justice kavanagh. andhank you chief justice good morning mr. stewart. one question on merger doctrine and one question on method of operation. first, google says in its reply brief that the dispositive undisputed fact in the case is that the declarations could not be written any other way. this properly response to the calls used by java programmers. are they wrong in saying that? >> i don't think that they are wrong in saying that but they are in the correct proposition that a merger applies if it's the only way of getting the computer to perform a particular function but they divide the function is invoking the implementing code in response to calls that are known to developers and that's wrong for two or three reasons. first is section 302a this copyright protection subsists from the works creation and at the time the work was created there were no -- none to developers in the argument was not a justification for copping at that the time the second is as the chief justice pointed out in an earlier argument that arwould effectively penalized oracle pa

justice kavanagh? stewart responded to my question quoting pages 70 of your reply brief about the merger doctrine and i wanted to see if you had anything further you wanted to add on the merger doctrine to help us understand that. agrees with the factual court's findings, but the only way to respond to these developers' calls is with these instructions. his point is, well, so what? developers can write other call. that is a way of saying we can use a different method of operation. it is also nonsensical as a matter of copyright involvement. why would congress write a rule that says ok, these developers are extremely familiar with these commands, they are used to create computer programs, let's make this as an efficient as possible for them? that is not trying to create a fan base for oracle, is creating prisoners. it will lock lots of developers only into using java. that is not a right that you can get from copyright for that congress could confirm. >> thank you, mr. goldstein. >> mr. goldstein, you h

so you have the last two, both justice kavanagh and gorsuch and when president bush was in office, so if, in fact, they are supposed to be representative of the american people and their interests, that is not the case. it continues to be a lifetime appointment. i think we need to look at the office of supreme court justice differently moving forward. it's become a political body and that is very regrettable. >> well, i mean there's been talks of stomach amendments. it also hinges on what happens the next few weeks. we'll see. but i want to ask you this. going back to the president endsing the stimulus talks, many analysts believe that passing such a bill could potentially be beneficial for both parties, if you will, a bipartisan effort there. is there any insight into the president's motivation to take that action today, i guess? i know house speaker pelosi held a call with house democrats. what are your insight and what do you see? what are your thoughts on that? >> it's important to point out that the president of the united states has not talked to the third highest ranking person

forget is that oftentimes conservative members of the supreme court think also of course if you're kavanagh we've also been heavily criticized do tend to become more liberal in the specific institutional context of the supreme court so this is something that might also happen with it because. the democrats have been saying one way to address some of the concerns you've stated is to expand the size of the court do you see them actually pushing that. well biden has been very hesitant on doing this and i think there is some danger in doing this because it would politicize an institution that is supposed to be bipartisan or impartial rather and so biden has rejected to come to any clear conclusion he said he would he would hold a panel of scholars to come up with a decision or a question i think that depends also a lot on the framing is this something that is done in order to rebalance the supreme court after the republicans contradictory process of self-contradictory process really of nominating and equally byrd so i think it depends on the framing i think a biden will try to do this only and

appointment in 3 years his presidency has already seen the appointments of neo gorsuch and brit kavanagh i think at 48 to judge amy comey barrett's could shape the supreme court for many decades to come 3 years ago trump appointed the staunch conservative to the federal court of appeals in chicago she has indicated support for gun rights trumps immigration policies and restrictions on abortion and al g.b.t. rights group called her quote an absolute threat feminists fear she may move to restrict abortion rights in 2013 as a professor at the university of notre dame she was quoted as saying life begins at conception senate democrats grilled her on her religious views during the 2017 appeals court confirmation hearings senator california senator dianne feinstein was even accused of anti-catholic bigotry i think your case professor when you read your speeches. the conclusion one draws is that the dog lives loudly within you barrett has said repeatedly that her faith would not interfere with her judicial decisions if barrett is confirmed to be for election day on november 3rd one of the 1st c

the issues that have plagued supreme court nominations in particular what happened with justice kavanagh play into this dynamic and are unfortunate of a dozen of us. on a pipa ticket only hypocritical when he says record these words. there's no doubt that there are people on both sides of this issue who spoke out last time during the maryland garland and persuasion who are going to have their words thrown back at them certainly lindsey graham is dealing with some of that barack obama chuck schumer a number of people who made comments at that point are going to have to to hear those again the reality is the focus rightly once a nominee is announced and that process starts that process should really focus not on what was said back then but on the merits of this nominee and showing that vacancy. this can lead to of things this can lead to. democratic president a democratic senate and the senate votes to increase the supreme court to 12 they can do that and one of the things that we've heard is talk about court packing it was a really bad idea the last time that it was tried it's a bad idea

i thought gorsuch and kavanagh were qualified. we've taken a different path at times. thomas, alito, kavanaugh, i hope we don't take that path with judge barrett. she doesn't deserve that. i don't think it makes this hearing any better. the american people i believe would not deserve a repeat of those episodes and the senate cjudiciary committee. to my democratic colleagues, i respect y'all. we've done some things together and we've had some fights in this committee. i've tried to give you the time you need to make your case. and you have every right in the world to make your case. how the votes is going to come out. but i think judge barrett is required for the good of the nation to submit to your questions and ours, this is going to be a long, contentious week. i would just ask one thing of the committee, to the extent possible, let's make it respectful, let's make it challenging, let's remember the world is watching. senator feinstein. >>> thanks very much, mr. chairman. i want to address your last statements. we feel the same way. i believe we want this to be a ver

