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 mayor came from the

progressive wing of the judging world and of legal thought. they are absolutely highly qualified, good, decent people. and they got -- let's see if i can find the vote totals. ms. kagan got 63 votes and sotomayor got 68. it's going to bother me that you don't get those numbers, but what bothers me is they should have gotten 90. they should have gotten 95. anthony kennedy got 97. anthony scalia got 98. ruth bader ginsburg got 96. so what's happened? between then and now, advise and consent has taken on a different meaning. it used to be the understanding of this body that elections have consequences and you would expect the president who won the

election to pick somebody of their philosophy. i promise you that when astronomy thurm strom thurman voted for ruth bader ginsburg he didn't agree with her philosophy. i have voted for every one presented since i have been here because i find them to be highly qualified, coming from backgrounds i would expect the president in question to choose from. so as to your qualifications, how long have you been a judge? >> i've been a judge for 12 years. >> how many opinions have you written? >> i have written over 300 opinions. >> okay. do you think there's a lot we can learn from those opinions if we spend time looking at them? >> yes. i am very proud of my opinions. and as i mentioned. i tell people, don't just read

about the opinions. read the opinions. i'm very proud of them. >> you were nominated by president trump on july the 9th, my birthday, which i thought was a pretty good birthday present for somebody who thinks like i do. and i think may have had something to do with it. at 9:00. by 9:23, chuck schumer says i'll oppose judge kavanaugh. by 9:25, senator harris, trump's supreme court justice nominee judge kavanaugh represents a fundamental threat to the health of millions of americans. elizabeth warren at 9:55. brett kavanaugh's record is hostile to health care for millions. opposed to the cfpb, corporate accountability, thinks president trump is above the law, on and on and on. nancy pelosi at 10:11. bernie sanders at 10:18. if brett kavanaugh is confirmed

to the supreme court it will have profoundly negative effect on workers rights, women's rights and voting rights for the decades to come. all i can say within an hour and 18 minutes of your nomination, you became the biggest threat to democracy. in the eyes of some of the most partisan people in the country who would hold kagan and sotomayor up as highly qualified and would challenge any republican that dare vote against them. you live in unusual times, as i do. you should get more than 90 votes, but you won't. and i am sorry it has gotten to where it has. it's got nothing to do about you. if you don't mind, and you don't have to, what did you tell your children yesterday about the hearing?

>> they did as they -- i'll tell them what they told me. they gave me a big hug and said good job, daddy. margaret before she went to bed made a special trip down and gave me a special hug. >> i just wish if we could have a hearing where the nominee's kids could show up. is that asking too much? so what kind of country have we become? none of this happened just a couple years ago. it's getting worse and worse and worse and all of us have an obligation to try to correct it where we can. roe v. wade. are you familiar with the case? >> i am, senator. >> can you in 30 seconds give me the general holding of roe v.

wade? >> as elaborated upon in planned parenthood, a woman has a constitutional right as interpreted by the constitution to obtain an abortion up to the point of viability, subject to reasonable regulations by the state so long as those reasonable regulations do not constitute an undue burden on the woman's right. >> okay. as to how the system works, can you sit down with five -- you and four other judges and overrule roe v. wade just because you want to? >> senator, roe v. wade is an important precedent in the supreme court. >> don't you have to have a case? you can't just, hey, what are you doing for lunch? let's overrule roe v. wade. it doesn't work that way? >> i see what you're asking, senator. right. there's -- the way cases come up to us in that context or in other context would be -- >> can i give you an example because i can do this quicker? >> yes. >> so some states somewhere or

some town somewhere passes a law that runs into the face of roe. somebody will object. they'll go to lower courts and eventually it might come up to the supreme court challenging the foundations of roe v. wade. it would take some legislative enactment for that to happen, is that correct? >> that's correct. >> if there was such an action by a state or a local government challenging roe, and it came before the supreme court, would you listen to both sides? >> i listen to both sides in every case, senator. i have for 12 years, yes. >> when it comes to overruling our longstanding precedent of the court is there a formula that you use? >> there -- >> analysis? >> so, first of all, you start with the notion of precedent. and as i've said to senator feinstein in this context, this is a precedent that's been reaffirmed many times over 45 years, including in planned parenthood versus casey where they specifically considered whether to overrule and reaffirmed and applied all the

