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tv   Senate Confirmation Hearing for U.S. Circuit Judge  CSPAN  May 7, 2020 7:35am-10:01am EDT

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we strengthen people and even more importantly the quality of time. >> watch booktv this weekend on c-span2. >> the senate judiciary committee held a confirmation hearing on the nomination of judge justin walker to serve on the court of appeals for the district of columbia circuit. democrat members questioned judge walker about his judicial experience as well as past comments criticizing the supreme court's affordable care act decision. judge walker currently serves on the us district court for the western district of kentucky. >> hearing will come to order. this is a new room set up differently to deal with the reality we all face as a nation, trying to practice social distancing and good
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hygiene. thank you for coming. i hope everybody has disinfectant that they can use. we spaced out the room to be as safe as possible to my staff and minority staff, thank you for working together. we are back, we spent 40 something days since the senate has been able to meet. the committee has a lot to do related to the coronavirus but we have other things for the good of the nation-like filling judicial vacancies or getting comments throughout the country about the vacancies and how they are impacting the ability to deliver justice in various states it will be as prompt as we possibly can. my democratic colleagues are requesting hearings on the effect of the virus in detention centers for immigration purposes and we will try to work together to
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have those hearings. i'm curious myself about safely in the nation's prison. next week we will hear about liability issues related to the virus. what can we do as a congress to safely open up and minimize legal exposure for those to reopen the american economy, an important topic for me. we will deal with the dc circuit court, judge walker from kentucky has been nominated by the president, a highly qualified individual and senator mcconnell will be submitting a written statement.
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can we hear from senator paul? is that okay? senator paul, the floor is yours. >> thank you for allowing me to introduce judge walker. i'm pleased donald trump reached outside the beltway to new york multiple a judge committed to the constitution and to be elevated now to the nation's second most important court. does walker will be the first to the dc circuit, that was confirmed 15 years ago. i was honored to recommend judge walker for the district court and honored to recommend judge walker now to the elevation to the dc circuit court and if you met judge walker, how i was immediately
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replaced by knowledge and the short time is a district judge, and unwavering fidelity to the constitution. in early april our nation was in the middle of a health crisis. politicians around the country began clamoring and claiming tremendous power, part of the everyday life. many in the public cheered them on and governors and mayors were seemingly in a race to see who could restrict their citizens movements the most. governments began to enact restrictions to print the free exercise of religion. the governor ordered the state police to record the license plates of churchgoers on easter so they can be forcibly quarantined. the mayor of the largest city band the church from holding easter services including a drive-through service where worshipers would stay in their car. with the weekend looming one church went to court and judge walker was assigned the case. the easy thing would have been to wait until the following week to hear the case with
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easter having passed. does walker saw such a violation of the first amendment he issued a rare saturday order blocking the city from criminalizing easter. i'm sure each of you, i commended to you as it demonstrates the depth of his knowledge of the law and history. it is fidelity to the constitution even in times of crisis. judge walker is just the kind of person we need on the bench. i support him and urge you to send his nomination to the floor. >> thank you, senator paul. senator feinstein. >> thank you. i would like to begin by thanking all of the front-line workers who have spent untold hours responding to the covid-19 pandemic from doctors, nurses, first responders to grocery store workers, bus drivers, farmworkers, these men and women have helped keep us safe and well.
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i know i speak for all of us when i simply say thank you. today the committee is moving forward with a hearing to consider the nomination of justin walker to the dc circuit. the senate confirmed judge walker to the district court, to the western district of kentucky on october of 2019 with no democratic votes. after serving just six months as a district court judge, he has now been nominated to the dc circuit. after the supreme court, this is the most important court in the country. its rulings have national implications including on issues such as healthcare, the powers of the executive branch, workplace and environmental safeguards. in his short time on the bench judge walker, just 37 years
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old, has had virtually none of the experience one would expect of a district court judge before elevation to the circuit. he has not presided over any bench or jury trial. he has written opinions and only 12 total cases. it is not surprising then that groups like the leadership conference on civil and human rights have opposed judge walker's nomination partly because of his, quote, lack of experience which, quote, paints a vivid picture of an individual who is unworthy of a lifetime appointment to the federal judiciary. more than 200 groups including the leadership conference, naacp, and national council of jewish women also opposed judge walker because of his record against expanding access to healthcare and safeguards for the environment, consumers, and the workplace. in its letter, protect our
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care, noted judge walker's statement that the supreme court's decision to uphold the affordable care act was, quote, indefensible. that letter signed by 53 groups expressed concern that judge walker's confirmation could, quote, exacerbate the healthcare crisis in this country. i will ask judge walker today about this record and whether he can fulfill the judicial standard of fairness and objectivity that we should expect from our federal bench, thanks, mister chairman. >> thank you, senator. >> thank you for giving me the opportunity to make an opening statement. when we heard that senator mcconnell was summoning us to washington dc after 5 or 6 weeks where most of us sheltered in place at home i
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was waiting to hear the agenda. i knew what america was focused on, a national emergency warns of donald trump, public health care crisis that we hear about every minute of every day that has literally changed the lives of so many people across america and as of this moment claimed at least 70,000 american lives. 1.2 million people infected. at least based on testing so far. it is the gravest challenge and crisis that we have faced, many of us, in our lifetime. so the senate judiciary committee coming back for business, certainly a lot of things we can bring up related to this covid-19 crisis. we can certainly be asking the subcommittee on border security and immigration to address the issue of over 50,000 d aca
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critical health workers in america whose status under the immigration laws of the country are at least uncertain. we could be bringing that up and discussing whether we can afford to lose 50,000 healthcare professionals at this moment in our history. the subcommittee on the constitution could have asked us to take a look at how the election is going to be held in november, whether americans are going to have an opportunity to vote even if they are fearful of leaving their homes and going to a polling place. the subcommittee on crime and terrorism could have asked us whether we have sufficient protective equal and for police, first responders and whether we are doing all we can to protect federal prison guards. take a look at the numbers if you haven't seen them, the bureau of prisons not just of the incarcerated but the guards being affected as well. we could have asked the subcommittee on oversight to
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take a look at senator mcconnell's own suggestion that we address the issues of liability across the board in terms of covid-19. certainly a worthy topic and one that we may bring up next week. aarp tells us seniors are facing healthcare scams in record number because of this covid-19 crisis. this is within the jurisdiction of senate judiciary committee. the list is lengthy. unfortunately it isn't the reason we are returning this week. and that we are considering the nomination of a 37-year-old family friend of senator mcconnell's to the second highest court in the land. a nominee who has a record, ironically, of stridently opposing the affordable care act which seeks to extend health insurance coverage to all americans and who was last year found unqualified to serve
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as a district court judge in the commonwealth of kentucky but after his six month career on the kentucky district court, in the eyes of senator mcconnell, a promotion to the second highest court in the land. this is the second time senator mcconnell has prioritized this judge over the coronavirus, the first is when he recessed the senate in march to attend a ceremonial investiture. senator mcconnell said last week when it comes to the covid-19 pandemic, quote, we cannot get distracted by preexisting partisan wish lists, that is exactly what is happening in this hearing. we are in the middle of one of the greatest public health crises in the history of our nation, we are sitting in committee with jurisdiction in so many critical areas when it comes to this crisis and instead, senator mcconnell is unwilling to set aside his wish list of filling the courts. the american people deserve
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better. >> judge walker please rise. please. raise your right hand. do you solemnly swear the testimony you will give this committee is the truth, the whole truth and nothing but the truth so help you god? >> yes. if you could just pull the microphone close the floor is yours. you need to turn it on. >> thanks, chairman. good morning. i would like to thank my home state senators, senator mcconnell and senator paul, for all the support they have always shown me and thank you to senator paul for the statement you made today. thank you to chairman graham and ranking member feinstein for holding this hearing and to
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chairman graham for chairing it. thank you to the president for nominating me. to my wonderful wife and my precious daughter isabella. thank you for all your love. to my mom, debbie walker, thank you for being the great role model of my life. thank you to all the family and friends and supporters who have been there for me before and during this process and thank you to my clerks and colleagues on the western district of kentucky for your wisdom and your advice. thank you, chairman graham. >> we will go by seniority in the easiest way to do it,
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anyone wants to do it by videoconference, ask questions, we have that capability. i want to introduce the nba rating regarding judge walker and i will do that now. he was determined to be well-qualified by a majority of the committee, a minority determined he was qualified in the minority determined that he is not qualified. i would like to introduce that into the record if i could. tell us a bit about the case in kentucky involving the church that senator paul mentions? walk us to that very quickly and give us your reasoning why you pulled the way you did. >> on the week before easter, the mayor announced with 5 different statements that it
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was not allowed for members of a church to worship at a drive in church service on easter. the plaintiffs in that case reached out to the mayor on thursday and asked if they could nevertheless have their service in spite of what he announced. the mayor did not respond to the plaintiffs. on friday they filed a motion to a temporary restraining order that arrived on my desk at about 6:00 pm friday. i had to make a decision and i had to make a decision quickly so that people could now on saturday whether they could go to church on easter sunday. in looking at the law, seemed to me the free exercise clause of the first amendment
