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tv   Inside Story 2018 Ep 191  Al Jazeera  July 11, 2018 3:32am-4:00am +03

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judging the u.s. supreme court democrats are along that donald trump's choice of justice to join the highest court in america they say brett kavanaugh is a public loyalist he's too conservative and the right wing so can he win an expected space confirmation battle in the senate this is inside story. i know they're welcome to the program i'm laura kyle the latest political battleground in the u.s. senate as soon set become donald trump's choice for supreme court judge the president's nomination a republican loyalist brett kavanaugh is opposed by democrats they say trumps trying to tilt the nine justices in the highest court in the land towards the
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conservative right of the groups have already begun spending millions of dollars to persuade senators to make the right choice when they vote in the or some confirmation is expected to shape the supreme court for at least a generation we'll get to our guests and a couple of moments but first john hendren has this report from washington. with all the suspense and drama of a reality t.v. show president trump picked the favorite tonight it is my honor and privilege to announce that i will nominate judge brett kavanaugh to the united states for. the nomination of the president's choice for the u.s. supreme court has already begun a battle between liberals and conservatives that will cost millions of dollars and could dominate the november midterm elections mr trump's presentation and mr kavanagh's almost was a political campaign appealing less to judicial philosophy than to what people might think they were voting for as a political candidate if confirmed by
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a narrowly divided senate fifty three year old kavanagh is expected to tilt the nation's highest court decisively to the right in opposition to such issues as abortion and gay rights despite making this promise i believe that an independent judiciary is the crown jewel of our constitutional republic if confirmed by the senate i will keep an open mind in every case. and i will always strive to preserve the constitution of the united states and the american rule of law with respect to the constitution he believes in paying attention to what the framers thought they were writing when they wrote that language in that sense he's not going to be an attractive candidate for those above the more liberal persuasion. pro-abortion demonstrators and others began protesting on the steps of the court even before trump made the announcement cavanagh was
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a former staff secretary to president george w. bush and a former aide to kenneth starr he was the special counsel whose investigation led to the impeachment trial of president bill clinton with trump facing a special counsel of his own he may now have a key ally cavanaugh has already spoken out against indicting a sitting president. in the minnesota law review he wrote the indictment and trial of a sitting president moreover would cripple the federal government rendering it unable to function with credibility in either the international or domestic arenas of all the people the most self-serving person he could choose in order to protect himself from this criminal investigation we cannot let this confirmation process go forward with the u.s. senate deciding the nomination and split between fifty one republicans and forty nine democrats every vote will count conservative groups have already launched an ad campaign he wants the best of the best on the supreme court and the president
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has signaled he's ready for the battle trying to set up a nomination we're room next door to the white house in the eisenhower executive office building a sign to liberals that the battle is on john hendren al-jazeera the white house. thank you. well as supreme court is the highest in the united states it focuses on major constitutional issues that's such a civil rights free speech and abortion the court up held trumps travel ban last month preventing several preventing people from several mainly muslim countries from entering the u.s. because nine justices are nominated by the president and then confirmed by the senate they serve for life so it's unusual for any president to appoint more than two or three with the retirement of anthony kennedy a swing voter for many is trump's nominee is expected to move the court to the right if republican controlled senate confirms the president's choice plenty to discuss today and joining us to do so from austin texas sanford levinson
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a professor of government at the university of texas law school from washington d.c. kenneth chose to author of the supreme court yearbook and legal affairs blog post on justice and also in austin texas matthew mccovey ackerson publican consultant and former aide to president george w. bush great to have you all here a very warm welcome to you now for our international audience who might not be avid followers of american news can we just start with why this nomination is such a big deal for america and sanford if you could perhaps shed some light on this for us. well the supreme court is split right now four to four with if any kennedy's absence and brett kavanaugh will clearly resolve the split in favor of five very conservative republicans who will read the constitution and i would emphasize also statutes of the consciences important but
