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tv   MSNBC Live With Hallie Jackson  MSNBC  September 6, 2018 7:00am-8:00am PDT

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list of what documents are relevant before we hear his answers and our colleagues questions. so not only from the standpoint of there being no basis for the rules, but also to deny the fairness and effectiveness of the process, that's the reason that we're making this protest and we are here under protest. that's the reason why i asked to adjourn so that we could consider fairly all of these documents. i appreciate that senator grassley has decided to release the documents that i would have used yesterday. he's released the documents that senator booker commendably would have released even if not reclassified or redesignated, but i want to reserve the right, i here by reserve the right to release documents before any confirmation vote so that my colleagues can see what the truth is. we are literally trying to get
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at the truth here and between now and any vote on confirmation there is the right in my view on the part of every member of this committee to release documents that she or he believes are appropriate. and to delegate this decision to an unappointed and unconfirmed and largely unknown figure, bill burke, who used to work for the nominee, is the height of irresponsibility. thank you. i want to start by pointing out when this part of the discussion started last night, i was concerned that as with any witness in any courtroom or any proceeding before this committee, i want to make sure when a witness is questioned about a particular document, the witness has access to that document.
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it's not fair to the witness, the witness who has over the course of his career been involved in the creation, the authorship, the review of not just hundreds of thousands, but many millions of documents in his lifetime. it's not fair to this witness or any other witness in any other proceeding anywhere to not give the witness a copy and allow him to respond to it while he's being questioned about it. so that's why i offered to senator booker and senator booker and i had a helpful conversation with the very helpful committee staff last night and they've agreed in the meantime to release this same document that was now the subject of it. so the process worked. it works. we do have the ability to make these things available, to make them public so that we can be fair to senator booker. we can be fair to the witness, to the nominee. i do want to point out since the charge has been made that this process is somehow rigged, that it's unfair, that it's arbitrary, i completely disagree. we are not dealing with a lawless environment. we're dealing with the
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presidential records act. we've got documents that are the subject of privileges. privileges that have to be asserted. now, bill burke is the designee for that presidential administration and has the prerogative of asserting privileges. but through an accommodation with the senate, with the senate judiciary committee to allow us to gain access to other documents which we would never otherwise be able to have access, they have agreed to hand those over with the understanding we have this committee confidential process and that there are means by which we can clear documents like this one that we would otherwise not be able to clear. it worked here. it's been cleared. i think we should move forward. thank you. mr. chairman. >> senator durbin or senator feinstein, whichever one wants to go first. >> i'd defer to senator feinstein. >> i will accept it. thank you. it's my understanding that by
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agreement with private lawyer bill burke the chairman has designated 190,000 pages of kavanaugh's records committee confidential and by doing this republicans argue members can't use these documents at the hearing or release them to the public. unlike the intelligence committee, and i've been a member for about two decades, the judiciary committee doesn't have any standing rules on how and when documents are designated committee confidential. previously the judiciary committee has made material confidential only through bipartisan agreement. that has not been done in this case. so this is without precedent. republicans claim that chairman leahy accepted documents on a committee confidential basis. it's my understanding that those
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documents were processed through the national archives, not private partisan lawyers and republicans agreed. 99% of kagan's white house records were publicly available and could be used freely by any member. by contrast, the committee has only 7% of brett kavanaugh's white house records. and only 4% of those are available to the public. no senate or committee rule grants the chairman unilateral authority to designate documents committee confidential. so i have no idea how that stamp committee confidential got on these documents. i sent a letter on august 10th, 2018, objecting to the blanket designation of documents as committee confidential.
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i offered to work with the chair. he refused. judiciary democrats sent the chairman a letter on august 28th restating the objection to the chair's designation of the documents as committee confidential and requesting public release. as i've looked at the documents that are committee confidential, they do not affect any of the usual standards that would deny committee confidentiality and mr. chairman, i think that's a problem. i think we're entitled to all records and i think the public is entitled to all records that are appropriate and do not put forward personal information or information that otherwise should not be disclosed. so i do think we have a problem
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and i think for the future we ought to settle that problem with some kind of a written agreement between the two sides. whether that's an agreement between the two sides of the entire committee or between the chairman and the ranking member. i think it doesn't matter much. but i think the fact is that we should agree on who determines something is committee confidential. what the criteria are for. and the release to the public and particularly in the event of a supreme court hearing. >> senator durbin. >> thank you, mr. chairman. like my colleague senator whitehouse i don't want my silence to be a consent to the process we've faced. it is unlike any process i have ever seen. this designation of committee confidential should be put in historic context.
