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

Aired September 6, 2018 - 11:30   ET



KAVANAUGH: almost every member of the Committee, a lot of the senators, a lot of you in the meetings told me issues you were interested in. I think your staff was probably talking to...

LEAHY: Has anybody said to you, for example, Senator Leahy's staff is asking him to do this at the hearing tomorrow?

KAVANAUGH: Well, I think you, yourself, what you were going to ask. So I...

LEAHY: No, I tried to give you a good heads up, and I appreciate the meeting, but has anybody else told you this is what Leahy's staff is asking him to ask at the hearing tomorrow?

KAVANAUGH: Again, I think this might be a different kind of process because you all were very transparent when I met with you. I'm looking around and saying, "here's what I'm focused on and here's what I'm going to ask you at the hearings," and it's turn out you were telling -- you were accurately telling me that your concerns for...

LEAHY: And you're saying that's normal.


LEAHY: But did anybody hand you anything marked "highly confidential"...

KAVANAUGH: For this...

LEAHY: ... about any one of these senators?

KAVANAUGH: No, I'm not remembering anything like that, but you all did talk about the issues. In other words, there were no surprises. Well, there are not no surprises, but there are -- you know, you gave me basic concerns and issues you raised...

LEAHY: I want to make sure we're clear on this. Nobody handed you something marked "highly confidential", but that is the material you received from Manny Miranda. For example, on July 18, 2002, days before an extremely controversial hearing for this circuit nominee, Priscilla Owen, Mr. Miranda sent you an email with the subject line "highly confidential." Informed you that Senator Biden's staff was asking him not to attend the meeting that day.

On March 18, Mr. -- 2003, Mr. Miranda sent you several pages of talking points that were stolen verbatim -- stolen verbatim for Democratic files. The talking points revealed arguments Democrats were making on another controversial nominee, Miguel Estrada. The subject like of the email stated it was not for distribution, meaning Mr. Miranda was asking you not to share the information. This has now been, as of 3 o'clock this morning, made public.

So yesterday when I asked you about these specific events, you said you didn't have any recollection. So I'm not going to ask if you remember receiving this email, I'm going to ask you this. Why would you ever be asked to keep secret Democratic talking points if they were legitimately obtained?

KAVANAUGH: I am looking at these, Senator, and it says, for example, it looks like that Biden's staff is asking him not to attend the hearing. I don't know why that...

LEAHY: But look how you received it.

KAVANAUGH: I know, highly -- I don't know why that's even confidential because...

LEAHY: Whether it is or not, would you consider that somewhat unusual to be receiving from Republican staff member something marked highly confidential, telling what he's found out the Democrat's going to do?

KAVANAUGH: Well, as I explained yesterday, Senator, my understanding of this process is that the staffs do talk with one another, that they're not camps with no communication. And that was my experience when I worked in the White House.

And so, this -- it looks like Biden's staff is asking him not to attend the hearing would have been pretty standard kind of information that would be...

LEAHY: Well, not really. You read this. I would be amazed if somebody handed me a memo saying this is a confidential memo Senator Grassley's staff has prepared for him. And no, I would not read it. I'd be on the phone immediately to Senator Grassley saying I'm bringing something over that just arrived to me. Would you take a look at it.

But you received on July 28, 2002, and email from Manny Miranda that said, "my staff distributed a confidential letter to Democratic counsels, not to Republicans." Mr. Miranda said, "I received that letter in the strictest confidence."

You were asked explicitly by Mr. Miranda to take no action on the email without his -- his further instructions. You never asked him how he obtained the letter sent in strict confidence to me.

And then July 30, 2002, you received an email from Miranda saying they had on 100 percent info that I was going to be in a meeting about a controversial nominee. And then further on August 13, 2002, emailing obviously taken from my internal emails what I was going to do. [11:35:00]

Did any of this raise a red flag in your mind?

KAVANAUGH: It did not, Senator, because it all seemed consistent with the usual kinds of discussions that happen. And sometimes people do say things of here's what my boss is thinking, but don't share it around. I mean I must've had so many conversations in the course of my life like that where someone's saying like that about something. In other words, trying to give you a heads up on something. And that just seems standard Senate staff. So the direct answer to your question is for example Biden -- it looks like Biden's staff is asking him not to attend the hearing. That wouldn't have raised anything at all for me other than...