court voted 6-3 to moot the case out of new york, over a dissent -- sorry, in a concurrence, justice kavanagh said, we have plenty of cases coming up and i am basically saying that he agreed with the dissent on the merit. then a few weeks later when the court denied a slew of certain petitions bycert thomas and cavanaugh, i think what the reporting showed her what can be inferred is that justice roberts told his colleagues not to rely on him on any particular second amendment issue. this is certainly an area where if judge barrett becomes justice barrett, i think there would be a fifth reliable vote to start fleshing out the scope of the right and ending the confusion or willful disobedience of some of the lower courts in this area. >> i have gotten some terrific audience questions. i think i'm going to leap right in with some of those, and then let me know who wants to go first. one obvious question is that republicans do not always have a great track record when it comes to appointing conservative justices. go back to earl warren and bill brennan, president eisenhower was asked if he made a

it's going to be bogus just like it was with kavanagh and thomas but she will be confirmed and she wille on the supreme court before the end of the month. >> shannon: okay. mike davis, we'll check back in with you on that. great to have you back. >> thank you for having me. >> shannon: nbc news asking the president to denounce white supremacy. again. our panel for round two next. that cannot be extinguished. it rages on to give us a glimmer of what we can do, and of who we can become. because hope fuels opportunity. university of phoenix is awarding up to one million dollars in new scholarships through this month. yes, hope is alive and well. see what scholarship you qualify for at phoenix.edu. >> tech: every customer has their own safelite story. this couple was onship a camping trip...or ...when their windshield got a chip. they drove to safelite for a same-day repair. and with their insurance, it was no cost to them. >> woman: really? >> tech: that's service you can trust. >> singers: ♪ safelite repair, safelite replace. ♪ >> i denounce white supremacy. >> i've denounced white suprem

the supreme court of the united states and our hope is in the hearing next week on live justice kavanagh received with treatment from you and others and we hope she gets a fair hearing and we particularly hope that we don't see the kind of attacks on her christian faith that we saw before in the democrat chairman of the judiciary committee before when when judge baird was being confirmed for the court of appeals expressed concern that the dog of her faith lived loudly in her dick durbin of illinois said that it was a concern senator i know one of our judicial nominees you actually attacked because they were a member of the catholic knights of columbus just because the knights of columbus holds pro-life views and thank you thank you vice president so primate is that when the hearing takes place that thank you vice president judge a macone bearer will be respected thank you vice presidents voted in from frank the supreme court of the united center harris you're the senator from and former attorney general of california so let me ask you a parallel question to the one i posed to the vice pr

judge barrett: that opinion does not take an opinion different than justice kavanagh, it very carefullyeaves open the possibility that one use of the word would not be sufficient to make a hostile work environment claim. thatat case, the evidence the plaintiffs had relied on to establish the hostile work involved he was driving the wrong way down a ramp and the next lives were used, not the n-word. the n-word was used after his begun,tion had already and he didn't argue under clear supreme court precedent, i didn't make up the development, under clear supreme court precedent, both are required. he didn't say that it altered the terms, that is not how he made his case and it was a unanimous decision. sen booker: forgive me if i'm reading this case wrong, but you're saying to me he was not planning to be in a hostile work avironment and that it is pattern that supervisor called in the n-word and that does not constitute a hostile work environment and the way the justice kavanaugh said clearly that it does? judge barrett: i think you are mischaracterizing what i said with all respect. in t

judge barrett: that opinion does not take an opinion different than justice kavanagh, it very carefully leaves open the possibility that one use of the word would not be sufficient to make a hostile work environment claim. thatat case, the evidence the plaintiffs had relied on to establish the hostile work involved he was driving the wrong way down a ramp and the next lives were used, not the n-word. the n-word was used after his begun,tion had already and he didn't argue under clear supreme court precedent, i didn't make up the development, under clear supreme court precedent, both are required. he didn't say that it altered the terms, that is not how he made his case and it was a unanimous decision. sen booker: forgive me if i'm reading this case wrong, but you're saying to me he was not planning to be in a hostile work avironment and that it is pattern that supervisor called in the n-word and that does not constitute a hostile work environment and the way the justice kavanaugh said clearly that it does? judge barrett: i think you are mischaracterizing what i said with all respect. in

the supreme court of the united states and our hope is in the hearing next week on live justice kavanagh received with treatment from you and others and we hope she gets a fair hearing and we particularly hope that we don't see the kind of attacks on her christian faith that we saw before me the democrat chairman of the judiciary committee before when when judge baird was being confirmed for the court of appeals expressed concern that the dog of her faith lived loudly in her dick durbin of illinois said that it was a concern senator i know one of our judicial nominees you actually attacked because they were a member of the catholic knights of columbus just because the knights of columbus holds pro-life views and thank you thank you vice presidential primary is that when the hearing takes place that thank you vice president judge amy cody byrd will be respected thank you vice presidents voted in confirming the supreme court of the united center harris you're the senator from and former attorney general of california so let me ask you a parallel question to the one i posed to the vice pres