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 helps to

protect individual freedom? >> separation of powers protects individual liberty because it responds to the concern the framers had something that senator klobuchar said yesterday, federalist 47 talks about it, federalist 69. so the separation of powers to begin with protects individual liberty. it does so because congress can pass the laws but you can't enforce the laws. a separate body has to decide to enforce the laws. and then even if the law is enforced and a citizen may say well, i want someone who didn't pass the law or enforce to decide whether i violated the law or whether the law is constitutional. and that is why we have an independent judiciary to guarantee as an independent matter our rights and liberties. and the three branches therefore do separate things because it all tilts toward liberty. it is hard to pass a law as you

know in the congress. and then even if it does get passed, it affects your liberty. a separate body has to decide usually u.s. attorney's office to enforce the law and that is a separate decision. that helps protect your liberty. and then even if that happens, you go to a court and you say either i didn't vie light that law as i'm accused of doing on or that law is unkons tugts con. the court independently decides that, it is not the members of congress or the executive. that is how the constitution separate of powers tilts towards liberty in all its respects. now, as to your specific question, one of the things that i've seen in my experience in the executive branch and in the judicial branch is a natural tendency, but it is a natural tendency that judges need to be aware of and then respond to, so here is the natural tendency.

congress passes laws but then can't update the law. so maybe it is an environmental law or maybe some kind of law dealing with national security. let's take those two examples to illustrate. and then an executive branch agency wants to do some new poli policy. and proposes a new policy to congress. but congress doesn't pass the new policy. what often happens or too often i've seen is that the executive branch then relies on the old law you as a source of authority to do this new thing. and they try to say, well, the old law is ambiguous, so we can fit this new policy into the old law as justification for doing this new thing. and i've seen this in national security cases, i've seen it in environmental cases, you see it all over the place. it is a natural phenomenon because the executive branch wants to implement what it thinks is good policy. now, when those cases come to

court, it is our job to figure out whether the executive branch has acted within the authority given to it by congress. have you given them the authority. and my administrative law is rooted in respect for congress. have you passed the law to give the authority. i've heard it said that i'm a skeptic of regulation. i'm not a skeptic of regulation at all. i'm a skeptic of unauthorized rely lag regulation, regulation outside the bounds of what the laws passed by do you think hacongre. and that is at the root of our administrative law injuries b w jurisprudence. >> i look for the ability to impartially interpret the law and apply it to the case before the court. now, this can often be the most difficult part of a judge's job because it may require the judge

to rule against a litigant that the judge may personally agree with. at justice sotomayor's confirmation hearings, senator schumer commended her for, quote, huing carefully to the text of statutes. do you believe that it is important for a judge to enter spret and apply the laws that congress has actually passed rather than seeking to change the law if the judge didn't like what the congress has done? and if so, why or why not? >> i agree completely, senator. that is at the foundation of what i view as the proper judicial philosophy. the separation of powers system you described, we have to stick to the laws passed by congress. you make the policy. we will follow the policy direction that you put into the laws that are enacted passed by

the house and senate signed by the president. we don't rewrite those laws. the executive branch also shouldn't be rewriting those laws beyond the scope of the authority granted. >> some of my colleagues have it doctor si criticized for ruling against environmental interests. some of my colleagues don't like the environmental laws congress has passed and are frustrate that had they haven't been able to get their own preferred policies signed in to law. i've looked through your record and i found that you have not hesitated at all to uphold environmental regulations when they were actually authorized by statute. could you give us a few examples of cases where you have upheld environmental regulations because you you concluded that congress had authorized them? >> limit to as few as you can as time has run out.

