as the room clears, this wraps up the confirmation hearing or brett kavanaugh to become the next supreme court justice. four days of testimony in this hearing, judge kavanaugh would replace justice anthony kennedy. the committee was able to question judge kavanaugh for more than 20 hours over two days and today never heard from outside witnesses and legal experts. in off and you missed any of today's session, we will be showing it again tonight in its entirety at 8 pm eastern right here on c-span2. also watch all four days of testimony from the hearing, just type in the search box at c-span.org. we will take a look back at these testimonyfrom yesterday .

. >>. >> tell me when you're ready, judge . >> senator flake. >> thank you. judge kavanaugh, if it's fourth-quarter and you are down by one point, which played you call and which of the young ladies in the front row do you pass the ball to?

>> i can't choose, they are all great players as you know senator. it's great to have them all orhere . >> do you want to let us know who they all are? >> these are a variety of teams that i coached. istarted coaching many years rs ago and some of these girls are as old as 10th grade now . i started coaching the fifth, sixth team then. i guess four years ago so the oldest girls, caroline and abigail are 10th grade. madison is a ninth grader. bill is over here. these are my 2 of course and keegan and coco and anna and sean. quinn. sophie, are all here . we've got morgan is in seventh, coco is in fifth, anna is in seventh, shawnee is in seventh, quinn is in sixth and sophie is in seventh so i think i got it

all right. n[applause] >> thank you. >> they are all awesome players, they really are. they are tough as nails. right caroline? caroline monahan, no one tougher. >> there goes my whole line of questioning. thank you all for coming and welcome here. let me ask a variation on the that senator sasse asked a few minutes ago. he asked what court decisions over the years were decided wrongly and you decided over the past 12 years about 307 cases i believe on the circuit court. were there any you look back on and say i just didn't get it right or this one hasn't held up well over time?

and i know that's a difficult question. as politicians, that's a tough thing for us to answer but i'd be glad to tell you a number of cases where senator sasse got it wrong. >> i will reserve my time for rebuttal. >> i'll point out where i reconsidered something in one case , the national security case that i had. one of the questions in that case was what did the wall of war mean in section 21 and i referenced it in a prior case as being limited solely to the international law of war and after reflection, after the deputy solicitor general for president obama argued in our court, he planted a seed in me that i interpreted it too narrowly and that lyincluded not just the international law of war but the historical practice and i went back and on about that. he made a compelling case in oral argument and i dug

deeper and studied it and ultimately concluded he was right. what he had said at oral argument and they reference to that in my subsequent opinion that the deputy solicitor general, i had gone back just like a replay official, if i made the call and gone back and look at it and studied it over and over again and concluded he was right. one example where in one of my opinions that out in a previous decision that i had under interpreted the scope of one statute. >> let me go a little further there. which ones do you struggle with, which ones were the most difficult and how did you deal with those? >> senator, i think what justice kennedy used as a in stresponse to that question is something that always comes into my head. when he's asked whatthe most difficult case , he would always say the one i'm

working on right now. and i think there's something to that. every case, you want to give it your all and you're focused on the case you're working on at that moment. there are of course more responsive to your question, i think what justice kennedy said is correct but perhaps more directly responsive to your question, of course they national security cases are quite difficult and quite important, because you know the significance of them but so to every case has an effect on real people in the real world so i want to give every single case, give it my all. i don't treat any case as a second-tier case. i treat every case is the most important case and that's why justice kennedy's comment does resonate with me and does point out something which is the litigant before you in that particular case, that's the most important case they will ever have, probably the only case they

will ever have and i treated as the most important case for me at that moment in time and while i'm deciding it. >> can you talk briefly about the process you've undergone in the appellate court. it would be different at the supreme court level but when a case comes before you, you sit down with the clerks i'm sure and i saw in the research, that did they frequently work with the other clerks, compare notes, do you do that with the other judges? how does it usually work and that be different with the job you're applying for? >> there are a lot of similarities to the supreme court in terms of the process . from my time working for ms justice kennedy, my experience and seeing how it works now. in basic terms, what i do is i read the briefs very carefully. i have my clerks repair many binders of all the cases i need to read, i like to know the law review articles and treatises on point.

i like to go back and see if there are any historical materials that might be in the binders and i'll talk about it with clerks. i'll have one clerk who is handling it talk about it with all the clerks about my tentative views. the judges interestingly do not talk about the case i have time with each other and the reason for that is we each want to come into the oral argument having formed our own tentative approaches and questions and not having been influenced by maybe well, this is what the other judge thinks so that will subtly influence you but if we come to this argument from different perspectives, the practice has been that will help us meet reach a more informed decision and each of us will be prepared and the oral argument itself is so important. we learn fromthe lawyers but also each other . maloley to the way this assess works, you hear the questions of other senators and that sparks thoughts for

you to ask questions and other senators to ask questions, so too for the judges. then we conference after oral arguments and you are tentative views and go around and debate and discuss and it's very collegial and there's a lot of fluidity in that discussion. it's not as, here's my position and that's it. for 12 years i've never been in a single conference where any judge has said anything like that. rather, it's here's what i'm thinking, what are you thinking and we go around and discuss it and we each take a tentative resolution and we write it up. one judges this aside the draft of the opinion and writes that's an intense process for me and for all judges of draft after draft and i talked about that to get it exactly right. i want to be clear and consistent and i want the losing party think they've y'gotten a fair shake, i want

the affected parties to understand it, to be as clear as possible and that discipline of writing convinces you you might have gotten it wrong when you first were thinking about it. sometimes you change a 180 sometimes but you often will ship yourviews but the writing is such a discipline, that's important . the whole thing is a process. three judges or nine on the supreme court, that is designed to make sure you get it right area so the collective decision-making process combined with the discipline, preparing and the discipline of oral arguments, the discipline of writing it out, that's why judges when they come are reluctant when they get a hypothetical to just give a one off answer without going through that process. process attacks us as judges, protects the people who are affected by our decisions so we love process because we are used the process and process in our view suspect better, more informed decisions . >> let's talk a little about what i touched on yesterday

obviously the independence of the judiciary or separation of powers . are what are at issue here. and the most important questions i think you've been asked are about that. senator koons and i traveled to southern africa a few months ago and we met there with the constitutional court of south africa. at the time when just a few weeks before, a month before, they had ruled against a sitting president on the expenditure of funds issue and a few other things but rendered a decision against the president of the country, the executive, thatallowed the parliament to go in and remove him . and we talked about that. and they, and they marveled at how this country of south africa had had such a court that understood that role and how important it was to be completely independent of the

executive. one of the justices put it like well, he said we can't allow the executive to climb over the lectern. i thought that was an image that was apropos here as well . there have to be some limits to executive power. where the head of the executive branch, the president in our case cannot climb over the lectern and in many cases, we look just north to zimbabwe where for the past 37 years, robert mugabe and climbed over the lectern enough to put judges in place that would rule on whatever you wanted and the genius of our system, our separation of powers and the independent judiciary is we can never allow that to happen and there have to be constraints and you mentioned some of them yesterday with regard to what constrains the president.

