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Kavanaugh's Supreme Court Hearing. Aired 11:30-12p ET

Aired September 4, 2018 - 11:30   ET



SEN. PATRICK LEAHY, D-VT.: What is being hidden? And why? Every White House record that we've received was hand-picked by your deputy in the Bush White House, a hyper-conflicted lawyer who also represents a half-dozen Trump administration officials who are under investigation by prosecutors in the Russian investigation.

And this partisan lawyer has decided which of your records the Senate -- but more importantly, the American people, the American people -- get to see.

And fourth, countless documents that have been provided to the committee contain apparent alterations and omissions with zero explanation.

No court in this country, certainly no court that I ever argued cases before, would accept this as a legitimate document production. And the United States Senate shouldn't either.

And fifth, more than 40 percent of the documents we have received, almost 190,000 pages are considered committee-confidential by Chairman Grassley.

For the vast majority of them, there's not even a conceivable argument to restrict them. Compare this to the mere 860 documents who are designated committee-confidential for Justice Kagan. In that, the request was made by the nonpartisan archives, not by this committee. And we still had 99 percent of her records.

And, sixth, on Friday we learned that President Trump is claiming executive privilege over an additional 102,000 pages of your records.

Such a blanket assertion of executive privilege is simply unheard of in the history of this country. And the reason it's unheard of is because it is so outrageous.

The last time a president attempted to hide a Supreme Court nominee's records by invoking executive privilege was when President Reagan did this for Justice William Rehnquist.

But then Republicans and Democrats came together, and we demanded the documents be released. And President Reagan said OK, and they were released. Boy how times have changed. And seventh, to date, we've received less than half of Chairman Grassley's partial records request. Meaning we're moving forward even though we've received a fraction of the records even Republicans claimed they needed to vet your nomination just a few weeks ago.

And then we received an additional 42,000 pages for your record a few hours ago. The notion that anyone here has properly viewed them or even seen them at all is laughable. It's laughable. It doesn't pass the giggle test. That alone would be reason to postpone during normal times.

But nothing about this is normal. All told, only 4 percent -- 4 percent -- of your White House record has been shared with the public. Only 7 percent has been made available to this committee. The rest remains hidden from scrutiny.

Compare this to the 99 percent of Justice Kagan's White House record that was available to all Americans as a result of the bipartisan process I ran with then-Ranking Member Jeff Sessions. When Senator Sessions and I requested it, we got 99 percent.

What is being hidden and why? And if I've not been clear, I will be so now. Today, the Senate is not simply phoning in our vetting obligation, we're discarding it. It's not only shameful, it's a sham.

I felt, on the day when I took my oath of office the first time, 44 years ago, I was told by both the Republican and Democratic leadership of the Senate, people I highly respected, the Senate should be and can be the conscience of the nation. I've represented Vermont here for 44 years. I've served with pride here, believing that the Senate can be and should be the conscience of the nation.

[11:35:00] Today, with this hearing, it is not being the conscience of the nation. And from the bits and pieces of your record we've received, it appears you've provided misleading testimony about your involvement in controversial issues of the Bush White House during your previous confirmation hearings, misleading testimony.

I asked you about these concerns last month, and I want to alert you that I will return to those concerns when you are under oath and I'm asking you questions. What I fear is the American people will not know the full truth until your full record is public, and unfortunately, Republicans have done their best to ensure that won't happen.

So what you (ph) get in these hearings, we've (ph) gaping holes spanning multiple years of your career, deeply influenced by your own words, your thinking as a judge.

And any claim that this has been a thorough, transparent process is downright Orwellian. This is the most incomplete, most partisan, least transparent vetting for any Supreme Court nominee I have ever seen, and I have seen more of those than any person serving in the Senate today.

So, Judge Kavanaugh, this hearing is premature. I hope you will use it, though, to answer our questions directly, clearly and honestly because the American people have real concerns about how your confirmation would affect their lives.

And I'll conclude with this, Supreme Court is the guarantor of our liberties and our republic. Few, I would argue, are worthy of taking a seat. Only those with unimpeachable integrity, only those who believe that truth is more important than party, only those who are committed to upholding the rights of all Americans -- not just those in power.

