tv The Daily Briefing With Dana Perino FOX News September 5, 2018 11:00am-12:00pm PDT
former president. that's one caveat on that. >> fair caveat. is t >> well, of course, because under the precedent united states versus richard nixon said two thipgs, one, executive privilege is constitutionally rooted. prosecutor argued there was no such thing as executive privilege and the supreme court rejected that argument and held executive privilege is rooted in separation of power and article two -- >> i'm asking doesn't have much to do with you, it goes back to a point we were talking about earlier in the hearing, which is that we have received hundreds and hundreds of pages of documents of your record that look like this. they both say "committee confidential" across them at angle and across the front they
say "constitutional privilege," as a member of senate, this is not a question, i'm speaking to my colleagues, i find myself in quandary about being denied those particular documents, i cannot find any assertion of the privilege these documents just suddenly appeared and somebody had put constitutional privilege on the page and wiped out all the text that was on the page. and my understanding is that there is ordinarily a process for getting to that determination that allows for ultimately judicial review. and we have failed to get subpoenas out of the committee for documents, we can't trigger it that way and no apparent assertion of executive privilege i can find in the record of how this particular paper got here. so i just wanted to establish some of the basic ground rules of executive privilege with you, because i think we agree on that, that is basically commonly agreed and put that in the context of what we are looking
sxat particularly with respect to chairman leahy questioning earlier, if some documents he's looking for have now been protect by nonassertion assertion of executive privilege, we have a problem, it is a continuing problem in the committee. we've had other witnesses come and do nonassertion assertions of executive privilege, so i'm sorry to drag committee business before you, but i think it is important we try to get this right. >> can i make one aden dum based on my experience of time, i don't think formal ark certion occur until a subpoena, from my time -- >> not being able to subpoena -- up the process, yes indeed. theuntil a subpoena, from my time -- >> not being able to subpoena -- up the process, yes indeed. theoccur until a subpoena, from time -- >> not being able to subpoena -- up the process, yes indeed. the role of federal society in bringing you here today has been of interest to me, as you know, we spoke about it quite a lot when you and i met in my office.
mr. mcgonn, who is sitting behind you, you can see him over your shoulder. mcgahn. has said federal of society was in-sourced into the white house to make these recommendations specifically to make the recommendation that you should be the nominee. you have said this regarding president bush. that he thought it was and i'm quoting here, "improper to give one group, especially a group with interests in many issues a preferred or favored position in the nomination process." those were your words, speaking i guess to the federal society national lawyers convention. on another occasion, you wrote a draft speech for attorney general gonzalez to deliver to
the federalist society and you said in that speech, it is a matter of constitutional principle, it is simply inappropriate, we believe, to afford any outside group a quasi official role in the president's nomination process. how do you square those two comments about the role of the american bar association and the nomination process with the role of the federalist society and your nomination process, assuming that mr. mcgahn was speaking accurately when he said they about been in-sourced to the white house for this process. >> ki speak to the ada part of that. president bush, in 2001, had to make a decision of how the ada, should play its usual rating role with respect to nominees. and the aba takes files ameca briefs and policy positions on issues and therefore, after some deliberation, it was decided
that there was nothing wrong with the aba rating the nominees, but to give an organization that files ameca's briefs and takes position positions a preferred role in the constitutional nomination process was unfair, in some way necessary favoring -- >> the affair description of the federalist society role in your selection as the nominee to say that it was preferred over other groups? >> well, my experience was when justice kennedy retired on the wednesday, mr. mcgahn called me later that afternoon, said, we need to talk, on friday. he came over to my office on friday. -- evening or late afternoon, we talked for three or four hours, interview and going through the usual kinds of questions you would go through when embarking on a process like this. then i met, interviewed with the president, on monday morning. >> is it your testimony that you don't know what the role of the
federalist society is in your selection? >> my experience of my personal experience in what i know is that president trump made the decision, for starters. president trump made the nomination. i know he, as i smaned -- explained yesterday, he spent a lot of time in those 12 dayos this issue and i was aware of that. i also know that mr. mcgahn was directly involved with me and spent a lot of time on it and i also know that the vice president -- >> you have no knowledge to share with us today about the role of the federalist sxoet how they were in-sourced into the society, that was a mystery to you, as well as to us? >> i'm not sure what mr. mcgahn meant by that comment. i think fad -- federalist society members, lawyers and administration are federal society members, it should not be a surprise that -- it is an
organization -- >> leonard leo's role from the federalist society? >> i don't know. >> okay. >> i don't know the specifics. >> let's go from specifics to generals and let me put up a graphic that shows some of the folks who fund the federalist society. it's a pretty significant group of people who tend to share very conservative and pro-corporate points of view. it reflects that at least 14 of the donors are actually anonymous, which is a very unfortunate part of our current political world, actually probably more than that because donors trust here as an organization who purpose is to -- so that recipient of funds can report they got money from donor trust, rather than the
