gauge on the graham amendment. not just authorization. they want us to engage to eliminate, if possible, but if not to fix. d.o.d., not d.o.j., has the lead, which may be what led to d.o.j. l.a.'s confusion. the key point for us is that we have green light to engage on grant. the arb administrative review board concept and allow the courts to judge the work product at the dc circuit court of appeals. to have judicial review, but let the csrt go first. do you remember that? >> i do. >> okay. >> and the combat status review board has a first shot at to telling whether somebody is an enemy combatant, and the d.c. circuit court of appeals could -- ark temporary or if it

made sense. the supreme court struck that down saying it was not a subt substitute for habeus. that is correct. >> yes, that's correct. >> your role in this is trying to find a way to engage congress on the detainee treatment act because it was your view that congress, being involved, would strengthen the president's hand? >> as a lawyer? >> yes. >> i was not a policymaker, but i did advise. >> as a lawyer. >> as did many others. there were many other very fine lawyers too, senator, who advised the administration that engaging congress would be a good idea. >> any lawyer that understands this -- the signing statement, is it fair to say there was a conflict between the vice president's office and other parts of the bush administration about what the signing statement

should say or look like? >> that's my recollection. >> i remember vice president cheney saying we have the authority to do whatever we need to do. a lot of other people said, no, you don't have the authority to set aside a law. you need to have a reason to object to it. i just want the public to understand that when it comes to this man, aye seen him in action in very complicated emotional matters where you had one group of people that could give a damn about the terrorists and another group of people that wanted to criminalize what i thought was a real world fight, and we tried to find that middle ground. in a 5-4 decision the supreme court struck down my proposal and we fixed it later with a

huge bipartisan vote so that every enemy combatant today has a habeus proceeding where the government has to prove by preponderance of the evidence that you are, in fact, an enemy combatant than if they reached that conclusion, you can be held under the law of war as long as you're a threat to our nation. is that a fair summary of where we're at? >> that's my understanding. senator, along the way your legislation did prevail in the d.c. circuit and the supreme court. it was a close call. 5-4, as i recall. >> that just proves that five people can be wrong. >> you're not going to get me to commit on that one either. >> not even going to try. >> there will be more legislation coming and regarding the role of the government in gaerg information, but from sort of a civics point of view, which senator sass is going to take you through, there's a

difference between the law of war and domestic criminal law. do you agree with that? >> yes, senator. >> that a common criminal, the goal of the law is to prosecute a crime that one individual or group committed against another individual or groups. that's correct? >> that's right. >> the law of wars is about winning the war. >> well, senator, there are -- >> how you fight the war -- >> there are, as you know, rules about that too. >> right. >> laws about that. >> we're fighting an enmachine that has no rules that would do anything, and i have always been in the camp that i don't want to be like them. i think that's their weakness, and the strongest thing we can do is stabbed up for a process that's stood the test of time, which is intelligence gathering and a humane way because they would cut our heads off doesn't make us weak because we won't cut their heads off. it actually makes us stronger over the ark of time, so that's my commercial about that. there will be more litigation

and there are no bad guys or girls when it comes to challenging presidents. do you agree with that? people have a right to do that. >> to challenge precedent? >> yes. >> every person is allowed to come to court to bring whatever claim they have. that's how our system works. >> that's how brown versus board of education came about. >> exactly right. >> let's talk about roe v. wade. what is the holding of roe v. wade in 30 seconds? the holding of roe versus wade in 30 seconds, senator, is that a woman has a right to an abortion. they developed a trimester scheme in roe that specified when the state interest and when the woman's interest tend to prevail. >> let me just break it down. the court said that there's a right to privacy, that the government can't interfere with that right in the first trimester. beyond the first trimester, the

government has more interest as the baby develops. is that fair to say? >> that was the scheme set -- >> >> that's the test that the court came around and applied in casey in 1992. >> okay. >> so viability became more of the touchstone rather than a rigid -- >> is it fair to say that medical viability 1992 may be different than it is in 2022 medically? >> senator, i'm not a scientist or a doctor. >> i would suggest that medical viability may change as science progresses so you may have people coming in and saying in light of scientific medical changes, let's look at when medical viability occurs. that's one example of litigation. that may come before you. i have legislation that says that 20 weeks, the unborn child is able to feel excruciating pain and the theory of the

