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Judge Kavanaugh's Supreme Court Nomination Hearing. Aired 10:30-11a ET

Aired September 05, 2018 - 10:30   ET



I think Senator Durbin asked yesterday what changed that made me think about that from the time. What changed was September 11. That's what changed.

So after September 11, I thought very deeply about the presidency and I thought very deeply about the independent counsel experience and I thought very deeply about how those things interacted.

And I thought very deeply about seeing President Bush when he came into the Oval Office on September 12, 2001 in the morning. President Bush said this will not happen again. This will not happen again. And he was of single-minded focus -- every morning for the next seven years for President Bush was still September 12, 2001. Single-minded focus. And then thinking back to the independent counsel experience in August of 1998.


KAVANAUGH: So I -- I proposed some ideas for Congress to consider. Here's the bottom-line point. They were ideas for Congress to consider. They were not my constitutional views.

KAVANAUGH: If a case came up that -- where someone was -- someone was trying to say this is a constitutional principle, I would have a completely open mind on that because I've never taken a position on the Constitution on that question. I've only put out proposals for you all to study, to think about the balance of a president fighting a war, leading a war and a president subject to say, ordinary civil lawsuits as in the Clinton versus Jones case.

FEINSTEIN: Let me ask you -- you're becoming -- very good, you're learning to filibuster. But let -- let me ask this question precisely. The Supreme Court has unanimously ruled that a president can be required to turn over information.

It upheld the subpoena for the tapes of Oval Office conversations that revealed President Nixon's efforts to cover up the Watergate break-in. This, as you know, was U.S. v. Nixon. You have said that the Nixon case might have been wrongly decided.

Was U.S. v. Nixon wrongly decided in your view? KAVANAUGH: I -- so that quote is not in context, it is a misunderstanding of my position that's up there. I have repeatedly called U.S. v. Nixon one of the four greatest moments in Supreme Court history.

So I've called that -- the four I've always identified are Marbury versus Madison, Youngstown Steel, Brown versus Board of Education, and United States versus Richard Nixon.

And why -- why have I -- Brown versus Board, by the way, the single greatest...


FEINSTEIN: Why is it rightly decided?

KAVANAUGH: So I have said that -- I've said yes, that a -- the court's holding, that a criminal trial subpoena to a president in the context of the -- the special counsel regulations in that case, for information -- a criminal trial subpoena for information under the specific regulations in that case, I have said that holding is one of the four greatest moments in Supreme Court history.

So not only what I was -- I can explain how that misunderstanding came up, because that's -- I know there was a news story about that and that's just not a correct impression of my views.

My views have been consistently why was it one of the greatest moments? It was one of the greatest moments because of the political pressures of the time, the courts stood up for judicial independence in a moment of national crisis.

That's (inaudible) the Supreme Court -- we need the Supreme Court to decide the things we can foresee, but one of the things that's really important for the Supreme Court, we're going to have crisis moments at the Supreme Court on things we can't even predict, and we need people on the Supreme Court who are prepared for that and U.S. v. Nixon is...

FEINSTEIN: (Inaudible) my -- my time is going to run out very quickly. Let me just ask you this, can a sitting president be required to respond to a subpoena?

KAVANAUGH: So that's a hypothetical question about what would be an elaboration or a difference from U.S. v. Nixon's precise holding.

FEINSTEIN: That's right.

KAVANAUGH: And -- and I think going with the Justice Ginsberg principle, which is really not the Justice Ginsberg alone principle, it's everyone's principle on the current Supreme Court and it's a matter of the cannons of judicial independence, I can't give you an answer on that hypothetical question.

FEINSTEIN: So you -- you can't give me an answer on whether a president has to respond to a -- to a subpoena from a court of law?

KAVANAUGH: It's my -- there's my understanding is that you're asking me to give my view on a potential hypothetical.


And that's something that the -- every -- each of the eight justices currently sitting on the Supreme Court, when they were sitting in my seat, declined to decide potential hypothetical cases.

I can tell you about the U.S. v. Nixon precedent, and I did about Chief Justice Burger's role in forging a unanimous opinion, and really all the justices worked together on that. But Chief Justice Burger, who had been appointed by President Nixon -- been appointed by President Nixon, writes the opinion in U.S. v. Nixon.