As you know, inscribed in Vermont marble above the court's entrance are the words, "equal -- equal justice under law." For the millions of Americans fearful that they're on the verge of losing hard-fought rights, that aspiration has never been more important than it is today. Frankly, as a member of the Supreme Court Bar and as a United States senator, I feel it's never been more at risk.

Thank you.

GRASSLEY: Before I call on Senator Cornyn -- how ridiculous it is to say that we don't have the records that it takes to determine this person qualified to be on the Supreme Court, when all the documents we have add up to more than we have had for the last five Supreme Court nominees. How'd we make those decisions for those other five?

BOOKER: Mr. Chairman?

GRASSLEY: Senator Cornyn?

BOOKER: Mr. Chairman, if I could just respond to that point, because you're not giving the whole picture, sir.



BOOKER: Ninety percent of the documents, we haven't seen; it's not the number of documents.

GRASSLEY: ... and I'll be glad to respond to that, but...

BOOKER: We -- you wouldn't -- we wouldn't hire an intern, sir, with only 90 percent of their resume...

GRASSLEY: Senator...

BOOKER: ... and we're -- we're putting somebody on the Supreme Court.

GRASSLEY: ... Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

Judge Kavanaugh, welcome to you, and your family and friends. I'm amazed at the poker faces I've seen on the front row during all of this pandemonium -- unlike anything I've seen before in a confirmation hearing.

In my view, it's not because your opponents don't know enough about you; it's because they do know all they need to know, apparently, to oppose your nomination. And even before you've had a chance to answer our questions, including their questions, many of them have made up their minds. But the American people have not been introduced to you before.

This is an opportunity for all of us to engage in a question and answer format that will, hopefully, illuminate why it is so important to have judges who actually are tethered to the text of the laws passed by Congress, signed by the president as well as the Constitution by the United States. The Senate Judiciary Committee undertakes few more important tasks than the one before us today.

Last year, the committee considered and advanced the nomination of Justice Neil Gorsuch, who was just one of many outstanding judicial nominees by President Trump. This Congress has proudly confirmed not just Judge Gorsuch, but 26 judges to the appellate courts across the nation; this includes three outstanding Texans to the Fifth Circuit Court of Appeals.

[11:40:00] Historically, the confirmation of judges to our highest courts was somewhat routine -- routine. Justice Gorsuch was unanimously confirmed by a simple voice vote to the Court of Appeals. Not one senator voted against Justice Kennedy, who both you and Justice Gorsuch clerked for, and who you will succeed on the court. Not one senator voted against Justice Scalia's confirmation, who you have called a role model and a hero.

But that was before judges were viewed as policymakers, rather than fair and neutral interpreters of the Constitution and the laws drafted by Congress. Today, as I suggested, is a wonderful opportunity to re- examine the proper role for judges under our Constitution and the difference between legislators and judges.

As Justice Gorsuch wrote before he joined the Supreme Court, upholding and enforcing this distinction between legislators and judges was the great project of the late Justice Scalia's career. Justice Scalia would always remind us that legislators may appeal to their own moral convictions and to claims about social utility. But judges, instead, should strive to apply the law as it is, looking to the text, structure and history -- not to decide cases based on their own moral convictions or the policy consequences.


CORNYN: So this hearing is a outstanding way to remind the American people the proper role of judges under our Constitution. Our Constitution provides for a federal government of limited and delegated powers, with a Bill of Rights to further protect our individual liberties.

To that end, the framers created three co-equal branches, as you know -- the legislature, to enact laws; the executive to enforce them; and, and the judicial branch to settle disputes about the meaning of those laws and the Constitution.

PROTESTER: (OFF-MIKE) CORNYN: Of course, legislature could change the laws, but only an amendment can change the Constitution. For this reason, Alexander Hamilton wrote in the Federalist Papers...

PROTESTER: (OFF-MIKE) hearing. This is not a transparent hearing; release the documents.

CORNYN: Mr. Chairman, can I pause there until the room is cleared out?


CORNYN: Thank you.

For this reason, Alexander Hamilton wrote in the Federalist Papers that the judiciary will always be the least dangerous branch because, as he famously wrote, judges would have, "neither force nor will, but merely judgment."

Today, the Judiciary Committee has gathered to consider whether Judge Kavanaugh will honor that limited role for judges under our Constitution, and whether he will properly exercise the modest and humble power of judgment entrusted to him under our Constitution.