LEAHY: Not even where it came from? On June 5, 2003 you received an email from a Republican Senate staffer with a subject line: "spying." That is not overly subtle. This staffer appears in over 1,000 documents we received together with both of you and Mr. Miranda. She says she has a mole for us and so forth. None of this raised a red flag with you?

KAVANAUGH: It did not, Senator. Again, people have friends across the aisle who they talk to -- at least this was my experience back then; maybe it's changed. And there was a lot of bipartisanship on the committee. There was a lot of bipartisanship among the staffs. There were a lot of friendships and relationships where people would talk to -- oh, I've got a friend on Senator Kennedy's, Ted Kennedy staff, or I have a friend on Senator Hatch's staff or I have a friend on Senator Specter's staff. That kind of conversation and information sharing was common. So did it not raise red flags.

LEAHY: Judge, I was born at night, but not last night. And if I had something that somebody sent -- we've stolen this, or don't tell anybody we have this, I think it would raise some red flags.

Now we only have a fraction of your record and I do thank the Chairman for opening fees up at three this morning. But as you know, the president has asserted executive privilege -- the first time we've had to face this up here on a nominee from either Republicans or Democrats.

Of 102,000 pages of material -- 102,000 from just your time in the White House. That includes a lot on judicial nominations. Can you confirm for me today that in that 102,000 pages that there are no emails from Mr. Miranda marked highly confidential or do not share or take no action on this, describing what he has found out the Democrats are thinking?

KAVANAUGH: Senator, I am not involved in the documents process, so I don't know what's in them.

LEAHY: Well, that is convenient. But we don't know what's in them either because we've never had so much withheld before. We don't know what's in all of the documents. They're still being gone through by the archives because this is being rushed through. We don't get a chance to see them.

That's not fair to us and frankly, Judge, it's not fair to you. You've probably been told you have the votes to be confirmed so you don't have to care but I care. I care about the integrity of the Supreme Court. I care about who's on there. I think you should care of what's in that just as we should care what's in it.

There are even more documents than I had time to discuss today. I find it impossible to reconcile what we're regularly being told that your testimony -- that you received nothing stolen, had no reason to suspect anything was stolen when frankly as we now know Republican staffer Manny Miranda stole things and some of the things he stole went directly to you.

[11:40:00] Let me ask you another one. You testified in 2004 that aside from participating in a moot court argument you did not work on the nomination of Judge William Pryor. Now he was a controversial nominee, called Roe versus Wade the worst abomination in the history of constitutional law. He argued that a constitutional right to same- sex intimacy would logically extends to activity like necrophilia, bestiality, pedophilia. You said you didn't work on his nomination personally, but you did participate in the Pryor working group, did you not?

KAVANAUGH: We all met -- just so you know the process, there was something called the White House judicial selection committee. And Judge Gonzales, the Council to the president chaired that committee. That started immediately after President Bush came into office in 2001. And so we would meet with memos and individual members of the staff would be assigned to different...

LEAHY: Did you interview William Pryor?

KAVANAUGH: I don't believe so. It's possible but I don't believe so. But if I did it would've been part of the general process where people came in.

LEAHY: I'd put it in the record or Exhibit C which said you did interview him.

KAVANAUGH: It's possible. We interviewed hundreds of nominees, as I said, Senator. And we met every week for several years to go over nominees and we worked closely with the home state senators. I had various states for District Court. I had Illinois, I had California I worked on with Senator Feinstein and Senator Boxer's staff, Maryland Senator Sarbanes and Senator Mikulski. But then we would sit in sometimes on interviews of other people who came in and then we would meet and go over the memos. Then we'd meet with the president. We met every week with the president before September 11. After September 11 those meetings became less frequent.

LEAHY: You had recommended him internally for the 11th Circuit seat, had you not?

KAVANAUGH: I can't -- I have no reason that I wouldn't have recommended him because he was a highly qualified attorney general of Alabama and Senator Sessions of course knew him well and he was well respected.

LEAHY: The only reason I ask was one of the emails that we have up here says "Brett, at your request -- at your request I asked Matt to speak with Pryor about his interest."

I'm not asking these questions to get you in a bind, Judge. I'm asking them because it is so easy on these hearings to say I don't remember and often times that's the case. But you mentioned Mr. Gonzalez. He had difficulty remembering when he came here.

