WEBVTT - Kavanaugh Faces Senate Protests in Day one of Hearings

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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. As Supreme Court

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<v Speaker 1>nominee Brett Kavanaugh prepares to answer questions from the Senate

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<v Speaker 1>Judiciary Committee, Democrats and the Senate are continuing their efforts

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<v Speaker 1>to derail the hearings, which they tried to put off

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<v Speaker 1>this morning. Speaking with ABC's This Week, Wisconsin Republican Senator

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<v Speaker 1>Ron Johnson dismissed democratic concerns. Democrats have more enough information

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<v Speaker 1>to understand that this is a highly qualified jurist that

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<v Speaker 1>should be the next Supreme Court justice. In an earlier time,

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<v Speaker 1>thirty years ago, he would have passed unanimously. It's unfortunate

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<v Speaker 1>that Ted Kennedy began this process of very divisive confirmation

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<v Speaker 1>battles for the Supreme Court joining us as justin excuse

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<v Speaker 1>me joining us as justin? Driver professor with the University

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<v Speaker 1>of Chicago Law School and author of the Schoolhouse Gate,

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<v Speaker 1>Public Education, the Supreme Court and the Battle for the

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<v Speaker 1>American mind. Justin let's start with the Democrats attempts to

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<v Speaker 1>put off the hearing because of they say, there's a

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<v Speaker 1>hundred thousand documents withheld on the doctrine of executive privilege,

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<v Speaker 1>and forty two thousand were released last night, which the

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<v Speaker 1>which only have the which only the committee has access to. Yes,

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<v Speaker 1>this is quite a remarkable scene that unfolded in the

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<v Speaker 1>United States Senate today where Democratic senators were saying that

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<v Speaker 1>we need to postpone this. Uh, and including a number

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<v Speaker 1>of protesters, were getting up. And I think that's attributable

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<v Speaker 1>to the sense that this is a momentous nomination to

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<v Speaker 1>the Supreme Court. And Uh. The Republicans counter, of course,

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<v Speaker 1>with respect to the documents, and say that this nominee

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<v Speaker 1>has released more doctor events then the last five nominees

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<v Speaker 1>to the Supreme Court combined. But that is indicative of

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<v Speaker 1>exactly how long a paper trail Judge Kavanaugh has behind him.

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<v Speaker 1>So he just listened to the senators making their opening statements.

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<v Speaker 1>Did you hear anything that struck you, anything unusual? Or

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<v Speaker 1>was it in the mold of what you expect the

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<v Speaker 1>Democrats to say and what you expect Republicans to say?

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<v Speaker 1>You know, I think that some of the most remarkable

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<v Speaker 1>utterances in the Senate chamber today came not from people

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<v Speaker 1>who were miked, but instead the protesters who were there.

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<v Speaker 1>There were a number of women who were in and

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<v Speaker 1>around the Senate dressed up in costumes from the Handmaiden's

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<v Speaker 1>tail and I was watching the hearings and I heard

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<v Speaker 1>a number of women get up and Protestant have to

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<v Speaker 1>be physically removed, and the you know, the main reason

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<v Speaker 1>for those protests, as far as I could discern, was

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<v Speaker 1>they believe that a Justice Kavanaugh would be the fifth

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<v Speaker 1>vote to overturn ROVERSUS Wade and women's reproductive rights. Looking

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<v Speaker 1>at his past opinions, and particularly there is an opinion

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<v Speaker 1>that's mentioned about a young girl seeking an abortion who

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<v Speaker 1>was in custody of immigration officials. What's your opinion of

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<v Speaker 1>whether he is at fifth vote? Uh? My sense is

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<v Speaker 1>that Justice Kavanaugh, if he's confirmed, would be the fifth

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<v Speaker 1>vote to roll back roversus Wade. UM. It's not to

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<v Speaker 1>say that that would happen all in one fell swoop,

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<v Speaker 1>but one could imagine uh in erosion. Over time, Judge

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<v Speaker 1>Kavanaugh has gone out of his way UM, including UH

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<v Speaker 1>in statements not on the bench to praise a dissent

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<v Speaker 1>in ro versus Wade, and he suggested that this brought

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<v Speaker 1>the Supreme Court into terrain that it did not belong.

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<v Speaker 1>That's a highly unusual statement. So I don't think that

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<v Speaker 1>people should be surprised at all if Judge Kavanaugh ends

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<v Speaker 1>up being the fifth vote on on getting rid of

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<v Speaker 1>ro versus Wade. Yeah. Justin he reportedly told Senator Susan Collins,

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<v Speaker 1>Republican from Maine, who has looked at by Democrats as

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<v Speaker 1>a possible vote against him, that he saw Roe v.

