WEBVTT - Brett Kavanaugh Prepares for Contentious Confirmation

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. Oregon Democratic Senator

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<v Speaker 1>Jeff Merkley is one of the many Democrats promising a

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<v Speaker 1>tough confirmation fight for President Trump Supreme Court nominee Brett Kavanaugh.

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<v Speaker 1>With this nomination, the President is trying to deal himself

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<v Speaker 1>and get out of jail free card. He's chosen someone

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<v Speaker 1>who sees no limit to presidential power. He doesn't believe

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<v Speaker 1>that the president should be investigated when in office, which

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<v Speaker 1>is clearly completely outside of the mainstream of America. Joining

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<v Speaker 1>me is Miguel Estrada, a partner at Gibson Dunning Crutcher.

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

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<v Speaker 1>His nomination to the d C. Circuit Court by President

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<v Speaker 1>George W. Bush was blocked by a filibuster by Democrats.

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<v Speaker 1>Welcome to the show, Michael, Well, thank you for having me.

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<v Speaker 1>Will you explain how a judicial nominee is prepared for

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<v Speaker 1>confirmation hearings, Do they take him through days of mock questioning?

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

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<v Speaker 1>You know, for dist records and courts of appeals, on

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<v Speaker 1>the Supreme Court, you have different processes, but generally you

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<v Speaker 1>expect the senators to ask a range of questions. For

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<v Speaker 1>Court of Appeals and for the Supreme Court, you would

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<v Speaker 1>expect the lawyers of the Department of Justice to have

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<v Speaker 1>some sessions with the nominee during which the nominee will

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<v Speaker 1>be asked some sort of UH, a series of mock questions,

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<v Speaker 1>UM that are intended to replicate the types of questions

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<v Speaker 1>that he will he or she will be asked UH

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<v Speaker 1>during the actual hearings. UM sort of practice sessions. And

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<v Speaker 1>obviously we have all seen a number of confirmation hearings

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<v Speaker 1>in the recent past, UM, and I think we all

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<v Speaker 1>have a reasonably good idea of the types of questions

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<v Speaker 1>that senators of both parties are likely to ask so

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<v Speaker 1>of Supreme Court nominees. So Supreme Court nominees have been successful,

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<v Speaker 1>it seems in not answering the questions that senators pose.

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<v Speaker 1>Neil Gorcich, who obviously made it to the Supreme Court,

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<v Speaker 1>refused to say how he would rule on a range

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<v Speaker 1>of issues from abortion to gun rights. Is there any

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<v Speaker 1>way to put Kavanaugh in a position where he would

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<v Speaker 1>have to answer or face looking untrustworthy. Perhaps, Well, I

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<v Speaker 1>think that there is sort of a larger issue here.

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<v Speaker 1>You're asking people to become judges on questions that will

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<v Speaker 1>come in front of courts, and you can't really anticipate

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<v Speaker 1>the full range of questions that will come in front

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<v Speaker 1>of the court. You do not like people to go

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<v Speaker 1>on courts, having already seemed to have promised a particular

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<v Speaker 1>outcome to senators during a hearing, and Uh, nominees of

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<v Speaker 1>both parties have been very careful to answer very little

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<v Speaker 1>specifics for that reason. Um, that doesn't really go as

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<v Speaker 1>far back as just as Gore search. Um. If you

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<v Speaker 1>go back to three with Justice Ruth Bader Ginsburg, Um,

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<v Speaker 1>she was very clear at the outset that she could

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<v Speaker 1>not give any hint or any clue as to how

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<v Speaker 1>she might answer questions with respect to issues that would

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<v Speaker 1>come in front of her as a justice. Um. So

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<v Speaker 1>this is something that has been going on for decades

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<v Speaker 1>now with respect to people who go on the Supreme Court,

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<v Speaker 1>especially because those people are likely to hear pretty much

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<v Speaker 1>any issue that comes in front of our courts. Um,

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<v Speaker 1>and you don't want people later claiming that as a

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<v Speaker 1>result of an exchange that they now justice had with

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<v Speaker 1>a senator, they cannot sit on the case. And so, yes,

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<v Speaker 1>there is a natural inclination for people to know a

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<v Speaker 1>lot about how judges will rule. Um. But the more

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<v Speaker 1>you ask uh and the more you try to get

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<v Speaker 1>into the specifics, the more you disable justices later to

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<v Speaker 1>do the job that they're being confirmed to do. So

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<v Speaker 1>in this case, we have of a Supreme Court nominee