8-0, Rehnquist was recused, 8-0, ordering President Nixon to disclose the tapes in response to a criminal trial subpoena. A moment of crisis argument I think July 8, 1974 they decided two weeks later, really important opinion, moment of judicial independence, important precedent of the Supreme Court.

But how that would apply to other hypotheticals, I best as a sitting judge and as a nominee follow the precedent of the nominees who have been here before and as a matter of judicial independence, not give you a precise answer on a hypothetical that could come before me.

FEINSTEIN: I understand, thank you very much for being forthcoming. I appreciate it. Thank you, Mr. Chairman.

GRASSLEY: I assume you want to reserve your three minutes?

FEINSTEIN: Can I do that?



GRASSLEY: Senator Hatch.

HATCH: Well thank you, Mr. Chairman. Before I begin, I'd like to enter into the record three letters and an op-ed supporting Judge Kavanaugh's confirmation. The first letter, which I mentioned yesterday in my opening statement, is a letter from 41 attorneys who are members of the Supreme Court Bar.

The signers include people like Lisa Blatt, Dianne Maynard (ph) and Kathleen Sullivan. As the letter notes, the signers, quote, "hold a broad range of political policy and jurist prudential views, but they speak as one in supporting Judge Kavanaugh's nomination" unquote.

The letter authors write, quote, "based on our experience with Judge Kavanaugh and his work, over 12 years of distinguished judicial service, we are confident that he possesses the character, temperament and intellect that will make him an asset to our nation's highest court", unquote.

Now the second letter is from Carolyn Williams, a partner at the venerable D.C. law firm Williams & Connolly, who served on the ABA standing committee on the federal judiciary.

She writes that she has followed Judge Kavanaugh's legal career since 1990 when she was the hiring partner at the firm and he was a law student. Ms. Williams says that Judge Kavanaugh, quote, "has all the qualities litigants and lawyers hope to find in a Supreme Court justice, superb intellect and legal acumen, fundamental fairness and decency, abiding respect for precedent and the rule of law", unquote.

Now I also want to enter to the record a letter -- a letter and op-ed by Jay Lefkowitz. The op-ed appeared in National Review and is entitled "Brett Kavanaugh Is a Mensch". In it, Mr. Lefkowitz writes that Judge Kavanaugh, quote, "has a strong commitment to protecting Americans' freedom of religion, no matter what their faith", unquote.

And Mr. Lefkowitz would -- should know, he and Judge Kavanaugh worked together in private practice on a pro bono religious freedom case, representing a Jewish synagogue in Maryland.

And they won the case, vindicating the right of the congregation to build a place of worship in their neighborhood. Now let me just begin with this, before I begin, Judge, I'd like to ask you to keep your answers to my questions as concise as you can so I can get through as many as -- as time allows.

HATCH: Some of my colleagues have suggested that President Trump nominated you because he thought you'd rule in his favor, should certain issues come before the court. Suppose you had a case involving President Trump or an issue near and dear to the president. What assurances can you provide that you will not allow the president's personal views on a case or personal interest to impact your decision?

KAVANAUGH: Senator, I'm an independent judge. For 12 years, I've been deciding cases based on the law and the precedent in each case. If confirmed to the Supreme Court, that's how I'll do it as well, be part of a team of nine. I'll decide cases based on the Constitution, the law, the precedence, Supreme Court, working with that -- the other eight justices without fear or favor independently.


Without pressure from any quarter, and the person who has the best arguments on the law and the precedent is the person who will win with me.

HATCH: Well, thank you. If at the end of a process, at this process you are confirmed to the Supreme Court, which I expect you will be, what sort of loyalty will you owe to the president? How will that loyalty differ from the loyalty you owe to, say, the American people?

KAVANAUGH: Senator, if confirmed to the Supreme Court and as a sitting judge, I owe my loyalty to the Constitution. That's what I owe loyalty to, and the Constitution establishes me as an independent judge bound to follow the laws written, the precedence of the Supreme Court as articulated subject to rules of stare decisis, and I would do so.

