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tv   MSNBC Live With Katy Tur  MSNBC  September 5, 2018 11:00am-12:00pm PDT

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president in the case of former presidential records. that's one category i want to put on that. >> fair caveat. is the assertion of executive privilege by the president subject to judicial review? >> well, of course, because under the precedent, united states v. richard nixon, said two things. one, the executive privilege is constitutionally rooted. the special prosecutor in this case argued that there was in such thing as executive privilege and the supreme court rejected that argument and held that the executive privilege is rooted in the separation of powers and in article 2. >> the reason i'm asking doesn't have much to do with you. it goes back to a point we were talking about earlier in the hearing, which is that we have received hundreds and hundreds of pages of documents of your record that look like this. they both say committee confidential across them at an angle and then across the front
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they say constitutional privilege. and as a member of the senate, this is not a question. i'm speaking to my colleagues. i find myself in a quandary here about being denied those particular documents because i cannot find any assertion of the privilege. these documents just suddenly appeared and somebody had put constitutional privilege on the page and wiped out all the text that was on the page. and my understanding is that there is ordinarily a process for getting to that determination that allows for ultimately a judicial review. and we have failed to get subpoenas out of the committee for documents, so we can't trigger it that way. and there is no apparent assertion of executive privilege that i can find in the record of how this particular paper got here. so i just wanted to establish some of the basic ground rules of executive privilege with you because i think we agree on that. i think that's basically
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commonly agreed and put that into the context of what we are looking at and particularly with respect to chairman leahy's questioning earlier. if some of the documents he is looking for have now been protected by this nonassertion/assertion of executive privilege, we have a problem. it is a continuing problem in the committee. we have had other witnesses come and do non-assertion/assertions of executive privilege. i am sorry to drag committee business before you, but i think it's important to get this right. >> can i make one addendum based on my experience from the time, which is i don't think formal assertions usually occur until after there has been a subpoena. >> which is why not getting a subpoena bollicks up the process. the role of the federalist society in bring bringing you here today has been of interest to me.
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we spoke about it quite a lot when you and i met in my office. mr. mcgahn, who is sitting patiently behind you. i can see him over your shoulder. >> yes. >> has said that the federalist society was in-sourced into the white house to make these recommendations specifically that you should be the nominee. you have said this. regarding president bush, that he thought it was, and i'm quoting here, improper to give one group, especially a group with interests in many issues, a preferred or favored position in the nomination process. those were your words speaking, i guess, to the federalist society, national lawyers convention. on another occasion you wrote a
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draft speech for attorney general gonzalez or white house counsel gonzalez. probably white house counsel gonzalez to deliver to the federalist society, and you said in that speech, as a matter of constitutional principle, it is simply inappropriate, we believe, to afford any outside group a quasi official role in the president's nomination process. how do you square those two comments about the role of the american bar association in the nomination process with the role of the federalist society in your nomination process, assuming that mr. mcgahn was speaking accurately when he said they had been insourced to the white house for this process. >> i can speak to the aba part of that. president bush in 2001 had to make a decision of how the aba should play its usual rating role with respect to nominees, and the aba takes files, amicus briefs and policy positions on
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issues. therefore, after some deliberation it was decided that there was nothing wrong with the aba rating the nominees, but to give an organization that files amicus briefs and takes policy positions a preferred role in the constitutional nomination process was unfair in some ways -- >> it would be a fairer description of the federalist society's role in your selection as the nominee to say that it was preferred over other groups? >> well, my experience was when justice kennedy retired on the wednesday, mr. mcgahn called me later that afternoon, said we need to talk on friday. he came over to my office on friday evening or late afternoon. we talked for three or four hours. interviewed and going through the usual kinds of questions you would go through when you are embarking on a process like this. and then i met with the, interviewed with the president
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on monday morning. >> so it your testimony that you don't know what the role of the federalist society was in your selection? >> my experience and my personal experience and what i know is that mr. -- that president trump made the decision, for starters. president trump made the nomination. i know he, as i explained yesterday, i know he spent a lot of time in those 12 days on this issue, and i was aware of that. i also know that mr. mcgahn was directly involved with me and spent a lot of time on it, and i also know that the vice president -- >> but you have no knowledge to share with us today about the role of the federalist society and how they were in-sourced into the white house? that is a mystery to you as well as to us. >> i'm not sure what mr. mcgahn meant. i think by that comment, i think federalist society members are -- the lawyers in the administration are federalist society members.
