tv Ninth Circuit Court of Appeals Confirmation Hearing CSPAN March 13, 2019 4:56pm-7:10pm EDT
>> now today's confirmation hearing for two of president trump's nominees to serve as judges on the ninth circuit court of appeals. they took questions on their judicial philosophy and applying supreme courses prekent. the committee is chaired by senator lindsey graham. senator graham: good morning. i believe senator cotton is here to make an introduction. we'll lead with you. senator cotton: thank you, mr. chairman. i am honored to introduce my old friend ken lee to be circuit judge for the court of appeals of the ninth circuit. i hope i haven't hereby doomed his chances. joining us today is ken's wife
melissa and his mother joyce. their girls, alexandra and sofia couldn't make it, sadly neither could his father stan who passed away in 2010 after a battle with cancer but i know how proud he is looking down on his son today, and for very good reason. the lees embody the american dream. stan and joyce left the economic and political turmoil of south korea in 1980, bringing with them a 4-year-old ken and his three sisters. they settled in the koreatown 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, fixing spray paint machines. his mother went to school at night to become an act ewe punth rhys. together their -- an acupuncturist. together they provided for the new family. ken watched his parents in those 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 top student in his major and then at harvard law. where we first met. ken was a third year student when i was a first year, so he didn't need to give me the time of day, but he did. ken gave me tips on classes, summer jobs and clerkships. he was kind and thoughtful, generous with his time and wisdom, even when there's nothing in it for him. ken even chose me a lot in basketball pickup games, so i have to condition fess ken is a much better lawyer than a basketball player but you don't need me to tell you that ken lee is an outstanding lawyer. an appellate courtship. service as counsel to president george w. bush, work on this committee during the confirmation of the chief justice, teaching law students at peeper -- at pepperdine and private practice at two of the
country's top firms. it's all there on the pain for the front of you. i'm here to speak to his character. he mentored minority students and coached youth baseball at harlem he does probono work. he helps the powerless, inmates abused by prison authorities, coptic christians fleeing persecution, homeowners facing foreclosure. the ken lee i knew 10 years ago -- those years ago is the same ken lee that stands before you. i understand some of you are upset about blue slips. some of ken's views may not be your cup of tea. that's fine. let me suggest that you disagree with him and just vote against him. ken is a good man he won't hold a grudge. which is more than we can say about most of us senators. but it's wrong to manufacture spurious, processed vows or to question his character have the
courage of your convictions, just say you disagree with him. we'd all 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 he is a brilliant lawyer and a man of high character. i trust the majority of the committee and the senate will support his nomination. i am proud to call him a friend and pretty soon, i will be proud to call him judge. >> i appreciate you coming to the committee. we are going to be hearing from o nominees that the a.b.a. says are well qualified. daniel collins and mr. lee. senator graham: i think you understand where i'm coming from. there has been a lot of consultation. from my point of view, it's time
to move on. lee is case, mr. supplemented writings. u turned over 515 pages of writings. 61 pages, which is not unusual and i appreciate you doing that. we held up the this hearing the rst time because we received his materials late from the white house and missed it by a day. so i'm trying to let the white house know that our numbers matter to get the background check down. we delayed it to make sure that was done. we have had supplemental writings submitted, from my point of view, the process has been fair. may not like the outcome of how this works but sensitive to the
that the background check did have holes in it and required to delay to get it done. i'd want that for us. missed the reporting date by a day. i know they have a lot going on at the white house, but we are going to hold to the time schedule and supplemental writings have been submitted and we appreciate that. so i feel like from the process point of view we have been fair to the committee. and it is now time to have the hearing. i'll turn it over to senator feinstein. senator feinstein: thanks, mr. chairman. i'm really concerned by the fact that there are no other members on our side here. 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 this action is to effectively kill the blue slips for the circuit court at least as long as the control is on your side. i have spoken at length on the importance of the blue slips, so i'm not going to restate everything i have said, but around here, what goes around, comes around. and the blue slip in the 25 years i have been on this committee, has been an effective way of ensuring that home state senators, regardless of party,
nominees whosehe decisions will directly impact their constituents. so i really regret that this hearing is being held when two blue slips from the state that this nominee will represent 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, despite repeated requests to do so. many of his writings 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 been previously
unidentified in the days before this hearing and over 18 months after he was interviewed by my bipartisan in-state committee. further, these articles were submitted only after my staff and the press identified writings that were missing. given these 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 these writings as they demonstrate very strong personal views on issues including immigration, affirmative action and voting rights. i have also previously indicated concerns about mr. collins' nomination to the ninth circuit. as senator harris and i noted in a joint press release, our in-state vetting issues with mr.
collins' temperment and rigid ti. our vetting process 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 bound dries, unquote. in reviewing mr. collins' record, there are additional concerns about the position he has taken on women's reproductive rights, the use of military commissions to try military combatants and rights of defendants. and questions on the 2006 patriot act that mr. solins 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 honoring blue state senators
of both parties, not just on district court nominations but on no, ma'am nages to the circuit as well. i hope you will do that and i hope 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 this side would attend. this is an important hearing. and i'm very concerned that our members are not present. thank you, mr. chairman. senator graham: senator blumenthal is present. if the nominees would come forward, please. both raise your right hand. you solemnly swear that the testimony you are about to give the testimony is the truth, the whole truth and nothing but the
truth. i will introduce mr. collins. mr. lee has been introduced. senator graham: j.d. from stanford served as editor of the stanford law review. he has had two clerkships with dorothy nielsen and clerked for justice scalia. he has extensive experience both in the public ap private sector and served as in the office of legal counsel. after clerking for justice scalia, united states state attorney in last and and trials. d eight jury and 2001, he joined the justice department and served as associate deputy attorney
general to combat child porn, child abuse and reform sentencing laws and played a key role in the issue of racial profiling. he also served as the chief privacy officer. officer. in 2003, he joined a law firm and practiced in a.m. at law and one of california's leading a.m. at lawyers. since 2015, mr. collins has been recognized by best lawyers in america for his a.m. at practice. in 2012, he was listed as one of the super lawyers, top rated lawyer for the entire country. chief justice roberts appointed him to the rules of evidence in 2014. he teaches a.m. at advocacy as an add junk professor at loyola
law school in los angeles and was rated well qualified by the a.b.a. ith that, mr. collins -- mr. collins: thank you chairman graham and ranking member feinstein for holding this hearing. and i would like to thank president trump for making the nomination and i would hope that i would earn the trust that's been repossessed in me. i would like to thank and introduce my family members starting with my beautiful wife who is behind me for now almost 20 years. she has been a source of joy, support, grace, love and laughter in my life. i would like to say that we were , as it were, match made by god mself, because we met in the
sanctuary in our parish church about 10 feet where we were later married. my wife was the cantor at the time. and i was bun of the electors and the electors sits next to the cantor and i did not always give the mass my full and undivided attention. i would like to introduce my three children who are also here. my oldest is john paul. he is 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 political and philosophical issues. he is also very compassionate man except if you face him on the text tennis court, his leftey serve will crush you like a bug.
then there is my daughter, a freshman in high school. she is also a great tennis player, captain of her volleyball team and starting lacrosse. she sings almost as beautifully as her mother and a great baker. she is multi talented. and my youngest son is sha mmp us and applying to high schools. his passion is baseball, both as a player, where he excels and as a fan of the los angeles dodgers, where he has had to experience the highs and the lows in the last few years of making it to the world series and not quite closing the deal. then i would like to introduce my siblings who are here, my brother tim, my sisters chris and jenny and my sister-in-law, marie and nephew harry and good friend of many years, mike
savage who flew in from california for this hearing. i'm sorry that my parents cannot 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, who is a very strong person and taught me the importance of education and good values. and i would be pleased to answer any questions you may have. mr. lee: i thank this committee and particularly chairman graham and ranking member feinstein and i thank senator cotton and the president for nominating me. before introducing my family members, i want to make a brief statement about concerns raised by some senators about how my documents were produced. as this committee knows, i provided over 500 pages of my writings since i was a teenager, most of those 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, snet searches, online data bases, library of articles, i even went to my mom's old house and went through the garage and baseball cards, scrap books and i did find a few additional articles and i provided them to this committee. it later came to my attention there were additional articles which were found in nonpublic sources. for example, i think some were found on a private server held by someone and i provided them to the committee immediately after we found them. i apologize for this. i know it is inconvenient and frustrating and frustrating for me as well and i hope the committee understands that. i introduce my family members, first of all, my wife melissa.
