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Kavanaugh's Supreme Court Hearing. Aired 10-10:30a ET

Aired September 4, 2018 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[10:00:00]

BLUMENTHAL: Mr. Chairman, I ask to respond to my colleague from Texas.

GRASSLEY: I'd like to respond to Senator Booker.

BLUMENTHAL: Mr. Chairman?

GRASSLEY: Senator Booker, using a standard set by two members of your political party in the caucus, and I'm going to phrase (ph), because I don't have the exact quotes in front of me, but recently, Senator Schumer said from the floor, "The best judge of whether or not somebody should be on the Supreme Court is decisions that they've made at lower courts."

Senator Leahy said something similar to that when Senator Sotomayor was before us, that, "We know how -- we know how many -- we know what you have done in a lower court. That's the best basis for knowing whether or not you ought to be on the Supreme Court."

So, we have 307 cases that this nominee has written decisions on as a basis for that, and -- and we've -- we've got 488,000 other pages. And maybe the senators haven't read them, but their staff is fully informed, because last night before 11 o'clock on the 42,000 pages that have come to our attention, the staff on the Republican side has gone through them.

BOOKER: But, sir, then why did you ask for the White House counsel documents?

GRASSLEY: Senator...

BOOKER: They were not germane to this hearing. Why would you even ask for them?

GRASSLEY: Senator Feinstein?

(UNKNOWN): For the record, that's a rate of 7,000 pages per hour. That's superhuman.

(LAUGHTER)

(UNKNOWN): Right. Yeah.

(UNKNOWN): They're amazing. They're amazing.

FEINSTEIN: Mr. Chairman...

GRASSLEY: Yes, go ahead.

FEINSTEIN: ... if I may...

GRASSLEY: Yeah. Proceed.

FEINSTEIN: ... I've been through nine Supreme Court hearings...

GRASSLEY: Is this your opening statement?

FEINSTEIN: ... and -- it's part of it.

GRASSLEY: Well, why don't you make your opening statement?

FEINSTEIN: Shall I?

GRASSLEY: Yeah, would you please?

(LAUGHTER)

BLUMENTHAL: Mr. Chairman...

HARRIS: There's a motion pending.

BLUMENTHAL: ... I ask for an opportunity to respond to my colleague from Texas, because he has directly challenged...

GRASSLEY: You're -- I said you're -- you're out of order.

BLUMENTHAL: Well, Mr. Chairman...

GRASSLEY: Senator Feinstein?

BLUMENTHAL: ... I -- I ask in the process...

GRASSLEY: Would you...

BLUMENTHAL: ... of regular order an opportunity to respond...

FEINSTEIN: Well, let me...

BLUMENTHAL: ... to what I believe was a personal attack.

GRASSLEY: I'd like -- I'd like to have you give Senator Feinstein the courtesy of listening to her opening statement.

FEINSTEIN: Well, I was just going to say some things.

And you heard that this is my ninth hearing. And I think we've got to look at this; these are very unique circumstances. Not only is the country deeply divided politically, we also find ourselves with a president who faces his own serious problems.

Over a dozen Cabinet members and senior aides to President Trump have resigned, been fired or failed their confirmations under clouds of corruption, scandal and suspicion. The president's personal lawyer, campaign manager, deputy campaign manager and several campaign advisers have been entangled by indictments, guilty pleas and criminal convictions.

FEINSTEIN: So it's this backdrop that this nominee comes into when what we're looking at is, is he within the mainstream of American legal opinion and will he do the right thing by the Constitution?

We are also experiencing the vetting process that has cast aside tradition in favor of speed.

When Justice Scalia died, Republicans refused to even meet -- even a meeting in their office -- with President Obama's nominee and held the seat open for one year.

Now with a Republican in the White House, they've changed your position. The majority rushed into this hearing and is refusing to even look at the nominee's full record.

In fact, 93 percent of the records from Kavanaugh's tenure in the White House as counsel and staff secretary have not been provided to the Senate, and 96 percent has not been given to the public.

