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. As Supreme Court
Speaker 1: nominee Brett Kavanaugh prepares to answer questions from the Senate
Speaker 1: Judiciary Committee, Democrats and the Senate are continuing their efforts
Speaker 1: to derail the hearings, which they tried to put off
Speaker 1: this morning. Speaking with ABC's This Week, Wisconsin Republican Senator
Speaker 1: Ron Johnson dismissed democratic concerns. Democrats have more enough information
Speaker 1: to understand that this is a highly qualified jurist that
Speaker 1: should be the next Supreme Court justice. In an earlier time,
Speaker 1: thirty years ago, he would have passed unanimously. It's unfortunate
Speaker 1: that Ted Kennedy began this process of very divisive confirmation
Speaker 1: battles for the Supreme Court joining us as justin excuse
Speaker 1: me joining us as justin? Driver professor with the University
Speaker 1: of Chicago Law School and author of the Schoolhouse Gate,
Speaker 1: Public Education, the Supreme Court and the Battle for the
Speaker 1: American mind. Justin let's start with the Democrats attempts to
Speaker 1: put off the hearing because of they say, there's a
Speaker 1: hundred thousand documents withheld on the doctrine of executive privilege,
Speaker 1: and forty two thousand were released last night, which the
Speaker 1: which only have the which only the committee has access to. Yes,
Speaker 1: this is quite a remarkable scene that unfolded in the
Speaker 1: United States Senate today where Democratic senators were saying that
Speaker 1: we need to postpone this. Uh, and including a number
Speaker 1: of protesters, were getting up. And I think that's attributable
Speaker 1: to the sense that this is a momentous nomination to
Speaker 1: the Supreme Court. And Uh. The Republicans counter, of course,
Speaker 1: with respect to the documents, and say that this nominee
Speaker 1: has released more doctor events then the last five nominees
Speaker 1: to the Supreme Court combined. But that is indicative of
Speaker 1: exactly how long a paper trail Judge Kavanaugh has behind him.
Speaker 1: So he just listened to the senators making their opening statements.
Speaker 1: Did you hear anything that struck you, anything unusual? Or
Speaker 1: was it in the mold of what you expect the
Speaker 1: Democrats to say and what you expect Republicans to say?
Speaker 1: You know, I think that some of the most remarkable
Speaker 1: utterances in the Senate chamber today came not from people
Speaker 1: who were miked, but instead the protesters who were there.
Speaker 1: There were a number of women who were in and
Speaker 1: around the Senate dressed up in costumes from the Handmaiden's
Speaker 1: tail and I was watching the hearings and I heard
Speaker 1: a number of women get up and Protestant have to
Speaker 1: be physically removed, and the you know, the main reason
Speaker 1: for those protests, as far as I could discern, was
Speaker 1: they believe that a Justice Kavanaugh would be the fifth
Speaker 1: vote to overturn ROVERSUS Wade and women's reproductive rights. Looking
Speaker 1: at his past opinions, and particularly there is an opinion
Speaker 1: that's mentioned about a young girl seeking an abortion who
Speaker 1: was in custody of immigration officials. What's your opinion of
Speaker 1: whether he is at fifth vote? Uh? My sense is
Speaker 1: that Justice Kavanaugh, if he's confirmed, would be the fifth
Speaker 1: vote to roll back roversus Wade. UM. It's not to
Speaker 1: say that that would happen all in one fell swoop,
Speaker 1: but one could imagine uh in erosion. Over time, Judge
Speaker 1: Kavanaugh has gone out of his way UM, including UH
Speaker 1: in statements not on the bench to praise a dissent
Speaker 1: in ro versus Wade, and he suggested that this brought
Speaker 1: the Supreme Court into terrain that it did not belong.
