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Kavanaugh Supreme Court Confirmation Hearing. Aired 10-10:30a ET

Aired September 6, 2018 - 10:00   ET



SEN. RICHARD BLUMENTHAL, D-CT.: -- but also to deny the fairness and effectiveness of the process; that's the reason that we're making this protest, and we are here under protest. That's the reason why I asked to adjourn so that we could consider fairly all of these documents.

I appreciate that Senator Grassley has decided to release the documents that I would have used yesterday. He's released the documents that Senator Booker commendably would have released, even if not reclassified or redesignated. But I want to reserve the right, I hereby reserve the right to release documents before any confirmation vote so that my colleagues can see what the truth is.

We are literally trying to get at the truth here. And between now and any vote on confirmation, there is the right, in my view, on the part of every member of this committee to release documents that she or he believes are appropriate. And to delegate this decision to an unappointed, and unconfirmed, and largely unknown figure -- Bill Burke, who used to work for the nominee -- is the height of irresponsibility.

Thank you.

SEN. MIKE LEE, R-UT.: I want to start by pointing out that when this part of the discussion started last night, I was concerned that, as with any witness in any courtroom or any proceeding before this committee, I want to make sure that when a witness is questioned about a particular document, the witness has access to that document.

It's not fair to the witness, a witness who has over the course of his career been involved in the creation, the authorship, the review of not just hundreds of thousands but many millions of documents in his lifetime. It's not fair to this witness or any other witness, in any other proceeding, anywhere, to not give the witness a copy and allow him to respond to it while he's being questioned about it.

So that's why I offered to -- to Senator Booker, and Senator Booker and I had a -- a helpful conversation with the very helpful committee staff last night, and they've agreed in the meantime to release this same document that was now the subject of it. So the process worked. It -- it works. We do have the ability to make these things available, to make them public so that we can be fair to Senator Booker. We can be fair to the witness, to the nominee. I do want to point out, since the -- the -- the charge has been made that this process is somehow rigged, that it's charged (ph), that it's unfair, that it's arbitrary and that it's capricious; I completely disagree. We are not dealing in a lawless environment here. We're dealing here with the Presidential Records Act. We've got documents that are the subject of privileges, privileges that -- that -- that have to be asserted.

Now, Bill Burke is the designee for that presidential administration and has the prerogative of asserting privileges. But through an accommodation with the Senate -- with the Senate Judiciary Committee to allow us to gain access to other documents to which we would never otherwise be able to have access, they -- they have agreed to hand those over with the understanding that we have this committee confidential process and that there are means by which we can clear documents like this one that we would otherwise not be able to clear.

It worked here, it's been cleared, and I think we should move forward. Thank you.


SEN. CHUCK GRASSLEY, R-IA: Senator Durbin or Senator Feinstein, whichever one wants to -- to go first.

SEN. DICK DURBIN, D-IL: I -- no, I defer to Senator Feinstein.

FEINSTEIN: Well, I will accept it. Thank you.

It's my understanding that by agreement with private lawyer Bill Burke, the chairman has designated 190,000 pages of Kavanaugh's records committee confidential. And by doing this, Republicans argue members can't use these documents at the hearing or release them to the public. Unlike the Intelligence Committee, and I've been a member for about two decades, the Judiciary Committee doesn't have any standing rules on how and when documents are designated committee confidential.

Previously, the Judiciary Committee has made material confidential only through bipartisan agreement. That has not been done in this case. So this is without precedent.

Republicans claim that Chairman Leahy accepted documents on a committee confidential basis during the Kagan administration. It's my understanding that those documents were processed through the National Archives, not private partisan lawyers, and Republicans agreed. Ninety-nine percent of Elena Kagan's White House records were publicly available and could be used freely by any member.


By contrast, the committee has only seven percent of Brett Kavanaugh's White House records, and only four percent of those are available to the public. No Senate or committee rule grants the chairman unilateral authority to designate documents committee confidential. So I have no idea how that stamp committee confidential got on these documents. I sent a letter on August 10th, 2018 objecting to the blanket designation of documents as committee confidential. I offered to work with the chair; he refused. Judiciary Democrats sent the chairman a letter on August 28th, restating the objection to the chair's designation of the documents as committee confidential and requesting public release.

