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tv   2017-18 Supreme Court Term Review  CSPAN  July 10, 2018 8:46pm-10:12pm EDT

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soon. so that generates more media interest. well, let us see what he has to say. guess what, spoiler, it never comes out. >> then he selects a detractor to attack. this point, people start to come out and say, we think he is lying. >> i am not lying, other people are just talking about this, i just -- >> anything that pops up -- loser, crazy, hack. if you can find anybody to gaslight, that creates the dynamic. >> and then finally, he declares history. >> yes, everyone come in, i will have a major announcement. you can also look at my beautiful grand hotel if you want. and then he will say, yeah, barack obama is a citizen. i cleared it up, i am a winner, but hillary clinton started it. i finished it. announcer: watch it on sunday at
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9 p.m. eastern on c-span twos book tv. >> earlier today, a panel at the heritage foundation looked back supreme court's 2017-2018 term. they talked about the first year of justice neil gorsuch at the bench. this runs just under one hour and a half. for our in house guests, we would ask that you check that mobile devices have
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been silenced and turned off, and of course, those watching online are welcome to send questions and comments any time @imply emailing speaker our first guest service as a fellow,legal fe and he was at the department of justice. he has been executive vice president at the motion picture association of america as well as the general counsel of the u.s. commission on international religious freedom. 's journal in welcoming john malcolm. [applause] much, sean,you very and welcome to heritage, to our annual scholars and describes review of the recently completed supreme court term. one problem we have is that we anyt have an
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scribes. adam liptak and other publishers have been ordered to be chained to their desks to get their reaction to the nominee to the supreme court. however, our scholars have agreed to step up to the plate and extend their time, which will give us more time to talk about all the issues that we need to discuss. we obviously have a lot of issues to talk about. even with the extended time for our scholars panel, we will only be able to cover a few key decisions of the term. . i also want to spend a bit of time talking about the new nominee in the upcoming fight.ation therefore, i will keep my introductions brief, believe me, we brief then each of our scholars deserve. so we are honored to have before us today three very distinguished supreme court litigators. katyal, he neil cuneel
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was a graduate of your law school and clerked for stephen court.on the supreme on the obama administration, he was senior adviser to the deputy attorney general and also served as the acting solicitor general of the united states. he has argued 37 cases before the court including this past ban he teaches law at georgetown law school and has also been visiting professor at harvard ale lawh lay schools. he was also named lyti litigator 2017. year in our next guest is a partner at vincent and elkins, a graduate of harvard law school's and clerked for justice anthony kennedy on the supreme court. he is also a doj veteran, having
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spent time in the criminal division, the office of legal counsel and the solicitor general's office. john has argued nine cases before the supreme court and among his many awards, he has been praised by chambers usa, which described him as "phenomenal, are brilliant writer and a much loved and while he respected lawyer who is are: on his feet our next lawyer, a graduate of harvard law school as well and following that, he clerked for justice antonin scalia on the supreme court. he also spent time at doj as an assistant solicitor general, and has argued 16 cases before the supreme court. he has also received numerous awards and been described by chambers usa as "a rocket scientist with a keen and analytical mind, and a rising star at the appellate bar." i will resume my seat.
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and, let as start with you talk about the travel ban case, case that you argued. if you could talk about your impression. >> great, thank you for having me here. been doing this a bunch of times cannot and i love it. it is great to be here with all of you. of the best writers in the business, and john is a fabulous, fabulous advocate, so it is really great to be here. as you can see, i am just kind of stalling because i don't want to talk about the travel ban, [laughter] it is too painful -- i would just give you an overview of the numbers and then we could get ban.the travel justice ginsburg last year said "one can safely predict that next term will be a momentous one." i think the cases you hear about today -- travel ban, cake shop,
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redistricting -- they do underscore it, it was a very, very big term. numerically a pleasant, there were only 60 cases decided, historically a very low number. i was a big deal because think, the roberts court or ever since his confirmation hearing, has really tried test here the court toward unanimity whenever possible. i think three years ago, there were agreements two thirds of the time. you have to go back to the year 1940 to find a similar example, or two terms of go, when there was 59% agreement. but this time, the rate of unanimity was only 39%. have to go back to the year 2008 to find a similar low rate of unanimity. dividedourt was along somewhat predictable lines. we have seen these lineups in the past, of who disagrees a
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most with each other, it just happened a lot more this term. so, justice ginsburg and justice sotomayor agreed 48% of the time, and justice sotomayor your and justice alito disagreed 49% time, justice sotomayor and justice thomas, 59% of the time. so you do see in the data, some pretty stark things. some of the things stay the same, let justice thomas did continue his tradition of writing the most opinions, which i think, particularly along the left, like there are guys who would say, he is not up to the job, yet we see him every year, rating these pretty long opinions, 31 opinions this time compared to justice kagan's nine opinions. i don't think numbers tell too much necessarily, but to the extent that anyone is saying
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that some justices are not working or something like that,. that is obviously not the case. if there is one number and could just preview before the number of women who argued at the year.e court this as some of you saw judge kavanagh's remarks yesterday, he went out of the way to talk about something, which i really noticed -- hiring patterns. he does higher a lot of female clerks, and ultimately, i think these numbers will start to change the demographics of who is at the lectern at the supreme court. term, women argue 19 times, 12% of all arguments. and if you take out the general's office, 9% of all arguments. in terms of his confirmation and practices -- one thing about judge kavanagh, his actresses are really something to note. in 2015, president trump says -- i call for a complete and total
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shutdown of almost an immigration to the united states. ,hat first weekend on friday january 26, i think, the first travel ban was issued. we all saw the chaos at the airports that unfolded, that was immediately challenged and enjoined. and the president then decided to pull that iraq and issue a different travel ban in march, that was challenged again. then the district court enjoined it, the ninth circuit enjoined it, and it was granted certiorari, and the supreme court granted them rate of writ of certiorari. the second travel ban expired, and a third was introduced, and the solicitor general told the supreme court that the case is now moot and should be removed
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from the docket, which the supreme court did travel ban. 3 was also challenged, in hawaii along with two other individual painters. and was again and joined by the district court -- individual plaintiffs. the supreme court in the end, upheld that trouble them, at least at this preliminary stage, in terms of litigation. so there is basically two issues that are on the travel ban. want is statutory, one is constitutional. the statutory issue is basically broken into two different things. one, there is a broad statute, the 1182s. the presidentift the power to annex something that the travel ban? what is says is does whenever the president finds of the entry of aliens into the unit is rates will be detrimental to the united states, he may make a proclamation for as much.
