Full Video: Day 3 of Brett Kavanaugh’s Confirmation Hearings
will judge I see you got here without my walking you in good morning good morning welcome back of course that’s still all the people that are here for three days as well as the people that might be here just for a few minutes everybody’s welcome your testimony yesterday over 30 hour day made very clear that you have strong command of the law and even ranking member find sign said that you were forthcoming in your answers to questions 12 years of exceptional Judicial Service and that obviously includes your 307 opinions that you wrote and hundreds more that you joined in make you very well-qualified receive a promotion from the second highest court in the land to the highest court in the land and we will have the American Bar Association in tomorrow that will say particularly the same thing I’m particularly impressed with your lifetime of public service that tells something about you but also more so than your 12 years what you’ve done has an outstanding Professor you’ve talked to great deal about being a coach for your daughter’s you’ve talked a great deal about volunteering for meals service I’ve only done that once in my life so and I do it more but you do it regularly so you’re to be complimented and most importantly being a father and of course I’ve enjoyed conversation with your wife and two daughters and my wife was here yet today and she was talking about that all last night talking to your wife I mean thank you and I heard some of my colleagues I’ve had some of my colleagues as I get into some of the biz so this committee complain again yesterday about publicly releasing committee confidential documents but anyone who didn’t get documents release to use during the hearing I have to say is I’ve tried to cooperate make everything available to everybody that they wanted the only have themselves to blame if they didn’t get the documents they wanted this is what I did a long time ago send a letter to each member of this committee on August 22nd and short quote from that is quote invite all members of the committee to submit to me by noon August 28th a list of document control numbers specifically identifying committee confidential documents or documents public release with redactions that I’m Amber wishes to use in the hearing and I said I would work with the former and current president’s to secure their public release and that meant working with lawyers and the Department of Justice on a redaction and all that stuff Senator Klobuchar was the only senator who requested the release of specific documents and we see cured their release and as she told me yesterday she gets an a for her operation she does get an A Virgo operation every senator who complain about this process needs and only looked a Senator Klobuchar example of sea that my process was fair and would have resulted in public release of documents before the hearing if they had only asked me but then yesterday and I think we’ve accommodated these Senators but Senator Leahy Koons Blumenthal and Booker ass that I obtain the public releases certain confidential documents and I have attempted to do so despite the untimely request these Senators could have made the same request last week but maybe that would have deprived them of them or talk that they been able to express about my Hiding of documents with respect to Senator Booker’s question to judge Cavanaugh my friend from New Jersey asked the nominee to answer some quite regarding an email exchange from over 15 years ago without showing the nominees email in question and then you know what happened the senator from New Jersey he blamed it on the fact that the email was labeled comity confidential well there was nothing preventing any senator from asking me before the hearing to get this document publicly released in fact was made to release these documents for the first time last night after the senator asked the question of the nominee we didn’t get some requests in until MIT after midnight and we’ve had we ain’t quite frankly had to have quite a argument with people in the Department of Justice to get these released and and the redactions that have to be done what Senator would want to release their emails with all the emails and everything without read action of phone numbers Social City numbers addresses and Social Security numbers that all has to be done under law to reduce this but I think that you have the Department of Justice cooperating with that so before this day is over members will have the documents that they need to ask the questions that they want to ask now I before I ask my questions in one Senator wants to make a 30-second comment I’m willing to turn to that but let me say each of our 21 Senators on the committee I get to ask questions for the 20-minute round every couple hours we’ll take a break and and that would include a lunch break and judge if you need a break at any time I have your staff informed my staff and it is is a standard practice for every judicial nominee the FBI conducts a background investigation and provides the signage a background report moreover like with prior nominees including Gus’s Kagan and Gorsuch there are number of Presidential records that are restricted by federal law from released because they contain sensitive information including highly confidential advice delivered to the president and personal identifying information such as full names date of birth and social dirty numbers so at the end of the questions today will move as we have before into a closed session with a nominee where will review the FBI report and any comp committee confidential records that any member would like to discuss this is standard practice that we do for all Supreme Court nominees and every members invited to participate and now I would like to call Sandra Ronald thank you very much mr. chairman I wanted to set the record straight on a matter that was brought up late last night with regard to me and my questioning of Judge Kevin on his relationship to judge Kozinski in with her I would ask judge for the same question I’d like to quote from my response to the Washington Times on September 4th 2018 and that quote is and this is from me if president Trump would be so enlightened as to withdraw judge Cavanaugh’s nomination and I’m going to judge Watford to the Supreme Court I was Ask Judge Walker Watford about his relationship with judge pazinski thank you very much mr. Sherman all that sort of thing because we worked my staff was here till 3 trying to accommodate everybody that asked for documents would you proceed please point out the absurdity of the process and that’s what’s deeply frustrating to me and and deeply disappointing the process you read you invite the committee members to submit to me by noon on August 28th a list of document control number specifically identifying the committee confidential documents or documents publicly released with with reactions that the members wish to use in the hearing so long as it’s a reasonable request but no guarantee that we’ll be able to use them questions about and then you’ll go back to president Trump go back to President Bush for review now I see that plainly remember people for into think that we could somehow ask you about the documents reveal to you what questions we want to ask and then it’s not in your determination goes back to Bill Burke who is in making a determination specific documents I brought up is a great illustration of the absurdity the process of a document titled racial profiling and by the way I asked about his views today about that issue the controversial issue reveal his thinking about that issue at the time and the fact that there is nothing in that document that personal information there’s nothing National Security relay the fact that it was labeled as committee confidential exposed is a bit of a champ and we are now this is never been done before we’re holding back not only not only holding back document labeling committee confidential but not even giving us the time to review those documents in addition to that this is just the tip of the iceberg of all the documents that will continue to be released by assume up until the time that we have a vote on the senate floor and beyond that I’m sure you can understand sir how it puts all of us you have to go then go back to a person named Bill Burke to decide if some document was an associate was an associate and colleague of the nominee to figure out which documents really relieved and by the way if he’s all these documents they were personal information of these were things that were delicate information but as I read these the documents we got the night before the hearing including the ones we got before the hearing so many of these things are not controversial bring up the issues that we should have a time to digest and ask the Kennedys about Nissan two points won the word sham Senator Leahy chairman of the committee accepted documents committee confidential Gorsuch nomination accepted committee documents committee confidential at that particular time documents as we’re getting documents for you now in the same way so you read for my letter and you called The Champ was it a sham when we did it for Gorsuch was the Sham when we when Sandra lady did it and the reason we did it is so that we could get documents so you could review them almost from I think August 5th or sometime maybe was August 10th so you can stay very early and then don’t forget that documents come committee confidential and then don’t forget on a regular rolling basis they’re not committee confidential and then put on our website so 300 million people can view them if they want to and then the second point about the lawyer for president boys all of our conversations last night where would the Department of Justice hope you understand that these people in the Department of Justice are people that are there for years under both Republican or Democrat Administration they’re supposed to be non-political I hope they’re non-political their civil servants we ought to respect their judgment as a try to take care of the privacy of people by redacting late into the night social security number phone number cell numbers and all those sorts is a senator and then we also have sugar white house but I want to go and let him comments under Grassley may be recognized after and the White House thank you I was disappointed to see last night that’s of our colleagues are unwilling or unable to conduct themselves in this hearing with regular order in accordance with the rules of the committee in the rules of the Senate I know last night some of our colleagues even try to cross-examine the the nominee about documents but refused to let him even read them members of the Senate and members of Congress generally are privy to sensitive information including applied information on occasion and were expected to protect that information for all of the obvious reasons and it’s inappropriate to raise these in an open session for the committee and I think our colleagues understand that but nevertheless decided to go ahead anyway so I just think it’s important that we were mind one another that they’re clear rules about the discussion of confidential material and that there can be no consequences to the violations of those rules and this idea that somehow President Bush when his lawyer and the president decide that information represents legal advice or other protected information that was given to the president during the time he was President of the United States and it somehow he is unable to make a claim of privilege or that wants to claim is made and consultation with his private lawyer that if that would be not respected by the Senate is outrageous and so I just I thought we were doing pretty well yesterday things went off the rails it looks like last night and I hope we will return to the hearing process that respects the rules the Senate and that treats each other’s and particular the nominee disability that he and this process is entitled to and I’d encourage your colleagues to avoid the temptation to either violate the Senate rules or to treat the witness unfairly by cross about a document and refusing to show it to him and violating the confidentiality of some of these documents as requested by President Bush and consultation with his private lawyer directly invoking sponsor documents no sent rule account or what is going on right now if there was off. That was following this archives is partisan Opera this part is not really following his involvement in this process that I think in my opinion undermine the process and the idea that we could somehow go through your lengthy process last minute but violated the rules for and I’m told that the committee confidential rules consequences it’s so sore I come from a long line is all of us Americans understand what that kind of civil disobedience is my understand the consequences so I am the right now before your before your process is finished I’m going to release the email that way profiling and I understand that that the penalty comes with Potential ousting from the Senate and a senator cornyn believes that I violated Senate rules openly invite and accept the consequences of my team releasing email right now and I’m releasing it to expose the number one the emails are being withheld from the public have nothing to do with National Security nothing to jeopardize the sanctity of those ideas I hold dear instead but I’m releasing this document right now to show sir is that we have a process here for a person the highest office in the land for a lifetime appointment were rushing through this before me and my colleagues can even read and digest the information can I ask you do you want the singer invoke my name on an opportunity to respond I did not mention his name but he mentioned my name and he’s right running for president is no excuse for violating the rules of the Senate of confidentiality of the documents that we are privy to this is no different from the senator deciding to release classified information that is Dean classified by the executive branch because you to disagree with the classification decision that is irresponsible and outrageous and I hope that the senator will reconsider his decision because no sitter deserve to sit on this committee or serve in the senate in my view if decide to be alone to themselves and willingly flout the rules of the Senate and the determination of confident you that charity and classification that is irresponsible and conduct Unbecoming a senator just a minute I’ve got something I want to say I think we ought to be thinking about this is the last I got three Senators asking for Senator Kennedy Senator Whitehouse and senator this is the last day so he will be here but I’ve been told that the Senate minority leader or somebody the Democrat party’s invoked the 2 hour rule if the 2 hour rule is involved that’s you you nobody on this committee Republican because this is the last day he’s going to be here and and so I hope you don’t invoke the two-hour rule so if you want to talk now before I start to ask my questions I’ll Do It Center the White House was the next one Kennedy thank you mr. chairman I’d also like to be recognized because I am in a similar situation as takes 30 seconds less silence implied consent speaking for myself I want to make it absolutely clear that I do not accept the process of this committee confidential routine that we went through I do not accept its legitimacy I do not accept its validity because I don’t accept its legitimacy or validity I don’t accept that I’m under any obligation I have not made a big fight about this I just gone ahead with my questioning butt last silence implied consent I think that that rule as ineffectual as if the chair at unilaterally repealed the law of gravity it simply isn’t so I haven’t agreed to this rule I haven’t voted on this rule this world this in our committee or Senate rules and I’ll leave it at that did you want these speaking I am not willing to concede that there is any legitimacy to this entire committee confidential process in this hearing was it just nothing sensitive nothing personal nothing classified and nothing confidential has been released was did you object to it when I was previously used under other Supreme Court nominees it was developed then through hey bipartisan process in which only reached an agreement by unanimous consent effectively free confidential not sensitive that are never the less covered under this Senator Kennedy dr. Tellez my colleague raised point I allowed Senator Booker to continue sometimes patience ceases to be a virtue but I didn’t think in these hearings following the Chairman’s example that was that was appropriate Senator Booker examined judge Cavanaugh about the racial disparities in this country I gave Judge Kevin all I think it was 6 minutes and 30 9 seconds to respond uninterrupted so I was trying to be and we’ll continue that I’m trying to be fair to both sides following the example of our chair thank you mr. chairman there’s been a lot of commentary over the last couple days about how we are in Uncharted and unprecedented territory here that the process has broken down reflecting what is happening in our nation generally and predicting the last couple days with the publication of a new book and iPad that indicate very serious chaos and breakdown in other parts department and I’m hoping that we can come together as a committee and if there are any rules do we done in the past which is adopt them on a bipartisan basis that’s been the way that committee confidential designation it’s not classification there’s no classified documents here it’s a designation it’s an arbitrary and seemingly capricious designation designed to spare people embarrassment possibly but all these documents belonged to the people of the United States covered by the presidential records act and eventually they will come out so shame on my colleagues if they conceal them now and then I asked the benefit of questioning this nominee who comes before S4 last time today he comes before us for the last time today this is our last opportunity up-or-down whether he’s confirmed or not to question him and like any traveler documents have to be assessed as the trial goes on as this witness response to our questions we can’t give the chairman a list of what documents are relevant before we here is answers are Collies questions so not only from the standpoint of there being no basis for the rules but also to deny the fairness and effectiveness of the process that’s the reason that we were making is protest and we are here under protest that’s the reason why I asked to adjourn so that we could consider fairly all of these documents I appreciate that Senator Grassley has decided to release the documents that I would have used yesterday please release the documents that Senator Booker commendably would have released even if not reclassified or redesignated but I want to reserve the right I hereby reserved how to release documents before any confirmation vote so that my colleagues can see what the truth is we are literally trying to get at the truth here and between now and any vote on confirmation is the right in my view on the part of every member of this committee to release documents that she or he believes are appropriate and to delegate this decision 2 + on a pointed and unconfirm and largely unknown figure Bill Burke who used to work for the nominee the height of irresponsibility thank you I want to start by pointing out that this part of the discussion started last night I was turned it as with any witness in a courtroom or any proceeding before this committee I want to make sure that when a witness is questioned about a particular document the witness has access to that document it’s not fair to the witness the witness who has over the course of his career been involved in the creation the authorship the review of not just hundreds of thousands but many millions of documents in his lifetime it’s not fair to this witness or any other witness in any other proceeding anywhere do not give the witness a copy allow him to respond to it while he’s being questioned about her so that’s why I offered to Senator Booker and Senator Booker and I had a conversation with a very helpful committee staff last night and they’ve agreed in the meantime to release the same document that was now the subject so the process worked it it works we do have the ability to make these things available to make them public so that we could be fair to Senator Booker we can be fair to the witness to the nominate I do want to point out since process is somehow rig that it’s charged that it’s unfair but it’s arbitrary that is capricious I completely disagree we are not dealing in a lawless environment here we’re dealing here with the presidential records act we got documents that are the subject of privileges put privileges that beds that have to be a certain Bill Burke is the designee for that presidential Administration and has the prerogative of a certain privileges but truly accommodation with the Senate with the Senate Judiciary Committee to allow us to gain access to other documents through which we would never otherwise be able to have access agreed to hand those over with the understanding we have this committee confidential process and they’re means by which we can clear documents like this one that we would otherwise not be able to clear it works here it’s been cleared and I think we should move forward thank you who wants to go first that by agreement with private lawyer Bill Burke the chairman has designated a hundred and ninety thousand pages of Cavanaugh’s records committee confidential and by doing this Republicans argue members can’t use these documents at the hearing or release them to the public unlike the intelligence committee and I’ve been a member for about two decades the Judiciary Committee doesn’t have any standing rules on how and when documents are designated committee confident previously the Judiciary Committee has made material confidential only through bipartisan agreement that has not been done in this case so this is without president Republicans claim that German Lahey accepted documents on a committee confidential basis during the Reagan Administration is my understanding that those documents were processed through the National Archives not private partisan and Republicans agreed 99% of Elena kagan’s White House records were publicly available and could be used freely by any member by contrast the committee has only 7% of Brett Cavanaugh’s White House records and only 4% of those are available to the public no senate or committee rule grants the chairman unilateral authority to designate documents committee confidential so I have no idea how that stamp committee confidential God on these documents sent a letter on August 10th 2018 objecting to the blanket designation of documents is committee confidential I offered to work with the chair he refused Judiciary Democrat sent the chairman a letter on August 28th restating the objection to the chairs designation of the documents as committee confidential and requesting public release as I looked at the documents that are committee confidential they do not affect any of the usual standards that would deny committee confidentiality and mr. chairman I think that’s a problem I think we’re entitled to all records and I think the public is entitled to all records and that are and do not put forward personal information or information that otherwise should not be disclosed so I do think we have a problem and I think for the future we are to settle that problem with some find a written agreement between the two sides weather that’s an agreement between two sides of the entire committee or between the chairman and the ranking member I think it doesn’t matter but I think the fact is that we should agree on who determined something is committee confidential what the criteria are for and the released to the public and particularly in the supreme court hearing I don’t want my silence to be interpreted as a consent to the process that we face for the Senate Judiciary Committee it is unlike any process I’ve ever seen this designation of committee confidential should be put in the store context there will be an opportunity for us later this afternoon to meet in confidential and seek private session to discuss this nominate that is not unusual it is done for virtually every nominee some of the meetings are literally last a matter of a minute or two and we say there’s nothing to talk about and we’re leaving but it’s happened in the past whenever we dealt with too many confidential it was something that was very specific and usually very personal to a nominee and it was done by bipartisan agreement that we would protect the nominee from assertions or comments that may not have any truth to them whatsoever somebody should take into consideration that is a far cry from what we have face with this nominee I can understand and I said this on the on my opening statement here the authority that we have given to a man named Bill Burke former assistant to the nominee but we have said to mr. Burke you you will decide what America gets to see about Brad Kavanagh you will make the decision as to which documents we will be allowed to discuss openly and publicly and which documents we cannot who is this man by what Authority could he possibly be denying to the American people information about a man who is Seeking a lifetime appointment to the highest court in the land the National Archives is actually the starting point of this process I put in the record yesterday escaping from the National Archives disemboweling this whole process saying this is not the way we’ve done this in the past we usually initiate this please give us a few weeks to do it an orderly way but the decision was made by the White House and the administration not to go down that path not to take the same course we have on previous nominees but instead to allowed to this gentleman Bill Burke a private attorney the authority to decide what the American people can see about the background of Brad Kavanagh and other capacities who is Bill Burke all that I know of him is that he was once an assistant to the nominee I am told that he is not only the attorney George W bush but also for the White House counsel mr. began mr. priebus the former Chief of Staff to the president of the United States and Steve Bannon a man who might couldn’t characterized in a few words but he’s his purse attorney and in this situation he is now the litmus test he’s the filter to decide what the American people will see about this nominee and that’s why we bring this issue before you lest you think we are carping trifle here we are talking about whether the American people have the right to know and we now know that less than 10% of the documents reflecting the public the public career of mr. Cavanaugh and then I made available to this committee and I just want to say to my colleagues in particular my colleague from New Jersey I completely agree with you I concur with what you were doing and let’s jump into this put together I hope my other colleagues will join me so if there’s going to be some bution against the senator from New Jersey Count Me In I want to be part of this process I want understand how Bill Burke is private attorney has the right to say as one of my colleagues mentioned it should be considered a classified document a top-secret document a document that relates to the National Security the United States by what right by what Authority can Mr Burke possibly designate a document as committee confidential he has no authority to do that you only has Authority because he has the consent and the cooperation of the Republican majority on this committee that is the only thing that brings us to this moment and let me just say in clothes one last thing I’m sorry that one of my colleagues would characterize all of us on the Democratic side on the first day of this hearing as contemptuous I have never heard that said before in a full committee meeting but it’s been said and I’m particularly sorry that singled out one of our colleagues on this side and accused him of conduct Unbecoming a knighted states Senator I think statements like that are personal they are disparaging they question the motive of a colleague something that we should do our very best to avoid United States if we’re ever going to restore the reputation of this body gym and I’m looking at a Wall Street Journal article during the Elena Kagan nomination it says document production from Elena kagan’s years in the Clinton White House counsel’s Office was supervised by Bruce Lindsay who’s Whitehouse 10-year overlap with Ms Kagan Bill Clinton designated mr. Lindsay to supervise records from his presidency and cooperation with the National Archives and Records Administration under the presidential records act so President Bush by choosing mr. Burke doing exactly what President Clinton did and choosing Bruce Lindsey up for that same purpose into mr. chairman I to refer to a so-called committee conference at the confidential documents theme such by one bill Berg and we all know who he is at this point and had the nominee asked me for a copy of that so-called committee confidential document I would have been happy to release it to him or give it to him I am releasing that document to the press and I would defy anyone reading this document to be able to conclude that there should be deemed confidential in it in any way shape or form thank you mr. chairman I know you’ve mentioned the number of times that I went through the process I do want to point out however that I also was on numerous letters asking for all these documents to be released and that my colleagues have repeatedly asked for documents be released and I go back to what happened on the first morning of this hearing and that is that we pointed out that when there are 42000 documents that are dumped on us and one night there is absolutely no people are going to be able to adequately review them and as they review them they’re going to find document that they want to be made public that they want to ask the nominee about so the whole point of this is because this hearing was ramrodded through and we I’m giving say maybe the month it would take to look at these documents where are we are where we are so my remedy for this in addition to making it clear that I join my colleagues that that we support with Senator Booker doing here is that you must somehow expedite the review of every single document and we must have some kind of rules in place to get them out I understand you want to take out Social Security numbers and things like that that’s normal we simply cannot hide these documents from the American public it is the highest court of the land and I looked at it I was looking back at everyone was citing people the founders of this country and I found a quote that really works here from a popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy that’s what we’re talking about here by ramrodding this through four political denying us the access to the documents were denying the public the right to see what’s out there and it’s just not how we do things in my state and it’s not all we’ve done things in this committee calling so early and then you but before they had a couple things she just reminded me of in her comments number one was to take care of all the people that didn’t act to promptly like you did Senator Klobuchar that’s why extended it and gave the courtesy of doing whatever anybody else wants wants now and those are can neither be brought up now those that you’ve got can be brought up right now to him and the things that that aren’t clear that you want to bring up with the judge you can bring up in the closed session today and the other thing is when you talk about getting all the documents I don’t know who might work for members of this committee sometime want to be on bringard and and Princess would you we didn’t ask for all the documents that taken head and emails or whatever communication she would have had when she worked with senator would you would you want to be exposed to that sort of thing if it if you want everything to be made public or all the emails that you have whether I think they’re protected for 50 years for United States Senator so you talk about the public right to know you want to give up your emails right now make them public I don’t think you do Sandra Lee mr. chairman I want to see him deeply sympathetic to the frustration people feel when they don’t have ax the documents they want as United States senator of face this other number of occasions there been times when we’ve been called upon to vote on legislation literally at the Midnight Hour sometimes much later than that that we haven’t seen until moments before it was voted on there been other times and I kid you not when I’ve been asked to vote on a piece of legislation that has an a next to it and I’m told that I can’t see the annex to the legislation because it’s classified and unclassified in the way that I don’t have access to because of a committee assignment that I do not have incredibly frustrating in those circumstances we look for a demon there are demons in those circumstances they are too numerous to name here in this circumstance there is a demon but that demon is a lot of our own creation is called the presidential records Act that’s the demon that you’re after here that is the only reason we’ve got this issue now the custodian of those documents holes and exercises a privilege on behalf of the Bush Administration these are we would otherwise not have access to because they are privileged pursuant to an agreement with the Senate as an accommodation to the center the custodian of those records as agreed notwithstanding the privilege Nature Made nature of those documents to hand them over to us with an understand when there is a need that are Rises with respect to one or more of those documents to make them public we can as a committee go through a process to do that that is exactly what has happened it’s what has worked and it’s what his work here today if you’re frustrated with the process then let’s review the the presidential records act but we’re just doing what the law allows us here to do these documents are not ours they belong to what else it is not written into the Constitution is not written on stone tablets anywhere that we’re entitled to documents that don’t belong to us it significant that William Howard Taft didn’t release his presidential papers it’s Robert Jackson having served his attorney general didn’t release all the papers he had as attorney general y well I had a lot to do with the fact that they didn’t belong to us if we want to be able to have a process not just with this Administration but in every presidential Administration Democratic Republican or any other stripe in the future we need to respect the process and respect the privilege that is according to documents that do not belong to us that’s we’re asking and the process is working let’s move forward mr. chairman on behalf of this side I would like to just say a couple of things there is no process for the committee confidential it used to be that both sides had to concur the chair and the ranking member but now this is this is just simply not the krays to some extent with this kind of thing committee confidential becomes a kind of a crock and it shouldn’t I think we need to sit down I think we need to have a rule on how committee confidential is determined on what it mean and who makes that decision for all I know some Republican staffer could have made the decision and I just don’t no documents appear our side had nothing whatsoever to do with the designation of committee confidential so it becomes away if there is no rule for the majority to essentially put all information through a strainer should we let this go out public or should we not and I don’t think that’s what this committee is about and chairman Leahy accepted documents on a committee confidential basis during Justice kagan’s nomination and there’s no indication that the ranking member agreed to that at that take their time Sandra Coons whose documents are these These are the American people’s documents of the presidential records that gives us the right to obtain them for Supreme Court nomination after the review of the professionals at the National Archives and Bill Burke is not a professional the National Archives the archives has said that this is not their process equally importantly because some will now make dire predictions the appropriateness of the release of any of these documents Bill Burke himself in his letter to us of August 31st said and I quote the presidential records act exemption one which protects against the disclosure of classified information did not apply to any documents are team reviewed I agree with Senator Booker this confirmation is too important for us to conceal documents that may reveal the nominees views and I think we shouldn’t be proceeding under these Richard Sherman maybe recognize her I hope you don’t say the same thing again so I will not in person I will say something that I haven’t said I appreciate the patience of Jobe that you’re showing the representations for Senator Kennedy and sent early we’re right on point right on correctly stood strong last night challenge me but they they Nollywood collegial but they look to find a fair way to deal with this process and I want to express my appreciation want to clarify something that I said before there is no Senate rule that accounts for this process. This is not a central I did not buy lettuce and Rule but I will pause if there is no Senate rule that that I violated because there’s no Central to account for this process and I said that I respect that. I believe has been fair and good to me I will say that I did willingly violate the chairs rule on the committee confidential process I take full responsibility for violating that sir and I violated because I sincerely believe the public deserves to know this nominees in this particular case his record on issues of race and the law and I could not understand I violated this world knowingly why why these issue should be withheld from the public now I appreciate the comments of my colleagues is about to close probably ever have in my life doing I am Spartacus moment my colleagues numerous them said that they to accept the responsibility they’re very serious charges that were made against me by my colleague from Texas I don’t know if they were political Bluster or sincere feelings if what he said was sincere there actually are Senate rules governing the behavior Senators if he feels that I and now my fellow colleagues who are with me have violated those rules if he’s not a tempest in a teapot but sincerely believe that then bring the charges go through the Senate process to take on somebody that you said is unbecome to be a senator let’s go through that process because I think the public should understand that it a moment that somebody’s up for a lifetime appointment at this issue of the public have a right to know this is not about the presidential records Act it’s not a violation the presidential presidential records act not a violation of Senate rule sir but if somebody I hope that they will follow through with me and Senator Durbin Senator Coons Senator Whitehouse Senator hirono Senator Blumenthal now Senator Feinstein Feinstein I hope that they will bring charges against us and I’m ready to accept the full response for what I have done the consequences for what I am done and I stand by the Publix right to have access to this document and no this nominees views on issues are so profoundly important like racing the log and other issues the Senate rule 29 5 the standing rules of the senate for the benefit of all Senators any Senator officer or employee of the Senate who I’ll disclose the secret or confidential business or proceedings of the Senate including the business and proceedings of the committee’s subcommittees and officers of the Senate shall be liable if a senator to suffer expulsion from the body