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<v Speaker 1>Wade as quote settled law. Does that tell you anything

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<v Speaker 1>about his opinions about Roe v. Wade or what he

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<v Speaker 1>might do in the future. It tells you nothing. What's soever,

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<v Speaker 1>It is settled law until it becomes unsettled law. And uh,

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<v Speaker 1>you know that's not a guarantee of anything going forward.

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<v Speaker 1>That is a uh statement about what currently exists, rather

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<v Speaker 1>than on what he would do. So, uh, you know,

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<v Speaker 1>people have been making these statements without subtle law. But obviously, uh,

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<v Speaker 1>Supreme Court justices are not, uh you know, duty bound

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<v Speaker 1>to here to precedent no matter what. And the Roberts

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<v Speaker 1>Court recently got rid of a major labor law in

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<v Speaker 1>the form of the Janus opinion dealing with union sees,

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<v Speaker 1>and so there's no guarantee that today's law will be

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<v Speaker 1>good tomorrow. What other legal areas do you see Kavanaugh

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<v Speaker 1>having an impact on the Court's rulings. Yeah, Well, it's

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<v Speaker 1>important to keep in mind who Judge Kavanaugh would be replacing,

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<v Speaker 1>and that of course is his former boss. It's got

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<v Speaker 1>this Anthony Kennedy, and to think about how their years

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<v Speaker 1>may depart. There are two that spring to mind. The

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<v Speaker 1>first deals with affirmative action, race conscious admissions practices. UH

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<v Speaker 1>Justice Kennedy was an improbable savior of affirmative action in

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<v Speaker 1>the UH Fisher case most recently, and looking at Judge

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<v Speaker 1>Kavanaugh's extracurricular writings, it seems to me that he is

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<v Speaker 1>a skeptic of affirmative action. And there are several cases

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<v Speaker 1>that are making their way through the lower courts right

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<v Speaker 1>now that our challenges to affirmtive action, and so that

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<v Speaker 1>UH could those days could be numbered. The second area

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<v Speaker 1>that I identified that Kavanaugh's vote could be controlling and

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<v Speaker 1>moved the Court in a conservative direction would be with

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<v Speaker 1>respect to religion in public schools. UH Justice Kennedy UM

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<v Speaker 1>authored an important opinion UH keeping religion out of public schools,

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<v Speaker 1>and UH Judge Kavanaugh has filed an amicus brief saying

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<v Speaker 1>that he thinks there should be greater ability for there

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<v Speaker 1>to be religion in public schools. So those are two

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<v Speaker 1>hot button issue us that could very well move in

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<v Speaker 1>a conservative direction if Judge Kavanaugh is confirmed. Justin he

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<v Speaker 1>has been going through herings and murder boards to try

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<v Speaker 1>to get him ready for these For these particular questions

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<v Speaker 1>by the Democratic senators, is there any way that they

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<v Speaker 1>can get an answer to questions that previous UH Supreme

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<v Speaker 1>Court nominees have refused to answer? So I the tradition

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<v Speaker 1>is that not very much of consequence happens during UH

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<v Speaker 1>these events. There are some occasional moments of surprise, and

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<v Speaker 1>they need not come incidentally UH from hostile questioners. The

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<v Speaker 1>Judge Bourke was nominated to the Supreme Court in and

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<v Speaker 1>one of his UH less good moments was when he

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<v Speaker 1>was asked by a friendly senator, why do you want

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<v Speaker 1>to be on the Supreme Court and his response was, well,

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<v Speaker 1>I think it would be an intellect tool feast UH,

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<v Speaker 1>and this was regarded understandably as being out of touch

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<v Speaker 1>with the American public and ordinary people on the way

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<v Speaker 1>that law as sects their lives. So h, thank you

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<v Speaker 1>so much, Justin. We've run out of time. Appreciate your

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<v Speaker 1>implications there. Justin Driver, professor at the University of Chicago

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<v Speaker 1>Law School. Democrats have complained about hidden documents and Brett

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<v Speaker 1>Kavanaugh Supreme Court confirmation hearings, but the White House and

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<v Speaker 1>Republican lawmakers remained confident that Kavanaugh will be approved by

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<v Speaker 1>the Senate. Speaking with Fox News Sunday, Senator Lindsey Graham

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<v Speaker 1>said the Appeals Court judge will likely even gain some

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<v Speaker 1>Democratic support if he does well at the hearing. He

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<v Speaker 1>will get My belief is fifty five or higher if

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<v Speaker 1>he does well, and I'm sure he will do will

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<v Speaker 1>joining us as Greg Store, Bloomberg News Supreme Court reporter, Well, Greg,

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<v Speaker 1>if the Democrats do what they did this morning, it

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<v Speaker 1>seems likely that this will go through rather quickly. It does.

