she was then professor kagan. i think she was referring to the concept of independent agencies generally. so the humphries executor on one of the cases. [ protester heckling ] >> i think she's referring there, at least i read her as referring there to independent agencies are traditional and permissible. this is different from the traditional agency that's existed with the federal trade commission, the securities and exchange commission. so i did not read her old article to in any way -- >> let's put it this way, she may have complimented scalia's dissent in the writing or holding. you criticized the independent counsel statute as a constitutional travesty. i'm simply trying to get to the bottom of why you held that view and why you chose to say that in a speech just two years ago? >> well, it was morrison v. olson was a one off case about a one off statute that hasn't existed for 20 years. the statute is gone. i read that many times in speeches i've given. but that statute, it's real important to be clear here, i

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so -- i asked elena kagan about a statement that greg craig made. do you know greg craig by any chance? >> i've met him. i haven't seen him in many years. >> he was the -- one of the defender's of president clinton during the itch peampeachment h and somewhere in here -- i've got greg craig's statement about kagan. no. i'm looking for the greg craig statement. here we go. here's what -- kagan was a progressive in the mold of obama himself. alana kagan is clearly a legal progressive and comes from the progressive side of the spectrum according to ronald klein, the first was greg craig, and i had an exchange with justice kagan when she was the nominee. i'm not trying to trick you. i don't have anything on brick. he said on may 16th you're a largely progressive in the mold of obama himself. do you agree with that? ms. kagan, senator graham, you know in terms of my political views i've been a democrat all of my life. i worked for two democrat presidents, and that is what my political views are. then i asked, would you consider your political views progr

i was chairman when elena kagan was here. we had 99% of her records from the white house were made public, 12 days, 12 days before the hearing. with judge kavanaugh, we have 7%, and only 4% are public. you can talk about the numbers of pages, the fact is, 99% for elena kagan, 12 days before the hearing. it was all available. for judge kavanaugh, 7% and only 4% made public. so you know if we're going to argue what was precedent, i would point out that i've been in the senate for 19 supreme court nominations. what is being done here is unprecedented. and i keep coming back to the same question i ask -- what are we trying to hide? what are we hiding? what's being hidden? why not have it open like all others? the only other time we heard a president invoke executive privilege, was president reagan during the justice william rehnquist hearing. and republicans and democrats together went to him and said -- don't do that. he said okay. you're right. and he withdrew his request of executive privilege. and released the documents. i --

we declined to demand justice kagan's solicitor general documents. similarly -- senator, do you still want to speak? i will go back and forth. i want to correct something that the chairman just said. >> is my motion and order? sen. grassley:'s motion is in order, could you hold for two speakers? >> sure, as long as i won't lose my place. sen. grassley: you want. dimension president reagan -- you mentioned president reagan. simply can'te accept in letter approval. -- i recall does very well because i was in those discussions. president reagan said ok, you want it, this was on the nomination. we were given it. i also note that one republican onceoted for the injustice he saw the -- for the justice once he saw the records, he voted against justice rehnquist. we did not have an executive privilege there because president reagan, when this committee did what it should do, republicans and democrats together saying you serve executive privilege. president reagan said you are right and withdrew the request. our motion to subpoena the 100,000 documents as wel

justice kagan when asked about roe v. wade said the following, quote, i do not believe it would be appropriate for me to comment on the merits of roe v. wade other than to say that it is a settled law, entitled to precedential weight. the application of roe to future cases and even its continued validity are issues likely to come before the court in the future, end of quote. senators were satisfied with these answers on precedent. so, senators, should be satisfied if judge kavanaugh answers similarly. this is my 15th supreme court confirmation hearing since i joined the committee in 1981. 31 years ago, during my fourth supreme court confirmation hearing, liberal outside groups and their senate allies engaged in unprecedented smear campaign against judge robert bourque. as mark mullpullium said in an ed, the borqing of robert bourque showed they could demonize solely on their world view. worse character assassinations proved attacking nearly justin thomas' appointment four years later. he also said, continuing to quote, by