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necessary tosees classify these aliens as immigrants or nonimmigrants. what we argued was that it was really broad, but it allowed the president to countermand the judgment of congress. and of congress has determined that this particular class of aliens can come in, that that was enough. opinion, the justices rejected that and said that congress had given broad authority, and had not specifically thought about the situation here, of a potential countries that did not have adequate vetting procedures and opinion.-- a 5-4 there was another argument we had, that there was a separate whiche -- 1152, prohibits discrimination of visas.
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there was another got rid of the whole country quota system and moved the system into thinking about individuals, not on the basis of nationality. and the court said, that is really about the implications for immigrant visas, but the president could still deny entry to people who had visas. we had argued, that would 1960tively undo the 6 five act, because the president could do it at the entry side, the quota system, as opposed to the visa side. the court said, that is a well immigrationction in law, and congress used specific language here, it was only about visas.uance of , not about the entry if they wanted to say something broadly, they would have said so. so that was a statutory argument. then, there is a constitutional argument. the first amendment forbids the establishment of religion -- the supreme court has said many times that it also means the forbidding of establishment of a
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disfavored religion. what we argued this on the residence statements as president, was that this was opinion,ly a muslimin the chi's -- the that the law was proclamation was facially neutral. because it was, one shouldn't go behind to examine other things, particularly as long as it meant the basis test. as long as there was some relationship between what the executive order proclamation was seeking to do and its actual operation, that was enough. that led to some dissents. the strongest one written by justice 02 mayor, which effectively said you have a -- when youority look at the record, it is clear what is going on in the case.
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justice breyer wrote a second concurrence, saying based on the record, he wasn't totally sure it was unconstitutional or violated the statutes, but at the preliminary stage he was on the side that it was. particularly because the argument the majority was using to try to temper the travel ban, like the existence of a waiver process or supervision, and proclamation that said if you subsequent with the travel ban, you can get a waiter -- waiver. there are few people were getting the waivers. he wanted additional proceedings to take place. he said the majority opinion weaves intact. justice wrote a two-page concurrence suggesting there was several opportunities in the local courts to examine the issues about the waiver process, discrimination, against muslims and the like. that is basically the travel
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ban. >> where does the case go from here? >> we are reviewing the decision closely. a lot of justices in the case said there were further proceedings they contemplated. we are trying to understand exactly. it is a complicated opinion. we want to take the court's lead very closely. we haven't committed anything at this point. i was struck, as somebody who worked in the bush, justice department -- bush justice department, it had its knuckles rapped a couple of times on
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national security issues. the trump administration had a better outing than we did. >> it was interesting justice breyer's opinion wanda being a dissent. the and he says if you don't agree with the things i said about what the waiver process might -- how the process might , if i hadpplied to pick, i would pick the view expressed by the two private -- primary dissenters. one of the things we will come back to is how much unanimity there was on the left side of the court, or how much outright agreement. and while justice breyer has in past terms tried to veer a was a casese, this in which the little justices wanda voting against the administration -- wound up
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voting against the administration. maybe you beat the spread after an oral argument. i'm not sure that's what some of the less informed, but very opinionated, commentators were saying after arguments. >> you made referencees to cases to the left. it is unclear how united they were. let's go right to jack phillips. was a case that was one of the reasons the term was described as one that was going to be momentous. ous.ound up being lowment we will talk about gerrymandering in which it was nomentous. the application of colorado's public accommodation discrimination statute, which says you are of public accommodation, which includes
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bakeries, retail establishments, that you may not discriminate in the offerings of goods and services on one various grounds, including, at the time, sexual orientation. this was before colorado recognized same-sex marriage, but had already changed its public accommodation discrimination statute to preclude discrimination based on sexual orientation. the baker in this case, jack phillips, is a cake artist, he makes custom cakes, in addition to things in display in his shop. and a same-sex couple came in asking for a wedding cake. he declined to make a wedding cake for them. there is a lot of disagreement in the briefs and opinions of the courts about what exactly went on, what his policy was, and exactly what services refused to provide. this is the understanding on
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which the court decided the case that he said that he would sell them other items he had in his shop. if they wanted to buy cupcakes out of the display case, he would happily sell that to them. he would not make a custom cake ars same-sex wedding -- for same-sex wedding. no matter what the cake looks like, they wound up getting a rainbow cake, he didn't get to the stage of discussing what cake they wanted to him to make. he also took the position that he would not sell a cake for a same-sex wedding to the mother of one of the grooms who was not herself gay, but was with them at one of the visits to the bakeries. the complaint was brought against mr. phillips before the colorado civil rights commission, an administrative
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agency that will wind up being important in the way the court decided the case. the commission concluded he violated the public accommodations statute and was required to, among other things, stop doing that and train his staff not to commit further violations. the colorado court of appeals decided to affirm that. it was relisted how many times? >> like 14 times. >> the court a very long time, including bridging the confirmation of justice gorsuch, to decide whether to hear the case. hear it they did. it was briefed on two theories, a free exercise theory, and a free speech theory. the baker argued that the civil rights statute was forcing him
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to provide goods and services for a wedding with which he had a sincere and deeply felt religious objection, that was a burden on his free exercise of religion. it was also compelling him to create expression in the form of a custom cake. that violated his right to free speech, as well. the u.s. wound up filing a brief focusing on the free speech theory. a lot of the argument was spent on the free speech theory, focusing on the burning question of whether cake is speech, and the corollary questions of whether a makeup artist is an artist, a hairstylists is engaged in expression, or if a chef is protected by the first amendment. that wasn't how the court decided the case. after a long time, the court
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handed down a decision by justice kennedy that attracted seven votes for the judgment that held that the colorado civil rights commission had engaged in bias decision-making because of some comments made by commissioners of the agency about mr. philips'religion. it was problematic that one commissioner described mr. phillips' justification of his decision not to provide a cake for the wedding is" it his best goat -- a despicable piece of rhetoric, and liking it to slavery or the holocaust. that this was biased and unconstitutionally discriminatory decision-making, because equated a good faith and sincerely held religious belief with rhetoric, something not
