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tv   CNN Newsroom With John Berman and Poppy Harlow  CNN  March 21, 2017 6:00am-7:01am PDT

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how about adding a third? we think there's a bajillion ways to measure success. and whether you have hundreds or millions... we think you deserve the financial freedom to sleep like this at night. this is the new success story. and at t-i-a-a, we're with you. start today at t-i-a-a dot org. . >> announcer: this is cnn breaking news. >> i am wolf blitzer in washingt washington. this is cnn's special live coverage of a vital day of the trump presidency. look at two live pictures, and any moment the president set to leave for capitol hill.
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this comes after a rough 24 hours for president trump as the fbi confirmed his campaign is now under criminal investigation for ties to russia, and also the fbi director comey rejecting trump's accusations that former president obama wiretapped him. on the right side of the screen, lawmakers set to grill the president's u.s. supreme court nominee, and we will tell you what to watch for and what promises to be a rather contentious hearing. happening now, a make or break day for republicans as president trump tries to rally support for the republican health care bill two days before it heads to a critical vote on the house floor. our congressional correspondent is outside the room where the president will be meeting with house republicans. update our viewers, phil, on the very latest. >> reporter: you can see house republican members filing into
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that room behind me awaiting the president. look, the reality is this, this is the ball game and the president is the closer, and the changes have been made that are going to be made and the vote has been scheduled for thursday, and now they need to whip and get the requisite number of votes and that number is 216, and the reality is they are not there, and they have work to do and they have conservatives about the bill that it doesn't go far enough, and we have moderates concerned people in tphae their 50s and 60s are not taken care enough, and they need the president to come in this morning and close this deal. there's some trepidation among leaders i have spoken to that he has not been focused enough or selling like they expected him to do, and that's his job today to close this deal going forward and to make sure as we head to the vote on thursday that republicans actually have the
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votes to pass this because if they do not it's very clear, wolf, health care repeal and replace as it is currently designed will fail if it doesn't pass on thursday. >> going to be a close vote by all accounts. let's talk about how house republicans doctored up the bill and did so last night, as phil just explained. they are hoping the changes will help sway the conservatives who oppose the legislation and moderates who have not made up their minds, and mj, tell us about the changes made to the bill. >> reporter: a huge morning for house republicans as well as for president trump. at this meeting we are going to find out whether these amendments introduced last night will be enough to win over some of the skeptical members who had concerns about the republican obamacare bill. let's walk through some of the main changes that leadership introduced last night. first of all members are getting more flexibility now on
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medicaid. this includes optional work requirements as well as the option to block grant medicaid for states. also states can now no longer expand medicaid so for states that have not already expanded medicaid they can no longer do so, and there was a new york-only provision, and this was squarely meant to try and win over some of the skeptical new york members and it apparently has worked so far, and i should note $75 billion has been is the aside as part of the amendment for tax credits for older people. i want to talk about the last part a bit, and this is a very important provision for winning over the moderate republicans who are worried about the affects this bill could have on costs for some of the older constituents, and the house punted this provision, and the writing of this provision to the senate, and they made the calculated decision this is going to be something the senate will work on and it will not be
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included in the amendment that the house will take up later this week and we will find out later today if this will be enough for the moderate republicans, the idea of punting this to the senate, and president trump is going to play a big role in trying to rally these moderate republicans. >> he's headed your way at this hour, in fact. and thank you. you know, gloria, 216 votes, that's the magic number they need thursday on the house floor to pass the legislation and normally the majority would be 2 218, but there are a few members absent who are serving in the administration. >> this is a real burst test for the new president who ran on the fact that he is a negotiator, and he can get things done, that he knows how to bring people together. now he is going up there on capitol hill, not to convince democrats because they are all opposed to it, but he has to convince republicans to go along
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with him, and the question is whether he uses the carrot over the stick. at this point he will probably say better to be with me than against me, and we have made the changes that you moderates need and we made the changes that you conservatives need, but he has a 37% approval rating, and very high among republicans, of course, and a 37% approval rating and if that rating continues to go down and it affect republicans they will be less likely to jump onboard with him, but they all knees thneed their districts, and they ran on repealing and replacing obamacare. if they can't do this, they will look like they can't ever get anything done and that's what is at stake for them. in the end, he may get these folks to go along with them. >> but they ran in 2010, 2012, 2014, and 2016 with a democrat in the white house, and now they have a republican in the white
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house and they have to govern, and now they have to replace it. the most important part for this and senator santorum can help us on the dynamics, and this is round one, and the art of the deal is the book from trump, and there are complaints from the leadership he keeps saying everything is up for negotiation, and sometimes he has to say no, negotiations are over. let's say they get the votes, and republicans understand we can't fail here, and then it will get changed again in the senate without a doubt, and that's state-wide republicans, and donald trump carried and won most of these districts, and statewide, it gets interesting. and then what does the president do, this is round one, an important test for party discipline and to see how in the weeds and the details this president will get. >> it's all about how a bill becomes a law.
