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 say, cleonfidential a

an angle and then constitutional privilege. i find myself in in a quandary about being denied those particular documents. i cannot find any assertion of the privilege. these documents suddenly appeared and somebody had put constitutional privilege on the page and wiped out all the text that was on the page. my understanding is that there's ordinarily a process to get to that determination that allows for, ultimately, judicial review. and we have failed to get subpoenas out of the committee for documents so we can't trigger it that way. and there's no apparent assertion of executive privilege i can find in the record of how this particular paper got here. so i just wanted to establish some of the basic ground rules of executive privilege with you.

s that is something that we commonly agreed. and in particular to congressman leahy's questioning, some of the documents he's looking for that have been protected by this nonassertion of assertion of executive privilege. it's a problem in the committee. we've had other witnesses come and do nonassertions of assertion of executive privilege. i'm sorry to drag committee business before you but it's important we get this right. >> can i make one addendum? i don't think formal assertions aren't made until a subpoena. >> which is why not being able to get a subpoena out of the committee boggles the process, indeed. the role of the federal society in bringing you here today has been of interest to me. as you know, we spoke about it quite a lot when you and i met

in my office. mr. mcgahn, sitting patiently behind you. i can see him over your shoulder. >> yes. >> has said that the federalist society was insourced into the white house to make these recommendations, specifically to make the recommendation that you should be the nominee. you have said this regarding president bush, that he thought it was -- and i'm quoting here -- improper to give one group, especially a group with interests in many issues, a preferred or favored position in the nomination process. those were your words, speaking, i guess, to the federalist society at a national lawyers convention. on another occasion, you wrote a draft speech for attorney general gonzalez or white house

council gonzalez to deliver to the federalist society. and you said in that speech as a matter of constitutional principle, it is simply inappropriate, we believe, to afford any outside group a quasi official role in the president's nomination process. how do you square those two comments about the role of the american bar association in the nomination process with the role of the federalist society in your nomination process? assuming that mr. mcgahn was speaking accurately when he said that they had been insourced to the white house for this process. >> i can speak to the ada part of that. president bush in 2001 had to make a decision of how they should play its usual rating role with respect to nominees and they take files, amicus briefs, policies, positions on

issues and after some deliberation it was decided there was nothing wrong with the ada nominating but a preferred role in the constitutional nomination process was unfair in some ways. >> fair description of the federalist society's role in your selection as the nominee to say that it was preferred over other groups? >> well, my experience was when justice kennedy retired on a wednesday, mr. mcgahn called me later that afternoon, said we need to talk on friday. he came over to my office on friday evening or late afternoon. we talked for three or four hours. interview in going through the usual kind of questions you would go through when you're embarking on a process like this. i met with -- interviewed with the president on monday morning. >> so is it your testimony that

you don't know what the role of the federalist society was in your selection? >> my experience, my personal experience and what i know is that mr. -- president trump made the decision, for starters. president trump made the nomination. and i know, as i explained yesterday, he spent a lot of time on those 12 days on this issue and i was aware of that. i also know that mr. mcgahn was directly involved with me, spent a lot of time on it. and i also know that the roois president -- >> you have no knowledge to share with us today about the role of the federalist society and how they were insourced into the white house? that is a mystery to you as well as to us? >> i'm not sure what mr. mcgahn meant by that comment. i think the federalist society members are -- lawyers in the administration are federalist society members. and so it should not be a

surprise that -- because it's an organization. >> leonard leo's role specifically from the federalist society? >> i don't know. >> okay. >> i don't know the specifics. >> let's go from specifics to generals and let me put up a graphic that shows some of the folks who fund the federalist society. it's a pretty significant group of people who tend to share conservative and pro corporate points of view. it reflects at least 14 of the donors are actually anonymous, which is a very unfortunate part of our current political world. actually probably proobl more than that. a recipient of funds can report that they got the money from

donor's trust rather than the true party in interest. so we don't know how much anonymous money flowed through them. but i would contend that this is a pretty strong group of right wing conservative procorporate funders. and presuming that to be true, should that give you or anyone in this process pause that groups like this may have had such a significant role in selecting you to be in this seat today? >> senator, mr. mcgahn was the one who contacted me. i interviewed with the president. i know the president was -- i'm the president's nominee. he was directly involved in making that decision. i know he consulted widely, very

