1980s and that case, the Supreme Court instructed federal courts to defer an agencys interpretation of the law if the law is quote ambiguous, unquote. Some of your academic writings express skepticism about the Chevron Doctrine and concern that it allows an ad men straegs to impose its policy preference by avoiding the political process. I can understand why this is appealing to an administration. I also think its a threat to the separation of powers because it transfers power fro the congress and just dish area to the Executive Branch. Thats why ive reversed the Chevron Doctrine. Many members of this committee have cosponsored this ledges london attacks. As someone who has written extensively about the separation of powers, can you tell us why the separation of powers are so important and how it how it
helps to protect individual freedom. Spiration of powers protects individual lebt because it responds to the concern the framers had that Senator Klobuchar yesterday that the accumulation of one power in one body would be the very definition of tyranny. Federal 47 talks about. That federalist 69. The powers protects individual liberty. It does so because congress can pass the laws but you cant enforce the laws. A separate body has to decide to enforce the laws. Even if the law is enforced, a citizen may say, well, i want someone who didnt pass the law or enforce it to decide whether i violated the law or whether the law is constitutional. Thats why we have an independent just dish area to germany tee as an independent matter our rights and liberties. And the three branches, therefore, do separate things because it all tilts toward
liberty. Its hard to pass a law as you know in the congress. And then even if it does get passed, it affects your liberty. A separate body has to decide, usually u. S. Attorneys office to enforce the law. Thats a separate decision. That helps protect your liberty. Even if that happens, you go to a court and say i didnt advise that law or the law is unconstitutional or theyre interpreting that law in a way not consistent with what the law said the court independently decides that. Its not the members of congress or the executives deciding that. Thats how the Constitution Separation Of Powers Tilts towards liberty in all its respects. Now. As to your specific question, senator, one of the things ive seen in my experience in the Executive Branch and in the Judicial Branch is a natural tendency, but its a natural tendency that judges need to be aware of and then respond to
you. So heres the natural tendency, Congress Passes laws but then doesnt cant update the laws so maybe its an environmental law or maybe its some kind of law dealing with National Security. Lets take those two examples to illustrate and then an executive Branch Agency wants to do some new policy. And propose a new policy to congress, but congress doesnt pass the new policy. What often happens or too often ive seen is that the Executive Branch then relies on the old wall as a source of authority to do this new thing and they try to say, well the old law is ambiguous so we can fit this new policy into the old law as justification for doing this new thing. And ive seen this in National Security cases. Ive seen it in environment am. You see it all over the place. Its a natural phenomena. Because the Executive Branch wants to implement what it
that normally isnt an issue during Supreme Court hearings. You testified before this committee in both 2004 and 2006 as part of your nomination to the d. C. Circuit court. Then you were nice enough to come by my office and chat with me last month. I asked you if you changed anything in your prior testimony and you said no. Is that still your position . It is, senator. I told the truth. I was not read into the programs. Im not asking what you did. Im asking you if you would change anything id like to explain if i can. I will give you a chance, i will ask you a couple questions. Go ahead. I want to explain that at the last hearing if 2006, in particular, you were concerned understandably because there had been two just terrible nominees
who had been involved in the legal memos in the legal discussions around crafting the Enhanced Interrogation Techniques and protection policies. You were concerned whether i also was involved in that. And i made clear in response to those questions that i was not read into that program. That was 100 accurate. Its still accurate today. I think senator feinsteins report in the office of professional ethics said i was not involved. There were two judicial nominees. I want to go into that a little bit. I dont want to go over my time as the appreciating senator did. Senator, i want to be clear, i want to reassure you. I will go into it and give you a chance to speak more. Without im not going to take time away from you. I want to explain something. I said yesterday that if a question is asked within the 30
minutes, that he can finish the question and it can be answered. So i he did not go over his time. Sorry. I did not mean to hit a sensitive area. Let me ask you this, between 2001, im new here, between 2001 and 2003, two republican staffers on this Committee Gregogre regularly hacked into Computer Files of six senators, including mine. These republican staffers stole 4,670 files. They used them to assist in getting President Bushs most controversial just official nominees confirmed. Now, the theft by these republican staffers became public in late 2003 when the Wall Street Journal happened
