tv Senate Judiciary Committee Confirmation Hearing CSPAN February 15, 2019 11:22am-2:09pm EST
the deputy local editor monica norton. >> i thought the film was visually beautiful and the thing that really sticks with you is, just how loving and lovely the film is. >> i think his writing really does deal with love, whether it's universal love, loving one's self, love between people and the society. i really think that is sort of the overarching theme. i think a lot of people probably see him because he was so passionate in fighting for the rights of african-americans that sometimes i think that people mistake that for anger and i don't think -- i think he was not angry but forceful in his denunciation of racism. >> sunday night at 8:00 eastern on c-span's q&a. >> coming up next, a
confirmation hearing for president trump's nominee to serve on the d.c. circuit court of appeals. committee members ask neomi rao about some of her writings about rape and sexual assaults while she was a student at yale. two nominees for the privacy and liberty oversight board testified at the senate judiciary committee hearing. >> the hearing will come to order. thank senator lee.
he's on his way. in the meantime why don't we just go ahead and swear miss rao in. please rise. do you solemnly swear the testimony you give before the committee is the truth, whole truth and nothing but the truth so help you god? thank you. so chill out. okay. introduce your family. >> lee is going to introduce her. >> thank you, chairman graham, ranking member feinstein and members of this committee for your consideration of my nomination. i thank the president for nominating me to be a judge on the d.c. circuit court of appeals and grateful to be here today. i wanted to begin by introducing my family. with me is my husband alan and
my two children isabella and isra. my family is quite simply my greatest joy. i'm also fortunate to be joined here today by my father dr. rao and many members of my extended family. i am grateful to so many friends who have come from far and near to be here to support me today. at a moment such as this, i recall my mother who passed away some ten years ago, but i know that she is with us and in my heart providing the good strength and counsel she always did. i was born in detroit, michigan to parents who imply grated to america from india with their medical degrees and little else. they started with almost nothing but through hard work built successful medical practices and small businesses. my parents faced their share of difficulties, but they always emphasized the amazing opportunities in this country and the good people they befriended along the way. my parents raised me and my brother to be open minded and we
had friends from all different walks of life. through their words and actions, my parents reinforced goodness and kindness. the essential importance of family and friends and the values of hard work, honesty and integrity. i strive to live these values each day. i also cannot help but take notice of another funny coincidence is a nominee on the next panel. my grandfather and aditi's were the best of friends in india. today we and the two grandchildren of old friends in india are nominees of the same hearing of the senate judiciary committee. only in america. so i consider it a great privilege to be nominated to this position and as alexander hamilton explained, universal adherens to the rights of constitution and individuals is indispensable in the courts of justice. if confirmed i would adhere to the law and in each case strive for the good judgment required for the exercise of the judicial
power. thank you, mr. chairman. >> senator, lee. >> thank you so much, mr. chairman. i'm so sorry to miss rao that i wasn't here to introduce her. i had a conflicting committee assignment. i'm pleased and honored to introduce our nominee for the d.c. circuit neomi rao. miss rao is well known and is a distinguished scholar and prominent attorney across the country. although she certainly has very big shoes to fill, having been nominated to fill justice kavanaugh's seat on the d.c. circuit i'm more than confident she is up to the task. miss rao is focused on administrative law for virtually her entire career, which happens to be excellent preparation for a nominee set to serve if confirmed on the u.s. court of appeals for the d.c. circuit whose docket is complex, it's dense, and it's vitally
important to the development of administrative law in our system. she's the administrator for the office of information and regulatory affairs which serves an important role in our government as the clearinghouse for all executive branch regulations. she's also a law professor at the scalia school of law where her scholarly work focuses on administrative cool school of law. in 2015 she founded on administrative law and served on the governing counsel of the american bar association of law and regulatory practice as well as on the federalist society's regulatory transparency project. before her life as a law professor miss rao served in the white house counsel's office and also served on this committee on the senate judiciary committee. she was a law clerk to two distinguished jurists, justice
thomas on the supreme court and judge jay harvey wilkinson on the u.s. court of appeals for the fourth circuit. she's a graduate of the university of chicago law school where she was on the law review and she did her undergraduate studies at yale college. she grew up in suburban detroit, daughter two of immigrants from india and lives in washington with her husband and two children. miss rao, welcome to the committee. we look forward to hearing from you and to hearing your answers to our questions. thanks so much for being here. >> thank you, senator lee. >> thank you. thank you, senator lee. my congratulations the nomination to your family. thank you very much for attending. i know this is a big day in your professional and personal life. with that, i will turn it over to senator feinstein for any statements she would like to make. >> thanks very much, mr. chairman. as you have said this morning, we're going to consider three nominations, including the person before us, neomi rao, who is being considered for the
united states court of appeals for the d.c. circuit. most of us regard the d.c. circuit as the most appellate court in the country and we find it true in part because the d.c. circuit hears challenges of actions taken by the federal government. for example most federal regulations when challenged are heard in the d.c. circuit. this is a particular note since the nominee before us has spent the past several years leading the office that decides which regulations to implement and which to rescind. writings that have specifically since july of 2017 miss rao has been in charge of the office of information and regulatory affairs. in this role she has led the trump administration's regulatory agenda where she
worked on repealing the clean power plan regulation, repealing protections that addressed pay discrimination on the basis of race, and gender, and weakening the cafe standards bill that i authored with senator snow. as noted the d.c. circuit hears more challenges to federal regulations. thus if confirmed miss rao could be in a position to decide cases about many of the very regulations that she has personally worked on. there's also been press coverage about a number of positions miss rao has taken in her writings, while the writings that have received the most attention are from when she was the college, several are relevant to the work she has led at the office of information and regulatory affairs and to cases she could well hear if confirmed to the d.c. circuit. miss rao has also expressed
views on the unitary executive and on president trump's ability to oversee special counsel mueller's investigation and fire the special counsel. all these topics are important for this committee to examine. i have a number of questions for the nominee on her writings and regulatory work and i look forward to hearing from her and asking these questions. thanks, mr. chairman. >> thank you very much. your background is very impressive. you worked -- you were a clerk for two judges, justice clearance thomas on the supreme court and justice wilkinson on the fourth court who i know very well, fourth circuit, served as counsel to the senate judiciary committee. who did you work for? >> i worked for then chairman hatch. >> okay. >> you served as associate counsel and special assistant president george w. bush. what did you do there? >> well in the white house counsel's office, i oversaw a
number of important legal issues in different agencies. i worked on judicial nominations and a variety of other issues. >> what did you learn from your time as being a staff member of the judiciary committee? >> i learned a great deal. i'm very pleased that i had the opportunity to spend about a year in congress with this committee. i learned much more about the legislative process, how things work. i learned about how congress takes seriously its obligation to make sure that statutes are constitutional. that was part of the role i played there. i learned about the legislative process and rule making and law making. >> you went to college at yale? >> that's correct. >> tell us about some of the writings that you engaged in while you were at yale? i think you know what i'm talking about. so -- tell me what you were thinking then and what do you think now? >> sure. thank you. thank you, chairman graham. when i was in college, it was a
time of exploration. i spent a lot of my time at yale studying political philosophy and reading social commentary and perhaps like many of my colleagues and classmates at yale, i enjoyed commenting on some of the narrow events that were happening at yale. we were very focused on campus events. to be honest, looking back at some of those writings and re-reading them i cringe at some of the language i used and i was young, over two decades ago now, but i think i was responding to things that were happening on campus at that time. you know, in that in the intervene two decades i like to think that i have matured as a thinker and writer and, indeed, as a person. >> well, specifically, about the situation with the intoxication and sexual assault, can you explain to us what you were thinking then and where you're at now? >> yes. chairman graham, so some of my writings i talked about the issue of rape and sexual assault
and emphasized that rape and sexual assault are crimes for which men should be held accountable and that no one should blame a victim of sexual assault or rape. i also attempted to make the common sense observation there were some actions a woman could take to make it less likely to be a victim of those horrible crimes. and so that's what i was expressing in some of those pieces. >> 2013, you wrote a piece titled "the trouble with dignity and rights of recognition" about the doma debate. could you tell us what your thinking was then? >> yes. that was about the supreme court's decision in windsor and one of the things i was writing about there was different conceptions of dignity. i have done scholarship on competing conceptions of dignity and constitutional law and stugsal courts from other countries and the windsor case raised particularly interesting questions about the use of the
word dignity. >> have you ever been a judge before? >> i have not. so if approved by the senate, you will be on the d.c. circuit court of appeals. what can you tell us about your ability to do that job never having been a judge before? >> thank you. chairman graham, i think the experience i've had over the past 20 or so years fits very well with the specialized docket at the d.c. circuit as mentioned hears a disproportionate number of cases. i have extensive practical experience with those issues as the administrator where i oversee regulatory policy in the regulatory branch and council for this committee working in the white house council's office and i have a lot of scholarly experience with the issues that arise as i've spent over a decade studying constitutional, administrative laws, separation of powers and the like.
i believe my practical and scholarly experience fit well with the responsibilities of that court. >> finally you were chosen for your current position by president trump to implement his agenda of trying to deregulate the country, is that correct. >> yes. you know i was chosen to help implement the president's regulatory reform agenda which is a very ambitious one and i have sought to do that in my current position responsibly and consistent with law and ways that are transparent and promote the norms of due process and fair notice. >> thank you very much. senator feinstein. >> mr. chairman, these are rounds of how long? >> five minutes. >> five minutes. >> miss rao, let me get right to it. as administrator of the office of information and regulatory affairs, you i think in your own words, and i quote, direct and oversee regulatory policy across the federal government. end quote.
given this role, if confirmed, will you commit to recusing yourself from all cases involving the trump administration's regulatory actions? yes or no would be fine? >> senator, recusal is a very serious issue and it's very important to maintain the impartiality and independence of the judiciary and if i were to be confirmed i would like at the standards for recusal under 28 usc 455, consult with my colleagues and follow the practices on the d.c. circuit? >> in 2007 senator snow and i authored the 10 and 10 fuel economy act, a national program, it sets fuel economy standards, these standards have already saved $65 billion in fuel costs for american families and 250 metric tons of carbon dioxide. despite its success, the
administration has proposed canceling the planned improvements in fuel economy and vehicle emissions for model years 2021 to 2026. you have highlighted this change as a focus of the administration. what benefit does eliminating the program provide to the american public? >> thank you. ranking member feinstein, so it might be helpful just to explain my role which is that we coordinate regulatory policy. of course the primary policies are set by the relevant agencies. they're given the authority from congress to implement regulatory policy and that's what's been done with the proposed cafe standards by epa and the department of transportation. those are rules that we have under review. i think those agencies are seeking to implement the administration's agenda with respect to improving environmental outcomes and
safety for the american people. >> well, is it true that your intent would have been to have canceled that policy from 2021 to 2026 when the real benefits come into play? >> well, senator, it's, you know, respectfully it's not my intention and currently the rule in its proposed stage we have not yet received the final rule from those agencies so those agencies are taking into account all of the comments that have been received in the process. we believe that's a very important part of the regulatory process to hear from the public about the consequences of different regulations and those will be taken in account in any final rule. >> so you know, this is -- was a very important bill. and worked a long time to get a bill that dealt with cafe standards which had not been touched in decades. the first ten years have gone by
and it has worked. after the first ten years in the bill language, the administration must take the most cost effective technical improvements and make them into their policies for the future. if followed, this would continue to increase fuel efficiency and continue to save people money. i gather that in a speech before the american bar association on october 19th in 2017, you intimated that you might be opposed to this and take some action. i'm curious, are you opposed to this law? >> senator, you know, as a judicial nominee or even as the administrative i'm not opposed or in favor of any law.
