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capricious, ash tear or made sense. the supreme court in boumedin struck it down saying it was not an adequate substitute for habeas. >> that's correct, senator. >> your role was to find out a way to engage congress on the detainee treatment because it was your view that congress, being involved, would strengthen the president's hand? >> as a lawyer? >> yes. >> i was not a policymaker but i did advise. >> as a lawyer. >> as did many others. there were very other many fine lawyers, too, senator, who advised the administration that engaging congress would be a good idea, because we had read our youngstown and our justice jackson. >> any lawyer i think who understands this area of the law would suggest the president is stronger when he has congressional support. the signing statement. is it fair to say there was a conflict between the vice president's office and other parts of the bush administration about what the signing statement
should say or look like? >> that's my recollection, and that's about all i can recall. >> i remember it very well because vice president cheney's signing statement was going to be we have an inherent authority to do whatever we think we need to do and there were a lot of other people saying no, you don't have the authority just to set aside a law. you have to have a reason to object to it. so i just want the public to understand that, when it comes to this man, i've seen him in action, in very complicated emotional matters, where we had one group of people who could give a damn about the terrorist and other people who wanted to criminalize what i thought was a real world fight and we tried to find thatide ound, and in a 5-4 decision, t supreme court struck down my proposal, and we fixed it later with a
huge bipartisan vote, so that every enemy combatant today has a habeas proceeding where the government has to prove you're an enemy combatant and if they reach that conclusion you can be held under the law of war as long as you're a threat to our nation. is that a fair summary of where we're at? >> that's my understanding, senator. along the way we, your legislation did prevail in the d.c. circuit and the supreme court. of course it was a close call, it was 5-4 as i recall. >> that proves that five people can be wrong. whul i disagree i certainly respect the court's decision. >> you're not going to get me to comment on that neither. >> not even going to try. the bottom line here is there will be more legislation coming regarding the role of the government and gathering information, but from sort of a civics point of view, which senator sass is going to take
you through, there's a difference between the law of war and domestic criminal law. do you agree with that? >> yes, senator. >> that a common criminal, the goal of the law is to prosecute a crime that one individual or group committed against another individual or groups. that's correct? >> that's right. >> the law of war is about winning the war? >> well, senator, there are -- >> how you fight the war -- >> there are as you know, rules about that, too. >> right. >> laws about that. >> yes and we're fighting an enemy who has no rules that would do anything, and i've been in the camp i don't want to be like them, i this i that's their weakness and the strongest thing we could do is stand up for a process that stood the test of time, which is intelligence gathering and a humane way, because they would cut our heads off doesn't make us weak because 'tut the heads off. it actually mak us stronger over the arc of time, so that's my commercial about that. so there will be more litigat n
litigation, and there nare no bd guys or girls when it comes to challenging precedent, do you agree people have a right to do that. >> to challenge precedent? >> yes. >> every person is allowed to come to court to bring whatever claim they have. that's how our system works. >> that's how brown versus board of education came about. >> exactly right. >> let's talk about roe v. wade. what is the holding of roe v. wade, in 30 seconds? [ laughter ] >> the holding of roe versus wade in 30 seconds, senator, is that a woman has a right to an abortion. it developed a trimester scheme in roe that specified when the state interests and when the women's interests tend to prevail. >> okay. so let me just break it down. the court said that there is a right to privacy, that the government can't interfere with that right in the first trimester. beyond the first trimester, the
