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Senate Judiciary Committee Debates Supreme Court Nominee; Senate Intel Committee to Hold Private Talks Today. Aired 10:30-11a ET

Aired April 3, 2017 - 10:30   ET


[10:30:00] SEN. DIANNE FEINSTEIN (D), RANKING MEMBER, JUDICIARY COMMITTEE: -- which dictionary a judge happens to select should not and cannot determine whether a just outcome is achieved in a case.

The second case that really stood out -- and the father testified before us -- was Luke P. Luke Perkins was diagnosed with autism at 22 months. As he got older, the amount of structure and educational services he needed increased. In response, Luke's parents and grandparents did all they could. They dug deep into their savings. They sought support from the school district, as provided for under the Individuals with Disabilities Education Act, known as IDEA, but they were denied.

The independent hearing officer, the administrative judge, and the United States District Court all determined the school district was wrong to deny funding. But when the case got to the Tenth Circuit, Judge Gorsuch inserted the word "merely" into the standard. Now, up to this point, the Tenth Circuit had held that the educational benefit had to be, quote, "more than de minimis," end quote, adding the word "merely" made a narrow interpretation of the law even narrower.

As Luke's father testified to us, and I quote, "Judge Gorsuch felt that an education for my son that was even one small step above insignificant was acceptable," end quote. Luckily, the Supreme Court unanimously rejected Judge Gorsuch's interpretation of the law, actually, during our hearings.

In both cases, Judge Gorsuch unnecessarily went out of his way to imply his own view of what the law should be, even when it would have devastating effects on people's lives. Because these cases were troubling, I had hoped Judge Gorsuch would better explain his judicial philosophies and personal views at this hearing, but that did not happen.

Judge Gorsuch's views were difficult to discern because he refused to answer many questions, even basic questions that had been answered by previous nominees. For example, Senator Blumenthal asked the judge if he agreed with the results of "Brown v. The Board of Education," one of the most important cases in our history, I think everyone would agree. Rather than agreeing that schools shouldn't be segregated, Judge Gorsuch instead said it was, quote, "the correct application of precedent," end quote.

To be clear, when he asked if he supported Brown, Judge Gorsuch refused to directly answer. In contrast, when Justice Kennedy was asked about Brown, he replied, and I quote, "I think "Brown V. Board of Education" was right when it was decided, and I think it would have been right if it had been decided 80 years before," end quote.

In another exchange, Senator Franken asked about a wave of recent laws to restrict access to voting. These laws were found to target African-Americans with surgical precision. Senator Franken discussed the effect of these laws, but he simply asked if Judge Gorsuch was disturbed by efforts to disenfranchise African-American voters. The question has but one easy answer, and it's yes.

Yet, instead of agreeing, Judge Gorsuch ducked the question. He responded, and I quote, "If there are allegations of racism in legislation in the voting area, there are a variety of revenues," end quote. Even Justice Alito was more candid. When asked about Affirmative Action, Justice Alito replied, "I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be. Having a diverse student body is a compelling interest."

Going even further, in 1987, Senator Biden asked Justice Kennedy not what he thought about Affirmative Action generally, but whether the voluntary Affirmative Action plans are legally permissible.

[10:35:04] Judge Kennedy unequivocally responded, "Yes." Unfortunately, Judge Gorsuch's answers were so diluted with ambiguity, one could not see where he stood, even on big and long-settled cases. When I asked Judge Gorsuch about his work at the Department of Justice involving the Bush administration's defense of the use of torture, despite providing relevant documents, Judge Gorsuch said only that, quote, "his memory is what it is, and it isn't great on this," end quote.

And that the position he took on torture, quote, "was the position that clients," were telling him, end quote, to take. Not only did he not answer my question, he raised an additional concern. I strongly believe that when you work for the government, either as a lawyer or a policymaker, it's important to comment on the legality of the issue you advise or write. To say, I did what they wanted, is not enough, particularly if the legality is contradicted by both law and treaty.

I also believe it's important to remember the context. At this point, our country was involved in detaining people indefinitely, without charge or trial, leaving them with no rights, no meaningful opportunity to challenge their confinement. The government had also decided the executive could order the use of certain enhanced interrogation techniques that included waterboarding, stress positions, and sleep deprivation, as well as a host of other techniques which would and did result in death and serious debilitation of detainees.