I'm confident the Senate will find that Judge Kavanaugh will faithfully and fairly interpret the Constitution and the laws of this great nation. And I look forward to him succeeding Justice Kennedy. One reason for that is I've been acquainted with Judge Kavanaugh for about 18 years and I can personally attest to his skills as a lawyer.

PROTESTER: (OFF-MIKE) no on Justice Kavanaugh.

CORNYN: When I was attorney general of Texas, as the judge will recall, he helped me get ready for a Supreme Court argument.

PROTESTER: He is not the voice of the people. Vote no; vote for my children's health care (ph).

PROTESTER: (OFF-MIKE) When I joined the military, I was forced to go through (OFF-MIKE) -- I got a background check. They didn't use (ph) two-thirds of it, they did the whole thing.

CORNYN: May I proceed, Mr. Chairman?


CORNYN: As I was saying -- that is (ph)...

PROTESTER: These hearings are a betrayal of the trust that we've placed in you.

CORNYN: When I was attorney general of Texas, I had a chance to argue a couple of cases in front of the United States Supreme Court. One case Judge Kavanaugh helped me prepare for was one involving the question of school prayer at a high school football game at the Santa Fe Independent School District High School. After that, I was pleased to introduce Judge Kavanaugh to the Judiciary Committee when President Bush first nominated him to be a judge on the D.C. Circuit. What I said back then still stands the test of time today. Judge Kavanaugh has an unparalleled academic and professional record of service. Many will cite his education, his clerkships, his time arguing cases before the court, his experience working for the executive branch.

But I think one of the most important factors to me is he's already exercised excellent judgment in marrying a Texan, Ashley from Abilene.


CORNYN: So I know he's a good judge. In fact, Judge Kavanaugh's one of the most respected and thoughtful judges in the country.

[11:45:00] I am disappointed that despite his exemplary qualifications and outstanding record...


CORNYN: ... so many of our colleagues across the aisle have announced their opposition even before he was nominated.


CORNYN: The level of disingenuousness and hyperbole, even by today's standards, is extraordinary. Members from the other side of the aisle, assuming -- including some have -- serve on this committee have claimed that confirming Judge Kavanaugh would somehow be complicit and evil, and the result in the destruction of the Constitution. Some have even claimed that you testified falsely. We've already heard that alluded to...


CORNYN: ... before the committee, when you were serving our country in the Bush White House. I hope you'll have a chance to explain the apparent misunderstanding on the part of some senators. And -- and I sincerely hope this week we can all take a deep breath. We're not doing very well so far...


...and get a grip, and treat this process with the respect and gravity it demands. As others have alluded, the American Bar Association, which some have called "the gold standard for judicial evaluations" have unanimously rated you as well-qualified for service on the Supreme Court.

And as we've heard, a number of lawyers and judges across the spectrum have talked about your qualifications and sung your praises. And I'm confident at the end of this hearing, your stellar credentials and your body of work as a judge will demonstrate that you properly understand the role of a judge under the Constitution, and I'm confident you will demonstrate that you will faithfully and fairly interpret the text of the law and the Constitution, and dutifully apply them to the disputes that come before you.

Finally, judge, I expect we'll have a conversation or two about this book which you contributed to, and the law of judicial precedent, because I know that there's a number of questions by members of the Senate about how you will regard previously-decided cases in the Supreme Court, and I trust you'll give us a scholarly and detailed explanation of that, and demonstrate that many of the concerns that have been expressed about a new justice coming on the court somehow wiping away previous decisions single-handedly, not even with the help of other members of the court, is just plain ridiculous.

And we look forward to asking those questions, and getting your answer. Thank you very much.

GRASSLEY: Senator Durbin?

DURBIN: Thank you, Mr. Chairman.

Judge Kavanaugh, it's good to see you again, and I thank the members of your family who are weathering this hearing. Thank you very much for being here today.

This is a different hearing for the Supreme Court than I've ever been through. It's different in what's happened in this room just this morning. What we've heard is the noise of democracy. This is what happens in a free country when people can stand up and speak, and not be jailed, imprisoned, tortured or killed because of it. It is not mob rule. There have been times when it is uncomfortable, I'm sure it was for your children. I hope you can explain this to them at some point. But it does represent what we are about in this democracy.

