justice kagan: i take it, mr. goldberg, that a part of what the state is saying here is that it doesn't have the capacity to do that. it doesn't have the capacity to check message-by-message or click-by-click what a person is doing. and in the absence of that, that some kind of prophylactic remedy is needed. and that's not unheard of in first amendment law. i mean, if you think of a case like burson, which is the 50 feet with -- mr. goldberg: sure. justice kagan: -- in the polling places, that's kind of a prophylactic rule. so why wouldn't the same be appropriate here? mr. goldberg: well, your honor, we -- obviously, there are times when prophylactic rules are permissible under the first amendment. mr. packingham, when he was convicted, got a condition that said you shall not have any contact with the specific victim of this crime. that would -- otherwise, if that were applied to you or me, that would be an abridgement of our freedom of speech. so there's no general rule. the court has said repeatedly that you sho

justice kagan: not only the president. i mean, we're sort of aware of it because the president now uses twitter. but in fact, everybody uses twitter. all 50 governors, all 100 senators, every member of the house has a twitter account. so this has become a crucial -- crucially important channel of political communication. and a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing, is that right? mr. montgomery: that's right. however, there are alternatives. usually those congressmen also have their own web page. as far as twitter -- justice kennedy: well, it seems to me, i don't know if -- that we ever did have a public square, but assuming we had a public square 100 years ago, could you say that this person couldn't go into the public square? the sites that justice kagan has described and their utility and their extent of their coverage are greater than the communication you could ever had, even in the paradigm of public square. mr. montgomery: in essence, st

justice kagan: but for those -- mr. fisher: the standard -- i would just say the standard is highest possible standards achievable directly in the text of the statute. justice kagan: but for those of us who have some feeling that the word "equality" is a poor fit for this statute and its focus on individuation -- mr. fisher: uh-huh. justice kagan: what would you say to those of us? how would you describe what you think is required without focusing on equality? mr. fisher: i would say just what the court said in rowley for the -- for the typical child with a disability who can achieve at grade level, which is the standard that the school district has to try to meet, is progress in the general educational curriculum -- justice ginsburg: but we're dealing here -- mr. fisher: at grade level. justice ginsburg: we're dealing here with a child who -- mr. fisher: and then -- and then dealing with a child who's not going to get there equally challenging or, justice kagan, i would say alternate achievement benchmarks, to use exac

kagan: and why is that? when would such a policy not have the requisite impact on a voting district? mr. elias: right. justice kagan, i think this gets actually to justice briars -- breyer's actual point. if you had a district where it had no impact, it actually didn't cause voters to be moved in significant numbers, then we agree with the solicitor generals office and this court in alabama that, if a significant number of voters are not moved as a result of that racial threshold, then strict scrutiny is not triggered. ms. kagan: so we really are looking to what justice breyer suggested, which is, we are looking to the movement of voters in and out of a particular district? mr. elias: yes, and i don't think that is in dispute. we'll hear from my colleague, and maybe i'll be surprised but i don't think that's the dispute. i think the issue is the legal error that was committed by the district court in saying that, if we find a district that looks like it's abided by traditional districting criteria, that's th

then the solicitor general, kagan, slightly retreated from the government's position. then solicitor general kagan said, while the law could apply to a book the government had not applied it in the peace. when asked again by chief justice roberts about a pamphlet, the responded, i think a pamphlet would be different. a pamphlet is a pretty classic electi electioneering. i want everybody to understand when we talk about citizens united. they argue id it was a constitutional authority to prevent the publishing of a pamphlet opposing a candidate in a nonprofit organization. we as a country have a long history of people being able to cra criticize the government which includes specific offices in government. sometimes this was done anonymously because exposing the speaker's identity had serious implication, whether the american revolution, jim crow south or today. therefore, we must be caution giving the federal government including the executive branch power to limit or penalize core political speech. judge gorsuch, you may not be able to see that. do you recognize this b

