CD182: Justice Kavanaugh

It's done. Brett Kavanaugh is a Supreme Court Justice. Most of the media coverage of his confirmation centered on the sexual assault allegations made by Dr. Christine Blasey Ford but that's only one part of the story. In this episode, learn about the procedural tricks employed by Senate Republicans and the George W. Bush administration to place Kavanaugh on the Supreme Court and hear highlights from over 40 hours of Brett Kavanaugh's policy-oriented confirmation hearings that most of the country didn't see.

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Recommended Congressional Dish Episodes

• CD117: Authorization for Limitless War

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Additional Reading

• Blog: Why the ACLU opposes Brett Kavanaugh's nomination to the supreme court by Susan N. Herman, ACLU, October 3, 2018.

• Article: California professor, writer of confidential Brett Kavanaugh letter, speaks out about her allegation of sexual assault by Emma Brown, The Washington Post, September 16, 2018.

• Records: Records, papers, decisions: Kavanaugh records and the Presidential Records Act, related author Meghan M. Stuessy, FAS.org, August 27, 2018.

• Report: ACLU report on Judge Brett M. Kavanaugh, ACLU, August 15, 2018.

• Article: Brett Kavanaugh ruled Consumer Financial Protection Bureau structurally unconstitutional by Manuela Tobias, Politifact, July 25, 2018.

• Article: There's no conspiracy between Trump and Kennedy. There's just the swamp by David Litt, The Washington Post, July 3, 2018.

• Article: Donald Trump made Justice Kennedy an offer he couldn't refuse by Abigail Tracy, Vanity Fair, June 29, 2018.

• Article: Inside the White House's quiet campaign to create a Supreme Court opening by Adam Liptak and Maggie Haberman, The New York Times, June 28, 2018.

• Article: Here's what is known about the surprising choice to lead the CFPB by Francine McKenna, Market Watch, June 18, 2018.

• Article: The clock is running out on Mick Mulvaney by Renae Merle, The Washington Post, June 12, 2018.

• Article: Official cause of death for Antonin Scalia released by David Warren, Dallas News, February 2016.

• Article: George W. Bush's bizarre bathroom self-portraits laid bare by audacious hack by Sam Byford, The Verge, February 8, 2013.

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Resources

• Case Information: Carpenter v. United States

• Executive Order: Further Implementation of the Presidential Records Act

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Sound Clip Sources

Hearing: 2004 Kavanaugh Judicial Nomination Hearing, Senate Judiciary Committee, April 27, 2004.

Witness:

• Brett Kavanaugh

Sound Clips:

• 1:14:14 Senator Jeff Sessions (AL): Judges, if you’re confirmed, are not accountable to the public. You never stand for election again. You hold your office for life. Many of your decisions are unreviewable ultimately, and it leaves the American people subject to decisions in an anti-democratic forum unless that judge restrains him or herself and enforces the law as written or the Constitution as declared by the people of the United States.

• 1:24:15 Senator Patrick Leahy (VT): The question is secrecy in government, and this administration has shown more secrecy than any administration I’ve served with, from the Ford administration forward. You were the author, one of the first indicators of this increase in secrecy, Executive Order 13233, that drastically changed the Presidential Records Act. It gave former presidents, their representatives, and even the incumbent president, virtual veto power over what records of theirs would be released, posed a higher burden on researchers petitioning for access to what had been releasable papers in the past. After the order was issued, a number of historians, public interest organizations, opposed the change. The Republican-led House Committee on Government Reform approved a bill to reverse this. A lawsuit to overturn it was filed by Public Citizen, American Historical Association, Organization of American Historians, and a number of others. Why did you favor an increase in the secrecy of presidential records? Brett Kavanaugh: Senator, with respect to President Bush's Executive Order, I think I want to clarify how you described it. It was an order that merely set forth the procedures for assertion of privilege by a former president, and let me explain what that means. The Supreme Court of the United States in Nixon v. GSA in 1977, opinion by Justice Brennan, had concluded that a former president still maintains a privilege over his records, even after he leaves office. This was somewhat unusual because there was an argument in the case that those are government records. But the Court concluded that both the current president and the former president have the right to assert privilege to prevent the release of presidential records. That’s obviously a complicated situation. The issue was coming to a head for the first time because there’s a 12-year period of repose, so 12 years after President Reagan left office was when this President Bush came into office, and there was a need to establish procedures. How’s this going to work, two different presidents asserting privilege or having the right to review? No one really had a good idea how this was going to work. The goal of the Order was merely to set forth procedures. It specifically says in Section 9 of the Order that it’s not designed in any way to suggest whether a former president or a current president should or should not assert privilege over his records. You’re quite right, Senator Leahy, that there was initial concern by historians about the Order. I think it was—I like to think it was based on a misunderstanding, and Judge Gonzales and I undertook to meet every 6 months or so with a large group of historians, first to discuss the Order and explain it, and then after that, to discuss any problems they were having with the Order, and to help improve it, if they suggested ways for improvement. I think those meetings, I think the historians who’ve come to see us, have found them useful, and I think we helped to explain what we had in mind and what the president's Order meant in terms of the procedure. So, that’s my explanation of that Order.

