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Kavanaugh's Supreme Court Hearing. Aired 11-11:30a ET

Aired September 4, 2018 - 11:00   ET



SEN. DIANNE FEINSTEIN, D-CA.: -- that nominated you, has said, "I will nominate someone who is anti-choice and pro-gun." And we believe what he said. We cannot find the documents that absolve from that conclusion. So what women have won through Roe and a host of privacy cases, to be able to control their own reproductive system, to have basic privacy rights, really extraordinarily important to this side of the aisle. And I hope the other side of the aisle as well.

Last year, you drafted a dissent in Garza v. Hargan. And that's a case where a young woman in Texas, I believe, was seeking an abortion. In that dissent, you argued that even though the young woman had complied with the Texas parental notification law and secured an approval from the judge, she should nevertheless -- nonetheless be barred.

In making your argument, you ignored, and I believe, mischaracterized Supreme Court precedent. You reasoned that Jane Doe should not be unable to exercise her right to choose because she did not have family and friends to make her decision. The argument rewrites Supreme Court precedent. And if adopted, we believe would require courts to determine whether a young woman had a sufficient support network when making her decision, even in cases where she has gone to court.

This reason, we believe, I believe, demonstrates that you are willing to disregard precedent. And if that's the case, because just saying something's settled law, it really is, is it correct law? The impact of overturning Roe is much broader than a woman's right to choose. It's about protecting the most personal decisions we all make from government intrusion.

Roe is one in a series of cases that upheld an individual's right to decide who to marry, it's not the governor's right -- the government's right; where to send your children to school, the government can't get involved; what kind of medical care you can receive at the end of life, as well as whether and when to have a family. And I deeply believe that all these cases serve as a bulwark of privacy rights that protect all Americans from overinvolvement of the government in their lives. And to me, that's extraordinarily important.

Next, I'd like to address the president's promise to appoint a nominee blessed by the NRA. In reviewing your judicial opinions and documents, it's pretty clear that your views go well beyond simply being pro-gun, and I'd like to straighten that out.

It's my understanding that during a lecture at Notre Dame Law School, you said you would be the, quote, "first to acknowledge that most other lower judges -- court judges have disagreed with your views on the Second Amendment." For example, in District of Columbia v. Heller, you wrote that unless guns were regulated either at the time the Constitution was written, or traditionally throughout history, they cannot be regulated now.

In your own words, gun laws are unconstitutional unless they are, quote, "traditional or common" in the United States. You concluded that banning assault weapons is unconstitutional because they have not historically been banned. And this logic means that even as weapons become more advanced and more dangerous, they cannot be regulated.

FEINSTEIN: Judge Easterbrook, as you know, a conservative judge from the Seventh Circuit, concluded that that reasoning was absurd, and he pointed out that a law's existence can't be the source of its own constitutional validity.

In fact, I'm left with the fact that your reasoning is far outside the mainstream of legal thought and that it surpasses the views of Justice Scalia, who was clearly a pro gun justice. Even Scalia understood that weapons that are like M16 rifles or weapons that are most useful in military service can in fact be regulated.


And there's no question that assault weapons like the AR-15 were specifically designed to be like the M16. The United States makes up 4 percent of the world wide population, but we own 42 percent of the world's guns.

Since 2012, when 20 first graders and six school employees were killed at Sandy Hook Elementary, there have been 273 school shootings. This is an average of five shootings every month and a total of 462 children, teenagers, teachers and staff shot and 152 killed.

I care a lot about this, I authored the assault weapons legislation that became law for 10 years, and I've seen the destruction. If the Supreme Court were to adopt your reasoning, I fear the number of victims would continue to grow and citizens would be rendered powerless in enacting sensible gun laws. So this is a big part of my very honest concern.

You're being nominated for a pivotal seat; it would likely be the deciding vote on fundamental issues. So during your time in the White House when you were staff secretary, some people regard it as kind of a monitor monitoring things going in and going out.

