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Judiciary Chairman Refuses to Hold Vote on Kavanaugh Hearing Delay; Judiciary Chairman Admonishes Democrats over Kavanaugh Hearing. Aired 10:30-11a ET

Aired September 4, 2018 - 10:30   ET



SEN. JOHN CORNYN (R), TEXAS: -- to this nominee even before today's hearing. So it's hard to take seriously their claim that somehow they can't do their job because they've been denied access to attorney client or executive privileged documents when they've already made up their mind before the hearing. There's nothing fair about that and we would just ask for an opportunity for the American people to be able to listen to this nominee answer the questions that we have. And I think that's how we ought to proceed and I hope we will.


Mr. Chairman, can I be recognized to respond specifically to that comment? There is precedent here. There are rules that can guide us. We're asking for those rules to be followed. In the past, our colleagues on the Republican side have asked for a postponement of these committee proceedings on nominations when documents have been denied on two occasions from Senator Sessions, then Senator Sessions and Senator Kyl. Those requests were granted. We're asking simply that that precedent be followed, Mr. Chairman. Far from mob rule, far from contempt of the process, we're simply asking for respect here to the normal regular order.



DURBIN: Mr. Chairman, I'd like to address this committee confidential issue one more time because you've explained your point of view. Here's what we know. The chairman, Chairman Grassley, who is my friend and I respect said his reason for unilaterally designating 147,000 pages of Burke documents as committee confidential is because that was the condition that Bill Burke imposed on the provision of the documents. When Judge Kavanaugh was in my office, meeting with us, I asked him, who is Bill Burke? By what authority can he restrict the information given to the Senate Judiciary Committee and to the American people? Is he a government employee? No one knew this mysterious Bill Burke who is filtering these documents.

So I figured since the nominee carries the Constitution in his pocket there must be some reference to Bill Burke in Article 2 Section 2 but it just says advice and consent of the Senate. It doesn't include Mr. Burke. By what authority is this man holding back hundreds of thousands of documents from the American people? Who is he? Who's paying him? So committee confidential is being determined by a man, a private attorney, and we don't know who he works for, or who he's accountable to?

Mr. Chairman, in the past when we went into committee confidential it was in a discrete specific area of concern involving a handful of words or accusations that had been made in a document and we were very careful to do it on a bipartisan basis. That has not been the case here where 147,000 pages have been designated by Bill Burke as outside the reach of the American people and the Senate Judiciary Committee. That's a further example of why this whole process is gone astray and I think your explanation ignores that.



GRASSLEY: Who wants the floor?

UNIDENTIFIED MALE: The new senator.

GRASSLEY: Go ahead.

SEN. JOHN KENNEDY (R), LOUISIANA: Thank you, Mr. Chairman. Mr. Chairman, can you tell me again how many documents have been produced?

GRASSLEY: 488,000 minus - or I mean other than 28,000 pages that Justice Kavanaugh has submitted including his own judicial opinions.

KENNEDY: Are we in executive session or not?

GRASSLEY: We're having the hearing on the nomination of a nominee for the Supreme Court.

KENNEDY: Yes, sir, I got that.

GRASSLEY: We're not in executive session.

KENNEDY: Number three, at some point are we going to get to hear from the nominee?

GRASSLEY: Hopefully it was going to be before 2:30 p.m. It'll probably be later this afternoon now.

KENNEDY: All right. Thank you, Mr. Chairman.


GRASSLEY: Can I ask my colleagues on the other side of the aisle how long you want to go on with this because I'm not going to entertain any of the motions you're making, we're not in executive session and I think we ought to level with the American people. Do you want this to go on all day because I have been patient? I've been accused of having a mob rule session. Now if we have a mob rule session, it's because the chairman's not running the committee properly, but since every one of you on that side of the aisle except Senator Booker and Senator Harris, new to the committee, said during Justice Gorsuch hearing, every one of you preference your comments on how fair I was in running that hearing. Now this is the same Chuck Grassley that ran the Gorsuch hearings. I would like to run this hearing the same way if you'll give me the courtesy of doing it. -- How long do you want to go on?

