good morning and welcome to cnn special live coverage of the u.s. senate confirmation hearings for supreme court nominee brett kavanaugh. i'm wolf blitzer in washington. this is day two of what will be at least four days of public vetting for the president's pick to succeed justice anthony kennedy and where kennedy for 30 years was a frequently pivotal swing vote, kavanaugh is widely expected to tilt the nation's highest court to the right, perhaps for decades. today will be the first chance for the 21 members of the senate judiciary committee to question kavanaugh who is currently a federal appeals court judge right here in washington. we're going to bring that to you live. our coverage will begin shortly. first, president trump and the white house are in attack mode this morning. they're intensifying efforts to discredit the legendary

investigative journalist bob woodward as excerpts from his box shell new book entitled fear portray a president who is unstable and unfit for office. a president that is careening toward what he describes as a nervous breakdown. just a little while ago, president trump fired off a new tweet saying, and i'm quoting now, isn't it a shame that someone can write an article or book totally make up stories and form a picture of a person that is literally the exact opposite of the fact and get away with it without retribution or cost. don't know why the politicians don't change? libel laws. sarah sanders slammed woodward and his sourcing for the book a little while ago. >> he may have hundreds of hours of tapes and most come from disgruntled former employees. what i can tell you is i worked alongside the president, under the president and the last three

years. i've been part of the administration since day one and i can tell you that the president -- everything so far i've seen out of this book -- doesn't depict what's going on in the building behind me. >> rudy giuliani said this, and i'm quoting, most important for libel purposes, he never called me. jamie gangel has been reporting on this. she was first to get a copy of the book together with the "washington post." let's talk. i want to get to other issues. in the book bob woodward notes the president was not very happy with giuliani when he came out defending the then republican presidential candidate after that "access hollywood" video

came up rudy, you're a baby. they took your diaper off right there. you're like a little baby that needed to be changed. when are you going to be a man? now you see what rudy giuliani is threatening. >> and i e-mailed with bob woodward and he says, quote, i stand by my reporting. i also think it's important to remind people that he -- woodward had dozens of sources for these books. he did hundreds of hours of interviews that are on tape and these were firsthand sources. people who were in the room at the time or sometimes he was given documents. >> there's now a denial from james mattis. >> there is a theme throughout

this book that the president's inner circle felt he was a danger to national security. one of the things was he wanted to pull troops out of south korea and there's a pattern where the aides would say you can't do this, they would try to talk him out of it and when all else failed they would bring in defense secretary james mattis who apparently had a good rapport with the president and we have from woodward's book, woodward reports that mattis says to president trump you can't do this, we're doing this in order to prevent world war iii. again, we're hearing some denials from defense secretary mattis but once again bob woodward says he has dozens of sources and documents, meeting notes and these taped recordings. >> there's another devastating section in the book in which

gary cohn, who was then the president's top economic adviser has to go into the oval office and take a document off the desk there that the president was getting ready to sign. >> right. so this is the open for the book. it's the prologue. it's very dramatic. gary cohn, according to woodward see this is and is, quote, appalled. one of the things we're saying is that draft document is actually reproduced in the book. it's also important to note that nobody knew where the document had come from. cohen didn't know, the former staff secretary rob porter didn't know. this was not an isolated incident where they would have to go and do something. >> and in the book, it's not the first time we've heard reports of the white house chief of staff, retired general john kelly, complaining bitterly about the way the president behaves but in this book it

seems to be more devastating. >> general kelly has denied ever saying that he called the president, quote, an idiot. however it's worth looking at what woodward writes. kelly is quoted saying he's an idiot so general kelly denies that but the quote goes on, it's pointless to convince him of anything, meaning president trump, he's gone off the rails, we're in crazytown. general kelly doesn't deny anything else in the quote and there are other quotes woodward has from him saying the president's unhinged, that there are dangerous impulses, erratic. again, general kelly has not come out to say those. and, frankly, saying someone is unhinged, especially the president of the united states, i think is of a great deal more concern than someone maybe throwing and saying oh, someone's an idiot, unhinged,

