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Dem. Senators Plan to Release Confidential Kavanaugh Docs; Kavanaugh in 2003: "Not Sure All Legal Scholars Refer to Roe as Settled Law"; Kavanaugh asked about his Stance on Torture. Aired 10:30-11a ET

Aired September 6, 2018 - 10:30   ET



SEN. MIKE LEE (R), UTAH: -- 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 let's go through the appropriate process to do it.


SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, JUDICIARY COMMITTEE: I think I ought to be fair to the Republicans.

FEINSTEIN: I think you should, too.

GRASSLEY: Go ahead, Senator Tillis.

SEN. THOM TILLIS (R), NORTH CAROLINA: Thank you, Mr. Chairman. You know, Mr. Chairman, I took nearly 17 years to get my college degree. I went to five different institutions. I'm pretty sure none have been elevated to the Ivy League.

That's right. I don't ever plan on running for president in 2020 or any point in the future. I want to make one more comment and then one request. The comment as I hope everybody will record a transcript of what's going on right now. Senator Lee explains things, I think, in eloquent legal terms.

But let's talk about the consequences of making this an untrusted body to receive documents under the Presidential Records Act. You may rue the day that you do that because you will probably get fewer documents in the future.

Now what I would like to do is ask all of our members is perhaps we can actually demonstrate to the American people that we're prepared to expose our own records. I would like to suggest for the purposes of the SCOTUS nomination that all of us waive any right to the speech and debate clause and that we allow all of our e-mail records related to this SCOTUS nomination to be made public on an immediate basis. I'm for one ready to sign up for it now. I hope all my other members would do the same thing because In the interest of transparency, certainly it would make sense for every one of us, regardless of what we want to do in the future, to expose that information to the American people.

GRASSLEY: I will start with my questioning. By the way, we're going to have to protect -- so everybody gets an opportunity to look at the FBI and anything else you want to ask at 1:00 p.m. We're going to have to go into executive session and get that done before -- if the Senate does close down at 2:00 p.m. -- I mean, if they don't give us permission to meet after 2:00 p.m., we have to get that out of the way. So, we will do that at 1:00 p.m.

FEINSTEIN: May I just put a document in the record?


SEN. JOHN KENNEDY (R), LOUISIANA: Mr. Chairman, would you yield to a question about procedure?

GRASSLEY: I used the wrong word closed. We're talking about -- closed instead of executive session. So -

KENNEDY: Would you yield to a question about procedure, Mr. Chairman?

GRASSLEY: Go ahead.

KENNEDY: Would you explain to me why we're having to truncate the hearing today?

GRASSLEY: Well, I'm not sure we do have to truncate it. But just in case, well, it would be because the minority may object to the unanimous consent request the leader would make for this committee to continue to work while the Senate is in session.

KENNEDY: Let me sure I understand. Senator Schumer is saying that we have to shut down while the Senate is in session? Do we not generally waive that rule?

GRASSLEY: Yes. Generally, it is waived but if it's objected to, we can't meet. So, that means that we want to make sure that we get the executive -- or the closed session out of the way.

KENNEDY: May I ask why Senator Schumer is doing that?

GRASSLEY: I don't know.

KENNEDY: We have a nominee to the Supreme Court of the United States. We have all talked about transparency. What is his basis for doing that?

GRASSLEY: You will have to ask him. I don't know.

FEINSTEIN: If I may, I would just like to put a document in the record that the committee was told that President Trump has decided to withhold 102 pages of Kavanaugh's White House counsel records -



FEINSTEIN: 102,000. What did I say?


FEINSTEIN: Thank you. 102,000 pages of Kavanaugh's White House counsel records and asserted a new claim of constitutional privilege. And of course, that hasn't been done before. I'm told there's no such privilege. There's an executive privilege, which is outlined in the Presidential Records Act and requires the president to notify Congress and the archivist, which was not done here. There's a little bit more to it. But I just would like to put this in the record.

GRASSLEY: Without objection, that will be put in the record .

Senator - Judge Kavanaugh, we've heard a lot yesterday about your record of independence and impartiality.

[10:35:00] And you have done more than talk about your independence and impartiality. You have demonstrated judicial values of the bench. By my account, you ruled against executive branch agencies 23 times between May 2006, January 2009, of course, President Bush was nominated -- who nominated you to the bench was ahead of the executive branch. You had no problems ruling against the president who appointed you, if that's what the law required. And I have no doubt that you would do the same on the Supreme Court if that's what the law required.