He had one hearing where so that he wouldn't have that problem I gave him I think 35, 45 of the questions ahead of time. On every one of them he said I don't remember, I don't recall. And then every question -- almost every question asked by both Republicans and Democrats said, I don't recall, I don't remember.

Shortly after that he went to private practice. But the -- I think it -- I think it is so difficult when -- that you don't remember the things done by somebody who I think on both sides of the aisle we would agree is one of the most egregious breaches of committee confidentiality when Manny Miranda stole material from here -- stole it -- to send it to you and others at the White House.

You have no recollection of that?

KAVANAUGH: I obviously recall the e-mails -- or I've seen the e-mails -- but your question -- your larger question was, did that raise a red flag? And I've answered that; no.

HATCH: Well, I -- when you were in the White House it was part of your job to coach President Bush's judicial nominees how to answer Democrat -- Democrats' questions about Roe v. Wade?

[11:45:00] KAVANAUGH: Part of our job would've been to prepared nominees more generally and it was common for senators to ask that question then as it is now and so I assume that we would've been involved in going through mock sessions. I know -- I know we were involved in going through mock sessions which is very standard for democratic...


HATCH: ... but you've been -- you've been going through some mock sessions with at least one Republican senator from this committee and -- and other Republican senators. And I'm not saying that as a gotcha thing; you have every right to do that. You did advise Priscilla Owen exactly how she should respond to that according to one of the e- mails.

And my last question, do you agree that a plastic firearm created with a 3D printer so that we -- would not have been in the minds of our founding fathers of the -- the 18th century -- would you agree that that could be regulated or banned without creating any Second Amendment questions?

KAVANAUGH: I think there might be litigation coming on that, Senator, so consistent with judicial independence principles I shouldn't comment on a potential case like that, so, thank you.

HATCH: I actually have written out your -- your answer ahead of time and -- and -- and I just wrote it so that you did not see what I wrote.

Thank you very much, Mr. Chairman.

CHAIRMAN: Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

I'd like to introduce into the record an op-ed from the LA Times editorial board entitled, "Can the Supreme Court confirmation process ever be repaired?" A bipartisan letter from 23 of Judge Kavanaugh's classmates at Yale; a letter signed by hundreds of Yale students, alumni, and faculty; a letter from Georgia Secretary of State, Brian Kemp, an op-ed in the Clarion Ledger by Mississippi Governor, Bill Bright. So I'd ask that that be allowed.


GRAHAM: Just say, "without objection." Yeah, that's good. OK. All right.

Thank you, Judge. There are several things I want to go over with you. One, I want to complement Senator Lee in this regard -- that he worked with Senator Grassley to get what had been previously committee confidential released to the public. And so that's the way it works around here; you don't always get what you want but you try to work with your colleagues and many times you -- you can succeed.

From the public's point of view it's got to work this way. You just can't do everything you want in a legislative body. There are rules and it's frustrating to be told no on something you're passionate about, but I'm often asked -- people wonder, are these hearings turning into a circus? And I want to defend circuses.


Circuses are entertaining, and you can take your children to them. This hearing is neither entertaining nor appropriate for young people.

Now, some of my colleagues who I respect greatly are trying to make a point. I don't know what that point is, but I do know this -- if you want to be president, which, I can understand that -- it's hard. And what you do will be the example others will follow.

Back to the subject matter -- the Morrison case. Was that about separation of powers?

KAVANAUGH: That -- that was a separation of powers case.

GRAHAM: OK. It was about a congressional statute and the authority of the executive branch and how they interacted. Is that correct?

KAVANAUGH: That's correct, and a very specific statutory scheme that was unprecedented and had the judiciary involved in appointing counsel.

GRAHAM: Right. And apparently Kagan and Scalia agreed...


GRAHAM: Or -- but -- Kagan agreed with Scalia's dissent.

KAVANAUGH: She's called it one of the greatest ever written and she's added, it gets better every year.

GRAHAM: Well, I don't want to get in the habit of saying listen to Elena Kagan, but I will hear it, so -- because she's a fine person. The situation we have before us about Mr. Mueller -- that's not a separation of powers issue, is it? Aren't these different facts? That Mr. Mueller was appointed through Department of Justice regulations.