you testified, and you testified repeatedly, that you had never received any stolen materials, you knew nothing about it to the public. You testified that if you had suspected anything untoward you would have reported it to the white House Counsel, or would have raised it with Senator Hatch, especially as mr. Miranda had worked for him. At the time we left it there. We didnt know any better. Today, with the very limited amount of your white house record that has been provided to this committee and it is limited, for the first time we have beenably learn aboable to about your relationship with mr. Miranda and your knowledge of these events. So my question is this, did mr. Miranda ever provide you with highly specific information regarding what i or other Democratic Senators were planning on asking certain
judicial nominees . Senator, let my contextualize, let me see what you are putting up here. That question that, whats up there is 100 accurate. Thats my memory. Okay. So let me ask you this, thats never knew or suspected, true. Never suspected anything untoward, true. And i suspected had i suspected something untoward i would have talked to judge govenz or Senator Hatch. Thats all 100 true. Thats what i already said. But did mr. Miranda ever provide you with highly specific information regarding what i or other Democratic Senators were planning in the future to ask certain judicial nominees . Well, one of the things we
would do as a white house is on judicial nominations, im coming to your answer, i will explain, to meet up here this happens on both times all the time with teams up here about okay the judicial nominees are coming up, how are we going to get them through . Heres a hearing coming up. During those meetings, of course, it would be discussed, well, i think heres what Senator Leahy will be interested in. Its very common, im sure in president Obamas Administration within they had similar meetings, they would have meetings and say, i think this is what senator graham will be interested in. Thats what you do in meetings with so highly specific, would i think,i im not sure what you a getting at i have been here over 40 years, i know what republican and Democratic Administration is
doing preparing. Im not asking about that. Im asking you why before this did mr. Miranda send you an email asking you on july 19ing, 2002, asking you and another bush official why the leahy people were looking into financial ties between two special Interest Groups and pursuant to a particular controversial nominee to the fifth Second Quarter . You would handle that nomination as you know as a judge, you had received a lot of contributions. Did mr. Miranda send you an email asking you why the leahy people were looking into her pry natural ties . Is that what this email is . Im just asking . Can i take a minute to read
nit. Of course. This is four days before the hearing on july 23rd. Did i send any of the emails on this chain . I dont think so. Im ccd or in any event, if he said why are the leahy people looking into this from manny miranda, i dont have a specific recollection of any of this. It would have not been unusual for and this happens all the time i think the leahy people are looking into this the hatch people are looking at that, i think. You say all the time. Two days before the hearing, he told you that the democrats were passing around a related 60 minutes story. He said his intel, television, suggests that leahy will focus on all things money. Well, that appears to come from a stolen email to me, stolen by the republican staff member sent to me the night before and then given to you the next morning. Were you aware that you were getting from mr. Miranda stolen emails . Not at all, senator. It was a part of what appeared to be standard discussion about its common, senator, for the white house, it would be common to hear from our alleged affairs
team. This is, in fact, in this process. Its common to hear. This is what senator x is interested in. This is what in y is focusing is it common to have copies of a private email sent to a particular senator . Copies of a private email sent to a particular center . Yes. Wouldnt that just out at you . What are you referring to in. Mr. Miranda is telling you about emails sent to me the night before, there would be no way that he would even have that unless he stole it. Did that raise any question in your mind . Did he refer to that email in this is this. Yes. Where is that, senator . Ill let you see it. Im not seeing where you are im not sheing what you referring to. Yeah, its not clear. Why dont take one that you do have . You do have this information from mr. Miranda and the very limited amount of material that the republicans are allowing us to see of your information about you, that at least did come through. But in journal 2003, let me go to something very specific, mr. Miranda afforded you a letter from me and judiciary democrats to then majority leader tom daschle. The letter was clearly a draft, it had typos and it wasnt signed. Somebody eventually, we never put it out, somebody ep ventually leaked it in this instance to fox news, im not sure who, i could guess. It was a private letter. At the time i was shocked it existed, it had been leaked. But heres the thing, you had the full text of my letter in your inbox before anything had been said about it publicly. Did you find it at all unusual to receive a draft letter from Democratic Senators to each other before any mention of it was made public . Well the only thing i said on the email exchange if im looking at it correctly, senator, who signed this is this which would imply that i thought it was a signed letter. It was sent to you. Were you surprised to get it . Its obviously a draft. Its got typos and everything else, were you surprised a draft letter Second Quarter lated among democrats ended up in your inbox . By mr. Miranda in. I think the premise of your question is not accurately describing my apparent
