In room]. I understand the question then and the answer then and i understand the answer now and the question now to be 100 accurate. You were concerned about whether i was involved in the program that two other nominees had been involved in. And the report that senator feinstein produced, the Justice Department report, they showed that i wasnt. In other words, the program, crafting the program for the enhanced interrogation techniques for the detinees. Judge kavanaugh, thats not the question. Do you see me asking you whether you crafted the program . I didnt. I asked you about your involvement in the haynes then you went further asking then you went further. You violated the second rule to every witness. You answered more than i asked. I told the truth. You volunteered more information than i asked and you went further than you should have. In the three specific instances that i have given you, you clearly were involved in questions about rules governing detention of combatants. I understood the question and i understand it now and my answer about that program, i told the truth about that. The reports that have come out subsequently have shown that i told the truth about that. My name is not in those reports. For the 2005 signing statement, anymore staff Secretary Office and everything that went to the president s desk, everything that went to the president s desk with a few covert exceptions would have somehow crossed my desk on the way. So you asked, i said on a signing statement, it would have crossed my desk on the white. So would a speech draft on the iraq war. So would a speech those things would have crossed my desk prepared by others, not prepared by me but crossed my desk on the way to the president. You should arlen spector, you gave president bush advice on signing statements including identifying constitutional issues in legislation. Did you make any comments regarding the december 2005 statement on the mccain torture amendment including potential constitutional issues . I cant recall what i said. I do recall that there was a good deal of internal debate about that signing statement as you can imagine. There could be. I remember that it was controversial internally. And i remember that i thought and i cant remember all the ins and outs of who thought what, but i remember the counsel of the president was in charge of signing statements in terms of the final recommendation to the president. Just a few months later, you under oath told us you were not involved in any of the questions about the rules governing detention of combatants. Senator, again, at least i understood it then and understand it now to be referring to the program we were talking about that was very controversial that senator feinstein spent years trying to dig into. I was not read into that program. I told the truth about that. And let me go to another area of questioning. Thanks very much. In your dissent in garza versus hargan, you said the court wrote a new right for the United States detention to obtain immediate abortion on demand. Thereby barring any government efforts to expeditiously transfer the minors to the sponsors before they make that life decision. You argued that permitting the government additional time to find a sponsor for a young women did not impose an undue burden even though the governments conduct forced her to delay a decision by several weeks. Were talking about a young woman characterized as jane doe that found out she was pregnant after coming into the United States. She did not want to continue her pregnancy. She went through every step necessary to comply with texas stay law as well as steps forced on her by the federal government. She visited a Crisis Center and had an ultra sound for new purpose. In other words, this young woman complied with every legal requirement including texas state requirements, placed in front of her so she could move forward with her decision. A decision affecting her body and her life. Do you believe this was an abortion on demand . Senator, the garza case involved first and foremost a minor. Its important to emphasize it was a minor. Yes. So she had been shes in an immigration facility in the United States. Shes from another country. She does not speak english. Shes by herself. If she had been an adult, she would have a right to obtain the abortion immediately. As a minor, the government argued that it was proper or appropriate to transfer her quickly first to an immigration sponsor who is an immigration sponsor, you ask. It is a Family Member or friend who she would not be forced to talk to but could consult with if she wanted about the decision facing her. So we had to analyze this first as a minor and then for me the first question always what is the precedent. The precedent on point from the Supreme Court is there is no case on exact points, so you do what you do in all cases. You reason by analogy from the closest thing on point. What is the closest body of long point . The parental dissent decisions of the Supreme Court where they upheld parental concession over dissenters that thought that they would delay the procedure too long. Up to several weeks. Im getting to the point. Before you get to the point, youve just bypassed something. You just bypassed the judicial bypass, which she received from the state of texas when it came to parental consent. That already happened here. That is still stopping her. Im not. The government is arguing that placing her with an immigration sponsor would allow her, if she wished, to consult with someone about the decision. That is not the purpose of the state bypass procedure. I want to be clear about that. Judge, the