Crisis. So we are led to believe. Apparently resolved. Back and forth we go. What was this all about . You saw this this morning. A senator booker spoke up and said that that testimony in question, with judge kavanaugh, probably about 8 30 or 9 00 last night. We did not know what emails he was talking about. A committee can see the documents, but they werent available for public release. Hey, if you are going to question about this, he then went and had a quiet conversation with senator booker. He actually the two of them shook hands before he walked away. Working through some gel, so this morning, he said im going to release these at the very risk of being expelled from the senate. It got a lot of folks attention. He was cautioned by others on the committee about doing that, and not long after that, he did release the documents. We reached out to you say were these the documents that he was negotiating with . Is he really making a point by violating senate rules or policy by releasing them . They would not get back to me, then staffers here on the Judiciary Committee told a number of us reporters, they said they had been cleared by 4 00 a. M. , there were a number of senators who had been notified, including senator booker. That raises the question about his speech with the release of the documents. So again, i went back to his staff and said we need to know about the timing of when he knew these documents were already okay for public release. They wouldnt get back to us about the specific timing, but he is the man with a president ial privilege with the result president bush 43. He said we cleared them shortly after senator bookers staff asked us to. We were surprised to learn about this this morning because we had already told him that he could use them publicly. We have said yes to every request made to make documents public. So, we tracked him down and asked him when he knew that the documents were okay for release. Heres what he said. All right, thank you very much. Im sorry, i think we are going to go back to the hearing right now. Brett kavanaugh, richard blumenthal, and on and on we go. This is the final day. So far, he has held up very well. Do you want to let us know who they are . Who the team is here . These are a variety of teams that i have coached. I started coaching many years ago, and some of these girls are as old as tenth grade now. So they are older than my daughters. I guess, four years ago. So the oldest girl, carolina, abigail. Tenth graders. Madison, ninth grader. The girls over here. These are my two, of course. And keegan, coco, anna, quinn. Sophie. They are all here. And so lets see. She is going into fifth grade, margaret is and seven, coco is in fifth. Anna is in seventh. Shawnee is in seventh. And sophie is in seven. So i think i got it all right. [applause] well, thank you. They are all awesome players. They really are. They are tough as nails. Right, caroline . Caroline monahan, no one tougher. There goes my line of questioning. Thank you all for coming here. Let me ask a variation of the question that we asked a few minutes ago. He asked you what Supreme Court decisions over the years were decided wrongly. Now you answered, youve decided over the past several years, 307 cases, i believe on the circuit court. Were there any that you look back on and say i just didnt get it right . Or this one hasnt held up well over time . And i know thats a difficult question. I mean, as politicians, thats a tough thing for us to answer. I would be glad to tell you a number of cases where the senator got it wrong. I will reserve my time for a rebuttal. Senator, i will point out, where i reconsidered something with one case, the National Security case that i had. One of the questions in that case was what did warm me in . I referenced it in a prior case as being a limited solely to the international period and spent after reflection, actually after the deputy general for president obama argued, he planted a seed in me that i interpreted it too narrowly. Thats included not Just International law, but u. S. Historical practice. And i went back and really thought about that. He made a compelling case, and i went back and have dug deeper, studied it. Ultimately concluded he was right. What he had said, and i referenced that in my subsequent opinion, based on the arguments, i had gone back. It just like a replay official. I made the call in the original case, but went back and looked at it again carefully, studied it, and in fact concluded that he was right. So that was one example where and one of my opinions, pointed out that in a previous decision, i had under interpreted the scope of one statute. Going a little bit further, which ones where the most difficult . And how did you deal with those . Senator , i think what juste kennedy used to say in response to that question is something that always comes into my head when he was asked what is the hardest case . What is the most difficult case . He would always say the one i am working on right now. And i think there is something to that. Do you want to give it your all. Focus on the case that youre working on at that moment. There are of course more responses to your question. What they said is correct, but perhaps more directly responsive to your question. I