and if an officer or employee to dismissal from the service of the Senate and the punishment for contempt so I bring the charges missed all of us are ready to face that rule on the bogus designation of committee confidential just because they what is a senate rule doesn’t mean it can be misapplied or misconstrued or misused and I think even the threat raised by one of my colleagues here is unfortunate and that is a kind way of putting it with all due respect and I would just make one other point we’re doing here with a lifetime appointment nothing we do here is more serious then confirming a Justice on the United States Supreme Court let the American people appreciate that we are here in the most solemn responsibilities we have under the Constitution we need the full truth just as this nominee is sworn to give it to us we are entitled to it from our Collie and the question is what are they concealing by this procedure what are they afraid the American people will see what are they afraid we would be asking it’s nominate if we had all of those documents that have been denied Us in this jam and charade about a snail been approved through the committee processes it’s been made public the process work and I pledge to work with each and every one of you if you if you got a document as to which it a privilege has been asserted such that it’s not public yet I’ll work with you to try to let’s do it I think we can do this it’s not that difficult we’ve done it several times at least three times now we can do it more nobody else has been around for a long time since the early days of the Republic records but no to the Constitutional Convention were ordered sealed for 30 years after the Constitutional Convention occurred in 1787 all the reasons why but those who participated in it decided that that was going to be to rule sealed 30 years those documents didn’t belong to anyone else they belong to those who attended that convention and participated in it at least two from that list Oliver Ellsworth and James Wilson I believe who were subsequently nominated to serve on the United States Supreme Court no one commanded to my knowledge no one could have gotten notwithstanding year seal agreement the nose to the Constitutional Convention even though certainly would have been probative his for how those people might have served on the Supreme Court yet no one was accusing you of being a rubber stamp for the Washington in in 1795 the United States Senate disapproved of at least one of President Washington Supreme Court nominees this was no rubber stamp and yet they respected the fact that they didn’t own every document that other people might we don’t own these until we have to go through the process a process ordained by Allah that we passed and that only we have the power to change let’s follow that law we can follow the law and respect the process and respect the rights of each of our colleagues and the rights of American people to review documents might be relevant here but let’s go through the appropriate process to do it mr. chairman I am I took nearly 17 years to get my college degree I went to five different institutions I’m pretty sure none of them have been elevated to the Ivy League II that’s right I don’t ever Channel running for president in 2020 or any point in the future I want to make I want to make one more comment and then one request the comment as I hope everybody will record a transcript of what’s going on right now Senator Les explains things I think an eloquent legal terms but let’s talk about the consequences of making this an untrusted body to receive documents under the presidential records act you may Rue the day that you do that because you’ll probably get to your doctor in the future now what I would like to do is ask all of my members just perhaps we can actually demonstrate to the American people that we’re prepared to expose are on Rikers I would like to suggest for the purpose the scotus nomination that all of us waive any right to the speech and debate clause and that we allow all of our email records related to the scotus nomination to be made public on intermediate basis I for one am ready to sign up for it I hope all my other members would do the same thing because in the interest of transparency certainly it would make sense for everyone of us regardless of what we want to do in the future to expose that information to the American people are you done I’ll start with my question by the way we’re going to have to to protect so everybody gets an opportunity to look at the FBI and anything else you want to ask at 1 we’re going to have to go into executive session and get that done before if the Senate does closed down at 2 or I mean if they don’t give us permission to meet after 2 o’clock got to get that out of the way so we’ll do that at that one it were talking about exit closed instead of executive station we’re having to truncate the hearing today well I’m not sure we do have two truncated but just in case well it would be because the minority May object to the unanimous consent the leader would make for this committee to continue to work while the Senate is in session while the Senate and do we not generally wave that rule generally is way but if it’s subjected to we can’t meet so that means that we we want to make sure that we get the executive or the station out of the way may I ask why you’re Schumer is doing that I don’t know we’ve all talked about transparency what is his basis for doing you’ll have to ask him I don’t know if I may I would just like to put a document in the record that the committee was told that President Trump has decided to withhold 102 pages of cabinets White House counsel records Whitehouse counsel records and asserted a new claim of constitutional privilege and of course that hasn’t been done before I’m told there’s no such privilege there’s an executive privilege which is outlined in the presidential records act and requires a sitting to notify Congress and the archivist which was not done here that’s a little bit more to it but I just like to put this in the record without objection yesterday about your record of Independence and impartial ality and you’ve done more than talk about your Independence in an impartial ality you’ve demonstrated judicial values of the bands by my account you ruled against executive branch agencies 23 times between May 2006 January 2009 of course President Bush was nominated who nominated you to the band was a head of the Executive Branch you had no problems ruling against the president who appointed you if that’s what the law required and I have no doubt that you do the same on the spring card if that’s what the law requires you’ve demonstrated your impartial ality some of my colleagues tried to do pick you was hostile to the little guy and always willing to rule for the powerful but your record shows that you rule for the party that has the law on their side so that makes you out to be not a pro plaintiff judger Pro defended judge but to be a prologue so let me ask you about a few of your cases that I think demonstrate that you will vindicate the rights of those world powerful in our society after all our aspirations is Americans is equal justice Equal justice under law soul I’ll ask you on each one of them but just so you know the three cases I’m thinking about is rosello Essex insurance and United Food and Commercial Workers so in the first one the case and what you wrote for the women wrongfully denied Social Security benefits tell us your approach that case this case mr. chairman was a case in which the Social Security Administration had denied benefits benefits who is a case where the Social Security Administration at denied benefits to a woman who had a history of mental illness and they’re done so because at one point in time she had had been employed for a brief period of time with a family member but it has been subsidized and this was in my view the height of arbitrary agency decision making the case head I going on for 15 years was going to the Hall of Mirrors for the woman and we rode an opinion I wrote an opinion reversing the denial of benefits for the woman and also making clear the Social Security Administration that any further delay would not be call Raiden at these kinds of delays in denying benefits to people with mental illness or unacceptable let’s go to the Essex Insurance Company Essex Insurance in the Essex case it was a case of a child family and an insurance company and the child been the victim of sexual abuse and the on three occasions and the insurance company was trying to give pay out Simply $100,000 for the total number of for the abuse and the insurance policy said $100,000 for each occurrence in essence and we ruled that the insurance company had to pay $100,000 for each occurrence each incident of the abuse in there for a total of $300,000 for that case we were ruled in our road for a victim of abuse against an insurance company that was seeking to squeeze the benefits that were paid under a policy that was owed to the to the plaintiff in the case Walmart in the case came from Barbie and the question was whether Walmart had engaged in unfair labor practices against Union in that case and in that case we ruled for the Union against Walmart in that case on the ground that the actual record and supported the conclusion that the company of engaged in unfair labor practices and therefore violated the rights of the union members the weather every nominee does the Supreme Court pray for the last 15 years it’s not about a case or your approach to the law and it’s something that Senator Kennedy talk to you about yesterday it isn’t a very popular subject with some of the current former justices I think I make chief justice Roberts on uncomfortable when I raised the issue with him when I speak for a short period of time at the judicial conference and then there was a former when Justice souter was on the Supreme Court he made the family’s quip about television cameras that they’d have to roll over his dead body I can respect that I just think it’s plain wrong I am any of my colleagues on this committee I believe that allowing cameras in the federal court house would open the courts to the public can bring about a better understanding of the court and it’s work you may be aware that for a number of years I’ve sponsored a bill to Sunshine in the courtroom actor which gives judges the discretion to allow media coverage of federal court proceeding would you keep an open mind on cameras in the car if you have strongly held views on it that don’t be afraid to tell me that you’re caring I appreciate your long-standing interest in the issue and transparency for the courts of course I’ll tell you what we’ve done on my court briefly and then tell you some general thoughts going forward if I were to be confirmed on our court we’ve gone from audio release at some date late late much later than we went to audio release same week then we went to audio release same day and now we are allowing audio to go out live with the oral arguments in that process has been one in which the judges have learned experience and become comfortable with the no transparency that’s become in the same time audio overtime and and that process has worked well in our court on the Supreme Court I think the best approach for me is to listen to the views of people like yourself mr. chairman and others I know who are interested in that to learn if I were to be confirmed from The Experience they are in to see what the Xperia there is like to listen to the justices currently on the Supreme Court as I’ve said Depart of a team of 9 wide want to learn from the other Justice is what they think about this cuz several them as you know well mr. chairman when they are in my Express support for the idea of cameras for oral arguments and then when they were there for a few years switch their position After experiencing it so I don’t want to talk to them why why that position and I as I said to Center Kennedy last me too I’d want to think about the difference between oral argument and the actual announcements of the decisions I think those are two distinct things there hasn’t been much focused on the possibility of live audio for example of the decision announced or video of the decision announcements I think that’s a distinct tissue from oral arguments and I’d be interested in thinking about that and talkin to my colleagues if I were to be confirmed I will have an open mind on it and I do think when you would argument of the Supreme Court as I have many times or you attend the announcement of decisions it is extraordinary impressive to walk into that building and the Majesty of that building be the building itself conveys the stability and Majesty of the law and to go into the courtroom and to see the justices of working together as they do to try to resolve this is extraordinary Li impressive it makes you confident I believe in the impartial rule of law and in each member of the Supreme Court to see them in action and so I do understand point of view on this and I would certainly keep an open mind on it and listen to you and listen to the other justices on the court of course I’m going to go back to bro because most of this look at you as the deciding vote and I asked yesterday if your views on row have changed since you were in the White House you said something to the effect bet you didn’t know what I meant and we have an email that was previously marked confidential but is now public and chose that you asked about making edits to an op-ed that read the following and I quote first of all it is widely understood accepted by legal Scholars across the board that Roe v Wade and its progeny are the settled law of the land and quote you responded by saying and I quote I’m not sure that all legal Scholars refer to row as a settled law of the land at the Supreme Court level since Court can always overrule it’s precedent and 3 current justices on the court would do so this is been viewed as you saying that you don’t Synchro is settled I recognized the word said it’s what legal Scholars referred to so please once again tell us why you believe Roe is settled law and if you could do you believe it is correctly settled so it was referring to the views of legal Scholars and I think I’m I think my comment and emails that might be overstating the position of legal Scholars and so it wasn’t a technically accurate description in the letter of what legal Scholars thought at that time I believe Chief Justice rehnquist and Justice Scalia were still on the court at that time but the broader point was simply that I think it was over stating something about League Scholars and I’m always concerned with accuracy and I thought that was not quite accurate description of legal all legal Scholars cuz it referred all to your point your broader Point Roe v Wade is important precedent of the Supreme Court it’s been reaffirms many times it was reaffirmed in Planned Parenthood vs Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it in that case in great detail The Three Justice opinion of Justice Kennedy just a Suitor and Justice O’Connor went through all the factors the star decisis factors analyze those and decided to reaffirm row makes Casey president on President it’s been relied on case itself has been cited as Authority and subsequent cases such as glucksberg and other cases so that President on President is quite important as you think about started decisis in this context a similar analogy of the United States vs Dickerson case in 2000 where the court considered whether to overturn Miranda versus Arizona or reaffirm it and in that case the court through chief justice rehnquist specifically reaffirmed Miranda despite the fact that chief justice rehnquist had been a Critic of Miranda in his early days and had written some the news quite critical of it it became that so that Dickerson case is Simile precedent on precedent which is important going forward as you think about the starry decisis on calculation for case like Miranda so that’s why both of those cases Planned Parenthood vs Casey and Dickerson are cases where I would refer to them as precedent on presidency you believe it’s settled is it correct law in your View Center there’s that case or on Dickerson or on cases like citizens united or Heller or United States versus Lopez or kilo just the body of modern Supreme Court case law I have to follow with the nominees who been in the seat before have done yes or no will do this when you’re in this seat I’m not just sitting here for myself and sitting here as a representative of the Judiciary and and the obligation to preserve the independence of the Judiciary which I know you care deeply about and so one of the things I’ve done is very carefully what nominees have done in the past what I’ve referred to as nominee president and Justice Ginsburg but really all the Justice have not given hints for forecast for previews and Justice Kagan I think captured it well she often within talking about questions like the one you’re asking you can’t give a thumbs-up or thumbs-down and maintain the independence of the Judiciary so I need to follow that nominee precedent here I’d like to ask that the email at issue be made part of the administration actively took steps to limit women’s reproductive choices this included reimposing the Global Gag Rule to prevent foreign organizations from spending their own money on reproductive health and trying to prevent the FDA from making Plan B contraception available over-the-counter during your service at the White House 201 2001-2006 did you work on any issues related to women’s reproductive health or choice President Bush was a pro-life president in sell his policy was pro-life and those who work for him therefore had to assist him of course in pursuing those policies were there regulatory that was partial-birth legislation that was passed as well and some of those things might have crossed my desk I can’t remember specifics but he I think this came up on Justice kagan’s when she work for President Clinton he was a different view than President Bush on that issue and she had some some work for President Clinton I consider myself working for present it was there to assist him the office of legal counsel concluded that harsh interrogation techniques legal even though Congress had passed the law in 94 Banning torture the office of legal counsel took a sweeping view of Presidential Power and concluded that the president could override the statute in response in 2005 the Congress adopted an amendment Champion by our colleague Senator McCain I was the coast sponsor that stated that only interrogation techniques that can be used are those authorized in the Army Field Manual was he office of legal counsel correct when it concluded that the president could ignore the torture band The Office of legal counsel does memos is as you know and as I’ve made clear and some of my writings the review of Judge David Behrens book some of my opinions as well as the president does not have the authority to disregard statutes passed by Congress regulating the war effort except in certain very narrowly describe circumstances that are historically rooted the common example being command of troops and battle so it’s a general proposition the president has to comply with the law the president is subject to the law including in the National Security context that is the lesson I think of the Youngstown Steelcase of Justice Jackson’s categories Corey three as I’ve said repeatedly in my writings which is where Congress has prohibited the president from doing something it’s critically important That’s essential to the rule of law is Justice Jackson said that’s the equal equilibrium of the country is at stake in Category 3 and I’ve written about that quite frequently thank you today we have a president who said he could authorize worse than waterboarding how would you feel about that so I’m not going to comment on and don’t think I can sitting here on Colonel Glenn I know you’re really specifically how do you feel about that I feel that that I should follow the law as a judge I know the what the law is and I know your leadership on this issue both with the report you did which was the thorough documentation of things that happened as well as recommendations for the future and I know your leadership with Center McCain on the a 2005 act as well and I know what the law is and I’ve written about the the separation of powers works when Congress passes laws of the kind that you have in December of 05 President Bush issued a signing statement regarding the I need treatment Act of 2005 reserving the president’s right to disregard that the laws ban on torture disregard the Lost ban on torture if it interferes with his constitutional authorities as what was your involvement if any with this signing statement of secretary any issue that reach the president’s desk with the exception of a few cover matters would have crossed my desk weight of the president’s desk I wouldn’t have the ordinary course provided the policy advice for the legal advice but it would have crossed my desk so in that case the signing statement the drafts of it that process would have lost my desk at some point okay in a 2013 panel discussion as well you didn’t you did nothing about it though it crossed your desk and that was that weather was it there was debate as I think I’ve mentioned about that the council to the president miss Myers at the time was the ultimate advisor on that matter for the president and us would have been the one who primarily dealt with that with the president it was important as the job I had they are not to supplant the policy or legal advisers that was not my job my job was to make sure the president had the benefit of the views of Paul Stanley. Bizer’s one more bushy rug question on this in a 2000 panel discussion at NYU Law School regarding Bush Administration anti-terrorism policies you said the bush when quote right up to that legalized to defend the security of the United States and quote implying that bush policies did not cross the legal line do you mean to suggest that bush operations post 911 programs including the CIA torture program were legal suggesting there and try to provide you an explanation president Bush’s views I think he has said publicly was I’m trying to keep America safe he was going to do everything he could within the wall he relied on his lawyers to provide him the boundaries of what the wall is and then he would go up to that line as he thought effective as a matter of policy it was up to the lawyers therefore to make sure that they were giving sound advice and not and then having the backbone and this is something that you’re legislation reinforced lawyers need that backbone even in pressurized moments to say no and I talked about that many times one of the most important responsibilities of an executive branch lawyer in the passions of the moment where the pressures on where the president wants to do something perhaps is to going to the Oval Office and say no you shouldn’t do this and that’s something that I’ve written about talked about inexperienced in my time with President Bush and I put encouraged young lawyers to have that back bone in for to diseno that’s about the most important things thank you a quick change of subject you sat on a case where a trainer Dawn brancheau was killed while interacting with a killer whale during a live performance following her death the occupational safety and health administration found that SeaWorld had violated Works Force safety laws the majority agreed with the agency that SeaWorld had violated the law according to what I know you disagree in your descent you argue that the agency lack the authority to regulate employers to protect protect participants in sporting events or energy payment shows however the statue as an act it applies to each employer and it defined employer as anyone engaged in business affecting Commerce who has employees wear in the text to the law did Congress exempt employers of animal trainers the first point I want to make is that was not a case that involves potential compensation to the family that handle through the state court system or through insurance or through a settlement with the SeaWorld in the family to the case before us had nothing to do with compensation of the family that had to do with a separate regulation of SeaWorld the issue president I follow is a judge I follow president the president of the labor department as I read it was that the labor department under the statute would not regulate what it called the intrinsic qualities of a sports or entertainment show so lots of sports and entertainment shows have serious dangers whether it’s football or the balance beam in gymnastics for the high-wire ACT at the circus for the lion tamer show and the SeaWorld show was as I saw it of a piece under those with that precedent that said the labor department would not regulate for example whether baseball helmets had to have ear flaps or whether to prohibit the punt return or to make the balance beam have Nats and this seemed to be covered by that President as I saw it the labor department in the oral arguments tried to the sinks distinguish for example the dangers of football for dangers of the SeaWorld show and I did not as I explained in the opinion find that distinction persuasive but I did make clear two things Senator one is Congress could of course regulate the intrinsic Congress can make the decision to read intrinsic qualities of sports entertainment shows or the labor department could change its president and I made clear that of course State tort laws the NFL’s experience with a concussion issue State tort law always exist as way to ensure or help ensure safety in things like the SeaWorld show we believe they’re Essentia to enforcing are laws and safeguarding consumers Congress requires the president to have good cause to remove the heads of these agencies to insulate them from political interference you of objected to this limit on the president’s power and struck down for the 4 Cause requirement in a case involving the Consumer Financial Protection Bureau the DC circuit disagreed and turn your decision if the president can fire the heads of independent agencies for any reason what’s to prevent political interference in these independent agencies followed the Humphreys executor president of referred to it as in trench that is the precedent that allows independent agencies and protect them from at will firing the four calls restriction cell that as a general matter I have affirms the more I follow the president Humphreys executor the example you’re talking about the Congress established a new independent agency that did not follow the traditional model of independent agencies of having multiple members that’s all I thought it was a problematic there and I did not invalidate or did not say the agency should stop operating at the agency can continue performing it’s important functions on behalf of consumers but had to be restructured as a multi member agency or the president had to be able to remove the single head out will The Limited set of documents we’ve received indicates that you were heavily involved in the bush White House’s respond do Congressional investigations after the Enron Scandal is that accurate document request from Center lieberman’s committee and I was one of the lawyers that had to help gather documents from people within the White House and then had to negotiate with a document side of negotiate documents with Sarah Lieberman staff so you know that one of the greatest corporate scandals in American and I can tell you is a senator from California not only did many of my constituents lose everything financially when Enron collapse under the weight of its accounting fraud but the fraud and Market Malaysian contributed to an energy crisis in California White House emails show that you are asked to review a set of draft talking points for press secretary Ari Fleischer stressed the role of enron’s Market manipulation in the California energy crisis essentially the talking points said if there was any misconduct by Enron it was up to the Federal Energy Regulatory Commission to investigate and punish the company I’m not going to ask you if you remember the specific document but was that your view that ferc was the regulatory body that was supposed to stop the sort of misconduct I’m not recalling the specifics of that Center my role as a general matter was to help gather documents in response to Senator Lieberman committees requests as I recall and I know ferc would have a roll necessarily in something like that but I don’t know if I thought primary or I don’t think that was my area of expertise so I’m just not recalling it specifically senator thank you thank you thank you type of person so far it’s hard to believe how you conducted yourself some decency that so many of your friends tell us actually existed and I would tell your friends in foreign call accept described in their letters to this committee I wish I could say the same recovered in on social media but I can’t I’m deeply concerned about the theatrics was saying these last two days I’ve been on this committee for 42 years longer than any other person and the former chairman never have I seen the constant interruptions we witness at this hearing confirmation supposed to be for the American people to hear from the nominee actually it seems that some on the political left that decided to try to turn this hearing into a circus that I worry about the press that this is setting for future confirmation but that’s not the worst of the worst of it are the attacks against people who they aren’t even up for confirmation we just happen to be here in the room just support the nominee it’s bad enough that Supreme Court nominations of turn into all-out war against the nominee have we reached the point where anyone who supports or even sits behind a nominee must also be destroyed as our tribalism really reached that low to those who have been unfairly caught up in the mob mentality of the last 2 days I just want to say you’re right to be here supporting someone you believe in don’t let the fact that there are a lot of frankly sick people out there cause you to lose faith in our political process good decent people to step forward to contribute even when it’s ugly particularly what it’s ugly just now out of my questions let me ask you this if I did yesterday I’d like to ask you to keep your answers to my questions concise so we can get through as many of them as we can late last night one of my colleagues ask you a series of open-ended questions about any conversations you have had with anyone at a 300 50 person Law Firm above special counsel Bob mother or his investigation you said you did not remember having had any such conversations like all I did not clarify why my colleague was asking the questions did not allow you to complete your answers I want to give you a chance to respond if you’d like to don’t recall any conversations of that kind with anyone at that law firm I didn’t know every might work at that law firm but I don’t recall any conversations of that kind I haven’t had any inappropriate conversations about that investigation with anyone I’ve never given anyone any hints forecast previews Winks nothing about my view as a judge or how I would rule as a judge on that or anything related to that so thank you for the opportunity to to terrifying and reassure you on that and then you end up being around yesterday there’s something I have to come clean about I’m on the board of visitors Society is true for those who are not familiar with the Federalist Society generally holds the base and puts the other panels on legal issues covering it’s a very responsible organization the American Constitution society that much the same thing and I respect them except it focuses on liberal or Progressive lawyers where to buy Democratic calling on this committee they’ve been involved with a CSS with the ACs from keynoting the annual conference to being an honorary host committee chair to speaking on panels to writing blog entries for the organization I even heard a nasty rumor that one of them spoke of the Federalist Society event can you believe that you’ve already said that when it came to your nomination you spoke with the president the vice president and the just canceled on McCann not the Federalist Society so I don’t need to ask you about that my question for you is this what has your experience with the federal decided Society been there thank you the Federalist society as you note provides holds the Bates at law schools on both sides the typical program of a federal Society event at a wall school will have two speakers and a moderator that’s typical with the two speakers presenting different views on an issue it could be for example Fourth Amendment of privacy where you have someone who’s got different view on that don’t security-related Fourth Amendment issues Run Free Speech issues or all sorts of legal issues they try to have debates were both sides are presented the law school events that I’ve been due at the conventions don’t always have panel four or five with a moderator will have a spectrum of views represented on a different topic they’re very enriching and terms of your knowledge of the law and they’re also enriching I believe in turn stop providing different perspectives on the wall and they have they welcome people and actually would insist on having people from all different perspectives at the event so it is very beneficial to wall I think the programs they have at the law schools they’re very educational they provide some of the best debates that are held at the law schools I believe so I think the organization which itself does not Lobby and does not file amicus briefs or anything like that does it free valuable service at law schools in the legal Community as a whole for bringing together different views on important legal issues and I applaud them for their efforts to bring speakers to campus and provide legal debates on campus and in lawyers convention naturally I was very interested in that are showing the case was the meaning of the stored Communications act and whether a warrant for data stored overseas but accessible in the United States Falls within the ex confide I had introduced legislation known as the cloud act to resolve this issue foaming oral argument Congress pass the cloud act that’s moving the case before the court now the specific that issue in the Microsoft Ireland case has been resolved by my legislation but the case also raised a broader question but I like to ask you when the stored Communications Act was passed in 1986 no one imagine a world where data could be stored overseas but accessible instantaneously in the United States it was clear that they had covered the data stored in the United States it was less clear that extended the data stored abroad using new technologies that were not available in 1986 how do we interpret our laws in light of changing technology how do we determine whether the authors in an actor’s of legislation what event ended the legislation to cover new technologies and unforeseen situations so I think they are as elsewhere the job of the judges to focus on the words written in the passed by Congress sometimes Congress will write a statute where the words are very precise and it’s quite clear it covers only something that might be in existence at the time sometimes Congress will write brought her more capacious towards as does the Constitution at times that can apply to new technologies for example the fourth amendment of course in the Constitution applies to things that were I known as the founding including cars and and communication devices that were not known to the pounding so to what statutes it depends on how broadly ordinarily you you’ve written it and your question raises a broader point which is the issue privacy and Liberty on the one hand versus a security law enforcement on the other is an enormous issue going forward for the Congress in the first instance I believe and also for the federal courts including the Supreme Court going forward the carpenter case this past term is a good example that written by Chief Justice Roberts cuz I look ahead over the next 10 to 20 years that balance of 4th amendment Liberty and private Universal Security and law enforcement is an enormous issue there’s been today for some time now in Congress about whether our laws should should be should be updated to require a warrant for the content of the electronic communications regardless of how old those Communications are the electronic communications Privacy Act currently distinguishes between Communications that are less than 180 days olds and older than those that are more than 180 days old requiring a warrant for the former but not the letter can you speak wait till the importance of Warrant requirements of why they’re an important bulwark against the government overreach in the warrant requirement hell’s helps I’m sure as a general matter that the executive branch is not unilaterally mole to invade someone’s privacy is someone’s Liberty without judicial oversight that ensures that there is probable cause or whatever the standard might be in a statutory situation to get someone’s Rec information or otherwise they their Liberty or privacy set judicial oversight part of the checks and balances of the constitution in Congress is written that also and do several statutes as you know Senator I want to return email Senator Feinstein was asking you about you were asked for your comments on an iPad that was going to be published by group of pro-choice women in support of the Circuit Court nominee you said quote I am not sure that all legal Scholars refer to row as the settled law of the land at the Supreme Court level since Court can always overrun president on quote you then added quote they the point where is in the inferior courts unquote where you giving your opinion on row there or were you talking about what lost colors might say I was talking about what legal Scholars might say and I thought the op-ed should be accurate about what in describing Lil Scholars okay so we got that cleared up charged or acquitted conduct with regard to acquitted conduct in particular eye gravy motion that a judge can sentence a defendant to a long prison term for a crime that a jury acquitted the difenidol of flies in the face of the right to a jury trial you written that you believe quote it likely will take some combination of Congress and the sentencing commission to systematically change Federal sentencing to preclude use of an acquitted or uncharged conduct unquote why do you take issue with you put a contact at sentencing and why do you believe this is an issue that will likely require intervention by Congress to resolve in the opinions I’ve written on this I’ve written several say in essence the following Senator wanted criminal defendant for example it says charged with 1010 counts let’s suppose and Zack Whitted on 9 and convicted on one and then a criminal defendant is sentenced as if she had been convicted of all 10 cuz the judge just says well I think you know you did ask for that Y and under my discretion would she now have under the Supreme Court’s case wall for sentencing I’m just going to send you the same anyway dependents and the public the families of the defendants understandably say that seems unfair I thought the point of the jury trial was to determine whether I was guilty or not guilty on all those charges and I’m getting sent instead exactly as if I were guilty on all the charges and seems a violation of due process so I’ve written about the fairness and perceived fairness of the use of acquitted conducted sentencing judge Mallette on my cord and I both written about it several times and made clear our concern about the use of acquitted conduct and how it affects the sentencing system why I’ve said Congress might to look at it although I’ve also pointed out individual District judges can can look at it is because under the current system sensing judges have wide discretion and picking sense is so it’s hard for a appeals court to say