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tv   Supreme Court Nominee Brett Kavanaugh Confirmation Hearing - Day 3 Finale  CSPAN  September 7, 2018 8:12am-9:00am EDT

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please come home as soon as you can hear and i knew that tone in her voice, child protective services is here. i'm asking myself, am i going to live to see the next day? really, that is what is going through my mind. am i going to live to see the next day? because she if that ever in point shows a moment alone with me, and i make it through whatever happens when i get home and talk to them, lord knows what she's going to do. >> zachary would sunday night at eight eastern on c-span's q&a. >> more of the coverage from day three of supreme court nominee brett kavanaugh. the committee continued the hearing after a short break.
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>> [inaudible conversations] >> i understood senator blumenthal might have a unanimous consent request with regards to some documents, if he has that when he comes back in we recognize him. senator hirono, , i believe you are next. >> i believe i am. >> i'm sorry. >> go ahead. that's fine. >> senator hirono and then
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senator sasse. >> thank you. >> i'm sorry, i thought we -- >> i i beg your pardon. senator hirono, you are recognized. >> any time that it not use 16 minutes i would like to at that time go to senator booker. judge kavanaugh, as you know this june the court delivered a blow to millions of public sector workers with its decision in janus versus ask me. in a fight for decision, five of the justices overturned decades old precedent cut case called abood the workers around the country depended on for fair salaries and basic rights. the janus decision is importanth because it shows high denomination fits in a larger
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campaign that groups like the federal society and heritage foundation have been waging for decades, decades. the goal is to undermine most of supreme court precedent that protects workers, women and everyday americans. in janus come five justices overturned abood because they wanted to. those were justice kagan's words, not mine. all of the five justices went to the factors for overturning precedent, it identified another with them for two as very strong reason for not following president and the recent was quote fundamental free speech rights. the five justices said the rule for following precedent also not stare decisis apply to brass least force, least force of all to decisions thatsi wrongly deny first amendment rights. sense of the court is saying the first amendment rights takes
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precedence. why is this important? because ofgh a larger political campaign that he mentioned earlier. with the help of these groups this up in court us justice has been quote weaponizing the first amendment in a way that unleashes judges now and in the future to intervene in economic and regulatory policy in court. back just this past to the first amendment was used to advance a political agenda against workers and women self and reproductive rights. judge kavanaugh come decree with the five justices in janus? >> that's a precedent of the court that of course because it's one of the recent cases i can't, on whether i agree or disagree with it but it's a precedent that is now part of the body of the supreme court case. >> and, of course, should you get on the supreme court you can either follow that precedent or
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overturn it. basically the court of janus said, came up with a very strong reason for overturning even decades of precedent if first amendment rights are at stake. so based on the answer you just gave me then that kind of rationale would also be the precedent of the court now. so the supreme court sets precedent purcell takes is a five votes to overturn precedent as happened in janus, five votes. and i'm particularly troubled that the five justices in janus claimed it did not matter that public sector unions have relied on the abood case for decades. yesterday when you talk about the role of precedent you talked about used words such as people rely on the precedent, whether it creates stability, there's predictability, but the five justices in janus, the fact that public sector unions have been
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rely on the abood decision for 41 years didn't matter. so five justices also claim that the good overturn abood as well as, a well-established precedent because public sector unions were on notice, quoting the court, notice for years recording this court misgivings about the abood case pipit s justice kagan explained, the so-called notice was actually justice alito's secure campaign to reverse abood. so i won't go over secure campaign but suffice to say that justice alito made it very plain to potential litigants out there who want to undo the abood decision, recently said come on over becauseed i want to be in a position to be able to reverse abood. and the only reason and an early case called fredericks said that abood was not overturned was because of the death of justice
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alito. and then after that, justice gorsuch was confirmed and justice gorsuch was going to provide the fifth vote whereas in the previous vote because of the death of justice scalia, the earlier case of fredericks ended in a tie. within a long, justice gorsuch and the fifth vote was there and abood is overturn an janus now the precedent case. so to the extent that the court in janus said by the way, all you litigants, all you people t there who are relying on this precedent, you have notice that we were thinking of overturning this case. do you believe that is justice should be able to make it easir to overturnma or even, overturn even well-established supreme court precedent by simply giving notice that he or she has concerns about that precedent because that is exactly what justice alito get?