presidential administration by justice kagan. then professor kagan. she was referring to the concept of independent agencies general. the humphries executor -- [protesting in the background]. i think she's referring there -- i read her as referring to independent agencies are traditional and permissible. the independent counsel statute is different from the independent agencies that existed with the federal trade commission securities and exchange commission. i did not real her old article to in any way -- >> let's put it this way. justice kagan may have complimented scalia's dissent. you criticized the independent counsel statute as a travesty. i'm trying to get to the bottom of why you held that view and said it in a speech two years on. >> olson, was a one-off case about a one-off statute that has not existed in 20 years. the statue is gone. the case as justin kagan -- i took my lead from her comment. i cited her comment many times in speeches i have given. that statute is real important to be clear here and you know this so everybody understands,

justice kagan when asked about wade said the following. "i do not believe it would be appropriate for me to comment on the merits of roe v. wade other than to say that it is a settled law entitled to precedential weight. the application of row to future cases and even its continued "i do not believe it would be appropriate for mevalidity are o come before the court in the future." senators were satisfied with these answers on precedent. so senators should be satisfied if judge kavanaugh answers similarly. this is my 15th supreme court confirmation hearings since i joined the committee in 1981. my fourthgo during supreme court confirmation hearings, liberal outside groups engagedr senate allies in unprecedented smear campaign .gainst judge robert bork as mark pulliam said in an op-ed over the weekend, the barking of robert bork taught special interest groups that they could demonize judicial nominees based solely on their worldview. worse, character assassinations ,roved an effective tactic nearly sinking justice clarence thomas's appointme

justice kagan when asked about row v. wade said the following, quote, i do not believe it would be appropriate for me to comment on the merits of roe v. wade other than to say that it is settled law entitled to presidential wait. the application of roe up to future cases and even its continued validity are issues likely to come before the court in the future, end of quote. senators were satisfied with these answers on precedent. so, senators should be satisfied if judge kavanaugh answers similarly. this is my 15th supreme court confirmation hearing since i joined the committee in 1981. 31 years ago during my fourth supreme court confirmation hearing liberal outside groups and their senate allies engaged in unprecedented smear campaigns against judge robert bork. as mark said in an op-ed over the weekend, the borking of robert bork said they could you dishi judicize nominees based on their vo vote, nearly seeking the justices appointment four years later. but he also said by affirming judge kavanaugh, the senate can go som

and justice kagan -- as justice kagan said, that's what she meant, we are all originalists now. i think she said what she meant and meant what she said when she said that. >> what would be the argument against that? to me that sounds like judging. what would one argue against that being that type of judge, against being a textualist originalist? >> well, different philosophies of what a judge does. but i think the judges, you know, with what the role of a judge is. i think article 6 of the constitution says this constitution shall be the supreme law of the land. the word law is very important there. it's not a set of aspirational principles. it's a law that can be applied in court. what is the law? the law are the words that were ratified by the people and, therefore, can be applied in the courts of the united states. and it says the spleem law. what does it mean by that? when you pass a statute, that is inconsistent with the constitution, the supreme law controls, namely, the constitution controls over a contrary statute. that's of course discussed in federalist 78 as well of w

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. 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. 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 let

and justice kagan -- as justice kagan said, i think that's what she meant, we're all originalists now, and i think she said what she meant and meant what she said when she said that. >> what, by the way, would be the argument against that? to me, that sounds like judging. what would one argue against being that type of judge? against being a textualist originalist? >> well, there are different philosophies of what a judge does, but i think the judge -- you know, what the role of a judge is, but i think the law -- article vi of the constitution says this constitution shall be the supreme law of the land and the word law is very important there. it's not a set of aspirational principles. it's law. that can be applied in court and what is the law. the law are the words that were ratified by the people and therefore can be applied in the courts of the united states. and it says the supreme law. what does it mean by that? it means when you pass a statute that is inconsistent with the constitution, the supreme law controls, namely the constitution controls over a contrary statute and that's