factors. that became precedent on precedent in this context. but you look at -- there are factors you look at when considering any precedent. >> so there's a process in place that the court has followed for a very long time. is that correct? >> that is correct. >> citizens united. if somebody said citizens united has been harmful to the country and made a record that the effects of citizens united has empowered about 20 or 30 people in the country to run all of the elections in some state or local at somewhere, passed a ban on soft money and it got to the court, would you at least listen to the argument that citizens united needs to be revisited? >> of course, i'll listen. i listen to all arguments. you have an open mind. you get the briefs and arguments. some arguments are better than

others. precedence is critically important but you listen to all arguments. >> okay. where were you on september 11th, 2001? >> i was in -- initially, i was in my then office in the eob and then after the first -- as i recall, after the first building was hit, i was in the counsel's office on the second floor of the west wing for the next few minutes. then we were all told to go down to the bottom of the west wing. and then we were all evacuated. and i think the thought was flight 93 might have been headed for the white house and might have been heading here. and secret service, we were being hustled out. and then kind of panic. started screaming at us. sprint run. and we sprinted out. my wife was a few steps ahead of me. she was president bush's

personal aide at the time and we sprinted out. she was wearing a black and white checked shirt. i remember. we sprinted out the front gate kind of into lafayette park. and no iphones or anything like that, blackberrys at that point in time. our cell phones didn't work. we were all just kind of out there. and then i remember somehow ending up seeing on tv down more on connecticut avenue, there were tvs out. mayflower hotel. i was with sarah taylor who worked at the white house. and we watched -- we were watching as the -- standing with her when the two buildings -- when the buildings fell. >> so when somebody says post-9/11 that we've been at war and it's called the war on terrorism, do you generally agree with that concept? >> i do, senator, because congress passed the authorization for use of military force which is still in

effect. and that was passed on september 14th, 2001, three days later. >> let's talk about the law at war. is there a body of law called the law of armed conflict? >> there is such a body, senator. >> is there a body of law that's called basic criminal law? >> yes, senator. >> are there differences between those two bodies of law? >> yes, senator. >> from an american citizens point of view, do your constitutional rights follow you? if you are in paris, does the fourth amendment protect you as an american from your own government? >> from your own government, yes. >> okay. so if you are in afghanistan, do your constitutional rights protect you against your own government? >> if you are an american in afghanistan, you have constitutional rights as against the u.s. government. >> is there a longstanding -- >> that's long settled law. >> isn't there also a long settled law that goes back to --

>> johnson versus izentraeger. >> that american citizens who collaborate with enemies can be considered enemy combatants. >> they can be. sometimes they're criminally prosecuted. sometimes treated in the military system. >> let's talk about can be. >> under supreme court precedent. >> there's a supreme court decision that said that american citizens who collaborated with nazi saboteurs were tried by the military. is that correct? >> that is correct. >> i think a couple of them were executed. >> yeah. >> so if anybody doubts there's a longstanding history in this country that your constitutional rights follow you wherever you go, but you don't have a constitutional right to turn on your own government, collaborate with the enemy of a nation. you'll be treated differently. what's the name of the case, if you can recall, that reaffirmed the concept that you could hold one of our own as an enemy

combatant if they were engaged in terrorist activities in afghanistan? are you familiar with that? >> hamdi. >> so the bottom line is on every american citizen, though you have constitutional rights but you do not have a constitutional right to collaborate with the enemy. there is a body of law well developed, long before 9/11, that understood the difference between basic criminal law and the law of armed conflict. do you understand those differences? >> i do understand they are different bodies of law, of course, senator. >> okay. if you are confirmed, and i believe you will be, what is your hope when all of this is said and done and your time is up. how would you like to be remembered? >> a good dad.

good judge. >> good husband. >> i think he's getting there. >> good husband. >> thanks, dianne. you helped him a lot. going to be better for you tonight. >> i owe you. good son i'll quickly add. good friend. i think the pillars of this life are being a judge, of course. being a teacher. either way this ends up, i'm going to continue teaching. coaching. huge part of my life. i'll try to continue that. senator kennedy advised me when we met, make sure you keep coaching, even if you get -- i'm going to follow that. volunteering. and being a dad and a son and a husband and being a friend.

