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tv   MSNBC Live With Stephanie Ruhle  MSNBC  March 21, 2017 6:00am-7:01am PDT

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will motorcade from the white house to capitol hill. he is meeting with the republicans in the house about the health care bill. let us not forget that as we talk about the wiretapping debate, the russia debate, the gorsuch confirmation hearings, there is a vote scheduled thursday night of this week on the gop health care plan, which, of course faces an uncertain future shall we say in the u.s. senate. we will cover the departure of the president from the white house, his arrival on capitol hill. then, in about a half hour, we will see judge neil gorsuch take his place in front of the committee for the first full day of question and answer period in earnest of his confirmation hearings, which, if you recall, if you were watching yesterday, were rather overwhelmed by the testimony on wiretapping, on russia, on leaks to the press. a lot going on on capitol hill.
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we have our full team assembled to cover all of it, beginning with casey hunt on capitol hill. casey, it is a full calendar. >> it is. i apologize if you see movement and i jump out of the way. we are waiting for the president of the united states to come down here and meet with republican members of the conference. this is aimed at selling his health care plan. it's set to be on the floor of the house on thursday. they are trying to get 216 votes. of course, laid on top of that is what happened yesterday at that hearing with the fbi director. this is something that we are still kind of feeling reverberate across capitol hill as republicans grapple with the implications of the fact that the fbi director did acknowledge publicly the fbi is investigating people who are associated with the trump campaign. as devin nunez, the house chairman put it, the intelligence chairman put it at the end of the hearing, he called it a big, gray cloud over
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the administration because comey was able to confirm the investigation. he provided no additional details or names. that, i think, is going to contribute to the same atmosphere we have had along here where you have some members who are getting more information in a classified setting. they are not able to say it out loud. it is difficult to separate fact from fiction and get clarity on what is happening. the headlines in the newspapers this morning, certainly difficult ones for republicans. paul ryan just walked by the camera on the way in. he is a policy person who spent a decade building his career on things like this health care bill that is now potentially in trouble. it's harder to make an ask of somebody to vote for the bill, potentially lay their political life on the line for you, if, in fact, you are under fbi investigation, for example. everything coming out of this white house, all these ancillary
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stories make it harder for republicans in congress to do the thing they have been waiting the last eight years to do, which is govern. so, you are going to see all of that on display here today. we are down in the basement area. to the left, there's a conference room where the gathering will happen. afterward, members of congress come out of the meeting. we get a leadership press conference with the speaker. we'll get reaction there and bring it to you. >> casey hunt, we'll go to capitol hill to check in. thank you very much for that. let's go across town to the white house. peter alexander standing by. in normal times, there is a congressional calendar cleared for the debate of health care in normal times. it would be 100% of the focus of the presidency. the president would be on the road selling the plan. these are not, however, normal times. >> reporter: yeah, i think what is the biggest understatement of
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yesterday's hearing is james comey saying because of these unusual circumstances. these are beyond unusual circumstances as americans are digesting the fact for the last eight months associates of donald trump, campaign associates have been under investigation by the fbi. i was listening to part of your conversation with casey. she is right, one of the real challenges is the president's credibility is under fire. the question that is posed to republicans, particularly moderate republicans right now in some districts witnessing this president with a historically low approval rating, the latest showing him hovering below 40% right now. president obama, for the record, never dropped to that level. whether or not they are going to use their capital to support them when his capital appears to be waiting, not just on health care, but the supreme court justice nominee, neil gorsuch,
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both happening on the hill right now. today's briefing with sean spicer will most likely be focused on drilling down on the idea of the investigation. how long donald trump and his aides have known about it. so, one of the real challenges for them right now is to zero in on what they want to focus on, health care, which is the reason they went to louisville, kentucky. the president going to the home of mitch mcconnell to make his case for the health care bill. as sean spicer, brian, said a matter of days ago, this is their one shot to repeal and replace obamacare. they recognize this as an opportunity they can't afford to waste and try to by climbing up hill. >> peter alexander at the white house, thanks. as casey hunt mentioned, we are showing a hallway with steam pipes over the members of congress. that is the republican caucus. republican members and staff arriving through the catacombs
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under the u.s. capitol to meet with the president of the united states. now, to the other piece of business, which is going to be front and center in 25 minutes. that is the confirmation hearings of judge gorsuch to take his seat on the supreme court. chris jansing was there all day for us yesterday. of course our attention was called to the other hearing. for folks who couldn't concentrate on day one, the kind of introduction of judge gorsuch, tell us what we missed and if you might preview today for us. >> well, i think chuck grassley, the chairman of the senate judiciary may have said it best as he was closing four and a half hours of scripted testimony from the senators on this committee, the 20 of them, as well as neil gorsuch himself. it's going to be a long week. what we saw yesterday is what we are expecting more of today, this big political divide.
