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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. It's day two

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Speaker 1: of the confirmation hearings for Supreme Court nominee Brett Kavanaugh. Today,

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Speaker 1: the senators began questioning Kavanaugh on issues including abortion, presidential powers,

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Speaker 1: and gun rights. Democratic Senator Diane Feinstein asked Kavanaugh about

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Speaker 1: his opinion arguing for striking down the DC assault weapons

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Speaker 1: ban and saying it was unconstitutional to ban assault weapons

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Speaker 1: because they're in common use. Here's his response. Yes, and

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Speaker 1: I was referring to some semi some kinds of semi

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Speaker 1: automatic rifles that are banned by d C are in

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Speaker 1: wides uh, widely owned in the United States, and now

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Speaker 1: seemed to be the task that the Supreme Court had

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Speaker 1: set forth. Joining me is Neil Kincock, professor at Georgia

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Speaker 1: State University College of Law. Neil, what struck you about

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Speaker 1: Kavanaugh's answers this morning. Well, he's being very careful, so

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Speaker 1: the process proceeds with senators coming at him with sharp

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Speaker 1: implements and him trying to apply anesthesia. And I'm afraid

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Speaker 1: the result for for those of us watching feels like

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Speaker 1: we've been lobotomized. Well, you know, Supreme Court nominee seem

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Speaker 1: to be more and more adept at evading answers. So

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Speaker 1: Kavanaugh has said he doesn't want to comment on things

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Speaker 1: that were litigated before, like presidential subpoenas. He doesn't want

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Speaker 1: to answer hypotheticals on presidential pardon power or something that's

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Speaker 1: going to come up. He doesn't even want to comment

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Speaker 1: on past Supreme Court rulings like row View Weight, except

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Speaker 1: to say it's settled precedent. So what is the point

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Speaker 1: of these hearings. Well, it's a kind of pookie, right.

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Speaker 1: So the hope is that among senators is that they

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Speaker 1: will catch him and trip him up and he'll say

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Speaker 1: something substantive um. And his job is to try to

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Speaker 1: run out the clock and not say anything that gives

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Speaker 1: anybody reason to object to him. So he'll say say,

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Speaker 1: excuse me, assidents can't be overruled, or much more importantly,

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Speaker 1: that precedents cannot be revised, revisited and rendered meaningless even

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Speaker 1: though they're not formally overruled. And that's much more the

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Speaker 1: Supreme Court's usual way of doing business. So we know

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Speaker 1: that every Supreme Court nominee who's come before a committee

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Speaker 1: like this says that they're they're going to follow established precedent.

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Speaker 1: But then we saw Gorsuch his first term on the bench,

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Speaker 1: and he participated as the fifth vote in a decision

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Speaker 1: that overturned forty years of Supreme Court precedent as far

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Speaker 1: as union fees. So can we take their saying they're

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Speaker 1: going to follow precedent with more than a grain of salt, Well,

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Speaker 1: of course, not right. And when they say that they

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Speaker 1: will follow precedent, they don't really mean they will follow it.

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Speaker 1: They mean they will respect it as precedent. And you know,

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Speaker 1: Brown versus Board of Education overruled plus e versus ferguson

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Speaker 1: a precedent and properly so. So not every precedent has

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Speaker 1: to be adhered to. I can think of several that

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Speaker 1: I would like to see overruled that never should have

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Speaker 1: been decided in the first place. Um, they are still precedents.

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Speaker 1: They are entitled to some degree of respect um. And

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Speaker 1: that's all the more that Kavanaugh means to indicate, which

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Speaker 1: is to indicate nothing. So he was both a politician

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Speaker 1: and a judge. Do you think his politician side is

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Speaker 1: showing more or his judicial side? Right, So he's clearly

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Speaker 1: spinning um. And now he's acting as his own client

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Speaker 1: and spinning to assure the Senate and really not the Senate,

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Speaker 1: but playing beyond them to the cameras to assure the

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Speaker 1: public that really there's nothing to see here but his

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Speaker 1: time as a politician, as a really as a political

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Speaker 1: operative in the White House for President George W. Bush.