recollection or understanding at the time because i wouldnt have said who signed this if it was, if i thought it was a draft. My email says who signed this . Sow den realize what you had was a stolen letter signed by me that you had a letter that had not been sent to anybody fought made by the public in. All i see is a letter that says who signed this . Thats all i see. Let me ask you some more. So much of this came from mr. Miranda, who was a republican staffer, who what was as we now know stealing things. Did he ever ask to immediate privately with you in an offsite location other than somewhere at the white house or capitol hill . I think sometimes, senator,
that the meetings with Senate Staffers and white house and justice departments im asking you about one particular one with mr. Miranda. Yes, sometimes, usually it would be at the white house or the senate. I think sometimes wed meet or doj, but sometimes it could be somewhere else. Did he ask to meet with you privately to give you information about Senator Biden and senator feinstein . Im not remembering anything specific, but thats certainly possible. Again, senator, i just want to be clear here, because its very common when are you in judicial Selection Process to determine what are all senators interested in for upcoming nominee or upcoming hearing. That is the cone of the realm. Senator x is interested if focusing on administrative law. Senator y is going to ask about
an environmental law. A senator is concerned about your past work for this client and thats very common kind of discussion. Did you ever ask, had you meet him not at the white house, not at the capitol, but at his home . I dont remember that. Okay. Did he ever ask to meet you outside of the white house or the capitol . I cant rule that out. But again that wouldnt have been typical. Did he ever hand you material separately from what would be emailed back and forth . Im not remembering, if you are referring to something in particular, i could answer that. Let me ask you this did you ever receive information via mr. Miranda, Information Marked Confidential informs you that my staff was sharing with other
democrat democrats . I dont know the answer to that, senator. Again, its not always the case, at least my understanding, that the people on for example your staff and Senator Hatchs staff were necessarily working at odds. It seemed like a lot of times the staff was cooperating at times, not at other times, obviously, but at times about just dish nominations. So it wouldnt have raised anything in particular in my mind if we learned, oh, Senator Leahy is concerned about this. Did my staff ever send you confidential material from Senator Hatch that was stolen from his emails . Well, not the last part. But the i certainly did talk to your staff working on the airline bill on the september 20, 2001 airline bill. I did remember being here all
night one night with your staff. Im sure we did talk about what other senators thought. That was the airline bill where as i think you recall Speaker Hastert was involved and we were out there with the l b team. With that i worked hard with your staff. It struck me as not uncommon at all to be talking with your team what both sides think. It doesnt strike me as it was armed camps. No, and oftentimes it was not. Here you are getting obviously very private democratic emails. You werent concerned how mr. Miranda got them . Im sure im not sure about your premise. Were you at all concerned where mr. Miranda got some of the material he was showing you . I dont recall that. But the premise of your last question, i wanted to step back to that, im not sure i agree
with the prem es. I want to say, you saw something marked confidential, wouldnt you assume thats not something shared back and forth . Unless it was shared. This is the thing, if the staffer says heres what were sending to you all should be aware of this we will be opposed to this judicial nominee, just to be clear, it seemed to me sometimes there were judicial nominees you were very a posed to, sometimes you were supportive of. Sometimes in between and there would be messages passed back and forth. You were transparent, in other words, when you had problems with nominees, i recall transparency, when you were supportive, you were at the may 9th event at the white house the president announced his first court of nominee, you were
supportive of many of them. As you know i voted for lot of republican nominees, both the Supreme Court and the district course. What i opposed with the judge when i was raising very questions about funding getting from people that were before her court, that might have raised a red flag that i had some concerns about it. Now when you work at the white house, did anyone ever tell you they had a mole that provided secret information related to nominations . I dont recall the reference to a mole which sounds highly specific. Certainly it is common again the people behind me can probably refer to this its common i think for everyone to talk to each other at times and share
