Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. It's day two
Speaker 1: of the confirmation hearings for Supreme Court nominee Brett Kavanaugh. Today,
Speaker 1: the senators began questioning Kavanaugh on issues including abortion, presidential powers,
Speaker 1: and gun rights. Democratic Senator Diane Feinstein asked Kavanaugh about
Speaker 1: his opinion arguing for striking down the DC assault weapons
Speaker 1: ban and saying it was unconstitutional to ban assault weapons
Speaker 1: because they're in common use. Here's his response. Yes, and
Speaker 1: I was referring to some semi some kinds of semi
Speaker 1: automatic rifles that are banned by d C are in
Speaker 1: wides uh, widely owned in the United States, and now
Speaker 1: seemed to be the task that the Supreme Court had
Speaker 1: set forth. Joining me is Neil Kincock, professor at Georgia
Speaker 1: State University College of Law. Neil, what struck you about
Speaker 1: Kavanaugh's answers this morning. Well, he's being very careful, so
Speaker 1: the process proceeds with senators coming at him with sharp
Speaker 1: implements and him trying to apply anesthesia. And I'm afraid
Speaker 1: the result for for those of us watching feels like
Speaker 1: we've been lobotomized. Well, you know, Supreme Court nominee seem
Speaker 1: to be more and more adept at evading answers. So
Speaker 1: Kavanaugh has said he doesn't want to comment on things
Speaker 1: that were litigated before, like presidential subpoenas. He doesn't want
Speaker 1: to answer hypotheticals on presidential pardon power or something that's
Speaker 1: going to come up. He doesn't even want to comment
Speaker 1: on past Supreme Court rulings like row View Weight, except
Speaker 1: to say it's settled precedent. So what is the point
Speaker 1: of these hearings. Well, it's a kind of pookie, right.
Speaker 1: So the hope is that among senators is that they
Speaker 1: will catch him and trip him up and he'll say
Speaker 1: something substantive um. And his job is to try to
Speaker 1: run out the clock and not say anything that gives
Speaker 1: anybody reason to object to him. So he'll say say,
Speaker 1: excuse me, assidents can't be overruled, or much more importantly,
Speaker 1: that precedents cannot be revised, revisited and rendered meaningless even
Speaker 1: though they're not formally overruled. And that's much more the
Speaker 1: Supreme Court's usual way of doing business. So we know
Speaker 1: that every Supreme Court nominee who's come before a committee
Speaker 1: like this says that they're they're going to follow established precedent.
Speaker 1: But then we saw Gorsuch his first term on the bench,
Speaker 1: and he participated as the fifth vote in a decision
Speaker 1: that overturned forty years of Supreme Court precedent as far
Speaker 1: as union fees. So can we take their saying they're
Speaker 1: going to follow precedent with more than a grain of salt, Well,
Speaker 1: of course, not right. And when they say that they
Speaker 1: will follow precedent, they don't really mean they will follow it.
Speaker 1: They mean they will respect it as precedent. And you know,
Speaker 1: Brown versus Board of Education overruled plus e versus ferguson
Speaker 1: a precedent and properly so. So not every precedent has
Speaker 1: to be adhered to. I can think of several that
Speaker 1: I would like to see overruled that never should have
Speaker 1: been decided in the first place. Um, they are still precedents.
Speaker 1: They are entitled to some degree of respect um. And
Speaker 1: that's all the more that Kavanaugh means to indicate, which
Speaker 1: is to indicate nothing. So he was both a politician
Speaker 1: and a judge. Do you think his politician side is
Speaker 1: showing more or his judicial side? Right, So he's clearly
Speaker 1: spinning um. And now he's acting as his own client
Speaker 1: and spinning to assure the Senate and really not the Senate,
Speaker 1: but playing beyond them to the cameras to assure the
Speaker 1: public that really there's nothing to see here but his
Speaker 1: time as a politician, as a really as a political
Speaker 1: operative in the White House for President George W. Bush.
