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

Aired September 5, 2018 - 13:00   ET


[13:00:00] SEN. DICK DURBIN, D-IL.: -- in our meetings and there are e-mails that support that fact. You were involved -- and this is one I want to be specific about -- you were involved with President Bush's 2005 signing statement on Senator John McCain's amendment banning cruel, inhuman and degrading treatment of detainees, and you confirm that in the meeting.

There were no exceptions in your answer given to me in 2006, not for litigation or detainee access to counsel or the McCain torture amendment. So if those three, based on the limited documents which we've been given are obvious, what were you trying to tell me here?

Did you really disclose accurately your role?

KAVANAUGH: Yes. I understood the question then and my answer then and I understood...

PROTESTER: (OFF-MIKE) Disable people have human rights. We're allowed to make our own (inaudible) decisions.

DURBIN: Go ahead.

KAVANAUGH: I understood the question then and the answer then and I understand the question now and the answer now to be 100 percent accurate. You were concerned about whether I was involved in the program that two other nominees had been involved in.

And the report that Senator Feinstein produced, the Justice Department report, they showed that I wasn't. In other words, the program -- crafting the program for the enhanced interrogation techniques for the detainees...

DURBIN: Mr. -- Judge Kavanaugh, that's not the question. Do you see me asking you whether you crafted the program? I didn't. I asked you about your involvement in the Haynes judgment, and then you went further...

KAVANAUGH: Crafting...

DURBIN: ... Yes, then you went further. You violated the second rule I give to every witness, you answered more than I asked.

KAVANAUGH: I adhered to the first one, I told the truth.

DURBIN: Well you volunteered more information than I asked, and you went further than you should have. Because in the three specific instances that I've given you, you clearly were involved in questions about rules governing detention of combatants.

KAVANAUGH: So I understood the question then, and I understand it now and my answer about that -- that program. I told the truth about that and in the reports that have come out subsequently have shown that I've told the truth about that.

My name is not in those reports. Now, for the -- the 2005 signing statement, by that time I'm in Staff Secretary Office, and everything that went to the president's desk -- everything that went to the president's desk with a few covert exceptions would have somehow crossed my desk on the way.

So you asked, I said on the signing statement, it would've crossed my desk on the way, so would a speech draft on the Iraq War, so would a speech -- you know those things would have crossed my desk. Prepared by others, not prepared by me, but they crossed my desk on the way to the president.

DURBIN: In the 2006 hearing, you told Chairman Arlen Specter you gave President Bush advice on signing statements, including quote "identifying potential constitutional issues in legislation." Did you make any comments regarding the December 30th, 2005 signing statement on the McCain torture amendment, including potential constitutional issues?

KAVANAUGH: I can't recall what I said. I do recall that there was a good deal of internal debate about that signing statement, as you can imagine there would be. I remember that it was controversial internally and I remember that I thought -- and I can't remember all of the ins and outs of who thought what -- but I do remember that it -- the Counsel of the President was in charge ultimately of signing statements in terms of the final recommendation to the President.

DURBIN: And just a few months later, you under oath told us you were not involved in any of the questions about the rules governing detention of combatants.

KAVANAUGH: That -- Senator, again, we were -- at least I understood it then and I understand it now to be referring to the program we were talking about that was very controversial that Senator Feinstein spent years trying to dig into. And I was -- in that -- I was not read into that program. I told the truth about that and...

DURBIN: Let me go to another area of questioning if I can. Thank you very much.

In your dissent in Garza v. Hargan, you wrote that the court had created, quote, "a new right for unlawful immigrant minors in the United States government detention to obtain immediate abortion on demand, thereby barring any government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision."

[13:05:00] You argued that permitting the government additional time to find a sponsor for a young woman in the case did not impose an undue burden, even though the government's conduct in the case had already forced her to delay her decision on an abortion by several weeks.

