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Kavanaugh Supreme Court Hearing. 2-2:30p ET

Aired September 4, 2018 - 14:00   ET



SEN. CHRIS COONS, D-DE.: You've embraced an approach to substantive due process that would undermine the rights and protections of millions of Americans, from basic protections for LGBT Americans, to access to contraception, to healthcare, the ability -- ability for Americans to love and marry whom they wish.

I am concerned your writings demonstrate a hostility to affirmative action and civil rights, and most importantly, I believe you've repeatedly and enthusiastically embraced an interpretation of presidential power so expansive it could result in a dangerously unaccountable president at the very time when we are most in need of checks and balances.

I want to pause for a moment on this last point, because the context of your nomination troubles me the most. In reviewing your records, Judge, you've -- you've questioned the lawfulness of United States v. Nixon, an historic decision in which a unanimous court said the president had to comply with a grand jury subpoena.

You've questioned the correctness of Morrison v. Olson, a 30-year old precedent holding that Congress can create an independent counsel with the authority to investigate the president -- who the president can't just fire on a whim. You've questioned whether a president and his aides should be subject to any civil or criminal investigations while in office.

And given these positions about presidential power, which I view as being at one extreme of the record of circuit judges, we have to confront an uncomfortable but important question about whether President Trump may have selected you, Judge Kavanaugh, with an eye toward protecting himself.

So, Judge Kavanaugh, I'm going to ask you about these issues, as I did when we met in my office, and I expect you to address them. When we spoke, you agreed that we have a shared concern about the legitimacy of the Supreme Court -- that it is critical to our system of rule of law. In my view, it is today in jeopardy.

You're participating in a process that has featured unprecedented concealment and partisanship around your record, and a few moments ago, Senator Durbin proposed a bold step, which would be for you to support suspending this hearing until all your records are produced and available to this committee and the American people, and I encourage you to do this.

There's also members of both parties who have not stated how they will vote on your nomination, and I urge you to answer our questions about your prior work, about your writings, about precedent and the constitution itself, to trust the American people, and to help build our trust in the court on which you may well soon serve.

I've been to too many hearings in which judicial nominees have told us they'll even-handedly apply the text of laws or the Constitution, only to watch them ascend to the bench and whittle away individual rights of Americans or narrow or overturn long-settled precedent.

This Supreme Court vacancy comes at a critical time for our country, when our institutions of law and the very foundations of our democracy are being gravely tested. If we're going to safeguard the rule of law in this country, our courts, and in particular, our Supreme Court must be a bulwark against unprecedented violations of law, deprivations of freedom, and abuses of power by anyone -- including our president.

No one said it better than our former colleague, Senator McCain, who once asked about America, what makes us exceptional? Is it our wealth, our natural resources, our military power, our big and bountiful country? No, it's our founding ideals and our fidelity to them and our conduct in the world; they are the source of our wealth and power -- that we live under the rule of law.

That enables us to face threats with confidence that our values make us stronger than our enemies.

Judge Kavanaugh, we are here to determine whether you would uphold or undermine those founding ideals and the rule of law. We're here to determine whether you would continue in the traditions of the court, or transform it into a body more conservative than a majority of Americans.

We're here to determine whether your confirmation would compromise or undermine the legitimacy of the court itself. I urge you to answer our questions and to confront these significant challenges; these are weighty questions, and the American people deserve real answers.

Thank you, and I look forward to your testimony.

GRASSLEY: Yeah. You can easily get the impression, not just from Senator Coons, but other senators that somehow you, Judge Kavanaugh, are out of the mainstream some way. So I looked at your record in the D.C. Circuit and have found the judges have agreed with you and your rulings in an overwhelming majority of matters across the board; 94 percent of the matters Judge Kavanaugh heard were decided unanimously.

[14:05:00] In 97 percent of the matters Judge Kavanaugh heard he voted with the majority. Judge Kavanaugh issued dissenting opinions in only 2.7 percent of the matters that you heard. I would also like to clarify what the Presidential Records Act requires. Our documents process has fully complied with the Presidential Records Act, under the federal statue President Bush has the right to request his own administration records. He also has the authority to review his records before the Senate

receives them. Indeed the Archives may not produce them to the committee without giving President Bush and his statutory representatives an opportunity to review first. This is what President Bush has done, and the -- the National Archives does not have the authority to second guess President Bush's decision to release records to us.

The National Archives was not cut out of the process, as President Bush's representative informed the Committee, quote, "because we have sought, received and followed NARA, that means the archivists' views on any documents withheld as personal documents, the resulting productions of documents to the committee is essentially the same as if the archivists had conducted its review first, and then sought our views and the current administration views as required by law."

Senator Flake?

FLAKE: Thank you, Mr. Chairman. Congratulations, Judge Kavanaugh, and congratulations to your family as well.

