDS LEFT BUT THE MOST IMPORTANT ISSUE TO MAKE IS WHETHER YOU WILL BE AN ACTIVISTS JUST JUST OR WHETHER YOU WILL FOLLOW THE LAW AS IT IS WRITTEN. I KNOW YOUR ANSWER IS BUT I WOULD LIKE TO HEAR YOU IN THE LAST MINUTE TO TELL ME AGAIN WHAT KIND OF A JUDGE, WHAT KIND OF A JUSTICE WILL YOU BE ON THE SUPREME COURT IF YOU ARE CONFIRMED? >>I APPRECIATE THAT AND YOUR COMMENTS. THE INDEPENDENT JUDGE WHO FOLLOWS THE LAW, CONSTITUTION AS WRITTEN, FOLLOW THE STATUTES THAT YOU PASS AND CONGRESS PASSES AS WRITTEN. I WILL REMEMBER HAMILTONS ADMONITION THAT THE JUDICIARY EXERCISES WILL NOT WILL THE JUDGMENT. THE RULES OF LEGAL INTERPRETATION ARE 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.>>THANK YOU. >>>WE ARE SCHEDULED TO TAKE A 30 MINUTE BREAK. IF YOU NEED ALL OF IT JUST SAY SO. >>IF YOU DO, I SUGGEST — I AM NOT SUGGESTING YOU SHOULD NOT TAKE IT.>>25? >>25. WE WILL BE BACK AT 20 OF EIGHT. WE WILL BE BACK AT FIVE AFTER. WHEN WE COME BACK, THE SENATOR WILL BEGIN. >>THANK YOU, SENATOR.>>>TESTIMONY EXPECTED ON FRIDAY INCLUDING REMARKS FROM JOHN DEAN WHO WAS THE WHITE HOUSE COUNSEL DURING WATERGATE IN THE NIXON ADMINISTRATION. THEY ADJOURNED EARLY. ACCORDING TO THE SENATE RULES, AFTER CHUCK SCHUMER FOR THE FULL SENATE TO BE ABLE TO STAY IN SESSION WHEN THE COMMITTEE HEARING IS UNDERWAY. A REMINDER, IF YOU MISSED ANY OF THE COVERAGE, WE ARE REPLAYING EACH SESSION OF THE HEARING AND PRIMETIME ON C-SPAN . WE WANT TO SHOW YOU SOME TESTIMONY FROM EARLIER TODAY. >>FOLLOWING UP ON THE WISE WORDS OF THE SENATOR YESTERDAY ON SEPARATION OF POWERS, YOUR RECORD BEFORE THE SENATE OCCLUDES — INCLUDES MORE THAN THOUSANDS OF PAGES OF WRITING SERVER THE DOZEN YEARS. WE HAVE OVER 440,000 PAGES OF EMAILS AND OTHER RECORDS FROM YOUR LEGAL SERVICE. YOU HAVE WRITTEN EXTENSIVELY ON THE ISSUE OF THE SEPARATION OF POWER AMONG THE THREE BRANCHES AND A KEY COMPONENT OF THE SEPARATION OF POWERS IS IF THE INDEPENDENT JUDICIARY. OBVIOUSLY EVERYBODY LEARNS IN EIGHTH GRADE CIVICS ABOUT JUDGES INTERPRETING LAW. DID YOU SURE HE MUST CONTINUE TO BE THE LEAST POLITICAL AND LEAST DANGEROUS RANCH. THE JUDGES SOLE JOB IS TO FIND AND APPLY THE LAW. EVENLY AND FAIRLY WITHOUT REGARD TO THE PRESIDENT WHO DOMINATED HIM. THE SENATORS WHO VOTED FOR HIM OR THE PARTIES BEFORE HIM AND THE POLITICAL CONSEQUENCES OF HIS DECISION. JUDGE, LET’S DISCUSS JUDICIAL INDEPENDENCE FROM THE — EXECUTIVE BRANCH. NOT EVEN THE PRESIDENT IS ABOVE THE LAW. SOME OF MY COLLEAGUES HAVE CRITICIZED YOUR AUTHORITY SUGGESTING WRONGLY, IN MY OPINION THAT YOUR VIEWS WOULD NOT ALLOW ANY MEANINGFUL CHECK ON THE PRESIDENT, PARTICULARLY THIS ONE. PLEASE TELL US WHAT JUDICIAL INDEPENDENCE MEANS TO YOU INCLUDING WHETHER YOU HAVE ANY TROUBLE RULING AGAINST THE PRESIDENT WHO APPOINTED YOU AND AGAINST THE EXECUTIVE BRANCH IN ANY CASE BEFORE YOU. YOU TALKED ABOUT INDEPENDENCE BUT APPLY IT SPECIFICALLY TO THE RULING AGAINST THE PRESIDENT OF THE EXECUTIVE BRANCH GENERALLY.>>THANK YOU, MR. CHAIRMAN. TO BEGIN WITH, YOU ARE CORRECT. NO ONE IS AGAINST THE LAW IN OUR SYSTEM. THE FEDERAL 16 HAMILTON MAKES CLEAR ALL THE WAY THAT BRANCH IS DESIGNED BY THE FRAMERS OF THE CONSTITUTION AND WAS DIFFERENT FROM THE MONARCHY. UNDER OUR SYSTEM OF GOVERNMENT, THE EXECUTIVE BRANCH IS SUBJECT TO THE LAW, SUBJECT TO THE COURT SYSTEM AND THAT IS AN IMPORTANT PART OF THE FEDERAL 69 AND AN IMPORTANT PART OF THE CONSTITUTIONAL STRUCTURE. IN GENERAL, WE AS JUDGES ARE SEPARATE FROM THE CONGRESS. WE ARE NOT SUPPOSED TO BE INFLUENCED BY POLITICAL PRESSURE FROM THE EXECUTIVE OR FROM THE CONGRESS TOOK WE ARE INDEPENDENCE AND WE MAKE DECISIONS MAKE ON LAW AND NOT POLICY AND NOT POLITICAL PRESSURE AND NOT THE IDENTITY OF THE PARTIES NO MATTER WHO YOU ARE IN OUR SYSTEM. NO MATTER WHERE YOU COME FROM. NO MATTER RICH OR POOR YOU ARE. NO MATTER YOUR RACE, GENDER, NO MATTER YOUR STATION IN LIFE, NO MATTER YOUR POSITION IN GOVERNMENT. IT IS ALL EQUAL JUSTICE UNDER LAW. LOOK AT ARE EXAMPLES IN HISTORY. I ALWAYS GO BACK TO THE GREAT MOMENTS IN OUR HISTORY WHERE THE PRINCIPLES WHICH SOUND ABSTRACT BUT WERE ACTUALLY IMPLEMENTED. I GO BACK TO YOUNGSTOWN. YOU THINK ABOUT, IT IS DECISION WITH THE SUPREME COURT RULING THAT PRESIDENT TRUMAN HAS VIOLATED THE LAW. THIS IS A TIME OF WAR. A TIME OF WAR WHERE LOTS OF AMERICANS WERE KILLED AND THE SUPREME COURT’S ARE UNDER PRESSURE TO DEFER TO THE PRESIDENTS WAR EFFORT AND IN THE DECISION IS INTERESTING IS JUSTICE CLARK AND WE DON’T USUALLY TALK ABOUT JUSTICE CLARK. HE WAS APPOINTED BY PRESIDENT TRUMAN TO THE SUPREME COURT. WHAT A MOMENT OF JUDICIAL INDEPENDENCE TO RULE IN THAT CASE YOU THINK ABOUT JUSTICE JACKSON WHO HAD BEEN WORKING FOR PRESIDENT ROOSEVELT. HE STANDS UP AND SAYS LETTING RACISM LIKE THIS IS LIKE LETTING A LOADED WEAPON LIGHT AROUND. PRESIDENT ROOSEVELT’S DECISION. JUSTICE JACKSON JUSTICE JACKSON [ CROWD PROTESTING ] — JUSTICE JACKSON’S CONCURRENCE IN YOUNGSTOWN WOULD HAS BECOME THE LAW. CATEGORY ONE, TWO, THREE, HE WRITES THE CONCURRENCE AND WHY IS THAT A MOMENT OF INDEPENDENCE? HE HAD WORKED IN THE EXECUTIVE BRANCH AND THE ROOSEVELT ADMINISTRATION BUT HE IS A JUDGE AND SEES IT DIFFERENTLY. UNITED STATES VERSUS NIXON. HE WRITES THE OPINION. UNANIMOUS. MOMENTS OF JUDICIAL INDEPENDENCE. IT IS RESISTING PUBLIC PRESSURE , POLITICAL PRESSURE. IT IS TREATING EVERYONE EQUALLY NO MATTER WHERE YOU ARE OR WHAT STATION. WHEN I WAS A — I BECAME A JUDGE I HAD A CASE CALLED HOM DON VERSUS UNITED STATES. PROTES] THE RIGHT OF ALL PERSONS TO LIVE IN THE COUNTRY. IF YOU ARE A MAN OF INTEGRITY, YOU YOURSELF SHOULD REMOVE YOURSELF. [ PROTESTERS ] [ PROTESTERS ]>>IN THE IN THE CASE, ONE OF BIN LADEN’S ASSOCIATES. YOU WILL NEVER HAVE A NOMINEE — SHOULD I PROCEED? >>THIS IS COMING OUT OF MY TIME BUT IT IS OKAY. LET’S HAVE THESE PEOPLE HAVE THEIR FREE SPEECH. LET’S INTERRUPT THE 300 MILLION PEOPLE. THIS IS YOUR OPPORTUNITY TO SPEAK TO THE UNITED — PEOPLE. IF IT AFFECTS THE OTHER 300 MILLION PEOPLE AND WHAT THEY ARE FROM YOU IS TO BED. PROCEED.>>ONE OF BIN LADEN’S ASSOCIATES INVOLVED BEFORE SEPTEMBER 11. THE WORST ATTACK EVER ON AMERICAN SOIL. HE IS PROSECUTED BEFORE A MILITARY COMMISSION. THE SIGNATURE PROSECUTION OF THE BUSH ADMINISTRATION. HE COMES TO THE CIRCUIT. I AM ON THE PANEL. I WRITE THE OPINION SAYING THAT HIS MILITARY COMMISSION PROSECUTION IS UNCONSTITUTIONAL. IT VIOLATES PRINCIPLES. YOU WILL NEVER HAVE A NOMINEE THAT IS RULED FOR MORE UNPOPULAR DEFENDANT. RILLING FOR — WHY DID I DO THAT IN THAT CASE? WHY DID I RULE FOR SOMEONE WHO HAD BEEN INVOLVED IN THE SEPTEMBER 11th? THE LAW COMPELLED. WE DON’T MAKE DECISIONS BASED ON WHO PEOPLE ARE WITH HER POLICY PREFERENCES. WE BASED DECISIONS ON THE LAW. JUSTICE KENNEDY’S EXAMPLE SOMETHING I HAVE TRIED TO FILE — FOLLOW. YOU ARE NOT A PRO DEFENSE OR PRO PLAINTIFF BUT I AM A PRO LAW JUDGE. I RULED FOR PARTIES WHETHER THEY HAVE THE LAW ON THEIR SIDE. THAT IS PART OF BEING THE INDEPENDENT JUDGE. RULING FOR THE PARTY NO MATTER WHO THEY ARE. IF YOU WALK INTO MY COURTROOM AND YOU HAVE A BETTER LEGAL ARGUMENT, YOU WILL WIN. >>I WANTED TO TALK TO YOU THIS MORNING ABOUT THE GUNS AND GO BACK TO ROE V WADE IF I MIGHT. MY OFFICE WROTE THE ASSAULT WEAPONS LEGISLATION IN 1993. IT WAS LAW FROM 1994 TO 2004. IT ESSENTIALLY PROHIBITED THE TRANSFER, SALE AND MANUFACTURER OF ASSAULT WEAPONS. IT DID NOT AT THE TIME EFFECTIVE POSSESSION. I HAPPEN TO BELIEVE THAT IT DID WORK AND THAT IT WAS IMPORTANT AND I HAVE WATCHED CASE AFTER CASE AND I THINK I MENTIONED EARLIER SCHOOL SHOOTINGS WHICH ARE JUST, I NEVER THOUGHT THIS WOULD HAPPEN IN OUR COUNTRY. SOMEONE WOULD BRING A SEMIAUTOMATIC ASSAULT WEAPON INTO A SCHOOL AND JUST MOW DOWN CHILDREN AND STAFF. I HAVE BEEN VERY INTERESTED IN YOUR THINKING ON ASSAULT WEAPONS. YOU SPECIFICALLY ARGUED THAT THE D SAY — DC ASSAULT WEAPON BEEN WAS UNCONSTITUTIONAL. YOU SAID THE WEAPONS WERE IN COMMON YEARS AND WHAT DID YOU BASE YOUR CONCLUSION THAT ASSAULT WEAPONS ARE IN COMMON USE AND WHAT EVIDENCE DID YOU USE TO DO THAT? >>THANK YOU FOR THE QUESTION. I UNDERSTAND YOUR ROLE ON THAT ISSUE AND YEAR-LONG LEADERSHIP IN THAT ISSUE AND I APPRECIATE THAT. I FACED THE DECISION WHERE AS IN EVERY OTHER DECISION I HAD TO FOLLOW THE PRESIDENT. PRESIDENT OF THE SUPREME COURT. I DON’T GET TO PICK AND CHOOSE WHAT PRECEDENTS I GET TO FOLLOW. I FOLLOW THEM ALL. IN THE SECOND AMENDED — AMENDMENT THE SUPREME COURT AND THE DECISION HAD HELD THERE WAS AN INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS AND THEN AND EXPLAINING WHAT THAT MEANT AND WHAT EXCEPTIONS WOULD BE ALLOWED TO THAT RIGHT, THE JUSTICE AND PART THREE OF THE OPINION WENT THROUGH, THIS DOES NOT MEAN THAT THERE IS NO GUN REGULATION PERMISSIBLE NT PART OF THE OPINION. PART 3 OF THE SUPREME COURT’S OPINION. WHERE IT PREIDENTIFIED A NUMBER OF EXCEPTIONS THAT WOULD BE ALLOWED. FELON IN POSSESSION LAWS, CONCEALED CARRY, LAWS, POSSESSION, MENTALLY ILL, POSSESSION OF GUNS IN SCHOOLS. POSSESSION IN CERTAIN KINDS OF BUILDINGS. HE PREIDENTIFIED THAT. AS TO THE WEAPONS, THE WAY I UNDERSTOOD WHAT HE SAID THERE AND WHAT WAS SAID IN THE McDONALD CASE LATER, WAS THIS DANGEROUS AND UNUNUSUAL WEAPONS COULD BE PROHIBITED. AND WHAT HE REFERRED TO SPECIFICALLY IS MACHINE GUNS COULD BE PROHIBITED. SO IT’S VERY IMPORTANT RECOGNIZE THAT UNDER THE HELLER DECISION, MACHINE GUNS CAN BE PROHIBITED.>>THEY WERE IN THE FIREARMS ACT A LONG TIME AGO.>>YES.>>THEY HAVE BEEN PROHIBITED.>>YES, SENATOR. AND JUSTICE SALIA’S OPINION DID NOT DISTURB THAT LONGSTANDING REGULATION. IN FACT SPECIFICALLY IT REAFFIRMED THAT MACHINE GUNS COULD BE PROHIBITED. THE COURT IN HELLER UPHELD — OR STRUCK DOWN A DC BAN ON HANDGUNS. MOST OF WHICH ARE SEMIAUTOMATIC.