information. At least this was my experience, this is 20 years ago almost where you talk to people and the committee. You never received an email with information coming from spying on a democratic mole . Im not going to rule anything out, senator, but if i did, i wouldnt have thought that the literal meaning of that. It wouldnt have surprised you that few got an email, saying somebody is spying . Well, is there such an email, senator . I dont know. Wed have to ask the chairman what he has in his consideredtial material. But heres the, if you are referring to something particular. Heres what i know. Just stop a minute here, referenced twice in your 30 minutes, dont take this off of his time, you made reference
this, are you talking about the period of time that he was white House Counsel . That material is available to everybody. So that bit of material about him is marked Committee Confidential is now public and available . Is that what you say . If thats what the chairman say, we got a whole new series of questions. No, its not a Committee Confidential. You have access to it. Not so that i can you got 80 of the material weve gotten from the library is on the website of the judiciary committee, so the public has access to it. Proceed. I want, i want judge kavanaugh to have access is so that we can ask him these questions under oath and he can see them. So i would ask and well have another round. Id ask the chairman to look at some of these marked Committee Confidential which limits the ability of us to ask you specifically and hand you the specific emails. But i would state let me answerer that for you. Theres only one democratic senator asked for access to that, Senator Klobuchar got it. If are you interested in it, you could have been asking ever since august 25th, i believe. We have been asking to have those made public. I dont im not as interested if i see this in a closed room where i cant talk about it. I want judge kavanaugh to see the emails which came from mr. Miranda and give us the citation of the document, well get them for you. That testimony up there is true. 100 100 . Can somebody read it . We cant see it, right . Of course, it would be helpful if we have the National Archives time to complete their review. I want to reassure you, senator, you asking important questions. I want to reassure you what you have up on the board is 100 accurate. Can somebody move it so we can see it here . I am concerned because there is evidence that mr. Miranda provided you materials that were stolen from me. And that would critic your prcot your prior testimony. We are going into nonpublic ones you had reason to believe materials were obtained inappropriately at the time. Mr. Chairman, there are at least six documents that you consider Committee Confidential that are
directly related to this just like the three documents i shared that are already public, these other six contain no personal information, no president ial records, restrictive material. There is simply no reason they can be made public. I hope they will be this next round. It is difficult when to ask a question i have to ask the republicans, will you allow me to ask the question . I certainly never did that when i was chairman. Now i had asked you in 2006 whether you seen any documents relating to President Bushs warrantless wiretapping program or whether you heard anything about it. You acted, you heard about it with the rest of us in December 2005 with the New York Times reported it. I know its been we feel years, so heres a video of your sworn testimony. Testimony. It should be on the tv screens. The documents relating to the president s Nsa Warrantless Wiretapping program . Senator, i learned of that program when there was a new york sometimestimes story that the wire i think on a thursday night in middecember of last year. You had not seen anything or had you heard anything prior to the New York Times article . No. Nothing at all. Nothing at all. All. Nothing at all. Mr. Chairman, can i can i again, dont take this time away from him. Now, as far as i know, in 15 hearings, so im going to read something in 15 minutes, pre
face it with this. As far as i know in 15 hearings that i have been involved in of Supreme Court justices, there has never been such a video shown. So since this is precedential, i want to read this. The use of a video at a confirmation is highly irregular, but i see no reason why my colleagues cant use a video provided by the nominee. In response to the senate questionnaire. I have been assured this video is from judge kavanaughs sum makes to the committee, based on this assurance, weve allowed this video to be shoevenlt bu i shown. But i want to emphasize it should be used fairly and not in a way that depriefbs it of relevant condition text. This is kent with requirements in federal court. Thats why i will insist judge kavanaugh had the opportunity before he answers this question to request if any additional video be played, if it provided
appropriate context. So judge kavanaugh, i would ask you, do you believe more context is needed to be able to address the question . Well, i dont think ive heard the question yet, ill let you know when i hear the question. Let me ask you this. Ill repeat the question as before. You said you heard about this with the rest of us. In december of 2005. You said on the air that you had no knowledge of anything related to this until the New York Times article. Now we have a declassified Inspector General report that on september 17th, which is before the, several months before the New York Times article. John showed you a under surveillance of the white house that it informed the legal under