We do know what the White House thinks of this nominee. Don McGahn, the -- the White House counsel, spoke to the Federalist Society and made clear Brett Kavanaugh is exactly the kind of nominee the president wanted. In a speech, Mr. McGahn discussed President Trump's two lists of potential Supreme Court nominees.

One, he said was filled with mainstream candidates. The other list included candidates that're "kind of too hot for prime time, the kind that really -- would be really hot in the Senate (ph). Probably people who have written a lot. We really get a sense of their views.

[10:05:00]

The kind of people that make people nervous."

That's a quote.

Now, what I'm saying, this is the backdrop into which we come in to this situation.

So yes, there is frustration on this side. We know what happened with the prior nominee, the last one President Obama presented to us. He never even got a meeting, he never got a hearing, he never got a vote. And now the rush to judgment and the inability to really have a civil and process -- and positive process ends up being the result.

I really regret this, but I think you have to understand the frustration on this side of the aisle. Everyone on this side of the aisle wants to do a good job. They want time to be able to consider what the findings are. And there are tens of thousands of pages of e- mails and other items which could constitute findings on a whole host of major subjects that this nominee may be faced with. And they're serious: the torture issues, all of the Enron issues that he's been through, all -- all of the kinds of things that we want to ask questions about.

FEINSTEIN: So, I mean, understand where we're coming from. It's not to create a disruption. It's not to make this a very bad process.

It is to say, "Majority, give us the time to do our work so that we can have a positive and comprehensive hearing on the man who may well be the deciding vote for many of America's futures."

BLUMENTHAL: Mr. Chairman, I renew my motion to adjourn and Senator Harris' motion to postpone. I ask for a second.

(UNKNOWN): Second the motion.

BLUMENTHAL: Mr. Chairman, I ask for a vote. I ask that we...

GRASSLEY: I don't...

BLUMENTHAL: ... reconvene in a second session and have a vote.

GRASSLEY: I shouldn't have to explain to you we're having a hearing. It's out of order. We're not in executive session. That'd be the proper forum for entertaining motions.

BLUMENTHAL: I ask that we reconvene in executive session. We -- we would...

GRASSLEY: So, we won't -- we won't vote on Senator Blumenthal's suggestion. We won't follow your suggestion to...

PROTESTER: (OFF-MIKE)

BLUMENTHAL: Well, it's a motion, Mr. Chairman.

GRASSLEY: ... to go into executive session. Motions would not be...

PROTESTER: (OFF-MIKE)

GRASSLEY: ... proper at this time.

PROTESTER: (OFF-MIKE)

HARRIS: Mr. Chairman, it's a pending motion before the committee.

PROTESTER: (OFF-MIKE)

BLUMENTHAL: Mr. Chairman, if -- if there is no vote on this motion, which has been properly seconded and which could be given a vote in executive session, this process will be tainted and stained forever.

I'm asking, as a member of this committee, it's my right to do so, that we vote on my motion to adjourn and Senator Harris' motion to postpone. And that we do it in executive session, which can be easily and quickly convened right now.

GRASSLEY: Yeah. The motion is out of order. BOOKER: Sir, then I -- I make a very clear and simple motion to move into executive session so that Senator Blumenthal's motion may be considered.

GRASSLEY: The motion is out of order.

BLUMENTHAL: Well, they're -- they're not of order, Mr. Chairman. They're properly before this committee. Simply saying so -- with all due respect, and I have great respect for the chairman -- doesn't make them so. It doesn't make them out of order just because the chairman rules that they're out of order.

We have a number of excellent lawyers in this room, and I ask that this body now do what its responsibility is, to have an executive session so we can vote on a motion to adjourn and then we can deliberately and thoughtfully consider the documents that have been presented and also review the committee documents that have been marked confidential without any reason or rationale.

GRASSLEY: The motion is denied.

BOOKER: Sir, how long would that take? Ten minutes for us to have a motion and a vote on this process?

I -- I don't understand what the rush is that we can't even let senators vote on what is a very important motion germane to our due -- constitutional duties before this -- before this body, before we proceed. I don't understand.

It won't take that much time. What is the rush? What are we afraid of, to hold a vote on the motions before us?

