If Brett Kavanaughs confirmed to the Supreme Court it will have profoundly negative effects on workers rights, Womens Rights and Voting Rights for decades to come. All i can say within an hour and 18 minutes of your nomination, you became the biggest threat to democracy. In the eyes of some of the most partisan people in the country who would hold kagan and sotomayor up as highly qualified and would challenge any republican, vote against them. You live in unusual times as i do. You should get more than 90 votes but you wont, and i am sorry it has gotten to where it has. Its got nothing to do about you. If you dont mind, and you dont have to, what did you tell your children yesterday about the hearing . They did as they ill tell them what they told me. They gave me a big hug and said, good job, daddy, and margaret, before she went to bed made a special trip down and gave me a special hug. I just wish if we could have a hearing where the nominees kids could show up. Is that asking too much . So what kind of country have we become . None of this happened just a couple years ago. Its getting worse and worse and worse and all of us have an obligation to try to correct it where we can. Row v. Wade. Are you familiar with the case . I am, senator. Can you in 30 seconds give me the general holding of roe v. Wade . As elaborated upon in Planned Parenthood Versus Casey a woman have a constitutional right as interpreted to obtain an abortion up to the point of viability, subject to reasonable regulations by the state so long as those reasonable regulations do not constitute an undue burden on the womans right. Okay. As to how the system works, can you sit down with five, you and four other judges, and overrule roe v. Wade just because you want to . Senator, roe v. Wade is an important precedent of the Supreme Court. Dont you have to have a case . You just cant yes. Not just, what are you doing for lunch, lets override roe v. Wade. I see what youre asking, senator. The way cases come up to us in that context or another context would be a laws can i give an example to do this quicker . Yes. So some state somewhere or some town somewhere pass as law that runs into the face of roe. Somebody will object. Theyll go to lower courts and eventually it might come up to the Supreme Court challenging the foundations of roe v. Wade. It would take a legislative enactment for that to happen. Is that correct . Thats correct f. There was such action by a local state or government challenging roe and it came before the Supreme Court, would you listen to both sides . I listen to both sides in every case, senator. I have for 12 years, yes. When it comes to overruling a longstanding precedent of the court is there a formula that you use . No. Analysis. So first of all, you start with the notion of precedent and as ive said, to senator finestone, a precedent reaffirmed many times over 45 years including Planned Parenthood Versus Caseyconsidered when toe ovther to o. That became a precedent in this context. But you look at there are factors you look at when considering any precedent. So theres a process in place that the court has followed for a very long time. Is that correct . That is correct, senator. Citizens united. If somebody said Citizens United has been harmful to the country, and made a record that the Citizens United empowered 20 people in the country to run all the elections some some state or locality somewhere passed a ban on soft money and it got to the court, would you at least listen to the argument of Citizens United needs to be revisited . Of course, i listen to all arguments. You have an open mind. You get the briefs and arguments and some arguments are better than others. Precedents critically important. Its a foundation of our system, but you listen to all arguments. Okay. Where were you on september 11, 2001 . I was in, initially in my then office in the eob and then after the first, as i wall, the first building was hit i was in the counsels office in the second floor of the west wing for the next few minutes. Then we were all told to go down to the bottom of the west wing and then we were all evacuated, and i think the thought was flight 93 might have been heading for the white house. It might have been heading here, and secret service, we were being hustled out, and then kind of panic. Started screaming at us. Sprint, run and we sprinted out. My wife was a few steps ahead of
authorization for use of Military Force which is still in effect. Passed, of course, september 14th, 2001, three days later. Talk about the law and war. Is there a body of law called the law of Armed Conflict . There is such a body, senator, is there a body of law thats called basic criminal law . Yes, senator. Are there differences between the two bodies of law . Yes, senator. From an American Citizens Point Of View do your Constitutional Rights follow you . If youre in paris, does the Fourth Amendment protect you as an american from your own government . From your own government, yes. Okay. So if youre in afghanistan, do your Constitutional Rights protect you against your own government . If youre an american in afghanistan, you have Constitutional Rights as against the u. S. Government. Is there a longstanding thats long settled law. Isnt there also long settled law that goes back to the case. Johnson versusize. Trader. Right. American citizens that are considered combatants if work with the terrorists . They can be. Talk about can be. Under Supreme Court precedent. Right. Theres a Supreme Court decision that said American Citizen who clapp collaborated with nazi were prosecuted . Yes, i think executed. Yes. If anybody doubts theres a longstanding history in the country that your Constitutional Rights follow you wherever you go but you dont have a constitutional right to turn on your own government and collaborate with the enemy against your country. Youll be treated differently. Whats the name of the case if
