US Trousers - Court hears multi million dollar claim against dry cleaner for trousers
NAME: US TROUSERS 20070613I TAPE: EF07/0702 IN_TIME: 10:11:32:10 DURATION: 00:02:02:01 SOURCES: AP TELEVISION/ABC DATELINE: Washington, DC, 12 June 2007; file RESTRICTIONS: see script SHOTLIST: AP Television ++Mandatory Courtesy: Sketches by Dana Verkouteren++ 1. Sketch showing Roy Pearson, administrative law judge, showing jacket to judge, with defendants, Jin and Soo Chung in background 2. Sketch showing Judge Judith Bartnoff 3. Various sketches of defendants Jin and Soo Chung and Chris Manning, their lawyer ABC - No Access North America / Internet 4. The Chungs and Manning walking out of courthouse 5. Wide of Chunds and Manning 6. SOUNDBITE: (English) Chris Manning, lawyer for Jin and Soo Chung: "I think what we've seen today is the case really lacks all merit. It's a case about an unhappy customer at a dry cleaners and an unhappy customer at a dry cleaners that should have just used the free market system and gone down the street to another dry cleaners, not harassed my clients and filed such a ridiculous lawsuit." AP Television ++Mandatory Courtesy: Sketches by Dana Verkouteren++ 7. Various of sketch of Roy Pearson showing jacket to judge ABC - No Access North America / Internet 8. SOUNDBITE: (English) Chris Manning, lawyer for Jin and Soo Chung: "It's difficult for the Chungs. It's a very trying experience obviously, they would much rather be in the dry cleaners serving their customers, but they are getting through it. They know that the case is going well and they're hopeful that tomorrow all of this will be behind them." 8. Close-up and zoom out of tag on trousers the Chungs allege Pearson dropped off at cleaners 9. SOUNDBITE: (English) Chris Manning, lawyer for Jin and Soo Chung: "Well, I think we all know who's suffered in this case and the individuals who've suffered in this case are the Chungs, not Mr. Pearson. It was certainly an interesting day that wasn't an exception, and without a doubt the Chungs are the victims here not Mr Pearson." 10. Various of Pearson leaving the courthouse STORYLINE: A US judge is suing a Washington dry cleaner for 54 (m) million US dollars over his lost trousers. Administrative law judge Roy Pearson broke down and wept in the courtroom on Tuesday as he recalled the trousers that led to his lawsuit. He said he was acting in the interest of all the city's residents against what he says are poor business practices. Chris Manning, lawyer for Jin and Soo Chung, said the case " really lacks all merit." "It's a case about an unhappy customer at a dry cleaners and an unhappy customer at a dry cleaners that should have just used the free market system and gone down the street to another dry cleaners, not harassed my clients and filed such a ridiculous lawsuit," he added. Pearson first sued Custom Cleaners over a pair of trousers that went missing two years ago. He was originally seeking about 67 (m) million US dollars but reduced the amount last week. The original demand was based on his strict interpretation of the city's consumer protection law, which imposes fines of 1500 US dollars per violation. According to court documents, Pearson's problems with the cleaners began in May 2005 when he brought in several suits for alterations. A pair of trousers from one suit was allegedly missing when he requested it two days later. He said Soo Chung tried to give him a pair of charcoal gray trousers. As Pearson explained that these were not the trousers for the suit, he choked up and left the courtroom in tears. Pearson originally asked the cleaners for 1,000 US dollars, the full price of the suit. But because the Chungs insisted the trousers had been found, they refused to pay. Pearson said they were not his trousers, and decided to sue. Manning has said the cleaners made three settlement offers to Pearson, but the judge was not satisfied and increased his demands, including asking for money to rent a car so that he could drive to another business. Pearson is no longer seeking damages related to the lost trousers and is now focusing his claims on two signs in the shop that have since been removed. One claimed "Satisfaction Guaranteed,'' the other "Same Day Service.''
US Coleman
AP-APTN-2330: US Coleman Friday, 28 May 2010 STORY:US Coleman- REPLAY Former child actor Gary Coleman dies after suffering brain haemorrhage LENGTH: 01:19 FIRST RUN: 2130 RESTRICTIONS: See Script TYPE: Eng/Natsound SOURCE: Various STORY NUMBER: 646907 DATELINE: Various - FILE LENGTH: 01:19 CLIENTS PLEASE NOTE: ALL SUBSCRIBERS PLEASE ENSURE TV FILM CLIPS ARE CLEARED FOR MEDIA BROADCAST AND/OR INTERNET USE OR THAT THEY COME WITHIN THE PROMOTIONAL WINDOW FOR YOUR TERRITORY. CONTACT DETAILS, WHERE AVAILABLE, MAY BE FOUND AT THE END OF THE SCRIPT. CLIENTS PLEASE NOTE: COMMERCIAL MUSIC, MUSIC VIDEO AND OR PERFORMANCES, MUST BE CLEARED ACCORDING TO YOUR OWN LOCAL MUSIC PERFORMANCE AND COPYRIGHT AGREEMENTS WITH YOUR APPLICABLE COLLECTING SOCIETY. DETAILS OF THE TRACKS, WHERE AVAILABLE, MAY BE FOUND AT THE END OF THE SCRIPT. YOU HAVE EDITORIAL RESPONSIBILITY FOR USE OF ALL AND ANY CONTENT INCLUDED WITHIN THE SERVICE, AND FOR LIBEL, PRIVACY, COMPLIANCE AND THIRD PARTY RIGHTS APPLICABLE TO THEIR TERRITORY. SONY PICTURES HOME ENTERTAINMENT - SEE ABOVE RESTRICTIONS AP PHOTOS - NO ACCESS CANADA/ FOR BROADCAST USE ONLY - STRICTLY NO ACCESS ONLINE OR MOBILE AP TELEVISION - AP CLIENTS ONLY KABC - NO RE-USE/RE-SALE WITHOUT CLEARANCE SHOTLIST: SONY PICTURES HOME ENTERTAINMENT - CLIENTS PLEASE FOLLOW RESTRICTIONS AT THE TOP OF THE SCRIPT Date and location unknown 1. Various of Gary Coleman on US television sitcom "Diff'rent Strokes" and clips from the show AP PHOTOS - NO ACCESS CANADA/ FOR BROADCAST USE ONLY - STRICTLY NO ACCESS ONLINE OR MOBILE FILE: New York, 26 February 2008 2. STILL of Coleman appearing on the NBC "Today" programme AP PHOTOS - NO ACCESS CANADA/ FOR BROADCAST USE ONLY - STRICTLY NO ACCESS ONLINE OR MOBILE FILE: Hawthorn, California, 31 July 2006 3. STILL of Coleman walking into police headquarters after being booked for punching a female fan AP TELEVISION - AP CLIENTS ONLY FILE: Santa Maria, California, 28 February 2005 4. SOUNDBITE (English) Gary Coleman, actor and radio personality: "These are people in a court process that need to have their time and their day and their due justice, whatever that justice may be, without our input, without our interruptions, without our interruption on that. And, the less of us, and the less of them that are here, the more likely the process is going to be fair for them in there." AP TELEVISION - AP CLIENTS ONLY FILE: Los Angeles, 21 September 2003 5. Coleman wearing tuxedo KABC - NO RE-USE/RE-SALE WITHOUT CLEARANCE FILE: Los Angeles, 6 August 2003 6. Coleman in grey suit shaking hands with someone STORYLINE: Gary Coleman, the pint-sized child star of the popular 1970s TV sitcom "Diff'rent Strokes" died on Friday after suffering a brain haemorrhage at the age of 42. Life support was terminated and Coleman died at 12:05 p.m. local time (18:05 GMT) with family and friends at his side, a Utah Valley Regional Medical Centre spokeswoman said. Coleman, with his sparkling eyes and perfect comic timing, became a star after "Diff'rent Strokes" debuted in 1978. He played Arnold Jackson, the younger one of a pair of African-American brothers adopted by a wealthy white man. The series lives on thanks to DVDs and YouTube, but its equally enduring legacy became the troubles in adulthood of its former child stars. Dana Plato, who played the boys' white, teenage sister, committed suicide in 1999. Todd Bridges, who played the older brother Willis, was tried and acquitted of attempted murder. Coleman's popularity faded when the show ended after six seasons on NBC and two on ABC. He remained estranged from his parents, Sue and Willie Coleman, who said they learned about his hospitalisation and death from media reports. Sue Coleman said she wanted to reconcile and had been patiently waiting for her son to be ready. In 1989, when Gary Coleman was 21, his mother filed a court request trying to gain control of her son's six (m) million US dollar fortune, saying he was incapable of handling his affairs. He said the move "obviously stems from her frustration at not being able to control my life." Coleman chafed at his permanent association with "Diff'rent Strokes" but also tried to capitalise on it through minor reality shows and other TV appearances. His adult life also was marked with legal, financial and health troubles, suicide attempts and even a 2003 run for California governor. Coleman suffered continuing ill health from the kidney disease that stunted his growth. He suffered the brain haemorrhage on Wednesday at his Santaquin home, 55 miles (88 kilometres) south of Salt Lake City. A statement from his family said he was conscious and lucid until midday on Thursday, when his condition worsened and he slipped into unconsciousness. Coleman was then placed on life support. Coleman was born on February 8, 1968, in Zion, Illinois, near Chicago. His mother told Ebony his kidney disease was diagnosed when he was two years old. He underwent his first transplant at age 5. He attracted attention when he took part in some local fashion shows and people suggested he should get work performing in commercials, which he then did, she said. She stayed with her son in California while he was making "Diff'rent Strokes," with her husband Willis, a pharmaceutical company worker, staying behind in Illinois. "Diff'rent Strokes" debuted on NBC in 1978 and drew most of its laughs from the tiny, 10-year-old Coleman. Race and class relations became topics on the show as much as the typical trials of growing up. Coleman was an immediate star, and his sceptical "Whatchu talkin' 'bout?" - usually aimed at Willis - became a catchphrase. The attention his starring role brought him could be a burden as well as a pleasure. Coleman said in 2001 that he would do a TV series again, but "only under the absolute condition that it be an ensemble cast and that everybody gets a chance to shine." Coleman's kidney disease required dialysis and at least two transplants. As an adult, his height reached only 4 feet 8 inches (1.46 metres). He continued to get credits for TV guest shots and other small roles over the years, but in 2001 he said he preferred earning money from celebrity endorsements. Coleman was among 135 candidates who ran in California's bizarre 2003 recall election to replace then-Governor Gray Davis, whom voters ousted in favour of Arnold Schwarzenegger. Coleman finished in eighth place with 12,488 votes, or 0.2 percent, just behind Hustler magazine publisher Larry Flynt. Legal disputes dogged him repeatedly, and in a 1993 television interview, he said he had twice tried to kill himself by overdosing on pills. He moved to Utah in fall 2005, and according to a tally in early 2010, officers were called to assist or intervene with Coleman more than 20 times in the following years. The responses included a call where Coleman said he had taken dozens of Oxycontin pills and wanted to die. Some of the disputes involved his wife, Shannon Price, whom he met on the set of the 2006 comedy "Church Ball" and married in 2007. In September 2008, a dustup with a fan at a Utah bowling alley led Coleman to plead no contest to disorderly conduct. The fan also sued him, claiming the actor punched him and ran into him with his truck. 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SENATE JUDICIARY COMMITTEE HEARING: BRETT KAVANAUGH NOMINATION - COMMITTEE ISO 1400 - 1530
1330 KAVANAUGH HRG CMTE STIX FS1 79 UNITED STATES SENATE COMMITTEE ON THE JUDICIARY HEARING: Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States (Day 3) Full Committee DATE: Thursday, September 6, 2018 TIME: 09:30 AM LOCATION: Hart Senate Office Building 216 PRESIDING: Chairman Charles Grassley INTRODUCERS: The Honorable Condoleezza Rice Former Secretary of State Senior Fellow at Hoover Institution Professor at Stanford University Stanford, CA The Honorable Rob Portman United States Senator State of Ohio Ms. Lisa S. Blatt Partner Arnold & Porter Washington, DC PANEL I The Honorable Brett M. Kavanaugh PANEL II Mr. Paul T. Moxley Chair American Bar Association Standing Committee on the Federal Judiciary Salt Lake City, UT Mr. John R. Tarpley Principal Evaluator American Bar Association Standing Committee on the Federal Judiciary Nashville, TN PANEL III MAJORITY Mr. Luke McCloud Former Law Clerk Associate Williams & Connolly LLP Washington, DC Ms. Louisa Garry Teacher Friends Academy Locust Valley, NY The Honorable Theodore B. Olson Partner Gibson Dunn & Crutcher Former Solicitor General United States Department of Justice Washington, DC Ms. Colleen E. Roh Sinzdak Former Student Senior Associate Hogan Lovells LLP Washington DC Professor Akhil Amar Sterling Professor of Law and Political Science Yale Law School New Haven, CT MINORITY: The Honorable Cedric Richmond U.S. Representative, Louisiana, 2nd District Chairman, Congressional Black Caucus Ms. Rochelle Garza Managing Attorney Garza & Garza Law Brownsville, TX Ms. Elizabeth Weintraub Advocacy Specialist Association of University Centers on Disabilities Silver Spring, MD Ms. Alicia Baker Indianapolis, IN Professor Melissa Murray Professor of Law New York University School of Law New York, NY PANEL IV MAJORITY: Mr. A.J. Kramer Federal Public Defender Office of the Federal Public Defender for the District of Columbia Washington, DC Ms. Rebecca Taibleson Former Law Clerk Foxpoint, WI Ms. Maureen E. Mahoney Former Deputy Solicitor General of the United States Washington, DC Mr. Kenneth Christmas Executive Vice President, Business & Legal Affairs Marvista Entertainment Los Angeles, CA MINORITY: Ms. Aalayah Eastmond Parkland, FL Mr. Jackson Corbin Hanover, PA Mr. Hunter Lachance Kennebunk, ME Ms. Melissa Smith Social Studies Teacher U.S. Grant Public High School Oklahoma City, OK PANEL V MAJORITY: Ms. Monica Mastal Real Estate Agent Washington, DC The Honorable Paul Clement Partner Kirkland & Ellis LLP Former Solicitor General United States Department of Justice Washington, DC Professor Adam White Executive Director The C. Boyden Gray Center for the Study of the Administrative State Antonin Scalia Law School George Mason University Hamilton, VA Professor Jennifer Mascott Former Law Clerk Assistant Professor of Law Antonin Scalia Law School George Mason University Arlington, VA MINORITY: Mr. John Dean Former Counsel to the President President Richard M. Nixon Professor Rebecca Ingber Associate Professor of Law Boston University School of Law Boston, MA Professor Lisa Heinzerling Justice William J. Brennan Jr. Professor of Law Georgetown University Law Center Washington, DC Professor Peter Shane Professor Law Moritz College of Law Ohio State University Columbus, OH LUNCH BREAK [1:58:29 PM] Supreme court justice. Sheldon Whitehouse is questioning Kavanaugh. >> -- Protection they feel you are owed. It's up to you do do that. >> I spoke to reporters at the direction and authorization of judge stark. >> You are citing the exact same words you answered me with beforehand. >> It's relevant to the answer of the question, if I could continue? >> What I would really like to get is an answer to the actual question I asked rather than a disquisition in the general topic area I asked. This is a very simple thing. You either will or will not or if you wish, this is -- you're welcome to say, look, I would like to take that under advisement and get back to you after some reflection and consultation, but our situation right now is that reporters may very well information about what you told them during the Starr Clinton investigation that they are unwilling to divulge now because you were a confidential source. Can you release them from that by simply saying here publicly, anybody I talked to, say what I said, it's not a problem. I don't need confidentiality anymore. >> Senator, if I could just get 30 seconds on this. If that's okay. >> 30 responsive seconds, I'm all for that. Go for it. >> Okay, I spoke to the reporters at the direction and authorization of judge Starr and therefore judge Starr would be the one who would be part of that process. I was not acting on my own. WHITE HOUSE >> No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe confidentiality. Starr's name has not come up. KAVANAUGH >> I was in turn acting as part of that office, and therefore I guess -- >> But it's yours to divulge. >> It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. [2:00:31 PM] KAVANAUGH I talked, of course on the record. WHITEHOUSE >> The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law? On I the general topic area I asked. This is a very simple thing. You either will or will not or if you wish, this is -- you're welcome to say, look, I would like to take that under advisement and get back to you after some reflection and consultation, but our situation right now is that reporters may very well information about what you told them during the Starr Clinton investigation that they are unwilling to divulge now because you were a confidential source. Can you release them from that by simply saying here publicly, anybody I talked to, say what I said, it's not a problem. I don't need confidentiality anymore. KAVANAUGH >> Senator, if I could just get 30 seconds on this. If that's okay. WHITE HOUSE >> 30 responsive seconds, I'm all for that. Go for it. KAVANAUGH >> Okay, I spoke to the reporters at the direction and authorization of judge Starr and therefore judge Starr would be the one who would be part of that process. I was not acting on my own. 2:00:02 PM WHITEHOUSE >> No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe confidentiality. Starr's name has not come up. KAVANAUGH >> I was in turn acting as part of that office, and therefore I guess -- >> But it's yours to divulge. >> It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. I talked, of course on the record. >> The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law? >> There's been justice department -- 2:01:02 PM >> Statutory law. Is there a statute that limited the protected the president against due process of law. >> There's been justice department law, but -- >> Justice department is not a law-making body, is it? >> Oh, I think it does -- I guess the term law encompasses regulations. >> Directive to the department's own employees, correct? That's what you're talking about. >> Well, that's encompassed, as I think about it, within the concept of law. >> Well, if you're going to go to the general concept of law, perhaps, but there is no law law that congress has ever passed that protects a president from either indictment or due process of law, correct? >> Congress has never passed something. The justice department -- >> Has an opinion about it, I understand that. >> Which is binding. >> On the justice department. So if, as a matter of law, a 2:02:07 PM sitting president cannot be indicted, that must be constitutional law, since there is no statutory law, as a proposition of logic, is that not correct? >> That is not correct, as I see it, because if the justice department has law that binds the justice department, that's another source of law as well. >> Okay. So let's go back to Georgetown law journal, 1998. And a conference you attended. And you spoke at it. And the panel that you were on was asked the question, who on the panel believes as a matter of law that a sitting president cannot be indicted during the term of his office. That's you and your hand shot 2:03:08 PM up. And I think you probably have seen the film clip of that because it's been posted already. Did you mean as a matter of law that olc guidance when you said that? >> I know that right before the passage you're reading, I said there's a lurking constitutional question. >> Bingo. >> The fact that I said that judges that I did not have a position on the constitution -- >> Although you shot your hand up when the question as a matter of law, a sitting president cannot be indicted came up, and it seems to me there are really only two kinds of law unless you're really stretching the envelope here. One is laws that congress passes and the other is laws that are founded in the constitution. And internal policy directive within the department of justice, I think it's a real stretch to call that law. >> Well, I appreciate that, senator, but it has been the 2:04:08 PM long-standing justice department position -- >> Policy, yes. >> And right before -- >> Is that what you meant when you put your hand up, do you know? >> That was 20 years ago, I don't know. But I know right -- >> Here's why it's important. You have been telling us I have never taken a position to say this was a constitutional principle. I have never taken a position on the constitution on that question. I did not take a position on constitutionality, period. I have never taken a position on constitutionality of indictment. Those are all things you have said during the course of this hearing. It looks to me like that's a bit of a conversion. >> Right before that, though, senator, to be fair to me, I did say there's a lurking constitutional question which implies -- >> Then you were asked to answer that question by putting your hand up, and you put your hand up saying aye, so it seems to me you answered your question by putting your hand up the way you did. >> The question wasn't the 2:05:09 PM constitution. If question was law. >> That's what I'm saying you're saying. You're saying what you meant was the olc policy position when you answered a question about law. >> What I said is I don't know what I was thinking in a panel 20 years ago, but I do know having looked at it that the question was about law, that the justice department position has been consistent for 45 years. >> As a matter of constitutional law. Right? The justice department position reflects a view of constitutional law. >> But it's an interpretation binding on everyone in the justice department, as I understand it. >> Because they're employees of the department of justice. In the same way that you can't steal the computer or you can't, you know, bring a pet into your office, whatever rules there might be. >> Well, I think internal regulations are still law. >> Okay. As long as it's your position that's what you meant by matter of law. >> Just to make it clear, I said I don't know what I meant. When I look at it now, that's what I think. >> So let's go on to recusal. 2:06:12 PM And let me -- there's a case that is somewhat on point on all of this. It's the kaperin case out of West Virginia. As you'll recall, it was a civil case, right? >> Yes. >> And it came to the supreme court because there was an objection that a judge should not sit basically the problem should not sit in his own cause, so to speak. And the problem was that one of the litigants had received three -- the judge had received $3 million in political support from one of the litigants. Is that the fact pattern, correct? >> I believe that's correct, senator. >> And the standard that the court came up with was whether that judge had -- whether that donor, that party, had a significant and disproportionate influence -- ooh, we didn't spell influence right, in placing the judge on the case. Correct? >> I believe so. 2:07:13 PM >> And so justice Kennedy -- >> The justice Kennedy opinion. >> Decided the constitution requires recusal. >> Mm-hmm. >> If the constitution requires recusal of a judge who was the beneficiary of a $3 million piece of political support to help him get into office, wasn't it follow per force that the person who actually appointed the judge would be in a similar or stronger position of significant and disproportionate influence? >> Senator, the question in the Caperton case, as I said, was because of the amount of money, the financial interest, which is a whole separate branch. >> Correct, which would have a dissignificant and disproportionate influence on the judge becoming a judge, right? That's what the connection was. The spending of money by the party helped make the judge the judge. 2:08:13 PM In this case, if a criminal matter involving president trump came before you, he wouldn't have just spent $3 million to make you a judge. He would have flat out made you the judge, 100% finito, right? >> Senator, the question of recusal is something that is governed by precedent, governed by rules. One of the underappreciated aspects of recusal is whenever I have had a significant question of recusal as a judge on the D.C. Circuit, I have consulted with colleagues and so too they have consulted with me when they had their own questions. That's part of the process. >> Isn't actually the 100% responsibility for direct appointment more significant in terms of influence than simply making a big political contribution to a judge? That's like 100% responsibility. Appointed, period, done. >> Well, just on the -- I don't mean to quibble, but on the premise of your question, the senate obviously, it's a shared 2:09:13 PM responsibility, the president and senate participate in the supreme court confirmation process. Appointment process. >> You were very clear yesterday in our discussion it was the president of the United States who appointed you. And this is about that. This is about how you get to the seat, and you got appointed by the president. Would that not pertain as a significant influence? I mean, what possible greater influence could there be on who is in the seat that you're nominated to than the nomination of the president to that seat? >> So two points if I could, senator. First, I have said already. I don't believe it appropriate in this context to make decisions and recusal is a decision on a case, so I don't think it's appropriate. >> If it's not appropriate, let me move on with something else because let me ask you about the 2:10:14 PM question of presidential shall we say conflicts with prosecutors. When you were in the Starr prosecution effort, you were exposed to this contest with the Clinton white house. And you described the Clinton white house as running a, and I'm quoting you here, prejudicially approved smear campaign was one phrase you used. A disgraceful effort to undermine the rule of law was another phrase you used. An episode that will forever stand as a dark chapter in American history. >> That was about something different. >> And you prejudicially approved smear campaign against Starr was what the topic was. You then said in a later memo that the president has tried to disgrace Starr and his office 2:11:14 PM with a sustained propaganda campaign that would make Nixon blush, and he should be forced to account for that. Have your views of presidential interference or smearing of independent or special counsel changed since you made those statements? >> Those comments were in a memo written, as I recall -- >> Two memos. But close enough, yeah. >> Well, the one that I'm remembering, written late at night after an emotional meeting in the office dashed off and some of the language in that, as I think I told you, or told some of the senators in individual meetings, was heated. And I understand that. But that was my memo at the time. I think I have been clear, I don't want to talk about current events because I don't think -- I'm a sitting judge as well as a nominee. I don't think I should talk 2:12:15 PM about current events. >> How about the guy, the guy who was outraged at being on the receiving end of a smear campaign. Does that guy still exist or is he long gone? >> Well, that's -- that's what I wrote at the time, how I felt one night after a meeting we had in August of 1998, I believe, at least the memo I'm remembering. >> Last topic because my time is getting short here. The hypothetical problem that I have has to do with an appellate court which makes a finding of fact. Asserts a proposition of fact to be true. And upon that proposition, hangs the decision that it reaches. And the question is, what happens when that proposition of fact actually in reality, you have referenced the real world so often, actually in reality 2:13:16 PM turns out not to be true? What is the obligation of an appellate court if it has hung a decision on a proposition of fact and then the proposition of fact turns out not to be true? Does it have any obligation to go back and try to clean up that discrepancy, to clean up that mess? >> I think, senator, it's probably hard to answer that question in the abstract because -- >> But if I give you specifics, then you'll say you can't answer that because that would be talking about a case. So I'm kind of in a quandary here with you. >> I was going to biv you a couple thoughts, which I think that would be wrapped up in the question of precedent and stare decisis, and one of the things you could look at, one of the factors you could look at, how wrong was the decision, and if it's based on an erroneous factual premise, that is clearly one of the factors you would -- >> You would look at -- >> Mistake of history. Sometimes there have been cases where there have been mistakes of history in decisions, 2:14:17 PM mistakes of fact. >> Quickly, the two examples that come ready to mind, one is Shelby county. In which the court said in looking at whether there was still any kind of institutional racism in the preclearance states they needed to worry about, nope, the quote, country has changed and current conditions, to use their phrase, are different. First, where do you suppose the five justices who made that decision got expertise in vestigial state racism to make that determination at all? >> I can't comment on the decision other than to say it's a precedent. I understand the point you're making about -- >> Because you do know that since then, both North Carolina was found to have targeted minority votes with, quote, surgical precision, which is pretty rough phrase. And Texas got after it so frequently that a federal court finally said, look, we think there's a penchant for 2:15:17 PM discrimination here. So if you have got the five judges saying that it's over in these states and then it turns out it really isn't over, that there's actually still surgical precision targeted of minority voters and there's a penchant for discrimination in the Texas state government, that ought to be something that might cause some reconsideration of the Shelby holding, oughtant it? >> So three things on that. I think, senator, one, I think the case did not strike down preclearances opposed to saying the formula needed -- >> De facto it did. Preclearance ended in all those states with that decision. >> I understand that. >> So I have one minute left. Let me jump to the other example. Because I think it's an important one and my time is running out. That is citizens united. Citizens united took on the proposition that the unlimited spending that it authorized by people capable of unlimited spending would be both 2:16:20 PM transparent and independent. Correct? >> The court upheld the disclosure requirements in that case, if that's the question. >> It said more than that. It said it's the transparency and the Independence of the spending that it authorized that were the guardians against the corruption. >> Right. So it wasn't contributions to parties or candidates, correct. >> So the first amendment ends where efforts to corrupt begin, correct? You don't have a first amendment right to corrupt your government. KAVANAUGH >> The supreme court has relied on corruption in the appearance of corruption as part of the test, and it's -- you know this very well. >> In order to fend off the argument that big money corrupts and absolute money corrupts absolutely, they said no because there's going to be independents and transparency. In fact, if I remember correctly, they said -- I don't have it in front of me, oh, here 2:17:21 PM we go. The separation between candidates and independent expenditures negates the possibility of corruption. So if they're wrong factually about this spending being transparent, and we know that they are from what we have seen since then, and if they're wrong factually about the Independence of this spending and we know they are from actual events that have happened since then, then that strikes a pretty hard blow against the logic of citizens united, does it not? >> So citizens united, as you know, is a precedent of the supreme court, so entitled the respect as a matter of stare decisis. As you know and I would just reiterate, if someone wants to challenge that decision, they -- one of the things that anyone can raise about any case is that it's based on a mistaken premise or mistaken factual premises, and that's the kind of things courts are open to hearing. >> My time has expired. I thank the chairman for the 2:18:23 PM indulgence of the extra minute. >> A couple things. First, I would note -- BREAK IN CNN COVERAGE. NO OTHER CABLE NEWS AIRING RIGHT NOW. 2:19:25 PM ? Experience amazing at your Lexus dealer. >> Dana: Back to the hearing. The >> It was a different aspect of that investigation. >> Senator Cruz. CRUZ >> Thank you, Mr. Chairman, I want to note at outset, senator from Rhode Island took his questioning as an opportunity to inpune residents of north Carolina and Texas as having a pension for bigotry and I appreciate the compassion from the senator from Rhode Island. I will point out, let you rise to the defense of your own state and point out in the state of Texas, that we had just a few years back three statewide elected African American officials, all Republican, I might note, I believe at the time was the most of any state 2:20:26 PM in the union and I think it is the case Rhode Island has none. [SHOUTING in the background] >> For the record, I apologize to my colleague if he takes umbridge about reference to Texas, this was in Texas referring to the decision-makers