i talked about my friends. i got a little choked up talking about my friends. >> that was well said. you've got to tighten it up because i just ran out of time. >> thank you, senator. i could go on, but i'll stop there. >> we're about ready to break for lunch and a vote that we have. it will be about 30 minutes. but before we do that, i have letters senator feinstein asked me to put in the record from -- 70 letters from people in opposition to your nomination. and then we also have letters in support of judge kavanaugh from hundreds of men and women across the country holding diverse political views. they strongly support his confirmation without objection. those will also be entered in the record. then i wanted to explain the exchange that i had with senator leahy just so people don't think that that's something that i did

on my own. we had previously sent out a letter. and only senator klobuchar up to that point had taken advantage of the letter to be able to ask for documents that were committee confidential so that they could use them at the hearing. and the only thing i've done for senator leahy that wasn't already in that letter was to remind people that we did the same thing for the gorsuch nomination to the supreme court. and it's a policy that senator leahy, when he was chairman of the committee, followed. and so the only courtesy was extended to senator leahy the fact that he didn't make the request by the timeline that was in the letter, which i think was august 25th. we're going to adjourn 30 minutes for lunch break. and i think that we'll be back here exactly in 30 minutes.

if not, judge kavanaugh, we will let your staff know if it's going to be a little later because you never know what happens in the united states senate when you have a vote. >> i'm wolf blitzer in washington alongside jake tapper. this is cnn's special coverage of the confirmation hearings of the u.s. supreme court nominee brett kavanaugh. if kavanaugh makes it through the process before the senate judiciary committee, he'll become the fifth conservative leaning justice on the highest court in the land. >> and that legal watchers believe will cement the court's conservative majority. it will also become arguably president trump's most enduring legacy on the second day of hearings, protesters once again began their disruptions early. [ protester yelling ] >> that continues throughout the hearing but senators were able to get to the heart of the concerns that kavanaugh's critics have, as well as the

ammunition that they have in support of kavanaugh. in terms of the critics, one criticism that deals with him at the center of the russia investigation. >> can a sitting president be required to respond to a subpoena? >> so that's 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, it's everyone's principle on the current supreme court, and it's a matter of the canons of judicial independence. i can't give you an answer on that hypothetical question. >> moments ago came this exchange about presidential pardons. >> president trump claims he has an absolute right to pardon himself. does he?

>> the question of self-pardons is something i have never analyzed. it's a question that i have not written about. it's a question, therefore, that's 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, you, obviously -- does the president have the ability to pardon somebody in exchange for a promise for that person that wouldn't testify against them? >> senator, i'm not going to answer hypothetical questions of that sort. there's a good reason for it. when judges don't -- when we decide, we get briefs and arguments of the parties. we have a record. we have an appendix with all the information. we have briefs. and i never decide anything alone. >> and jake, he was making the point that other supreme court

justice nominees were making these kinds of issues, like a presidential pardon, a presidential subpoena could come before the u.s. supreme court in the immediate period ahead and he didn't want to lay out his position. >> as a young campaign reporter, i remember asking then governor george w. bush a hypothetical and he said i'm not going to walk through a mine field of hypotheticals. that's what brett kavanaugh did. he avoided walking through any hypothetical mine field because the truth is you have to have all the information there. by the same token, it is also just a fact that he does have his own opinion about roe v. wade and you saw some attempt there by lindsey graham to explore the idea that this is precedent and there's really no way to get at what exactly might happen on the court should that come before the court. >> he did show a tremendous knowledge of a lot of these legal issues given the fact he spent 12 years on a federal court here in washington. >> not only that but as somebody who has been steeped in politics, somebody who has worked in politics in the bush

white house and other places he showed that he is political. he has a way of answering questions that is what he is supposed to say at any given moment, including expressing humility in terms of talking about his children, in terms of playing up his role as a father and somebody who does charity work. in terms of the politics of this hearing, i would say i don't think that any democrats, at least as of yet, have laid a glove on him and given any republican and also the swing democrats, any reason to not vote for him. >> we have our full panel of experts and analysts. jeffrey toobin, you've studied the supreme court for a long time. senator leahy tried to score some points insinuating that maybe his earlier confirmation hearings when he was going to a federal court here in washington, that he wasn't necessarily telling the truth, the whole truth and nothing but the truth. how far -- how much success did senator leahy have laying a glove on him? >> in fairness to senator leahy, he was setting up something that may or may not be coming in the