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prohibited the action that the mayor was taking. it was a long opinion it was a long opinion because i believed it was a momentous and even severe thing for a court to enjoin a mayor in the midst of this pandemic when the mayor is asserting that his actions could save lives. that only made the decision i did because that is what the law required. i explained it "in depth" because i did not believe it would be possible to explain the meaning of the free exercise clause without explaining the history of the free exercise clause. >> thank you. you mentioned the justice roberts decision to determine the this was a tax and congress had broad authority to levy a
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tax. can you tell us what you're talking about and why you did what you did and why you took this opinion out for comment? >> certainly, senator. the case i was referring to was the sibelius. that is binding law on all lower court judges and as a sitting district judge, i will follow it fully and faithfully. when i was clerking for justice kennedy, that was the most public high profile case of the year and as you can imagine, no supreme court justice likes being in dissent. justice kennedy's circumstances, it is not a position he is in often. at my investiture speech i wanted to pay tribute to
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justice kennedy, he changed my life by hiring me, at the end of the paragraph paying tribute to justice kennedy i made a lighthearted allusion to his dissent in nfib versus sibelius and it was nothing more than a tongue-in-cheek way of recognizing what is in the public record in the united states reports, the chief justice wrote a majority opinion holding the individual mandate was a tax and justice kennedy dissented. >> thanks, mister chairman. in 2018 op-ed you call the supreme court opinion, they -- you likewise praise brett kavanaugh for providing what
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you call a roadmap for the supreme court to strike down the aca. how was the supreme court's opinion upholding the aca indispensable. >> a few things, the first is as i said to senator graham the court's opinion is binding on me and i will follow fully and safely. when i wrote that op-ed i was not a district court judge. i was in epidemic and a citizen engaged in matters of public concern as many judges were before they became judges. i understand that my role now is different than it was then. with regard to what i specifically wrote, i did as an academic size the legal reasoning in the majority opinion but that was not a commentary on the merits of any particular healthcare policy. it was a legal analysis about
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constitutionality. >> that is not the only time. in march of 2020 at your investiture ceremony for the western district of kentucky you publicly discussed the court's aca. there you said the, quote, worst words you heard while clerking for justice kennedy were, quote, the chief justice think this might be a tax. that was an apparent reference to chief justice roberts's opinion upholding the aca as a function of congress's taxation power. if you were willing to discuss the court's opinion at your investiture when you were sitting lower court judge why are you unwilling to do so now? >> as i tried to explain to senator graham that statement, that lighthearted allusion to
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something justice kennedy rose was part of a paragraph talking about the very important relationship that i have with justice kennedy and how he has been an invaluable mentor and friend to me since i clerked for him in 2011-12. it was not meant as anything more than a reference to the dissent he wrote and a bit of a tongue-in-cheek allusion to the reality that no supreme court justice likes being in the dissent. >> the covid-19 pandemic has are ready has an outsized impact on those who need access to healthcare but if the aca were to be struck down as you have advocated even more americans would face devastating health and financial consequences. why in the middle of a pandemic
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should we support a nominee who would take away healthcare for millions of americans including those with preexisting conditions. >> the covid-19 pandemic has put this country in an unimaginable crisis. i doubt there is anyone in this room who either hasn't then affected or doesn't know someone who has been affected either in terms of health or in terms of the economic impact. i certainly have friends in that category. >> that is your answer? >> know. i'm sorry. i was going to add that it is not the role of a judge to opine on healthcare policy. a judge, a district judge, as i have been for the past six
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months in the dc circuit judge if i'm lucky enough to be confirmed, has a responsibility and a duty to go where the law leads, where the constitution leads. that is what i have done as a district court judge and i have done it without any policy preferences or any consideration of whether or not i like the policy outcomes, whether policy has to do with healthcare or something else. you are not a good judge if you always like the policy outcomes that results where you go where the law leads case-by-case with an open mind. >> one quick last question. at your investiture speech in march you praised justice brett kavanaugh who was in attendance and said, quote, in brett kavanaugh's america we will not surrender while you wage war on our work or our cars or our hope or our dreams. what did you mean by brett kavanaugh's america?
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>> brett kavanaugh and justice kennedy are mentors of mine. i defend them both. >> i'm asking you what you meant. >> brett cavanagh and justice kennedy are outstanding judges. ... >> i am not attacking them i'm just asking you what you meant. >> and what i meant is that justice kavanaugh as well as justice kennedy are outstanding judges for that and of the approach to judging that considers text rather than inserting the judges political opinions into what the law is. >> all right. because as i read it, you referred to our work, our cause, our hope and our dream as being
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different from what is usually taken, but identified it with justice kavanaugh was views. and i'm just interested in knowing what that meant. >> certainly. i think justice kavanaugh approach to the law respects separation of powers. respects the judges limited role in our constitution structure and demonstrates fidelity to text, those were the kinds of legal principles that i was praising when i was praising justice kavanaugh in my speech. >> thank you. appreciate that. >> senator grassley. >> judge walker, i'm going to ask you about chevron, because most other circuit judges, don't do as much with administrative rulings which the court your appointed to. so please understand, give me
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your understanding of the supreme court holding in chevron. when, if ever, is it appropriate for a judicial branch to defer to the executive branch interpretation of law? >> chevron is an opinion from the 1980s u.s. supreme court that has two steps. the first step of chevron, once that step is triggered by a formal agency rulemaking, the judge considers whether or not authorizes thet agencies regulation is either clear or ambiguous. and atdm that step the judge los at the text, considers structure, history, cans of construction and presidents, and decides is the statute clear or ambiguous? if the statute is clear, if included authorizes the
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regulation, and the regulation is valid. if the statute is clear and it clearly does not authorize the regulation, in the statute is invalid. however, if the statute is ambiguous, then the judgments to chevron step two, and that that step two the judge considers whether the agencies interpretation ofsi the statutes a reasonable interpretation. if it is a reasonable interpretation, then the judge upholds the regulation. if it's not a reasonable interpretation then the judge holds that the regulation is invalid. >> has chevron given too much authority to administrative agencies? >> senator, it's not for me as a sitting judge to critique binding precedents of the supreme court like chevron. chevron is still absolutely good law, and i'm bound by now as a sitting judge and i will be
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bound by on the d.c. circuit. as an academic before it became a judge, i wrote about chevron deference. i made some predictions about where the supreme court might go in the future based on some of the things of the supreme court had done in the recent past. i i can give you one example. in the decision king v burwell, the supreme court recently held that chevron does not apply to certain agency regulations when they involve a very major question. and so my article discussed that. >> okay. the next question i asked almost every nominee for the judiciary branch. i want to know how you would consider foreign law in your deliberation of a case. in your opinion is it ever appropriate for a judge to rely on foreign law or this other
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quote-unquote views of the world community that i have sometimes heard people refer to in determining the meaning of the united states constitution or statutes? >> senator, as a district judge i have never relied on foreign law. i think as a general rule it's very rare that a judge should rely on foreign law or consider foreign law. there are exceptions o to that. if a contract, for example, between the plaintiff and the defendant has a choice of law provision that refers to the law of a different country, then that might be part of the contract that the judge interprets. a judge might also consider ancient english law when determining the common law that informs certain constitutional provisions that the framing generation wrote and ratified.
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>> here's something that has come up very recently, and in my too often, in recent decisions, particularly in a three and half years years of this administration, is that every appropriate for a federal judge to issue a nationwide injunction blocking the implementation of federal laws, agency decisions, executive orders or similar federal policy, y and if you think it is okay, when and why? >> the question of nationwide injunctions is a question that is currently being litigated in courts across the country, and could certainly come to me and the future case in my role as a district judge on the western district of kentucky or on the d.c. circuit, if i'm lucky enough to be confirmed there. so what i can say, senator, is that if you look at the injunctionss that i've issued s a district judge, including in j
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the opinion that senator paul refer to and that i was asked about earlier by senator graham, it's a narrow injunction. it notes specifically that i was issuing an injunction that bound the defendant with regard to the particular plaintiff in the case. >> thank you, judge walker. >> next, senator leahy will be joining us by videoconference. senator leahy. >> thank you, mr. chairman. it's interesting having this hearing. i want to submit an extension for the record. >> without objection. >> and in my statement i should note that in the midst of the pandemic that is taken and 70,000 american lives, and and will take a lot more, we are holding our first hearing on a
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judicial nominee. i'll submit my questions but i hope if i go back -- [inaudible] judge walker, you haven't hidden your contempt for the supreme court decision of the affordable care act. i heard what you said to the other senators. you called it indefensible. once you are a sitting judge, you referred to chief justice roberts rationale for upholding the aca, that it may be attacks as the c worst words you could hear. the difference is you are a sitting judge -- achieve justice that way.
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many thought it was probably not -- seeing how you would rule on ac. you know how many millions of americans have become unemployed because of the covid-19 pandemic? >> senator, i know that there are millions of unemployment claims being filed. there are many people hurting right now, and i know people who have become unemployed and you are hurting right now. my heart goes out to all of them. >> i'll let g people decide how- but there are 30 million americans who lost their job the last few weeks.
