or prohibit a president from doing something it is the final word in our system over versus aaron marbury versus madison united states versus richard nixon and finally i would say the question of who controls the executive power with the president is dissing and on that latter question the scope i have made clear in the context of national security in the youngstown framework and administrative law my cases questioning unilateral rewriting of the law. criminal law i reverse convictions and i am not afraid at all from my record of the last 12 years to invalidate executive power. >> let me ask you this you refer to the youngstown p case in the decision by a president immensely unpopular and the decision of the supreme court that could of been very unpopular. and where we are as a nation now? w and that expansion of the executive branch. as they are found around the world asking you over and over to give reassurance about your commitment to the democratic petition country in face of a president prepared to cast aside whether voter suppression the role of the media, case after case we hear th

the judicial review wasn't even invented in marbury versus madison. in federalist 78, we say marbury created it. the review exists there. so it's a corrected application. but the reason i'm hesitating -- >> let me bring this back to the current context in why all of this is of concern to me and relevant. >> i didn't finish my answer. >> a series of public states resent about your enthusiasm for overturning morrison and you're not going to comment on that here. you won't answer that question here. you have a recent decision as a d.c. circuit judge where you forcefully articulate this unitary executive theory that would give the president significantly more power and if humphries executor is at any risk, we might then see a whole series of agencies moved or whole series of long established protections from at-will removal at some risk. let me make sure i get this right. in your view, can congress restrict the removal of any official within the executive branch? >> under the supreme court precedent, which i have applied in times, humphries, congress hist

board of education," marbury. have m-- marbury vchl. madison roe v.ion he was appointed to overturn. donald trump said in the the campaign. the dance that goes on here is very frustrating to those of us who cover these issues because this is what matters, these contested issues matter. also about u.s. v. nixon, he's been critical of that case in the past so i think he was trying to insulate himself from the claim he was too deferential to presidential power by embracing u.s. v. nixon but the nutritional content of the testimony yesterday was on the order of saltines, i would say. >> here's what else, i don't know, he did not take a position on, some really big questions. can a sitting president be forced to respond to a subpoena, can a president pardon himself? can a president fire a prosecutor who is currently investigating them? but the thing is -- and this is just what's sort of screwy about the process ever since robert bourque, i think most american people would say, no one expected him to answer those things. >> right, the fact that he would not

that's marbury versus madison. that's united states versus richard nixon.at is an important principle. and finally, i would say that the question of who controls the executive power within the executive branch, the vertical question, you have the president at the top. you have independent agencies which exist consistent with precedent is distinct from the question of what's the scope of the executive power ve sa vie congress. on that latter question, the scope of executive power vis-a-vis congress, the context of administrative law, my cases questioning unilateral rewriting of the law in the criminal law, where i have reversed convictions, i'm one not afraid at all through my record of 12 years to invalidate executive power when -- >> judge, let me ask you this. you've referred to youngstown case in the context of a war and a decision by a president that was immensely unpopular. >> yes. >> and the decision or might have been popular i should say and the decision of the supreme court which could have been very unpopular at that moment in history. what i'm tr

police say 26-year-old curtis marbury green had just stabbed a friend. a group of aufleofficers zeroing in and taking him down with a taser. he is charged with two counts of first-degree murder, two counts of first-degree assault and other related charges. >>> only on news 4, as a new school year begins in st. mary's county, maryla, pain remains. six months ago, great mills aigh school w scene of a deadly shooting. and the police officer who ran toward the shooting speaks out. it was his firstear as a school resource officer. as the bullet flu, ew, he ran towards the gunfire. but the whole ordeal left his daughter rattled. >> she was concerned and crying. she gets nervous for me to go to work, period. >> the capital was awarded a special commendation. you can watch the whole interview in the nbc washington app. >>> the teen who pushed her friend off of a bridgeill be in front of a judge. you might remember this vide taylor smith pushed her friend off the bridge when she was too scared to jump into the water below. the teen fell 60 feet, broke six ribs an

and exercise that provision from the law and the traditional approach is reflected perhaps best in marbury v. madison which found a section of the judiciary act of 1799 on jurisdiction of the supreme court of the courts to be unconstitutional and what did the court do in marbury v. madison, did it strike down the entire judiciary act? no, it excised the one provis n provision -- didn't enforce the one provision that was unconstitution unconstitutional. the traditional approach to severability is ultimately one of congressional intent to figure out what congress would have wanted in the statute but i have written about this in cases and in articles that as a jeb general proposition, the proper approach for a court is to try not to disturb more than is necessary of the work congress has done setting forth a statute and narrow severability is the norm unless congress has specified a contrary intent i'd like to talk about the administrative procedures act just to create the full pictures act. when we were talking about the chevron doctrine, that's a court made doctrine with regard to deference