clock is ticking. It is. 20week clock is ticking. She made the decision early in the pregnancy and all that i described to you, the click is ticking. Youre suggesting that she should have waited to have a sponsor appointed who she may or may not have consulted in making a decision . Im a judge. Im not making the policy decision. My job is to decide whether that policy is consistent with law. What do i do . I look at precedent. And the most analogous precedent is the parental consent precedent. From casey has this phrase, page 895. Minors benefit from consultation about abortion. A quote talking about consultation with parents. So youre adding a requirement here. Beyond the state of texas requirements that there be some sponsor chosen who may or may not be consulted for this decision . The clock is ticking on her pregnancy. Couple things, senator. You said you are adding. Im not adding. Im a judge. The policy is being made by others. Im deciding whether the policy is consistent with Supreme Court precedent. Theres two things to look at in this context, senator. First, is the government i goal reasonable in some way. They say we want the minor to have the opportunity to consult about the abortion. Well, the Supreme Court precedent specifically says, specifically says, that that is an appropriate objective. Second that was a state requirement . The second question is the delay. Your point. In the parental consent cases of the Supreme Court recognized that there could be some delay because of the parental consent procedures. In fact, justices marshall, brennan and blackmon dissented in cases because they thought the case was too long. I quoted that in my garza opinion and made clear that it had to happen quickly and i looked at the time of the pregnancy to make sure on safety. I talked about safety. I specifically say the government cannot use this as a ruse to somehow prevent the abortion. I spent a paragraph talking about she was in an undeniably difficult situation. So as i was saying to senator graham earlier, i tried to recognize the real world effects on her. Consider the circumstances. Shes a 17yearold, by herself in a foreign country, in a facility where shes detained and she has no one to talk to and shes pregnant. That is a difficult situation. I recognized and tried to understand that. As a judge, not the policy maker, i tried to understand whether the governments policy was consistent with the Supreme Courts precedence. I did the best i could. I said, some people disagree with those precedents and think those kinds of statutes should not be allowed. But i had precedent is not like a cafeteria where i can take this and not that. I had to take casey in completely. Casey reaffirmed roe i have some other questions. Please its an important question and a critical question. And i did my level best in an emergency posture. So i had two days 21 decision that you dissented from. I did the best to follow precedent and as i always try to do to be as careful as i can in following the precedent of the Supreme Court. Let me ask you a personal question. What is the dirtiest, hardest job youve ever had in your life. I worked construction when i was summer after i was 16 for a summer. 7 00 a. M. To 3 30 p. M. My dad dropped me off every morning at 7 00. 6 55. He wanted me to be early. And thats probably the one. I also, i should say, i had what one person, i guess, lawn business for many summers, business i cut a lot of lawns. Thats how i made some cash when i was i started that probably eighth grade. I cut my parents lawn but i cut a lot of lawns in the neighborhood and distributed flyers saying if you need your lawn cut, call me. Lawn cutting and the construction job. My dirtiest job i ever had was four summers working in a slaughter house. Yes. I always wanted to go back to college. Couldnt wait to get out of there. It was unbearable. It was dirty, hot. The things i did were unimaginable and i wouldnt start to repeat them. Then came a case before you called agri processer Company Versus nrlb. At least of a third of the workers, judge kavanaugh, in our nations slaughter houses are immigrants. It stands visits to iowa, illinois, delaware, you pick it, youll find a lot of immigrants doing thinks miserable, dirty, stinking, hot jobs. Many of them are undocumented. The work is low paid and dangerous. As the gao has noted, immigrants are reported not to report injuries on the judge. This case was a notorious Meat Packing Company owned by shalom rabaskin, that was convicted of 86 counts of fraud and Money Laundering in 2009. His 27year sentence recently was commuted by president trump. Agri processers had at the core of the Business Model exploitation of undocumented workers. Half of them were not authorized. Workers allege the company fostered a hostile workplace, environment that included 12hour shifts without overtime pay, exposure to dangerous chemicals, Sexual Harassment and child labor. A truck driver at agri processers brooklyn warehouse told reporters, we were treated like garbage. If we said anything, we got fired immediately. Judge kavanaugh, youve bent over backwards to take the companys side against these workers. In a 2008 d. C. Circuit case, your dissent argued that this companys workers should be prohibited from unionizing because they did not fit your definition of an employee. To reach this conclusion, you imported a definition of employee from a totally different statute. You ignored the plain language of the controlling statute, the National Labor relations act, which has a broad definition of employee as well as binding Supreme Court precedent. The majority in this case, and