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now, over 50 million have pre-existing conditions. throw out the aca, pre-existing conditions, they would never be able to be insured. they will be without insurance. i'm glad you feel badly for them. i thought it was remarkable for a number of reasons. it goes through various historical examples where religious liberties provided and every one of us are opposed to religious liberties being violated. but -- [inaudible] slave owners pretending to attend prayer meetings. you suggested that the mayor went to keep covid-19 infection rates down to protect its citizens. is that comparable to a
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slaveowner while gating sleighs while attending a prayer meeting? >> not in any way, senator. what my opinion attempted to do was to say that the free exercise clause related to religious worship is among the apex of rights in our constitutional order. and it is there not because i have put it there because the framing generation put it there through the first amendment. and i believe you couldn't explain the meaning of the free exercise clause without explaining the history of the free exercise clause. and, unfortunately, our country there has been some terrible intolerance toward people of faith. and some of that history informed the writing and ratification of the first amendment, the history that came before the first amendment, and some of the history is instructed later.
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because as justice holmes said, sometimes the page of history can be worth of volume of logic. >> but, judge, don't you think it sets come some would call it overruling. you're applying for a job, this job. i grew up in the coming were both my parents had to face religious intolerance. i believe in the first amendment. now, in your judicial -- you spoke about that some length -- the risk of losing our courts -- [inaudible] but justice generally in the position of waging war and who would lose against our courts in
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this country? >> well, senator, the message of their and the message throughout my vestige or speech was really twofold. the first message was that good judging means taking the judges personal policy preference out of the equation and following text, structure, history and precedent. the second point is that the politicization of the judiciary is harmful to an independent judiciary. and i wasn't trying to inject politics into my speech. i was trying to push back against the politicization of the judiciary. >> well, you are under oath, so i'll take that as your answer.
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i would also note the statement you made following the republican agenda, what donald trump wants to see in his nominees, and you can understand why comes on including a number of republican judges that's more of an audacious statement. my time is up, and mr. chairman, i will submit further questions for the record. >> yes, sir, without objection you may do so and it disher statement also. senator cornyn. >> thank you, mr. chairman. judge, welcome. congratulations on your nomination. i've been amazed that are members of the senate, in congress generally, i don't think it's okay for us to be here doing our job. they think it's okay for grocery clerks tok show up to make sure we have food on our tables.
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they think it's okay for doctors and nurses to show up and tend toto the sick in our hospitals d healthcare facilities. they think it's okay for police officers to show up, but haven't for bid the united states congress show up to do our job. i thought our friend, senator durbin, get a good job of making a long list of things that we can do, and we may end up doing, but you've got to start somewhere. and as we, know, the responsibility to provide advice, consent of nominations to our courts is one of the most important responsibilities of the senate. i guess you stand accused of actually knowing a united states senator or two. i don't know how you a federal judge without knowing the united states senator, since it is the
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thinnest responsibility to provide that advice and consent. but i would submit that we can walk and talk and chew gum at the a same time, and do a number of things. i for one am glad to be back. so some have said that you don't have the requisite experience to be on this, on the d.c. circuit court, and it's true that you have not had an extensive trial practice before you came a district judge. you chose to go into academia primarily, correct? >> yes. >> are there judges, currently justice ishe currently on united states supreme court never had an active trial or appellate practice but served primarily in academia? >> senator, it's my understanding that there's a long and rich tradition of academics being nominated to federal appellate courts
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positions. they are on the d.c. circuit. there are form academics on the u.s. supreme court. i'mdc not trying to put myself n their league, that the answer to question is yes, there certainly is a long history of academics being nominated to the federal courts. >> and i guess you've also been criticized for your relationship with judge kavanaugh. you clicked for judge kavanaugh on the d.c. circuit, is that right? >> that is correct, senator. >> and i think the way judge kavanaugh was treated during the confirmation process is a stain on the senate judiciary committee and on the united states senate. it was absolutely disgraceful and completelys unjustified. now, you made some statements in defense of judge kavanaugh while you were law professor, correct?
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he uk some tv interviews and the like? >> i did. >> is it unusual in your experience for law professors to opine either on judicial nominations or on legal matters that are being considered in the public arena? >> it's not at all unusual. in fact, i think i could go so far as to say that for many law professors eats these important of the job. >> and the news media is always eager to have some law professor who claim some expertise on a topic to render their opinion. so did you feel that your primarily defending judge kavanaugh against what she viewed as unjustified and untrue attacks against his character? >> well, when i begin speaking about justice kavanaugh in the summer of 2018, i did it because as an academic and as a former clerk, i thought i knew about
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justice kavanaugh and his jurisprudence under wanted to share that knowledge with people who didn't. there were certainly times when i defended justice kavanaugh. justice kavanaugh is a friend and mentor, as is my former boss justice kennedy. i clerked for both of them, and i will defend them both until the cows come home. . >> you have an active as a law professor writing various articles. that's what you do? >> that's correct. one of the focuses of my scholarship was administrative law which is the day in and day out bread and butter of the dc circuit. >> thank you for being here to accept this responsibility.
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thank you mr. chairman for scheduling a hearing. it's very important to function as much as many people in the economy in daily life are functioning to observe social distancing in the right guidance from the cdc and other experts. >> thank you mr. chairman i am here doing my job. i came here because we are in the midst this nominee has characterized as an unimaginable crisis i can't go to the state of texas or illinois and ask americans who are concerne concerned, worried, frightened by the current situation of coronavirus, with the highest priority should be. we know what it is with senator mcconnell. this nominee.
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of all the things we could be debating, things that are relevant to this crisis, we have been brought back here to debate this nominee. that's the point i wanted to make in my opening statement. i am here at risk i assume and danger and many of us are as well. that's the point i wanted to make. senator walker, you have been very careful he refer to your responsibility when it comes to the supreme court decision upholding the aca only once or twice have you deviated from saying it is binding on me as a district court judge. how is it binding on you if if you are a dc circuit court judg judge?
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>> it is binding on me in a absolute sense * a decisive side follow all presidents of the supreme court fully and faithfully. >> you said i will go with a constitution leads. can you square that statement with what you just said? >> certainly. the constitution requires absolute fidelity to supreme court precedents the constitution outlines one supreme court with the possibility of lower courts so in that hierarchy whatever the supreme court says, that is the law for a lower court judge whether on the western district of kentucky or if i'm lucky enough to be confirmed to the dc circuit.
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>> the problem is we expect honesty, humility and impartiality. you have not been the least bit impartial with the affordable care act. your legal or constitutional contempt is obvious. you call it the indefensible decision to uphold the affordable care act at your own ceremonial investiture is the supreme court standing by you you mocked it when justice kennedy was told the rationale for the affordable care act , now we are in the midst of a pandemic the question is asked can i protect myself, my family if i have to face this virus? that's a question people face many times each day. here you come before us asking for a lifetime appointment mocking the law that provides the attempt to extend health insurance to more americans do you understand the angst and
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concerned that we have to put you in that position at this moment in history? >> speaking personally for a moment, when i was two years old my mom had breast cancer. she is a breast cancer survivor. she survived heart surgery, neurosurgery, i thank god every day she was able to get the medical care that she needed i hope every american can get the medical care that they needed. as a judge it's not my job to define policy. i have to go where the law leads and what you said with integrity and independence and
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temperament, that goes to why the american bar association gave me the highest rating yesterday. >> i have an idea. might of your public comments would you commit to recuse yourself from any case involving constitutional challenges? >> section 455 outlines when a judge should or should not recuse i pledge to follow that statute to the letter. i would consult with my colleagues on the dc circuit. there is a long tradition of judicial nominees not to recuse because a judge has to take each case by case and
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that is a decision about the case. >> judge walker after 162 television appearances and all you have written and said it's painful to hear you say you have an open mind. i gave you an opportunity to clear the issue you have chosen not to. i yield. >> thank you judge walker. at the outset it is not only acceptable but appropriate and entirely necessary for us to be here. first responders, doctor responders, doctors, nurses, phs , grocery stores, working seven days a week while managing the task of homeschooling children for the first time and lawmakers who
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have been absent in recess for about six weeks. not that we didn't have reasons but if you're going to legislate then legislate you can't pretend when congress is out of session. congress may not should never attempt to be doing its duty when members are not here we can't have hearings or process presidential nominees or enact legislation if we are not here. we have mechanisms in place to socially distance. not foolproof but nothing is we have undertaken every reasonable effort that senators can convene in a safe manner. i somewhat resent the suggestion because judge walker has voiced some disagreement of the analysis undertaken by chief justice roberts and nfib versus
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sibelius that that is a policy argument that he is apathetic to individual americans are the poorest among us. and in life to serve those who need to be served. but for whatever it is worth, i strongly echo to say the court may not be penalized for making a decision. it is nonetheless operated by fallible human beings and nfib made a mistake. one can say that, and you have without commenting on the underlying policy merits or
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who should have healthcare. it's a fact that chief justice roberts rewrote the affordable care act not once but twice when it was enacted by the senate to be rendered constitution defects. judge walker you issued a temporary restraining order with religious liberty you been why the criticized for that but that is entirely consistent with the law is that not the activity of religious expression to target activity and expression for adverse treatment by government as it was done in louisville. >> that's correct.
