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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. Oregon Democratic Senator

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Speaker 1: Jeff Merkley is one of the many Democrats promising a

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Speaker 1: tough confirmation fight for President Trump Supreme Court nominee Brett Kavanaugh.

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Speaker 1: With this nomination, the President is trying to deal himself

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Speaker 1: and get out of jail free card. He's chosen someone

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Speaker 1: who sees no limit to presidential power. He doesn't believe

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Speaker 1: that the president should be investigated when in office, which

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Speaker 1: is clearly completely outside of the mainstream of America. Joining

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Speaker 1: me is Miguel Estrada, a partner at Gibson Dunning Crutcher.

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Speaker 1: He's a former federal prosecutor and clerk to Justice Anthony Kennedy.

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Speaker 1: His nomination to the d C. Circuit Court by President

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Speaker 1: George W. Bush was blocked by a filibuster by Democrats.

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Speaker 1: Welcome to the show, Michael, Well, thank you for having me.

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Speaker 1: Will you explain how a judicial nominee is prepared for

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Speaker 1: confirmation hearings, Do they take him through days of mock questioning?

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Speaker 1: What happens? Well, that depends on the court and the nominee. UM.

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Speaker 1: You know, for dist records and courts of appeals, on

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Speaker 1: the Supreme Court, you have different processes, but generally you

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Speaker 1: expect the senators to ask a range of questions. For

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Speaker 1: Court of Appeals and for the Supreme Court, you would

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Speaker 1: expect the lawyers of the Department of Justice to have

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Speaker 1: some sessions with the nominee during which the nominee will

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Speaker 1: be asked some sort of UH, a series of mock questions,

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Speaker 1: UM that are intended to replicate the types of questions

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Speaker 1: that he will he or she will be asked UH

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Speaker 1: during the actual hearings. UM sort of practice sessions. And

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Speaker 1: obviously we have all seen a number of confirmation hearings

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Speaker 1: in the recent past, UM, and I think we all

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Speaker 1: have a reasonably good idea of the types of questions

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Speaker 1: that senators of both parties are likely to ask so

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Speaker 1: of Supreme Court nominees. So Supreme Court nominees have been successful,

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Speaker 1: it seems in not answering the questions that senators pose.

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Speaker 1: Neil Gorcich, who obviously made it to the Supreme Court,

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Speaker 1: refused to say how he would rule on a range

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Speaker 1: of issues from abortion to gun rights. Is there any

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Speaker 1: way to put Kavanaugh in a position where he would

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Speaker 1: have to answer or face looking untrustworthy. Perhaps, Well, I

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Speaker 1: think that there is sort of a larger issue here.

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Speaker 1: You're asking people to become judges on questions that will

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Speaker 1: come in front of courts, and you can't really anticipate

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Speaker 1: the full range of questions that will come in front

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Speaker 1: of the court. You do not like people to go

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Speaker 1: on courts, having already seemed to have promised a particular

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Speaker 1: outcome to senators during a hearing, and Uh, nominees of

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Speaker 1: both parties have been very careful to answer very little

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Speaker 1: specifics for that reason. Um, that doesn't really go as

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Speaker 1: far back as just as Gore search. Um. If you

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Speaker 1: go back to three with Justice Ruth Bader Ginsburg, Um,

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Speaker 1: she was very clear at the outset that she could

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Speaker 1: not give any hint or any clue as to how

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Speaker 1: she might answer questions with respect to issues that would

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Speaker 1: come in front of her as a justice. Um. So

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Speaker 1: this is something that has been going on for decades

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Speaker 1: now with respect to people who go on the Supreme Court,

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Speaker 1: especially because those people are likely to hear pretty much

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Speaker 1: any issue that comes in front of our courts. Um,

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Speaker 1: and you don't want people later claiming that as a

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Speaker 1: result of an exchange that they now justice had with

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Speaker 1: a senator, they cannot sit on the case. And so, yes,

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Speaker 1: there is a natural inclination for people to know a

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Speaker 1: lot about how judges will rule. Um. But the more