SEN. CHRIS COONS (D), DELAWARE: Mr. Chairman, I'd like to make one more point before we proceed if I might.

[10:35:00] The accusation that this was a mob rule hearing was made by your colleague from the state of Texas. I think you have been conducting this in a respectful, appropriate, deliberate way. My concerns that I want to renew given the exchange you just had with Senator Leahy who has participated in or presided over more Supreme Court confirmations than any currently serving member, I believe, was over how the document request was handled for now Justice Kagan. A request was sent to the National Archives.

Ranking member Feinstein tried to work with you to send an identical request to the National Archives. And before we proceed with the questioning, Mr. Chairman, I simply would like to have a settled heart about why you chose to communicate directly to the archives not to respond to the ranking member's request? Members of this committee have raised issues about an unprecedented committee process by which documents were blocked by which they were considered classified and by which we have been blocked from being able to share them with the American people or ask questions based on them. This is unprecedented. That's why as you put it, this side seeks to raise issues to establish ground rules before we proceed?

GRASSLEY: You ask an appropriate question. I have an answer. I don't know whether it will satisfy you or not.

Those documents are the least useful in understanding his legal views and the most sensitive to the executive branch. And let me - let me emphasize the most sensitive to the executive branch. The staff secretary serves as an inbox and outbox to the Oval Office. And if you're going to have an opportunities to ask the nominee himself what he did then, but I'm giving you my judgment about being a person that primarily was responsible for managing the paper that crosses the president's desk. His job and if I'm wrong, he can satisfy you otherwise in the questions you want to ask him, but his job was to make sure the president sees the advice of other advisers, not as staff secretary providing his own advice.

One of President's Clinton's staff secretaries Todd Stern described the job this way, I quote, "The staff secretary's job is not to influence the president, but to ensure he gets a balanced diet of viewpoints from all relevant people on the staff. You're certainly not trying to put your thumb on a scale between options."

Reviewing Judge Kavanaugh's staff secretary documents would teach us nothing about his legal views. For that, we have the hunt 307 opinions that he wrote and the hundreds more joined totaling more than 10,000 pages of judicial writings.

We also have more than 17,000 pages of speeches, articles, teaching materials and other materials that Judge Kavanaugh attached to his 120 page written response, which I think was judiciary's questionnaire was probably the most robust questionnaire ever submitted to a Supreme Court nominee.

We also have more than 480,000 pages of emails and other documents from Judge Kavanaugh's service as an executive branch lawyer. This is a half million pages of paper, more than the last five confirmed Supreme Court nominees combined. In addition to not shedding light on Kavanaugh's legal views, the staff secretary documents are very sensitive to the executive branch. Let's emphasize that word sensitive.

These documents contain highly confidential advice, including national security advice that went directly to the president from his advisers. It would threaten the candor of future advice to presidents if advisers knew their advice would be broadly disclosed. Senators have more documents for Judge Kavanaugh than any nominee in Senate history. Democratic leaders insistent on getting staff documents I think was a way of not having this hearing take place at this particular time. So can I precede members of the Democratic --

SEN. KAMALA HARRIS (D), CALIFORNIA: Mr. Chairman if I may be recognized.

GRASSLEY: After you're done can I proceed to my opening statement?

HARRIS: I'll defer to my colleagues but just as a point of information, we sent a letter to you, Mr. Chairman, seven days ago regarding the committee confidential nature of the documents and I ask that they would not be designated committee confidential.

[10:40:00] As another point of information, it is my understanding there are 6 million to 7 million pages of documents regarding this nominee. And it is my understanding with all due respect Mr. Chairman that you've only requested 10 percent to 15 percent of the total. I appreciate that there are a lot of pages of documents, but we have to have this conversation in the context of the total and the fact that we've only been given, by your request, 10 percent to 15 percent of those documents.