true party at interest. we don't know how many anonymous money flowed through them. but i would contend that this is a pretty strong group of right-wing conservative pro-corporate funders. and presuming that to be true, should that give you or anyone in this process pause that groups like this may have had such a significant role in selecting you to be in this seat today? >> senator, mr. mcgahn, was the one who contacted me. i interviewed with him and the president. i know the president was on the -- i'm the president's nominee, he was directly involved in making that decision, i'm sure he consulted with mr. mcgahn and others, widely to get input, very widely
to get input on at least the people who were the finalists. so that part of it, my 12-day experience, was with the white house counsel's office and the president and vice president, too. >> okay. >> and i also don't -- i'm not familiar -- >> whatever the rule is in any federalist society is in all this and there is plenty of reporting, we don't need to litigate that between you, you don't know of what you testified and that is fine. -- >> my process, again, yes. >> but you are fairly familiar with the process generally because you used to run it in the bush white house or have a significant role in it, process of judicial nomination selection, judicial nominee selection; correct? >> i -- >> inside that machine. >> i did not run it, judge gonzalez when i was in the counsel's office was the counsel. >> you have been inside the process. >> i have been inside the process, yes. >> so the next thing that
happens going forward is that we see the judicial crisis network showing up and they spend millions and millions and millions and millions of dollars to run ads urging senators to support you. now i don't know whether we can show that those were the same funders because they are engaged in as you know dark money funding. they don't remember their donors. but i'd be prepared to make a very substantial bet that there's enormous overlap between the funders of the judicial crisis network compain campaign for your nomination and federalist society group to the extent we're aware of it since so many of them are anonymous. hypothetically, should the american people have concern about the role of very, very big
spenders and influencers doing things like being involved in the selection of a supreme court nominee and running dark money campaigns to support the confirmation of a nominee? is there any cause for concern as general proposition? >> there are a lot of prem sis i'm not sure about. >> i'm not asking you to accept the prem sis as true, pito thet cal, if there were very, very significant, big special interest funding behind the organization that was responsible for selecting you and recommending to the president that he nominate you and again from a very similar group, in supporting the dark money campaigns that are being running on your behalf for your confirmation, would that be a matter of concern or is that all just fine and we shouldn't care about getting the answers? >> two things, senator.
one is i described the process i went through with mr. mcgahn, the president and the vice president. >> yep. >> and the selection and that is what i know about my process. two, on the ads, there are a lot of ads against me, as well. and i've seen those. you know, our family has seen those and then there are ads for me, and we've seen those, too. chief justice roberts said it is a free country and this are ads for and against -- >> do the citizens know who they are, who is funding the ads as matter of citizenship? >> i think that is first and foremost a policy question for the congress to decide on what disclosure requirements it wants to put in and if those disclosure requirements were put in or state governments could try to make disclosure requirements, i think some tried and then undoubtedly be challenges to that and first amendment implications of that and that would come to a court. i would keep an open mind on
that case under the precedent, first amendment law and would think about that. the policy question, i think, is really for congress in the first place to determine, assess, study, exactly what kind of disclosure requirements should be put in place. >> i understand the potential hazard there is that the unleashed power of unlimited political dark money then becomes like a ratchet, the obstacle to solving that problem and i hope you can understand that as a matter of political principle. >> i do understand the concerns about money in the political system. when i worked for -- in the time it takes all of you and when i worked for president bush in the 2004, 2003 and 2004 time frame and how many fundraisers he had to do and going back to the september 11th point and time and burden on the presidency, he
had to do a lot of funderationing. >> it has gotten easier, you can set up 501 c-4 and drop tens of millions of dollars in and like that, the public doesn't know who is behind it, only very few people are in on what the deal is. so it has gotten easier since president bush, but not better. >> well, i think for some members, particularly in the house, if you are running for re-election and a third party group comes in against you, and you have to go out and fundraising and spend more time, as far as i concern, part of the concern over year system generally the time that each of you has to spend and the members of the house have to spend sglchlts let me continue on through this problem of funders. on the court on the dc circuit and potentially on the supreme court, you will often see cases brought by groups like for
instance the pacific legal foundation. are you familiar with that group? >> um, i've seen briefs by the pacific legal foundation. >> do you know what they do? >> i'll take your description. >> okay, my description is that they get money from right-wing conservative and corporate interests and they look for cases around the country that they believe they can use to bring arguments before the court. i argued against them in the supreme court at one point they came all the way across the country to the shores of winnepag pond, rhode island, to hire a client whose case they could take to the supreme court with a purpose to make a point. and they are not alone in doing this. there are a number of similar groups who perform this service.
