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CNN NEWSROOM

Brett Kavanaugh Supreme Court Confirmation Hearings. Aired 3- 3:30p ET

Aired September 5, 2018 - 15:00   ET

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


[15:00:03]

SEN. MIKE LEE (R), UTAH: Great. Thank you very much, Judge.

My time is expired. I am not the chairman of this committee, even though I'm playing him on TV.

(LAUGHTER)

LEE: I understand that, under the previous ordered entered before he left, we're supposed to take a 10-minute break. We will stand in recess for 10 minutes.

WOLF BLITZER, CNN ANCHOR: All right. I'm Wolf Blitzer, alongside Jake Tapper. We're live here in Washington. This is CNN's special coverage of the confirmation hearing for the U.S. Supreme Court nominee Brett Kavanaugh.

JAKE TAPPER, CNN ANCHOR: Judge Kavanaugh has been grilled by some senators on issues ranging from abortion rights to gun control to the limits of presidential power.

He's been complimented by other senators. Kavanaugh refused to say whether a sitting president can be forced to respond to a subpoena, but he says not even the executive branch of government is exempt from the law. Take a listen.

(BEGIN VIDEO CLIP)

BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: No one is above the law in our constitutional system. Federalist 69, Hamilton makes clear all the ways that the executive branch, as designed by the framers of the Constitution, was different from the monarchy.

Under our system of government, the executive branch is subject to the law, subject to the court system, and that's an important part of Federalist 69. It's an important part of the constitutional structure.

(END VIDEO CLIP)

BLITZER: Judge Kavanaugh says the Roe vs. Wade decision legalizing abortion rights for women here in the United States is entitled to respect. He defended his dissent in a case upholding a ban on semiautomatic weapons in the District of Columbia and he denied any involvement in the enhanced interrogation program targeting terror suspects.

Let's bring back our reporters, analysts, and commentators.

And let me get your thoughts.

Jeffrey, how is he doing so far?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It certainly seems like he's doing fine.

Certainly, the most aggressive questioning he's gotten so far is from Sheldon Whitehouse, the senator from Rhode Island, who was after him on the subject of dark money, of campaign contributions, who was talking about, you know, money that was spent on behalf of his confirmation, outside groups putting forth money.

Kavanaugh said, you know, essentially, it was all news to me.

I don't think it's the kind of questioning that's going to change a lot of votes, but it is an important question about American politics, you know, why we don't know the sources of the money that's being spent on political issues.

But, you know, the Republicans have been serving up softballs. There was kind of -- excuse me -- an endearing nerd-fest between Mike Lee of Utah, someone who knows a lot of constitutional law, and Judge Kavanaugh about what their favorite Federalist Paper was, which I think is actually ratings magic for CNN.

(LAUGHTER)

BLITZER: Yes.

(CROSSTALK)

BLITZER: We all want to talk about that.

(CROSSTALK)

TAPPER: He actually -- Senator Lee actually compared choosing among the Federalist Papers to choosing between your children.

TOOBIN: Yes. He did, he did.

(CROSSTALK)

TOOBIN: I got to give him a nod for that.

BLITZER: Joan Biskupic, you have been covering the Supreme Court for a long time. How's he doing?

JOAN BISKUPIC, CNN LEGAL ANALYST: He's still staying on message with his talking points. Very disciplined. It's starting to get a little rougher with some of the other Democrats on the committee.

In addition to Sheldon Whitehouse, Senator Durbin really pressed him on his dissent in the abortion case. That's obviously topic A for these. And I think with Senator Klobuchar and Harris and Booker coming down the line, we're going to see a little bit more give and take.

But he was also asked about the role of the Federalist Society in choosing him for this and sort of said, you know, the president chose me. I have said, President Trump chose me.

He really wanted to make sure that he separated himself from that role in some ways.

TAPPER: Senator Santorum, if I could bring you in, one of the points that Senator Durbin was trying to make on the dissent idea was that Brett Kavanaugh, Judge Kavanaugh, says he respects precedent, but in this case, he was not siding with precedent, and there were a number of judges that ruled against him.

How did you take his answer?

RICK SANTORUM, CNN COMMENTATOR: Yes. And Judge Kavanaugh said, you're wrong, that you have to read section 2B of the decision, not just 2A. And if you read that, I am absolutely -- in fact, I have got it right, they have got it wrong.

He's not making the argument that I disagree with the precedent. He's saying, I understand the precedent better than the judges who decided. And that's a legitimate -- I mean, that's a legitimate argument.