But I think it's much more. And you yourself have said that that's the period of my greatest growth, and so we try to look at it and the only way we can look at it is to understand the documents and it's very, very difficult.

I don't want to take too much time, but we -- we've heard a lot of noise. Behind the noise is really a very sincere belief that it is so important to keep in this country which is multi-ethnic, multi- religious, multi-economic, a court that really serves the people and serves this great democracy.

And that's my worry. That's my worry. So I look forward to your statement and answering the questions.

Thank you, Mr. Chairman.

GRASSLEY: Senator Hatch for 10 minutes.

HATCH: Well thank you, Mr. Chairman. I'd first like to thank you for your tremendous work in organizing this hearing. This has been the most thorough Supreme Court confirmation process that I've ever -- ever participated in.

We've received more than twice as many documents for Judge Kavanaugh as for any Supreme Court nominee in history. This is a -- this is a big deal. We have tens of thousands of pages of Judge Kavanaugh's opinions, speeches and other writings. This has been an exhaustive process and I want to thank you for your leadership on it.

Now, to our witness, Judge Kavanaugh, it's good to see you. Known you for a long time. This is my 15th and final Supreme Court confirmation hearing. I participated in the confirmation of every current justice on the court. I've participated in the confirmation of over half of all federal judges now serving in the federal system or who have ever served in the federal system.

I know a good nominee when I see one, and you are a great nominee -- I don't think there's any question about it. I've known you for a long time; I remember when you first came before this committee back in 2004 for your first confirmation hearing. I was the chairman of this committee at the time. I got to know you well. I was impressed by your intellect, your legal ability and your integrity -- all of which were very much notable. At only 39 years of age, you knew more about the law than most lawyers who have practiced for a lifetime. And you have been an outstanding judge.

[11:10:00] You have earned the -- the -- the respect of your colleagues. And you've earned the respect of the Supreme Court as well. As you know, the Supreme Court has adopted the positions in your opinions no less than 13 times.

That's -- that's something nobody can really argue against. You've authored landmark opinions on the separation of powers, administrative law and national security. You served as a mentor to dozens of clerks and hundreds of law students, male and female.

Your student -- some of whom did not share your philosophy -- your student reviews are off the charts favorable, even by those who may not have completely agreed with your philosophical approaches on some matters.

You volunteer in your community.

(UNKNOWN): With all due respect...

(CROSSTALK) HATCH: Mr. Chairman, I ask for order.

GRASSLEY: Yes, just go ahead.

HATCH: OK, you volunteer in the community, you coach youth basketball, you're the sort of person many of us would like to have as a friend and a colleague. You also apparently like to -- like to eat pasta with ketchup. But nobody's perfect.

Now this being politics and this being...


HATCH: ... this being a Supreme Court confirmation hearing, my Democratic colleagues actually...


HATCH: I've got to admit, that's -- this is...


HATCH: ... my Democratic colleagues can admit that you're actually a good judge and a good person as well. They have -- they have to turn the volume up to 11 and try to paint you as one of the four horseman of the apocalypse. Anyone who actually knows you knows that's ridiculous. And the American people will see soon enough that you are a smart, decent, normal person that just so happens to have been nominated to the highest court in our land.

So here are the facts. Judge Kavanaugh is one of the most distinguished judges -- Mr. Chairman, I think we ought to have this -- this loud mouth removed.


HATCH: I mean we don't -- we shouldn't have to put up with this kind of stuff.

PROTESTER: (OFF-MIKE) we need health care.

HATCH: I hope she's not a law student.

GRASSLEY: I -- now that we have quiet, I'd like to explain that I advised, year -- two years ago that at my hearings, I expected the police to do their job and I expect the committee to go on. But if you don't want to continue...

HATCH: No, I'm going to continue.

GRASSLEY: ... we'll -- OK, go ahead.

HATCH: OK. Here are the facts. Judge Kavanaugh's one of the most distinguished judges in the entire country. He has served for over 12 years now in the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit is often referred to as the... PROTESTER: Kavanaugh cannot be trusted...