but still, the presidenthas immense powers . largely because we have conceded too much from the article one branch to the article to branch, but when we talk about presidential power now, i was struck by conversations you had yesterday with senator feinstein and i wanted to explore it's a bit. you mentioned as a point of pride and i think it is a point of pride that you had ruled in the hamdan case after 9/11. this is one of the bodyguards or drivers or osama bin laden. it was an extremely unpopular decision, but one to protect his constitutional rights. and to ensure that we just didn't look and say here, here's hoping unpopular. we can't protect his rights. yet when you were asked why you feel how you do now, on

the independent counsel statute, you feel differently than you did in the 1990s and you mentioned to senator feingold that you feel differently because of9/11 . and that ostensibly, the president needs to be given for rain, i guess because he needed to focus on national security issues. and i'm trying to square that . i think that your explanation of how you ruled in the hamdan case is admirable. i am not sure about your explanation with regard to giving the president more release or more authority because of 9/11 wears with that. can you shed some light? >> that was simply a proposal in 2009 when president obama was coming into office for congress to consider, but

there would be pros and cons if congress did consider something like that. and it wasn't immunity, it was only the timing of litigation, the clinton versus jones scenario, for example. and it was an idea on my experience that congress would of course consider the pros and cons. the principle i emphasized was no one is above the law in the united states, in the united states government. there is a question and that's federalist 69 of course but it's woven into enthe text of the constitution but there's a question about timing for members of the military, for example. that's why we have different role for them but it was not a constitutional position so i want to emphasize that that was not a position of what i thought was required by the

constitution. rather,something to be studied as congress buddies things all the time to ensure the effective operation of the government . on your point about hamdan, i do think andin your point about your trip , some of the great moments in supreme court history have been those moments of dutiful independence and moments of political crisis. the youngstown steelcase, we are at war with korea and the president seizes steel mills, well-intentioned because it's well-intentioned to serve the war effort but the court says it's not consistent with law and therefore unlawful and the court rules against president truman. we talked a lot about the united states versus richard nixon case, the unanimous decision in 1974 by justice burger who had been appointed . the clinton versus jones case itself was a moment where the president of the united states was ruled cagainst by the supreme court including two of his appointees. the hamdan case in the supreme court before hamdan came back back to me for

cases by justice kennedy in 2008, ruling against president bush and a wartime case and so to my hamdan case. i look at that is the case where the rule of law protects all regardless of who you are and no one is above the law and the president is subject to many legal restraints in terms of the official capacity, the war effort and i think my decisions have shown that independence in a variety of areas. >> let me shift gears and my final couple of minutes to technology. we struggle here in congress with striking a balance obviously between security, freedom. between innovation, privacy. we just had the facebook hearing in this room along with the commerce committee and questioned mark soccer bird on these issues.

a late-night commentor that night commented that all of us questioning out here, at least five of us, our password for our email is password. we were not as humble up here in dealing with a lot of these issues but the same applies to court. how does the court, how will the court, how would you as a supreme court justice deal with these issues? would you describe yourself as technologically literate? i know you dealt with these issues on the dc circuit what balancing privacy and innovation, security and freedom, this is going to make up a big chunk of what the supreme court does over the coming months and years. >> senator, i do think that technological developments are going to be ta huge issue for the supreme court over the next generation and chief

justice roberts has been writing some of the key opinions, the carpenter case most recently which was a very important decision, the wiley case before that and you see how he's, and this would not necessarily have been predicted at the time of hishearing , how he has focused and led the court in making sure the fourth amendment keeps abreast of technological developments and his opinions are clear. >> specifically, what impact does technology have on the fourth and the first amendment? >> the partner case explains that once upon a time, if a piece of information of yours ended up in the hands of a third party and the government got a third party, that really wasn't any effect on your privacy, but now when all of our data is in the hands of a business, a third party and the government obtains all your data, all your emails, all your text, all your information, your financial transactions, your

whole life is in the hands of the data company and the government gets that, your privacy is very well affected and that's the importance i think of the carpenter decision is that it recognizes that change and understanding of our understandings of privacy and i think forward, that's going to be a critical issue. one of the cases i did write an opinion in, chief gps surveillance and putting a gps tracker on your car and i wrote an opinion where i recognize putting a gps tracker tracker on your car was an invasion of your property. [shouting] and therefore was something that violated the fourth amendment. [shouting] and was something that the supreme court then

in an opinion by justice scalia adopted that approach to recognizing the gps surveillance but going forward as i've said, these are backward looking hearings sometimes the forward looking question you ask is an important one about the change in the fourth eramendment, not doctrine but the change in technology that in turn requires us to understand it as we apply the fourth amendment doctrine going forward and free speech principles as well, our conception of speech will have to take account of the technologicaldevelopments as well . >> one last question. what does an independent judiciary mean in terms of judges and their personal we political or religious beliefs. have you known good judges who were democrats, republicans?li you see a difference? are they viewed that way? what about the catholic or mormon or muslim or an atheist? what should be our approach to judiciary in that sense? >> i think senator, all

judges are independent. we don't sit in the caucus rooms. we don't sit on ides of an island. we are not republican judges or democratic judges. we are independent united statesjudges . and so to with respect to religious beliefs as i've written, we are all equally american no matter what religion you are or if we have no religion at all and is so to as judges, we are all equally united states judges no matter what dgreligion we are and we see that in the text of the constitution that no religious test shall be imposed as a qualification for any office. >> senator blumenthal. >> thank you mister chairman. welcome to your team. >> thank you senator. >> i want to first of all type up a couple loose ends from yesterday. i asked you yesterday whether

during your service in the bush administration, you took the position that not all legal scholars believe that roe v. wade is settled law. you said in fact that in court that it could and you declined to say whether you would commit to saying that you would not vote to overturn roe v. wade. i believe thanks that exchange that an email has been made public in which you took exactly that position and you argued in that email that roe v. wade can be overturned. my question to you is whether during that break, did anyone get to you that i would be asked about the email? i think we took a break before i asked you that question. it anyone suggest to you that i might ask about the email

during the break before this question? >> just now? >> know, yesterday. >> i'm not remembering. i'm not remembering one way or another. i'm not remembering. >> it anyone show you this email during the session yesterday at any point? >> i'd have to check, i don't remember. during each break yesterday? i've had these emails, i think k. >> and you reviewed this one before you came to testify? >> i'm not going to remember, senator but i know that email refers to my impression of what legal scholars think. the premise of your question, respectfully -- >> if you don't remember what whether somebody showedit to you or not, i want to move on to another area . you were asked yesterday by senator harris as to whether you have certain

conversations about the special counsel investigation with anyone group of judges on the dc ve circuit. at that point, your answer was vague and it was again this morning when senator hatch asked you so i want to ask you very specifically, have you discussed the special counsel investigation with anyone outside of the group of judges on the dc circuit? >> i've had no inappropriate discussions with anyone. >> have you had any discussions with anyone? appropriate or inappropriate? have you ever thought about the special counsel investigation with anyone outside? >> if you're walking around in america, it's coming up so people discuss it but i've never made any -- let me finish if i could.

i've never suggested anything about my views about anything , commitments, foreshadowing. i've had no inappropriate discussions. let me tell you a few contexts which could come up. our courthouse has a lot of el activity going on because of that . those are discussions that will, >> let me be more specific so that we own in on what my concern is. have you ever talked to anybody in the white house about the special counsel investigation ? >> i've had no discussions with people in the white house. >> no one. >> i guess i want to make sure that i'm understanding what your question is going for. i have had no issues where i've discussed my views on any matters, issues, cases. no hints, previews, forecasts .

