tv Supreme Court Nominee Brett Kavanaugh Confirmation Hearing - Day 2 CSPAN September 5, 2018 6:47pm-8:01pm EDT
have done three things immediately. i would have called judge tom griffith on our court, on the codes muof conduct committee. i would have called chief judge garland, chair of the executive committee. i would have called jim duff, head of the administrative office of the u.s. courts. if for any reason i was not satisfied with that, i would have called chief justice roberts directly and said -- >> you believe that all judges, including yourself, if you ever heard or -- any allegations about these kinds of behaviors, you would report it, go through whatever processes were set up by the courts -- >> i would do that -- >> to prevent this behavior and hold people accountable, and yet, you know, someone that you have been close to that you clerked -- and i did go through the various encounters, more than encounters that you had with judge kozinski and yet you heard nothing, saw nothing, and
obviously you did not say anything. so let me just mention that this is why the #metoo movement is so important because often in these kinds of situations where there are power issues involved, and certainly there are between judges and clerks, that often, you know, it's an environment where people see nothing, hear nothing, say anything. that's what we have to change. >> i agree with you, senator. i agree completely. there need to be better reporting mechanisms. women who are the victims of sexual harassment need to know who they can call, when they can call. they need to know first -- >> judge kavanaugh, perhaps if all of those situations or processes had been in place over the 30 years that judge kozinski was engaging in this kind of behavior, maybe he would have stopped, but he did not. i have one more question, judge kavanaugh. were you aware of the serious allegations of domestic violence against rob porter before you recommended him for staff secretary to donald trump?
>> there is a premise in there that i am not sure is accurate. >> the premise being that he engaged in domestic abuse? >> no, no. the recommendation premise. that aside, no, i was not aware of those allegations until that became public. when there was the news reports about them. >> let me turn to another set of questions that i have for you. in 1999, you joined robert bork in writing an amicus brief in supporting the herald who zh challenged the structure for hawaii affairs, working for the betterment of. you argue that hawaii could not limit those who voted for the office's trustee only native hawaiians. you made this argument in a legal brief and published an opinion piece in "the wall street journal" under your own name entitled, quote, are hawaiians indians? you wrote, the native hawaiian community was not indigenous because, after all, they came
from polynesia. it might interest you to know that hawaii is part of polynesia. so it's not that they came from polynesia. they were a part of polynesia. hawaii is partthey came from polynesia but they were part polynesia. why a is part of polynesia in. native hawaiians do not come from polynesia but they are a part of it. we are not entitled to constitutional protections given to indigenous americans because and i quote you, they don't have their own government. they don't have their own leaders. they don't have -- they don't live on reservations or they don't even live together in hawaii. let me tell you why each of these assertions are wrong but it is the basis on which you determine that the elections were unconstitutional. >> the supreme court agreed.>>
they did not agree based on the argument. let me go on. to say there is no system of law as an insult to society that evolved over centuries and before the creation of the united states. to say they don't have their own leaders in a historical sense betrays your ignorance of native hawaiians. for 1000 years prior to the discovery by captain cook you said they don't live on the reservations or in territorial enclaves or don't live together in hawaii. it is hard to know what to say to this. it sounds like you are saying that they have the right to be cheated out of their land or surrender their rights when they move outside of the artificial boundaries but it is not only factually wrong but also very offensive. it is hard
to believe that you spent any time researching the history of native hawaiians. i am going to refer to an email .>> may i respond? >> i wanted to get to my question.>> okay.>> you sent out an email in 2000 to impart, any programs targeting native hawaiians is subject to strict scrutiny and of questionable validity under the constitution. you sent this out after the decision was made by the supreme court when you read the email saying that all the programs she undergo -- should undergo strict scrutiny were you looking to write it as a basis? >> senator, first of all, i appreciate your perspective. in the brief i wrote the
supreme court agreed. in that decision, in the case, just so i am clear it was a state office that denied african- americans the ability to for that state office, latinas and other people were denied the ability to vote for the state office and the question was whether that was permissible under the constitution and the supreme court.>> i attended that hearing. i believe that one of the reasons they kept asking about her trying to figure out whether they constitute tribes is probably because of what you put in there. let me go on. you did not answer my question. whether or not you said that any program targeting native hawaiians as a group a object to strict scrutiny under the constitution pick where you