HATCH: ... second highest court in the land, because it hears many critically important cases involving agency action and the separation of powers.


HATCH: During his time on the bench, Judge Kavanaugh has heard over 1,000 cases. He's written more than 300 opinions. His opinions span nearly 5,000 pages...

PROTESTER: (OFF-MIKE) Kavanaugh is...

HATCH: ... in length. What I -- what's remarkable about Judge Kavanaugh's judicial record is not just its length...

PROTESTER: (OFF-MIKE) Judge Kavanaugh...

HATCH: ... but its depth and its quality. Judge Kavanaugh has been a true thought leader. He's written powerful opinions on the separation of powers and administrative laws. He's shown that he brings a fair- minded approach to questions of criminal law and employment law. On almost every issue of consequence, Judge Kavanaugh has made a significant contribution to our nation's jurisprudence.

And he's won respect from both sides of the political spectrum. The committee has received letters from former clerks, former colleagues, former students, and former classmates, all as -- all attesting to Judge Kavanaugh's sterling character and qualifications, some of whom are Democrats. Eminent members of the Supreme Court Bar and legal academia have all written in strong support of Judge Kavanaugh's nomination.

The authors of these letters emphasize that they have different political views and that they do not agree on every subject, but to a person they speak of Judge Kavanaugh's integrity and judgment and they enthusiastically endorse his nomination. I'd like to highlight one letter in particular from 18 of Judge Kavanaugh's former women law clerks. That's all of his former women clerks, all of them, who were not precluded by their current or pending employment from signing the letter.

[11:15:00] They write that, quote, "Judge Kavanaugh has been one of the strongest advocates in the federal judiciary for women lawyers," unquote. They detail the mentoring and encouragement Judge Kavanaugh has given them in their careers, and they say that is -- it is, quote, "not an exaggeration to say that we would not be the professors, prosecutors, public officials, and appellate advocates we are today without his enthusiastic encouragement and unwavering support," unquote.

It bears emphasis that these former clerks span the political divide. A number went on to clerk for liberal justices. That itself shows you the high regard Judge Kavanaugh has across the ideological spectrum. Republican- and Democratic-appointed judges alike have hired his former clerks.

Judge Kavanaugh is no ideologue. He is no extremist. He is a highly respected, thoughtful, fair-minded judge who is well within the judicial mainstream. Look no further than the letter the committee received from over 40 members of the Supreme Court Bar supporting Judge Kavanaugh's nomination. Among the signers are people like -- like Lisa Blatt, Deanne Maynard, and Kathleen Sullivan.

These are nationally renowned attorneys who practice frequently before the Supreme Court and the Federal Courts of Appeals, and they are not conservatives. To the contrary, they are among the most prominent liberal attorneys at the Bar today and in the country. But they know Judge Kavanaugh, they know his work, they know his character, they know that he is an outstanding judge, and they know that he will make an outstanding justice.

If we could just get the politics out of this, I -- I think we could all agree that Judge Kavanaugh is an indisputably qualified nominee with strong backing in the legal community who is well within the judicial mainstream. Go ask anyone who practices regularly before the Supreme Court who doesn't have a partisan agenda and they'll tell you Judge Kavanaugh is exactly the kind of person we should have on the court or we should want on the court.

Indeed, no less than Bob Bennett -- Bill Clinton's personal lawyer during Clinton's presidency -- wrote to the committee urging support for Judge Kavanaugh's nomination. Here's what we -- here's what he intended to say, quote, "as a Washington attorney, I can attest to the high esteem in which the Bar holds Judge Kavanaugh. Lawyers love arguing before him, for good reason. Because they know he will approach every case with an open mind," unquote.

Then it continues, quote, "Brett is the most qualified person any Republican president could possibly have nominated. Were the Senate to fail to confirm Brett...


HATCH: ... it would not only mean passing up the opportunity to confirm a great jurist, but would also undermine civility in politics twice over. Just in playing politics with such an obviously qualified candidate, and then again in losing the opportunity to put such a strong advocate for decency and civility on our nation's highest court," unquote.

