Skip to main content

tv   Heritage Panel Examines Judge Kavanaughs Rulings  CSPAN  August 18, 2018 7:02pm-8:02pm EDT

7:02 pm
leaders talk about issues facing their communities, including acceptance, inclusion, and civic engagement. >> we talked about voting and running for office, but there is so much political work that has to happen beyond those things. was saying,eing -- just as we have been here, policy is moving to prevent queer peopleent from adopting children. for the children to stay in the system than having for bid, we're -- queer people adopt them. >> the senate judiciary committee begins confirmation hearings for brett kavanaugh on september 4. c-span3 will show the hearings live. review hisists
7:03 pm
rulings through the years at an event held by the heritage foundation. hour.s about one >> welcome to the heritage foundation. i am elizabeth, a legal fellow here. thank you for coming. on july 9, president donald trump nominated brett kavanaugh to become an associate justice on the supreme court. called brett kavanaugh a judge's judge and noted he is one of the finest legal minds of our time. for the past 12 years, judge kavanaugh has served on the d.c. circuit. he has written more than 300
7:04 pm
opinions and demonstrated he is a judge the tries to interpret the constitution and laws according to the text. he has said the text of the law is the law and judges are not authorized to rewrite laws simply because they think they should be updated. he has written extensively on and off the bench about separation of powers and statutory interpretation. he has co-authored a book on judicial president -- precende nt. the senate judiciary committee will hold a hearing in three weeks to examine judge kavanaugh's record and philosophy. today we have a panel of distinguished experts to discuss judge kavanaugh's most significant rulings in the areas of individual rights, administrative law, and national security. in order to get to our panelists, i will keep introductions brief. first up is justin walker, an assistant professor of law at the university of louisville. he previously worked at gibson
7:05 pm
dunn in washington. in addition to serving as a speech writer. he is a graduate of duke university and harvard law school, and i would be remiss if i didn't mention that we are both graduates of sacred heart school in louisville. next up is chris walker and associate professor of law at the ohio state university or he researches administrative law and regulation. before entering academia, he served in the justice department representing federal agencies and defending federal regulations in a variety of contexts. kennedyed for justice on the supreme court. then we will hear from jennifer mascot, and assistant professor at the scalia law school.
7:06 pm
she is also a public member of the administrative conference of the united states. jennifer clerked for judge kavanaugh. i think she was the first law clerk he hired. also for justice clarence thomas on the supreme court. she is a graduate of the university of maryland and george washington university law school. last but not least, we will hear , he runs a jaffer national security program. he served as the chief counsel and counsel to the house intelligence community. he was one of neil gorsuch's clerks. -- ofa graduate of the ucla, the chicago law school and the naval war college. with that, i will turn it over
7:07 pm
to justin. about agoing to talk few of judge kavanaugh's opinions about individual rights. there's not enough time to go through all of them, he has been on the bench 12 years, written over 300 opinions. hopefully you have watched enough cable news or read enough coverage to know that 13 of his opinions have been endorsed by the supreme court. that thehink suggests opinions we will talk about today are in the mainstream. endorsed not just by the most conservative members of the court, but by less conservative members, and sometimes unanimously. since there is not time to cover all individual liberties, i will start with the first amendment and get all the way to the second. [laughter] two free to highlight
7:08 pm
speech opinions, a religious liberty opinion and a second amendment opinion, gun rights. kavanaugh,ech, judge one of his most recent opinions concerned the obama administration net neutrality law. more panelists can speak eloquently and in-depth about the first part of the opinion, which concerns whether or not a 1934 statute authorized the fcc to regulate the internet. i think the date -- i'll let that pass. the second part of the opinion suggests a first amendment violation with the net neutrality law, based on two opinions by the court, colonel -- turner broadcasting one and
7:09 pm
2. in these opinions, the court suggested that the federal government could not commandeer a cable network or cable provider and force them to carry content, unless there was a monopoly issue that would survive intermediate scrutiny. the principle behind that is that, you know, a newspaper does not have to be in ben franklin's words, a "stagecoach with seats everyone."e to go -- so, if i want to publish the "wall street journal," or the "new york times," i as the owner of any newspaper have some control over the content that gets published. cable providers sit in a similar situation according to turner i and turner ii, and we can debate whether or not those were correctly decided -- on judge kavanaugh's, he was bound to apply them.