widely, to get input on the people who were finalists so that part of it in my experience was with white house counsel's office and the president and vice president, too. i also don't -- i'm not familiar with -- >> whatever the rule is of the federalist society was in all of this, it was and there's plenty of reporting. we don't need to litigate that between us. you don't know is what you've testified, and that's fine. >> my process and, yes. >> you're familiar with the process generally because you used to run it in the bush white house or had a significant role in it, process of judicial nomination selection, judicial nominee selection. correct? >> i did not run it. judge gonzalez, when i was in the counsel's office, was the counsel. >> you have been inside the process. >> i have been inside the process, yes. >> so the next thing that

happens going forward is that we see the judicial crisis network showing up and they spend millions and millions and millions and millions of dollars to run ads urging senators to support you. now i don't know whether we can show that those were the same funders, because they are engaged in what is called, as you know, dark money funding. they don't report their donors. but i would be prepared to make a pretty substantial bet that there's enormous overlap between the judicial crisis network campaign for your confirmation and the federalist society donor group to the extent that we're aware of since so many of them are anonymous. hypothetically, should the american people have concern

about the role of very, very big spenders and influencers doing things like being involved in the selection of a supreme court nominee and running dark money campaigns to support the confirmation of a nominee? is there any cause for concern there as a general proposition? >> senator, there are a lot of pr premises in your question. >> i'm not asking you to accept them as true. i'm asking you to accept it as a hypothetical. if there were very, very significant, big special interest funding behind the organization that was responsible for select iing you and recommending to the president that he nominate you and, again, from a very similar group in supporting the dark money campaigns that are running on your behalf for your confirmation, would that be a matter of concern or is that all just fine and we shouldn't even care about getting the answers? >> two things, senator.

one is, i described the process i went through with mr. mcgahn, the president and vice president and the selection. that's what i know about my process. two, on the ads, there are a lot of ads against me as well and i've seen those. our family has seen those. and then there are ads for me and we've seen those, too. as chief justice robert said in his hearing, it's a free country and there are ads for and against and, obviously, we -- >> should we, as citizens, know who they are, who is funding the ads as a matter of citizenship? >> i think that's first and foremost a policy question for the congress to decide, on what disclosure requirements it wants to put in. and then if those disclosure requirements were put in or state government koss try to make disclosure requirements. i think some have tried. and then undoubtedly there would be challenges of that and what's the first amendment implications of that? and that would come to a court.

i would keep an open mind on that case under the precedent and first amendment and law and we would think about that. the policy question, i think, is really for congress in the first place, to determine, assess, study exactly what kind of disclosure requirement should be put in place. >> yeah. >> i understand the potential hazard there is the unleashed power of unlimited political, dark money then becomes like a ratch ratchet. i hope you can understand that as a matter of political principle. >> i do understand the concerns about money in the political system. when i worked for -- and the time it takes all of you. and when i worked for president bush in the '04, '03-'04 timeframe, for example, how many fund-raisers he had to do, and

time and burdens on the presidency. running for president while being president -- >> it's gotten easier so that now you can get a huge special interest to set up a 501 c 4 and drop tens of millions like that and the public doesn't know who is behind it. only a very few people are in on with what the deal is. it's gotten easier since president bush but not better. >> i think for some members, particularly in the house, if you are running for re-election, third party group comes in against you and you don't have -- you have to go out and spend even more time, at least as i understand, that's part of the concern i've heard over the years is generally the time that each of you has to spend and the members of the house have to spend. >> let me continue on forward through this problem of funders. on the court, the dc circuit and potentially the supreme court, you will often see cases brought

by groups, for instance, like the pacific legal foundation. are you familiar with that group? >> i've seen briefs by them. >> do you know what they do? >> i'll take your description. >> my description is that they get money from right wing conservative and corporate interests and they look for c e cases around the country that they believe they can use to bring arguments before the court. i argued against them in the supreme court at one point. they came all the way across the country to the shores of winnipog pond, rhode island, to hire a client whose case they could take to the supreme court with a purpose to make a point. and they're not alone in doing this. there are a number of similar groups who perform this service.