You have demonstrated your impartiality. Some of my colleagues tried to depict you as hostile to the little guy and always willing to rule for the powerful. But your record shows that you rule for the party that has the law on their side. So that makes you out to be not a pro- plaintiff judge or pro-defendant judge, but to be a pro-law judge.

So, let me ask you about a few of your cases that I think demonstrate that you will vindicate the rights of those who are less powerful in our society. After all our aspirations as Americans is equal justice.

UNIDENTIFIED FEMALE: Americans will die without healthcare. Our judge should protect us. (INAUDIBLE) Shame, shame, shame, shame, shame.

GRASSLEY: So, I will ask you on each one of them, but so you know the three cases I'm thinking about is Rossello, Essex Insurance and United Food and Commercial Workers. So, in the first one, the case in which you ruled for the women wrongfully denied social security benefits. Tell us your approach to that case.

BRETT KAVANAUGH, SUPREME COURT NOMINEE: This case, Mr. Chairman, was a case in which the social security administration had denied benefits --

(CROSSTALK) UNIDENTIFIED MALE: (INAUDIBLE) Save Democracy. Save Democracy, say no to Kavanaugh (INAUDIBLE)

KAVANAUGH: It was a case where the social security administration had denied benefits to a woman who had a history of mental illness. They had done so because at one point in time she had been employed for a brief period of time with a family member. But it had been subsidized. And this was -- in my view the height of arbitrary agency decision making, the case had gone on for 15 years, was a hall of mirrors for the woman.

And we wrote an opinion -- I wrote an opinion reversing the denial of benefits for the woman and also making clear to the social security administration that any further delay would not be tolerated and that these kinds of delays in denying benefits to people with mental illness were unacceptable.

GRASSLEY: Let's go to the Essex Insurance Company.


GRASSLEY: Essex Insurance --

KAVANAUGH: In the Essex case, it was a case in -- of a child's family and an insurance company. And the child had been the victim of sexual abuse. And the - on three occasions and the insurance company was trying to give -- pay out simply $100,000 for the total number of -- for the abuse. And the insurance policy said $100,000 for each occurrence in essence. And we ruled that the insurance company had to pay $100,000 for each occurrence, each incident of the abuse. And therefore, total of $300,000. So in that case, we were ruled and wrote for a victim of abuse against an insurance company that was seeking to squeeze the benefits that were paid under a policy that was owed to the plaintiff in the case.

GRASSLEY: Then the last one would be United Food and Commercial Workers.

KAVANAUGH: That's a case, a union case against Walmart and the case came from the NLRB. The question was whether Walmart had engaged in unfair labor practices against a union, in that case. In that case we ruled for the union against Walmart in that case on the ground that the factual record supported the conclusion that the company had engaged in unfair labor practices and, therefore, violated the rights of the union members.

[10:40:07] GRASSLEY: Now to something that I believe I've discussed with every nominee to the Supreme Court probably for the last 15 years. It's not about a case or your approach to the law. It's something that Senator Kennedy talked to you about yesterday. It isn't a very popular subject with some of the current and former justices. I think I make Chief Justice Roberts uncomfortable when I raise the issue with him when I speak for a short period of time with the judicial conference.

And then, there was a former -- when Justice Souter was on Supreme Court, he made a famous quip about television cameras that they would have to roll over his dead body. I can respect that view. I just think it is plain wrong. I and many of my colleagues on this committee believe that allowing cameras in the federal courthouse would open the courts to the public and bring about a better understanding of the court and its work.

You may be aware of that for a number of years. I've sponsored a bill, the Sunshine in the Courtroom Act, which gives judges the discretion to allow media coverage of federal court proceedings. Would you keep an open mind on cameras in the courtroom, or if you have strongly held views on it, don't be afraid to tell me.

KAVANAUGH: Mr. Chairman, I appreciate your longstanding interest to the issue and transparency for the courts, of course. I will tell you what we have done on my court briefly and then tell you some general thoughts going forward if I were to be confirmed.

On our court, we have gone from audio release at some date late -- much later. Then we went to audio release same week. Then we went to audio release same day. And now we are allowing audio to go out live with the oral arguments. And that process has been one in which the judges have learned, experienced and become comfortable with the additional transparency that's become the same time audio over time. And that process has worked well on our court.