Speaker 1: There's a lot back there that's really troubling. Right. You
Speaker 1: think back to the Bush administration's warrantless surveillance program, You
Speaker 1: think of the torture regime, You think of all the
Speaker 1: ways in which that administration sort of waged war on
Speaker 1: the rule of law and the idea that law could
Speaker 1: constrain the president. Um. And that's what's hiding behind all
Speaker 1: of these kind of saccharin answers that he's giving. And
Speaker 1: though that issue and those questions are probably in the
Speaker 1: documents that the Democrats have not been able to get
Speaker 1: WHI else with WHI else withhold them right, there's something
Speaker 1: being hidden. We don't know what it is, but we
Speaker 1: know that something is being hidden, and there's every reason
Speaker 1: to suspect it's We saw a Senator Lahy today trying
Speaker 1: to get at some of the issues that came up
Speaker 1: in his last confirmation hearing, and he was searching for
Speaker 1: some kind of email and it didn't seem to have it.
Speaker 1: And do you think he'll be able to get that
Speaker 1: and we'll hear more about that? Or is that a
Speaker 1: dead end unless the public demands it. It's a dead
Speaker 1: end because they don't need they don't need Lay's vote.
Speaker 1: They don't even care about Lay's vote. The public demands it.
Speaker 1: You say there there are protests. I've never seen protests
Speaker 1: like this at a Supreme Court hearing. Because they stopped
Speaker 1: the hearing several times yesterday and they stopped it again today.
Speaker 1: Do those protests matter? Do they even get him off
Speaker 1: his game? They don't seem to get him off this game.
Speaker 1: I think he's well prepared for them. If he wasn't yesterday,
Speaker 1: he certainly knew what was coming when he came in today.
Speaker 1: So I don't think they have they have that kind
Speaker 1: of act. The question is how do they play among
Speaker 1: the public. Generally, and I'm afraid I think they tend
Speaker 1: to make Kevina'll look sort of hectored and sympathetic. So
Speaker 1: if you were on the committee and you were able
Speaker 1: to ask a question, what question would you ask that
Speaker 1: you think might actually reveal something? Right? There is no
Speaker 1: question that well, there is no magic question. If I
Speaker 1: if I could formulate one, I would have and the
Speaker 1: Senate would have asked it. They have very smart people
Speaker 1: working on these hearings. The problem is the format allows
Speaker 1: for the witness to give anodyne answers and essentially filipbuster
Speaker 1: and run out the clock. And so there is no
Speaker 1: question that you can ask that will that will reveal
Speaker 1: what Kavanaugh thinks. Um, if you go back to his writings,
Speaker 1: it's quite clear what he thinks. He thinks the president
Speaker 1: holds expansive power and that Congress is virtually incapable of
Speaker 1: doing anything meaningful to limit the president or to require
Speaker 1: the president to comply with the rule of law. And
Speaker 1: what he mentioned he said that he considers the Nixon
Speaker 1: case to be one of the greatest Supreme Court cases.
Speaker 1: What did you make of that? So what he said
Speaker 1: in that case is it's a great example of the
Speaker 1: Court standing up to the president right of the judiciary
Speaker 1: asserting itself and of judicial independence. He did not embrace
Speaker 1: the substance of that opinion, not in any way. And
Speaker 1: in fact, he has in comments quite clearly um challenged
Speaker 1: and disagreed with the ruling in that case. So then
Speaker 1: the best way to view his what he'll be like
Speaker 1: on the Supreme Court is to look at his opinions absolutely.
Speaker 1: And what do they tell you about Roe Vie Wade. Well,
Speaker 1: they don't really tell us very much of anything about
Speaker 1: roversus way um, other than that he's not sympathetic to
Speaker 1: its fundamental holding. And so I think what that tells
Speaker 1: us is, at the very least, he will find regulations
Speaker 1: that states adopt as not imposing an undue burden on
Speaker 1: a woman's right to choose, and therefore state laws like
Speaker 1: the laws Texas enacted a few years ago. I'm sorry,
Speaker 1: I have to stop here. Neil, thanks so much. That's
Speaker 1: Neil Kincock. He's a professor at the Georgia State University
Speaker 1: and College of Law. A contentious hearing for President Trump
Speaker 1: Supreme Court nominee Brett Kavanaugh in its second day, Democratic
Speaker 1: senators tried to pin Kavanaugh down on issues such as abortion,
Speaker 1: gun rights, and presidential powers. Senator Patrick Leahy asked Kavanaugh
Speaker 1: whether the president has an absolute right to pardon himself.
