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Kavanaugh Supreme Court Hearing. Aired 1:30-2p ET

Aired September 4, 2018 - 13:30   ET


[13:30:01] SEN. AMY KLOBUCHAR (D), MINNESOTA: To me that means figuring out what your views are, judge, on whether a president is above the law. It is a simple concept we learned in grade school that no one is above the law, so I think it's a good place to start.

There were many highly credential nominees, like yourself, that could have been sitting before us today. But to my colleagues, what concerns me is that during this critical juncture in history, the president has handpicked a nominee to the court with the most expansive view of presidential power possible.

A nominee who has actually written that the president, on his own, can declare laws unconstitutional. Of course, we are very pleased when a judge submits an article to the University of Minnesota Law Review and even more so when that article receives so much national attention.

But the article you wrote that I'm referring to, Judge, raises many troubling questions. Should a sitting president really never be subject to an investigation? Should a sitting president never be questioned by a special counsel? Should a president really be given total authority to remove a special counsel?

KLOBUCHAR: In addition to the article, there are other pieces of this puzzle which demonstrate that the nominee before us has an incredibly broad view of the president's executive power. Judge Kavanaugh, you wrote, for example, in Seven-Sky v. Holder that a president can disregard a law passed by Congress if he deems it to be unconstitutional, even if a court has upheld it.

What would that mean when it comes to laws protecting the special counsel? What would that mean when it comes to women's health care? The days of the divine rights of kings ended with the Magna Carta in 1215.

And centuries later in the wake of the American Revolution, a check on the executive was a major foundation of the United States Constitution. For it was James Madison, who may not have a musical named after him but was a top scholar of his time, who wrote in Federalist 47, "The accumulation of all powers, legislative, executive and judiciary, in the same hands may justly be pronounced the very definition of tyranny."

So what does that warning mean in real life terms today? Here's one example. It means whether people like Kelly Gregory, an Air Force veteran, mother and business owner, who is here from Tennessee and who is living with stage IV breast cancer can afford medical treatment. At a time when the administration is arguing that protections to ensure people with pre-existing conditions can't be kicked off their health insurance are unconstitutional, we cannot and should not confirm a justice who believes the president's views alone carry the day.

One opinion I plan to ask about, when judges appointed by presidents of both parties joined in upholding the Consumer Financial Protection Bureau, you, judge, dissented. Your dissent concluded that the bureau, an agency which has served us well in bringing back over $12 billion to consumers for fraud -- from credit cards, to loans, to mortgages, was unconstitutional.

Or in another case, you wrote a dissent against the rules that protect net neutrality; rules that help all citizens and small businesses have an even playing field when it comes to accessing the Internet. Another example that seems mired in legalese but is critical for Americans, anti-trust law.

In recent years, a conservative majority on the Supreme Court has made it harder and harder to enforce the nation's anti-trust laws, ruling in favor of consolidation and market dominance. Yet, two of Judge Kavanaugh's major anti-trust opinions suggest that he would push the court even further down this pro-merger path. We should have more competition and not less.

Now to go from my specific concerns and end on a higher plane, all of the attacks on the rule of law and our justice system over the past year have made me -- and, I would guess some of my other colleagues on this committee, pause and think many times about why I decided to come to the Senate and get on this committee; and, much further back, why I even decided to go into law in the first place.

Now, I will tell you that not many girls in my high school class said they dreamed of being a lawyer. We had no lawyers in my family and my parents were the first in their families to go to college.

[13:35:00] But somehow, my dad convinced me to spend a morning sitting in a courtroom watching a state court district judge handle a routine calendar of criminal cases.

The judge took pleas, listened to arguments and handed out misdemeanor sentences. It was certainly nothing glamorous, like the work for the job you've been nominated for, judge. But it was important just the same.

I realized that morning that behind every single case, there was a story and there was a person no matter how small. Each and every decision the judge made that day affected that person's life. And I noticed how often he had to make that (ph) decisions, and had to take account of what his decisions would mean for that person and his or her family.