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on one side, you have the democrats. it's clear, from yesterday and from what their staffs are telling me, they are still angry that garland, president obama's choice to fill the vacancy by antonin scalia never got the hearing. they are trying to present this nominee as someone who is not a friend of workers, not a friend of consumers, not a friend of gay rights, somebody beholden to special interests. the republicans, on the other hand, have basically said, look, yes, he's conservative. he is what president trump said he would bring to the supreme court when he ran. in fact, they suggested that he had some sort of special dispensation because people knew the kind of jurist president trump was going to nominate and that a large percentage, in fact 27% of trump voters said the supreme court was their most important issue.
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they also suggested that he should not be held responsible, neil gorsuch for the fact that garland never got a hearing. both sides made it clear they are going to be tough today. it's clear that he is very well prepared. neil gorsuch has been in 8-10 hour long sessions at the big building, the old executive office building, going through his paces, really doing what they call murder boards, essentially playing out what might happen here today, getting prepared to answer these questions and expect, brian, for him to adopt what is known as the ginsburg standard. that is where he wl talk about his opinions. he has me than 2,000 of them. the folks here have been able to pour over something like 175,000 plus pages of documents. but, not ever talk about how he might rule. when they try to press him on
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issues that might come before the supreme court, the ginsburg standard says, no, i don't want to preview a case that i don't know the facts of. it's going to be a very interesting day here on the hill, brian. >> chris jansing, we'll check back in with you early and often. thank you. ari is here with us as he is every time we have to walk through the thicket of things legal. ari, this is one of my favorite topics to talk about with people. that is how people change. the supreme court can change a man and it can change a woman. sometimes they leave the bench after many years of service remarkably unchanged. these tend to be different times. >> these are certainly different times. i think president trump deserves credit for what his allies call a transparent process. he did something unusual, release this list of names of people he would choose. neil gorsuch was on at least a second version of the list, then
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he chose him. that was the point that came up in yesterday's hearings. look out to hear that again. to your point, neil gorsuch is relatively young, confirmed as an appeals court judge. he is known as an elegant and careful wrighter. he is most animated on religious freedom, hobby lobby and those who didn't want to provide contracepti contraceptive coverage because of their moral beliefs. it drew political heat. what kind of jurist he would be on the supreme court will be tested today. >> pete williams standing by in washington. same question. tell folks about the circuit he comes from, what is known about his opinions coming into this big job offer and what will you be looking for today? >> tenth circuit court of appeals, he's been on it a
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decade that hears cases from six western states. the point he made yesterday was he is in the judicial mainstream without those words. of the 2700 or so opinions he's joined, an appeals court judge never write opinions on their own. they are on a three-judge panel and that's most of the cases they write or the entire tenth circuit panel, all the judges sitting together. there are always group opinions. he says of the 2700 opinions he signed on to or written, he's been in the majority 99% of the time. the point he was trying to say is he is not an outlier, he's in the judicial mainstream. in terms of what we'll hear today, we'll hear about some of his specific cases, some decisions. you saw a preview of this today, a couple decisions that democrats say are clear proof he votes for the corporations and business and moneyed interest and not the little guy. in terms of -- yeah, go ahead.
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>> i was going to ask about his life in 2017. we saw his wife with him the night he was announced at the white house. he has two teenage daughters. by all accounts and by all available edee, considering this can be a cloistered life, depending on the jurist, does he live in the modern world? >> to the extent that any judge does, yes, i think so. he's out in the west. he enjoys western activities. he's a big fly fisherman. he's a skier. he's an outdoorsman. he is no strange tore the marble hallways of washington. he's ivy league educated, he went to oxford, where he met his wife overseas. he's not anybody who spent his entire life chopping wood. he certainly knows academia. what we are going to hear today is, it's a long day.