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<v Speaker 1>who was vetted by the Federalist Society, which is a

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<v Speaker 1>very conservative group, and I assume a lot of that

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<v Speaker 1>was based on his decisions, the three plus decisions that

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<v Speaker 1>he's written. So is that what senator should really take

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<v Speaker 1>as the way the justice is going to rule in

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

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<v Speaker 1>I mean you have to understand as well with him

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<v Speaker 1>with Justice Court search Um, with Justice Ruth Bader Ginsburgh,

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<v Speaker 1>who had also been a judge on the DC Circuit

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<v Speaker 1>Court of Appeals, like Judge Cavanaugh, Um, there's a little

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<v Speaker 1>bit of a difference between how judges rule out a

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<v Speaker 1>lower court judge when they are bound by Supreme Court

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<v Speaker 1>authority him, how they might rule in the Supreme Court

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<v Speaker 1>when they essentially are not. UM. But I think you

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<v Speaker 1>can get a lot out of the lower court rulings,

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<v Speaker 1>how they how they approach legal problems, questions of methodology,

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<v Speaker 1>how they think. UM. And obviously, somebody who has a

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<v Speaker 1>reach a rich track record of opinion writing gives a

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<v Speaker 1>lot of material to senators of both parties to learn

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<v Speaker 1>how they think and how they come to solving legal problems.

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<v Speaker 1>So it's not so much that they that those cases

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<v Speaker 1>tell senators exactly how they judge will rule in future cases,

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<v Speaker 1>because in some of those cases the judge may have

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<v Speaker 1>been bound by Supreme Court authority. UM. But it does, uh,

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<v Speaker 1>you know, that body of work does tell uh, you know,

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<v Speaker 1>the senators how they're know many things and how it

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<v Speaker 1>so how he solves legal problems. So is in your opinion,

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<v Speaker 1>is Judge Kavanaugh a reliable conservative vote? Well, I think

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<v Speaker 1>he is a conservative vote. Um. But this is a

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<v Speaker 1>question of course, UM, that has a different meaning to

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<v Speaker 1>two members of different parties. UM. I am a member

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<v Speaker 1>of the Republican Party. I have I think that you know,

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<v Speaker 1>the judge is a very good pick for a Republican president.

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<v Speaker 1>UM is brilliant and distinguished and hard working. UM has

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<v Speaker 1>a great work ethic, and I think he will be

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<v Speaker 1>a great justice on the Supreme Court. UM. That is

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<v Speaker 1>not to say, UM, that he will be the favorite

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<v Speaker 1>pick of a member of the Democratic Party, UM, or

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<v Speaker 1>that he will be an extreme right uh pick. UM.

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<v Speaker 1>You will have noticed, no doubt that in the eve

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<v Speaker 1>of his nomination by the President, there were members of

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<v Speaker 1>right wing groups who were urging the president not to

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<v Speaker 1>nominate Judge Kavanaugh on the theory that he was not

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<v Speaker 1>a reliable conservative. So Judge Kavanough is in the odd

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<v Speaker 1>situation of having had people on the right UM urging

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<v Speaker 1>the president not to nominate him on the theory that

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<v Speaker 1>he was not sufficiently conservative, and now just a few

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<v Speaker 1>days later, having you know, members of the Democratic Party

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<v Speaker 1>charging that the President has essentially uh named somebody who's

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<v Speaker 1>too conservative. UM. In fact, he is you know, a

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<v Speaker 1>uh centrist conservative jurist who is a very distinguished lawyer.

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<v Speaker 1>But is he conservative. Of course is conservative. He's a

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<v Speaker 1>nominee of a Republican president. For a vacancy in the

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<v Speaker 1>Supreme Court. It's only about a minute here. From a

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<v Speaker 1>personal note, can you explain what it's like to face

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<v Speaker 1>that hostile questioning in public? Is it as painful as

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<v Speaker 1>it looks or do you become a new to it? Well,

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<v Speaker 1>I don't know. It's been a long time since I

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<v Speaker 1>did that, UM, and I consider that ancient history as

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<v Speaker 1>far as my own experience is concerned. UM. I would

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<v Speaker 1>think it's worth for members of the candidate's family. UM.