This week, I remembered that day and I remembered I had written an essay about it at the ripe old age of 17. I went back and looked at what I had said. It is something that I still believe today, and that is that to be part of an imperfect system, to have a chance to better that system was and is a cause worth fighting for, a job worth doing.

Our government is far from perfect, judge. Nor is our legal system but we are at a crossroads in our nation's history where we must make a choice. Are we going to dedicate ourselves to improving our democracy, improving our justice system, or not?

The question we are being asked to address in this hearing, among others, is whether this judge at this time in our history will administer the law with equal justice as it applies to all citizens, regardless of if they live in a poor neighborhood, or a rich neighborhood, or if they live in a small house or the White House.

Our country needs a Supreme Court justice who will better our legal system. A justice who will serve as a check and balance on the other branches of government, who will stand up for the rule of law without consideration of politics or partisanship, who will uphold our Constitution without fear or favor, and who will work for the betterment of the great American experiment in democracy. That is what this hearing is about. Thank you.

SEN. CHUCK GRASSLEY, R-IA.: Senator Sasse.

SEN. BENJAMIN SASSE, R-NE.: Thank you, Mr. Chairman. We need to get to Judge Kavanaugh, but I really want to riff with Amy for a while. She -- Amy -- Senator Klobuchar, you did Madison, Lin-Manuel Miranda, the Magna Carta and your dad...

KLOBUCHAR: Thank you. Thank you, I appreciate that.

SASSE: ... taking you to court. Well done. You were (ph)...

KLOBUCHAR: Thank you.

SASSE: ... I had all that on my bingo card. I -- I have -- I have little kids and I've taken my two little girls to court a few times, too. Mostly to juvie just to scare them straight, not to turn them into attorneys. But -- but that's not...

KLOBUCHAR: Who said that that wasn't what my dad was doing, Senator Sasse?

SASSE: There was wisdom in Minnesota.

Congratulations, judge, on your nomination. Actually, congratulations and condolences, this process has to stink. I'm glad your daughters could get out of the room and I hope they still get the free day from school.

Let's do some good news bad news. The -- the bad news first, judge, since your nomination in July, you've been accused of hating women, hating children, hating clean air, wanting dirty water. You've been declared a quote/unquote "existential threat" to our nation.

Alumni of Yale Law School, incensed that faculty members at your alma mater praised your selection, wrote a public letter to the school saying quote, "People will die if Brett Kavanaugh, is confirmed." This drivel is patently absurd. And I worry that we're going to hear more of it over the next few days.

But the good news is, it is absurd and the American people don't believe any of it. This stuff isn't about Brett Kavanaugh when screamers say this stuff for cable TV news. The people who know you better, not those who are trying to get on TV, they tell a completely different story about who Brett Kavanaugh is.

You've earned high praise from the many lawyers, both right and left, who've appeared before you during your 12 years on the D.C. Circuit and those who've had you as a professor at Yale Law and at Harvard Law. People in legal circles invariably applaud your mind, your work, your temperament, your collegiality, that's who Brett Kavanaugh is.

And to quote Lisa Blatt, a Supreme Court attorney from the left who's known you for a decade, quote, "Sometimes a superstar is just a superstar. And that's the case with this judge. The Senate should confirm him," close quote.

It's pretty obvious to most people going about their work today that the deranged comments actually don't have anything to do with you. So we should figure out why do we talk like this about Supreme Court nominations now. There's a bunch that's atypical in the last 19, 20 months in America.

Senator Klobuchar is right; the comments from the White House yesterday about trying to politicize the Department of Justice -- they were wrong, and they should be condemned, and my guess is Brett Kavanaugh would condemn them. But really the reason these hearings don't work is not because of Donald Trump. It's not because of anything in the last 20 months.


These confirmation hearings haven't worked for 31 years in America. People are going to pretend that Americans have no historical memory and supposedly there haven't been screaming protests saying women are going to die at every hearing for decades -- but this has been happening since Robert Bork. This is a 31-year tradition; there's nothing really new the last 18 months.

