tv Supreme Court Nominee Brett Kavanaugh Confirmation Hearing - Day 4 CSPAN September 7, 2018 12:57pm-4:23pm EDT
promises that closely proximate substantive promises. number eight, senators may properly oppose judicial nominees some to because they disagree with the nominee's general constitutional philosophy or likely constitutional vote on the bench. number nine, the current senate confirmation process is badly flawed and should be change for future vacancies. number ten, back to number one, responsible naysayers must become naysayers of the circuit famous specifically name better nominees realistically on the horizon. if not brett, who? distinguish republicans, have is your teams brightest judicial star. rejoice. distinguished democrats, don't be mad, be smart, be careful what you wish for. our party controls neither the white house nor the senate. if your torpedo cavity likely end up with someone worse, somewhat less brilliant, less constitutionally knowledgeable, less studious, open-minded, less
good for america. thank you. >> that was the portion from this mornings session of the brett kavanaugh supreme court confirmation hearing. lawmakers getting testimony from outside witnesses today. they're expected to resume shortly just after 1:00, so just a few more moments. two more panels are expected today and among those testifying will be former nixon white house counsel john dean. a reminder that we will repair today's session of the supreme court confirmation hearings at d you can see all of this day staring at c-span.org. -- days hearing at c-span.org. [inaudible conversations]
[inaudible conversation] before i introduce the panel, if nobody told you that push the red button before you speak, otherwise we won't be able to hear you. so the next panel is followed by eight witnesses, four are for the majority and 4 are selected by theminority . we have a mister kramer, a miss eastland, miss abelson, mister corbin, mister lachance, miss mahoney, miss
smith and mister christmas. i would ask you at this point if you would stand and i'd like to have you take an oath . do you swear that the testimony you're about to give before this committee would be the truth, whole truth and nothing but the truth, so help you god? thank you for responding. now i would like to say a little bit about each of you so the public watching on television or anybody in the audience knows. a layer eastman is let's see, i'm going, okay. is a student. i should be starting with mister kramer .
aj kramer is a public defender of the district of columbia, very important position. these held the position since the creation of the office of federal public defender for the district of colombia in 1991. i don't know but i'll bet you is one of the longest-serving people in that position, anyplace in the country. we have a layer eastman, student from parkland florida and survivor of the very sad school shooting at marjorie stoneman douglas high school. where the tragedy went through, we will hear about it i'm sure. rebecca abelson, law clerk for judge kavanaugh from 2010 to 2011, later clerk for justice scalis on the supreme court.
currently serves as a federal prosecutor in iowa was neighboring state of wisconsin. jackson corbin is a student from hanover pennsylvania. and that's all the information i have about you that if you want to tell us any more about you, we won't take it off of your time that you have to us and we have connor lachance, a student , kennebunk maine. and then we had maureen mahoney, serving as deputy solicitor general of the united states. from 1991 to 1993. she is a retired partner latham and watkins. melissa smith, a teacher at us grant high school, oklahoma city oklahoma. kenneth rissman's executive vice president for business and legalaffairs , marty set
entertainment. he is the 1991 graduate of the yale law school and a classmate of judge kavanaugh. so i welcome all of you and i think we will proceed with mister kramer. and then we willhave our questioning . >> thank you mister chairman and ranking center white house. iq for the opportunity to speak on behalf of judge brett kavanaugh's nomination to be a justice of the supreme court. i've been as chairman grassley said, federal public defender in washington dc 1990 and prior to that and i think all humans was i'm old when you said i'm one of the longest-serving and i have worked in the federal public defenders office in the sacramento and san francisco before i came to washington dc so i spent my entire legal career as a federal public defender. i want to echo two things said by the prior panel that i too was dismayed that chief judge garland was not
confirmed for the supreme court because i think he would have been a great supreme court justice and also congressman richman's remarks about race and the criminal justice system which i think pervades the criminal justice system. and i do, so i suppose you ask what i'm doing here. i'm speaking on behalf of judge kavanaugh and i will tell you why. i have two disclaimers. i see only on my own behalf, and on behalf of our office in washington dc or any other public defender office or the federal public defender system and also, i have read essentially none of judge kavanaugh's several opinions but i've read almost all of his criminal opinions and i've argued in front of him numerous times, probably more than 20 times in criminal cases and that's what i'm here to talk about, his decisions in criminal cases and i have to say that he is extremely well prepared and oral argument. he asks the pertinent questions and ask them in a
nice manner, not all judges are like that but he asked the most important question and the zeros in on the most important issues in the case. i was asked to talk about a couple cases that argue, one of them was a woman who was convicted of extortion testified extensively under trial about how she had been severely beaten by her boyfriend and forced into committing the offense and i took over the case after the trial proceedings and argued that her lawyer had been ineffective in failing to present expert testimony on battered women's syndrome. it went up and down to the court of appeals and back and judge kavanaugh wrote the opinion for the court of appeals saying her lawyer had been ineffective and failing to retain an expert on battered women's syndrome and he wrote a primer essentially on this defense of battered women's syndrome or lawyers
in the dissent of one of his colleagues and in another case that i argued and tried, it was a terrible tragedy of a person in the military who had died after a hazing incident involving a gang and there were major issues about jury instructions and closing arguments and the case was reversed again in a one panel opinion and judge kavanaugh wrote a concurring opinion in case talking about how important it was the jury be properly instructed on the mens rea for the crime and while my client had committed some heinous acts, he deserves to have a fair trial and the two trials in that case and not be fair and he wrote concurring opinions to emphasize that. i should add there's a number of other cases i've argued and our office has argued where judge kavanaugh has been protected of making sure that mens rea has been proved in various cases including a case called burwell where i
was appointed amicus by the court of appeals . judge kavanaugh was one of three judges that dissented from the end back and adopted the views i put forward. he's also been a major advocate on the court of appeals of writing about the bizarre situation where defendant to go to trial and are acquitted of a number of counts in the case including a case where everybody was acquitted of all one count but then they are sentenced for the conduct of which they are acquitted. the judge takes that all into account and gives them a heavier sentence which i should add that congress could end very quickly in a bill with a couple sentences telling judges they should not take conduct. he's been a very critical of that. i should also add that i've served on two committees with him. so i think the bottom line, he's been fair in criminal cases where it might be assumed that he would reflexively affirm criminal
cases. he's been extremely fair and thoughtful is my experience and i also serve on a committee, two committees with him, one of them provides for ja lawyers, no justice. his concern has always been to provide the most effective lawyers or defendants of the highest quality and i want to and with one thing. he sends me emails occasionally talking about how he likes the good job that our office does in defending criminal defendants and our clients and he sent me an email totally unsolicited quoting the chief justices dissent on a forfeiture case and he said federal prosecutors when they arrive in court represent the people of the united states, but so do defense lawyers one at a time and the judge kavanaugh sent me the quote and said that's a nice line and it's what you and your office do so well also all that is why i will support the nomination of judge kavanaugh to the supreme court .
>> chairman grassley, ranking member feinstein and other members of the committee, thank you for the opportunity to be here today to share my experience and perspective on gun violence. it needs to be a critical part of the consideration for any judge, particularly for the highest court. my view is impacted as my survival of gun violence in parkland florida six months ago and also losing my uncle patrick edwards in brooklyn new york . my name is lorraine eastman. i work across the country to help amplify the voices of young people and particularly young people in communities of color whose day-to-day experience is always ignored, mischaracterized and minimized by the press, and the corporate gun lobby. one of two, february 14, holocaust history, my last period of the day. the classroom was locked and in the beginning of the period we began resenting our
hate projects we've been working on. nicholas suarez was in my group. later that i know 17minutes from then he said life . we heard around the loud pops and i had no idea what it was. the class was in complete silence and we huddled together with fear. within seconds we heard it again. we all immediately around. the class split in half. half of my class was in the same spot out of the view of the classroom door, the other half was diagonally across from the window. i was not in the state. i remember telling myself if i were to get shot anywhere i wouldn't make it. i need to be behind something. the only thing in front of me was nicholas suarez. they began passing books out to shield ourselves with bullets. everyone thought it was a drill. i clinched the book from helena and looked at my phone to call my mother. as i raise my finger to hit
the green button, loud pops were in my class. i thought what kind of senior prank is this? as i began to see red on the floor, i assumed it was a paintball gun. i saw helena ramsey slumped over with her back against the wall. i began inhaling gunpowder and then nicholas fell over in front of me. i saw every movement of his body. when he fell over, i fell over with him. i then place myself under his lifeless body, placing my head underneath his back. bullets continued flying. i kept my eyes on the ground. i began talking to god. i told god that i knew i was going to die. i asked him please make it fast. i didn't want to feel anything.i asked for the bullet to go through my head. i laid there for about 30 seconds, still protected by his lifeless body. waiting for the shooter to move on to the next class, after the shooting stopped in
my class, his body became heavy. i couldn't breathe anymore. i rolled them off of me and placed his hand on his arm so he wouldn't be touching the ground. i sat up and looked over, helena was in the exact same position i last saw her. i froze. in view of the window, the shooter shot into, two of my classmates threw me behind the filing cabinet. some on the phone with 911, some on the phone with their parents. i called my mom and told her my last goodbye. i told her how much i loved her. i apologize for all the things i might have done to upset her and then the phone hung up. i called my father and told him how much i loved him, i told him to tell my brothers i love them and said my last goodbye. i couldn't hear anything they were saying . not knowing whether it was one shooter or multiple and not knowing whether they were coming back were not was an unimaginable area that sitting behind the filing cabinet waiting to die, i began hyperventilating. my classmates again breathing with me. it didn't work. they then covered my face. i felt like i was suffocating it was to keep me quiet.
2:30, broward county police was from outside the shattered glass. i thought it was the shooter playing a trick and that's what team member to take the pulse. he then looked at mewith compassion and said i know . we all ran out, tossing mines on the way out.when i got outside i was disoriented. the policeman said he we needed to work with us. i was petrified. 4:00, i finally my friend and her mother. they noticed the unimaginable. they call the police and began picking body matter from my hair. i broke down. the police took me back on campus to gather photos and collect my dress. a place it in a c for biological exposure and recording my breathing. 9:30 america hotel i finally allowed to physically touch my mother. it was written, so real and mindnumbing. i will neverforget what i saw, what i did and what i experience . i will never forget nicholas
laura's in-depth my life. they later received news that my mother was having a miscarriage because of what the shop shooting it. . it impacts me every day of my life. i also lost a family member gun violence, my uncle patrick edwards in the streets of brooklyn. he was shot in the back of the bulletin. his heart. he was 18 and unfortunately that is the same story of thousands of black and brown families across the country. gun violence impacts you whether it be homicide or domestic violence. as for people of color, law enforcement is the shooter in some cases.i history of biased brutality in so many communities, like many of my brothers and sisters i am not comforted by these with handguns. i am concerned concerning kavanaugh you views on bonds and how he would strike down any assault weapons ban. many dangerous people continue to be able to access and use dangerous weapons to
terrorize americans at home, work, church, school and on our streets. as you consider what to do and who to appoint to make us safer from gun violence, remember my story , remember my classmates who died, remember the victims who based shootings every day, remember victims from brooklyn, miami, oakland and all over america and as you make a final decision, think about if you have to justify and defend your choice to those we lost the gun violence and it kavanaugh doesn't have the decency to shake hands with the father of the victim, you won't have the decency to make decisions that affect real people. youth is urging our society to recognize the seriousness of the gun violence epidemic in america. we are here with an urgent message, it you across the country can fight to eradicate gun violence, like judges, lawmakers and donald understand young people are dying from violence. >>.
>> thank you. mister chairman, ranking senator white houseand members of the committee, i am honored to be testifying before you today . my name is rebecca tables and and i'm here from wisconsin. i clerked for brett kavanaugh in 2010 and 11 and i enthusiastically support his nomination to be an associate justice of the united states supreme court. i'd like to talk about two things today. first, what brett kavanaugh is like as a judge and second, what kavanaugh is like as a person. i work in his chambers, judge kavanaugh has a model of sorts, process protects us. i'll admit, it is not very catchy. but it's true as a judge and to his court judicial philosophy. what it means is that judge kavanaugh goes through an intense step-by-step process in order to decide each and
every case. that process start with an open mind and a foundational commitment to believe that either side might be right. >> judge kavanaugh and reads and analyzes every three and rereads every precedent in the case . and he insists that his law clerk find the best version of each argument in the case. even when the lawyers themselves have not. and in addition to the party's arguments, judge kavanaugh also takes very seriously the views of his colleagues, the other judges on the case, especially when they differ from his own. >> i can remember booktv.org. >>. [inaudible] >>. [shouting] [inaudible]
senator white house and members of the committee, i'm honored to be testifying before you today. my name is rebecca abelson from milwaukee. i stood for canada in 2010 and 11 and i enthusiastically support his nomination to be an associate justice of the united states supreme court. i'd like to talk about 2 things today. first, what kavanaugh is like as a judge, and second, what brett kavanaugh is like as a person. i work in his chambers and judge kavanaugh has a model of sorts, process protects us. i admit it's not very catchy but it's true to the judge and to his court judicial philosophy. what it means is that judge kavanaugh goes through an intense by stepprocess in order to decide each and every case . process parts with an open mind and a foundational commitment to the belief that
either side might be right. judge kavanaugh reads and analyzes every and rereads every relevant precedent. and he insists that his clerks find the very best version of every argument in the case, even when the lawyers themselves have not. in addition to the party's arguments, judge kavanaugh takes very seriously the views of his colleagues, the other judges, especially when they differ from his own. i can remember all too clearly being corrected by judge kavanaugh once when i press out of law school spoke to dismissively about another judges view of the case and learn from that. understanding judge kavanaugh's humility and respect for his colleagues is essential to understanding his identity as a judge. judge kavanaugh completes his entire process from scratch every issue in every case. it's no coincidence is often the last person at work in the courthouse at each night but it's worth it.this
process as he says protects us. it protects against snap decisions, shortcuts and free judgments. by never skipping a step, never giving short shrift from an argument for ignoring a precedent, judge kavanaugh insures his decisions are based on the law and the facts in each case and only those things. that process also protects us , american citizens from having unelected judges ruling based on their own predispositions.only after completing the process as, does a judge decide once and for all and once hedecided, he is difficult to bunch . he is independent and stubbornly so. he cannot be pressured by his law clerks or his colleagues and he cannot be intimidated by other actors in government . it is simply not part of his process.