HATCH: OK. You were appointed to the D.C. Circuit by George W. Bush. I think it's fair to say you were close to President Bush. You worked for him for a number of years. Can you give us some example of cases in which you ruled against the Bush administration not withstanding that President Bush was the one who put you on the bench?

KAVANAUGH: Senator, the most prominent example in the Hamdan case.


KAVANAUGH: That was the military commissions case. That was a signature prosecution of the Bush administration. They had established with congressional authorization eventually after a unilateral effort -- didn't succeed in the courts -- establish military commissions.

The military commissions were to try Al Qaida terrorists who had committed war crimes, and one case came to us, Salim Hamdan, and the question was was the prosecution unlawful because the crime of which he was convicted was not an identified crime as of 2001 when he was alleged to have committed it ex post facto principles, and I wrote the opinion reversing his conviction even though it was a signature of prosecution of the United States, even though it was a national security case because that was the right answer under the law.

And it doesn't matter who you are or where you come from. If you're right under the law, you prevail.

HATCH: I'd like to turn now to your work in the Bush Administration. As you know, my Democratic colleagues are demanding to see every piece of paper or every single scrap of paper you ever touched during your six years in the Bush administration in part because they want to know what role, if any, you played in developing the Bush administration's interrogation policies.

Well, six years ago, Ranking Member Feinstein who was then the Chairman of the Senate Intelligence Committee, and a good one at that, issues a lengthy report on the CIA's detention and interrogation program under President Bush.

The report detailed the origins, development, and implementation of the program. In 2014, a declassified version of that report was released to the public. The declassified version or report runs well over 500 pages, and your name appears nowhere in it. Now, I myself spent over 20 years on the Intelligence Committee. I know the quality of its staff and the work that they do, and I know the Ranking Member and how diligent she is. If you had played a role in the Bush administration interrogation policies, I think the Ranking Member would have discovered it.

Numerous administration lawyers appear in the report, but not you, and that should tell us something. With that said, Judge Kavanaugh, I want to ask you for the record what role, if any, did you play in developing or implementing the Bush administration's detention and interrogation policies?

KAVANAUGH: Well, the policies that are reflected and described in Senator Feinstein's extensive, thorough report were very controversial. As you know, Senator, the enhanced interrogation techniques...

HATCH: Right, right.

KAVANAUGH: ... and the legal memos that were involved in justifying some of those techniques also were very controversial when they were disclosed in 2004. And I was not involved. I was not read into that program, not involved in crafting that program nor crafting the legal justifications for that program.

In addition to Senator Feinstein's report, the Justice Department did a lengthy Office of Professional Responsibility report about the legal memos that had been involved to justify some of those programs. My name's not in that report, Senator, because I was not read into that program and not involved.

There were a number of lawyers -- this came up at my last hearing -- a number of lawyers who were involved, including a couple who were then judicial nominees. At my last hearing, I recall Senator Durbin asking about whether I also was likewise involved as these other judicial nominees had been, and the answer was no, and that answer was accurate, and that answer's been shown to be accurate by the office of professional responsibility report by Senator Feinstein's thorough report.

And I do want to say on Senator Feinstein's report, that is an important piece of work that collected facts about a program, that it's important for us to know those facts for the future. And I know it was an enormous effort and a lot of tough work to get all that information for Senator Feinstein and the Intelligence Committee, but I have looked through that report and looked through the Office of Professional Responsibility report. I was not read into that program, Senator. Thank you for asking.

HATCH: OK. Judge, you've been accused of misleading this Committee during your 2006 confirmation hearing regarding your role in developing the Bush administration detention policy. Now, you have a strong reputation in the legal community for honesty and integrity. Read any one of the dozens of letters we received supporting your nomination, and you'll see that right away.

Now, some of my colleagues may not give you the opportunity to answer this question fully, so I'd like to give you the opportunity now. Did you mislead this committee in 2006? If not, what is the source of the confusion about your prior testimony?

KAVANAUGH: I told the truth and the whole truth in my prior testimony. I was not read into that program. The subsequent reports of Senator Feinstein and Office of Professional Responsibility show that and that is what I did then, that's -- that -- that's the answer now.

I was not read -- I was not read into that program.