>> but have you ever thought about the special counsel investigation with don mcgann who is behind you or anyone else in the white house that's a simple yes, sir no. >> i'm not remembering any discussions like that. in preparing for this hearing i've prepared for questions like the one you are asking .>> but those are mock court sessions. >> what discussions have you had about the special counsel with people in the white house? >> i've not had discussions, if i'm understanding your question correctly i've not had such discussions but i want to qumake sure i'm understanding your question correctly. >> it's simple english, have you talked about the special counsel l with anyone in the white house? anybody who works for the president of the united states? >> you just rephrase the question about mister mueller and previously it was about the investigation if i'm understanding the question

rectally, no discussions of the kind you are asking . >> you're saying no, you haven't talked to anyone in the white house about robert mueller, the special counsel. >> you rephrase the question again, senator. of course i know mister mueller personally from my prior experience in the, i haven't seen him in a long time but i knew himwhen we work together the bush administration . but i've had no discussions of the kind that i think you are asking about . >> well, i'm asking about the kind you are thinking about. >> i haven't had any discussions of the kind i am thinking about either . >> i'm going to take that as a no which you are giving under oath and put aside the humor for the moment. >> i'm not trying to be humorous, i'm trying to be accurate.

for example, if someone says your courthouse -- >> i'm talking about discussions with anyone who works for the president of the united states in the white house about the special counsel and so far rightly, your answer has been ambiguous . >> i don't think it's been ambiguous. >> you've dodged the question, it's the same question again and again and i'm going to move on because i have other ground to cover. have you had conversations t about the special counsel investigation with anyone at the itbenson and torres firm? >> i don't remember anything like that. >> are you acquainted with anyone at that firm. >> and mcnally used towork at the white house counsel's office and i understand he works about lauper . >> have you talked to him about the special counsel investigation?

>> are you acquainted with mark caso it's? >> i am not.>> are you acquainted with anyone else at the castle a long firm . >> as i discussed, i didn't know senator lieberman worked at that fifth firm and he spoke to the judges a couple years ago before this but that's the kind of thing i was worried about when i was talking with editor harris i don't have a full roster and i am confident the answer is no . >> we've talked about the independence of the judiciary and you have spoken compellingly about the importance of an independent judiciary and i couldn't agree more. i think the heroes of this era will be the independent judiciary and our free press. i want to talk to you about president trumps attacks on the judiciary. they have been blatant, craven and repeated. and i want to quote to you a couple of those attacks.

i have a sheet, impartial quotation of them. 41 treats attacking the judiciary but the one i'm siding now is july 13 when he said of justice ruth bader ginsburg, justice ginsburg of the supreme court has embarrassed all by making very dumb politicalstatements about me . hermind is shot, resigned . end of quote. november 10, 2013. again, speaking about justice ginsburg. supreme court, justice ruth bader ginsburg was going to apologize to me for her misconduct. big mistake, incompetent judge. do you believe that justice

ginsburg has quote, embarrassed us all,"? >> i have course, spoken about all the justices individually during this hearing toand -- y >> if i may interrupt and i say this with all respect, this is aquestion where less is more in the answer . do you think justice ginsburg has embarrassed us all? >> i'm not going to get drawn into a political controversy. i'm not going to get within reason codes of a political controversy here. >> this is not political, this is about justice ginsburg. you believe her mind is shot? >> respectfully, you're asking me after having read those comments to comment on something another person said and i'm not going to do that. i've spoken about -- >> do you believe she's an incompetent judge?

>> i've spoken about my appreciation for the judges . the honor it would be if i were to be confirmed to be part of that team of nine with those people, all of whom i know and respect and i know they are all dedicated public service given a great deal to this country so i've made that clear about this during. >> you believe a judge should be attacked based on his heritage? the president of the united states attacked gonzalo curiel saying that the judge who happens to be we believe mexican, in attacking him, do you believe judges should be attacked based on their heritage? >> senator, again -- >> these are issues that concern the independence of

the judiciary. with all due respect, you talk about your heroes who have the grit and backbone to stand up and speak out. we're talking here about an independent judiciary and my colleagues have raised this point and i might just say to you as i said to judge judge gorsuch, that the judiciary and the nominees like yourself have an obligation to stand up for the judiciary and he said that these tax are quote, disheartening and demoralizing. you agree?>> i'm not sure of the circumstances but the way we stand up by deciding cases and controversies independently without fear or favor. beyond that, we follow the canons in the leadership of cheese justice roberts who is a superb leader of the american judiciary in terms of maintaining the

independence of the judiciary and staying well clear of -- >> let me ask you something else about the intersection of presidenttrump and yourself . on the night of the announcement of your nomination, you were at the white house. and you chose to begin your speech introducing yourself to the american people by saying and i quote, no president has ever consulted more widely or talk with more people to seek input about a supreme court nomination. what was the factual basis for that? >> i did think about that, those were my words, senator harris asked me about that and the president and mrs. from when we were there, my family was there that night at the white house. he and mrs. trump were very gracious. i was impressed during the 12 day period between justice

kennedy's announcement of his retirement and the announcement of my nomination. i was impressed as a citizen, as a judge with the fairness of the process and i did look into to your point directly and thought about and looked into comparing what i knew about past processes and made that comment and. >> you look into past appointments? did you talk to president clinton about how many people he talked to oor? >> last night i said to senator harris that president clinton, i do recall and talked to a lot of people as well and i indicated. >> he talked to just about everybody in washington. >> president trump talked to a lot of people as well so i said to senator harris, i mentioned president clinton as an indication of someone who likewise consulted widely de as i recall. >> but you didn't have any

factual basis, any record,any research at the time of that statement . >> i did actually look into itas best i could, thinking about the technological developments . and i did think about it very carefully. he talked to an enormous number of peoplebased on my eunderstanding in those 12 days . >> i want to talk to you now about real world consequences . that is, impacts in the real world on real people. of the decisions that courts make. we were talking yesterday about the statement that you made in sky versus older and i think we have it here. under the constitution, essentially, that statement says to me a president can deem a statute to be unconstitutional, even if a court has held or would hold a statute constitutional.

now, you stated yesterday to me when we talked at some length that your view was compelled by heckler versus cheney another cases on prosecutorial discretion. i disagree. nothing in heckler suggests that the president can nullify, deem a lot unilaterally unconstitutional based on his personal view of the laws constitutionality. so heckler stands for the principle that court will generally not second-guessthe executive branches decisions . >> ..