kagan got 63 votes and sonia sotomayor got 68. it's going to bother me you don't get those numbers, but what bothers me is she got 90. anthony kennedy got 97. antoni scalia got 98. ruth bader ginsberg got 96. so what's that mean? between then and now, advising consent has taken on a different meaning. it used to be the understanding of this body that elections have consequences, and you would expect the president who won the election to pick somebody of their philosophy. i promise you that when strom thurman voted for ruth bader ginsberg, he did not agree with her legal philosophy, and i doubt that senator leah gree ag with justice scalia. senator lee voted for a lot of republicans. i have voted for everyone presented since i have been here because i find them to be highly qualified, coming from backgrounds i would expect the president in question to choose from. so as to your qualifications, how long have you been a judge? >> i've been judge for 12 years. >> how many opinions have you written? >> i have written over 300 opinions.

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 was supervised by bruce lindsay whose white house tenure overlapped. bill clinton designated him to supervise records in cooperation with the national archives under the presidential records act. president bush by choosing mr. burke is doing exactly what president clinton did in choosing bruce lindsay for that same purpose. >> mr. chairman -- >> the senator was first. >> i thank my colleague. i, too, refer to a so-called committee confidential document deemed such by one bill burke. we all know who he is at this point. 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. i would defy anyone reading this document to be able to conclude that this should be deemed confidential in any way, shape or form. thank you. >> mr. chairman, i know you have mentioned a

our request metered the bipartisan request for elena kagan records. no more no less. because that request was not supported by you, mr. chairman, the archives refused to produce these documents here i had that letter of refusal. that was a disappointing blow against transparency and against our right as a minority, and the publics right for information. there are two issues that the chairman has long championed, and it honestly makes me wonder, what in judge kavanaugh's records are republicans hiding? last weeks hearing was further proof that we need this whole record, as i said. when questioned about his why does work and views, judge kavanaugh was evasive and misleading. often he was not able to recall exactly what he had worked on are what his specific role might have been. for instance, i asked the judge whether he worked on any issues related to reproductive health care or choice. instead of asking come he said this and i quote, president bush was a pro-life president, and so his policy was pro-life, and those who worked for him, therefore, had to assist him of c

kagan. bill clinton designated mr. lindsey to supervise records from his presidency in cooperation with the national archives from records of administration under the presidential records act. so president bush, by choosing mr. burke, doing exactly what president clinton did in choosing roos lindsey for that same purpose. >> mr. chairman? [inaudible] >> i think my colic. count me in, too. mr. chairman, i, too, refer 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 companyi would've 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. thank you. >> mr. chairman, i know you mentioned a number of times, but i went through the process. i do want to point out, however, i also was on numerous lett

the time because kagan was a blank slate as a judge. instead, unlike judge kavanaugh, with his 12 years of judicial service and over 10,000 pages of judicial writings on the nation's most important federal circuit court, just kagan had zero years of judicial service and zero pages of judicial writing before appointment to the highest court. senator klobuchar. >> thank you. before i begin, i wanted to respond to just a few things. none of that takes away from the fact that 42,000 documents were dumped on us last night and i don't think anyone would go to trial and allow a trial to go forward or allow a case to go forward if one side got 4,000 documents the night before and the other side -- and you can't simply review them as pointed out by senator whitehouse. you'd have to review 7,000 documents every hour. that happened last night. >> let me respond without taking time away from you. >> thank you. >> democrats got exactly the same amount of money we did to do the work, the massive amount of work we had to do. and we got it done at 11:0

when you speak about doing the same thing as with elena kagan. i was chairman when kagan was here. we had 99% of her records from the white house were made public 12 days before the hairing. with judge kavanaugh we have 7% and only 4% are public. you can talk about the numbers of pages, the fact is 99% for elena kagan 12 days before the hearing. it was all available. judge kavanaugh is 7% and only 4% made public. so if we're going to argue what was precedent i would point out i've been in the senate for 19 supreme court nominations. what is being done here is unprecedented. and i keep coming back to the same question i asked, what are we trying to hide? what are we hiding. what's being hidden? why not have it open like all others? only other time we heard a president evoke executive privilege was president reagan during the justice william rehnquist hearing and republicans and democrats together went to him and said don't do that. he said okay. you're right. and he withdrew his request for executive privilege and released the documents. >> mr. chairman -- >> you know, i'm just sorr

