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 understand --

>> people have human rights. we're allowed to -- >> go ahead. >> i understood the question then and the answer then n i understand the question now and the answer now to be 100% accurate. you were concerned about whether i was involved in the program that two other nominees had been involved in. and the report that senator feinstein produced, the justice department report. they showed that i wasn't. the program, crafting the program for the enhanced interrogation techniques for the detainees -- >> judge kavanaugh, that's not the question. do you see me asking you whether you crafted the program? i didn't. i asked you about your involvement in the haynes judgment and then -- >> crafting the -- >> yes.

then you went further. you violated the second rule i give to every witness. you answered more than i asked. >> i adhered to the first one. i told the truth. >> you volunteered more information than i asked and you went further than you should have. in the three specific instances i gave you, you clearly were involved in questions about rules governing detention of combatants. >> so i understood the question then, and i understand it now and my answer about that program, i told the truth about that and the reports that have come out have shown i told the truth about that. my name is not in those reports. now for the 2005 signing statement, by that time i'm in staff secretary office and everything that went to the president's desk, everything that went to the president's desk with a few covert exceptions would have somehow crossed my desk on the way. so you asked. i said on a signing statement it would have crossed my desk on the way.

so would a speech draft on the iraq war. so would a speech -- those things would have crossed my desk. prepared by others. they crossed my desk on the way to the president. >> in the 2006 hearing you told arlen specter, you gave president bush advice on signing statements including identifying potential constitutional issues in legislation. did you make any comments regarding the december 30th, 2005, signing statement on mccain torture amendment, including potential constitutional issues? >> i can't recall what i said. i do recall that there was a good deal of internal debate about that signing statement, as you can imagine there would be. i remember that it was controversial internally. and i remember that i thought -- i can't remember all the ins and outs of who thought what. but i remember the counsel to the president was in charge

ultimately of signing statements in terms of the final recommendation to the president. >> and just a few months later, you, under oath, told us you were not involved in any of the questions about the rules governing deattention of combatants. >> senator, i understood it then and i understand it now to be referring to the program we were talking about that was very controversial that senator feinstein spent years trying to dig into, and i was -- i was not read into that program. i told the truth about that. and -- >> let me go to another area of questioning, if i can. thank you very much. in your dissent in garza versus hargan, the court had created a new right for unlawful immigrant minors in the united states government. detention to obtain immediate abortion on demand. thereby barring any government

efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. you argued that permitting the government additional time to find a sponsor for a young woman in the case did not impose an undue burden. even though the government's conduct in the case had already forced her to delay her decision on an abortion by several weeks. we are talking about a young woman characterized as jane doe who discovered she was pregnant after crossing the border into the united states. she made a personal decision that she was not ready to be a parent and did not want to continue her pregnancy. she went through every step necessary to comply with texas state law as well as steps forced on her by the federal government. she visited a religious anti-abortion crisis pregnancy center. underwent an ultrasound for no medical purpose, and went before a judge and obtained a judicial bypass of the parental consent requirements. in other words, this young woman

complied with every legal requirement, including texas state requirements, placed in front of her so she could move forward with her decision. a decision affecting her body and her life. do you believe this was an abortion on demand? >> senator, the garza case involved first and foremost a minor. it's important to emphasize it was a minor. >> yes. >> she's in an immigration facility in the united states. she's from another country. she does not speak english. she's by herself. she had been an adult, she would have a right to obtain the abortion immediately. as a minor, the government argued that it was proper or appropriate to transfer her quickly first to an immigration sponsor who is an immigration sponsor, you ask? it is a family member or friend

who she would not be forced to talk to, but she could consult with if she wanted about the decision facing her. so we had to analyze this first as a minor and then, for me, the first question always, what's the precedent? the precedent on point from the supreme court is there is no case on exact point so you do what you do in all cases. you reason by analogy from the closest thing on point. what's the closest body of long point? the parental consent decisions of the supreme court where they've repeatedly upheld parental consent laws over the objection of dissenters who thought that's going to delay the procedure too long. up to several weeks. and i'm getting to the point. >> before you get to the point, you've just bypassed something. you just bypassed the judicial bypass which she received from the state of texas when it came to parental consent. that's already happened here.

