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tv   Heritage Examines Judge Kavanaughs Rulings  CSPAN  August 14, 2018 12:07pm-1:04pm EDT

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>> welcome to the heritage foundation. i am elizabeth, a legal fellow
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here. thank you for coming. on july 9, president donald trump nominated brett kavanaugh to become a justice on the supreme court. trump called kavanaugh eight judges judge and noted he is one of the finest legal minds of our time. d.c.s served on the surfeit -- circuit. he has written more than 300 opinions and demonstrated he is a judge that tries to observe the constitution and laws according to the text. the text of the law is the law and judges are not authorized to rewrite laws because they think they should be updated here at it has written extensively on and off the bench about separation of powers and statutory interpretation. 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 to discussed experts
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judge kavanaugh's most significant rulings in the areas of individual rights, administrative law, and national security. panelists, iet to will keep introductions brief. first up is justin walker, an assistant professor of law. gibsoniously served at here in washington. in addition to serving as a speech writer. he clerked for judge have not and anthony kennedy on the supreme court. i would be rigorous if i didn't mention that he and i are both graduates of the sacred heart in lavelle. next up is chris walker and associate professor of law at the ohio state university or he researches administrative law and regulation. he is a public number of the -- he served in
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the justice department in a variety of contexts hearing he clerked for judge alex kozinski. he has a ba from berger myung university and a master and public policy. then we will hear from jennifer, a assistant professor at the scully outlaw school. also a public member of the administrative conference of the united states. clerked for judge kavanaugh. i think she was the first law clerk he hired. also for justice clarence thomas on the supreme court. last but not least, we will hear where he runsffer the national security lock program.
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he served as the chief counsel counsel to the house intelligence community. he is a graduate of the ucla chicago law school and the naval war college at with that i will turn it over to justin. justin: thank you very much. --see all of you. i will talk about judge kavanaugh's opinions about individual rights. there is not enough time to go through all of them. he has been on the bench for 12 years, written 300 different opinions. hopefully you have watched enough cable news or read enough coverage to know that 13 of his opinions have been endorsed by the united states supreme court which i think suggests all the opinions are within the mainstream. -- all ofse opinions
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those 13 were endorsed not just by the most conservative members 's the court but by the court less conservative members. since there is not time to cover liberties, i will start with the first amendment theget all the way to second. [laughter] i want to highlight for judge kavanaugh's the second. opinion -- four of his opinions a religious liberty and a second amendment. speech, judge kavanaugh -- one of his more recent opinions concerned the obama administration's net neutrality law. the other panelists can speak more eloquently and in depth about the first part of that opinion, which concerned whether statute authorized
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the fcc to regulate the internet. i'll lethe date -- that pass. the second part of the opinion suggests a first amendment violation within the law. it is based on two opinions by the court. the court suggested that the federal government cannot commandeer a cable network -- cable provider and forced them to carry content unless there is a monopoly issue that would survive intermediate scrutiny. ae principle behind that is ,ewspaper does not have to be in ben franklin's word, a stagecoach for everyone. -- toant to create
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publish the wall street journal or new york times have some control over the content that gets published. cable providers sit in a similar situation according to turner one and turner to her we can debate whether or not those were correctly decided. on judge kavanaugh's, he was bound to apply them. he analogize his cable internet says,ers to them or it he " 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 "rivate editorial choices. that's the lesson of turner broadcasting and indeed it is the lesson of the entire history of first amendment income petition law. in this second opinion by judge
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kavanaugh, this one from earlier in his tenure called emily's we see him applying neutral principles in order to side with a political action group that is on the left side of politics. for those out there who worry weaponize inc. the first amendment in order to help 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 way in a case that , a liberaly's list group that supports abortion rights and female pro-choice candidates. shat he said there was the fec' regulation of these groups was invalid because they were constricting how much money they could stand -- could spend t
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o speak. regulations on donations directly to candidates, which can be regulated under buckley. he distinguished that from a nonprofit organization like emily's list, expenditures on advocacy and speech. this was before citizens united was decided. it suggested a principle that it is just not the governments job to tell people, we want to hear less from you. i will move from free speech to religion. new dell theled prayerthe challenge the and the use of undergrad in a presidential oath.
