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 to confirm you.

if not, they might not. of course that is improper. judges should never promise their future votes in exchange for a senator's vote for they said. if you answer these questions about your views on specific supreme court cases or public controversies of the day, you'd be showing the opposite of independence from the legislative branch, politicians can make promises about how they will vote on issues, judges by their very nature of the job should never promise any outcome. if a nominee answers these questions, it threatens the undermining judicial independence. of course there may be times where it is appropriate to reconsider certain decisions especially if more recent opinions have called into question the rationale of the original decisions. so with this in mind, i'd like to explore the approach that you would take towards supreme court precedent. could you tell us your views on

the value of precedent? i think you've already done that. but if you want to expand on it, go ahead. have you ever followed precedent of the supreme court when doing so conflicted with your personal beliefs? >> my personal beliefs are not relevant to how i decide cases. the role of precedent in our system which is rooted in article 3 of the constitution, not just a judicial policy, it is to ensure stability in the law which is critically important. it is also to ensure predictability of the law. people who order their fairs around judicial decisions need to know that the law is pre-dinktsabpredic predictable whether an individual ork busine business worker. people rely on the decisions of the courts. so reliance interests are critically important to consider as aer matter of precedent.

they are one of the reasons we have the system of precedent so that people can rely on the decisions. precedent also reinforces the impartiality and independence of the judiciary. the people need to know in this country that the judges are independent and that we're not making decisions based on policy views. part of that is to understand we're following a system of precedent, of what has been done before. the court every time someone gets on, it is not just bouncing around to what do i think is best. it is what is the precedence of the supreme court is always part of the analysis and an important part. and for 12 year, i've been applying precedent of the supreme court and of my court. every day for 12 years, i haven't been getting up saying how can i rewrite the law. i've been getting up for 12 years saying okay, how can i apply this fourth amendment precedent to this fact pattern that dos before me.

or how can i apply this first amendment precedent to this fact pattern that comes before me. so precedent is the foundation of our system, it is part of the stability. it is ensuring predictability and it is foundational to the constitution is article 3 and federalist 78 make clear. >> you'll be asked by other members what precedent you like and don't like, but you know it is inappropriate for a nominee to answer those questions. and this refers to justice ginsburg, she said a judge sworn to decide impartiality can offer no forecast, no hints for that would show not only disregard for the specifics of a particular case, it would display disdain for the entire

judicial process. the underlying reason for this of course is that making promises or giving hints undermines the very independence that we discussed. would you agree with that? >> i do, senator, mr. chairman. and one of the things that i have to remember sitting in this seat is that this moment is a moment of judicial independence with how i interact with this committee. and what i've done and in each of the jobs i've had and particularly as a judge over on the last 12 years, but also in the executive branch, i always ask myself can i tell people i'm working with how has it been done before. how has it been done before. so as a judge, how has it been done before is precedent. when i'm sirtie in sitting hered all the nominee precedence. i read thurgood marshall's

hearing and i've rid the hearings of the eight justices currently sitting on the supreme court. it is what i call nominee precedent. so all the nominees currently, all the justices have made clear a couple things. first of all, they can't discuss cases or issues that might come before them. as justice ginsburg said, no hints, no forecast, for previews. that also means with respect to at least the vast jobody of supreme court precedent going back, you can't give a thumbs up or thumbs down on the case. justice kagan said repeatedly no thumbs up or thumbs down when she was asked what do you think about this case, what do you like about that case. i liked her formulation, no thumbs up or thumbs down. that nominee precedent is part of the independence of the judiciary snd and that n and thi need to adhere to.

one of my jobs is not to advance my own interests, but remember i'm a representative of the judiciary as a whole and i have a responsibility to do judicial independence right here right now as a nominee. so following that nominee precedent will be critical. there is an exception that the eight justices have drawn currently sitting on the court if you read all the hearings for some older cases, and i'll be happy to -- older cases that where nominee precedent has allowed them to talk about a few older cases. and again, why do we do this, when eight justices of widely ranging views do this, there must be a reason. the reason is judicial independence. what does that mean? it means two things in this context. one, the litigants who come before us have to know we have an open mind, that we don't have a closed mind, that we haven't committed something in this process that is going to effect how we decide a case because we