politics also have no place in judge kavanaugh's process. having known the judge for almost 10 years and worked with him closely, i myself do not know what his views are on the political issues of the day and as a law clerk, it would have been unthinkable to even mention the political implications of the case. in fact, had we known in advance how to decide a case based on the parties or some policy goal, we might have skipped a few steps in the process and gone home a bit earlier at night but he never did and so wenever did . for those reasons, if you want to know what judge kavanaugh is like as a person, his cases are not the best place to look because he keeps his preferences out of them. this process reflects his fairness, work ethic and judicial temperament but the outcomes are based on the law, not his personal views. but i can tell you as a person, brett kavanaugh
stands out.he has testified extensively this week so i don't need to tell you how smart, thoughtful and unstoppable he is . when his guard is down and he's not on television, he is the same way but in my view, those are not his most remarkable qualities. instead, it's his every day universal disarming kindness. i sometimes find myself paying that judge kavanaugh is normal or approachable but those clichcs are not quite right. instead, those are complements designed for federal judges who know and expect to be normal or approachable. in truth, judge kavanaugh is far nicer than normal and far more approachable than almost anyone you will ever approach . he has an easy laugh and a great sense of humor. i myself am rarely funny as senator booker has pointed
out, but he laughs at all of my jokes, including especially thejokes at his expense although his credentials are elite, you would never know it . the judges is a regular at his neighborhood bar for example where he's partial to a budweiser and hamburger and where a long time regular bartender did not even know that brett kavanaugh was a lawyer before he got the nomination to the united states supreme court area if he is confirmed, judge kavanaugh's humidity, collegiality and kindness stand out. judge kavanaugh is going to stand out on the supreme court or another reason as well. which is his support for women in the legal profession. the elite legal circles are predominantly male. your year i click on the supreme court, and six other 39 law clerks were men and just this morning, the new york times ran an article about the terriers faced by women and people of color throughoutthe legal profession according to the article , and 80 report found in 2016
only 35 percent of active american lawyers are women. judge kavanaugh by contrast has hired more women than men as law clerks. in one year, all four of his clerks were women which is a first for the dc circuit court. that is something no supreme court justice has ever done. after hiring us, judge kavanaugh goes back for us. as a member of this committee goes, hard work and smarts are not always enough to reach the top of your profession. instead, it takes guidance and people who have been there and had the kids willing to fight for you. studies have shown that women are often at a disadvantage on those fronts but judge kavanaugh is a force of nature. thanks to his sponsorship, about 85 percent of judge kavanaugh's email clerks have
gone on to clerk on the supreme court we have clerked for justices across the court including justices kagan, breyer and soda mayor. we have served in all three branches of state and federal government,we are professors, prosecutors and nonprofit attorneys . one of us is now even a judge yourself . i know of no federal judge who has more effectively supported women in this profession and brett kavanaugh. 10 years after i first met him, i'm now figuring out how to be a lawyer and a mom whose three kids ages three and under and in fact, if you heard a baby crying outside the chamber earlier this morning, that is my fault. she is three months old and she absolutely insisted on coming. i know firsthand how important it is to have an advocate like brett kavanaugh and iattribute my still vibrant legal career in large part to him . i am only one of many, a significant number of judge kavanaugh's former circuit clerks have been here for
these hearings and we have uniformly recommended him for his character, his work ethic and his kindness. the united states and the american people would be well served with judge kavanaugh on the supreme court, thank you. >> chairman black grassley, ranking member feinstein and his which members of the senate judiciary. i'm privileged to represent the other 30 million people with pre-existing conditions today and i'm grateful for the invitation to testify before you. my name is jackson corbin and i'm 13 years old. i'm a lot like a teenager, i have comic books, marvel movies and i love to fly mine craft. can years ago, my brother and mother and i were all diagnosed with a genetic condition that affects various areas of the body. as a result of my syndrome i have a lot of pre-existing conditions . the syndrome of x micro, so
i'll never be as tall or as strong as people my age. i have stomach issues, reflux and i get bad headaches. my most severe condition is my disease, a form of ophelia, this means i cannot play contact or do things like roughhouse, rollerskate or jump on trampoline. i take medication to control my reflux and plot my blood if i get hurt. having my medicine at home means i don't have to go to the emergency room every time i need to get a bad bruise or cut. my brother henry is my best friend. he is 2 and a half years old and he has the syndrome two. we do everything together including going to our specialist visits. my mom always said the greatest thing she ever did was give the two of us to each other. the syndrome affects everyone differently.in addition, i have all the same conditions as me including the disease,
henry has even more special healthcare issues than i do. >> when henry was a baby, he had a life changing stomach surgery and a blood transfusion and now he has what's called gastro lysis which means he vomits every day, sometimes in his sleep. we share a room and at first it was scary to see him vomiting this way and now when i hear him gagging, i rolled him over he doesn't choke and run to get my parents. henry also has heart problems and asthma and i worry about henry a lot. i've heard my mom and dad say they're grateful for insurance because the cost of our care is more than my family makes any year. that means if the affordable care act is repealed , my parents will not be able to afford to pay for ourcare.
i've been fighting for healthcare for nearly 2 years . last year in the first speech i ever gave on the lawn of the capital, i compared myself to doctor seuss is the lorax . the lorax says i am the lorax and i speak for the trees so i said i'm jackson and i speak for the children.i said that because i met so many children with special healthcare needs unable to speak for themselves. i wanted to be their voice. as my journey continued, i met even more children and adults with pre-existing conditions like me and henry are scared for their future. i realize i'm not only speaking for the children anymore, today especially, i speak for everyone. i speak for myself, henry and all the other children across the country with special healthcare needs. i speak for the parents who struggle with their own health issues while caring for their children including my own mom who has the syndrome two. i speak for every person with a disability who passed me in
the senate hallways as they fight for our care. i speak for every person with a disability will ever be believed independently. i speak for the man who has lupus who will ultimately wear the suit i am wearing today. most importantly, ispeak for every american was like a change tomorrow with a new diagnosis . my intention is a part of who i am. it's been a part of me since the day i was born. it will be a part of me for the rest of my life. protections for pre-existing conditions, julie and all kids and adults like me without care, they will not be able to afford healthcare, all because of we are. we deserve better. i might be a kid, but i'm still an american and the decisions you are making today will affect my generation's ability to have access to affordable healthcare. we must have justices on the supreme court who will save the affordable care act,
safeguard pre-existing conditions and protect our kids. please give us the chance to be healthy and grow up and to lead this countryone day. i know i want that chance . >>. >> mister chance, go ahead. >> chairman grassley, ranking member feinstein and members of the senate judiciary, my name is hunter lachance. i live in maine. i'm 15 years old and i suffer from asthma. i live in a state that has some of i have to rates of asthma in the country and according to the main center for disease control, nearly 12 percent of adults in our state asthma compared to nine percent nationally. maine children also suffer from a higher rate of asthma
than the national average. i am one of those statistics. despite means many duties, it has worse air quality than most people realize. because maine is at the end of america's coast, air pollution makes life difficult for those of us with asthma and makes it hard for me to read . for me to live a healthy life , air pollution needs to decrease, not increase. i'm concerned that the supreme court and make major decisions in the next few years will cause air pollution in maine to increase if judge kavanaugh is confirmed. many people may have asthma or know someone who does so what i'm about to describe may be familiar. if you have one of these, but it your mouth and try breathing through it. now imagine only being able tobreathe through this side of the hole for an hour, for a day or even a week . this is what it's been like during an asthmatic attack.
unfortunately i'm not alone in having asthma impact my life. asthma affects 25 million americans including over 6 million children. 2 million people go to the emergency room each year because of asthma. i'm here today because my future and my health may depend on it. i'm play sports, like to swim and do love playing in the sun but my active life changed when i was diagnosed with asthma around the age of 10. oddly, everything became more difficult. i began missing school and my parentsconstantly worried about my health . the year after i was diagnosed, i went through a quarter of the school year and i remember when my asthma attacks were so strong that i was removed from class and sent to the nurses office. most of the time, the nurse sent me home or ask my parents to get medical attention and i remember one attack when i was sick for three weeks.
asthma is the leading reason why kids missed school and is impacting my ability to learn from my teachers and spend time with my friends. although air pollution doesn't cause asthma, it triggers attacks. people across the country have trouble breathing and this should worry everyone. it worries me. in maine we need strong federal regulations on air pollution which doesn't stop at state borders. if state of wind are allowed to pollute more because federal regulations are weakened, it's bad for me, bad for maine and it's bad for anyone in america with a respiratory disease. at why i'm here, i'm concerned if judge kavanaugh is on the supreme court, he would weaken laws that protect my health. he already has. in a 2012 ruling be rejected across state pollution rule based on the good neighbor provision which regulates air that crosses state lines. according to the epa, this rule produces carbon dioxide and nitrogen and will prevent 34,000 premature deaths.
during his time on the dc circuit court of appeals, mister kavanaugh as down other air act protections. these worry me a lot because clean air is a life or death issue for so many people like me. we need a supreme court that will protect clean air because lives depend on it. we also need a supreme court that will uphold the protections to adjust climate change because my generations future depends on it. for me, climate change means life will be even more difficult with more ozone alert days, more adjustments in the air from forest fires and more mold. here's my copy again. next time you have a chance, pick one up and try breathing and see how long you can last. this iswhat it feels like to suffer through asthma .
and in the supreme court if it failed to protect clean air, failing to protect me and millions of other americans. please don't confirm someone to the supreme court with a record like judge kavanaugh, a record that can mean more airpollution, more asthma attacks and more premature deaths for the millions of americans unfortunate enough to be afflicted with asthma like me. thank you for letting me testify . >> now mister mahoney. >> thank you mister chairman, mister whitehouse, and members of the committee. i'm honored to add my voice in support of judge kavanaugh today. i worked with him at the solicitor general's office and i appeared before him on the dc circuit and it's hard for me to think of anyone who is more qualified. i'd like to make two points, first, i want to share my view that judge kavanaugh has much in common with my former colleague, chief justice roberts boom of the senate voted to confirm by a wide margin. second, i want to explain why judge kavanaugh's extraordinary record of mentoring female lawyers is
so important to my profession. in 2005 i testified before this committee in support of chief justice roberts commission and i'm struck by the many similarities between him and judge kavanaugh. some are obvious, both entrepreneurial lawyers, both worked in the white house counsel's office and the solicitor general's office and both are better judges on the dc circuit. they also share a stability and even handedness on the bench that reflects their genuine effort to consider all sides of an argument thoroughly before reaching any conclusions. i've had the pleasure of arguing before both men. like the chief justice, judge kavanaugh asked difficult and incisive questions to be polite and he conveys his thoughts with an open mind. at the aba panel confirmed this morning, my view is widely shared by the bar. don really, solicitor general obama administration call kavanaugh a brilliant dress is a gracious person on and off the bench. and a bipartisan group of
appellate practitioners praise his unfailing courtesy to counsel and to the other judges in his colleagues. in an era where some appellate judges have behaved like broth advocates for one side during world arguments, judge kavanaugh has been a model of the proper judicial disposition. the chief justice and judge kavanaugh understand the proper role of a federal judge. to be independent, neutral, and arbiter. during his confirmation hearing, the justice described judges as umpires apply the rules without fear or favor. i think it is fair to say that the chief justice has done so at various times, both times of the aisle have denounced his rulings. just like the same thing that happens to umpires and judge kavanaugh has demonstrated impartiality and fairness in his 12 years on the dc circuit. he repeatedly ruled against
the bush administration where he worked prior to becoming a judge in his first three years on the bench area he has ruled in favor of an al qaeda terrorist, in favor of a pro-choice democratic interest group and against the republican party and to the surprise of some, even the aclu has recognized that judge kavanaugh has been sympathetic to title vii claims. as he has explained in speeches over the years, a judge must check any prior political allegiances at the door and i am confident he will stay true to that ideal. second, judge kavanaugh handouts as a mentor to women lawyers. i know you've heard the statistics a lot, but they are worth repeating. over half of judge kavanaugh's law clerks have been women. 20 one of those 25 have been hired to work on the supreme court. these women have gone on to serve in all three branches of government in the white
house, solicitor general's office, for federal prosecutors, one is a deputy solicitor general at the district of columbia, another as you just heard serves as a judge on the 11th circuit. it's difficult to overstate how important opportunities like these can be for a lawyers career, especially in appellate practice. credentials like a supreme court hardship or a job at the solicitor general's office unlock doors at the highest levels of the legal profession. very few women have historically held these elite positions. when i clerked for justice rehnquist, almost 80 percent of the law clerks were male and a large gender imbalance indoors today, almost twice as many men as women have been hired as supreme court clerks since 2005. in the most recent term, women delivered only 12 percent of the oral arguments and women make up 19 percent of law firm equity partners. i was one of the lucky few.
i argued 21 cases before the supreme court and this never would have happened without the mentorship of a federal judge like judge cavanaugh does for his clerks. chief justice rehnquist launch my career by hiring me as his clerks and he then arranged for me to argue my first two premature case. i was the first woman to receive the honor of being appointed by the supreme court to argue a case by invitation. with that argument under my belt, chief justice roberts greeted me in 1991 to join him in the solicitor general's office as one of four deputies, a position that has rarely been held by women. these were the opportunities that made it possible to complete with the men who dominate the supreme court bar. for more than a decade, judge kavanaugh has been instrumental in opening the doors for a new generation of women lawyers. these been a teacher, advisor and advocate for women in ways that unquestionably demonstrate his commitment to
equality and that will ultimately reduce persistent gender disparities in the legal profession. in short, judge kavanaugh's independence, his ability and open-mindedness and his generous mentor ship are a few of the characteristics that make him superbly qualified to serve on the supreme court , thank you. >> thank you mister mahoney, now miss smith. >> good afternoon mister chairman and members of the judiciary, thank you for this opportunity. my name is melissa smith and i'm a union member and a schoolteacher at a high school on the south side of oklahoma city. i'm also the proud daughter of a police officer who served his community for 41 years and taught me how to use my voice. he made sure i not only knew my right but i knew how to exercise them. because of my father i went into juvenile justice where i realize most teenagers have no idea that they have rights so i became a high school social studies teacher where
i can open my students eyes to justice and fairness. i teach them under the u.s. constitution, they do have rights. i teach them the impact of the law and their roles and responsibilities within the government so that they can be engaged and active in our democracy. today i am honored to be even to show my students what it means to use your voice and participate in our government at the highest level. as you consider your vote on this lifetime appointment, please consider our experience. oklahoma city public schools is the date largest district for 90 percent of our families are economically disadvantaged. i'm a proud general at us grant high school and we have the most educated staff and incredible students. our district has had to cut almost $40 million from its budget in the last two years. our fine arts but it was/ 50 percent and our library media budget eliminated. our school building was built for 1200 people, just 11 years ago, yet we currently have 2200 members and students.