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even if it narrowly passes the house there's a smaller republican majority in the senate, and you lose three republicans, and if all the democrats hold firm and it looks like they will, and it's over. >> that's right. that's why you heard donald trump, he was in kentucky yesterday, name checking some of those senators, mcconnell, he got booed when he came out to introduce donald trump, and he mentioned rand paul who had a smattering of applause, and he knows he has to keep the folks together in the senate and the problem in the senate for this bill that will wind its way ideally through the house if you are donald trump, is the senate is much more moderate, and you have people like susan collins, and then you have people like rand paul who is essentially caucusing with the house freedom caucus now, so how you get all of those folks together on one bill that works and has to go back to the house and also works, but not only that,
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there's also prong two and three, and what this actually looks like if it's passed, will it be a political liability once its passed, if it's even passed. >> rick santorum you served in the senate from pennsylvania, and what do you think? >> the house members are mad and they have every right to be mad, because paul ryan is doing something differently, and that is when the house introduces the bill you put the most conser conservative thing that could pass, and ryan didn't do that, and he thought he could short cut the process and put through a bill he thought could pass in the senate, and conservatives know, even if it could pass it won't, because it will be moved more to the left. that's why conservatives are mad because they know they will get a worse bill in the end because
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we did not start in the right place. what the conservatives are trying to do is pull it back and make it more conservative so they have negotiating room when it goes to the senate. unfortunately, to some conservatives' minds, they won't vote for it. having said all that, conservatives want changes and whether they will get them or not, i don't know. and the bottom line, to john's point, they have to pass this bill. i understand the betrayal they are feeling because i would feel the same way if i was one of the conservatives and they also understand you can't fail and risk this thing blowing up. i think it's, you know, they made some improvements and the amendments that they put forward are good and they strengthen the bill, and i don't know of a single major bill that came before the republican congress we knew we had the votes before
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it went to the floor. this is to make sure that counties can't levy taxes on medicare. it actually prevents tax increases at the local level in new york, that's what this is all about. those are the beautiful things can you do in legislation that is broad, you can put little things in there that don't affect anybody else that gets you votes. >> this is what donald trump campaigned against? >> no, it's a beautiful thing. >> big beautiful negotiation, right? >> that's part of the deal. >> but those are exactly that donald trump said he would tpner have in his legislation which were sweeteners for special -- >> it's the taxpayers in new york. >> the moderate republicans, those are the special interests. >> and the republicans used this very effectively in 2010 and again in 2012, and republicans did okay beneath him in 2012, and in 2014 and 2016, this was the rallying cry for
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republicans, and we are talking about can they pass the bill now. next we have a mid-term election, and the president's first usually goes bad for the president, and it's interesting as we watch it go forward as a policy debate the politics, too, and the president went on the road in kentucky, and look at the speech, your premiums will go down and go down quickly and the cost of drugs will go down and go down quickly, and remember if you like your doctor you can keep your doctor and if you like your plan you can keep your plan, and some of the things said by the president could come back and haunt the republicans. >> look, it's troubling when you see the president, a republican president going to kentucky, a very red state to, try and rally support and votes. rand paul may be a unique character and i think we can all agree to that, but he has been very quiet on this to date, and there's a different chess game that they have to play now from what we had to do in 2009. we lost -- we were worried about
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moderates, moderate democrats, losing moderate democrats and we were less worried about progressives, and they are losing from both sides of the party, and that's hard because you have to walk a very difficult, you know, tightrope there, so when it goes to the senate, there are a lot of moderates who already have been out there on medicaid and planned parenthood, and you have conservatives concerned about cost. it's going to be tricky, and it's going to be a long road, and obamacare took eight months to pass and there are going to be a lot of ups and downs in the months ahead. >> the president campaigned repeal and replace obamacare, and he really wants this and i think he wants it in large part so he can get out to other issues like tax cuts, trade, this huge infrastructure bill he wants, but he can't do anything, he says, until this is resolved. >> that's true, but you know what has not come up in this conversation at all? what the bill will do?