pinks of the nsa warrant wireless tapping program. When you were in the white house in 2001, did you ever work with John Hugh On The Constitutional Implicationsi of a warrantless program . Were talking about a lot of Different Things here. Warrantless under Surveillance Program. Thats talking about a lot of Different Things. So that what you were asking right there was the specific, what President Bush called the terror under Surveillance Program. That was his name for it. Which is a warrantless under Surveillance Program. Along with many others. And thats, you were asking me about the terrorist under Surveillance Program tsp i think he called it. That sort of was broken. That testimony is 100 accurate. That story was broken in the New York Times. I had not been read into that program and when it came into the New York Times, i actually still remember my exact reaction when i read that story. And then the president that saturday i believe did a live radio address to explain to the country what that program was about. There was a huge controversy and so etch was then working on getting the speech together. You asked me filearned about it before then. I said no, thats accurate. Okay. When you were in the white house, did you ever work with john hugh on the constitutional implication of any warrantless under Surveillance Program . Well, i cant rule that right in the wake of september 11th, it was all hands on deck on all fronts and then we were farming out assignments, but we were all involved, On September 12th when we came in, lets back up. September 12th when we came into the white house, it was, you know, we had to work on everything. So then over time, people figured out what issues they were going to work on. The airline bill that i was up
here on September 20th when President Bush spoke to congress that night as recall. After that we were in the meeting room together you and i and others working on the airline bill. There were other things going on the patriot act was going on. I was involved in all of those discussions, but what i want to know, did you ever raise questions about warrantless under surveillance . I cant rule anything out leak that. There was so much going on in the wake of september 11th, senator, as you recall up here, too. But in the white house, in particular and in the counsels office in particular, we had eight lawyers in there, eight or nine as i recall. There were so many issues to consider for the president and for the legal team and those issues, leak i said, for problem, every day for the next seven years was september 12th, 2001. And for the legal team. There was a lot of us. Yes. I sent a letter to you along with Senators Feinstein and durbin august 16th of this year asking to make documents related to this issue public. Without them being public, its not fair to me, its not fair to judge kavanaugh, that i cant have the actual documents, which i think would refresh his memory. And i would ask again, you might look at that before my next term, can we make those public . You tell us what documents you want and ill make them available to you, but i cant say that they can be made public. Just as i said last year during
justice gorsuchs confirmation, i put a process in place that will allow my colleagues to obtain the public release of Confidential Documentles for use during the hearing. All i ask is my colleagues identify the documents they intended to use and i would work to get the department of justice and former President Bush to agree waive restrictions on the documents. Senator feinstein secured the release of 19 documents last year under this process. Senator klobuchar secured the release of four do you means this year. If my colleagues truly believe other confidential documents should have been made public, they neff told me about that. So let us know what you want and then you can go ahead and well get them for you. I want the same thing i requested in august 16th, because its directly relevant to judge kavanaughs testimony, directly relevant to his the
questions i have been asking here, directly relevant to his own emails with john hugh. So before my next term, we can take a look at that. Well, well get them for you before your next term. You said you agreed the president absolute unfit Fettered Check to pardon any federal law. Did the president issue a pardon in exchange for a bribe . Yes or no . Senator, i think that question has been litigated before and i dont want to comment about any pardon, i dont want to scope about, there are a couple things involved in that question. One is whats the scope, the
effect of the pardon . And the other question is can you be separately charged with a bribery crime, both the briber and bribee. Those are two separate questions you want to keep separate in thinking of a hypothetical. In that mr. Chairman i got interrupted an awful lot. I just want to finish this. But i made sure that if the teamer didnt treat, give him another minute. Thank you. God bless you, ill be forever thank you. President trump claims he has an absolute right to pardon, himself, does he . The question ofof self pardos is something ive never analyzed. Its a question ive never written about. Its, therefore a hypothetical question i cant begin to answer in this context as a sitting judge and a nominee to the Supreme Court. The other half of that is the obvious one, does the president have the ability to pardon somebody in exchange for a promise from that person that they wouldnt testify against him . Senator, im not going to answer hypothetical questions of that sort. There is a good reason for it. When judges dont, when we decide, we have briefs and arguments of the parties. We have a record. We have an appendix with all the information. We have amicus briefs. I never side thing alone, im in a panel of three. If confirmed to the Supreme Court id be on a team of in en. Thank you, mr. Chairman, i hope for the sake of the country that remains a hypothetical question. Sense i gave you an extra