government has more interest as the baby develops, is that fair to say? >> that was the scheme set forth. >> i think medical viability was the test that the court used. >> well, that's the test that the court came around and applied in casey, in 1992. >> okay. >> and viability became more of the touchstone rather than a rigid -- >> is it fair to say that medical viability 1992 may be different than it is in 2022 medically? >> senator, i'm not a scientist or a doctor. >> i would suggest that medical viability may change as science progresses, so you may have people coming in and saying in light of scientific medical changes, let's look at when medical viability occurs. that's one example of litigation that may come before you. i have legislation that says that 20 weeks, the unborn child is able to feel excruciating pain and the theory of the
legislation is that the state has a compelling interest to protect an unborn child from excruciating pain, which is caused by an abortion. i'm not asking you to agree with my legislation. i am saying that i am developing, we're one of seven nations that allow wholesale on demand unlimited abortion at 20 weeks, the fifth month of pregnancy. i'd like to get out of that club, but we're going to ha a debate in this body, in the house, about whether or not we want to change the law to give an unborn child protection against excruciating pain at 20 weeks, because you can, the standard medically is that if you operate on an unborn child at 20 weeks the medical protocols are such that you have to provide anesthesia because you don't want to hurt the child in the process of trying to save the child. so medical practice is such when you operate on an unborn child at 20 weeks, which you can do, you have to apply anesthesia and
my theory is let's look at it the other way, should you allow an abortion on demand of a child that can feel excruciating pain, is that what we want to be as a nation? does that run afoul of roe v. wade. i want to make the argument there is a compelling state interest at that stage of the pregnancy to protect the child against death that is going to be excruciatingly painful. you don't have to say a word. i'm just letting everybody know that if this legislation passes, it will be challenged before you, and you will have to look at a new theory of how the state could protect the unborn, and here's what i think. you will read the briefs, look at the facts and make a decision. am i fair to conclude that? >> senator, i can promise you no more than that and i guarantee you no less than that, in every single case that comes before me no matter what the subject matter. >> this is a situation that may develop over time because 70% of
the american people side with me on the idea that at 0 weeks we should not be in the club of seven nations that allow abortion on demand because that's in the fifth month and that doesn't make us a better nation. there will be people on the other side saying no, that's an emotion of roe and it will go to the court, maybe if it ever passes here and the only reason i mention this is that everybody who wants to challenge whatever in court deserves a person like you. person like you, no matter what pressures are plied to you, will say over and over again, i want to hear what both sides have to say, i want to read their legal arguments, look at the facts and i will decide. that to me is reassuring and that's exactly the same answer i got from sotomayor and kagan. no more, no less, and we can talk forever about what you may or may not do.
if you do anything different than that, i think you'd be unworthy of the job. now, about what's going on in the country with president trump whether you like him or you don't he is president, but you have said several times that he is not above the law. is that correct? >> yes, senator. >> you told senator leahy if there was a law passed a muslim could not serve in the military you believe based on current law that would be an illegal act. >> senator, yes, i see that having all sorts of constitutional problems under current law. >> so if we have laws on the book that prevent waterboarding, do you agree with me that the detainee treatment act prevents waterboarding? >> yes, senator, that's my recollection of it firmly. >> so in case president trump is
didn't agree with president obama, but i understood why he picked sotomayor and kagan, and i hope you can understand why president trump picked neil gorsuch, and hope you'll be happy with that, because i am. >> thank you, senator. >> we will recess until 12:45. >> all right, there you heard it, with a joke about who else president trump might have chosen, whether or not it would be a television judge or a tv figure. nonetheless, he has chosen neil gorsuch of the state of colorado, who has gotten along very well during the morning session. remember the ground rules here. every senator gets 30 minutes of questioning, so this is going to take hours more to spool out. here we are 12:12 eastern time, in what is normally andrea mitchell's dayside shift.