in that case. >> Senator, you have 30 additional seconds. CRUZ >> Senator: Judge Kavanaugh, yesterday you had some discussion with senator Lee about what it means to be a textualist and I want to go back and revisit that conversation and ask, for someone at home, who is watching this, why should it matter to them if a judge is a textualist? What difference does it make to somebody not involved with the 2:21:27 PM supreme court? KAVANAUGH >> Judge Kavanaugh: Senator, goes to constitution and the system the framers designed with a legislative branch and executive branch and judicial branch that were all separate, as was said in federalist 78, the judiciary does not exercise will, but it exercises judgment. The policy decisions are made by the legislative branch, with the president, of course, in terms of signing legislation, so the house issue the senate and the president. The president enforces federal law, comes to the judiciary. When we interpret a statute, if we, as judges must adhere to the text of the statute, why is that? Two reasons, I think are paramount, the first is the statute as written is what was passed as a formal matter by the congress, by both houses of the congress, signed by the president into law. 2:22:28 PM A formal matter, that is the law. So if we're going to exercise judgment, not will, we need to adhere to the law as passed and the law as passed reflected in written words that were, went through both houses and signed by the president. Secondly, in supporting that, as practical matter, legislation is a compromise. And within the senate, within the house, with the president, as well, lots of compromises are inherent in any legislative product, that is what my experience shows, that is what I know your experience shows, as well, senator. So when a case comes to court, statute comes to court, you know, we upset the compromise that you so carefully reached and where people might have given up this for that in terms of the legislative final language and we then insert ourselves after the fact into the process and upset the compromise, if we don't stick to 2:23:29 PM the actual words of the text of the statute as passed by congress. So as both a formal matter of what the law is and as a practical matter of not inserting ourselves into the legislative process and upsetting the legislative process, it is critical that judges stick to the law, as written, text of statute as passed by congress and signed by the president. >> Senator: What in your view is the proper role, if any, for legislative history in statutory adjudication? Different justices have different views on this. >> Judge Kavanaugh: I think all judges are much more skeptical of legislative history than they once were, that's the influence, as you know, senator, largely of justice Scalia, very mainstream now to be skeptical of legislative history and again, two reasons support that skepticism, if not outright refusal to use it. The first is that the 2:24:30 PM legislative history, the committee reports or the floor statements made by individual members on floor of the house or senate are not part of the law as passed and that is important, it would be very easy, I said in my articles, for congress, if paragraph or page or more in legislative history in committee report that was really important, put it into the law, put it into the introduction of the law, have it be part of the law that is passed. When it is a committee report, might be seen by one committee and one house, might not have been seen by the other house, the president, of course, is part of the process, might never have seen it. To rely on that is to upset the formal process by which law is enacted in the United States. So, too, again, the legislative history, the committee report, is not part of the compromise that's reached between the house and the senate and the president, at least not ordinarily, allowing one committee, for example, or one member to go down to the floor 2:25:30 PM of the house or senate and to say something that will shape subsequent judicial interpretation and upset the careful compromise that is reflected in the tax that is passed by the senate, passed by the house and signed by the president. Again, both formal and practical reasons why skepticism of legislative histories warranted and why justice Scalia able to persuade justices across the spectrum, judges across the spectrum, legislative histories useful for understanding why something came to be, but not as tool for upsetting or changing your interpretation of the words of the statute. >> Senator: Also, yesterday when you were talking with senator Lee, I believe you described yourself as an originalist. Can you explain what that means to you, what you mean by that? And why, again, people at home should care, why that should 2:26:30 PM matter if a judge or justice is an originalist? >> Judge Kavanaugh: By originalist, it is important to be clear, there are different things people hear when they hear the term originalist. There was an old school of origin intent, subjective intention of the drafters or ratifiers and that is not really the proper approach in my view, for similar reasons to the discussion of legislative history with statutes. By originalist, what I've meant is original public meaning or the constitutional textualism is the term I use that refers to the same concept, which is pay attention to the words of the constitution. The constitution is article 6 of the constitution makes clear, is law. It is not aspirational principles, it is law, the supreme law of the land. In that sense, it's superior to statutes, but law-like just like statutes, superior law. The constitution itself 2:27:31 PM including the amendments, original constitution was itself a compromise, as law and it is a compromise reached Philadelphia in the summer of 1787 and of course Madison's notes and history that shows all the compromises were reached, probably most famous compromise is the compromise that allows for representation according to population in the house, representation according to state and the senate, the Connecticut compromise as it is often referred to. It is important for judges again, not to upset the formal law that is written in the constitution or to upset the compromises reached either in the original constitution or in the amendments, now one key thing to add to that is precedent is part of the constitutional interpretation, as well, as federalist 78 makes clear and judicial power clause of article 3 makes clear, so a system of precedent is built into how judges interpret the constitution and constitutional 2:28:31 PM cases on an ongoing basis, that is part of the proper mode of constitutional interpretation and important system of precedent. >> Senator: Thank you. Let's shift back to the topic you and I discussed yesterday, religious liberty, a topic of consideration interest and importance to a great many Americans. In private practice, you wrote an amicus brief in the Santa Fe case for congressmen Steve Largin and J.C. Watts. Can you describe what that case was about and your representation there? >> Judge Kavanaugh: I will. Attorney general for the state of Texas and did outstanding job. I remember participating in the moot court as the senator recalled. Didn't turn out too well, judge. You did an excellent job, senator, I remember being there. The case involved prayer before 2:29:33 PM a football game. The supreme court had number of cases on religious expression in schools. School sponsored prayer at school events is often impermissible, Lee versus Wiseman. The same time, when students want to express themselves in some way, t-shirt, clothing or saying their own prayer, say before a football game or other events, the students want to say a prayer for themselves or there is an open forum, students are allowed to say whatever they want and one student chooses to talk about religion or say a prayer, that's on the generally on the free speech side of the house, freedom of religion side of the house of the supreme court precedent, which would protect religious liberty of the 2:30:36 PM individual in that circumstance. The Santa fe case came, I think senator Cornyn would say, well, senator Cornyn would say on free speech freedom of religion side of the house. The supreme court thought the school was too involved, I would say, in the prayer opportunity in that case and thus attributed prayer in that case to the school and the supreme court therefore said that the prayer in that case was impermissible. It was very fact-specific, based on how some of the actual prayers had gone down in the school district there. So it was really in the gray area on the facts between the two principles, freedom of speech and freedom of religion for individuals, on the one hand, no school-sponsored prayer, on the other and those two principles are part of the supreme court precedent that I think the courts have applied for a long time now. >> Senator: So what led you to want to take on that 2:31:37 PM representation in the amicus brief? >> Judge Kavanaugh: I think at that time I was asked to work on several cases involving religious liberty and religious speech. I also did a case in amicus in the good news club case. That was a case where a school district allowed use of the gymnasium auditorium area after school for whatever group from the community wanted to use the facility and they would allow everyone to come in, you know, boy scouts, the -- any community group to come in, but didn't allow religious groups to come in. That seemed to be discrimination against religion, discrimination against religious people, religious speech. I was asked to do a amicus brief that made the point religious people, religious speakers and 2:32:38 PM speech is entitled to its place on equal basis in the public square, including, in this case, the school auditorium or gymnasium. The supreme court agreed with that principle in that case, stating discrimination against religion in public facilities and in the nature of what was going on in that case was impermissible and violation of freedom of speech, freedom of religion and therefore unconstitutional. Those cases are important, it is important that the -- to recognize constitution, first amendment of the constitution, as well as many statutes, of course, protect religious liberty in the United States, religious freedom in the united States and I said in some of my opinions, we're all equally American, no matter what religion we are or no religion at all, religious speakers and a right to their place in the public square. >> Senator: Another case you 2:33:38 PM were involved in as a judge, you wrote dissent from denial of rehearing on bonds in the priest for life case. Can you tell the committee about that case and your opinion there? >> Judge Kavanaugh: That was a group that was being forced to provide certain kind of health coverage over their religious objection to their employees and under the religious freedom restoration act, the question was first was this substantial burden on the religious exercise and it seemed to me clearly it was. It was technical matter of filling out a form, in that case, they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were as religious matter objected to. Second question was, did the government have a compelling interest, nonetheless in providing the coverage to the 2:34:40 PM employees and applying the governing supreme court precedent from hobby lobby, I said the answer was yes, the government had compelling interest following justice Kennedy opinion and hobby lobby said the government did have interest in ensuring access and came down to least restrictive means prong of the restoration act and that prong was the act to my mind is an opportunity to see, is there a win/win in some respects? In other words, government interests in ensuring healthcare coverage, can that be provided without doing on the backs of the religious objector? That is what the court is looking for. The professor had written about. That case, it seemed to me the governor had avenues to ensure that the coverage was provided without doing so on the backs of the religious objectors and I so ruled following the supreme court precedent in hobby lobby and subsequent case Wheaton 2:35:41 PM college, they had an order I followed and seemed to me to dictate the result that I identified in the priest for life decent. Another case, to reiterate, overwhelmingly passed by congress in the early 1990 and signed by president Clinton and was important addition to the protection of religious freedom in the United States to supplement the constitutional protection that exists in the free exercise clause. >> Senator: Well, and I would note much like yesterday, when we discussed your pro Bono representation of the synagogue that priest for life using some on the democratic aisle paradigm suggested little guy and big guy, little guy against almost all powerful federal government and in that opinion, presumably because you felt the law dictated it, you sided with the priest for life in that 2:36:42 PM decision. >> Judge Kavanaugh: That's correct, senator, I think a lot of religious freedom cases, the supreme courts had, that has been the case. There was a prisoner, opinion written by justice Alito, I believe, unanimous, prisoners being Muslim prisoner being forced to shave his beard in violation of religious beliefs. Justice Alito wrote opinion for the supreme court saying that was substantial burden on his religion and was not necessary and that is just another example of how religious liberty protects all of us, no matter our religious briefs, that is principle of both of the constitution and religious freedom restoration act. >> Senator: Another case you were involved in that stood out to me personally, just being Cuban American, is that as I understand it, in November 1999, when Elian Gonzalez came to this 2:38:46 PM a question under the due process clause. And interestingly, it seemed that the ins had not -- was interpreting the refugee act in way that seemed stretch of the statutory language and was not some kind of formal regulation, so the question of Chevron deference to informal agency position was question in the case and I wrote the circ position and petition saying that the agency was stretching the language of the statute beyond recognition and doing so in way that was entitled to no deference because it was not in any kind of formal regulation, which years later turns out to be a position supreme court has agreed with in terms of administrative law, but in that case, I got involved because I was asked to get involved on moment's notice in case of purposes for people who needed help -- >> Senator: Let me ask one final 2:39:47 PM question, you've been nominated to the highest court in the land. As you know, there is another highest court in the land, that is the basketball court, atop the U.S. Supreme court courtroom and I believe no sitting justice has played regularly there since justice Thomas many years ago when he was a much younger justice. If you are confirmed, do you intend to break that tradition and return to having a justice play on the highest court in the land? >> Judge Kavanaugh: Well, I do, if fortunate enough to be confirmed justice Thomas did at some point get injured, I hope that precedent is not one I would follow, yes, indeed, senator. Thank you. >> Senator: Excellent, glad to hear it. GRASSLEY >> Before I call on senator -- BREAK IN COVERAGE / NO CABLE NEWS AIRING HEARING 14:42 KLOBUCHAR QUESTIONING KAVANAUGH GAP IN CC 2:47:36 PM KLOBUCHAR >> Senator: I'm going back to 2009, which isn't that long ago and the university of Minnesota law review and that is where you said we should not burden a sitting president with civil suits, criminal investigations, or criminal prosecution, and when you and I talked yesterday, you said that congress could still pursue an impeachment proceeding, right? KAVANAUGH >> Judge Kavanaugh: Yes, impeachment mechanism. KLOBUCHAR >> Senator: Your view back then, you wouldn't comment on it. Your view when you wrote this was that -- well, your view now is that congress should be able to pursue impeachment? KAVANAUGH >> Judge Kavanaugh: Well, the constitution -- KLOBUCHAR >> Jessica: Yes. KAVANAUGH >> Judge Kavanaugh: Specifies impeachment as tool in the constitution itself. KLOBUCHAR >> Senator: Go back to when you wrote this, not hypothetical, when you wrote this in 2009, you were thinking about it, did you think then and this is what you meant, that a president shouldn't have to be 2:48:37 PM investigated? You said it, right? >> Judge Kavanaugh: Well, the context there, I believe, senator, was talking about civil suits or criminal investigations or criminal lawsuits and it was not my position on the constitutionality, it was something for congress to consider and the idea was reflecting on my experience after September 11th and what we could do to make the presidency the most effective for the American people. >> Senator: I'm trying to understand in practicality when you look at last impeachment proceedings how you would do it if you didn't have an investigation, other ones used independent counsel, special counsel and if you don't have that, don't you effectively eviscerate the ich -- impeachment part of the constitution? >> Judge Kavanaugh: Not at all. >> Senator: Why would we want to foreclose our ability to use special counsel or independent 2:49:37 PM counsel? >> Judge Kavanaugh: So that is your decision ultimately in congress to decide, that is one view you just articulated and of course congress is not enacted any special deferral for civil suit, congress is stuck with Jones V. Clinton result from that case and of course stuck with the existing system of special counsels. >> Senator: To get back to where you were in 2009 when you wrote this as opposed to using a hypothetical. So we said several times here no one is above the law, I said that in my opening statement, but when you said this, you men no one is temporarily above the law, if a sitting president, she was in office and there was some crime committed, murder, white-collar crime, anything, you are say nothing this article, she shoot be subject to criminal prosecution? >> Judge Kavanaugh: That would 2:50:38 PM be issue for congress to consider if it wanted to pursue temporary deferral. There are statutes for members of the military, service members serving overseas, I think president Clinton in Clinton V Jones case cited that as something statutory deferral, not immunity, important to establish immunity from deferral. But timing of when a particular litigation will occur. I wouldn't call that above the call, I would call that a timing question. >> Senator: Okay, that would be a long time if a president was serving for four years or eight years, given and again, I'm reading the words, we should not burden sitting president with civil suits, criminal investigation or criminal prosecution, so it feels to me that was your view when you wrote that. >> Judge Kavanaugh: Well, it was an idea for congress to consider along with many other ideas about judicial confirmations and war powers and all reflecting, 2:51:39 PM that was reflecting on idea congress could consider, whole point was to make -- help the country do better based on my observations from five and a half years working in a white house where during war, during wartime. The >> Senator: Okay. Another topic, follow-up from senator Harris' questions from last night. She asked you questions about voting rights and ranking member of the rules committee and as she noted, many states have restricted access to voting since the supreme court's decision in Shelby county, struck down key provision of voting rights act. Brennan center, 23 states have more restricted voting laws than in 2010. Many laws challenged in court, some overturned, so here is one more question on this. Should courts consider these widespread efforts to restrict voting, what has been going on 2:52:40 PM since 2010, when ruling on challenges to statutes that effect the right to vote? >> Judge Kavanaugh: Well, I think in any particular case, senator, you'd want to see what the record established in the case was and the record could include what is going on in that particular state and I can imagine a factual record where that would include also potentially what is going on in other states, as well. >> Senator: Thank you. Thanks. That is by Brennan center and other nonpartisan organizations have found no evidence of widespread voter fraud and study by "Washington post" found only 31 credible instances of fraud from 2000 to 2014 out of more than 1 billion ballots cast. Do you believe there is evidence of voter fraud, do you believe I know you told senator Harris you watch, read some election law blogs, sitting here last night, and so have you read one of the articles on widespread voter fraud on one of the blogs you 2:53:42 PM mentioned? I'm just concerned because that is out there, I would think that is something that could be looked at? >> Judge Kavanaugh: Look at professor hassan's election law blog and that is one of the ones that I've looked at, other blogs, as well, and there is discussion of this issue and I would want as a sitting judge, want to see a record before me of what is going on in a particular case. I hesitate to opine on something I read in a law review article, I think you have a better sense of what is going on there, I would want a record to determine what the evidence in that particular case was. >> Senator: Okay. I want to turn now to affirmative action and senator booker raised these questions late last night. In a speech at notre dame you discussed long-standing exception, end quote, to "Basic equal protection right not to be 2:54:42 PM treated differently by government on account of your race," and summarize court debate on this issue and remarked on what basis is the court making those decisions, is there something in the text of the constitution that tells us one is good enough and the other is not good enough, not really. Again, this is common law judging to define the contours of the exception to the institutional right. What did you mean by that? >> Judge Kavanaugh: I meant in many areas of constitutional law, we have free speech rights, we have exceptions, analyzed usually talking about under strict jut nee, talked about the second amendment, how the second amendment right and so too in 14th amendment, equal protection context, what kinds of programs are permissible, consistent with equal protection right and the precedent is critical on this, precedent built up, means 2:55:44 PM FOX NEWS BREAKS FOR COMMERCIAL/ NO OTHER CABLE NEWS COVERING 2:57:03 PM >> Now back to the hearing. Amy klobuchar questioning. KAVANAUGH >> My note in that case, as I understand it was rooted in supreme court precedent, the krosen case. And krosen is where the court invalidated a Richmond contracting program, as I recall, and so that precedent made clear what conditions need to be satisfied before a racial -- a contracting program of that kind could be sustained consistent with the constitution and the analysis that we went through set -- suggested that at least as it was being applied, as I recall, the federal program ran afoul of the supreme court press department supplied in the krosen case so I was giving advice on how it would fit in 2:58:05 PM the krosen case. That's my best understanding. I haven't gone back to restudy it. >> Maybe we can get that in writing at some point if you want to look back at it. We've witnessed unprecedented attacks on journalists the past several months. This should be concerning because journalism is part of our democracy. My dad was a journalist his entire life. He wrote a blog. He's 90. You probably didn't read that one. In "New York Times," the court issues a landmark ruling for protections for the press when newspapers report on public officials they can say what they want unless it's untrue with actual malice. 2:59:05 PM You believe public officials could sue the media under any standard less demanding than actual malice and can you explain what that standard means to you. >> The supreme court has elaborated on and applied that standard repeatedly over time. I have, too, as a lower court judge. So that precedent is now been applied over and over again. I'm not aware of much effort to deviate from that standard. Interestingly in "New York Times" versus Sullivan, in the course of that opinion, the court said the sedition act of 1790 had been overturned -- >> We're going to continue following Brett Kavanaugh's confirmation hearing. It's time for "Shepard Smith reporting." I'm Dana. Here's shep. 3:00:10 PM >> Shepard: I Shepard Smith in New York. We're going right back to the hearings in just a moment. 3:02:05 PM The hearings for judge Kavanaugh continue on capitol hill. More news as it breaks. Now back to Washington. >> The relationships of reporters and their sources. Again, the criminal civil divide there is something that I think has been a part of the case law in the past where the criminal context has been deemed in some cases sufficiently compelling. But that is -- set forth part of the reporter's privilege and the relationship with confidential services in the role of the reporter in bringing light to democracy. >> Thank you. GRASSLEY >> I'd like to note we've had good luck in confirming this week eight federal judges to lifetime appointments. [Protesters in background]. 3:03:13 PM Eight federal judges, lifetime appointments this week. Last week we did seven judges, 12 were confirmed without any objection from Democrats, and so we've had a pretty good record of being able to show that you don't have anything to fear from lifetime appointments for federal judges like we've heard a big issue today. Go ahead. SASSE >> Thank you, Mr. Chairman. Judge, welcome back. Congratulations on your last day of interviewing in your life. I'd like to talk about precedent. You've been a law professor. How long? >> I started in 2007, the first year. >> Okay. Let's pretend you're a sixth grade civics teacher for our 20 minutes together instead of law professor. Precedence is important but I don't think the -- it's not 3:04:15 PM something the American people know and it's something that maybe we can benefit from. Has the supreme court ever made a mistake? >> The supreme court has made some major mistakes at times. Dread Scott, good example. >> How do you know when you have a mistake? >> Sometimes you know right away. I think in those cases with the dissents written in those cases, those dissenters knew right away. I think they were mistakes right away. Plessy versus Ferguson was right. >> What was the ruling count, do you remember? The vote? >> There was one dissenter, justice Harlan. He was the only dissenter in that case. >> Okay. It's so close to McCain's event that I know we shouldn't be joking right now, but I want to talk about lunch. Republican senators have lunch together three times a week. When we do, if somebody's phone 3:05:16 PM goes off, it was always John McCain's. He wouldn't know it came on full volume 10. It was like a ghost of lunches past. You wrote a really important article in catholic law review, the ten principles of good umpiring. It wasn't about you as basketball coach. It was about the job of a judge. I'm going to speed through them. I'm oversimplifying, but your top ten list was, if you're an umpire, you can't be a part son. You have no rooting interests, no fan favorites. Number 2, the rules have to exist before the game. Number 3, apply the rules consistently. 4, can't remakes the rules on your preferences. [Protesters in background]. >> It may be case that the NFL decides that a targeting penalty doesn't work. Number 5, you have to have 3:06:17 PM backbone or courage. Number 6, tune out the crowd. Number 7, an open mind. You think you know what case is coming before you and people may present arguments different than thought. Number 8, you need the demeanor and temperament. Number 9, you have to work with your colleagues and number 10, you have to be goods at explaining. Rule number 2, the rules have to exist before the game. You go from a paragraph by paragraph structure. You pause and have a long 2 B and you explain about precedent. Can you give us a 60 or 90-second view about how precedent relates to having rules of the game before the game? >> Yes. Precedent is important for stability and predictability. So to know what the rules are ahead of time is important for good judging and for good umpiring and to do it consistently with how it's been done before is part of the system of precedent. The point is when the rules are set ahead of time by the 3:07:18 PM precedent or by the law, when you're not making up the rules as you go along in the heat of the moment, which will seem unfair, which will seem like you're a partisan because you're going to seem like you're favoring one side or the other because of an allegiance to that team or favoritism. That's why in sports, as you know well, senator, because I know of your devotion to sports, there's a lot of detailed rules set forth about how the game is played and referees and umpires are supposed to call the game. That's to ensure that there is predictability, stability that the players can rely on that and that it's overall fairness. Due process is not a word used often in a refereeing contest but it is. Notice about what the rules are ahead of time so everyone has 3:08:19 PM confidence in the fairness of the game and that the umpiring, which is critical for the outcome of many games is done in a fair and impartial way. So facilitates I'm -- impartiality. The analogy is very strong, frankly. That's why I wrote that article. The chief justice that talked about the judge's umpire, because I coach and play a lot of sports. I thought about the analogy. I thought there's a lot of parallels between being a good judge and a good umpire. I'm a connoisseur of umpiring. >> I want to jump in here. I agree the analogy is strong and tight but it's imperfect. >> Yes. >> In a football G everything that happens is 3:09:23 PM predictable. Woody Hayes comes off the sideline and punches a player in the face. It was new and still nonparticipation. Coach can't play. Another 12th player can't play. There was a rule that spoke to that. What you're doing, it's not as defined. The cases that may originate are not as perfectly cabinable -- that's a word -- as in football what might help. Help me insurance the distinction of judging, umpiring and the supreme court made decisions in the past. It's not the case that every decision the supreme court has ever made is right and now a part of the permanent rule book. You sometimes have to throw them out. So sixth grade level, help us understand how from 1896 to 1954 you've repeatedly called brown the greatest moment in supreme court history. It's one of the greatest moments in American history as well. In those 58 years, the court was wrong for that whole time and yet the way we think about 3:10:23 PM precedent, we might have or six graders thinking of every decision as right. How do you reconcile the two? KAVANAUGH >> The factors that the supreme court looks at, the decisions not just wrong but really wrong. What the real world consequences are, including workability and reliance. One of the genius moves Thurgood Marshall, he started litigating case by case -- he knew plesse was wrong. He knew the way to bring about the change was to create a body of law that undermines the foundations of plessy. He started litigating cases and showing case by case that separate was not really equal. He did it in cases like Sweatt V. Painter 3:11:24 PM and many other cases. He built up a record over time that by the time he went to the supreme court to argue brown versus board of education, he had shown its inconsistency with the law that it built up around it. For those that weren't otherwise as quickly on board with the idea that plessy was wrong the day it was decided, he was take nothing changes. SASSE >> I want to interrupt you. I want you to keep coming forward. What you're describing right here in the new documentary Marshall, every mom and dad ought to show their kids, my kids and I watched this before it was public. Everybody should watch "The marshal." Continue that, please. KAVANAUGH >> I think that by the time it got to brown versus board of education, that the foundations 3:12:25 PM of overturning plessy were strengthened. By building a body of law that was inconsistent with the principle, the erroneous principle set forth in plessy. So he had a strategic vision of how to do this which was brilliant and he effectuated with a team of lawyers over time litigating case after case and building factual records that would show the badge of inferiority from it is a educational facilities and separate facilities more generally. That's how he was able to show that the precedent even with principles of stare decisis in place should be overturned. SASSE >> If you're on the court during that period, that 58-year period, I want the get to precedent, super precedent, precedent on precedent, super duper precedent. 3:13:26 PM But one of the reasons you think this is because of the Harland dissent. So back up. Sixth grade level. What is the purpose of a dissent? Why do we write them? KAVANAUGH >> We write dissents because we in a multi member court disagree with the decision made by the majority. Because we think the issue is sufficiently important, if you're on the supreme court, that perhaps a future court will pay attention to your decision or in a statutory case, sometimes maybe congress will think that your interpretation -- >> Shepard: The hearing will continue on Fox News channel after a brief commercial break. 