Transcripts For FOXNEWSW Americas Newsroom With Bill Hemmer And Sandra Smith 20180906

Part i work for the president , and likeminded colleagues and i have vowed to to thwart parts of his agenda and his worst inclinations. People are calling the author gutless. When you tell me about some anonymous source within the administration, probably who is failing and probably here for all the wrong reasons and the New York Times is failing. The feeling New York Times has an anonymous editorial. Can you believe it . Anonymous. Meaning, gutless. A gutless editorial. We are doing a great job. The poll numbers are through the roof. The poll numbers are great. Sandra ellison barbers life from the white house. Any idea who is behind this article . A lot of speculation, but no official word just yet. The New York Times identifies the author as a senior official in the trumpet administration. There has been a lot of speculation, particularly online, on twitter, places like that. People hopping on specific words to try and identify who authored this oped. The chief of staff seemed to address some of that speculation, tweeting this morning the Vice President put it his name on his beds. They should be ashamed. Our office is above such acts. He is in india, but hes weighing in on this as well. I find the medias efforts to undermine this in an disturbing. He said gosh, he didnt answer the question. Its not mine. The president is questioning whether or not the source exists, and if they do, the the times must for National Security purposes turn him or her over to the government. On capitol hill, lawmakers on the left and right angry with the president in part. They want to know who wrote this, but for different reasons. They are saving this country from the president. They should just step up. Put their names out there. This man is a coward. If its a man, or a woman, or if it really is someone, i agree with the president. I think its a real problem, they should come forward and say who this person is. Remember, a Senior Administration official is not necessarily someone who works at the white house every day. They are a noble federal agencies all across washington, d. C. , and political appointees all throughout. Sandra what if some of the specific claims in this oped . A specific one is that he lacks morals. Theyre somewhat of a resistance among many in facials and this administration who, in their words, our working dylan diligently within. The unnamed author said that they and other likeminded individuals want this administration to succeed and think many of its policies have already made america safer and more prosperous. The successes have, despite, not because of, the president s leadership style, which is impetuous, adversarial, petty, and ineffective. Bill the Brett Kavanaugh confirmation hearing for the Supreme Court, it will begin on the hill about 26 minutes from now. Questioning starting off, smooth sailing yesterday before ending with a series of rather tense exchanges until late in the night. Here is all part of that went. Have you ever made unwanted requests for favors or committed any verbal or physical harassment . No. Have you ever gone into a settlement for any of this kind of contact . An interim question of using racial profiling. Have you ever suggested that, sir . I would like to see the email. But it sounds like i rejected the concept. But i would look at the email. It seems like your opal done mike up into the concept, clearly. Have you discussed anything with the law firm founded by the president s personal lawyer . Its a very specific question. I would like to know the person you are thinking of. I think you are thinking of someone and you dont want to tell us. Bill thats how it went late last night. Sorry, good day to you. 13 hours on my watch last night. I do believe in total, you opt up about 10 15 eastern time. Did they hit him on any specific issue . I dont think they landed a single solid punch. Not a single one. They tried, a lot, but this is an extraordinarily talented nominee. A gifted jurist and scholar in his own right, one who is destined to sit on the Supreme Court. I dont think they landed, squarely, a single punch. Bill Chuck Grassley this morning said he will get 54 votes. If thats the case, thats at least three democrats, correct . Thats right. I think he is right on that. I think we will get all the republicans, nothing certain until the vote happens. But i believe we will get all the republicans. And if we do, we are likely to get two, three, maybe four democrats. In any event, all we need is a simple majority and weve got this guy confirmed. Bill you heard the string of sound bites there. Sexual harassment question, racial profiling question from cory booker, the mueller matter from kemal harris. Is she something with the smaller matter . Or she fishing . The concern that i expressed last night was that, if hes going to be asked a question like that about somebody at a law firm i had not been familiar with this law firm previously. I am sure it is a fine law firm, i just wasnt familiar with it. When judge kavanaugh said im not sure who you are talking about there, she implied that maybe he was concealing something. He said look, i just need to know what group of lawyers were talking about. I looked up this firm, there are like 350 lawyers who work at that firm. They lawyers in 500 different cities that the United States. Its not really fair way to ask the question. If you wants to put a list of lawyers in front of him and ask if hes discussed anything with any of these people, thats okay. But dont imply that because he cant, with certainty, identify which conversation he has had with 1 out of 350 lawyers, thats kind of a problem. Bill the law firm was founded by mike castle wits, former attorney to the president. Weve heard that a lot in the past several months. Youre saying you have not . I am not familiar with the law firm. I practice law before i came to the senate. Im sure i have heard the name. Im just not familiar with the firm. Im not sure whether he is familiar. Maybe he is, there behaves in. The point is, when you talk to somebody who has that many attorneys, you got to know more. For all we know, he has got for us dominant close personal friends of that form firm withm he mightve had to pass a conversation about something to do with the investigation. I think its unfair to imply that because he cant rule out completely a possibility that he ever had any passing conversation about that with any of these 350 attorneys, i think thats unfair. Bill lets see if that goes anywhere. You think itll get confirmed, is that right . Yes. He gets confirmed. Bill on this New York Times article, who would write that piece as a Senior Administration official . I dont know. My sense is that its probably someone who is not quite as senior as they want you to believe. My sense is, also, that this is someone who probably should be willing to come forward and put his or her name on the line. I have some grave doubts about this persons real fidelity to this administration. I consider it odd, if they really are a seniorlevel of the administration. They have an odd way of showing their loyalty and commitment to the cause of the administration. If things are as bad as this person suggests, perhaps this person should leave. I think its disingenuous for that person to describe how horrible things are and then stay in there with the express intent of trying to undo what the administration is doing. I find that puzzling. Bill center, thank you for your times. The hearing begins again at about 20 minutes. Thank you for coming here today. 9 30 a. M. , 10 15 00 p. M. Thats a long day at work. [laughs] sandra thats a long day. Day three of those hearings. Franz continues, though, for anonymous. He makes good points, maybe they are not as senior as they might think they are. Bill some people could argue there are dozens of them. Others argue there are hundreds. Sandra more coming up. Meanwhile, fox news alert. Reit done mike north korea reaffirming its commitment to denuclearization. Kim jong un is committing to piece on the Korean Peninsula once again. President trump tweeting this morning, north korea proclaims unwavering faith in President Trump. Thank you to chairman kim, we will get it tuned together. Secretary of state mike pompeo says kim still has a lot of work to do. We will continue to work with them to deliver for the world, against the u. S. Security Council Resolutions for chairman kim to deliver on the commitment that he made to President Trump. Sandra greggs live in london. Greg, what more do we know about the meeting in pyongyang . High, sandra. Yes, positive words again coming from north korea. Remember, it is action that the u. S. Is waiting for from pyongyang. Kim jong un made that new commitment to denuclearization at a meeting in pyongyang on wednesday involving south korean officials. They are there to settle on a date for the next summit involving kim and the south Korean South Korean president moon. That date is now set at september 18th20th, they say they will be working toward practical measures to make dumb i get rid of those nukes. Most intriguing was the timeline, the first time we have heard that from kim jong, offering it regarding denuclearization. He says he wants to get the job done by the end of the first term of President Trump. He also said he had warm words for President Trump, that timeline is pretty ambitious. The devil certainly in the details prayed what he also said is, before any of that happens, he wants a declaration of the end of the korean war. That something the u. S. Has been holding back on. He also called stubborn the demand that the nuclears agent happens. Thats why secretary of state pompeo said theres a lot of note done mike work to get done. Its a 70th anniversary of what they call the foundation of north korea on sunday. They will be a big military parade, a lot of huffing and puffing, back back to you. Sandra thank you. Bill a number of other big stories this morning including President Trump talking tough on the signature issue for him of Border Security in the southwes southwest. We have to protect our borders. If we dont protect our borders, our countrys not going to be a country. So if its about Border Security, im willing to do what has to be done. Bill what is he threatening to do against Congress Comes up with the money for that longpromise border wall . Well talk to martha mcsally, she wants to be a senator. She is our guest coming up life. Sandra social media executives on the hot seat and capitol hill, sending off allegations of anticonservative bias. Now, the Justice Department is reaching out to the state attorneys general. Ken paxton will join us about this joint effort to fight bias on mine. Bill plus, 30,000 feet over the ocean, forcing a quarantine at one of the nations biggest airports. Guess who was on board that flight . Basically, it was chaos right when we landed. When we started looking out the windows, we were saying this is much bigger than the pilot made out to be. This is really serious. Lets say it in a really low voice. Carl . Lowest price, guaranteed. Just stick with badda book. Badda boom. Book now at choicehotels. Com with a range of suvs perfect for any adventure, you can be in your element, in any element. Experience amazing at your lexus dealer. You might or joints. Hing for your heart. But do you take something for your brain. With an ingredient originally discovered in jellyfish, prevagen has been shown in Clinical Trials to improve shortterm memory. Prevagen. Healthier brain. Better life. If it happens, it happens. If its about Border Security, im willing to do anything. We have to protect our borders. If we dont protect our borders, our country is not going to be a country. So, if its abouts Border Security, im willing to do what has to be done. Bill fox news alert, president speaking to the white house yesterday afternoon calling on congress yet again to act. He said hes going to do whatever it takes to secure the border, even if that means a Government Shutdown. Lawmakers have until the end of the month to pass spending bills to keep the government working. Arizona congresswoman martha mcsally, fresh off a primary victory in her home state, welcome back. What you thing about this threat of a shutdown . I represent a southern border district, 80 miles of the border. 5thgeneration ranchers that have been dealing with cartel activity, trafficking through the ranches. Border security is a Public Safety and National Security issue. President trump was selected very much in part for his strong stance on securing our porta. This is really important in arizona, and its frustrating to see that the democrats are once again playing politics with the security of our communities and trying to hold things up. The good news is, we are going to get nine appropriations built through the senate, which is a miracle. We need to continue this fight to make sure we secure the border from the wall, fund our board agents and everything they need to keep our communities safe. Bill youve got majorities in the house and senate. Mitch mcconnell with brett last night, saying no to Government Shutdown and insisting they will not take this issue up until after november 6th. Watch. The nine bills we going to put it is just before the end of september, which is the end of the fiscal year, deal with other substance. We are still in favor of the wall, we still want to get funding for the wall, but we have the best time for the discussion after the election. I would that be the best time to have this . I cant speak to him. For my point of view come every day that goes by i was just down at the children ranch where there are four barbed wire strands along the border, miles along the ranch. With that cartel is trafficking through. Every day this is an urgent issue for me as i represent my district. I will be revisiting our state next year. We need to continue to put pressure on these democrats that they shouldnt be holding us up. We are not at the end of the fiscal year yet, and im not stopping the site myself. Bill the sense would be that youve got the votes now. I would think for those who voted for we need 60 votes in the senate, as you know. Bill but based on this issue, give it the best push possible. You are saying thats not possible now . I cant speak for them, i can only speak for myself. I prefer to vote on Border Security, funding, bring it to the floor, send it to the centage. Push the democrats to include my opponent, who is weak on these issues on open border policies and supporting century cities. Make them take a vote against Border Security. Thats what i would prefer. Im going to keep talking to the leadership here and fight for that, because this isnt just a political issue. Its a Public Safety issue for my community that i represent. Bill the senator from your home state will take the vacated seat of the late senator john mccain. The question about repeal and replace obamacare is he the vote that republicans need . Apparently, this will not be taken up, either. Let me just say i worked for jon kyl when i was a major in the air force as a legislative fellow. It was an absolute high honor, and this is a brilliant pick. Im so glad hes willing to serve our state and our country again. I kind of blame him for me doing this, because he was such a good example as a conservative leader getting things done. We do have the opportunity to move forward, to move away from the disastrous obamacare that is raising premiums, and prices, out of touch for a lot of people that i represent. Whether that fits on the counter in the short term or after the elections, im not sure. But weve got to get this done, because its hurting people every single day. Bill but you blame him . [laughs] blame who . Oh, yeah. In a positive way. Because he was a good example. An amazing workhorse, a man of character. Again, im grateful that hes willing to serve our state and country. Bill i hope you come back. Thank you. Sandra there is much more head on the Government Shutdown over Border Security. Will congress ask act soon . Steve scalise is todays headliner, he will join us at 10 30 this morning, thats eastern time. Bill looking for to that. Also, who is anonymous customer thats the question this hour as the white house demands the New York Times reveal who is behind this blistering oped from an alleged unnamed official. Should the times as had ever pd to begin with . We will talk about that, coming up next. Is there somebody in the white house he was unhappy . Somebody who is such a remarkable genius that they are offended because trump doesnt use the right language . Who knows . My point would be deeper. This stuff is all junk. Ill take that. [cheers] 30 grams of protein and 1 gram of sugar. New ensure max protein. In two great flavors. Dozens of people 50 and over, who like me, are actual customers of the aarp auto and Home Insurance program from the hartford and over that time i noticed a common theme. People appreciate the value they get with the hartford. We originally signed up for automobile and homeowners together. The hartford was the only one that was able to save us money. Thats a good feeling, huh . Yeah, its good to have everything bundled together. [announcer] to get your no obligation quote, call the hartford at the number on your screen or go online it was a hailstorm that came through and it had some damage to the automobile, as well as the home but the hartford stepped in there and took care of it. For an Insurance Company to go above