-- they want us to engage to eliminate if possible. dod, not doj has the lead which may be what led the doj l.a.'s confusion the key point for us is that we have the green light to engage. what i was trying to do was preserve the combat status -- the arb concept and allow the courts to judge the work product at the d.c. circuit. they have a judicial review. do you remember that? >> i do. >> okay, and it was settled in the congress for the combat status whether somebody was enemy combatant at the circuit court of appeals could review their product.

supreme court struck that dumb saying it was not an adequate substitute for hay b.s., is correct? >> that is absolutely correct, senator . your role is to try to improve the weight congress -- it was your view that congress would strengthen -- >> i was not a policymaker, but i did advise as did many others, there are many other very fine lawyers senator who advised the administration that the mitigation of congress to be a good idea, because we had read our youngstown and are nr justice jackson. >> any lawyer, i think, who understands this area of the law would understand the president is stronger with the support of the court. is it fair to say there was a conflict between the vice president's office and other parts of the bush administration about with a

signing statement should say or look like? >> that's my recollection and that's all i can recall. >> i remember it very well because vice president cheney's signing statement was going to be we have in inherent authorio do what we are want to do. there are other people saying you don't have the authority to set aside a law, you have have a reason to object to it. i just want the public to understand that when it comes to this man, i've seen him in action and very complicated emotional matters where we have one group of people who can give a damn about the sheriff and other people who wanted to criminalize what i thought was a real-world fight tried to find e ground. in a 5-4 decision, this up in court struck down my proposal and we fixed it later with a

huge bipartisan vote slid every enemy today has a habeas corpus receipting where the government has to approve if they reach that conclusion, you can be held as a prisoner of war. as long as you're a threat to our nation. it is at a fair summary? >> that's my understanding. along the way, your legislation did prevail in the d.c. circuit and the supreme court. it was a close call, it was 5-4 i recall. >> i disagree, i certainly respect the court's decision. speak out you're not going to give each commit one way or another. >> i'm not even going to try. the bottom line here is there will be more legislation coming for the role of the government and gathering information.

there's a difference between the law of war and domestic criminal law, do agree with that? >> yes, senator. >> that a common criminal, the goal of the law is to prosecute a crime for one individual or group committed against another individual or group, is that correct? >> that's right. >> the law of war is about winning the war. >> there are, as you know, rules about that and laws about that. >> fighting enemies who have no rules won't do anything. i have said that i want to be like them, i think that's their weakness and the starkest thing we could do is stand up for a process to the test of time, which is intelligence gathering in a humane way because they would set our heads off, it does make us weak because they won't cut their heads off. it actually makes us stronger over the arc of time, so that's my commercial about that. there will be more litigation

and there are no bad guys or girls when it comes to challenging the president, do agree with that question my people have a right to do that? >> to challenge the president? every person is allowed to come to court to bring whatever they claim they have. >> that's how the brown versus education came to be. let's talk about roe v. wade. what is the holding of roe v. wade and 30 seconds? [laughter] >> the holding of roe v. wade in 30 seconds is that a woman has a right to an abortion. it develops a trimester scheme in row that specifies when the state enters and when the women's interests tend to prevail. >> let me break it down. the court says that there is a right to privacy, the government can't interfere with that right in the first trimester. be on the first trimester, the

government has more interest as a baby develops, is that fair to say? >> that was the scheme forward. that was the test that the court came around and applied in kc in 1992. viability became more of the touchstone rather than a rigid -- >> is it fair to say that things in 1982 would be different and 2022? >> i'm not a senator or a docto doctor. >> you may have people coming in and saying in light of scientific changes, let's look at when medical viability occurs. that's one example of litigation that may come before you. i have legislation that says at 20 weeks, the unborn child is able to feel excruciating pain in the theory of the legislation

is that they have a compelling interest to protect and unborn child for an extra shooting pain which is caused by an abortion. i'm not asking you to agree with my legislation, i'm saying that i am developing we are 1 of 7 nations that allow wholesale on demand at abortion -- i'd like to get out of that club, but we are going to have a debate in this body in the house about whether or not we want to change the law to give and unborn child protection against extra shooting pain at 20 weeks because the standard medically as if you operate on an unborn child at 20 weeks, the medical protocols are such that you have to provide anesthesia because you don't want to hurt the chil child. medical practice is it such that when you operate on it unborn child at 20 weeks, which you can do, yet provide anesthesia. my theory is, let's look at it