3:19:10 PM >> Shepard: Trace Gallagher live in Los Angeles. Thank you. The Kavanaugh hearings continue now on capitol hill. This is Fox News channel. >> Ordinarily you get on board the precedent but you might still write separately to say, I think this was a huge mistake and we should go back to a different approach. You see that sometimes. I think there's lots of -- >> I want to ask but the chair will let me have three more minutes. What is the difference between an appellate court judge's job and a supreme court justice's job? >> There are many. >> Specifically with regard to questions where there's been a 3:20:11 PM precedent. >> So at the D.C. Circuit level, court of appeals level, we follow vertical stare decisis. We're not allowed to deviate from a supreme court press department. Let's put it this way. On the D.C. Circuit, we were considering a prior precedent of our own. We can do that at times if the conditions for overrule ago precedent are met. We can't do that with respect to supreme court precedent. We have to file that. Why is that? There's one supreme court in our system and lower courts have to follow that or there would be chaos in the federal system if lower counts weren't bound to follow the precedent of the supreme court. >> Is there a single supreme court justice today who agrees with every opinion of the court? >> I think that's got to be zero. 3:21:11 PM >> Right. >> So how does that get netted out in the next controversial case when you use these terms, precedent, super precedent, precedent on precedent? How does that get netted out? >> Ordinarily it gets netted out by the court following the precedent until and unless the conditions for overturning something are met. Brown versus board the most example of that happened. Erie railroad case. There's examples of it but it's rare. Ordinarily what happens once a decision is decided, that's what stare decisis means. You follow the decision by the court subject to the rules of stare decisis. That's part of stability, predictability and part of impartiality, part of public confidence and the rule of law that it's not just going to move 3:22:13 PM pillar to post and the wall is stable and foundational. Again, it's not brown versus board shows it's not absolute. That's a good thing. But it is critically important to the impartiality and stability and predictability of the law. >> The fact that Harlan should have been the guiding opinion for 58 years isn't true just for the supreme court, it was also true for an appellate court? Could an appellate judge gone with Harland in 1940? >> An appellate judge was bound by the precedent of the supreme court and that would have been sadly plessy versus Ferguson. >> So the core difference here for the supreme court is there's greater latitude to consider the errors of the supreme court? >> Yes. >> 30 seconds left. I have to get my last one out. What is the declaration of Independence? What way -- the constitution is 3:23:18 PM fundamental law for us. >> The declaration of Independence is a document declaring Independence from great Britain but set forths a series of grievances from the monarchy, the system. Many of which are reflected in the constitution in terms of protections that are in the constitution. If you trace to the declaration of Independence, you can see the grievances they have are protections in the constitution, starting with the separation of powers and including the individual protections, whether it is ex-facto laws or freedom of speech. The declaration of Independence is a set of principles that I think guide our beliefs, life, liberty and the pursuit of happiness. All men are created equal, all people are created equal in our society and the principles have guided us, inspired us than the source of our liberty, the 3:24:20 PM source of much of what we've done as a country since the declaration of Independence. But it's not law the same way the constitution is law that is applied in courts. >> Thank you. >> Senator coons. COONS >> Thank you, chairman grassley. Thank you, judge Kavanaugh, to you, to Ashley, to your family and friends. Thank you for being here and for the opportunity to engage with you. Again, you've shown great persistence and engagement. [Protesters SHOUTING in the background]. In the last round, we talked about the bedroom constitutional principle that nobody should be above the law, including president, which is a principle foundational to our democracy. It's about more than any one person, any one president. And I just want to continue asking you about the president's obligation to cooperate with the federal investigation and how your view of the president's power might implicate an 3:25:21 PM investigation. As we know in 1974, senior officials in the Nixon administration and the campaign were on trial for crimes related to watergate. With so many former white house and justice department officials implicated in crimes, then president Nixon felt threatened by the investigation. So special prosecutor Archibald cox issued a subpoena for the tapes, reasonably believing that they contained evidence of criminal activity, the president acted. Instead of supplying with the subpoena for tapes, president Nixon had the special prosecutor fired. He fought the subpoena for the tapes all the way to the supreme court. I want to focus on the question of the president's action in firing the special prosecutor because that's what I think is a key issue here. Judge, when president Nixon fired special prosecutor cox, did he violate the law or the constitution? 3:26:25 PM [Protesters in the background]. >> I know the regulation in place for Leon Jaworski after the firing. I'm not recalling the specifics of the cox regulation in place at the time. >> I'll tell you there were for cause restrictions in place at the time. Given that, do you think firing the special prosecutor violated the law or the constitution? >> If it violated the regulation, it violated the regulation. >> Would it have I'll have -- violated the constitution. What I'm getting at, are there these for-cause restrictions on the president's ability to fire the special counsel. >> The supreme court and the United States versus Richard Nixon analyzed the specific 3:27:25 PM regulation at issue in that case. Actually relied on the specific regulation and finding that the case was under the precise terms of the regulation in place at the time. The court analyzed that and really specific detail. Pointed out that so long -- [protesters in the background]. >> Let me be clear about the point I'm trying to get to. Your views about whether or not when president Nixon fired Archibald Cox, he obstructed justice or the firing itself violated the constitution. It's important for you to know your views on Nixon as well. I want to know what you think about the constitution and if it prohibits restrictions on the president's ability to fire a special prosecutor. >> My views are what the precedent says. In other words, I follow the 3:28:26 PM precedent. The precedent of the supreme court in U.S. V. Nixon case did apply that regulation -- >> Judge, that was unanimous? >> It was, 8-0. >> Are you aware of any justice questioning the decision? >> No. I've called it one of the four greatest moments in supreme court history, U.S. V. Nixon. >> You. Have that's what I want to get to. You in another context as we talked about yesterday in a roundtable in 1999 volunteered unprompted that maybe Nixon was wrongly decided. Do you think us V. Nixon was wrongly decided? >> I said it was one of the four greatest decisions and correct decisions in terms of the specific regulation at issue in the case, the court's holding in a criminal trial subpoena that the subpoena for the information, the tapes was enforceable in that context. 3:29:27 PM And that's what I said before publicly about the Nixon case. >> You would agree that it was correctly decided? Did I hear you right? >> Of course. When I say it's one -- when I say something is the greatest, that means I agree with it and the point was under the specific regulation at issue in that case, a crime trial subpoena for the information and it was a moment of judicial Independence, a moment where the court I think came together as unanimous opinion written by chief justice burger. That's an important moment in the court's history. >> So you'd agree that a court can order a president to produce records or ordered to testify in front of a grand jury? >> I'm not going to answer questions on how to apply U.S. V. Nixon. 3:30:28 PM
SENATE JUDICIARY COMMITTEE HEARING: BRETT KAVANAUGH NOMINATION - WITNESS ISO 1400 - 1530
1330 KAVANAUGH HRG WITNESS STIX FS2 80 UNITED STATES SENATE COMMITTEE ON THE JUDICIARY HEARING: Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States (Day 3) Full Committee DATE: Thursday, September 6, 2018 TIME: 09:30 AM LOCATION: Hart Senate Office Building 216 PRESIDING: Chairman Charles Grassley INTRODUCERS: The Honorable Condoleezza Rice Former Secretary of State Senior Fellow at Hoover Institution Professor at Stanford University Stanford, CA The Honorable Rob Portman United States Senator State of Ohio Ms. Lisa S. Blatt Partner Arnold & Porter Washington, DC PANEL I The Honorable Brett M. Kavanaugh PANEL II Mr. Paul T. Moxley Chair American Bar Association Standing Committee on the Federal Judiciary Salt Lake City, UT Mr. John R. Tarpley Principal Evaluator American Bar Association Standing Committee on the Federal Judiciary Nashville, TN PANEL III MAJORITY Mr. Luke McCloud Former Law Clerk Associate Williams & Connolly LLP Washington, DC Ms. Louisa Garry Teacher Friends Academy Locust Valley, NY The Honorable Theodore B. Olson Partner Gibson Dunn & Crutcher Former Solicitor General United States Department of Justice Washington, DC Ms. Colleen E. Roh Sinzdak Former Student Senior Associate Hogan Lovells LLP Washington DC Professor Akhil Amar Sterling Professor of Law and Political Science Yale Law School New Haven, CT MINORITY: The Honorable Cedric Richmond U.S. Representative, Louisiana, 2nd District Chairman, Congressional Black Caucus Ms. Rochelle Garza Managing Attorney Garza & Garza Law Brownsville, TX Ms. Elizabeth Weintraub Advocacy Specialist Association of University Centers on Disabilities Silver Spring, MD Ms. Alicia Baker Indianapolis, IN Professor Melissa Murray Professor of Law New York University School of Law New York, NY PANEL IV MAJORITY: Mr. A.J. Kramer Federal Public Defender Office of the Federal Public Defender for the District of Columbia Washington, DC Ms. Rebecca Taibleson Former Law Clerk Foxpoint, WI Ms. Maureen E. Mahoney Former Deputy Solicitor General of the United States Washington, DC Mr. Kenneth Christmas Executive Vice President, Business & Legal Affairs Marvista Entertainment Los Angeles, CA MINORITY: Ms. Aalayah Eastmond Parkland, FL Mr. Jackson Corbin Hanover, PA Mr. Hunter Lachance Kennebunk, ME Ms. Melissa Smith Social Studies Teacher U.S. Grant Public High School Oklahoma City, OK PANEL V MAJORITY: Ms. Monica Mastal Real Estate Agent Washington, DC The Honorable Paul Clement Partner Kirkland & Ellis LLP Former Solicitor General United States Department of Justice Washington, DC Professor Adam White Executive Director The C. Boyden Gray Center for the Study of the Administrative State Antonin Scalia Law School George Mason University Hamilton, VA Professor Jennifer Mascott Former Law Clerk Assistant Professor of Law Antonin Scalia Law School George Mason University Arlington, VA MINORITY: Mr. John Dean Former Counsel to the President President Richard M. Nixon Professor Rebecca Ingber Associate Professor of Law Boston University School of Law Boston, MA Professor Lisa Heinzerling Justice William J. Brennan Jr. Professor of Law Georgetown University Law Center Washington, DC Professor Peter Shane Professor Law Moritz College of Law Ohio State University Columbus, OH LUNCH BREAK [1:58:29 PM] Supreme court justice. Sheldon Whitehouse is questioning Kavanaugh. >> -- Protection they feel you are owed. It's up to you do do that. >> I spoke to reporters at the direction and authorization of judge stark. >> You are citing the exact same words you answered me with beforehand. >> It's relevant to the answer of the question, if I could continue? >> What I would really like to get is an answer to the actual question I asked rather than a disquisition in the general topic area I asked. This is a very simple thing. You either will or will not or if you wish, this is -- you're welcome to say, look, I would like to take that under advisement and get back to you after some reflection and consultation, but our situation right now is that reporters may very well information about what you told them during the Starr Clinton investigation that they are unwilling to divulge now because you were a confidential source. Can you release them from that by simply saying here publicly, anybody I talked to, say what I said, it's not a problem. I don't need confidentiality anymore. >> Senator, if I could just get 30 seconds on this. If that's okay. >> 30 responsive seconds, I'm all for that. Go for it. >> Okay, I spoke to the reporters at the direction and authorization of judge Starr and therefore judge Starr would be the one who would be part of that process. I was not acting on my own. WHITE HOUSE >> No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe confidentiality. Starr's name has not come up. KAVANAUGH >> I was in turn acting as part of that office, and therefore I guess -- >> But it's yours to divulge. >> It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. [2:00:31 PM] KAVANAUGH I talked, of course on the record. WHITEHOUSE >> The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law? On I the general topic area I asked. This is a very simple thing. You either will or will not or if you wish, this is -- you're welcome to say, look, I would like to take that under advisement and get back to you after some reflection and consultation, but our situation right now is that reporters may very well information about what you told them during the Starr Clinton investigation that they are unwilling to divulge now because you were a confidential source. Can you release them from that by simply saying here publicly, anybody I talked to, say what I said, it's not a problem. I don't need confidentiality anymore. KAVANAUGH >> Senator, if I could just get 30 seconds on this. If that's okay. WHITE HOUSE >> 30 responsive seconds, I'm all for that. Go for it. KAVANAUGH >> Okay, I spoke to the reporters at the direction and authorization of judge Starr and therefore judge Starr would be the one who would be part of that process. I was not acting on my own. 2:00:02 PM WHITEHOUSE >> No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe confidentiality. Starr's name has not come up. KAVANAUGH >> I was in turn acting as part of that office, and therefore I guess -- >> But it's yours to divulge. >> It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. I talked, of course on the record. >> The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law? >> There's been justice department -- 2:01:02 PM >> Statutory law. Is there a statute that limited the protected the president against due process of law. >> There's been justice department law, but -- >> Justice department is not a law-making body, is it? >> Oh, I think it does -- I guess the term law encompasses regulations. >> Directive to the department's own employees, correct? That's what you're talking about. >> Well, that's encompassed, as I think about it, within the concept of law. >> Well, if you're going to go to the general concept of law, perhaps, but there is no law law that congress has ever passed that protects a president from either indictment or due process of law, correct? >> Congress has never passed something. The justice department -- >> Has an opinion about it, I understand that. >> Which is binding. >> On the justice department. So if, as a matter of law, a 2:02:07 PM sitting president cannot be indicted, that must be constitutional law, since there is no statutory law, as a proposition of logic, is that not correct? >> That is not correct, as I see it, because if the justice department has law that binds the justice department, that's another source of law as well. >> Okay. So let's go back to Georgetown law journal, 1998. And a conference you attended. And you spoke at it. And the panel that you were on was asked the question, who on the panel believes as a matter of law that a sitting president cannot be indicted during the term of his office. That's you and your hand shot 2:03:08 PM up. And I think you probably have seen the film clip of that because it's been posted already. Did you mean as a matter of law that olc guidance when you said that? >> I know that right before the passage you're reading, I said there's a lurking constitutional question. >> Bingo. >> The fact that I said that judges that I did not have a position on the constitution -- >> Although you shot your hand up when the question as a matter of law, a sitting president cannot be indicted came up, and it seems to me there are really only two kinds of law unless you're really stretching the envelope here. One is laws that congress passes and the other is laws that are founded in the constitution. And internal policy directive within the department of justice, I think it's a real stretch to call that law. >> Well, I appreciate that, senator, but it has been the 2:04:08 PM long-standing justice department position -- >> Policy, yes. >> And right before -- >> Is that what you meant when you put your hand up, do you know? >> That was 20 years ago, I don't know. But I know right -- >> Here's why it's important. You have been telling us I have never taken a position to say this was a constitutional principle. I have never taken a position on the constitution on that question. I did not take a position on constitutionality, period. I have never taken a position on constitutionality of indictment. Those are all things you have said during the course of this hearing. It looks to me like that's a bit of a conversion. >> Right before that, though, senator, to be fair to me, I did say there's a lurking constitutional question which implies -- >> Then you were asked to answer that question by putting your hand up, and you put your hand up saying aye, so it seems to me you answered your question by putting your hand up the way you did. >> The question wasn't the 2:05:09 PM constitution. If question was law. >> That's what I'm saying you're saying. You're saying what you meant was the olc policy position when you answered a question about law. >> What I said is I don't know what I was thinking in a panel 20 years ago, but I do know having looked at it that the question was about law, that the justice department position has been consistent for 45 years. >> As a matter of constitutional law. Right? The justice department position reflects a view of constitutional law. >> But it's an interpretation binding on everyone in the justice department, as I understand it. >> Because they're employees of the department of justice. In the same way that you can't steal the computer or you can't, you know, bring a pet into your office, whatever rules there might be. >> Well, I think internal regulations are still law. >> Okay. As long as it's your position that's what you meant by matter of law. >> Just to make it clear, I said I don't know what I meant. When I look at it now, that's what I think. >> So let's go on to recusal. 2:06:12 PM And let me -- there's a case that is somewhat on point on all of this. It's the kaperin case out of West Virginia. As you'll recall, it was a civil case, right? >> Yes. >> And it came to the supreme court because there was an objection that a judge should not sit basically the problem should not sit in his own cause, so to speak. And the problem was that one of the litigants had received three -- the judge had received $3 million in political support from one of the litigants. Is that the fact pattern, correct? >> I believe that's correct, senator. >> And the standard that the court came up with was whether that judge had -- whether that donor, that party, had a significant and disproportionate influence -- ooh, we didn't spell influence right, in placing the judge on the case. Correct? >> I believe so. 2:07:13 PM >> And so justice Kennedy -- >> The justice Kennedy opinion. >> Decided the constitution requires recusal. >> Mm-hmm. >> If the constitution requires recusal of a judge who was the beneficiary of a $3 million piece of political support to help him get into office, wasn't it follow per force that the person who actually appointed the judge would be in a similar or stronger position of significant and disproportionate influence? >> Senator, the question in the Caperton case, as I said, was because of the amount of money, the financial interest, which is a whole separate branch. >> Correct, which would have a dissignificant and disproportionate influence on the judge becoming a judge, right? That's what the connection was. The spending of money by the party helped make the judge the judge. 2:08:13 PM In this case, if a criminal matter involving president trump came before you, he wouldn't have just spent $3 million to make you a judge. He would have flat out made you the judge, 100% finito, right? >> Senator, the question of recusal is something that is governed by precedent, governed by rules. One of the underappreciated aspects of recusal is whenever I have had a significant question of recusal as a judge on the D.C. Circuit, I have consulted with colleagues and so too they have consulted with me when they had their own questions. That's part of the process. >> Isn't actually the 100% responsibility for direct appointment more significant in terms of influence than simply making a big political contribution to a judge? That's like 100% responsibility. Appointed, period, done. >> Well, just on the -- I don't mean to quibble, but on the premise of your question, the senate obviously, it's a shared 2:09:13 PM responsibility, the president and senate participate in the supreme court confirmation process. Appointment process. >> You were very clear yesterday in our discussion it was the president of the United States who appointed you. And this is about that. This is about how you get to the seat, and you got appointed by the president. Would that not pertain as a significant influence? I mean, what possible greater influence could there be on who is in the seat that you're nominated to than the nomination of the president to that seat? >> So two points if I could, senator. First, I have said already. I don't believe it appropriate in this context to make decisions and recusal is a decision on a case, so I don't think it's appropriate. >> If it's not appropriate, let me move on with something else because let me ask you about the 2:10:14 PM question of presidential shall we say conflicts with prosecutors. When you were in the Starr prosecution effort, you were exposed to this contest with the Clinton white house. And you described the Clinton white house as running a, and I'm quoting you here, prejudicially approved smear campaign was one phrase you used. A disgraceful effort to undermine the rule of law was another phrase you used. An episode that will forever stand as a dark chapter in American history. >> That was about something different. >> And you prejudicially approved smear campaign against Starr was what the topic was. You then said in a later memo that the president has tried to disgrace Starr and his office 2:11:14 PM with a sustained propaganda campaign that would make Nixon blush, and he should be forced to account for that. Have your views of presidential interference or smearing of independent or special counsel changed since you made those statements? >> Those comments were in a memo written, as I recall -- >> Two memos. But close enough, yeah. >> Well, the one that I'm remembering, written late at night after an emotional meeting in the office dashed off and some of the language in that, as I think I told you, or told some of the senators in individual meetings, was heated. And I understand that. But that was my memo at the time. I think I have been clear, I don't want to talk about current events because I don't think -- I'm a sitting judge as well as a nominee. I don't think I should talk 2:12:15 PM about current events. >> How about the guy, the guy who was outraged at being on the receiving end of a smear campaign. Does that guy still exist or is he long gone? >> Well, that's -- that's what I wrote at the time, how I felt one night after a meeting we had in August of 1998, I believe, at least the memo I'm remembering. >> Last topic because my time is getting short here. The hypothetical problem that I have has to do with an appellate court which makes a finding of fact. Asserts a proposition of fact to be true. And upon that proposition, hangs the decision that it reaches. And the question is, what happens when that proposition of fact actually in reality, you have referenced the real world so often, actually in reality 2:13:16 PM turns out not to be true? What is the obligation of an appellate court if it has hung a decision on a proposition of fact and then the proposition of fact turns out not to be true? Does it have any obligation to go back and try to clean up that discrepancy, to clean up that mess? >> I think, senator, it's probably hard to answer that question in the abstract because -- >> But if I give you specifics, then you'll say you can't answer that because that would be talking about a case. So I'm kind of in a quandary here with you. >> I was going to biv you a couple thoughts, which I think that would be wrapped up in the question of precedent and stare decisis, and one of the things you could look at, one of the factors you could look at, how wrong was the decision, and if it's based on an erroneous factual premise, that is clearly one of the factors you would -- >> You would look at -- >> Mistake of history. Sometimes there have been cases where there have been mistakes of history in decisions, 2:14:17 PM mistakes of fact. >> Quickly, the two examples that come ready to mind, one is Shelby county. In which the court said in looking at whether there was still any kind of institutional racism in the preclearance states they needed to worry about, nope, the quote, country has changed and current conditions, to use their phrase, are different. First, where do you suppose the five justices who made that decision got expertise in vestigial state racism to make that determination at all? >> I can't comment on the decision other than to say it's a precedent. I understand the point you're making about -- >> Because you do know that since then, both North Carolina was found to have targeted minority votes with, quote, surgical precision, which is pretty rough phrase. And Texas got after it so frequently that a federal court finally said, look, we think there's a penchant for 2:15:17 PM discrimination here. So if you have got the five judges saying that it's over in these states and then it turns out it really isn't over, that there's actually still surgical precision targeted of minority voters and there's a penchant for discrimination in the Texas state government, that ought to be something that might cause some reconsideration of the Shelby holding, oughtant it? >> So three things on that. I think, senator, one, I think the case did not strike down preclearances opposed to saying the formula needed -- >> De facto it did. Preclearance ended in all those states with that decision. >> I understand that. >> So I have one minute left. Let me jump to the other example. Because I think it's an important one and my time is running out. That is citizens united. Citizens united took on the proposition that the unlimited spending that it authorized by people capable of unlimited spending would be both 2:16:20 PM transparent and independent. Correct? >> The court upheld the disclosure requirements in that case, if that's the question. >> It said more than that. It said it's the transparency and the Independence of the spending that it authorized that were the guardians against the corruption. >> Right. So it wasn't contributions to parties or candidates, correct. >> So the first amendment ends where efforts to corrupt begin, correct? You don't have a first amendment right to corrupt your government. KAVANAUGH >> The supreme court has relied on corruption in the appearance of corruption as part of the test, and it's -- you know this very well. >> In order to fend off the argument that big money corrupts and absolute money corrupts absolutely, they said no because there's going to be independents and transparency. In fact, if I remember correctly, they said -- I don't have it in front of me, oh, here 2:17:21 PM we go. The separation between candidates and independent expenditures negates the possibility of corruption. So if they're wrong factually about this spending being transparent, and we know that they are from what we have seen since then, and if they're wrong factually about the Independence of this spending and we know they are from actual events that have happened since then, then that strikes a pretty hard blow against the logic of citizens united, does it not? >> So citizens united, as you know, is a precedent of the supreme court, so entitled the respect as a matter of stare decisis. As you know and I would just reiterate, if someone wants to challenge that decision, they -- one of the things that anyone can raise about any case is that it's based on a mistaken premise or mistaken factual premises, and that's the kind of things courts are open to hearing. >> My time has expired. I thank the chairman for the 2:18:23 PM indulgence of the extra minute. >> A couple things. First, I would note -- BREAK IN CNN COVERAGE. NO OTHER CABLE NEWS AIRING RIGHT NOW. 2:19:25 PM ? Experience amazing at your Lexus dealer. >> Dana: Back to the hearing. The >> It was a different aspect of that investigation. >> Senator Cruz. CRUZ >> Thank you, Mr. Chairman, I want to note at outset, senator from Rhode Island took his questioning as an opportunity to inpune residents of north Carolina and Texas as having a pension for bigotry and I appreciate the compassion from the senator from Rhode Island. I will point out, let you rise to the defense of your own state and point out in the state of Texas, that we had just a few years back three statewide elected African American officials, all Republican, I might note, I believe at the time was the most of any state 2:20:26 PM in the union and I think it is the case Rhode Island has none. [SHOUTING in the background] >> For the record, I apologize to my colleague if he takes umbridge about reference to Texas, this was in Texas referring to the decision-makers in that case. >> Senator, you have 30 additional seconds. CRUZ >> Senator: Judge Kavanaugh, yesterday you had some discussion with senator Lee about what it means to be a textualist and I want to go back and revisit that conversation and ask, for someone at home, who is watching this, why should it matter to them if a judge is a textualist? What difference does it make to somebody not involved with the 2:21:27 PM supreme court? KAVANAUGH >> Judge Kavanaugh: Senator, goes to constitution and the system the framers designed with a legislative branch and executive branch and judicial branch that were all separate, as was said in federalist 78, the judiciary does not exercise will, but it exercises judgment. The policy decisions are made by the legislative branch, with the president, of course, in terms of signing legislation, so the house issue the senate and the president. The president enforces federal law, comes to the judiciary. When we interpret a statute, if we, as judges must adhere to the text of the statute, why is that? Two reasons, I think are paramount, the first is the statute as written is what was passed as a formal matter by the congress, by both houses of the congress, signed by the president into law. 2:22:28 PM A formal matter, that is the law. So if we're going to exercise judgment, not will, we need to adhere to the law as passed and the law as passed reflected in written words that were, went through both houses and signed by the president. Secondly, in supporting that, as practical matter, legislation is a compromise. And within the senate, within the house, with the president, as well, lots of compromises are inherent in any legislative product, that is what my experience shows, that is what I know your experience shows, as well, senator. So when a case comes to court, statute comes to court, you know, we upset the compromise that you so carefully reached and where people might have given up this for that in terms of the legislative final language and we then insert ourselves after the fact into the process and upset the compromise, if we don't stick to 2:23:29 PM the actual words of the text of the statute as passed by congress. So as both a formal matter of what the law is and as a practical matter of not inserting ourselves into the legislative process and upsetting the legislative process, it is critical that judges stick to the law, as written, text of statute as passed by congress and signed by the president. >> Senator: What in your view is the proper role, if any, for legislative history in statutory adjudication? Different justices have different views on this. >> Judge Kavanaugh: I think all judges are much more skeptical of legislative history than they once were, that's the influence, as you know, senator, largely of justice Scalia, very mainstream now to be skeptical of legislative history and again, two reasons support that skepticism, if not outright refusal to use it. The first is that the 2:24:30 