for all of our mistakes, i don't mean to do a poor imitation of bob kagan or anyone up here, but for all of our mistakes we have about 70% of world gdp and military spending loosely aligned under a western system. when you combine that with the advantage economically of maritime trade, where trade is still a lot better than rail lines through siberia with all due respect to our chinese and russian -- if i had to choose between putting them on ships or the rails in eurasian i'll take the former in a heart beat. we're well positioned for the globalizing economy and other reasons as well. so when president trump said he inherited a mess, in one sense you can have some sympathy because he hasn't done foreign policy and now he has to deal with 17,000 issues and a lot of them are hard. some are truly dangerous. on the other hand, the strategic position from which he is poised to address them is basically unrivaled in history. and for all of the challenges to world order that tom writes about and you should buy his book and the next few years -- last few years of setbacks we are still in a

and elena kagan in 2010. watch thursday at 8:00 p.m. astern on c-span2. earlier today the justice department announced charges were being brought against four people, including two russian intelligence officers, for the 2014 hacking of 500 million yahoo accounts. his is 25 minutes. >> good morning, thank you for being here today. i'm mary mccord, acting director

but justice kagan and justice sotomayor t. cave from a view of the law that i don't except in terms of why would have chosen but well within the mainstream but of judicial philosophy from the left i think they'll let exemplary lives quite frankly. and i thought are these the worst woman in the world greg say live contemporary lives, highly qualified and that is why i voted for weem. but now i'm beginning to wonder how the game is played by remember when i voted for them negative harry. harry reid is around here somewhere he told me something the basically said a wish more people would follow senator gramm's lead boat -- rooting for the holly -- highly qualified nominees may be that will happen in the future. whether or not he is highly qualified i am dying to hear where he is not. and qualified to be sitting here been in the occupied down the street. paisa the musical hamilton in "the federalist papers" 78, , of the role of the senate bill specially favored in the stay in association to the family and most supreme court justic

>> justice kagan, the rule we're asking this court to an adopt to avoid the nominalist result when a u.s. domestic officer on u.s. soil shoots and there's no constitutional constraints, when there is a cross border shooting involving a federal law enforcement officer on u.s. soil, and the resulting injury is in close proximity then 4th amendment constraints on that officer should apply. >> that's a test that surprisingly fits the exact facts of your case. it seems to me the principles you're arguing for can't be so narrowly confined. and for example, how do you analyze the case of a drone strike in iraq? where the plane is piloted from nevada? why wouldn't the same analysis apply in that case? >> chief justice, if it was a drone strike, i'm assuming that it was probably military. i'm assuming that there was cooperation with other governments. here in our case. >> so if this were in your case somebody from the state national guard or whatever, then there would be a different result? >> well, if it was a state national guard, i'm not sure that they would be shooting across the border,

hardly a radical position if justice kagan and judge gorsuch agree with originalism. it's certainly not a methodology of interpreting law that should stir any concern. yesterday some of our democratic colleagues continued to reinforce my view that they don't really have any legitimate objection and reason to filibuster judge neil gorsuch. this is about judge gorsuch. this is not about president trump. this is not about merrick garland. this is not about anything else. we will have a chance to vote on the nomination of judge neil gorsuch for the united states supreme court. that is the question that will be presented to the senate for an up-or-down vote. and any fair-minded person would have to conclude that he is an independent legal mind and that he won't legislate from the bench. he has the intelligence, experience, and character to be a good judge, as he has been for ten years on the tenth circuit court of appeals out of denver. and he has an unflinching commitment to upholding a faithful interpretation of the constitution and our laws. so i look forward to confirm

that is a reason i didn't ask sonja soto mayor and elena kagan to give me an opinion what they would do when they get over four because they wouldn't tell me that, didn't feel comfortable asking them that. as to merrick garland, one thing i can say for sure is when justice scalia passed on february 13th we had three primaries on the republican side, the campaign was in full swing on the democratic side. are we doing something unfair here by not allowing the current president to nominate somebody to to fill a vacancy in the last year of their presidency after the political process had started. when i started looking around at what other people thought here is what joe biden thought. if someone steps down i recommend the president not name someone, not send up a name if bush did send someone up i would ask the senate to consider not having hearings on that nominee. it would be a pragmatic conclusion that once the political season is underway and it is, action on supreme court nominations must be put off until after the election campaign is over. that is what my friend joe said in 1992.