and it causes me to think that sometimes the true party and interest is actually not the named party before the court but rather the legal group that has hired the client and brought them to the court more or less as a prop in order to make arguments trying to direct the court in a particular direction. is that an unreasonable concern for us to have about the process? >> senator, i think public interest litigation groups span the ideological spectrum that look for cases to weigh in on. amicus briefs and, also, of course, historically there have been -- you look for, as i understand it, people try to identify suitable plaintiffs to challenge -- again, this is

across the entire ideological spectrum. >> what are the signals that that's gotten out of hand, that there's something rotten in denmark? >> it's an interesting question, senator, and an important one but not one i have a great answer to. >> let me propose one thought to you. the supreme court, at least, should fix its rules on how the amici are who turn up and require some disclosure of who is behind them. the only thing the supreme court requires is to disclose who paid for the briefs. the brief itself is not a very big expense. and so very powerful interests can come in behind an amicus group that has a lovely name like citizens for peace and prosperity and puppies. >> yes. >> and nobody knows who is really an interest. so, that would be one thing that i would think would be a concern. >> can i -- >> another thing that would be a concern, i think, is when you see these special interest groups rushing out, trying to lose cases in order to get before a friendly court, it

really seems improbable to somebody who has actually tried cases and been around courtrooms a lot and has seen a lot of litigation, great litigators. i've never seen anybody once try to lose a legitimate case. so in the wake of justice alito's signaling about what then became fred rick's and janice, to see these groups rush out and ask the court to rule against them so they can get hot foot up to the supreme court where they expect a good outcome, to me, that -- there's just something that doesn't seem right about that. that seems to me a little bit like faux litigation, that there's something else going on other than real parties having real arguments and the supreme court ultimately settling properly prepared real disputes. do you have any concern about the optics of people rushing to

lose cases below to come before what they think is a friendly supreme court? does that seem just a little bit odd? >> i will -- [ shouting ] >> i will acknowledge, senator, i'm not entirely familiar with that fen om na nophenomenon. >> i might follow up with you to get your deliberate thoughts about it. >> on your amicus thought i'm interested in your proposal and certainly if confirmed i would -- >> here is the concern. you know perfectly well that the court depends on, as much as anything, on its reputation. you don't have a purse. you don't have an army. you stand on your reputation in the judiciary. you must not only act justly but

be seen to act justly. what i've laid out is a scenario in which very big special interests have a significant role in funding the group that i believe and much reporting says is responsible for getting you to the top of the greasy pole of nominee selection and that the same funders are behind the judicial crisis network operation that is politically pushing for you. [ shouting ] >> senator whitehouse, we'll add one minute to your time. >> thank you. >> that some portion of the supreme court's docket is made up of strategic cases rather than real litigation. >> i'm wolf blitzer, alongside jake tapper. you've been watching cnn's special coverage of the

confirmation hearings for the president's supreme court nominee, brett kavanaugh. we'll take you back to the testimony shortly but first, president trump just weighed in on the kavanaugh nomination, the confirmation hearings, also on the explosive new book by bob woodward, as he hosts the amir of kuwait. let's listen to the q & a. >> i am. i'm happy with the kavanaugh hearings. i watched today for a little while. i saw some incredible answers to very complex questions. he is an outstanding intellect. he's an outstanding judge. he was born for the position. i heard as long as ten years ago people were saying he should be a supreme court judge. i didn't know him at the time. but i was hearing from a lot of people, friends of mine from washington and other places saying that brett kavanaugh should be a supreme court judge some day. and i'm honored that i gave him the chance. i've watched his remarks. i've watched his performance. i've watched his statements and,

honestly, they've been totally brilliant. i think that the other side is grasping at straws. and, really, the other side should embrace him because you're never going to find better in terms of talent or intellect than what you have in brett kavanaugh. [ indistinct questions ] >> the book is a book of fiction. general mattis has come out very strongly. i think you know general mattis. he does what he wants to do, a very independent guy. he was insulted with the remarks and came out with a very strong statement. i assume you read it. i hope you read it last night. general john kelly, the same exact thing. he was insulted by what they said. he's right here. he's insulted by -- he couldn't believe what they said. and he put out a very, very strong statement. and many others. and other statements are coming out. the book say work of fiction.

if you look back at woodward's past he had the same problem with other presidents. he likes to get publicity, sell some books. we have done more as an administration than any other administration in already less than two years. it's incredible. we will soon be approaching two years. but there's no administration probably, and even you folks have generally acknowledged this and has done more work, when you look at tax cuts, regulation cuts, supreme court justices, the court system generally and so much more, even if you look at the health care programs that we're passing. and all of the things that were done, we're saving social security. the democrats will destroy social security. we're saving medicare. the democrats, you look at what they're doing. they want to destroy medicare. we will save it. we're keeping it going. we're making social security stronger and making our whole country stronger. just look at the achievements.