erratic, these are very concerning. >> it's all awful when you look at it. i want to bring in our chief political correspondent dana bash who has been following this. reaction is pouring in. what are you hearing? >> well, southern democrats and republicans reacting to the term that the president allegedly used about jeff sessions. >> let me read and remind our viewers. the president according to this book by bob woodward said of the attorney general of the united states jeff sessions, this guy is mentally retarded. he's this dumb southerner and then he mocked sessions by feign ago southern accent. >> right, so on that particular one you have southern senators of both parties saying this is outrageous. and then using the "r" word is

something you don't do anymore. that is something specifically the president understanding how bad that looks on all of those levels has tweeted out saying i didn't do that, i didn't say that word and i wouldn't describe a southerner that way because he also understands that's his base. that's trump country in a big way. >> jeff sessions is from alabama. >> and jeff sessions is from alabama. >> but just the more broader picture of this as jamie was talking about describing somebody who is unhinged, who doesn't get it, who won't listen, who is obviously very quick to temper and lash out at his aides. but that is the way this president conducts himself and more importantly as it was described to me by somebody who knows the president and has worked with the president that you also have to remember that

he is a civilian president and he has not been around some of these things and more importantly he also is not somebody steeped in history or an understanding of things like the fact that we have -- the united states has trooped at the dmz in korea and why it needs to be there and it does take a while and it has frustrated many an aide in the fact that it takes a long time to explain to the president. the president of the united states, why some of the most fundamental things are the way they are. like troops there, like, for example, you can't target a leader even if it's assad with the u.s. military. it's not something you can do. you're not supposed to do that. >> for assassination. >> right. it's illegal. >> one of the things that's stunning is that is all true. you can have a temper and you can be profane but i think one of the most shocking things that will come out of the woodward book is that he reports that

this continues over a period of time. right through general kelly being chief of staff and that president trump, according to woodward's reporting still doesn't get it. they have an intervention where they bring him over to the pentagon and they try to explain to him again about south korea. >> we've seen this with every book that comes out by bob woodward. he's written books about every american president and the initial reaction is deny, deny, deny but over time woodward emerges pretty legendary. >> this is the genius of bob woodward is that because he understands his heft and his gravitas, because of his work

during watergate with carl bernstein that he gets people to talk to him and when people start to talk and hear that other people are talking, they want to talk, too, because they want to make sure their side of the story gets in. in some ways it's reporting 101 but it's taken to another level when you have somebody who works like this. >> i remember interviewing bob woodward when his book on president obama came out in 2013. i had him on my show and he said he was getting threats from senior white house staff about stuff he had written about president obama. >> and remember the problem that president trump has is that there's a tweet for everything. he has said that he believes that bob woodward is fair and has donegoodworkand heeven said something to that effect when they spoke in the audiotape that bob woodward really -- >> all very significant. everybody stand by, there's more news we're following, including breaking news. a major democratic primary upset in massachusetts. the boston city councilor ayanna

pressley ousting the ten-term incumbent congressman mike capuano. in her victory speech, pressley called president trump a racist misogynistic truly empathy-bankrupt man. those are her words. our national correspondent miguel marquez is joining us from japan in bostmaica plain i. this is an upset like alexandria ocasio cortez's win back in june. >> this follows a pattern not only with ocasio cortez but gillum in florida and sta say t abrams in georgia. s say t she was running against a progressive mike capuano not exactly a centrist democrat by any stretch, by american standards certainly. far to the left.

a deeply blue district and she ran as an outsider and captured this seat resoundingly. mike capuano was up by 13 points in august. she won by almost 20 points. within an hour after the polls closing capuano was conceding realizing she got the votes out in places he could not do it and it sends a very strong signal to the rest of the party that that's where individuals like pressley, they want to take the party. they want voices like her. she relies very much on her personal story, a survivor of sexual assault raised by a single mother. that's what they want to hear and the blue wave is happening and it's taking some democrats with it. wolf? >> big upset in massachusetts. miguel, thank you very much. just minutes from now day two of what has already been a

rather contentious hearing for the u.s. supreme court nominee judge brett kavanaugh. today the president's pick faces a fierce round of questioning by senators. we'll have live coverage starting right after this bleak. hi i'm joan lunden. today's senior living communities have never been better,

