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tv   Ninth Circuit Court of Appeals Confirmation Hearing  CSPAN  March 13, 2019 10:04am-12:21pm EDT

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judiciary committee is gathering for confirmation hearing for two nominees that would serve on the san francisco-based ninth circuit court of appeals. senator lindsey graham of south carolina is the chair of the committee. should start here in just a moment. this is live coverage on c-span3. good morning. we're going to consider two ninth circuit tom knees this morning. and i believe senator cotton is here to make an introduction. we'll just lead off with you, senator cotton. >> thank you, mr. chairman. senator feinstein, members of the committee, i am honored
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today to introduce my old free friend kim lee as a nom neap to be circuit judge on the court of appeals for the ninth circuit. i hope i haven't hereby doomed his chances. joining us today is ken's wife melissa. his mother choice joyce. ken and melissa ace girls. couldn't make it. sadly, neither could ken's father, stan, who hassed pai o away in 0u after a battle with cancer but i no he how proud he is looking down on his son today. the lee's embody the american dream. stan and joyce left the economic and political turmoil of south korea in 1980. bringing with them 4-year-old ken and his three sisters. they settled in the korea town neighborhood of los angeles. ken's father had been an engineer in korea. but now he worked six days a week 13 hours a day fixes spray paint machines. his mother went to school at
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night to become an ac ewe puncturist. today their honest work provided for the lee family. as important ken watched his parents in knows years and learned about grit, perseverance, sacrifice and hard work. from those working class roots in an immigrant community ken did well enough to earn a spot at cornell where he was a stop student in his major and then at harvard law where we first met. ken was a third year student and i was a first year he didn't need to give me the time of day. but he did. he gave me tips on classes, summer jobs and clerkships. he was kind and thoughtful, generous with his time and wisdom, even when nothing in in it for him he chose a lot during basketball pickup games. i have to confess ken a better lawyer than a basketball player. but you don't need me to tell you that ken lee is an
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outstanding lawyer. an appellate clerk sthp, service as council to president george w. bush. work on in committee during the confirmation of the chief justice. teaching law students at pepper dine and private practice at two of the country's top firms. all on paper in front of you. i'm here to speak for ken's character. this is a man who didn'tups give a hand to a first-year law student. he mentored minority students and coached youth baseball in harlem. he leads an active pro bono practice working 100s of hours to protect the helpless and the powerless. inmates antibioticsed by prison authorities. coptic christian fleeing persecution. home orions facing prosecution. the ken lee i knew then is the same as today. a man of thoughtfulness generous and integrity. i understand some are upset about blue stipes and some of his views may not be your cup of
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tee. let me suggest just vote against him he is a good man he won't mold a grudge. which is more than we can say about most of us senators. but it's wrong to manufacture spurious processed falts or question his character. have the courage of convictions just say you disagree with him we'd be better off if more of us expressed those views openly. but acknowledge that a political or judicial disagreement doesn't necessarily imply a bad character. quite the opposite with ken lee. i think you'll find today he is not only a brilliant lawyer but more important a man of high character. i trust the majority of the committee and the senate will support his nomination. i'm proud to call ken lee a friend and pretty soon i'll be proud to call him judge. >> thank you very much, senator cotton. appreciate you coming to the committee. thank you very much. we're going to be hearing from two nominees today that the aba
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unanimously says are well qualified. daniel collins and mr. lee just introduced by senator cotton. neither has had the blue slip returned. i think you understand where i'm coming from on that. there's been alt of consultation from my point of view it's time to move on. in this case mr. i guess it was lee supplemented writings. you turned over 515 pages of writings. we found more. you turned in 61 pages. which is not unusual. i appreciate you doing that. we held up this hearing the first time because we received as materials late from the white house. they missed it by a day. i'm trying to let the white house know that our numbers matter, that to get the
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background check done we drad it to make sure that was done. we've had supplemental writings submitted from my point of view the process has been fair. may not like the outcome of how this works but i've tried to be sensitive to the idea that the background check did have holes in it and we required a delay to get it done. i'd want that for us. they missed the reporting date by a day. hopefully -- i know they got a lot going on at the white house. but we're going to hold the time schedule. and the supplemental writings have been submitted we appreciate that. from a process point of view we've been fair to the committee, and it is now time to have the hearing. with that i'll turn it over to senator feinstein. >> thanks, mr. chairman. i'm really very concerned by the fact that there are no other members on our side here.
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these are circuit court nominees. they are controversial. and it seems to me that we ought to have a full presence on our side. and that's not your problem. it's my problem. but i do want to say that. i'm very disappointed that the committee is holding the hearings. as you know, both senator harris and i have not returned our blue slips on either mr. lee or mr. collins. so the result of in action is to effectively kill the blue slips for the circuit court, at least as long as the control is on your side. i've spoken at length on the importance of the blue slips. so i'm not going to restate everything i've said.
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but around here what goes around comes around. and the blue slip in the 25 years i've been on this committee has been an effective way of ensuring that home state senators, regardless of party, have a say on the nominees's decisions will directly impact their constituents. so i regret this hearing is being held when two blue slips from the state that this nominee will represent have -- have not come in. and as we have publicly stated, our opposition to both is well-founded. so let me go into it. in mr. lee's case he failed to provide over 75 articles to our judicial selection committee,
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despite repeated requests to do so. while many of the wrights are from his time in college, others date from his time as a practicing lawyer. in addition, the committee received 60 pages of articles that had previously been unidentified in the days before in hearing and over 18 months after he was interviewed bip my bipartisan in-state committee. further, these articles were submitted only after my staff and the press identified individual writings that were missing. given the repeated omissions, it's reasonable to ask whether there are additional pieces authored by mr. lee that still have not been turned over. and i will do that. we can ask mr. lee about the writings as they demonstrate very strong personal views on issues including immigration,
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affirmative action and voting rights. i've also previously indicated concerns about mr. collins's nomination to the ninth circuit. as senator harris and i noted in a joint press release, our in-state vetting process issues was with mr. collins's temperament and rigidity. specifically our vetting process had identified that mr. collins has and i quote, a history of taking strong litigation positions for no reason other than attempting to overturn precedent and push legal boundaries, end quote. in reviewing mr. collins's record, there are additional concerns about positions he has taken on women's reproductive rights, the use of military commissions to try enemy combatants and his views on the rights of criminal defendants. and i have question base a provision on the 2006 patriot
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act that mr. collins is said to have authored which stripped federal district court judges of the power to appoint interim united states attorneys. mr. chairman, it's not too late to return to honoring the blue slip of home state senators of both parties. not just on district court nominations. but on nominations to the circuit as well. i hope you will do that. and i hope that after this hearing today you will not allow these nominees to receive a committee vote or advance to the full senate. i would hope that members on in side would attend. this is an important hearing. and i'm very concerned that our members are not present. thank you, mr. chairman. >> senator blumenthal is present. >> correct. >> so if the nominees would come forward, please.
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would you both raise your right hand. do you solemnly wear the testimony you testimony you are about to give to this committee is the truth, the whole truth and nothing but the truth so help you god. >> i'm introduce mr. collins mr. lee has been introduced by senator cotton. mr. collins graduated from harvard, undergraduate phia beta kappa. jd from stanford. serve as editor of the stanford law review. he has had two clerkships with judge dorothy nielsen, carter appointee on the ninth circuit in california. he clerked for justice scalia on the supreme court. he mass sfens extensive experiment in the public and private secretary reporter. he served as assistant adviser to the justice department office of legal counsel after clerking for justice scalia he served as assistant united states foreign in los angeles for four years
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where he prosecuted over 60 criminal cases, including 8 jury trials. in '96 he joined a law firm in los angeles as an associate. 2001 he joined the justice department served as deputy attorney general focusing on combatting child pornography and child abuse and reform sentencing law. he played a key role in the civil rights division guidelines prohibiting use of racial profile by federal law enforcement agencies. he also served as the chief privacy officer. in 2003, he jand are join monger and practiced and focused on appellate law. he is one of california's leading appellate lawyers. since 2015 mr. collins has been recognized by best lawyers in america for his appellate practice. 2012, he was listed in one of the superlawyers as a top rated lawyer in appellate practice for
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the entire country. chief justice roberts appointed mr. collins to the advisory committee on the rules of evidence in 2014 and reappointed again in 2017. he teaches appellate advocacy and federal courts as adjunct professor at loyola law school in los angeles. he was rated unanimously well qualified by the aba. with that, mr. collins. >> thank you. thank you, chairman graham and ranking member feinstein for holding this hearing. and i thank all the senators for your consideration of my nomination and i'd like to thank president trump for making that nomination. and i would hope that i would earn the trust that's been reposed in me. i'd like to also thank and introduce my family members starting with my beautiful wife who is behind me, now for almost
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20 years she has been a source of joy, support, grace, love and laughter in my life. i like to say that we were as it were match made by god himself because we met on the -- in the saengt esanctuary off you are parish church about 10 feet from where we were later married. you see, my wife is -- was the cantor at the time in the parish. i was one of the lekter and the lecter sits next to the cantor. and i confess i did for the always give the mass my full, undivided attention. i'd also like to introduce my three children who are also here. my oldest is john paul, a senior in high school. he is now going through the college application and decision process. he is a very bright student. he likes to think about deep
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political and philosophical issues. he is also a very compassion it man except if you face him on the tennis court where his brutal lefty serve will crush you like a bug. he is one of the star players on his high school tennis team. then my daughter kira, multitalented, a freshman in high school. she is also a great tennis players. she was a captain of her volleyball team. she is starting lacrosse. she sings almost as bauflly as her mother. she is also a great baker. as i said she is multitalented. my youngest son is shamus just applying to high schools. he is also a bright young man. his passion is baseball. both as a player where he compels and as a fan of the los angeles donnelers where he had had to experience the highs and lows in the last few years of making it to the world series and not quite closing the deal.