thinking about the decision which you continued to say or where you thinking about the decision when you made this view? >> that is an email 16 years ago. i don't recall what i was thinking about.>> it was right after the decision. 2002. let me ask you this. do you think they raises constitutional questions when congress, not the state, rice was a state action state. the 16th amendment. it had nothing to do with the voting rights. do you think they made the constitutional law to benefit native hawaiians pick >> i think congress has power with respect to an issue like that is substantial. i don't want to recommit to any particular program but i
understand the congress is substantial panel -- power with respect to declaring and recognizing tribes.>> do you believe that any of these kind of programs by congress should undergo strict scrutiny >> i would listen to arguments used -- from 16 years ago and i am working in the administration and the executive branch and putting forth the position there but if i were a judge i would listen to the argument that congress has substantial power with respect to the programs like this and i appreciate what you said about native hawaiians and specifically it was about an election to a state office.>> i am well aware of the pieces in which the supreme court made the decision. it is cited for the proposition that laws have benefited nation -- native hawaiians are
unconstitutional because they are race based. do you think he can be cited for that view knowing that it is a state action case? i know this. they are cited for the proposition that all native hawaiian programs enacted by congress can be challenged as unconstitutional. i am asking you if that is appropriate? i think congress has substantial power in this area that you are discussion -- discussing and i will want to hear more about how the supply and the arguments on both sides. i will keep an open mind and i appreciate your perspective.>> when the supreme court keeps an open mind, one would hope that the advocates would actually proffer fax to the court and that is not what you did when you filed to the court. i think we have a problem.
the view is that native hawaiians don't need the upper -- protections under the constitution and the argument raises a serious it -- question about the constitutionality of alaskan natives. i think they should be deeply troubled by your peers. in your article you did not mention one word about alaskan natives. it could be because there is no clause referenced to alaskan natives as there is for american indians. i want to want to another set of questions because i am running out of time. i wanted to follow-up on your discussion with senator and your conversation with senator durbin . you talk about the importance
and understand the feelings about abortion and you said you recognize the real word and you don't live in a bubble. i think when you talk about respect for president it is misleading. there is ways to say you are relying on precedents. still severely limiting a woman's right to make her only productive choices and that is exactly what you did. we all recognize that even as roe v wade is not overturned there will be many cases that will continue to become -- come before all of the courts that will probably be laws enacted by states that will limit a woman's right to choose. including things like parental consent, special consent or notification, limits aware abortions can be performed. both senators explained the facts so i won't go over that
but when the case reached you you took any opportunity you could to prevent that girl from getting an abortion pick you said you were relying on president but you want. he turned this into a parental consent case which it wasn't and he looked at the facts and roles against all common sense that keeping a young woman behind lock and key behind -- against her will -- finding her sponsors so she did not and you deemed these factual circumstances not an undue burden on her constitutional rights were and abortion pick let me read you a portion. the majority points out that states such as texas the minor will receive a bypass pick that is true but it is irrelevant to
the situation. the current situation was all about parental consent and the need to get a judicial bypass, which this young woman did. if there is anything that is irrelevant it is your argument that this was a parental consent case. then you went on to analyze the case on the basis of whether or not keeping her under lock and key is a thing that there be sponsors found for her which could have ended up being an unfeasible timeframe for her to get an abortion pick -- and the young woman got the judicial bypass. the fact that she did not have the parental consent is not an issue. irrelevant. this is very disturbing. is it any wonder that there is
a so many people that even if you are not sitting here the nominee will return roe v wade even if it is not overturned. there will be an issue that will put barriers and her -- before a woman's right to choose. i find that a rather unbelievable and you also mentioned, you did not join the dissent which basically says that any minor does not have a constitutional right to an abortion. the fact that you did not join the dissent, does that mean that undocumented persons do have a constitutional right to an abortion? >> i decided that case based on the president of the supreme court and the arguments that were presented in the case.