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sincerely held, but at a debating position, and called it despicable. it compared the civil rights commission's decision in esther phillips' case -- mr. phillips'case to another one were a religious customer went into other bakeries in colorado said i would like you to make a custom cake, expressing a religious message against same-sex marriage. each of the bakeries declined to make that cake. the civil rights commission rejected complaints against those bakeries on the ground that it was offensive. of course the bakeries wouldn't want to associate themselves the message. the supreme court said you can't have it both ways. you can't say mr. phillips has to make the cake, because no one would associate him the wedding
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of his customers, but these other bakers have the right to refuse service, because this message is offensive and they should attempt to associate themselves with their customers message. the case is reversed. not based on a legal rentable that there is a right to refuse service, whether for makeup or -- orrking bakers, cake bakers, but based on the way of the civil rights commission deciding the case. that's how they got the seven votes. there were various dueling concurrences, including justice kagan suggesting that she did not agree that the different treatment of the religious the same-sexd couple about a civil rights commission was a problem. justice gorsuch expressed the view that it was the problem.
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justices ginsburg and sotomayor would have upheld a decision across the board on the ground that this is a neutral rule of general availability. it is not compelling speech, and it is something a state legislature can pass, notwithstanding any religious objection that any individual might face. >> i want to ask if you have use, but i am curious about this. there was debate after the opinion came out about whether it was a narrow decision or a broader decision. arlene's flowers has been remanded for further proceedings about whether or not someone will go before one of the civil rights commissions to say we respect your views, and treat somebody civilly, not compare kkk to the nazis and members and still rule against
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them. i am wondering where you think this issue is going and if you think it is a broader decision or a narrow decision? >> i view this as a narrow decision. repeatedeted the relisting before the court suspectede case as i they had a hard time getting four votes. i suspect justice kennedy wasn't too eager to get into this case, because it brings into clash two things he feels strongly about, the right tond same-sex message. he recognized in his opinion. he was only too happy to duck it when the time came. i think the preview, i viewed the separate opinions as basically the spanish civil war as a rehearsal for what is coming next. justice gorsuch's opinion is
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that this is how conservatives will view it. justice kagan's opinion is how the liberals would pitch it. -- what cavanaugh is about that. with that. opinion, i think the court didn't want to -- it was a dignitary he was seen for so long. this is such a hard case number regardless of where -- this is a hard case, regardless of where you sit. it is quite difficult. i think that's why the opinion itself is pretty narrow. there will be skirmishing about what it means. at the end of the day, i think it means it lives to another day to be decided. i thought about when this decision came out, a lot of people say this is certain things for the travel ban case.
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i never gave that much credence. i never gave that much credence. there was skirmish in in the opinions in the travel ban case, when justice mayor quoted page after page of masterpiece to say you said we would scrutinize religious discrimination, why aren't you doing to hear -- doing it here? >> the supreme court took up a case, one of its long-standing precedents, an important first amendment case. it could have long-term political ramifications, in the janus case. >> this case has been kicking around long enough that neil has heard me preview this case in one of its previous incarnations. 23, 1977, the supreme court handed down boone versus detroit board of education, the public labor union can force nonmembers to pay expenses encouraged in
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collective bargaining, and they can't force nonmembers to fund ideological or political efforts. that stood for decade after decade . case, 2011 term in the the court took up a case involving compelled contributions of nonmembers. during the argument, justice kennedy answered a question about -- he asked a question about how much the government spends money, ultimately a political judgment. he noted the political judgments being made by the union with the expenses is when you are a public employee, promised the government spends is a political thing. the lawyer for the union responded absolutely, which he may regret now. and later in
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harris versus quinn, the court through a lot of cold water on it. i wondered why they didn't just overrule it in those cases. they kept changing on. one monthgranted before justice scalia died, it looked like the handwriting was on the wall that the majority of the court would overrule abood. justice scalia died, and about 90 days after his death, the court affirmed by an equally divided vote. we pretty much knew where the votes struck out, pretty much where you would expect. the petitioner's counsel for freedom filed a petition which was rescheduled, like eight times. i think they were waiting to see if they had a new justice on the court. at the end of the term, they dismissed it. fast-forward fo janus versus
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afscme -- to janus versus afscme. after the long conference at the end of september, the court took the case up. they argued it so we can see what justice gorsuch's views were, since he would be the tie-breaking justice. he asked no questions at argument. we had to wonder where his views -- he had a number of questions. -- he asked no questions braid we had to wonder what his view worse. to wednesday, which the court hadn't done since 2012. this was really hard-fought to the bitter end. it was decided 5-4 purdue much exactly the way you would expect based on knox and harris. justice alito wrote both of those of his opinions -- both of those other opinions. the case came from illinois. it was a great case for picking up on justice kennedy's point at
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knox. it is my home state, it kills me how much they have gone down since i left. much theent, how government spends, or how much illinois spends on benefits for its public employees, it effects the state's solvency. the opinion had two parts, i think they are both important. the first part is the straight first amendment argument. they said the majority, the conservatives, it is compelled speech, compelled subsidized speech. they said the original rationales didn't hold up in the 41-year-old rationales, labor peace and having only one union, and also to avoid free writing. the court got rid of those in a hurry. it turned toward the later rationale, offered by the union
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and dissenters, which was a pickering type of argument that the state, as an employer, has more leeway in restricting speech than it does when they are just private citizens. the majority wasn't very persuaded by those, either. story decisive is very important, because everyone is watching to see what the court will do with a new member. i don't know how much application some of it will have. the first thing out of their ebb whens it is a low it comes to first amendment cases. with thebeginning narrowest grounds. it also said it was poorly reasoned, and it was problematic to implement, and that it is hard to draw a line between chargeable expenses and nonchargeable expenses. ideological, and what is
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permissibly collective bargaining, and getting better benefits for the nonmembers? the majority said it was undermined by subsequent development in first amendment law. if there has been a lot of first amendment law, the court has become much more pro-free-speech during the four decades. finally, they said there were low reliance interest, because labor union contracts turned over every few years. everyone has known which way we are going for a long time. ed thessent really stripp bark off of the tree. most impassioned, this was not some sort of thing where she is citing dr. seuss. this was much more impassioned.