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>> senator, i think the factors that the court considers is, whether the prior decision was grievously wrong, whether steeply inconsistent with subsequent precedent that is developed aroundth it, the real world consequences, the workability of the decision as well as relied -- >> on the other hand, judge kavanaugh, how can you call a 5-4 decision as reflective of the prior decision having been grievously wrong? not to mention that in the case that came before janus ended in a four-four-five because of the death by scalia so by one vote. the court looked to the notice provided by a justice as one of the justifications for overturningfo this 41-year-old precedent. my next question is dois you thk the prior writings of some
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before becoming a supreme court justice can count as notice that americans cannot rely on the predictions entrenched in well-established precedent? for example, someone like you did some writing that questioned a precedent, without suffice as notice for the supreme court to overturn precedent? >> senator, i think the factors of the supreme court considers in applying stare decisis are established. you look at the prior decision, whether it's a grievously wrong, the consistent with the real world consequences of the reliance interests, and i resent that you disagree with how those factors were applied and justice kagan of course in dissent disagreed with how they were applied. and i understand speedy it was a split decision and suddenly we're talking about strong
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reasons being the first amendmently rights which as justice kagan's it is now being weaponized and you can see the trend of the 5-4 decisions that weaponized is first amendment or seen that. the court said with a first amendment rights are concerned, that stare decisis applies with the least force. going on. basically the concern i have about the reasoning in the janus court is we'll see many more 5-4 decisions where precedent can be overturn if they justice has given notice as justice alito did, or if they first amendment rights are concerned. let me turn to the issue of the guns. you were asked some questions about this, about your position will on haller to make. the brennan center for justice report as of august 20, 2010, outside groups had spent almost
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3.5 million to campaign for your confirmation and i think we've all seen those, by contrast groups opposing or nomination have spent less than a quarter of that amount if one of those groups spent hundreds of thousands of dollars to get you confirm to the supreme court is a national rifle association. the nra makes it clear in theirt commercials what's at stake with your nomination. back they highlight that there are currently four justices who favor gun control and four justices who oppose gun control. they then explain president trump chose brett kavanaugh to break the tie they urge your confirmation for the out that the viewers access to guns depends on your vote, justice scalia. so you mentioned earlier the supreme court had in the past concealed weapons, guns in schools, machine guns could be banned but you can provide that
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fifth vote to undo these earlier supreme court precedence, so why do you think, this is part of their at. you're right to self-defense depends on this so. this is based on, this is part of the nra's million-dollar campaign to get onto the court. why do you think is spending so much money to ensure that you get confirmed as aon supreme cot justice? >> senator, a lot of the ads for andd against me, editing speedye i'm asking specifically about the nra ad. why do they think you are going to provide the crucial fifth vote to come that obviously think you are on the page. >> senator, there are a lot of ads by groups against and for, that's the right of people to express their views. i understand that, and i'm an independent judge and i for 12 years have a record of being an
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independent judge. >> well, obviously the nra does not think there's a independent when it comes to gun legislation because they are spending a lot of money to tell everybody you are going to buy that crucial vote to their liking. so you know, i think these ads speak for themselves, why they think you are the critical person to be on that court. i want to follow up one more thing, something you don't send it to feinstein regarding your views on guns. he seemed to indicate your view of supreme court precedent is that a type of gun could not be banned and oco to hear what you said yesterday, if a type of firearm is widely owned in the united states. so did you mean to say widely owned as opposed to widely used in your response to senator feinstein's? >> i think i referred to the dangers and unusual test that the supreme court has articulated, and prefer to out i applied the test in my heller opinion. >> you did say that if the type
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of firearm is widely owned in the united states you would deem any limitation on widely owned guns to be unconstitutional. so is it your view that if a large enough number of people downloaded designs for 3-d guns and printed them and, therefore, they own them, that the state and the federal government could not abandon? because now they are widely owned. >> senator, i can't talk about hypothetical case. >> i think that's another reason that the nra is so adamant that you get on the court. i'd like to see the rest of my time to senator booker. >> i understand, senator blumenthal, do you have unanimous consent request to offer some documents? >> i do, thank you very much, mr. chairman. i'd like to enter several letters from outside organizations into the record. the organizations have boys some of the real world consequences of judge kavanaugh appointment,