Speaker 1: That's a highly unusual statement. So I don't think that
Speaker 1: people should be surprised at all if Judge Kavanaugh ends
Speaker 1: up being the fifth vote on on getting rid of
Speaker 1: ro versus Wade. Yeah. Justin he reportedly told Senator Susan Collins,
Speaker 1: Republican from Maine, who has looked at by Democrats as
Speaker 1: a possible vote against him, that he saw Roe v.
Speaker 1: Wade as quote settled law. Does that tell you anything
Speaker 1: about his opinions about Roe v. Wade or what he
Speaker 1: might do in the future. It tells you nothing. What's soever,
Speaker 1: It is settled law until it becomes unsettled law. And uh,
Speaker 1: you know that's not a guarantee of anything going forward.
Speaker 1: That is a uh statement about what currently exists, rather
Speaker 1: than on what he would do. So, uh, you know,
Speaker 1: people have been making these statements without subtle law. But obviously, uh,
Speaker 1: Supreme Court justices are not, uh you know, duty bound
Speaker 1: to here to precedent no matter what. And the Roberts
Speaker 1: Court recently got rid of a major labor law in
Speaker 1: the form of the Janus opinion dealing with union sees,
Speaker 1: and so there's no guarantee that today's law will be
Speaker 1: good tomorrow. What other legal areas do you see Kavanaugh
Speaker 1: having an impact on the Court's rulings. Yeah, Well, it's
Speaker 1: important to keep in mind who Judge Kavanaugh would be replacing,
Speaker 1: and that of course is his former boss. It's got
Speaker 1: this Anthony Kennedy, and to think about how their years
Speaker 1: may depart. There are two that spring to mind. The
Speaker 1: first deals with affirmative action, race conscious admissions practices. UH
Speaker 1: Justice Kennedy was an improbable savior of affirmative action in
Speaker 1: the UH Fisher case most recently, and looking at Judge
Speaker 1: Kavanaugh's extracurricular writings, it seems to me that he is
Speaker 1: a skeptic of affirmative action. And there are several cases
Speaker 1: that are making their way through the lower courts right
Speaker 1: now that our challenges to affirmtive action, and so that
Speaker 1: UH could those days could be numbered. The second area
Speaker 1: that I identified that Kavanaugh's vote could be controlling and
Speaker 1: moved the Court in a conservative direction would be with
Speaker 1: respect to religion in public schools. UH Justice Kennedy UM
Speaker 1: authored an important opinion UH keeping religion out of public schools,
Speaker 1: and UH Judge Kavanaugh has filed an amicus brief saying
Speaker 1: that he thinks there should be greater ability for there
Speaker 1: to be religion in public schools. So those are two
Speaker 1: hot button issue us that could very well move in
Speaker 1: a conservative direction if Judge Kavanaugh is confirmed. Justin he
Speaker 1: has been going through herings and murder boards to try
Speaker 1: to get him ready for these For these particular questions
Speaker 1: by the Democratic senators, is there any way that they
Speaker 1: can get an answer to questions that previous UH Supreme
Speaker 1: Court nominees have refused to answer? So I the tradition
Speaker 1: is that not very much of consequence happens during UH
Speaker 1: these events. There are some occasional moments of surprise, and
Speaker 1: they need not come incidentally UH from hostile questioners. The
Speaker 1: Judge Bourke was nominated to the Supreme Court in and
Speaker 1: one of his UH less good moments was when he
Speaker 1: was asked by a friendly senator, why do you want
Speaker 1: to be on the Supreme Court and his response was, well,
Speaker 1: I think it would be an intellect tool feast UH,
Speaker 1: and this was regarded understandably as being out of touch
Speaker 1: with the American public and ordinary people on the way
Speaker 1: that law as sects their lives. So h, thank you
Speaker 1: so much, Justin. We've run out of time. Appreciate your
Speaker 1: implications there. Justin Driver, professor at the University of Chicago
Speaker 1: Law School. Democrats have complained about hidden documents and Brett
Speaker 1: Kavanaugh Supreme Court confirmation hearings, but the White House and
Speaker 1: Republican lawmakers remained confident that Kavanaugh will be approved by
Speaker 1: the Senate. Speaking with Fox News Sunday, Senator Lindsey Graham
Speaker 1: said the Appeals Court judge will likely even gain some
Speaker 1: Democratic support if he does well at the hearing. He
Speaker 1: will get My belief is fifty five or higher if
Speaker 1: he does well, and I'm sure he will do will
Speaker 1: joining us as Greg Store, Bloomberg News Supreme Court reporter, Well, Greg,
Speaker 1: if the Democrats do what they did this morning, it
Speaker 1: seems likely that this will go through rather quickly. It does.