and exercise that provision from the law and the traditional approach is reflected perhaps best in marbury v. madison which found a section of the judiciary act of 1799 on jurisdiction of the supreme court of the courts to be unconstitutional and what did the court do in marbury v. madison, did it strike down the entire judiciary act? no, it excised the one provis n provision -- didn't enforce the one provision that was unconstitution unconstitutional. the traditional approach to severability is ultimately one of congressional intent to figure out what congress would have wanted in the statute but i have written about this in cases and in articles that as a jeb general proposition, the proper approach for a court is to try not to disturb more than is necessary of the work congress has done setting forth a statute and narrow severability is the norm unless congress has specified a contrary intent i'd like to talk about the administrative procedures act just to create the full pictures act. when we were talking about the chevron doctrine, that's a court made doctrine with regard to deference

does the legislative branch, the executive branch disagree, it will be up to the supreme court under marbury versus madison to decide who is right and two prior justices already said if this kind of conflict arises congress acts improperly the supreme court might will intervene and decide the case. i lay that out in the book as a possible scenario. i'm not advising donald trump if he were to be impeached and removed not to leave. i'm just saying that is a reasonable possibility when you have 3 branches of government and two disagree about interpretation of the constitution. that has to be decided by the supreme court. >> that would be unlikely to be a problem but an additional reason, as you know we need two thirds to convict in the senate, even when there's a question about whether it was a crime you have a bipartisan coalition of senators who voted to convict in which only rise in annex and type situation with the president's standing with the public so degraded that members of his own party feel compelled and politically free to go against and convict him. in that circumstance it would be

you know about marbury versus madison. it was delayed because congress canceled their term.with a tacit agreement that is important to where we are today that says we will leave the judges alone, mostly, as long as they agree to politics.f partisan part so being left alone, independence is not the same as having power, something that might surprise you. for the next 20 or 30 years, the supreme court is very active, striking down things the young states are doing, and when the states don't like it, they just ignore the supreme court. they define it. y it.fine there is a case involving a cherokee accused of murder. the supreme court takes the case. georgia executes them. that goes on for about 30 years and comes to a close for reasons we could get into in a q&a. we get the idea as a country that when the supreme court says something, maybe we should follow it. maybe when the supreme court says something, we should take it as is or is interpretation of the constitution and make it our own. we get a sense of what today we call judicial supremacy, and that is fine unless the supr

united states, the supreme court talked about marbury. likewise, justice ruth bader ginsburg created the so-called ginsburg standard. no previews, no forecasts, no hints. every current member of the supreme court has adhered to a similar principle, what we might call the ginsburg standard. even though nominees have not caved to the pressure, i still believe that there are some spects of the senate's approach here that might do a disservice to the country and might be frowned upon by future historians. if senators repeatedly ask nominees about outcomes, then the public will be more entitled or at least more inclined to think that judges are supposed to be outcome-minded, that that's supposed their whole approach to judging, that that's supposed to be what judging is in fact about. but this, of course, undermines the very legitimacy of the courts themselves, the very legitimacy of the tribunal that you have been nominated by the president to serve on. over time, no free people would accept a judiciary that simply imposes its own policy pref

so i have always identified marbury versus madison, youngstown steel, brown versus board of education and united states versus richard nixon. and why have i -- brown versus board by the way the single greatest -- >> was it rightly so i have sa court's holding that a criminal trial subpoena to a president in the context of the special counsel la counsel regulations in that case for information, a criminal trial subpoena for on information under the specific regulations in that case, i have said that holding is one of the four greatest moments in supreme court history. so not only -- i can explain how that misunderstanding came up because i know there was a news story about that and that is just not correct impression of my views. my views have been consistently why was it one of the greatest moments? because of the political pressures of the time, the court stood up for drjudicial independence in a moment of national crisis. the supreme court -- we need the supreme chourt to decide the things that we can foresee, but one of the things that is really important, we'll have crisis moments

the four i've always identified are marbury verse madison, youngstown steel, brown versus board of education, and united states versus richard nixon. why have i -- brown versus board, by the way, the single greatest -- >> was it rightly decided? >> i have said that, yes, that the court's holding that a criminal trial subpoena to a president, in the context of the special counsel regulations in that case, for information, a criminal trial subpoena for information, under the specific regulations in that case, i have said that holding is one of the four greatest moments in supreme court history. not only -- i can explain how the misunderstanding came up. i know there was a news story about that. that's just not correct impression of my views. my views have been consistent. why was it one of the greatest moments? it was one of the greatest moments because of the political pressures of the time. the court stood up for judicial independence in a moment of national crisis. we need the supreme court to decide the things we can foresee. one of the things that's really important for the supreme court,