KENNEDY: Mr. Chairman. Mr. Chairman.

GRASSLEY: Senator Kennedy.

KENNEDY: Thank you, Mr. Chairman.

I -- I'm -- I have a question about the process. I understand my colleagues' point, and I understand they feel strongly about this. But what are going to be the ground rules today?

[10:10:00]

Are we going to be allowed to interrupt each other, interrupt the witness? Are we going to -- should we seek recognition from the chair?

I just want to understand the ground rules.

GRASSLEY: Proper -- proper respect and decorum, plus how we normally have done business. In a hearing like this, we wouldn't be having all these motions. You're new to the Senate, so this is something I've never gone through before in 15 Supreme Court nominations that I have been -- since I've been on here.

And every member be -- I was interrupted before I got a chance to say what -- the agenda for today.

But every member is going to get 10 minutes to make their remarks. And then we will go to the introducers of Judge Kavanaugh. There'll be three of those. They will take the usual time of introducers. And then we will have the swearing-in of Judge Kavanaugh. And then we will have his opening remarks. And then we will adjourn for today.

We will reconvene at 9:30 on Wednesday and Thursday. Each member will have 30 minutes to ask questions or make all these points they're making right now for each -- the first round. Then there will be a second round of 20 minutes each.

So every member is going to get 50 minutes to ask all the questions or make all the statements that they want to make in regard to anything about this candidate or anything about how this meeting's being conducted. And then we will -- we will -- we will go late into Wednesday night or Thursday night until we get done with the questioning of Judge Kavanaugh.

And then on Thursday, we're going to have three panels of six each, evenly divided for people that think Judge Kavanaugh should be on the Supreme Court and people that think he should not be on the Supreme Court. And we hopefully get that done Friday, but if we have to go Saturday and Sunday, we'll go Saturday and Sunday until we get it all done.

HARRIS: Mr. Chairman, how can we possibly talk about...

GRASSLEY: Does that answer your -- does that answer your question, Senator Kennedy?

KENNEDY: Well, if -- if I'd want to -- yes, Mr. Chairman, I appreciate it.

If I want to say something, do I need to be recognized by the chair?

GRASSLEY: That would be the way that it's handled.

I'd tried to explain to you, I'm going to be patient because sometimes if you aren't patient and you argue why something shouldn't be done, it takes longer than it does just to listen to people. But I don't think we should have to listen to the same thing three or four times.

KENNEDY: Well, patience is good, Mr. Chairman. But I just want to understand the rules. If I want to be recognized...

GRASSLEY: Yes, you should be recognized.

KENNEDY: ... I have to...

GRASSLEY: You can understand that I have been patient and listened to people not be recognized and speak anyway, because I would like to have this be a peaceful session.

KENNEDY: Well, before I try your patience, I'm done.

HIRONO: Mr. Chairman, I have a question...

HARRIS: Mr. Chairman...

HIRONO: ... about ground rules.

GRASSLEY: Go ahead.

HIRONO: The question is, before we can proceed, I'd like to know whether the majority is still requiring of all of the Democratic members of this committee to preclear the questions, documents and videos that we would like to use at this hearing.

GRASSLEY: If the -- if the -- if the -- I -- I was hoping that on the subject that you just brought up, that we would have some clarification of how -- what you want to approach that. And -- and I'm not prepared to answer that question, because I don't know what the answer has been and I don't want you to give me what you think the answer has been of -- of discussion between our staff on that subject.

HIRONO: Mr. Chairman, I don't think it's ever been the case in a hearing like this that the members of this committee have to preclear what we propose to query the nominee about. I think that is totally unprecedented.

HARRIS: And, Mr. Chairman...

TILLIS: Mr. Chairman...

HARRIS: ... if we don't even know what the rules are, how can we proceed with this hearing?

(CROSSTALK)

GRASSLEY: I'd like to respond -- I'd like to respond to Senator Hirono.

The reason why we're having that discussion is, at least in my time on this committee and for 15 nominations, we've never had a request for a video. So I'd like -- it seems to me to be courteous to all the members of the committee, it'd be nice to know the purpose and what it might contain.