the other way. should you allow and abortion on demand if a child couldn't experience extra shooting pain? i'm going to make the argument that there is a compelling state interest that at that stage of the pregnancy child is affected that it will be excruciatingly painful. you don't have to say a word, i'm just letting everybody know that if this legislation passes, it will be challenged before yo you. you have to look at a new theory on how the state can protect the unborn. here's what i think. you will read the brief, look at the facts, and make a decision, it may to conclude that? >> senator, i can promise you know more than that, and i guarantee you know less than that in every single case that comes before me. speak out this a case that is made available over time because 77% of american people side with me on the idea that at 20 weeks,

we should not be in the club of seven nations that allow abortion on demand. that doesn't make us a better nation. there will be people on the other side saying that it will go to the court. maybe if it passes here. the only reason i mention this is that everybody who wants to challenge whatever in court deserves a person like you. a person like you, no matter what pressures are applied to will say over and over again, i want to hear what both sides have to say, i went to read their legal arguments, look at the facts and i will decide. that to me is reassuring. that's exactly the same answer i got from stoudamire and kagan. no more, no less. we can talk forever about what you may or may not do. if you do anything different than that, i think you'd be

unworthy of the job. now, about what's going on in the country with president trum president trump. whether you like him or you don't, you have said several times that he is not above the law. is that correct? >> yes, senator. >> you told senator lahey if there was a law passed, a muslim cannot serve in the military, you believe based on current law that would be an illegal act. >> senator, yes, i see that having all sorts of constitutional problems under current law. >> if we have laws on the books that permit waterboarding, do you agree with me that the detainee treatment act prevents waterboarding? >> yes, senator, that's my recollection of it. >> in the case president trump

is watching, which he may very well be, one, you did a good job of picking gorsuch. number two, here's the bad part. if you start waterboarding people, you may get impeached. is that a fair summary? >> senator, the impeachment power belongs to this body. >> would he be subject to prosecution? >> senator, mechling to speculate. no man is above the law. no man. >> thank you. i think you are a man of the law and i really want to congratulate the president picking you, quite frankly, i was worried about who he would pick. maybe somebody on tv. [laughter] president trump could not have done better in choosing you and i hope people on the other side will understand that you may not like him, i certainly didn't

agree with president obama, but i understand why he picked kagan, and i hope you can understand my president trump picked milk or sage. i hope you can be happy with that as i am. >> thank you, senator . >> will recess until 12: 85. >> harris: it is going to be a long day for judge neil gorsuch, you're watching some interesting moments that were going to talk about. the judiciary committee is taking its first break now. democrats say they remain curious the republicans are blocking president obama's nominee for the nation when he was in office. they aimed to paint gorsuch as an out of touch and a tool of business type of judge. this is "outnumbered," i'm harris faulkner. here today, sandra smith, meghan mccain, lisa boothe, and today's #oneluckyguy, old

honest bob. we welcome back to the couch, robert beckel. >> robert: i'm doing fine. i haven't been here for a while, it's good to see you. i will say, this white couch -- a colored couch would be much nicer. a few more plants or something like that, but that's all right. >> harris: we were all watching the hearing, let's get to that. >> meghan: sorry don't have enough plants in here for you. >> harris: we knew today would be a marathon day of questioning for judge gorsuch and we are not even at the midway point of the session. it's expected to last ten hours or more so we can understand what it took a quick break. president trump's choice for the supreme court is getting a real

grilling from democrats. but not before judge b16 laid out the case with his own judicial independence, even from the president who nominated him. >> tell us whether you have any trouble ruling against the president who appointed you. >> that's a soft ball, mr. chairman. i have no difficulty ruling against or for any party other than based on what the law and the facts and a particular case require. i'm heartened by the support i have received from people who recognize that there is no such thing as a republican judge or a democratic judge. we just have judges. >> harris: senator grassley also asked gorsuch his own thoughts on roe vs. wade, the case that legalizes abortion and whether he failed any legal precedent or others. >> senator, again, i would tell you that roe vs. wade decided in