you recall reared from the concept you could hold one of our own as an Enemy Combatant in engaged in activities in afghanistan. Yes. Holmby. Bottom line, i want every American Stoin know you have Constitutional Rights but you do not have a constitutional right to collaborate with the enemy. Theres a body of law well developed long before 9 11 that understood the difference between basic criminal law and the law of Armed Conflict. Do you understand those differences . I do understand that theyre different bodies of law, of course, senator. Okay. If youre confirmed and i believe you will be, what is your hope when all of this is said and done and your time is up, how would you like to be remembered . A good dad. A good judge. A good husband. I think hes getting there. A good husband thanks, diane. You helped him a lot. Going to be better for you tonight. I owe you. I owe you. A good son ill quickly add. You know, a good friend. I think about the pillars of my life are being a judge, of course. Being a teacher. Ive done that and either way this ends up im going to continue teaching. Coaching. As i mentioned, a huge part of my life. Try to continue that. Senator kennedy advised me when we met, make sure you keep coaching even if you get im going to follow that. Volunteering, and being a dad and a son and a husband and
being a friend. I talked about my friends yesterday. I didnt really expect i got a little choked up talking about my friends. That was well said. Got to tighten it up. I just ran out of time. Okay. Thank you, senator. I can go on as you know but ill stop there. Were about ready to break for lunch and it will be 30 minutes. Before i do that, i have letters that to your nomination, and then we also have a letters in support of judge kavanaugh. And those will also be entered in the record. Then i wanted to explain the exchange that i had with Senator Leahy, that just so people dont
think that thats something that i did on my own. We had previously sent out a letter, and only senator klobuchar at that point had taken advantage of the letter to be able to ask for documents that were Committee Confidential so that they could use them at the hearing, and the only thing ive done for Senator Leahy that wasnt already in that letter was to remind people that we did the same thing for the Gorsuch Nomination to the Supreme Court and its policy that Senator Leahy, when he was chairman of the committee followed and so the only courtesy was extended to Senator Leahy, the fact he didnt make the request by the timeline that was in the letter, which i think was august 25th. Were going to adjourn 30 minutes for a lunch break, and i think that well be back here
exactly in 30 minutes. If not, judge kavanaugh, we will let your staff know if the going to be a little later, because you never know what happens in the United States senate when you have a vote. Coming up on 12 17 eastern time. The hidden good news there is that the u. S. Senate is about to vote on something. Apparently at the same time while this committee is going to have lunch. The chairman likes to adhere to a specific and certain clock. So well see at 30 minutes from now if theyre back in the room. An interesting morning session. The first question and answer session. It allowed the nominee to say he is mindful of real world effects of the law and his decision. He is mindful of precedent, obviously. Guiding his thoughts and his work, and his decisions. Dianne feinstein tried to score points early when she said to him, youre learning to filibuster. He took a pass on whether the president should be, should have to respond to a subpoena. He took a pass on whether the president can selfpardon. I dont think anyone would blame him for that. And were joined here by two distinguished and longtime attorneys. We saw Senator Leahy go down a bit of a rabbit hole. For folks watches at home, no more benefit than we did knowing what Senator Leahy was talking about. You learn in law school never ask a question you dont already know the answer to. If thats true, leahy has something, trying to get documents released to prove the point hes coming after the nominee. This does prove a certain point
on the documents issue . Yes, i think thats right. In general i felt the Judiciary Committee on the democrats side their questioning at sometimes too harsh and some points not harsh enough. Leahy seemed too harsh. Insinuating that judge kavanaugh knew that there was, that Senator Leahys emails were broken into and he was getting improper information back in 2002. Then also suggested that judge kavanaugh knew about the wireless wiretapping program earlier than he testified. As best as i could tell i heard zero evidence for either such claim. Maybe thats setting up Senator Leahys claim, hey, i need to see all the documents and so on but not totally clear the missing documents are necessarily going to illuminate either of these. Well see. Maybe strategy here. So far not much i think should give judge kavanaugh much concern. And as i said, does it shed light on the fact that the record is incomplete . Yes. I think Senator Leahy had two goals there. One, perhaps to create smoke around these issues of the stolen emails and when did judge kavanaugh know of the list program. Watching here, i said, wow. Does he have it . Does he really have him nailed and a document . He didnt quite have it. The suggestion, a little smoke. Perhaps he didnt know, maybe a reason he should have known or maybe turn add blind eye. Those are the question, was it unusual to be asked to someones home as you were apparently and shedding light on the contested issue over Documents Makings case to the American People and the senate this why the documents matter why we need them all. Unclear if he said there was a smoking gun in there or we cant know unless we see all the documents. And id have to ask you. This is not an incident germane to the hearing in chief but something that happened yesterday when the parent of one