kagan agreed with scalia's dissent. >> yes. she has called it one of the greatest ever written, and she added it gets better every year. >> i don't want to get into the habit of saying "listen to a league in kagan, will hear it" because she's a fine person. the situation we have before us for mr. miller, that's not a separation of powers issue, is it? are these different facts, mr. mueller was the don michael .23 department justice regulations. >> i don't want to talk specifically about current events, but i will fare back to what i've read about special council. >> i'm not asking you to decide the case, just read the paper. you watch television? the special counsel statute in question doesn't exist anymore, does it. >> been up and counsel does not exist any more, since 1999. traditional special counsel i have written about is the ordinary way that outside investigations -- >> but is that an executive branch function? >> it that is ordinarily by the attorney general. >> who is a matter of what? >> the executive branch. >> last

afr all, elena kagan, justice kagan, hired brett kavanaugh to teach at harvard law school. and his students love him, including a lot of female students who i've talked to. >> sreenivasan: you be, speaking oelena kagan, she said something earlier this week, it's a quote, "american governance depends on people believe that it is not simply an extension of politics, that its decision making has a kind of integrity to it." she was talking about the institution of the s reme jamal, how much is the question of the integrity of the court in play now given the opening testimony and what's happening in the past week? >> i think it's very clearly in play. it would be in play anyway, even if kavanaugh had never testified, given how dug in the sides in this issue are. but kavanaugh began his testimony with as partisan a statement as you'llver see from a sitting judge. and so, he jected quite a bit of partisanship into the situation. sly, his supporters are going to say that it was already there to begin with. but we're not used to seeing the veil really come off of the court in quite

kagan. bill clinton nominated mr. lindsey in cooperation with the national archives and records administration under the presidential recordsds act. presidentpr bush by choosing mr. burke is doing exactly what president clinton did in choosing bruce lindsey for that samek, purpose. >> i think my colleagues. mr. chairman, i too referred to a so-called committee confidential document team such by one bill burke and 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, it would've been happy to release it to him or give it to him. i would defy anyone reading this document to be able to conclude that they should be deemed confidential in any way, shape or form. thank you. >> i know you've mentioned a number of times i went through the process. i also was on numerous letters asking for obvious documents to be released in my colleagues have repeatedly asked. what happened on the first morning of f this hearing and tt isne that when they were 42,000 do

that's justice kagan's formulation. she said repeatedly, no thumbs up or thumbs down when she was asked what do you think about this case, what do you think about that case? i liked her formulation there. no thumbs up or thumbs down. that nominee precedent as i call it, is now in my view, part of the independence of the judiciary. and that nominee precedent is something i need to adhere to, when i am here as a nominee now. because that's one of my jobs here is not to advance my own interests, but remember, i'm a representative of the judiciary as a whole and i have a responsibility to judicial independence, right here, right now as a nominee. so following that nominee precedent is going to be critical. now there's an exception that the eight justices have drawn currently sitting on the court. if you read all the hearings for some older cases. and i'll be happy to, some older cases, that where nominee precedent does allow the justices, has allowed them to talk about a few older cases. again, why do we do this? why is thi

but that 99% of justice kagan's records were made public before the hearing. this is fuzzy math. my colleagues calibrate their phony 6% figure on two inaccurate numbers. first, their 6% figure counts the estimated page count by career archivists at the national archives based upon their historical practice before the on-process e-mails and attachments are actually reviewed. when judge kavanaugh's white house e-mails that we've received, the actual number of pages ended up being significantly less than the number the national archives estimated before the actual review. one reason is because we were able to use technology to cull out the exact duplicate e-mails. instead of having to read 13 times an e-mail that judge kavanaugh sent to 12 white house colleagues, we only had to read the e-mail once. second, the 6% figure counts millions and millions of pages of irrelevant staff secretary documents that we never, ever requested or needed. more importantly, we received 100% of the documents we requested from judge kavanaugh's time as an executive branch lawyer. and while we may have r