Let me just say a few things about the issue that has been discussed here a lot today -- the issue of documents and document production. The standard, historically, that we use to look at it -- nominees is -- what is relevant and probative? I would suggest that we certainly get that from the 12 years you've served on the Circuit court, on the D.C. Circuit court, that considers when you look at the docket, items that, you know, more than any other Circuit court that the Supreme Court would be, perhaps, called to rule on.

In the past, senators on this panel have argued on both sides of the aisle that confirming a judge -- confirming a judge, the best we can look at is his or her judicial record. You have that record, and it's a long one. Over 300 opinions, and I would suggest that that's where we need to start.

A lot of the other records have been discussed are mainly (ph) duplicative administrative documents. Many do not meet the standard or relevant or probative. They may not demonstrate the type of justice that you will be.

Senator Sasse talked about what we are called to do here is to look at your temperament, your judgment, your character -- and I think you can see a lot of that by the type of life you've lived outside of the courtroom. When we met in my office I was impressed, obviously with your respect for the law, and quick intellect, but also struck by kindness and decency.

I found out that we share deep love of sports; we both played football back in the day. I'm sure you're looking forward to this weekend -- not just when these hearings are concluded -- but when the Redskins and Cardinals play on Sunday. I learned that you've run the Boston Marathon twice; I wonder if the ABA took that in to account when they gave you favorable rating?

I'm not sure what that says about your soundness of mind, myself, but in all seriousness training for a marathon -- completing two marathons like this is a huge accomplishment. It demonstrates not just your competitive spirit but a strong sense of purpose and commitment, and says something about your temperament and character. Of course, you have no greater commitment than to your family, your wife Ashley, and your two daughters.

I know that you beam with pride when talking about them, and talking about, as has been mentioned earlier, coaching your daughter's elementary school basketball teams. I have a letter for the record, written by a group of parents whose girls play for basketball teams that Judge Kavanaugh coaches, and with -- Mr. Chairman, without objection -- I'd like to enter that letter in to the record.

GRASSLEY: So ordered.

[14:10:00] FLAKE: The teams' parents note that Judge Kavanaugh has been a devoted coach and a mentor to their daughters. As these parents note, "Coach K" -- and that's new, you, not the Duke, famous one -- stresses the importance of playing as a team and has provided their girls the opportunity to learn about teamwork, honesty, integrity, humility, respect, discipline, hard work, and competitiveness. Again, we're going back to temperament and character.

Judge Kavanaugh, whose dedication and commitment as a volunteer basketball coach, I think demonstrates and says a good deal about that character. And congratulations to you and the Blessed Sacrament Bulldogs for winning the city championship this past year. I know you must be proud of your team. Aside from running marathons, winning basketball championships, you spent -- as I mentioned -- the last 12 years as a Federal Appeals Court judge on the D.C. Circuit.

You have earned a reputation among legal commentators and colleagues on both sides of the aisle of a solid, careful judge, a thorough and clear writer, and someone who promotes collegiality on the court, working with people across ideological lines.

FLAKE: I have also a "New York Times" article for the record, written by Professor Akhil Amar, the self-professed liberal who describes Judge Kavanaugh as one who appreciates the craft of judging with seriousness and commands wide and deep respect among scholars, lawyers, and jurors across the political spectrum. Mr. Chairman, I'd like to submit that for the record as well.

GRASSLEY: Without objection, so ordered.

FLAKE: As I mentioned, Judge Kavanaugh, has amassed a astonishingly distinguished and extensive record, writing more than 300 opinions joining his colleagues and issuing thousands of additional cases.

And that is where we need to look first when we're looking at -- at how you will judge on the Supreme Court. Now I know, and it has been brought up today, that a lot of concern on the other side of aisle stems from the concern of an administration that doesn't seem to understand and appreciate separation of powers and the rule of law.

I have that concern as well. If you just look at what was said just yesterday by the president, I think it's very concerning. He said in a tweet, "Two long running Obama era investigations of two very popular republican Congressmen were brought to a well publicized charge just ahead of the midterms by the Jeff Sessions' Justice Department", he calls it.

"Two easy wins now in doubt because there is not enough time. Good job Jeff." That is why a lot of people are concerned about this administration and why they want to insure that our institutions hold. Thus far they have, gratefully. Jeff Sessions has resisted pressure from the president to punish his enemies and relieve pressure on his friends.

And many of the questions that you will get on the other side of the aisle and from me will be how you view that relationship, where you believe Article One powers and Article Two powers of the administration begin.

So I expect to have a number of questions on that subject. I, again, appreciate your willingness to put yourself through this process and I look forward to the hearing moving ahead in the next week. Thank you, Mr. Chairman.

GRASSLEY: OK. Senator Blumenthal.