HATCH: OK, so I mentioned in my opening statement, 18 of your former women law clerks have written to the committee in support of your nomination. That's all of your former women law clerks who were not precluded by their current or pending employment from signing to the letter.

Now these women describe the mentoring and encouragement you've given them in their careers, and they say that you are quote "one of the strongest advocates in the federal judiciary for women lawyers," unquote. Quite a compliment.

The majority of your clerks in fact have been women, and I understand that you were the first judge in the history of the D.C. Circuit to have an all-female class of clerks. Why do you believe it important to encourage young women lawyers and to ensure that both men and women are well represented in the legal profession?

KAVANAUGH: Senator, I believe in equality. Equality for all Americans, men and women, also regardless of race, ethnicity. My mom was an example, as I described yesterday, of breaking barriers, showing me first on racial equality by her example of teaching at McKinley Tech.

Then when she became a lawyer in the late '70s, there were not many women prosecutors at the time, definitely male dominated, in how she overcame barriers. Was a great prosecutor, became a state trial judge in Maryland appointed by Democratic governors.

She showed me by her example the importance of women's equality. During college, you've received a letter from 10 college friends of mine who were women, who were women athletes at Yale. Talked about how I treated them and women's sports with respect and as equal, even when I was in college.

You have a letter from 84 women I worked with in the Bush administration who talked about my efforts to work with them in the intense environment of the West Wing, especially after September 11th.


HATCH: Did you say 84?

KAVANAUGH: Eighty-four women signed a letter who had worked in the Bush White House -- in the Bush White House, and worked in that intense environment. But I had came to be a judge in 2006, May 2006. In August 2006, Linda Greenhouse of the New York Times runs a story in the New York Times about the scarcity of women law clerks at the Supreme Court that year.

There were seven I believe that year out of 37, and she wrote a story about that. And that seemed to me very odd and unacceptable, and I started thinking about what I could do. First of all, why's that happening and what can I do about it? What's the problem, what can I do?

So the problem seemed to me, these networks that people, judges rely on for clerk hirings and professor networks were getting -- were excluding women or at least women weren't fully represented in those. That's true with minorities as well, by the way.

And so I made sure when I was talking to professors at law schools, and I made sure I wanted to see a -- a -- a broad pool of qualified -- well-qualified applicants, including women.

And in that year for example, fall of 2006, which was my first year on the bench -- we hire a year ahead, so I'm hiring for 2007, and I hired three women for that clerk class 2007, three out of the four -- Zina Bash, Britt Grant and Porter Wilkinson -- Zina's right here. And that was the start of my efforts to make sure that women were not being excluded. And -- and I really worked on why this is happening.

So Yale Law women did a study about five years ago about participation in class, the differences on who gets called on in class and there's slight differences there, men and women, who then get selected as research assistants, slight differences there.

And it just keeps building until you get a disparity in the clerk network. And there's a pipeline problem, and I've said I'm breaking through that problem. I'm not -- I'm not listening to that, and so I've been very aggressive about hiring the best and understanding that the best include women. And as you say, senator, a majority of my clerks have been women -- 25. I believe 21 of them have gone on to clerk at the Supreme Court. And they're -- they're an awesome group, and if confirmed to the Supreme Court I will continue to do this.

What it takes -- and I think my mom showed me this, President Bush showed me this a little -- what it takes is not accepting the same old answer, oh, there's a disparity. Well, why and then do something about it, and I try to figure out why, you know -- And we can talk about minority clerks -- but on women, why were those disparities existed -- existing as described by Linda Greenhouse? And I try to figure out why and then I did something about it. I'm very proud of that, because I do believe that all people should be treated equally.

And the law clerk decision, which may sound ministerial and to some extent the job is helping the judge and -- shortly out of law school, but those positions are very important launching pads for the next generation of leaders, the people who will be sitting in these seats, the people who will be sitting in my seat. Lots of them are going to be coming from law clerks, so if we're not being inclusive now, that will show up later. And so it's just been a critical part, it's something I'm very focused on at all times, is equality in the clerkship hiring process and making sure women are getting the same opportunities that men are.

Appreciate the question, Senator.