PM legislative history, the committee reports or the floor statements made by individual members on floor of the house or senate are not part of the law as passed and that is important, it would be very easy, I said in my articles, for congress, if paragraph or page or more in legislative history in committee report that was really important, put it into the law, put it into the introduction of the law, have it be part of the law that is passed. When it is a committee report, might be seen by one committee and one house, might not have been seen by the other house, the president, of course, is part of the process, might never have seen it. To rely on that is to upset the formal process by which law is enacted in the United States. So, too, again, the legislative history, the committee report, is not part of the compromise that's reached between the house and the senate and the president, at least not ordinarily, allowing one committee, for example, or one member to go down to the floor 2:25:30 PM of the house or senate and to say something that will shape subsequent judicial interpretation and upset the careful compromise that is reflected in the tax that is passed by the senate, passed by the house and signed by the president. Again, both formal and practical reasons why skepticism of legislative histories warranted and why justice Scalia able to persuade justices across the spectrum, judges across the spectrum, legislative histories useful for understanding why something came to be, but not as tool for upsetting or changing your interpretation of the words of the statute. >> Senator: Also, yesterday when you were talking with senator Lee, I believe you described yourself as an originalist. Can you explain what that means to you, what you mean by that? And why, again, people at home should care, why that should 2:26:30 PM matter if a judge or justice is an originalist? >> Judge Kavanaugh: By originalist, it is important to be clear, there are different things people hear when they hear the term originalist. There was an old school of origin intent, subjective intention of the drafters or ratifiers and that is not really the proper approach in my view, for similar reasons to the discussion of legislative history with statutes. By originalist, what I've meant is original public meaning or the constitutional textualism is the term I use that refers to the same concept, which is pay attention to the words of the constitution. The constitution is article 6 of the constitution makes clear, is law. It is not aspirational principles, it is law, the supreme law of the land. In that sense, it's superior to statutes, but law-like just like statutes, superior law. The constitution itself 2:27:31 PM including the amendments, original constitution was itself a compromise, as law and it is a compromise reached Philadelphia in the summer of 1787 and of course Madison's notes and history that shows all the compromises were reached, probably most famous compromise is the compromise that allows for representation according to population in the house, representation according to state and the senate, the Connecticut compromise as it is often referred to. It is important for judges again, not to upset the formal law that is written in the constitution or to upset the compromises reached either in the original constitution or in the amendments, now one key thing to add to that is precedent is part of the constitutional interpretation, as well, as federalist 78 makes clear and judicial power clause of article 3 makes clear, so a system of precedent is built into how judges interpret the constitution and constitutional 2:28:31 PM cases on an ongoing basis, that is part of the proper mode of constitutional interpretation and important system of precedent. >> Senator: Thank you. Let's shift back to the topic you and I discussed yesterday, religious liberty, a topic of consideration interest and importance to a great many Americans. In private practice, you wrote an amicus brief in the Santa Fe case for congressmen Steve Largin and J.C. Watts. Can you describe what that case was about and your representation there? >> Judge Kavanaugh: I will. Attorney general for the state of Texas and did outstanding job. I remember participating in the moot court as the senator recalled. Didn't turn out too well, judge. You did an excellent job, senator, I remember being there. The case involved prayer before 2:29:33 PM a football game. The supreme court had number of cases on religious expression in schools. School sponsored prayer at school events is often impermissible, Lee versus Wiseman. The same time, when students want to express themselves in some way, t-shirt, clothing or saying their own prayer, say before a football game or other events, the students want to say a prayer for themselves or there is an open forum, students are allowed to say whatever they want and one student chooses to talk about religion or say a prayer, that's on the generally on the free speech side of the house, freedom of religion side of the house of the supreme court precedent, which would protect religious liberty of the 2:30:36 PM individual in that circumstance. The Santa fe case came, I think senator Cornyn would say, well, senator Cornyn would say on free speech freedom of religion side of the house. The supreme court thought the school was too involved, I would say, in the prayer opportunity in that case and thus attributed prayer in that case to the school and the supreme court therefore said that the prayer in that case was impermissible. It was very fact-specific, based on how some of the actual prayers had gone down in the school district there. So it was really in the gray area on the facts between the two principles, freedom of speech and freedom of religion for individuals, on the one hand, no school-sponsored prayer, on the other and those two principles are part of the supreme court precedent that I think the courts have applied for a long time now. >> Senator: So what led you to want to take on that 2:31:37 PM representation in the amicus brief? >> Judge Kavanaugh: I think at that time I was asked to work on several cases involving religious liberty and religious speech. I also did a case in amicus in the good news club case. That was a case where a school district allowed use of the gymnasium auditorium area after school for whatever group from the community wanted to use the facility and they would allow everyone to come in, you know, boy scouts, the -- any community group to come in, but didn't allow religious groups to come in. That seemed to be discrimination against religion, discrimination against religious people, religious speech. I was asked to do a amicus brief that made the point religious people, religious speakers and 2:32:38 PM speech is entitled to its place on equal basis in the public square, including, in this case, the school auditorium or gymnasium. The supreme court agreed with that principle in that case, stating discrimination against religion in public facilities and in the nature of what was going on in that case was impermissible and violation of freedom of speech, freedom of religion and therefore unconstitutional. Those cases are important, it is important that the -- to recognize constitution, first amendment of the constitution, as well as many statutes, of course, protect religious liberty in the United States, religious freedom in the united States and I said in some of my opinions, we're all equally American, no matter what religion we are or no religion at all, religious speakers and a right to their place in the public square. >> Senator: Another case you 2:33:38 PM were involved in as a judge, you wrote dissent from denial of rehearing on bonds in the priest for life case. Can you tell the committee about that case and your opinion there? >> Judge Kavanaugh: That was a group that was being forced to provide certain kind of health coverage over their religious objection to their employees and under the religious freedom restoration act, the question was first was this substantial burden on the religious exercise and it seemed to me clearly it was. It was technical matter of filling out a form, in that case, they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were as religious matter objected to. Second question was, did the government have a compelling interest, nonetheless in providing the coverage to the 2:34:40 PM employees and applying the governing supreme court precedent from hobby lobby, I said the answer was yes, the government had compelling interest following justice Kennedy opinion and hobby lobby said the government did have interest in ensuring access and came down to least restrictive means prong of the restoration act and that prong was the act to my mind is an opportunity to see, is there a win/win in some respects? In other words, government interests in ensuring healthcare coverage, can that be provided without doing on the backs of the religious objector? That is what the court is looking for. The professor had written about. That case, it seemed to me the governor had avenues to ensure that the coverage was provided without doing so on the backs of the religious objectors and I so ruled following the supreme court precedent in hobby lobby and subsequent case Wheaton 2:35:41 PM college, they had an order I followed and seemed to me to dictate the result that I identified in the priest for life decent. Another case, to reiterate, overwhelmingly passed by congress in the early 1990 and signed by president Clinton and was important addition to the protection of religious freedom in the United States to supplement the constitutional protection that exists in the free exercise clause. >> Senator: Well, and I would note much like yesterday, when we discussed your pro Bono representation of the synagogue that priest for life using some on the democratic aisle paradigm suggested little guy and big guy, little guy against almost all powerful federal government and in that opinion, presumably because you felt the law dictated it, you sided with the priest for life in that 2:36:42 PM decision. >> Judge Kavanaugh: That's correct, senator, I think a lot of religious freedom cases, the supreme courts had, that has been the case. There was a prisoner, opinion written by justice Alito, I believe, unanimous, prisoners being Muslim prisoner being forced to shave his beard in violation of religious beliefs. Justice Alito wrote opinion for the supreme court saying that was substantial burden on his religion and was not necessary and that is just another example of how religious liberty protects all of us, no matter our religious briefs, that is principle of both of the constitution and religious freedom restoration act. >> Senator: Another case you were involved in that stood out to me personally, just being Cuban American, is that as I understand it, in November 1999, when Elian Gonzalez came to this 2:38:46 PM a question under the due process clause. And interestingly, it seemed that the ins had not -- was interpreting the refugee act in way that seemed stretch of the statutory language and was not some kind of formal regulation, so the question of Chevron deference to informal agency position was question in the case and I wrote the circ position and petition saying that the agency was stretching the language of the statute beyond recognition and doing so in way that was entitled to no deference because it was not in any kind of formal regulation, which years later turns out to be a position supreme court has agreed with in terms of administrative law, but in that case, I got involved because I was asked to get involved on moment's notice in case of purposes for people who needed help -- >> Senator: Let me ask one final 2:39:47 PM question, you've been nominated to the highest court in the land. As you know, there is another highest court in the land, that is the basketball court, atop the U.S. Supreme court courtroom and I believe no sitting justice has played regularly there since justice Thomas many years ago when he was a much younger justice. If you are confirmed, do you intend to break that tradition and return to having a justice play on the highest court in the land? >> Judge Kavanaugh: Well, I do, if fortunate enough to be confirmed justice Thomas did at some point get injured, I hope that precedent is not one I would follow, yes, indeed, senator. Thank you. >> Senator: Excellent, glad to hear it. GRASSLEY >> Before I call on senator -- BREAK IN COVERAGE / NO CABLE NEWS AIRING HEARING 14:42 KLOBUCHAR QUESTIONING KAVANAUGH GAP IN CC 2:47:36 PM KLOBUCHAR >> Senator: I'm going back to 2009, which isn't that long ago and the university of Minnesota law review and that is where you said we should not burden a sitting president with civil suits, criminal investigations, or criminal prosecution, and when you and I talked yesterday, you said that congress could still pursue an impeachment proceeding, right? KAVANAUGH >> Judge Kavanaugh: Yes, impeachment mechanism. KLOBUCHAR >> Senator: Your view back then, you wouldn't comment on it. Your view when you wrote this was that -- well, your view now is that congress should be able to pursue impeachment? KAVANAUGH >> Judge Kavanaugh: Well, the constitution -- KLOBUCHAR >> Jessica: Yes. KAVANAUGH >> Judge Kavanaugh: Specifies impeachment as tool in the constitution itself. KLOBUCHAR >> Senator: Go back to when you wrote this, not hypothetical, when you wrote this in 2009, you were thinking about it, did you think then and this is what you meant, that a president shouldn't have to be 2:48:37 PM investigated? You said it, right? >> Judge Kavanaugh: Well, the context there, I believe, senator, was talking about civil suits or criminal investigations or criminal lawsuits and it was not my position on the constitutionality, it was something for congress to consider and the idea was reflecting on my experience after September 11th and what we could do to make the presidency the most effective for the American people. >> Senator: I'm trying to understand in practicality when you look at last impeachment proceedings how you would do it if you didn't have an investigation, other ones used independent counsel, special counsel and if you don't have that, don't you effectively eviscerate the ich -- impeachment part of the constitution? >> Judge Kavanaugh: Not at all. >> Senator: Why would we want to foreclose our ability to use special counsel or independent 2:49:37 PM counsel? >> Judge Kavanaugh: So that is your decision ultimately in congress to decide, that is one view you just articulated and of course congress is not enacted any special deferral for civil suit, congress is stuck with Jones V. Clinton result from that case and of course stuck with the existing system of special counsels. >> Senator: To get back to where you were in 2009 when you wrote this as opposed to using a hypothetical. So we said several times here no one is above the law, I said that in my opening statement, but when you said this, you men no one is temporarily above the law, if a sitting president, she was in office and there was some crime committed, murder, white-collar crime, anything, you are say nothing this article, she shoot be subject to criminal prosecution? >> Judge Kavanaugh: That would 2:50:38 PM be issue for congress to consider if it wanted to pursue temporary deferral. There are statutes for members of the military, service members serving overseas, I think president Clinton in Clinton V Jones case cited that as something statutory deferral, not immunity, important to establish immunity from deferral. But timing of when a particular litigation will occur. I wouldn't call that above the call, I would call that a timing question. >> Senator: Okay, that would be a long time if a president was serving for four years or eight years, given and again, I'm reading the words, we should not burden sitting president with civil suits, criminal investigation or criminal prosecution, so it feels to me that was your view when you wrote that. >> Judge Kavanaugh: Well, it was an idea for congress to consider along with many other ideas about judicial confirmations and war powers and all reflecting, 2:51:39 PM that was reflecting on idea congress could consider, whole point was to make -- help the country do better based on my observations from five and a half years working in a white house where during war, during wartime. The >> Senator: Okay. Another topic, follow-up from senator Harris' questions from last night. She asked you questions about voting rights and ranking member of the rules committee and as she noted, many states have restricted access to voting since the supreme court's decision in Shelby county, struck down key provision of voting rights act. Brennan center, 23 states have more restricted voting laws than in 2010. Many laws challenged in court, some overturned, so here is one more question on this. Should courts consider these widespread efforts to restrict voting, what has been going on 2:52:40 PM since 2010, when ruling on challenges to statutes that effect the right to vote? >> Judge Kavanaugh: Well, I think in any particular case, senator, you'd want to see what the record established in the case was and the record could include what is going on in that particular state and I can imagine a factual record where that would include also potentially what is going on in other states, as well. >> Senator: Thank you. Thanks. That is by Brennan center and other nonpartisan organizations have found no evidence of widespread voter fraud and study by "Washington post" found only 31 credible instances of fraud from 2000 to 2014 out of more than 1 billion ballots cast. Do you believe there is evidence of voter fraud, do you believe I know you told senator Harris you watch, read some election law blogs, sitting here last night, and so have you read one of the articles on widespread voter fraud on one of the blogs you 2:53:42 PM mentioned? I'm just concerned because that is out there, I would think that is something that could be looked at? >> Judge Kavanaugh: Look at professor hassan's election law blog and that is one of the ones that I've looked at, other blogs, as well, and there is discussion of this issue and I would want as a sitting judge, want to see a record before me of what is going on in a particular case. I hesitate to opine on something I read in a law review article, I think you have a better sense of what is going on there, I would want a record to determine what the evidence in that particular case was. >> Senator: Okay. I want to turn now to affirmative action and senator booker raised these questions late last night. In a speech at notre dame you discussed long-standing exception, end quote, to "Basic equal protection right not to be 2:54:42 PM treated differently by government on account of your race," and summarize court debate on this issue and remarked on what basis is the court making those decisions, is there something in the text of the constitution that tells us one is good enough and the other is not good enough, not really. Again, this is common law judging to define the contours of the exception to the institutional right. What did you mean by that? >> Judge Kavanaugh: I meant in many areas of constitutional law, we have free speech rights, we have exceptions, analyzed usually talking about under strict jut nee, talked about the second amendment, how the second amendment right and so too in 14th amendment, equal protection context, what kinds of programs are permissible, consistent with equal protection right and the precedent is critical on this, precedent built up, means 2:55:44 PM FOX NEWS BREAKS FOR COMMERCIAL/ NO OTHER CABLE NEWS COVERING 2:57:03 PM >> Now back to the hearing. Amy klobuchar questioning. KAVANAUGH >> My note in that case, as I understand it was rooted in supreme court precedent, the krosen case. And krosen is where the court invalidated a Richmond contracting program, as I recall, and so that precedent made clear what conditions need to be satisfied before a racial -- a contracting program of that kind could be sustained consistent with the constitution and the analysis that we went through set -- suggested that at least as it was being applied, as I recall, the federal program ran afoul of the supreme court press department supplied in the krosen case so I was giving advice on how it would fit in 2:58:05 PM the krosen case. That's my best understanding. I haven't gone back to restudy it. >> Maybe we can get that in writing at some point if you want to look back at it. We've witnessed unprecedented attacks on journalists the past several months. This should be concerning because journalism is part of our democracy. My dad was a journalist his entire life. He wrote a blog. He's 90. You probably didn't read that one. In "New York Times," the court issues a landmark ruling for protections for the press when newspapers report on public officials they can say what they want unless it's untrue with actual malice. 2:59:05 PM You believe public officials could sue the media under any standard less demanding than actual malice and can you explain what that standard means to you. >> The supreme court has elaborated on and applied that standard repeatedly over time. I have, too, as a lower court judge. So that precedent is now been applied over and over again. I'm not aware of much effort to deviate from that standard. Interestingly in "New York Times" versus Sullivan, in the course of that opinion, the court said the sedition act of 1790 had been overturned -- >> We're going to continue following Brett Kavanaugh's confirmation hearing. It's time for "Shepard Smith reporting." I'm Dana. Here's shep. 3:00:10 PM >> Shepard: I Shepard Smith in New York. We're going right back to the hearings in just a moment. 3:02:05 PM The hearings for judge Kavanaugh continue on capitol hill. More news as it breaks. Now back to Washington. >> The relationships of reporters and their sources. Again, the criminal civil divide there is something that I think has been a part of the case law in the past where the criminal context has been deemed in some cases sufficiently compelling. But that is -- set forth part of the reporter's privilege and the relationship with confidential services in the role of the reporter in bringing light to democracy. >> Thank you. GRASSLEY >> I'd like to note we've had good luck in confirming this week eight federal judges to lifetime appointments. [Protesters in background]. 3:03:13 PM Eight federal judges, lifetime appointments this week. Last week we did seven judges, 12 were confirmed without any objection from Democrats, and so we've had a pretty good record of being able to show that you don't have anything to fear from lifetime appointments for federal judges like we've heard a big issue today. Go ahead. SASSE >> Thank you, Mr. Chairman. Judge, welcome back. Congratulations on your last day of interviewing in your life. I'd like to talk about precedent. You've been a law professor. How long? >> I started in 2007, the first year. >> Okay. Let's pretend you're a sixth grade civics teacher for our 20 minutes together instead of law professor. Precedence is important but I don't think the -- it's not 3:04:15 PM something the American people know and it's something that maybe we can benefit from. Has the supreme court ever made a mistake? >> The supreme court has made some major mistakes at times. Dread Scott, good example. >> How do you know when you have a mistake? >> Sometimes you know right away. I think in those cases with the dissents written in those cases, those dissenters knew right away. I think they were mistakes right away. Plessy versus Ferguson was right. >> What was the ruling count, do you remember? The vote? >> There was one dissenter, justice Harlan. He was the only dissenter in that case. >> Okay. It's so close to McCain's event that I know we shouldn't be joking right now, but I want to talk about lunch. Republican senators have lunch together three times a week. When we do, if somebody's phone 3:05:16 PM goes off, it was always John McCain's. He wouldn't know it came on full volume 10. It was like a ghost of lunches past. You wrote a really important article in catholic law review, the ten principles of good umpiring. It wasn't about you as basketball coach. It was about the job of a judge. I'm going to speed through them. I'm oversimplifying, but your top ten list was, if you're an umpire, you can't be a part son. You have no rooting interests, no fan favorites. Number 2, the rules have to exist before the game. Number 3, apply the rules consistently. 4, can't remakes the rules on your preferences. [Protesters in background]. >> It may be case that the NFL decides that a targeting penalty doesn't work. Number 5, you have to have 3:06:17 PM backbone or courage. Number 6, tune out the crowd. Number 7, an open mind. You think you know what case is coming before you and people may present arguments different than thought. Number 8, you need the demeanor and temperament. Number 9, you have to work with your colleagues and number 10, you have to be goods at explaining. Rule number 2, the rules have to exist before the game. You go from a paragraph by paragraph structure. You pause and have a long 2 B and you explain about precedent. Can you give us a 60 or 90-second view about how precedent relates to having rules of the game before the game? >> Yes. Precedent is important for stability and predictability. So to know what the rules are ahead of time is important for good judging and for good umpiring and to do it consistently with how it's been done before is part of the system of precedent. The point is when the rules are set ahead of time by the 3:07:18 PM precedent or by the law, when you're not making up the rules as you go along in the heat of the moment, which will seem unfair, which will seem like you're a partisan because you're going to seem like you're favoring one side or the other because of an allegiance to that team or favoritism. That's why in sports, as you know well, senator, because I know of your devotion to sports, there's a lot of detailed rules set forth about how the game is played and referees and umpires are supposed to call the game. That's to ensure that there is predictability, stability that the players can rely on that and that it's overall fairness. Due process is not a word used often in a refereeing contest but it is. Notice about what the rules are ahead of time so everyone has 3:08:19 PM confidence in the fairness of the game and that the umpiring, which is critical for the outcome of many games is done in a fair and impartial way. So facilitates I'm -- impartiality. The analogy is very strong, frankly. That's why I wrote that article. The chief justice that talked about the judge's umpire, because I coach and play a lot of sports. I thought about the analogy. I thought there's a lot of parallels between being a good judge and a good umpire. I'm a connoisseur of umpiring. >> I want to jump in here. I agree the analogy is strong and tight but it's imperfect. >> Yes. >> In a football G everything that happens is 3:09:23 PM predictable. Woody Hayes comes off the sideline and punches a player in the face. It was new and still nonparticipation. Coach can't play. Another 12th player can't play. There was a rule that spoke to that. What you're doing, it's not as defined. The cases that may originate are not as perfectly cabinable -- that's a word -- as in football what might help. Help me insurance the distinction of judging, umpiring and the supreme court made decisions in the past. It's not the case that every decision the supreme court has ever made is right and now a part of the permanent rule book. You sometimes have to throw them out. So sixth grade level, help us understand how from 1896 to 1954 you've repeatedly called brown the greatest moment in supreme court history. It's one of the greatest moments in American history as well. In those 58 years, the court was wrong for that whole time and yet the way we think about 3:10:23 PM precedent, we might have or six graders thinking of every decision as right. How do you reconcile the two? KAVANAUGH >> The factors that the supreme court looks at, the decisions not just wrong but really wrong. What the real world consequences are, including workability and reliance. One of the genius moves Thurgood Marshall, he started litigating case by case -- he knew plesse was wrong. He knew the way to bring about the change was to create a body of law that undermines the foundations of plessy. He started litigating cases and showing case by case that separate was not really equal. He did it in cases like Sweatt V. Painter 3:11:24 PM and many other cases. He built up a record over time that by the time he went to the supreme court to argue brown versus board of education, he had shown its inconsistency with the law that it built up around it. For those that weren't otherwise as quickly on board with the idea that plessy was wrong the day it was decided, he was take nothing changes. SASSE >> I want to interrupt you. I want you to keep coming forward. What you're describing right here in the new documentary Marshall, every mom and dad ought to show their kids, my kids and I watched this before it was public. Everybody should watch "The marshal." Continue that, please. KAVANAUGH >> I think that by the time it got to brown versus board of education, that the foundations 3:12:25 PM of overturning plessy were strengthened. By building a body of law that was inconsistent with the principle, the erroneous principle set forth in plessy. So he had a strategic vision of how to do this which was brilliant and he effectuated with a team of lawyers over time litigating case after case and building factual records that would show the badge of inferiority from it is a educational facilities and separate facilities more generally. That's how he was able to show that the precedent even with principles of stare decisis in place should be overturned. SASSE >> If you're on the court during that period, that 58-year period, I want the get to precedent, super precedent, precedent on precedent, super duper precedent. 3:13:26 PM But one of the reasons you think this is because of the Harland dissent. So back up. Sixth grade level. What is the purpose of a dissent? Why do we write them? KAVANAUGH >> We write dissents because we in a multi member court disagree with the decision made by the majority. Because we think the issue is sufficiently important, if you're on the supreme court, that perhaps a future court will pay attention to your decision or in a statutory case, sometimes maybe congress will think that your interpretation -- >> Shepard: The hearing will continue on Fox News channel after a brief commercial break. 3:19:10 PM >> Shepard: Trace Gallagher live in Los Angeles. Thank you. The Kavanaugh hearings continue now on capitol hill. This is Fox News channel. >> Ordinarily you get on board the precedent but you might still write separately to say, I think this was a huge mistake and we should go back to a different approach. You see that sometimes. I think there's lots of -- >> I want to ask but the chair will let me have three more minutes. What is the difference between an appellate court judge's job and a supreme court justice's job? >> There are many. >> Specifically with regard to questions where there's been a 3:20:11 PM precedent. >> So at the D.C. Circuit level, court of appeals level, we follow vertical stare decisis. We're not allowed to deviate from a supreme court press department. Let's put it this way. On the D.C. Circuit, we were considering a prior precedent of our own. We can do that at times if the conditions for overrule ago precedent are met. We can't do that with respect to supreme court precedent. We have to file that. Why is that? There's one supreme court in our system and lower courts have to follow that or there would be chaos in the federal system if lower counts weren't bound to follow the precedent of the supreme court. >> Is there a single supreme court justice today who agrees with every opinion of the court? >> I think that's got to be zero. 3:21:11 PM >> Right. >> So how does that get netted out in the next controversial case when you use these terms, precedent, super precedent, precedent on precedent? How does that get netted out? >> Ordinarily it gets netted out by the court following the precedent until and unless the conditions for overturning something are met. Brown versus board the most example of that happened. Erie railroad case. There's examples of it but it's rare. Ordinarily what happens once a decision is decided, that's what stare decisis means. You follow the decision by the court subject to the rules of stare decisis. That's part of stability, predictability and part of impartiality, part of public confidence and the rule of law that it's not just going to move 3:22:13 PM pillar to post and the wall is stable and foundational. Again, it's not brown versus board shows it's not absolute. That's a good thing. But it is critically important to the impartiality and stability and predictability of the law. >> The fact that Harlan should have been the guiding opinion for 58 years isn't true just for the supreme court, it was also true for an appellate court? Could an appellate judge gone with Harland in 1940? >> An appellate judge was bound by the precedent of the supreme court and that would have been sadly plessy versus Ferguson. >> So the core difference here for the supreme court is there's greater latitude to consider the errors of the supreme court? >> Yes. >> 30 seconds left. I have to get my last one out. What is the declaration of Independence? What way -- the constitution is 3:23:18 PM fundamental law for us. >> The declaration of Independence is a document declaring Independence from great Britain but set forths a series of grievances from the monarchy, the system. Many of which are reflected in the constitution in terms of protections that are in the constitution. If you trace to the declaration of Independence, you can see the grievances they have are protections in the constitution, starting with the separation of powers and including the individual protections, whether it is ex-facto laws or freedom of speech. The declaration of Independence is a set of principles that I think guide our beliefs, life, liberty and the pursuit of happiness. All men are created equal, all people are created equal in our society and the principles have guided us, inspired us than the source of our liberty, the 3:24:20 PM source of much of what we've done as a country since the declaration of Independence. But it's not law the same way the constitution is law that is applied in courts. >> Thank you. >> Senator coons. COONS >> Thank you, chairman grassley. Thank you, judge Kavanaugh, to you, to Ashley, to your family and friends. Thank you for being here and for the opportunity to engage with you. Again, you've shown great persistence and engagement. [Protesters SHOUTING in the background]. In the last round, we talked about the bedroom constitutional principle that nobody should be above the law, including president, which is a principle foundational to our democracy. It's about more than any one person, any one president. And I just want to continue asking you about the president's obligation to cooperate with the federal investigation and how your view of the president's power might implicate an 3:25:21 PM investigation. As we know in 1974, senior officials in the Nixon administration and the campaign were on trial for crimes related to watergate. With so many former white house and justice department officials implicated in crimes, then president Nixon felt threatened by the investigation. So special prosecutor Archibald cox issued a subpoena for the tapes, reasonably believing that they contained evidence of criminal activity, the president acted. Instead of supplying with the subpoena for tapes, president Nixon had the special prosecutor fired. He fought the subpoena for the tapes all the way to the supreme court. I want to focus on the question of the president's action in firing the special prosecutor because that's what I think is a key issue here. Judge, when president Nixon fired special prosecutor cox, did he violate the law or the constitution? 