we'll be getting to andrea, she's among our guests standing by to talk to us about what we've witnessed. ari melber from the legal side of things has been watching along with us. ari, i think the expression in english is "it's tough to lay a glove on this guy." >> i didn't see a single glove laid on him. he performed himself admirably, calmly at almost all times and with detail, but never much candor about his views, which many experts would say he's not supposed to. anyone who has been watching your coverage, brian, over this morning would know this was a highly substantive discussion. we've talked a lot about what's abnormal in washington these days and the fbi unusual hearing yesterday. this was a normal and even proper vetting of a potential supreme court nominee. the issues i count that were discussed, the travel ban, guns, torture, abortion, federal power, money in politics, guantanamo, obamacare, and a broader sort of roving discussion of judicial
if the senate in fact does vote on neil gorsuch and he is confirmed as mitch mcconnell pledged to do by april 7th, chuck grassley, the chairman of the committee says maybe april 3rd, then gorsuch would be on the court in time to hear the last couple of weeks of oral argument at the end of april, but he could also be there theoretically in time to hear an appeal of the president's executive order on immigration, if it gets to the supreme court. one of the hawaii cases, one of the two cases that, in which judges have said that the president's order is unconstitutional is from hawaii. the chief lawyer who argued that case is neil catchall, a former chief solicitor in the obama administration, solicitor general's office. he's also the same one who introduced and glowingly praised neil gorsuch yesterday. so it's a small town in that sense. >> pete williams in our
washington bureau, watching all of these various backs and forths with us, the confirmation hearings of judge gorsuch. we want to bring back jennifer palmie palmieri, former communications director for hillary clinton, who has been very patient waiting to come back on the air with us. jennifer, you wanted to talk about something that is actually a very generous and magnanimous view that you hold about the campaign that you lost to, the trump presidential campaign, specifically the way they took on judicial nominations. >> yes, i do. early on in the hearing, it was brute up that judge gorsuch was on a list of potential nominees that the trump campaign put out over the summer, examples of who he would appoint to the supreme court and i very much remember that day, because we knew and the clinton campaign just how potent an issue the supreme
court is for a conservative for evangelical voters and trump promised judge gorsuch he's never spoke within donald trump about abortion, but trump promised many times that he would only appoint somebody who would overturn roe v. wade and this issue is so important, i think it probably put him over the top and pennsylvania, wisconsin, michigan, states that clinton narrowly lost that passion is enough to put it over the top. i remember looking at polls after that letter came out, two times, with the list of judges that he would appoint and again trump promised to only appoint somebody who would overtun roe v. wade and we saw republicans come home the first time it didn't sustain and over the summer and he lost
evangelical voters. in the end we saw that start to close after that third debate. we really think it was about the supreme court. i think it's more important to his base that he gets judge gorsuch confirmed because he believes he will overturn roe v. wade, a vote to do so, than it is to get health care done. that's how strongly people feel about it. >> jen, that's interesting. did you think that is something they owned? was there a reciprocal move you could have made, even if hindsight, or did you just think this was kind of their lane and territory they had cleared out? >> yes. >> and there was nothing you could do to match it? >> you know, we had the same passion on our side, right? we had the same passion of people who want to, that are concerned about appointing a justice that would do anything that would undernine roe v. wade so it's not as if you don't see the passion for us, but i think on our side it was the combination particularly in those states, michigan, wisconsin and pennsylvania to
have a lot of catholic voters, a lot of evangelical voters swle. combination of that plus what happened with the comey letter, what happened with wikileaks and the emails that ate up so much of our press time, those factors combined ultimately cost us this election, but i don't think that people appreciate just how important it is to his standing that he get this confirmation through with his own supporters, and also that i take judge gorsuch at his word he didn't talk to trump about this view about his views about roe v. wade but as my twitter feed during the hearing has shown, and certainly the talking points are being sent to me by democrats on the hill, reminding everyone the heritage foundation signed off on this, on judge gorsuch as well as part of that letter. no one would do that if they didn't think they could count on his views to be where they want them to be when it comes to women's reproductive rights. >> so far certainly in a television era he has been
centralcasting federal judge candidate for the supreme court. jennifer palmieri former xhoun ki communications director for hillary clinton thank you for your patience and joining us on the air. we'll fit a break in. we have many, many more guests waiting to share with us their opinion of how this morning session went, day two, but entering the heart of the order, where the confirmation hearing for judge neil gorsuch is concerned. right back after this. >> he didn't ask you to overall roe v. wade? >> no, sir. >> what would you have done if he had asked? >> senator, i would have walked out the door. it's not what judges do. okay, i don't do it at that end of pennsylvania avenue, and they shouldn't do it at this end either, rantfully. respectfully. ffect. they also know you need to get your annual check-up. ffect.