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what about 24 million people losing their insurance. >> that's not going to happen. the cbo estimate is a joke. 5 million people will drop off medicaid because they are not funded. >> the congressional budget office came up with an estimate of 14 million would lose insurance over a year. >> how about the enormous tax cut for wealthy people in the united states, and it will have tremendous relevance to peoples' lives. as we discussed these tactics, i just think that's something that we ought to keep in mind. >> that's the reason why a number of republicans in the senate are opposing the bill, medicaid, the medicaid cuts. that is the challenge that is really hard to overcome. you have 11 republican governors that expanded medicaid in their states that have real impacts,
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and block grants do not work and they prejudge how many people should be on medicaid and that does not work. there will be millions of people without health care. there are substantive questions, and i agree with you completely that need to be focused on, but to the credit to a number of republicans in the senate and in the house the reason they are opposing is because of substantive issues. >> and the flexibility we are giving to the states, rhode island's program was given a broad waiver and they cut costs and reduced -- they have run an efficient program, and indiana, and several others have done so, and block grants do work and the most successful things republican did was the 1996 welfare reform bill and we did block grant, and we put time limits -- >> let me interrupt for a second. the president's motorcade arriving up on capitol hill to meet with republicans to try and get them on board.
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>> the block grant for welfare was set in 1996 and has not been increased since then. why? because states have been able to reduce the program, and that's what we need. we need to drive innovation and it's never going to happen in washington, and republican governors are wrong on this because they are worried their money. >> you did it with a democratic president. >> yeah. >> and when you do big things like this, you know you are going to have to fix it and you know you will not be perfect, and even with the best intentions you get things wrong, and wouldn't it be best if somehow you could have some political consensus? >> it would. here's another question -- >> not with this environment. >> that's the point. >> people adjusted to obamacare, whether they like it or hate it they know what it is, and in some states the premiums have gone up dramatically, like in arizona, and dr. price, the head of hhs has promised you will not
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be financially worse off as a result of this new bill and i think this is where the rubber meets the road. voters out there and you are talking about their health care and not some abstraction, it's their family and pocket book and sickness if they get sick, and they will held republicans to the standard, just like they held obama to if you like your doctor you can keep your doctor, and if you call it trumpcare or ryan kaeur ryancare, or whatever, and when the smoke clears and if this gets passed, they will own it. >> obamacare was signed in 2010, and it went through a court challenge in 2012 and a court challenge in 2016, and however this plays out we are looking down the road, and it's not just the people that has to get used to it, and it has to be
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litigation and -- >> you think it will be challenged? >> yeah, that's just the nature of the game. and democrats and consumers want to challenge it, definitely. >> even the republicans are saying this is phase one and there's a phase two and three, and all of those phases depend on some consensus. >> and there's going to be something that requires -- >> but senator, you know the senate, it's going to get 60 onboard in phase three? >> yeah, it all depends on what happens in phase one. >> let's say phase one passes. >> okay, then there are things that will help the system work better now that a new system is in place, and i would think that you will find some bipartisan support, and some are really common sense things. >> you think eight democrats will support it? >> i think it's possible. >> the argument they make, don't
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believe the cbo numbers because they don't take into account phase two and phase three, but what if they pass phase one and phase two and three don't materialize, and there will be court challenges to phase two which is administrative changes and rug legulatory changes. >> phase one does save money, and it's lower budget numbers. the cbo estimate, other than the widely wrong estimate of how many people will drop out of the insurance market because there's no mandate, or medicaid, they over kpapbexaggerate it. >> the cbo cost savings was underestimated, and it was overestimated how many people would be left -- i think that's hard to swallow. >> one is an analysis of what the government spending is going to be based on policy, and the
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other is what is the up take, what is the up take on buying incentives because of costs and market versus mandates, and they always score mandates higher than markets and that's why the numbers are bad. >> what if it fails on thursday? >> it's a big problem for the president, and it's a big problem for paul ryan. i think his speakership might depend on it. >> no chance that's going to happen. >> okay, and i am not predicting failure either, by the way, because i think when you are -- what normally happens in these situations having watched these votes for many years is you have people sitting in the back of the chamber who wait until they see if their vote is actually needed, and if their vote is needed they will vote with the president and if their vote is not needed and they don't want to vote for it for all kinds of reasons they won't vote for it. you will have people hanging back and watching the vote. >> there will be 217 or 18, and