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and they come from the national council of jewish women, the national, there's faith organizations and communities, the national center for transgender equality, the public health association and the center for public representation. i ask that they be made a part of the record. >> without objection. the chair recognizes senator sasse. >> thank you, mr. chairman. judge, you're in judge garland homestretch. some of us are way beyond bedtime. i stuck out and get a good night call with my kids my seven-year-old was so groggy i guess what is up to and i told and he said he was curious if you are scared of poisonous spiders. i will protect you from having to answer that question. we would ask you about your phobia owes -- will ask about your phobias. i want to askte about the first amendment. i'm worried about the liberal project in the grandsons. i think what's happening on campus is right now is really dangerous and what happens on campus will probably not stay on
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campus. we've got lots of data that shows high school kids don't know our history, don't know basics of its people in the most frightening numbers is americans under 35 -- civics. 41% tell pollsters they think the first amendment is dangers because you might be able to use your free speech just is something that else's feelings. i would love to explore where we are in the first amendment. can we goo to history first? what's the core purpose of the first amendment? why do we haven't? >> we protected so individuals can express their views in speech and in writing. the ideas that there's no such thing as a true idea that's dictated from above, by the government, and that individuals can say what they think in speech, in writing, and help, it's both an individual idea that they can express their own opinions and their own beliefs. and it's also, i think there's
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also an idea that truth develops to debate and more informed judgment, , the more perfect unn develops to debate with different perspectives that are shared, and a lot of, a lot of ideas begin as unpopular ideas and then people, , they take hod overtime and it's important to protect the building of people to speak both for the individual rights and for the idea of the betterment of society overtime to debate and improvement more perfect union. >> tanks. i'm encouraged. i was hoping we would hear both sides of that. when you first amendment because it's required for individualnk liberty and we need it structurally because society and particularly a republic needs that discourse or subtle thought. you will never have greater debut think if it's just out since i did and needs to be dialogue with others and a free republic, free people need that debate to dance the structure of
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liberty. why are the five freedoms in the first amendment? white with speech, , press, religion, a silly, protest, redress of grievances? why would we have different amendment for each one? why isn't there just free speech and maybe the two clauses of religion? why are they altogether in an amendment? this is not supposed to be some grand gotcha question. i'm just abusing you for private -- >> when they got to new york in 1789, james madison after going through the ratifying convention and hearing, getting a lot of heat, frankly, for why isn't the protection in the bill of rights can something that george mason and others who are concerned about with the original constitution come , so when thet to new york, he was busy working
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on this, writing out a draft of the rights that he thought should be protected and in the bill of rights, and two on a lot of the state constitutions. i know i talked with senator kennedy about some of that. i don't have a clue answer for why the grouping ended up in that fashion. >> is it fairer to say that if e didn't have a first amendment with people not have these rights? s wasn't the constitution completed without the bill of rights because widow we don't k government gives of the rights? we have rights because people are treated by god with dignity and so the rights, they belong to people because the nature of humans, humans are created in the image of god and they had dignity. and so the constitution stops before the bill of rights of the bill of rights sort of clarifies whole bunch of things that we believe about people. and when you run through them it's kind of amazing that we ended the ninth and tenth tenth amendment which in a way the
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night -- i want you to turn with me but if i'm teaching it to my kids what i said about the tent amendment means you don't actually need a list that might end because if you think you have the rights the government decrees for your company might think where the common stops talking you have any more rights. it seems be with the ninth and tenth amendment say is by the way if we don't have a list of rights the continued use of all the ones we did name and state and local governments, if the federal government hasn't said this isve a power uniquely enumerator for the federal government, state and locals, you're the only governments that still have these remaining powers. is that fair or correct? >> one of the ideas at the convention, and to did talk a bit about bill of rights there were individual rights and to do have some in article one, section nine, article one, section 200 we forget those rights. i hate to take an aside about a want to underscore the ex post facto provisions are critical to individual liberty, ex post facto is the very definition of a tyrannical government when
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what you did yesterday is make illegal tomorrow and your punisher what you did yesterday when it wasn't illegal been. and so those were some of the foundational individual liberties. but the idea i think they had and was maybe a bit of a political miscalculation at the convention was because the federal can was only given certain specified powers, we didn't need to put in a bill of rights because of the federal, would not have the power to do these kinds of things in the first place. that didn't go over so great in some of the ratifying conventions, and some of the promises that were made whent instead of amending the existing structure, let's get to work asm soon as we get to new york it in and on a bill of rights.tr there was a variety of discussions and so that's what madison did when they got there in 1789. 1789. is correctyour point with respect to thinking about where rights come from but i think in the practical politics of the day, the initial idea was