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and then i'd also like to introduce my siblings here, my brother tim, my sisters chris and ginny also here. my sister in law marie and nephew harry. my good friend mark savage who flew in from california for this hearing. i'm sorry my parents can't be here for this moment. they both passed away many years ago. but i owe everything i have to them and in particular to my mother mo was a very strong person and taught me the importance of education and of good values. and i'd be pleased to answer any questions you may have. >> great, first of all i want to thank this committee, particularly chairman graham and ranking member feinstein for holding the hearing. i want to thank senator cotton for the nice introduction and i also want to thank the president for nominating me. before introducing my family members i just want to make a
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brief statement about concerns raised but some senators about how some of my documents were produced. as in committee knows, i provided over 500 pages of my writings since i was a teenager. most of those writings during my college time. i made every good faith effort to collect everything that i had. i went through my personal files, my electronic files, internet severance, online databases, my firm's library of articles. i even went to my mom's old house went through the garage, through boxes of baseball cards, scrap books and i did find a few partial articles i had written as a teenager and provided them to the committee. it later came to my attention that there were additional articles from -- which were found in non-public showers, for example i think some found on a private server held by someone. and i provided them to the committee immediately after we
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found them. i apology for this. i know it's caused inconvenience and frustrating. it's frustrating for me as well. and i hope this committee understands that. now i want to briefly introduce my family members here. first of all most importantly behind me is my wife melissa. melissa has a heart of gold. she is dedicated her life to helping others and to public service. she started off her career as a social worker in inner city baltimore helping underprivileged youth and then became a career civil servant and worked under the administrations of both president george w. bush and president barack obama. she is the most tolerant and understanding person i know. sme tolerates my many flaws and the mistakes i make. and importantly she also tolerates the fact that i dress up our two daughters as "star wars" characters every halloween. that brings us to our two
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daughters. they are a spirited bunch and if they were here they would be singing wheels on the bus outroud. that's why they're not here. they're back at home with my mother-in-law. i also want to introduce my mom over here. my mom is my hero. when our family immigrated to the united states my parents were middle aged, had four kids to support. and didn't speak a word of english. so we settled down in the koreatown area of los angeles and my parents found whatever job they could. and growing up, i remember my mom taking care of my three older sisters and me in the morning. she would go to work, come back take care of us and go to school at night to learn a new skill as a middle aged woman. i'm so proud of my mom and feel so blessed. i also want to mention my three older sisters.
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they are back home in california. i looked up to them growing up and learned so much from them. also i want to thank so many of my friends here today in this room and finally i want to mention someone who is no longer here with us but without whom i would not be here today. that's my dad. my dad was the hardest working man i knew. he worked 60, 70 hours a with week. literally never took a day of vacation. one of my dad's favorite sayings was this is why america is the greatest country in the world. he would say that whenever he liked something. for example, whenever we want to celebrate something he would take our entire family to-size letters all you can eat buffet for 8.99 as he put on a couple of extra tater tots and chicken swings he said see this is why america is the greatest country in the world. i never had the heart to tell him about the other cull near options. but he loved it. and another thing i loved was the american legal system.
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although he wasn't a lawyer he loved hearing stories of a single man or single woman fighting you know the government or the large company or the powerful and winning. because he said, back in our native homeland stuff like that never happened. he mentioned that you know the laws would always bend to favor the powerful, the privileged and the politically connected. but he said here in america things are fair and equal. perhaps my dad had a slightly idealized view of our legal system. but that's why i wanted to become lawyer and in my 20 years as a lawyer i hope i try to honor the faith that my dad had in the legal system. i've served as lawyer in all three branches of government. tried my best as lawyer in private practice and am particularly proud of hundreds of hours i've devoted to pro bono cases helping the poor who can't afford legal representation and members of marginalized groups who may not have access to legal justice.
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and i hope i can make my dad proud today. thank you. >> thank you both very much. and your stories are -- telling a lot about you and the country. mr. collins, you've had 60 cases that you prosecuted at doj. is that correct? i think eight jury trials. >> approximately. the eight jury trials includes one that was a retrial of a hung jury. >> okay. >> 38 arguments before the ninth circuit. >> i think that's right. it may be 39. but it's about that, yes. >> all right. well it's 38 today. >> may be an update. >> okay. and 14 appeals you participated in to the supreme court. is that correct? >> i've never argued in the supreme court but i filed a number of briefs in the supreme court, yes. >> about 14 times is that -- >> that sounds about right. >> i'm checking my staff to make sure they know what they're doing. >> yes. >> what have you learned from
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all this? >> i learned that the law is pro foundly important to our society and that the fair administration of justice is critical to ensuring our rights, ensuring the functioning of the. >> well as a trial lawyer, what did you learn versus being an advocate before the appellate court. >> being a trial lawyer and in particular particular being an ausa and the cases i focused on were violent crime kwass, you had a sense of kind of the immediacy of your impact. i remember one case in particular that i cotried with one of my colleagues. and the victim's family came every day to the trial. it was a horrific case involving a kidnapping and rape. and the victim suffered terribly during the trial and the testimony. and after the conviction, i mean, the whole family came up, the grandmother comes up gives you a hug because you've delivered justice to them in a
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very concrete way. so that was a very moving experience for me. >> that leads me to my next question. this committee engaged in a bipartisan effort to change our sentencing laws in a way that i'm proud of. and the president signed. you know, you've been a former prosecutor. i understand sort of where you're coming from. how do you feel about the first step act. >> i think that the first step act appeared to me to be a balanced approach to reform some of the -- some of the sentencing provisions which seemed unduly harsh and needed some. >> for non-violent offenders. >> um-hum. >> mr. lee, you wrote a lot as a young person. >> i did, senator. >> why? >> senator, i think when i entered college as a 17-year-old i started to become interested in current events and i started reading newspaper columns,
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watching television, the maclaughlin group and radio. and you know i think when you are group. >> you watched maclaughlin gruch as a kid. >> i did. >> that would lose me. so keep going. >> so when i started to become interested in them i started writing about the issues. and when you're 18 or 19 you know, you think you know everything. even though you really don't. and not only that you think. >> when did you realize you didn't know everything. >> i think, by the time i was probably in my mid-to late 20s. it's a slow process but you realize you don't have the life experiences. you don't know. >> did having kids help you understand. >> absolutely, senator, having kids, being married has absolutely helped me become more empathetic, more understanding. >> let's talk about diversity and affirmative action. you've written about it. you have opinions on it. you have a compelling life story. can you tell us what shapes your views about the concept of diversity and affirmative action
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in aur louen a society. >> absolutely, senator. when i wrote the piece on affirmative action. i was in the 19990s. a big smu in the age willing american community we're not aen mono lithic community. but a lot of us were concerned that some schools were discriminating against asian-americans. obviously at the time i was applying to school. that was something that was of interest to me at the time. and in particular, you know, i think there was a concern because there was a history of discrimination against asian-americans from the chinese exclusion act to koramatsu to the vincent chin case. there was a feeling in the asian community at the grass roots level that our voice wasn't being heard. there was a lot of push of let's write about it. let's hold rallies. write to our elected officials. and that was part of it, senator, that i wrote about that at that time, senator. but obviously, senator -- at
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that time when i wrote it i think there was a question of whether the bakke decision from 1978 was valid. i think the supreme court has -- has held and in the cigaretter and gratsz case and fisher case that affirmative action in ufrpts is legitimate. >> and i trust that each member has five minutes for each? >> yes and we'll just be are liberal. take -- five minutes for each and if you need another round, you know. >> okay. >> thank you. >> we'll be sure and have a author o hearing. >> let me begin with mr. lee. i'd like to know about your submission of articles and particularly the failure to disclose some controversial ones. maybe you could discuss the steps you took to identify the
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universe of your writings before making submissions to this committee. and then explain the failure to turn over more than 40 articles that you had written do you agree college. >> okay. thank you, senator. and i understand your concerns about that. senator, when i got the senate judiciary questionnaire it asked for all articles i had written. i started the process of looking through my personal files. and i had a scrap book of articles i had written so i collected those. i searched my electronic files because i had my computer with p. d. f files i things i had written. i collected those. also my firm also maintain as library of articles i had written as a lawyer. i went through those and collected those. i also went to the internet and did many, many internet searches to find articles. i also went to databases, lexus
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nexus to find articles. i went to my mom's house where i still have a lot of my stuff there in the garage. i went through many, many boxes trying to find articles. and i -- in total i think i had provided over 500 pages of articles, most of the which i had written during my college time and i believe that was all of the articles i had written. i believed that was all of the articles i had written. there was a lot of them it later came to my attention there were additional articles. again i think they are found through non-public sources. again these articles were written 20 to 25 years ago. it was before the internet era. so, you know, these articles were not on the internet you can search and find. i mean, i think some of the articles we found on a private internet server that someone had. it was i think like the url is
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like 192.238.021. and someone apparently had scanned these 20-year-old articles and put them in his private server. but when he scanned it it wasn't searchable -- text searchable therefore didn't appear on the internet. and once i discovered those, i immediately provided them to the committee. and with respect do the articles, again the topics were similar to what i had written before. so, you know, in my mind i believed i had provided everything. bub again, i apologize to the committee for that. obviously it's frustrating for the committee and a major inconvenience. >> well, let me discuss one article that i have. and i don't know whether it's really relevant or not. but it's the counsel review, february 10th, 1994. and it's about a.i.d.s.