i make clear that i was following is clearly -- closely as i could. parental consent and spousal consent. the supreme court has upheld the laws.>> it requires a judicial's -- judicial waiver.>> parents were beating her up. how can you expect -- expect parental consent in a case like that? >> that would be a situation for the bypass. this was for the woman of a minor in a immigration facility by herself >> you already gotten the judicial bypass pick no issue of parental consent. you substituted a foster family for parental consent. that is not an issue. i do have a question. you mentioned several times you did not join the dissent. the crux of the dissent that there was no right for the
alien minor to have an abortion. did you join or not join that consent because you had d good -- disagree with that? in fact, minors do have a right to abortion in our country.>> as a general proposition, first of all, the government did not argue in that case that ellen's lack constitutional rights generally to obtain the abortion.>> probably they figured that is a decided issue but maybe you don't think so pick do you think that is an open question as to whether or not the alien minors or aliens have a right to the constitutional right to an abortion? persons in the united states have constitutional's -- constitutional rights. >> okay. >> i hope that is why you did
not join that consent -- dissent. i think you can learn a lot from a judge by looking at his dissent. judges go out of their way to voice their disagreement to show their views pick your the highs dissent rate amongst circuit judges. several studies that analyze your decision. the first study shows that compared to other circuit courts judges elevated to not only have the highest rate of dissents but the highest rate of partisan dissent. i think i have a chart on that. maybe not. there is a study and i ask to have the study be entered into the record. the second thing, i am on a roll here.
the second study by people for the american way shows that you consistently sided against workers and immigrants and only once in your dissent. i ask unanimous consent to have the people for the american way studied for the record -- entered for the record. in cases where there was disagreements among the judges you consistently sided against helping people who wanted to protect the clean air and water. i ask unanimous consent to have the public citizens study entered into the record as well.>> the fourth study found that you are and i quote a study, note judicial moderate, it is hard to find a federal judge more conservative then judge brett kavanaugh.
i have this entered into the record as well.>> why did you dissent on behalf of consumers, workers and please don't talk to me about all the times that you are with the majority where you joined the other majorities. >> i wrote for workers and environmental interest many times and in big cases and that involved clean air regulations in particular matter regulation. affirmative defense admissions. the california clean law over a feller -- fellow judge rick >> there is a pattern to your dissents. your pattern is that you do not favor regular people.>> one of my most important dissents was
in the united states versus a criminal case for a convicted drug distributor. the question was whether he was sentenced to a 30 year minimum permissibly and i join with the judge that i was in dissent because the requirement was omitted from the jury instructions and i wrote a very lengthy dissent. that is someone i one of my most important dissents of half of the criminal defendant.>> the thing about the pattern is that there are exceptions to the pattern. all of these studies, we are not talking about the exceptions but we are talking about the existence of a pattern. it bothers me. i would expect
the judge to follow the law. several times you said you are a , how did you describe yourself in terms of following the law? >> into printed and prolonged.>> prologue.>> another case i wrote the leading opinions on battered woman syndrome. over a dissent of another job where i reversed the conviction of a woman on the grounds that she -- >> i hate to interrupt you but 30 minutes goes by fast and there is always exceptions. you describe yourself as a pro law judge. someone who follows president and the law. the majority criticizes it you for not following the law or presidents.
congress is clear that you missed the language and ignored them. your colleagues actually took the time to criticize your dissent. in the 2008 case the majority said the dissent creates his own role. he said your dissent abandoned the text of the applicable laws altogether. in 2011 the majority held that washington could then automatic weapons. the entire appendix to explain how it was wrong. i ask unanimous consent to have a 10 page appendix entered into the record.>> without objection. >> in 2017, the majority sharply criticized your dissent. they said rather than engage
with the record much less adhere to the standards, the dissent offers a series of conclusions and mischaracterizes the court's opinion. they said that you applied the law as he wishes it were and not as it currently is. this does not sound like a pro law judge to me.>> if you could begin to wrap up please.>> when the colleagues go out, they were often pointing you are not following the law in the cases.>> i standby by record. i have been in the majority 95 % of the time. i have written opinions joined by colleagues of all stripes. there has been studies that have shown the filiation of the judges that joined me when there was a dissent.
i standby my record. i am proud of my record. i have explained thoroughly my decision in each case. i appreciate your perspective and understand the cases you have raised but my opinion speaks for itself and i am proud.>> thank you, mr. chairman.>> thank you very much, mr. chairman.>> you can relax for a short moment because i will take a few moments and introduced some documents for the record. first, mr. chairman, i would like to introduce the consent to enter from the san bernardino editorial board. stating that brett kavanaugh nomination might be the calm before the storm. the editorial board says that george capital -- brett kavanaugh is conventionally conservative and less likely than other judges to overturn landmark case law. in addition
to qualification, the judge brings a leadership of normality and traditional cohesion. secondly the san diego union tribune may be more independent than you expect. this goes forward to say that the editorial board is strongly inclined to support the nomination. they have supported both democrats and republicans in the past. the nominee has the requisite credentials and it appalls judge kavanaugh as straight out of supreme court central casting. put this document in the record.>> without objection.>> a document from the harvard black law students association.