that you’ve infringed her discretion given some of the case all the Supreme Court which grants that discretion but I don’t like the practice and I’ve made that clear in my opinion so I’m just repeating my opinions here because of the unfairness and perceive done okay this committee has been chasing that elusive deal on Criminal Justice Reform for quite some time now one particular focus of line in this area has been men’s Raya reform without adequate mens rea protections that is without the requirement that a person know his conduct was wrong or unlawful everyday citizens can be held criminally liable for conduct that no reasonable person would know what’s wrong my legislative efforts to bring Clarity to the men’s Raya requirements claim the effort is a ploy to get corporations and white-collar defendants off the hook but stronger men’s Raya requirements protect the liberty of all defendants in the car justice system the vast majority of them are not corporations or white collar defendants you’ve written about the importance of men’s Raya requirements including in cases involving unsympathetic defendants like an AR robber were convicted murderer why on your view or men’s Raya requirements so important men’s Raya requirements are important but because Center under the due process clause in the presidents of the Supreme Court this is not right to convince someone based on a fact they did not know it’s just an elemental point of due process just as Jackson describe this principle in his famous Morissette decision that he wrote it’s his Elementary is the he said it’s the school child’s I didn’t mean to I didn’t know and if it’s someone truly didn’t know a fact that they that’s relevant to their conviction to nonetheless can he is a good country to process I’ve seen cases where a mandatory minimum sentence was elevated from 10 years to 30 years 30 year mandatory minimum based on a fact that the defendant not know I just sent it in that case and then bank has joined by judge tatel who is an appointee of President Clinton to our court saying that I wrote a very lengthy descent about the history of men’s Raya and just how much of a equation of due process I thought had occurred in that case that was not a sympathetic defendant given what he had been convicted of but I thought it was a complete violation of due process and principles of men’s Raya that were long-stay from Morissette to give him a 30 year mandatory minimum for a fact he did not know I have also wrote joined an opinion and wrote a separate opinion reversing a murder conviction of someone where the jury instructions were unclear about the mental state of the of the murder was questioned of manslaughter vs. second-degree murder that would have had a huge difference in the defendant’s sentence and I an opinion saying this was not a especially sympathetic case giving the facts but the jury instructions were flawed on the issue of the mental state and at my exact line was I’m unwilling to sweep that under the rug and that how I felt about the back case there was a dissent in that case but I was in the majority reversing the murder conviction that case no matter who you are in my court if you if you have the right argument on the wall I’m going to ruin your fave men’s Raya is foundational to Due Process I’ve written that repeatedly and I share your concern about mens rea of Reform us are Hatch play swear allegiance to their church not their country necessarily I have Faithfully served this country for over 40 years number on the religious person that religion is also a big part of your life you went to Catholic School who your children go to Catholic school and you regularly attend church and serve at church supported the church supported soup kitchen I know that religious faith is a personal subject but I’d like to hear from you how you how your private waves affect your public decisions can you be divided in your face and still uphold the law Sarah my religious beliefs have no relevance to my judging I judge based on the Constitution and laws United States I take an oath to do that for 12 years I’ve lived up to that owes at the same time of course as you point out I am I am religious and I am Catholic when I grew up attending Catholic schools and the Constitution of the United States force all that religious people or people who are not religious are all equally American as I’ve said in one of my opinions you down pinion no matter what religion you are or no religion at all we’re all equally American and the Constitution of the United States also says in article 6 no religious test she’ll ever be required as a qualification to any office or public trust under the United States that was an important provision to have in the founding Constitution do ensure that there was not discrimination against people who had a religion or people you didn’t have a religion it’s the foundation of our country were all equally America number of letters that ask consent to be placed in the record as well as the emails that were Declassified of themselves at 3 this morning they replacing the record and I know I know there was claimed this morning the committee was following my president 99% of her documents for time at the White House and we do not have we have less than 10% of yours and there were 800 she documents does news committee confidential by the nonpartisan National Archives that was discussed with both the Democrats Republicans on the committee nobody objected to that let’s go to have we discussed the fact of are you working nominations in the bush White House you receive stolen material for my Republican says Stafford name Manny Miranda a digital Watergate he stoled 4670 computer files from six Democratic senators controversial judicial nominees and install 4607 a computer files in 2004 in 2006 who testified and number centuries both Republicans and Democrats asked you and you said you never received any you also testified that you knew nothing about the Scandal until this public and if it if you would suspected anything untoward you would have reported you also testified to hats that you never received any document even appear to have been drafted or prepared by Democratic staff Miranda asked to me privately off and your documents related to centers fine and Feinstein I also asked about ascendant you quote Intel with extraordinary details and specifics about I was going to ask a highly controversial nominee just Days Later something I never said publicly I also asked about you receiving a draft you testified you didn’t recall anything specific but you thought is the sharing information between staff was common so let me ask you this has anyone told you what it ain’t Democratic senators have been advised to do fire staff at this year I think there’s been a lot of there’s been a lot of discussion about what individual centers might be interested in and when I met into I really want to hear what you to say jajaja for protesters have to say please go ahead have you been invited even told what to do by our staff at this year right so when I individually with 62-65 Senators including almost every member of the committee a lot of the center’s lot of you in the meetings told me issues you are interested in your staff was probably talking to yourself told me what you were going to have why I try to give you a good heads-up and I appreciate the meeting but has anybody else told you this is what I used to have his ask him to ask at the hearing tomorrow damn I think this might be it a different kind of process cuz you all were very transparent when I met with you I’m looking around and saying here’s what I’m focused on and here’s what I’m going to ask you at the hearing said it’s turned out to you were telling accurately telling you your concerns and you’re saying as highly confidential one of these centres now I remember you all did talk about you she’s another words are no surprises. No surprises But there again that you know you gave me a basic concerns and issues you who said it might highly confidential but that is the material you receive from Annie Miranda for example on July 18th 2002 days before an extremely controversial hearing for the circuit nominee for mr. Miranda sent you an email with the subject line highly confidential form to the certified in Safford ask him not to attend the meeting that day on March 88 2003 Mr Miranda sent you several pages of talking points they were stolen verbatim stolen Talking Points review of arguments Democrats would make it on another controversial nominee Miguel Estrada the subject line of the email says not for distribution mean mr. Moran that’s your not to share the information this is Alvin as a 3 this morning made public so yesterday when I asked you about a specific if you remember receiving this bad email going to ask you this why would you ever be as to keep secret Democratic democratic I am looking at these Center and says for example it looks like it looks like that Biden staff is asking him not to attend the hearing I don’t know why that look how you received it I don’t know why that’s even confidential because it yesterday Center my understanding of this process is that the staff do talk with one another that they’re not camps with no communication and that was my experience when I worked in the White House and so this it looks like Biden staff is asking him not to attend the hearing would have been pretty standard kind of information that was not really you read this I would be amazed if somebody handed me a memo saying this is a confidential memo grassley’s staff is prepared for I know it would not read it I’d be on the phone immediately said they say I’m bringing something over that just arrived to me but take a look at it but you received on July 28th 2002 an email from Manny Miranda they said my staff distributed a confidential letter to democratic council’s not the Republicans I miss Miranda said I received that letter in the strictest confidence you were at as explicitly by mr. Miranda to take no action on the email without his his further instructions he never asked him how he obtained a letter sent check conference to me and then July 30th 2002 you received an email from Verizon saying the head on 100% info that I was competing a meeting about a conqueror and then further in August 13th 2002 email obviously taken from my internal emails was going to do any of this raised a red flag on your mind it did not send her because it all seems consistent with the usual kinds of discussions that happen and sometimes people do say things of here’s what my boss is thinking but don’t share it around on me I must have had you know so many conversations in the course of my life with like that we’re someone saying like that about something in other words trying to give you a heads up on something and that just seems standard Senate staff so nothing that the direct answer your question is for example Biden looks like Biden’s staff ask him not to turn the hearing that wouldn’t have raised any thing at all for me other than someone who’s not here subject line spying that is not overly subtle this staff repairs over 1,000 documents together with both you and mr. Miranda she says she has a mold for us and so forth none of this raise the red flag with you it did not send her again people have friends across the aisle do they talk this was my experience back then maybe it’s changed and would there was a lot of bipartisanship on the committee there’s a lot of bipartisanship among the staff there a lot of friendships and relationships where people would talk to oh I’ve got a friend on Senator Kennedy’s Ted Kennedy staff I have a friend on Center hatches staff where I have a friend on sooner Spectre staff that kind of conversation and information sharing with, so it did not ring the flags I was born at night but not last night and if I found if I had something that somebody sent we stolen this or this is how it don’t tell anybody we have this I needed red flag now we only have a fraction of your record and I do think that the chairman for Meto open is up at 3 this morning but as you know the president is true executive privilege first time we’ve had to face this up here on a nominee for me the Republicans Or democrats of 102000 pages of material hundred 2000 time in the White House nominations can you confirm for me today than that hundred 2000 pages there no emails Mr Miranda Mark highly confidential or do not share or take no action on this describing what he is found out the Democrats are thinking Center I I’m not involved in the documents process so I don’t know what’s in them I bet we don’t know what time either because we’ve never had so much up with her before we don’t know what’s in all the documents they’re still being gone through by The Archives because this is being rushed we don’t get a chance to see him that’s not fair to us and frankly it’s not fair to you you probably been told you I supposed to be confirmed so you don’t have to care but I care I care about them of the Springport I care about who’s on there I think you should care what’s in that just as we should care what’s in it even more documents it and I had time to discuss today impossible to reconcile with your regular being told that your testimony that you receive nothing stolen and not no reason to suspect anything was stolen when frankly as we now know Republicans have for many Miranda stole things and some of the things he stole went directly to you let me ask you you testified in 2004 that side from participating and I’m talking about you did not work in the nomination judge William Pryor I use a controversial Renee Conroe versus way the worst Abomination history of constitutional law he argued that the constitution right to same-sex activity like necrophilia bestiality pedophilia you said you didn’t work on his nomination personally but you didn’t participate in the prior working group did you not what we all worknet just so you know the process there’s something called the White House I think judicial selection committee and judge Gonzalez the council the president chair that committee that started immediately after President Bush came into listen 2001 and so we would need with Mamas and individual members of the staff would be assigned to different music I don’t believe so I would have been part of the general process where people came in interview I said Center Rand and we met every week for several years to go over nominees and we worked closely with your home state senators I had various States for just recorded Illinois I had California John Feinstein Senator boxer staff Maryland senators are beans and Sarah mikulski but then we would sit in sometimes on interviews of other people who came in and then we would meet and go over the memos then we could meet with the president we met every week with the president before September 11th after September 11th those meetings became less frequent you would recommend for the 11 circuits he has you’re not I can’t have no reason that I wouldn’t have recommended him because he was a highly qualified Attorney General of Alabama and and Center sessions of course knew him well and he was well-respected we have up here this is Brett at your request at your request I asked Matt to speak with prior about his interest to get you in a bind judge I’m asking them because it is so easy on these hearings to say I don’t remember does the case did you mention mr. Gonzalez 35-45 of the questions ahead of time and every one of them I said I don’t remember I don’t recall and then every question asked almost every question has by both Republicans and Democrats I don’t recall I don’t shortly after that I went to private practice but the I think it is so difficult when did you don’t remember the things done by somebody who I did both sides who created when the most egregious reaches a committee confidentiality and Manny Miranda stole material from here stole it decided to you and others at the White House you have no recollection of that obviously work all the emails I’ve seen the emails but your question your larger question was to that razor flag and I’ve answered that now when you in the White House was part of your job to coach President Bush’s judicial nominees how to answer Democratic Democrats questions about Rover what part of our job would have been to prepare nominees more generally and it was common for senators to ask that question then as it is now and so I assume that we would have been involved in going through mock sessions I know what I know we were involved in going through Mark sessions which is very standard for democratic one Republican senator from this committee and and other Republican Senators and I’m not saying that is I got you that you have every right to do that that you did how she should respond to that according to one of the emails and my last question do you agree that a plastic firearm free with a 3D printer so they will in the minds of our founding fathers that the 18th century would you create that could be a regulator fan without creating a second amendment questions I think there might be coming on that Saturday or so consist of judicial Independence principles I shouldn’t comment on a potential case like that so thank you for your answer ahead of time and I rotisserie that you did not see what I wrote thank you very much Miss Sharon from the LA Times editorial board intitle can the Supreme Court confirmation process server be repaired by Parts in letter from 23 of Judge Cavanaugh’s classmates at Yale a letter signed by hundreds of Yale students alumni on faculty letter from George Secretary of State Brian Kemp op-ed in the Clarion-Ledger by Mississippi Governor Phil Bryant so I’d ask if that bill out thank you judge of their several things I want to go over with you when our compliments in early and disregard that he worked with Senator Grassley to get what it previously committed confidential released to the public and so that’s the way it works around here you don’t always get what you want but you try to work with your colleagues and many times you said you can succeed from a Publix it’s got to work this way you just can’t do everything you want in a legislative body There are rules and it’s frustrating to be told no on something you’re passionate about but I’m often asked people wonder these hearings turning into a circus and I want to defend surfaces this hearing is neither entertaining are appropriate for young people now some of my colleagues so I respect greatly or trying to make a point I don’t know what that point is but I do know this if you want to be president which I can understand that it’s hard and what you do will be the example of other will follow back to the subject matter the Morrison case was that about separation of powers that was the separation of powers case k it was about Congressional statute and the authority of the executive branch and how they interacted is that correct that’s correct on a very specific statutory scheme that was on Preston had the Judiciary involve appointing the council and apparently Kagan and Scalia agreed agreed with scalia’s $0.02 she’s called it one of the greatest ever written and she’s added it gets better every year why don’t want to I have the same listen to Elena Kagan but I will here so cuz she’s a fine person the situation we have before us about mr. Mueller that’s not a separation of powers issue is it he’s different facts that mr. Mueller was appointed the Department of Justice regulations I don’t want to talk specifically about current events but I will just refer back to what I’ve written previously about special counsel I’m just asking you to read the paper do do you watch television the special counsel Statute in question doesn’t exist anymore doesn’t the independent counsel statute independent counsel does not exist anymore special counsel system I’ve written about is the ordinary way that outside and does it itch is that an executive branch function that is ordinarily appointed by the attorney general and is a member of what the executive branch so last time I checked that’s not a separation of powers issue that that traditionally is I’ve written has been an executive branch now the question is if someone’s appointed as special counsel Department of Justice regulations who has authority over implementing those regulations and overseeing those regulations all I can say is that that’s different legally and factually then the Morrison Scituate where you had a statue let’s talk a little bit about the law regarding the present Clinton V Jones tells us see if I’m correct that you can be president knighted states you can still be sued for kind before you were president and when you invoke executive privilege the quarter said no wait a minute you have to show up at a deposition because it happened before your present is that correct civil suit was the Clinton vs Jones case involving allegations that broad suit that involves activity before prison Clinton became president so it is pretty well understood through Supreme Court precedent that if you’re the present United States and you engaged in conduct that allowed you AC before you got to be present you can’t avoid your day in court and on the Civil side the Knicks and holding said what the Nixon holding said that in the context of the specific regulations there add a criminal trial subpoena to the president for information in that case the tapes could be enforced notwithstanding the executive privilege that was recognized in that case is rooted in Article 2 of The Constitution so that the law of the land as of this moment that United States versus Nixon is the law of the land okay now whether or not a president can be indicted while in office is been a discussion that’s going on for a very long time is that true in the league that’s correct the Department of Justice for the last 45 years has taken the consistent position through Republican and Democratic administrations that a sitting president may not be indicted while in office the most their opinion on that threatened by random who was head of President Clinton’s office of legal counsel in the late in 2000 he’s now a district judge appointed by President Obama on the district court in DC personality about whether or not would be wise to do this I’ve made my thoughts known for Congress to examine because in the wake of September 11th I thought one of the things Congress could look at is how to make the presidency more effective I just want my Democratic colleagues to remind you that when President Clinton was being investigated you took the position that he’s not a bubble all but in terms of in a sitting president would be better for the country to wait and the person who a code that the most or at least effectively I thought from his point of view was Joe Biden so there’s nothing new year folks want to see Democratic president adopt the positions that are arguing against now but that’s nothing new in politics I’m sure we do the same thing so this man judge Cavanaugh’s not doing anything wrong by talking about this issue the way he talks about it what we’re doing wrong is blending concept to justify Abode that’s going to be inevitable you don’t have to play these games to vote no just say you don’t agree with his philosophy you don’t think he’s qualified but the thing that I hate the most is to take Concepts and turning around upside down to make people believe there’s something wrong with you there’s nothing wrong with you the fault lies on our side most Americans after this hearing will have a dimmer view of the Senate right Lisa I don’t want anybody believe that you stole did you steal anything from anybody while you’re working at the White House counsel’s know did you know that anybody stole anything or did you encourage them to steal anything no did you use anything normally that was stolen now so you can talk about Miss Miranda and he deserves all the scorn you can heat on him but I don’t want the public to believe that you did anything wrong cuz I don’t believe you did so it’s okay to vote no but it’s not okay okay to take legal Concepts and flip them upside down and that like we’re doing something wrong on the Republican side when you had the exact same position when it was your turn you’ve heard of that case right I have had on it now there a lot of people like it lot of people don’t it’s an emotional debate in the country the found is there anything in the Constitution a right to abortion is anything written in the document of the Supreme Court has recognized the right to abortion since the 1973 Roe v Wade Hayes reaffirmed it many times but my question is did they find a phrase in the Constitution that said that the state cannot interfere with a woman’s right to choose until medical viability occurs is that in the constitution Supreme Court well I wanted those words I want to be very careful cuz this is a topic on which now if you’ll just follow me I’ll let you tell it but the point is will you tell me yes or no is there anything in the document itself talking about limiting the state’s ability to protect The Unborn before viability is there any phrase in the Constitution about abortion the Supreme Court has found to the Liberty Clause but you’re right that’s been the Liberty Clause refers to Liberty here’s the point what are the limits on this concept you had five six seven eight or nine judges what are the limits on the ability of the court to find upper number of rights that apply to particular situation what are the checks and balances of people in your business if you can find 5 people to agree with you to confirm a right with a the public likes it or not based on this concept of a penumbra of Rights what are the outer limits to this through the Supreme Court in the glucksburg case which is in the late 90s Justice Kagan talk about this at her hearing is the the task Supreme Court uses to find unenumerated rights under the Liberty Clause of the due process clause of the Fourteenth Amendment and that refers to rights rooted in the history and tradition of the comp of the country so as to prevent so let me ask you this is there any Rite rooted in the history and traditions of the country were legislative bodies could not enter intercede on behalf of The Unborn before medical viability is that part of our history and supreme court press has recognized the right to abortion on the history of our founding fathers I don’t remember that being part of American history so how did the court determined that it was the court applied the president that existed and found in 1973 that under the Liberty Club the cord is found that part of our history is for the legislative bodies not to have a say about protecting The Unborn until medical viability I don’t I haven’t with you agree with that or not I don’t think that’s part of our history so fill in the blank what are the limits of people in your business applying that concept to almost anything that you think 2B Liberty that is the concern that some of expressed about the concept of unenumerated rights that you got one word that has opened up the ability for five people to tell everybody elected in the country you can’t go there but this is an awful limits for an in Democratic process what do you agree with Roe v Wade or not just think what could happen down the road if 5 people determine the word Liberty means X the only real check and balance is a constitutional amendment to change the ruling do you agree with that Center I am not going to comment on potential Constitutional Amendments or okay how if we pass the statute tomorrow and Congress saying that the Congress can regulate abortions before medical liability wouldn’t that fly in the face of Roe v Wade so the Supreme Court has said that a woman has a constitutional rights statute does spring court press does 5 people have said Liberty means right to in the state has no interest are compelling answers before medical viability that we can pass all the laws we want it doesn’t matter cost the only way we can change that is a constitutional amendment process that requires two-thirds of the house 2/3 the Senate 3/4 state is that a pretty correct legal analysis when the Supreme Court has issued a constitutional ruling then you can play change it by constitutional minute what do you agree or not the reason some legal Scholars objected this concept is breathtakingly unlimited whatever five people believe at any given time in history in terms of the word Liberty they can rewrite our history and come up with a new history now I think the best way for democracies to make history is have the courts interpret the Constitution be a checking balance on us not take one word and create a concept that is breathtaking in terms of his application to restrict the legislative process agree with me or not and you would agree with me it was something you liked or you were supporting that got shut out are you opposed you couldn’t do so I hope that one day the court will sit down and think long and hard about the path of and not just about abortion whether or not it’s right for people in your business on any given day based on any given case or controversy to say that the word Liberty looking at the history of the country and the phone number of Rights means and it shuts out all of us have gone to The Ballot Box and going to the test of being elected all I ask is if you think about it also I want to ask you about nothing else to think about you said you were in the White House on 911 is that correct that is correct sir did you believe America was under attack yes boy was I do right do believe that if the terrorist could strike any city in the world and they had a like you get a one shot at the world based on your time in the White House do you bleed the pic in the mirror SimCity probably over any other City I’ll certainly seemed that New York and Washington DC where the to Target and they are who believe that America is not part of the battlefield sure was on that 11 the law if an American citizen goes to Afghanistan and takes up the fight against our forces and their captured in Afghanistan the current law as you can be held as an enemy combatant spider citizenship is that correct that the Honda Odyssey that’s what the Supreme Court said in the hominid decision with appropriate to process findings absolutely appropriate due process done future trying to recruit America to their cause Americans for their calls over the Internet trying to get Americans to take up Jihad yes the likelihood of an American citizen join their cause is real cuz it happened in the past the likelihood of it happening in the future I think is highly likely if an American citizen attacking the embassy kaabil can be held as an American citizen here’s the question can an American citizen collaborating with other terrorist or not American citizens be held as an enemy combatant for attacking the capital and if they can’t your incentivizing the enemy to find an American citizen cuz they have a privilege that no other terrorist would have so you said something was very compelling to me that to apply the law and you have to understand how to fix people write I hope you will understand that this war is not over that the war is coming back to our Shores it’s just a matter of time before they hit us then cuz we have to be right all the time and they have to be right one of the time one time I hope we don’t create a process where if you can come to America you get a special deal makes it harder to deal with you and find out what you know we treat you as a common criminal versus The Warrior you’ve become that’s just my parting thought to you and you’ll decide the way you think it’s best for the country is there anything you want to say about this process that would help us make it better cuz you’re going to get confirmed I worry about the people coming after you every time we have one of these hearings it gets worse and worse and worse you’ve sat there patiently for a couple of days my collar Sebastian tough questions sometimes unfair questions your time is about over there going to make it and you would probably be smart not to answer at all but I’m going to give you a chance the tell us what could we do better if anything so I’m just going to thank all the Senators on the committee and all the centers I met with who are not on the committee for their time and their care and as I said each Senators committed to public service public good my opinion and I appreciate all the time in the centers and I’m on the sunrise side of the mountain and I’m an optimist about the future Center bring up some information because I was wondering how long it would take the National Archives to get the material that we needed because you’ve heard several times that the that the archives the National Archives has 13 archivist who handled George W Bush’s presidential records they can only review about 1,000 pages per week but we could not have gotten these documents for 37 weeks if we didn’t get President Bush’s team to expedite the review process for the benefit of all members of the committee we received all the documents we would have received the archivist just is a faster and faster time will now take 15 minutes and resume at 12:22 tell me when you’re ready judge I am ready senators are but thanks for let me say at the outset this German thank you for presided over this committee has been a challenge for the last several days but you and I have been through battle so in the past both of us allies and his enemies and you’ve always shown fairness and I appreciate the furniture shown during the I also want to say a word about the protesters who’ve interrupted the hearing from time to time as I said at the outset this is one of the cost of democracy and it’s one which the Senate Judiciary Committee which is been constructed for the Chris of guarding our constitution should value even when it’s inconvenient I will I could go into a long rest here but I won’t in the interest of time but I don’t know who organized these protests or why they but thank goodness in the United States of America where we venerate free-speech these things can happen I want to thank the men and women of the Capitol Police and those who have been in charge of our security during this period of time as well I would like to also asked for two things to be entered in the record first is a record statements in opposition to the cabin on nomination from several groups with and secondly did Senator Grassley close the the earlier last session by with some comment I’ll have to read in its entirety understand but I think he said or someone said it would take 37 weeks the National Archives to go through does Cavanaugh’s record I’d like to introduce the record a letter from August 2nd 2018 from Gary Stern general counsel National Archives which concludes reinstatement by the end of October 2018 we would have completed the remaining 600,000 pages that we should be considering an unfortunately cannot so I’d ask consent to enter if that letter into the without objection thanks very much I remember when I got my results from my bar exam I thought to myself well that’ll be the last time I ever have to sit down and take an exam so at the end of this day this may be your last formal exam in terms of your legal career and I’m sure there’s a sense of expectation hopefulness some relief in that I want to thank your wife for being here and for bringing though beautiful daughters I hope someday they will understand what happened to their father in a few days here but thank you so much for being part of this hearing judge Aqib Agency on the Supreme Court a deciding vote on the cord both which may decide life-and-death issues on important cases it’s more than the question of release of documents it is really goes to the heart of where we are in America at this moment you have been nominated to be a Justice on the United States Supreme Court by President Donald Trump we have two take your nomination in the context of this moment in history we are in a moment at the moment where the president has shown contempt for the federal Judiciary unlike any President we can recall is shown check for the rule of law over and over again he has repeatedly ridiculed the Attorney General of the United States who he chose he has called for blatant partisanship in the prosecution of our laws is a president who is the subject of an active criminal investigation investigation which is apparently sought to obstruct repeatedly is a president who has been characterized in this hearing publicly on the record as an unindicted co-conspirator and a Blast 2 days during the course of this hearing there have been to incredible events the release of a book and an article in the New York Times which remind us again what a serious moment we face in the history of the United States and that’s why your nomination is different than any I can’t recall any that have ever been brought the forest in this context I can’t recall so many people across the United States following this is carefully craft Clarence Thomas at that time everybody in America was tuned in but it’s in the context of the Trump presidency that we ask you these questions in anticipation that you may space issues involving this President which no other Supreme Court has been asked to face and that is why I want to address your view of the power of this President the authority of this President because it’s important contemporary question which of course has application for behind his presidency you quoted me several times thank you yesterday regarding the independent counsel statute as our Republican colleagues find the remaining as judges are not legislators so to State the obvious my opposition or any of legislators opposition to reauthorize reauthorizing a statute is very different from a judge’s opinion on whether a statute is unconstitutional to get to the heart of the matter the reason why we continue to return to the Morrison versus Olson decision is because of its significance in light of the Trump presidency the reason we’re so interested in your view case was wrongly decided as little to do with the statute that was in question it has everything to do with your views on the power of the executive and what that would mean for this press in future presidents if you join the Supreme Court Justice scalia’s Morrison vs Olson Soul descent Embraces the so-called unitary executive Theory which and sweeping powers to the president United States Scalia said and I quote we should say here that the president constitutionally assigned duties include complete control over investigation and prosecution of violation of law and at the end exact inexorable command of Article 2 is clear and definite the executive power must be vested in the president of the United States in this age of President Donald Trump this expansive view of Presidential Power takes on added significance earlier this year the Central District bipartisan Bill to protect the independence of the special counsel Bob mower several Republic cited scalia’s dissent to justify their opposition to a bill protecting the special counsel with one even saying and I quote many of us think we are bound by scalia’s dissent the time I joke instead instead of dealing with Starry decisis we’re dealing with Scalia decisis given your views on Morrison vs Olson we are obviously worried that you will feel Bound by this decision by Antonin Scalia the president Trump decides to attempt to fire the special counsel Bob Mueller it doesn’t stop there you sided scalia’s to send in the case involving the Consumer Financial Protection Bureau where you got to that agency in the 20117 sky case you descended from a decision upholding the Affordable Care Act and made a breathtaking claim a presidential power which is been repeated over and over again and you said under the Constitution the president made trying to enforce a statute that regulates private individuals when the president deems the statute unconstitutional even if a court has held or would hold the statute constitutional your words first unitary executive theory was the basis for President Bush’s December 30th 2005 signing statement claiming the authority to override the McCain torture Amendment yesterday