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>> it is black letter law under supreme court precedent and under kentucky's registration act absolutely the command of the constitution and religious institutions be treated equally by the state. >> that would have been a dereliction of your duty. >> i believe that is correct and if i had waited longer there would be irreparable injury to the plaintiffs for a factor of a temporary restraining order requiring the judge to consider specializing in administrative law it has a history in this
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country and focuses on the principle that congress may not simply enact the law the president or any executive branch officer to simply promulgate or enforce as be deemed appropriate within the executive branch. how do you think that might play into the dc circuit court of appeals? >> congress cannot delegate the legislative authority to the administrative agency that goes back to the first sentence of the first article of the constitution all legislative powers shall be vested in a congress. >> i hope we get a second round thank you.
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>> senator white house by videoconference. we see you. >> thank you chairman you look great. judge walker you signed the letter for the code of conduct committee along with many other judges you did not provide that letter to the senate why did you not? >> that was a letter from judges to judges. there were approximately 200 current federal judges nominated by every president going back to gerald ford who signed the letter in response to a request for a response
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from the code of conduct committee it was not a public letter but of the same nature of any correspondence from one judge to another one group to another. >> not an official statement relating to public policy or legal interpretation? >> as i said judges frequently right to other judges i do that. >> are there other things you were not disclose like this letter? >> there are not. >> this is the one.
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>> the senator i have disclosed everything the senate committee has asked that i disclose. >> you have any role to prepare this letter? >> senator i saw a draft the short answer is no. >> who prepare the draft of the letter? >> it's my understanding there was a handful of judges that prepared the letter i'm not sure who they are it's not my place but i suspect they would be quite proud to be listed but if you would like in the
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follow-up questions. >> is there a privilege of some kind? why are you not answering my question? . . . .
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in your advocacy on behalf of brett kavanagh who coordinated your tv and radio appearances of a >> yes, senator and the majority of those appearances i received a direct e-mail from the tv producer and they asked if i would be willing to share my experience and i was willing to do it. it was quite informal.
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i was new to the world of cable news and i was asked to make statements about the justice that i greatly admired and i consider a mentor and friend. >> you know, senator my old friend is a good person and has more knowledge about the world of cable news than i do and he did it without pay and i did it because i admire him. >> and he was the only person who coordinated?
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>> that is correct certainly to my knowledge. >> what war is he waging that you referred to in your remarks when he came to your investiture? >> the remarks were my description of the kind of justice that i believe he is and the kind of good at judging that is required of the judging. that is fidelity to the separation of powers protect us and understanding that the judge's role in the constitution is a limited role as for the political branches to make policy and for the judges to decide cases without passion or prejudice for any particular policy outcome.
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>> and you described that as waging the war, correct? >> in my speech i was admittedly unabashed in my sense of the judicial philosophy and an approach to judging in the rule of law that considers the original meaning of text and keeps judges politics of decision-making. >> you've let me go over my time. i wish we had more time and clearly we will have a lot of questions for the record that i hope we will get complete and candid answers to. >> thank you very much. senator cruz. >> thank you for convening this hearing and i suppose i should congratulate him on having what i think is the largest judicial confirmation hearing we've ever had. i will be sparsely attended but congratulations on your service on the district bench and congratulations on the nomination to the dc circuit you
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happy fohave before you a case concerning religious liberty. can you share for the committee your view of what the constitution is protecting with the religious liberty clause of the first amendment and what is the importance of those protec >> certainly, senator cruz. the freedom to worship was one of the audacious ideals of our constitution. the history, history of the world is rife with religious conflict and religious persecution, and our framers maders the decision that no matr what god you pray to, , the matr where you worship you should be equal in the eyes of our law. as i said it was an audacious decision. they put in the constitution
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because they knew that people of faith had faced discrimination in our past, and because they were concerned that they might face discrimination in the future. and, unfortunately, as i said in my opinion, there have been unfortunate chapters in our history where that has happened. but the supremeed court has said over and over again that the law requires secular institutions and religious institutions to be treatedbe equally, and that was the fundamental principle at the heart of my temporary restraining order. >> judge, our country is obviously in in a time off cris right now, and times of crises bring out peoples character. we had seen some extraordinary government policiesex implement.
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during crisis there are legal authorities for government to act, but what is your view of the extent to which the bill of rights continues to operate and protect our liberties, even in the time of crisis? >> senator, there is case law in this question, and the case law suggests that constitutional rights don't stop being constitutional rights, even in a time of emergency. >> you've written at some length about separation of powers. the d.c. circuit has a unique docket with the heavy assortment of challenges to decisions from federal agencies and dependent agencies, and questions of separation of power get raise
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with some regularity at the d.c. circuit. can you share with this committee your views on why separation of powers matter, and what it does for the average american citizen? >> separation of powers protect liberty. of course, there are provisions in our bill of rights, including the free exercise clause as we were just discussing, , that are important protections of liberty. but there's probably no more important protections liberty and separation of powers, the cows there are tyrannies all across the world and all throughout history that have beautiful bills of rights, but they don't have the separation of powers. they concentrate power in one branch of the government, and it is worse than just one person. and when that happens there is no check on that person, and so
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whatever nice liberties are listed in thete bill of rights, the person with the concentrated powers free to ignore them. there's probably no more dangerous threat to our liberties than the concentration of the executive power, the legislative power, and the judicial power all in one place. separation of power protects against that as you have written before, as the federalist papers have said, and other senators on this committee have written about. >> so let me ask not just on the horizontal axis but on the vertical axis as well. describe to this committee your views on federalism, the importance of federalism and why it matters for individual liberty in america. >> it's w essential, senator. as justice kennedy once wrote, part of the genius of our frame generation is that they split the atom of sovereignty and they created a sovereign federal
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government but the states maintain certain sovereignty themselves. and that is you say vertical separation of powers protects against the concentration of power in any one place. and there is our nation's probably greatest p protection f liberty and against tyranny. >> thank you. >> senator klobuchar i think is by videoconference. >> yes. thank you, mr. chairman. and also thank you for being willing to do a hybrid hearing like we're seeingei today. senator blunt and i worked hard to get this done, and i'm glad that we are seeing senators there as well as remotely, so thank you. i think we should be devoting one of our first hearings to something else, and that is the pandemic with the jurisdiction of our committee that has been pointed out by some my colleagues. we could be talking about things
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and focusing on things like the over 2000 people in our prison that have the virus. over 40 of them have died. our jurisdiction over immigration, our jurisdiction over the issues of domestic violence and sexual assault. we just had a case in minnesota in thein suburbs where a man killed his wife, strangled her and hitter in a crawlspace in the house. there's a lot going on in our country right now and hope will have future hearings focus on things like this. now, we can't divorce this nomination preceding from the pandemic, and i guess that's my first question of you, judge walker. in july 2018 you wrote an op-ed in which you were critical of the majority of the supreme court, including chief justiceit roberts, that in your words, it tacitly accepted that the affordable care act was constitutional under the congresses taxing power.
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do you still hold this view? >> senator, the statement i made was made as an academic and as a private citizen engaging in matters of public concern, and my rollout as a judge is not to give a thumbs up or a thumbs down particulars of green court president. if i'mdi lucky enough to be confirmed to the d.c. circuit, it would be binding on the and my current role as a district judge, it's binding on me, absolutely. >> and you do understand the right now therere are americans that are dependent on the affordable care act, and the way i look at this is it not of this stuff is relevant that you did as a private citizen, you've only been a judge for six months, and in your adult life since you y are 37, that is two,
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3% of your work life. so in other l words, 97%-98% off limits. i don't really understand that. i think that's the only way we're going to figure out your views as we evaluate what kind of judge you would be. editing another example of this is you provided the committee the working draft of a law review article you wrote earlier this year where you said that the supremert court will be head to reconsidering the chevron doctrine which says that courts toin generally defer to interpretations. as you know of agencies and things about protecting our drinking water, safe workplaces. so do you think that a court, single judge, is better positioned than an agency expert to interpret a rule on things, complicated issues of water safety or on worker protection? >> senator, the article that you are referring to describes and
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predicts what the supreme court has done in the past. it describes where it might go and predicts. in fact, as i wasas writing the article one of the predictions i made with regard to deference to agencies involved a case called kaiser versus wilke. when i started drafting the article, i predicted that the supreme court would address deference to agencies and perhaps do it in a slightly different way. by the time i finish drafting article, kaiser had been decided, and the decision in kaiser overturn any precedent, but it did refine and in some ways limit the president that was at issue there which was with regard to deference to agents. so to the first part of your question, i'm not in any way running away from the scholarship that a wrote as an
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academic or asking to ignore it. i hope that you will -- i don't think it's been read very much until now, but if you do read it i hope that you see that there's a rigor to the analysis and the research and the writing that reflects how i would approach every case, case by case with an open mind to try to look at things on all sides, and trying do, what the judges, what the judges do, which is dive into an area and try to learn as much as they can about it. >> judge walker, the way i see this is about a third of the cases of the d.c. circuit are about agency appeal. so it's a really important part of the work, and my concern here is that your views are not consistent with where the courts have been, including werent actually justice scalia was when he came to chevron. and that will dictate how you're going to be as a judge.
