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

Aired September 5, 2018 - 13:30   ET



CORNYN: -- 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 as a federal judge.

CORNYN: And you talked about - a little bit about the constitutional basis for a judge's obligation to apply existing precedent. Could you expand on that a little bit more, because I think most people are under the impression this is sort of a discretionary matter, and you can sort of cherry pick between what precedents you decide to follow and which ones you don't follow.

KAVANAUGH: Well there's been a debate sometimes about what are - what are the origins of precedent, why do you follow precedent? And as I see it, there are a number of reasons you would cite stability, predictability, impartiality, reliance interests, but all of those are not near policies in my view.

As I see it, the system of precedent comes from Article III itself. When Article III refers to the judicial power shall be vested in one Supreme Court and such inferior courts as Congress shall, from time to time, establish.

To my mind, the phrase judicial power, you think about what does that entail and you look at the meaning - the meaning at the time of judicial power and you look - one source of that is Federalist 78 and - and that in Federal 78, it's well explained that judges make decisions based on precedent.

And precedent therefore, as I read judicial power has constitutional origins in a constitutional basis in the text of the constitution.

CORNYN: And I think you've touched on this as well, judges unlike legislators don't run for election. You don't have a platform, vote for me, this is what I'll do if elected into office.

One of the most important elements of the - of limiting the important roll of judges, I think, under the constitution is that you're required to decide a case on a case by case basis, rather than issuing some sort of oracle saying henceforth, the law will be thus.

Assuming you could get eight other judges on the team of nine you talked about to agree with you. Could you talk about the importance of deciding cases on a case by case basis?

GRASSLEY: We'll add another 20 seconds.

CORNYN: Thank you.

KAVANAUGH: Absolutely, Senator. It's important to understand and I - I think Senator Graham alluded to this as well, as judges you don't just issue policies or issue opinions out of the blue.

You decide, as the Article III says, cases and controversies. And that means there's a process, litigants coming to the federal trial court and - for example and litigate against one another, and there's a process there, a trial or summary judgment motion, the district judge renders a decision and that comes up to the court of appeals in my case.

And there's briefing and oral argument, I like to say - there's a process, I like to say process protects you. It's one of my things I always like to keep in mind. You go through a process to help make good decisions, deliberative process.

And we have a process, judges are very focused on process and having that oral argument, having the briefing and then talking to your colleagues. I - you change your mind, you know, Senator, you've been a judge of course.

You change your mind sometimes based on the comments of colleagues. So that process is important. Then to your point about your deciding that case, you write an opinion, you're not trying to resolve every issue imaginable and the opinion, you're trying to resolve this case under the principles and precedents, the text of the law in question, the text to the statute in question and decide that case or controversy.

And that's how judges build up a system of precedent over time, by deciding one case at a time and not trying to do more than they can or more than they should.


CORNYN: And, Judge, don't you think that what you've described for us in deciding cases on a case by case basis has an important foundation in fairness to the litigants, the parties that come to your court? Because how would somebody feel if they know you've already announced in all cases that have to do with subject X, I've made up my mind, I don't care what the facts are.

Isn't that unfair to the litigants?

KAVANAUGH: It can be, Senator, at least where an overbroad ruling may resolve things that people who are effected by it may have thought well I didn't - I wasn't part of that case, why am I now effected in a particular way?

[13:35:00] I think one of the things I can say about how I've tried to write my opinions, the 300 opinions, is I'm always concerned about -


KAVANAUGH: I'm always concerned about unintended consequences, this is one of the reasons I go through so many drafts of my opinions and really work through them is even just a sloppy foot note or an ambiguous word and opinion, it's true when you're drafting laws here too, but -


KAVANAUGH: If you don't - you're concerned about unintended consequences, which is why it's so important to be clear in the opinions and to be exactly precise and not to decide too much.

PROTESTER: (OFF-MIKE) our choice (ph). Stop Kavanaugh. Our bodies, our choice. Stop Kavanaugh. Our bodies, our choice.