TAPPER: And that ultimately when it gets up to the Supreme Court, he will -- if it does, he will be found correct, is his argument.

(CROSSTALK)

SANTORUM: He cited another case where he was -- you know, he ruled one way and all the other judges ruled -- and then the Supreme Court later...

(CROSSTALK)

TOOBIN: One of the things that's true of all these confirmation hearings is that the nominees know a lot more constitutional laws -- know a lot more constitutional law, know a lot more about these cases than the senators do.

And the senators get about two questions in to the details, and the nominee starts telling -- talking about the case in a way that the senator obviously doesn't know enough.

[15:05:03]

SANTORUM: And the senator wants to move on and ask another question because he's out of his depth.

TOOBIN: Exactly. Yes.

(CROSSTALK) BISKUPIC: Except, on the abortion one, senator Durbin did say, Jake, to your point, that if you followed that dissent, you would be adding perhaps another requirement on a woman who was seeking abortion.

So at least there was a little bit more. I think we're going to see that down the line.

JEN PSAKI, CNN POLITICAL COMMENTATOR: Which is the root of the issue, because if you look at these cases when they're happening in states, it's putting more requirements on the doctors and making it more difficult.

So it isn't an overarching ban, which obviously is what a lot of the groups talk about and fear. But the fact that pro-life advocates, including my neighbor here, are not outraged by anything he said tells you everything you need to know.

SANTORUM: Can I make a point on that? Because I actually was -- me sitting here listening to Judge Kavanaugh, I was a little concerned about some of the things he said as a pro-life person.

And that is, you know, he made an extra effort to talk about how Casey not only -- they looked -- Casey at Roe and reaffirmed Roe.

(CROSSTALK)

TAPPER: The Supreme Court decision, the Planned Parenthood decision.

(CROSSTALK)

SANTORUM: That Casey looked at this, and that's a really big deal.

And the fact that he went to it over and over, now, that may be a smart strategy on his part, to assure Susan Collins and Lisa Murkowski and others, or it may be a signal that many who had concerns about Judge Kavanaugh is that he's more like a Roberts who will sort of chip away at things, but he's not like a Thomas, who will go right at them.

(CROSSTALK)

SANTORUM: We might see that.

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: The other thing that interested me -- and Whitehouse, as you were saying, was really aggressive today.

And he wanted a guarantee that he would keep preexisting conditions in the Affordable Care Act. And we know that there's this controversy with the administration, and the administration is refusing to defend...

(CROSSTALK)

PSAKI: And there's also a legal case being...

TOOBIN: It starts today, today. (CROSSTALK)

PSAKI: Right now. Right now.

BORGER: Exactly, it starts today in Texas. And preexisting conditions is clearly one of the things that Democrats are talking about on the campaign trail, because they know what kind of resonance it has.

And there was Whitehouse saying to a potential Supreme Court nominee, I need a guarantee from you that you're not going to take away preexisting conditions, which, after all, is the current law.

PSAKI: But this is also a topic, I'm actually surprised and a little disappointed that Democrats have not focused more on health care, because this is the core issue where there are legitimate questions, but also it's a huge political issue. It is the best political issue for Democrats.

(CROSSTALK)

SANTORUM: He can't answer it.

(CROSSTALK)

PSAKI: The point is, there are legitimate questions in a hearing like this about how he would approach this.

But at the same time, for people watching at home, they care deeply about health care being taken away. And so I hope that the next Democrats that come up talk about this quite a bit more.

(CROSSTALK)

BLITZER: Very quickly.

TOOBIN: Just to elaborate a tiny bit, there is a lawsuit that is being argued today in Texas, where the Trump administration and 20 Republican attorneys general are arguing for a court to take away preexisting condition protection from everyone. That's a big deal.

(CROSSTALK)

SANTORUM: They're arguing to invalidate Obamacare.

TOOBIN: Exactly. Yes.

(CROSSTALK)

SANTORUM: So, you're making it sound like, oh, they're just going after preexisting conditions.

(CROSSTALK)

TOOBIN: And all those other terrible things in Obamacare, like staying on your parents' insurance until you're 24 out the door with that.

(CROSSTALK)

SANTORUM: They're going after all the other insurance regulations that make this the disaster that it is.

TOOBIN: Exactly.

SANTORUM: So, yes, they are going after all those things.

TOOBIN: So, we agree, Rick.

(CROSSTALK)

BLITZER: And as these cases unfold right now, that explains why he's not going to answer these questions.