I asked you what comment you made on the signings is president Bush’s staff secretary Senator Feinstein asked a similar question this morning but you told me was I can’t recall what I said I do recall there was a good deal internal debate about that signing statement as you can imagine I do remember it would be controversial internally it’s hard to imagine you can’t remember that controversial issue giving our concerns about your views on executive power it’s important for you at this moment please to clarify for us the power of the presidency in this age of Donald Trump thank you first thank you for your comments. My wife and daughters my daughter’s will return news for a return engagement civil experience democracy once again in action and I appreciate that I’m Morrison versus Olson a couple things at the outset first case did not involve the special counsel system I have written repeatedly that the traditional special counsel system which we have now and it had historically is a distinct system appointed by the attorney General Morrison has nothing to do with that that deal with the old independent counsel statute as you said which is expired in 1999 under overwhelming consensus that that statute was inappropriate unrestrained unaccountable as you secondly Morrison Justice Scalia sent that does not affect the precedent of Humphreys executor Humphreys executor is the Supreme Court precedent that allows independent cease to exist those Independent Regulatory Agencies continue to exist of course they’re both on the independent agency side those are unaffected on the special counsel side that’s unaffected you to the cfpb gate cfpb case that my decision in that case would have allowed that agency to continue operating and performance important functions for American consumers the only correction would have been in the structure because it was a novel structure that was unlike every other independent agency that have been created previously as to the concept of prosecutorial discretion that’s referred to in the 2011 case that is a traditional concept process Tyrell discretion that’s recognized in the executive branch the limits of it or uncertain that’s risen in the immigration contacts with President Obama there was debates about what the limits are those are not finally determined that the basic concept of Frost for all the scratches all I was referring to there I’ve made clear in my writings that a court order that requires a president to do something or prohibits a president from doing something under the constitutional laws of the United States is the final word in our system or separation power system that’s Cooper vs Aaron that’s Marbury versus Madison that United States versus Richard Nixon important principle and finally I would say that the question of who controls the executive power within the executive branch your vertical question you have to present at the top you have independent agencies which this consistently president is distinct from the question of what’s the scope of the executive power Visa be Congress on that ladder question the scope of executive power Visa V Congress I’ve made clear in the context of National Security Youngstown framework context of administrative law all my cases questioning unilateral executive rewriting of the law in the criminal law where I reversed convictions that I am one Not Afraid at all through my record of 12 to invalidate executive power was violated because you’ve referred judged Youngstown case in the context of a war in a decision by a president that was immensely unpopular and the decision might have been popular I should say and the decisions Supreme Court which could have been very unpopular at that moment in history what I’m trying to ask you what is an historic context do you understand where we are as a nation now what books are being written about how democracy dies when fear of authoritarian Rule and expansion of the executive branch is rampant in this country when illustrations of at are found around the world why we are asking you over and over again give us some reassurance about your commitment to the Democratic institutions of this country and face in the face of a President Who seems prepared to cast them aside whether its voter suppression the role of the media case after case we hear this President willing to walk away from the rule of law in this country that’s the historical context which this is in not a particular case but a particular moment in history Sarah my 12-year record shows and my statements to the committee show and all my teaching and articles show show my commitment to the independence of the Judiciary as the crown jewel of our constitutional republic my sighting of Justice Kennedy for whom I worked he left us a legacy of Liberty but I also a legacy of adherence to the rule of law in the United States of America no one’s Above the Law in the United States that’s a foundational principles that I’ve talked about coming from Federalist 69 coming from write the structure of the Constitution we’re all equal before the law in the United States America and I’ve made clear my deep faith in the Judiciary the Judiciary has been the final guarantor of the rule of law as I said in my opening the Supreme Court as the last line of defense to the separation of powers and for the rights and Liberties guaranteed by the Constitution laws the United States you see that’s why the unitary theory of the executive is so worrisome what you have said is what I want to hear from Aqualand very important branch of our government but what you have said in relation to Morrison suggests the president has the last word I have not said that Senator and I’ll reiterate some I said I said a minute ago coming from Cooper versus Aaron coming from Marbury when a court order requires a president to do something or prohibits a president from doing something under the Constitutional law how’s the United States constitutional system that is the final word let me ask you one last time the question you know I’d ask about your testimony in 2006 I’m just struggling with the fact that when I ask you about this issue of detention interrogation and torture you gave such a simple declarative answer to me and said that I was uninvolved and I’m not involved in the questions about the rules governing Detention of combatants we have found at least three specific examples where you were three your discussions about jacksepticeye also for detainees your involvement in the Honda and Padilla cases and your involvement with President Bush’s signing statement on the McCain torture Amendment Judge Kevin all you say that words matter you claim to be at xtralis when you enter other people’s words but you don’t want to be held accountable for the plain meaning of your own words why is it so difficult for you to acknowledge your responsibility response to the question and acknowledge that at least your answer what’s misleading if not wrong you had a concern at the time of the 2006 hearing which was understandable whether I’ve been involved in crafting the detention policies interrogation policies that were so controversial that the legal memos have been written in the Department of Justice that were very controversial as you know and it’s the committee knew then to judicial nominees to the court of appeals had been involved in working on some of the memos related to that program Center Feinstein led the intelligence committee investigation of that matter produced a massive report large unclassified report and apparently I’ve even larger classified report justice department office of professional responsibility produced a long report about all the lawyers who I was not involved in crafting those balls being involved in the three specific areas involving detention interrogation which I just ready do you say that you have no nothing to do with the Hamden and Padilla cases but you weren’t involved in the conversation about access to counsel for detainees that you weren’t involved in President Bush’s decision on a signing statement on the McCain torture remember you saying that none of those things occurred I understood your question in and I still understand it now and I understood my answer then and I still understand it now to be about those legal memos I was not read into that program I was not involved my name does not appear in sin Feinstein’s report which is not the question I asked do you denied the three specific instances where you were involved in questions involving detention and interrogation that was the question that I saw that you asked at the time hearing and my answer was then and is now as Senator Feinstein’s report shows and as the professional responsibility report shows I was not read into that program that it’s not okay if she came to my rescue and sworn testimony from you now that you were involved in these three things and all of them relate to detention and interrogation which you gave me your surance you weren’t involved in awesome sex and my testimony then was accurate and was the truth why you’re asking me now as for example on the on the signing statement as we discussed in your office I made clear that of course his staff secretary everything that went to the president for a three-year period with a few covert exceptions would have crossed my desk on the way from the council’s office or the policy adviser or wherever it was going and would have made its way to the president’s desk and that includes that signing statements but let me just close I don’t think the staff secretary to the United States president is a file clerk what you have explained to us over and over again this was a formative moment in your public career you given constitutional issue advice as well as making substitute changes and drafts that we’re headed for the president’s desk and one of them involve John McCain’s torture Amendment and that to me is involved directly on detention and a irrigation and I think unfortunately your answer does not reflect that if you want to speak to that then we’ll go to Senate early I just want to close by thanking Center Durbin and in response to his questions about the Judiciary all the Judiciary he gave me a book when we met biography of Frank Johnson and at Friday night after a lot of Senate meetings in a lot of practice sessions I went home read the whole thing and I appreciate it it’s a good model of judicial Independence a great story about someone who was a judge in the south in the Civil Right There who stood firm for the rule of law and sell a good model and I think Senator Durbin forgive me the book but I thank you I just say one word thank a discount on that night obviously the Nationals weren’t playing yes I want to follow up a little bit on this last line of questioning from Senator Durbin we share many views in common that it is one area and indefinite detention where he and I are are concerned about the government not over-reaching only as I look at this I think this Cuts in your favor not against tell me if I if I’m missing something and it in the first place what you were asked about was whether or not you were involved in crafting the policies that would govern Detention of enemy combatants is that right that’s cool and that was a classified program classified as a very high-level presumably compartmentalize sucks that you would have had to have been read into that program in order to participate in that process is that right I believe that’s correct red and I wasn’t necessarily using the formal sense of that but what I meant is I was not part of that program okay involved in the development of that policy where you were not that’s correct and you are not that’s correct and Tim Flanagan who was I believe it’s the time to Whitehouse counsel he was the deputy County Deputy Council has confirmed that you were not involved in that we have your word and the word of a then-deputy White House counsel there is a separate issue so I guess one could argue I related issue but I I don’t know if it’s worth it but what do you say something out right into it I don’t know whether people understand what that means I assumed that won’t be counted against me there okay speak more quickly than when we refer to it cleared to discuss certain classified matters were not brought into the development of this policy that’s correct secondly there was a separate evolving a meeting where you were asked for your opinion about how Justice Kennedy might react to certain legal arguments that people in the administration were pushing is that right that’s correct you answer that question I said that indefinite Detention of an American citizen without access to a lawyer which at the time was the what was happening in that particular case I would never fly with Justice Kennedy and I happen to agree with you on that and it seems like a fairly unremarkable proposition to me I don’t think anyone disputes that that are had problems with it but that wouldn’t fly with Justice Kennedy and I therefore have difficulty seeing how this comes against you as someone who believes in civil liberties and who shares many of the same concerns have been expressed by many of my Democratic colleagues I think the advice you offer here was accurate I think it was good advice it certainly is not inconsistent with the take me to provided which was that you were not involved in the development of the policy governing the program sometimes his lawyers were called upon to offer litigation strategy sometimes were called upon to handle litigation other times as lawyers particular in the we might be called upon to develop a policy here you were involved in either handling the litigation directly Norm developing the policy you went to a meeting somebody ask that question you gave him your answer that that’s correct and it was about something entirely separate from policy where the legal it was about a litigating position dealt is sort of in the same universe but not with that policy therefore have the right thing and that you answered this question in any way other than with the truth the whole truth and nothing but the truth let me turn next while we’re talking about calling with whom I often agree and with whom I often work across the aisle Senator Booker is it is a good friend of mine and he’s a colleague he and I work together on a lot of issues he race an issue last night that I wanted to touch on with you erase an issue related to emails I was concerned at the time that you didn’t have the e-mails in front of you and I think that’s very important for any witness in any proceeding to be given access to the documents documents that in this case we’re prepared some 18 years ago he was a lawyer have no doubt been involved in the creation of many hundreds of thousands possibly millions of documents ask you to recall from memory something you wrote 18 years ago is going to be difficult at any moment these these emails deal with an issue involving some questions surrounding a Supreme Court case called adarand Constructors versus Minetta so let’s refer to document document to 89596 as I understand it you were being asked in this instance to provide some advice on what might happen particular argument were presented to the Supreme Court on the merits you looked at some Department of Transportation Contracting regulations and as I understand it correct me if I’m wrong with a correctly the government was considering making a series of arguments before The Supreme Court and you did what a good lawyer should do when advancing an argument to the court you counted to five find five Supreme Court Justices who believed would not accept the government’s argument in defense of those. Regulations is that right that’s correct under the precedent that existed at the time the cross and press and I think was the most impressive and yet at the time the Supreme Court of the United States had already granted review of the case granted certiorari the Supreme Court unlike most appellate court is in charge with very very few exceptions today it’s decide which of a 10,000 or so cases that want to go to the Supreme Court each year will in fact be reviewed by the court the court had already granted certiorari granted in review and in that case is emails I read your argument to say okay number one you cannot count to five here because I’m identifying I Brett Kavanaugh identified that are grave doubts as to whether Justice chief justice rehnquist Kaylee or Justice O’Connor can Embrace these arguments in defense of these Department of Transportation regulations and of course of action that would allow the government to make its case but to make it case in a way that would allow the court to decide that perhaps it shouldn’t have granted reviewing the case that my correct that’s correct and what is that called when the Court decides that it shouldn’t have granted a case dismissing is improvidently granted or other colloquial known as big as a dick so you came up with a strategy for the purpose of encouraging the core to dig a case that hit had previously granted because you believed the government was going to lose and the regulations in issue we’re going to be invalidated and you didn’t want the government to have to endure that did they accept your arm Supreme Court did yes so that the administration office and wrote the argument that you as you would prescribe does prompting a dick and as a result the regulations Stewart isn’t that right that’s so Center where they otherwise would have fallen hear again I have a hard time seeing this as anything other than something that helps you that helps you not just with Republicans but that helps you with Democrats you saw a problem with an argument the government you identified that problem you offered to remedy that remedy was embraced by the solicitor General’s office and the Department of Justice and the court did exactly as you wanted to do it as a result the regulation the regulations that Senator Booker it is is a concerned about was wanting to make sure it was not under attack unfairly wasn’t that preserved I have a hard time seeing wife that shouldn’t make him want to vote more for you back but for you I’ll have that conversation with him later okay to last night’s round of questions 20th ask you whether you would ever spoken to anyone at the law firm of kasowitz Benson Torres about the Mueller investigation she even employed you to be sure about your answer which I suppose is good advice any contacts but it sounds somewhat ominous the issue with this question is that castle what’s if I understand it correctly is a law firm that includes 350 lawyer in 9 US cities and I am guessing not even mr. kasowitz himself who started the firm can’t even name every single attorney could you name every that works at that firm know as you sit here can you rule out the possibility that you may have close friends former law clerks former law school classmates who might work or might have work at that promotion point in a few people I’m aware of just from the public I gather Center Lieberman works at the firm that I did not know that last night that is correct I didn’t either but I found that out last night can you name the nine cities where this from has offices so like my calls question maybe a very direct question but it’s something that I think the in this circumstance is unfair if you can’t identify the people that she has in mind or you don’t even know let me ask you something that that may get it her underline concerned but in a way that I think is fair because I think each of my colleagues when they have concerns and they have questions they deserve to be able to have their concerns that I think is fair have you made any promises or guarantees to anyone about how you would vote on any case that might come before you if you’re confronted the Supreme Court of the United States now have you had any in proper conversation with anyone about the Mueller investigation now stuck a little bit about executive power is the president United States absolutely immune from any and all legal action weather criminal Sarah the foundation of our constitution was that as Hamilton explained in Federalist 69 the presidency would not be a monarchy and its best fight all the ways that under the car tution the president is not above the law no one is above the law in the United States of America the president is subject to all the Supreme Court present president in cases such as Clinton Jones United States vs Richard Nixon establishes those principles cases like Youngstown stylish it in the official capacity and Marbury versus Madison an official capacity so the president has Authority Under the Constitution the executive power under the Constitution the president has established by the framers of the Constitution is not above the law no one is above the law in the United States of America as a practical matter who as a practical matter traditionally is I’ve written about in The Georgetown Law Journal article and written about elsewhere when there is allegation of wrongdoing by someone in the executive branch as to whom there might be a conflict of interest if the ordinary justice department process took place there is been traditionally the appointment by the Attorney General special counsel that’s gone back 400 years or so of that kind of outside counsel appointed of course we saw that in Watergate but we seen it lots of other times we’re special councils have been appointed for protest your matters where there was otherwise a conflict of interest or perceived conflict of interest of some kind was wrong way decided your view just to be clear is that Morrison applies only in a special context no longer relevant here is that right that’s correct what context is that that’s the context of the old independent Council statute which is distinct from the special counsel system the old independent counsel statute had a lot of features onto it and that statute was viewed by the Congress when we considered it in 1999 is being restrained unaccountable in permissible and the statue was not renewed in the Morrison case was this a one-off cases I see it about a one-off statute that no longer exist that’s why I also have talked about either the vestigial remain so once existing but no longer it’s a dinosaur this is really limited to Independent agencies right that’s right the governing precedent on Independent agency so thank the Federal Energy Regulatory Commission or the Federal Communications Commission of the Securities and Exchange Commission whole range of agencies governed by Humphreys executor of the 1935 president the Supreme Court which establishes that those are permissible there ordinarily traditionally been multi-member bodies and that was the problem I thought in the consumer Financial Protection Bureau case that it was only a single director independent agency but I would have the remedy would have still allow that agency to continue operating and Performing its consumer functions and protecting consumers from improper a behavior what’s the biggest single difference between the independent counsel statute which is now a dinosaur in and the special counsel regulations which are still in effect host of differences the appointment mechanism was different the removal mechanism was different the jurisdictional mechanism was different the how justice department policies applied with different there are so many different features of that old independent counsel statute that combine to convince Congress that that statute was the mistake worse than a mistake really and also showed I think why the statute was inconsistent with our constitutional traditions and the reason for that is because when you create an entity within the federal government within the executive branch that is not a can of anyone it sounds appetizing it sounds appealing to some at the outset to say where we’re insulating it from from political forces but what that really means is if it’s not accountable to anyone who was intern elected wasn’t that really the problem just ask Alia was pointing out in Morrison that that is what he pointed out it’s what Senator Durbin and many others on this committee and elsewhere pointed out after the experience with the statute for some gears and then seeing how it operated in practice I think there was overwhelming bipartisan agreement the statue did not operate it in a good way and that the flaws in the Statue the statute operation can’t stand from some of these features of its design that you just discuss which distinguished it from the traditional special counsel system that we had had and then starting in 1999 have had since 1999 to the present dealing with the Watergate special counsel or an independent can’t say it was a special the traditional special counsel of the kind we have had historically in the kind that we now have and have had since 1999 on the traditional special counsel system so he was appointed by regulation not by Statute and Nixon fired him and filed fired Archibald Cox and we all know how that turned out it seems to me that this remains and effective tool it it’s not as though the absence of the independent counsel statute renders the president completely immune because that’s simply isn’t the case you’ve never taken a position on on the immunity question on the question of whether the president is immune from prosecution technically accurate the questions deferral not immunity to the constitutionality of indicting a sitting president I’ve never taken a position on that the justice department for 45 years has taken the position that is sitting president may not constant may not be indicted while in office and that’s the Justice Department’s longstanding position under presidents of both parties but I have not taken a position on the constitutionality of that and practitioners of every idiot logical stripe that I know of that’s where the dispute is not whether there is absolute immunity so much as the timing of her it’s all about the timing it’s not an immunity question Rec Center there people on both ends of the spectrum who take different positions on that let me before I give the schedule break for lunch I’ve had another request for documents so I’d like to give you an update on that after to deadlines that only Senator Klobuchar honored my staff stayed up all night pushing the Department of Justice and former president to make public every confidential committee confidential document the minority as requested including a request after midnight Senator Leahy made a request today and we have pushed the department Justice and the former Pres Shawano this request they have agreed and will be producing the document simile and so like with Justice Gorsuch confirmation the process that I set up works when it’s followed I will now take 30 minute lunch break I have a question about that too I couldn’t hear what everything you said so I just want to clarify it’s my understanding that every document requested by any Senator that had previously been dead it is committee confidential has now been vetted and made available to that Senator or will be shortly what’s an early as for today sorry I ain’t getting him dinner I’m just going to make the point so there is nothing that a Senators requested that has not been made available to them and then been properly vetted with the Department Justice and now is available to the public I think I’m the leadoff batter when we return I’m told that we have a vote that is scheduled to begin at 1:45 yeah they often don’t forget exactly 1:45 could you please build in time so that may vote don’t go yet we’re going to accommodate you want from this respect so we’re going to take a 30 minute lunch break it might be longer than that so be alert judge there are two votes but I’m home you will vote first come back do your question and go back and vote on the second one and I should probably come back with you unless I get some other Republican to come back and I’ll do the same thing and then we’ll proceed that way through the 2 volts adjourned the committee will come to order Senator Whitehouse welcome back Judge Kevin on let me know when you’re good I’m ready thank you thank you just have no journalists go to jail to protect sources unless and until the source releases the journalist from their obligation of confidentiality will you now release from that obligation any journalist that you spoke with during and about the star investigation I’m not sure I’m understanding the question there were journalist you spoke with Jerry and about the star investigation they’re not disclosing what you spoke with them about because you are an undisclosed Source if you don’t worry that’s over say whatever happened happened then they are free to that obligation and we can find out about what you said to the journalist during about the start investigation will you do that spoke to her orders at that time at the direction and authorization I know that’s not a question if you hadn’t done that I wouldn’t be asking this you don’t need to tell me that the question is will you release those reporters from whatever source confidentiality protection they feel you are owed it’s up to you to do that I spoke to reporters at the direction authorization of judge or just decided the exact same words that you answered me forehand when you’re relieved relevant to the answer the question if I can continue what I’d really like to get as an answer the actual question I asked rather than a disquisition in the general topic area that I ask this is very simple thing you are there will or will not or if you wish this is your welcome to say look at like to take that under advisement I’ll get back to you after some reflection and consultation but our situation right now is that reporters information about what you told them during the star Clinton investigation that they are unwilling to divulge now because you were a confidential Source can you release them from that by simply saying you’re publicly look yeah I talked to say what I said it’s not a problem I don’t need confidentiality any longer right center and if I could just get 30 seconds on this that’s okay cuz 30 responsive seconds I’m all for that okay spoke to reporters at the direction authorization of Judge star and therefore judge star would be the one who would be part of that process I was not acting on my own so no that is not the way the reporters look at it they look at it as you are the source you are the one to whom they owe the obligation of confidentiality stars name has not come up but I was intern acting as part of that office therefore I guess the and it’s your answer your question though because I can’t do that or don’t think I should do that as a matter of appropriateness given that I was working for someone else who is running the office I thought the courts on the rack I’m going to do it let’s move on you have said today you’ve never taken a position on the constitutionality of indictment and dating the president let me ask you what has there ever been any statutory law on presidential immunity from an indictment or from due process of law is Ben justice department the more protected the president against indictment or due process of law has been justice department wall but not I don’t believe there’s been statutory law department is not a lawmaking body is it oh I think it does turn long compasses regulations it’s so yeah directive to the Department’s own employees correct the olc opinion of what you’re talking about that’s encompassed as I think about it within the concept of law well I’m going to go to the general concept of wall perhaps but there is no law that Congress has ever passed that protects a president from other indictment or due process of law correct Congress has never passed something to justice department has an opinion about it I understand that it which is binding on the justice department so if as a matter of law a sitting president cannot be indicted that must be constitutional law since there is no statutory law as a proposition of logic is that knocked that is not correct as I see it because if the justice department has law that binds the justice department that’s another source of law as well okay so let’s go back to Georgetown Law Journal 1998 and a conference you attended and you spoke at it and the panel that you were on with ask the question who on the panel believes as a matter of law that a sitting president cannot be indicted during the term of his office that’s you and your hand shut up and I think you probably seen the film clip of that cuz it’s been posted already did you mean as a matter of law olc guidance when you said that and I know that right before the passage you’re reading I said there’s a lurking constitutional question the fact that I said that suggest that I did not have a position on the Constitutional you shot your hand up when you said when the question as a matter of law is sitting president cannot be indicted came up and it seems to me there really only two kinds if you’re really stretching the envelope here one is laws to Congress passes and the other is laws that are found in the Constitution an internal policy directive within the Department of Justice I think it’s a real to call that law but I appreciate that but it has been a long-standing justice department position so yes and right before and is that what you meant when you put your hand up you know that was 20 years ago I don’t know but I do know right before I said that that I said that’s why it’s important because you’ve been telling us I’ve never taken a position to say this with a constitutional principle I’ve never taken a position on the constitution on that question I did not take a position on constitutionality. I’ve never taken a position on personality of indictment those are all things you said during the course of this hearing and it looks to me like that’s a bit of a conversion right before that those Center to be fair to me I I did say there’s a working constitutional question which implies yeah and they are not and then you were asked to answer that question by putting your hand up and you put your hand up saying I The Quiet Ones to meet you answer your question by putting that hand up the way you did but the question wasn’t the Constitution the question was law and there was justice department position at Dental that’s what I’m saying you’re saying is you’re saying that what you meant was the olc policy position when you answer the question about law what I said I don’t know what I was thinking it a panel 20 years ago but I do know having looked at it that the question was about law that the justice department position has been consistent for 45 years as a matter of constitutional law right the justice department position reflect a view of constitutional law but it’s an interpretation binding on everyone in the Justice Department as I understand it and because their employees of the Department of Justice in the subway that you can’t steal the computer or you can’t you know bring your office whatever other roles there might be internal regulations or still still off okay long as it’s your position that that was what you meant by matter of like I said I don’t know what I said what I look at it now that’s what I that’s what I think the let’s go onto recusal and there’s a case of someone on point on all of this Virginia and as you’ll recall it was a civil case knife supreme court because there was an objection that a judge should not sit basically the name OU Dex problem should not sit in it cause so to speak and the problem was that the one of the litigants could receive three the judge should receive $3000000 in political support from one of the litigants let the fact pattern correct I believe that’s correct that judge had weather that donor that party had a significant and disproportionate in flu spell influence right and placing the judge on the case correct and the he just decided that the constitution requires what year was all if the Constitution requires recusal of a judge who was the beneficiary of $3000000 the political support to help him get into office wasn’t it follow per force that the person who actually appointed the judge would be in a similar or stronger position of significant and disproportionate influence Sarah that question in the caperton case I understand was because of the amount of money the financial interest which is a whole separate brand direct which would have a significant influence on the judge becoming a judge right that’s what the connection was the spending of money by the party help make the judge the judge in this case if a criminal matter involving president Trump came before you he wouldn’t have just spent $3000000 to make you a judge in a flat-out made you the judge 100% faneto right Saturday the question of recusal is something that is governed by President governed by rules one of the under preciate it aspect of recusal is whenever I’ve had a significant question of recusal as a judge on the DC circuit I’ve consulted with colleagues and so too they consulted with me when they’ve had their own question so that’s part of the process another word is that isn’t actually the 100% possibility for direct appointment more significant in terms of influence and simply making a big political contribution to a judge 100% responsibility appointed. we’ll just on the I don’t mean to quivel but on the premise your question the the Senate obviously as it’s a shared responsibility the president in the Senate participate in the Supreme Court confirmation process appointment process you were right there yesterday in our discussion that it was the present United States who appointed you and this is about this is about how you get to the seat and you got appointed by the president would that not pertain as a significant influence what possible greater influence could there be on who is in the seat that you’re nominated to then the nomination of the president to that seat so two points if I first I said already I don’t believe it appropriate in this context to make decisions and recusal is a decision on a case and so I don’t think it’s appropriate about appropriate that let me move on to something else because let me ask you about the question of presidential should we stay conflicts with prosecutors when you were in the star prosecution effort you were exposed to this contest with the Clinton White House and you describe the Clinton White House as running a and I’m quoting you here presidential e approved smear campaign was one phrase you used a disgraceful effort undermine the rule of law was another phrase you used an episode that will forever stand as a dark chapter in American presidential history that was about something different and you presidential approved smear campaign start with what the topic was you’ve said in a later memo that the president has tried to disgrace Starr and his office with a sustained propaganda campaign that would make Nixon blah and he should be forced to account for that have your views of presidential interference or smearing of independent or special counsel change since you made those statements those comments were in a memo written as I recall where you actually to Memos that I’m remembering written late at night after emotional meeting in the office dashed off and some of the language in that is I think I told you told some of the sentence in individual meetings was was heated and I understand that but that’s that’s that was my memo with the time I don’t I don’t I don’t think I think I’ve been clear I don’t want to talk about current events because I don’t think sitting jet I’m sitting judge as well as a nominee I don’t think I should talk about current events and just the guy the guy who was outraged at being there receiving out of a smear campaign to that guy still exist or is he long gone that’s that’s what I wrote at the time how I felt one night after a meeting we have had in August of 1998 I believe it’s least of my mom okay last topic cuz my time is getting short here the hypothetical problem that I have has to do with an appellate court which makes a finding of fact asserts a proposition of fact to be true and a pain that proposition hangs the decision that reaches and the question is what happens when that proposition