tv MSNBC Live With Ali Velshi MSNBC September 5, 2018 12:00pm-1:00pm PDT
stems from the same fi philosophical understanding that we're imperfect beings and that we divide power and make sure that no one person in a jury situation or other situations where liberty can be affected is exercising total control. >> thank you very much, judge. my time has expired. i am not the chairman of this 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'll stand in recess for ten minutes. >> you heard the man. at 3:00 straight up eastern time, a ten-minute break, even though he is acting in place of chairman grassley, he's going to follow chairman grassley's rules. we've been watching and listening with a lot of our friends, including here in the studio with us in new york. mimi rocah, a veteran of the southern district of new york and neal. as the government's lawyer, a
man who argued 37 cases before the supreme court, that is, after all, the focus of all these days of talk. mimi, you and i were noting senator sheldon whitehouse chose to bore in. chose to talk about how cases get argued in this country, concentration of power, dark money funding and the like. >> right. it's interesting that he spent really most of his time on that topic. and it's different than asking the nominee how he would rule on a certain case. so in some ways it allowed kavanaugh to actually answer, not that he couldn't answer the other questions but chose not to, to answer the questions a little more substantively, but this is an area that people are very interested in because kavanaugh has shown in his past opinions a real reluctance about campaign finance controls and that is something particularly with the trump administration and the influence of what we're seeing about the influence of
foreign money, this is something that i think people wanting to know that he's going to look at objectively. i'm not sure that that came through in his answers. i don't think that we actually got that. i think it made the point very well just by asking the questions. >> neal, what have you made of the last few exchanges between senators and the nominee? >> i guess i'd say that judge kavanaugh i think has done quite well. he's coming across polished and substantive and the like but there are two big features as to why. he's being grilled by, grilled in quotes, asked questions by a very friendly audience, by and large, the senate republicans who can't even stand up to president trump when he politicizes the justice department in all sorts of horrible ways, so this is kind of -- has a little bit of a rubber stamp feeling. the other thing is the democrats, mimi is right, that senator whitehouse asking these questions about how cases get there, the democrats are a little bit stuck because the hearing is going on with a lot
missing. i mean there's 100,000 pages that the white house is saying executive privilege over, 42,000 pages that were just dumped on them. so it's a little hard for the democrats to ask very many questions. donald trump, during the campaign, said russia, i want the 30,000 e-mails and he thought that was important for a four-year election. here we're talking about the most consequential supreme court nomination hearing in our lifetime and there are literally hundreds of thousands of pages that the democrats and the american people don't have. >> also don't human nature rules start to come into effect, mimi? tonight we're talking about kamala harris maybe having a slot after 9:00 p.m., a full 12 hours into this hearing. either witness or senator has to get tired first and a punch could land. >> that's true. i think it's interesting. i do think kavanaugh has come across from yesterday and most of today as polished, but in my opinion, almost too polished.
i thought he seemed overprepared. the times when he was most natural were in the last questioning when he was talking about more sort of intellectual, you know, the federalist papers and not being asked something that he was clearly uncomfortable with. i thought the most telling moment really today was when senator leahy put those e-mails in front of him. one rule about witness trials is you never want a witness to see -- to have to read something for the first time on the witness stand and that's what it looked like happened here today. i thought he looked very unprepared and uncomfortable and dodgy. and so to your point, i can't imagine he's going to be holding up well by 9:30 and that's going to show more because i think he seemed so overprepared in a way with these leading questions from the republicans and always had a smooth answer until he wasn't prepared and then he seemed to me very dodgy. so by tonight i think that's going to show even more starkly. >> neal, you're nodding. >> yeah, judge kavanaugh has a reputation for being one of the most prepared judges in the
federal country, so when mimi says he's coming across prepared, i think you take that as quite a compliment. this is a guy who every friday sits down with his law clerks and reads every supreme court opinion that's come down and they go and debate it. i think you're seeing some of that here. and obviously when an attack like before the senator judiciary committee and here's an e-mail from 2002, 16 years ago, you'll have a different expression on your face. that's just human nature. >> absolutely a given. we want to welcome into our conversation jameel jaffer, a veteran of the senate foreign relations committee as chief counsel and was a clerk for now justice gorsuch when he was merely federal judge gorsuch. welcome to the broadcast. i wanted to ask you about some of the visuals that senator whitehouse used. number one, the executive privilege claim. we had not seen a redacted piece of paper heretofore.