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mostly, it's no worthy for its discussion of starry decisiveness. it ended with something that use the majority of the crusade of abood, and ends with something that sounds like it is out of an old john birch society. the majority's road runs long, overwriting citizens choices. it is exact the same critics have said creates you -- on the right and set about liberal courts. -- have said about liberal courts. downee how the case went to the last day, because it was hard-fought out. both sides take on the other's argument. it has enormous implications, though they may not be as enormous as you think. only 22 states had laws permitting unions to charge these type of fees.
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it was very important in those. they were blue states. if people can get the union services for free, i'm not sure people who are members of the union -- will be members of the union, so they are not paying the union dues. it will take a lot of money out of democratic candidates and make unions less possible. public-sector unions have been very popular in recent decades. it is certainly hard for them. i suspect that efforts will be made to try to do some sort of repair and get around it. in not sophisticated enough labor law to know how successful that might be. neil will talk about the sales tax case. in this case, you have justice ginsburg joining a dissent. then overruling another president of the court. >> let's get to that one.
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the supreme court reconsidered a president in the internet sales tax. >> the case is called south dakota versus wayfarer. it is interesting because it had impact on economy, and suggests that has a lot to say about story decisive. president will live large in that confirmation. you see two rival perspectives on how to think about president -- precedent. well -- in quill, it stood by the decision called national ballast. 1967 thatsaid in states can require a retailer to collect sales tax if that retailer has an " physical presence in the state." amazon had no physical presence, now they have these bookstores, and stuff. so you bought from amazon and
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didn't have to pay the sales tax for the very same book if you got it from politics and prose, or wherever. there was a disparity. and it was decided in 1992, one national ballast was decided, the interstate economy was different. we had mail order catalogs, that's i you bought stuff. -- that's how you bought stuff. manufactured this supreme court case. that doesn'tthink make any sense in the age of the internet. the other legislature passed a law which was directly contrary to finding supreme court precedent at the time. the lawsuit if you engage in more than $100,000 in transactions in sales, the company has to collect the sales tax.
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in 1967, the supreme court said you can force individual residents to pay a tax or something like that. if you bought from amazon, the you are underay an obligation to pay a tax, but nobody followed them. south dakota access law has challenged -- was challenged by retailers that it violates quill and national ballast. it goes to the supreme court on that basis. south dakota says bella cost is basically legal formalism. it's when there was rigid, formal rules for thinking about the dormant commerce clause. the supreme court had moved away from that into something more flexible in a case called complete auto. it recently was the touchstone for dormant commerce clause. jurisprudence asked what effect
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it will have. will the burden interstate commerce, or discriminate against that of state businesses, as opposed to the rigid is there a physical presence requirement or not? in quill, the supreme court ballastdged that the decision is an outlier, in light of complete auto, but it is president. the supreme court said they will not overrule their presidents -- resurgence. --precedents. it has been several decades, in several decades, a lot of things have happened. , the abilityerce for retailers to collect taxes using software that is really easy, as opposed to the old days. say say you don't have to quill was wrongly decided, just say that the supremacy's have changed. they had this discussion about
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story decisive in their briefs. saying all the special justifications when they want to overrule president exist here. the facts have changed because of the rise of the internet and the rise of the software. there were not strong reliance interests. quill has been roundly criticized by the supreme court and commentators, and is proven unworkable. in the respondent's brief, wayfarer tries to justify, make the best case they can on the best case of sorry devices. --is hard to find they do the best job they can, basically saying precedent, precedent, precedent sorry devices. that argument doesn't win, the lineup is the only time it ever happened, it is a really unusual one. justice kennedy writes the majority opinion.
