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tv   Heritage Panel Examines Judge Kavanaughs Rulings  CSPAN  August 15, 2018 5:25am-6:24am EDT

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early yesterday morning the bus arrived in hawaii after a weeklong journey on a cargo ship. you can find the c-span bus in and maui.oahu >> c-span washington journal live every day with news and policy issues that impact you. coming up this morning. inside elections reporter on the result of primaries in four states. a discussion of nafta renegotiations and trade policy. public citizen global trade watch director is on as well. watch washington journal live at 7 a.m. eastern this morning. join the discussion. >> this afternoon a panel of the heritage foundation reviewed
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judge brett kavanaugh's rulings over the years. elizabeth: welcome to the heritage foundation. i am elizabeth slattery, a legal fellow here. thank you for coming. on july 9, president donald trump nominated brett kavanaugh to become a justice on the supreme court. trump called brett kavanaugh a judge's judge and noted that he is on the finest legal minds of our time. he has served on the d c 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. judge kavanaugh has a said that -- has said that "the text of the law is the law" and judges are not authorized to rewrite laws because they think they
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should be updated. he has written extensively on and off the bench about separation of powers and statutory interpretation. he has co-authored a book on judicial precedent. the senate judiciary committee will hold a hearing in three weeks to examine judge kavanaugh's record and judicial philosophy. today, we have a panel of distinguished experts here to discuss judge kavanaugh's most significant rulings in the areas of individual rights, administrative law, and national security, some of which may come up during the hearing. so in order to get to our panelists, i will keep their introductions very brief. first up is justin walker, an assistant professor of law at the university of louisville's brandeis school of law. he previously worked at gibson dunn here in washington in addition to serving as a speechwriter for defense secretary, donald rumsfeld. he clerked for judge kavanagh and justice anthony kennedy on the supreme court. he is a graduate of duke universiry and harvard law school, and i would be remiss if i did not mention that he and i are both graduates of the same grade school in louisville.
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go bears! next up, chris walker is associate professor of law at the ohio state university school of law where he researchers administrative law and regulation. he is a public member of the administrative conference of the united states, and before entering academia, he served in the justice department criminal representing federal agencies and defending federal regulations in a variety of contexts. he clerked for judge alex kaczynski on the ninth circuit and justice kennedy on the supreme court. he has a ba from brigham young university, a masters in public policy from harvard, and a jd from stanford. then, we will hear from jennifer mascot. she is assistant professor of law at george university's scalia law school where she teaches administrative law and fed courts. she is also a public member of the administrative conference of the united states. she clerked for judge kavanaugh on his first year on the bench, i think she was actually the first law clerk he hired. she also clerked for justice clarence thomas on the supreme
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court. she is a graduate of the university of maryland and the george washington university law school. last but not least, we will hear from jameel jaffer, who is an adjunt professor of law at george mason, where he runs the national security law program. he worked in the justice department's office of legal policy, the white house counsel's office during the bush administration, and served as the chief counsel and senior advisor to the senate foreign relations committee, and senior counsel to the house intelligence committee. he was one of neil gorsuch's first law clerks to justice in the 10th circuit and, at the supreme court. he is a graduate of the ucla, university of chicago law school and the naval war college. for now, i will turn it over to justin. justin: thank you very much. i am happy to see all of you. i will talk about a few of 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,
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written 300 different opinions, and hopefully, you have watched enough cable news or read enough coverage about him to know that 13 of his opinions have been endorsed by the united states supreme court, which i think, suggest that all the opinions we will talk about today, are pretty much within the amendment, this is a good
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example of a republican appointed judge applying the first amendment in a neutral, mainstream way in a case that
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, a liberal group that supports abortion rights and female pro-choice candidates. what he said there was the fec's regulation of these groups was invalid, because they were restricting how much money they could spend to speak. he distinguished, as the supreme court has done, regulations on donations directly to candidates, which can be regulated under buckley, and 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 government's job to tell people, "we want to hear less from you."
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so, coming from free speech, to religion, in a case called newdow v. roberts, the case of a prayer before the presidential election and challenged the phrase "under god" and judge kavanaugh's opinion, i think it was noteworthy for several reasons. one is, he sides against the plaintiff but he shows the fair-minded thoughtfulness that one would hope a judge would show when a plaintiff is bringing a deeply held belief. say the test should be and the establishment clause area, as many of you know, i read yesterday that that phrase is a micro-aggression.