CORNYN: Judge, let me ask you to tell us a little bit about September 11, 2001. Where were you when you heard that the planes hit the World Trade Center in Washington D.C. and another plane hit the Pentagon here in Washington?

KAVANAUGH: Yes, I remember...

CORNYN: New York, I should say. Not in (ph) Washington.

KAVANAUGH: Yes, I was -- I was in the -- in the West Wing when the -- hit the second tower. I remember that up in the upstairs counsel's office with a couple other people in the counsel's office. And then we were ushered downstairs and then told to get out and run out because there was fear, as we later learned, about flight 93. I think it -- don't know whether it was headed to the Capitol or the White House or some other target, of course.

And the heroes of Flight 93 saved -- saved so many Americans. Sacrifice that of course we still all celebrate, in the sense of celebrating their lives and their heroism for saving all of us here in Washington. But ended up out in Lafayette Park with the rest the staff and bewildered.

It changed America, changed -- changed the world, changed the presidency, changed Congress, changed the courts, all the issues that came before -- was a new kind of war as President Bush described with an enemy that didn't wear uniforms and that would attack civilians and so new kinds of laws had to be considered and Congress had to work through that and President Bush had to focus so intently.

And as I've have said before, my remembrance is that on September 12, his basic mentality was this will not happen again. And having -- traveling with him from 2003 to 2006 everywhere as -- as staff secretary and seeing him up close, I still think every day I was with him during those years, every morning when he got up it was still September 12, 2001 -- this will not happen again.

And to see that focus -- of course he had to do all the other things of the presidency and all the other legislative and regulatory and ceremonial aspects -- but he was so focused on that. And I'm sure that's been true of the succeeding presidents as well because the threat -- the threat -- the threat still exists, of -- of course.

CORNYN: Well as we came to learn, Osama bin Laden and Al Qaeda was responsible for that attack and has now morphed into other -- other organizations like ISIS and the like.

But I want to ask you -- you had to then sit in judgment later on in a case.


CORNYN: The Hamdan case, which you've alluded to earlier, where the defendant was Osama bin Laden's personal bodyguard and driver. He was captured by U.S. forces in Afghanistan after 9/11 and detained in Guantanamo Bay. He subsequently went through a military tribunal and then that case was appealed to your court. And just correct me if I'm wrong but notwithstanding the experience you and everybody you cared about having been through this terrible travesty of 9/11, you ruled in favor of Osama bin Laden's bodyguard and driver, correct?

KAVANAUGH: That is correct. I wrote the majority opinion ...

CORNYN: How could you do that? How could you possibly do that?

KAVANAUGH: So, the rule of law applies to all who come before all the courts of the United States.

CORNYN: Even an enemy combatant?

KAVANAUGH: Equal -- equal justice under law. Everyone is entitled to ...

CORNYN: Even -- even a noncitizen?

[13:40:00] KAVANAUGH: Yes. Noncitizens who are tried in U.S. courts of course have the constitutional rights -- and so -- and really my model on that judicial model for thinking about something like that -- because I thought about what you're asking about -- Justice Jackson, of course, Robert Jackson who's been Franklin Roosevelt's attorney general, that he's in the (ph) Korematsu case, even though that was one of President Roosevelt's policies, Justice Jackson now -- the majority opinion now overruled -- but Justice Jackson dissented and ruled against the Roosevelt policy.

Justices Clark and Burton, two appointees of President Truman are the two deciding votes in Youngstown Steel. That's a 6-3 decision. Those two are the deciding votes, therefore. They both were -- were appointees of President Truman. They get to the -- and it's wartime against Korea -- they get to the Supreme Court, they're the deciding votes in the Youngstown Steel case, which was an extraordinary national moment, one of the great moments.

