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Kavanaugh Hearings Resume Today; Kavanaugh Hearing. Aired 9:30- 10a

Aired September 05, 2018 - 09:30   ET


[09:30:00] WOLF BLITZER, CNN ANCHOR: Then there's 21 senators all together and they will each have a lot of time to ask tough questions. As tough or as easy questions as they respectively want. Don't -- I anticipate some very, very tough questions clearly from the Democrats.

You know, Jean Biskupic, you've been covering the Supreme Court for a long time. From your perspective, how significant is this? Because right now there are basically four liberals on the Supreme Court and four conservatives on the Supreme Court. And if he's confirmed, and all anticipation is he will be confirmed, that makes it 5-4.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: And a solid 5-4. Justice Kennedy was a conservative, but he was -- his vote was always in play for the liberal side. In play on gay marriage. In play on affirmative action. In play on abortion rights. Brett Kavanaugh's vote will not be in play the same way, which will pull the court over to the right on so many social policy issues and probably executive power issues.

Wolf, there's only three ways that I can see him possibly going down. And I -- and one is on -- given what we've had in the past -- one is on credentials. We know his credentials are good. It's not like what happened with Harriet Miers. The other is, if he talks a lot like Robert Bork, we already know he's learned from that. He's not going to reveal too much. And the third thing -- the one thing that Democrats could count on, if they can count on anything, is something new coming out. Something surprising, for example, like what happened with Clarence Thomas. But that didn't sink him and I think that what we're going to see is Democrats trying to get him to reveal himself, but a certain inevitability here.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: And the other thing that we should sort of keep in mind here is the context, that for a generation Republicans have been able to build up and to make a case to the Republican base that the Supreme Court matters and that they should vote on it, that they should -- that they should focus singularly on that issue. And for Democrats, it just hasn't been the case.

With this nomination, because it is so pivotal, the Democratic groups, the sort of liberals, have been pushing their Democratic-elected officials on this committee and then more broadly to be tougher, to do things that Republicans have done before. And we're going see that play out in the questioning of all Democrats, particularly those who are thinking about 2020. BLITZER: We see Judge Kavanaugh now walking in. We see the senators

there. They're getting ready to sit down. And the chairman, Chuck Grassley, will gavel this session into order.

You know, Abby, I just want to point out that for the president -- for President Trump, already Neil Gorsuch, his first Supreme Court nominee confirmed. He's a young man. He's got 30 or 40 years on the Supreme Court. Looks like Judge Kavanaugh is going to be confirmed, although, let's see what happens in the course of these congressional hearings, which are significant.

And, you know, if you listen to White House officials, and you cover the White House, they think there could be a third Trump appointee, a nominee for the Supreme Court in the not too distant future.

ABBY PHILLIP, CNN WHITE HOUSE CORRESPONDENT: That's absolutely right. I mean this is the whole ball game for President Trump. This is one of the main reasons why he was able to get Republicans to back him during the campaign. He was able to say, here is a long list of people who I would be willing to appoint. And don't forget, we might have two, maybe three. If you talk to President Trump he'll say an even higher number than that. But most people think two, maybe three in his term. And if he gets a second term, probably more.

So this is a critical moment for him. And every time this has come up, both with Neil Gorsuch and now, the White House that is otherwise characterized by chaos, has suddenly fallen into line. Everything starts working like clockwork in a very traditional fashion because they know that they cannot mess this up. This is so important to the Republican base. And it's so important to President Trump's legacy, putting aside everything else that is swirling around.

BLITZER: Rick Santorum, you wanted to weigh in.

RICK SANTORUM, CNN SENIOR POLITICAL COMMENTATOR: Well, no. First off, I would just make a point on Dana. The Republicans actually haven't opposed Supreme Court nominees like Democrats have opposed this nominee. In fact --

BASH: But it is true that conservatives have been focused on it as a voting issue. That's what I mean.

SANTORUM: I would agree. I would agree, it's a very, very important issue.

BISKUPIC (ph): Wait a minute, they blocked Merrick Garland completely.