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and so it should not be a surprise that -- because it's an organization -- >> leonard leo's role specifically from the federalist society? >> i don't know. i don't know the specifics. >> let's go from specifics to generals. and let me put up a graphic that shows some of the folks who fund the federalist society. it's a pretty significant group of people who tend to share very conservative and pro-corporate points of view. it reflects that at least 14 of the donors are actually anonymous, which is a very unfortunate part of our political world. actually, probably more than that because doan he is trust here is an organization whose sole purpose is to launder the identity off of big donors so that a recipient of funds can
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report that they got the money from donors trust rather than the true party in interest. so we don't know how much anonymous money flowed through them. but i would contend that this is a pretty strong group of right-wing conservative pro-corporate funders. and presuming that to be true, should that give you or anyone in this process pause that groups like this may have had such a significant role in selecting you to be in this seat today? >> senator, mr. mcgahn was the one who contacted me. i interviewed with the president. i know the president was -- i'm the president's nominee. he was directly involved in making that decision. i'm sure he consulted with mr. mcgahn and others. i know he consulted widely with
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a lot of people to get -- very widely to get input on at least the people who were the finalists. so that part of it, my 12-day experience was with the white house counsel's office and the president and vice president, too. >> okay. >> and i also don't -- >> whatever -- >> i'm not -- >> whatever the rule is of the federalist society it was, and there is plenty of reporting, we don't need to litigate that between us, you don't know, is what you have testified, and that's fine. >> on my process. again, yes. >> but you are fairly familiar with the process generally because you used to run it in the bush white house or have a significant role in it, the process of judicial nomination selection. judicial nominee selection, correct? you have been inside that machine? >> i did not run it. judge gonzalez when i was in the counsel's office was the counsel. >> but you have been inside the process? >> i have been inside the
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process, yes. >> so the next thing that happens going forward is that we see the judicial crisis network showing up, and they spend millions and millions and millions and millions of dollars to run ads urging senators to support you. now, i don't know whether we can show that those were the same funders because they are engaged in what is called, as you know, dark money funding. they don't report their donors. but i'd be prepared to make a very substantial bet that there is enormous overlap between the funders of the judicial crisis network campaign for your confirmation and the federalist society donor group to the extent that we're aware of it, since so many of them are aanonymous. hypothetically, should the
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american people have concern about the role of very, very big spenders and influencers doing things like being involved in the selection of a supreme court nominee and running dark money campaigns to support the confirmation of a nominee? is there any cause for concern there as a general proposition? >> there are a lot of premises in your question that i'm not sure about. >> i'm not asking to you to accept the policemenis as true. it's a hypothetical. if there were very, very significant big special-interest funding behind the organization that was responsible for it, selecting you and recommending to the president that he nominate you, and again from a very similar group in supporting the dark money campaigns that are running on your behalf for your confirmation, would that be a matter of concern, or is that just all fine and we shouldn't care about getting the answers?
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>> so, two things, senator. one is that i described the process i went through with mr. mcgahn, president, the vice president, and that's what i know about my process. two, on the ads, there are a lot of ads against me as well. and i have seen those. and our family has seen those. then there is ads for me, and we have seen those, too. as chief justice roberts said in his hearing, it's a free country and there are ads for and against. >> should we as citizens know who they are, who is funding the ads, just as a matter of citizenship? >> first and foremost, i think that's a policy question for the congress to decide on what disclosure requirements it wants to put in. if those disclosure requirements were put in or state governments could try to make disclosure requirements, i think some have tried, and then there would undoubtedly be challenges to that. what's the first amendment implications of that? that would come to a court.