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there is inkented count. 90 out of ten people with a.i.d.s. are gay or drug users. and you make certain arguments. ? article true of your perspective today? and if you wrote an article like this today how would you -- what would you say? >> senator, i absolutely would not write that today. you know, i truly regret writing that. when i wrote that article i was 18 years old. and it was a completely misguided attempt to -- i was trying to defend president reagan's a.i.d.s. policy and trying to to stay was consistent with risk levels. but as a 18-year-old i didn't know anything. i didn't know science, epidemiology. i was paritying something i read somewhere. frankly looking at that now 26 years later i'm embarrassed by it. >> well, let's -- i don't want
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to waste time because i appreciate your answer. and what has changed for you now? the important thing is how do you view the issues now? >> thank you, senator. i think -- i think over the years you gain more empathy. you know when you go through life, the good and the bad, the difficult things, and just different people you meet as well. i mean i personally know someone who is living with that disease. and just thinking about -- and this person i respect. thinking about him read whag i wrote as an 18-year-old is mort fiege frankly. over 25 years you mature and become more empathetic and learn things. i like to think i've matured as a person over the past two and a half decades, senator. >> thank you for that answer. and i appreciate it very much. mr. collins, i understand you drafted a provision of the 2005
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patriot act reauthorization that removed the ability of federal district court judges to name interim united states attorney appoints mts. in 2006 attorney general alberto gonzalez fired nine u.s. attorneys for political reasons. the bush administration then used your provision to fill those opening vacancies indefinitely and by pass senate confirmation. you stated you did not anticipate your provision creating an open- this is a get -- an open ended feature. why did you decide to strip federal district court judges of their authority to fill u.s. attorney vacancies? >> i actually did not draft the provision that ultimately was enacted. what happened was in 2003 when i was still in the department -- i believe it was july of 2003 -- i was asked whether there were additional proposals that we
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wanted to include in a proposed doj reauthorization bill. i suggested largely driven by the significant blowback the administration had gotten from the bench on the protect act that we consider removing the courts from appointing interim u.s. attorneys, because of the policy conflict between the two branches at that point in time. when i returned to my favor about a year later in 2004, i got an email from will michellea asking me you remember you had the idea you had what was the section? and i sent him back the section and i suggested different alternatives and language. the language that was ultimately used in 2005 and enacted in 2006 is not any of the options that i had provided in that email. they kim up with their own language to implement the concept. >> the part that concerns me is by passing senate oversight.
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senate confirmation. >> well, the option -- one of the options i i listed although i recommended against it because of the complications kwas the vacancy act because of the constraints on it. there were a variety of ways it could have been done. i did not envision what was going to happen and did happen with that. i originally proposed. >> you had no intent to create any situation whereby a president could decide to by pass a confirmation process? i did not foresee that it could be used -- when you read the text of it you realize that yes that could be done, do it indefinitely and that was not something i had really thought of. mine was more focused on the thought that when there was policy conflict between some of the judges and some districts and the administration on sentencing issues, it was popular probably not a good idea to have the bench appointing the united states foreign for that district. >> you do not feel that way
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today. >> no, i -- it was quickly repealed and been put back in place. and i accept that that's how the law stands today. >> okay. you also filed an amicus, the homdon case, in which you argued president bush properly exercised his authority as commander in chief when he established military commissions to try guantanamo detainees without explicit authorization from congress. the supreme court disagreed and held the commissions violated the uniform code of military justice and the again eva conventions. in july 2006, testimony before in committee, you suggested that congress should, quote, move promptly to overall, end quote, the homdon decision by statute.
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so here is the question. what's the basis for your conclusion that military commissions are better suited than article iii courts to try terrorism suspects? >> well it was i think a broad consensus among a number of people at the time that military commissions should be retained as an option because any provided swla greater flexibility for particularly difficult cases. the congress ultimately did adopt and military commissions act in 2006 that then was the subject of a further supreme court case. >> do you share that -- do you have that view today? >> you know, at this point, as a nominee to an article iii court i'm for the going to get to have policy views and those public issues wherefore the political branchs to resolve. >> okay let me ask you another one. do you believe that trial by military commission is
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appropriate for u.s. citizens accused of terrorism in the united states? >> i don't know that i ever specifically opined on that question. >> i don't know whether you did or not. i'm asking you get. >> i don't think it would be appropriate for me to answer that kind of a hypothetical. that's something that could come before the courts. >> well, i'm not sure that's a valid reason, that a trial by a military commission for a u.s. citizen accused of terrorism could be held by a military commission as opposed to a court. so you're saying you don't have an opinion oh that subject. >> no, i'm saying, that you know, that kind of a claim that a military commission would be appropriate -- inappropriate is something that someone who was contesting that procedure would then file in a court and i don't think it would be appropriate for me as a nominee to a court
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to opine on that open question. >> let me move on. in a case about a city ordinance requiring pregnancy clinics to disclose if they don't provide abortion services, you argued that this ordnance violated the first amendment. and i quote, serves literally no purpose other than to burden clinics's protected speech. please explain reasoning how putting out a sign notifying of a woman of services provided and not provided is a burden on a clinic's free speech. >> the fourth circuit in that case unanimously invalidated the ordnance as a violation of the first amendment. the court held that it really was not an attempt to regulate commercial speech. it didn't regulate professional speech. and given that the trigger for application of the ordnance was whether or not you communicated information about particular
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services made the trying are for it implicate the first amendment and it struck it down. >> in 1995, you wrote a book review in which you appeared to support the position that miranda v. z, a longstanding supreme court press den that protects the rights of criminal defendants should be overturned. specifically, you wrote that miranda should, quote, jet sonned in constitutional text enkwoed. explain your understanding of what it means to follow precedent and what jettisening with mean. >> the supreme court in dickerson rejected those academic arguments in that law review which i also did an amicus brief in the dickerson case. and i would be bound by that
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decision and faithfully apply. i would also point out in my brief in that case i pointed out the validity of the miranda warnings was not at issue and that we were not questioning that in that brief. it was the question of the remedy and whether or not the statute that congress had passed on that subject was unconstitutional. >> thank you. i think my time is up. >> thank you for your information. military -- u.s. citizens cannot be tried by military commissions under the statute. senator hawley. >> thank you, mr. chairman. mr. collins let me start with you. can you transcribe to me your judicial philosophy? tell me what you think the role of a judge is -- should be. >> i think the role of a judge is to apply the law fairly and impartially to the facts of the case. i think with statutes you would start with the text of the statute, apply the appropriate canons. you'd have to consult the
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relevant precedent, be bound by what the supreme court has said. i'm here as a nominee to what article iii terms is it an inferior court to the one supreme court. and i would have to follow what they'd say. >> you mention interpreting texts just now. that's of course what we do every day as lawyers and what you'll do every day on the bench. tell me about how you would go about interpreting a text, rebel it's a statutory text or a constitutional text, what are the tools you would use? how would you approach it? give me some visibility into your thinking there. >> well if there is a relevant precedent on point i'd have to start with that. if there is no precedent, then i think you look at the original public meaning. what would the words have been understood to the legal community to whom they were proposed for adoption? and try and and get a sense of the rule established by that. and then take that rule and apply it in the contemporary
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circumstances of the situation in the case at hand. >> say more about original public meaning. what do you mean by that. >> by original public meaning it doesn't mean the subjective intent of the persons what they had in their head. it means when you put the words down on paper, what do educated lawyers who understand the legal system and of the doctrines- dsh how would they read those words? what would they understand the rule being established to be and then carry the rule poured. >> let's imagine a case where there is absent of precedent, a case of first impression and it's a statutory interpretation or constitutional interpretation case doesn't matter. you've got various options. you've got the text, structure, you have history. purpose. legislative history. you have contemporary values, canons you mentioned a moment ago. how do you prioritize and deploy the different tools or
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considerations. >> well as i said if there is a precedent on point that construes it then i have to follow that. if not, then i think you start with the plain meaning of the words, the supreme court has put considerable weight on that. if there is an ambiguity then you may need to resort to the canons in order to be able to resolve that. and in many cases it often does. >> purpose, how does that -- >> i think it's important to understand the context. i remember a case that was decided by the court the year that i clerked. it was a tax case where the statute was trying to -- it was enacted in response to two supreme court cases. and so in trying to figure out what this vaguely worded statute meant and justice scalia wrote the opinion -- he took into account it was an effort to overall those cases. and so a reading of the words that didn't change the result in those cases was disfavored.
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and he adopted the one that would change that. so sometimes you have to look at the larger context of it means understand the words in the context of the public meaning well educated lawyers that understand the situation and rules would attach to it. . >> mr. lee, let me turn to you, same question, judicial philosophy, tell me how you understand the role of a judge? >> thank you, senator. i think the role of the judge is to interpret the law, not to impose his or her own personal views and i think in interpreting the law the first place is the text of the statute, barring any precedent that controls the facts of the case. >> what about constitutional interpretation? >> senator, you always start with the text and if the text is unambiguous your inquiry ends there. if the text is -- isn't clear, i
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think you can look at the structure of the statute or the constitution obviously for the constitution you look at the history as well and i think usually by looking at the text, structure and the history, they'll often be -- provide the answer. >> let me ask you about this, how should congress' own constitutional judgment be weighed by a congress. let's say whether it's the 14th amendment section 5 or other means how do you think a court ought to weigh that? >> obviously i think the courts have to give deference to the legislature and there are canons of statutory construction that stu statutes have to be construed to avoid constitutional problems. but the judicial branch is an independent branch and judges take an oath to uphold the constitution.
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the courts have an independent branch and have to make their independent judgment as well. >> what does substantive due process mean to you? >> senator, substantive due process has a long history. there's obviously economic rights embedded in substantive due process in the era. the words substantive due process don't appear in the constitution put the supreme court has held there is a liberty interest in the due process clause and obviously as an inferior court judge nominee if i were confirmed i would be bound to follow the precedent in that area. >> because it is precedent, right? >> yes, senator. >> mr. collins, same question to you, substantive due process, how do you under that doctrine? >> well, it's been a subject of some controversy. i remember in law school dean neeley at stanford referred to it as something similar to green pastel redness, but it is firmly
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established in the doctrines of the supreme court. it's both the basis on which the court has incorporated the bill of rights against the states for the most of the bill of rights and also has acknowledged certain unremunerated rights. i would be bound by those precedence and faithfully apply them. >> do you understand the distinction between the incorporation cases and the unremunerated federal rights cases? >> yes, in the sense that, you know, i know, for example, justice scalia was willing to in the mcdonald case, he agreed that with the line of incorporation cases based on substantive due process as opposed to resting it on the privileges or immunities clause because the precedent was so settled. it's a distinct line of cases that looks to unremunerated rights in terms of substantive due process. >> thank you, mr. chairman.