>> katie: he said he learned a lot about elena kagan -- from elena kagan. democrats are saying this and republicans helped portray he's not a right-wing crazy guy. he's actually pretty moderate, middle-of-the-road conservative. >> jesse: he is a moderate? >> katie: i'm crushing all of jesse's hopes. >> juan: jesse wants a right wing trump -- how would you say? >> dana: we learned a lot about the funding of the country and federalist 17 in all this stuff but advise and consent is what the senate is supposed to do. it was purely about, for a long time come about qualifications. he is highly qualified. everyone agrees about that. >> juan: it's not about qualifications. >> dana: not anymore. >> juan: the swing seat on the court. >> jesse: there is a resister who came out in "the new york times" and is anonymous and has said they are trying to control him. >> point after point after point, if you look, almost 4 million jobs created since the election. [applause] more americans now employed than ever recorded in our history. we have more people working today than

she was then professor kagan. i think she was referring to the concept of independent agencies generally. so the humphries executor on one of the cases. [ protester heckling ] >> i think she's referring there, at least i read her as referring there to independent agencies are traditional and permissible. this is different from the traditional agency that's existed with the federal trade commission, the securities and exchange commission. so i did not read her old article to in any way -- >> let's put it this way, she may have complimented scalia's dissent in the writing or holding. you criticized the independent counsel statute as a constitutional travesty. i'm simply trying to get to the bottom of why you held that view and why you chose to say that in a speech just two years ago? >> well, it was morrison v. olson was a one off case about a one off statute that hasn't existed for 20 years. the statute is gone. i read that many times in speeches i've given. but that statute, it's real important to be clear here, i

justice kagan said it well at a talk two years ago, maybe three, at harvard law school, president in the audience, we are all textualist, talking about justice scalia, who brought about significant change in the focus of all federal judges, seen it across the supposed philosophical strekt r spectrum pay attention to the context and we are all textualist because justice kagan explained every judge really cares about the words passed by congress. now why is that? i think about it from a formal and a functionalist perspective. formal matter, the law passed by congress is the binding law, arizona to what is signed by the president, it is what has gone through the senate and the house and that is the law. but also as a practical or functional matter, i think having seen the legislative process, i know how compromises come together and the house and senate, within the senate, within the house, there is negotiations late at night over precise words and compromises inevitably. the constitution compromise, legislation is compromise and we depart from words that are specified in the text of th

and i'm especially grateful to the dean who first hired me, now justice elena kagan. one of the best parts of my job as a judge is each year hiring four recent law school graduates to serve as my law clerks for the year. i hire the best. my law clerks come from diverse backgrounds and points of yield. a majority of my 48 law clerks have been women. more than a quarter of my law clerks have been minorities. and i've had far more african-american law clerks than the percentage of african-american students in u.s. law schools. i am proud of all my law clerks. i'm grateful for my friends. this past may i delivered the commencement dress at catholic university law school. i gave the graduates this advice, cherish your friends, look out for your friends, left up your friends, love your friends. over the last eight weeks i've been strengthened by the love of my friends and i thank all my friends. i'm grateful to have my family behind me. my mom rightly gets a lot of attention, but a few words about my dad. he has an unparalleled work ethic and the gift for making friends wit

so did meyer and kagan. got a lot of crap. i suggest you think long and hard if you have a political ambition of voting to are this guy because bauz he'ecause he'l play well on your side. i thought of life. he added that you lost. what is your way of thinking you better win elections judge sotomayor to be. this is exactly the time you need to be there. and i am telling president trump you do things that drive me crazy, do you great things. you have never done anything in my view. because you had an opportunity to put well qualified conservatives on the court, men steeped in the rule of law who will apply analysis not politics to their decision making. and you knocked it out of the park. and to my friends on the other side, you can't lose the election and pick judges. >> let me tell everybody what the rest of the day holds for us. you can take a break now that we had a reasonably scheduled for 15 minutes and it may take 15 minutes. but with very to put a different table in here for the people that are going to introduce you. so

