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Neil Gorsuch Confirmation Hearing Continues; Trump Meets with Lawmakers. Aired 12-12:30p ET

Aired March 21, 2017 - 12:00   ET


SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: They want us to engage, to eliminate if possible, but if not, to fix. DOD, not DOJ, has the lead, which may be what led to DOJ L.A.'s (ph) confusion.


But the key point for us is that we have green light to engage on Graham."

And what I was trying to do was preserve the combat status review tribunal concept of the ARB, Administrative Review Board, concept and allow the courts to judge the work product at the D.C. Circuit Court of Appeals. They have judicial review, but let the CSRT go first. Do you remember that?


GRAHAM: OK. And it was settled in the Congress for the combat status review tribunal would have the first shot at determining whether somebody is an enemy combatant and the D.C. Circuit Court of Appeals could review their work product, see if it was capricious or arbitrary, if it made sense. The Supreme Court (inaudible) struck that down, saying it was not an adequate substitute for habeas. Is that correct?

GORSUCH: That's absolutely correct, Senator.

GRAHAM: And your role in all this was try to find out a way to engage Congress on the Detainee Treatment Act because it was your view that Congress being involved would strengthen the president's hand.

GORSUCH: As a lawyer?


GORSUCH: I was not a policymaker. But I did advise, as did many others. There were many other very fine lawyers too, Senator, who advised the administration that engaging Congress would be a good idea because we had read our Youngstown and our Justice Jackson.

GRAHAM: Any lawyer, I think, who understands this area of the law would suggest the president's stronger when he has congressional support.

The signing statement. Is it fair to say there was a conflict between the vice president's office and other parts of the Bush administration about what this signing statement should say or look like?

GORSUCH: That's my recollection and that's about all I can recall.

GRAHAM: I remember it very well because Vice President Cheney's signing statement was going to be we have an authority -- inherent authority to do whatever we think we need to do. And there were a lot of other people saying no, you don't have the authority just to set aside a law, you have to have a reason to object to it.

So, I just want the public to understand that when it comes to this man, I've seen him in action in very complicated, emotional matters, where he had one group of people who could give a damn about the terrorist and the other group of people that wanted to criminalize what I thought was a real world fight and we tried to find that middle ground.

And in a 5-4 decision, the Supreme Court struck down my proposal and we fixed it later, with a huge bipartisan vote, so that every enemy combatant today has a habeas proceeding, where the government has to prove by preponderance of the evidence you're in fact an enemy combatant. And if they reach that conclusion, you can be held under the law of war as long as you're a threat to our nation. Is that a fair summary of where we're at?

GORSUCH: That's my understanding, Senator. Along the way, we -- your legislation did prevail in the D.C. Circuit and the Supreme Court. Of course, it was a close call, it was 5-4 as I recall.

GRAHAM: Yes, and that just proves that five people can be wrong.


So, while I disagree, I certainly respect the court's decision.

GORSUCH: You're not going to get me to commit on that one either.

GRAHAM: Don't worry, I'm not even going to -- not even going to try.

The bottom line here is there will be more legislation coming or regarding the role of the government in gathering information. But from sort of a civics point of view, which Senator Sasse is going to take you through, there's a difference between the law of war and domestic criminal law. Do you agree with that?

GORSUCH: Yes, Senator.

GRAHAM: That a common criminal -- the goal of the law is to prosecute a crime that one individual or group committed against another individual or groups. That's correct?

GORSUCH: That's right.

GRAHAM: The law of war is about winning the war.

GORSUCH: Well, Senator, there are...

GRAHAM: How you fight the war.

GORSUCH: There are, as you know, rules about that, too.

GRAHAM: Right.

GORSUCH: Laws about that.

GRAHAM: Yeah. And we're fighting an enemy who has no rules, that would do anything -- and I've always been in the camp that I don't want to be like them. I think that's our weakness and the strongest thing we can do is stand up for a process that's stood the test of time, which is intelligence gathering in a humane way. Because they would cut our heads off doesn't make us weak because we won't cut their heads off. It actually makes us stronger over the arch of time, so that's my commercial about that.

So, there will be more litigation and there are no bad guys or girls when it comes to challenging precedent. Do you agree with that, people have the right to do that?

GORSUCH: To challenge precedent?


GORSUCH: Every person is allowed to come to court to bring whatever claim they have. That's how our system works.

GRAHAM: That's how Brown v. Board of Education came about.

GORSUCH: You're exactly right, Senator.

GRAHAM: OK. Let's talk about Roe v. Wade.

What is the holding of Roe v. Wade, in 30 seconds?