melissa has a heart of gold. 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 became a career civil seryant and worked under president bush and president obama. she is the most tolerant and understanding person i know. she tolerates my many flaws and mistakes i make. importantly, she tolerates the fact that i dress up our daughters as "star wars" characters every hallo wean. our two daughters are a sprirted bunch. if they were here, they would be singing "wheels on the bus." that's why they are not here but back at home with my mother in law. and my mom is my hero.
when a family comes to the united states, my parents were middle-aged, had four kids to support and didn't speak a word of english. we settled down in los angeles and my parents found whatever job they could. growing up, i remember my mom taking care of my three sisters and go to work and go to school at night to learn a new skill as a middle-aged woman. i feel so proud of my mom. i also want to mention my three older sisters, back home in california. i looked up to them growing up and i learned so much from them. and i want to thank so many of our friends here today in this room. and i want to mention someone who is no longer here with us but without whom i wouldn't be here today.
that's my dad. he worked 60, 70 hours a da week and never took a day of vacation. one of my dad's favorite saying is, america is the greatest country in the world. for example, whenever we celebrated, he would take our amily for all you can eat, $8.99. see, this is why america is the greatest country in the world. i never had the heart to tell him there were other cullin area options. another thing he loved was the american legal system. a lawyer, he sn't loved hearing stories of a single man or woman fighting the government or large company or the powerful and winning because he said back in our native homeland, stuff like that never happened.
he mentioned that the law would always bend to favor the powerful, privileged and the politically connected. he said here in america, everything is fair and equal. erhaps my dad had an idealized look at the lawyer. in my 20 years as a lawyer, i honored the faith that my dad had in the legal system. i served as a lawyer in all three branches of government. i tried my best and i'm proud of hundred of hours helping the poor and members of marginalized groups who may not have access to legal justice. i hope i can make my dad proud today. thank you. senator graham: thank you both very much. and your stories tell all about you and the country. mr. collins, you have had 60
cases that you prosecuted at d.o.j., eight jury trials? mr. collins: one was a retrial of a hung jury. senator graham: 38 arguments before the 9th circuit? mr. collins: maybe 39. about that. senator graham: 38 today. and 14 appeals you participated in to the supreme court, is that correct? mr. collins: i never argued in the supreme court but filed a number of briefs in the supreme court. senator graham: 14 times? mr. collins: about that. senator graham: what did you learn from all this? mr. collins: i learned the law is profoundly important to our society and that the fair administration of justice is critical to ensuring our rights, ensuring the functioning -- senator graham: as a trial lawyer what did you learn versus
being an advocate for the a.m. at court? mr. collins: being a trial lawyer and the cases i focused on were violent crime cases. ou really had a sense of the immediasy of your impact. i remember one case that i co-tried with one of my colleagues and the victim's family came every day to the trial. it involved a kidnapping and a rape and the victim suffered terribly during the trial and the testimony. and after the conviction, the whole family came up and the grandmother gives you a hug because you delivered justice to them in a very concrete way. that was a very moving experience. senator graham: this committee engaged in a bipartisan effort to change our sentencing laws in a way that i'm proud of and the president signed. now you have been a former
prosecutor and i understand how you are coming from. how do you feel about the first step act? mr. collins: the first step act appeared to be a balanced approach to reform some of the sentencing provisions which seemed undualy harsh. senator graham: for nonviolent offenders. senator graham: mr. lee, you wrote a lot as a young person. mr. lee: i did. senator graham: why? mr. lee: when i entered college as a 17-year-old, i took interest in current events and started reading newspaper olumns, watching television, "the mclaughlin group" and radio. senator graham: as a kid? that stuns me, but keep going. mr. lee: when -- i started to become interested and started
writing about these issues. when you are 18 or 19, you think you know everything, even though you really don't. senator graham: when did you realize you didn't know everything? mr. lee: by the time i was 20's.mly inly -- my low senator graham: did having kids help you understand? mr. lee: being married and having kids, i have become more empa thet particular. senator graham: you have written about affirmative action and have opinions and compelling life story, what shaped your views about the concept of diversity and affirmative action in our law and society. mr. lee: when i wrote pieces on affirmative action, it was in he 1990's and big issue in the asian-american community. a lot of us were concerned that some schools were using
affirmative action to discriminate. i was applying to school and something that was of interest to me at the time. there was a concern because there is history of discrimination of asian americans. nd there was also a feeling of asian-american community that our voice wasn't being heard. there is a lot of let's write about it, hold rallies and write to our elected first. i wrote about that. but obviously, at that time, when i wrote it, there was a question of whether the decision in 1978 was still valid and the supreme court has held in is her casees that it
permissible and that has a compelling interest. senator graham: senator feinstein. senator feinstein: mr. chairman, i trust each member has five minutes for each? senator graham: we will be very liberal. five minutes for each and if you need another round. senator feinstein: let me begin with mr. lee. i would 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 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 during college.
mr. lee: i understand your concerns about that. senator, when i got the senate judiciary questionnaire, it asked for all articles written. i started the process of looking through my personal files. and i had a scrap book of articles i had written as i collected those. i searched my electronic files, because i had p.d.f. files and collected those. my firm also maintains a 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 data bases to find articles. i also went to my mom's house and i still have a lot of my stuff there in the garage. and went through many, many boxes to find articles. and in total, i think i provided
over 500 pages of articles, most of which i had written during my college time. and i believe that was all of the articles i had written. there was a lot of them. later came to my attention that there were additional articles. and again, i think they were found through nonpublic sources. these articles were written 20 to 25 years ago. before the internetera. hese -- era. we found them on a private internet server that someone had. url so old. and someone had scanned these articles and put them in his private url server. but when he scanned it, it wasn't text searchable and didn't appear on the internet.
and once i discovered those, i immediately provided them to the committee. with respect to these articles, the topics were similar to what i had written before. so, you know, in my mind, i believe i had provided everything. but again, i apologize to this committee for that. it is frustrating for this committee and a major inconvenience. senator feinstein: let me discuss one article that i have and i don't know whether it's really relevant or not but counsel review, february 10, 1994 and it's about aids. and there's an indented quote, nine out of 10 people with aids are gay or drug users. and you make certain arguments. is this article true of your perspective today?
and if you wrote an article like this today, what would you say? mr. lee: i absolutely would not write that today. 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 aids policy and consistent with risk levels. but as an 18-year-old, i didn't know anything. i didn't know science. it was something i had read somewhere. 26 years later, i'm embarrassed by it. senator feinstein: i don't want to waste time, but i appreciate your answer. what has changed for you now? how do you view these issues now? mr. lee: thank you, senator. i think over the years, gain more empathy when you go through
life, the good and bad, the difficult things and just different people you meet as well. and i personally know someone who is living with that disease and thinking about this person i respect, him breathing and what wrote as an 18-year-old is mortifying. ver 25 years, you become empathetic and mature. i think i have matured as a person over the past 2 1/2 decades. senator feinstein: thank you for that answer and i appreciate it very much. mr. collins, i understand you drafted a provision of the 2005 patriot act re-authorization that removed the ability of federal district court judges to name interim united states attorney appointments and in 2006, attorney general alberto gonzalez fired nine u.s.