It was April 2004 when the public first learned about the prisoner abuse chronicled in the Abu Ghraib photos. Then in June of 2004, information was leaked to the media that the Department of Justice had issued legal opinions that stated enhanced interrogation techniques were within the law, unless they inflicted the kind of pain associated with organ failure or death.

Judge Gorsuch reached out to the White House political director in November 2004, approximately six months after these revelations, to say how he wanted to help the cause and be a full-time member of the team. Then in March 2005, he reached out to the chairman of the Republican National Committee, who vouched for Gorsuch as a true loyalist and a good, strong conservative.

Judge Gorsuch ultimately joined the Bush administration in June of '05. Through our examination of his documents, we learned that during his tenure at the Department of Justice he was involved in efforts to strip detainees of their ability to have habeas cases heard by federal courts, defend and protect the Bush administration's position on torture, and issue an expansive signing statement on the Detainee Treatment Act.

These statements were used to highlight parts of the law the administration intended not to follow. Importantly, we learned Judge -- that Judge Gorsuch advocated for the Bush administration to issue a broad signing statement. He said it could be used to, and I quote, "help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy."

In light of the McCain portion of the amendment this statement clearly, and in a formal way that would be hard to dispute later, puts down a marker to the effect that the view that McCain is best read as essentially codifying existing interrogation techniques. Nothing could be farther from the truth.

Judge Gorsuch's e-mail shows a knowledge of the Bush administration's position on torture. It also demonstrated he supported efforts to codify existing interrogation policies, such as waterboarding and other extreme techniques.

[10:40:08] In our written questions, I asked again about his views on enhanced interrogation techniques. I know something about them. The Intelligence Committee while I was chairman has in classified data over 7,000 pages with 32,000 footnotes that document all of this. I tried to understand his opinions on right and wrong and whether he was at all disturbed by what our government was doing. Unfortunately, once again, the answers I got were nonresponsive.

For example, I asked Judge Gorsuch what he meant when he suggested that a signing statement could inoculate the administration if they were later criticized for not making, quote, "sufficient changes to the interrogation policy," end quote, based on the McCain amendment. Judge Gorsuch responded, once again, that he was, quote, "a lawyer advising a client," end quote. And that his client, the government, was arguing that the McCain amendment simply codified existing policies.

Judge Gorsuch's defense is that he was only doing what his client wanted him to do. Many of his colleagues -- excuse me, of my colleagues, on the other side of the aisle have praised Judge Gorsuch's qualifications, and there's no question he's well educated and well credentialed. But we're not just evaluating a resume. If we were, every Supreme Court nominee would pass unanimously, 100-0. Rather, all of us evaluate not only their education and experience, but also their judicial philosophy, temperament, and views on important legal issues.

We do this because, if confirmed, a nominee's decisions will affect the lives of all Americans for generations. And as I've said, our job is to assess whether the nominee will protect the legal and constitutional rights of all Americans and whether the nominee recognizes the humanity and justice required when evaluating the cases before him. Unfortunately, based on Judge Gorsuch's record at the Department of Justice, his tenure on the bench, his appearance before the Senate, and his written questions for the record, I cannot support this nomination.

Thank you very much.


SEN. ORRIN HATCH (R), UTAH: Well, thank you, Mr. Chairman. Before making a few comments about the nomination of Judge Neil Gorsuch, I want to remind my colleagues about the committee's traditional practice regarding Supreme Court nominees. That practice was memorialized in a letter signed in June 2001 by incoming chairman Patrick Leahy, and by myself as the then Ranking Member on this committee.

Mr. Chairman, I ask consent that that letter be placed in the record at this point.

GRASSLEY: Without objection, so ordered.

HATCH: The letter states, quote, "The Judiciary Committee's traditional practice has been to report Supreme Court nominees to the Senate once the committee has completed its considerations," unquote.

Now this letter was cited several times last year by those demanding a hearing on the previous nominee but it says nothing whatsoever about how the committee should consider a particular nominee.

The best way to evaluate an individual nominee depends on many factors. And last year, we obviously faced some unique circumstances. Though this letter was irrelevant last year, it is certainly relevant now because we have completed our consideration of the Gorsuch nomination. Since only five current committee members were here in 2001, I wanted to make sure everyone was aware of our past practice.

