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Judge Kavanaugh's Second Day of Nomination Hearing; Kavanaugh, "No One Is Above The Law". Aired 10-10:30a ET

Aired September 5, 2018 - 10:00   ET



This whole document, through the separation of powers and the federalism, tilts toward liberty -- tilts toward liberty.



Now we've talked about your independence from a president. There's also the question of independence from the legislative branch; equally as important.

You're going to be asked about your personal views on a variety of topics and whether you believe various Supreme Court cases were correctly decided. Presumably this is because senators are going to try to predict how you'll rule in cases before you. The idea is that if you agree with your personal views on -- if they agree with your personal views on particular issues of morality or on Supreme Court precedent, they maybe would vote to confirm you. If not, they might not.

Of course, that's improper. Judges should never promise their future votes on -- on the bench in exchange for a senator's vote for them. If you answer these questions about your views on specific Supreme Court cases or public controversies of the day, you'd be showing the opposite of independence from the legislative branch.

Politicians can make promises about how they'll vote on issues, judges by the very nature of the job should never promise any outcome.

If a nominee answers these questions, it threatens the -- undermines judicial independence.

Of course, there may be times where it's appropriate to reconsider certain decisions, especially if more recent opinions have called into question the rationale of the original decisions.


GRASSLEY: So with this in mind, I'd like to explore the approach that you'd take toward Supreme Court precedent.

Could you tell us your views on the value of precedent? I think you've already done that, but if you want to expand on it, go ahead.

Have you ever followed precedent of the Supreme Court when doing so conflicted with your personal beliefs?

KAVANAUGH: My personal beliefs are not relevant to how I decide cases.

The -- the role of precedent in our system, which I said is rooted in Article III of the Constitution, it's not just a judicial policy.


The role of precedent's to ensure stability in the law, which is critically important.

It's also to ensure predictability of the law, people who order their fares (ph) around judicial decisions need to know that the law is predictable. Whether you're an individual or a business or a worker, you need to have predictability.

People rely on the decisions of the courts, and so reliance interests are critically important to consider as a matter of precedent. They are one of the reasons we have the system of precedent, so that people can rely on the decisions.

Precedent also reinforces the impartiality and independence of the judiciary. The people need to know in this country that the judges are independent, and that we're not making decisions based on policy views.

Part of that is to understand we're following a system of precedent, of what has been before. The court every time someone gets on, it's not just bouncing around to, "What do I think's best?" It's what's the precedent of the Supreme Court is always part of the analysis; an important part.

And for 12 years I've been applying precedent of the Supreme Court and of my court. Every day for 12 years I haven't been getting up saying, "How can I rewrite the law?" I've been getting up for 12 years every day saying, "OK, how can I apply this 4th Amendment precedent to this fact pattern that comes before me?" or, "How can I apply this 1st Amendment precedent to this fact pattern that comes before me?"

So precedent is the -- is the foundation of our system, it's part of the stability, it's ensuring predictability and it's -- and it's just foundational to the Constitution, as Article III and Federalist 78 make clear.


GRASSLEY: Now, you'll be asked by other members which Supreme Court precedents you like and don't like. But as you know, it's inappropriate for a nominee to -- to answer those questions.

And this refers to Justice Ginsburg. She said, quote, "A judge sworn to decide impartiality can offer no forecast, no hints, for that would show not only disregard for the specifics of a particular case, it would display disdain for the entire judicial process," end of quote.

The underlying reason for this, of course, is that making promises or giving hints undermines the very independence that we've discussed. Would you agree with that?

KAVANAUGH: I -- I do, Senator, Mr. Chairman.


And one of the things that I have to remember sitting in this seat is that this moment is a moment of judicial independence, with how I interact with this committee.

And what I've done in -- in each of the jobs I've had, and particularly as a judge over the last 12 years, but also in the executive branch, you always ask -- I always ask myself, and I tell people I'm working with that, "How has it been done before? How has it been done before?"

So as a judge, "How has it been done before?" is precedent, that's "How's it been done before?"

When I'm sitting here what did I do? I went and studied all the nominee precedents. I've studied -- I've read Thurgood Marshall's hearing and Justice Brennan's hearing and I've read the hearings of the eight justices currently sitting on the Supreme Court. It's what I call nominee precedent.