>> but that is -- >> you're still stopping her. >> i am not. the government is arguing that placing her with an immigration sponsor would allow her, if she wished to consult with someone about the decision. that is not the purpose of the state bypass procedure. i want to be clear about that. >> but, judge, the clock is ticking. >> it is. >> the clock is ticking. 20-week clock is ticking. she made the decision early in the pregnancy and all that i've described to you, the judicial decisions, the clock is ticking. and you are suggesting that she should have waited to have a sponsor appointed who she may or may not have consulted in making this decision. >> again, this is -- i'm a judge. i'm not making the policy decision. my job is to decide whether that policy is consistent with law. what do i do? i look at precedent. and the most analogous precedent. from casey has this phrase.

minors benefit from consultation about abortion. it's a quote. talking about consultation with -- >> so you're adding a requirement here beyond the state of texas requirements that there be some sponsor chosen who may or may not be consulted for this decision. and the clock is ticking on her pregnancy. >> a couple things there, senator. you said you are adding. i'm not adding. i'm a judge. the policy is being made by others. i'm deciding whether the policy is then consistent with supreme court precedent. there are two things to look at in this context. first is the government's goal reasonable in some way? and they say we want the minor to have the opportunity to consult about the abortion. the supreme court precedent specifically says -- specifically says that that's an appropriate objective. >> was that a state requirement? >> the second -- >> was that a state requirement? >> the second question is the

delay. your point. in the parental consent cases of the supreme court recognize that there could be some delay because of the parental consent procedures. in fact, justices marshall, brennan and blackman repeatedly dissented in cases because they thought the delay was too long. i quoted all that in my garza opinion and made clear it had to happen very quickly. and i looked at the time of the pregnancy to make sure on safety. i specifically talk about safety. i specifically say the government cannot use this as a ruse to somehow prevent the abortion. i spent a paragraph talking about she was in an undeniably difficult situation so as i was saying to senator graham earlier, i tried to recognize the real world effects on her. i said consider the circumstances. she's a 17-year-old, by herself, in a foreign country. in a facility where she's detained. and she has no one to talk to.

and she's pregnant. now that is a difficult situation. and i specifically recognized and tried to understand that and then as a judge, not the policymaker, i tried to understand whether the government's policy was consistent with the supreme court's precedence. and i did the best i could. i said on those parental consent, i said some people disagree with those and think those statutes should not be allowed. but i had to -- precedent is not like a cafeteria where i can take this, but not that. i had to take casey in completely. casey reaffirmed roe. >> i have some other questions. so i ask you if you please -- >> it's an important question, though. and i want to -- >> i did my level best in an emergency posture. so what i had to -- basically two days to -- >> 2-1 decision which you dissented from. >> i did the best to follow precedent. and as i always try to do to be as careful as i can in following

the precedent of the supreme court. >> let me ask you a personal question. what's the dirtiest, hardest job you've ever had in your life? >> i worked construction when i was the summer after i was 16. for a summer, 7:00 a.m. to 3:30 p.m. my dad dropped me off every morning at 7:00. 6:55. he wanted me to be early. and that's probably the one. i also, i should say, i had what one person, i guess, a lawn business for many years. i cut a lot of lawns. and that's how i made some cash when i was -- i started that probably eighth grade. maybe seventh grade. i cut my parents' lawn but then cut a lot of lawns in the neighborhood and distributed

flyers to all over the place to say if you need your lawn cut, call me. so lawn cutting and then the construction job, the one summer. >> my dirtiest job i ever had was four summers working in a slaughterhouse. >> yes. >> i always wanted to go back to college. >> yes. >> couldn't wait to get out of there. it was unbearable. it was dirty. it was hot. the things i did were unimaginable and i wouldn't even start to repeat them. then came a case before you called agra processor company versus nlrb. at least one-third of the workers in our nation's slaughterhouses are immigrants. it stands -- visits to iowa or illinois, probably delaware, you pick it. you're going to find a lot of immigrants doing these miserable, dirty, stinking, hot jobs. many of them are undocumented.

the work is low paid and dangerous. and as the gao has noted, immigrants are pressured not to even report injuries on the job. ag raprocesses case was a notorious meat-packing company owned by someone convicted of 86 counts of fraud and money laundering in 2009. his 27-year sentence recently was commuted by president trump. agra processors had at the core of its business model the exploitation of undocumented workers. half their workers, almost 400 of them, were not authorized. workers allege the company fostered a hostile workplace. environment that included 12-hour shifts without overtime pay, exposure to dangerous chemicals, sexual harassment and child labor. a truck driver at agra processors brooklyn warehouse told reporters, quote, we were treated like garbage, and if we said anything, we got fired

immediately. judge kavanaugh, you bent over backwards to take the company's side against these workers. in a 2008 d.c. circuit case, agra processor versus nlrb, your dissent argued the company's workers should be prohibited from unionizing because they did not fit your definition of an employee. to reach this conclusion, you imported a definition of employee from a totally different statute. you ignored the plain language of the controlling statute, the national labor relations act, which has a broad definition of employee as well as blinding supreme court precedent. the majority in this case, and you were a dissenter. the majority noted their opinion stuck to the text of the national labor relations act and to the 1986 immigration reform and control act which did not amen amend the national labor relations act. your dissent, these other judges