and it causes me to think that sometimes the true party and interest is actually not the named party before the court, but rather the legal group that has hired the client and brought them to the court more or less as a prob in order to make arguments trying to direct the court in a particular direction. is that an unreasonable concern for us to have about the process? >> senator, i think there are public interest litigation groups spanning the ideological spectrum that look for cases to weigh in on as ameca's briefs and there are also of course, have been historically, you look for as i understand it, people try to identify suitable plaintiffs to challenge and this again is across the entire
ideological spectrum. >> what are the signals it has gotten out of hand? there is something rotten in denmark? >> interesting question, senator, important one, not one i think i have a great answer to. >> let me propose one thought to you, the supreme court at least should fix rules on who the ameca are who show up and provide disclosure who is behind them. supreme court requires disclose who pays for the brief. the brief itself is not a very big expense, very powerful interests can come in behind amicus group like citizens for peace and prosperity and puppies and nobody knows who is really an interest. so that would be one thing i think would be -- >> can i -- >> another thing that is a concern, i would think, when you see special interest groups rushing out, trying to lose cases, in order to get before a friendly court, it really seems
improbable somebody who has tried cases and who has been around courtrooms a lot and who has seen a lot of litigation, a lot of great litigators, i have never seen anybody once try to lose a legitimate case. so in the wake of justice alito's signalling about what then became friedrick and janis, to see these groups rush out and ask the court to rule against them so they can get hot foot up to the supreme court, where they expect a good outcome, to me, this is just something that doesn't seem right about that, that seems a little bit like foe litigation, there is something else going on other than real parties having real arguments and the supreme court ultimately settling properly prepared real disputes. do you have any concern about the optics of people rushing to
lose cases below to come before what they think is a friendly supreme court? does that seem just a little bit odd? >> i will -- acknowledge -- >> [yelling in the background] -- >> acknowledge, senator, i'm not entirely familiar with that phenomenon. i would be -- >> i might follow up with you with a question for the record to get more deliberate thoughts about it. >> and on your ameca's thought, interested in your proposal and certainly if confirmed, i would -- >> here is the concern, you know perfectly well that the court depends on as much of anything on its reputation. you don't have a purse and you don't have ana aurm, you stand on your reputation in the judiciary and you must not only act justly, but be seen to act
justly and what i've laid out is a scenario in which very big special interests have a significant role in funding the group that i believe and much reporting says is responsible for getting you to the top of the greasy pole of -- [clapping] -- nominee selection and that the same funders are behind the judicial crisis network operation that is politically pushing for you. [yelling in the background] >> senator white house, we'll add one minute to your time. >> [yelling] -- >> that some portion of the supreme court docket is made up of strategic cases, rather than real litigation in which somebody has gone out to find an appropriate popular, hire the client, bring them in. by the way, when they are done
with them, they fire the client unceremoniously in my experience. >> uh-huh. >> when the proper case comes up, you see this flood of special interest ameci with terrible transparency into who was behind them n. one case, we tracked one of these big funding groups behind 11 different amicus briefs, the whole amicus thing begins to have a really rank odor to it, the end of the day, when things start to go hay wire in my view, when you go back to 5-4 decisions i talked about yesterday, i think is the most heartbreaking thing that i experience in my political life. i used to argue in front of appellate courts. it was what i did, not at your level, but in front of the first circuit a lot, been in front of the supreme court once, rhode island supreme court more than i can remember, i kind of thought i was a reasonably good appellate lawyer. and the idea that our supreme
court is deciding as many as 80 cases under justice roberts on a pure partisan divide, i think that has a real signalling problem and i hope that you'll at least consider that that is something the court needs to cure rather than make worse in order to continue having its credibility. i think 80 cases in which all the republicans go one way and can't bring a single democrat appointee with them, that is a tough data point. and then when you look at that tough data point and you see that more than 90% of those cases, if you look behind at the outcome, it had a big, one of the interests that i mentioned, very, very important to big special interests that were implicated and then when you look at the win/loss rate in the cases and it is 100%, 100% for this crowd of big special