These are hypothetical questions that may come before the Supreme Court when he's a justice of the Supreme Court, and he's going to say what other Supreme Court justices during their confirmation hearings have said. I can't answer that question right now. So, they can -- Democrats can press and press and press, but he's not going to answer.

(CROSSTALK)

PSAKI: But they want people to say tune in, this matters. Elections matter. Who we nominate for courts matters. This is the issue that they should be doing it on.

BORGER: And it also helps explain, I think, why the president today suddenly out of nowhere started raising Social Security and Medicare, saying we're going to protect your Social Security and Medicare.

Everybody understands who's running for office how important this issue is to the American people. And so Trump started talking about it today, because he says -- you know, he wants to talk about progressive Democrats and what they're going to do.

And in this hearing, Whitehouse knew exactly what he was doing on this particular issue.

BLITZER: Yes, he's not going to protect Social Security and Medicare if the budget deficit is a trillion dollars a year, which it looks like it's going to be next year. But that's another issue we're not going to get to.

I want to get back to the other breaking news we're following today. The president once again weighing in on the explosive new Bob Woodward book. He calls it fiction and tries to hit Woodward's credibility.

[15:10:03]

In more new sound, he was asked about claims that the White House staff took papers from his desk to -- quote -- "protect the country."

Let's listen. (BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We have a deal with South Korea. I read another phony thing in the book about a trade deal that certain people didn't want me to look at.

We have made a deal with South Korea. It may be signed during the United Nations conference in a couple weeks. The deal was done. It's been done with South Korea for a long time. It's been done for about two months. And we will do a ceremonial signing over the next very short period of time. But that was another thing in the book that was just totally false. And there was no...

(END VIDEO CLIP)

BLITZER: Jake, I'm anxious to get your thoughts. This is 24 hours now. The story exploded with the new book. And now the president is reacting very, very vociferously.

TAPPER: So, just to explain to our viewers what he's talking about there and what he's actually not talking about, Gary Cohn, who is the former director of the National Economic Council, in the book told an associate that there was a document that would have undone a treaty between the United States and South Korea that Gary Cohn felt was important for the national security of the United States.

It allowed -- it kept forces and equipment in South Korea that would allow the United States to detect the launch of a North Korean missile within seven seconds, as opposed to 15 minutes, from detecting equipment in Alaska or near Alaska.

And that's why Gary Cohn, according to this associate in this Woodward book, takes the document away, so that Trump doesn't sign it, because he says it will be bad for national security.

I don't know what that document has to do with the new trade agreement, if anything. But that's what President Trump is perhaps conflating when he pushes back on it. I don't know if this is going to work for President Trump just to say it's fiction, it didn't happen, when Bob Woodward is one of the most respected reporters in America today and has a long track record of covering presidents and writing books that, you know, become the first chapter of history.

I'm sure it will work for his base. I'm sure it will work for his supporters, the people who say don't -- who when President Trump says don't believe what anyone else is telling you, only believe me, I'm sure it will work.

But in terms of independent voters, swing voters, I'm not sure that that will be effective.

BLITZER: And Jamie Gangel, our correspondent, who's actually read the book, she got another statement from Bob Woodward today saying he sticks by his reporting.

BORGER: Yes, I think that's the only statement he's made, which is that he stands by his reporting.

I mean, all of us who have known Bob Woodward over the years know how meticulous a journalist he is and that I don't think he's one of these gotcha people who hides things from the people he's interviewing. He will say to you, I have learned this, I have learned this, and I have learned this. What do you have to say about that?

And maybe that's why the president is so upset that he wasn't interviewed, because he might have had some answers and what his staff was trying to do was probably protect him.

TAPPER: So, we're going to go back to the Kavanaugh hearing.

Senator Amy Klobuchar, Democrat of Minnesota, is asking questions right now.

(JOINED IN PROGRESS)

SEN. AMY KLOBUCHAR (D), MINNESOTA: ... time as staff secretary?

KAVANAUGH: Senator, I'm not going to take a position. That's, in my view, a decision for the committee, in consultation or discussion with the executive branch and the....

KLOBUCHAR: So you're not going to say whether or not you have a problem with it?

KAVANAUGH: I'm not. I don't think it's my role to say one way or another, at least as I analyze the current situation. That's a decision for the committee and the executive branch and the Presidential Library, President Bush's documents, ultimately.

