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At This Hour

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

Aired September 05, 2018 - 11:30   ET

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

[11:30:00]

SEN. PATRICK LEAHY, D-VT.: So -- so -- so, that bit of material about him that's marked committee confidential is now public and available? Is that what you're saying? If that's what the Chairman say...

SEN. CHUCK GRASSLEY, R-IA.: No.

LEAHY: ... we've got a whole new series of questions.

GRASSLEY: No. Not if it...

(LAUGHTER)

GRASSLEY: ... not if it's committee confidential, but you have...

LEAHY: So, it's not available?

GRASSLEY: ... you have access to it.

LEAHY: Not so that I can ask (ph)...

(CROSSTALK)

GRASSLEY: But don't forget, 80 percent of the material we've gotten from the library is -- is on the website of the Judiciary Committee. So, the public has access to it.

LEAHY: No, I -- I.

GRASSLEY: Proceed.

LEAHY: I want -- I want Judge Kavanaugh to have access so that we can ask him these questions...

GRASSLEY: Well.

LEAHY: ... under oath, and he can see them. So, I would ask the -- and (inaudible) not around, but I would ask the Chairman if he might look at some of these that are marked committee confidential which limits the ability of us to ask you, specifically, and hand you the specific e-mails.

But I would state...

GRASSLEY: Let me. LEAHY: ... on what has been public.

GRASSLEY: Let me answer that for you. There's only one Democratic senator asked for access to that. Senator Klobuchar got it. If you're interested in it, you could've been asking ever since August the 25, I believe.

LEAHY: We've been asking to have that -- those made public. And I don't -- I'm not as interested if I see this in a closed room where I can't (ph) talk about it. I want Judge Kavanaugh to see the e-mails which came from Mr. Miranda, and...

GRASSLEY: Yes, give us a citation of the documents and we'll get them for you.

BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: That testimony up there is true, 100 percent.

SEN. DIANNE FEINSTEIN, D-CA.: Can somebody read it? I can't see it. What?

LEAHY: Well. Of course, it would be helpful if we allowed the National Archives time to complete their review.

KAVANAUGH: But I just want to reassure you, senator, because you're asking important questions. I want to reassure you that what you've got up on the board is 100 percent accurate.

FEINSTEIN: Can somebody move it so we can see it here?

LEAHY: Well, I -- I am concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me. And that would contradict your prior testimony.

It's also clear from public e-mails, and I'm restraining from not going into the non-public ones, that you had reason to believe materials were obtained inappropriately at the time.

Now, Mr. Chairman, there are, at least, six documents that you consider committee confidential that are directly related to this. Just like the three documents that I shared that are already public, these other six contain no personal information, no presidential records (inaudible) restricted material.

There is, simply, no reason they can't be made public. I hope they will be before this next round. You know, it is difficult when to ask a question, I have to ask the Republicans, will you allow me to ask the question?

I, certainly, never did that. I wouldn't when I was Chairman. Now, I asked you in 2006 whether you had seen any documents relating to President Bush's NSA warrantless wire tapping program, or whether you heard anything about it.

You answered, you learned about it with the rest of us in December, 2005, when the New York Times reported it. Now, I know it's been 12 years. So, here's a video of your sworn testimony. It should be on the TV screens.

(BEGIN VIDEO CLIP)

LEAHY: Any documents relating to the president's NSA warrantless wire tapping program?

KAVANAUGH: Senator, I learned of that program when there was New York Times story -- when the reports of that program -- when there was a New York Times story that came over the wire I think on a Thursday night in mid December of -- of last year.

LEAHY: You had not seen anything or had you heard anything about it prior to the New York Times article?

KAVANAUGH: No.

LEAHY: Nothing at all?

KAVANAUGH: Nothing at all.

(END VIDEO CLIP)

LEAHY: Mr. Chair.

KAVANAUGH: Mr. Chairman, can I...

LEAHY: Can I...

(CROSSTALK)

GRASSLEY: Can I -- again, don't take this time away from him. Now, as far as I know, in 15 hearings -- so, I'm going to read something in just a minute, but preface it with this. As far as I know, in 15 hearings that I've been involved in, of Supreme Court justices, there's never been such a video shown.

[11:35:00] So, since this is presidential, I want to read this. The use of a video at a confirmation is highly irregular, but I see no reason why my colleagues can't use a video that was provided by the nominee himself in response to the Senate questionnaire.

I've been assured that the video is from Judge Kavanaugh's submission to the committee. Based on this assurance, we've allowed this video to be shown. But I want to emphasize that I expect that video to be used fairly. The video clip should not be presented in a way that deprives it of relevant context. This is consistent with requirements in federal court. That's why I will insist that Judge Kavanaugh have the opportunity before he answers this question to request if any additional video be played if it provided appropriate context.