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i would keep an open mind on that case under the precedent, first amendment law, and would think about that. the policy question i think is really for congress in the first place to determine, assess, study exactly what kind of disclosure requirements should be put in place. >> the potential hassard there is that the unleashed power of unlimited political dark money then becomes like a ratchet. the obstacle to solving that problem. and i hope you can understand that as a matter of political principle. >> i do understand the concerns about money in the political system. when i worked for -- in the time it takes all of you, and when i worked for president bush in the '03/'04 timeframe, for example, and how many fundraisers he had
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to do. going back to the september 11th point and time and burdens on the presidency, running for president while being president -- >> it's easier now because you can get a huge special trl to set up a 501(c)(4) and drop tens of millions and dollars and it's like that and the public doesn't know who is behind it. only a very few people are in on what the deal is. it's gotten easier since president bush, but not better. >> well, i think for some members, particularly in the house, if you are running for re-election, a third-party group comes this against you, and you don't have -- you have to go out and fundraise and spend more time. as least as i understand it, that's the concern i have heard over the years is the time that each of you has to spend and the members of the house -- >> let me continue on forward through this problem of funders. on the court, on the d.c. circuit and potentially on the supreme court, you will often see cases brought by groups
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like, for instance, the pacific legal foundation. are you familiar with that group? >> i have seen briefs by the pacific legal foundation. >> do you know what they do? >> i'll take your description. >> okay. my description is that they get money from right-wing conservative and corporate interests and they look for cases around the country that they believe they can use to bring arguments before the court. i argued against them in the supreme court at one point. they came all the way across the country to the shores of winnepog pond, rhode island, to hire a client whose case they could take to the supreme court with the purpose to make a point. they are not alone in doing this. there are a number of similar
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groups who perform this service. and it causes me to think that sometimes the true party in interest is actually not the named party before the court, but rather the legal group that has hired the client and brought them to the court more or less as a prop in order to make arguments trying to direct the court in a particular direction. is that an unreasonable concern for us to have about the process? >> senator, i think there are public interests litigation groups spanning the ideological spectrum that look for cases to weigh in on as amicus briefs, and also of course there have been historically you look for, as i understand it, people try to identify suitable plaintiffs
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to challenge -- and this again is across the entire ideological spectrum -- >> what are the signals that that's gotten out of hand that there is something rotten in denmark? >> that's an interesting question, senator, and i think it's an important one, but it's not one that i have a great answer to. >> let me propose one thought to you, which is that the supreme court at least should fix its rules on who the amicee are who turn up and require some disclosure of who is really behind them. the only thing the supreme court requires is to disclose who paid for the brief. the brief itself is not a very big expense. so very powerful interests can come in behind an amicus group that has a lovely name like citizens for peace and prosperity and puppies, and nobody knows who is really an interest. that would be one thing that i think would be a concern. another thing that would be a concern i would think is when you see special interest groups rushing out trying to lose cases
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in order to get before a friendly court. it really seems improbable that somebody who has actually tried cases and who has been around courtrooms a lot and who has seen a lot of litigation, a lot of great litigators, i have never seen anybody once try to lose a legitimate case. so in the wake of justice alito's signaling about what then became fredricks and janice to see these groups rush out and ask the court to rule against them so they can get hot foot up to the supreme court where they expect a good outcome, to me that, there is just something that doesn't seem right about that. that seems to me a little bit like faux litigation, that there is something else going on other than real parties having real arguments and the supreme court ultimately settling properly prepared real disputes. do you have any concern about
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the optics of people rushing to lose cases below to come before what they think is a friendly supreme court? does that seem just a little bit odd? >> i will -- i will acknowledge, senator, i'm not entirely familiar with that phenomenon. i would be interested -- >> okay. i might follow up with you with a question for the record to get your more deliberate thoughts about it. >> and on your amicus thought, i'm interested in the specifics of your proposal, and certainly if confirmed i would -- >> here is the concern. you know perfectly well that the court depends on, as much as anything, on its reputation. you don't have a purse and you don't have an army. you stand on your reputation in the judiciary. and you must not only act
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justly, but be seen to act justly. what i have laid out is a scenario in which very big special interests have a significant role in funding the group that i believe and much reporting says is responsible for getting you to the top of the greasy pole of nominee selection, and that the fasame funders are behind the operation that is politically pushing for you. >> senator, we will add one minute to your time. >> thank you. >> that some portion of the supreme court's docket is made up of strategic cases rather than real litigation in which somebody has gone out to find an appropriate plaintiff, hire the client, bring them in, and by
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the way when they're done with them they fire the client rather unceremoniously in my experience. then when the proper case comes up, you see this flood of special interests amicae with terrible transparency into who is behind them. in one case we tracked one of these big funding groups behind 11 different amicus briefs in the same supreme court case. so the whole amicus thing begins to have a really rank odor to it. then at the end of the day where things really start to go haywire, in my view, is when you go back to those five to four decisions that i talked about yesterday, which i think is the most heartbreaking thing that i experienced in my political life. i used to argue in front of appellate courts. it was what i did. not at your level, but i have been in front of the first circuit, the supreme court once, the row island supreme court more than i can remember.