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there will be an opportunity for us later this afternoon to meet in confidential and secret private session to discuss this nominee. that is not unusual. it is done for virtually every nominee. some of the meetings are literally last a matter of a minute or two and we say there's nothing to talk about and we're leaving. but it's happened in the past. whenever we dealt with committee confidential, it was something very specific and usually very personal to a nominee. and it was done bye-b bipartisa agreement we would protect the nominee from assertion or comments that may not have any truth to them whatsoever but the committee should take into consideration. that is a far cry from what we have faced with this nominee. i cannot understand and i said this on my opening statement here, the authority that we have given to a man named bill burke, former assistant to the nominee. that we have said to mr. burke, you will decide what america gets to see about brett kavanaugh. you will make the decision as to which documents we will be
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allowed to discuss openly and publicly and which documents we cannot. who is this man? by what authority could he possibly be denying to the american people information about a man who's seeking a lifetime appointment to the highest court in the land? the national archives is usually the starting point of this process. i put in the record yesterday a statement from the national archives disavowing this whole process saying this is not the way we have done this in the past. we usually initiate this, please give us a few weeks to do it in an orderly way. the decision was made by the white house and the administration not to go down that path. not to take the same course we have on previous nominees. but instead to allow to this gentleman, bill burke, a private attorney, the authority to decide what the american people can see about the background of brett kavanaugh in other capacities. who is bill burke? all they know of him is he was
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once an assistant to the nominee. i am told that he is not only the attorney for george w. bush, but also for the white house counsel mr. mcgahn, mr. priebus, the former chief of staff to the president of the united states and staeve bannon, a man whom i couldn't characterize in few words. in this situation, he is now the filter to decide what the american people will see about this nominee. and that's why we bring this issue before you. lest you think we are -- we are talking about whether the american people have the right to know. and we now know that less than 10% of the documents reflecting the public career of mr. kavanaugh have been made available to this committee. and i just want to say to my colleagues, particularly my colleague from new jersey, i completely agree with you. i concur with what you are doing. and let's just into this
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together. i hope my other colleagues will join me. so if there is going to be some retribution against the senator from new jersey, count me in. i want to be part of this process. i want to understand how bill burke, this private attorney, has the right to say as one of my colleagues mentioned this should be considered a classified document. a top secret document. a document that relates to the national security of the united states. by what right? by what authority can mr. burke possibly designate a document as committee confidential? he has no authority to do that. he only has authority because he has the consent and the cooperation of the republican majority on this committee. that is the only thing that brings us to this moment. and let me just say in closing one last thing. i am sorry that one of my colleagues has characterized all of us on the democratic side on the first day of this hearing as contemptuous. i have never heard that said
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before in a full committee meeting. but it's been said. and i'm particularly sorry that he singled out one of our colleagues on this side and accused him of conduct unbecoming a united states senator. i think statements like that are personal. they are disparaging. they question the motive of a colleague, something that we should do our very best to avoid in the united states senate if we're ever going to restore the reputation of this body. >> mr. chairman, may i make a brief point? mr. chairman, i'm looking at a "wall street journal" article back during the kagan nomination. it says document production from kagan's years in the clinton white house, counsel's office of the supervised by bruce lindsey whose white house tenure overlapped with ms. kagan. bill clinton designated mr. lindsey to supervise records from his presidency in cooperation with the national archives and records administration under the presidential records act.
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so president bush by choosing mr. burke is doing exactly what president clinton did in choosing bruce lindsey for that same purpose. >> mr. chairman? i thank my colleague. count me in too. mr. chairman, i, too, referred to a so-called committee confidential document deemed such by one bill burke and what we all know who he is at this point. and had the nominee asked me for a copy of that so-called committee confidential document, i would have been happy to release it to him or give it to him. i am releasing that document to the press. and i would defy anyone reading this document to be able to conclude that this should be deemed confidential in any way, shape, or form.