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do the arithmetic. there's 20 members, they get a half hour of questioning. if they do the follow up, there could be six more hours of follow up questions. it's going to be a long time. only in the congress, brian, would you call yesterday, where the nominee just sat there, a hearing. >> yeah, this is going to be longer than i spent in college. i asked the other question because we have seen jurists who lived, and forgive me, a victorian existence in our area. once they get to the court, they are more susceptible to kind of drawing the drapes and be accountable to no one. these lifetime appointments can be funny things. >> wiell, he'll be the first westerner since his mentor, byron white stepped down. he'll be the first, if he is
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confirmed, the first prod substantiate on this court. he would bring diversity there. the other thing about him is, in many ways, he'll be as conservative, undoubtedly as justice scalia, perhaps more so on issues of the rights of criminal defendants. scalia didn't think you should be sentences if it wasn't decided by the jury. the judge shouldn't give extra sentences. perhaps not as conservative in some areas. one place where he may make a difference, what we think of as antonin scalia today, the fully formed scalia was a man of strong opinions, not necessarily a persuader of the court. he staked his position and dared other people to join him. the other judges who talk about neil gorsuch say he, perhaps, is more of a somebody who can build coalitions. he could be more influential as a conservative than scalia was
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in terms of aractinvotes. >> pete willia, whose counsel we are going to seek early and often throughout the day. thank you very much. we have been told from the folks at the white house, the president has departed the white house on his way to capitol hill where i believe we have live cameras outside where i'm just being told now this is his motorcade arriving on capitol hill. remember, he goes inside and suddenly, there are -- here come the two limousines, the one carrying the president and the decoy. suddenly, the subject change goes from everything we have been dealing with the last two days to health care, where it is easy to forget there is a scheduled vote coming up on thursday night. the president needs a lot of votes. the bill is to be charitable imperfect. the bill is to be a work in
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progress. the unmistakable of the silhouette of the president we saw as it passes into the portico under the steps. that's over on the house side of the capitol, the dome in the upper right there. he'll be going in to get as many of those votes as possible. the difference now is that a lot of these members are back from their districts. they are back from breaks. they are hearing from, in some cases, record numbers o constituents, wary and alarmed, many of them, that obamacare is ending. hyperconcerned about what is going to happen next. and so, this will be the president as nose counter and arm twister arriving on the capitol. i am quite certain the event will leak like a sieve. going on through the day, we
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will hear exactly what happened inside that room. katy tur is here with us inside the studio, having covered the trump effort from the very beginning. as i said to peter alexander, in normal times, while you talk, we will wait and watch for the president to come up the steps. his car is just over the horizon there. in normal times, right now a president would be campaigning. campaigning maybe even whistle stop tours to get health care sold. there have been a few other subjects on our minds. >> not campaigning for re-election, but for the health care bull his trying to push through. we saw him do a little of that yesterday in kentucky, in louisville, kentucky, when he spoke to the crowd and emphatically called out senator rand paul, who has been one of the most outspoken critics of this bill, as it stands. somebody who said they would vote no against it as it stands. you can see right now, donald
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trump, you can tell because his personal security guard towers above the rest of the group there. there is the president making his way into the bowls of capitol hill. for him, right now, this is a do or die moment. he's got to be the closer for health care. he's got to con vinls wary republicans that they have got to be on his team. remind them who brought them to this dance. >> see if we can hear. >> let's listen. >> walking with tom price, the secretary of health. >> no shouted questions. he's better at not answering the shouted questions, we have to remark on that. he has to figure out a way to convince wary republicans they need to vote yes on this health care bill. this is the first thing he decided to take up in terms of legislation. it wasn't an infrastructure bill, which many thought he would do first. a bill that could bridge a gap
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between democrats and republicans, since democrats want an infrastructure bill so badly and he talked about doing that, fixing our nations, in his words, crumbling bridges, tunnels and airports. he took up health care. that was bound to be divisive considering what the republicans have been railing against it for the past eight years. remember, also, donald trump talked about wanting universal health care, and making sure everybody would have health care in this country. people won't die on the streets. are we going to hear anything? >> let's listen again as they go by. all right. that's two questions, two thumbs. i meant to ask you about his -- we are tempted to call him security detail leader. the tall gentleman looks like general dega he was his personal guy, his -- >> his body man. >> how has he been integrated