kagan got 63 votes and sotomayor got 68. it's going to bother me that you don't get those numbers, but what bothers me is they should have gotten 90. they should have gotten 95. anthony kennedy got 97. anthony scalia got 98. ruth bader ginsburg got 96. so what's happened? between then and now, advise and consent has taken on a different meaning. it used to be the understanding of this body that elections have consequences and you would expect the president who won the election to pick somebody of their philosophy. i promise you that when astronomy thurm strom thurman voted for ruth bader ginsburg he didn't agree with her philosophy. i have voted for every one presented since i have been here because i find them to be highly qualified, coming from backgrounds i would expect the president in question to choose from. so as to your qualifications, how long have you been a judge? >> i've been a judge for 12 years. >> how many opinions have you written? >> i have written over 300 opinions. >> okay. do you think there's a lot we ca

he did vote for kagan and sotomayor. he is -- maybe it's your point, he's up for reelection but i just think -- >> it's more than that but none of this started with trump but it's exploded. >> maybe you know the answer. the three moderate democrats who are -- who have been on the fence right now, joe mansion, joe donnelley, heidi, how do you think they're going to react? >> that's a really good question. we don't know the answer to that yet but it is hard to imagine that after what we saw today that because it's kind of politically a draw at the end of the day, it's hard to see how -- whatever they were planning on doing ahead of time is going to change much. i always thought that they are going to watch what happens with the republicans and then perhaps take their cues from them. i'm talking about murkowski and collins and flake. and i still think that's the case. >> manu raju is up on capitol hill, our congressional correspondent. this is a sensitive moment, not only for a couple republicans, for a few democrats as wel

that's justice kagan's formulation. she said repeatedly, no thumbs up or thumbs down when she was asked what do you think about this case, what do you think about that case? i liked her formulation there. no thumbs up or thumbs down. that nominee precedent as i call it, is now in my view, part of the independence of the judiciary. and that nominee precedent is something i need to adhere to, when i am here as a nominee now. because that's one of my jobs here is not to advance my own interests, but remember, i'm a representative of the judiciary as a whole and i have a responsibility to judicial independence, right here, right now as a nominee. so following that nominee precedent is going to be critical. now there's an exception that the eight justices have drawn currently sitting on the court. if you read all the hearings for some older cases. and i'll be happy to, some older cases, that where nominee precedent does allow the justices, has allowed them to talk about a few older cases. again, why do we do this? why is thi

they have taken the kagan standard and trashed it. we cannot act as if all is well in the republic. we cannot act as if everything is normal. we cannot abt -- act like this is any other nomination put forward by any other president, because it's not. it should be clear to all of us this nomination should not go forward until the mueller investigation is concluded. but i know that my colleagues are not prepared to take that stand. but surely we can agree that the senate cannot perform its advice and consent while our hands are tied by a partisan vetting process hiding hundreds of thousands of documents from the senate and from we the people. so i call upon my colleagues to arise from this low point of yed consent. stand up for the same principles you stood for just a couple years ago when you demanded the full record for the senate to undertake its investigation into a nominee. bring courage and integrity into this process. publicly refuse to proceed until we the senate and we the people have the full set of documents about this individual's records. to do any less is to bring shame

and justice kagan of course, disagree with how they were applied. and i understand -- >> it was very strong and it was a decision and suddenly we are talking about strong reasons being the first amendment rights. which justice kagan said is now being weapon eyes and you can see the trend of the 5-4 decision is that weapon eyes the first amendment. we are already seeing that. the course is where the first amendment rights are concerned, that is a decisive theme precedent applied to least force. going on. basically, the concern i have about the janus court is that we will see many more 5-4 decisions where president transferred precedent can be overturned. or for first amendment rights are concerned. let me turn to the issue of guns. you were asked some questions about the spirit about your position on basically, heller two. it was reported as of august 20, 2018 outside group that spent almost 3.5 million to campaign for your confirmation, and i think we've all seen the ads. by contrast, groups opposing the nomination have spent less than 1/4 of that a