said about your dissnent, would abandon the context of the controlling statute and would lead to an absurd result. the majority included one republican and one democratic appointed judge. judge kavanaugh, you claim over and over again to be a contextualist. to be care fli weighing every word of a statute. so why did you go out of your way to interpret the word employee in a way that benefited this horrible business and disadvantaged these exploited workers. why didn't you stick to the plain language of the controlling statute and the binding supreme court precedent? >> because the supreme court precedent compelled me to reach the result that i reached. and here's why, senator. let me explain. the supreme court had a case in 1985 called the shirtan decision. and the shirtan decision considered the interaction of the national labor relations law act and the immigration laws. and what the supreme court did

in shirtan is had this question and said it is, at that time, permissible to consider an immigrant unlawfully in the kupts as an employee under the labor relations act. in part 2b of the opinion, you have to read part 2b of the opinion of the supreme court's opinion. if you read part 2b, the court then goes on to say, and because the immigration laws do not prohibit employment of people unlawfully in the country. it makes clear, the supreme court makes clear this is when it's being considered in congress in '84. the court makes clear as i read part 2b, and i think i'm correct on this, that if the immigration laws did prohibit employment of someone here unlawfully in the country, then that would also mean that they can't vote in the union election. so what i was doing there, senator, all about precedent. i read that and my opinion, if you look at the dissenting opinion. i really parsed this carefully

and went deep into this case. i went back and pulled from the shirtan case, i went and asked for the marshall papers. thurgood marshall papers from the library. i cited the oral argument to make sure that they -- that what i was reading there was reflected what had been going on in the supreme court. and it's quite clear from the oral argument they were aware the immigration law was about to be changed, and they were aware of the interaction between the labor law and immigration law. so i think i stand by what i wrote then and i think i correctly analyzed part 2b. now, senator -- >> i'm going to have to -- i'm running out of time. >> if it ends -- if the supreme court shirtan opinion had ended at part 2a, 100% would agree with you and my decision would have been different. >> if you read part 2b -- >> you said earlier today you don't get to pick and choose which supreme court precedent you follow.

the majority in agra processors was following supreme court precedent. in shirtan case, the supreme court, a 7-2 decision, said undocumented immigrants are employees under the national labor relations act. since undocumented aliens are not among the few groups of workers expressly exempted by congress, they plainly come within the broad statutory definition of employee. that's a quote from the case. >> that's part 2a. go to part 2b. >> let me tell you people that went to both parts. everyone else who looked at this question, the administrative law judge, the national labor relations board, including republican appointees, two appeals court judges, including one republican appointee, followed the supreme court precedent and came to the opposite conclusion that you did. i understand you may have preferred the shirtan dissent, but you failed to follow supreme court precedent. this was a case where the national labor relationsing at, included those who were

undocumented who would unionize to protect themselves in the workplace. you went out of your way to dissent all the way along and make sure they didn't, in your view, not have that right that they did not have that right to unionize. >> very respectfully disagree, senator. and the reason i disagree is the supreme court did say that the immigrant was covered under the definition of nlra. if it ends there i'm with you 147b 100%. then the supreme court goes on to say, the conflict between the national labor relations act and the immigration laws, it makes clear as i read it, if the immigration laws had made employment of someone here in the country unlawfully, illegal, then that would be prohibited in the case. i went back like i said. if you look at -- i quote the oral argument transcript from shirtan. and i had no -- i have no agenda

in any direction on the -- i'm a judge. i'm just trying to resolve the precedent. >> let me close by saying this. i am just a judge. i just follow precedent. gosh, we've heard that so often. and i hope it's the case, but we know there's much more to the -- to your job than that. >> i agree. >> the fact that you were a dissenter and everyone else saw this the other way should give us pause when you say i'm just following precedent. >> i respectfully, senator, that opinion, i'm proud of that opinion because i think it carefully details the law in that case. i'm following the supreme court precede precedent. and to your point other judges disagree, i'll just -- there was a case i had about ten years ago called papano where i ruled in favor of a criminal defendantant on a restitution matter. i wrote the opinion. every other court after us disagreed. finally got to the supreme court

this year in the lagos case, and they agreed with our one opinion. the papano opinion. just to point out, that just because other courts of appeals might have disagreed does not necessarily mean we were necessarily wrong because the supreme court ultimately decides that. i understand your question. i appreciate them. thank you. >> senator cornyn and senator lee is going to chair while i have another appointment. senator? >> thank you, mr. chairman. mr. chairman, i was grateful that today's hearing, at least as far as the committee is concerned, is a lot more dignified and civil. but, unfortunately, some of the hijinks continue even on the senator floor. senator mcconnell asked consent for the judiciary committee to continue meeting during today's session of the senate. senator schumer objected. so senator mcconnell was left with no option but to adjourn the senate and allow the committee to continue to meet.