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>> senator blumenthal. >> thanks, mr. chairman. welcome to you both and congratulations on your nominations and your families being with you today. mr. lee, you did write a lot and some of those writings are deeply troubling, maybe troubling to you as well, and i want to give you a chance to explain some of them to the committee. in the time that you were at cornell, there was a scandal involving sexual harassment. and you may recall that you characterized the professor's action, giving rise to that scandal as quote/unquote kindly acts and you talked about the mo motives of women alleging the
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harassment as being, quote, propagated end quote by a course that they took giving them the, quote, pernicious view that all women are victims of the sexism inherent in our patriarchal society, end quote. you wrote in a separate article charges of sexism often amount to nothing but irrelevant pouting. so i'm wondering, particularly in light of what we've seen in the me too movement, the conviction of larry nassar, the charges against harvey wine stein, convictions of bill cosby and others, sexism in your view amount to a irrelevant pouting? >> i understand your concerns and i can tell you issues of
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sexism is very concerning to me and important to me, especially as a father of two young daughters and as someone who has three older sisters who i admire so much. >> why did you write that? >> senator, when i wrote that article, i was 19 years old and i was trying to defend a professor that had known and admired and respected at the time. frankly at the time, i didn't know -- i didn't have the life experiences of how the workplace works. my only job before then was as a newspaper boy a few years before delivering papers in our local neighborhood. i didn't understand the dynamics of how things work in the workplace. frankly, also very naive. the thought was, you know, i don't engage in that kind of behavior, my friends don't engage in that kind of behavior and at that time, we didn't hear too much about these type of stories. i think now we know why we didn't hear those stories. you know, i think i had a major
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blind spot on that over the course of the past 25 years as i entered the workforce, i've understood how these workplace dynamics work, how, you know, women are -- can be mistreated by superiors and -- >> let me ask you, do you think women should be enabled and do you think they have the right under our law now to decide when to become pregnant and when not? >> absolutely, senator. >> that is a moral right? >> yes senator. >> and a legal right. >> yes senator. >> do you think roe v. wade was correctly decided? >> senator, roe v. wade is an incredibly important decision and it's a landmark decision, it's a decision relied upon by millions of people and i will faithfully apply that precedent and -- >> but you do believe it is a moral right for women to decide
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when to become pregnant? that's what you just said. do you think there's also a moral right against segregation, whether it's in education or health care? segregation based on race or religion or any other such category? >> senator, segregation is immoral. >> and wherever it occurs? >> it is. >> and also illegal. and do you believe brown versus board of education was correctly decided. >> senator, brown v. board is one of the landmark decisions. it has a personal meaning to me, obviously, as a minority, that's the reason why i was able to attend schools that aren't segregated. >> if you had been on the supreme court would you have voted in favor of that outcome? >> i think it's an important decision and i think it's a landmark decision. obviously i would think it's one of the most important decisions
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the court has issued in reversing plessy versus ferguson. >> you know, i -- obviously i'm not surprised by your declining to answer my question, whether it was correctly decided. what do you think your father would have said? >> you know, i -- dad believed in equality. >> don't you think he would have said yeah, it was correctly decided, that's what makes america great? >> yeah. i never talked constitutional issues with my dad but my dad believed in equality and everyone should be treated equally and that's where i learned that important lesson. >> mr. collins, do you think brown versus board was correctly decided? >> brown versus board of education is one of the most important landmark decisions of the supreme court that consigned the separate but equal doctrine to juris prudence. as a nominee as i said, what would be an inferior court to
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the one supreme court i'm not going to purport to undertake to grade the court's homework. they would grade mine if i'm fortunate enough to be confirmed. >> i'm going to suggest to the administration that they just give you a sort of maybe a sign that you can hold up saying, answer one, answer two, because i'm receiving the same answer from every judicial nominee to that question whether you believe that these two landmark decisions, they are landmark decision, were correctly decided. i'm just at a loss to understand why no nominee is agreeing to answer the question and how every nominee is using almost exactly the same language to avoid answering it. i think it is unfortunate because i think we ought to have free and open answers, particularly on that kind of
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moral as well as legal question. let me ask you, mr. lee, among your writings, you said in 1994, quote, while most people can agree that gays should be accorded respect and equal rights the creation of another ism like racism is another way to portray people as victims in need of ref ren shall treatment, end quote, you went on to call the oppression of lbgtq people a, quote, quasi marxist paradigm of the oppressed and the oppressor. maybe you can explain that to us. >> thank you, senator. a lot of my cleej era writings were basically my gut reaction based on my experiences as an adolescent immigrant growing up
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in l.a. and part of the things, you know, my dad always taught me was, you know, america's a generous country, it's free, and you can do whatever you want. that was kind of my framework. part of it when i came into college was some of the professors seemed to dwell only on the negative parts -- >> i'm asking you, do you think that discrimination or oppression against lbgtq people is nearly a marxist paradigm? >> absolutely not, senator. if you look at my 20-year track record i've done pro bono cases on behalf of lbgt individuals and been very active in recruiting lbgt individuals to our firm. in fact, one of the things i'm proud of is, you know, when we helped open our l.a. office we had a diverse group of people. one thing we noticed with you, we didn't have any lbgt attorneys. one of the things i did was i worked with people in our other
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offices, lbgt lawyers, and i had them come to l.a. and we reached out to outlaw, lbgt groups and held a forum to recruit more -- >> why would you write that? because of ignorance? >> again, i think when i wrote that it was really criticism of some of the professors i had where they seemed to dwell so much on the bad things america did and there are plenty, we foe that from our history books, never talked about the good things that america has done as well, so that was kind of my gut reaction. >> you would disavow that. >> yes. i think when i was young i -- my views weren't nuanced. when you're young your views aren't nuanced and don't understand the complexity of the world. a lot of times you base it on your narrow personal experience and as you get older you realize the world is much more -- it's bigger, richer, more complex than based on your narrow experiences as a kid. that's one of the things i've learned as i've gotten older. >> mr. collins, let me just
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conclude asking you about the brief that you wrote. you argued that restrictions on tobacco ads and sales within a thousand feet of schools and playgrounds violated tobacco companies' first amendment rights. do you think corporations have rights under the constitution? >> actually, the -- my client in that case it was invalidated on preemption grounds based on the federal cigarette labeling and advertising act. the court held it was preempted and also held with respect to the other parties, the cigar -- >> let me ask you, and there are some interesting issues on preemption, but i only have a few moments. do you think corporations have constitutional rights just like ordinary american citizens? >> the court held that the petitioner in's in that case did have a first amendment right to communicate in commercial speech
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on the availability of the product. >> do you think, though, that corporations have rights that are comparable to individual citizens? are they the same under the first amendment. >> as i said, the court held that the petitioner ins who were corporations did have a first amendment right to make that -- >> what about your beliefs though? >> i would follow the precedent of the supreme court on that issue and -- >> so you don't have any beliefs on that issue? >> well, again, i don't think it's appropriate for me to sort of grade their homework. i would follow what they've established -- >> you don't think it's appropriate to tell us anything about your personal beliefs? >> i told you what i would -- i did answer questions about my general approach to how i would approach juris prudence but to answer questions where the court has held this is what the law is, a corporation does have the right under the first amendment to commercial speech to say whether i think that's wrong i don't think that's appropriate for me to do. >> thank you, mr. chairman. >> thank you. i'm -- senator kenny is next, i will give you my two cents worth
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about how this works. citizens united are you both familiar with the case? >> yes, senator. >> if somebody tried to change the supreme court ruling f there was a case in controversy that worked its way up through the court system, would you expect the supreme court to hear the other side as to why you should reconsider citizens united? >> if the court -- >> you would be be bound by it, right? >> i would be bound by it. >> if somebody in california wanted to challenge citizens united, do you feel like you would be be bound by it if it was squarely on point, both of you? >> yes, senator. >> same for row v. raid wade. >> absolutely. >> is it okay to challenge citizens ute united to the supreme court? if the supreme court wanted to take a case they could do that, couldn't they? >> yes, but, you know, the court
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has said in the rodriguez case that where a controlling precedent is on point even if a lower court judge thinks that other cases of the supreme court have undermined its premises, the obligation of lower court judges is to follow the case on point and to apply it leaving it to the court the prerogative to overrule its own decision. >> my point is simple. dread scott was overruled. brown versus board of education. there is a legal process where the court can reconsider precedent, do you agree with that? >> yes. >> yes. >> does that apply to every case ever decided by the supreme court? >> no. the court generally indicates when it's willing to reconsider. >> they decide. >> exactly. they have, for example -- >> if they want to revisit brown versus board of education they can do so, if they can find a case in controversy that would come before them. i can't imagine a jurisdiction
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of the country doing that, that would want to go back to the good old days of se greedation but what we're talking about is not what you believe about abortion, what you believe about guns, what you believe about life in general, you're going to be judges and i want the whole country to know that there is a system in place that if you have a problem with the way the law is written, statutorily or a problem with the constitutional precedent, if you think citizens united was wrong, there may be a day where the court will revisit that. i hope they do. there are people believing that roe v. wade needs to be revisited, that it was wrong. there are advocates and they have a right to make the case. judges will decide at the supreme court level whether or not to revisit citizens united, roe v. wade or anything else. so an appellate judge from my point of view, i'm clearly not
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the smartest person in this room, you're going to be hearing cases and controversies before you and when there's a precedent on point whether you like it or not, you're going to apply it, right? >> correct. >> yes. >> same for you? >> yes, senator. >> now when it comes to a statute about when a woman can decide to become pregnant do you think she has that right, not the employer? is that what you're saying, mr. lee? >> yes. >> a lot of people believe that when it comes to terminating life of the child, that's a different situation. do you understand where they're coming from? >> yes, senator. >> thank you. >> senator kennedy. >> i think, mr. chairman, senator [ inaudible ] was next. >> i'm sorry. >> she came back. yeah. >> thank you, mr. chairman, thank you, senator. mr. lee, you've been nominated to serve on the ninth circuit court of appeals and congratulations on that.