feel bound by what we promised to this committee. and believe me, judges do feel bound by what they said to this committee. so if i say something and a case comes before me five years from now, i'm going to feel morally bound by what i said here. and if i've crossed the line of what i should say, then i'm not going to have an open mind in that case. that is a violation of judicial independence. secondly as chief justice roberts described, if i get into a process that appears to be a bargaining process where i say i'll agree with this decision in exchange for your vote, it is never that explicit, but as chief justice roberts described it, that is kind of what seems to be going on sometimes. well, that is a complete violation of judicial independence because then the judges aren't making the decisions based on their reading of the law, it is really as chief justice roberts described it, it is the senate or senate

judiciary committee really sending a nominee as a delegate to the judiciary and doing what the senate judiciary committee thinks is the right thing to do. chief justice roberts says doing that would be a violence of judicial independence. that precedent weighs heavily on me as a nominee here because it is rooted in judicial independence. and i've said repeatedly already that i'm going to be an independent judge. well, i have to be an independent nominee as well, so i will have to adhere to the lines drawn by those prior nominees, mr. chairman. >> with only 25 seconds left, i'll reserve that time and go to senator feinstein. >> thank you very much, mr. chairman. good morning, judge. i'm sorry about the circumstances but we'll get through it. i wanted to talk to you this morning good guns and go back to rowe roe v. wade if i might.

my office wrote the assault weapons legislation in 1993. it was law from '94 to 2004. and essentially it prohibited the transfer, sale and manufacture of assault weapons. it did not at the time affect possession. i happen to believe that it did work and that it was important. and i have watched case after case and i think i mentioned earlier school shootings which i never thought this would happen in our country, that someone would bring a semi automatic assault weapon into a school and just mow down children and st f staff. so i've been very interested in your thinking on assault weapons. you specifically argued that the

d.c. assault weapons ban was unconstitutionkons tugconstitut because you said the weapons were in common use. what did you base your conclusion that assault weapons are in common use and what evidence or study did you use to do that? >> thank you, senator feinstein for the question. i understand of course your role on that issue and your long leadership on that issue. appreciate that. i've faced a decision whereas in every other decision just about on the d.c. circuit, i had to follow precedent. precedence of the supreme court. i don't get to pick and choose which supreme court precedents i get to follow. i follow them all. and so in the second amendment context, the supreme court in the heller decision written by justice scalia had a held that there was an individual right to

keep and bear arms. and then in explaining what that meant and what exceptions would be allowed to that right, justice scalia's opinion in part three went through this does not mean that there is no gun regulation permissible. so that was an important part of the opinion, part three of the supreme court's opinion, where it pre-identified a number of exceptions that would be allowed. felony possession laws, conceal carry, laws possession of the mentally ill, possession of guns in schools, possession in certain kinds of buildings. he pre-identified that. as to the weapons, the way i understood what he said there and what was said in the mcdonald case later was that dangerous and unusual weapons could be prohibited.

and what he referred to specifically is machine guns could be prohibited. so it is very important to recognize under the heller decision machine guns can be prohibited. and machine -- >> they were in the firearms act a long time ago. >> yes, senator. and justice scalia's opinion did not disturb that regulation and in fact specifically reaffirmed that machine guns could be prohibited. the court in heller, supreme court, struck down a d.c. ban on hand guns, most of which are is semi automatic. >> let me interrupt you. i think we're on totally different wave lengths. i'm talking about your statement on common use, common use being a justification. and assault weapons are not in common use. >> and justice scalia's opinion

used that phrase and the next sentence talked about dangerous and unusual weapons. and the court in heller itself, the supreme court, struck down a d.c. ban on handguns. now, most hand guns are semi automatic. something not everyone appreciates. achbtd t and the question came up semi automatic rifles and the question was can you distinguish as a matter of precedent, again, this is all about precedent for me, and if you read the mcdonald case, aknd i concluded that it could not be extinguished as a matter of law and semi automatic rifles are widely possessed in the united states. there are millions and millions and millions of semi automatic rifles that are possessed. so that seemed to fit common use