of fact actually in reality you reference the real world so often actually in reality turned out not to be true the obligation of an appellate court if it is hung a decision on a proposition of fact and then the proposition of fact turns out not to be true does it have any obligation to go back and try to clean up that discrepancy to clean up that mess thinkcentre it’s probably hard to answer that question the abstract because but if I give you the specifics and you’ll say you can’t answer that because that would be talking about a case so I’m kind of in a quandary here with balcony view a couple thoughts which are that I think that would be wrapped up in the question of the precedent and Starry decisis and one of the things you could look at one of the factors you could look at how wrong with the decision and if it’s based on a erroneous factual premise that is clearly one of the factors you would you would do it look at in weather it couldn’t risk of History sometimes I have been cases for their mistakes of history and decisions mistakes of fact so quickly what’s the two examples that come readily to mind when is Shelby County in which the court said and looking at whether there was still have any kind of institutional racism in the preclearance states that they needed to worry about nope that quote country has changed and current conditions to rephrase are different first where do you suppose the five justices who made that decision got expertise in Vestige Allstate races to make that determination at all so I can’t comment on the decision other than to say it’s a precedent I understand the point you’re making about the could you do know that since then both North Carolina was found do it targeted minority votes with quote surgical Precision looks pretty rough raised and Texas got after it so frequently that a federal court finally said look we think there is a penchant for discrimination here so if you got the five judges saying that it’s over in the states and then it turns out it really isn’t over that there’s actually still surgical Precision targeting of minority voters and that there is a penchant for discrimination in the Texas state government that want to be something that might cause some reconsideration of the she’ll be holding fondant so three things on that I think Center one I think the case then did not strike down clearance as opposed to saying the formula needed the example because I think it’s an important one and I’ve got what is Citizens United took on the proposition that the unlimited spending that authorized by people capable of unlimited spending would be both transparent and independent correct the court upheld the disclosure requirements in that cases if that’s the question I’m not sure actually said more than that it said that it’s the transparency Independence of the spending that authorized yes that worthy Guardians against corruption by contributions to parties are candidates correct so the First Amendment ends were efforts to corrupt begin correct you’re the First Amendment right to corrupt your government the Supreme Court has relied on corruption in the appearance of corruption as part of the test and it’s you know big money corrupts and absolute money corrupts absolutely they said no because there’s going to be Independence and transparency in fact if I remember correctly they say have it in front of the separation between candidates and independent expenditures negates the possibility of corruption so if they’re wrong actually about this pending being transparent and we know that they are from what we’ve seen since then and if they’re wrong factually about the independence of this spending and we know that they are from actual events that have happened since then that’s a pretty hard blow against the logic of citizens united does it not so citizens united as you know the president of the Supreme Court so entitled to respect as a matter of star decisis but as you as you know and I would just reiterate if someone wants to challenge that decision they one of the things that anyone could raise about any cases that it’s based on a mistake and premise or mistake and factual premises and that’s always the kind of thing that courts are open to my time is expired I think the chairman for the Indulgence of the extra minute a couple of things first I would just know that I believe Justice Breyer and Ginsburg sat on the Supreme Court during Clinton B Jones and three out of four President Nixon’s appointees what were on the other Supreme Court that heard us V Nixon and judge Cavanaugh I have my colleague and friend Center Whitehouse attempted to imply you would resolve the Constitutional question of whether sitting president can be indicted isn’t it true that in a contemporary contemporaneously review article you are third you explicitly stated this is your these are your words whether the Constitution allows indictment of the sitting president of a sitting president that is what I said in the contemporaneous Georgetown Law Journal article said that as well for the record before I transition of Senator Cruz will indulge may I reserve 13 my time last night and I was wondering if you met you were the two instances where you weren’t answer the question I didn’t know if you wanted to make any clarifying comments on disclosing sources relative to the discussion round judge star and it one point you were saying that Senator Whitehouse said something that you said that’s about something different I don’t know if you remember what that was but if you want to clarify before we transition to Senator Cruz I’ll give you a minute to do so I think I’ll just leave the record as it stands third comment that he references about something a different aspect of that investigation okay to impugn the residence of North Carolina and the residents of Texas as having a pension for bigotry and I appreciate the compassion from the senator from Rhode Island I will point out I’ll let you rise to the fair have your own state but I will point out in the state of Texas that we had just a few years back three Statewide elected African-American officials all-republican I might know which I believe it’s the time was the most of any state in the Union and I think it’s the case that Rhode Island has none well and I would notice well for the record I apologize to my colleague if he takes any I’m rich about my reference to the general residence of Texas this was a specific quote from a federal court decision in Texas referring to the decision makers in that case just Capital yesterday you had some discussion with Senator Lee about what it means to be a textualist and I want to go back and revisit that conversation and ask for someone at home who’s watching this why should it matter to them if a judge is a textualist what what difference does that make to somebody not involved with the springboard Center close to the foundation of the Constitution and the system that the framers designed with a legislative branch and executive branch and judicial branch that were all separate as was said in Federalist 78 the Judiciary does not exercise will but it exercise exercises judgment the policy decisions are made by the Legislative Branch with the president of course in terms of signing legislation inside the house the Senate and the president the president enforces federal law comes to the Judiciary when we interpret a statute if we as judges must adhere to the text of the statute why that two reasons I think our Paramount the first is the statute as written is what was passed as a formal matter by the Congress by the both houses of the Congress signed by the president in the laws who’s a for matter that is the wall so if we are going to exercise judgment not will we need to adhere to the law has passed and the laws passed is reflected in the written words that were went through both houses and signed by the president secondly and supporting that as a practical matter legislation is a compromise and within the Senate within the house with the president as well lots of compromises are inherent in any persuaded product and that’s what my experience shows that’s what I know your experience shows as well Center so when a case comes to court the statue comes to court and we upset compromise that you so carefully reached and where people might have given up this for that in terms of the legislative final language and we then insert ourselves after the fact into the process and upset the compromise if we don’t stick to the actual words of the text of the statute as passed by Congress so is both a formal matter of what the law is and it’s a practical matter of not inserting ourselves into the legislative process an upsetting the legislative process it is critical that judges stick to the law is written the text of the statute as passed by Congress and signed by the president in your view is is the proper role if any for legislative pissed in statutory adjudication as you know different justices have had different views on this why I think all judges are a much more skeptical of legislative history than they once were that’s the influence she knows largely of Justice Scalia but really very mainstream now to be very skeptical legislative history and again to reason support that skepticism if not outright refusal to use it the first is that the legislative history and by that I mean the committee reports or the floor statements made by individual members in the floor of the house or Senate are not part of the laws passed and that’s important because it would be very easy and I’ve said this in my articles for congress if there a paragraph or a page or more in the legislative history on a committee report that was really important will put it into the law but it into the introduction of the wall have it be part of the law that passed when it’s a committee report and might have just being been seen one Committee in one house might not have even been seen by the other house the president of course he’s part of the process might never have seen it so to rely on that is to upset the formal process by which law is enacted in the United so two again the legislative history the committee report is not part of the compromise that’s reached between the house and the senate in the present least not ordinarily and so you’re allowing one committee for example or one number to go down to the floor of the house or Senate Ian to say something that will shape subsequent judicial interpretation and upset the careful compromise that’s reflected in the text but passed by the Senate passed by the house and saw I’m by the president’s so again both formal and practical reasons why skepticism of legislative history is warranted why Justice Scalia I think was able to persuade justices across the Spectrum how does across the spectrum that legislative history is useful for understanding why something came to be but not as a tool for upsetting or changing your interpretation of the words of the statue also yesterday when talking with Senator Lee I believe you describe yourself as an originalist can you explain what that means to you what you mean by that and and why again people at home here why it why that should matter if a judge or Justice is an originalist so by originalist it’s important to be clear because they’re different things people hear when they hear the term originalist there was an old school of original intent the subjective intentions of the drafters Errata fires and that’s not really the proper approach in my view for similar reasons to the discussion of legislative history of Statutes fire original what I meant is original public meeting or the Constitutional textualism is a term I use the refers to the same concept which is pay attention to the words of the Constitution the Constitution is article 6 of The Constitution tution makes clear is law it is not aspirational principles it is lost the supreme law of the land in an accent is superior to statutes but it is law like stat just like statutes are superior law the car institution itself including the Amendments but the original Constitution was itself a compromised so it’s law and it’s a compromise reached to Philadelphia in the summer of 1787 and of course Madison’s notes in the history of that show all the compromises were reached by the most famous compromises the compromise that allows for representation according to population in the house representation according to state in the Senate the cut the Connecticut Compromise this it’s often refer to it’s important for judges again not to upset the comp the formal LOL that’s written in the Constitution or to upset the compromises reached either in the original Constitution or in the Amendments now one one anything to add to that is President is part of the Constitutional interpretation as well as Federalist 78 makes clear in the judicial power Clause of article 3 also makes clear so a system of President is built into how judge interpret the Constitution and constitutional cases on an ongoing basis so that’s part of the proper mode of constitutional interpretation are the important system of President can’t thank you the topic you and I discussed yesterday which is religious liberty which is a topic of considerable interest and importance to Great many Americans in private practice you you wrote an amicus brief in the Santa Fe for Congressman Steve Largent and JC Watts could you describe to this committee what that case was about and and and your representation there I will for Senator cornyn argue the cases at general for the State of Texas and did an outstanding job armor participating in the food court as the sender never called it didn’t turn out too well you did it you did an excellent job center remember being there for the case involved prayer before a football game in the Supreme Court Cortez had number of cases on religious expression in schools and these are always a challenging cases and very fat Pacific other two principles that the presidents have set forth one is that school-sponsored prayer at school events is often in permissible either at the school day and go versus Fatale graduations Lee vs. Weisman at the same time when students want to express themselves in some way t-shirt clothing or saying their own prayer say before a football game or other event that students were say a prayer out for themselves or there’s an open Forum where students are allowed to say whatever they want and one student chooses to talk about religion or say a prayer that’s generally on the Free Speech the house freedom of religion side of the house of the Supreme Court precedent which would protect the religious liberty of the individual in that circumstance the Santa Fe case came I think Center Corner would say free speech freedom of religion side of the house the Supreme Court thought that the school was too involved I would say in the prayer opportunity in that case and that’s attributed the prayer in that case to the school Supreme Court therefore said that the the prayer in that case was impermissible is a very fact specific decision I think based on how some of the actual prayers had gone down in the in the school district they are and so is really not gray area on the facts between these two principles freedom of freedom of speech and freedom of religion for individuals on the one hand no school sponsored prayer on the other and those two principles are part of the supreme court press not that I think the courts have applied for a long time now so what led you to want to take on that representation in the Amicus brief I think at that time I worked on several I was asked to work on several cases involving religious liberty and religious speech I also did a case in the good news Anika spray from The Good News Club case and that was a case where a school district allowed use of gymnasium Auditorium area after school for whatever group from the community wanted to use the facility and they would allow everyone to come in the Boy Scouts the community any community group come in but they didn’t allow religious groups to come in and that seemed to be discrimination against religion discrimination against religious people religious speech and I was asked to do an amicus brief which may are the points I wrote that made the point that religious people religious speakers religious speech is entitled to its place on an equal basis in the Public Square including in this case in gymnasium the Supreme Court agreed with that principle in that case stating that discrimination against religion in public facilities and then in the nature of what was going on in that case was in permissive violation of freedom of speech freedom of religion and therefore unconstitutional and those cases are important I think because it’s important that the constitu recognized that the constitution the First Amendment of the Constitution as well as many statues of course I protect religious liberty in the United States religious freedom in the United States and as I said in some of my opinions we were all equally American no matter what religion we are or no religion at all that means religious speakers and religious people have a right to their place in the Public Square another case you you were involved in as a judge is is Euro to dissent from denial of rehearing Bonk in in the priests for Life case in can can you tell this committee about about that case and then your opinion there there was a group that was being forced to provide certain kind of health coverage over there religious objection to their employees and under the religious freedom restoration act the question was first was this a substantial burden religious exercise and it seemed to me quite clearly it was that was a technical matter of filling out a form in that case with that they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were as a religious matter objected to the second question was did the government have a compelling interest none-the-less and providing the coverage to the employees in applying the governing Supreme Court I’m from Hobby Lobby I said that the answer that was yes the government did have a compelling interest following Justice Kennedy’s opinion in Hobby Lobby said the government did have a compelling interest in ensuring access and then it came down to the least restrictive means prong of the religious restoration act in that prong of the act 2 my mind is an opportunity to see is there is there a win-win in some respects and other words the government interest in ensuring Health Care coverage can that be provide without doing it on the backs of the religious the objector so that’s what the courts looking for and that case Professor bollocks written about that in that case it seemed to me that the government had Avenues to ensure that the coverage was provided without doing so on the backs of the religious objectors and I so ruled following the Supreme Court precedent in Hobby Lobby and then a subsequent case Wheaton College where they had an order that I followed and to me to dictate the result that I identified in the priests priests for life to sent another case of the religious freedom restoration act just to reiterate was overwhelmingly passed by Congress in the early 1990s signed by President Clinton and was an important addition to the protection of religious freedom in the United States to supplement the Constitutional protection that exists in the free exercise clause would note much like yesterday when we discussed your pro bono representation of the synagogue that priests for Life using the Paradigm that some of the democratic Isle of suggested of little guy big guy by any measure the priests for life where the little guy against the almost all-powerful federal government and in that opinion presumably because you felt the law dictated at you sided with the priests for life in the in that decision rec center and I think in a lot of the religious freedom cases that the Supreme Court’s had that’s been the case there was a prisoner in an opinion written by Justice Alito I believe the unanimous opinion where the prisoners being for a Muslim prisoner was forced to shave his beard in violation of his religious beliefs Justice Ledo’s I recall wrote the opinion for the Supreme Court saying that was a substantial burn on his religion it was not necessary and that’s just another example of how religious liberty protects all of us no matter what our religious beliefs are and that’s an important principle foundational principle both of the Constitution of the religious freedom restoration act another case that you were call that in your career that stood out to me personally just being a cuban-american is that as I understand it and November 1999 when Elian Gonzalez came to this country as a young child and sadly the federal government ended up coming into the home he was staying with machine guns take him into custody in removing him to Cuba that you represent you worked on on Ellen Gonzalez case pro bono against the ins for turning into Cuba and end if you could talk about that case a little bit thank you Senator I was asked by another person my firm’s would got a call from someone in Florida weather we could on a emergency basis do on several call rehearing and Bank petition the 11th circuit and then a cert petition in the Supreme Court on a really very short notice because of he was going to be returned other question was really due process what kind of hearing needed to be held before the ins for turned him to Cuba was a question of the refugee act as what that required and also question of the due process clause and interesting lately it seems that the ins had not was interpreting the refugee Act way that seem to stretch of the statutory language language and was not in some kind of formal regulation so the question of Chevron deference to an informal agency position was a question the case and I I wrote the surf petition Bank petition before that saying that the agency was stretching the language of the statute beyond recognition and was doing so in a way that was entitled to no difference because it was not in any kind of formal regulation which years later turns out to be a position the Supreme Court is agreed with in terms of administrative law but in that case I got involved because I was asked to get involved on a moment’s notice and a case of importance for people who needed help and let me just ask one one final question you’ve been nominated to the highest court in the land as you know there’s another highest court in the land that is the basketball court atop the US Supreme Court and I believe that the no sitting justice has played regularly there since since Justice Thomas many years ago when he was a much younger Justice if you are confirmed do you intend to to break that tradition and return to having a Justice play on The Heist what I do if if works out to be confirmed by wallet Justice Thomas did at some point get injured so I hope that president is not one that I that I would fall but if I’m fortunate to be confirmed yes indeed Senator that I’m very glad to hear it before I call on Senator Toba Kar there’s a couple things one I became where the fact that a lot of the committee confidential material that’s been requested some of the request we got were already public so somebody’s not doing that very good homework if they’re asking is for committee confidential stuff to be disclosed that that’s already available to the public then I want to ask you you testified in 2004 that you were not involved in handling judge priors nomination while you were in the White House counsel’s office is that right I believe that I’m talking about the handling of it we have one person who would be assigned to either God I was not the as I recall at least I was not the primary person on that so isn’t it the case that somebody else handle just a name I don’t remember who it was Ben Ben Powell it sure could have been yes he was another associate counsel what if any involvement did you have I don’t recall specifics we would have met at meetings I could attended a moot Court where we did a mock hearing I don’t remember specifics but I sounds that sounds right to me that been what have been the person primarily in charge of that handling it well attempting to us anyway that you were interviewed that you interviewed judge prior the documents that we have that he was referring is one of your colleagues asking how the prior interview went is certainly see to me that this email is more likely to indicate that you know the people who interviewed judge power but may have even been kept in the loop because it was something that you were interested in that that sounds correct I knew and therefore was interested in his process soon thank you very much mr. Sherman some follow-up from our discussions yesterday Josh I thought I’d start with campaign Finance document that the chairman has pointed out several times was originally designated committee confidential that I put the request in and got made public and on that document you said that contributions limits on contributions to candidates have some constitutional problems and I asked you about Buckley V Valeo which is notable because it did not apply strict scrutiny the campaign Finance laws he really didn’t answer yesterday about whether you would follow that precedent of Buckley and so I want to be more specific do you think that strict scrutiny is the right standard to apply to all campaign Finance laws the Supreme Court say senator has since 1976 in the landmark Buckley case applied a different level of scrutiny is one way to put it to expenditures on the one hand and contributions on the other and that. bride has persisted since then to the current day so that now contributions to parties as well as candidates on the one side of the line and independent expenditures are expenditures and donations to outside groups on the other side of the line so that that law is pressing on the Supreme Court that’s been around for a long time and has set the basics for the campaign Finance framework that we’re all familiar with so do you see big blue you say it set alarm precedent I’m trying to say it is president of the Supreme Court that’s been applied since 1976 and therefore entitled to respect under the principles of Starry decisis and anyone looking to upset that there people who don’t like the expenditure the freedom to the courts blessing of freedom to make unlimited expenditures of course their people from the other direction that don’t like so contribution limits who don’t like Buckley vs Valeo from that side either so they’re people who had a hit it from both sides but it is a precedent that’s been applied repeatedly in brown V Board of Education set alarm inside said many times before is the single greatest moment in Supreme Court corrected historic mistake in Plessy versus difference between when you say some things are precedent which is what you know we had an issue here because the last time we had justice Gorsuch set a bunch of things for president and now he’s on the cord and he’s already dissented actually from Justice Roberts and didn’t even want to uphold the reasonable expectation of privacy there so I’m trying to get at the difference between when people that come before president versus settled log do you think there’s a difference in those two words here’s what I know Senator which is 4 cases or issues that might come back before e-court it’s important to matter of Independence is reflecting the nominee president not to give forecast for hint about that and part of that is giving a thumbs-up or thumbs-down on those precedents that could be involved in that get it Brown V board of education is settled law and say like Roe v Wade you just say it’s precedent precedent on president with Casey is that a difference cuz I could Brown V Board of Education was how many years ago so that was 64 years ago but Roe v Wade was 45 years ago and I’m trying to figure out if you are using these words in different ways when something is President and something is settled law so what I’m trying to do is it here to the wine that’s been drawn by the eight justices currently sitting on the Supreme Court in the line they’ve drawn is for the vast body of Supreme Court precedent and they refused and Justice kagan’s words to give a thumbs up or thumbs at present there are some historical cases where there’s no Prospect of that case coming back where they felt free to indicate their agreement with them and so that’s brown V Board of Ed in brown V Board of Education single grade moment but it’s just a role is now 45 years old I mean that’s the issue why isn’t that a thumbs-up stop at law no none of the currently sitting justices of the Supreme Court have open John that I want to go back to Presidential Power and this isn’t a hypothetical I’m just going back to in 2009 which isn’t that long ago in the University of Minnesota law review and that’s why are you sad we should not burn in a sitting president with civil suits criminal investigations or criminal prosecutions and when you and I talked about this yesterday you said that Congress could still pursue an impeachment with that impeachment wouldn’t comment on it but your view when you wrote this was that your view now is that Congress should still be able to pursue impeachment on the Constitution specifies impeachment of boys as a tool for and I in the Constitution self about it did you think the band in this is what you meant that a president shouldn’t have to be investigated when you said it right the contacts they are I believe senator I was talking about civil suits or criminal investigations or criminal lawsuits and it was not my position on the constitutionality it was something for Congress to consider and the idea was reflecting on my experience after September and what we could do to make the presidency the most effective American people I’m trying to understand and practicality when you look at the last impeachment proceedings how you would an effect do this if he didn’t have an investigation to the other ones have used independent counsel they’ve use special counsel and if you don’t have that don’t you effectively eviscerate the impeachment part of the Constitution not-at-all Senator historically Congress is off and had investigative body set of done the work for the why would we want to foreclose our ability to use a special counsel or an independent counsel so that was that’s your decision ultimately in Congress to decide that’s review that you just articulated in and of course Congress is not enacted any special deferral for civil suits so Congress is stuck with the Jones dequinton results from that case and is stuck with of course the the existing system of special counsel to get back into where you were in 2009 when you wrote this as opposed to just using a hypothetical so we said several times here no one is above the law and I said that in my own statement but when you said this then do you mean no one is temporarily Above the Law so if a sitting president if she was in office and and there was some crime committed murder white collar crime then you’re saying in this article at the time that she shouldn’t be subject to criminal prosecution for Congress to consider if it wanted to pursue providing a temporary deferral there is there are statutes that do that from where’s the military to service members serving overseas in fact I think President Clinton’s brief in the Clinton versus Jones case cited that example as something where there is statutory protect deferral not immunity it’s important to distinguish deferral and not above the law that the timing of when a particular litigation will occur so now I wouldn’t call that above the law to call that a timing question 8 years given an again I’m reading the words we should not burn a sitting president with civil suits criminal investigation for criminal prosecution so it feels commit that was your view when you wrote that it was idea for congress considering light it with along with many other ideas I had in there about judicial confirmations and War Powers and it was all reflecting again that one was reflecting on an idea Congress could consider the whole point was to make the help help the country do better based on my observations from three five and a half years working in a White House where during war during wartime another topic this follow-ups from Center Harris’s questions from last night she asks you questions about voting rights on the ranking member of the rules committee and as she noted many states have restricted access to voting since this app the Court’s decision in Shelby County which struck down a key provision of the Voting Rights Act and according to the Brennan Center at 23 States now have more restrictive voting laws and they did in 2010 many of these laws have been check some event over-turned so here’s one more question on that should courts consider these widespread efforts to restrict voting the what’s been going on since 2010 when ruling on challenges to statute the fact the right to vote but I think in any particular case Center you’d want to see what the record established in the case was in the record could include what’s going on in that particular State and I can imagine if I record word where that would include also potentially what’s going on in other states as well so I can study nonpartisan organizations have found no evidence of widespread voter and a study by The Washington Post found only 31 credible instances of fraud from 2000 to 2014 out of more than 1 billion ballots cast at do you believe there’s evidence of voter fraud do you believe I know you’ve told Center Harris that you watch read some election law blog that we sitting here last night and so have you read one of these articles on widespread voter fraud on one of these blogs you mention I’m just concerned because that’s out there and I would think that would be something that could be looked at well I’ve been he’s really look at Professor Hassan election law blog and that that that’s one of the ones that I’ve looked at it look at other blogs as well and that there is discussion of this issue and I would want as a sitting judge I would want to see if a record before me of what’s going on in particular case I hesitate to Alpine on something based on something I read in the law review article or log yet thank you have a better sense of what’s going on there but I would want to record in a particular case to determine what what the evidence in that particular case was night and in a 2017 speech at Notre Dame you discussed how affirmative action represents a quote longstanding exception and quote to the quote basic equal protection right not to be treated differently by the government on account of Grace and you summarize the Court’s debates on this issue and remarks on what basis is the court making those decisions is there something in the text of the Constitution that tells us one is good enough and the other is not good enough not really again this is common-law judging to define the Contours of the exception to the constitutional right so what did you mean by that statement what I meant by that is fully in many areas of constitutional law have Free Speech rights but we have exceptions Analyse usually we’re just talking about under strict scrutiny and we talked a lot about the 2nd Amendment how the regulations that coexist with the individual Second Amendment right and so two in the 14th Amendment vehicle protection contacts what kinds of programs are permissible consistent with the equal protection right and they’re the precedent is critical on this suppressant is built up things over time the Box case of course are the most prominent in the higher education context where the court rejected remedying passed societal discrimination as a basis for an affirmative action program at the court accepted diversity as a compelling interest for an affirmative action program in that rationale has remained as part of the Supreme Court’s Preston in the higher education contacts so the court applies these principles they build case law overtime and that’s part of the system of precedent that develops and that’s what I was referring to their I believe and women-owned businesses in transfer Mason Contracting was unconstitutional this was a document that was just made public by the chair today although you say that you’re was your personal opinion in the document I you told Center Booker that this was serve you as a lawyer for a client the client was the president at the time other program remains in twice today and it’s intended to level the playing field and increase the participation of minority and women-owned businesses and local and State Transportation projects I’m just trying to understand your views here do you believe that the use of race is a factor in federal Contracting programs violates the 14th Amendment note in that case as I understand it and seen it briefly I was rooted in Supreme Court precedent the croson case and I think it even says she crowson in the email and Frozen is the Supreme Court precedent where the court had invalidated a Richmond Contracting up Gramma’s I recall and so that President made clear what conditions need to be satisfied before a racial a Contracting program of that kind could be sustained consistent with the Constitution and the analysis so we went through set suggested that at least as it was being applied as I recall the federal program when a foul of the Supreme Court precedent specified in the croson case so in that sense I was providing advice about how the program would fit within the Supreme Court’s existing precedent in a croson case at least that’s my best understanding I haven’t gone back to we study at but that’s my best understanding was that it was rooted in the president of the Supreme Court can get that in writing at some point if you want to look back at it we witnessed unprecedented attacks on journalist in journalism over the past several months this should be concerning to everyone because the role of journalist critical to our democracy this is personal for me my dad was a journalist his entire life and even wrote A Blog he’s now 94 a while you probably didn’t read that one though in New York Times V Sullivan out-of-court issued a landmark ruling in support of First Amendment protections for the Press by firming that when newspapers report on public officials they can say what they want unless they say something untrue with quote actual malice info under New York Times V Sullivan do you believe the First Amendment would permit public officials to sue the media under any standard less demanding than actual malice and can you explain what that standard means to you well Supreme Court has elaborated on and apply that standard repeatedly over time I have 2 as a lower court judge and that so that precedent is now been applied over and over over again I’m not aware of too much effort to deviate from that standard an interesting way in New York Times versus Sullivan the court in the course of that opinion said that the Sedition Act of 98 had been overturned in the court of History which I thought was an interesting turn of phrase in the New York Times versus Sullivan the Sedition Act was the act that said that criticism of public officials was illegal in the United States in 1798 never actually struck down by Court New York Times vs. Sullivan they made clear that that active been overturned in the court of History from doing their job that X under threat of jail time and I raise this issue in the hearings for many of the Justice nominees to justice department nominees is Congress but it’s also critical for the court in branzburg V Hayes 5 for court I didn’t recognize the reporter’s privilege at least in the context of a criminal at Grand Jury testimony since then various circuit courts have debated The Contours of the decision with most ports with most courts now recognizing some type of privilege particularly in civil cases can you talk about the scope of that decision and whether they were instances where the cord should recognize the reporters in civil cases so I did sit on a Case once where we had exactly that question presented I knew that night and we had a great oral