it's part of my responsibility to make sure the agencies are following the laws by congress and a number of laws relevant with respect to cafe standards and we are working closely with the agencies to make sure that they are following the law and regulating in a manner consistent with the statutes. >> thank you. one last question. well, i think i'll let it go for now. >> take some time. >> in september 2017, you withdrew a form developed by the equal employment opportunity commission, ceeoc that sought to identify wage discrimination on the basis of race or gender by collecting wage data from some private employers. you have written you withdrew the form because it was and i, quote, an extremely burdensome
and not justified collection of information on wages. question is, what evidence did you have to conclude that the form was too burdensome for companies to comply? >> may i respond? so, you know, thank you for the opportunity to clarify that. first, that decision is currently in pending litigation so i'm limited as to what i can say about it. i did issue a stay of an expansion of the eeo 1 form in part based on the standards under the paperwork reduction act about information collection and the importance they be minimally burdensome and have practical utility. now, again, just to be clear that's an interim decision. we stayed the form. it's up to them to decide whether to proceed with that form. in the meantime the existing wage and gender and race collections are still in place.
with we're continuing to use the form that's been in place for a number of years. >> and what would change that? >> so at this stage, there is a decision that needs to be made by the eeoc whether they wish to change the existing form and expand it in some way. >> thank you. thank you, mr. chairman. >> miss rao, what is oira? i think it's the most powerful government agency nobody has ever heard of and few people understand. would you take a few seconds here to explain what the role is. >> thank you, senator cornyn. so it is an office within omb and we are charged with reviewing regulatory policy around the executive branch. it's an office that's been in place since president reagan who issued an executive order creating the office and we operate under an executive order put in place by president clinton in the early 1990s.
the process really is a bipartisan one that's now been around for a number of decades. >> would it be fair to characterize it as a clearing house? >> it is a kind of clearinghouse. agencies set the regulatory policy and send it to us. >> to that point, do you make policy? >> we do not. congress gives that authority to the agencies. >> when it comes to sort of legislation that senator feinstein was alluding to would you be authorize to substitute your policy judgment for that of the agency guided by congressional statute? >> i would not. >> miss rao, i've been reading in some of the hill rags about your college writings and want to give you a cans hance to exp. since judge kavanaugh's hearing when we were taking a magnifying class to his high school yearbook it seems to be sort of the way things go around here now that people go back 25, 30
years and look at things like that and try to criticize people for maybe some of their youthful indiscretions or opinions they expressed back then that are not particularly politically correct today. i know you have written about multiculturalism as an undergraduate student at yale and expressed the hope that racial and gender differences would be appreciated and discussed, but you also wrote about your concerns that they be used to push for divisiveness and not togetherness. when i saw that, i was reminded of author schlessinger's book "the disuniting of america" and he wrote it's important to learn much from other races and continents but focusing too much on cultural differences can undermine the idea of unifying american identity. do you agree with him?
>> senator, i certainly have had similar experiences myself. i grew up in a diverse environment. i have friends from all different racial ethnic and religious backgrounds and my experience it's often hard to put a label or categorize someone and one of the things i was responding to at yale was a push towards less tolerance and understanding and i think perhaps i was idealistic and hoped that, you know, especially in a small environment at yale we could have both a celebration of people's racial and ethnic differences but more unifying and more unifying and more unification and understanding. >> i hope this committee and this congress isn't in the business of crushing youthful idealism or punishing people who exhibit that. so when judge carkavanaugh was going through his confirmation
hearing and justice gorsuch through the supreme court, a lot of discussion about the chevron doctrine and as i understand it, it's a doctrine where the supreme court has said that they will defer to an agency's interpretation of their own authority to act in an area where congress has been ambiguous? is that correct? please correct me. >> well, so i think that that's partly the chevron doctrine and also the view of the court in the city of arlington case about agencies' ability to interpret its own jurisdiction and those are precedence of the supreme court if i were confirmed i would faithfully follow. >> you anticipated my next question. is it the role of the d.c. circuit court of appeals to overrule the united states supreme court? >> it is not. >> and it is the obligation of every judge on the d.c. circuit to follow the precedent established by the supreme court
of the united states? >> yes, sir. i would do so. >> thank you very much. >> senator. >> mr. chairman, i read that you, miss rao your never tried a single case to predict a judgment or final decision, is that correct? >> that is correct. my experience is primarily focused on government service and academia. >> i understand that. i wonder, i'm -- some of us are a member of the d.c. bar areas, courts of appeals, every time i've argued a case before a court of appeals i looked at judges who have tried cases, who have been involved in litigation before because often times the whole case revolves around what might have happened in the trial
before. but zero percent of your practice has been a lawyer in federal courts, correct? >> you know -- >> yes or no. that's easy. >> well, i have worked in -- with federal courts in my various government practice was international arbitration. >> so you tried cases in federal court. >> i have not tried a case but i have worked on briefs and preparing others. >> have you tried cases in state court? >> i have not because my primary experience has been as a scholar. and working for in committee pan for the executive branch. >> well, the executive branch, have you had any of your practice been before administrative agencies? >> not directly before administrativations but as the administrator. oira i oversee dp administrative policy on a wide swath of issues from all the executive branch agencies. >> do you think that -- well, do you understand why some may be
concerned about somebody sitting on a federal court hearing appeals from cases that have been tried in federal courts and that person has never tried a case in federal court or state court, or a court of appeals? do you understand why some can be concerned about that? >> yes, senator, i certainly understand that concern. you know, there are a number of judges you know on the court of appeals who have had a similar background to mine that has combined academia and government especially, especially for the court of appeals where there are more purely legal issues that arise in those cases. and you know, the experience i've had is i think ver germane to the special piezed docket of the d.c. court. >> when i argued before cortes of appeals any may be legal issues but resulted from a trial. >> yes, of course. >> as those came up. and you assumed that the judges
the no matter who appointed them, that certainly those of us who are arguing the case before them and assumed that they had some idea what the courtroom was like. now, you made it your mission to deregulate government. i see it as making it harder for government agencies to use their authority to protect our healthy, our safety and environment. if we had an administration that at some time cared to address climate change, based on your past record, it's hard to see how you could give enemy a fair shot in court. for example you wrote in the 1990s that climate change is nothing more than a major environmental boogie man and the greenhouse effort is a controversial theory pushed by environmental groups. do you still stand by those assertions? >> you know senator leahy, knows are statements from college, as
you said, a few decades old. when i think some of these issues were more -- more hotly debated and -- and, no, i mean i think the science has become much morp conclusive over time sfl conclusive in what way. >> mungds is there is an overwhelming scientific skens us that there is climate change. >> and do you agree with the overwhelming majority of scientists that say that climate change is not only a reality but being created by human activity. >> >> well i believe there is a lot of scientific evidence. my understanding is that human activity does contribute to climate change, yes. >> contributes. >> well i'm not a scientist, senator leahy. >> well, in your college op-ed about date rape you wrote if a woman drinks to the point she can no longer choose, getting to that point was part of her
choice, implying that a drunk woman has no control of her actions but a drunk man does strips women of all moral responsibility. i prosecuted a lot of rape cases. i would hate to think that was the view of the courts and the juries. i do know this, that that view is pushed rb results in victims too ashamed to come forward. and it could also result in juries excusing culpable defendants. do you currently believe that if a woman consumes alcohol to the point where she can no longer consent she is in part to blame for somebody who rapes her? >> more, leahy, i appreciate the appreciate to clarify that. in that column i make it clear that rape is a terrible crime for which men should be held responsible and no one should blame a victim of rape or sexual assault. i was trying to make and perhaps not in the most elegant way the
sort of common sense observation that -- that excessive drinking can lead to risky and dangerous behavior for men and women. it's the advise my mother gave me it's the advise i give my children. i regret any implication of blaming the victim. >> you can understand why that is there. i mean why that implication, why people are concerned that's what you were saying? >> well, senator, leahy, you know the context of the column was a particular event on campus. and i'm also make a a number of statements clearly about the responsibility of a man for those crimes. >> okay. well i look at it from the eyes -- as a former prosecutor. and it bothered me greatly. thank you, mr. chairman. >> professor, good morning. >> good morning. >> do you know what a motion in limine is, don't. >> you yes, i do. >> what is it. >> it's a preet motion to exclude evidence. >> okay.
do you know what the dobert doctrine. >> yes the motion involving the exclusion of certain forms of expert testimony. >> good. does a federal judge ever make law? >> no, that's not the role of a federal judge. the role of a federal judge is to apply the law as it exists a and is found in the statutes pan precedents. >> how about -- you're familiar with the fourth amendment. is there a statute that says what reasonable is under the fourth amendment? don't judges all the time have to determine what reasonable means? isn't that making law? >> well this is -- this is a determination that's made under law in applying the facts of a specific case. >> but don't judges make law when they decide what reasonable means under the fourth amendment. >> well, they do in some sense make law. that's true. justice scalia once said, you know i'm not so naive to think judges don't make law but they make law as though they are find going. >> so they do make law.
>> well in a sense, you know, they decided case and those become precedents. >> how about -- how about defining a restraint of trade? >> well. >> i mean, there a statute that tells us in every circumstance what restraint of trade is? >> well, the sherman anti-trust act is you know much the statutes that's referred to as a kind of common law statute where congress has put forth a jr general standard implemented by the courts. >> but don't federal judges all the time have to tell us what -- what restraint of trade mean? i mean every case is not identical. >> well yes they have to make that determination. >> so judges make law there too don't they. >> in a sense, yes. >> the okay. when usual -- if you've got an ambiguous statute, do you think the president's opinion about the meaning of that statute is part of the legislative history?
>> the president who signed that statute or the is. >> right he can sign it or veto it. >> well, i do think that it is -- it is in a sense part of the legislative history but i think in general when interpreting a statute it's best to focus on the text. >> do you think you should ignore what the president thought about it? >> well i think a court needs to consider the evidence the parties put forwards sometimes that includes legislative history where or the the opinion of a president. >> sorry to cut you off i don't have much time. tuning what the president thinks about a statute, the meaning of it is part of the legislative history? >> yes. >> okay. >> okay. let's suppose congress passes a statute. it says -- i'm going to read it slowly. i just made this up. okay. no person convicted of rape in any court can work in a battered women's shelter. no person convicted of rape in
any court can work in a battered women's shelter. now, the legislative history makes it very clear that in any court means a united states court. and someone is convicted of rape in a court in, let's say, tu turkmanants. what controls the plain language of the stat or the legislative history. >> where the supreme court made clear where the statute is chlorthat's the end of the inquiry. in your example the statute says any court. >> you would rule in any court. >> well i think part of the question would be also to look at the structure of the statute. and the surrounding text to see whether any also included for instance jurisdictions. >> but under the plain meaning doctrine if you are an
originalist you don't look beyond the statute. >> but there is is it sometimes a question whether that extraterritorial application. >> no it says in any court. means any court. >> well any usual is pretty. >> even though congress intended it just to mean -- imis that a a case por you ignore the legislative history and go with the plain meaning of the statute even though congress obviously intended otherwise? >> well, i think if looking in the four corners of the statute and considering its structure and the other related provisions and looking at that if it seemed clear then there would be no need to have recourse to the legislative history because the text is what congress enacted after all. >> all right. okay. what is your -- this is my last question, mr. chairman. what is your personal definition of life? when does life begin in your personal opinion? >> senator, you know that is a -- it's a difficult question and it's one that's subject of ongoing political disputes. >> i'm not asking legally i'm asking you personally.