classroom that have almost 40 students rarely have enough desks for all of them to sit in. it is often first-come, first-served . some teachers don't even have classroom's at all, they have all their belongings, textbooks and supplies on cards and push them from classroom to classroom. i'm telling you about our funding prices for two reasons, first, because judge kavanaugh's stated position on private school bouncers would exacerbate the situation. doctors do nothing else to achievement but do everything to undermine the public schools, yet 90 percent of children in this nation attend . siphoning more running away from public education will destroy public schools. the second reason i'm telling you about our funding prices as i've seen firsthand the collective power of unions allows individuals to band together to bargain for resources for students and teachers. judge kavanaugh has a strong history of siding with big business over the needs,
rights and safety of individual employees. his record shows he sides with employers did not exert their collecting collective bargaining agreement and does not see the need for representation at union meetings. i can tell you for my union, i've learned the power of collective voice. i can advocate for my own working conditions which are the same for my students. unions get voice and agency people who can't find it otherwise. maybe it possible for us to accomplish together we could not do on our own. five months ago oklahoma teachers walked out of our classroom. our legislature passed the $6000 pay raise in an attempt to stop that walkout but we were fighting for more and just take a raise. we were fighting for our students and their needs often go well beyond what you would expect a teacher to take care of you i have a sickly pick up a teenageroff the floor and carried her to the counselor's office . she was sobbing, saying she didn't want to live anymore. thank goodness our counselor
was able to be at school that day. i've seen the terror on the transgender students face and he shared that he identifies as male and then that terror turned to joy when i as a troubled adult accept him for who he is. last week, a teacher wrote a reference letter for a student in his family for their hearing to determine whether or not they can remain in this country. he stressed about it for days because she knew and wanted it to be perfect. her student has never known anything but his life in oklahoma and he is terrified of being sent to a place that is not his home. the morning after the 2615 presidential election was a tough one at us grant. many of our students are undocumented or have undocumented family members. the us grant family rally around oliver students more than usual that day. we don't ask their parents are undocumented, that's not our purpose and so far the us supreme court degrees.
now why am i sharing these experiences with you? because i worry about my students and who will look out for them. i worry that our government is too far removed from the people it serves and the consequences of that are far more dangerous than we realize. and berg, judge kavanaugh's decision will impact not just teachers and students but the futures of my students and for generations to come. the experiences of my students and fellow staff members show there's a real impact on judge kavanaugh's jurisprudence on american futures. thank you for allowing me to be here today. i'd like to end my statement the same way i and every friday in class with my students. be the example, have a good weekend and please make good choices. >> like you miss smith. now mister christmas. >> chairman grassley, ranking member feinstein and other distinguished members of this committee, i am honored and
humbled to appear before you and divorcing the nomination of judge brett kavanaugh to set as an associate justice of the united states supreme court. i've known this nominee for three decades as a close personal friend. i hope my testimony will illuminate a side of kavanaugh that is not often seen in media accounts.i met judge kavanaugh in 1988 during my first year at yale law school when he was a second year law student and in addition to both of us pursuing our love of the law, we watch sports center, a play pickup basketball and love going to yale football games. we became fast friends. the following year we roomed together with six other students in the house behind the yale jim. i've always admired judge kavanaugh's ability to create deep relationships with people, conservative, liberal, athletes, academic, male, female, white, black. one reason for this is he
never assumes he is the smartest person in the room. judge kavanaugh believes he can learn something from everyone, a wonderful confidant, he's always made me feel comfortable, speaking about basically anything. because he genuinely cares how others feel and authentically tries to understand how they think. during law school, i often thought out judge kavanaugh's advice. he would me to understand the issue from all points of view. put yourself in their shoes, he advised me. how would that make you feel? then he'd challenge me to come and of myself that which you ask from others. should he be fortunate enough to be confirmed, judge kavanaugh will bring that same ability and compassion to the supreme court. it's who judge kavanaugh is. since graduation, the same roommate have spent a long year together with an
astonishingly minimal absentee rate and judge kavanaugh has been no exception. these 26 reunions have kept us all close, even as our families and careers amended more time from each of us. i will never forget and long drive i took the pennsylvania for one of our reunions. judge kavanaugh asked questions for the whole ride as i explained by the wilderness at those who can deny thecontinuing effects of slavery and jim crow laws . >> ..
>> times in and outside the country. i drove with judge kavanaugh to boston to watch him run his first boston marathon. judge kavanaugh made the trip to california for my wedding, and i flew back to d.c. for his. while our age is no longer conducive to pick-up basketball games, we have been able to commiserate over coaching our children and learning that the first rule of being a good youths basketball coach is understanding you are no longer a player. our support for one another has been a steady and reliable force as we move through life's ups and downs. earlier this year judge kavanaugh and i, along with other law school roommates and friends, gathered over the weekend for the funeral of the son of another roommate. i witnessed his love, care and support of our friend during the most difficult of times. he attended dinners, participated in fellowship well into the night and spent the day at the funeral service in support of the family. in a time of personal crisis, i
won't need to look far for my friend, because judge kavanaugh will already be there. so you may ask, what does coaching basketball, showing up at each other's wedding, listening the my experiences as a black man living in america or attending a funeral have to do with determining whether judge kavanaugh should become a supreme justice -- supreme court justice? the answer is, it speaks directly to his humanity. judge kavanaugh cares. he is far from being an idealogue. he seekeds to understand before -- seeks to understand before offering an opinion. judge kavanaugh is a tremendous son, friend, husband and father. he's honest, empathetic and intellectually curious. that's the potential -- the person i know. over the course of my life, i have found the true test of a friendship is when support for a friend is, indeed, inconvenient. for me, from the perspective of
a lifelong democrat, it is inconvenient to sport judge kavanaugh, especially during this time of unprecedented partisan divide and polarization among americans. but i know it is the right thing to do. as an american, i'm quite concerned about the attacks on our esteemed institutions like the judiciary. my expectation of any judicial nominee i support, especially when it is for the supreme court, is that he or she possess a powerful sense of fairness and impartiality. as an african-american, i expect the nominee i support to have a deep sense of obligation to protect the interests of those disempowered, particularly those whose voices are too often drowned out of our political discourse and cannot be heard. again, all this requires a judge who's compassionate, humble and principled. judge kavanaugh is such a
nominee. everyone here today is well aware of judge kavanaugh's extraordinary qualifications both educationally and professionally. however, it is judge kavanaugh's humanity that compelled me to come here today to testify on his behalf. for this reason, without equivocation or reservation, i respectfully urge this committee in the senate to confirm judge brett kavanaugh as an associate justice of the united states supreme court. thank you. >> thank you. as chairman of the committee, i should thank all of you for your testimony. i know you have to work hard to do it, some of you have traveled a long ways, so just generally thank you. and then i'm going to ask my questions, and then i'll call on senator whitehouse, and i would ask for maybe 10 or 15 minutes if one of my republican colleagues would moderate while i step out, and i'll be close
by. okay. i'm going to start with you, mr. christmas. and i'm going to, i'm going to say that for four days now we've had a lot of people exercise their public constitutional rights to speak, as you've heard it at this day. afraid of justice kavanaugh or kavanaugh being a justice on the supreme court. we've had three or four panel people right here that you've heard their own testimony. and so there's this fear that he doesn't, might not take into consideration the needs of people less fortunate than he is with various problems that we've heard expressed here. so i think you probably spoke a little bit to this in your testimony, but emphasize for us -- speak not to me, but to the people that have these
concerns. >> well, senator, i understand those concerns. i do not share that fear. brett is one of the most thoughtful, empathetic people i know. i've spent much time with him talking about issues that are very dear to me. he has been generous with his insight. he cares, and i think that the empathy that he naturally exhibits will serve him well, and i would encourage people to understand that this man is thoughtful, is humble and thinks to understand before he makes himself understood. >> from your point -- a follow-up. from your point as a lawyer and as you expect a judge to look at the facts of the case and what the law and be leave their own
perm -- and leave their own personal views out of it, so can you explain to the people that have these concerns about him those things that have to be taken into consideration that maybe don't deal exactly with a person that has special medical problems like you heard here today? >> yes. and i recall brett, when he came to i my wedding. i should say judge kavanaugh. he spent time with my family. i recall him speaking at length with members of my family who had no real knowledge of what it's like to be a judge and be involved in d.c. and the way that judge kavanaugh is. and i was just struck by how easily and comfortably he was able to speak to everybody who he had just met during that wedding. there was a period where my
niece fraughted from howard -- graduated from howard university, and i had mentioned to judge kavanaugh that i may come out. and he arranged for 20 of the members of my family to tour the west wing. and he showed up on a saturday with a couple of his aides. that's the sort of person he is. so i understand the concerns, but the man i know is generous with his time and thought, and i love the discussion about process. he seeks to not be influenced by people outside, and he's one of the most prepared, thoughtful people i know. >> i will end with mr. kramer. i -- not being a lawyer, but i can assume what public defenders do, you're dealing mostly defending people that don't have resources of their own. in fact, that may be 100% of your clientele. you've heard several days tata my colleague from -- that my
colleague from new jersey has expressed concern about people that can't defend themselves in court, the jury system not working the way it traditionally works and mandatory minimums, all that. can you give people of low income that you represent, maybe other problems the assurance that they're going to get their concerns addressed the way they ought to be through somebody that's on the supreme court? >> thank you, chairman grassley. yes, absolutely. and i tried to get that out. the fact, the reason i'm here is because of the fairness that judge kavanaugh has shown. our clients are without resources and tend not to be a very popular group, and judge kavanaugh has shown through my experience with my numerous
arguments in front of him and the opinions he's written a belief in a fundamental -- and i completely share senator booker's views on the criminal justice system. but judge kavanaugh has shown through his opinions in the criminal cases that i've argued as well as his service on the cje committee that i've been involved with, a concern for the fundamental fairness of system and that people should be, even though they are without resources and represented by a public defender, that they should have the best representation possible. and that's why i wholeheartedly support his nomination. and i note one more thing that is, in a sense, to me remarkable. usually a judge who wants to be confirmed for a position or another court would never have a public defender near the hearings talking in support of them. and i think that, again, shows judge kavanaugh's concern for the fundamental fairness of the system, and that's why i support him. >> okay.
senator whitehouse. >> thank you, chairman. may i use your first name? i could call you ms. eastman, if you wanted. >> no, that's fine. >> okay, leia, i just wanted to tell you you have had to live through an experience that no child should have to live through, and what you've brought into this hearing room from that experience has been stunning. >> thank you. >> your testimony was incredibly well delivered -- >> thank you. >> -- and incredibly well prepared, and i hope that not only you, but your friends and family who are with you here today are very, very proud of what you've been able to draw out of that horrible experience you went through. >> thank you. >> take care of yourself, because these things don't go away finish. >> yes. >> but keep doing what you're doing, and do it with pride and confidence, because you really shone today. >> thank you. >> and jackson, may i use your first name as well? i just want to thank you as
well. it may seem a little weird coming from an old guy across a podium, but when i was 13, i was about your size. and i know what it's like to be the small kid. and i just want you to know that when you spoke today, you were the biggest person in this room. and you did a wonderful, wonderful job, and you brought a really important message to us. so to you and to your family and friends who are here, congratulations, well done. please be proud and keep your voice. >> thank you. >> hunter, you and i -- may i use your first name also? at some point, you know, you can say, no, i prefer you call me mr. lachance. >> no, momentummer's fine. -- hunter's fine. >> okay. you and i share a similar predicament. we are inhabitants of downwind states. rhode island, like maine, is a tailpipe state. and if it weren't for the expa,
there is -- epa, there is nothing that our state environmental officials could do to protect us from out-of-state pollution, very often from coal-burning plants and so forth. and we have the same situation you do. we have a lot of kids. and when the air gets bad, you often see them in the emergency room. you have situations in rhode island where we're, you know, you're driving in to work in the morning, and it's a beautiful day. the shun is shining, you should -- the sun is shining, you should be out playing. you know these days. but on the radio, you hear today's a bad air day. and we want little kids, old people and people with breathing difficulties to stay inside. on what otherwise would be a great day for you to be out swimming and playing sports and doing all those things. so the voice that you brought here was very, very important. to each of you, i would say part
of the problem that i have in this whole nominations process is that you are up against enormously powerful forces on the other side. the national rifle association essentially has dominion over congress with respect to everything that has to do with guns. and the ammunition that tore through your friends. the, i don't know what you'd call it, a mania, a fetish, an ideological crusade against providing your family with reliable health care simply makes no sense to me, and yet it's enormously powerful, and we came very, very close to a vote here where it would have been taken away from you. and so -- and, of course, the polluters have almost as much dominion around here in congress as the nra does. they bring in phony scientists who quarrel with the real
science because they're paid to quarrel even if their science isn't real. and they do economic studies that only show the harm to the polluting companies and totally omit what it's like to be you on a day that you can't breathe except like through that little coffee straw. so this is a very one-sided place. and the forces a that have the most money -- that have the most money and that make the most money are able to use it here in ways that keep it very, very unbalanced. and my concern is that the current republican majority on the supreme court and the decisions of justice kavanaugh reflect a desire to enhance that power, to defer decisions that the court could make into this very unbalanced forum, to diminish the regulatory agencies. they have the actual expetites to understand how
chlorofluorocarbons work, complicated things like that. so that's my biggest concern, and i'm not going to take any more time, because i've burned it already. i was really so impressed with the three of you. i just wanted to say thank you, well done. don't ever give up. those other forces may be big, but this is still our country. thank you. >> [inaudible] >> as a public defender, you've spent your career representing defendants who don't have the money for a fancy law firm. >> yes. >> or any kind of a law firm. they have been accused of some serious misconduct. now, when appearing before judge kavanaugh, have you ever felt that a your clients' economic status or charged conduct affected the judge's treatment of your client?