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Speaker 1: you ask uh and the more you try to get

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Speaker 1: into the specifics, the more you disable justices later to

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Speaker 1: do the job that they're being confirmed to do. So

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Speaker 1: in this case, we have of a Supreme Court nominee

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Speaker 1: who was vetted by the Federalist Society, which is a

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Speaker 1: very conservative group, and I assume a lot of that

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Speaker 1: was based on his decisions, the three plus decisions that

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Speaker 1: he's written. So is that what senator should really take

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Speaker 1: as the way the justice is going to rule in

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Speaker 1: the future. Look at what how he's ruled in the past. Well,

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Speaker 1: I mean you have to understand as well with him

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Speaker 1: with Justice Court search Um, with Justice Ruth Bader Ginsburgh,

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Speaker 1: who had also been a judge on the DC Circuit

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Speaker 1: Court of Appeals, like Judge Cavanaugh, Um, there's a little

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Speaker 1: bit of a difference between how judges rule out a

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Speaker 1: lower court judge when they are bound by Supreme Court

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Speaker 1: authority him, how they might rule in the Supreme Court

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Speaker 1: when they essentially are not. UM. But I think you

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Speaker 1: can get a lot out of the lower court rulings,

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Speaker 1: how they how they approach legal problems, questions of methodology,

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Speaker 1: how they think. UM. And obviously, somebody who has a

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Speaker 1: reach a rich track record of opinion writing gives a

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Speaker 1: lot of material to senators of both parties to learn

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Speaker 1: how they think and how they come to solving legal problems.

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Speaker 1: So it's not so much that they that those cases

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Speaker 1: tell senators exactly how they judge will rule in future cases,

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Speaker 1: because in some of those cases the judge may have

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Speaker 1: been bound by Supreme Court authority. UM. But it does, uh,

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Speaker 1: you know, that body of work does tell uh, you know,

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Speaker 1: the senators how they're know many things and how it

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Speaker 1: so how he solves legal problems. So is in your opinion,

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Speaker 1: is Judge Kavanaugh a reliable conservative vote? Well, I think

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Speaker 1: he is a conservative vote. Um. But this is a

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Speaker 1: question of course, UM, that has a different meaning to

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Speaker 1: two members of different parties. UM. I am a member

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Speaker 1: of the Republican Party. I have I think that you know,

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Speaker 1: the judge is a very good pick for a Republican president.

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Speaker 1: UM is brilliant and distinguished and hard working. UM has

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Speaker 1: a great work ethic, and I think he will be

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Speaker 1: a great justice on the Supreme Court. UM. That is

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Speaker 1: not to say, UM, that he will be the favorite

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Speaker 1: pick of a member of the Democratic Party, UM, or

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Speaker 1: that he will be an extreme right uh pick. UM.

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Speaker 1: You will have noticed, no doubt that in the eve

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Speaker 1: of his nomination by the President, there were members of

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Speaker 1: right wing groups who were urging the president not to

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Speaker 1: nominate Judge Kavanaugh on the theory that he was not

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Speaker 1: a reliable conservative. So Judge Kavanough is in the odd

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Speaker 1: situation of having had people on the right UM urging

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Speaker 1: the president not to nominate him on the theory that

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Speaker 1: he was not sufficiently conservative, and now just a few

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Speaker 1: days later, having you know, members of the Democratic Party

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Speaker 1: charging that the President has essentially uh named somebody who's

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Speaker 1: too conservative. UM. In fact, he is you know, a

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Speaker 1: uh centrist conservative jurist who is a very distinguished lawyer.

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Speaker 1: But is he conservative. Of course is conservative. He's a

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Speaker 1: nominee of a Republican president. For a vacancy in the

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Speaker 1: Supreme Court. It's only about a minute here. From a

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Speaker 1: personal note, can you explain what it's like to face

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Speaker 1: that hostile questioning in public? Is it as painful as

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Speaker 1: it looks or do you become a new to it? Well,

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Speaker 1: I don't know. It's been a long time since I

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Speaker 1: did that, UM, and I consider that ancient history as

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Speaker 1: far as my own experience is concerned. UM. I would

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Speaker 1: think it's worth for members of the candidate's family. UM.