>>LET ME INTERRUPT YOU. I THINK WE’RE ON TOTALLY DIFFERENT WAVE LENGTHS. I’M TALKING ABOUT YOUR STATEMENT ON COMMON USE. AS COMMON USE BEING A JUSTIFICATION. AND ASSAULT WEAPONS ARE NOT IN COMMON USE.>>AND JUSTICE SCALIA’S OPINION USED THAT PHRASE, AND I THINK THE NEXT SENTENCE OF THE OPINION TALKED ABOUT DANGEROUS AND UNUSUAL WEAPONS. AND THE COURT IN HELLER ITSELF, THE SUPREME COURT, STRUCK DOWN A DC BAN ON HANDGUNS. MOST HANDGUNS ARE SEMIAUTOMATIC. THAT’S SOMETHING THAT NOT EVERYONE APPRECIATES. AND THE QUESTION CAME BEFORE US, OF SEMIAUTOMATIC RIFLES, AND THE QUESTION WAS CAN YOU DISTINGUISH AS A MATTER OF PRECEDENT — THIS IS ALL ABOUT PRECEDENT FOR ME, TRYING TO READ EXACTLY WHAT THE SUPREME COURT SAID, AND IF YOU READ THE MCDONALD CASE, AND I CONCLUDED THAT IT COULD NOT BE DISTINGUISHED AS A MATTER OF LAW, SEMIAUTOMATIC RIFLES FROM 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. SO THAT SEEMS TO FIT COMMON USE AND NOT BEING A DANGEROUS AND UNUSUAL WEAPON. THAT WAS THE BASIS OF MY DEFENSE. IN A NUTSHELL, THE BASIS OF MY DISSENT WAS I WAS TRYING TO FOLLOW STRICTLY, CAREFULLY THE SUPREME COURT PRECEDENT.>>YOU’RE SAYING THE NUMBERS DETERMINE COMMON USE? COMMON USE IS AN ACTIVITY. IT’S NOT COMMON STORAGE OR POSSESSION. IT’S USE. SO WHAT YOU SAID WAS THAT THESE WEAPONS ARE COMMONLY USED. THEY’RE NOT.>>THEY’RE WIDELY POSSESSED IN THE UNITED STATES, SENATOR. AND THEY ARE USED AND POSSESSED. THE QUESTION IS ARE THEY DANGEROUS AND UNUSUAL? THEY’RE CERTAINLY DANGEROUS, ALL WEAPONS ARE DANGEROUS. ARE THEY UNUSUAL? AND GIVEN HOW PREVALENT THEY ARE IN THE UNITED STATES, IT SEEMED UNDER JUSTICE SCALIA’S TEST, IF YOU LOOK AT THE MAJORITY OPINION IN MCDONALD, THE SAME THING. I WANT REITERATE, THE SUPREME COURT MADE CLEAR THAT MACHINE GUNS CAN BE BANNED.>>LET ME SPEAK TO YOU. I’M TALKING ABOUT THE HELLER CASE. LET ME BE SPECIFIC. AND Y — YOU SPECIFICALLY ARGUED THAT IT WAS UNCONSTITUTIONAL TO DEFEND ASSAULT WEAPONS BECAUSE THEY ARE — TO BAN ASSAULT WEAPONS BECAUSE THEY ARE IN COMMON USE. THAT I BELIEVE IS YOUR DISSENT IN THE CASE.>>YES, AND I WAS REFERRING TO SOME KINDS OF SEMIAUTOMATIC RIFLES THAT ARE BANNED BY BC, AND WIDELY OWNED IN THE UNITED STATES. AND THAT SEEMED TO BE THE TEST THAT THE SUPREME COURT HAD SET FORTH IN THE HELLER AND MCDONALD CASES. IN OTHER WORDS IF A TYPE OF FIREARM IS WIDELY OWNED IN THE UNITED STATES. WHETHER I AGREE WITH THAT TEST OR NOT WAS NOT THE ISSUE BEFORE ME. I HAVE TO FOLLOW THE PRECEDENT OF THE SUPREME COURT AS IT’S WRITTEN. THAT’S WHAT I TRIED TO DO IN THAT CASE. IT’S A VERY 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, WHERE I GREW UP IN A CITY PLAGUED BY GUN VIOLENCE AND GANG VIOLENCE AND DRUG VIOLENCE. SO I FULLY UNDERSTAND AS I EXPLAINED IN THE OPINION THE IMPORTANCE OF THIS ISSUE. I SPECIFICALLY REFERENCED THAT POLICE CHIEF LINEAR’S GOALS OF REDUCING GANG AND GUN VIOLENCE WAS SOMETHING THAT I APPLAUDED BUT THAT I HAD TO FOLLOW THE PRECEDENT OF THE SUPREME COURT IN THAT CASE, AND AS I READ IT, THAT’S WHAT IT SAYS.>>HOW DO YOU RECONCILE WHAT YOU JUST SAID WITH THE HUNDREDS OF SCHOOL SHOOTINGS USING ASSAULT WEAPONS THAT HAVE TAKEN PLACE IN RECENT HISTORY? HOW DO YOU RECONCILE THAT?>>SENATOR, OF COURSE THE VIOLENCE IN THE SCHOOLS IS SOMETHING WE ALL DETEST AND WANT TO DO SOMETHING ABOUT. AND THERE ARE LOTS OF EFFORTS I KNOW UNDERWAY TO MAKE SCHOOLS SAFER. I KNOW AT MY GIRLS’ SCHOOL THEY DO A LOT OF THINGS NOW THAT ARE DIFFERENT THAN THEY DID JUST A FEW YEARS AGO IN TERM WAS TRYING TO HARDEN THE SCHOOL AND MAKE IT SAFER FOR EVERYONE. GUNS, HANDGUNS AND SEMIAUTOMATIC RIFLES ARE WEAPONS USED FOR HUNTING AND SELF-DEFENSE. BUT AS YOU SAY, YOU RIGHTLY SAY, THEY’RE USED IN A LOT OF VIOLENCE CRIMES AND CAUSE A LOT OF DEATHS. HANDGUNS ARE USED IN LOTS OF CRIMES THAT RESULT IN DEATH. THAT’S WHAT MAKES THIS ISSUE DIFFICULT. AS I SAID IN THE LAST TWO PAGES OF MY DISSENT IN HELLER, I FULLY UNDERSTAND THE GANG VIOLENCE, GUN VIOLENCE, DRUG VIOLENCE THAT HAS PLAGUED VARIOUS CITIES INCLUDING WASHINGTON DC. THIS WAS KNOWN AS THE MURDER CAPITOL OF THE WORLD FOR A WHILE, THIS CITY. AND THAT WAS A LOT OF HANDGUN VIOLENCE AT THE TIME. SO I UNDERSTAND THE ISSUE. BUT 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 T. AT THE END OF THE OPINION, I CITED JUSTICE KENNEDY’S TEXAS VERSUS JOHNSON QUOTE WHICH I READ YESTERDAY AS THE GUIDING LIGHT FOR THE LOWER COURT JUDGES AND ALL JUDGES.>>THE SENATE JUDICIARY COMMIT SEIN A BREAK NOW. THE INSURING EXPECTED TO RESUME IN JUST A FEW MINUTES. THIS IS THE SECOND DAY OF BRETT KAVANAUGH’S SUPREME COURT CONFIRMATION HEARING. THE SENATOR HAS YET TO QUESTION THE NOMINEE. LIKE THE OTHER MEMBERS OF THE COMMITTEE THROUGHOUT THE DAY, THEY’LL EACH HAVE 30 MINUTES.>>IN A 1999 INTERVIEW WITH THE CHRISTIAN SCIENCE MONITOR ABOUT THE RICE CASE, YOU DISCUSSED WITH SENATOR — “THIS CASE IS ONE MORE STEP ALONG THE WAY IN WHICH I SEE AS AN INEVITABLE CONCLUSION WITHIN THE NEXT TEN TO 20 YEARS WHERE THE COURT SAYS WE ARE ALL ONE RACE IN THE EYES OF GOVERNMENT.” IT’S BEEN ABOUT 20 YEARS NOW, ABOUT SIX MONTHS AWAY. DO YOU THINK THAT YOU WERE WRONG AT THAT POINT, THAT RACIAL DISCRIMINATION IN AMERICA WOULD BE OVER BY 2019?>>I THINK, SENATOR, THAT WAS AN ASOPERATIONAL COMMENT — ASPIRATIONAL COMMENT, AND ONE IN YOUR POINT, THAT THE MARCH FOR RACIAL EQUALITY IS NOT FINISHED AND WE STILL HAVE A LOT TO DO AS A COUNTRY.>>BUT I WANT TO KNOW WHAT YOU WERE THINKING IN 1999 THAT WOULD MAKE YOU MAKE SUCH A BOLD COMMENT, THAT IN TEN YEARS THE COURT CAN VIEW US ALL AS ONE RACE? WHAT WAS GOING ON IN THE 1990s THAT LED YOU TO HAVE THAT BELIEF?>>HOPE.>>OKAY. WE’RE BOTH AWARE OF WHERE THE TRENDS WERE GOING IN THE 1990s. THIS IS A PERIOD WHERE THE DRUG WAR WAS IN FULL BLAIR. THE PRISON POPULATION EXPLODED SINCE 1980. UP 800% IN THE FEDERAL PRISON POPULATION. THE MASSIVE INCREASES IN RACIAL DISPARITIES OF INCARCERATIONS. AND BLACKS STATUTE ROUGHLY 13% OF DRUG USERS, BUT 46% OF THOSE THAT WERE BEING JAILED FOR DRUG OFFENSES, EVEN OUR SCHOOLS IN THE 1990s WERE BECOMING MORE SEGREGATED. YOUR BRIEF IN THE CASE INVOKES JUSTICE SCALIA’S ARGUMENT THAT WE SHOULD BE “ONE RACE.” AND LET ME GO ALONG WITH THE SCALIA QUOTE. HE SAID “THE GOVERNMENT CAN NEVER HAVE, NEVER HAVE A COMPELLING INTEREST IN IMPLEMENTING RACE-CONSCIOUS PROGRAMS THAT SEEK TO ADDRESS THIS NATION’S WRETCHED HISTORY OF RACIAL DISCRIMINATION.” HE SAID NEVER. HE SAID THAT RACE-CONSCIOUS PROGRAMS “ARE RACIAL ENTITLEMENT.” DO YOU THINK THAT SOMEONE WHO WANTS TO REMEDY THE FACT THAT THEY COULD NOT GET A LOAN FROM THE FAIR HOUSING ADMINISTRATION BECAUSE OF THE COLOR OF THEIR SKIN IS RACIAL ENTITLEMENT? OR ARE THEY SEEKING RACIAL JUSTICE? DO YOU THINK A PERSON WHO TRIES TO REMEDY THE FACT THAT THEY WERE DENIED THE CHANCE TO GO TO COLLEGE UNDER THE GI BILL BECAUSE OF THE COLOR OF THEIR SKIN IS SEEKING RACIAL ENTITLEMENT? OR ARE THEY SEEKING RACIAL JUSTICE? TO BE SPECIFIC WITH SCALIA, DO YOU AGREE WITH JUSTICE SCALIA WHERE YOU RENT IN YOUR BRIEF THAT IT’S NEVER PERMISSIBLE FOR THE GOVERNMENT TO USE RACE TO TRY TO REMEDIATE PAST DISCRIMINATION? TO TRY TO ACHIEVE JUSTICE?>>SENATOR THAT WAS A BRIEF FOR A CLIENT FIRST OF ALL. SO I WAS NOT SAYING SOMETHING IN MY OWN VOICE PARTICULARLY THERE.>>IF YOU CAN CORRECT YOU SAYRE, YOU SAID IT WAS A BRIEF FOR A KLEIN. BUT YOU SEEMED TO INVOKE SKWALIA’S ONE RACE THEORY QUITE OFTEN. TO A REPORTER. YOU MENTIONED IT IN THE WALL STREET JOURNAL OPED. YOU WROTE AROUND THE SAME TIME AND CITED HIS OPINION IN THIS BRIEF. ARE YOU SAYING YOU DO NOT SHARE JUSTICE SCALIA’S BELIEF ABOUT THIS IDEA THAT PEOPLE WHO ARE SEEKING TO ADDRESS PAST DISCRIMINATION, PAST HARM, THAT THEY ARE SEEKING RACIAL ENTITLEMENT?>>I THINK FIRST OF ALL THE SUPREME COURT PRECEDENT ALLOWS RACE-CONSCIOUS PROGRAMS IN CERTAIN CIRCUMSTANCE. SO THE PRECEDENT TO THE SUPREME COURT AS YOU KNOW IS DIFFERENT. I WAS WRITING A BRIEF TRYING TO CITE ALL THE PRINCIPLES FROM THE DIFFERENT CASES THAT WOULD SUPPORT THE BRIEF. BUT TO YOUR POINT, WHEN YOU’RE TRYING TO REMEDY PAST DISCRIMINATION AS A GENERAL PROPOSITION, YOU’RE SEEKING RACIAL EQUALITY AND SEEKING TO REMEDY PAST DISCRIMINATION AND THE LINGERING EFFECTS.>>SO YOU DISAGREE WITH SCALIA? HE SAYS IT’S NEVER PERMISSIBLE FOR THE GOVERNMENT TO USE RACE TO TRY TO REMEDIATE PAST DISCRIMINATION TO ACHIEVE JUSTICE?>>THE SUPREME COURT LAW, I KNOW WHAT THE PRECEDENT IS, I KNOW WHAT THE LAW IS, I I’M ASKING WHAT ASKING WHAT YOU BELIEVE. THAT IT IS NEVER PERMISSIBLE GOVERNMENT TO USE RACE TO REMEDIATE PAST DISCRIMINATION TO ACHIEVE JUSTICE?>>THAT POSITION HAS NEVER BEEN ADOPTED.>>I’M ASKING IF YOU BELIEVE, SIR, NOT THE SUPREME COURT.>>THE TERM I USED WAS THAT WHAT YOU’RE SEEKING IS EQUALITY.>>RIGHT.>>SO IF YOU’RE SEEKING EQUALITY, IS IT NEVER PERMISSIBLE FOR GOVERNMENT TO USE RACE? TO REMEDIATE PAST DISCRIMINATION?>>THERE ARE A COUPLE THINGS THAT THE SUPREME COURT HAS POINTED OUT IN ITS CASE.>>AND AGAIN, MAYBE I CAN APPROACH THIS IN A DIFFERENT WAY, THE AFTERMATH OF KATRINA, IN A CASE BROUGHT BY PLAINTIFFS IN NEW ORLEANS WHO CHALLENGE THE WAY GOVERNMENT PROVIDED GRANTS TO HOMEOWNERS AS HAVING A DISCRIMINATOR IMPACT AFRICAN AMERICAN, YOU JOINED THE MINORITY IN DENYING THE RELIEF. IF THE FINAL HAD SHOWN THAT THE GRANT PROGRAM SYSTEMATICALLY DISFAVORED AFRICAN AMERICAN, WOULD A GOVERNMENT EFFORT TO REMEDY THAT DISPARITY BE UNCONSTITUTIONAL? DO YOU BELIEVE THAT ALL SUCH EFFORTS THAT USE — THE GOVERNMENT USING THOSE EFFORTS AMOUNT TO RACIAL ENTITLEMENT? I’M TRYING TO FIGURE OUT IF YOU AGREE WITH THAT POINT THAT SCALIA IS MAKING.