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<v Speaker 1>You know, the nominee is there to answer questions, and

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<v Speaker 1>it is true that there are some members of the

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<v Speaker 1>Senate who are not always on their best behavior and

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<v Speaker 1>can be unpleasant. UM. That I think you know reflects

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<v Speaker 1>more poorly on them than on the nominee. UM. But intimately,

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<v Speaker 1>I think you know, the American people will make a

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<v Speaker 1>judgment as to whether, you know the quality of the

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<v Speaker 1>responses and of the truck record of their nominee is

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<v Speaker 1>one deserving the confirmation. Thank you so much, Miguel. We

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<v Speaker 1>run out of time. I wish we could talk longer.

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<v Speaker 1>That's Miguel Astratogy's a partner at Gibson Done. President Trump

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<v Speaker 1>announced his pick of a Supreme Court Justice Brett Kavanaugh

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<v Speaker 1>last night. For the last twelve years, he has served

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<v Speaker 1>as a judge on the d C. Circuit Court of

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<v Speaker 1>Appeals with great distinction, authoring over three opinions which have

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<v Speaker 1>been widely admired for their skill, insight, and rigorous adherents

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<v Speaker 1>to the law. My guess is Harold Kent, dean of

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<v Speaker 1>the Chicago Kent College of Law and author of the

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<v Speaker 1>book Presidential Powers. Harold Trump chose a Washington insider with

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<v Speaker 1>an Ivy League pedigree, a paper trail of judicial opinions.

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<v Speaker 1>Was it a smart choice? I think it was a

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<v Speaker 1>smart choice for President Trump. Possibly one um warning sign

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<v Speaker 1>because he's clearly bright, he has friends on both sides

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<v Speaker 1>of the political aisle, and but he's also a true

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<v Speaker 1>conservative and will write the kind of opinions that the

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<v Speaker 1>Trump administration would want him to write. What warning sign

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<v Speaker 1>do you see? But if I were the Democrats, I

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<v Speaker 1>think I would pick not on roversus way. It's the

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<v Speaker 1>way the commentary shipping up right now. Um, I would

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<v Speaker 1>think that he's most vulnerable, but because of his prior

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<v Speaker 1>defense of presidents and his call to immunize them from

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<v Speaker 1>any kinds of investigations. While in office, and we could

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<v Speaker 1>the Democrats might be able to seize on that as

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<v Speaker 1>to suggest that we don't want a justice at this

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<v Speaker 1>time who has come on the record to the extent

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<v Speaker 1>that he has in terms of trying to immunize the

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<v Speaker 1>president to certain extent from any kind of legal process

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<v Speaker 1>while he's in office. Is that balanced out by the

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<v Speaker 1>fact that he worked with Ken Starr when he was

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

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<v Speaker 1>seems like is he is willing to defend Republican presidents,

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<v Speaker 1>perhaps more than Democratic presidents. But I think his writing

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<v Speaker 1>since that time again has cast out on his his

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<v Speaker 1>willingness to support a vigorous investigation to the president um.

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<v Speaker 1>And I have some sympathy partial sympathy for his his opinion.

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<v Speaker 1>But nonetheless I think that that is a vulnerability that

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<v Speaker 1>the Democrats could seize upon to suggest that this is

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<v Speaker 1>not the right time to have a justice like that

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<v Speaker 1>in the office. But again, in terms of his record

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<v Speaker 1>on the d C circuit um, he is a true conservative,

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<v Speaker 1>and particularly he's anti regulation, he's pro employers um, and

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<v Speaker 1>he's probably in favor of limiting some of the sort

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<v Speaker 1>of social social issues up, So I think he's a

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<v Speaker 1>good choice from that perspective for the Trump administration. Are

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<v Speaker 1>legal experts right into including that putting him on the

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<v Speaker 1>court will make this Supreme Court the most conservative and

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<v Speaker 1>ideologically divided court in modern history. I wouldn't say necessarily

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<v Speaker 1>so that necessarily the most, but certainly the appointment will

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

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<v Speaker 1>and now the median will shift to Chief Justice Roberts,

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<v Speaker 1>who is again a very conservative justice, but he will

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<v Speaker 1>be more to the middle on some issues anyway, and

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<v Speaker 1>has demonstrated that he would be in comparison to Capital.