So, the fact that the hysteria has nothing to do with you means that we should ask, what's the hysteria coming from? The hysteria around Supreme Court confirmation hearings is coming from the fact that we have a fundamental misunderstanding of the role of the Supreme Court in American life now. Our political commentary talks about the Supreme Court like they're people wearing red and blue jerseys; that's a really dangerous thing.

And, by the way, if they had red and blue jerseys I would welcome my colleagues to introduce the legislation that ends lifetime tenure for the judiciary because if they're just politicians then the people should have power and they shouldn't have lifetime appointments. So until you introduce that legislation I don't believe you really want the Supreme Court to be a politicized body -- though that's the way we constantly talk about it now. We can, and we should do better than this. It's predictable that every confirmation hearing now is going to be overblown politicized circus and it's because we've excepted a new theory about how our three branches of government should work and in particular how the judiciary should work.

What Supreme Court confirmation hearings should be about is an opportunity to go back and do Schoolhouse Rock civics for our kids. We should be talking about how a bill becomes a law and what the job of Article II is and what the job of Article III is.

So let's try just a little bit. How did we get here and how can we fix it? I want to make just four brief points.

Number one -- in our system the legislative branch is supposed to be the center of our politics. Number two -- it's not. Why not? Because for the last century and increasing by the decade right now, more and more legislative authority is delegated to the executive branch every year. Both parties do it. The legislature is impotent, the legislature is weak, and most people here want their jobs more than they really want to do legislative work and so they punt most of the work to the next branch.

Third consequence is that this transfer of power means the people yearn for a place where politics can actually be done and when we don't do a lot of big actual political debating here, we transfer it to the Supreme Court and that's why the Supreme Court is increasingly a substitute political battleground in America. It is not healthy, but it is what happens and it's something that our founders wouldn't be able to make any sense of.

And fourth and finally, we badly need to restore the proper duties and the balance of power from our constitutional system.

So, point one; the legislative branch is supposed to be the locus of our politics, properly understood. Since we're here in this room today because this is a Supreme Court confirmation hearing we're tempted to start with Article III but really, we need Article III as the part of the Constitution that sets up the judiciary. We really should be starting with Article I, which is us. What is the legislature's job?

The constitution's drafters began with the legislature. These are -- these are equal branches but Article I comes first for a reason and that's because policymaking is supposed to be done in the body that makes laws. That means that this is supposed to be the institution dedicated to political fights.

If we see lots and lots of protests in front of the Supreme Court that's a pretty good litmus test barometer of the fact that our Republic isn't healthy, because people shouldn't be thinking they -- or protesting in front of the Supreme Court; they should be protesting in front of this body.

The legislature is designed to be controversial, noisy, sometimes even rowdy because making laws means we have to hash out the reality that we don't all agree. Government is about power. Government is not just another word for things we do together. The reason we have limited government in America is because we believe in freedom. We believe in souls. We believe in persuasion. We believe in love -- and those things aren't done by power.

But the government acts by power and since the government acts by power we should be reticent to use power. And so it means when you differ about power you have to have a debate and this institution is supposed to be dedicated to debate and should be based on the premise that we know since we don't all agree we should try to constrain that power just a little bit but then we should fight about it and have a vote in front of the American people and then what happens?

The people get to decide whether they want to hire us or fire us; they don't have to hire us again. This body is the political branch where policymaking fights should happen and if we are the easiest people to fire it means the only way that people can maintain power in our system is if almost all the politicized decisions happen here -- not in Article II or Article III.

So, that brings us to a second point. How did we get to a place where the legislature decided to give away its power?

We've been doing it for a long time. Over the course of the last century but especially since the 1930s and then ramping up since the 1960s a whole lot of the responsibility in this body has been kicked to a bunch of alphabet soup bureaucracies. All the acronyms that people know about their government or don't know about their government are the places where most actual policymaking -- kind of in a way, lawmaking -- is happening right now.