[laughter] i feel like that is a solution for real life marbury.to get rid of that in life and that is what is necessary now. >> question from the audience. is there a way to bring back the ability to the political conversation? i'll add my own commentary, would that not ruin all your shows? >> yes. [laughter] if's ability on social media is instability on social media replacing instability on the street so that like instead of i will be a jerk to scott adams in that way i will be a jerk to scott adams when his parking his car. we do know that violence overall is on decline. we are becoming less violent but becoming crueler. right? i don't know if it's translating it this ability questions -- okay, we had a higher murder rates when we are more civil. does that make sense? >> did we? yes, we did. >> the 50s was quiet, 60s but we were probably did yes, sir's and no servers and yes, ma'am's and no pms but killing each other. the murder rate with the exception of a few cities are low. i don't know any murderers. [laughter] >> the whole doral hoarding t

marbury is another case. jefferson each is trying, the one who loses in marbury versus madison.resident nixon loses in the united states versus richard nixon. national security and president bush. but they bring it to today. you mentioned a couple times that you live in the real world. >> i tried. that's important for a judge. >> this week there was a treat at the president has had mentioned this yesterday comes to long-winded obama air investigations into popular republican congressman has got to a well-publicized charge just ahead of the midterms by the session's justice department, and to easy wins that went out because there is not enough time. good job, jeff. should a president be able to use his authority to pressure executive or independent agencies to carrying out directors for purely political purposes? >> senator, i understand the question, but i think one of the principles of judicial independence of judges, sitting judges and i am sitting judge and nominee sitting here need to be careful about this commenting on current events or political controversies. i don't thin

that comes from marbury versus madison, interpret them by themselves without any judicial role in cases or controversies. we enforce the words and rights in the constitution. what about rights that are important, we think, but are not in the constitution? explicitly at least. the court has struggled with that. the task that usually is bandied about, whether you call it privileges and immunities or due process, the court will recognize unenumerated rights deeply rooted in the nation's tradition. how do you apply that to particular rights, at what level of generality do you define the right, to figure out whether something is rooted in history or tradition, that has been the battleground in the unenumerated rights cases. i don't think whether it is due -- substantive due process or privileges and immunities there's some new font for courts, font of authority for courts to go around and create a bunch of new rights that we think ourselves are important. i think we need to stick to what the supreme court has articulated as the test for unenumerated rights, deeply rooted in history and tradi

i start every year teaching marbury versus madison which as you know, is a really interesting recusal question arguably and it because john adams at the end of his administration is putting his secretary of state john marshall on the court and the case comes before. there's a question as to whether he should have recused himself that i think he should have. but not merely because he happens to have been picked by one president.all justices are picked by one president or another one and confirmed by the senate.the first question we do in marbury versus madison is the judicial ethics question i don't it's a sufficient basis for a recusal just because you happen to have been nominated who happens to be implicated in a litigation. that might not be enough. >> senator feinstein, we recognize for a correction of the record. >> i appreciate this because i apparently misspoke. it is the estimates of the number of illegal abortions in the 50s and 60s that range from 20,000-1.2 million per year. i said deaths. that is not correct. >> senator hatch. >> you've been at the center of the dc legal c

he also used it in the 2016 law journal article along with marbury v. madison, youngstown and brown v. board of education in the context of a judge needing a backbone. he didn't say it was rightly decided. and he repeated that several times during the hearings. so i don't think he has informed this committee of his real position on that very important case. >> yeah. and actually through a rather clever subterfuge, which i think is a shame, if that's the case. we'll pursue the question further. ms. henzarling, you have made some powerful statements today, perhaps the best of which that there's liberty on both sides of the regulatory equation. as you know, we usually say in politics the polluter, big money side, heavily engaged and then, you're, good luck to the individual -- you know, good luck to the individual victim like hunter lachance here earlier with his asthma. and we very often see studies that are put together that look at the cost benefit of regulation but only look at the cost to the polluter, to the regulated industry. totally omit what happ