i was very honored when, without my even knowing about it, statements were put out by general kelly, general mattis, highly respected people by everybody, including yourselves. and the book is a work of fiction. really, if you look at it, it was put out to interfere, in my opinion at this time, with the kavanaugh hearings, which i don't think it has done because so many people have come out against it. so many people who have been written about said i never said that. rudy giuliani is another one. he is very insulted by the book and what was stated in the book. we do run a strong white house. there's no question about it. and we are doing things that nobody else has ever been able to do. and our country is stronger now than it's ever been. and in a very short period of time, $700 million being spent on the military, the next year 716, $716 billion. we will actually be far stronger than we've ever been.

and that's what we need to be. thank you all very much. [ indistinct questions ] >> we have a great relationship. i have a personal great relationship with the amir. >> president trump is talking about the confirmation hearings for his supreme court brett kavanaugh and also taking yet another shot at the new bob woodward book, which has yet to even come out, which is called "fear" and quotes a number of individuals in the trump administration, saying disparaging things about president trump. cnn sr. white house correspondent jeff zeleny joins us. this is how president trump deals with these books that are critical. he tweets about them. he talks about them. he makes them number one best sellers while he attacks them. >> no question, jake. and the president there for the first time, we're hearing him calling it a work of fiction and trying to erase questions about the objectivity of this author. woeshd point out the same

author, bob woodward, of course, well known to us in washington and indeed all over the country and the world. president trump has praised bob woodward on many occasions. most recently in 2013 when he was writing a book that upset the obama administration. the president there going specifically after this, saying it's a work of fiction, but not repeating many of the things he said on line when he was talking about libel laws and other things. interestingly, i'm told behind the scenes here the president is operating some -- something of his own witch hunt. he's trying to find out who talked to woodward, who did not talk to woodward and paying very careful attention to these denials. we heard him there talking about the very strong denial, he said, from john kelly. that is something we've seen that the president is fine with. you can blow off some steam as long as you properly and publicly apologize. but i'm told the president is also keeping a close eye on who is not apologizing or who is not issuing a statement of denial on this. behind the scenes, as the

president is doing his business today, a big part of that, i'm told by one official, quote, he wants to know who talked to woodward. despite his rather calm demeanor there, jake, i'm told behind the scenes he's anything but that. jake? >> jeff zeleny, thank you so much. john king, there is a way of looking at the denials in which you can see what is actually being denied. one example, for example, john dowd, the president's former personal attorney denies that he ever said that president trump was an f'ing liar. in the book it says john dowd was thinking you're an f'ing liar and the same goes with john kelly. there's a litany of things that john kelly has said. he has denied calling president trump, i think, an idiot, but has not said anything else about the other things he is quoted as saying. >> a specific quote or anecdote attributed to him in the book

but you don't have a flat denial, a, i didn't talk to woodward or, b, i said nothing critical of the president. if they were so adamant about this, why wouldn't general kelly give some interviews, pop into the briefing room, as he has before at key moments? you see there, that is textbook trump there in his anger. and he starts his sentence and then remembers i didn't mention this person at all. rudy giuliani is also upset. to listen to the president there as he goes through this, it's part of the -- we're saving medicare and social security. there's a great economy that this president has every right to brag about. his supreme court nominee, one confirmed, one up on capitol hill that he has every right and every reason to brag about. but he is the republican president, who was the republican nominee for president who has stymied paul ryan's biggest goal in life, to reform the entitlement programs he believes are busting the budget. when you hear things like that from the president it's just -- that's not of this planet.

>> and abby philip, one other thing that's interesting with the book, you heard president trump just say he thinks the reason that this book is out is to discredit or undermine the kavanaugh hearings. first of all, the book is not out yet. it's not out until next tuesday. cnn and the washington post got early copies through sleuthing and the like. this book was scheduled to come out long before we even knew anthony kennedy was retiring, much less that we knew brett kavanaugh hearings would be held this week. that's just nonsense. >> it makes no sense at all. it is emblematic of something else, that this white house is acting as if they just learned yesterday that this book was coming out. we all knew that it was happening and it was going to happen on september 11th, a week from yesterday. the white house yesterday waited hours and hours and hours before responding in any way, shape or form, to the allegations in the

book. they didn't yesterday even have a copy of the book and then once they did finally get a handle on accusations, they put out blaventh statements that read almost like hostage statements from these people that have lengthy anecdotes retold. they are trying to deal with it the best they can. president trump cannot deal with the underlying issue, that there are plenty of people in his white house who are cooperating with these authors, saying negative things about him but he is not necessarily getting rid of them. >> jeffrey toobin, you're a legal specialist. in his tweet this morning, the president said what he didn't just say now in his q & a with reporters in the oval office. i'll read it to you. it involves the issue of libel.

