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At This Hour

Kavanaugh Supreme Court Hearing. Aired 11-11:30a ET

Aired September 05, 2018 - 11:00   ET



SEN. ORRIN HATCH, R-UT.: -- skepticism about the Chevron doctrine, and concern that it allows an administration to impose its policy preference by avoiding the political process.

I can understand why this would be appealing to an administration, but I also think it's a threat to the separation of powers because it transfers power from Congress and the judiciary to the executive branch.

That's why I've introduced the Separation of Powers Restoration Act to reverse the Chevron doctrine. Many members of this committee have co- sponsored this legislation. And as someone who has written extensively about the separation of powers, can you tell us why the separation of powers is so important, and how it -- how it helps to protects individual freedom?

BRETT KAVANAUGH, SUPREME COURT NOMINEE: The separation of powers protects individual liberty because it responds to the concern the framers had that -- something Senator Klobuchar said yesterday from Federalist 47, that the accumulation of all power in one body would be the very definition of tyranny.

So, Federalist 47 talks about that, Federalist 69. So, the separation of powers, to begin with, protects individual liberty. It does so because Congress can pass the laws, but you can't enforce the laws. A separate body has to decide to enforce the laws. And then, even if they law is enforced and a citizen may say, well, I want someone who didn't pass the law or enforce it to decide whether I violated the law, or whether the law is constitutional.

And that's why we have an independent judiciary; to guarantee, as an independent matter, our rights and liberties. And the three branches, therefore, do separate things because it all tilts towards liberty. It's hard to pass a law, as you know, in the Congress. And then, even if it does get passed and affects your liberty, a separate body has to decide, usually the U.S. Attorney's Office, to enforce the law. And that's a separate decision. That helps protect your liberty.

And then, even if that happens, you go to a court and you say, either, I didn't violate that law, as I'm accused of doing, or that law is ill -- unconstitutional, or they're interpreting that law in a way that's not consistent with what the law said.

The court, independently, decides that. It's not the members of Congress, or the executive, deciding that. That's how the Constitution's separation of powers tilts towards -- toward liberty in all its respects.

Now, as to your specific question, Senator, one of the things I've seen in my experience in the executive branch, and in the judicial branch, is a natural tendency, but it's a natural tendency that judges need to be aware of and then respond to.

So, here's the natural tendency. Congress passes laws, but then doesn't have -- can't update the laws. So, maybe it's an environmental law, or maybe it's some kind of law dealing with national security. Let's take those two examples to illustrate.

KAVANAUGH: And then, an executive branch agency wants to do some new policy, and proposes a new policy to Congress, but Congress doesn't pass the new policy. What often happens, or too often I've seen is that the executive branch, then, relies on the old law as a source of authority to do this new thing.

And they try to say, well, the old law is ambiguous, so we can fit this new policy into the old law as justification for doing this new thing.

And I've seen this in national security cases. I've seen it in environmental. You see it all over the place. It's a natural phenomenon because the Executive Branch wants to implement what it thinks it good policy.

Now, when those cases come to court, it's our job to figure out whether the Executive Branch has acted within the authority given to it by Congress. Have you given them the authority? And my administrative law jurisprudence is rooted in respect for Congress. Have you passed the law to give the authority?

I've heard it said that I'm a skeptic of regulation. I'm not a skeptic of regulation at all. I am a skeptic of unauthorized regulation, of illegal regulation, or regulation that's outside the bounds of what the laws passed by Congress have said. And that is what is at the root of our administrative law jurisprudence.

HATCH: OK, one of the most important qualities I look for in a judicial nominee is the ability to impartially interpret the law and apply it to the case before the court.

Now, this can often be the most difficult part of judge's job, because it may require the judge to rule against a litigant that may be sympathetic or against a policy that the judge may personally agree with.

At Justice Sotomayor's confirmation hearings, Senator Schumer commended her for, quote, "hewing carefully to the text of statues even when doing so results in rulings that go against sympathetic litigants," unquote."

Do you believe that it's important for a judge to interpret and apply the laws that Congress has actually passed rather than seeking to make up or change the law if the judge doesn't like what the Congress has done? And if so, why or why not?

KAVANAUGH: I agree completely, Senator. That's at the foundation of what I view as the proper judicial philosophy.