KAVANAUGH: And so all the nominees currently sitting on the Supreme Court, all the justices, have made clear a couple things.

First of all, they can't discuss cases or issues that might come before them. As Justice Ginsburg said, no hints, no forecasts, no previews.

That also means with respect to at least the vast body of Supreme Court precedent going back, you can't give a thumbs up or thumbs down on the case. That's Justice Kagan's formulation. She said repeatedly, "No thumbs up or thumbs down," when she was asked, "What do you think about this case? What do you think about that case?" I liked her formulation there: no thumbs up or thumbs down.

That nominee precedent, as I call it, is now, in my view, part of the independence of the judiciary. And that nominee precedent is something I need to adhere to when I am here as a nominee now, because that's one of my jobs here is not to advance my own interest, but to remember I'm a representative of the judiciary as a whole, and I have a responsibility to judicial independence right here, right now as a nominee.

So following that nominee precedent's going to be critical.

Now, there's an exception that the eight justices have drawn -- currently sitting on the court -- if you read all the hearings, for some older cases. And I'll be happy to -- some older cases, not -- where nominee precedent does allow the justices -- has allowed them to talk about a few older cases.

And again, why do we do this? Why is this nominee precedent there? When eight justices of the -- of widely ranging views do this, there must be a reason. The reason is judicial independence. What does that mean? It means two things in this context.

One, the litigants who come before us have to know we have an open mind, that we don't have a closed mind, that we haven't committed something in this process that is going to affect how we decide a case because we feel bound but we -- by what we promise to this committee. And believe me, judges do feel bound by what they said to this committee. So if I say something and the case comes before me five years from now, I'm going to feel morally bound by what I said here.

And if I've crossed the line of what I should say, then I'm not going to have an open mind in that case. That's -- that's a violation of judicial independence. Secondly, as Chief Justice Roberts described perhaps better than anyone, if I get in -- into some kind of process that appears to be a bargaining process where I say well, I'll agree with this decision in exchange for your vote -- it's never that explicit, but that's, as Chief Justice Roberts described it, that's kind of the -- what -- what -- what seems to be going on sometime.

Well that's a complete violation of judicial independence. Because then the judges aren't making their decisions based on their reading of the law, it's really -- as Chief Justice Roberts described it, it's the Senate or the Senate Judiciary Committee really sending a nominee as a delegate to the judiciary and really doing what the Senate Judiciary Committee thinks is the right thing to do.

Chief Justice Roberts explained very forcefully that doing that would be a violation of judicial independence. That nominee precedent weighs heavily on me as a nominee here. Because it's rooted in judicial independence and I've said repeatedly already that I'm going to be an independent judge. Well, I have to be an independent nominee as well, so I'm going to have to adhere to the lines drawn by those prior nominees, Mr. Chairman.

GRASSLEY: With only 25 seconds left, I'm going to reserve that time and go to Senator Feinstein.

FEINSTEIN: Thank you very much, Mr. Chairman. Good morning, Judge.

KAVANAUGH: Thank you.

FEINSTEIN: I'm sorry about the circumstances, but we'll get through it. I wanted to talk to you this morning about guns and go back to Roe v. Wade, if I might.

My office wrote the assault weapons legislation in 1993. It was law from '94 to 2004. And it essentially prohibited the transfer, sale and manufacture of assault weapons.

[10:10:00] It did not, at the time, affect possession. I happen to believe that it did work and that it was important.

And I've watched case after case -- and I think I mentioned earlier school shootings, which are just -- I -- I never thought this would happen in our country, that someone would bring a semiautomatic assault weapon into a school and just mow down children and staff.

And so I've been very interested in your thinking on assault weapons. You specifically argue that the D.C. assault weapons ban was unconstitutional and I think because you said these weapons were in common use.

What did you base your conclusion that assault weapons are in common use and what evidence or study did you use to do that?

KAVANAUGH: Thank you, Senator Feinstein, for the question. And I understand, of course, your role on that issue and your long leadership on that issue and appreciate that.

I faced a decision where, as in every other decision, just about, on the D.C. circuit, I had to follow precedent, precedent of the Supreme Court. I don't get to pick and choose which Supreme Court precedents I get to follow. I follow them all.