>> i guess i'm not exactly sure how to answer that question as a judicial nominee i'm -- i hesitate to comment on it just answer it for me honestly have you thought about it. >> i mean, i have thought about it, yes. but it's the type of sthu that is related to cases that could be pending before the court. if i'm confirmed. and under the code of conduct it wouldn't be appropriate for process me to comment on that. >> let me suggest an answer to you. it doesn't matter. as a judge. if it's if you're supposed to follow the law. >> of course, senator my personal views to the extent i have any are put to one side. >> and that's the point i'm trying to rush through this but others went over. we have nominees come before us all the time. and they're beat up for their past written opinions and their past law review articles and past things they've said. i don't want a nominee that's never thought about the world. the i'd prefer to have a nominee that has an intellect above a single cell organism don't come in mere as a blanc slate.
the issue is not have you thought about the world. the issue is were you willing to put aside your personal beliefs and follow the law. so are you willing to put aside personal beliefs and follow the law. >> absolutely. >> even if you disagree with the law. >> absolutely. that's the job of a judge. >> are you willing to rule in an abortion case in awas as dictated by the law even if it contradicts your person opinions about when life begins. >> yes of course. >> thank you, mr. kmarm. >> senator blumenthal. >> thank you, mr. chairman. welcome to our committee and thank you for your service. this hearing is the first this session on judicial nominations. and it may be one of the most important that we do in this entire session. the court that you have been nominated to serve is certainly one of the most important. those of us who live in the jurisdiction of the second circuit court of appeals might
believe it's the most important court. but there is no question you will be making law. and you will be a decisive and dispositive vote on this court. i'm not going to ask you about statements of 20 or 30 years ago that may make you cringe now. i'm going to ask you about more recent statements that make me cringe. and is from november 18th, 2014, at a discussion could hoefted by the cohosted i by fratist where you lamented the rehnquist did not go far enough in reversing the commerce clause since the court upheld new deal policies in 1940s. you said, they're able to invalidate things like the gun-free school zones act. or parts of the violence against women act.
which are really kind of grand standing statutes. do you believe the dune-free zones, the gun free school zones act is a grand standing statute? >> senator blumenthal, no. that -- that event was -- was. >> why did you say it if you don't believe it. >> well i was responding to the person i was interviewing who had written a book about -- about having more robust judicial enforcement of the constitution. and -- and that was in the context of asking him questions about things he had written in his book. >> this statement was made about two years after the massacre at the handy hook school. >> um-hum. >> i don't know whether you talked to a parent who lost a child in a school shooting. but i think if you had you would never have referred to that statute as a grand standing statute if you were aware of the
very effective record of this law. in fact the cdc found in the years of a the law passed school associated student homicide rates decreased by more than half. that's just one piece of evidence. i hope that maybe you'll rethink that view. did you believe then? and do you believe now that the violence against women act is a grand standing statute? >> you know, senator, no, it's -- violence against women is a very important issue. and of course it is a statute of in body and if confirmed i would have no -- >> well do you believe the two statutes -- you said at the time they were grand standing statutes. >> well senator i believe the context of the comments were responding to the author who had written a book. >> you were responding to the author and you said something that you don't believe? >> well, i don't recall the exact. >> what kind of judge will you be if you say things you don't believe. >> mr. chairman would it be too much to ask for the senator to let the witness answer the
question? because they're talking over each other and i can't understand. >> well, senator, i was in that context interviewing someone who had written a back. rg i was the interviewee and i was responding to things he had written and said about the role of the supreme court. >> let me ask you about another article that you wrote in 2009. called the president's fear of action. stating your belief in a, quote, strong unitary executive. you said that, quote, the president may also decide not to follow supreme court precedent and in the rare instance made decide against enforcement of a particular judgment. do you believe that the president of the united states has the power to defy a united states supreme court precedent or judgment? >> you know, senator that article was -- it was in general about the president's authorities in a range of different areas. and some people have -- some
other comment taters have made the argument in the very rare instance that that is permissible some presidents have made that argument. >> do you think you just answered my question? >> well i'm answering your question as to what i was writing about in that article. >> no. do you believe it. >> do you believe that? i believe that there are presidents in our history who have declined to enforce judgments of the sfrourt. >> do you think that's constitutionally permissible. >> i think it's a very difficult area. the office of legal counsel opined that a president can in certain circumstances decline to enforce an unconstitutional statute. and i think it's related to that concept. >> my time is expired mr. chairman. i hope we have another round thank you. >> are you familiar with presidential signing statements? >> yes, i am. >> are you familiar with that every president virtually on anything controversial about executive power issues a signing statement giving in re view of congress's limited ability
vis-a-vis the executive. >> yes, that is a common provision in executive signing statements. >> senator hawley. >> thank you mr. chairman. thank you for being here. since we're talking about the violence against women act and the gun free schools act process. . united states supreme court kwort inadvancemented portions of the violence against criminal act is that your understanding. >> yes. >>en the united states invalidated portions gun free schools act. >> yes. >> united states versis morrison the case and the lopez case respectively. correct. >> you were not arguing for invalidating portions of the acts. you were commenting on i assume actions that the united states sprourpt had already taken. is that correct. yes. >> will you faithfully follow precedent of the united states supreme court as an inferior court judge. >> yes, no. >> will do you it regardless of beliefs whether about the violence against women act or gun free schools act that or any other act that the united states sprourpt has a precedent regarding. >> i would put any personal.
>> that would be a refreshing change from many judges on the inferior courts let me ask you about sprpting statutes. he asked you about particular tools walk me through how you approach a statute. when you think about the different tools that judges use to interpret a statute, text, structure, history, legislative history, dictionaries, philosophy, sometimes foreign law. can you give us what you would prioritize. what would you prioritize in terms of tools? and how would you go about the business of interpreting a ambiguous statute which you'll of course see every day. >> thank you, senator. of course as an inferior court judge i would like to the precedent of the supreme court to see how they interpret the statute. but really the first -- the beginning of the inquiry is the text of the statute. that's where the supreme court said we should start. and in trying to understand the text of the statute would look at the specific words of the statute, you know, other related provisions within that statute,
the structure of the statute, how the provisions fit together. and often times you know that will be sufficient to yoeld an answer as to the meaning of the statute. but of course as a judge you know, i would consider other arguments raised by the parties before me and that may include other tools such as legislative history, or other materials. >> tell me about legislative history. i mean, how does that fit into your understanding? you start with text, structure, history. how do you -- how do you think about legislative history? i ask becauses in a live debate at the united states supreme court and the supreme court guidance is conflicted. you have justices saying they are never consult self legislative history. of course the kwort has made a practice of consulting legislative history but in different ways. so there is kuwait a bit of ambiguity there. how tuning about the important issue. >> sure. i think there has been more unanimity on the issue. justice kagan said we are or
textualists now because there are constitutional reasons for that. you know the text of the statute is what went through the house and senate and signed by the president. that is the law under the constitution. the legislative history is, you know, of course the understanding of some members of congress. and you know there have been many reasons given by the supreme court for why -- why it's usa should be limited >> let me ask you about your area of expertise, your particular area of expertise which is administrative will you, an area you'll see a lot on this circuit should you be concerned. this is an area of law that also is in a state of change. and the united states supreme court has recently indicated or been sending signals it may be willing to revisit some of the foundational precedents. i think senator cornyn may haved asked but the chevron case. thinking about the king versus burrwell case a controversial case for many reasons. that was a case where one would have thought the court might have applied deference or
invoked deference. it didn't. and instead the majority said it's courts not agencies who have the primary role in interpreting statutes. the kwort expand what had appeared to be the sniff questions exception to the chevron doctrine. my question is how do you think about given the case law, the state of the case law, how do you think about chevron deference? what is your sense of where we are when it comes to deference to administrative agency sns. >> well, senator, chevron has not been overruled by the supreme court. as you said there is a debate among justices, including in congress about the appropriate scope much chevron but hasn't been overruled. if i were confirmed i would continue to follow that precedent. >> what are your thoughts about political accountability of agencies and what role that courts should give to that value when reviewing agency adjudication? >> senator, i think political accountability is very important
in agency decision making. it's part of the legislate macy of what happens with regulatory policy. which is that regulatory policy is set under statutes enacted by congress but implemented consistently with the democratically elected president's priorities. >> thank you, mr. chairman. >> thank you, very much miss rao for being here. one cannot escape the national debate over the last four or five days involving the governor the virginia. and actions, conduct or statements he made many years ago. and whether he should be held accountable today for those statements or actions and whether that affects hi ability to serve in public live. are you familiar with that debate? >> senator, i have seen some of the articles. >> it is interesting as we consider nominees, yourself includes that we look into their backgrounds as to what they've said and done in the past as some indication of their values and their judgment.
and you have described your early -- and i might add controversial writings, as cringeworthy, inelegant and at one point idealistic, which was kind of hard to reconcile in my mind. what do you think should be the level of accountability of a person seeking a position such as you are for things that they have said and done, even 20 years ago. >> senator durbin, respectfully that's an important question for this committee but as a nominee sitting before me i think it would be presumptious to comment on how this committee does its advice and consent function. >> i'm asking you the human side of this as senator kennedy did. i'm asking you what you think in terms of -- let's go back. i mean there were times at yale you were just downright controversy. pl your statements on date rape have been quoted in and requoted over and over again. you've said in response to the chairman here that you were just
trying to warn women to use common sense. to avoid sexual exploitation. do you consider that idealism on your part or cringeworthy? >> you know, senator some of those -- those comments or the way i expressed myself i certainly regret. but i was also very clear about the responsibility that men have when they commit those horrible crimes. >> i could quote from the article. i won't backup. but there are things you said which contradict the statement you just made. i want to talk about myths for a moment. you also said at yale that a group called the bisexual gay and lesbian co-op was spreading myths about aids what were you refers to. >> my attention was drawn to that. i honestly do not recall. >> then let me ask you about another myth statement. in november of 1993 the in the yale free press you wrote an article entitled submission, silence, immediate yolk trit. myths of sexual and racial
oppression prototyping themselves pb create hysteriaen a lead to the formation of some whining new group. one can only hope to scream perspective just a little perspective, darling. what are the myths of sexual and racial oppression that you were referring to in that article? >> you know, senator, i don't recall precisely. but it's -- you know, look, i've -- you know i've always been someone who has taken problems of sexism pan racism very seriously. and you know partly what i'm responding to is a nar reset of issues on the yale campus in a specific type of activism and multiculturalism that existed at yale at that time. and i guess i -- you know, i always thought it would be best to have more tolerance and understanding rather than dividing people up into -- into groups. >> tolerance of sexual and racial oppression? is that what you're asking for. >> no tolerance of racial differences, understanding
between different racial and ethnic groups. >> i don't think that's consistent with labeling sexual and racial oppression as a myth. do you have any doubt in your mind that there has been throughout history and even in our country oppression of people because of their gender and race? >> no, i do not. >> well your early writings raise questions about your values and how many of those you bring to the table today and want to take into future into a courtroom. and i think those are legitimate inquiries on our part. and i just cannot reconcile something which is cringeworthy and idealistic. how do you reconcile those things. >> well, senator i think i had a kind of idealism about racial relations. i went to a school that was very diverse. friends with from all different bacteria backgrounds. growing up as an ethnic minority i guess as it were, you know inspired by martin luther king's
vision we should be judged by the content of our color and not the color of our skin. and maybe that does seem idealistic and naive today. but that was inspirational to me when i was- when i was starting college. >> miss rao i would struggle to reconcile what you said about racial oppression as a myth with the legacy of dr. martin luther king. i can't understand that brand of idealism. thank you, mr. chairman. >> okay. senator leahy. >> thank you, mr. chairman. i want to start by asking a few questions about a topic i know is everyone's favorite which is the intersection of administrative law and constitutional law. in my small town of alpine, utah we speak of little else. you know there are some people thinking of this as some sort of distant esoteric topic. but we both know this this is
part of the functioning of our republic. in federalist number 47 claims madison wrote that the couple lapgs of all powers, meaning legislative, executive, and judicial, is itself something that doesn't just lead to tirn tierney it's the definition of tyranny it's pef a de tocqueville predicted if it came to the united states united states it would take the fornl of a immense and tutleery power regulating the mantai details of people's lives. these topics are not merely he is orterric or described as philosophical. they have a real impact on the rights of individuals on the freedom much people within a free society. and they're essential toward safe guarding our own liberties, because anyone -- any country in
its constitutional system of government if it has a constitution can claim to have a bill of rights. but whether or not the bill of rights means nipping depends for the security, for its enforce ability on the protection of the people, by means of prohibiting anything that would lead to the kpefsive accumulation of power in the hands of the few. one of the -- and this gets us to what you have focused on throughout your academic and professional clear in administrative law. as you know there's been a lot of debate in recent years about whether chevron and our deference are lawful. and unless or until the supreme court changes the law, courts are required to kefr testify to agency interpretations of ambiguous statutes and regulations. but one problem with these rules is that ambiguity may mean different things to different people. so i guess my first question for
you is do you think you are more or less likely than others to see a particular provision in a statute or regulation as ambiguous? >> you think that, senator lee. it'sed hard to say in comparison with others. since i've -- but i think it's important when looking at one of these cases to consider the statute for all that its worth, right. and sometimes a provision that may seem ambiguous at first blush is not ambiguous when you really take into account the statute as a whole, its structure, how the provisions relate to one another. i think there is usually a lot of meaning that can be found from the text of the statute. >> what happens when congress excessively delegates its power? is that a problem? >> well, senator, the supreme court has recognized in all of its cases relating to the non-delegation principle that non-delegation is a corner stone of separation of powers. the constitution does give the legislative power to congress. and in part because they are democratically accountable to the people.