>> the real world impact, clearly heckler doesn't say that there are no limits, but for the sake of real world impacts, i think there must be impacts, and one of them affects the affordable care act and the protections it provides to millions of americans, about 13 million americans, including 500,000 in connecticut, who suffer from diabetes or high blood pressure or mental health issues, there are 15 to 20 or more preexisting conditions, and one of them affects a young man. his name is connor curren. he's 8 years old and suffers from muscular dystrophy. i want you to think about

connor. this is a chronic and terminal condition. it will slowly erode his motor functions unless we find a cure, eventually it will take his life. his parents have told me and i have gotten to know his family pretty well, although he appears healthy and happy today, he will slowly lose his ability to run, to walk, even to hug them good night. as connor gets older, he will need more and more help. he will need the affordable care act more and more. he will need protection from abuses that involve preexisting conditions. my reading of your view of the constitutional authority of donald trump is that he could

simply deem the affordable care act unconstitutional, even if it is upheld by the dc circuit court of appeals and then by the united states supreme court and even though it has been signed by a president who deems it to be constitutional and passed by a congress, who deem it to be constitutional, do you think the president of the united states has that unilateral authority to nullify protection for connor and should the connor family be afraid? >> senator, thank you for bringing up this example. in my opinions on the affordable care act in a case where i upheld the affordable care act against an origination clause challenge and in the sky case

where i made clear that i thought the timing of the case was premature. in both those decisions, i expressed my respect for the congressional goal in that legislation of ensuring health insurance for uninsured americans and providing more affordable healthcare for all americans to take care of people who didn't have health insurance, people who had conditions like the one you're bringing out here. i understand the real world impacts of the affordable care act. i have made that clear in my decisions. i've also -- so in my decisions on the affordable care act have shown respect for the act and respect for congress, respect for the law and an understanding of the real world impacts. in terms of prosecutorial discretion, the united states versus richard nixon case did

say that the executive branch has the exclusive authority and absolute discretion whether to prosecute a case -- >> i'm going to interrupt you because i'm out of time. >> okay. >> if the chairman wants to give you more time, i'm more than happy to hear the rest of your answer. but i just want to express to you my fear and my deep concern that you will not apply the law to the facts, but use the law to advance an ideological position that may affect the people of america like connor. thank you. >> before i go to the senator, did you say all you wanted to to the senator? >> i did. >> you don't have to respond to what i'm going to say, but i think we need some clarification if you want to give it, but only if you want to give it. we have heard it suggested that you did not give clear testimony

about any relationship you might have with various people in regard to the mueller investigation. so have you made any precommitments or offered any forecasts, winks, nods or secret handshakes to the president, the vice president, the white house lawyers anyone else in the administration or anyone at all about if and how you would rule on any matter related to any way to special counsel robert mueller's current investigation? >> no, i have not. >> senator? >> thank you, mr. chairman. and before i begin asking questions, i would like to follow up on that exact line. i have in my hands a printout of a story that was published two hours ago on cnbc. the headline says trump lawyer denies kavanaugh ever spoke to anyone at the firm about mueller probe. it goes on to discuss this in a little more detail, but i would

like to ask unanimous consent that this report be put into the record. >> without objection. so ordered >> thank you, mr. chairman. and judge kavanaugh, before i go to some of my questions in which i'm going to ask you to describe mostly some of the legal parameters in which we work today with regard to the separation of powers, i wanted to go back to the independent counsel versus special counsel issue one more time. you will recall yesterday in my questioning i went through the differences between the independent counsel and the special counsel. the reason i'm coming back to it is i've been a little puzzled by my colleague's attacks on your writings about the morrison case. which was talking then about the 1988 case in which the supreme court upheld that then old independent counsel system. and i've concluded -- maybe i'm wrong -- but i have concluded

the reason that they keep bringing it up and bringing it up is that they may be trying to create some confusion between the old case -- the old system, which you were criticizing, which justice scalia criticized if i understand correctly, which senator durbin criticized, and others did, and the current system, and i wonder if maybe they are trying to create an impression in the public that you were criticizing the current system. so i just want to give you one more chance to make it clear in your writings about the morrison case, were you criticizing the current special counsel system? >> thank you, senator. no, i was not. i have tried to make clear to the other senator and otherwise that i have repeatedly discussed the special counsel system, the tradition of that kind of system, with approval in the georgetown law journal article that i wrote in the late 90s, as well as most recently in the phh decision where i specifically distinguished that from the

independent counsel system. the old independent p counsel system in morrison which dealt with it has not existed since 99. the current special counsel system i have spoken approvingly of the general system and the tradition of special counsel. >> thank you. i hope that that puts it to rest. like i say, for several days now i have been perplexed as to why it is that your criticism of a system that ended in 1999 was of such concern. and i hope that any confusion that's been created by those consistent attacks doesn't create and won't create an impression that you were making any comment about your current situation. so thank you for that. what i would like to do with the rest of the time i have is to go through some issues related the separation of powers, and i realize that you've been through this. it may seem like endlessly in the last few days, but i want to go back and first start with the notion of deference with regard to rule making and the chevron

document. could you just describe to us what the chevron doctrine is? >> yes, senator. what that says, that doctrine, when congress passes a statute, and in an administrative agency, an executive or independent agency is implementing that statute, the agency's interpretation of that statute will be upheld by a court so long as it's a reasonable interpretation of any ambiguity or gap that may exist in the statute. if the agency is interpreting it in a way contrary to its language, as interpreted by the text structure, history, as reflected in chevron footnote 9, then it is an impermissible interpretation but otherwise if there's an ambiguity or gap in the interpretation it is reasonable the courts under the chevron doctrine uphold it. >> when you talk about interpreting the statute, you are talking about agency rule

making. >> ordinarily it would be -- or typically it will be an agency rule making or at least often it will be an agency rule making. >> there is an exception; correct, for major cases -- or what is the exception? >> for rules of major economic or social significance, the supreme court has long made clear that the deference to the agencies will not apply in those cases, in those cases, we expect congress in the words of the supreme court, most recently in the uarg case, we expect congress to speak clearly, if it wants to assign rule making not an issue of major economic or social significance to an agency, and that's a doctrine that justice breyer in the 80s first talked about, i believe. another justice in the 80's decision as well talked about. and those -- that doctrine has been applied by the supreme court since the 90s, most

reclently in the king versus burrwell and uarg decisions. >> it seems to me that that's a pretty broad or maybe narrow exception. what i mean is, ill defined, how does a judge -- how does a judge determine when you have a major circumstance that would be impacted by the exception? is there a standard? or there some rules of how a judge makes that determination? >> there's no clear rule on that. i have talked about that in the u.s. telecom decision that the supreme court has not as yet provided specific guidance, and you look at the number of people affected, the amount of money involved, the kind of attention it's received in congress, the kind of attention it's received in the public, and you make a judgment based on that, whether