interests, and then here is where you come in at the understand. this is the roberts five majority in the 5-4 cases where the conservative groups have come in to make their pitch. they have won 92% of the time in those 5-4 cases. if you figure throwing a couple long balls like hail marys and maybe that is the 8%, that is a hell of a record. then if you look at your record on the dc circuit, where conservative groups come in, you line right up. 91%, 92% and i think when you put the whole saga together from the big special interests lurking behind the federalist society to big special interest funding, the judicial crisis network to the big special interests behind the pacific law foundation and washington law foundation and this little array
of i would say strategic litigators who are funded by corporate interests and right wing interests and ameci, we don't know who is behind them and then you see this result, that is a tad low, that is alarming one for the supreme court. i would urge you to think hard about whether that is the direction you'd want to continue to go as an associate justice of that court because at some point, those numbers catch up with you, at some point, as i said yesterday, pattern is evidence of bias. >> senator, a couple thoughts. first, on the amicus briefs, i pay attention to the quality of the argument and the brief, not the identity of the parties on them. i take your point on disclosure, be interested in the specifics of anything you are talking about about disclosure requirement for the supreme court. two, i do believe deeply in the
idea that we're a team of nine and need to be working together and i take the point, too, it is very important if i'm confirmed, that i work with as best i can, and i will, to maintain the confidence of all the american people and the independence and impartiality of the supreme court at all times. i'm aware we ultimately -- [yelling] >> i'm aware everything i do, if i were to be confirmed, would help effect that, how i decide, what i write, in opinions, how i treat litigants at oral argument, where i teach, where i speak, everything goes into how i behave, what i do on my volunteer time, everything goes into the impressions of me as one part, if confirmed of the supreme court and take very
seriously your broader point about maintaining confidence of all the american people and integrity and independence of the supreme court. i appreciate that broader point. [yelling] >> my -- my time is expired, chairman. there will be a second round; correct? >> there will be. happy to give you additional minute, hutwo additional interruptions, if you'd like. >> just to make a final point, actually i think this is not an off-shore storm, it has made landfall, when you see polling that shows that 49% of americans think a corporation will get a fairer shot in the united states supreme court than an individual, seven times as many think it is the other way. now, you still have a few to work with who are undecided on that question, but a fact about half the american people already believe corporations will be
treated more fairly in the united states supreme court than human beings will, and the alignment of that with the facts that i have shown you about the supreme court's record of 80 partisan decisions, 92% involving big corporate special interests and 100% win rate in those cases, i think we're at a tough place right now and really need to get away from that. so thank you. >> thank you, senator whitehouse. judge kavanaugh, i want to get back to a couple questions that my colleague, senator whitehouse was asking a minute ago. just to be clear, did anyone from the federalist society contact you about the vacancy after justice kennedy made his announcement that he would be stepping down from the court? >> no. and during the campaign of president trump, as i recall, he came out with two different
lists, two different lists of possible supreme court nominees. the first list had 11 names on it, the second list had 21 names on it, included the previous 11. there were reports at the time that some outside groups had had involvement in that, were you involved in the first list? were you included in the first list? >> i was not. >> were you interesteded in the second list? >> i was not. >> okay, so you were -- you became under consideration ome after president trump took office; correct? >> that is my understanding, that is when i became identified. >> and after he was staffed up, after he had his own staff? >> we'll take you out of the hearing for a minute, president trump weighing in on news of the day from the oval office. >> he's with amir of kuwait meeting this afternoon, weighing in on the woodward book. here is playback. check it out. >> president trump: thank you.