1973 is a president of the united states supreme court. it has been reaffirmed, its reliance considerations are important there and all the effects that go into analyzing precedent have to be considered. if i were to start telling you which were my favorite presidents which were my least favorite or review the president in that fashion, i would be to pay my hand and suggesting litigants that i've already made them up my mind about their cases. that's not a fair judge. i didn't want that kind of judgment as a lawyer and i don't want to be the kind of judge no now. i made a vow to myself i wouldn't be. >> harris: feinstein pressed the judge. she asked about the over turn the owning handguns was unclear. >> do you agree that the second

amendment is ambiguous? if so, should the ambiguity be decided by the courts or by legislators? >> i'd begin by saying i hold the judge in high regard, he's a very fine man. and a very fine judge. >> can you do yes or no? >> i wish i could. >> i wish you could too. >> the supreme court of the united states is in final because it's infallible as justice jackson reminds us. it's infallible because it's final. judge wilkinson had his view in the supreme court has spoken. heller is the law of the land. >> harris: oh, my gosh, sandra smith, you and i were both saying how they were trying to get them to go political" one way or another. >> sandra: he had a very consistent answer every time. he never wavered on that as much as they tried to get him. >> bob: this is one of the

easiest hearings you can have. it's all the same answer, i can't rule on that, i haven't decided, i'm not there yet. i'll take a look at on the merits. by the way, when he said he -- see if al gore buys into that notion. of course there are republican judges, right now, we happen to have more republican judges the democrat judges. >> sandra: he was very firm when he said do not expect a rubber-stamp. >> meghan: i think is emily going to pass. i don't think i could have created a more qualified person to be sitting there. everything from his head with his wife -- i just think all the attempt of the democrats are doing to vilify him to make amount to be a right wing pro- pro-court agenda is only going

to be used for entirely the wrong reasons. >> harris: can we talk a little bit about lindsey graham? we were talking behind the scenes and i was playing out. you saw him hit several areas with humor. >> lisa: did he ever get to a question? >> harris: what did you take away from that? we got to see a moment of levity there. >> lisa: lindsey graham is a character anyway. i think specifically, they're trying to gear up and get this controversy from him because this is a guy who was unflappable as we've seen in the answering of questions both are republicans and democrats. someone who has an impeccable record so much so that obama's former general has had positive things about him. this is a guy who was confirmed to the tenth circuit and 2006 without objection from many of the democratic senators that are

going to vote for him again. this is someone who'd been senator feinstein had said is a very caring person who is legally very smart who is impressive. a lot of democrats have said positive things. i think they're going to be hard-pressed not to support him and i to confirm him. >> bob: one thing that graham said that was important, when he asked him at the science changes and the next four years, roe v. wade and the decision about 20 weeks is based on science as we knew it, in other words, when does a child in vitro feel pain, he says of the science progresses that we'd find out, how would your real? he said i'm not a scientist. it was a good informed point. >> harris: what senator graham was saying is that there are cases right now of the science behind it and that's a possibility, not just hypothetical. >> sandra: one of the main criticisms that the kim jong-un brought up is that he sides with

the big corporations and senator feinstein who is a ranking member of the judiciary committee asked him about that. i thought his response was great. what he said was i have been a part of 2700 opinions over the past ten and a half years. he went off and named to the cases where he perceives that he stood up for the little guy as opposed. he said my job basically is to be fair. it's looking at the linkage of the law versus going with feeling or opinion or anything like that. it's simply looking at the linkage of the law. >> sandra: there are also questions about donald trump and at one point, the judge said it was a softball when he was asked if he would any trouble breaking with trump. obviously very firm. >> harris: one of the things coming talk with the democrats, they have to call each of their liars this point. you can see president obama's solicitor general pipe up and say it when a fair conservative

judge that he was. he politics were, but they didn't make their way up to the bench and he felt confident that he would do his job clearl clearly. we will get back to this author of the show, because it's happening. welcome back from the break too. we'll keep an eye on all this on capitol hill were senators. democrats are not letting up. it will bring you back to all the action when it happens. also, president trump is meeting with republicans ahead of thursday's vote to repeal and replace obamacare. whether he is going to be able to rally everybody in this party behind the g.o.p. plan. after the show, don't forget to hop up online. you can watch us live on facebook. our handle there, outnumbered fnc. tweet us anytime you want. i would like to do a little live tweeting. i'm into that. stay with us ♪