you were a dissenter, the majority noted their opinion stuck to the text of the National Labor relations act and the 1986 Immigration Reform and control act which did not amend the national lay boar relations act. They said your dissent, these other judges said, your dissent would abandon the text of the controlling statute and lead to an absurd result. The majority included one republican and one democratic appointed judge. Judge kavanaugh, you claim over and over again to be a textualist, to be carefully weighing every word of the statute. Why did you go out of your way to redefine employee and disadvantaged these exploited workers . Why didnt you stick to the plain language of the controlling statute and the binding Supreme Court precedent . Because the Supreme Court precedent compelled me to reach the result that i reached. Heres why, senator. Let me explain. The Supreme Court had a case in 1984 called the sheratan decision. And the sheratan decision considered the interaction of the National Labor relations law act and the Immigration Laws. And what the Supreme Court did in sheratan is had this question and said, at that time its permissible to consider an immigrant unlawfully in the country as an employee under the National Labor relations act. In part 2 b of the opinion, you have to read part 2 b, if you read that part of the opinion, the court then goes on to say and because the Immigration Laws do not prohibit employment of people unlawfully in the country and makes clear, the Supreme Court makes clear, this is when its being considered in congress in 84 and ends up in the 86 act, the Court Makes Clear as i read part 2 b and i think im correct on this, that if the Immigration Laws did prohibit employment of someone here unlawfully in the country, that would mean that they cant vote in the union elections. What i did there, its all about precede precedent. If you look at the dissenting opinion, i parsed this carefully. I went deep in this case. I pulled from the sheratan case, i asked for the marshall papers from the library to read all the memos that went back and for among the justices. I cited the oral argument to make sure what i was reading was clear. They were aware that the Immigration Law was about to be changed and they were aware of the interaction between the labor law and the Immigration Law. So i think i stand by what i wrote then and i think i correctly analyzed part 2 b. Now, senator i have to if it ends if the Supreme Courts sheratan opinion had ended at part 2 a, 100 would agree with you and my decision would have been different. If you read part 2 b you said you dont get to pick and choose what Supreme Court precedent you follow. The majority in the agri processers cause was following Supreme Court precedent. A 72 decision said that undocumented immigrants are employees under the National Labor relations act. I quote, since undocumented aliens are not among the few groups of workers expressly exempted by congress, they plainly come within the broad statutory definition of employees. Thats a part of the case. Thats part 2 a. Let me tell you about part two b. Everyone else that looked at this question, the Administrative Law judge, the National LaborRelations Board including republican appointees, two Appeals Court judges inincluding one republican appointee followed the precedent and came to the opposite conclusion that you did. I understand you may have preferred the sheratan dissent, but you failed to follow Supreme Court precedent. This was a case where the National Labor relations act included those that were undocumented, who could unionize to protect themselves in the workplace. You went out of your way to dissent all the way along and make sure they didnt in your view, they didnt have that right, that they didnt have that right to unionize. I very respectfully disagree, senator. The reason i disagree is that the Supreme Court did say that the immigrant was covered under the definition of nlra. If it ends there, im with you 100 . The Supreme Court says and we consider also in resolving this question the conflict between the National Labor relations act and the Immigration Laws and makes clear, as i read it, if the Immigration Laws had made employment of someone here in the country unlawfully, illegal, that would be prohibited in the case. I went back like i said. If you look at justice i quote the oral argument transcript from sheratan in my dissenting opinion. Look, i had no i have no agenda in any direction on im a judge. Im just trying to resolve the precedent let me close by saying this. Im just a judge, i just follow precedent. Gosh, weve heard that so often and i hope its the case. We know theres more to your job than that. I agree. The fact that you were a dissenter and everyone else saw this the other way should give us pause when you say im just following precedent. Respectfully, senator, that opinion, im proud of that opinion because i think it carefully details the law in that case. Im following the Supreme Court precedent. To your point that other judges disagree, there was a case i had about ten years ago or eight years ago called papanyo. A case where i ruled in favor of a criminal defendant on a restitution matter. I wrote the majority opinion. Every other court after its disagreed. Finalry got to the Supreme Court this year in the lagos case and they greed with our one opinion, the papanyo opinion. Just to point out, because other courts of appeals disagree doesnt necessarily mean we were necessarily wrong. The Supreme Court ultimately decides that. I understand your question. I appreciate them. Thank you. Senator cornyn. Senator lee