WELCOME BACK, JUDGE KAVANAUGH. THE NEXT PERSON TO ASK QUESTIONS IS SENATOR DURBIN. >> THANK YOU, MR. CHAIRMAN. JUDGE KAVANAUGH, MRS. KAVANAUGH, THANK YOU FOR BEING BACK TODAY TO FACE THIS NEXT ROUND. IF I HAD TO PICK AN AREA OF CLEAR EXPERTISE WHEN IT COMES TO BRETT KAVANAUGH, IT WOULD BE THE AREA OF JUDICIAL NOMINATIONS. YOU HAVE BEEN ENGAGED IN THAT AT SEVERAL DIFFERENT LEVELS, INCLUDING YOUR OWN PERSONAL EXPERIENCE. AND SO I'D LIKE TO ASK YOU IF YOU WOULD COMMENT ON THE STRATEGY OF YOUR OWN NOMINATION. SPECIFICALLY, I WOULD LIKE TO ASK YOU WHETHER THOSE WHO WERE PLANNING THAT STRATEGY SAT DOWN AND CLEARED WITH YOU THEIR DECISION ON THE RELEASE OF DOCUMENTS. >> NO. I WAS NOT INVOLVED IN THE DOCUMENTS PROCESS OR SUBSTANCE. >> NO ONE TOLD YOU THAT YOU WOULD BE THE FIRST SUPREME COURT NOMINEE TO ASSERT EXECUTIVE PRIVILEGE TO LIMIT THE ACCESS TO 100,000 DOCUMENTS RELATING TO YOUR SERVICE IN THE WHITE HOUSE? >> SENATOR, THERE'S A COUPLE THINGS PACKED IN YOUR QUESTION. I DID STUDY THE NOMINEE PRECEDENT, READ ALL THE HEARINGS. THIS CAME UP IN JUSTICE SCALIA'S HEARING SO I READ THAT WITH ALL HIS MEMOS FROM BEING HEAD OF THE OFFICE OF LEGAL COUNSEL AND HE WAS ASKED ABOUT THAT. AND I KNOW WITH CHIEF JUSTICE ROBERTS THERE WERE FOUR YEARS OF INFORMATION WHEN HE WAS PRINCIPAL DEPUTY SOLICITOR GENERAL THAT THOSE WERE NOT DISCLOSED, EITHER. >> AS FOR WHITE HOUSE DOCUMENTS, YOU'RE BREAKING NEW GROUND HERE, OR I SHOULD SAY, COVERING UP OLD GROUND HERE? >> WELL, I GUESS I -- I GUESS -- AGAIN, I WASN'T INVOLVED IN THE DOCUMENTS DISCUSSION OR PROCESS OR SUBSTANCE IN TERMS OF THE DECISIONS THAT WERE MADE, BUT IN TERMS OF THINKING ABOUT THE ISSUE, IN TERMS OF QUESTIONS THAT COULD COME TO ME, LIKE JUSTICE SCALIA AND CHIEF JUSTICE ROBERTS RECEIVED, OR AT LEAST JUSTICE SCALIA DID, IT'S ALL WHITE HOUSE DOCUMENTS. >> BUT WHEN YOU REALIZE WHEN IT COMES TO THE ROLE OF NATIONAL ARCHIVES, WE'RE BEING ASKED TO GIVE YOU SPECIAL TREATMENT. >> I CAN'T COMMENT, BECAUSE I DON'T KNOW. >> JUDGE KAVANAUGH, THIS IS YOUR FIELD, JUDICIAL NOMINATIONS. THIS IS YOUR NOMINATION. >> LET ME ASK -- SORRY. >> YOU ARE NOW EMBARKING ON THIS JOURNEY IN THIS COMMITTEE, DENYING US ACCESS THE TO DOCUMENTS WHICH WERE ROUTINELY PROVIDED FOR OTHER JUDICIAL NOMINEES. YOU HAD TO HAVE KNOWN THAT WAS TAKING PLACE. >> SENATOR, I THINK WHAT JUSTICE SCALIA SAID WHEN HE WAS ASKED ABOUT HIS LEGAL MEMOS IS THE RIGHT THING, WHICH IS, THAT'S A DECISION FOR THE SENATE AND EXECUTIVE BRANCH TO WORK OUT. AS A NOMINEE, I WILL -- AND THERE ARE LONG-TERM PRIVILEGES AND PROTECTIONS, AS HE MENTIONED, THAT WERE INFECT FOR THAT DISCUSSION, AND IT'S NOT FOR THE NOMINEE TO MAKE THAT DECISION. >> WELL, THAT IS -- THAT'S AN INTERESTING COMMENT, BECAUSE THE WAY YOU'RE BEING PRESENTED TO THE AMERICAN PEOPLE, WITH ONLY 10% OF THE PUBLIC DOCUMENTATION THAT COULD BE PROVIDED TO THIS COMMITTEE IS GOING TO REFLECT ON YOU AND YOUR NOMINATION. AND OF COURSE YOU KNOW THAT. >> WELL, I GUESS I -- AGAIN, LOOKING AT THE NOMINEE PRECEDENT, SENATOR, THAT WAS TRUE IN JUSTICE SCALIA'S CASE. ALL HIS MEMOS FROM 1974 TO 1977, WHEN HE WAS HEAD OF THE OFFICE OF LEGAL COUNSEL, A CONSEQUENTIAL TIME, AT LEAST AS I UNDERSTAND IT, THOSE MIGHT NOT HAVE BEEN DISCLOSED. HE'S ASKED ABOUT THAT, CHIEF JUSTICE ROBERTS, FOUR YEARS OF DEPUTY SOLICITOR GENERAL MEMOS, WHICH WOULD HAVE BEEN -- >> SO YOU'RE PERFECTLY FINE WITH THIS NOTION? >> NO, I SAID -- I AM, UM, IT'S UP TO THE CHAIRMAN AND YOU AND THE COMMITTEE, THE SENATE, AND THE EXECUTIVE BRANCH -- >> IN FAIRNESS, JUDGE KAVANAUGH, I THINK IT'S UP TO YOU. I THINK IT'S UP TO YOU. IF YOU SAID AT THIS MOMENT, TO THIS CHAIRMAN AND TO THIS COMMITTEE, STOP, PAUSE, HIT THE PAUSE BUTTON. I DON'T WANT ANY CLOUD OR SHADOW OVER THIS NOMINATION. I TRUST THE AMERICAN PEOPLE, I WANT THEM TO TRUST ME. I AM PREPARED TO DISCLOSE THOSE PUBLIC DOCUMENTS, TAKE SENATOR LEAHY'S LINE OF QUESTIONING. HE WAS NOT THE ONLY VICTIM OF MANNY MIRANDA. I WAS, AS WELL. AND I DIDN'T REALIZE THIS REPUBLICAN STAFFER HAD HACKED INTO MY COMPUTER, STOLEN MY STAFF MEMOS, AND RELEASED THEM TO THE "WALL STREET JOURNAL" UNTIL THEY SHOWED UP IN AN EDITORIAL. SO NOW YOUR KNOWLEDGE OF THIS, YOUR ROLE IN THIS IS -- WE'RE LIMITED TO EVEN DISCUSS, BECAUSE OF THE FACT THAT WE ARE CLASSIFYING AND WITHHOLDING INFORMATION ABOUT YOUR NOMINATION. FIRST, A MR. BILL BURKE, WHO HAS SOME MAGIC POWER TO DECIDE WHAT THE AMERICAN PEOPLE WILL SEE ABOUT YOUR ROLE IN THE WHITE HOUSE. THEN THE DECISION BY THOSE WHO PUT YOUR NOMINATION BEFORE US TO TAKE 35 MONTHS OF YOUR SERVICE AS STAFF SECRETARY TO THE PRESIDENT OF THE UNITED STATES AND TO EXCLUDE THE DOCUMENTS. THEN, THE UNILATERAL CLASSIFICATION OF DOCUMENTS COMING TO THIS COMMITTEE, IS COMMITTEE CLASSIFIED IN A MATTER THAT NO ONE HAS EVER SEEN IN THE HISTORY OF THIS COMMITTEE. JUDGE KAVANAUGH, THAT REFLECTS ON YOUR REPRESENTATION AND YOUR CREDIBILITY. IF YOU SAID AT THIS MOMENT, I DON'T WANT TO HAVE A CLOUD OVER THIS NOMINATION, I'M PREPARED TO SUGGEST TO THE COMMITTEE AND ASK THE COMMITTEE, HUMBLY, PLEASE, WITHHOLD FURTHER HEARINGS UNTIL YOU DISCLOSE EVERYTHING. WHY WON'T YOU DO THAT? >> SENATOR, I DO NOT BELIEVE THAT'S CONSISTENT WITH WHAT PRIOR NOMINEES HAVE DONE WHO HAVE BEEN IN THIS CIRCUMSTANCE. IT'S A DECISION FOR THE SENATE AND THE EXECUTIVE BRANCH. JUSTICE SCALIA EXPLAINED THAT VERY CLEARLY, I THOUGHT, IN HIS HEARING. >> ARE YOU HAPPY WITH THAT DECISION? >> I DO NOT -- IT'S NOT FOR ME TO SAY, SENATOR. THIS IS A DECISION -- THE LONG-TERM INTERESTS OF THE SENATE AND THE EXECUTIVE BRANCH, PARTICULARLY THE EXECUTIVE BRANCH, ARE AT PLAY. AND JUSTICE SCALIA, AGAIN, EXPLAINED THAT WELL, I THOUGHT, IN HIS -- >> I WASN'T HERE FOR JUSTICE SCALIA. >> LET ME INTERRUPT WITHOUT TAKING TIME AWAY FROM HIM. THE NOMINEE DOESN'T NEED ANY HELP FROM ME TO ANSWER THIS. BUT WE DON'T CARE WHAT THE NOMINEE THINKS. WE'VE GOT TO FOLLOW THE PRESIDENTIAL RECORDS ACT. AND THAT'S WHAT WE'RE FOLLOWING, IS THE LAW. >> MR. CHAIRMAN, WITH ALL DUE RESPECT, FOLLOWING THE PRESIDENTIAL RECORDS ACT INVOLVES THE NATIONAL ARCHIVES. THE NATIONAL ARCHIVES IS NOT INVOLVED IN THIS PROCESS. IT'S A MR. BILL BURKE, WHO WAS A FORMER ASSISTANT TO THE NOMINEE, WHO HAS DECIDED WHAT WILL BE WITHHELD, WHAT IS GOING TO BE COMMITTEE CONFIDENTIAL. SO IT ISN'T THE PRESIDENTIAL RECORDS ACT, PLEASE. >> WELL, STILL, LET ME MAKE CLEAR HERE, WE ANTICIPATE SOME OF THIS, SO LET ME READ. CRITICIZE THE COMMITTEE PROCESS FOR OBTAINING JUDGE KAVANAUGH'S RECORDS. THEY HAVE ACCUSED US OF CUTTING THE NATIONAL ARKOOISCHIVES OUT OF THE PROCESS. SO THIS IS WHERE I WANT TO SET THE RECORD STRAIGHT. PRESIDENT BUSH ACTED CONSISTENTLY WITH FEDERAL LAW WHEN HE EXPEDITED THE PROCESS AND GAVE US UNPRECEDENTED ACCESS IN RECORD TIME TO JUDGE KAVANAUGH'S RECORD, BUT WE HAVE WORKED HAND IN GLOVE WITH THE ARCHIVES THROUGHOUT THIS PROCESS AND THE DOCUMENTS THIS COMMITTEE RECEIVED ARE THE SAME AS IF THE ARCHIVES HAD DONE THE INITIAL REVIEW. IN FACT, THE ARCHIVES IS NOT PERMITTED BY LAW TO PRODUCE RECORDS TO THE COMMITTEE WITHOUT GIVING BOTH PRESIDENT BUSH AND A CURRENT PRESIDENT AN OPPORTUNITY TO REVIEW. THE NATIONAL ARCHIVES WAS NOT CUT OUT OF THE ...