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thank you. >> mr. chairman, i know you've mentioned a number of times that i went through the process. i do want to point out, however, that i also was on numerous letters asking for all these documents to be released and that my colleagues have repeatedly asked for documents to be released. i go back to what happened on the first morning of this hearing and that is that we pointed out that when there are 42,000 documents that are dumped on us in one night, there is absolutely no way people are going to be able to adequately review them and as they review them they're going to find documents that they want to be made public that they want to ask the nominee about. so to look at these documents, we are where we are. my remedy for this in addition to making it clear that i join
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my colleagues that we support what senator booker is doing here is that you must somehow expedite the review of every single document and we must have some kind of rules in place to get them out. i understand you'd want to take out social security numbers and things like that. that's normal. but we simply cannot hide these documents from the american public. t it is the highest court of the land. looking back, everyone was citing people, the founders of this country, and i found a quote that really works here. a popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy. that's what we're talking about here. by ramrodding this through for political reasons, by denying us the access to the documents, we're denying the public the right to see what's out there. and it's just not how we do
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things in my state and it's not how we've done things in this committee. >> mr. chairman. >> i'm going to call on senator lee and then you, but before that, a couple things she just reminded me of in her comments. number one was to take care of all the people that didn't act promptly like you did, senator. that's why we extend today and gave the course stesy of doing everybody else wants now. those can either be brought up. those that you've got can be brought up right now to him. and the things that you -- that aren't clear that you want to bring up with the judge you can bring up in the closed session today. the other thing is when you talk about getting all the documents, i don't know who might work for members of this committee sometime want to be on the supreme court and for instance, would you -- we didn't ask for all the documents that kagan had
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in e-mails or whatever communication she would have had when she worked with senator kennedy. would you want to be exposed to that sort of thing? if you want everything to be made public or all the e-mails that you have, whether i think they're protected for 50 years for a united states senators. so you're talking about the public right to know, do you want to give up your e-mails right now? make them public? i don't think you do. senator lee. >> first of all, mr. chairman, i want to see i'm deeply sympathetic to the frustration people feel when they don't have access to documents they want. as a united states senator i face this on a number of occasions. there have been times when we've been called upon to vote on legislation literally at the midnight hour, sometimes much later than that that we haven't seen until moments before it was voted on. there have been other times and i kid you not, when i've been asked to vote on a piece of legislation that has an annex and i'm told i can't see the annex to the legislation because
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it's classified and i don't have access because of a committee assignment i do not have. it's incredibly frustrating. we look for demons. there are demons in those too many to name. this demon is a law of our creation. it's called the president's records act. that's the demon you're after here. that is the only reason we've got this issue. now, the custodian of those documents holds and exercises a privilege on behalf of the bush administration. these are documents we would otherwise not have access to because they are privileged. pursuant to an agreement with the senate as an accommodation to the senate, the custodian of those records has agreed notwithstanding the nature of those documents to hand them over to us with an understanding when there is a need arises with respect to one or more of those documents, to make them public we can as a committee go through a process to do that.
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that the is exactly what has happened. it's what has worked. it's what has worked here today. so if you're frustrated with the process, let's review the presidential records act, but we're just doing what the law allows us here to do. these documents are not ours. they belong to someone else. it is not written into the constitution. it's not written on stone tablets anywhere that we're entitled to documents that don't belong to us. it's significant that william howard taft doesn't release his presidential papers. howard jackson having served as attorney general doesn't release all the papers he had as attorney general. why? i assume it had to do with the fact they didn't belong to us. if we want to be able to have a process not just with this administration but in every presidenti presidential discrimination, democratic, republican, we need to respect the process and respect the privilege that is
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according to documents that do not belong to us. that's all we're asking. and the process is working. let's move forward. >> mr. chairman, on behalf of this side, i would like to just say a couple of things. there is no process for the committee confidential. it used to be that both sides had to concur. the chair and the ranking member. but now this is just simply not the case. to some extent with this kind of thing, committee confidential becomes a kind of a crock and it shouldn't. i think we need to sit down. i think we need to have a rule on how committee confidential is determined, on what it means, and who makes that decision. for all i know, some respect staffer could have made the decision. and i just don't know.
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documents appear. our side had nothing whatsoever to do with the designation of committee confidential. so it becomes a way, if there's no rule, for the majority to essentially put all information through a strainer. should we let this go out and be public or should we not? and i don't think that's what this committee is about. >> mr. chairman? >> you know in the absence of a majority of committee opposed the chairman acts on behalf of the committee and chairman leahy accepted documents on a committee confidential basis during justice kagan's nomination and there's no indication that the ranking member agreed to that at that particular time. >> thank you, mr. chairman. two quick points if i could. first the question has been raised whose documents are these?