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just one last point i want to make about this. the nonpartisan brookings institution report back in october of 2018 found that the trump administration has between a five to 10% success rate when defending the administration's actions in court. now, previous administrations have that averages of 69%, and that includes republican and democratic administrations. so to me this suggests that even under chevron deference, courts can prevent agency actions that are unreasonable or contrary to congressional intent. and this may be an academic argument, but for me it's the real a thing. my grandpa worked in the mines. it was agency rules that made those mines safer. i think a lot of people during this pandemic who are working in the meatpacking plants right now in my state or people who are working in the front lines in
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the hospitals get that these osha rules and some of the regulations in place are going to make the difference between life and death for them. i do want you to consider this as you answer this question and to think about how you're going to rule on these things in the future, if you are confirmed. >> well, thank you, senator. i think the role that agencies plate in our country is an important role in terms of the kinds of protections you are talking about. it's not for me as a district judge to say what certain policy should be, but i think i can say that, you know, our country, our country is stronger when we have a healthy workforce and when people are safe. i think in terms of judges reviewing agency action, it's
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neverwi the role, it's never the role of the judge to second-guess the political policy decision of an agency, particularly when that agencies decision comes from the agencies expertise. however, it is always the role of the judge to remember the courts responsibility under margaret murray madison which is to say what the law is. and when an agency issues regulation -- marbury v. madison -- judge has a responsibility to say that that agency regulation is invalid. it may be great policy, buttigieg has to sometimes issue decisions that result in a policy out, that the judge doesn't like. and if a judge never issues a decision of results and a policy out, that the judge doesn't like, it's wobbly not a very good judge. >> and, of course, my problem
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is, and i have run out of time you, but i do think you said which could drop the consumer financial protection bureau, the ftc, when you've beenn critical of the supreme court's decision, to me that results in decisions that are not good and will hurt people but i will with that in writing or if there's a second round. thank you. >> thank you. senator hawley. >> thank you, mr. chairman. judge walker, good to see you again. thanks for being back before us. let's go back to religious liberty is aon good for a secon. let me ask w you about one of te similar religious liberty cases of the last several decades, i would if i could ask you to telling us what you understand at this remove to be smith's controlling holding? what remains? let's assume you're come from. you are already a sitting judge but if you're confirmed as a federal circuit court judge what would you understand to be smith's direction to you that you are bound d to apply?
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>> well, senator, smith preceded trinity lutheran which i know you are extremely familiar with. and the scope of smith after trinity lutheran, how to read smith in light of the majority as an opinion, what to do with the concurrence in trinity lutheran, of course concurrences are not binding precedents, it is an issue that is being litigated throughout the country here it could easily come to me in my current role as a district court judge. i'm hesitant to say more than this, that smith is t still good law, but trinity lutheran is the recent decision that every judge in the country must follow fully and faithfully. >> let me ask you this.
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since you mentioned trinity lutheran, let me ask you about that let me ask you about actually trinity lutheran in a second but let me first start with osama, case that was majority opinion. unanimous opinion was written by the chief justice. he had something to say about smith in that case. there he said that smith, i'm quoting from the majority opinion, the courts opinion, smith involved a regulation of the outward physical ask. the present case in contrast concerns government interference with an internal church decision.. what -- this is certainly binding precedent. what do you take that to mean? if you have to apply that and you may well have to come what do you take that to mean? >> i take -- i was clipping the year goes on at tabor, i take the decision to mean that it is not the place of the government to tell a church who the church
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minister should be. and as you point out, it was a unanimous decision. >> what do you, if smith governs, if the smith rule is generally neutral, generally applicable law, but the church decisions are carved out, what remains of smith, in your estimation? does this mean what comesem to interval church decisions that the smith rule doesn't apply? i'm trying to search for what you think you are bound to apply right now and i'll ask you about trinity lutheran. >> so, senator, as you know, one case is being litigated before the supreme court right now. that case, other cases that the country involved a lot of the questions that you're getting
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at. i want tou not cross the line of saying something that the code of judicial ethics is saying tt you want to answer your question. there is nothing about smith that allows the government to dive into the inner workings of a church or synagogue or mosque, and tell those people of faith who their faith leader has to b be. >> lets come to the trinity lutheran case now, and you said just a moment ago i think significantly that smith is binding precedent. the supreme court has not overruled smith in any way which also said trinity lutheran is binding precedent and must be apply. what doap you think trinity lutheran, a case that would be binding upon you, what do you feel what the instruction there that you would feel bound to apply that you can be certain of as circuit court judge, if confirmed? >> senator hawley, the constitution commands at least
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this, that the government treats sector institutions and religious institutions equally. and what was going on in trinity lutheran, as you well know, is the government had a general program that said feeney commerce may apply unless you're a church. and the court held in trinity lutheran that the government was treating religious institutions differently than secular institutions and the help that was illegal. >> finally, in my remaining two seconds here that you click for justice kennedy, do you have a favorite opinion of the justices? >> i'm the father of an only daughter, so i never have to worry aboutn being asked who my favorite child is, but along those lines i'm not going to
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pick a favorite opinion of justice kennedy's. i certainly admire him and am very grateful for the role that he played in my life. >> thank you, judge walker. thank you, mr. chairman. >> senator coons. >> mr. chairman, we are here in the middle of both a healthcare and an economic crisis. .. >> a vacancy that won't be available for 119 days. and the america has 1.2 million
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cases and 70,000 deaths and some of my colleagues have compared our service here today with the service of first responders, responding to an emergency. this is not an emergency, but it's clear it is the top priority of the majority leader to have this entire judiciary committee and all the workers called back to this capitol and all of our staff here so we could have this confirmation hearing which i frankly think should not be anywhere near our first priority in response to this national health pandemic. if i could, judge walker, in article you wrote in 2018, you said the supreme court's decision upholding the affordable care act weak and-- as we sit here today, they continue to argue they should strike down the affordable care act. do you stand by your decision
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upholded there? >> as 100% binding law and-- >> you stated that. will you stand by your public assertion assertion that its decision was indefensible. >> while i made statements as an academic and as a private citizen, i don't think it's appropriate now for me as a sitting judge to go beyond what i said in my role at the time. >> i'll just say that, you yourself said earlier, a judge must approach every case with an open mind and in your exchange with senator durbin i'm left questioning why any litigant would trust you to be open minded and fair in deciding a case about the aca, given your previous advocacy. in a 2018 article you wrote the fbi as an agency should not be independent and the director must think of himself, and i think i'm quoting, as an agent of the president. in my view that's an
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oversweeping view of executive authority. could a president, in your view, appropriately direct the fbi to investigate his political opponent? >> senator the article in question is a historical exploration of the fbi's infringements on civil liberties and to the extend your question goes to the role of the relationship between the president and the fbi with regard to the liberties of political minorities, i argued in the article before i was a judge, i argued in the article that it was the very lack of supervision by presidents during director hoover's tenure at the fbi that allowed some of the worst civil liberty abuses in the-- >> while i may agree with your characterization of the lack of appropriate oversight that tolerated or permitted hoover's overreach and the fbi's inappropriate actions, i'll just remind you that contemporaneously roughly in
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september of 2018, after john dean testified at then judge kavanaugh's hearing, you called john dean a disgraced lawyer, this is on fox news, i think, and you said, i think, quote about john dean, this is the man who betrayed his country and then betrayed his friends, he's not fit to touch judge kavanaugh's shoes. given the context, john dean testified and how president nixon inappropriately used his powers as president in overreach of the given the context you've said that the fbi should consider itself as an agent of the president and you've attacked john dean as someone who betrayed his country answer then betrayed his friends, please help me understand why you made that comment about john dean and what that should tell me about your view of independence of the fbi and appropriate actions by a president.