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they will figure it out. >> and it's hard for paul ryan without thinking he is going to have the 216 -- >> the way these things work, paul ryan will never allow this to lose. if they think they will lose, they won't bring it up. it's never going to be -- >> yeah, but even if they cancel the vote, that's a setback. >> it's certainly a setback but allows them to keep pushing on it. seems to me based on how these things work, there will not be a negative vote. >> it's fascinating, and i agree, the speaker can do the math and the president will go and say we cannot fail, and they will get something through the house is my bet and the question is the next two steps there. the interesting part, again, this president is central to the process. this is not his signature issue. this during the republican primaries, the president came this way to repeal and replace because he realized it was in
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the bloodstream of base republicans because he had to be there, and in the beginning of the trump campaign, he saw the energy for it out on the road as he travelled and saw the energy for it on the debate stage. he would rather focus on trade and economics and immigration, but he decided, the outsider president decided to accept paul ryan and mcconnell's schedule. >> when we get to recess, and there are supporters of obamacare and the people that feel they will use health care, and they are doing protest, and whether they come back and president trump wants to still use the political capital on this, and that's going to be a big question on that. >> it's so interesting, because the order in which you choose to legislation as a new president is so important, and they chose this, as john is saying. they chose this as number one. i might have chosen something like infrastructure, because they would have been able to get democrats onboard and pass
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something. but every president has this question of what do you do first, because that first thing can very often become your signature. >> first, you want to do hard stuff first and not easy stuff. >> but you want to win, right? trump wanted to win. >> you have reconciliation, and there's a window under the budget window to do reconciliation, and you have this window and so they had to do health care first, and it's hard and whether trump has gotten a whole lot of momentum, their hope was there's a lot of momentum, and it may not be what they would have liked. >> this is a slap in the face to obama, right? donald trump ran a very much anti-obama, and nothing like setting the course for the presidency if they are able to do it, ripping out the main part or the main guts of obama's legacy by repealing obamacare.
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>> when the republicans argue obamacare is on its deathbed right now. if they do nothing to change it within a year or two, it's over, the premiums will skyrocket and the deductibles will skyrocket and people will not have the opportunity to get health insurance. your response? >> it's not factually true. the uninsured rate is at the lowest rate in history, right around 10%. this administration put out information that people who received tax credits, almost 85% of the people did not see any increase in their premiums. it's important for democrats to acknowledge if hillary clinton would have been elected there are necessary changes that need to be made to obamacare. there would have been changes that would have taken place, but that doesn't mean you destroy the entire health care bill that is now health care in america, and that's what the republicans
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are trying to do right now. >> the president of the united states is up on capitol hill right now, and he is going to be going into a meeting with republicans to work this issue of health care, repeal and replace obamacare. you see members of the secret service and the entourage getting ready to walk into this meeting. we will have coverage of that. there's the president right there. let's listen. >> can you get the votes, mr. president? >> i think so. >> you think you are going to get the vote, a reporter shouted, and he said i think so and he continued. >> aren't you supposed to be a little more confident? >> no. >> it was his first go around. >> the speech he delivered last night in louisville was supposed to be a health care rally, if you will, but it was only, what -- he only spoke about five minutes for health care, which is suggesting to some that he wants to get this over with so he can move on. >> it was pretty much in the
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middle of the speech, and a lot of the speech was, i think, you could have heard it on the stump a year ago, and it was rehashed talking points from his inauguration as well and ended with the whole idea of making america great again and safe again. there have been, i think, people concerned about whether or not he's in the weeds on this and whether he is all in on this, and you heard early on, paul ryan last week say he's in there and twisting arms and trying to make deals and we will see if that works. i think it was significant that mitch mcconnell got booed yesterday. that's exhibit a about trump's power versus these other folks. >> the other big story we are following this morning, the supreme court nominee, neil gorsuch will start answering questions from senators, republicans and democrats. a half hour for each senator to ask a question, and gorsuch will
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respond. our cnn supreme court reporter is up in that room, and set the scene for us. >> reporter: you know, wolf yesterday these hearings were about merrick garland. the democrats were furious he never got a hearing and today we think we will turn to the issues and neil gorsuch, and one issue that will for sure come up is abortion, and trump said he wanted to put pro-life judges on the bench, and that allows them to go hard on gorsuch on that issue, and they will ask him about his independence from trump, and gorsuch never in the public responded to trump's criticism of judges. we will see that, and maybe questions on the executive order, and finally, they will go after whether he favors the big guy over the little guy. it's going to be a long hearing, nine hours, they say. >> nine hours today and then more tomorrow. the chairman, chuck grassly, says the senators will have a half hour to do q & a with
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gorsuch today and then tomorrow a second round, 20 minutes each, and two days of a very important hearing. jeff tubin, this is incredibly important. one of the most important things a president could do is select nominees to serve on the praerpl cou -- supreme court. >> neil gorsuch is a lifetime appointment. >> in the fall of 2040, with tiffany trump and malia obama is having their first presidential debate, he will be on the bench. stevens served from 1975 until 2010. that's how long these tenoures are.