As I've looked at the documents that are committee confidential, they do not affect any of the usual standards that would deny committee confidentiality. And Mr. Chairman, I think that's a problem. I think we're entitled to all records and I think the public is entitled to all records that are appropriate and do not put forward personal information or information that otherwise should not be disclosed.

So I do think we have a problem and I think for the future we ought to settle that problem with some kind of a written agreement between the two sides. Whether that's an agreement between the two sides of the entire committee, or between the chairman and the ranking member I think it doesn't matter much. But I think the fact is that we should agree on who determines something is committee confidential, what the criteria are for, and the release to the public, and particularly in the event of a Supreme Court hearing.

GRASSLEY: Senator -- Senator Durbin?

DURBIN: Thank you, Mr. Chairman.

And like my colleague Senator Whitehouse, I don't want my silence to be interpreted as consent to the process that we face before this Senate Judiciary Committee. It is unlike any process I have ever seen.

This designation of committee confidential should be put in historic context.

There will be an opportunity for us later this afternoon to meet in confidential and secret private session to discuss this nominee. That is not unusual. It is done for virtually every nominee. Some of the meetings literally last a matter of a minute or two and we say, "There's nothing to talk about and we're leaving." But it's happened in the past.

But whenever we dealt with committee confidential it was something that was very specific and usually very personal to a nominee. And it was done by bipartisan agreement that we would protect the nominee from assertions or comments that may not have any truth to them whatsoever, but the committee should take into consideration.

That is a far cry from what we have faced with this nominee. I cannot understand -- and I said this in my opening statement here -- the authority that we have given to a man named Bill Burke, a former assistant to the nominee. That we have said to Mr. Burke, "You -- you will decide what America gets to see about Brett Kavanaugh. You will make the decision as to which documents we will be allowed to discuss openly and publicly and which documents we cannot."

Who is this man? By what authority could he possibly be denying to the American people information about a man who's seeking a lifetime appointment to the highest court in the land?

The National Archives is usually the starting point of this process. I put in the record yesterday a statement from the National Archives disavowing this whole process, saying, "This is not the way we've done this in the past. We usually initiate this. Please give us a few weeks to do it in an orderly way."

But the decision was made by the White House and the administration not to go down that path, not to take the same course we have on previous nominees, but instead to allow to this gentleman, Bill Burke, a private attorney, the authority to decide what the American people can see about the background of Brett Kavanaugh in other capacities.

Who is Bill Burke? All that I know of him is that he was once an assistant to the nominee. I am told that he is not only the attorney for George W. Bush, but also for the White House counsel, Mr. McGahn; Mr. Priebus, the former chief of staff to the president of the United States; and Steve Bannon, a man whom I couldn't characterize in a few words. But he's his personal attorney.


And in this situation, he is now the litmus test. He's the filter to decide what the American people will see about this nominee. And that's why we bring this issue before you.

Lest you think we are carping on a trifle here, we are talking about whether the American people have the right to know.

And we now know that less than 10 percent of the documents reflecting the public career of Mr. Kavanaugh have been made available to this committee.

And I just want to say to my colleagues, particularly my colleague from New Jersey, I completely agree with you. I concur with what you are doing and let's jump into this pit together. And I hope my other colleagues will join me.

So if there's going to be some retribution against the senator from New Jersey, count me in. I want to be part of this process.

I want to understand how Bill Burke, this private attorney, has the right to say, as one of my colleagues mentioned, "This should be considered a classified document; a top secret document, a document that relates to the national security of the United States." By what right, by what authority can Mr. Burke possibly designate a document as committee confidential?

He has no authority to do that. He only has authority because he has the consent and the cooperation of the Republican majority on this committee. That is the only thing that brings us to this moment.

And let me just say in closing, one last thing.

I am sorry that one of my colleagues has characterized all of us on the Democratic side on the first day of this hearing as contemptuous. I have never heard that said before in a full committee meeting, but it's been said.

And I'm particularly sorry that he singled out one of our colleagues on this side and accused him of conduct unbecoming a United States senator. I think statements like that are personal, they're disparaging, they question the motive of the colleague, something that we should do our very best to avoid in the United States Senate if we're ever going to restore the reputation of this body.

SEN. JOHN CORNYN, R-TX.: Mr. Chairman...

SEN. MAZIE HIRONO, D-HI.: Mr. Chairman?

CORNYN: ... may I make just a brief point?