so that has always been recognized as an essential principle in our system. >> do you -- a lot of commentators defend the president doctrine on the grounds that it's impossible to formulate a judicially manageable principle by which to apply the non-delegation doctrine. on the other hand, some would argue that it's a problem any time a non-dell georgiaable duty is delegated what's the best way to resolve the dispute. >> it's a difficult question. the supreme court has on the one hand recognized the importance of non-delegation but used a standard, the intelligible principle standard to judge whether congress has in fact delegated its authorities. and of course i would be bound to follow that precedent if i were to be confirmed. and, you know, it's -- it's something, though, that some justice justices have raised
questions about and as you know it's something i've written about in sclrly writings. >> when we speak of the judicial manage ability of a standard, what are we referring to? >> when we have a standard that's -- whether or not it's judicially manageable tell us what that means. >> i think that that standard means be, you know, is there a -- is there some legal standard the skort can apply in that particular case? is there some provision of the constitution that the court can apply? >> okay. i don't have anything to add on the substance of your college writings. you've done a good job of explaining the content and the context and what you were trying to accomplish. but i do want to take a step back for a minute. there is a new reality that has set in in which we have had more than a few nominees criticized for their college writings. we have even scrutinized at
least one nominee as high school writings. there are some things you can write in college that could -- could disqualify a person from later -- subsequent service in political life in the judiciary or otherwise. for judges i think the standard should involve whether the writing in question shows that the person cannot be impartial. and that is quite obviously not what we are dealing with here, not anything close to that. for the most part i think should be allowed to say when i was young and saw things differently through the eyes of a young person, i -- i said x. and i'm sure you've reread those articles. and winced at parts as you have indicated. there are some passages- and i'm sure some articles you wish you hadn't written or if you were to write today you would write
differently. but the same could be said for everyone in this room. the same could be said for everyone i know who went to college and has later gone on to do something else. people grow. they learn. and we should allow that -- those changes to be taken into account. there is certainly nothing disqualifying here. and i'm certain that there aren't many people in america who want to be judged by what they said in college. and here is the deeper issue. judicial nominations. >> less. >> if i could get one more sentence. judicial nominations have become a blood sport and we convinced ourselves because judges are important it's all fair game. that's not right. and it shouldn't be the case here. thank you. >> senator klobuchar. >> thank you very much, mr. chairman. administrative rao i wanted to clarify one thing. i believe you said to senator feinstein that you will not commit to recuse yourself to
recuse from cases involving regulation in the administration you worked on. >> that's not correct. i think recusal is a an important issue and as i said i would take it in a case by case manner and carefully consult the statutory standards, following the precedence of my colleagues. there are a number of of people gone from executive standard. >> so you are not going to commit to recusing you're just going to look at them case by case. >> well, you know, i haven't been confirmed yet. i've not been a judge. i would need to look at the recusal issues carefully and take that obligation very seriously. >> okay. in august of 2018, the administration announced a replacement for the clean power plan. and that would have reduced carbon dioxide emissions. . many of us were involved in that according to the epa on data in could lead to 1,400 additional premature deaths a year. is that a case you would recuse yourself on if we were to enact a similar bill or rule like that
would come up to you. >> well, senator that rule has been reviewed pat oira. i would apply the recusal statute standards to that. there's not been a final rule however that has been refund by my office. >> do you believe the costs of the rule outweighed the benefits? >> well, there is, you know, partly what's been done is we have continued to use some of the analysis from the previous administration and show the range of uncertainty about what some of the impacts of the rule would be. that rule is currently in the propose stage. there was -- there were many comments. and the two ep and and the department of transportation are working to finalize that -- or i guess. >> you don't have a few on the cost benefits on that? >> well that's something that we have reviewed appear worked with the agencies on and we haven't yet seen the final rule. >> the trump administration has a 5% success rate, according to the non-partisan brooking institution report released last october -- the administration has a 5% success rate defending
agency actions in court. previous administrations have had an average 69% success rate when defending their actions. and that includes republican administrations as well. in your current position you're responsible for reviewing agency actions to make sure they are supported by facts and evidence. so this suggests to me that the administration is taking agency actions far outside of the main stream, especially when with he know judges are denks to agency actions. how can you explain the sharp decline? >> thank you, senator. you know, i have seen some of those studies. there are of course different ways of counting the litigation record in the courts. but it's -- i think -- art pennsylvania of every administration that individuals and businesses challenge regulatory action and our courts respond to that. some of those cases are still going up on appeal. some of those are about rules that were decided before i was confirmed to my current position. >> okay.
you've been extremely critical of the consumer financial protection bureau saying that quote, hope a lot of what the bureau did will be rolled back. you also wrote that the structure of the bureau is unconstitutional because the president can't fire the director. as we know, it's given back the bureau $11.7 billion in relief to 27 million consumes in the u.s. if you are confirmed, which -- by the d.c. circuit -- in the d.c. circuit you'll hear challenges to the bureau rules. how can we expect to you give fair consideration given the past statements and suggestions and recommendations you've made? >> well, senator klobuchar those were writings i did as an academic, as an academic commentator when i had the freed to speculate on abstract questions of law. of course confirmed to the d.c. circuit i would have a different rule and put aside academic views the follow the precedents
of the pruitt. >>s would you up nold chevron. >> i would follow it it's a press den. >> in the 2014 law review article you wrote that the constitution requires the president be able -- this isn't high school this is law review -- that the constitution requires that the president be able to fire at which will the heads of independent agencies such as the ftc, s.e.c. and even the federal reserve. can you cite any majorities supreme court that support your view that the constitution would require this? >> well, senator, there are -- there is the myers case, the early case, and but currently my article was about the structure and text of the constitution and looking at that in a sense. but i recognize that humphrey excess had execer is good law and if i were confirmed i would follow the precedent with respect to the constitutionality of independent agencies. >> thank you. >> more more till sfwlies miss
rao thank you for being here i wanted to give you an tupt that i think senator cornyn spoke up when you were having an exchange with senator blumenthal. could you better describe the context of the role that you were playing in the interview where the violence against women and school safety act came up and the word grand standing. can you describe that better for maybe reporters and other people who may take sound bites out of here versus the full context of that experience. >> sure, that was -- i haven't reviewed that interview in some time. but it was about a specific book. i think the bock book was called overruled and the author arguesing for more judicial involvement in reviewing statutes. and so so we were -- we were having a discussion about just how active the court has been with respect to hearing challenges on the commerce clause. and of course knows are the stats that's referenced the guns
free school zone act. the violence against women act are important statutes not my intent to disparage them. >> i think snorp hawley did a good job of describing other actions. i can stee as i walk to the kpool later today they only remember a context here i think it was presented out of context. i wanted to give you an opportunity to respond to that. can you tell me what your aba rating is. >> yes i was rated well qualified. >> well qualified. and the if i recall i think it was someone who came before the committee other members expressed concern about your experience. senator -- or not senator. kagen. now justice kagen probably had kind of a similar profile and experience to your own. is that right from your recollection. >> that is also my recollection. >> i understand that she enjoyed a lot of support. actually support from bowing sides of the aisle. i -- the only other question
that i have really relates back to some of your writings earlier. and somebody has said they were cringeworthy used the various different descriptions. but tell me what -- what motivated you to -- what sort of life experiences or other factors back in that time when you were in school motivated you to take on some of the issues? and if you were to write them today, are you saying you step away from some of the concepts or just do a little bit more eloquent job of describing conceptually what you were beginning to form as a young person in school. >> well, thank you senator tillis. i think maybe a little of both. >> which ones would you say that was dumb i should have never done it we have had people come before the committee appear do that i'd like to know maybe that first. >> i think that there is certainly some sentences and phrases i would -- i would never use today.
and -- and you know, i have just because they don't reflect my views, the way i express myself. you know, i think it's also important to consider the context of what was -- writing at yale in the early 90s, right. we were a bunch of kids on a liberal arts campus writing for each other, right. and there were 35 undergraduate publications. i think we all fashioned ourselves scribblers on the current events on campus. and you know, i think it was just a specific time. and frankly a lot of the quotations that have been mentioned here don't even -- aren't even a full representation of all the many columns i wrote while i was at yale on a whole range of different topics. and the committee also has before it my record since i left college which includes all the sclorly writings, speeches, congressional testimony, my public service, my service at oira. oefl that can all be taken into context. >> i hope so. because -- in a couple of instances you kind of get the
read for how the narrative is going to go around here by the questions various people in the press ask you. some legitimately asking questions because they are curious others are trying to build a narrative. i would encourage them to go back and understand the context in some cases and other cases where you simply change an opinion because you have witnessed more sunrises and sunsets and you're a wiser person today than back when you were in college. so, again, for those who say that your experience is a concern they should go back and look at people that they have enthusiastically supported who had similar proefrms one who a supreme court justice now. and we should keep in mind the aba rated you well qualified and why i'll be supporting your nomination. >> thank you, senator. >> senator whitehouse. >> thank you, mr. kmarm. miss rao i worry less about what you wrote at yale years ago and
than whose interests you serve at oira and how that moves with you to the d.c. circuit skort if confirmed. we hear a lot in the committee and the press how the president is trying to push through lots of conservative judges. i don't see much conservativism in those judges. what i see is judges who are predictably likely to rule for specific big special interests. and you see et hands of those special interests in the process of selection. we'd like to know more with about it but the federalist society doesn't disclose donors clearly. we do know from the white house, the white house said is said it insourced the federalist society to make their selection of the last supreme court nominee. we then see a confirmation process that is just rotten with dark money. one donor nearly $18 million. we don't know mo that donor is. and then we see the same groups
turning up in front of the courts, circuit court, supreme court, as amicae. it's not always easy to figure it who it is because the rules are vague about disclosure. it's probably the worst policed form of influence seeking in our government right now. but what i see over and over again is an instinct to protect the role of dark money. because dark money is the vehicle for all these other powers. i see an instinct to protect big polluters at all cost as if there is no public on the other side of the regulatory balance. the firearms lobby, big instinct to protect them. and a very strong lean in favor of corporate political powers. and against the accountability of corporations either to an honest knowledgeable regulator or to a court or a jury. now, the courts and juries were set up to deal with in problem
because the founding fathers new about special interest influence and legislatures and in the executive branch. but what i see from the courts is a desire to move as many questions as possible to those areas where the special interests have the most power. and i think that's a matter of real concern. what makes me say that this is not a conservative judicial doctrine is that when you look at conservative judicial doctrines they include things like respect for the will of elected branches, like judicial modesty. narrowing the decision to what's least required to decide. stare the ziesis respect for the press den and the famous scaliaism, originalism. in various cases every one of the so-called conservative judicial doctrines has been completely run over in the path to delivering a win for the big donor interest. so it's hard for me to align
conservative judicial doctrine with what's going on here, which is why i say these aren't conservative judges any longer. s in basically an effort to krp the court for big special interests with judges who rule predictably for knows big interests. time will tell in your case. there is nothing i can ask you to answer here now that will difficult eulogy you're putting finger on the side of the big polluters thumb on the scales for firearms industry. helping corporations avoid accountability any of that time will tell. time is already telling at the supreme court. and that's what i want to make a record of here today. the supreme court is now up to i want to say 73 partisan decisions, 5-4, with republicans and democrats allied on different kinds. in the chief justice's roberts's the tenio you are tal call emthem the roberts five, the activist republics. 73 decisions in which their --
they've had a particularly important issue for republican interests in front of them. and in all of those partisan 5-4 decisions the big donor interests won. 73-0. this from a guy who said he was calling balls and strikes. give me a break. helping republicans win at the polls has been a constant theme of the court, whether it's hurting unions or helping dark money, or allowing voters suppression, or protecting and enshrining jerry mannereding. helping corporations vafd accountability totally with no mention of the seventh amendment with regard to protection from employers who might be discriminated against. consumers who might be injured or other parties injured by their actions. and then of course the big donor interest wins for polluters and the gun lobby that get thrown
their way like a christmas present. what i see is a court that is predictablically. infalably likely in the 5-4 decisions to vote for big republican donor interests. i think it's time we clean it up. and that's in the long run going to do a real disservice to our courts to have a record like that of having so almost slavishly followed those interests and those circumstances. so i hope you'll do a lot better if you get on the court and not just fall into that rut. >> okay thank you, senator. >> senator hawley. no, i'm sorry. ernst. ernst. i'm sorry. >> thank you very much, mr. chair. and mrs. rao, you've been nominated to serve on the d.c. circuit. and although the d.c. circuit can be described as primarily handling federal dplfr law i believe that judges serving on the very powerful court need to share the same values and morals
as any other judge. and that includes a number of sensitive topics and concerns that i and the vast majority of the country hold dear. and so i'm not going to mince words. i've had a chance to review a number of of your writings while in college. and they do give me pause not just from my own personal expenses but regarding a message that we are sending young women everywhere. and i've said time and time again that we need to change the culture around sexual violence from our college campuses to the u.s. olympic committee, to our military, and beyond. and a large part of in is ensuring that young women feel comfortable sharing the stories and experiences that they have endured and that they are given a chance to be heard. and that they know that we hear them and that someone out there actually cares about them.