PROCESS. AS PRESIDENT BUSH'S REPRESENTATIVE INFORMED THE COMMITTEE, QUOTE, FROM HIS LETTER, BECAUSE WE HAVE SOUGHT, RECEIVED, AND FOLLOWED ARCHIVIST VIEWS ON ANY DOCUMENTS WITHHELD AS PERSONAL DOCUMENTS, THE RESULTING PRODUCTION OF DOCUMENTS TO THE COMMITTEE IS ESSENTIALLY THE SAME AS IF NARA HAD CONDUCTED ITS REVIEW FIRST, AND THEN SOUGHT OUR VIEWS AND THE CURRENT ADMINISTRATION VIEWS AS REQUIRED BY LAW. IN OTHER WORDS, THE DOCUMENTS THIS COMMITTEE RECEIVED ARE THE SAME AS IF THE ARCHIVES HAD DONE THE INITIAL REVIEW. WE'RE JUST ABLE TO GET THE DOCUMENTS FASTER BY DOING IT THIS WAY, WHICH GAVE THE SENATE AND THE AMERICAN PEOPLE UNPRECEDENTED ACCESS IN RECORD TIME TO A SUPREME COURT NOMINEE RECORD. CONTINUE. >> CHAIRMAN OF THE NATIONAL ARCHIVES HAVE STATED PUBLICLY TO THE WAY THAT WE ARE HANDLING THE RECORDS FOR THIS NOMINATION ARE UNPRECEDENTED AND THEY'VE HAD NOTHING TO DO WITH IT. THEY HAVE ASKED UNTIL THE END OF OCTOBER TO PRODUCE RECORDS. AND THEY HAVE BEEN TOLD, WE DON'T NEED YOU, WE'RE GOING TO FINISH THIS HEARING LONG BEFORE THEN. I WOULD LIKE TO ASK BE PLACED IN THE RECORD THE STATEMENT FROM THE NATIONAL ARCHIVES, RELATED TO THE RECORDS RELATED TO JUDGE KAVANAUGH. I HAVE PLACED CONSENSUS IN THE RECORD. >> I'M SORRY? >> STATEMENT FROM THE NATIONAL ARCHIVES. >> PUT IN THE RECORD? YES, WITHOUT OBJECTION. >> NOW I'M GOING TO THROW YOU A PITCH WHICH YOU HAVE SEEN COMING FOR 12 YEARS. I WANT TO TALK TO YOU ABOUT THE 2006 TESTIMONY WHICH YOU GAVE BEFORE THIS COMMITTEE. IT WAS AT A DIFFERENT TIME. WE WERE VERY CONCERNED ABOUT THE ISSUE OF TORTURE AND DETENTION AND INTERROGATION. YESTERDAY, I ASKED YOU TO SHOW THE AMERICAN PEOPLE THAT YOU HAVE NOTHING TO HIDE BY COMING CLEAN WITH US ON THIS ISSUE. AND I WOULD LIKE TO REFER SPECIFICALLY TO SOME OF THE QUESTIONS THAT WERE RAISED BECAUSE OF THAT 2006 TESTIMONY. I BELIEVE WE HAVE HERE A STATEMENT -- MY QUESTION, AS WELL AS YOUR RESPONSE. AND I'M SURE YOU'VE SEEN THIS, BECAUSE IT'S BEEN REPORTED IN THE PAPER THAT YOU'VE BEEN WAITING FOR THIS QUESTION FOR A LONG TIME. WHEN I WAS BACK IN THE DAY, A TRIAL ATTORNEY, PREPARING A WITNESS FOR INTERROGATION, TESTIMONY, DEPOSITION, GIVING TESTIMONY AT TRIAL, I SAID TWO THINGS, TELL TRUTH, AND DON'T ANSWER MORE THAN YOU'RE ASKED. DON'T VOLUNTEER INFORMATION. JUDGE KAVANAUGH, YOU FAILED ON THE SECOND COUNT. >> THE QUESTION I ASKED YOU, WHAT WAS YOUR ROLE IN THE ORIGINAL HAYNES NOMINATION DECISION TO RE-NOMINATE HIM. AND AT THE TIME OF THE NOMINATION, WHAT DID YOU KNOW ABOUT MR. HAYNES' ROLE IN CRAFTING THE INTERROGATION POLICIES? YOUR RESPONSE. SENATOR, I DID NOT. I WAS NOT INVOLVED AND AM NOT INVOLVED IN THE QUESTIONS ABOUT THE RULES GOVERNING DETENTION OF COMBATANTS OR, AND SO I DO NOT HAVE THE INVOLVEMENT WITH THAT. AND WITH RESPECT TO MR. HAYNES' NOMINATION, I HAVE KNOWN JIM HAYNES, BUT IT WAS NOT ONE OF THE NOMINATIONS THAT I HANDLE. >> CAN YOU RAISE IT A LITTLE HIGHER? I CAN'T SEE THE BOTTOM. GOT IT. >> I ASKED YOU ABOUT THIS WHEN WE HAD A MEETING IN MY OFFICE. >> YES. >> AND I STILL DON'T UNDERSTAND YOUR ANSWER, IN TERMS OF HOW YOU COULD STATE AS CLEARLY AND UNEQUIVOCALLY, I WAS NOT INVOLVED AND AM NOT INVOLVED IN THE QUESTIONS ABOUT THE RULES GOVERNING THE DETENTION OF COMBATANTS. YOU WERE INVOLVED IN THE DISCUSSIONS ABOUT ACCESS TO COUNSEL FOR DETAINEES. YOU CONFIRMED THIS DURING THE MEETING WE HAD IN MY OFFICE AND THERE ARE MULTIPLE MEDIA REPORTS, AS WELL. YOU WERE INVOLVED IN DISCUSSIONS REGARDING DETAINEE INGING DETAINED U.S. COMBATANTS, YASSER HAMDI AND JOSE PAPADILLA. YOU CONFIRMED THAT. AND YOU WERE INVOLVED ...

WITH PRESIDENT BUSH'S 2005 SIGNING STATEMENT ON SENATOR JMOHN McCAIN'S AMENDMENT BANNING CRUEL AND DEGRADING TREATMENT OF DETAINEES. YOU CONFIRMED THAT IN THE MEETING. THERE WERE NO EXCEPTIONS IN YOUR ANSWER GIVEN TO ME IN 2006, NOT FOR LITIGATION OR DETAINEE ACCESS TO COUNSEL OR THE McCAIN AMENDMENT. SO IF THOSE THREE BASED ON THE LIMITED DOCUMENTS WHICH WE'VE BEEN GIVEN ARE OBVIOUS, WHAT WERE YOU TRYING TO TELL ME HERE? DID YOU REALLY DISCLOSE ACCURATELY YOUR ROLE? YES. I UNDERSTAND THE QUESTION THEN AND MY ANSWER THEN AND I UNDERSTAND -- [ ...

PROTESTERS PROTESTING ] >> GO AHEAD. >> I UNDERSTAND THE QUESTION THEN AND THE ANSWER THEN AND I UNDERSTAND THE QUESTION NOW AND THE ANSWER NOW, TO BE 100% ACCURATE. YOU WERE CONCERNED ABOUT WHETHER I WAS INVOLVED IN THE PROGRAM THAT TWO OTHER NOMINEES HAD BEEN INVOLVED IN. AND THE REPORT THAT SENATOR FEINSTEIN PRODUCED, THE JUSTICE DEPARTMENT REPORT, THEY SHOWED THAT I ...

WASN'T. IN OTHER WORDS, THE PROGRAM, CRAFTING THE PROGRAM FOR THE EN ENHANCED INTERROGATION TECHNIQUES FOR THE DETAINEES. >> MR. -- JUDGE KAVANAUGH, THAT'S NOT THE QUESTION. DO YOU SEE ME ASKING WHETHER YOU CRAFTED THE PROGRAM? I DIDN'T. I ASKED YOU ABOUT YOUR INVOLVEMENT IN THE HAYNES -- AND THEN YOU -- CRAFTING -- YES. THEN YOU WENT FURTHER, YOU VIOLATED THE SECOND RULE I GIVE TO EVERY WITNESS. YOU ANSWERED MORE THAN I ASKED. THE FIRST ONE, I TOLD THE TRUTH. WELL, YOU VOLUNTEERED MORE INFORMATION THAN I ASKED AND YOU WENT FURTHER THAN YOU SHOULD HAVE. BECAUSE IN THE THREE SPECIFIC INSTANCES I'VE GIVEN YOU, YOU CLEARLY WERE INVOLVED IN QUESTIONS ABOUT RULES, GOVERNING DETENTION OF COMBATANTS. SO I UNDERSTOOD THE QUESTION THEN AND I UNDERSTAND IT NOW IN MY ANSWER ABOUT THAT PROGRAM. I TOLD THE TRUTH ABOUT THAT. AND IN THE REPORTS THAT HAVE COME OUT SUBSEQUENTLY HAVE SHOWN I TOLD THE TRUTH ABOUT THAT. MY NAME IS NOT IN THOSE REPORTS. NOW, FOR THE 2005 SIGNING STATEMENT, BY THAT TIME, I'M IN STAFF SECRETARY OFFICE. AND EVERYTHING THAT WENT TO THE PRESIDENT'S DESKS, EVERYTHING THAT WENT TO THE PRESIDENT'S DESKS, WITH A FEW COVERT EXCEPTIONS, WOULD HAVE SOMEHOW CROSSED MY DESK ON THE WAY. SO UHYOU ASKED, ON A SIGNING STATEMENT, IT WOULD HAVE CROSSED MY DESK ON THE WAY. SO WOULD A SPEECH DRAFT ON THE IRAQ WAR. SO WOULD A SPEECH -- YOU KNOW, THOSE THINGS WOULD HAVE CROSSED MY DESK. PREPARED BY OTHERS, NOT PREPARED BY ME, BUT THEY CROSSED MY DESK ON THE WAY TO THE PRESIDENT. IN THE 2006 HEARING, YOU TOLD CHAIRMAN ARLEN SPECTER, YOU GAVE PRESIDENT BUSH ADVICE ON SIGNING STATEMENTS, INCLUDING, QUOTE, IDENTIFYING POTENTIAL CONSTITUTIONAL ISSUES IN LEGISLATION. DID YOU MAKE ANY COMMENTS REGARDING THE DECEMBER 30th, 2005 SIGNING STATEMENT ON THE McCAIN TORTURE AMENDMENT, KD INCLUDING POTENTIAL CONSTITUTIONAL ISSUES? I CAN'T RECALL WHAT I SAID. I DO RECALL THERE WAS ...