that's unfortunate loop so judge, i believe we met in the year 2000. >> yes. >> and just to take a little walk down memory lane here, when i was attorney general of texas and had a chance to argue a case in front of the supreme court of the united states, you, ted olsen and paul clement, i believe, helped me get ready. i regret you didn't have better material to work with. >> it was an honor, senator. >> it was a great experience, and educational experience, but i got to appreciate your skills as a lawyer from that time and have followed your career closely since. and i'm proud to support your nomination based on my personal knowledge of your skills, your temperament and your character. and your fidelity to the rule of law. but i do want to pick one bone with you. i did this -- this isn't unique

to you. based on that experience. that case, as you may recall, involved a tradition in the santa fe independent school district which is the site of a shooting here in more recent days, but back then, the practice before football games was that the students would be able to volunteer to offer a prayer before the football game. they weren't required to do so. the school didn't pick them. they could offer an inspirational saying or read a poem or anything else. but that was the practice. well, until the aclu filed suit and, unfortunately, it was held to be unconstitutional and in violation of the establishment clause. i'm not going to ask for your opinions because this issue will likely come back before the court, but since i mentioned it to judge gorsuch, i'm going to mention it to you. the thing that has stuck in my craw for the last 18 years is the dissent written by chief

justice rehnquist which takes exception to the majority's decision saying they distorted existing precedent. but he goes on to say, even more disturbing that it's holding is the tone of the court's opinion. it bristles with hostility to all things religious in public life. neither the holding nor the tone nor the opinion is faithful to the meaning of the establishment clause. when it is recalled that george washington's -- the george washington himself at the request of the very congress which passed the bill of rights proclaimed a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many and signal favors of the almighty god. since i had you here, i thought i'd mention that. i'm not asking for your opinion since likely you'll be called

upon to decide cases involving the establishment clause in the future. but since we had that history together, i thought i would just tell you that still sticks in my craw. >> i understand, senator. we remember certainly cases i lost. i remember they still stick in my craw, too, senator. >> i just marvel that under the first amendment that we can -- a variety of voices can speak. and that's generally a good thing. but it can be about violence, sexism. it can be about almost anything, but you can't speak about religion in a public forum. >> there have been, you know, there have been cases from the supreme court, i am thinking more recent years, cases like the good news club case. cases like the trinity lutheran case. cases like the town of greece case where i think the supreme court has recognized the

importance of course of religious liberty in the united states and also has recognized, i think, that religious speakers, religious people, religious speech is entitled to a space in the public square. and not to be discriminated against. i think the trinity lutheran case is an important one on that. the good news club case, that's a case where as an after-school program at a school gym, i think, or auditorium and the religious group was excluded and the supreme court said you can't just exclude the religious groups. there have been some developments since then in terms of religious equality and religious liberty that are important. they are always difficult factually. but the principle you're espousing is in some more recent supreme court precedent. >> as i understand the constitution that requires the government to be neutral and as

chief justice rehnquist, i think in this case, the government evidenced hostility. that's just one person's opinion. and again, i'm not asking you for any opinion with regard to anything that may come before the case. >> [ inaudible ]. >> mr. chairman, i hope that time won't be subtracted from my 30 minutes. >> it will not be. >> thank you. so judge kavanaugh, i'm intrigued by a comment that you made earlier about the role of precedent. we've heard a lot about precedent. you alluded to this book that you and others -- other judges wrote with brian garner.

>> yes. >> on the law of judicial precedent. i checked it out. it's 900 pages long. and i haven't read every page of it either. >> it's not meant to be read word for word. it's a treatise where you go to a section that may be on point or something. >> let me ask you a more basic question and we can work our way into that. when people go to court, should they expect a different outcome if the judge was nominated by a republican from a court where the judge was nominated by a democrat? >> no. that's an important principle of judicial independence and the judicial role. the judge's umpire vision that chief justice roberts articulated and i've talked about publicly many times is critical. when you go to a baseball game, the umpire is not wearing the uniform of one team or another. and that's a critical principle. >> well, it strikes me as an important point given the