KAVANAUGH: The separation of powers system you described, we have to stick to the laws passed by Congress. You make the policy. We'll follow the policy direction that you put into the laws that are enacted, passed by the House and Senate, signed by the president. We don't rewrite those laws. The Executive Branch also shouldn't be rewriting those laws beyond the scope of the authority granted.

HATCH: OK, some of my colleagues have criticized you for purportedly ruling too often against environmental interest. It seems to me that many of these circumstances boil down to the fact that some of my colleagues don't like the environmental laws Congress has actually passed and are frustrated that they haven't been able to get their own, preferred environmental policy signed into law.

Now, I've looked through your record, and I found that you have not hesitated at all to uphold environmental regulations when they were actually authorized by statute. Could you give us a few examples of cases where you have upheld environmental regulations because you concluded that Congress had authorized them?

SEN. CHUCK GRASSLEY, R-IA.: Limited through as many few words you can as time has run out.

KAVANAUGH: Yes. Senator, as I said yesterday, I'm a pro-law judge, and in an environmental cases, in some cases I've ruled against environmentalist interest and in many cases I've ruled for environmentalist interest.

And they're big cases, cases like the American Trucking Associations case where I upheld a California regulation for a majority over a decent, stricter air quality standards in the National Association of Manufacturers case, EPA rules for particulate matter in the UARG case, permit processes applicable to surface coal mining in the National Mining Association case, the Murray Energy case rejecting a premature challenge to a clean power plant regulation, the National Resources Defense Council case versus EPA ruling for environmentalist groups in a case -- that was a big money case where the industry wanted an affirmative defense to be created for accidental emissions.

The affirmative defense was not in the statutes passed by Congress. The industry came in with their lawyers and said, "Well, just write the affirmative defense into the law," and I wrote the opinion saying, "No, it's not in the law and yes, that might be a problem for industry, but we follow the law regardless."

And so, there are a large number of cases where I've rule in favor of environmentalist interests because that's what the law required in that case.

HATCH: Thank you, Judge. I appreciate it. KAVANAUGH: Thank you, Senator.

GRASSLEY: Senator Leahy?

SEN. PATRICK LEAHY, D-VT.: Thank you, Mr. Chairman, and good morning, judge.

KAVANAUGH: Thank you, Senator.

LEAHY: You and your family. We have a lot questions, and I know you've done a lot of preparation with some -- a couple of our distinguished Republican colleagues about the questions you might be asked, but let me ask you something that normally isn't an issue during supreme court hearings.

You testified before this Committee in both 2004 and 2006 as part of your nomination the D.C. Circuit Court. Then you were nice enough to come by my office and chat with me last month. I asked you that if you changed anything in your prior testimony, and you said no. Is that still your position?

KAVANAUGH: It is, Senator. I told the truth. I was not read into the programs...

LEAHY: No, no, no. I'm not asking what we did about it. I just asked you if you would change anything in your...

KAVANAUGH: I'd like to explain if I can.

LEAHY: I'm going to give you a chance because I'm going to ask you a couple questions. Go ahead.

KAVANAUGH: Well, I just wanted to explain that at the last hearing in 2006 in particular, you were concerned, understandably, because there'd been two judicial nominees who had been involved in the legal memos, in the legal discussions around crafting the enhanced interrogation techniques and detention policies.

[11:10:00] You were concerned whether I also was involved in those, and I made clear in response to those questions that I was not read into that program. That was 100 percent accurate. It's still accurate today. I think Senator Feinstein's report and the Office of Professional Responsibility report establish that I was not involved in those programs.

Now, there were two judicial nominees...

LEAHY: OK, I am going to go into that in a little bit. I don't want to go over my time as the preceding senator did. I want to stay...

KAVANAUGH: I just want -- Senator, I just want to be clear. I want to reassure you.

LEAHY: I'm going to go into it. I'm going to give you a chance to speak a lot more...

GRASSLEY: Without...

LEAHY: ... but let me...

GRASSLEY: Hey, I'm not going to take time away from you, but I want to explain something. I said yesterday that if a question is asked within the 30 minutes that he can finish the question and it can be answered. So he did not go over his time.

LEAHY: OK, sorry. I didn't mean to hit a sensitive area. Let me ask you this. Between 2...


Between 2001 -- I'm new here.


LEAHY: Between 2001 and 2003, two Republican staffers on this Committee regularly hacked into the private computer files of six Democratic senators, including mine. These Republican staffers stole 4,670 files and they used them to assist in getting President Bush's most controversial judicial nominees confirmed.