this is the kind of rule as justice breyer first explained that's really filling a smaller intricacies of a statute or as a big socioeconomic decision. there are a lot of factors you can look into to determine that. >> also it seems to me and this is relevant to a number of comments you have received in questions, that if the congressional statute that is passed is vague or broad, that the room for agency discretion is greater. does that play an impact -- or play a role in the determination as to whether it's a major exception that would require deeper review by the court? >> well, the question of ambiguity is something that applies in all of these chevron cases, but i do think as well in the major rules situation, what justice scalia said for the

supreme court in the uarg case is if it's a rule of major economic or social significance, we expect congress to speak clearly, and that speak clearly phrase in justice scalia's opinion for the court is quite important. in other words, we want to see an expressed assignment of authority to decide a major social or economic issue, if that's going to be upheld as a rule by the courts. >> thank you, i appreciate that. this issue is very important to me and to a number of my colleagues because there's a concern among many members of congress that congress has delegated too much of its responsibility to the executive branch, by giving them this deference in rule making. and the broader and more vague the congressional delegations are, the greater the opportunity for the executive to simply write law through rule makings. and so it's a very significant

issue. the further question i have is -- and i know you have also been asked this earlier, is there a point at which congressional delegation can be so broad as to be unconstitutional? for example, one of the cases -- or examples you were given earlier is if congress just decided to create another group and said we're going to have them be congress now. >> so the supreme courts long applied the nondelegation doctrine that allows broad delegations, at least under the precedent, but there is a limit to how broad those delegations can be. and there is litigation in the federal courts now and in the supreme court now about certain applications of the nondelegation doctrine, but the general law is that congress can delegate broadly, but there are limits. it has to be an intelligible principle is the phrase that the supreme court has used. now, what that means in practice

has been decided under a series of cases applying that principle over time. those precedents build on one another and that's what the court applies to figure out whether a delegation has gone too far. >> this brings in the issue of independent agencies as well. and i know you have talked about that a lot as well. humphreys executor is the case that sets the standard; correct, as to what is an appropriate -- appropriately constitutionally created independent agency? >> that's correct. the 1935 decision in humphreys executor upheld the concept of independent agencies where the heads of the agencies are removable only for cause, not at will, so we see agencies such as the federal communications commission, the fcc and the like. >> you have ruled in the pcaob case that the creation of that independent agency was unconstitutional? >> that particular independent agency was differently

structured than the typical and traditional independent agencies. i dissented in the dc circuit on the -- in a challenge to the constitutionality of that structure because it was two levels of for cause removal in essence. the supreme court granted review in an opinion by chief justice roberts, they agreed with the -- set forth in essence in the dissent in the free enterprise fund versus pcaob case and chief justice roberts opinion for the court in that case. >> what about the cfpb case, i understand that you did not rule that the cfpb could be -- was so unconstitutional that it had to be eliminated, but that its structure needed to be changed with regard to the president's authority to replace the director. could you first of all just describe your reasoning in that case a little bit, and then i have one follow-up question on

that. >> that decision in my view followed from the pcob case chief justice roberts had written for the supreme court. the cfpb was also structured differently from the traditional independent agency, and the supreme court speaking through chief justice roberts had made clear that independent agencies that were novel, not historically routed, the structure, were problematic constitutionally. and the single director head of an independent agency was something novel, not something that had traditionally occurred in independent agencies. so i felt under the precedent set forth by the supreme court in the free enterprise fund case that that was a problem, but i did not say that the agency was invalid or could not continue to pursue its important functions, regulatory functions for consumer protection. rather i said simply that the single director head of it had

to be removable at will, not for cause. and i also made clear, though, if congress wanted to have a traditional multimember independent agency, congress could of course change that structure, if it wanted. the important point for your question is that the agency would continue to operate. there was another judge who did say that due to that flaw, the whole agency should stop, cease operation. i did not agree with that remedy because i did not think that was the proper remedy under the supreme court's precedence remedying constitutional problems. >> that's really my follow-up question. i'm one of those who has been working since almost before the creation of the cfpb to establish a board, a balanced board to run the cfpb which i think would have addressed the constitutional issue that you found. but the question i have is, why did you choose the route that kept the agency operating rather than joining with the other judge to say that it had to cease operating until it was

fixed? >> senator, that's a question of a doctrine known as severability, and what that doctrine means is suppose you have a law -- a big law, and one provision of the law is unconstitutional, what do you do as a court? do you strike down the entire law, or do you hold simply the one provision invalid and excise that provision from the law? and the traditional approach is reflected perhaps best in marberry versus madison which found a section of the judiciary act of 1799 on jurisdiction of the supreme court of the courts to be unconstitutional. and what did the court do in marberry versus madison? did it strike down the entire judiciary act? no. it excised the one provision that didn't enforce the one provision that was unconstitutional and simply excised that. the traditional approach to

severability is ultimately one of congressional intent to try to figure out what congress would have wanted in the statute, but i have written about this both in cases and in articles that as a general proposition, the proper approach for a court is to try not to disturb more than is necessary of the work congress has done in setting forth a statute and therefore severability as i referred to it narrow severability is the norm unless congress has specified a contrary intent or unless the whole law just -- unless it just wouldn't work otherwise. >> all right. i appreciate that explanation. and to go back to agency deference, for just a minute, i would like to talk about the administrative procedures act, just to create the full picture. when we were talking about the chevron doctrine, that's a court-made doctrine, with regard to deference agency, rule making and other interpretation of statutes, the administrative procedures act contains a

statutory requirement, doesn't it, that requires the findings of fact that the agency makes in quasi judicial proceedings to be honored. have i got that right? >> that is with some deference, that's correct. >> and the reason i bring that up is not so much because it's judicially created issue but because it just shows the broad parameter of deference that either through congress or through judicial precedent has been given to the executive branch in terms of what many of us believe is the equivalent of making law. and just as we don't want you making law, i personally don't want to see the executive branch making law without involvement of congress to the maximum extent possible. and so these are issues that i hope you will pay attention to in terms of the appropriate establishment and precedent necessary for the kind of separations of powers in our constitutional system that we

need to have, as we move forward. i'm not even asking you to comment on that. i'm just making an observation. >> well, i will add one comment, which i do think it's important when we do review adjudications, which is another part of the bread and butter of the dc circuit, so agency adjudications where, for example, it could be a benefits case of some kind or an adjudication of an nrlb case, that when we review those adjudications i do think it is important the courts be aware of the importance of those cases and the individuals affected by those cases and make sure the adjudications are complying with the principles of american justice and due process that we expect in the adjudication when someone's life, liberty or property is on the line. and administrative adjudication is something i have written about in many of my cases to make sure that the proper kind of fact finding is occurring, even in the administrative

adjudications. >> thank you. i appreciate you making that note, and i actually have pages of summaries of your adjudications on those kinds of issues. i will make a statement there for the argument that you are not watching out for the little guy or you're not making sure that the litigants in their engagement with executive agencies are protected, people just have to read the cases. i commend you for being very very carefully attentive to making sure that the rights of individuals in agency adjudications are protected and honored. >> thank you. >> last thing i will do with my two minutes is i want to talk to you about western states issues. senator flake got into this a little bit yesterday. and i actually was surprised to hear him say i think he said 83 or 85 percent of arizona was owned by the federal government. i'm impressed -- i'm sorry for him, but in idaho it is 63% of