Speaker 1: Chuck Grasslely, the committee chairman, seem as if he's going
Speaker 1: to hold them to a tight timeline. Well, he's he's
Speaker 1: uh giving Democrats a little bit of latitude to complain
Speaker 1: about the process. So for the first hour this morning. Uh.
Speaker 1: Democrats repeatedly interrupted the chairman UH as he was trying
Speaker 1: to proceed with the hearing to complain about not receiving
Speaker 1: all those documents. So UH, Senator grassly said, I'm basically said,
Speaker 1: I'm gonna hear you out, but then we're gonna move on.
Speaker 1: Now they have moved on to the opening statements, and
Speaker 1: and the hearings moving more quickly. Yes, he said, he said,
Speaker 1: I believe he said something the effect that's easier for
Speaker 1: me to just listen to you than to than to
Speaker 1: stop you from from talking. So just talk. And then
Speaker 1: he ruled the way we knew he would rule in
Speaker 1: the beginning. So, now, did you have you heard anything
Speaker 1: in the opening statements that surprised you in any way? Now,
Speaker 1: so much of this is predictable, predictable, and maybe all
Speaker 1: of it is predictable. Uh. Democrats, in addition to the documents,
Speaker 1: are complaining substantively about things like they're are worried that
Speaker 1: that Roe v. Wade will be overturned. They're talking about
Speaker 1: the Muller investigation. Uh, in the prospect that a Justice
Speaker 1: Kavanaugh would help shield President Trump. They're talking about his
Speaker 1: record on on regulatory issues. Siding with business interests. These
Speaker 1: are all areas that they they foreshadowed would would be
Speaker 1: of interest to them. Now we know that they're going
Speaker 1: to ask about Roe v. Wade. That's the you know,
Speaker 1: the main area where it seems that they're going to focus.
Speaker 1: What other areas might they be focusing on? Well? Uh,
Speaker 1: Senator white House just finished his opening statement, and he
Speaker 1: spent a lot of time talking about not just a
Speaker 1: Brett Kavanaugh, but the Roberts Court and its record UH
Speaker 1: inciding with corporate interests. He talked about the Citizens United
Speaker 1: campaign finance decision. UH, he talked about UH allowing companies
Speaker 1: to enforce arbitration agreements. So this will be not just
Speaker 1: a discussion of Judge Kavanaugh's record and what he would
Speaker 1: bring to the court, as a discussion of where the
Speaker 1: court already is. So greg when you saw Kavanaughs the
Speaker 1: preview of his statement, his opening statement, did it remind
Speaker 1: you of another Supreme Court justice? Yeah? It was certainly
Speaker 1: remarkable that he used the umpire metaphor that now Chief
Speaker 1: Justice John Roberts famously used in his confirmation hearing. UH.
Speaker 1: That that has drawn a lot of criticism from people
Speaker 1: who don't agree with him in a lot of a
Speaker 1: lot of subjects. Um, you know, because the argument goes uh,
Speaker 1: you know, sometimes it's it's not a clear cut case
Speaker 1: of being a ball and strike or a ball or strike.