So Judge Kavanaugh, I would ask you do you believe that more context is needed to be able to address the question?

KAVANAUGH: Well, I don't think I've heard the question yet, but I'll let you know when I hear the question.

LEAHY: Let me ask you this. I'll repeat the question I asked before. You said you heard about this with the rest of us in December of 2005. You said on there that you had no knowledge of anything related to this until the New York Times article.

Now we have a declassified inspector general report that on September '17, which was before the -- several months before the New York Times article, John Yoo issued a memo on surveillance of the White House that helped form the legal underpinnings of the NSA warrantless wiretapping program.

When you were in the White House in 2001, did you ever work with John Yoo on the constitutional implications of a warrantless surveillance program?

KAVANAUGH: We're talking about a lot of different things, Senator, here.

LEAHY: Warrantless surveillance program.

KAVANAUGH: And that's talking about a lot of different things. So what you're asking about right there was the specific -- what President Bush called the Terrorist Surveillance Program. That was his name for it.

LEAHY: Which is a warrantless surveillance program.

KAVANAUGH: Along with many others, and that's -- you were asking me about the Terrorist Surveillance Program, TSP I think you called. He -- that story was broken. That testimony's 100 percent accurate. That story was broken in the New York Times. I had not been read into that program.

And when it came in the New York Times, I actually still remember my exact reaction when I read that story. And then the president that Saturday, I believe, did a live radio address to explain to the country what that program was about. There was a huge controversy. And so, everyone was then working on getting the speech together.

And you asked me if I had learned about it before then. I said no, and that's accurate.

LEAHY: OK, when you were in the White House, did you every work with John Yoo on the constitutional implications of any warrantless surveillance program?

KAVANAUGH: Well, I can't rule that. Right in the wake of September 11th, it was all hands on deck on all fronts, and then we were farming out assignments, but we were all involved.

On September 12th when we came in -- let's just back up. On September 12th when we came into the White House, it was -- we have to work on everything. So then overtime, people figured out what issues they were going to work on. The airline bill that I was up here on September 20th when the President Bush spoke to Congress that night as you recall, and then after that we were in the meeting room together, you and I and others, working on the airline bill. But there were all sorts of other things going on. The Patriot Act was going on.

LEAHY: I know. I was involved with all of those...

KAVANAUGH: Yes...

LEAHY: ... I remember the discussions, but what I want to know did you ever raise questions about warrantless surveillance?

KAVANAUGH: I can't rule anything out like that. There was so much going on in the wake of September 11th, Senator, as you recall up here, too, but in the White House in particular and in the councils office in particular, we had eight lawyers in there -- eight or nine as I recall, and there were so many issues to consider for the president and for the legal team.

And those issues, like I said, for President Bush, every day for the next seven years was September 12th, 2001. For the legal team, there was a lot...

LEAHY: For a lot of us, it was.

KAVANAUGH: Yes.

[11:40:00] LEAHY: But I -- Mr. Chairman, I sent a letter to you along with Senators Feinstein and Durbin on August 16th of this year asking if we made documents related to this issue public.

Without them being public, it's not fair to me and it's not fair to Judge Kavanaugh that I can't hand him the actual documents which I would think would refresh his memory, and I would I ask again if we could look at the before my next turn; can we make those public?

GRASSLEY: You tell us what documents you want and I'll make them available to you, but I can say that they can be made public. Just as I said last year during Justice Gorsuch's confirmation, I put a process in place that will allow my colleagues to obtain the public release of confidential documents for use during the hearing. All I ask 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 believe that other Committee confidential documents should have been made public, they never told me about that. So...

LEAHY: Well...

GRASSLEY: ... let us know what you want, and then you can go ahead and we'll get them for you. LEAHY: I want the same thing that I requested in August -- on August 16th because it's directly relevant to Judge Kavanaugh's testimony. Directly relevant to his -- to the questions I've been asking here, directly relevant to his own e-mails with John Yoo. So I would -- before my next turn, we could take a look at that.

GRASSLEY: OK, well we'll get them for you for your next turn tomorrow.

LEAHY: Now, you said everyone agrees the pardon power gives the president absolute, unfettered, unchecked power to pardon every violator of every federal law for the president issue a pardon in exchange for a bribe. Yes or no?

KAVANAUGH: Senator, I think that question has been litigated before, and I don't want to comment about anything...

LEAHY: Let me ask you this...