this exhibits his commitment to diversity. he reached out to the harvard loss of the black law students to express his interest in organizing an event for the members. on the panel within was an african american judge on the ninth circuit court of appeals. the black law student association describe the event. judge kavanaugh explained that one of the priorities is to encourage more students of color to apply. several reports indicated that law students are underrepresented. during the event judge kavanaugh provided his insight and advice on how they should navigate the process. the judge graciously offered is time for the panel and also has continued to mentor numerous hartford students that he is taught or worked with and
numerous capacities picks judge and the prep letter. georgetown prep. the former classmates grew up with george cavanaugh -- judge kavanaugh. they know him as a man of high character and intellect before he became a judge and in high school he was the team captain and a multisport athlete. years lady -- later he remains the same approachable person they knew from class and activities. the letter goes on with shining accolades and i would like to put this into the record.>> the governor of wyoming set just sent a letter. he embodies the qualities we need. he will be an effective and fair member of the united states supreme court. i ask to submit this. >> thank you very much mr.
chairman and judge kavanaugh. i would like to turn to questions. before i get into the questions i had intended to ask i wanted to get into the discussion and go back and bring clarity to the discussion held earlier and some of the questioning with regard to the independent counsel versus the special counsel circumstances and statues we have had in the united states. my colleagues asked a lot about the old statutes. it is important to walk through the differences between the statutes that is no longer lawn the new special counsel regulations. i will mention three important differences i will ask you if you would like to give any clarity to the situation and issues raised earlier. the process for appointing a special counselor which is the current situation. the decision to appoint a special counsel in the choice
of whom to appoint is within the discretion of the attorney general. the independent counsel had to be selected by a panel of three circuit judges. second, the scope of the investigation. the scope of the current special counsel inquire is determined solely by the attorney general. the scope of the independent counsel jurisdiction when it was the law was boundless. no limits. third is the process for removing a special counsel. the attorney general can remove the special counsel for good cause. the independent counsel could only have been removed by a three-judge panel. those are important differences related to the conversation you had earlier. judge kavanaugh, with that clarification would you like to give anymore clarification to the discussion earlier? >> thank you and i appreciate the distinction which i think are accurate and it is important to understand as you
underscore the old statute that had many parts to it and that combined to make it a departure from the traditional special counsel system, all of which were part of the analysis the justice engaged in dissent and the congress looked at when it decided that the statue had been a mistake and overwhelmingly decided not to reauthorize in 1999. >> thank you. i felt like you did not get an opportunity to make that clarification and the record needed to be cleared.>> before we move on i want to state that the fundamental structural flaws with the old statute, senator called that law unchecked, unbridled, unrestrained and unaccountable. justice kagan called into question. i want the record to be
clarified in that context. >> thank you, senator. >> now, what i want to do during the rest of my questioning a number of different ways is to get into your judicial record. i will start with this by going back to what this began yesterday. an attack on the documentation that has been produced by you and others for your record. i will state again that there is no nominee for the supreme court who has ever been asked a more robust questionnaire by this committee then you. you provided i believe around 17,000 pages of documents in response to the questionnaire which was more than any other nominee has been asked. secondly you provided over 440,000 other documents or pages of documents that in and of itself is more than the entire
number of documents or pages provided by the last previous of five nominees to the supreme court. you also got a record, a judicial record which is acknowledged by senators constantly as the most important part of the documentation for a nominee to the supreme court. over 10,000 pages of your decisions. unfortunately we have not seen a lot of focus on that yet. the questioning your received in this hearing and i want to try to get into that. before i do, i want to note that everyone has heard this many times but i am not sure that the normal american really understands. you are a judge of the dc circuit. it has been said in this room a number of times that that is often called the second most powerful court in the nation.