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into the secret service? >> he's been with donald trump for years now. he's his personal security guard and closest confidant. he's there when others are not. he's kept his position during the campaign after secret service came on. it was a bit of a controversy at the time. there was worries that somebody who was not trained as a secret service officer would not know the correct protocol and would not be able to react in as quick a manner as they would, would almost get in the way. clearly, whatever issues may have lingered with that have been resolved to a degree enough where somebody feels it is okay for him to be there, maybe not the president's request, but remember, you know, nothing is traditional with this president. >> there's the sergeant of arms
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in the house and gary cohen and kellyanne conway are part of this traveling group of staff that has come down to the hill with the president. this is scheduled to get under way right about now. he's on time. we have this confluence on the calendar of the hearing in ten minutes. >> there's the gorsuch hearing, there's health care, there is the fbi director comey hearing that happened yesterday which we are feeling resinate across washington and across this country where the fbi director made the ground breaking revelation that, yes, they are conducting an active investigation into the sitting president of the united states into how his campaign dealt, coordinated with, did they or did they notith the foreign government. >> bracing to hear. >> remarkable.
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it's remarkable. what was secondarily remarkable is how partisan that hearing became after that reflation. what we heard from chairman devin nunez, the first thing out of his mouth was, almost something you would have assumed donald trump would ask, which is did this affect the outcomes in michigan and pennsylvania? were they tampering with the voting machines in michigan and pennsylvania? two places that were very close that brought donald trump to victory and both fbi director comey and nsa head rogers said that, no, they didn't believe there was any tampering with election or voting machines. what the white house did with that was they used that to say, look, this election was not affected by the russians. then we have that remarkable moment where the fbi director came out and had to rebut
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another tweet by the president of the united states saying, no, i did not say they did not affect the election. i said they did not tamper with voting machines, two very different things. >> there's the president. again, whatever meeting this was was a shortstop, n far -- hang >> pretty much. >> pretty much. can't wait to find out what the question was that was yelled, but the answer, pretty much. they are heading now to the caucus meeting. they stopped by a meeting room on their way. a long time aide to hillary clinton is standing by to talk to us. jennifer, i don't mean this in a flip way, but how are you feeling these days about mr. comey? he was hardly a friend in the days leading up to the election. >> i stopped trying to figure out what goes on in jim comey's mind, but what he says has an
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enormous impact on our country. in both the room the president is getting ready to walk into with the republican caucus to talk about health care and also on the gorsuch hearing, the ghost of jim comey is going to be very present in both of those rooms. you know, the question of the fbi investigation whether or not there was collusion among the trump campaign with russia, what that impact was. i think that hangs over both whether or not the president's health care bill is successful and could impact gorsuch. >> we see clippings on the internet for what they are worth and we saw remarks on the record from hillary clinton t other night in scranton, pennsylvania, making a play on her famous walk in the woods, saying she was perhaps ready to get into the public realm. can you add anything to that? >> no, i would not make too much of that except she's obviously
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somebody that cares about the country deeply. she's somebody that has a lot to contribute, particularly when it comes to what kind of policy solutions we could be enacting or the dangers of those we think that trump poses. but, you know, like i would just give her time and let her come out and say what she is going to say in her own way. >> let's listen in here. a couple more shouted words amid the large, mostly men in suits. as donald trump walks by that kind of familiar hallway where we often see questions. hey, casey hunt. what just transpired there. >> reporter: the words you heard shouted were, can you get the votes. he said think so. he just came down through the capitol building behind the stairs and past us. he didn't stop to chat,
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obviously, with reporters. now he's gone into the meeting with republicans. the house speaker and majority leader are already in there. clearly, you can see the white house press corps who showed up at the last minute, they ce in with the motorcade. nowe expect this meeting. we'll see how long it is. typically, about an hour. so, we'll see if that's what it takes with the president behind closed doors. i'm sure we will get information from the always talkative house of representatives after coming out from the president. >> the hubbub when they come in. casy hunt, thank you. we'll check back in with you. jennifer, where is the democratic psyche right about now about not only processing what happened, but processing every passing day of this
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administration? there's way more news than our ability to kind of catch up with it and synopsize it. we used the word unsustainable. the tempo is unsustainable. >> it feels unsustainable in terms of not only what you have to cover, but the impact of it all. i do give the press credit for how they are juggling pretty well all of these story lines. all of them are really important. i think for democrats and for democrats in the senate, what they are realizing is, with each passing day, you see how -- how much is at stake that they have to use every leverage they have to keep this president accountable. you know, that may mean they have to behave unconventionally.