barack obama, elena kagan, sonia sotomayor ora, donald trump, neil gorsuch. donald trump, brett kavanaugh. that's not newsworthy, it's not surprising. that's not even relevant. but for him to come across as a human being and take the fact that he is a conservative republican out of the equation when he addresses the legal issues before him is the case that he needed to make for himself and the case which i think he did make. now i must say i think i do believe the more difficult questions will come from the more aggressive questioners such as senator whitehouse and senator blumenthal, and senator booker later today. if this morning as an indication of how well he will hold up and continue, martha, to portray that, what in my view is a genuine view of neutrality, he will do well. we will see the fireworks, we will watch them and maybe even enjoy them but i think he will survive them. >> dana, one of the things that we look at was really how those answers are developed. this is, as ab mentioned, emoting about people who have come before his court, making sure t

i was chairman when kagan was here. we had 99% of her records from the white house were made public 12 days-12 days before the hearing. with judge kavanaugh we have 7% and only 4% are public. you could talk about the numbers of pages. the fact is, 99% for justice kagan 12 days before the hearing. it was all available. judge kavanaugh 7% and only 4% made public. so if we're going to argue what was precedent i would point out that i've been in the senate for 19 supreme court nominations. what's being done here is unprecedented. and i keep coming back to the same question i asked what are we trying to hide? what are we hiding? what is being hidden? why not have it open like all others? the only other time we heard a president invoke executive privilege was president reagan during the justice william rehnquist hearing and republicans and democrats together went to him and said don't do that. he said okay, you're right. and he withdrew his request of executive privilege and released the documents. i'm just sorry to see the s

this is longer period of time than senators had for justices sotomayor, kagan, and gorsuch. justice kavanaugh also submitted over 17,000 pages with his bipartisan judiciary committee questionnaire. the most extensive questionnaire ever returned by a nominee to the supreme court. the committee also received more than 440,000 pages of documents related to his service in the executive branch. this, too, is more than any supreme court nominee to date. as has been said earlier, in fact is more than the last five nominees combined. i applaud chairman grassley and his dedicated staff for their tireless work in reviewing these documents and making the vast majority publicly available as quickly as possible. and frankly, mr. chairman, i believe the american people appreciate your efforts, your transparency and your commitment to a fair process. now i want to make one side note. it was said here today that the number of documents provided by justice, now justice kagan, who was also a nominee who had served in the white house and had many, many documents relating to her service, that 9

those were justice kagan's words, not mine. all of the five justices went to the factors for overturning precedent, it identified another with them for two as very strong reason for not following president and the recent was quote fundamental free speech rights. the five justices said the rule for following precedent also not stare decisis apply to brass least force, least force of all to decisions thatsi wrongly deny first amendment rights. sense of the court is saying the first amendment rights takes precedence. why is this important? because ofgh a larger political campaign that he mentioned earlier. with the help of these groups this up in court us justice has been quote weaponizing the first amendment in a way that unleashes judges now and in the future to intervene in economic and regulatory policy in court. back just this past to the first amendment was used to advance a political agenda against workers and women self and reproductive rights. judge kavanaugh come decree with the five justices in janus? >> that's a preced

kagan and

>> that's correct. >> and apparently kagan and scalia agreed. >> yes. >> kagan agreed with scalia's dissent. >> she's called it one of the greatest ever written and she's added, it gets better every year. >> i don't want to get into the habit of saying, listen to elena kagan, but listen here, because she's a fine person. the situation about mr. mueller, that's not a separation of powers issue, is it? mr. mueller was appointed through department of justice regulations. >> sir, i don't want to talk specifically about current events, but i will just refer back to what i've written about special counsel. >> i'm not asking you how to decide a case, i'm just asking you, do you read the paper? do you watch television?statute counsel in question doesn't exist anymore. >> the statute does not exist anymore. it's the ordinary way that outside investigation. >> is that an executive branch function? >> that is appointed by the attorney general. >> who is a member of what? >> executive branch. >> that's time i checked that's not separation of powers issue. >> that's been an executive branch. >> the ques

