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tv   Supreme Court Confirmation Hearing  CNN  September 5, 2018 12:00pm-1:01pm PDT

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divide power and that we make sure that no one person in a jury situation or other situations where our liberty can be affected is exercising total control. >> great. thank you very much, judge. my time is expired. i am not the chairman of this committee even though i'm playing him on tv. i understand that under the previous ordered entered before he left, we're supposed to take a ten-minute break. we'll stand in recess for ten minutes. >> all right. i'm wolf blitzer alongside jake tapper. we're live here in washington. this is cnn's special coverage of the confirmation hearing for the u.s. supreme court nominee brett kavanaugh. >> judge kavanaugh has been grilled by some senators on issues ranging from abortion rights to gun control to the limits of presidential power. he's been complimented by other senators. kavanaugh refused to say whether a sitting president can be forced to respond to a subpoena, but he says not even the executive branch of government is exempt from the law.
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take a listen. >> no one is above the law in our constitutional system. federalist 69, hamilton makes clear all the ways that the executive branch, as designed by the framers of the constitution, was different from the monarchy. under our system of government, the executive branch is subject to the law, subject to the court system, and that's an important part of federalist 69. it's an important part of the constitutional structure. >> judge kavanaugh says the roe versus wade decision legalizing abortion rights for women here in the united states is entitled to respect. he defended his dissent in a case upholding a ban on semiautomatic weapons in the district of columbia and denied any involvement in the enhanced interrogation program targeting terror suspects. let's bring back our reporters, analysts, and commentators. let me get your thoughts. jeffrey, how is he doing so far?
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>> certainly seems like he's doing fine. certainly the most aggressive questioning he's gotten so far is from sheldon whitehouse, the senator from rhode island, who was after him on the subject of dark money, of campaign contributions, who was talking about, you know, money that was spent on behalf of his confirmation, outside groups putting forth money. kavanaugh said, you know, essentially it was all news to me. i don't think it's the kind of questioning that's going to change a lot of votes, but it is an important question about american politics. you know, why we don't know the sources of the money that's being spent on political issues. but, you know, the republicans have been serving up softballs. there was kind of an endearing nerd fest between mike lee of utah, someone who knows a lot of constitutional law, and judge kavanaugh about what their favorite federalist paper was, which i think is actually ratings magic for cnn. >> we all want to talk about
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that. >> senator lee actually compared choosing among the federalist papers to choosing between your children. >> he did, he did. >> i got to give him a nod for that. >> you've been covering the supreme court for a long time. how's he doing? >> he's still staying on message with his talking points. very disciplined. it's starting to get a little rougher with some of the other democra democrats on the committee, in addition to sheldon whitehouse. senator durbin really pressed him on his dissent in the abortion case. that's obviously topic "a" with these. i think senator klobuchar and harris and booker coming down the line, we're going to see a little bit more give and take. but he was also asked about the role of the federalist society in choosing him for this and sort of said, you know, the president chose me. i've said president trump chose me. he really wanted to make sure that he separated himself from that role in some ways. >> senator santorum, if i could bring you in. one of the points senator durbin was trying to make on the dissent idea was that brett
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kavanaugh, judge kavanaugh, says he respects precedent, but in this case he was not siding with precedent, and there were a number of judges that ruled against him. how did you take his answer? >> and judge kavanaugh said, you're wrong, that you have to read section 2b of the decision, not just 2a. if you read that, i am absolutely -- in fact, i've got it right, they've got it wrong. he's not making the argument that i disagree with the precedent. he's saying, i understand the precedent better than the judges who decided. and that's a legitimate -- i mean, that's a legitimate argument. >> ultimately when it gets up to the supreme court, if it does, he will be found correct is his argument. >> he cited another case where he was -- you know, he ruled one way and all the other judges ruled. the supreme court later -- >> one of the things that's true of all these confirmation hearings is the nominees know a lot more constitutional law, know a lot more about these cases than the senators do.