yes, justice kagan who sitting at this table said we're all originalists in this sense. i believe we are. >> judge, i thank you for that very scholarly answer. you are right. justice kagan gave an answer that had many similar aspects and said we apply what they say, what they meant to do, so in that sense, we are all originalists. you know, you reference the kilo case. i think it does -- it selves well to rebut the caricature of originalists. how could the framers possibly imagine modern contraptions? thermal images didn't exist in the 1700s. the framers had no idea what it was. so under the caricature that the democrats have suggested, you would assume the originalists in the case would all line up on the side of saying, gosh, the fourth amendment doesn't cover that. yet the kilo case, the majority opinion, 5-4 was written by justice scalia. the leading originalist on the court. it was joined by justice thomas. indeed justice stephens dissented in that case. so i think that case illustrates that any judge doing his or her job a thorough understanding of the original und

>> justice kagan, in all respects, except where the victim lie, this is a typical bivens case. you have a u.s. law enforcement exercising unreasonable force and sergio hernandez is in the group of victims that are injured as a result of excessive force. the issue is is where he fell and where he is shot, does it take out of his right to a bivens. >> well, i've waited while the rule was being discussed because that's important but as justice kagan's question indicates, whether or not there can and should be a bivens action is critical to your case. since 1988 this court has not recognized a single bivens action. we look for special considerations. you've indicated that there's a problem all along the border. why doesn't that the counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with mexico what the solution ought to be. it seems to me that this is an extraordinary case for to us say there's a bivens action in light of what we've done since 1988 where we haven't created a single one. >> justice kennedy, there is

watch on c-span 2.ina kagan 2010. watch on c-span 2.na kagan 2010. watch on c-span 2. >> anyone working in any hedge fund, everyday coming in and trading stocks, all of those people want edge. that's a common term in the industry. they want edge. and you know, there's this white edge that is useless for their purpose possess. there is the gray zone, and then black edge which is clearly inside information. >> sunday night on q & a, new yorker staff writer sheel sheelah kohhatkar talks about the case against hedge fund manager and his firm. >> the two kind of central characters at the heart of the story, very central characters in my book are these two former pole folio managers, matthew martama is one and matthew steinburg is the other one. and martoma is serving a lengthy prison sentence. his case on appeal. steinburg was convicted but his conviction was overturned that an appeals court made it harder to convict someone for insider trading. >> sunday night at 8:00 p.m. eastern on c-span's q & a. >> now a discussion on the independent payment advisory

statements like that were also directed against justices stoudamire and kagan. i remember stoudamire being called a racist because she gave a speech i was edgy. i remember kagan being called unpatriotic because she made a decision at harvard to kick people off campus. the reason i didn't buy one was a racist and one was unpatriotic is because i took the time to look at the way they lived their lives and i listened to what people had to say who interacted with them all their lives. to my democratic colleagues, if you take the time to listen to people who have interacted with judges gorsuch draw his entire career, you will find pretty quickly that he's a fine, decent man who has tried to be a good father, a good husband, a good lawyer, and a good judge. if you don't want to take the time, it says more about you than him. all i can say is it is impossible to conclude that what nancy pelosi said about you is anything other than political side because there are no facts to justify it. the aba gave you the most highly qualified rating they could give anybody. i just w

caliace kagan and justice wrote a dsent, fish is tangible object. and those things don't divide along any kind of ideological lines. i'm confident there are justices who in that case or in heller would as a matter of policy have come out differently than they did as a matter of judging. and that to me is all the difference in the world. not doing what we would like but what we think the law is. senator cruz: let's turn to another topic. some of my colleagues on the democratic side have raised some questions about the federalist ociety and have raised it with a tone that suggests it is some nepharious and secret organization. i was waiting to hear the question, are you a member of the federalist society and given that context tore the sake of candor, i am and have been a member of the federalist society since i was 21 years old and first year law school when i joined and there are over 60,000 members, law students and lawyers and those just interested in the constitution and the rule of law. and one of the things that has struck me about the federali

. >> can i go back to justice kagan's hypothetical? it doesn't address the situation where dual prices are suggested but where there's a dual price regime. some consumers are going to pay more and son consumers are going to pay more. in her e hypothetical she said the sticker price is the higher price. when the cash purchaser comes to the cash register, the purchaser gets a surprise, you're going to be charged less. i thought your argument if that's the correct interpretation of the stature -- what new york state has done is to force the merchant to say, to post a particular sticker price, namely the higher sticker price as opposed to the lower sticker price. so, that is mandated speech, isn't that your argument? >> i think new york -- it's not mandated speech. they haven't told us precisely what to say. >> if it's okay to post the higher price and nothing more and the higher price was the credit card price they are forcing the merchant to speak in a particular way. >> i think what they're doing -- they are forcing the merchant to spea