soed mi sotomayor and kagan. i got a lot of crap. why did i do it? i thought they were qualified by any reasonable measure, given the history of the senate. but we have turned the history of the senate upside down. i found that they were different than i would have picked, sotomayor and kagan, but my any reasonable measure they were qualified. you've been on the court for 12 years, you've had 307 decisions. you've been approved before. our own people in the country understand this game. it's a game that i am sad to be part of. it's gotten really bad. the anecdote to our problems in this country when it comes to judges and politics is not to deny you a place on the supreme court. this is exactly who you need to be, this is exactly the time you need to be there, and i am telling president trump, you do some things that drive me crazy, and you do some great things. you've never done anything better in my view to pick gorsuch and kavanaugh, because you had an opportunity to put well qualified conservatives on the court, men steeped in the rule of law, wh

we had 99% for justice kagan of her documents for her time at the white house. we do not have -- we have less than 10% of yours. there were 860 documents designated as committee con confidential that was discussed with the democrats and republicans on the committee. nobody objected to that. let's follow up on our questions yesterday. we discussed the fact that while you worked on nominations in the bush white house, you received stolen material from a republican senate staffer named mandy miranda. i thought it was a digital watergate. he stole 4,670 computer files from six democratic senators. it was an effort to confirm some of bush's most controversial judicial nominees. they were some of the most contentious fights of the day. this republican stole 4,670 computer files. in 2004 and 2006, you testified a number of senators, republicans and democrats asked you, and you said you never received any stolen materials. that doesn't appear to be accurate. you also testified that you knew nothing about this scandal until it was public. if you had suspected anything, y

i'd go to go back to the kagan quote on scalia. what's a fair way to characterize the position that folks would have held before justice kagan said we've all become textualists now? when there were none, who were they, and how does it make any sense? >> well, i think one way to describe it is that judges would try to figure out what the general policy was reflected in the statute and then feel free to shape the particular textual provision in a way that the text itself wouldn't bear to serve that broad policy end. and so i think that's probably it. one way to think about it. another way is that judges would sometimes use a snippet of a committee report or a floor statement and say that's really what congress was getting at in terms of the statute and, therefore, we're going to follow that committee report or floor statement rather than following the text of the statute. so that that's another way, i think, in which judges would depart from the of the statute. and that mode of statutory interpretation, i do think justice scalia had

with respect to justice kagan, you know, i had a firsthand seat to that. i was hedeputy when she was nominated, and her documents were turned or, except for a very small number. none of them got executive privilege which is what is being assertedhere, and not just for a couple of documents, 42,000 pages dumped last night. it was no less tn senato grassley and senator cornyn who during the kagan nomin, ation sae need to see the documents before the hearing." they hearing date.ut the aise understand, the hearing date was pushed back in time for the kagan documents to come out. and, you know, the worst part about this is that it really hurts judge kavanaugh and it hurts the court. we should have an open debate about this with the documents read and so thane amereople can see them. >> woodruff: i just want to quickly turn back to lide ardins who is still with us. crsa, do we know whether the des plan to pursue this again tomorrow? >> we don't know. i asked several democrats, including senator blumenthal, who is sort of one of the leaders here of kind of the op

compare this to the near 860 documents that were designated committee confidential or justice kagan, and that request is made by the nonpartisan archives, not by this committee. on friday we learn president trump is claiming executive privilege over an additional 102,000 pages of your records. such a blanket assertion of executive privilege is certainly unheard of in the history of this country. the reason it is unheard-of is because it is so outrageous. the last time a president attempted to write a supreme court nominees records by invoking executive privilege was when president reagan did this for justice what you rehnquist. but then republicans and democrats came together. we demanded the documents be released, and president reagan okay, and they were released. boy, how times have changed. to date we receive less than half of chairman grassley is partial records request, meaning removing -- even republicans claim they need vet the nomination just a few weeks ago. then we received additional 42,000 pages a few hours ago. the notion anyone here is properly reviewed review them n se