Meaning the Supreme Court like most Appellate Courts is in charge with very few exceptions remaining today. Of its own docket, the 10,000 or so cases that want to go to the Supreme Court each year that will be reviewed by the court. The court had already been granted review in that case, is that right . As i read these emails, i read your argument does saying number one, you cannot count to five here because im identifying, ive identified that the justices can embrace these arguments in defense of these department of transportation regulations. But the court has already granted, so what to do . As i understand the emails, you recommended a course of action that would allow the government to make its case in a way that would allow the court to decide that perhaps it shouldnt have granted review on the case. On my correct so far . Thats correct, senator. What is that called when the Court Decides it shouldnt have granted a case . Dismissing as improperly granted. You came up with the strategy for having the court dig oh court that had already been granted. You didnt want the government to have to endure that. Did they accept your arguments . The Supreme Court did, yes. The government, the Bush Administration followed your advice and wrote the arguments as you had prescribed, thus prompting a dig. As a result, the regulations stood up, isnt that right . I believe thats so. They stood where they otherwise would have fallen. Thats right. Here again i have a hard time seeing this as anything other than something that helps you, not just with republicans but helps you with democrats. You saw a problem with the argument the government was making, you identified that problem, you offered a remedy, that remedy was embraced. The court did exactly as you wanted it to do and as a result the regulations stood, the regulation that senator booker is concerned about, wanting to make sure was not under attack unfairly was in fact preserved. I have a hard time seeing why that shouldnt make him want to devote more for you. I think senator booker really should vote for you, i will have that conversation with him later. Okay, one additional response to last nights round of questions. At the end of a grueling day, my friend and colleague senator harris from california asked you whether youd spoken to anyone at the law firm about the Mueller Investigation. She implored you to be sure about your answer, which i suppose is good advice in any context. It can sound somewhat ominous. The issue with this question is kasowitz is a law firm that includes 350 lawyers in nine u. S. Cities. Im guessing not even mr. Kasowitz himself, who started the firm can even name every single attorney. Could you name every attorney that works at that firm . No. Can you rule out the possibility that you may have close friends, former law clerks, former law School Classmates who might work at that firm at some point . I dont know who works at that firm other than a few people im aware of. I did not know senator lieberman worked at the firm. Can you name the nine cities were of this firm has offices . No. My colleagues question may be a very direct question but its something i think in this circumstance is unfair. If you cant identify the people she has in mind or you dont even know who works there. Let me ask you something that may get at her underlying concern in a way i think is fair, i think each of my colleagues when they have concerns and questions, they deserve to have their concerns addressed, let me ask you in a way i think is fair. Have you made any promises or guarantees to anyone about how you would vote on any case that might come before you if you are confirmed in the Supreme Court of the United States . No. Have you had any improper conversation with anyone about the Mueller Investigation . No. Lets talk a little bit about executive power. It is the president of the United States absolutely immune from any and all legal action, whether civil or criminal . Senator, the foundation of our constitution was that, as hamilton explained, the presidency would not be a monarchy and it specified all the ways that under the constitution the president is not above the law, no one is above the law. In the United States of america. The president is subject to the law, the Supreme Court precedent in cases such as clinton versus jones, United States versus richard nixon, established those principles, in the official capacity, so the president has authority under the constitution, the executive power under the constitution, the president as established by the frameworks of the constitution is not above the law, no one is above the law in the United States of america. A practical matter, who investigates the president . As a practical matter, traditionally, as ive written about, when there is an allegation of wrongdoing by someone in the executive branch, as to whom there might be a conflict of interest of an ordinary Justice Department process took place, there has been traditionally the appointment by the attorney general of a special counsel thats gone back for hundred years or so of that kind of outside counsel appointment, we saw that in watergate but weve seen it lots of other times where special councils have been appointed for particular matters where there is otherwise a conflict of interest or perceived conflict of interest of some kind. Now, ive had colleagues who have worried about your view that morrison was wrongly