On the Supreme Court, I think the best approach for me is to listen to the views of people like yourself, Mr. Chairman, and others I know who are interested in that, to learn, if I were to be confirmed, from the experience there and to see what the experience there is like, to listen to the justices currently on the Supreme Court, as I've said, be part of a team of nine. I would want to learn from the other justices what they think about this because several of them, as you know well, Mr. Chairman. When they are in my seat, express support for the idea of cameras for oral arguments and then when they were there for a few years, switched their position after experiencing it. So, I want to talk to them why that position. And I said to Senator Kennedy last night too, I would want to think about the difference between oral argument and the actual announcements of the decisions. I think those are two distinct things. There hasn't been much --

POPPY HARLOW, CNN ANCHOR: All right. What you have seen out play out on Capitol Hill over the last hour is remarkable. It is unprecedented. It is history making. We're going to explain it all to you.

David Chalian, our political director is here. David Gergen, also Jeffrey Toobin is with me.

Let us walk through for people, gentlemen, what has just happened over the last hour. Because we have not seen it happened before in the Supreme Court confirmation hearings for Judge Kavanaugh. We just saw a sitting Senator, Democrat Cory Booker of New Jersey, say that he not only is willing to but is going to and is currently violating Senate rules by releasing documents that have been marked committee confidential to the public. We know they are about racial profiling. He says he will do that despite the fact that it may get him ousted from the Senate. Republican Senator John Cornyn read him the Senate rules. And all of his fellow Democrats on the Judiciary Committee joined in backing up Cory Booker on this. Let's listen to all of them for a moment.


SEN. CORY BOOKER (D), NEW JERSEY: Sir, I'm saying --

GRASSLEY: How long do you want?

BOOKER: I'm knowingly violating the rules. Senator Cornyn --

GRASSLEY: OK. How many times are you going to tell us that?

BOOKER: Sir, I'm saying right now, that I'm releasing committee confidential documents.


SEN. MAZIE HIRONO (D), HAWAII: I am releasing that document to the press. I would defy anyone reading this document to be able to conclude that this should be deemed confidential in any way, shape or form.

SEN. AMY KLOBUCHAR (D), MINNESOTA: I, in addition to making it 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.


[10:45:00] HARLOW: And it's huge, all of the other Democrats weighed in agreeing with him. David Chalian, to you, how big is this?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Well, it's a big deal. Let's sort of get at why this is happening, the Democrats on the committee, as you know, for days, weeks leading up to the nomination had been complaining about their ability to view all of Brett Kavanaugh's records, where specifically they have specifically targeted the time that Brett Kavanaugh was serving in the George W. Bush White House. What you have seen since the hearings began this week, Poppy is Democrats needing, knowing they don't necessarily have the votes to stop Brett Kavanaugh --


HARLOW: All right. David Chalian, I'm sorry to interrupt you. Dianne Feinstein is reading a very important e-mail from 2003 from Kavanaugh when he works in the Bush White House having to do with Roe versus Wade.

FEINSTEIN: If you could, do you believe it is correctly settled?

KAVANAUGH: So -- thank you, Senator Feinstein. In that draft letter, it was referring to the views of legal scholars. And I think my comment in the e-mail was that might be overstating the position of legal scholars. And so, it wasn't a technically accurate description in the letter of what legal scholars thought. At that time, I believe Chief Justice Rehnquist and Justice Scalia were still on the court at that time.

But the broader point was simply that I think it was overstating something about legal scholars. And I'm always concerned with accuracy. And I thought that was not quite accurate description of all legal scholars because it referred to all.

To your point - your broader point, Roe versus Wade is an important precedent in the Supreme Court. It's been reaffirmed many times. It was reaffirmed in Planned Parenthood versus Casey in 1992 when the court specifically considered whether to reaffirm or whether to overturn it. In that case, in great detail, the three justice's opinions of Justice Kennedy, Justice Souter and Justice O'Connor went through all the factors, they started to size these factors, analyzed those and decided to reaffirm Roe.

That makes Casey precedent on precedent. It has been relied on. Casey itself has been cited as authority in subsequent cases such as Glassberg and other cases. So that precedent on precedent is quite important as you think about the sizes in this context.