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the federal government won't have the power to do that at the people said what are you talking about? there's lots of powers in this constitution. even if you think that lets make sure the federal government can't infringe these core liberties which are part of what we think our fundamental to being anpa american. >> why is there an exception against hate speech? what is hate speech and who gets to decide what it is? >> senator, i think the principle of free speech thatth the framers put into the constitution encompassed the idea that the would be as the supreme court has set suis it and of variety of cases unpopular ideas that would be expressed, and as you said earlier, it's important for individual liberty to have the ability to express your thoughts
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and your words and it's important for societal development develop america for people to express their ideas so we can improve over time. and a lot of the ideas we hold dear were unpopular. some of them not so long ago. and we develop those ideas overtime and part of free speech helps us build a better america. unpack american political flaws in one word i think it is anti-majoritarianism. you would never want the majority to get to define the majority can't hold an unpopular position. the chairman is going to take my gavel, take my microphone but i would love to ask you if speech can ever be called violette? >> i will just add one sentence to the anti-majoritarianism point. we think of the individual liberty specified inn constitution as supporting that the structure as i make clear, the structure, the separation powers is part of that same overall idea, which is protection of individual liberty
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against majoritarianism rule and the whole document tilts toward liberty. >> senator booker. >> thank you, mr.le chairman. judge, you do need at to this because we all know your answer. we allow me to ask a series of questions leading to a question i don't know your answer to? the simple question again we all know your heart but just a question is why can lead someplace, you would not fire somebody because of the color of the skin, obviously know, right? you wouldn't fire somebody -- >> right. >> you to have to answer. i just want you to say no to that. >> yakker might make clear speedy because you've hired interns, talk to me about friends. i know that's the case. forgive me for even questioning that. you would not fire someone for the gender obviousus them right? >> i have made clear my effort to achieve as best i can anyways i can't as a judge speedy because my time, i heard about them members of my colleagues even on the said i'll ask you to
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go through your hiring. i just know that's your heart anima challenging that are asking that. i'm trying to lead someplace if you will allow me. you know it would be wrong for someone else to fire so much is because of the color of the skin, right? morally wrong. >> of course. >> morally wrong, right? >> the civil rights laws speedy and ask you, person-to-person, human being, human being, it would be wrong to fire somebody because of the color of their skin. >> i understand that. i think my record speedy clearly states that. echoes of that. it's been stated numerous times. i'm not challenging that at all. would it be wrong to fire somebodyin if the person and he, i just had this person is gay?re what it be wrong to fire the person? >> senator, in my workplace i heard people because of the talents and abilities. all-american speedy maybe i can
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shift been, morally you think a type i people doesn't matter of the background. for someone to fire someone just because they are gay, maybe shift to do the law. do have a legal right to fire someone just because they are again in your opinion. >> senator, the question as i'm sure you're aware of the scope of employment discrimination laws being litigated right now and, therefore,, -- because the issue is in a variety of cases right now, it would be inconsistent as i'm sure you'll --no >> i guess senator harris, senator coons have all brought up these issues, loving v. virginia has been mentioned, the obergefell a senator manchin editing there's a lot of folks who have real concerns that he to get on the court folks were married right now really have fear that they will not be able to continue as marital bond. we saw the country where if you
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post your facebook pictures up of your marriage, some of same sex is the majority of states where that employer others find out that youou had a gay marriae and georgia, a majority of americans that you can fire somebody because you are gay. i guess you are not willing to tell me whether you personally morally have think that is right or wrong? >> senator, i'm a judge and, therefore, with the cases that you are well aware of, i know pending in the courts about the scope of the civil rights laws, the employment discrimination laws, of course congress could always make those clear -- >> that's what i want to get to the point that you won't give me a moral answer because of the pending cases and effort that. >> right, and i don't want to in any way -- >> made i can ask about your concern when you in the bush white house did you have any involvement in bushes effort to support a constitutional amendment to ban same-sex marriage? >> so, senator, when i was in
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the white house, that was part of something that he talked about. of course at that point in time speedy did you express an opinion about it yourself? >> as staff secretary things righted to that, speeches again, would've crossed my desk as i discussed before speedy i'm not privy to document at that time. juju ever express your opinions about same-sex marriage? >> i don't recall. of course at that time as you're well aware there's been a sea change in attitudes in the united states of america, even since 2004 as you're well aware. >> which are not willing to tell me your attitude to been? i guess you could change. we had president obama evolve on the issue. so will you tell me your attitude to vent about it? >> i will tell you that there was debate in the white house. vice president cheney came out, one of the few times he came out