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i kind of thought that i was a reasonably good appellate lawyer. the idea that our supreme court is deciding as many as 80 cases under justice roberts on a pure partisan divide, i think that has a real signaling problem. and i hope that you will at least consider that that's something that the court needs to cure rather than make worse in order to continue having its credibility. i think 80 cases in which all of the republicans go one way and can't bring a single democrat appointee with them, that's a tough data point. and then when you look at that tough data point and you see that more than 90% of those cases, if you look behind at the outcome, it had a big one of the interests that i mentioned that are very, very important to big special interests that were implicated. and then when you look at the win/loss rate in those cases and it's 100%, 100% for this crowd
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of big special interests? and then here's where you come in at the end. this is the roberts five majority in those 5-4 cases where the conservative groups have come in to make their pitch. they have won 92% of the time in those 5-4 cases. if you figure they are throwing a couple of long balls, you know, like hail mary's, then maybe that's the 8%, that's a hell of a record. then if you look at your record on the d.c. circuit where these conservative groups come in, you line right up. 91%, 92%. and i think when you put the whole saga together from the big special interests lurking behind the federalist society to the big special interest funding, the judicial crisis network, to the big special interests behind the pacific law foundation and the washington law foundation
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and this little array of, i would say, strategic litigators who are funded by corporate interests and right-wing interests, and then amicae, who we don't know who is behind them, and you see this result, that's a tableau that is an alarming one i think for the court. i would urge you to think hard about whether that's the direction you would want to continue to go as an associate justice of that court because at some point those numbers catch up with you. at some point, as i said yesterday, pattern is evidence of bias. >> senator, a couple of thoughts. first on the amicus briefs, in my experience, i pay attention to the quality of the arguments in the briefs, not the identity of the parties on them. i take your point on the disclosure. i would be interested in the specifics of anything you are talking about the disclosure
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requirements for the supreme court. two, i do believe deeply in the idea that we're a team of nine and need to be working together. i take the point, too, that it's very important if i'm confirmed that i work with as best i can, and i will, to maintain the confidence of all the american people and the independents and imparti impartiality of the supreme court at all times. i am aware that we ultimately -- i'm aware everything i do, if i were to be confirmed, would help effect that, how i decide, what i write in opinions, how i treat litigants in oral argument, where i speak, when i speak, what i teach, what i say on the outside. everything goes into how i behave, what i do in my volunteer time. everything goes into the impressions of me as one part, if i'm confirmed of the supreme
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court. i take very seriously your broader point about maintaining confidence of all of the american people and the integrity and impartiality and independence of the supreme court. so i appreciate that broader point. >> my time has expired, chairman. there will be a second round? >> there will be. i am happy to give you an additional minute in light of the fact that you had two additional interruptions. >> this has made landfall. when you see polling that shows that 49% of americans think a corporation will get a fairer shot in the united states supreme court than an individual. seven times as many think it's the other way. now, you still have a few to work with who are undecided on that question, but the fact that about half of the american
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people already believe that corporations will be treated more fairly in the united states supreme court than human beings will, and the alignment of that with the facts that i have shown you about the supreme court's record of 80 partisan decisions, 92% involving big corporate special interests and 100% win rate for them in those cases, i think we are at a tough place right now and i think we really need to get back away from that. so thank you. >> thank you, senator white house. >> you are hearing senator lee, who is sitting in for chairman grassley just temporarily. a bit of housekeeping. a crosstown in washington over at the white house, the president has just spoken to reporters about what we've been watching. this confirmation hearing, and about what washington has been talking about, the new book not yet out from bob woodward. we wanted to show you those remarks.
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welcome right back to the hearing at the conclusion. >> mr. president -- >> i am happy with the kavanaugh hearings. i watched today for a little while. i saw some incredible answers to very complex questions. he is an outstanding intellect. he is an outstanding judge. he was born for the position. i heard as long as ten years ago people were saying he should be a supreme court judge. i didn't know him at the time but i was hearing from a lot of people, friends of mine from washington and other places saying that brett kavanaugh should be a supreme court judge someday. and i'm honored that i gave him the chance. i have watched his remarks. i have watched his performance. i have watched his statements. honestly, they have been totally brilliant. i think that the other side is grasping at straws, and really the other side should embrace him because you are never going to find better in terms of talent or intellect than what you have in brett kavanaugh.