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we think we know about some of these things, but we can't predict what they will be thinking about or dealing with in 2040, and all we know is that the same people will be there in charge. >> yesterday he was able to portray himself as every man, but the democrats are going to come after him on the fact that they think he is more of a friend of corporations rather than the little guy. it will be interesting to see if he can keep up that same persona that he had, and the way he presented himself to the american public yesterday was a man who puts on the black robe and sometimes even trips in that black robe, and he's from the west and comes from a pioneer stock, and i think it's going to be up to democrats to try and throw him a bit off his gain to see what he's really about, and we might get a clue as where he is at on equality and due process. >> and dan is with us, and you have got some advice for anybody that has to go through the confirmation process.
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go ahead. >> that's right. this book was put out by the national academy of public administration that i formerly led and it's a blueprint for nominees as they go through the process, and it covers the prenomination process, and the post nomination process and the confirmation process. it can be very intimidating -- >> he's arriving there now, and meeting with the senators, judge gorsuch, but go ahead. >> it could be intimidating and it could help familiarize them with how the process works. >> he met with all the u.s. senators privately, and even the democrats have come out impressed. >> that's important to do. in a key to a successful nomination is preparation, preparation in getting your paperwork in, and preparation in meeting with the senators and hearing their concerns, and it's also preparation for the hearing as well.
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>> but gloria, no doubt hovering over this is the failure of the republicans to even allow merrick garland an opportunity to appear before the senate judiciary committee? >> it's infecting the whole thing. i think that you heard dianne feinstein right out of the box say yesterday, look, i wish we had merrick garland, and the democrats feel this was a seat that was robbed from them, period. it was taken away and it should not have been and it was unfair, and they are going to say it at every opportunity. now having said that, judge gorsuch is completely qualified and everybody knows it. he is totally and completely qualified and he's exactly the kind of nominee you would expect from a republican, period. this is what elections are about, and the democrats are going to disagree with some of
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his rulings and the way he presented himself on some of the rulings, of course, and we expect that. there's an infection which is that we have not gotten over the fact that mitch mcconnell wouldn't let our nominee get this kind of a hearing, period. and clearly it's going to affect votes, no doubt about it. >> gorsuch in the seat and the photographers getting the photo-op and getting the pictures they all want, and the chairman of the committee will bring today's session to a gavel. the ranking democrats, dianne feinstein from california, and there are 11 republicans and nine democrats and they will have half an hour, and they may not use that entire half hour but they will have a half hour, john, and the issues before -- a lot of the questions they ask, he is not going to answer. >> no, he is not going to
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answer. i am told by people involved helping him, he was very impressive. when they tried to break him, and he is prepared to say nice things about merrick garland and he will not step in the politics of that but will compliment him. >> keep in mind also, he knows so much more constitutional law than any of the senators, so the idea that you are going to stump him or tell him something that he is not familiar with or not prepared for, that is not going to happen. >> he is prepared to say he disagreed with the president. he will be careful and won't beat up on the president that nominated him, and everybody should be careful in criticizing a judiciary. >> his mother once sat in that seat, and she was grilled as the epa administrator under ronald reagan, and this man is super
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prepared to make it seem like he is answering questions and not to alienate democrats. >> if he is asked about travel ban 2.0, constitutional, not constitutional, he will respond? >> that's an issue that might come before the court, i can't address that. >> i suspect we will be hearing that a lot. >> get ready. >> two or three versions of that. >> here's the chairman, senator grassl gra grassly.
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he also got some support, some other witnesses spoke in his favor, including jeffrey, a well-known democratic lawyer who praised him and had high words for him. >> a big surprise to a lot of people in the washington legal communities. the former solicitor general under barack obama, very active in fighting the bush administration on guantanamo, but he embraced judge gorsuch, and that's a sign of which way the wind is blowing. >> the whole question is not whether he is going to be confirmed, he's going to be confirmed, and the question is whether he will be confirmed going through the process and getting 60 votes and that means eight democrats will side or whether they are going to pull the knack clenuclear option bec can't get the eight democrats to vote for him.