>> no, i would say just the opposite, that they've always been treated without regard to any of those factors. >> how have you ever had a case where you felt your clients' economic situation or charged conduct affected judge kavanaugh's decision in the case? >> i don't think it's ever affected his decision in a case. he examines the facts and the law and decides based on that without regard to those circumstances. >> well, he, he is a judge most well known for his jurisprudence on broad structural issues like the separation of statutory interpretation or -- sometimes his jurisprudence on individual rights gets less attention. for example, his discussions of the importance of mens rea requirements, which i am very concerned about, among many things, and the problems in
sentencing based on acquitted conduct, how has judge kavanaugh contributed to criminal law and the rights of defendants? >> well, in the acquitted conduct, he is bound by the supreme court precedent, but he has encouraged judges as a matter of discretion, which they have, to not use acquitted conduct for sentence. he has, in a number of cases -- some of which i've argued on mens rea -- he has reversed convictions or noted in concurrences or dissents that he believes that people should not be convicted of certain crimes without the proper mens rea. and he's written a number of those cases. so i think in both of those areas, those are important individual rights for my clients. >> well, thank you. ms. mahoney, you've known judge kavanaugh for over two decades since both of you were in the solicitor general's office together at the justice
department. you've also appeared before him in court. now, what kind of a jurist is he on the bench. >> phenomenal. >> do you have an advantage because you had served with him before? >> no, no -- [laughter] i'm sure it wasn't an advantage. >> what's the matter with him? >> yeah, right, i'm sure it wasn't an advantage. he is extremely careful about his work and one of the harder -- hardest working judges out there. and that's the way he was in the solicitor general's office too. he's kind of renowned for his work ethic, for trying to find an answer in the case. and i think he believes that if you look long enough, hard enough in most cases the answer's going to come, and it's just a product of doing the work. >> that's great. how many other lawyers have worked with judge kavanaugh or argued cases before him? you know many of them. >> i don't -- i know most of the appellate bar in washington d.c.
many of them have argued before him, many of them know him from working with him either in the white house -- >> what are their opinions? >> i don't know anyone who doesn't put judge kavanaugh in just the highest category they can come up with. he is, he's remarkable, and people really adore him. i will tell you that, you know, around washington at least in my world when people were debating who would be appointed to the supreme court when justice kennedy retired, the answer from almost everybody that i talked to was, well, it ought to be brett kavanaugh. so, i mean, this was, you know, this is the supreme court bar, the appellate bar in the washington, d.c. area. but there is just really deep, uniform respect for him as a jurist and as a man. >> everybody i know who knows him speaks very glowingly of him -- >> glowingly. >> just like you. >> uniformly glowingly.
>> well, it seems to me he's precisely the type of person we want on the bench. >> it would be a travesty if he doesn't get 100 votes. >> well, now -- [laughter] >> right? >> you put a lot of pressure. >> there you go. just do that. [laughter] >> keep it up. i appreciate that. we're happy to have all of you here. this is very important, and and your testimonies will be given serious attention. let's -- who's next on this -- >> senator blumenthal. >> senator blumenthal, you're next. >> thank you, senator hatch. i want to join in thank all of you for being here. this is another great panel. i want to join my colleague, senator whitehouse, who very eloquently and powerfully thanked ms. eastmond, jackson, cover bin and hunter. you are really shown us how an individual voice can make such a
difference. i also want to thank melissa smith for your comments on how a collective voice can be impactful, and a lot of young people would not have their individual voices but for your service as a teacher. i've always thought that being a teacher, along with being police, firefighter, emergency responders, you are the unsung heroes, our public service employees. i want to thank you for your personal testimony about the importance of the issues that matter in real lives to real people and have real impact. >> thank you. >> and i want to ask ms. eastmond, since we talked about real people and real lives, you know, in connecticut
we have, we had a tragedy similar to the one you experienced. and i lived through an afternoon and then a week similar to what you did in parkland. not the same firsthand experience that you did, but i saw the impact on loved ones and children and parents and teachers. as you did. and i saw the impact on moms and dads like fred guttenberg, who was here earlier in the week as you know, and you commented in your testimony about him. if i were judge kavanaugh who, as you know, said that a assault weapons should not be banned,
cannot be banned under the second amendment of the constitution, what would you say to him? >> that my life, along with all the other youth, is more important than that gun. >> and if he said to you, you know, there is this legal principle that says unless there was a ban or one analogous to it at the time of our constitution or traditionally in our law, what would you say about the real impact of that kind of assault weapon on your life? >> yeah. it's unimaginable. the shooter at my school shot 34 kids in under six minutes. and that gun ended 17 lives on february 14th. that gun ended lives at sanity hook. that gun -- sandy hook. that gun end ended lives all over the country, and there's mass shootings that happen
almost every month. and i believe that that gun needs to be banned, any assault rifle. and he needs to listen to us because our lives are just as important as any american's freedom to own a gun. >> well, i hope that judge kavanaugh's listening to you. thank you very much. thank you, mr. chairman. >> [inaudible] >> thank you, mr. chairman. thanks so much to all of you for being here. my friend and colleague, senator kennedy from louisiana, had to step out for a few minutes, wasn't sure whether be back in time, but he asked me to convey his gratitude to each of you for your testimony and your willingness to provide insights. ms. mahoney, i'd like to start with you. i heard mentioned a minute ago speculation about unfair advantage in court, and senator hatch, i can tell you she always has an unfair advantage in court because she's so good. [laughter] you've always been one of my favorite litigators to watch argue cases in the supreme court. it's an odd little hobby of mine, watching supreme court litigants, and always enjoyed
you arguing. one of the things i've appreciated about your arguments is that you focus on the law. you focus on what, why your client's case is right. and you focus -- you seem to have an approach that echoes something you said a minute ago which is if you're willing to go to the hard work of finding an answer in a case, you can find the right answer. the law will normally supply a correct answer. you seem to believe that judge kavanaugh shares this view. tell me how that can help instill a sense of civility among members of the bar and among jurists, the belief that there's a right answer in the law? >> i think, i think there is a right answer in the law. i think he believes that, and it should instill a sense of confidence in the judiciary because there is sort of this pervasive view that the justices -- or it's becoming more per vase isive -- that the
justices are just partisans, you know, deciding for their team. and i certainly don't believe that's the case. i don't think that's what's going on. there are different ideologies, but i don't think it's partisanship. and i think that justice kavanaugh -- judge kavanaugh, justice kavanaugh hopefully, will perform his role in a way that people will understand that he is just working to get the answer the way he asks questions, the way he probes evenly, the way he shows respect for everyone and the way he explains his decisions and the way he surprises people sometimes with the way that he rules. you won't be happy, republicans won't be happy every time. democrats won't be happy every time. but it will be a product of his reasoning and his effort and his work in the case. and i think americans should be grateful for that kind of judicial approach whether they're republicans or
democrats, and i would hope that we could get beyond some of this polarization. >> as someone who's devoted her career to arguing in pregnant of the supreme court, you can -- in front of the supreme court, you can confirm there is no aisle -- >> there is no political aisle. >> and, in fact, 5-4 decisions are very rare. >> they're very rare. yes, they are. >> ms. tableson, i appreciated your comments. having served as a law clerk myself, i know there's a special bond, relationship that develops between a law clerk and the judge or justice for whom the law clerk is working. one of the reasons for that is you're able to interact with the jurist on a day-to-day basis. not only in seeing, in your case, how judge kavanaugh interacted with his law clerks, but also how he interacted with his colleagues. what can you tell us about what saw and how that would portend for how he would interact with colleagues regardless of their backgrounds and regardless of what some people might identify
as their political ideologies? >> certainly, senator. the d.c. circuit court of appeals is composed of many judges who have diverse views on the law and on judicial philosophies more generally. but at least when i was there, their views of judge kavanaugh are not diverse. instead, they uniformly respect him, they appreciate his collegiality, his civility, his hard work and, ultimately, the fact that he's a straight shooter. he, there are certainly always going to be disagreements, but those are disagreements that he has in good faith. no hidden agenda, nothing like that. he says what he means and he means what he says. i think on the supreme court he is going to bring those same characteristics, and i think he's going to be sort of a uniter for that reason. i think he's going to bring out the best in his fellow justices, should he be fortunate enough to be confirmed, and is going to have great relationships with
justices across the ideological spectrum. >> thank you. ms. smith, i have great respect for teachers. both my parents worked as educators in different capacities at different points in their careers, and they a always taught me to have great respect for my teachers, especially social studies teachers because of the importance of the subject matter you teach. can you help me understand, i understand that resources are scarce and more resources often need to be devoted to public education to make sure that you as a teacher and your colleagues, those with whom you work have the capacity to do your job, to educate people. help me understand the connection between your concern for those resources and the jurisprudential philosophy of this federal judge. ..
with less funding than we have now when you say his position, you don't mean his policy positions because the policymaker but as a jurist deciding on whether or not something is lawful. to say whether the policymakers are empowered to make those decisions, isn't there a difference between those two things? >> yes i know. we often believe whether they be elected officials or judges, they're not supposed to bring their personal views into it and base decisions on the loss but it doesn't team like that's the case, maybe not with judge kavanaugh but there's also a concern that personal views will influence
judgment and a concern that teachers have, that students have and when he has publicly spoken in support of public school vouchers, that's a concern that we have my time has expired, thank you mister chairman. >> senator booker. >> i didn't mind if he kept going. >> we've got another panel waiting i do apologize . first of all, i want to thank all the panelists for coming, i appreciate you participating in this process . while your testimony was heartbreaking and painful, employees with which you spoke of something that i know is horrific and unimaginable was extremely extraordinary. in your specific policy, things that you are advocating for , i know i met with lots of the students from parkland.
and i'm just wondering if you'd give me another opportunity, i also think you are an extraordinarily eloquent speaker but are there any particular policy issues you are advocating for that you could in more detail about what you'd like to see and how it relates to a supreme court justice? >> we're focusing on an assault weapons ban because they are unnecessary. next year i'll be 18 and i can get an assault rifle and why would i need that? high-capacity magazines, we need those gone to. i focus, i want people from congress to focus on the youth and the black and brown communities because that the elephant in the room nobody wants to talk about and there are lives being taken away every day so focusing on the spectrum of gun violence in not only mass shootings but the shooting that happened in every community are just as important . >> i guess what spoke to me a lot because i live in a community and a lot of, even
though my incredible mayor has done a lot to lower the shootings in my city, we had one on my block just this year where somebody was murdered with an assault weapon at the top of the hill where i live and i appreciate your concerns about that and i think for you and the other young people, in many ways your voices can be more powerful than any adult and i want to thank everybody, all the three of you for being there. mister kramer, you said that in general you agree with me on criminal justice issues. that's all i wanted to hear. no sir, in all -- >> good enough. >> no sir, can you give me, i tried to make a point yesterday about the balance of power is in american law we seem to have a right to a jury that seems to me, i'm not saying you should agree with me on this, i want you or your real opinion but it's
shifting dramatically in a plea bargain is not a fair bargain but prosecutors have a lot more of a threat of jeopardy to offer that makes people take a plea bargain because they are too afraid of going to trial and when they do go to trial, the chances for success are pretty low and i know that public defenders often will let people know what the reality is. does that shift in our american criminal justice? >> that's a great question and absolutely. over 90 percent of the cases in federal court pled guilty last year and similar statistics in state court and i would not call it a plea bargain, i would call it a plea and position. the terms are given, you take it and you're right about mandatory minimum sentences doing the power in the system, it's all in the prosecutors hands. i've been around a long time and seen a huge powershift as
a result of mandatory minimums and draconian sentences, especially of people with color. it's affected disproportionately you are right, it's been a huge shift . >> i see young kids getting caught up for drug crimes that kids in privileged communities, i went to yale, went to stanford, lots of drugs. iwill not make any personal confessions right now but lots of drugs . and so here, your attributing charges for doing things that the last three presidents admitted to doing and they and then they are presented with a plea. i've had kids sit in my office and say i was terrified facing your mandatory minimums. as i told me i can get out right now and i and up with a criminal conviction that they don't realize it's a lifetime sentence. can you make this point for me that this idea of a right
to a jury trial, that's kind of being eroded in the united states of america, would you agree with me? >> i would call it a disappearing right and you're right, since you didn't make any concessions i don't feel i have to make any either but you're right. you keep talking about the neighborhoods, in various neighborhoods if they were engaged in in other cities or suburbs that would just be, they would not be tolerated by a population there but because of a powerless population in the neighborhoods where it does occur and so you're right on both points about the tactics that occur in various neighborhoods and write about the disappearance of the jury trial. >> my time has expired. i want to say something to mister cruz, i want to testify to your character because you said something that wasreally important . about the partisanship and tribalism often and how
friendships are tested you were speaking to what you know of him as a friend, not as a judge but as a friend. i want to make an open offer because you said you stopped playing basketball because of your age. the senate has a basketball game and i promise there are age-appropriate and i promise you would be like michael jordan if you came and played among us. >> we have two things left for this panel. senator kennedy, you wanted some time and then senator loudermilk. i guess after hirono two. go ahead senator kennedy's i had to step out before i heard your testimony. i just want to thank you for it and i know you've each spent a lot of time putting the testimony together, the stuff didn't just write itself.