the state is federal land. >> uh-huh. >> we believe that -- you know, we've got the bragging rights to gorgeous country, whether it's mountains, rivers, deserts, fishing, hunting, recreation of all different kinds. the environment that we have in idaho is a wonderful place. that's one of the reasons people go there to live. we are also very concerned about the management of that federal land. we want to make sure that at the same time we protect and preserve this heritage, we also allow the people who live there to be able to have an ability to make a life and to make a living. and there's a conflict there. i don't believe it's an irreparable conflict. in fact i believe it is something where both a strong economy and a strong environment can be achieved. i'm not asking you to make any commitments about anything, except i would like you to just acknowledge to me as you did to senator flake that you understand, we've got some

incredibly different types of issues in the west that relate to the differences in landowner ship. >> absolutely, senator. i understand that, and i have tried through my decisions, cases like the mesa case, cases like the carpenters case to understand the situation with the west, the land, the designations of land. it's not my job of course as a judge to make the policy decisions for those land or environmental regulations, but it is my job to police the boundaries of what you have set forth in the statutes and to make sure that the executive is not unilaterally rewriting the law or going beyond what's been authorized by congress. it is also my job when constitutional boundaries are crossed in terms of action taken by the government, with respect to land or landowners to make sure that i'm enforcing the constitution.

i understand and i hope my opinions demonstrate my understanding and appreciation for the importance of land and landowners in the western states and throughout the entire united states for that matter, but i know how important it is to you and senator flake as well. >> thank you very much. >> thank you, senator. >> thank you, mr. chairman. the chairman asked and you responded that you had not engaged in any secret handshakes, winks, and no discussions relating to the mueller investigation. on the other hand, your minnesota law review article wherein you say congress should protect a sitting president from criminal or civil proceedings is a pretty big signal or notice to this president and as far as i can see it is a very big blinking red light. i was also listening to the series of questions asked of you by senator blumenthal, regarding the comments made by the president, referencing judges. is disagreeing with the

president a concern to you? >> i'm an independent judge. i have ruled in cases such as a case where that was a signature prosecution -- >> so you are saying that disagreeing with the president is not a concern to you, is that what your response is? >> i am saying that as a judge deciding cases or controversies, i decide cases based on who has the better position. i've done that for 12 years. i have a record to show that. 307 opinions and over 2,000 cases. >> disagreeing with the president a concern to you when it is not a case in front of you? >> following the lead of the judicial cannons, following the lead of chief justice roberts who leads the federal judiciary, we stay out of politics. we don't comment on politics. we don't comment on comments made by politicians. we stay out, way away from politics. >> so to the extent that a comment is made by the president then disagreeing with him, any statement that the president makes is political to you and

you will not respond. thank you. let me follow up with some questions that some of us had of you yesterday and last night. yesterday evening senator tillis asked you about a case that i discussed where the issue was whether the state of hawaii could restrict the vote of officers of affairs. i felt so strongly about the importance of the trust obligations to the native hawaiian community, the people of hawaii voted to create the office of hawaiian affairs, also known as oha in our constitution. it's not just a law. it is in our constitution that we created the office of hawaiian affairs in 1978. in answering senator tillis, you described the case, giving it a different and grossly misleading

spin. what you said totally ignored and disparaged the trust obligation that the state had to native hawaiians and this trust obligation led the state to create the office of hawaiian affairs and to decide who should be able to vote for leaders of that office, native hawaiians. you said the state denied voting to people who are residents and citizens of hawaii but were not of the correct race and therefore african-americans and latinos and asian americans and whites were barred from voting for that office. you then misstated the holding of the case, you said quote the supreme court held that that was a straightforward violation of the 14th and 15th amendments of the u.s. constitution. i will get to your misstatement later, but my first question to you is, do you think that this can be used to justify the argument that programs to benefit native hawaiians are

subject to strict scrutiny and of questionable validity under the constitution as you noted in the e-mail that i referred to last night? :: >> that was something i wrote in an e-mail then and if that issue came before me there has been subsequent president that would be relevant and i would have an open mind about how to apply the president with the spring court in strict scrutiny or intermediate scrutiny that would apply in a case like this and consider the fact. >> the 15 amendment case says should another state action

voting case come to you but my question was whether you return to rice with the proposition that programs have renovated native hawaiians to be subject to strict scrutiny because they are of questionable [inaudible] under the constitution. >> i appreciate that. it would be analyzed in the light of christ but in light of the other residences of the spring court on programs that contracting programs and higher education programs which are set forth a body of precedent under which programs like that would be in life. i look at the specific program and the facts and arguments of the case. >> considering that rice was the 15th amendment case and you're citing two other examples where other constitutional provisions may come into play rice should be eliminated to 15th amendment case. that is what the court decided.

in fact, you answered last night that the case was decided under the 14th and 15th and he said it was a straightforward violation of 14, 15 amendment of the constitution. that is not what the court did as i iterated and i thank you agree because that is what you wanted the decision to be based on it you wanted to see rice's decision to be based on the 14th and 15th amendment. that is not what they did. this reminds me of the criticism that was lodged against you in the anthem case majority said that you applied the law as you wanted it to be, not what it is. question to you is where in the rice course opinion to the court decide the case on 14th amendment grounds. >> the principle of the 15th amendment is that there can be voting restrictions on the

base -- >> where in the decision does the court rely on the 14 the moment, you are citing to the 15th. >> the 14th and 15th amendments, i think, both prohibit restrictions on voting on the basis of race. fifteenth amendment supposedly refers to voting for the 14th amendment applies as i read the precedent to all state restrictions on the basis of race. >> fourteenth amendment relies on [inaudible] but that is not what the court chose to decide. or based this decision on. i would expect someone who is going to be on the spring court to be very careful inciting precedent and to be accurate in saying what the court basis decision and it's totally clear to me because you have not been able to cite to the opinion in

rice that says we are deciding this case based on the 14th the moment. they did not. that is disturbing to me. that you would site that case for the proposition that it was based on the 14 amendment when clearly it was not. you have been, as i noted, been criticized for citing laws as he wished it to be and not as it is. let me go on. in the free exercise clause of the first amendment issues each person the freedom of conscience to pursue their own religious values and these rights and when they would interfere with another's ability to do their thing. in recent years wide range of individuals and institutions have received special dispensations to impose the police and others and more notably with the hobby lobby versus brillo case. a case that raises those issues came before you.