and not being a dangerous and unusual weapon. that was the basis of my dissent. in a nutshell, the basis of my dissent was i was trying to follow strictly and carefully the supreme court on precedent. and i know you've read the -- >> you're saying the numbers determine common use? common use is an activity, it is not common storage or possession. it is use. so what you said was that these weapons are commonly used. they are not. >> they are widely possessed in the united states, senator. and they are used and boy saysesays -- possessed, but the question is are they dangerous and usual. all weapons can dangerous. are they unusual. and given how prevalent they are in the united states, it seemed under justice scalia's test and if you look at mctdonald, i wan

to reiterate that supreme court said that machine goveruns cann banned. >> i'm talking about the heller case. and you argued that it was unconstitutional to ban assault weapons because they are in common use. and that i believe was your s t dissent in the case. >> yes, and i was referring to some kinds of semi automatic rifles that are banned by d.c. are widely owned in the united states. and that seemed to be the test that the supreme court had set forth in held othler and mcdo t a mcdonald case. whether i agree with that test or not was not the issue. i have to follow the precedence

of the supreme court as it is written and that's what i tried do. it was a very long opinion. and i also made clear the end ev of the opinion, i'm a native of this area, an urban suburban area, i grew up in a city plagued by gun violence and gang violence and drug violence. so i fully understand as i explained in the opinion the importance of this issue. i specifically referenced police chief cathy lanier's goals of reducing gang and gun violence was something i certainly applauded. but that i had to follow the precedent of the supreme court in that case. and as i read it, that's what it said. >> how do you reconcile what you've just said with the hundreds of school shootings using assault weapons that have taken place in recent history? how do you reconcile that? >> senator, of course the violence in the schools is something that we all detest and

want to do something about. i know there are efforts to make schools safer. at my girls' school they do a lot now that are different than just a few years ago in terms of trying on to harden the school and make it safer for everyone. handguns and semi automatic rifles are weaponed used for hunting and self-defense, but as you say, senator, you rightly say they are used in a lot of violent crime and cause a lot of deaths. hand guns are used in lots of crimes that result in death and so are semi automatic rifles. that is what makes this issue difficult as i said in the last two pages of my dissent in heller. i fully understand the gang violence, gun violence, drug violence that plagues various cities including washington, d.c. this was known as the murder

capital of the world for a while, this city. and that was a lot of handgun violence at the time. so i understand the issue. but as a judge, my job as i saw it was to follow the second amendment opinion of the supreme court whether i agreed with it or disagreed. at the end of the opinion, i cited justice kennedy's quote which i read guiding light for the lower court judges and all judges. >> let me give you a couple other quotes because i'm going to change the subject. do you agree with justice o'connor that a woman's right to control her reproductive life impacts her ability to, quote, participate equally in the economic and social life of the nation, end quote? >> well, as a general proposition, i understand the importance of the precedent set forth in roe v. wade.

so roe v. wade held and reaffirmed in planned parenthood versus casey that a woman has a constitutional right to obtain an abortion before viability subject to reasonable regulation by the state up to the point where that regulation constitutes an undue burden on the woman's right to obtain an abortion. and one of the reasons for that holding as explained by the court in roe and also in planned parenthood versus casey more fully is along the lines of what you said, senator feinstein, about the quote from justice o'connor. so that is one of tfof the ratis that undergirds roe v. wade. >> let immediate give you another rationale. in the 1950s and '60s before roe, deaths from illegal

abortions in this country ran between 200,000 and 1.2 million. that is according to the gutmacher institute. a lot of women died in that period. so the question comes, and you have said today -- not today, b but it's been reported that you have said that roe is now settled law. the first question i have, what do you mean by settled law. i tried to ask earlier, do you believe it is correct law. have your views on whether roe is settled precedent or could be overturned and has your views changed since you were in the bush white house? >> senator, i said that it is settled as a precedence of the supreme court and entitled respect under stare decisis.

and one of the important things to keep in mind about roe v. wade is that it has been reaffirmed many times over the past 45 years as you know. and most prominently, most importantly, reaffirmed in planned parenthood versus casey in 1992. and as you well recall, i know when that case came up the supreme court didn't just reaffirm it in passing, the court specifically went through all the factors of stare decisis in considering whether to overrule it. and then joint opinion of justice kennedy, justice o'connor and justice sutter at great length went through those factors. that was the question presented in the case. >> could i interrupt you since you mentioned stare decisis and i sat on nine of these hearings, and when the subject comes up, the person says i will follow stare decisis. and they get confirmed.