We are talking about a young woman characterized as Jane Doe who discovered that she was pregnant after crossing the border into the United States. She made a personal decision that she was not ready to be a parent and did not want to continue her pregnancy.

She went through every step necessary to comply with Texas state law, as well as steps forced on her by the federal government. She visited a religious anti-abortion crisis pregnancy center, she underwent an ultrasound for no medical purpose, and she went before a judge and obtained a judicial bypass of the state's parental consent requirements.

In other words, this young woman complied with every legal requirement including Texas state requirements placed in front of her so she could move forward with her decision, a decision affecting her body and her life.

Do you believe that this was an abortion on demand?

KAVANAUGH: Senator, the Garza case involved first and foremost a minor; it's important to emphasize it was a minor.


KAVANAUGH: So she had been -- and she's in an immigration facility in the United States. She's from another country, she does not speak English, she's -- and she's by herself. If she had been an adult, she would have a right to obtain the abortion immediately.

As a minor, the government argued that it was proper or appropriate to transfer her quickly first to an immigration sponsor. Who is an immigration sponsor, you ask? It is a family member or friend who she would not be forced to talk to, but she could consult with if she wanted about the decision facing her.

So we had to analyze this first as a minor and then for me, the first question was, what's the precedent? The precedent on point from the Supreme Court is there is no case on exact point, so you do what you do in all cases -- you reason by analogy from the closest thing on point.

What's the closest body of law on point? The parental consent decisions of the Supreme Court, where they've repeatedly upheld parental consent laws over the objection of dissenters who thought that's going to delay the procedure too long, up to several weeks.

And I'm getting -- I'm getting to the point -- I'm getting to the point.

DURBIN: Judge -- well, I -- before you get to the point, you've just bypassed something. You just bypassed the judicial bypass, which she received from the state of Texas when it came to parental consent. That's already happened here.

KAVANAUGH: But that -- that...

DURBIN: And you're still stopping her.

KAVANAUGH: I -- I -- I'm not. The -- the government is arguing that placing her with an immigration sponsor would allow her, if she wished, to consult with someone about the decision. That is not the purpose of the state bypass procedure, so I just want to be very clear about that.

DURBIN: But Judge, the clock is ticking.


DURBIN: The clock is ticking. A 20 week clock is ticking.


DURBIN: She made the decision early in the pregnancy, and all that I've described to you and the judicial decisions, the clock is ticking. And you are suggesting that she should've waited to have a sponsor appointed who she may or may not have consulted in making this decision.

KAVANAUGH: Again, this is -- I'm a Judge; I'm not making the policy decision. My job is to decide whether that policy is consistent with law. What do I do? I look at precedent, and the most analogous precedent is the parental consent precedent.

From Casey has this phrase, so page 895 -- "minors benefit from consultation about abortion" -- it's a quote, talking about consultation with parents.

DURBIN: So you're add -- you are adding a requirement here beyond the state of Texas requirements that there be some sponsor chosen who may or may not be consulted for this decision...


DURBIN: ... and the clock is ticking on her pregnancy.

KAVANAUGH: A couple of things there, Senator. You said you are adding. I'm not adding; I'm a Judge. The policy's being made by others. I'm deciding whether the policy is then consistent with Supreme Court precedent.

There are two things to look at in this context, Senator. First is the -- is the government's goal reasonable in some way? And they say we want the minor to have the opportunity to consult about the abortion. Well the Supreme Court precedent specifically says -- specifically says that that's an appropriate objective.

DURBIN: Was that a state requirement?

KAVANAUGH: The second -- the second question... DURBIN: Was that a state requirement?

KAVANAUGH: The second question is the delay, your point. In the parental consent cases of the Supreme Court recognize that there could be some delay because of the parental consent procedures. And in fact Justices Marshall, Brennan and Blackmun repeatedly dissented in cases because they thought the delay was too long.