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alert, head of thursday's vote to repeal and replace obamacare. it came with a warning, republicans are saying they told him if they don't pass the bill, will face political consequences in 2018. mr. trump saying the meeting was great and he thinks they'll get the votes they need on thursday. in the meantime, the conservative freedom caucus says they won't force members to vote is a block, increasing changes the bill could pass. some members have expressed major concerns. house republicans express some changes tonight, including the amount of aid offered to older americans to buy insurance. the democratic senatorial campaign committee saying "this is simply a last ditch effort to save republicans from the cold political fallout of forcing older people to pay five times

more for care and costs on raising people." every republican senate candidate from nevada to florida will be dragged down by this toxic measure. paul ryan praising the president today. speak of the president just came here and not to the ball out of the park. he knocked to the cover off the ball and explain to our members how it's important to unify, how it's important to work together, how we are advancing our principles and what we told the mag people are going to do. this chance, this is our moment and i think our numbers are beginning to appreciate what kind of rendezvous we have here. >> when asked by reporters if they had the vote to pass a bill right now, mark meadows told reporters they do not. >> bob: i'll tell you where it goes. it goes like this. there's not a republican out there, even his right wing nuts who want to be responsible forcing this thing go down.

the biggest advantage from the beginning as they say we promised, we promise we promised, eight years, we've gotta get something through. mulvaney is a person who is three votes short and those three people have to face the voters. i think they will pass, but when it gets to the senate, it is dead, dead, dead. >> harris: i wish we had an eye rolling camera when you tal talk. >> meghan: i'm a little confused. are the right wing nuts the freedom caucus? >> harris: this side of the couch went what? >> meghan: there are so many things to respond to and that, but let's go back to your question. at first foremost, i have a hard time to believe that there is such a disconnect in the messaging. paul ryan saying trump kicked it out of the park, whatever,

headed out of the park. he does is a great job, amazing. they have freedom caucus members saying no dice, we'll probably not vote for this. it's probably good they're not voting is a collective. but you're telling me rand paul today will come out and say fix all the problems. >> bob: rand paul would be against this, a lot of people will be. by the way, what is a right wing nut? let's start with steve king. >> harris: that was a rhetorical question. >> bob: there's plenty of those guys over there, but there's not enough to overcome the pressure of the president getting passed to this thing. el paso, it will mean nothing, . >> meghan: if you are advising president trump, if people are saying it not going to happen, not going to vote for you, will you get on twitter, take it to the mattresses, there is is on their heads, not mine?

>> lisa: it's the majority who have led by double digits. i think, it's important to understand the politics -- if you look at the republican party, you have that republican senate committee, the changes that were made to medicaid grants as well as potential work requirements for medicaid was geared toward those members. he also of the house freedom caucus which is more to the right to a republican senate committee. as megan alluded to earlier in the show, they aren't whipping their members to vote against the bill, that's when trump is putting pressure on them and it matters. when you get to the senate, i believe it's very dicey. you have five senators expense and over medicaid funding and then you also have the tied cruises of the world, rand paul's, you are conservative.

>> harris: we all agree this is the sausage being made. do you think this will get done? yeah, more or less. >> meghan: you need eight democrats to get on board for the third phase in the senate. as ted cruz says you can get a democrat together to say good morning. >> bob: the chances of getting this to the senate as it is, not only do you have medicaid issues, but those governors out there, they agree to take the expansion, what are you going to do question or take it back now? that's one thing about politics in washington. >> lisa: with the reconciliation process, not one person will give they want based on the numbers in the house and being able to lose two senators. >> bob: if trump said to me i have to do this, i would say wh

why? >> sandra: we love having you, bob. welcome back. we are expecting them to return shortly to face more questioning from senators. we'll return and bring it back to live next ♪ wanna get away? now you can with southwest fares as low as 59 dollars one-way. yes to low fares with nothing to hide. that's transfarency.