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we're a state of statutes and many of the most important and i would argue most regrettable decisions of the supreme court in recent years have involved statutory interpretation as well as cuts to shelter protection but in any event cavanaugh will move the court in a distinctly conservative direction that's why he was appointed and to give us some examples of what you talking about. well the best single example of has to do with access to the courts at all if for example you've been the victim of fraud by corporations of the court over the last several years has read a hit or two obscure arbitration act of one nine hundred twenty five basically to allow corporations to impose contracts on anybody use their products not
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to be able to sue but instead to be forced to go to individual arbitration where basically they're guaranteed to lose and almost nobody in fact takes advantage of this if this is extraordinarily important with regard to the actual rights of ordinary american men and women and the supreme court i should say the conservatives on the supreme court have been a successful war over the last decade or so with regard to depriving ordinary people of access to courts ok life you want full of judge what sort of man is brett kavanaugh to expect him to continue in the same vein as. talks about the. yeah i think what's important to stand about judge kavanagh is a few things number one he has
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a sterling record and reputation you know college you know law school he's taught at harvard twelve years on the second highest court in the united states the d.c. circuit court when he was put up for for nomination by by president bush it took three years to get him confirmed but he did get confirmed and he got four senate democratic votes at that time this is someone who's been an influential jurist i believe he's written eleven dissents on the d.c. circuit court that have been agreed with by a majority of the supreme court he's very intelligent very well liked these are serious serve in the bush white house first in the counsel's office and then his staff secretary one of the most senior positions in the white house so he's got a long record three hundred opinions they're going to dig through those i'm sure they'll find a couple that they'll really question him very very you know difficultly on those issues but look if you step back for a second the current the meaning of this nomination is significant and on asli it's as much as anything else chants that the swing vote would come up during trump's
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tenure could have come up in obama's tenure could come up for the next president in this case it came up trump was president and so generally democratic presidents try to move the court in a liberal direction republican presidents try to move the court in a conservative direction it's when the swing vote comes up and you have a chance to replace the swing vote that things can change now kennedy has not been a reliable liberal on everything he's been conservative on a number of things especially fiscal issues but he's been a liberal to moderate on social issues gay marriage another and other issues related to social issues so this is consequential ultimately i think democrats are pretty limited in what they can do to filibuster no longer exists for supreme court nominees unless they lose to republicans which i don't think they will cavanagh will be confirmed likely in late september kind of why do you think justice kennedy did choose to retire now when he knew that that swing position would be lost to a conservative. there has been reporting here in washington that justice kennedy in
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fact consulted with people in the trump circle in the trump white house and got some assurance that the president would appoint someone that kennedy would approve of specifically his former law clerk judge kavanaugh those are only reports but they are. intriguing reports. and justice kennedy is eighty one about to turn eighty two so it was it was time for him to think about retiring to california and leaving washington behind so ok we can forgive him at eighty one for wanting to do that i mean kennedy may may approve kavanaugh the republicans may approve but what about the democrats what challenges can it is this appointment of them well two issues already mentioned that matthew
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mentioned abortion and gay rights written ducted rights and gay rights justice kennedy cast important decisive votes three years ago in favor of recognizing same sex marriage and striking down a restrictive law from texas regulating abortion clinics in a way that would have shut many of them down but we may hear more in over the next three months about these issues one presidential power. judge kavanagh is described as an apologetic advocate for you for presidential power under our constitution and article two kind of guy and that matters a lot to president trump while he is under investigation we may also hear about gun rights one of the dissenting opinions i think that matthew referred to was he
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wanted to strike down a law here in washington d.c. banning semi automatic rifles campaign finance is another era area that we're going to hear a lot about he has judge kavanaugh has been has has written opinion and opinion striking down one campaign finance law and the other the administrative state the regulatory apparatus that that business groups in particular are so concerned with judge kavanagh has been a critic of regulation on many environmental issues among others ok just two points that i want to pick up on the presidential power and the abortion that's go with the abortion. it is a key issue how do you think he will want to rule on that given the chance i think is quite unlikely that he will not vote to