future. i think a lot of people who are watching probably found that whole exchange mystifying. but what it's -- what the basis of it is is in the early 2000s, there was a senate staffer for the republicans who was accused of stealing a bunch of e-mails, including from senator leahy. that staffer ultimately had some dealings with brett kavanaugh when brett kavanaugh was working in the white house. senator leahy was insinuating that brett kavanaugh knew that he was trafficking in stolen material and suggesting unethical behavior. kavanaugh denied that, but he -- leahy suggested there may be e-mails that were disclosed in the course of this investigation that may contradict kavanaugh. in fairness, it's important to say kavanaugh was not contradicted in terms of what was presented today. but i don't think we've heard the last of that subject, and it will be interesting to keep an

eye on him. >> john king, what did you think? >> i think abby pointed this out this morning. this is the one thing the trump white house does really well. for all the chaos, you talk about all the chaos. their judicial nominations, whether gorsuch and now kavanaugh for the supreme court or dozens of lower court judges, they have a process and team in place and they work closely with this committee. in this hearing they're trying to get out ahead of the democrats. questions about roe v. wade from republicans, not just democrats. because they're trying to get out ahead of it to get kavanaugh oral the record early on the record. >> i remember when he worked for ken starr. he gets the politics. if you are a conservative or make the case you want to vote for kavanaugh, he praised chief justice berger, a nixon appointee who led a unanimous decision to force nixon to comply with the subpoena. he wouldn't answer the specific question about the here and now. what if this is president trump. if you are an anti-abortion

conservative, a pro-life conservative, you hear him there say, yes, it's precedent, but, but casey versus planned parenthood does allow reasonable regulation. it talks about the point of viability. that is where the state law debates are going. more and more states try to move because of medical advances, technological advances or politics, trying to move the point of viability back sooner. you can find it there. if you're trying to vote for him on that issue, he said it's the precedent and courts make the decision on precedent. he's a practiced politician in giving his answers. >> the difference between what you said about president george w. bush, then candidate, that he's not going to walk into a mine field. donald trump jumped all over the mine field. he was very, very clear when he was running because that was his way at appealing to conservatives who were skeptical of him, particularly evangelicals. i'm going to find somebody who will get rid of roe v. wade. it's more critical and understandable for senators of both parties to try to get specifics and drill down on this

nominee on that question. and his answer was very much, as you guys were talking about, it showed the savvy with which he understands because of his political and judicial experience. his refrain was, i don't live in a bubble, which is a wink and a nod. it's almost a rorschach test of a wink and a nod. conservatives can look at that and say he's one of us. others on the fence, oh, so he's saying he understands the real world. pointed at murkowski and collins. >> there's two messages he wants to communicate. one on social policy issues, he is going to be in the mainstream. abortion, affirmative action, gay marriage. those kinds of things, he's going to try to reassure people. but the other thing is the credibility issue. that's where the questioning from senator leahy came from and i think we're going to see that with senator durbin also.

they're going to try to undermine his prior testimony and i think the key will be to see, does he get defensive? does he worry about what might be hidden in some records or does he try to say, as he did, i told the truth and the whole truth and stick to that theme. >> if leahy was setting something up with his questioning, it's not clear to me that he actually achieved what he was trying to do. i mean, this would only matter if there was something that was revealed later that showed kavanaugh's earlier testimony to actually be untrue. this is the challenge. the challenge for democrats, though, is that they're not spending a whole lot of time on judicial philosophy because they realize kavanaugh is smart enough to navigate his way through that. and they are pivoting to issues of credibility. but i am not sure they have the goods on the credibility, and that's what we need to find out later. >> what's interesting about the leahy exchange, he came in very prepared to say nothing, which is essentially what every

supreme court nominee does. in that moment he seemed a little off his game. like he was surprised, like he wasn't quite sure what was being asked. their exchange between grassley and leahy was also interesting because it seemed to imply that there may be more that the committee has. and that's introducing new information, perhaps. now they could leak those documents. i don't know what they have. but that's something that may come back even later today. and that's different from a lot of these debates. i expect as we get to some of the, shall we say, younger senators or more lively senators, they'll be more aggressive on roe v. wade and health care and even guns. and dive into some of these questions in a way that the first few really didn't. >> senator, i want to ask you a question. senator graham at one point cited past votes for previous nominees in which their votes were overwhelmingly in support of even somebody as conservative justice scalia or somebody as liberal as ruth bader ginsburg.