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and the senators get about two questions in to the details, and the nominee starts telling -- talking about the case in a way the senator obviously doesn't know enough. >> and the senator wants to move on and ask another question because he's out of his depth. >> except on the abortion one, senator durbin did say, jake, to your point, that if you followed that dissent, you'd be adding perhaps another requirement on a woman who was seeking abortion. so at least there was a little bit more. i think we're going to see that down the line. >> which is the root of the issue. if you look at these cases when they're happening in states, it's putting more requirements on the doctors and making it more difficult. so it isn't an overarching ban, which obviously is what a lot of groups talk about and fear, but the fact that pro-life advocates, including my neighbor here, are not outraged by anything he said tells you everything you need to know. >> can i make a point on that? i actually was -- me sitting here listening to judge kavanaugh, i was a little concerned about some of the things he said as a pro-life
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person. that is, you know, he made an extra effort to talk about how casey looked at roe and reaffirmed roe. >> the planned parenthood decision. >> and that's a really big deal. the fact that he went to it over and over. now, that may be a smart strategy on his part, to assure susan collins and lisa murkowski and others, or it may be a signal that many who had concerns about judge kavanaugh is that he's more like a roberts who will chip away at things but not like a thomas who will go right in. we might see that. >> the other thing that interested me -- and whitehouse, as you were saying, was really aggressive today. he wanted a guarantee that he would keep pre-existing conditions in the affordable care act. and we know that there's this
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controversy. and the administration is refusing to defend -- >> and there's also a legal case. >> that starts today. >> right now. >> exactly, it starts today in texas. and pre-existing conditions is clearly one of the things that democrats are talking about on the campaign trail because thaw know what kind of resonance it has. there was whitehouse saying to a potential supreme court nominee, i need a guarantee from you that you're not going to take away pre-existing conditions, which after all is the current law. >> but this is also a top you can i'm actually surprised and a little disappointed the democrats have not focused more on, health care. this is the core issue where there are legitimate questions but also it's a huge political issue. it is the best political issue for democrats. >> he can't answer the questions. >> the point is, there are legitimate questions in a hearing like this about how he would approach this. but at the same time, for people watching at home, they care deeply about health care being taken away. and so i hope that the next
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democrats that come up talk about this quite a bit more. >> very quickly. >> to elaborate a tiny bit, there is a lawsuit that is being argued today in texas where the trump administration and 20 republican attorneys general are arguing for a court to take away pre-existing condition protection from everyone. that's a big deal. >> they're trying to invalidate obamacare. >> and all those other terrible things like staying on your parents' insurance until you're 24. >> they're going after all the other insurance regulations that make this a disaster that it is. >> exactly. >> so yes, they are going after all those things. >> we agree, rick. >> as these cases unfold right now, that explains why he's not going to answer these questions. these are hypothetical questions that may come before the supreme court when he's a justice of the supreme court, and he's going to
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say what other supreme court justices during their confirmation hearings have said. i can't answer that question right now. democrats can press and press and press, but he's not going to answer. >> but they want meme to say tune in, this matters. elections matter. who we nominate for courts matters. this is the issue that they should be doing it on. >> it also helps explain why i think the president today started raising social security and medicare, saying we're going to protect your social security and medicare. everybody understands who's running for office, how important this issue is to the american people. trump started talking about it today because he says, you know, he wants to talk about progressive democrats and what they're going to do. in this hearing, whitehouse knew exactly what he was doing. >> he's not going to protect social security and medicare if the deficit is a trillion dollars a year, which it looks like it's going to be next year. that's another issue we're not going to get to.
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i want to get back to the other breaking news we're following today. the president once again weighing in on the explosive new bob woodward book. he calls it fiction and tries to hit woodward's credibility. in more news, he was asked about claims that the white house staff took papers from his desk to, quote, protect the country. let's listen. >> we have a deal with south korea. i read another phony thing in the book about a trade deal that certain people didn't want me to look at. we've made a deal with south korea. it may be signed during the united nations conference in a couple weeks. the deal is done. it's been done with south korea for a long time. it's been done for about two months. we'll do a ceremonial signing over the next very short period of time. but that was another thing in the book that was just totally false. >> jake, i'm anxious to get your thoughts. this is 24 hours now. the story exploded with the new book. now the president is reacting
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very, very vociferously. >> just to explain to our viewers what he's talking about and what he's actually not talking about, gary cohn, former director of the national economic council, in the book told an associate that there was a document that would have undone a treaty between the united states and south korea that gary cohn felt was important for the national security of the united states. it allowed -- it kept forces and equipment in south korea that would allow the united states to detect the launch of a north korean missile within seven seconds as opposed to 15 minutes from detecting equipment in alaska or near alaska. and that's why gary cohn, according to this associate in this woodward book, takes the document away so trump doesn't sign it because he says it will be bad for national security. i don't know what that document has to do with the new trade agreement, if anything. but that's what president trump is perhaps conflating when he pushes back on it. i don't know if this is going to