marbury versus madison and united states versus richard nixon. that's an important principle. and finally, i would say that the question of who controls the executive power within the executive branch, the vertical question. the president at the top, independent agencies which exist consistent with precedent is distinct from the question of what's the scope of the executive power vis-a-vis congress. on the latter question, the scope of executive power vis-a-vis congress, i've maid cle -- made clear in the context of national security, administrative law, my questions cases unilateral executive rewriting of the law in the criminal law where i've reversed convictions that i am one not afraid, at all, through my record of 12 years to invalidate executive power when -- >> let me ask you this because you've referred to youngstown case in the context of a war and a decision by a president that was immensely unpopular. and the decision or might have been popular, i should say, and the decision of the supreme court which could have been very unpopular at that moment in history. what i

do you believe the cases, marbury v. madison. he said brown v. board of education rightly decided. and segregation cases can come before the supreme court. do you believe that these cases, yes or no, do you believe there were rightly decided? >> senator, i am following the precedent set by the eight justices currently sitting on the supreme court to put it in the terms of justice kick in. it would be inappropriate to give a thumbs-up or thumbs down. >> the distinction between you and taken on these issues. >> roberts, alito, gorsuch. >> that's an excuse you're using with many of my colleagues. none of those nominees had voiced personal opinion that government should refuse these programs. let me give you an example. iran personnel a. benefits to minority owned businesses. he wrote the government should file a brief that the program is unconstitutional. let there be no confusion. he went on i to say and you went on to write that in fact this is my personal opinion. and so you said that then. my question is do you still think a diverse student body is a compelling interest? you opine

those of the four that i have identified marbury versus madison, youngstown feel versus the board of education and united states versus nixon. why? brown the board is the single greatest i have said yes the courts holding that a criminal trial subpoena to a president in context of the special counsel regulations in that case for information to the specific regulations in that case, i have said that is one of the fourr greatest moments of supreme court history. i can explain s how that misunderstanding came up that my views have been consistent. why is this one of the greatest moment? because of those political pressures of the time for judiciale independence? a national crisis and for those that we can foresee you will have a crisis moment on things we cannot even predict it people need to be prepared for that. >> my time will run out very quickly can a sitting president be required to respond to asa penn pen -- subpoena? >> that is a hypothetical question what is the elaboration and going with the justice ginsburg principal not just justice ginsburg along but along with a canon of j

he also did in the 2016 lodge : marbury versus in the context he didn't say it was rightly decided thathe has formed the. and that said that i think that is a shame. you have a powerful statement both sides on the regulatory equation we already see politics and for the that everything that that cost the benefit with regulation than to admit what happened on the other side. and with beneficiary regulation and how they double the side on this agency ranges across the area broad area is protected when congress had no authority to grant that, power to the independent agency we don't that is all we only hear about the regulation of the people the other side.e it is like going outside are going to school in certain days. legally equation. >> i would never argue with you. [laughter] thank you very much to all of you are aware we were there and i spoke of the article of the minnesota bar review in which he argued presidents should be subject to investigation. judge kavanaugh actually there is raising her testimony and differentiating word of a disaster that did not get 51 of the question why mo

picked by one president or another and confirmed by a senate so it's the first question we do in marbury versus madison is the recusal question and i don't think it's a sufficient basis for recusal, just that you happen to have been nominated by a president that happens to be implicated and in a litigation, that might not be enough . >> we recognize for a correction of the record . >> i appreciate this mister chairman because i apparently misspoke. it is the estimates of the number of illegal abortions in the 50s and 60s that range from 200,000 to 1 million or year. i said deaths, thatis not correct . >> senator. >> thank you mister chairman. mister olson, you've been the center of the dc legal community for decades. what is judge kavanaugh's reputation among the lawyers you know of and how is he of in regard? >> i do not know of anyone in the judiciary or in the legal profession in washington dc or anywhere around that is respected more than judge kavanaugh. there are other judges of course who have a reputation which is very, very high. the dc circuit on which judge kavanaugh sits is p

picked by one president or another and confirmed by a senate so it's the first question we do in marbury versus madison is the recusal question and i don't think it's a sufficient basis for recusal, just that you happen to have been nominated by a president that happens to be implicated and in a litigation, that might not be enough . >> we recognize for a correction of the record . >> i appreciate this mister chairman because i apparently misspoke. it is the estimates of the number of illegal abortions in the 50s and 60s that range from 200,000 to 1 million or year. i said deaths, thatis not correct . >> senator. >> thank you mister chairman. mister olson, you've been the center of the dc legal community for decades. what is judge kavanaugh's reputation among the lawyers you know of and how is he of in regard? >> i do not know of anyone in the judiciary or in the legal profession in washington dc or anywhere around that is respected more than judge kavanaugh. there are other judges of course who have a reputation which is very, very high. the dc circuit on which judge kavanaugh sits is p