A GOOD DEAL OF INTERNAL DEBATE ABOUT THAT SIGNING STATEMENT, AS YOU WOULD IMAGINE THERE WOULD BE. I REMEMBER THAT IT WAS CONTROVERSIAL INTERNALLY AND I REMEMBER THAT I THOUGHT, AND I CAN'T REMEMBER ALL OF THE INS AND OUTS OF WHO THOUGHT WHAT, BUT I DO REMEMBER THAT A COUNSEL OF THE PRESIDENT WAS IN CHARGE, ULTIMATELY, OF SIGNING STATEMENTS IN TERMS OF THE FINAL RECOMMENDATION TO THE PRESIDENT. >> AND JUST A FEW MONTHS LATER, YOU, UNDER OATH TOLD US YOU WERE NOT INVOLVED IN ANY OF THE QUESTIONS ABOUT THE RULES GOVERNING DETENTION OF COMBATANTS. >> SENATOR, AGAIN, WE WERE, AT LEAST I UNDERSTOOD IT THEN AND I UNDERSTAND IT NOW TO BE REFERRING TO THE PROGRAM THAT WE WERE TALKING ABOUT THAT WAS VERY CONTROVERSIAL, THAT SENATOR FEINSTEIN SPENT YEARS TRYING TO DIG INTO. AND I WAS -- I WAS NOT READ INTO THAT PROGRAM. I TOLD THE TRUTH ABOUT THAT AND, UM -- >> LET ME GO TO ANOTHER AREA OF QUESTIONING, IF I CAN. THANK YOU VERY MUCH. IN YOUR DISSENT IN GARZA VERSUS HARRGAN, YOU WROTE THAT THE COURT HAD CREATED A NEW RIGHT FOR UNLAWFUL UNITED STATES MINORS IN DETENTION TO OBTAIN IMMEDIATE ABORTION ON DEMAND. THEREBY BARRING ANY GOVERNMENT EFFORTS TO EXPEDITIOUSLY TRANSFER THE MINORS TO THEIR IMMIGRATION SPONSORS BEFORE THEY MAKE THAT MOMENTOUS LIFE DECISION. YOU ARGUED THAT PERMITTING THE GOVERNMENT ADDITIONAL TIME TO FIND A SPONSOR FOR YOUNG WOMEN IN THE CASE DID NOT IMPOSE AN UNDUE BURDEN, EVEN THOUGH THE GOVERNMENT'S CONDUCT IN THE CASE HAD ALREADY FORCED HER TO DELAY HER DECISION ON A ABORTION BY SEVERAL WEEKS. WE ARE TALKING ABOUT A YOUNG WOMAN, CHARACTERIZED AS JANE DOE, WHO DISCOVERED SHE WAS PREGNANT AFTER CROSSING THE BORDER INTO THE UNITED STATES. SHE MADE A PERSONAL DECISION THAT SHE WAS NOT READY TO BE A PARENT AND DID NOT WANT TO CONTINUE HER PREGNANCY. SHE WENT THROUGH EVERY STEP NECESSARY TOFR COMPLYE TO COMPLY WITH TEXAS STATE LAW AS WELL AS STEPS FORCED ON HER BY THE FEDERAL GOVERNMENT. SHE VISITED A RELIGIOUS ANNE T-ABORTION CRISIS PREGNANCY CENTER, WENT AN ULTRASOUND FOR NO MEDICAL PURPOSE AND WENT BEFORE A JUDGE AND OBTAINED A JUDICIAL BYPASS OF THE STATE'S PARENTAL CONSENT REQUIREMENTS. IN OTHER WORDS, THIS YOUNG WOMAN COMPLIED WITH EVERY LEGAL REQUIREMENT, INCLUDING TEXAS STATE REQUIREMENTS PLACED IN FRONT OF HER, SO SHE COULD MOVE FORWARD WITH HER DECISION. A DECISION AFFECTING HER BODY AND HER LIFE. DO YOU BELIEVE THAT THIS WAS AN ABORTION ON DEMAND? >> SENATOR, THE GARZA CASE INVOLVED FIRST AND FOREMOST, A MINOR. IT'S IMPORTANT TO EMPHASIZE, IT WAS A MINOR. >> YES. >> SO SHE HAD BEEN -- AND SHE'S IN AN IMMIGRATION FACILITY IN THE UNITED STATES, SHE'S FROM ANOTHER COUNTRY. SHE DOES NOT SPEAK ENGLISH. SHE'S BY HERSELF. IF SHE HAD BEEN AN ADULT, SHE WOULD HAVE A RIGHT TO OBTAIN THE ABORTION IMMEDIATELY. AS A MINOR, THE GOVERNMENT ARGUED THAT IT WAS PROPER OR APPROPRIATE TO TRANSFER HER QUICKLY FIRST TO AN IMMIGRATION SPONSOR. WHO IS AN IMMIGRATION SPONSOR, YOU ASK? IT IS A FAMILY MEMBER OR FRIEND WHO SHE WOULD NOT BE FORCED TO TALK TO BUT, SHE COULD CONSULT WITH IF SHE WANTED ABOUT THE DECISION FACING HER. SO WE HAD TO ANALYZE THIS, FIRST ADDS A MINOR AND THEN FOR ME, THE FIRST QUESTION ALWAYS, WHAT'S THE PRECEDENT? THE PRECEDENT ON POINT FROM THE SUPREME COURT IS THERE IS NO CASE ON EXACT POINTS, SO YOU DO WHAT YOU DO IN ALL CASES, WHAT'S THE CLOSEST BODY OF LONG POINT? THE PARENTAL CONSENT DECISIONS OF THE SUPREME COURT, WHERE THEY'VE REPEATEDLY UPHELD PARENTAL CONSENT LAWS OVER THE OBJECTION OF DISSENTERS, WHO THOUGHT THAT'S GOING TO DELAY THE PROCEDURE TOO LONG, UP TO SEVERAL WEEKS. AND I'M GETTING TO THE POINT, I'M GETTING TO THE POINT. >> BEFORE YOU GET TO THE POINT, YOU'VE JUST BYPASSED THING. YOU JUST BYPASSED THE JUDICIAL BYPASS, WHICH SHE RECEIVED FROM THE STATE OF TEXAS, WHEN IT CAME TO PARENTAL CONSENT. THAT'S ALREADY HAPPENED HERE. AND YOU'RE STILL STOPPING HER. >> I'M NOT. THE GOVERNMENT IS ARGUING THAT PLACING HER WITH AN IMMIGRATION SPONSOR WOULD ALLOW HER, IF SHE WISHED, TO CONSULT WITH SOMEONE ABOUT THE DECISION. THAT IS NOT THE PURPOSE OF THE STATE BYPASS PROCEDURE. I WANT TO BE VERY CLEAR ABOUT THAT. >> BUT JUDGE, THE CLOCK IS TICKING. >> IT IS. THE CLOCK IS TICKING. 20-WEEK CLOCK IS TICKING. SHE MADE THE DECISION EARLY IN THE PREGNANCY AND ALL THAT I DESCRIBED TO YOU IN JUDICIAL DECISIONS, THE CLOCK IS TICKING. AND YOU ARE SUGGESTING SHE SHOULD HAVE WAITED TO HAVE A SPONSOR APPOINTED, WHO SHE MAY OR MAY NOT HAVE CONSULTED IN MAKING THIS DECISION. >> AGAIN, I'M A JUDGE. I'M NOT MAKING THE POLICY DECISION. MY JOB IS TO DECIDE WHETHER THAT POLICY IS CONSISTENT WITH LAW. WHAT DO I DO? I LOOK AT PERSISTENT AND THE MOST ANALOGOUS PERSISTENT IS THE PARENTAL CONSENT PRECEDENT. FROM KC HAS THIS FACE. MINORS BENEFIT FROM CONSULTATION ABOUT ABORTION. IT'S A QUOTE, TALKING ABOUT CONSULTATION WITH PARENTS. >> SO YOU ARE ADDING A REQUIREMENT HERE, BEYOND THE STATE OF TEXAS ROIRLTS THAT THERE BE SOME SPONSOR CHOSEN WHO MAY OR MAY NOT BE CONSULTED FOR THIS DECISION. AND THE CLOCK IS TICKING ON HER PREGNANCY. >> SO A COUPLE OF THINGS THERE, SENATOR. YOU SAID YOU ARE ADDING. I'M NOT ADDING. I'M A JUDGE. THE POLICIES BEING MADE BY OTHERS, I'M DECIDING WHETHER THE POLICY IS THEN CONSISTENT WITH SUPREME COURT PERSISTENT. THERE ARE TWO THINGS TO LOOK AT IN THIS CONTEXT, SENATOR. FIRST, IT'S THE GOVERNMENT'S GOAL REASONABLE IN SOME WAY? AND THEY SAY, WE WANT THE MINOR TO HAVE THE OPPORTUNITY TO CONSULT ABOUT THE ABORTION. WELL, THE SUPREME COURT PERSISTENT SPECIFICALLY SAYS, SPECIFICALLY SAYS THAT THAT'S AN APPROPRIATE OBJECTIVE. >> WAS THIS A STATE REQUIREMENT? >> THE SECOND QUESTION -- >> WAS THAT A STATE REQUIREMENT? >> THE SECOND QUESTION IS THE DELAY, YOUR POINT, IN THE PARENTAL CONSENT CASES OF THE SUPREME COURT RECOGNIZE THAT THERE COULD BE SOME DELAY, BECAUSE OF THE PARENTAL CONSENT PROCEDURES AND IN FACT, JUSTICES MARSHALL, BRENNAN, AND BLACKMAN REPEATEDLY DISSENTED IN CASES BECAUSE THEY THOUGHT THE DELAY WAS TOO LONG. I QUOTED ALL OF THAT IN MY GARZA OPINION, AND I MADE CLEAR, IT HAD TO HAPPEN VERY QUICKLY. AND I LOOKED AT THE TIME OF THE PREGNANCY TO MAKE SURE THAT SAFETY, I SPECIFICALLY TALK ABOUT SAFETY. I SPECIFICALLY SAY THAT THE GOVERNMENT CANNOT USE THIS AS A RUSE TO SOMEHOW PREVENT THE ABORTION. I SPENT A PARAGRAPH TALKING ABOUT, SHE WAS IN AN UNDENIABLEY DIFFICULT SITUATION. SOY TRIED TO RECOGNIZE THE REAL-WORLD EFFECTS ON HER. I SAID, CONSIDER THE CIRCUMSTANCES. SHE'S A 17-YEAR-OLD, BY HERSELF, IN A FOREIGN COUNTRY, IN A FACILITY WHERE SHE'S DETAINED IN AND SHE HAS NO ONE TO TALK TO AND SHE'S PREGNANT. NOW, THAT IS A DIFFICULT SITUATION. I TRIED TO RECOGNIZE AND UNDERSTAND THAT. AND THEN AS A JUDGE, NOT THE POLICY MAKER, I TRIED TO UNDERSTAND WHETHER THE GOVERNMENT'S POLICY WAS CONSISTENT WITH THE SUPREME COURT'S PRECEDENTS. AND I DID THE BEST I COULD. AND I SAID ON THOSE PARENTAL CONSENT PREGNANT SCEDENTS, SOME PEOPLE DISAGREE WITH THOSE PRECEDENTS AND THINK THOSE KIND OF STATUTES SHOULD NOT BE ALLOWED. BUT A PRECEDENT'S NOT LIKE A CAFETERIA, WHERE I CAN TAKE THIS, BUT NOT THAT. I HAD TO TAKE K.C. IN COMPLETELY. K.C. REAFFIRMED ROE -- >> I HAVE SOME OTHER QUESTIONS, SO I WOULD LIKE -- >> WELL, IT'S AN IMPORTANT QUESTION. >> IT'S A CRITICAL QUESTION. >> I DID MY LEVEL BEST IN AN EMERGENCY POSTURE. SO I HAD BASICALLY TWO DAYS. >> IT WAS A 2-1 DECISION WHICH YOU DISSENTED FROM? >> I DID THE BEST ...

TO FOLLOW PRECEDENT AND AS I ALWAYS TRY TO DO, BE AS CAREFUL AS I CAN IN FOLLOWING THE PRECEDENT OF THE SUPREME COURT. >> LET ME ASK YOU A PERSONAL QUESTION. WHAT'S THE DIRTIEST, HARDEST JOB YOU'VE EVER HAD IN YOUR LIFE? >> I WORKED CONSTRUCTION WHEN I WAS -- THE SUMMER AFTER I WAS 16 FOR A SUMMER, 7:00 A.M. TO 3:30 P.M. MY DAD DROPPED ME OFF EVERY ...

MORNING AT 7:00, 6:55, HE WANTED ME TO BE EARLY. AND THAT'S -- THAT'S PROBABLY THE ONE. AND I SHOULD ALSO SAY, SENATOR, I HAD WHAT -- ONE PERSON, I GUESS, I GUESS, LAWN BUSINESS FOR A LONG SUMMER. I CUT A LOT OF LAWNS. THAT'S HOW I MADE SOME CASH. I STARTED THAT PROBABLY EIGHTH GRADE, MAYBE SEVENTH GRADE. I CUT MY PARENT'S LAWN, BUT I CUT A LOT OF LAWNS IN THE NEIGHBORHOOD AND DISTRIBUTED FLYERS ALL OVER THE PLACE TO SAY, IF YOU NEED YOUR LAWN CUT, CALL ME. SO LAWN CUTTING AND THEN THE CONSTRUCTION JOB THE ONE SUMMER. >> MY DIRTIEST JOB I EVER HAD WAS FOUR SUMMERS WORKING IN A SLAUGHTERHOUSE. >> YES. >> I ALWAYS WANTED TO GO BACK TO COLLEGE. >> YES. >> COULDN'T WAIT TO GET OUT OF THERE. IT WAS UNBEARABLE. IT WAS DIRTY, IT WAS HOT >> THE THINGS I DID WERE UNIMAGINABLE AND I WOULDN'T EVEN START TO REPEAT THEM. THEN CAME A CASE BEFORE YOU CALLED AGRO PROCESSER COMPANY VERSUS NRBB. AT LEAST A THIRD OF THE WORKERS, JUDGE KAVANAUGH, IN OUR NATION'S SLAUGHTERHOUSES ARE IMMIGRANTS. IT STANDS -- VISITS TO IOWA OR ILLINOIS, PROBABLY DELAWARE, YOU PICK IT. YOU'RE GOING TO FIND A LOT OF IMMIGRANTS DOING THESE MISERABLE, STINKING, HOT JOBS. MANY OF THEM ARE UNDOCUMENTED. THE WORK IS LOW PAY AND DANGEROUS. AND AS THE GAO IS NOTED, IMMIGRANTS ARE PRESSURED NOT TO EVEN REPORT INJURIES ON THE JOB. IT WAS A NOTORIOUS MEAT PACKING COMPANY OWNED BY SHAHRAM LABASKIN WHO WAS CONVICTED OF FRAUD AND MONEY LAUNDERING IN 2009. HIS 27-YEAR SENTENCE RECENTLY WAS COMMUTED BY PRESIDENT TRUMP. AGRO PROCESSORS HAD AT THE CORE OF ITS BUSINESS MODEL THE EXPLOITATION OF UNDOCUMENTED WORKERS. ALMOST HALF THEIR WORKERS WERE NOT AUTHORIZED. WORKERS ALLEGE THE COMPANY FOSTERED A HOSTILE WORKPLACE ENVIRONMENT THAT INCLUDED 12-HOUR SHIFTS WITHOUT OVERTIME PAY, EXPOSURE TO DANGEROUS CHEMICALS, SEXUAL HARASSMENT, AND CHILD LABOR. A TRUCK DRIVER AT AGROPROCESSER'S BROOKLYN HEADQUARTERS SAID, QUOTE, WE WERE TREATED LIKE GARBAGE, AND IF WE SAID ANYTHING, WE GOT FIRED IMMEDIATELY. JUDGE KAVANAUGH, YOU BENT OVERBACKWARDS TO TAKE THE COMPANY'S SIDE AGAINST THESE WORKERS. IN A 2008 CIRCUIT CASE, YOUR DISSENT ARGUED THAT THIS COMPANY'S WORKERS SHOULD BE PROHIBITED FROM UNIONIZING, BECAUSE THEY DID NOT FIT YOUR DEFINITION OF AN EMPLOYEE. TO REACH THIS CONCLUSION, YOU IMPORTED A DEFINITION OF EMPLOYEE FROM A TOTALLY DIFFERENT STATUTE. YOU IGNORED THE PLAIN LANGUAGE OF THE CONTROLLING STATUTE, THE NATIONAL LABOR RELATIONS ACT, WHICH HAS A BROAD DEFINITION OF EMPLOYEE, AS WELL AS BINDING SUPREME COURT PRECEDENT. THE MAJORITY IN THIS CASE, AND YOU WERE A DISSENTER, THE MAJORITY IN THIS CASE NOTED THAT THEIR OPINION STUCK TO THE ...