i'm thankful for the tune to serve on this committee. i'd like to discuss some of the issues with you today. so right out of the gate, do you believe that rain is wrong. >> absolutely it's a horrific crime. >> and who is at fault in a rain. >> the rapist, you know the man who commits the rape is of course at fault. >> man or woman. >> man or woman, but often the man. >> you wrote on these matters in college, which were about 25 years ago. and just describe how your thinking has actually evolved on these matters as a number of my colleagues have asked. >> thank you, senator. you know, as -- you know, i've had a lot of experience since that time. writing in college. and i don't think i would express myself in the same way. these are horrible crimes. and i wouldn't write anything that might be implied to blame a victim or make it less likely for a victim to come forward. i think it's very important that women on campus and elsewhere
feel free to bring forward claims of sexual assault or rape. >> thank you. i appreciate that. and in your writings you did talk a lot about date rape in the context of college campuses. we know it does happen elsewhere. discussing the concepts of blame and responsibility, what has informed your decision as you have moved through the years? and how have you come to understand that maybe no one -- or the victim is not to blame or the survivor is not to blame? maybe explain that to us, how you have informed your decision through the years. >> sure. sure. a victim of a horrible crime is not to blame. and a person who commits the crimes should be held responsible. i did -- i tried to make the common sense observation that women can take certain steps to avoid becoming a victim.
but that's the goal in making it less likely. but should someone be a victim then they should not be blamed. and you know, there is the responsibility is with the person who commits the crime. >> okay. i'd also like to ask you also in the feminist dilemma, there was a comment that you made. you state that camille's view on date rape has been criticized for its insensitivity because she seems to quote, blame the victim. pag leah accurately describes the dangerous feminist idealism which teaches women that they are equal. is that a dangerous -- a dangerous feminist ideal is that women are created equal. >> senator, i very much regret that statement. and i've always believed strongly in the equality of women and men and for equal rights and opportunities for
women. i'm honestly not sure why i wrote that in college. >> okay. i'm glad to hear you admit thatted to today because i would hate to think that women would not be treated equal under the law. >> of course and if i were confirmed i would treat all people who come before me equally. and administrator justice without respect to persons. >> i appreciate your explaining some of the views that you had from college. i hope that we can have further conversations about this. >> yes. >> thank you. >> i yield back my time. >> thank you. a statement from a prior nominee -- i would hope a wise lieutena latino. justice soto mayer. the argument from my side was that she is biased. and when you look at her life i didn't belief that.
when i look at your life i think you are a very fair squared away person. senator hirono. >> thank you, mr. chairman. i ask these two questions of every nominee coming before any of my committees. they are since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature. >> no. >> have you ever based dplin or entered into a settlement related to this kind of conduct? >> no. >> as a law professor you continue to be critical of affirmative action programs, for example in a 2009 law review article you argue that such programs i'm quoting confirms and reinforce traditional and historical associations between race and disadvantage and imposes what you term dignitiary harm i'm not sure what that mean
what does it mean. >> senator hirono that is an article about different conceptions of dignity and constitutional law. the term dignity is used by the u.s. supreme court and other constitutional courts in other countries. and that is -- it was an attempt as an academic to explain the different senses did dignity was used in the cases. that was the context of the writing. >> and see something that you would apply to any case that is come before you, whether or not a regulation or any -- any issue that came before you imposes dig itary harm. >> these are very academic and abstract discussions of a concept of dignity in specific cases. you know, those are all things i would put to one side if i were fortunate to be confirmed. i would follow the precedents and the law in cases that come before me. >> here is an actual situation. i think you responded to a -- something that happened in
france where they made dwarf tossing illegal. and you -- i think that you said something like, you know, it's up to them whether they -- this is an individual decision. but why wouldn't -- it would seem as though you are writing about dignitiary harm would apply to something like dwarf tossing, wouldn't it. >> senator, thank you for the opportunity to clarify that. again, it was in the -- i wrote about a particular case in france that was -- that used different conceptions of dignity there was a town in france that banned dwarf throwing. there was an individual mr. waken heim who made his living doing that. and he said this ban implicate aed his dignitiary interests. in my article i don't take a position one aor another. >> i think your article has been interpreted that you were okay with a dwarf tossing. this is one of the reasons that an organizations that supports their -- their issues is very
much against your nomination. after elina kagen was nominated to the supreme court you criticized the confirmation process and wrote that nominees are and quote to choose from certain stock answers process, nominees are confirmed based on platitudes. you argue the nominee should not be confirmed based on incantations of the right formulas without an examination of their actual believes. sitting here through all of the nominees that we have had hearings on that, that what we do get are platitudes and i believe that public discourse suffers. it's very difficult for us to ascertain what your actual believes are. since you believe that we should get to the actual believes, it must be because you believe that judges do make decisions based on their actual believes?
is that not so? isn't that why you criticized the confirmation process? >> senator, in that article, i suggest that a nominee's views on judicial philosophy are fair game for discussion and i've sought to give straight forward answers to those questions. >> are you saying that because -- you have sat here saying as does every other nominee that you will follow precedent. judges do not come here as blank slate. you bring ideological perspectives that you may have. there's no question in my mind that a judge's actual belief is what's impelling a lot of the decisions and that not just following precedent because a lot of times precedent is not on all fours applicable to any case before you. are you saying that you sit here
and tell us that you have been disclosing your actual believes because you didn't respond to the question that my colleague asked you about when life begins? >> senator, i come here to this committee with no agenda and no ideology and i would strive if i were confirmed to follow the law in every case. >> that is what they all say. thank you. >> is it ever appropriate and what would be your view of using foreign law as a -- as a decider in a case and when is it proper -- it even proper to make a referral to it? >> thank you, senator grassley. >> the law of some other country. >> there may be some instances where the law of some other country is under issue and that would be the applicable law. but foreign law is not generally
used to interpret our constitution or our federal statues. >> would it be wrong to say it's never appropriate? >> there are some constitutional provisions that rely on the law of nations. so there are some context in which the -- which foreign law and international law would be appropriate. >> now i know you're bound by supreme court precedent. when if ever would it be appropriate for when your circuit to overturn precedent? >> it's not appropriate as a court of appeals, we are absolutely bound by the precedence of the supreme court. >> i know -- i didn't -- you didn't hear the clarification. i know you're bound by the supreme court. when would it be appropriate for a precedent of your circuit to
be overturned? >> sorry. there are considerations. normally you want to follow precedent but there are certain features when a precedent may be overalled. you look at the longevity, the reliance interests, there are certain standards for when a precedent may be overalled. >> define for me what you think about the terms activist judge or definition of judicial restraint? >> sure. so i think -- an activist judge is seen as a judge who goes beyond the law to reach a particular result and i think it's important for judges to follow the law wherever it leads them and whatever result it leads them to. and i would strive to do that if i were confirmed. >> what assurances or evidence can you give us that if
confirmed your decisions will be grounded in that precedent in the text of law rather than any political ied lolg you might bring to the bench. >> thank you. i think -- having had experience in all three branches of the government, i have a good appreciation for the different role that each of the three branches play and the independence of our judiciary is essentially to our system. and if i were to be confirmed, i would work to uphold that in every case. >> my next question i want you to know that i'm very much an advocate for cameras in the courtroom, including your courtroom, if you're on that circuit, including the supreme court, although that gets a little more controversial. but what are your views of cameras in the courtroom?
>> i don't have a view on that subject. i know it's one that's been discussed and debated. >> you're going to go to work on the circuit with the least case -- i think it's the least caseload of any circuits. what do you think about the caseload of your circuit? >> well, i do understand that there are fewer cases in the d.c. circuit but my understanding is that many of the appeals that come are highly complex and so often much more detailed and difficult. >> you're lucky that i probably would not oppose you just for the reason that there's too many judges on that court already. there's going to be a time when we ought to get this down to at least three less than it is right now to spend the
taxpayers' money wisely and to make sure that the caseload from one circuit to another is more fair. at this point, i wouldn't -- one time we reduced the circuit by taking somebody from the d.c. circuit and put them on the ninth circuit. i'm not sure that was a wise decision. but at least it did reduce the judgeships in your circuit by one. so i hope there's another vacancy that we can just not fill. >> okay. senator harris. >> thank you. in 2016 the obama administration enacted the voc rule. in april of 2018 the current president signed a law repealing the rule and in a speech that you gave before the united states department -- chairman of congress, you applauded the
rule's repeal. are you aware that more than 5,000 workers were killed on the job in 2016 and on average that is more than 99 deaths a week and more than 14 deaths a day? >> i'm not familiar with those specific statistics. >> do you believe that when government is required to keep data and when employers are required to keep data, it allows us to be better in terms of public policy and ensuring that we avoid issues like workplace injuries and death? >> yes, it certainly can be. >> why did you applaud the repeal of the rule? >> just to be my clear about my role. those policies are set -- >> let's talk specifically about this one. why did you applaud the repeal of the rule? >> i don't recall discussing that in that speech. >> this was just in 2018 that that happened. you don't recall what happened last year? >> i don't. >> you said when having a
conversation, women should take certain steps to avoid becoming a victim. what steps do you have in mind? >> senator, it's sort of the common sense idea about, for instance, excessive drinking. that was advice -- >> that's one step you believe women should take to avoid becoming a victim of sexual assault. >> it's a way to make itless likely. it's not the blame the victim. we're talking about what can you do to keep yourself safe -- >> are there other steps you should you believe -- >> that is one of the issues that i discussed. i'm not sure if there are others. >> so do you believe if a woman does not take those steps, that she is at fault or partially at fault for what happens to her? >> no. >> what is the significance of taking those steps? >> i think it's just the significance of trying avoid becoming a victim of any crime. we take different steps to try to protect ourselves from
horrible crimes such as rape. and i think what we want is for women to not be victims. >> so your previous writing have been mentioned many times in this hearing. they certainly express strong opinions about the subject and for that reason raise concerns about your current perspective on these issues. you have in '93 said, quote, date rape, it develops an artificial world in which women are free of sexual danger and no always means no. in your current view when does no not mean no. >> no means no and i regret writing that when i was in college. >> and you said that a good way for a potential date rape to be avoided is for a woman to stay sober. if a woman drinks to the point
she can no longer chaos, well, getting to that point was her choice. do you stand by those comments? >> i was trying to make the common sense observation -- >> i'm concerned about your current views. do you stand by your comments. >> i do not. >> okay. and last week i joined 35 of my colleagues in the senate urging the department of education to rescind the proposed rule that would narrow the definition of sexual harassment. we opposed the rule because it fails to account for the experience of survivors and it hampers school's ability to respond to complaints. under your leadership, has the office of information and regulatory affairs evaluated this proposed rule? >> we did evaluate that rule. it's currently a proposed rule and the comment period just
closed that's week. >> what's your opinion on the rule? >> my opinion on that rule is not what's relevant in my current position -- >> i would argue it is relevant. if you are actually confirmed on the d.c. circuit, you of course will be responsible for revealing regulatory appeals. so under your leadership, if the office has reviewed this rule, what is your opinion about its efficacy? >> this is a policy of the department of education as you stated and they drafted the rule. my understanding is there were thousands of comments from the public. we take that public process of notice and comment rule making very seriously and it will now be up to the dmt of education to consider those comments in terms of finalizing the rule which we haven't seen that final rule yet. we make sure that the agency has responded to the comments. >> my last question, mr. chairman, if you -- once your office under your leadership has commented on the proposed rule,
will you commit to recusing yourself to any challenges on this rule if it is litigated before the d.c. circuit and you are confirmed? >> senator, again, i will take recusal very seriously. i noted that some of the issues will require recusal, but i can't prejudge what those will be until i have a case before me. >> thank you. >> senator blackburn. >> thank you, mr. chairman. welcome. we appreciate that you're here. i have to tell you, i think what an amazing career you've had. university of chicago law, and then clerking at the supreme court, working in the white house, running a major regulatory agency, quite a resume, and i find it so interesting that much of the day's focus has been on writings that you did during your college years. i do want to come to one story that i think is so interesting,
your story, your parents' story, immigrating here from india which really does represent so much of what we cherish is the american dream. and there's an article that you wrote about bringing a friend to your family's thanksgiving dinner. so i want you to speak, you know, cap that story quickly and speak a little bit about how that in your family's experience really helped to shape your identity. >> thank you, senator. so the column that you referenced, i took my friend dan who's an irish catholic to thanksgiving and he got to see the whole range of what happens at thanksgiving with the rao family which included many different meals and lots of people, lots of questions about whether he was my special friend which he was not.