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work for president trump just to say it's fiction, it didn't happen, when bob woodward is one of the most respected reporters in america today and has a long track record of covering presidents and writing books that, you know, become the first chapter of history. i'm sure it will work for his base. i'm sure it will work for his supporters, the people who when president trump says don't believe what anyone else is telling you, only believe me, i'm sure it will work. in terms of independent voters, swing voters, i'm not sure that will be effective. >> and jamie, our correspondent who's actually read the book, she got another statement from bob woodward today saying he sticks by his reporting. >> that's the only statement he's made, which is that he stands by his reporting. i mean, all of us who have known bob woodward over the years know how meticulous a journalist he is. and i don't think he's one of these gotcha people who hides things from the people he's interviewing. he will say to you, i've learned this, i've learned this, and i've learned this. what do you have to say about
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that? and maybe that's why the president is so upset that he wasn't interviewed, because he might have had some answers and what his staff was trying to do is protect him. >> we're going to go back to the hearing. senator klobuchar is asking questions right now. >> senator, i'm not going to take a position. that's, in my view, a decision for the committee in consultation or discussion with the executive branch -- >> so you're not going to say whether or not you have a problem with it? >> i'm not -- i don't think it's my role to say one way or another, at least as i analyze the current situation. that's a decision for the committee and the executive branch and the presidential library, president bush's documents ultimately. >> since right now we're not able to review those documents in addition to the 102,000 that the white house has deemed
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theirs that we're not able to see and asserted a privilege that's never happened before in a supreme court nomination hearing, is there anything in those documents or in the staff secretary documents that you think we'd like to know that's relevant to some of the topics we've discussed today? i mean, you must know what's in them. >> before you answer, without taking time off of her time, it's incorrect that committee confidential -- no senators can see those records. all 100 senators can see those records. in fact, we set up separate terminals so people can go there. we haven't had very many people take us up on the offer. >> mr. chairman, not to go into my time either, to respond to you, i wasn't talking about those 189,000 documents. i was talking about the ones that we're not allowed to see at all from the staff secretary time as well as the 102,000 that the white house has exerted -- asserted privilege on that we're not able to see. i'm not even talking about the
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189,000. thank you. >> i stand corrected. >> all right. so again, i asked if there's anything in nothose documents y think would be relevant to our discussion here. >> senator, those documents are president bush's documents, and for the committee and the bush library and the executive branch to negotiate about. as i've discussed, i have 12 years of judicial record, and this is not a new issue. this is an issue that came up in justice scalia's hearing and chief justice robert's experience with the s.g. documents. >> that's solicitor general. i'm talking about though in the white house. >> they're both executive branch documents. there's one executive branch. >> i think one is involving the ongoing solicitor general, but i have just one more question on this line. you've just said that rush decisions aren't always the best in answer to the discussion with
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senator lee. scene y and you think a good judge would grant a continuance to somebody who just received 42,000 documents before the day of the start of a trial. >> sorry. that's a decision for the committee, and i'm not familiar with the circumstances of the document. on the solicitor general documents, i just want to say one thing. with chief justice roberts, it was not active cases. that was four years of his documentings fr documents from the time he was solicitor general, from 1989 to 1993. he's nominated in 2005. it's my understanding those documents -- so my only point is it's not a new issue, but it's also not for the nominee to decide because they're the president's, former president's documents. >> why don't we move on to the executive power issues. yesterday i mentioned your submission to the university of minnesota law review. we thank you for making our law review so famous over the last month or so. in that article, you said that a president should not be subject to investigations while in
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office. you said in our meeting that congress would likely act quickly if the president does something, in your words, dastardly, a word you also used in the article. i'm struggling with the practical implications of that. what about a president who commits murder or if she jeopardizes national security or if he obstructs an investigation or a white-collar crime? how do you differentiate between these crimes when you characterize them as dastardly? >> so i think there's several issues going on in that question, senator. the first thing i want to underscore is that what i wrote in the minnesota law review in 2009 when president obama was president, or becoming president, was thoughts on a variety of topics reflecting -- >> i just want to pick up the tempo a little with my questions because i have so many of them. could we get to that point about the dastardly, if there's a way to differentiate. >> yes, but just to underscore,
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it's real important. that was a proposal to be considered. it was not a constitutional position. i did not take any constitutional position on the issues you're raising. i want to underscore that. if a constitutional question came to me, i would have an open mind and decide that. on your point -- >> but there isn't any clear text in the constitution that speaks to the question. so instead, these are your own recommendations based on your own views and experience. would that be a fair characterization? >> but there are two different things going on. the one is about special counsel investigations, for example, or criminal investigations or civil lawsuits. that's a question for congress to consider whether they want to supplement the protection provided by clinton versus jones, because there was a lot of criticism of clinton versus joan. the second question, getting right to your point, is what is an impeachable offense. that's a decision for you, not for me. >> but i'm just figuring out
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whether we know something is dastardly or not if we can't even investigate it. >> well, i think i'm going repeat, that's a question for the -- you're asking for -- >> i'm asking about your position that you stated in this law review article that a president should not be subject to investigation while in office. >> the dastardly comment -- >> just a second. you're only saying they should be subject to investigation as part of an impeachment and there's no other investigation that could occur? >> no. first of all, a constitutional position on criminal investigation and prosecution. i did not take a position on the constitutionality, period. on the idea that i talked about was something for congress to look at if it wanted. that's point one. point two is the idea that -- what is an impeachable offense. that really is a question for