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>> the book? the book? the book means nothing. it's a work of fiction. already general mattis has come out very, very strongly. i think you know general mattis. he does what he wants to do. he was insulted by the remarks that were attributed to him. he came out with a strong statement. i assume you read it, i hope you read it last night. general john kelly the same exact thing. he saw it. he was insulted by what they said. he is right here. he is insulted. he couldn't believe what they said and he put out a very, very strong statement. and many others. and other statements are coming out. the book is a work of fiction. if you look back at woodward's past, he had the same problem with other presidents. he likes to get publicity, sell some books. we have done more as an administration than any other administration in already less than two years. it's incredible. we will soon be approaching two
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years. but there is no administration probably, and even you folks have generally acknowledged this, that has done more work when you look at tax cut, regulation cuts, supreme court justices, the court system generally and so much more. even if you look at the health care programs that we're passing and all of the things we've done, we're saving social security, the democrats will destroy social security. we're saving medicare. the democrats want to destroy medicare. you look at what they are doing, they are going to destroy medicare. and we will save it. we will keep it going. we are making it stronger. we're making social security stronger. we're making our whole country stronger. so all you have to do is look at the achievements. but i was very honored -- >> the president's remarks from just moments ago. as promised, back into the hearing room. the questioning back to the republican side, senator mike lee. >> different perspectives on certain issues. but they are all, i think we are
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fortunate to have eight hard-worki hard-working justices who have outstanding records, are committed to the constitution and committed to the independence of the judiciary. >> what about in the circuit court, the d.c. circuit where you have served? would it be fair to suggest that a case is somehow leslie legitimate. ly decided if that case were decided along the lines of which president appointed which member of the d.c. circuit? >> the precedent stands either way. >> thank you. i want to get back to a separation of powers point that has come up along various lines of questions asked by my colleagues today. is the constitution relegated to the judicial branch? is it something that is to be upheld and interpreted only by
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those who wear black robes? >> no, senator. let me take you through the process. so congress, of course, passes laws, and in considering laws congress will also often assess the possible constitutionality of the laws passed. so in the first instance, when you are considering the passage of a law, you might assess the first amendment implications or, if it's a national security, the fourth amendment implications or the due process fifth amendment implications -- >> and we have taken our own oath to uphold the constitution. >> so you do your best. then the executive branch, as well. whether to sign the bill, for example, for the president, if the president has a constitutional concern or a policy concern. but the president could veto the bill for that reason. that has certainly happened historically. and then when it comes to the court, of course we are -- we
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assess a assess in cases or controversies the constitutionality of a law that is challenged in the context of a specific case or controversy. president washington, george washington, asked the supreme court for an advisory opinion in his first term on a disputed legal issue. actually, it might havie been hs second term. president george washington asked for an opinion. the supreme court respectfully wrote back and said we don't provide advisory opinions. we only decide cases or controversies, thereby, i think, underscoring the point you're making with your question, which is constitutionality of laws as assessed -- as assessed in the first instance by congress and the executive. >> so it would be not -- it would not be inappropriate for us as members of the legislative branch to decide to protect
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something that we believe is constitutionally protected regardless of where we might place our bets on what the courts would do with it? if we see a particular right that might be jeopardized by an act of congress, we are considering, wouldn't be inappropriate for us to say, look, we are not sure exactly how far the supreme court will go here. out of an abundance of caution, out of respect for the constitution, we are going to draw the line more carefully to make sure we don't step into unconstitutional territory? >> that has happened historically and i think happens today. and that underscores how the constitution tilts towards liberty in so many different ways. it tilts towards liberty because it's hard to pass a law, as you know, with both houses and the president, and then not only might there be policy objections, but members of congress might say, well, even if the supreme court would uphold this law based on my assessment of the supreme court, i have a first amendment objection, fourth amendment
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objection, eighth amendment cruel and unusual punishment objection, and based on my view of the constitution i am going to vote no on this law. that's another way in which the constitutional structure fits together and tilts towards liberty. >> for that very reason, it would probably lead to some bad results if we were not to do that? in other words, if we were always inclined to say let's pass this if it's unconstitutional, the court will do something about it. can you foresee instances in which that could create problems? >> yes, senator. i think justice kennedy has written eloquently about this. each official, each officer in congress, each senator, the president takes an oath, of course. constitutional oath to abide by the constitution. that's very important by each member to understand and underscore, as i know all of you do, and that is an important part of the separation of powers process.
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i don't think that the framers thought, well, let's pass something even though we, ourselves, meaning the members of congress, think there is a constitutional problem here. that's not how it has worked historically, nor do i think that's how the framers necessarily intended for congress to work. >> and there are myriad instances, moreover, where we might enact something that might not be challenged for a long time or might be difficult to challenge due to somebody lacking standing, absence of a ripe controversy, so for the? >> that particularly happens in the national security context i think, senator. especially if it's something done in a foreign country against foreign citizens that might be difficult to get into court in some way or another. >> one of the reasons i focus on this today, there was an exchange you had earlier today about the indefinite detention of american citizens apprehended
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on u.s. soil. there was some discussion surrounding this suggesting that ex parte might respond to this. you don't need to respond to this, but i think it's a point that needs to be mentioned. justice scalia mentioned in his dissent in homdy that ex parte curran was not this court's finest hour. in fact, what happened was the case was argued, it was decided the next day. the saboteurs were taken out and executed the next week. then the opinion itself was issued many months later. so, again, i'm not asking you to opine on the ongoing validity of ex parte current, but the point is you seem to agree that congress certainly has the authority to protect liberty, notwithstanding the possibility that the supreme court might not step in?