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scratch that. as you may or may not know, the establishment clause jurisprudence. is not the clearest area of constitutional law. all, in terms of what test should be applied. what kind of coercion counts. ofe you decide on what kind test to apply, it is not clear how that should be applied. he takes guidance from the supreme court of approach to the issue of -- he uses history and tradition rather than the co-version test or endorsement test.
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vindicatedproach was several years later when the said it was ok. issue i will mention before passing the microphone is the second amendment. in 2008, the supreme court heller had adick right to a handgun in his home for a self-defense. d.c. responded by enacting a host of other gun-control measures including a ban on semiautomatic rifles. he sued again. it went to a panel that included judge kavanaugh and two other
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republican appointees. you might have been thinking if there were three republican claim, there is reason for optimism for him. judge kavanaugh was the only of the three judges who said that he had the right to the weapon in question. said het not because he likes guns or dislikes guns. it had no bearing on the question. he also noted that he understands the problems of crime. he has lived in the d.c. area for almost all of his life and he recognizes it is a serious issue. he said if you read justice scalia'snion -- opinion, he suggests you do not conduct some kind of free wielding balance tests when it comes to the right to possess a weapon.
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that was done for by the founders and framers and ratifiers when they put the second amendment in the bill of rights. notquestion for a judge is how great is the government interest or how narrowly tailored is the regulation in question. the question is, is this consistent with our history and tradition? in 52 pages, judge kavanaugh's thorough,es through a thoughtful analysis of the history and concludes there is not a history and tradition that would allow the banding of these weapons. i'm looking forward to hearing a lot mourn other areas. thanks. >> tough act to follow. free speech, religion, guns, and to have to talk about administrative law.
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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 2015-2016 period, federal agencies promulgated over 60,000 pages in the federal register. during that same period, congress passed 329 public laws, taking up 3000 pages in the statutes at large. we live in an era where lawmaking by regulation predominates. it is exciting to me to see president trump nominate someone from the d.c. circuit, which is by congressional design a court that specializes in administrative law. they see the vast -- not the
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vast majority. it is the preeminent administrative law court we have in the united states. judge kavanaugh is one of the most sophisticated and creative jurists in the judiciary when it comes to administrative law. as an administrative law professor, this is a geek fest. i thought gorsuch was fun. this is even more fun. my bottom line is if you are hoping for a deconstruction of the administrative state as steve bannon said, you will be disappointed. judge kavanaugh is someone who cares deeply about administrative law and regulatory practice. in fact, some of the claims you are seeing are a little bit fun. in the "washington post" last week a law professor said, "this , is the end of the regulatory state as we know it. if judge kavanaugh goes up
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there, they will never find a regulation that is acceptable." that's just not an accurate reading of the record. we have a very substantial record here. he has over a dozen years on the court. he has written over 120 decisions that deal with administrative law. what we will not see a deconstruction of the administrative state, not to bury the lead but judge kavanaugh is someone who will reign in the administrative state or to a tighter leash. you will see that and i will sketch that out in two different contexts in the time i have remaining to give you a sense of how he would do that. these are explained in much more detail on a scotus blog i did two weeks ago. the first is chevron deference. chevron deference is a hot topic in administrative law. this is the doctrine the supreme court established in 1984 that
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said federal agencies, not courts were the very , interpreters of ambiguous statutes. it shifts the law interpretive power from courts to federal agencies. this, at the time was part of a , concerted movement. it was a d 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 through regulation when they couldn't achieve that goal through legislation. this is going to be a core issue at the senate judiciary hearing in three weeks. it was with justice gorsuch and i think it will be with judge kavanaugh as well. there are three different ways that judge kavanaugh would narrow chevron deference. the first is, he's a lot like
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justice deleo when it comes to interpreting statutes. tools toll of the eliminate ambiguities. that matters under chevron because if the statute is unambiguous, the agency doesn't get any deference. that is the first step of chevron. for judge kavanaugh and his opinions, you see him finding statutes unambiguous more often than a lot of his peers. at a lecture he gave here last year, he explained that in an eloquent way, building on a harvard law review where he said some judges want to be 90% certain that a statute is unambiguous before they declare it unambiguous. i am probably closer, this is him to 60%. , he will use the tools and say, if it is fairly certain, i am not going to defer to the federal agency.