KLOBUCHAR: Since, right now, we're not able to review those documents, in addition to the 102,000 that the White House has deemed theirs that we're not able to see and asserted a privilege that's never happened before in a Supreme Court nomination hearing, is there anything in those documents or in the staff secretary documents that you think we'd like to know that's relevant to some of the topics we have discussed today?

I mean, you must know what's in them.

SEN. CHARLES GRASSLEY (R), IOWA: Before you answer, without taking time off of her time, it's incorrect that, committee confidential, no senators can see those records. Any -- all 100 senators can see those records.

KLOBUCHAR: Right.

GRASSLEY: In fact, we set up separate terminals so people can go there. We haven't had very many people take us up on the offer.

KLOBUCHAR: OK, but, Mr. Chairman, not to go into my time either, to respond to you, I wasn't talking about those 189,000 documents.

I was talking about the ones that we're not allowed to see at all from the staff secretary time, as well as the 102,000 that the White House has asserted privilege on that we're not able to see. So, I'm not even talking about the 189,000. OK. Thank you.

GRASSLEY: I stand corrected.

KLOBUCHAR: All right.

So, again, I ask if there's anything in those documents you think would be relevant to our discussion here.

[15:15:05]

KAVANAUGH: Senator, those documents are President Bush's documents, and for the committee and the Bush Library and the executive branch to negotiate about.

And, as was discussed, I have 12 years of a judicial record, and this is not a new issue. This is an issue that came up in Justice Scalia's hearing and Chief Justice Roberts' experience, with the S.G. documents with Justice Kagan.

KLOBUCHAR: That was our solicitor general, for the viewers out there.

I'm talking about the ones in the White House time.

KAVANAUGH: Well, I guess I'm not seeing a distinction. They're both executive branch documents. So, there's one executive branch.

KLOBUCHAR: I think one is involving the ongoing solicitor general.

But I have just one more question on this line. You have just said that rushed decisions aren't always the best in answer to the discussion with Senator Lee.

And you think a good judge would grant a continuance to someone who just received 42,000 documents on the day before the start of a trial?

KAVANAUGH: I'm sorry. I'm not -- that's a decision for the committee, and I'm not familiar with the circumstances of the document.

On the solicitor general documents, I just want to say one thing. With Chief Justice Roberts, it was not active cases. That was four years of his documents from the time he was solicitor general from 1989 to 1993.

He was nominated in 2005. It's my understanding that those documents -- so my only point is, it's not a new issue, but it's also not for the nominee to decide, because they're the president's, former president's documents.

KLOBUCHAR: Why don't we move on to the executive power issues?

And, yesterday, I mentioned your submission to the University of Minnesota Law Review. We thank you for making our law review so famous over the last month or so. In that article, you said that a president should not be subject to

investigations while in office. You said in our meeting that Congress would likely act quickly if the president does something, in your words, dastardly, a word you also used in the article.

And I'm struggling with the practical implications of that. Is it -- what about a president who commits murder or if she jeopardizes national security or if he obstructs an investigation or a white- collar crime? How do you differentiate between these crimes, when you characterize them as dastardly?

KAVANAUGH: So I think there's several issues going on with that question, Senator.

The first thing I want to underscore is that what I wrote in the Minnesota Law Review was when -- in 2009, when President Obama was president, or becoming president, was thoughts on a variety of topics reflecting on my experience.

KLOBUCHAR: I just want to pick up the tempo a little with my questions, because I have so many of them. Could we get to that point about the dastardly, if there's a way to differentiate?

KAVANAUGH: Yes, but just to underscore, it's real important. That was a proposal to be considered. It was not a constitutional position. I did not take any constitutional position on the issues you're raising.

I want to underscore that. If a constitutional question came to me, I would have an open mind and decide that. On your point...

KLOBUCHAR: But there isn't any clear text in the Constitution that speaks to the question. So, instead, these are your own recommendations, based on your own views and experience. Would that be a fair characterization?

KAVANAUGH: But there are two different things going on. The one is about special counsel investigations, for example, and -- or criminal investigations or civil lawsuits.

And that's a question for Congress to consider whether they want to supplement the protection provided by Clinton vs. Jones, because there was a lot of criticism of Clinton vs. Jones. The second question, getting right to your point, is, what is an impeachable offense?

And that's actually a decision for you, not for me, and because the House and the Senate...

KLOBUCHAR: But I'm just figuring out how -- whether we know something is dastardly or not, if we can't even investigate it.

KAVANAUGH: Well, the -- that is -- I think I'm going repeat, that's a question for the -- you're asking for what is a high crime or misdemeanor?