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i am of the opinion, that's a very open question right now. democrats -- there are democrats here that can maybe lend an ear on this. given the vitriol that is out there against trump right now. >> welcome back. >> go ahead. >> good to have you back, and i am sure you are glad to be here. good morning, everybody. i would like to welcome everyone, and especially our nominee, as i just did. this is day two of the supreme court nominee's hearing. we have a long day in front of us, so we'll immediately turn to members' questions. it's my intention to get through all members first round of questions today, so it's important that we all stick to our time limit so we can stay on that schedule. i realize that ten hours is a long time for you to sit there and answer questions for 20 of
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us, so i am going to defer to you when you might need a break. in the meantime, i would anticipate a break about 30 minutes for lunchtime, and i hope for the members of the committee, i have not made up my mind on this yet but we do have a vote scheduled at noon and -- sorry? okay, we have two votes at noon, so it might be appropriate to use that period of time for our lunch break. i will make a decision on that later on. so with that understanding with you and to accommodate you, because you are the person that has to sit there and answer questions, so whatever your needs are, you let us know. i started yesterday morning, judge and audience, with justice
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scalia's comments that our government of laws and not man is the pride of our constitutional democracy. our democracy requires judges to let the peoples' elected representatives do the law making. you, judge, said that justice scalia's great accomplishment was to, quote, remind us of the differences between judges and legislators, end of quote. legislators, in other words, consult their own moral convictions to shape law as we best think it to be, but you said that judges can't do those things, rightly so from my point of view. our constitution is also a charter of liberty. justice scalia said that our constitution guarantees our liberties primarily through its structure, and that happens to be the separation of powers. you said, judge, that much of
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the same thing, and i quote you. what would happen to disfavored groups and individuals, end of vote, if we allow judges to act like legislators? quote, the judge would only need his own vote to advice the law willy-nilly, end of quote. and the system requires an independent judiciary made of judges respectful of the other two branches, but not beholden to them. judges must be equally independent of the president that nominates them and us senators who confirm the same judiciary members. let's start with the independence from the executive. no one, not even the president, is above the law. one of the most remarkable
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things about your nomination is the broad bipartisan support that you have received. you've learned great praise from individuals who are not staunch supporters of the president but who strongly supported your nomination. yesterday we heard from one of them, president obama's former solicitor general said you, quote, will not compromise principle to favor the president. in 2006, former colorado senator salazar, a democrat, said that you have, quote, the sense of fairness and impartiality that is a keystone of being a judge, end of quote, and legal commentator jeffrey rosen similarly praised you for your independence. so let's start with my first question, i would like to have
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you describe in any way you want to what judicial independence means and specifically tell us whether you would have any trouble ruling against a president who appointed you? >> [ inaudible ]? >> turn your microphone on. >> sorry. that's a softball, mr. chairman. i am heartened by the support i have received from people who recognize that there's no such thing as a republican judge or a democratic judge. we just have judges. when i think about what judicial independence means, i think of byro tphfrpblgt whin w
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think of his fierce independence, and he said i have a job, and people asked what his judicial philosophy was, and i give the same answer. i decide cases. it's a pretty good philosophy for a judge. i listen to the arguments made, and i read the briefs that are put to me. i listen to my colleagues carefully, and i listen to the lawyers in the well, and this experience has reminded me what it's like to be a lawyer in the well. it's a lot easier to ask the questions, i find, as a judge, than to have all the answers as the lawyer in the well. so i take the process, the judicial process very seriously, and i go through it step by step and keeping an open mind through the entire process as best i humanly can, and i leave all the other stuff at home.
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i make a decision based on the facts and the law. those are some of the things judicial independence means to me, and it means the judicial oath i took to administer justice without respect to persons, and to discharge impartially the duties of my office. it's a beautiful oath. it's a statutory oath written by this body. that's what judicial independence means to me. happy to talk about the separation of powers, too, if you would like, mr. chairman, which you referenced in there or i am happy to answer another question, it's entirely up to you. >> you made clearer not afraid to fulfill your role independently, and you just emphasized that, and you have ruled on cases where congress has overstepped its bounds, so i
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think you can maybe speak about the separation of powers, but at the same time maybe you could give me a couple of your cases that demonstrate your commitment to that independence of the executive branch of government. >> sure. on the first point, you know, i have decided, as i noted yesterday, over 2,700 cases. my law clerks tell me 97% of them have been unanimous, and 99% i have been in the majority. they tell me as well that according to the congressional research service, my opinions have attracted the viewest number of dissents of my colleagues over the last ten years, and they speculate whether that's because i am
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persuasive, or i believe in collegiality. i don't know why that has to be a choice. and where i have dissented, i as likely to dissent from a democratic colleague as well as a republicancolleague, and that's because we have no republican or democrats judges. i think luis might argue for the eighth, because in that case the supreme court did not like a procedural precedent that as a panel we were bound to follow, and we decided on the merits as the court instructed, and 8 out of 8.