Now, the theft by these Republican staffers became public in late 2003 when the Wall Street Journal happened to print some of the stolen materials. The ringleader behind this massive theft was a Republican staffer named Manny Miranda, who had worked for one of the members of this committee.

In a way was considered by many, both Republicans and Democrats, as a digital Watergate. Not -- a theft not unlike what the Russians did in hacking the DNC. Now, during all this, you worked hand-in-hand in the White House with Manny Miranda to advance these same nominees were he was stealing material. Not surprisingly, you were asked extensively about your knowledge of this theft during both your 2004, 2006 hearings.

And I don't use the word extensively lightly. You were asked over 100 questions from six senators, both Republicans and Democrats and you testified -- and you testified repeatedly that you never received any stolen materials, you knew nothing about it until it was public. You testified that if you had suspected anything untoward, you would have reported it to the White House counsel who would have raised it with Senator Hatch, especially as Mr. Miranda had worked for him.

And at the time, we left it there. We didn't know any better. Today, with the very limited amount of your White House record that has been provided to this committee -- and it is limited -- for the first time, we've been able to learn about your relationship with Mr. Miranda and your knowledge of these events.

So my question is this: Did Mr. Miranda ever provide you with highly specific information regarding what I or other Democratic senators were planning on asking certain judicial nominees?

KAVANAUGH: Senator, let me contextualize because I'm looking at what you're putting up here first. (Inaudible).

LEAHY: Well, the question...

KAVANAUGH: That -- that -- what's up there is 100 percent accurate. As my memory.

LEAHY: OK. So let me ask you this. That's...

KAVANAUGH: Never knew or suspected, true. Never suspected anything untoward, true. Had I suspected something untoward I would have talked to Judge Gonzales...

LEAHY: And I've already...

KAVANAUGH: ... Would have talked to Senator Hatch. That -- that's all 100 percent true.

LEAHY: And that's what I had already said. But did Mr. Miranda ever provide you with highly specific information regarding what I or other Democratic senators were planning in the future to ask certain judicial nominees?

KAVANAUGH: Well, one of the things we would do at the White House is -- on judicial nominations -- and I'm coming to your answer but I want to explain -- is to meet up here -- and this happens on both sides all the time -- with teams up here about -- OK, their judicial nominations are -- our judicial nominees are coming up, how are we going to get them through, here's a hearing coming up.


And during those meetings, of course it would be discussed, "well I think here's what Senator Leahy's going to be interested in." That's a -- that's very common. I'm sure in President Obama's administration when they had similar meetings, they would probably have meetings and say, well I think this is what Senator Graham will be interested in. That's what you do in meetings with -- so highly specific would I think -- I'm not sure what you're getting at by highly specific...

LEAHY: Judge, I -- I -- I've been here over 40 years, I know -- I know what both Republican and Democratic administrations do in preparing. I'm not asking about that. I'm asking you why, before this, did Mr. Miranda send you an e-mail asking you in -- on July 19, 2002, asking you and another Bush Official why the Leahy people were looking into financial ties between two special interest groups and, Priscilla Owen, a particular controversial nominee to the fifth circuit. You had handled that Owen nomination, as you know, as a judge she had received a lot of contributions.

Did -- did Mr. Miranda send you an e-mail asking you why the Leahy people were looking after her financial ties?

KAVANAUGH: Is that what this e-mail is?

LEAHY: I'm just asking.

KAVANAUGH: Can I take a minute to read it?

LEAHY: Of course.


LEAHY: And this is -- it was four days before her hearing on July 23.

KAVANAUGH: Did I send any of the e-mails on this chain? I don't think so. I'm CC'd or -- in any event, if -- if he said why are the Leahy people looking into this -- from Manny Miranda -- I don't really have a specific recollection of any of this, Senator, but it would have been -- it would have not have been at all unusual for -- and this happens all the time, I think, which is the Leahy people...

LEAHY: Really?

KAVANAUGH: ... Are looking into this and the Hatch people are looking into that.

LEAHY: Well...

KAVANAUGH: I -- I think.

LEAHY: You say all the time. Two days before the hearing, he told you that the Democrats were passing around a related 60 Minutes story. He said his intel, intelligence, suggests that Leahy will focus on all things money.

Well, that appears to come from a stolen e-mail to me, stolen by the Republican staff member, sent to me the night before and then given to you the next morning. Were you aware that you were getting, from Mr. Miranda, stolen e-mails?