legislation is that the state has a compelling interest to protect an unborn child from excruciating pain, which is caused by an abortion. i'm not asking you to agree with my legislation. i am saying i am developing we're one of seven nations that allow wholesale on demand unlimited abortion at 20 weeks, the fifth month of pregnancy. i would like to get out of that club, but we're going to have a debate in this body and the house about whether or not we want to change the law to give an unborn child protection against excruciating pain at 20 weeks because you can -- the standard medically is that if you operate an unborn child at 20 weeks, the medical protocols are such that you have to provide anesthesia because you don't want to hurt the child in the process of trying to save the child. medical practice is such that when you operate on an unborn child at 20 weeks, which you can do, you have to apply anesthesia. my theory is, well, let's just

look at it the other way. should you allow an abortion on demand of a child that can feel excruciating pain? is that what we want to be as a nation? does that run afoul of roe v. wade? i want to make the argument that there's a compelling state interest at that stage of the pregnancy to protect the child against death that is going to be excruciatingly painful. you don't have to say a word. i'm just letting everybody know that if this legislation passes, it will be challenged before you. you'll have to look at a new theory of how the state could protect the unborn, and here's what i think. you'll read the briefs, look at the facts, and make a decision. am i fair to conclude that? >> i can promise you no more than that, and i guarantee you no less than that in every single case that comes before me. no matter what the subject matter. >> this may develop over time because 70% of the american people side with me on the idea

that at 20 weeks we should not be in the club of seven nations that allow abortion on demand because that's in the fifth month, and that doesn't make us a better nation. there will be people on the other side saying no, that's an erosion of roe, and it will go to the court. fab if it ever passes here. the only reason i mention this is that everybody who wants to challenge whatever in court deserves a person like you. a person like you, no matter what pressures are applied to you will say over and over again i want to hear what both sides have to say, i want to read their legal arguments, look at the facts, and now we'll decide. that to me is reassuring. that's exactly the same answer i got from sotomayor and kagan. we can talk about what you may or may not do.

if you do anything different than that, i think you would be unworthy of the job. about what's going on in the country with president trump, whether you like him or you don't, he is president, but you have said several times that he is not above the law as president. is that correct? >> yes, senator. >> you have told senator leahy if there was a law passed that a muslim could not serve in the military, you believe based on current law that would be an illegal act. >> senator, yes, i see that having all sorts of constitutional problems under current law. >> so if we have laws on the book that prevent waterboarding, do you agree with me that the detainee treatment act prevents water boarding? >> that's my recollection of it, firmly. >> so in case president trump is

watching, which he may very well be, one, you did a good job picking judge gorsuch. number two, here's the bad part. if it you start water boarding people, you may get impeached. is that a fair summary? >> senator, the impeachment power belongs do this body. >> that's even better. would he be subject to prosecution? >> senator, i'm not going to speculate. >> but he is not above the law. >> no man is above the law. >> okay. >> no man. >> thank you. i think you're a man of the law, and i really want to congratulate the president to pick you. quite frankly, i was worried about who he would pick. maybe somebody on tv. but president trump could not have done better in choosing you, and i hope people on the other side will understand that you may not like him.

i certainly didn't agree with president obama, but i understood why he picked sotomayor and kagan, and i hope you can understand why president trump picked neil gorsuch and you'll be happy with that because i am. >> thank you, senator. >> we'll recess until 12:45. >> all right. the first round of confirmation hearings for federal judge neil gorsuch. five of the 20 u.s. senators already have asked questions. each getting a half an hour. 15 more senators are going to go in this first round, and then tomorrow round two. 20 minutes each. so far he has been in the hot seat. let's get some analysis and reaction. jeffrey tubban, you are our supreme court expert. what do you think? >> i would say the seat is warmish. he is doing very well. i think he is charming. he is folksy. he is abiding by the so-called

ginsburg rule which means he is not answering questions at all much. he is demonstrating he knows a lot of constitutional law. he is demonstrating that he knows the facts of a lot of these detainees issues from when he was in the bush administration better than dianne feinstein who tried to question him about that, and in a judiciary committee, in a senate with majority of republicans, he is doing fine. >> he said he would stand up to president trump if he had to. he demonstrated to the skeptics about whether he would, you know, answer whatever he would say on roe v. wade. he said if the president asked me ahead of time to promise how i would vote on roe v. wade, the abortion rights decision, i would have walked out. i don't know how convinced some democrats would be to that statement, but there were several questions about the independence of this nominee to the man who nominated him, and