Why is this happening for the first time in the history of this committee? I think we need to be honest about why it's happening. I think it's the same reason why, when I go home to Illinois after being in this public service job for over 30 years, I hear a question that I've never, ever heard before, repeatedly, as people pull me off the side and say, "Senator, are we going to be all right? Is America going to be all right?" They're genuinely concerned about the future of this country.

You come to this moment of history in a rare situation. You are aspiring to be the most decisive vote on the Supreme Court on critical issues. Justice Kennedy did that for 12 years, and you are called to that responsibility, and we realize the gravity of that opportunity and that responsibility.

Secondly, of course, your record and the statements of others suggest there's real, genuine concern about changing life and death values in this country, because you see things differently. We've heard that over and over again, and I -- I -- I think you must understand the depth of feeling about that possibility.

And third, try as they might, I'm afraid the majority just can't get beyond the fact that there are parts of your public life that they want to conceal. They don't want America to see them. I think that's a serious mistake, and I'm going to make a suggestion at the end of my remarks.


But over and above all of those things is this: you are the nominee of President Donald John Trump. This is a president whose shown us consistently that he's contemptuous of the rule of law. He has said and done things as president which we've never seen before in our history. He has dismissed the head of the Federal Bureau of Investigation when he wouldn't bend to his will. He harasses and threatens his own attorney general on almost a daily basis in the exercise of his office. And I didn't vote for Jeff Sessions, but I have to tell you, there should be some respect at least for the office that he serves in.

And it's that president who's decided you are his man. You're the person he wants on the Supreme Court. You are his personal choice. So are people nervous about this? Are they concerned about it? Of course they are. I'm sure there'll be a shower of tweets sometime later in the day, harassing people in the cabinet, people in the White House, maybe even dismissing them, and maybe he'll go after me again. Be my guest.

But the point I'm getting to is, if you wonder why this reaction's taking place, because what's happening in this country. There are many of us who are concerned about the future of this country and the future of democracy, and you are asking for a lifetime appointment to the highest court in the land, where you will make decisions, the deciding vote on things that'll decide the course of history and where we are headed.

The Senate has a constitutional responsibility to evaluate your nomination. We do know that before you became a judge, you were faithfully advancing the Republican Party agenda. I jokingly said, in one of your previous appearances, that you're like the Forrest Gump of Republican politics; you always show up in the picture. Whether it's the Ken Starr investigation, Bush v. Gore or the Bush White House, you've been there.

DURBIN: We also know that before naming you, President Trump made it clear that he would appoint justices -- only appoint justices to the Supreme Court who would overturn Roe versus Wade and the Affordable Care Act. Those were his litmus tests.

Now, he didn't ask you the question. What he did was to delegate this responsibility to two special interest groups: The Federal Society and the Heritage Foundation, and the other groups that are spending millions of dollars in support of your candidacy. They're confident that you're going to favor the interests of corporations over workers and give the president wide berth when it comes to executive authority.

And your own law clerks -- men and women you chose, men and women who wrote the words that had your signature at the bottom of the page-have told us what they think of you. One wrote in an article entitled, quote, "Brett Kavanaugh said Obamacare was unprecedented and unlawful." That's from one of your clerks. Another wrote when it comes to, quote, "enforcing restrictions on abortion, no Court of Appeals Judge in the nation has a stronger more consistent record than Judge Brett Kavanaugh." Big corporate interests solidly behind your nomination. Chamber of Commerce, full support. And President Trump's, whose lawyers say they will fight any effort to subpoena or indict him all the way to the Supreme Court -- that president seems personally eager to have you confirmed as quickly as possible.

Why are your supporters so confident you will rule on these issues as they wish? Why do they think you're such a sure bet to take their side, when in the words of one of your former clerks, "this is no time for a gamble"?

Unfortunately I don't think you're going to tell us much this week. It's interesting to me that people in your position write all these Law Review articles, make all these speeches and come to this room and clam up -- don't want to talk about any issues -- but that's what I expect.

Instead we'll be asked to trust that if you're confirmed you'll have an open mind, that you'll follow the law rather than move the law in your -- direction of your views. I'd like to trust you, but I agree with President Ronald Reagan -- trust but verify. I wanted to trust you the last time you testified before this committee in 2006 after -- but after you were confirmed the D.C. Circuit reports surfaced that contradicted your sworn testimony before this committee.