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judge kavanaugh's opinion i think is noteworthy for several reasons. against thates plaintiff, but he shows the kind of fair-minded thoughtfulness that one would hope a judge would show when a plaintiff is .ringing 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 area, as many of you probably as i registered eight the phrase as you know is eight 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.
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is it history and tradition? what type of coercion counts? once you decide on what kind of test to apply, it is not always a clear how that test should be applied. 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 supreme court's approach to the issue of -- he uses history and tradition rather than the coercion test or endorsement test. approach was vindicated several years later when the supreme court decided the town of grace. there was a prayer before the local government board and the an opinion written by justice kennedy for the five conservative majority said
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justice at judge kavanaugh had done. last issue i will mention before passing the microphone is the second amendment. in 2008, the supreme court keller had athe right to his handgun in home for self-defense. -4 majority. d.c. responded with a ban on semi automatic rifles. he sued again. it went to a circuit. thinking, ife been there are three republican appointees, his claim is -- there is reason for optimism for him. but 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
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guns here or dislikes to his policy preferences have no bearing on the question. 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 some kind of free wielding balance test when it comes to a fundamental right like the right to possess a weapon. was done forg test 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 or how narrowly tailored is the regulation in question, the question for the judge is is the regulation
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consistent with our history and tradition? and 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 allow the having of these weapons. for 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 of that governs how courts review the regulations. we live in and era today where most lawmaking is done by federal agencies and not congress or the courts. to provide an imperfect snapshot, if you look at the federal6 period,
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agencies promulgated over 60,000 pages in the federal register. congresse same period, passed 329 public laws, taking up 3000 pages in the statutes at large. we live in an era where lawmaking regulation predominates. sees exciting to me to president trump nominate someone from the d.c. circuit, which is by congressional design a court that it specializes in administrative law. -- not thee vast vast majority. but the preeminent administrative law court we have the united states. judge kavanaugh is one of the most sophisticated and creative jurists in the judiciary when it comes to administer the law. as an administrative law
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professor, this is a geek fest. areottom line is if you hoping for a deconstruction of the administrative state as will bennon said, you disappointed. it 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 "this isssor said, the end of the administrative law as we know it. it will never find a regulation define 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 you with administrative law. i can cover them all here. what we will not see a deconstruction of the administrative state, not to
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bury the lead but judge kavanaugh is someone who will reign in the administrative state or to a tighter leecash. i will sketch that out and two different contexts and the times that i have remaining to give you a sense of how he would do that. this is explained in much more blog i did scotus it. topicn deference is a hot . the doctrine was established in 1984. federal agencies, not courts were the very interpreters of ambiguous statutes. it shifts the law interpretive from courts to federal agencies. this at the time was part of a concerted movement.
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it was a key regulatory action. in recent years, there have been frequent criticism of chevron deference 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 per it was with justice gorsuch and i think it will be with judge kavanaugh as well. there are three different ways that judge kavanaugh would narrow chevron deference. , he's a lot like justice scalia he's a textual list. that matters under chevron statute isthe unambiguous, the agency doesn't get any deference. that is the first step of
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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, holding on eight harvard law review where he said some judges want to be 90% certain that a statute is unambiguous before they declare it unambiguous. i am probably closer to 60%. ,e will use the tools and say if it is fairly certain, i am not going to defer to the agency. it's quite similar to a opinion from the supreme court written by justin -- by justice gorsuch. that the standard should be clear enough. not crystal clear, but a clear enough standard. the first way you will see differ -- a justice
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perhaps from his former boss is, he is much more of a textual list. he will find statutes unambiguous which will lead to 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. this exception got a lot of the fanfare in the obamacare challenge that made it to the supreme court. roberts, writing for a six justice majority applied it and said, when it comes to statutory ambiguity said invoke eight 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
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expertise. but chief justice roberts found a way to win. 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 -- is a major political and economic question and congress has not spoken clearly. we will not defer to the agencies. we will decide this ourselves. i would explain -- he took it a step further and not only did you not get chevron deference, you would say you wouldn't even have the authority to regulate unless there were a clear statement to the contrary. the third, i won't spend as much
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time on it is fascinating. i would encourage you to go read he story lecture that delivered last fall that they 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 when there is an open ended ground of authority and not when it is a specific provision. is out ofing is political accountability. on the flipside, his idea that there is more -- that the judges can say what statutes mean but shouldn't be making policy decisions. as the chevron side. -- alongd of the day the same point, if you read justice kennedy's concurrence in perera where he can concerned chevron, they look a lot like judge kavanaugh.