7:10 pm
he analogize is his cable and internet providers to them or it he says, "if the relative communications market, the theory is the marketplace itself will generate and provide room for diversity in multiplicity of voices without a need or justification for government interference with private editorial choices." that is the lesson of the critical sentence in buckley v delano. the lesson of turner broadcasting, and indeed, the lesson of the entire history of first amendment in competition law. so in a second opinion by judge kavanaugh, in this case called emily's list, we see him applying these neutral principles in order to side with a political action group that was on the left side of politics. for those of their who worry about judges in justice kagan's
7:11 pm
words "weaponize in the help amendment in order to their own causes," i think this is a good example of a republican-appointed judge applying the first amendment in a neutral, independent, fair-minded, mainstream way in the case that helped emily's list, a liberal group that supports abortion rights and female pro-choice candidates. what he said there was the fec's regulation of these groups was invalid, because they were constricting how much money they could spend to speak. , as the supreme court has done, regulations on donations directly to candidates, which can be , and hed under buckley distinguished that from a nonprofit organization, like emily's list, expenditures on advocacy and speech. this was before citizens united was decided. that --sted a principle
7:12 pm
it is just not the government's job to tell people -- we want to hear less from you. speech, tofrom free calledn, in a case roberts, each harris the case of a prayer before the presidential oaths, and in judge kavanaugh's opinion, i think it was noteworthy for several reasons. one is he sides against that plaintiff, but he shows the kind of fair-minded thoughtfulness that one would hope a judge would show when a plaintiff is bringing a deeply held belief. so he approaches the issue with an open mind and then he asks, what does the supreme court say the test should be? in the establishment clause
7:13 pm
area, as many of you probably read the other day the arase "as you know" is micro-aggression. so scratch that. as you may or may not know, the establishment clause -- >> i'm not sure that's any better. [laughter] >> is not the best area of constitutional law. is it history and tradition? what type of coercion counts? once you decide on what kind of test to apply, it is not always clear how that test should be applied. so you get, for example, the supreme court allowing one 10 commandments display on the same day it does not allow another. what is noteworthy about judge kavanaugh's opinion is that he goes -- he takes guidance in the
7:14 pm
supreme court's approach to the issue of -- he uses history and tradition rather than the coercion test or endorsement test. that approach was vindicated several years later when the supreme court decided the town of greece. there was a prayer before the local government board and the court, in an opinion written by justice kennedy for the five conservative majority said the prayer was ok just as judge kavanaugh had done. last issue i will mention before passing the microphone is the second amendment.
7:15 pm
retaliatoryed with measures, including a ban on semi automatic rifles. he sued again. it went to a circuit. included two other them if there are three republican appointees -- there is reason for optimism for him. judge kavanaugh was the only of the three judges who said that he had the right to the weapon in question. he did it not because he said he likes guns or dislikes guns, to his policy preferences have no bearing on the question. he also noted that he understands the problems of crime. his lived in the d.c. area for almost all of his life. he recognizes that it is a serious issue. but he said that if you read justice scalia's opinion, it suggests that we don't conduct
7:16 pm
some kind of free wielding balancing fundamental right like -- free wielding balance test when it comes to a fundamental right like the right to possess a weapon. that balancing test was done for us by the founders and framers and ratifiers when they put the second amendment in the bill of rights. the question for a judge is not how great is the government interest, or how narrowly tailored is the regulation in question, the question for the judge is is the regulation consistent with our history and tradition? in 52 pages his dissent goes through a thorough, thoughtful analysis of the history. it concludes that there is not a history and tradition that would these the banning of weapons.
7:17 pm
four opinions i'm looking forward to hearing a lot more in other areas. chris: tough act to follow. free speech, religion, guns, and to have to talk about administrative law. administrative law is the law that is how federal agencies regulate us and how courts review the regulations. we live in an era today where most lawmaking is done by federal agencies and not congress or the courts. to provide an imperfect snapshot, if you look over the 2015-2016 period, federal agencies promulgated over 60,000 pages in the federal register. during the same period, congress passed 329 public laws, taking up 3000 pages in the statutes at large. we live in an era where lawmaking by regulation predominates.