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>> senator, i absolutely love american history and i mean this sincerely. you may not believe me. >> i don't think any senator here will say they hate american history. >> what i was about to say, i would relish the opportunity to sit over lunch and talk american history with you and share your opinion and my opinion. i think part what makes history so much fun is people can have different opinions and perspectives. sitting here as a sitting district court judge, i don't think it's appropriate for me to comment on john dean, but whether i'm lucky enough to be confirmed or not, i would love to talk watergate history with you and i'm quite sure i would learn a lot. >> and that's a -- i'll move to a last question if i can, your honor. the aba found you were not
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qualified for the judgeship you hold because of lack of experience, when i asked you about trials, motions, and you had said y-- and i'm wondering why you're getting a promotion. you said although we celebrate today we cannot take for granted tomorrow or we will lose our cart and countries to critics who call us terrifying and describe us as deplorable. who is we in that statement you made at your investiture. >> senator this that part of the investiture speech and others i was talking those who approach judging for with respect for the rule of law and fidelity and text and belief that the judge say what the law is and not what he or she thinks that the law should be. with regard to the first part of your question about the aba's rating, i think there's a
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reason that yesterday the aba gave me their highest rating of well qualified based on my experience, integrity and temperament. >> well, my concern is that as a sitting judge, you seemed to have thought it was appropriate to talk about winning a battle for the courts and have conveyed yourself and your opinions across a number of different topics, texts and times that does not create the sense of an unbiased approach to critical and key questions. i recognize i've exceeded my time and i thank the chairman for his patience, but you know, i frankly, at a time when we've lost more americans than died in the vietnam war in a national health pandemic, i don't see the urgency of this confirmation hearing. perhaps we will have that chance to debate american history, but i feel a sense of urgency about the application of principles to the future and respect for precedence and i'm greatly concerned about where you're headed on those
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trajectories. i'll have more questions for the record. thank you. >> thank you. >> thank you, mr. chairman and i want to for one thank you for holding this hearing and i also want to thank you for-- i want today thank all the staff who made this possible, including your staff who made this video linked possible, i'll be on the hill in a few minutes voting. i respectfully disagree with my colleague that we don't need to have this hearing. we need a hearing on this and other measures that senator klobuchar mentioned. i'd like had a hearing on liability protections because we're going to see a wave of lawsuits here of people taking advantage of a situation that was nobody's fault. i for one think we need a regular order where we're encouraging states to try to get back in business, and i think trying to demonstrate that we need to as well and i respect everything that you've done to make this happen. judge walker, on the fisher
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case, i was just kind of curious, you tailored your opinion to that specific case. why not do what a lot of other district court judges are doing and just issue a national injunction because the same debates were going on across the country? why did you decide not to do that? >> senator, i did issue a narrow injunction in that case. i cited a-- i cited supreme court precedent that at least strongly suggests that when a judge issues an injunction, the injunction should be no broader than necessary in order to provide the relief that the plaintiffs in that particular case were seeking. >> well, judge, even though i would have been sympathetic to the arguments from a number of other churches across the country at the time, i think you did it exactly right and i
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appreciate you doing that. i think there's a battle that we all have to recognize here, a real threat to our independent institutions and that's when we have people come to you as has been done in this hearing, and really encourage you to legislate from the bench. i recognize that we have a health care problem. i, for one, filed a bill on protecting preexisting conditions and for the life of me i cannot get democratic support so we can put that to bed. but i don't think -- do you think, you mentioned the experience that your mother had, so you've got a certain empathy towards people who need health care, who need access to health care. do you think that that empathy should in any way influence your decision, which i believe should be based on the plain letter of the law? >> thanks, senator. as i said earlier and as you were referring to, i do have a lot of empathy for anyone who was in the terrible medical
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condition that my mother found herself in. at the same time, a judge has to go where the law leads with respect to what the constitution says, what statutes say, what precedents say, and a judge has to make those decisions even if the judge would prefer to there were a different policy outcome as a result. >> more basic question, the-- why do you want to do this? you're young, you're extraordinarily talented, you have so many other options. why to you want to be a circuit court judge? >> well, senator, the opportunity to serve the country from the d.c. circuit is an opportunity of a
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lifetime. growing up louisville, kentucky, if you told me i'd be nominated to the d.c. circuit one day i'd think, certainly wouldn't have believed you as a little kid. i saw as a clerk on the d.c. circuit what kind of judge, then judge kavanaugh was and judge griffith, the judge i've been nominated to replace who i have the highest respect for. these were -- these were people that i really admired and i feel overwhelmed with gratitude to be nominated to sit on the same court that they sat. >> judge, you've demonstrated incredible poise in this hearing and i appreciate
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everything you're doing towards supporting your nomination. thank you, mr. chairman. >> mr. bluchl blumenthal. >> thank you, and thank you for conducting that hearing on this committee. thank you, judge walker. i want to thank not only first responders, our fire and police and health care workers around the country who are on the job today, but also our police, the capitol police, all of our staff who are making it possible for us to be conducting this hearing and vote during this week. judge walker, i've been a law clerk as well. i know about defending mentors and former bosses. i clerked for a now circuit court judge and a supreme court
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justice, but defending a judge doesn't mean you have to speak dericively and speak about the chief judge as you did in your investiture and doesn't mean you have to refer to a supreme court ruling as indefensible. >> what i think is indefensible, we're here in the middle of a health crisis with someone who would dismantle an elk h health care system that's saving lives right now. what i consider is indefensible we're failing to strengthen that health care system and our economic remedies at a time when the nation desperately needs that action. and instead, we're considering your nomination. and what i consider
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indefensible is that you have taken a position passionately that would deprive many of those frontline health care workers, the nursing home clinicians and others of their health care and i know that you continue to believe that the supreme court decision preserving the affordable care act is indefensible because in that same investiture speech cited to you by senator coons, you also thanked the folks who opposed your nomination, including the american bar association by saying, quote, thank you for serving as an enduring reminder that although my legal principles are prevalent, they have not yet prevailed, that although we are
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winning, we have not won, and although we celebrate today, we cannot take for granted tomorrow or we will lose our courts and our country. my legal principles continue to believe or your continued belief that that supreme court decision was indefensible and that our health care system under the aca should be dismantled. so i want to introduce you to someone who would be directly impacted by the prevailing of your legal principles. this is one of my constituents, connor, of bridgefield, connecticut, he's now nine years old. i met him when he was five. he suffers from duschene mus l muscular dystrophy, a condition
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fatal usually by the time people are 20 years old. deprives them of the strength and ability to move, treat only with very expensive health care therapies that cost tens of thousands of dollars a year. and he is a beneficiary of the affordable care act, he is a warrior. he's a fighter, that's why he's still alive and he's become a fighter for the affordable care act. and he is one of 1.5 million people in connecticut, including 182,000 children, these are real people with real faces and real voices, like connor, who would lose their health insurance because they suffer from preexisting conditions under your legal
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principles that you continue to passionately espouse. i recognize you said that you would be bound by supreme court decisions, but that's not what you said when you became a judge and when you referred to my legal principles prevailing. so my question to you is, do you continue to believe in those legal principles, you personally, that the supreme court decision upholding the aca was indefensible? >> senator connor is a hero. i can't imagine the courage it takes to be a kid in his shoes
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in having to overcome the obstacles that he's already overcome at an age like that. i've never had to do that and i'm in awe of kids like that and people like that. when i was a little kid i do know, and my mom had a lot of sleepless nights as a single working mom, often working two jobs trying to figure out how in the world her son, who she loved, was going to have things like health insurance. and i wish badly that she had never had to have those sleepless nights. i wish badly that connor will always have all the medical care that he needs, and it is for you and for the political branches of the governments to make policy consistent with our constitution that it makes
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health care more affordable and more accessible. and i've never-- >> and we did that ujudge, we did that in the affordable care act which you would strike down if you had the chance. >> if i can finish, senator, i've never spoken against the affordable care act as a matter of policy. i said in my answer a moment ago that congress has a role to play in making -- i think all members of congress would say they have a role to play in making health care for affordable and accessible within the limits of the constitution and before i was a judge, before i was nominated fob a judge, i spoke not about the policy merits of any health care proposal or any health care statute, i talked about the legal analysis regarding the limits of congress's power under article 1 and in relation to the kind of vertical separation of powers between
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the federal government and the states that lie at the heart of what keeps us free. and at no point, at no point did i ever wish any ill will toward people like my mom when she was struggling financially or for heroes like connor. >> thank you. my time has expired and i have other questions which i'll pose in writing, but i don't think connor would be satisfied with that answer and i don't believe the majority of american people would be either. thank you. >> thank you, senator ernst. >> thank you, mr. chair and i appreciate having this hearing today. i'm glad that we're able to gather in whatever means necessary to keep the people's work moving forward. i want to thank leader mcconnell as well for bringing us back into session. we require our essential workers to be out on those
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front lines every day keeping america moving, and i believe we have an obligation to the people we represent to be here to do the people's work. so, i believe that leadership absolutely is key here and that we are not asking our constituents to do something that we ourselves are not willing to do. so, thank you very much, judge walker, for being here today as well. i really appreciate being able to see you face-to-face. so, thanks for taking the time to come here and meet with us in person. you just mentioned a little bit ago, something about your mother as well, a single working mom and that a number of years ago, you would never have imagined that you would be in this position today and i think that speaks volumes as to the kind of country that we live in, that we can overcome certain obstacles in our lives
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and come from humble beginnings to serve in the greatest of positions. so, it is an honor that you have been nominated to serve on the court of appeals for the district of columbia. i'm not going to ask about particular cases, i think a newly of my colleagues have done that. what i do hear from people in iowa, they want to know the basics about their judges. what those judges represent and what values they will bring into their position. and although the d.c. circuit typically takes up cases of administrative law, i believe that judges that serve on the powerful court. they need to share the same values and morals of any other judge serving in any other position. so what matters to me and matters to the people of iowa isn't necessarily the political
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leanings so many will focus on, but your judicial philosophy. what is your judicial philosophy. that's what i want to talk about today. bottom line, are you an originalist and can you explain that to me and why that would be important to the people of iowa. >> thank you, senator. i don't in any way run away from the label of being an originalist. >> this thank you. >> i think sometimes labels can be broad and more than they clarify i'm unabashed that a judge must look at the original meaning of text and go where the text is and be bound by the text as well as structure, con construction, relevant, precedent because it's not the job of a judge what he thinks the law should be, what she thinks the law should be.
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here is the law that congress passed and then to an i apply that law as it was written. >> you're not going to take something that happens in the media or news and say, oh, i think it should be this way, i think it should-- the laws should evolve and so i'm going to assist it along its way. is that correct? >> senator, as i've said a couple of times and would gladly welcome the chance to reiterate, a judge is not a good job-- a judge is not a good judge if he or she always likes the policy results that comes from the decision. >> very good. well, and i appreciate that. i think it is important to know that you are an originalist. folks in iowa will appreciate that the fact that you are an originalist and that you will follow the text of the law, the intent of that law, as written. and i do wish you well moving
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forward and i would give you any opportunity to make any remarks that you may not have had the opportunity to earlier. >> i appreciate it, senator. i know the committee's time is valuable and i'll stand on what i said. >> very good. congratulations. thank you very much. >> thank you. >> i believe senator hirano is with us by video conference? >> thank you, mr. chairman. >> yes. >> and far from over purely because our committee is taking appropriate precautions, and having this hearing, but nobody is talking about not wanting to do our jobs, we do object to the subject of this hearing because rather than dealing with issues that have to do with the pandemic and the crisis, health care crisis facing our country, we are having a hearing for a nominee who's seat, the seat you want to occupy is not even open until september.