appreciate it. >> president trump: i am. i'm happy with the kavanaugh hearing. i saw incredible answers to complex questions, he's outstanding intellect, an outstanding judge. he was born for the position. i heard as long as 10 years ago people were saying he should be a supreme court judge. i didn't know him at the time, i was hearing from friends from washington and other places saying that brett kavanaugh should be a supreme court judge some day and i'm honored that i gave him the chance. i've watched his remarks, i've watched his performance, his statements and honestly, they have been totally brilliant. i think the other side is grasping at straws and really the other side should embrace him, you're never going to find better in terms of talent or intellect than what have you in
brett kavanaugh. [speaking at one time] >> president trump: oh, yeah, sure. the book, you mean the book? the book means nothing, it is a work of fiction, already judge mattis has come out very, very strongly and i think you know general mattis, he does what he wants to do, very independent guy. he was insulted by remarks attributed to him and came out with a strong statement, i assume you read it, hope you read it last night. general john kelly, same thing, insulted by what he said, he's right here, insulted, he couldn't believe what they said and he put aught a very, very strong statement and many others and other statements are coming out. the book is a work of fiction, look back at woodward's past, he likes to get publicity, sell some books, we've done more as administration than any other administration in less than two years tis incredible, we will soon be approaching two years,
there is no administration probably and you folks have generally acknowledged this, that has done more work. when you look at tax cuts, regulation cuts, supreme court justices, the court system generally and so much more, even if you look at the healthcare programs that we're passing and all of the things we've done, we're saving social security, the democrats will destroy social security. we've saving medicare, democrats want to destroy medicare. if you look at what they are doing, they are going to destroy medicare. we will save it, keep it going, we're making it stronger, making social security stronger, we're making our whole country stronger. alla you have to do is look at the achievements, i was honored when without my even knowing about it, statements were put out by general kelly, by general mattis, highly respected people by everybody, including yourself, and the book is a work of fiction. it's a -- really, if you look at
it, it was put out to interfere, in my opinion, with the brett kavanaugh hearings, which i don't think it's done. so many people have come out against it, peep they'll have been written out, said, i never said that. rudy giuliani is insulted by the book and what was stated in the book. we run a strong white house, no question about it, we are doing things nobody else has been able to do. our country is stronger now than it's ever been and short period of time $700 million being spent on the military and next year 716 billion, we will actually be far stronger than we've been and that is what we need to be. thank you very much. we have a great relationship. i have a great personal relationship with the amir and
kuwait is a place i've known for a long time, i have many friends that live in kuwait and frankly in washington and new york mostly, i know and i've known for a long, long time, very, very fine people, relationship and bilateral relationship is very, very powerful, very strong. and they view us as place where they have done very well and like to invest their money in the united states and we like that. [speaking at one time] >> president trump: canada is meeting with us right now as we speak, we have to make a fair deal with canada, they charge tariffs of 300% on dairy products, a lot of people never understood. they have walls up against us doing business in canada, yet they come and do business with us and we can't let that happen. look, we have a very strong position and we are the one that people want to come in and take advantage of. they have been taken advantage of it, along with it, i'm not
blaming canada, i love canada, love the people of canada, but they and other countries have been taking advantage of the united states for many years and this is a president that has stopped it. we've made a deal with mexico and mexico's been terrific to deal with, including the new president, who i spoke with and i think we're going to have a very good relationship with mexico going forward and the deal is much more fair deal between the united states and mexico because nafta goes down as one of the worst trade deals in the history of our country. it emptied out millions of jobs, emptied factories and plants all over the united states and it was very unfair deal and a very foolish deal and in fact you could say a very stupid deal for the united states to make. we are straightening out these horrible trade deals we had 4.1 gdp, just raised to 4.2, nobody thought that was possible. when the trade deals are fixed and made fair, gdp will go even high sxer potentially much
higher than that and if you go back to election and go back to campaigning, nobody ever would have said that was possible, except me and maybe a few others that believe in me. thank you all very much. [talking at one time] >> president trump: anything is possible. anything is possible. anything is possible. [talking at one time] >> president trump: what? what? north korea? did you say syria? >> yes. >> president trump: i think it is a very sad situation and in depth and the problems, what is going on there, it is being surrounded and they feel they have 35,000 of their enemy there and yet you have three million
people living there and i just tell you that they will hopefully be very, very judicious and careful because the world is watching, that cannot be a slaughter. if it is a slaughter, the world will get very, very angry and the united states will get very, very angry, too, okay. i am watching that very closely, so it is surrounded right now and the provence and it is surrounded by a lot of people with aa lot of weapons and these are innocent people. you have three million, at least, innocent people there and you have to be very, very careful and the world is watching and the united states is watching very closely. thank you very much, everybody. [speaking at one time] >> press, let's go. >> president trump: not at all.