and then of course they don't. so i think knowing going into it how do you make a judgment on these issues is really important to our vote as to whether to support you or not. because i don't want to go back to those death tolls in this country. and i truly believe women should be able to control their own reproductive systems within obviously some concern for a viable fetus. >> and i understand your point of view on that, senator. and i understand how passionate and how deeply people feel about this issue. i understand the importance of the issue. i understand the importance that people attach to the roe v. wade decision, to the planned parenthood versus casey

decision. i don't live in a bubble. i understand -- i live in the real world. i understand the importance of the issue. >> well, my staff just passed me a note. have your views about whether roe is settled precedent changed since you were in the bush white house? yes or no? >> well, i'll tell you what my -- i'm not sure what it is referring to about bush white house, so i will tell you what my view right now is. which is it is an important precedent of the supreme court that has been reaffirmed many times. and this is the point i want to make that i think is important. planned parenthood versus casey reaffirmed roe and did so by considering the stare decisis factors. so casey now becomes a precedent on precedent. it is not as if it is just a run-of-the-mill case that was

decided and never been reconsidered, but casey specifically reconsidered it, applied the stare decisis factors and decided to reaffirm it. that makes casey a precedent on precedent. another example of that because you might say are there ear che cases like that, miranda. it is reaffirmed a lot but in the dickerson case chief justice rehnquist writes the opinion and reaffirming miranda. even though chief justice rehnquist by the way had been a crit critic, he decided that it had been precedent too long so he reaffirmed it. so precedent on -- >> sorry to interrupt but i wat to switch subjects. what would you say your position today is on a woman's right to

choose? >> as a judge, it is an important precedence of the supreme court. by it i mean roe v. wade and planned parenthood versus casey. been reaffirmed many times. casey is precedent on precedent which itself is an important factor to remember. and i understand the significance of the issue, tjurs significance. and i do understand the real world effects of that decision as i try to do of all the decisions of my court and of the supreme court. >> well, i thank you for thatuy. let's go to presidential power for a moment. you were part of ken starr's independent counsel team which conducted a sweeping investigation into possible wrongdoing by president clinton and the first lady.

at the time you argued for aggressive questioning of the president. you did not take the position that president clinton was immune from investigation. since then, you have taken the opposite position. in fact you have said that, and i quote, if the president were the sole subject of a criminal investigation, i would say no one should be investigating that at all. what did you mean by that and what are the circumstances where a sitting president could be subject to criminal investigation? >> i appreciate the sign there. the last sign i should have mentioned while i was up, the second amendment sign actually had a brackets around part of my xwoe quote. and not sure it was the exact quote. >> is this accurate? >> here's what i was saying. the last one may or may not have

been being a accurate, i just w point out that it had brackets for my quote. what happened after the starr investigation that i worked 5 1/2 years in the white house, so let me give you could be tnt i'll get to your question. i worked in the independent investigation and that is obviously difficult, controversial, a moment for our country that i wish hadn't happened. we all wish it hadn't happened. and i reflect on that, i wrote a georgetown university law journal article in '99 refleblgreflec reflecting on some of my thoughts about that. this seems to be a tendency of mine, go through an experience, write an article reflecting on it. and then i work in the bush white house for 5 1/2 years and i wrote an article in 2009 when president obama is in office i should point out.

and i reflected on a number of things i had learned working the independent counsel office and then work management white house. and i thought there were a number of things congress could take a look at that i had experienced. one of them was i proposed time lines for consideration of judicial nominee himself if i proposed 180 day up or down vote for every judicial nominee. that was something that i thought would avoid controversy and have rules of the road set in advance and i proposed that specifically for congress to consider. other aspects, i said -- another thing i proposed was for congress to consider whether it should look at clinton versus jones or the principle of clinton versus jones. so you say a president is subject to civil suit while in office, paula jones suit. that was a ver controversial decision, but the supreme court made clear at the end of the decision congress could provide extra deferral of suits, not