HATCH: Well thank you, and I appreciate the answer. And I think everybody in this country should appreciate the answer, and I think it distinguishes you. Late last year, allegations against former 9th Circuit Judge Alex Kozinski surfaced when the Washington Post published an article detailing disturbing allegations of misconduct by the Judge.

You clerked for Judge Kozinski for one year in 1991, 1992. Some of your opponents have suggested that you must have known about these allegations. This seems to me to be an effort at guilt by association, which is not the way this committee should operate in any way. With that in mind, I want to give you the chance to answer a few questions about Judge Kozinski so that we're all operating on the same foundation of facts.


First, how long have you known Judge Kozinski?

KAVANAUGH: I clerked for him in 1991, '92, so I started the clerkship 27 years ago.

HATCH: The second -- and I understand from media reports that Judge Kozinski operated an e-mail list where he would send inappropriate material. Were you on this e-mail list?

KAVANAUGH: I don't remember anything like that, Senator.

HATCH: How often did you talk with Judge Kozinski on the phone?

KAVANAUGH: Not often -- not often, Senator.

HATCH: How often did you see him in person?

KAVANAUGH: Again, not often. Maybe when there was a legal convention or...

HATCH: That's what a lot of people don't seem to understand, you know.

KAVANAUGH: I was not working in the courthouse -- he was in the Pasadena Courthouse in California with -- it's a small courthouse with 10 other Court of Appeals judges in that courthouse. I, of course, was working in Washington D.C.

HATCH: When you did see, and talk with Judge Kozinski, what type of things did you talk about?

KAVANAUGH: We were among the 12 co-authors of the Bryan Garner led book on judicial precedent. So, for several years that was a project all of us were -- the 12 of us I guess it was, in total, were working on that. Diane Wood, a Chief Judge of the Seventh Circuit.

HATCH: Right.

KAVANAUGH: And Justice Gorsuch was also a co-author. So, we worked on that as a group. And then, Justice Kennedy, for the last 30 years, had had Judge Kozinski run his -- run Justice Kennedy's law clerk hiring process. And in that -- in the course of that process, I would have communications with the judge.

HATCH: OK. Did you know anything about these allegations?


HATCH: OK. Before they became public last year?

KAVANAUGH: No. When they -- when they became public, the first thought I had was no -- no woman should be subjected to sexual harassment in the workplace, ever, including in the judiciary -- especially in the judiciary. And when I heard -- when that became public, I think it was in December, it was a -- was a gut punch. It was a gut punch for me.

HATCH: It was for me too.

KAVANAUGH: It was a gut punch for the judiciary. And I was shocked, and disappointed, angry, a swirl of emotions. No woman should be subjected to sexual harassment in the workplace. And I applaud -- Chief Justice Roberts appointed a committee of judges to establish better procedures. Chief Justice Garland did the same thing for our court.

And those are first steps. I don't think they are final steps by any stretch. And what -- this is part of a much -- much larger national problem of abuse and harassment. And one of the things we've learned is we need better reporting mechanisms. Women, in particular, in the workplace, need to know if they're the victim of harassment, where to report it, immediately, who -- who to report it to.

They need to be known -- know that they'll be safe if they report it. They need to have a safe working environment and be safe if they report it. They won't be retaliated against. And they'll be protected if they report. And that's part of the steps, or one of the steps that's, I think, being improved as a result of the working group, or a committee, that the chief justice has appointed.

And I'm interested in doing everything I can to assist those efforts to make those workplaces safe. Again, it's part of a broader national problem. Whether it's priests, or teachers, or coaches, or doctors, or business people, or news people, there's a lot -- there's a lot of -- there's a broad national problem that needs to be addressed, including in the judiciary.


KAVANAUGH: And I applaud Chief Justice Roberts for doing so.

HATCH: OK. I'd like to talk to you, now, about these.


HATCH: I'd like to talk to you, now, about the Chevron doctrine.


HATCH: Now, this is an important judicial doctrine that makes -- that makes -- that takes its name from the Supreme Court case that created it back in the 1980s. In that case...


HATCH: ... the Supreme Court instructed federal courts to defer an agency's interpretation of the law if the law is, quote, "ambiguous", unquote. Some of your academic writings express skepticism about the Chevron doctrine, and concern that it allows an administration to impose its policy preference by avoiding the political process.