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the house and the senate. >> let me move on. this is about actual opinions. really along the same lines. and i know senator coons is going to talk to you about the statute. i quote, this is you, under the constitution, the president may decline to enforce a statute that regulates private individuals when the president deems a statute unconstitutional, even if a court has held or would hold the statute unconstitutional. so then you told me when we had the talk in my office that you attempted to clarify your views two years later in the aiken county case. it seems inconsistent to me. so is it the case, your views, as expressed in actual opinions, not law review articles, that a president can just ignore a law and until a court upholds it or that a president can continue to
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ignore a law even after a court upholds it, like you said? >> so ignore is not the concept there, as we discussed when we met. we had a good back and forth on that. the concept is prosecutorial s discretion. that's the concept i referred to, to explain the footnote you're referencing. in prosecutorial discretion, it's obviously firmly rooted. united states versus richard nixon case says the executive branch has the absolute exclusive authority and absolute discretion whether to prosecute a case. that's an exact quote from united states versus richard nixon. then heckler versus cheney says that also applies in the civil context. the limits -- so prosecutorial discretion is well recognized. in other words, the u.s. attorney's office might prosecute gang violence but let low-level marijuana offenses go
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in terms of an exercise of prosecutorial discretion. >> if a court has held a statute constitutional, do you believe that a president should have to enforce it? >> so for example, let's talk about the marijuana laws. those are constitutional, but a u.s. attorney, or the attorney general, could say, we're not going to devote our resources to low-level marijuana offenses. those are perfectly constitutional. >> let me try one other example. the texas case on pre-existing conditions. the administration has taken the position that is unconstitutional, that part of the affordable care act down in the texas case. taking the position that you could actually throw people off of their insurance if they have a pre-existing condition. so let's say that that law is found to be constitutional. could the president choose not to implement the part of the law providing protections for pre-existing conditions? >> senator, that's a pending
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case, so i cannot talk about it. >> okay. this is just my concern because of this expansive view of executive power, where it brings us and where we end up. i want to move on to some consumer issues. in 2016, you wrote an opinion which was later overturned by the full d.c. circuit in which you found the consumer financial protection bureau unconstitutional. the majority recognized that millions of people were devastated by the financial crisis, and they upheld this bureau and we know now in realtime the bureau has helped about 30 million consumers obtain more than $12 billion in relief. but you dissented in the case. i want to talk about the consequences of this legally. i know you focused on the bureau structure. we talked about that. you looked at the relevant history and said agencies like the cfpb amount to a headless
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fourth branch of our government and that they, quote, pose a significant threat to individual liberty, unquote. so does it follow that you think that other independent agencies are also constitutionally suspect? >> so the supreme court is, of course, upheld since 1935 humphries executor decision that the concept and practice of independent agencies. on the cfpb decision, the structure of that agency deviated from the traditional historical practice of independent agencies. >> you think the humphries case that was 80 years ago was correctly decided. >> it's a precedent of the supreme court, and it's been reaffirmed many times. but on that cfpb case, i need to get this out, which is i did not say that the agency had to stop operating. it could continue operating, and it still operates. my constitutional concern was the structure with the single member head, which had never
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been done before for an independent agency of that kind. my remedy would not have been to invalidate the agency at all. it would have been to make that person removable at will and then you could have, if you wanted, amended the statute. >> it also concerns me because other agencies, like say the social security administration, which you note in the dissent, in the opinion, they're also just headed up by one person. so then does it follow that that agency as well would be unconstitutional? >> again, senator, my -- let's go from the back door, which is the remedy, if there's a problem, is not that the agency has to stop operating. the remedy is that the person, a single person would be removable at will instead of for cause. the agency would continue to operate and perform its -- >> but wouldn't have anyone heading it up? >> no, it would have a single person heading it up but removable at will in the case of the cfpb.
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so the agency -- [ protester yelling ] >> i want to turn to what the majority felt about your dissent. i think they recognize that the dissent would threaten many, if not all, independent agencies. i think they specifically mentioned the ftc. i would add other ones like the federal reserve, securities and exchange commission. does it follow that you think these agencies are unconstitutional? >> no, i didn't say anything remotely like that, respectfully, senator. all i was talking about was a single-headed independent agency. >> that's like social security. >> the s.e.c., the ftc, those are the traditional, the nlrb, the fed. all multimember independent agencies. those agencies are all the
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traditional humphries executor agencies. the concern i explained with the single director independent agency goes back to your point about federalist 47, which is if you have an independent agency that's completely unaccountable to congress or unaccountable to congress or the president and it's one person in charge, that becomes an extremely powerful position. >> okay. but social security has been like that for a long time. so my issue is when we were talking about executive power, you talked about how congress has to step in, right. that's a lot of the argument you've made to some of my colleagues. congress has to step in. but in this case, congress stepped in. congress said we had this major financial crisis. that's why we started this agency. we have done this. then you come in, in a minority opinion here, and you say that it's unconstitutional. i would throw another federalist society back at you, federalist quote. you quoted hamilton yesterday from federalist 83 when he said