You don't -- any questions you want to ask, you can ask questions. It isn't about what questions you were going to ask, it's about the presentation of something that's never been a part of a Supreme Court hearing in the past.

TILLIS: Mr. Chairman...

HARRIS: Mr. Chairman...

GRASSLEY: Who wanted?

HARRIS: The -- the...

TILLIS: Mr. Chairman? GRASSLEY: I think I'll go back and forth.

Senator Tillis?

TILLIS: Mr. Chairman, I -- I'm confused, because I heard earlier that this was a -- a reaction to the document releases last night.

[10:15:00]

But I -- I'm reviewing a tweet from NBC that said "Democrats plotted coordinated protest strategy over the holiday weekend. All agreed to disrupt and protest the hearing, sources tell me." And subsequent, "Dem leader led a -- Chuck Schumer led a phone call and committee members are executing now."

So I just want to be clear, none of the members on this committee participated in that phone call or that strategy before the documents were released yesterday? Is this -- is -- are you suggesting that this allegation is false?

DURBIN: Mr. Chairman, may I respond?

GRASSLEY: Senator Durbin?

DURBIN: Mr. Chairman, there was a phone conference yesterday. And I can tell you at the time of the phone conference, many issues were raised. One of the issues was the fact that over 100,000 documents related to Judge Kavanaugh have been characterized by the chairman of the committee as committee confidential.

I have been a member of this committee for a number of years. Committee confidential documents have been really limited to extraordinary circumstances. As an example, if someone is accused of taking drugs during the course of an investigation -- and I'm not making any suggestion that that is even the case or close to it here -- it was done in a confidential setting in fairness to the nominee. And the same thing on DUIs and the like.

We used it in extremely rare circumstances where we would meet after this committee hearing and sit down, and it usually related to a handful of pages or a handful of document references.

DURBIN: Instead, what we've found now is that we are seeing hundreds of thousands of documents characterized as committee confidential unilaterally. It's not done on a bipartisan basis; it's being done by the chairman.

So one of the discussions yesterday was this whole question of whether this committee is going to hear a nominee for a lifetime appointment to the highest court in the land without access to basic information about his public record, his public record as secretary to the president of the United States -- staff secretary. Thirty-five months of public service we've been told are -- cannot even be considered -- the documents of that service cannot even be considered.

So I'd say to the gentleman -- or the senator from North Carolina, there was a conversation yesterday about these documents. I had no idea that 11 o'clock last night 42,000 more documents would be put on top of us and we'd be asked to take them up today. So it added insult to injury.

HARRIS: Mr. Chairman...

BLUMENTHAL: Mr. Chairman, I asked to be recognized under Rule IV. Rule IV states, "The chairman shall entertain a non-debatable motion to bring a matter before the committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call of the committee shall be taken. And debate shall be terminated if the motion to bring the matter to a vote without further debate passes with 11 votes in the affirmative, one of which must be cast by the minority."

I ask for a vote on my motion to adjourn under Rule IV, Mr. Chairman.

These are rules that we are obligated to follow. The chairman has no right, with all due respect, to simply override them by fiat.

GRASSLEY: Yeah. We -- we are obligated...

BLUMENTHAL: I ask for (inaudible)...

GRASSLEY: We are obligated by that rule in executive session. We're not in executive session. I would -- I would...

PROTESTER: (OFF-MIKE)

GRASSLEY: I would respond to the issues brought up by Senator Durbin about confidential documents.

I was criticized for my decision to receive some documents on committee confidential. But I'm doing exactly what I did during Judge Gorsuch's confirmation and what Chairman Leahy did during Justice Kagan's. This is another example of treating regular committee practices as somehow -- somehow out of the ordinary.

Presidential records that we receive often contain highly sensitive advice to the president, as well as personal privacy information like full names, date of birth, Social Security numbers and bank account numbers.

Like my predecessor, I agreed to receive some presidential records as committee confidential so that both Democrats and Republicans could begin reviewing Judge Kavanaugh's materials much earlier. I don't know why my Democrat colleagues object to receiving documents faster.