attorneys for political reasons. the bush administration then used your provision to fill those open vacancies indefinitely and buypass senate confirmation. you stated you did not anticipate your provision creating an open -- and this is a quote, open-ended feature. why did you decide to strip federal district court judges of their authority to fill u.s. attorney vacancies. mr. collins: i did not draft the provision that was ultimately enacted. what happened was in 2003, when i was still in the department, july of 2003, i was asked whether there were additional proposals that we wanted to include in a proposed d.o.j. re-authorization 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 firm a year later, i got an email asking me essentially do you remember that idea you had. what was the section? i sent him back the section and i suggested different alternatives and language. the language that was ultimately in 2005 and enacted in 2006 is not any of the options that i had provided in that email. they came up with their own language to implement the concept. senator feinstein: the part that concerns me is bypassing senate oversight, senate confirmation. mr. collins: one of the options i had listed although i recommended against it was the vack cans cyst act which has constraints on it. there were a variety of different ways it could have been done. i did not envision what was
going to happen with that and did happen. senator feinstein: you had no intent to create any situation whereby a president could decide to buy pass a confirmation process? mr. collins: when you read the text of it, you realize that could be done and do it indefinitely and that was not something i really had thought of. i was focused on the thought that when there was policy conflict between some of the judges in some districts and the administration on sentencing issues was probably not a good idea to have the bench appointing the united states attorney in that district. senator feinstein: you do not feel that way today? mr. collins: it was quickly repealed and put back in place and i accept that that's how the law stands today. senator feinstein: you also iled an amicus case in the
hamdan case which you said president bush exercised his authority as commander chief when he established commissions to try guantanamo guantanamo detainees without authorization. the supreme court disagreed held with you and said the commissions violated the uniform code of military justice and the geneva convention. in july of 2006, you suggested that congress should move quote y to overrule, end the statute. what's the basis for your conclusion that military commissions are better suited than article 3 courts to try terrorism suspects? mr. collins: it was a broad
consensus among a number of people at the time that military commissions should be retained as an option because they provided somewhat greater flexibility for particularly difficult cases. the congress ultimately did adopt a military commissions act in 2006 that then was a subject of a further supreme court case. senator feinstein: do you have that view today? mr. collins: at this point, as a nominee to an article 3 court, i'm not going to get to have policy views on those kind of public issues for the political branch to resolve. senator feinstein: do you believe that trial by military commission is appropriate for u.s. citizens accused of terrorism in the united states? mr. collins: i don't know if i ever specifically opined on that. senator feinstein: i'm asking you the question. mr. collins: i don't think it would be appropriate for me to
answer that hypothetical. it is something that could come before the courts. mr. collins: someone who was contesting that procedure would file a report and i don't think it would be appropriate for me as a nominee to a court to opine on that. senator feinstein: 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 ordinance violated the first amendment and
i quote, serves literally no purpose other than to burden clinics' protected speech. please explain your reasoning how putting out a sign notifying a women services provided and not provided is a burdenen on a clinic's free speech. mr. collins: the 4th circuit unanimously invalidated the ordinance as a violation of the first amendment. the court held that it really was not an attempt to regulate commercial speech or professional speech. and given that the trigger of application of the ordinance is whether or not you communicated about particular services made the trigger for it. and it was struck down. senator feinstein: in 1995 you wrote a book review in which you appeared to support the position that miranda v. arizona which
protects the rights of criminal defendants should be overturned. specifically, you wrote that miranda should be quote jet isonned in favor of constitutional text, unquote. explain your understanding of what it means to follow and what jettisonning would mean. mr. collins: the supreme court in dickerson rejected those arguments. and i would be bound by that decision and would faithfully apply it. i would point out in my amicus brief, i pointed out that the validity of the miranda warnings was not at issue and 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. senator feinstein: thank you. senator graham: thank you for your information. u.s. citizens cannot be tried by military commissions. that's in the statutes. mr. hawley. senator hawley: can you describe to me your judicial philosophy, tell me what you think the role of a judge should be? mr. collins: the role of the judge is to apply the law fairlyy and impartially to the facts of the case. you would start with the text of the statute, apply the appropriate canons and consult the relevant precedent and what the supreme court has said. article 3 terms is inferior court to the one supreme court and follow what they said. senator hawley: you mentioned interpreting text. that is what we do as lawyers
and what you will do on the bench. how would you go about interpreting the text, a statutory text or constitutional text, what are the tools you would use, how you would approach it. give me visibility. mr. collins: i would 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 and to the legal community to whom they were proposed for adoption and try to get a sense of what the rule was that was established by that. and then take that rule and apply it in the contemporary circumstances in the circumstances and the case at hand. what do you mean by original public meaning? mr. collins: not the subjective intent of the persons, what they had in their head, but what you
put the words down on paper, what do educated lawyers who understand the legal system and the doctrines, what would they understand the rule being established to be and then carry that rule forward. senator hawley: there is a case where there is an absence of precedent and it is a case of first impression and statutory interpretation case or a constitutional interpretation case. you have various options, you have the text, history, purpose, legislative history, you have contemporary values, you have canons. how do you prioritize those and deploy those different tools or considerations? mr. collins: as i said, if there is precedent on point that concxds con struse 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 ambiguity, you may
have to resort to the canons to resolve that and often does. 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. d so in trying to figure out what this vaguely-worded statute men and justice scalia wrote the opinion, he did take into account, it was an effort to overrule those cases. the reading of the words was disfavored and he adopted the word that did change that. sometimes you have to look at the context. that's what it means to understand the words in the context of the public meaning that well-educated lawyers who
understand the situation and the rules would attach to it. senator hawley: mr. lee, same question, judicial philosophy, what is the role of the judge? mr. lee: i think the role of the judge is to interpret the law, not to impose his or her own interpreting the law, the first place is to look at the text of the statute barring any precedent that controlled the facts of the case. interpree senator hawley: what if it comes to constitutional interpretation or statutory interpretation? mr. lee: if the text is unambiguous, it ends that. if you look at the context of the statute or constitution, you look at the history as well. and i think usually by looking will often there
provide the answer. senator hawley: how should congress' own constitutional judgments be weighed by a court if congress has expressed the meaning of a constitutional text? how do you think a court ought to weigh that? mr. lee: the court has to give deference to the legislature and there are canons of statutory construction and they have to be avoided. the judicial branch is an independent branch and i think judges take an oath to upheld the constitution. courts are an independent branch and they have to make their own independent judgment as well. senator hawley: what does substantive due process mean to you? mr. lee: substantive due process has a long history. there is economic rights embedded in substantive due
process in the lockner era. the words substantive due process does -- don't appear in the constitution, but the supreme court held that there is a liberty interest in the due process clause and obviously as a nominee and if confirmed, i would be bound to follow the supreme court's precedent in this area. senator hawley: because of that precedent. >> yes. senator hawley: substantive due process, how do you understand that doctrine? mr. collins: it has been a subject of controversy. it is similar to green pastel redness. but firmly established in the doctrines of the supreme could you tell. it's the basis on which the court has incorporated the bill of rights as against the states -- most of the bill of rights and also has acknowledged
certain unenumerated rights. i am bound by those rights. senator hawley: do you understand the difference between the fundamental rights cases? mr. collins: yes, in the sense, i know that justice scalia was willing to in the mcdonald case, he agreed with the line and corporation cases on substantive due cases because the precedent was so settled but distinct line of cases that looks to unenumerated rights in terms of substantive due process. enator graham: senator lumenthal.
senator blumenthal: mr. lee, you did write a lot and some of those writings are deeply troubling. maybe they are 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 unquote, quote, kindly acts. you talked about the motives of women alleging the harrisment as propagated by a course they took, giving them the personishous view all women are part of the sexism that are
inherent in our society, unquote. you wrote in a separate article, quote, charges of sexism often amount to nothing but irrelevant pouting. in light of what we have teen seen in the metoo movement. the conviction of larry nassar, and ctions of bill cosby harry wines stein, sexism in your view amount to relevant pouting? mr. lee: issues of sexism is very concerning to me and important to me especially as a father of two young daughters and someone who has three older sisters. senator blumenthal: why did you write that? mr. lee: i was 19 years old and trying to defend a professor i
had known, admired and respected at the time. frankly at the time, i didn't know, i didn't have 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 how things work in the workplace. and frankly, 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. at that time, we didn't hear too much about these stories. but now i know why we didn't hear those stories. i had a major blind spot on that over the past 25 years. as i entered the work force, i understand how these workplace dynamics work, how women can be mistreated by superiors. senator blumenthal: let me ask
you, do you think women should be an abled and do you think they have the right under our law now to decide when to become pregnant and when not? mr. lee: absolutely, senator. senator blumenthal: it's a moral and legal right. mr. lee: yes, senator. senator blumenthal: do you think roe v. wade was decided correctly? mr. lee: it is an important decision and landmark decision and decision that is relied upon by millions of people. and i will faithfully apply that precedent. senator blumenthal: you do believe it is a moral right for women to decide when to become pregnant. do you think there is a moral right against segregation, whether it's in education or health care, based on race, religion or any other such
category? senator blumenthal: segregation is immoral. senator blumenthal: wherever it occurs and also illegal. and do you believe brown versus board of education was correctly decided? mr. lee: brown v. board has a personal meaning to me as a minority. that's the reason why i was able to attend schools that aren't segregated. senator blumenthal: if you were on the supreme court, would you have voted on that? mr. lee: incredibly important decision. it's a landmark decision. obviously, i would think it's one of the most important decisions that the court has issued in reversing plessy but s ferguson in separate equal. plutonium blume i'm not surprised you are declining to answer my question.