Again, this is President Clinton's personal lawyer during Clinton's presidency who litigated against Judge Kavanaugh. Those who know Judge Kavanaugh hold him in highest regard. This is true of both Republicans and Democrats. Unfortunately, we have all these interest groups screaming from the sidelines and putting pressure on my Democratic colleagues to make this hearing about politics, to make it about pretty much anything except Judge Kavanaugh and his qualifications.

We have folks who want to run for president, who want their moment in the spotlight, who want that coveted TV clip. Frankly, I wish we could drop all the -- drop all the nonsense. Judge Kavanaugh is unquestionable qualified, he's one of the most widely respected judges in the country, he's well within the judicial mainstream. Anyone who wants to argue otherwise wants to banish half the country from the mainstream.

So, Judge, I'm glad you're here today. I'm sorry you're going to have to go through some of -- some of this nonsense that's about to come your way, but I hope you do it well.

PROTESTER: Stop Kavanaugh.


HATCH: You're -- you're smart.

PROTESTER: Stop Kavanaugh...


HATCH: You're smart, and you're -- and you're a fundamentally decent, good person. Anyone who actually knows you knows that to be true.

(UNKNOWN): Why do they let them (ph)...


HATCH: Now Mr. -- Mr. Chairman, I don't know that the committee should have to put up with this type of insolence that's going on in this -- in this room today. And frankly, these people are so out of line they shouldn't even be allowed in the doggone room.

[11:20:00] But, Judge Kavanaugh, I'm proud of you. I know how good you are. I know you deserve this position. I'm proud of the president for nominating you, and frankly, I wish you the best because we're going to confirm you.

GRASSLEY: Out of courtesy to Ranking Member Feinstein, she wants to introduce people who are in the audience, and so she can take what time she wants right now.

FEINSTEIN: Thank you. I'll be very fast.

I'd like to recognize Marc Morial, the president of the National Urban League; Melanie Campbell, the president and CEO of the National Coalition on Black Civic Participation; Reverend Al Sharpton, the president of National Action Network; Vanita Gupta, president and CEO, Leadership Conference of Civil and Human Rights; Derrick Johnson, president and CEO, NAACP; Sherrilyn Ifill, president, NAACP, Legal Defense Fund; Kristen Clarke, president and executive director, Lawyers Committee for Civil Rights; and Fatima Goss Graves, president and CEO, National Women's Law Center.

I would also like to recognize Fred Guttenberg, the father of Jamie, one of 17 killed in the Parkland shooting; Kelly Gregory, former airman first class, single mother, business owner, living with stage IV metastatic breast cancer; Sarah McBride, an advocate for LGBT rights and protections for patients; Tia Nelis, who works on behalf of people with disabilities; Angel Young (ph), an enrolled member of the Standing Rock Lakota and a veteran; Kim Jorgensen Gane, who advocates for a woman's right to choose; Bobby Jenkins, a longtime resident of Randolph County, Georgia and a voting rights advocate; Carrie Chin (ph), who's been fighting for marriage benefits for same-sex couples; and Carlotta LaNier, a member of Little Rock Nine.

Thank you for this courtesy. I really appreciate it.


Senator -- Senator Leahy?

LEAHY: Hello. Thank you, Mr. Chairman, and I was perfectly happy to yield to Senator Feinstein for that.

Mr. -- Mr. Chairman, in the last few minutes, we've heard a lot of rhetoric. I think it might serve the committee well to have some reality.

I've served in the Senate for 44 years; during that span, been able to vote on 19 nominations to the Supreme Court. I mention this because I have a sense of history, and I've never seen in that 44 years so much at stake with a single seat, but I've also never seen such a dangerous rush to fill it.

President Trump promised he -- he would only nominate judges to the Supreme Court who would overturn Roe v. Wade; judges who would dismantle the Affordable Care Act; judges who would reshape our judiciary. Now, if that's not judicial activism, I don't know what is.