7:18 pm
as exciting it is to me to see president trump nominate someone from the d.c. circuit, which is by congressional design, a court that specializes in administrative law. they see the vast -- not the vast majority. it is the preeminent administrative law court we have been the united states. judge kavanaugh is one of the sophisticated and creative jurists in the judiciary when it comes to administer the law. as an administrative law professor, this is a geek fest. fun,ught gorsuch was this is more sophisticated and fun. if you are hoping for a deconstruction of the administrative state as steve bannon said, you will be disappointed. judge kavanaugh is someone who cares deeply about administrative law and regulatory practice. in fact, some of the claims you are seeing are a little bit fun. the washington post last week, a law professor said, "this is the
7:19 pm
end of the regulatory state as we know it. up thge kavanaugh goes ere, they will never find a regulation that is acceptable." that's just not an accurate reading of the record. we have a very substantial record here. it is over a dozen years on the court. he is written over 120 decisions that deal with administrative law. i can't cover them all here. what we will not see a deconstruction of the administrative state, not to bury the lead, judge kavanaugh is someone who will reign in the administrative state or to a tighter leash. i will sketch that out in two different contexts in the times that i have remaining to give you a sense of how he would do that. this context is explained in much more detail on a scotus did.ii
7:20 pm
chevron deference is a hot topic in administrative law. this is the doctrine established by the supreme court in 1984. it said federal agencies, not courts were the very interpreters of ambiguous statutes. it shifts the law interpretive power, at least with respect to certain statutes that agencies administer, from courts to federal agencies. this at the time was part of a concerted movement. this was the reagan administration. it was a deregulatory action. in recent years, there have been frequent criticism of chevron deference, likely from those right of center. perhaps tired of seeing the obama administration be creative with regulation when they couldn't achieve that goal through legislation. this is going to be a core issue at the senate judiciary hearing in three weeks. it was with justice gorsuch and i think it will be with judge
7:21 pm
kavanaugh as well. there are three different ways that judge kavanaugh would narrow chevron deference. the first is, he's a lot like justice scalia when it comes to interpreting statutes. he is a textualist. ofuses all the tools statutory lubrication -- statutory limitation to evaluate. that matters under chevron because if the statute is unambiguous, the agency doesn't get any deference. that is the first step of chevron. for judge kavanaugh and his opinions, you see him finding statutes unambiguous more often than a lot of his peers. at a lecture he gave here last year, he explained that in an eloquent way, building on a harvard law review where he said some judges want to be 90% certain that a statute is unambiguous before they declare it unambiguous.
7:22 pm
i am probably closer to 60%. he will use the tools and say, if it is fairly certain, i am not going to defer to the federal agency. it's quite similar to a opinion from the supreme court written by justice gorsuch. he said the standard should be clear enough. not crystal clear, but a clear enough standard. the first way you will see a justice kavanaugh differ perhaps from his former boss is, he is much more of a textual ist. he will find statutes and a biggie was, which will leave federal agencies with less room to maneuver. the net neutrality regulation and the dissent from denial. justice kavanagh on the first half of that decision explains at length his approach to the major questions doctrine. that is an exception to chevron deference.
7:23 pm
this exception got a lot of the fanfare in the obamacare statutory challenge that made it to the supreme court. there, chief justice roberts, writing for a six justice majority applied it and said, when it comes to statutory ambiguities that invoke a major political or economic question, we will not defer to the agency. here, you are asking us to defer to the irs about how to regulate billions of dollars in the health market. that's a major question. the irs does not have the expertise. we are not going to defer. we will decide ourselves. but chief justice roberts found a way for the irs to win. but there is a major question exception to chevron deference. in the net neutrality regulation, judge kavanaugh confronted the major questions doctrine and embraced it, as he should. he said this applies here as well. regulating the internet in this
7:24 pm
way is not -- is a major political and economic question . congress has not spoken clearly. we will not defer to the agencies. we will decide this ourselves. if we had more time, i would explain -- he took it a step further and not only did you not get chevron deference, you would say the agency wouldn't even have the authority to regulate unless there were a clear statement to the contrary. that is the second wave you might have justice kavanaugh narrowing chevron deference. i would encourage you to go read the story lecture that he heritage foundation published in january. there he explains a deeper concern with chevron deference with it being misapplied and suggests that we should narrow it and only allow for difference -- deference when there is an open ended ground of authority and not when it is a specific statutory provision. his reasoning is is out of political accountability.