don't know why washington politicians don't change libel laws. >> let's have a first year law class. libel is a tort. libel is state law. there are 50 different libel laws and they're all very similar in the country but congress does not address libel law. that's not within congress' power. supreme court establishes a certain baseline about what the first amendment allows in libel cases. >> president obama was not born in the united states, would that be libel? >> very interesting question because it damages your reputation. now there is nothing damaging. lots of people are not born in the united states. >> how about saying somebody's father was involved in the kennedy assassination, would that be libelous? >> to the father, yes. >> how about --

>> that would definitely be libel. you would have done so well in law school. just to go back to wolf's question, this is not something that congress deals with at all. it's just a way of being angry about this book. >> you can also see how trump is fuming about this. we heard a little bit on the taped conversation with woodward when you heard the president say i didn't know about the book, he didn't know who requested an interview. oh, yeah, maybe graham did talk to me about it. and there's a sense in donald trump that if only he could have talked to bob woodward, he would have straightened all of this out, telling his attorneys, i might add, not to take a turn to

that -- but telling his attorneys i can testify to bob mueller because i can also tell him there's no collusion because i can deal with this. his anger is not only at people who work for him -- and there are people whom we have not heard from, for example, former white house staff secretary, rob porter. we've not heard from him. >> former chief of staff reince priebus. former secretary of state rex tillerson. the four people who have issued statements thus far are people who are either part of the present administration and want to say there, chief of staff john kelly, defense secretary james mattis or his personal attorney -- former personal attorney john dowd, who even though he may not be his attorney anymore, he has that, i would guess, jeffrey, lawyer/client confidentiality problem. >> he does.

it's not good to be seen as trashing your client. that's not good for business. >> jen psaki, bob woodward wrote three books about obama. just to let the public into how difficult it is and how annoying it is for a president to deal with one of woodward's books, what was it like for obama when some of these books came out and people are describing scenes, criticizing the president behind his back? that must be -- whether or not you have sympathy for president trump or not, inherently, that is frustrating. >> it certainly is. every white house battles with the question of what is the book's strategy going to be? are you going to talk or not? are you going to try to control who talks or not? it's very difficult to control even in a white house that is not looney toons like this one. who talks and who doesn't? we had that challenge as well.

the biggest story coming out of that is that maybe obama was more involved on the grand budget than previously errored. and we blamed republicans too much for that. but what we really figured out through the course of time, and i think white houses traditional battle with is you have to play to some degree. if you don't play at all then you are more surprised and woodward would walk the president, president obama and i'm sure previous presidents, what the book was going to look like, to a degree. you could argue things, litigate things. he's going to do what he's going to do. but at least you know what's coming. clearly they didn't have a strategy here. they're not the first white house but it's more damaging for the them. >> this is the president still in the oval office. this is what he said on other issues. [ indistinct speaking ]

>> the book is fiction. somewhere i heard where the assassin was never even discussed. the book is total fiction just like he wrote in the past about other presidents. what he said about president bush, what he said about president obama, big scandalous things. it lasts for about a day. no. that was never contemplated nor would it be contemplated and should not have been written about in the book. it's just more fiction. the book is total fiction. >> he was talking about the quote in the book that at one point the president was contemplating assassinating bashir al assad and his national security team thought that was a bad idea. >> sounded like he was expressing frustration.

telling mattis -- >> kill him. >> and he put down the phone and said we're not going to do that. >> let's get the senator into this conversation. >> oh, thank you. i'm glad the president didn't talk to bob woodward. if there's a strategy of keeping him away from talking to bob woodward, the staff did a good job of not giving him access. just like it would not be a good thing for him to talk to bob mueller. >> why? >> rick santorum, he has nothing to hide. why not explain that? >> it's not about having done anything wrong or improper but being caught saying one thing and having facts that show that what he said isn't comporting with the fact. >> isn't english for that a lie? >> the president has, as you knowa propensity for hyperbole and exaggeration and not necessarily squaring things with the facts.