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justice kennedy is joined by ginsburg, alito, thomas, and gorsuch. the argument is the quill rule was wrong when it was formulated, and even more wrong today. basically, the touchstone of the dormant commerce clause, justice kennedy says is making sure there is an even playing field between in stators and out of stators. it was building -- feeling the balance without a physical presence. he said it doesn't make sense that physical presence should be the touchstone, that you should be some match of retailer -- massive retailer shipping goods into a state and get no tax. then you have someone who has a physical presence with one employee, and that company gets taxed. the dissent, written by the chief justice and joined by justices kagan, breyer, and since malar, they would agree
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that it may be wrong, but the precedent counsel fouling that. if it is a bad decision, you can have congress overrule it. you can have them step into the beach in the dormant commerce clause. he says there isn't any real dramatic need anymore for the court to get in this, because now the disparity that had existed, the early amazon as morey, has gone away and more internet companies adopt physical presences anyway. so you don't have the kind of mismatch that had been occurring earlier. an important case in its own right, for the internet of economy, but also important because it gives us clues about precedent. there is the lingering question, how does the same justice who joins wayfarer explain that vote, in light of what happened
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with respect to a good -- abood. >> it's a funny case for sorry devices purposes. even though it is a constitutional rule, it is one that congress can overrule. it is more of a statutory case, where the statutory sorry devices rules are much stronger, much more strongly favor president. -- precedent. >> it is also unusual in sorry devices case, because offering you have one side say they were overruled the case and the other --e says president is right precedent is right, but it is sorry devices. knowledge that the court is overruling was wrong. you don't often see that in a story decisive case. often starry decisiveness is
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being used in complete -- as an additional argument. >> there was another important constituent of case that had an impact on how administrative agencies operate. can you talk about that. >> this is about administrative law judges. case whichad another involved a different set of administrative judges, and the chief justice interrupted. that is not we mean when we say judge. these administrative law judges work for the securities and exchange commission, and are the first line adjudicators in disciplinary and similar cases against appropriate dealer. the commission has the right to review their commissions -- conditions, but they have the first line review. often there is no review by the commission.
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this is somewhat contested between the justices about whether it is because nobody asks, or because they actually have final decision-making authority. disputes a lot of the that come before the sec. an there is no dispute that the agency could appoint these aljs. the agency has not chosen to do so. they decided to have their chief alj, who is not confirmed by the senate, or appointed by the president, appoint the other aljs. that implicates the appointments clause, which says the president can appoint officers by and with consent of the senate, but as to inferior officers, congress may best the appointment of inferior officers given the president alone, in the courts of law, or at the heads of departments.
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officers,re inferior they must be appointed by the head of a department, at a minimum. we assume because the court said so in a case in 2011 that the case could serve as the head of a department. if aljs are just employees, they are no different than the janitor who sweeps the floor's at the sec, then they don't have to be appointed in accordance with the constitutional procedure at all. they could just be hired pursuant to law. this case came up through the administrative process and went to the d.c. circuit, which had a long-standing precedent saying aljs are not officers. circuit decided to reconsider that precedent. heard the heard the case en ba. at the same time, a similar decision was being heard in the
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10th circuit. in the 10th circuit, the challenger to the alj decision prevailed 2-1. meanwhile, the d.c. circuit, which had 10 active judges, heard the alj case en banc and split, upholding the alj's decision, and the sec's decision, and its own precedent. there were five votes on the court to do something different. for those who are interested in the nose counting, that meant at least one judge was appointed by a democratic president, and must have joined in the group to change approaches and appalled that the aljs were in fact officers. the case came to the supreme court. the trump administration defended the constitutionality of the apartment of the aljs
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before the d.c. circuit, having a lawyer for the department of justice go and defend the decision of the sec. when the case went to the supreme court, they changed positions. they filed a brief through this list are general, saying the court should take the case from the d.c. circuit, because it fit to the case in the 10th circuit, justice gorsuch would be recused. when they took it, they ought to defend the decision of the d.c. circuit, because the government would be arguing the appointment of alj starry decisis -- aljs is unconstitutional unless vested in the heads of departments. they also asked the court to take on another current -- case that was not in the position, how do you fire on -- an alj? do they fall within the president's power to remove?
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or are -- they are constitutionally problematic in the same way the court found in 2011, in a case called free enterprise fund, about a body that exists beneath the sec, the public company accounting oversight board. the sec appoint the members, each insulated by the removal. the supreme court said double for cause removal is impermissible. what about alj's, were also projected? if they are appointed by the sec , and the commissioners are protected from removal, does it create the same kind of problem? the court heard the case, and wand of deciding the case in favor of the challenger, but not changing the removal question. alj, thelding is that way they are set up by the sec, or officers of the -- are
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officers of the u.s., and must be appointed by minimum, the heads of the department. everything the sec alj starry decisis had been doing --aljs had been doing is invalid. the sec appointed that alj -- the aljs and did as many things as they could do and said as many other things as they still had open back to the aljs for reconsideration by proper appointment. it may not be a good enough strategy. this is an opinion by justice kagan fora lopsided majority could -- a lopsided majority of the court. you see her opinion joined by the five more conservative justices, which is an unusual lineup. you don't see justice kagan splintering from the other justices on the left side of the court very often. justice breyer has a middleground position in the dissent. justice kagan is continuing on a
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theme of president, managed to write this as presidency away as possible to write. basically the supreme court had ,n official of the tax court the special trial judge had their decisions revealed by -- reviewed by real tax court decisions. the opinion compares the alj to the special tax court judge, and says in every relevant respect, they exercise of authority as significant as, or more significant than the special trial judge. under the earlier case, disappointment is invalid, as well. these people are officers, as well. justice breyer doesn't think the comparison is quite so easy. he thinks it's a matter of what congress intends and it is long on the one hand, and a