My final point is this. This is a hearing about who will sit on the highest court of our land. This is a hearing that is about who will sit in a house that symbolizes our system of justice in this country and some of the most important principals behind the integrity of our system of justice is that we have due process and we have transparency. That is why we have public courtrooms. That is why we have requirements in courts of law in our country that there will be transparency, that both parties will be given all relevant information. We can argue then as to the weight of the documents and the significance, but not as to whether or not they're admissible. So I object, I ask that we renew and revisit Senator Blumenthal's motion to -- to suspend or my motion to postpone this hearing. Thank you.

GRASSLEY: OK. Thank you --

BLUMENTHAL: Mr. Chairman?

GRASSLEY: I appreciate the courtesy of the Democrats for me to proceed.

BLUMENTHAL: May I just have one last opportunity for my motion.

GRASSLEY: Please go ahead. Please go ahead.

BLUMENTHAL: Thank you Mr. Chairman. I appreciate your giving me the floor.

I've made a motion that is properly before this committee. The chairman said earlier that he has never been through a confirmation process like this one. The reason is that no administration in the past has engaged in this kind of concealment. That's the reason, very simply. It is not the chairman's doing, necessarily. It is this administration that has concealed and hidden documents from us and from the American people.

And so I renew my motion that we adjourn so that we can access the documents we need, review them in a deliberate and thoughtful way, much has been done for colleagues in the past when they have requested it, and as his required under Rule 4 of our rules. There is no requirement that we be in executive session to follow this rule, Mr. Chairman. And I respectfully ask that we follow our rules, that we proceed in accordance with those norms and I know that chairman has great respect for open government, for whistle-blowers, for sunlight as the best disinfectant. We need some sunlight in this process.

Thank you, Mr. Chairman. I again, renew my motion to adjourn, which has been seconded by Senator Whitehouse.

GRASSLEY: Denied because we're not in executive session. I will proceed --

SEN. MAZIE HIRONO (D), HAWAII: Mr. Chairman, before you proceed, I'd just like to make one correction. There is a misconception as to what White House staff secretaries do and, in fact, two past staff secretaries Todd Stern and John Podesta wrote an op-ed in July 30th, 2018, "The Washington Post" titled, "Staff Secretaries Aren't Traffic Cops. Stop treating Kavanaugh like he was one."

And in fact, Judge Kavanaugh himself has acknowledged the importance of the time that he was White House staff secretary, so why Mr. Chairman, you and the others on your side keep saying that this was kind of a nothing kind of a job, nothing could be further from the truth and this is why we are so adamant about requesting these documents that the judge himself, the nominee himself, has said were among the most formative time of his adult life.

Thank you, Mr. Chairman.

GRASSLEY: Of course that's why we have this hearing. Judge Kavanaugh -- UNIDENTIFIED FEMALE: We don't have the documents.

GRASSLEY: Judge Kavanaugh will have an opportunity to answer every question about his role in almost anything he's done in his lifetime, I assume.

SEN. CORY BOOKER (D), NEW JERSEY: Mr. Chairman - Mr. Chairman, may I be recognized, sir?

GRASSLEY: Will you be the last one or do you want to go on all afternoon?

BOOKER: I can't speak for my colleagues, but a lot of people I have a lot of respect for on this committee especially some of the new folks. I just want to answer in the most plain spoken way I can possibly do. We're expected to evaluate a nominee who has a vast record and if you look -- a lot of numbers have been cited, 10,000 here, 40,000 here, 100,000 here, but in the entire body of his record, sir, we only have 10 percent of his record we've been able to evaluate. 90 percent of it has been withheld from senators, 90 percent of his record.