And so it's -- it's your conception of the role of a judge is -- it's about the law. That's distinct from policy and our judiciary depends on having people in it -- and we are fortunate to have a wonderful federal judiciary -- people in it who understand the difference between law and policy and are willing to apply principles of equal justice under law to anyone who comes before the court.

Even the most unpopular possible defendant is still entitled to due process and the rule of law and I've tried to ensure that as a judge.

CORNYN: Well, it's hard for me to imagine a more unpopular defendant than Osama bin Laden's driver and personal bodyguard. So I find the suggestion that somehow you are prejudiced against the small guy in favor the big guy or that you are picking and choosing who you're going to render judgment in favor of based on something other than the rule of law, I think this answers that question conclusively for me.

The fact that you could separate yourself from the emotional involvement you had, along with so many people you worked closely with the White House on September the 11th and you could then, as a judge, after you put on the black robe and take the oath of office, you could then render a judgment in favor of Osama bin Laden's bodyguard and driver because you apply the law equally to everybody that comes to your court.

Sometimes the -- I think -- well let me allude to something Senator Sasse I think was eloquently speaking about yesterday in terms of the separation of powers. Very important aspect of our constitutional system and one that I know you've dealt with often on the D.C. Circuit Court of Appeals. And that has to do with what -- what I've read some judges talk about, some constitutional scholars talk about a conversation between the branches.


CORNYN: in other words, when the D.C. Circuit Court or the Supreme Court decides a case, they finally decide that case but they don't finally decide what the policy is ...

KAVANAUGH: That's right.

CORNYN: ... for the United States or the American people. Correct?

KAVANAUGH: That's correct, Senator. And I think one of the important things that judges can do is adhere, of course, to the laws passed by Congress, but then in writing the opinion, make clear -- and I've done this before, and a lot of my colleagues do this -- is that, perhaps, the statute needs updating, but if it does that is the role of Congress to update the statute.

Or if there's a -- sometimes there'll be in a hole statute, or something that seems unintended in a statute, and to alert Congress to that. Chief Judge Katzmann of the Second Circuit who's a great judge I served with on the Judicial Branch Committee which is appointed by the Chief Justice.

And he has written a book about statutory interpretation, but he's also been a leader of a project to make sure that Congress is alerted of potential statutory issues that look like they might have been things that, perhaps, Congress would not have intended, or, at least, Congress would want brought to its attention so it could fix.


KAVANAUGH: And it's...


KAVANAUGH: And so, that...


KAVANAUGH: ...that project's been very successful. I think Chief Judge Katzmann's project -- and it's one -- even without that project, how you write your opinions, I think, is important. We don't update the statutes; you update the statutes. But it's good for us to write our opinions in a way that points out potential issues that Congress might want to be aware of.

[13:45:00] CORNYN: And that's part of the conversation between the...


CORNYN: ...two coequal branches of government?

KAVANAUGH: Absolutely. And I think that's an important dialogue to -- to have between Congress and the judiciary, and the back and forth is very important on that front.

And I think that's -- one thing I'm always thinking about in my opinions, you write the laws, but if the law looks like there's some -- some issues with it, some flaw or something that might be an unintended consequence, in the opinion you can identify it. And that can be something that Congress can turn its attention to sometimes because statutory -- I am well aware that statutory drafting is a very difficult process. That's something I think judges need to be, actually, more aware of is how difficult the legislative drafting process is.

Even if you're doing it as one person it would be difficult, but then, you're doing it as a collective body. And then, you're doing it with the House, and with the President involved. There are a lot of people in and it's hard to have, with all the compromises inherent in that -- hard to have crystal clarity on every possible topic.

So, as judges I think, number one, we have to recognize the process that you go through as legislators. That means adhere to the compromises that are made, the text as written, but also when we write our opinions, if there seems to be something that not working out it's -- it's not -- it's appropriate, I think, for judges to point that out in their opinions.

CORNYN: And, of course, even if it's a constitutional basis for your decision that could be changed by constitutional amendment, correct?