Now the conflict over judge -- over the Gorsuch nomination is not about whether our fellow citizens tried to influence the president's nominations or the Senate's advice and consent. Of course they do. From both the left and the right. Anyone who thinks that specific left wing groups have not moved mountains and spent like mad to influence past Supreme Court nominations has been living in a parallel universe for the last 30 years. Nor is the conflict over the Gorsuch nomination about whether President Obama had a right last year to appoint this nominee. No president does, that's what checks and balances are for.

[10:45:07] The Constitution gives the president the power to nominate judges, then gives the Senate the power, advice and consent on those nominations. Both the president and the Senate legitimately exercised their respective powers last year. The conflict over the Gorsuch nomination is instead about two radically different ideas about the role of judges in our system of government.

America's founders designed the judiciary to impartially interpret and apply the law. The judges did not make and cannot change to decide individual cases. The law, not the judge, determines the results and the way to change the results is to change the law. The other idea is that deciding cases as a means to the end of judges addressing issues and advancing political interests.

JOHN BERMAN, CNN ANCHOR: All right, you've been watching the Senate Judiciary Committee. They are meeting to discuss the nomination of Judge Neil Gorsuch to be the next Supreme Court justice of the United States. Right now you're looking at Senator Orrin Hatch of Utah.

One bit of news, the ranking member, the lead Democrat on this committee, Dianne Feinstein of California, she just announced she is a no vote. Now we all thought that would happen, but she had not announced her intentions before so that's one more no vote. Presumably, she will also support a filibuster so Democrats are getting one step closer now to that number. 40 votes is what they need -- 41, in fact, to block this nomination, which would force Republicans to use the nuclear option.

POPPY HARLOW, CNN ANCHOR: Right. And they only now have three Democrats that have said that they will indeed vote yes on Gorsuch. You've got the Democrat from West Virginia, North Dakota, and also Indiana over the weekend making that news. So the numbers not adding up at this point. Looks like we will, for sure, see the nuclear option.

Let's talk about this as we continue to monitor this hearing. Joan Biskupic is with us, our Supreme Court expert, and Nia-Malika Henderson on the politics of all of it.

But, Joan, let me begin with you. What's your takeaway in terms of the fight we're seeing set up? Because we've just heard from the ranking Democrat, Dianne Feinstein, as well as Chuck Grassley, but the fight we're going to see is yet to come.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: That's right, and she laid out a couple markers that I think might be picked up when he hear the floor debate later in this week. She talked about the money being spent to oppose him. She talked about Merrick Garland, but then she said let's put all that aside. Here's why I think that he should not be confirmed. And she put down a couple of markers that we might hear echoed throughout the rest of the debate today, this morning, and then also later in the week.

For example, she raised a comparison between Judge Gorsuch and other Republican nominees, saying compare these answers, compare how little he gave, even when you look at, for example, now Justice Samuel Alito, now Justice Anthony Kennedy. And I think she went through this systematically to say this is not just about the politics of what happened with Merrick Garland, although she stressed that that was so unusual last year that President Obama's nominee did not get a hearing.

She stressed how much the money was going against -- was going against the interests of Democrats, but she wanted to give the substantive case, and I think we'll hear more about that, we'll hear more about the frozen trucker case, we'll hear more about individuals with disabilities in education case, and I think we'll hear more about the evasiveness.

BERMAN: You know, it was -- you know, Chairman Grassley was making point this is a judge in the mainstream. The Ranking Member, Senator Feinstein, seemed to be saying this is not a judge whose decisions I agree with.


BERMAN: This is about the law. She wanted to make that point, it's not just about politics. Nia Malia Henderson, about the vote count right now and the Democrats, we now have three Democrats, Joe Donnelly, Heidi Heitkamp and Joe Manchin coming out saying they will support Gorsuch, and a couple surprising Democrats over the last couple days, surprising they came out so early, Jon Tester of Montana, Claire McCaskill of Missouri, saying they will be no votes.

I'm curious when you have these Democratic senators from red states, what's driving them one way or another? What makes Heidi Heitkamp different from Jon Tester?