Speaker 1: Here's his answer. The question of self pardons is something
Speaker 1: I've never analyzed. It's a question that I have not
Speaker 1: and about. It's a question therefore, that's hypothetical question that
Speaker 1: I can't begin to answer in this context as a
Speaker 1: sitting judge and as a nominee to the Supreme Joining
Speaker 1: me is Justin Reid Walker, professor at the University of
Speaker 1: Louisville Brandis School of Law. Justin, did you learn anything
Speaker 1: new about Judge Kavanaugh from these questions this morning? You know,
Speaker 1: I think what Judge Kavanaugh said it was out there already.
Speaker 1: He's written three d opinions from the bench for the
Speaker 1: past twelve years, and he's written multiple Law of the
Speaker 1: articles and some of the most prestigious journals in the country.
Speaker 1: So there are obviously some questions that he hasn't answered
Speaker 1: before today and that he can't answer for ethical reasons.
Speaker 1: But I think, you know, we don't have to guess
Speaker 1: too hard about what kind of judge he'll be on
Speaker 1: the Spring Court. He'll be the same kind of judge
Speaker 1: he's been for the past twelve years, which puts him
Speaker 1: where on the Supreme Court. If you're looking at the
Speaker 1: Supreme Court on a spectrum from conservative to liberal, you know,
Speaker 1: I think that Judge Kavanaugh has something in common with
Speaker 1: everyone on the court. Uh. You know, he's replacing Justice Kennedy,
Speaker 1: and Justice Kennedy has been in the majority of every
Speaker 1: Supreme Court decision that has vindicated opinion by Judge Kavanaugh.
Speaker 1: That's happened thirteen times, which is a pretty unparalleled record
Speaker 1: of vindication for a lower court judge. So there's a
Speaker 1: clear overlap there between you know, Judge Kavanaugh, Justice Kennedy,
Speaker 1: but also between Judge Kavanaugh and you know, other majorities
Speaker 1: of the Court. Some of those opinions have been unanimous.
Speaker 1: The most recent opinion vindicating a Judge Kavanaugh's case was
Speaker 1: written by Justice brier Uh in a criminal procedure case
Speaker 1: with Justice Briar and Judge Kavan are ruled for the
Speaker 1: criminal defendant. And we're talking to a law school professor,
Speaker 1: Justin Reid Walker, So Justin what stood out to you
Speaker 1: most in this day of questioning? You know, I guess
Speaker 1: what stands out to me is that after a month
Speaker 1: or two of other people speaking for and about Judge Kavanaugh,
Speaker 1: he's able to speak for himself. And I think that's
Speaker 1: great news for him, because the Judge Kavanaugh I worked
Speaker 1: with every day for years as clerk, and who also
Speaker 1: taught a class I took when I was in law school,
Speaker 1: is the Judge Kavanaugh who is unfailingly thoughtful, who approaches
Speaker 1: the law in a mainstream way, who's a real judge's judge.
Speaker 1: And uh, you know, the more Americans hear from him
Speaker 1: and learn about him, the more I think they're going
Speaker 1: to like what they see. Well, since since you clerk
Speaker 1: with him, do you watch him and feel that this
Speaker 1: is the Judge Kavanaugh that you knew? Is he able
Speaker 1: to express himself as he did personally? Or is too
Speaker 1: much pressure? Oh? I don't think it's I don't think
Speaker 1: it's too much. It's too much pressure, you know, it's
Speaker 1: it's obviously difficult to express yourself over the shouting of
Speaker 1: protesters who who are being arrested. But it seems like
Speaker 1: to a there's been a return to some of the civility, uh,
Speaker 1: both from the audience and from the questionnaires that we've
Speaker 1: seen in past confirmation hearing and Judge Kavanall had had
Speaker 1: an opportunity to explain a little bit about his background,
Speaker 1: a little bit about his twenty five years of public service,
Speaker 1: a bit about his wonderful family, and most importantly, a
Speaker 1: bit about his approach to the law, which is really
Speaker 1: an approach that begins with an understanding of something. He
Speaker 1: told us in chambers that every case is a separation
Speaker 1: of power's case. Every case requires the judge to remember
Speaker 1: that the other Justin will have to stop you there.
Speaker 1: We'll talk to you again in the future. That's Justin
Speaker 1: Reid Walker, Professor at the University of Louisville Brandeis School
Speaker 1: of Law. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on bloomberg dot com slash podcast. I'm June Brasso.
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