And Judge Kavanaugh, with your nomination, the president has made it very clear that he's following through on his promises, and many of us feel he is. It seems that you have made -- you may have intrigued him for another reason -- your expansive view of executive power and executive immunity. You've taken the unorthodox position that presidents should not be burdened with a criminal or civil investigation while in office. This is for a -- now we have a president who has declared in the last 24 hours that the Department of Justice shouldn't prosecute Republicans.

You know, it's -- it's Alice in Wonderland, and I find it difficult to imagine that your views on this subject escape the attention of President Trump, who seems increasingly fixated on his own ballooning legal jeopardy. When questioning you about these concerns, we'll certainly look to your record on the bench. All of us, Republicans, Democrats, agree that we should. Indeed, your 12 years on the D.C. Circuit Court of Appeals will loom large during these hearings.

But the unknown looms even larger. Before sitting on the bench, you were a political operative involved in the most political and partisan controversies of our time. During this time, you shared your personal view on contentious issues without regard to restrictions imposed by precedent or stare decisis, and it's precisely those views that are being hidden from us today.

[11:25:00] The Judiciary Committee's Supreme Court hearings are meant to be an unsparing examination of a nominee to a lifetime appointment to our highest court. They're intended to give the American people -- all, all, all the American people -- a genuine opportunity to scrutinize a nominee's judicial philosophy, beliefs, and character because, if confirmed with the stroke of a pen, a nominee may impact their lives for a generation or more.

And how far we've fallen. Judge Kavanaugh, there are so many things wrong with this committee's vetting of your record. It's hard to know where to begin.

I've been on this committee under both Republican and Democratic leadership. I never thought the committee would sink to this. In fact, you shouldn't be sitting in front of us today. You should be sitting in front of us only after we've completed a review of your record. Your vetting is less than 10 percent complete. In critical ways, our committee is abandoning its tradition of exhaustively vetting Supreme Court nominees.

First, inexplicably, our Republican friends refused to request records from your three years as White House staff secretary, even though you described those as the most formative for you as a judge when you provided advice on any issue that may cross the president's desk.

Now, we know those issues include abortion, same-sex marriage, and torture -- and torture. But six weeks ago, Senate Republicans huddled in a private meeting with the White House counsel, who is here today, and hours later, the American people were told those records would be off-limits.

Then second, in a stark departure from committee precedent, certainly the committee precedent I've seen for 44 years, Chairman Grassley sent a partisan records request to the National Archives. Not only did it omit all one million records from your three years as staff secretary, it did not even request a privilege log. That means this committee's in the dark as to what specific documents are being withheld, and why. We don't even know what is being hidden. Such a move is simply incompatible with transparency.

Then third, the Archives told us it could not even produce this partial records request until the end of October. That's the nonpartisan Archives. Surely, I would...

PROTESTER: ... sorry, Senator Leahy, but I had to leave the state of Missouri to seek my abortion. You're going to have to -- more women are going to be sent to back alley abortions...



LEAHY: ... so, Chairman, I do not continue. I do not intend, at any point, to continue what I have to say with such interruptions. I don't care whose side they're on.

Now, the archives have said they could not produce this partial records request until the end of October.

Surely I would think that the United States Senate could wait until then, even if it means a Supreme Court with eight justices for a short time.

After all, Senate Republicans established a tradition of having just eight judges -- eight -- eight justices. They did that with their treatment of Chief Judge Merrick Garland.

They showed they were willing to have patience with filling Supreme Court vacancies when, the first time ever, they refuse to have a vote on a Supreme Court nominee, either up or down, during a presidential election year.

And I've been here when they have had, in the past, such votes.

But Republicans have instead (ph) cast aside the archives. They swapped the nonpartisan review process -- used for every nominee since Watergate -- for a partisan one.

And I think you only have to look at Watergate to see why we have that nonpartisan process. It's followed by every nomination since Watergate until today.

And my question still recurs.