John Kennedy Quizzes Biden Judicial Nominees On Constitution

that he is um settled uh but i'm very very pleased that uh my friend and colleague senator kennedy is here i want to invite him uh to um ask his questions uh to the witnesses thank you mr chairman i like you so much better than durbin i just want to say that say that appreciate that sir i'm going to have the record printed out and put on my wall sir please do that oh let me see here good morning good morning is my time running sir i will give you as much grace as you uh request and your in your clock so do not worry about that i know you just walked in uh and i would ask thank you very much i would ask thank you mr chairman the clock has been reset to five minutes as soon as you are ready sir we'll start counting um mr davis congratulations first um tell me what you think we ought to do about if anything about qualified immunity for police officers thank you for the question senator um as you know as you know it is a very challenging issue that one is being worked on by senator booker and senator scott and i think the challenge that presents is that there is very little doubt that we need to protect officers and provide immunity when they operate in good faith at the same time though we have to be concerned that something we don't protect those who willfully and knowingly violate the law and i think most cops would agree with me that bad cops not be protected so i i think there has to be a revisit and to try to really resolve that that dilemma for lack of a better phrase and i think and i look forward to seeing what the uh the group comes up do you think we ought to get rid of qualified immunity outright no sir i do not okay all right um judge grigsby good morning senator let's suppose that you are the owner of a private uh privately owned because you own it shopping center and you adopt a rule that applies to everybody who who who comes to your shopping center to uh to purchase items and your rule is um nobody can petition nobody can set up a table and try to get signatures in my shopping center my shopping center is just for people to come and buy things and you don't discriminate on the basis of of the petition um advocates you say all are prohibited uh and you do that under your fifth amendment right under federal law can is that legal for you to do that thank you senator very much for that question and and your hypothetical raises a number of potential issues in terms of the ability to uh gather free speech et cetera it would depend upon the specific fact pattern i would say that generally speaking of course as a federal judge i'm governed by president on issues such as the first amendment freedom of assembly and freedom of speech and that would be the question i would look at in terms of analyzing that the fact that it's a private shopping center yeah but but if i could could interrupt you if if you you're the owner of the shopping center so you have a fifth amendment right to property and you adopt this rule that says nobody can come here and petition i don't care what it's who you are or what it's about that would be in conflict with the petitioner's first amendment right to petition under the current state of federal law if those if the petitioners sue the sue you who wins well again senator i think it would depend somewhat on the facts and you're hypothetical you're talking about a private owner so it's not state action so that would certainly be relevant in terms of analyzing the question but i think it would depend there are two different strains of constitutional interest that you've raised which i understand you're hypothetical and it had to be analyzed carefully under both okay judge boardman good morning good morning tell me what the rational basis test is thank you senator kennedy for that question um i understand that that is probably the first level of review in a constitutional question um and certainly if that matter were before me in a constitutional matter i would research the law including supreme court precedent binding fourth circuit precedent and i would apply it where applicable what is it can you define the test for me i cannot sitting here right now sir whenever i'm faced with any new legal issue i do the research and i find the answers um through research in the case law okay so you don't know okay what's the penumbra thank you senator my understanding of a penumbra are those rights recognized in the constitution that are not specifically enumerated okay uh we know that that privacy is a is a penumbra do we not that's my understanding senator uh are are there any other supreme court holdings um uh defining other penumbras uh senator i'm sure that there are could you help me there um i understand there's a right to travel that is not specifically enumerated in the constitution yes ma'am anything else again i am sure there are that's okay let me ask you one last question um when when we look for a fundamental right in the constitution and we know from supreme court president that that you and i have fundament fundamental rights according to the supreme court's according to the supreme court president we have fundamental rights that are not expressly delineated in the constitution one example is the right to privacy that we just talked about what what what is the supreme court standard for looking at the constitution and saying even though it's not expressly delineated we think that americans under our constitution have this fundamental right thank you senator kennedy for that question it's hard for me to answer that in the abstract what i do in every case when i'm presented with a question like that is i research the law and i find supreme court precedent on it um so in order to answer that question i would need to do research to tell you what the standard is let me ask i'm not asking the direct answer i probably wasn't didn't ask that very artfully i'm trying to understand your appreciation of the state and law let's suppose i litigate a case and i say i have a fundamental right to education and my case reaches the united states supreme court now i think we can both agree that the constitution does not say expressly that i have a fundamental right to education for me or let's say for my children let's suppose i'm arguing that it is implied in the constitution what tests is the supreme court going to use to try to determine whether i or my children have a fundamental right to education if i argue that it's an implied right a penumbra if you will thank you senator um certainly it's very difficult for me as a sitting magistrate judge to speculate what the supreme court would do but based on my reading of supreme court opinions certainly the supreme court looks to the constitution the bill of rights the 14th amendment the due process clause of the 14th amendment okay on an issue like that a right that's not expressly stated in the constitution but it's very important obviously we know that absence of education is the root of a lot of our social problems in america which branch of government do you think is is better suited to make that decision the decision being whether i have a fundamental right to education uh the legislative branch or the judicial blanche branch thank you senator for that question certainly the role of the judiciary is to interpret the laws that congress passes and the constitution to the extent that interpretation leads the supreme court to find a right to education then that is within their province certainly the legislature passes laws to fund schools and to govern education so each body has its own role but what i'm asking is between the two branches which branch in your judgment is better equipped to decide whether americans have a fundamental right to education thank you senator for that question [Music] i'm just asking for your judgment i think when it comes to interpreting the constitution um that is when the province of the supreme court and to the extent that there is a fundamental right to education that's recognized by the supreme court that would be the law of the land yeah um what do you think about this point of view judges are constrained by the case before them the law and the facts um you're constrained by the record you can't stop a trial and say i want to hold hearings from experts throughout the world to determine the importance of education you've got to make a case on the record a legislature can so a legislature has access to a greater breadth of expertise and knowledge to decide a case on an issue like that um why wouldn't the legislative branch be better suited to decide a fundamental question like that than than the case than the court in a narrow case as the witness prepares to answer um senator kennedy is probably one of the only senators i would give this kind of grace he's going on for about 11 minutes and sir no you can continue to go on you're my friend i just think there might be other senators waiting yeah i'm sorry i thought i was the last one mr chairman i know you may be i was just told that we might have others no i i am so sorry i apologize profusely to the chairman and to you thank you all for being here thank you um i want to thank folks i was told that perhaps i know they're logged in but again our senators are

Channel: Forbes Breaking News

Views: 709,971

Keywords: john kennedy, cory booker, biden, judiciary, congress

Id: KXNcr5Nb5vg

Length: 12min 12sec (732 seconds)

Published: Wed May 12 2021