(CROSSTALK)

KAVANAUGH: ... pardon. (Inaudible) scope about -- there are couple things involved in that question. One is what's the scope -- what's the effect of the pardon? And the other question is can you be separately charged with the bribery crime, both the briber and the bribee? And those are two distinct questions.

LEAHY: No, I understand.

KAVANAUGH: You'd want to keep those two questions separate in thinking about how the hypothetical...

LEAHY: Then in that, the -- Mr. Chairman, you know, I got interrupted an awful lot during my...

GRASSLEY: OK, but I...

LEAHY: ... I just want to finish this question.

GRASSLEY: But I made sure that if the timer didn't treat -- we'll give him another minute.

LEAHY: Thank you.

(LAUGHTER)

God bless you. I'll be forever thankful.

(LAUGHTER)

President Trump claims he has an absolute right to pardon himself. Does he?

KAVANAUGH: The question of self-pardons is something I have never analyzed. It's a question that I have not written about, it's a question, therefore, that's a hypothetical question that I can't begin to... LEAHY: What about...

KAVANAUGH: ... Answer in this context as a sitting judge and as a nominee to the Supreme Court.

LEAHY: And the other half of that is the obvious one. Does the President have the ability to pardon somebody in exchange for a promise from that person they wouldn't testify against him?

KAVANAUGH: Senator, I'm not going to answer hypothetical questions of that sort. And the reason -- there's a good reason for it. When -- when we get -- when judges don't -- when we decide, we get briefs and arguments of the parties, we have a record, we have an appendix with all of the information, we have amicus briefs and then I -- I never -- I never decide anything alone.

I'm in a panel of three, and if I'm confirmed to the Supreme Court I'd be on a team of nine.

LEAHY: Thank -- thank you Mr. Chairman and I hope for the sake of the country that remains a hypothetical question. Thank you.

GRASSLEY: And since I gave you an extra minute, I'm not going to let you reserve the 25 seconds.

(LAUGHTER)

LEAHY: I'm done.

GRASSLEY: Senator -- Senator Graham?

[11:45:00] GRAHAM: Thank you very much. July the 21st, 1993, I certainly don't want you to have to lay out a test here in the abstract, which might determine what your vote or your test would be in a case you have yet to see that may well come before the Supreme Court.

That was wise counsel by Senator Leahy in the Ginsburg confirmation. Very directly, did you ever knowingly participate in stealing anything from Senator Leahy or any other Senator?

KAVANAUGH: No.

GRAHAM: Did you ever know that you were dealing with anything that was stolen property?

KAVANAUGH: No.

GRAHAM: As to the terrorist surveillance program, did you help create this program?

KAVANAUGH: No.

GRAHAM: Did you give legal advice about it?

KAVANAUGH: No. GRAHAM: Thank you.

KAVANAUGH: We're referring to the same program I was talking about...

GRAHAM: Yes, yes, the one that the article was about. So a bit of a -- kind of a run through here. You're probably going to get 55 votes -- I don't know, 54 to 56 or 57, I don't know what the number will be. There are 11 undecided Senators before the hearing.

Three of them are Republicans and I like your chances. Eight of them are Democrat. You're going to play with about five or six of them, and I just want you and your family to know that in other times, someone like you would probably get 90 votes.

I want your daughters to know that what happened yesterday is unique to the times that we live in, and I want to give you a chance to say some things to the people that attended this hearing. I think there's a father of a Parkland student who was killed.

I think there's a mother of a child who has got terrible health care problems, and there are many other people here with personal situations. What would you like to say to them, if anything, about your job as a Supreme Court Justice?

KAVANAUGH: Senator, I understand the real world effects of our decisions. In my job as a Judge for the last 12 years, I've gone out of my way in my opinions and at oral arguments, if you listen to oral arguments, to make clear to everyone before me that I understand the situation, the circumstances, the facts.

For example, as I was saying to Senator Feinstein earlier in the Heller II case about the facts in D.C. And I want to reassure everyone that I base my decisions on the law, but I do so with an awareness of the facts and an awareness of the real world consequences.

And I have not lived in a bubble and I understand how passionately people feel about particular issues, and I understand how personally people are affected by issues. And I understand the difficulties that people have in America.

I understand, for example -- well to start, I understand the situation of homeless people, because I see them on a regular basis when I'm serving meals and...

GRAHAM: So tell me about that, what interaction do you have with homeless people?

KAVANAUGH: Senator I -- I regularly serve meals at Catholic Charities at 10th and G with Father John Enzler, who's the head of Catholic Charities D.C., and I've known since I was nine years old when I was an altar boy, he was at Little Flower Parish.