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Speaker 1: There's a lot back there that's really troubling. Right. You

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Speaker 1: think back to the Bush administration's warrantless surveillance program, You

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Speaker 1: think of the torture regime, You think of all the

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Speaker 1: ways in which that administration sort of waged war on

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Speaker 1: the rule of law and the idea that law could

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Speaker 1: constrain the president. Um. And that's what's hiding behind all

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Speaker 1: of these kind of saccharin answers that he's giving. And

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Speaker 1: though that issue and those questions are probably in the

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Speaker 1: documents that the Democrats have not been able to get

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Speaker 1: WHI else with WHI else withhold them right, there's something

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Speaker 1: being hidden. We don't know what it is, but we

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Speaker 1: know that something is being hidden, and there's every reason

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Speaker 1: to suspect it's We saw a Senator Lahy today trying

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Speaker 1: to get at some of the issues that came up

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Speaker 1: in his last confirmation hearing, and he was searching for

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Speaker 1: some kind of email and it didn't seem to have it.

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Speaker 1: And do you think he'll be able to get that

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Speaker 1: and we'll hear more about that? Or is that a

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Speaker 1: dead end unless the public demands it. It's a dead

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Speaker 1: end because they don't need they don't need Lay's vote.

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Speaker 1: They don't even care about Lay's vote. The public demands it.

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Speaker 1: You say there there are protests. I've never seen protests

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Speaker 1: like this at a Supreme Court hearing. Because they stopped

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Speaker 1: the hearing several times yesterday and they stopped it again today.

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Speaker 1: Do those protests matter? Do they even get him off

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Speaker 1: his game? They don't seem to get him off this game.

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Speaker 1: I think he's well prepared for them. If he wasn't yesterday,

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Speaker 1: he certainly knew what was coming when he came in today.

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Speaker 1: So I don't think they have they have that kind

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Speaker 1: of act. The question is how do they play among

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Speaker 1: the public. Generally, and I'm afraid I think they tend

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Speaker 1: to make Kevina'll look sort of hectored and sympathetic. So

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Speaker 1: if you were on the committee and you were able

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Speaker 1: to ask a question, what question would you ask that

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Speaker 1: you think might actually reveal something? Right? There is no

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Speaker 1: question that well, there is no magic question. If I

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Speaker 1: if I could formulate one, I would have and the

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Speaker 1: Senate would have asked it. They have very smart people

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Speaker 1: working on these hearings. The problem is the format allows

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Speaker 1: for the witness to give anodyne answers and essentially filipbuster

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Speaker 1: and run out the clock. And so there is no

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Speaker 1: question that you can ask that will that will reveal

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Speaker 1: what Kavanaugh thinks. Um, if you go back to his writings,

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Speaker 1: it's quite clear what he thinks. He thinks the president

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Speaker 1: holds expansive power and that Congress is virtually incapable of

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Speaker 1: doing anything meaningful to limit the president or to require

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Speaker 1: the president to comply with the rule of law. And

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Speaker 1: what he mentioned he said that he considers the Nixon

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Speaker 1: case to be one of the greatest Supreme Court cases.

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Speaker 1: What did you make of that? So what he said

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Speaker 1: in that case is it's a great example of the

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Speaker 1: Court standing up to the president right of the judiciary

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Speaker 1: asserting itself and of judicial independence. He did not embrace

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Speaker 1: the substance of that opinion, not in any way. And

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Speaker 1: in fact, he has in comments quite clearly um challenged

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Speaker 1: and disagreed with the ruling in that case. So then

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Speaker 1: the best way to view his what he'll be like

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Speaker 1: on the Supreme Court is to look at his opinions absolutely.

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Speaker 1: And what do they tell you about Roe Vie Wade. Well,

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Speaker 1: they don't really tell us very much of anything about

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Speaker 1: roversus way um, other than that he's not sympathetic to

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Speaker 1: its fundamental holding. And so I think what that tells

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Speaker 1: us is, at the very least, he will find regulations

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Speaker 1: that states adopt as not imposing an undue burden on

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Speaker 1: a woman's right to choose, and therefore state laws like

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Speaker 1: the laws Texas enacted a few years ago. I'm sorry,

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Speaker 1: I have to stop here. Neil, thanks so much. That's

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Speaker 1: Neil Kincock. He's a professor at the Georgia State University

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Speaker 1: and College of Law. A contentious hearing for President Trump

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Speaker 1: Supreme Court nominee Brett Kavanaugh in its second day, Democratic

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Speaker 1: senators tried to pin Kavanaugh down on issues such as abortion,

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Speaker 1: gun rights, and presidential powers. Senator Patrick Leahy asked Kavanaugh

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Speaker 1: whether the president has an absolute right to pardon himself.