and beyond, i would say the hartfords been exceptional from the get go. [announcer] join the millions of customers 50 and over who trust the hartford. [announcer] call the hartford at the number on your screen to get a no obligation quote, or go online billions of problems. Morning breath . Garlic breath . Stinky breath . Theres a therabreath for you. Therabreath fresh breath oral rinse instantly fights all types of bad breath and works for 24 hours. So you can. Breathe easy. Theres therabreath at walmart. We have somebody in what i call the failing New York Times, talking about hes part of the resistance within the Trump Administration. This is what we have to deal with. You people deal with it as well as i do, but its really a disgrace. Sandra President Trump slamming the New York Times after the paper published an anonymous article from an alleged senior white house official who claims there is a silent resistance within the Trump Administration. Howard kurtz is a Fox News Media analyst from a host of media buzz, and hes all over this. How we, we are left wondering, who is anonymous . Is anonymous exists . That hunter will sorely continue. Should the New York Times have published this piece in the first place . First come anonymous, a nod to Bob Woodwards deep state throat committed and active political disloyalty. There also the questions, are they how senior is this person . A deputy secretary of some Boat Department . It said an administration official. This person was trying to stop donald trump from carrying ahead these decisions, why brag about it knowing it will infuriate the president and hurt that effort . But, the times believe this is a senior incredible person sending a stress signal from inside the palace, that is clearly newsworthy. Sandra the New York Times did put a disclaimer on this when they published it. This is what it said. The times has taken a step to a publishing anonymous op ed sa. That identity is known to us, and whose job would be jeopardized by its disclosure. We believe publishing this essay anonymously is the only way to deliver an important perspective to our readers. They are standing behind this. They have also issued a defense of this oped, especially since the president has been reacting saying we are incredibly project published this piece, which add significant value to the publics understanding of what is going on in the Trump Administration from someone who is in a position to know. The president and his team is demanding that they expose who the anonymous is. Do you see it going that way . Will we eventually learn the name of this person . We wont limit from the New York Times. Of course, the Editorial Board is proud of publishing this because the New York Times Editorial Board despises President Trump. This was a gift from the gods. As far as the president saying he actually said at one point, the times editors should turn over this person on National Security grounds. What grounds . There is no classified thing here. Its the persons opinion. I agree with the president that this person is gutless. If he doesnt agree with whats going on, he should quit, write a book, speak out, or do whatever. I think eventually with all of the journalistic firepower now focused on this, we might eventually figure out who it is. Sandra since then, a couple members of the president s team, the highest of his Team Including Vice President mike pence have reacted. Saying it was not them. Mike pompeo as well, but here is pentzs team reaction. The Vice President puts his name on his oped, the new york the the New York Times should be ashamed. They are above such amateur acts. As we know, know, mike pompeo, he has also denied it was him. Everybody saying im its nt me. The reason its beyond this guessing game that they love, they kind of further the narrative of what bob would wos book. Painting a picture of somebody frantically trying to restrain the president from doing things they believe are not in the best interest of the country. Thereve been a lot of stories about that, in my book media madness i talked to a lot of people who tried to slow walk or deter the president from doing things that they consider to be erratic or reckless. We have seen all that. But now we have dashed look at, the media have been tremendously unfair to this president. Overwhelmingly negative for almost two years. Journalists can say look, what we have been telling you all along, look, there are people who work in the white house, who work in the administration. They spoke to bob or grade, they believe in our assessment. That makes them feel good. But for the president , who can they trust . Sandra that had continues. Kurtz, thank you. Bill moments from now, day three begins in the cavanagh hearing. Will the fire exchanges pick up where they left off late last night . We are live on the hill to pick up coverage in a moment to coming up here. Sandra plus, another hearing coming place. Anticonservative bias allegations, now the Justice Department is taking action. We will talk to ken paxton next. Plus, this. [auctioneering] bill the most unique technique to drown out a protester. [laughs] wait until you hear. Coming up. Sandra this coming into our newsroom, there is an active shooter situation being reported by the Cincinnati Police right now. What they have tweeted out is that there is an active shooter, an officer involved in a shooting incident come at fifth third bank. In the lobby and loading dock area. More decent details to follow, they say the police will be clog it to foot traffic. For the report say that the atf is on the scene, and the scene has been secured. We are only going off of reports there. Other than that, we have that tweet from Cincinnati Police. We will keep following this. Bill another alert, day three of the Brett Kavanaugh confirmation hearings about to get underway. It could be another grueling session. They went 13 hours yesterday. Democratic senators pressing him on everything from executive power to the mueller matter late last night. Shannon bream was there for all of it. She is back lives, shannon, good morning to you. What is your expectation as we begin the day today . Good morning, bill. We may find out a little bit more about a couple of mysteries that a number of the democrats laid out last night. Documents we havent seen, documents may be even nominee hasnt seen. Sometimes its a suggestion of something unknown or possibly nefarious that causes the chatter and the trouble. Today will see if they follow through with some of the things they hinted at last night. Yesterday was supposed to be about the nominee, his first time to talk about things substantively. It was really come in many cases, about the man who nominated him, President Trump. Democratic senator blumenthal, a former prosecutor, said yesterday that there will be an asterisk by it because of the men who nominated Brett Kavanaugh. He asked him to commit to something very specific. Heres what he asked the nominee. I would like your commitment that you will recuse yourself if there is an issue involving his criminal or civil liability coming before the United States Supreme Court. One key facet of the independence of the judiciary, as i have studied the history of nominees, is not to make commitments on particular cases. The committees top democrat Dianne Feinstein tried a similar approach. Here is her backandforth with judge kavanaugh. Can a sitting president be required to respond to a subpoena . Going with the Justice Ginsburg principle, which is not the justiceginsberga lone prince will come is everyones principle on court. Its a matter of the can then of judicial dependence, i cant give you an answer on that hypothetical question. For all the back and forth, we dont think there any democrats on this committee will vote for him. Will any of them vote for him when he gets to the full senate vote . We talk to this chairman, senator grassley, this morning. Heres wheat holds about the boat going down. If we dont produce at least 50 republican votes, theyre not going to have anyone of them vote for him. Thats how powerful he is in his caucus. More importantly, hes getting battered by the progressive and his political party. That they arent doing enough to kill this nomination. Right now is his hearing is Getting Started for the third day, right now, just a level below me, at senator grassleys office, protesters have taken over. They have crammed inside the office. They are from a number of different groups on the left, progressive groups who say theyre going to shut everything down until this hearing is shut down. Well get you video from that. Another busy day on the hill. Bill Chuck Grassley also said he expects 54 votes. Hes doing some tabulation. Right now thinking he can make a few democrats vote on that. Republicans that hes the most prepared candidate they have ever seen before. Democrats were hammering him last night on sexual harassment, questions about racial profiling and the profiling. Sandra we want to bring in ken paxton. He joins us now as we look on capitol hill. Can come if i could get you to weigh in, day three now of these hearings following some pretty tense and mike exchanges yesterday. Nothing surprising, obviously, the democrats are going to try to do anything to her home office again. This guys wellprepared. He has an incredible background, a great judicial background. Also, an amazing education. Very likely hes going to continue to shine. Sandra what do you make of what you have seen so far as far as some of the heated exchanges that we have seen as we enter into this thursday morning as we look on at judge kavanaugh in this hearing room . I guess im not surprised, given the importance of this. Im not surprised theres a lot of emotion and opinions on this. Thats fine, thats why we have hearings. In the end, i hope that judge kavanaugh that the decisions are based on his real qualifications, not some political ideology. Sandra while i have got you, ken, if i could ask you about the Justice Department saying it will investigate the social media giants like facebook and twitter and whether or not they are intentionally censoring conservatives. This has been a big question for a while now. Do you believe that that is the case . I am really pleased that the Justice Department is looking at this. We have started looking at it, i have directed my office to look at it, because we have incidences in my state we had a church he was advertising for easter services, and some have facebook blocked them. We had to intervene and undo that. We were able to come and there was never a good exultation. They talk about these algorithms that we dont understand. As we go through the process, we have to make sure people are being treated fairly. Sandra wises so concerning to you, ken . These are huge platforms. They affect a lot of things. They affect how people think about issues, they affect elections, and its really important that people have a fair shot at getting their views out and that some big company does not censoring speech. Speech to the catch here is that conservatives, you would expect when talking about corporations or big businesses, that they would be protective of further government regulation of companies and business. But, here, we are talking about conservatives questioning whether or not give the government should intervene with these companies because of these bias bias. I think youre right. Republicans generally dont like a lot of regulation. They dont like unnecessary regulation. At the same time, in my state, we still regulate sandra okay. I think we lost the Texas Attorney general. We think and for his time. He started by weighing a nonthese hearings, and hes been looking on on some of the intense exchanges on the last couple of days. Bill local commercials are not supposed interruptus. Sandra [laughs] we apologize to the attorney general for that. Bill Chuck Grassley, he said we are not going to dip into begin a cover today of Brett Kavanaughs hearing as we continue. Well see where we left off last night as we start now. 9 40 00 a. M. On the hill. To reduce this, but i think we have the department of justice cooperating with that. Before this day is over, members will have the documents that they need to ask the questions that they wanted to ask. Before i ask my questions and one senator wants to make a 30second comment i am willing to turn to that, but let me say, each of our 21 senators on the committee get to ask questions for 20 minute rounds. Every couple of hours we will take a break, and that would include a lunch break. Judge, if you need a break at any time, have your staff informed my staff. As a Standard Practice for every judicial nominee, the fbi conducts a Background Investigation and provides to the senate a background report. Moreover, like with prior nominees including justices kagan and gore such, there are a number of president ial records that are restricted by federal law for public release because they contain sensitive information. Including highly confidential advice delivered to the president , and personally identifying information such as full names, date of birth, and Social Security numbers. So, at the end of the questions today, we will move as we have before into a closed session with the nominee where we we will review the fairport and any confidential records that any member would like to discuss. This is Standard Practice, we do it for all Supreme Court nominees. Every member is invited to participate. Now, i would like to call on senator ronald. Thank you very much. I would like to set the rord straight on a manner that was brought up late last night with regard to me and my questioning of judge kavanaugh and his relationship to judge krasinski and whether i would ask them the same questions. I would like to quote from my response to the Washington Times on september 4th, 2018. That quote is and this is for me if President Trump would be so enlightened as to withdraw nomination and nominate judge watford to the Supreme Court, i would certainly ask judge watford about his relationship with judge krasinski. Thank you very much, mr. Chairman. Senator booker, before you speak, i hope that you are not going to say that we have not gotten the documents you want and all that sort of thing. My staff was here until three trying to accommodate everybody who asked for documents. Would you proceed please . I appreciate that, sir. Sir, the very section of the process that you read points out the absurdity of the process. Thats what is deeply frustrating to me, and deeply disappointing. The process you read, you invite Committee Members to submit a list of document control number specifically identifying the confidential documents or documents publicly released with reductions. That the members wish to reuse in the hearing. So long as is a reasonable request, no guarantee that the we will be able to use them. But to submit the ones we ask questions about, you will go back to President Trump, go back to president bush for review. Now, i see that plainly. If i could just finish my point, we have a number of those documents released to us the night before. To think that we could somehow ask you about the documents, revealed to you what questions we wanted to ask, and its not even your determination. It goes back to bill burke, who is then making a determination about documents paid on the specific document that i brought up as a great illustration of the absurdity of the process. I brought up a document entitled racial profiling. I asked the candidate about his views about this issue. Its controversial issue. That document actually does reveal his thinking about that issue at the time. The fact that there is nothing in that document that is personal information, theres nothing National Securityrelated, the fact that it was labeled as confidential exposes the dis process is a bit of a sham. This is never been done. We have holding back not only documents labeling confidential, but not even giving us the timeo review those documents. In addition to that, this is just the tip of the iceberg of all of the documents that will continue to be released, i assume come up until the point that we have a vote on the senate floor and beyond that. Im sure you can understand, sir, how it puts all of us in a very difficult situation. Its not you, its somebody you have to go back to a person named bill burke to decide if some document, an associate and colleague of the nominee, to figure out which documents are going to be released. By the way, if all these documents were things, as you characterize them, personal information if these were things that were delicate information. If i read these, the nights we got the night before the hearing including the ones before the hearing, and actually flabbergasted that so many of these things are not controversial whatsoever. They bring up pertinent issues that we should have the time to digest and ask the candidate about. Mr. Chairman . I will call you, but i think i ought to respond to the senator. I would like to respond at least on two points. One, the word sham. Senator lahey, chairman of the committee, accepted documents confidential during the gorsuch nomination. We accepted community documents Committee Confidential at that particular time. Senator feinstein asked for 19 documents as we are getting for documents for you now in the same way. You read from my letter, and you called it a sham. Was it a sham when we did it for gorsuch . Was it a sham when senator lahey did it . The reason we did it is so that we could get documents