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and publicly disagreed speedy i don't need enough his opinions. what were your opinions on the asian? >> i'm sorry, senator, i did mean to interrupt but there was debate in the white house about what president bush was doing. of course as you said, president obama will speedy what you express your opinion on same-sex marriage? >> i don't recall speech i'm not asking your opinion that.>> i'm asking your opinion now. >> the supreme court in obergefell speedy your opinion. maybe i didn't get the record. o i don't if you gay marriage is what is your opinion? >> i am a judge. i apply the law. >> have you conducted a gay marriage? >> have i y conducted one? >> presided over one competition a gay marriage. >> i have not. >> but you do not want to come your opinion on that issue? >> i apply the law. >> i see going back. i want to move on his progress
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against. >> the law of the land protects that right as dictated by the -- >> your views onn the criminal justice system, a lot of my colleagues refer to speak less some of the conservative think thank you, chief justice rehnquist court your first judicial hero. rehnquist was one of the more conservative justices but he said quote, about them, rehnquist fervently believes the supreme court of taken a wrong turn in the '60s and '70s when the court made a lot of landmark decisions, whether -- wainwright, access to an attorney. you had the assurance of police officers can't violate your constitutional rights and properlynd use them gained information come the exclusionary rule, the requirement please officers take a minute cousy, did you miranda rights. you praise rehnquist effort to limit and halt these critical
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protections you said it righted the ship of constitutional jurisprudence. and so do you think he took a wrong turn, that we've taken a wrong turn by establishing those rights? >> that's not what i said, senator, and the fact we haven't discussed exclusionary rule miranda over the last 25 is a sign of success of chief justice rehnquist and helping the supreme court achieve a middle ground that has endured, has endured at a severally speedy i think we haven't discussed it, at least i've had a chance to ask you about it and my time is running out. so just like, if anyle of these wrong terms, the exclusionary rule wrong or not.nn >> supreme court speedy your opinion. that's settled. >> i apply the precedent speedy what about the miranda warning, settle or not? >> the court speedy tell me your opinion. i know what the precedent is. i know this library will. >> the what this isn't all to answer the question. > and in dickerson the court we
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from, that's precedent on precedent. >> you've been about six minutes. my one time, i know he'll get a chance to answer mccreesh i'm just trying to get them all of us would have 67 is at the end. you said with was made our criminal laws more workable. the question really is, this ts a quote from you, criminal law speedy you made the word singular. >> criminal laws but criminal law in general. i have a real question mark workableve -- you understand the disparities in our criminal justice system. >> yes. >> youou understand that we have -- people based upon the financial status, based upon the, , this can often of differt experiences in the law. do you understand that? >> absolutely. >> you know that. i know you know that. criminal justice system treat you better if you're rich and
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guilty and for any visitor we have a real issue with that. you and i have discussed this. >> i appreciate that and went to men slept for this conversation so let me just really quickly get this out because i'm going to then let you respond. that's the challenge for a lot of americans now which is vividly the scales are given. we the system will be don't even vote have jury trials in criminal cases in more and that was something very fundamental to our criminal justice system, the jury trial. the scales have shifted so much that you see now, there's a great book which i didn't know cindy does haven't given you books, , i would've given you a number of them. >> i will. i welcome -- >> a new jim crow by michelle alexander. >> i clicked with michelle alexander. >> you're doing a good job of getting me, allowing me not to get to my question and i got a very, very diligent chapman that is going to cut me off in minute
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and ten seconds. so you know right now that we have a system that seems to be shifting away white ensign people plead guilty is another reason this book is worth reading because criminal defendants and the power shifting, sofe that's what raisd that question to me about the rights of criminal defendants it seems to be you are indicating that you are in favor of what rehnquist said, , the rights of the school defendants got out of control, that they're making more workable. the question i have is workable for who? it seems when i look at a lot of these issues, as a crack of you and i both have talking you talked about your city of violence. i was the mayor of big city. every single day working to try to keep my city safer so i know that public safety, as you do, and i believe in the systems, these laws are making us less safe, destroying committees because at yale they were not stopping a fizzing kids on the way home from parties at the
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toad looking for drugs. they were not getting the same treatment of those kids and does a lot of drug use. and so i hear you saying you're praising rehnquist was making his laws more workable and its ask you for who? >> judge, and you want to answer his questions? >> on how to get a one minute on this to understand what a great conversation about racial disparity in the criminal justice system and we talked of ensuring confidence of all americans in the fairness of the criminal justice system and the american legal system and the court system and the supreme court, and i appreciated that conversation. i would just note four things. the note note i wrote in law school about detecting race discrimination, my opinions on acquitted conduct that a been used to enhance senses in my opinions on that is often unfair when acquitted conduct is used to jack it's part of what the