>> senator, as i said yes, i'm a pro law judge andenvironme environmental cases, in some i've ruled against virnment a al interests and there are some big cases. i upheld a california regulation for a majority over a dissent. stricter air quality standards in the national association of manufacturers case. epa rules for particulate matter in the uarg case, permanent process applicable to surface coal mining in the national mining association case, the murray energy case rejesktsinje premature challenge to a clean power plant regulation. the national resources defense council case versus epa ruling for environmentalist groups. that was a big money case where the industry wanted an

affirmative defense to be created for accidental emissions. the affirmative defense was not in the statutes passed by do you think. the industry came in with their lawyers and said write the affirmative defense into the law and i wrote the opinion saying no, it is not in the law. and, yes, that might be a problem for industry, but we follow the law regardless. so there are a large number of cases where i've ruled in favor of vienvironmentalist interests because that is what the law required in that case. >> thank you, judge. >> senator leahy. >> good morning, judge. you and your family. we have a lot of questions, and i know you've done a lot of preparation with a couple of our distinguished republican colleagues about the questions that you might be asked, but let me ask you something that normally isn't an issue during

supreme court hearings. you testified before this committee in both 2004 and 2006 as a part of your nomination to the d.c. circuit court. and you were nice enough do by high offi my office and chat with me last month. i asked you if you changed anything in your prior testimony and you said no. is that still your position? >> it is, senator. i told the truth. i was not read into the programs, i -- >> i'm not asking if you -- i'm just asking if you would change anything. >> i'd like to explain if i can. >> i'm going to give you a chance. go ahead. >> i wanted to explain at the last hearing in 2006 in particular, you were concerned understandably because there had been two judicial nominees

involved in the legal memos, in the legal discussions around krachtding t crafting the interrogation techniques and detention policies. you were concerned whether i the was involved in those. and i made clear in response to those questions that i was not read into that program. that was 100% accurate. still accurate today. i think senator feinstein's report and the office of professional responsibility report established that i was not involved in those programs. now, there were two judicial nominees -->> i'm going to go into that in a little bit. i don't want to go over my time as the preceding senator did. >> i just want to be clear, i want to reassure you -- >> i'm going to go into it. >> i'm not going to take i'm away from you, but i want to explain something. i said yesterday that if a question is asked within with the 30 minutes, that he can

finish the question and it can be answered. so he did not go over his time. >> sorry, i didn't mean to hit a sensitive area. let me ask you this. between 2000 -- i'm new here. between 2001 and 2003, two republican staffers on this committee regularly hacked into the private computer files of six democratic senators including mine. these republican staffers stole 4670 files. and they used them to assist in getting president bush's most controversial judicial nominees confirmed. the theft became public in late 2003 when the "wall street journal" happened to print some of the stolen materials.

the ringleader behind this massive theft was a republican staffer named manny miranda. in a way it was considered by many both republicans and democrats as a digital watergate, theft not unlike what the russians did in hacking the dc. now, during all this, you worked hand in hand in the white house with manny miranda to advance these same nominees where he was stealing material. not surprisingly you were asked extensively about your knowledge of this theft during both your 2004, 2006 hearings. and i don't use the word extensively lightly. you were asked over 100 questions from republicans and democrats. and you testified repeatedly

that you had never received any stolen materials, you knew nothing about it until it was public. you testified that if you had suspected anything untoward, you would have reported to the white house counsel who would have raised it with senator hatch especially as mr. miranda had worked for him. and at the time we left it there. we didn't know any better. today with the very limited amount of your white house record that has been provided to this committee, and it is limited, for the first time we've been able to learn about your relationship with mr. miranda and your knowledge of these events. so my question is this. did mr. miranda ever provide you with highly specific information regarding what i or other democratic senators were planning on asking certain judicial nominees? >> senator, let me contextualize

because i'm looking at what you're putting up here for -- >> the question -- >> what is up there is 100% accurate as my memory. >> okay. so let me ask you this. >> never knew or suspected, true. never suspected anything untoward. true. had i suspected something untoward, i would have talked to judge gonzalez. i would have talked to senator hatch. that is all 100% true. >> and that is what i had already said. but did mr. miranda ever provide you with highly specific information regarding what i or other democratic senators were planning in the future to ask certain judicial nominees? >> well, one of the things we would do as a white house is on

judicial nominations, and i'm coming to your answer, but i want to explain, is to meet up here and this happens on both sides all the time with teams up here about, okay, judicial nominees are coming up, how do we get them through, here is a hearing coming up. and during those meetings, of course it would be discussed, well, i think here's what senator leahy will be interested in. that is very common. i'm sure in president obama's administration when they had similar meetings, they would probably have meetings and say i think this is what senator graham will be interested in. that's what you do in meetings with -- so highly specific, i'm not sure what you're getting at by highly specific. >> i've been here over on 40 years. i know what both republican and democratic administrations do in preparing. i'm not asking about that. i'm asking you before this did

mr. miranda send you an e-mail asking you on july 19th, 2002 asking you and another bush official why the playleahy peop were looking in to financial ties in two particular groups, a controversial nominee to the fifth circuit. you handled that nomination. as you know she had received a lot of the contributions. did mr. miranda send you an e-mail asking you why the leahy people are were looking in to her financial ties? >> is that what this e-mail is? >> i'm just asking. >> can i take a minute to read it? >> of course.