Mr. Chairman, I'm looking at a Wall Street Journal article back during the Elena Kagan nomination. It says "Document production from Elena Kagan's years in the Clinton White House Counsel's Office was supervised by Bruce Lindsay, whose White House tenure overlapped with Ms. Kagan."

Bill Clinton designated Mr. Lindsay to supervise records from his presidency in cooperation with the National Archives and Records Administration under the Presidential Records Act. So President Bush, by choosing Mr. Burke, is doing exactly what President Clinton did in choosing Bruce Lindsay for that same purpose.

HIRONO: Mr. Chairman.


HIRONO: (inaudible) Count me in too.

Mr. Chairman, I too, referred to a so called committee confidential document deemed such by one Bill Burke, and we all know who he is at this point. And had the nominee asked me for a copy of that so-called committee confidential document, I would have been happy to release it to him or give it to him. I am releasing that document to the press and I would defy anyone reading this document to be able to conclude that this should be deemed confidential in any way, shape or form.

Thank you.


SEN. AMY KLOBUCHAR, D-MN.: Mr. Chairman, I now you've mentioned a number of times that I went through the process.

I do want to point out, however, that I was also on numerous letters asking for all these documents to be released, and that my colleagues have repeatedly asked for documents to be released.

And I go back to what happened on the first morning of this hearing, and that was that we pointed out that when there are 42,000 documents that are dumped on us in one night, there is absolutely no way people are going to be able to adequately review them. And as they review them, they're going to find documents that they want to be made public that they want to ask the nominee about.

So the whole point of this is because this hearing was ramrodded through and we were given say, maybe, the month it would take to look at these documents, well, we are we are.

So my remedy for this, in addition to making clear that I join my colleagues -- that we support what Senator Booker is doing here, is that you must somehow expedite the review of every single document and we must have some kind of rules in place to get them out.


I understand you'd want to take out Social Security numbers and things like that; that's normal. But we simply can't hide these documents from the American public. It is the highest court of the land.

And I look at -- I was looking back at -- everyone was citing people -- the founders of this country and I found a quote that really works here, by Madison. "A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy," that's what we're talking about here. By ramrodding this through for political reasons, by (ph) denying us the access to the documents, we're denying the public the right to see what's out there. And it's just not how we do things in my state and it's not how we've done things in this committee.

SEN. CHRIS COONS, D-DE. (?): Mr. Chairman?

GRASSLEY: I'm going to call on Senator Lee and then you. But before that, I -- a couple of things she just reminded me of in her comments.

Number one was to -- to take care of all the people that didn't act promptly like you did, Senator Klobuchar. That's why we extended it and gave the courtesy of doing whatever anybody else wants -- wants now. And those are -- can either be brought up now, those that you've got can be brought up right now to him. And the things that you -- that aren't clear that you want to bring up with the judge, you can bring up in the closed session today.

And the other thing is, when you talk about getting all the documents, I don't know who might work for members of this committee sometime -- want to be on the Supreme Court. And -- and, for instance, would you -- we -- we didn't ask for all the documents that Kagan had, and e- mails or whatever communications she would've had when she worked with Senator Kennedy. Would you -- would you want to be exposed to that sort of thing?

If -- if you want everything to be made public or all the e-mails that you have, whether -- I think they're protected for 50 years for United States senators. So you're talking about the public right to know, you want to give up your e-mails right now, make them public? I don't think you do. Senator Lee.

LEE: First of all, Mr. Chairman, I want to say I'm deeply sympathetic to the frustration people feel when they don't have access to documents they want. As a United States senator, I've faced this on a number of occasions.

There have been times when we've been called upon to vote on legislation -- literally at the midnight hour, sometimes much later than that -- that we haven't seen until moments before it was voted on.

There have been other times, and I kid you not, when -- when I've been asked to vote on a piece of legislation that has an annex to it. And I'm told that I can't see the annex to the legislation because it's classified, and it's classified in a way that I don't have access to because of a committee assignment that I do not have.

It's incredibly frustrating. In those circumstances we look for a demon. There are demons in those circumstances, they are too numerous to name here.

In this circumstance, there is a demon. But that demon is a law of our own creation; it's called the Presidential Records Act. That's the demon that you're after here. That is the only reason we've got this issue.

Now, the custodian of those documents holds and exercises a privilege on behalf of the Bush administration. These are documents we would otherwise not have access to because they are privileged.