will chair while i have another appointment. Senator . Thank you, mr. Chairman. Mr. Chairman, i was grateful were going to continue covering the confirmation hearing. Well take a quick oneminute break and leave it up in the corner there as we continue judge kavanaughs questioning. Be right back. Some unusual behind the scenes going on with regard to procedure in the senate. Senator schumer, the minority leader, protest ed a Committee Hearing going on while the senate is adjourned. It was created 100 years ago to get all the senators in the business for senate. By protesting, that meant that Mitch Mcconnell had to adjourn the senate. Just referenced by senator cornyn, very rare event. This confirmation hearing is continuing and well take you back to senator cornyns question. That was the practice. Well, until the aclu filed suit and unfortunately it was held to be unconstitutional and violation of the establishment clause. Im not going to ask for your opinions because this issue will likely come back before the court. Because i issued it to justice gorsuch, im going to mention it to you. The thing that is stuck in my crawl the last 18 years is the dissent written by chief Justice Rehnquist which takes exception to the majoritys decision saying that they distorted existing precedent. But he goes on to say, even more disturbing, that its holding is the tone of the courts opinion. It bristles with hostility to all things religious in public life. Northeaster holding or the tone or the opinion is faithful to the establishment clause when its recalled that George Washingtons that George Washington himself at the request of the very congress, which passed the bill of rights, proclaimed a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many and signals favors of the almighty god. Since i had you here, i thought i would mention that. Im not asking for your opinion since you will be called upon to decide cases involving the establishment clause in the future. Since we had that history together, i thought i would tell you it still sticks in my crawl. I understand, senator. We remember in certainly cases i lost. They still stick in my crawl too, senator. I just marvel that under the First Amendment that we can variety of voices can speak. Thats generally a good thing. But it can be about violence, sexism, it can be about almost anything but you cant speak about religion in a public forum. Theres been theres been cases from the Supreme Court i think in more recent years, cases like the Good News Club case, cases like the Trinity Lutheran case, cases like the town of greece case where the Supreme Court has recognized the importance of religious liberty in the United States and also recognized that religious speakers, religious people, religious speech is entitled to a space in the public square. Not to be discriminated against. I think the Trinity Lutheran case is an important one on this. The Good News Club case is an important case where an after School Program and a school gym, i think, or auditorium and religious group was excluded. So i think theres been some developments since then in terms of religious equality and religious liberty that are important. Those cases are difficult factually, but the principle youre espouses is reflected in more recent Supreme Court precedent. Ill conclude with this. As i understand the constitution, it requires a government to be neutral. And as chief Justice Rehnquist in this case, the government evidenced hostility to public speech in the public square. Thats one persons opinion. Again, im not asking you for any opinion with regard to the case that may come before the court. [protesting in background]. Mr. Chairman, i hope that time wont be subtracted from my 30 minutes. It wont be. Thank you. So judge kavanaugh, im intrigued by a comment that you made earlier about the role of precedent. We heard a lot about precedent. You alluded to this book that you and others other judges wrote with brian garner on the law of judicial precedent. I checked it out. Its 900 pages long. I havent read every page of it either. Its not meant to be read word for word. Its a treatise where you go to a section that might be on point or something. Let me ask you a more basic question and we can work our way into that. Should when people go to court, should they expect a different outcome if the judge was nominated by a republican from a court where the judge was nominated by a democrat . No. Thats an important principle of Judicial Independence and the judicial role. The judges umpire, chief Justice Roberts articulated and i talked about publicly many times is critical. When you go to a baseball game, the umpire is not wearing the uniform of one team or another. Thats a critical principle. It strikes me as an important point give the suggestion that one of the reasons people have objected to your nomination is, i believe, the quote was you have republican blood flowing in your veins. Strikes me as a strange and bizarre statement. Ive been a judge for 12 years, senator and im 307 opinions and very proud of that regard and been an independent judge for 12 years. Youre not a republican or democrat as a federal judge. You talked about the constitutional basis for a judges obligation to apply existing precedent. Could you expand on that more . Most people are under the impression this is a discretionary matter. You can cherry pick between what precedent you decide to follow and which ones you dont follow. Theres been a debate sometime about what are the origins of precedent, why you follow precedent. And as i see it, there are a number of reasons youd cite. Reliance, interest, partiality. All