KAVANAUGH: Well, that's correct as well. The framers did not think the Constitution was perfect by any stretch. They knew it had imperfections. For starters, the original Constitution did not have the Bill of

Rights -- the first 10 amendments. So, there was a lot of discussion at the ratifying conventions about having a Bill of Rights. And that was quickly done in the first Congress in New York in 1789, of course, by the -- James Madison taking -- taking the lead on -- on that.

But so too, they did not think it was perfect. They have an amendment process that's specified in Article V of the Constitution. And that amendment process was intended to be used. And we've seen it used to correct structural issues -- the 12th Amendment on presidential elections; the 17th Amendment, of course, as you all know well on Senate elections; the 22nd Amendment which limited presidents to only two terms; the 25th Amendment which corrected some issues with respect to vice presidency.

And so too, of course the 13th, 14th, and 15th Amendments -- the most important amendments in -- in the Constitution in many respects because it brought the promise of racial equality that had been denied at the time of the original Constitution into the text of the Constitution.

So, the -- the -- the job of the people, which is the Congress and the state legislatures, is to amend the Constitution. It's not the job of judges to do that on our own. And, obviously, that's a basic divide of constitutional responsibility that is set forth right in the text of Article V of the Constitution.

CORNYN: I can't remember who said it -- I think Justice Jackson, perhaps -- who said the Supreme Court is always right -- is not final because it's always right. It's right because it's final, or words to that effect.


CORNYN: But I always thought, the more I got into that, the more I disagreed with that because it is a conversation between the branches. And if the American people believe that it's a constitutional matter, the way the Constitution is being interpreted, it's within our power as the American people to change our own Constitution by amendment.

There's provisions in the Constitution itself to do that. It's hard, and it should be hard, but ultimately the authority that we delegate to the government finds its origin in the consent of the governed. It's not something dictated to us from down on high from the marble palace, or somewhere like that here in Washington.


CORNYN: It is ultimately our government, our responsibility, our authority that provides legitimacy to the government itself. You agree with that?

KAVANAUGH: I agree, of course, with that, Senator. The people -- we the people form the Constitution of the United States and the sovereignty. The people are the ultimate authority. And you're right about Justice Jackson's line. I think it is a clever line, but ultimately I agree with you.

[13:50:00] I -- I've always had a little bit of a problem with that line because -- we're infallible because we're final -- no, the -- both parts of that are -- are wrong, in some sense because I never want to think of the court as infallible. And I also never want to think of it, necessarily, you know, in that -- in the way you're describing either because there is the -- the people always have an ability to correct through the amendment process.

Now, the amendment process is hard and hasn't been used as much in recent decades, but, of course, at the beginning of the country, the amendments were critical. And Dred Scott, of course, the awful example of just a horrific Supreme Court decision that is then corrected in part, at least on paper, in the 14th Amendment -- 13th, 14th Amendments.

And that's an important example, I think, of your -- probably the best example, frankly -- of the point you're making about the people being able to respond to a horrific decision of the -- of the Supreme Court.

CORNYN: Well, in fairness to Justice Jackson...


CORNYN: ...maybe he was thinking, as I originally thought, about the expression as being binding on lower court judges...


CORNYN: ...trial judges, appellate court judges, and the Supreme Court does have the final word in that food chain of the judiciary, but not in terms of the fundamental authority of the American people...

KAVANAUGH: I think...

CORNYN: decide what laws should govern them.

KAVANAUGH: I think that's probably right, Senator. I don't want to be -- Justice Jackson's one of our greatest justices -- to question anything is...

CORNYN: No doubt.

KAVANAUGH:, you know, whether it was Korematsu dissent, or Barnette, or Youngstown, or Morissette on mens rea, Justice Jackson wrote some of the greatest opinions, and the example of judicial independence as well, so. But on that one line, I -- I -- I take your point.

CORNYN: Let me just ask you one last question. We've talked a lot about the role of precedent. And Senator Feinstein talked about stare decisis and basically cases that it had (ph) been decided provide the precedent for future cases.