he over and over said, look at my record. i have ruled against government at various times, and i would continue to do it again. >> gloria, he did say he only met the president once when he interviewed him to become the supreme court nominee, are and the president did not ask him if if he would try to overturn roe v. wade. what would you have done if he would have? he said i would have walked out of the room. that was a pretty strong statement. >> yeah. it was a very strong statement, and i think what he did today, as jeffrey is saying and jonah is saying, tried not to answer the questions that could come before the court. on the issue of religious freedom, however, and the famous hobby lobby case in which he did join an opinion on it, you know, he made very clear that he believes that religious freedom is one of the tenants of this country, and he believes that was what applied in that case. when he was asked about the

muslim ban, however, the so-called muslim ban, he would not talk about the travel ban because he said he might have to rule on it. he also dodged on judge garland who he said is a very close friend of his, but wouldn't enter into the fray about whether the republicans had done the right thing in denying garland even a hearing or a vote. >> john, go ahead, give me your analysis. there are 52 republicans in the senate. he needs a confirmation of 51. then he is confirmed. unless the republicans decide to change the rules and go with -- if there's a filibuster, the republicans change the rules. >> he said he would do that if necessary. he is an institutionalist. he does not want to do that. this is really going to be an interesting test of the

democrats because we're just through the morning. we have a long way to go. today and tomorrow. the democrats have not even bruised, blemished anything to this judge so far. they're trying to score their points and asking predictable -- i'm not saying it's wrong to ask predictable questions, but he has poise, to jeffrey's point. he knows the law. he knows what he is doing. if you want to view this transactionally, the president of the united states had a very bad day yesterday. today his supreme court nominee has had a very good first morning in the chair questioning, and while we've been watching that, we also know some skeptical house republicans have moved the leadership way and the president's way on health care. this day for the president so far, a whole lot better than yesterday. >> we're going to get to both of those other issues in just a few minutes. >> clearly republicans are trying to frame gorsuch as a consensus builder. as somebody who has bipartisan support, as someone who can appeal to somebody like heidi hidecamp and joe manchin, folks in the red states, who because, you know, i think gorsuch is very much coming across as a

very warm, down home kind of person. you imagine those folks in states like that would find him very appealing. i was looking at scott walker's twitter feed, and he said this is a note to democrats that this is someone you can get behind. of course, i mean, if you look on twitter at some of the folks on the progressive side, on the left, they want to talk more about abortion, about roe v. wade, about where he would stand, and you saw dianne feinstein try to make some headway on that to ask him did he see that as a super precedent, as something that had been affirmed many, many tiemds and, again, he isn't tipping his hand. he is applying the ginsburg rule where he gives no hints. >> he comes across as very likable and knowledgeable. >> i think he did a great job this morning. i think the democrats have done a pretty poor job, but i think the reason they have done a poor job is there's not a lot to beat this man up on. if you were going to beat up neil gorsuch, you don't ask him

a bunch of questions on supreme court precedence because you know he is not going to answer them. the only thing you can hit him on are decisions he made. then he has to explain his decision. he can get into the law. >> he has to defend his own opinions. to my knowledge they've asked him about one opinion, which means we've had a whole morning, and they've only brought up one case where they thought there may be some hay to make. that tells you they don't have a whole laundry list of hits to go after him on opinions where he is way off base. >> seven democratic senators still have an opportunity to ask questions. >> it's not -- they didn't go after him. if there was -- trust me. if there were cases out there that they thought he was vulnerable, they would have gone right -- >> we're going to be hearing from eight more republican senators. how did he do? >> pretty well. i mean, look, i think democrats are opposed to where he is, how he has ruled on a number of issues. that's the outcome of an

election, as gloria said earlier. he is a conservative pick. he is likable. he made a lot of dad jokes that weren't really funny, but probably appealing. i think the big question here is what senator santorum said earlier today is what's happening behind the keenz. there are eight democrats they need to get in order to, you know, override the filibuster. i think democrats are going to push on this. they need to for their own purposes, and they need to galvanize the base about a range of issues. backing away will be seen as a bit defeatist. >> you don't think they'll get the eight votes? is that -- >> i don't think they will. >> really? >> i think democrats are going to keep pushing on this, and they're going to try to keep their people with them. >> senator santorum, if they -- the democrats filibuster, they don't get the eight votes, will the senate majority there change the rules, the so-called nuclear option? >> absolutely. you know, lindsey graham talked about being the gang of 14 trying to forestall the nuclear option back when the bush