You said to me unambiguously under oath the following, "I was not involved and am not involved in the questions about the rules governing detention of combatants." But later just a week or so ago you acknowledged to my office that you were involved. For 12 years you could've apologized and corrected this record, but you never did. Instead you and your supporters have argued we should ignore that simple declarative sentence which you spoke and somehow conclude your words mean something far different.

You are a committed textualist, Judge Kavanaugh? If you're going to hold others accountable for their words, you should be held accountable for your own words.

[11:55:00] So after my personal experience I start these hearings with a question about your credibility as a witness. I know from my history with you that things you said need to be carefully verified.

That brings us to a major problem. I won't retread the ground about all the documents that are being withheld but I'll show you a little calendar here that's interesting. There is a 35-month black hole in your White House career where we've been denied access to any and all documents -- 35 months in the White House. And I asked you in my office, during that period of time President Bush was considering same-sex marriage -- an amendment to ban it; abortion, executive power, detainings, torture, Supreme Court nominees, warrantless wiretapping. One of these issues bears special mention as we mourn the passing of John McCain. In 2004, 2005 I joined John McCain when he led the effort to pass an amendment affirming that torture and cruel and inhuman and degrading treatment would be illegal in America. As a survivor of unspeakable torture, John McCain spoke with powerful moral authority about American values during the time of war. You were in the Bush White House when that McCain Amendment passed. The Bush administration did everything in its power to stop John McCain's torture amendment then after we passed it 90-to-9, a veto-proof margin, President Bush issued a signing statement asserting his right to ignore the law that John McCain had just passed in Congress.

When we met in my office you acknowledged that you worked on that signing statement, yet we've been denied any documents disclosing your role or your advice to President Bush. I asked you if you wrote, edited, or approved documents about these and other issues while you were staff secretary -- time and again you said, you can't rule it out.

Judge Kavanaugh, America needs to see those documents. We cannot carefully review, advise, and decide whether to consent to your nomination without clarity on the record. The period of time when you worked in the Republican White House led to a change in position on an issue which we have to address directly; your views on executive power and accountability have changed dramatically.

When you worked for special counsel Ken Starr in the late 1990s, you called him, quote, "an American hero" for investigating President Bill Clinton and you personally urged Starr to be aggressive, confrontational, and even graphic in his questions -- we've seen your memo on that one. But a few years later after working in the Republican White House, you totally reversed your position and argued that presidents should be above the law and granted a free pass from criminal investigation while in office.

What did you see in that Bush White House that dramatically changed your view? What are your views about presidential accountability today?

Judge Kavanaugh, at this moment in our nation's history, with authoritarian forces threatening our democracy, with the campaign and administration of this president under federal criminal investigation we need a direct credible answer from you -- is this president or any president above the law? Equally important, can this president ignore the Constitution in the exercise of his authority?

You dissented in the Seven-Sky case. When the D.C. Circuit upheld the Affordable Care Act's constitutionality you criticized the law, the law which this president has said many times he wants to ignore and abolish. And you said, quote, "the president may decline to enforce a statute that regulates private individuals when the president deems -- when the president deems -- the statute unconstitutional even if a court has held or would hold the statute constitutional."

This statement by you flies in the face of Marbury v. Madison -- our north star on the separation of powers. It gives license to this president, Donald John Trump -- or any president who chooses to ignore the Constitution -- to assert authority far beyond that envisioned by our founding fathers.

There are many people who are watching carefully. I might make a suggestion to you today and it won't be popular on either side of the aisle. If you believe that your public record is one that you can stand behind and defend I hope that at the end of this, you will ask this committee to suspend until we are given all the documents. Until we have the time to review them. And then we resume this hearing.

What I'm saying to you is basically this -- if you will trust the American people, they will trust you, but if your effort today continues to conceal and hide documents, it raises a suspicion.

I'll close, Mr. Chairman; I know you're anxious. When I was a practicing lawyer a long time ago in trial and the other side either destroyed or concealed evidence, I knew that I was going to be able to have a convincing argument to close that case. What were -- were they hiding? Why won't they let you see the speed tape on that train or the documents that they just can't find?