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hearings, and lord knows at this pace what tomorrow will bring. kasie hunt was on capitol hill for the president's comings and goings and remains there, and kasie, you mentioned appropriately before the meeting that members of the house have their problems with leakage and what leakage has come out of the president's session? >> we've had a number of republicans we talked to over the course of the morning about what the president said behind closed doors. he actually did not spend the majority of his time talking about health care. he kind of ran through as he is want to do, he talked about his crowd size in louisville last night, he did tie that in to health care. if we don't get this done we're not going to have crowds like that. he ticked througthe other things and says he's done in the initial days of his administration, and he also said on health care i think somewhat critically that he thinks that many of these republicans would face primary challenges if they vote no on this legislation, that this is their historic
chance to repeal and replace obamacare to follow through on that critical campaign promise. brian there's still and one of the most important things around this visit for house leadership and for republicans is about the optics. it's about feeling like the president is taking the time to actually come up from the white house to capitol hill, doesn't happen very often, usually works the other way, and to stye them yes, this is what i am behind, because the reality is a lot of these members are going to have potential political problems if they vote in favor of this bill. that's why you're seeing in particular moderate republicans who might actually be in swing districts, if the president's approval rating is down where it is he's got all of these issues with the fbi hanging over his head, what is necessarily the reason why you would walk the political plank as tom cotton put it, over in the senate, to do this on behalf of the president or on behalf of leadership. so the reality here, this is paul ryan's bill but going to be
on president trump to close the deal here, and i think if they can't get this done on thursday, it goes to the floor and fails, i think that would be an incredible difficult moment for both the president and for the leadership here, even if they simply full back, because they know they don't have the votes, that would be a serious blow to his agenda so there's quite a bit at stake going into the end of this week, brian. >> kasie hunt up on the hill where i should specify i was talking about people leaking details of meetings. kasie, thanks. let's go to andrea mitchell who is usually on the air this hour, every day on this very network and andrea, such an interesting two-day period of hearings. >> yes. >> here we are on live coverage in our in studio inevitable game of who does he look like. we have decided gorsuch is somewhere between pete carroll and tom bergeron. yesterday we saw mr. comey playing the role of eliott ness.
is a neck-snapping transition and yet as casey reminds us, we've got real legislation coming up before this week is out in what is only the early stages still of this trump administration. >> exactly, and the comey testimony yesterday, brian, was so overwhelming in its impact. its political impact. it's going to affect health care. it's going to affect the thursday vote potentially. it's going to be now that we know there has been since july a counter intelligence investigation that could reach all the way to the white house. it involves the trump campaign, trump associates, whether or not there was collusion with the kremlin, and the relationship of this administration with moscow, which is another issue i want to get to in just a moment, and that can affect everything. so despite the i think ham-handed attempts by the white house to push back against it and te my reality the grownups on the hill in both parties know that this say very big deal and
this will not be over any time soon. it could be a cloud over this white house for months, if not years, because these counter intelligence investigations go for a long time, as comey said it's only just getting started and at the very moment when the question of the u.s. and this administration's relationship with russia is front and center, as you first reported last night on the 11th hour, we get word that the new secretary of state is not going to go to nato. this only exacerbates the very damaging meeting with chancellor merkel on friday, and how badly that went. the fact that the president was questioning germany's commitment to nato, which is front and center. she is the strongest economic and military partner we have. the fact as you also were interviewing former ambassador from uk, peter west last night and he was talking about how awkward the relationship is with britain because of the white
house pushback suggesting that false claim of a wiretap by the president against former president obama could have originated in british intelligence, not true. no apology offered or received. so therere a lot of issues here and today to return to gore sufficie, i think that this has been a slam dunk in terms of his initial q&as. you'll see some of the more intensive questioning but they have not as you put it laid a glove on him. senator feinstein and senator grassley both under some pressure, certainly the democrats under a lot of pressure because of what happened with merritt garland, and they are getting criticized by the, you know, left wing of the party for not going after him harder but they have not been able to, you know, shake this guy. he is obviously the consummate witness and a good performer in the hot seat there. what senator feinstein was
particularly going after his role in the justice department in the bush white house when the torture issues were up, because she was the chairman of senate intelligence and the sponsor of that torture report, which was so controversial, which the cia so deeply resented, and he in answer to her question said that he was on the gentler side of the advisories as to how to roll back the mccain torture guidelines, so that in his writings as a lawyer in the justice department, are very much going to be examined here by feinstein, who as you know the ranking democrat on this committee, but so far, he has not been shaken. >> andrea mitchell in washington, stand by. i want to bring in someone you and i both know and that is know ma tottenberg of npr fame and know that tottenberg fame. >> hi, guys. >> hey. how about andrea's last comment there, that this judge is the consummate witness, and ours that he is out of central