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brain health supplement in drug stores nationwide. - she outsmarts me every single time. - checkmate! you wanna play again? - anncr: prevagen. healthier brain. better life. welcome back. look at these live pictures coming in from capitol hill right now. a confirmation hearing for president trump's second u.s. supreme court pick, judge brett kavanaugh, will resume in just minutes. today lawmakers start actual questioning of kavanaugh. yesterday they were simply opening statements by the senators and judge kavanaugh. democrats expected 20 grill him on several issues, including abortion rights for women, health care, executive power among others. i have a group of experts and analysts with me, we'll assess as we continue to watch this. and remind our viewers, jeffrey

toobin, why this is so significant. why the decision by the u.s. judiciary committee and u.s. senate could have impacts not for four years or eight years but for 30 or 40 years. >> well, the supreme court has been divided much like american politics for the past couple of years. there are five -- there have been five republican appointees and four democratic appointees. but one of the republicans was anthony kennedy who won several important issues like abortion rights, like affirmative action, voted with the democrats and that is why and that is only why roe v. wade has survived as the law of the lan because anthony kennedy was on the court. today is the day we'll start to hear about the substance of the supreme court. will roe v. wade survive? will universities be allowed to use race in admissions? may bakers and other small business owners say to gay people, "you're not allowed in here" and the court says that's

okay. >> just -- >> not true? >> the idea that there's a contention that bakers don't allow gay people in their shops, that's never been the issue and it's not the issue. >> they can go in, they just can't buy anything. >> to bake a cake for a religious -- for a ceremony that violates their religious tenets. that's a fundamentally different thing than walking in the door and quit trying to be extremist on these things when that's not the issue and you know it's not the issue. >> i totally know it's the issue. for example -- >> people walking into a bakery? no one is saying you can't walk in and buy a cupcake in a bakery, nowhere. no one. >> so there are some products gay people can buy and some products they can't. >> it's not a matter of products. it's a matter of using someone's artistic talent to design a specific purpose. quit trying to distort it. >> how about when an inn owner says my inn is a product of my artistic and personal vision so an inn owner says i don't want gay people staying here?

that's what the next case is about. >> and i would probably side with you on that because if you open your inn up for public accommodation, you have to take anybody. but if you're asking someone to specifically perform an act in concert with an act that is contrary to their religious values, that's different and you know the difference. >> i know -- rick -- >> that's not what you stated. >> rick, you keep saying these cases are so easy. watch what happens. watch how gay people are being denied service. >> i will watch that. i will watch that. >> denied service. >> because i will stand with you on that. >> just like after the civil rights act passed -- >> i don't know anybody that shares my philosophy that won't stand with you on that issue. >> well, this is why these hearings are interesting. >> don't distort it. >> forget the hearing, let's just listen to you guys. >> job king is with us as well. it looks like the president and the republican majority have the

votes to get judge kavanaugh confirmed. >> you look at the first day yesterday it was all about the democrats protesting, trying to throw a wrench in the wheels, complaining about the process, complaining they haven't been given access to the documents but in honesty, as we get to substance today and these legitimate debates and at times legitimate conservative complaints that issues are being exaggerated but this is about two people, really, it's about two people, especially now that arizona's former senator jon kyl is coming back to the senate to take the mccain seat. he's a reliable deputy of mitch mcconnell. mitch mcconnell knows he has the vote. he was brett kavanaugh's sherpa. he was helping guide the nomination so we know where he'll come out. this comes down to susan kosan s and lisa murkowski who have said i respect judge kavanaugh, i've had good meetings with judge kavanaugh, on the issue of roe v. wade he says stare decisis. if the democrats can not swing those senators, brett kavanaugh

will be the next supreme court justice. >> there's also a couple democrats who are also in a very difficult situation to vote against. >> i think there are three or four red state democrats up for reelection this year. they're going to wait. those democrats will hold back hoping that either collins or murkowski cracks but if they don't i believe you'll see -- >> it used to be only one. >> if they stay sand say they'll vote yes i suspect you'll see two or three of those democrats say i'll vote yes, too. >> we see senators there beginning to arrive within minutes the questioning of judge kavanaugh will begin and general saki uc -- jen psaki used to work for president obama. elections do matter in the united states and they have enormously significant consequences. >> i think we can be honest that we thought hillary clinton was going to win in 2016, almost everyone did. when merrick garland was treated so unfairly by the republican senate the assumption was either