Speaker 1: Sometimes you have to use your judgment. Uh. And and
Speaker 1: Democrats are questioning the judgment of the people that Republican
Speaker 1: presidents are putting on the court. Is there any indication
Speaker 1: that any of the Republican votes are wavering at all? No,
Speaker 1: none whatsoever, especially that in the committee. The Republicans on
Speaker 1: the Committee are very solid. They see Judge Kavanaugh as
Speaker 1: both being highly qualified in somebody who's committed to uh,
Speaker 1: looking at the law as it's written, not as he
Speaker 1: would want it to be. The Republicans we've been watching
Speaker 1: throughout this process are folks like Senator Susan Collins, who
Speaker 1: is in favor of abortion rights. But she has said
Speaker 1: that in her private conversation with with Judge Kavanaugh that
Speaker 1: he told her he views Rovie Wade as settled precedent,
Speaker 1: a settled precedent of the Supreme Court. And she suggested
Speaker 1: that for her that's good enough. Alright, Well, we know
Speaker 1: that settled precedent means that it's settled until it's overturned
Speaker 1: by the Supreme Court, as we know from Judge Gorstch
Speaker 1: who joined the majority last year in overturning the settled
Speaker 1: precedent in union cases. So let's talk about some of
Speaker 1: what we may hear from the Democrats. Will will we
Speaker 1: hear direct attacks on his opinions because he has a
Speaker 1: lot of opinions that that show that he is of
Speaker 1: a conservative bent. Yeah, there certainly will be. And and
Speaker 1: really for Democrats, they have, even though they're complaining about
Speaker 1: not receiving more material, they have a huge amount of
Speaker 1: stuff in the have to decide what lines of attacks
Speaker 1: are going to they're going to use. Um. Certainly, as
Speaker 1: a judge on the Federal Appeals Court here in d C.
Speaker 1: He has handled a huge number of regulatory cases, and
Speaker 1: his record there is generally to limit what ages agencies
Speaker 1: can do, limit their ability to regulate the environment and
Speaker 1: regulate the internet. Uh, that will be a prime area
Speaker 1: of attack. And certainly Roevie Wade will be something that
Speaker 1: will come up over and over again because Justice Kennedy,
Speaker 1: who has now left the Court was indeed the fifth
Speaker 1: vote UM that was clearly on the side of abortion rights.
Speaker 1: Right now, if if Judge Kavanaugh was confirmed. Roevie Wade
Speaker 1: will be in some jeopardy and executive power is going
Speaker 1: to come into play here. What is his opinion his
Speaker 1: latest opinion on executive power, because he seemed to have
Speaker 1: bounced around a little. Yeah, it will be very interesting
Speaker 1: to hear him discuss that. So you have executive power
Speaker 1: costal services coming up with you know, an expiration of contracts,
Speaker 1: so there was going to be a renewal of contacts
Speaker 1: coming up, and all you know is the president uh,
Speaker 1: you know, able to basically squash the Mueller probe, for example,
Speaker 1: squash the U. S Attorneys probe uh into into Michael Cohen. Uh.
Speaker 1: In those questions of kind of presidential immunity from investigations,
Speaker 1: those two subjects are uh somewhat closely linked. UM on
Speaker 1: both of those, well, on the latter one. Brett Kavanaugh
Speaker 1: has said a number of things over the years. His
Speaker 1: position has clearly evolved over his twenty year career, UM,
Speaker 1: and it will be interesting to hear whether he will
Speaker 1: say anything that sheds light light on how he might
Speaker 1: rule if an issue involving an investigation of President Trump
Speaker 1: comes before the Supreme Court. I think that some of
Speaker 1: the centers are even going to ask him to recuse himself.
Speaker 1: Would he recuse himself in advance? And we know what
Speaker 1: the answer to that will be. Thank you so much, Greg.
Speaker 1: That's Greg Store, Bloomberg News Supreme Court reporter. Thanks for
Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and
Speaker 1: listen to the show on Apple podcast, SoundCloud, and on
Speaker 1: Bloomberg dot com slash podcast. I'm June Grasso. This is
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