>> this is four days before her hearing on july 23. >> did i send any of the e-mails on this chain? i don't think so. i think i'm cced. in any event, if he said why are the leahy people looking into th this? >> from man any miles per honma.

>> i don't have a specific recollecti recollection, but it would not have been unusual which is that the leahy people are looking into this, the hatch people are looking into that. >> you say all the time. two days before the hearing, he told you that democrats were passing around a related "60 minutes" story and he said it is intel suggests that leahy will focus on all things money. well, that appears to come from a stolen e-mail to me, stolen by the republican staff member sent to me the night before and then given to you the next morning. were you aware that you were getting from mr. miranda stolen e-mails? >> not at all, senator. it was part of what appeared to be standard discussion about -- it is common, senator, at the white house to hear from our

alleged affairs team in fact in this process that is common to hear. this is what senator x is interested in, this is what senator y -- >> was it common to have copies of a private e-mail sent to a particular senator? >> copies of a private e-mail sent to a particular senator? >> yes. wouldn't that jump out at you? >> what are you referring to? >> mr. miranda is telling you about e-mails septembnt to me t night before. there would be no way that he would even have that unless he stole it. did that raise any question in your mind? >> did he refer to that e-mail in this? >> yes. >> where is that, senator? >> i'll let you read it. >> i'm not seeing where you are -- i'm not seeing what you are referring to.

>> let me take you one that you do ha do. because you do have this information from mr. miranda. and the very limited amount of material that the republicans are allowing us to see of that information did at least come through. but in january of 2003, let me go to something very specific, mr. miranda forwarded a letter to then tom daschle from me. the let are was clearly a draft. it had typos and it wasn't signed. somebody eventually -- we never put it out, but somebody eventually leaked its existence to fox news. i'm not sure who. i could guess. it was a private letter. the time i was -- it had been leaked. but here is the thing. you had the full text of my

letter in your inbox before anything had been said about it publicly. did you find it at all unusual to receive a draft letter from democratic senators to each other before any mention of it was made public? >> the only thing i said on the e-mail exchange if i'm looking at it correctly, senator, is who signed this. which would imply that i thought it was a signed letter. >> it was sent to you. were you surprised to get it. >> it is obviously a draft. it has typos and every else. were you surprised that a draft letter circulated among democrats ended up in your inbox? >> i think the premise of your question is not accurately describing my apparent recollection or understanding at the time. because i wouldn't have said who

signed this if i thought it was a draft. my e-mail says who signed this. >> so you you didn't realize what you had was a stolen letter signed by me that you had a letter that had not been sent to anybody, had not been made public? >> all i see that i said was who signed this. that's all i see. >> let me ask you some more because so much of this came from mr. miranda who was a republican staffer who was as we now know stealing things. did he ever ask to meet privately with you you at an off site location other than somewhere the white house or capitol hill? >> i think sometimes, senator that the meetings with senate

staffers and white house and justice department -- >> i'm asking you about one particular one, mr. miranda. >> yes, statement -- usually it would be either the white house or senate, but i think sometimes -- or doj, but sometimes it could be somewhere else. >> did he ask to meet with you privately so he could give you information about senator biden and senator feinstein? >> i'm not remembering anything specific, but that is certainly possible. and again, senator, i just want to be clear here, because it is very common when in judicial selection process to determine what are all the senators interested in for an upcoming nominee or upcoming hearing. that is the coin of the realm. senator x is interested in focusing on administrative law. senator y will ask about environmental law.