GORSUCH: The holding of Roe v. Wade in 30 seconds, Senator, is that a woman has a right to an abortion. It developed a trimester scheme in Roe that specified when the state interests and when the women's interests tend to prevail.

GRAHAM: OK. So let me just break it down.

The court said that there's a right to privacy, that the government can't interfere with that right in the first trimester. Beyond the first trimester, the government has more interest as the baby develops, is that fair to say?

GORSUCH: That was -- that was the scheme set forth.

GRAHAM: And I think medical viability was the test that the court used.

GORSUCH: Well, that's the test that the court came around and applied in Casey in 1992. GRAHAM: OK.

GORSUCH: So viability became more of the touchstone rather than a rigid...

GRAHAM: Is it fair to say that medical viability 1992 may be different than it is in 2022 medically?

GORSUCH: Senator, I'm not a scientist or a doctor.

GRAHAM: I would suggest that medical viability may change as science progresses. So you may have people coming in and saying, "In light of scientific medical changes, let's look at when medical viability occurs." That's one example of litigation that may come before you. I have legislation that says at 20 weeks, the unborn child is able to feel excruciating pain and the theory of the legislation is that the state has a compelling interest to protect an unborn child from excruciating pain which is caused by an abortion. I'm not asking you to agree with my legislation, I am saying that I am developing -- we're one of seven nations that allow wholesale, on-demand, unlimited abortion at 20 weeks, the fifth month of pregnancy. I'd like to get out of that club, but we're going to have a debate in this body and the House about whether or not we want to change the law to give an unborn child protection against excruciating pain at 20 weeks because you can -- the standard medically is that if you operate on unborn child at 20 weeks, the medical protocols are such that you have to provide anesthesia because you don't want to hurt the child in the process of trying to save the child.

So medical practice is such that when you operate on an unborn child at 20 weeks, which you can do, you have to apply anesthesia. And my theory is, well let's just look at it the other way, should you allow an abortion on demand of a child that can feel excruciating pain? Is that what we want to be as a nation? Does that run afoul of Roe v. Wade? I'm going to make the argument that there's a compelling state interest at that stage in the pregnancy to protect the child against death that is going to be excruciatingly painful.

You don't have to say a word. I'm just letting everybody know that if this legislation passes, it will be challenged before you and you'll have to look at a new theory on how the state could protect the unborn. And here's what I think. You'll read the briefs, look at the facts and make a decision. Am I fair to conclude that?

GORSUCH: Senator, I can promise you no more than that and I guarantee no less than that in every single case that comes before me no matter what the subject matter.

GRAHAM: Well, this is a real world situation that may develop over time because 70-something percent of the American people side with me on the idea that at 20 weeks, we should not be in the club of seven nations that allow abortion on demand because that's in the fifth month and that doesn't make us a better nation. There'll be people on the other side saying "No, that's an erosion of Roe," and it will go to the court maybe, if it ever passes here. And the only reason I mention this is that everybody who wants to challenge whatever in court deserves a person like you. A person like you, no matter what pressures are applied to you, will say over and over again, "I want to hear what both sides have to say, I want to read their legal arguments, look at the facts and I will decide." That to me is reassuring and that's exactly the same answer I got from Sotomayor and Kagan.

No more, no less and we can talk forever about what you may or may not do. If you do anything different than that, I think you'd be unworthy of the job.

GRAHAM: Now, about what's going on in the country with President Trump, whether you like him or you don't, he is president. But you have said several times that he is not above the law as president. Is that correct?

GORSUCH: Yes, Senator.

GRAHAM: You told Senator Leahy if there was a law passed that a Muslim could not serve in the military, you believe based on current law, that would be an illegal act.

GORSUCH: Senator, yes. I -- I see that having all sorts of constitutional problems under current law.

GRAHAM: So if we have laws on the book that prevent waterboarding, do you agree with me that the Detainee Treatment Act prevents waterboarding?

GORSUCH: Yes, Senator. That's my -- my -- my recollection of it.

GRAHAM: So, in case President Trump is watching, which he may very well be -- one, you did a very good job picking Judge Gorsuch. Number two...


Here's the bad part.


If you start water boarding people, you may get impeached. Is that a fair summary?

GORSUCH: Senator, the impeachment power belongs to this body.

GRAHAM: OK. That's even better. Would he be subject to prosecution?

GORSUCH: Senator, I'm not going to speculate.

GRAHAM: But he's not above the law?

GORSUCH: No man is above the law.

GRAHAM: OK. GORSUCH: No man. GRAHAM: Thank you. I think you're a man of the law and I really want to congratulate the president to pick you. Quite frankly, I was worried about who he'd pick, maybe somebody on TV.