>>FIRST OF ALL I APPROACH QUESTIONS LIKE YOU’RE ASKING WITH A RECOGNITION OF TWO THINGS. ONE THE HISTORY OF OUR COUNTRY, AND TWO THE REAL WORLD TODAY. AND I TRY AS BEST I CAN TO UNDERSTAND BOTH THE HISTORY OF OUR COUNTRY ON THAT ISSUE AND THE REAL WORLD TODAY. SO I’M COMING AT IT FROM THAT PERSPECTIVE. YOU’RE ASKING A QUESTION I THINK ABOUT SPECIFIC REMEDIES FOR DISCRIMINATION, AND THERE’S A LOT. I’M A JUDGE AS YOU KNOW SO I HAVE TO FOLLOW PRECEDENT. AND THE PRECEDENT ALLOWS –>>AGAIN, I KNOW WHAT PRECEDENTS ARE, ESPECIALLY WITH A LOT OF VERY IMPORTANT — I’M ASKING ABOUT YOUR OPINIONS BECAUSE YOUR OPINIONS MATTER. IN APRIL 2003, YOU WROTE REGARDING A PROGRAM DESIGNED TO BENEFIT NATIVE AMERICANS SMALL BUSINESSES BY SAYING THE DESIRE TO IMPLEMENT SOCIETAL DISCRIMINATION IS NOT A COMPELLING INTEREST.>>THAT’S WHAT THE SUPREME COURT HAS SAID.>>AND THE SUPREME COURT SAYS THAT THE DESIRE TO REMEDY SOCIETAL DISCRIMINATION IS NOT A COMPELLING INTEREST?>>THE SUPREME COURT HAS — LET’S GO TO BACHMAN FOR EXAMPLE.>>I’M GONNA GET TO BACHMAN. THIS IS WHAT YOU SAID, THAT RACE CAN NEVER BE USED TO REMEDIATE CLEARLY PROVEN DISCRIMINATION. CLEARLY PROVEN DISCRIMINATION. IT’S USING AN ABSOLUTE. DO YOU STILL BE THAT IT CAN NEVER BE USED?>>THE SUPREME COURT HAS SAID IT CAN BE.>>I KNOW THE SUPREME COURT. WHAT DO YOU BELIEVE, SIR? YOU’VE DECIDED NUMEROUS TIMES.>>I HAVE TROUBLE DEPARTING FROM THE SUPREME COURT PRECEDENT AND SAYING –>>BUT YOU WERE REPLYING ABOUT IT IN E-MAILS, IN WALL STREET JOURNAL ARTICLES. YOU JUST CAN’T SAY RIGHT NOW WHAT YOU BELIEVE.>>A COUPLE THINGS, SENATOR. JUST TO BACK UP. THAT WAS WRITTEN FOR A CLIENT IN THE E-MAIL YOU’RE READING AS WELL.>>IT WAS THE CHRISTIAN SCIENCE MONITOR. NOW GETTING TO SOME OF THE THINGS YOU WERE TALKING ABOUT. THE EXPLORE HAS SAID FOR DECADES THAT INSTITUTIONS OF HIGHER EDUCATION HAVE A COMPELLING INTEREST IN STUDENT BODY DIVERSITY AND THAT RACE CAN BE USED AS A FACTOR. NOT THE ONLY FACTOR BUT A FACTOR IF IT IS DONE SO IN A WAY THAT IS NARROWLY TAILORED TO SERVE THAT INTEREST.>>I AM FOLLOWING THE PRECEDENT OF THE — SET BY THE EIGHT JUSTICES CURRENTLY SITTING ON THE SUPREME COURT. AND TO PUT IT IN THE TERMS OF JUSTICE KEGAN, IT WOULD BE IBAPPROPRIATE TO GIVE A THUMBS — INAPPROPRIATE TO GIVE A THUMBS UP OR THUMBS DOWN.>>THE DISTINCTION BETWEEN YOU –>>GORSUCH.>>AND I’M GONNA BE USING THAT DISTINCTION WITH MANY OF MY COLLEAGUES. NONE OF THOSE NOMINEES VOICED PERSONAL OPINIONS THAT GOVERNMENT SHOULD REFUSE TO DEFEND THESE KIND OF PROGRAMS. THE CASE THAT INVOLVED BENEFITS TO MINORITY BUSINESSES, YOU WROTE THAT THE GOVERNMENT SHOULD FILE A BRIEF THAT THESE PROGRAMS ARE UNCONSTITUTIONAL. YOU WROTE “THIS IS MY PERSONAL OPINION.” YOU SAID THAT THEN. MY QUESTION IS DO YOU STILL THINK A DIVERSE STUDENT BODY IS A COMPELLING INTEREST?>>THE ADDERAN CASE IS IN THE CONTEXT OF CONTRACTING. THE BACHMAN CASE –>>YOU THINK THOSE CASES, USING RACE TO REMEDY IS UNCONSTITUTIONAL.>>IN LIGHT OF THE PRECEDENT OF THE SUPREME COURT REPRESENTING A CLIENT, IN THAT CASE, AND I GO THROUGH I THINK THE E-MAIL YOU’RE REFERRING TO I GO THROUGH WE SHOULDN’T — THEY SHOULD MAKE A RECOMMENDATION FIRST THAT THIS SHOULD NOT BE A WHITE HOUSE DICTATED ANSWER. AND THE SOLICITOR GENERAL IS ORDINARILY I THINK YOU’RE REFERRING TO THE E-MAIL I’M THINKING OF. IN ANY EVENT, I THINK AS YOU KNOW, AND I JUST WANT TO REITERATE, THERE’S PRECEDENT IN THE HIGHER EDUCATION CONTEXT IN THE CONTRACTING CONTEXT THAT ARE SOMEWHAT DISTINCT. AND THOSE PRECEDENTS HAVE BEEN APPLIED BY JUDGES. AND MY RECORD ON RACE DISCRIMINATION CASES, I’M HAPPY TO TALK ABOUT MY CASES.>>BUT YOU’RE NOT HAPPY TO TALK TO ME ABOUT THE OPINIONS YOU EXPRESSED IN THE PAST.>>THAT’S WHAT I WROTE THEN AS A LAWYER FOR A CLIENT.>>BUT YOU SAID THAT IS IN FACT MY PERSONAL OPINION. YOU EXPRESSED A PERSONAL OPINION ON THIS ISSUE NOW. DO YOU STILL HOLD THAT SAME OPINION NOW?>>YOU’RE TAKING I BELIEVE RESPECTFULLY PERSONAL OPINION OUT OF CONTEXT. PERSONAL OPINION ABOUT WHAT THE GOVERNMENT POSITION, THE PERSONAL RECOMMENDATION. BECAUSE I SAID THE DISTINCTION THERE IS I SAID THE SOLICITOR GENERAL SHOULD FIRST MAKE A RECOMMENDATION. THEN THE WHITE HOUSE SHOULD RESPOND. IT WAS NOT A PERSONAL OPINION KAVANAUGH. IT WAS WHAT THE GOVERNMENT’S POSITION RECOMMENDATION WOULD BE BASED ON PRESIDENT BUSH’S –>>SO YOU WERE PRETTY CLEAR THERE.>>WELL, I DON’T WANT TO –>>I WANT TO ASK YOU A SIMPLE DIRECT QUESTION. DO YOU THINK HAVING A DIVERSE STUDENT BODY IS A COMPELLING GOVERNMENT INTEREST? DO YOU BELIEVE THAT? IT’S NOT A COMPLICATED QUESTION. DO YOU BELIEVE HAVING A DIVERSE STUDENT BODY IS A COMPELLING GOVERNMENT INTEREST?>>THE SUPREME COURT HAS SAID SO. AND MY EFFORTS TO PROMOTE DIVERSITY –>>>TO GET ON THE COURT AND HAVE THE ABILITY TO CHANGE THOSE PRECEDENTS. YOUR WORDS, I JUST WANT TO ASK YOU ABOUT YOUR WORDS. YOU HAVEN’T ANSWERED MY QUESTION. AND I UNDERSTAND WHAT YOU’RE GONNA STICK TO THAT. YOU’VE ALSO WRITTEN THAT AN EFFORT DESIGNED TO BENEFIT MINORITY BUSINESSES, TO TRY TO GIVE THEM A FAIR SHAKE BECAUSE THEY HAD BEEN HISTORICALLY EXCLUDED, YOUR WORDS, USED A LOT OF LEGALISMS AND DISGUISES TO MASK WHAT IS IN REALITY A NAKED RACIAL SETASIDE.>>WHAT ARE YOU READING FROM?>>AN E-MAIL DATED AUGUST 8TH. YOUR WORDS.>>CAN I GET A COPY IT WAS?>>YOU CERTAINLY CAN. LET’S ASK YOU WHAT YOU BELIEVE NOW. DO YOU BELIEVE THE GOVERNMENT EFFORTS TO PROMOTE RACIAL DIVERSITY ARE A NAKED RACIAL SET-ASIDE?>>THE GOVERNMENT EFFORTS TO PROMOTE DIVERSITY IN HIGHER EDUCATION CONTEXTS ARE CONSTITUTIONAL. AND I’VE MADE CLEAR MY OPINION PERSONAL EFFORTS TO PROMOTE –>>YOU REFERRED TO IT IN THE PAST MINORITY BUSINESSES BEING EXCLUDED.>>I DON’T HAVE THE E-MAIL.>>YOU DON’T REMEMBER USING THE TERM RACIAL SET-ASIDE?>>I’D LIKE TO SEE E-MAIL IF I’M GETTING QUESTIONED ABOUT AN E-MAIL.>>I’M GONNA ASK MY STAFF TO PROVIDE THAT WHILE I MOVE ON.>>I HAVE PROMOTED DIVERSITY IN LOCAL HIRING AND MADE A BIG DIFFERENCE IN THAT.>>I’M GRATEFUL FOR IT. YOU’VE TOLD ME A LOT OF THINGS ABOUT THE DIVERSITY YOU’VE PERSONALLY PRACTICED IN YOUR OWN LIFE. I REALLY APPRECIATE THAT. I’M NOT ASKING YOU ABOUT THAT. YOU’RE SEEKING A POSITION ON THE HIGHEST COURT IN THE LAND THAT’S GONNA AFFECT MILLIONS OF PEOPLE. YOU’VE EXPRESSED OPINIONS ABOUT THESE SUBJECTS TO THE MEDIA AND THE PRESS IN SPEECHES, PAST E-MAILS BUT YOU’RE NOT WILLING TO SAY IF YOU STILL HOLD THOSE POSITIONS IF YOU HELD BEFORE. YOU ONCE DISCUSSED THE ISSUE OF RACIAL PROFILING WITH YOUR COLLEAGUES IN THE BUSH WHITE HOUSE.>>CAN I SEE THE E-MAIL?>>YES. I WILL GET YOU THE E-MAIL.>>I CAN’T ANSWER IF I –>>I’M GONNA ANSWER YOU ABOUT YOUR OPINIONS NOW. I’LL PROVIDE THE E-MAIL. I’M MORE INTERESTED IN YOUR VIEWS RIGHT NOW. THERE’S A DEBATE GOING BACK AND FORTH, AND ONE OF YOUR COLLEAGUES SAID THERE’S A THOUGHT IN THE ADMINISTRATION THAT IF THE RACE OF RACE RENDERS SECURITY MEASURES EFFECTIVE, USING RACE RENDERS SECURITY MEASURES EFFECTIVE, THEN PERHAPS WE SHOULD BE USING IT IN THE INTERESTS OF SAFETY NOW AND IN THE LONG-TERM. AND SUCH OKAYS YOUR COLLEAGUE SAID MAY BE LEGAL UNDER SUCH CASES.>>IT SOUNDS LIKE YOU’RE QUOTING SOMEONE ELSE.>>I AM QUOTING SOMEBODY ELSE. [ ALL TALKING ]>>I’M NOT ATTRIBUTING IT TO YOU. THAT WAS YOUR COLLEAGUE. YOU DID NOT RESPOND IN AN E-MAIL BY DENOUNCING PROFILING AND EXPRESSING OUTRAGE RELYING –>>POINT OF ORDER. [ ALL TALKING ]>>MR. CHAIRMAN, COURTESY TO THE WITNESS, WE JUST SAW AN EXAMPLE OF THAT WHERE I BELIEVE THAT THE WORDS THAT WERE BEING REPEATED WERE WORDS IN AN E-MAIL AUTHORED BY JUDGE KAVANAUGH. IF WE COULD SUSPEND FOR LONG ENOUGH TO HAVE THE DOCUMENTS AVAILABLE TO THE JUDGE SO THAT THEY CAN BE ANSWERED IN PROPER CONTEXT. IS THAT AN APPROPRIATE REQUEST?>>DO YOU HAVE ANY OBJECTIONS?>>I DO HAVE AN OBJECTION. IF MY COLLEAGUE HAS AN ISSUE WITH THAT AGENDA, I THINK HE SHOULD BRING IT UP AFTER MY TIME.>>LET’S PROCEED.>>YOU GENERALLY FAVORED RACE-NEUTRAL SECURITY MEASURES. BUT YOU THOUGHT THERE WAS AN INTERIM QUESTION OF WHETHER THE GOVERNMENT SHOULD USE RACIAL PROFILING BEFORE A SUPPOSEDLY RACIAL SYSTEM COULD BE DEVELOPED SOMETIME IN THE FUTURE. IT’S NOT THAT YOU’RE OKAY WITH USING RACE TO SINGLE OUT SOME AMERICANS FOR EXTRA SECURITY MEASURES BECAUSE THEY LOOK DIFFERENT, BUT YOU’RE NOT OKAY WITH USING RACE TO PROMOTE DIVERSITY AND EQUAL OPPORTUNITY FOR PAST DOCUMENTED RACIAL INEQUALITY.>>IT SOUNDS LIKE I ADJUSTED THE RACIAL PROFILING TERM. WHAT IS THE DATE OF THE E-MAIL?>>JANUARY 17TH, 2002. HAVE YOU EVER EXPRESSED AN OPENNESS TO A TEMPORARY CIRCUMSTANCE LIKE THIS E-MAIL SEEMS TO INDICATE, IN THE INTERIM QUESTION OF USING RACIAL PROFILING? HAVE YOU EVER SUGGESTED THAT?>>I’D LIKE TO SEE THE E-MAIL.>>I WILL PROVIDE THE E-MAIL SIR.>>IT SOUNDS FROM WHAT YOU READ LIKE I REJECTED THE CONCEPT. BUT I’LL LOOK AT THE E-MAIL.>>IT SEEMS TO ME THAT YOU WERE OPEN TO THE CONCEPT CLEARLY. THIS IS IMPORTANT BECAUSE RIGHT NOW IN THE NATION THERE ARE PRACTICES, AND I THINK YOU’RE AWARE THAT OVERWHELMINGLY THEY TARGET AFRICAN AMERICANS AND OTHER PEOPLE OF COLOR. I’VE READ OPINIONS SUCH AS YOURS IN THE UNITED STATES VERSUS WASHINGTON THAT UPHELD A SEARCH “IN A NEIGHBORHOOD IN SOUTHEAST WASHINGTON DC” THAT YOU CALLED CRIME-PLAGUED, AND IN THE DISTRICT OF COLUMBIA WHERE YOU WOULD HAVE PROTECTED POLICE FROM LIABILITY WHEN THEY MADE WARRANTLESS ARRESTS AT A HOUSE THAT WASN’T “EAST OF THE ANCOSSIA RIVER.”