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>> absolutely. a couple of points in response to that, senator, if i might. justice scalia, of course, decisi dissented in that case, joined by justice stevens. one of his more powerful dissents on individual liberty. one of his more pour dissents protecting individual liberty there, ruling justice scalia with justice stevens that it was impercent miscible to hold an american citizen in long-term military detention, and i thought that was an important opinion of his. when i gave a talk, justice scalia identified that as one of his most important opinions and a very powerful opinion. on the kieran opinion itself, it dealt with some many who were not american citizens. you're right.
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there was an american citizen involved. you are right, also, of course, you have studied this as much as anyone, but the court did resolve the case very quickly, and the opinion, i have spent many an hour trying to decipher certain pracaragraphs for cases have had. it's not easy. the court, to its credit, give a little credit, did have an eight-hour oral argument. i read the transcript of that to try to figure out what was going on in the opinion that did not unlock the box completely for me on what was going on in the kieran opinion. your point, justice scalia said it was not the court's finest hour. it was a rush. it was a rush. and rushes, sometimes the court has to rush, but rush decisions in a judicial context sometimes aren't always the best. >> on that point, would you be open to the idea of bringing back the era of the eight-hour
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oral argument? >> the eight-hour oral argument? we did have one in an en banc case two years ago that went all afternoon. before we got back to the conference rooms i don't think anyone was saying we should do that in every case. >> understood. understood. let's talk about judicial philosophy for a minute. i would like to discuss federalist 78. in federalist 78, hamilton discusses the dichotomy between will on the one hand and judgment on the other. will being something that is exercised by the political branches, primarily by the congress, by the legislative branch, and judgment being something exercised by the judicial branch. what's the difference between tows two? >> the judicial branch is deciding cases or controversies according to law. the legislative branch is making the policy, exercising the will.
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the judicial branch can never exercise the policy-making role that is reserved to the congress. admittedly, that's speaking at a level of generalality. there are tough cases at the margins. as a general proposition, it's important for every judge to go in with a mind set of, i'm not the policymaker. i'm the law interpreter, the law aprior in a particular case. i think that's a very important part of the federalist papers. it's woven into the constitutional structure into article 3, and that judges, i'd certainly -- i have tried for 12 years as a judge on the d.c. circuit to incorporate that basic foundational principle to how i approach each case. it is a very critical bedrock principle of what judges do in our constitutional system. >> within that framework, when we enact a law, what determines
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what it is that you have to intercept? -- interpret? is it what we say or subjectively intended? >> it is what is written in the text of the statute, senator. justice kagan said it well at a talk two years ago, maybe three, at harvard law school. i was present in the audience. she said we are all textualists now. she was talking about justice scalia who brought about significant change this the focus of all federal judges. i have seen it acrossed supposed philosophical spectrum. all federal judges pay close attention to the text of the statute, and that's why i think justice kagan said we are all textualists now, because she explained that every judge really cares about the words that are passed by congress. now, why is that? i think about it both from a formal and a functionalist perspective. as a formal matter, the law passed by congress is the
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binding law as it is the what is signed by the president. it's gone through the senate and the house, and that is the law. but it also is a practical or functional matter. i think having seen the legislative process, i know how compromises come together in the house and the senate, within the senate, within the house. there is negotiations late at night over precise words and compromises, e compromises, inevitably. when we depart from the words specified in the text of the institute, we are potentially upsetting the compromise that you all carefully negotiated in the legislative negotiations that you might have had with each other. so that's a danger that i try to point out when we are having oral argument in a case or deciding cases that, if we deviate from what congress wrote, we are potentially upsetting this careful
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compromise, even if we think we would have struck the compromise in a different place. as judges, that's not really our role. as a formal and functional matter, i think it's important to stick to the text. there are canons of interpretation which owe kag-- cause you to super impose a presumption on the text. otherwise, sticking to what you passed is important. >> you certainly consider yourself a textualist. if you follow justice kagan's statement, we are all textualists now. that's what judging is? >> judging is paying attention to the text. in starch other cases, paying attention to the text of the stuch, informed by those canons of instruction, presumption of men men rea, things like that. some of the things are not so settled, which is a whole separate half hour of discussion. >> how does textualism differ
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from originalism? >> to my mind, originalism means constitutional textualism, meaning the original public meaning of the constitutional text. now, originalism, it's very careful when you talk about originalism to understand that people are hearing different things sometimes. so justice kagan again at her confirmation hearing said we are all originalists now, which was her comment. by that she meant the precise text of the constitution matters. by that, the original public meaning. of course, informed by history, tradition and precedent those matter as well. there is a different conception that some people used to have of originalism, was it original intent? in other words, what did the people, some people -- >> subjectively? >> yes, and that has fallen out of the analysis because, for example, let's just take the
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14th amendment, equal protection clause. it says in the text equal protection. equal means equal as the supreme court said in strawder. the law shall be same for black and the white. brown v. board focuses on the text. there were raysi racist members of congress who didn't think it should apply in that way to certain aspects of public life. we don't, if you are doing, paying attention to the text, you don't take account of those subjective intentions, and nor is it proper as a general proposition to take account of the subjective intentions. they could be evidence in certain cases, the first amendment, for example, of the meaning of the words. >> of the original -- >> of the original public meanings. they could be evidence of that. but you don't follow the subjective intentions. so original public meaning, originalism, what i have referred to as