if the circuit court, there is a number of circuit courts, what is different about the dc circuit court from the ninth circuit court in which -- what is different between all of the different courts in the dc circuit court? >> thank you, senator. all of the courts of appeals is important and they have important dockets and caseloads the judges on all of the courts do important work. the dc circuit does get more regulatory cases because we are the dc circuit and in the nations capital and the seat of government and more regulatory cases come. epa cases for example and nlrb cases, environmental protection agency. the national labor relation board and we will get more of those cases involving agencies of the government here in dc as a percentage of the docket then
you would get in other courts and that includes some of the separation of powers and controversies that traditionally arise in the national security cases. we have although guantanamo related cases in our court. we have cases related to government operations, government separation of powers , the agencies are the bigger percentage. i want to that the courts of appeals do important work and the judges have important dockets and different characters of each of the courts in terms of -- the fifth circuit has immigration law. the 11th circuit has a very important dockets. all of them have important dockets. dc has more separation of powers but i don't want to -- i have friends on the other
courts of appeals and i don't want to diminish the work they do because it is very important work. >> i appreciate your answer and those of us who live in the ninth circuit understand the power. the power of the ninth circuit court of appeals. we are very aware of the incredible power. the point being is that the dc circuit is distinctly different in that it gets a much higher level of caseload dealing with the operation of executive agencies and with operations of government. the kind of things that we have been talking about extensively. these types of issues and i think it is important for that to be brought out. >> thank you.>> with regard to the dc circuit in which you sit, you have spent how many years is a judge? >> at 12 years and three months .>> how many decisions? do you know the number of decisions?
>> i think i have handled well over 2000 cases. including all the cases counted up.>> how many were you the author of the opinion? >> i written the majority of opinions and published in 300 seven cases.>> what the pattern is with your decision making? i will note before i ask you that the current active judges on the dc circuit are made up of seven nominees from democrat presidents and four nominees from republican presidents. the current makeup of the active judges on the dc circuit is more democratic than republican in terms of who nominated them. i guess i will lead you a little bit with this question but in the 7000 cases that you had been involved in with this
group of judges, what percentage did you agree with? in other words, what percentage where you and the majority >> it has to be in the 90s i would believe.>> i heard it was 97. i believe that sounds correct. if there is a pattern here, it is that you are right there with the majority of your colleagues on the court on most cases.>> i don't mean just 51 but it is 97 if i remember. >> that sounds about right. i appreciate it. we are judges. we don't wear partisan labels as judges and i worked or try to work well under the law with all of my colleagues. >> those who want to try to create the impression that you are a liar, you have to use that last percent in which you are actually in the descent.
not a member of the partial majority but they have to go to that very small number of cases and then try to figure out a way to make it look like you have disagreement with norms in the judiciary. people start talking about patterns, the pattern is that you are working with your colleagues on that court any united way and there is a high- level of consensus in the rulings in which you participate. in terms of the decisions that you have written, the 307 decisions that you have written, how many of those do you recall were majority decisions? decisions for a majority? >> the vast majority of those are majority opinions. a small number would have been
dissenting opinions. dissents and concurrences.>> i don't know that you would have the just -- sisters -- statistics but i assume some number of cases were appealed to the supreme court. did the supreme court, the ones that you wrote, where they overturned regularly or where they sustained? do you know the numbers? >> 13 cases where the supreme court has agreed with the analysis where the decision i made either in a dissent or majority opinion for the dc circuit. >> how about the reversals? >> one case where there was a reversal. excuse me. 13-1.>> if you are looking at a pattern, it appears that you are in the mainstream of the american judiciary. with regard to the question of
how the supreme court has treated your cases, i recall that they actually adopted your line of reasoning in a number of cases. is that correct? >> that is correct, senator. i don't know if you have -- >> i don't have the number.>> of the 13, that is correct where they either cited or quoted or otherwise agreed with the reasoning or decision i made an aching current consent and i am happy to talk about them.>> let me ask you this. i was going to ask you is before i go into some of the cases that i am aware that you participated that are notable, are the any of the cases that you participated in as a judge
and particularly where you rate the opinion. -- wrote the opinion. i would like you to have an opportunity to talk about your record. is there some that you would like to discuss before i go on to some i have all my papers? >> i will let you ask if you.>> i will run out of time before i get too much.>> equal treatment of women. one of the cases you participated in is you -- the united states where you defended the rights and reversed the district court on grounds that a female prisoner was prejudiced. would you discuss that case? is back there is a criminal conviction of a woman for extortion and she claimed duress defense. she claimed she was a battered
woman . she was repeatedly beaten by her boyfriend pick the district court had ruled against the woman on the claim that she, her counsel was ineffective by not presented the defense. it came to our court and a very lengthy opinion explaining why it was the effective decision not to present the the defense. over dissent from another judge but i explained the point that the jurors needed to hear the evidence from the expert about the battered woman's defense because otherwise the jury may not believe the claims she was making because they might think , why didn't she walk away or why did she not do something else. the expert testimony would explain what happens when you are beaten repeatedly and would