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Speaker 1: You know, the nominee is there to answer questions, and

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Speaker 1: it is true that there are some members of the

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Speaker 1: Senate who are not always on their best behavior and

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Speaker 1: can be unpleasant. UM. That I think you know reflects

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Speaker 1: more poorly on them than on the nominee. UM. But intimately,

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Speaker 1: I think you know, the American people will make a

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Speaker 1: judgment as to whether, you know the quality of the

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Speaker 1: responses and of the truck record of their nominee is

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Speaker 1: one deserving the confirmation. Thank you so much, Miguel. We

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Speaker 1: run out of time. I wish we could talk longer.

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Speaker 1: That's Miguel Astratogy's a partner at Gibson Done. President Trump

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Speaker 1: announced his pick of a Supreme Court Justice Brett Kavanaugh

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Speaker 1: last night. For the last twelve years, he has served

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Speaker 1: as a judge on the d C. Circuit Court of

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Speaker 1: Appeals with great distinction, authoring over three opinions which have

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Speaker 1: been widely admired for their skill, insight, and rigorous adherents

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Speaker 1: to the law. My guess is Harold Kent, dean of

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Speaker 1: the Chicago Kent College of Law and author of the

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Speaker 1: book Presidential Powers. Harold Trump chose a Washington insider with

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Speaker 1: an Ivy League pedigree, a paper trail of judicial opinions.

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Speaker 1: Was it a smart choice? I think it was a

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Speaker 1: smart choice for President Trump. Possibly one um warning sign

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Speaker 1: because he's clearly bright, he has friends on both sides

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Speaker 1: of the political aisle, and but he's also a true

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Speaker 1: conservative and will write the kind of opinions that the

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Speaker 1: Trump administration would want him to write. What warning sign

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Speaker 1: do you see? But if I were the Democrats, I

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Speaker 1: think I would pick not on roversus way. It's the

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Speaker 1: way the commentary shipping up right now. Um, I would

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Speaker 1: think that he's most vulnerable, but because of his prior

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Speaker 1: defense of presidents and his call to immunize them from

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Speaker 1: any kinds of investigations. While in office, and we could

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Speaker 1: the Democrats might be able to seize on that as

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Speaker 1: to suggest that we don't want a justice at this

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Speaker 1: time who has come on the record to the extent

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Speaker 1: that he has in terms of trying to immunize the

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Speaker 1: president to certain extent from any kind of legal process

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Speaker 1: while he's in office. Is that balanced out by the

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Speaker 1: fact that he worked with Ken Starr when he was

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Speaker 1: independent counsel on President Bill Clinton's impeachment. Well, what it

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Speaker 1: seems like is he is willing to defend Republican presidents,

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Speaker 1: perhaps more than Democratic presidents. But I think his writing

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Speaker 1: since that time again has cast out on his his

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Speaker 1: willingness to support a vigorous investigation to the president um.

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Speaker 1: And I have some sympathy partial sympathy for his his opinion.

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Speaker 1: But nonetheless I think that that is a vulnerability that

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Speaker 1: the Democrats could seize upon to suggest that this is

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Speaker 1: not the right time to have a justice like that

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Speaker 1: in the office. But again, in terms of his record

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Speaker 1: on the d C circuit um, he is a true conservative,

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Speaker 1: and particularly he's anti regulation, he's pro employers um, and

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Speaker 1: he's probably in favor of limiting some of the sort

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Speaker 1: of social social issues up, So I think he's a

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Speaker 1: good choice from that perspective for the Trump administration. Are

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Speaker 1: legal experts right into including that putting him on the

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Speaker 1: court will make this Supreme Court the most conservative and

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Speaker 1: ideologically divided court in modern history. I wouldn't say necessarily

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Speaker 1: so that necessarily the most, but certainly the appointment will

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Speaker 1: push the Court to the right. Um he's replacing Justice Kennedy,

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Speaker 1: and now the median will shift to Chief Justice Roberts,

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Speaker 1: who is again a very conservative justice, but he will

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Speaker 1: be more to the middle on some issues anyway, and

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Speaker 1: has demonstrated that he would be in comparison to Capital.