>>I KNOW THOSE ARE PREDOMINANTLY BLACK AREAS. I UNDERSTAND IT’S CASE LAW THAT SAYS POLICE CAN JUSTIFY SOME ACTIONS BY SAYING THEY WERE IN AREAS THAT WERE HIGH-CRIME. BUT YOU KNOW HOW SOME OF THESE OPINIONS USING THE TYPE OF RACIALLY CODED LANGUAGE CAN FURTHER THE DISPARATE TREATMENT OF PEOPLE OF COLOR WITH THE POLICE. SO THE WAY I SEE IT, AND I’LL GIVE YOU A CHANCE TO RESPOND, THAT YOU’RE WILLING TO CONSIDER USING RACIAL PROFILEING BUT YOU’RE HOSTILE TO THE USE OF RACE WHEN IT IS USED TO PROMOTE DIVERSITY AND REMEDIATE PAST PROVEN DISCRIMINATION?>>CAN I GET 60 SECONDS?>>GO AHEAD.>>ON THE WHIDBEY CASE THERE WAS A CALL TO THE POLICE THAT WAS NOT THE POLICE PATROLLING THE NEIGHBORHOOD. THE SUPREME COURT REVERSED THE MAJORITY DECISION THAT HAD BEEN WRITTEN BY OTHER PEOPLE THAT I DISSENTED FROM. THEY REVERSED IT 9 TO 0 THIS PAST TOMORROW. AND I WAS CITED IN THE SUPREME COURT — AND THE SUPREME COURT AGREED WITH THE APPROACH THAT I HAD SUGGESTED 9-0. ON THE GENERAL CONCEPT, WHEN I HAVE DISCUSSED THIS IN OUR MEETING, I’M VERY AWARE OF THE REALITY AND PERCEPTION EVER TARGETED POLICING OR POLICE ACTIVITY IN MINORITY NEIGHBORHOODS. AND I’VE TRIED AS BEST I CAN TO BE AWARE AND UNDERSTAND THAT, AND WHEN I TALKED ABOUT THAT, AND THE CASE IN MY VIEW HAD NOTHING TO DO WITH THAT ISSUE.>>I TRIED TO GIVE YOU SOME TIME THERE. THIS IS WHAT I’M HEARING. YOU KNOW AND I APPRECIATE YOUR RHETORIC ON THESE MATTERS. BUT YOU’RE GOING TO BE A JUDGE ON THE SUPREME COURT IF YOU ARE CONFIRMED. AND HAVE A POWER TO MAKE MASSIVE DIFFERENCES IN OUR COUNTRY. AND THESE ARE REAL ISSUES. SO I ASK YOU WITH THE FISHER CASE, IF IT WAS RIGHTLY DECIDED AND YOU REFUSED TO ANSWER. I ASKED YOU AGAIN WHETHER YOU BELIEVE DIVERSITY IS A COMPELLING INTEREST. YOU DIDN’T ANSWER THAT, SIR. THAT’S NOT GOOD ENOUGH FOR A NOMINEE OF THE HIGHEST COURT, PARTICULARLY ONE WHO HAS EXPRESSED, AND I’LL PROVIDE YOU WITH THESE E-MAILS. FROERD AS WELL OPPOSITION TO EFFORTS TO ADDRESS SYSTEMIC PROVABLE DISCRIMINATION, AND YET YOU ALSO HAVE AN OPENNESS TO RACIAL PROFILING. AND I’LL PROVIDE THAT E-MAIL. THE CASES ARE RAISED ABOUT ADDRESSING DOCUMENTED SYSTEMIC STRUCTURAL IN”IN OUR — INEQUALITY IN OUR COUNTRY. THIS IS ABOUT THE FACT THAT CHILDREN IN THIS COUNTRY STILL ENCOUNTER A DIFFERENCE OF EXPERIENCE IN AMERICA BASED ON THE COLOR OF THEIR SKIN AND NOT THE CONTENT OF THEIR CHARACTER. THEY ARE MORE LIKELY TO BREATHE DIRTY AIR AND DRINK DIRTY WATER, THEY’RE MORE LIKELY TO BE STOPPED AND SHOT BY THE POLICE AND BECOME ENTRAPPED IN THE CRIMINAL JUSTICE SYSTEM. EVEN I HAVE TROUBLE UNDERSTANDING IN YOUR EYES HOW AMERICA COULD BE MONTHS AWAY OR A FEW YEARS AWAY FROM BECOMING ONE RACE IN THE EYES OF THE LAW. WE’RE A GOOD COUNTRY WITH GREAT PEOPLE, AND WE’RE GREAT PEOPLE. PEOPLE OF ALL RACES IN AMERICA HAVE WORKED TOGETHER TO MAKE PROGRESS. BUT YOU’VE SAID IT YOURSELF, WE HAVE SO MUCH WORK STILL TO DO. THE SUPREME COURT SEAT PLAYS A VITAL ROLE IN THAT WORK. THIS IS A GOOD GENERATION PAST WITH CASES LIKE BROWN. VOTING RIGHTS IS A CROWN JEWEL OF THE CIVIL RIGHTS MUSEUM. IT’S DESIGNED TO PREVENT STATES FROM PUTTING UP BARRIERS FOR THE RIGHTS OF AFRICAN AMERICANS TO VOTE. IN THE 21ST CENTURY, VOTER I.D. LAWS WHICH WE’RE SEEING MORE AND MORE, MANY CONSIDER THEM THE MODERN DAY EQUIVALENT OF POLL TAX. INPERSON VOTER FRAUD IS INCREDIBLY RARE. YOU’RE MORE LIKELY TO BE STRUCK BY LIGHTNING IN AMERICA THAN FIND A PERSON COMMITTING INPERSON VOTER FRAUD. YOU WROTE AN OPINION THAT SOUTH CAROLINA VOTER I.D. LAW THAT YOU SAID YOU WERE PROUD OF DECISION. AND I HEARD YOU SAY HERE I’M TAKING YOUR WORDS THAT YOU’RE PROUD OF THIS DECISION, BUT YOU WERE AWARE IN TRIAL THAT THE AUTHOR OF THE SOUTH CAROLINA VOTER I.D. LAW ADMITTED THAT HE RECEIVED AN E-MAIL FROM A SUPERIORITY OF THE BILL THAT SAID AFRICAN AMERICANS, THAT SAID IF AFRICAN AMERICANS WERE OFFERED A $100 REWARD FOR GETTING A VOTER I.D. IT WOULD BE “LIKE A SWARM OF BEES GOING AFTER WATERMELONS.” IN RESPONSE TO THAT RACIST E-MAIL, THE AUTHOR WROTE “AMEN, ED.” THANK — YOU WERE ALSO AWARE THAT BASED ON THE IN EVIDENCE THAT CASE, THAT MINORITY VOTERS IN SOUTH CAROLINA WERE 20% MORE LIKELY THAN WHITE REGISTERED VOTERS TO HAVE A VALID VOTER I.D. SO HOW COULD YOU HAVE CONCLUDED THAT THE VOTER I.D. LAW WOULD NOT HAVE A DISPARATE IMPACT ON MINORITY VOTERS AND POOR VOTERS IN GENERAL? IF A REGISTERED VOTER DIDN’T HAVE A PHOTO I.D., ISN’T IT TRUE THAT THEIR OPTION OFFICE WRITE OUT A FORM STATEMENT THAT WOULD EXPOSE THEM OF CRIMINAL PENALTIES? AND ONLY THEN THEY COULD VOTE ON A PROVISIONAL BALLOT?>>TRUE?>>THE DECISION WAS UNANIMOUS SCOMOINED BY AN APPOINTEE OF PRESIDENT CLINTON FROM JUDGE BASE, PRESIDENT BUSH APPOINTEE, BUT IT WAS A UNANIMOUS DECISION. WE BLOCKED IMPLEMENTATION OF THE SOUTH CAROLINA VOTER I.D. LAW FOR THE 2012.>>YOU’RE TELLING ME THINGS I KNOW. THESE ARE YOUR VIEWS ON THIS. COULDN’T YOU SEE THAT THIS WAS GONNA PROVIDE AN IMPEDIMENT AND IMPACT AFRICAN AMERICANS? COULDN’T YOU SEE THE PROBLEMS THIS WOULD CREATE?>>THAT’S WHY WE SAID THAT THE REASONABLE IMPEDIMENT PROVISION COULD NOT JUST BE THE FORM THEY PREPARED. BUT WE ESSENTIALLY SAID WHAT WOULD HAVE TO OCCUR –>>AND YOU SAID YOU WERE PROUD OF THE REASONABLE IMPEDIMENT PROVISION. THAT’S THE POINT WE HAD TO STOP. SOUTH CAROLINA TRIED TO ENACT THIS LAW. THEY WOULDN’T DISENFRANCHISE MINORITY VOTERS. THE PEOPLE ENACTED THIS LAW, THEY REALIZED THEY HAD TO MAKE CHANGES TO IT. YOU REMEMBER THIS. THEY CREATED A SECOND CLASS OF VOTERS SO IT WAS OUT AN I.D. THEY HAD TO GO TO A SEPARATE LINE, FILL OUT A FORM, WAIT FOR AN ATTORNEY OR COWORKTORY WITNESS THAT, AND THEN AFTER ALL THAT, THEY HAD TO CAST A PROVISIONAL BALLOT THAT MAY NOT HAVE COUNTED AT ALL. AND I APPRECIATE I SAYING THIS, BECAUSE WHAT LOOKS GOOD ON PAPER MAY FALL APART IN PRECEDENT.>>I THINK I SAID SENATOR BUT YES.>>I’M SORRY JUDGE. [ LAUGHTER ]>>CAN I SHOW YOU WHAT WAS UP IN SOUTH CAROLINA POLLING PLACES? YOU CAN SEE THIS SIGN. LOOK AT THIS SIGN. THIS IS WHAT PEOPLE WITHOUT A PHOTO I.D. WOULD HAVE SEEN. THIS IS CONFUSING AND INTIMIDATING. IT DOESN’T SHOW — THERE WERE FEW CALLS, THE REASONABLE IMPEDIMENT OPTION THEY HAD. DO YOU SEE HOW THE POSTER BOARD MIGHT NOT BE VERY MUCH — I DON’T KNOW IF YOU CAN SEE ANY REASONABLE PROV ASPECT ON THIS. DOESN’T IT MATTER THAT THE AVERAGE VOTER SEEING THIS COULD BE INTIMIDATED BY THIS PROCESS?>>THAT’S WHY I SAID IN THE LAST PARAGRAPH, THE OPINION WHAT LOOKS GOOD ON PAPER MAY FALL APART IN PRACTICE. AND WHAT WE DID IN THE DECISION IS WE SAID YOUR CONCERN, I WAS CONCERNED ABOUT THE SAME THING YOU’RE ASKING ABOUT HERE WHEN I WAS QUESTIONING THE LAWYERS AT ORAL ARGUMENT. AND WE SAID THE PROPOSED REASONABLE IMPEDIMENT FORM WASN’T GOOD ENOUGH. AND THAT THERE HAD TO BE A CATCH-ALL BOX WHERE YOU COULD PUT IN ANY REASON. AND WE LISTED ALL REASONS.>>THIS IS THE RESULT. AND I WANT TO TALK TO YOU ABOUT SOMEBODY FROM A DIFFERENT GENERATION, THE GREATEST GENERATION. THEY DID TRY TO GET A VOTER I.D. UNDER THE LAW THAT YOU WERE ESTABLISHING THAT WAS UPHELD. A 92-YEAR-OLD SOUTH CAROLINIAN NAMED LARRY BUTLER. A MILITARY VETERAN AND A PASTOR OF THE LORD. HE VOTED IN THE 2010 ELECTION BUT IN AN ATTEMPT TO GET A PHOTO I.D., HE HAD TO CHASE DOWN PAPERWORK FROM HIS HIGH SCHOOL RECORDS, THEN GO GET HIS BIRTH CERTIFICATE, COURT RECORD, HE WENT TO THE DMV, THE OFFICIAL BIBLE RECORDS OFFICE, AND THE COURT. AND AFTER ALL THAT, HE STILL WAS HAVING TROUBLE. HE DO YOU KNOW GET A VALID PHOTO I.D. ACCORDING TO THE STUDY BY THE HARVARD LAW SCHOOL, THE COST OF HIS FILING EFFORTS WERE $36. NOT ACCOUNTING FOR HIS TIME. MANY PEOPLE CALL THIS A MODERN DAY POLL TAX. DO YOU KNOW WHAT THE INFAMOUS POLL TAX WAS IN SOUTH CAROLINA IN 1895? DO YOU KNOW HOW MUCH IT WAS? THE>>THE EXACT AMOUNT? I DO NOT.>>IT WAS $1. THAT WAS THE POLL TAX THAT YOU AND I THINK IS DESPICABLE AND DISGUSTING. WHICH IS ROUGHLY $30 TODAY. LESS THAN WHAT IT COST A VETERAN PASTOR, LARRY BUTLER, LESS THAN WHAT HE INOCCURRED TRYING TO — INCURRED TRYING TO GET A LEGAL VOLT AFTER THE 2007 LAW. AND HOLDING A PRESS CONFERENCE WITH THE GOVERNOR INTERVENING, GIVING HIM A SPECIAL DISPENSATION. SO IT’S THIS GREAT GENERATION WHERE BLACK FOLKS AND WHITE FOLKS IN THIS COUNTRY JOINED TOGETHER. THEY FOUGHT, BLED, DIED, DIEING FOR VOTING — BEFORE VOTING RIGHT, THEY GREW UP IN A TIME WHEN STATES LIKE SOUTH CAROLINA ROUTINELY PLACED THESE BURDENS ON THE RIGHT TO VOTE AND MADE IT DANGEROUS TO CAST THIS VOTE. I DON’T KNOW IF YOU SEE THAT THIS IS IN FACT NOT MUCH DIFFERENT IN TERMS OF THE COST TO THIS PERSON OF TRYING TO ULTIMATELY PAY FOR WHAT WAS ANESQUIVE POLL TAX. LET ME JUST CONCLUDE, THIS ISN’T COMPLICATED TO ME, SIR. THIS CREATES STRUCTURAL BARRIERS THAT SYSTEMICALLY DISENFRANCHISE PEOPLE OF COLOR AND POOR PEOPLE. I’M CONCERNED THAT A PERSON BELIEVES THAT WE ARE ALL ONE RACE IN THE EYES OF GOVERNMENT, A PERSON WHO BELIEVES THAT THAT’S WHAT RACIAL JUSTICE IS, IN YOUR WORDS NAKED RACIAL SET-ASIDE, THEN WE’LL BE BLIND TO THE REALITY OF SOMEONE LIKE MR. BUTLER AND THE EXPERIENCES OF POOR FOLKS ALL AROUND THIS COUNTRY. YOU REFUSE TO ANSWER A LOT OF MY QUESTIONS ABOUT YOUR VIEWS, TALKING ABOUT WHAT SUPREME COURT PRECEDENT IS. WE ARE AT A TIME WHEN STATES ARE ENACTING THESE LAWS ALL OVER OUR COUNTRY. VYING TO DISENFRANCHISE VOTER, TARGETING THEM WITH ALMOST SURGICAL PRECISION. YOUR ANSWERS DON’T PROVIDE ME COMFORT. AND THE JUSTICE OF YOUR NATION’S HIGHEST COURT, YOU WERE FAIRLY TAKING INTO ACCOUNT THE BARRIERS THAT CONTINUE TO DISENFRANCHISE MINORITY VOTERS. I AM A PRISONER OF HOPE LIKE YOU. WE HAVE A LONG WAY TO GO. WE HAVE WORK TO DO. BLACK FOLKS AND WHITE FOLKS HONORING THE HISTORY OF AMERICA FIGHTING TO BRING US MORE JUSTICE. THE SUPREME COURT HAS A VITAL ROLE. AND NOTHING YOU’VE SAID HERE TODAY GIVES ME ANY COMFORT THAT SHOULD YOU BE ON THE SUPREME COURT, THAT YOU WOULD DRIVE FORWARD AND SEE THAT WE HAVE THAT WORK TO DO AND MAKE THE KIND OF DECISIONS THAT WOULD MAKE A DIFFERENCE FOR PEOPLE LIKE MR. BUTLER, LEAVING EAST OF THE RIVER, NORTH OF THE RIVER, ALL OVER THIS NATION. THANK YOU, SIR.