7:25 pm
his worry is that judges will be inserting policy preferences. on the flipside, his idea that there is more -- that the judges can say what statutes mean, but shouldn't be making policy decisions. that is the chevron side. at the end of the day -- along the same point, if you read justice kennedy's concurrence in perera, where he expressed concerns with chevron deference, they look a lot like judge kavanaugh. you will see a judge that will probably be open to narrowing chevron deference by finding statute unambiguous and not giving agencies the authority to interpret major questions and perhaps by reining in some of the lower court mischief -- at least what he views as mischief. the second area is under the administrative procedure act, i won't expend as much time on this.
7:26 pm
judge kavanaugh takes a hard look review seriously. the most prominent decision is one that led to michigan the epa decision of the supreme court where judge kavanaugh in dissent at the d.c. circuits said that when the statute says necessary and appropriate, that means the epa must consider cost. under the administrative procedure act ultimately a 5-4 conservative majority of the court endorsed that position. but you get a reading that justice kavanaugh will look at agency decisions and ask that they consider all the statutory factors. are they acting within their statutory authority? did they consider counter arguments? if so, the agency will not be able to regulate. we will send it back. if so, the agency wins. if you look at his record, agencies win, agencies lose.
7:27 pm
sometimes it is a liberal win when the agency loses. sometimes it's a conservative win. he is quite principal in applying the administrative procedure act. i will say, there have been a number of environmental law professors that have worried about the future of the administrative state under the administrative procedure act. i will pull one quote from professor michael livermore. he said, given congressional deadlock, this has become the primary vehicle for progress over the last several decades. replacing kennedy with kavanaugh will make this more difficult, with risk. fraught i agree with that. getting back to where i started, congress is not legislating. agencies are using stale statutes that have not been updated in decades to make major decisions that affect our
7:28 pm
everyday lives, and justice kavanaugh will not give that a free pass. if the statute doesn't allow the regulus -- allow the agency to regulate, he will not let them regulate. in that sense, i do think some of these concerns raised by administrative law and environmental law professors -- there is some foundation to them. one of us wouldn't those as concerns though. some of us would think that congress should legislate, if there is an issue of major political or economic significance, congress should take the lead and say yes, here are our instructions for how you deal with x, y, or z. in justice kavanaugh you will see someone motivated by separation of powers. they will hold agencies accountable to what congress has told them they can and cannot do. quite frankly, i think in some ways that will be more searching than justice kennedy. we will not see deconstruction
7:29 pm
of the administrative state. jennifer: thanks to heritage for having this event. it is a great honor to be a former law clerk of judge talkinge and be her about his record. the process is a serious and weighty thing. i think it is great we are able to take a close look at judge kavanaugh's record. as justin mentioned, he has quite an extensive record. more than 300 opinions. a number of which were adopted with their reasoning later by the supreme court and cited repeatedly by the supreme court. so i will peel off a piece of judge kavanaugh's jurisprudence today dealing with structural safeguards for government which are in the constitution. i think judge kavanaugh has written a lot about this in his jurisprudence and there are two themes that a lot of his opinions and separate writings talk about. one is the safeguard of separation of powers.
7:30 pm
that is a term we used to talk up the fact that the three branches of government at the federal level all have different roles to play. judge kavanaugh has told us quite a lot about what he thinks the proper roles are under the constitution. another structural distinct safeguard involves the president and his role within the executive branch. i think the executive branch comes up a lot because it is the arguably most complex branch with a lot of administrative layers. so judge kavanaugh has written quite a bit about what the executive's proper role is in being able to supervise that branch. these themes come out a lot in his writing. basically, he has emphasized that to keep accountability in government, the role of congress and the role of the executive as being the elected branches of government is to be playing the lead and making policy, carrying out policy. he has conceptualized the role of the judge as more of an
7:31 pm
umpire. that doesn't always mean a judge is not going to step in, but it means a judge should try to be independent, fair-minded, look at neutral principles. judge kavanaugh has written a lot in general about how if the constitution says the branches are supposed to operate a particular way or congress has passed a statute regulating the executive and a certain way it is the role of the judge to step in and apply the law. but where there isn't a statutory or constitutional limitation the judge is not supposed to inject policy and is to neutrally leave things to the political branches.