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Speaker 1: The other thing I think that pundits have not mentioned

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Speaker 1: is this will affect the choice of which cases the

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Speaker 1: Court may accept, because it just takes four votes too

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Speaker 1: for the Court to take a case except the case,

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Speaker 1: and given his interests in a deregulatory move, and given

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Speaker 1: his interests in a strong president, we should see a

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Speaker 1: different kind of shape of the of the cases that

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Speaker 1: are accepted by the Court for review. Harold, have we

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Speaker 1: passed the time with all the you know, the rigorous

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Speaker 1: vetting that's done of these nominees. Have we passed the

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Speaker 1: time when a justice might drift to the other side,

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Speaker 1: whether you know, for the conservative towards the liberal side

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Speaker 1: or a liberal towards the conservative side, or they do

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Speaker 1: they all stay in their lanes. Now that's a great question. Obviously,

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Speaker 1: people talk about the suitor effect because it was Justice

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Speaker 1: Suitors appointment Um that triggered this whole inquiry, because he

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Speaker 1: became more liberal with time, and that's I think the

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Speaker 1: factor that it's hard to predict. Yes, it's true that

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Speaker 1: we have a track record for Justice Um Kavanaugh, but

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Speaker 1: there are other factors that may affect him over time. Certainly,

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Speaker 1: not in the first year Um and Corsats, for instance,

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Speaker 1: was predictable Um. But maybe in three years and ten

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Speaker 1: years somebody like a Justice Cours or Justice Kavanaugh can

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Speaker 1: react to circumstances and moderated to a certain extent with time. Certainly,

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Speaker 1: as you as you put it nicely, we expect us

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Speaker 1: as as to stay in the the lanes more than the

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Speaker 1: US too, because we just know so much more about

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Speaker 1: them and they've been vetted so much more strongly. It

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Speaker 1: doesn't seem like many people are bringing up the fact

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Speaker 1: that Kevin was nomination to the d C Circuit by

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Speaker 1: President George W. Bush was held up for three years

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Speaker 1: by Democrats who argued that he was two PARTI is

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Speaker 1: in then and now he has this record of opinions

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Speaker 1: that he's written, but has has the Senate chained so

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Speaker 1: much that that won't make a difference. I don't think

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Speaker 1: they will make as much difference because of the passage

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Speaker 1: of time. And he's served on the court for about

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Speaker 1: twelve years um, and that means that at least you

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Speaker 1: know in terms of his tone of his opinions, in

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Speaker 1: terms of uh, we can we can judge them, and

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Speaker 1: the Democrats can assess that as well, because before he

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Speaker 1: was viewed more as someone who was involved in all

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Speaker 1: of the Republican high controversy cases from the Bush versus

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Speaker 1: Gore ballot counting to the Vince fosse or suicide to

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Speaker 1: the impeachment. And since that time, of course he's more viewed,

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Speaker 1: is more measured because he has served as a judge.

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Speaker 1: So I think that the fight now will focus more

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Speaker 1: on what's in the paper so far ro versus Wade. Um. Certainly,

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Speaker 1: it's it's hard to pin him down what his views

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Speaker 1: are on ro versus Wade. And secondly, as I suggest,

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Speaker 1: if the Democratic Um operative asked me, I might look

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Speaker 1: at to see what his to try to pry the

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Speaker 1: level of his views on immunizing a president from legal process.

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Speaker 1: All right, thanks so much, Harold. That was really insightful

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Speaker 1: and your book is right on the money right now.

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Speaker 1: Presidential Powers is the book. That's Harold Kent. He's Deen

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Speaker 1: at the Chicago Kent College of Law. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg

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Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg.

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Speaker 1: Then the Dacot