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offensive conviction would be. third, my opinion on mens rea in the burwell case, i strongly would encourage take a look at that because that's part of the fairness and due process case. i understand your perspective and enjoyed ourur conversation, and think of the. >> if i could get the same treatment that senator blumenthal god, can adjust -- thank you very much, sir. mr. chairman, i'm holding a number of letters in opposition to the nomination brett kavanaugh. there are lettersin from naacp, multiple healthcare groups around the country, voto latino, the women's lawyers gard, there's a number of very esteemed religious organizations, ame churches, representations here. the congressional black caucus and others. like to submit those in the record and just and mrs. s because i've tremendous respect for him and i agree with a lot of what he was saying about free
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thought i was happening in this country i just want to ask the person from the question that i would love to read any book that lo has directly if you read any, if the judge would read any book i i reckon. i make the offer as an extension of the good-faith. >> without objection it will be made a part of the record. for the record senator durbin is one of the most prolific book recommenders i know in the senate. [laughing] i have benefited greatly from his recommendations of fiction and nonfiction alike, and so i would suggest, if you recommend to go back to senator durbin. >> i would love to do a book exchange with you as well. maybe that could help speedy start with this. >> please don't do that. [laughing] for the record i retract my comments. >> we recruited senator flake. >> thank you, mr. chairman. thank you, judge. appreciate your endurance.an
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as noted before you've done the boston marathon twice. how does this compare? >> feel good, senator. >> senator booker represented heartbreak hill i think. you are beyond that on the way down now. i just want to make a couple of comments and i will yield additional time to senator lee. cameras in the courtroom, i know you addressed it a little before. i i raise it during the course f the hearing. i am very much opposed to it, not he. i'm glad there are cameras here. they belong here. this is the congress. this is that the senator they belong in the protester our peoples right to free speech and the conscience to see that. but i fear that it would politicize and be detrimental to the independence of the judiciary. i'm glad that the cameras have been resisted an oral arguments. i know you can't comment or won't comment on this. if you want to you can, but i
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certainly don't think it's in our interest to bring the element of politics any closer to the judiciary. so i will make the same comments i did with senator court uses hearing. i did share a submitter on the use of technology in the courtroom last year. i've had a long interest in the topic and i remain convinced after the testimony that we received and what i observed, that we are better off having oral arguments the way they had been. and the court has remained and i hope will continue to remain a bastion ofti independent. that is more difficult if there are cameras in the courtroom. so with that i will yield my reading time to senator lee as he might use it.at >> thank you, senator flake. we will go to senator harris and then back to senator lee. senator booker race an issue about the reduction in the
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number of jury trials in criminal cases. i don't know what particularly speedy plea-bargaining. >> because a plea bargains? >> yes, sir. the percentage of jury trials has content in this country medically. plea bargains are the result of minimum sentences which a mr. chairman, medical. >> antifa that explanation. senator harris. >> thank you. judge, you spoke about the president unlimited proscar discretion it does not discretion allow them to target his political enemies or prosecution and spare his friends? >> senator, in the market speech i gave in 2015 i pointed out that there's a a question of te limits of prosecutorial discretion, it's a question that is unsettled and needs further study. the supreme court of course as referred to the concept and well-settled tradition of prosecutorial discretion in heckler versus speech i recall you talk about that during the
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course of the steering and also i'm reflecting on the conversation with senator flake yesterday we raised concern wih you about a recent tweet by the president. in that tweet the president attack the justice department for indicting two republican numbers of carpet because it would hurt the republican party at the pole. you said you didn't want to assess, and the political arena somewhat as you to condemn the tweet, even though i believe you should. but what you recognize and agree with the principle that a sitting president should not letter-size the justice department? >> senator, i think that's asked me to wait into the political arena. >> so it's not a self evident speedy three zip codes away from a political arena, senator. >> okay. follow up on senator booker is question from yesterday on an interview you gave in 1999 in connection with the case you worked on how you said it was n ample conclusion within the next ten-20 years that if the court
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would say quote, that the quote, the court was sick what we are all one race in the eyes of the government. would you agree that your statement suggest that the government would no longer recognize racial differences? that's my reading of your word. >> i think i talked to send a book about that yesterday. that was an aspirational suggestion, but i said as recently as a couple years ago that an long march or racial equality is not finished and racial discrimination is still around. we seeco it on an all too frequt basis. i said that in. >> yes, the conclusion i draw from that is that you would come and i believe we have not place yet.that >> there is still racial disparity, racial discrimination of course in american society. i said that in my opinions. >> my question is this.