SANTORUM: Well, yes, that -- that had everything to do with the fact he was nominated during the last year of a presidential eight year term --

BISKUPIC: But they just --


SANTORUM: It's not. I mean we can -- we can rehash the Merrick Garland (INAUDIBLE) forever, but --

BASH: I agree with you that traditionally, until the last 10 years, that there have been --

SANTORUM: Traditionally. Sotomayor got a -- got a big vote.

BASH: A large bipartisan vote.

SANTORUM: Kagan got a --

BASH: I agree.

BISKUPIC: Not a large bipartisan vote.

BASH: Not Sotomayor. Before that.

SANTORUM: Ruth Bader Ginsburg, that was almost a unanimous vote. So was Steven Breyer, who, by the way, was confirmed in like a month and a half.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: That was another era. That era is gone.

SANTORUM: And, I mean, that -- my point is, you're right, the era is gone. And what's happening here and what we saw yesterday is a very, very bad sign. And we can talk about that later.

BLITZER: All right, I think Chuck Grassley is about to get this session into order.

And you see the photo opportunity. Usually they allow the photographers a minute or two to take some pictures and then the session will actually begin.

[09:35:03] Chuck Grassley, he's been pretty much on time as opposed to many others here in Washington. He said he would start at 9:30.


BLITZER: It's now 9:35 right now.

SANTORUM: Get up -- get up in the morning and get your work done.

BLITZER: You see the photographers. They're going to be taking a few more pictures.

You know, John, while we wait for this session to begin, you only need 50, it's a Republican vice president, senators to confirm. And that's because the Democrats changed the rule a while ago.

Hold on a second. Here's Chuck Grassley.

[09:35:33] SEN. CHUCK GRASSLEY (R), CHAIRMAN, JUDICIARY COMMITTEE: GRASSLEY: Good morning, everybody, and we welcome everybody back again, and especially Judge Kavanaugh and his wife, Ashley. Yesterday, each senator made their opening remarks. We also heard from three people who had the honor of introducing Judge Kavanaugh: Secretary Rice, Senator Portman and attorney Lisa Blatt, and we heard for the first time directly from Judge Kavanaugh. He made a powerful, compelling and convincing statement demonstrating his exceptional background and qualifications to serve our nation's highest court.

GRASSLEY: NBC news reported that Democratic members of the committee plotted with the minority leader to disrupt the hearing yesterday. Democratic senators interrupted the hearing 63 times before lunch. And in the audience, 70 people were arrested yesterday who were following their lead, all probably...


GRASSLEY: ... very constitutionally prepared to do that, doing what the Constitution says, the right of freedom of speech. But we also were able to finally conduct our hearing the way it should be conducted.


GRASSLEY: Yesterday was just opening statements. It was only -- it was only our time as committee members...


GRASSLEY: ... that we wasted on disruption and disorder over procedural matters. But today is different.




PROTESTER: Senator Grassley, I take offense. I called out Senator Durbin. I don't see how you can say that I was working with Senator Durbin. I'm from his state, and I called him out specifically. This -- we are not working with the Democrats. We are working for ourselves, and I (OFF-MIKE)

GRASSLEY: It was our time as committee members yesterday to make our case. Today is different. Today is the day that the American people are supposed to hear from the nominee.

This morning, we'll begin our questioning of Judge Kavanaugh. We will get through all members' first rounds of questions today, no matter how long it takes.

Members are allotted 30 minutes for the first round. If your time expires, your remaining questions may be continued, of course, in the second round tomorrow.

We'll take a lunch break, as well as probably two other 15-minute breaks throughout the day. For now, let's plan our first break after five senators or so have completed their questions. I assume that this will be around 12:15, which will hopefully coincide with the floor vote that's already scheduled. This would be a three-minute -- or a 30-minute break for vote and lunch.

GRASSLEY: But Judge, if you would like to take a break any other time, let us know. We're happy to accommodate that.

And with that, I will start the questioning of my 30 minutes.

Judge, for the last 12 years you have served as a federal circuit judge on one of the most influential circuits in America.

You have offered 307 judicial opinions and joined hundreds more, totaling more than 10,000 pages of record. You have decided some of the most pressing legal issues facing our country.

The Supreme Court of the United States, the one you're nominated to be on, has adopted a legal position -- your legal position from at least 12 opinions.

The Senate Judiciary Committee has received dozens of strong letters of support from hundreds of people, many of whom you know best, from all across the political and ideological spectrum.