TEXT OF THE NATIONAL LABOR RELATIONS ACT AND TO THE 1986 IMMIGRATION REFORM AND CONTROL ACT, WHICH DID NOT AMEND THE NATIONAL LABOR RELATIONS ACT. THEY SAID THAT YOUR DISSENT -- THESE ARE THE JUDGES SAID ABOUT YOUR DISSENT, WOULD, QUOTE, ABANDON THE TEXT OF THE CONTROLLING STATUTE AND LEAD TO A, QUOTE, ABSURD RESULT. THE MAJORITY IN THIS DECISION INCLUDE GDD ONE REPUBLICAN AND ONE DEMOCRATIC OPPONENT JUDGE. JUDGE KAVANAUGH, YOU CLAIM OVER AND OVER AGAIN TO BE A TEXTUALIST, TO BE CAREFULLY WEIGHING EVERY WORD OF STATUTE. SO WHY DID YOU GO OUT OF OUR WAY IN A WAY THAT BENEFITED THIS HORRIBLE BUSINESS AND DISADVANTAGED THESE EXPLOITED WORKERS? WHY DIDN'T YOU STICK TO THE PLAIN LANGUAGE OF THE CONTROLLING STATUTE AND THE BINDING SUPREME COURT PRECEDENT? >> BECAUSE THE SUPREME COURT PREGNANT COMPELLED ME TO REACH THE RESULTS THAT I REACHED. AND HERE'S WHY, SENATOR, LET ME EXPLAIN. THE SHOURTUPREME COURT HAD A CASE CALLED THE SHIRTAN DECISION. AND THE SHIRTAN DECISION CONSIDERED THE INTERACTION OF THE NATIONAL LABOR RELATIONS LAW ACT AND THE IMMIGRATION LAW SS AND WHAT THE SUPREME COURT DID IN SHIRTAN IS HAVE THIS QUESTION AND SAID, IT IS AT THAT TIME PERMISSIBLE TO CONSIDER AN IMMIGRANT UNLAWFULLY IN THE COUNTRY AS AN EMPLOYEE UNDER THE NATIONAL LABOR RELATIONS ACT. AND PART 2B OF THE OPINION, YOU HAVE TO READ PART 2B OF THE SUPREME COURT'S OPINION. IF YOU READ PART 2B, THE COURT THEN GOES ON TO SAY, AND BECAUSE THE PRGS LAWS DO SIMMIGRATION LAWS DO NOT PROHIBIT UNEMPLOYMENT OF PEOPLE UNLANDFALL UNLAWFULLY IN THE COUNTRY, THE COURT MAKES CLEAR, AS I READ PART 2B, AND I THINK I'M CORRECT ON THIS, IS THAT IF THE IMMIGRATION LAWS DID PROHIBIT EMPLOYMENT OF SOMEONE HERE UN UNLAWFULLY IN THE COUNTRY, THEN THAT WOULD ALSO MEAN THAT THEY CAN'T VOTE IN THE UNION ELECTION. SO WHAT I WAS DOING THERE, SENATOR, IT'S ALL ABOUT PERSISTENT. I READ THAT, AND MY OPINION, IF YOU LOOK AT THE DISSENTING OPINION, I REALLY PARSE THIS VERY CAREFULLY AND I WENT DEEP. I WENT AND PULLED FROM THE SHIRTAN CASE, I WENT AND ASKED FOR THE THURGOOD MARSHAL PAPERS AND I CITED THE ORAL ARGUMENT TO MAKE SURE THAT THEY THAT WHAT I WAS READING IN THERE WAS ACTUALLY REFLECTIVE OF WHAT HAD BEEN GOING ON IN THE SUPREME COURT. AND IT IS QUITE CLEAR FROM THE ORAL ARGUMENT, THEY WERE AWARE THAT THE IMMIGRATION LAW WAS OBJECT TO BE CHANGED, AND THEY WERE AWARE OF THE INTERACTION BETWEEN THE LABOR LAW AND THE IMMIGRATION LAW. SO I THINK I -- I STAND BY WHAT I WROTE THEN AND I THINK I CORRECTLY ANALYZED PART 2B. NOW, SENATOR -- >> I'M GOING TO RUN OUT OF TIME HERE, SO -- >> IF THE SUPREME COURT SHIRTAN OPINION HAD ENDED AT PART 2A, 100% WOULD AGREE WITH YOU AND MY DECISION WOULD HAVE BEEN DIFFERENT. >> WELL, LET ME -- >> IF YOU READ PART 2B, I THINK YOU SEE -- >> YOU SAID EARLIER TODAY, YOU DON'T GET TO PICK AND CHOOSE WHICH SUPREME COURT PERSISTENT YOU FOLLOW. THE MAJORITY IN AN AGROPROCESSER'S CASE WAS FOLLOWING SUPREME COURT PRECEDENT. IN THE SHIRTAN CASE, THE SUPREME COURT, A 7-2 DECISION, SAID THE THAT UNDOCUMENTED IMMIGRANTS ARE EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT. I QUOTE, SINCE UNDOCUMENTED ALIENS ARE NOT AMONG THE FEW GROUPS OF WORKERS EXPRESSLY LYLY EXEMPTED BY CONGRESS, THEY PLAINLY COME WITHIN THE BROAD STATUTORY DEFINITION OF EMPLOYEE. THAT'S A QUOTE FROM THE CASE. >> THAT'S PART 2A. YOU HAVE TO GO TO PART 2B. >> LET ME TALK ABOUT A FEW PEOPLE WHO COULDN'T AGREE WITH YOU MORE. EVERYONE ELSE WHO LOOKED AT THIS QUESTION, THE NATIONAL LABOR BOARD, TWO APPEALS COURT JUDGES, INCLUDING ONE REPUBLICAN APPOINTEE FOLLOWED THE SUPREME COURT PERSISTENT AND CAME TO THE OPPOSITE CONCLUSION THAT YOU DID. I UNDERSTAND YOU MAY HAVE PREFERRED THE SHIRTAN DISSENT, BUT YOU FAILED TO FOLLOW SUPREME COURT PRECEDENT. THIS WAS A CASE WHERE THE NATIONAL LABOR RELATIONS ACT INCLUDED THOSE WHO ARE UNDOCUMENTED, WHO COULD UNIONIZE TO PROTECT THEMSELVES IN THE WORKPLACE. YOU WENT OUT OF YOUR WAY TO DISSENT ALL THE WAY ALONG AND MAKE SURE THEY DIDN'T -- OR IN YOUR VIEW, THAT THEY DID NOT HAVE THAT RIGHT TO UNIONIZE. >> I VERY RESPECTFULLY DISAGREE, SENATOR. SFOURT DID SAY THE SUPREME COURT DID SAY IT WAS COVERED. THEN THE SUPREME COURT GOES ON TO SAY, AND WE CONSIDER ALSO IN RESOLVING THIS QUESTION, THE CONFLICT BETWEEN THE NATIONAL LABOR RELATIONS ACT AND THE IMMIGRATION LAWS AND MAKES CLEAR, AS I READ IT, IF THE IMMIGRATION LAWS HAD MADE EMPLOYMENT OF SOMEONE HERE IN THE COUNTRY UNLAWFULLY ILLEGAL, THAT WOULD BE PROHIBITED IN THE CASE. IF YOU GO BACK, I QUOTE THE ORAL ACTOR TRANSCRIPT FROM SHIRTAN IN MY DISSENTING OPINION. AND LOOK, I HAD NO AGENDA IN ANY DIRECTION ON THE -- I'M A JUDGE. I'M JUST TRYING TO RESOLVE THE PRECEDENT -- >> LET ME CLOSE BY SAYING THIS. I'M JUST A JUDGE, I JUST FOLLOW PRECEDENT. GOSH, WE'VE HEARD THAT SO OFTEN. AND WE HOPE IT'S THE CASE, BUT WE KNOW THERE'S MUCH MORE TO YOUR JOB THAN THAT. >> I AGREE. >> THE FACT THAT YOU WERE A DISSENTER AND EVERYONE ELSE SAW THIS THE OTHER WAY SHOULD GIVE US PAUSE WHEN YOU SAY, I'M JUST FOLLOWING PRECEDENT. >> WELL, I, RESPECTFULLY, SENATOR, THAT OPINION -- I'M PROUD OF THAT OPINION, BECAUSE I THINK IT CAREFULLY DETAILS THE LAW IN THAT CASE. OF FOLLOWING THE SUPREME COURT PREGNANT. AND TO YOUR POINT THAT OTHER JUDGES DISAGREE, THERE WAS A CASE I HAD ABOUT TEN YEARS ...

AGO, IT WAS A CASE WHERE I RULED IN FAVOR OF A CRIMINAL DEFENDANT ON A RESTITUTION MATTER. EVERY COURT BEFOREHAND DISAGREED. I WROTE THE MAJORITY OPINION. EVERY COURT AFTER US DISAGREED. FINALLY GOT TO THE SUPREME COURT THIS YEAR AND THEY AGREED WITH OUR ONE OPINION. THE PAPANO OPINION. JUST TO POINT OUT THAT JUST BECAUSE OTHER COURT OF APPEALS MIGHT HAVE DISAGREED DOES NOT NECESSARILY MEAN THAT WE WERE NECESSARILY WRONG, BECAUSE THE SUPREME COURT ULTIMATELY DECIDES THAT. I UNDERSTAND YOUR QUESTION AND I APPRECIATE THEM. SENATOR. SENATOR CORNYN AND SENATOR LEE IS GOING TO CHAIR WHILE I HAVE ANOTHER APPOINTMENT. THANK YOU, MR. CHAIRMAN. MR. CHAIRMAN, I WAS GRATEFUL THAT TODAY'S HEARING, AT LEAST AS FAR AS THE COMMITTEE IS CONCERNED, IS A LOT MORE DIGNIFIED AND CIVIL. BUT UNFORTUNATELY, SOME OF THE HIGH JINX CONTINUE EVEN ON THE SENATE FLOOR. I KNOW SENATOR McCONNELL HAS CONSENT FOR THE JUDICIARY COMMITTEE TO CONTINUE MEETING DURING TODAY'S SESSION OF THE SENATE. SENATOR SCHUMER OBJECTED, TO SENATOR McCONNELL WAS LEFT WITH NO OPTION BUT TO ADJOURN THE SENATE AND ALLOW THE COMMITTEE TO CONTINUE TO MEET. THAT'S UNFORTUNATE. SO JUDGE, I BELIEVE WE MET IN THE YEAR 2000. YES. JUST TO TAKE A LITTLE WALK DOWN MEMORY LANE HERE, WHEN I WAS ATTORNEY GENERAL OF TEXAS AND HAD A CHANCE TO ARGUE A CASE IN FRONT OF THE SUPREME COURT OF THE UNITED STATES, YOU, TED OLSEN, AND PAUL CLEMENT, I BELIEVE. -- YES YES. -- HELPED ME GET READY. I REGRET YOU DIDN'T HAVE BETTER MATERIAL TO WORK WITH. IT WAS AN HONOR, SENATOR. IT WAS A GREAT EXPERIENCE AND AN EDUCATIONAL EXPERIENCE, BUT I GOT TO EXPERIENCE YOUR SKILLS AS A LAWYER AND FOLLOWED YOUR CAREER CLOSELY SINCE AND PROUD TO SUPPORT YOUR NOMINATION BASED ON MY PERSONAL KNOWLEDGE OF YOUR SKILLS, YOUR TEMPERAMENT, AND YOUR CHARACTER AND YOUR FIDELITY TO THE RULE OF LAW. BUT I DO WANT TO PICK ONE BONE WITH YOU. I DID -- THIS ISN'T UNIQUE TO YOU. BASED ON THAT EXPERIENCE, THAT CASE, AS YOU MAY RECALL, INVOLVED A TRADITION IN THE SANTA FE INDEPENDENT SCHOOL DISTRICT, UNFORTUNATELY, WHICH WAS THE SITE OF A SHOOTING IN MORE RECENT DAYS. BUT BACK THEN, THE PRACTICE BEFORE FOOTBALL GAMES IS THAT THE STUDENTS WOULD BE ABLE TO VOLUNTEER TO OFFER A PRAYER BEFORE THE FOOTBALL GAME. THEY WEREN'T REQUIRED TO DO SO, THE SCHOOL DIDN'T PICK THEM, THEY COULD OFFER AN INSPIRATIONAL SAYING OR READ A POEM OR ANYTHING ELSE, BUT THAT WAS THE PRACTICE. WELL, UNTIL THE ACLU FILED SUIT AND UNFORTUNATELY IT WAS HELD TO BE UNCONSTITUTIONAL IN VIOLATION OF THE ESTABLISHMENT CLAUSE. I'M NOT GOING TO ASK FOR YOUR OPINIONS, BECAUSE THIS ISSUE WILL LIKELY COME BACK BEFORE THE T COURT. BUT SINCE I MENTIONED IT TO JUSTICE GORSUCH, I'LL MENTION TO IT TO YOU. THE THING THAT HAS STUCK IN MY CRAW FOR THE LAST 18 YEARS IS THE DISSENT WRITTEN BY CHIEF JUSTICE REHNQUIST. WHICH TAKES EXCEPTION TO THE MAJORITY'S DECISION, SAYING THEY DISTORTED EXISTING PRECEDENT, BUT HE GOES ON TO SAY, EVEN MORE DISTURBING THAN ITS HOLDING IS THE TONE OF THE COURT'S OPINION. IT BRISTLES WITH HOSTILITY TOWARDS ALL THINGS RELIGIOUS IN PUBLIC LIFE. NEITHER THE HOLDING NOR THE TONE OR THE OPINION IS FAITHFUL TO THE MEANING OF THE ESTABLISHMENT CLAUS CLAUS CLAUSE. WHEN IT IS RECALLED THAT GEORGE WASHINGTON HIMSELF AT THE REQUEST OF THE VERY CONGRESS WHICH PASSED THE BILL OF RIGHTS PROCLAIMED A DAY OF PUBLIC THANKSGIVING AND PRAYER TO BE OBSERVED BY ACKNOWLEDGING WITH GRATEFUL ...