even ♪ o -- sotomayor and kagan. that's not going to happen here. the odds are kavanaugh will become the next nominee but with fewer than 60 votes. what changed? what was the reason that things have gotten as partisan as they have? even from the days of ruth bader ginsburg and antonin scalia to the kagan, sotomayor era? >> one thing, donald trump. you can't ignore the trump factor and how much democrats hate donald trump and want to block everything he does. and look at the massachusetts primary. there's just the base is on fire. and any democrat that doesn't margin step in blocking trump at every motion. that's a big part of it. but dana and i were talking about this earlier. there's been a real change. i was in the united states senate. i voted for almost every single clinton nominee. and some of them were folks i

wouldn't trust to judge me on things but the bottom line is, were they qualified? did they -- you know, were they fair? good temperament? and that was it. the election mattered. you get to choose who you want to pick. that has been thrown out because of the -- this is just a complete politization of the judiciary caused by the judiciary involving themselves more in politics. the judiciary becoming, as conservatives see and as democrats want, as a superlegislature to basically decide all the issues. when they jumped into that field, now they've gotten involved in the area of politics, and that's why these confirmation hearings are so contentious. >> that is very much a -- conservatives are very upset when judges jump in and get involved. conservatives are delighted when they overturn gun control laws. conservatives are delighted when obamacare may get overturned starting in a case today. conservatives are delighted when

campaign finance laws passed by the congress are overturned. so judicial activism wasn't invented by liberals. it is much -- it is very much in the eye of the beholder. >> i would agree to some degree that you're right that, you know, we do appreciate when the court gets it right. and doesn't -- and interprets the constitution as it is instead of creating legislative fixes and imposing taxes which courts do these days, on things. the court -- there's a difference between a fair calling on a campaign finance law and i can argue whether that's a good decision or bad one, as to when a court takes it upon themselves to legislate. and there is a difference between the two. i don't think liberals get that. >> to the political organizing credit of the republican party, they were much better at

organizing around judges up and down the ranks. not just supreme court judges but lower court judges and democrats followed suit and tried to organize in the same way. and it's become a big political issue and one that motivates both bases. that's where a big part of where it came from. the outside third party groups that made this a political grassroots tool. >> i want to ask one question of you, dana, which is senator graham made a point of allowing brett kavanaugh almost a do-over yesterday. and there's a lot -- this has been reviewed more than the zabruder film but one of the parkland fathers approached brett kavanaugh. mr. guttenberg is understandably in favor of more gun control and sees kavanaugh as someone that should notton the court because he's rules in favor of gun rights. and there was an attempted handshake and security was there. i'm not sure what was going through brett kavanaugh's mind. senator graham gave him an opportunity to say something to fred guttenberg and he didn't

take it. he affirmed that he is always there to listen to how his laws and rulings oar how laws under his rulings affect people. he didn't take it. i was surprised by that. >> i was, too. let's go back to roberts with the baseball analogies. this was a tee ball. he was allowing kavanaugh to do what clearly senator graham and others thought was a big mistake which was just be human. >> to shake his happened and just say i'm so sorry for your loss. >> this is a human being who lost a child, and, you know, not, as you said, it's not clear whose fault it was. >> he may not have known who he was. >> probably. >> but this is a chance to make an image that's gone viral right and you didn't do it the way he probably could have. >> the judge spent a lot of time speaking about his own personal family. his daughters and how much he's involved in community activity. that's why it was a surprise he didn't take advantage of that opportunity. everybody stand by.

we're getting new reaction also to bob woodward's explosive new book. among the new details, what president trump says was the biggest mistake he has made. but will the white house effort to discredit the pulitzer prize-winning watergate journalist actually work. much more of our special coverage right after this. largest investors in infrastructure, we don't just help power the american dream, we're part of it. this is our era. this is america's energy era. nextera energy.