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overrule roe when he gets a chance of. that there's. there's just no reason at all to think that he would be a fifth vote to keep roe versus wade if of and i think anybody who believes otherwise anybody who takes seriously what judge cavanagh will undoubtedly say that he has great respect for president for precedent of for earlier this is the court i think that's really quite nonsensical because the fact is that both liberal and conservative justices are quite happy to overrule past decisions they think were wrongly decided and i would be astonished if judge kavanagh did not believe that roe was wrongly decided i'm after
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do you agree with that i mean he has said that he will preserve the constitution and the american rule of law but do not believe in then. i happened to catch a rebroadcast of his confirmation hearing to the d.c. circuit court when it aired on c.-span late last night here in the united states and in that hearing he did confirm that roe versus wade is the law of the land and the precedent matters and he said precedent matters last night when he was unveiled as the nominee i don't have don't share the confidence of my fellow colleague here that we know with certainty how any of these judges would rule of the eight that are on the court now only one has ever expressed specifically what they would do on roe versus wade and that's clarence thomas and he is willing to overturn roe versus wade the other eight are not on the seven plus now this nominee are not on the record we can speculate about it one of the questions is going to be what will the challenge be and this goes back to part of why kavanagh was attractive to
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conservatives attractive to the trump white house attractive to senate republicans and that is it's not about political preferences it's not about the outcome that you want it's not about a judge acting as a legislator or it is about textualism and originalism these are two terms that mean a lot in conservative legal circles and they have been gaining mostly because of the legacy and the lifetime of service of antonin scalia textualism refers to looking at statues as sandy mentioned earlier looking at the actual language what is the language of the last say and interpret ing it very specifically originalism looks at the intent of the founders at the time the constitution was written and so if you are an originalist and you are a textualist you look at those two things and you look at every decision through that lens i don't think in the short term or even in the medium term roe versus wade is likely to be overturned what i do think you might see is restrictions on how it can how it can work going forward you might see additional restrictions
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perhaps late term abortion could be outlawed for example but even if it were overturned let's say were overturned two years from now it would not be illegal it would then go to the states and you would likely have thirty or thirty five or forty states. where it would probably be legal so i think there's a couple points here on roe versus wade that need to be put on the table democrats certainly want to make this about roe versus wade i think he is likely to adhere to the ginsburg standard of not forecasting how he would judge an upcoming potential ruling ok with only going to be a big issue is that in his confirmation hearing he's going to get a huge grilling especially on this issue and then but instead big battle in the senate homeland the republicans only have to slimmest of majorities i think every vote is going to count in this battle. that that's quite right and some there is some disappointment among trump's political base many social conservatives favored amy barrett
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a newly appointed federal appeals court judge who was seen as a certain vote to overrule roe v wade and these social conservatives are dubious about judge kavanaugh and the key player on this issue may be surely is chief justice roberts does he want to be in a headline that says roe v wade over rule there's some reason to think that he wouldn't really relish that headline and if judge kavanaugh comes across as more respectful of precedent then ready to overrule roe v wade that helps senate confirmation by easing any doubts that the two republican female senators might have lisa murkowski and susan collins if
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they stay on reservation his confirmation is assured ok sound you can see we've got something to outta. it out of i agree that it was just said about susan collins and lisa murkowski of let me say to be very blunt that i think it is kosta month sensical to believe that what a judge being appointed to what the constitution calls the inferior federal judiciary what a nominee says about precedent will carry over to the very very peculiar office of the supreme court justice it is the case that an inferior court judge is banned by what the supreme court says it would be astonishing if any appellate judge of an inferior court tried to in effect overrule the supreme court
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once you get out of supreme court all bets are off and the the belief that what judge kavanaugh says about precedent is. something you could take to the bank to get a loan on is just silly he's a very smart guy he will say the right things in order to make it possible for collins. to vote for him but quite frankly the this is not a court that exhibits great respect for precedent and it's not a certainty i agree that was said before if it's not a sure thing he could surprise us i also agree that chief justice roberts is key on this but if you were a betting person it would be for wish to put a lot of money on the survival of roe ok. matthew you mentioned