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these are the american people's documents. the presidential records act gives us a right to obtain them for a supreme court nomination after the review of the professionals at the national archives and bill burke is not a professional at the national archives. the archives has said this is not their process. equally importantly, because some will now make dire predictions about the appropriateness of the release of any of these documents, bill burke himself in his letter to us of august 31st said, and i quote, that presidential records act exemption one which protects against the disclosure of classified information did not apply to any documents our team reviewed. i agree with senator booker. this confirmation is too important for us to conceal documents that may reveal the nominee's views and i think we shouldn't be proceeding under these grounds. >> mr. chairman? >> hold on. >> may i be recognized? >> i hope you don't say the same thing. >> sir, i will not. i will say something they haven't said which is i
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appreciate the patience of jobe that you're showing. i also want to say the reputations from senator kennedy and senator lee were right on point. they stood strong last night, challenged me. they looked to find a fairway to deal with this process and i want to express my appreciation. i want to clarify something that i said before. there is no senate rule that accounts for this process, period. this is not a senate rule. i did not violate a senate rule. i will pause. there is no senate rule that i violated because there's no senate rule that accounts for this process. and i say to a chairman that i respect, that i believe has been fair and good to me, i will say that i did willingly violate the chair's rule on the committee confidential process. i take full responsibility for violating that, sir. and i violated it because i
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sincerely believe that the public deserves to know this nominee's record. this particular case, his record on issues of race and the law. and i could not understand and i violated this rule knowingly why these issues should be withheld from the public. i appreciate the comments of my colleagues. this is about the closest i'll probably ever have in my life to an i am spartacus moment, my colleagues have they accept the responsibility. there are various charges made against me by my colleague from texas. i don't know if they were political bluster or sincere feelings. if what he said was sincere, there actually are senate rules governing the behavior of senators. if he feels that i and my fellow colleagues who are with me have violated those rules, if he sent a tempest in a tea pot but believes that, then bring the
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charges. go through the senate process to take on somebody that you said is unbecoming to be a senator. let's go through that process. because i think the public should understand that in a moment that somebody's up for a lifetime appointment, that this issue does the public have a right to know. this is not about the president's records act. this is not a violation of the president's records act. not a violation of senate rules, sir. but if somebody's going to land those charges, i hope that they will follow through with me and senator durbin, senator coons, senator whitehouse, now senator feinstein, i hope they will bring charges against us and i am ready to accept the full responsibility for what i have done, the consequences for what i have done, and i stand by the public's right to have access to this document and know this
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nominee's views on issues that are so profoundly important. like race in the law, tor fture and other issues. >> mr. chairman, may i read the senate rule 29.5, the standing rules of the senate for the benefit of all senators? any senator, officer or employee of the senate who shall disclose the secrets or confidential business or proceedings of the senate including the business and proceedings of the committees, subcommittees and offices of the senate shall be liable if a senator to suffer expulsion from the body and if an officer or employee to dismissal from the service of the senate and punishment for contempt. >> bring it. >> so i would correct the senator's statement, there is no rule. there is clearly a rule that applies. >> then apply the rule and bring the charges. >> all of us are read to face that rule on the bogus
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designation of committee confidential. just because there is a senate rule doesn't mean it can be misapplied or misconstrued or misused. i think even the threat raised by one of my colleagues here is unfortunate. and that is a kind way of putting it with all due respect. i would make one other point. we're dealing here with a lifetime appointment. nothing we do here is more serious than confirming a justice on the united states supreme court. let the american people appreciate that we are here in the most solemn responsibility we have under the constitution. we need the full truth. just as this nominee is sworn to give it to us, we are entitled to it from our colleagues. and the question is, what are they concealing by this procedure? what are they afraid the
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american people will see? what are they afraid we would be asking of this nominee if we had all of those documents that have been denied us in this sham and charade. >> senator lee, and then senator tillis. >> to senator booker's point, the document you are talking about has now been aproved. it's been made public. the process worked. i pledge to work with each and every one of you. if you've got a document as to which a privilege has been asserted, i'll work with you. we can do this. it's not that difficult. we've done it several times at least three times. we can do it more. the privilege thing is real, though. this is not our privilege we're dealing with. this is the privilege that belongs to somebody else. the privileged nature of documents has been around for a long time. since the early days of the republic. the records, the notes of the
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constitutional convention were ordered sealed for 30 years after the constitutional convention in 1787. i'm not sure the reasons why, but those who participated decided that was going to be the rule. sealed 30 years. those documents didn't belong to anybody else. it belonged to those who attended that convention and participated in it. there were at least two from that list who were subsequently nominated to serve on the united states supreme court. no one demanded to my knowledge and no know could have gotten, notwithstanding the 30 year seal agreement, the notes to the constitutional convention, even though those certainly would have been probative as to how the people might have served on the supreme court. in one was accusing the united states senate of being a rubber stamp for the washington administration. in 1795 the united states senate disapproved of at least one of president washington's supreme court nominees. this was no rubber stamp.