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<v Speaker 1>The other thing I think that pundits have not mentioned

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<v Speaker 1>is this will affect the choice of which cases the

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<v Speaker 1>Court may accept, because it just takes four votes too

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<v Speaker 1>for the Court to take a case except the case,

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<v Speaker 1>and given his interests in a deregulatory move, and given

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<v Speaker 1>his interests in a strong president, we should see a

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<v Speaker 1>different kind of shape of the of the cases that

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<v Speaker 1>are accepted by the Court for review. Harold, have we

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<v Speaker 1>passed the time with all the you know, the rigorous

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<v Speaker 1>vetting that's done of these nominees. Have we passed the

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<v Speaker 1>time when a justice might drift to the other side,

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<v Speaker 1>whether you know, for the conservative towards the liberal side

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<v Speaker 1>or a liberal towards the conservative side, or they do

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

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<v Speaker 1>people talk about the suitor effect because it was Justice

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<v Speaker 1>Suitors appointment Um that triggered this whole inquiry, because he

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<v Speaker 1>became more liberal with time, and that's I think the

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<v Speaker 1>factor that it's hard to predict. Yes, it's true that

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<v Speaker 1>we have a track record for Justice Um Kavanaugh, but

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<v Speaker 1>there are other factors that may affect him over time. Certainly,

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<v Speaker 1>not in the first year Um and Corsats, for instance,

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<v Speaker 1>was predictable Um. But maybe in three years and ten

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<v Speaker 1>years somebody like a Justice Cours or Justice Kavanaugh can

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<v Speaker 1>react to circumstances and moderated to a certain extent with time. Certainly,

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<v Speaker 1>as you as you put it nicely, we expect us

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<v Speaker 1>as as to stay in the the lanes more than the

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<v Speaker 1>US too, because we just know so much more about

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<v Speaker 1>them and they've been vetted so much more strongly. It

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<v Speaker 1>doesn't seem like many people are bringing up the fact

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<v Speaker 1>that Kevin was nomination to the d C Circuit by

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<v Speaker 1>President George W. Bush was held up for three years

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<v Speaker 1>by Democrats who argued that he was two PARTI is

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<v Speaker 1>in then and now he has this record of opinions

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<v Speaker 1>that he's written, but has has the Senate chained so

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<v Speaker 1>much that that won't make a difference. I don't think

0:13:30.000 --> 0:13:32.920
<v Speaker 1>they will make as much difference because of the passage

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<v Speaker 1>of time. And he's served on the court for about

0:13:35.480 --> 0:13:39.000
<v Speaker 1>twelve years um, and that means that at least you

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<v Speaker 1>know in terms of his tone of his opinions, in

0:13:41.480 --> 0:13:45.760
<v Speaker 1>terms of uh, we can we can judge them, and

0:13:45.880 --> 0:13:48.200
<v Speaker 1>the Democrats can assess that as well, because before he

0:13:48.240 --> 0:13:51.920
<v Speaker 1>was viewed more as someone who was involved in all

0:13:51.960 --> 0:13:57.520
<v Speaker 1>of the Republican high controversy cases from the Bush versus

0:13:57.559 --> 0:14:01.400
<v Speaker 1>Gore ballot counting to the Vince fosse or suicide to

0:14:01.640 --> 0:14:05.080
<v Speaker 1>the impeachment. And since that time, of course he's more viewed,

0:14:05.160 --> 0:14:08.960
<v Speaker 1>is more measured because he has served as a judge.

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<v Speaker 1>So I think that the fight now will focus more

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

0:14:16.280 --> 0:14:18.360
<v Speaker 1>it's it's hard to pin him down what his views

0:14:18.400 --> 0:14:21.760
<v Speaker 1>are on ro versus Wade. And secondly, as I suggest,

0:14:21.840 --> 0:14:26.480
<v Speaker 1>if the Democratic Um operative asked me, I might look

0:14:26.480 --> 0:14:29.680
<v Speaker 1>at to see what his to try to pry the

0:14:29.760 --> 0:14:34.200
<v Speaker 1>level of his views on immunizing a president from legal process.

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<v Speaker 1>All right, thanks so much, Harold. That was really insightful

0:14:37.280 --> 0:14:39.960
<v Speaker 1>and your book is right on the money right now.

0:14:40.040 --> 0:14:42.640
<v Speaker 1>Presidential Powers is the book. That's Harold Kent. He's Deen

0:14:42.680 --> 0:14:45.760
<v Speaker 1>at the Chicago Kent College of Law. Thanks for listening

0:14:45.800 --> 0:14:49.040
<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

0:14:49.080 --> 0:14:52.680
<v Speaker 1>to the show on Apple Podcasts, SoundCloud, and on Bloomberg

0:14:52.720 --> 0:14:57.440
<v Speaker 1>dot com slash podcast. I'm June Brosso. This is Bloomberg.

0:15:00.040 --> 0:15:01.440
<v Speaker 1>Then the Dacot