what do you think your father would have said? mr. lee: dad believes in equality. senator blumenthal: don't you think he would have said, it was correctly decided. that's what america was great. mr. lee: i never talked constitutional issues with my dad and everyone should be treated equally. senator blumenthal: mr. collins, do you think brown versus board was correctly decided? mr. collins: one of the most important landmark decisions that one of the decisions. as a nominee, as i said, what would be appear inferior court o the supreme court. senator blumenthal: i'm going to suggest to the administration that they just give you sort of -- maybe a sign that you could
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 decisions, were correctly decided and i'm at a loss to is stand why no nominee agreeing to answer the question and how every nominee is using almost exactly the same language to avoid answering it. and i think it is unfortunate because i think we ought to have free and open answers, particularly on that kind of moral as well as legal question. let me ask you, mr. lee, among in 1994,ings, you said
quote, while most people can agree that gays should be accorded respect and equal rights, the creation of another ism is another way to portray victims in need of preferential treatment. you said the oppression of lgbtq people, a quote quasimarksist paradigm of the oppressed and the oppressor. maybe you could explain that to us. mr. lee: a lot of my college writings were my gut reaction based on my experience as an adolescent immigrant growing up in l.a. and part of the things, my dad always taught me was, america is a generous country, it's free and you can do whatever you want. and that's kind of my framework. and part of it when i came into
college, some of the professors seemed to dwell on the negative parts. senator blumenthal: do you think that discrimination or oppression against lgbtq people is a marksist paradigm? mr. lee: absolutely not. if you look at my cases, i have been very active in recruiting lgbtq individuals to my firm. one of the things i'm proud of, when we opened our l.a. office, we had a diverse group of people. we didn't have any lgbtq attorneys. i worked with people in our other offices, lgbt lawyers and came to l.a. reached out to groups at ucla and usc. senator blumenthal: why would you write that, because of ignorance? mr. lee: when i wrote that, it
was criticism of some of the professors i had where they dwelled on the bad things that america did and never talked about the good things that america has done as well. that was kind of my gut reaction. senator blumenthal: you would disavow that? mr. lee: when you are young, your views aren't nuan crmp ed. tu base it on your narrow personal experience. and as you get older, you realize the world is much more bigger, richer and more complex than based on your narrow experiences i had as a kid and one of the things i have learned. senator blumenthal: mr. collins, let me ask you about the brief andwrote in tobacco company you argued that ads within 1,000 feet of schools and playgrounds
violated corporations first amendment rights. do you believe corporations have first amendment rights? mr. collins: my client was based on the federal cigarette labeling and advertising and the court held it was preemptive and with respect to the other parties -- senator blumenthal: let me ask you and there are some interesting issues on preemption. do you think corporations have constitutional rights like ordinary american citizens? mr. collins: the court held that the petitioners did have a first amendment right to communicate in commercial speech in the availability of the product. plutonium blume do you think corporations have rights like individuals? are they the same? mr. collins: the court held that the petitioners who were petitioners did have the first amendment right -- plutonium blume what about your belief?
mr. collins: i would follow the precedent of the supreme court. plutonium blume you don't have any beliefs on that issue? mr. collins: i would follow what they established -- senator blumenthal: you don't think it is appropriate to tell us about your personal belief? mr. collins: i did answer questions about my germ approach and how i would approach jurisprudence, but to answer spresk questions what the court has held. the corporation does have a 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. senator graham: i'm going to give my two cents. citizens united, are you both familiar with the case? if somebody tried to change the supreme court ruling, if 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 econsider citizens united? you would be bound by it, right? mr. collins: yes. mr. lee:. senator graham: if somebody in california wanted to challenge citizens united, you would feel like you would be bound by it? mr. collins: yes. mr. lee: yes. senator graham: is it ok to challenge citizens united, if the supreme court wanted to take the case, they could do that, wouldn't they? mr. collins: the court has said that where a controlling precedent is on point, even if a lower court judge thinks that other cases of the supreme court ave undermind its premises the lower court judges are to follow
the law. senator graham: my point is pretty simple. dred scott was jofrlede. there is a legal process for the court can consider precedent. does that apply to every case ever decided by the supreme court? mr. collins: no. the court germly indicates when it is willing to consider. senator graham: that's what i'm saying, they decide. and if they want to revisit brown versus board of education, they can do so, if they can find a case in controversy. i can't imagine the jurisdiction in the country ever doing that are and want to go back to the days of segregation. it's not what you believe about abortion, what you believe about guns, what you believe about life in general, that you are 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 or problem with the constitutional precedent, do you think citizens united was wrong, there may be a day when 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. they have the right to make the case. judges will decide at the judges will the side at the supreme court level. so an appellate judge, from my point of view, and i'm clearly not the smartest person in this room. you'll be hearing cases an controversies before you. when there's a precedent on point, whether you like it or not, you're going to apply it, right? mr. collins: correct. senator graham: and you?
mr. lee: yes, sir. enator graham: so when a woman decides to become pregnant, she that is right not the employer. a lot of people believe that when it's the life of the child it's a different situation. do you understand where they're coming from? mr. collins: yes, senator. senator graham: senator kennedy. senator kennedy: thank you, i think senatorerness was next. senatorerness: mr. lee, you've been nominated to serve on the ninth circuit court of appeals. congratulations on that while studying your nomination i've had a chance to review your work both as a private attorney and as -- your service while working within the government. 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 have served as lead counsel in a number of class actions alleging deceptive marketing. you really 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 than 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 temperament. but you could also call it character. and mr. lee, while in college, you wrote about a case of sexual harassment, i know this has already been brought up. i'd like to hear a little bit more about it. this was on the campus of cornell university, involving a
professor moss. i've had a chance to review your writings and would like to ask a few questions about it, please feel -- please feel free to delve in deeper you expressed a belief regarding the credibility of survivors in that case. is that a belief you still hold? mr. lee: i d not. senatorerness: we had a good discussion about that. if a similar situation involving sexual harassment played out today in your law firm, how would your thinking be different? can you walk me through that? mr. lee: i think you have to take any allegations very, very seriously. i think that's something we didn't do in the past. you know, 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. senatorerness: very good. can you describe how your thinking on the topic of sexual harassment has evolve fled time you were in college to where you stand today? mr. lee: thank you, senator, for that question. when i wrote that article, i was 19 years old. i had never been in the workplace. i really didn't even know how the workplace work the dynamics, the need for people to work and continue working even if they face mistreatment. i was incredibly nay eve about that and over the past 25 years being in the workplace, you see how the power tie namic works, how people stay at jobs because they need the job. i think the most revealing thing that we've learned in recent years is how pervasive it is. the metoo movement. and not only that we learned that even good people, people we admire and the profess yo question was someone i admir --
admire and trusted and i wanted to defend him. what we learned is even people we trust and admire can commit these awful things. i learned that, you know, from my wife my wife, i think i mentioned, my wife and i share everything, we always call each other, facetime, texting. she may be texts me now because 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 nonprofits. these are people 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 the eye opening things we have learned over the past few year, over the past 25 years, for me personally. being in the work force, it's opened my eyes and i don't have those naive beliefs i had as a eenager.
senatorerness: thank you, i think it is important we understand how our lives change through the years. we can start as a young, enthusiastic, maybe in your words naive, youngster, young teenager, but through the course of your work experiences, your time involved with other types of activities, it has opened your eyes. we know survivors need to come forward and be heard. those life experiences change the way we view different circumstances. i know that senator cotton also mentioned that you have children as well. we want to make sure our children are able to experience life to the fullest and have the need to be heard if something should happen. as parents we want the best for our children. i know you had expressed that. in our one-on-one meeting as well. so 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 are so humble and so generous with others that have gone through sexual assaults and so thank you for that i do appreciate you explaining 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 fully explaining it. thank you, mr. chairman. senator graham: senator harris? senator harris: mr. lee, i heard you acknowledge that your college writings were immature and not reflective of how you think today. but you also have more recent writings. n 2007 you to wrote an article defending laws that keep people from voting if they've been convicted of a crime. you also submitted an amicus
brief regarding one such law in new york. one out to a survey, of 10 african-american womens have lost the right to vote. 60 nonblack of voters have lost the right to vote. mr. lee: statistics i have seen suggest a disparate impact. senator harris: do you think hat disparate impact should be considered? mr. lee: i think courts are deciding on that. i'll follow thes predebt -- precedent whatever it may be, as a judicial nominee, i think it's inappropriate to opine on issues that may come up before me if i'm confirmed. senator harris: do you think the
courts should consider disparate impact on specific populations? mr. lee: i think in come contexts, courts have accepted disparate effects analysis. senator harris: do you agree? mr. lee: is that a precedence? senator harris: is there precedent in this regard? mr. lee: i think there's at least employment context, i believe disparate impact in deciding discrimination cases in employment cases. senator harris: do you believe there's precedent on the impact on african-american voters on the issue you wrote about in 2007? mr. lee: i believe there are some. i think courts are working through it. i think the -- the case you're referring to is an amicus brief i worked on as an associate.