And what you learn when you're at -- I said I'm a Matthew 25, trying to follow the -- the lesson of serving the least fortunate among us. You know, when I was hungry, you gave me food; thirsty, you gave me a drink; stranger and you welcomed me; naked and you clothed me; sick and you cared for me, imprisoned and you visited me.

Six -- six groups that -- that's not exclusive, but that's a good place to start with your charitable works in your private time.

GRAHAM: So describe the difference between Brett Kavanaugh the man and Brett Kavanaugh the Judge.

KAVANAUGH: Well as a -- as a man, I'm trying to do what I can in community service, as a dad, as a coach, as a volunteer, as a teacher, as a husband and serving meals to the homeless. The one thing, Senator you -- you know, we're all God's children, we're all equal.

People have gotten there because maybe they have a mental illness, maybe they had a terrible family situation, maybe they didn't have anyone to care for them, maybe they lost a job and had no family, but every person you serve a meal to is just as good as -- as me or better, frankly, because they've -- what they've had to go through on a daily basis just to get a meal.

[11:50:00]

And you talk to them -- that's the other thing. When you're walking by the street, you see people -- and I understand, I'm sure I've done this, I'm not -- I don't want to sound better than someone in describing this, but you know you -- you don't necessarily look and you don't say how -- how's it going, right?

But when you serve meals to them and you talk to people who are homeless and they are just as human and just as good a people as -- as all of us, and they're -- you know we're all a part of one community. And so I think about that and you know I'm going to -- I don't want to sound like I'm -- I can always do more and more and do better, I know I fall short.

But Father John has been a big influence on that, in thinking about others. So that's -- as a -- as a person, I try to do -- Washington Jesuit Academy, so I tutor up there. I'm now on the board of Washington Jesuit Academy, that's a little different situation.

OK, those are low income boys from low income families. Tuition free school, one of these 7:30 a.m. to 7 schools, and I started tutoring up there because I wanted to do some more tutoring, and just be involved more. I mean, judging's important, but I wanted to be more directly involved in the community.

And they had tutoring -- you do all your homework there, because there was the situation -- you don't want to go home and have anything else to do. You get three meals there and you do your homework there, and to help them do their homework. And you see these great kids and they're in a structured environment and you make an effect in their lives.

And -- and like I said yesterday, the teachers and coaches throughout America, they change lives and for me to be able to participate, you know, you -- you can't change everything at once, but just changing one life one meal one day at the shelter or one -- one kid that -- that remembers something you said in a tutoring program, you know, if we all did that more -- and I fall short too, I know. And I want to do more on that front, but you can make a big difference in people's -- in people's lives.

I'd just bring that into the judging, I think I judge based on the law but how does that effect me as a -- as a judge? I think I -- first of all, just standing in the shoes of others. We could all be that homeless person, we could all be that kid who needs a more structured educational environment. And one of things I was taught by my mom, but also I remember Chris Abell, my sixth grade English teacher religion teacher and football coach and baseball coach, one of his -- and he drove me to school -- one of his -- and he's now on the board of Washington Jesuit Academy with me -- but one of his lessons in "To Kill A Mockingbird" was to stand in the shoes of others.

And I still have the "To Kill A Mockingbird" that we used in sixth grade. It's in my chambers still, the same copy. And...

GRAHAM: Is it fair to say that your job as a judge is to not so much stand in the shoes of somebody you're sympathetic to but stand in the shoes of the law?

KAVANAUGH: You're in the shoes of the law but with awareness of the impacts of your decisions.

GRAHAM: Right.

KAVANAUGH: And that's what -- that's the critical distinction. You can't be unaware. When you write an opinion, how's it going to affect people?

GRAHAM: Right.

KAVANAUGH: And understand -- try to explain. I think...

GRAHAM: Right.

KAVANAUGH: ... you know, it's explaining is such an important feature. And then when people come into the courtroom and how you treat litigants. So we are -- we're all familiar -- we've all been in courtrooms where the judge is acting a little too full of being a judge and to -- well, we've all been there. I try not to do that. Can't say I'm perfect, but I try to make sure the litigants understand that I -- I get it.

Whether it's a criminal defendant case -- we had a pro se case -- pro se case where a litigant comes in and argues pro se in our court, which rarely happens in our court where the pro se actually argues. And it was a guy who said he been called the N-word by a supervisor. And he's arguing pro se, and the question is whether in a -- single instance of the N-word constitutes racial harassment under the civil rights laws. And I wrote a separate opinion explaining yes, a single instance of the N-word does constitute a racially hostile work environment.