have course think National Security cases are quite difficult. And quite important because you know the significance of them. But so too, every case has an effect on real people in the real world. So i want to give every single case, give it my all. I dont treat any case as second tier. Everyone is the most important. Thats why i think Justice Kennedys comment really does resonate with me and point out something. In that particular case, that is the most important case they will ever have. And it is important. And i treated as the most important case for me at that moment in time while i am deciding. Can you talk briefly a little bit about the process that you have undergone in the appellate court. It would be a little bit different at this level. When a case comes before you, sit down with your clerks, im sure. Assign research to them. How do they frequently work with the other clerks . Compare notes, do you do that with the other judges . How does that work and how might it be different with the job that you are pulling for . I think there are a lot of similarities to the Supreme Court in terms of the process. For my time, my experience there, seeing how it works ther there. In basic terms, what i do is i read the briefs very carefully. I have my clerks prepare binders, many, many binders of all the cases i need to read. At the larger articles and treatises. I go back and see if there are any historical points. I will talk about it with the clerks. I will have one clerk who was handling it, but sometimes talk about it with all the clerks, about my tentative use. The judges do not talk about the case ahead of time with each other. And the reason for that is we each want to come into the oral argument, having formed our own tentative approaches and questions and not having been influenced by well, this is what the other judge things, so that will subtly influence you, but if we come in with three independent perspectives, the practices, that will help us reach a more informed decision. Each of us will be more prepare prepared. And we have learned from the lawyers, but also from each other, the questions, similar to the way that this process works. You hear about other senators. Thats marks thoughts for you to ask questions. So too for the judges. Then we conference right after the oral argument. We give our tentative use, we debate and discuss, and it is very collegial. There is a lot of fluidity. It is not here is my position and thats it. For 12 years, i have never been in a single conference where any judge has said anything like that. Heres what i am thinking. We go around and go interns, we discuss it, reach a tentative resolution. Then we write it up. One judge is assigned to write the decision, that is an intense process for me and i think for all judges. Draft after draft, and i have talked about that to get it exactly right. I wanted to be clear and consistent. I want the losing party to think they have gotten a fair shake. I want to be as clear as possible. Discipline of writing sometimes convinces you that you have gotten it wrong when you first were thinking about it. Sometimes you change 180 sometimes. You shift your views, but the writing is such a discipline. The whole thing is a process with the three judges or nine on the Supreme Court. That is designed to make sure you get it right. So the collective decisionmaking process combined with the discipline of preparing and oral arguments, the discipline of writing it outcomes thats why judges when they come here are very reluctant, when they get a hypothetical, to just give a oneoff answer. Process protects us as judges. The people who are affected by our decisions. We love the process because we are used to process, and it helps us make better, more informed decisions. Thank you. Let me talk a little bit about what i touched on yesterday. Obviously, the independents in the judiciary, was our issue is here. Most important questions i think you have been asked her about that. Senator coons and i, along with a few others, we travel to Southern Africa a few months ago. We met there with the Constitutional Court of south africa. And at a time when just a few weeks before, or months before, they had rules against the sitting president , a few other things. But rendered a decision against the president of the country, the executive, that allowed the parliament to go in and remove it. And we talked about that. And they marveled how this country, this country of south africa had such a court that understood their role and how important it was to be completely independent of the executive. One of the justices put it, well, we cant allow the executive to climb over the lectern. That was an image that is apropos here as well. There have to be some limits to executive power. Where the head of the executive, the present, in our case, cannot climb over the lectern, and in many cases, looking just north to zimbabwe, where for the past 37 years, Robert Mcgaughey had a climbed over enough to put judges in place. Whatever he wanted. The genius of our system, our separation of powers and the separation of powers, there has to be constraints. You mentioned constraints, some of them yesterday, what kind of constraints the president has. Still, the president has immense