no, the book is fiction. i heard somewhere they said the assassination of president somebody of the united states never even discussed, the book is total fiction, just like he wrote in the past about other presidents. you look at what he said about president bush, what he said about president obama, big scandalous thing, lasted about a day, never contemplated nor would it be contemplated and it should not have been written about in the book. it's just more fiction, the book is total fiction. [speaking at once] >> president trump: thank you very much. >> make your way out. let's go. >> president trump: thank you very much. >> president trump at the oval office with the emir of kuwait. the reporters were yelling questions. the president was taking the questions again and again calling the bob woodward book
total fiction and praising brett kavanaugh for his performance. >> he said he watched the hearings and believes the democrats are grasping at straws to make their point necessary this hearing, we'll watch more this afternoon as we get ready for the big names. >> senator mike lee questioning a protester now piping in, senator mike lee from utah questioning brett kavanaugh, let's listen in. >> one of his more powerful dissents protecting individual liberty, justice scalia it was impermissible to hold citizen in military detention, that was important opinion of his when i gave a talk once about justice scalia, one of his most important opinions and on the kieren opinion itself, it dealt with many who were not american citizens, but you are right, there was an american citizen involved. the court, you are right also,
of course, you studied this as much as anyone, but the court did resolve the case very quickly and the opinion i've spent many an hour trying to decipher certain paragraphs of that opinion for cases i've had. it's not easy. i will say the court, to its credit, give a little credit, did have eight-hour, something, attorney general of the united states argued kieren personally and i read the transcript to figure out what was going on in the opinion that did not unlock the box completely for me. i don't know what was going on in the kieren opinion. justice scalia said it was not the court's finest hour, it was a rush. sometimes the court has to rush, but rushed decisions in judicial context sometimes aren't always the best. >> on that point, would you be open to bring back the eight-hour oral argument?
>> i don't, the eight-hour oral argument, we did have one in a -- in an in-bank case two years ago that went all afternoon. i don't -- we got back to the conference room, i don't think anyone was saying we should to that in every case. >> understood. understood. let's talk about judicial philosophy for a minute, i'd like to discuss federalist 78. in federalist 78, ham ilt theon discusses will and justice on the other hand. will being something that is exercised by the political branches, primarily by the congress, and judgment being exercised by judicial branch, what is the difference between those two? >> the judicial branch is deciding cases controversy according to law. the legislative branch is making the policy exercising the will.
the judicial branch can never exercise the policymaking role that is reserved to the congress. admittedly speaking level of generality, tough cases, margins trying to figure out what the line is. as general proposition, important for every judge to go in with mindset of, i'm not the policy maker, i'm the interpreter of the law applier in a particular case. i think that is very important part of the federalist paper woven into the constitutional structure in article three and that judges i'd certainly have tried for 12 years as judge on the dc circuit to incorporate that basic foundational principle into how i approach each case and it is a very critical bedrock principle of what judges do in our constitutional system. >> now within that framework, when we enact a law, what determines what it is you have
to interpret? is it what we say or is it what we subjectively intended? >> it is what is written in the text of the statute, senator. justice kagan said it well at a talk two years ago, maybe three, at harvard law school, president in the audience, we are all textualist, talking about justice scalia, who brought about significant change in the focus of all federal judges, seen it across the supposed philosophical strekt r spectrum pay attention to the context and we are all textualist because justice kagan explained every judge really cares about the words passed by congress. now why is that? i think about it from a formal and a functionalist perspective. formal matter, the law passed by congress is the binding law,
arizona to what is signed by the president, it is what has gone through the senate and the house and that is the law. but also as a practical or functional matter, i think having seen the legislative process, i know how compromises come together and the house and senate, within the senate, within the house, there is negotiations late at night over precise words and compromises inevitably. the constitution compromise, legislation is compromise and we depart from words that are specified in the text of the statute, we're potentially upsetting the compromise that you all carefully negotiated in the legislative negotiations that you might have had with each other and so that is a danger that i try to point out when we're having oral argument in a case or deciding cases if we deviate from what congress wrote we're potentially upsetting careful compromise even if we think we would have struck the compromise in a different place as judges, that