so you could review them almost from, i think, august the fifth. Maybe it was august the tenth. So you could start on that very early. Dont forget, documents come Committee Confidential and then dont forget, on a regular rolling basis, they are not Committee Confidential, and then put on our website so that the 300 Million People can view them if they want to. Then the second point about the lawyer for president bush, all of our conversations last night or with the department of justice. I hope you understand that these people in the department of justice are people that are there for years under both republican and democrat administrations. They are supposed to be nonpolitical. I hope they are nonpolitical. They are civil servants. We should respect their judgment as they tried to take care of the privacy of people as they try to read directly into the night Social Security numbers, phone numbers, cell numbers, and all the sorts of things. Then we also have senator whitehouse. But i want to go and let him comment. Senator grassley, may i be recognized . Yes. Mr. Chairman, thank you. I was disappointed to see last night that some of our colleagues are unwilling or unable to conduct themselves in this hearing with regular order and accordance with the rules of the committee and the rules of this centage. I know last night some of our colleagues even tried to cross examine the nominee about documents, but refused to let him even read them. Members of the senate and members of congress generally are privy to sensitive information, including classified information on occasion. We are expected to protect that information for all of the obvious reasons. It is inappropriate to raise these and an open session before the committee. I think our colleagues understand that, but nevertheless decided to go ahead anyway. I just think its important that we remind one another that the clear rules about the discussiol material, and there can be consequences to the violation of those rules. This idea that somehow president bush, when his lawyer and the president decide that information represents legal advice or other protected information that was given to the president during the time he was president of the United States, and that somehow he is unable to make a claim of privilege, or that once the claim is made in consultation with this private lawyer that it would be not respected by the senate thats outrageous. I thought we were doing pretty well yesterday. Things went off the rails, it looks like, last night. I hope we will return to be hearing process that respects rules and treats each other, and particularly the nominee, with the civility that he and this process is entitled to. I would encourage our colleagues to avoid the temptation to either violate the senate rules, or to treat the witness unfairly by crossexamining him a bout a document and refusing to show it to him. And, violating the confidentiality of some of these documents as requested by president bush in consultation with his private lawyer. Sir, may i respond, sir . No senate rule accounts for bill burkes partisan review of the document. No senate rule and no history of the senate accounts for what is going on right now. That was following this partisan operative, following his involvement in this process, that i think, in my opinion, undermines the process. The idea that we could somehow go through your lengthy process where many of these documents are dumped at us on the last minute senator cornyn made a good point. I knowingly violated the rules that will put forth, and im tod that the Committee Confidential rules have no consequences. So, sir, i come from a long line, as all of us do as americans, understanding the consequences of civil disobedience. I am, right now, before your process is finished, i am going to release the email about racial profiling. I understand that the penalty comes with potential ousting from the senate. If senator cornyn believes that i have violated senate rules, i openly invite and accept the consequences of my team releasing that email right now. I am releasing it to expose that emails are being withheld from the public have nothing to do the National Security. Nothing to jeopardize the sanctity of those ideals that i hold dear. Instead, what i am releasing this document right now to show, sir, is that we have a process here for a person the highest office in the land, for a lifetime appointment. We are rushing through this before me and my colleagues cant even read and digest the information. And i can i ask you how long youre going to say the same thing three or four times . How long do you want im saying im knowingly violating the rules. How many times are going to tell us im saying right now that i am releasing Committee Confidential documents. I insist on an opportunity to respond. I did not mention his name, but he had mentioned my name. He is right. Running for president is no excuse for violating the rules of the senate or of the confidentiality of the documents that we are privy to. This is no different for them e senator deciding to release classified information that is deemed classified by the executive branch because you happen to disagree with the classification. Thats irresponsible and outrageous. I hope the senator rule reconsider his decision, because no senator deserves to sit on this committee or server in the senate, in my view, if they decide to be a law under themselves and willingly flout the rules of the senate and the confidentiality and classification. That is irresponsible and conduct unbecoming of the senator. Just a minute. Ive got something i want to say. I think we ought to be thinking about this is the last, ive got three senators asking gender tender senator kennedy, senator whitehouse this is the last thing. Heres something youve got to think. Well be here until midnight if you want to be here, but i have been told that the Senate Minority leader or somebody in the democratic partys invoked a 2hour rule. If the 2hour rule is invoked, nobody on this committee, republican or democrat, will have an opportunity to do what they want to do today. Because this is the last day hes going to be here, so i hope you dont invoke the two hour rule. If you want to talk now before i start to ask my questions, i will do it. Senator whitehouse was the next one, then senator hannity. Kennedy. Im in a similar situation. Senator whitehouse. I think he asked before you did. The chairman, you recognize me for 30 seconds and i will take 30 seconds. Left silence imply consent, speaking for myself, i want to make it absolutely clear that i do not accept the process of this Committee Confidential routine that we went through. I do not accept its legitimacy. I do not accept its validity. Because i dont accept its legitimacy or validity, i dont accept that im under any obligation. I have not made a big fight about this. I have gone ahead with my questioning. Again, left silence imply consent. I think that rule is ineffectual as if we had unilaterally repealed the law of gravity. It simply isnt so. I havent agreed to this rule, i havent voted on this rule, this rule does not exist in our committee or senate rules. I will leave it at that. I am not willing to concede that there is any legitimacy to this entire Committee Confidential process in this hearing. Nothing sensitive, nothing personal, nothing classified, and nothing confidential has been released. Did you object to it when it was previously used under other Supreme Court nominees . It was developed then three bipartisan process. That is correct. We reach an agreement through unanimous consent. No, there was an agreement between the chairmans that does not exist this time. I have documents that are not personal, not classified, not confidential, not sensitive, that are nevertheless covered under this senator kennedy. I was in the chair last night when this issue came up. I made the call, and i wanted to explain why i made it. My colleague raised the point, i allowed senator booker to continue, sometimes patients ceases to be a virtue, but i didnt think of these hearings following the chairmans example that that was appropriate. Senator booker examined judge kavanaugh about the Racial Disparities in this country. I gave judge kavanaugh i think i was 6 minutes and 39 seconds to respond, uninterrupted. I was trying to be, and will continue, was trying to be fair to both sides following the example of air chairman. Thank you, mr. Chairman. There has been a lot of commentary over the last couple of days about howie are in uncharted and unprecedented territory here, that the process has broken down. Reflecting what is in there she didnt generally. Particularly in the last couple days with the publication of a new book and an oped. They indicate very serious chaos breaking down in other parts of government. Im hoping we can come together as a committee, and if there are any rules, do what we have done in the past, which is adopt them on a bipartisan basis. That has been the way that Committee Confidential designation its not classification, there is no classified documents here. Its a designation. Its an arbitrary and seemingly capricious designation designed to spare people embarrassment, possibly, but all of these documents belong to the people of the United States. They are covered by the president ial records act. Eventually, they will come out. So, shame on my colleagues if they conceal them now and deny us the benefit of questioning this nominee who comes before us for the last time today. He comes before us for the last time today. This is our last opportunity, up or down, whether he is confirmed or not, to question him. Like any by law, documents have to be assessed as the trial goes on. Is this witness to her questions. We cant give the chairman a list of what documents are relevant before we hear his answers and our colleagues questions. Not only from the standpoint of there being no basis for the rules, but also to deny the fairness and effectiveness of the process. That is the reason we are making this protest, and we are here under protest. That is the reason why i asked to adjourn, so we could consider fairly all of these documents. I appreciate that senator grassley has decided to release the documents that i would have use yesterday. He has released the documents that senator booker, amendable he would have released, even if not reclassified a redesignated. I want to reserve the right. I hereby reserve the right to release documents before any confirmation vote, so that my colleagues can see what the truth is. We are literally trying to get at the truth here. Between now and any vote on confirmation, there is the right, in my view, on the part of every member of this committee, to release documents that she or he believe are appropriate. To delegate this decision to an unappointed and unconfirmed, and largely unknown figure, bill burke, who used to work for the nominee, is the height of irresponsibility. Thank you. I want to start by pointing out that what this part of the discussion started last night. I was concerned, as with any witness in any courtroom or proceeding for this committee i want to make sure that when a witness is questioned about a particular document, the witness is access to that document. He has over the course of his career been involved in the creation, the authorship, the review, of not just hundreds of thousands, but many millions of documents in his lifetime. Its not fair to this witness or any other witness in any other proceeding, anywhere, do not give the witness a copy and allow him to respond to it while he is being questioned about it. That is why i offered to senator booker and senator booker and i had a helpful conversation with a very helpful Committee Staff last night. They have agreed come in the meantime, to release the same document that is now the subject of it. The process worked. It works, we do have the ability to make these things available, to make them public, so we can be fair to senator booker. We can be fair to the witness, to the nominee. I do want to point out, since the charge has been made that this process is somehow rigged, that its charge, that is unfair, that its arbitrary, that its capricious. I completely disagree. We are not dealing in a lawless environment here. Were dealing with the president ial records act. Weve got documents that are the subjects of privileges. Privileges that have to be asserted. Now, bill burke is the designee for that president ial administration. He has the prerogative of asserting privileges. Through an accommodation with the senate, with the Senate Judiciary committee to allow us to gain access to other documents to which we would never otherwise be able to have access, they have agreed to hand those over with the understanding that we have this Committee Confidential process, and that there are means by which we can clear documents like this one that we would otherwise not be able to clear. It worked here, it has been cleared, and i think we should move forward. Thank you. Mr. Chairman senator durbin, or senator feinstein. Whichever one wants to go first. I. D. For two senator feinstein. I will accept it. Thank you. It is my understanding that by agreement with private lawyer bill burke, the chairman has designated 190,000 pages of kavanaughs records Committee Confidential. By doing this, republicans argue members cant use these documents at the hearing or release them to the public. Unlike the intelligence committee, and i have been a member for about two decades, the Judiciary Committee doesnt have any standing rules on how or when documents are designated Committee Confidential. Previously, the Judiciary Committee has made material confidential only through bipartisan agreement. That has not been done in this case. So, this is without precedent. Republicans claim that chairman lahey accept the documents on a Committee Confidential basis during the kagan administration. Its my understanding that they were in process through the national are archives, not partisan lawyers. Republicans agree. 90 of elena kagans white house records were publicly available and could be used freely by any member. By contrast, the committee has only 7 of Brett Kavanaughs white house records. Only 4 of those are available to the public. No centage or Committee Rule grants the chairman unilateral to designate documents Committee Confidential. So, i have no idea how that stamp Committee Confidential got on these documents. I sent a letter on august 10th, 2018, objecting to the blanket designation of documents as Committee Confidential. I offered to work with the chair, he refused. Judiciary democrats sent to the chairman a letter on august 28th restating the objection to the chairs designation of the documents as Committee Confidential. In requesting public release. As i have looked as the documents that are Committee Confidential, they do not affect any of the usual standards that would deny Committee Confidentiality. Mr. Chairman, i think that is a problem. I think we are entitled to all records, and i think the public is entitled to all records. They are appropriate and do not put forward personal information or information that otherwise should not be disclosed. So, i do think we have a problem, and i think for the future we ought to settle that problem with some kind of a written agreement between the two sides, whether that is an agreement between the two sides of the entire committee, or between the chairman in the raking member. I think it doesnt matter much, but the fact is, we should agree on who determines something is Committee Confidential. What the criteria are for age, and the release of the public. And, particularly in the event of a Supreme Court hearing. Senator durbin. Thank you, mr. Chairman. Like my colleague senator whitehouse, i dont want my silence to be interpreted as a consent to the process that we have faced before this Senate Judiciary committee. It is unlike any process i have ever seen. This designation of Committee Confidential should be put in historic contest. There will be an opportunity for us later this afternoon to meet and confidential and secret private session to discuss this nominee. That is not unusual. It is done for virtually every nominee. Some of the meetings are literally a minute or two, we say theres nothing to talk about and we are leaving. But it has happened in the past, whenever we dealt with Committee Confidential it was something very specific and usually very personal to a nominee. It was done bipartisan agreement that we should protect assertions or comments that may not have any truth to them whatsoever. The committee should take them into consideration. That is a far cry from what we have faced with this nominee. I cannot understand and i said this on my opening statement, here the authority we have given to a man named bill burke, former assistant to the nominee. We have said to been mr. Mr. U will get to say. Which documents we can discuss open and publicly, and which ones we cannot. Who is this man . By what authority could he possibly be denying to the American People information about a man who is seeking a lifetime appointment to the highest court in the land . The National Archives is usually the starting point of this process. I put in the record yesterday a statement from the National Archives disavowing this whole process, saying this is not the way we have done this in the past. We usually initiate this. Please give us a few weeks to do this in an orderly way. But the decision was made by the white