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while investigate yovetting you i've had a chance to review your work both as a private attorney and your service while working within the government and mr. lee, i believe there is no doubt that you have the experience to serve on the ninth circuit and from your work in this very committee to the bush white house you've demonstrated a clear commitment to public service. you've also built an extensive career in private civil litigation where you served as lead counsel in a number of class actions regarding deceptive marketing. you are no stranger to the courtroom. and that being said, though, there is more that goes on into being an appellate judge in the united states, the mere qualifications and job history. a qualified judge in my opinion has to be able to set aside preconceived notions or beliefs while also holding a commitment to values that we as a country do hold so dear. some might call this tem perment
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but you could call it character. mr. lee, while in college you wrote about a case of shaurmts sexual harassment, i know this has been brought up but i would like to hear about it, this was on the campus of cornell university involving a professor and i've had chance to vreview some of your writings and would like to ask you a few questions about it and feel free to delve in deeper here if you would like. in your writings you expressed a belief of the credibility of survivors and is that a belief you still hold? >> i do not, senator. >> we had a very good discussion about that in my office and i appreciate that. if a similar situation involving sexual harassment played out today in your law firm, how would your thinking be different? >> absolutely, senator. i think you have to take any allegations very, very seriously. i think that is something we didn't do in the past.
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part of it we didn't hear about it. i think we now know why we didn't hear much about it. i think unfortunately a lot of people were skeptical of it. i think it's very important to encourage people to come forward if they're being mistreated or harassed and listen to them and take the allegations very seriously and investigate them. >> very good. can you then describe how your thinking on the topic of sexual harassment has evolved from the time that you were in college to where you stand today? >> thank you, senator, for that question. when i wrote that article i was 19 years old. i never had been in the workplace. i really didn't know how the workplace works, the dynamics, the need for people to work and continue working even if they face mistreatment and i was incredibly naive about that. and over the past 25 years, you know, being in the workplace, you see how the power dynamic works and how people stay at
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jobs because they need that job. the most revealing thing that we've learned is how pervasive it is and the metoo movement. not only that we learned that even good people, people we admire, and the professor in question was someone who i admired and trusted and i wanted to defend him, but what we learned is even people we trusd and admired can commit these awful things. i learned that, you know, from my wife. my wife i think i mentioned to you, my wife and i share everything. we always call each other face time, texting, she may be texting me now i'm slouching too much. it was only recently she told me she faced mistreatment and she has dedicated her life to public service and working at non-profits and i mean these are people you think who dedicate their lives to helping others and you would think they would treat other employees well, but that's not the case. i think that's one of these
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eye-opening things we've learned over the past few years and over the past 25 years for me personally. being in the workforce, it's opened my eyes and, you know, i don't have those naive beliefs i had as a teenager. >> and thank you for that because i think it is important that we understand how our life does change through those years and how we can start as a young enthusiastic, maybe in your words, naive youngster, young teenager, but then through the course of your work experiences and your time involved with other types of activities, it has opened your eyes. we know that survivors do need to come forward and they need to be heard. but those life experiences change the way we view different circumstances. i know that senator cotton mentioned that you have children as well. we want to make sure that our children are able to experience life in the fullest and have that need to be heard if
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something should happen. as parents we want the best for our children and i know you had expressed that in our one-on-one meeting as well. i appreciate you coming forward and explaining to us the dynamics of where you were then and where you are today and the time that i was able to spend with you, in my office, it was very powerful for me to see that you were so humble and so generous with others that have gone through sexual assaults and so thank you for that. i do appreciate you explang that and being very heartfelt about how you are today and how you arrived at your thinking. i appreciate the time with you. i know my time has expired. i appreciate you explaining it. >> senator harris. >> thank you. mr. lee, i've heard you acknowledge that your college writings were immature and not reflective of how you think today.
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but you also have more recent writings. in 2007 you co-wrote an article defending laws that prohibit people from voting if they've been convicted as a crime. as a practicing attorney you submitted an amicus brief defending the constitutionality of one such law in new york. according to the sentencing project in 2010, one out of every 13 black voters in the united states has lost the right to vote understand laws that disenfranchise individuals convicted of a crime. by contrast, only one out of 56 non-black voters have been disenfranchised. based on the evidence, do you believe that these laws have a desperate impact on african-americans? >> senator, from statistics i've seen, they do suggest there is an impact. >> do you believe that desperate impact in relevant in deciding whether a law that disenfrizing an individual should be upheld? >> i think that's an issue
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courts are deciding on that. >> what's your perspective. >> senator, again, i will follow the precedent, whatever it may be, as a judicial nominee, i think it inappropriate to opine on issues that may come up before me if i'm confirmed. >> do you believe that the court should consider desperate impact on specific populations and what might result as a conquensh of that ruling? >> do you agree with that? >> senator, would faithfully follow all precedent. >> is there precedent dictating whether or not the court should consider desperate impact when issuing a ruling? >> senator, i will follow all precedent. >> is there precedent in this regard? >> senator, i can't recall. at least an employment context i believe desperate impact is an analysis in deciding discrimination cases and employment context, senator. >> do you believe there is precedent on this issue of the
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impact on african-american voters, on the issue that you wrote about in 2007? >> i believe there is some. i think courts are working through it and i think the case you're referring to is an amicus brief i worked on as an associate representing a widow of a police officer who was murdered and the person who murdered the police officer sued the state of new york to be able to vote in prison while he was serving his life sentence. we were representing that widow and the widow had very strong feelings, obviously saying -- >> but you as a lawyer, took a position on a law and so i'm asking, as a consequence of data and fact that tell us there will be a desperate impact on specific populations, i'm interested to know if you are going to take those types of information into account when issuing rulings if you're confirmed?
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>> senator, any time there is potentially discriminatory issues it's a concern to me. i think it should be a concern to everyone. obviously, you know, i have to look at the precedent in the circuit and see what it is. >> have you ever take an case challenging the constitutionality of laws that strip people of voting rights who have been convicted of a crime? >> i have not, senator. >> and in 2005, as a practicing lawyer, you wrote an article titled "illegals versus legals" and the piece you criticized the george w. bush administration and its efforts to allow undocumented immigrants to work legally in the united states. you wroe, quote, describing illegal immigrants hard working men and women pursuing better lives president bush blurs the distinction. do you believe an immigrant status has any bearing on his or her work ethic? >> absolutely not, senator. >> and is it your view that we
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should never refer to undocumented immigrants as hard working because that paints them in a sympathetic light? >> no, senator. my point was previously in the past, congress in the '90s had defended legal immigration by drawing a distinction and the point of that article was by blurring the distinction you may hurt legal immigration if the public views them the same. i wasn't taking a position. i was describing the politics of that. >> when you were in law school you wrote an article entitled untruth in academia as an example of what you called, quote, epidemic lying in academia that on most college campuses professors repeat the mantra one in four girls is a victim of rape or attempted rape. on what basis did you question the accuracy of the statistic? >> senator, i was quoting and summarizing a professor named christina hoff summers who had written about that. senator, sitting here today, i
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wouldn't write that because frankly i don't know, you know, whether -- what professor summers had written was true. i summarized that obviously, senator, this is issues of sexual assault an important issue as a father of two young daughters, i wouldn't want anything bad to happen to them and senator, i can tell you you know, a close family member became a single mother after ending an abusive relationship and i've seen firsthand the turmoil it causes and the most painful thing about it is this family member didn't tell me or my mom or anyone else or other family members because that was cult tour. you didn't tell anybody. hopefully things are changing now, and it's an issue i take seriously, senator. >> thank you. >> thank you. now senator. >> thank you, mr. chairman. welcome, gentlemen.
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congratulations. i remind you, of course, you're both under oath. i'm going to try to scrape away a little of the innuendo here today. do you -- either of you hate black people? >> absolutely not, senator. >> do either of you hate asians? >> no, senator. >> of course not. >> do either of you hate women. >> no senator. >> no. do either of you hate homosexuals? >> no. >> absolutely not, senator. >> do either of you hate transgender people? >> no. >> absolutely not. >> you're under oath now. do either of you think racially separate but reportedly equal schools are moral? >> no. >> they are not moral. >> they're abhorrent. >> do either of you support sexual violence in the work place or anywhere else. >> absolutely not. >> do either of you hate little warm puppies?
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>> i didn't hear. >> do either of you hate little warm puppies? >> no. i love my dog actually. >> we got that out of the way. i want to talk about, mr. lee, the actually it's professor lee, professor, i want to talk a little bit about the documents you turned over. you turned over a 500 pages? >> i did, senator. >> basically two novels? >> yes, senator. >> and they ask you for documents from papers you've written from college, post-college and in high school, is that right? >> yes, senator. >> how many hours did you spend putting all these documents together, the first time? >> i spent many, many hours. >> how many. >> goodness. dozens of hours looking for them. >> okay. the documents that you didn't turn over, were they on the internet? >> a couple were, but they were on a private server that, again,
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wasn't you know, you know, we weren't aware of. >> who found them? >> i believe the department of justice working with me we found them. >> okay. >> and you turned those over? >> yes. >> so we have everything now? >> yes, senator. >> okay. you talked about being in college. and i think you said -- and what you wrote in college, i think you said, i didn't know anything. but you wanted to know more, didn't you? >> i did, senator. >> what was your gpa at corn until. >> it was 4.08. >> on what kind of scale? >> i think if you got -- my mom will be proud of this, but i think if you got an a-plus you got a 4.3, an a, 4.0. >> you made all a snz. >> i did. >> did you make a b? >> i did not, senator. >> you'll never be a senator.