I quoted all of that in my Garza opinion, and I made clear it had to happen very quickly and I looked at the time of the pregnancy to make sure it -- on safety, I specifically talk about safety. I specifically say that government cannot use this as a ruse to somehow prevent the abortion.

I spent a paragraph talking about she was in an undeniably difficult situation, so as I was saying to Senator Graham earlier I tried to recognize the real world effects on her. I said -- I consider the circumstances. She's a 17 year old by herself in a foreign country in a facility where she's detained and she has no one to talk to and she's pregnant.

Now that is a difficult situation, and I specifically recognized and tried to understand that. And then as a Judge, not the policymaker, I tried to understand whether the government's policy was consistent with the Supreme Court's precedents.

And I did the best I could, and I said on those parental consent precedents -- I said look, some people disagree with those precedents and think those kinds of statutes should not be allowed. But I had to -- I -- precedent's not like a cafeteria where I can take this but not that.

I had to take Casey in completely. Casey re-affirmed Roe...

DURBIN: I -- I have some other questions, so I ask you if you please...

KAVANAUGH: Well, it's an important question though and I want to make sure...


DURBIN: It's a critical question. It's a...

KAVANAUGH: And I did my -- I did my level best in a emergency posture. So what -- I had basically two days to do this case.

DURBIN: It's two-to-one, en banc decision, which you dissented from, correct?

KAVANAUGH: I -- I did the best to follow precedent, and as I always try to do to be as careful as I can in following the precedent of the Supreme Court.

DURBIN: Let me ask you a personal question: What's the dirtiest, hardest job you've ever had in your life?

KAVANAUGH: I worked construction when I was -- the summer after I was 16 for a summer, 7 a.m. to 3:30 p.m. My dad dropped me off every morning at 7:00 -- 6:55. He wanted me to be early. And that's -- that's probably the one.

I also, I should say, Senator, I -- I had a what -- one person, I guess, as a lawn business for many summers -- business. You know, I cut a lot of lawns, and that's how I made some cash when I was -- I started that probably eighth grade, maybe seventh grade. I -- I would cut my parents' lawn, but then I cut a lot of lawns in the neighborhood, and actually distributed flyers to -- all over the place to say, "If you need your lawn cut, call me." So lawn cutting, and then the construction job the one summer.

DURBIN: My dirtiest job I ever had was four summers working in a slaughterhouse.


DURBIN: I always wanted to go back to college.


DURBIN: Couldn't wait to get out of there. It was unbearable. It was dirty. It was hot. The things I did were unimaginable, and I wouldn't even start to repeat them.

Then came a case before you called Agri Processor Company v. NLRB.

At least a third of the workers, Judge Kavanaugh, in our nation's slaughterhouses are immigrants. It stands visits to Iowa or Illinois, probably Delaware -- you pick it. You're going to find a lot of immigrants doing these miserable, dirty, stinking, hot jobs. Many of them are undocumented. The work is low-paid and dangerous, and as the GAO has noted, immigrants are pressured not to even report injuries on the job.

Agri Processors' case was a notorious meatpacking company owned by Sholom Rubashkin, who was convicted of 86 counts of fraud and money laundering in 2009. His 27-year sentence recently was commuted by President Trump. Agri Processors had, at the core of its business model, the exploitation of undocumented workers. Half their workers, almost 400 of them, were not authorized. Workers alleged the company fostered a hostile workplace environment that included 12-hour shifts without overtime pay, exposure to dangerous chemicals, sexual harassment and child labor. A truck driver at Agri Processors' Brooklyn warehouse told reporters, quote, "We were treated like garbage, and if we said anything, we got fired immediately."

Judge Kavanaugh, you've bent over backwards to take the company's side against these workers. In a 2008 D.C. Circuit case, Agri Processor v. NLRB, your dissent argued that this company's workers should be prohibited from unionizing, because they did not fit your definition of an employee.