we were representing a widow of a police officer who were murdered and the person who murdered the police officer had sued the state of new york to be able to vote in prison while he was serving a life sentence. we were representing that widow and the widow had very strong feelings, obviously. senator harris: you as a lawyer took a position on a law. i'm asking as a consequence of data and fact that tell us that there will be a disparate 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? mr. lee: any time there's potentially discriminatory issues, it's a concern to me. i think it should be a concern to everyone. but obviously, you know, i have to look at the precedent in the circuit and see what it is.
senator harris: have you ever taken a case channing laws that strip people of voting rights? mr. lee: i have not, senator. senator harris: in 2005, as a practicing lawyer you wrote an article kiteled "illegals vs. legals." you criticize the george w. bush administration and its efforts to allow undocumented immigrants to work legally in the united states. you wrote, quote, by describing illegal immigrants as, quote, hardworking men and women pursuing better lives, president bush blurs the distinction between illegals an those who came to america following the rules. do you believe, sir, that an immigrant's status has any bearing on his or her work ethic. mr. lee: absolutely not. senator harris: is it your view we should never refer to undocumented immigrants a as hardworking because it paint them in a sympathetic light? mr. lee: no, senator my point there was previously in the past, congress in the 1990's had defended legal immigration by drawing a distinction and point
the point of the article was by blurring the distinction you may hurt legal immigration if the public starts viewing them the same. i wouldn't take any position, i was describing the politics of that situation of how immigration law is created. senator harris: in law school you wrote an article about what you called epidemic lying y act deem yasm you wrote on college campuses, professors repete the mantra one in four girls is a victim of rape or victim attempted rape. mr. lee: i was quoting and apoffsor who had written about that. shiringt today i wouldn't write that because frankly i don't know, you know whether what prfsor somers had written was true. i would summarize. this obviously this is issues of sexual assault incredibly important issue. as a father of two young daughters i wouldn't want
anything bad to happen to themism 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 the family member didn't tell me or my mom or anyone else or other family members because that was the culture then, you didn't tell anybody. so hopefully things are chaminging now. it's an issue i take very seriously, sthart. senator harris: thank you. senator graham: thank you. now, senator kennedy. senator kennedy: thank you, mr. chairman. welcome, gentlemen. 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 either of you hate black
people? mr. collins: absolutely not. mr. lee: no. senator kennedy intk: do either of you hate asians or hate women? mr. collins: no. mr. lee: no. senator kennedy: do either of you hate transgender people. you're under oath now. mr. collins: absolutely not. mr. lee: no. senator kennedy: do either of you think racially separate but purportedly equal schools are moral? clip no. mr. lee: no. senator kennedy: do eeth of you support violence in the workplace or anywhere else? >> no, sir. senator kennedy: do either of you hate little warm puppies? >> no. i las vegas my dog, actually. senator kennedy: ok, we got that out of the way. i want to talk about, mr. lee, the actually, professor lee,
professor, i want to talk a little bit about the district of columbia yumets you turned over you turned over 500 pages. mr. lee: i did, senator. senator kennedy: basically two novels. and they asked you for documents you've written from college, post-college and high school. is that right? mr. lee: yes, sir. senator kennedy: how many hours did you spend putting these documents together the first time? mr. lee: many, many hours. senator kennedy: how many? mr. lee: dozens of hours. senator kennedy: the ones you didn't turn over, were they on the internet? mr. lee: i believe some were. senator kennedy: and they were found? mr. lee: yes, sir. i think the department of justice found them.
senator kennedy: you talked about being in college, you said, i didn't know anything. but you wanted to know more, didn't you? mr. lee: i did, senator. senator kennedy: what was your g.p.a. at cornell. mr. lee: 4.08. senator kennedy: what kind of scale? mr. lee: my mom will be proud of that. i think if you got an a-plus, you got 4.3. an a was 4.0. senator kennedy: you made all a's? did you make a b? r. lee: i did not. senator kennedy: you'll never be a senator. i take it you spend a lot of time reading, thinking, talking, and debating? mr. lee: i did. senator kennedy: is that what college is supposed to be about? making people think, no making them comfortable? mr. lee: i discussed a lot of issues with a lot of people.
i wanted to learn things. maybe sometimes in an overzellous ways but i talked with a lot of people. senator kennedy: did your test your assumptions? mr. lee: i did. senator kennedy: did you believe the same things when you left cornell you did when you entered cornell? mr. lee: no. senator kennedy: i thought that was the purpose of college. do you consider that a bad thing? mr. lee: no, i think college is a time of experimentation, obviously, you know, certain things i regret writing because i didn't know enough. but it was a learning process for me. senator kennedy: let me -- i don't want to go too far over. let me ask you kind of a metta physical question. -- a metaphysical question. what -- mr. collins, i've kind of neglect yud over there.
what is your definition of justice? clip my definition of justice? it would be to have the law fairly and faithfully applied to my situation i would want if i were a litigant, i would want the court to give me rights in accordance with the laws as set down. senator kennedy: what if the laws are wrong? mr. collins: then we have a political process whereby people can ask for them to be change. but in the courts you have to follow the laws as written, the precedents as handed down. senator kennedy: what about you, professor? mr. lee: senator, i think justice is treating people equally no matter where they come from, who they may be. and treat them in equal fashion. senator kennedy: i think you're both right. i think justice is when people get what they deserve.
>> be careful here. senator kennedy: let me explain what i mean by that. it's broader than just crime and punishment. i think the people in tibbett, for example -- 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 circumstances. i think -- would you agree with me? if you don't, that's cool, that a nonviolent crime can do as much damage as a violent crime? mr. collins: it can, senator. a serious fraud, for example, of an elderly person can have
devastating impact. senator kennedy: you mentioned earlier, mr. collins, about the context of criminal jusity -- justice, but that we need to do bet we are nonviolent crime. is that right? mr. collins: it's always up to the congress to refine the sentencing system. 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. senator kennedy: these parents who cheated, who bought their kids' way into college. i read about it last nigh, got 80% of the -- the read the dime last night, got about 80% through it, it'll make you want to scream, make you want to heave. i'm looking to scream and throw up at the same time but that's not violent. do you think they should be punished? mr. collins: their case will be presented to the court which
will then decide the issues in accordance -- senator kennedy: that's diplomatic. i think they should be punished. i think thank you, chairman. senator graham: senator whitehouse. senator whitehouse: before i ask questions of the witnesses, i want to bring up something that transspired since the other 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 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. both 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 ms. rao ran. we asked specifically about the koch foundation, the federalist society, and anonymous donors and to senator feinstein, ms. rao responded, to the best of my knowledge the center didn't receive money the koch foundation or the fallist society, end quote. to me she responded to my knowledge, the center for the study of the administrative state did not receive money from koch foundation or an anonymous donor. ok. we take that as her statement. but then we find through documents that were released through foia, the freedom of information act, that the center for the study of administrative state in fact did receive
financial support from both the koch foundation and from an anonymous donor. in fact in 2016, george mason university received a $10 million donation from the charles koch foundation and a $20 million denation from an anonymous donor, both earmarked with support for her center for the study of the administrative state as a condition of the gift. "the new york times" has verified this, report, quote, a $20 million gift from an anonymous donor plus $10 million from mr. koch's foundation, according to the university, the documents called for bolster ms. rao's center. a minor matter this edean of the law school made it sleer that the center for the study of the administrative state received $300,000 from an anonymous donor. i know people don't want to talk about all this but this business of big special interest funding the federalist society which picks the nominee, funding the
judicial crisis network which campaigners in nominee, funding amicus entities that come 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 had to do with her contact with the federalist society about faculty candidates at the center for the study of the administrative state. she was asked, did she have any contact with the federalist society when she was considering potential faculty candidates she responded no and then said the hiring committee occasionally received recommendations from the faculty division of the federalist society. what she failed to disclose was that 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 discloseable information. in respond to that question. to me it signals that nominees in this administration are not taking this committee process very seriously because it is a treadmill. it's on automatic pilot. everybody gets to go through. particularly at the circuit court level. particularly at the d.c. circuit. so i just want to make a record of that. i'm very concerned about what is happening to this committee and to me, this demands further clarification and explanation. my question is to mr. collins nd it is this. senator graham: that will not count against your time.