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concurrence that still comes out in the same place. the dissenters basically say ultimately, everything these people can do is reviewed by the sec, therefore they don't have final authority, even if their authority is significant. they can punish you for contempt, but what they do is reviewable by the sec. that's good enough as a bright line rule to make them not officers of the u.s. an interesting decision for the administrative state. in particular an aspect of the majority opinion that none of the parties asked for, which is what happens if the case is sent back to an alj who has already decided it, but his appointment was invalid? the appointment has not been cured and the case is sent back. the supreme court says that you are entitled to a do over before a new judge, which is something the court had never held before. it said the reason we are doing
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this, with which justice breyer disagrees, is to incentivize people to bring appointments clause challenges. are goingnk all you to get out of your lengthy litigation all the way up to the supreme court is a do over for this person, and the reason has nothing to do with the merits, you will probably wind up losing again. you are in fact going to get a fresh appointment of an alj. if you think you can disqualify an entire administrative agency on this principle, there is still a rule necessity. someone has to be available to hear the case. if your theory would disqualify the entire agency, it is not going to work. if all it means is giving you a fresh alj, you are entitled to that. aspect that iast think is most significant about this opinion. there are tons -- when i worked at a wealthy, i became aware -- oh lc, i became of the where of the fact that people do things
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in the federal government were not appointed properly. what happens when they come to , somebody -- a former deputy wrote an article about these judges are unlawfully appointed. the congress fixed it. that happened -- all that happened was the same people ran it by. the same thing has been going so far throughout the government, they pretty much just try to repair it and ratify the decisions the same. people who made the invalid decision ratified their decision. this makes it much more problematic, because some agencies, we can talk about tons of decisions. >> you can see the same rationale applying when there is a challenge to a recess appointment, a challenge to a agency that lacks a proper quorum under its statute. agencies have gotten away with the idea that if we are caught,
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we will say what i said before, but with the proper certifications at the bottom. that may not work as much anymore. want to talk about an important first amendment case involving crisis pregnant disinterest. noticed a have pattern. i am doing the weaponize first amendment docket -- weaponizesd first amendment docket. they adopted a law for a so-called crisis pregnancy center, which are pro-life centers that tried to counsel pregnant people who are considering abortion out of doing so. it imposed to requirements on them. one for license sensors, and one for unlicensed. the licensed facility requirement -- something that is very important for this, and the majority, is that the
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requirements were gerrymandered in a way to where they only applied to these pro-life pregnancy centers. it may be there are some people i don't know-- whether they found anybody who did it, but what didn't fall in the category seemed to be driven, especially at them that it didn't matter to the majority. for the licensed facilities, they were required to pose notice in the waiting room saying -- post notice in the waiting room saying you can get a free or low-cost various services, including abortion. family planning services, contraception, prenatal services, and abortion. i'm pretty sure the state of california also pays for free childbirths, but that was not in the notice. for unlicensed facilities, it required them to say it is not
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licensed about the state of california. i think the unlicensed facilities also had to buy that notice to the person, just not post it in the waiting room. they also had to give a post to the person they are dealing with. you have to provide the notice in any advertisement you did, in at least the same size font as the message the advertisement was getting across. in addition to the notice in english, you had to provide it in whatever language is were prevalent -- languages were prevalent. it wound up being a crowded announcement. crisis pregnancy center, an -- aization, i licensed licensed and unlicensed facility filed suit. they lost, went to the ninth circuit, lost on the grounds that this was professional speech.
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it didn't pass intermediate scrutiny. they found the unlicensed warning would pass any standard scrutiny. they went up to the supreme court, and the supreme court reversed in a 5-4 decision. neither of these first amendment cases were written by justice kennedy, even though his handiwork is seen in all the precedents that led up to them. on the licensed notice, the court threw cold water on the idea that there was such a thing as a lower set of you for the speech. becausen't decide it, it didn't pass even under intermediate scrutiny. we've never said there was a thing subject to a lower standard of review. there are a couple of different categories, but this doesn't fall into either of them. can causeal speech
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all sorts of problems, the cultural revolution, and nazi germany. tois kind of a barnburner cite those two things. it is also hard to cite what is covered by professional speech, does this include barbers, for example? one of the two examples of it being subject to lower standards someview, which were first laws required professional justices to disclose nine controversial facts. if youlawyer advertises, do it on contingency basis, you may have to say you have to pay certain fees or costs encountered along the way. they said it doesn't cover it here because this is not exactly -- that is reserved for noncontroversial statements. anything having to do with abortion is not a noncontroversial statement.
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substance, this has more people, the regulation of professional conduct burdens speech. most famously, in planned parenthood versus casey, which were decisions to obtain informed consent before they do and abortion. patients of the availability of printed materials and the state. i thought this was very telling. they had to provide information about the child and various forms of assistance. they referred to a child inside a woman as a child, i think justice thomas did it. they didn't say fetus, justice kennedy probably would have written around the whole thing. it was a nonissue. the majority distinguished it saying the license notice didn't deal with informed consent, it was just telling the whole world regardless of what services we are performing, here is all of
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this information. regardless of how relevant it is to what you are coming to see us about. they said most of what went on had to do with tailoring. if their goal is to educate low income women in california, this is a really weird way of doing it. there are all sorts of clinics that will see many more of these people and don't have to provide this information. that would suggest it is not really what california wants to do. do ist really wants to separate between speakers and disadvantaged certain speakers. the unlicensed notice, even the challengers thought that would left --gher list -- ift. it required less analysis.