A similar analogy, the United States versus Dickerson case in 2000 where the court considered whether to overturn Miranda versus Arizona or to reaffirm it. And in that case, the court, through Chief Justice Rehnquist, specifically reaffirmed Miranda, despite the fact that Chief Justice Rehnquist had been a critic of Miranda in his early days and had written some opinions quite critical of it. It became that - so that Dickerson case is similarly precedent on precedent, which is important going forward as you think about the story the sizes and calculation for a case like Miranda. So, that's why both of those cases, Planned Parenthood versus Casey and Dickerson are cases where I would refer to them as precedent on precedent.

FEINSTEIN: So, you believe it's correctly settled? But is it correct law in your view?

KAVANAUGH: Senator, there's -- on that case or on Dickerson or on cases like Citizens United or Heller or United States versus Lopez, just the whole body of modern Supreme Court case law, I have to follow what the nominees who have been in this seat before have done.

FEINSTEIN: Judge, a yes or no will do.

KAVANAUGH: Well, just if I can briefly explain.

FEINSTEIN: Yes, you can.

KAVANAUGH: I will try to be brief. When you are in this seat, I'm not just sitting here for myself. I'm sitting here as a representative of the judiciary and the obligation to preserve the independence of the judiciary which I know you care deeply about.

And so, one of the things I have done is studied very carefully what nominees have done in the past, what I refer to as nominee precedent. Justice Ginsburg - but really all the justice have not given hints, or forecast, or preview. And Justice Kagan I think captured it well as she often does with -- in talking about questions like the one you are asking. You can't give thumbs up or thumbs down and maintain the independence of the judiciary. So I need to follow that nominee precedent here.

UNIDENTIFIED SENATOR: Mr. Chairman, can I ask that the e-mail at issue be made part of the record?

FEINSTEIN: Pardon me?

UNIDENTIFIED SENATOR: I would like to ask that the e-mail at issue be made part of the record.

[10:50:01] FEINSTEIN: Would be happy to do that. Thank you.

During your time in the Bush White House, the administration actively took steps to limit women's reproductive choices. This included re- imposing the global gag rule to prevent foreign organizations from spending their own money on reproductive health and trying to prevent the FDA from making Plan B contraception available over-the-counter. During your service at the White House, 2001 to 2006, did you work on any issues related to women's reproductive health or choice?

KAVANAUGH: President Bush was a pro-life president. And so, his policy was pro-life and those who worked for him, therefore, had to assist him, of course, in pursuing those policies, whether they were regulatory. There was partial birth legislation that was passed as well. And some of those things might have crossed my desk. I can't remember specifics. But he -- I think this came up when Justice Kagan - when she worked for President Clinton, he was a -- had a different view than President Bush on that issue. And she had some work for President Clinton. I consider myself working for President Bush was there to assist him.

FEINSTEIN: Let me go to torture. During the time you worked in the White House, the office of legal counsel concluded that harsh interrogation techniques were legal, even though Congress had passed a law in '94 banning torture. The Office of Legal Counsel took a sweeping view of presidential power and concluded that the president could override the statute. In response, in 2005, the Congress adopted an amendment championed by our colleague Senator McCain -- I was the co-sponsor that stated that only interrogation techniques that can be used are those authorized in the army field manual. Was the office of legal counsel correct when it concluded that the president could ignore the torture ban?

KAVANAUGH: The Office of Legal Counsel, Senator, subsequently withdrew those memos, as you know. And as I have made clear in some of my writings, the review of Judge David Baron's book, some of my opinions as well, the president does not have the authority to disregard statutes passed by Congress regulating the war effort, except in certain very narrowly described circumstances that are historically rooted, the common example being command of troops in battle.

So, as a general proposition, the president has to comply with the law. The president is subject to the law, including in the national security context. That is the lesson I think of the Youngstown Steel case of Justice Jackson's categories -- category three as I said repeatedly in my writings, which is where Congress has prohibited the president from doing something, is critically important. That's essential to the rule of law as Justice Jackson said. That's the equilibrium of the country is at stake in category three. And I have written about that quite frequently.

FEINSTEIN: Got it. Thank you. Today we have a president who said he could authorize worse than waterboarding. How would you feel about that?

KAVANAUGH: Senator, I'm not going to comment on -- and don't think I can sitting here on --

FEINSTEIN: Well, but you know what the law is. You made that clear.