otherwise obviously i wouldn't have brought him. but it was about celebrating all the closeness and love that my family and friends have. and although my parents were immigrants from india, they embraced lots of american traditions such as celebrating thanksgiving. and maybe put their own spin on it. i feel very fortune to have grown up in such a warm environment with so many wonderful people. >> three quick questions so we can put a cap on your college writings. do you hold the same views that you expressed in those college writings as you do today? >> no, and i regret some of the language that i used. >> number two, will you allow your personal opinions to influence your ability to apply the law and the constitutional as written? >> no. >> number three, will you fairly apply the law for every party who appears in your court
regardless of their gender, race, ethnicity or religion. >> yes. of course. >> thank you. i want to move onto congressional power and some of your recent writings. last year you published an article about congressional power in the administrate state. and there's a fear that representative law making is being displaced by agency regulation. this is something that concerns me. and you wrote -- and i'm quoting you, congress currently stands in the shadow of the administrative state and you sue plied suggestions on how they could fix its role. and what are your views on how congress could reassert its law making power and oversight authority? >> i do think that is a difficult question. and it is one i have addressed in my writings as you mentioned. some of the options are less
delegation to executive agencies, more law making by congress. political scientists have thought about other changes, but the main point of my article was to argue about how important it was for congress to exercise it's law making responsibilities. it's a crucial part of our constitutional democracy that law making be done by people who are democratically elected. >> you have presided over a period of deregulation. and tenesseean talk a lot about how pleased there are to get some of the regulatory burden off their back. so where you have been sitting, what would you say is your primary contribution to pushing forward with deregulation and seeing the economic growth that we are now seeing in our country? >> well, thank you for that question. i think one of the things we've
been most focusing on is moving forward with regulatory reform in a way that gets government out of the way, where it's not working. there are a lot of regulations on the books that don't have the effects that were intended. and we're looking to pull back the things that are no longer working. and i think we've enjoyed quite a measure of success for that in terms of helping individuals and small businesses and families. >> thank you. my time has expired. >> senator booker. >> thank you, mr. chairman. during your time overseeing the department of housing and urban development you've rolled back housing discrimination. one of these protections was about the agency's impact standard for housing discrimination. this is not a novel concept. it was established, supreme court precedent. businesses can be held liable for housing and lending practices that have an affect.
but the department is trying to role back this protection. you're overseeing the agency rule changes in this administration. why would the administration want to undo such well established policy and supreme court precedence when it comes to remedying housing discrimination based on race? >> well, if i could just take a step back on this housing and urban development rule. the agency put forth an advance notice of rule making last summer -- >> i know the procedures. i'm wondering -- >> there's some hard questions there and as you know there was a supreme court decision in 2015 that addressed this issue and so the advanced notice of proposed rule making was designed to tee up a set of questions about whether the standard should be changed and if so how. and i think maybe either we've
received is proemzed rule that's based on that notice of rule. >> this terrible experience of housing discrimination, my family even faced it itself, getting rid of this protection for housing claims it will make it harder to ensure the promise of the fair housing act, harder to stop discrimination. and so do you understand that getting rid of this well established protection would actually endanger our ability to hold people accountable for civil rights violations. >> the proposed rule hadn't been made public. secretary carson is working on addressing that issue and i think we need to see what the rule ultimately says. but it's under review so i can't comment on the substance of it. >> in a 2008 article, you criticized the supreme court's landmark decision in lawrence v. texas. you said that the court's
decision, quote, older traditions in favor of an emerging awareness of the meaning and the scope of liberty. what in your view should the supreme court have been in the business of upholding an older traditions as you said of laws that criminalize same-sex relationships? >> those were some comments made in the course of the an article of dignity and constitutional law. and it's a precedent of the supreme court which i would faithfully follow. >> are gay relationships in your opinion, moral? >> i'm not sure the relevance of that -- >> i think the -- if you think african-american relationships are immoral. do you think gay relationships are moral -- >> no, i do not >> do you believe they're a sin -- >> senator. my personal views on any of these subjects are things i would put to one side and i would faithfully -- >> you're not willing to say here whether you believe it is sinful for a man -- two men to
be married. you're not willing to comment on that? >> no. >> excuse me. >> i'm sorry. >> i didn't hear your response. >> my response is these are personal view are ones i would put to one side. whatever my personal views are on this i would follow the -- >> i have one minute left. in an article you criticized the supreme court's landmark decision which struck down the provision of doma. you said the quote had found a novel constitutional right to recognize same-sex marriages. and you said that the court's decision amounted to a political choice not a judicial choice. what do you believe the supreme court's decision to respect the status of a same-sex marriage, how was that a political choice and not a judicial one? >> well, senator, in that particular idea what i was saying is that in the case, it
did not recognize same-sex marriage as a right. it only recognized the right to have your marriage recognized if the state provided such a marriage. of course that later step was taib taken. but part of what i was explaining it was a rather empty right that was in that case. >> and you know lgbtq americans have faced a long history of discrimination, long histories of violation, intimidation, bullying, young youth report not going to school because of fear for their own safety at high rates and a lot of the provisions we're talking about became the law of the land recently. why is this administration currently trying to do so much to role transgenderer right protections and the like and these matters could very much be brought before you under the regulatory conception that
somehow protecting american citizens is burdensome? >> senator, i think civil rights and equal protection of the laws are two essential values. if i were to be confirmed, i would firmly uphold that. >> have you ever had an lgbtq law clerk? >> i've not been a judge. >> someone working for you? >> to be honest, i don't know the sexual orientation of my staff. i take people as they come. irrespective of their race, ethnicity, sex, i treat people as individuals. >> thank you, mr. chairman. >> senator cruz. >> thank you, mr. chairman. senate judiciary committee should not be a theater for mischaracterizing nominee's records or views.
nor should it be an achb for persecution. we've seen a growing pattern among senate democrats of hostility to religious faith. i was deeply troubled a few minutes ago to hear questions of a nominee asking your personal views on what is sinful. in my view, that has no business in this committee. article 6 of the constitution says there should be no religions test for any public office. we have seen senate democrats attack what they've characterized as religions d dogma. i don't believe this a theological court. i think the proper avenue for investigation of this committee is a nominee's record. so let me ask you about your actual record which is what this committee should be looking at, not our own personal religions
views, whatever they may be. you shared at your confirmation hearing your family's story about how your families left india, arrived in detroit in the middle of a snowstorm, without winter jackets and with just $16 and the optimism of the recently married. it has similarities to my own father's story. can you share with this committee a bit of your family's story and how this has impacted your life journey? >> sure. my parents came from india in the early '70s and they had their medical degrees. they worked really hard for not very much pay. i was born in 1973 when my parents didn't have very much but, you know, i had a really happy childhood. my parents were warm and loving and i grew up with many family
friends and i think it conveyed many of the values they brought with them about hard work and honesty and that's been a big part of shaping who i am today. >> much of the questioning from this committee has also focused on your college writings. and there has been language and characterizations that i think are false and distorting. so i want anyone listening at home to be clear, when it comes to sexual assault and rape, both are wrong, are evil, are criminal and should be prosecuted, do you agree with that? >> yes. >> as i sat here listening to the questioning and what was being described by democratic members, i thought what crazy thing must she had written in college. and i pulled out and read it. and i read, for example, in one of the the articles that you wrote clearly if the male
student forced the woman to have sex intense her will, then he should be held responsible. and a man who rapes a drunk girl should be prosecuted. what is -- you should college students should refrain from drinking to excess. and i should note that that's very good advice for any college student. but i intend to give them the advice not to drink to excess and it is unquestionably true that any college student that drinks to the point of getting drunk and losing control risks being a victim, risks being vulnerable. when i was a student in college, i recall a student who was there with me who drank to excess and got on top of a train and elect
cuted himself, lost three of his limbs. that is very good advice for a college student. don't drink to the point of loosing self-control. and i just want anyone watching this to be clear that you were unequivocal then and unequivocal now that anyone who committees a crime of sexual violence should be prosecuted is that right? >> that's correct. >> the caseload involves a great deal of administrative law questions. what in your professional background do you believe has prepared you to be a d.c. circuit judge? >> yes, thank you, senator cruz. i believe that much of my practical and academic experience relates to the specialized docket of the d.c. circuit. i've worked in all three branches of the federal government. i'm currently the administer where i oversee policy and look
closely at whether those regulations are consistent with law and whether they meet certain standards. i have -- and as a scholar for over a decade, i've been writing about these types of issues in constitutional law and administrative law, separation -- >> let me ask one final question just because i'm at the episode of time. why should people care about separation of power? >> i think those restraints are essential to the protection of individual liberty and your founders created that structure to protect individuals from government overreaching and tyranny. >> just a point of clarification. he knows this because we're friends. i would defend, die for to protect the ideals of religious freedoms in our country.
i was simply saying that discrimination under any standpoint, whether it's against's someone's religion, race, and should not be tolerated. religion was used as a ruse to discriminate against african-americans, my parents told me stories that they felt it was objectional for blacks and whites to go to school together. i also know that he and i agree on the fact that no one should face discrimination in this country when it comes to their race, religion or even their orientation. thank you for that. thank you, senator cruz. >> thank you. i think that's the end of round one. we have -- i'm sorry chris. >> thank you. ms. rao, there's been a great deal of discussion about your college writings which i would agree are cringe worthy and have deserved and gotten a great deal
of attention. i want to submit for the record a letter from 54 south asian women who are civil rights attorneys who are advocates for survivors at length, it challenges some of the assumptions in your college writings. but that's not what i want to focus on today. i want to focus on your view of executive power and in particular the unitary executive theory and how not in college in the heated exchange of campus politics, but after completing all of your legal training as a professor, you wrote a law review article in 2014 where you talked very pointedly about your sense of the scope and reach of presidential power. i'll quote, the president must have the ability to remove all executive branch officers at will and then you go onto explain just how broad you think that power is. let me just put a point on this.