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on the separation of powers. it is, mr. chairman, the genius of the constitution. madison thought the separation of powers was perhaps the most important liberty guaranteeing device in the whole constitution. and this is a point of civics that i do think that maybe is lost today. how valuable the separation of powers is. you have in article 1, the peoples' representatives make the law. that's your job. and i don't think it's an accident that the framers put article 1 first. your job comes first. you make the law. article 2, the president's job is to faithfully execute your laws. and our job, article 3, down at the bottom, is to make sure that the cases and controversies of the people are fairly decided. if those roles were confused and
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power anogomated, the founders were afraid that would create tyranny, and you can see why. you can't get rid of us. life tenured. it only takes a couple of us to make a decision, or nine, or 12, depending on the court. it would be a pretty poor way to run a democracy. and at the same time with respect legislators may not make great judges because they are answerable to the people, and when you come to the court with a case or controversy about past facts, you want a neutral, rigidly neutral fair decision-maker, and you want somebody that will put politics aside. the separation of powers, i
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don't think has lost any of its genius over 200 years. in fact, it has proven it. >> thank you. i have heard my colleagues and people not in the senate say now more than ever we need a justice that will be independent of the president who nominated him or her, and i would like to ask about your nomination and your independence. a lot has been made about the list of judges, then-candidate trump proposed as nominees, and to me it was the most transparent that we have had in history, and we didn't have secretary clinton give out such a list, and of course you weren't on the first group that came out, and otherwise added later, so i am curious when did you first learn that you were on candidate trump's extended list?
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>> mr. chairman, you are right, there were two lists, as i recall, over the summer. i was not on the first list. i remember having breakfast one day with a friend, who may be here, brian? there you are. you remember this. >> i do. >> we were having breakfast one day, and he said neil, you are not on the list. i said, you are right. i am not on the list. he said you should be on the list. i said i love my life in colorado. i wouldn't change a thing. i am a happy man, i have a loving wife and beautiful home and loving children and a great job with wonderful colleagues and i'm a happy person. walking away from breakfast, and i get an e-mail from brian saying there's a new list, and you are on it.
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there's a new list and you're on it. i don't know about that. i don't think -- you didn't know. i don't think -- we were all surprised. anyway, we are where we are. >> okay. tell me about the process that led to your nomination. did anyone ask you to make any promises or assurances at all about your view on certain legal issues or the way that you'd rule in certain cases? >> senator, i think you'd be reassured by the process that unfolded. i try to live under a shell during the campaign season. watch baseball and football. go about my business. but i did hear lots of talk of litmus tests from all around. it was in the air. and i don't believe in litmus tests for judges. i've written about that years
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ago. i wasn't about to become party to such a thing. and i am here to report you should be reassured because no one in the process, by the time i was contacted, was an expression for interest for a potential interview, no one in that process asked me for any commitments or promises about how i'd rule in any kind of case. >> and that's the way it should be. so we've just discussed your independence from the president, but there's also independence from the legislative branch. it's odd that some of the same folks who will claim that you're not independent from the president will turn around and try to extract from you promises and commitments before they pass judgment on your nomination. the irony, of course, is that extracting commitments during the confirmation process is
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exactly what would undermine your opinions as a judge. one way that they'll do this is asking you about precedent. so let's talk about that. for starters, i've got a book here that you co-wrote, an 800-page book on precedent. your 12 co-authors included judges from across the ideological spectrum, such as bill prior who was also on president trump's supreme court list and diane wood who was reportedly on president obama's list. you've also touched on the value of precedent in speeches that you have given oir r in your opinions. for instance, in the speech you gave honoring justice scalia last year, you said this. quote, even when a hard case
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does arrive, once it's decided it takes on the force of precedent, becomes an easy case in the future and contributes further to the determination -- determ nancy of our law, end of quote. especially if more recent opinions have called into question the rationale of the original case. but you've also suggested that there may be circumstances where it's appropriate to revisit precedent. specifically you wrote that it may be appropriate to reconsider a decision where it has become a, quote, precedential island surrounded by a sea of contrary law, end of quote. so there may be times where it is appropriate to reconsider certain decisions, especially if more recent opinions have called into question the rationale of the original decision. i think all of us would agree,