and number two, a visual that may live on past today and that was the disk graphics he used to show the roberts court siding with corporate interests in his view, conservative interests, and kavanaugh decisions. they looked almost congruent. do you think that's concerning? could you have made the opposite graphic for the liberals? >> if you're inclined to believe the story being told in the graphics, then you'll look at them and say, look, that just proves that i was right. if you're inclined to say that's not right, you'll say there's a lot of other details that are being left out and i really don't think these graphics are moving anybody who is trying to figure out where they are. these are pitching to the audiences they're aimed at.
so in that sense i think they're effective in a certain category but i think everyone knows there's nuance to these decisions that isn't carried over in these graphics. when it comes to redactions, we historically when it comes to supreme court nominations have had sort of consensus approaches to things. when justice kagan was up, the democrats and republicans agreed we're not going to ask for her sg documents, as neal knows, very sensitive documents about the position before the supreme court. here there's not been an agreement because the republicans and democrats can't come together on what search terms should we use. we want all the millions of pages that were before mr. kavanaugh, judge kavanaugh when he was the staff secretary. so there hasn't been that consensus we've seen in the past. i think that's part of why you see this fight over documents and over hearing time and the like, even though we've seen more documents over the last five nominees combined. even though there's 20% more
time than prior nominees have had in recent memory. >> to say that this is about a document and about search terms and that's what the dispute is about is just wrong. this is about documents that are over 15 years old. the kagan hearings, which i had a pretty big role in watching, those documents were all turned over. all of her white house documents, all of her e-mails, everything. here 100,000 pages have been assertion of executive privilege over them and many others not produced. >> jameel, 30 seconds for the last word. when you troubled by the 35 months of his life and career missing in terms of a paper trail? >> not at all. we've seen 12 years of his most recent years on the bench, 300 opinions, thousands and thousands of pages. we know what kind of a judge he'll be. that is what he should be judged on, not 20-years ago papers from the bush white house. waiting for us to come to you, we were hostage to the break schedule in the senate committee room. we appreciate having you on very much. across town we go.
we mentioned those of you who have been watching nonstop saw some of this earlier. the president has commented today on all of the topics swirling around the news a short time ago at the white house. >> mr. president -- >> i am. i'm happy with the kavanaugh hearings. i watched today for a little while. i saw some incredible answers to very complex questions. he's an outstanding intellect. he's an outstanding judge. he was born for the position. i heard as long as ten years ago people were saying he should be a supreme court judge. i didn't know him at the time but i was hearing from a lot of people, friends of mine from washington and other places saying that brett kavanaugh should be a supreme court judge some day. i'm honored that i gave him the chance. i've watched his remarks. i've watched his performance, i've watched his statements. honestly, they have been totally
brilliant. i think that the other side is grasping at straws and really the other side should embrace him because you're never going to find better in terms of talent or intellect than what you have in brett kavanaugh. [ overlapping speakers ] >> oh, yeah, sure he's lying, sure. bob woodward -- oh, you mean the book? the book? it means nothing, it's a work of fiction. already general mattis has come out very, very strongly and i think you know general mattis. he does what he wants to do. he's a very independent guy. he was insult eed by the remark that were attributed to him and he came out with a very strong statement. i assume you read it last night. general john kelly the same exact thing. he's insulted. he's right here. he was insulted and couldn't believe what they said. he put out a very, very strong statement. other statements are coming out. the book is a work of fiction. if you look back at woodward's
past, he had the same problem with other presidents. not at all, the book is fiction. i heard somewhere where they said the assassination of the president -- 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, it lasts for about a day. no, that was never even contemplated nor would it be contemplated. >> very notable on the record straight up denial of the story in the book that he ever ordered the assassination of bashar al assad of syria. matt miller, one of our veteran contributors, former chief spokesman for the department of justice has been equally patient waiting to hang out with us. matt, it strikes me if you're old enough to have any bark on you, you remember the first time a president in that room complained about a journalist named woodward, it was a long time ago.