Hearing: 2006 Kavanaugh Judicial Nomination Hearing, Senate Judiciary Committee, May 9, 2006.

Witness:

• Brett Kavanaugh

Sound Clips:

• 58:44 Senator Orrin Hatch (UT): I also want to acknowledge the presence of Mr. Kavanaugh’s parents. I’ve known them for a long time. Ed Kavanaugh, for many years, he headed up the major trade association, the Cosmetic, Toiletries, and Fragrance Association, and he is deservedly admired by many in this town. And his mother served with distinction as a state court judge in Maryland for many, many years.

• 1:47:15 Senator John Cornyn (TX): Of course, as you know, I met you a number of years ago when I was Attorney General of Texas and had the honor to represent my state in an argument before the United States Supreme Court, and that was Santa Fe Independent School District v. Doe, which involved a question of whether school children could voluntarily offer a prayer or an inspirational saying before school football games in Texas. And as you know, the Court ultimately ruled against that voluntary student prayer in the case. And Chief Justice Rehnquist, in dissent, said that the Court's ruling exhibited hostility to all things religious in public life. And I’m very concerned about that because I do believe that the founders thought that the posture of the government with regard to religious expression should be one of neutrality, not hostility. I realize as a lower court judge you’re going to be bound by the Supreme Court's precedents, but I wonder if you would address the issue of religious liberty and religious speech insofar as how you believe in your position as a circuit court judge, how you would approach those issues. Brett Kavanaugh: Senator, if I were confirmed to be a D.C. Circuit judge, I would of course follow the precedent of the Santa Fe case. That case addressed a question that had been left open in the Lee v. Weisman case in 1992. In that case, there was a school-sponsored prayer at a graduation ceremony where the government was actually involved, and one of the questions that was left open was, what happens if a student or a private speaker participates in a school event as a private speaker? And in the Santa Fe case, I think the Court concluded, based on the facts and circumstances of the case, that it could be attributed to the school and so was a violation of the Establishment Clause. I think the overall area represents a tension the Supreme Court has attempted to resolve throughout the years in terms of facilitating the free exercise of religion without crossing the Establishment Clause lines that the Court has set out for many years now. I know that the Court in recent years has made clear in a number of cases that private religious speech, religious people, religious organizations cannot be, or should not be, discriminated against and that treating religious speech, religious people, religious organizations equally—in other words, on a level playing field with nonreligious organizations—is not a violation of the Establishment Clause. In past years there had been some suggestion that treating religious organizations the same way in the public square as nonreligious organizations could sometimes be a violation of the Establishment Clause. I think the Court's really gone to a principle of equality of treatment does not ordinarily violate the Establishment Clause—again, equality of treatment of religious speech, religious people, religious organizations; equality in the public square. That's been something we've seen over the last, I'd say, decade or a little more.

• 2:04:00 Former Senator Sam Brownback (KS): But just give me your view of the Constitution as a document itself. Is this a—can you put yourself in a category? Do you have a view that it’s established as a living document, as a strict constructionist of the Constitution itself? Brett Kavanaugh: Senator, I believe very much in interpreting text as it’s written and not seeking to impose one's own personal policy preferences into the text of the document. I believe very much in judicial restraint, recognizing the primary policymaking role of the legislative branch in our constitutional democracy. I believe very much, as a prospective inferior court judge, were I to be confirmed, in following the Supreme Court precedent strictly and absolutely. Once as a lower court judge, I think that’s very important for the stability of our three-level system for lower courts to faithfully follow Supreme Court precedent, and so that’s something that I think’s very important. In terms of the independence of the judiciary, I think that’s something that’s the hallmark of our judiciary, the hallmark of our system, that judges are independent from the legislative branch and independent from the executive branch. I think that’s central to my understanding of the proper judicial role.

Hearing: 2018 Day 1 Part 1 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 4, 2018.