[10:45:12] So, we're asking to evaluate a candidate, to have intelligent questions and insights into his record, but we only have 10 percent of that record. We can go on and on about the numbers of documents, 100,000, 10,000, but the fact is we're about to proceed with a historic hearing. We're about to proceed towards having a hearing on someone having a lifetime appointment on the most important court in the land that will effectuate so many areas of American life, from civil rights to women's rights, to access to health care. All the stuff that's being decided and we're going into this only having 10 percent access to 10 percent of the body of work of this man's career. That seems to me just common sense, 90 percent is missing right now. Just common sense says we should have access to thoroughly evaluate this person.

We're not asking for anything out of the ordinary. Other candidates have been before -- people can talk about tens of thousands here, 100,000 here. But we've gotten far more for every Supreme Court justice that has been mentioned here, far more than just 10 percent, just a scan of it.

My colleagues talk about what our duty to the American public is, our duty to the American public is to evaluate a candidate on their body of work but we're not even getting released that, and why? Because some political person, not -- not a person that holds public office, not because - I mean it's unprecedented to think that this committee has seeded its role to a partisan outside lawyer.

And so, here we're about to go forward with just 10 percent of this person's record to evaluate to base our questions on, to investigate. 90 percent is being withheld. Just common sense would say that that's not fair, that's not right. It undermines our ability to do our job. It is just plain wrong.

GRASSLEY: One of the senators' most solemn constitutional duties is to provide advice and consent to the president on the nomination of Supreme Court justices. We're here this week to hear from Brett Kavanaugh, to hear about his exceptional qualifications, his record of dedication to the rule of law and his demonstrated independence and his appreciation of the importance of the separation of powers. Indeed to protect individual liberty, the framers designed a government of three coequal branches strictly separating legislative, executive and judicial powers. The framers intended for the judiciary to be immune from the political pressures the other two phase. That is so that judges would decide cases according to the law and not according to popular opinion.

Now, 230 years after ratification, our legal system is the envy of the world. It provides our people's stability, predictability, protection of our rights and equal access to justice, but this is only possible when judges are committed to the rule of law. Our legal systems' success is built on judges accepting that their role is limited to deciding cases and controversies. A good judge exercises humility and makes decisions, according to specific facts of the case, and of course, according to the law. A good judge never -


A good judge never bases decisions on his preferred policy preferences. A good judge also has courage, recognizing that we have an independent judiciary to restrain judges when that government exceeds lawful authority.

President Andrew Jackson said, quote, "All the right secured to the citizens under the Constitution are worth nothing and a mere bubble except guaranteed to them by an independent and virtuous judiciary." End of quote. Confirmation hearings for Supreme Court nominees are an independent -- are a very important opportunity to discuss appropriate role of judges.

[10:50:10] As I see it and I expect many of my colleagues will agree, the role of the judge is to apply the law as written even if the legal result is not one the judge personally likes. Justice Scalia has often been quoted because he was fond of saying, if a judge always likes the outcome of the cases he decides, he is probably doing something wrong. I don't want judges who always reach a liberal result or conservative result. I want a judge who rules the law the way the law requires. Judges must leave law making to the Congress, the elected representatives of the people. Judges and justices have lifetime appointments. They can't be voted out of office if they legislate, whereas if Congress legislates something the people don't like, then you can vote them out of office. That's why they're to interpret the law and not make law.

Now some have a very different view of what a judge's role should be. According to this few, judges should decide cases based upon particular outcomes in order to advance their politics but the American people don't want their judges to pick sides before they hear a case. They want a judge who rules based upon what the law commands. This is the reason why all Supreme Court nominees since Ginsberg have declined to offer their personal opinions on the correctness of precedent. Seeking assurances from a nominee on how he will vote in certain cases or how he views certain precedent undermines judicial independence and essentially asks for a promise in exchange for a confirmation vote.