HEARTS THE MANY AND SIGNAL FAVORS OF THE ALMIGHTY GOD. SINCE I HAD YOU HERE, I THOUGHT I WOULD MENTION THAT. I'M NOT ASKING FOR YOUR OPINION, SINCE LIKELY YOU'LL BE CALLED UPON TO DECIDE CASES INVOLVING THE ESTABLISHMENT CAUSE HERE IN THE FUTURE. BUT SINCE WE HAD THAT HISTORY TOGETHER, I THOUGHT I WOULD JUST TELL YOU IT STILL STICKS IN MY CRAW. >> I UNDERSTAND, SENATOR. WE REMEMBER CERTAINLY CASES WE LOST, I REMEMBER, AND THEY STILL STICK IN MY CRAW, TOO, SENATOR. >> I JUST MARVEL UNDER THE FIRST AMENDMENT, WE CAN -- VARIETY OF VOICES CAN SPEAK, AND THAT'S GENERALLY A GOOD THING, BUT IT CAN BE ABOUT VIOLENCE, SEXISM, IT CAN BE ABOUT ALMOST ANYTHING, BUT YOU CAN'T SPEAK ABOUT RELIGION IN A PUBLIC FORUM. >> WELL, THERE HAVE BEEN CASES FROM THE SUPREME COURT, I THINK IN MORE RECENT YEARS, CASES LIKE THE GOOD NEWS CLUB CASE, CASE LIKE THE TRINITY LUTHERAN CASE, CASES LIKE THE TOWN ...

OF GREECE CASE, WHERE I THINK THE SUPREME COURT HAS RECOGNIZED THE SPONSOR, OF COURSE, OF RELIGIOUS LIBERTY IN THE UNITED STATES AND ALSO HAS RECOGNIZED, I THINK, THAT RELIGIOUS SPEAKERS, RELIGIOUS PEOPLE, RELIGIOUS SPEECH IS ENTITLED TO A SPACE IN THE PUBLIC SQUARE. AND NOT TO BE DISCRIMINATED AGAINST. THE TRINITY LUTHERAN IS AN IMPORTANT ONE. THE GOOD NEWS CLUB CASE, THAT'S AN AFTERNOON PROGRAM IN A SCHOOL GYM OR AUDITORIUM AND A RELIGIOUS GROUP WAS EXCLUDED. AND THE SUPREME COURT MADE CLEAR, YOU CAN'T JUST EXCLUDE THE RELIGIOUS GROUP. I THINK THERE HAVE BEEN SOME DEVELOPMENTS SINCE THEN IN TERMS OF RELIGIOUS EQUALITY AND RELIGIOUS LIBERTY THAT ARE IMPORTANT. THOSE CASES ARE ALWAYS DIFFICULT FACTUALLY, BUT THE PRINCIPLE YOU'RE ESPOUSING I DO THINK ARE REFLECTED IN SOME MORE RECENT SUPREME COURT PRECEDENT. >> I'LL JUST CONCLUDE WITH THIS. AS I UNDERSTAND, THE CONSTITUTION REQUIRES A GOVERNMENT TO BE NEUTRAL. AND AS CHIEF JUSTICE REHNQUIST, I THINK IN THIS CASE, THE GOVERNMENT EVIDENCED HOSTILITY TO RELIGIOUS SPEECH IN THE PUBLIC CARE. THAT'S ONE PERSON'S OPINION. AND I'M NOT ASKING YOU OPINION WITH REGARD TO A CASE THAT MAY BECOME BEFORE THE COURT. [ PROTESTERS PROTESTING ] >> MR. CHAIRMAN, I HOPE THAT TIME WON'T BE SUBTRACTED FROM THEY 30 MINUTES. >> IT WILL NOT ...

BE. >> THANK YOU. SO, JUDGE KAVANAUGH, I'M INTRIGUED BY A COMMENT YOU MADE EARLIER ABOUT THE ROLE OF PRECEDENT. WE'VE HEARD A LOT ABOUT PRECEDENT, WE ALLUDED TO THIS BOOK THAT YOU AND OTHERS, OTHER JUDGES WROTE WITH BRIAN GARNER ON THE LAW OF JUDICIAL PRECEDENT. I CHECKED IT OUT. IT'S 900 PAGES LONG. AND I HAVEN'T READ EVERY PAGE OF IT EITHER. >> I DON'T THINK IT'S MEANT -- IT'S NOT MEANT TO BE READ WORD FOR WORD. IT'S A TREATISE WHERE YOU GO TO A SECTION THAT MIGHT BE ON POINT OR SOMETHING. >> BUT LET ME JUST ASK YOU A MORE BASIC QUESTION AND WE CAN WORK OUR WAY INTO THAT. SHOULD -- WHEN PEOPLE GO TO COURT, SHOULD THEY EXPECT A DIFFERENT OUTCOME IF THE JUDGE WAS NOMINATED BY A REPUBLICAN FROM A COURT WHERE THE JUDGE WAS NOMINATED BY A DEMOCRAT? >> NO. THAT'S AN IMPORTANT PRINCIPLE OF JUDICIAL INDEPENDENCE AND THE JUDICIAL ROLE. THE JUDGE'S EMPIRE VISION, THAT CHIEF JUSTICE ROBERTS ARTICULATED, AND I'VE TALKED ABOUT PUBLICLY MANY TIMES IS CRITICAL, WHEN YOU GO TO A BASEBALL GAME, THE UMPIRE IS NOT WEARING THE UNIFORM OF ONE TEAM OR ANOTHER. AND THAT'S A CRITICAL PRINCIPLE. >> WELL, WITH ITIT STRIKES ME AS AN IMPORTANT POINT GIVEN THE SUGGESTION THAT ONE OF THE REASONS THAT PEOPLE HAVE OBJECTED TO YOUR NOMINATION IS, I BELIEVE THE QUOTE WAS, YOU HAVE REPUBLICAN BLOOD FLOWING IN YOUR VEINS. STRIKES ME AS STRANGE AND BIZARRE STATEMENT. >> I'VE BEEN A JUDGE FOR 12 YEARS, AND 307 OPINIONS, I'M VERY PROUD OF THAT RECORD AND BEEN AN INDEPENDENT JUDGE FOR 12 YEARS. AS A JUDGE, YOU'RE NOT A REPUBLICAN OR A DEMOCRAT, AS A FEDERAL JUDGE. >> AND YOU TALKED A LITTLE BIT ABOUT THE CONSTITUTIONAL BASIS FOR A JUDGE'S OBLIGATION TO APPLY EXISTING PRECEDENT. COULD YOU EXPAND ON THAT A LITTLE BIT MORE? BECAUSE I THINK MOST PEOPLE ARE UNDER THE IMPRESSION, THIS IS SORT OF A DISCRETIONARY MATTER, AND YOU CAN SORT OF CHERRY-PICK BETWEEN WHAT PRECEDENTS YOU DECIDE TO FOLLOW AND WHICH ONES YOU DON'T FOLLOW. >> WELL, THERE'S BEEN A DEBATE SOME TIMES ABOUT WHAT ARE THE ORIGINS OF PRECEDENT. WHY DO YOU FOLLOW PRECEDENT? AND AS I SEE IT, THERE ARE A NUMBER OF REASONS YOU WOULD ...

CITE. STABILITY, PREDICTABILITY, IMPARTIAL IMPARTIALITY, RELIANCE INTERESTS. BUT ALL OF THOSE ARE NOT MERE POLICIES IN MY VIEW. AS I SEE IT, THE SYSTEM OF PRECEDENT COMES FROM ARTICLE III ITSELF. WHEN ARTICLE III REFERS TO THE JUDICIAL POWER SHALL BE VESTED IN ONE SUPREME COURT AND SUCH INFERIOR COURTS AS CONGRESS SHALL, FROM TIME TO TIME, ESTABLISH, TO MY MIND, THE PHRASE JUDICIAL POWER. YOU THINK ABOUT, WHAT DOES THAT ENTAIL? AND YOU LOOK AT THE MEANING, THE MEANING AT THE TIME OF JUDICIAL POWER, AND YOU LOOK, ONE SOURCE OF THAT IS 78. AND THAT IS 78. IT'S WELL EXPLAINED THAT JUDGES MAKE DECISIONS ...

BASED ON PREGNANTAS PRECEDENT. AND PRECEDENT, THEREFORE, AS I READ, HAS CONSTITUTIONAL ORIGINS AND CONSTITUTIONAL BASIS IN THE TEXT OF THE CONSTITUTION. >> AND I THINK YOU'VE TOUCHED ON THIS, AS WELL. JUDGES, UNLIKE LEGISLATORS, DON'T RUN FOR ELECTION. THEY DON'T HAVE A PLATFORM. THIS IS WHAT I DO IF ELECTED INTO OFFICE. ONE OF THE MOST IMPORTANT ELEMENTS OF THE -- OF LIMITING THE IMPORTANT ROLE OF JUDGES, I THINK IS THAT WE'RE REQUIRED TO DECIDE A CASE ON A CASE-BY CASE BASIS. RATHER THAN ISSUING SOME SORT OF ORACLE, SAYING, HENCEFORTH, THE LAW WILL BE THUS. ASSUMING YOU GET EIGHT OTHER JUDGES ON THE TEAM OF NINE TO AGREE WITH YOU. CAN YOU TALK ABOUT THE IMPORTANCE OF DECIDING CASES ON A CASE-BY-CASE BASIS? >> WE'LL ADD ANOTHER 20 SECOND? >> THANK YOU. >> ABSOLUTELY, SENATOR. IT'S IMPORTANT TO UNDERSTAND AND I THINK SENATOR GRAHAM ALLUDED TO THIS AS WELL, AS JUDGES, YOU JUST DON'T ISSUE POLICIES OR ISSUE OPINIONS OUT OF THE BLUE. YOU DECIDE, AS ARTICLE III SAYS, CASES AND CONTROVERSIES. AND THAT MEANS A PROCESS. AS THEY COME INTO THE FEDERAL TRIAL COURT AND LITIGATE AGAINST ONE ANOTHER. THERE'S A PROCESS THERE, A TRIAL OR SOME REJUDGMENT MOTION. THE DISTRICT JUDGE RENDERS A DECISION. THEN THAT COMES UP TO THE COURT OF APPEALS, IN MY CASE. AND THERE'S BRIEFING AND ORAL ARGUMENT. I LIKE TO SAY, THERE'S A PROCESS. I LIKE TO SAY PROCESS PROTECTS YOU. IT'S ONE OF MY THINGS I ALWAYS LIKE TO KEEP IN MIND. YOU GO THROUGH A PROCESS TO HELP MAKE GOOD ...

DECISIONS, DELIBERATIVE PROCESS. AND WE HAVE A PROCESS, JUDGES ARE VERY FOCUSED ON PROCESS. AND HAVING THAT ORAL ARGUMENT, HAVING THE BRIEFING AND THEN TALKING TO YOUR COLLEAGUES. YOU CHANGE YOUR MIND. SOMETIMES BASED ON THE PROCESS OF COLLEAGUES. THAT PROCESS IS IMPORTANT. AND TO YOUR POINT, YOU'RE DECIDING THAT CASE. YOU WRITE AN OPINION. YOU'RE NOT TRYING TO RESOLVE EVERY ISSUE IMAGINABLE IN THE OPINION. YOU'RE ...

TRYING TO RESOLVE THIS CASE UNDER THE PRINCIPLES OF LAWS IN QUESTION AND DECIDE THAT CASE OR CONTROVERSY. AND THAT'S HOW JUDGES BUILD UP A SYSTEM OF PRECEDENT OVER TIME, BY DECIDING ONE CASE AT A TIME, AND NOT TRYING TO DO MORE THAN THEY CAN OR MORE THAN THEY SHOULD. [ PROTESTERS PROTESTING ] >> JUDGE, DON'T YOU THINK WHAT YOU'VE DESCRIBED FOR US AND DECIDING CASES ON A CASE-BY-CASE BASIS HAVE AN IMPORTANT FOUNDATION IN FAIRNESS? HOW WOULD SOMEBODY FEEL IF THEY KNOW YOU'VE ANNOUNCED IN ALL CASES THAT HAVE TO DO WITH SUBJECT "X," I'VE MADE UP MY MIND, I DON'T CARE WHAT THE FACTS ARE. ISN'T THAT UNFAIR TO THE LITIGANTS? >> IT CAN BE, WHERE AN OVERBROAD ...