of those are not near policies in my view. As i see it, the system of precedent comes from article 3 itself. When article 3 refers to the judicial power shall by vested in one Supreme Court in such inferior courts as Congress Shall from time to time establish, to my mind, the phrase judicial power. You think about what does that entail. You look at the meaning at the time of judicial power and you look one source of that is federalist 78. That in federalist 78 is wellexplained this a judge makes decisions based on precedent. Precedent therefore as i read judicial power has constitutional origins and a constitutional basis in the text of the constitution. And i think youve touched on this as well. Judges unlike legislators, dont run for election. You dont have a platform. No. Vote for me, this is what ill do if im elected into office. One of the most important elements of limiting the Important Role of judges i think under the constitution is that youre required to decide a case on a case by case by case basis rather than issuing some sort of oracle saying henceforth, the law will be does, assuming you can get eight other judges to agree with you. Can you talk about the importance of deciding cases on a case by case basis . We add another 20 seconds. Thank you. Absolutely. Its important to understand and i think senator graham alluded to this as well, as judges you dont just issue policies or issue opinions out of the blue. You decide as article 3 says, cases an controversies. That means theres a process. Litigants come into the federal trial court, for example, and litigate against one another and theres a process there, a trial a Summary Judgment motion that a district judge render as decision. That comes up to the court of appeals in my case and briefing and oral argument. Theres a process. I like to say process protects you. Thats one of my things that i like to keep in mind. You go through a process to help make good decisions, deliberative process. Were focused on process. Having the oral argument, having the briefing and talking to your colleagues. You change your mind. Senator, youve been a judge, of course. You change your mind based on the comments of colleagues. That process is important. To your point about youre deciding that case. You write an opinion. Youre trying to resolve this case under the principles of precedents, the text of the law in question, the text of the statue in question and decide that case or controversy. Thats how judges build up a system of precedent over time, by deciding one case at a time and not trying to do more than they can or more than they should. [protest in background]. Judge, dont you think what youve described for us in deciding cases on a case by case basis has an Important Foundation and fairness to the litigants . The parties that come to your court . Because how would somebody feel if they know you have if you already announced in all cases that have to do with subject x, ive made up my mind, i dont care what the facts are. Isnt that unfair to the litigants . It is. It can be, senator. At least where an overbroad ruling may resolve things that people who are affected by it may have thought, well, i kind i was president part of that case. Why am i now affected in a particular way . One of the things i can say about how ive tried to write my opinions, the 300 opinions, im always concerned about [protesting in background]. Im always concerned about unintended consequences. Thats why i work through my drafts. Even a sloppy foot note or an ambiguous word or opinion, its true when drafting laws her, but if you dont youre concerned about unintended consequences, thats why its so important to be clear of the opinions and to be exactly precise and not to decide too much. [protesting in background]. Judge, let me ask you to tell us a little bit about september 11th, 2001. Where were you when you heard that the planes hit the World Trade Center in washington d. C. And another plane hit the pentagon here in washington. I remember new york, i should say. Yes, in the west wing when it hit the second tower. I remember that in the up stairs counsels office. With a couple other people in the counsels office. We were ushered downstairs and then told to get out and run out because there was fear, as we later learned, about flight 93. I dont know whether it was headed to the capitol or the white house or some other target, of course. The heros of flight 93 saved so many americans. Sacrifice. We still all celebrate it in the sense of celebrating their lives and their heroism for saving all of us here in washington. Ended up out in Lafayette Park with the rest of the staff and bewildered and changed america, changed the world, changed the presidency, changed congress. Changed the courts, all the issues that came before. A new kind of war as president bush described. An enemy that didnt wear uniforms and that would attack civilians. New kinds of laws had to be considered and congress had to work through that and president bush had to focus so intently, as ive said before. My remembrance is that september 12th his basic mentality is this will not happen again. Having traveled him from 2003 to 2006 everywhere as staff secretary and seeing hiccup close, i still think every day i was with him during those years, every morning when he got up. It was still september 12th, 2001. This will not happen again and see that focus. Of course, he had to do all the other things of the presidency and all the other legislative and regulatory and ceremonial aspects. He was so focused on that and im sure that has been true of the succeeding president s as well. The threat