>> that's exactly what i was thinking of. president trump mentioned books that bob woodward wrote on president obama and wrote about president bush, but obviously the parallel that jumps right off the screen is when president nixon sat in the white house and just viciously attacked bob woodward and carl bernstein and their reporting for "the washington post." there's this weird kind of split-screen effect today where you have on one side of pennsylvania avenue, the president attacking bob woodward's reporting, kid of in nixonian terms. on the other side of pennsylvania avenue, you have his nominee to the supreme court, you know, in a way refusing to endorse one of the most consequential acts of the watergate scandal, the nixon case, of course, where the supreme court found that a president had to comply with a criminal subpoena. i thought the answer that brett kavanaugh gave where he said that's a hypothetical whether a president would have to be forced for a subpoena is notable. it's this weird thing where you have on one side of the street the presidency kind of engulfed
in scandal and on the other side of pennsylvania avenue, a nominee and senate majority pretending like everything is fine and normal. >> matt miller, thank you for your patience. thank you for your contributions. we go back to the hearing room. the senior senator from the great state of minnesota takes over the questioning, amy klobuchar. >> 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 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 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? 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. >> okay, but 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 102,000 that the white house has exerted -- has asserted privilege on that we're
not able to see. so i'm not even talking about the 189,000. >> i stand corrected. >> all right. so again, i asked if there's anything in those documents you 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 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 roberts and with justice kagan. >> those are solicitor gem for the -- solicitor general i'm talking about the white house time. >> i'm not seeing a distinction. those are executive branch. >> i think one is involving the ongoing solicitor general but i have just one more question on this line. you just said that rush
decisions aren't always the best in answer to the discussion with senator lee. you think a good judge would grant a continuance to someone who just received 42,000 documents on the day before the start of a trial? >> senator, i'm not -- 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 documents from the time he was solicitor general from 1989 to 1993. he was nominated in 2005. it's my understanding that 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 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. is it 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 with that question, senator. the first thing i want to underscore is that what i wrote in the minnesota law review was in 2009 when president obama was president or becoming president was thoughts on a variety of topics reflecting on my experience -- >> i just want to pick up the tempo on my questions because i have so many of them. could we get to the point about
the dastardly if there's a way to differentiate. >> but just to underscore, 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. >> 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 characterizati characterization? >> but there are two different things going on. the one is about special counsel investigations, for example, or criminal investigations, or civil lawsuits, and 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 jones. the second question getting right to your point is what is an impeachable offense, and that's actually a decision for you, not for me. because the house and the
senate -- >> but i'm just figuring out whether we know something is dastardly or not if we can't even investigate it? >> i think i'm going to repeat, that's a question for -- you're asking for -- >> i'm asking about your position that you stated in this law review article that a president is not subject to investigations while in office. >> the dastardly comment -- >> just to -- you're only saying that they should be subject to investigation as part of an impeachment and there's no other investigation that could occur? >> no. i was -- 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. so that's point one. point two is the idea what is an
impeachable offense and that really is a question for the house and the senate. >> let me move on. this is about actual opinions and really along the same lines that i know senator coons is going to talk to you about the special counsel statute and we're very concerned about that. but in the 7 sky v. holder case, 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 constitutional. and 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, but 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 tell a court upholds it like
you said in aiken county or that a president can continue to ignore a law even after a court upholds it, like you said in 7 sky? >> so ignore is not the concept there, as i think we discussed when we met. we had a good back and forth on that. the concept is prosecutorial discretion. that's what i explained to reference the footnote you're referencing. prosecutorial discretion is firmly rooted, the 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. and then heckler versus cheney says that that applies also 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 in terms of an exercise of prosecutorial discretion. >> but 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, for example, 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 another example for you, the texas case on pre-existing conditions. the administration has taken the position that 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 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 puburu structure, we talked about that. you said agencies like the cfpp,
the consumer financial protection bureau pose a significant threat to individual liberty, end quote. so does it follow that you think that other independent agencies are also constitutionally suspect? >> the supreme court has of course upheld since 1935 humphries executor decision, the 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 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 the 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. what my constitutional concern
was, was the structure with the single member head, which had never been tdone before for an independent agency of that kind. my remedy would not have been to invalidate the agency but to make that person removable at will and you could have 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 are also just headed up by one person, right? 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, the single person would be removable at will instead of for cause. but the agency would continue to operate -- >> 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 so the -- [ protester yelling ] >> i want to turn to what the majority felt about your dissent and i think they recognized that the dissent would threaten many if not all independent agencies. i think they specifically mentioned the ftc and 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, in that case. all i was talking about was a single-headed independent agency. >> but that's like social security. >> but the s.e.c., the ftc, those are the traditional, the ferc, the mlrb, the fed, multi-member independent
agencies. and so those agencies are all the 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 is kplcompletely unaccounte to the congress or the president and is one person in charge, that becomes an extremely powerful position. >> okay. but social security has been like that for a long time. and 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, senator sasse, someone in congress has to step in. in this case congress stepped in. they said we have this major financial crisis, that's where we started this agency, we have done this and you come in and in a minority opinion here and you say that it's unconstitutional. and i would throw another federalist society back at you. federalist quote.