merrick garland or maybe even a more liberal justice would be nominated by hillary clinton. that's not what happened but i think this is a reminder, there's a lot of objectivin iiv democratic senators today. they know they won't keep brett kavanaugh being on the supreme court. some of them may vote for him, i agree what many said. but they want to show the base they are fighting. they want to show democrats out there that this is something they should stay tuned into because this matters and republicans in the senate are treating this process unfairly and they want to wake people up to what the consequences are in two months so that is very present today. i'll be interested to see what people like senator klobuchar bring to the table today. there hasn't been a lot of attention on her line of questioning yesterday but she raised the key question here which is we have this president serving in a time where he could -- i know he may not be indicted but his whole institution is under an investigation and he is saying

they should live by a different set of laws and she raised that question yesterday. that will come up a lot today. >> let's take a quick break. the hearing is about to begin. the actual questioning of judge kavanaugh will start. much more right after this.

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grassley will call this session to order. the questioning will begin -- i assume he will go first. the ranking member, senator dianne feinstein of california will go second. then there's 21 senators all together and they will have a lot of time to ask tough questions as tough or as easy questions as they respectively want. i anticipate very, very tough questions from the democrats. you've been covering the supreme court for a long time, jean. how significant is this? if he's confirmed -- and all anticipation is he will be confirmed -- that makes it 5-4. >> and a solid 5-4. justice kennedy was a conservative but he was -- his vote was always in play for the liberal side in play on affirmative action, in play on abortion rights.

brett kavanaugh's vote won't be in play the same way which will pull the court to the right on social policy issues and probably executive power issues. we know he won't reveal too much and the one thing that democrats could count on if they can count on anything is something new coming out. something surprising, for example, like what happened with clarence thomas but that didn't sink him and i think that what we'll see is democrats trying to get him to reveal himself but a certain inevitability here. >> and the other thing we should keep in mind here is the context. for a generation republicans have been able to build up and to make a case to the republican base that the supreme court

matters and that they should vote on it, that they should focus singularly on that issue and for democrats it just hasn't been the case. with this nomination, because it's so pivotal, the democratic groups, the sort of liberals, have been pushing their democratic-elected officials on this committee and then more broadly to be tougher, to do things that republicans have done before and we're going see that play out in the questioning of all democrats, particularly those who are thinking about 2020. >> judge kavanaugh now walking in. they're getting ready to sit down and chairman chuck grassley will gavel this session into order. abby, i just want to point out that for the president -- for president trump already neil gorsuch his first supreme court nominee confirmed. he's a young man who has 30 or 40 years on the supreme court, looks like judge kavanaugh will be confirmed but let's see what happens in the course of these congressional hearings which are

significant. and if you listen to white house officials, and you cover the white house, there could be a third trump appointee, a nominee for the supreme court in the not too distant future. >> this is the whole ball game for president trump. this is one of the main reasons why he was able to get republicans to back him during the campaign. he was able to say here is a long list of people i would be willing to appoint and don't forget we might have two, maybe three, 23 you talk to president trump he'll say an even higher number than that. but most people think two, maybe three in his term and if he gets a second term, probably more so. now suddenly everything is fallen into line, everything works like clockwork in a traditional fashion because they know they cannot mess this up. this is so important to the

republican base and it's so important to president trump's legacy putting aside everything else. >> rick santorum, you wanted to weigh in. >> i would make a point. republicans have haven't opposed supreme court nominees like democrats have opposed this nominee. >> but it's true conservatives have been focused on it as a voting issue. that's what i mean. >> it's a very, very important issue. >> they blocked merrick garland. >> well, that had everything to do with the fact he was nominated during the last year of a presidential term -- >> but they stopped him from get ago hearing. >> i agree traditionally it's been a large bipartisan vote. i agree. >> not a large bipartisan vote. >> ruth bader ginsburg is almost unanimous, steven breyer was confirmed in almost a week and a half. >> another era. that's gone. >> you're right. the era is gone and what's happening here and what we saw yesterday is a very, very bad sign. >> chuck grassley is about to

get this session into order. they allow the photographers a minute or two to take pictures and the session will begin, chuck grassley has been on time as opposed to many others here in washington. he said it will start at 9:35. you see the photographers will be taking a few more pictures. john, while we wait for this session to begin, you only need 50, it's a republican vice preside president's, to confirm. that's because the democrats changed the rule. here's chuck grassley.