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>> how do you ever met president trump personally? >> not until my interview. >> in that interview, did he ever ask you to overrule robie wade? it no, sir, dominic. >> what would you have done if he asked? >> senator, i would have walked out the door. not what judges do. i don't do it at that end of pennsylvania avenue, and they shouldn't do it at end either. >> harris: your take on gorsuch. to democrats like him? some have said great things about him. he has had no problems saying he is an independent minded person. >> bob: i'm beginning to the

sense that he's a constitutional match, which is pretty good. i remember some of the more liberal judges who have been appointed by republicans, i don't expect them to be liberal. he's not going to be alito, he's not going to be another right winger. a leader who probably stands out now is my least favorite judge, if we had to put up with somebody, this is not a bad guide to put up with. >> harris: will your team put up with him? >> bob: i think what's going to happen is he will save us from other things that are coming on the road, not the least of which is this ridiculous health care reform. >> harris: >> lisa: whenever id

bob, my mood instantly lice li. >> bob: i love the show, i think it's great. >> harris: he just wants us to buy some plans for the set. this one stuck out, there were some moments of contention on the hill with gorsuch. when you saw senator lahey luncheon about the president's executive order on extreme vetting and travel, it got a little interesting and shifty. watch this. >> the republican congressman recently said the best thing there were the president could do is have judge gorsuch on the court of appeals before he gets that point. >> senator, he has no idea how i rule. senator, i'm not going to say anything here that would give

anybody any idea how i would rule in any case like that that could come before the supreme court or my court of the tenth circuit. it would be grossly improper of a judge to do that. someone sits table, in order to get confirmed, had made promises or commitments to how they rule in a case that is currently pending and likely to make its way to the supreme court. >> harris: do you think the g.o.p. members were going what? >> lisa: i think any democrat that votes against him is a complete and utter fool, because this is a you want is a supreme court judge. he's not supposed to be a rubber-stamp for anyone. what he believes in the language of the law and that's what his job is. i think as they point out earlier, if you're one of the democrats who support him without it objection in 2006. the fact that he has the highest

ratings at the american bar association, how can you possibly justify voting against him? >> bob: i went back to some of the hearings of lincoln's administration, i was there actually. the thing is, everybody before the senate says the same thing. i'll be impartial, i'll follow the law, i won't prejudge anything. prejudging is a terrible mistake. he's going down the same script. >> sandra: go back to the days after he was nominated, go back to a couple of months even some of trump's harshest critics had some of the best thing he will ever do is nominate this man for the spring court. >> bob: it's the only thing i'll do. if you leave one legacy behind

as trump -- [all talking over each other] >> bob: she's tough, old man. >> meghan: saw my. this is ridiculous. democrats right now, if you vote against neil gorsuch, what kind of political casualty? >> bob: a >> harris: she won'tt against him. >> meghan: apparently have a crystal ball about trump getting impeached. it's not just her, she is a largest question of the red state.

there is a very popular when west virginia who will be up for reelection. >> bob: there will be at least 40 democrats. >> lisa: there is benign democratic senators who said it's an up or down vote. i think republicans have helped the democrats -- republicans supported the supreme court nominees like stoudamire. what democrats should do is the same thing the publicans have done. >> bob: they're breaking the law, they all should've been picked up. the idea that these guys like mitch mcconnell are holding up a nominee supreme court, the guy is a jerk. >> lisa: go read the journal and see the rest of the story. i just gave you --

>> bob: it was -- >> lisa: it was republicans who have been playing ball. >> bob: don't apologize for these guys. >> harris: it's nuts that he doesn't have a filter. the supreme court nominee neil gorsuch on the hot seat as we have been talking about this hour facing tough questions. they're expected to come back any moment and we will be covering it live as it happens. stay with us