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the rules of legal interpretation are rules of common sense. >> yes. >> okay. all right. so it just doesn't make common sense to me that we would throw an agency out like that or even the head of it. you're basically putting your judgment in the place of congress. >> but i didn't throw the agency out. i said the agency could continue operating as it was. the only change would be instead of being for-cause removal, it would be at-will removal. there was a judge, not me, on our court who said because of that constitutional flaw, the whole agency had to stop operating. i specifically and explicitly rejected that as a remedy and said, no, the agency can continue operating and doing its important consumer functions. >> let's go to one where you actually did throw out the rules. that's net neutrality, right. that is, in my mind, a bedrock of a free and open internet, allowing consumers and small
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businesses to have an equal playing field. but in u.s. telcom association, in your own opinion, you went out of your way to dissent against the protections. this was the full d.c. court against you. the rules were uphold by a panel of judges appointed by presidents from both parties. and here you relied on something else that you came up with called the major rules doctrine. i know it's been mentioned in a 2015 case, but in claiming that the fcc lacked authority to issue net neutrality rules because they were, in your words, major. so again, it feels to me like congress set up the fcc and fcc is doing their job in a really complex policy matter. they put forward these rules on net neutrality. then you insert your judgment to say they're unconstitutional. so tell me why i'm wrong. >> the major rules doctrine or major questions doctrine is rooted in supreme court precedent, and therefore as a lower court judge, i was bound
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to apply it. it was applied by the majority opinion in the brown and williamson decision. it's the godfather of the major rules or major questions doctrine. justice breyer wrote about it in the 1980s. the supreme court adopted that. the brown and williamson case applied it in the case you referenced, justice scalia's opinion. what that opinion says is it's okay for congress to delegate various matters to the executive agencies to do rules, but on major questions of major economic or social significance, we expect congress to speak clearly before such a delegation. that had not happened, in my view, with respect to net neutrality. i felt bound by precedent, therefore, to apply the major questions of rules doctrine. >> i know in the decision you say you'll know the difference with you see it. i think that's why the other
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judges on the court, appointed by both parties, went with the traditional and presidential view of how to look at this. you use the the 1986 law review article by albeit justice breyer and then the ding v. burwell case. i'm trying to show this pattern where you say, oh, congress should step in and do everything. you're stepping in, in these cases. >> i would say it's a pattern of adhering to precedent. >> okay. well, it seems that the precedent to me, when you look at, for instance, chevron -- and i know the white house touted the fact you've overruled the federal agency actions 75 times, and they said that you led the effort to rein in executive agencies in the press release when you were announced. how do you explain -- what did that mean, you led the effort? >> i don't know what that's referring to. i've upheld agency decisions dozens and dozens and dozens of
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times. we get agency cases, that's what we do on the d.c. circuit. i've upheld them i'm sure in the same range if not many more times. so i think my record will show that i've ruled both ways on those kinds of cases. i don't i have i have a pro this or pro that record. >> one last question in this area. so the major rules doctrine actually raises questions to me about your view of chevron. as you show, it's that 1984 case. you would think it's settled law, but i'll ask you that. courts generally refer to reasonable interpretations of agencies. what would you replace it with if you're not going to uphold it? >> the precedent says that courts should defer to
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reasonable agency interpretations of ambiguous statutes. the whole question of ambiguity has become a difficult inquiry, at least it has been in my 12 years of experience with the d.c. circuit. how much ambiguity is enough? i wrote a law review article in the harvard law review about that problem of judges disagreeing about ambiguity and how much is enough. but i also said in that article that chevron serves good purposes in cases where it's somewhat of an overlap with the state farm doctrine. so statutory terms like feasible or reasonable are terms of discretion that are granted to agencies and that courts should be careful not to unduly second guess agencies. i've written an opinion, american radio relay league, where i made clear that courts shouldn't be unduly second guessing agencies. >> okay. i want to move to campaign finance. those were the documents i received and were able to make
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public. of course, i think think all should be maybe public, the ones that -- and i don't like this committee classification, what happened, but the chairman did allow me to make those public. and in those documents, in one e-mail from march 2002, you discuss limits on contributions to candidates saying, and i have heard very few people say that the limits on contributions to candidates are unconstitutional. although, i for one tend to think those limits have some constitutional problems. i just want to know with the buckley case from '76 being settled law, it seems like you have some issues with those rulings. how do you view the precedent creat creat created by buckley, and would you respect it? >> the buckley divide, as you know, senator, is that expenditures on the one side, congress does not have substantial authority to regulate contribution limits. on the other side, congress does have authority to regulate and has done so.
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with respect to contribution limits, however, there are cases where the contribution limits are too low. so subsequent to the e-mail you're talking about, the supreme court has twice struck down contribution limits, one in a case randall versus -- >> i'm aware of these cases. >> buckley is an important precedent. there's a lot of case law subsequent to those e-mails. mcconnell, citizens united, which fleshes out some of those. >> i mean, my issue is we've had past nominees who said they would honor precedent. then they joined citizens united opinion. when i was hearing your discussion with senator whitehouse in which you talked about how congress should step in -- and they did with the mccain-feingold bill. we tried, and it was struck down basically with citizens united. so that is the problem. we are left with nothing now but a constitutional amendment.