>> the congress' judgment was the process -- >> so your answer to justice kagan is yes. if you consider everything, but do nothing, that is okay. >> if you do nothing, then you haven't provided any benefit. there is still bite in the standard of rowley itself. what we are saying in the context of spending clause conversation is you cannot do more than that and require something significant. once you throw in the significance, education is one of the more contested areas of society. parents have been known to disagree:. there is acronyms about this theory or that theory or 30 hours being significant. rowley said in san antonio versus rodriguez is not where a federal, generalist court should be. i suppose you could say maybe that is not the right policy and this is something that should happen and courts should get involved. that has to be a judgment for congress to make and something clearly in the context of pending. rowley expressly said the principle applies to this provision of the statue. this is core legislation and a core requirement of the statute and they are imp

then the solicitor general, kagan, slightly retreated from the government's position. then solicitor general kagan said, while the law could apply to a book the government had not applied it in the peace. when asked again by chief justice roberts about a pamphlet, the responded, i think a pamphlet would be different. a pamphlet is a pretty classic electi electioneering. i want everybody to understand when we talk about citizens united. they argue id it was a constitutional authority to prevent the publishing of a pamphlet opposing a candidate in a nonprofit organization. we as a country have a long history of people being able to cra criticize the government which includes specific offices in government. sometimes this was done anonymously because exposing the speaker's identity had serious implication, whether the american revolution, jim crow south or today. therefore, we must be caution giving the federal government including the executive branch power to limit or penalize core political speech. judge gorsuch, you may not be able to see that. do you recognize this b

>> justice kagan, the reason that is our rule is the interaction at the border of our southwest porter has resulted off in the shots being fired across the border. >> you keep saying not there's a problem here, but there may be problems in other situations as well. there might be problems when u.s. officials go into a foreign nations territory. that leaves me still uncertain. you are seen as a practical matter this is where the incident fire. is that all you have as to why this is your role, why the border cases are different? >> so using the framework of the libyan and the factors and given this fact pattern is unique to the case we are here about today, but not unique to the situation on the border. the factors are used to plug in the role we are asking for. for example, nature of the site, status of the person seeking the constitutional protection importance of the right. thus factors we plug in to not just the specific problem but in reliance on the boumediene opinion and a functional application we took the four elements of the framework of boumediene and apply them into our rule.

but as justice kagan pointed out, there's a conflict. >> there absolutely is. it's all rooted, both the conflict with clinical standards generally and the prohibition and use of current medical standards and the hostility to current medical standards. >> but it is true that atkins left some discretion to the states. what is the rule that you propose for how closely state standards must hew to medical practice? >> i think it's the rule that the court announced and explained in hall, which is that the state must be informed by the medical community's diagnostic framework. and so what i understand that to mean is that -- and of course as the court said in atkins and hall and brumfield, the clinical evaluations are very important. if a state wants to conflict with or disagree with the clinical standard, then there has to be a sound reason for doing so. and i think in hall, this court identified several considerations. there are four considerations in particular that would go into evaluating whether there is a sound reason for doing so. the first is, is there genera

>> justice kagan, in all respect except for the lie this is a typical gibbons case. you have a law enforcement officer exercising unreasonable force and sergio hernandez is in the group of victims that are injured as a result of excessive force. the issue is, is where he felt and where he's shot, does it take it out of his right to bivens? >> i plan other rules are being discussed because that's important, but justice questions indicate whether or not this can or should be taken that section is critical to your case. >> since 1988, this court does not recognize a single bivens action, we look for special consideration. >> indicated there's a problem all along the border. >> if that counsel, this is one of the most sensitive areas of foreign affairs. >> the political branches should discuss with mexico what the solution want to be. >> it seems to me that this is an extraordinary case for us to say there's a veterans action and in light of what we've done since 1988, we can create a single one. >> justice, there is no alternative remedy. there had been 283 shootings an