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>> sandra: judge neal gorsuch's confirmation hearing is back underway after a brief recess. >> i was one voice among a great many. in terms of when it was struck down, hand and held that the detainment treaty act didn't apply retroactively, it only applied prospectively. at several years later, i want to say it was 2008 may be, court came back around. >> what i'm driving at is the mccain section, relative to cruel and inhuman degrading treatment. i assume or i hope you had a chance to glance at the emails senator feinstein gave you. you said in your email, you wanted a signing statement to the effect that mccain is best

read as interrogating policies. what interrogation policies to do think that mccain amendment was essentially codifying? >> senator, i haven't had a chance to look over that, i'm sorry, i've scarfed down a sandwich over break. i'll be happy to read it, but i'm not sure what i can answer you here sitting off the top of my head. it was 12 years ago and i'm doing the best i can with my recollection. >> i'm trying to get the leap from your memory and this email, i understand there were a hundred thousand pages of email emails. >> i think the department of justice has produced something like 2,000 pages. >> your lack of memory at the moment and contrast that with her clear statement that you believe that the mccain bill, which i supported outlawed waterboarding. >> sitting here, that would be my understanding.

>> the problem with what i just described is, when you are talking about a signing statement, waterboarding was still happening and you are saying in your email, i want to essentially codify existing interrogation policy. there is an inconsistency there which will have to wait until the second round to resolve. >> okay. >> let me read this to you and ask you. there is a statement by steve king of iowa and he said you cannot rebuild your civilization with somebody else's babies. you have to keep your birth rate up and in doing so, you can grow your population coming for strength in your culture, you can strengthen your way of life. the reaction to that statement was overwhelming. the civil rights leader john lewis called it bigoted and

paul ryan said he clearly disagreed with king's comments. he went on to say, the speaker clearly disagrees and inclusiveness is one of its great strengths. what would your reaction to that statement be? >> senator, i can talk about my record and i can tie that as a federal judge, when a defendant comes to court with an allegation, that thebased on hi. me and my colleagues, my colleagues and i, have removed that judge from the case. i can tell you that when an immigration lawyer fails to provide competent counsel time and time again, i've sent him to the bar for discipline. i can tell you that only comes to access injustice, i've written on this topic, i've worked on this topic for the last six years with many other

wonderful people. it takes too long for people to exercise their seventh amendment liberties and i can tell you together with my colleagues, we have found representation of des unacceptable in our circuit. a whole bunch of us, i can't take too much credit. we try to do something about it. i can tell you that when prisoners come to court and post a hand written complaints and i see something that might be meritorious in them, i appoint counsel. role. >> can you describe your relationship with professor john finis? >> sure, he was my dissertation supervisor. >> when did you first meet? >> whenever i went to oxford. it would have been 1990 -- it

could have been two or three, somewhere in there. >> it was a relationship with him? >> he was my dissertation supervisor and i would describe that as a relationship between teacher and student, and he was a very generous teacher, particularly generous with his red ink on my papers. i remember sitting next to the fire in his oxford office, like something out of harry potter, and he always had a cold stomach coal fireplace burning and some bozos being raked over the coals. he did not let an argument that i was working on go unchallenged from any direction. >> that was over 20 years ago they first met him? speak out whenever it is it is. >> do you still have a friendship or relationship with him? >> the last time i saw him, gos gosh, i know i saw him when he retired and there was a party

held in his honor and i remember seeing him then and there was a couple years ago. >> did he know you are from colorado? >> i don't know. at some point, and must have come out in our conversations. i don't know. >> do you recall seeing some words of gratitude for his help in writing your book? >> he did not write my book, senator. he did not help write my book. i wrote my book. i certainly expressed gratitude to my dissertation supervisor which is basically my dissertation. >> i think you were recorded in saying in 2006, you thanked him for his kind support through draft after draft. >> and there were a lot of drafts. that was a very tough degree, that was the most rigorous academic experience of my life

and i had to pass not just him, but an internal examiner and an external examiner and that was hard. >> in 2011 when notre dame ran a symposium to celebrate his work, he recalled your study under him and you said "it was a time when legal giants roamed among oxford spires." you called him one of the great scholars. >> oxford has a stable -- and it's one of the reasons it was such a privilege. i was a kid from colorado, i had a scholarship to go to oxford, i had never been to england, to europe before, oxford at that time, they had john finis, joe raz, ronald dworkin, hla hart was still alive. >> let me read a couple statements from professor finis. in 2009, he wrote about england's population.