i mentioned to the earlier panel, i enjoy this immensely. i learned a lot from listening to your different perspectives and iwant to thank you . >> mister chairman, i have questions for the next panel i think this panel for being here. >> i'm going for courtesy to the ranking member, he wants to speak for a minute to some people on the panel. >> thank you very much mister chairman, i wanted to make one point because there's so much discussion about mens rea and i wanted to provide some context for this. i've read judge kavanaugh's decision on mens rea which have focused on individual defendants and individual defendants face very significant terms of incarceration. and i see no objection whatsoever in any of the decisions that i'veread of his . i have also been at the center of the effort to try
to negotiate a sentencing and reentry reform package along with senator cornyn and senator grassley and senator booker and lee and others . and as we did that, what began to pop up and what popped up through the industry funded groups was a late arriving desire to reform mens rea. >> and the obvious motive for that is a group of offenses, a category of offenses that are called public welfare offenses. and those are offenses in which we say particularly about a dangerous instrumentality like a benzene or dynamite or something like that that at some point if you're a big corporation or something goes wrong, you spell your 10,000
barrel, that's a crime and we don't care what your mens rea, what your degree of intent is. your job as a big corporation , that police or has dangerous things is to make sure that doesn't happen. that's why you put that marker out there and it's a well-established type of criminal conduct, is not, mister cramer ? >> absolutely, public regulatory offenses, there's a number of them thathave no mentor area requirements . >> i worried about is out there, there's a marker and this will be telling if it happens is if this body of precedent that judge cavanaugh is building up with respect to individual defendants who face significant terms of incarceration all of a sudden as a very big market suddenly becomes the basis for an attack on these public welfare offenses. i've seen that maneuver begin to happen in congress and it starts to happen in the courts, to me at least that
would be another telling sign of the big influences and interests that operate so much of what happens in our court systems coming in to see the prize and i will that we don't go there. >>. >> did you want me to comment? >>. >> go ahead and respond. >> the only thing i can say and i know exactly what you're talking about is that judge kavanaugh, the opinions he's written are in cases that have a mens rea requirement. knowing willfully and i've never seen him right that it should be extended to public with. in other words, he's going with the will of congress and what congress enacted and i've never seen him takethat step in an opinion and i hope he never does . >> of a crime without a mens rea requirement. >> once again, even though i think we know you go to a lot of work to do this or the
>> with the people of the second panel or the last panel from the table please. >>. >> before i introduce the next panel and is where the next panel, i want to take the opportunity to give appreciation from the chairman of the committee for our, all the staff work that goes into this. and i've been fortunate as a senator to have an
outstanding staff over many years, and i hope they know how much i appreciate them , both committee staff and the personal office. before closing this hearing today i'd like the name first is typically assigned to work on his nomination hearing . some are my permanent staff by chief counsel for nominations mike davis and including laura mailer, steve canning, jessica booth and catherine willy. and then others are here only temporarily because we get additional resources when we have a supreme court nominee, so i want to name them and say thank you or their extraordinary work and commitment to public service. the special counsel added specifically for this supreme court nomination were led by andrew ferguson and included tyler baxley. lucas koslow, colleen, making the galleon and colin weiss.
the law clerks were communal peoples, abby: stein, kim rodriguez, jerry o camacho, elizabeth donalds, bob mansion, nathan williams, sam atkinson, gallagher, michael tallent, asher perez, garrett gentry as did jacob raymer as an intern. so i think the legal team for their important parts in the senate's consideration of judge kavanaugh. i think before i introduce you i would ask that you stand so i can swear you, please. do you swear that the testimony you're about to get before this committee will be the truth, the whole truthand nothing but the truth , so help you god? thank you all very much. i know a lot of you hear,
names i recognized, your famous around town and famous in history so i probably won't do justice to your introduction. monica monica masso is a real estate agent, washington dc. she's known judge kavanaugh for 25 years. john dean why don't knock person but i've known since before i got to congress by his reputation, served as richard nixon's white house counsel in 1970 and 1973, and then of course the famous lawyer paul clements, the partner of kurt lennon and then alice, served as a listener general united states 2005 to 2008. and it has argued over 90 cases before the supreme court. judge kavanaugh and mister
clements clerk at the same time on thesupreme court , judge kavanaugh clerk for justice kennedy and the justices big shoes judge cavanaugh is nominating to fill when mister clements clerk for the late justice professor rebecca ingber, i hope that's right is an assistant professor oflaw , boston university school of law, professor adam white has had me on panels when an organization he and he's also from iowa. not right now from iowa but was born in dubuque, iowa. i talked about you in my opening statement this morning. officer adam white is assistant professor , george mason scalia law school and executive director of seaboard and great center or the study of administrative state. he is also a research fellow at the hoover institution and a member of the
administrative conference of the united states and also i had a chance to meet your parents about an hour ago and they came out just basically for you. professor lisa, is that right? is justice william bray j brennan junior professor of law at georgetown university law center. professor jennifer damascus served as a law clerk for judge kavanaugh from 2006 to 2007 and went on to clerk for justice clarence thomas. she's an assistant professor of law at george mason scalia law school and is a counsel to the law school of roy, mccarthy, park. professor peter shane is jacob e davis and jacob e davis the second chair in the law at the ohio state university maurice college of
law. so will you proceed? >> thank you mister chairman. mister chairman grassley, ranking member white house and members of the committee, i am honored to be here to address you in support of my friend and my daughter's favorite coach, the honorable kavanaugh. my testimony today will not be from a legal perspective but from a personal and parental perspective. consider it more about the person in the nominee. i have known judge kavanaugh for many years but in recent years have seen him on a regular basis thanks to his position as coach of the cyo girl in the sixth grade basketball team at the sacrament school and in our house, he is not known as judge kavanaugh but as coach k. he was my daughter's code for two years. our first year, his daughter was in fourth grade and therefore ineligible for the
team. he still coached. in my book, that alone qualifies him for sainthood. as a high school and college player, coach a has a job the requisite basketball knowledge. more importantly, he had the other necessary attributes of patience, fairness and diplomacy and he had been in states. fairness with young players and opposing teams, patients with boisterous parents and diplomacy with referees were on their fifth game ofthe day and making questionable calls . in a few hours a week of practices and games, judge kavanaugh teaches much more than the fundamentals of basketball. all of the other important concepts were there too. teamwork, hard work, commitment, setting and achieving goalsand striving to be your best . it is an enormous task to communicate all of that the young girls in so little time
, but is called demeanor got the message across, no yelling or gavel was necessary. course, the contribution to our community extends beyond basketball. school options, school drives and service projects are abundant at blessed sacrament and the brett and ashley are always there to participate. this leads me to another personal perspective. it is relatable to everyday americans. inthe public eye, supreme court justices are strictly cerebral , ethical, humble and courageous . he is all of those things, but i am one of the everyday americans who season getting his children to practice, managing for games weekend, serving as electorate church, running on high school track and socializing with friends. >> as my final today, i would like to read coach
kavanaugh! my daughter from his end of the season player evaluations. i hear this with the most confident that every player on the team received the same honest, appreciative, supportive,heartfelt and confidence building message . stated thanks grace, you are an excellent athlete and were agreat contributor to the team. we loved your spirit and attitude . we really enjoyed coaching you and wish you all the best. we look forward to having you on the team next year. keep up your great spirit , attitude and work ethic and you will be a big success in all you do. which kind of makes me want to go back to grade basketball. >> thank you for the opportunity to share this personal perspective. as a ucla basketball coach john wooden said, young people need models, not critics . i think this final note says it all as the model kavanaugh has been to our children.
i know the parents of his players as fortunate as i do that our girls have such a wonderful mentor. through basketball, he taught them the skills they will need not only first season but for a lifetime. thank you. >> mister dean. >> mister chairman, ranking member. members of the committee. thank you for the invitation. in my allotted time i'd like to take a few points from the statements i have submitted for the record. i've made overwriting points in the submitted statements, first, judge kavanaugh joins the court, it will be the most presidential powers friendly court in the modern era. republicans and conservatives only a few years ago i know well thought the expansion of
presidential power and executive powers, that's no longer true. kavanaugh is a very broad view of presidential powers. for example, he would have to congress immunized the president stumbled civil and criminal liability. under judge kavanaugh's recommendation, a president shot somebody in cold blood on fifth avenue, that president could not be prosecuted while in office . also, it's not clear to me listening to the testimony that he really believes nixon's, us versus nixon was correctly decided. a second general point from my submission, a very vital i think process point. ranking member diane feinstein stated on the morning of september 4 just before the hearings open after participating in nine supreme court confirmations that had never been so difficult to get access to background documents related to a nominee asking for
proceedings. unsuccessfully, the minority sought to postpone these hearings until all the requested documents were provided. chair however declined to consider the motion that would make review possible. this committee is deeply involved in the final phase of vetting the supreme court nominees. based on personalexperiences , with the confirmation or example of william (studying the confirmation of clarence thomas, it's clear that there across-the-board failure to believe that the nominees. it hurt the court and the american people. cause of the withholding of documents, judge kavanaugh may be traveling the same path as rehnquist and thomas. when writing a book that i did several years ago, the rehnquist choice, i explained how rehnquist was selected by as one of the two openings
that occurred in 1971. also reported my sad discovery that rehnquist had dissembled during his confirmationproceedings . he did however notwithstanding all statements, be, and associate justice. when ronald reagan nominated him to be chief justice in 1986, again he was not invented. and there no hearing he was confronted not only with his earlier false statements but new material that resulted in new false statements. all the court historians that i've examined in court dollars find it clear and convincing evidence that mister rehnquist lied in his two confirmationproceedings. this hurt him and it hurt the court . because justice thomas was not fully vetted, his career on the court has been under a cloud as well. thomas's truthfulness
vis-c-vis professor anita hill's claims of sexual harassment have never been fully resolved. nor has the controversy ever ended. a definitive study of this controversy was undertaken in 1994 by journalists jay mayor in jill abramson's, the spelling of clarence thomas. they found a preponderance of evidence supported anita hill's claims. this controversy has received renewed attention with the me to movement which is growing stronger and it's not going to disappear. in fact, justice thomas's truthfulness is an issue in this year midterm elections. the democratic candidates in massachusetts has made impeachment of thomas for his false claim that during his confirmation one of the planks of her campaign. in closing, judge kavanaugh's nomination has raised issues about the truthfulness of his confirmation to me, a judge on the dc circuit.
his answers to this committee have not resolve the issue. frankly, i'm surprised judge kavanaugh has not demanded that every document that he's ever handle be reviewed by this committee. unless of course there's something to hide. thank you. >> mister clements. >> thank you chairman bradley, senator whitehouse. it's a great pleasure and honor to return to the senate judiciary committee where i served as staff some two decades ago. >> .. >> .. >> immediately stood out. unlike most of the rest of us whose legal experience consisted of a single appellate clerkship,
brett came to his supreme court clerkship with two clerkships under his belt already on the ninth and third circuits, and he a had also served in the office of the solicitor general where he spent a year following the court closely and working on briefs and options and other supreme court filings. as a result, while the rest of us were feeling our way rather blindly through the process of sorting through our first sets of briefs, brett was already fully versed in the court's certiorari criteria and stood ready to handicap the likely quality of upcoming oral arguments by members of the supreme court bar. brett quickly became seen as a resource on matters of high constitutional doctrine. what really stood out about brett was not just his knowledge of the court and the law, but the undeniable fact that he was a well-rounded, likable and
unpretentious person. you expect a supreme court law clerk to have a first rate legal mind, you do not necessarily expect him to have a sweet jump shot is. i can tell you from firsthand experience that brett had both. he was as comfortable talking about how to break a full court press as he was discussing the rooker-feldman doctrine. for all these reasons, brett was admired across ideological lines. none of us was the least surprised to see us become the first to argue a supreme court case and the first to become a federal appellate court judge, beating out justice gorsuch by a nose. we have remained friends ever since, but i am not here today testifying out of friendship. rather, i am testify thing today because of what i have seen in observing judge kavanaugh in his over 12 years of service on the federal appellate bench. by happennen stance, i was in
the courtroom to witness one of judge kavanaugh's first oral arguments as an appellate judge. he was incredibly well prepared. he demonstrated a mastery of the record and asked penetrating questions of both sides. he carefully listened to the arguing attorney's answers as well as questions emanating from his more seasoned colleagues. none of this surprised me, but i was impressed by the profound interest in the legal arguments in the context of a e petition for review from a decision of the federal energy regulatory commission, or ferc. at least in my days as a law clerk on the d.c. circuit, ferc cases were not among the most coveted. they were notoriously complex with long administrative records filled with strange acronyms and doctrines unknown in other areas of the law. i feared for my friend that he would be saddled with the e assignment of the ferc case while his more senior colleagues authored opinions in higher profile cases addressing more
readily-accessible doctrines. i'm quite sure that judge kavanaugh did not mine. as i've seen in the ensuing 12 years, he approaches every case with the same thorough approach, regardless of the degree of notoriety or the agency involved. he recognizes that each case is the most important case for the clients is and lawyers involved and treats each case accordingly. let me close with just a few words about judicial temperament. the concept has been discussed in the course of other judicial hearings, but the topic has received less attention in the course of these particular hearings because judge kavanaugh has so plainly demonstrated the requisite temperament over his years on the d.c. circuit. that said, i believe it is a mistake to think of it as if it is a binary characteristic, something a judicial candidate either has or lacks. instead, there are degrees of judicial temperament, and i'm here to tell you based on my own experience arguing in front of
judge kavanaugh that judge kavanaugh has judicial temperament in spades. he is respectful of counsel in both his demeanor and in his level of preparation and engagement. nothing is more discouraging to litigants or their clients than a cold or underprepared bench. there's no fear of that with judge kavanaugh. he understands that appellate cases are serious business for the parties involved and prepares accordingly. so i think based on my experience knowing him just as a friend and as a judicial colleague -- as a judicial officer, by any conventional measure i believe he is enormously qualified to serve on the nation's highest court. i'm confident he will serve with distinction, and i urge you to vote for his confirmation. >> thank you, mr. clement. now professor engler. >> thank you, chairman grassley, ranking member whitehouse and distinguished committee members. it is an honor to testify before with you today. i'm an associate professor at the boston university school of law, and previously i served in
the state department office of the legal adviser where i worked with colleagues at the departments of justice and defense, in the intelligence community and at the white house on matters involving international law and war and executive power. so my testimony will focus on judge kavanaugh's jurisprudence in these areas. judge kavanaugh has clearly had an especiallial career, but i believe there are some concerns his jurisprudence raises that should be addressed before final consideration of his nomination. in particular, and as i explore in more detail in my written remarks, judge calf gnawing's opinions -- kavanaugh's opinions reveal he is exceedingly reluctant to impose checks on the president's power in the national security sphere. this is not an area where he has merely followed precedent with his hands tied. to take one prominent example, in a case involving the president's authority over detainees in guantanamo bay, judge kavanaugh wrote an 87-page separate opinion to argue that