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why should you be up to the court to decide when we arrive, never that moment comes? why should be up to the courts to decide? >> i think that's a question of how to interpret the precedent of the court and its different errors and we discussed. there's precedent into higher education context. there's precedent in the contracting context in terms speedy death that try for dictator should be the court that would make the decision that we've arrived at that place where we are basically all one race in the eyes of the government? >> the precedent doesn'tt necessarily lead to the conclusion. i think that's an open question going forward. usually with justice o'connor statement in the michigan case about the 25 years and that clock is moving fast, but we still have come asat a said in y opinions, work to do. >> i have just a few minutes left, but just to continue this
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conversation. if it were up to the courts to decide thisha taking in a naturl conclusion, this, what you wrote, will it be the five justices than of the court would decide or are you suggesting that it should be like brown v. board of education with would be a unanimous that we arrived at that point or could it somebody five justices, a majority of the court decided we have arrived at that point? >> i think a one-size-fits-all answer to the question is hard to give in this speedy do you imagine this being the ideal? >> the ideal for every case is that every case is unanimous, but that's, realize that night but that's the goal when i talk about joining a team of nine, that's a goal and i think that's the goal of every justice. and the court has shown a remarkable ability of the most important cases in its history, like brown v. board of education, i united states v.
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richard nixon to achieve unanimity, that's, those come that's part of the reason those cases stand for such landmarks is of theni decision comes independence and the unanimity. >> you and i discussed that and you mentioned it here, i agree with that. but telll me when the court does make that decision at that moment that we are one race, does that mean the government should not provide federal funding to historically black colleges and universities? >> senator, i think the historically black colleges ande universities have of course been a critical part of the educational system of the united states. and speedy we recognize past restrictions on african american students being able to access to higher education but you imagine if we reach this point that you i think hope that we will achieve think we all do, we will all be equal in every way?
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do believe that would mean then that the with and federal funding for hbcu? >> again, senator, when you reach de that point it's hard to pursue what would mean but i know about the historically black colleges and universities is of course the origins of them, the african-americans were denied access to higher education institutions, what they have accomplished and produced and are continuing, what they continue to do in the importance of those colleges and universities in the united states, continue and that educational function. >> thank you. and i with the course and agencies enforce laws like the civil rights act of 1964 if the government does not recognize racial categories? i'm not clear about what you are imagining would occur. >> that's a question of what congress has as the law. so long as congress and, of
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course, a landmark civil rights law, , the voting rights act, to of the most consequential loss ever passed by congress, band this commission the basis of race, and so long as those laws are on the books and one imagines the loss will always be on the books, discrimination on the basis of race will be illegal under the civil rights laws and the voting rights laws and in what they cover. >> so what would come of the civil rights act of 1964 in that place that you imagined, lisath 1999 when we arrived ten to 20 or something where we are all based in the eyes of the government? what with that mean for the civil rights act of 1964? because i'm assuming that if you are actually confirmed you will speedy we believe this supreme court confirmation hearings at this point to go live to the u.s. senate. you can watch all of this weeks or an online at c-span.org. we will. we will be live with today's

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