nominee was blocked. i was part of the nuclear committee. i wanted to deploy the harry reed nuclear option because i think actually the rules -- the way harry reed interpreted them is right. the senate filibuster rule does not apply to executive no, ma'am nags. the rule is very clear. it says legislative calendar. nominations are on the executive calendar. it's actually a separate calendar. the rule, as written, never in my mind -- it was always custom that they applied it to a nominee, but it never actually did. what harry reed did was went out and said we're going to apply it to all nominations, except supreme court. there's no -- that's just making up the back of an envelope. the bottom line is if it's all nominees -- it should be all nominees or none. i think there's plenty of precedent for republicans to say, look, the rules changed back in 2013 when harry reed did this. we're going to apply it to everybody, and that's what's going to happen. >> i -- the first four

questioners were senators grassley, feinstein, hatch, and leahy. i added up their combined ages. 324 years old. they looked it. i think if you want to cross-examine someone as knowledgeable and as smart and at the top of his game as much as neil gorsuch is, you need people who really are on top of their games and none of the four of them are. i thought it really showed. >> that will happen in the second part because we'll have senators whitehouse, durbin, franken. those are people that will come back much stronger and would probably happen during the morning is that several people from the progressive base were going nuts. they're saying why don't you follow-up more? they're probably going to help, you know, pin them down more. the most awkward time came when senator feinstein was asking about some of his torture detainee information. you can read them.

>> you don't ask someone a question about a document and then not show them a document. senator feinstein, as wonderful a history as she has, you have to ask people questions in the right way. >> all right. everybody stand by. there's a lot more coming up. other major developments today. the future of health care repeal and replace now on the line. a big house floor vote coming up. the president was up on capitol hill meeting with republicans making his case for the legislation. we'll update you on that and a lot more right after this. obiots can often help. try digestive advantage. it is tougher than your stomach's harsh environment, so it surivies a hundred times better than the leading probiotic. get the digestive advantage.

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press briefing. that's coming up. we'll have coverage of that. on the right the senate judiciary committee, they will resume. they're in recess right now. confirmation hearings for the supreme court nominee, judge neil gorsuch. we'll have coverage of that once that committee hearing resumes. senator dick durbin, the democrat from illinois. i think he is scheduled to begin the questioning. there are other major developments we're following right now, including a huge battle underway up on capitol hill over the republicans health care bill. president trump and house republican leaders just finished a closed door meeting with just two days to go before the critical vote on the house floor. both the president and the speaker, paul ryan, they came out sounding confident that the new version, the bill with significant changes will pass. listen to this. >> we had a great meeting, and i think we're going to get a winner vote. we're going to have a real winner. it was a great meeting. terrific people. they want a tremendous health care plan. that's what we have. they're going to be adjustments.

i think we'll get the vote. >> you said that -- >> i want to say we were honored this morning to welcome the president of the united states to our house republican conference. i want to thank them for taking the time to talk to our members and for his steadfast leadership throughout this entire process. president trump was here to do what he does best, and that is to close the deal. he is all in, and we are all in to end this obama care nightmare brsh. >> not all republicans are calling it a done deal by any means. let's go to our congressional correspondent phil maddingly. he is live up on capitol hill. he was very, very upbeat, the president. he says it's a winner. what are you hearing? >> no question. well, sources inside the room said he talked about crowd sizes. he tried to rally the troops, and he even let loose a few vailed and not so vailed political threats to the house gop members. the real question still remains, was this enough to get republican leadership the requisite number of votes they

need to pass this? in some cases the answer is no. take a listen. >> you change your mind at all? >> no, i said the president did a great job, and i appreciate the president, but the bill is still bad. >> you are going to vote no on thursday? >> that's what i plan to do, yeah. >> so his basic pitch was, what, vote for this essentially? >> that's about it. nothing in detail except politically it's the right thing to do. that kind of stuff. >> did that change your mind? >> no. >> you're still going to vote no? >> absolutely. >> walter jones, jim jordan, they were both hard on the no side of things, but there were a lot of members who could be persuaded by this meeting. one of whom, darrell isa went into the meeting saying he was pretty sure he was a no. came out of the meeting saying he was now a likely yes. the question now becomes how many of those members truly exist as they try and get to that 216 number? one of the most interesting elements i'm told from what was

said inside the room by the president was a warning. a warning that if this bill fails, if the kind of primary issue on the trump agenda goes down on thursday in this house vote, many members will lose this -- their seats, and the house majority will actually be at risk and likely will go away as well. i asked speaker paul ryan what he thought about that. take a listen. >> the president told your members that he believed many would lose their seats if this doesn't pass, the majority was at risk. do you agree with that assessment? >> yeah. >> do you believe you have done enough to asuage their decision? >> the president came to us and said we made a promise to the american people, and we need to keep our promises. everybody running in the house and the senate, the president himself, said to the american people you give us this responsibility, this opportunity, whether republican president with a republican senate and republican house and we will repeal and replace obama care. we are using the tools that we have to do that. that's this budget reconciliation. you can't put everything you want into that bill.