minute. I will not let you reserve the 25 seconds. Im done. Senator graham. Thank you very much. J ul the 21st, 1993. I certainly dont want you to have to layout a test heret this abstract, which might determine what your vote would be in a cass have you yet to see that may welcome before the Supreme Court. That was wise counsel by Senator Leahy and against birds confirmation. Very directly. Did you ever knowingly participating in stealing anything from Senator Leahy or any other senator . No. Did you ever know that you were dealing with anything that was stolen property . No. As to the terrorist under Surveillance Program, did you help korea it this program. No. Did you give legal advice about it . No. Were referring to the same program . Yes, the one the article was about. So a bit of a kind of a runthrough here. You will probably be get votes 54 to investigation, 57, i dont know what the number will be. There are 11 undecided senators before the hearing. Three of them republicans, i like your chance, and eight of them are democrat. You are in five of five or six of them. I want your family to know in other times someone leak you would probably get 90 votes. I want your daughters to know that what happened yesterday is unique to the times that we live in. And i want to give you a chance to say some things to the people who have attended this hearing. I think there is a father of a Parkland Student who was killed
and i think there is a mother of a child who has got Terrible Health care problems and there are many other people here with personal situations. What would you like to say to them, if anything, about your job as a Supreme Court justice . Senator, i understand the real world effects of our decisions. In my job as a judge for the last 12 years, ive gone out of my way in my opinions and in obviously arguments to make clear to everyone before me, that i understand the session, the sessions, the facts, for example of saying to senator feinstein earlier in the heller 2 case about the factsin d. C. And facts in d. C. I want to reassure everyone that i base mid decision on the law
but i do so with an awareness of the facts and an awareness of the real world consequences and i have not lived in a bubble and i understand how passionately people feel about particular issues and i understand how personally people are affected by issues. And i understand the difficulties that people have in america. I understand, for example, the situation of Homeless People, because i see them on a regular basis when im serving meals. So tell me about. That what interaction do you have with Homeless People . In there senator, i regularly seve meals at Catholic Charities with father john ensler, the head of Catholic Charities. I have known him sense i wal was
an altar boy what you learn, i said matthew 25, i try to follow the lesson of serving the least fortunate among us, when i was hungry, you gave me food, thirsty, you gave me drink, stranger, ewell come me naked and cared for me in prison and you visited me. Six groups that thats not exclusive, its a good place to start with your charitable works in your private time. Skrodescribe the difference between Brett Kavanaugh the man and Gret Kavanaugh the judge. Well, as a man im trying to do what i can in community service, as a dad a coach a volunteer a teacher, as a husband and serving meals to the homeless the one thing. Senator, you know were all gods children, were all equal. People have gotten there because maybe they have a mental
illness. Abe they have a terrible family situation. Maybe they didnt have anyone to care for them. Maybe they lost a job and have no family. But every person you serve a meal or better, frankly, because theyve what theyve had to go through on a daily basis just to get a meal, and you talk to them. Thats the other thing. When you walk down the street, you see people i understand this, i dont want to sound better than someone describing this, but you dont necessarily look and you dont say, hows it going . But when you serve meals to them, and you talk to people that are homeless and they are just as human and just as good of people as all of us, and were all part of one community and so i think about that and, you know, i dont want to sound, like i can always do more and
more, i know i fall short but father john has been a big influence on that and jesuit academy, on the board, a little different situation. Boys from lowincome families, tuitionfree schools, 7 30 a. M. To 7 00 schools. I started tutoring to do more tutoring and just be involved more and judging is important but i wanted to be more directly involved in the community. They have tutoring. You do all your homework there. A situation you dont want to go home. You have three meals there and do your homework there and i help them do their homework. And theyre great kids and you make an effect on their lives. The teachers and coaches throughout america, they change lives. For me to be able to participate, know, you cant
change everything at once, but just changing one life, one meal one day at the shelter or one kid that remembers something you said in a tutoring program, you know, if we all did that more and i fall short, too, i know. And i want to do more on that front, but you can make a big difference in peoples lives. I just bring that into the judging. I think my judge based on the law, but how does that affect me as a judge . I think first of all i, standing in the shoes of others. We could all be that homeless person. We could all be that kid who needs more, a more structured educational environment and one of the things i was taught by my mom but also i remember chris able, my Sixth Grade English Teacher and religion teacher and Football Coach and baseball coach, one of his and he drove me to school, one of his and hes now on the board