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i personally view this as, you know, law making from the court, the citizens united case. so i'm trying to figure out where you are on this. do you think contribution limits have constitutional problems, and what can congress actually do to rein in the flood of money? >> as a d.c. circuit judge, i've upheld contribution limits in two important cases. one ruling against the rnc in rnc versus fec where it was challenging limits on contributions to political parties. i rejected that challenge. in another, bloomen versus fec, contributions by foreign citizens to u.s. election campaigns. i upheld that law. >> let's just talk about that case. your opinion left open the possibility of unlimited spending by foreign nationals in the united states on issue advocacy. the same kind of activity that we saw by the russians in 2016. in fact, a russian company facing charges brought by special counsel mueller actually
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cited your opinion in arguing to have these charges thrown out. does that concern you at all? >> our case dealt with contribution limits. so that's what i was opining on in that case. so i'm not sure that there are -- the state of the law on the expenditure limits was not before us in that case. so i don't want to opine on expenditure limits. you should know that opinion was cited by -- >> well, i don't know if it was cited -- well, i don't want to talk about a pending case. my case i upheld. importantly, i upheld limits on contributions in the rnc case and the bloomen case, and the supreme court has upheld contribution limits generally but struck them down when they're too low in cases like randall and mccutchen. >> okay. in light of the recent indictments, do you stand by your interpretation of the bipartisan campaign reform act in this case -- in that case,
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the bloomen case? >> i'm not sure of the question there. >> we can go back to it on the second round. looking forward to it. okay. anti-trust. senator lee and i run the anti-trust subcommittee. as you know in recent years, we talked about this in my office. the supreme court has made it harder to enforce our anti-trust laws in cases like legion and most recently ohio v. american express. this could not be happening, in my view, at a more troubling time. we're experiencing a wave of industry consolidation. annual merger filings increase by more than 50% between 2010 and 2016. i'm concerned that the court, the roberts court, is going down the wrong path, and your major anti-trust opinions would have rejected challenges to mergers that majorities found to be anti-competitive. so i'm afraid you're going to move it even further down that
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path, starting with the 2008 whole foods case where whole foods attempted to buy wild oats markets. very complicated, so i'm going to go to the fwguts of it from opinion. the majority of courts and the -- what happened here is republican majority ftc challenges the deal, and then you dissent. you apply your own pricing test to the merger. my simple question is, where did you get this pricing test? >> well, i would have affirmed the decision by the district judge in that case, which allowed the merger and the district judge, judge friedman, appointee of president clinton's to the district court, and i was following his analysis of the merger. case is very fact specific, really turns on whether the larger supermarkets sell organic foods or not. >> but where did you get the pricing test is what i want to know. you used different tests.
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i'm trying to figure that out, what legal authority actually requires a government to satisfy your standard to block a merger. i think what i remember in our discussion, you cited these nonbinding horizontal merger guidelines that you used to come up with this test. >> well, you're looking at the effect on competition and what the supreme court has told us, at least from the late 1970s s to look at the effect on consumers and what's the effect on the prices for consumers. the theory of the district court, judge friedman in this case, was that the merger would not cause an increase in prices because they were competing in a broader market that included larger supermarkets that also sold organic food. the question was really, is there an organic food market solely or is there a broader supermarket market. that's what the case -- >> i know. i was just trying to get to where that new test came from. so in the second case, you also
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dissented in the anthem case last year. your opinion would have allowed a merger between two of the four nationwide health insurance providers, which was eventually blocked because it would lead to higher prices for health care in the long term in what was viewed as poor-quality insurance. here you went a step farther than whole foods. instead of just trying to raise the bar on what the government would have to prove to block a merger, you also tried to lower the bar for merging companies trying to justify their deals. your opinion suggests you would lower the bar for merging companies that are trying to prove their deals with not harm competition. does that represent your views when it comes to mergers? >> it's a very fact-specific case. the market in question there were two health insurers that were not selling health insurance in the downstream market but were acting as purchasing agents for employers in the upstream market where
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they negotiated prices with hospitals and doctors. so the theory, at least as i understood it, which i agreed with, is that by having a stronger purchasing agent, they would be able to negotiate lower prices from hospitals and doctors for the employers. i pointed out at the end of my dissent, senator, that there might be a problem in the upstream hospital/doctor market. i specifically said i would have sent it back to the district court for analysis of whether the merger was a problem. it's a -- >> but you did suggest that the court should disregard two cases that have been widely relied on for more than 50 years in anti-trust. do you think courts now applying these cases are wrong to do so? >> i think the supreme court in the 1970s moved away from the analysis in those cases because
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those cases focused on the effect on competition. i mean, on competitors, not competition. in the 1970s, the supreme court moved to focus on the effect on competition, which in turn is really consumer -- what will be the effect on consumers. >> senator cruz. >> thank you. just one second. >> yes, proceed. >> this anti-trust issue is very -- as you know, very dense. but again, i'm very concerned about what's going on with these cases nationally. then when i looked at these two cases, it appears to me that you'd go even further. and i think we need less mergers, not more. >> can i add one thing? when i referred to the overlap of chevron and state farm, that's when i was talking about words like feasible and reasonable. i just wasn't sure i was clear on that. >> thank you. >> senator cruz. >> thank you, mr. chairman. welcome back, judge kavanaugh. >> thank you, senator. >> thank you again for your