that's why we have a three phase process that we're very confident works, but the president was really clear. he laid it on the line for everybody. we made a promise. now is our time to keep that promise, and we keep our promise, and the people will reward us. if we don't, it will be very hard to manage this. >> wolf, as you see speaker ryan not hedging on the stakes. they are real and very big. i can tell you what's happening behind the scenes right now. house leaders are trying to get a sense of where that vote is. they're whipping their votes and trying to understand where their members are, how close they are to that number. at the same exact time, the conservative house freedom caucus in a building a couple of blocks away, they are now meeting privately as well. many of them have said they are either opposed to the bill or lean no's. the big question is where will they come out? last night, wolf, they were saying they had enough votes to sink the bill. did president trump help change that? that's the hope of leadership as we move into this afternoon, wolf. >> very quickly, phil, if the speaker and the majority leader in the house, kevin mccarthy, if they feel they don't have the 216 votes, i assume they won't

even let the legislation, the bill come up for a vote, wiet right? >> it's an open question. i think that's kind of everybody's assumption right now. we'll know if they have major problems if the rules committee meeting tomorrow starts to move off the schedule or if this vote is pulled altogether. be i do think it's worth noting they've made clear, this is the lone vehicle to repeal and replace obama care. that means there are no other options on the table, and that also means that if this bill runs into problems, if it looks like it's going down, their only option if they want to keep this going will be to pull it and try something else, but i can tell i have not talked to a single leadership aide or member of leadership that says that is on the table right now. we'll have to wait and see over the next 24, 48 hours. >> yep. the vote coming up on thursday. phil maddingly, we'll check back with you. gloria, this is going to be a really close roll-call by all accounts. >> these kinds of votes very often are, and i think, you know, as phil was saying, i don't think they're discussing pulling it yet, and we'll have to see because it seems to me like they're getting to yes or they think they're getting a

yes, but think back to the campaign. this was a president that went to african-american voters and said what have you got to lose? now he is going to his republican caucus and saying you're going to lose unless you do this for me because you're in this with me, we are all in this together, and, you know, my question is he might be right or he might be wrong because if they pass this bill and people don't like it, then people will hold them responsible. it's a big gamble for these members, and the conservatives who are out there who have believed in these conservative principles, which they say are not represented in this bill, they call it obama care light, even with the changes, so, look, i think this is frought with political risk and the president was telling them behind closed doors today the big risk for you is if you promise something and you don't deliver it. >> but even if they pass it on thursday in the house, that's just the step in the process that then goes to the senate where there's a much slimmer

republican majority. >> it would be a tactical victory. it's not guaranteeing repeeling and replacing obama care. it gets you through the house. knee made changes largely in the medicaid slice of this to get more house votes, which has damaged their case with the more moderate members of the senate. this will be tactical victory. if they can pass something. if they can do that in the house, don't count. that's not the final bill. it will be changed again in the senate, and then the question will be can the president cut a big deal. that's the short-term. we're talking more about the politics than the policy, frankly, to see if that gets through. to gloria's point, if jen can remember a democratic president, barack obama, telling squishy democrats on obama care, this was our promise to the american people, we must do it or else we will be punished. they did it, and he were this punished. >> you manual some of the folks saying they don't want to touch the third rail of american

politics. even if it passes and donald trump is able to sign this repeal and replace into law, the affects on average people, we don't know what they're going to be. if you believe the cbo score, people are going to go in and are going to face higher premiums. older people are going to probably drop out of the system. at first premiums will go up and then they'll go down. if you look at the movie that we've seen, the democrats starring in obama care, it didn't end well. it didn't end well in 2010 or 2014. >> you should be in the senate, rick santorum wrrks how would you vote? >> well, i voo vote yes. i would vote -- i would vote --