RULING MAY RESOLVE THINGS WHERE PEOPLE WHO ARE AFFECTED BY IT MAY HAVE THOUGHT, I WASN'T PART OF THAT CASE, WHY AM I NOW AFFECTED IN A PARTICULAR WAY. I THINK ONE OF THE THINGS I COULD SAY ABOUT HOW I'VE TRIED TO WRITE MY OPINIONS, THE 300 OPINIONS IS, I'M ALWAYS CONCERNED ABOUT -- [ PROTESTERS PROTESTING ] >> I'M ALWAYS CONCERNED ABOUT UNINTENDED CONSEQUENCES. THIS IS ONE OF THE REASONS I GO THROUGH SO MANY DRAFTS IN MY OPINIONS AND REALLY WORK THROUGH THEM, IS EVEN JUST A SLOPPY FOOTNOTE OR AN AMBIGUOUS WORD IN AN OPINION, IT'S TRUE WHEN YOU'RE DRAFTING LAWS HERE, TOO. BUT IF YOU DON'T, YOU'RE CONCERNED ABOUT UNINTENDED CONSEQUENCES, WHICH IS WHY IT'S SO ...

IMPORTANT TO BE CLEAR IN THE OPINIONS AND TO BE EXACTLY PRECISE AND NOT DECIDE TOO MUCH. [ CHANTING: OUR BODIES, OUR CHOICE ] >> JUDGE, LET ME ASK YOU TO TELL US A LITTLE BIT ABOUT SEPTEMBER 11th, 2001. WHERE WERE YOU WHEN YOU HEARD THAT THE PLANES HIT THE WORLD TRADE CENTER IN WASHINGTON, D.C. AND ANOTHER PLANE HIT THE PENTAGON HERE IN WASHINGTON. I REMEMBER I WAS -- NEW YORK, I SHOULD SAY. I WAS IN THE WEST WING WHEN IT HIT THE SECOND TOWER. I REMEMBER IN THE UPSTAIRS COUNSEL'S OFFICE WITH A COUPLE OTHER PEOPLE IN THE COUNSEL'S OFFICE. AND THEN WE WERE USHERED DOWNSTAIRS AND THEN TOLD TO GET OUT, RUN OUT, WAS THERE WAS FEAR, AS WE LATER LEARNED ABOUT FLIGHT 93, DON'T KNOW IF IT WAS HEADED TO THE CAPITOL OR THE WHITE HOUSE OR SOME OTHER TARGET, OF COURSE, AND THE HEROS OF FLIGHT 93 SAVED, SAVED SO MANY AMERICANS, THE SACRIFICE THAT, OF COURSE, WE STILL ALL CELEBRATE IN THE SENSE OF CELEBRATING THEIR LIVES AND HEROISM FOR SAVING ALL OF US HERE IN WASHINGTON. BUT ENDED UP OUT IN LAFAYETTE PARK WITH THE REST OF THE STAFF AND BEWILDERED AND CHANGED AMERICA. CHANGED THE WORLD. CHANGED THE PRESIDENCY. CHANGED CONGRESS. CHANGED THE COURTS, ALL THE ISSUES THAT CAME BEFORE US. IT WAS A NEW KIND OF WAR. AS PRESIDENT BUSH DESCRIBED, WITH AN ENEMY THAT DIDN'T WEAR UNIFORMS, AND THAT WOULD ATTACK CIVILIANS AND SO NEW KINDS OF LAWS HAD TO BE CONSIDERED AND CONGRESS HAD TO WORK THROUGH THAT ...

AND PRESIDENT BUSH HAD TO FOCUS SO INTENTLY, AS I'VE SAID BEFORE, MY REMEMBRANCE IS THAT ON SEPTEMBER 12th, HIS BASIC MENTALITY WAS, THIS WILL NOT HAPPEN AGAIN. AND HAVING TRAVELED WITH HIM FROM 2003 TO 2006, EVERYWHERE, AS STAFF SECRETARY AND SEEING HIM UP CLOSE, I STILL THINK EVERY DAY I WAS WITH HIM DURING THOSE YEARS, EVERY MORNING WHEN I GOT UP, IT WAS STILL SEPTEMBER 12th, 2001, THIS WILL HAPPENNOT HAPPEN AGAIN. AND TO SEE THAT FOCUS, AND OF COURSE, HE HAD TO DO ALL THE OTHER THINGS OF THE PRESIDENCY AND ALL THE OTHER CEREMONIAL ASPECTS. BUT HE WAS SO FOCUSED ON THAT AND I'M SURE THAT'S BEEN TRUE OF THE SECEDING PRESIDENTS AS WELL, BECAUSE THE THREAT, THE THREAT STILL EXISTS, OF COURSE. WELL, AS WE CAME TO LEARN, OSAMA BIN LADEN AND AL QAIDAEDA WAS RESPONSIBLE FOR THAT ATTACK AND HAS NOW MORPHED INTO OTHER ORGANIZATIONS LIKE ISIS AND THE LIKE. BUT I WANT TO ASK YOU, YOU HAD TO. THEN SIT IN JUDGMENT, LATER ON, IN A CASE, THE HAMDAN CASE, WHICH YOU'VE ALLUDED TO EARLIER, WHERE THE DEFENDANT WAS OSAMA BIN LADEN'S PERSONAL BODYGUARD AND DRIVER. HE WAS CAPTURED BY U.S. FORCES IN AFGHANISTAN AFTER 9/11 AND DETAINED IN GAUBUANTANAMO BAY. HE SUBSEQUENTLY WENT THROUGH A MILITARY TRIBUNAL AND THEN THAT CASE WAS APPEALED TO YOUR COURT. AND JUST CORRECT ME IF I'M WRONG, BUT NOTWITHSTANDING THE EXPERIENCE YOU AND EVERYBODY YOU CARED ABOUT, HAVING BEEN THROUGH THIS TERRIBLE TRAVESTY OF 9/11, YOU RULED IN FAVOR OF OSAMA BIN LADEN'S BODYGUARD AND DRIVER, CORRECT? THAT IS CORRECT. I WROTE THE MAJORITY OPINION. HOW COULD YOU DO THAT? HOW COULD YOU POSSIBLY DO THAT? THE RULE OF LAW APPLIES TO ALL WHO COME BEFORE THE COURTS OF THE UNITED STATES. EVEN AN ENEMY COMBATANT? EQUAL JUSTICE UNDER LAW. EVERYONE IS ENTITLED -- EVEN A NON-CITIZEN? YES. NON-CITIZENS WHO ARE TRIED IN U.S. COURTS, OF COURSE, HAVE THE CONSTITUTIONAL RIGHTS. AND REALLY, MY MODEL ON THAT JUDICIAL MODEL FOR THINKING ABOUT SOMETHING LIKE THAT, BECAUSE I THOUGHT ABOUT WHAT YOU'RE ASKING ABOUT. JUSTICE JACKSON, OF COURSE, ROBERT JACKSON, WHO HAD BEEN FRANKLIN ROOSEVELT'S ATTORNEY GENERAL IN THE CORAMATSU CASE, EVEN THOSE THAT WAS ONE OF THE POLICIES, THE MAJORITY OPINION NOW OVERRULED, BUT JUSTICE JACKSON DISSENTED AND RULED AGAINST THE ROOSEVELT POLICY. JUSTICES CLARK AND BURTON, TWO APPOINTEES OF PRESIDENT TRUMAN ARE THE TWO DECIDING VOTES IN YOUNGSTOWN STEEL. THAT'S A 6-3 DECISION. THOSE TWO WERE THE DECIDING VOTES. THOSE WERE BOTH APPOINTEES OF PRESIDENT TRUMAN. AND IT'S WARTIME AGAINST KOREA. THEY GET TO THE SUPREME COURT. THEY'RE THE DECIDING VOTES IN THE YOUNGSTOWN STEEL CASE, WHICH WAS AN EXTRAORDINARY NATIONAL MOMENT. ONE OF THE GREAT MOMENTS. SO YOUR CONCEPTION OF THE ROLE OF A JUDGE, IT'S ABOUT THE LAW. THAT'S DISTINCT FROM POLICY AND TOUR JUDICIARY DEPENDS ON HAVING PEOPLE IN IT. AND WE ARE FORTUNATE TO HAVE A WONDERFUL FEDERAL JUDICIARY. TO ANYONE WHO COMES BEFORE THE COURT, EVEN THE MOST UNPOPULAR POSSIBLE DEFENDANT IS STILL ENTITLED TO DUE PROCESS AND THE RULE OF LAW. AND I'VE TRIED TO ENSURE THAT AS A JUDGE. WELL, IT'S HARD FOR ME TO IMAGINE A MORE UNPOPULAR DEFENDANT THAN OSAMA BIN LADEN'S DRIVER AND PERSONAL BODYGUARD. SO I FIND THE SUGGESTION THAT SOMEHOW YOU ARE PREJUDICED AGAINST THE SMALL GUY IN FAVOR OF THE BIG GUY OR THAT YOU ARE PICKING AND CHOOSING WHO YOU'RE GOING TO RENDER JUDGMENT IN FAVOR OF BASED ON SOMETHING OTHER THAN THE RULE OF LAW, I THINK THIS ANSWERS THAT QUESTION CONCLUSIVELY FOR ME. THE FACT THAT YOU COULD SEPARATE YOURSELF FROM THE EMOTIONAL INVOLVEMENT YOU HAD ALONG WITH SO MANY PEOPLE YOU WORKED WITH CLOSELY WITH IN THE WHITE HOUSE ON SEPTEMBER 11th, AND YOU CAN THEN AS A JUDGE, AFTER YOU PUT ON THE BLACK ROBE AND TAKE THE OATH OF OFFICE, YOU COULD THEN RENDER A JUDGMENT IN FAVOR OF BIN LADEN'S BODYGUARD AND DRIVER, BECAUSE YOU APPLIED THE LAW EQUALLY TO EVERYBODY THAT COME TO YOUR COURT. SOMETIMES THE -- LET ME ALLUDE TO SOMETHING SENATOR SASSE, I THINK, WAS ELOQUENTLY SPEAKING ABOUT YESTERDAY IN TERMS OF THE SEPARATION OF POWERS. VERY IMPORTANT ASPECT OF OUR CONSTITUTIONAL SYSTEM AND ONE THAT I KNOW YOU'VE DEALT WITH OFTEN, ON THE D.C. CIRCUIT COURT OF APPEALS. AND THAT HAS TO DO WITH WHAT I'VE READ SOME JUDGES TALK ABOUT, SYMPTOM CONSTITUTIONAL SCHOLARS TALK ABOUT A CONVERSATION BETWEEN THE BRANCHES. IN OTHER WORDS, WHEN THE D.C. CIRCUIT COURT OR THE SUPREME COURT DECIDES A CASE, THEY FINALLY DECIDE THAT CASE, BUT THEY DON'T FINALLY DECIDE WHAT THE POLICY IS. THAT'S RIGHT. FOR THE UNITED STATES OR THE AMERICAN PEOPLE. CORRECT? THAT'S CORRECT, SENATOR. AND I THINK ONE OF THE IMPORTANT THINGS THAT JUDGES CAN DO IS ADHERE, OF COURSE, TO THE LAWS PASSED BY CONGRESS. BUT THEN IN WRITING THE OPINION, MAKE CLEAR, AND I'VE DONE THIS BEFORE, AND A LOT OF MY COLLEAGUES DO THIS, IS THAT PERHAPS THE STATUTE NEEDS UPDATING, BUT IF IT DOES, THAT IS THE ROLE OF CONGRESS TO UPDATE THE STATUTE, OR IF THERE'S -- SOMETIMES THERE'LL BE A HOLE IN ...