and if you have someone like that, you shouldn't put them in front of someone that can actually charge you for perjury. >> words matter. isn't it worth pondering that his lawyers think the president is such a compulsive liar that he can't go out and talk to people? >> i think it shows that the president has strengths and he has weaknesses. like every president this is a huge weakness in the eyes of a lot of people, me included. having said that, i think everyone in the administration understands the strengths of the president and the weaknesses and they're doing their best to manage that situation. i don't have a problem with the woodward book. it probably accurately reflects the general tone of what's going on in the white house but i think it also reflects that the president has around him -- you

can say deliberately or not -- but he has around him a group of people looking out for his interest and the american people's interest. >> if that's the case by our count you wouldn't have had a dozen current and former white house staffers all talking to bob woodward, giving their side of the story, defending themselves but not their own boss. that is the ultimate problem. there were people -- >> that is not true when what they're saying is that they think he is a danger to national security. that is the theme throughout the book. and it rises to a very different level. to jeffrey's point that words matter, i would like to read a tweet from donald trump from march 1st, 2013. only the obama white house can get away with attacking bob

woodwar woodward. >> solid national security team, someone who he respects and listens to. >> but they have to protect the country from. >> and the whole theme here -- >> i would argue that was the case. >> the theme here that is ironic is that his staff, his advisers kept him from talking to woodward, in all likelihood. the theme in the book is that the national security team is keeping big decisions from him and not listening to his advice. >> i disagree. >> consistent with the report -- let me finish. consistent by the reporting by cnn, "new york times," wall street journal and washington post from the beginning of the administration about his lack of nonl about these issues, about his irresponsibility and how he approaches global affairs. that's the problem atic piece nt every individual quote. >> donald trump has a huge impact on our national security. north korea, what he has done in

the middle east. you can say they are managing him and everything. that's true. but he is still the driving force behind it. he is setting a new direction. they are trying to backfill it and create buffers. >> and protect. >> maybe protect. the direction trump has taken on many foreign polishes is actually new. it's actual ly -- >> what woodward is saying, and he said this specifically, they were doing nothing less than having an administrative coup d'etat. he defends the staff people to a degree, saying they're trying to protect the country from the president himself. >> that's an exaggeration. >> if they're stealing papers off his desk or saying i'm not going to deliver this to the president. >> i don't want to begin every sentence with i've read the book and you haven't yet.

i would wait until next tuesday. the theme throughout this book in great detail goes against the notion that the president has been leading foreign policy in a safe or positive way. quite the opposite is true, over and over again. it's not just talking about the beginning of the administration. there is frustration up until very recently that they cannot through to him. there is no learning curve, for example, as far as woodward's reporting on south korea. >> let's go back to the senate confirmation hearings of brett kavanaugh and listen in to the questions and answers there. >> i think about it from a fo formal matter.

congress is the binding law, what is signed by the president. it's what's gone through the senate and the house and that is the law. also as a practical or functional matter, having seen legislative clauses i know how compromises come together within the house and senate, within the senate, the house. there's negotiations late at night over precise words and compromises, inevitably. the constitution is compromised. legislation say compromise. and when we depart from the words that are specified in the text of the statute, we're potentially upsetting the compromise that you all carefully negotiated in the legislative negotiations you might have had with each other. that's a danger i would like to point out, having oral argument or deciding cases that if we deviate from what congress wrote, we are potentially upsetting this careful compromise even if we think we would have struck the compromise in a different place as judges.

that's not really our role. i think both as a formal and functional matter it's important to stick to the text. there are canons of interpretation which cause you presumption and super impose presumption on a text. >> but you colonel senior yourself aa texturalist. if you follow justice kagan's statement, we're all texturalists now. >> paying attention to the text of the statue utilize such as mens rhea, things like that that are settled. some of the canons are not so settled, a whole separate hour of discussions. >> how does texturalism differ or relate to originalism?