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that may mean they decide, some senators may hold up gorsuch and not support him because they want to wait until an fbi investigation is completed. others may feel they need to, they are not going to support him because of the views they have. i think they have to -- they may say we should hold up his nomination until we appoint a special prosecutor to really look at russia and whether or not the trump campaign is colluded with them. there is so much on the line and the senate democrats are in a unique position. i think they are seeing they have to use whatever leverage they have, even if it's not what senators normally do, to keep this president accountable. you have, he's on the verge of taking away health care from millions of people. he's going to appoint a supreme court justice on the bench for life, then ye hanging over it all, the fbi invesgation on
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russia. it's unprecedent for all of us. >> when you hear comey he said he may have walked over to the dnc during the electronic path. we can't go back, but looking back, a lower level person calls the dnc. they get, in effect, the i.t. guy and, again, that would be the equivalent of two clerks talking at the start of the normandy invasion where political warfare is concerned. we know the rest. we know what happened starting with an e-mail from john podesta. >> it is. it's remarkable. of anything, you look back on questions you have, i think the most vital question is why comey felt the need to send a letter to capitol hill about e-mails involving hillary clinton a week before the election, but didn't tell us they were investigating donald trump's campaign and its
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relationship with russia. that, which i think clearly has enormous national importance, more so than hillary's e-mails. that is a question we still should have resolved. >> thank you very much. >> my pleasure. >> we are switching away to watch judge gorsuch and his wife come in the hearing room. senators are taking their positions up around the desk. we see a former not kelly ayotte who has been shepherding the judge up on capitol hill. they usually make the rounds, as many of the 100 senators as they can. certainly the senators on the judiciary committee in the weeks and sometimes months between the time when they are named and the time when their confirmation starts. we'll listen in to the room now. there will be a call for order.
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the photographers will be escorted to the back. the hearing will get under way. you heard pete wilams talk about the rules. ari, we have seen baseball games much shorter than what we are going to witness today. we see senator blumenthal there. >> we have. this is going to be a long game, if you want to say, likely to go into extra innings. we have been advises, at least ten hours. i expect to beginning to be eventful. we are seeing neil gorsuch here. >> he wants his ncaa brackets. >> he's handed him a tablet. he's greeting senator durbin. the pleasantries being exchanged. >> john cornyn taking a picture. >> it's the first inning but neil gorsuch is up by several runs. >> let's take in the scene from capitol hill.
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>> i don't see a lot of federal
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judges fist bump. the huge population behind judge gorsuch, a lot of it made up of his former clerks who served him over the years. sure sounds like somebody has an electronic device by the microphone so we can look forward to that vibrating throughout the hearing. last minute pep talk from his wife. waiting for senator chuck grassley to be seated. judiciary committee has many of theost prominent mes in the senate.
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>> still waiting for some seats to get filled in. among the democrats, dick durbin is there. grassley was -- >> i'm waiting for a very important member of the committee to arrive before we start. >> that's not me. [ laughter ] >> leahy taking his seat. some of the senior most members of the senate, period, in terms of their service. leahy, orin hatch among their political parties. senator franken from minnesota at the bottom of your screen arriving now.