in fact, he's remarkably similar on these metrics to supreme court justice elena kagan. he also goes on to write, quote: this zeal for the rule of law give withs me every confidence that gorsuch, like kagan, will stand firm against any effort by the trump administration to abuse executive power. he writes that liberals should welcome a nominee like gorsuch. i'd like to enter this one into the record also -- >> without objection, so ordered. >> thank you, mr. chairman. let's move on. one of my colleagues earlier today asked some questions about remarks that you assisted this preparing, remarks that were prepared f delivery by then-attorney general alberto gonzalez in connection with senate judiciary committee oversight hearing concerning the terrorist surveillance program. this is a hearing that occurred on february 6, 2006. one of my colleagues referred to this this morning. are you familiar with what i'm describing? >> very vaguely. >> okay. my understanding is that at the time you were serving as the principal deputy associate attorney general. would that be correct to

kagan, all the headlines were that this will ensure that graham it's primary. they were right. that's not the only reason, to my primary opponents, but that was the main reason. i made it through just fine. i don't know how we got here as a nation. justice scalia had 98 - 0. ginsburg was 96 - 3. what happened between now and then? how did we go from being able to understand that scalia was a wealth qualified conservative and ginsburg was a well-qualified liberal and recognize that elections matter. i don't know how we got there but here's what i hope, we turn around and go back to where we were because what we are doing will destroy the judiciary over time. >> thank you senator graham. now senator call bashar. >> thank you. welcome judge. we have met once before on our office and we are looking forward to hearing from you and we welcome your family as well. this midi has no greater responsibility than the one before us today. our constitution, laws and values all depend on a court that is impartial, fair and just. your nomination comes at an interesting time in our history. we

i remember elena kagan being called unpatriotic because she was involved in a decision at harvard to kick the rotc unit off the campus, and the reason i didn't buy, one was a racist and the other was unpatriotic is because i took the time to look at the way they lived their lives and now listen to what people had to say who had interacted with them all their lives. to my democratic colleagues, if you take the time to listen to people who have interacted with judge gorsuch throughout his entire career, you will find pretty quickly that he's a fine, decent man who has tried to be a good father, a good husband, a good lawyer, and a good judge, and if you don't want to take the time, it says more about you than him. all i can say is it is impossible to conclude that what nancy pelosi said about you is anything other than political talk because there are no facts to justify that. the aba gave you the most highsly qualified rating they could give anybody. i just want you to know that i believe you have led a life you should be proud of, that you've tried your best to be a good father, a go

kagan. even the dsm 5 itself, the current framework the petitioner points to says there is an imperfect fit in those two concepts and they have cited that exact same language for proposition. no, it is not the case that states have to categorically wholesale adopt the conditions of organizations. but what they did, in fact, was adopt the amf 9th. petitioner's ply brief says there is really no difference between the 11th and the 9th language. we're not talking about the facial text was language. i have a follow-up. >> let me skbrus take one of the bresidio factors that laypeople think about that sort of swauch's view of adaptive functioning which is. but they made it very clear, sort of point 1, that you're supposed to rely on what the neighbor said and what the teacher with absolutely no experience with respect to intellectual disability said. that seems to me a very big gircht between the view of intellect. they would already lift here about testimony it's not that this is evidence that's n

and elena kagan in 2010. watch thursday at 8:00 p.m. astern on c-span2. earlier today the justice department announced charges were being brought against four people, including two russian intelligence officers, for the 2014 hacking of 500 million yahoo accounts. his is 25 minutes. >> good morning, thank you for being here today. i'm mary mccord, acting director for the division of the department of jus tuss. with me, executive assistant director paul bayne, us district attorney for the district of california, and the national rector of affairs. we're here t announce a major law enrcent action related to one of the largest data breaches in rites history. we're the defendants include two officers of the russian federal security service, an agescy of the russian federation and two criminal hackers with whom they conspired to accomplish these intrusions. demetry -- both f.s.c. officers protected, directed, facilitated and paid criminal hackers to collect information through computer intrusions in the united states and elsewhere. they worke