immunity, but deferral of suits for presidents if congress so wanted. and so in the minnesota law review article, i put out some ideas about whether congress may want to think about that. and why did i do that? i think senator durbin asked yesterday what changed that made me think about that. what changed was september 11th. that is what changed. so after september 11th, i thought very deeply about the presidency and i thought very deeply about the independent counsel experience. and i thought very deeply about how those things interacted. and i thought very deeply about seeing president bush when he came into the oval office on september 12th, 2001 in the morning, president bush said this will not happen again. this will not happen again. and he was of single minded

focus every morning for the next seven years for president bush was still september 12, 2001. single minded focus. and then thinking back to the independent counsel experience in august of 1998, so i proposed some ideas for congress to consider. here is the bottom line, they were ideas for congress to consider. they were not my constitutional views. if a case came up that where someone was trying to say this is a constitutional principle, i would have a completely open mind on that because i've never taken a position on the constitution on that question. i've only put out proposals for you all to study to think about the president fighting a war, leading a war, and a president subject to say ordinary civil lawsuits as in the cloointon versus jones. >> you're becoming very good, you are learning to filibuster. but let me ask this precisely.

the supreme court has uhe n unanimously ruled that the president can be required to turn over information. it held the subpoena for the tapes of oval office conversations that revealed nixon's efforts to cover up the watergate break-in. you have said that the nikxon case might have been wrongly decided. what u.s. v nixon wrongly decided? in your view. >> so that quote is not in context, it is a misunderstanding of my position. i have repeatedly called u.s. v nixon one of the four greatest moments in supreme court history. so i have always identified marbury versus madison, youngstown steel, brown versus board of education and united

states versus richard nixon. and why have i -- brown versus board by the way the single greatest -- >> was it rightly so i have sa court's holding that a criminal trial subpoena to a president in the context of the special counsel la counsel regulations in that case for information, a criminal trial subpoena for on information under the specific regulations in that case, i have said that holding is one of the four greatest moments in supreme court history. so not only -- i can explain how that misunderstanding came up because i know there was a news story about that and that is just not correct impression of my views. my views have been consistently why was it one of the greatest moments? because of the political pressures of the time, the court

stood up for drjudicial independence in a moment of national crisis. the supreme court -- we need the supreme chourt to decide the things that we can foresee, but one of the things that is really important, we'll have crisis moments on things that we can't even predict. and we need people on the supreme court who are prepared for that and u.s. v nixon -- >> my time will run out very quick. let me ask you this. can a sitting president be required to respond to a subpoena? >> that is a hypothetical question about what would be an elaboration or a difference from u.s. v nixon's precise holding. and i think going with the justice ginsburg principle, which is really not the justice ginsburg alone principle, it is everyone's principle on the current supreme court, and as a matter of cannons of judicial independence, i can't give you an answer on that hypothetical question. >> so you can't give me an

answer on whether a president has to respond to a subpoena from a court of law? >> my understanding is that you're asking me to give my view you on a potential hypothetical, and that a is something that each of the eight justices when sitting in my seat declined to decide potential hypothetical cases. i can tell you about the u.s. v nixon precedent. and i did about chief justice berger's role in forges a unanimous opinion and really all the justices worked together on that chief justice berger who had been appointed by president nixon writes the opinion in u.s. v nixon, 8-0 rehnquist reduced ordering nixon to disclose the tapes. a moment of crisis argument i

think july 8, 1974 they decided two weeks later, really important opinion. moment of judicial independence, important precedent of the supreme court. but how that would apply to other hypothetical thres i best follow the precedent of the nominees who have been here before and as a matter of judicial independence not give you a precise answer on a hypothetical that could come before me. >> i understand. thank you very much for being forthcoming. appreciate it. >> i assume you want to reserve your three minutes? >> can i do that? >> yeah. >> i will. >> senator hatch. >> thank you, mr. chairman. before i begin, i'd like to enter into the court three letters and an op-ed supporting judge kavanaugh's confirmation.first letter which i mentioned yesterday in my opening statement is a letter from 41 attorneys who are members of the supreme court

bar. signers include people like lisa blatt, dean maynard and kathleen sullivan. the signers hold a broad range of political policy and juris prudential views, but they speak as one in supporting judge kavanaugh's nomination, unquote. the letter authors write, quote, based on our experience with judge kavanaugh and his work over 12 years of distinguished judicial service, we are confident that he possesses the character, temperament and intellect that will make him an asset to our nation's highest court, unquote. now, the second letter is from carolyn williams, a partner at the svvendoerable d.c. law firm. she writes that she has followed judge kavanaugh's legal career since 1990 when she was the