3:26:25 PM [Protesters in the background]. >> I know the regulation in place for Leon Jaworski after the firing. I'm not recalling the specifics of the cox regulation in place at the time. >> I'll tell you there were for cause restrictions in place at the time. Given that, do you think firing the special prosecutor violated the law or the constitution? >> If it violated the regulation, it violated the regulation. >> Would it have I'll have -- violated the constitution. What I'm getting at, are there these for-cause restrictions on the president's ability to fire the special counsel. >> The supreme court and the United States versus Richard Nixon analyzed the specific 3:27:25 PM regulation at issue in that case. Actually relied on the specific regulation and finding that the case was under the precise terms of the regulation in place at the time. The court analyzed that and really specific detail. Pointed out that so long -- [protesters in the background]. >> Let me be clear about the point I'm trying to get to. Your views about whether or not when president Nixon fired Archibald Cox, he obstructed justice or the firing itself violated the constitution. It's important for you to know your views on Nixon as well. I want to know what you think about the constitution and if it prohibits restrictions on the president's ability to fire a special prosecutor. >> My views are what the precedent says. In other words, I follow the 3:28:26 PM precedent. The precedent of the supreme court in U.S. V. Nixon case did apply that regulation -- >> Judge, that was unanimous? >> It was, 8-0. >> Are you aware of any justice questioning the decision? >> No. I've called it one of the four greatest moments in supreme court history, U.S. V. Nixon. >> You. Have that's what I want to get to. You in another context as we talked about yesterday in a roundtable in 1999 volunteered unprompted that maybe Nixon was wrongly decided. Do you think us V. Nixon was wrongly decided? >> I said it was one of the four greatest decisions and correct decisions in terms of the specific regulation at issue in the case, the court's holding in a criminal trial subpoena that the subpoena for the information, the tapes was enforceable in that context. 3:29:27 PM And that's what I said before publicly about the Nixon case. >> You would agree that it was correctly decided? Did I hear you right? >> Of course. When I say it's one -- when I say something is the greatest, that means I agree with it and the point was under the specific regulation at issue in that case, a crime trial subpoena for the information and it was a moment of judicial Independence, a moment where the court I think came together as unanimous opinion written by chief justice burger. That's an important moment in the court's history. >> So you'd agree that a court can order a president to produce records or ordered to testify in front of a grand jury? >> I'm not going to answer questions on how to apply U.S. V. Nixon. 3:30:28 PM
SENATE JUDICIARY COMMITTEE HEARING: BRETT KAVANAUGH NOMINATION - SIDE CAM 2 1400 - 1530
1330 KAVANAUGH HRG SIDE CAM 2 FS4 82 UNITED STATES SENATE COMMITTEE ON THE JUDICIARY HEARING: Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States (Day 3) Full Committee DATE: Thursday, September 6, 2018 TIME: 09:30 AM LOCATION: Hart Senate Office Building 216 PRESIDING: Chairman Charles Grassley INTRODUCERS: The Honorable Condoleezza Rice Former Secretary of State Senior Fellow at Hoover Institution Professor at Stanford University Stanford, CA The Honorable Rob Portman United States Senator State of Ohio Ms. Lisa S. Blatt Partner Arnold & Porter Washington, DC PANEL I The Honorable Brett M. Kavanaugh PANEL II Mr. Paul T. Moxley Chair American Bar Association Standing Committee on the Federal Judiciary Salt Lake City, UT Mr. John R. Tarpley Principal Evaluator American Bar Association Standing Committee on the Federal Judiciary Nashville, TN PANEL III MAJORITY Mr. Luke McCloud Former Law Clerk Associate Williams & Connolly LLP Washington, DC Ms. Louisa Garry Teacher Friends Academy Locust Valley, NY The Honorable Theodore B. Olson Partner Gibson Dunn & Crutcher Former Solicitor General United States Department of Justice Washington, DC Ms. Colleen E. Roh Sinzdak Former Student Senior Associate Hogan Lovells LLP Washington DC Professor Akhil Amar Sterling Professor of Law and Political Science Yale Law School New Haven, CT MINORITY: The Honorable Cedric Richmond U.S. Representative, Louisiana, 2nd District Chairman, Congressional Black Caucus Ms. Rochelle Garza Managing Attorney Garza & Garza Law Brownsville, TX Ms. Elizabeth Weintraub Advocacy Specialist Association of University Centers on Disabilities Silver Spring, MD Ms. Alicia Baker Indianapolis, IN Professor Melissa Murray Professor of Law New York University School of Law New York, NY PANEL IV MAJORITY: Mr. A.J. Kramer Federal Public Defender Office of the Federal Public Defender for the District of Columbia Washington, DC Ms. Rebecca Taibleson Former Law Clerk Foxpoint, WI Ms. Maureen E. Mahoney Former Deputy Solicitor General of the United States Washington, DC Mr. Kenneth Christmas Executive Vice President, Business & Legal Affairs Marvista Entertainment Los Angeles, CA MINORITY: Ms. Aalayah Eastmond Parkland, FL Mr. Jackson Corbin Hanover, PA Mr. Hunter Lachance Kennebunk, ME Ms. Melissa Smith Social Studies Teacher U.S. Grant Public High School Oklahoma City, OK PANEL V MAJORITY: Ms. Monica Mastal Real Estate Agent Washington, DC The Honorable Paul Clement Partner Kirkland & Ellis LLP Former Solicitor General United States Department of Justice Washington, DC Professor Adam White Executive Director The C. Boyden Gray Center for the Study of the Administrative State Antonin Scalia Law School George Mason University Hamilton, VA Professor Jennifer Mascott Former Law Clerk Assistant Professor of Law Antonin Scalia Law School George Mason University Arlington, VA MINORITY: Mr. John Dean Former Counsel to the President President Richard M. Nixon Professor Rebecca Ingber Associate Professor of Law Boston University School of Law Boston, MA Professor Lisa Heinzerling Justice William J. Brennan Jr. Professor of Law Georgetown University Law Center Washington, DC Professor Peter Shane Professor Law Moritz College of Law Ohio State University Columbus, OH LUNCH BREAK [1:58:29 PM] Supreme court justice. Sheldon Whitehouse is questioning Kavanaugh. >> -- Protection they feel you are owed. It's up to you do do that. >> I spoke to reporters at the direction and authorization of judge stark. >> You are citing the exact same words you answered me with beforehand. >> It's relevant to the answer of the question, if I could continue? >> What I would really like to get is an answer to the actual question I asked rather than a disquisition in the general topic area I asked. This is a very simple thing. You either will or will not or if you wish, this is -- you're welcome to say, look, I would like to take that under advisement and get back to you after some reflection and consultation, but our situation right now is that reporters may very well information about what you told them during the Starr Clinton investigation that they are unwilling to divulge now because you were a confidential source. Can you release them from that by simply saying here publicly, anybody I talked to, say what I said, it's not a problem. I don't need confidentiality anymore. >> Senator, if I could just get 30 seconds on this. If that's okay. >> 30 responsive seconds, I'm all for that. Go for it. >> Okay, I spoke to the reporters at the direction and authorization of judge Starr and therefore judge Starr would be the one who would be part of that process. I was not acting on my own. WHITE HOUSE >> No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe confidentiality. Starr's name has not come up. KAVANAUGH >> I was in turn acting as part of that office, and therefore I guess -- >> But it's yours to divulge. >> It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. [2:00:31 PM] KAVANAUGH I talked, of course on the record. WHITEHOUSE >> The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law? On I the general topic area I asked. This is a very simple thing. You either will or will not or if you wish, this is -- you're welcome to say, look, I would like to take that under advisement and get back to you after some reflection and consultation, but our situation right now is that reporters may very well information about what you told them during the Starr Clinton investigation that they are unwilling to divulge now because you were a confidential source. Can you release them from that by simply saying here publicly, anybody I talked to, say what I said, it's not a problem. I don't need confidentiality anymore. KAVANAUGH >> Senator, if I could just get 30 seconds on this. If that's okay. WHITE HOUSE >> 30 responsive seconds, I'm all for that. Go for it. KAVANAUGH >> Okay, I spoke to the reporters at the direction and authorization of judge Starr and therefore judge Starr would be the one who would be part of that process. I was not acting on my own. 2:00:02 PM WHITEHOUSE >> No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe confidentiality. Starr's name has not come up. KAVANAUGH >> I was in turn acting as part of that office, and therefore I guess -- >> But it's yours to divulge. >> It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. I talked, of course on the record. >> The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law? >> There's been justice department -- 2:01:02 PM >> Statutory law. Is there a statute that limited the protected the president against due process of law. >> There's been justice department law, but -- >> Justice department is not a law-making body, is it? >> Oh, I think it does -- I guess the term law encompasses regulations. >> Directive to the department's own employees, correct? That's what you're talking about. >> Well, that's encompassed, as I think about it, within the concept of law. >> Well, if you're going to go to the general concept of law, perhaps, but there is no law law that congress has ever passed that protects a president from either indictment or due process of law, correct? >> Congress has never passed something. The justice department -- >> Has an opinion about it, I understand that. >> Which is binding. >> On the justice department. So if, as a matter of law, a 2:02:07 PM sitting president cannot be indicted, that must be constitutional law, since there is no statutory law, as a proposition of logic, is that not correct? >> That is not correct, as I see it, because if the justice department has law that binds the justice department, that's another source of law as well. >> Okay. So let's go back to Georgetown law journal, 1998. And a conference you attended. And you spoke at it. And the panel that you were on was asked the question, who on the panel believes as a matter of law that a sitting president cannot be indicted during the term of his office. That's you and your hand shot 2:03:08 PM up. And I think you probably have seen the film clip of that because it's been posted already. Did you mean as a matter of law that olc guidance when you said that? >> I know that right before the passage you're reading, I said there's a lurking constitutional question. >> Bingo. >> The fact that I said that judges that I did not have a position on the constitution -- >> Although you shot your hand up when the question as a matter of law, a sitting president cannot be indicted came up, and it seems to me there are really only two kinds of law unless you're really stretching the envelope here. One is laws that congress passes and the other is laws that are founded in the constitution. And internal policy directive within the department of justice, I think it's a real stretch to call that law. >> Well, I appreciate that, senator, but it has been the 2:04:08 PM long-standing justice department position -- >> Policy, yes. >> And right before -- >> Is that what you meant when you put your hand up, do you know? >> That was 20 years ago, I don't know. But I know right -- >> Here's why it's important. You have been telling us I have never taken a position to say this was a constitutional principle. I have never taken a position on the constitution on that question. I did not take a position on constitutionality, period. I have never taken a position on constitutionality of indictment. Those are all things you have said during the course of this hearing. It looks to me like that's a bit of a conversion. >> Right before that, though, senator, to be fair to me, I did say there's a lurking constitutional question which implies -- >> Then you were asked to answer that question by putting your hand up, and you put your hand up saying aye, so it seems to me you answered your question by putting your hand up the way you did. >> The question wasn't the 2:05:09 PM constitution. If question was law. >> That's what I'm saying you're saying. You're saying what you meant was the olc policy position when you answered a question about law. >> What I said is I don't know what I was thinking in a panel 20 years ago, but I do know having looked at it that the question was about law, that the justice department position has been consistent for 45 years. >> As a matter of constitutional law. Right? The justice department position reflects a view of constitutional law. >> But it's an interpretation binding on everyone in the justice department, as I understand it. >> Because they're employees of the department of justice. In the same way that you can't steal the computer or you can't, you know, bring a pet into your office, whatever rules there might be. >> Well, I think internal regulations are still law. >> Okay. As long as it's your position that's what you meant by matter of law. >> Just to make it clear, I said I don't know what I meant. When I look at it now, that's what I think. >> So let's go on to recusal. 2:06:12 PM And let me -- there's a case that is somewhat on point on all of this. It's the kaperin case out of West Virginia. As you'll recall, it was a civil case, right? >> Yes. >> And it came to the supreme court because there was an objection that a judge should not sit basically the problem should not sit in his own cause, so to speak. And the problem was that one of the litigants had received three -- the judge had received $3 million in political support from one of the litigants. Is that the fact pattern, correct? >> I believe that's correct, senator. >> And the standard that the court came up with was whether that judge had -- whether that donor, that party, had a significant and disproportionate influence -- ooh, we didn't spell influence right, in placing the judge on the case. Correct? >> I believe so. 2:07:13 PM >> And so justice Kennedy -- >> The justice Kennedy opinion. >> Decided the constitution requires recusal. >> Mm-hmm. >> If the constitution requires recusal of a judge who was the beneficiary of a $3 million piece of political support to help him get into office, wasn't it follow per force that the person who actually appointed the judge would be in a similar or stronger position of significant and disproportionate influence? >> Senator, the question in the Caperton case, as I said, was because of the amount of money, the financial interest, which is a whole separate branch. >> Correct, which would have a dissignificant and disproportionate influence on the judge becoming a judge, right? That's what the connection was. The spending of money by the party helped make the judge the judge. 2:08:13 PM In this case, if a criminal matter involving president trump came before you, he wouldn't have just spent $3 million to make you a judge. He would have flat out made you the judge, 100% finito, right? >> Senator, the question of recusal is something that is governed by precedent, governed by rules. One of the underappreciated aspects of recusal is whenever I have had a significant question of recusal as a judge on the D.C. Circuit, I have consulted with colleagues and so too they have consulted with me when they had their own questions. That's part of the process. >> Isn't actually the 100% responsibility for direct appointment more significant in terms of influence than simply making a big political contribution to a judge? That's like 100% responsibility. Appointed, period, done. >> Well, just on the -- I don't mean to quibble, but on the premise of your question, the senate obviously, it's a shared 2:09:13 PM responsibility, the president and senate participate in the supreme court confirmation process. Appointment process. >> You were very clear yesterday in our discussion it was the president of the United States who appointed you. And this is about that. This is about how you get to the seat, and you got appointed by the president. Would that not pertain as a significant influence? I mean, what possible greater influence could there be on who is in the seat that you're nominated to than the nomination of the president to that seat? >> So two points if I could, senator. First, I have said already. I don't believe it appropriate in this context to make decisions and recusal is a decision on a case, so I don't think it's appropriate. >> If it's not appropriate, let me move on with something else because let me ask you about the 2:10:14 PM question of presidential shall we say conflicts with prosecutors. When you were in the Starr prosecution effort, you were exposed to this contest with the Clinton white house. And you described the Clinton white house as running a, and I'm quoting you here, prejudicially approved smear campaign was one phrase you used. A disgraceful effort to undermine the rule of law was another phrase you used. An episode that will forever stand as a dark chapter in American history. >> That was about something different. >> And you prejudicially approved smear campaign against Starr was what the topic was. You then said in a later memo that the president has tried to disgrace Starr and his office 2:11:14 PM with a sustained propaganda campaign that would make Nixon blush, and he should be forced to account for that. Have your views of presidential interference or smearing of independent or special counsel changed since you made those statements? >> Those comments were in a memo written, as I recall -- >> Two memos. But close enough, yeah. >> Well, the one that I'm remembering, written late at night after an emotional meeting in the office dashed off and some of the language in that, as I think I told you, or told some of the senators in individual meetings, was heated. And I understand that. But that was my memo at the time. I think I have been clear, I don't want to talk about current events because I don't think -- I'm a sitting judge as well as a nominee. I don't think I should talk 2:12:15 PM about current events. >> How about the guy, the guy who was outraged at being on the receiving end of a smear campaign. Does that guy still exist or is he long gone? >> Well, that's -- that's what I wrote at the time, how I felt one night after a meeting we had in August of 1998, I believe, at least the memo I'm remembering. >> Last topic because my time is getting short here. The hypothetical problem that I have has to do with an appellate court which makes a finding of fact. Asserts a proposition of fact to be true. And upon that proposition, hangs the decision that it reaches. And the question is, what happens when that proposition of fact actually in reality, you have referenced the real world so often, actually in reality 2:13:16 PM turns out not to be true? What is the obligation of an appellate court if it has hung a decision on a proposition of fact and then the proposition of fact turns out not to be true? Does it have any obligation to go back and try to clean up that discrepancy, to clean up that mess? >> I think, senator, it's probably hard to answer that question in the abstract because -- >> But if I give you specifics, then you'll say you can't answer that because that would be talking about a case. So I'm kind of in a quandary here with you. >> I was going to biv you a couple thoughts, which I think that would be wrapped up in the question of precedent and stare decisis, and one of the things you could look at, one of the factors you could look at, how wrong was the decision, and if it's based on an erroneous factual premise, that is clearly one of the factors you would -- >> You would look at -- >> Mistake of history. Sometimes there have been cases where there have been mistakes of history in decisions, 2:14:17 PM mistakes of fact. >> Quickly, the two examples that come ready to mind, one is Shelby county. In which the court said in looking at whether there was still any kind of institutional racism in the preclearance states they needed to worry about, nope, the quote, country has changed and current conditions, to use their phrase, are different. First, where do you suppose the five justices who made that decision got expertise in vestigial state racism to make that determination at all? >> I can't comment on the decision other than to say it's a precedent. I understand the point you're making about -- >> Because you do know that since then, both North Carolina was found to have targeted minority votes with, quote, surgical precision, which is pretty rough phrase. And Texas got after it so frequently that a federal court finally said, look, we think there's a penchant for 2:15:17 PM discrimination here. So if you have got the five judges saying that it's over in these states and then it turns out it really isn't over, that there's actually still surgical precision targeted of minority voters and there's a penchant for discrimination in the Texas state government, that ought to be something that might cause some reconsideration of the Shelby holding, oughtant it? >> So three things on that. I think, senator, one, I think the case did not strike down preclearances opposed to saying the formula needed -- >> De facto it did. Preclearance ended in all those states with that decision. >> I understand that. >> So I have one minute left. Let me jump to the other example. Because I think it's an important one and my time is running out. That is citizens united. Citizens united took on the proposition that the unlimited spending that it authorized by people capable of unlimited spending would be both 2:16:20 PM transparent and independent. Correct? >> The court upheld the disclosure requirements in that case, if that's the question. >> It said more than that. It said it's the transparency and the Independence of the spending that it authorized that were the guardians against the corruption. >> Right. So it wasn't contributions to parties or candidates, correct. >> So the first amendment ends where efforts to corrupt begin, correct? You don't have a first amendment right to corrupt your government. KAVANAUGH >> The supreme court has relied on corruption in the appearance of corruption as part of the test, and it's -- you know this very well. >> In order to fend off the argument that big money corrupts and absolute money corrupts absolutely, they said no because there's going to be independents and transparency. In fact, if I remember correctly, they said -- I don't have it in front of me, oh, here 2:17:21 PM we go. The separation between candidates and independent expenditures negates the possibility of corruption. So if they're wrong factually about this spending being transparent, and we know that they are from what we have seen since then, and if they're wrong factually about the Independence of this spending and we know they are from actual events that have happened since then, then that strikes a pretty hard blow against the logic of citizens united, does it not? >> So citizens united, as you know, is a precedent of the supreme court, so entitled the respect as a matter of stare decisis. As you know and I would just reiterate, if someone wants to challenge that decision, they -- one of the things that anyone can raise about any case is that it's based on a mistaken premise or mistaken factual premises, and that's the kind of things courts are open to hearing. >> My time has expired. I thank the chairman for the 2:18:23 PM indulgence of the extra minute. >> A couple things. First, I would note -- BREAK IN CNN COVERAGE. NO OTHER CABLE NEWS AIRING RIGHT NOW. 2:19:25 PM ? Experience amazing at your Lexus dealer. >> Dana: Back to the hearing. The >> It was a different aspect of that investigation. >> Senator Cruz. CRUZ >> Thank you, Mr. Chairman, I want to note at outset, senator from Rhode Island took his questioning as an opportunity to inpune residents of north Carolina and Texas as having a pension for bigotry and I appreciate the compassion from the senator from Rhode Island. I will point out, let you rise to the defense of your own state and point out in the state of Texas, that we had just a few years back three statewide elected African American officials, all Republican, I might note, I believe at the time was the most of any state 2:20:26 PM in the union and I think it is the case Rhode Island has none. [SHOUTING in the background] >> For the record, I apologize to my colleague if he takes umbridge about reference to Texas, this was in Texas referring to the decision-makers in that case. >> Senator, you have 30 additional seconds. CRUZ >> Senator: Judge Kavanaugh, yesterday you had some discussion with senator Lee about what it means to be a textualist and I want to go back and revisit that conversation and ask, for someone at home, who is watching this, why should it matter to them if a judge is a textualist? What difference does it make to somebody not involved with the 2:21:27 PM supreme court? KAVANAUGH >> Judge Kavanaugh: Senator, goes to constitution and the system the framers designed with a legislative branch and executive branch and judicial branch that were all separate, as was said in federalist 78, the judiciary does not exercise will, but it exercises judgment. The policy decisions are made by the legislative branch, with the president, of course, in terms of signing legislation, so the house issue the senate and the president. The president enforces federal law, comes to the judiciary. When we interpret a statute, if we, as judges must adhere to the text of the statute, why is that? Two reasons, I think are paramount, the first is the statute as written is what was passed as a formal matter by the congress, by both houses of the congress, signed by the president into law. 2:22:28 PM A formal matter, that is the law. So if we're going to exercise judgment, not will, we need to adhere to the law as passed and the law as passed reflected in written words that were, went through both houses and signed by the president. Secondly, in supporting that, as practical matter, legislation is a compromise. And within the senate, within the house, with the president, as well, lots of compromises are inherent in any legislative product, that is what my experience shows, that is what I know your experience shows, as well, senator. So when a case comes to court, statute comes to court, you know, we upset the compromise that you so carefully reached and where people might have given up this for that in terms of the legislative final language and we then insert ourselves after the fact into the process and upset the compromise, if we don't stick to 2:23:29 PM the actual words of the text of the statute as passed by congress. So as both a formal matter of what the law is and as a practical matter of not inserting ourselves into the legislative process and upsetting the legislative process, it is critical that judges stick to the law, as written, text of statute as passed by congress and signed by the president. >> Senator: What in your view is the proper role, if any, for legislative history in statutory adjudication? Different justices have different views on this. >> Judge Kavanaugh: I think all judges are much more skeptical of legislative history than they once were, that's the influence, as you know, senator, largely of justice Scalia, very mainstream now to be skeptical of legislative history and again, two reasons support that skepticism, if not outright refusal to use it. The first is that the 2:24:30 PM legislative history, the committee reports or the floor statements made by individual members on floor of the house or senate are not part of the law as passed and that is important, it would be very easy, I said in my articles, for congress, if paragraph or page or more in legislative history in committee report that was really important, put it into the law, put it into the introduction of the law, have it be part of the law that is passed. When it is a committee report, might be seen by one committee and one house, might not have been seen by the other house, the president, of course, is part of the process, might never have seen it. To rely on that is to upset the formal process by which law is enacted in the United States. So, too, again, the legislative history, the committee report, is not part of the compromise that's reached between the house and the senate and the president, at least not ordinarily, allowing one committee, for example, or one member to go down to the floor 2:25:30 PM of the house or senate and to say something that will shape subsequent judicial interpretation and upset the careful compromise that is reflected in the tax that is passed by the senate, passed by the house and signed by the president. Again, both formal and practical reasons why skepticism of legislative histories warranted and why justice Scalia able to persuade justices across the spectrum, judges across the spectrum, legislative histories useful for understanding why something came to be, but not as tool for upsetting or changing your interpretation of the words of the statute. >> Senator: Also, yesterday when you were talking with senator Lee, I believe you described yourself as an originalist. Can you explain what that means to you, what you mean by that? And why, again, people at home should care, why that should 2:26:30 PM matter if a judge or justice is an originalist? >> Judge Kavanaugh: By originalist, it is important to be clear, there are different things people hear when they hear the term originalist. There was an old school of origin intent, subjective intention of the drafters or ratifiers and that is not really the proper approach in my view, for similar reasons to the discussion of legislative history with statutes. By originalist, what I've meant is original public meaning or the constitutional textualism is the term I use that refers to the same concept, which is pay attention to the words of the constitution. The constitution is article 6 of the constitution makes clear, is law. It is not aspirational principles, it is law, the supreme law of the land. In that sense, it's superior to statutes, but law-like just like statutes, superior law. The constitution itself 2:27:31 PM including the amendments, original constitution was itself a compromise, as law and it is a compromise reached Philadelphia in the summer of 1787 and of course Madison's notes and history that shows all the compromises were reached, probably most famous