7:32 pm
by federal power being divided among three branches, multiple actors have to agree before regulatestaken that private rights. also on the side of the executive branch and having accountability for the president is the president is the only elected actor in the executive branch. as the public, we have a role in bringing responsibility only to the extent that the president is able to oversee what is going on. i don't know if you have had a chance to read any of judge heanaugh's questionnaires submitted, but one of the questions is his 10 most significant opinions. in the answers, you can see the focus of his jurisprudence because the court on which he sits sees lots of agency cases. it has been themes of separation of power. 2008 opinion in the county oversight board.
7:33 pm
there are a number of things to see about that kavanaugh and his understanding of the law. what i think it's interesting is that as a relatively junior judge at the time, in his second year on the bench, is writing a dissent. he is already being independent . he is clearly applying the laws. even though in that case it put him at odds with his colleagues. he also is right off the bat influential in the sense that to wo years later, the supreme court, in an opinion by chief justice roberts, comes down on the side that judge kavanaugh had laid out in his opinion of feeling as though there were not the proper accountability for executive power and the structure that was set up. to talk about the facts of the case, and this is how we can see more of judge kavanaugh's understanding of democratic accountability. the securities and exchange commission, as you all know is what we think of as an independent agency. commissioners are appointed by the president, but are limited in terms of how they can be fired. it is not like a cabinet
7:34 pm
secretary, where if the president doesn't like a decision the secretary makes, he can fire them. at least under how the supreme court has interpreted the state of law, there are tenure protections for commissioners. what happened in that case was under the 2002 act, another entity was created that was under the sec but had quite a lot of independent policy direction authority. the court was being asked to look at whether it was ok that there were also tenure protections for these board members. meaning not only could the president not easily remove a commissioner who was not executing his policy, but the sec could not easily fire a board member at the time. if the board member was moving things in a different direction. you can see judge kavanaugh's interpretive principles, because he starts with the constitutional text. presidentsn -- the
7:35 pm
to carry out executive power. he looked at the history as well and this being a unique structure in our system where for decades there have been supreme court saying it is constitutional and has limitations on firing te he -- firing the heads of independent agencies. that had never been taken to this next level where it was also hard for the independent commissioners themselves to be able to oversee what was happening within that branch of government. was that appropriate for folks like the board members who work -- who were carrying out important decisions? judge kavanaugh wrote an opinion saying no, which the supreme court later agreed with. the general idea of accountability, which judge kavanaugh thought was important for public responsibility, has been a theme throughout other opinions. his career on the d c circuit nded -- before the
7:36 pm
court earlier this year, judge kavanaugh talked about another unique agency structure, the head of the consumer financial protection bureau and whether it is constitutional for that agency, which operates like an independent agency to be headed just by one person instead of the multiple heads we have at the top of the securities and exchange commission, and again raised questions about whether a president who is elected can fully carry out the agenda that the public has elected the president to carry out if the president is impacted in being able to supervise what is going on. judge kavanaugh carried that out again in another opinion dealing with a different issue in 2012. a decision that is also interesting with the theme of executive accountability. in that case, the issue was whether nuclear waste would continue to be stored at a facility.
7:37 pm
in that case, the dispute was over -- the particular issue he was whether the independent nuclear regulatory commission or the more direct way accountable to the president, department of energy would have the final say on whether the administration was going to continue to apply to store waste there. judge kavanaugh spent time in his concurring opinion talking about how, because at the end of the date the source of accountability for government is the people and elections, in big policymaking decisions it would seem more appropriate within the constitutional structure for greater weight to be given to the department of energy, which was more closely accountable to the president. i think that concurring opinion is remarkable for two additional reasons. one, because it shows the same theme chris is talking about, neutral application of principles and the idea of accountability regardless of what political party is in power
7:38 pm
and regardless of whether it will end up being pro or anti-regulation. at some of that case, it was president obama who was in power. opinionvanaugh in that -- being able to carry out campaign promises the president be able to make the key policy decisions that need to be made in carrying out the executive's role that congress has authorized the executive to play. he emphasized that his approach in that case would have -- would be in favor of president obama being able to withdraw the application to store nuclear waste. the other thing that is relevant is judge kavanaugh tells us about his view of precedent toward the back and of that. even though it is relevant to think about independent agencies versus executive agencies in terms of which agency should have a role for which issues,
7:39 pm
the supreme court in the case of humphrey's executor had already decided the issue of the constitutionality of independent agencies that was binding precedent and needed to be respected. he emphasized that and told us about his understanding of long-standing precedent in that case. just quickly, touching on a couple more opinions that get a little more into regulation itself, moving on with the theme of neutral principles, the first public case i talked about were about the principle of the executive and how much supervision to needs to be within the executive ranch. judge kavanaugh has written at least as much about the role of congress and its interplay with the executive as well and talking about how congress, enacted a statute, if it is supporting agency action and regulations that, that needs to be adhered to. just the same as if an agency seems to be going outside of its role.