house and the administration not to go down that path. Not to take the same course we have on previous nominees. Instead, to allow it to this gentleman, bill burkitt, a private attorney, the authority to decide what the American People can see about the background of Brett Kavanaugh in other capacities. Who is bill burkett . All that i know of him is that he was once an assistant to the nominee. I am told that he is not only attorney for george w. Bush, but also for the white House Counsel mr. Mcgann, mr. Reince priebus, the former chief of staff, and steve bannon, a man who i couldnt characterize in a few words. But he is his personal attorney. In this situation, he is now the litmus test. He is the filter to decide what the American People will see about this nominee. That is why we bring this issue before you. Lest you think we are harping on a trifle, we are talking about whether the American People have the right to know. We now know that less than 10 of documents reflecting the public career of mr. Kavanagh have been made available to this committee. I just want to say to my colleagues, particularly my colleague in new jersey, i completely agree with you. I concur with what you are doing, and lets jump into this pit together. I hope my other colleagues will join me. So that there is good to be some retribution against the senator from new jersey, count me in. I want to be part of this process. I want to understand how bill burke, this private attorney, has the right to say as one of my colleagues mentioned this should be considered a classified document. A top secret document. A document that relates to the National Security of the United States. By what right . By what authority can mr. Burke possibly designate a document as Committee Confidential . He has no authority to do that. He only has authority because he has the consent and the cooperation of the republican majority on this committee. That is the only thing that brings us to this moment. Let me just say in closing, one last thing. I am sorry that one of my colleagues is characterizing all of us on the democratic side on the first of this hearing as contemptuous. I have never heard that said before in a full committee meeting. But it has been said. Im particularly sorry that he singled out one of our colleagues on this side, and accused him of conduct unbecoming of the United States senators. I think statements like that are personal, they are disparaging, the motive of a collie, something we should do our very best to avoid in the United States senate if youre ever going to restore the integrity of this body. May make a brief point . Mr. Chairman, im looking at a wall street journal article back during the elena kagan nomination. It says document production from elena kagans years in the Clinton White House Counsels office was supervised by Bruce Lindsay, whose white house tenure overlapped with miss kiggins. Kagans. Under the president ial records act. President bush, by choosing mr. Burke, is doing exactly what president clinton did in choosing Bruce Lindsay for that same purpose. Mr. Chairman . I think my colleagues. Call me in, i, too referred to a Committee Confidential document deemed such by one bill burke. We all know who he is at this point. How did the nominee asked me for a copy of that socalled Committee Confidential document, i would have been happy to release it to him or give it to him. I am releasing that document to the press, and i would defy anyone reading this document to be able to conclude that this should be deemed confidential in any way, shape, or form. Thank you. Mr. Chairman i know youve mentioned a number of times that i went through the process. I do want to point out, however, that i also was on numerous letters asking for all of these documents to be released. That my colleagues have repeatedly asked for documents to be released. I go back to what happened on the first morning of this hearing, and that is that we pointed out that when there are 42,000 documents that are dumped on us in one night, there is apsley no way people are going to be able to adequately review them. As they review them, theyre going to find documents that they want to be made public, that they want to ask the nominee about. The whole point of this is because this hearing was ramrod through, and we werent given may be the month it would take to look at the documents that we are where we are. My remedy for this, in addition to making it clear that i join my colleagues, that we support what senator booker is doing here, is that you must somehow expedite the review of every single document and we must have some kind of rules in place to get them out. I understand you want to take out Social Security numbers and things like that. Thats normal. But we simply cannot hide these documents from the american public. It is the highest court of the land. I was looking back everyone was citing people, the founders of this country, and i found a quote that really worked here from madison. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy. Thats what we are talking about here. By ramrodimg this for political reasons, access to the documents are denying the public to right to see whats out there. Its not how we do things in my state, and is not how we have done things in this committee. Mr. Chairman . Im going to call on senator lee, and then you. Before that, a couple things. She just reminded me, and her comments. A number one, to take care of all the people that didnt act promptly like you did, senator klobuchar. Thats why we extended it and gave the courtesy of doing whatever anybody else wants now. Can either be brought up . Those that youve got can be brought up right now to him, and the things that arent clear that you want to bring up with the judge, you can bring up in the closed session today. Everything is, when you talk about getting all the documents, i dont know who might work for members of this committee sometimes. They want to be on the Supreme Court. For instance, we didnt ask for all the documents that kagan had in emails for whatever communication she wouldve had when she worked with senator kennedy. Would you want to be exposed to that sort of thing . If you want everything to be made public, or all the emails that you have, whether i think they are protected for 50 years for the United States senators. So you talk about the publics right to know, you want to give up your emails . Right now . Make them public . I dont think you do senator lee. First of all, i want to say im deeply sympathetic to the frustration people feel when they dont have access to documents that you dont make me want. I have faced this on a number of occasions. There been times where are called to vote on legislation literally at the midnight hour, sometimes much later than that, that we havent seen until moments before it was voted on. They have been other times, and i kid you not, when i have been asked to post dont act on my n a piece of legislation that has an anodic sonnet that i cant see because its classified, and in a way that i dont have acces to because of his Committee Assignments that i do not have. Its incredible frustrating. In those circumstances, look for a demon. There are demons and the circumstances, they are too numerous to name here. In this circumstance, there is a demon. But that demon is the law of our own creation. Its called the president ial records act. That is the demon that you are after, here. That is the only reason we have got this issue. The custodian of those documents holds and exercises a privilege on behalf of the Bush Administration. These are documents we would otherwise not have access to because they are privileged. For pursuing to an agreement wih the senate, the custodian of those records has agreed notwithstanding the privilege nature of those documents hand them over to us with an understanding that when there is a need that arises with respect to one or more of those documents to make them public, we can come as a committee, go through a process to do that. That is exactly what has happened. It is what has worked, and what has worked here today. If youre frustrated with the process, lets review the president ial records act. We are just doing what the law allows us here to do. These documents are not ours. They belong to someone else. It is not written to the constitution, on stone tablets anywhere that we are entitled to items that dont belong to us. The significance that William Howard taft and releases president ial papers. Robert jackson, having served as the attorney general, didnt release all the papers he had as attorney general. Why . Well, i assume it had a lot to do with the fact that they didnt belong to us as a senate. If you want to be able to have a process, not just with this administration but in every president ial administration, democratic, republican, or of any other stripe in the future, we need to respect the process and respects the privilege that is accordance to documents that do not belong to us. Thats all we are asking. The process is working. Lets move forward. Mr. Chairman . On behalf of this side, i would like to say a couple things. There is no process for the Committee Confidential. It used to be that both sides had to concur, the chair and the Ranking Member. But now, this is just simply not the case. To some extent, with this kind of thing, Committee Confidential becomes a kind of a crock. It shouldnt. I think we need to sit down, i think we need to have a rule on how Committee Confidential is determined, on what it means, and who makes that decision. For all i know, some republican staffer could have made the decision. I just dont know. Documents appear, our site had nothing whatsoever to do with the designation of Committee Confidential. So it becomes a way if theres no room for the majority to essentially put all information through a strainer. It should be let this go out and be public, or should we not . I dont think thats what this committee is about. Mr. Chairman . You know, in the absence of a majority of a committee opposed, the chairman acts on behalf of the committee. Chairman lahey accepted documents on a Committee Confidential basis during Justice Kagans nomination, there is no indication that the Ranking Member agreed to that at that particular time. Senator . Thank you, mr. Chairman. Two quick points as i could. Whos documents are these customers these are the American Peoples documents. The president ial records act gives us the right to obtain them after the nomination from the professionals of the National Archives. Bill burke is not a professional of the National Archives. Archives of head that this is not their property. Equally importantly, because some will now make dire predictions about the appropriateness of the release of any of these documents, bill burke himself in his letter to us on august 31st said, and i quote, the president ial records act exemption one, which protects against the disclosure of classified information, did not apply to any documents for review. I agree with senator booker, this confirmation is too important for us to conceal documents that may reveal the nominees views, and i believe we should be proceeding under these grounds. Mr. Chairman . Maybe recognize, sir . I hope you dont say the same thing again. Sir, i will not. First of all, i will Say Something i havent set, which is that i the patience of g. O. P. That youre showing here. Representation of senator lee were right on quickly, challenging me. They not only were collegial, but they look to find a fair way to do with this process. I want to express my appreciation. I want to clarify something that i said before. There is no senate rule that accounts for this process, period. This is not a senate role. I did not violate a senate rule. I will pause. There is no senate rule that i violated, because there is no senate rule that accounts for this process. I say to a chairman that i respect, that i believe has been fair and good to me, i will say that i did willingly violate the chairs rule on the Committee Confidential process. I take full responsibility for violating that, sir, and i violated it because i sincerely believe that the public deserves to know this nominees record. In this particular case, his record on issues of race and the law. I could not understand, and i violated this rule knowingly, why these issue should be withheld from the public. Now, i appreciate the comments of my colleagues. This is about the closest i will probably ever have in my life to end i am spartacus moment. My colleagues, numerous of them, said they accept responsibility. Very serious charges were made against me by my colleague from texas. I dont know if they were political bluster or sincere feelings. If what he said was sincere, there actually are senate rules governing the behavior of senators. If he feels that i, and now my fellow colleagues who are with me, have violated those rules, that hes not a tempest in a teapot, but sincerely believe that, then bring the charges. Go through the senate process to take on somebody that you said is unbecoming to be a senator. Lets go through that process, because i think the public should understand that in the moments that somebody is up for a lifetime appointment, does the public have a right to know . That is not about the president ial records act. This is not by lunch by a violf that rule. Or senate rule. If somebodys going to land those charges, i hope they will follow through with me and senator durbin, senator, senator whitehouse, senator blumenthal, now senator feinstein. I hope they will bring charges against us. I am ready to accept the full responsibility for what i have done, the consequences for what i have done, and i stand by the publics right to have access to this document and know this nominees views on these issues are so profoundly important, like race and the law, torture, and other issues. Mr. Chairman, may i read the senate rule 29. 5, the standing rules of the senate, the vented doughlike benefit of all senators . And a senator, officer, or employee of a son who shall disclose the secret or confidential business proceedings of the senate, including the proceedings of the committees, subcommittees, and offices of the senate, shall ber exposure from the body, and dismissal from the service of the senate and punishment for contempt. Bring it. I would correct the senators statement that there is a row. There is clearly a row. Then bring the charges. All of us are ready to face that rule on the bogus designation of Committee Confidential. Just because there is a senate rule doesnt mean it can be misapplied or misconstrued, or misused. I think even the threat raised by one of my colleagues here is unfortunate. That is a kind way of putting it, with all due respect. I would just make one other point. We are dealing here with a lifetime appointment. Nothing we do here is more serious. Confirming a justice on the United States Supreme Court. Let the American People appreciate that we are here in the most solemn responsibility we have under the constitution. We need the full truth. Just as this nominee has sworn to give it to us, we are entitled to it from our colleagues. The question is, what are they concealing by this procedure . What are they afraid the American People will see . What are they afraid we would be asking of this nominee if we had all of those documents that have been denied us in this sham and charade . Senator lee, and then senator phillips. To senator bookers point, the document you are talking about has not been approved through the committee processes. Its been made public. I pledge to work with each and every one of few, if youve got a document, as to which a privilege has been asserted such that its not public it, i will work with you. I will work with you to try and make it public. Lets do it. I think we can do this, its not that difficult. We have done it several times, at least three times now. We can do it more. The privilege thing is real, though. This is not our privilege where dealing with. This is the privilege that belongs to somebody else. The privileged nature of documents has been around for a long time. Since the early days of the republic. The records, the notes of the convention, were ordered sealed for 30 years after the Constitutional Convention occurred in 1787. Im not sure of all of the reasons why, but those who participated in it decided that was going to be the rule. Sealed, 30 years. Those documents and belong to anyone else. They belong to those who attended that convention, and participated in it. There were at least two from that list, Oliver Ellsworth and james wilson, i believe, who were subsequently nominated to serve on the United States Supreme Court. No one demanded, to my knowledge, and no one could have gotten not dumb i notwithstanding the 30year seal agreement the Constitutional Convention. Even though though certainly would have been prohibitive as to how those people might have served on the the report. No one was accusing them back then of being a rubber stamp for the Washington Administration or anyone else. In fact, in 1795, the United States senate disapproved of at least one of president washington Supreme Court nominees. This was no rubberstamp. And yet, they respected the fact that they didnt own every document. Other people might own them. We dont own these, so we have to go through the process. A process ordained by a law that we passed. That only we have the power to change. Lets follow that law. We can follow the law and respect the process and respect