do you believe the president can fire at will a federal prosecutor who's investigating him, his family, his campaign team, his senior advisers, do you think the executive power goes that far? >> senator, in that article, i was writing primarily about the president's control over civil cases, over the administrative state and administrative agencies. the question of removal power in that context is not one i have written about or looked at closely. >> i appreciate that answer but it doesn't strike me as answering my question. you may have there been speaking to civil, not criminal. but the force and clarity of which you assert the reach of executive power over all, even including independent agencies strikes me to quote from that same law review article, the supreme court has repeatedly recognized all agencies including the independent ones are part of the executive
branch. wouldn't the special counsel be part of the executive branch? >> well, senator, respectfully, that is an ongoing matter of political controversy and could lead to lawsuits. as a judicial nominee it wouldn't be appropriate for me to comment on those zblishs is it your view that congress can't place any restrictions, even ones that put in statute what are currently regulations that protect a special counsel from removal by the president. >> i did not argue that in my articles. >> would that not seem an obvious conclusion that the president should be able to remove even the heads of independent agencies? >> one of the things that i try to explain in the article that there are competing interests.
that has to be balanced against the president's -- the president's responsibility for overseeing the executive branch. and so that -- i recognize in the article congress has important interest in those areas. >> and i was going to call on professor -- senator lee my colleague questioned you about whether or not tyranny results from an overreaching state. something i think was much more at issue in our founding. let me briefly turn to a supreme court case from 1988 where justice scalia in a single descent expounded this theory which has gained credence and followers. you may be at the head of that pact. you row agree with me that the power of removal was rejected by
the supreme court majority in morrison? is that not clearly the holding of the case. >> i think it does recognize some important limitations on the president's removal of power. >> and it morrison still a good law? >> it has not been overruled. i would follow if i were confirmed. >> what's the view of the d.c. circuit of morrison? >> the d.c. circuit has upheld the validity and recognized it's still good precedent. >> how recently? >> i think quite recently. >> i think in fact last year. i'm troubled i have to say not just by that 2014 article but by a 2011 article where you're going free enterprise fund and suggest that that supreme court opinion strongly strongs sfacht toir limits on the spt's removal power such as those protecting the officers of independent agencies are unconstitutional.
let me make sure i get this right. do you believe that the constitution allows the president to fire the chairman of the federal serve whenever he wants even to influence monetary policy for his own personal or political benefit. >> those questions are ones that are zpent upon the statutes. i was able to write about the law in the abstract. and i understand it's a different role when one becomes a judge and needs to decide them according to law and precedence. >> i think alarming writings in college aside, i think very recently in law review articles you've laid out clearly and forcefully a view of executive power so overreaching and so outside the mainstream as to be truly alarming to me in terms of
its potential consequences for the scope and reach of executive control and executive power. while i respect your refusal to answer directly given some of these things are current controversies, i also have to say these are no longer merely academic questions. thank you, mr. chairman. >> thank you, senator. now we finish the first round. i'm going to have to depart at 12:15. senator blackburn is going to chair after that. and i appreciate that more than you know. we've had senator feinstein, blumenthal, white house and kennedy request second rounds. let's start with senator feinstein. >> thank you. ms. rao, as i sit here and listen, let me tell you what the heart of my concern is and it goes back to my question which
is on recusal. it's my understanding that you have led the trump administration's regulatory agenda. you've worked on repealing the clean power plan regulation, repealing protections that address pay discrimination on the basis of race and weakening the saf fay standards that i spoke about. let me tell you how one of your predecessors before this committee responded. he was asked the same question and he said if i were confirmed, i would look carefully at the standards for recusal. that was your answer. but what he said was i can commit to recusing myself from any case that i worked on while in the executive branch. any challenge to presidential or agency action on which i have
provided advice. that's the answer that i look for. that you go in as a fresh human being without the bias of a prior workplace and use the talents that you have acquired in a way that only relates to the case before you. and it's rightness or wrongness legally. and you won't make that direct commitment. i want to give you another opportunity to speak in hopes that you will make that direct commitment and that will be -- and that is that you will recuse yourself from any case that involves something that you worked on as an executive in this administration. >> well, as i have said, i think recusal is a very important issue and it's one i would take seriously.
the question of rusele is very fact specific. it depends on the type of case that's brought. i currently see policy, it's somewhat different than a lawyer working in the white house counsel's office. so i would follow the statutory standards, i would talk to my colleagues and follow the approach that they have used and i would strive to be impartial and independent in all the cases i decide. >> let me sum that up. what it says to me in areas that i care very much about that have to do with environmental protection as well as other things, you would not be a positive vote. that's how this comes through to me. because you have worked as an executive. and unlike people that have come before us for this court, they have said, yes, i will recuse myself. you're not saying that. so i take the -- if you don't say it, i assume you will not
recuse yourself. with all the mum bow jumbo that you answered the question with, the question is will you recuse yourself and you will not say yes. >> i have not said yes. i will not say no. it's something i will consider in each case as it comes and i think it's important to take that seriously when cases come before me if i'm fortune enough to be confirmed. >> thank you, mr. chairman. >> thank you. senator kennedy. >> professor, clear something up for me, something my colleague senator feinstein talked about how you'll vote and not vote. you don't know how you're going to vote yet, do you? >> i certainly do not. in every case that comes before me, i carefully consider the law and the arguments of the parties and decide cases according to the law. >> okay.
your parents immigrated here from india, is that right? >> that's correct. >> have you ever been a victim of racial discrimination? >> yes, i think there are times where i believe i've been treated differently on the basis of my race, it's not a great feeling. >> did it happen when you were younger or has it happened when you were an adult? >> it's hard to say. it certainly happened when i was younger. i think we lived in a different time. my parents also faced different forms of discrimination in the workplace and, you know, i remember them telling me they went to go eat at a restaurant, you know, once when they were on a road trip and they were told, you know, this was in the early '70s. they were told you can't eat in the dining room but we'll put a table for you out here in the hallway. i was also encouraged to focus on the positive, all the great things in this country and all
the opportunities for advancement and all the good people who helped my parents along the way. so that was what i was taught to focus on. >> do you think our society has gotten better in terms of appreciating ethic diversity? >> i certainly hope so. >> i'm just curious, do you think it's possible to be racially insensitive without being a racist? i'm not trying to trick you. i want to know your thoughts? >> perhaps, yes. i think sometimes people lack exposure to different groups so there's a lack of understanding of differences. >> okay. i want to shift gears a second. can you tell me the difference between an originalist and a tex chulist? >> well, senator, i think originalists look at the text of
the constitution, of course, and then look to see what the original public meaning of those words were at the time the provision of the constitution was enacted. >> and by public, what do you mean? do you mean the drafters or the average citizen at that time in our country? >> well, i think it's usually meant to be a reasonable observer who was paying attention and involved in thinking about these issues. so kind of a reasonable objective observer at the time. >> at that time, in the late 1700s. >> yes. at that time. >> so -- are you an originalist? >> senator, i try not to put labels on myself in terms of judicial philosophy. if i'm nominated, i would follow the precedence of the supreme court which look at the original meaning of constitutional
provisions. >> if an originalist interpreter interprets the constitution based on the public meaning or the meaning to the average person at the time the constitution was adopted, do you think the average person at that time -- when the constitution was adopted, believed in, i don't know, desegregated schools? >> senator, it's not necessarily what they intended, the words would have been meant, it's what those words could fairly be taken to mean. in the context of the 14th amendment, the drafters of that used the very broad language of equal protection of the laws which, you know, regardless of what their intentions were, they
used this sweeping language -- >> but this is what troubles me. i'm not saying i disagree with it. i'm seeing how you reconcile it in your mind. if you're an originalist, you interpret the constitution as understood by the average american at that time. right? okay. do you believe that the average american at that time believed in integrated schools? >> you know, i don't know. they may not have. but they may have had an understanding of the meaning of the word equality, which was to treat people the same even if they did not believe segregated schools was a violation, they would have had an understanding that equality means treating people the same. that promise has been carried forward in your history in a series of important cases by the supreme court. >> that was good. thank you, mr. chairman.
>> senator blumenthal. >> thanks for the second round. i want to come back to this idea of the unitary executive theory and what you said and have written about it because i think it is an issue of paramount importance at this moment in our history and i am deeply disturbed by views that certainly create the impression of your belief in an imperil presidency to use the term. not in a law review article, but in an interview that you did with hewitt december 15th, 2017, he asked you about the authority of the president to direct or fire the attorney general or the deputy attorney general, special
counsel. and he said everybody who is not an independent agency answer to the president and therefore the president can direct them how to act, can he not? your response, that is certainly true. do you believe that the president can fire robert mueller, special counsel, or direct the attorney general to fire him? >> well, senator, the context of those comments were in the administrative context, the civil context -- >> well, he was referring to the special counsel. >> well, i was on that show to talk about regulatory reform and that question came up. but those -- the question you've posed is one that -- >> let me ask you, as you sit here, do you believe that the president of the united states can fire the special counsel or direct the attorney general to fire him? >> well, senator, those are questions that are inactive political debate and may welcome
before me if i were to be confirmed to it would not be appropriate for me to comment on them. >> well, i know that you've been reminded of your comment about -- the nominee is coached to choose from certain stock answers, and i know you're giving a stock answer, in light of your past comments, would you recuse yourself from that question if it came before your court since you've expressed your views on it. >> i'm not sure i've expressed my views on that subject respectfully and i would take recusal seriously and apply the standards that are relevant there. >> let me move to another topic. do you believe brown v. board of education was correctly decided? >> senator, brown is a really
important precedent of the supreme court and one that overturned plessy v. ferguson which was a real black mark in our history. >> so you believe it was correctly decided. >> as a judicial nominee, i think it's not appropriate for me to comment on the correctness. i would follow them if i'm confirmed. >> do you believe that griswold v. connecticut was correctly decided? >> that was a precedent of the supreme court which i would follow. >> how about roe v. wade? >> the same thing. it's a long standing precedent of the supreme court which i would follow if confirmed. >> well, i'm struck by someone who has said that you were a victim of discrimination, very
unjustly and unjustifiably, and yet you're unwilling to say that brown v. board of education was correctly decided? >> it's an important decision of the supreme court. but it's -- >> plessy versus perg son was a very important decision of the supreme court but it was wrong. >> and it was overruled by brown. >> that's why i'm giving you the opportunity to tell us you think brown v. board of education was correctly decided? >> it's an important and long-standing precedent of the supreme court which i would follow. >> it could be overruled too. >> it's hard for me to imagine any circumstance in which brown v. board of education would be overruled be i the supreme court. >> it's hard to imagine? but i'm asking you to state that you believe it was correctly decided. >> again, it's a very important precedent of the supreme court. >> thank you very much, mr.