senator whitehouse: thank you. posit 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 that 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 mr. collins: i identified, senator, in my response to the questionnary -- questionnaire that cases that involved former clients of mine would be an area that would require an inquiry whether or not it was a case in which i should recuse under the amakeable standards. -- under the applicable standards. i would check those standards and if i needed to recuse
myself. senator whitehouse: would it affect things if a party came before you feeling their case was dead on arrival? mr. collins: if i reached the judgment that i was not required to require re-cuse i hope they wouldn't have that. i know the standard looks at what a reasonable person who knows the circumstances would conclude if there was an apearns of impartiality or loss of impartiality in the circumstance. i agree that the appearance of impartiality is often as important as the substance of it. senator newhouse: let me reed something you wrote on behalf of exxonmobil. climate change allegedly results from the aggregate effects of greenhouse gas emissions from billions of sources around the world accumulating in the tpwhrobalat moss fear over the
course of centuries and thus cannot be attributed to the defendant energy companies. so let's go through some pieces of that. why kid you say allegedly? mr. collins: purely the procedural posture. it was a rule 12 motion. it is a verbal tic of lawyers in rule 12 motions always to say allegedly, they're always taking the facts as alleged as true. senator whitehouse: 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 sit more factual to say it comes from carbon emissions caused by the burning of fossil fuels that's taken place essentially entirely in the last semplingry? mr. collins: i continue right now today to be counsel in cases
that involve alleged tort claims that are asserted arising from climate change so i don't think it would be appropriate for me to express a personal view on the underlying facts. senator whitehouse: but you did, here's what you said. i'm asking you to defend it because it looks false. if you're willing to say something as false as the concern about climate change is something that relates to aggregate of greenhouse gas emissions from billions of sources over the centuries, when it is very distinctively not the problem, when it's attributable to emissions from fossil fuel combustion, i think i'm entitled to challenge that to you and ask you to defend it and if you're unwilling to defend it that tells me a lot. mr. collins: the question you're referring to is the aggregate contribution of all carbon dioxide. the question in the litigation is the share of the contribution from the energy industry and how
much that contributes to it. but 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 -- senator whitehouse: i think it's false to attribute what we discuss as climate change using that word in its normal parlance to things that happened hundred or thousands of years ago when we all know perfectly well it's happened since the industrial revolution. and i know 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 continued absent the fossil fuel we wouldn't be having a conversation about climate change. that's why i think it's misleading. my time sup. that's why i think it's going to
be hard for people to coming before you as a judge that people facing a fossil fuel party to feel they'll get a fair trial. senator graham: do you want to say anything? mr. collins: i'm not sure the other side in the case disputed that all the greenhouse gases that are emitted into the atmosphere and remain there now from all of the sources intermix and contribute to the global phenomenon of global warming. so that statement that you read, that's all that that said. i don't think that's false. i don't think anyone disputed it. the heart of the litigation was the amount of contribution of greenhouse gases from the energy industry and whether that should give rise to tort liability. it was a legal issue about the availability of tort remedies for that senator graham: senator lee. senator lee: in the context of a
rule 12 b-6 motion to dismis, what's at issue are the facts as alleged. the allegations. you frequently refer to allegations as such in the context of a motion to dismiss, is that right? mr. collins: invariably. senator lee: how are these allegations treated. in the context of a rule 12 motion to dismiss are you there to address or resolve disputed issues and material fact? mr. collins: no. senator lee: can that occur? >> no, you have to convert to a summary judgment motion. senator lee: and to do that you'd be at a completely different stage of litigation. a stage at which facts have been adduced, facts have been gathered in the discovery process? mr. collins: correct. senator lee: it would be impossible to refer to facts without calling them alleged. mr. collins: it's uniformly my
practice, to say allegedly, that's how you do a rule 12 motion. senator lee: you served as a law clerk at multiple levels of the federal court system. at any time did you conclude that the federal court system is corrupt? mr. collins: never, senator. senator lee: in your experience, in your career as an attorney did you see evidence of corruption? mr. collins: no, senator. senator lee: is it your position that individual -- 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? mr. collins: no, not to take our personal, political, or policy views with us to the bench. that's not the role of a judge. it's very different. it really is to follow the law, the precedence, the -- precedent, the statutes as
written, the precedent established by the supreme court, the other precedent established by the sprurte. that's what i'd be bound to ollow. senator lee: "new york times" vs. sullivan involved a corporation. mr. collins: yes, the "new york times" company was petitioner. senator lee: and the court concluded that "new york times," a corporation, had rights proteched under the first amendment. mr. collins: that's correct. senator lee: as a hour you're ained to find ambiguity, lawyers deal in am buy biguty andujarness it to make arguments for their client. as a judge, of course, your role is a little different. sometimes your role involves identifying ambiguity, and one set of rule mace apply if there's ambiguity in the statute. 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 statutory text? mr. collins: no, i've had a lot of experience with briefing issues on statutory interpretation, i'm familiar with the relevant canons, i think i could fairly apply those consistent with established precedent. senator lee: thank you. mr. lee, i regretted that one of my colleagues invoked the memory of your late father in connection with questions. i consider that inappropriate. and would 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 anyone when someone tries to invoke the memory of a departed loved one in an effort to shame, humiliate, embarrass, or 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 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 experience as your father. mr. lee: thank you, senator, for those kind words my father was my hero. he was the hardest working man. whenever we faced difficulties, he always tried to uplift us all. one experience, about 35 years ago, i was -- wanted to go to disneyland, pestered my parents to take me to disneyland. finally agreed to take me to disneyland with my three sisters but to save money they took korean food, it was rice and vegetables wrapped in seaweed. 35 years ago that was exotic. we were there, opened up our food for lunch, again, little kids started coming up, some said it smelled.
others said it looked like feces, using a different word. and one that i remember was, you know, point to my parents making faux-asian sounding names and pulling their eyes. when you're a kid, the smallest things seem like the world to you. the next day, i felt helpless, i blamed my dad for this whole thing. i said, i want to go back. i want to go back to korea. i said, you knowing, you never asked us to we wanted to come here, move to a new country. and my dad, he was a stoic man. he said i know it's tough for you, tough on your sisters, tough for me and your mom. one thing i'll always remember, maybe i didn't take it seriously when i was 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. things aren't fair there. the conglomerates there control the government they kohl 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 tweeted equally. my dad wasn't a lawyer. he never read the federalist papers. but he had a gut understanding of what make ours country and our constitution so great, powerful, and so unique in the world. i've always remembered that. senator, i know sometimes we haven't lived up to those ideals that my tad believed in and that's embodied in the constitution. that's clear when we read our history books. but i think all of us try to strive to live up to those ideals despite our different background and political views and senator if i'm lucky enough to be confirmed as a judge, not 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. senator lee: i'm confident he would be proud. thank you. senator graham: ms. rao submitted her answers to written questions on february 11, for the record. enator durbin. 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. and that is really, as you both should know by now, what this is all about. what senator kennedy's list of five or six basic questions, 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 go beyond the simple question about a feeling toward a group or issue and get some insight into your character.
insight into your values. to project what you might do when you're given an awesome degree of power as a judge. to literally decide a person's fate. that comes before you. and 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. . lee, you were a prolific writer at cornell in the early stage of your life. i don't know how you made time for class, you were generating essays on every political topic of the day. and most of them leaned in one direction. they were extreme, from my point of view, from the right wing perspective, and 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.