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL CORRESPONDENT: You know, everything is local I think we're seeing. I think initially we thought, listen, all of these sort of Trump state Democrats might be there for the picking off, if you're a Republican, but they have really tried to approach this in a way that makes sense for them, that makes sense for their states. And I think if you listen to Dianne Feinstein today, she is giving this very broad case of why Democrats might be able to, when they decide what they want to do, the six or seven who haven't decided, she's trying to essentially give them kind of a framework and talking points for why they might not support this nominee.

So in some ways, I think it's broad and there's a lot to choose from. Whether or not it's his comments or lack of comments in terms of abortion, whether it's the frozen trucker case, whether it's his sort of comments and role in enhanced interrogation techniques.

[10:50:10] So that's what she's trying to do, sort of lay out a pretty broad sense of where the Democratic Party is in terms of this -- in terms of this nominee and give everyone a sense of why they might be able to be for him or against him. But in some ways, it isn't surprising that you've some of these folks like Joe Manchin, essentially saying, listen, this is the president's choice, and that the Senate's role is sort of to advise and consent. It's like the Lindsey Graham approach, I think, to Supreme Court nominees. So we'll see what happens.

But listen, I think we know what's going to happen at the end of this. The Republicans have the votes to end this, to have Neil Gorsuch be the next justice on the Supreme Court.

HARLOW: Right. It's just the process and how much that changes precedent going forward. It is historic in that way.

Thank you very much, Nia and Joan. We appreciate it. We're going to take a quick break. We'll be right back.


HARLOW: All right, we are, of course, continuing to monitor the hearings, the Senate having the hearing on Neil Gorsuch today, but also want to bring you some other news because Senate lawmakers are expected to begin their next phase of the Russia investigation.

BERMAN: Yes. A source tells CNN the Senate Intelligence Committee is expected to be holding private interviews today.

Want to get right to CNN senior congressional reporter, Manu Raju, on Capitol Hill.

Manu, what are they expecting to hear and do we have any idea who they're expecting to hear from?

MANU RAJU, CNN SENIOR POLITICAL CORRESPONDENT: Well, this is the first of 20 interviews that the Senate Intelligence Committee is expected to have, most of them behind closed doors. The beginning parts of the interviews are actually going to be people in the intelligence community, analyst type people to really lay the ground work before those really big witnesses may come forward, like -- people like Paul Manafort, maybe even a Michael Flynn.

Now on the Flynn issue, the former National Security adviser, of course, now has been asking for immunity in exchange for his testimony, but there is a lot of skepticism on Capitol Hill about whether he should get any immunity, and that skepticism is coming from Republicans, including Lindsey Graham, who's a member of the Senate Judiciary Committee who raised questions earlier today about why Michael Flynn needs immunity and whether the president of the United States should be advocating for that.

Take a listen.


RAJU: Do you think Congress should give immunity to Michael Flynn?

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: I don't know what he has to offer. I wouldn't give immunity to somebody unless I knew they had something to offer. The whole situation with General Flynn is a bit bizarre. He said in the past nobody asked for immunity unless they've committed a crime. I'm not so sure that's true. As a lawyer, I know always that is not true, but the whole situation's really strange. All I can say --

RAJU: What about the president saying that he should be given immunity?

GRAHAM: I think he's just trying to encourage him to come forward, but I'm not so sure that's appropriate. The bottom line is, if there were any contacts between the Trump campaign and the Russian intelligence services that were inappropriate, I want to find out about it and I want the whole world to know about it.


RAJU: So, John and Poppy, we're really not hearing much support from Republicans on Capitol Hill for that idea of immunity to get Michael Flynn to testify.

[10:55:02] But of course he's one of those key witnesses on both the Senate Intelligence Committee on the Senate side and the House hope to talk to. The question is under what conditions -- Poppy and John.

HARLOW: All right. Manu Raju reporting for us on the Hill. Thank you, Manu. We appreciate it.

We've got much more ahead on this crucial day and crucial week for the Trump administration.

BERMAN: Yes, right now you're looking at live pictures. Right now the Senate Judiciary Committee arguing over Neil Gorsuch. Will he be the next Supreme Court justice? Stay with us.


ANNOUNCER: This is CNN Breaking News.

KATE BOLDUAN, CNN ANCHOR: Hello, everyone. I am Kate Bolduan. Happening right now, two huge tests for President Trump, one involving his choice for a lifetime appointment to the nation's highest court, one of the most important decisions any president makes and one that has the longest and lasting impact on the country.