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a whole lot of news media gathered for this. it was pointed out by many, many people, the hearing itself got under way yesterday and was far and away not the lead story. as we went into the afternoon and evening. to katy tur's point, earlier, not every day do you have a hearing on the hill where you hear the fbi director say, nope, the president's contention on the previous president wiretapping his office building in new york, there's no evidence to support that. yes, we can confirm and open and ongoing investigation into russian ties into a political campaign of the victorious candidate in our country. again, that vibration you hear, which we sure hope they will root out and turn off, is
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someone's phone next to a microphone. senator feinstein of california taking her seat next to senator grassley. they have an interesting working relationship. emphasis on working. >> welcome back here judge gorsuch. glad to have you back. i'm sure you are glad to be here. good morning, everybody. i would like to welcome everyone, especially our nominee, as i just did. this is day two of the supreme court nominee's hearing. we have a long day in front of us. so, we'll immediately turn to members questions. it's my intention to get through all members first round of questions today. so, it's important we all stick our time limits so we n stay on that schedule. i realize that ten hours is a long time for you to sit there and answer questions for 20 of
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us. so, i'm going to defer to you when you might need a break. in the meantime, i would anticipate a break about 30 minutes for lunchtime and i hope for the members of the committee, i have not made up my mind on this yet, but we do have a vote scheduled at noon and -- i'm sorry? >> two votes. >> oh, okay, we have two votes at noon. it might be appropriate to use that period of time for our lunch break. i'll make a decision on that later on. so, with that understanding with you and to accommodate you because you are the person that has to sit there and answer questions and so whatever your needs are, you let us know. i started yesterday morning, judge and audience, with justice scalia's comments that our
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government of laws and not men is the pride of our constitutional democracy. our democracy requires judges to let the people's elected representatives do the law making. you, judge, said justice scalia's great accomplishment was to quote, you remind us of the differences between judges and legislatures, end of quote. legislatures, in other words consult their own moral convictions to shape law as we best think it to be. but you said that judges can't do those things. rightly so, from my point of view. our constitution is also a charter of liberty. justice scali said it guarantees liberties primarily through its structure. that happens to be the separation of powers. you said, judge, that much the
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same thing, i quote you, what would happen to disfavored groups and individuals, end of quote, if we allow judges to act like legislatures. quote, the judge would need only want his own vote to revise the wall willy-nilly in accordance with preferences, end of quote. the separation of powers in our system requires an independent judiciary made of judges respectful of the other two branches. but not beholden to them. judges must be equally independent of the president who nominates them and us senators who confirm the same judiciary members. let's start with independence from the executive. no one, not even the president is above the law. one of the most remarkable
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things about your nomination is the broad bipartisan support you have received. you have earned great praise from individuals who aren't exactly supporters of the president, but who strongly supported ur nomination. yesterday, we heard from one of them, president obama's former solicitor general said you, quote, will not compromise principle to favor the president. in 2006, former colorado senator salazar, a democrat, said that you have, quote, the sense of fairness and impartiality that is a keystone of being a judge, end of quote. jeffrey rosen praised you for your independence. so, let's start with my first question. i would like to have you
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describe, in any way you want to, what judicial independence means and specifically tell us whether you would have any trouble ruling against a president who appointed you? >> i'm sorry. i said that's a softball, mr. chairman. i have no difficulty ruling against or for any party other than based on what the law and the facts and the particular case require. i'm heartened by the support i have received from people who recognize that there's no such ings a republican judge or a democratic jud. we just have judges in this country. when i think of what judicial independence means, i think of byron white. that's who i think of. i think of his fierce, rugged,
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independence. he did his -- he said i have a job. people asked him what his judicial philosophy was. i'll give the same answer. i decide cases. it's a pretty good philosophy for a judge. i listen to the arguments made, i read the briefs put to me, i listen to my colleagues carefully and i listen to the lawyers in the well. this experience reminded me what it's like to be a lawyer in the well. it's a lot easier to ask the questions, i find as a judge, than it is to have the answers as the lawyer in the well. i take the process, the judicial process very seriously. i go through it step by step and keeping an open mind for the entire process as best i humanly can and i leave all the other stuff at home.
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i make a decision based on the facts in the law. those are some of the things judicial independence means to me. it means to mehe judicial oath i took to administer justice without respect to persons, to do equal right to the poor and the rich and to discharge impartially the duties of my office. it's a beautiful love. it's a stach tori oath written by this office. happy to talk about the separation of powers, too, if you like, mr. chairman or happy to answer another question, entirely up to you. >> your record made clear you are not afraid to fulfill your role independently and you just emphasized that. you vacated orders of administrative agencies acting outside their authority and you ruled on cases where congress has overstepped its bounds.