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constitutionaltecticonstitution- constitutionists, i think those are referring to the same things, the words the constitution matter. as i have said repeatedly, you look at historical -- the history. you look at the tradition. federalist 39 -- 37 tells us to look at the liquidation of the meaning by historical practice easter time and then you look at precedent, which is woven into article 3, as i said, in federalist 78. but, you know, start with the words as justice kagan said. we are all originalists now in that respect of paying at least some attention to or more than some, paying attention to the words of the constitution. >> if we stipulate for our purposes today as we're having this conversation that originalism refers to basically textualism applied in the constitutional sphere with an eye towards identifying the original public meaning of the constitutional text at issue, you're an originalist? >> that's correct. and justice kagan -- as justice
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kagan said, that's what she meant, we are all originalists now. i think she said what she meant and meant what she said when she said that. >> what would be the argument against that? to me that sounds like judging. what would one argue against that being that type of judge, against being a textualist originalist? >> well, different philosophies of what a judge does. but i think the judges, you know, with what the role of a judge is. i think article 6 of the constitution says this constitution shall be the supreme law of the land. the word law is very important there. it's not a set of aspirational principles. it's a law that can be applied in court. what is the law? the law are the words that were ratified by the people and, therefore, can be applied in the courts of the united states. and it says the spleem law. what does it mean by that? when you pass a statute, that is
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inconsistent with the constitution, the supreme law controls, namely, the constitution controls over a contrary statute. that's of course discussed in federalist 78 as well of what is the supreme law of the land and the constitution is the supreme law. again precedent, historical practice subsequent to the passing of the text. we see that for example on establishment clause cases. the court will often look at the text. what is the historical practice. and precedent, which is rooted in article 3, those things go in it. the words, the original public meaning are an important part of constitutional interpretation and has been, i think, throughout. >> let's suppose congress in its infinite wisdom with it's approval rating that ranges between 9% and 11%, making us slightly less popular than raul castro in america and slightly
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more popular than the influenza virus, what if we decided that we are all busy. there are parades to attend. there are political rallies to t tired of the busy work of making laws and we also don't want to make ourselves accountable for the laws we pass. it's just easier just to pass broader statements so we say we herebypass a law that says we in the united states of america shall have good law and have hereby delegated the power to promulgate and interpret and enforce good laws in the united states. what constitutional issues do you see there? >> senator, the congress is, of course, assigned the legislative power in article 1 of the constitution. so if it delegates wholesale the
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constitutional power to another body, then that naturally poses a question of whether the body exercising that power ultimately has improperly exercised the legislative power and whether that rule or what have you that is enacted by that body is lawful, because it was not enacted by congress. so the framers intended to congress would enact the laws and that the executive would enforce the laws and that the judiciary would, of course, resolve cases and controversies arising under those laws. >> and yet in some respects it's not that far removed from some of what we do today. we may not pass something as extreme as what i've described in my hypothetical but in some cases we'll say we'll have good law in area x and hereby give commission y the power to make and enforce good laws in that area. so is there some point at which we cross a threshold of
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unconstitutional delegation? >> well, the supreme court, as you know, senator, has a nondelegation principle, at least under current precedent it is allowed the delegation, and i don't want to get too specific here, but it has allowed some delegation. some justices are judges would say actually when the executive enacts rules pursuant to those delegations that's the exercise of executive power but i think there's pushback on that. the supreme court has a doctrine on the nondelegation principle. the line is debated on where that should be drawn, but there is precedent that does suggest that at some point congress can go too far in how much power it delegates to an executive or independent agency. >> and when we do that at some point, we're shirking our own responsibility because we're making lawmakers rather than
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laws and we're also consolidating into one body the power to make and enforce laws, which is not only something that could lead to tyranny, it's the very definition of tyranny itself. i want to get to the campaign finance discussion that you were having a few minutes ago with senator whitehouse. with regard to citizens united, didn't the supreme court uphole the disclosure requirements at issue in citizens united? >> it did. i believe that was an 8-1 margin. >> and in fact you've written on this, that there is a distinction for first amendment purposes, for constitutional purposes, between laws mandating disclosure and laws banning the doing or the saying of something. isn't that right? >> that is what the supreme court has said in certain contexts, and that is the law as set forth by the supreme court. citizens united is a good example of that, senator. >> and in a case called emily's
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list versus fec you wrote that disclosure requirements trigger rights that receive less first amendment protection, close quote, than speech prohibitions, other types of speech prohibitions. >> and i think that followed from supreme court law and is consistent, i believe, with subsequent supreme court law. of course the subsequent supreme court law controls. >> do you have a favorite among the federalist papers? >> -- i'm not asking you to choose from eliza and -- >> no, that's right. yes. so i like a lot of federalist papers. federal 78, of course, the independent judiciary, the role of the judiciary.