7:40 pm
there is a pair of cases involving the epa that i think illustrate this point. in 2012, coalition for responsible regulation versus epa, judge kavanaugh said he thought the epa had to o expansively interpreted its authority to regulate greenhouse gases in its interpretation of the word 'air pollutant.' the next year, a similar question came up in biological diversity versus epa, and judge kavanaugh in the second opinion ended up writing an opinion that would have been quite pro-regulation, where he talked about the d.c. circuit judge had reached an interpretation different from his own in the prior case. precedent needed to be adhered to and neutrally applied. in the 2013 case, the epa had more authority or responsibility to be requiring permits in the
7:41 pm
area of carbon dioxide emissions than the epa thought had. you see a person who is very much case-by-case looking to the relevant legal authority, whether it will come out on one policy side or the other. just one other way that plays out is judge kavanaugh, and we will talk more about this in the area of national security, but judge kavanaugh has advocated and noted the role of congress not just in restraining or guiding how agencies can act in regulation but also and other areas of power shared by the executive and congress. national security and international affairs as well, judge kavanaugh has talked about the role of congress in relating for the executive branch and how it is the role of courts to make sure that those limits are being adhered to. sometimes i think judge
7:42 pm
kavanaugh's opinions that i talked about on the front end have been interpreted as being pro-presidential power. i think that is wrong way to look at judge kavanaugh's jurisprudence. what he has been looking at are two separate issues. within the area where the executive lawfully operates, judge kavanaugh is saying for individual freedom to be protected, the elected officer have has to be able to supervise what happens in the executive branch. in a separate and distinct issue, how much power the executive branch should carry out in relation to the amount of the role congress has. congress has a quite a bit of a policy of theg federal government, and also at times in partnering with the executive in some of the foreign relations areas. judge kavanaugh is focused on those areas.
7:43 pm
jameel: thanks to my panelists for coming to the heritage foundation and for having us. i would like to talk about judge kavanaugh's record in national security cases. i scuttled myself so i have a hard stop at 1:00. i will keep it very short so we have time for questions. i will stick around as long as i can. the theme you take from judge kavanaugh's cases is a separation of powers. the idea that each of the court and branches of government has a critical and important role to play in national security cases. we historically have thought of national security as an area largely in the control of the president. what is interesting about that is when you look at the constitution, there were tremendous number of powers assigned to the president and congress. on numerical basis alone, congress has more power if you count up the number of times the national security or foreign
7:44 pm
inicy matters are mentioned the constitution than the president. the president has the executive power and commander-in-chief power which has been understood to be quite important and quite significant. congress has a large number of things, the power to declare war and raise and support armies. what you see in judge kavanaugh's opinions is a recognition of that role. the role of congress in constraining presidential authority in warmaking and in regulating presidential authority in foreign policy and the like. at the same time, judge kavanaugh's opinions demonstrate a healthy respect for the role of political branches in making these choices. but not a recognition that they have the primary role, but that courts do have a role. it's not that the courts aren't important and don't have something to do, but their job is to ensure that when the political branches are tangling in the space, each one is given their due. if you look at his opinion where
7:45 pm
he had a a concurring opinion, he notes the importance of the court deciding. he says no, courts have an important role to play because in an area where congress has sought to regulate the national security authorities of the president through statute, if the courts decide not to do anything into ticket off, they have moved in favor of the executive branch. the executive decision to act stands. no matter the congress thought to regulate that decision. it is important for judge kavanaugh for courts to play their role, which is at times policing the separation of powers and ensuring that the coordinate political branches play the role they're supposed to. at the same time, what you see in judge kavanaugh's opinion is a recognition that when congress does act, congress also does not
7:46 pm
have unlimited authority. there are things congress might do to contravene the constitution. to the extent you are interpreting congressional action, you interpret to avoid retroactive activity. gitmo conflict -- you think, this guy is a bush administration lawyer, he is pro-government. what you find out is, it's not about being pro-or anti-government, what it's about is enforcing the rules as congress has written them and the constitution as the framers understood it to be. when you see there, those cases are ones where he has determined the law can't be applied to these gitmo detainees, because at the time of their conduct, the law was not in place. that is an important thing to see in judge kavanaugh's opinions, which is a recognition of the important role of the branches and of government and constraining individual action