To reach this conclusion, you imported a definition of employee from a totally different statute. You ignored the plain language of the controlling statute, the National Labor Relations Act, which has a broad definition of employee, as well as binding Supreme Court precedent. The majority in this case -- and you were a dissenter -- the majority in this case noted that their opinion stuck to the text of the National Labor Relations Act and to the 1986 Immigration Reform and Control Act, which did not amend the National Labor Relations Act. They said that your dissent -- these other judges said about your dissent -- would, quote, "abandon the text of the controlling statute," and lead to a, quote, "absurd result." The majority in this decision included one Republican- and one Democratic-appointed judge.

Judge Kavanaugh, you claim over and over again to be a textualist, to be carefully weighing every word of a statute.


DURBIN: So why did you go out of your way to interpret the word "employee" in a way that benefited this horrible business and disadvantaged these exploited workers? Why didn't you stick to the plain language of the controlling statute and the binding Supreme Court precedent?

KAVANAUGH: Because the Supreme Court precedent compelled me to reach the results that I reached, and here's why, Senator. Let me explain.

The Supreme Court had a case in 1984 called the Sure-Tan decision, and the Sure-Tan decision considered the interaction of the National Labor Relations Law -- Act, and the immigration laws. And what the -- what the Supreme Court did in Sure-Tan is had this question, and said it is, at that time, permissible to consider an immigrant unlawfully in the country as an employee under the National Labor Relations Act.

And in Part 2B of the opinion -- you have to read Part 2B of the opinion, of the Supreme Court's opinion. If you read Part 2B of the opinion, the court then goes on to say, "and because the immigration laws do not prohibit employment of people unlawfully in the country," and makes clear the Supreme Court makes clear -- this is when it's being considered in Congress in '84. It ends up in the '86 act. The court makes clear, as I read Part 2B, and I think I'm correct on this, that if the immigration laws did prohibit employment of someone here unlawfully in the country, then that would also mean that they can't vote in the union elections.

So what I was doing there, Senator, it's all about precedent. I read that, and I -- my opinion, I -- if you look at the dissenting opinion, I really parsed this very carefully, and I went deep into this case. So I went back and pulled the -- from the Sure-Tan case, I went and asked for the Marshall papers, Thurgood Marshall papers, from the library to read all the memos that went back and forth among the justices in the Sure-Tan case.

I cited the oral argument to make sure that they -- that what I was reading in there was actually reflected what had been going on in the Supreme Court. And it is quite clear from the oral argument, they were aware that the immigration law was about to be changed, and they were aware of the interaction between the labor law and the immigration law. So I think I -- I stand by what I wrote then, and I think I correctly analyzed Part 2B.

Now, Senator, did it...

DURBIN: I'm going to -- I -- I have to...

KAVANAUGH: If it ends...

DURBIN: I'm running out of time here, so...

KAVANAUGH: I know, but if it ends -- your -- if -- if the Supreme Court Sure-Tan opinion had ended at Part 2A, hundred percent would agree with you, and my decision would have been different.

DURBIN: Well, let me just say, you said...

KAVANAUGH: If you read Part 2B, I think you'd see...

DURBIN: You said earlier today, you don't get to pick and choose which Supreme Court precedent you follow. The majority on Agri Processors' case was following Supreme Court precedent. In the Sure-Tan case, the Supreme Court, a seven-to-two decision, said that undocumented immigrants are employees under the National Labor Relations Act. I quote, "Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of employee." That's a quote from the case.

KAVANAUGH: But that's Part 2A. You've got to go to Part 2B.

DURBIN: Well, let me -- hang on. Let me tell you some people who went to both parts, and couldn't disagree with you more. Everyone else who looked at this question -- the administrative law judge, the National Labor Relations Board, including Republican appointees, two appeals court judges, including one Republican appointee followed the Supreme Court precedent and came to the opposite conclusion that you did.