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of what's taking place. these are the same rehashed, retold stories. just because they keep getting told doesn't make them more true. that's a ridiculous accusation. just because the same people keep writing the same type of books. you have a bunch of elites and left-leaning individuals who have a story to drive. >> president trump's attorney rudy giuliani weighing in after woodward described an outburst in which trump called giuliani a little baby that needed to be changed. giuliani said the incident about me sbentirery false. joining me, jeremy diamond. giuliani is denying that woodward even reached out to him for that anecdote. what do we know about exactly who spoke with woodward for the book? >> well, jake, denials have really been the mantra of this white house. and the people close to the white house who are involved in this book. we've seen the president now tweet out the denials from his

white house chief of staff john kelly, defense secretary jim mattis. and we saw that denial from giuliani. but we do know that at least a dozen current and former white house officials that cnn spoke with, spoke with bob woodward for this book. even in that conversation that woodward has with the president, the audio which was posted by "the washington post" yesterday, we know that kellyanne conway mentions having talked to bob woodward in the course of his reporting on this book. but the white house strategy has been pretty clear to try to discredit this latest book. it's the strategy they've used in the past with "fire and fury," the latest book from omarosa. it's proved more difficult with bob woodward. while that may be the reaction from the white house and the president, it hasn't quite been the case even from the president's allies on capitol hill like senator lindsey graham. >> all right. >> you should believe that bob woodward is a good reporter. you should take some of it with

caution. the whole theme of the book is that president trump can run hot and be volatile. i agree. the process is one thing. the outcome is another. and there's a support system around this president that i think works for him. as to whether or not he should have sat down with bob, that would be for him to judge. i always believe it's better to tell your side of the story. but it was a brief intervention on the golf course and it went like this. mr. president, i think woodward is writing a book about your presidency. he does it about every president. i'm sure he would like to talk to you. you might want to think about that. and that was it. >> and, jake, the president is still upset about the fact he was not able to sit with woodward for an interview with this book. we can expect to hear more from the white house and certainly its allies as the day goes on. >> we should point out woodward put in at least six requests to speak with president trump, including with kellyanne conway

and lindsey graham. >> you got to believe these requests made their way to the president of the united states. kellyanne conway has direct access to the president and certainly she would have mentioned, by the way, in addition to lindsey graham. this book is coming out. you want to talk to him? >> it's a silly criticism. they knew the book was being written. washington, d.c., knew the book was being written and they decided not to let him be available. >> jamie gangel has done a lot rchting on this. you've gone through the book and looked closely at this. it's hard to believe the president didn't know that bob woodward wanted to sit down and interview him. >> it's clear from the audiotape of the conversation between bob woodward and lindsey graham that the president says, oh, it is true that lindsey graham told me that. >> the tape between trump and woodward. >> so at the very least, we know that the president was aware of it and admits that. these -- if his staff did not

tell him that bob woodward wanted to do an interview with him, which i find very hard to believe, they weren't doing their jobs. that's -- if bob woodward is writing a book about you, you say to the president, he would like an interview. the other thing that i think is true, and i wasn't sure if it was in lindsey graham's sound right there is he has said now on the record, bob woodward is a good reporter. and what i can tell you about the book is that there are dozens of inner circle administration white house former and current people who are interviewed. there are hundreds of hours of audiotapes. almost everybody allowed woodward to interview them and record it on tape. but we should explain what deep background is. that gives these people the

protection to say, i didn't do it. deny. because what bob woodward has done is he said you tell me everything. nothing is off the record. but i won't say that you were the person who did it. that said, when you read the book, there are some people who are very thinly veiled. it's not hard to guess who spoke to him. but my reporting is also that there are people who are completely unnamed who are very senior and important who spoke to him as well. >> all right. we'll take a very quick break. when we come back, more discussion about both the supreme court hearings of brett kavanaugh and bob woodward's bombshell new book. this wi-fi is fast.