And so in the Second Amendment context the Supreme Court, in the Heller decision, written by Justice Scalia, had held that there was an individual right to keep and bear arms. And then in explaining what that meant and what exceptions would be allowed to that right, Justice Scalia's opinion for the court, in part three of the opinion, went through this does not mean that there's no gun regulation permissible.

So that was an important part of the opinion, part three of the Supreme Court's opinion, where it pre-identified a number of exceptions that would be allowed: Felony possession laws, concealed carry laws, possession of the mentally ill, possession of guns in schools, possession in certain kinds of buildings, he pre-identified that. As to the weapons, the way I understood what he said there and what was said in the McDonald case later was that dangerous and unusual weapons could be prohibited.

And what he referred to specifically is machine guns could be prohibited. So it's very important to recognize under the Heller decision machine guns can be prohibited. And machine...

FEINSTEIN: They -- they were in the Firearms Act, a long time ago.

KAVANAUGH: Yes, and that's...

FEINSTEIN: And have (ph) been prohibited.

KAVANAUGH: Yes, Senator. And Justice Scalia's opinion did not disturb that long-standing regulation -- in fact, specifically reaffirmed that machine guns could be prohibited. The court in Heller, the Supreme Court upheld -- or struck down a D.C. ban on handguns, most of which are semiautomatic... FEINSTEIN: I don't mean -- let me interrupt you because I don't -- I think we're on totally different wavelengths. I'm talking about your statement on common use, as common use being a justification. And assault weapons are not in common use.

KAVANAUGH: And Justice Scalia's opinion used that phrase, then I think the next sentence of the opinion talked about dangerous and unusual weapons and the court in Heller itself, the Supreme Court struck down a D.C. ban on handguns. Now most handguns are semiautomatic. That's something that not everyone appreciates. Most -- most -- most handguns are semiautomatic.

And the question came before us of semiautomatic rifles and the question was can you distinguish as a matter of precedent -- again, this is all about precedent for me, trying to read exactly the Supreme Court said and if you read the McDonald case -- and I concluded that it could not be distinguished, as a matter of law, semiautomatic rifles from -- from -- semiautomatic handguns -- and semiautomatic rifles are widely possessed in the United States.

There are millions and millions and millions...

FEINSTEIN: You're...

KAVANAUGH: ... of semiautomatic rifles that are possessed so that seemed to fit common use and not being an -- a dangerous and unusual weapon. That's -- that was the basis of my dissent. The -- in a nutshell, the basis my dissent was I was trying to follow strictly and carefully the Supreme Court precedent


And you -- you -- I know you've read the opinion...

FEINSTEIN: You're saying the numbers determine common use? Common use is an activity. It's not common storage or possession, it's use. So what you said was that these weapons are commonly used. They're not.

KAVANAUGH: They're widely possessed in the United States, Senator, and they are used and possessed.

But the question is, are they a dangerous and unusual? They're certainly dangerous. All weapons are dangerous. Are they unusual?

And given how prevalent they are in the United States, it seemed under Justice Scalia's test and if you look at the majority opinion at McDonald's, the same thing. I want to reiterate, the Supreme Court made clear that machine guns can be banned. Machine guns can be banned.

FEINSTEIN: Let me speak to you. I'm talking about the Heller case. Let me be specific, and you specifically argued that it was unconstitutional to defend assault weapons because they are -- to ban assault weapons because they are in common use. And that, I believe, was your dissent in the case. KAVANAUGH: Yes, and I was referring to some kinds of semiautomatic rifles that are banned by D.C. are in wide -- widely owned in the United States, and now seemed to be the test that the Supreme Court had set forth in the Heller and McDonald cases.

In other words, if a type of firearm is widely owned in the United States. Now, whether I agree with that test or not was not the issue before me. I have to follow the precedent of the Supreme Court as it's written, and that's what I tried to do in that case.

It's a very long opinion. I also made clear, Senator Feinstein, at the end of the opinion I am a native of this area. I'm a native of an urban suburban area where I grew up in a city plagued by gun violence and gang violence and drug violence. So I fully understand, as I explained in the opinion, the importance of this issue.