This is not what Schoolhouse Rock says. There's no verse of Schoolhouse Rock that says give a whole bunch of power to the alphabet soup agencies and let them decide what the government's decision should be for the people, because the people don't have any way to fire the bureaucrats. And so what we mostly do around this body is not pass laws. What we mostly do is decide to give permission to the Secretary or the administrator of bureaucracy X, Y, or Z to make law- like regulations; that's mostly what we do here.

We go home, and we pretend we make laws; no, we don't. We write giant pieces of legislation -- 1,200 pages, 1,500 pages long that people haven't read -- filled with all these terms that are undefined and we say the secretary of such and such shall promulgate rules that do the rest of our dang jobs.

That's why there's so many fights about the executive branch and about the judiciary, because this body rarely finishes its work -- and the House is even worse. I don't really believe that; it just seemed like you needed to try to unite us in some way.

So, I admit that there are rational arguments that one could make for the new system. That Congress can't manage all the nitty-gritty details of everything about modern government and this system tries to give power and control to experts in their fields, where most of us in Congress don't know much of anything or -- about technical matters for sure but you could also impugn our wisdom if you want -- but when you're talking about technical, complicated matters, it's true that the Congress would have a hard time sorting out every final dot and tittle about every detail.

But the real reason at the end of the day that this institution punts most of its power to executive-branch agencies is because it's a convenient way for legislators to have to -- to be able to avoid taking responsibility for controversial and often unpopular decisions.

If people want to get reelected over and over again and that's your highest goal, if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is a pretty good strategy. It's not a very good life but it's a pretty good strategy for incumbency.

SASSE: And so at the end of the day, a lot of the power delegation that happens from this branch is because that Congress has decided to self-neuter. Well, guess what? The important -- the important thing isn't whether or not the Congress has lame jobs; the important thing is that when the congress neuters itself and gives power to an unaccountable fourth branch of government, it means the people are cut out of the process.

There's nobody in Nebraska, there's nobody in Minnesota or Delaware who elected the deputy assistant administrator of plant quarantine at the USDA. And yet if the deputy assistant administrator of plant quarantine does something to make Nebraskans lives really difficult -- which happens to farmers and ranchers in Nebraska -- who do they protest to?

Where do they go? How do they navigate the complexity and the thicket of all the lobbyists in this town to do executive agency lobbying? They can't. And so what happens is they don't have any ability to speak out and to fire people through an election.

And so ultimately when the congress is neutered, when the administrative state grows, when there is this fourth branch of government, it makes it harder and harder for the concerns of citizens to be represented and articulated by people that the people know that they have power over. All the power right now or almost all the power right now happens off stage, and that leaves a lot of people wondering who's looking out for me.

And that brings us to the third point, the Supreme Court becomes our substitute political battleground. It's only nine people, you can know them, you can demonize them, you can try to make them messiahs, but ultimately because people can't navigate their way through the bureaucracy, they turn to the Supreme Court looking for politics.

And knowing that our elected officials no longer care enough to do the hard work of reasoning through the places where we differ, and deciding to shroud our power at times, it means that we look for nine justices to be super legislators. We look for nine justices to try to right the wrongs from other places in the process. When people talk about wanting to have empathy from their justices, this is what they're talking about.

They're talking about trying to make the justices do something that the Congress refuses to do as it constantly abdicates its responsibility. The hyperventilating that we see in this process and the way that today's hearing started with 90 minutes of theatrics that are preplanned with -- with certain members of the other side here, it shows us a system that is wildly out of whack, and thus a fourth and final point.

The solution here is not to try to find judges who will be policy makers. The solution is not to try to turn the Supreme Court into an election battle for TV. The solution is to restore a proper constitutional order with a balance of powers.


