Capricious, ash tear or made sense. The Supreme Court in boumedin struck it down saying it was not an adequate substitute for habeas. Thats 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 Statementshould say or look like . Thats my recollection, and thats about all i can recall. I remember it very well because Vice President cheneys 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 dont 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, ive 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 54 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 youre an Enemy Combatant and if they reach that conclusion you can be held under the law of war as long as youre a threat to our nation. Is that a fair summary of where were at . Thats 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 54 as i recall. That proves that five people can be wrong. Whul i disagree i certainly respect the courts decision. Youre 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, theres 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. Thats correct . Thats 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 were fighting an enemy who has no rules that would do anything, and ive been in the camp i dont want to be like them, i this i thats 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 doesnt make us weak because tut the heads off. It actually mak us stronger over the arc of time, so thats 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. Thats how our system works. Thats how Brown Versus Board Of Education came about. Exactly right. Lets 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 womens 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 cant 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, thats 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, im 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, lets look at when medical viability occurs. Thats 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. Im not asking you to agree with my legislation. I am saying that i am developing, were one of seven nations that allow wholesale on demand unlimited abortion at 20 weeks, the fifth month of pregnancy. Id like to get out of that club, but were 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 dont 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 lets 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 dont have to say a word. Im 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 heres 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 thats in the fifth month and that doesnt make us a better nation. There will be people on the other side saying no, thats 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 thats 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 youd be unworthy of the job. Now, about whats going on in the country with President Trump whether you like him or you dont 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, thats my recollection of it firmly. So in case President Trump is
didnt 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 youll 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 Mitchells dayside shift. Well be getting to andrea, shes among our guests standing by to talk to us about what weve witnessed. Ari melber from the legal side of things has been watching along with us. Ari, i think the expression in english is its tough to lay a glove on this guy. I didnt 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 hes not supposed to. Anyone who has been watching your coverage, brian, over this morning would know this was a highly substantive discussion. Weve talked a lot about whats 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 Generals office. Hes also the same one who introduced and glowingly praised neil gorsuch yesterday. So its 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 president ial 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 hes 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 didnt 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 its 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. Thats how strongly people feel about it. Jen, thats 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 its not as if you dont 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 dont 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 didnt 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 didnt think they could count on his views to be where they want them to be when it comes to womens 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. Well 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 didnt 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. Its not what judges do. Okay, i dont do it at that end of pennsylvania avenue, and they shouldnt do it at this end either, rantfully. Respectfully. Ffect. They also know you need to get your annual checkup. Ffect. Now prepare for your checkup with one touch using the mycigna app, where you can find a doctor in your plans network to save money, manage your health and more. Need to be thorough. I just want to find a used car start at the new carfax. Com show me used trucks with one owner. Pretty cool. [laughs] ah. Ahem. Show me the carfax. Start your used car search at the allnew carfax. Com. I just had to push one button wto join. S thing is crazy. Its like im in the office with you, even though im here. Its almost like the Virtual Reality of business communications. No, its reality. Introducing intuitive, one touch Video Calling from vonage. Call now and get amazon chime at no additional cost. [kids cheering] [kids screaming] call the clown Parents Arent Perfect but then they make us Kraft Mac Cheese and everythings good again. More Doing Chores For Dad per roll more earning something you love per roll bounty is more absorbent, so the roll can last 50 longer than the leading ordinary brand. So you get more life per roll. Bounty, the quicker picker upper
hearings, and lord knows