• 12:55 Senator Chuck Grassley (IA): Good morning. I welcome everyone to this confirmation hearing on the nomination of— Senator Kamala Harris (CA): Mr. Chairman? Sen. Grassley: —Brett Kavanaugh— Sen. Harris: Mr. Chairman? Sen. Grassley: —to serve as Associate Justice— Sen. Harris: Mr. Chairman, I’d like to be recognized for a question before we proceed? Unknown Speaker: Regular order, Mr. Chairman. Sen. Grassley: —of the Supreme Court of the United States. Sen. Harris: Mr. Chairman, I’d like to be recognized to ask a question before we proceed. The committee received just last night, less than 15 hours ago— Unknown Speaker: Mr. Chairman, regular order. Sen. Harris: —42,000 pages of documents that we have not had an opportunity to review or read or analyze. Sen. Grassley: You’re out of order. I’ll proceed. Sen. Harris: We cannot possibly move forward, Mr. Chairman, of this hearing. Sen. Grassley: I extend a very warm welcome to Judge Kavanaugh— Sen. Harris: We have not been given an opportunity to have a— Sen. Grassley: —to his wife, Ashley— Sen. Harris: —meaningful hearing on the nominee. Sen. Grassley: —his two daughters, their extended family and friends— Senator Mazie Hirono (HI): Mr. Chairman, I agree with my colleague, Senator Harris. Mr. Chairman— Sen. Grassley: —Judge Kavanaugh’s many law clerks— Sen. Hirono: —we received 42,000 documents that we haven’t been able— Sen. Grassley: —and everyone else joining us today. Sen. Hirono: —to review last night, and we believe this hearing should be postponed. Sen. Grassley: I know this is an exciting day for all of you here, and you’re rightly proud of the judge. Senator Richard Blumenthal (CT): Mr. Chairman, if we cannot be recognized, I move to adjourn. Sen. Grassley: The American people— Sen. Blumenthal: Mr. Chairman, I move to adjourn. Sen. Grassley: —get to hear directly from Judge Kavanaugh later this afternoon. Sen. Blumenthal: Mr. Chairman, I move to adjourn. Mr. Chairman, we have been denied—we have been denied real access to the documents we need to advise— Unknown Speaker: Mr. Chairman, regular order is called for. Sen. Blumenthal: —which turns this hearing into a charade and a mockery of our norms. Sen. Grassley: Well— Sen. Blumenthal: And Mr. Chairman, I, therefore, move to adjourn this hearing. Sen. Grassley: Okay. Protester: This is a mockery and a travesty of justice. This is a travesty of justice, and we’ll not go back. Cancel Brett Kavanaugh. Adjourn the hearing. Leave me alone. Leave me alone. Unknown Speaker: _______(02:07—What do we have to do? Trump? We may have to work with Trump. In a demonstrative adjourn, we have to have—) Unknown Speaker: We’re not in an executive session. Sen. Blumenthal: Mr. Chairman, I ask for a roll-call vote on my motion to adjourn.

• 18:40 Senator Mazie Hirono (HI): Mr. Chairman, it is also— Senator Chuck Grassley (IA): I think that I— Sen. Hirono: Mr. Chairman, it is also not regular order for the majority— Sen. Grassley: Senator Hirono— Sen. Hirono: —to require the minority to pre-clear our questions, our documents and the videos we would like to use at this hearing. That is unprecedented. That is not regular order. Since when do we have to submit the questions and the process that we wish to follow to question this nominee? Sen. Grassley: Senator— Sen. Hirono: I’d like your clarification. Sen. Grassley: Senator Hirono— Sen. Hirono: I’d like your response on why you are requesting— Sen. Grassley: —I would ask that you— Sen. Hirono: — ____(00:30) order to submit our questions, too. Sen. Grassley: —I ask that you stop so we can conduct this hearing the way we have planned it. Maybe it isn’t going exactly the way that the minority would like to have it go— Protester: [unclear] Sen. Grassley: —but we have said for a long period of time that we were going to proceed on this very day, and I think we ought to give the American people the opportunity to hear whether Judge Kavanaugh should be on the Supreme Court or not. And you have heard my side of the aisle call for a regular order, and I think we ought to proceed in regular order. There will be plenty of opportunities to respond to the questions that the minority is— Protester 2: We didn’t vote for Judge Kavanaugh. [unclear] Sen. Grassley: —legitimately raising. Unknown Speaker: Get her thrown out of here, my god. Protester 3: [unclear] Sen. Grassley: And we will proceed accordingly. Unknown Speaker: What did she say? Senator Sheldon Whitehouse (RI): Mr. Chairman, under regular order, may I ask a point of order, which is that we are now presented with a situation in which somebody has decided that there are 100,000 documents protected by executive privilege, yet there has not been an assertion of executive privilege before the committee. How are we to determine whether executive privilege has been properly asserted— Protester 4: [unclear] Sen. Whitehouse: —if this hearing goes by without the committee ever considering that question? Why is it not in regular order for us to determine before the hearing at which the documents would be necessary whether or not the assertion of privilege that prevents us from getting those documents is legitimate or indeed is even an actual assertion of executive privilege? I do not understand why that is not a legitimate point of order at this point, because at the end of this hearing, it is too late to consider it. Senator Patrick Leahy (VT): Mr. Chairman, if I might add to this, on the integrity of the documents we’ve received, there really is no integrity. They have alterations, they have oddities, attachments are missing, emails are cut off halfway through a chain, recipient’s names are missing—many are of interest to this committee, but it’s cut off. The National Archives hasn’t had a chance to get us all that we want, even though you said on your website the National Archives would act as a check against any political interference. But— Protester 5: [unclear] Sen. Leahy: —I’d check after the hearing is over, there’s no check, I think we ought to at least have the National Archives finish it, and to have for the first time, certainly in my 44 years here, to have somebody say there’s a claim of executive privilege when the president hasn’t made such a claim, just puts everything under doubt. What are we trying to hide? Why are we rushing?

Hearing: 2018 Day 1 Part 2 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 4, 2018.

Hearing: 2018 Day 2 Part 1 Kavanaugh Confirmation Hearing, Senate Judiciary Committee, September 5, 2018.

Witness:

• Brett Kavanaugh

Sound Clips:

• 53:00 Senator Dianne Feinstein (CA): What would you say your position today is on a woman’s right to choose? Brett Kavanaugh: Well, as a judge— Sen. Feinstein: As a judge. Kavanaugh: As a judge, it is an important precedent of the Supreme Court—by “it,” I mean Roe v. Wade and Planned Parenthood v. Casey—and reaffirm many times Casey is precedent on precedent, which itself is an important factor to remember, and I understand the significance of the issue, the jurisprudential issue, and I understand the significance, as best I can, I always try and I do hear, of the real-world effects of that decision, as I try to do of all the decisions of my court and of the Supreme Court.