argument and it was fascinating and I put a lot of time and do something and then it’s settled before opinion ever came out so I never actually released my opinion on that issue and but I know the issue well from the time I spent on that set the time and I know the arguments you and share them with us well I figured it didn’t matter that I could come before me again so I just one dependents I can’t do so but I I will say it’s a very interesting issue a question and Preston and the oral argument the case which is available publicly it was was fascinating because of the issue presented as you described it how would you apply the First Amendment to report his decision to protect the confidential source so there is also important president on that matter that makes clear the importance of the relationships of reporters and their sources again the criminal civil divided there is something that I think has been a part of the case law in the in the past where the criminal text husband been deemed in some cases sufficiently compelling but that is a set forth important part of the reporter’s privilege in the relationship with confidential sources is very important I understand too role of journalist in bringing sunlight to American democracy thank you before we go to senator judges to Lifetime appointments 88 federal judges this week last week we did 7 judges 12 or confirmed without any objection from Democrats and so we’ve had a pretty good over being able to show that that you don’t have anything to fear from Lifetime appointments for federal judges like we’ve heard a big issue it is today boy play mr. chairman judge congratulations on your last day of interviewing in your life seven was the first year I’ve talked well separate calendar years. Let’s pretend you’re a sixth grade civics teacher for our 20 minutes together instead of a law professor president critically important but I don’t think the American people is not something we debate that much so it’s something that maybe we could benefit from having more shared understanding about has the Supreme Court ever made a mistake made some major mistakes at times Fred Scott Plessy versus Ferguson good examples how do you know when you have a mistake sometimes you know right away and I think in those cases with the descents written in those cases those two Center new right away and I think there were mistakes right away Plessy versus Ferguson was wrong the day it was decided it’s 1896 and we know it was wrong when it happened what was the ruling count you remember about there was only one to Center Justice Harlan the first Justice when was the only two Center in that case it’s so close to McCann’s event that I don’t know I know we shouldn’t be joking right now but I just want to talk about lunch Republican Senators have lunch together three times a week and whenever we do if so his phone goes off it was always trying McCann’s it came on at full volume ten past you wrote a really important article in Catholic law review last year the ten principles of good umpiring and it wasn’t about you as basketball coach was about the job of a judge I’m going to speed through them so I’m I’m oversimplifying but I think your top 10 list was if judge or if you’re not on fire how you can’t get partisan you’ve got no rooting interest you got no fan-favorites number to the rules have to exist before the game number 3 you have to apply the rules consistently for you can’t remake the rules based on your preferences if your view of the game changes does a couple years ago that at the goal line it may be the case that the NFL decides in the course of a year that the targeting penalty doesn’t work at judge doesn’t get a remake that rule on the Fly my number five you got a backbone or courage number 6 you have to be able to tune out the crowd number 7 you have to have an open mind you think you know what case is coming before you and people may prevent arguments that are different than you thought number 8 you need to write demeanor and temperament number 9 you have to work really with your colleagues number 10 you have to be good at explaining rule number to the rules have to exist before the game you then go from having a kind of paragraph by paragraph structure are you pause and had a long to be and you explain a little bit about president give us a 60 or 90 seconds you about how president relates to having rules of the game before the game yes press it is important for stability and predictability and so to know what the rules are ahead of time is it Horton for good judging and for good umpiring and to do it consistently with how it’s been done before and I think is part of the system of Preston the the when the rules are set ahead of time by the president or by the law then you’re not making up the rules as you go along In the Heat of the Moment which will seem unfair which will seem like you’re apart isn’t because you’re going to seem like you’re favoring one side or another because of allegiance that team or favoritism to that team rather than applying the rules ahead of time which is why in sports as you know well senator cuz I hope your Devotion to sports there a lot of detailed rules that are set forth about how the game is played and how referees and umpires are supposed to call the game and that’s to insure and that there is predictability there is stability that the players can rely on that and that it’s over all fairness to process is not a word used often in the refereeing context but it really is an element of due process about what the rules are ahead of time so that everyone has confidence in the fairness of the game and that the umpiring which is critical to the outcome of many games is Don in a fair and impartial way so facilitates in partiality Integrity of the game fairness of the game and it’s true for a game Sports and it’s true I think the analogy is very strong frankly and this is why I wrote that article the Chief Justice of the course and talk famously about the judges on fire and cuz I hang coach and play a lot of sports and I really thought about the analogy and I thought they’re actually a lot of parallels between being a good judge in a good umpire I’m kind of sort of umpiring I want to jump in here cuz I agree with you that the allergy is strong and tight but I think it’s in perfect right because in a football football football game happen inside the four corners of that hundred and twenty yards with endzones is predictable in that Woody Hayes comes out the sideline in 1971 and punches a player in the face that was new and yet it was still non-participation there was there’s a really reliable Flyers coach can’t play another football player can’t play there was a rule that spoke to that but and what you’re doing it’s not as to find because the cases that may originated or not it’s perfectly cabin a ball that’s Edward in football what might happen so help me understand the distinction between judging as umpiring and the fact that the Supreme Court has made decisions in the past it isn’t the case that every decision of supreme court has ever made is right and is now a part of the permanent rulebook you sometimes have to throw them out so sixth grade level help us understand how from 1818 96 to 1954 repeatedly called Brown not a greatest moment Supreme Court history I think it’s one of the greatest moments in American history as well in those 58 years the court was wrong for that whole time and yet the way we think about President we might have our 6th graders thinking we should always take every receive decision as right so how do you how do you reconcile the tail Supreme Court looks at or whether the decisions not just wrong but grievously wrong whether it’s inconsistent with the wall That’s growing up around it what it what the real world consequences are including workability and then Reliance and one of the genius moves of Thurgood Marshall among many genius moves he made as a lawyer was to start litigating case-by-case and he knew plus he was wrong the day it was decided but he also knew the As a matter of litigation strategy the way to bring about this change was to try to create a body of law that undermines the foundation’s of Plessy and he started litigating cases and showing case-by-case that separate was not really equal and he did it in cases like sweatt vs. painter and many other cases we built up a wrecker overtime that by the time he went to the Supreme Court to argue Brown versus Board of Education he had shown it’s inconsistency with the law that it built up around it for those who weren’t otherwise as quickly on board the idea that plus he was wrong the day it was decided I want to taking no chances I want interrupt you cuz I want you to keep coming for these 58 years but just as a Civics commercial what you’re describing right here in the new documentary Marshall every mom and dad and teacher on a show their kids actually got to see it before it was out cuz Senator Harris gave me a copy in my kids and I watched it before it was public but every everybody should watch the Marshall documentary that’s going through the history of what he was doing as a long-term litigation strategy but continue please the time I got the Brown versus Board of Education that the foundations for overturning Plessy have been strengthened by showing what the real world consequences were and by building up a body of law that was I inconsistent with the principle the erroneous principle set forth in Plessy and so he had a strategic vision of how to do this which was brilliant and he effectuated along with the team of lawyer overtime litigating case after case after case and building up factual records that would show of the harm the bad as the Supreme Court openly said the badge of inferiority from separate educational facilities and separate separate he’s more generally and that’s that’s how he was able to show that the precedent I even with principles of Starry decisis and place should be overturned but so if you’re on the core during that period that 58 year. I want to get it some point to this distinction between President super precedent precedent on precedent super duper president but one of the reasons you think this is because of the Harlan dissent so back up again since 6th grade level what’s the purpose of a Descent Why do we write them we write the cents because we in a multi-member court disagree with the decision that is being made by the majority and because we think that the issue is sufficiently important if your on the Supreme Court that perhaps a future Court will pay attention to your decision or in a statutory case sometimes Maybe Chris will think that your interpretation the statue was better and maybe Congress will update the statute to reflect your view but the purpose of the sense in constitutional cases I think Justice Ginsburg said this Justice Scalia used to say this $0.02 often speak to the Next Generation and it’s important therefore in constitutional cases of importance to have those two cents and Harlan’s dissent I was I was a classic it had some lines that are very memorable about the separation of the races in the Louisiana are rail cars that large it that long just recently been enacted so this was an example after the 14th Amendment after the Civil War in the Fourteenth Amendment there was a. Of of positive movement at least some pause if movement not complete by any stretch and stridor versus West Virginia reflects that in 1880 where the Supreme Court says what is this but the Lost be the same for the black and the white that was the case where African-Americans were being excluded from jury all-white juries in Spring Court said no to that and but then progress any progress went backwards and is reflected in the Plessy versus Ferguson decision which upheld the separation of the races in that in that case I’m so the Harlan dissent was very important for setting for the clear principle rooted in the text of the Constitution and rooted in the principles the Fourteenth Amendment and subsequently Vindicated at least on paper of course in Brown versus Board of Education why do you write a concurring this at or concurring opinion in the majority opinion sometimes will write a concurring opinion to the majority opinion because you you have a different rationale for reaching the same result so you might have a two who’s your audience your audience that’s a good question sometimes it’s also future courts but often times when you’re at the Supreme Court level I think I’m so don’t know but I think they’re writing concurring opinion sometimes the influencer or suggest things to lower courts about how this case either another issue or related issue or tangential issue should resolve the thought about in the lower courts sometimes the concurring opinion is written to the Future Supreme Court that might be five years down the road about an issue that’s related to the issue being decided by the majority opinion there lots of different this is that one might have for a concurring opinion when your on the Supreme Court at least as I’ve read them over the years so when we give you a hypothetical you’re you’re on the court and there’s a 623 decision and you’re on the losing side until you right the signs and the next year there’s a case that looks to you to be almost exactly the same so you don’t Grant cert you don’t vote for it but other people do and showcases coming back before you and I know you’re going to tell me that you need to be open-minded and maybe the case is really different you were wrong when you did but just bracket that problem for a minute let’s pretend you’re 6 3 case you lost then there’s a new case that comes before you are you supposed to have the view of the majority the next year even though you disagreed last year or do you write the same descent again matter of precedent the ordinary course is that you follow the precedent of the Supreme Court even if you were on the losing side maybe especially if you were on the losing side there are times where justice has have persisted in their 2 cents repeat over the years particularly in certain critical constitutional issues or sometimes they have not persisted in The Descent but join the majority but said I still agree with myself back in the prior president where I had to send it original he different approaches to this by different justices on different issues I don’t think it’s a one-size-fits-all answer to your question weeks in terms of what the justices of done overtime on that particular question I most famously Justice is Marshall and Brennan dissented and every death penalty case because they did not accept the president of the Supreme Court that allowed the death penalty under the 8th Amendment how do you imagine you would act in that circumstance if there’s a Prince is a diversity of views across justices in our history but if you got the same case coming back the next year do dissent again or do you accept a majority opinion could you write the majority opinion will that’s what I think a good judge which is once the decisions been made you accept the precedent subject to the rules of Starry decisis and yes there are lots of historical examples where that is happened and that’s been done Justice Whitehead been into Center in Miranda versus Arizona famously and then wrote many decisions applying Miranda subsequent to that accepting the decision Chief Justice rehnquist of course ultimately wrote the decision where question was whether Dover will Miranda and what the decision reaffirming Miranda cuz he decided that it’s at that point it would had did not meet the conditions for overruling oppressed in that case I think ordinarily ordinarily you you get on board the president but you might still write separately to say I think this was a huge mistake and we should go back to a different approach you see that sometime I think there’s lots there lots of from Utah to the question you’re asking center button the ordinary course I want to ask him if the chairman will only let me have three and a half more minutes miserly about the what’s the difference between an appellate court judges job and a Supreme Court Justice the shop there are many I think I can specifically with regard to questions where there’s been a precedent so I’m at the DC circuit level court of appeals level we follow vertical star in sizes absolutely and that means that we are not permitted to deviate from a supreme court precedent with respect to Supreme Court or let’s put it this way when I’m in the DC circuit and we’re reconsidering in Bank a prior president of our own we can do that at times at the conditions for overruling a precedent are met we can’t do that with respect to Supreme Court Preston we have to file that and why that cuz that sucks there’s one supreme court in our high hierarchical system and lower courts have to follow that are there be chaos in the federal system if lower Court’s warrant strictly down to follow the presence of the Supreme Court is there a single Supreme Court Justice today who agrees with every accent opinion of the court I think that’s got to be zero right so how how does that get netted out in the next controversial case when you use these terms president super precedent precedent on precedent how does that getting that it out ordinarily out by the court following the president until unless and until the conditions for overturning something or Matt Brown vs. Board being the the most prominent example of when that happened Erie Railroad case overruling Swift versus Tyson their examples to router freeware that’s happened but it’s rare and ordinarily would happens is once a decisions been decided that’s what star decisis means you follow the decision that has been set forth by the Supreme Court subject to the rules of Starry decisis that time again that’s part of stability that’s part of predictability that’s part of them partiality that’s part of public confidence in the rule of law that it’s not just going to Milton move Pillar To Post that the law is stable and sound again it’s not Brown versus Board shows it’s not absolute and that’s that’s a good thing but it is critically important to the end in partiality instability ability of the law and the fact that Harland should have been The Guiding opinion for those 58 years isn’t true just for the Supreme Court it was also true for appellate courts couldn’t appellate judge have gone with Harlan in 1940 and apologize was bound by the press in the Supreme Court and that would have been sadly Plessy versus Ferguson that time so this is a good core difference here for the Supreme Court is there’s greater latitude to reconsider the prettiest errors in the carton of the Supreme Court that’s correct Center 30-second spot so I got to get my last one out to get in under the Bell I’ll shift gears just a tiny little bit what is the Declaration of Independence and in what way the Constitution is fundamental what’s the Declaration of Independence Declaration of Independence proposal legal document legally declaring independence of course from Great Britain but it also sets forth a series of grievances against the monarchy the system many of which were reflected in the constitution in terms of protections that are in the Constitution if you trace to the Declaration of Independence you see the Grievances they had reflected and protections we have in the Constitution starting with the separation of powers but also including the individual protections weather is ex post facto laws or freedom of speech or quartering of the 3rd Amendment not much litigated as we know Center but all you can trace it with this Declaration of Independence is a set of that I think guide our beliefs life liberty and the pursuit of happiness all men are created equal all people are created equal in our society and those principles have guided us inspired us than the source of our Liberty the source of much of what we’ve done is a country since the Declaration of Independence but it’s not wall in the same way the Constitution is laws thank you Karen Grassley thank you Karen Grassley thank you to you too Ashley to your fam and friends thank you for being here in for I’m the opportunity to engage with you again you certainly shown great persistence and engagement we talked about the Bedrock constitutional principle that no one should be above the law including the president which is a principal foundational to our democracy it’s about more than any one person anyone president and I just want to continue asking you about the presence obligation cooperate with the federal investigation and how your view of the president’s power might implicate and investigation as we all know in 1974 senior officials in the Nixon Administration in the campaign we’re on trial for crimes related to Watergate and with so many for White House in Justice Department officials implicated in crimes then President Nixon felt threatened by the investigation so special prosecutor Archibald Cox when he issued a grand jury subpoena for the Watergate tapes audio recordings of White House conversation reasonably believing they contain evidence of criminal activity the president acted instead of complying with the subpoena for tapes and providing the evidence President Nixon had the special prosecutor fired and he fought the subpoena for the tapes the way to the Supreme Court I want to focus on the question of the president’s action in firing the special prosecutor because that’s what I think is a key issue here George when President Nixon fired special prosecutor Archibald Cox did he violate the law Constitution looking I know there’s the Malaysian in place for Leon Jaworski after the firing had special protection for against firing and I think that’s become the model for the regulations I’m not recalling the specifics of the Cox regulation in place at the time I’ll tell you that there were four cause restrictions in place in regulation at the time I’m giving that do you think firing the special prosecutor violated the law or the Constitution violated the regulation I waited the regulation violated the Constitution view of Presidential Power and whether or not it would be a violation of the Constitution for their to be these for cause prevention restrict the president’s ability to fire the special press the Supreme Court in United States vs Richard Nixon analyze the specific regulation at issue in that case and actually relied on the specific a regulation and finding that the case was too sociable under the precise terms of the regulation in place at the time and take the court Analyze That it in really specific detail pointed out that so long as the let me be clear about the point I’m trying to get to it’s your views about whether or not when President Nixon fired Archibald Cox obstructed Justice in violation of the concert where the firing itself violated the Constitution it’s important to know your views on USB Nixon as well and will turn into that but I’m interested in your understanding of the Constitution and whether or not it prohibits restrictions the president’s ability to fire a special prosecutor at will the Supreme Court sad and so you’re asking My Views My Views are with the presidents has the in other words I follow the president the president of Supreme Court in the US V Nixon case I did apply that regulation analyze the it was unanimous 8-0 are you aware of any Justice having question the decision in US V Nixon sensor no I called it one of the four greatest moments and Supreme Court history USV Richard Nixon in a Roundtable in 1999 volunteered on prompted that maybe Nixon was wrongly decided do you think us V Nixon was wrongly decided I’ve said it was one of those for greatest decisions and correct decisions in terms of the specific rate Malaysian at issue in the case in the courts holding in the context of a criminal trial subpoena that the subpoena for the information the tapes was enforceable in that context and that’s what I’ve said before publicly copy Nixon Cason so dead 1999 and in the point was under the specific regulation at issue in that case a criminal trial subpoena for the information and it was a moment of judicial Independence the moment where the core I think came together as a unanimous opinion written by Chief Justice Berger so that’s an important moment in the in the courts history jury subpoena or can be compelled to testify in front of a grand jury I’m not going to answer hypotheticals about how to apply us Phoenix and holding the holding of us V Nixon was that the subpoena for the information in the context of the criminal trial had to could be enforced and that therefore given the regulation at issue in the case the case was just Isabel and The subpoena could be before I’m not going to answer hypotheticals about how it flies another context by the way I should add that that the context of what you have out there is incorrect but so but I said Nixon was one of the four greatest moments in Supreme Court history have written that several times before including 1988 99 the context of that if you want to know was a round table with me and some lawyers who would represent of the Clinton Administration we’re just talking reflecting on the independent counsel investigation and my point to them they they were concerned that the subpoenas that were enforced in by the courts during the star independent counsel patient had weakened the presidency that was the position of the Clinton lawyers and I said well we were just following us V Nixon that was my position so my position was either you’re wrong or Nixon’s wrong to the Clinton lawyers that’s the context of that comment that tone of voice their makes the printed words look much different from how they were intended I think that’s been seriously mischaracterize free is the fill acabaram who was facilitating this Roundtable who was the Watergate prosecutor who argued us V Nixon in later interview said he didn’t think you were just being provocative this was just an academic give-and-take with some Clinton lawyers cars been quoted saying that statement that perhaps next was wrongly decided was Brett’s taking out his jurisprudential approach sense law school it seems like a Vera thought you were serious about raising a question about whether USB Nixon was wrongly decided cousin this is what you said at the round-table Nixon took away the power of the president to control information executive branch right and that’s why the Clinton lawyers I thought were wrong so that was my point why should the person the point I was making was it that Clinton lawyers who were were saying that the independent counsel opposite weekends the presidency I was saying to the Clinton lawyers it wasn’t the star office who done that it was he it States versus Nixon that it done that and then I pointed out to the Clint Motors I think we’ve discussed this in the office had a good discussion in your office about this was I said but you were on willing I said this to the Claymores you around and willing to challenge United States Nixon well that was the governing president that’s the Preston we were litigating and that’s where your concern should be and that’s the context in which that line was said with all respect to mr. lacavera I think he’s he’s misunderstanding I was saying there and it died here’s how I know he was misunderstanding because of the contemporaneous law review article at that same time I specifically talked about us V Nixon and the importance of that present so that’s how I know he was misunderstanding the point of what respectfully I think he was misunderstanding the point of what I was saying there so if Nixon was rightly decided was Morrison V Olson rightly decided I’ve talked about Morrison V Olson exchange yesterday and Mike were concerned and what I’m getting at Associated myself with Justice Kagan position on Unitarianism if she calls at the unitary executive Theory the theory that you don’t just mention in passing but expound in your PHH $0.02 I don’t specifically recognize I understand the point but I specifically call Humphreys executor the president that we must follow in the independent Agency contact Humphreys executor of course accept independent agencies as did I in that case is Preston Supreme Court that I prefer do is entrenched the only thing I was the only question and PHH was can we go further than that kind of independent agency consistent with Article 2 or does he please executor draw the line that sets forth the permissible boundaries under which Congress can establish independent agency first and your descent in the cfpb case PHH first to see if you be your exact problem with the structure Congress created for this independent agency was that the director was not removable at will by the president the director is room but only for cause that’s the line that I’m drawing here between your concerns are criticisms in one context a long time ago about usb Nixon your comments about being able to fire the prosecutor will in a number of law review articles comments and some round tables and discussions in 2016 and The Descent in PHH and the structure of the cfpb what offended your constitutional sensibilities as I understand your descent judge this year in PHH was that the president couldn’t fire at will the director and that’s the whole reason of my asking you about did the president violate the constitution in your understanding in firing the special prosecutor in Watergate it is a coherence Theory you can have a coherent Theory but that the Congress can’t restrain the president’s ability to fire at Will Lester executive branch officials I just want to have a clear understanding of I want understand the question so the first part of the quest was part of your friend is overly today let’s return to an earlier exchange I had with Senator Feinstein she’s asking you about your descending PHH what was it that caused you to write an opinion what was the Constitutional review the underpinnings of your decision that having a sink director removable for caused by the president was constitutionally and sound yes so I was following a precedent of the Supreme Court from about 10 years ago free enterprise fund case I’d written descent at the DC circuit in that case a novel independent agency structure for the pcaob the accounting oversight board sent saying that the Dot Structure departed from the tree independent agency structure I just sent it the Supreme Court took the case agreed with my descent and majority opinion by Chief Justice Roberts saying that the outer lines at least design Surfer it was chief justice Roberts said of the Court the outer lines of independent agency are the traditional independent agency structures set forth and Humphries exact here at least that’s how I interpreted the opinion so long as it’s sit and isn’t this exactly why the majority in your circuit said that your descent flew in the face of Morrison they were they thought Humphreys executor loud structures beyond the multi member ages Humphreys executor I disagreed based on the free and I did the same thing I’ve been saying about my dissent in free enterprise fund Supreme Court took it and agreed with my descent and free enterprise fund I thought this case was very sad it’s very similar to what I written in free enterprise fun fact I block quote my oldest so much you didn’t say in response to Senator Feinstein’s question them still trying to get an answer to wasn’t your core concern in your pH to sent that the president could not fire at will the director the that was the concern because that departed from Badoo have a single director independent agency structure not the multi member independent agency structure existed in Humphreys executor and then raises questions and concerns about your distinction between fire bullet will or Fireball for cause but if and as this body has taken up and debated whether or not it is permissible for us legislate a protection for special prosecutors that they can only be fired for cause not at well your repeated citation of the Scalia dissent in Morrison V Olson rises again to the for that’s my question to you will you also agree Morrison was correctly decided it is good long it’s a settled case you may have in response to the previous question said oh it’s a one-off case about an owl extinguish statute but as I said yesterday why then pick it out of the whole constellation of constitutional opinions that the one you most want to put a nail in its coffin y the Animus against this if you don’t think it was wrongly decided but said what I said about Morrison but Justice Kagan said that it’s one of the greatest sense ever written by Justice Scalia which unless I’m misreading something you are Miss reading something with all due respect I went back to look at presidential Administration by Justice Kagan after you decided it to me yesterday that is clearly not what she saying you just not endorsing executive conflating beautiful to send in my view you don’t think she agrees with it I don’t think she agrees with it at all you believe what I’m encouraged by that you said when you call USV next in the greatest you think it’s rightly decided what I’m not getting an answer from you on is whether you think Morrison V Olson was rightly decided but I’d be interested in hearing what do you think Griswold vs Connecticut or eisenstadt versus bar work correctly decided and opinion that Justice is Kennedy Ginsburg Roberts and Aledo Crawford when they were before this Committee in their confirmation hearing I think I whether I agree with center with Justice Alito and chief justice Roberts on that I said yes review of The Independent counsel the idea that the independent counsel statute is unconstitutional cuz you’ve written and spoken about that repeatedly 1998-1999 and Law Journal articles and public speeches as I pointedly race yesterday in 2016 you call the independent counsel statute a constitutional travesty that’s what Sarah Durbin it also in essence called it what what I’m concerned about is what you I’m tired the entire Congress had basically taken that view in 1999 that the air was unrestrained unaccountable it’s a disaster in front of me so just give me a moment while you work for Ken Starr as independent counsel under the independent counsel statute you took an oath of office to defend the Constitution correct as interpreted by the if the Supreme Court upheld something you still still working your public servant utilize the tools available to the independent counsel right you were part of a team that sought a subpoena against President Clinton for evidence for DNA evidence minutes it’s your last 30 seconds okay I want to emphasize that the special counsel system that’s in place now is something that I specifically repeatedly and expressly said is consistent with our traditions in my 1999 Georgetown Law Journal article cfpb decision the special counsel system I’ve said is part of our tradition bad as the system in place you’re talking about something that has not been in place for 20 years the independent counsel statute that structure has place for 20 years Mike or concern first was that you’re perfectly happy to use all the tools available to the independent counsel when you work there after working there discovered an enthusiasm for its invalidation as a constitutional matter in trying understand that I’ve dug into your writings your opinions are speeches and concluded that you hold a view of the executive branch which I believe you made clear this year and your pH $0.02 which I believe is in line with Justice scalia’s for you as expounding his to send in Morrison V Olson which is that there has to be in the president as the chief law enforcement officer of the United States this is the unitary check if they’re not mine the ability to fire at will any special prosecutor and the ability and I’ve got quote from you in different context saying that what’s appropriate in this traditional special counsel setting like the Watergate. Is if the president disagrees with the conduct of the prosecutor you should simplify and bear the consequences my point essentially is this I’m convinced that you sent you said repeatedly support the traditional practice of appointing special counsel’s but you haven’t gone we supported this practice because the president has retained the power to fire the special counsel at will and those of us who have tried to enact statutes that might restrain the president in some way by putting in place for cause remove restrictions have had thrown back at us the descent from Morrison V Olson I just sent with you embracing site and it’s a sandwich I think reveals a deep commitment to a view of the president in our current context is profoundly and I simply wish judge and we’ll have a third-round to explore this I simply wish you would be clear with us and the American people about your view of the scope of Presidential Power and what its consequences might be I don’t think you’re being direct with me up because I think to be direct with me about that in this context would put your nomination at risk respectfully disagree Center you’re talking about a statute that is been not existed for 20 years I just no longer what I’m talking about your do you know what I’m talking about is your view of Presidential Power has made clear in speeches and in writings and in a decision this year we’re not talk about the independent counsel statute now we’re talking about the scope of presidential Authority and I think it has come appliances for our nation you are clearly a capable and good man and a good neighbor and a good coach and we’ve heard a lot about that what I want to hear more about is an honest answer about your view of Presidential Power you talkin at if I can answer on an uninterrupted for you can answer on the 10 minutes I didn’t use respectfully Center appreciate your care and we’ve known each other since friendly with each other since losco and your Devotion to this respectfully I believe you’re talking about a statute that has not been placed since 1999 secondly the special counsel system play written about multiple times and approved Thursday if there were some kind of protection for calls protection or some other kind of protection that we’re different from the old independent counsel statute that said that I would keep an open mind about that have not said anything to rule that out and finally I’ve reaffirms repeatedly applied repeatedly the precedent of Humphreys executor for traditional independent agencies and have never Justin otherwise I prefer to that is an entrenched precedent so those are too and I prefer to u.s. v-necks in as one of the greatest decisions in Supreme Court history we will soon take a break and then Center flakes up now but before there’s a couple things one it’ll be a 15-minute break but if you can make it 7 and 1/2 minutes I’d appreciate it my I would appreciate it but before you go I want to get back to this is Justice kagan’s comment on Morrison and this is something that you and the senator from Delaware have discussed a long time some how old is that the only commentary on Morrison’s Olsen is from kagan’s law review article presidential Administration but she also said this in a magazine Stanford law lawyer three years ago and it says Justice Kagan has called Justice scalia’s dissent in Morrison one of the greatest is sense ever written and said that every year it gets better wear in recess judge thank you Sandra flake thank you the cabinet if its fourth-quarter in your down by one point what play do you call in which one of the young ladies in the front row you get the ball to I can’t choose who they’re all great players it’s awesome to have them all here if you want to let us know who they are and what your team is here and some of these girls are as old as 10th grade so they’re older than my daughter’s I started coaching V 16 then I guess four years ago so the oldest girls Caroline and Abigail and the great sir and Fiona tenth-graders Madison 9th grade girls over here light will these are my two course and Keegan and Coco and Anna and Shaunie Quinn Sophie are all here and so let’s say we got license going to 5th grade mortgage C7 Keegan some V Coco’s and 5th and 7th shawnees and 7th Queens in 6th and Sophie is in seven so I think I got it all right