KAVANAUGH: Not at all, Senator. It was part of what appeared to be standard discussion about -- it's common, Senator, for -- at the White House it'd be common to hear from our leg. affairs team. This is -- in fact, in this process, it's common to hear this is what Senator X is interested in, this is what Senator Y's going to focus...

LEAHY: Was it common to have copies of a private e-mail sent to a particular senator?

KAVANAUGH: Copies of a private e-mail sent to a particular senator?

LEAHY: Yes. Wouldn't that jump out at you? For example...

KAVANAUGH: What -- what -- what are you referring to?

LEAHY: Well, Mr. Miranda is telling you about e-mails sent to me the night before. There'd be no way that he would even have that unless he stole it. Did that raise any question in your mind?

KAVANAUGH: Did he refer to that e-mail in this?


KAVANAUGH: Where -- where is that, Senator?

LEAHY: I'll let you read it.

KAVANAUGH: Well, I'm not seeing where you're -- I'm not seeing what you're referring to.

LEAHY: Yes, it's not here.

[11:20:00] OK, well let me take you one that you do have, because you do have this information from Mr. Miranda and the -- the very limited amount of material that the Republicans are allowing to see of your information about you, that at least did come through.

But in January 2003, let me go with something very specific, Mr. Miranda forwarded you a letter from me and other Judiciary Democrats to then Majority LAeader Tom Daschle. The letter was clearly a draft, it had typos and it wasn't signed.

Somebody eventually -- we never put it out, but somebody eventually leaked its existence to Fox News, I'm not sure who, I could guess. It was a private letter, the time I was shocked to learn of its existence, it had been leaked.

But here's the thing, you had the full text of my letter in your inbox before anything had been said about it publicly. Did you find it at all unusual to receive a draft letter from Democratic senators to each other before any mention of it was made public?

KAVANAUGH: Well, the only thing I said on the e-mail exchange, if I'm looking at it correctly, Senator, was who signed this? Which would imply that I thought it was a signed letter.

LEAHY: It was sent to you, were you surprised to get it? I mean it's obviously a draft, it's got typos and -- and everything else in it. Were you surprised the draft letter circulated among Democrats ended up in your inbox?


LEAHY: From Mr. Miranda.

KAVANAUGH: I think the premise of your question is not accurately describing my apparent recollection or understanding of the time, because I wouldn't have said who signed this if it was a -- if I thought it was a draft.

And my e-mail says who signed this?

LEAHY: So you didn't realize what you had was a stolen letter signed by -- signed by me, that you had a letter that had not been sent to anybody, not been made public?

KAVANAUGH: Well, all I see that I said was who signed this? That's all I see.

LEAHY: Well, let me ask you some more, because so much of this came from Mr. Miranda, who was a Republican staffer, who was as we now know, stealing things. Did he ever ask to meet privately with you in an offsite location somewhere other than the White House on Capital Hill?

KAVANAUGH: I think sometimes, Senator, that the meetings with Senate staffers and White House and Justice Department...

LEAHY: I'm just asking about one particular one, Mr. Miranda.

KAVANAUGH: Yes, sometimes -- usually it would be either at the White House or the Senate. But I think sometimes we'd meet -- or DOJ, but sometimes it could be somewhere else.

LEAHY: Well, did he ask to meet with you privately so he could give you information about Senator Biden and Senator Feinstein?

KAVANAUGH: I'm not remembering anything specific, but that's certainly possible. And again, Senator, I just want to be clear here because I -- it's very common when you're in judicial selection process to determine what are all the senators interested in for an upcoming nominee or an upcoming hearing.

That is the coin of the realm, Senator X is interested in focusing on administrative law, Senator Y is going to ask about environmental law, senator is concerned about your past work for this client.

And that's very common kind of discussion...

LEAHY: Did he -- did he ever ask to have you meet him not the White House, not at the capital, but at his home?

KAVANAUGH: I don't remember that.

LEAHY: OK. Did he ever ask to meet you outside of the White House or the capital?

KAVANAUGH: I can't rule that out, but again, that wouldn't have been typical.

LEAHY: Did he -- did he ever hand you material separately from what would be e-mailed back and forth?

KAVANAUGH: Not remembering what you're -- if you're referring to something in particular, I could answer that. But...