But in the -- on occasion, the Supreme Court has decided that its decisions were just wrong and chosen to overrule those previous decisions. I'm thinking of Plessy versus Ferguson, for example, which was a scar on our body politic that said that separate but equal educational facilities met the constitutional requirement of -- of -- of the 14th Amendment.

But can you talk about the extraordinary circumstances under which the Supreme Court would revisit a precedent?

KAVANAUGH: Well, Brown versus Board of Education, of course, overturned Plessy. And Plessy was wrong the day it was decided. It was inconsistent with text and meaning of the 14th Amendment which guaranteed equal protection.

And the Supreme Court in -- in the Strauder versus West Virginia case in 1880 jury selection case had said: what is this Amendment but that the law shall be the same for the black and the white. And the Supreme Court, unfortunately, backtracked from that clear principal in the Plessy decision, in a horrific decision which allowed separate but equal.

And then Brown versus Board corrected that in 1954, of course, corrected it on paper. It's still decades and we're still seeking to achieve racial equality. The long march for racial equality is not over.

But Brown versus Board, as I've said publicly many times before, the single greatest moment in Supreme Court history by -- in so many ways; the unanimity that Chief Justice Warren achieved which is a -- just a great moment; the fact that it lived up to the text of the Equal Protection Clause; the -- the fact that it understood the real world consequences of the segregation on the African American students who were segregated into other schools and stamped with a badge of inferiority.

That moment in Brown versus Board of Education is so critical to remember. And the opinion is so inspirational. I encourage everyone to -- it's a -- it's a relatively short opinion but it's very powerful, it's very focused on the text of the Equal Protection Clause and correcting that awful precedent of -- of Plessy versus Ferguson, a great example of leadership.

And -- and just the last point I'll mention on process, they -- they were -- it was -- they knew they were going to face popular backlash. They knew they were, but they still did it. So that shows independence and fortitude.

But they also had re-argument, which I think is a good -- they had argument originally and then decided there's a lot going on and maybe not everyone's seeing it the same way, the justices. And they had a re-argument, which I think is a good lesson on process protecting us, and keep working at it, and keep working at it. And see, you know, the team of nine that mentioned yesterday and I mentioned today, keep working at it as a team of nine.

[13:55:00] And -- and they came out unanimous. Chief Justice Warren, thankfully, led the court in that decision. That was -- that was a great moment, the greatest moment in Supreme Court history. CORNYN: Thank you, judge.

LEE: Thank you. I awarded two additional minutes to Senator Cornyn because he was interrupted, by my count (ph), five times during his testimony. Senator Whitehouse is next.

WHITEHOUSE: Thank you. Good afternoon, Judge Kavanaugh.

KAVANAUGH: Thank you, senator.

WHITEHOUSE: Are you good for another half-hour?

KAVANAUGH: I'm good.

WHITEHOUSE: All right, good. In my office, you told me that you could provide no assurance to me that -- that you'd uphold a statute requiring insurance companies to provide coverage for pre-existing medical conditions. Is that still true here in public?

KAVANAUGH: Well, I think, senator, it's important to understand the principal at play here. The principle's...

WHITEHOUSE: We've talked a lot about that. But is the statement you made, have I recited it accurately and is it still true today that you can give no assurance that you would uphold a statute?

KAVANAUGH: Well, senator, judges like to explain their -- their decisions.

WHITEHOUSE: Yes, but I get to ask the questions. Usually you get to ask the questions because you're the appellate judge. But today for a half an hour, I get to. So is it still true that you can give no assurance that you would uphold a statute requiring insurance companies to cover pre-existing medical conditions?

KAVANAUGH: So to -- to prepare for this moment, I went back and read...

WHITEHOUSE: I really would like you to be as careful with your time as you can, because I have a very limited amount of time with you. So the quicker you can get to the answer -- I -- it's -- it could be as simple as yes or no.