hiring partner at the firm. and he was a law student. miss williams says that judge kavanaugh, quote, has all the qualities litigants and lawyers hope to find in a supreme courtl acumen, fundamental fairness and decency, abiding respect for precedent, and the rule of law. unquote. i also want to enter into the record a let ter and op-ed by jy le levokitz. in it he writes that judge kavanaugh has a strong commitment to protecting americans' freedom of religion no matter what their faith, unquote. and he should know, he and judge kavanaugh worked together in private practice on a pro bono

religious freedom case representing a jewish synagogue in maryland. and they won the case. vindicating the right of the congregation to build a place of worship in their neighborhood. let me just -- before i begin, judge, i'd like you to keep your answers to my questions as concisely as you can. some of my colleagues have suggested that president trump nominated you because he thought you'd rule in his favor should certain issues come before the court. suppose you had a case involving president trump or an issue near and dear to the president. what assurances can you provide that you will not allow the president's personal views on on a case or personal interest to impact your decision? >> senator, i'm an independent judge. for 12 years i've been deciding cases based on the law and the precedent in each case.

if confirmed to the supreme court, that is how i will do it as well. be part of a team of nine. i'll decide cases based on the constitution, the law, the precedent working with the other eight justices without fear of favor, independently without pressure from any quarter. and the person who has the best arguments on the law and the precedent is the person who will win with me. >> well, thank you. if at the end of this process you are confirmed to the supreme court, which i expect you will be, what sort of loyalty will you owe to the president? how whether that loyalty differ from the loyalty you owe to, say, the american people? >> senator, if confirmed to the supreme court and as a sitting judge, i owe my loyalty to the constitution. that is what i owe loyalty to. and the constitution establishes me as an independent judge bound

to follow the law as written, the precedents of the supreme as articulated subject to the rules of stare decisis. >> you were appointed to the d.c. circuit by george w. bush. i think it is fair to say you were close to president bush. you worked for him for a number of years. you can you give us some example of cases in which you ruled against the bush administration notwithstanding that president bush was the one who put you on the bench? >> senator, the most prominent example is the homdon case, the military commissions case. that was a signature prosecution of the bush administration. they had established with congressional authorization eventually after a unilateral effort didn't succeed in the court, established military commissions. the military commissions were to try al qaeda terrorists who had committed wash crimes and one

case came to us, homdon, and the question was wthe prosecution unlawful because the crime in which he was convicted was not an identified crime as of 2001 when he was alleged to have committed it. a i wrote the pin dwroopinion r his quikts even though it was a signature prosecution of the united states, even though it was a national security case, because that was the right answer under the law. if you are right under the law, you prevail. >> i'd like to turn now you do your work on the bush administration. my democratic be colleagues are demanding to see every piece of paper or every single scrap of paper you ever touched during your six years in the bush administration. in part because they want to

know what role if any you played in developing the bush administration's interrogation policies. well, six years ago, ranking member feinstein who was then the chairman of the senate intelligence committee and a good one at that issued a lengthy report on the cia's detention and interrogation program under president bush. the report detailed the origins, government and implementation of the program. in 2014, a declassified version of that report was released to the public. the declassified version or report runs well over 500 pages. and your name appears nowhere in it. now, i myself spent over 20 years on the intelligence committee. i know the quality of its staff and the work that they do. and i know the ranking member and how diligent she is. if you had played a role in the bush administration's interrogation policies, i think

the ranking member would have discovered it. numerous administration lawyers appear in the report, but not you. and that should tell us something. with that said, i want to ask you for the record, what role if any did you play in developing or implementing the bush administration's detention and interrogation policies? >> the policies that are reflected and described in senator feinstein's extensive thorough report were very controversial as you know, senator. the enhanced interrogation techniques. and legal memos that were involved justifying some of those techniques also were very controversial when they were disclosed in 2004. and i was not involved -- i was not read into that program, not involved in crafting that