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it's quite similar to a opinion from the supreme court written by justice gorsuch. that the standard should be clear enough. it is not crystal clear, but a clear enough standard. seefirst way you will justice kavanaugh differ perhaps from his former boss is, he is textualist. a he will find statutes unambiguous which will lead to less room to maneuver. the second way is the net neutrality case and the dissent from denial. justice kavanagh on the first half of that decision explains at length his approach to the major questions doctrine which is an exception to chevron deference. this exception got a lot of the fanfare in the obamacare statutory challenge that made it to the supreme court. there chief justice roberts, , writing for a six justice
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majority applied it and said, , when it comes to statutory ambiguity said we will not defer to the agency. here, you are asking us to defer to the irs about how to regulate billions of dollars in the health market. that's a major question. the irs does not have the expertise. we're not going to defer. chief justice roberts found a way for the irs to win. but there is a major question exception to chevron deference. in the net neutrality regulation, judge kavanaugh confronted the major questions doctrine and embraced it as he should. he said this applies here as well regulating the internet in , this way is not -- is a major political and economic question and congress has not spoken clearly. we are not going to defer to the agency. we will decide this ourselves. he took it a step further and
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not only did you not get chevron deference from judge kavanaugh. you would say you wouldn't even have the authority to regulate unless there were a clear statement from congress to the contrary. that is the second way in which you might see justice kavanagh narrowing the chevron deference. the third, i won't spend as much time on it is fascinating. i would encourage you to go read the story lecture that he 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 -- for deference when there is an open ended ground of authority and not when it is a statutory provision. his reasoning is out of 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.
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that is the chevron side. at the end of the day -- along the same point, if you read justice kennedy's concurrence in perera, where he expresses concerns on chevron they look a , lot like judge kavanaugh. you will see a judge that will probably be open to narrowing chevron deference by finding statutes 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 will not spend as much time on this. judge kavanaugh takes hard look review seriously. the most prominent decision is one that led to michigan the epa decision at the supreme court
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where judge kavanaugh in dissent at the d c circuit said 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 that position. you get from that a reading that justice kavanaugh will look at agency decisions and ask that they consider all the statutory factors. are they acting within their authority? did they consider counter arguments? did they follow the procedures congress requires? if not, the agency cannot regulate. we will send it back. if so, the agency wins. if you look at his record, agencies win, agencies lose. sometime it -- sometimes, it is a liberal win. he is quite principal in
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applying the administrative procedure act. i will say, there have been a number of the environmental law professors that have worried about the future of the administrative state under the administrative procedure act. i will pull one quote from professor michael livermore. giving congressional gridlock, this has become the primary vehicle for environmental progress over the past several decades. replacing kennedy with kavanaugh will make this more difficult. i agree with that. getting back to where i started, congress is not legislating. agencies are using 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 agency to regulate, he will not let them regulate. he is going to say congress,
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you've got to pass legislation. in that sense, i do think some of these concerns raised by administrative law and environmental law professors -- there is some foundation to them. some of us wouldn't view those concerns. some of us would think that congress should legislate and if there is an issue of major political or economic significance, congress should take the lead and say yes, here are our instructions for how you deal with x, y, or z. in justice kavanaugh you will see someone motivated by separation of powers. i will leave that for jen. they will hold agencies accountable to what congress has told them they can and cannot do. quite frankly, i think in some ways that will be more searching , than justice kennedy. we will not see a deconstruction of the administrative state. jennifer: thanks to heritage for having this event. it is a great honor to be a former law clerk of judge
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kavanaugh and be here talking about his record. the process is a serious and weighty thing. i think it is great we are able to take a close look at his record. glad you all are here to talk about that. as justin mentioned, he has quite an extensive record. more than 300 opinions. a number of which were adopted with their reasoning later by the supreme court and cited repeatedly by the supreme court. so i will peel off a piece of judge kavanaugh's jurisprudence today dealing with structural safeguards for government in the constitution and i think judge kavanaugh has written a lot about this in his jurisprudence and there are two themes that a lot of his opinions and separate writings talk about. one is the safeguard of separation of powers. that is a term we used to talk about 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