suggestion that one of the reasons people have objected to your nomination is, i believe, the quote was you have republican blood flowing in your veins. it strikes me as a strange and bizarre statement. >> i've been a judge for 12 years, senator. i'm 307 opinions, i'm very proud of that record. been an independent judge for 12 years. you're not, as a judge, you're not a republican or a democrat as a federal judge. >> and you talked about a little bit about the constitutional basis for a judge's obligation to apply existing precedent. could you expand on that a little more because i think most people are under the impression this is a discretionary matter and you can sort of cherry pick between what precedents you decide to follow and which ones you don't follow. >> well, there's been a debate sometimes about what are the origins of precedent? why do you follow precedent. and as i see it, there are a number of reasons you would

cite. stability, predictability, impartiality. reliance interests. but all of those are not mere policies in my view. as i see it, the system of precedent comes from article 3 itself. when article 3 refers to the judicial power, shall be vested in one supreme court and such inferior courts as congress shall from time to time establish. to my mind, the phrase judicial power. you think about what is that entail? and you look at the meaning, the meaning at the time of judicial power and you look one source of that is federalist 78. and that, in federalist 78, it's well explained that a judge makes decisions based on precedent. and precedent, therefore, as i read judicial power has constitutional origins in a constitutional basis in the text of the constitution. >> and i think you've touched on

this as well. judges, unlike legislators, don't run for election. you don't have a platform. >> no. >> vote for me. this is what i'll do if elected into office. one of the most important elements of limiting the important role of judges, i think, under the constitution is that you're required to decide a case on a case-by-case basis, rather than issuing some sort of oracle saying henceforth, the law will be thus. assuming you could get eight other judges on the team of nine you talked about to agree with you. can you talk about the importance of deciding cases on a case-by-case basis? >> we'll add another 20 seconds. >> absolutely, senator. it's important to understand, and i think senator graham alluded to this as well. as judges, you don't just issue policies or issue opinions out of the blue. you decide as the article three

says, cases in controversies. and that means there's a process. litigants come in to the federal trial court. and, for example, litigate against one another. and there's a process there. a trial or summary judgment motion that the district judge renders a decision. then that comes up to the court of appeals. in my case. and there's briefing and oral argument. i like to say there's a process. i like to say process protects you. it's one of my things i always like to keep in mind. you go through a process to help make good decisions, deliberative process. and we have a process. judges are very focused on process. and having that oral argument. having the briefing. and then talking to your colleagues. you change your mind, you know, senator. you've been a judge, of course. you change your mind sometimes based on the comments of colleagues. that process is important. then to your point about deciding that case, you write an opinion. you're not trying to resolve

every issue imaginable. you're trying to resolve this case under the principles and precedents, the text of the law in question. the text of the statute in question and decide that case or controversy. and that's how judges build up the system of precedent over time by deciding one case at a time and not trying to do more than they can or more than they should. >> [ inaudible ]. >> judge, don't you think that what you've described for us and deciding cases on a case-by-case basis has an important foundation in fairness to the litigants. the parties that come to your court because how would somebody feel if they know you've already announced in all cases that have to do with subject x. i've made up my mind. i don't care what the facts are. isn't that unfair to the litigants? >> it can be, senator, at least

where an overbroad ruling may resolve things that people who are affected by it may have thought, i wasn't part of that case. why am i now affected in a particular way. i think one of the things i can say about how i've tried to write my opinions, the 300 opinions, is i'm always concerned about -- i'm always concerned about unintended consequences. this is one of the reasons i go through so many drafts in my opinions and really work through them is really even just a sloppy footnote or an ambiguous word in an opinion, it's true when drafting laws here, too. but -- if you don't -- you're concerned about unintended consequences. it's important to be clear in the opinions and to be exactly precise and not to decide too much.

>> judge kavanaugh -- >> judge, let me ask you to tell us a little bit about september the 11th, 2001. where were you when you heard that the planes hit the world trade center in washington, d.c., and another plane hit the pentagon here in washington. >> i remember i was -- >> you were working in washington. >> i was in the west wing when it hit the second tower. up in the upstairs counsel's office with a couple other people in the counsel's office. downstairs and then told to get out and run out because there was fear as we later learned about flight 93. don't know whether it was headed to the capital or the white house or some other target and the heros of flight 93 saved so

many americans. sacrifice that, of course, we still all celebrate in the sense of celebrating their lives and their heroism, for saving all of us here in washington. but it ended up out in lafayette park with the rest of the staff and bewildered. it changed america. it changed the world. it changed the presidency. it changed congress. changed the courts, all the issues that came before. a new kind of war, as president bush described with an enemy that didn't wear uniforms and that would attack civilians. so new kinds of laws had to be considered and congress had to work through that and president bush had to focus so intently. as i've said before, my remembrance is that on september 12th, his basic mentality was, this will not happen again.