And the American Bar Association has given you its highest rating: unanimously well qualified. My Democratic colleagues have said that this is the gold standard of a judicial nomination.

There is no dispute that you're one of the most qualified Supreme Court nominees. Some people say the most qualified and I don't disagree with their judgment. And that could be for anybody coming before the United States Senate.

I'm not the only one who says that, because we have a letter from Robert Bennett, surprisingly President Clinton's attorney, and your opposing counsel during the independent counsel investigation of President Clinton.

He wrote a very strong letter in support of your confirmation. Quote, "Brett is the most qualified person that any Republican president could possibly have nominated. Were the Senate to fail to confirm Brett, it would not only mean passing up the opportunity to confirm a great jurist, but it would also undermine civility and politics twice over; first in playing politics with such an obviously qualified nominee; and then a gun -- again in losing the opportunity puts such a strong advocate of decency and civility on our nation's highest court."


GRASSLEY: Mr. Bennett also speaks highly of your integrity...


GRASSLEY: ... and to your fairness and open-mindedness.

And so, without objection, I would enter that letter in the record.

Now to a question. I imagine that your 12 years of judicial service on the second highest court in the land has given you plenty of opportunity to think about my first question, which is: What makes a judge a good one? And what influences in your life have shaped your vision of how a judge should go about doing his job?

KAVANAUGH: Thank you, Mr. Chairman.

I think the first quality of a good judge in our constitutional system is independence. Independence comes...


KAVANAUGH: ... directly from...


KAVANAUGH: ... Article III of the Constitution.


KAVANAUGH: And the independence of the federal judges really is guaranteed by the framers in our life tenure and our protection from pay reduction. So because we have life tenure, we are independent and immune from political or public pressure.

KAVANAUGH: So I think the first thing that makes a good judge is independence, not being swayed by political or public pressure. That takes some backbone, takes some judicial fortitude. The great moments in American judicial history, the judges had backbone and independence.

You think about Youngstown Steel, you think about, for example, Brown versus Board of Education, where the court came together and knew they were going to face political pressure and still enforced the promise of the Constitution.

You think about United States versus Nixon, which I've identified as one of the greatest moments in American judicial history, where Chief Justice Burger, who had been appointed by President Nixon, brought the court together in a unanimous decision to order President Nixon in response to a criminal trial subpoena to disclose information. Those great moments of independence and unanimity are important.

Respect for precedent is another one. We are a system of constitutional precedent. Precedent is not just a judicial policy. It's sometimes stated that it's just a policy. Precedent comes right from Article III of the Constitution.

Article III of the Constitution refers to the judicial power. What does that mean? What does judicial power mean? Judicial power, you look at Federalist 78, and it's - what's described there is a system of precedence. So precedence is rooted right into the Constitution itself and is constitutionally dictated to pay attention and pay heed to the rules of precedent. Beyond that, being a good judge means paying attention to the words that are written, the words of the Constitution, the words of the statutes that are passed by Congress, not doing what I want to do, not deferring when the executive rewrites the laws passed by Congress, but respect for the laws passed by Congress, respect for the law, the words put into the Constitution itself. That's part of being a good judge. That's part of being independent. That's part of precedent.

And then I would say being a good judge -- there are human qualities in terms of the interaction. Although these confirmation processes focus on one person as if you're making all the decisions.

As I said yesterday, I'm joining a team of nine, if I were fortunate enough to be confirmed, and that means something. It means something in sports. In means something in judging. I don't make decisions by myself.

For the last 12 years, I have not been making decisions by myself. Every case has been in a panel of at least three judges, and you learn from each other when you're deciding cases. You work with each other when you're deciding cases.

And so, having collegiality and civility as Justice Kennedy showed us so powerfully repeatedly with how he conducted himself over the years, that's very important because those great moments that I was talking about at the beginning like United States versus Nixon, like Brown versus Board, the court came together in unanimous decisions, and the unanimity of the decisions added force. That took personal interaction. That took collegiality.

So I think, you know, I've tried to be a very collegial judge. I've tried to be civil. I want, Mr. Chairman, the losing party -- the losing party, in every case, to come out and say, "Kavanaugh gave me a fair shake. It was well-prepared. He wrote a clear opinion. He explained everything. I disagree, but at least I get it."