KAVANAUGH: I know what the law is, Senator.

FEINSTEIN: I asked specifically, how do you feel about that?

KAVANAUGH: I feel that I should follow the law as a judge. I know what the law is. And I know your leadership on this issue both with the report you did, which was the thorough documentation of things that happened as well as recommendations for the future. I know your leadership with Senator McCain on the 2005 act as well. And I know what the law is. I have written about the -- how the separation of powers works when Congress passes laws of the kind that you have.

FEINSTEIN: One last question on this. In December of '05, President Bush issued a signing statement regarding the Detainee Treatment Act of 2005, reserving the president's right to disregard that the laws ban on torture - it disregard the laws on torture if it interfered with his constitutional authorities as president. What was your involvement, if any, with this signing statement?

[10:55:00] KAVANAUGH: While I was staff secretary, any issue that reached the president's desk with the exception of a few covert matters, would have crossed my desk on the way to the president's desk. I wouldn't have -- in the ordinary course -- provided the policy advice or the legal advice. It would have crossed my desk. So, in that case, the signing statement, the drafts of it, that process would have crossed my desk at some point.

FEINSTEIN: OK. In a 2013 panel discussion as - well, you did nothing about it though. It crossed your desk and that was that?

KAVANAUGH: Well, there was debate, as I think I mentioned, about that. The counsel to the president, Miss Myers at the time, was the ultimate adviser on that matter for the president and thus would have been the one who primarily dealt with that with the president. It was important in the job I had there not to supplant the policy or legal adviser. That was not my job. My job was to make sure the president had the benefit of the views of his policy and legal advisers.

FEINSTEIN: One more Bush era question on this. In a 2000 panel discussion at NYU Law School regarding Bush administration anti- terrorism policies, you said the Bush administration went, quote, "right up to that legal line to defend the security of the United States," end quote, implying that Bush policies did not cross the legal line. Do you mean to suggest that Bush administration post-911 programs, including the CIA torture program, were legal?

KAVANAUGH: No, Senator, that's not what I was suggesting there. Let me try to provide you an explanation. President Bush's view as I think he said publically was in trying to keep America safe, he was going to do everything he could within the law. He relied on his lawyers to provide him the boundaries of what the law is and then he would go up to that line as he thought effective as a matter of policy. It was up to the lawyers, therefore, to make sure that they were giving sound advice and not -- and having the backbone -- this is something that your legislation reinforces. Lawyers need to have backbone, even in pressurized moments to say no. I talked about that in times.

One of the most important responsibilities of an executive branch lawyer in the passions of the moment, where the pressure is on, where the president wants to do something perhaps, is to go into the Oval Office and say, no, you shouldn't do this. That's something that I have written about, talked about, and experienced in my time with President Bush. And I have encouraged young lawyers to have that backbone and for t fortitude to say no. That's about the most important thing.

FEINSTEIN: Thank you. A quick change of subject.

You sat on a case where a trainer, Dawn Brancheau was killed while interacting with a killer whale during a live performance. Following her death, the Occupational Safety and Health Administration found that Sea World had violated work force safety laws. The majority agreed with the agency that Sea World had violated the law.

According to what I know, you disagreed. In your dissent, you argue that the agency lacked the authority to regulate employers to protect participants in sporting events or entertainment shows. However, the statute as enacted applies to each employer and it defined employer as anyone engaged in business affecting commerce who has employees. Where in the text of the law did Congress exempt employers of animal trainers?

KAVANAUGH: Thank you for the question, Senator. The first point I want to make is that was not a case that involved potential compensation of the family. That was handled through the state tort system or through insurance or through a settlement with the -- Sea World and the family. So, the case before us had nothing to do with compensation of the family. It had to do with a separate regulation of Sea World.

The issue, Senator, was precedent. I follow as a judge, I follow precedent. The precedent of the Labor Department as I read it was that the Labor Department under that statute would not regulate what it called the intrinsic qualities of a sports or entertainment show. So lots of sports and entertainment shows have serious dangers, whether it's football or the balance beam in gymnastics or high wire act at the circus or the lion tamer show. And the Sea World show was, as I saw it, of a piece under those -- with that precedent that said the Labor Department would not regulate, for example, whether baseball helmets had to have ear flaps or whether to prohibit the punt return or to make the balance beam have nets.