is not really our role. formal and functional matter, it is important to stick to the text. there are cannons of interpretation which occasionally cause you presumption of mepsrea, against territoriality and the like that cause you to superimpose on the act, sticking to what you pass is very important. >> you certainly consider yourself a textulist? >> judging is paying attention to the text and statutory cases, paying attention of the text of the statute informed by those cannons of construction, such as presumption against extra territoriality, presumption of mensrea, that are settled cannons, although some cannons are not so settled, separate half-hour of discussions. >> how does textualism differ from originalism? >> so originalism, as i see it,
has means constitutional textualism, public meaning of the constitutional text. originalism, it is careful when you talk about originalism to understand that means are hearing different things sometimes, so justice kagan again, at her confirmation hearing said we're all originalists now, which was her comment, by that she meant the precise text of the constitution matters and by that the original public meaning, of course, informed by history and tradition and precedent that matters, as well. different conception people have of originalism, original intent, in other words, what did the people, some people subjectively intend the text to mean and that has fallen out of the analysis because for example, let's take the 14th amendment, equal
protection clause. says equal protection, equal means equal, the law shall be the same for the black and the white, that is brown v board, focuses on text. but there were some racist members of congress involved in that who didn't think it should apply in that way to certain aspects of public life, but we don't, if you are paying attention to the text, you don't take account of subjective intention nor is it proper as general proposition to take account of the subjective intentions. they can be evidence in certain cases of the meaning of the words -- >> of the original public meaning? >> of the original public meaning, they can be evidence of that, you don't follow subjective intention. original public meaning originalism, constitutional textualism with senator cruz referred to as constitutionalism or constitutionalist, all
referring to the same things which is words of the constitution matter. of course, as i've said repeatedly, you look at historical, the history, the tradition, federalists 39 -- 37 tells us to look at the liquidation of the meaning by historical practice over time and you look at precedent, woven into article three, as i said in federalist 78. start with the words as justice kagan said, we're all originalists now paying some attention to or more than some, paying attention to the words of the constitution. >> if we stipulate for our purposes today as we're having this conversation, originalism refers to basically textualism applied in constitutional sphere with eye toward identifying original public meaning of constitutional text at issue, you are originalist? >> that is correct, justice kagan said, i think she meant, we are all originalists now and
i think she said she meant and meant what she said when she said that. >> what would be the argument against that? to me that sounds like judging, what would one argue against being that type of judge, against being textualist originalist? >> well, different philosophies of what a judge does, but i think the judges, you know, what the role of the judge is, i think the law, article six of the constitution says this constitution shall be supreme law of the land and the word law is very important there, not a is set of aspirational principles, it is law that can be applied in court and what is the law, the law are words ratified by the people and therefore can be applied in the courts of the united states. it says the supreme law, what does it mean by that, when you pass a statute, that is
inconsistent with the constitution, the supreme law controls, namely the constitution controls over contrary statute and that is also, discussed in federalist 78, as well, of what's the supreme law of the land in the constitution in the supreme law. again, precedent, historical practice, subsequent to passing of the tax, we see for example in establishment clause cases, court look at tax, historical practice and rooted in article three, those thing guess into it, the words, original public meaning, are important part of constitutional interpretation and has been i think throughout. >> let's suppose congress in infinite wisdom, with approval rating that ranges between 9 and 11%, making us slightly less popular than raul castro and more than iris gaining on us,
what if we decided we're all busy, parades to attend, there are political rallies to organize, we get tired of the busy work of making laws and also don't want to make ourselves accountable for laws we pass, easier to pass a broader statement. so we say, we hereby pass a law that says we in the united states of america shall have good law and we hereby delegate to the herewith created united states commission on the creation of good laws, the power to promulgate and interpret and enforce good laws in the united states. what constitutional issues do you see there? >> senator, the congress is of course, assigned the legislative power in article one of the constitution. so if it delegates wholesale, constitutional power to another body, then that naturally poses
a question of whether the body exercising that power ultimately has improperly exercised legislative power and whether that rule or what have you, enacted by that body is lawful because it was not enacted by congress. so the framers intended that congress would enact the laws and the executive would enforce the laws and the judicial would of course resolve cases and controversy arising under those laws. >> yet in some respects, it is not that far removed from some of what we may do today, may not pass something as extreme as in the hypothetical, but we will say we should have good law in area x and we hereby give commission y the power to make and enforce good laws in that area. so is there some point at which we cross a threshold of unconstitutional delegation?