KLOBUCHAR: I'm asking about your position that you have stated in this law review article that a president should not be subject to investigation while in office.

KAVANAUGH: The dastardly comment...

KLOBUCHAR: Are you -- just to -- you're only saying they should be subject to investigation as part of an impeachment, and that there's no other investigation that could occur? Is that where...

KAVANAUGH: No.

I was -- first of all, on constitutional position on criminal investigation and prosecution, I did not take a position on the constitutionality, period.

On the idea that I talked about was something for Congress to look at, if it wanted. So, that's point one. Point two is the idea that what is an impeachable offense. And that really is a question for the House and the Senate.

KLOBUCHAR: Let me move on.

This is about actual opinions, and really along the same lines. And I know Senator Coons is going to talk to you about the special counsel statute. And we're very concerned about that.

[15:20:07]

But in the Seven-Sky v. Holder case, I quote -- this is you -- "Under the Constitution, the president may decline to enforce a statute that regulates private individuals when the president deems a statute unconstitutional, even if a court has held or would hold the statute un -- statute constitutional."

And so then you told me when we had the talk in my office that you attempted to clarify your views two years later in the Aiken County case. But it seems inconsistent to me.

So is it the case, your views, as expressed in actual opinions, not law review articles, that a president can just ignore a law until a court upholds it, like you said in Aiken county, or that a president can continue to ignore a law even after a court upholds it, like you said in Seven-Sky?

KAVANAUGH: So, ignore is not -- the concept there, as I think we discussed when we met -- and we had a good back and forth on that -- was, the concept is prosecutorial discretion.

And that's the concept I referred to in the Aiken County decision to explain the footnote you're referencing. Excuse me.

And prosecutorial discretion is, of course, firmly rooted. United States vs. Richard Nixon case says the executive branch has the absolute, exclusive authority and absolute discretion whether to prosecute a case. That's an exact quote from the United States vs. Richard Nixon.

And then Heckler v. Chaney says that that also applies in the civil context. And the limits -- so, prosecutorial discretion is well- recognized. In other words, the U.S. attorney's office might prosecute gang violence, but let low-level marijuana offenses go in terms of an exercise of prosecutorial discretion.

KLOBUCHAR: But do you -- so you -- if a court has held a statute constitutional, do you believe that a president should have to enforce it?

KAVANAUGH: So, for example, let's talk about, for example, the marijuana laws.

Those are constitutional, but a U.S. attorney, or the attorney general, could say, we're not going to devote our resources to low- level marijuana offenses. Those are perfectly constitutional.

KLOBUCHAR: Let me try one other example with you, the Texas case on preexisting conditions.

The administration has taken the position that that is unconstitutional, that part of the Affordable Care Act down in the Texas case, taking the position that you could actually throw people off of their insurance if they have a preexisting condition.

So let's say that that law is found to be constitutional. Could the president choose not to implement the part of the law providing protections for preexisting conditions?

KAVANAUGH: Senator, that's a pending case, so I cannot talk about it.

KLOBUCHAR: OK.

This is just my concern, because of this expansive view of executive power, where it brings us and where we end up.

I want to move on to some consumer issues. In 2016, you wrote an opinion which was later overturned by the full D.C. Circuit in which you found the Consumer Financial Protection Bureau unconstitutional.

The majority recognized that millions of people were devastated by the financial crisis, and they upheld this bureau. And we know now, in real time, the bureau has helped about 30 million consumers obtain more than $12 billion in relief. But you dissented in the case.

And I want to talk about the consequences of this legally. I know you focused on the bureau structure. We talked about that. You looked at the relevant history and you said that agencies like the CFPB, the Consumer Financial Protection Bureau, amount to a headless fourth branch of our government and that they -- quote -- "pose a significant threat to individual liberty" -- unquote.

So does it follow that you think that other independent agencies are also constitutionally suspect?

KAVANAUGH: So, the Supreme Court has, of course, upheld since 1935 Humphrey's Executor decision that -- the concept and practice of independent agencies. What -- on the CFPB decision, the structure of that agency deviated

from the traditional historical practice of independent agencies.

KLOBUCHAR: You think the Humphrey's case was -- that was 80 years ago was correctly decided?

KAVANAUGH: It's a precedent of the Supreme Court, and it's been reaffirmed many times.

But on that CFPB case, I need to get this out, which is I did not say that the agency could -- had to stop operating. It could continue operating, and it still operates. What my constitutional concern was, was the structure with the single member head, which had never been done before for an independent agency of that kind.