powers. Largely because we have conceded too much from the Article One Branch to the article two branch. But when we talk about president ial power now, i was struck by a conversation you had yesterday with senator feinstein. I wanted to explore it a bit. You mentioned as a point of pride, and i think it is a point of pride, that you have ruled in the case, after 9 11, this is one of the drivers for usama bin laden. It was an extremely unpopular decision that wanted to protect his constitutional rights. And for ensuring that here is something unpopular. We cant protect his rights. Yet, when you were asked why you feel how you do know, on the independent counseling statute, you feel differently than you did in the 1990s. And you mentioned it to senator feingold that you feel differently because of 9 11. And that the president needs to be given more reign, i guess, to focus on National Security issues. I am trying to square that. I think that your explanation of how you ruled this case is admirable. Im not sure about your explanation with regard to giving the president more leash or more or authority because of 9 11 squares with that. Can you shed some light. That was simply a proposal in 2009 when president obama was coming into office, that for congress to consider. But there would be pros and cons if congress to consider Something Like that. It wasnt immunity. It was simply the timing of litigation, the clinton versus jones scenario, for example. And it was something, an idea based on my experience. Congress would of course consider the pros and cons. No one is above the law in the United States constitution in the United States government. There is a question, and it is also woven right into the text of the constitution. There is a question about timing for members of the military, for example. That is why we have deferral for them. Not a constitutional position. I really want to emphasize that, but that was not a position of what i thought was required by the constitution, rather something to be studied as Congress Studies things all the time to ensure the effective operation of the government. On your point about homdan, some of the greatest moments have been judicial independence, moments of political crisis, the case where we were at war with korea. Hes the steel mills, wellintentioned. Well intention to serve the war effort, but the courses it is unlawful. Rules against president truman. We talked a lot about the United States versus Richard Nixon case, the unanimous decision, chief justice burger, who had been appointed. It was a moment where the president of the United States was ruled against by the Supreme Court, including two of his appointees. The hamdan case before speeds came back to me, justice kennedy, and 2008, ruling against president bush. In a wartime case. And so to my hamdan case, i do look at that as a case where the rule of law protects all who come into court, regardless of who you are. No one is above the law. The president is subject to many legal restraints in terms of the official capacity, the war effort, and i think my decisions have shown that independence in a variety of areas. Thank you. Let me shift gears in my final couple of minutes to technology. We struggle here in congress with striking abounds, obviously between security and and freedom, between innovation and privacy. We just had the facebook hearings in this room along with the committee. Question to Mark Zuckerberg these issues. A latenight comic that night commented that with all of us questioning him out there, at least five of us, our password for our email is password. We were not as nimble up here in dealing with a lot of these issues. But the same applies to the court. How does the court to how will the court, how would you as a Supreme Court justice, deal with these issues . Would you describe yourself as technologically literate . I know youve dealt with these issues on the d. C. Circuit, but balancing privacy and innovation and security and freedom, this is going to make up a big chunk of what the Supreme Court does. Over the coming months and years. Senator, i do think that Technological Developments are going to be a huge issue for the Supreme Court over the next generation. It chief Justice Roberts has been writing as some of the key opinions and the carpenter case most recently. Very important decision before that. You see how this would not necessarily have been protected at the time of his 2005 hearing, how he has focused and let the the court and making sure that the amendment keeps abreast of the technical logical developments. It is very clear. Specifically, what impacts as it had on the fourth and the First Amendment . I think that this case explains that once upon a time, if a piece of information of yours ended up in the hands of a third party and the government got a third party, that really wasnt any effect on your privacy. But now, when all of our data is in the hands of the business, they third party, and the government obtains all your data, all your emails, all your texts, your financial transactions, your whole life is in the hands of a data company, your privacy is very well affected. And that is the importance, i think, of the carpenter decision, that it recognizes that change and understanding of