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yet they respected the fact that they didn't own every document. that other people might own them. we don't own these so we have to go through the process. a process ordained by a law that we passed and that only we have the power to change. let's follow that law. we can follow the law and respect the process and respect the rights of each of our colleagues and the rights of the american people to review documents that might be relevant here. but let's go through the appropriate process to do it. >> mr. chairman -- >> i think i thought to be fair to the republicans. >> i think you should too. >> go ahead, senator tillis. >> thank you, mr. chair. mr. chairman, i took nearly 17 years to get my cleollege degre. i went to five zrcdifferent institutions. i'm sure none of them have been elevated to the ivy league. i don't ever plan on running for president in 2020 or the near future. i want to make one more comment and then one request. the comment as i hope everybody
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will record a transcript of what's going on right now. senator lee explains things i think in eloquent legal terms, but let's talk about the consequences of making this an untrusted body to receive documents under the presidential records act. you may rue the day you do that because you'll probably get fewer documents in the future. what i would like to do is ask all of our members to perhaps we can actually demonstrate to the american people that we're prepared to expose our own records. i would like to suggest for the purposes of this nomination that all of us wave any right to the speech and debate clause and that we allow all of our e-mail records related to this scotus nomination make them immediate. i'm ready to sign up and hope others would do the same thing. in the interest of transparency, certainly it would make interest for every one of us, regardless
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of what we want to do in the future, to expose that information to the american people. >> are you done? i'll start with my questioning. by the way, we're going to have to protect -- soev ge everybody an opportunity to look at the fbi and everything else, at 1:00 we're going to have to go into executive session and get that done before if the senate does close down at 2:00. i mean, if they don't give us permission to meet after 2:00, we've got to get that out of the way, so we'll do that at 1:00. >> may i just put a document in the record? >> mr. chairman, would you yield to a question about procedure? >> i used the wrong word closed. we're talking about executive -- closed instead of executive session. so -- >> would you yield to tai
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questi -- a question about a procedure? >> go ahead. >> would you explain to me why we're having to truncate the hearing today? >> i'm not sure we do have to truncate it. it would be because the minority may object to the unanimous consent request the leader would make for this committee to continue to work while the senate is in session. >> let me be sure i understand. senator schumer is saying that we have to shut down while the senate is in session? do we not generally wave thive rule. >> generally it is waived. we want to make sure we get the executive -- the closed session out of the way. >> may i ask why senator schumer is doing that? >> i don't know. >> we have a nominee to the supreme court of the united
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states. we've all talked about transparency. what is his basis for doing that? >> you'll have to ask him. i don't know. >> if i may, i would just like to put a document in the record that the committee was told that president trump has decided to withhold 102 pages of kavanaugh a white house counsel records. 102,000. what did i say? >> 102. >> thank you. 102,000 of the white house counsel records and has asserted a privilege of white house counsel privilege. i'm told there se no such privilege. it requires the president to notify congress and the archivist which was not done here. there's more to it but i'd like to put in th this in the record
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>> without objection it will be put in the record. judge kavanaugh, we've heard a lot yesterday about your record of independence and impartiality and you've talked more about your independence and impartialiimpartia impartiality. by my account you ruled against executive branch agencies 23 times between may, 2006, january, 2009. of course president bush was nominated -- who nominated you to the bench the head of the executive branch. you had no problems ruling against the president who appointed you. if that's what the law required. and i have no doubt that you'd do the same on the supreme court if that's what the law requires. you've demonstrated your impartiality. some of my colleagues tried to depict you as hostile to the little guy and always welling to rule for the powerful. but your record shows that you rule for the party that has the
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law on their side. so that makes you out to be not pro plaintiff judge or pro defendant judge, but to be a pro law judge. let me ask you about a few cases. after all our aspirations as americans is equal justice under the law. { shouting } >> shame, shame, shame. >> so i'll ask you to on each one of them, but just so you know, the three cases i'm thinking about is rosalla,