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service. before i get into questions, i want to take a minute to recognize and thank the outstanding work at this hearing by the capitol police in terms of in a calm and professional manner dealing with the unfortunate disruptions we've seen and maintaining an environment where this hearing can focus on the record and substance of this nominee. so thank you for the tremendous work that the men and women here are doing. >> mr. president, i think we'd like to second that sentiment on our side. >> thanks, both of you, very much. i've expressed it to many of the policemen individually as i see them. proceed. >> judge kavanaugh, let's start with just a general question. what makes a good judge? >> senator, a good judge is independent, first of all. under our constitutional system. someone who's impartial, who's
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an umpire, who's not wearing the uniform of one litgator or another, one policy or another. someone who reads the law as written, informed by history and tradition in precedent and constitutional cases. the law is written, informed by the cannons of construction that are settled in statutory cases, that treats litigants with respect, that writes opinions that are understandable and that resolve the issues. i think civility and collegiality help make a good judge. a good judge understands that real people are affected in the real world. the litigants in front of them but also the other people affected by the decisions the judge decides or the court decides in a particular case. a good judge pays attention to precedent, which is on constitutional cases, of course rooted in article 3 and critically important to the
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stability and predictability and reliance, interests that are protected by the law. so there are a number of things that go into making a good judge. a work ethic. it's hard work to dig in and find the right answer in a particular case. i think that's critically important as well. judicial temperament. there are a lot of factors that go into it, and that's -- those are some of them. i'm sure there are more. >> one of the things i was looking at, it's striking, both the overheated rhetoric we have heard from some of our democratic colleagues, and also from some of the protesters over the last two days. i took a look at your record compared to that of judge merrick garland. judge garland, of course, was appointed to the d.c. circuit by bill clinton, and he was
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president obama's nominee to the u.s. supreme court. what i found that was striking is that in the 12 years you've been on the d.c. circuit, of all the matters that you and chief judge garland have voted on together, you voted together 93% of the time. not only that, of the 28 published opinions that you've authored where chief judge garland was on the panel, chief judge garland joined 27 of the 28 opinions you issued when you were on a panel together. in other words, he joined 96% of the panel opinions that you have written when he was on a panel with you. the same is true in the reverse. of the 30 published opinions that chief judge garland has written on a panel, you've joined 28 out of 30 of them. over 93% of those opinions. what is your reaction to those
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data and the level of agreement? >> well, i think we're trying hard to find common ground and to, as i've said before, he's a great judge, a great chief judge. he's very careful and very hard working. we work well together and try to read the statute as written, read the precedent as written. he's a judge who does not -- like i try to be as well, a judge who's not trying to impose any personal preferences on to the decision but take the law as written. that's what i've tried to do in those cases, and that probably explains some of that. i think it also goes back to -- i think judges are distinct from policymakers. i think that shows up when you dig into the actual details of how courts operate and go about their business.
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you of course know well, senator, from all your arguments and seeing judges decide cases in realtime. i think those statistics reflect the reality of how judges go about their business. i've said several times, i think of the supreme court as a team of nine. we try to be a team player on a team of nine. of course there are going to be disagreements at times. i don't want to overstate, but if you have that mind set of where a court, without sitting on different sides of an aisle, without being in separate caucus rooms, trying to find what the right answer is, and i think there is a right answer in many cases, and maybe, you know, a range of reasonable answers and some others. i think that's what those statistics reflect to me. >> so you talked about the difference between your own how would you describe a
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judicial activist? >> i would describe a judicial activist as someone who lets his or her personal policy preferences overnight the best b interpretation of the law. so a judge who strikes down a law as unconstitutional when the text and precedent don't support that result or a judge who upholds the law as constitutional when the text and precedent suggest that the law is unconstitutional. so, too, in statutory cases. when a judge does not stick with the compromises that you have reached and written into the text of the statute passed by congress and signed by the president but thinks the judge can improve on it in some way or maybe picks a snippet out of a committee report and says, well, i agree with that view and the committee report and super impose that on to the text of
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the statute passed by congress. that's to me the textbook definition of a judicial activist adding to or subtracting from the text as informed by the precedent. >> you have written a number of opinions addressing separation of powers. why does separation after powers matter? why should an american at home watching this on cspan care about the separation of powers? >> people should care about separation of powers because it protects individual liberty. it is really the protectional foundation of individual liberty. we think of the first amendment, freedom of religion, freedom of speech as foundational protections of individual liberty but as justice scalia used to say, the old soviet constitution had a bill of rights but they didn't have a separation of powers system to
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help protect those individual liberties. so it works in two ways i think. more than two ways. first, the independent judiciary that helps enforce those rights. secondly, the whole structure as i have explained tilts toward liberty in the sense that you start with a system. it's hard to pass a law to affect what you do or cannot do. hard to get a law through congress and that's by design. there's a -- the bicameralism principle, house and senate and the president was designed to prevent the passions of the moment enacting a law based on the passions as opposed to a more difficult process. that helps protect individual liberty. then after you pass a law the president has as i was discussing with senator klobuchar executive branch has prosecutorial discretion, how and when to enforce particular