and having traveled with him from 2003 to 2006 everywhere as staff secretary and seeing him up close, i still think every day i was with him during those years, every morning when he got up, it was still september 12th, 2001. this will not happen again. and to see that focus. of course, he had to do all the other things of the presidency and all the other legislative and regulatory and ceremonial aspects. but he was so focused on that. i'm sure that's been true of the succeeding presidents as well because the threat, the threat still exists, of course. >> well, as we came to learn, osama bin laden and al qaeda was responsible for that attack. and has now morphed into other organizations like isis and the like. but i want to ask you, you had

to then sit in judgment later on in a case, the hamdan case which you've alluded to earlier, where the defendant was osama bin laden's personal bodyguard and driver. he was captured by u.s. forces in afghanistan after 9/11 and detained in guantanamo bay. he subsequently went through a military tribunal and then that case was appealed to your court. and just correct me if i'm wrong, but notwithstanding the experience you and everybody you cared about having been through this terrible travesty of 9/11, you ruled in favor of osama bin laden's bodyguard and driver, correct? >> that is correct. i wrote the majority opinion. >> how could you do that? how could you possibly do that? >> the rule of law applies to all who come before the courts of the united states.

>> even an enemy combatant? >> equal justice under law. everyone is entitled. >> even a noncitizen? >> yes. noncitizens who are tried in u.s. courts, of course, have the constitutional rights. and really my model on that judicial model for thinking about something like that, because i thought about what you're asking about. justice jackson, of course, robert jackson who had been franklin roosevelroosevelt's at general. one of roosevelt's policies, justice jackson, now the majority opinion now overruled, but justice jackson dissented and ruled against the roosevelt policy. justices clark and burton, two appointees of president truman, are the two deciding votes in youngstown steel. that's a 6-3 decision. those two are the deciding

votes. they were both appointees of president truman. they get to the -- and it's wartime against korea. they get to the supreme court. they are the deciding votes in the youngstown steel case which was an extraordinary national moment, one of the great moments. and so it's -- your conception of the role of a judge is, it's about the law. that's distinct from policy and our judiciary depends on having people in it. and we are fortunate to have a wonderful federal judiciary. people in it who understand the difference between law and policy and are willing to apply principles of equal justice under law to anyone who comes before the court, even the most unpopular possible defendant is still entitled to due process and the rule of law. i've tried to ensure that as a judge. >> it's hard to imagine a more unpopular defendant than osama bin laden's driver.

personal bodyguard. so i find the suggestion that somehow you are prejudiced against the small guy, in favor of the big guy, or that you are picking and choosing who you're going to render judgment in favor of, based on something other than the rule of law, i think this answers that question conclusively for me. the fact that you could separate yourself from the emotional involvement you had along with so many people you worked closely with in the white house on september 11th. and you could then, as a judge, after you put on the black robe, take the oath of office, you could then render a judgment in favor of osama bin laden's bodyguard and driver because you applied the law equally to everybody that comes to your court.

sometimes the -- let me allude to something senator sasse was eloquently speaking about yesterday in terms of the separation of powers. very important aspect of our constitutional system and one that i know you have dealt with often on the d.c. circuit court of appeals. and that has to do with what i've read some judges talk about, some constitutional scholars talk about. a conversation between the branches. in other words, when the d.c. circuit court or supreme court decides a case, they finally decide that case. but they don't finally decide what the policy is. >> that's right. >> for the united states or the american people. correct? >> that's correct, senator. one of the important things that judges can do is adhere, of course, to the laws passed by congress, but then in writing the opinion make clear, and i've

done this before and a lot of my colleagues do this, is that perhaps the statute needs updating, but if it does, that is the role of congress to update the statute. or if there's sometimes a hole in a statute or something that seems unintended in a statute. and to alert congress to that. chief judge katzman of the 2nd circuit. a great judge i served with on the judicial branch committee appointed by the chief justice. and he has written a book about statutory interpretation. he's also been a leader of a project to make sure that congress is alerted of potential statutory issues that look like they might have been things that perhaps congress would not have intended or congress would want brought to its attention so it could fix and -- >> [ inaudible ]. >> and so that project has been very successful. i think chief judge katzman, even without that project, how you write your opinions is

