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 me