you quoted hamilton yesterday from federalist 83 when he said the rules of legal interpretation are rules of common sense, right? >> yes. >> all right. so it just doesn't make common sense to me that we would throw an agency out like that or 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 and that's net neutrality, right? and that is in my mind the bedrock of a free and open
internet, allowing consumers and small businesses to have an equal playing field. but in u.s. telecom association vfcc, in your own opinion you went out of the way to dissent. this is the full d.c. court against you. the rules were upheld by a panel of judges appointed by presidents from both parties. here you relied on something else that you came up with called the major rules doctrine. and 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 the fcc is doing their job in a really complex policy matter. they put forward these rules on net neutrality and then you insert your judgment to say that they're unconstitutional. so tell me why i'm wrong. >> the major rules doctrine or major questions doctrine is rooted in supreme court
precedent. therefore, as a lower court judge i was bound to apply it. it was applied to the majority opinion in the brown and williamson decision. the godfather of the major rules or major questions doctrine is justice breyer, who wrote about it in the 1980s as a way to apply chevron. the supreme court adopted that in the brown and williamson case, applied it in the uarg case, the one 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. and that had not happened in my view with respect to net neutrality and i felt bound by precedent, therefore, to apply the major precedent. >> so minor rules would be okay but not major.
i know in the decision you said you'll know the difference when you see it. i think that's why the other judges on the court appointed by both parties went with the traditional and precedential view of how to look at this and you used the 1986 law article albeit by justice breyer and then dicta from the king v.burwell case in 2015. i'm trying to show a pattern where you say congress should step in and doing everything. you're stepping in in these cases. >> so i would say it's a pattern of adhering to precedent. >> well, it seems that the precedent to me when you look at, for instance, chevron, and i know the white house touted the fact that you've overruled a federal agency action 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, how you led the effort? >> i don't know. i don't know what that's referring to. i know my record. i'm sure i've upheld agency
decisions dozens and dozens and dozens and dozens of 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. and so i think my record will show that i've ruled both ways on those kinds of cases. i don't think i have a pro this or pro that record. >> one last question in this area on consumers. so the major doctrine, the major rules doctrine actually raises questions to me about your view of chevron. as you know, it's that 1984 case, i would think it's settled law, but i'll ask you that. where courts generally defer to renal 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 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. 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 are 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 the courts shouldn't be unduly second-guessing agencies. >> okay. i want to move to campaign
finance, since those are the documents that i received and were able to make public. of course i think they all should be made public, the ones that -- and i don't like this committee classification, what happened, but the chairman did allow me to make those public. 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 v. vallejo case being settled law, it seems like you have some issues with those rulings. how do you view the precedent 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. 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 serell. >> i'm aware of these cases. >> justice breyer wrote. >> mm-hmm. >> so i don't think there's -- buckley versus vallejo is an important precedentprecedent. there's others, mcconnell, citizens united -- >> my issue is we've had past nominees who said they would honor precedent and then joined the citizens united opinion. when i was hearing your discussion with senator whitehouse about where you talked about congress should step in again and they did with the mccain-feingold and that was
struck down. i personally view this as 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 rolling against the rnc in rnc versus fec where it was challenging limits on contributions to political parties, and i rejected that challenge. another, bloomen versus fec, contributions by foreign citizens to u.s. election campaigns and i upheld that. >> let's just talk about that case because 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 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 expenditure limits was not before us in that case so i don't want to opine on expenditure limits. >> well, it was that opinion that was cited by -- >> i don't know if it was cited -- well, i don't want to talk about a pending case. but my case i upheld limits on contributions in the rnc case and in 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 versus serell and mcku mckutchon. >> do you stand by the
bipartisan campaign reform act in that case, the bloomen case? >> i'm not sure of the question. >> we can go back to it on the second round. okay. agent trust. senator lee and i are on the antitrust subcommittee and as you know in recent years we talked about this in my office, the supreme court has made it harder to enforce our antitrust laws in cases like twombly, legion and ohio v. american express. this could not be happening in my view at a more troubling time. we experience a wave of industry consolidation. annual merger filings increased 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 antitrust 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 path starting with the 2008 whole foods case, where whole foods attempted to buy wild oats markets. it's very complicated so i'll just go to the guts of it from my opinion. the majority of courts, and what happened here is the republican majority ftc challenges the deal and you dissent and 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, an appointee of president clinton's to the district court, i was following his analysis of the merger. that case is very fact specific and 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. because you used a different test. i'm trying to figure that out, what legal authority actually requires the 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 is to look at the effect on consumers. what's the effect on the prices for consumers. and the theory of the district court and 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 was there an organic food market solely or is there a broader supermarket market, and that's what the case --