what you told us was that you had a major blindspot. those are your words. and that there has been a change. tell me about the 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. mr. lee: i understand your concerns and i appreciate that question. senator -- a lot of things i wrote when i was young, 18 or 19, in part it was lack of maturity. when you're young you think you know everything and you think everyone else is is wrong. you think only if i can speak loudly and every hears, i can solve all the world's problems that everyone else can't solve. and 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 i think when you're young you think being snarky is being witty. as you get older you realize it comes off as insensitive or tone
deaf. i've learned that i can tell you through my life experience of the past 25 years, there have been so many good, bad, that have taught me, shaped me into a more empathetic and caring and understanding person. you know. obviously the most obvious one is becoming a husband and father. i think that changes you for the better. my wife makes me a better person every day. more sensitive issues. having two daughters, i think you get more sensitive, because the thought that my daughters wouldn't be treated equally make misstomach churn. but there were other things professionally. i have done a lot of pro bono work over my 20-year legal career. most have been for the poor, for members of marginalized groups. that experience, you spend a lot of time with clients. it opens your eyes a lot. you know things, certain things, abstract concept, statistics, but i remember representing an african-american individual who
was beaten after a routine traffic stop and we represented him when it went to trial. you see statistics about disparities but when he, you know, tells you, looks you in the eye and says he gets afraid whenever he sees law enforcement even if nothing happens that hits you. you may know things as an abstract concept but when someone tells you that it opens your eyes and your heart. on a professional level and a personal level you learn things as you get older. even small things, when i was young lawyer in new york i decided to volunteer, i loved baseball, i wanted to volunteer in harlem, teaching baseball and mentoring kids. my love of baseball, i'll do that i took the train up to harlem. most kids were from south bronx, east harlem. when i showed up, these kids, or 9 years old, they come running to you with a big smile on their face. officially i thought, these kids think i'm good at baseball.
but then you realize, the reason they're so happy to see a stranger who has frankly mediocre baseball skills is these kids don't have a support system that so many of us have had and we have just taken for granted. ey're just happy to see that senator durbin: my time is up, what you're saying is heart felt and i understand the message. the point i want to get to, as i close, mr. chairman, i'll 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 law, as far as i'm concerned. i am not one of these people, and i hear it said on this committee so often i almost want to get up and leave. that this is somehow robotic law. here's the precedent, here's the facts, we know what's going to happen. that's not how court work. that's not how judges work. people bring a lot of thing into the courtroom. and part of what they bring are
their life experiences. and whether or not they can be empathetic with someone standing before them who doesn't have a fighting chance who couldn't afford mr. collins and his legal team that is obviously well respected by those who can afford good representation. and the question is whether that person has a chance before you, whether you can possibly look through the person's eyes and understand what the world looks like and when they're looking up at the bench, looking at you, they're wondering, i'm cooked, yf a chance here. that's what this is all about. to try to not guarantee your outcomes. at least guarantee the thought process that is empathetic to that person and understands that their whole life may be hanging in the balance of your life experience and the values you brought from it. thank you, mr. chairman. senator graham: if i could, just to build on what the senator said. i'm sympathetic myself. let me give you my two cents'
worth on how to look at this. there's what you say when you're young and what you do when you get here. i always look, it's not outcome determined. if the -- the ratings are -- in terms term of of it. she omayor's hearings, aid a latina woman will make a better judge than a white male and people said she's racist. no. nobody ever suggested as being a lawyer, an advocate or whatever they were doing that they were unfair to their co-workers. that they held a grudge. that they were radical in their representation. the only thick i would suggest to the committee about these two gentlemen is i understand you
would not have picked either up with of them. no democrat would. the people who work with you through these years have all said decent people who take a different position and i -- than i do, and ethical. what knocks you out with me is not your philosophy on the personal side. i'm a qualifications guy. but if i really believe you're holding a grudge against something or somebody, then those are the kind of people we want to knock out. and we've had two. i'm not going to tell you who they were. the reason i feel comfortable is because when you look at who these gentlemen have worked with, it's pretty unanimous, it's not whether i agree with them or not, they're just decent lawyers and ethical people. and to me on the people side that's what i'm looking for. on the floss soft call side i
understand that you disagree with the judicial philosophy. that to me is -- i did that with sotomayor and kagan. senator blackburn. senator blackburn: thank you, mr. chairman. thank you for those remarks to kind of put a wrap around all of this hearing. mr. collins, are you still teaching at loyola or is that in the past? mr. collins: i was invited to come back, i was invited to come back again but because of nomination. senator blackburn: if you were teaching and you have a class in front of you, what would you advise them on their professional conduct after going through this, all this process? that you're going through right now? mr. collins: i would tell them the same thing 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 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. senator blackburn: i appreciate that and i appreciate your family sitting there with you, enduring this question. questioning. and i know they're going to be ready to get out of here and go have lunch. they've been good and attentive. mr. lee, your family there, i think your mom is probably the chief mama in charge. and probably does a very good job, i've appreciated you all being here. i know you did some work at the white house with the 9/11 victims. and i know that must have had a -- an impact on your work. and on your point of view. your world view. mr. lee: yes, senator. and i was -- i started my career
in new york during -- when 9/11 occurred and you -- it's something obviously if you were of age during that time it affects you. and just the victims and people who were affected. the strength that you see is so inspiring. a lot of times you, you know, sometimes you feel us from trayed or it feels tough but you hear survivors, people who suffered so much, they're so strong, it's very inspiring senator blackburn: i would think that -- inspiring. senator blackburn: i would think that and the pro bono work you've done would help your empty, help your ability to walk in another person's shoes for a little bit. there was a case in your pro bono work with a death row inmate that wanted d.n.a. 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 in mr. lee: i think -- that was an important case because there were serious allegations of racial bias that may have affected that case and obviously stakes are huge. i think my -- the most important impactful case in a way was representing an inmate who alleged he had been beaten by prison authorities and i -- he was african-american, prison authorities were all white, we went to trial, it was before an almost all-white jury and i remember him telling me, i'm telling you the truth but i don't know if i'm going to get a fair shake because he's pointing to who the defendants are and the jury and you know, frankly, i didn't know what to tell him other than we'd do our best. we did win that case on the jury trial, the jury agreed with him. and he was so happy and he said . 'll take me out to lunch
it was very -- i felt good about it, having a little more faith in our justice system. senator blackburn: that's what you want, you want people to come before a judge and realize they're getting a fair shake. there are three things 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? mr. collins: absolutely, senator. mr. lee: absolutely, snar. senator blackburn: will you promise to put aside bias or views that you took from a prior advocacy position? mr. collins: absolutely, senator. mr. lee: absolutely, senator. senator blackburn: can you assure us you'll apply the law and the constitution equally to every party before you in your courtroom. mr. collins: absolutely, senator. mr. lee: absolutely, senator. senator blackburn: i yield back.
thank you.ham: senator kunce. >> thank you, mr. chairman. mr. lee, thank you for sharing the story of your father's optimism and faith in our nation. one thing that make ours system work is rules and process. as a judge you'll be asked to enforce rules and process. as an attorney i'm a bit obsessed with rules and process. mr. coons: as someone who -- mr. coons: i was concerned with what i -- mr. koons: i was concerned with which articles you provided and when i recognize that views mature and perhaps 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 pretty striking to me. am i right that you did not provide literally dozens of
articles that you yourself wrote to the selection committee impaneled by the two california senators? mr. lee: the questionnaire for the judicial advidsery commission asked for all legal writings so i provided my legal writings, i did not provide nonlegal writings that i had written in college because i did not believe they were responsive. but obviously with respect to senator judiciary questionnaire it asked for all writings. tried to get all my writings. senator koons: how many timeds did you have to supplement that? mr. lee: it was frustrating, but several times. we discovered different articles we'd supplement that. totaled around 50, 60 pages. senator koons: my sense here is we've goten 88 articles, writings from you. and some of them, most of them in fact only 11 of those were
initially submitted so 77 of hose were not submitted to the in-state judicial nominating committee and the vast weren't submitted even when you were initially nominated. 47 were added in january of 2019, another five, then another 27, then another four, then another two, then another one. then as recently as march 6, seven more articles. and part of what troubled me was hearing that these were relatively easily found by committee staff just using public searches. can you assure us that we now have all your published articles that we now have the full record to look at? mr. lee: senator, i believe so. again i've submitted over 500 pages, i believe they are. these articles from 20, 25 years ago and again, preinternet era. most of them were not on the internet and i didn't have a master index of everything i've written even as a teenager.