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so this committee's priority and pushing through as many far right ideologically driven nominees as possible for lifetime appointments to the court continues with this hearing. i have a few questions for this nominee, i'll start with a two-basic questions i always ask and i just want it to are the record. mr. walker, have you ever made unwanted request for sexual favors or committed any verbal or assault. >> no, senator. >> have you ever entered into a settlement related to this conduct. >> no, senator. >> the baltimore examiner you advocated to have judge kavanaugh to be a judge and tip to the right and i quote, this
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is a-- issues by affirmative action, school prayer, gun rights and abortion will see drastic change, i predict an end to affirmative action and displays -- and semi automatic rifles and an end to almost all judicial decisions allowing abortion, basically that's what you meant. so, go on to -- this change will give donald trump the most conservative judicial legacy of any republican in history by far, end quote. do you consider yourself part of this conservative revolution? >> senator, the remarks that i made before i became a judge in the summer of 2018 were meant to be descriptive of judge
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kavanaugh's jurisprudence and what kind of a supreme court justice he would be and i think my descriptions-- >> excuse me, sir. judge walker, you're not answering my question. you frame this as the most conservative judicial legacy of any republican in history by far, talking about the conservative revolution and my question is, do you consider yourself part of this conservative revolution? yes or no? you don't need to go into an a big explanation. >> and senator as a sitting judge and as a judicial nominee, it's not appropriate, in fact, i'm prohibited from the canons of judicial ethics from commenting on politics or matters of public concern. the predictions i made about justice kavanaugh while i think consistent with similar predictions that people were-- >> judge walker, you're reiterating, it's very clear you don't want to answer the question i think we can draw our own conclusions by
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statements you made and writings you made and many, many tv appearances you made and report of a conservative judge that justice kavanaugh is. next question, as a judge, would you agree that it is important to get all the relevant facts before making a decision? >> senator, it's certainly important for a judge to consider all facts that are in the record before making a decision. >> sometimes a judge doesn't allow the record to be complete so i would say that your answer must be yes, that a judge should consider facts and to get those facts would you agree it's important to hear from all of the parties in the case. >> senator, certainly it's my preference as a judge when time allows to consider all adversarial briefings and it would have hearings i often do. there are often cases where there's imminent irreparable--
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>> excuse me, let me get to the crux this have matter, while it's very important for a judge to hear from all parties in a case that's not what you did in the case -- you deliberately excluded one said and issued a tro against the city without providing the city notice of the case or an opportunity to present the facts. accord to go local news reports, the city tried to contact the court twice, contact you twice, but was unsuccessful and you said there was a -- there was no time and yet, you had time to write a 20-page opinion on your tro with 84 footnotes. there's no credible to me that you didn't have time to give the city an opportunity to present the facts and they tried. that shows me how important facts are to you as a judge. my time is up. >> may i, chairman, may i quickly answer. >> very quickly. >> senator hirono, the mayor's
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lawyers confirmed at a hearing a couple of days after the tro that the mayor was mistaken when he said that he had tried to contact the court. at no point did the mayor or his attorneys or any representatives from his office make any effort to contact the court. >> reclaiming my time then. >>-- >> excuse me judge walker, it's very clear you made a decision based on one-sided argument, that the mayor had prohibited in person attendance at the church and the mayor did not. he strongly suggested such a thing and you would know that if you had heard from them. it doesn't matter to me that they tried to contact you. obviously you didn't let them know that you're about to decide this case, it was totally ex-parte. that's how important the facts in the case are are you. thank you. >> thank you, senator kennedy.
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>> thank you, mr. chairman. well, judge, you've become quite the grounding wire. politics is unforgiving. i suspect you have figured that out by now. you've been called a revolutionary in the pejorative sense. you've been called mcconnell's b boy. you've been called mcconnell's
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intern. i think you've been accused of everything except hating golden retrievers. and the subtext of all of this is that you're not qualified. so that's what i want to talk about. where did you go to high school? >> st. xavier high school, louisville, kentucky. >> what was your gpa. >> it was 4.0. >> what does that mean? you make all a's. >> i did, senator. >> you never made a b in high school? >> i'm confessing here to the true nerd that i was who didn't have very many dates, but i did make a goal going into high school of never getting anything less than a "a" and that's what i did. >> you didn't even make a b in phys-ed? >> if there was a topic i was going to get a b in it was
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probably that. >> i believe you went to duke, is that right. >> i did. >> is it hard to get into duke? >> it is. >> what was your gpa at duke? >> it was 3.9. >> you made a b. >> i made a couple, senator. >> you graduated-- it you graduate with honors? >> i did, i graduated summa cum laude from duke. >> what does that mean? >> there are various levels of honors that you can graduate and suma is the highest level. >> and then next you went to harvard law school, is that right? >> that's right. >> is harvard law school hard to go into? >> it is, senator. >> now while you were at harvard, i read that you were
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on the harvard law review. >> i was. >> do they let everybody at harvard law school join the harvard law review? >> they don't, senator. >> what percentage of your class was on the law review? >> i believe there were about 500 people in the class and the law review probably had, i think about 10% of that, but please don't quote me on the exact number. >> were you an officer on the law review? >> i was a notes editor. >> did you graduate with honors from harvard law school? >> i did, senator. i graduated magna cum laude. >> what does magna cum laude mean? >> it means i didn't do as well at harvard as i did at duke, but it's the second highest honors. >> and then you clerked for judge kavanaugh?
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>> that's correct. >> are clerkships for the federal court appeals competitive? >> they're very competitive, senator. >> hard to get, are they? >> yes. >> i've read that judge kavanaugh, now of course, justice kavanaugh is a highly sought clerkship, is that right? >> that is correct, senator. >> after that, what did you do? >> i clerked for justice kennedy on the supreme court. >> is it hard to get a supreme court clerkship? >> it's very hard, senator kennedy. >> how hard? >> well, each clerk-- each justice gets four clerks and at the time there were three retired justices so that made for 39 clerks, one for each retired justice. four for each active. so there were only 39 clerkship spots available in the country. >> after that you practiced law
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for a while, did you? >> i did. i was an attorney at a global firm and then solo practitioner and then a partner of counsel at a regional firm. >> what global firm did you practice at. >> gibson dunn and crutcher. >> they hire a lot of dummies at gibson dunn, do they? >> they did not. >> why do you think the-- in light of all of those credentials that the aba originally found you unqualified? >> at the time the aba reported that they thought i had the tempt perment and integrity to be a judge, but that they'd prefer judges that have had more years of experience after law school than i had. >> how many people were on your grading committee with the aba?
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>> i guess i think there's one or two from each federal circuit. >> how many of them went to harvard law school? >> i don't know that, senator. >> how many of them graduated with honors from harvard law school. >> and again, i don't know that, senator. >> how many of them were on the harvard law review. >> i don't know, senator. >> how many of them clerked for a united states supreme court justice? >> i don't know that either. >> okay. now the aba's had an epiphany, i understand and you're now well-qualified. >> that's correct, senator. >> not just qualified, you're well-qualified. >> that's correct, it's their highest rating. >> okay. let me ask you one other questi question, if you're asked to rule on the affordable care act, are you going to follow the law? >> absolutely, senator kennedy.