A STATUTE OR SOMETHING THAT SEEMS UNINTENDED IN A STATUTE AND TO ALERT CONGRESS TO THAT. CHIEF JUDGE KATZMAN OF THE SECOND CIRCUIT, HE'S A GREAT JUDGE I SERVED WITH ON THE JUDICIAL BRANCH COMMITTEE, AND HE HAS WRITTEN A BOOK ABOUT STATUTORY INTERPRETATION, BUT HE'S ALSO BEEN A LEADER OF A PROJECT TO MAKE SURE THAT CONGRESS IS ALERTED OF POTENTIAL STATUTORY ISSUES THAT LOOK LIKE THEY MIGHT HAVE BEEN THINGS THAT, PERHAPS, CONGRESS WOULD NOT HAVE INTENDED, OR AT LEAST, CONGRESS WOULD WANT BROUGHT TO ITS ATTENTION, SO IT COULD FIX. [ PROTESTER PROTESTING ] SO THAT'S BEEN VERY SUCCESSFUL. IT'S ONE, EVEN WITHOUT THAT PROJECT, HOW YOU WRITE YOUR OPINIONS, I THINK, IS IMPORTANT. WE DON'T UPDATE THE STATUTES. YOU UPDATE THE STATUTES. BUT IT'S GOOD FOR US TO WRITE OUR OPINIONS IN A WAY THAT POINTS OUT POTENTIAL ISSUES THAT CONGRESS MIGHT WANT TO BE AWARE OF. >> AND THAT'S PART OF THE CONVERSATION BETWEEN THE TWO CO-EQUAL BRANCHES OF GOVERNMENT. >> ABSOLUTELY. AND I THINK THAT'S AN IMPORTANT DIALOGUE TO HAVE BETWEEN CONGRESS AND THE JUDICIARY AND THE BACK AND FORTH IS VERY IMPORTANT ON THAT FRONT. AND I THINK THAT'S ONE THING I'M ALWAYS THINKING ABOUT IN MY OPINIONS. YOU WHERE THE LAWS, BUT IF THE LAW LOOKS LIKE THERE'S SOME ISSUE WITH IT, SOME FLAW OR SOMETHING THAT MIGHT BE AN UNINTENDED ...

CONSEQUENCE IN THE OPINION, YOU CAN IDENTIFY IT. AND THAT CAN BE SOMETHING THAT CONGRESS CAN TURN ITS ATTENTION TO, SOMETIMES. BECAUSE STAFF -- I'M

WELL AWARE THAT STATUTORY DRAFTING IS A VERY DIFFICULT PROCESS. THAT'S SOMETHING, I THINK, JUDGES TO ACTUALLY NEED TO BE MORE AWARE OF. HOW DIFFICULT THE LEGISLATIVE DRAFTING PROCESS IS. EVEN IF YOU'RE DOING IT AS ONE PERSON, IT WOULD BE DIFFICULT. BUT THEN YOU'RE DOING IT AS A COLLECTIVE BODY AND YOU'RE DOING IT WITH THE HOUSE AND THE PRESIDENT INVOLVED. THERE ARE A LOT OF PEOPLE IN IT, AND IT'S HARD TO HAVE, WITH ALL THE COMPROMISES INHERENT IN THAT, IT'S HARD OF CRYSTAL CLARITY ON EVERY POSSIBLE TOPIC. SO AS JUDGES, NUMBER ONE, WE HAVE TO RECOGNIZE THE PROCESS YOU GO THROUGH AS LEGISLATORS. THAT MEANS ADHERE TO THE COMPROMISES THAT ARE MADE, THE TEXT, AS WRINTTEN, BUT ALSO, WHEN WE WRITE OUR OPINIONS, IF THERE SEEMS TO BE SOMETHING THAT'S NOT WORKING OUT, IT'S APPROPRIATE, I THINK, FOR JUDGES TO POINT THAT OUT IN THEIR OPINIONS. AND OF COURSE, EVEN IF IT'S THE CONSTITUTIONAL BASIS FOR YOUR DECISION, THAT COULD BE CHANGED BY CONSTITUTIONAL AMENDMENT, CORRECT? WELL, THAT'S CORRECT, AS WELL. THE FRAMERS DID NOT THINK THE CONSTITUTION WAS PERFECT, BY ANY STRETCH. THEY KNEW IT HAD IMPERFECTIONS. FOR STARTERS, THE ORIGINAL CONSTITUTION DID NOT HAVE THE BILL OF RIGHTS, THE FIRST TEN AMENDMENTS. SO THERE WAS A LOT OF DISCUSS ABOUT THE RATIFYING AMENDMENTS ABOUT HAVING A BILL OF RIGHTS. AND THAT WAS QUICKLY DONE AT FIRST CONGRESS IN NEW YORK IN 1789, OF COURSE, BY JAMES MADSON MADISON TAKING THE LEAD ON THAT. BUT, SO, TOO, THEY DID NOT THINK IT WAS PERFECT. THEY HAD AN AMENDMENT PROCESS THAT SPECIFIED IN ARTICLE V OF THE CONSTITUTION. AND THAT AMENDMENT PROCESS WAS INTENDED TO BE USED. AND WE'VE SEEN IT USED TO CORRECT STRUCTURAL ISSUES, THE 12th AMENDMENT ON PRESIDENTIAL ELECTIONS, THE 17th AMENDMENT, OF COURSE, AS YOU ALL ...

KNOW WELL, ON SENATE ELECTIONS. THE 22nd AMENDMENT, WHICH LIMITED PRESIDENTS TO ONLY TWO TERMS. THE 25th AMENDMENT, WHICH CORRECTED SOME ISSUES WITH RESPECT TO VICE PRESIDENTCY. AND THE 14th, 15, AND 16th AMENDMENTS, THE MOST IMPORTANT AMENDMENTS IN THE CONSTITUTION, IN MY RESPECTS, BECAUSE IT BROUGHT THE PROMISE OF RACIAL EQUALITY THAT HAD BEEN DENIED AT THE TIME OF THE ORIGINAL CONSTITUTION INTO THE TEXT OF THE CONSTITUTION. SO THE JOB OF THE PEOPLE, WHICH IS THE CONGRESS AND THE STATE LEGISLATURES, IS TO AMEND THE CONSTITUTION. IT'S NOT THE JOB OF JUDGES TO DO THAT ON OUR OWN. AND OBVIOUSLY, THAT'S A BASIC DIVIDE OF CONSTITUTIONAL RESPONSIBILITY THAT IS SET FORTHRIGHT IN THE TEXT OF ARTICLE V OF THE CONSTITUTION. I CAN'T REMEMBER WHO SAID IT. I THINK JUSTICE JACKSON, PERHAPS, WHO SAID THE SUPREME COURT IS ALWAYS RIGHT -- ...

IS NOT FINAL BECAUSE IT'S ALL RIGHT, IT'S RIGHT BECAUSE IT'S FINAL. OR WORDS TO THAT EFFECT. BUT I ALWAYS THOUGHT, THE MORE I GOT INTO THAT, THE MORE I DISAGREED WITH THAT. BECAUSE IT IS A CONVERSATION BETWEEN THE BRANCHES. AND IF THE AMERICAN PEOPLE BELIEVE THAT AS A CONSTITUTIONAL MANNER, THE WAY THE CONSTITUTION IS BEING INTERPRETED, IT'S WITHIN OUR POWER AS THE AMERICAN PEOPLE TO CHANGE OUR OWN CONSTITUTION BY AMENDMENT. THERE'S PROVISIONS IN THE CONSTITUTION ITSELF TO DO THAT. IT'S HARD AND IT SHOULD BE HARD, BUT ULTIMATELY, THE AUTHORITY THAT WE DELEGATE TO THE GOVERNMENT FINDS ITS ORIGIN IN THE CONSENT OF THE GOVERNED. IT'S NOT SOMETHING DICTATED TO US FROM DOWN ON HIGH FROM THE MARBLE PALACE OR SOMEWHERE LIKE THAT HERE IN WASHINGTON. IT IS ULTIMATELY OUR GOVERNMENT, OUR RESPONSIBILITY, OUR AUTHORITY THAT PROVIDES LEGITIMACY TO THE GOVERNMENT ITSELF. YOU AGREE WITH THAT? >> I AGREE. OF COURSE, SENATOR, WE THE PEOPLE, FORMED THE CONSTITUTION OF THE UNITED STATES AND THE SOVEREIGNTY THAT THE PEOPLE ARE THE ULTIMATELY AUTHORITY. AND YOU'RE RIGHT ABOUT JUSTICE JACKSON'S LINE. I THINK IT IS A CLEVER LINE, BUT ULTIMATELY, I AGREE WITH YOU. I'VE ALWAYS HAD A LITTLE BIT OF A PROBLEM WITH THAT LINE, BECAUSE WE'RE INFALLIBLE BECAUSE ...

WE'REINFALLIBLE BECAUSE WE'RE FINAL. NO, BOTH PARTS OF THAT ARE WRONG IN SOME SENSE, BECAUSE I NEVER WANT TO THINK OF THE COURT AS INFALLIBLE, AND I ALSO NEVER WANT TO THINK OF IT NECESSARILY IN THE WAY YOU'RE DESCRIBING EITHER BECAUSE THERE IS THE PEOPLE ALWAYS HAVE AN ABILITY TO CORRECT THROUGH THE AMENDMENT PROCESS. NOW, THE AMENDMENT PROCESS IS HARD AND HASN'T BEEN USED AS MUCH IN RECENT DECADES BUT OF COURSE AT THE ...

BEGINNING OF THE COUNTRY, THE AMENDMENTS WERE CRITICAL, AND DRED SCOTT, OF COURSE, THE AWFUL EXAMPLE OF JUST A HORRIFIC SUPREME COURT DECISION THAT IS THEN CORRECTED IN PART, AT LEAST ON PAPER, IN THE 14th AMENDMENT, 13th, 14th AMENDMENTS, AND THAT'S AN IMPORTANT EXAMPLE, I THINK, OF YOUR -- PROBABLY THE BEST EXAMPLE, FRANKLY, OF THE POINT YOU'RE MAKING ABOUT THE PEOPLE BEING ABLE TO RESPOND TO HORRIFIC DECISION OF THE SUPREME COURT. IN FAIRNESS TO JUSTICE JACKSON, MAYBE HE WAS THINKING AS I ORIGINALLY THOUGHT ABOUT THE EXPRESSION AS BEING BINDING ON LOWER COURT JUDGES, TRIAL JUDGES, APPELLATE COURT JUDGES ...

AND THE SUPREME COURT DOES HAVE THE FINAL WORD IN THAT FOOD CHAIN OF THE JUDICIARY BUT NOT IN TERMS OF THE FUNDAMENTAL AUTHORITY OF THE AMERICAN PEOPLE. TO DECIDE WHAT LAWS SHOULD GOVERN THEM. >> I THINK THAT'S PROBABLY RIGHT, SENATOR. I DON'T WANT TO BE -- JUSTICE JACKSON IS ONE OF OUR GREATEST JUSTICES SO TO QUESTION ANYTHING IS, YOU KNOW, WHETHER IT WAS DISSENT OR BARNETT, JUSTICE JACKSON WROTE SOME OF THE GREATEST OPINIONS AND THE EXAMPLE OF JUDICIAL OPINION AS WELL BUT ON THAT ONE LINE, I TAKE YOUR POINT. >> LET ME JUST ASK YOU ONE LAST QUESTION. WE'VE TALKED A LOT ABOUT THE ROLE OF ...

PRECEDENT, AND SENATOR FEINSTEIN TALKED ABOUT STARE DECISIS BASICALLY CASES THAT HAVE BEEN DECIDED OR DECIDE THE PRECEDENT FOR FUTURE CASES, BUT ON OCCASION, THE SUPREME COURT HAS DECIDED THAT ITS DECISIONS WERE JUST WRONG AND CHOSEN TO OVERRULE THOSE PREVIOUS DECISIONS. I'M THINKING OF PLESSYV. V. FERGUSON, FOR EXAMPLE, THAT WAS A SCAR ON OUR BODY POLITIC THAT SAID SEPARATE BUT EQUAL EDUCATIONAL INSTITUTIONS MET THE REQUIREMENT OF THE 14th AMENDMENT. BUT CAN YOU TALK ABOUT THE EXTRAORDINARY CIRCUMSTANCES UNDER WHICH THE SUPREME COURT WOULD REVISIT A PRECEDENT. WELL, BROWN V. BOARD OF EDUCATION, OF COURSE, OVERTURNED PLESSY, AND PLESSY WAS WRONG THE DAY IT WAS DECIDED. IT WAS INCONSISTENT WITH TEXT AND MEANING OF THE 14th AMENDMENT, WHICH GUARANTEED EQUAL PROTECTION, AND THE SUPREME COURT IN THE WEST VIRGINIA CASE IN 1880 JURY SELECTION CASE HAD SAID, WHAT IS THIS AMENDMENT BUT THAT THE LAW SHALL BE THE SAME FOR THE BLACK AND THE WHITE AND THE SUPREME COURT, UNFORTUNATELY, BACKTRACKED FROM THAT CLEAR PRINCIPLE IN THE PLESSY DECISION IN A HORRIFIC DECISION WHICH ALLOWED SEPARATE BUT EQUAL AND THEN BROWN V. BOARD CORRECTED THAT IN 1954. OF COURSE, CORRECTED IT ON PAPER. IT'S STILL DECADES AND WE'RE STILL SEEKING TO ACHIEVE RACIAL EQUALITY, THE LONG MARCH FOR RACIAL EQUALITY IS NOT OVER, BUT BROWN V. BOARD, AS I'VE SAID PUBLICLY MANY TIMES BEFORE, THE SINGLE GREATEST MOMENT IN SUPREME COURT HISTORY BY, IN SO MANY WAYS, THE UNANIMITY THAT CHIEF JUSTICE WARREN ACHIEVED IS JUST A GREAT MOMENT. THE FACT THAT IT LIVED UP TO THE TEXT OF THE EQUAL PROTECTION CLAUSE, THE FACT THAT IT UNDERSTOOD THE REAL WORLD CONSEQUENCES OF THE SEGREGATION ON THE AFRICAN-AMERICAN STUDENTS WHO WERE SEGREGATED INTO OTHER SCHOOLS AND STAMPED WITH A BADGE OF INFERIORITY. THAT MOMENT IN BROWN V. BOARD OF EDUCATION IS SO CRITICAL TO REMEMBER AND THE OPINION IS SO INSPIRATIONAL. I ENCOURAGE EVERYONE -- IT'S A RELATIVELY SHORT OPINION, BUT IT'S VERY POWERFUL, VERY FOCUSED ON THE TEXT OF THE EQUAL PROTECTION CLAUSE AND CORRECTING THAT AWFUL PRECEDENT OF PLESSY VERSUS FERGUSON, A GREAT EXAMPLE OF LEADERSHIP AND JUST THE LAST POINT I'LL ...