And I explained -- in doing that, I explained the history of racism in this country and that -- and how that word -- no other word in English language so powerfully or instantly calls to mind our country's long and brutal struggle against racism I wrote in that opinion. And I cited "To Kill A Mockingbird" in that opinion, among other things. But what I wanted to make clear by bringing this example up is I understood his situation.

[11:55:00] I tried to understand what that would -- would be like and I decided the case based on the law, but I understood and -- what (ph) the pro se litigant. The point being I always try to be aware of the facts and circumstances.

GRAHAM: Have you -- have you -- have you ever made a legal decision that personally was upsetting to you?

KAVANAUGH: Well, I'm sure I have and that's what Justice Kennedy talked about in Texas versus Johnson. That -- that case, in case people didn't know what I was referring to in Texas versus Johnson, that's the flag burning case. And Justice Kennedy is in the majority with Justice Scalia and Justice Brennan, Justice Marshall and -- and says that law against flag burning is unconstitutional under the First Amendment. And that obviously tore Justice Kennedy -- you know, it really bothered him because he's such a patriot.

But he still ruled the way he did because he read the First Amendment to compel that result and that's why wrote that great concurrence in that case. And that -- that concurrence is such a great model for judging and a great model of independence and a great model, to your point, Senator Graham, of we follow the law but we're aware -- we're aware. And you're a better judge if you're aware.

GRAHAM: Well, I would just want to say this to -- to my colleagues. Everything he said I think has been verified by the people who know him the best. I can't say I've read 307 of your opinions. I can tell you without hesitation I have not. I did not read Sotomayor opinions or Kagan's writings. But what I chose to do was look at the people who knew them the best. And I think Bob Bennett, who defended President Clinton during impeachment -- I knew him very well -- said that Brett is a judge's judge, someone doing his absolute best to follow the law rather than his policy preferences.

Brett is an all-star in both his professional and his personal life. I have yet to find anybody that I find credible, really anybody at all that would suggest that you are unfair to litigants. I have yet to find a colleague that thought you were a politician in a robe. But you are a Republican, is that true?

KAVANAUGH: I -- I register...

GRAHAM: Was a -- OK.

KAVANAUGH: Yes.

GRAHAM: The only reason I glad to hear you say that -- it makes -- makes a lot of sense, given who you work for.

KAVANAUGH: I -- I haven't -- well, I'll let you finish your question. GRAHAM: Well, you work for a lot of Republicans...

KAVANAUGH: Yes.

GRAHAM: ... like the president, who was a Republican. So...

KAVANAUGH: President Bush...

GRAHAM: Yes.

KAVANAUGH: ... I worked for, yes.

GRAHAM: Yes. So that's -- that's all fine (ph)...

PROTESTER: (OFF-MIKE)

GRAHAM: So I remember...

PROTESTER: (Inaudible) of this country is at stake!

GRAHAM: I remember...

PROTESTER: (OFF-MIKE) Workers' rights is (inaudible)!

(CROSSTALK)

GRAHAM: I'll tell you what I remember when she leaves.

So I asked Elena Kagan about a statement that Greg Craig made. You know Greg Craig by any chance?

KAVANAUGH: I -- I've met him. I haven't seen him in many years, but yes.

PROTESTER: (Inaudible) power to stop this. (Inaudible).

GRAHAM: He was the -- one of the defenders of President Clinton during the impeachment hearing.

PROTESTER: (Inaudible) and you have the power to stop this. (Inaudible).

And somewhere in here I've got Greg Craig's statement about Kagan.

(UNKNOWN): (OFF-MIKE)

GRAHAM: No, I'm looking for Greg Craig's statement. Here we go. Here's what -- "Kagan was a progressive in the mold of Obama himself." "Elena Kagan is clearly a legal progressive and comes from the progressive side of the spectrum," according to Ronald Klein. The first was Greg Craig. And I had an exchange with Justice Kagan when she was the nominee. I'm not trying to trick you. I don't have anything on Greg.

He said on May 16th that you're largely progressive in the mold of Obama himself. Do you agree with that? Mrs. Kagan: "Senator Graham, you know in terms of my political views, I've been a Democrat all my life. I worked for two Democrat presidents, and that is what my political views are." And I asked would you consider your political views progressive, Mrs. Kagan: "My political views are generally progressive," which is true. I really appreciate what she said, because I expect President Obama to go to someone like Elena Kagan, who is progressive, shares his general view of judging, and who happened to be highly qualified.

Sotomayor -- President Obama nominated Sotomayor because he wanted someone whose philosophy of judging was his, which, as applied to the law and Constitutional principles, was -- be ready to adopt them to a modern context.