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they said the services don't require medical licenses, so it is funny you say we don't have a license. most of the work was done on tailoring, because there are all sorts of other people who provide different services that are related, but don't have to say they are unlicensed. people who give out contraceptives don't have to say they are unlicensed. the majority reviewed that as suspicious. they noted how burdensome this was. if you just posted an ad to life, you had to have a 29 word disclaimer that isn't potentially -- you have the 13 different languages and in the same size font. justice kennedy filed a concurrence. inn though his concurrence outtravel ban case came later because of the way the supreme court does hand downs, i view this as justice kennedy's
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valedictory, because it was on his favorite subject speech. sounded like he cared a great deal about it. done ad california had self-congratulatory thing, saying how this represented how forward thinking they were. he said there is nothing forward thinking about making people say things they don't agree with. he talked about authoritarian regimes. because this is such a central theme for justice kennedy's time on the bench, i think it was very significant. the only thing i will say about the implications, the dissenters, justice breyer filed a much more moderate. it wasn't really a firebreathing thing. it is another example of a very broad speech protection in
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roberts court. what will be interesting to see what happens is the court has ducked conversion therapy cases for it while -- for a while. there are several states that have laws prohibiting people from trying to convert gays. those have been upheld, probably on restrictions that it is ok to restrict professional speech. those have come up to the supreme court, and have been relisted, suggesting people are looking at them closely. they have all been denied. it would be interesting to see if anyone wants a renewed attack. i suspect the court will still be happy to duck that if they can. i have a couple more things i want to talk about before questions. you referred to this as nomentis, where they talked about gerrymandering cases, one out of wisconsin, one out of maryland, and they ducked the
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issues. i'm curious what any of you think was going on. and what happens in the future of these political gerrymandering cases. >> justice kennedy said " i have not yet been presented with a standard i would find manageable for gerrymandering cases, i am not ready to say never, i am not ready to declare them non-dismissible." john referred to the concurrence , i thought when justice kennedy was still on the court in this term, and the court agreed to not take up just one, but the second gerrymandering case, that he had found something he was willing to write an opinion in a gerrymandering case. it turns out not only was he not ready, but he is not going to be around to hear the next one. >> the things that were noteworthy, i felt like between the first gerrymandering
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was arguedhe second in january or something, the january 1 seemed like they were just as up in the air as they were then. you should have seen at least some opinions circulated. i thought this is going to be tough. they cared enough about ducking it, that they ducked the second one, even though it is a mandatory jurisdiction case, an appeal, and they can dismiss it as improperly granted. the other thing i thought was interesting was i thought for a long time that justice kennedy was going to retire. i did until the concurrence of justice kagan in gill, it seemed like a big love letter to justice kennedy s thinking. i thought she would not be investing all that time is she
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thought he was going to be leaving the court. thought he isi not going to retire. at least she has better information about him retiring. shows you what i know. >> in a moment, i will open it up to questions. keep your hand raised until you get a microphone, then identify yourself,is, keep it short. -- no speeches, keep it short. i want to talk about your impressions of the justice gorsuch after the term of the court, and also about the new nominee. whoever would like to go in first. the thing that struck me is justice gorsuch had more 5-4 opinions than any justice since
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justice kennedy. i thought that was very significant. talk about jumping in with both feet. in years to come, we may figure out why he had so many. if it means the chief had confidence in him, or if they were all 9-0 after conference. [laughter] released --report the way the supreme court released the paper, my grandchildren might not know. what i thought was interesting was the last i checked, and i checked -- i haven't actually on,ked since the last hand but i did it before my supreme court roundup of the term, which was on wednesday of hand downs. it looked like justice gorsuch agreed most with justice kennedy. i thought that was telling, because justice gorsuch had the most agreement with justice
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kennedy. this was a term where all of his ideological i passed along for whatever it was worth. probably not much. respect to judge kavanagh, i almost feel bad he is being nominated for the seat that is the swing seat. for folks who care about abortion, or affirmative action, or marriage equality, there is going to be a fight here that maybe if it was a different seat, you wouldn't have seen it in the same way. nominatedperson is and is under a white house that is subject under a lot of investigations. i think that would've skiers some things about the nominee. -- i think that would've skiers
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some of the things about the nominee. brilliant,incredibly careful person. someone who will move to court in a conservative direction. i think that will be the debate in the weeks to come. in my practice, we have a rule, we hire that kind of person. he is legendary for his preparation. we've giving you the highlights of supreme court opinions, there is some boring stuff. we will argue those cases. judge kavanagh reads every one of those opinions, sits down with his clerks, and goes through them. judge, i thinkl it will be a very interesting set of hearings. >> i am interested in whether he will bring to the court a practice he currently has of having a laptop on the bench.
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>> i have always had a soft spot for judge kavanagh. somebody told me we had the distinction of reading the two -- being the two kennedy clerks with the lowest grades. [laughter] i have been tremendously impressed with the guy. he has very thoughtful opinions, becomingquently are supreme court majority opinions. he writes a lot of thoughtful opinions on things, he does book reviews that are thoughtful. i was reading a review he did of david barron's book on the president's foreign affairs warmaking powers. i would like to follow him around for a day to see if he has the same 24 hours i do, because he is so incredibly productive. i have had only a couple of arguments in front of them,
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where he was delightful. i told my client, we had a very tough case for the first one, if we don't get his vote, we don't deserve to win. i think enough of his judgment that i think, i will do the best i can, but if i don't get his boat, i probably should have lost. i can't say i would think that about every single case. the cases i have seen, i have thought that. >> he is a very careful and meticulous judge, extremely well-prepared. he comes in the d.c. circuit. he is obviously very immersed in the separation of powers and the laws governing the state. one of the ways he will replace justice kennedy and potentially change the court -- i am not saying move in one direction, but potentially change the court -- is in what cases they'll choose to hear going forward. and there may be more of a bend toward hearing some of the cases and some of the issues that the court has thus far declined to
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take up, including the exciting but significant question of how much deference is due to agencies, when they are interpreting their own regulations, interpreting statutes. >> questions? jordan? >> jordan lawrence with alliance defending freedom. there are so many things i could ask, but i will go in a more esoteric direction with the sosby-bauer. this is the case about the police who had a search of somebody's house, and the woman couldn't pray. and i think it was the 10th circuit said there was qualified immunity because it hadn't been clearly established that cops can't stop people from praying. and it was relisted a zillion times, and then they summarily reversed and said, look at the fourth amendment issue as well as the first amendment issue because we think it's wrapped up in this.