important. we don't update the statutes. you update the statutes. but it's good for us to write our opinions in ways that points out potential issues congress may want to be aware of. >> that's part of the two branches of government. >> that's part of the dialogue to have between congress and the judiciary in the back and forth is very important on that front. and i think that's one thing i am always thinking about in my opinions. you write the laws, but if the law looks like there's some issue with it, some flaw or something that might be an unintended consequence in the opinion, you can identify it. and that can be something that congress can turn its attention to sometimes. because i am well aware that statutory drafting is a very difficult process. it's something that i think judges need to be more aware of. how difficult the legislative

drafting process is. even if you're doing it as one person, it would be difficult but then you're doing it as a collective body and then doing it with the house and with the president involved. there are a lot of people in it. and it's hard to have, with all the compromises inherent in that, hard to have crystal clarity on every possible topic. as judges, number one, we have to recognize the process that you go through as legislators. that means adhere to the compromises that are made. the text as written. but also when we write our opinions, if there seems to be something thnot working out, it appropriate for judges to point that out in their opinions. >> and, of course, even if it's a constitutional basis for your decision, that could be changed by constitutional amendment, correct? >> that's correct as well. the framers did not think the constitution was perfect by any stretch. they knew it had imperfections.

for starters, the original constitution did not have the bill right ofs. the first ten amendments. so there was a lot of discussion at the ratifying conventions about having a bill right ofs. and that was quickly done in the first congress in new york in 1789 by the james hmadison, taking the lead on that. so, too, they did not think it was perfect. they have an amendment process that specified in article 5 of the constitution. and that amendment process was intended to be used. we've seen it used to correct structural issues. the 12th amendment on presidential elections. the 17th amendment, of course, as you all know well on senate elections. the 22nd amendment which limited presidents to only two terms. the 25th amendment which corrected some issues with respect to vice presidency. and so, too, of course, the 13th, 14th and 15th amendments. the most important amendments in

the constitution in many respects because it brought the promise of racial equality that had been denied at the time of the original constitution into the text of the constitution. so the job of the people, which is the congress and the state legislatorures is to amend the constitution. it's not up to the judge to do it on our own. that's a basic divide of constitutional responsibility that is set forth in the tsks artic text of article 5 of the constitution. >> i can't remember who said it, justice jackson perhaps who said the supreme court is not final because it's always right. it's right because it's final or words to that effect. but i always thought the more i got into that, the more i disagreed with that because it is a conversation between the branches. and if the american people

believe that it's a constitutional matter, the way the constitution is being interpreted, it's within our power as the american people to change our own constitution by amendment. there's provisions in the constitution itself to do that. it's hard, and it should be hard. but ultimately, the authority that we delegate to the government finds its origin in the consent of the governed. it's not something dictated to us from down on high from the marble palace or somewhere like that here in washington. it is ultimately our government, our responsibility, our authority that provides legitimacy to the government itself. you agree with that? >> i agree. of course, with that, senator, the people -- we the people form the constitution of the united states. and the sovereignty, the people are the ultimate authority. and you're right about justice jackson's line. i think it is a clever line. but ultimately, i agree with

you. i have always had a little bit of a problem with that line because we're infallible because we're final. no, both parts of that are wrong in some sense because i never want to think of the court i never want to think of the court as infallible and never want to think of it necessarily in the way you're describing it either. because the people always have the ability to correct through the amendment process. now the amendment process is hard and hasn't been used as much in recent decades but, of course, at the beginning of the country, the amendments were critical and dred scott, of course, the awful example of a horrific supreme court decision that is then corrected, in part, at least on paper, in the 14th amendment, 13, 14th amendments. and that's an important example, i think, of -- probably the best example, frankly, of the point you're making about the people being able to respond to

horrific decision of the supreme court. >> in fairness to justice jackson, maybe he was thinking, as i originally thought, about the expression of being binding on lower court judges, trial judges, apellate court judges. to decide what laws should fworch. >> i think that's probably right, senator. justice jackson is one of our greatest justices. to question anything is -- whether it's youngstown, morrisette, he wrote the greatest opinions and example of judicial independence as well. on that one line, i take your point. >> let me ask you one last question. we talked a lot about role of

precedent. senator feinstein talked about staer decisis, cases that hadn't been decided or provide the precedent for future cases. but on occasion, the supreme court has decided that its decisions were just wrong and chosen to overrule those previous decisions. i'm thinking of plessi versus ferguson that said separate but equal educational facilities met the constitutional requirement of the 14th amendment. but can you talk about the extraordinary circumstances under which the supreme court would revisit a precedent? >> well, brown versus board of education, of course, overturned plessi and plessi was wrong the day it was decided. it was inconsistent with text and meaning.