well thank you Just Nails by Caroline there goes my whole life variation on the question that Senators asked asked a few minutes ago he asked you what two Supreme Court decisions over the years were decided wrongly that you answered you’ve decided over the past 12 years about 300 cases I believe on the Circuit Court are there any that you look back on and say I just didn’t get it right or this one hasn’t held up well over time and it I know that’s a difficult question is politician that’s a tough thing for us to answer but I’d I’d be glad to tell you the number of cases where Center SAS got it wrong where I reconsidered something in one case of the bull national security case that I had one of the questions in that case was what did the law of War mean in Section 8 21 and I referenced in the prior case being limited solely to the international law of war and then after reflection and actually after the deputy solicitor-general for President Obama argued in our court and oral argument he planted a seed me that I had interpreted it too narrowly in that included not just the international all war but the u.s. historical practice and I went back and really thought about that he made a compelling case it or argument and I went back and dug deeper and studied it and Altima we concluded he was right what he excited or argument and I reference that in my subsequent below opinion that based on the arguments of the Deputy solicitor-general I’ve gone back it’s like a it’s like a replay official if you made the call in the original case but gone back and start again carefully studied it over and over again and went back to the history and concluded he was right so that’s one example where I myself in one of my opinion opinions pointed out that in a previous decision I had on Yonder interpreted the scope of one statute with which ones were the most difficult and and how did you deal with us think what Justice Kennedy used to say in response to that question and something always comes in my head which when he was always ask what’s the hardest case what’s the most difficult case he’s always say the one I’m working on right now and I think that’s I think that’s or something to that which is every case you want to give it your all and you’re focused on the case you’re working on at that moment there are of course more responsive your question I think it would just in case settings correct he perhaps more directly responsive to your question of course think National Security cases are quite difficult and quite important because you know the significance of them but so to every case in fact on real people in the real world so I want to give every single case give it my all I don’t treat any case says a second-tier case I treat every case is the most important case and that’s why I think Justice Kennedy’s comments really does resonate me and does point out something which is too late again before you and that particular case that’s the most important case they’ll ever have probably there only case will ever have and it’s important that I treated as the most important case for me moment in time and while I’m deciding can you talk briefly a little about the process that you’ve undergone and appellate court will be a little different to Supreme Court level before you sit down with your clerks and sure and assign research them how do they frequently work with the other clerks compare notes do you do that with the other judges how was it usually work and how might that be different with the job you’re applying for I think there are similarities to the Supreme Court in terms of the process for my time clerking for justice Kennedy at least my experience there and seeing how it works now till in in in basic terms what I do is ice I read the briefs very carefully I have my clerks prepare binders many many binders of all the cases I need to read at all I like to know the law review articles and treatises on point I like to go back and see if there any historical materials that might be and they’re all in the binders then I’ll talk about it with the clerk’s I’ll have one Clark who’s handling it but sometimes talk about it with all the clerks about my tentative use the judges interesting we do not talk about the case ahead of time with each other the reason for that is we each want to come into the oral argument having formed our own tentative approaches and questions and not having been influenced by may be well this is what the judge thanks and so that was subtly influence you but if we come into the oral argument with three independent perspectives the practices been that’ll help us reach a more informed decision each of us will be prepared then at the poor are going to self so important we learn from the lawyers but we also learn from each other at the oral argument the questions assimilated the way this process works you hear the questions about other senators and in that Sparks thoughts for you to ask Shenzhen and other Senators asked questions so too for the judges then we conference right after oral argument and we give our tentative use and go around and debate and discuss and it’s very collegial and there’s a lot of fluidity in that discussion it’s not as it’s not it’s yours my position and that’s it it’s never for 12 years I’ve never been in a single conference or any judge has said anything like that rather it’s here’s what I’m thinking what are you thinking and we go around and go and Burns and then discussing reach a tentative resolution then we write it up one judge is assigned to draft up the opinion and writes that’s a intense process for me and I think for all judges of draft after draft after draft and I talk that to get it exactly right I wanted to be clear I wanted to be consistent with President I don’t want that I want the losing party think they’ve gotten a fair Shake on the affected parties to be able to understand it to be as clear as possible and that discipline of writing sometimes can since you you might have gotten it wrong when you first was thinking about it and sometimes you change something 180 sometimes we often will just shift your views but the writing is such a discipline that’s an important the whole thing is a process with three judges or 9 on the Supreme Court that is designed to make sure you get it right and so the collective decision making process combined with the discipline of preparing and the discipline of War argument the discipline of writing it out that’s why judges when they come here are very reluctant when they get a hypothetical to just give a one-off answer without going through that process process protects us as judges it protects the the people who are affected by our decisions so we are we love Frost that’s because we are used to process and process in our view helps with make better more informed decisions obviously the independence of the separation of powers what are at the issue here and most important questions I think you’ve been asked or are about that Senator Coons a night along with a few others travel to Southern Africa a few months ago we met there with the Constitutional Court South Africa at a time when just a few weeks before a month before they had ruled against sitting president expenditure of funds issue and if other things but rendered a decision against the president of country the executive that allowed the parliament them to go in and remove him and and we we talked about that and they and and marveled at how this country this country of South Africa had had such a a a a court that understood the role and how important it was to be completely in pendant of the executive one of the justices put it quite well he said we we can’t allow the executive to climb over the lectern as well there have to be some limits to executive power where is the head of the Executive Branch the president in our case cannot climb over the lectern and and in in in many cases we look just North Division for the past 37 years Robert Mugabe had over. Of time climbed over the lectern enough to put judges in place that would rule whatever he wanted and the genius of our system or separate powers and the independent Judiciary is said we can never allow that to happen and there have to be constraints and you mentioned some of them yesterday with regard to what constrains the president but but still the president has immense Powers largely because we have conceded Too Much from the article one branch to the article to Branch but when when we talk about Presidential Power now I was struck by conversation you had yesterday with Senator Feinstein I wanted to explore it a bit you mentioned as a point of Pride and I think it is a point of Pride that you had ruled in honden case after 9-11 this is one of the bodyguards or drivers for Osama Bin Laden it was an extremely unpopular decision but one to protect his constitutional rights and to ensure that that we just didn’t look and say here here’s something unpopular we can’t protect his rights yet when you were asked why you feel how you do now on the independent counsel statute you feel differently than you did in the 1990s and you mention to Senator Feingold that you feel differently because of 9/11 and that extensively the president needs to be given more rain I guess because he needed to focus on National Security issues but I’m trying to square that I I think that tell your explanation of how you ruled in Hodgdon case is admirable I’m not sure about your explanation with regard to giving the president more more lease or more 40 because of 9/11 squares with that can you shed some light that was simply a proposal in 2009 when President Obama was coming into office that for Congress to consider but there would be frozen signs of Congress did consider something like that about and it wasn’t immunity it was simply the timing of litigation the Clinton versus Jones scenario for example and it was something and ID based on my experience but Congress would of course consider the pros and cons the prince boiler emphasized there was no one’s Above the Law in the United States Constitution under the united in the United States government there is a question and that’s Federal of 69 of course but it’s also woven right into the text of the Constitution but there’s a question about timing for members of the military for example that’s why we defer have deferral for them but it was not a constitutional position so I really want to size that sent her that that was not a position of what I thought was required by the Constitution rather something to be studied as Congress studies things all the time to ensure the effective operation of the government under Hamden I do think some of that in your point about your trip some of the Great Moments and Supreme Court history have been those moments of judicial Independence in moments of political crisis the Youngstown Steel case we’re at war with Korea and the president seizes steel mills well well-intentioned because it’s well intention to serve the war effort for the court says it’s not consistent with law there for unlawful and court rules against President Truman we talked a lot about the United States vs Richard Nixon case the unanimous decision 1974 by Chief Justice Berger who has been appointed the Clinton versus Jones case itself was moment where the president of the United States was ruled against by the Supreme Court including two of his appointees the boo boo Madea and Honda on cases in the Supreme Court beforehand and came back to me or cases Marion bikes Justice Kennedy in 2008 ruling against President Bush Bloom the end versus bush in a wartime case and so to my Honda in case I do look at that as a case where the rule of law protects all who come in Court regardless of who you are and no one is above the law in the president is subject to many legal restraints and terms of the official capacity the war effort and I think my decisions have shown that Independence in in a audio by areas thanks to technology we struggle here in congress with striking a balance obviously between security and freedom between Innovation privacy we just had the the Facebook Hearing in this room along with the Commerce Committee and questioned Mark Zuckerberg on these issues that night to commented that with all of us question you out here at least five of us are our password for our email is password Nimble up here dealing with lot of these issues but the same applies to the court how does the court how will the court how would you as a Supreme Court Justice deal with these issues would you describe describe yourself as techno logical illiterate I know you’ve dealt with these issues on the DC circuit but balancing privacy and Innovation and security and freedom this is going to make up a big chunk of what the Supreme Court does over the coming months and years and I do think the technological developments going to be a huge issue for the Supreme Court over the next generation and chief justice Roberts has been a some of the key opinions the carpenter case most recently which was very important decision to Riley case before that and you see how he’s in this would not necessarily been predicted at the time of his 2005 hearing now he has focused and led the court in making sure the Fourth Amendment keeps abreast of technological developments and then there is opinions are very clear and specific impact of technology have on the 4th so I think the carpenter case explains that once upon a time if a piece of information of yours end up in the hands of the third party in the government got a third party that really wasn’t an any effect on you privacy but now when all of our data is in the hands of a business a third party in the government obtains all your data all your emails all your texts all your information or financial transactions your whole life in the hands of a data company in the government gets that your privacy is very well affected and that’s the the importance I think of the carpenter decision is that it recognizes that change and understanding of our understandings of privacy and I think going forward that’s going to be a critical a critical issue one of the cases I did write an opinion in GPS surveillance and putting a GPS tracker on your car and I wrote it opinion in the DC circuit where I recognized that putting a GPS tracker on your car wasn’t Invasion a new technology was an invasion of your property and the end and therefore was thing that violated the Fourth Amendment so Aiden was something that the Supreme Court then opinion by Justice Scalia adopted that approach to recognizing the GPS surveillance but I think going forward as I’ve said these are backward-looking hearing sometimes with the forward-looking question you ask cuz I think it’s very important one about the chain Fourth Amendment not doctrines of the change in technology that in turn requires us to understand it as we apply Fourth Amendment Doctrine going forward in 1st Amendment free-speech principles as well our conception of speech take account of the technological developments as well as one last question what is an independent Judiciary mean it in terms of their personal political or religious beliefs have you known good judges who are Republicans and differences are they viewed that way what about the Catholic or Mormon or Muslim or an atheist what what should be our approach to as well all judges are independent we don’t sit in separate caucus rooms we don’t sit on a sides of an aisle we are not Republican judges or Democratic judges we are are independent United States judges and so to with respect to religious places I’ve written we’re all equally American no matter what religion we are off we have no religion at all and so to his judges were equal United States judges no matter what religion we are and we see that right in the text of the Constitution that no religious test shall be imposed as a qualification for any office in the United States Senator Blumenthal good afternoon your honor and thank you welcome to your team thank you Center I want to first of all Thai up a cup of loose ends from yesterday I asked yesterday weather during your service in the Bush Administration you took the position that not all legal scholars believe Roe v Wade is settled law and where the Supreme Court could overrule it you said in fact that the Supreme Court could and you declined to say whether you would commit to saying that you would not vote to overturn Roe v Wade I believe thanks to that exchange that an email has now been made in which you took exactly that position and you argued in that email that row can be overturned my question to you is whether during that break did anyway suggest to you that I would ask about this email I think we took a break before I ask you my question did anyone ask you whether did anyone suggest you that I might ask about this during the break before the question just now know yesterday I’m not remembering I’m not remembering one way or another what did I I’m not remembering did anyone show you this email during the session yesterday at any point I got the check actually I don’t remember during each break yesterday I’ve had it I’ve had these emails I think and you review this one before you came testify I’m not I’m not going to remember Tara but I do know that that email does refer to what we eat my impression of what legal Scholars think it’s not I think the premise your question was respectfully well if I don’t if you don’t for somebody whether someone showed it to you or not I want to move on to another area you asked yesterday by Senator Harris as to whether you had certain conversations the special counsel investigation with anyone outside of the group of judges on the DC circuit at that point you’re an it was vague and it was again this morning when Senator hatch asked you about it so I want to ask you very specifically and he discuss the special counsel investigation with anyone outside of the group of inappropriate discussions with anyone of course it’s on the new had any discussions with anyone appropriate or inappropriate when you ever talked about the special counsel anyone outside the if you’re walking around in America it’s coming up Center of so people discuss it but in terms of I’ve never made any let me just finish by could I’ve never suggest anything about my views about anything commitments foreshadowing that no inappropriate discussions of course first of all let me tell you a few contacts in which I can come up our court house has a lot of activity going on in it because of that there a lot of well they are so those are discussions that will come up when I let me be more specific so that we sort of holding in on what my concern is if you ever talk to anybody in the White House about the special counsel investigation discussion with people in the White House about the no one including what do you mean by I guess I would just want to make sure that I’m understanding what your question is going for I have had no issues where I’ve discussed my views on any matters issues cases no hints previews for Cass no but have you ever talked about the special counsel investigation with Don mcgahn who is behind you or anyone else in the white house that’s a simple yes or no I’m not about not remembering any discussions like that of course in preparing for the prepared for questions you’re asking and they said it was her was her mood Court sessions where we have you had about special counsel with people in the White House not had discussion if I’m understanding your question correctly I haven’t had such discussions but I I want to make sure I understand your question correctly it’s pretty simple English have you talked about the special counsel with anyone in that was anybody who works for the present United States while you just rephrase the question though and that was about mr. Mueller this time and it was previously is about the investigation but I’ve hadn’t if I’m understanding the question correctly no discussions the kind you’re at all you’re saying no you had no discussions you haven’t talked to anyone in the white has about Robert Mueller for the special counsel investigation you change the question again Center of course I know from my prior experience in the way I haven’t seen him in a long time but I knew him when we work together in the administer the Bush Administration so but I’ve had no discussions of the kind that I think you’re asking about well I’m asking about the kind you’re thinking about not myself why haven’t any discussions of the kind I’m thinking about either well I’m going to take that as a no what you were giving under oath and we can put aside the humor for the moment and I’m not trying to be humorous I’m trying to be accurate and example of someone says your Courthouse no I’m talking with anybody who works for the president knighted states in the White House about the special counsel so far frankly your answer is been ambiguous I don’t think it’s been a Dodge the question you’ve ducked it it’s the same question again and again and again and I’m going to move on because I have other ground to cover okay if you had things about the special counsel investigation with anyone at the passwords Benson and Taurus form no I don’t remember anything like that are you acquainted with anyone at that form I know I used to work at the White House counsel’s office and I Now understand that he works at that law firm have you ever talk to him about the special counsel investigate know are you acquainted with Mark password I’m not are you acquainted with anyone else at the passwords Law Firm I don’t believe so but as I discussed with Center Harris last night I didn’t know for example Senator Lieberman worked at that firm and he spoke to the judges a couple years ago before this but that’s the kind of thing I was worried about when I was talking with Senator Harris last night is that I don’t have the full roster but I’m pretty confident the answer is no okay we’ve talked about the independence of the Judiciary and you have spoken compellingly about the importance of an independent Judiciary and I couldn’t agree more I think the heroes of this era will be the independent Judiciary in our Free Press I want to talk president Trump’s attacks on the Judiciary they have been blatant Craven and repeat it and I want it quote to you a couple of those I have teeth a partial quotation of them 41 tweets attacking the Judiciary but the one I want a site to you is from July 13th two 13 when he said of Justice Ruth Bader Ginsburg quote Justice Ginsburg of the United States Supreme Court has embarrassed all by making very dumb political statements help me her mind is shot resign! And of quote November 10th 2013 again speaking about Justice Ginsburg Supreme Court Justice Ruth Bader Ginsburg was going to apologize to me for her misconduct big mistake by an incompetent judge do you believe that Justice Ginsburg has quote embarrassed us all and quote Center of course spoke about all the justices individually during the course this hearing and mine I may interrupt denied say this with all due respect this is a question where less is more in the answer do you think Justice Ginsburg has embarrassed us all so I’m not going to get drawn into a political controversy outline of Maine and I’m not going to get within three ZIP codes of a political controversy here this is not political this is about Justice Ginsburg you believe that her quote mind is shot and quote so respectful you’re asking me to After High read those comments you’re asking me to comment on something another person said and I’m not going to do that I’ve got I’ve spoken about my roof believe that I spoke about being confident judge I spoke about my respect and appreciation for the eight justices on the Supreme Court my aunt dioner it would be if I were to be confirmed to be part of that team of nine with those eight people off whom I know and respect and I know they’re all dedicated serving soup given great deal to this country and so I have made that clear throughout this hearing you believe that a judge should be attacked based on his Heritage that just the the present United States attacked judge Gonzalo curiel saying that the judge quote the judge who happens to be We Believe Mexican in attacking him do you believe that it should be attack based on their Heritage Center again I’m not going to comment on turn about the Your Heroes and backbone to stand up and speak out we’re talking here about an independent Judiciary my colleagues have raised this point and I might just say to you as I said to judge Gorsuch then Gorsuch now Justice courses that the Judiciary and nominees like yourself have an obligation to stand up the Judiciary and he said that these attacks quote disheartening and demoralizing you agree so I’m not sure the circumstances but the way we stand up is by deciding cases and controversies independently without fear or favor beyond that we follow the cannons in the leadership of Chief Justice Roberts who is a superb leader of the American Judiciary in terms of maintaining the independence of the judicial and staying well clear fluid do something else then about the intersection of President Trump and yourself on the night of the announcement of your nomination you were at the White House and you chose to begin your speech introducing yourself to the American people by saying and I quote no president has ever consulted more widely or talked with more people more backgrounds to seek input about a supreme court nomination and quote what was the factual basis for that statement so I did think about that those were my words Center Harris ask me about that last night and the president and mrs. Trump when we were there and my family was there at the the night at the White House he was he in mrs. Trump were very gracious I was very impressed with during the 12-day. Between Justice Kennedy’s Service retirement and the announcement of my nomination I was impressed as a citizen as a judge with the thermos to the process and I did look into to your point directly in thought about and looked into comparing what I knew about past processes and made that comment and you look into past appointment did you talk to President Clinton about how many people he talked to before he not okay so last night I said to send her Harris that President Clinton I do recall and and talk to a lot of people as well and I indicated that’s why I use the front that just about everybody in Washington they in present talk to a lot of people as well and then so I said the senator Harris last night I mentioned President Clinton specifically as an indication of someone who likewise consulted very widely as I recalled and Vicky didn’t have any factual basis any record any research at the time of that statement did you but I did actually look into it as best I could you not thinking about the technological developments and I did think about it very carefully he talked to him number of people based on my understanding in those 12 days I want to talk to you now about real-world consequences that is impact in the real world on real people the decisions that courts make we were talking yesterday about the statement that you made in 7 Sky versus holder and I think we have it here under the Constitution essentially that statement says to me a present Candyman statue to be unconstitutional even if a court has held or would hold the statute constitutional now you stated yesterday to me when we talked at some length that your view was compelled by Heckler versus Cheney and other cases on prosecutorial discretion I disagree Heckler suggest that the president can essentially nullify simply emo law unilaterally unconstitutional based on his personal view of the Law’s constitutionality so Heather stands for the principle that courts will generally not second-guess the executive branch is decisions on how to use scares enforcement resources like I did as a US attorney or as Attorney General of my state of Connecticut nowhere says that Chief executives are free effectively to knowify Dooley pass statue that have been upheld by the court but I want to go the real world impact clearly Heckler doesn’t say that there are no limits but for the sake of real-world impact I think there must be impacts and one of them to fax the Affordable Care Act and the protections it provides to millions of Americans about 13 million Americans including 500,000 Connecticut who suffer from diabetes or high blood pressure or mental health issues there are 15 to 20 or more pre-existing conditions and send a fax a young man his name is Conor Curran he’s 8 years old he suffers from Duchene Muscular Dystrophy and I want to think about about Connor this is a chronic and terminal condition it was solely a road is motor function unless we fight pure eventually it will take his life his parents have told me and I’ve gotten to know his family pretty well although it appears healthy and happy today he will slowly lose his ability to run to walk even a hug them goodnight as Connor gets older he will need more and more Health he will need the Affordable Care Act more and more he will need protection from abuses that involved pre-existing condition my reading of your view of the Constitutional authority of Donald Trump is he could simply deem the Affordable Care Act unconstitutional even if it is upheld by the DC Circuit Court of Appeals and then bye United States Supreme Court and even though it has been signed by the president who deems it to be constitutional and passed by a congress who deem it to be Constitution you think the present United States has that unilateral Authority don’t know if I protection for Connor and should the Connor family be afraid Center thank you for bringing up this example in my opinions on the Affordable Care Act in the sisal case where I upheld the Affordable Care Act against an origination Clause Challenge and in the cell Sky case where I made clear that I thought the timing of the case was premature and both those decisions I express my respect for the Congressional goal in that legislation of ensuring health insurance for uninsured America in providing more affordable healthcare for all Americans to take care of people who didn’t have health insurance people who had conditions like the one you’re bringing out here I understand the real world impacts of the Affordable Care Act that made that clear in my decisions I’ve also. my decision on the Affordable Care Act and showing respect for the ACT and respect for congress respect for the law and an understanding of the real-world impact in terms of prosecutorial discretion the United States first Richard Nixon case did say that the executive branch has the exclusive Authority and absolute discretion whether to prosecute a case but I’m I’m just going to interrupt you because I’m out of time and if the chairman wants to give you more time more than happy to hear the rest of your answer but I just want to express to you my fear and my deep concern that you will not apply the law but use the law to advance and ideological position that may affect the people of America like Connor thank you to you before I go to Senator Craig gold 1 2 to the center I did you don’t have to respond what I’m going to say but I think that we need some clarification if you want to give it but only if you want to give it we’ve heard it suggested that you did not give clear testimony about the any relationship you might have with it with the various people in regard to the mall or investigation so have you made any free commitments or offered any hands previews forecast Winks nods or Diane shakes to the president the vice-president there White House lawyers anyone else in the administration or anyone at all about if and how you would rule on any matter related in any way to special counsel Robert Mueller’s current creation no I have not sent her grateful and thank you mr. Sherman and before I begin asking questions I like to follow up on that exact line in my hands of the story that was published two hours ago on CNBC headline says Trump lawyer Marc kasowitz denies ever spoke to anyone at the firm about Mueller probe discuss this in a little more detailed that I would like to ask unanimous consent that this report be put into the record thank you mr. chairman play some of the the legal parameters in which we work today with regard to the separation of powers I want to go back to the independent counsel vs. special counsel issue just one more time you’ll recall this yesterday in my question the differences between the independent counsel and special counsel the reason I’m coming back to it is I’m a little puzzled by my colleagues attacks on your writings about the Morrison case back in which was talking then about the 1988 case in which the Supreme Court upheld that then old independent Council system and I’ve concluded Maybe I’m Wrong concluded that the reason they keep bringing it up and bringing it up and bringing it up is that they may be trying to create some confusion between the old case the old system which you were criticizing which Justice Scalia criticized by I understand correctly Senator Durbin criticize and others did and the current system and I think I wonder if maybe they are trying to create an impression in the public that you were criticizing the current system so I just want to give you one more chance to make it clear in in your writings about the Morrison case or you criticizing the current special counsel system thank you sent her know I was not and I have tried to make clear to Senator Coons and you and otherwise that I have repeatedly discussed the special counsel system the tradition of that kind of system with approval in the Georgetown Law Journal article that I wrote In the late 1990s as well most recently in the PHH decision where I specifically distinguish that from the independence ansul system the old independent Council system and Morrison which dealt with it has not existed since 1999 the current special counsel system I’ve always spoken approvingly of the general system in the tradition of special counsel well thank you and I hope that puts it the rest like I said for several days now I’ve been perplexed as to why it is that you’re good as ISM of a system that ended in 1999 was done such concern and I hope that any confusion has been created by those consistent attacks doesn’t create and won’t create an impression that you were making any comment about our current situation so thank you for that what I like to do with the rest of the time I had is to go through some issues related to the separation of powers and I realize that you’ve been through this it may seem like endlessly in the last few days but I want to go back and first start with the notion of deference with r the rulemaking on the Chevron document could you just described to us what the Chevron Doctrine is yes that are what that says that Doctrine when Congress passes a statute and an inn administrative agency executive or independent agency is implementing that statute the agency’s interpretation of that statute will be upheld by a court so long as it’s a reasonable interpretation of any ambiguity or Gap that may exist in the statute if the agency’s interpreted interpreting in a way contrary to its language as interpreted by the tax structure history as reflectance Ron footnote 9 then it’s an impermissible interpretation but otherwise if it’s sent there’s an ambiguity or Gap in the interpretations reasonable the courts under the Chevron Doctrine uphold it and when you talk about interpreting the statue about agency room making ordinarily will be an eighth or typically it’ll be an agency rulemaking or least often Obion agency rulemaking and there is an exception correct for major cases or what what is the except 4 rules of major economic or social significance the Supreme Court has long made clear that the deference to the agencies will not apply in those cases in those cases we expect, in the words of the Supreme Court most recently in the uart case we expect Congress to speak clearly if it wants to assign rule-making on an issue of major economic or social significance to an agency and that’s a doctrine that Justice Breyer in the 1980s first talked about I believe actually Justice rehnquist in the 1980s decision as well talked about and those that Doctrine has been applied by the spring since the 1990s most recently in the king versus Burwell and you a RG decisions it seems to me that that’s a pretty broad or maybe narrow exception of what I mean is you’ll be fine how how does a judge how does a judge determine when you have a major circumstance that be impacted by the exception is is there a standard are there some rules of how a judge makes that determination decision that the Supreme Court is not as yet modded specific guidance and you look at the number of people affected the amount of money involved the kind of attention it’s received in Congress the kind of attention it’s received in the public and you make a judgement base whether this is the kind of role as Justice Breyer first explain it’s really filling a smaller the interstices of a statute or is a big social or economic decision and there’s lots of pictures you can look into dude determine that you received the questions that if the Congressional statute that is past is vague or broad that the room for agency discretion is greater does that play an impact their play a role in the determination as to whether it’s a major except that would require a deeper review by the court well that the question of ambiguity is something that applies and all these Chevron cases but I do think as well in the major rules situation Justice Scalia said for the Supreme Court in the uart case is if it’s a rule of major economic or social significance we expect Congress to speak clearly and that speak clearly phrase and Justice scalia’s opinion for the court is important another words we want to see an Express assignment of authority to decide am a major social or economic issue if that’s going to be upheld as a rule by the courts no thank you I that this issue is very important to me into the number of my colleagues because there’s a concern among many members of Congress that Congress has delegated too much of its responsibilities to the executive branch by giving them this and the broader and more vague the Congressional delegations are the the greater the opportunity for the executive to Simply right law through making and so it’s a very significant issue the other question I have is it and I know you’ve also been asked this earlier is there a point at which Congressional Delegation can be so Broad to be unconstitutional for example one of the cases are examples you were given earlier as if Congress just decided to create another group and say we’re going to have them big Congress now so the Supreme Court’s long applied to the nondelegation doctrine that allows broad delegate at least under the precedent but there is a limit to how brought those delegations can be and there are there is litigation in the federal courts now and Spring Court now about certain locations of the nondelegation doctrine but the general wall is that Congress can delegate probably but there are limits it has to be an intelligible principle is the phrase that the Supreme Court has used what that means and practice has been decided under a series of cases applying that principle overtime there’s precedent build on one another and that’s what the court applies to figure out whether a delegation is gone too far in this brings in the the issue of independent agencies as well and I know you’ve talked about it at that allowed as well Humphreys executor executor is the case that sets the standard correct as to what is an appropriate appropriately Constitution we created independent agency that that’s correct the 1935 decision and Humphreys executor upheld the concept of independent agencies where the heads of the agencies are removable only for cause not at will and the till we see agencies such as the ferc the Federal Communications Commission the SEC in the like you have ruled in the pcaob case that the creation of that independent agency was unconstitutional that particular in an agency was differently structure than the typical in traditional