the threat still exists, of course. As we came to learn, Osama Bin Laden and alquaida was responsible for that attack and is now morphed to other organizations like isis and the like. But i want to ask you, you had to then sit in judgment later on in a case, the hamdan case, which you alluded to earlier where the defendant was Osama Bin Ladens personal bodyguard and driver. He was captured by u. S. Forces in afghanistan after 911 and detained in guantanamo bay. He subsequently went through a military tribunal. That case was appealed to your court. Just correct me if im wrong, but not withstanding the experience you and everybody you cared about having been through this terrible travesty of 911, you ruled in favor of Osama Bin Ladens body guard and driver, correct . That is correct. I wrote the majority opinion. How could you do that . How could you possibly do that . The rule of law applies to all who come before the courts of the United States. Even in enemy combatant . Equal justice under law. Everyone is entitled even a noncitizen . Yes. Noncitizens that are tried in u. S. Courts, of course, have the constitutional rights. Really my model on that, judicial model, for thinking about Something Like that, because i thought about what youre asking about. Justice jackson, of course, robert jackson, who had been Franklin Roosevelts attorney general. He was in the matsu case, even though that was one of roosevelts policies, Justin Jacksons opinion now overruled but Justin Jackson dissented and ruled against the roosevelt policy. Justices clark and burton, two appointees of president truman are the two deciding votes in youngstown steel. They were appointees of president truman. Its wartime against korea. They get to the Supreme Court. Theyre the deciding votes in the youngstown steel case, which was an extraordinary moment. Your role of a judge is about the law. Thats distinct from policy and our judiciary depends on having people in it. We are fortunate to have a wonderful federal judiciary. People in it that understand the difference between law and pomsy and willing to apply principles of equal justice under law to anyone who comes before the court even the most unpopular possible defendant is still entitled to due process. Its hard to me to imagine a more unpopular defendant than Osama Bin Ladens driver. And personal body guard. So i find the suggestion that somehow youre prejudiced against the small guy in favor of the big guy or that you are picking and choosing what youre going to render judgment in favor of based on something other than the rule of law, i think this answers that question conclusively for me. The fact that you could separate yourself from the emotional involvement you had along with so many people you worked closely with in the white house on september the 11th and you could then as a judge after you put on the black robe and take the oaths of office, you could render a judgment in favor of Osama Bin Ladens body guard and driver because you applied the law equally to everybody that comes to your court. Sometimes the let me allude to something senator sass was eloquently speaking about in terms of the separation of powers. Very important aspect of our constitutional system and one that you dealt with often on the d. C. Court of appeals. That has to do with what ive read some judges talk about some constitutional scholars talk about a conversation between the branches. When the d. C. Circuit court or the Supreme Court decides a case, they finally decide that case. But they dont finally decide what the policy is for the United States or the American People. Correct . Thats correct. One of the important things that judges can do is adhere the laws passed by congress and then in writing the opinion make clear, and ive done this before and a lot of my colleagues do this, is that perhaps the statute needs updating. If it does, that is the role of congress to update the statute or if theres sometime a hole in a statute or something that seems unintended in a statute and to Alert Congress to that. Chief judge katzman of the second circuit, i served with him on the Judicial BranchCommittee Appointed by the chief justice. Hes written a back about statutory interpretation and also a leader of a project to make sure that congress is alerted to potential statutory issues that look like they might have been things that perhaps congress would not have intended or at least congress would want brought to its attention so they could fix. And [protesting in background]. That project has been very successful. I think its one even without that project, how you write your opinions is important. We dont update the statutes. You update the statutes. Its good for us to write our opinions in a way that points out potential issues that Congress Might want to be aware of. Thats part of the conversation between the two co equal branches of government . Absolutely. Its an important dialogue to have between congress and the judiciary and the back and forth is very important on that front. I think thats one thing im thinking about in my opinions, you write the laws. If the law looks like theres some issue with it, some flaw or something that might be an unintended consequence in the opinion, you can identify it. That can be something that congress can turn its attention to sometimes. Because staff im well aware of statutory drafting is a difficult process. Its something that judges need to be more aware of, how difficult the legislating process is even if youre doing it as one person, it would be difficult, but then youre doing it as a collective body and then doing it with the house and with the