the rights of each of our colleagues, and the rights of the American People to review documents that might be relevant here. But lets go through the appropriate process to do it. Mr. Chairman . I think i will be fair to the republicans. I think you should, too. Go ahead, senator. Thank you, mr. Chairman. I took nearly 17 years to get my college degree. I went to five different institutions. Im pretty sure none of them have been elevated to the ivy league. Thats right. I dont ever plan on running for president in 2020 or at any point in the future. I want to make one more comment, and then one request. The comment, as i hope everybody will record a transcript of whats going on right now, senator lee explains things, i think, an eloquent terms. Lets talk about the consequences of making this an untrusted body to receive documents under the president ial records act. You may rue the day that you do that, because youll probably get fewer documents in the future. What i would like to do, is ask all of my members. Perhaps we can actually demonstrate to the American People that we are prepared to expose our own records. I would like to suggest that for the purposes of the scotus nomination that all of us waive any rights to the speech and debate clause, that we allow all of our email records related to this scotus nomination to be made public on an immediate basis. I, for one, and ready to sign up for it now. I hope all my other members will do the same thing, because in the interest of transparency, certainly, it would make sense for every one of us, read the carless of what we want to do in the future, to expose that information to the American People. Are you done . I will start with my questioning. By the way, we are going to have to protect so everybody gets an opportunity to look at the fbi and anything else you want to ask at 1 00, we are going to have to go into the executive session and get that done before, if the senate does close down at 2 00. If they dont give us permission to meet after 2 00, weve got to get that out of the way. So we will do that at 1 00. Magis put a document in mr. Chairman, would you yield to a question about procedure . I use the wrong word closed. What were talking about, closed and instead of executive session. Would you yield to a question about procedure, mr. Chairman . Go ahead. Would you explain to me why we are having to truncate the hearing today . Im not sure we do have the truncated. It would be just in case the majority minority may object to the request the leader would make for this committee to continue to work while the senate is in session. Let me be sure i understand senator schumer is saying that we have to set shun while the senate is in session. Do not generally waive that rule . Generally, it is waived. But if its subjective, we cant meet. We want to make sure we get the executive or, the closed session out of the way. May i ask why, why senator schumer is doing that . I dont know. We have a nominee for the United States, we talked about transparent transparency. What is his basis for doing that . You have to ask him, i dont know. If i may, i would like to put a document in the record that the committee was told President Trump past decided to withhold pages of kavanaughs counsel records. 102,000 1002003 what did i say . Thank you. 102,000. 102,000 pages of the records, and a new constitutional privilege. Of course, that hasnt been done before. Im told theres no such privilege. There is an executive privilege, which is outlined in the president ial records act, and requires the president to notify congress and the archivist, which was not done here grade theres a little bit more to it, but i would like to put this in the record. Without objection, that will be put in the record, yeah. Judge kavanaugh, we have heard a lot yesterday about your record of independence and impartiality. You have done more than talk about your independence and impartiality, you have demonstrated judicial values of the bench. By my account, you ruled against executive Branch Agencies many times between 2006, january 2009. Of course, president bush was nominated who nominated you to the bench was ahead of the executive branch. You had no problems really against the president who appointed you. If thats what the law are required. I have no doubt that you would do the same on the Supreme Court, if thats what the law requires. You have demonstrated your impartiality. Some of my colleagues tried to depict you as hostile to the little guy, and always willing to rule for the powerful. Your record shows that you rule for the party that has the law on their side. So, that makes you out to be not a pro plaintiff judge or prodefendant judge. But to be a pro law judge. Let me ask you about a few of your cases that i think demonstrate that you will vindicate the rights of those who are less powerful in our society. Bill we have been waiting for about an hour for the candidate to speak, they are. Brett kavanaugh. As the protesters are heard in the background, we will see which way this goes. What you have been listening to for the past hours this whole argument over Committee Confidential. A series of documents that are given the committee that are not expected to be released to the public. Cory booker is arguing that he will go ahead and release documents dating back to Brett Kavanaughs time as president bushs lawyer in the white house. And risk being expelled from the senate. Thats the back and forth right now, we have reached ten 36 in the morning. Steve squeeze has been standing by. Hes been listening on. We have not heard from the witness yes. Judge kavanaugh himself has not been asked a question, or spoken yet this morning. Your thoughts as you see these heated exchanges continue in that hearing room . The first thing is, i think what job judge kavanaugh has bn doing these last few days has shown how well of a choice President Trump made in selecting him to be the next justice on the Supreme Court. He has got the right kind of judicial temperament you want by somebody whos actually going to interpret the constitution the way it was written as opposed to some of these people who think they can get on the bench to become legislators. I think that sure youre singing the senate with some of these unfortunately candidates for president in 2020 trying to almost start running in a president ial primary on the democratic side off of this nomination, it is just not what the senate is supposed to be about. Theyre supposed to be there doing their job. Bill in your time in congress, can you recall a time when this Committee Confidential rule has ever been violated . Im not aware of a time where it has happened. Look, you take an oath to uphold the laws and the rules. If you dont like the rules of the senate, youre a senator, go try and change the rules. But to try and leaked classified information or to violate the rules because you are trying to appease some radical left base, if you look in these primaries on the democratic side, liberals arent liberal enough. You almost have to be socialist to get through on the democrat side now. Theres this race to the radical left. Thats not where america is. We are a centerright nation, and i think if they continue to just one person has to be more absurd than the other to get attention on the democrat side. Is that really what they are going to be about . Donald trump is getting this economy back on track and people care about jobs. They want security at home. They want judges who are going to interpret the laws. What President Trump has been doing follows through on all that, and i think this move towards socialism is going to backfire. Bill go back to original point you were talking about. Does any of us have been without the tv cameras . Clearly not. Bill what happens behind closed doors among your colleagues . To get things like this . Just enlighten us and our viewers. You can disagree over philosophical differences. When you are sending out an email raising money for your president ial campaign before you even ask your first question, i think people know the political motivations are behind a lot of the shenanigans that are going on. Frankly, its beneath the dignity of the senate to be trying to turn this into a circus instead of asking her questions. If you have got questions about rulings he has made, hes got a real record of a judicial record that i think is exemplary. Its part of the reason why President Trump picked him to be a good jurist on the Supreme Court. Go and ask her questions about those things that he is actually ruling on. To try and make a spectacle out of it because you want to look more radical left than the other democrat senators who are running for president , thats not what these hearings should be about. The chances of him being confirmed after we have seen so far, go to my congress and, your final thoughts. He deserves to be confirmed because he has the right judicial temperament to surround Supreme Court. President jim has done a good job. Not only with the with neil gorsuch, but now judge kavanaugh on fulfilling some of his most important duties as president s of the United States. I think the American People see that this is what the elected and four. Bill thank you for your time. In a couple minutes, steve scalise. Chuck grassley about to begin the questioning, a protester was led out of the room. We will get back to you now. He made a famous quip about television cameras, that they would have to roll over his dead body. I can respect that view, i just think its plain wrong. Many of my colleagues on this committee, allowing cameras in the federal court, would open the courts of the public and bring about a better understanding of the court and its work. You may be aware that for a number of years i have sponsored a bill, the sunshine in the courtroom act, which gives judges the discretion to allow Media Coverage of federal court proceedings. Would you keep an open mind on cameras in the courtroom, or if you have strongly held views on it, dont be afraid to tell me. Mr. Chairman, i appreciate your longstanding interest to the issue and transparency for the courts, of course. I will tell you what we have done on my court, briefly. Then i will tell you some general thoughts Going Forward, if i were to be confirmed. And our court, we have gone from audio release at some date much later, then we went to audio date released the same week, then we went to audio release same day. Now, we are allowing audio to go out to live with the oral arguments. That process has been one in which the judges have learned from experience, and become comfortable with the additional transparency that has the audio over time. That process has worked well in our court. On the Supreme Courts, i beliee the best approach for me is to listen to the views of people like yourself, mr. Chairman, and others i know who are interested in that, to learn if i were to be confirmed from the experience they are, and to see what the experience there is like. To listen to the justices currently on the Supreme Court, as i have said, be part of the team of nine. I would want to learn from the other justices what they think about this, because several of them come as you know, mr. Chairman, when they are in my seat, express support for the cameras. Then when they are there for a few years, they switch their position after experiencing it. I would want to talk to them, about why that position. As i said to senator kennedy last night, too come i want to think about the difference between oral argument and the actual announcements of the decisions. I think those are two distinct things. There hasnt been much focus on the possibility of live audio preferred symbol, of the decision announcements or the video of the decision announcements. I think thats a distinct issue from oral arguments, and i would be interested in thinking about that and talking to my colleagues if i were to be confirmed. I will have an open mind on it, and i do think when you attend oral arguments at the Supreme Court as i have many times, or you attend the announcement of decisions, it is extraordinarily impressive to walk into that building and the majesty of that building, the building itself, conveys the stability and majesty of the la law. To go into the courtroom, and to see the justices working together as they do to try and resolve cases, is extraordinarily impressive. It makes you confident, i believe, in the impartial rule of law and in each member of the Supreme Court to see them in action. So, i do understand your point of view on this. I would certainly keep an open mind on it and listen to you and listen to the other justices on the court, of course. Mr. Chairman, im going to go back to row. Most of us look at you as the deciding vote. I asked yesterday if your views on roe have changed since you were in the white house. You said something to the effect that you didnt know what i meant, and we have an email that was previously marked confidential but is now public, and shows that you asked about making edits to an oped that read the following, and i quote, first of all, it is widely understood, accepted by legal scholars across the board, that roe v. Wade and its progeny are the settled law of the land. He responded by saying, and i quote, im not sure that all legal scholars refer to roe as a settled law of the land at the Supreme Court level, since court can always overrule its precedent. Three current justices on the court would do so. This has been viewed as you saying that you dont think roe is settled. I recognize that its what legal scholars refer to, but please, once again, tell us whyu believe roe is settled law, and if you could, do you believe that it is correctly settled . So, thank you senator feinstein. In that draft letter, it was referring to the views of legal scholars. I think my comment in the email was that might be overstating the position of legal scholars, so it wasnt a technically accurate description in the letter of what legal scholars thought. At that time, i believe chief justices rehnquist and scalia were still on at that time. The broader point was that it was overstating something about legal scholars. Im always concerned with accuracy, and i thought that was not quite accurate description of all legal scholars. He referred to all. To your broader point, roe v. Wade is an important precedent in the Supreme Court. It has been reaffirmed many times. It was reaffirmed in planned parenthood versus casey in 1992, when the court specifically considered whether to reaffirm it or whether to overturn it. In that case, in great detail, the three justice opinions of justice kennedy, justice souter, and Justice Oconnor went through all the factors, the stare decisis factors, and decided to reaffirm roe. That makes precedent on precedent. Its relied, kc itself has been relied on in the subsequent cases. That precedent on precedent is quite important as stare decisis in this contest. A similar analogy, the United States versus dickerson case in 2,000 where the Court Considered whether to overturn miranda versus arizona or to reaffirm it. In that case, chief Justice Rehnquist reaffirmed miranda despite the fact that chief Justice Rehnquist had been a critic of miranda in his early days and had written some opinions quite critical of it. That dickerson case is similarly precedent on precedent, which is important to Going Forward as you think about the stare decisis calculation for a case like miranda. That is why both of those cases, planned parenthood versus casey and dickerson are cases that i would refer to as precedent on precedent. So you believe it is correctly settled, but is that correct law and your view . Senator, in that case or n dickerson, or on cases like Citizens United or heller or the United States versus lopez, just the whole body of modern Supreme Court case law, i have to follow what the nominees who have been in the seat before have done. Judge, a yes or a no will do. Just come if i can briefly explain. Briefly, i will try to be brief. Yes, you can. When you are in this siege, im not just sitting here for myself. Im sitting as a representative of the judiciary and the obligation to preserve the independence of the judiciary, which i know you care deeply about. One of the things i have done is study very carefully what nominees have done in the past, what i have referred to as nominee precedent, and Justice Ginsburg but really all of them have not given forecasts. Justice kagan has capped it well, she often does, talking about questions like that when you are asking. You cant give a thumbsup or thumbs down and maintain the independence of the judiciary. I need to follow that nominee precedent. Mr. Chairman, can i ask that the email issue be made part of the record question . Pardon me . I would like to add that the email issue be part of the record. We would be happy to do that. Thank you. During the time in the bush white house, the administration actively took steps to limit womens reproductive choices. This included reposing the global gag rule to prevent foreign to spend money on Reproductive Health, and from preventing the fda to make a plan b contraception available over the counter. During your service at the white house, 2001 to 2006, did you work on any issues related to womens Reproductive Health or choice . President bush was a prolife president. His policy was prolife, and those who worked for him, therefore, had to assist him of course in pursuing those policies, whether they were regulatory there was partialbirth legislation that