But President Trump could not have done better in choosing you and I hope people on the other side will understand that you may not like him. I certainly didn't agree with President Obama, but I understood why he picked Sotomayor and Kagan and I hope you can understand why President Trump picked Neil Gorsuch. I hope you'll be happy with that because I am.

GORSUCH: Thank you, Senator.

GRASSLEY: We will recess until 12:45.

WOLF BLITZER, CNN ANCHOR: All right, the first round of confirmation hearings for Federal Judge Neil Gorsuch. Five of the 20 U.S. senators already have asked questions. Each getting a half an hour. Fifteen more senators are going to go in this first round, then tomorrow round two, 20 minutes each. So far he has been in the hot seat.

Let's get some analysis, some reaction. Jeffrey Toobin, you're our Supreme Court expert. How did he do?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I would say the seat is warmish at top -- it's -- he's doing very well. I think he's charming. He's folksy. He is abiding by the so-called Ginsburg rule, which means he is not answering questions much at all. But, you know, he's demonstrating that he knows a lot of constitutional law. He's demonstrating that he knows the facts of a lot of these detainees issues from when he was in the Bush administration, better than Dianne Feinstein, who tried to question him about that. And in a judiciary committee, in a Senate with a majority of Republicans, he's doing fine.

BLITZER: Joan Biskupic?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Well, he said he'd stand up to President Trump if he had to. He demonstrated to the Senate -- the skeptics about whether he would, you know, answer whatever he would say on Roe v. Wade. He said if the president asked me ahead of time to promise I would -- how I would vote on Roe v. Wade, the abortion rights decision, I would have walked out. I don't know how convinced some Democrats would be to that statement, but there were several questions about the independence of this nominee to the man who nominated him, and he over and over said, look at my record. I have ruled against government at various times, and I would continue to do it again.

BLITZER: But, Gloria Borger, he did say that he only met the president once when he interviewed him to become the Supreme Court nominee, and the president did not ask him if he would try to overturn Roe v. Wade. He -- what would you have done if he would have? He said, I would have walked out of the room. That was a pretty strong statement. GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Yes. Yes, it was a very

strong statement. And, you know, I think what he -- what he did today was, as Jeffrey is saying and Joan is saying, tried not to answer the questions that could come before the court. On the issue of religious freedom, however, and the famous Hobby Lobby case in which he did join an opinion on it, you know, he made very clear that he believes that religious freedom is one of the tenants of this country, and that he believes that was what applied in that case. When he was asked about the Muslim ban, however, the so-called Muslim ban, he would not -- he would not talk about the travel ban because he said he might have to rule on it.

He also dodged on Judge Garland, who he said is a very close friend of his, but wouldn't enter into the fray about whether the Republicans had done the right thing in denying Garland even a hearing or a vote. So very, very careful today and seemed to do well (INAUDIBLE).

[12:15:15] UNIDENTIFIED MALE: I think this really show the --

BLITZER: Yes, hold on one second. I just want to get John and then we're going to come to the partisans in just -- in just a moment.

But, John, go ahead, give me your analysis, because there are 52 Republicans in the Senate. He needs confirmation of 51. Then he's confirmed. Unless the Republicans decide to change the rules and go with -- if there's a filibuster, the Republicans change the rules, it will still be a simple majority, but that would be a pretty dramatic development.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Yes, Leader McConnell has said he would do that if necessary. He's an institutionalist. He does not want to do that. This is really going to be an interesting test of the Democrats because we're just through the morning. We have a long way to go today and tomorrow. But the Democrats have not even bruised, blemished anything to this judge so far.

They're trying to score their points. They're asking pretty predictable -- I'm not saying it's wrong to ask predictable questions, but they're asking questions along where they want to go. He has poise. To Jeffrey's point, he knows the law. He knows what he's doing. If you want to view this transactionally, the president of the United States had a very bad day yesterday. Today, his Supreme Court nominee has had a very good first morning in the chair questioning. And while we've been watching that, we also know some skeptical House Republicans have moved the leadership way and the president's way on health care. So this day for the president so far, a whole lot better than yesterday.

BLITZER: We're going to get to both of those other issues in just a few moments.

Go ahead, Nia.

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: Yes, and clearly the Republicans are trying to frame Gorsuch as a consensus builder. As somebody who has bipartisan support. As someone who can appeal to somebody like Heidi Heitkamp and Joe Manchin, folks who are in these red states, who, because, I -- you know, I think Gorsuch, he's very much coming across as a very warm, affable, down home kind of person. You imagine those folks in states like that would find him very appealing.