casting? >> he certainly looks the part and they haven't been able to get much out of him, but i would have to say that i think he's not a complete natural. he seems extremely practiced to me, and that isn't going to hurt him. what would hurt him is if he actually answered some of these questions. it's given the democrats a platform to go after republicans, not just about the garland nomination, but trump, the way trump put together his list, farming it out to two conservative organizations to help to make up the list for him instead of doing it himself essentially, and having his own justice department or his own advisers do it, so i don't think it's totally worthless for democrats but they don't have the votes. it's just really simple. they don't have the votes. >> nina, going back, looking at the modern era of the court, let's go as far back as say suitor or brennan or even
justice white, whose name was already invoked this morning. there have been ideologs and non-ideologs, people who have changed before our eyes organically, famously, justice brennan was, eisenhower's greatest regret as president. where do you put judge gorsuch on the spectrum of ideologues, people who have a fixed north star before arriving on the court? >> i actually don't know. if you look at his society so to speak, his mother, his friends, how he got on this list, you'd have to say he's going to be a very, very conservative judge, but he is a very well respected judge also, and it's very different to be on an appeals court where you're carrying out the law as established by the supreme court, and when you have the chance to change it. he was, as i said, a little
disingenuous in some of his answers today. for example, when he was, as andrea pointed out, when he was asked about some of the, his memoranda and the torture memo thing and he said i haven't seen that. they've been in the newspapers. clearly his aides, his handlers have that material, so it can't be that he hasn't seen that material. he also said when asked about for example campaign finance law, he said that there was a lot of room to regulate expenditures and there really, i have to say as somebody who reads these opinions, i think the supreme court has said congress cannot regulate expenditures and cannot even really define corruption, what is corruption beyond what is almost a bribe, a quit pro we could, so i think he softened what the law in fact it in order not to answer some things
directly. but he did it skillfully, and i don't know the answer to your question, brian. is he an ideologue, how much, i have no idea. >> that's probably a good thing, know ta totenburg you have by my count no reason to think senator grassley will be wrong you have six minutes to get back downstairs from the sky box into your seat in the hearing room. thank you so much. we love havingou and you were very good patient waiting for us. >> thank you. >> nina totenberg of npr. we'll be back and rejoin the course of the hearing live in and progress right after this. >> i have no difficulty ruling against or for any party base other than based on what the law and the facts in the particular case require. there's no such thing as a republican judge or a democratic judge. we just have judges. in in country. i leave all the other stuff at home.
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confirmation hearing of judge gorsuch to the supreme court. among our guests who have been so patient and waiting for all this testimony, two commercial breaks and all of our talking is former rnc chairman michael steele. mr. chairman i'd love to what you what i asked know ta totenberg. how much of an ideologue do you find judge gorsuch? >> not much. he doesn't wear it on his sleeve, one of the strengths going into this and why it's going to be as we've seen so far and probably for the remainder of the hearing so difficult for democrats to lay a glove on him. he understands where that bright line test is for a judicial nominee, in answering the types of questions that would project into the future how he would decide a case or reflect back on the past what he thinks of past jurispruden jurisprudence. so he's found that sweet spot anwearing it comfortably, if you will and i think the rest of the afternoon will be interesting to see how effective
the democrats can be at getting close to pushing some buttons with the judge. >> where real politics are concerned, michael, it would take a lot, correct? >> yes. >> to turn this man away. >> it would be. i mean, i've said for some time now, brian, this is not the hill the democrats want to have this fight on. this judicial nomination by president trump changes nothing on the court. the ideological, philosophical balance, if you will, remains the same. the real test for both parties will come in a subsequent future nomination if that should ever happen but this right now is more for democrats about merritt garland than it is about judge gorsuch and that's what animates the base of the democrats politically and puts democrats in the senate on the stick trying to figure out how do we navigate this.
>> david suitor, people change. they change organically. this is a 49-year-old father of two teenage daughters who lives in a culturally liberal part of the country in boulder, colorado. people just change. >> they do. if you notice the judges who "changed" on the court are republican nominated judges so the reality of it is, in the end of it we don't know what we're ultimately going to get with this judge, as a justice, and that we'll see probably 10, 12 years from now. >> michael steele, thank you very much. into the hearing room we go, senator kur bin of illinois starting the questioning. we'll be back during breaks. >> you weren't involved in the drafting of the mccain section of the bill on the treatment amendment. >> senator, that wouldn't fit quite with my recollection. >> please.