14th amendment which guarantee ed equal protection. and they said what is this amendment but that the law should be the same for the black and the white and the supreme court, unfortunately, backtracked from that clear principle and the plessi decision and a horrific decision, which allowed separate but equal and then brown versus board corrected that in 1954, of course, corrected it on paper. it's decades and we're still seeking to achieve racial equality, the long march for racial equality is not over. brown versus board, as i've said publicly, many times before, the single greatest moment in supreme court in many ways, the

unanymity. the fact that it understand the real world consequences of segregation on the african-american students who were segregated into other schools and stamped with a badge of inferiority. that moment is so critical to remember, the opinion is so inspirational. it's a relatively short opinion but on the equal protection clause and protecting that awful precedent of plessi versus ferguson. great example of leadership. and on process, last point i'll mention, they knew they were going to face popular backlash. they knew. they still did it. that shows independence and fortitude. but they also had reargument. they had argument originally and

decided there's a lot going on and maybe not everyone has seen it the same way as the justices and they had a reargument. keep working at it. keep working at it. and see the team of nine that i mentioned yesterday and mentioned today. keep working at it as a team of nine and they came out unanimous. chief justice warren, thankfully, led the court in that decision. the greatest moment in supreme court history. >> thank you, judge. >> thank you. senator whitehouse is next. thank you. are you good for another half hour? >> i'm good. >> all right. in my office, you told me that you could provide no assurance to me that you would uphold a statute requiring insurance companies to provide coverage for pre-existing medical conditions. is that still true here in

public? >> i think, senator, it's important to understand the principle at play here. >> we've talked about that but is the statement that you made -- have i recited it accurately? >> judges like to explain their decisions. >> but i get to ask the questions. usually you get to ask the questions because you're the appellate judge but today for half an hour, i get to. is it still true that you can give no assurance that you would uphold a statute requiring insurance companies to cover pre-existing medical conditions? >> so to prepare for this moment, i went back and read -- >> i really would like you to be as careful with your time as you can. i have a very limited amount of time with you. so the quicker you can get to the answer, it could be as simple as yes or no. >> i can enhance your

understanding of my answer if i explain it, i think. >> i really just want your answer on the record. i think i'm pretty capable of understanding it on my own. >> but then everyone, to understand, my answer. so there's nominee precedent of how justices and nominees, in my position, have answered in the past. i'll be succinct, if i can. and all eight sitting justices -- >> you said this in the hearing so people who are listening and interested actually have heard you say this already. >> i think it's really important. >> say it again. >> i want to underscore it. all eight sitting justices of the supreme court have made clear that it would be inconsistent with judicial independence rooted in article iii to provide answers on cases or issues that could come before us. justice ginsburg, justice kagan, talking about precedent, no thumbs up or down. justice thoroughood marshall

said what do you think about miranda? >> everyone else does it so your answer is no? >> it's a combination of my respect for precedent, nominee precedent and my respect for judicial independence. so i can't give assurances on a specific hypothetical. >> let me go on to another subject which is executive privilege. executive privilege is a principle that is founded in the constitution and the separation of powers, correct? >> the supreme court so ruled in the united states versus richard nixon case. that was the first -- the key issue in the united states -- >> that's all right. i just need the answer to the question. you've answered it. >> source is important. >> as a privilege it needs to be asserted, does it not? that's true of privileges generally? >> i don't know where you're -- where this is going but the -- >> pretty straightforward question. don't privileges need to be

asserted in order to apply? >> privileges are recognized. >> once they're asserted? >> i think as a general proposition. >> fair enough. all i'm asking is a general proposition. >> in attorney/client privilege you would assert the attorney/client privilege. >> who asserts executive privilege? >> ordinarily -- that is a complicated question, senator. >> who does it come back to? ultimately, who asserts executive privilege? >> it depends what you're talking about, what sort of executive branch document you're talking about. it depends. in my experience -- >> ultimately it's the president? >> there's not as much precedent on that. there's some. the supreme court in the united states versus richard nixon -- >> isn't it fair to say that executive privilege belongs to the president of the united states, the chief executive? >> yeah. it can also belong to the former president in the case of former

presidential records. that's one caveat i want to put on that. >> fair caveat. >> is the assertion of executive privilege by the president subject to judicial review? >> well, of course, because under the precedent, united states versus richard nixon, said two things. one, the executive privilege is constitutionally rooted. they argued that actually there was no such thing as executive privilege and the supreme court rejected that argument and held that executive privilege is rooted in the spraem separation of powers in article ii. >> the reason i'm asking doesn't have much to do with you. it goes back to a point that we were talking about earlier in the hearing, which is that we have received hundreds and hundreds of pages of documents of your record that look like this. they both