I was looking at Scott Walker's Twitter feed, and he said this is a note to Democrats that this is someone you can get behind. Of course, I mean, if you look on Twitter at some of the folks on the progressive side, on the left, they want to talk more about abortion, about Roe v. Wade, about where he would stand. And you saw Dianne Feinstein try to make some headway on that, to ask him, did he see that as a super precedent, as something that had been affirmed many, many times. And, again, he isn't tipping his hand. He's applying the Ginsburg rule where there are no hints or forecast about what he would do.

BLITZER: Rick Santorum, he does come across as very knowledgeable, also very likable.

RICK SANTORUM, CNN SENIOR POLITICAL COMMENTATOR: Yes, I mean, he's -- I think he did a great job this morning. I think the Democrats so far have done a pretty poor job in -- but I think the reason they have -- did a poor job is because there's just not a lot to beat this man up on. I mean if you were going to beat up Neil Gorsuch, you don't ask him a bunch of questions on Supreme Court precedence because you know he's not going to answer them. The only thing you can hit him on are decisions he made, because then he has to explain his decisions. He can get into the law. He can -- he can say, in the Hobby Lobby case, here are the -- here are all -- here's my decisionmaking, here's why I made the decision, here's how I feel about it. Why? Because he has to defend his own opinion. To my knowledge, they've asked him about one opinion, which means, you know, we just had a whole morning and they've only brought up one case where they thought there might be some hay to make. That tells you they don't have a whole laundry list of hits to go after him on opinions where he's way off base.

BLITZER: Well, seven Democratic senators still have an opportunity to ask questions and --

SANTORUM: No, I (INAUDIBLE) myself but it's -- but it's not -- they didn't go after him, like if there was -- trust me, if there were cases out there that they thought he was vulnerable, they would have gone right after him. They didn't.

BLITZER: And we're going to be hearing from eight more Republican senators.

Jen Psaki, how did he do?

JEN PSAKI, FORMER WHITE HOUSE COMMUNICATIONS DIRECTOR: Pretty well. I mean, look, I think Democrats are opposed to where he is, where -- how he has ruled on a number of issues. That's the outcome of an election, as Gloria said earlier. He's a conservative pick. He is likable. He made a lot of dad jokes that weren't really funny, but probably appealing. I think the big question here is what Senator Santorum said earlier today, which is what's happening behind the scene. There are eight Democrats that they need to get in order to, you know, override the filibuster. I don't -- I think Democrats are going to push on this. They need to for their own purposes. The need to continue to galvanize the base about a range of issues. And backing away will be seen as a bit defeatist in the face.

SANTORUM: So you think -- you think they'll -- you don't think they'll get the eight votes, is that what you're saying?

PSAKI: I don't think they will.


PSAKI: I think -- I think Democrats are going to keep pushing on this, and they're going to try to keep their people with them for a range of issues.

BLITZER: Well, Senator Santorum, if -- if they -- the Democrats filibuster, they don't get the eight votes, will the Senate majority leader change the rules, the so-called nuclear option?

SANTORUM: Absolutely. I -- you know, Lindsey Graham talked about being the gang of 14 trying to forestall the nuclear option back when the Bush nominee was being blocked. Well, I was part of the nuclear committee. I mean I wanted to deploy the Harry Reid nuclear option because I think actually the rules the way Harry Reid interpreted them is right. That the Senate filibuster rule does not apply to executive nominations. The rule is very clear. It says legislative calendar. And nominations are on the executive calendar. It's actually a separate calendar.

[12:20:12] And so the rule, as written, never, in my mind -- it was always custom that they -- that it applied to a nominee, but it never actually did. And so what Harry Reid did was went out and said, OK, we're going to apply it to just all nominations, except Supreme Court. Well, there's no -- I mean that's just, you know, you know, making it up on the back of an envelope. The bottom line is, if it's all nominees -- it should be all nominees or none. And so I think there's plenty of precedent for Republicans to say, look, the rules changed back in 2013 when Harry Reid did this. We're going to apply it to everybody. And that's what's going to happen.

TOOBIN: I -- the first four questioners were Senators Grassley, Feinstein, Hatch, and Leahy. I added up their combined ages, 324 years old. They looked it. I mean I think if you want to cross-examine someone as knowledgeable and as smart and at the top of his game as Neil Gorsuch is, you need people who really are on top of their games, and none of the four of them are. And I thought it really showed.

BISKUPIC: Well, and that will happen -- and that will happen in the second part because we'll have Senators Whitehouse, Durbin, we'll have --


BORGER: Franken.