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federali federalist 69, which says the presidency is not a monarchy is very important when hamilton explains all the ways that the presidency is not a monarchy in our constitutional system. i think that's very important. federalist 10, which talks about factions in america and explains that having the separation of powers and the federalism system dividing power in so many different ways would help prevent a faction from gaining control of the entire -- all the power for the people of the united states, and that makes it frustrating at times because it's hard to pass new legislation, but that also, that division of power helps protect individual liberty. i think that comes a bit from federalist 10. federalist 37 and 39 talk about on the one hand how we are just talking laws that are the constitution over time can be the term liquidated by historical practice. what does that mean? that means that as the branches
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fill out the meaning of the constitution over time with practices, those can be relevant in how the court subsequently interprets certain proevisions. we talk also about the national and federal government, so the combination in 39, the combination that we have, this odd -- that's the genius rights of having a national government plus state governments and within the national government, the house is proportional representation, the senate is state representation. that interesting compromise, which madison, boy the way, was opposed to, but compromise at the convention. federalist 47, when senator klobuchar mentioned yesterday, the cumulation of all power in one body is the very definition of tyranny. i start my separation of powers class every year with that exact quote that you read yesterday, senator klobuchar, because that's very important.
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51, if men were angels, we wouldn't need government. so sorry, i've got eight kids. >> it's brilliant and i think that's a greatest hits list. if these were on spotify, i'd say you put together a list of those. let's close in the minute and a half i've got left, i gave myself an additional 30 seconds because of the two interruptions there. tell me how you were informed by federalist 51 and how that relates to your roll as a jurist now on the d.c. circuit, the role that you would play if you remember confirmed to the united states supreme court. this understanding that government is an exercise in understanding human nature. if we were angels, we wouldn't need government. if we had access to angels to govern over us, we wouldn't need all these rules, these cumbersome rules that make government so inefficient and so frustrating. why is that important and how
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does that affect you as a judge when trying to interpret the constitution and trying to interpret acts taken pursuant thereto. >> that's an interesting question, senator. i think we recognize that we're all imperfect. first of all, all of us as humans are imperfect, and that includes judges and that includes legislators, it includes all of us are imperfect. so we recognize that in how we go about setting up our government. if there were some perfect group of people, we'd put all the power in that one body. but because we're imperfect, putting all the power in that one body would be, as senator klobuchar was saying, the definition of tyranny. so i think how we deal with the imperfection while also having a government is dividing the power, separating the power, and again to my mind that all reinforces why the framers, the genius, despite the flaws in the constitution, and there were flaws, the genius of separating
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the legislative, executive and judicial powers, tilting toward liberty and then having a federalism system where we'd have state governments that can further protect liberty and be laboratories of democracy as well. i think all of that is because we're imperfect and because we recognize the imperfections. it's also why we have things like a jury system. even within the jury, we didn't trust a judge to do trials on his or her own, criminal trials or civil trials. we have a jury system to recognize and we have usually 12 and that is designed to recognize that we're imperfect and sometimes that's why we have group decision-making. that's why we have 535 legislators. that's why we have 9 justices. we don't usually have one person. and so i think that all maybe stems from the same fi
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philosophical understanding that we're imperfect beings and that we divide power and make sure that no one person in a jury situation or other situations where liberty can be affected is exercising total control. >> thank you very much, judge. my time has expired. i am not the chairman of this committee, even though i'm playing him on tv. i understand that under the previous order entered before he left, we're supposed to take a ten-minute break. we'll stand in recess for ten minutes. >> you heard the man. at 3:00 straight up eastern time, a ten-minute break, even though he is acting in place of chairman grassley, he's going to follow chairman grassley's rules. we've been watching and listening with a lot of our friends, including here in the studio with us in new york. mimi rocah, a veteran of the southern district of new york and neal. as the government's lawyer,


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