MENTION ON PROCESS, THEY WERE -- IT WAS -- THEY KNEW THEY WERE GOING TO FACE POPULAR BACKLASH. THEY KNEW THEY WERE -- BUT THEY STILL DID IT SO THAT SHOWS INDEPENDENCE AND FORTITUDE, BUT THEY ALSO HAD REARGUMENT, WHICH I THINK IS A GOOD -- THEY HAD ARGUMENT ORIGINALLY AND THEN DECIDED THERE'S A LOT GOING ON AND MAYBE NOT EVERYONE'S SEEING IT THE SAME WAY AS THE JUSTICES AND THEY HAD A REARGUMENT, WHICH I THINK IS A GOOD LESSON ON PROCESS PROTECTING US AND KEEP WORKING AT IT AND KEEP WORKING AT IT AND SEE THE TEAM OF NINE THAT I MENTIONED YESTERDAY AND I MENTION TODAY, KEEP WORKING AT IT AS A TEAM OF NINE, AND THEY CAME OUT UNANIMOUS. CHIEF JUSTICE WARREN, THANKFULLY, LED THE COURT IN THAT DECISION. THAT WAS A GREAT MOMENT, THE GREATEST MOMENT IN SUPREME COURT HISTORY. >> THANK YOU, JUDGE. >> THANK YOU. I AWARDED TWO ADDITIONAL MOMENTS TO SENATOR CORNYN BECAUSE HE WAS INTERRUPTED, BY MY COUNT, FIVE TIMES DURING HIS SYSTEM. SENATOR WHITEHOUSE IS NEXT. >> GOOD AFTERNOON, JUDGE KAVANAUGH. ARE YOU GOOD FOR ANOTHER HALF HOUR? >> I'M GOOD. >> ALL RIGHT, GOOD. IN MY OFFICE, YOU TOLD ME THAT YOU COULD PROVIDE NO ASSURANCE TO ME THAT YOU WOULD UPHOLD A STATUTE REQUIRING INSURANCE COMPANIES TO PROVIDE COVERAGE FOR PREEXISTING MEDICAL CONDITIONS. IS THAT STILL TRUE HERE IN PUBLIC? >> WELL, I THINK, SENATOR, IT'S IMPORTANT TO UNDERSTAND THE PRINCIPLE AT PLAY HERE. >> WE'VE TALKED A LOT ABOUT THAT, BUT IS THE STATEMENT YOU MADE -- HAVE I RECITED IT ACCURATELY AND IS IT STILL TRUE TODAY, THAT YOU CAN GIVE NO ASSURANCE THAT YOU WOULD UPHOLD A STATUTE? >> JUDGES LIKE TO EXPLAIN THEIR DECISIONS. >> BUT I GET TO ASK THE QUESTIONS. USUALLY YOU GET THE ASK THE QUESTIONS BECAUSE YOU'RE THE APELL LA APPELLATE APPELLATE QUESTIONS BUT TODAY, FOR HALF AN HOUR, I GET TO. IS IT STILL TRUE THAT YOU CAN GIVE NO ASSURANCE THAT YOU WOULD UPHOLD A STATUTE REQUIRING ...

INSURANCE COMPANIES TO COVER PREEXISTING MEDICAL CONDITIONS. >> SO, TO PREPARE FOR THIS MOMENT, I WENT BACK AND READ -- >> I REALLY WOULD LIKE YOU TO BE AS CAREFUL WITH YOUR TIME AS YOU CAN, BECAUSE I HAVE A VERY LIMITED AMOUNT OF TIME WITH YOU, SO THE QUICKER YOU CAN GET TO THE ANSWER, IT'S -- IT COULD BE AS SIMPLE AS YES OR NO. >> BUT I CAN ENHANCE YOUR UNDERSTANDING OF MY ANSWER IF I EXPLAIN IT, I THINK. >> I REALLY JUST WANT YOUR ANSWER ON THE RECORD. I THINK I'M PRETTY CAPABLE OF UNDERSTANDING IT ON MY OWN. >> WELL, THEN, EVERYONE TO UNDERSTAND MY ANSWER. SO, THERE'S A -- THERE'S NOMINEE PRECEDENT OF HOW JUSTICES AND NOMINEES IN MY POSITION HAVE ANSWERED IN THE PAST. I'LL BE SUCCINCT IF I CAN. AND ALL EIGHT SITTING JUSTICES -- >> YOU SAID THIS IN THE HEARING SO PEOPLE WHO ARE LISTENING AND INTERESTED HAVE ALREADY HEARD YOU SAY THIS. >> WELL, I THINK IT'S REALLY IMPORTANT. >> SAY IT AGAIN, THEN. >> I WANT TO UNDERSCORE IT. ALL EIGHT SITTING JUSTICES OF THE SUPREME COURT HAVE MADE CLEAR THAT IT WOULD BE INCONSISTENT WITH JUDICIAL INDEPENDENCE, ROOTED IN ARTICLE III, TO PROVIDE ANSWERS ON CASES OR ISSUES THAT COULD COME BEFORE US. JUSTICE GINSBURG, JUSTICE KAGAN TALKING ABOUT PRECEDENT, NO THUMBS UP OR DOWN. AND I WENT BACK. JUSTICE THURGOOD MARSHALL WAS ASKED REPEATEDLY IN HIS HEARING -- >> EVERYBODY ELSE DOES IT AND YOUR ANSWER IS STILL NO. >> THE REASON EVERYONE DOES IT IS ROOTED IN JUDICIAL INDEPENDENCE AND MY RESPECT FOR PRECEDENT. IT'S MY RESPECT FOR JUDICIAL INDEPENDENCE SO I CAN'T GIVE ASSURANCES ON A SPECIFIC HYPOTHETICAL. >> OKAY. THANK YOU. LET ME GO ON TO ANOTHER SUBJECT, WHICH IS EXECUTIVE PRIVILEGE. EXECUTIVE PRIVILEGE IS A PRINCIPLE THAT IS FOUNDED IN THE CONSTITUTION AND IN THE SEPARATION OF POWERS, CORRECT? >> THE SUPREME COURT SO RULED IN THE UNITED STATES VERSUS RICHARD NIXON CASE, SO THAT WAS THE FIRST -- THE KEY ISSUE IN UNITED STATES -- >> THAT'S ALL RIGHT. I JUST NEED THE ANSWER TO THE QUESTION AND YOU'VE ANSWERED IT. >> OKAY. THE SOURCE IS IMPORTANT. >> THE -- AS A PRIVILEGE, IT NEEDS TO BE ASSERTED, DOES IT NOT? THAT'S TRUE OF PRIVILEGES, GENERALLY? >> I DON'T KNOW WHERE THIS IS GOING, BUT THE -- >> IT'S A PRETTY STRAIGHTFORWARD QUESTION. DON'T PRIVILEGES NEED TO BE ASSERTED IN ORDER TO APPLY? >> WELL, PRIVILEGES ARE RECOGNIZED. >> ONCE THEY'RE ASSERTED. >> I THINK AS A GENERAL PROPOSITION. >> FAIR ENOUGH. WHAT I'M ASKING IS A GENERAL PROPOSITION. >> IN A ATTORNEY-CLIENT PRIVILEGE, IT'S ASSERTED. >> AND WHO ASSERTS EXECUTIVE PRIVILEGE? >> ORDINARILY -- WELL, THAT IS A COMPLICATED QUESTION, SENATOR, ACTUALLY. >> WHO DOES IT COME BACK TO? ULTIMATELY, WHO ASSERTS EXECUTIVE PRIVILEGE? >> SO, IT DEPENDS WHAT YOU'RE TALKING ABOUT. SO, WHAT KIND OF EXECUTIVE BRANCH DOCUMENT YOU'RE TALKING ABOUT, IT DEPENDS. IN MY EXPERIENCE. >> ULTIMATELY, IT'S THE PRESIDENT. >> THERE'S NOT AS MUCH PRECEDENT ON THAT. THERE'S SOME. THE SUPREME COURT -- THIS WAS -- THE SUPREME COURT IN THE UNITED STATES V. RICHARD NIXON -- >> ISN'T IT FAIR TO SAY THAT EXECUTIVE PRIVILEGE BELONGS TO THE PRESIDENT OF THE UNITED STATES, THE CHIEF EXECUTIVE? >> YEAH, IT CAN ALSO BELONG TO THE FORMER PRESIDENT IN THE CASE OF FORMER PRESIDENTIAL RECORDS. THAT'S ONE CAVEAT THAT I WANT TO PUT ON THAT. >> FAIR CAVEAT. IS THE ASSERTION OF EXECUTIVE PRIVILEGE BY THE PRESIDENT SUBJECT TO USUALLY REVIEW? >> WELL, OF COURSE, BECAUSE UNITED STATES -- UNDER THE PRECEDENT, UNITED STATES V. RICHARD NIXON, SAID TWO THINGS. IT SAID ONE, THE EXECUTIVE PRIVILEGE IS CONSTITUTIONALLY ROOTED. THE SPECIAL PROSECUTOR IN THAT CASE ARGUED THAT ACTUALLY THERE WAS NO SUCH THING AS EXECUTIVE PRIVILEGE. AND THE SUPREME COURT REJECTED THAT ARGUMENT AND HELD THAT THE EXECUTIVE PRIVILEGE IS ROOTED IN THE SEPARATION OF POWERS AND IN ARTICLE II BUT SECONDLY -- >> THE REASON I'M ASKING DOESN'T HAVE MUCH TO DO WITH YOU. IT GOES BACK TO A POINT THAT WE WERE TALKING ABOUT EARLIER IN THE HEARING, WHICH IS THAT WE HAVE RECEIVED HUNDREDS AND HUNDREDS OF PAGES OF DOCUMENTS OF YOUR RECORD THAT LOOK LIKE THIS. THEY BOTH SAY, COMMITTEE CONFIDENTIAL ACROSS THEM AT AN ANGLE, AND THEN ACROSS THE FRONT, THEY SAY, CONSTITUTIONAL PRIVILEGE. AND AS A MEMBER OF THE SENATE, THIS IS NOT A QUESTION, I'M SPEAKING TO MY COLLEAGUES, I FIND MYSELF IN A QUANDARY HERE ABOUT BEING DENIED THOSE PARTICULAR DOCUMENTS, BECAUSE I CANNOT FIND ANY ASSERTION OF THE PRIVILEGE THESE DOCUMENTS JUST SUDDENLY APPEARED, AND SOMEBODY HAD PUT, CONSTITUTIONAL PRIVILEGE ON THE PAGE AND WIPED OUT ALL THE TEXT THAT WAS ON THE PAGE, AND MY UNDERSTANDING IS THAT THERE'S ORDINARILY A PROCESS FOR GETTING TO THAT DETERMINATION THAT ALLOWS FOR, ULTIMATELY, JUDICIAL REVIEW, AND WE HAVE FAILED TO GET SUBPOENAS OUT OF THE COMMITTEE FOR DOCUMENTS, SO WE CAN'T TRIGGER IT THAT WAY, AND THERE'S NO APPARENT ASSERTION OF EXECUTIVE PRIVILEGE THAT I CAN FIND IN THE RECORD OF HOW THIS PARTICULAR PAPER GOT HERE. SO, I JUST WANTED TO ESTABLISH SOME OF THE BASIC GROUND RULES OF EXECUTIVE PRIVILEGE WITH YOU, BECAUSE I THINK WE AGREE ON THAT. I THINK THAT'S BASICALLY COMMONLY AGREED AND PUT THAT INTO THE CONTEXT OF WHAT WE ARE LOOKING AT AND PARTICULARLY WITH RESPECT TO CHAIRMAN LEAHY'S QUESTIONING EARLIER, IF SOME OF THE DOCUMENTS HE'S LOOKING FOR HAVE NOW BEEN PROTECTED BY THIS NONASSERTION ASSERTION OF EXECUTIVE PRIVILEGE, WE HAVE A PROBLEM. IT IS A CONTINUING PROBLEM IN THE COMMITTEE. WE'VE HAD OTHER WITNESSES COME AND DO NONASSERTION ASSERTIONS OF EXECUTIVE PRIVILEGE, AND SO I'M SORRY TO DRAG COMMITTEE BUSINESS BEFORE YOU, BUT I DO THINK IT IS IMPORTANT THAT WE GET THIS RIGHT. >> CAN I MAKE ONE ADDENDUM BASED ON MY ...