• 1:02:35* Brett Kavanaugh: I can tell you about the U.S. v. Nixon precedent, and I did about Chief Justice Burger’s role in forging a unanimous opinion—and, really, all the justices worked together on that—but Chief Justice Burger, who had been appointed by President Nixon—appointed by President Nixon—writes the opinion in U.S. v. Nixon, 8-0—Rehnquist was recused—8-0, ordering President Nixon to disclose the tapes in response to a criminal trial subpoena. A moment-of-crisis argument, I think July 8, 1974. They decided two weeks later a really important opinion, a moment of judicial independence, important precedent of the Supreme Court.

• 1:09:49 Senator Orrin Hatch (UT): I’d like to turn now to your work in the Bush administration. As you know, my Democratic colleagues are demanding to see every, every piece of paper or every single scrap of paper you ever touched during your six years in the Bush administration, in part because they want to know what role, if any, you played in developing the Bush administration’s interrogation policies. Well, six years ago, Ranking Member Feinstein, who was then the chairman of the Senate Intelligence Committee, and a good one at that, issued a lengthy report on the CIA’s detention and interrogation program under President Bush. The report detailed the origins, development, and implementation of the program. In 2014 a declassified version of that report was released to the public. The declassified version, or report, runs well over 500 pages, and your name appears nowhere in it. Now, I, myself, spent over 20 years on the Intelligence Committee. I know the quality of its staff and the work that they do, and I know the ranking member and how diligent she is. If you had played a role in the Bush administration’s interrogation policies, I think the ranking member would have discovered it. Numerous administration lawyers appear in the report, but not you. And that should tell us something. With that said, Judge Kavanaugh, I want to ask you for the record: what role, if any, did you play in developing or implementing the Bush administration’s detention and interrogation policies? Brett Kavanaugh: Well, the policies that are reflected and described in Senator Feinstein’s extensive, thorough report were very controversial, as you know, Senator—the enhanced interrogation techniques— Sen. Hatch: Right, right. Kavanaugh: —and the legal memos that were involved in justifying some of those techniques also were very controversial when they were disclosed in 2004. And I was not involved. I was not read into that program, not involved in crafting that program nor crafting the legal justifications for that program. In addition to Senator Feinstein’s report, the Justice Department did a lengthy Office of Professional Responsibility report about the legal memos that had been involved to justify some of those programs. My name’s not in that report, Senator, because I was not read into that program and not involved. There were a number of lawyers—and this came up at my last hearing—a number of lawyers who were involved, including a couple who were then judicial nominees. At my last hearing, I recall Senator Durbin asking about whether I also was likewise involved as these other judicial nominees had been, and the answer was no, and that answer was accurate, and that answer’s been shown to be accurate by the Office of Professional Responsibility report, by Senator Feinstein’s thorough report.

• 2:37:49 Senator Lindsey Graham (SC): So when somebody says post-9/11, that we’ve been at war, and it’s called the War on Terrorism, do you generally agree with that concept? Brett Kavanaugh: I do, Senator, because Congress passed the Authorization for Use of Military Force, which is still in effect. And that was passed, of course, on September 14, 2001, three days later. Sen. Graham: Let’s talk about the law and war. Is there a body of law called the law of armed conflict? Kavanaugh: There is such a body, Senator. Sen. Graham: Is there a body of law that’s called the basic criminal law? Kavanaugh: Yes, Senator. Sen. Graham: Are there differences between those two bodies of law? Kavanaugh: Yes, Senator. Sen. Graham: From an American citizen’s point of view, do your constitutional rights follow you? If you’re in Paris, does the Fourth Amendment protect you as an American from your own government? Kavanaugh: From your own government, yes. Sen. Graham: Okay. So, if you’re in Afghanistan, do your constitutional rights protect you against your own government? Kavanaugh: If you’re an American in Afghanistan, you have constitutional rights as against the U.S. government. Sen. Graham: Is there a longstanding— Kavanaugh: That’s long-settled law. Sen. Graham: Isn’t there also a long-settled law that—it goes back to Eisentrager case—I can’t remember the name of it— Kavanaugh: Yeah, Johnson v. Eisentrager. Sen. Graham: Right. —that American citizens who collaborate with the enemy have considered enemy combatants? Kavanaugh: They can be. Sen. Graham: Can be. Kavanaugh: They can be. They’re often—they’re sometimes criminally prosecuted, sometimes treated in the military sense. Sen. Graham: Well, let’s talk about “can be.” I think the— Kavanaugh: Under Supreme Court precedent— Sen. Graham: Right. Kavanaugh: —just want to make….yeah. Sen. Graham: There’s a Supreme Court decision that said that American citizens who collaborated with Nazi saboteurs were tried by the military. Is that correct? Kavanaugh: That is correct. Sen. Graham: I think a couple of them were executed. Kavanaugh: Yeah. Sen. Graham: So if anybody doubts, there’s a longstanding history in this country that your constitutional rights follow you wherever you go, but you don’t have a constitutional right to turn on your own government, collaborate with the enemy of the nation. You’ll be treated differently. What’s the name of the case, if you can recall, that reaffirmed the concept that you could hold one of our own as an enemy combatant if they were engaged in terrorist activities in Afghanistan? Are you familiar with that case? Kavanaugh: Yeah. Hamdi. Sen. Graham: Okay. So the bottom line is I want every American citizen to know you have constitutional rights, but you do not have a constitutional right to collaborate with the enemy. There's a body of law well developed long before 9/11 that understood the difference between basic criminal law and the law of armed conflict. Do you understand those differences? Kavanaugh: I do understand that there’re different bodies of law, of course, Senator.