It's unfair and unethical, indeed, what litigant could expect a fair shake if the judge has already prejudged the case before the litigant even enters the courtroom. I expect Judge Kavanaugh in fact, it's my advice to him to follow the examples sent by Justice Ginsberg and all nominee that's followed her, that a nominee should offer, quote, "no hints, no forecasts, no purviews" end of quote, on how they will vote.

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 settled law entitled to presidential 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 Burke. As Mark Pullum said in an op-ed over the weekend, quote, "The burking of Robert Burke taught special interest groups that they could demonize judicial nominees based solely on their world view. Worse character assassinations proved an effective tactic nearly sinking Justice Clarence Thomas's appointment four years later." But he also said, continuing to quote, "by confirming Judge Kavanaugh, the Senate can go some way toward atoning for shameful treatment of Justice Robert Burke 31 years ago," end of quote.

Judge Kavanaugh is one of the most qualified nominees, if not the most qualified nominee that I've seen. A graduate of Yale Law School, clerking three federal judges, including a man he nominated to replace. He spent all but three years of his career in public service and has served as a judge for 12 years on the D.C. circuit, the most influential federal circuit court.

[10:55:05] He has one of the most impressive records for lower court judge in the Supreme Court. In at least a dozen separate cases, the Supreme Court adopted positions advanced by Judge Kavanaugh. The American Bar Association whose assessment Democratic leaders have called the gold standard of judicial evaluations rated Judge Kavanaugh unanimously well-qualified.

A review of Judge Kavanaugh's extensive record demonstrates a deep commitment to the rule of law. He is written eloquently that both judges and federal agencies are bound by the law Congress enacts and he's criticized those who substitute their own judgment about what a statute should say for what the statute actually says.

After the president nominated Judge Kavanaugh, I said this would be the most sterile and transparent confirmation process in history. I say that statement even regarding all the discussion we've had this morning. It has proven to be from Judge Kavanaugh's authoring 307 opinions joined hundreds more amounting to more than 10,000 pages, if submitted, he submitted 17,000 pages of speeches, articles and other materials to the committee along with this 120 page written response to the questionnaire that the committee set out. These add up to 27,000 pages of Judge Kavanaugh's record already available to the American people and we received just shy of half a million pages of emails and other documents from Judge Kavanaugh's service as an executive branch lawyer which is more than we received for the last five Supreme Court nominees. Every one of these more than 483 pages of executive branch records are available to any senator 24/7.

I push for federal officials to significantly expedite public exposure process under federal law so that all Americans have online access to more than 290,000 pages of these records right now on our committee website. In short, the American people have unprecedented access and more materials to review Judge Kavanaugh than ever have had for Supreme Court nominee and to support the review of Judge Kavanaugh's historic volume of material I worked to ensure that more senators have access to more material than ever.

Since so much of the rest of my statement has been discussed this morning by what the Democrats have said and I've answered a lot of it, I'm going to put the last seven pages of my statement in the record and I'm going to ask Senator Feinstein if she has more to say on her opening statement and if she doesn't, I'll go to senator --

SEN. DIANNE FEINSTEIN (D-CA), RANKING MEMBER, JUDICIARY COMMITTEE: Thank you. I do, Mr. Chairman. I will probably truncate it even so. I think it's really important that people, as well as the judge, the nominee, understand how strongly we feel and why we feel that way. I want to talk a little bit about one of the big decisions that we have the belief that, although you told Senator Collins that you believed it was settled law, the question is really do you believe that its correct law and that's Roe v. Wade.

I was in the '50s and '60s, active but first as a student at Stanford. I saw what happened to young women who became pregnant. And then, subsequently I sat as an appointee of Governor Brown's on the term setting and paroling authority for women in California who had committed felonies. And so I sentenced women who had committed abortions to state prison and granted them paroles so came to see both sides -- the terrible side and the human and vulnerable side.

And when you look at the statistics during those days, those statistics of the Guttmacher Institure has put out are really horrendous. For you, the president that nominated you has said I will nominate someone who is anti-choice and pro-gun.