KAVANAUGH: So I want the losing party and I want both parties to walk out at oral argument and say, "He had an open mind. He gave me a fair shake." And I think I've done that for 12 years. I've tried to do that consistently. Everything you do as a judge matters in terms of being a good judge. Oral argument, writing opinions, how you decide. So those -- those are the qualities.

I guess the -- the last thing I always remember about it is the -- the thing I said my mom told me from the first instance: Judging is not just about theory. It's not theory. It's not just what a Law Review article is.

Judging is real people in the real world. And every decision we make, no matter how high-minded it might sound, affects real people in the real world with real interests. And we have to remember that in how we explain the decisions.


KAVANAUGH: Thank you, Mr. Chairman. GRASSLEY: Now, following up on the wise words of Senator Sasse yesterday on separation of powers, your record before the Senate includes more than 10,000 pages of judicial writings over dozen -- your dozen years.


GRASSLEY: We have over 440,000 pages of e-mails and other records from your legal service at the White House and Judge Starr.

And we -- you have written extensively on the issue of our Constitution's separation of power among the three branches. And a key component of the separation of powers is the independent judiciary. Obviously, everybody learns in eighth grade civics about judges interpreting law. The judiciary must continue to be the least political and least dangerous branch. A judge's sole job is to find and apply the law evenly and fairly, without regard to the president who nominated him, the senators who voted for him, the parties before him, and the political consequences of his judicial decision.

So, Judge, let's discuss judicial independence from the executive branch.

No one, not even the president, is above the law. Some of my colleagues have criticized your views of presidential authority, suggesting -- wrongly, in my opinion -- that your views of presidential authority would not allow any meaningful check on the president, particularly this one.

Please tell us what judicial independence means to you, including whether you have any trouble ruling against a president who appointed you, and against the executive branch in any case before you. You've partly talked about independence, but apply it specifically to a ruling against a president or the executive branch generally.

KAVANAUGH: Thank you, Mr. Chairman.

To begin with, you're correct: 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.

In general, so too we, as judges, are separate from the Congress. We are not supposed to be influenced by political pressure from the executive or from the Congress. We are independent. We make decisions based on law, not based on policy, not made -- based on political pressure, not based on the identity of the parties.

No matter who -- who you are in your -- our system, no matter where you come from, no matter how rich you are or how poor you are, no matter your race, your gender, no matter your station in life, no matter your position in government, it's all equal justice under law.

KAVANAUGH: And again, look at our examples in history. I always -- I always will go back to the great moments in our history where these principles, which sound abstract if you're just describing them, were actually implemented.

And I go back to Youngstown Steel, and you think about it's a six- three decision where the Supreme Court rules that President Truman has violated the law by seizing the steel mills. Now, this is a time of war. A time of war where lots of Americans were killed and the Supreme Court's under pressure to defer to the President's war effort in a six-three decision.

But what's interesting, to me, Justice Clark. You don't usually talk about Justice Clark in that decision. Why is he important? He is important. He was appointed by President Truman to the Supreme Court. What a moment of judicial independence there, to rule in that case.

If you think about Justice Jackson who had been president -- working for President Roosevelt and then he descents in the Korematsu case. Stands up and says what -- letting racism let this is like letting a loaded weapon lie around.


KAVANAUGH: Dissents against President Roosevelt's decision.


KAVANAUGH: Justice Jackson's...

FEINSTEIN: Ask them to suspend.


KAVANAUGH: ...Justice Jackson's concurrence in Youngstown which is, of course, what has become the law, that three part test, category one, category two, category three. But again, he writes that concurrence in Youngstown. Why is that a moment of judicial independence?

He had taken positions contrary to that one. He had worked in the executive branch in the Roosevelt administration, yet when he's a judge -- he sees it differently as an independent judge.

How about Chief Justice Burger? United States versus Nixon, writes the opinion, unanimous, moments of judicial independence. So, it's resisting public pressure, political pressure. It's treating everyone equally no matter where you are -- what station. When I -- when I was a -- became a judge on the D.C. Circuit, I had a case called Hamdan v. United States. Who's Hamdan?