justice kagan was approved by a vote of 63-37. it was bipartisan support coming out of the committee. i can assure you there wasn't bipartisan support for policy positions. for some reason judge gorsuch is being accused of being partisan or political or somehow connected to the president so that would disqualify him. ironically justice kagan was a member of the white house staff before she was nominated to be -- to go on to the court. that was not considered disqualifying when it was justice kagan and it was republics -- republicans in the minority looking at it. they considered everyone should be looked at fairly based on their qualifications. she was coming directly from the white house staff on to the supreme court. justice sotomayor was approved by a vote of 68-31. again bipartisan support. even in committee. clarence thomas, one of most controversial nominees in this last century. came out of the committee with a divided committee. after the vote failed, the committee then voted to send his nomination to the floor without a r

when my time came for tosotomay and kagan, came, i knew what would apply if i applied the standard. partisan people on both sides of the aisle. the voracity of people that wanted me to vote no was real, pare apparent and i could feel it. i believed if strom thurmen could vote for vinceberg and -- for scalia, there was a point in time you would vote for somebody you would not have chosen, you would use the qualifications of that person, so we find ourselves here today confronting a nomination of one of the most qualified people i think president trump could have chosen from the conservative world. you are not an unfit person. i don't think there's any reason to suggest that you're his favorite. had you ever met president trump personally? >> not until my interview. >> in that interview, did he ever ask you to overrule roe v. wade? >> no, senator. >> what would he have done? >> senator, i would have walked out the door. it's not what judges do. they don't do it at that end of pennsylvania avenue and shouldn't do it at this end either respectfully. >> this is what the democratic leader

kagan: it does not matter at all.ou are the same justice whether 37 noare 39 no votes, votes, or zero no votes. i honestly think it is just part of the process. there has been white a number of us now. some appointed by republican presidents. some appointed by democratic presidents. who have had a significant number of no votes. the process has become in part politicized and you're just going to have some opposition. i like to think that it does not have much to do with me. me i think that is true of and of a number of my colleagues -- the number of no votes does not have much to do with you that has to do with the political situation at t the number of no votes just much to do with you. it has to do with the political at the time. has to do with a whole world of they other than what think of you. >>> washington journal continues. host: we want to welcome scott represents pennsylvania in the center part of the state

justice kagan standing before this committee in the second day of her confirmation hearing her referring to the founding fathers to figure out what they understood and how those words were used but sometimes they lay down specific rules in the doorway with they tried to do that way we're all under regionalist for. moreover come out of the mainstream approach referring as the original list it is not a description attributed to you but what their confirmation process nowhere in the record is any record to being outside the mainstream with the u.s. is court of appeals was so remarkably uncontroversial that one senator and only one senator, senator gramm from south carolina was the only member who bothered to show up by your confirmation, hearing. the would have the above was not yet a member of the senate. you were confirmed unanimously by voice vote without the single novo. by today's politician you have made your views and i am sure colleagues will present say you are giving a a hint to how you may rule that is the reason for your confirmation not against it. but they don't legislation th

kagan: senator sessions and members of the committee. i'd like to thank senators kerry and brown for those generous introductions. i also want to thank the president again for nominating me to this position. i'm honor and humbled by his confidence. let me also thank all the members of the committee as well as many other senators for meeting with me in these last several weeks. i discovered that they call these courtesy visits for a reason. each of you has been unfailingly gracious and considerate. i know that we gather here on a day of sorrow for all of you, for this body, and for our with the passing of senator nation -- and for our nation with the passing of senator byrd. i did not know him personally as all of you did, but i certainly knew of his great love for this institution, his faithful service to the people of his state, and his abiding reverence for our constitution, a copy of which he carried with him every day. a moving reminder to each of us who serves in government of the ideals we must seek to fulfill. all of you and all o

justice kagan and justice scalia wrote a dissent, saying fish, that's a tangible object. you shouldn't have done it. and so these things don't divide along any kind of ordinary ideological line. i am confident that there are justices who in that case or in heller or any of these cases would as a matter of policy have come out differently than they did as a matter of judging. and that to me is all the difference in the world. we're not doing what we would like or what we think the law is. >> let's turn to another topic. some of my colleagues on the democratic side have raised some questions about the federalist society, and have raised it with a tone that suggests it is some nefarious and secret organization, indeed, i was waiting to see the question, are you now or have you ever been a member of the federalist society? and given that context for the sake of cantor, i'll go ahead and self-report now, i am, and have been a member of the federalist society since i was 21 years old and a first year law student when i happily joined. and, indeed, there are over 60,000 members,