I specifically referenced that Police Chief Cathy Lanier's goals of reducing gang and gun violence was something I certainly applauded but that I had to follow the precedent of the Supreme Court in that case. And as I read it, that's what it said -- I'm sorry.

FEINSTEIN: How do reconcile what you've just said with the hundreds of school shooting using assault weapons that have taken place in recent history? How do you reconcile that?

KAVANAUGH: Senator, of course the violence in the schools is something we all detest and want to do something about, and there are lots of efforts, I know, underway to make schools safer. I know at my girls' school they do a lot of things now that are different than they did just a few years ago in terms of trying to harden the school and make it safer for everyone.

Guns, handguns, and semiautomatic rifles are weapons used for hunting and self defense, but as you say, Senator, you rightly say they're used in a lot of violent crime and cause a lot of deaths. Handguns are used in lots of crimes that result in death and so are semiautomatic rifles. That's one of the -- that's what makes this issue difficult.

As I said in the last two pages of my dissent in Heller, I fully understand that gang violence, gun violence, drug violence that has plagued various cities, including Washington, D.C. This was known as the murder capital of the world for awhile, this city, and that was a lot of handgun violence at the time.

And so, I understand the issue, but as a judge my job, as I saw it, was to follow the Second Amendment opinion of the Supreme Court whether I agreed with it or disagreed with it. At the end of the opinion, I cited Justice Kennedy's Texas versus Johnson quite, which I read yesterday as the guiding light for the lower court judges and all judges.

FEINSTEIN: Let me give you a couple of other quotes, because I'm going to change the subject. Do you agree with Justice O'Connor, that a woman's right to control her reproductive life impacts her ability to, quote, "participate equally in the economic and social life of the nation," end quote? KAVANAUGH: Well, as a general proposition, I understand the importance of the precedent set forth in Roe v. Wade. So Roe v. Wade held, of course, and it reaffirmed in Planned Parenthood versus Casey, that a woman has a constitutional right to obtain an abortion before viability subject to reasonable regulation by the state up to the point where that regulation constitutes an undue burden on the woman's right to obtain an abortion.


And one of the reasons for that holding, as explained by the court, in Roe and also in Planned Parenthood versus Casey more fully is along the lines of what you said, Senator Feinstein, about the quote from Justice O'Connor. That's one of the rationales that undergirds Roe v. Wade. It's one of the rationales that undergirds Planned Parenthood versus Casey.

FEINSTEIN: Well, let me give you another one, rationale. In the 1950s and '60s, the two decades before Roe, deaths from illegal abortions in this country ran between 200,000 and 1.2 million. That's according to the Guttmacher Institute.

So a lot of women died in that period. So the question comes, and you have said today -- not today, but it's been reported that you have said Roe is now settled law. The first question I have of you is what do you mean by settled law? I tried to ask earlier do you believe that it's correct law? Have your views on whether Roe is settled precedent or could be overturned, and has your views changed since you were in the Bush White House?

KAVANAUGH: Senator, I said that it's settled as a precedent of the Supreme Court entitled the respect under principles stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly reaffirmed in Planned Parenthood versus Casey in 1992.

And as you will (ph) recall, Senator, I know when that case came up, the Supreme Court didn't just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it.

And the joint opinion of Justice Kennedy, Justice O'Connor, and Justice Souter at great length went through those factors. That was the question presented in the case.

FEINSTEIN: Could I interrupt you to say, since you mentioned stare decisis, and I sat on nine of these hearings, and when the subject comes up, the person says, "I will follow stare decisis," and they get confirmed and then, of course, they don't.

So I think knowing going into it how you make a judgment on these issues is really important to our vote as to whether to support you or not because I don't want to go back to those death tolls in this country, and I truly believe that women should be able to control their own reproductive systems, within, obviously, some concern for a viable fetus.

KAVANAUGH: And I understand your point of view on that, Senator, and I understand how passionate and how deeply people feel about this issue. I understand the importance of the issue. I understand the -- the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision. I don't live in a bubble. I understand -- I live in the real world. I understand the importance of the issue. And..

FEINSTEIN: Well, my staff just passed me a note. Let me read it to you because I think it's a good -- have your views about whether Roe is settled precedent changed since you were in the Bush White House?


FEINSTEIN: Yes or no?