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>> you spend a lot of time reading and thinking and debating? >> i did. >> isn't that -- is that what college is supposed to be about, making people think not making them feel comfortable? >> even if i didn't know all the facts i wanted to learn things and maybe sometimes overzealous way but i try to talk and debate with lots of people. >> did you test your arguments against -- your assumptions against the arguments of others? >> i did, senator. >> did you believe the same things when you left cornell that you did when you entered cornell? >> i did not, senator. >> okay. geez, i thought that was the purpose of college? do you consider that a bad thing? >> no, senator. i think college is a time of experimentation. obviously, you know, certain things i regret writing because i didn't know enough, but it's -- it was a learning process for me. >> let me -- i don't want to go
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too far over. let me ask you kind of a meta physical question. yeah. mr. collins, i've kind of neglected you over there. what is your definition of justice? >> my definition of justice? it would be to have the law fairly and faithfully applied to my situation. i would want f i were a litigant, i would want the court to give me my rights in accordance with the laws as set down. >> what if those laws are wrong? >> if those laws are wrong, then we have a political process whereby people can ask for them to be changed, but in the courts you have to follow the laws as written and the precedence as handed down. >> what about you, professor? >> senator, i think it's justice
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is treating people equally, no matter where they come from, who they may be, and treat them in an equal fashion. >> i think you both are right. i think justice is when people get what they deserve. and let me -- >> careful here. >> and let me explain what i mean by that. it's broader than just crime and punishment. i think the people in tibet, for example, deserve to be able to worship their god. i think it's unjust what china does to them. i think if someone rapes somebody, they deserve to be punished. equally. sentences commensurate with the crime and fairly applied and you try as much as you can to treat everybody equally in equal
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circumstances. i think, would you agree with me, and if you don't that's cool, a nonviolent crime can do as much damage as a violent crime? >> it can, senator. i mean, a serious fraud, for example, of an elderly person can have a devastating impact. >> you mentioned earlier, mr. collins, about in the context of criminal justice, i don't want to take it out of context, but we need to do better with nonviolent crime, that is right? >> well, i mean, it's ultimately always up to the congress to refine the sentencing system and i think there's been a lot more thought put in, certainly in the dozen years since i last testified on these matters about how to change those to reflect our current understanding of -- >> these parents that just cheated, that just bought their kids' way into college, i read the indictment last night, i got 80% of the way through it.
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it's long. make you want to scream. make you want to heave. i don't know if you can scream and throw up at the same time, but that's nonviolent. do you think they should be punished? >> well, their case will be presented to the court which will then, you know, decide the issues in accordance with the law -- >> that's a diplomatic answer. i think they should be punished. thanks, mr. chair. >> senator whitehouse. >> thank you, chairman. before i ask questions of the witnesses, i wanted to bring up something that has transpired since miss rao's hearing that to me calls into question how truthful she was with the committee. i know that virtually every standard and norm and practice of this committee has been
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broken through in the mad rush to confirm all these nominees, but i do want to at least remark on what i think is a very significant lack of candor on two subjects. ranking member feinstein and i asked questions for the record, the written questions, that come after the hearing, regarding the funding of an organization called the center for the study of the administrative state that miss rao ran. we asked specifically about the koch foundation and the federalist society and anonymous donors and to senator feinstein, police rao responded to the best of my knowledge the senator did not receive money from the koch foundation or federalist society end quote and to me she responded to my knowledge the center for the study of administrative was not funded with the koch administration or
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an anonymous donor. okay. we take that as her statement. but then we find through documents that were released through foy ya, the freedom of information act, that the center for the study of the administrative state did receive financial support from both the charles koch foundation and from an anonymous donor. in fact, in 12016 george mason university received a $10 million from the koch foundation and a $20 million donation earmarked with support for her krernts for the study of the administrative state as a condition of the gift. "the new york times" has verified this reporting, quote, a $20 million gift from an anonymous donor plus $10 million from mr. koch's foundation according to the university documents the agreement called for bolstering miss rao's center. separately, it's a minor matter, but the dean of the law school made it clear that the center
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for the study of administrative state received $300,000 in funding from an anonymous donor. so i know people don't want to talk about all of this, but this business of big special interests, funding the federalist society which picks the nominee, funding the judicial crisis network which campaigns the nominee funding these am my nous entities before the courts, and now not being told what appears to be the -- apparently not being told the truth about this to me it's a real matter of concern if we can't expect people who answer our questions for the record to tell us the truth, that's a very important hole in the process that we all participate in here. the second has to do with her contact with the federalist society about faculty candidates at the center for the administrative state and asked did she have contact with the
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federalist society when considering potential faculty candidates she responded no and then she went on to say that law school's hiring committee occasionally quoting here received recommendations from the faculty division of the federalist society. which what she failed to disclose she was a member of the faculty division of the federalist society during this period. she was basically talking to herself on this subject. i don't know how that is not pertinent and disclosable information in response to that question. to me, it signals that nominees in this administration aren't taking this committee process very seriously because it is a treadmill. it's on auto mootic pilot everybody goes through at the circuit level and particularly at the d.c. circuit. i want to make a record of that because i'm very concerned about what is happening to this committee and to me this demands
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further clarification and explanation. my question is to mr. collins, and it is this. >> that will not count against your time. you can -- >> thank you. >> pos sit a fossil fuel industry party with a case before you, and explain to me how the adversary of that fossil fuel industry party could conceive they will get a fair hearing from you and specifically what your recusal standard will be when fossil fuel industry corporations, come before you and fossil fuel industry arguments are made to you? >> i identified, senator, in my response to the questionnaire that cases that involved former clients of mine would be an area
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that would require an inquiry -- >> that's pretty obvious. >> whether or not it was a case in which i should recuse under the applicable standards. i would consult those standards in light of the particular case and make the appropriate judgment and if that is to recuse in that case i would do so. >> would it matter to you that a party or an attorney came before you with a feeling they were dead on arrival in front of you because of your history representing the fossil fuel industry and you couldn't give them a fair shot? >> i would hope that they would not have -- if i had not -- if i had reached the judgment that i wasn't required to recuse, i would hope that they would not have that. i know that the standard looks at what a reasonable person who knows the circumstances would conclude, whether there was an appearance of impartiality or a loss of impartiality and the circumstance. i agree that the appearance of impartiality is often as important as the substance.
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>> let me read you something you wrote on behalf of exxonmobil. you wrote climate change allegedly results from the aggregate effects of greenhouse gas emissions from billions of sources around the world accumulating in the global atmosphere in the course of centuries and thus cannot be attributed to the defendant energy companies. so let me go through some pieces of that. why did you say allegedly? >> the reason why purely the procedural posture. it was on our rule 12 motion. it is a vir verbal tick of rules and rule 12 motions you say allegedly. that's what we were doing. >> let's look at the facts. do you actually believe that climate change as we are trying to reckon with it, results from the aggregate effects of billions of sources around the world accumulating in the global atmosphere over the course of centuries or is it more
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accurate, factually, to say that climate change we're trying to reckon with comes from carbon emissions burned by fossil fuels that has taken place entirely in the last century? >> i continue right now today to be counsel in cases that involve alleged tort claims that are asserted arising from climate change and so i don't think it would be appropriate for me to express a personal view on the underlying facts in a matter in which -- >> you did. here's what you said. i'm asking you to defend it. it looks to me like it's false. if you're willing to say something that's false as the concern about climate change something relates to aggregate effects of greenhouse gas emissions from billions of sources over the course of centuries when that is distinctly not the problem when it is distinctly attributable to emissions from fossil fuel combustion, i think i'm entitled to challenge that to you and ask you to defend it if you're
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unwilling to defend it it tells me a lot. >> the question you're referring to the statement in the brief is the aggregate contribution of all carbon dioxide and then the question in the litigation is, the share of the contribution from the energy industry and how much that contributes to it. it's not false to say that all of the carbon dioxide contributes to the problem. the issue was the amount of the contribution and whether there should be tort liability for that. >> i think it is false to attribute what we discuss as climate change using that word in its normal parlens to things that happened hundreds or thousands of years ago when we all know perfectly well, it's happened since the industrial revolution and now because of who your client was, that was the thing to say, but i think it is actually factually false and misleading to say that because had those prior conditions
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continued, absent the change of all this added carbon dioxide from fossil fuel we wouldn't be having a conversation about climate change. my time is up. that's why it's going to be hard for people coming before you as a judge to believe if a fossil fuel company is on the other side they'll have a shot with you and i think that's not appropriate for people approaching the united states courtrooms. >> did you want to say anything? >> the only thing i would add is that i'm not sure the other side in the case disputed that all of the greenhouse gasses that are emitted into the atmosphere and that remain there now from all of the sources intermix and contribute to the global phenomena of global warming. that statement that you read, senator, that's all that that said. i don't think that's false or anyone disputed it. the heart of the litigation was the amount of contribution of
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greenhouse gasses from the energy industry and whether that should give rise to tort liability. it was legal issue about the availability of tort remedies for that. >> senator lee. >> mr. collins, in the context of a rule 12 b6 motion to dismiss, what's at issue are the facts as alleged, the allegations, and you frequently refer to allegations as such in the context of a motion to dismiss, is that right? >> invariably i do that. >> how are those allegations treated? in the context of a rule 12 b6 motion to dismiss are you there to address or resolve disputed issues to real fact? >> no senator. >> can that occur in the context. >> you have to convert it into a summary judgment to do that. >> you would be completely different stage of litigation.
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>> would be correct. >> which facts have been gathered in the discovery process. >> correct. >> so it would be impossible to refer to facts alleged without referring to them as allegations? >> as i said, it's uniformly my practice to say allegedly no matter what the facts were, that's how you do it in a rule 12 possession. >> you've served as a law clerk at multiple levels of the federal court system. at any time during your clerkships did you conclude that federal court system is corrupt? >> never, senator. >> in your experience, in your career as an attorney, did you ever see evidence of corruption? >> no, senator. >> is it your position that an individual who has been nominated to serve as a federal judge in the u.s. court system, needs to place at issue his or her personal political views?
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>> no. not to take out personal political or policy views to the bench. that's not the role of a judge. it's very different. it really is to follow the law, the precedent, the statutes as written and the precedence established by the supreme court. the other precedence established by the ninth circuit, that's what i would be bound to follow. >> right. >> "new york times" versus sullivan involved a corporation, didn't it? >> the new york "timtimes compa was the petitioner. >> "the new york times" a corporation had rights protected under the first amendment? >> that's correct, senator. >> as a lawyer, you're trained to find ambiguity, lawyers deal in ambiguity and harness ambiguity in the law to make legal arguments for their client. as a judge, of course, your role is a little bit different.