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i think you can maybe speak about the separation of powers, but at the same time, maybe you could give me a couple of your cases, demonstrate your committee to that independence of the executive branch of government. >> sure. on the first point, you know, i have decided as i noted yesterday, over 2,700 cased. my law clerks tell me that 97% of them have been unanimous. 99% i hav been in the majority. they tell me as well, that according to the congressional research service, my opinions have attracted the fewest numbers of dissent from my colleagues of anyone i served with that they studied over the last ten years. they speculate whether that's because i'm persuasive or believe in cleenlgialty.
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i don't know why it has to be a choice. my law clerks tell me in the few cases where i have decented, i am likely to descend from a democratic appointed colleague as a republican appointed colleague. that's, again, because we don't have democrat or republican judges. according to "the wall street journal," i'm told that of the eight cases they have identified that i have sat on that have been reviewed by the united states supreme court our court was affirmed in seven of them. now, i think louise might argue for the eighth. because in that case, the supreme court didn't like a procedural precedent that as a panel we were bound to follow. they remanded it back. we decided on the merits as the court instructed, denied. eight out of eight. on separation of powers, it is,
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mr. chairman, the genius of the constitution. madison thought that the separation of powers was perhaps the most important liberty guaranteeing device in the whole constitution. this is a point of civics that i do think maybe is lost today, how valuable the separation of powers is. that you have in article one, the people's representatives make the law. that's your job. i don't think it's an accident the framers put article i first. your job comes first. you make the law. article ii, the president's job is to faithfully execute your laws. our job, article iii, down at the bottom, is to make sure the cases and controversies of the people are fairly decided. if those roles were confused and
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power changed, founders worry that is the definition of tyranny. you can see why. judges would make rotton legislatures. we are life tenured. you can't get rid of us. it only takes a couple of us to make a decision or nine or 12, depending on the court. it would be a pretty poor way to run a democracy. at the same time, with respect, legislatures might not make great judges because they are answerable to the people. when you come to court with a case or a controversy about a past fact, you want a neutral, rigidly neutral, fair, scrupulously fair decision maker. you want somebody who is going to put politics aside. so the separation of powers, i
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don't think is lost any of its genius over 200 years. in fact, it's proven it. >> thank you. i have heard my colleagues and people not in this senate say that now, more than ever, we need a justice who will be independent of the president who nominated him or her. so, i would like to ask about your nomination and your independence. a lot has been made about the list of judges then candidate trump proposed as possible nominees. to me, it was the most transparent we have had in history and we didn't have secretary clinton give out such a list. of course you weren't on the first group that came out and otherwise added later. i'm curious when did you first learn that you were on candidate
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trump's extended list? >> mr. chairman, you are right, there were two lists, as i recall over the summer. i wasn't on the first list. i remember having breakfast one day with a friend who may be here. brian? there you are. you remember this. we were having breakfast one day and he said, beneaneil, you're n the list. i said you are right, i'm not on the list. he said you should be on the list. i said i love my life in colorado. i wouldn't change a thing. i'm a happy man. i have a loving wife, a beautiful home and children, a great job with wonderful colleagues. i'm a happy person. walking away from breakfast, i get an e-mail from brian saying there's a new list. and you're on it.
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that was the first i heard of it. >> i assume you thanked him? >> i don't know about that. i don't think -- you didn't know. i don't think we were all bit pros -- process that unfolded. i tried to live under a shell during the campaign season, watch baseball and football, go about my business but i did hear lots of talk of litmus tests om all around. it was in the air. and i don't believe in litmus
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tests for judges. i've written about that years ago. i wasn't about to become party to such a thing. i'm here to report that you should become reassured because no one in the process from the time i was contacted with an expression interview for a potential interview, no one in the process asked me for any commitments, any promises for how i'd rule in any kind of case. >> and that's how it should be. we just discussed your independence from the president but there's also independence from the legislative branch. it's odd some of the same folks who will claim you're not independent from the president will turn around and try to extract from you promises and commitments before they pass judgment on your nomination. the irony, of course, is that extracting commitments during the confirmation process is
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exactly what would undermine you as a judge. one way of doing that is asking about precedent. i have a book you co-wte on precedent. your 12 co-authors included judges from across the ideological spectrum, such as bill pryor, who was also on president trump's supreme court list and diane wood, who was reportedly on president obama's list. you've also touched on the value of press didncedent in speeches you've given or in your opinion. for instance in the speech
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honoring justice scalia, you said, quote, even when a hard case does arrive, once it's decided it takes on the force of precedent, becomes an easy kate -- case in the future and contributes further to the determi determinancy of our law. but you've also suggested that there may be circumstances where it's appropriate to revisit precedent. specifically you wrote it may be appropriate to reconsider a decision where it has become a, quote, precedencial island surrounded by see of law. so it m be times where it is appropriate reconsider certain decision, especially if more recent opinions have called into questions the rational of the original decision.