he said england's population had "largely given up bearing children at a rate consistent with their communities term of survival." he warned they were on a path to "their own replacement as a people by other people's more or less regardless of the income is compatibility of psychology, culture, religion, or political ideas and ambitions, or the worth or viciousness of those ideas and ambitions." he went on to say "european states 21st century move into a trajectory of demographic decay, positively transfer by a kind of reversed colonization." had you ever read that before? >> no. >> had ever heard of before? no, not my recollection. >> could you dissing which bitumen he said in congress and king said? >> senator, i'm not here to answer for professor king or professor tennis. >> do you feel what professor

finis wrote about purity and culture in such is it something we should condemn or congratulate? >> senator, before i expressed any of you on that, i'd want to read it and i would want to read it from beginning to end, not an expert. senator, i've had a lot of professors, i've been blessed with some wonderful professors. i didn't agree with every thing they said, and i wouldn't expect them to agree with every thing i've said. >> let me ask you this specifically. it was 1993 and you're at oxford and this is when we believe you first met this professor. professor finis was then tapped by the solicitor general, to help defend a 1992 state constitutional amendment that broadly restricted the state from protecting, lesbian, and bisexual people and discrimination. during the course of the deposition which you gave in support of that effort, defendants argued that antipathy between algae bt peoples -- he

referred to homosexuality as beastie allergy in the course of this as well. are you aware of that? >> senator, i know he testified in the case, i can't say sitting here i recall specifics of his testimony or that he gave a deposition. >> i guess the reason i'm raising this is this is a man who, apparently, h on your life, certainly your academic life, and i'm trying to figure out where we can parse his views from your views. what impact he had on you as a student, what impact he has on you today with his views? >> i guess, the best evidence is what i've written. i've written or joined over 6 million words is a federal judge. i've written a couple of books. i've been a lawyer and a judge

for 25 or 30 years. that's my record, and i guess i would ask you respectively to look at my credentials and my record and some of the examples i've given you are from my record. about the k-uppercase-letter b.s. work come the access to judges. those of the things i've done. >> what about lgbtq individuals? >> senator, what about them? >> the point is they are people. what you said earlier was you had a record of speaking out, standing up for those minorities we believe are not being treated fairly. can you point to statements or cases he ruled on relative to that claim? >> senator, i try to treat each case and each person as a person, not a this kind of person, not a that kind of person. a person.

equal justice under law. it's a radical promise. in the history of mankind. >> does not refer to sexual orientation as well? >> it asterisk, supreme court of united states has held that single marriage is protected by the constitution. >> judge, would you agree that if an employee were to ask female job applicants about their family plans, but not male applicants, that would be evidence of discrimination prohibited by title vii of the civil rights act? >> senator, i agree with you that it's highly inappropriate. >> you don't believe it's prohibited? >> senator, it sounds like a potential hypothetical case. i might have to decide and i don't want to prejudge it sitting here at the confirmation table. i can tell you, it would be inappropriate. >> inappropriate. do you believe there are over situations where the cost to employer of maternity leave can justify an employer asking only female applicants and not a male

applicants about family plans? >> senator, those are not my words and i would never have said them. >> i didn't say that, ask if you agree with the statement. >> i'm telling and wayne versus give the state, at that case involved a cancer stricken professor, you wrote an opinion that said eeoc owes deference only to the extent it's raising actually proves persuasive. eeoc is enforcement of pregnancy determination provides as follows. because title vii pivots discrimination based on pregnancy, employers should not make inquiries into whether in applicant or employee intends to become pregnant. the eeoc will generally regard such a case as pregnancy determination where the employer makes an unfavorable job decision about the pregnant worker. you find this instruction to be persuasive? >> there are a lot of rates there. if you're asking me to parse them out and give a l