so i believed i have -- i believe i had collected everything. when we discovered it wasn't we supplemented it. again i apologize to the committee fer frustration it caused. senator koons: the notes i have say of the 45 that supplemented the initial file, five were from the state date, -- same date, same publications as other articles in your initial disclosure. to me this was very concerning. just the number, the length, the difficulty, look, folks who i have -- who are now sitting on the bench in delaware, commented that our questionnaire is very thor rogue, very long. but frankly i think it's important to respect that possess. is it critical in your view for judges to be thorough and honest? mr. lee: it is, senator. senator koons: one thing you wrote that was disclosed, i'm quoting, this is a college article, but you wrote, cries of racism stem from isolated incidents and unreliable studies
based on statistic chicanery, i don't know if i'm pronouncing that right. do you stand by that? mr. lee: i don't. obviously discrimination is real. i've -- my family have suffered it. i think some of the language i used in college. when you're 18 or 19 you don't have the nuance. you're trying to express a gut feeling based on your perm experiences. or limited -- on your personal experiences or limited knowledge. you don't understand the complexity of the world and i regret some of the language i used. senator koons: thank you. let's jump forward to 2001. you're not 18, not in college, you finished law school, this is while you were a clerk. you said left-leaning lawyers have waged a rights revolution over the last decade. what rights were you referring to and what should we condition collude from that? mr. lee: thank you, senator. i think some of the things i was referring to, i think, there was mentally ill who were freed from
institutions and i think the noimp article, senator, was my concern that -- i'm a strong believe for the pro bono, as you've seen from my track record and most of my pro bono cases are representing individuals who are poor or don't have access to justice my concern was that if too many lawyers take pro bono cases that are politically charged or very sexy, that people would lose support, people would not support pro bono because they viewed it as too political. if you see later in the article i mentioned that conservative groups were doing the same as well. and i was concerned about that as well. if pro bono is seen as a vehicle just for the left or the right, the general public and the legal profession may not support pro beno because they view it as a political tool. that was part of my concerns that motivated that article. senator koons: your advocacy here, in the quote it seems you're arguing against a quote
against a broader understanding of rights. what you were saying is we need folks willing to go out and handle workmanlike, day-to-day case representing established rights, established claims, not seeking to advance a particular agenda? mr. lee: i was saying that broadly but it was just my concern that too many pro bono cases involved politically charged cases people wouldn't support pro bono because they view it as too political. that was my concern. at the tame. -- at the time. senator koons: let me ask, if i might, one question of you, mr. collins. you suggested in a 2002 speech, general technological advances may have the effect of reducing the degree of privacy that existed when the fourth amendment was adopted. close quote. technology and the ability to collect personal data has not just rapidly advanced, it has changed the frontiers of
virtually everything about privacy and what data can and should be collected. do you believe an individual's right to privacy, the right, the underlying right, the recognition of a right to be safe in one's papers and effects in the fourth amendment, has decreased because of these technological advancements? mr. lee: no. i think the point i was making was validated by, for example, the supreme court's decisions in riley and carpenter, which have made -- ms. collins: you know, changes from prior precedent in the fourth amendment area with respect to search incident, to arrest, with respect to smith v. maryland. in light of the significant privacy concerns by the technological changes. so that's the kind of point i as making. i think those candidates validate that. mr. coons: thank you. >> senator klobuchar, we have
ight minutes left on the vote. ms. klobuchar: then i better hurry. >> i don't want you to hurry. that's the point. ms. klobuchar: i'll just do five minutes and run over there. >> if you need to come back -- ms. klobuchar: they'll tell me if i can't make it and i'll pull the the rest on the record. mr. collins, i know you talked about this with senator feinstein, but you drafted an amick us brief in a case before the supreme court. in which a detainee challenged the military commission convened to try him fighting for al qaeda. the supreme court disagreed. what do you believe are the limitations on the president's commander in chief powers in a time of war? ms. collins: the particular issue that we address -- mr. collins: the particular issue that we addressed in that amick us brief went toward what is the
inherent scope of the authority to invoke military commissions in a sort of pre-statutory period. so we went through the history and that was -- it was primarily a historical brief going through the history of military commissions. it ultimately, given how the court disposed of the case, my brief proved to be irrelevant because the court decided -- ms. klobuchar: but my question is, what do you believe are the limitations on the president's commander in chief powers? mr. collins: i don't think it would be appropriate for me sitting here today to opine on he substance of that question. i wouldn't purport to address it off the top of my head. ms. klobuchar: mr. lee, i understand that you worked as an associate counsel and special assistant to president george w. bush. according to an article in superlawyers, you were involved with the white house's response to congressional inquiries into
the firing of several u.s. attorneys and helped to evaluate the assertion of executive privilege. what do you take away from that experience and how do you think it will impact your valuation of executive privilege in the future? mr. lee: i think what i learned was the balance you have to take into account between the legislative prerogatives, and it's very important for the legislature to have oversight. that's a key constitutional role. but there's also countervailing value of being able to provide unfettered legal advice within the executive branch. so there's tension between the two and i think you have to balance the two. you have to learn to accommodate and try to come up with a compromise deal in those situations. ms. klobuchar: in an opinion written by chief justice berger, a minnesotan, a unanimous supreme court held in u.s. v. nixon that a president could not assert privilege over materials subpoenaed in a criminal trial based only on the general
interest -- generalized interest in confidentiality. do you believe that the court properly asserted jurisdiction to resolve the conflict between president nixon and the special counsel? mr. lee: senator, i'm not -- i'm vegasly familiar with the case -- vaguely familiar with the case. i never read the opinion. obviously it's an important decision. as an inferior court nominee, if i'm confirmed, i'll faithfully follow it. ms. klobuchar: in an article you wrote in september of 2002, you criticized the use of disparate impact claims which allow plaintiffs to show that a policy has a discriminatory effect, even if it wasn't motivated by an intent to discriminate. the supreme court has repeat lid affirmed that dess par at impact claims are an important tool to protect against discrimination. can you speak how you would approach a case involving this claim if you're confirmed as a federal judge? mr. lee: thank you, senator. obviously if the supreme court and the employment context has held the disparate impact claim
could be viable, i think there's a test, provide disparate impact, the other side has to proffer a reason to show that there were other factors involved and the other side can show that it's protectional. obviously i will faithfully follow all precedent. you have to take discrimination claims very seriously. it's something i believe in personally as well, as a racial minority, and it has to be taken very seriously. ms. klobuchar: mr. collinsers you wrote an amicus brief in which you made a broad constitutional argument that the first amendment's free exercise clause extends to a for-profit corporation's exercise of religion. if corporations have a protected right to exercise religion, is it your opinion that corporations could also say -- refuse to hire someone because of their sexual orientation or what about the religion that they practice? katie: the primary issue -- mr. collins: the primary issue that we addressed in that case was
the statutory issue about what was the coverage of person within the meaning of the religious freedom restoration act. that required some consideration of the subsid year question of how it had been treated under the free exercise clause and we looked at one case in particular where a corporation had been allowed to assert a claim. but i don't think it would be appropriate for me, particularly as these issues are working their way through the court, to opine on some of the open questions that i know are being litigated right now. ms. klobuchar: thank you. i think i'm going to go vote. but i appreciate. i'll do a few other questions on the record. thank you. >> thanks, senator klobuchar. i think that's it. we'll hold the record open for written questions to march 20. thank you very much. you both had consequential -- live consequential, good and decent lives. i appreciate what you have done thus mr. farr: our country. and i think -- us this far for our country and i think in both cases, the best is yet to come. hearing is adjourned.
and vote tomorrow on that nonbinding resolution that special counsel robert mueller's report should be made available to the public and congress. live house coverage is here on c-span beginning tomorrow morning at 9:00 a.m. eastern. also on thursday, the senate will vote on a house-passed resolution to block president trump's national emergency declaration and prevent unappropriated funds from being used to build a border wall. at least four republican senators plan to vote in favor of the measure. if it passes, the president has said he will veto it. the senate is live thursday on c-span2. >> c-span's "washington journal," live every day with news and policy issues that impact you. coming up thursday morning, indiana republican congressman jim banks on president trump's $750 billion pentagon budget request. then illinois democratic congresswoman robin kelly talks
about the president's fiscal 2020 budget request and u.s. trade policy. be sure to watch c-span's "washington journal" live at 7:00 a.m. eastern thursday morning. join the discussion. >> sunday night on afterwords, jodgetown university professor examines russia's foreign policy in international goals. in her book "putin's world: russia against the west and with the rest." she's interviewed by nevada congresswoman dina titus who serves on the foreign affairs committee. >> are you a little more optimistic that if we find some common ground like you mentioned, the arms control, that we can be a good partner with russia? >> putin's popularity has fallen by about 40 points since he was re-elected last year as president. and public opinion data in russia shows the majority of russians now don't want stability, they want change. they want a better economic situation. and many