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before that there's no filibuster that even if. even if cavanagh does get the votes he needed we saw in two thousand and sixteen obama's nomination judge merrick garland was blocked by the republicans can there not be some sort of ploy that the democrats can pull out of the bag this time. no and that's because the math matters in the senate at the time that merrick garland was nominated by president obama republicans held a majority in the senate so they had the ability to decide whether a supreme court nominee would be considered in the light in a presidential election year they continue to hold the majority and so this goes back to decisions that craddock leaders like harry reid and chuck schumer have made in recent years having the filibuster would be pretty valuable right now for the democrats that was gotten rid of chuck schumer decided to filibuster new of course
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it's a supreme lee qualified nominee to the supreme court and ultimately senate majority mcconnell got rid of the filibuster because of that and so that option doesn't exist anymore and so the democrats are actually pretty limited they're going to try to slow this down say you know demand every single document the history of his of his life everything he's ever looked at everything he's ever written everything he's ever said and given that he's done three hundred opinions he has a long legal career is in a poll lawyer there's a lot of material out there but i still think that ultimately the senate majority is going to want to ninth justice seated before the october term begins the fall term begins and that unless he handles his confirmation hearing poorly would serve no reason to believe he will but if he does that could slow things down if he handles it well and he answers the questions in the private meetings with senators go well i think he's going to be confirmed and i think it's actually more likely he's going to get democratic votes in favor then that he will lose republican votes from susan collins or lisa murkowski you have three democrats that voted for a new of course which last year you had four senate democrats vote for kavanagh
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when he was considered in two thousand and six and you've got five six maybe seven democrats who are going to consider i think voting for kavanaugh this time the three that voted for gore such and then four more who are in red states in tough races this fall but ultimately the public is going to have to see how cabinet does and they're going to issue their own ruling in terms of public approval of this nominee so given that it seems that kavanagh is a likely next judge on the supreme court the canvas want to broaden the discussion out of the majority when and why is it that america chooses supreme court judges for life i mean it does feel like that's them unnecessary for knowledge about this . well our constitution was written now two hundred twenty five years ago and the decision that the framers made was was the federal judges need lifetime tenure in order to guarantee their independence there is some discussion of
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some kind of term limit for supreme court justices but that discussion has gone nowhere and will go nowhere and it lost lost lost lost thought sandy just just wondering how much americans at sea talking about this and how much they actually care about this now well unfortunately i agree with ken joe's that. the not a big admirer of the united states constitution i think it has a lot of flaws and i think that wife tenure especially for supreme court justices is one of them if you look at most countries around the world and very very importantly if you look at the fifty state constitutions within the united states you discover that wife tenure is that extraordinarily rare for a very good reason it's a stupid idea to have somebody on the highest court for thirty years but we are stuck with it and one of the worst features of the u.s.
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constitution is that it's next to impossible to amend so that's why i can is right that discussions of getting rid of life tenure aren't going anywhere because there's a belief that frankly nothing can be done right and that is a whole new inside story but that night we're going to have to leave it for this program today many thanks to all our guests for joining us today sandy levinson kenneth and matthew mccovey act and thank you to you for watching you can see the program again any time by visiting a website that's al jazeera dot com have a discussion to go to our facebook page that's facebook dot com for slash a.j. inside. ari you can also join the conversation on twitter one hundred's at a j. inside story from maid laura and the whole team here it's quite funny.
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from mother to daughter an ancient craft kept alive by a bustling matriarch. from start to finish. all traditions intertwined with new designs making this family's place unique into nazir's rich tapestry. the threads on a zero. thank you of opinion and wits that take that view is no point to make an argument that i have no basis in fact for an esteemed chamber of debate i was in every important
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thing an examination of the ideas the thinkers the theorists and the leaders a lot of people see them as victories for me to and from their having a victory for anybody sexual itself can fail you a new series of head to head coming soon on al-jazeera. on july fourteenth. two thousand and sixteen. an attack on the city a day in nice would change people's lives forever. that immediacy has killed at least sixty. two years on al-jazeera world meets the french muslim families who lost their loved ones. truck attack a nice an al-jazeera.
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