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laws. who is protected by discretion? ultimately it protects individual liberty and then even when the congress has pass add law and the executive enforced a law that doesn't mean you go straight to prison. you go -- if you're charged with a crime you go before an independent judiciary. and just to add further protections for liberty, you have a jury protections that are in the original text of the constitution and reflected in the bill of rights. so in check after check after check the constitution tilts toward individual liberty. the separation of powers also ensures that there are checks on branches so what do we do, for example, members of congress don't serve for life. you have to run for re-election. and that's a check, again, to help protect individual liberty, to help ensure accountablility, as well. the document's chockful with
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protection of individual liberty an ultimately why the separation of powers matters. as much as the individual protections that are in the bill of rights and also in article 1 section 9, article 1 section 10 of the original constitution. >> how about the doctrine of federalism? that's a matter you haven't encountered as much on the d.c. circuit. but can you share why federalism matters? and again, why americans watching this hearing at home should care about the principles of federalism? >> federalism matters for several reasons, senator. again, it helps further individual liberty in the sense of additional protection. so let me give you an example. if the u.s. constitution only protects the fourth amendment only protects unreasonable searches and seizures up to a certain line it's possible that the state constitution will protect you further under that or your state legislature might
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protect you further so further protections of individual liberty. federalism also operates in a different way. a laboratory of democracy. in the sense of experimentation. around the country. that's not always the same views in texas that there might be in california. for example. on particular issues. and so you have different laws -- >> thankfully. >> yes. and different laws in those states. and also, i think the federalism serves more general idea of the government that's closest to you for most of your day-to-day activities. my wife's, of course, in local government now as the town manager but federalism for the things that affect you on a daily basis, the paving of the roads, the leaf collection, the trash collection, the local schools which is probably the most direct impact that many people have with the government, the local court system. my mom, of course, was a state trial judge. the whole system of state
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government is most people's interaction with government. and federalism in that sense assures accountability because you know better usually the local and state elected officials than you do -- and therefore make the views known on whatever governmental issues is of concern to you. for example, the schools is a classic one. >> so what is the importance and the relevance of the tenth amendment? >> the tenth amendment protects federalism in the sense of ensuring that the states have independent sovereign -- they make clear which is also clear from the structure but reinforces the idea that the states are sovereign entities that have independent authority under the constitution and that they have the status of separate sovereigns under the constitution. so you're solicitor general of
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texas and represents the state of texas in many case where is the sovereignty of the state of texas to pass its laws and enforce its laws was critical. and the sovereignty of the individual states is important for the people. again, both for the accountability, the local government, and also, for the protection of individual liberty and i think the tenth amendment underscores that. it also makes -- it helps underscore something else which is the states can't be commandeered by the federal government. commandeering doctrine of the supreme court which recognizes that and this is from the structure as a whole and underscored but the federal government can't order states to do certain things that the states themselves have not chosen to do. and so, that's an important part of the federalism principle is recognized by the supreme court and that comes out of the constitution, as well. >> what do you make of the ninth
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amendment? robert bork described it as an inkblot. do you share that assessment? >> so i think the ninth amendment and the privileges and immunities clause and the supreme court's doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the supreme court now which is that the supreme court precedent protects certain unenumerated rights so long as the rights are as the supreme court said in the gluxburg case rooted in history and tradition and justice kagan explained this well in her confirmation hearing that it's quite important for allowing that protection of unenumerated rights rooted in history and tradition which the precedent definitely establishes. but at the same time making
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clear that when doing that judges aren't just enacting policy preferences into the constitution. an example of that is the old pearce case where oregon passed a law that said everyone in the -- in the 1920s. everyone in the state of oregon -- every student to attend a public school and a challenge was brought by that by parents who wanted to send their children to a parochial school, religious school. and the supreme court ultimately upheld the rights of the parents to send their children to a religious, parochial school and struck down that oregon law and one of the foundations of the rights doctrine that's folded into the test and rooted in history and tradition. so how you get there is -- as you know well, senator, there's stacks of law reviews written to the ceiling on all of that, whether it's privileges and immunities, due process or ninth
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amendment but i think all roads lead to the test as the test of the supreme court to settle on as the proper test. >> let's talk a little bit about the first amendment. free speech. >> this is cnn breaking news. >> good afternoon. i'm jake tapper and you're watching "the lead." we are -- you've watching day two of the confirmation hearings of brett kavanaugh, the president's pick for the supreme court. and we're going do go back to that right now. >> policy issues and to speak about, for example, who you want to support for elected office. is a critical part of the free spee speech principle. but it's broader than that. there's idea that there's no one truth necessarily. thne

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