in that case one of the things you had to determine was whether there was a substantial burden on the employer's. the employer's claim that the act of filling out a form to let their insurance company and health and human services know they have a religious objection were going to cover the contraception that it was overly burdensome. it was not a priest for providing the contraception coverage, a third party was. the priest were not focused or foreseen that third party to cover but congress was through the aca. in your descent you thought that was too much. use the employer's religious exercise was substantially burdensome and they could deny contraceptive coverage to their employees. my question to you is do you believe that the freedom of religion clause supersedes other rights? >> no. senator, i made clear on the

decision that the religious freedom restoration act has a three-part test. first, substantial burden but i found that satisfied their based on the hobby lobby precedent but i was bound to follow from the wheaton college with compelling interest, i found a compelling interest there for the government ensuring access and then the third prong was leased to strict amines and i made clear and i cited the siegel love you article that makes clear -- >> let me get to the first prong. you determined that filling out a two-page form was unduly burdensome. did you not? >> concluded that penalizing someone thousands and thousands of dollars for failing to fill out a form and they did not fill it out because of their religious beliefs -- >> if they filled out a two-page form they could have been totally insulated from thousands and thousands of fines? the question became, not the

fine, that was irrelevant, the question was whether a two-page form was overly burdensome and you determined it was overly burdensome. so, it defies logic to me. let me go on what i would consider to be a belated case which is garza versus hardin. i would consider these two cases as being related because first of all, they are bookcases about women's reproductive freedom. second, while you balance the interest of the parties involved in very noise you come to different conclusions. what is similar is in both cases you ruled against the women. in cars of the hardin brought up before you argue the governments is a charade of trying to keep a young woman in custody until it was too late to get an abortion was not an undue burden on her rights. forcing her to remain in custody and in fact, considering this to

be a parental consent case which was not the case and they were led to insist that a government requirement that religious filler employers filled out a short form declaring their objections to providing healthcare was too much of a burden. in each case you reach the desired outcome which is against women's reproductive rights and you ignored the commonsense meaning of burden and by the way, filling out a two-page form the majority opinion did not consider that overly burdensome. i really think your conclusions of filling out the form is over burdensome and defy logic. it's logical in the sense that in both cases you were against women's reproductive rights. how is it possible for me to draw any other conclusion that basically you really want to limit a woman's reproductive rights. even though you engage in a

balancing test and in the case of priests for life, filling out a two-page form was too much but in the case of garza it was not too much to have this young woman remain in custody and to be forced, as far as you are concerned, to wait around for foster parents to be found. >> in each case, senator, i did my best to apply the precedent. the hobby lobby in wheaton college, they had dealt with a form and so i followed as best they could the wheaton college case. the supreme court had a six-three vote found or granted emergency injunction and in that case i try my best to follow that. >> that is saying about following precedent. oftentimes your own perspective the judges ideological

viewpoints come into play as to which precedent to apply, how to apply the precedent and what parts of the precedent you want to apply. let me get to something that should be simple. you said yesterday that [inaudible] had been overruled. in trump the hawaii they said they were great long [inaudible] and to be clear, has no place under the law in the constitution. i'm curious. it's been overruled by the court of history of loa to overrule a case? >> what the chief justice was recognizing was the same thing the supreme court, justice brennan, who recognized in "the new york times" versus sullivan reset the sedition act of 1798 had been overruled in the court of history and in other words, there is not a specific case arose but it was important for this to be court but nonetheless to recognize that this law in this case of the sedition act

and precedent was no longer good law and to note that so the chief justice noted that in the trump versus -- >> after the cases brought many years later it was made very clear that they had been wrongly decided. it would be nice if the courts history can overrule cases but let me go on to trump first hawaii. chief justice declared they had nothing to do with this case. justice sotomayor and i'm quoting her saying all the more troubling giving this start parallels between the reasoning of this case and that of [inaudible]. she continues quote, the court gave a path to an odious injurious racial classification other by an executive order. they invoked an ill-defined national security threat to find exclusionary policy proportion.

the love between the case is very strong because in trump first hawaii, as it was in [inaudible], the precedent discriminated against the minority group on national security grounds in both cases the court did not question and obviously bogus justification. they did not in both cases go behind a bald-faced assertion by the president this was based on security. where does this reasoning take us because if the break can claim national security as a shield against any challenge to his actions? under what circumstances do you think the court based on the most recent case, trump versus white, the court would find the president state investigation of potential security? >> the court did clear in a variety of cases that it will hold the executive branch account in national security

cases. in 2008 the young son case in 1952, the [inaudible] case -- the natural security is not a blank check for the president, the court has said justice o'connor writing in the [inaudible] case. the principle under our constitution is that even in the context of wartime courts are not silent, civil liberties are not silent. the particular case you're raising chief justice roberts concluded that there was no violation in that case the general principle is important rate is that were these laws including the national security context of the precedent of the court and over the history is organized that the law applies even in wartime national security. >> thing is though the most recent iteration of an articulation of national security to justify an executive order is trump versus hawaii. the record was replete with

references and statements but the three had made as to intentions. this is a muslim band and talked about it during the campaign and after pain. he told the justice departmen department -- [background noises] he told the justice department give me an iteration of the band that would withstand constitutional challenge to the most recent iteration is very concerning because it does to me that the precedent can say this is based on national security the court made the that were not the kind that articulation. let me move on. running out of time. the war in court in 2017 you gave it beautifully justice

william rehnquist and explain that you chose the topic many lung worthwhile students and federalist society types of little or no sense of the jurisprudence in importance of modern constitutional law. they went on to say they do not know about his role and treat this up in court away from its 1960s war "-right-double-quote approach with a court in some cases has seemed to be simply enshrining views into the constitution or so the critics. then you chief justice because he righted the of constitutional jurisdiction. what decisions of the war in court where you are free to as simply enshrining the policy views into the concert -- rethinking brown or loving or any of the war in court decisions that created rights for individuals, privacy rights,

which were the war in court decisions you thought needed to be righted by the rehnquist court? >> i said or the critics charged. identify the areas where chief justice rehnquist had helped reach consensus for maybe a middle ground on areas of criminal procedure that is religion was cases and identified those in his speeches. when he passed away and even before he passed away many of the justice who worked with him were much is worthy of chief justice rehnquist or fiercely defended the independence of the judiciary. >> i'd be curious to note that particular cases you are noting but particular cases. >> i refer to them in the speech but thank you.

>> after the senators kennedy asks questions will take a 30 minute dinner break i expect we will be back around six of the and four senators will be able to as close to, booker, deliverable corn and several members have requested the third round. after all questions have been used will move 26 for the closest. senator i just wanted to say one thing. mr., when i introduced the players earlier i did not see the three in the second row. they are three eighth-graders. and megan. [background noises] >> they are getting an introduction to democracy, mr. chairman. it is noisy and alex pointed to the later. >> senator kennedy.