president involved. Theres a lot of people in it. And its hard to have with all the compromises inherent in that, hard to have crystal clarity on every possible topic. So as judges, number 1, we have to recognize the process that you go through as legislators, adhere to the compromises that are made, the text as written and also when we write our opinions when theres something that is not working out, its appropriate for judges to point that out in their opinions. And of course, even if its the constitutional basis for your decision, that can be changed by constitutional amendment, correct . Thats correct as well. The framers did not think the constitution was perfect by any stretch. They knew it had imperfections for starters. The original constitution didnt have the bill of rights. The first ten amendments. There was a lot of discussion at the ratifying conventions about having a bill of rights. That was quickly done in the First Congress in new york in 1789, of course, by James Madison taking the lead on that. But so too, they did not think it was perfect to have an amendment process that specified in article 5 of the constitution. That amendment process was intended to be used. Weve seen it used to correct structural issues, the 12th amendment on president ial elections, the 17th amendment as you know well on senate elections, the 22nd amendment which limited president s to two terms. The 25th amendment, which corrected some issues with respect to vice presidency. And so too of course, the 13th, 14th and 15th amendments. The most important amendments in the constitution in many respects because it brought the promise of racial equality that had been denied at the time of the original constitution in the text of the constitution. So the job of the people, which is the congress and the state legislatures is to amend the constitution. Its not the job of judges to to that on our own. Obviously thats a basic divide of constitutional responsibility that is set forthright in the text of article 5 of the constitution. I cant remember who said it. I think Justice Jackson perhaps that said that the Supreme Court is always right is not always right because its final but its final so its right. I thought the more i got into that the more i disagreed with that. Its a conversation between the branches. If the American People believe as a constitutional matter the way the constitution is being interpreted, its within our power as the American People to change our own constitution by amendment. Theres provisions in the constitution itself to do that. Its hard and should be hard, but ultimately the authority that weddell we delegate to the government is not dictated from down high from a marble palace or Something Like that here in washington. Its ultimately our government, our responsibility, our authority that provides legitimacy to the government itself. You agree with that . I agree. Of course, with that, senator, the people we the people form the constitution of the United States and the sovereignty the people are the ultimate authority. Youre right about Justice Jacksons line. I think its a clever line. But ultimately i agree with you. I have always had a little bit of a problem with that line. Were infallible because were final. No. Both parts of that are wrong in some sense. I never want to think of the court as infallible. I never want to think of it necessarily in the way youre describing either. The people always have an ability to correct through the amendment process. The amendment process is hard. Hasnt been used as much in recent decades. Of course, at the beginning of the country, the amendments were critical. Dread scott, of course, the awful example of just a horrific Supreme Court decision that is then corrected in part at least on paper in the 14th amendment, 13th, 14th amendment. Thats an important example of the probably the best example of the point youre making about the people being able to respond to horrific decision of the Supreme Court. In fairness to Justice Jackson, maybe he was thinking as i originally thought about the expression as being binding on lower court judges. Trial judges, Appellate Court judges and the Supreme Court does have the final word in that food chain of the judiciary. But not in terms of the fundamental authority of the American People on what laws should govern them. I think thats right. Justice jackson is one of our greatest. To question anything, whether his matsu dissent or youngstown or Justice Jackson wrote some of the greatest opinions and the example of Judicial Independence as well. On the one line, i take your point. Let me just ask you one last question. We talked a lot about the role of precedent and senator feinstein talked about starry decisis. Cases that havent been decided for future cases. On occasion, the Supreme Court has decided that its decisions were just wrong and chosen to overrule those previous decisions. Im thinking of clesse versus ferguson, a scar on our body politic that said that separate but equal educational facilities met the constitutional requirement of the 14th amendment. Can you talk about the extraordinary circumstance under which the Supreme Court would revisit a precedent . Brown versus texas board of education overturned plessy. It was wrong on the day it was decided. It was inconsistent with the text and meaning of the 14th amendment, which guaranteed equal protection. And the Supreme Court in the shroud versus West Virginia case said what is this amendment but that the law shall be the same for the black and the white . And the Supreme Court unfortunately backtracked from that clear principle in the