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constitution. another safeguard that 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 -- a lot of layers. so judge kavanaugh has written quite a bit about what the executive's proper role is in being able to supervise that branch. these themes come out in his writing. basically, he has emphasized that to keep accountability in government, the role of congress and the role of the executive as being the elected branches of government is to be playing the lead and making policy, carrying out policy. he has conceptualized the role of a judge as more of an umpire. that doesn't always mean a judge is not going to step in, but it means a judge should try to be independent and look at neutral
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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 in a certain way it is , the role of the judge to step in and apply the law. 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. judge kavanaugh has also written about the importance of the principles, not just to apply the roles of the constitution which would be good in and of itself. but ultimately, these safeguards of separation of powers get back to individual liberties and individual rights. by federal power being divided among three branches, multiple actors have to agree before a step is taken that regulates private rights. on the side of the executive branch and having accountability
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for the president is the president is the only elected factor in -- actor in the executive branch. as the public, we have a role in bringing responsibility only to the extent that the president is able to oversee what is going on. i don't know if you have had a chance to read the questionnaire but one of the questions he is asked are what are his most 10 significant opinions. you can see the focus of his jurisprudence because the court on which he sits sees lots of agency cases. it is themes of separation of power. opinion and 2008 there are a number of things to see about judge kavanaugh and his understanding of the law. what i think it's interesting is that as a relatively junior judge at the time, in his second year on the bench is writing a dissent. he is already being independent
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and applying the laws as he's understands it even though in that case it put him at odds with his colleagues. he also is right off the bat influential in the sense that two years later, the supreme court, in an opinion by chief justice roberts comes down on the side that judge kavanaugh had laid out in his opinion feeling as though there were not the proper accountability for executive power and the structure that had been 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 where if the president does not like the decision, the president can fire the commissioner. the president at least under how
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the supreme court has , interpreted the law there are , tenure protections. what happened in that case was the 2002 act, another 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 there were also tenure protections for board members meaning not only could the , president not easily remove a commissioner who was not executing his policy, but the sec could not easily fire a board member at the time if the board member was moving things in a different direction. you can see judge kavanaugh's interpretive principles because he starts the constitutional text. he looked at the history as well and the context and this being a unique structure in our system where for decades there have been supreme court saying it is
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constitutional and has limitations on firing the heads of independent agencies. that had never been taken to this next level where it was also hard for the independent commissioners themselves to be able to oversee what was happening within that branch of government. was that appropriate for folks like the board members who work -- who were carrying out important decisions? judge kavanaugh wrote a opinion saying no which the supreme court later agreed with. the general idea of accountability, which judge kavanaugh thought was important for public responsibility, has been a theme throughout other opinions. his career on the d c circuit has been bookended -- before the court earlier this year, judge kavanaugh talked about another unique agency structure, the head of the consumer financial protection bureau and whether it is constitutional for that agency, which operates like an independent agency to be headed
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just by one person instead of the multiple heads we have at the top of the securities and exchange commission, and again raised questions about whether a president who is elected can fully carry out the agenda that the public has elected the president to carry out if the president is impacted in being able to supervise what is going on. judge kavanaugh carried that out again in another opinion dealing with a different issue in 2012. a decision that is also interesting with the theme of executive accountability. in that case, the issue was whether nuclear waste would continue to be stored at a facility. in that case, the dispute was over -- the particular issue he was whether the independent nuclear regulatory commission or the more direct way accountable to the president, department of energy would have the final say on whether the administration was going to continue to apply to store waste there.