>> thank you, mr. chairman. welcome you will get used to the yelling. (-left-parenthesis it happened over senator phyllis -- it happened over to the times in the last three days. it is not really how democracy is supposed to work. judge, i will repeat what i said yesterday. i'm not going to ask you to give me on how you might both of the court if you are conferred. i certainly don't want you to violate to the canons of ethics and i may have to gently interrupt you a few times to move you along. remove me along. [laughter] yesterday, you started to talk about justice hardin and billy about whether you should vote in the political election and

somehow we ran out of time and i thought i'd give you the opportunity to finish that thought. >> thank you senator. one of the things that we have to do is judges as i've emphasized many times in the searing is maintained the independence of the federal judiciary and independence from politics and independence from political influence or public pressure. part of that for the canons for federal judges is that we don't attend political rallies and we are not allowed to donate to political campaigns, support political candidates, put bumper stickers on their cars, signs in our yards. one of the things i decided we are allowed technically to vote but one of the things i decided after i voted in the first election they read something about how the second start packing justice decided not to

vote because he thought that reinforce the independence he felt the judge that i thought about that and decided to follow their lead. i'm not saying my approach is right and other judges take a different approach and i respect that. it felt, to me, were consistent for me with the independence of the judiciary not to go because i voting great ability and one in which they think deeply about the policy the almost as if i was taking bold reveals into the voting booth and i did not want to do that. i decided to follow the lead of the second joseph and i'll be the first day of the second justice. he was a great justice on the supreme court and someone i if i were to be confirmed in order to be on the court and follow his lead. >> you don't vote the political elections? >> i do not vote in political election.

>> last night you talked about your outreach effort to attract more women and minority law clerks. did you quickly go through that for me again. i was getting coffee when you are -- talking about that. >> senator, one of the issues in american society generally but also in the judiciary has been to advance to overcome discriminatory history of the country and to help advance the cause of women and minorities in the legal profession. one of the areas that reveal itself is law clerk hiring. one of the -- that is importan important -- >> law clerks were judges.

>> yes, we get four lockers each year and they're there for one year and turn over after a year. they are at team. you get a new team up for the next year. they are among the best and brightest out of american law schools and often will go on to leadership positions in the congress or state legislator or the judiciary or public service. very important treaty provisions for the future leaders of america. there was disparity when i came on the bench and the number of women and minorities so i decided to be proactive about that. there was a problem identified and excited to be proactive. and women look front proud of my 48 law clerks the majority have been women in the best and brightest. one of the confirmed as a federal judge on the us court of

appeals the 11th circuit. she was in my second class of clerks. that is important because my mom didn't lose the trailblazer in the law and over the barriers to women achieve equality. i want to do my part as well. not just because of her when she was an example to help achieve equality for women and to give them equal place at the table. i helped in one small piece and i don't want to overdo it and tried to be proactive and make a difference. >> what about minority outreach? be back in 2009 or 2010 -- after i was on the court for three years there was a hearing in the house appropriations committee with you to go up every year and talk about the supreme court budget and testify before the upper basin committee to get

money to explain the need for money for the supreme court for the following year. just a justice breyer were there. they were talking about the seeming disparity with minority law clerks and in particular african-american courts, they talked supreme court law clerks the supreme court justices. one of the things they said was they hired from the lower court. they pointed out that the pool in the courts of appeal and the disparities and so they were dependent on what the court of appeals did and does. it that is a bit "eggs you think about it might both pay back what did you do it back. >> ou "-spelling-right-double-quote

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you've read an opinion before where you agree with the conclusion but not the reasoning. have you had that experience?

>> i have. >> i think we all have. can you tell me what in god's name a penumbra is? >> senator, the supreme court, as i think you're referring to, once used that term but it doesn't use that term anymore for figuring out what otherwise unenumerated rights are protected by the united states. what it refers to now is a test in the gluxburg case and justice kagan talked about this. the gluxburg case sets forth a test where unenumerated rights will be recognized if they're set forth in tradition. >> can i stop you? it's deeply rooted and are those roots that are growing there a

long time? do you understand what i'm asking? >> i fear i don't. >> well, that's my fault. is it something that americans have cherished? or is it a moray of contemporary society? >> when the court referred to deeply rooted in history and tradition, it has looked to history. i don't think there's a one side fits all. is -- the glucksberg test means the court is not simply doing what your role is, which is to figure out the best policy and to enshrine it into the law in the constitution in the case of the court but is looking for as best it can objective indicia of

rights that are not exclusively enumerated in the constitution but are protected. the best example is the pierce case, oregon passed a law saying that everyone -- this is in the 1920s saying that everyone in the state of oregon, every student had to attend a public school and could not attend a parochial or private school and parents who wanted to send their child to a catholic school sued and argued that violated the united states constitution. it made >> rights in essence. i apologize for interrupting but we are dealing with

ballots like the rule of law? or privacy or equal opportunity or personal responsibility? how do you determine what values all americans cherish? all americans cherish and to discover as a result of that superior intellect of those nine individuals o is part of the constitution and has been there for a long time. but most of us could not see it, except the nine justices. >> i don't think that is the conception of the judicial role the supreme court has articulated. >> i agree but that is the

perception some people have.pe with appreciation of government. >> i agree with you the values question is one that is first and foremost for congress to figure out the policy and states legislature federal judges and the supreme court not to import our own values we are five people like any other american who don't have a charter to create new rights just because we think they are best to make excuse me for interrupting but i think justice scalia has said no disrespect, that those people can establish this. and that their sense of

morality is no better or worse than picking out the first five names. >> he did say that and it is a comment that is shared and reflected now but it's i recognize it is important though people don't get confused the rule -- rooted in precedent not in our values but reflected in the constitution passed by congress and i realize those gray areas but it is important. >> excuse me again for interrupting.

i bet most americans could agree today that we have a privacy rights. we have search and seizure privacy but we also believe disclosure privacyev is important. autonomy privacy is important. talk about constitution. i'm glad that it is. but how it got there matters. how it got there matters. not just the end results. >> i agree with that. i just have a few minutes left. i can to your testimony the last two days that high school was a formative year for you.

>> i did georgetown prep the jesuit high school here. it was very formative. >> what was it like for you? did you ever get in trouble? we more of john boy walton? laughmac or few -- ferris bueller? [laughter] these ladies are old enough. >> i love sports first and foremost i had a law of friends i talk about and they have been here so it was very formative. >> you left out the trouble parts. >> that is encompassed under the friends.

>> you are an athlete? >> football and basketball my football coach he is legendary football coach so the last few weeks in a slightly different situation than the previous 53 years in terms of where i can go freely, i have been working out on weekends at my old high school running on the track and ran into him he still helps out with the football team you sent me a text a few nights ago. that is awesome. >> got is ongoing to get out ofta you. i will reserve my two hours ten'm minutes i'm sorry to

minutes and seven seconds. [laughter] i was going to ask the judge if not him but any of his running buddies but i will not go there. >> i am grateful for the senators self-restraint. your endurance has been remarkable those of us on the dais who could come and go along the way you have had to sit there for two full days and you are not through yet but you are close. i thank you said you ran a couple of marathons this is the 20-milewh mark and you have hit the wall but you are getting closer. briefly your conversation with senator kennedy about your law

clerks and to be proactive reminds me of a conversation i had briefly withha you serving on state appeals board the texas supreme court where i would also higher law clerks most often they were female and i would ask them occasionally why do you think it is i end up hiring predominantly female lawt clerks? it's easier on her. we are smarter and we work harder. so with that we will take a 30 minute break and then senator booker will begin before our third round.

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[inaudible conversations] [inaudible conversations] the committee could question him for more than 20 hours over two days today members heard from outside witnesses and legal experts we will have the day for you after 8:00 o'clock eastern