I understand you may have preferred the Sure-Tan dissent, but you failed to follow Supreme Court precedent. This was a case where the National Labor Relations Act included those who were undocumented who could unionize to protect themselves in the workplace.

You went out of your way to dissent all the way along and make sure they didn't -- or in your view, not have that right -- that they did not have that right to unionize.


KAVANAUGH: I very respectfully disagree, Senator, and the reason I disagree is that the Supreme Court did say that the immigrant was covered under the definition of NLRA. If it ends there, I'm with you 100 percent.

But then the Supreme Court goes on to say -- and we consider also in resolving this question the conflict between the National Labor Relations Act and the immigration laws and makes clear, as I read it, if the immigration laws had made employment of someone here in the country unlawfully illegal, then that would be prohibited in the case.

And I went back, like I said. If you look at justice -- I mean, I quote the oral augment transcript from Sure-Tan in my dissenting opinion, I -- and look, I have no -- I have no agenda in any direction. I'm the -- I'm a judge. So I'm just trying to resolve the precedence...


DURBIN: Let me just close -- let me close by saying this. I'm just a judge. I just follow precedent. Gosh, we've heard that so often, and I hope it's the case, but we know that there's much more to the -- to your job to that.


DURBIN: That fact that you were a dissenter and everyone else saw this the other way should give us pause when you say, "I'm just following precedent."

KAVANAUGH: Well, I respectfully -- Senator, that opinion, I'm -- I'm proud of that opinion because I think it carefully details the law in that case I'm -- of following the Supreme Court precedent. And to your point that other judges disagree, I'll just -- there was a case I had about 10 years ago or eight years ago called Papagno. It was a case where I ruled in favor of a criminal defendant on a restitution matter.

Every other court beforehand disagreed. I wrote the majority opinion with Judge Edwards and Judge Griffith. Every other court after us disagreed. Finally we got to the Supreme Court this year on the Lagos case, and it was -- they agreed with our one opinions, the Papagno opinion.

Just to point out that just because other courts of appeals might have disagreed does not necessarily mean we were necessarily wrong because the Supreme Court ultimately decides that.

I understand your question; I appreciate them. Thank you.

GRASSLEY: Senator Cornyn and I've -- Senator Leahy's going to chair while I have another appointment. Senator?

CORNYN: Thank you, Mr. Chairman. Mr. Chairman, I was grateful that today's hearing, at least in (ph) far as the Committee's concerned is a lot more dignified and civil, and -- but unfortunately some of the hijinks continue even on the Senate floor.

I know Senator McConnell asked consent for the Judiciary Committee to continue meeting during today's session of the Senate. Senator Schumer objected, so Senator McConnell was left with no option but to adjourn the Senate and allow the Committee to continue to meet. That's unfortunate. So, Judge, I believe we met in the year 2000.


CORNYN: And just to take a little walk down memory lane here, when I was Attorney General of Texas and had a chance to argue a case in front of the Supreme Court of the United States, you, Ted Olson, and Paul Clement I believe...


CORNYN: ... helped -- helped me get ready. I regret you didn't have better material to work with, but...

KAVANAUGH: It was an honor, Senator. It was an honor.

CORNYN: It was a great experience and an educational experience, but I got to appreciate your skills as a lawyer from that time and have followed your career closely since, and I'm proud to support your nomination based on my personal knowledge of your skills, your temperament, your character, and your fidelity to the rule of law.

But I do want to pick one bone with you. I did this -- this isn't unique to you -- based on that experience. That case, as you may recall, involved a tradition in the Santa Fe independent school district, unfortunately was the site of a shooting here in more recent days, but back then the practice before football games was that the students would be able to volunteer to offer a prayer before the football game.

They weren't required to do so. The school didn't pick them. They could offer an inspirational saying or read a poem or anything else, but that was the practice. Well, until the ACLU filed suit and unfortunately it was held to be unconstitutional in violation of the establishment clause.