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itthat's why i lovel the daily fiber wfiber choice,ood alone. with the fiber found in many fruits and vegetables. fiber choice. the number one ge recommended chewable prebiotic fiber. welcome back. we're only moments away from the resumption of the senate judiciary committee hearing meet with judge kavanaugh. five senators so far have asked questions. each senator has 30 minutes or so for questions. the chairman of the hearing, chairman grassley, is resuming this hearing. >> -- to face this next round. if i had to pick an area of clear expertise when it comes to brett kavanaugh it would be the area of judicial nominations. you have been engaged in that at several different levels,

including your own personal experience. and so i'd like to ask you if you would comment on the strategy of your own nomination, specifically, i would like to ask you whether those who were planning that strategy sat down and cleared with you their decision on the release of documents. >> no, i was not involved in the documents process or substance. >> no one told you that you'll be the first supreme court nominee to assert executive privilege to limit the access to 1 help 100,000 documents relating to your service in the white house? >> senator, so there's a couple things packed into your question. so i did study the nominee precedent. read all the hearings. this came up in justice scalia's hearing. so i read that with all his memos from being head of the office of legal counsel. and he was asked about that. and i know with chief justice roberts, there were four years

of information when he was principal deputy solicitor general. that those were not disclosed either. >> but as far white house documents, you are breaking new ground here. or i should say covering up old ground here. >> i guess i -- again, i wasn't involved in the documents, discussions or process or substance in terms of the decisions that were made but in terms of thinking about the issue, in terms of questions that could come to me like justice scalia and chief justice roberts or justice scalia did, i don't distinguish. it's all executive branch documents. justice department documents and white house documents are not different. >> let's realize when it comes to the role of the national archives, we're being asked to give you special treatment. >> i can't comment because i don't know. >> judge kavanaugh, this is your field, judicial nominations. this is your nomination. you are now embarking on this journey in this committee,

denying us access to documents which were routinely provided for other judicial nominees. you had to have known that was taking place. >> senator, i think what justice scalia said in his hearing when he was asked about his office of legal counsel memos is the right thing which is that's a decision for the senate and the executive branch to work out. as a nominee, i will -- and there are long-term privileges and protections, as he mentioned, that were in effect for that discussion. and it's not for the nominee to make that decision. >> well, that is an interesting comment because the way you're being presented to the american people with only 10% of the public documentation that could be provided to this committee is going to reflect on you and your nomination. and of course you know that. >> well, i guess i, again, looking at the nominee

precedent, senator, that was true in justice scalia's case. all his memos from 1974 to '77 when head of the office of legal counsel. a cons kwentsial time, at least as i understand it. those might not have been disclosed. chief justice roberts, four years of deputy solicitor general memos which would have been -- >> you're perfectly fine with this notion? >> no, i said i am -- it's up to the chairman and you and the committee, the senate and the executive branch. >> in fairness, judge kavanaugh, i think it's up to you. i think it's up to you. if you said at this moment to this chairman and to this committee, stop, pause, hit the pause button. i don't want any cloud or shadow over this nomination. i trust the american people. i want them to trust me. i am prepared to disclose those public documents. take senator leahy's line of questioning. he was not the only victim of manny miranda.

i was as well. and i didn't realize this republican staffer had hacked into my computer, stolen my staff memos and released them to "the wall street journal" until they showed up in an editorial. so now your knowledge of this, your role in this, is we're limited to even discuss because of the fact that we are classifying and withholding information about your nomination. first as mr. bill burke who has some magic power to decide what the american people will see about your role in the white house. then the decision by those who put your nomination before us to take 35 months of your service as staff secretary to the president of the united states and to exclude the documents. then the unilateral classification of documents coming to this committee as committee classified in a manner no one has ever seen in the history of this committee. judge kavanaugh, that reflects on your reputation and your credibility. if you said at this moment i don't want to have a cloud over this nomination, i am prepared

to suggest to the committee and ask the committee humbly, please, withhold further hear,s until you disclose everything. why won't you do that? >> senator, i do not believe that is consistent with what prior nominees have done who have been in this circumstance. it's a decision for the senate and the executive branch. justice scalia explained that very clearly, i thought, in his hearing. >> are you happy with that decision? >> i do not -- it's not for me to say, senator. this is a decision, the long-term interests of the senate and the executive branch, particularly the executive branch, are at play. and justice scalia explained that well, i thought. >> i wasn't here for justice scalia, but i will tell you that -- >> let me interrupt without taking time away from you so don't charge him for this time, but here's something that the nominee doesn't need any help for me to answer this, but we don't care what the nominee thinks. we've got to follow the presidential records act.