Hearing: 2018 Day 2 Part 2 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 5, 2018.

Witness:

• Brett Kavanaugh

Hearing: 2018 Day 2 Part 3 Kavanaugh Confirmation Hearing, Senate Judiciary Committee, September 5, 2018.

Witness:

• Brett Kavanaugh

Sound Clips:

• 25:10 Brett Kavanaugh: My case, I upheld, importantly I upheld limits on contributions in the RNC case and in the Bluman case, and the Supreme Court has upheld contribution limits generally but struck them down when they’re too low in cases like Randall v. Sorrell, and McCutcheon.

• 54:45 Brett Kavanaugh: The religious tradition reflected in the First Amendment is a foundational part of American liberty, and it’s important for us as judges to recognize that and not—and recognize too that, as with speech, unpopular religions are protected. Our job—we can, under the Religious Freedom Restoration Act, question their sincerity of a religious belief, meaning, is someone lying or not about it? But we can’t question the reasonableness of it, and so the Supreme Court has cases with all sorts of religious beliefs protected—Justice Brennan really the architect of that. So religious liberty is critical to the First Amendment and the American Constitution.

• 1:50:00 Brett Kavanaugh: All the significant wars in U.S. history have been congressionally authorized, with one major exception—the Korean War. And the Korean War is an anomaly in many respects, and I think some of—the fact that it was undeclared and unauthorized really did lead to the Youngstown decision. But, you know, Vietnam, the Persian Gulf War, the AUMF against al Qaeda, the 2003 Iraq War, and then going back, World War II, World War I, the War of 1812—they’re all congressionally authorized. You can go back throughout, and I specify that. And so the war power, the power to take the nation into war, at least a significant one—and there’s some questions about short-term air strikes and things like that—but a significant war, that’s the biggest of all, and that’s something that Hamilton talked about in ’69 and that our historical practice, I think, is actually lived up to. I don’t mean to footnote Korea—that’s an enormous exception—but since then, they’ve all been congressionally authorized.

• 1:56:30 Senator Ben Sasse (NE): And one of the reasons that the executive branch seems so powerful right now is, again, because of how weak the legislature is. I mean, it’s a fundamental part of why we have the term “president.” In the 1780s, this wasn’t a very common term in the English language. “President” was just a nounified form of the name “presiding officer,” and we made it up, our founders made it up so that we wouldn’t have a term that sounded a lot like a king. And so we wanted to be sure that the term “presiding officer” sounded pretty boring and administrative, because the legislative, the policymaking powers were supposed to sit in this body, and the Article Two branch is supposed to preside over and execute the laws that have been passed. It’s not supposed to be the locus of all policymaking in America, but one of the reasons we have some of these problems with so many of these executive agencies is because Congress regularly doesn’t finish its work, punch those powers to Article Two, and then it’s not clear who exactly can execute all those authorities. And so we end up with this debate about the unitary executive, and you had a different term for it, but unpack for us a little bit why you have a different view about both the prudence and the constitutionality of one-person-headed independent executive agencies or pseudo-independent agencies versus commission-structure-headed independent agencies. Brett Kavanaugh: The traditional independent agencies that were upheld by the Supreme Court in Humphrey’s Executor in 1935 are multi-member independent agencies. And so usually sometimes three, five, occasionally more, but they’re multi-member independent agencies, and that’s been all the way through. And then the—for the significant independent agencies—the CFPB—and I had no—it’s not my role to question the policy or to question the creation of the new agency. In fact, I think it was designed for efficiency and centralization of certain overlapping authorities. It’s not my role to question that policy. Someone challenged the fact that it was headed, for the first time on something like this, by a single person. And a couple things, then, I wrote about in my dissent in that case—I’ll just repeat what I wrote in the dissent—I said, “First of all, that’s a departure from historical practice of independent agencies, and that matters according to the Supreme Court.” They had a previous case involving the PCAOB, where they had different innovation there that the Supreme Court had struck down in part because of the novelty of it. So departure from historical practice matters because precedent always matters, including executive precedent. Then, diminution of presidential authority beyond the traditional independent agencies in this sense. With traditional independent agencies, when a new president comes in office, almost immediately the president has been given the authority to designate a new chair of the independent agencies, so when a new—when President Obama came in, was able to designate new chairs of the various independent agencies, and the chairs, of course, set the policy direction and control the agenda. That’s historically been the way. That does not happen with the CFPB. And finally, having a single person—just going back to liberty—who’s in charge, who’s not removable at will by anyone, not accountable to Congress, in charge of a huge agency is something that’s different and has an effect on individual liberty. So a single person can make these enormous decisions—rule makings, adjudications, and enforcement decisions, all of them—and from my perspective—I am just repeating what I wrote here. I’m not intending to go beyond what I wrote in that opinion that was an issue of concern. And I did put in a hypothetical because it seems abstract that—I think we’ll realize this issue with that agency or any other—when a president comes in to office and has to live for three, four years with a CFPB director appointed by the prior president. And then I think everyone’s going to realize—of a different party— Sen. Sasse: Right. Kavanaugh: — in particular—and then I think everyone’s going to realize, wow, that’s an odd structure. Now, maybe not, but that’s what I wrote in my opinion that that will seem very weird because that’s not what happens with all the traditional independent agencies. And so whenever any president leaves and has appointed in the last two years a CFPB director, the new president might campaign on consumer protection. Let’s imagine, okay, presidential campaigns on consumer protection and consumer issues and then comes into office and can’t actually appoint a new CFPB director for the whole term of his or her office, that’s going to seem, I think, quite odd structurally. At least, that’s what I said in my opinion.