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excess insurance. in the first one you ruled for the women wrongfully denied social security benefits. tell us your approach to that case. >> this case, mr. chairman, was a case in which the social security administration had denied benefits -- { shouting } >> it was a case where the social security administration had denied benefits to a woman who had a history of mental illness and they had done so because at one point in time she had been employed for a brief period of time with the family member, but it had been sup
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subsidized. the case had gone on for 15 years, was kind of a hall of mirrors for the woman and we wrote an opinion. i wrote an opinion reversing the denial of benefits for the woman and also making clear to the social security administration that any further delay would not be tolerated and that these kinds of delays in denying benefits to people with mental illness were unacceptable. >> let's go to insurance company case. { shouting } >> essex insurance. >> it was a case of a child's family and an insurance company and the child had been the victim of sexual abuse and the -- on three occasions and the insurance company was trying to pay out simply $100,000 for
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the total number of -- for the abuse and the insurance policy said $100,000 for each occurrence in essence and we ruled that the insurance company had to pay $100,000 for each occurrence, each incident of the abuse and therefore a total of $300,000. in that case we ruled and i wrote for a victim of abuse against an insurance company that was seeking to squeeze the benefits that were paid under a policy that was owed to the plaintiff in the case. >> then the last one would be united food and commercial workers. >> that's a case, a union case against walmart and the case came from the nlrb and the question was whether walmart had engaged in unfair labor practices against a union in that case. that case we ruled for the union
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against walmart in that case on the ground that the factual record supported the conclusion that the company had engaged in unfair labor practices and therefore violated the rights of the union members. >> now to something that i believe i've discussed with every nominee to the supreme court probably for the last 15 years, it's not about a case or your approach to the law. it's something that senator kennedy talked to you about yesterday. it isn't a very popular subject with some of the current and former justices. i think i make chief justice roberts uncomfortable when i raised the issue with him when i speak for a short period of time at the judicial conference and then when justice suit or was o
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the supreme court he made a quip about television cameras they'd have to rollover his dead body. i can respect that view. i think it's wrong. i and many of my colleagues on this committee believe allowing cameras in the federal courthouse would open the courts to the public and bring about a better understanding of the court and its work. you may be aware of that for a number of years i've sponsored a bill, the sunshine in the courtroom act which gives judges the discretion to allow media coverage of federal court proceedings. would you keep an open mind on cameras in the courtroom or if you have strongly held views on it don't be afraid to tell me. >> mr. chairman, i appreciate your longstanding interest in the issue and transparency for the courts, of course. i'll tell you what we've done on my court briefly and then tell you some general thoughts going forward if i were to be confirmed. on our court we've gone from audio release at some date late -- much later.
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then we went to audio release same week. then we went to audio release same day. and now we are allowing audio to go out live with the oral arguments. that process has been one in which the judges have learned experienced and become comfortable with the additional transparency that's become in the same time odd overovaudio o and that process has worked well in our court. on the supreme court i think the best approach for me is to listen to the views of people like yourself, mr. chairman, and others i know who are interested in that, to learn if i were to be confirmed from the experience there and to see what the experience there is like. to listen to the justices currently on the supreme court. as i've said, be part of a team