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judge kavanaugh spent time in his concurring opinion talking about how, because at the end of the date the source of accountability for government is the people and elections, in big policymaking decisions it would seem more appropriate within the constitutional structure for greater weight to be given to the department of energy, which was more closely accountable to the president. i think that concurring opinion is remarkable for two additional reasons. one, because it shows the same theme chris is talking about, neutral application of principles and the idea of accountability regardless of what political party is in power and regardless of whether it will end up being pro or anti-regulation. at some of that case, it was president obama who was in power. judge kavanaugh in that opinion -- being able to carry out campaign promises the president
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be able to make the key policy decisions that need to be made in carrying out the executive's role that congress has authorized the executive to play. he emphasized that his approach in that case would have -- would be in favor of president obama being able to withdraw the application to store nuclear waste. the other thing that is relevant is judge kavanaugh tells us about his view of precedent toward the back and of that. even though it is relevant to think about independent agencies versus executive agencies in terms of which agency should have a role for which issues, the supreme court in the case of humphrey's executor had already decided the issue of the constitutionality of independent agencies that was binding precedent and needed to be respected. he emphasized that and told us about his understanding of
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long-standing precedent in that case. just quickly, touching on a couple more opinions that get a little more into regulation itself, moving on with the theme of neutral principles, the first public case i talked about were about the principle of the executive and how much supervision to needs to be within the executive ranch. -- branch. 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, when it has enacted a statute, if it is supporting agency action and regulations that, that needs to be adhered to. just the same as if an agency seems to be going outside of its role. there is a pair of cases involving the epa that i think illustrate this point. in 2012, coalition for responsible regulation versus epa, judge kavanaugh said he thought the epa had too expansively interpreted its
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authority to regulate greenhouse gases in its interpretation of the word 'air pollutant.' the next year, a similar question came up in biological diversity versus epa, and judge kavanaugh in the second opinion ended up writing an opinion that would have been quite pro-regulation, where he talked about the d.c. circuit judge had reached an interpretation different from his own in the prior case. precedent needed to be adhered to and neutrally applied. in the 2013 case, the epa had more authority or responsibility to be requiring permits in the area of carbon dioxide emissions than the epa thought had. you see a person who is very much case-by-case looking to the relevant legal authority, whether it will come out on one policy side or the other.
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just one other way that plays out is judge kavanaugh, and we will talk more about this in the area of national security, but judge kavanaugh has advocated and noted the role of congress not just in restraining or guiding how agencies can act in regulation but also and other areas of power shared by the executive and congress. national security and international affairs as well, judge kavanaugh has talked about the role of congress in relating for the executive branch and how it is the role of courts to make sure that those limits are being adhered to. sometimes i think judge kavanaugh's opinions that i talked about on the front end have been interpreted as being pro-presidential power. i think that is wrong way to look at judge kavanaugh's jurisprudence.
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what he has been looking at are two separate issues. within the area where the executive lawfully operates, judge kavanaugh is saying for individual freedom to be protected, the elected officer have has to be able to supervise what happens in the executive branch. in a separate and distinct issue, how much power the executive branch should carry out in relation to the amount of the role congress has. congress has a quite a bit of a role in setting policy of the federal government, and also at times in partnering with the executive in some of the foreign relations areas. judge kavanaugh is focused on those areas. jameel: thanks to my panelists for coming to the heritage foundation and for having us. i would like to talk about judge kavanaugh's record in national security cases. i scuttled myself so i have a
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hard stop at 1:00. i will keep it very short so we have time for questions. i will stick around as long as i can. the theme you take from judge kavanaugh's cases is a separation of powers. the idea that each of the court and branches of government has a critical and important role to play in national security cases. we historically have thought of national security as an area largely in the control of the president. what is interesting about that is when you look at the constitution, there were tremendous number of powers assigned to the president and congress. on numerical basis alone, congress has more power if you count up the number of times the national security or foreign policy matters are mentioned in the constitution than the president. the president has the executive power and commander-in-chief power which has been understood to be quite important and quite significant. congress has a large number of things, the power to declare war and raise and support armies.
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what you see in judge kavanaugh's opinions is a recognition of that role. the role of congress in constraining presidential authority in warmaking and in regulating presidential authority in foreign policy and the like. at the same time, judge kavanaugh's opinions demonstrate a healthy respect for the role of political branches in making these choices. but not a recognition that they have the primary role, but that courts do have a role. it's not that the courts aren't important and don't have something to do, but their job is to ensure that when the political branches are tangling in the space, each one is given their due. if you look at his opinion where 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
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sought to regulate the national security authorities of the president through statute, if the courts decide not to do anything into ticket off, they have moved in favor of the executive branch. the executive decision to act stands. no matter the congress thought to regulate that decision. it is important for judge kavanaugh for courts to play their role, which is at times policing the separation of powers and ensuring that the coordinate political branches play the role they're supposed to. at the same time, what you see in judge kavanaugh's opinion is a recognition that when congress does act, congress also does not have unlimited authority. there are things congress might do to contravene the constitution. to the extent you are interpreting congressional action, you interpret to avoid retroactive activity.