Hearing: 2018 Day 2 Part 4 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 5, 2018.

Witness:

• Brett Kavanaugh

Sound Clips:

• 4:45 Senator Richard Blumenthal (CT): I want to talk about Jane Doe in Garza v. Hagen. As you know, she was a 17-year-old unaccompanied minor who came across this border, having escaped serious, threatening, horrific physical violence in her family, in her homeland. She braved horrific threats of rape and sexual exploitation as she crossed the border. She was eight weeks pregnant. Under Texas law, she received an order that entitled her to an abortion, and she also went through mandatory counseling, as required by Texas law. She was eligible for an abortion under that law. The Trump administration blocked her. The Office of Refugee Resettlement forced her to go to a crisis pregnancy center, where she was subjected to medically unnecessary procedures. She was punished by her continued requests to terminate her pregnancy by being isolated from the rest of the residents. She was also forced to notify her parents, which Texas law did not require. And the pregnancy, which was eight weeks, was four weeks further when you participated on a panel that upheld the Trump administration in blocking her efforts to terminate her pregnancy. The decision of that panel was overruled by a full court of the D.C. Circuit Court of Appeals. It reversed that panel, and the decision and opinion in that case commented “the flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling Supreme Court precedent.” And it said further, “The government’s insistence that it must not even stand back and permit abortion to go forward for someone in some form of custody is freakishly erratic.” In addition to being erratic, it also threatened her health because she was unable to terminate her pregnancy for weeks that further increased the risk of the procedure—one study said 38 percent every week her health was threatened. She was going through emotional turmoil. And yet, in your dissent, you would have further blocked and delayed that termination of pregnancy. All of what I said is correct, hence to the facts here, correct? Brett Kavanaugh: No, Senator. I respectfully disagree in various parts. My ruling, my position in the case would not have blocked— Sen. Blumenthal: It would have delayed it. And it would have set imperiously close to the 20-week limit under Texas law, correct? Kavanaugh: No. We were still several weeks away. I said several things that are important, I think. First— Sen. Blumenthal: Well, I want to go on because I can read your dissent, but I want to go to— Kavanaugh: Well, but you read several things, respectfully—first of all, I think the opinion was by one judge that you’re reading from that was not the opinion for the majority. Secondly, I was trying to follow precedent of the Supreme Court on parental consent, which allows some delays in the abortion procedure so as to fulfill the parental-consent requirements. I was reasoning by analogy from those. People can disagree, I understand, on whether we were following precedent, how to read that precedent, but I was trying to do so as faithfully as I could and explained that. I also did not join the separate opinion, the separate dissent, that said she had no right to attain an abortion. ____(04:29) I did not say that. And I also made clear that the government could not use this immigration-sponsor provision as a ruse to try to delay her abortion past, to your point, the time when it was safe.

• 21:15 Brett Kavanaugh: And I said, thirdly, that if the nine days or seven days expired, that the minor at that point—unless the government had some argument that had not unfolded yet that was persuasive, and since they hadn’t unfolded it yet, I’m not sure what that would have been—that the minor would have to be allowed to obtain the abortion at that time.

Hearing: 2018 Day 2 Part 5 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 5, 2018.

Hearing: 2018 Day 3 Part 1 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 6, 2018.

• 30:35 Senator Dianne Feinstein (CA): It’s my understanding that by agreement with private lawyer Bill Burke, the chairman has designated 190,000 pages of Kavanaugh’s records “committee confidential,” and by doing this, Republicans argue members can’t use these documents at the hearing or release them to the public. Unlike the Intelligence Committee—and I’ve been a member for about two decades—the judiciary committee doesn’t have any standing rules on how and when documents are designated “committee confidential.” Previously, the judiciary committee has made material confidential only through bipartisan agreement. That has not been done in this case. So this is without precedent. Republicans claim that Chairman Leahy accepted documents on a committee-confidential basis during the Kagan administration. It’s my understanding that those documents were processed through the National Archives, not private partisan lawyers, and Republicans agreed. Ninety-nine percent of Elena Kagan’s White House records were publicly available and could be used freely by any member. By contrast, the committee has only seven percent of Brett Kavanaugh’s White House records and only four percent of those are available to the public. No Senate or committee rule grants the chairman unilateral authority to designate documents “committee confidential.” So I have no idea how that stamp “committee confidential” got on these documents.