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of nine. i'd want to learn from the other justices what they think because several of them as you well know when they were in my seat expressed support for the idea of cameras for oral arguments and then when they were there for a few years switched their position after experiencing it. i'd want to talk to them why they position. as i said to senator kennedy last night, i'd want to think about the difference between oral argument and the actual announcements of the decisions. i think those are two distinct things. there hasn't been much focus on the possibility of live audio, for example, of the decision announcements or video of the decision announcements. i think that's a distinct issue from oral arguments and i'd be interested in thinking about that and talking to my colleagues if i were to be confirmed. i will have an open mind on it. i do think when you attend oral argument at the supreme court as i have many times or you attend the announcement of decisions, it is extraordinarily impressive to walk into that building and
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the majesty of that building. the billing itself conveys the stability and majesty of the law and to go into the courtroom and to see the justices working together as they do to try to resolve cases is extraordinarily impressive. it makes you confident, i believe, in the impartial rule of law and in each member of the supreme court to see them in action. and so i do understand your point of view on this and i would certainly keep an open mind on it and listen to you and listen to the other justices on the court of course. >> thank you, mr. chairman. i'm going to go back to roe because most of us look at you as the deciding vote. i asked yesterday if your views on roe have changed since you
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were in the white house. you said something to the effect that you didn't know what i meant. we have an e-mail that was previously marked confidential but is now public and shows that you asked about making edits to an op that red the following. first of all it is widely understood, accepted by legal scholars across the board that roe v. wade and its progeny are the settled law of the land. you responded by saying i'm not sure that all legal scholars refer to roe as a settled law of the land at the supreme court level since court can always overrule its precedent and three current justices on the court would do so. this has been viewed as you saying that you don't think roe is settled. i recognize the word said is
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what legal scholars refer to. so please once again tell us why you believe roe is settled law and if you could, do you believe it is correctly settled? >> so thank you, senator feinstein. in that draft letter, it was referring to the views of legal scholars and i think my comment in the e-mail was that might be overstating the position of legal scholars. so it wasn't a technically accurate description in the letter of what legal scholars thought. at that time i believed chief justi justice rehnquist and justice scalia were still on the court but i think it was overstating something about legal scholars and i'm always concerned with accuracy. i thought that was not quite accurate description of all legal scholars, because it referred to all. to your broader point, roe v.
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wade is an important precedent in the supreme court. it's been reaffirmed many times. it was reaffirmed in planned parenthood versus casey in 1992 when the court specifically considered whether to reaffirm it or overturn it. in that detail the three justice opinion went through all the factors, analyzed those and decided to reaffirm roe. that makes casey precedent on precedent. it's been relied on. casey itself has been cited as authority in subsequent cases. so that precedent on precedent is quite important as you think about it in this context. a similar analogy, the united states versus dickerson case in
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2000 where the court considered whether to overturn miranda versus arizona or to reafifirm it. in that case through chief justice rehnquist specifically we affirmed miranda zbidespite fact he had been a critic of miranda in the early days and had written opinions of it quite critical. that dickerson case is similarly precedent on precedent which is important going forward as you think about the stare decisis calculation. that's why both of those cases, planned parenthood versus casey and dickerson are cases where i would refer to them as precedent on precedent. >> so you believe it's correctly settled but is it correct law in your view? >> senator, on that case or on dickerson or on cases like
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citizens united or heller or united states versus lopez, just the whole body of modern supreme court case law, i have to follow what the nominees who have been in this seat before have done. >> judge, a yes or a no will do. >> just if i can briefly explain. >> yes, you. >> i'll try to be brief. when you're in this seat, i'm not just sitting here for myself. i'm sitting here as a representative of the judiciary and the obligation to preserve the independence of the judiciary, which i know you care deeply about. one of the things i've done is studied very carefully what nominees have done in the past where i've referred to as nominee precedent. and justice ginsburg, but really all the justices have not given hints or forecasts or previews. justice kagan captured it well as she often does in talking about the questions you're asking, you can't give a thumbs up or thumbs down and maintain the independence the judiciary.