program nor crafting the legal justifications for that program. in addition to senator feinstein's report, the justice department did a lengthy office of professional responsibility report about the legal memos that had been involved to justify some of those programs. my name is not in that report, senator, because i was not read into that program and not involved. there were a number of lawyers, this came up at my last hearing, a number of lawyers who were involved including a couple who were then judicial nominees. at my last hearing i recall senator durbin asking about whether i also was likewise involved as these other your additional nominees had been. and the answer was no. and that answer was accurate. and that answer has been shown to be accurate bay ty the offic professional responsibility

report and senator feinstein's thorough report. and i do want to say on senator feinstein's report, that is an important piece of work that collected facts about a program that it is important for us to know those facts for the future. and i know it was an enormous effort and a lot of tough work to get all that information for the intelligence committee. but i have looked through that report and looked through the office of professional responsibility report. i was not read into that program, senator. thank you for asking. >> okay. judge, you've been accused of misleading this committee during your 2006 confirmation hearing regarding your role in developing the bush administration detention policy. now, you have a strong reputation in the legal community for honesty and

integrity. read any one of the dozens of letters we've received supporting your nomination and you would see that right away. now, some of my colleagues may not give you the opportunity to answer this question fully, so i'd like to given you tch give opportunity now. did you mislead the committee in 2006? if not, what is the source of the confusion about your prior testimony? >> i told the truth and the whole truth in my prior testimony. i was not read into that program. the subsequent reports of senator feinstein and office of professional responsibility show that. and that is what i did then. that is the answer now. i was not read into that program. >> as i mentioned in my opening statement, 18 of your former women law clerks have written to

the committee in 150u789 supporr nomination. that is all of your former women law clerks who were not precluded by their current or pending employment from signing the letter. now, these women described the mentoring and encouragement you have given them in their careers. and they say that you are, quote, one of the strongest advocates in the federal judiciary for women lawyers. unquote. quite a compliment. majority of your clerks in fact have been women. i understand that you were the first judge in the history of the d.c. circuit to have an all-female class of clerks. why do you believe it important to encourage young women lawyers and to ensure that both men and women are well represented in the legal profession?

>> senator, i believe in equality. equality for all mens, men and women. also regardless of race, ethnicity. my mom was an example as i described yesterday of breaking barriers. showing me first on racial equality by her example of teaching at mckinley tech, then when she became a lawyer in the late '70s of, there were not many women prosecutors at the time. definitely male dominated. and how she overcame bhar i cac was a great prosecutor, became a great trial judge in maryland. she showed me by her example the importance of women's equality. during college, you've received a letter from ten college friends of mine who are women, women athletes at yale, talked about how i treated them and

women's sports with respect and as equal even when i was in college. you have a letter from 84 women i worked with in the bush administration who talked about my efforts to work with them in the tense environment of the west wing especially after september 11th. >> did you say 84? >> 84 women signed the letter who had worked in the bush white house and worked in that tense environment. but i came to be a judge in 2006, may 2006. and august 2006, linda greenhouse of the "new york times" runs a story in the "new york times" about the scarcity of women law clerks at the supreme court that year. there were seven i believe that year out of 37. and she wrote a story about that. and that seemed to me very on odd and unacceptable. and i started thinking about

what i could do -- first of all, why is that happening and what could i do about it. the problem seemed to me these networks that judges rely on for clerk hiringi inin ins and prof networks were excluding women or at least women weren't fully represented in those. that is true with minorities as well by the way. and so i made sure when i was talking to professors at law schools, i made sure i wanted to see a broad pool of qualified, well qualified applicants including women. and in that year for example fall 2006 which was my first year on the bench, we hire a year ahead, so i'm hiring for 2007, and i hired three women for that clerk class of 2007, three out of the four. in respect zena is right here.

and that was the start of my efforts to make sure women were not being excluded. and i really worked on why is this happening so yale law did a study about participation this class, the differences on who gets called on in class. and there are slight differences there. men and women. who then get selected as research assistants, slight differences there. and it just keeps building until you get a disparity in the clerk network. and there is a pipeline problem. and i've said i'm breaking through problem. i'm not listening to that. and so i've been very aggressive about hiring the best and understanding that the best include women and as you say, senator, a majority of my clerks have been women. i believe 21 have gone on to