senator is concerned about your past work for this client. and that is very common kind of discussion. >> did he ever ask to have you meet him not at the white house, not at the capitol, but at his home? >> i don't remember that. >> did he ever ask you to meet him outside of the white house or the capitol? >> i can't rule that out, but again, that wouldn't have been typical. >> did he ever hand you material separately from what would be e-mailed back and forth? >> not remembering -- if you are referring to something in particular, i can answer that. >> did you ever receive information via mr. miranda, information marked confidential that informed you what my staff was sharing with other

democrats? >> i don't know the answer to that, senator, but again, people on -- it is not always the case at least my understanding that the people on for example your staff and senator hatch's staff were necessarily working at odds. it seemed like a lot of times the staff was cooperating at times, not at other times obviously. but at times about judicial nominations. and so it wouldn't have raised anything in particular in my mind if we learned, oh, senator leahy is concerned about this. >> did my staff ever send you confidential material from sn senator hatch that was stolen from his e-mails? >> not the last part, but i certainly did talk to your staff when we were working on the airline bill on the september 20, 2001 airline bill. i remember being here all night one night with your staff and i'm sure we did talk that night about what other senators

thought and that was the airline bill whereas i think you recall speaker hastert was involved and we were up there with the omb team. so i worked hard with your staff on that. it just trustruck me as not uncommon at all to be talking with our ledge team about what senators on both sides think. it didn't strike me that it was always armed camps. >> and oftentimes it was not. but here you're getting obviously very private democratic e-mails. you weren't concerned how mr. miranda got them? >> i guess i'm not sure about your premise. >> were you at all concerned about where mr. miranda got some of the material he was showing you? >> i don't recall that, but on the prechlmise of your last question, i want to step back to that, i'm not sure i agree with

the premise. >> if you are getting something marked con if i he deny shal, wouldn't you assume that is not something being shared back and forth? >> unless it was shared. i mean, this is the thing. if a staffer said here's what we're sending to -- you all should be aware of this because we're going to make a -- we'll be really opposed to this judicial nominee. so just to be clear, it seemed to me sometimes there were judicial nominees that you were very opposed to, sometimes you were supportive of, sometimes in between. and there would be messages passed back and forth and sharing of information very cooperative as i recall. we were transparent in other words. when you had problems with nominees, there was transparency. and when you were supportive, you were at the may 9, 2001 event at the white house as i recall where the president announced his first 11 court of appeals nominees. and you were supportive of many

of them. >> but i voted for a lot of republican nominees. both at the supreme court, courts of appeals and district court. >> yes. >> but when i opposed one, i was raising very questions about funding that she was getting from people that were before her court, that might have raised a red flag that i had some concerns about her. now, when you worked at the white house, did anyone ever tell you they had a mole that provided them with secret information related to nominations? >> i don't recall the reference to a mole which sounds highly specific. but certainly it is common again, the people behind you can probably refer to this, but it is common i think for everyone to talk to each other at times and share information. at least this was my experience.

this was 20 years ago gee almal. where you would talk to people on the committee -- >> so you never received an e-mail from a republican staff member with information claiming to come fromspy iing on a democratic mole? >> i won't rule anything out, senator, but if i did, i wouldn't have thought that anything -- i wouldn't have thought that in the literal meaning of that. >> wouldn't it have surprised you that you got an e-mail saying that somebody is spying on -- >> is there such an e-mail, sir? >> we'd have to ask the chairman what he has in his confidential material. >> if you are referring to something in particular, here's what i know -- >> just stop a minute here. referenced twice in your 30 minutes, and don't take this off of his time, you made reference -- you are talking

about the period of time that he was white house counsel. that material is available to everybody. >> so that bit of material about him that is marked committee confidential is now public and available? is that what you're saying? then we have a whole new series of questions. >> no, not if it is committee confidential. but you have access to it. don't forget 80% of the material we've gotten from the library is on the website of the judiciary committee so the public has access to it. proceed. >> no, i want judge kavanaugh to have access so that we can ask him these questions under oath and he can see them. so i would ask the chairman if he might look at some of these that are marked committee c

confidential which limits the ability of us to ask you specifically and hand you the specific e-mails. but i would state on what has been public -- >> let me answer that for you. there is only one democratic senator asked for access to that, senator klobuchar got it. if you are interested in it, you could have been asking ever since august 25th, i believe. >> we've been asking to have those made public. i'm not as interested if i see this in a closed room where i can't talk about it. i want judge kavanaugh to see the e-mails which came from mr. miranda and -- >> give us citation of the documents and we'll get them for you. >> that testimony up there is true. 100%. >> can somebody read it?