we had three people who had the hon november of introducing judge kavanaugh, senator rice and attorney lisa blatt. and we heard from judge kavanaugh. nbc news reported democratic members of the committee plotted with the minority leader to disrupt the hearing yesterday. democratic senators interrupted the hearing 63 times before lunch. in the audience, 70 people were arrested yesterday who were following their lead. all probably very constitutionally prepared to do that. doing what the constitution says the right of freedom of speech. but we're also able to conduct our hearing the way it should be conducted. [ yelling ]

>> protects the rights of people with disabilities. of women! we need to protect people of color. >> it was only our time as committee members that we wasted on disruption and disorder over procedural matters. [ yelling ] >> sham president, sham justice! stop the slaughter of our children. sham president, sham justice. >> senator grassley, i take offense. i called out senator durbin.

i don't see how you can say i'm working with senator durbin. i called him out specifically. we are not working with the democrats. we are working for ourselves. >> it was our time as committee members yesterday to make our case, today is different. today is the day that the american people are supposed to hear from the nominee today we'll begin our questioning of judge kavanaugh. we'll get through all members' first rounds of questions today no matter how long it takes. members are allotted 30 minutes for each round. if your time expires, your remaining questions may be continued, of course, in the second round tomorrow. we'll take a lunch break as well as probably two other 15-minute

breaks throughout the day. for now, let's plan our first break after five senators or so have completed their questions. there is a floor vote that's already scheduled. this would be a 30-minute break for vote and lunch but judge if you would like to take a break any other time, let us know. with that, i'll start the questioning of my 30 minutes. judge. for the last 12 years you have

served as a federal circuit judge on one of the most influential circuits in america. you have offered 307 judicial opinion opinions totaling more than 10,000 pages of record. you have decided some of the most pressing legal issues facing our country. the supreme court of the united states, the one you're nominated to be on has adopted illegal position, your legal position from at least 12 opinions. the senate judiciary committee has received dozens of strong letters of support from hundreds of people, many of whom you know best from all across the political and ideological spectrum and the american bar association has given you its highest rating, unanimously well qualified. my democratic colleagues have

said that this is the gold standard of judicial nomination. there is no dispute that you're one of the most qualified supreme court nominees. some people say the most qualified, and i don't disagree with their judgment. and that could be for anybody coming before the united states senate. i'm not the only one who says that because we have a letter from robert bennett. surprisingly president clinton's attorney and your opposing counsel during the independent counsel investigation of president clinton. he wrote a very strong letter in support of your confirmation. quote, brett is the most qualified person any republican president could possibly have nominated. with the senate fail to confirm brett it would not only mean passing up the opportunity to confirm a great jurist but it would undermine civility and

politics twice over. first in plain politics with such an obviously qualified nominee and then again in losing the opportunity to put a strong advocate of decency and civility on our nation's highest court. mr. bennett also speaks highly of your integrity and to your fairness and open mindedness and so without objection i would enter that letter into the record. now to a question. i would imagine your 12 years of judicial service on the second highest court in the land has given you plenty of opportunity to think about my first question which is what makes a judge a good one and what influences in your life have shaped your vision of how a judge could go about doing his job? >> thank you, mr. chairman.

i think the first quality of a good judge in our constitutional system is independence. independence comes directly from article 3 of the constitution. the independence of the federal judges is guaranteed by the framers in our life tenure and our protection from pay reduction so because we have life tenure we are independent and immune from political or public pressure. so i think the first thing that makes a good judge is independence not being swayed by political or public pressure. that takes some backbone. that takes some judicial fortitude, the great moments in american judicial history. the judges had backbone and independence. you think about youngstown steel, you think about "brown v. board of education" where the

court came together and knew they were going to face political pressure and still enforced the promise of the constitution. you think about united states versus nixon which i've identified as one of the greatest moments in american judicial history where chief justice burger, who had been appointed by president nixon, brought the court together in a unanimous decision to order president nixon in response to a criminal trial subpoena to disclose information. >> there's great moments of independence and yunnan timty are important. respect for precedent is another one. precedent is not just a judicial policy. it's sometimes stated that it's just a policy. precedent comes from article 3 of the constitution. article 3 of the constitution refers to the judicial power. what does that mean? what does that judicial power mean? judicial power, you look at