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sometimes your role involves identifying ambiguity and one set of rules might apply if there's ambiguity in the statute and another set if there's not. do you think you're any more or less likely than the average lawyer who becomes a judge to identify ambiguity in the statutory text. >> no. i think that my -- i've had a lot of experience with briefing issues of stat attorney general interpretation -- statutory interpretation and relative cannons and could apply those. >> thank you. >> mr. lee, i regretted a few minutes ago that one of my colleagues invoked the memory of your late father in connection with questions. i consider that inappropriate and call upon my colleague to apologize for that. having lost my father 23 years ago this week, i relate to the difficulty that can come to
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anyone when someone tries to invoke the memory of a departed loved one in an effort to shame, humiliate, embarrass, retaliate against someone with whom they disagree. as long as the name of your late father has been invoked, i wanted to invite you if you're interested to tell us a little bit about how your father informed your life about how you became a better person as a result of his life and his example, and his choices throughout his life and his experiences as your father. >> thank you, senator, for those kind words. my father was my hero the hardest working man, and whenever we faced difficulties he always tried to uplift us all. i think of one experience about 35 years ago, i was wanted to go to disney land and pestered my parents to take me and finally agreed to take me to disney land with my three sisters but to
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save money they decided to take korean food, rice, with curry vegetables wrapped up in seaweed, 35 years ago, that kind of food is exotic. when we were there and opened up our food for lunch, you know, again, little kids started coming up and some said smelled, others said it looked like feces, used a different word, and one of them i remember was, you know, pointed to my parents making faux asian sounding names and pulling their eyes and when a kid, smallest things seem like the world to you. i remember next day, maybe because i was young or felt helpless i blamed my dad for this thing and said, i said i want to go back, i want to go back to korea and said, you know, you never asked us if we wanted to come here move to a new country. and, you know, my dad was a stoke man but said i know it's tough for you, tough on your sister, tough on me and your mom, but one thing i always remember and, you know, maybe i didn't take it as seriously when
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younger but something i remembered and learned more as i got older he said, i know it's tough here but you don't want to go back because things aren't fair there. he said, you know, the families that control the conglomerates there, he said, they control the government, they control the economy, they control the laws. so you're not going to get a fair shot there. but he said here in america, things are different. he said, it doesn't matter that you're not white, doesn't matter you weren't born here, doesn't matter that our family doesn't have wealth or power, everyone here is treated equally. and, you know, my dad wasn't a lawyer. he never read the federalist papers. but he had a gut understanding of what makes our country and our constitution so great, so powerful, and so unique in the world. and i've always remembered that. senator, i know sometimes we haven't lived up to those ideals that my dad believed in and
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that's embodied in our constitution, that's clear when we read our history books, but i think, you know, all of us try to strive to live up to those ideals despite our different backgrounds and different political views. i'm lucky enough to be confirmed as a judge to the only will i take an oath to the constitution, but i'll always try to honor the faith that my dad had in america and make him proud. >> i'm confident he would be proud of you. thank you. >> thank you. i just for the record, he miss rao submitted her answers to the written questions on february 11th. senator durbin. >> thank you, mr. chairman. mr. lee, thank you for sharing that story about your father and your family. it was an important part of an insight into who you are and where you came from. that is really as you both should know by now, what this is all about. what senator kennedy listed five
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or six basic questions, if that were all it took for us to decide the fate of a nominee, these hearings would be a lot shorter than they are. but what we try to do is to go beyond the simple question about a feeling toward a group or issue, and get some insight too your character. insight into your values to project what you might do when given an awesome degree of power as a judge to literally decide a person's fate that comes before you. i think that is why we take the time to look back in history to try to assemble in our minds who you really are. mr. lee, you were a prolific writer in cornell in the early stage of your life. you -- i don't know how you made time for class because you were generating essays on every political topic of the day and most of them leaned in one
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direction. they were extreme from my point of view, from the right wing perspective, and in some points were negative about certain groups and some points mocking certain groups in our society. they were harsh and some of them as i indicated were mean. and what you've told us was that you had a major blind spot, those are your words, and that there has been change. tell me about that road to damascus. tell me what changed in your life that took you from an extreme, harsh point of view on the right to where you consider yourself today? >> i understand your concerns and i appreciate that question. senator, a lot of the things i wrote when i was young 18 or 19, again part of it was lack of maturity when you're young you think you know everything and not only that you think everyone else is wrong and only if i can speak loudly and everyone hears i can solve all the world's problem that everyone else can't
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solve. clearly, you know, that's not the case as you get older. you realize you know very little when you're young. part of it also is when you're young you think being snarky is being young, you are snarky and witty. i can tell you through my life experiences the last 25 years, there have been so many good, bad, that taught me and shaped me into a more emp thetic and caring and understanding person, you know, obviously, the most obvious one is becoming a husband and father. i think it changes you for the better. my wife makes me a better person every day, more sensitive issues, having two daughters, you are more sensitive to issues because of the thought my daughters wouldn't be treated equally makes my stomach churn. other things professionally. i have done a lot of pro bono
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work over my career. most of them have been for the poor and for members of marginalized groups. that experience, you spend a lot of time with clients. it opens your eyes a lot. you know certain things, abstract things, certain statistics. i remember representing an african-american individual what was beaten. we went to trial. again, you see the statistics about disparities, when he tells you, he gets afraid when he sees law enforcement, that hits you. when someone tells you that, it opens your eyes and opens your heart. so, on a professional level as well as a personal level, you learn these things as you get older. there are small things where, when i was a young lawyer in new york, i decided to volunteer, i love baseball, so i wanted to teach baseball and mentor kids.
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it was my love of baseball. i took the train to harlem, most are from the south bronx and east harlem. when ever i showed up, the kids were 8 or 9 years old, they come running to you with big smiles on their face. initially, i thought they think i'm really good in baseball. then you realize, the reason why they are so happy to see an individual, these kids don't have the support system that so many of us have and we have taken for granted. they are happy to see that. >> sorry to interrupt you. my time is up and i know what you are saying is heart felt and i understand the message. the point i want to get to is this, as i close, i will be quick in closing. most of us are looking for someone who is not only a good lawyer, but a good person because your power on the bench goes way beyond the laws, as far as i'm concerned. i am not one of these people, i
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hear it said on the committee so often that this is somehow the law. we know what's going to happen. it's not how the courts work. it's not how judges work. people bring a lot of things into the courtroom. part of what they bring are their life experiences and whether or not they can be emp thetic to someone standing before them. a legal team that is well respected by those who can afford good representation. the question is whether that person has a chance before you, whether you can look through that person's eyes and understand what the world looks like and whether looking up at the bench, looking at you, they are wondering, i'm cooked, i don't have a chance here. that's what this is about, to not guarantee your outcomes, but guarantee the thought process
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that is empathetic to that person. thank you, mr. chairman. >> if i could to build on what the senator said, i'm very sympathetic that -- there's what you say when you are young and there's what you do when you get here. i always look, it's not outcome determined. the aba ratings are important in terms of professional character. like sotomayer said in a speech, a latino woman will reach a better decision than a white male. she's racist. no. i found nobody to suggest when it came to doing her job as a judge, she would take that view toward the litigants in front of her. as a matter of fact, i think she's trying to say, you know, what you said. we all had different
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experiences. nobody with kagan or sotomayer suggested being a lawyer or advocate that they were unfair to their co-workers, that they held a grudge, that they were radical in their representation. the only thing i suggest to the committee about these two gentleman, i understand you would not pick either one of them, no democrat would. the people who work with you through these years have all said decent people who take a different position than i do and ethical. so, what knocks you out with me is not your philosophy on the personal side, i'm a qualifications guy. if i believe you are holding a grudge against something or somebody, then those are the kind of people we want to knock out. we have had two. i don't want to tell you who they were. the reason i feel comfortable is because when you look at who
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these gentlemen have worked with, it's pretty unanimous. it's not whether i agree with them, they are just decent lawyers and ethical people. to me, on the people side, that's what i'm looking for. on the philosophical side, i definitely understand you disagree with the judicial philosophy. that, to me, i did that with sotomayer and kagan, but it wasn't an outcome determined by me. senator blackburn. >> thank you, mr. chairman and thank you for those remarks to put our wraparound all of this hearing. mr. collins, are you still teaching at loyola or is that in the past? >> i was invited to come back again, but because of -- >> okay. let me ask you this, if you were teaching and you have a class in front of you, what would you advise them on their professional conduct after going
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through this process that you are going through right now? >> well, i would tell them the same thing that, you know, i would have said before, which is that, you know, they need to understand the law, work hard and they need to always be honest about their cases. they need to be honest about what the state of the law is, how strong the arguments are and honest about the facts and where the weaknesses in their case may be. >> okay. i appreciate that. i appreciate your family sitting there with you and enduring this questioning. i know they are going to be ready to get out of here and have lunch. they have been good and attentive. mr. lee, your family there, i think your mom is probably the chief momma in charge and probably does a very good job. i have appreciated you all being here. i know you did some work at the white house with the 9/11
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victims and i know that must have had an impact on your work and on your point of view, your world view. >> yes, senator. i was -- i started my career in new york when 9/11 occurred and you, you know, it's something obviously, if you were of age at that time affects you and the victims and people who were affected and the strength that you see is so inspiring. a lot of times, you, you know, at work you feel frustrated or think it's tough, then you hear the survivors and people who suffered so much and they are so strong. it's very inspiring. >> i would think that, coupled with the pro bono work that you have done has had an impact on the empathy that you bring to
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helping people. i would think that would impact your ability to walk in another person's shoes for a little bit. there was one case in your pro bono work where there was a death row inmate that wanted dna tested. i think that was covered in the new york times. i appreciated reading about that. was that your most impactful case or was there another? >> i think that was an important case because there were serious allegations of racial bias that may have affected that case and obvious think stakes are huge. i think the most important impactful case, in a way, was representing an inmate who alleged he had been beaten by prison authorities. he was african-american. the prison authorities were all white. it went to trial. it was before an almost all white jury. i remember him telling me, i'm telling the truth, but i don't know if i'm going to get a fair
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shake, pointing to who the defendants are and the jury. frankly didn't know what to tell him other than we would do our best. we did win that case on a jury trial. the jury agreed with him and he was so happy. he said he'll take me out to lunch once he's released. he said he will take me out to lunch. it was very -- felt good about it. having more faith in our justice system. >> that's what you want. you want people to come before a judge and realize they are getting a fair shake. there are three things that i like to ask nominees. will you be fair and impartial on all of the issues that you consider, regardless of your personal beliefs? yes or no? >> absolutely, senator. >> absolutely, senator. >> thank you. will you promise to put aside any bias or views you took from a prior advocacy position? >> absolutely, senator. >> absolutely, senator.