so i have called that before i've always identified are marbury v. madison, young sounds, brown v. board of education and united states versus richard nixon. and o why -- brown for support f the single greatest. >> why is it rightly decided? >> i said yes, that the courts holding that a criminal trial subpoena to a president in the context of the special counsel regulations in that case for information, a criminal trial subpoena for information under the specific regulations in that case, i said that holding is one of the four greatest moments in supreme court history. so not only what i was, i can explain how that understanding came up. i know there was a news story about that and that's not correct impression of my views. might use have beenno consisten. why wasn't one of the greatest moments? it was one of the greatest moments because of the political pressures of the time. the court stood up for judicial independence in a moment of national crisis. supreme court, we need the supreme court to decide the things we can foresee. one of theup things that's important for the supreme

so i've called that the four i've always identified are marbury versus madison.own steel, brown versus board of education and united states versus richard nixon. brown versus board, the single greatest. >> was it rightly decided? >> i have said yes, that the court's holding that a criminal trial subpoena to a president in the context of the special counsel regulations in that case for information, a criminal trial subpoena for information under the specific regulations in that case, i have said that holding is one of the four greatest moments in supreme court history. so not only what i was -- i can explain how that misunderstanding came up. i know there was a news story about that. it's just not correct impression of my views. my views have been consistently. why was it one of the greatest moments? one of the greatest moments because of the political pressures of the time, the court stood up for judicial independence in a moment of national crisis. we need the supreme court to decide the things we can foresee but one of the things that's really important for the

so i've called that the four i've always identified are marbury versus madison, youngstown steel, brown versus board of education and united states versus richard nixon. and why have i -- brown versus board, by the way -- >> was it rightly decided? >> so, i have said that, i've said yes, that the court's holding that a criminal trial subpoena to a president is in the context of the, the special counsel regulations in that case, for information, a criminal trial subpoena for information under the specific regulations in that case, i have said that holding is one of the four greatest moments in supreme court history. so not only what i was, i can explain how that misunderstanding came up. because i know there was a news story about that. and that's just not correct impression of my views. my views have been consistently why was it one of the greatest moments? it was one of the greatest moments because of the political pressures at the time. the court stood up for judicial independence in a moment of national crisis. that's when the supreme court -- we need the supreme court to decide thin

he also used it in the 2016 law journal article with marbury versus madison, youngstown, brown versus board of education. in the context, he didn't say it was rightly decided and repeated that several times during the hearings so i don't think he has informed this committee of his real position on that important case. >> through rather clever subterfuge which i think is a shame if that is the case. we will pursue the question further. miss heinz or ling, you made some powerful statements, the best of which that there is liberty on both sides of the regulatory equation. as you know we usually see in politics the polluter, big-money side heavily engaged and good luck to the individual victim like hunter with his asthma. we very often see phony baloney studies put together that look at the cost-benefit of regulation but never look at the cost -- to the regulated industry. omit what happens on the other side. could you speak a little more about the liberty side of the beneficiary of the regulation and how they stand up on the political side in terms of the balance of political power on th

he also used it in the 2016 law journal article along with marbury v. madison, youngstown and brown v. board of education in the context of a judge needing a backbone. he didn't say it was rightly decided. and he repeated that several times during the hearings. so i don't think he has informed this committee of his real position on that very important case. >> yeah. and actually through a rather clever subterfuge, which i think is a shame, if that's the case. we'll pursue the question further. ms. henzarling, you have made some powerful statements today, perhaps the best of which that there's liberty on both sides of the regulatory equation. as you know, we usually say in politics the polluter, big money side, heavily engaged and then, you're, good luck to the individual -- you know, good luck to the individual victim like hunter lachance here earlier with his asthma. and we very often see studies that are put together that look at the cost benefit of regulation but only look at the cost to the polluter, to the regulated industry. totally omit what happ

to give to famous examples, justice scalia refused to say whether marbury versus madison was settledating and dramatic start to the hearing. we are going to take a 62nd timeout, you will still see the hearing going on throughout we will have complete coverage throughout the day. keep it here. alright, i brought in new max protein ...to give you the protein you need with less of the sugar you don't. i'll take that. [cheers] 30 grams of protein and 1 gram of sugar. new ensure max protein. in two great flavors. >> back to the opening statements, let's listen in. >> there's a better way for senate to approach this work. this process in my opinion should be about your qualifications, about your character, and perhaps most importantly about your approach to judging your own view of the role of the federal judiciary. it should not be about results in a select number of cases. you are obviously exceptionally well-qualified. even your staunchest critics would not claim otherwise, your academic pedigree, your experience as a practicing lawyer, your experience in government, and your 12 years e