our understandings of privacy, and i think going forward, that is going to be a critical issue. One of the cases i did write an opinion on, gps surveillance, putting a gps tracker on your car, i wrote an opinion that putting a gps tracker on your car was an invasion. New technology was an invasion of your property. [yelling] so it was something that the Supreme Court, and opinion by Justice Scalia, adopted that approach to recognizing the surveillance. But i think going forward, these are backward looking hearings, but the questions that you asked, that is a very important one about the change in the amendment to the doctor not doctrine, but the change in technology. As we apply the doctrine going forward. And our conception of speech will have to take account of the technical logical developments as well. Whats is an independent judiciary meeting, in terms of personal, religious beliefs . Have you known good judges who were democrats, republicans . Do you see a difference . Are they viewed that way . What about catholic or mormon or muslim . Or atheist . What should be our approach to judiciary in that sense . Well, i think senator, all judges are independent. We dont sit in separate caucus rooms. We dont sit on sides of an aisle. We are not republican judges are democratic judges. We are independent United States judges. And so to too with respect to religious beliefs, we are all equally american, no matter what religion we are, if we have no religion at all. So too judges who are all equal judges, no matter what religion we are. We see that in the text of the constitution, that no religious text shall be imposed as a qualification. Senator blumenthal. Thanks, mr. Chairman. Good afternoon, your honor. Welcome to your team. I want to first of all tie up a couple of loose ends from yesterday. I asked you yesterday whether during your service in the bush administration, you took the position that not all legal scholars believe roe v. Wade is settled law, and of the Supreme Court, could overrule it. You said in fact that the Supreme Court could, and you declined it to say whether you would commit to saying that you would not vote to overturn roe v. Wade. I believe, thanks to that exchange, that an email has now been made public, in which you took exactly that position. And you argued in that email that roe can be overturned. My question to you is whether during that break, did anyone suggest to you that i would ask about this email . I think we took a break before asked you my question. Did anyone ask you did anyone suggest to you that i might ask you about this email during the break . Just now . No, yesterday. I am not remembering. I am not remembering one way or another. I am not remembering. Did anyone show you this email during the session yesterday . I would have to check. I dont remember. I have had these emails, i think. And this one before testifying. I am not going to remember, senator. But i do know that that email does refer to whats my impression of what legal scholars think. It was if you dont remember, whether someone showed it to you or not, i want to move on to another area. You were asked yesterday by senator harris, as to whether you have certain conversations about the special counsel investigation, with anyone outside of the group of judges on the d. C. Circuit. At that point, your answer was vague, and it was again this morning, when senator hatch asked you about it. So i want to ask you very specifically, have you discussed the special counsel investigation with anyone outside of the group of judges on the d. C. Circuit. I have had no inappropriate discussions with anyone. Have you had any discussions with anyone . Appropriate or inappropriate . Have you ever talked about the special counsel investigation with anyone outside the if you are Walking Around in america, it is coming up, senator. So people discuss it, but in terms of let me just finish my thought. Ive never suggested anything about my views about anything, commitments, foreshadowing, no inappropriate discussions. Of course, first of all, let me tell you a few contexts. Our courthouse has a lot of activity going on in it. There were a lot of people ther there. Those are discussions that will let me be more specific so that we can sort of hone in on what my concern is. Have you ever talk to anybody in the white house about the special investigation . I have had no in conversations with anyone in the white house. I guess i just want to make sure that im understanding what your question is going for. I have at no issues where i have had discussed my forecasts but have you ever talked about the special counsel investigation with don mcgann, who is behind you, or with anyone else in the white house . That is a simple yes or no. I am not remembering anything like that. Of course, i am preparing. Those are moot court sessio. Well, what discussions have you had about special counsel with people in the white house . I have not had discussions if i am understanding your question correctly, i have not had such discussions. I want to understand. Its Pretty Simple english. Have you talked about the special counsel with anyone in the white house . Anybody who works for the president of the United States . You just rephrase the question. That was about