KAVANAUGH: Well, I'll tell you what my views -- I'm not sure what it's referring to about Bush White House, but I will tell you what my view right now is. Which is it's important precedent Supreme Court that's been reaffirmed many times, but then Planned -- and this is the point I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors. So Casey now becomes a precedent on precedent.

It's not as if it's just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors and decided to reaffirm it. That makes Casey a precedent on precedent.


Another example of that -- because you might say there are other cases like that -- is Miranda.

So Miranda's reaffirmed a lot but then in the Dickerson case in 2000, Chief Justice Rehnquist writes the opinion, considering the stare decisis factors and reaffirming Miranda, even though Chief Justice Rehnquist, by the way, had been a fervent critic of Miranda throughout his career, he decided that it had been settled too long, had been precedent too long and he reaffirmed it.


KAVANAUGH: So precedent on -- I'm sorry to interrupt.

FEINSTEIN: I'm sorry to interrupt.

KAVANAUGH: Thank you (ph).

FEINSTEIN: But I want to switch subjects and one last question. What would you say your position today is on a woman's right to choose?

KAVANAUGH: As a judge...

FEINSTEIN: As a judge. KAVANAUGH: As a judge, it is an important precedent of the Supreme Court. By it I mean Roe v. Wade and Planned Parenthood v. Casey; been reaffirmed many times. Casey is precedent on precedent, which itself is an important factor to remember. And I understand the significance of the issue, the jurisprudential issue and I understand the significance, as best I can -- I always try and I do here -- of the real world effects of that decision, as I try to do of all the decisions of my court and of the Supreme Court.

FEINSTEIN: Well, I thank you for that. Let's go to presidential power for a moment. You were part of Ken Starr's independent counsel team, which conducted a sweeping investigation into possible wrongdoing by President Clinton and the First Lady. At the time, you argued for aggressive questioning of the president. You did not take the position that President Clinton was immune from investigation.

Since then you have taken the opposite position. In fact, you have said that, and I quote, if the president were the sole subject of a criminal investigation, I would say no one should be investigating that at all. What did you mean by that and what are the circumstances where a sitting president could be subject to criminal investigation?

KAVANAUGH: And I appreciate the -- the sign there. The -- the -- so the last sign -- I should have mentioned while I was up. The Second Amendment sign actually had a brackets around part of my quote. And I'm not sure if it was the exact quote, but this -- this one I'll -- I just wanted to point that out because...

FEINSTEIN: Is this accurate?

KAVANAUGH: As a -- here's what I was saying, Senator. Let me explain it this way.


KAVANAUGH: The last one may or may not have been accurate, I just wanted to point that out for the record, it had brackets for my quote.

This one -- so what -- what -- what happens after the Starr investigation? Then I work five and a half years in the White House. So let me just give you, if I can, some context here. And -- and I'm going to get specifically to your question.

So I work in the independent counsel investigation and that is obviously difficult, controversial, a moment for our country that I wish hadn't happened.

We all wish it hadn't happened. And I reflect on that. I wrote a Georgetown University Law Journal article in '99 reflecting on some of my thoughts about that. This seems to be a tendency of mine to go through an experience, write an article reflecting on it.

And then I work in the Bush White House for five and half years and I write an article in the Minnesota Law Review, Senator Klobuchar, in 2009. When President Obama's in office, I should point out. And I reflected on a number of things I had learned working in the independent counsel office and then working in the White House. And I thought there were number of things Congress could take a look at that I had experienced. One of them was I proposed timelines for consideration of Judicial nominees. I proposed 180 day up or down vote for every judicial nominee. That was something that, from my experience, I thought would avoid controversy and have rules of the road set in advance and I proposed that specifically for Congress to consider.

Other aspects. I -- I -- I said...


KAVANAUGH: Another thing I proposed was for Congress to consider whether it should look at Clinton v. Jones or the principal Clinton v. Jones. So you call Clinton v. Johnson and said a president is subject to civil suit while in office, the Paula Jones suit. That was a controversial decision but the Supreme Court made clear at the end of the decision Congress could provide extra deferral of suits -- not immunity but deferral suits for presidents if Congress so wanted.

And so in the Minnesota Law Review article, I put out some ideas about whether Congress may want to think about that. And why did I do that?