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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. a hardavanaugh takes look review seriously. is most prominent decision one that led to michigan the epa decision of the supreme court where judge kavanaugh in dissent at the d.c. circuits that when the statute says necessary and appropriate, that means the epa must consider cost. the administrative procedure act ultimately a 5-4 majority endorsed it.
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but you get a reading that justice kavanaugh will look at agency decisions and ask that they consider all the statutory factors. did they consider counter and did they otherwise follow all the procedures required. if not, the agency cannot regulate. we will send it back. if so, the agency wins. record,ook at his agencies when, agencies lose. sometimes it's a liberal when wendy agency loses. sometimes it's a conservative when it. he is quite principal in applying the administrative procedure act. i will say, there have been a number of the environmental law that have worried about the future of the administrative state under the administrative procedure act. froml pull one quote professor michael livermore. deadlock,ressional
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this has become the primary vehicle for progress over the last several decades. replacing kennedy with kavanaugh will make this more difficult. holding and fretless risk. i agree with that. started,ack to where i congress is not legislating. agencies are using still statutes that have not been updated in decades. to make major decisions that affect our everyday lives and justice kavanaugh will not give that a free pass. if the statute doesn't allow the regulars -- the agency to regulate, he will not let them regulate. in that sense, i do think some bythese concerns raised administrative law and environmental law professors -- there is some foundation to them. one of us wouldn't those as concerned though. some of us would think that congress should legislate and if there is an issue of major
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political or economic significance, congress should take the lead and sate 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 searchingwill be more than justice kennedy. we will not see deconstruction of the administrative state. thanks to heritage for having this event. it is a great honor to be a former law clerk of judge kavanaugh. the process is a serious and weighty thing. i think it is great we are able to take a close look at his record. glad you all are here to talk about that. he hasin mentioned, quite an extensive record. more than 300 opinions. a number of which were adopted
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later by the supreme court and cited repeatedly by the supreme court. ofi will peel off a piece judge kavanaugh's jurisprudence with structural safeguards in the constitution to 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. 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 safeguards it is a 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 most complex branch with a but of layers.
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so judge kavanaugh has written quite a bit about what the executive's proper role is in being able to supervise that branch. these things come out 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 the playing the policy, carrying out policy. he has conceptualized the role of the judge as more of an umpire. judgeoesn't always mean a is not going to step in, but it means a judge should try to be independent, there minded and 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.