federalist 78 and what's described there as a system of precedent. so precedent is rooted right into the constitution itself and is dictated to pay heed and rules to precedent. beyond that, being a good judge means paying attention to the words that are written. the words of the constitution, the words of the statutes that are passed by congress. not doing what i want to do. not differing when the executive rewrites the laws passed by congress but respect for the rules passed by congress, respect for the words put into the constitution itself. that's part of being a good judge, that's part of being independent, that's part of precedent. i would say being a good judge there are human qualities in interaction.

i don't make decisions by myself. every case has been in a panel of at least three judges. and you learn from each other when you're deciding cases, you work from each other when you're deciding cases and so having collegiality and civility as justice kennedy showed us so powerfully repeatedly with how he conducted himself over the years. so i think i've tried to be a very collegial judge. i've tried to be civil.

i want, mr. chairman, the losing party, the losing party in every case to come out and say kavanaugh gave me a fair shake, he was well prepared, he wrote a clear opinion, he explained everything, i disagree but at least i get it so i want the losing party and both parties to walk out at oral argument saying he gave me a share fake and i think i've done that for 12 years. everything you do as a judge matters in terms of being a good judge -- oral argument, writing opinions, how you decide. so those are the qualities. the last thing i always remember is the thing my mom told me in the first instance. judging is not just about theory. it's not theory. it's not just what a law review article is. judging 1 real people in the

real world in every decision we make no matter how high-minded it might sound affects real people in the real world with ral interest and we have to remember that and how we explain the decisions. thank you, mr. chairman. >> following up on the wise words of senator sass yesterday on separation of powers, your record before the senate includes more than 10,000 pages of a judicial writing over your dozen years. we have over 440,000 pages of e-mails and other records from your legal service at the white house and judge starr and you have written extensively on the issue of our constitution's separation of power among three branches and a key component of the separation of powers is the independent judiciary. obviously everybody learns in

eighth grade civics about judges interpreting law. the judiciary must continue to be the least political and least dangerous branch. a judge's sole job is to find and apply the law evenly and fairly without regard to the president who nominated him, the senators who voted for him, the parties before him and the political consequences of his judicial decision. so, judge, let's discuss judicial independence from the executive branch. no one, not even the president, is above the law. some of my colleagues have criticized your views of presidential authority suggesting wrongly in my opinion that your views of presidential authority would not allow any meaningful check on completion te please tell us what judicial independence means to you including whether you have any

ruling against a president who appointed you and against the executive branch in any case before you. you partly talked about independence, but apply it specifically to ruling against a president or executive branch generally. >> thank you. you're correct, no one is above on the law in our constitutional system. federalist 69 hamilton makes clear all the ways that the executive branch is designed by the framers of the constitution was different from the monarchy. under our system of government, the executive branch is subject to the law, subject to the court system, and that is an important part of federalist 69, it is an important part of the constitutional trustructure. in general on so too as judges we are separate from the congress. we are not supposed to be influenced by political pressure from the executive or from the

congress. we are independent. we make decisions based on law, not based on policy, not based on political pressure, not based on the identity of the parties no matter who you are in our system. no matter where you come from. no matter how rich you are, how poor you are, no matter your race, your gender, no matter your station in life, no matter your position in government. it is all equal justice under law. and again, we'll get our examples in history. i always will go back to the great moments in our history where these principles which sound abstract if you are just describing them were actually implement implemented. i go back to youngstown steel where the supreme court rules that president truman has

violated the law by seizing steel mills. this is a time of war where lots of americans were killed. and the supreme court is under pressure to defer to the president's war effort. and in a 6-3, but what is interesting to me justice clark, we don't usually talk about justice clark in that decision. why is he important? he was appointed by president truman to the supreme court. what a moment of judicial independence there to rule in that case. you think about justice jackson who had been working for president roosevelt and he dissents and says letting racism like this is like letting a loaded weapon lie around. dissents against president roosevelt's decision. [ yelling ] justice jackson's -- >> ask him to suspend.