was passed as well. Some of those things might have crossed my desk. I cant remember specifics. I think this came up when Justice Kagan worked for president clinton, he had a different view on that issue. She had some work for president clinton. I consider myself working for president bush, i was there to assist him. Let me go to torture. During the time you worked in the right white house, the offf Legal Counsel concluded that harsh interrogation techniques were illegal. Even though congress had passed a law in 94 banning torture. The office of Legal Counsel took a sweeping view of president ial power, and concluded that the president could override the statute. In response, and 2005, the congress adopted an amendment championed by our colleague senator mccain. I was the cosponsor. It stated that only interrogation techniques that can be used are those authorized in the army field manual. Was the office of Legal Counsel correct when it concluded that the president could ignore the torture ban . The office of Legal Counsel, senator, subsequently withdrew those memos, as you know. As i have made clear in some of my writings, the review of judge david barons books, some of my opinions as well, the president does not have the authority to disregard statutes passed by congress regulating the war effort, except in certain narrowly described circumstances that are historically rooted. The common example being in command of and battle. A general proposition, the president has to comply with the law. The president is subject to the law, including in the National Security context. That is the lesson of the youngstown steel case of jacksons category three. As i have said repeatedly in my writings, which is where congress has prohibited the president from doing something. It is critically important, essential to the rule of law, as Justice Jackson said. The equilibrium of the country is at stake in category three. I have written it about it quite frequently. Today we have a president who said he could authorize worse than waterboarding. How would you feel about that . Senator, im not going to comment and dont think i can, sitting here but you know with the law is, youve made that clear. I know what the law at i asked, specifically, how do you feel about that . I feel that i should follow the law as a judge. I know what the law is, and i know your leadership on this issue, both with the report you did which was the thorough documentation of things that happened as well as recommendations for the future. I know your relationship with senator mccain on the 2005 act as well. I know with the law is, and about how the separation of powers works when Congress Passes laws of the kind that you have. One last question on this in september of 05, president bush issued a signing statement regarding the detainee treatment act of 2005. Reserving the president s right to disregard that the laws ban ban on torture, disregard it if it interfered with his constitutional authorities as president. What was your involvement, if any, with the signing statement . While i was staff secretary, anything that reach the president s desk with the exception of covert matters would have crossed my desk on the way to the president s desk. It would have crossed my desk. In that case, the signing statement, the drafts of it, that process would have crossed my desk at some point. Okay. Any 2013 Panel Discussion, you did nothing about it across your desk and that was that. There was debate, as i think i have mentioned come about that. The council to the president , miss myers at the time, was the ultimate advisor on that matter for the president , and would have been the one who primarily dealt with that with the president. It was important that the job i had there, not to supplant the policy of legal advisors. That was not my job. My job was to make sure that the president had the benefit of the views of his policy and legal advisors. One more bushera question on this. In a 2000 Panel Discussion at nyu law school, regarding Bush Administration and antiterrorim policies, you said the Bush Administration went right up to that legal line to defend the security of the United States. Implying that bush policies did not cross the legal line. Do you mean to suggest that the Bush Administrations post9 11 programs, including the cia torture program, were illegal . No, senator. Thats not what i was suggesting there. Let me try to provide you an explanation. President bushs view, as i think he has said publicly, was in trying to keep america safe he was going to do everything he could within the law. He would rely on his lawyers to provide boundaries on what the law is, and he would go up to that line as he thought effective as a matter of policy. It was up to the lawyers, therefore, to make sure that they were giving sound advice and having the backbone. This is something that your legislation reinforces. Lawyers need to have backbone, even in pressurized moments, to say no. I have talked about that many times. One of the most important response abilities of an executive branch lawyer, in the passions of the moment, where the pressure is on, where the president wants to do something, perhaps, is to go into the oval office and say no. You shouldnt do this. And thats something ive written about, talked about, and experienced in my time with president bush. I have encouraged long you youns to have a backbone and say its the most important thing. Thank you. A quick change of subject. You sat on a case where a trainer was killed while interacting with a killer whale during a live performance. Following her death, the Occupational Safety and Health Administration found that see world had violated workforce safety laws. The majority agreed with the agency that see world had violated the law. According to what i know, you disagreed. In your dissent, you argued that the agency lacked the authority to regulate employers to protect participants in sporting events or entertainment shows. However, the statute, as enacted, applies to each employer. A defined employer is anyone engaged in business affecting commerce who has employees. Where in the text of the law did Congress Exempt employers of animal trainers . Thank you for the questions, senator. The first point i want to make is that was not a case that involved potential compensation of the family. That was handled through the state tort system, or through a settlement between zero and the family. The case before us had nothing do with the compensation of the family, it had to do with the separate regulation of seaward. The issue, senator, was president. I follow, as a judge, i follow precedent. The precedent of the Labor Department as they read it was that the Labor Department under the statute would not regulate what it called the intrinsic qualities of a sports or entertainment show. Lots of sport and entertainment shows have serious dangers, whether its football, the balance beam and gymnastics, the high wire act at the circus, lion tamer show, and the sea world was of a piece with that precedent. It said the Labor Department would not regulate, for example, where whether or not baseball hats have ear flaps or whether to prohibit the punt return or to make the balance beam have nets. This seemed to be covered by that precedent, as i saw it. The Labor Department tried to distinguish, for example, the dangers of football from the dangers of the sea world show. I did not, as i explained in the opinion, find that distinct din persuasive. Congress could come of course, make the decision to regulate tf Sports Entertainment shows. Or, the Labor Department could change its precedent. I made it clear that state tort law, as the nfl has experience with the concussion issue, state tort law always exists as a way to ensure or help ensure safety and things like the sea world show. Thank you. A question, if i may, about independent agencies. Congress has established several independent agencies. We believe they are essential to enforcing our laws and safeguarding consumers. Congress requires the president to have good cause to remove the heads of these agencies, to insulate them from political interference. You have objected to this limit on the president s power. You have struck down the 4cause requirement in a case involving the Consumer Protection bureau. The d. C. Circuit disagreed, and overturned her decision. If the president can fire the heads of independent agencies for any reason, what is to prevent political interference in these independent agencies . Senator, i have followed to the humphreys executor precedent. I have referred to it as entrenched. That is the precedent that allows independent agencies, and protects them from atwill firing. As a general matter, i have affirmed or followed the precedent of henris executive. The example youre talking about, the congress establish a new independent agency that does not follow it. Thats all i thought was problematic there. I did not invalidate, did not say the agency should stop validating. I said it shouldnt continue performing its important functions on behalf of consumers pump but either needed to be restructured or the president should be able to move the single head at will. The limited set of documents we have received indicates that you were heavily involved in the bush white houses response to congressional investigations after the enron scandal. Is that accurate . That is accurate. We had a document request from senator lee liebermans committee, that was one of the lawyers that had developed gather the documents for people within the lighthouse white hod negotiate documents. I had to negotiate documents from senator lieberman staff. Right. So you know that enron was one of the greatest corporate scandals in american history. I can tell you as a senator from california, not only did many of my constituents lose everything financially when enron collapsed, under the weight of the accounting fraud, but the fraud and market manipulation contributed to an Energy Crisis in california. White house emails show that you were asked to review a set of draft talking points for press secretary ari fleischer. It addresses the role of enrons market manipulation in the california Energy Crisis. Essentially, the talking points said if there was any misconduct by enron it was up to the federal Energy Regulatory commission to investigate and punish the company. I am not going to ask you if you remember the specific document, but was that your view, that it was the regulatory body that was supposed to stop this sort of misconduct . I am not recalling the specifics of that, senator. My role as a general manner was to help gather documents in response to senator liebermans committees request, as i recal recall. I know he would have a role in that, but i dont know if i thought i dont knows that was my area of expertise, so im not recalling it specifically, senator. [protester yelling] thank you, mr. Chairman. Thank you. Senator hatch . Thank you, mr. Chairman. I appreciate the way you have run these hearings, and its these types of irresponsible outbursts that are hard to believe. Judge kavanaugh, i would first like to commend you for how you conducted yourself these last two days. You have displayed the levelheadedness and decency that so many of your friends tell us actually exists. I would say your friends and colleagues have described in their letters to this committee. I wish you could say the same with everybody who has attended this hearing, or conveyed it, covered in a social media. But, i cant. I am deeply concerned about the theatrics we have seen these last two days. I have been on this committee for 42 years. Longer than any of a person except senator leahy. I am the former chairman. Never have i seen the constant interruptions we witness at this hearing. Commission hearings are supposed to be an opportunity for the American People to hear from the nominee. Unfortunately, it seems that some on the political left have decided to try entering this hearing into a circus. I worry about the precedent for future confirmations. Thats not the worst. The worst of it are the attacks against people who arent even up for confirmation. They happen to be here in the room to support the nominee. Its bad enough that Supreme Court nominations have turned into allout war against the nominee. Have we really reached a point where anyone who supports or even sits behind a nominee must also be destroyed . Has our tribalism really reached that low . To those who have been unfairly caught up in the mob mentality the last few days, i want to say, you have a right to be here. Supporting so many believe in. Dont let the fact that there are a lot of, frankly, sick people out there cause you to lose faith in our political process. We need good decent people. To step forward, to contribute even when it is ugly. Particularly when its ugly. Just now to my questions, let me ask you this. As i did yesterday, i would like to ask you to keep my your anss concise we can get through as many of them as we can. Late last night, one of my colleagues ask you a series of openended questions about any conversations you have had with anyone at a 350person law firm about special counsel bob mueller or his investigation. You said you did not remember having had any such conversations. My colleague did not clarify why my colleague was asking the questions, and it did allow me to complete your answers. I want to give you a chance to respond, if youd like to. First, senator, i dont recall any conversations of that kind with anyone at that law firm. I didnt know everyone who might work at the law firm. I dont recall any conversations of that kind. I havent had any inappropriate conversations about that investigation with anyone. Ive never given anyone any hints, forecasts, previews, winks, nothing about my view as a judge or how i would rule as a judge or anything related to that. I think you for the opportunity to clarify and reassure you on that. Thank you. With all the accusations and insinuations and innuendo being hurled around yesterday, there is something that i have to come clean about i am on the board of visitors of the federal society. Its true. For those who are not familiar with the federal society, it generally holds and puts the panels on legal issues, covering all sides of these issues. The liberals, the conservatives, et cetera. Its a very responsible organization. The american constitution society, the democratic organization, does much the same thing. I respect them. Except, it focuses on liberal or progressive lawyers. This is familiar to my democratic colleagues on this committee. They have been involved with acs from keynoting the annual conference to being an Honorary Host Committee chair. Speaking on panels to writing blog entries for the organization. I havent heard a nasty rumor that one of them spoke at a Federalist Society event, can you believe that . You have already said that when it came to your nomination you spoke with the president , the Vice President , and the white House Counsel don mcgann, not the Federalist Society. I dont need to ask about that. My question for you is this what has your experience with the Federalist Society been . Senator, thank you. The Federalist Society, as you note, provides, holds debates at law schools bill on both sides. A Typical Program will have two speakers and a moderator, thats typical, with the two speakers presenting different views on an issue. It could be, for example, Fourth Amendment privacy where you have someone who has got a different view on National Securityrelated Fourth Amendment issues, or on free speech issues, all sorts of legal issues. They charge you have debates where both sides are presented at the law School Events ive been to. At the conventions, they will always have panels of four or five with a moderator. They will be a spectrum of views represented on a different topic. They are very enriching in terms of knowledge of the law, and they are also enriching, i believe, in terms of providing different perspectives on the law. They welcome people and actually insist on having people from all different perspectives at the event. Its very beneficial to the law, i think. The programs they have at the law schools, their very educationals. They held some of the best debates at the law schools. The organization, which itself does not lobby or file amicus briefs, there is a very valuable service as a whole for bringing together very different views on important legal issues. I applaud them for their efforts to bring speakers to campus and provide legal debates on campus and in lawyers conventions. Youve described it quite well. Earlier this year, i attended oral argument in microsoft versus the United States, also known as the microsoft ireland case. Naturally, i was very interested in that. The case was the meaning of the Communications Act, and for data stored overseas, the United States falls within the. I had introduced the legislation known as the cloud acted to resolve this issue. Oral argument, Congress Passed the cloud act, the smooting the case before the clerk. The specific issue in the microsoft ireland case has been resolved by my legislation. But the case also raised a broader question that i would like to ask you. When the stored Communications Act was passed in 1986, no one imagined a world where data could be stored overseas but acceptable instantaneously in the United States. It was clear that the act covered data stored in the United States, but it was less clear that it extended the data stored abroad using new