compromise is the compromise that allows for representation according to population in the house, representation according to state and the senate, the Connecticut compromise as it is often referred to. It is important for judges again, not to upset the formal law that is written in the constitution or to upset the compromises reached either in the original constitution or in the amendments, now one key thing to add to that is precedent is part of the constitutional interpretation, as well, as federalist 78 makes clear and judicial power clause of article 3 makes clear, so a system of precedent is built into how judges interpret the constitution and constitutional 2:28:31 PM cases on an ongoing basis, that is part of the proper mode of constitutional interpretation and important system of precedent. >> Senator: Thank you. Let's shift back to the topic you and I discussed yesterday, religious liberty, a topic of consideration interest and importance to a great many Americans. In private practice, you wrote an amicus brief in the Santa Fe case for congressmen Steve Largin and J.C. Watts. Can you describe what that case was about and your representation there? >> Judge Kavanaugh: I will. Attorney general for the state of Texas and did outstanding job. I remember participating in the moot court as the senator recalled. Didn't turn out too well, judge. You did an excellent job, senator, I remember being there. The case involved prayer before 2:29:33 PM a football game. The supreme court had number of cases on religious expression in schools. School sponsored prayer at school events is often impermissible, Lee versus Wiseman. The same time, when students want to express themselves in some way, t-shirt, clothing or saying their own prayer, say before a football game or other events, the students want to say a prayer for themselves or there is an open forum, students are allowed to say whatever they want and one student chooses to talk about religion or say a prayer, that's on the generally on the free speech side of the house, freedom of religion side of the house of the supreme court precedent, which would protect religious liberty of the 2:30:36 PM individual in that circumstance. The Santa fe case came, I think senator Cornyn would say, well, senator Cornyn would say on free speech freedom of religion side of the house. The supreme court thought the school was too involved, I would say, in the prayer opportunity in that case and thus attributed prayer in that case to the school and the supreme court therefore said that the prayer in that case was impermissible. It was very fact-specific, based on how some of the actual prayers had gone down in the school district there. So it was really in the gray area on the facts between the two principles, freedom of speech and freedom of religion for individuals, on the one hand, no school-sponsored prayer, on the other and those two principles are part of the supreme court precedent that I think the courts have applied for a long time now. >> Senator: So what led you to want to take on that 2:31:37 PM representation in the amicus brief? >> Judge Kavanaugh: I think at that time I was asked to work on several cases involving religious liberty and religious speech. I also did a case in amicus in the good news club case. That was a case where a school district allowed use of the gymnasium auditorium area after school for whatever group from the community wanted to use the facility and they would allow everyone to come in, you know, boy scouts, the -- any community group to come in, but didn't allow religious groups to come in. That seemed to be discrimination against religion, discrimination against religious people, religious speech. I was asked to do a amicus brief that made the point religious people, religious speakers and 2:32:38 PM speech is entitled to its place on equal basis in the public square, including, in this case, the school auditorium or gymnasium. The supreme court agreed with that principle in that case, stating discrimination against religion in public facilities and in the nature of what was going on in that case was impermissible and violation of freedom of speech, freedom of religion and therefore unconstitutional. Those cases are important, it is important that the -- to recognize constitution, first amendment of the constitution, as well as many statutes, of course, protect religious liberty in the United States, religious freedom in the united States and I said in some of my opinions, we're all equally American, no matter what religion we are or no religion at all, religious speakers and a right to their place in the public square. >> Senator: Another case you 2:33:38 PM were involved in as a judge, you wrote dissent from denial of rehearing on bonds in the priest for life case. Can you tell the committee about that case and your opinion there? >> Judge Kavanaugh: That was a group that was being forced to provide certain kind of health coverage over their religious objection to their employees and under the religious freedom restoration act, the question was first was this substantial burden on the religious exercise and it seemed to me clearly it was. It was technical matter of filling out a form, in that case, they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were as religious matter objected to. Second question was, did the government have a compelling interest, nonetheless in providing the coverage to the 2:34:40 PM employees and applying the governing supreme court precedent from hobby lobby, I said the answer was yes, the government had compelling interest following justice Kennedy opinion and hobby lobby said the government did have interest in ensuring access and came down to least restrictive means prong of the restoration act and that prong was the act to my mind is an opportunity to see, is there a win/win in some respects? In other words, government interests in ensuring healthcare coverage, can that be provided without doing on the backs of the religious objector? That is what the court is looking for. The professor had written about. That case, it seemed to me the governor had avenues to ensure that the coverage was provided without doing so on the backs of the religious objectors and I so ruled following the supreme court precedent in hobby lobby and subsequent case Wheaton 2:35:41 PM college, they had an order I followed and seemed to me to dictate the result that I identified in the priest for life decent. Another case, to reiterate, overwhelmingly passed by congress in the early 1990 and signed by president Clinton and was important addition to the protection of religious freedom in the United States to supplement the constitutional protection that exists in the free exercise clause. >> Senator: Well, and I would note much like yesterday, when we discussed your pro Bono representation of the synagogue that priest for life using some on the democratic aisle paradigm suggested little guy and big guy, little guy against almost all powerful federal government and in that opinion, presumably because you felt the law dictated it, you sided with the priest for life in that 2:36:42 PM decision. >> Judge Kavanaugh: That's correct, senator, I think a lot of religious freedom cases, the supreme courts had, that has been the case. There was a prisoner, opinion written by justice Alito, I believe, unanimous, prisoners being Muslim prisoner being forced to shave his beard in violation of religious beliefs. Justice Alito wrote opinion for the supreme court saying that was substantial burden on his religion and was not necessary and that is just another example of how religious liberty protects all of us, no matter our religious briefs, that is principle of both of the constitution and religious freedom restoration act. >> Senator: Another case you were involved in that stood out to me personally, just being Cuban American, is that as I understand it, in November 1999, when Elian Gonzalez came to this 2:38:46 PM a question under the due process clause. And interestingly, it seemed that the ins had not -- was interpreting the refugee act in way that seemed stretch of the statutory language and was not some kind of formal regulation, so the question of Chevron deference to informal agency position was question in the case and I wrote the circ position and petition saying that the agency was stretching the language of the statute beyond recognition and doing so in way that was entitled to no deference because it was not in any kind of formal regulation, which years later turns out to be a position supreme court has agreed with in terms of administrative law, but in that case, I got involved because I was asked to get involved on moment's notice in case of purposes for people who needed help -- >> Senator: Let me ask one final 2:39:47 PM question, you've been nominated to the highest court in the land. As you know, there is another highest court in the land, that is the basketball court, atop the U.S. Supreme court courtroom and I believe no sitting justice has played regularly there since justice Thomas many years ago when he was a much younger justice. If you are confirmed, do you intend to break that tradition and return to having a justice play on the highest court in the land? >> Judge Kavanaugh: Well, I do, if fortunate enough to be confirmed justice Thomas did at some point get injured, I hope that precedent is not one I would follow, yes, indeed, senator. Thank you. >> Senator: Excellent, glad to hear it. GRASSLEY >> Before I call on senator -- BREAK IN COVERAGE / NO CABLE NEWS AIRING HEARING 14:42 KLOBUCHAR QUESTIONING KAVANAUGH GAP IN CC 2:47:36 PM KLOBUCHAR >> Senator: I'm going back to 2009, which isn't that long ago and the university of Minnesota law review and that is where you said we should not burden a sitting president with civil suits, criminal investigations, or criminal prosecution, and when you and I talked yesterday, you said that congress could still pursue an impeachment proceeding, right? KAVANAUGH >> Judge Kavanaugh: Yes, impeachment mechanism. KLOBUCHAR >> Senator: Your view back then, you wouldn't comment on it. Your view when you wrote this was that -- well, your view now is that congress should be able to pursue impeachment? KAVANAUGH >> Judge Kavanaugh: Well, the constitution -- KLOBUCHAR >> Jessica: Yes. KAVANAUGH >> Judge Kavanaugh: Specifies impeachment as tool in the constitution itself. KLOBUCHAR >> Senator: Go back to when you wrote this, not hypothetical, when you wrote this in 2009, you were thinking about it, did you think then and this is what you meant, that a president shouldn't have to be 2:48:37 PM investigated? You said it, right? >> Judge Kavanaugh: Well, the context there, I believe, senator, was talking about civil suits or criminal investigations or criminal lawsuits and it was not my position on the constitutionality, it was something for congress to consider and the idea was reflecting on my experience after September 11th and what we could do to make the presidency the most effective for the American people. >> Senator: I'm trying to understand in practicality when you look at last impeachment proceedings how you would do it if you didn't have an investigation, other ones used independent counsel, special counsel and if you don't have that, don't you effectively eviscerate the ich -- impeachment part of the constitution? >> Judge Kavanaugh: Not at all. >> Senator: Why would we want to foreclose our ability to use special counsel or independent 2:49:37 PM counsel? >> Judge Kavanaugh: So that is your decision ultimately in congress to decide, that is one view you just articulated and of course congress is not enacted any special deferral for civil suit, congress is stuck with Jones V. Clinton result from that case and of course stuck with the existing system of special counsels. >> Senator: To get back to where you were in 2009 when you wrote this as opposed to using a hypothetical. So we said several times here no one is above the law, I said that in my opening statement, but when you said this, you men no one is temporarily above the law, if a sitting president, she was in office and there was some crime committed, murder, white-collar crime, anything, you are say nothing this article, she shoot be subject to criminal prosecution? >> Judge Kavanaugh: That would 2:50:38 PM be issue for congress to consider if it wanted to pursue temporary deferral. There are statutes for members of the military, service members serving overseas, I think president Clinton in Clinton V Jones case cited that as something statutory deferral, not immunity, important to establish immunity from deferral. But timing of when a particular litigation will occur. I wouldn't call that above the call, I would call that a timing question. >> Senator: Okay, that would be a long time if a president was serving for four years or eight years, given and again, I'm reading the words, we should not burden sitting president with civil suits, criminal investigation or criminal prosecution, so it feels to me that was your view when you wrote that. >> Judge Kavanaugh: Well, it was an idea for congress to consider along with many other ideas about judicial confirmations and war powers and all reflecting, 2:51:39 PM that was reflecting on idea congress could consider, whole point was to make -- help the country do better based on my observations from five and a half years working in a white house where during war, during wartime. The >> Senator: Okay. Another topic, follow-up from senator Harris' questions from last night. She asked you questions about voting rights and ranking member of the rules committee and as she noted, many states have restricted access to voting since the supreme court's decision in Shelby county, struck down key provision of voting rights act. Brennan center, 23 states have more restricted voting laws than in 2010. Many laws challenged in court, some overturned, so here is one more question on this. Should courts consider these widespread efforts to restrict voting, what has been going on 2:52:40 PM since 2010, when ruling on challenges to statutes that effect the right to vote? >> Judge Kavanaugh: Well, I think in any particular case, senator, you'd want to see what the record established in the case was and the record could include what is going on in that particular state and I can imagine a factual record where that would include also potentially what is going on in other states, as well. >> Senator: Thank you. Thanks. That is by Brennan center and other nonpartisan organizations have found no evidence of widespread voter fraud and study by "Washington post" found only 31 credible instances of fraud from 2000 to 2014 out of more than 1 billion ballots cast. Do you believe there is evidence of voter fraud, do you believe I know you told senator Harris you watch, read some election law blogs, sitting here last night, and so have you read one of the articles on widespread voter fraud on one of the blogs you 2:53:42 PM mentioned? I'm just concerned because that is out there, I would think that is something that could be looked at? >> Judge Kavanaugh: Look at professor hassan's election law blog and that is one of the ones that I've looked at, other blogs, as well, and there is discussion of this issue and I would want as a sitting judge, want to see a record before me of what is going on in a particular case. I hesitate to opine on something I read in a law review article, I think you have a better sense of what is going on there, I would want a record to determine what the evidence in that particular case was. >> Senator: Okay. I want to turn now to affirmative action and senator booker raised these questions late last night. In a speech at notre dame you discussed long-standing exception, end quote, to "Basic equal protection right not to be 2:54:42 PM treated differently by government on account of your race," and summarize court debate on this issue and remarked on what basis is the court making those decisions, is there something in the text of the constitution that tells us one is good enough and the other is not good enough, not really. Again, this is common law judging to define the contours of the exception to the institutional right. What did you mean by that? >> Judge Kavanaugh: I meant in many areas of constitutional law, we have free speech rights, we have exceptions, analyzed usually talking about under strict jut nee, talked about the second amendment, how the second amendment right and so too in 14th amendment, equal protection context, what kinds of programs are permissible, consistent with equal protection right and the precedent is critical on this, precedent built up, means 2:55:44 PM FOX NEWS BREAKS FOR COMMERCIAL/ NO OTHER CABLE NEWS COVERING 2:57:03 PM >> Now back to the hearing. Amy klobuchar questioning. KAVANAUGH >> My note in that case, as I understand it was rooted in supreme court precedent, the krosen case. And krosen is where the court invalidated a Richmond contracting program, as I recall, and so that precedent made clear what conditions need to be satisfied before a racial -- a contracting program of that kind could be sustained consistent with the constitution and the analysis that we went through set -- suggested that at least as it was being applied, as I recall, the federal program ran afoul of the supreme court press department supplied in the krosen case so I was giving advice on how it would fit in 2:58:05 PM the krosen case. That's my best understanding. I haven't gone back to restudy it. >> Maybe we can get that in writing at some point if you want to look back at it. We've witnessed unprecedented attacks on journalists the past several months. This should be concerning because journalism is part of our democracy. My dad was a journalist his entire life. He wrote a blog. He's 90. You probably didn't read that one. In "New York Times," the court issues a landmark ruling for protections for the press when newspapers report on public officials they can say what they want unless it's untrue with actual malice. 2:59:05 PM You believe public officials could sue the media under any standard less demanding than actual malice and can you explain what that standard means to you. >> The supreme court has elaborated on and applied that standard repeatedly over time. I have, too, as a lower court judge. So that precedent is now been applied over and over again. I'm not aware of much effort to deviate from that standard. Interestingly in "New York Times" versus Sullivan, in the course of that opinion, the court said the sedition act of 1790 had been overturned -- >> We're going to continue following Brett Kavanaugh's confirmation hearing. It's time for "Shepard Smith reporting." I'm Dana. Here's shep. 3:00:10 PM >> Shepard: I Shepard Smith in New York. We're going right back to the hearings in just a moment. 3:02:05 PM The hearings for judge Kavanaugh continue on capitol hill. More news as it breaks. Now back to Washington. >> The relationships of reporters and their sources. Again, the criminal civil divide there is something that I think has been a part of the case law in the past where the criminal context has been deemed in some cases sufficiently compelling. But that is -- set forth part of the reporter's privilege and the relationship with confidential services in the role of the reporter in bringing light to democracy. >> Thank you. GRASSLEY >> I'd like to note we've had good luck in confirming this week eight federal judges to lifetime appointments. [Protesters in background]. 3:03:13 PM Eight federal judges, lifetime appointments this week. Last week we did seven judges, 12 were confirmed without any objection from Democrats, and so we've had a pretty good record of being able to show that you don't have anything to fear from lifetime appointments for federal judges like we've heard a big issue today. Go ahead. SASSE >> Thank you, Mr. Chairman. Judge, welcome back. Congratulations on your last day of interviewing in your life. I'd like to talk about precedent. You've been a law professor. How long? >> I started in 2007, the first year. >> Okay. Let's pretend you're a sixth grade civics teacher for our 20 minutes together instead of law professor. Precedence is important but I don't think the -- it's not 3:04:15 PM something the American people know and it's something that maybe we can benefit from. Has the supreme court ever made a mistake? >> The supreme court has made some major mistakes at times. Dread Scott, good example. >> How do you know when you have a mistake? >> Sometimes you know right away. I think in those cases with the dissents written in those cases, those dissenters knew right away. I think they were mistakes right away. Plessy versus Ferguson was right. >> What was the ruling count, do you remember? The vote? >> There was one dissenter, justice Harlan. He was the only dissenter in that case. >> Okay. It's so close to McCain's event that I know we shouldn't be joking right now, but I want to talk about lunch. Republican senators have lunch together three times a week. When we do, if somebody's phone 3:05:16 PM goes off, it was always John McCain's. He wouldn't know it came on full volume 10. It was like a ghost of lunches past. You wrote a really important article in catholic law review, the ten principles of good umpiring. It wasn't about you as basketball coach. It was about the job of a judge. I'm going to speed through them. I'm oversimplifying, but your top ten list was, if you're an umpire, you can't be a part son. You have no rooting interests, no fan favorites. Number 2, the rules have to exist before the game. Number 3, apply the rules consistently. 4, can't remakes the rules on your preferences. [Protesters in background]. >> It may be case that the NFL decides that a targeting penalty doesn't work. Number 5, you have to have 3:06:17 PM backbone or courage. Number 6, tune out the crowd. Number 7, an open mind. You think you know what case is coming before you and people may present arguments different than thought. Number 8, you need the demeanor and temperament. Number 9, you have to work with your colleagues and number 10, you have to be goods at explaining. Rule number 2, the rules have to exist before the game. You go from a paragraph by paragraph structure. You pause and have a long 2 B and you explain about precedent. Can you give us a 60 or 90-second view about how precedent relates to having rules of the game before the game? >> Yes. Precedent is important for stability and predictability. So to know what the rules are ahead of time is important for good judging and for good umpiring and to do it consistently with how it's been done before is part of the system of precedent. The point is when the rules are set ahead of time by the 3:07:18 PM precedent or by the law, when you're not making up the rules as you go along in the heat of the moment, which will seem unfair, which will seem like you're a partisan because you're going to seem like you're favoring one side or the other because of an allegiance to that team or favoritism. That's why in sports, as you know well, senator, because I know of your devotion to sports, there's a lot of detailed rules set forth about how the game is played and referees and umpires are supposed to call the game. That's to ensure that there is predictability, stability that the players can rely on that and that it's overall fairness. Due process is not a word used often in a refereeing contest but it is. Notice about what the rules are ahead of time so everyone has 3:08:19 PM confidence in the fairness of the game and that the umpiring, which is critical for the outcome of many games is done in a fair and impartial way. So facilitates I'm -- impartiality. The analogy is very strong, frankly. That's why I wrote that article. The chief justice that talked about the judge's umpire, because I coach and play a lot of sports. I thought about the analogy. I thought there's a lot of parallels between being a good judge and a good umpire. I'm a connoisseur of umpiring. >> I want to jump in here. I agree the analogy is strong and tight but it's imperfect. >> Yes. >> In a football G everything that happens is 3:09:23 PM predictable. Woody Hayes comes off the sideline and punches a player in the face. It was new and still nonparticipation. Coach can't play. Another 12th player can't play. There was a rule that spoke to that. What you're doing, it's not as defined. The cases that may originate are not as perfectly cabinable -- that's a word -- as in football what might help. Help me insurance the distinction of judging, umpiring and the supreme court made decisions in the past. It's not the case that every decision the supreme court has ever made is right and now a part of the permanent rule book. You sometimes have to throw them out. So sixth grade level, help us understand how from 1896 to 1954 you've repeatedly called brown the greatest moment in supreme court history. It's one of the greatest moments in American history as well. In those 58 years, the court was wrong for that whole time and yet the way we think about 3:10:23 PM precedent, we might have or six graders thinking of every decision as right. How do you reconcile the two? KAVANAUGH >> The factors that the supreme court looks at, the decisions not just wrong but really wrong. What the real world consequences are, including workability and reliance. One of the genius moves Thurgood Marshall, he started litigating case by case -- he knew plesse was wrong. He knew the way to bring about the change was to create a body of law that undermines the foundations of plessy. He started litigating cases and showing case by case that separate was not really equal. He did it in cases like Sweatt V. Painter 3:11:24 PM and many other cases. He built up a record over time that by the time he went to the supreme court to argue brown versus board of education, he had shown its inconsistency with the law that it built up around it. For those that weren't otherwise as quickly on board with the idea that plessy was wrong the day it was decided, he was take nothing changes. SASSE >> I want to interrupt you. I want you to keep coming forward. What you're describing right here in the new documentary Marshall, every mom and dad ought to show their kids, my kids and I watched this before it was public. Everybody should watch "The marshal." Continue that, please. KAVANAUGH >> I think that by the time it got to brown versus board of education, that the foundations 3:12:25 PM of overturning plessy were strengthened. By building a body of law that was inconsistent with the principle, the erroneous principle set forth in plessy. So he had a strategic vision of how to do this which was brilliant and he effectuated with a team of lawyers over time litigating case after case and building factual records that would show the badge of inferiority from it is a educational facilities and separate facilities more generally. That's how he was able to show that the precedent even with principles of stare decisis in place should be overturned. SASSE >> If you're on the court during that period, that 58-year period, I want the get to precedent, super precedent, precedent on precedent, super duper precedent. 3:13:26 PM But one of the reasons you think this is because of the Harland dissent. So back up. Sixth grade level. What is the purpose of a dissent? Why do we write them? KAVANAUGH >> We write dissents because we in a multi member court disagree with the decision made by the majority. Because we think the issue is sufficiently important, if you're on the supreme court, that perhaps a future court will pay attention to your decision or in a statutory case, sometimes maybe congress will think that your interpretation -- >> Shepard: The hearing will continue on Fox News channel after a brief commercial break. 3:19:10 PM >> Shepard: Trace Gallagher live in Los Angeles. Thank you. The Kavanaugh hearings continue now on capitol hill. This is Fox News channel. >> Ordinarily you get on board the precedent but you might still write separately to say, I think this was a huge mistake and we should go back to a different approach. You see that sometimes. I think there's lots of -- >> I want to ask but the chair will let me have three more minutes. What is the difference between an appellate court judge's job and a supreme court justice's job? >> There are many. >> Specifically with regard to questions where there's been a 3:20:11 PM precedent. >> So at the D.C. Circuit level, court of appeals level, we follow vertical stare decisis. We're not allowed to deviate from a supreme court press department. Let's put it this way. On the D.C. Circuit, we were considering a prior precedent of our own. We can do that at times if the conditions for overrule ago precedent are met. We can't do that with respect to supreme court precedent. We have to file that. Why is that? There's one supreme court in our system and lower courts have to follow that or there would be chaos in the federal system if lower counts weren't bound to follow the precedent of the supreme court. >> Is there a single supreme court justice today who agrees with every opinion of the court? >> I think that's got to be zero. 3:21:11 PM >> Right. >> So how does that get netted out in the next controversial case when you use these terms, precedent, super precedent, precedent on precedent? How does that get netted out? >> Ordinarily it gets netted out by the court following the precedent until and unless the conditions for overturning something are met. Brown versus board the most example of that happened. Erie railroad case. There's examples of it but it's rare. Ordinarily what happens once a decision is decided, that's what stare decisis means. You follow the decision by the court subject to the rules of stare decisis. That's part of stability, predictability and part of impartiality, part of public confidence and the rule of law that it's not just going to move 3:22:13 PM pillar to post and the wall is stable and foundational. Again, it's not brown versus board shows it's not absolute. That's a good thing. But it is critically important to the impartiality and stability and predictability of the law. >> The fact that Harlan should have been the guiding opinion for 58 years isn't true just for the supreme court, it was also true for an appellate court? Could an appellate judge gone with Harland in 1940? >> An appellate judge was bound by the precedent of the supreme court and that would have been sadly plessy versus Ferguson. >> So the core difference here for the supreme court is there's greater latitude to consider the errors of the supreme court? >> Yes. >> 30 seconds left. I have to get my last one out. What is the declaration of Independence? What way -- the constitution is 3:23:18 PM fundamental law for us. >> The declaration of Independence is a document declaring Independence from great Britain but set forths a series of grievances from the monarchy, the system. Many of which are reflected in the constitution in terms of protections that are in the constitution. If you trace to the declaration of Independence, you can see the grievances they have are protections in the constitution, starting with the separation of powers and including the individual protections, whether it is ex-facto laws or freedom of speech. The declaration of Independence is a set of principles that I think guide our beliefs, life, liberty and the pursuit of happiness. All men are created equal, all people are created equal in our society and the principles have guided us, inspired us than the source of our liberty, the 3:24:20 PM source of much of what we've done as a country since the declaration of Independence. But it's not law the same way the constitution is law that is applied in courts. >> Thank you. >> Senator coons. COONS >> Thank you, chairman grassley. Thank you, judge Kavanaugh, to you, to Ashley, to your family and friends. Thank you for being here and for the opportunity to engage with you. Again, you've shown great persistence and engagement. [Protesters SHOUTING in the background]. In the last round, we talked about the bedroom constitutional principle that nobody should be above the law, including president, which is a principle foundational to our democracy. It's about more than any one person, any one president. And I just want to continue asking you about the president's obligation to cooperate with the federal investigation and how your view of the president's power might implicate an 3:25:21 PM investigation. As we know in 1974, senior officials in the Nixon administration and the campaign were on trial for crimes related to watergate. With so many former white house and justice department officials implicated in crimes, then president Nixon felt threatened by the investigation. So special prosecutor Archibald cox issued a subpoena for the tapes, reasonably believing that they contained evidence of criminal activity, the president acted. Instead of supplying with the subpoena for tapes, president Nixon had the special prosecutor fired. He fought the subpoena for the tapes all the way to the supreme court. I want to focus on the question of the president's action in firing the special prosecutor because that's what I think is a key issue here. Judge, when president Nixon fired special prosecutor cox, did he violate the law or the constitution? 3:26:25 PM [Protesters in the background]. >> I know the regulation in place for Leon Jaworski after the firing. I'm not recalling the specifics of the cox regulation in place at the time. >> I'll tell you there were for cause restrictions in place at the time. Given that, do you think firing the special prosecutor violated the law or the constitution? >> If it violated the regulation, it violated the regulation. >> Would it have I'll have -- violated the constitution. What I'm getting at, are there these for-cause restrictions on the president's ability to fire the special counsel. >> The supreme court and the United States versus Richard Nixon analyzed the specific 3:27:25 PM regulation at issue in that case. Actually relied on the specific regulation and finding that the case was under the precise terms of the regulation in place at the time. The court analyzed that and really specific detail. Pointed out that so long -- [protesters in the background]. >> Let me be clear about the point I'm trying to get to. Your views about whether or not when president Nixon fired Archibald Cox, he obstructed justice or the firing itself violated the constitution. It's important for you to know your views on Nixon as well. I want to know what you think about the constitution and if it prohibits restrictions on the president's ability to fire a special prosecutor. >> My views are what the precedent says. In other words, I follow the 3:28:26 PM precedent. The precedent of the supreme court in U.S. V. Nixon case did apply that regulation -- >> Judge, that was unanimous? >> It was, 8-0. >> Are you aware of any justice questioning the decision? >> No. I've called it one of the four greatest moments in supreme court history, U.S. V. Nixon. >> You. Have that's what I want to get to. You in another context as we talked about yesterday in a roundtable in 1999 volunteered unprompted that maybe Nixon was wrongly decided. Do you think us V. Nixon was wrongly decided? >> I said it was one of the four greatest decisions and correct decisions in terms of the specific regulation at issue in the case, the court's holding in a criminal trial subpoena that the subpoena for the information, the tapes was enforceable in that context. 3:29:27 PM And that's what I said before publicly about the Nixon case. >> You would agree that it was correctly decided? Did I hear you right? >> Of course. When I say it's one -- when I say something is the greatest, that means I agree with it and the point was under the specific regulation at issue in that case, a crime trial subpoena for the information and it was a moment of judicial Independence, a moment where the court I think came together as unanimous opinion written by chief justice burger. That's an important moment in the court's history. >> So you'd agree that a court can order a president to produce records or ordered to testify in front of a grand jury? >> I'm not going to answer questions on how to apply U.S. V. Nixon. 3:30:28 PM