of Judges Academy with me but one of his lessons since kill a mockingboard kill in the shoes of others. I still have that in my chambers. The same copy. Is it fair to say that your job as a judge is not so much stand in the shoes of somebody youre sympathetic to but stand in the shoes of the law . In the shoes of the law with awareness of the impact of your decisions. Thats the critical distinction. You cant be unaware. When you write an opinion, hows it going to affect people . And understand, try to explain. I think you know, its explaining. Its such an important feature. Then when people come into the courtroom and how you treat litigants. Were all familiar, weve all been in courtrooms where the judge is acting a little too full of being a judge, and to well, weve all been there. I try not to do that. I cant say im perfect but i try to make sure the litigants understand that i get. Whether its a criminal defendant case. We had a pro se case. Pro se case where a litigant comes in argues pro se in our court which rarely happens in our court where the pro se actually argues and it was a guy who said he had been called the n word by a supervisor, and hes arguing pro se and questions whether a single instance of the n word constitutes harassment under the civil rights laws, and i wrote a separate opinion explaining, yes, a single instance of the n word does constitute a racially hostile Work Environment and i explained in doing that, the history of racism in this country and that, and how that word, no other word in the english language so powerfully or instantly calls to mind our countrys long and
brutal struggle against racism i wrote in that opinion and cited to kill a mock pg bird inmocki opinion. But i understand stood his situation and decided a case based on the law, but i understood with the pro se l litiga litigant. The point being have you ever made a legal decision that personally was upsetting to you. Im sure i have and thats what Justice Kennedy talked about in texas versus johnson. That case, in case didnt know i referred to, the flag burning case. And Justice Kennedy is in the majority with justice scalia, brannen and Justice Marshall and says that a law against flag burning is unconstitutional under the First Amendment and that tore Justice Kennedy,
really bothered him because hes such a patriot but still ruled the way he did, because he read the First Amendment to compel that result and thats why he wrote that great concurrence in that case and that concurrence is such a great model for judging, a great model of independence and a great model to your point, senator graham of, we follow the law, but were aware, were aware, and a better judge if youre aware. Well, i just want to say this to my colleagues. Everything he said i think has been verified by the people who know him the best. I cant say ive read 307 of your opinions. I can tell you without hesitation i have not. I did not read sotomayors opinions or kagans writings but what i chose to do look at the people who knew him the best and i think bob bennett, who defended president clinton during impeachment, i know him very well, said that brett is a judges judge. Smoun doing his absolute best to follow the law rather than his policy preferences. Brett is an allstar in professional and personal life. Ive yet to find anybody that i find credible, really anybody at all, that was saying you were unfair to litigants. Yet to find a colleague that thought you were a politician in a robe. But you are a republican. Is that true . I registered was a yeah. Im glad to hear you say that and it makes a lot of sense given who you work for. I havent well ill let you finish your question. You worked for a lot of republicans. Like the president , who is a republican. Yes. President bush. I worked for, yes. So i remember ill tell
you what i remember when she leaves. So i asked elena kagan about a statement that greg craig made. Do you know greg craig by any chance . Ive met him. I havent seen him in many years. He was the one of the defenders of president clinton during the itch Peampeachment H and somewhere in here ive got greg craigs statement about kagan. No. Im looking for the greg craig statement. Here we go. Heres what kagan was a progressive in the mold of obama himself. Alana kagan is clearly a legal progressive and comes from the Progressive Side of the spectrum according to ronald klein, the first was greg craig, and i had
an exchange with Justice Kagan when she was the nominee. Im not trying to trick you. I dont have anything on brick. He said on may 16th youre a largely progressive in the mold of obama himself. Do you agree with that . Ms. Kagan, senator graham, you know in terms of my political views ive been a democrat all of my life. I worked for two democrat president s, and that is what my political views are. Then i asked, would you consider your political views progressive . Ms. Kagan. My political views are generally progressive. Which is true. I really appreciate what she said, because i expect President Obama to go to someone like elena kagan. Who is progressive. Shares his general view of judging. And happened to be highly
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