of the students killed at Parkland High School extended his hand. Theres the still photo, and said in what apparently was an audible voice, introduced himself. Kavanaugh turned and left the exchange. Kavanaugh was given a chance today to talk about him, and in the portion where he was talking about working at a Homeless Shelter in d. C. , he never came back to it. He took a pass on talking about it. Yes. I find that very odd. I always try not to judge someone without saying can i put myself in their shoes. When the incident happened yesterday, at least having been in the Hearing Rooms before and watched these Supreme Court confirmation hearings. Theyre so tense. So i assumed this was, the tension of the moment. Him not, judge kavanaugh not quite hearing the question correctly or the statement correctly and so on. Then today you had senator Lindsey Graham giving judge kavanaugh the opportunity saying what would you like to say to
that father . And we still heard no answer. I assume the tension of the moment. Judge kavanaugh, regardless when you come out on his nomination is a very, very decent man and so i dont i think a little too much is made of this. Instead i think people should be talking about his guns opinions and so on and actually what he would do as a justice, but thats the theater confirmation hearings. And its true that this now just hangs 0 ut there. I wont be surprised to see another republican give him another chance to clean it up after the lunch break. Yeah. Part of the beauty of having the alternating system here. Hell have many other chances. An aide perhaps would be wise to whisper, hey that question was cued up. I know you started to go down the road but didnt complete the job. Its a pretty easy fix. Just acknowledge the man. Acknowledge his pain. Acknowledge that perhaps it was a misunderstanding yesterday and get it over with. On the brighter side for judge carkavanaugh, his answers senator graham humanized him. He talked about working at a, for the homeless and so on. I think it really came across nicely. He also talked about something which ive seen firsthand. His approach to sitting as a judge, trying to listen to the arguments carefully, understand everything about the facts and the law and having flight front of him is absolutely right. He is unbelievably prepared and really does try and put himself in to the shoes of a litigant to try to understand whats their best argument . Not the argument i want them to make but the best argument . Its always hours ago, but when mya wiley was here with us, you were listening carefully to feinsteins opening, and i think you both agreed that she took a pass on going down a certain route. What was that . Yes. So i mean, Senator Feinstein started by talking about abortion, and saying effectively, are you going to overrule roe versus wade, the 1992 decision . Easy questions for any nominee
to answer. Particularly somebody as polished as judge kavanaugh. He said, precedent, precedent, im not going to. And what Court Litigation is about, not a clear, easy case. Its when the law doesnt tell you actually wa to do. What do you do in that jecase . And the garza case decide add few months ago he disagreed with Majority Colleagues on his circuit and said a 17yearold effectively couldnt have an abortion. You know, at least without facing a large number of delays. Undocumented immigrant who came over and so on. Thats a much better template to understanding how hes going to vote. And you know, look, i mean, i dont really quite understand why the republicans are running from this. I mean, the president campaigned on, were going to have justices who are prolife and so on. Prolife, prolife, make the
nomination and oh, no, no, no. Cant tell you anything about how these going to vote. Neil is right. So easy to say i wont answer a hypothetical and i wont talk about settled law . Id like to see a little more grilling down as well. Too easy evasions. Whats not hypothetical . Anything could be hypothetical. Theres a body of scholarly writing. Minnesota law article espouses and extremely broad view of the president s executive powers rather than ask questions to easily brush asiask about this article. You said this when you wrote this in 2009. Do you still believe that . Has that changed . Having been pretty involved in now justice kagans hearings and watching her do it. Thats what republicans tried to do there. The problem, she is the answer, which was, i was an academic. Writy for a different audience. No constraints. I suspect judge kavanaugh would do a similar thing. Maybe one tactic, judge, you said judge me by the 300 opinions ive written. Okay. Go through them. Talk about the guardsa abortion opinion. Talk about the heller opinion. Theres a lot, this is a judge within a very long established body of work. Today he tried to say, look, i will be independent. Look at the hamdan case. My case, didnt argue in front of him but it was a pretty ea