BISKUPIC: And those are people who will come back much stronger and would probably happen during the morning is that several people from the progressive base were going nuts. They're saying, why don't you follow-up more? They're probably going to help, you know, feed senators and pin him down more. The most awkward time came when Senator Feinstein was asking about some of his torture detainee information and he said, well, I can't really respond because I don't have the numbers (ph) in front of me. She said, well I'll bring them down there and have -- you know, you can read them. But he -- his feet were never really put to the fire. And as we remember, he opened the whole thing to Senator Grassley saying, well, that was a softball. Well, there were a lot of softballs.

TOOBIN: Well, and also, I mean just --

BLITZER: Well, finish it.

TOOBIN: But just, I mean the basic way you ask questions, you don't ask someone a question about a document and not show them a document.


TOOBIN: I mean it just shows that, you know, that Senator Feinstein, you know, as wonderful a history as she has, you know, you've got to -- you've got to ask people questions in the right way.

BLITZER: All right, everybody stand by. There's a lot more coming up.

Other major developments today. The future of health care repeal and replace now on the line. A big House floor vote coming up. The president was up on Capitol Hill meeting with Republicans, making his case for the legislation. We'll update you on that and a lot more right after this.


[12:26:41] BLITZER: Major developments unfolding. On the left you see the White House. There will be a White House press briefing with Sean Spicer, the press secretary. That's coming up. We'll have coverage of that.

On the right, the Senate Judiciary Committee, they will resume. They're in recess right now. The confirmation hearings for the Supreme Court nominee, Judge Neil Gorsuch. We'll have coverage of that once that committee hearing resumes. Senator Dick Durbin, the Democrat from Illinois, I think he's scheduled to begin the questioning.

But there are other major developments we're following right now, including a huge battle underway up on Capitol Hill over the republican's health care bill. President Trump and House Republican leaders just finished a closed door meeting with just two days to go before the critical vote on the House floor. Both the president and the speaker, Paul Ryan, they came out sounding confident that the new version, the bill with significant changes, will pass. Listen to this.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We had a great meeting. And I think we're going to get a winner vote. We're going to be -- we're going to have a real winner. It was a great meeting. We have terrific people. They want a tremendous health care plan. That's what we have. And there are going to be adjustments coming, but I think we'll get the vote on it (ph).

REP. PAUL RYAN (R), HOUSE SPEAKER: I want to say, we were honored this morning to welcome the president of the United States to our House Republican conference. I want to thank him for taking the time to come here to The Hill to talk to our members and for his steadfast leadership throughout this entire process. President Trump was here to do what he does best, and that is to close the deal. He is all in, and we are all in to end this Obamacare nightmare.


BLITZER: But not all Republicans are calling it a done deal by any means. Let's go to our congressional correspondent Phil Mattingly. He's live up on Capitol Hill.

So he was very, very upbeat, the president. He says it's a winner. What are you hearing?

PHIL MATTINGLY, CNN CORRESPONDENT: Yes, no question, Wolf. Sources inside the room said he talked about crowd sizes. He tried to rally the troops. And he even let loose a few vailed and not so vailed political threats to the House GOP members. But the real question still remains, was this enough to get Republican leadership the requisite number of votes they need to pass this? In some cases the answer is no. Take a listen.



REP. JIM JORDAN (R), OHIO: No, I said the president did a great job, and I appreciate the president, but the bill is still bad.

RAJU: So you're going to vote "no" on Thursday?

JORDAN: That's what I plan to do, yes.

RAJU: So his basic pitch was, what, vote for this essentially?

REP. WALTER JONES (R), NORTH CAROLINA: That's about it. Nothing in detail except politically it's the right thing to do. That kind of stuff.

QUESTION: More of a cheerleading moment.

JONES: Yes. Yes.

RAJU: And did that change your mind?


RAJU: You're still going to vote no?

JONES: Absolutely.


MATTINGLY: Now, Wolf, those are two members, Walter Jones, Jim Jordan, who were pretty hard on the no side of things, but there were a lot of members who could be persuaded by this meeting. One of whom, Darrell Issa, went into the meeting saying he was pretty sure he was a no, came out of the meeting saying he was now a likely yes. The question now becomes, how many of those members truly exist as they try and get to that vaunted 216 number? One of the most interesting elements I'm told from what was said inside the room by the president was a warning. A warning that if this bill fails, if the kind of primary issue on the Trump agenda goes down on Thursday in this House vote, many members will lose this -- their seats, and the House majority will actually be at risk and likely will go away as well.

[12:30:06] I asked Speaker Paul Ryan what he thought about that. Take a listen.


MATTINGLY: The president told your members that he believed many would lose their seats of this doesn't pass, the majority --