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and if i'd be as a binding precedent, would i follow it absolutely fully and faithfully. >> an open mind about it? >> open minded for every litigant that comes before me. >> thank you, judge. >> senator booker. thank you very much, chairman, i want to echo comments on both sides of the aisle and thank you for your being willing to have a hearing, frankly, this kind of accommodating the different levels of engagement and having a hearing. thank you very much. it's actually very good to see a lot of my colleagues face-to-face. this has been a long and difficult stretch for america and particularly for the state of new jersey, and if you'll indulge me with -- in making a statement, i'm not sure if i'll have time for a question and i appreciate the nominee coming before us, under these
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circumstances. but mr. chairman, i've listened to comments on both sides of the aisle and it's frustrating to me that we are having folks think that many of the democrats have been criticizing coming back to work. first of all, that's an offense to senators on both side of the aisle because i've talked to senators on both side of the aisle, all of us have been at work in our states, working on this crisis around the clock, do everything we can to save lives, to help us to get through this crisis. the issues we've brought up had nothing to do with us wanting to come back here to do urgent and important legislating. in fact, i've been working with colleagues on both side of the aisle just doing that. senator grassley and i introduced yesterday legislation to help our first responders who tragically die in the line of duty. he and i went to work in new jersey we've had 27 first responders, firefighters, police officers, die and we
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want to work together. we have been working together to make sure they get the benefits they deserve. this is not an issue of coming to work. all of us are doing it. it's an issue that in the midst of a global pandemic, where tens of thousands of americans are dying, where in my state more people have died in about the last month than died in world war i, the korean war and vietnam combined. this is about a time where we need the kind of leadership that calls this country to come on cause and common purpose, not partisanship. i watched in my area, 9/11, hurricane sandy, a republican mayor who i didn't like rose to that occasion, called that city and that region to common cause. i watched a governor, chris christie, during hurricane sandy, not play into partisanship, but call together in common cause. this isn't about partisanship, this is about leadership and at
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a time there's real fear in this country, health concerns, real fear in this country for our loved ones and our spouses, real fear about the economy and our economic recovery as people not only seeing folks lose their lives, but their entire livelihoods, their life's dreams, we have our first hearing not about the bipartisan accord, but even debating things there is some disagreement on, but we're having a hearing for a judge for a vacancy that's not even up until september. this is the moment where we together in a bipartisan fashion could be calling this country, talking to them about what our work really is to do. i can't communicate how deeply disappointed i am that we're sitting here with a judge that we know would strike division and divisiveness at a time we
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need unity and common focus and common cause. this is a moment to rally around our nation, to lead this planet out of this darkness and we have a role as the judiciary commitment committee to do just that. and it goes teep deeper than that, i'm coming from the inner city and we're addressing the racial disparities in this country that have been devastating lives. the chairman and i have stood together worked on things in the last bill that i'm so proud of doing, but this virus is revealing in ways that are so sobering to the heart the pra fragility of our society from the issues of domestic violence to americans living with disabilities, to our seniors in nursing home to the navajo nation right now after new york
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and new jersey is the third biggest impact, 118 days until a vacancy is open that we're talking about here and in those 118 days, thousands of americans will die. and are we talking about that? are we summoned back here to come together? the first thing we do is a nomination here in this committee talking about a judge that's divisive no matter which side of the aisle you know this is partisan divisiveness. i see data now that should give us all pause. it should make us, frankly, many of us weep who love this country. the way covid-19 has disproportionately harmed communities of color. preliminary data indicating this infection is killing black americans at staggeringly
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higher rates. 13% of your nation's population is black, but according to the data blacks account for about a third of the nation's infections, more being infected in the african-american community in this country than in many nations around the planet. and what, what does it say that we're here discussing judge walk walker. the bigger picture is this, there are so many issues we could be discussing, the health and safety of people working in correctional facilities. correctional officers who haven't been able to get the ppe that they need. prisons that have become hot beds for this pandemic. that's our jurisdiction. we're not talking about hate crimes against asian americans which are going up at astonishing rates right now. we haven't talking about our
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immigration policy. i've talked to ice officials and their safety. i could go chapter and verse, the crisis that we should be addressing that literally could determine lives lost or lives saved. i am frustrated and maybe a little emotional coming from new jersey. i look forward to the chance to submit questions for the record. i have a lot of concerns that i expressed it seems like yesterday when you were just being up for a district court position. i know of your background, mr. kennedy, i did not graduate magna cum laude, i just graduated thank you lotta, i'm out of here. he got into duke and harvard. and i was 4.2, i was a pretty
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good football player in my day. we have urgent causes that can bond you together as a committee to deal with the crisis of death and injustice, fragility and pain, going on in our country. this makes a mockery of that, sir, and i call to you, there is so much bipartisan work here we could show this country there is no red or blue states, left or right, only one way out of this progress, this crisis, by bonding together and do the things that american people look up to. i've had a difficult time explain to people in new jersey why i was leaving my state in crisis to come back here and do what? have a judiciary hearing on a person that's not up for four months. thank you, mr. chairman. >> thank you. and to the people in new
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jersey, who have been really hard-hit and i think the governor's gone a good job and you're very eloquent spokesmen for the people of new jersey, mr. booker. and thoughts and prayers with your state and hit hard. we'll do many things you talked about in the coming days. senator blackburn. >> thank you, mr. chairman and i'm coming on video. and judge walker, thank you for your service-- to-- >> we're having a bit of a hard time hearing. can we bring up the volume? >> let's see. the volume is good on my end. >> that's better. that's better. >> so wonderful. mr. walker, thank you for your dedication. coming to us today. mr. chairman, i just have to say in response to a couple of
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my colleagues that when we talk about why we're here and doing our jobs, and while we're holding this committee today, it's important to realize the u.s. senate can do two things at one time. we're all deeply concerned about the-- and we see every life that has been lost and individuals who see their livelihood lost and those that have lost their jobs and definitely dealing with that is important. it's important for us to come back to work and just as my home state of tennessee is going back to work and going back to regular order, and pushing to get that day when they're returning to normalcy, it is important that we do things, that we take the proper
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precautions, that we encourage those working on on anti-virals and vaccines and we celebrate in a free nation we have the abili ability-- in solving this problem. but at the same time it is imperative that we protect the u.s. constitution, that we can still do our constitutional duty. that we bring forward these nominees and that we hear from nominees and that we complete a portion of the senate's entire portfolio, which is being in the personnel business, making certain that the judiciary is going to be a functioning body and that should be an important part of what we are seeking to do, so i thank you, mr. chairman for holding the
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hearing today and i encourage my colleagues who continue to think more than one responsibility that we have to do still. i found it interesting, judge walker, that you were asked if you were a part of the conservative revolution and that being a conservative was couched in a tone of a negative thing. so what i would say to turn around and ask the question, is it only socialism that is acceptable. is it only a liberal viewpoint that is acceptable? or is it appropriate to be a constitutional conservative? and of course, it's appropriate to uphold the constitution.
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and we thank you, that that is a priority for you. i do want to ask you a couple of things. fisa reform is something that we're going to take up very soon and it was in 2018, wrote an article for the george washington law review warning. risk of giving the fbi too much power and you pointed out several examples where the fbi infringed on constitutional rights. so i want you to take this last minute and talk about how you balance the two priorities, protecting the american public and safeguarding individual civil liberties as a judge. >> certainly, senator. in the 2018 article which i wrote as an academic before i became a judge, i described some unfortunate chapters of our country's history where the
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fbi in the 1940's and 50's and 60's was not adequately supervised by the attorney general or by the president. and i suggested that some of the civil liberties that were violated during that era, particularly the civil liberties of racial minorities and political minorities were violated in part because the fbi was not accountable enough to the attorney general and to the president who is himself or herself accountable to the public. and i think political accountability is an important part of our constitutional structure. after all, we are a nation that fought a revolution and
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declared its independence in part because we want today make sure that the government was accountable to the people. >> thank you, mr. chairman. i yield back. >> thank you, senator blackburn. i believe that's all we have for you, judge walker. thank you. congratulations on your appointment, i think you've deported yourself well today. and the record will be may 15th for the senators to submit questions fot record. to my colleagues, thank you for participating, and to the staff who set up the room, well done. to all those in the building trying to keep us safe, we appreciate it and all those in the fight against coronavirus, you're very much in our thoughts and prayers and without you, the country couldn't operate. so with that, the hearing will be adjourned and thank you very much. >> thank you, chairman graham. >> [inaudible conversations]
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[inaudible conversations] >> a number of cases coming before the supreme court next week, on monday, whether states can prosecute native americans for crimes committed on tribal land and then whether parochial schools are exempt from federal
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discrimination laws, giving them for leeway to fire lay teachers. and tuesday the president's financial record and whether the president's personal financial record prior to becoming president can be subpoenaed. wednesday is another day of combined cases, whether time whether states can act against electoral college delegates who fail to vote for the candidates they support. you can hear next week's supreme court arguments on the c-span networks, at and listen with the free c-span radio app. >> sunday night on book tv, on after words, author tara we westover talk about growing up in the mountains with her survivalists parents. my mother, seven kids, an herbalist, a mid wife, there wasn't a lot of schooling going
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on. i never took an example. there was nothing like a lecture. >> and 10 p.m., surgeon general with his book "together" on the impact of loneliness on health. >> many peerexperiences talking with friends on the phone and then mindlessly scrolling through my feed, and google a question, and i don't need to do that, but it does dilute the conversations. science tells us clearly we cannot multi-tasking. and when we're multi-tasking, we're task switching between one thing and another rapidly and that's why i think that it's so important for us to ask the question now, how do we strengthen not only the quantity of time with people, but perhaps more importantly, the quality of time. >> watch book tv this weekend
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on c-span2. >> television has changed since c-span began 41 years ago, but our mission continues to provide an unfiltered view of government. already this year we've brought you primary election coverage, the presidential impeachment process and now the federal response to the coronavirus. you can watch all of c-span's public affairs programming on television, on-line, or listen o on our free radio app and be part of the conversation through c-span's washington journal program or social media feeds. c-span created by private industry, america's cable television company, as a public service and brought to you today by your television provider. provider. >> the united states senate is about to gavel in. they will be debating and vote on a resolution limiting military action against iran unless there's congressional authorization, this measure
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passed back in february in the senate 55-45, and in march it was approved in the house, but it was vetoed by president trump. so today's senate vote would be to override the president's veto and require two-thirds of senators to vote yes. now live to the floor of the u.s. senate here on c-span2. the president pro tempore: the senate will come to order. the chaplain, dr. black, will lead the senate in prayer. the chaplain: let us pray. eternal master, you are our strength and song. we find sustenance in your might and joy in your creation. we praise you for the beauty of the earth and the glories of the


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