vote threshold. >> bill: kagan got 63 and sotomayor got 68 without cloture or filibuster. asking the democrats to do for president what i and others did for president obama then this will all work out. he's the most qualified nominee since roberts. ten years on the bench, 127 decisions, one reversal the highest rating from the american bar association and a 900-page report after interviewing lawyers and he's one of the top jurists in the country. president trump couldn't have done better. it's politics going wide. >> shannon: you want him treated the way sotomayor and kagan were. and they want to treat him like garden was. >> i'll use the rule on judge garland. he's a fine man. justice scalia died in february, 2016. the south carolina primary for president was a week after his death. here's what joe biden said. in 1992 the last year of bush 41's term, if someone steps down i'd highly respect, president bush, not send a name but he send someone up. i'd ask the senate to seriously consider not having a hearing on the nominee because the political season is afoot. we took the

and each of the four last judges, two by president bush, alito and roberts, two by president obama, kagan and sotomayor, met that 60-vote standard. the bottom line is when we democrats had a chance to change the rules, we didn't change it for supreme court for that very reason. i would say to my republican friends and to the country, if you don't think the candidate can get -- if the candidate can't get 60 votes, the nominee can't get 60 votes, you don't change the rules. you change the candidate. one final point. mitch mcconnell has -- it's in his hands whether to change the rules. not ours. he doesn't come to this court with clean hands. he delayed merrick garland for a year, year and a half. if they want to change the rules, it would be bad for the country, bad for the congress. we didn't do it. it would be their loss. a lot of republicans don't want to change the rules. i'm not so sure it's a given. >> you said it would be unseemly to approve judge gorsuch as long as the fbi investigation is going on into the russian interference in the election. that could take years. >> we didn't sa

and yes, justice kagan, who sitting at this table said we're all originalists in this sense. and i believe we are. >> judge, thank you for that very scholarly answer. you're right that justice kagan gave an answer that had many similar aspects and said we apply what they say, what they meant to do, so in that sense, we are all originalists. and you know, you reference the kylo case, i think it does -- it serves well to rebut the caricature that some on the left try to paint of originalism. there, dealing with thermal imaging and the notion that gosh how could the framers possibly imagine modern con tribances, modern contraptions. thermal imaging didn't exist in the 1700s. framers had no idea what it was. so under the caricature that some democrats have suggested, you would assume the originalists in the case would all line up on the side of saying gosh, the fourth amendment doesn't cover that and yet the kylo case, majority opinion, 5-4 written by justice scalia. perhaps the leading originalist on the court. joined by justice thomas. and in deed justice stephens descended in

the former white house counsel in the obama administration said about elena kagan. "she is a progressive in the mold of obama himself." reince priebus said that trump picked a good guy. craig gregg, the former white house counsel, said that obama in elena kagan a progressive in the mold of obama himself. i did not vote for president obama. but he won, in spite of my opposition. presidentve that as of the united states he had a right to pick somebody from the progressive wing of the law. i expected him to do so and he did. twice. i knew full well what i was getting. i hope you understand you are getting one of the most qualified conservative judges in the country. senator feinstein said that her goal was to find out if you are a reasonable mainstream conservative. i will tell you, defendant -- senator feinstein, without any hesitation, that this man is as mainstream as you can get. if you don't believe me, listen to the man who knows him the best. the bottom line here is we are taking the nomination process to replace it was never ago by the framers of the constituti

the two george bush nominees, roberts and alito, the two barack obama nominee s, kagan and sotomayor, all passed the 60 votes. there is no reason why gorsuch shouldn't. if he can't is not change the rule, change the nominee. >> alito had 58. >> there was a cloture vote where he had over 70. >> he wound up in the end with 58. >> i said each justice met a 60-vote threshold. >> the american bar association says that neil gorsuch is highly qualified. do you believe that he's highly qualified? >> the issue is what his ideology is. he says he's going to call it down the middle. someone sofer eventually supported by the federalist society which has a history of moving the courts to the right. why are they doing that and spending $10 million these hard right groups to support him? is it because he's going to be a neutral judge and call balls and strikes? i don't believe so. if you look at his early history and court cases that doesn't support that. he has an instinctive reaction in too many cases to side with the big corporate special interest rather than the individuals. and supreme court is