>> of course it would be helpful if we allowed the national archives time to complete their review. >> but i want to reassure you because you are asking important yes questions, what you have up on the board is 100% accurate. >> can somebody move it so we can see it here? >> i am concerned because there is evidence that mr. miranda provided you with materials that were stolen from me. and that would contradict your prior testimony. it is also clear from public e-mails that you have reason to believe materials were obtained inappropriately at the time. now, mr. chairman there, are at least six documents that you considerdential

that are directly related this, just like the three i already shared that are public. these other six contain no personal information, no presidential records, restricted material. there is simply no reason they can't be made public. i hope they will be before this next round. you know, it is difficult to ask question that i have to ask will you allow me to ask the question. i certainly never did that when i was chairman. now, i'd asked you in 2006 whether yyou had seen any documents related to president bush's nsa warrantless wiretapping program. or whether you had heard anything about it. you answered that you learned about it with the rest of us in december 2005 when the "new york times" reported it. now, i know it has been 12 years. so here is the video of your

sworn testimony. should be on the tv screens. >> documents relating to the president's nsa warrantless wiretapping program? >> senator, i learned of that program when there was a "new york times" story with -- reports of that program when there was a "new york times" story that came other than the wire i think on a thursday night in mid-december of last year. >> you had not -- had you heard anything about it prior to the "new york times" article? >> no. >> nothing at all? >> nothing at all. >> mr. chairman, can i -- >> are again, don't take this time away from him. now, as far as i know in 15 hearings, so i will read something in just a minute, but preface it with this, as far as i know, in 15 hearings that i've

been involved in of supreme court justices, there has never been such a video shown. so since this is precedent shal, i want to read that the use of a video at a confirmation is highly irregular but i don't see any reason in a my colleagues cannot use a video that was provided by the nominee himself. i've been assure that had the video is from judge kavanaugh's summation to the committee based on this assurance, we have allowed this video to be shown. but i want to emphasize that i expect that video to be used fairly, the video clip should not be presented in a way that deprives it of relevant context. this is consistent with requirements in federal court. that is why i will insist that judge kavanaugh have the opportunity before he answers this question to request if any additional video be played if it provided appropriate context. so judge kavanaugh, i would ask

you, do you believe that more context is needed to be able to address the question? >> well, i don't think i've heard the question yet, but i'll let you know when i hear the question. >> let me ask you this. i'll repeat the question i asked before. you said you heard about this with the rest of us in december 2005. you said on the air that you had no knowledge of anything related to this until the "new york times" article. now we have a declassified inspector general report that on september 17th, which is befo before -- several months before the "new york times" article john uh issued a report on the surveillance of the white house that outlined the warrantless

wiretapping program. when you were in the white house in 2001, did you ever work with john uh on the constitutional implications of a warrantless surveillance program? >> we're talking about a lot of different things, senator. >> warrantless surveillance program. >> that is talking about a lot of different things. so when you were asking about right there was the specific -- what president bush called the terrorist surveillance program, that was his name for it. >> this which is a warrantless surveillance program. >> along with many others. and that is -- you were asking me about the terrorist surveillance program, tsp i think he called it. that story was broken, that testimony is 100% accurate. that story was broken in the "new york times." i had not been read into that program. and when it came in the "new york times," i actually till remember my exact reaction when i read that story. and then the president that saturday i believe did a live

radio address to explain to the country what that program is about. there was a huge controversy. and so everyone was then working to getting the speech together. and you asked me if i learned about it before then. i said no and that is accurate. >> when you were in the white house, did you ever work with john uh on the constitutional implications of any warrantless surveillance program? >> i can't rule -- right in the bake of september 11th, it was all hands on deck on all fronts. and then we were farming out assignments. but we were all involved -- on september 12th when we came in, let's back up, on september 12th when we came into the white house, it was -- we have to work on everything. so then over time people figured out what issues they were going to work on. you had the airline bill that i was up here on september 20th

when president bush spoke to congress in a night as you recall 37 and after that, we were in the meeting room together, you and i and others working on the airline bill. but there were all sorts of other things going on. the patriot act was going on. >> i was involved with all of those. >> yes, i know. >> but i want to know did you ever raise questions about warrantless surveillance? >> i can't rule anything out like that. there was so much going on in the wake of september 11th, senator, as you recall, up here too. but in the white house in particular and in the counsel's office in particular. we had eight lawyers in there, eight or nine as i recall. and there were so many issues to consider for the president and for the legal team and those issues like i said for president bush, every day for the next seven years was september 12th, 2001. for the legal team, there was a lot -- >> for a lot of us it was.