>> the supreme court, as you know, has nondelegation principle and at least under current precedent allowed the delegation and i don't want to get too specific here, allowed some delegation and some justices or judges would say when the executive enacts rules pursuant to delegations that is exercise of executive power, but i think there has been some pushback on that and any event supreme court has doctrine on nondelegation principle and the line is debated on where that should be drawn, but there is precedent that does suggest at some point congress can go too far in how much power it delegates to an executive or independent agency. >> and when we do that at some point, we're shirking our own responsibility because we're making lawmakers, rather than laws and also consolidating into
one body the power to make and enforce laws, which is not only something that can lead to -- it is definition of tirnate itself. the campaign discussion you were having with senator whitehouse. with regard to citizens united states, didn't supreme court uphold disclosure in citizens unite? ed >> it did, i believe 8-1 margin. >> and in fact you've written on this, there is distinction for first amendment purposes for constitutional purposes between laws mandating disclosure and lawss banning the doing or saying of something? is that right? >> that is what the supreme court has said in certain context and that is the law as set forth by the supreme court. the citizens united is a good example, senator. >> in case called emily's list versus sec, you wrote disclosure
requirements trigger rights that receive "less first amendment protection," speech prohibitions, other types of speech prohibitions. >> i think that follow friday and supreme court law and consistent, i believe with subsequent supreme court law, subsequent supreme court law controls. >> do you have a favorite among the federalist papers? >> i am not asking you to choose here between eliza and -- >> yeah, that's right. yes. the role of the judiciary, federalist 69, which says the presidency is not a monarchy,
very important when hamilton explains way the prez dense senots a monarchy in our institutional system. i think that is very important. federalist 10 talks about factions in america and explains that having the separation of powers and the federalism system dividing power in so many different ways would help prevent a faction from gaining control of the entire -- all the power for the people of the united states and that's -- that make its frustrating at times because it is hard to pass new legislation, but that also, that division of power helps protect individual liberty and i think that comes a bit from federalist 10. federalist 37 and 39 talk about on the one hand, how we're just talking laws that are the constitution over time can bes term liquidated by historical practice. what does that mean? that means that as the branches fill out the meaning of the
institutional retirement practices, those can be relevant how the court subsequently interprets certain provisions, see that in -- versus regan, for example. we talk about national and federal government, conbin combination in 39, the combination, we have the odd genius rights of having a national government, plus state governments and within the national government, house proportionally representation, the senate is state representation, that interesting compromise, which madison was opposed to, that compromise the convention, federalist 47, which the senator mentioned yesterday, accumulation of all power in one body is the very definition of tirn tir any. that exact quote you read yesterday, senator, that is important. 51, if men were angels, we
wouldn't need government. so sorry, i've got eight kids. >> no, brilliant and i think that is a great -- greatest hits list, if these were on spotify, i would say you put together a list of those. let's close in the minute and a half i've got left, i gave myself additional 30 seconds because of the two interruptions there. tell me how you were informed by federalist 51 and how that relates to your role as a juryist? your role as juryist now in the dc circuit, the role you would play if confirmed to the united states supreme court, this interesting that government is an exercise and understanding human nature, if we were angels, we wouldn't need government and if we had access to angels over us, we wouldn't need all these rules, cumbersome rules that make government so inefficient and frustrating, how is that important and how does that affect you as a judge when trying to interpret the
institution and trying to interpret acts taken pursuant thereto? >> interesting question, senator. i think we recognize we're all imperfect, first of all, all of us, as humans are imperfect. and that includes judges and that includes legislators, includes all of us are imperfect. so we recognize that in how we go about setting up our government, if there were some perfect group of people, we'd put all the power in that one body, but because we're imperfect, putting the power in the one body would be as senator was saying, the definition of tyranny. it is dividing the power, separating the power and that again, to my mind, that reinforces why the framers, the genius, despite flaws in the institution and there are flaws, genius of separating the legislative executive and judicial powers tilting toward
liberty in all those respects and having a federalism system, we have state governments that can further protect liberty and laboratory of democracy, as well. all that is because we're imperfect and because we recognize the imperfections. it is also why we have things like a judge system and we, even within the judiciary, didn't trust a judge to do trials on his or her own criminal trials, we have or civil trials, we have a judge system to recognize and we have usually 12 and that is designed to recognize we're imperfect and sometimes that is why we have group-decisionmaking and 535 legislators, why we have nine justices, we don't usually have one person and so in injuries, that all stems from the same philosophical understanding we're imperfect
beings and divide power and make sure that >> thank you very much, judge. my time has expired. i'm not the chairman of the committee even though i'm playing him on tv. i understand that under the previous order entered before he left, we're supposed to take a ten-minute break. we stand in recess for ten minutes. >> perhaps one of the few humorous moments today. mike lee posed the question, what is your favorite of "the federalist" papers? >> we all have them. 51 is mine by far. chris wallace, brit hume are here, amy stoddard and others in new york. chris, your thoughts on