decided. Your view, just to be clear is that morrison applies only in a special context no longer relevant here, is that right . Thats correct. What context is that . The independent counsel statute which is distinct, it had a lot of features to it, and that statute was viewed by the congress when we consider day in 1999 as being unrestrained, unaccountable, impermissible and the statue was not renewed, the morrison case was about a oneoff statute that no longer exists. Thats what you can talk about it. Thats why i have talked about it. These are the remains of a once existing but no longer its a dinosaur, in legal terms. What about your opinion on phh, its really limited to independent agencies. The federal Energy Regulatory commission, the securities and exchange commission, a full range of independent agencies, the 1935 president of the Supreme Court established that those are permissible. Traditionally theyve been multimember bodies and that was a problem i thought in the Consumer Financial protection case. I would up with a remedy, still allow that agency to continue operating and performing its consumer functions. Harris im harris faulkner, this is outnumbered overtime. Weve been watching the live confirmation hearing of Supreme Court nominee judge Brett Kavanaugh. At times in the several hours weve been covering this on fox news today, it has been contentious. At the heart of that contention has been a new jersey senator, cory booker. Saying he would capitulate or surrender to senate rule of being expelled from the senate by releasing some information he is calling confidential. Some emails by Brett Kavanaugh. The situation has moved forward quite a bit and we want to catch you up, we are all over the hearing. We will dip in and out over the next couple of minutes but lets beget to the news thats being made on this. Shannon bream joins me now, shannon, youve been covering the hearings on capitol hill. Particularly interesting, this battle among senators today, was it real what we saw with cory booker and others . Thats what were digging into. You saw him this morning, ill take the consequences, ill take the punishment, im knowingly violating policy but i think these document need to be out there. Senator cornyn asked him to reconsider. There was a lot of heat about this, cory booker later saying bring it on, i welcome that. He referred to senator cornyn who was a bully with a lot of talk and no action, thereve been some developments since then. Committee staffers now say that all these documents were cleared for release by 4 00 a. M. This morning and they tell us the senators were notified before speaking this morning. Ive reached out directly to senator bookers office to say when did he know that these documents were cleared before he made such a big show of saying im going to throw myself on the sword essentially. Is it possible he didnt know the documents were cleared before he made these statements . He said he did not know until after that exchange. We will get let you know if we get an answer, it may have been a dustup that was more smoke and not fire. Melissa spartacus is where Kurt Douglass and many famous actors stood up and said they would be him in that moment of life taking. He was a gladiator, hed been taken into custody at that point and everybody stood up and said they were spartacus, willing to take the death knell for him. A very interesting jump the shark moment for cory booker if it turns out these documents had been cleared to be made public. And were not marked confidential at the time that he shared them. We are still gathering facts, weaving the story along. We have now talked about all sorts of topics. You know where the hot spots are. Is there any place where Brett Kavanaugh has had a challenge . Its interesting because last night there were documents, one mentioned by senator booker and other things mentioned by senator harris. A lot of people think the two of them are trying to get attention for 2020, they are relatively junior senators here but she alluded to a couple things that left some open questions. Both of them planted the seeds of mystery last night and we watched to see whether they would actually bloom today. The thing that seemed to confuse folks working on this nomination that maybe they dont know everything, maybe they do and theres nothing to it. We found out what he was after because weve seen these emails. Most folks across the board say theres nothing objectionable here. We wait to see what we get from senator harris. You may be able to hear behind me another round of protesters. Harris the protesters have been yelling clear the docs, release files. I have judge Andrew Napolitano with me now, you actually are in favor of releasing the files, releasing the documents from Brett Kavanaughs history. Why . I think theres an impression on the part of the public that unreleased documents show something the party that controls them wants to hide. I dont think judge kavanaugh has anything to hide. Its the white houses decision. I dont know whats in there but im in favor of releasing them and if they want to question judge kavanaugh about than they ought to be able to do so. Harris its all win politically for democrats assuming they still have time to read all the documents. The system must be fair and it must be perceived as being fair. The democratic claim that a hundred thousand documents written up about this man when he was a young