mr. Mueller this time. Previously, it was about the investigation. If i am understanding the question correctly, no discussions of the kind you are asking. So you are saying no, you havent talk to anyone in the white house about Robert Mueller or the special counsel investigation. You change the question again, senator. Of course, i know mr. Mueller, personally, from my experience in the dash i havent seen him in a long time. But i knew him when we were together in the bush administration. But i have had no discussions of the kind that i think you are asking me about. Well, i am asking about the kind you are thinking about. Not myself. Well, i havent had any discussions of the kind. [laughs] i am going to take that as no, which you are giving under oath. We can put aside the humor for a moment. Im not trying to be humorous. Im trying to be accurate. For example, if someone says your courthouse i am talking about discussions with anybody who works for the president of the United States in the white house about the special counsel. So far, frankly, your answer has been ambiguous. I dont think it has been ambiguous. You have dodged the question. It is the same question again and again, and i am going to move on because i have other ground to cover. Have you had conversations about the investigation with anyone at the firm . No, i dont remember anything like that. Are you acquainted with anyone at that firm . At mcnally east to work there, and i now understand that. Have you ever talk to him about the special counsel investigation . No. Are you acquainted with market . I am not. Are you acquainted with anyone else at the castle was law firm . I dont think so. I did not know that senator lieberman worked there a few years ago before this. But that is the kind of thing that i was worried about when i was talking with the senator last night. I am pretty confident the answer is no. We talked about the independence of the judiciary. And you have spoken compellingly about the importance of the judiciary, and i couldnt agree more. I think the heroes of this era will be the judiciary and our free press. I want to talk to you about President Trumps attack on the judiciary. Planes, craven, and repeated. And i want to speak with you, a couple of those attacks, i have a partial quotation of them. A tweet attacking the judiciary, but the one that i want to say to you is from july 13th 2013. When he said of Justice Ruth BaderGinsburg Justice Ginsburg of the United StatesSupreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot. Resign november 10th, 2013, again, speaking about Justice Ginsburg, Supreme CourtJustice Ruth Bader ginsburg was going to apologize to me for her misconduct. Big mistake. By an incompetent judge. Do you believe that Justice Ginsburg has embarrassed us all . Senator, i have course have spoken about all of the justices individually during the course of this hearing. If i may interrupt, and i say this with all due respect, this is a question where less is more in the answer. Do you think Justice Ginsburg has embarrassed us all . Senator, i am not going to get drawn into a political controversy. I am not going to get in within three zip codes of a political controversy here. This is not political. This is about Justice Ginsburg. Do you believe that her minds shop . Senator, you are asking me after having read this, youre asking me to comment on something another person said, and i am not going to do that. I have spoken about my do you believe in confidence . I have spoken about my respect and appreciation for the justices on the court. The honor it would be if i were to be confirmed it to be part of that team of nine, with those eight people, all of whom i know and respect. I know that they are all dedicated Public Servants who have given a great deal to this country. And so, i have made that clear. Do you believe that a judge it should attacked based on his heritage . That the president of the United States attacked judge gonzalo curiel, saying that the judge the judge who happened to we believe, mexican do you believe that judges should be attacked based on their heritage . Again, i am not going to comment. With all due respect, you talked about your heroes who have the grid and backbone to stand up and speak out. We are talking about an independent judiciary. My colleagues have raised at this point. I may just to say to you, as i have said to judge neil gorsuch, and now just as neil gorsuch, that the judiciary, and the nominees like yourself, have an obligation to stand up. And he said that these attacks are disheartening and demoralizing. Do you agree . I am not sure of the circumstances, but the way we stand up is by deciding cases and controversies independently without fear or favor. Beyond that, we follow the canons in the leadership with chief Justice Roberts, who was a superb leader in terms of maintaining the independence. Saying well clear let me ask you Something Else on about the intersection of President Trump and yourself. On the night of the announcement of your nomination, you are at t the white house. Yes. And you chose to begin your speech introducing yourself to the American People by saying no president has ever consulted more widely or talked with more people from more backgrounds to seek