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even the gitmo conflict -- you think, this guy is a bush administration lawyer, he is pro-government. what you find out is, it's not about being pro-or anti-government, what it's about is enforcing the rules as congress has written them and the constitution as the framers understood it to be. when you see there, those cases are ones where he has determined the law can't be applied to these gitmo detainees, because at the time of their conduct, the law was not in place. that is an important thing to see in judge kavanaugh's opinions, which is a recognition of the important role of the branches and of government and constraining individual action but also the importance of civil liberties and their own rights under the law and constitution of the united states. so what you see here is a judge who is a judge's judge. a judge who does not try to make it up as he goes along but interpret the law system with the text written by members of congress, the political
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branches. and the constitution as understood by the people who wrote it and as understood by those who expositors -- exposited it at that time. that is an important thing is we talk about the potential nomination of a judge to the supreme court. you want a judge who has a healthy respect for the role of each branch, including his or her own. that is the kind of judge you see in judge kavanaugh. we have an extensive record. 184,000 pages of material given to the judiciary committee. this idea that there is not enough paperwork or material and september 4, which is longer than any other modern judge or nominee has awaited confirmation is ridiculous. i'm hoping we will see a swift effort and rapid action on the floor. elizabeth: thank you. with that we will open it to questions. so please wait for the microphone.
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we have a microphone and identify yourself and keep it brief. >> thank you, panel. should i stand? elizabeth: sure. >> never mind, i will just sit. i'm a policy analyst for six point strategies. it is a consulting firm in dupont circle. my question concerns the obamacare case. some people such as judge napolitano and fox news says judge kavanaugh held up obamacare, which i don't think to be true. how would you explain that dissent and how would you explain his dissent in the 2014 or the 2015 obamacare case. elizabeth: who would like to take that?
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>> i think what you see in the first case you mentioned is a text realist judge who cared a lot about words of the statute and who does not care about passion and prejudice for any particular party or policy outcome will the threshold question in that case was whether or not the statute required a challenger to the aca individual mandate to wait until the tax penalty had been assessed before challenging the constitutionality of the individual mandate tax penalty. judge kavanaugh had written extensively about the anti-injunction act in previous cases, including a case called cohen. there was a lot at stake.
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he interpreted the anti-injunction act to require that a challenge to the individual mandate county be delayed. i think that is a question that reasonable people can agree and disagree about. but, what i take from that is not just how did he decide that issue, but what do we learn about how he will decide all issues? i think the answer to that question is judge kavanaugh goes where the law leads. he goes where the text of the statute leads. justice kagan has said in a few speeches that in a world that has been shaped by justice scalia's textualism, that we are all textualists now to a degree.
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to the extent that there is a spectrum of how faithful a judge is going to be to text, as informed by structure and history and precedent. on that spectrum, i think judge kavanaugh is very much toward the side that sees the judge's role as a limited role. he used to tell us in chambers and in his separation of powers class that he taught when i was in law school, he would tell us every case is a separation of powers case. even when that claim is not raised. what he meant is that every case requires the judge to remember the proper limited role of the judiciary in our structure. that is the executive and legislative that make policy and it is the judge's role not to invent law, but to simply apply the law. those are a few thoughts. >> i would say, my co-blogger
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has a blog post on the first case there. quite frankly, he has had this itch for the anti-injunction act. i don't agree with him. that is a reasonable position -- i think it's wrong. if you read an article that i cannot -- i think it was motivated in part by judge kavanaugh's opinion there. he is just wrong. he's reading the statute, he didn't uphold obamacare. he didn't answer the question. reasonable people can disagree about that. i think the first on the regulation journal blog was good on that. i don't know much about the origination clause. >> the one thing i would say about this is, we as conservatives talk a lot about the importance of judges in adhering to text. but when we don't like that, we revolt.