We need Schoolhouse Rock back, we need a congress that writes laws and then stands before the people and suffers the consequences and gets to go back to our own Mount Vernon if that's what the electors decide. We need an executive branch that has a humble view of its job as enforcing the law -- not trying to write laws in the congress's absence. And we need a judiciary that tries to apply written laws to facts and cases that are actually before it.

This is the elegant and the fair process that the founders created. It's the process where the people who are elected -- two and six years in this institution, four years in the executive branch -- can be fired because the justices and the judges, the men and women who serve America's people by wearing black robes, they're insulated from politics.

This is why we talk about an independent judiciary. This is why they wear robes. This is why we shouldn't talk about Republican and Democratic judges and justices. This is why we say justice is blind. This is why we give judges lifetime tenure. And this is why this is the last job interview Brett Kavanaugh will ever have, because he's going to a job where he's not supposed to be a super legislator.

So the question before us today is not what does Brett Kavanaugh think 11 years ago on some policy matter; the question before us is whether or not he has the temperament and the character to take his policy views and his political preferences and put them in a box marked irrelevant and set it aside every morning when he puts on the black robe.

The question is does he have the character and temperament to do that? If you don't think he does, vote no. But if you think he does, stop the charades, because at the end of the day, I think all of us know that Brett Kavanaugh understands his job isn't to rewrite laws as he wishes they were, he understands that he's not being interviewed to be a super legislator, he understands that his job isn't to seek popularity. His job is to be fair and dispassionate; it is not to exercise empathy. It is to follow written laws.

Contrary to the Onion-like smears that we hear outside, Judge Kavanaugh doesn't hate women and children, Judge Kavanaugh doesn't lust after dirty water and stinky air. No, looking at his record, it seems to me that what he actually dislikes are legislators that are too lazy and too risk-averse to do our actual jobs.

It seems to me that if you read his 300 plus opinions, what his opinions reveal to me is a dissatisfaction -- I think he would argue a constitutionally compelled dissatisfaction -- with power hungry executive branch bureaucrats doing our job when we fail to do it.

And in this view, I think he's aligned with the founders, for our constitution places power not in the hands of this city's bureaucracy, which can't be fired, but our constitution places the policymaking power in the 535 of our hands because the voters can hire and fire us.

And if the voters are going to retain their power, they need a legislature that's responsive to politics; not a judiciary that's responsive to politics. It seems to me that Judge Kavanaugh is ready to do his job. The question for us is whether we're ready to do our job.

Thank you, Mr. Chairman.

GRASSLEY: The example I always use to back up what Senator Sasse says about Congress not doing its job and delegating too much is the ObamaCare legislation that was 2,700 pages and there was 1,693 delegations of authority to bureaucrats to write regulations because Congress didn't know how to reorganize healthcare.

Senator Coons?

COONS: Thank you, Mr. Chairman. Welcome, Judge Kavanaugh, welcome to you and to your family and to your friends who are here.

As you know well, we went to the same law school; we clerked in the same courthouse in Wilmington, Delaware. So I've known you and your reputation for nearly 30 years. And I know well that you have a reputation as a good friend, a good classmate, a good roommate, as a good husband and family man, that you've contributed to your community -- I think we'll hear later today that you've even been a great youth basketball coach.

But frankly we're not here to consider you as the president of our neighborhood civic association or even to review whether you've been a great youth basketball coach. We're here to consider you for a lifetime appointment to the United States Supreme Court, where you will help shape the future of this country and have an impact on the lives of millions of Americans for literally decades to come.

And to make that decision to exercise our constitutional role, we have to look closely at your decisions, your statements, your writings to understand how you might interpret our constitution. The next justice will play a pivotal role in defining a wide range of critical issues, including the scope of the president's power in determining whether the president might be above the law.

The next justice will impact essential rights enshrined in our modern understanding of the constitution -- including the right to privacy, rights to contraception, intimacy, abortion, marriage, the freedom to worship as we choose, the ability to participate in our democracy as full citizens and the promise of equal protection.