independent agencies I dissented in the DC circuit on the challenge to the constitutionality of that structure because it was two levels of calls removal in absence of the Supreme Court granted review opinion by Chief Justice Roberts they agree with the approach I’d set forth in absence in the dissent in the free enterprise fund versus cclb case in Chief Justice Roberts opinion for the court in that case in and what about the cfpb case I understand that you did not rule that the cfpb could be what was unconscious over unconstitutional that it would have to be eliminated but that its structure needed to be changed with regard to the president’s authority to replace the director could you first of all just describe your reasoning that case a little bit and I have one follow-up question on that that decision in my view followed from the pcaob case chief justice Roberts has written for the Supreme Court the cfpb was also structured currently from the traditional independent agency and the Supreme Court speaking through chief justice Roberts have made clear that independent agencies that were novel not historically rooted the structure where problem constitutionally and the single director had of an independent agency was something novel not something that had traditionally occurred in independent agencies so I felt under the precedent set forth by the Supreme Court in the freezer encased that was a problem but I did not say that the agency was invalid or could not continue to pursue its important functions regulatory functions for a consumer protection rather I said simply that the single director had of it had to be removable at will not for cause if car and I also make clear though Congress wanted to have a traditional multi-member independent agency Congress could have coarse change that structure that wanted important point questions that the agency would continue to operate there was another judge who did say that to do that floor the whole agency should stop cease operation I did not agree with that remedy cuz I did not think that was the proper remedy under the quartz presidents rabbit and constitutional problems been working since the creation of the cfpb to establish a board a balance board to run the cfpb which I think would have addressed the Constitutional issue that you found but the question I have is why did you choose the route that kept the agency operative rather than joining with the other judge to say that it had to see saw operating until it was fixed Center that’s a question of a Doctrine known as severability and that would that doctor means is suppose you have a law big law one provision of the law is unconstitutional what do you do as a court to strike down the entire law or you hold simply the one provision invalid and excise that provision from the law and the traditional approach is reflected perhaps best in Marbury versus Madison which found a section of the Judiciary Act of 1789 on jurisdiction of the Supreme Court of the courts to be unconstitutional and what are the core Duo Marbury vs. Madison did it strike down the entire Judiciary Act no exercise the one provision that was on gardening for so one provision that was unconstitutional and simply exercise that the truth approach to severability is ultimately one a congressional intent to try to figure out what Congress would have wanted in the statute but I’ve written about this both in cases and in articles that as a general in the proper approach for a quart is to try not to disturb more than is necessary of the work Congress has done and setting for the statute for a scheme there for several days I referred to a narrow severability is the norm and less Congress is specified a contrary intent or unless the whole wall just unless it just wouldn’t work otherwise I appreciate that explanation to create the full picture when we were talking about the Chevron Doctrine that’s a court made Doctrine with regard to deference on agency rule-making another interpretation of statutes the administrative procedures Act statutory requirement doesn’t it that requires the findings of fact that the agency makes in quasi-judicial proceedings to be honored if I got that right some deference that’s correct and the reason I bring that up is not so much because it said you usually created issue but because it just shows the broad parameter of the defference that either through Congress or through judicial precedent has been given to the executive branch in terms of what money was believe is equipped the equivalent of making Law And Justice Just as we don’t want you making law I personally don’t want to see the executive branch you are without involvement of Congress took Nex to the maximum extent possible and so these are issues that I just hope that you’ll pay attention to in terms of the appropriate establishment and president necessary for the kind of separate the powers in our constitutional system that we need to have as we move forward I’m not even asking you to comment on that I’m just making an observation I will add one comment which I do think it’s important when we do review adjudications which is another part of the butter the DC circuit so agency adjudications where for example it could be a Benefits case of some kind or a judication of an nlrb case that one we were does adjudication I do think it’s important that courts be aware of the importance of those cases for the individuals affected by those cases and to make sure that the adjudications are complying with the principles of American Jazz Hindu process that we expect in adjudication when someone’s life liberty or property is on the line and administrative adjudication and something I’ve written about in many of my cases to make sure that the proper kind of fact-finding is occurring even in the administrative adjudications well thank you I appreciate you making that I actually have pages of summaries of your adjudications on those kinds of issues and I will just make a conclusory statement there for the argument that you’re not watching out for the little guy or that you’re not making sure that the litigants in their engagement with executive agencies are protected people just have to read the cases I commend you for being very very careful attentive to making sure that the rights of individuals in agency adjudications are protected and honored last thing I’ll do with my two minutes is I want to talk to you about Western States issues senator got into this little bit yesterday I actually was surprised to hear him say thank you say 3 or 85% of Arizona was owned by the federal government I’m impressed I’m sorry for him but in Idaho it’s 63 the state is federal and we believe that gorgeous country weather is mountains rivers deserts fishing Mountain Recreation of all different kinds of the the environment that we have in Idaho is a wonderful place that’s one of the reasons people go there to live we are also very concerned about the management of that Federal and we want to make sure that the same time we protect and preserve this Heritage we also allow the people who live there to be able to have an ability to make a life to make a living and there’s an there’s a conflict there I don’t believe it’s in there reparable conflict in fact I believe it’s something we’re both strong economy and a strong environment can be achieved I’m not asking you to make any commitments about anything except I would like you to just acknowledge to me as you did butterflake that you understand we got some incredibly different types of issues in the west that relate to the differences in land ownership absolutely decisions cases like the Otay Mesa case cases like the Carpenters case to understand the situation with the West the land the designations of land not my job of course is a judge to make the policy decisions for those land or environmental regulations but it is my job to police the boundaries of what you have set forth in the statues in the make sure that the executive is not unilaterally riding lawn mower going Beyond what’s been authorized by Congress it’s also my job when constitutional boundaries are crossed in terms of action taken by the government with respect to land in Orlando owners to make sure that I’m enforcing the con to Schneider understand I hope my opinions demonstrate my understanding and appreciation for the importance of land and landowners in the western states and throughout the entire United States for that matter but I know how important is to you turn off light as well thank you very much thank you Center thank you mr. chairman the chairman asked and you responded that tell you had not engaged in any secret handshakes winks and no discussion relating to the Mueller investigation on the other hand your Minnesota law review article where and you said Congress should protect a sitting president from criminal or civil proceedings is a pretty big signal or notice to this president as far as I can see it is a very big blinking red lights I was also listening to the series of questions asked of you by Senator Blumenthal regarding the comments made by the president referencing judges is disagreeing with the president a concern to you and independent judge I have ruled in cases such as bahamdan case where that was a signature prosecution the butcher disagreeing with the president is not a concern to you is that what your responses I am saying that is a judge deciding cases or controversies I decide cases based on who has the better position I’ve done that for 12 years and I have a record to so that 307 opinions and 2000 cases when it’s not a case in front of you following the leader of the judicial canons The Following the Leader of Chief Justice Roberts who leads the federal Judiciary we stay out of politics we don’t comment on politics we don’t comment on comments made by politicians we stay out way away from politics is made by the president then just agreeing with him and he stayed the president makes is political to you and you will not respond thank you let me follow up with some questions that some of us had of you yesterday and last night yesterday evening Senator Tillis my right sweetheart I know and that’s the case that I discuss where the issue was rather the state of Hawaii to restrict those voting for offices of the officers of the office of Hawaiian Affairs which administer a certain land held in trust for native Hawaiians to only native is that how I felt so strongly about the importance of his trust obligations to the native Hawaiian Community the people of Hawaii the people of Hawaii voted to create the office of Hawaiian Affairs also known as oh ha in Ark institution is not just a law it is in our Constitution that we created the Office of Hawaiian Affairs in 1978 in answering Senator Tillis you describe the case by See Kai tunnel giving it a different and a grossly misleading spin what just said totally ignored and disparaged the trust obligation that the state had to native Hawaiians and this trust obligation lets us take to create the office of War ended bears and to decide who should be able to vote for the leaders of that office native Hawaiians you said the state for denied voting to people who are residents and citizens of Hawaii but we’re not of the correct correct race and therefore African-Americans and Latinos and Asian Americans and whites were barred from voting for that office you then miss state of the holding of rice Ricard tunnel you said quote the Supreme Court held that that was a straightforward violation of the four 15th Amendment of the US Constitution I’ll get to your statement later but my first question to you is do you think that Rice can be used to justify the argument that programs to buy that native Hawaiians are subject to strict scrutiny and of questionable validity under the Constitution as you noted in the email that I referred to last night Center and thank you for raising it in rice versus caetano Justice Kennedy wrote the opinion 4722 Supreme Court saying that the voting restriction in that case violated the Constitution to your question about I’m getting your question about the other question that was something I wrote in an email then and if if that issue came before me I would there’s been subsequent precedent that would be and I would have an open mind about how to apply the presence of the Supreme Court the strict scrutiny or intermediate scrutiny that would apply in a case like that and we consider the facts and circumstances another state action voting case come to you or you would apply rice but my question was with her or you would turn to rice for the proposition that the programs that benefit native Hawaiians should be subject to strict scrutiny because they are of questionable ability under the Constitution and I think that would be analyzed in the in the light of rice but in light of all the other presidents of the Supreme Court on programs that so Contracting programs and higher education programs which is set for the body of president under which programs like that would be analyzed and I would look at the specific program under the facts and arguments the Batcave considering the rice was the 15th Amendment case in your citing two other examples where other constitutional Provisions may come into play R I should be limited to a 15th amendment cases that is what the court decided perfect you answered last night that the case was decided under the Fourteenth and Fifteenth you said it was a straightforward violation of 14th and 15 amendments of the US Constitution that is not what the court did is that it’ll rated and I think you agree because somebody that’s that’s what you wanted the decision to be based on you wanted the right decision to me based on the Fourteenth and Fifteenth Amendments so that is not what they did so this reminds me of the criticism that was lodged against you in the US V Anthem case where the majority said that you apply the law as you want get to be not what it is a question to you is where in the rice Court’s opinion did the Court decide the case on Fourteenth Amendment grounds Fifteenth Amendment is that there can’t be restrictions on the Baseline asking you where in the decision does the court rely on the 14th Amendment you’re citing to the Fifteenth Amendment both restriction on voting on the basis of race the 15th Amendment explicitly this refers to voting that the Fourteenth Amendment of course supplies as I read the president to All State restrictions on the basis of will 14th Amendment mainly relies on one-man white ones well that’s a whole another line of cases but that is not what the court chose to decide basis decision on rice so I would expect someone is going to be on the Supreme Court be very very careful inciting president and to be very accurate in in saying what the court basis decision on and it is totally clear to me because you have not been able to cite to the opinion and rice says we are deciding this case based on the 14th Amendment they did not so that is very disturbing to me that you would cite that case for the proposition that it was based on the 14th Amendment wins it was not and you have been as I noted been criticized for citing laws as you wished it to be and not as it is let me go on to preschool chase the free exercise clause of the First Amendment ensures that each person has the freedom of conscience to pursue their own religious values these rights and where they would interfere with another’s ability to do the same however in recent years the wide range of individuals and institutions have received special dispensation to impose their beliefs and others and of course most notably this is the Hobby Lobby versus girl okay so a case that raise those kinds of issues came before you and the priest for and in that case one of the things you had to determine was whether there was a substantial burden on the employer’s and their employers their claim the act of filling out a form to let their insurance company and a health in the services know that they had a religious objection weren’t going to cover the contraception was overly burdensome and it wasn’t a priest who were providing the concert contraception coverage a third-party was and the priest weren’t focused forcing that third-party to cover birth control Congress was to the ACA and you’re just send you thought that was too much you said the employers religious exercise was substantially burdensome and that they could deny contraceptive-coverage to their employees so my question to you is do you believe that the freedom of religion clause supersedes other rights or no sir I made clear on that decision that the religious freedom restoration act as a three-part test for substantial burden I found that satisfied their based on the Hobby Lobby Preston which I was bound to follow in the Wheaton College II compelling interest I did find a compel interest there for the government and ensuring access and then the third prong is least restrictive means and I made clear there I decided we vasito Siegel’s law review article made clear the unduly burdensome so you determine that filling out a two-page form was Anjali some concluded that penalizing someone thousands and thousands of dollars for failing to fill out a form when they didn’t fill because of their religious beliefs what they could have been totally insulated from thousands and thousands of flies so the question became that’s the fines that was irrelevant the question was whether a two-page for I was overly burdensome and you determine it was overly burdensome so kind of device logic to me let me go onto what I would consider to be a related case which is Garza be hard and I would consider these two cases as being related because the first of all they are both cases about women’s reproductive freedom and II while you’re balancing so the parties involved in very different ways you come to different conclusions what’s similar is in both cases you ruled against the women and Garza V hargan then brought up before you argue that the government’s basically charade how to keep a young woman in custody until it was too late to get an abortion was not an undue burden on her rice so forcing her to remain and hhh’s custody and considering the parental consent case which was not the cases those are irrelevant and then priests for life you insisted that a government requirement that a religious employers filled out a short form declaring their objection to providing Healthcare was too much I’m a burden and in each case you reached your desired outcome which is against women’s Reproductive Rights and you ignore the common sense meaning of Burden by the way filling out the two-page form Jordy opinion did not consider that overly burden bring some and I really think that your conclusions that filling out this form is overly burdensome defy logic but it is logical in the sense that in both cases you were against women Reproductive Rights so how is it possible for me to draw any other conclusions that basically you really want to limit a woman’s Reproductive Rights so even though you is in Gage in a balancing test in the case of priests for Life filling out a two-page form was too much but in the case of Garza it was not too much to have this young woman Maine and custody and to be forces for your your concern to wait around for foster parents to be found Hobby Lobby in Wheaton College case the Wheaton College case had dealt with a form and so I followed as best I could the Wheaton College case the Supreme Court had enough I think it’s 6 2-3 vote I found two are granted an emergency injunction that case I tried my best to follow that President saying about falling president because did Sarah come into play as to which president to apply how to apply the president and what parts of the president’s you want to fly let me get to something that should be really simple I think you said yesterday that the korematsu have been over ended in trumpy Hawaii the Chief Justice real korematsu was Gravely wrong that day was decided has been overruled in the court of history and to be clear has no place in the law under the Constitution I’m just really curious is being overruled by the history of valid way to overrule a case I think what the what the Chief Justice was recognizing that case was the same thing the Supreme Court Justice Brennan had recognized the New York Times vs. Sullivan where he said the city an act of 1798 have been overruled in the court of History another word for wasn’t specific case that are rose but that it was important to the Supreme Court to none-the-less recognize that this law in the the Sedition Act in this press in the case of korematsu was no longer good law and due to note that and so the Chief Justice noted that in the trunk purses wife need very clear that korematsu have been wrongly decided it would be nice if the court of History can overrule cases but let me go on to trumpy Hawaii the Chief Justice declare that for matzo has nothing to do with case but Justice Sotomayor call the encoding her holding all the more troubling giving the star parallels between the reasoning of this case and that of korematsu V United States then she continued quote in korematsu the court gave a pass to an audience Gravely injuries ratio classes classification author by an executive order and the basis of the court involved until define national security threat to justifying exclusionary policy and sweeping proportion the case is very strong because in trumpy Hawaiian as it was in korematsu the president discriminated against the minority group on National Security grounds and in both cases the court didn’t question and obviously bogus justifications they did not in both cases go behind a bald-faced assertion by the president that this was based on National Security so where does this take reasoning take us because if the we can claim National Security as a shield against any challenge to his actions under what circumstances do you think Court based on the most recent case don’t be who I should have court look behind the president’s stay justification of National Security the Supreme Court’s made clear Center in a variety of cases that it will holds the executive branch to accountant National Security cases Lumidee adding case on 2008 the Youngstown case in 1952 the Honda in case so the the National Security is not a blank check for the president the Supreme Court has said Justice O’Connor riding in the Handi case and that’s an important principle under our constitution is that even in the context of War time the courts are not silence civil liberties are not silent in this particular case you’re raising chief justice Roberts concluded there was no violation in that case but the general principle that I think it’s important to reiterate is that were a nation of laws including the National Security contacts and that depressing the Supreme Court over the course of our history has recognized that the law flies even in Wartime and national-security iteration of an articulation of National Security to justify an executive order is Trump versus Hawaii the wreck was replete with references and statements that the president has made as to what his true intentions were that this was a Muslim band you talked about it during the campaign you talked about it after the camping heater the justice department until the justice department as president get me a Hitta nation of this band that was with Stan constitutional Challenge and so the most recent iteration is very concerning because it says to me that the president can say this is based on National Security and the Supreme Court made replaying that it would not look behind that articulation let me move on running out of time so I’ll be the Warren Court in 2017 you gave a tribute to the chief justice William rehnquist you explain that you chose the topic because it pains me you that many young lures and lost Dunes even Federalist Society types have little inner sense of the Jersey jurisprudence and importance of William rehnquist to Modern and then they went on vacay do not know about his role in turning the Supreme Court away from his 1960s Warren Court approach for the court and some cases has seemed to be simply enshrining his policy of use into the car tuition or so the critics charged and then you praise chief justice rehnquist because he righted the ship of constitutional jurisdiction what decisions of the Warren Court were you referring to as simply enshrining is policy views into the Constitution were you thinking about Brown were you thinking about loving were you thinking about any of the Warren Court decisions that created rights friend privacy rights as a whole array so which were the Warren Court decisions that you thought needed to be right at by the rehnquist court Darius were chief justice rehnquist had helped the court I think reach consensus or maybe a middle ground on areas such as criminal procedure that is religion clause cases identified all those in the speeches when he when he passed away and even before he passed away many of the justices who worked with them were very much praiseworthy of teacher Shrine quest for fiercely defending the independence of the Judiciary General kinds of cases particular cases Senator Kennedy asked his question will take a 30 minute dinner break I expect we’ll be back around 6:15 then and for senators will be able to ask questions Booker tell us hairs cornyn and several members have requested a third round after all questions are finished will then moved the Dirksen to 26 for the closed session chairman when I introduce the players earlier I did not see the three in the second row Mary Grace Shea and Kiki are in the second row they are all three eighth graders and Megan they are there getting an introduction to democracy mr. chairman cell it is noisy thank you mr. chairman welcome ladies you’ll get used to the yellow over 200 times in the last 3 days not really how democracy supposed to work I will repeat what I said yesterday I’m not going to ask you to give me a hint about how you might vote on the porch if you’re confirmed certainly don’t want you to violate the judicial canons of Ethics tonight I may have to gently interrupt you a few times move your mom or move me off yesterday you started to talk about Justice Harlan and his feeling about whether he should vote in a political election somehow we ran out of time and I thought I’d give you an opportunity to finish that thought thank you Center and one of the things that we have to do is judges as I’ve emphasized many times in this he I’ve maintained the independence of the federal Judiciary independence from politics in Independence from political influence or public pressure public influence and part of that part of the Cannons for federal judges Federal Judiciary is so we don’t attend political rallies we don’t we’re not allowed to donate to political campaigns support political candidates put bumper stickers on our cars signs and our yards and one of the things I decided we we are allowed technically to vote but one thing’s I decided after I voted in the first election and I read something about how the second Justice Harlan decided not to vote in elections cuz he thought that reinforce independent study felt as a judge and I thought about that and I decided to follow that weed I’m not saying my approaches right and other judges take a different approach on that and I’m fully respect that but for me it just felt more consist for me with the independence of the Judiciary not too I’m not to vote because I’ve always considered voting a sacred responsibility and one in which I think very deeply about the policies I’m supporting in the people I’m supporting and seemed almost as if I were taking policy views at least of myself into the voting booth and I didn’t want to do that as a judge so I decided to follow the lead of the second Justice Harlan I’ll be the first to say I’m not the second test is Harlan he was a great Justice on the Supreme Court and someone of course who I be if I were to be confirmed on her to be on that cord and following his lead last night you talked a little bit about your Outreach efforts to attract more women and minority law clerks would you quickly goes do that for me again I think I was getting coffee when you were talking about that they’re one of the issues in American society generally of course but also in the Judiciary in particular has send to Advanced door become the discriminatory history of the of the country and to help Advance the cause of women and minorities in the legal profession and one of the one of the areas where that’s revealed itself is law clerk hiring and one of the end that’s important cuz the lock we get forms for judges clerks each year and they’re there for just one year and then they turn over after the other like a team they turn over after the year and get a new team before the next year those lot Clark’s are among the best and brightest out of American law schools and they often will go on to a leadership position in the Congress or in the state legislatures or in the Judiciary or in the bar or public service and so those are important training positions for the Future Leaders of America and there’s been their words disparities when I came on the bench in the number of women and minorities so I decided to be very proactive about that there was a problem identified I decided to be proactive so women log clerk run time proud of it of my 48 law clerks and majority of them have been women and they are the best and brightest and one of them was just confirmed as a federal judge on the US court of appeals for the 11th circuit breaker brand then she was in my second class of clerk’s that’s important because my mom cuz I talked about my mom my mom was a Trailblazer in the lawn overcame barriers to help women achieve equality in the law and I want to do my part as well I’m not just because of her I would but she was an example to help achieve equality for all women to give them a equal place at the table and future opportunities I think I’ve I’ve helped one small I’m just one small piece so I don’t want to overdo it but I tried to be proactive about it and to make a difference so too so in 2009 or 2010 so after I was on the court for about 3 years there was hearing and I think of the House Appropriations Committee with to just as usually go up every year and talk about the Supreme Court budget and testify before the Appropriations Committee to get money to explain the need for money for the Supreme Court for following year and Justice Thomas And Justice Breyer were there that your neighbor asked about the seeming disparity with minority law clerks and general African-American wall Clark’s in particular and one of the things they said and they were talking about Supreme Court search for the Supreme Court Justices and one of the things they said was they hired from the lower Court’s from the courts of appeals and they pointed out that the pool in the courts of appeals was had the disparities and so they were depending on what the court of appeals did and end does I took that as a bit of a call to action to do something about it myself and what did you do I reached out initially the law Students Association at Yale law school email them and ask them if I could come talk to them they’ll Yale law schools have school that produces a lot of law clerk so I thought it’s my alma mater start there and I went and spoke to them but I did as I went and spoke to the group and I explained to them the importance of clerking I encourage them to clerk explains the history of the disparities then I gave them innocence but I thought we were tips about how to make yourself a better clerk like a coach tips to how to be a better clerk candidate classes to take for professors how to deal with professors I do think it helps I was uncertain frankly when I walked into the room how that would work and it worked great in terms of the reaction I got and also in terms of I think the real world result and the way I thought about is if I make even a difference for one Clark or one student it’s it’s worth it and I think I did for more and then I’ve kept it up year after year I’ve done it also where I teach at Harvard Law School and I’m proud of the the results I think I think it’s made again a small difference but it’s one person at a time one clerk at a time one student at a time and I think hopefully by talking about it in this form to encourage more efforts of that nature which are really just recruiting efforts and explanation for many of the students at law schools are first-generation professionals and don’t have the net Brooks necessarily that others do and 7 I know we could we could I can tell you enjoy talking about I could go for about 2 hours on that but yes Center I thank you for cutting me off have I know you’ve read an opinion before where you would you agree with the conclusion but but you don’t agree with the reasoning have you had that experience and I have now thank we all have hit here’s why I said can you tell me what in God’s name of number is Center there Supreme Court as I think you’re referring to Once use that term but it doesn’t use that term anymore for figuring out what otherwise unenumerated rights are protected by the Constitution of the United States what it refers to now is a test in the glucksburg case and Justice Kagan talked about this in her confirmation hearing when she was sitting in the seat the glucksburg case sets worth of test for under numerated right so we recognize that they’re rooted in history and why that matters I think to your point and deeply-rooted yes and is that is that those roots that are deep are those recent or deep that have been growing their along do you understand what I’m asking is it I fear I don’t know that’s my fault or can it be something that is it is a is a more right of contemporary Society so when the cord is referred to deeply rooted in history and tradition it is it has looks to history now how deep the history must be is I don’t think there’s a one-size-fits-all answer to that and how much contemporary practice matters that I also don’t think there’s a one-size-fits-all but the important thing is the court and again Justice Kagan emphasize this in her earrings at the Clarksburg means that the court is not simply doing what your role is which is to figure out the best policy and doesn’t trying it into the law in the constitution in the case of the court but rather is looking for as best I can object indicia of rights that are not explicitly a root enumerated in the Constitution but that are nonetheless protected the best example I think is the Pierce case Oregon passed a law saying that everyone in this in the 1920s saying that everyone in the state of Oregon every student had to attend a public school and could not attend a parochial or private school and parents who wanted to send their children to a Catholics or child to a Catholic School sued and argue that that vile the United States Constitution it made it to the Supreme Court the right in essence the claims right was the right of parents to direct the upbringing of their children by sending them to a private or Parochial School in the Supreme Court affirmed and recognized right under the United States Constitution even though now Mike the room of law or privacy or equal opportunity or personal responsibility how do you determine what valve use all Americans cherish how do 9 people determine what values all-americans cherish cherish enough to read into are to discover as result of the superior intellect of those 9 individuals isn’t part of the Constitution and has been there for a long time but most of us couldn’t see except the nine justices why I don’t think that’s the conception of the judicial role that the Supreme Court has articulated perception is important in in in in appreciation of government what I agree with you that the the values question is one that of course is first and foremost for Congress to figure out the policy state legislators judges federal judges the Supreme Court we’re not supposed to be I think consistent with your question simply importing our own values into the Constitution’s not just supposed to be 5 people 5 people like every other American we don’t have a charter to the create new rights just because we think they’re best rather we find them and has said that no disrespect but that vet five people whomever they may be on the United States Supreme Court can establish this value and then end it there their sense of morality or their value system is no better or worse than picking out picking the first five names in the Washington DC phonebook he did say that and I think what is a comment that I think is shared by the justices on the Supreme Court is reflected now in the in the Clarksburg task but I recognize that there it’s important to explain that to people so that people okay confused about our role or roll is rooted in law it’s rooted in precedent it’s rooted in not our values per se but the values reflected either in the Constitution or reflected in the legislation passed by Congress and I realize rare is what I’m just saying but it’s very important to to and would agree that that we have a privacy right we have search and seizure privacy is important but we also believe now that disclosure oil privacy isn’t autonomy privacy is important and it’s part of our Constitution and frankly I’m glad that it is but how it got their matters how it got their match it’s not just the end result leave that for a second I agree with her and and just kind of shift gears I’m just got a few minutes left I can tell from your testimony the last three days or two days that high school was those were formative years for you to Georgetown Preparatory School Georgetown Prep High School here it was very formative do you ever get in trouble did you were you more of a John-Boy Walton type for a Ferris Bueller type I love sports first and foremost I think that retarded school idol lot of friends I talked a lot about my friends and they’ve been here so is it was very formative and when I think back on it yes I played football and basketball my coach my football coach was named Jim Fagan and he’s a legendary football coach and so the last 8 weeks where I live bending over slightly different situation that I’ve been for the previous 53 years I’ve in terms of where I can go freely I’ve been working out on weekends at my old high school and running on the track and ran in I am out there is awesome to run into him he’s still helps out with the football team and he sent me a text three nights ago so it’s awesome alright let me your back straight that mystery man I’m just just in case this we have to have the time I’m going to reserve my two hours and 10 minutes I was to 2 minutes and 7 Seconds now see I was going to ask the judge if not him but any of his underage running buddies that ever tried to sneak a few beers pass Jesus or some like that nice, but I’m not going to go there well I for one am grateful for the Senators restraint and self-restraint just been remarkable those of us on the diets we’ve been able to come and go and tend to other business loan the way you’ve had to sit there for two full days and you’re not through yet but you’re getting close I think you said you were a couple marathons consider this about the 20-mile Mark we have hit the wall yes but but we’re getting getting closer I just want to say briefly that your conversation with Center to Kennedy it recruiting female law clerks and the importance of being proactive there reminds me of a conversation I had briefly before you and I met when I served on a state appeals court the Texas Supreme Court wear Ross Ohio law clerks in most often they would be female while clerks and I would ask some occasional why do you think it is that I end up hiring predominantly female walk Works she said it’s easier on her we’re smarter we work harder 30-minute break will be back about 6:15 and then Senator Booker to the Tilles Center Harris and I will ask questions before we go to the third roundJudge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, is entering the third day of his confirmation hearing before the Senate Judiciary Committee.
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