clerk at the supreme court. and they are an awesome group. and if con on firmed to tfirmed court, i will continue to do this. what it takes, and i think my mom showed me this, president bush showed me this a little, what it takes is just not accepting the same old answer, oh, there is a disparity. well, why and then do something about it. and i tried to figure out why. and we can talk about minority clerks too. but on women, why were those disparities existing as described by linda greenhouse. and i tried to figure out why. and then i did something about it. and i'm very proud of that. because i do believe that all people should be treated equally and the law clerk position which may sound minute miisterial, bue are important launching pads for the next generation of leaders, the people who will be sitting

in these seats, the people who will be sitting in my seat. lots of them will come from law clerks. so if we are not being inclusive now, that will show up later. and so it has just been a critical part, something i'm very focused on at all times. it is a quality in the hiring process making sure women are getting the same opportunities that men are. i appreciate the yequestion. >> and i appreciate the answer. i think everybody in this country should appreciate the answer. and i think it distinguishes you. late last year allegations against former ninth circuit judge surfaced when an article detailed disturbing allegations of misconduct by the judge. you clerked for judge kozinski for a one year. some of your opponents have suggested that you must have

known about these allegations. this seems to me to be an effort at guilt by association, which is not the way this committee should operate in any way. with that in mind, i want to give you a chance to answer a question questio few questions so we're all operating on the same foundation. first, how long have you you known judge compakosinski? >> i clerked for him in 1991, 1992. so 27 years ago. >> and i understand from media reports that he operated an e-mail list where he said end inappropriate material. were you on this e-mail list? i like that. >> how often did you talk with the judge on the phone? >> not often. >> how often did you see him in person? >> again, not often. maybe when there was a legal convention or -- >> that's what a lot 6 people

don't seem to understand. >> i was not working in the -- he was in the pass pass couaden courthouse in california with ten or court of appeals judges in that courthouse. i of course was working in washington, d.c. >> when you did see and talk with judge compakosinski, what of things did you talk about? >> we were among the 12 co-authors of the brian garner led book on judicial precedent. so for several years that was a project all of us -- the 12 of us i guess it was this total were working on that, including diane wood, chief judge of the 7th circuit, justice gorsuch wa. and justice kennedy had had judge compakosinski run kennedyw clerk hiring process. and in the course of that process, i would have

communications with the judge. >> did you know anything about these allegations? >> nothing. >> before they became public last year? >> when they became public, first thought i had was no woman should be subjected to sexual harassment in the workplace ever. including in the judiciary. especially in the judiciary. and when i heard, when it became public, it was in december, it was a gut punch, it was a gut punch for me. >> it was for me too. >> it was a gut punch for the view addition area. and i was shocked. and disappointed. angry. swirl of emotions. no woman should be subjected to sexual harassment in the workplace. and i applaud chief justice roberts appointed a committee of

judges to establish better procedures. chief justice gar land dland di same thing for our court. i don't think they are final steps by any stretch. and what -- this is part of a much larger national problem of an abuse and harassment. and one of the things we've learned is we need better reporting mechanisms. women particularly in the work place need to know if they are the victim of harassment where to report it immediately, who to report to. they need to know that they will be safe if they report it. they need to have a safe working environment, that they won't be retaliated against and they will being protected if they report it. and that is part of the steps or one of the steps that is i think being improved as a result of the working group or committee that the chief justice has

appointed. and i'm interested in doing everything i can to assist those efforts to make those workplaces safe. again, it is part of a broader national problem, whether it is priests or teachers or coaches or doctors or businesspeople or news people. there is a lot of -- there is a broad national problem that needs to be addressed including in the judiciary and i applaud chief justice roberts for doing so. >> i'd like to talk to you now about the chevron doctrine. >> [ yelling ]. >> this is an important judicial doctrine that makes -- that takes its name from the supreme court case that created it back in the 1980s.

the supreme court instructed federal courts to defer if the law was ambiguous. some of your academic writings have expressed skepticism about the chevron doctrine and concern that it allows an administration to impose its policy preference by avoiding the political process. i can understand why this would be appealing to an administration. but i also think that takes threat to the separation of powers because it transfers power from congress and judiciary to the executive branch. that iswhy i've introduced an a to reverse the chevron doctrine. many members of this committee have co-sponsored this legislation. and as someone who has written extensively about the spragtsepn of powers, can you tell us why the separation of powers is so important and how it