And my remedy would not have been to invalidate the agency at all, but would have been to make that person removable at will. And then you could have, if you wanted, amended the statute to have a multimember agency.

[15:25:05]

KLOBUCHAR: But it also concerns me because other agencies, like, say, the Social Security Administration, which you note in the dissent, in the opinion, they're also just headed up by one person. Right?

KAVANAUGH: Well, the...

KLOBUCHAR: So, then, does it follow that that agency as well would be unconstitutional?

KAVANAUGH: With the -- again, Senator, my -- go from the back door, which is the remedy, if there's a problem, is not that the agency has to stop operating.

The remedy is that the person, a single person would be removable at will, instead of for cause. But the agency would continue to operate and perform its enforcement...

KLOBUCHAR: But wouldn't have anyone heading it up?

KAVANAUGH: No, it would have a single -- single person heading it up, but removable at will in the case of the CFPB.

So the agency...

(SHOUTING)

KLOBUCHAR: And I would like...

(SHOUTING)

KLOBUCHAR: I want to turn to what the majority felt about your dissent. And I think they recognized that the dissent would threaten many, if not all, independent agencies.

I think they specifically mentioned the FTC. And I would add other ones like the Federal Reserve, Securities and Exchange Commission.

Does it follow that you think these agencies are unconstitutional?

KAVANAUGH: No, I didn't say -- I didn't say anything remotely like that, respectfully, Senator, in the case. All I was talking about was a single-headed independent agency.

KLOBUCHAR: But that's like Social Security.

KAVANAUGH: But the FEC, the FTC, those are the traditional, the FERC, the NLRB, are all multi -- the Fed -- multimember independent agencies.

And so those agencies are all the traditional Humphrey's Executor agencies. And the concern I explained with the single-director independent agency goes back to your point about Federalist 47, which is if you have an independent agency that has -- is completely unaccountable to Congress or -- unaccountable to Congress or the president, and it's one person in charge, that becomes an extremely powerful position.

KLOBUCHAR: OK. But Social Security has been like that for a long time.

And so my issue is, when we were talking about executive power, you talked about how Congress has to step in, right? That's a lot of the argument you have made to some of my colleagues, Senator Sasse, this argument Congress has to step in.

But in this case, Congress stepped in. Congress said, we had this major financial crisis. That's why we started this agency. We have done this. And then you come in, in a very -- a minority opinion here, and you say that it's unconstitutional.

And I would throw another Federalist Society back at you, Federalist quote. You quoted Hamilton yesterday from Federalist 83, when he said the rules of legal interpretation are rules of common sense. Right?

KAVANAUGH: Yes.

KLOBUCHAR: OK.

(CROSSTALK)

KLOBUCHAR: All right. So it just doesn't make common sense to me that we would throw an agency out like that or even the head of it.

KAVANAUGH: But I didn't.

KLOBUCHAR: You're basically putting your judgment in the place of Congress.

KAVANAUGH: But I didn't throw the agency out. I said the agency could continue operating as it was. The only change would be, instead of being for-cause removal, it would be at-will removal. That was the only change. There was a judge, not me, on our court who

said, because of that constitutional flaw, the whole agency had to stop operating. I specifically and explicitly rejected that as a remedy and said, no, the agency can continue operating and doing its important consumer functions.

KLOBUCHAR: OK. But let's go to one where you actually did throw out the rules. And that's net neutrality, right?

And that is, in my mind, a bedrock of a free and open Internet, allowing consumers and small businesses to have an equal playing field.

But in U.S. Telecom Association v. FCC, in your own opinion, you went out of your way to dissent against the protections. This was the full D.C. Court against you. And the rules were uphold by a panel of judges appointed by presidents from both parties.

And here you relied on something else that you came up with called the major rules doctrine. And I know it's been mentioned in dicta in a 2015 case, but in claiming that the FCC lacked authority to issue net neutrality rules because they were, in your words, major.

So, again, it feels to me like Congress setup the FCC, and the FCC is doing their job in a really complex policy matter. They put forward these rules on net neutrality. And then you insert your judgment to say they're unconstitutional.

So, tell me why I'm wrong.

KAVANAUGH: The major rules doctrine or major questions doctrine is rooted in Supreme Court precedent, and, therefore, as a lower court judge, I was bound to apply it.

It was applied by the majority opinion in the Brown & Williamson decision. It's -- the godfather of the major rules or major questions doctrine is Justice Breyer, who wrote about it in the 1980s as a way to apply Chevron.