>> my re-election is senator mccape and senator graham wrote the legislation with input from the department of defense and the department of justice and a whole lot of others besides. and i was one voice among a great many and that in terms of when it was struck down, handon held the detainee treatment act only applied prospectively and then several years later, gosh, i want to say it was 2008 maybe the court came back around in boumedin. >> what i'm driving at is the mccain section relative to cruel inhuman and degrading treatment and i assume or i hope you've had a chance to glance at the emails that senator feinstein gave you. you said in your email, you wanted a signing statement to the effect that the view is mccain is best read as
essentially codifying existing interrogation policies. what interrogation policies did you think the mccain amendment was essentially codifying? >> senator, i haven't had a chance to look at that. sorry, i scarfed down a sandwich over the break and i'd be happy to read it, but i'm not sure what i can answer you here sitting off the top of my head. it's been, it was 12 years ago and i'm doing the best i can with my recollection. my recollection -- it >> i'm trying to get this leap from your of this email i understand over 100,000 pages of emails. >> exactly. i think the department of justice produced something like 200,000 pages of stuff. >> i will concede that point, but your lack of memory at the moment and contrast that with the mccain bill, nt that you which i supported outlawed waterboarding.
>> waterboarding was still happening and you were saying in your email i want to essentially codify existin interrogation policy. there's an inconsistency there whh we have to wait until the second round to resolve. >> i -- okay. >> okay. let me read something to you and ask you for reaction is a statement that was made about eight days ago by a congressman named steve king of iowa, and here's what he said. "you cannot rebuild your civilization with somebody else's babies. you got to keep your birth rate up and you need to teach your children your values and doing so you can grow your population, you can strengthen your culture, you can strengthen your way of life." the reaction to that statement was overwhelming. civil rights leader congressman john lewis called it racist.
the republican house speaker paul ryan said he clearly disagreed with king's comments, went on to say the speaker clearly disagrees and believes america's long history of inclusiveness is one of its great strengths. what would your reactionstateme? >> senator, i can talk about my record, and i can tell you that as a federal judge, when a defendant comes to court with an allegation that the sentencing judgents based on his ethnic iity, me an my colleagues, my colleagues and i have removed that judge from the case. i can tell you that, when an immigration lawyer fails to provide economy counsel time and time again, i've sent him to the bar for discipline. i can tell you when it comes to access to justice, i've written on this topic, i've worked on this topic for the last six
years, together with many wonderful people on the rules committee, trying to make our civil litigation system cheaper and faster, because it takes too long for people to exercise their seventh amendment liberties and i can tell you together with my colleagues, we found the level of representation of inmates on death row was unacceptable in our circuit, a whole bunch of us, i can't too much credit, tried to do something about it. i can tell you that when prisoners come to court pro se handwritten complaints and something that might be meritorious in them, a point re. >> can you describe your relationship with professor john fennis? >> sure, he was my dissertation supervisor. >> when did you first meet him? >> hmm, whenever i went to oxford, so it would have been 199 --
>> 2? >> well, it could have been 2 or 3, somewhere in there. >> and what was his relationship with you or you with him? >> he was my dissertation supervisor, and i would describe that as a relationship between teacher and student, and he was a very generous teacher, particularly generous with his red ink on my papers. i remember sitting next to the fire in his ok fordoffice, something out of "harry potter" and he always had a coal fireplace burning and sometimes whether i was being raked over the coals. he did not let an argument that i was working on go unchallenged from any direction. >> so that was over 20 years ago that you first met him? >> whatever it is, it is, yes. >> do you still have a friendship, a relationship with him? >> i, last time i saw him, gosh, when he -- i know i saw him when
he retired, and there was a party held in his honor, and i remember seeing him then and that was a couple years ago. >> did he know you were from it must have at some point come out in our conversations, i don't know. >> and do you recall saying some words of gratitude for his help in writing your book? >> he did not write my book, senator. he did not help write my book. i wrote my book and certainly expressed gratitude to my dissertation supervisor in a book that's basically my dissertation. >> i think you were quoted as saying in 2006, you thanked fennis for his "kind support through draft after draft." >> and there were a lot of drafts, senator. i mean, golly, that was a very tough degree. that was the most rigorous