chairman. >> senator. >> there was a letter admitted to the record, and that number has grown from 54 to 65 signatories and i would like to read from a part of their letter. i'm quoting, we believe in the importance of a diverse judiciary and if confirmed neomi rao would be the first south asian woman to sit on an appellate court. but we're alarmed around her record and we do not believe that she will bring independence to the federal bench. ms. rao, in 2017 you claim that
in fiscal year 2017 the administration had taken 860 deregulatory actions and delayed more than 1500 planned rules. you probably said the administrations deregulatory actions saved american families and businesses $23 billion. as our administrative, you noted that the administration is considering lowering the cafe standards and the vehicle administrations standards. will lowering standards save businesses money? >> senator, there are a number of costs and benefits to that proposed rule which were noted by the agencies and it's a very complex regulatory scheme. >> you said that all of these regulatory decisions and the one that you're contemplating saved a lot of money. i would say that lowering the
standards would save businesses money. next question, the administration is also trying to loosen greenhouse gas limits from power plants. will losening these standards save businesses money? >> senator, when agency propose regulations they look at a whole range of costs and benefits and the ideas to put forward regulations, whether they're regulatory or deregular tear that have net benefits for the public. in this administration when we're pulling back regulations, that's when pulling back the regulation will have more benefits to the american people than costs. >> well you have information on the cost savings to businesses, so going back to the 23 billion you mentioned, how much of that 23 billion was money saved by businesses versus families? >> senator, we don't necessarily calculate it that way, but a lot of the beneficiaries of
regulatory reform have been small businesses, small fishermen, farmers, and individuals. so there are a range of benefits that extend over wide swaths -- >> i assumed you had a factual basis for the 23 billion, would you be willing to submit to this committee or to me a breakdown of who saved 23 billion that you mentioned? >> senator, we've tried to be very transparent about how we've calculated this. there is problem more information than you would like on our website about how those -- >> your website will enable me to determine how much of the 23 billion was saved by businesses, whether large or small, versus families? >> well, i think, yes, going to the underlying rules will give you some of that information. >> thank you. i want to get to lgbtq rights. as a lawyer, you wrote negatively about two supreme court decisions that affirm the rights of lgbtq individuals.
in 2013 you argued the case that struck down the defensive marriage act was a political choice to favor recognition of one group's claims over another. and under your watch as the administer, the trump administration has sought to reserve regulatory protections for lgbtq individuals and schools, the military and in health care. so there is ample evidence that you are consistent pattern of -- with regard to the rights of lgbtq individuals and protections for them. so what evidence is there that lgbtq litigants can trust that you fully follow supreme court precedent protecting their rights instead of chipping away at them based on your prior
views. just as in roe v. wade which i doubt will be not overturned, those protections are being chipped away. so what kind of reassurance can you give to lgbtq litigants that you can view their rights in any lawsuits that involve them in a way that will protect those rights? >> senator, i think it's very important to respect the equal dignity of all individuals and if i were to be confirmed, i would work to uphold the equal protection of the laws and faithfully follow the precedence of the supreme court. >> thank you. >> gentle lady's full time has expired. we thank you for being with us today and for sitting through all the questioning and thank
mr. le blang to also be a member of the progress and civil liberties oversight board. and i thank you all for your willingness to serve, and for the excellent resumes that you brink to your desire tore public service. at this time, i want to ask each of you to stand and be sworn in. >> do you affirm that the testimony you are to give before the committee is the truth, the whole truth and nothing but the truth, so help you god? thank you. at this time, professor bamzai, we will begin with you for your brief opening and introduction. >> thank you, senator blackburn. ranking member feinstein and members of the committee. thank you for your consideration and your time. it's an honor to be nominated to be a member of the privacy and civil liberties oversight board. presearch the appropriate checks
an balances in our effort to protect the nation's security is one of central challenges of our time. the board plays a key role in helping to ensure that the antiterrorism efforts law enforcement and intelligence agencies are consistent with the protection of privacy and civil liberties. in the past, in my own career, i've had the opportunity to work on such issuez as an attorney in the department of justice and two administrations of different political parties. if confirmed as a member of the board, i hope to bring that background and expertise to bare on the challenging technical issues that the board confronts. i am committed to approaching the board's work in an independent, nonpartisan, and objective fashion. i'd like to thank my wife and two children who could not be here, and my father and my mother, my mother sits behind me. 28 years ago, my parents packed their belongings into suitcases, and moved up from another country to a motel not too far from here at the intersection of routes 236 and 50 in virginia.
quite literally, i would not be here today but for their courage, guidance and sacrifices. thanks again for considering my nomination. >> mr. lablanc, you're recognized. >> senator blackburn, ranking member feinstein and members of the committee, thank you for your consideration. it is an honor and privilege to be nominated to the privacy and civil liberties oversight board. i would not be here today without the support of my family, friends, teachers, mentors, and colleagues. it is not lost on me this morning that if confirmed, aditya would the the first people of color presidentially opponent pointed to the board. i am therefore grateful to many giants throughout our history that have knocked down barriers to make it possible for me to be here before all of you. while i cannot acknowledge all of those who made it possible for me to be here i would like to specially recognize a few people. first is senator harris, for
whom i had the honor of serving with, when she was the attorney general of the great state of california. everything i cherish about serving the people i learned from senator harris. she ensured that we approached our work as prosecutors with decency, compassion, and a sense of purpose. and every day that i wake up yearning to make our world a better place, i am reminded of and inspired by the spirit, dedication, and courage of senator harris. while thigh professional relationships are special, fa mealal bonds are divine. i would be remiss if i did not express my profound gratitude to my life parter and 4-year-old daughter and mother farrall and brother brandon and all my family watching from my tone in the southland ferris city noshs. if i would like to take a point of personal, i would like to acknowledge the new orleans saints who many believe were
wrongfully denied a super bowl appearance on sunday. i don't pretend to suggest that the civil oversight board has any injures dition over the national football league but if i learned anything from the nfc championship game this year, it is those people who are charged with enforcing the rules sometimes need the advice and oversight of independent observers of the privacy and civil liberties oversight board is just such an independent adviser and observer. the board is charged with balancing the government's efforts to protect terrorism, with the need to protect privacy and civil liberties. as we all know, these are dangerous times. the threats posed to america by its enemies, both foreign and domestic, are very real, and they are very serious. at the same time, however, the failure to consider the implications of our security policies on privacy and civil lints may itself threaten our nation's security. oversight and advice, reflect the wise judgment of congress
how to best balance security and privacy in the modern world. if i'm fortunate enough to be confirmed as a member i will bring an independent and open mind to the board. i will seek the views of all stakeholders. i will work tirelessly to ensure that my work conducts rigorous and careful consideration of all work available to me and i pledge that i will embody the bipartisan spirit. as this committee knows, civil, privacy and civil liberties are human issues not american ones. thank you for your time today. >> thank you. professor bamzai, i want to start with you, and discuss china. and some of the concerns that we have with china as they have really sought to disadvantage american companies. they have stolen technology. there is a lot of piracy that we deal with. i've got a lot of entertainers,
and innovaters and nashville that are dealing with them regularly. and last month, the justice department really unleashed some indictments on chinese telecom maker huawei who some of us have followed some of their actions and missteps for years, and went after them for stealing some of the trade secrets from t-mobile. right now, we are demanding extradition of a huawei executive to stand trial. president trump is encouraging other countries to block huawei from supplying some of the 5g equipment that is coming into the marketplace. and he's doing this because of a security risk. so what do these criminal indictments forshadow about the threats chinese tech and telecom companies pose to american security? >> senator blackburn, thank you
for the question. so i'm wear of the episodes that you've narrated just over the last few moments from the news and other sources of that nature. of course, the government itself has more information on these types of issues, and if i were lucky enough to be confirmed to the board, along with my fellow board members, i would look to see how the privacy and civil libtsz oversight board could bring its expertise to bear on the types of issues where we would be most useful to both the intelligence community, this chamber, the congress generally and the american public and i would be happy to take those types of considerations, of this issue, into account during my service on the board. >> excellent. okay. mr. leblanc, the big tech and their privacy violations compound every single day. there is a new story nearly
every day. last week, apple temporarily banned facebook and google from distributing apps that violated apple's privacy guideline, facebook apps targeted children as young as 13, luring them through instagram and snapchat ads, offering $20 to have access to their iphone data. the apple ad, facebook attracted users app history, private message, location data, and as a mom and a grandmother, i tell you what. some of these privacy violations to me are so offensive. and i do see them as a threat to our children. and their security. but let me ask you this. you've got a precious daughter who is here with you today, and what other precautions should be in place to protect consumers both young and old from falling victim to some of these privacy
violations? >> thank you very much for that question, senator. i am very well involved in work in the house when you were working on issues around privacy, and emerging technologies, and social media. in my view, one of the biggest challenges that we face in the united states right now is that we don't have baseline federal privacy legislation. it does appear as if there is a desire right now across industry, across consumer groups, across federal and state governments, as well as across party lines, for some kine of protections to be put in place as a matter of law. if in my view, for my daughter's sake, for the sake of the future, i think that having some common baseline federal privacy legislation would be helpful there. i am mindful, however, that the jurisdiction of the privacy and civil liberties oversight board is limited in the role that we
have with respect to protecting the privacy of the people. i will work with my fellow board members to ensure that we can take every step within our power to maintain the balance between protecting security and also ensuring the privacy and civil liberties of the people. >> would you take the same approach to data security? because data breaches, since 2013, have been rampant, and have affected millions of americans. you look at just last year, when you had dunkin' donuts and under armour and marriott hotels, and information that was out there, and the need for some data, do you back the need for data security legislation and breach notification pre-emption? >> it is a very good question. i will start by saying it is a bit outside the jurisdiction of the privacy and civil liberties oversite board. i am pleased to say that 50
states have data breach moat fiction laws. the question of whether there should be a federal one is one that is left to the wise judgment of congress at this point to decide on that. but there is no doubt that the number of breaches have gone up over the last few years. the breaches themselves are getting bigger. and at the end of the day, a large number of these seem to be resulting from foreign nation states that are attacking american companies and american individuals. i think it is important, and would be good for us, as a society, to begin to examine what protections we can also help put in place to protect american businesses, and individuals, from foreign nation states, engaging in cyber attacks on them. >> thank you. >> senator feinstein? >> thanks very much, madam chairman. welcome, gentlemen. i'm going to ask one question, three provisions of the foreign intelligence surveillance act, the lone wolf provision, roving wire taps, and certain
expansions of what's called the business records provisions are scheduled to sunset on december 15 of 2019. i've sat and been chairman and vice chairman of the senate intelligence committee. these are important provisions. the board you're going on, which we call the pclub, has often been very helpful in providing advice to the committee. have you taken a look at these three issues? we are expected, the congress is, to consider an extension of some or all of these three provisions next year. if you have thoughts, would you express them? if you don't, would you like into that? >> senator feinstein -- >> go ahead. >> it is a very important issue and i think i'm very familiar with this set of considerations from the usa freedom act that was enacted in 2015.
which is due now to sunset in 2019. and as you well know, from your service on the intelligence committee, the propriety, or even the legality of programs of this nature depend very much on the facts and circumstances, so if i were lucky enough to be confirmed, what i would want to do immediately is to provide some sort of product to the members of this body so that they could, it would hopefully inform them in the debates that are to come about the reauthorization of that bill, along with of course, an understanding that it would be my board members and i together, making those kinds of decisions. but i completely agree you with, these are very important debates. >> thank you. mleblanc? >> thank you for the question senator fine sine, like aditya i'm aware of these provisions and i am aware the usa freedom act will sunset in december of this year. i don't right now have the
benefit of classified information in order to evaluate whether or not these programs have been successful or not. i do pledge that if confirmed to the board, i will keep you fully and currently informed and i do hope that along with my other board members, we would examine these issues so that we can be available to congress as you consider this very important decision later this year. >> thank you very much. that does it for me. madam, chairman. thank you, both for your willingness to serve. it's appreciated. thank you. >> and there being no additional members who are in the room for questions, we will remind all senators that the record will remain open until 5:00 on february 6 for additional questions. and we ask for your prompt response to those questions. at this time, the hearing stands adjourned.
magnificent, says don ritchie. senate historian emeritus. and senate historian richard baker says mesmerizing photographs establish this book as the ultimate insiders tour. to order your high quality paper back copy of the senate, for just $18.95, plus shipping, visit c-span.org/senatebook. president trump declared a national emergency today. and plans to find roughly $8 billion for a southern u.s. border barrier. he says he will use the $1.4 billion approved by congress last night, and through executive action, will seek the additional funding from military construction projects, counter-drug efforts and from the treasury department forfeiture program. you can watch the president's remarks in their entirety online at c-span.org. the hill reports the justice department has warned the white house that the national emergency declaration will likely be
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