plessy decision and a horrific decision, which allowed separate by equal. Brown versus board corrected that in 1954, of course. Corrected it on paper. Were still seeking to achieve racial equality. The long march is not over. Brown versus board as i said publicly many times before, the single greatest moment in Supreme Court history by in so many ways, the uminity that chief Justice Warren had, the fact that it understood the real world consequences of the segregation on the African American students that were segregated into other schools and stamped with a badge of inferiority, that moment in brown versus board of education is so critical to remember and the opinion is so inspirational. Its a relatively short within. But its very powerful, very focused on the text of the equal protection clause and correcting that awful precedent of plessy versus ferguson. A great example of leadership. The last point on process. They were they knew they were growing to face popular backlash. They knew it but still did it. That shows independence and fortitude. They also had reargument, which is a good they had argument originally and decided theres a lot going on and maybe not everybody is seeing at this time same way of the justices and had a reargument, which is a good lesson on process protecting us and keep working at it and working at it and see the team of nine that i mentioned yesterday and mentioned today, keep working at it as a team of nine. They came out unanimous, chief Justice Warren lead the court in that decision. That was a great moment, the greatest moment in Supreme Court history. Thank you, judge. Thank you. I awarded two additional minutes to senator cornyn because he was interrupted five times. Senator whitehouse is next. Good afternoon. You good for another half hour . Im good. In my office you told me that you could provide no assurance to me that you would uphold a statute requiring Insurance Companies to provide coverage for preexisting medical conditions. Is that still true here in public . Well, i think, senator, its important to understand the principle at play here. The principle we talked a lot about that. Is the statement that you made, have i recited it accurately, that senator, judges like to explain their decisions i get to ask the questions. Usually you ask the questions because youre the appellate judge. Is it still true you can give no assurance that you would uphold a statute requiring Insurance Companies to recover preexisting medical conditions . So to prepare for this moment, i went back and read i really would like you to be as careful with your time because i have a limited amount of time with you. The quicker you can get to the answer, its it could be as simple as yes or no. But i can enhance your understanding of my answer if i explain it. I really just want your answer on the record. Im capable of understanding it on my own. Well, then everyone to understand my answer. So theres nominee precedent of how justices and nominees in my position have answered in the past. Ill be succinct if i can. All eight youve said this in the hearing. People listening and interested have actually already heard you say this. I think its important. So i say it again then. I want to underscore it. All eight justices have said its inconsistent with Judicial Independence to provide cases or answers on cases that could come before us. Justice ginsberg, justin kagan talking about no thumbs up or down. I went back. Judge Thurgood Marshall was asked what do you think about miranda got it. Everybody else does it and your answer is no. And the reason is rooted in judicial precedence. So my respect for judicial thank you. Let me go on to another subject, which is executive privilege. Executive privilege is a principle that is founded in the constitution and the separation of powers, correct . The Supreme Court so ruled in the United States versus Richard Nixon case. So that was the first the key issue in the United States its all right. I need the answer to the question. You answered it. The source is important. As a privilege, it needs to be asserted. Does it not . Thats true of privileges generally . I dont know where this is going. Straightforward question. Dont privileges need to be asserted in order to apply . Privileges are recognized. When theyre asserted. As a general proposition fair enough. Im asking the Attorney Client privilege yeah. And who asserts executive privilege . Ordinarily, that is a complicated question, senator. That is who does it come back to . Who asserts executive privilege. Depends what youre talking about. What kind of executive branch document, it depends. In my experience ultimately its the president. Theres not as much precedent on that. Theres some. The Supreme Court, this was the Supreme Court in the United States versus Richard Nixon isnt it fair to say that executive privilege belongs to the president of the United States, the chief executive. And it can also belong to the former president. Thats one caveat on that. Fair caveat. Is t well, of course, because under the precedent United States versus Richard Nixon said two thipgs, one, executive privilege is constitutionally rooted. Prosecutor argued there was no such thing as executive privilege and the Supreme Court rejected that argument and held executive privilege is rooted in separation of power and article two im asking doesnt have much to do with you, it goes back to a point we were talking about earlier in the hearing, which is that we have received hundreds and hundreds of pages of documents of your record that look like this. They both Say Committee confidential across them at angle and across