But not all of these presidential records remain confidential. In fact, nearly two-thirds already became public. These records are posted on the committee's public website and available to the American people. As a result, we've provided unprecedented public access to a record number of presidential records and did it in record time.

The most sensitive presidential records remain committee confidential under federal law. [10:20:00]

Just as they were during the nominations of Kagan or Gorsuch.

But we have expanded access to these documents also. Instead of just providing access to committee members, we've provided access to all 100 senators. Instead of just providing access to a very few committee aides, we've provided access to all committee aides. And instead of just providing access to physical binders of paper, we've provided 24/7 digital and searchable access. This is unprecedented access to committee confidential material.

I'd also like to add that my staff set up workstations and have been available 24/7 to help senators who -- who are not on committee access confidential materials, but not one...

PROTESTER: (OFF-MIKE)

GRASSLEY: ... but not one senator showed up. I guess senators complaining about lack of access to confidential documents weren't really interested in seeing them in the first place.

But I want to emphasize, more documents are widely available than in any prior Supreme Court nomination.

And then to the issue about hiding committee confidential documents, some colleagues -- and you've heard it this morning -- accused of hiding documents. They're suggesting that some of the committee confidential documents contain information that would be of great interest to the public.

Well, just as I did last year during Justice Gorsuch's confirmation, I put a process in place that would allow my colleagues to obtain the public release of confidential documents for use during the hearing. All I asked was my colleagues to identify the documents they intended to use and I would work to get the Department of Justice and former President Bush to agree to waive restrictions on the documents.

Senator Feinstein secured the public release of 19 documents last year under this process and Senator Klobuchar secured the release of four documents this year. If my colleagues truly believed that other committee confidential documents should have been made public, they never told me about them and request the ones that they wanted.

Instead of scaring the American people by suggesting that we're hiding some incriminating documents, they should have made a request that I work to get the committee confidential designation removed. This year, I received no such request except from Senator Klobuchar, which was honored, and resulted in the disclosure of documents that she wanted to use during this hearing.

PROTESTER: (OFF-MIKE)

LEAHY: Mr. Chairman, you -- you stated what I did and you stated inaccurately. I think I have the right...

GRASSLEY: I said I was paraphrasing it.

LEAHY: Well...

GRASSLEY: You can correct me any way you want to.

LEAHY: ... it -- it -- it was one heck of a paraphrase. When you...

GRASSLEY: (OFF-MIKE)

LEAHY: When you speak about doing the same thing as with Elena Kagan, I was chairman when Elena Kagan was here. We had 99 percent of her records from the White House were made public 12 days -- 12 days before the hearing. With -- with Judge Kavanaugh, we have 7 percent and only 4 percent are public.

You can talk about the numbers of pages. The fact is, 99 percent for Elena Kagan 12 days before the hearing, it was all available. For Judge Kavanaugh, 7 percent and only 4 percent made public.

So, you know, if we're going to argue what was precedent, I would -- I would point out that I've -- I've been in the Senate for 19 Supreme Court nominations. What is being done here is unprecedented. And I keep coming back to the same question I asked: What are we trying to hide? What are we hiding? What's being hidden? Why not have it open like all others?

The only other time we heard a president invoke executive privilege was President Reagan during the Justice William Rehnquist hearing. And Republicans and Democrats together went to him and said, "Don't do that." He said, "OK. You're right." And he withdrew his request for executive privilege and released the documents.

I...

KLOBUCHAR: Mr. Chairman...

[10:25:00]

LEAHY: No, I -- I -- I'm just sorry to see the Senate Judiciary Committee descend this way. I've felt privileged to serve here under both Republican and Democratic leadership for over 40 years. This is not the Senate Judiciary Committee I saw when I came to the U.S. Senate.

KLOBUCHAR: Mr. Chairman...

GRASSLEY: Here -- here...

KLOBUCHAR: My name was invoked by you. Could I please respond?

GRASSLEY: After I get done.