the court should not look to international law, a position that is contrary to over two centuries of settled precedent. in fact, all three branches of government have long looked to international law to define war powers over the entire course of this nation's history. when congress authorizes the -- [audio difficulty] it does so against the backdrop of that history. the supreme court has ratified this understanding repeatedly, including in opinions that look to international law both to read the president's powers expansively and to determine the outer limits of that power. they looked to international law to find that the 2001 statute authorizing the president to use military force also authorizes detention as well as limits on that detention. and perhaps because these rules have always guided our understanding, international law is one of the only tools the
courts and the political branches have for interpreting war powers. thus, it is often the only limiting principle for interpreting the outer bounds of the president's wartime authorities. finish now, i want -- now, i want to clarify a misconception about international law. these are not rules imposed on us by some outside source. the international laws of rules -- the international laws of war, for example, are rules that we have affirmatively chosen to be bound by specifically in wartime and which the united states, including the u.s. military, has always played a principle role in shaping. these are rules that benefit our military as well as all of us. these rules are so built into the national ethos that we may forget they derive from international law. for example, we know that it is unlawful for the president to kill families of terrorism suspects. why? because the international laws of war prohibit the targeting of civilians. and we have always interpreted
the president's authority to wage war in light of those rules. if the supreme court were to adopt judge kavanaugh's position on this or other areas where he has invoked national security to dismiss the court's role in checking the president, the result would be that the president could wield nearly unreviewable discretion when he invokes war or national security. for my time in government, i know there's a great deal of thoughtful decision making and robust process that happens inside the national security apparatus. but i also saw firsthand the importance of the court's role in checking presidential power even when the president invokes war or national security. mistakes happen. bad decisions may come about through incompetence, through insufficiency of facts, exigency and even, yes, through the intentional abuse of power. even a robust process can lead to presidential overreach. after all, the premise of the separation of powers is that each branch will seek to enhance its own authority, and the other branches -- including the
courts -- are there to impose limits. moreover, while judge kavanaugh would have the courts defer broadly to the president in this area, the reality is that the executive branch looks to the courts to understand parameters of its authority. when a judge defers broadly to the position that the government takes in court, a position taken not under the best view of the law standard, but rather that of a defensive litigant trying to win its case, the court's deference often has the result of a merits decision, and that becomes the law for the executive branch going forward. if the court -- >> [inaudible] >> if the courts never push back on the government's litigation positions, the result is a one-way ratchet of expanding executive power. and because so much of executive branch decision making in this realm happens in secret, accountability through public scrutiny alone is often insufficient. judicial review is at times the only means of holding the president accountable. for these reasons and those in
my written testimony, i urge you to consider the dangers in the judicial approach that cedes to the president unreviewable discretion in this realm. thank you for inviting me to testified today. i'd be pleased to answer any questions anybody has. >> thank you, professor. now professor white. >> thank you. chairman grassley, ranking member whitehouse, members of the committee, thank you for inviting me to testify in support of judge kavanaugh's nomination. chairman grassley, as you very kindly mentioned, my first education in civics and history came from the teachers in dubuque, iowa, and the university of iowa. it's a real pleasure to be here to discuss judge kavanaugh's own deep can appreciation for our constitution and the rule of law as exemplify by his 300-plus judicial opinions and a deep record of legal scholarship. his record is particularly impressive on questions of administrative law; that is, the body of law that governs administrative agencies and defines the agencies' relationships with congress, with the courts, with the
president and with the people. in my longer written testimony, i focus on four important aspects of judge kavanaugh's approach the administrative law. today i'd like to highlight two issues in particular. the first involves doctrines of judicial deference to administrative agencies' legal interpretations. not long ago skeptics of judicial deference were found primarily on the left, now increasingly judicial deference also finds critics on the right. i'd like to echo a lot of professor ingber's testimony on the problems of excessive judicial deference to the executive branch. not just in matters of foreign policy, national security, but also with respect to executive regulatory agencies. throughout his time on the d.c. circuit, judge kavanaugh has faithfully applied the supreme court's increasingly complex approach to judicial deference including chevron deference, especially in recent cases involving agencies claiming
immense, new regulatory powers you should the guise of decades-old -- under the guise of decades-old statutes. my second point goes to the design of administrative agencies. from time to time, congress has passed laws giving a certain degree of independence to the leadership of federal regulatory commissions or other officers by limiting the president's ability to fire those to officers at will. making officers independent from the president raises profound constitutional questions because, as professor amar explained this morning, the constitution vests the president with executive power. the constitution obligates the president to take care that the laws are faithfully executed. and when you break that link of accountability between officers and the president, you undermine both of those constitutional commitments. so on the limited to occasions where the supreme court has affirmed statutes giving regulatory commissions or other officers a measure of independence, it has done so carefully and subject to crucial limits. judge kavanaugh has followed
those judicial precedents very carefully in cases where congress improperly attempted to vest even greater independence in newly-created regulatory agencies. beyond the limits previously allowed by supreme court. can and this includes the phh case, as professor amar noted this morning. in applying those supreme court precedents, judge kavanaugh has attracted can criticism from those who would like to see administrative agencies be made even less accountable to the courts, the president and the congress. now, in an era when agencies are often eager to enact policies that congress hasn't legislated, some of judge kavanaugh's critics favor those energetic agencies over congress. and in a system where an elected president might disagree with policy preferences of an administrative agency, some of judge kavanaugh's critics favor making the agencies independent from the president rather than accountable to the president. and in an era when the administrative agencies have been increasingly eager to
impose unprecedented and immense regulatory programs despite the lack of clear authorization, some of judge kavanaugh's critics favor judges becoming more deferential to agencies. not less. i think judge kavanaugh, in applying the supreme court's precedents under the constitution, has the better of these arguments. his approach, in my opinion, is administrative law at its best. empowering agencies to administer the laws efficiently and effectively but always subject to the deeper fundamental commitments of our constitution's structure and rights. for that reason, i hope that you'll give your advice and consent to the appointment of judge kavanaugh to the supreme court. thank you for this opportunity to testify. >> thank you, professor white. now professor hensarling. >> microphone? >> push the red button. or whatever color the button is. >> thank you, chairman grassley and ranking member whitehouse, for inviting me to testify here
today. i am the justice will y'all j. brennan jr. professor of law at georgetown university. i will testify about judge kavanaugh's views on administrative law. they're somewhat different from the views we've just heard. administrative agencies are at the heart of administrative law. these agencies are the institutions you know by their initials, the epa, the fd a a, the ftc, the fcc and so on. they are the institutions that do to to day to day work of government. staffed by experts, created and set in motion by congress and subject to requirements of public input and reason-giving. administrative agencies combine expertise, politics and deliberation in a way other institutions do not. they're responsible for everything through adjusting air pollution to enforcing rules against financial fraud. they're essential to the daily business of government. judge kavanaugh would limit the ability of congress to structure and empower administrative
agencies to do this important work. he would eliminate congress' power to provide agencies with some measure of independence from the president by protecting their top officials from being fired for political reasons. he would also erase congress' power to give agencies legal authority to deal with the most important problems we face unless congress speaks with precise and crystall are ine clarity. his opinions read as if they are addressed to the administrative agencies themselves, but make no mistake, judge kavanaugh's sights are trained on congress and its power to structure and empower administrative agencies. judge kavanaugh believes that the basic problem with the structure of government today is that the president has too little power and that congress has too much. judge kavanaugh believes that one of the constitutionally-guaranteed powers of president is the power to fire agency officials for any reason he deems sufficient, even where congress has made a different choice. yet longstanding supreme court
precedent confirms congress' constitutional power to create agencies that are relatively independent from the president. judge caf a gnawing's approach to this precedent has been to treat it grudgingly and read it narrowly. once on the supreme court, judge kavanaugh would be able to cast this precedent aside, and in doing so, restructure modern government. the result would be a super powerful president, a diminished congress and a corrosion of the checking and balancing that the constitution contemplates. under judge kavanaugh's constitutional theory, the president would be able to exercise undie luted control over all of the administrative agencies. ironically, judge kavanaugh has thus taken an instrument that is aimed at checking concentrated power -- that is, the separation of powers -- and turned it into an instrument calibrated to increase the power of already most powerful person in the government. judge kavanaugh also has a cramped view of congress' power to delegate crucial jobs to administrative agencies. he has indicated that his
preference would be to discard or drastically pare back longstanding precedent giving agencies deference when they interpret statutes that congress has charged them with implementing. the result would be uncertainty and disruption as agencies, citizens and courts adjusted to a wholly new approach to statutory interpretation. even more damaging, however, is judge kavanaugh's view that congress may not empower an agency to issue a major rule -- that is, a rule that has great economic significance -- without giving the agency a precise and crystal clear instruction to that effect. this approach would perversely disable agencies in the very circumstances in which we need them the most. it would skew i statutory interpretation against agencies' power to undertake protective regulatory programs that run counter to judge kavanaugh's own political preferences. and it demands a legislative clarity that judge kavanaugh himself has said is difficult to achieve. worst of all, it is quite clear
that judge kavanaugh would apply his strict new principle of interpretation only to affirmative regulatory initiatives and not to deregulation or failure to regulate. this is not a neutral principle. judge kavanaugh often says that his motivating force is the protection of individual liberty, but the liberty judge kavanaugh embraces is badly skewed and terribly smallful it is the liberty of powerful groups to do their business unhindered by government rather than the liberty that comes from meaningful government protections against harmful human behavior. in the name of liberty, judge kavanaugh has rejected rules addressing air pollution, climate change and financial fraud without acknowledging that in such cases liberty sits on both sides of the legal question. there is on one side the liberty of regulated groups to go about their business unimpeded by federal law. there is, on the other, the liberty of the rest of us to go about our lives at home, at work, at school and in our communities with a reasonable
assurance that the government has our back in protecting us against coming to harm at other people's hands. thank you. >> thank you, professor. now professor mascot. >> mr. chairman, ranking member whitehouse and members of the committee, thank you for the opportunity to testify today. i'm honored to speak in support of my mentor and former boss, judge kavanaugh, and to share with you why i believe he'd be an outstanding supreme court justice. so my testimony will highlight three aspects of judge kavanaugh's character and judicial service. first, his commitment to mentorship and consideration of diverse perspectives, next, his fair-minded and careful consideration of legal questions, and then finally, his commitment to following the law independent of personal policy preferences. these are qualities that i've witnessed firsthand as judge kavanaugh's law clerk and then as a student of his opinions over the years. i served as a law clerk to judge kavanaugh during his first year on the bench, and already at that time judge kavanaugh
demonstrated a commitment to seeking out diverse perspectives. our group of four clerks came from different parts of the country, had diverse racial backgrounds, grew up among distinct religious traditions and graduated from ivy league as well as non-ivy league law schools. judge kavanaugh's decision to hire our group of clerks showed his value for perspectives of people from different walks of life, and the judge values hard work, achievement and determination, not any specific pedigree. we routinely had lively discussions in the judge's chambers as he prepared each month for oral arguments. the judge encouraged us to ask tough questions of him as he prepared and to debate legal issues with him and with each other. the judge wanted to hear and consider all sides of an issue, apply the law fairly and help train us to bring more rigor and precision to our legal analysis, skills that have stayed with me throughout my career so far and now as a law progress, i view it as part of my job to pass along those skills to another
generation of students. in addition to training us professionally, the judge also mentored us on a more personal level. we had regular lunches with the judge where we'd discuss our families, our professional aspirations, sports. judge and mrs. kavanaugh had us in their home for dinner during the holiday season, a tradition that continued for many years. and judge kavanaugh's devotion to training and mentoring female and male leader in the legal profession does not conclude at the end of a clerkship in his chambers. he's provide add vice at every major point in my career since the end of my clerkship more than 11 years ago and also branches out to assist young lawyers far beyond the four corners of his community. he speaks to student associations and regularly teaches courses the students on law school campuses. judge kavanaugh's record of mentoring young lawyers and his practice of hiring law clerks with diverse life experiences demonstrate his commitment to giving back to the legal profession and show that he has an open mind.
judge kavanaugh knows the impact that members of the judiciary can have on the legal profession, the state of the law and individuals in the real world. judges take an oath to decide cases according to the law and the constitution, but care for people and the legal system in its entirety can make a jurist a more careful, modest and thoughtful judge. judge kavanaugh's determination to consider all relevant issues and hear discussions from all sides also shows his humility and his commitment to equal justice under the law. during my clerkship, he approached each case with the same level of care regard less of the identity of the litigants or the legal issues presented. he considered all relevant statutes, precedent and history, and he was conscientious when writing his opinions. he'd work through scores of drafts, wanting his decisions to be precise, clearly written and accessible to the public. i've become a professor who teaches and writings in the areas -- writes in the area of administrative law and the
constitutional separation of powers, and serving as a clerk for judge kavanaugh prepared me to write carefully, consider all sides of an issue. judge kavanaugh's fair application of the law, his mentorship of young lawyers and his commitment to constitutional principles and an independent judiciary demonstrate, i believe, that he'd be an excellent supreme court justice, and i strongly support his confirmation. thank you. >> professor shane? thank you, professor mascott. >> thank you, chairman grassley, senator whitehouse and distinguished committee members. thank you for the opportunity to address you today. in this committee's consideration of any potential supreme court justice inevitably immerses you in profound constitutional issues. no issue before you now is more important than judge brett kavanaugh's approach to questions of presidential power and accountability. one straightforward constitutional principle framed any sound analysis of these
questions. that principle is that no one, including the president, is above the law. my concern that judge kavanaugh both on and off the bench has crusaded for an extreme interpretation of the president's constitutional powers that could effectively undermine a president's accountability to law and to this congress. it is by no means the view historically associated with conservative constitutionalism. in the coming years, the supreme court may face a host of issues, testing the justices' commitment to a presidency subject to effective checks and balances. some issues may arise because our president and some of his closest associates stand at the suspect of an ongoing investigation of an election campaign tainted by covert foreign involvement and multiple potential crimes. some issues have already emerged because this president has refused to distance the performance of his public duties from those commercial activities that enrich his private fortunes. let me list some of these questions for you.