inputs about a Supreme Court nomination. What was the factual basis for that . I did think about that. Those were my words. Senator harris asked me about that last night. The president , and this is trumpet. We were there, my family was there, he and mrs. Trump were very gracious. I was very impressed with during the 12day period between Justice Kennedys announcement of his retirement, and the announcement of my nomination, i was impressed as a citizen, as a judge, with the thoroughness of the process. I did look into your point directly and thought about looked into comparing what i knew about past processes. Made that comment. You looked into past appointments. Did you talk to president clinton about how many people he looked into before nominating Justice Ginsburg it . President clinton, i do recall, i talked to a lot of people as well. I indicated that is why he talked to just about everybody in washington, didnt he . President trump talked to a lot of people also. I mentioned president clinton specifically, as an indication of someone who likewise consulted very widely, as i recall. You didnt have any factual basis, and a record, any research at the time of that statement, did you . I did, actually look into it as best as i could, thinking about the Technological Developments. I do think about it very carefully. He talked to an enormous number of people, based on my understanding, in those 12 days. I want to talk to you now about realworld consequences. Impact in the real world on real people of the decisions that courts make. We were talking yesterday about the statement that you made. I think we have it here. Under the constitution, essentially, that statement says to me a president cannot deem it to be unconstitutional, even if the court has held or would hold its constitutional. Now, you do state yesterday, when we talked, that your view was compelled by hechler versus cheney. I disagree. Nothing in hechler suggests that the present can essentially nullify, simply deem a law, unilaterally, unconstitutional, based on his personal view of the law and constitutionality. So hechler stands for the principle that courts will generally not secondguess the executive branchs decision on how to you use enforcement resources like i did or as attorney general of my state of connecticut. Know where it says that chief executives are free effectively to nullify statutes that have been upheld by the courts. But i want to go to the real world impact. Clearly, hechler doesnt say that there are no limits, but for the sake of realworld impact, i think there must be impact. And one of them affects the Affordable Care act. And the protections it provides to millions of americans, about 13 million americans, including 500,000 in connecticut, who suffer from diabetes, high blood pressure, or Mental Health issues. There are 1520 or more preexisting conditions, and one of them affects a young man. His name is connor perrin. He is eight years old. He suffers from muscular dystrophy. Now i want you to think about connor. This is a chronic and terminal condition. It will slowly erode his motor functions. Unless we find a cure. , eventually, it will take his life. I have gotten to know his family pretty well. Although he appears happy and healthy today, he will lose his ability to walk, run, even hug them good night. As connor gets older, he will need more and more help. He will need the Affordable Care act more and more. He will need protection from abuses that involve preexisting conditions. My reading of your view of the Constitutional Authority of donald trump is if he could simply neil all right, we are monitoring this. We are going to take a quick commercial break here. When we come back, the senator will be the next in line for questioning. Its a given and take continues. Down to the last couple of hours here. For Brett Kavanaugh. Even though it is by a president to james call geic. Geico helps with Homeowners Insurance . Good to know. Feeling better . I love you, pookie bear. [parrot 1] i love you, pookie bear. 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Oh oh oh ozempic® vo ask your Healthcare Provider if ozempic® is right for you. Neil all right, continuing with the Brett Kavanaugh hearings on capitol hill. We are getting a bit of the document dump from senator cory bookers office. A number of emails linking 12 pages of documents that were previously marked committee confidential. Kicking some dust early on, with a number of Committee Members saying he didnt have a right to do that. Settling on the middle ground it to get at least a couple of them release. Now these additional documents. The racial equality issues that have cropped up. National security issues. And i just think issues. Again, he is likely to bring that up himself when he begins motioning in the next hour. But the republican is going to be handling these questions as this continues. May i ask you to describe some of the legal parameters in which we have work today, in regards to the separation of powers. I want to go back to the independent counsel. You will recall yesterday, my questioning, i went through the differences between the independent counsel end of the special counsel. The reason im coming back to it is i am puzzled by my colleagues attacks your