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<v Speaker 1>Chuck Grasslely, the committee chairman, seem as if he's going

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<v Speaker 1>to hold them to a tight timeline. Well, he's he's

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<v Speaker 1>uh giving Democrats a little bit of latitude to complain

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<v Speaker 1>about the process. So for the first hour this morning. Uh.

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<v Speaker 1>Democrats repeatedly interrupted the chairman UH as he was trying

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<v Speaker 1>to proceed with the hearing to complain about not receiving

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<v Speaker 1>all those documents. So UH, Senator grassly said, I'm basically said,

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<v Speaker 1>I'm gonna hear you out, but then we're gonna move on.

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<v Speaker 1>Now they have moved on to the opening statements, and

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<v Speaker 1>and the hearings moving more quickly. Yes, he said, he said,

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<v Speaker 1>I believe he said something the effect that's easier for

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<v Speaker 1>me to just listen to you than to than to

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<v Speaker 1>stop you from from talking. So just talk. And then

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<v Speaker 1>he ruled the way we knew he would rule in

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<v Speaker 1>the beginning. So, now, did you have you heard anything

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<v Speaker 1>in the opening statements that surprised you in any way? Now,

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<v Speaker 1>so much of this is predictable, predictable, and maybe all

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<v Speaker 1>of it is predictable. Uh. Democrats, in addition to the documents,

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<v Speaker 1>are complaining substantively about things like they're are worried that

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<v Speaker 1>that Roe v. Wade will be overturned. They're talking about

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<v Speaker 1>the Muller investigation. Uh, in the prospect that a Justice

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<v Speaker 1>Kavanaugh would help shield President Trump. They're talking about his

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<v Speaker 1>record on on regulatory issues. Siding with business interests. These

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<v Speaker 1>are all areas that they they foreshadowed would would be

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<v Speaker 1>of interest to them. Now we know that they're going

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<v Speaker 1>to ask about Roe v. Wade. That's the you know,

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<v Speaker 1>the main area where it seems that they're going to focus.

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<v Speaker 1>What other areas might they be focusing on? Well? Uh,

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<v Speaker 1>Senator white House just finished his opening statement, and he

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<v Speaker 1>spent a lot of time talking about not just a

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<v Speaker 1>Brett Kavanaugh, but the Roberts Court and its record UH

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<v Speaker 1>inciding with corporate interests. He talked about the Citizens United

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<v Speaker 1>campaign finance decision. UH, he talked about UH allowing companies

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<v Speaker 1>to enforce arbitration agreements. So this will be not just

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<v Speaker 1>a discussion of Judge Kavanaugh's record and what he would

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<v Speaker 1>bring to the court, as a discussion of where the

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<v Speaker 1>court already is. So greg when you saw Kavanaughs the

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<v Speaker 1>preview of his statement, his opening statement, did it remind

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<v Speaker 1>you of another Supreme Court justice? Yeah? It was certainly

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<v Speaker 1>remarkable that he used the umpire metaphor that now Chief

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<v Speaker 1>Justice John Roberts famously used in his confirmation hearing. UH.

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<v Speaker 1>That that has drawn a lot of criticism from people

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<v Speaker 1>who don't agree with him in a lot of a

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<v Speaker 1>lot of subjects. Um, you know, because the argument goes uh,

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<v Speaker 1>you know, sometimes it's it's not a clear cut case

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<v Speaker 1>of being a ball and strike or a ball or strike.