7:47 pm
but also the importance of civil liberties and their own rights under the law and constitution of the united states. so what you see here is a judge who is a judge's judge. a judge who does not try to make it up as he goes along but interpret the law system with the text written by members of congress, the political branches. and the constitution as understood by the people who wrote it and as understood by those who expositors -- exposited it at that time. that is an important thing is we talk about the potential nomination of a judge to the supreme court. you want a judge who has a healthy respect for the role of each branch, including his or her own. that is the kind of judge you see in judge kavanaugh. we have an extensive record. 184,000 pages of material given to the judiciary committee. this idea that there is not enough paperwork or material and september 4, which is longer than any other modern judge or
7:48 pm
nominee has awaited confirmation is ridiculous. i'm hoping we will see a swift effort and rapid action on the floor. elizabeth: thank you. with that we will open it to questions. so please wait for the microphone. we have a microphone and identify yourself and keep it brief. >> thank you, panel. should i stand? elizabeth: sure. >> never mind, i will just sit. i'm a policy analyst for six point strategies. it is a consulting firm in dupont circle. my question concerns the obamacare case. some people such as judge napolitano and fox news says judge kavanaugh held up obamacare, which i don't think to be true. how would you explain that dissent and how would you explain his dissent in the 2014 or the 2015 obamacare case.
7:49 pm
elizabeth: who would like to take that? --uired a challenger to be penaltyuntil the tax have been assessed before challenging the constitutionality of the
7:50 pm
individual mandate tax penalty. judge kavanaugh had written extensively about the anti-injunction act in previous cases, including a case called cohen. there was a lot at stake. he interpreted the anti-injunction act to require that a challenge to the individual mandate penalty be delayed. i think that is a question that reasonable people can agree and disagree about. but, what i take from that is not just how did he decide that issue, but what do we learn about how he will decide all issues? i think the answer to that question is judge kavanaugh goes where the law leads. he goes where the text of the statute leads.
7:51 pm
justice kagan has said in a few speeches that in a world that has been shaped by justice scalia's textualism, that we are all textualists now to a degree. to the extent that there is a spectrum of how faithful a judge is going to be to text, as informed by structure and history and precedent. on that spectrum, i think judge kavanaugh is very much toward the side that sees the judge's role as a limited role. he used to tell us in chambers and in his separation of powers class that he taught when i was in law school, he would tell us every case is a separation of powers case. even when that claim is not raised. what he meant is that every case requires the judge to remember the proper limited role of the judiciary in our structure. that is the executive and
7:52 pm
legislative that make policy and it is the judge's role not to invent law, but to simply apply the law. those are a few thoughts. >> i would say, my co-blogger has a blog post on the first case there. quite frankly, he has had this itch for the anti-injunction act. i don't agree with him. that is a reasonable position -- i think it's wrong. if you read an article that i cannot -- i think it was motivated in part by judge kavanaugh's opinion there. he is just wrong. he's reading the statute, he didn't uphold obamacare. he didn't answer the question. reasonable people can disagree about that. i think the first on the regulation journal blog was good
7:53 pm
on that. i don't know much about the origination clause. >> the one thing i would say about this is, we as conservatives talk a lot about the importance of judges in adhering to text. but when we don't like that, we revolt. did this ort person that. the truth is, as conservatives we should be looking at the methodology of the judge and the role of the judge. you want a judge who understands that he or she wears a rope, not a cape. sometimes that means decisions don't come out the way we as conservatives might not like. that is good. that's the job of a judge. a good judge doesn't come out the way they want all the time. that is a willful judge. you don't want a willful judge. you don't want a willful justice. that is not good for democracy. that is not what our constitution intended, and it is not what you want for a nominee
7:54 pm
to the federal bench whether it is the appellate level or supreme court. justin: can i add something i forgot? i don't want to be accused of being inconsistent. on the question of the constitutionality of the institutional mandate, judge kavanaugh say it may be unprecedented and there may be a problem with it not having a limiting principle. if you look at the roadmap the supreme court followed in singing the commerce clause did not authorize that mandate, it was similar to those two things that judge kavanaugh struck. i just want to make sure that i'm not accused of inconsistency. elizabeth: other questions? >> deputy director of the center -- legal center here at the heritage. let's say you walk up the front door and mr. and mr. average american are walking by and they ask you the question that is the title of the event today.