technologies that were not available in 1986. How do we interpret our laws in light of changing technology . How do we determine whether the authors an end actors of legislation would have been in unforeseen situations . Senator, i think they are, as elsewhere, the job of a judge is to focus on the words written in the statute passed by congress. Sometimes, congress will write a statute where the words are very precise. Its quite clear it covers only something that might be in existence at the time. Sometimes, congress will write a broader, more capacious words, as does the constitution at times. That can apply to new technologies, for example, the Fourth Amendment, of course. And the constitution applies to things that were not known at the founding, including cars and communication devices that were not known at the founding. So, too, with statues, it depends on how broadly youve written it. This raises a broader point, which is the issue of privacy and liberty on the one hand versus security, Law Enforcement on the other. An enormous issue Going Forward for the congress, it in the first instance, and also for the federal courts including the Supreme Court Going Forward. The coverage in case this past term is a good example of that, written by chief justice roberts. As i look ahead over the next ten to 20 years, that balance of Fourth Amendment liberty and privacy versus security and Law Enforcement is an enormous issue. I appreciate your elucidation on that. On the domestic front, there has been debate for some time now in congress about whether our laws should be updated. To require a warrant for the content of Electronic Communications, regardless of how old those communications are. As you may know, the Electronic Communications privacy act currently distinguishes between communications that are less than 180 days old, and those that are more than 180 days old, requiring a warrant for the former but not the latter. Can you speak generally to the importance of work requirements, of why they are an important bulwark against the government overreach . The warrant requirement helps ensure as a general matter that the executive branch is not unilaterally able to invade someones privacy. Someones liberty, without judicial oversight that ensures there is probable cause or whatever the standard might be in a statutory situation to get someones records or information or otherwise invade their liberty or privacy. The judicial oversight as part of the checks and balances of the constitution and congress has written that also in several statutes come as you know, senator. I want to return to the email at senator feinstein was asking you about. You were asked for your comments on an oped that was going to be published by a group of prochoice women in support of a Circuit Court nominee. You said i am not sure that all legal scholars refer to roe as the settled law of the land at the Supreme Court level, since courts can always overrule its precedent. You then added the point there is in inferior court. Were you giving your opinion on rove there, or were you talking about what law scholars might say . I was talking about what legal scholars might say. I thought the oped should be accurate in describing legal scholars. Okay. So you got that cleared up. You have been critical of the practice of judges sentencing defendants based on uncharged or acquitted conduct. With regard to acquitted conduct in particular, i agree that you can sentence a defendant to a long prison term for a crime that the jury acquitted the defendant of, thrives in the face of a jury trial. He written that you agree it likely will take some combination of congress and the Sentencing Commission to systematically change federal sentencing to preclude use of antiquated or uncharged conduct. Why do you take issue with the acquitted conduct at sentencing, and why do you think this is an issue that will likely require congress to resolve . The opinions i have written on this. And i have written several, saying in essence, this. The defendant is, say, charged with ten counts and is acquitted on nine and convicted on one, and then the criminal defendant is sentenced as if he or she had been convicted of all ten, because the judge just says well, i did x, or why, and under my discretion which you now have under the case law for sentencing, im going to send into the same anyway. Defendants in the public, the families of the defendants, understandably say that seems unfair. I thought the point of the jury trial was to determine whether i was guilty or not guilty on all of those charges. If im getting sentenced exactly as if i were guilty on all the charges, that seems a violation of due process. So, i have written about the fairness and perceived fairness of the use of acquitted conduct in sentencing. Ive had a judge in my court, we have both written about it several times and made clear our concern about the use of acquitted conduct and how it affects the sentencing system. Why i have said congress may need to look at it, although i have also pointed out individual district judges can look at it, is because under the current system, sentencing judges have wide discretion in picking sentence. Its hard for an Appeals Court to say that you have infringed your discretion given some of the case law the Supreme Court grants that discretion. I dont like the practice, and i have made that clear in my opinion. I am just repeating my opinions here, because of the unfairness and perceived unfairness of it. Okay, this committee has been chasing an elusive deal sandra youve been watching day three of the Brett Kavanaugh confirmation hearings. Halfway through the 11 00 eastern time hour, and cory booker, senator, has now released these confidential documents despite opposition from g. O. P. Senators saying, initially, he was willing to risk getting kicked out of the senate to do so. He said publicly and that hearing room, bring it on. He posted them to his twitter account. You come too, can go see them. This is what he brought up in his questioning. He has posted those now. Shannon bream is at the courthouse, she is on capitol hill for us right now. Shannon, if you can let us know what we need to know happened here, did senator cory booker break rules to release these documents . Thats exactly the question that i put to the staff. I said to them are you saying these documents are still marked as committee classified or Committee Confidential . Meaning they should be the public sphere, or are you saying they should be released . Ive not gotten a straight answer. It would suggest that what has happened they have put out these four documents, continuing to have this Committee Confidential leave on them. You are at senator booker go back and forth with a number of folks on the panel today saying i know what i doing against policy, im willing to take the consequences. He talked about this being his i am spartacus moment. He said hes willing to take the punishment and the penalty. One of the most senior members said he wanted to ask them to reconsider what hes doing, flooding the rules we are pretty sort of things. Another republican said are you know going to make it so the senate cannot be reliably trusted or a trustworthy partner in handling sensitive documents . If you throw these rules out about this documents, these policies any time you so choose, then a number of the senators on them said that thats what theyre going to do. They never voted for these, they are set by the committee, but these people say they never voted on them and arent going to follow them. I can tell you one of the documents im looking on is one that came up last night between senator booker and the nominee judge kavanaugh about an email entitled racial profiling. Ive got in front of me. It was a discussion within the Bush Administration about how they were going to work on security policies. Keep in mind, this is dated january, 2002. This is literally just weeks, a couple of months, after the 9 11 attacks. There was a debate internally about exactly how they were going to handle policies or guidelines come potentially, from the government with regard to security. This is what judge kavanaugh said at the time to one of the other members. He said the people who favor some use of race or National Origin obviously dont need to grapple with these interim questions, but the people such as you and i who generally favor Effective Security measures that are raceneutral, we do need to grapple with these things now. What he and another person were discussing is they want to find some way to make the security measures effective, but generally favoring raceneutral. He kept pounding on that, saying generally, raceneutral may be you were willing to consider something that was race have neutral. Keep in mind, this is weeks and months after 9 11. Its clear that this administration would have really tough questions they were contending with. Now these are public. Again, i wait to hear from the booker staff, from the center himself, but whether that Committee Confidential label has been lifted. As far as i understand right now, it isnt. He has decided to release them anyway. He says he is willing to the clock done at consequences. Bill you wonder how many more emails can be leaked during this process. Can any of them stop this nomination . They are doing whatever they can to do so this process down. You know they have been taking a lot of heat from progressive groups, 13 of them that senator letter yesterday really calling out to the senate democrats, their leadership. The Senate Minority leader saying theyre not doing enough to put the brakes on it. Since this hearing started and well before that, once it formally got started, it has been that they dont have documents. From the documents that theyve been given, theres no time. Been delayed. Were going to go ahead and release things we think are pertinent to the mega people. Why should we go through this process is long and arduous . We dont have time. They have questioned this idea that the bush and administration, president bush, 43, has the power to assert a privilege over this. They dont belong to Brett Kavanaugh, they dont belong to the senate. They really are in the purview of the former present. They say they cant ignore the part president because they dont like the way it works. Bill shannon, thank you. We drop back in. Or no religion at all, we are all equally american and the constitution of the United States also says, in article six, no religious test shall ever be required as a qualification to any office or public trust under the United States. That was an important provision to have in the founding constitution to ensure there was not discrimination against people who have religion or dont have religion. If the foundation of our country, we are all equally american. Certainly thank you, mr. Chairman. As i mentioned to you earlier, i have a number of letters asked to be placed in the record as well as emails that were declassified. Some come at 3 00 this morning. Placed in the record. Thank you. I know there was a claim this morning that the committee was following my precedent. Not so. Justice kagan, we had 99 . Of her documents of her time in the white house. Of course, we have less than 10 of yours. There were 860 documents designated as Committee Confidential by the nonpartisan National Archives, that was discussed with both democrats, republicans on the committee, nobody objected to it. Lets pull up in our questions yesterday. We discussed, you worked with nominations in the bush white house. He received a stolen material. From republican republican star named manny miranda. A digital watergate, he stole 4,670 computer files from six Democratic Senators. Hes doing this in an effort to confirm president george w. Bushs most controversial judicial nominees. Some of the most contentious fights of the day, and this republican stole 4,678 computer files. In 2004 and 2006, you testified and a number of centers, both republicans and democrats, asked you. You said you never received any stolen materials. That doesnt appear to be accurate. You also testified that you knew nothing about the scandal until it was public, and if you had suspected anything untoward, you would have reported it. You also testified to senator hatch that he never received any document that appeared to you to have been drafted or prepared by democratic staff. I also asked you yesterday whether mr. Miranda asked privately offsite, and documents related to senators biden and feinstein. I also asked about a decision that you quote intel with extraordinary detail and specifics about what i was going to ask, i have the controversial nominee just days later. Something i never said publicly. A nonpublic letter of mine before any mention of it was made publicly. You testified you didnt recall anything specific, but you thought the sharing of information between staff was common. Let me ask you this has anyone told you what any Democratic Senators have been advised to do by our staff at this hearing . I think there has been a lot of [protester yelling tell the truth [protesters continuing to yiel yield. Yelled] what i meant individually with the 65 senators including almost every member of the committee, a lot of the senators, a lot of you in the meetings, if its an issue you are interested in, i think your staff is probably talking to for example, senator leahys staff. Theyre asking him to do this at the hearing tomorrow. I think you, yourself, told me what you are going to ask. I tried to give you a good heads up. I appreciate the meeting. Has anybody else told you this is what leahy staff is asking him to ask at the hearing tomorrow . I think this might be a different kind of process. You all are very transparent when i mess with met with you. Youre saying this is what he would focus on, and it turned out you were accurately telling me youre to make your concerns. But did anybody and you anything marked highly confidential in one of these . Im not remembering anything like that. You all did talk about the issues. In other words, there were no surprises. Not no surprises, but you gave me a basic concern and issue i want to make sure we are clear on this. Nobody handed you something marked highly confidential, but that is material you received from manny miranda. For example, on july 18th, 2002, days before an extremely controversial hearing for the fifth circuit nominee priscilla owen, mr. Miranda sent you an email with the subject line highly confidential. Senator biden staff was asking you not to attend the meeting that day. On march 18th 2003, mr. Miranda sent you several pages of talking points that were stolen, verbatim. Stolen. Verbatim. From democratic files. The talking points revealed democrats making another controversial nominee, miguel estrada. The subject line of the email says not for distribution. Meaning, mr. Miranda was asking you not to share the information. This has now been, as of 3 00 this morning, made public. So, yesterday when i ask you about specific events, you said you didnt have any recollection. So, im not going to ask if you remember receiving this email. Im going to ask you this why would you ever be asked to keep secret democratic talking points if they were legitimately obtained . I am looking at these, senator, and it says, for example it looks like of that biden staff is asking him not to attend the hearing. I dont know why it look how you received it. I know, highly confidential i dont even know why thats confidential, because whether it is or not, wouldnt you consider it somewhat unusual to be receiving something from a republican staff member marked highly confidential revealing something of democrats going to do . As i reveal yesterday, senator, my understanding of this process is that the staff to talk with one another. That they are not camps with no communication. That was my experience when they worked in the white house, so it looks like bidens staff is asking them not to attend the hearing and that would have been pretty standard kind of information that would be not really. I would be amazed if somebody handed me a memo saying this is a confidential memo that senator grassleys has prepared for him. I natalie would not read it, i would be on the 20 measly two senator grassley sing im bringing over something that just drive to me, you better take a look at it. The received on july 20th, 2002, an email from men will miranda saying that his staff distributed a confidential letter to democratic councils. Not to republicans. He said i received that letter in the strictest confidence. You were asked explicitly by mr. Miranda to take no action on the email without his, his further instructions. He you never ask how he receivet in strict confidence. He received an email from miranda saying on 100 info about a controversial nominee, further, on august 13th, 2002, emailing obviously taken from my internal emails, what hes going to do. Did any of this raise a red flag in your mind . It did not, senator, because it all seemed consistent with the usual kinds of discussions that happen. Sometimes, people do say things of heres what my boss is thinking, but dont share it around. I must have had so many conversations in the course of my life like that, where someone is saying like that about something. In other words, trying to give you a heads up on something. That just seems standard, senate, staff. The direct answer to your question is, for example, it looks like bidens staff is asking not to attend the hearing. That wouldnt have raised anything at all for me other than not where it came from . On june 5th, 2003, received an email from the Republican Senate staffer with the subject line spying. That is not overly subtle. This staffer appears in over 1,000 documents we received together with both you and mr. Miranda. She says she has a mole for us, and so forth. None of this raised a red flag with you . It did not, senator. Again, people have friends across the aisle with a talk to. At least this was my experience back then. Maybe it has changed. There was a lot of bipartisanship on the committee. There was a lot of bipartisanship among the staffs. There were a lot of friendships and relationships where people would talk to ive got a friend on senator kennedys staff, i have a friend on senator hatchs staff, i have a friend on senator specters staff. The kind of confirmation conven information sharing was common. It did not raise flags. I was born at night, but not last night. If i found somebody that said and they had stolen this, dont tell anybody we have this, that would raise some red flags. We only have a fraction of your record. I do think that the chairman open these up at three this morning. As you know, the president has asserted executive privilege. Its the first time we have had to face this appear on a nominee for my fair or democrats. 