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but where there isn't a statutory limitation the judge is not supposed to inject policy and is to neutrally leave things to the branches. he has also written about the importance of the principles, not just to formalistic late apply the rules which would be good in and of itself. safeguardsely, these get back to individual liberties and individual rights. by federal power being divided among three branches, multiple actors have to agree before steps are taken. also on the side of the executive branch and having accountability for the president is the president is the only elected actor and the executive branch. a role inlic, we have bringing responsibility only to the extent that the president is over to able see -- able to oversee what is going on. i don't know if you have had a
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chance to read to the questionnaire but one of the questions he is asked are what -- 10 mostt 10 significant opinions. you can see the focus of his jurisprudence because the court on which he sits sees lots of agency cases. themes of separation of power. 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 it is a relatively junior judge at the time, in his second year on the bench is writing a dissent. he is already being independent and applying the laws as he's understands it even though in that case it put him at odds with his colleagues. batlso is right off the influential in the sense that to ,ears later, the supreme court in an opinion by chief justice roberts comes down on the side that judge kavanaugh had laid
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out in his opinion 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 his 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 secretary. at least under how the supreme court has interpreted the state of law. there are tenure protections. what happened in that case was act, another2 entity was created that was under the sec but had quite a lot of independent policy direction. the court was being asked to look at whether it was ok that
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there were also tenure protections for these word members. 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 the constitutional text. he looked at the history as well and the context and this eating a unique structure in our system where for decades there have been supreme court saying it is constitutional and has limitations. 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
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carrying out important decisions? opinionvanaugh brodie 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 so far has been appended with a similar opinion in ah versus cfpb dissenting opinion. judge kavanaugh talked about another unique agency structure, the head of the consumer financial protection bureau and whether it is constitutional or 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 sec and again raised questions about whether a president, who is elected can fully carry out the agenda that the public has
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elected the president to carry out if the president impacted in being able to supervise what is going on. judge kavanaugh carry that out again in another opinion dealing with a different issue in 2012. it 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. in that case the dispute was over -- the particular issue he was looking at in his opinion was whether the independent nuclear regulatory commission or the more direct way accountable to the president department of saygy would have the final on whether the administration was going to continue to apply to store waste there. spent time inh 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
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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. concurring opinion is remarkable for two additional reasons. samebecause it shows the chris is talking about, neutral application of principles and the idea of accountability regardless of what political party is in power and regardless of if it will be a pro agency or anti-ve -- pro or regulation. at some of that case it was president obama who was in power. if a president runs and is elected, 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. his approach that
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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 president 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, 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 long-standing precedent in that case. just quickly, touching on a couple more opinions that get a little more into regulation the themeving on with of neutral principles, the first
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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, which has enacted a statute is 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. there are 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 expansively interpreted its authority of greenhouse gases in its interpolation of greenhouse gases. the next year, a similar and the same up
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kind of statutory provisions and judge kavanaugh in the second opinion ended up writing an opinion that would have been quite broke regulation where he talked about the d.c. circuit judge had reached an interpretation different from his own in the prior case. the president needed to be adhered to and neutrally applied. in the 2013 case, the epa had more authority or responsibility to be permitting in the area -- requiring permits in the area of thoughtg than the epa had. you see a very much case-by-case regardless of whether it will come out on one policy side or the other. way that plays we is judge kavanaugh and will talk more about this in the area of national security but judge kavanaugh has abdicated and noted the role of congress
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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 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, judge kavanaugh's opinions particularly 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. but 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 be able to supervise
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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 roll. times in partnering with the executive in some of the foreign relations areas. judge kavanaugh is focused on those areas. will turn it to jamail. thanks to my panelists for coming to the heritage foundation and for having us. judged like to talk about kavanaugh's record in national security cases. am a so id myself 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. you take from judge kavanaugh's cases is a separation of powers. courtea that each of the
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and branches of government has a 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 eight tremendous number of powers assigned to the president and congress. on eight numerical basis alone, congress has more power if you count up the number of times the national security or foreign policy manager mentions 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 white 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
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the like. time, they 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 to 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 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, if the courts decide not to do anything into ticket off, they have moved in favor of the executive branch.
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the executive decision to act stands. no matter the congress thought to regulate that decision to it is important for judge kavanaugh for courts to play their role, which is at times policing the separation of powers and court andhat the political branches play the role they're supposed to. at the same time, what you see in judge kavanaugh's opinion is congresstion that when does act, congress also does not have unlimited authority. there are things congress might do to contravene the constitution. to the extent you are interpreting congressional action, interpreting to avoid retroactive activity. think thisyou would guy is a bush administration lawyer. he's going to be 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
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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 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 an recognition of the important role of the branches and of government and constraining individual action and 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 judges 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 expositor did it at that time. that is an important thing is we talk about the potential nomination -- or the nomination of a judge to the support -- to
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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 nominee has awaited confirmation is dick york. 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. havenk we have some -- we a microphone and identify yourself and keep it brief. thank you, panel. should i stand? elizabeth: sure. >> never mind parrot all just sit.