>>CAN I TAKE A MINUTE TO RESPOND?>>SURE. AND THEN I’M GONNA RECOGNIZE THE SENATOR.>>THERE ARE A COUPLE THINGS ON THAT. I POINTED OUT IN THE SOUTH CAROLINA OPINION, I WAS THE MAJORITY OPINION, THAT WE SEE ON AN ALL TOO COMMON BASIS THAT RACISM STILL EXISTS IN THE UNITED STATES OF AMERICA. THE LONG MARCH FOR RACIAL EQUALITY IS NOT OVER. I CITED I THINK YOU’VE SEEN AFT AN AFRICAN AMERICAN HOCKEY PLAYER SCORED THE WINNING GOAL, A BURST OF RACIAL COMMENTARY ABOUT HIM, AND THAT WAS JUST ONE OF MANY EXAMPLES I COULD HAVE CITED IN THIS CASE.>>COULD YOU BE MORE SPECIFIC?>>RACIST. I ACTUALLY SAID RACIST COMMENTS, IS WHAT I SHOULD HAVE SAID ONLINE. AND THAT WAS JUST ONE EXAMPLE. I POINTED TO SAY THE REALITY, JUST 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’RE RAISING HERE. I WAS ALL OVER THAT. SO WERE THE OTHER JUDGES. HOW THIS IS REALLY GONNA WORK IN PRACTICE? WE DROVE DOWN AND DROVE DOWN AND CAUSED THE REWRITING OF THE REASONABLE IMPEDIMENT PROVISION TO MAKE SURE — I TALKED ABOUT THE FACT FOR EXAMPLE THAT AFRICAN AMERICANS IN SOUTH CAROLINA AT THAT TIME DIDN’T HAVE AS MANY CARS IN THE SAME PERCENTAGE. SO TO GET TO YOUR POINT ABOUT GETTING THE PHOTO IDs, I MADE CLEAR THAT I UNDERSTOOD THAT. WE BLOCKED IMPLEMENTATION FOR 2012 BECAUSE WE WERE WORRIED TO YOUR POINT ABOUT THE FORM, THAT IT WOULDN’T BE ENOUGH TIME TO GET ALL THIS IN PLACE AND TO EDUCATE PEOPLE. IT WAS A UNANIMOUS DECISION. AGAIN NEITHER SIDE, THE OBAMA JUSTICE DEPARTMENT DID NOT APPEAL OUR DECISION TO THE SUPREME COURT. I BELIEVE, I ASSUME, THAT’S BECAUSE THEY THOUGHT OUR DECISION APPROPRIATELY ACCOMMODATED THE INTERESTS OF THE PARTIES IN THAT CASE AND WOULD SHOW THAT AFT — ENSURE THAT AFRICAN AMERICANS IN SOUTH CAROLINA WERE ABLE TO VOTE ON THE SAME BASIS AS BEFORE. GOING BACK TO GROWING UP, I TALKED ABOUT THAT. THE LAW JOURNAL NOTE THAT I WROTE ON RACE DISCRIMINATION TALKED ABOUT SOMETHING THAT I KNOW YOU’VE BEEN TALKING ABOUT A LOT, WHICH WAS BIAS IN THE CRIMINAL JUSTICE SYSTEM. AND I SAID AT THE END OF THAT JOURNAL NOTE THAT BOTH RACIAL EQUALITY AND THE APPEARANCE OF RACIAL EQUALITY WERE CRITICAL TO THE FAIRNESS OF THE RACIAL JUSTICE SYSTEM. I PROVIDED SPECIFIC MECHANISMS FOR ROOTING OUT RACE DISCRIMINATION AND THE JURY SELECTION PROCESS. I TALKED ABOUT WHAT YOU’VE TALKED ABOUT, IMPLICIT BIAS OR SUBCONSCIOUS RACISM. I SPECIFICALLY TALKED ABOUT THAT IN THAT DECISION. I’VE BEEN, I THINK, A LEADER — SO THE 2010 TESTIMONY BEFORE THE CONGRESS ABOUT THE LACK OF MINORITY LAW CLERK HIRING AT THE SUPREME COURT. JUSTICE THOMAS AND JUSTICE BRIAR WERE TESTIFYING BEFORE THE APPROPRIATIONS COMMITTEE, AND THEY WERE ASKED ABOUT MINORITY LAW CLERKS AND THE LACK OF THEM AT THE SUPREME COURT. AND THEY SAID IN ESSENCE WE’RE HIRING FROM THE LOWER COURTS. AND I REMEMBER READING THAT AND THINKING, WELL, I NEED TO DO SOMETHING ABOUT THAT. I’M THE LOWER COURT. I’M ONE OF THEM. SO AFTER THAT, I THOUGHT WHAT CAN I DO? AND I DIDN’T JUST SIT THERE. I WENT AND THOUGHT WHAT CAN I DO, AND I STARTED ON MY OWN GOING TO THE YALE BLACK LAW STUDENTS ASSOCIATION EVERY YEAR STARTING IN 2012. I THINK I’M THE ONLY JUDGE WHO HAS DONE SOMETHING LIKE THAT, OR ONE OF THE FEW. AND I JUST COLD-CALLED THEM, COLD-E-MAILED THEM AND SAID I’D LIKE TO SPEAK ABOUT MINORITY LAW CLERK HIRING BECAUSE I’M TOLD THERE’S A PROBLEM THERE. AND I SHOWED UP THE FIRST TIME WONDERING HOW IT WOULD GO, AND I EXPLAINED AND I GOT A GOOD CROWD FROM THE BLACK LAW STUDENTS ASSOCIATION. AND I SAID WE NEED MORE LAW CLERKS. THERE’S A PROBLEM. AND LET ME TELL YOU HOW TO DO IT. AND HERE’S WHY YOU SHOULD CLERK, AND HERE’S HOW YOU CLERK. AND HERE’S HOW YOU HERE ARE THE CLASSES YOU SHOULD TAKE AND THE THINGS YOU NEED. AND I GAVE THEM MY PHONE NUMBER AND E-MAIL AND SAID CALL ME ANY TIME IF YOU WANT TO HELP. AND IT WAS A BIG SUCCESSIGOT A LOT OF E-MAILS AFTER THAT. I HELPED STUDENTS. I HELP STUDENTS GET CLERKSHIPS WITH OTHER JUDGES. ONE OF THEM RECENTLY FINISHED THE SUPREME COURT AND THANKED ME FOR STARTING HIM ON THAT ROAD. AND THEN IT WAS A SUCCESS, AND I’VE GONE BACK ALMOST EVERY YEAR THERE. AND AS YOU KNOW, WE’RE GRADUATES OF THE SAME LAW SCHOOL. A LOT OF PEOPLE CLERKED FROM THERE. SO IT’S A GOOD PLACE TO GO. AND I’VE CONTINUED TO ENCOURAGE AFRICAN AMERICAN LAW CLERKS, BUT NOT JUST ENCOURAGEMENT. I’VE GIVEN THEM HELP AND ADVICE AND BEEN A SOURCE OF COUNSEL. I TRY TO BE. WHY IS THAT? BECAUSE I SAW A PROBLEM TO THE EXTENT — OF THE KIND YOU’RE TALKING ABOUT. AND IT’S ONE SMALL THING, I SUPPOSE. BUT THOSE ARE THE FUTURE PEOPLE WHO ARE GONNA BE SITTING AROUND HERE, I THINK. AND I TRIED TO BE VERY PROACTIVE ON THAT, INCLUDING MY OWN COURT HIRING WHERE THERE ARE ONLY NETWORKS THAT PREVENTED WOMEN AND AFRICAN AMERICANS AND MINORITIES FROM GETTING CLERKSHIPS, I HAVE BEEN VERY AGGRESSIVE ABOUT TRYING TO BREAK DOWN THOSE BARRIERS AND BE VERY PROACTIVE ON THAT. RECOGNIZING THAT PART OF THIS IS PROFESSORS WHO HAVE RESEARCH ASSISTANTS. SO MY CASES LIKE THE ORTIZ DIAZ CASE. I’M PROUD OF WHAT WE DID IN THE SOUTH CAROLINA CASE. IF YOU LOOK AT YOUR BROADER QUESTION ABOUT MY LIFE AND MY RECORD, I UNDERSTAND WHAT YOU’RE ASKING ABOUT, A FEW COMMENTS IN THOSE — IN THE HAWAII CASE. IF YOU LOOK AT THE SWEEP OF IT, I HOPE IT GIVES YOU CONFIDENCE THAT I’VE DONE MY BEST TO TRY TO UNDERSTAND THE REAL WORLD AND TRIED THROUGH MY ACTUAL DECISIONS IN THE REAL WORLD AND APPLY THE LAW FAIRLY AND THROUGH MY OTHER ROLE AS A JUDGE IN HIRING LAW CLERKS TO BE VERY PROACTIVE IN TRYING TO ADVANCE EQUALITY IN AMERICA.>>SENATOR, WAIT, SIR.>>SENATOR, MR. CHAIRMAN, THANK YOU. I THINK IT’S IMPORTANT, THE RULES OF FAIRNESS AND THE RULES OF THE COMMITTEE REQUIRE US TO TREAT OUR WITNESSES WITH RESPECT. WITH MINIMUM STANDARDS OF RESPECT SUCH THAT YOU CAN’T CROSS-EXAMINE SOMEBODY ABOUT A DOCUMENT THAT THEY CAN’T SEE. IN THIS CIRCUMSTANCE, THE DOCUMENT THAT WAS REFERRED TO BY MY DISTINGUISHED FRIEND AND COLLEAGUE, SENATOR BOOKER, WAS DESIGNATED AS COMMITTEE CONFIDENTIAL. THERE ARE WAYS WE CAN DEAL WITH THIS. IN A CLOSED SESSION, SO THAT HE CAN SEE THE DOCUMENT TO WHICH YOU’RE REFERRING. OR WE CAN ALSO GO ABOUT DIFFERENT PROCEDURES TO MAKE IT PUBLIC. WE’VE ALREADY DONE THIS IN THIS HEARING WITH SENATOR LAHE. THE ONE THING WE CANNOT DO IS REFER TO A DOCUMENT, CROSS-EXAMINE HIM ABOUT THAT DOCUMENT, BUT NOT EVEN LET HIM SEE IT. BECAUSE HE CAN’T SEE IT. WE COULDN’T DO THAT IN A COURTROOM, AND WE CAN’T DO THAT IN OUR COMMITTEE. OUR RULES DON’T ALLOW IT. SO I WOULD JUST SUGGEST THAT WE GO THROUGH THE PROPER PROCEDURE TO EITHER DEAL WITH THIS IN A CLOSED SESSION OR IDEALLY GO THROUGH THE PROCESS THAT SENATOR LAYHE AND COBIASSURE WENT THROUGH TO ADDRESS THIS IN OPEN COMMITTEE.>>SENATOR.>>THE OBJECTION IS NOTED. 30 SECONDS.>>I REALLY RESPECT MY COLLEAGUE FROM UTAH, AND I APPRECIATE THAT. I’M NOT THE FIRST COLLEAGUE THAT HAS REFERENCED COMMITTEE CUSTODYIAL E-MAIL — CONFIDENTIAL E-MAILS. THEY WERE REFERENCED BEFORE. AND THAT’S WHY THIS SYSTEM IS RIGGED. WE HAVE BEEN ASKING, I HAVE LETTERS HERE, SIR, THAT WE HAVE ASKED FOR. THE ONE E-MAIL SPECIFICALLY ENTITLED RACIAL PROFILING. IT SOMEHOW WAS DESIGNATED AS SOMETHING THE PUBLIC COULDN’T SEE. THIS WASN’T PERSONAL INFORMATION.>>THANK YOU.>>THERE’S NO SECURITY ISSUES WHATSOEVER. THE FACT WE’RE NOT ALLOWING THESE E-MAILS OUT AS WE HAVE ASKED, THAT’S WHY I THINK THE SYSTEM IS RIGGED. MORE THAN THAT –>>SENATOR.>>YOU HAVE THIS SYSTEM WHERE THIS WHOLE AREA –>>IF YOU COULD BEGIN TO WRAP UP.>>I WILL WRAP UP. THANK YOU, SIR. WE’RE NOT ALLOWED TO LET THESE OUT. SO I SEE YOU’RE OUTLINING A PROCESS BUT I’M SAYING THAT PROCESS IS UNFAIR, IT’S UNNECESSARY, IT’S UNJUST, AND IT’S UNPRECEDENTOD THIS TO EVERYBODY. I KNOW THE SENATOR NEEDS TO RESPOND WITH RESPECT, IF HE’D DO THAT BRIEFLY, I’D LIKE TO CONTINUE ON.>>SENATOR BOOKIE, I WILL GO HAND IN HAND WITH YOU LITERALLY TO WORK WITH LEADERSHIP STAFF TO GET THAT GOING. I AGREE WITH YOU. THERE’S NO REASON WHY IT SHOULDN’T BE SOMETHING WE CAN DISCUSS IN PUBLIC. I DON’T KNOW WHY IT WAS MARKED COMMITTEE CONFIDENTIAL. I WASN’T IN CHARGE OF THAT. REGARDLESS WE DO HAVE TO FOLLOW PROCEDURE.>>I’LL WORK WITH YOU ON THAT.>>THANK YOU, GENTLEMEN. I’M NEXT. [ LAUGHTER ]>>AND I DON’T HAVE ANY E-MAIL. [ LAUGHTER ]>>I WANT TO START AND COMPLIMENT YOU ON YOUR DEMEANOR. AND I MEAN THAT. I KNOW YOU’RE ON YOUR BEST BEHAVIOR. BUT I APPRECIATE YOUR HUMILITY. WE BOTH KNOW SOME FEDERAL JUDGES WHO CAN PRETTY MUCH STRUT SITTING DOWN. [ LAUGHTER ]>>AND I APPRECIATE YOUR ATTITUDE. AND YOUR DEMEANOR. AND I MEAN THAT.>>THANK YOU VERY MUCH SENATOR.>>I’M SDRRS I JUST WANT — I JUST WANT TO ASK YOU A FEW QUESTIONS ABOUT THE LAW. I’M NOT ASKING YOU TO GO THUMBS UP OR THUMBS DOWN. I MAY HAVE TO INTERRUPT YOU A FEW TIMES. JUST TO MIGHT HAVE BEEN US ALONG. I’M NOT TRYING TO BE RUDE. I WANT YOU TO UNDERSTAND THAT.>>YES, SIR.>>YOU HAVE BEEN NOMINATED FOR THE MOST POWERFUL, UNELECTED POSITION, IN THE MOST POWERFUL COUNTRY IN ALL OF HUMAN HISTORY. CONGRATULATIONS. BUT YOU UNDERSTAND WHERE WE’RE COMING FROM. THERE’S NO MARGIN FOR ERROR.>>YES, SIR.>>WE’VE GOTTA GET THIS RIGHT. YESTERDAY — GENTLEMEN, TAKE IF OUTSIDE, WOULD YA — TAKE IT OUTSIDE, WOULD YA? YESTERDAY I TALKED A LITTLE BIT ABOUT THE FACT THAT JUDGES HAD LIMITS ON THEIR POWER. I DON’T KNOW IF I SAID IT THIS WAY, BUT I SAID I THINK IT’S INAPPROPRIATE FOR A FEDERAL JUDGE TO TRY TO REWRITE THE CONSTITUTION EVERY OTHER THURSDAY. TO ADVANCE AN AGENDA THAT EITHER HE OR HIS/HER SUPPORTERS CAN’T GET OUT OF THE VOTERS. DO YOU AGREE WITH THAT?