• 39:10 Senator John Cornyn (TX): Mr. Chairman, I’m looking at a Wall Street Journal article, back during the Elena Kagan nomination. It says, document production from Elena Kagan’s years in the Clinton White House counsel’s office was supervised by Bruce Lindsey, whose White House tenure overlapped with Ms. Kagan. Bill Clinton designated Mr. Lindsey to supervise records from his presidency in cooperation with the National Archives and Records Administration under the Presidential Records Act. So President Bush, by choosing Mr. Burke, is doing exactly what President Clinton did in choosing Bruce Lindsey for that same purpose.

• 1:51:22 Brett Kavanaugh: My religious beliefs have no relevance to my judging. I judge based on the Constitution and laws of the United States. I take an oath to do that, and for 12 years I’ve lived up to that oath. At the same time, of course, as you point out, I am religious, and I am a Catholic, and I grew up attending Catholic schools. And the Constitution of the United States foresaw that religious people or people who are not religious are all equally American. As I’ve said in one of my opinions, the Newdow opinion, no matter what religion you are or no religion at all, we’re all equally American, and the Constitution of the United States also says in Article Six, no religious tests shall ever be required as a qualification to any office or public trust under the United States. That was an important provision to have in the founding Constitution to ensure that there was not discrimination against people who had a religion or people who didn’t have a religion. It’s a foundation of our country. We’re all equally American.

Hearing: 2018 Day 3 Part 2 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 6, 2018.

• 22:30 Senator Mike Lee (UT): What you were asked about was whether or not you were involved in crafting the policies that would govern detention of enemy combatants. Is that right? Brett Kavanaugh: That’s correct. Sen. Lee: And that was a classified program, classified at a very high level, presumably compartmentalized such that you would have had to have been read into that program in order to participate in that process. Is that right? Kavanaugh: I believe that’s correct. Read in. I wasn’t necessarily using the formal sense of that, but what I meant is I was not a part of that program. Sen. Lee: Okay. But that is a binary issue. You were either involved in the development of that policy or you were not. Kavanaugh: That’s correct. Sen. Lee: And you were not. Kavanaugh: That’s correct. Sen. Lee: And Tim Flanigan, who was, I believe, at the time the White House counsel. Kavanaugh: He was the deputy counsel. Sen. Lee: The deputy counsel. Has confirmed that you were not involved in that. Kavanaugh: That’s correct. Sen. Lee: We have your word and the word of the then-deputy White House counsel. Then, there is a separate issue. Well, I guess one could argue a related issue, but a separate— Protesters: [unclear] Unknown Speaker: ____(01:17—I don’t know if it’s worth it, but he said something that got read into it. I don’t know whether people understand what it means.) Sen. Lee: I assume that won’t be counted against me, there. Unknown Speaker: It will be counted against you. Sen. Lee: Oh, okay. All right, well, I’ll have to speak more quickly then. When we talk about being read into, that is a colloquial term that we sometimes refer to. It’s government speak that talks about being cleared to discuss certain classified matters. In any event, you were not brought into the development of this policy. Kavanaugh: That’s correct. Sen. Lee: Secondly, there was a separate, arguable related, but a distinct issue involving a meeting where you were asked for your opinion about how Justice Kennedy might react to certain legal arguments that people in the administration were pushing. Is that right? Kavanaugh: That’s correct. Sen. Lee: And you answered that question. Kavanaugh: I said that indefinite detention of an American citizen without access to a lawyer, which at the time was what was happening in that particular case, would never fly with Justice Kennedy.

Hearing: 2018 Day 3 Part 3 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 6, 2018.

Hearing: 2018 Day 3 Part 4 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 6, 2018.

• 18:25 Senator Jeff Flake (AZ): Specifically, what impact does technology have on the Fourth and the First Amendments? Brett Kavanaugh: So I think the Carpenter case explains that once upon a time if a piece of information of yours ended up in the hands of a third party, and the government got a third party, that really wasn’t of any effect on your privacy. But now when all of our data is in the hands of a business, a third party, and the government obtains all your data, all your emails, all your tax, all your information, your financial transactions, your whole life is in the hands of a data company, and the government gets that, your privacy is very well affected. And that’s the importance, I think, of the Carpenter decision is that it recognizes that change in understanding of our understandings of privacy, and I think going forward, that’s going to be a critical issue.