writings about the morrison case, which was talking then about the 1980s case in which the Supreme Court upheld that. Then at the independent counsel system. And ive concluded, maybe im wrong, but ive concluded that the reason they keep bringing it up and bringing it up is that they may be trying to create some confusion between the old system, which you were criticizing, which should Justice Scalia criticize, if i understand correctly, which senator durbin criticized, and others did. And i wonder if maybe they are trying to create an impression in the public that you were criticizing the current system. So i just want to give you one more chance to make it clear. In your writings about the morrison case, were you criticizing the Current Special counsel system . Thank you, no i was not. I tried to make clear to you senator coons and otherwise that i have repeatedly discussed the tradition of that kind of system with approval in the journal article that i wrote in the late 1990s as well, most recently in the phh decision, distinguishing that. The old independent counsel system, and more, which dealt with it, nonexistent, and i have always spoken approvingly of the general system and the tradition of special counsel. Well, thank you. And i hope that puts it to rest. Like i said, i have been perplexed as to why it is that the system that ended in 1919 then, why it was such concern. And i hope thats any confusion that has been created by those attacks doesnt create and want to create an impression that you are making any comments about our current situation. So thank you for that. What i would like to do with the rest of the time i have is go through some issues related to the separation of the powers. I realize you have been through this it may seem endlessly in the last two days, but i want to go back and first to start with the notion of deference with regards to rule making in the chevron document. Could you just described to us what this chevron doctrine is . Yes, that doctrine when Congress Passes a statute in an administrative agency, implementing that statute, the agencys interpretation of that statute will be upheld by a court, so long as it is a reasonable interpretation of any ambiguity or gap that may exist in the statute. If they interpreted in a way that is contrary to its language, as interpreted by the text structure, history, as reflected in the footnote nine, then it is impermissible, but otherwise, if there is a gap in the interpretations under the chevron doctrine, it is upheld. Then when you talked about interpreting the statute, agency rule making. Ordinarily it will be in agency rule making, or at least often. And there is an exception, correct . Four major cases . What is the exception . For the rules of Major Economic or social significance, the Supreme Court has long made clear that the deference to the agencys will not apply in those cases. We expect congress, in the words of the Supreme Court, most recently, we expect congress to speak clearly if it wants to assign rule making and issue of social significance to an agenc agency. That is the doctrine that the justice in the 1980s first talked about, i believe. In the 1980s, the decision as well talked about it. And that doctrine has been applied by the Supreme Court since the 1990s most recently in the king versus burwell decision. It seems to me that that is a pretty broad or maybe narrow exception. What i mean is [yelling] how does a judge to determine when you have a major circumstance that will be impacted . Are there rules about how a judge makes that determination . There is no clear rule on that. I have talked about that in the u. S. Telecom decision. They have not yet provided specific guidance. Do you look at the number of people affected, the amount of money involved, kind of attention it has received in congress, the kind of attention it has received in the public, and you make a judgment based on that, whether this is the kind of rule, as Justice Breyer first explained, really feeling smaller parts of the statute, or a big social or economic decision. There are lots of factors you could look into to determine that. Also, it seems to me, and relevant to a number of other comments that you have received, if the congressional statute that is passed, that is vague, overbroad, that the room for Agency Discretion is greater. Does that play a role in the determination as to whether it is a major exception that would require a deeper review by the court . Well, the question of ambiguity is something that applies in all of these chevron cases. But i do think as well in the major rule situation, what Justice Scalia said for the Supreme Court, if its the rule of Major Economic or social significance, we expect congress to speak clearly. And it Justice Scalias opinion for the court is quite important. In other words, we want to see and express authority to decide the major social or economic issues, that is going to be upheld as a rule by the courts. Well thank you, i appreciate that. This issue is very important to me and to a number of my colleagues because there is a concern among many members of congress that congress has delegated too much of its responsibility to the executive branch by giving them this deference and rule making. And the