you got to get the bill out -- >> you say i can't answer that. >> there's a lot of things i don't like about this bill, but you have to get this bill out of the house. what you haven't talked about, and i don't think republicans are considering and they should be is failure. you say it's all political. no, it's not. obama care is failing. >> here's the problem, republicans are going to own the health care system whether they fix it or not because by not fixing it and leaving it in place, you now own it. you have now taken control of obama -- the fact that we've tried through this, we now own it. whether we pass it or not, we own it. that's what people aren't understanding. there is a huge problem with not doing something. at least if we own it, at least give a try for what we believe in instead of owning something

that we have nothing to do with. >> jen. >> i think republicans are experiencing what democrats have when they experience when they won, which is the realities of campaigning are very different from the realities of governing. i think she shot one of the obama care bills, and now you have seen her get a little squishier and back away because she's seeing the realities of what the impact will be on the people of iowa. you know, the fact is they're looking at a situation now where they're taking something away from people. they're taking away health care. they're taking away security. they're taking away, you know, seniors and vulnerable people being able to get the testing they need. that is a very difficult thing to go home and defend, and we're only a couple of weeks away from a two-week break for easter, so there's a time clock that's happening here too. yes, it's not a disaster for them if they don't pass it on thursday, but as more time passes, it's going to be more time for people to digest what's

being taken away with from them. >> you have said even if it passes, let's say it becomes the law of the land, it will be subject to judicial consideration. there will be challenges where. >> completely. when the obama care law was signed, within hours there was the first challenge, and the same thing is likely to happen again. >> on which issue? on which part? >> it can go -- what was taken away. there could be things on the medicaid. for obama care there were so many different lawsuits filed that, you know, you could go for the whole package in terms of its constitutionality or statute requirements. there are a host of things, and the thing i was thinking about with what jen said about the recess coming up, you know, think of the kind of sloganeering we just heard from the lecturn. closing the deal. he is going to come on strong. once those members go back to their town halls, you know, they're going to want specifics about the details of what's going to happen with their individual health care. they might -- people out there might not have understood much of what was happening during the

neil gorsuch hearings this morning. you know, that was way above what they care about, but this is the real -- >> just remind our viewers as we're getting ready to resume coverage of the neil gorsuch confirmation hearings for the supreme court, it was the supreme court that kept obama care alive with that ruling in favor of the mandates, the taxes, and the chief justice basically saved it. >> twice. twice. it was really an extraordinary sort of drama in the supreme court where there was the first case, which was brought right after obama care passed. it's challenged the constitutionality of the whole law. 5-4 decision. the four democratic appointees plus john roberts, the chief justice upholding the law. then a couple of years later the law that basically -- the lawsuit that would have crippled the implementation of the law also saved by john roberts' vote, and so --

>> anthony kennedy. >> on the -- that was a 6-3. it just shows how so many big political controversies ultimately wind up before those nine judges. >> i will also say that the supreme court also changed the law, are and that was -- it was very dramatic because it was about medicaid, and it gave states the options to take this medicaid money that was available to them, and lots of states opted out, which i would argue is why the congressional budget office estimate was off, but now the fight, all these many years later, the fight is over medicaid, and that very issue that justice roberts really decided in many ways, and so it sort of comes full circle. >> we're going to resume our special coverage of these confirmation hearings before the senate judiciary committee, the federal judge neil gorsuch. he is going to be answering questions from democratic and republican senators. remember, he is ouls 49 years

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once again, you see the white house briefing room on the left part of your screen. the president's press secretary, sean spicer, he is going to be having his daily press briefing. that's coming up. we'll have coverage of that on the right part of your screen. you see the senate judiciary committee ready for round two this morning. five senators so far have had a chance to ask judge neil gorsuch questions, but there are another 15 to go. each senator will have half an hour. our special coverage of that will resume momentarily, but all

this comes, what, 24 hours after very dramatic, extraordinary testimony from the director of the fbi, the director of the national security agency. very awkward, embarrassing testimony as far as president trump is concerned. you know, gloria, the fall-out when both of them claim there's nothing to back up the claim that obama wiretapped trump tower in new york city. the fall-out is significant. >> we also haven't heard from the president on it. we heard from sean spicer immediately afterwards, and i'm sure he will have more about it today, and he will say it's ongoing. >> hold on a second. sorry to interrupt. round two today has just started. this is dick durbin, the democrat from illinois. >> senator mccain and senator