>> yes. >> mr. chairman, i have a letter along with senator feinstein and durbin august 16th of this year asking for any documents related to this issue to be made public. without them being public, it is not fair to me and it is not fair to judge kavanaugh that i can't hand him the actual du documents which i think would refresh his memory. and i would ask again before my next turn can we make those public. >> you tell us what documents you want and i'll make them available to you, but i can't say that they can be made public. just as i said last year during justice gorsuch's confirmation, i put a process in place that

will allow my colleagues to obtain the public release of confidential documents for use during the hearing. all i asked was my colleagues to identify the documents they intended to use and i would work to get the department of justice and former president bush to agree to waive restrictions on the documents. senator feinstein secured the public release of 19 documents last year under this process and senator klobuchar secured the release of four documents this year. if my colleagues believe that other committee confidential document shoes have been made public, they never told me about that. so let us know what you want. and then we'll get them for you. >> i want the same thing that i requested august 16th because it is directly relevant to judge kavanaugh's testimony, directly relevant to the questions i've been asking here.

directly relevant to his own e-mails with john uh. so before my next turn, we can take a look at that. >> well, we'll get them for you for your next turn. >> now, you said everyone agrees the president hats s unfettered power to pardon every violator of every federal law. can the president issue a pardon in exchange for a bribe? yes or no? >> i think that question has been litigated before and i don't want to comment about any -- >> let me ask you this. >> there are a couple things involved in that question. one is what is the effect of the pardon. and the other question is can

you be separately charged with the bribery crime both the briber and the bribe e. you want to keep those two questions separate in thinking of a hypothetical. >> and in that -- >> mr. chairman, i got interrupted an awful lot. i want to finish this question. >> but i made sure that if the timer didn't treat -- well, give him another minute. >> thank you. >> god bless you. i'll be forever thankful. president trump claims he has an absolute right to pardon himself. does he? >> the question of self-pardons is something i've never analyzed. it is a question that i've not written about. it is a question therefore that is a hypothetical question that i can't begin to answer in this

context as a sitting judge and as a nominee to the supreme court. >> and the other half of that is the obvious one, does the president have the ability to pardon somebody in exchange for a promise from that person that they wouldn't testify against him. >> senator, i'm not going to answer hypothetical questions of that sort. there is a good reason for it. judges don't -- when we decide, we get briefs and arguments from the party, we have a record. we have an appendix with all the information. we have amicus briefs. and i never decide anything alone. i'm on a panel of three. and if i'm confirmed for the supreme court, i'd be on a team of nine. >> thank a you, m you, mr. chai. i hope that remains a

hypothetical question. >> and sense i gave yator is gl. thank you very much. july 21, 1993. i certainly don't want you to have to lay out a test here in the abstract which might determine what your vote or your test would be in a case you have yet to see that may welcome before the supreme court. that was wise counsel by senator lee in the ginsburg confirmation. very directly, did you ever knowingly participate in stealing anything from senator leahy or any other senator? >> no. >> did you ever know that you were dealing with anything that was stolen property? >> no. >> as to the terrorist surveillance program, did you help create this program? >> are no. >> did you give legal advice about it?