LEAHY: Let me ask you this, did you ever receive information via Mr. Miranda, information marked confidential that you informed you what my staff was sharing with other Democrats?

[11:25:00] KAVANAUGH: I don't know the answer to that, Senator. But again, people on the -- it's not always the case, at least my understanding, that the -- that the people on, for example, your staff and Senator Hatch's staff were necessarily working at odds. It seemed like a lot of times the staff was cooperating at times, not at other times obviously, but at times about judicial nominations. And so it wouldn't have raised anything in particular in my mind if we learned oh, Senator Leahy's concerned about this.

LEAHY: Did my staff ever send you confidential material from Senator Hatch that was stolen from his e-mails?

KAVANAUGH: Well, not the -- not -- not the last part, but the -- your -- I certainly did talk to your staff when we were working on the airline bill, on the September 20, 2001 airline bill, I did remember being here all night one night with your staff, and I'm sure we did talk that night about what other senators thought, and that was the airline bill where, as you -- I think you recall, Speaker Hastert was involved, and we were out there with the OMB team. So in that -- I worked hard with your staff on that.

It just struck me as very -- as not uncommon at all to be talking with our alleged team about what senators on both sides think. It didn't strike me that it was always arms camps (ph).

LEAHY: But -- no, and often times it was not, but here you're getting obviously very private Democratic e-mails. You weren't concerned how Mr. Miranda got them?

KAVANAUGH: Well, I guess I'm not sure about your premise.

LEAHY: Were you at all concerned about where Mr. Miranda got some of the material he was showing you?

KAVANAUGH: I don't recall that, but on the premise of your last question, I want to -- I want to step back to that, not sure I agree with the premise.

LEAHY: I'm just saying, if you're getting something that's marked confidential, wouldn't you assume that's not something being shared back and forth?

KAVANAUGH: Unless it was shared. I mean, this is the thing, if a staffer said here's what we're sending to -- you -- you all should be aware of this, because we're going to make a -- we're going to be really opposed to this judicial nominee.

It seemed -- so just to be clear, it seemed to be sometimes there were judicial nominees you were very opposed to, sometimes you were supportive of and sometimes in between and there would be messages passed back and forth and sharing of information, very cooperative, as I recall.

LEAHY: Well, I've -- I've...

KAVANAUGH: You were transparent, in other words, when you are -- when you had problems with the nominees, I recall, transparency. And when you were supportive, you were at the May 09, 2001 event at the White House, I recall, where the president announced his first 11 Court of Appeals nominees. And you -- you were supportive of many of them. LEAHY: Well, as you know -- but, you know, as a fact, I -- I voted for a lot of Republican nominees.


LEAHY: Both to the Supreme Court, the Courts of Appeals, and the District Court.


LEAHY: But what I'm opposed on my -- with Judge Owen when I was raising some very good questions about funding issues getting from people that were before her court. That might've raised a red flag that I had some concerns about her. Now, when you worked at the White House, did anyone ever tell you they had a mole that provided them with secret information related to nominations?

KAVANAUGH: I -- I don't recall the reference to a mole which sounds, highly, specific. But, certainly, it is common, again, the people behind you can probably refer to this, but it's common, I think, for everyone to talk to each other at times, and share information. At least, this is was my experience. This was 20 years ago, almost, where you would talk to people...

LEAHY: So, you...

KAVANAUGH: ... and the committee.

LEAHY: ... you never received an e-mail from a Republican staff member with information claiming to come from spying from (ph) a Democratic mole?

KAVANAUGH: I don't -- I'm not going to rule anything out, senator. But if -- if I did, I wouldn't of thought that anything -- I wouldn't have thought that the literal meaning of that, but I'd.

LEAHY: Wouldn't it surprise you that -- if you got an e-mail saying you got that from somebody spying on Democrats (ph)?

KAVANAUGH: Well, is there such an e-mail, Senator? I don't know. I mean, that's.

LEAHY: Well, we'd have to ask the Chairman what he has in his confidential...


LEAHY: ... material.


KAVANAUGH: But -- but here's the -- if you're referring to something particular. Here's what I know.

GRASSLEY: Just stop a minute here. Referenced twice in your 30 minutes -- and don't take this off of his time. You made reference. This -- you're talking about the period of time that he was the White House Counsel.


GRASSLEY: That material is available to everybody.

LEAHY: So -- so -- so, that (inaudible) 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...


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

GRASSLEY: No. Not if it...