>> i was just trying to get to where that new test came from. so in the second case, you also 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 and what was viewed as poor quality insurance. here you actually 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 will 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 they negotiated prices with hospitals and doctors. so the theory at least as i understood it, which i agreed with, was 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, but i did not think there was a problem in the market that was at issue in the case. i specifically said i would have sent it back to the district court for analysis of whether the merger was a problem in that other -- it's a three -- >> but you did suggest that the court should disregard two cases that have been widely relied on in antitrust. 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 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 consumers, what would be the effect on consumers. >> senator -- >> just one sentence here. >> yes, proceed. >> just that this antitrust issue is very -- as you know, very dense. but again, i am very concerned about what's going on with these cases nationally and then when i looked at these two cases, it appears to me that you would go even further and i think we need less mergers, not more. >> can i add one thing. >> yes. >> when i referred to the overlap of chevron and state farm, that's when i was talking about words like feasible and reasonable. i 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 service. before i get into questions, i just 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. and 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 as well. >> thanks, both of you, very much. i've expressed it to many of the policemen individually as i see them. proceed. >> start his 30 minutes over. >> judge kavanaugh, let's start with 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 is an umpire, who is not wearing the uniform of one litigant or another, of one policy or another. someone who reads the law as written, informed by history and tradition and precedent in constitutional cases, the law is written and formed by the canons of construction that are settled in statutory cases, that treats litigants with respect, that writes opinions and 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 court decides in a particular case. a good judge pays attention to press denticeden
precedent, which is rooted in article 3 and critically important to the 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, and i think that's critically important as well. judicial temperament. there are a lot of factors that go into it. 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 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 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, that you voted together 93% of the time. not only that, of the 28 published opinions that you have authored where chief judge garland was on the panel, chief judge garland joined 27 out 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've written when he was on a panel with you. and 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 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 and we work well together and try to read the statute as written, read the precedent as written, and he's a judge who does not, like i try to be as well, a judge that's not trying to impose any personal preferences onto the decision but take the law as written and that's what i've tried to do in those cases. that probably explains some of that. i think it also goes back to i don't think -- i think judges are distinct from policy makers. i think that shows up when you dig into the actual details of how courts operate and go about
their business. 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 the supreme court is a team of nine and we try to be a team player on the team of nine. of course there are going to be disagreements at times so i don't want to overstate, but if you have that mindset 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, 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 policy preferences and what the law describes. or mandates.
how would you describe a judicial activist? >> i would describe a judicial activist as someone who lets his or her personal or policy preferences override the interpretation of the law, and that can go in either direction. so, a judge who strikes down a law as unconstitutional when the text and precedent don't support that result, or a judge in the other direction who up holds the law as constitutional when the text and precedent would suggest that the law is, in fact, unconstitutional. so, too, in statutory cases. it's the same principle. when a judge does not stick with the compromises that you've 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 review in the committee report and i'm going
to superimpose that onto what the text of 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. >> your time on the d.c. circuit, you've written a number of opinions addressing separation of powers. why does separation of powers matter? why should -- why should an american at home watching this on c-span care about the separation of powers? >> people should care about separation of powers because it protects individual liberty. it's really the foundational protection 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 rates rights, but it was meaningless in operation
because they didn't have an independent judiciary, they did not have a separation of powers system to help protect those individual liberties. so it works in two ways, i think, or more than two ways. first, the independent judiciary that helps enforce those rights. secondly, the whole structure as i've explained tilts towards 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. the bicameralism principle in the senate was designed to prevent the passions of the moment from overwhelming and enacting a law based on the passions as opposed to a more difficult process. that all helps protect individual liberty. then even after you pass a law, the president has as i was discussing with senator klobuchar, the executive branch haas prosecutorial discretion
when and how to enforce particular laws. who is protected by prosecutorial discretion? ultimately it protects individual liberty. and then even when the congress has passed a law and the executive has enforced a law, that dudsant 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 -- the jury protections that are in the original text of the constitution and also 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 the branches. so, what do we do, for example, members of congress don't serve for life. you have to run for reelection, and that's a check, again, to help protect individual liberty, to help ensure accountability as well. so, too, with presidents.