lawyer, by president bush who has personally signed off on these documents, thats a legitimate beast. I myself want to see in those documents. Hes going to be signed off on by the committee and probably going to be confirmed by the senate but there will be that impression that there was something in those documents they wanted to hide. Harris is this something the judge himself can weigh in on . No, we are dealing with a statute which says the president under whose office the documents were prepared and to the president who is in office at the time the documents are demanded, must both agree. If either one says no the documents dont come out. George w. Bush said release them all, President Trump said here is 100,000 we are going to keep secret. Harris we are watching something happen on capitol hill, some instructions being given here. We heard quite a few protesters, Shannon Bream was talking about that moments ago and you see the judge has gathered his belongings there. We are watching very closely to see if they take another break here. Judge Andrew Napolitano along with us, dipping in and out of this today. Thank you very much for your expertise. Lets now bring in republican senator john thune, chairman of the g. O. P. Conference. Great to have you. We are about to have a little more time than we thought we would because as i was observing, they are in fact after some outburst there, after a protester outburst they are going to take a break. You and i have a little more time. Lets catch up with the action today and start with this. You work across the aisle with senator cory booker of new jersey. What did you make of his so called surrender to senate rules . Hes allowed himself to come if its necessary to be expelled. We learned that documents have perhaps been cleared for us to see. I think the point of all of this is, clearly he is running for president. Youve got to appeal to the far left end of the far left right now is in a rage over judge kavanaugh and the fact that this president would have the opportunity to nominate him and get them confirmed and the Supreme Court. Its all about the emotion on the left, all about these candidates already, some of the senate doing everything they can to appeal to that far left base. Its unfortunate because it really detracts from what should be a process that is befitting of a nominee of the Supreme Court. Harris i wrote down what you said, clearly hes running for president and that would make it purely political. Lets do one more quick question on this and i want to move on and talk about the Government Shutdown potentially looming at the end of the month. Judge kavanaugh is said to have not made any major missteps. Ra there any challenges youve seen and what does that mean for the overall picture . It certainly looks like 100 he will be confirmed. At this point hes acquitted himself extremely well in the hearings as weve expected they would. Hes incredibly intelligent and studied and obviously articulate and i think that came across and the American People had an opportunity to see that. Its unfortunate the democrats tried to create the circus atmosphere around these hearings and are doing everything they can to delay what will ultimately be an affirmative vote on his confirmation. I expect it to happen, its a question of timing and hopefully it will happen before october 1st when the new court is ceded for this year. Harris we are headed towards and another inevitable t with Government Shutdown, its so interesting you get together and every few months or so, they can has some new ingredients now and thats what the president has talked about. If it happens, it happens. If its about Border Security i willing to do anything. Thats the president of the United States. To speak all right. We met with him yesterday on this subject, he obviously is interested in how we wind down the fiscal year, we have defined the government by then and talk for priorities for the calendar year. Hes incredibly passionate and he believes the American People support him and i think they do. He is willing to do whatever it takes to get that done. We tried to convince him, advised him that shutting down the government doesnt accomplish that objective but in the end we want to work with him however we can to try to get the wall built because it is an important part of Border Security and an important part of keeping citizens in this country safe. Harris as big as the issue of illegal immigration has been this summer in particular, the president doubling down on something we know is so important to him. We will cover the news as its happened, we are happy to have you on the program today. Thank you for your time. The Senate Judiciary committee has taken a break as you saw. We will bring it to you live when they return in about 30 minutes. The white house and the first lady pushing back hard against the New York Times after the paper ran an oped penned by an unnamed alleged Senior Administration official slamming the president. Stay close. 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Today, christines metastatic cancer is in remission. This is precision Cancer Treatment. Because at Cancer Treatment centers of america. Were not just fighting cancer. Were outsmarting it. Visit cancercenter. Com and schedule an appointment with our cancer care specialists today. Harris they are in a 30 minute or so break on capitol hill. When that resumes, of course, we are