graham wrote the legislation with input from the department of defense and the department of justice, and a whole lot of others besides. i was one voice among a great many, be and in terms of when it was struck down hand don helz that the detainee treatment act didn't apply retroactively. it only applied prospectively, and then several years later -- gosh, i want to say it was 2008 maybe, the court came back around. >> what i'm driving at, though, is the mccain section relative to cruel, inhumane and degrading treatment. i assume or i hope you have had a chance to take a glance at the e-mails that senator feinstein gave you. you said you wanted a signing

statement. he is basically codifing interrogation policies. what interrogation policies did you think the mccain amendment was essentially cod ifying? >> i haven't had a chance to look at that. i scarfed down a sandwich over the break, and i will be happy to read it, but i'm not sure what i can answer you here sitting off the top of my head. it's been -- it was 12 years ago, and i'm doing the best i can with my recollection. >> i'm trying to get is this th e-mail, which i understand there were thousands of pages of emails. >> i think the department of justice has produced something like 200,000 pages. >> i will concede your lack of memory at the moment and contrast with your clear statement that you believe that the mccain bill, which i supported, outlawed water boarding. >> sitting here that would be my

understanding. >> when you were talking about a signing statement, waterboarding was -- >> i want to cod ify -- there's an inconsistency there which we're going to have to wait until the second round to resolve. >> okay. >> okay. >> let me read something to you and ask you for a reaction. is a statement that was made about eight days ago by a congressman named steve king of iowa, and here's what he said. "you cannot rebuild your civilization with somebody else's babies. you got to keep your birth rate up and you need to teach your children your values. in doing so, you can grow your population, you can strengthen your culture, you can strengthen your way of life." the reaction to that statement was overwhelming. civil rights leader congressman john lewis called it bigoted an

ryan said he clearly disagreed with king's comments and went on to say the speaker clearly disagrees and believes america's long history of inclusiveness is one of its great strengths. what would your reaction to that statement be? >> senator, i can talk about my record, and i can tell you that as a federal judge when a defendant comes to court with an allegation that the s based on his ethnicity. me and my colleagues -- my colleagues and i, have case. i can tell you that when an immigration lawyer fails to provide competent counsel time and time again, i have sent him to the bar for discipline. i can tell you that when it comes to access to justice, i have written on this topic, i have worked on this topic for the last six years together with

many wonderful people on the rules committee trying to make our civil litigation system cheaper and faster because it takes too long for people to exercise their seventh amendment liberties, and i can tell you together with my colleagues when we found that the level of representation of inmates on death row was unacceptable in our circuit, a whole bunch of us -- i can't take too much credit -- tried to do something about it. i it tell you that when prisoners come to court pro se handwritten complaints, and i see something meritorious to them, i senator. >> can you describe your relationship with professor john fenis? >> sure. he was my dissertation supervisor. >> when did you first meet him? >> whenever i went to oxford, so it would have been 199 --

>> 2. >> could have been 2 or 3. somewhere in there. >> and how -- what was his relationship with you or you with him? >> he was my diseithertation supervisor, and i would describe that as a relationship between teacher and student, and he was a very generous teacher. particularly generous with his red ink on my papers. i remember sitting next to the fire in his oxford office. something out of "harry potter." he always had a coal fireplace burning, and sometimes whether i was being raked over the coals. he did not let an argument that i was working on go unchallenged from any direction. >> so that was over 20 years ago that you first met him? >> whatever it is it is, yes. >> do you still have a friendship or relationship with him? >> i -- last time i saw him, gosh, when he -- i know i saw him when he retired, and there

was a party held in his honor, says and i remember seeing him then. that was a couple of years ago. >> did he know you were from colorado? >> i don't know. it must have -- at some point come out in our conversations. i don't know. do you recall saying words of gratitude in help writing your book. >> he did not write my book. he did not help right my book. i wrote my book. i certainly expressed gratitude to my dissertation supervisor in a book that is basically my dissertation. >> i think you were quoted as saying in 2006 you thanked fenis tore for his kind support through draft after draft. >> and there were a lot of drafts, senator. i mean, golly, that was -- that was a very tough degree. that was the most rigorous academic experience of my life,

and i had to pass not just him, but an internal examiner and an external examiner, says and that was hard. that was hard. >> in 2011 when notre dame ran a symposium to celebrate his work, you recalled your study under him, and you said "it was a time when legal giants roamed among oxford spyres." you called him one of the great scholars. >> oxford has a stable, and it's part of the reason why it's such a privilege. here is a kid from colorado, and i got a scholarship to go to oxford. i had never been to england, to europe before, says and at oxford at that time they had john fenis, joe razz, ronald dwarkin. a.j. hart was still alive then. >> if i can read a couple of statements from professor fenis. in 2009 the professor wrote about england's population. he said england's population had