the document is chock full of protections with individual liberty and that is 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 been an issue you haven't encountered as much serving on the d.c. circuit, but can you share with this committee 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 4th amendment only protects your -- against unreasonable searches and seizures up to a certain line, it's possible your state constitution will protect you
even further under that, or your state legislature might 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. so you have different laws -- >> blatantly. >> yes. also, i think the federalism serves the more general idea of the government that's closest to you for most of your day-to-day activities. my wife is 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 government is most people's interaction with, with government. and federalism in that sense makes -- ensures accountability because you know better usually, your local and state elected officials than you do, and you can, therefore, make your views known on whatever governmental issues is of concern to you. for example, the schools is a classic one. >> so, what is the importance -- >> we're going to skip across town once again because the president has once again spoken to the assembled press pool. this next bit is motivated, in part, by a headline that just hit the washington post. white house is discussing potential replacements for jim mattis. when you read further in the first graph, it's made clear that this effort started well before the mattis quotes which have been denied, appeared in
the woodward book. and it also makes clear that whenever he might step down, the white house has wanted to have a name to nominate. so, knowing that, the president was asked, among other things, about general mattis. >> there is a report you're looking to replace secretary mattis. >> what, he just made the nicest quote about me i think i've ever had. in fact, mitch has never said anything so nice. i think steve scalise has said something just as nice. but, no, he just gave me -- i think because the book is total piece of fiction. and he was totally -- not even misquoted. he never made the statement. he came out with a statement that, honestly, you know, i've heard over the years that general mattis is an intellect. when i read his statement, i asked him whether or not this was true. he said not only is it not true, i'd like to write a statement. i said thank you very much, that's nice. he wrote the most beautiful
statement. i think he's a fantastic person, he's doing a terrific job. we're very happy with him. we're having a lot of individual risk. we're having victories people don't know about. he's highly respected all over the world. and i did appreciate his statement. he didn't have to write that statement. i appreciated the statement of john kelly. and i appreciated the statement of many others. it's like, you know, every week i seem to have a book coming out. some good, some bad. in all fairness, i get some good ones, too. but i like to take them on when they come out. that's a piece of fiction. thank you, everybody. >> for the american people -- >> well, if you look at bob woodward's track record, he had the same problem with -- excuse me. he had the same problem with president obama. he had a tremendous problem with
president bush. every time he wrote a book they were complaining about it. they were complaining about the lack of accuracy. and i understand him. that's what he does. and i fully understood that before. in the end, i'm very happy with the way it turned out because i think the book has been totally discredited. thank you very much, everybody. thank you. thank you. >> -- >> if it happens, it happens. if it's about border security, i'm willing to do anything. we have to protect our borders. if we don't protect our borders, our country is not going to be a country. so, if it's about border security, i'm willing to do what has to be done. thank you very much. >> so you saw there what's called in the trade a pool spray, a spray of the room by the news media pool cameras. that was the roosevelt room directly across the hall from
the oval office. a neighborhood known well by the person standing by to take over at 4:00 eastern time where she usually is found. nicolle wallace is standing by. and, nicolle, as we hand over the coverage to you, we do so noting that during this day when the white house would normally prefer coverage concentrated on their nominee and the hearings meant to confirm that nominee, the president has now twice today pulled the coverage back to the woodward book, not yet out, and the damaging quotes contained therein. >> it is remarkable on so many levels. one, that the president doesn't have the restraint to stop pushing this book up to the top of the amazon best seller list, which is where it is at this hour. two, that the president -- it's interesting to me today that the kavanagh/mattis juxtaposition, arguably the two most sort of