i voted for sotomayor and kagan, why? i thought they were qualified.idn't vote for president obama or president trump. but when it comes to the election, once it's over, i think my advice and consent should be given not because i would have chosen somebody different, because they're qualified. when you look at the hamilton papers about this, he says the role of the senate is to knock out the unqualified, favoritism, somebody would favor one state over another, a special relationship to the president, some family member, not to substitute your judgment for that of the president and not to substitute your philosophy for that of the nominee. that's my view. >> it's what some amusement that senator harry reid invoked the nuclear option for appeals court judges and for trial court judges, allowing for just 51 votes instead of the 60 to cut it off. and now it looks like is that going to happen with the supreme court? >> it looks like we're headed that way. see, i was in the gang of 14 back in 2003, i can't remember when it was. the first bush term they whole

kagan got 60 votes, sotomayor got 60 votes, roberts got 60 votes and alito on a filibuster motion gottes. everyone should get 60 votes. and by the way, so my other point which i will make to my colleagues and have made and if a judge can't get 60 votes, a nominee, you don't change the rules, you change the judge. change the nominee. >> let me ask you one last question about the trump russia situation. obviously we're all wondering where these investigations are going to go there's investigations at the fbi, we have been told this week that there are investigations through the criminal division of the treasury department, in terms of the financial side of this. we also know there are congressional investigations, the intelligence committee in the house and senate. as the security agencies and intelligence agencies brief those investigators on what's going on with the question of collusion with the trump campaign and russia do you get the same briefings that the intelligence committee gets because you're the leader? >> i'm part of the so-called gang of eight. i get more classified infor

committee and in particular how he acquiesced to the same approach when now-justices sotomayor and kagan were presented with similarly timely hypotheticals during their confirmation processes. sadly, i have little doubt that this line of attack on judge gorsuch will continue to infect the confirmation process. but we should be completely clear and unambiguous about what these attempts to get judge gorsuch to answer hypothetical questions about the legality of the administration's policies represent. they are illegitimate partisan attempts to derail his nomination, cleverlily shrouded in the cloak of alleged concern about his independence. americans should not be under any illusions that these proffered concerns about independence amount to anything else. to turn to the second source of opposition to judge gorsuch's nomination, one need only examine this week's "new york times" heading which blaredblar, quote, democrats' line of attack on gorsuch, no friend of the little guy. unquote. this has been repeated by various left-wing interest groups and by some of my colleagues here in the sena

on kagan, same thing. and on sotomayor, republicans respected the president's authority to support to select a supreme court justice and allowing the confirmation. i think we have a moral high ground that my colleagues on the other side of the aisle should take note of. now two other stuff. i've got 15 minutes and i'm going to go really quick. the ethics class. i'm going to go back to absurdity. i'm glad mr. franken and showed what he did. there's going to be a lot of it spun in the press and i want to see if a few people will listen to the answers to these questions. i had to do with the letters that came from the class that you teach on ethics. can you tell me again exactly in -your discussion question that is raised. can you summarize that in 45 seconds? judge gorsuch: i'm heartened by the fact that scores and scores of my former students have written notice -- have written this committee. toator tillis: and i'm going take unanimous consent of the some of those letters into the record. judge gorsuch: ov

kagan, all the headlines were that this will ensure that graham it's primary. they were right. that's not the only reason, to my primary opponents, but that was the main reason. i made it through just fine. i don't know how we got here as a nation. justice scalia had 98 - 0. ginsburg was 96 - 3. what happened between now and then? how did we go from being able to understand that scalia was a wealth qualified conservative and ginsburg was a well-qualified liberal and recognize that elections matter. i don't know how we got there but here's what i hope, we turn around and go back to where we were because what we are doing will destroy the judiciary over time. >> thank you senator graham. now senator call bashar. >> thank you. welcome judge. we have met once before on our office and we are looking forward to hearing from you and we welcome your family as well. this midi has no greater responsibility than the one before us today. our constitution, laws and values all depend on a court that is impartial, fair and just. your nomination comes at an interesting time in our history. we