Pursuant to an agreement with the Senate as an accommodation to the Senate, the custodian of those records has agreed -- notwithstanding the privileged nature of those documents -- to hand them over to us with an understanding that when there is a need that arises, with respect to one or more of those documents, to make them public. We can, as a committee, go through a process to do that. That is exactly what has happened. It's what has worked. And it's what has worked here today.

So if you're frustrated with the process then let's review the Presidential Records Act. But we're just doing what the law allows us here to do.

These documents are not ours, they belong to someone else. It -- it is not written into the Constitution. It's not written on stone tablets anywhere that we're entitled to documents that don't belong to us.

It's significant that William Howard Taft didn't release his presidential papers. It's significant the Robert Jackson, having served as attorney general, didn't release all of the papers he had as attorney general. Why? Well, I assume it had a lot to do with the fact that they didn't belong to us as a Senate.

If we want to be able to have a process not just with this administration but in every presidential administration, Democratic, Republican or any other stripe in the future, we need to respect the process and respect the privilege that is accorded to documents that do not belong to us. That's all we're asking. And the process is working, let's move forward.


[10:20:00] FEINSTEIN: On behalf of this side, I -- I would like to just say a couple of things. There is no process for the committee confidential. It used to be that both sides had to concur, the chair and the ranking member, but now this is -- this is just simply not the case.

To some extent with this kind of thing, committee confidential becomes a kind of a crock; and, it shouldn't. I think we need to sit down. I think we need to have a rule on how committee confidential is determined, on what it means and who makes that decision.

For all I know, some Republican staffer could've made the decision. And I -- I -- I just don't know. Documents appear; our side had nothing whatsoever to do with the designation of committee confidential. So it becomes a way, if there's no rule, for the majority to essentially put all information through a strainer. Should we let this go out and be public or should we not? And I don't think that's what this committee is about.

SEN. CORY BOOKER, D-NJ: Mr. Chairman?

GRASSLEY: Well, you know -- you know, in the absence of a majority of -- of a committee opposed, the Chairman acts on behalf of the committee. And Chairman Leahy accepted documents on a committee confidential basis during Justice Kagan's nomination. And there's no indication that the ranking member agreed to that at that particular time.

Senator Coons.

COONS: Thank you, Mr. Chairman. Just two quick points, if I could. First, the question has been raised, whose documents are these? These are the American people's documents.

The Presidential Records Act gives us a right to obtain them for a Supreme Court nomination after the review of the professionals at the National Archives. And Bill Burke is not a professional at the National Archives. The Archives have said that this is not their process.

Equally importantly, because some will now make dire predictions about the appropriateness of the release of any of these documents, Bill Burke himself in his letter to us of August 31 said, and I quote that, Presidential Records Act exemption one, which protects against the disclosure of classified information, did not apply to any documents our team reviewed.

I agree with Senator Booker; this confirmation is too important for us to conceal documents that may reveal the nominee's views and I think we shouldn't be proceeding under these grounds.

BOOKER: Mr. -- Mr. Chairman, may I be recognized, sir?

GRASSLEY: I hope you don't say the same thing again. BOOKER: Sir, I will not. And first of all, I will say -- I will say something that I haven't said which is that I appreciate the patience of Job that you're showing here.

And I just -- I want to -- also, want to say that the representations from Senator Kennedy and Senator Lee were right on point, right on (ph) correctly, stood strong last night, challenged me. But they -- they not only were collegial, but they looked to find a fair way to deal with this process and I want to express my appreciation.

I want to clarify something that I said before. There -- there is no Senate rule that accounts for this process period. This is not a Senate rule. I did not violate a Senate rule.


BOOKER: I will pause. I will pause.

There -- there is no Senate rule that -- that I violated because there's no Senate rule that accounts for this process. And I say to her -- to -- to a Chairman that I respect, that I believe has been fair and good to me -- I -- I will say that I did willingly violate the Chair's rule on the committee confidential process.

I take full responsibility for violating that, sir, and I violated because I -- I sincerely believe that the public deserves to know this nominee's record, in this particular case, his record on issues of race and the law.

And -- and I could not understand -- and I violated this rule knowingly, why -- why these issues should be withheld from the public. Now I appreciate the comments of my colleagues, this is about the closest I'll probably ever have in my life to an "I am Spartacus" moment.