7:55 pm
what kind of judge is judge kavanaugh? being professors, you want to spend the afternoon with them, but you only have a sentence or two. how would you answer that question to the layman in a brief way? jennifer: i would say judge kavanaugh is an independent, fair-minded judge who is looking to apply the text and statutes of the constitution with the context and relevant history and precedent that there is. case by case, looking fairly at the issues. >> judge kavanaugh's jurisprudence is motivated by separation of powers. he wants to make sure that congress is doing its job. that the president does his or her job, and the federal agencies are following the commands of both. you see that really strongly. i love the idea that you see separation of powers in every single case. why does he care we follow the statute? because congress makes the law.
7:56 pm
are there reasonable disagreements? sure. he is the type of judge that will look at a law and apply it neutrally and fairly that is most like in a way that congress -- aligned in a way congress intended. >> i think we have time for one more question? >> on quotes on judges, conservatives have become disconnected from the average american. control or benefit of attorneys or those with natural means. what effect do you think george kavanaugh -- ujudge kavanaugh would have as a supreme court
7:57 pm
justice to improve this issue, this disconnecting with society, atbe somewhat eliminated or -- more and more judges and everything are becoming specialized at the same time everyone is supposed to know the law. >> first of all, with judge kavanaugh's understanding of the role of the branches and judges being a umpire of the law. that leads to the elected branches, your member of congress, president, reaching a greater number of decisions. of itselfat in and helps with the common person. the average person can see and
7:58 pm
talk to more readily their elected representatives. if that person is making a decision, that keeps things real a little more. in his role as a judge deciding practical cases, judge kavanaugh is interested in the craft of writing, to the extent that he thatiting in a clear way for sure he would want the average member of the public to understand opinions, writing in shorter sentence structures, clearly explaining ideas. even in that way, trying to make sure the decision is being reached is something i think is and we areible not hiding behind big ideas, but the judge explaining his or her own reasoning. >> i think there are judges that are disconnected from the public, but judge kavanaugh is
7:59 pm
not one. i would recommend a washington post article wh reviewso the local bartender of judge kavanaugh. he said, oh, he has been coming in four years. i did not know she was a judge. -- for years. i did not know he was a judge. i did not know he was a lawyer. >guido he is the coach of his daughter's basketball team. we had a meeting we had to push back because he had been up too late the night before watching postgame coverage on a national's game. he is a brilliant jurist, but also a humble down-to-earth dad and friends and mentor. >> please join me in thanking our panelists. >> [applause]
8:00 pm
>> you can watch that live in the morning at 9:15 eastern time on c-span2. later in the day, president trouble on her officials from the agencies that handle customs and border protection. live at 1:30 p.m. eastern, also on our companion network c-span2. >> sunday 98 quote -- 8:00 eastern, historian john furling talks about his book, apostles of revolution, jefferson payne monro and the struggle against the old order in america and europe. >> if they could come back and see theica today, and most important play on broadway
8:01 pm
now and for the past several hiss is a play that lionize alexander hamilton and vilifies jefferson and ignores pain -- pa yne, and to the maldistribution of wealth in the united states and the amount of money that refute -- diffuses american politics today, they would see or fear that many of these things that are going on in the united states today bore an uncanny resemblance to the england that they had revolted against. >> sunday night at 8:00 eastern on c-span's q&a. leadersan-american lgbt participated in a town hall gathering called the state of a gb to people of color in america part of the naacp annual convention in san antonio texas. this is 2.5 hours.


info Stream Only

Uploaded by TV Archive on