That's because that come before the court aren't just academic or esoteric or theoretical; they involve real people and have real and lasting consequences. With the stakes this high, I deeply regret the process that's gotten us to the point, the excesses and partisan gamesmanship of the last few years and that history bears briefly repeating.

When Justice Scalia passed in February of 2016, I called the White House and urged then President Obama to nominate a jurist who could gain support from both sides of the aisle and help build a strong center on the court. And he did just that when he nominated Merrick Garland, Chief Judge of the D.C. Circuit, whom I know you also admire. But my Republican colleagues refused to even meet with him, much less hold a hearing or a vote on his confirmation.

During the 400 days that the majority refused to fill the Supreme Court vacancy then-President Trump also released a list of potential nominees to the court, a list compiled by two highly partisan organizations -- the Federalist Society and the Heritage Foundation. And after our president was elected, he picked from that list and nominated Neil Gorsuch to the Supreme Court.

When Judge Gorsuch testified before this very committee, he told us repeatedly how deeply he understood and respected precedent; he even cited a book on precedent he'd co-authored with you. But in his first 15 months of service, Justice Gorsuch has already voted to overrule at least five important Supreme Court precedents and to question many others.

To name just one, given it was just Labor Day, Justice Gorsuch voted to gut public sector unions, overturning a 41-year old precedent on which there were great reliance interests and impacting millions of workers across the country. My point is that Justice Gorsuch was confirmed to the court in one of the most concerningly partisan processes in Senate history, and only after the majority deployed the nuclear option to end the filibuster for Supreme Court nominations.

This brings us, Judge, to today and your nomination. When Justice Kennedy announced his retirement, I once again called the White House and urged through White House counsel that President Trump consider selecting someone for this seat who could win broad support from both sides of the aisle.

And Judge Kavanaugh, I'm concerned you may not be that nominee. Your record prior to joining the bench places you in the midst of some of the most pitched and partisan battles in our lifetimes -- from Ken Starr's investigation of President Clinton to the 2000 election recount -- recount, to the controversies of the Bush administration, including surveillance, torture, access to justice, and the culture wars.

So, Judge, it's critical that this committee and the American people fully examine your record to understand what kind of justice you would be, and unfortunately, as we've all discussed at length here today, that's been rendered impossible. The majority has blocked access to millions of pages of documents from your service in a critical role in the White House.

For the first time since Watergate, the non-partisan National Archives has been cut out of the process for reviewing and producing your records. Senate Republicans have worked to keep committee confidential nearly 200,000 pages of documents so that the public can't view them and we can't question based on them, and your former deputy's in charge of designating which documents this committee and the American people get to see.

Not only that, but for the first time in our history, the president has invoked executive privilege to withhold more than 100,000 pages of documents on a Supreme Court nominee from the Judiciary Committee. This leads to a difficult but important question, which is what might President Trump or the majority be trying to hide?

Mr. Chairman, I want to make an appeal -- to work together to restore the integrity of this committee. We are better than this process. We are better than proceeding with a nominee without engaging in a full and a transparent process. This committee is failing the American people by proceeding in this way, and I fully support the motions made by my colleagues earlier in this hearing, and regret that we proceeded without observing the rules of this committee.

That said, Judge Kavanaugh, I have reviewed the parts of your record that I've been able to access, and what I've been able to see from available speeches, writings, and decisions, and I -- I have to say, it troubles me. While serving on the bench, you've dissented at a higher rate than any circuit judge elevated to the Supreme Court since 1980, and that includes Judge Bork.

Your dissents reveal some views and positions that fall well outside the mainstream of legal thought. You've suggested, as has been referenced, that the president has the authority to refuse to enforce a law such as the Affordable Care Act were he to decide it was unconstitutional. You voted to strike down net neutrality rules, gun safety laws, the organization of the Consumer Financial Protection Bureau, and many of your dissents would undercut environmental protections or workers' rights or anti-discrimination laws, and you've recently praised Justice Rehnquist's dissent in Roe.

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 -