My colleagues, numerous of them, said that they too accept the responsibility. There were very serious charges that were made against me by my colleague from Texas. I -- I don't know if they were political bluster or sincere feelings.

If what he said was sincere, there actually are Senate rules governing the behavior of Senators. If he feels that I, and now my fellow colleagues who are with me, have violated those rules, if he's not a tempest in a tea pot, but sincerely believes that, then bring the charges.

Go through the Senate process to take on somebody that you said is unbecoming to be a Senator. Let's go through that process because I think the public should understand that at a moment that somebody's up for a lifetime appointment that this issue -- does the public have a right to know?


This is not about the Presidential Records Act, this is not a violation of the Presidential Records Act, not a violation of Senate rules, sir. But if somebody's going to land those charges, I hope that they will follow through with me and Senator Durbin, Senator Coons, Senator Whitehouse, Senator -- Senator Hirono, Senator Blumenthal, now Senator Feinstein -- Feinstein.

I hope that they will bring charges against us, and I am ready to accept the full responsibility for what I have done, the consequences for what I have done and I stand by the public's right to have access to this document and know this nominee's views on issues that are so profoundly important, like race and the law, torture and other issues.

GRASSLEY: Thank you.

CORNYN: Mr. -- Mr. Chairman, may I -- may I -- may I read the Senate rule 295, the standing rules of the Senate for the benefit of all Senators?

Any Senator, officer or employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees and Office of the Senate shall be liable, if a Senator, to suffer expulsion from the body and if an officer or employee to dismissal from the service of the Senate and to punishment or contempt.

So I would -- I would correct the Senator's statement there is no rule. There is clearly a rule that applies.

BOOKER: If it applies to a rule (ph), bring the charges.

BLUMENTHAL: Mr. Chairman? All of us are ready to face that rule on the bogus designation of committee confidential. Just because there is a Senate rule doesn't mean it can be misapplied or misconstrued or misused.

And I think even the threat raised by one of my colleagues here is unfortunate, and that is a kind way of putting it, with all due respect. And I would just make one other point. We're dealing here with a lifetime appointment.

Nothing we do here is more serious than confirming a Justice on the United States Supreme Court. Let the American people appreciate that we are here in the most solemn responsibility we have under the Constitution. We need the full truth, just as this nominee has sworn to give it to us, we are entitled to it from our colleagues. And the question is what are they concealing by this procedure? What are they afraid the American people will see? What are they afraid we would be asking of this nominee if we had all of those documents that have been denied us in this sham and charade?

GRASSLEY: Senator Lee? And then, Senator Tillis.

LEE: To Senator Booker's point, the document you're talking about has now been approved through the committee processes. It's been made public, the process worked. And I pledge to work with each and every one of you if you -- if you've got a document as to which a privilege has been asserted such that it's not public yet, I'll work with you to try to make it public.

Let's do it. I -- I think we can do this, it's not that difficult, we have done it several times, at least three times now. We can do it more. The -- the privileged thing is real though, and this is not our privilege we're dealing with, this is the privilege that belongs to somebody else.

The privileged nature of documents has been around for a long time, since the early days of the republic. The -- the records, the notes of the Constitutional Convention were ordered sealed for 30 years after the Constitutional Convention that occurred in 1787.

I'm not sure of all the reasons why, but those who participated in it decided that that was going to be the rule, sealed 30 years. Those documents didn't belong to anyone else, they belonged to those who attended that convention and participated in it.

Now, there were at least two from that list -- Oliver Ellsworth and James Wilson, I believe, who were subsequently nominated to serve on the United States Supreme Court. No one demanded, to my knowledge, and no one could have gotten -- notwithstanding the -- the -- the 30-year seal agreement, the notes to the Constitutional Convention.

Even though those certainly would have been probative as to how those people might have served on the Supreme Court. Yet no one was accusing the United States Senate back then of being a rubber stamp for the Washington administration or anyone else.

In fact, in 1795 the United States Senate disapproved of at least one of President Washington's Supreme Court nominees. This was no rubber stamp, and that -- yet they respected the fact that they didn't own every document, that other people might own them.

We don't own these, and so we have to go through the process, a process ordained by a law that we passed and that only we have the power to change. Let's follow that law, we can follow the law and respect the process and respect the rights of each of our colleagues and the rights of the American people to review documents that might be relevant here, but --