explain that the jurors would not -- would benefit from having the expert understanding that sometimes you cannot walk away. that is the whole point when you are beaten repeatedly.>> i appreciate that. we reverse the conviction in the case. >> the aclu said the opinion was a sympathetic understanding of partner violence and the fx. i will skip over another case because we are running on on time. what about you reversed the complaint from african-american secretaries.>> that is a discrimination case where the -- as we analyzed the evidence was a finish -- sufficient to
raise a claim of race discrimination based on the treatment that arrive -- african american secretaries received and that was our case. >> thank you and i have pages on the issue but i have only 10 minutes left. i will shift to another issue. looking at the cases you have decided. race and diversity. let's talk about the case where an african-american employee was fired at fannie mae. he brought the employment discrimination claim saying the supervisor used a despicable slur and created a hostile work environment. he joined the opinion and you also wrote a separate concurrence. in your concurrence, you rate the severity of this racial slur , even a single use of the n
word by a supervisor is sufficient to create a hostile work environment. i could get one but i would rather give you a chance to describe the case.>> that case was a powerful case. the plaintiff argued a pro se in front of the court. it is unusual. the situation was that he was called the n word by his supervisor. the question was whether the single utterance of the n word constituted a racial -- the question was a single utterance of the word severe. i wrote a separate opinion to make clear it was. that no other word in the english language powerfully calls to mind the long and brutal struggle against racism. i have emphasized in many cases
and a long march for racial equality in the united states is not over. look back to some of the history of the country and the original sin of the constitution was the tolerance of slavery. the slave clause. the importation clause which allowed the slave trade from 1788 to 1880 -- 1808 which during the 20 year period, 200,000 slaves were imported into the united states. the history on paper. then of course, a century of backtracking from the promise of the 14th amendment. jim crow and racial discrimination leading up to brown versus what of education and the civil rights act and the voting rights act of 65. the most important ever enacted.
still work to be done after centuries of discrimination, racial oppression, racial discrimination and in this case, my mind was one case with one person are going one claim of one incident to me the most history -- history of the country was represented a racial discrimination and that one case and i try to capture that as best i could in the opinion i wrote.>> thank you, judge. let's move on. you joined an opinion holding that it was an adverse employment action. in that case, you were -- said that the court should establish a clear principle that all discriminatory transfers and
discriminatory denials of requested transfers are actionable under title vii. you went on to make it clear that denying the employees requested transfer because of the employee's race plainly constitution -- constitutes discrimination.>> if you are transferred laterally and kept the same pay and benefits, is that really a change? suppose the oral argument in the case where i said in the real world, a transfer, even if you get the same pay and benefits may affect your later job opportunities and career tract and to think that the transfers were violating the civil rights law was blinking reality and that is what i said in the opinion. the case law at that point
basically said some transfers can be actual and others cannot. i wrote that i don't see how all transfers are not unlawful under the civil rights act. >> i think it is important for america to know your attitude that is that strong. we went over the artists versus biernacki case when we were talking about the women's right issues. this is a group of african- american secretaries alleging discrimination. you ruled in their favor. >> i have a number of cases on this but i got a different question on race and diversity. i recall the black law students that i introduced the letter on previously but i also note here that your commitment to promoting civil rights goes
back to your days when you wrote one of your first pieces of literary which was titled participation and procedure is the minimum for the kentucky hearings. you can explain. essentially it was an article about this topic that you chose when you were in law school. why did you choose this topic in law school? >> because i was interested in trial procedure at that time but i was also a product of a city where, as i described yesterday, my mom teaching where race relations and discrimination where an issue that was of concern to me and i wrote after the 1986 opinion which prohibited race discrimination in jury
selection and i worried or wrote what is to perfect -- prevent backtracking from that decision from prosecutors who will be able to assert reasons but have the effect of excluding african-americans from the jury's. i wrote an article that was published explaining that we needed good procedures to detect subtle discriminations in the jury selection process to ensure that the kentucky decision was not evaded. the legacy of all white juries convicting african-american defendants is a painful part of our criminal justice legacy and one of the things i wanted to make sure is that that was not
circumvented procedurally.>> thank you. i want to commend you on this and as i said at the outset, this seems to me that an awful side of the lot of the time the hearing is spent creating criticisms of you in areas like women's right or race relations. in reality your record strong and deep. in terms of protecting women's rights and protecting those are in unfavored positions and protecting against racial discrimination and i hope that we can get a strong focus on your true record because whether it is these issues, whether it is the independent -- independent counsel issues for the balance of your decision-making and whether you are out of the judicial norms in terms of your approach to decisions that you have entered into as a circuit judge. the record, your record reveals the truth.