one is whether a president is potentially liable for obstruction of justice if he -- and i'm quoting the statute -- corruptly endeavors to influence, obstruct or impede the due and proper administration of the law, unquote, through an official act. the president's lawyers say no, which is almost certainly both wrong and dangerous. another is whether a president may relieve himself of criminal liability through self-pardon, a power that president trump has said he absolutely has. a third is whether an incumbent president may be indicted while in office. a fourth issue is whether congress or a court may subpoena presidential records and even presidential testimony in connection with investigations into the 2016 campaign. a fifth is whether a president is constitutionally entitled to personally direct the activities of all federal criminal prosecutors including special counsel robert mueller. with regard to the president's business dealings, a case is already underway concerning the president's attempt to exempt
himself from the reach of the constitution's e emoluments clauses. the president takes the position profits he pockets from foreign and state governments patronizing his properties are not the business of this congress. i am fearful of judge kavanaugh refereeing these questions for three reasons. first, he explicitly adheres to the tenets of a theory of the constitution called unitary executive theory. this extreme theory could give the president total control over the actions and decisions of any executive branch official. if it became law, congress would be unable, for example, to enact statutory limits on the scope of presidential supervisory power or an independent prosecutor. a theory subversive of effective checks and balances which misreads our constitutional history and which the supreme court has so far wisely rejected. second, judge kavanaugh's service in the george w. bush white house coincided with that administration's advocacy of a
host of dangerous and unprecedented claims for the reach of presidential power. during his first six years in office, president bush raised nearly 1400 constitutional reservations regarding roughly 1,000 provisions of over 100 statutes. more objections, more than three times the total number of objections raised by his 42 predecessors combined. after judge kavanaugh left his role, the pace of bush signing statements slacked off. this fact raises the question to what degree judge kavanaugh was responsible for urging unfounded claims of presidential power. finally, while on the bench judge kavanaugh has approached issues of executive power with an advocate's agenda. his most important opinions on the d.c. circuit rooted in unitary executive theory appear in cases where the court had no need to reach constitutional issues at all. he has shown himself willing to draft constitutional doctrine from whole cloth in other words to advance his precommitment to
extreme presidentialism. our current president daily expresses his contempt for democratic institutions and the rule of law. he believes that all three branches of government -- not to mention the press and the private sector -- should heel to his personal command. he chafes at the constitution's restraints on his power. now is a dangerous moment to elevate to the supreme court any justice who would weaken the president's account blght to law. accountability to law. i've elaborated on these points in my written testimony and would be happy to discuss them further in response to your questions. thank you so much. >> before i take my five minutes, i'd like to -- since this is, i'm going the turn this over to senator kennedy to finish the meeting. he'll moderate. but i thought i ought to, first of all, thank the whole panel for participating. and then i want to thank all my colleagues on the committee, both republican and democrat, for their cooperation throughout these four days of hearings. and except for the first hour,
fifteen minutes on tuesday, they all went very well. [laughter] >> even that went well. >> in the end. [laughter] >> he's looking at you, senator whitehouse. [laughter] >> so anyway, i do appreciate the cooperation that we've had the last, the last 31 and a half hours. [inaudible conversations] >> okay, yes. my first question is to professor henzarling and to professor shane. this isn't a question i had my staff prepare, but both of you spoke very highly of the fear of presidential power and what he thinks about that. so i'm asking you more of a process question than a substance question. is it because you fear having a voice like that on the supreme court under any conditions, or is it because you think that his being on the supreme court may
make a majority, understanding the present eight members of the committee that that would make a majority and make it more dangerous than just having one voice. >> [inaudible] >> microphone. >> i've been worried about presidential power for decades. and across administrations. and so it isn't just the present moment, although the present moment does make me more fearful of presidential power. it is striking, i will say -- even having said that, i will say there will be a clear five-justice majority for what i consider to be quite extreme views about presidential power. >> and would you have anything to add, professor shane, to what she said? >> [inaudible] >> microphone. >> my views would be very similar, and i would echo what mr. dean said, that i worry about having the most executive power indulgent supreme court since the end of world war ii.
>> okay. professor white, i think you heard a question i asked the last panel. we've had people express their constitutional rights in demonstrating at this hearing. you've had my colleagues ask views about whether or not judge kavanaugh has any concern about people of less means, and you heard it specifically from people on the previous panel. so how do you feel his experience shows or doesn't show that he has those, would take those concerns into mind? >> well, the challenge for any judge is to see the case at hand through the eyes of all parties to the case and those who are affected by the case. in administrative law, the real challenge -- i teach it and before that i practiced it, and
a real challenge is to see administrative law through the eyes of those or who are regulated as much as through the eyes of the regulator. it's easier to be a professor or be a high-powered lawyer and see yourself running an agency. of course you want to be independent, of course you want the courts to defer to you. but knowing that regulatory power has senate impacts on not just big corporations, but on landowners, homeowners, farmers, that's important as well. and so when the supreme court in recent cases became more critical of the epa's impositions on landowners claiming authority to regulate wetlands, right? when judge kavanaugh took pause at impacts that the epa's unprecedented program for greenhouse gas regulations could have on small businesses, churches that fell within the regulatory ambit the epa was claiming, those too, i think, deserve to be part of this conversation about the impact of government power on people without the means to fight back
against it. >> thank you. and, mr. clement, since you appear so much before courts, i guess i said 90 cases you've argued before the supreme court, tell me what type of a judge you see judge kavanaugh being during his time -- during the times of oral arguments. >> chairman grassley, i think he's been an exemplary judge on the men -- bench. i would describe him as an active judge, but he actively questions both sides. i think as an active questioner, he is going to fit right in, were he confirmed to supreme court. i think the supreme court right now is about the hottest bench that the supreme court has ever been. i think each of the last justices that have been confirmed by this committee have tended to ask more questions than the justice they replaced. so i think he will fit right into what he referred to as the team of nine, and i think from
an advocate's perspective, that's what you want. you want somebody who's going to push you but is going to push your adversary in the argument and ask the hard questions of both sides. and i think that's what you would get with -- that's what you're already getting with judge kavanaugh on the d.c. circuit, and i think that's what you would see on the supreme court of the united states. >> senator whitehouse. >> thank you, chairman. mr. dean, i don't know if you've been watching the hearings? but my take on what we've seen is that for a number of very good reasons, including the minnesota law review article in which judge kavanaugh expressed a policy desire that the president be immunized from law enforcement investigation and the kavanaugh comment that u.s. v. nixon was wrongly decided and the georgetown law journal
episode in which he was asked as a matter of law can a president be indicted and put up his hand no with those who agreed that a president was beyond indictment, so it was a very live issue through these hearings about whether the president could properly be the subject of an ongoing criminal investigation. and, of course, we know that this president is the subject of an ongoing criminal investigation, and we further know of a separate criminal investigation in which the president has been identified as a named director of the criminal activity. so in that circumstance, what i heard over and over was professor -- sorry, judge caf -- kavanaugh citing his assertion that u.s. v. nixon was one of his top four cases.
all other facts being equal, you would say, okay, these other things don't matter very much. but since he said u.s. v. nixon is one of his top four cases, then obviously that'll overwhelm all these other things, and we can count on him to do the right thing. but a little bell kept ringing in my mind because whenever he said that, he seemed to just drop very quietly in that it was a trial court subpoena in u.s. v. nixon. he never raised that point, he never said this would be very different and, you know, separated the two arguments, but it strikes me that if his favorite top four u.s. v. nixon decision is limited to a trial court subpoena and doesn't protect the ability of law enforcement to proceed through, for instance, a grand jury subpoena, he played a little
game with us to try to have the best of both worlds. to reserve a little escape hatch for himself to be able to shut down, for instance, mueller investigation or southern district of new york investigation subpoenas while still purporting to uphold united states v. nixon as a big, favorite decision of his. would you respond to that? >> i would agree with your analysis. and as i said in my opening statement, i wasn't clear at all that he had reversed his position on u.s. v. nixon, excuse me, when he said that he wasn't sure it was properly decided. he also used it in the 2016 law journal article along with marbury v. madison, youngstown and brown v. board of education in the context of a judge
needing a backbone. he didn't say it was rightly decided. and he repeated that several times during the hearings. so i don't think he has informed this committee of his real position on that very important case. >> yeah. and actually through a rather clever subterfuge, which i think is a shame, if that's the case. we'll pursue the question further. ms. henzarling, you have made some powerful statements today, perhaps the best of which that there's liberty on both sides of the regulatory equation. as you know, we usually say in politics the polluter, big money side, heavily engaged and then, you're, good luck to the individual -- you know, good luck to the individual victim like hunter lachance here earlier with his asthma. and we very often see studies
that are put together that look at the cost benefit of regulation but only look at the cost to the polluter, to the regulated industry. totally omit what happens on the ore finish on the other side. could you speak a little bit more about liberty side of the regulate -- the beneficiary of the regulation and how they stand up on the political side in terms of the balance of political power on this question. >> if you could give us about 30 seconds, professor. >> yes, i'd be happy to. the laws that engage the administrative agencies in protecting against the kind of harm i mentioned range across a very broad area, and the people who are protected by those rules are the ones who are left unprotected when judge kavanaugh says that congress has no authority to grant that broad of power or to give the power, for
example, to an independent agency. and we don't hear about that in his opinions at all. we only hear about the liberty of the regulated group. so i wonder to what extent he thinks about the people on the other side. and if you think about it and you think of the witnesses who were on the panel before this one, it's basic things like going outside, being able to go to school on certain days and so forth. those are basic elements of liberty that i think weigh just as heavily in the legal equation. >> or ought to. >> thank -- >> or ought to. >> yes. >> yes. >> thank you, professor. professor coons. my order says coons and then klobuchar. >> we have klobuchar, coons, hirono, blumenthal as our order. >> well, i will never argue with you, senator. professor klobuchar. >> in that case, let's talk about some things. [laughter]
>> all right, thank you very much. >> you're welcome, professor. >> thank you to all of you. i think i'll sort of start where we were ending over there, and i spoke, of course, in my questions with judge kavanaugh at length about the 2009 article in the minnesota law review, given it's from my state, in which he argued that a president shouldn't be subject to investigations while in office. judge kavanaugh actually, mr. dean, suggested that congress can always impeach the president if there's evidence of wrongdoing, because i asked a similar question that you raised in your testimony, well, what if she committed a murder, the president, what if she did this? and he has a different, differentiating word of a dastardly crime which i didn't get to the bottom of really, but then also said that, well, you can always impeach the president. and one of the questions that i asked was, well, in modern day these investigations have been done not by congress, but with a
special counsel, independent counsel. and could you talk about the difficulty if we don't actually have an ability to have an investigation in terms of an impeachment proceeding. >> [inaudible] >> microphone, sir. >> i was one who believed very strongly in the independent counsel law. i think that's when congress did express itself that, indeed, a sitting president could be investigated. and that withstood several tests on its constitutionality. currently with the expiration of the sunset clause of the independent counsel law, putting an end to that, we now do it through the regulations of the department of justice. and there's certainly no restrictions other than a policy right now at the department of justice that prohibits investigation of a president. the history of that policy,
people seem to forget why it was written. it happened in 1973 when a vice president was under investigation by a maryland grand jury and defending himself by saying you can't indict me, you can only impeach me. an opinion was requested of office of legal counsel, excuse me, and they concluded -- and i think it was a predetermined solution to a problem finish that, indeed, the vice president could be indicted, but the president couldn't be indicted. and that is, that policy has stood since then. >> uh-huh. and you've previously drawn parallels between watergate and and where we are today. how important was the independence of the federal judiciary in helping our country to weather the watergate scandal? is just really quickly, because i have one other -- >> it was vital. met me put it that way.