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i think all of us would agree, for instance, that brown versus board of education, which finally overruled, which each of these in mind, i'd like to explo explore, could you tell us what you believe is the value of precedent in our legal system? >> absolutely, senator. if i might, mr. chairman, go back just a moment to promises i have offered no promises on how i'd rule in any case to anyone and i don't think it's appropriate for a judge to do so no matter who's doing the asking. and i don't because everybody wants a fair judge to come to their case with an open mind and decide it on the facts and the law. one of the facts and one of the
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futures of law that you have to decide it on is on the basis of precedent, as you find out. and for a judge, precedent is a very important thing. we don't go reinvent the wheel every day. and that's the equivalent point of the lf precedent. and we have an entire law about precedent, the law of judicial precede precedent. precedent about precedent, if you will. that's what that book is about. it expresses a main view of 12 judges from around the country from presidents of both parties, justice breyer was kind you to quite a forward to it. it makes an excellent doorstop. in it we talk about the factors that go into analyzing precedent, any consideration of precedent. and there a bunch of them. you've alluded to some of them. the age of the prs didn'-- prec,
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the reliance on the precedent. has it been reaffirmed, has it built up, shored up or has it become an island. those are all considerations. its workability is a consideration. can people figure out who to abide it or is it too confusing? those are factors a good judge will tack into consideration when examining any decision. we start with a heavy, heavy favor of precedent. hamilton said -- i think it was hamilton, said that was one important feature of judge, if we're going to give them life tenure, they should be bound
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down by strict rules and precedence. president baker called precedent the anchor of the law. you start with precedent, you consider those factors in that late and, yes, in a very few cases you may overrule precedent. it not an inexorable command, the property has said. that's the law of precedent as i understand it and as i believe is expressed in that book with my very high lie respected colleagues. >> as a lower court judge, you're bound not only as supreme court precedent but as you've demonstrated the precedent of your own court but as a supreme court judge, this part of your job will be to decide when existing supreme court precedent need not be reconsidered. how will you decide when you revisit existing precedent? >> mr. chairman, i don't think the considerations change. it's the same analysis that i
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would have as a supreme court justice if i'm fortunate enough to be confirmed than i have when i'm considering circuit press didn'ts a ses -- precedence as a circuit judge. it's the exact same process. >> this is the 14th supreme court hearing that i participated in so i have a pretty good idea of some of the questions that you're going to get today. you're going to be asked to make promises and commitments about how you'll rule on particular issues. now, they won't necessarily ask you that directly, for instance, how will you rule on this issue or that issue. instead they'll probably ask you about old cases, whether they were correctly decided. of course that's another way of aski the very same question. they know that you can't answer but they're going to ask you anyway. i've heard justices nominated by
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president of both parties decline to answer questions like these. that's because as the nominee put it, quote, a judge sworn to the i'd no forecast, no hints for that would show not on disregard for the peacekeepers would -- you probably know that's what justice ginsburg said at her hearing and it's what we call the ginsburg standard. the underlying reason for this is undermines the very independent that we just talked about. i'd like to ask if you if you
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agree on this, on what happened. >> i do. if i ask you to tell me whether heller was rightly decided could you answer that question for me? >> senator, i'd respectfully respond that it is a precedent of the united states supreme court and as a good judge you don't approach that question a new as if it had never been decided. at that would be a wrong way to approach it. my personal views i'd also tell you, mr. chairman, belong over here. i leave those at home. mr. cotshell said what he wanted was a fair judge. that's what i wanted. i wanted a judge that would come in and decid


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