>> originalism, as i see it, to my mind, means in essence constitutional texturalism meaning the original public meaning of the constitutional text. it's very careful when you talk about originalism that people are hearing different things sometimes. justice kagan again at her confirmation hearing said we're all originalists now. by that she meant the precise text of the constitution matters and by that, the original public meaning, first informed by history. it's a conception that people used to have of originalism, which is original intent, in order, what did the people, some people -- >> subjectively. >> subjectively intend the text to mean. that has fallen out of the analysis. for example, let's take the 14th

amendment equal protection clause. it says equal protection, equal means equal. the supreme court said in shr w shrowder, the black and the white. brown v. board focuses on text. there were racist members of congress involved who didn't think it should apply in that way, to certain aspects of public life. if you pay attention to the text you don't take account of subjective intentions nor as a general proposition to take account of the subjective intentions. they can be evidence in certain cases of the original words. >> they can be evidence of that? >> evidence that have but you don't follow the subjective intention. original public meeting of originalism and what refer to as

constitutionalism or constitutionalist, those are all referring to the same things, which are the words of the constitution matter. of course, as i said repeatedly, you look at the history, the tradition. federalist 39 -- 37 tells us to look at the liquidation of the meeting by historical practice over time and precedent wirks is woven into article iii. as i said in federalist 78. start with the words, as justice kagan said, we're all originalists now. pay attention to the words of the constitution. >> if i can stipulate for our purposes today as we're having this conversation that originalism refers to basically texturalism applied in the constitutional sphere with an eye toward identifying the original public meaning of the constitutional text edition, your an originalist? >> that's correct. and as justice kagan said, i

think that's what she meant, we're all originalists now. and i think she said what she meant and meant what she said when she said that. >> what, by the way, would be the argument against that? to me that sounds like judging. what would one argue to be against an originalist? >> well, different philosophies of what a judge does. what the role of a judge is. i think article vi of the constitution says this constitution shall be the supreme law of the land. the word law is very important there. it's not a set of aspirational principles. it's law that can be applied in court and therefore can be applied in the courts of the united states. and it says the supreme law. what does it mean by that? it means when you pass a statute

that is inconsistent with the constitution, the supreme law controls. mainly the constitution controls over a contrary statute. that's, of course, also discussed in federalist 78 as well of what's the supreme law of the land and the constitution is the supreme law. again, precedent, historical practice. subsequent to the passing of the text. we see that in establishment clause cases. the court will look, what's the historical practice and precedent is rooted in arl iii. those things all go into it. the words original public meaning are an important part of constitutional interpretation, has been, i think, throughout. >> let's suppose congress, making us slightlily less popular than castro raul and

slightly more popular than the influenza virus. let's say we're all busy, parades to attend, political rallies to organize that we get tired we get tired of the busy work of making laws and don't want to make ourselves accountable for the laws we pass. it's much easier to pass a broader statement. we say, we hereby pass a law that says we in the united states of america shall have good law and hereby delegate to the herewithcreated united states commission on the creation of good laws, the power to patrromulgate and interpret d laws in the united states. what constitutional issues do you see there? >> senator, the congress is, of course, assigned the legislative power in article 1 of the constitution. so if it delegates wholesale the constitutional power to another

body, then that naturally poses a question of whether the body exercising that power ultimately has improperly exercised legislative power and whether that rule or what have you that is enacted by that body is lawful because it was not enacted by congress. so the framers intended that congress would enact the laws and that the executive would enforce the laws and that the judiciary would of course resolve cases and controversies arising under those laws. >> yet in some respects, it's not that far removed from some of what we do today. we may not pass something as extreme as what i've described in my hypothetical, but in some cases we will say we shall essentially have good law in area x and hereby give commission y the power to make and enforce good laws in that area. so is there some point at which we cross a threshold of unconstitutional delegation?

>> well, the supreme court, as you know, senator, has a nine delegation principle. at least under current precedent, it is allowed the delegation -- and i don't want to get too specific here, but it is allowed some delegation. some justices or judges would say actually when the executive enacts rules pursuant to those delegations, that's the exercise of executive power, but i think there's been some pushback on that. in any event, the supreme court has a doctrine on the nondelegation principle. the line is debated on where that should be drawn, but there is precedent that does suggest that at some point congress can go too far in how much power it delegates to an executive or independent agency. >> and when we do that at some point, we're shirking our own responsibility because we're making lawmakers rather than laws, and we're also

consolidating in one body the power to make and enforce laws, which is not only something that can lead to tyranny, it's the very definition of tyranny itself. i want to get to the campaign finance discussion that you were having a few minutes ago with senator whitehouse. with regard to citizens united, didn't the supreme court phold the disclosure requirements at issue in citizens united? >> it did. i believe that was an 8-1 margin. >> and, in fact, you've written on this, that there is a distinction for constitutional purposes between laws mandating disclosure and laws banning the doing or saying of something. isn't that right? >> that is what the supreme court has said in certain context. that is the law set forth by the supreme court. citizens united is a good example of that, senator. >> and in a case called emily's