KAVANAUGH: Senator, I don't want to talk specifically about current events, but I will just refer to what I've written previously about special counsel...


GRAHAM: Well, I'm not asking you to -- how to decide a case. I'm just asking you, do you read the paper? Do -- do you watch television? The special counsel statute in question doesn't exist anymore, does it?

[11:50:00] KAVANAUGH: The independent counsel statute ...

GRAHAM: Yeah, independent counsel statue.

KAVANAUGH: ... does not exist anymore since 1999.


KAVANAUGH: The traditional special counsel system I've written about is the ordinary way that outside investigation...


GRAHAM: But is that an executive-branch function?

KAVANAUGH: That is ordinarily appointed by the Attorney General, and is...


GRAHAM: Who's a member of what?

KAVANAUGH: The executive branch.

GRAHAM: So, last time I checked, that's not a separation of powers issue.

KAVANAUGH: That -- that traditionally, as I've written, has been an executive branch... GRAHAM: Now the question is, if someone's appointed as special counsel by Department of Justice regulations who has authority over implementing those regulations and overseeing those regulations all I can say is that that's different legally and factually than the Morrison situation where you had a statute.

Let's talk a little bit about the law regarding the president. Clinton v. Jones tells us -- see if I'm correct -- that you can be president of the United States, you can still be sued for conduct before you were president and when you invoke executive privilege the court has said no, wait a minute -- you have to show up at a deposition because it happened before you were president. Is that correct?

KAVANAUGH: Yeah, in a civil suit -- was the Clinton v. Jones case involving allegations that -- or a suit that involved activity before President Clinton became president.

GRAHAM: So it's -- it's pretty well understood, through Supreme Court precedent, that if you're the President of the United States and you engaged in conduct that allowed you to be sued before you got to be president, you can't avoid your day in court, now, on the civil side.

The Nixon holding said what?

KAVANAUGH: The Nixon holding said that, in the context of the specific regulations there, that a criminal trial subpoena to the president for information -- in that case, the tapes -- could be enforced, notwithstanding the executive privilege that was recognized in that case, as rooted in Article II of the Constitution.

GRAHAM: So that's the law of the land, as of this moment?

KAVANAUGH: That United States versus Nixon is the law of the land.

GRAHAM: OK. Now whether or not a president can be indicted while in office has been a discussion that's gone on for a very long time. Is that true in the legal world?

KAVANAUGH: That's correct. The Department of Justice for the last 45 years, has taken the consistent position through republican and democratic administrations, that a sitting president may not be indicted while in office. The most thorough opinion on that's written by Randy Moss, who was head of President Clinton's Office of Legal Counsel in the late - in 2000.

He's now a district judge, appointed by President Obama on the district court in D.C.

GRAHAM: I think you have written on this topic as well, haven't you?

KAVANAUGH: I have not written on the constitutionality.

GRAHAM: Did (ph) you talk about whether or not it would be wise to do this?

KAVANAUGH: I've made my thoughts known for Congress to examine... GRAHAM: Right.

KAVANAUGH: ... because in the wake of the September 11th, I thought one of the things Congress could look at is...


KAVANAUGH: ... how to make the presidency more effective.

GRAHAM: I just want my democratic colleagues to remind you that when President Clinton was being investigated, you took the position that he's not above the law; but, in terms of indicting a sitting president, it would be better for the country to wait. And the person who echoed that the most -- or at least effectively, I thought, from his point of view -- was Joe Biden.

So there's nothing new here, folks. When it's a democratic president, they adopt the positions that they're arguing against now. But that's nothing new in politics. I'm sure we do the same thing.

So this man, Judge Kavanaugh, is not doing anything wrong by talking about this issue the way he talks about it. What we're doing wrong is blending concepts to justify a vote that's going be inevitable.

You don't have to play these games to vote, no. Just say you don't agree with his philosophy. You don't think he's qualified. But the thing that I hate the most is to take concepts and turn them around, upside down to make people believe there's something wrong with you.

There's nothing wrong with you, the fault lies on our side. Most Americans, after this hearing, will have a dimmer view of the Senate; rightly so. I don't want anybody to believe that you stole anything. Did you steal anything from anybody while you were working at the White House Counsels?


GRAHAM: Did you know that anybody stole anything or did you encourage them to steal anything?