and that's what we're following is the law. >> mr. chairman, with all due respect, following the presidential records act involves the national archives, the national archives is not involved in this process. it is a mr. bill burke who was a former assistant to the nominee who has decided what will be withheld, what is going to be committee confidential. so it isn't the presidential records act, please. >> well, still, let me make clear here, we anticipate some of this so let me read. criticize the committee process for obtaining judge kavanaugh's records. they have accused us of cutting the national archives out of the process. so this is where i want to set the record straight. president bush acted consistently with federal law when he expedited the process and gave us unprecedented access in record time to judge kavanaugh's record. but we have worked hand and glove with the archives

throughout this process and the documents this committee received are the same as if the archives had done the initial review. in fact, the archives is not permitted by law to produce records to the committee without giving both president bush and a current president an opportunity to review. the national archives was not cut out of the process. as president bush's representative informed the committee, quote, from his letter, because we have sought, received and follow ed archivists' views on any documents withheld as personal documents, the resulting production of documents to the committee is essentially the same as if nara had conducted its review first. and then sought our views in the current administration views as required by law. in other words, the documents this committee received are the same as if the archives had done the national review. we're just able to get the documents faster by doing it this way. which gave the senate and the

american people unprecedented access in record time to a supreme court nominee record. continue. >> mr. chairman, the national archives have stated publicly that the way we're hand ling the records for this nomination are unprecedented and they've had nothing to do with it. they've asked until the end of october to produce records. and they have been told we don't need you. we're going to finish this hearing long before then. i'd like to ask that it be placed in the record the statement from the national archives related to the records related to judge kavanaugh. may i have consent to place this in the record? >> yes, i'm sorry. >> statement from the national archives. >> put in the record, yes, without objection. >> thank you. now i'm going to throw you a pitch you've seen coming for 12 years. i want to talk about the 2006 testimony you gave before this committee. it was at a different time. we were very concerned about the issue of torture and detention

and interrogation. yesterday i asked you to show the american people that you have nothing to hide by coming clean with this on this issue. and i'd like to refer specifically to some of the questions that were raised because of the 2006 testimony. i believe we have here a statement. my question as well as your response. i'm sure you've seen this because it's been reported in the paper that you've been waiting for this question for a long time. when i was back in the day a trial attorney preparing a witness for interrogation testimony, deposition, giving testimony at trial, i said two things. tell the truth and don't answer more than you're asked. don't volunteer information. judge kavanaugh, you failed on the second count. the question i asked you. what was your role in the

original hanes nomination. at the time of the nomination, what did you know about mr. haynes role in crafting the administration's detention and interrogation policies? your response? senator, i did not. i was not involved. and am not involved in the questions about the rules governing detention of combatants or, and so i do not have the involvement with that. and with respect to mr. haynes nomination, i have known jim haynes, but it was not one of the nominations that i handled. >> i can't see the bottom. got it. >> i asked you about this when we had a meeting in my office. >> yes. >> i still don't understand your answer. in terms of how you could state as clearly and unequivocally. i was not involved and am not involved. the questions about the rules of governing detention of combatants. you were involved in the discussions about access to counsel for detainees. you confirmed this during the meeting we had in my office and

there are multiple media reports as well. you were involved in discussions regarding detained u.s. combatants, hamdi and padilla. you confirmed that in our meetings and there are e-mails that support that fact. you were involved, and this is one i want to be specific about. you were involved with president bush's 2005 signing statement on senator john mccain's amendment banning cruel, inhuman and degrading treatment of detainees, and you confirmed that in the meeting. there were no exceptions in your answer given to me in 2006, not for litigation or detapee access to counsel or the mccain torture amendment. so if those three, based on the limited documents we've been given are obvious, what were you trying to tell me here? did you really disclose accurately your role? >> yes, i understood the question then, and my answer then, and i