list versus fec, you wrote the requirements trigger rights that receive, quote, less first amendment protection, close quote. other types of speech prohibitions. >> and i think that followed from supreme court law and is consistent, i believe, with subsequent supreme court law. of course, the subsequent supreme court law controls. >> do you have a favorite among the federalist papers? i'm not asking you to choose here between eliza and -- >> yeah, no, that's right. i like a lot of federalist papers. federalist 78, of course, the independent judiciary, the role of the judiciary. federali

federalist 69, which says the presidency is not a monarchy. very important when hamilton explains all the ways in which the presidency is not a monarchy on our constitutional system. i think that's very important. federalist 10, which talks about factions in america and explains that having the separation of powers and the federalism system dividing power in so many different ways would help prevent a faction from gaining control of the entire -- all the power for the people of the united states. that makes it frustrating at times because it's hard to pass new legislation, but that also -- that division of power helps protect individual liberty. i think that comes a bit from federalist 10. federalist 37 and 39 talk about, on the one hand how we're just talking laws that are the constitution over time can be the term liquidated by historical practice. what does that mean? that means that as the branches

fill out the meaning of the constitution over time with practices, those can be relevant in how the court subsequently interprets certain provisions. we talk also about the national and federal governments. so the combination that we have, this odd of having a national government plus state governments and within the national government the house is proportional representation, the senate is state representation. that interesting compromise, which madison, by the way, was opposed to. that compromise at the convention. federalist 47, which senator klobuchar mentioned yesterday, the accumulation of all power in one body is the very definition of tyranny. i start my separation of powers class every year with that exact quote that you read yesterday, senator klobuchar. that's a very important -- 51, if men were angels, we don't --

we wouldn't need government. sorry. i've got eight kids. >> no, it's brilliant. i think that's a greatest hits list. if these were on spotify, i'd say you put together a list of those. let's close in the minute and a half i've got left. i gave myself an additional 30 seconds because of the two interruptions there. tell me how you were informed by federalist 51 and how that relates to your role as a jurist. your role as a jurist now on the d.c. circuit, the role you would play if you were confirmed to the united states supreme court. this understanding that government is an exercise in understanding human nature. if we were angels, we wouldn't need government, and if we had access to angels to govern over us, we wouldn't need all these rules. these cumbersome rules that make government so inefficient and frustrating. why is that important, and how does that affect you as a judge when trying to interpret the

constitution and trying to interpret acts taken pursuant thereto? >> that's an interesting question. i think we recognize we're all imperfect, first of all. all of us, as humans, are imperfect. that includes judges, and that includes legislators and all of us are imperfect. we recognize that in how we go about setting up our governments. if there were some perfect group of people, we'd put all the power in that one body. but because we're imperfect, putting all the power in that one body would be, as senator klobuchar was saying, the definition of tyranny. the way we deal with the imperfection while also having a government, because we're imperfect, is dividing the power, separating the power. again, to my mind, that all reinforces why the framers, the genius, despite the flaws in the constitution, and there were flaws, the genius of separating the legislative, executive, and

judicial powers, tilting toward liberty in all those respects, and having a federalism system where we still have state governments that can further protect liberty and be laboratories of democracy as well. i think all that is because we're imperfect and because we recognize the imperfections. it's also why we have things like a jury system. even within the judiciary, we didn't trust a judge to do trials on his or her own. we have a jury system to recognize, and we have usually 12. that is designed to recognize we're imperfect. sometimes that's why we have group decision making. that's why we have 535 legislators. that's why we have nine justices. we don't usually have one person. so, too, in jury. i think that all maybe stems from the same philosophical understanding that we're

imperfect beings and that we divide power and that we make sure that no one person in a jury situation or other situations where our liberty can be affected is exercising total control. >> great. thank you very much, judge. my time is expired. i am not the chairman of this committee even though i'm playing him on tv. i understand that under the previous ordered entered before he left, we're supposed to take a ten-minute break. we'll stand in recess for ten minutes. >> all right. i'm wolf blitzer alongside jake tapper. we're live here in washington. this is cnn's special coverage of the confirmation hearing for the u.s. supreme court nominee brett kavanaugh. >> judge kavanaugh has been grilled by some senators on issues ranging from abortion rights to gun control to the limits of presidential power. he's been complimented by other senators. kavanaugh refused to say whether a sitting president can be forced to respond to a subpoena, but he says not even the executive branch of