BLUMENTHAL: Thank you, Mr. Chairman. Thank you, Mr. Chairman, for your conducting these hearings as fairly and patiently as you have and I am going to be remarking further on what procedurally I think is appropriate here.

But I want to begin by thanking Judge Kavanaugh and your family for your commitment to public service. I want to thank the many, many Americans who are paying attention to this hearing, not only in this room but also across the country.

I want to thank them for their interest and indeed their passion. That is what sustains democracy; that commitment to ordinary everyday Americans, participating and engaging in this process.


There is a t-shirt worn by a number of folks walking around this building. It says, "I am what's at stake." This vote and this proceeding could not be more consequential in light of what is at stake whether women can decide when they want to have children and become pregnant, whether the people of America can decide whom they would like to marry; whether we drink clean water and breathe clean air; whether consumers are protected against defective product and financial abuses; and whether we have a real system of checks and balances or alternatively an Imperial Presidency.

I will not cast a vote more important than this one and I suspect few of my colleagues will as well. And what's at stake is indeed also the rule of law. My colleague Senator Flake quoted the president's tweet yesterday. I'm going to repeat it.

"Two long running Obama era investigations of two very popular republican congressmen were brought to a well publicized charge just ahead of the midterms by the Jeff Sessions' Justice Department. Two easy wins now in doubt because there is not enough time. Good job, Jeff."

I've had my disagreements with this Department of Justice. I want to note for the record that at least one high ranking member of the Department of Justice was in this room. I want to urge the Department of Justice to stand strong and hold fast against this onslaught, which threatens the basic principles of our democracy.

And I want to join my colleague, Senator Sasse, in his hope that you, Jude Kavanaugh, would condemn this attack on the rule of law and our judiciary, because at the end of this dark era when the history of this time is written, I believe that the heroes will be our independent judiciary and our free press.

You are nominated by that very president who has launched this attack on our Department of Justice, on the rule of law, on law enforcement like the FBI, law enforcement at every level who's question -- who's integrity he has questioned, and your responses to our questions will be highly enlightening about whether you join us in defending the judiciary and the rule of law.

That very president has nominated you in this unprecedented time. Unprecedented because he is an unindicted co-conspirator who has nominated a potential justice who will cast the swing vote on issues relating to his possible criminal culpability.

In fact, whether he is required to obey a subpoena, to appear before a grand jury, whether he is required to testify in a prosecution of his friends or associates or other officials in his administration, and whether in fact he is required to stand trial if he is indicted while his is President of the United States.

There is a basic principle of our constitution. And it was articulated by the founders. No one can select a judge in his own case. That's what the president is potentially doing here -- selecting a justice on the Supreme Court who potentially will cast a decisive vote in his own case. That is a reason why this proceeding is so consequential.

[14:20:00] Senator Sasse urged us to do our job; I agree. Part of our job is to review the record of the nominee as thoroughly and deliberately as possible, looking to all the relevant and probative evidence. We can't do that on this record.

Mr. Chairman, you have said multiple times that your staff has already reviewed the 42,000 pages of documents produced to this committee at 5:41 p.m. yesterday. Both sides are using the same computer platform to review the documents from Mr. Burke. The documents had to be loaded into this platform overnight and couldn't be concluded until 6:45 a.m. this morning.

How is it possible that your staff concluded its review last night before the documents were even uploaded? That's this platform that both sides are using here. It's simply not possible, Mr. Chairman, that any Senator has seen these new materials -- much less all of the other relevant documents that have been screened by Bill Burke, who is not the national archivist.

And this situation -- when we say it's unprecedented, it is truly without parallel in our history -- and I'm going to quote from the national archivist, it's, quote, "something that has never happened before." And the archivist continued, "this effort by former President Bush does not represent the National Archives or the George W. Bush Presidential Library."

So, Mr. Chairman, I renew my motion to adjourn so that we have time to conclude our review of these documents and so that also my request under the Freedom of Information Act which is now pending to the national archivist, to the Department of Justice, to other relevant agencies can be considered and judged. That Freedom of Information Act will require some time I assume to conclude.

I renew my motion, Mr. Chairman, and ask for a vote on the motion to adjourn. As I said earlier, Rule IV provides, quote, "the committee Chairman shall" -- shall, not may -- "shall entertain a non-debatable motion to bring a matter before the committee to a vote." That seems pretty clear to me, Mr. Chairman. I've made a motion to bring before the committee a motion to adjourn under the rules. With all due respect, you are required to entertain my motion.

And I would just add this final point -- all of these documents will come out. They will come out eventually -- as soon as 2019 and 2020. By law, these documents belong to the American people. They don't belong to President Bush or President Trump; they belong to the American people. It's only a matter of time, my Republican colleagues, before you will have to answer for what's in these documents. We don't know what's in them, but the question is, what are they concealing that you will have to answer to history for?

Mr. Chairman, I renew my motion to adjourn.