"largely given up bearing children at a rate consistent with their community's medium term survival." he warned they were on a path to "their own replace am as a people by other people's more or less regardless of the incomer's compatibility of psychology, culture, religion, or political ideas and ambitions or the worth or viciousness of those ideas and ambitions." he went on to say, "european states in the early 21st century move into a trajectory of demographic and cultural decay. population transfer and replacement by a kind of reversed kolonization." had you ever read that before? >> nope. >> had you heard it before? >> nope. not to my recollection. >> could you distinguish what he said with what congressman steve king said? >> senator, i'm not here to answer for mr. king or for professor fenis. >> i'm asking your reaction to these things. do you feel that what professor fenis wrote about purity of

culture and such is something that we should condemn or congratulate? >> senator, before i expressed any view on that, i would want to read it, and i would want to read it from beginning to end, not an excerpt, and, senator, i've had a lot of professors. i've been blessed with some wonderful professors, and i didn't agree with everything they said, and i wouldn't expect them to agree with everything i have said. >> let me ask you this specific one. it was 1993, and you were at oxford, and this is when i believe you first met this professor. professor fenis was tapped by the then colorado solicitor general, timothy -- to help defend a 1992 state constitutional amendment that broadly restricted the state from protecting gay, lesbian, and bisexual people from discrimination. during the course of the deposition which he gave in support of that effort, fenis argued that antipattie towards

lgbt people, specifically gay sex, was rooted in religious tradition but in western law and society at large. he referred to homo sexuality as beastiality in the course of this as well. were you aware of that? >> senator, i know he testified in the case. i can't say sitting here i recall specifics of his testimony or that he gave a deposition. >> i guess the reason i'm raising this is this is a man who apparently had an impact on your life. certainly your academic life. i'm trying to figure out where we can parse his views from your views. what impact he had on you as a student, what impact he has on you today with his views. >> i guess, senator, i think the best evidence is what i have written. i have written over, well, gosh, written or joined over six million words as a federal appellate judge. i have written a couple of books. i have been a lawyer and a judge

for 25 or 30 years. that's my record, and i guess i would ask you to respectfully to look at my credentials and my record and some of the examples i have given you are from my record. about the capital habeus work, about access to justice. i've spoken about over-criminalization publicly. those are things i've done, senator. >> what about lgbtq individuals? >> well, senator, there are -- what about them? >> well, the point i made is -- >> they're people. >> of course. what you said earlier is you have a record of speaking out, standing up for those minorities who you believe are not being treated fairly. can you point to statements or cases you've ruled on relative to that class? >> senator, i've tried to treat each case and each person as a person, not a this kind of person, not a that kind of person.

a person. equal justice under law. it is a radical promise. in the history of mankind. >> does that refer to sexual orientation as well? >> senator, the supreme court much the united states has held that single sex marriage is protected by the constitution. >> judge, would you agree that if an employer were to ask female job applicants about their family plans but not male applicants that would be evidence have sex discrimination prohibited by title 7 of the civil rights act? >> senator, i would agree with you it's highly inappropriate. >> you don't believe it's prohibited? >> senator, it sounds like a potential hypothetical case that might be a case for controversy i would have to decide, and i wouldn't want to prejudge it sitting here at the confirmation table. i can tell you it would be inappropriate. >> inappropriate. >> do you believe that there are ever situations where the costs to an employer of maternity leave can justify an employer asking only female applicants

and not male applicants about family plans? >> senator, those are not my words, and i would never have said them. >> i didn't say that. i'm ask you agree with them? >> and i don't. >> okay. >> you wrote an opinion that noted that eeoc guidance commands deference, "only to the extent its reasoning actually proves persuasive. the guidance provides as follows. because title 7 prohibits discrimination based on pregnancy, employers should not make inquiries into whether an applicant or employee intends to become pregnant. the eeoc will generate such an inquiry as pregnancy, discrimination, where the employer suddenly makes an unfavorable job decision based on -- do you find this instruction to be persuasive? >> senator, there's a lot of words there. if you are asking me to parse them out and give you a legal opinion and i fear