• 1:27:10 Brett Kavanaugh: One of the things that we have to do as judges, as I’ve emphasized many times in this hearing, is maintain the independence of the federal judiciary, independence from politics, independence from political influence or public pressure or public influence. And part of that, part of the canons for federal judges, federal judiciary, is that we don’t attend political rallies, we’re not allowed to donate to political campaigns, support political candidates, put bumper stickers on our cars, signs in our yards. And one of the things I decided—we are allowed, technically, to vote, but one of the things I decided after I voted in the first election, and I read something about how the second Justice Harlan decided not to vote in elections because he thought that reinforced the independence that he felt as a judge. And I thought about that, and I decided to follow that lead. I’m not saying my approach is right, and other judges take a different approach on that, and I fully respect that. But for me it just felt more consistent for me, with the independence of the judiciary, not to vote, because I’ve always considered voting a sacred responsibility and one in which I think very deeply about the policies I’m supporting and the people I’m supporting, and that seemed almost as if I were taking policy views, at least to myself, into the voting booth, and I didn’t want to do that as a judge. So I decided to follow the lead of the second Justice Harlan. I’ll be the first to say I’m not the second Justice Harlan. He was a great justice on the Supreme Court and someone, of course, who I would be—if I were to be confirmed—honored to be on that Court and follow in his lead. Senator John Kennedy (LA): So you don’t vote in political elections. Kavanaugh: I do not vote in political elections. Sen. Kennedy: Interesting.

Hearing: 2018 Day 3 Part 5 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 6, 2018.

Hearing: 2018 Day 3 Part 6 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 6, 2018.

Hearing: 2018 Day 3 Part 7 Kavanaugh Judicial Confirmation Hearing, Senate Judiciary Committee, September 6, 2018.

Hearing: Supreme Court Nominee Brett Kavanaugh Sexual Assault Hearing, Professor Blasey Ford Testimony, Senate Judiciary Committee, September 27, 2018.

• 3:37 Dr. Christine Blasey Ford: When I got to the small gathering, people were drinking beer in a small living room/family room-type area on the first floor of the house. I drank one beer. Brett and Mark were visibly drunk. Early in the evening, I went up a very narrow set of stairs, leading from the living room to a second floor to use the restroom. When I got to the top of the stairs, I was pushed from behind, into a bedroom across from the bathroom. I couldn’t see who pushed me. Brett and Mark came into the bedroom and locked the door behind them. There was music playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room. I was pushed onto the bed, and Brett got on top of me. He began running his hands over my body and grinding into me. I yelled, hoping that someone downstairs might hear me. And I tried to get away from him, but his weight was heavy. Brett groped me and tried to take off my clothes. He had a hard time because he was very inebriated and because I was wearing a one-piece bathing suit underneath my clothing. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me. Both Brett and Mark were drunkenly laughing during the attack. They seemed to be having a very good time. Mark seemed ambivalent at times, urging Brett on, and at times telling him to stop. A couple of times I made eye contact with Mark and thought he might try to help me, but he did not. During this assault, Mark came over and jumped on the bed twice while Brett was on top of me. And the last time that he did this, we toppled over, and Brett was no longer on top of me. I was able to get up and run out of the room. Directly across from the bedroom was a small bathroom. I ran inside the bathroom and locked the door. I waited until I heard Brett and Mark leave the bedroom, laughing, and loudly walked down the narrow stairway, pinballing off the walls on the way down. I waited, and when I did not hear them come back up the stairs, I left the bathroom, went down the same stairwell, through the living room, and left the house. I remember being on the street and feeling this enormous sense of relief that I escaped that house and that Brett and Mark were not coming outside after me.

Hearing: Supreme Court Nominee Brett Kavanaugh Sexual Assault Hearing, Professor Blasey Ford Testimony, Senate Judiciary Committee, September 27, 2018.

• 1:22:10 Senator Dick Durbin (IL): Dr. Ford, with what degree of certainty do you believe Brett Kavanaugh assaulted you? Dr. Christine Blasey Ford: 100 percent.

Hearing: Supreme Court Nominee Brett Kavanaugh Sexual Assault Hearing, Judge Kavanaugh Testimony, Senate Judiciary Committee, September 27, 2018.

• 10:04 Brett Kavanaugh: This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups. This is a circus.

• 18:04 Brett Kavanaugh: From 2001 to 2006 I worked for President George W. Bush in the White House. As staff secretary, I was by President Bush’s side for three years and was entrusted with the nation’s most sensitive secrets. I travelled on Air Force One all over the country and the world with President Bush. I went everywhere with him, from Texas to Pakistan, from Alaska to Australia, from Buckingham Palace to the Vatican. Three years in the West Wing, five and a half years in the White House.

• 2:57:20 Senator John Kennedy (LA): None of these allegations are true. Brett Kavanaugh: Correct. Sen. Kennedy: No doubt in your mind. Kavanaugh: Zero. I’m 100 percent certain. Sen. Kennedy: Not even a scintilla. Kavanaugh: Not a scintilla. One hundred percent certain, Senator. Sen. Kennedy: Do you swear to God? Kavanaugh: I swear to God.

Meeting: Meeting on Brett Kavanaugh Nomination, Senate Judiciary Committee, September 28, 2018.

• 4:12:55 Senator Jeff Flake (AZ): I have been speaking with a number of people on the other side. We’ve had conversations ongoing for a while with regard to making sure that we do due diligence here. And I think it would be proper to delay the floor vote for up to, but not more than, one week in order to let the FBI continue—to do an investigation, limited in time and scope to the current allegations that are there, and a limit in time to no more than one week. And I will vote to advance the bill to the floor, with that understanding.

 

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Music Presented in This Episode

Intro & Exit: Tired of Being Lied To by David Ippolito (found on Music Alley by mevio)