GRAHAM: Did you use anything knowingly that was stolen?


[11:55:00] GRAHAM: So you can talk about Mr. Miranda, and he deserves all the scorn you can heap on him. But I don't want the public to believe that you did anything wrong, because I don't believe you did. So it's OK to vote no. But it's not OK to take legal concepts and flip them upside down. In (ph) that like, we're doing something on the republican side when you had the exact same position, when it was your turn.

Roe v. Wade, you've heard of that case, right?

KAVANAUGH: I have, senator.

GRAHAM: Now, there are a lot of people that like it, a lot of people don't. It's an emotional debate in the country. The -- is there anything in the Constitution about a right to abortion, is anything written in the document?

KAVANAUGH: Senator, the Supreme Court has recognized to right to abortion since the 1973 Roe v. Wade case...

GRAHAM: Yes, but...

KAVANAUGH: ... who's (ph) reaffirmed it many times.

GRAHAM: ... but my question is, did they find a phrase in the Constitution that said that the state cannot interfere with a woman's right to choose until medical viability occurs? Is that in the Constitution?

KAVANAUGH: The Supreme Court applying the liberty...

GRAHAM: It's a pretty simple, no, it's not, Senator Graham.

KAVANAUGH: ... Well, the - I want to just be...

GRAHAM: But those words.

KAVANAUGH: ... I want to be very careful because this is a...


KAVANAUGH: ... topic, on which...

GRAHAM: No, if you'll just follow me, I'll let you talk.

But the point is, will you tell me, yes or no, is there anything in the document itself talking about limiting the state's ability to protect the unborn before viability? Is there any phrase in the Constitution about abortion?

KAVANAUGH: The Supreme Court has found it under the liberty clause, but you're right that specific...

GRAHAM: Was there anything in the liberty clause talking about abortion?

KAVANAUGH: ... The liberty clause refers to liberty, but not -- does not have (ph)...

GRAHAM: OK. Well, the last time I checked, liberty...


GRAHAM: ... didn't equate to abortion, I - the Supreme Court said it did. But here's the point, what are the limits on this concept? You had five, six, seven, eight or nine judges. What are the limits on the ability of the court to find a penumbra of rights that apply to a particular situation?

What are the checks and balances of the people in your business? If you can find five people who agree with you to confer a right, whether the public likes it or not, based on this concept on a penumbra of rights? What are the outer limits to this?

KAVANAUGH: The Supreme Court in the Glucksberg case, which was in the late '90s -- and, Justice Kagan talked about this at her hearing -- is the -- the test that the Supreme Court uses to find unenumerated rights under the liberty clause of the Due Process Clause of the 14th Amendment. And that refers to rights rooted in the history and tradition of the -- of the country, so as to prevent...

GRAHAM: So let me ask you this. Is there any right rooted into history and traditions of the country, where legislative bodies could not intercede on the behalf of the unborn before medical viability? Is that part of our history?

KAVANAUGH: The Supreme Court precedent has recognized the right to abortion. I'm...

GRAHAM: I'm just saying, what part of the history of our -- I don't think our founding fathers -- people mentioned our founding fathers, I don't remember that being part of American history. So how did the court determine that it was?

KAVANAUGH: The court applied the precedent that existed. And found, in 1973, that under the liberty clause...

GRAHAM: Yes, but before 1970 -- I mean, when you talk about the history of the United States, the court has found that part of our history is for the legislative bodies not to have a say about protecting the unborn until medical viability.

I don't - I haven't - whether you agree with it or not, I don't think that's part of our history. So fill in the blank. What are the limits of people in your business applying that concept to almost anything that you think to be liberty?

KAVANAUGH: And (ph) that -- that is the concern that some have expressed about the concept of unenumerated rights.

GRAHAM: Well, here's the concern I have, that you got one word that has opened up the ability for five people to tell everybody elected in the country, you can't go there; that this is an off-limits in a democratic process.

Whether you agree with Roe v. Wade or not just think what could happen down the road if five people determine the word liberty means "X" the only real check and balance is a constitutional amendment to change the ruling. Do you agree with that?

KAVANAUGH: Senator, I'm not going to comment on potential constitutional amendments or ...

(CROSSTALK) GRAHAM: But -- OK. How -- if we pass the statute tomorrow in Congress saying that the Congress can regulate --