KAVANAUGH: But I can enhance your understanding of my answer if I explain it, I think.

WHITEHOUSE: I really just want your answer on the record. I think I'm pretty capable of understanding it on my own.

KAVANAUGH: But well, then everyone to understand my answer. So there's a -- there's nominee precedent of how justices and nominees in my position have answered in the past. I'll -- I'll be succinct, if I can. And all eight sitting justices of the...

WHITEHOUSE: I know, you've...

KAVANAUGH: ... Supreme Court...

WHITEHOUSE: ... actually said this in the hearing, so people who are listening and interested have actually already heard you say this.

KAVANAUGH: Well, I think it's really important. So I want to...

WHITEHOUSE: Say it again then.

KAVANAUGH: ... I -- I -- I want to underscore it. All eight sitting justices of the Supreme Court have made clear that it would be inconsistent with judicial independence, rooted in Article III, to provide answers on cases or issues that could come before us.

Justice Ginsburg, you know, hints, forecasts; Justice Kagan talking about precedent, no thumbs are up or down; and, I went back, Justice Thurgood Marshall was asked repeatedly in his hearing -- what do you think about Miranda, what do you think about Miranda, what do you think about Miranda?

WHITEHOUSE: Got it. Everybody else does it and your answer is still no.

KAVANAUGH: So the reason everyone else does it, though, is rooted in judicial independence and my respect for precedent. So it's a combination of my respect for precedent, nominee precedent and my respect for judicial independence. So I can't give assurances on a specific hypothetical...


KAVANAUGH: ... base (ph).

WHITEHOUSE: OK, let me on to another subject which is executive privilege. Executive privilege is a principle that is founded in the Constitution and the separation of powers, correct?

KAVANAUGH: The Supreme Court so ruled in the United States versus Richard Nixon case. So that was the first -- that -- the -- the key issue in United States...

WHITEHOUSE: That's all right. I just needed the answer to the question and you've answered it. The...

KAVANAUGH: ... OK. The source is important.

WHITEHOUSE: ... the -- as a privilege, it needs to be asserted, does it not? That's true of privileges generally?

KAVANAUGH: I don't know where you're -- where this is going. But the -- the -- the...

WHITEHOUSE: It's a pretty straightforward question. Don't privileges need to be asserted in order to apply?

KAVANAUGH: ... Well, privileges are recognized...

WHITEHOUSE: Once they're asserted.

KAVANAUGH: ... I think as a general proposition in -- say...

WHITEHOUSE: Fair enough.

KAVANAUGH: ... say ...

WHITEHOUSE: I'm only asking as a general proposition.

KAVANAUGH: ... Yes, in attorney-client privilege, you would assert the...

WHITEHOUSE: You have to assert it.

KAVANAUGH: ... attorney-client privilege. Yes.

WHITEHOUSE: And who asserts executive privilege?

KAVANAUGH: Ordinarily -- well, that's a -- that is a complicated question, senator, actually. That -- that...

WHITEHOUSE: Who does it come back to? Ultimately, who exerts executive privilege?

KAVANAUGH: ... So it depends what you're talking about, so what kind of executive branch document you're talking about it depends. In -- in my experience...

WHITEHOUSE: Ultimately, it's the president?

KAVANAUGH: ... There's not -- there's not as much precedent on that, there's some. The Supreme Court -- this was -- the Supreme Court in the United States versus Richard Nixon...

WHITEHOUSE: Isn't it fair to say that executive privilege belongs to the president of the United States, the Chief Executive?

KAVANAUGH: Yeah, it can also belong to the former president in the case of former presidential records; that's the one caveat I want to put on that...

WHITEHOUSE: OK. Fair caveat.

Is the assertion of executive privilege by the president subject to judicial review?

KAVANAUGH: Well, of -- of course, because United -- under the precedent, United States v. Richard Nixon said two things.


KAVANAUGH: It said one, the executive privilege is -