>>YES, OF COURSE, SENATOR. JUDGES INTERPRET THE LAW. THEY DON’T MAKE THE LAW. AND THAT’S OBVIOUSLY SOMETHING THAT IS REPEATED A LOT.>>YES.>>BUT IT ACTUALLY MATTERS. IF YOU KEEP THAT IN MIND, IT MATTERS.>>JUDGES ALSO HAVE ANOTHER DUTY THOUGH. I DIDN’T GET TO TALK ABOUT IT YESTERDAY. FEDERAL JUDGES AND STATE COURT JUDGES HAVE AN OBLIGATION TO PROTECT INALIENABLE RIGHTS. EVEN IF THE MAJORITY WANTS TO TAKE THEM AWAY. THAT’S WHY THEY CALL INALIENABLE. AND WHEN JUDGE GORSUCH WAS HERE, IF YOU THINK ABOUT IT, IN MANY CASES, THE BILL OF RIGHTS IS THERE FOR THE HIGH SCHOOL QUARTERBACK OR THE PROM QUEEN, IT’S THERE FOR THE PERSON WHO CEASE THE WORLD DIFFERENTLY BUT HAS THE RIGHT TO DO THAT. AND I THINK THAT’S IMPORTANT FOR A JUDGE. CAN WE AGREE ON THAT?>>ABSOLUTELY, SENATOR. I THINK THE BILL OF RIGHTS — PROTECTS ALL OF US, AND THAT INCLUDES AND IT’S MOST RELEVANT FOR FREE SPEECH OF THE UNPOPULAR.>>RIGHT.>>OR UNPOPULAR –>>EVEN IF THE MAJORITY SAYS WE’RE THE MAJORITY. BECAUSE WE BOTH KNOW THAT SOMETIMES THE MAJORITY JUST MEANS THAT MOST OF THE FOOLS ARE ON THE SAME SIDE. [ LAUGHTER ]>>JUST BECAUSE YOU’RE THE MAJORITY DOESN’T MEAN YOU’RE RIGHT, CORRECT?>>JUST BECAUSE YOU’RE THE MAJORITY DOES NOT MEAN YOU’RE RIGHT IS ABSOLUTELY CORRECT.>>RIGHT. THAT’S WHY WE HAVE A BILL OF RIGHTS.>>YES.>>I WANT TO TALK ABOUT — THAT’S THE EASY PART. I WANT TO TALK ABOUT HOW WE GO ABOUT MAKING THESE DECISIONS. THE SUPREME COURT HAS REJECTED THE DOCUMENT. YOU TALKED ABOUT WE’RE NOW TEXTULISTS — TEXTUALISTS, AND YOU CALL THE ORIGINALISM CONSTITUTIONAL.>>ORIGINAL PUBLIC MEANING, ORIGINALISM, CONSTITUTIONAL TEXTUALISM. I THINK THOSE DESCRIBE THE SAME THING.>>YOU TALK WITH THE LANGUAGE, LET’S SAY THE STATUTE. THE LANGUAGE IN THE STATUTE.>>YES, SIR.>>AND THE FIRST QUESTION YOU ASK, IS IT AMBIGUOUS OR UNAMBIGUOUS? CORRECT?>>IF THERE’S A CANNON OF CONSTRUCTION THAT IS THERE, THAT DEPENDS ON A FINDING OF AMBIGUITY, THAT WOULD BE THE QUESTION. OTHERWISE, OTHER THAN THAT, YOU WOULD JUST SAY WHAT IS THE BEST MEANING.>>YEAH, YOU READ THE STATUTE.>>YES.>>DOES IT MAKE SENSE? IT EITHER MAKES SENSE OR IT DOESN’T. HOW DO YOU DETERMINE THAT? HOW AMBIGUOUS — YOU ALLUDED TO THIS, BUT HOW DECISION DID IT — AMBIGUOUS DOES IT HAVE TO BE? 100% AMBIGUOUS? DOES IT HAVE TO BE 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 THOSE CANNONS OF INTERPRETATION ABOUT WHICH THEY’VE ALREADY READ IN THE BRIEF TO DO WHAT THEY WANT TO DO! IF YOU KNOW. [ LAUGHTER ]>>I’VE SAID MANY TIMES IN MY CASES AND TALKS TO STUDENTS THAT JUDGES SHOULDN’T BE SNATCHING AMBIGUITY FROM CLARITY. SO THAT’S ONE THING. I THINK THAT GOES RIGHT TO YOUR QUESTION. TO YOUR BROADER QUESTION, THAT’S ONE OF MY CONCERNS ABOUT A FEW CANNONS OF CONSTRUCTION. THAT DEPENDS ON AN INITIAL FINDING OF AMBIGUITY, WHICH SOUNDS GREAT IN THEORY. WHICH IS OH, IF IT’S AMBIGUOUS, GO TO THAT CANNON OR THIS CANNON. BUT IN PRACTICE OVER 12 YEARS WHAT I’VE FOUND, AND I’VE WRITTEN ABOUT THIS, IS THAT THERE’S NOT A GOOD WAY TO FIND NEUTRAL PRINCIPLES ON WHICH TO, OR — IN WHICH 2 OR THREE JUDGES CAN AGREE ON HOW AMBIGUOUS IS AMBIGUITY. AND THAT’S HARD TO TALK ABOUT. IF I FIND IT AMBIGUOUS, I DON’T THINK IT’S AMBIGUOUS, THAT IS IN MY VIEW FRUSTRATING THE GOAL THAT I HAVE OF THE JUDGE’S UMPIRE, THE EVEN-HANDED APPLICATION OF NEUTRAL PRINCIPLES IN THE RULE OF LAW. AND ULTIMATELY THAT’S CONCERNED ME. BECAUSE SOME OF THESE CASES WHERE THAT’S COME UP ARE BIG DEAL CASES. YES IT’S DEPENDENT ON THIS INITIAL DETERMINATION THAT WHEN YOU UNPACK AND ACTUALLY SIT IN THE JUDICIAL CONFERENCE ROOM LIKE I DO, IT TURNS OUT TO BE VERY HARD TO APPLY IN AN EVEN-HANDED WAY. THAT’S A CONCERN I IDENTIFIED.>>I’M WITH YOU ON THAT. YOU ADVOCATE THE BEST READING OF THE STATUTE.>>UH-HUH. YES.>>LET’S TALK ABOUT THAT. AND I WANT TO TALK ABOUT IT NOT IN TERMS OF THE STATUTE BUT THE SECOND AMENDMENT. THE HELLER CASE. YOU DEFINED ORIGINALISM AS CONSTITUTIONAL TEXTUALISM, AND THE RIGHT INTERPRETATION OF THE CONSTITUTION IS — TELL ME IF I GET THIS WRONG NOW. HOW WOULD A REASONABLE PERSON AT THAT TIME HAVE UNDERSTOOD THE CONSTITUTION?>>THE ORIGINAL PUBLIC MEANING. I WANT TO ADD PRECEDENT IS A HUGE PART OF WHAT WE DO IN CONSTITUTIONAL LAW. BUT IF YOU’RE LOOKING AT THE WORDS, THE ORIGINAL PUBLIC MEANING, LOOK AT WHAT THE WORDS MEAN. SOMETIMES THE MEANING CHANGES. OFTEN TIME IT HASN’T. BUT TO YOUR POINT I AGREE.>>IT’S ALMOST AN OBJECTIVE CATEGORY.>>YOU’RE TRYING TO MAKE IT AS OBJECTIVE AS POSSIBLE, ABSOLUTELY. IT IS AN OBJECTIVE CAST. SOMETIMES THERE’S QUESTIONS ABOUT WHAT THE MEANING OF THE WORD WAS.>>SURE. BUT YOU’RE NOT LOOKING AT THE INTENT.>>CORRECT. NOT THE SUBJECTIVE INTENT OTHER THAN TO THE EXTENT –>>OKAY, I LOOKED AT THE HELLER TEXT. AND I’M TALKING ABOUT THE HELLER CASE UPHELD BY THE U.S. SUPREME COURT T. WASN’T A BALANCING CASE. YOU MADE THAT POINT CLEAR AT THE COURT OF APPEAL LEVEL. IT WAS A TEXT HISTORY AND TRADITION CASE.>>UH-HUH.>>AND JUSTICE SCALIA WROTE THE MAJORITY OPINION. JUSTICE STEVENS DISENDED, AND THEY BOTH TOOK AN ORIGINALIST APPROACH. AND I WENT BACK AND LOOKED. SCALIA, WHICH IS WHAT HE RELIED ON, FOUNDING ERA DICTIONARIES, TREATISES, AMERICAN COLONIAL LAWS, BRITISH AND AMERICAN HISTORICAL DOCUMENTS, COLONIAL ERA STATE CONSTITUTIONS, HE LOOKED AT THAT. AND JUSTICE STEVENS ALSO USING AN ORIGINALIST APPROACH LOOKED AT THE SAME DOCUMENTS AND ADDED HE RELIED ON LINGUISTIC PROFESSORS AND 18TH CENTURY TREATISE ON SYNONYMOUS WORDS, AND A DIFFERENT EDITION OF THE COLONIAL ERA DICTIONARY THAT JUSTICE SDALIA USED — SCALIA USED. HERE’S MY QUESTION. DOESN’T THE ORIGINALIST APPROACH JUST REQUIRE A JUDGE TO BE AN HISTORIAN? AND AN UNTRAINED HISTORIAN AT THAT? WOULDN’T WE BE BETTER OFF HIRING A TRAINED HISTORIAN TO GO BACK AND LOOK AT ALL OF THIS? THIS COMMENTARY?>>WELL, 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. MOST OF THE CONSTITUTIONAL PROVISIONS, THERE’S BEEN A BODY OF CASES OVER TIME ZIPPING THE — INTERPRETING THE PROVISION AND YOU DON’T HAVE TO DO THE KIND OF EXCAVATION THAT JUSTICE SCALIA AND STEVENS DID IN THAT CASE BECAUSE IT’S BEEN DONE BEFORE. THE REASON I THINK WHY THE SECOND AMENDMENT POSED A CHALLENGE IN THAT CASE IN TERMS OF FIGURING IT OUT IS THE PREPARATORY CLAUSE IN THE SECOND AMENDMENT WHICH THE QUESTION WAS DID THAT DEFINE THE SCOPE OF THE RIGHT INDICATED AFTERWARD? THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED? OR DID THE PREPARATORY CLAUSE MERELY STATE A PURPOSE FOR WHICH THE RIGHT WAS RATIFIED, AND THEREFORE YOU NEED THE RIGHT AS WRITTEN, THE RIGHT TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED. TO FIGURE OUT WHAT THE PREPARATORY CLAUSE MEANT, WE HAD TO FIGURE OUT FOR THE GENERAL PROPOSITION HOW LEGAL DOCUMENTS AT THE TIME USED PREPARATORY CLAUSES, WHAT THE PURPOSES OF THOSE WERE, AND THAT REQUIRED A LOT OF HISTORICAL EXCAVATION BY THE TWO JUSTICES AT A COMPETING POSITION.>>OKAY. FAIR ENOUGH.>>WE TALKED ABOUT HOW OUR JUDICIARY WAS ONE OF THE CROWNING LEVELS OF OUR GOVERNMENT IN THE FACT THAT IT SEPARATES US FROM OTHER COUNTRIES. THAT IS THE ISSUE THAN I THOUGHT ABOUT — THAT I THOUGHT ABOUT. WE HAVE THE SAME TIME AUDIO. WE STARTED WITH RELEASE OF TAPES MUCH LATER IN THE WEEK AND LATER IN THE DAY AND AT THE SAME TIME THERE IS AUDIO IN OUR COURT AND I THINK THAT HAS BEEN WORK TO THE LEVEL FOR US. I KNOW THE NOMINEES WHO HAVE SET THIS CHAIR IN THE PAST HAVE EXPRESSED THE DESIRE FOR CAMERAS IN THE COURTROOM ONLY TO GET TO THE SUPREME COURT AND REALLY CHANGE THEIR POSITION RAPIDLY. IT MEANS HUMILITY ABOUT MAKING CONFIDENT ASSERTIONS ABOUT THAT AND OF COURSE JOINING A TEAM AND THINKING ABOUT THAT. HEARING THE PERSPECTIVES OF WHY THEY CHANGED THEIR POSITION. I WILL SAY ONE THING THAT I THINK IS IMPORTANT. ORAL ARGUMENTS ARE A TIME FOR THE JUDGES TO ASK TESTING QUESTIONS OF BOTH SIDES AND THERE IS A PERCEPTION AND YOU SEE IT IN THE MEDIA THAT THE JUDGE ASK — WILL BE LEANING THIS WAY. I CANNOT STAND THAT KIND OF COMMENTARY. IT IS A TIME TO ASK TOUGH QUESTIONS. I DO WONDER WHETHER PEOPLE WOULD GET THE WRONG IMPRESSION OF THE ORAL ARGUMENT. I HAVE THOUGHT THE ANNOUNCEMENT OF THE SUPREME COURT DECISION IN THE ISSUE THE OPINIONS, THAT IS A DIFFERENT POINT IN TIME WHEN — >>WHAT DID YOU SAY? PEOPLE AREN’T FOOLS? >>AS TO THE DECISIONS, THAT IS WHEN THE COURT IS ANNOUNCING THE DECISION AND THAT IS THE DECISION OF THE COURT. ORAL ARGUMENT, LAWYERS UNDERSTAND PEOPLE ASKING QUESTIONS ABOUT BOTH SIDES. SOMETIMES YOU THINK THAT THE JUDGE THANKS TO FIX THIS.>>IF I WERE STARTING — >>I WILL STOP THERE.>>THERE ARE GOOD ARGUMENTS ON BOTH SIDES. I DO THINK THAT THE AMERICAN PEOPLE HAVE LOST CONFIDENCE IN THE INSTITUTION OF THE SUPREME COURT AND CONGRESS AND THE PRESIDENCY AND IT IS IRONIC GIVEN MY GENERATION THAT THE ONLY INSTITUTION THAT THEY HAVE CONFIDENCE AND IS THE MILITARY WHICH WAS NOT TRUE IN MY ERROR. YOU HAVE TO TRUST THE PEOPLE. TOO MANY HERE IN THE BELTWAY DON’T.>>THE PEOPLE DON’T READ ARISTOTLE EVERY DAY BUT THEY GET IT AND WILL FIGURE IT OUT.>>LET ME ASK YOU A COUPLE OF MORE QUESTIONS. YOU ARE IN ORIGINALIST EXPECT YES . PAY ATTENTION TO THE ORIGINAL PUBLIC MEETING. I WANT TO MAKE SURE I SAY IF YOU ARE IN A CONSTITUTIONAL CASE, PRESIDENT IS IMPORTANT.>> THE FOCUS OF AN ORIGINALIST IS AN UNDERSTANDING OF THE CONSTITUTION BY THE PEOPLE AT THE TIME IT WAS WRITTEN AND RATIFIED. THE MEANING AS OPPOSED TO THE INTENT I AM NOT TRYING TO TRICK YOU.>>I WANT TO BE CLEAR IN CASE SOMEONE TAKES SOMETHING OUT OF CONTEXT.>>ARE YOU WILLING TO OVERTURN? DO YOU THINK IT CONFLICTS WITH THE ORIGINAL PUBLIC UNDERSTANDING OF THE DOCUMENT .