SENATE JUDICIARY COMMITTEE HEARING: BRETT KAVANAUGH NOMINATION - SIDE CAM 1 1400 - 1530
1330 KAVANAUGH HRG SIDE CAM 1 FS3 81 UNITED STATES SENATE COMMITTEE ON THE JUDICIARY HEARING: Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States (Day 3) Full Committee DATE: Thursday, September 6, 2018 TIME: 09:30 AM LOCATION: Hart Senate Office Building 216 PRESIDING: Chairman Charles Grassley INTRODUCERS: The Honorable Condoleezza Rice Former Secretary of State Senior Fellow at Hoover Institution Professor at Stanford University Stanford, CA The Honorable Rob Portman United States Senator State of Ohio Ms. Lisa S. Blatt Partner Arnold & Porter Washington, DC PANEL I The Honorable Brett M. Kavanaugh PANEL II Mr. Paul T. Moxley Chair American Bar Association Standing Committee on the Federal Judiciary Salt Lake City, UT Mr. John R. Tarpley Principal Evaluator American Bar Association Standing Committee on the Federal Judiciary Nashville, TN PANEL III MAJORITY Mr. Luke McCloud Former Law Clerk Associate Williams & Connolly LLP Washington, DC Ms. Louisa Garry Teacher Friends Academy Locust Valley, NY The Honorable Theodore B. Olson Partner Gibson Dunn & Crutcher Former Solicitor General United States Department of Justice Washington, DC Ms. Colleen E. Roh Sinzdak Former Student Senior Associate Hogan Lovells LLP Washington DC Professor Akhil Amar Sterling Professor of Law and Political Science Yale Law School New Haven, CT MINORITY: The Honorable Cedric Richmond U.S. Representative, Louisiana, 2nd District Chairman, Congressional Black Caucus Ms. Rochelle Garza Managing Attorney Garza & Garza Law Brownsville, TX Ms. Elizabeth Weintraub Advocacy Specialist Association of University Centers on Disabilities Silver Spring, MD Ms. Alicia Baker Indianapolis, IN Professor Melissa Murray Professor of Law New York University School of Law New York, NY PANEL IV MAJORITY: Mr. A.J. Kramer Federal Public Defender Office of the Federal Public Defender for the District of Columbia Washington, DC Ms. Rebecca Taibleson Former Law Clerk Foxpoint, WI Ms. Maureen E. Mahoney Former Deputy Solicitor General of the United States Washington, DC Mr. Kenneth Christmas Executive Vice President, Business & Legal Affairs Marvista Entertainment Los Angeles, CA MINORITY: Ms. Aalayah Eastmond Parkland, FL Mr. Jackson Corbin Hanover, PA Mr. Hunter Lachance Kennebunk, ME Ms. Melissa Smith Social Studies Teacher U.S. Grant Public High School Oklahoma City, OK PANEL V MAJORITY: Ms. Monica Mastal Real Estate Agent Washington, DC The Honorable Paul Clement Partner Kirkland & Ellis LLP Former Solicitor General United States Department of Justice Washington, DC Professor Adam White Executive Director The C. Boyden Gray Center for the Study of the Administrative State Antonin Scalia Law School George Mason University Hamilton, VA Professor Jennifer Mascott Former Law Clerk Assistant Professor of Law Antonin Scalia Law School George Mason University Arlington, VA MINORITY: Mr. John Dean Former Counsel to the President President Richard M. Nixon Professor Rebecca Ingber Associate Professor of Law Boston University School of Law Boston, MA Professor Lisa Heinzerling Justice William J. Brennan Jr. Professor of Law Georgetown University Law Center Washington, DC Professor Peter Shane Professor Law Moritz College of Law Ohio State University Columbus, OH LUNCH BREAK [1:58:29 PM] Supreme court justice. Sheldon Whitehouse is questioning Kavanaugh. >> -- Protection they feel you are owed. It's up to you do do that. >> I spoke to reporters at the direction and authorization of judge stark. >> You are citing the exact same words you answered me with beforehand. >> It's relevant to the answer of the question, if I could continue? >> What I would really like to get is an answer to the actual question I asked rather than a disquisition in the general topic area I asked. This is a very simple thing. You either will or will not or if you wish, this is -- you're welcome to say, look, I would like to take that under advisement and get back to you after some reflection and consultation, but our situation right now is that reporters may very well information about what you told them during the Starr Clinton investigation that they are unwilling to divulge now because you were a confidential source. Can you release them from that by simply saying here publicly, anybody I talked to, say what I said, it's not a problem. I don't need confidentiality anymore. >> Senator, if I could just get 30 seconds on this. If that's okay. >> 30 responsive seconds, I'm all for that. Go for it. >> Okay, I spoke to the reporters at the direction and authorization of judge Starr and therefore judge Starr would be the one who would be part of that process. I was not acting on my own. WHITE HOUSE >> No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe confidentiality. Starr's name has not come up. KAVANAUGH >> I was in turn acting as part of that office, and therefore I guess -- >> But it's yours to divulge. >> It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. [2:00:31 PM] KAVANAUGH I talked, of course on the record. WHITEHOUSE >> The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law? On I the general topic area I asked. This is a very simple thing. You either will or will not or if you wish, this is -- you're welcome to say, look, I would like to take that under advisement and get back to you after some reflection and consultation, but our situation right now is that reporters may very well information about what you told them during the Starr Clinton investigation that they are unwilling to divulge now because you were a confidential source. Can you release them from that by simply saying here publicly, anybody I talked to, say what I said, it's not a problem. I don't need confidentiality anymore. KAVANAUGH >> Senator, if I could just get 30 seconds on this. If that's okay. WHITE HOUSE >> 30 responsive seconds, I'm all for that. Go for it. KAVANAUGH >> Okay, I spoke to the reporters at the direction and authorization of judge Starr and therefore judge Starr would be the one who would be part of that process. I was not acting on my own. 2:00:02 PM WHITEHOUSE >> No. No. Nope, that is not the way that reporters look at it. They look at it as you are the source, you are the one to whom they owe confidentiality. Starr's name has not come up. KAVANAUGH >> I was in turn acting as part of that office, and therefore I guess -- >> But it's yours to divulge. >> It's because I can't do that or don't think I should do that isn't a matter of appropriateness given I was working for someone else who was running the office. I talked, of course on the record. >> The answer is you're unwilling to do it. I'll move on. You have said today, you have never taken a position on the constitutionality of indicting the president. Let me ask you, has there ever been any statutory law on presidential immunity from an indictment or from due process of law? >> There's been justice department -- 2:01:02 PM >> Statutory law. Is there a statute that limited the protected the president against due process of law. >> There's been justice department law, but -- >> Justice department is not a law-making body, is it? >> Oh, I think it does -- I guess the term law encompasses regulations. >> Directive to the department's own employees, correct? That's what you're talking about. >> Well, that's encompassed, as I think about it, within the concept of law. >> Well, if you're going to go to the general concept of law, perhaps, but there is no law law that congress has ever passed that protects a president from either indictment or due process of law, correct? >> Congress has never passed something. The justice department -- >> Has an opinion about it, I understand that. >> Which is binding. >> On the justice department. So if, as a matter of law, a 2:02:07 PM sitting president cannot be indicted, that must be constitutional law, since there is no statutory law, as a proposition of logic, is that not correct? >> That is not correct, as I see it, because if the justice department has law that binds the justice department, that's another source of law as well. >> Okay. So let's go back to Georgetown law journal, 1998. And a conference you attended. And you spoke at it. And the panel that you were on was asked the question, who on the panel believes as a matter of law that a sitting president cannot be indicted during the term of his office. That's you and your hand shot 2:03:08 PM up. And I think you probably have seen the film clip of that because it's been posted already. Did you mean as a matter of law that olc guidance when you said that? >> I know that right before the passage you're reading, I said there's a lurking constitutional question. >> Bingo. >> The fact that I said that judges that I did not have a position on the constitution -- >> Although you shot your hand up when the question as a matter of law, a sitting president cannot be indicted came up, and it seems to me there are really only two kinds of law unless you're really stretching the envelope here. One is laws that congress passes and the other is laws that are founded in the constitution. And internal policy directive within the department of justice, I think it's a real stretch to call that law. >> Well, I appreciate that, senator, but it has been the 2:04:08 PM long-standing justice department position -- >> Policy, yes. >> And right before -- >> Is that what you meant when you put your hand up, do you know? >> That was 20 years ago, I don't know. But I know right -- >> Here's why it's important. You have been telling us I have never taken a position to say this was a constitutional principle. I have never taken a position on the constitution on that question. I did not take a position on constitutionality, period. I have never taken a position on constitutionality of indictment. Those are all things you have said during the course of this hearing. It looks to me like that's a bit of a conversion. >> Right before that, though, senator, to be fair to me, I did say there's a lurking constitutional question which implies -- >> Then you were asked to answer that question by putting your hand up, and you put your hand up saying aye, so it seems to me you answered your question by putting your hand up the way you did. >> The question wasn't the 2:05:09 PM constitution. If question was law. >> That's what I'm saying you're saying. You're saying what you meant was the olc policy position when you answered a question about law. >> What I said is I don't know what I was thinking in a panel 20 years ago, but I do know having looked at it that the question was about law, that the justice department position has been consistent for 45 years. >> As a matter of constitutional law. Right? The justice department position reflects a view of constitutional law. >> But it's an interpretation binding on everyone in the justice department, as I understand it. >> Because they're employees of the department of justice. In the same way that you can't steal the computer or you can't, you know, bring a pet into your office, whatever rules there might be. >> Well, I think internal regulations are still law. >> Okay. As long as it's your position that's what you meant by matter of law. >> Just to make it clear, I said I don't know what I meant. When I look at it now, that's what I think. >> So let's go on to recusal. 2:06:12 PM And let me -- there's a case that is somewhat on point on all of this. It's the kaperin case out of West Virginia. As you'll recall, it was a civil case, right? >> Yes. >> And it came to the supreme court because there was an objection that a judge should not sit basically the problem should not sit in his own cause, so to speak. And the problem was that one of the litigants had received three -- the judge had received $3 million in political support from one of the litigants. Is that the fact pattern, correct? >> I believe that's correct, senator. >> And the standard that the court came up with was whether that judge had -- whether that donor, that party, had a significant and disproportionate influence -- ooh, we didn't spell influence right, in placing the judge on the case. Correct? >> I believe so. 2:07:13 PM >> And so justice Kennedy -- >> The justice Kennedy opinion. >> Decided the constitution requires recusal. >> Mm-hmm. >> If the constitution requires recusal of a judge who was the beneficiary of a $3 million piece of political support to help him get into office, wasn't it follow per force that the person who actually appointed the judge would be in a similar or stronger position of significant and disproportionate influence? >> Senator, the question in the Caperton case, as I said, was because of the amount of money, the financial interest, which is a whole separate branch. >> Correct, which would have a dissignificant and disproportionate influence on the judge becoming a judge, right? That's what the connection was. The spending of money by the party helped make the judge the judge. 2:08:13 PM In this case, if a criminal matter involving president trump came before you, he wouldn't have just spent $3 million to make you a judge. He would have flat out made you the judge, 100% finito, right? >> Senator, the question of recusal is something that is governed by precedent, governed by rules. One of the underappreciated aspects of recusal is whenever I have had a significant question of recusal as a judge on the D.C. Circuit, I have consulted with colleagues and so too they have consulted with me when they had their own questions. That's part of the process. >> Isn't actually the 100% responsibility for direct appointment more significant in terms of influence than simply making a big political contribution to a judge? That's like 100% responsibility. Appointed, period, done. >> Well, just on the -- I don't mean to quibble, but on the premise of your question, the senate obviously, it's a shared 2:09:13 PM responsibility, the president and senate participate in the supreme court confirmation process. Appointment process. >> You were very clear yesterday in our discussion it was the president of the United States who appointed you. And this is about that. This is about how you get to the seat, and you got appointed by the president. Would that not pertain as a significant influence? I mean, what possible greater influence could there be on who is in the seat that you're nominated to than the nomination of the president to that seat? >> So two points if I could, senator. First, I have said already. I don't believe it appropriate in this context to make decisions and recusal is a decision on a case, so I don't think it's appropriate. >> If it's not appropriate, let me move on with something else because let me ask you about the 2:10:14 PM question of presidential shall we say conflicts with prosecutors. When you were in the Starr prosecution effort, you were exposed to this contest with the Clinton white house. And you described the Clinton white house as running a, and I'm quoting you here, prejudicially approved smear campaign was one phrase you used. A disgraceful effort to undermine the rule of law was another phrase you used. An episode that will forever stand as a dark chapter in American history. >> That was about something different. >> And you prejudicially approved smear campaign against Starr was what the topic was. You then said in a later memo that the president has tried to disgrace Starr and his office 2:11:14 PM with a sustained propaganda campaign that would make Nixon blush, and he should be forced to account for that. Have your views of presidential interference or smearing of independent or special counsel changed since you made those statements? >> Those comments were in a memo written, as I recall -- >> Two memos. But close enough, yeah. >> Well, the one that I'm remembering, written late at night after an emotional meeting in the office dashed off and some of the language in that, as I think I told you, or told some of the senators in individual meetings, was heated. And I understand that. But that was my memo at the time. I think I have been clear, I don't want to talk about current events because I don't think -- I'm a sitting judge as well as a nominee. I don't think I should talk 2:12:15 PM about current events. >> How about the guy, the guy who was outraged at being on the receiving end of a smear campaign. Does that guy still exist or is he long gone? >> Well, that's -- that's what I wrote at the time, how I felt one night after a meeting we had in August of 1998, I believe, at least the memo I'm remembering. >> Last topic because my time is getting short here. The hypothetical problem that I have has to do with an appellate court which makes a finding of fact. Asserts a proposition of fact to be true. And upon that proposition, hangs the decision that it reaches. And the question is, what happens when that proposition of fact actually in reality, you have referenced the real world so often, actually in reality 2:13:16 PM turns out not to be true? What is the obligation of an appellate court if it has hung a decision on a proposition of fact and then the proposition of fact turns out not to be true? Does it have any obligation to go back and try to clean up that discrepancy, to clean up that mess? >> I think, senator, it's probably hard to answer that question in the abstract because -- >> But if I give you specifics, then you'll say you can't answer that because that would be talking about a case. So I'm kind of in a quandary here with you. >> I was going to biv you a couple thoughts, which I think that would be wrapped up in the question of precedent and stare decisis, and one of the things you could look at, one of the factors you could look at, how wrong was the decision, and if it's based on an erroneous factual premise, that is clearly one of the factors you would -- >> You would look at -- >> Mistake of history. Sometimes there have been cases where there have been mistakes of history in decisions, 2:14:17 PM mistakes of fact. >> Quickly, the two examples that come ready to mind, one is Shelby county. In which the court said in looking at whether there was still any kind of institutional racism in the preclearance states they needed to worry about, nope, the quote, country has changed and current conditions, to use their phrase, are different. First, where do you suppose the five justices who made that decision got expertise in vestigial state racism to make that determination at all? >> I can't comment on the decision other than to say it's a precedent. I understand the point you're making about -- >> Because you do know that since then, both North Carolina was found to have targeted minority votes with, quote, surgical precision, which is pretty rough phrase. And Texas got after it so frequently that a federal court finally said, look, we think there's a penchant for 2:15:17 PM discrimination here. So if you have got the five judges saying that it's over in these states and then it turns out it really isn't over, that there's actually still surgical precision targeted of minority voters and there's a penchant for discrimination in the Texas state government, that ought to be something that might cause some reconsideration of the Shelby holding, oughtant it? >> So three things on that. I think, senator, one, I think the case did not strike down preclearances opposed to saying the formula needed -- >> De facto it did. Preclearance ended in all those states with that decision. >> I understand that. >> So I have one minute left. Let me jump to the other example. Because I think it's an important one and my time is running out. That is citizens united. Citizens united took on the proposition that the unlimited spending that it authorized by people capable of unlimited spending would be both 2:16:20 PM transparent and independent. Correct? >> The court upheld the disclosure requirements in that case, if that's the question. >> It said more than that. It said it's the transparency and the Independence of the spending that it authorized that were the guardians against the corruption. >> Right. So it wasn't contributions to parties or candidates, correct. >> So the first amendment ends where efforts to corrupt begin, correct? You don't have a first amendment right to corrupt your government. KAVANAUGH >> The supreme court has relied on corruption in the appearance of corruption as part of the test, and it's -- you know this very well. >> In order to fend off the argument that big money corrupts and absolute money corrupts absolutely, they said no because there's going to be independents and transparency. In fact, if I remember correctly, they said -- I don't have it in front of me, oh, here 2:17:21 PM we go. The separation between candidates and independent expenditures negates the possibility of corruption. So if they're wrong factually about this spending being transparent, and we know that they are from what we have seen since then, and if they're wrong factually about the Independence of this spending and we know they are from actual events that have happened since then, then that strikes a pretty hard blow against the logic of citizens united, does it not? >> So citizens united, as you know, is a precedent of the supreme court, so entitled the respect as a matter of stare decisis. As you know and I would just reiterate, if someone wants to challenge that decision, they -- one of the things that anyone can raise about any case is that it's based on a mistaken premise or mistaken factual premises, and that's the kind of things courts are open to hearing. >> My time has expired. I thank the chairman for the 2:18:23 PM indulgence of the extra minute. >> A couple things. First, I would note -- BREAK IN CNN COVERAGE. NO OTHER CABLE NEWS AIRING RIGHT NOW. 2:19:25 PM ? Experience amazing at your Lexus dealer. >> Dana: Back to the hearing. The >> It was a different aspect of that investigation. >> Senator Cruz. CRUZ >> Thank you, Mr. Chairman, I want to note at outset, senator from Rhode Island took his questioning as an opportunity to inpune residents of north Carolina and Texas as having a pension for bigotry and I appreciate the compassion from the senator from Rhode Island. I will point out, let you rise to the defense of your own state and point out in the state of Texas, that we had just a few years back three statewide elected African American officials, all Republican, I might note, I believe at the time was the most of any state 2:20:26 PM in the union and I think it is the case Rhode Island has none. [SHOUTING in the background] >> For the record, I apologize to my colleague if he takes umbridge about reference to Texas, this was in Texas referring to the decision-makers in that case. >> Senator, you have 30 additional seconds. CRUZ >> Senator: Judge Kavanaugh, yesterday you had some discussion with senator Lee about what it means to be a textualist and I want to go back and revisit that conversation and ask, for someone at home, who is watching this, why should it matter to them if a judge is a textualist? What difference does it make to somebody not involved with the 2:21:27 PM supreme court? KAVANAUGH >> Judge Kavanaugh: Senator, goes to constitution and the system the framers designed with a legislative branch and executive branch and judicial branch that were all separate, as was said in federalist 78, the judiciary does not exercise will, but it exercises judgment. The policy decisions are made by the legislative branch, with the president, of course, in terms of signing legislation, so the house issue the senate and the president. The president enforces federal law, comes to the judiciary. When we interpret a statute, if we, as judges must adhere to the text of the statute, why is that? Two reasons, I think are paramount, the first is the statute as written is what was passed as a formal matter by the congress, by both houses of the congress, signed by the president into law. 2:22:28 PM A formal matter, that is the law. So if we're going to exercise judgment, not will, we need to adhere to the law as passed and the law as passed reflected in written words that were, went through both houses and signed by the president. Secondly, in supporting that, as practical matter, legislation is a compromise. And within the senate, within the house, with the president, as well, lots of compromises are inherent in any legislative product, that is what my experience shows, that is what I know your experience shows, as well, senator. So when a case comes to court, statute comes to court, you know, we upset the compromise that you so carefully reached and where people might have given up this for that in terms of the legislative final language and we then insert ourselves after the fact into the process and upset the compromise, if we don't stick to 2:23:29 PM the actual words of the text of the statute as passed by congress. So as both a formal matter of what the law is and as a practical matter of not inserting ourselves into the legislative process and upsetting the legislative process, it is critical that judges stick to the law, as written, text of statute as passed by congress and signed by the president. >> Senator: What in your view is the proper role, if any, for legislative history in statutory adjudication? Different justices have different views on this. >> Judge Kavanaugh: I think all judges are much more skeptical of legislative history than they once were, that's the influence, as you know, senator, largely of justice Scalia, very mainstream now to be skeptical of legislative history and again, two reasons support that skepticism, if not outright refusal to use it. The first is that the 2:24:30 PM legislative history, the committee reports or the floor statements made by individual members on floor of the house or senate are not part of the law as passed and that is important, it would be very easy, I said in my articles, for congress, if paragraph or page or more in legislative history in committee report that was really important, put it into the law, put it into the introduction of the law, have it be part of the law that is passed. When it is a committee report, might be seen by one committee and one house, might not have been seen by the other house, the president, of course, is part of the process, might never have seen it. To rely on that is to upset the formal process by which law is enacted in the United States. So, too, again, the legislative history, the committee report, is not part of the compromise that's reached between the house and the senate and the president, at least not ordinarily, allowing one committee, for example, or one member to go down to the floor 2:25:30 PM of the house or senate and to say something that will shape subsequent judicial interpretation and upset the careful compromise that is reflected in the tax that is passed by the senate, passed by the house and signed by the president. Again, both formal and practical reasons why skepticism of legislative histories warranted and why justice Scalia able to persuade justices across the spectrum, judges across the spectrum, legislative histories useful for understanding why something came to be, but not as tool for upsetting or changing your interpretation of the words of the statute. >> Senator: Also, yesterday when you were talking with senator Lee, I believe you described yourself as an originalist. Can you explain what that means to you, what you mean by that? And why, again, people at home should care, why that should 2:26:30 PM matter if a judge or justice is an originalist? >> Judge Kavanaugh: By originalist, it is important to be clear, there are different things people hear when they hear the term originalist. There was an old school of origin intent, subjective intention of the drafters or ratifiers and that is not really the proper approach in my view, for similar reasons to the discussion of legislative history with statutes. By originalist, what I've meant is original public meaning or the constitutional textualism is the term I use that refers to the same concept, which is pay attention to the words of the constitution. The constitution is article 6 of the constitution makes clear, is law. It is not aspirational principles, it is law, the supreme law of the land. In that sense, it's superior to statutes, but law-like just like statutes, superior law. The constitution itself 2:27:31 PM including the amendments, original constitution was itself a compromise, as law and it is a compromise reached Philadelphia in the summer of 1787 and of course Madison's notes and history that shows all the compromises were reached, probably most famous compromise is the compromise that allows for representation according to population in the house, representation according to state and the senate, the Connecticut compromise as it is often referred to. It is important for judges again, not to upset the formal law that is written in the constitution or to upset the compromises reached either in the original constitution or in the amendments, now one key thing to add to that is precedent is part of the constitutional interpretation, as well, as federalist 78 makes clear and judicial power clause of article 3 makes clear, so a system of precedent is built into how judges interpret the constitution and constitutional 2:28:31 PM cases on an ongoing basis, that is part of the proper mode of constitutional interpretation and important system of precedent. >> Senator: Thank you. Let's shift back to the topic you and I discussed yesterday, religious liberty, a topic of consideration interest and importance to a great many Americans. In private practice, you wrote an amicus brief in the Santa Fe case for congressmen Steve Largin and J.C. Watts. Can you describe what that case was about and your representation there? >> Judge Kavanaugh: I will. Attorney general for the state of Texas and did outstanding job. I remember participating in the moot court as the senator recalled. Didn't turn out too well, judge. You did an excellent job, senator, I remember being there. The case involved prayer before 2:29:33 PM a football game. The supreme court had number of cases on religious expression in schools. School sponsored prayer at school events is often impermissible, Lee versus Wiseman. The same time, when students want to express themselves in some way, t-shirt, clothing or saying their own prayer, say before a football game or other events, the students want to say a prayer for themselves or there is an open forum, students are allowed to say whatever they want and one student chooses to talk about religion or say a prayer, that's on the generally on the free speech side of the house, freedom of religion side of the house of the supreme court precedent, which would protect religious liberty of the 2:30:36 PM individual in that circumstance. The Santa fe case came, I think senator Cornyn would say, well, senator Cornyn would say on free speech freedom of religion side of the house. The supreme court thought the school was too involved, I would say, in the prayer opportunity in that case and thus attributed prayer in that case to the school and the supreme court therefore said that the prayer in that case