>> no. we're referring to the same program i was talking about earlier? >> yes, the one that the article was about. so a bit of kind of a run through here, you're probably going to get 55 votes. i don't know. 54 to 56 or 57. i don't know what the number will be. there are 11 undecided senators before the hearing. three of them republicans, i like your chances. eight of them are democrat. you're in play with about five or six of them. and i just want you and your family to know that in other times, someone like you would probably get 90 votes. i want your daughters to know that what happened yesterday is unique to the times that we live in. and i want to give you a chance to say some things to the people that have attended this hearing. i think there is a father of a parkland student who was killed. i think there is a mother of a

child who has got terrible health care problems. and there are many other people here with personal situations. what would you like to say to them, if anything, about your job as a supreme court justice? >> senator, i understand the real world effects of our decisions. in my job as a judge are for the last 12 years, i've gone out of my way in my opinions and at oral arguments to make clear to everyone before me that i understand the situation, the circumstances, the facts. for example, as i was saying to senator feinstein earlier, in the heller 2 case about the facts in d.c. and i want to reassure everyone that i base my decisions on the law, but i do so with an

awareness of the facts and an awareness of the real world consequences. and i've not lived in a bubble. and i understand how passionately people feel about particular issues. and i understand how personally people are affected by issues. and i understand the difficulties that people have in america. i understand for example, well, to start, i understand the situation of homeless people because i see them on a regular basis when i'm serving meals. >> so tell me about that, what interaction do you have with homeless people? >> senator, i regularly serve meals at catholic charities at 1 10th and g with father john who i've known since i was 9 years order when i was an altar boy at little flower parish. and what you learn when you

are -- i said i'm matthew 25, try to follow the lesson of serving the least fortunate among us. when i was hungry, you gave me food. thirsty, you gave me drink. stranger and welcomed me. naked and you clothed me. sick and you cared for me. in prison and you visited me. six groups that, that is not exclusive, but a good place to start with your charitable works. >> so describe the difference between brett kavanaugh the man and brett kavanaugh the judge. >> well, as a man, i'm trying to do what i can in community service. as a dad, as a coach, as a volunteer, as a teacher, as a husband. and serving meals to the homeless, the bone thing senato you know we're all god's children, we're all equal. people have gotten there because maybe they have a mental illness, maybe they had a

maybe they didn't have anyone to care for them. maybe they lost a job and didn't have a family, but every single person you serve a meal to is just as good as me, or better, frankly, because they've -- what they've had to go through on a daily basis just to get a meal. and you talk to them. that's the other thing. when you're walking by the street, you see people, and i understand. i'm sure i've done this. i don't want to sound better than someone in describing this, but you don't necessarily look and you don't say, how is it going? but when you serve meals to them, and you talk to people who are homeless, and they are just as human and just as good of people as all of us. and, you know, we're all part of one community. and so i think about that and i'm going to -- i don't want to sound like i -- i can always do more and more and do better. i fall short.

but father john has been a big influence on that. so that's, as a person, watching jesuit academy. i tutor up there and now i'm on the board of washington jesuit academy. those are low-income boys from low-income families, tuition-free school. one of the 7:30 a.m. to 7:00 schools. and i started tutors up there because i wanted to do some more tutoring. and just being involved more. but i want to be more directly involved in the community. they have tutoring. you do all your homework there because it was a situation you don't want to go home and have anything else to do. you have three meals there and help them do their homework and see these great kids in a structured environment. and you make an effect in their lives. and, like i said yesterday, the teachers and coaches throughout america, they change lives and for me to be able to participate, you know, you can't change everything at once but

just changing one life, one meal, one day at the shelter or one kid that remembers something you said in a tutoring program, if we all did that more, and i fall short, too. i know and i want to do more on that front, but you can make a big difference in people's lives. i just bring that into the judging. i think my judge based on the law, but how does that affect me as a judge? i think i first of all standing in the shoes of others. we could all be that homeless person. we could all be that kid who needs more structured educational environment. and one of the things i was taught by my mom but also, i remember chris able, my sixth grade english teacher and religion teacher and football coach and baseball coach, one of his -- and he drove me to school. one of his -- and he's now on the board of washington jesuit academy with me. but one of his lessons in "to

kill a mockingbird" was to stand in the shoes of others. i still have the "to kill a mockingbird" that we used in sixth grade. still the same copy. >> is it fair to say that your job as a judge is to not so much stand in the shoes of somebody you're sympathetic to but stand in the shoes of the law? >> you're in the shoes of the law but with awareness of the impacts of your decisions. and that's what's the critical distinction. you can't be unaware. when you write an opinion, how is it going to affect people. >> right. >> and understand, try to explain. i think it's explaining. such an important feature. when people come into the courtroom, and how you treat litigants. so we are all familiar. we've all been in courtrooms where the judge is acting a little too full of being a judge. and to -- well, we've all been there. i try not to do that. can't say i'm perfect but i try to make sure the litigants