102,000 paces of material. 102,000. Just in overtime in the white house. That includes a lot on judicial nominations. Can you confirm for me today though that 102,000 pages, no emails from mr. Miranda marked highly confidential or do not share or take no action on this, describing what he has found out the democrats are thinking . Senator, im not involved in the documents process. I dont know whats in them. That is convenient. We dont know whats in them, either. Because you never had so much held before. We dont know whats in all the documents, they are still being gone through by the archives. Because this is being rushed through. We dont get a chance to see them. Thats not fair to us, and, frankly, judge, its not fair to you. You are part of the intelligence to be confirmed, so you dont have to care. But, i care. I care about the integrity of the Supreme Court. I care about whos on there. I think you should care whats in that, just as we should care whats in it. More documents than i had time to discuss today. I find it impossible to reconcile what you are directly being told, that your testimony that you received nothing stolen and had no reason to suspect anything was stolen. When, frankly, as we now know, the republican staffer many miranda stole things. Some of the things he stole went directly to you. Let me ask you another one you testified in 2004 that aside from participating in a court argument, he did not work in the nomination of judge william pryor. He was a controversial nominee, called roe vs. Wade thurbers abomination in the history of constitutional law. He argued that the constitutional right to samesex intimacy would make activities like necrophilia, b staley,. You said you didnt work under his nomination, personally. But he did participate in the working group, did you not . We all met the process, theres something called the white house judicial selection committee. Judge gonzalez, the chair of that committee. Beth started immediately after president bush came into office in 2001. So he would meet with memos. Individual members of the staff would be assigned to different did you interview with him prior . I dont believe so. Its possible, but i dont believe so. If i did, it would have been part of the general process where people came in. I put in the record, exhibit c. You said you did interview him. If possible, we interviewed hundreds of nominees, senator. We met every week for several years to go over nominees. We worked closely with the home state senators. I had various states for District Court, i had illinois, california, senator feinstein and senator boxers staff. Senator mikulski. We would sit in sometimes on interviews of other people who came in, then we would meet and go over the memos. Then we would meet with the president. We met every week with the president before september 11th, after september 11th, those meetings became less frequent. You had recommended him internally for the 11th circuit seat, had you not . I have no reason that i wouldnt have recommended him, because he was a highlyqualified attorney general of alabama and senator sessions, of course, knew him well. He was well respected. The only reason i asked was one of the emails we have appear says brett, at your request, asked matt to speak with pryor about his interest. Im not asking these questions to get you in a bind, judge. Im asking them because it is so easy on these hearings to say i dont remember and oftentimes thats the case. But you have mentioned mr. Mr. Gonzales. He had difficulty remembering when he came here. He had one hearing, so he wouldnt have a problem, i give him 3545 of the questions ahead of time. Everyone of them, he said i dont remember. I dont recall. And every question, every question asked by republicans or democrats, said i dont recall, i dont number. Surely come after that he went to private practice. I think it is so difficult that you dont remember the things done by somebody who, i think on both sides of the aisle, was one of the most egregious Committee Confidentiality. Many miranda stole material from here, stole it, to send it to you and others at the white house. I do have an recollection of that . Ive seen the emails, but your larger question was did that raise a red flag. I have answer that, no. Well. When youre in the white house, was part of your job to coach the nominees how to answer democratic questions about roe vs. Wade . Part of our job would have been to prepare nominees more generally, it was common for senators to asked that question then, as it is now. I assume that we would have been involved in going through mock sessions. I know we were involved in going through mock sessions, which is very standard for democratic in mock sessions with at least one republican senator from this committee, and other republican senators. Im not saying that as a gotcha thing, you did advise her exactly how she respond to that according to one of the emails. My last question do you agree that something created with a 3d printer in the minds of our Founding Fathers in the 18 century, do you agree that could be regulated or banned without creating any Second Amendment questions . I think there might be litigation coming on that, senator. Consistent with Judicial Independence pencils, shouldnt comment on a potential case like that. Thank you. I root out your answer ahead of time. I just wrote it, so you can see what i wrote. Thank you very much, mr. Chairman. Think you come mr. Chairman. I would like to introduce in the record an oped from the l. A. Times Editorial Board entitled can the Supreme Court confirmation process ever be repaired . A bipartisan letter for students at yale. Alumni and faculty, a letter of georgia secretaries of state fair in camp, a declaring ledger by mississippi governor. Could that be allowed . Thats good. Thank you, judge. There are several things i want to go over with you. One, i want to complement senator leahy and in this rega. He worked with senator grassley to get what has been previously committed confidential release to the public. Thats the way it works around here. You dont always get what you want, but you try to work with your colleagues and many times you can succeed. From the publics point of view, its got to work this way. You just cant do everything you want in a legislative body. There are rules, and its frustrating to be told in no on something youre passionate about, but i am often asked people wonder, are these hearings turning into a circus . I want to defend circuses. [laughter] circuses are entertaining, and you can take your children to them. [laughter] this hearing is neither entertaining nor appropriate for young people. Now, some of my colleagues, i respect greatly for trying to make a point. I dont know what that point is. I do know this if you want to be president , which i can understand that, its hard. And what you do will be the example others will follow. Back to the subject matter the morrison case. Was that about separation of powers . That was a separation of powers case. Okay. It was about a congressional statute, and the authority of the executive branch and how they interacted. Is that correct . Thats correct, and a very specific statutory scheme that was unprecedented in the judiciary involved in appointing the council. Apparently, kagan and scalia agreed. Kagan agreed with scalias dissent. Yes. She has called it one of the greatest ever written, and she added it gets better every year. I dont want to get into the habit of saying listen to a league in kagan, will hear it because shes a fine person. The situation we have before us for mr. Miller, thats not a separation of powers issue, is it . Are these different facts, mr. Mueller was the don michael. 23 Department Justice regulations. I dont want to talk specifically about current events, but i will fare back to what ive read about special council. Im not asking you to decide the case, just read the paper. You watch television . The special counsel statute in question doesnt exist anymore, does it. Been up and counsel does not exist any more, since 1999. Traditional special counsel i have written about is the ordinary way that outside investigations but is that an executive branch function . It that is ordinarily by the attorney general. Who is a matter of what . The executive branch. Last time i checked, thats not a separation of powers issue. Traditionally, as i have written, has been executive branch. The question is, if someone is appointed special counsel by the department of justice regulations, the authority over implementing those regulations and overseeing those regulation regulations. All i can say is that thats different. Legally, and factually, its different than the situation where you had a statute. Lets talk a little bit more about the laws regarding the president. Clinton v. Jones tells us that you can be president of the United States,e sued for conduct before your president , and when you invoke executive privilege, the court said no, wait a minute. You have to show up at a deposition because it happened before you were president. Is that correct . And eves civil suit, involving allegations a suit that involved activity before president clinton became president. It is pretty well understood through Supreme Court precedent that if you are president of the United States and you engage in conduct that allowed you to be sued before he got to be president , you cant avoid your day in court. On subside. The nixon holding said what . The nixon holding said that in the context of the specific regulations there, a criminal trial subpoena to the president for information, in that case the tapes, could be enforced. Notwithstanding the executive privilege that was recognized in that case, as rooted in article two of the constitution. So thats the law of land, as of this moment . United states versus nixon is the law of the land. Whether or not a president can be indicted while in office has been a discussion that has gone on for a very long time. Is that true . In the legal world . That is correct. The department of justice, for the last 45 years, has taken a consistent position to republican and democratic initiations that a sitting president may not be indicted while in office. The most thorough opinion on that is written by randy moss, who was head of president clintons office of Legal Counsel in 2000. He is now a district judge appointed by president obama on the District Court in d. C. If you give written on this topic as well, have a new . I have not written on the constitutionality. But talking about whether or not it would be wise to do this . I have made my thoughts known for congress to examine, because in the week of september 11th, i felt one of the Things Congress could look at is how to make the presidency more effective. I just want my democratic colleagues to remind you that when president clinton was being investigated you took the position that he is not above the law, but in terms of indicting a sitting president , it would be better for the country to wait. The person who echoed that the most, or at least effectively, i thought, from his point of view, was joe biden. So theres nothing new here, folks. When is a democratic president , they adopt the position that they are arguing against now. But thats nothing new in politics. Im sure we do the same thing. So, this man, judge kavanaugh, is not doing anything wrong by talking about this issue the way he talks about it. We are doing wrong is blaming concepts. To justify a vote thats going to be inevitable. You dont have to play these games to vote no. Just say you dont agree with his philosophy. You dont think hes qualified, but the thing that i hate the most is to take concepts and turn them around upside down to make people believe there is something wrong with you. Theres nothing wrong with you, the fault lies on our side. Most americans after this hearing will have a dimmer view of the senate, rightly so. I dont want anybody to believe that you stole anything. Did you steal anything from anybody while you are working at the white House Counsels question marks no. Did you know that anybody stole anything, or did you encourage them to steal anything . No. Did you use anything that was still in . No. So you can talk about mr. Maranda, and he deserves all the score you can heap on them. But i dont the public to believe that you did anything wrong, both because i dont believe he did. Its okay to vote no. Its not okay to take legal concept and flip them upside down. In that light, we are doing something wrong on the republican side when you have the exact same position when it was your turn. Roe v. Wade. You have heard of that case, right . I have, senator. [laughs] a lot of people like it, a lot of people dont. Its an emotional debate in the country. Is there anything in the constitution about a right to abortion . Is anything written in the document . Senator, the Supreme Court has recognized the right to abortion since the 1973 roe v. Wade case. It has reaffirmed it many times. But my question is, did they find a phrase in the constitution that said that the state cannot interfere with a womans right to choose until medical viability occurs . Is that in the constitution . The Supreme Court applying its principal. No its not, senator graham. If you will just follow me, i will let you talk. The point is, will you tell me, yes or no, is there anything in the document itself talking about limiting the states ability to protect the unborn before viability . Is there any phrase in the constitution about abortion . The Supreme Court has found under the liberty because, you are right that, specifically is there anything in that because talking about abortion question work the liberty clause refers to liberty the lesser matrix, the liberty doesnt refer to abortion. Heres the point one of the limits on this concept . What of the limits the ability of the court defined a number of rights that apply to particular situation . What are the checks and balances of people in your business if you can find five people who agree with you to affirm a right, whether the public likes it or not, based on this concept of a penumbra of rights . What are the outer limits to this . The Supreme Court in the case in the late 90s, Justice Kagan talked about this, the task of the Supreme Court uses to find unenumerated rights under the liberty clause of the due process clause of the 14th amendment. Their first two rights rooted in the history and tradition of the country. So as to prevent let me ask you this. Is there any right rooted in the history of traditions of the country were legislative bodies cannot intercede on behalf of the unborn customer is that part of her history because mark . So how did the court determined that it was. Stomach . The court applied the president stomach precedent that existed. Speak out when you talk about the history of the united state United States, the court has found that part of our history, the legislative bodies, not to have a say about protecting the unborn, medical liability. Would you agree with that or not . I dont think that is part of our history. So fill in the blank. What are the limits of people applying that concept to almost anything that you think to be liberty . That is the concern that some have expressed of the concept of unenumerated rights. Youve got one word that has opened up the ability for peopl people, you cant go there. Off the limits for a democratic process. Whether you agree with roe v. Wade or not, just think what could happen down the road if five people determined the word liberty means x. The only real liberty is a constitutional amendment. Do you agree with that . I am not trying to come down my comment on potential constitutional amendments. If we passed it tomorrow saying that congress can regulate abortions for medical liability, wouldnt that fly in the face of roe v. Wade . So the Supreme Court has said that a woman has a constitutional right so all of us could vote, as we have said, liberty means that the state has no interest year. The compelling interest for medical viability. That we could pass all the laws that we want, it doesnt matter. The only way that we could change that is if its requires twothirds of the senate, three