>> okay. i would assume that it was. professor henzarling, thank you for being here. i had asked judge kavanaugh about how the white house noted he has overturned agency actions 75 times. when they announced his nomination, they said he was a leader in overturning these agency decisions. and when i asked him about it, he responded to me by stating that he has also ruled in favor of agencies at times. what did you think of his response, and how do you view his record in this area of law overall? >> it would be astonishing if he ruled against an agency in every case. that would be a sign of something seriously amiss. i think he may have mentioned six cases in which he ruled in favor of environmentalists, i think most of them were not brought by environmentalists. but if there were a handful of cases, there would be nothing surprising about that and also nothing about it that would
indicate that he was even-handed, quite frankly, about the environment. he's issued a number of major decisions narrowing the environmental laws, requiring the cost benefit balancing in the face of either clear or arguably ambiguous language. and he has forwarded this message from case after case in the big cases. in the little, easy cases, it's no surprise if an agency wins some of them or if the environmentalists might win some of them if it's an easy case on a procedural matter. but in the big cases, the big environmental cases, he has been all on the other side. and i'll just say, the supreme court only takes big cases. >> thank you very much. >> senator crapo, you're not interested in asking a question? you passed? senator coons. >> thank you, senator kennedy. i'd like to ask unanimous consent to enter into the record a report on the nomination of judge kavanaugh by the lawyers'
committee for civil rights under law and by the naacp legal defense and educational fund. >> without objection. >> mr. dean, thank you for your written testimony and appearing before us today. you alone have the unique historical experience that i think is directly relevant to what happens when presidential power's unchecked and a president is not accountable. based on your experience, what are the dangers of a presidency that doesn't face strong checks in the supreme court and congress, and what would have happened if watergate if president nixon had been able to avoid compliance with the subpoena or if he'd been able to fire the special prosecutor without some consequential response by congress? >> well, of course, when he first -- when he fired the special prosecutor, he reacted to the negative publicity that it generated and the interest of congress suddenly in impeachment. so he thought he could possibly stem that tide by bringing a
new, he thought initially, favorable and maybe not as aggressive investigation with the appointment of leon ya war sky. the second special prosecutor, however, was equally as effective as original one, ash bald cox, which i don't think the white house had anticipated. as far as the courts and the rulings, we would have had a very different history had the supreme court not dealt with the tapes case as they did. it would have resulted in nixon surviving. without the tapes it was my word against his, and in the polling -- while i was outpolling him at times, it wasn't enough to resolve the problem. >> so without the smoking gun which was made possible by the supreme court's decision -- >> yes. >> -- in u.s. v. nixon,
presidential accountability might not have occurred, we might not really know what role the president had played, and we might not have avoided the constitutional crisis of both confidence, and we might not have removed a criminal president. professor shane, i questioned judge kavanaugh fairly aggressively on his view of the scope of presidential authority. based on his writings, his speeches, his opinions as a judge, i'm concerned he has a view of presidential power that's dangerously unbounded. you had a chance to review his work. do you share my concerns, and what do you make of his repeated embrace of scalia's dissent in morrison? >> there's a lot to that question, senator, so i'll -- >> there is. >> i'll try to keep it brief. what most concerns me about judge kavanaugh's position is not just that he has embraced the tenets of unitary executive theory, but that he has gone to such lengths to try to create a
kind of legal foundation for it in the d.c. circuit in cases that had nothing to do with unitary executive theory. there was much discussion during mr. olson's panel about the case of morrison versus olson, and judge kavanaugh, of course, has famously said that he would like to put the final nail in that case. but in the phh case that was being discussed, this was a case that the d.c. circuit unanimously resolved on purely statutory grounds, and judge kavanaugh saw fit to write an extensive opinion for the panel on constitutional issue. it later got overturned en banc, but the opinion he issued for the panel pulled out of thin air this completely unmoored theory about why a single-headed independent agency was unconstitutional. it was full of arguments that would be perfectly fine for congress to entertain as a
matter of policy, but they had nothing to do with the constitution. >> right. >> with regard to morrison v. olson, it is still good law in the supreme court that independent agencies are constitutional. whether they are a good or a bad idea is up to congress which has the power to make all laws necessary and proper not only for carrying into execution the powers of congress, but the powers of all officers and offices of the united states government. >> thank you, professor. if i might ask a last question to professor henzarling. we went around about this several times, judge kavanaugh and myself, in trying to explain his reliance on or, i would say his fixation, with scalia's dissent in morrison, judge kavanaugh tried to describe it as sort of a one-off case about a now-expired independent counsel statute. and i kept coming back to this dissent in phh which professor shane was just referencing. do you think that dissent lays out the unitary executive theory and displays some significant
enthusiasm for it that is a well-founded justification for my having concerns about judge kavanaugh's views on presidential power? >> professor, if you could, just to be fair to everybody, give us about 30 seconds. >> yes. absolutely, yes. he would have struck down a major federal statute that was very new that set up the consumer financial protection bureau in which congress had made a judgment about the degree of dependence in the structure of the agency that was necessary in order to counterbalance the power of the financial industry. and he wrote a dissent from an en banc denial in that case. so, yes, absolutely, you are right to be concerned. >> i'd hike to thank the whole panel and just conclude by pointing out that the reason i raise these concerns in pressing judge kavanaugh was that it's exactly his quotes about u.s. v. nixon, his dissent, his enthusiasm for the dissent in morrison, his dissent in phh that leads me to still have concerns that he would not hold
the president accountable to an investigation, to a subpoena or to testimony in a way that we need in our current environment. thank you, mr. chairman. >> senator hirono. thank you, senator. >> thank you, mr. chairman. welcome to our panelists. mr. dean, in your written statement you explained that if judge kavanaugh is confirmed, we will have the most pro-presidential powers supreme court in the modern era. and most recently in trump v. hawaii the court upheld the president's basically bald assertion of national security as a way to sustain his muslim ban. at least one justice, justice sotomayor, said that she saw parallels to korematsu. so that's already pretty far down the road as far as presidential powers. what current controversies do you think might come before this court that you have serious concerns as to how judge kavanaugh, if he gets on the court, will support the
president? >> in answer, excuse me, in answer to your question, i plus say that one of the things -- i must say that one of the things i did before i came to washington was talk to some academic friends that i think know an awful lot about presidential powers. they're the people i turn to and have discussed these things at great length. they cited that case as one of the examples of how things are quickly slipping -- >> we're headed -- >> -- out of bounds and where we're headed. the fact that we have a president who is unchecked right now by other branches makes it particularly timely to be worried afresh given the kavanaugh positions on so many cases that would enhance presidential power. he could -- i could see him as a the leader of the 5-4 that would enhance presidential powers. >> and and he did not respond be
affirmatively as to any questions whether he would recuse himself should these kinds of questions come before the supreme court. professor, i found your testimony really interesting because in my review of judge kavanaugh's decision, there are various patterns, and i think he does create some new, novel ways to decide agency action cases, for example. and when judge gorsuch came before us, this were a lot of questions regarding the what we would call the frozen trucker case in which judge gorsuch, in my view, his decision or dissent was just outrageous and defied common sense. and i like at the sea world of florida case as judge kavanaugh's frozen trucker case. are you familiar with -- >> yes. yes. >> do you think that this is an example of how far he, judge kavanaugh, would go to protect the corporate interests over an individual? >> yes, i do.
yes, i do. thank you for that question. in sea world he took a clear statute, a statute that really fit the situation like a glove and held that it did not fit that situation because he could imagine that the single enforcement action based on a single day at a single amusement park might be deployed, that theory might be deployed to rule out tackles in football. and that can't be what the congress meant. and so he took clear language about assuring a reasonable workplace against recognized harms that were avoidable and that the agency has held in an evidentiary hearing all of those factual circumstances were met in that case. and he said no, in dissent, he said no. i don't believe this is covered by the statute because i can't believe congress meant to rule out tackles in football. that wasn't what the case was about, and it was absolutely, in my opinion, a departure from both the language of the statute
and the interpretation by the agency and common sense. >> i think there is a pattern of that kind of decision making by justice kavanaugh. let me cite to a couple of other examples. you know, standing is one of the threshold issues. if you don't have standing, you're out of court. so, for example, in national highway safety traffic administration, there was a public interest group questioning the adequacy of tighter safety standards because they thought this may increase the risk of harm, and he found that that was way too speculative an interest to articulate, so this public interest group was out. on the other hand, in gross v. manufacturers associate -- grocery manufacturers association very epa where they challenged epa's actions saying, well, what you are making us do
might increase prices for them and that would just be too much, and he said that was not too speculative for him. .. to complain about violations of federal law and then it easy for business groups to do that in some ways a subtle way of loading the base against the public interest groups we've been talking about. >> is much more oriented to protecting corporate
interests over individual rights, we don't need another justice pointed in that direction . >> senatorblumenthal . thank you, senator kennedy. thank you all and thank you for being here, i come from a far distance but i recognize as you do the importance of this decision for us and i will begin by asking mister dean a couple questions. sir, when you came forward which was before the united states versus nixon case, you didn't like an anonymous op-ed, did you? >> i did not. >> you came forward. >> i agree, i did send my only discussion with the media was having my secretary read a quickly dictated line to get to my superiors . they were making the mistake
as they made me the scapegoat of their activity. in effect, you announced to the world what you were going to do and to your superiors? >> yes and the result was a bombshell. and the united states versus nixon case produced evidence that corroborated the evidence that you had provided, correct? >> identified, i believe i had been recorded but that prompted the senate staff to ask mister butterfield if that was possible. he said it's very possible and very likely . the special counsel while immediately for those tapes, but in cases in and the fight in the court started, the whole dynamics of watergate change and it became all about obtaining the tapes and whether they would corroborate or not my testimony. >> i can remember vividly the picture of how butterfield
revealing those tapes, and it was also a bombshell, correct? >> july 16, 1973. it was. >> we can go through the history here but where i'm going with my point is that it wasn't just -- or maybe even primarily the united states supreme court in united states versus nixon. it was a number of individuals who had the backbone and guts to come forward , whatever motives the time and speak that truth to power, correct? >> yes. >> so we came here to talk about the law, about us versus nixon, about a unitary president, about all kind of concepts that mean little to
the american people that we are talking about basic courage . to stop a constitutional crisis. >> the system is important to those who do want to rely on it. >> there is now arguably a cancer on the presidency as malignant and metastasizing as there was then, correct? >> yes, i would agree with that. >> and the only way to really stop it is not by relying on laws alone but on people respecting the laws, taking acts of personal courage and coming for this feedback truth to power, would you agree? >> even with anonymous op-ed's. >> even with anonymous op-ed's which could lead others to come forward non-anonymously. but cases are not built on
anonymous sources. eventually there have to be witnesses willing to testify and speak that truth to power. you have said that your belief is that president trump would never resign because he, i'm going to paraphrase, is shameless. i think you viewed something like this. would you give us in your view your analysis knowing richard nixon as you did, the reasons why he resigned. i suspect it had something to do with the fact that he sought impeachment coming and he was told by scott and everett dirksen that he liked the votes in the senate to avoid conviction but let me ask you your. >> it was very much the fact that he was going to lose in an impeachment battle that the house would impeach and
the senate would find him guilty and remove. that appeared to be the case. but i think also, richard nixon had done something that was, made it very awkward for him. he had pulled people aside and told them of falsehood that he had nothing to do with the cover-up until i had told him about it. it was a flat out lie and he had been caught in that by the release of the so-called smoking gun, but even more basically, i think he left because the man at his core had a respect for the rule of law. not one of the differences i find today in mister trump and the reason i don't think he would resign. because he could care less about the rule of law . >> if we could begin to wrap up. >> one more. >> ultimately, also it was those republicans in the united states senate who delivered the message we
won't stand for it. >> that's correct. >> thank you. >> i'm going to ask a few questions and i'd love to be able to ask all of you questions, i just don't know if i have time. let me start with ms. nashville. >> i'm going to be sure i understand. judge cavanaugh coached your daughter. >> yes. >> and his daughter wasn'ton the team . >> correct. >> and when he finished coaching the kids, at the end of the season he wrote them all personal notes? >> yes, a detailed evaluation of things to work on, things you did well and then the final note which is what i read . >> does he generally do that for his jeans? >> he does it for everybodyon the team, every team he's coached . >> i want to switch gears. i think i heard professor whiteand professor , hensley , i'm not, my apologies, talk a
little bit about transfer of power from congress to the president and i'm thinking of it in terms of the chevron doctrine. >> and i'd like you to each quickly help me out, here's my problem with chevron deference. i don't understand how it's constitutional. and here's why. i look at the apa which of course congress acts and congress says they, this is the law, the reviewing court by the agency, the reviewing court shall decide all questions of the law. internet constitutional and statutory provisions. and determine the meaning or applicability of the terms of an agency action. and that statute by usc section 706 as i'm sure you know better than i do. so how can, how can the courts construe that
congressional directive as getting the power to our agency? that was currently not congress intended, because could you give me about 30 seconds on that? >> this is a puzzle administrative law a little bit, the text of the administrative procedure act as what you say. it says and has been from you in a way for a number of years of the answer would be even where a court defers to an administrative agency on the interpretation, it's still making but legal judgment, the relevant legal judgments. it is for deciding the first instance, is the statute so clear it shouldn't deeper at all and in the second instance even if the statute is unclear,it's making the judgment about whether that interpretation is admissible . >> not to interrupt. so you think that chevron
deference is unconstitutional? >> i think it's consistent with the language of the administrative procedure. >> i don't think it's constitutional. >> professor white. >> one of the interesting things about chevron is that you have critics and proponents on both sides of the aisle. the most delicate case for chevron's prostitution alley came from justice scalia in the duke law journal article. that said, there's been an increasing awareness on both sides that in the biggest cases, chevron deference illustrates either a delegation of judicial power to an agency or respect a delegation of legislative power to an agency. most recently in the king versus barwell case where chief justice roberts -- >> i've got to stop you.>> chief justice roberts set aside ginsberg . >> professor ascot, did i say it correctly? did you ever see judge kavanaugh take politics into
consideration in deciding a case? >> know, judge kavanaugh turned the record inside out looking at the law, the statutes. >> but you never saw himtake politics ever, not once ? >> no. >> there enough. should the supreme court incentivize oral arguments, could you turn your microphone on? >> that's an excellent question. i think that's an excellent question.it's a question that the justices are ultimately going to have to answer at some point unless congress forces its hand and it will be an interesting question whether that statute is constitutional. my view for what it's worth is televised in supreme court arguments makes an awful lot of sense. it's one of the odd realities that everybody seems to think
that until they become a supreme court justice and then they tend to have a different view but as i sit here as a supreme court advocate, i don't see a compelling argument why the public shouldn't get the proceedings televised and i think if they did, they have a high opinion of the supreme court of the united states. >> i appreciate that, you're a hell of a lawyer. on that, i'll let senator hirono go over 20 seconds. mister dean, i don't care about your politics. i really don't. i have friends on both sides of the aisle. like senator blumenthal, i remember vividly the early 1970s as well when you worked in the white house. i think you and your co-conspirators hurt my country .
i believe in second chances. but you did the right thing, ultimately. but you only did it when you were cornered like a rat . and it's hard for me to take your testimony seriously and i'm going to give you a chance to respond, but i couldn't sleep tonight if i didn't tell you that. i might give you a chance to respond . >> the president has also calledme a rat . and i don't think -- >> i'm not calling you a rat in the sense of what you did with the prosecutor, that's not what i mean. but i honestly feel thatway as an american. i think you hurt our country . >> i have written a book based on all the watergate conversations that were secretly recorded, learned a lot that i have known.
out of the thousands conversations that nixon had on watergate, i was involved in 39 of them.i think every conversation i had with him, i'm trying to warn him, alert him, find out how much he does know or doesn'tknow . i tried internally to end the cover-up. i didn't succeed. that's the day i think i'm richard nixon. i didn't know the man, hadn't had dealings withhim , there's a great misconception about what the early 30s white house counsel to do around a white house. so maybe you'd want to, i'll send you a copy of that book. it might give you insights into what really did happen in there. >> all right. well, we're done. i want to thank this panel very much.
and i'll say what i said to the earlier panels. i know this testimony doesn't just write itself and you all spend a lot of time on it and i really want to thank you. i think all of us get a lot out of this part ofthe confirmation process . the record will remain open until noon on monday. >> and that's consistent with other supreme court nominee practices. >> with that,thanks to everyone. these hearings are adjourned .
as the room clears, this wraps up the confirmation hearing or brett kavanaugh to become the next supreme court justice. four days of testimony in this hearing, judge kavanaugh would replace justice anthony kennedy. the committee was able to question judge kavanaugh for more than 20 hours over two days and today never heard from outside witnesses and legal experts. in off and you missed any of today's session, we will be showing it again tonight in its entirety at 8 pm eastern right here on c-span2. also watch all four days of testimony from the hearing, just type in the search box at c-span.org. we will take a look back at these testimonyfrom yesterday .