>> justice jackson's concurrence in youngstown which is of course what has become the law of that three part test, cat gloegory o two and three, but he had taken positions contrary to that one when heed had worked in the executive branch, yet when he is a judge, he sees it differently as an independent judge. how about chief justice berger? united states versus nixon. writes the opinion, unanimous. moments of judicial independence. so it is resisting public pressure, political pressure, it is treating everyone equally no matter where you are, what station. when i became a judge on the d.c. circuit, i had a case homdon versus the united states.

who is homdon -- [ yelling ]. [ yelling ] [ yelling ]. >> so in the homdon case, it is one ever bof bin laden's associ. you will never have a nominee -- 34r cha mr. chairman, should i proceed? >> this is coming out of my time, but that is okay. let these people have free

spreech and ent speech and interrupt the over 300 million people listening. this is your opportunity to speak to the american people and for them to make a judge about it. if they want to affect what the other 300 million people hear from you, then that is just too bad. you proceed now. >> homdon is one of bin laden's associates involved before september 11th, worst attack ever on american soil. he is prosecuted before a military commission, signature prosecution of the bush administration. comes to the d.c. circuit. i'm on the panel. i write the opinion saying that his military commission prosecution is unconstitutional, violates ex-ppo f ampt cto principles. you will never have a nominee ruling that way. why did i rule for someone who had been involved in the

september 11th? because the law compelled it. justice kennedy showed us in the texas versus johnson case. we don't make decisions based on who people are or their policy preferences or the moment. we base decisions on the law. justice kennedy's example of independence is something that i have tried to follow. and it means you are not a pro -- as i said yesterday, not a pro plaintiff, pro defense, pro prosecution or pro defense judge. i'm a pro law judge. that is part of being an independent judge is ruling for the party no matter who they are so long as the party is right. if you walk into my courtroom and you have the better legal afrgt arguments, you will win. >> i think you answered my next question based upon what you said about homdon, but there are

probably other examples, you don't need to go into detail, but you have -- >> [ yelling ]. >> -- president bush a pointed you. are there other cases that -- there has been other cases presumably that you've ruled against the administration of the person that appointed you. >> absolutely, mr. chairman. there were a slew of cases on everything from freedom of information act to some of the administrative law cases. the homdon is the one that comes to mind most because of the importance of that case yet i ruled that it was unlawful. >> now, did anyone ask you to make any promises or assurances about the way that you would rule in certain cases? >> no. >> were you asked about your views on roe v. wade?

>> no. >> [ yelling ]. >> we were talking about separation of powers. have you ever written any decisions where you used the 10th amendment? i'm talking about division of powers between federal and states. >> most that come to the d.c. circuit are at the national level therefore involving between the executive, judicial branches. of course federalism is a critical part of our constitutional structure as well. the gene juenius of our system f federalist 39 described that we have both a national and federal government simultaneously. and the house of representatives really represents in some ways the national part, proportional

representation. this body with two senators from each state represents in many ways the federal part. each state represented equally. and the federalism system by which the states are allowed to regulate local matters in some of the commerce clause cases such as united states versus lopez and united states versus morrison reinforce the idea that there is a core of authority that is exclusively in the province of the states an beyond the scope of the federal government. the 10th amendment -- >> [ yelling ]. >> the 10th amendment reinforces the structure of federalism that is in our constitutional system. it is important always to remember the role of the states in our constitutional systems, and it is important to recognize as individual citizens something we often forget particularly in a process like this. our rights and liberties are proiktd protected by the federal

constitution and by the federal court, but they are also protected by state constitutions and state courts. a great judge on the 6th circuit has written a new book about using state constitutions to help protect your individual liberties and rights too. this whole document through the separation of pow erfe powers o federalism tilts toward liberty. >> [ yelling ]. >> we've talked about your independence from a president. there is also the question of independence from the legislative branch equally as important. you're going to be asked about your personal views on a variety of topics and whether you believe various supreme court cases were correctly decided, presumably this is because senators are going to try to predict how you will rule in cases before you. the idea is that if you agree with your personal views on -- if they glee with your personal views on particular issues of more withdrawality or on supreme court precedent, they maybe would vote t