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no, well that person did this or that. the truth is, as conservatives we should be looking at the methodology of the judge and the role of the judge. you want a judge who understands that he or she wears a rope, not a cape. sometimes that means decisions don't come out the way we as conservatives might not like. that is good. that's the job of a judge. a good judge doesn't come out the way they want all the time. that is a willful judge. you don't want a willful judge. you don't want a willful justice. that is not good for democracy. that is not what our constitution intended, and it is not what you want for a nominee to the federal bench whether it is the appellate level or supreme court. justin: can i add something i forgot? i don't want to be accused of being inconsistent. on the question of the constitutionality of the institutional mandate, judge kavanaugh say it may be unprecedented and there may be a
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problem with it not having a limiting principle. if you look at the roadmap the supreme court followed in singing the commerce clause did not authorize that mandate, it was similar to those two things that judge kavanaugh struck. i just want to make sure that i'm not accused of inconsistency. elizabeth: other questions? >> deputy director of the center -- legal center here at the heritage. let's say you walk up the front door and mr. and mr. average american are walking by and they ask you the question that is the title of the event today. what kind of judge is judge kavanaugh? being professors, you want to spend the afternoon with them, but you only have a sentence or two. how would you answer that question to the layman in a brief way?
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jennifer: i would say judge kavanaugh is an independent, fair-minded judge who is looking to apply the text and statutes of the constitution with the context and relevant history and precedent that there is. case by case, looking fairly at the issues. >> judge kavanaugh's jurisprudence is motivated by separation of powers. he wants to make sure that congress is doing its job. that the president does his or her job, and the federal agencies are following the commands of both. you see that really strongly. i love the idea that you see separation of powers in every single case. why does he care we follow the statute? because congress makes the law. are there reasonable disagreements? sure. he is the type of judge that will look at a law and apply it neutrally and fairly that is most like in a way that congress -- aligned in a way congress intended.
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>> i think we have time for one more question? >> on quotes on judges, conservatives have become disconnected from the average american. to to the control or benefit of attorneys or those with natural means. what effect do you think george -- judge kavanaugh would have as a supreme court justice to improve this issue, this disconnecting with society, to be somewhat eliminated or at least -- more and more judges
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and everything are becoming specialized at the same time everyone is supposed to know the law. the average people don't understand. >> first of all, with judge kavanaugh's understanding of the role of the branches and judges being a umpire of the law. that leads to the elected branches, your member of congress, president, reaching a greater number of decisions. i think that in and of itself helps with the common person. the average person can see and talk to more readily their elected representatives. if that person is making a decision, that keeps things real a little more. in his role as a judge deciding practical cases, judge kavanaugh
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is interested in the craft of writing, to the extent that he is writing in a clear way that for sure he would want the average member of the public to understand opinions, writing in shorter sentence structures, clearly explaining ideas. even in that way, trying to make sure the decision is being reached is something i think is more accessible and we are not hiding behind big ideas, but the judge explaining his or her own reasoning. >> i think there are judges that are disconnected from the public, but judge kavanaugh is not one. i would recommend a washington post article who reviews the local bartender of judge kavanaugh. he said, oh, he has been coming in for years. i did not know she was a judge.
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in fact i did not know he was a , lawyer. he is the coach of his daughter's basketball team. he only talked about sports. we had a meeting we had to push back because he had been up too late the night before watching postgame coverage on a national's game. -- the washington capitals game. he is a brilliant jurist, but also a humble down-to-earth dad and friends and mentor. >> we've come to the end of our time so please join me in thanking our panelists. [applause] [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] senators returned to washington today after a shortened summer recess and will
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continue work on judicial nominations starting at noon and we will have live coverage as always on c-span two. we may see the body take up opioid legislation, a water infrastructure built and an effort to reauthorize the federal aviation administration. it hers are reviewing 8000 pages of recently released records from judge brett cavanagh's time in the white house. he is scheduled to testify before the senate judiciary committee after labor day. senator chuck grassley, the committee chairman, says the confirmation hearing could last three or four days. you can watch it all live on or listen live on the free c-span radio app. next, today's white house briefing with price -- with white house press secretary sarah sanders.


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