the attacks that have been made are absolutely unfounded and i just hope that we can a much deeper look at your true honest record as we move forward. i only have a minute and 12 seconds left but the most important issue to make is whether you will be an activists just just or whether you will follow the law as it is written. i know your answer is but i would like to hear you in the last minute to tell me again what kind of a judge, what kind of a justice will you be on the supreme court if you are confirmed? >> i appreciate that and your comments. the independent judge who follows the law, constitution as written, follow the statutes that you pass and congress passes as written. i will remember hamiltons admonition that the judiciary exercises
will not will the judgment. the rules of legal interpretation are rules of common sense. i will give it my all as i have tried to do for the last 12 years as a judge on the dc circuit.>> thank you very much. i commend you for that answer and your approach.>> thank you. we are scheduled to take a 30 minute break. if you need all of it just say so. >> if you do, i suggest -- i am not suggesting you should not take it.>> 25? >> 25. we will be back at 20 of eight. we will be back at five after. when we come back, the senator will begin. >> thank you, senator.
including remarks from john dean who was the white house counsel during watergate in the nixon administration. they adjourned early. according to the senate rules, after chuck schumer for the full senate to be able to stay in session when the committee hearing is underway. a reminder, if you missed any of the coverage, we are replaying each session of the hearing and primetime on c-span . we want to show you some testimony from earlier today. >> following up on the wise words of the senator yesterday on separation of powers, your record before the senate occludes -- includes more than thousands of pages of writing server the dozen years. we have
over 440,000 pages of emails and other records from your legal service. you have written extensively on the issue of the separation of power among the three branches and a key component of the separation of powers is if the independent judiciary. obviously everybody learns in eighth grade civics about judges interpreting law. did you sure he must continue to be the least political and least dangerous ranch. the judges sole job is to find and apply the law. evenly and fairly without regard to the president who dominated him. the senators who voted for him or the parties before him and the political consequences of his decision. judge, let's discuss judicial
independence from the -- executive branch. not even the president is above the law. some of my colleagues have criticized your authority suggesting wrongly, in my opinion that your views would not allow any meaningful check on the president, particularly this one. please tell us what judicial independence means to you including whether you have any trouble ruling against the president who appointed you and against the executive branch in any case before you. you talked about independence but apply it specifically to the ruling against the president of the executive branch generally.>> thank you, mr. chairman. to begin with, you are correct. no one is against the law in our system. the federal 16 hamilton makes clear all the way that branch
is designed by the framers of the constitution and was different from the monarchy. under our system of government, the executive branch is subject to the law, subject to the court system and that is an important part of the federal 69 and an important part of the constitutional structure. in general, we as judges are separate from the congress. we are not supposed to be influenced by political pressure from the executive or from the congress took we are independence and we make decisions make on law and not policy and not political pressure and not the identity of the parties no matter who you are in our system. no matter where you come from. no matter rich or poor you are. no matter your race, gender, no matter your station in life, no matter your position in government. it is all equal
justice under law. look at are examples in history. i always go back to the great moments in our history where the principles which sound abstract but were actually implemented. i go back to youngstown. you think about, it is decision with the supreme court ruling that president truman has violated the law. this is a time of war. a time of war where lots of americans were killed and the supreme court's are under pressure to defer to the presidents war effort and in the decision is interesting is justice clark and we don't usually talk about justice clark. he was appointed by president truman to the supreme court. what a moment of judicial independence to rule in that case you think about justice
jackson who had been working for president roosevelt. he stands up and says letting racism like this is like letting a loaded weapon light around. president roosevelt's decision. justice jackson justice jackson [ crowd protesting ] -- justice jackson's concurrence in youngstown would has become the law. category one, two, three, he writes the concurrence and why is that a moment of independence? he had worked in the executive branch and the roosevelt administration but he is a judge and sees it differently.