>>THE SUPREME COURT RULES ON 10 SEVEN SETS FORTH A SERIES OF CONDITIONS THEY LOOK FOR BEFORE YOU CONSIDER — >>IF YOU COME UP ON A CASE, AND YOU SAY, YOU KNOW, I AM ON THE SUPREME COURT NOW AND I HAVE LOOKED AT THIS AND THAT IS NOT UNDER ORIGINALIST SOME. THAT IS NOT WITH THE PUBLIC UNDERSTANDING WAS.>>THE SOUP — THIS FIRST INQUIRY WAS IT WAS GRIEVOUSLY WRONG AND IF YOU THOUGHT THAT IT WOULD BE GONE BECAUSE OF THAT OR FOR OTHER REASONS AND GO TO THE NEXT STEPS. THAT IS IT 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 IN THE — AND THE FRAMERS DREW ON THE EXPERIENCE.>>PAGER FROM THE STATE CONSTITUTION. CAN WE AGREE THAT EVERY STATE HAS THAT? >>THEY PROTECT A LOT OF RIGHTS.>>BEFORE THE FEDERAL CONSTITUTION WAS EXTENDED TO THE STATE, THE ONLY PROTECTION WAS THE STATE CONSTITUTION EXPECT THAT IS CORRECT OTHER THAN THE RIGHTS ARTICULATED IN THE ORIGINAL CONSTITUTION, YES. >>CAN WE AGREE THAT — LET’S TAKE THE BILL OF RIGHTS. LET’S TAKE THE FIRST AMENDMENT. CAN WE AGREE THAT THE FIRST AMENDMENT AND THE UNITED STATES CONSTITUTION SETS THE FLOOR THAT THE STATE COUNTERPART, THE STATE FIRST AMENDMENT COUNTERPART CAN ACTUALLY GIVE YOU A GREATER FIRST AMENDMENT RIGHT? >>CORRECT. I MENTIONED IT BEFORE AND A BOOK IN THE 1970S ENCOURAGING STATE LITIGANTS AND COURTS AND JUDGES TO THINK ABOUT EXACTLY WHAT YOU ARE SAYING.>>IN FACT, SOME STATES HAVE. CALIFORNIA, FOR EXAMPLE, THEIR FIRST ADMIN — EDMUND DIDN’T — AMENDMENT DOES NOT HAVE A CLAUSE .>>I HAVE NOT LOOKED AT THE CALIFORNIA CONSTITUTION RECENTLY. I WILL TAKE YOUR UNDERSTANDING.>>THEY DON’T. IN A PRIVATE SHOPPING CENTER, SO LONG AS IT IS A COMMON AREA, SOMEBODY CAN GO IN AND PROTEST. YOU HAVE A FIRST AMENDMENT RIGHT UNDER THE STATE CONSTITUTION.>>THE ONLY QUESTION IN THAT CASE WOULD BE IF IT CONFLICTS WITH ANOTHER PROVISION.>>THAT IS MY QUESTION. WHAT HAPPENS WHEN A STATE INTERPRETS ITS OWN FIRST AMENDMENT, WHICH IT CAN INSULATE FROM REVIEW BY YOU GUYS OR BY YOU SOON TO BE GUYS ON THE SUPREME COURT UNDER THE GROUND DOCUMENT BUT IT CONFLICTS WITH YOUR FIST A MAN — FIFTH AMENDMENT PROPERTY RIGHT.>>ARTICLE 6 OF THE CONSTITUTION MAKES CLEAR THAT THE FEDERAL CONSTITUTION IS THE SUPREME LAW OF THE LAND AND THAT TRUMPS NOT ONLY STATE LEGISLATION BUT ALSO STATE CONSTITUTIONAL DECISIONS. IN THAT INSTANCE, THE PROPERTY RIGHT PROTECTED, IF IT WERE DETERMINED THAT IT VIOLATED THE RIGHT AND THE U.S. CONSTITUTION, THAT WOULD CONTROL.>>THAT IS NOT WHAT THE SUPREME COURT SAID.>>IT WAS A BALANCE BECAUSE THEY INTERPRETED THE PROPERTY NOT TO BE PROTECTED.>>CALIFORNIA ONE IT BUT THE POINT BEING, I HAD THE PREMISE AND WHAT I SAID. IF YOU CONCLUDED THAT IT VIOLATED THE PROPERTY PROTECTION THEN THE U.S. CONSTITUTIONAL CONTROL AND IN THAT CASE THE SUPREME COURT CONCLUDED THAT IT DID NOT VIOLATE THE PROPERTY PROTECTION OF THE U.S. CONSTITUTION.>>I AM NOT GOING TO OUTSMART YOU. YOU ARE RIGHT. >>YOU GOT THIS FIRST AMENDMENT SPEECH RIGHT, FREE SPEECH ON STEROIDS IN CALIFORNIA AND THERE IS NO STATE ACTION REQUIRED. YOU KNOW, THEY ALL SAID IT APPLIES TO A PRIVATE ENTITY LIKE A SHOPPING CENTER I KNOW THAT JUSTICE KENNEDY IS TALKING ABOUT HOW THE INTERNET IS NEW PUBLIC ARENA. IF YOU HAVE — OTHER STATES HAVE ADOPTED THIS APPROACH. THIS ENHANCED RIGHT WITH NO STATE ACTION REQUIREMENT. NEW JERSEY HASN’T OTHER PLACES. HOW THEN CAN TWITTER IN CALIFORNIA CENSOR ANY MESSAGES? IF YOU ARE GOING TO BE IN CALIFORNIA, YOU HAVE A FIRST AMENDMENT RIGHT AND IT IS NOT LIMITED TO THE FIRST AMENDMENT DOCTRINE PICK >>IT SOUNDS LIKE HYPOTHETICAL BUT I WOULD GIVE YOU A PART OF PERCEPTION.>>IT IS COMING.>>I THINK ONE OF THE THINGS WITH THESE PROCEEDINGS FOR JUDGES AND SUPREME — SUPREME COURT JUSTICE NOMINEES ARE BACK WORKING WITH THE CASES BUT ONE OF THE INTERESTING THINGS THAT I THINK ABOUT IS WHAT IS THE FUTURE AND THE BIG ISSUES COMING DOWN THE PIKE.>>THAT IS ONE OF THEM.>>SPEECH, HOW TECHNOLOGY AFFECTS SPEECH AND HOW IT AFFECTS THE FOURTH AMENDMENT RIGHTS AND PRIVACY. I THINK CYBER WAR AND HOW DOES THE WORD POWER FRAMEWORK SET IN WITH CYBER ATTACKS AND I THINK THAT IS ROOTED IN TECHNOLOGY THAT SOMEONE SITTING IN THIS SEAT 10 YEARS FROM NOW ARE GOING TO BE CRITICAL ISSUES AND I THINK WE ALSO THINK OF THE FUTURE CRISIS MOMENTS BECAUSE THERE WILL BE CRISIS MOMENTS FOR THE SUPREME COURT AND USUALLY THEY ARE UNPREDICTABLE. YOU WOULD NOT HAVE PREDICTED SEPTEMBER 11 OR EVEN THOUGHT TO ASK THEM QUESTIONS.>>I WILL STOP YOU, JUDGE. I RUN OUT OF TIME. >>THANK YOU, SIR.>>I WANT TO TALK ABOUT CHEVRON FOR A SECOND. HERE IS MY UNDERSTANDING. FIRST OF ALL, THE STATUTES HAVE TO BE AMBIGUOUS AND IF IT IS AMBIGUOUS , ACCORDING TO THE SUPREME COURT , WE’VE GOT TO ADOPT THE AGENCY INTERPRETATION EVEN IF IT IS NOT THE MOST REASONABLE INTERPRETATION.>>THAT’S RIGHT.>>IT JUST HAS TO BE HALFWAY REASONABLE.>>THEY SAY REASONABLE BUT NOT THE MOST REASONABLE.>>OKAY. HERE IS WHAT I DON’T UNDERSTAND. YOU LOOK AT THE APA. THE REVIEWING COURT, NOT THE AGENCY BUT THE REVIEWING COURT SHALL DECIDE ALL PREVALENT QUESTIONS OF THE LAW, AND TURPIN STATUTORY PROVISIONS AND TO DETERMINE THE MEANING OR APPLICABILITY OF THE TERMS OF THE AGENCY ACTION. THERE IT IS, BIG AS DALLAS. NOW, THAT IS JUST THE COURT. HOW COME WE HAVE TO DEFER TO A FEDERAL AGENCY UNDER SECTION 706? >>SENATOR, AND MY ARTICLE THAT I WROTE I POINTED OUT THAT STATUTORY PROVISION AND I DID SAY THAT CHEVRON WAS IN TENSION WITH THAT PROVISION BUT CHEVRON CONCLUDED WHAT IT CONCLUDED AND IT HAS BEEN APPLIED OVER TIME. I POINTED OUT PROBLEMS IN TERMS OF THE PRACTICAL APPLICATION. THE AMBIGUITY TRIGGER AND YOU’RE POINTING OUT A PROBLEM AT THE COURT WHICH IS WHERE DID IT COME FROM TO BEGIN WITH.>> NOT ONLY THAT BUT I KNOW YOU KNOW THIS BUT IT ENCOURAGES MISBEHAVIOR AND LET’S SUPPOSE THEY RUN FOR PRESIDENT. THEY ARE NOT GOING TO GO OUT AND RUN ON THEIR GOOD LOOKS BUT THEY ARE GOOD-LOOKING GUYS BUT THEY WILL RUN ON POLICY AND THEY GET ELECTED AND THEY MEET US IN CONGRESS AND A LOT OF TIMES THEY CAN I GET THE BILL PASSED.>>THAT IS RIGHT.>>YOU KNOW WHAT THEY DO. FIGURE 21 — THEY GO TO ONE OF THEIR AGENCIES AND TAKE THEIR SQUARE PEG AND PUT IT IN THE ROUND HOLE AND FIND A JUDGE TO SAY THAT THE STATUTE IS AMBIGUOUS AND WE COULD DO ANYTHING WE WANT TO DO AND THAT IS NOT RIGHT.>>SENATOR, THAT IS A PROBLEM I HAVE IDENTIFIED IN THE REAL-WORLD APPLICATION OF CERTAIN BROAD CONCEPTIONS OF DEFERENCE AND THAT IS IS — IT IS A SHIFT OF POWER FROM THE LEGISLATIVE PRINT — BRANCH. PRESIDENTS RUN FOR OFFICE. >>THEY ALL DO IT.>>IF YOU CAN GET LEGISLATION THROUGH, YOU SUE — TRY TO SEE THE AUTHORITIES THAT YOU CAN ACHIEVE YOUR POLICY AND PUSH THE ENVELOPE ON THE THEORY OF THERE IS AMBIGUITY IN THE OLD STATUTE AND SOMETIMES THE COURT WILL UPHOLD IT >>YOUR HANDS ARE TIED WHEN IT COMES IN FRONT OF YOU. ALL PRESIDENTS HAVE DONE AT. I AM NOT BLAMING THEM. YOUR HANDS ARE TIED. IF THE STATUE IT — IS AMBIGUOUS AND THE INTERPRETATION IS NOT THE MOST REASONABLE IT CAN BE THE 10th MOST REASONABLE AND YOU HAVE TO GO WITH IT.>>IF THE STATUE IT — IS AMBIGUOUS, IT IS A DIFFICULT — >>CHEVRON SAYS USE ALL THE TOOLS OF STATUTORY INTERPRETATION BEFORE YOU GET OF TIMES TO MAKE SURE YOU’RE NOT JUMPING TO QUICK — TWO OF THE RULES.>>THAT MEANS IF IT IS MAJOR SOCIAL ISSUES YOU SHOULD NOT DEFER TO CONGRESS.>> UNIVERSAL INJUNCTIONS. I DON’T KNOW HOW MANY FEDERAL JUDGES, DISTRICT JUDGES, 700? 700. AS I UNDERSTAND THE NATIONWIDE INJUNCTION, SOMETIMES THEY CALL IT UNIVERSAL. A SINGLE — SINGLE FEDERAL JUDGE CAN FREEZE LAW OR REGULATION. LET’S SUPPOSE WE HAVE 700 JUDGES. ONE OF THEM CAN ENJOY — ENJOYING A REGULATION>>THANK YOU. I JUST GOT AN EXTRA 20 SECONDS. ANYBODY ELSE WANT TO GO? I AM GIVING MYSELF AN EXTRA 20 SECONDS. WHERE WAS I? NATIONWIDE INJUNCTION. ONE FEDERAL JUDGE CAN ENJOIN A LAW OR REGULATION FOR THE ENTIRE COUNTRY EVEN IF EVERY OTHER JUDGE IN THE COUNTRY SAYS I DON’T AGREE. WHAT IS THE LEGAL BASIS FOR THAT? HAS TO BE A STATUTE OR THE CONSTITUTION. >>SENATOR, THAT IS AN ISSUE THAT IS BEING CONTESTED CURRENTLY IN COURTS AROUND THE COUNTRY AND IT IS AN ISSUE OF DEBATE AND THEREFORE I THINK I BETTER SAY NOTHING ABOUT IT. I APOLOGIZE FOR THAT BUT IT IS AN ISSUE OF CURRENT DEBATE. >>ALL RIGHT. >>I APOLOGIZE.>>IT’S OKAY.>>I’VE GOT NINE SECONDS. I’VE GOT 29 SECONDS.>>THIS IS NOT MEANT TO BE A TRICK QUESTION. IT IS NOT ABOUT TITLE NINE AND NOT ABOUT SEXUAL ASSAULT BECAUSE I KNOW YOU CAN ENTER THAT DISH ANSWER THAT BUT I WILL NOT ASK THAT. STRIKE THAT. STATE ACTION. IS A PRIVATE SECURITY GUARD A STATE ACTOR? >>WELL, STATED THAT WAY, THE ANSWER WOULD BE NO BUT I THINK SOMETIMES THE CASES, — >>CONTRACTING AND THIS AND THAT .>>HERE’S MY QUESTION. I’VE ALWAYS WONDERED. IF THE CITY PRIORITIZES THE ENTIRE POLICE FORCE, THE PRIVATE POLICE OFFICERS, DO THEY HAVE TO COMPLY WITH THE CONSTITUTION? >>THAT IS WHY I POINTED OUT THE CONTRACTING ISSUE. SOME OF THE SUPREME COURT CASE LAW WOULD LOOK AT THE CONTRACTING ISSUE. THAT IS AN INTERESTING QUESTION THAT IS HARD TO ANSWER WITHOUT LOOKING AT THE ARRANGEMENT OF THE PARTICULAR CITY OF LOW — OR LOCALITY TO FIND OUT HOW MUCH OF THE STATE IS INVOLVED.>>THANKS, JUDGE. >>SENATOR, HAVE YOU EVER DISCUSSED SPECIAL COUNSEL MUELLER OR HIS INVESTIGATION WITH ANYONE? >>WELL, IT IS IN THE NEWS EVERY DAY.>>HAVE YOU DISCUSSED IT WITH ANYONE? >>WITH OTHER JUDGES I KNOW. >>HAVE YOU DISCUSSED MUELLER FOR THE INVESTIGATION WITH ANYONE AT THE LAW FIRM OF PRESIDENT TRUMP’S PERSONAL LAWYER.>>BE SURE ABOUT YOUR ANSWER, SIR. >>WELL, I AM NOT REMEMBERING BUT IF YOU HAVE SOMETHING — >>ARE YOU CERTAIN? >>THE LAW FIRM FOUNDED BY MARK CASO IT’S WHO IS PRESIDENT TRUMP’S PERSONAL LAWYER. HAVE YOU HAD ANY CONVERSATION