I'm not going to ask for you opinions because this issue will likely come back before the court, but since I mentioned it to Judge Gorsuch -- Justice Gorsuch, I'm going to mention it to you.

The thing that is stuck in my craw for the last 18 years is the dissent written by Chief Justice Rehnquist, which takes exception to the majority's decision saying they distorted existing precedent, but he goes on to say even more disturbing than its holding is the tone of the court's opinion.


It bristles with hostility to all things religious in public life. Neither the holding nor the tone nor the opinion is faithful to the meaning of the establishment clause. When it is recalled that George Washington's -- that George Washington himself at the request of the very Congress which passed the Bill of Rights proclaimed a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many and signal favors of the almighty God.

Since I had you here, I thought I'd mentioned that.


CORNYN: I'm not asking for your opinion since likely you'll be called upon to decide cases involving the establishment clause in the future. But since we had that history together...


CORNYN: ... I thought I would just tell you that still sticks in my craw ...

KAVANAUGH: I -- I understand -- I understand, Senator. We remember, certainly, cases I lost. I -- I remember and they still stick in my craw, too, Senator, so.

CORNYN: Well, I just marvel that under the First Amendment that we can -- a variety of voices can speak, and that's generally a good thing, but it can be about violence, sexism, it can be about almost anything, but you can't speak about religion in public -- in a public forum.

KAVANAUGH: Well, there've been -- you know, there have been cases from the Supreme Court I think in more recent years, cases like the Good News Club case, cases like the Trinity Lutheran case, cases like the Town of Greece case where I think the Supreme Court has recognized the importance, of course, of religious liberty in the United States and also has recognized, I think, that religious speakers, religious people, religious speech is entitled to a space in the public square and not to be discriminated against.

I think the Trinity Lutheran case is an important one on that. The Good News Club case, that's a case where it was an after school program at a school -- a school gym I think or auditorium and the religious group was excluded, and the Supreme Court made clear, no, you can't just exclude the religious groups.

So I think there have been some developments since then in terms of religious equality and religious liberty that are important. Those cases are always difficult factually to -- but the principle -- principle you're espousing I do think is reflected in some more recent Supreme Court precedent.

CORNYN: Well I'll just conclude with this, as I understand the constitution requires the government to be neutral. And as Chief Justice Rehnquist I think in this case the government evidenced hostility to religious speech in the public square.

That's just one - one person's opinion, and again, I'm not asking you for any opinion with regard to a case that may come before the court.


CORNYN: Mr. Chairman, I hope that won't - time won't be subtracted from my 30 minutes.

GRASSLEY: It will not be. CORNYN: Thank you. So Judge Kavanaugh, I'm intrigued by a comment that

you made earlier about the role of precedent. We've heard a lot about precedent, you alluded to this book that you and others - other judges wrote with Brian Garner on the law of judicial president - precedent.

I checked it out, it's 900 pages long.


And I haven't read every page of it either.

KAVANAUGH: I don't think it's meant - it's not meant to be read word for word. It's a treatise where you go to a section that might be on point or something.

CORNYN: But let me just ask you a more question, then we can work our way into that. Should - when a - when people go to court, should they expect a different outcome if the judge was nominated by a Republican from a court where the judge was nominated by a Democrat?

KAVANAUGH: No, that's an important principle of the judicial independence and the judicial role. But the judge's umpire vision that Chief Justice Roberts articulated and I've - I've talked about publicly many times is critical, when you go to a baseball game, the umpire's not wearing the uniform of one team or another, and that's a critical principle.

CORNYN: Well it - it strikes me as an important point given the suggestion that one of the reasons people have objected to your nomination is I believe the quote was you have Republican blood flowing in your veins, strikes me as a strange and bizarre statement.

KAVANAUGH: I've been a judge for 12 years, Senator, and 307 opinions, I'm very proud of that record and been an independent judge for 12 years. You're not a - as a judge, you're not a Republican or a Democrat --