united states versus nixon. he writes the opinion. unanimous. moments of judicial independence. it is resisting public pressure , political pressure. it is treating everyone equally no matter where you are or what station. when i was a -- i became a judge i had a case called hom don versus united states. protes] the right of all persons to live in the country. if you are a man of integrity, you yourself should remove yourself. [ protesters ] [ protesters ]
>> in the in the case, one of bin laden's associates. you will never have a nominee -- should i proceed? >> this is coming out of my time but it is okay. let's have these people have their free speech. let's interrupt the 300 million people. this is your opportunity to speak to the united -- people. if it affects the other 300 million people and what they are from you is to bed. proceed.>> one of bin laden's associates involved before september 11. the worst attack ever on american soil. he is prosecuted before a military commission. the signature prosecution of the bush administration.
he comes to the circuit. i am on the panel. i write the opinion saying that his military commission prosecution is unconstitutional. it violates principles. you will never have a nominee that is ruled for more unpopular defendant. rilling for -- why did i do that in that case? why did i rule for someone who had been involved in the september 11th? the law compelled. we don't make decisions based on who people are with her policy preferences. we based decisions on the law. justice kennedy's example something i have tried to file -- follow. you are not a pro defense or pro plaintiff but i am a pro law
judge. i ruled for parties whether they have the law on their side. that is part of being the independent judge. ruling for the party no matter who they are. if you walk into my courtroom and you have a better legal argument, you will win. >> i wanted to talk to you this morning about the guns and go back to roe v wade if i might. my office wrote the assault weapons legislation in 1993. it was law from 1994 to 2004. it essentially prohibited the transfer, sale and manufacturer of assault weapons. it did not at the time effective possession. i happen to believe that it did work and that it was important and i have watched case after case and i think i mentioned
earlier school shootings which are just, i never thought this would happen in our country. someone would bring a semiautomatic assault weapon into a school and just mow down children and staff. i have been very interested in your thinking on assault weapons. you specifically argued that the d say -- dc assault weapon been was unconstitutional. you said the weapons were in common years and what did you base your conclusion that assault weapons are in common use and what evidence did you use to do that? >> thank you for the question. i understand your role on that issue and year-long leadership in that issue and i appreciate
that. i faced the decision where as in every other decision i had to follow the president. president of the supreme court. i don't get to pick and choose what precedents i get to follow. i follow them all. in the second amended -- amendment the supreme court and the decision had held there was an individual right to keep and bear arms and then and explaining what that meant and what exceptions would be allowed to that right, the justice and part three of the opinion went through, this does not mean that there is no gun regulation permissible nt part of the opinion. part 3 of the supreme court's opinion. where it preidentified a number of exceptions that would be
allowed. felon in possession laws, concealed carry, laws, possession, mentally ill, possession of guns in schools. possession in certain kinds of buildings. he preidentified that. as to the weapons, the way i understood what he said there and what was said in the mcdonald case later, was this dangerous and ununusual weapons could be prohibited. and what he referred to specifically is machine guns could be prohibited. so it's very important recognize that under the heller decision, machine guns can be prohibited. >> they were in the firearms act a long time ago. >> yes. >> they have been prohibited. >> yes, senator. and justice salia's opinion did not disturb that longstanding regulation. in fact specifically it reaffirmed that machine guns could be prohibited. the court in heller
upheld -- or struck down a dc ban on handguns. most of which are semiautomatic. >> let me interrupt you. i think we're on totally different wave lengths. i'm talking about your statement on common use. as common use being a justification. and assault weapons are not in common use. >> and justice scalia's opinion used that phrase, and i think the next sentence of the opinion talked about dangerous and unusual weapons. and the court in heller itself, the supreme court, struck down a dc ban on handguns. most handguns are semiautomatic. that's something that not everyone appreciates. and the question came before us, of semiautomatic rifles, and the question was can you distinguish