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i need to follow that nominee precedent. >> mr. chairman, can i ask the e-mail at issue be made part of the record. >> pardon me? >> i'd like to ask that the e-mail at issue be made part of the record. >> we'd be happy to do
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he was -- he had a different view than president bush on that issue. she had some work for president clinton. i consider myself working for president bush. i was there to assist him. >> let me go to torture. during the time you worked in the white house, the office of legal counsel concluded that harsh interrogation techniques were legal even though congress had passed a law in '94 banning torture. the office of legal counsel took a sweeping view of presidential
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power and concluded that the president could override the statute. in response in 2005 the congress adopted an amendment championed by our colleague, senator mccain. i was the co-sponsor that stated that only interrogation techniques that can be used are those authorized in the army field manual. >> they subsequently withdrew those memos. the president does not have the authority to disregard statutes passed by congress regulating the war effort except in certain
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very narrowly cited troops in battle. so as a general proposition the president has to comply with the law. the president is subject to the law including in the national security context. that is the lesson i think of the youngstown steel case of justice jackson's categories. category 3 as i've said repeatedly in my writings which is where congress has prohibited the president from doing something. it's critically important that it's crucial to the rule of law as justice jackson said. that's the equilibrium of the country is at stake in category three and i've written about that quite frequently. >> got it. thank you. today we have a president who said he could authorize worse than water boarding. how would you feel about that? >> senator, i'm not going to comment on -- and don't think i
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can sitting here on current events. >> well, you know what the law is. you've made that clear. >> i know what the law is. >> i asked specifically, how do you feel about that? >> i feel that i should follow the law as a judge. i know what the law is and i know your leadership on this issue, both with the report you did, which was the thorough documentation of things that happened as well as recommendations for the future, and i know your leadership with senator mccain on the 2005 act as well and i know what the law is and i've written about the -- how the separation of powers works when congress passes laws of the kind that you have. >> one last question on this. in december of '05 president bush authored a signing treaty on this reserving the president's right to disregard that the law's ban on torture --
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disregard the law's ban on torture if it interfered with his constitutional authorities as president. what was your involvement, if any, with this signing statement? >> while i was staff secretary any issue that reached the president's desk, with the exception of a few covert matters, would have crossed my desk on the way to the president's desk. i wouldn't have provided the policy advice but it would have crossed my desk. the signing statements would have crossed my desk at some point. >> in a 2013 panel discussion as -- well, you did nothing about it though. it crossed your desk and that was that. >> there was debate as i think i've mentioned about that. the counsel to the president was
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the ultimate advisor on that matter for the president and thus would have been the one who primarily dealt with that with the president. it was important in the job i had there not to supplant the policy or legal advisors. that was not my job. my job was to make sure the president had the benefit of the views of his policy and legal advisors. in a 2000 panel discussion regarding bush antiterrorism policies, you said the bush administration went, quote, right up to that legal line to defend security of the united states implying that bush policies did not cross the legal line. do you mean to suggest that the post 9/11 programs including the cia torture program were not
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legal? >> no, senator, that's not what i was suggesting there. let me try to provide you an expla igs na. president bush's view in trying to keep america safe he was going to do everything he could within the law. he relied on his lawyers to provide the boundaries of what the law is and then he would go up to that line of what he thought was effective as a matter of policy. it was up to the lawyers, therefore, to make sure that they were giving sound advice and having the backbone, this is something that your legislation reinforces. lawyers need to have backbone, even in pressurized cases to say no. one of the most important responsibilities of an executive lawyer in the passions of the moment, where the pressure is on, where the president wants to do something perhaps is to go into the oval office and say, no, you shouldn't do this. that's something that i've written about, talked about and experienced in my time with
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president bush and i've encouraged young lawyers to have that backbone and fortitude to say no. that's about the most important thing. >> thank you. a quick change of subject. you sat on a case where a train er, dawn brancho was killed with a killer what i wi eer whale. following that osha found they violated work force laws. the majority agreed with the agency that seaworld had violated the law. according to what i know, you disagreed. in your dissent you argued that the agency lacked the authority to regulate employers to protect participants in sporting events or entertainment shows, however, the statute as enacted applies to each employer and a it
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defined employer as anyone engaged in business effecting commerce who has employees. where in the text of the law did congress exempt employers of animal trainers? >> thank you for the question, senator. the first point i want to make is that was not a case that involves potential compensation to the family. that was handled through the state tort system or through insurance or through a settlement with the seaworld and the family. so the case before us had nothing to do with compensation of the family, it had to do with a separate regulation of seaworld. the issue, senator, was precedent. i follow as a judge, i follow precedent. the precedent of the labor department as i read it was that the labor department under the statute would not regulate what it called the intrinsic qualities of a sports or entertainment show. so lots of sports and entertainment shows have serious dangers, whether it's football or the balance beam in
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gymnastics or the high wire act at the circus or the lion tamer show and the seaworld was, as i saw it, of a piece under that precedent that said the labor department would not regulate, for example, whether baseball helmets had to have ear flaps or whether to prohibit the punt return or to make the balance beam have nets. and this seemed to be covered by that precedent as i saw it. the labor department and the oral arguments tried to distinguish, for example, the dangers of football from the dangers of the seaworld show and i did not, as i explained in the opinion, find that distinction persuasive, but i did make clear two things, senator. one is congress could, of course, regulate the intrinsic -- congress could make the decision to regulate the intrinsic qualities of the shows or the labor department could change its precedentnd


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