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<v Speaker 1>Sometimes you have to use your judgment. Uh. And and

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<v Speaker 1>Democrats are questioning the judgment of the people that Republican

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<v Speaker 1>presidents are putting on the court. Is there any indication

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<v Speaker 1>that any of the Republican votes are wavering at all? No,

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<v Speaker 1>none whatsoever, especially that in the committee. The Republicans on

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<v Speaker 1>the Committee are very solid. They see Judge Kavanaugh as

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<v Speaker 1>both being highly qualified in somebody who's committed to uh,

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<v Speaker 1>looking at the law as it's written, not as he

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<v Speaker 1>would want it to be. The Republicans we've been watching

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<v Speaker 1>throughout this process are folks like Senator Susan Collins, who

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<v Speaker 1>is in favor of abortion rights. But she has said

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<v Speaker 1>that in her private conversation with with Judge Kavanaugh that

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<v Speaker 1>he told her he views Rovie Wade as settled precedent,

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<v Speaker 1>a settled precedent of the Supreme Court. And she suggested

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<v Speaker 1>that for her that's good enough. Alright, Well, we know

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<v Speaker 1>that settled precedent means that it's settled until it's overturned

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<v Speaker 1>by the Supreme Court, as we know from Judge Gorstch

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<v Speaker 1>who joined the majority last year in overturning the settled

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<v Speaker 1>precedent in union cases. So let's talk about some of

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<v Speaker 1>what we may hear from the Democrats. Will will we

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<v Speaker 1>hear direct attacks on his opinions because he has a

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<v Speaker 1>lot of opinions that that show that he is of

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<v Speaker 1>a conservative bent. Yeah, there certainly will be. And and

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<v Speaker 1>really for Democrats, they have, even though they're complaining about

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<v Speaker 1>not receiving more material, they have a huge amount of

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<v Speaker 1>stuff in the have to decide what lines of attacks

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<v Speaker 1>are going to they're going to use. Um. Certainly, as

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<v Speaker 1>a judge on the Federal Appeals Court here in d C.

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<v Speaker 1>He has handled a huge number of regulatory cases, and

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<v Speaker 1>his record there is generally to limit what ages agencies

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<v Speaker 1>can do, limit their ability to regulate the environment and

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<v Speaker 1>regulate the internet. Uh, that will be a prime area

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<v Speaker 1>of attack. And certainly Roevie Wade will be something that

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<v Speaker 1>will come up over and over again because Justice Kennedy,

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<v Speaker 1>who has now left the Court was indeed the fifth

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<v Speaker 1>vote UM that was clearly on the side of abortion rights.

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<v Speaker 1>Right now, if if Judge Kavanaugh was confirmed. Roevie Wade

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<v Speaker 1>will be in some jeopardy and executive power is going

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<v Speaker 1>to come into play here. What is his opinion his

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<v Speaker 1>latest opinion on executive power, because he seemed to have

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<v Speaker 1>bounced around a little. Yeah, it will be very interesting

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<v Speaker 1>to hear him discuss that. So you have executive power

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<v Speaker 1>costal services coming up with you know, an expiration of contracts,

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<v Speaker 1>so there was going to be a renewal of contacts

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<v Speaker 1>coming up, and all you know is the president uh,

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<v Speaker 1>you know, able to basically squash the Mueller probe, for example,

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<v Speaker 1>squash the U. S Attorneys probe uh into into Michael Cohen. Uh.

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<v Speaker 1>In those questions of kind of presidential immunity from investigations,

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<v Speaker 1>those two subjects are uh somewhat closely linked. UM on

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<v Speaker 1>both of those, well, on the latter one. Brett Kavanaugh

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<v Speaker 1>has said a number of things over the years. His

0:14:30.880 --> 0:14:36.600
<v Speaker 1>position has clearly evolved over his twenty year career, UM,

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<v Speaker 1>and it will be interesting to hear whether he will

0:14:39.760 --> 0:14:42.160
<v Speaker 1>say anything that sheds light light on how he might

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<v Speaker 1>rule if an issue involving an investigation of President Trump

0:14:45.480 --> 0:14:47.920
<v Speaker 1>comes before the Supreme Court. I think that some of

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<v Speaker 1>the centers are even going to ask him to recuse himself.

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<v Speaker 1>Would he recuse himself in advance? And we know what

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<v Speaker 1>the answer to that will be. Thank you so much, Greg.

0:14:56.240 --> 0:14:59.600
<v Speaker 1>That's Greg Store, Bloomberg News Supreme Court reporter. Thanks for

0:14:59.680 --> 0:15:02.920
<v Speaker 1>listening to the Bloomberg Law Podcast. You can subscribe and

0:15:03.000 --> 0:15:06.240
<v Speaker 1>listen to the show on Apple podcast, SoundCloud, and on

0:15:06.320 --> 0:15:11.040
<v Speaker 1>Bloomberg dot com slash podcast. I'm June Grasso. This is

0:15:11.080 --> 0:15:11.720
<v Speaker 1>Bloomberg