academic experience of my life, and i had to pass not just him, but an internal examiner and an external examiner, and that was hard. that was hard. >> in 2011, when notre dame ran a symposium to celebte his work, yo recall your study under him and you said "it was a time when legal giants roamed among oxford spires." >> oh, yeah, yeah. >> you called him one of the great scholars. >> well, and oxford has a stable and it's part of the reason why it was such a privilege. here is a kid from colorado and i got a scholarship to go to oxford. i'd never been to england, to europe before and at oxford at that time, john fennis, joe razz, ronald dworkin, h.l.a. hart was still alive then. >> i'll read a couple of statements from professor fennis. in 2009 he wrote about england's
population, he said england's population had "largely given up bearing children at a rate consistent with their community's medium term survi l survival." he warned they were on a path to quote their own replacement as a people by other people's more or less regardless of the incomers acompassibility of psychology, culture, religion, political ideas or visions or the worth or viciousness of those ideas and ambition answer went on to say "european states in the early 21st century move into a trajectory of demographic and cultural decay, population transfer and replacement by a kind of reversed colonization." had you ever reared that before? >> nope. >> had you heard it before? >> no, not to my recollection. >> could y distinguish with what he said and what congressman steve king said? >> senator i'm not here to answer for mr. king or professor fennis. >> i'm talking about your reaction to these things. do you feel that what professor fennis wrote about purity of
culture and such is something that we should condemn or congratula congratulate? >> senator, before i expressed any view on that i'd want to read it and i'd want to read it from brieginning to end, not an excerpt and senator, i've had a lot of professors. i've been blessed with some wonderful professors, and i didn't agree with everything they said, and i wouldn't expect them to agree with everything i've said. >> let me ask you this specific one. it was 1993, and you were at oxford and this is when i believe you first met this professor. professor fennis was tapped by the then colorado solicitor general timothy timkovich to help defend a 1992 state constitutional amendment that broadly restricted the state from protecting gay, lesbian and bisexual people from discrimination. during the course of the deposition, which you gave in support of that effort, fennis argued that anti-pathy toward
lgbt people, specifically toward gay sex was rooted not just in religious tradition, western law, and society at large. he referred to homosexuality as beastality, in the course of this as well. were you aware of that? >> senator, i know he testified in the case. i can't say sitting here i recall specifics of his testimony or that he gav a deposition >> i guess the reason i'm raising this is, this is a man who apparently had an impact on your life, certainly your academic life, and i'm trying to figure out where we can parse his views from your views, what impact he had on you as a student, what impact he has on you today with his views. >> well i guess, senator, i think the best evidence is what i've written. i've written over, gosh, written or joined over 6 million words as a federal appellate judge. i've written a couple of books. i've been a lawyer and a judge
for 25 or 30 years. that's my record, and i guess i'd ask you to respectfully to look at my credentials and my record and some of the examples i've given you are from my record about the capital habeas work, about the access to justice. i've spoken about overcriminalization publicly. those are things i've done, senator. >> and what about lgbtq individuals? >> well, senator, there are, what about them? >> the point i made is -- >> they're people. and you know -- >> of course but what you said earlier was that you have a record of speaking out, standing up for those minorities who you believe are not being treated fairly. can you point to statements or cases you've ruled on relative to that class? >> senator, i've tried to treat each case and each person as a person, not a this kind of person, not a that kind of
person, a person, equal justice under law. it is a radical promise in the history of mankind. >> does that refer to sexual orientation as well? >> the supreme court of the united states has held that single sex marriage is protected by the constitution. >> judge, would you agree that if an employer were to ask female job applicants about their family plans, but not male applicants, that would be evidence of sex discrimination prohibited by title seven of the civil right act? >> i'd agree with you it's highly inappropriate. >> you don't believe it's prohibited? >> senator, it sounds like a potential hypothetical case that might be a case for controversy i might have to decide and i wouldn't want to prejudge it sitting here at the confirmation table. i can tell you it would be inappropriate. >> inappropriate. do you believe there are ever situations where the cost to an employer of maternity leave can justify an employer asking only
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