PROTESTER: Mr. Kavanaugh, this is a position of integrity. This is a position of protecting inalienable rights for all persons within this country. If you are a man of integrity you yourself would cancel these hearings. You, yourself (inaudible). (OFF-MIKE).


KAVANAUGH: So, in the Hamdan case, Hamdan is one of bin Laden's associates. You will never have a nominee.


KAVANAUGH: Mr. Chairman, should I proceed?

GRASSLEY: This is coming out of my time, but that's OK. Let these people have their free speech and interrupt the other 300 million people listening -- that this is your opportunity to speak to the American people and for them to make a judge about it. If they want to effect what the other 300 million people hear from you then that's just too bad. You proceed now.

KAVANAUGH: Hamdan is one of bin Laden's associates involved before September 11; the worst attack ever on American soil. He's prosecuted before military commission, the signature prosecution of the Bush administration, comes to the D.C. Circuit, I'm on the panel. I write the opinion saying that his military commission prosecution is unconstitutional. It violates ex post facto principles.

You'll never have a nominee who's ruled for a more unpopular defendant than ruling for Salim Hamdan. And why did I do that in that case? Why did I rule for someone who had been involved in the September 11? It's because the law compelled it, as Justice Kennedy showed us in the Texas versus Johnson case.

We don't make decisions based on who people are, or their policy preferences, or the moment. We base decisions on the law and Justice Kennedy's example of independence is something I've tried to follow.

And it means -- you know, you're not a pro -- as I said yesterday, not a pro plaintiff or pro defense judge, not a pro prosecution or a pro defense judge. I'm a pro-law judge and I've ruled for parties based on whether they have the law on their side. That's part of being an independent judge is ruling for the party no matter who they are so long as the party is right. If you walk into my courtroom and you have the better legal arguments, you will win.

GRASSLEY: I think you answered my next question based upon what you said about Hamdan. But there -- there -- there's probably other examples. You don't need to go into detail, but...


GRASSLEY: ... You have President...


PROTESTER: This is a democracy. This is a democracy.

GRASSLEY: ...President Bush appointed you. Are there other cases that -- there's been other cases, presumably, you've ruled against the administration of the person that appointed you?

KAVANAUGH: Absolutely, Mr. Chairman. There were a slew of cases on everything from the Freedom of Information Act to some of...


KAVANAUGH: ... The administrative law cases. The Hamdan one is, certainly, the one that comes to mind, most, because of the importance of that case, yet, I ruled that it was unlawful.

GRASSLEY: Yes. Now, did anyone ask you to make any promises or assurances that all the -- all about the way that you would rule in certain cases?


GRASSLEY: Were you asked about your views on Roe v. Wade?


PROTESTER: Save Roe vote no! (OFF-MIKE).

GRASSLEY: On -- we're talking about separation of powers. Have you ever written any decisions where you used the 10th Amendment? I'm talking about division of powers between federal and -- and states.

KAVANAUGH: Mr. Chairman, most of the cases that come to the D.C. Circuit are at the national level and, therefore, involving questions of separation of powers between the legislative, executive, and judicial branches.

Of course, federalism is a critical part of our constitutional structure as well. The genius of our system, Federalist 39, as described by Madison, is that we have, both, a national government and a federal government, simultaneously.

And the House Representatives really represents, in some ways, the national proportional representation. This body, with two senators from each state, represents, in many ways, the federal part. Each state represented equally.

And the federalism system by which the states are allowed to regulate local matters, and some of the Commerce Clause cases such as United States versus Lopez and United States versus Morrison reinforce the idea that there is a core of authority that is, exclusively, in the province of the states, and beyond the scope of the federal government.


KAVANAUGH: The 10th Amendment, we...


KAVANAUGH: The 10th Amendment reinforces the structure of federalism that's in our constitutional system. It's important always to remember the role of the states in our constitutional systems. And it's important to recognize as individual citizens something we often forget, particularly in a process like this: Our rights and liberties are protected by the federal Constitution and by the federal courts, but they're also protected by state constitutions and state courts.

A great judge on the 6th Circuit, Judge Jeff Sutton's, written a new book about using state constitutions to help protect your individual liberties and rights too.

This whole document, through the separation of powers and the federalism, tilts toward liberty -- tilts toward liberty