was impermissible. It was very fact-specific, based on how some of the actual prayers had gone down in the school district there. So it was really in the gray area on the facts between the two principles, freedom of speech and freedom of religion for individuals, on the one hand, no school-sponsored prayer, on the other and those two principles are part of the supreme court precedent that I think the courts have applied for a long time now. >> Senator: So what led you to want to take on that 2:31:37 PM representation in the amicus brief? >> Judge Kavanaugh: I think at that time I was asked to work on several cases involving religious liberty and religious speech. I also did a case in amicus in the good news club case. That was a case where a school district allowed use of the gymnasium auditorium area after school for whatever group from the community wanted to use the facility and they would allow everyone to come in, you know, boy scouts, the -- any community group to come in, but didn't allow religious groups to come in. That seemed to be discrimination against religion, discrimination against religious people, religious speech. I was asked to do a amicus brief that made the point religious people, religious speakers and 2:32:38 PM speech is entitled to its place on equal basis in the public square, including, in this case, the school auditorium or gymnasium. The supreme court agreed with that principle in that case, stating discrimination against religion in public facilities and in the nature of what was going on in that case was impermissible and violation of freedom of speech, freedom of religion and therefore unconstitutional. Those cases are important, it is important that the -- to recognize constitution, first amendment of the constitution, as well as many statutes, of course, protect religious liberty in the United States, religious freedom in the united States and I said in some of my opinions, we're all equally American, no matter what religion we are or no religion at all, religious speakers and a right to their place in the public square. >> Senator: Another case you 2:33:38 PM were involved in as a judge, you wrote dissent from denial of rehearing on bonds in the priest for life case. Can you tell the committee about that case and your opinion there? >> Judge Kavanaugh: That was a group that was being forced to provide certain kind of health coverage over their religious objection to their employees and under the religious freedom restoration act, the question was first was this substantial burden on the religious exercise and it seemed to me clearly it was. It was technical matter of filling out a form, in that case, they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were as religious matter objected to. Second question was, did the government have a compelling interest, nonetheless in providing the coverage to the 2:34:40 PM employees and applying the governing supreme court precedent from hobby lobby, I said the answer was yes, the government had compelling interest following justice Kennedy opinion and hobby lobby said the government did have interest in ensuring access and came down to least restrictive means prong of the restoration act and that prong was the act to my mind is an opportunity to see, is there a win/win in some respects? In other words, government interests in ensuring healthcare coverage, can that be provided without doing on the backs of the religious objector? That is what the court is looking for. The professor had written about. That case, it seemed to me the governor had avenues to ensure that the coverage was provided without doing so on the backs of the religious objectors and I so ruled following the supreme court precedent in hobby lobby and subsequent case Wheaton 2:35:41 PM college, they had an order I followed and seemed to me to dictate the result that I identified in the priest for life decent. Another case, to reiterate, overwhelmingly passed by congress in the early 1990 and signed by president Clinton and was important addition to the protection of religious freedom in the United States to supplement the constitutional protection that exists in the free exercise clause. >> Senator: Well, and I would note much like yesterday, when we discussed your pro Bono representation of the synagogue that priest for life using some on the democratic aisle paradigm suggested little guy and big guy, little guy against almost all powerful federal government and in that opinion, presumably because you felt the law dictated it, you sided with the priest for life in that 2:36:42 PM decision. >> Judge Kavanaugh: That's correct, senator, I think a lot of religious freedom cases, the supreme courts had, that has been the case. There was a prisoner, opinion written by justice Alito, I believe, unanimous, prisoners being Muslim prisoner being forced to shave his beard in violation of religious beliefs. Justice Alito wrote opinion for the supreme court saying that was substantial burden on his religion and was not necessary and that is just another example of how religious liberty protects all of us, no matter our religious briefs, that is principle of both of the constitution and religious freedom restoration act. >> Senator: Another case you were involved in that stood out to me personally, just being Cuban American, is that as I understand it, in November 1999, when Elian Gonzalez came to this 2:38:46 PM a question under the due process clause. And interestingly, it seemed that the ins had not -- was interpreting the refugee act in way that seemed stretch of the statutory language and was not some kind of formal regulation, so the question of Chevron deference to informal agency position was question in the case and I wrote the circ position and petition saying that the agency was stretching the language of the statute beyond recognition and doing so in way that was entitled to no deference because it was not in any kind of formal regulation, which years later turns out to be a position supreme court has agreed with in terms of administrative law, but in that case, I got involved because I was asked to get involved on moment's notice in case of purposes for people who needed help -- >> Senator: Let me ask one final 2:39:47 PM question, you've been nominated to the highest court in the land. As you know, there is another highest court in the land, that is the basketball court, atop the U.S. Supreme court courtroom and I believe no sitting justice has played regularly there since justice Thomas many years ago when he was a much younger justice. If you are confirmed, do you intend to break that tradition and return to having a justice play on the highest court in the land? >> Judge Kavanaugh: Well, I do, if fortunate enough to be confirmed justice Thomas did at some point get injured, I hope that precedent is not one I would follow, yes, indeed, senator. Thank you. >> Senator: Excellent, glad to hear it. GRASSLEY >> Before I call on senator -- BREAK IN COVERAGE / NO CABLE NEWS AIRING HEARING 14:42 KLOBUCHAR QUESTIONING KAVANAUGH GAP IN CC 2:47:36 PM KLOBUCHAR >> Senator: I'm going back to 2009, which isn't that long ago and the university of Minnesota law review and that is where you said we should not burden a sitting president with civil suits, criminal investigations, or criminal prosecution, and when you and I talked yesterday, you said that congress could still pursue an impeachment proceeding, right? KAVANAUGH >> Judge Kavanaugh: Yes, impeachment mechanism. KLOBUCHAR >> Senator: Your view back then, you wouldn't comment on it. Your view when you wrote this was that -- well, your view now is that congress should be able to pursue impeachment? KAVANAUGH >> Judge Kavanaugh: Well, the constitution -- KLOBUCHAR >> Jessica: Yes. KAVANAUGH >> Judge Kavanaugh: Specifies impeachment as tool in the constitution itself. KLOBUCHAR >> Senator: Go back to when you wrote this, not hypothetical, when you wrote this in 2009, you were thinking about it, did you think then and this is what you meant, that a president shouldn't have to be 2:48:37 PM investigated? You said it, right? >> Judge Kavanaugh: Well, the context there, I believe, senator, was talking about civil suits or criminal investigations or criminal lawsuits and it was not my position on the constitutionality, it was something for congress to consider and the idea was reflecting on my experience after September 11th and what we could do to make the presidency the most effective for the American people. >> Senator: I'm trying to understand in practicality when you look at last impeachment proceedings how you would do it if you didn't have an investigation, other ones used independent counsel, special counsel and if you don't have that, don't you effectively eviscerate the ich -- impeachment part of the constitution? >> Judge Kavanaugh: Not at all. >> Senator: Why would we want to foreclose our ability to use special counsel or independent 2:49:37 PM counsel? >> Judge Kavanaugh: So that is your decision ultimately in congress to decide, that is one view you just articulated and of course congress is not enacted any special deferral for civil suit, congress is stuck with Jones V. Clinton result from that case and of course stuck with the existing system of special counsels. >> Senator: To get back to where you were in 2009 when you wrote this as opposed to using a hypothetical. So we said several times here no one is above the law, I said that in my opening statement, but when you said this, you men no one is temporarily above the law, if a sitting president, she was in office and there was some crime committed, murder, white-collar crime, anything, you are say nothing this article, she shoot be subject to criminal prosecution? >> Judge Kavanaugh: That would 2:50:38 PM be issue for congress to consider if it wanted to pursue temporary deferral. There are statutes for members of the military, service members serving overseas, I think president Clinton in Clinton V Jones case cited that as something statutory deferral, not immunity, important to establish immunity from deferral. But timing of when a particular litigation will occur. I wouldn't call that above the call, I would call that a timing question. >> Senator: Okay, that would be a long time if a president was serving for four years or eight years, given and again, I'm reading the words, we should not burden sitting president with civil suits, criminal investigation or criminal prosecution, so it feels to me that was your view when you wrote that. >> Judge Kavanaugh: Well, it was an idea for congress to consider along with many other ideas about judicial confirmations and war powers and all reflecting, 2:51:39 PM that was reflecting on idea congress could consider, whole point was to make -- help the country do better based on my observations from five and a half years working in a white house where during war, during wartime. The >> Senator: Okay. Another topic, follow-up from senator Harris' questions from last night. She asked you questions about voting rights and ranking member of the rules committee and as she noted, many states have restricted access to voting since the supreme court's decision in Shelby county, struck down key provision of voting rights act. Brennan center, 23 states have more restricted voting laws than in 2010. Many laws challenged in court, some overturned, so here is one more question on this. Should courts consider these widespread efforts to restrict voting, what has been going on 2:52:40 PM since 2010, when ruling on challenges to statutes that effect the right to vote? >> Judge Kavanaugh: Well, I think in any particular case, senator, you'd want to see what the record established in the case was and the record could include what is going on in that particular state and I can imagine a factual record where that would include also potentially what is going on in other states, as well. >> Senator: Thank you. Thanks. That is by Brennan center and other nonpartisan organizations have found no evidence of widespread voter fraud and study by "Washington post" found only 31 credible instances of fraud from 2000 to 2014 out of more than 1 billion ballots cast. Do you believe there is evidence of voter fraud, do you believe I know you told senator Harris you watch, read some election law blogs, sitting here last night, and so have you read one of the articles on widespread voter fraud on one of the blogs you 2:53:42 PM mentioned? I'm just concerned because that is out there, I would think that is something that could be looked at? >> Judge Kavanaugh: Look at professor hassan's election law blog and that is one of the ones that I've looked at, other blogs, as well, and there is discussion of this issue and I would want as a sitting judge, want to see a record before me of what is going on in a particular case. I hesitate to opine on something I read in a law review article, I think you have a better sense of what is going on there, I would want a record to determine what the evidence in that particular case was. >> Senator: Okay. I want to turn now to affirmative action and senator booker raised these questions late last night. In a speech at notre dame you discussed long-standing exception, end quote, to "Basic equal protection right not to be 2:54:42 PM treated differently by government on account of your race," and summarize court debate on this issue and remarked on what basis is the court making those decisions, is there something in the text of the constitution that tells us one is good enough and the other is not good enough, not really. Again, this is common law judging to define the contours of the exception to the institutional right. What did you mean by that? >> Judge Kavanaugh: I meant in many areas of constitutional law, we have free speech rights, we have exceptions, analyzed usually talking about under strict jut nee, talked about the second amendment, how the second amendment right and so too in 14th amendment, equal protection context, what kinds of programs are permissible, consistent with equal protection right and the precedent is critical on this, precedent built up, means 2:55:44 PM FOX NEWS BREAKS FOR COMMERCIAL/ NO OTHER CABLE NEWS COVERING 2:57:03 PM >> Now back to the hearing. Amy klobuchar questioning. KAVANAUGH >> My note in that case, as I understand it was rooted in supreme court precedent, the krosen case. And krosen is where the court invalidated a Richmond contracting program, as I recall, and so that precedent made clear what conditions need to be satisfied before a racial -- a contracting program of that kind could be sustained consistent with the constitution and the analysis that we went through set -- suggested that at least as it was being applied, as I recall, the federal program ran afoul of the supreme court press department supplied in the krosen case so I was giving advice on how it would fit in 2:58:05 PM the krosen case. That's my best understanding. I haven't gone back to restudy it. >> Maybe we can get that in writing at some point if you want to look back at it. We've witnessed unprecedented attacks on journalists the past several months. This should be concerning because journalism is part of our democracy. My dad was a journalist his entire life. He wrote a blog. He's 90. You probably didn't read that one. In "New York Times," the court issues a landmark ruling for protections for the press when newspapers report on public officials they can say what they want unless it's untrue with actual malice. 2:59:05 PM You believe public officials could sue the media under any standard less demanding than actual malice and can you explain what that standard means to you. >> The supreme court has elaborated on and applied that standard repeatedly over time. I have, too, as a lower court judge. So that precedent is now been applied over and over again. I'm not aware of much effort to deviate from that standard. Interestingly in "New York Times" versus Sullivan, in the course of that opinion, the court said the sedition act of 1790 had been overturned -- >> We're going to continue following Brett Kavanaugh's confirmation hearing. It's time for "Shepard Smith reporting." I'm Dana. Here's shep. 3:00:10 PM >> Shepard: I Shepard Smith in New York. We're going right back to the hearings in just a moment. 3:02:05 PM The hearings for judge Kavanaugh continue on capitol hill. More news as it breaks. Now back to Washington. >> The relationships of reporters and their sources. Again, the criminal civil divide there is something that I think has been a part of the case law in the past where the criminal context has been deemed in some cases sufficiently compelling. But that is -- set forth part of the reporter's privilege and the relationship with confidential services in the role of the reporter in bringing light to democracy. >> Thank you. GRASSLEY >> I'd like to note we've had good luck in confirming this week eight federal judges to lifetime appointments. [Protesters in background]. 3:03:13 PM Eight federal judges, lifetime appointments this week. Last week we did seven judges, 12 were confirmed without any objection from Democrats, and so we've had a pretty good record of being able to show that you don't have anything to fear from lifetime appointments for federal judges like we've heard a big issue today. Go ahead. SASSE >> Thank you, Mr. Chairman. Judge, welcome back. Congratulations on your last day of interviewing in your life. I'd like to talk about precedent. You've been a law professor. How long? >> I started in 2007, the first year. >> Okay. Let's pretend you're a sixth grade civics teacher for our 20 minutes together instead of law professor. Precedence is important but I don't think the -- it's not 3:04:15 PM something the American people know and it's something that maybe we can benefit from. Has the supreme court ever made a mistake? >> The supreme court has made some major mistakes at times. Dread Scott, good example. >> How do you know when you have a mistake? >> Sometimes you know right away. I think in those cases with the dissents written in those cases, those dissenters knew right away. I think they were mistakes right away. Plessy versus Ferguson was right. >> What was the ruling count, do you remember? The vote? >> There was one dissenter, justice Harlan. He was the only dissenter in that case. >> Okay. It's so close to McCain's event that I know we shouldn't be joking right now, but I want to talk about lunch. Republican senators have lunch together three times a week. When we do, if somebody's phone 3:05:16 PM goes off, it was always John McCain's. He wouldn't know it came on full volume 10. It was like a ghost of lunches past. You wrote a really important article in catholic law review, the ten principles of good umpiring. It wasn't about you as basketball coach. It was about the job of a judge. I'm going to speed through them. I'm oversimplifying, but your top ten list was, if you're an umpire, you can't be a part son. You have no rooting interests, no fan favorites. Number 2, the rules have to exist before the game. Number 3, apply the rules consistently. 4, can't remakes the rules on your preferences. [Protesters in background]. >> It may be case that the NFL decides that a targeting penalty doesn't work. Number 5, you have to have 3:06:17 PM backbone or courage. Number 6, tune out the crowd. Number 7, an open mind. You think you know what case is coming before you and people may present arguments different than thought. Number 8, you need the demeanor and temperament. Number 9, you have to work with your colleagues and number 10, you have to be goods at explaining. Rule number 2, the rules have to exist before the game. You go from a paragraph by paragraph structure. You pause and have a long 2 B and you explain about precedent. Can you give us a 60 or 90-second view about how precedent relates to having rules of the game before the game? >> Yes. Precedent is important for stability and predictability. So to know what the rules are ahead of time is important for good judging and for good umpiring and to do it consistently with how it's been done before is part of the system of precedent. The point is when the rules are set ahead of time by the 3:07:18 PM precedent or by the law, when you're not making up the rules as you go along in the heat of the moment, which will seem unfair, which will seem like you're a partisan because you're going to seem like you're favoring one side or the other because of an allegiance to that team or favoritism. That's why in sports, as you know well, senator, because I know of your devotion to sports, there's a lot of detailed rules set forth about how the game is played and referees and umpires are supposed to call the game. That's to ensure that there is predictability, stability that the players can rely on that and that it's overall fairness. Due process is not a word used often in a refereeing contest but it is. Notice about what the rules are ahead of time so everyone has 3:08:19 PM confidence in the fairness of the game and that the umpiring, which is critical for the outcome of many games is done in a fair and impartial way. So facilitates I'm -- impartiality. The analogy is very strong, frankly. That's why I wrote that article. The chief justice that talked about the judge's umpire, because I coach and play a lot of sports. I thought about the analogy. I thought there's a lot of parallels between being a good judge and a good umpire. I'm a connoisseur of umpiring. >> I want to jump in here. I agree the analogy is strong and tight but it's imperfect. >> Yes. >> In a football G everything that happens is 3:09:23 PM predictable. Woody Hayes comes off the sideline and punches a player in the face. It was new and still nonparticipation. Coach can't play. Another 12th player can't play. There was a rule that spoke to that. What you're doing, it's not as defined. The cases that may originate are not as perfectly cabinable -- that's a word -- as in football what might help. Help me insurance the distinction of judging, umpiring and the supreme court made decisions in the past. It's not the case that every decision the supreme court has ever made is right and now a part of the permanent rule book. You sometimes have to throw them out. So sixth grade level, help us understand how from 1896 to 1954 you've repeatedly called brown the greatest moment in supreme court history. It's one of the greatest moments in American history as well. In those 58 years, the court was wrong for that whole time and yet the way we think about 3:10:23 PM precedent, we might have or six graders thinking of every decision as right. How do you reconcile the two? KAVANAUGH >> The factors that the supreme court looks at, the decisions not just wrong but really wrong. What the real world consequences are, including workability and reliance. One of the genius moves Thurgood Marshall, he started litigating case by case -- he knew plesse was wrong. He knew the way to bring about the change was to create a body of law that undermines the foundations of plessy. He started litigating cases and showing case by case that separate was not really equal. He did it in cases like Sweatt V. Painter 3:11:24 PM and many other cases. He built up a record over time that by the time he went to the supreme court to argue brown versus board of education, he had shown its inconsistency with the law that it built up around it. For those that weren't otherwise as quickly on board with the idea that plessy was wrong the day it was decided, he was take nothing changes. SASSE >> I want to interrupt you. I want you to keep coming forward. What you're describing right here in the new documentary Marshall, every mom and dad ought to show their kids, my kids and I watched this before it was public. Everybody should watch "The marshal." Continue that, please. KAVANAUGH >> I think that by the time it got to brown versus board of education, that the foundations 3:12:25 PM of overturning plessy were strengthened. By building a body of law that was inconsistent with the principle, the erroneous principle set forth in plessy. So he had a strategic vision of how to do this which was brilliant and he effectuated with a team of lawyers over time litigating case after case and building factual records that would show the badge of inferiority from it is a educational facilities and separate facilities more generally. That's how he was able to show that the precedent even with principles of stare decisis in place should be overturned. SASSE >> If you're on the court during that period, that 58-year period, I want the get to precedent, super precedent, precedent on precedent, super duper precedent. 3:13:26 PM But one of the reasons you think this is because of the Harland dissent. So back up. Sixth grade level. What is the purpose of a dissent? Why do we write them? KAVANAUGH >> We write dissents because we in a multi member court disagree with the decision made by the majority. Because we think the issue is sufficiently important, if you're on the supreme court, that perhaps a future court will pay attention to your decision or in a statutory case, sometimes maybe congress will think that your interpretation -- >> Shepard: The hearing will continue on Fox News channel after a brief commercial break. 3:19:10 PM >> Shepard: Trace Gallagher live in Los Angeles. Thank you. The Kavanaugh hearings continue now on capitol hill. This is Fox News channel. >> Ordinarily you get on board the precedent but you might still write separately to say, I think this was a huge mistake and we should go back to a different approach. You see that sometimes. I think there's lots of -- >> I want to ask but the chair will let me have three more minutes. What is the difference between an appellate court judge's job and a supreme court justice's job? >> There are many. >> Specifically with regard to questions where there's been a 3:20:11 PM precedent. >> So at the D.C. Circuit level, court of appeals level, we follow vertical stare decisis. We're not allowed to deviate from a supreme court press department. Let's put it this way. On the D.C. Circuit, we were considering a prior precedent of our own. We can do that at times if the conditions for overrule ago precedent are met. We can't do that with respect to supreme court precedent. We have to file that. Why is that? There's one supreme court in our system and lower courts have to follow that or there would be chaos in the federal system if lower counts weren't bound to follow the precedent of the supreme court. >> Is there a single supreme court justice today who agrees with every opinion of the court? >> I think that's got to be zero. 3:21:11 PM >> Right. >> So how does that get netted out in the next controversial case when you use these terms, precedent, super precedent, precedent on precedent? How does that get netted out? >> Ordinarily it gets netted out by the court following the precedent until and unless the conditions for overturning something are met. Brown versus board the most example of that happened. Erie railroad case. There's examples of it but it's rare. Ordinarily what happens once a decision is decided, that's what stare decisis means. You follow the decision by the court subject to the rules of stare decisis. That's part of stability, predictability and part of impartiality, part of public confidence and the rule of law that it's not just going to move 3:22:13 PM pillar to post and the wall is stable and foundational. Again, it's not brown versus board shows it's not absolute. That's a good thing. But it is critically important to the impartiality and stability and predictability of the law. >> The fact that Harlan should have been the guiding opinion for 58 years isn't true just for the supreme court, it was also true for an appellate court? Could an appellate judge gone with Harland in 1940? >> An appellate judge was bound by the precedent of the supreme court and that would have been sadly plessy versus Ferguson. >> So the core difference here for the supreme court is there's greater latitude to consider the errors of the supreme court? >> Yes. >> 30 seconds left. I have to get my last one out. What is the declaration of Independence? What way -- the constitution is 3:23:18 PM fundamental law for us. >> The declaration of Independence is a document declaring Independence from great Britain but set forths a series of grievances from the monarchy, the system. Many of which are reflected in the constitution in terms of protections that are in the constitution. If you trace to the declaration of Independence, you can see the grievances they have are protections in the constitution, starting with the separation of powers and including the individual protections, whether it is ex-facto laws or freedom of speech. The declaration of Independence is a set of principles that I think guide our beliefs, life, liberty and the pursuit of happiness. All men are created equal, all people are created equal in our society and the principles have guided us, inspired us than the source of our liberty, the 3:24:20 PM source of much of what we've done as a country since the declaration of Independence. But it's not law the same way the constitution is law that is applied in courts. >> Thank you. >> Senator coons. COONS >> Thank you, chairman grassley. Thank you, judge Kavanaugh, to you, to Ashley, to your family and friends. Thank you for being here and for the opportunity to engage with you. Again, you've shown great persistence and engagement. [Protesters SHOUTING in the background]. In the last round, we talked about the bedroom constitutional principle that nobody should be above the law, including president, which is a principle foundational to our democracy. It's about more than any one person, any one president. And I just want to continue asking you about the president's obligation to cooperate with the federal investigation and how your view of the president's power might implicate an 3:25:21 PM investigation. As we know in 1974, senior officials in the Nixon administration and the campaign were on trial for crimes related to watergate. With so many former white house and justice department officials implicated in crimes, then president Nixon felt threatened by the investigation. So special prosecutor Archibald cox issued a subpoena for the tapes, reasonably believing that they contained evidence of criminal activity, the president acted. Instead of supplying with the subpoena for tapes, president Nixon had the special prosecutor fired. He fought the subpoena for the tapes all the way to the supreme court. I want to focus on the question of the president's action in firing the special prosecutor because that's what I think is a key issue here. Judge, when president Nixon fired special prosecutor cox, did he violate the law or the constitution? 3:26:25 PM [Protesters in the background]. >> I know the regulation in place for Leon Jaworski after the firing. I'm not recalling the specifics of the cox regulation in place at the time. >> I'll tell you there were for cause restrictions in place at the time. Given that, do you think firing the special prosecutor violated the law or the constitution? >> If it violated the regulation, it violated the regulation. >> Would it have I'll have -- violated the constitution. What I'm getting at, are there these for-cause restrictions on the president's ability to fire the special counsel. >> The supreme court and the United States versus Richard Nixon analyzed the specific 3:27:25 PM regulation at issue in that case. Actually relied on the specific regulation and finding that the case was under the precise terms of the regulation in place at the time. The court analyzed that and really specific detail. Pointed out that so long -- [protesters in the background]. >> Let me be clear about the point I'm trying to get to. Your views about whether or not when president Nixon fired Archibald Cox, he obstructed justice or the firing itself violated the constitution. It's important for you to know your views on Nixon as well. I want to know what you think about the constitution and if it prohibits restrictions on the president's ability to fire a special prosecutor. >> My views are what the precedent says. In other words, I follow the 3:28:26 PM precedent. The precedent of the supreme court in U.S. V. Nixon case did apply that regulation -- >> Judge, that was unanimous? >> It was, 8-0. >> Are you aware of any justice questioning the decision? >> No. I've called it one of the four greatest moments in supreme court history, U.S. V. Nixon. >> You. Have that's what I want to get to. You in another context as we talked about yesterday in a roundtable in 1999 volunteered unprompted that maybe Nixon was wrongly decided. Do you think us V. Nixon was wrongly decided? >> I said it was one of the four greatest decisions and correct decisions in terms of the specific regulation at issue in the case, the court's holding in a criminal trial subpoena that the subpoena for the information, the tapes was enforceable in that context. 3:29:27 PM And that's what I said before publicly about the Nixon case. >> You would agree that it was correctly decided? Did I hear you right? >> Of course. When I say it's one -- when I say something is the greatest, that means I agree with it and the point was under the specific regulation at issue in that case, a crime trial subpoena for the information and it was a moment of judicial Independence, a moment where the court I think came together as unanimous opinion written by chief justice burger. That's an important moment in the court's history. >> So you'd agree that a court can order a president to produce records or ordered to testify in front of a grand jury? >> I'm not going to answer questions on how to apply U.S. V. Nixon. 3:30:28 PM