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>> can you assure us you will apply the law and constitution equally to every part that comes before you in the courtroom? >> absolutely, senator. >> absolutely, yes, senator. >> thank you. i yield back. >> thank you chairman and thank you both for the opportunity to question and for your willingness to serve. if i might, professor lee, excuse me, mr. lee, first thank you for sharing the story of your father's optimism and determination and his faith in our nation. one of the things that makes our system work is rules and process. as a judge, you will be asked to enforce rules and process and, as an attorney, i'm obsessed with rules and process. as someone who useed a committee to see nominees, i was concerned with what i got on the background of which articles you
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provided and when. i realize views mature. things you wrote in college don't reflect your views today. i want to make sure i understood this. the number in the gap was striking to me. am i right that you did not provide literally dozens of articles that you, yourself wrote to the selection committee empanelled by the senators? >> senator, the questionnaire for the judicial advisory commission, i think is question 34a, asks for all legal writings. i provided my legal writings. i did not provide nonlegal writings i had written in college. i did not believe they are responsive. they asked for all writings, so i tried to get all of my writings. >> how many times did you have to supplement the questionnaire? >> it was several. it's frustrating. over the past couple weeks, you know, as we discovered
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additional articles and the nonpublic sources we supplemented around 50 or 60 pages. >> my sense here, ultimately, we have gotten 88 articles or writings from you and some of them, most of them, in fact, only 11 of those were initially submitted, so 77 of those were not submitted to the judicial nominating commission and the vast majority of them weren't when you were nominated. there were 47 writings added in january of 2019 and another five, then another 27, then another four, then another two, then another one. then, as recently as march 6th, seven more articles. part of what troubled me was hearing that these were relatively easily found by committee staff using a public search. can you assure us that we now have all of your published articles that we have the full record to look at?
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>> i believe so. i have submitted over 500 pages. i believe they are. these articles are from 20-25 years ago and, again, preinternet era. most of them were not on the internet. i didn't have a master index of everything i have written, even as a teenager. i believe i have collected everything. when we discovered it wasn't, we supplemented it. i apologize for the frustration it caused. >> the notes i have here, of the 45 that supple. ed the filing, five were from the same date, same public indication as other articles in the initial disclosure. to me, this was very concerning, just the number, the length, the difficulty. folks who i have, who are now sitting on the bench in delaware commented the questionnaire is very thorough, very long, but, frankly, i think it's important to respect that process. is it critical in your view for
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judges to be thorough and honest? >> it is, senator. >> one of the things you wrote and disclosed, this is a college article, but you said, prize of racism stems from isolated incidents and unreliable studies based on statistical -- i'm not sure if i'm pronouncing that word right. do you stand by that statement? >> i don't. obviously, discrimination is real. my family suffered it. i think some of the language that i used in college, again, at 18 or 19, you don't have a nuance. you are trying to express a gut feeling based on experiences or limited knowledge. so, you know, you don't understand the complexity of the world and, you know, i regret some of the language i used. >> thank you. let's jump forward to something from 2001. you are not 18. you are not in college, you finished law school.
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you were a clerk. left leaning -- over the last three decades, what rights were you referring to and what should we conclude from that? >> thank you, senator. some of the things i was referring to, i think, there was the mentally ill who are freed from institutions. the purpose of that article, senator, was my concern that i'm a strong believer in pro bono as you have seen from my track record. most of my pro bono cases are representing individuals who are poor. my concern was that if too many lawyers take pro bono cases that are politically charged or sexy that people would lose support. people would not support pro bono. they view it as too political. if you see, later in that article, i mentioned that conservative groups are doing the same as well. i was concerned about that as well. if pro bono is seen as a vehicle
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for the left or the right, the general public and the legal profession may not support pro bono because it's viewed as a political tool. that was part of my view. >> your argument, your advocacy here, where it seems at least in the quote, you are arguing against a recognition of the broader understanding of rights. you are asserting your argument is we need folks to go out pro bono and handle workman-like day-to-day cases representing established rights, established claims and not seeking to advance a particular agenda? >> i don't know if i was saying it that broadly. it was my concern that too many pro bono cases involve politically charged issues people won't support it because it's too political. that was my concern at that time. >> thank you. let me ask, if i might, one question of you, mr. collins. in a 2002 speech, i'm quoting
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here, general technological advances by reduce the degree of privacy that existed when the fourth amendment was adopted. it has not just rapidly advanced, it has changed the frontier of everything and what data can and should be collected. do you believe in the right, the jurnd lying right, the recognition of a right to be safe in one's papers has decreased because of the tech know logical advances? >> no, the kind of point i was making is validated by the, for example, the supreme court's decision with riley and carpenter, which has made, you know, changes from prior precedent in the fourth amendment area with respect to search incident, arrest, smith v. maryland in light of the
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privacy concerns by the technological changes. that's the kind of point i was making. those cases validate that. >> thank you, mr. collins. thank you, mr. lee. appreciate the opportunity to question you today. thank you, mr. chairman. >> senator klobuchar, we have eight minutes left on the vote. >> i better hurry. >> no, i don't want you to hurry. >> it's okay. i would rather just do it. i'll just do five minutes. they will tell me if i can't make it and i'll put the rest on the record. mr. collins, i know you talked about this with senator finestein. you drafted a brief before the supreme court the rumsfeld in which a detainee challenged when they convened to conspire with al qaeda. you argued the commander in chief in power, the president to
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establish military commissions, the supreme court disagreed. what do you believe are the limitations on the president's commander in chief powers in a time of war? >> well, the particular issue that we addressed in that brief really just went to sort of what was the scope of the authority to invoke military commissions in a sort of prestatutory period. we went through the history. it was primarily historical going through the history of military commissions. ultimately, given how the court disposed of the case, it proved to be irrelevant. >> my question is what you believe are the limitations on the present commander in chief powers. >> i don't think it would be appropriate for me, sitting here today, to talk about the substance of that question. i have learned from the chairman's comment that i have not kept up with this area of the law because i was not aware
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they prohibited a trial of citizens, so i wouldn't address it off the top of my head. >> mr. lee, i understand you worked as an associate counsel and assistant to president george w. bush. according to an article, you were involved in the white house's response to inquiries of firing of several u.s. attorney's and helped evaluate the assertion of executive privilege. what vu taken from that and how will it affect the future? >> senator, what i learned was the balance you have to take into account between the legislative prerogatives and the legislature having oversight. it's a key role. there's counter value of being able to provide unfettered, legal advice within the executive branch. there's a tension between the two and you have to balance the two. you have to learn to accommodate and try to come up with a
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compromise deal in those situations. >> an opinion written by chief justice berger, from minnesota, u.s. v. nixon, they could not assert -- based on the general interest in confidentiality. do you believe that the court properly asserted jurisdiction to resolve it between president nixon and the special counsel? >> senator, i'm not -- i'm vaguely familiar with the case. obviously, it's an important decision. if i'm confirmed, i will follow it. >> in an article for the american enterprise in september, 2002, you criticized the use of impact claims, that allow plaintiffs to show a policy has a discriminatory effect. the supreme court repeatedly
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affirmed that impact claims are an important tool to protect against discrimination. can you talk about how you would hand handle an impact claim if you are a federal judge? >> obviously, the supreme court held the impact claim. it could be viable. i think there's a test, you know, provide dispairtive impact and the other side has to proper a reason to show other factors are involved. senator, obviously, i will faithfully follow all precedent. you have to take discrimination claims seriously. it has to be taken very seriously. >> mr. collins, you wrote a brief for hobby lobby and made an argument the first amendment free exercise is for profit. if corporations have a
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protective right to exercise religion, is it your right they can refuse to hire someone because of their sexual orientation or the religion they practice? >> the primary issue we addressed in that case was the statutory issue of what was the coverage of person within the meeting of the religious freedom act. that required some consideration of the subsidiary question of how they had been treated under the free exercise clause. we looked at one case where a corporation had been allowed to assert a claim. i don't think it would be appropriate for me, as these issues are working through the court to look at the open questions being litigated right now. >> thank you. i think i'll go vote. i'll do other questions on the record. >> thank you, senator klobuchar. i think that is it. we will hold it open for written records through march 20th.
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thank you very much. you both had consequential good and decent lives, i appreciate what you have done thus for for our country. i think, in both of your cases, the best is yet to come. hearing is adjourned.
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the u.s. house, today, begins debate on a resolution calling for the justice department to release special counsel robert mueller's final report on russian interference. a final vote is expected tomorrow. the u.s. senate is debating judicial nominations today and tomorrow, lawmakers vote on a resolution to block president trump's emergency declaration to allow him to build a border wall to mexico. the house is already passed that resolution. president trump says he will
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veto it. the house is live on c-span and the senate, live on c-span 2. the only thing we have to fear is fear itself. >> ask not what your country can do for you, ask what you can do for your country. >> and the people who knocked these buildings down will hear all of us sing. [ cheers and applause ] >> v-span's newest book, "the president's" rated the best and worst chief executives. the lives of the 44 american presidents, through stories gathered by interviews with noted presidential historians. explore the life events that shaped the leaders, challenges they faced and legacies they left behind. published by public affairs, it will be on shelves april 23rd.
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you can preorder your copy as a hard cover or e-book today at or wherever books o sold. acting white house budget director, russell vought testifies at a hearing this afternoon, regarding president trump's budget at 2:30 eastern on c-span hearing. this morning's confirmation hearing from president trump's judicial nominees. >> we are going to hear from two nominees today that the aba says are well qualified, daniel collins and mr. lee, introduced by senator cotton. neither had the blue slip return. i think you understand where i'm coming from on that. there's been a lot of consultation here. from my point of view, it's time to move on. in this case, mr., i guess it
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was lee, supplemented writings. you turned over 515 pages of writings. we found more, you turned in 61 pages, which is not unusual, i appreciate you doing that. we held up his hearing the first time because we received his materials late from the white house. they missed it by a day. i'm trying to let the white house know that our numbers matter. to get the background check done, we delayed it to make sure that was done. we've had supplemental writings submitted, from my point of view, the process has been fair. may not like the outcome of how this works, but i have tried to be sensitive that the background check did have holes in


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