65 Comments

  • Stephen Strange

    Why are all the democratic female senators such rude jerks in a situation like this? They also aren't interested in trying to decide if Judge Kavanaugh will uphold the constitution or not. They are just interested in pushing their pet issue out there. Oh, and not giving him time to even answer as well.

    55:00 is Senator Hirono really trying to say that non-citizens have constitutional rights???

  • Me

    Why is it that Democrats can't let a person finish a sentence but a Republican will? It turns out that Republicans are more respectful than Democrats, obviously…..

  • Me

    Judge Kavanaugh is a very sweet man has a wonderful family & is being treated like garbage. The Democrats cannot stand when good people are in office because they are the party of corruption.

  • Jose vasquez

    When Corey Booker was pounding on the desk all I could think of was Ted Cruz' s comments yesterday "if you have the facts, pound the facts, if you have the law, pound the law, if you have neither, pound the desk"

  • Hudson Keelin

    After hearing what those doctors said and saw I think the prostesters should be procecuted to the upmost.
    Find so heaveyly that the money that they excepted to prostest will cost them way more than they gained and maybe in the future this paying people to prostest will stop out of fear of getting caught.

  • Orlando Felix

    Hey Booker I don't know a single black person in my neighborhood over the age of 15 that doesn't have n ID, a social a birth certificate n 2 proofs of address is all that's needed, if your not smart enough to figure that out then you probably don't need to b voting…

  • Orlando Felix

    You need an ID to purchase a fire arm why wouldn't you need an ID to vote for a person that controls men with badges who can legally force you to pay taxes at the end of those same firearms…

  • jannmutube

    –> According to Kavanaugh, the more dangerous a president might make the country's situation, the more power and autonomy he or she would have. We already have a President who fabricated a "witch hunt" lie and has the blood of the press on his hands from inciting violence. Considerations of national security with a President that endangers national security are absurd. And, it's ridiculous that Bill Burck, the attorney for Don McGann, Steve Bannon, and Reince Preibus (in the Russia investigation) has been appointed the "guardian" of Kavanaugh's unreleased documents.

    — > The Constitution clearly defines the separation of powers and a remedy of impeachment. To exempt a president from due process because of his unique duties in Article II would violate the Constitution. This was upheld in United States v Nixon which ruled that "Justice Marshall's statement that a president is not an ordinary person can in no sense mean a president is above the law but only refers to his duties under Article II.

    If a president is not in ANY sense above the law, he or she can be subpoenaed, indicted, even tried and judgement found in criminal court. The use of the word SHALL in Article I Section 4 of the Constitution seems to indicate Congress would have no choice but to vote to remove a president convicted of a high crime by the Judiciary.

    A self pardon or pardon of those involved in a case against the President would also violate the Constitution because it would negate the Constitution's provision to remove a president and, potentially, ALL other Civil Officers from power.
    …. Article II Section 1 says a president can be removed from power.
    … Article 1 Section 4 says "the President, Vice President and all Civil Officers of the United States, SHALL be removed from Office on Impeachment for and Conviction of, Treason, Bribery, OR other high Crimes and Misdemeanors".

    — > The subject of Article I, Sec. 3, cl. 7 of the Constitution concerns Judgment and penalties that SHALL and SHALL NOT be imposed by the Legislative and Judicial branches. Some have inserted the adverb "After" in their summary of this clause … but it's NOT in the original text.

    This clause clearly defines two trials, two judgments but only one punishment by statutory law. There's no time qualification for criminal prosecution…
    … nor can their be if impeachment for things like treason and bribery includes statutory conviction. The Legislature cannot impose criminal punishment and the use of the word SHALL shows Congress cannot deny criminal punishment.

    Congress can file Articles of Impeachment for serious offenses that are not defined in statutory law to remove a president but can't file a criminal case. There's nothing to say the Legislature can negate criminal prosecution from the Judiciary or that Articles of Impeachment must be filed first.

    — > A pardon requires an admission of guilt and the acceptance of it. If there is no crime, no pardon is necessary. If a pardon is not accepted, it can't be filed with the court. Nixon's case is that he admitted guilt in an impeachment case but was "pardoned" which is unconstitutional.

    Nixon should not have been pardoned because it required him to sign an admission of guilt. All high crimes are impeachable cases and should be unpardonable from the time a formal investigation is announced. Congress and the courts can determine the extent of punishment after judgement but dismissal of criminal charges should not be an option.

  • Oliver Phippen

    The dims are so desperate that CORY BOOKER has put his lively hood on the block threatening to expose documents to the public that the committee has deemed confidential ?? Looks like Cory Booker is willing to cease his employment for ever ??? Like KAP ?? The dims are cracking ?? Big time ??

  • Priestess Pachina

    GET OUT U DONT VOTE IDIOTS AND HOW MUCH MONEY DID U MAKE FOR YOUR DISRESPECTFUL COMMENTS. BLAH BLAH UR OPINIONS ARE NOT WARRANTED NOR CONSIDERED SINCE YOU HAVE NO CLUE ON OUR CONSTITUTIONAL REPUBLIC . GO BACK TO YOUR BUBBLE THINKBOX OF SOME PARENTS BASEMENT GO SUCK YOUR THUMBS AND WHINE THERE PLEASE . SINCE YOUR NOT AN ADULT NOR ACTING LIKE ONE YOUR OPINION CAN BE FLUSHED. THIS IS MY VIEW FROM THOSE DISRUPTIVE CHILDREN

  • Priestess Pachina

    What’s the matter whitehouse pissed huh lol since your Nazi party is loosing control and your Nazi party can’t do underhanded stuff anymore. Awwww do I felel bad for your Nazi party ahhhh NOPE !!!!

  • Priestess Pachina

    Hey whitehouse which SOROS Nazi organization funded you ???? Since your talking about dark money , your DEMORATS party has much to be exposed on that dark money your suggesting in this hearing , so let’s openyour list to the public. Stop using we the people want to see , your narrative is false, you want to know since your DEMORATS party have much connection with the Nazi SOROS in my opinion

  • Mysty333

    No – the government did not decide – Kavanaugh decided to delay the abortion! This man talks in circles instead of specifically addressing questions!

  • Rindola981

    The Dems circus continues. From what I can tell, it seems to be the same 2 or 3 people interrupting over and over and over again. I pray for the Dems to wake up and #WalkAway.

  • Priestess Pachina

    Oops there is the trigger for the child’s mouth so whitehouse did you offer lunch at McDonald’s for the disrespectful child just now hummm ???

  • Priestess Pachina

    So since that crowd is all staged to disrupt when signaled , my opinion remove them all so we can have a respectable hearing without those children’s ignorance

  • Priestess Pachina

    How about the 75 liberal judges that the traitor obumbum put in , if u want to talk about leaning, let’s talk whitehouse about your party rigging lower courts

  • David Halseth

    Seems like a waste of time to me. Most every Senator has already made up their minds…so just grandstanding but interesting to verify why Congress rating is a 6 to 11% depending on the poll. Silly people we send up there. Watching some programs on Generation Z…looks like a wonderful group of kids that are not stupid and really educated on these things. Hope I live long enough to see some real people sent to Congress that really care about We the People!!!

  • Hudson Keelin

    Dems must be Dem witted, the truth is right in your face and you can't even see it.
    What America and the people have been though sense the death of JFK and Trump is pushing the exact same thing JFK was pushing yet the Dems can't still see the truth.
    Think about this, JFK Jr was a close friend of Trump's. They had a very good relationship with each other. Would you have voted for JFK Jr.

  • Marosi Alvarez

    Sen Booker's tone is demeaning and patronising. As a Mexican American I don't need someone like him to speak for me, but I do need a SCJ like judge Kavanaugh to uphold constitutional precedents and rulings and prevent our nation's judicial branch from becoming a political pawn in the hands of liberal anarchists

  • veracsthane

    45:30 its because the bullies are cry bullies and if you beat them like they deserve they get you charged with assult unless you had a phone or some other evidence of the harassment and even then things could still no go favorably so the bullied are forced to bite there tongues until they cant. in my case it was known with no doubt that if i lost my shit people would be beat to the hospital or death. they told me when they decided they pushed to far because my face was twisting so much that they new they went to far. we ended up friends unironically.

  • Jay Graphix

    Feinstein has no clue what she is talking about … This is what you get when you have people making laws that haven't a clue about what they are making laws about. This lady banned "assault rifles" and I bet she has never shot one, and couldn't describe one. Pretty sad. She needs to retire.

  • Hudson Keelin

    No your not correct, it's not their 1st amendment that they are pushing it is just a cover up for their failures.
    I believe that they are just rude and aregant and they mad because the truth about what they are doing is probably against the law.
    Must push back to get rid of president Trump because he is going to hang many of them and they know it.

  • Lexy PoliticallyRYT

    Corey Booker doesn’t want to make things better or he would be trying to. The questions he is asking are making it seem like this one judge could make all these things happen. Ridiculous. He is just trying to grandstand. He already knows how he will vote. Sickening spectacle.

  • Donna Vorce

    Weird how the woman behind Kavanaugh is the same woman who replaced Plaid Shirt Guy at the Montana "rally" . . . quite a coincidence isn't it?

  • Scott Settles

    @1:23:00 Hiring a all-female clerk staff isn’t “equality”. It’s preferential and arguably paternalistic pathological altruism. While I’m sure their academic background and experience was top notch, I find it hard to believe there were no male applicants. This means male applicants, regardless of qualification, were rejected using discrimination based upon sex.

    Arguing to be for “equality”, implying to mean equality of opportunity while actually practicing attempts to impose equality of outcome, is not the correct way to be inclusive to any group. In fact, it reinforces the zero-sum fallacy by taking unjustly from one group to favor another. Finding ways to be inclusive is important, but don’t b.s. us and think we don’t see it clear as day.

  • dirtyvarmint

    Question: Say a person got an abortion and it caused them long term guilt and regret, emotional distress and depression. Say the person thought it was offensive to God and they felt their eternal salvation was forfeit because of their choice.

    Since the government made it legal, and readily available, that conditioned the person to think that it was morally okay. The person didn't consider the moral implications due to it being legal. Say the person felt pressured and rushed by the clinic, the spouse, the family members to get the abortion. So they made a hasty decision based on convenience. Say the plaintiff saw it as an 'abortion on demand' and the clinic joked about how "it's no big deal, we have girls who come in on their lunch break to have the procedure done."

    Would the person be able to make a case on that? Who would they sue? If the court agreed that the government contributed to the emotional distress and hardship and the possible loss of eternal salvation for the individual, by promoting abortion and allowing it to be performed 'on demand'…, would they be able to overturn Roe v Wade? Make it illegal?

  • Scott Settles

    Sen. Hirono appears here as a condescending, spiteful person. Not only were her questions ill-formed and apparently designed to use several rhetorical tactics instead of being designed to seek answers, she felt it necessary to disregard any attempt by the nominee to provide an answer which would contest the pretentious pomposity on display by such an unprofessional, activist witch. Indeed, I’d have been hard pressed to give negative marks had he simply told her to shut the f*ck up… she deserved that and far more.

  • Mr Rytte

    Don't trust the transcript!

    I was looking for Sen, Grahams "Law of Armed Conflict" questioning. As I was following the audio with the transcript of hearing I noticed some dropped words like "uh" or repeats of the same word. OK, no biggy. I would even understand words that sounded similar being transcribed wrong, I see that a lot on closed captioning. Then I hear 2001, but read 1991. What? that's not even close.

    At 2:43:39, Senator Lindsey Graham asks Where were you on September 11, 2001.

    This is the transcript.
    557:13 >> WHERE WERE YOU SEPTEMBER 11,
    557:14 1991?

    That's weird. Then a last name gets changed. At 2:45:07, Judge Bret Kavanaugh says the name Sarah Taylor, not Sarah Wright.

    The transcript,
    557:41 I WAS WITH SARAH WRIGHT FROM THE
    557:42 WHITE HOUSE AND I WAS WATCHING,

    What does Sarah Wright have to do with 1991? Probably nothing, but I can now understand how deaf people may have a completely different take on things because transcripts "LIE".

    I did find what I was looking for, and more than I expected.

    2:45:45 Law of Armed Conflict.
    557:54 THE LAW OF ARMED CONFLICT?

  • Joseph DuPont

    What about Clinton rape victims?

    By THE WASHINGTON TIMES – – Tuesday, September 18, 2018

    ANALYSIS/OPINION:
    Christine Blasey Ford’s recent rape claims against U.S. Supreme Court nominee Brett Kavanaugh are very serious. So much so that I think Mrs. Ford and Monica Lewinsky should console the alleged rape victims of former President Bill Clinton.
    Apparently Mrs. Ford’s brother is somehow connected with Fusion GPS’ false Trump-Russia-collusion dossier. Not to mention that Mrs. Ford could have brought up her accusations when Judge Kavanugh was in the news in 1993, looking into the strange death of Vince Foster.
    It is amazing that the media will never ask the Clintons how it feels to have “false” allegations of rape facing you.

  • MultiMicelle

    at 11;58 when protesters are disrupting the hearing, feinstein, leans towards grassley and says, chuck, I dont think they should be taken out, they been here all day, then Grassley says, your advice is to leave them, then she says, my advice is to… then gets cut off, and keep in mind, she is sitting on the then, anonymous kavanough accuser's letter. it is so obvious, especially now looking back at this hearing/lynching, and now these false accusers? this is all very well coordinated , and planned hit job on this SCOTUS

  • stonehillady

    What made the grade for me was when the lady ask her what were the things you remember the most about that incident was, "I remember, the rooms, I remember the stair way, I remember their laughing at me BUT she never remembered their faces……that tells it all for me. ! It could have happened yes, but not by the guys she thinks did it.

  • Terry Amerson

    I agree Brookhaven all has shown himself to be a decent man with a decent family so anyone that just wants to make judgements against him so quickly not knowing anything really about him you know you can do what you want to it's a free country but I certainly certainly believe that you will pay for it in the long run

  • Darlene DeVegan

    Ford didn't know how she got to the party or how she got home from the party or where the party was or what year it was.
    In the four people she said was at the party all denied it she's a loser liar

  • StationRussification

    He is a nice man is all the posts here hahahahahahaha, dude tuned out to be the biggest douche of all time. If U want to make an impression on America just answer yes no or I do not know (let your lobbiests be your voice box otherwise NOT in a hearing) other than that U R suspect and if U do it with a hostile attitude U look quilty, that's right out of any police or lawyer's play book on interogation. To bad sexual assault is an issue here having said that Kavanaughs attitue is THE reason to deny him infact he needs to step down and retire.
    NOTE: I have faced a Judge in a DEPT. as a defender & I was totally innocent and I knew showing my anger to any thing was not in my best interest thing is I did not have the responsibility of considering the USA's best interests & Kanavaugh could not contain himself enough to recognize that. BTW I won that case.

  • Shell Shell

    We the people still believe that a person is innocence until proven guilty! Another thing, lets vote out all the bad apples and replace them with good ones! I know Hawaii, California, and New Jersey don't have good apples so those states need to have them replaced. I'm sure there are more so do your homework!

  • wildfireintexas

    I wish Kagan and Sotomayor had been grilled just as much a Judge Kavanaugh. They have no business being on the Supreme Court. They are ridiculous embarrassments.

  • swagmeister

    Mazie Hirono literally does not even know how to pronounce "amicus brief." What the fuck is this dumb hag doing on the Senate?

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