I want to give the exact quote that I was paraphrasing. Chairman Leahy said, quote, "We have Judge Sotomayor's record from the federal bench. That is a public record that we had even before she was designated by the president. Judge Sotomayor's mainstream record of judicial restraint and modesty is the best indication of her judicial philosophy. We do not have to imagine what kind of a judge she will be, because we see what kind of a judge she has been."

And so that's why my answer to the -- the gold standard of whether Senator Kavanaugh ought to be on the Supreme Court, based upon what Democrats themselves have said is the best judge of whether you should be on the Supreme Court.

Senator Klobuchar?

LEAHY: But wait a minute.

KLOBUCHAR: Thank you...

LEAHY: You -- you -- you mentioned what I said. Let me just finish on that, on Justice Sotomayor. I did say we should look at her cases, just as we should on -- on Judge Kavanaugh's.

But -- but you neglect to mention -- carefully neglect to mention, and I think erroneously neglect to mention, that the Republicans asked for board minutes from her work at a civil rights group in the 1980s, long before she was ever even considered as a judge. You asked for that, and we got it for you. That's the difference.

KLOBUCHAR: Mr. Chairman?

(UNKNOWN): Mr. Chairman?

KLOBUCHAR: Mr. Chairman, you -- you called on me.

GRASSLEY: Before Senator Klobuchar speaks, so we have 488,000 pages of documents.

Go ahead, Senator Klobuchar.

KLOBUCHAR: Thank you very much, Mr. Chairman. A few points here.

Number one, Justice Sotomayor never worked in the White House, so none of these issues of executive privilege or other things that we've been discussing are relevant.

Number two, while I appreciate you granting my request, Mr. Chairman, on these campaign finance documents, this is all they were. This is it. This is how many pages?

Yet we have 148,000 documents that we can't talk about publicly. And I will say, they are illuminating. It shows that the nominee has a limited view of campaign finance reform. In his own words, he says that his views on the First Amendment are pure, when it comes to this very important issue. And we can talk about that more in the future.

But I do have a question, and that is that, yes I asked for these documents, but I've also joined several letters led by Senator Feinstein asking that all the documents that we have in the committee be made public, so that we can ask questions. And then finally, on my initial point that I'm so focused on, the 102,000 pages of documents from Judge Kavanaugh's work in the White House Counsel, I would like to know, Mr. Chairman, if you have another example of a time when executive privilege was invoked to block the release of presidential records to the Senate during a Supreme Court nomination.

As far as my research shows, this wasn't done in -- for Justice Kagan or Justice Roberts, and I'd like to know if you have another example of that...

GRASSLEY: (inaudible)

KLOBUCHAR: ... during a Supreme Court nomination hearing.

GRASSLEY: Yeah, it was done for Justice Roberts, and it was the solicitor general position he had.

Senator Cornyn?

KLOBUCHAR: When he was a solicitor general, that is correct. But during the time that they worked in the White House, that is my question.

BLUMENTHAL: Mr. Chairman, I'd like to bring to the attention of the chair...

CORNYN: Thank -- thank you, Mr. Chairman.

GRASSLEY: Senator?

CORNYN: I believe I have the floor, Mr. Chairman

GRASSLEY: Senator Cornyn?

CORNYN: Thank you, Mr. Chairman, for recognizing me.

I haven't been in as many confirmation hearings as some of my colleagues, but this is the first confirmation hearing for a Supreme Court justice I've seen basically according to mob rule.

We have rules in the Senate. We have norms for decorum. Everybody, as you point out, Mr. Chairman, is going to get a chance to have their say.

GRASSLEY: Yeah.

CORNYN: You've given everybody a chance to ask questions for up to 50 minutes. You've given them a chance to make an opening statement. Any one of our colleagues can step out here and talk to the press and make whatever comments they want to the press, and tell the world how they feel about this.

But the fact is, it's hard to take it seriously when every single one of our colleagues in the Senate Judiciary Committee on the Democratic side have announced their opposition to this nominee even before today's hearing.

So it's hard to take seriously their claim that somehow they can't do their job because they've been denied access to attorney-client or executive-privileged documents when they've already made up their mind before the hearing.

[10:30:00]