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Speaker 1: Here's his answer. The question of self pardons is something

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Speaker 1: I've never analyzed. It's a question that I have not

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Speaker 1: and about. It's a question therefore, that's hypothetical question that

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Speaker 1: I can't begin to answer in this context as a

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Speaker 1: sitting judge and as a nominee to the Supreme Joining

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Speaker 1: me is Justin Reid Walker, professor at the University of

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Speaker 1: Louisville Brandis School of Law. Justin, did you learn anything

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Speaker 1: new about Judge Kavanaugh from these questions this morning? You know,

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Speaker 1: I think what Judge Kavanaugh said it was out there already.

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Speaker 1: He's written three d opinions from the bench for the

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Speaker 1: past twelve years, and he's written multiple Law of the

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Speaker 1: articles and some of the most prestigious journals in the country.

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Speaker 1: So there are obviously some questions that he hasn't answered

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Speaker 1: before today and that he can't answer for ethical reasons.

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Speaker 1: But I think, you know, we don't have to guess

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Speaker 1: too hard about what kind of judge he'll be on

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Speaker 1: the Spring Court. He'll be the same kind of judge

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Speaker 1: he's been for the past twelve years, which puts him

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Speaker 1: where on the Supreme Court. If you're looking at the

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Speaker 1: Supreme Court on a spectrum from conservative to liberal, you know,

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Speaker 1: I think that Judge Kavanaugh has something in common with

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Speaker 1: everyone on the court. Uh. You know, he's replacing Justice Kennedy,

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Speaker 1: and Justice Kennedy has been in the majority of every

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Speaker 1: Supreme Court decision that has vindicated opinion by Judge Kavanaugh.

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Speaker 1: That's happened thirteen times, which is a pretty unparalleled record

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Speaker 1: of vindication for a lower court judge. So there's a

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Speaker 1: clear overlap there between you know, Judge Kavanaugh, Justice Kennedy,

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Speaker 1: but also between Judge Kavanaugh and you know, other majorities

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Speaker 1: of the Court. Some of those opinions have been unanimous.

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Speaker 1: The most recent opinion vindicating a Judge Kavanaugh's case was

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Speaker 1: written by Justice brier Uh in a criminal procedure case

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Speaker 1: with Justice Briar and Judge Kavan are ruled for the

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Speaker 1: criminal defendant. And we're talking to a law school professor,

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Speaker 1: Justin Reid Walker, So Justin what stood out to you

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Speaker 1: most in this day of questioning? You know, I guess

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Speaker 1: what stands out to me is that after a month

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Speaker 1: or two of other people speaking for and about Judge Kavanaugh,

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Speaker 1: he's able to speak for himself. And I think that's

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Speaker 1: great news for him, because the Judge Kavanaugh I worked

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Speaker 1: with every day for years as clerk, and who also

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Speaker 1: taught a class I took when I was in law school,

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Speaker 1: is the Judge Kavanaugh who is unfailingly thoughtful, who approaches

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Speaker 1: the law in a mainstream way, who's a real judge's judge.

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Speaker 1: And uh, you know, the more Americans hear from him

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Speaker 1: and learn about him, the more I think they're going

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Speaker 1: to like what they see. Well, since since you clerk

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Speaker 1: with him, do you watch him and feel that this

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Speaker 1: is the Judge Kavanaugh that you knew? Is he able

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Speaker 1: to express himself as he did personally? Or is too

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Speaker 1: much pressure? Oh? I don't think it's I don't think

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Speaker 1: it's too much. It's too much pressure, you know, it's

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Speaker 1: it's obviously difficult to express yourself over the shouting of

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Speaker 1: protesters who who are being arrested. But it seems like

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Speaker 1: to a there's been a return to some of the civility, uh,

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Speaker 1: both from the audience and from the questionnaires that we've

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Speaker 1: seen in past confirmation hearing and Judge Kavanall had had

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Speaker 1: an opportunity to explain a little bit about his background,

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Speaker 1: a little bit about his twenty five years of public service,

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Speaker 1: a bit about his wonderful family, and most importantly, a

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Speaker 1: bit about his approach to the law, which is really

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Speaker 1: an approach that begins with an understanding of something. He

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Speaker 1: told us in chambers that every case is a separation

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Speaker 1: of power's case. Every case requires the judge to remember

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Speaker 1: that the other Justin will have to stop you there.

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Speaker 1: We'll talk to you again in the future. That's Justin

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Speaker 1: Reid Walker, Professor at the University of Louisville Brandeis School

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Speaker 1: of Law. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brasso.

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Speaker 1: This is Bloomberg Ye