understand that i get it, whether it's a criminal defendant case. we had a pro se case. a pro se case where a litigant comes in and argues pro se in our court, which rarely happens where the pro se actually argues. and it was a guy who said he had been called the "n" word by a supervisor. and he's arguing pro se and the question is whether in the single instance of the "n" word constitutes racial harassment under the civil rights laws. and i wrote a separate opinion explaining, yes, a single instance of the "n" word does constitute a racially hostile work environment. and i explained in doing tharkts i explained the history of racism in this country and that -- and how that word -- no other word in the english language so powerfully or instantly calls to mind our country's long and brutal struggle against racism. i wrote in that opinion.

and i cited "to kill a mockingbird" in that opinion, among other things. what i wanted to make clear by bringing this example up is, i understood his situation. i tried to understand what that would be like, and i decided the case based on the law. but i understood with the pro se litigant. the point being, i always trying to be aware of the facts and circumstances. >> have you ever made a legal decision that personally was upsetting to you? >> well, i'm sure i have, and that's what justice kennedy talked about in texas versus johnson. that case in case people didn't know what i was referring to on texas versus johnson is the flag burning case. in t and says that a law against flag burning is unconstitutional under the first amendment. and that, obviously, tore justice kennedy, really bothered

him because he's such a patriot but he still ruled the way he did because he read the first amendment to compel that result. that's why he wrote that great concurrence in that case. that concurrence is such a great model for judging. a great model of independents and a great model to your point, senator graham of, we follow the law, but we're aware. and you are a better judge if you're aware. >> i just want to say this, everything has been verified by the people who know him the best. i can't say i've read 307 of your opinions. i can tell you without hesitation, i have not. i did not read sotomayor opinions or kagan's writings. but what i chose to do was look at the people who knew them the best. and i think bob bennett who defended president clinton during impeachment, i know him very well, said that brett is a judge's judge. someone doing his absolute best to follow the law rather than

his policy preferences. brett is an all-star in both his professional and personal life. i have yet to find anybody that i find credible, really anybody at all, that you would suggest you're unfair to litigants. i have yet to find a colleague who thought you were a politician in a robe. but you are a republican, is that true? >> i registered -- >> was, okay. >> yeah. >> the only reason -- glad to hear you say that. it makes a lot of sense. given who you work for. >> i haven't -- well, i'll let you finish your question. >> you work for a lot of republicans. >> yes. >> like the president who was a republican. >> president bush i worked for, yes. >> so that's -- >> our country is at stake. >> i'll tell you what i remember

when she leaves. >> so i asked alaelena kagan ab a statement greg craig made. >> i haven't seen him in many years. >> he was the -- one of the defenders of president clinton during the impeachment hearing. and somewhere in here i've got greg craig's statement about kagan. >> here's what kagan was a progressive in the mold of obama himself. elena kagan is clearly a legal progressive and comes from the progressive side of the spectrum, according to ronald klein. the first was greg craig. and i had an exchange with justice kagan when she was the

nominee. i'm not trying to trick you. i don't have anything on greg. he said that you are a largely progressive in the mole d of oba himself. do you agree with that? ms. kagan, you know in terms of my political views, i've been a democrat all my life. i worked for two democrat presidents, and that is what my political views are. and asked would you consider your political views progressive, ms. kagan, my political views are generally progressive. which is true. i really appreciate what she said because i expect president obama to go to someone like elena kagan who is progressive, shares his general view of judging and who happened to be highly qualified.

sotomayor. president obama nominated sotomayor because he wanted someone whose philosophy of judging was his, which is applied to the law and constitutional principles was be ready to adopt them to a modern context. so president obama nominated sotomayor because he wanted someone whose philosophy of judging was his. i expect that to happen. if donald trump is president in 2020, he'll be our next president. if it's somebody else, i expect that to happen. to my colleagues on the other side, what do you really expect? you should celebrate, even though you don't vote for him and i don't know why you wouldn't, the quality of the man chosen by president obama. elena kagan and ♪ o