GRASSLEY: You quote the rules very accurately, but those rules apply to executive business session. We're not in an executive business session so I deny your motion.

BLUMENTHAL: Mr. -- Mr. Chairman, with all due respect, I ask you to point to me the language in Rule IV or anywhere else in our rule that limits its scope to executive business meetings. There is no such language, Mr. Chairman.

GRASSLEY: I would have you quote language to the -- to the contrary...

BLUMENTHAL: Could you quote me that language?

GRASSLEY: No. I'm asking you. You quote me a language to the contrary of what I wrote.

BLUMENTHAL: There is no language to the contrary. I'm asking for a vote in this session now. There's nothing that precludes a vote in our hearing at this exact time.

GRASSLEY: OK. I've ruled. You want to proceed, do you?


BLUMENTHAL: Well, if the Chair, with all due respect, is ruling against me, I move to appeal the ruling of the Chair. With all due respect, the Chairman is not above the rules of the committee. I ask for a roll call vote to overturn the ruling of the Chair and to allow for a vote on my motion to adjourn these proceedings.

GRASSLEY: That would be an appropriate motion if we were in executive business session but we're not in executive business session, so it's denied.

BLUMENTHAL: Mr. Chairman, I will proceed under protest. We've had a lot of rhetoric so far about rules and norms. I am very regretful that the Chair has adopted this stance which, in my view, contradicts our basic norms and rules but I will proceed.

PROTESTER: Take the vote. Save what's left of our democracy. Take it now.

BLUMENTHAL: Mr. Chairman, I have fears about what this nominee will do with respect to our rule of law but also about basic rights that have been established by past Supreme Court precedent and the only way to test what his fidelity to the rule of law is, in fact, is to ask as I have asked every judicial nominee coming before me when I have served on this committee and hearings -- whether he believes past decisions of the Supreme Court were correctly decided.

So, I'm going to be asking you, Judge Kavanaugh, whether you believe Roe v. Wade was correctly decided. I'm going to be asking you ...

(UNKNOWN): Mr. Chairman -- Mr. Chairman, may I ask a question? I was under the impression each of us had 10 minutes for an opening statement. We'll have 50 minutes for questions.

GRASSLEY: Let me -- let me clarify.

(UNKNOWN): And plus I would ask, Mr. Chairman ...


BLUMENTHAL: ... well, I -- I don't -- I ...

(UNKNOWN): ...the various members have been making speeches all day long and have not been confined time saw their 10-minute opening statement.

GRASSLEY: Yeah. OK. Well, like I told you...


BLUMENTHAL: I think I have time left on my ...

GRASSLEY: Yeah, you -- you will have time. I'm going to let you finish. Just a minute. I was hoping that the 10-minute rule would stand but we got off to a very bad start ...


PROTESTER: ... motion to (ph) ...

GRASSLEY: ... and -- and we -- and we got off to a bad start and everybody started exceeding their time limit. So, I guess, as long as we have to -- we have to stay here and get this all done, today. If we have to stay into the night, we're going to stay. But I'm not going to cut anybody off now that I didn't do it right away.

And like you said, mob rule, I've always said to myself when advising other people, either you run the committee, or the committee runs you. And I let the...


GRASSLEY: ... And I let committee run me this time. So, let's just proceed as we have and let Senator Blumenthal take what time he wants. I hope he won't go too long.

BLUMENTHAL: I'll be very judicious, Mr. Chairman.

GRASSLEY: Thank you.

BLUMENTHAL: Thank you.

GRASSLEY: I don't know what that means.

FEINSTEIN: Yes, I don't either. He's not answering (ph).

GRASSLEY: I'm sorry, Senator Cornyn. I can't agree with you. We'll just proceed. Senator Blumenthal.

BLUMENTHAL: Thank you, Mr. Chairman.

CORNYN: Next time, Mr. Chairman.

BLUMENTHAL: So, I will be asking Judge Kavanaugh whether he believed Roe v. Wade was correctly decided, whether you believe Brown v. Board of Education was correctly decided.

Judicial nominees have figured out all kinds of ways to avoid answering that question. First, they said they felt it would violate the canons of ethics. There are no canons of ethics that preclude a response. Then they said that they felt a decision might come before them, an issue in a case that might arise.

And more recently, they've adopted the mantra that they think all Supreme Court decisions are correctly decided. But you're in a different position. You've been nominated to the highest court in the land and your decisions, as a potential swing vote, could overturn even well settled precedent.

And there are indications in your writings, your opinions, as well as the articles you've written, and some of the memos that have come to light, that you believe, for example, Roe v. Wade could be overturned. And that's why I want to know from you whether you think it was correctly decided in the first place, and other decisions that are regarded as well settled, or long established.

In fact, I have these fears because, Judge Kavanaugh, this system and process has changed so radically. In fact, you have spent decades --