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i'm a policy analyst for six point strategies. concerns the obamacare case. some people said that judge kavanaugh upheld obamacare, which i don't think to be true. how would you explain that dissent and how would you explain his dissent in what he 5 obamacare case. elizabeth: who would like to take that? >> i think what you see in the is a case you mentioned judge who cares a lot about the words of the statute. and who does not care about passion or presages or any particular party or any
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particular policy outcome. the threshold question in that case was whether or not the challenger toed a the aca individual mandate to penalty hadhe tax been assessed before challenging the constitutionality of the individual mandate tax penalty. writtenvanaugh had extensively about the anti-injunction act in previous calledncluding a case cohen. he interpreted the anti-injunction act to require that the challenge to the individual mandate county be delayed.
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i think that reasonable people can agree and disagree about. that ist i take from not just how did he decide that issue, but what do we learn about how he will decide all issues? the answer to that question is judge kavanaugh goes where the law leads. he goes where the text of the statute leads. 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. judget spectrum, i think kavanaugh is very much toward the side that sees the judge's
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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. and is the executive legislative that make policy and the judge's role not to invent law, but to simply apply the law. those are a few thoughts. that's a very big topic. >> i would say, mike co. blogger has a blog post on the first case there. quite frankly, he has had this page for the anti-injunction act. i don't agree with him. i would consider it -- i don't consider it your reasonable but i think it's wrong.
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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 aaron's post has some good insight. 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 hearing -- adhering to text. but women don't like that, we revolt. no, i don't like this judge or this justice. 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
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that he or she wears a rope, not a cape. sometimes that means decisions don't come out as we as conservatives might not like. that is good. that's the job of a judge. a good judge doesn't come up 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 to the federal bench whether it is the appellate level for supreme court. justin: can i add something i forgot. on the question of the constitutionality of the institutional mandate, he did 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 saint the commerce clause did not mandate, it was
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similar to those two things that judge kavanaugh struck. i just wanted to make sure that i'm not accused of inconsistencies. elizabeth: other questions? deputy director of the 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. 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 lay man in a brief way? i would say judge kavanaugh is a 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.
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it, looking fairly at the issues. motivatedavanaugh is 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 are really strongly. i love the separation of powers in every single case, he's trying to figure out why do we follow the statute because congress is the one who makes the law. reasonable disagreements, sure. but he's going to look at the kind of statute and the law and apply it neutrally and fairly. most aligned with that. .> one more question quotesidering that the on judges practically have
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become disconnected from the the benefitican and think thatdo you judge kavanaugh would have a isreme court justice and is somehow getting less and more and more becoming specialized and average people don't understand. >> first of all, with judge
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kavanaugh's understanding of the rules of the branches and judges of being more that of umpire apply the law, that philosophy played out is going to, in the end, lead to the elected branches, your member of congress, the senator, the president reaching a greater number of decisions come having more influence over the direction of the country right now that sometimes we turn to the supreme court for. that helps with the common person because the common person how the average person in the public can see, can talk to more readily in its more appropriate to talk to and lobby their elected representatives. so that person is making more decisions, that keeps things real little more. in his role as a judge writing and decided cases, the very practical brass tacks matter, judge kavanaugh's summit was very interested in the craft of writing to the extent that he is writing in a clear way that for sure he would want the first year law students, the average
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member of the public and the person reading the newspaper to be able to understand opinions writing and shorter sentence structures, clearly claiming ideas and even in that way i think trying to make sure that the decisions being reached our something that's more accessible . with the judge explaining his or her reasoning. wechsler definitely are judges who are disconnected from the public. judge kavanaugh is definitely not one of those judges. i would recommend a washington post article where it begins by interviewing the local bartender in judge kavanaugh's neighborhood and the bartender says he has been coming in for years. i didn't know he was a judge. in fact, didn't even know he was a lawyer. all we ever talked about was sports. we know he is the coach of his


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