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for instance, that brown versus board of education which finally overruled a repugnant separate but equal stand is the textbool example of this. so with these things in mind, i'd like to explore the approach you'd take to supreme court precedence. could you tell us what you believe is the value of precedent in our legal system? >> absolutely, senator. if i might, mr. chairman, go back just a moment to promises. i have offered no promises on how i'd rule in any case to anyone. and i don't think it's appropriate for a judge to do so, no matter who is doing the asking. and i don't because everybody wants a fair judge to come to their face with an open mind decided on the facts and the law. one of the facts and one of the features of law you have to
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decide it on is the basis of precedent as you pointed out. for a judge, precedent is a very important thing. you don't go reinvent the wheel every day. and that's equivalent point of the law of precedent. we have an entire law about precedent. a law of judicial precedent. precedent about precedent if you will. that's what that 800-page book is about. expresses a mainstream consensus view of 12 judges from around the country appointed by, as you point out, presidents of both parties, great mind ss ss. justice breyer was kind enough to write a forward to it. it makes an excellent door stop. and in it we talk about the factors that go into analyzing precedent. any consideration of precedent. there are a bunch of them. you've alluded to some themp. the age of the precedent. the reliance interest that built
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up around the precedent. has it been reaffirmed over the years? what about the doctrine around it? has it built up? shored up? or has it become an island as you point out? those are all relevant considerations. its workability is a consideration. can people figure out how to abide it or is it just too confusing for the lower courts and their administration. those are all factors that a good judge will take into consideration when examining any precedent. you start with a heavy, heavy presumption in favor of precedent in our system. alexander hamilton said that's one important feature. i think it was hamilton. said one important feature of judges, if we're going to give him life tenure, and allow them that extraordinary privilege, they should be bound down by strict rules and precedence. francis bacon called precedent the anchor of the law.
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so you start with that heavy presumption in favor of precedent. you consider those factors in that light. and, yes, in a very few cases, you may overrule precedent. it's not an exorable command the supreme court has said. that's the law of precedent as i understand it and is expressed in that book with my very highly respected colleagues. >> there's a lower court judge, you're bound by not only supreme court precedent but as you demonstrated, the precedent of your own court, but as a supreme court justice part of your job will be to decide when existing supreme court precedent need not be reconsidered. how will you decide when you revisit existing precedent? >> i don't think the considerations change. it's the same analysis that i would have as a supreme court
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justice, if i'm fortunate enough to be confirmed, that i have what i'm considering circuit precedent as a circuit judge. it's the exact same process. the exact same rules apply. >> this is the 14th supreme court hearing that i've participated in so i have a pretty good idea of some of the questions you're going to get today. you're going to be asked to make promises and commitmented about how you'll rule on particular issues. now they won't necessarily ask you that directly, for instance, how will you rule on this issue or that issue. instead they'll probably ask you about old cases, whether they were correctly decided. of course, that's another way of asking the very same question. they know that you can't answer, but they are going to ask you anyway. i've heard justices nominated by
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presidents of both parties decline to answer questions like these. that's because, as the nominee put it, quote, a judge sworn to decide can offer no forecast, no hints for that would show not only disregard for the specifics of this particular case, it would display disdain for the entire judicial process, end of quote. now you probably know that's what justice ginsburg said at her hearing. and it's what we call the ginsburg standard. the underlying reason for this is, of course, is that making promises or even giving hints undermines the very independence that we just talked about. i'd like to ask you if you agree with what i just said. >> i do, mr. chairman. >> so let me ask you about a couple of supreme court cases.
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in heller, the supreme court held that the second amendment protects an individual right to bear arms. if i asked you to tell me whether heller was rightly decided, can you answer that for me? >> sir, i'd respectfully respond that it is a precedent of the united states supreme court. and as a good judge, you don't approach that question anew as if it had never been decided. that would be a wrong way to approach it. my personal views i'd also tell you, mr. chairman, belong over here. i leave those at home. mr. kochel said yesterday what he wants is a fair judge. that's what i wanted as a lawyer. i just wanted a judge to come in and decide on the facts and law of my client's case and leave what he had for breakfast at the breakfast table. and part of being a good uch j is coming in and taking precedent as


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