broader and more vague at the congressional delegations are, the greater the opportunity for the executive to simply write a law through rule makings. So it is a very significant issue. A further question i have is and i know you have also been asked this earlier. Is there a point at which congressional delegation can be so broad as to be unconstitutional . For example, one of the examples you are given earlier, creating another group and saying we are going to have them be congress now. So they have long applied the delegation that allows a broad delegation. But there is a limit to how broad those delegations can be. And there is litigation in the federal courts now. And in the Supreme Court now about Certain Applications of the nondelegation document. But congress can delegate probably. There are limits. It has to be an intelligible principle. That is the praise that the Supreme Court has used. Now, what that means in practice has been decided under a series of cases applying the principle over time, built on one another, and that is what the Court Applies to figure out, whether a delegation has gone too far. This brings in the issue of independent agencies as well. I know you have talked about that a lot as well. Humphreys executor is the case that sets the standard, correct . As to what is an appropriately constitutional created independent agency . That is correct. The 1935 decision upheld where the heads of the agencys removable only for cause, not at will. So we see agencies such as the federal communications commission, and the like. You rules that the creation of that independent agency was unconstitutional. Thats particular independent agency was differently structured than the typical and traditional agency. I dissented in the d. C. Circuit and a challenge to the constitutionality of that structure because there were two levels in essence. The Supreme Court granted review, the opinion by chief Justice Roberts. They agreed with the approach that i had set forth in the sense that in the dissent, the free enterprise, the case, and a chief Justice Roberts opinion in that case. And what about the cfpb case . I understand that you did not rule that the cfpb could be that it was so unconstitutional that it had to be eliminated. But that its a structure needed to be changed in regards to the authority to replace the director. Could you first of all just describe your reasoning in that case a little bit, and that i have one followup question. That decision in my view followed from the other case that chief Justice Roberts had written for the court. The cfpb was also structured differently from the normal agency, and of the Supreme Court, speaking through roberts, had made clear that independent agencies that were a novel, not historically rooted in structure, were problematic constitutionally. And the single director head of an agency was something novel, not something that traditionally occurred in independent agencies. So i felt under the precedent set forth by the Supreme Court, that was a problem. But i did not say that the agency was the invalid or could not continue to pursue its important functions, regulatory functions for consumer protection. Rather, i said simply that the single director had to be removable at will. Not for cause. I also made clear that if congress wanted to have a traditional multimember agency, congress could of course change that structure if they wanted. The important point for your question, the agency would continue to operate. There was another judge he did say due to that flaw, the whole agency should cease operations. I did not agree with that remedy because i did not think that was the proper remedy under the Supreme Courts precedents, remedying the constitutional problems. That is really my followup question. Neil all right, we are going to continue to monitor this. I want to bring you uptodate on a couple of things. Twitter has effectively banned alex jones and his website, following the likes of apple and google and some of the others that have said that it is simply too provocative. And suspended on the belief that it is not productive to the course of user interaction. So twitter banning alex jones. Separately as we continue to follow these hearings, more emails and more documents have come out here in new jersey senator cory booker releasing emails pertaining to Brett Kavanaugh, that cover everything from abortion to affirmativeaction. And on abortion, even though the judge had said that this is law, his turn in for questioning, a number of email exchanges indicate that at least for the judge, it is not entirely settled. Some of these dates almost 20 years ago. But again, that is something that will come up in ongoing discussions that could go well into the night. For now, we just want to keep you abreast of those developments. We expect to wrap up sometime hello. I am spart cus with juan williams, Jesse Watters and she uses a step ladder to get on a step ladder. Dana perino the five. All right, about that anonymous oped by a senior official in the New York Times trashing the president for his style and coarseness. They went after trump for being trump. Shocking. The New York Times said this story was published at the request of the author which is the way the New York Times