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and so my question is, is that the court, is that just -- it seems like they could have just denied cert. does that indicate the court, there is some at least discomfort with the whole qualified immunity and they could not quite decide what to do, so they punted it back and they are kind of sending -- we are semi uncomfortable with the frequent invoking of qualified immunity to let the police off the hook? or what does that say to you? >> well, the question of whether qualified immunity should continue to exist is something that justice thomas has started to put on the court's radar. but i think they're clearly not going to do that in a summary opinion. but the court has been for years dealing with a fair number of cases that don't deserve a space
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on the merits docket by reversing them summarily. and they have tended to be cases in which qualified immunity was denied below or habeas relief was granted below. or death penalty cases from texas. is anis case i think example of the court finding a case in which qualified immunity was granted and it was willing to reverse that summarily. i see that as not being a coincidence, but that came right hadr justice sotomayor started to, frankly, make a stink about which cases the court was choosing to summarily reversed, and saying essentially, why is it always the officer who wins on a reversal? so here is a case the broader majority of the court can get behind a summary reversal in a position. >> just as an interesting bit of trivia, that was written by james ho, a petition was filed
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by james ho -- who between the filing and, you know, when it was resolved, of course, he was confirmed and actually has had several sittings as a judge on the 10th circuit. here.r high. . i am a law student. i'm working here as a summer intern here in d.c. i just had a question in regards to the gerrymandering cases, especially gill versus wolford. i just wanted your take on the possibility of the court recognizing the first amendment rights association claims and using that as a basis for overturning gerrymandering cases. and also if they ever deal with that sort of effect, the search for a so-called manageable standard in future gerrymandering cases?
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>> the first amendment theory was not in the gill case, but it was in the beneset case for maryland that the court decided to hear after hearing argument in the gill case, and i think a lot of tea leaf readers thought, aha, they have taken this case precisely so that they can decide the first amendment question which is not properly presented in the gill case. but then, of course, they did not. >> but i'm referring to the concurrence by kagan that was cited, and the fact that now they have three more justices on the concurrence, whether they could use that in future gerrymandering cases to overturn gerrymandering cases in the future. >> this goes to your point before about whether it is a roadmap. >> i just don't know. i always viewed that theory as something that was -- somebody came up with that to try to pitch for kennedy, get a view
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that kennedy would accept. and now that he will be gone from the court after july 31, i don't know if there are any other takers for that. it's just not something i paid attention to one way or the other. >> any other questions? down here. >> way down here. colleen from the commonwealth foundation in pennsylvania. i don't know if this is within your guys' knowledge base, but [indiscernible] -- wider implications of that? will it have implications for collective bargaining, being able topped out -- being able to opt out if they work in the
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public sector, not being in the collective bargaining unit? >> that i just can't tell you. i can't tell you. i don't know that there will be anybody else who would be able to negotiate besides the union. it seems to me that it would kind of decrease the union's leverage in getting stuff. but i couldn't tell you if there would be some sort of competing base that people would be able to negotiate. i don't think they would be able to. i thought the union is the exclusive representative, even if they are a poor union with fewer members. >> other questions? yeah, down here. let's go with this other mic. [laughter] try this one. >> hello. this is a little bit off topic, but president trump said before -- sorry, i'm with the globe post. president trump said before he
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started interviewing for the supreme court vacancy that he would not ask the candidates their opinions on roe v. wade. he said something to the effect of it's like a personal matter. do you agree that opinions on landmark supreme court cases are personal matters for a potential supreme court justice? >> i think the hard thing here is that the president himself in 2016 said, you know, that i will appoint -- if i get to appoint two or three more justices, they will be pro-life and roe v. wade will be overturned. and so you've got that statement out there. i think it is definitely appropriate that the president does not ask a nominee necessarily about any particular case or something like that. but i do think what you will see in these hearings is very much the argument that, look, the president said that and, judge kavanagh, you are going to potentially hold the swing seat on abortion, so what do you
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think about planned parenthood v. casey? are you distancing yourself from the president's 2016 remarks or not? it is a tough question for him. i think senators are going to stay, -- going to say, study, read all the briefs, tell us what you would do. i suspect that will be a big line of inquiry. >> i have always -- the reason i'm at a big firm is so that i can always talk to somebody else about ethical questions, and i have never understood exactly the line of how much you can say as a judicial candidate about a case. i think probably the safest thing you can do is just talk about what kind of analysis, how you would think about it rather than give a bottom line answer. i've never paid that much attention to the exact parameters of what is called the ginsburg rule about not answering questions about subjects that may come before you. i will say, though, that in my experience and from what i hear
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, it is generally a good idea for people who are vetting candidates not to ask them about particular opinions, because one thing they can ask you is, what did they talk to you about? it's my understanding they talk to you more about modes of analysis rather than particular opinions. i think it's been that way for a long time. >> just on that, and i think there is a big distinction between asking someone, what do you think about x, which may come before the court or maybe a pending case, and what do you think about y, some historical case from 25 years ago, like planned parenthood v casey. i think it is widely understood and almost every nominee has said that brown v. board of education was rightly decided, and the one nominee that didn't faced a very painful consequence as a result. one can debate whether or not that was appropriate and fair or not, but i think at this that point ship has sailed about historical cases. justice scalia was asked whether marjorie b madison was
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rightly decided and -- whether marbury versus madison was rightly decided and he declined to take a position on it. [laughter] >> gentlemen, i want to thank you for going overtime for today's session, and please join me in thanking our panelists. [applause] [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] brett kavanaugh is president trump's nominee for the supreme court. follow the confirmation process on c-span as judge kavanagh meets with key senators, followed by senate confirmation hearings and the boat. watch live on c-span, watch live on, or listen with the free c-span radio app. announcer: wednesday on c-span,
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the house returns at 10:00 a.m. eastern. at noon, they take up legislation sponsored by alexa -- a lax -- alaska congressman don young. on c-span2, the senate continues work on judicial and executive nominations. also at 10:00 a.m., officials from the state department brief inmakers on u.s. interests latin america and the caribbean, live on c-span3. in the afternoon, the acting administrator of the environmental protection agency addresses agency staff at their washington headquarters and the senate finance subcommittee looks at paid family leave. next, german chancellor angela merkel addressed germany's lower house of parliament last week. she voiced caution about the possibility of a trade war with the u.s. following president trump's steel and aluminum tariffs on the european union. she outlined her new immigration policy. this is en


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