Judging Brett Kavanaugh and the Supreme Court with John Yoo

after 30 years on the Supreme Court Justice Anthony Kennedy stepped down this past summer and in a matter of days as we shoot this show the Senate will begin confirmation hearings for the man president Trump has nominated to succeed him judge Brett Kavanaugh today on uncommon knowledge a student of the Constitution and of American politics will tell us what it all means John you on common knowledge now welcome to uncommon knowledge I'm Peter Robinson john yoo is a professor of law at the university of california at berkeley and a visiting fellow here at the Hoover Institution at Stanford from 2001 to 2003 he served as Deputy Assistant Attorney General at the Justice Department's Office of Legal Counsel professor Yu is the author of many books including most recently striking power how cyber robots and space weapons change the rules for war professor Yu appears often on Fox News and he is also the co-star with Richard Epstein and Troy senic of the popular podcast law talk John you welcome back to this show thanks Peter John you are an alumnus of Yale Law School don't tell anybody yeah it's too late it's too late listen to this which comes from an open letter from Yale law students alumni and educators regarding Brett Kavanaugh also a graduate of Yale Law School and a friend of yours at Yale Law School here's the quotation we see in judge Cavanaugh an intellectually and morally bankrupt ideologue intent on rolling back our rights people will die if he is confirmed close quote John it's ridiculous people will die if he's not confirmed - ok this is I feel really bad for the faculty a couple hundred signatures this is embarrassing that I went to Yale Law School and Brett went to Yale Law School and this is the kind of legal writing I would give it an F ok so this does this doesn't even rise to the level of needing to be refuted this is ridiculous on the face of it just the idea that you hack you can't confirm someone because people will die we're all gonna die I mean there's I think I think what they're yeah what is clearly because the thing is so badly written and frankly but a few paragraphs earlier up they were talking about abortion and I think the suggestion is sort of what Teddy Kennedy argued about judge Bork said he would return to the America back-alley abortions I think what they're getting at with that line is that judge Kavanagh might over rrrow yeah so actually this is a good way to understand Brett Kavanaugh or any conservative who went to Yale Law School that's the kind of environment if your conservative you are surrounded with all the time so if you're a conservative you make it through there like Sam Alito or Justice Clarence Thomas and now I hope Brett Kavanaugh you're gonna be really sure about your conservative beliefs because you get pounded on every day by people who not only accusing you of killing people but also do it in the most badly written English that you can imagine alright we'll come back to judge Cavanaugh judge Cavanaugh will make up 85% of our conversation but first I'd like at least a brief assessment of Justice Anthony Kennedy nominated by Ronald Reagan confirmed by a Senate vote of 97 to 0 and justice Kennedy served on the High Court for just over three decades to assessments editorial in the Wall Street Journal quote Justice Kennedy has provided the fifth crucial vote in numerous cases defending free speech and religious liberty gun rights and property rights close quote now here's an editorial in National Review no justice was less willing to tie himself down to clear rules or a legal philosophy the trademark of a kennedy opinion was a verbal effusion that gestured toward profundity without overcoming confusion in fact that editorial was carried the headline good riddance to Justice Kennedy and what is John Hughes well how do we how do we evaluate just a second I think I read both pieces when they came out I tend to agree more with the National Review view I'm not sure the Wall Street Journal would disagree I don't necessarily think they're in conflict they're mostly because I hope to get published in one of them again in the future no but I think that the Wall Street Journal is really looking at the bottom-line outcomes where did Kennedy vote and I think National Review is looking at the deeper themes and the way he thought and I think many conservatives including myself were very disappointed in Justice Kennedy because he did tend I think to try to vote the way he felt the American people or American society wanted to go rather than more like a Scalia or a Thomas sticking to the framers of the Constitution understood the document to mean when they ratified it so some cases that the Wall Street Journal there didn't mention abortion rights and gay rights to the obergefell I think obergefell has decided what 18 months ago now it's the gay rights the gay marriage excuse me gay marriage yes and it's but Justice Kennedy if you're gonna look at his legacy in addition to free speech I think his greatest legacy has been gay rights he offered three opinions actually with obergefell the right to gay marriage being or pinnacle right yeah lawrence and then an earlier case called Romer Caillou did you go to law school Peter because you're sure I know you you graduated from Yale with right right now because you mentioned two cases correctly so explain that so I think Justice Kennedy created a right which the framers almost certainly didn't think was there and really pitched his opinion to the idea that there are these evolving norms in society that have to be given respect by the court this runs quite counter to the way conservatives including your former boss President Reagan said he wanted to do when he was appointing new justices to Supreme Court was to get them to stick to the constitutional Texas understood not because gay shouldn't have rights but it's because we want the legislators to decide when Congress and the state legislatures to decide that question I think Justice Kennedy ultimately and this goes beyond what the journal and National Review said if he really stood for anything more than just how he came out on single issues he stood for judicial supremacy he stood for the idea that judges get what eyes that yeah I get the last say on what the Constitution means and because now so many of our societal questions religion race gay marriage guns all get sucked into the Supreme Court now that may Justice Kennedy essentially in many are many questions more powerful than the President and certainly more powerful than any single member of Congress in deciding the rules that you and I have to live under you're a law school professor great in ABCDEF you know we had the same I think we had the same conversation with justice O'Connor retired to and I think they're both gonna pass into history as average justices I think you know we look at the outcome of their votes but I don't think we're going to remember them for any theories themes so think of Scalia is the exact reverse Scalia didn't win very often actually we don't think about oh how did he vote in this case how do we vote that case we remember him because of the arguments and the themes to his Juris and because he wrote so brilliantly and argued so cogently I'm saying this as if I'm affirming or asserting it but this is in the form of a question that he actually actually so let me ask you this you once said to me this is years ago and I'm not even sure you remember it I don't think I've ever quoted it back to you but you once said to me something like before Antonin Scalia was appointed to the Supreme Court original originalism his his fundamental view of the Constitution was considered laughable at elite law schools such as Yale by the time Antonin Scalia died if your law school didn't have two or three or four important originals on the faculty your law school was laughable and so so the art the question would be a decade from now will any kids at Yale Law School your alma mater we keep going back to Yale read Kennedy decisions and say he was right or I want to be able to reason the way he reasoned or won't they even read his decisions that's the problem I don't think there was any Kennedy School of thought just the way there was no O'Connor school of thought they bounced around from issue to issue Justice Kennedy changed his method from issue to issue case to case some cases he was an originalist some cases like gay marriage he was trying to get the pulse of the American people there was no school of thought and so that's why I think in the end that's why he'll pass into history morcerf an average justice at best all right what's at stake now on the court John you writing a National Review with a fifth conservative justice the last remaining branch of the federal government will have slipped away from liberal hands and two of the four liberal justices now on the court are in their 80s Justice Ginsburg and Justice Breyer for the first time in about eight decades the country may have a truly conservative Supreme Court close quote now the first thing I want to do is establish what you mean by truly conservative I had to look it up eight decades ago the Chief Justice was Charles Evans Hughes right and I don't have too much of a feel for the Hughes court a few years before you've got Chief Justice William Howard Taft I think what you're arguing is this is all pre New Deal jury so what do you mean by cut you tell me you tell me no so I think if you really wanted to find what is a conservative court it's a court that thinks its main job is not to solve society's problems not to articulate the norms of the American people not to get involved all the time in every social dispute even between the President Congress not to have the last say on everything but a court that keeps its role limited to enforcing the meaning of the Constitution as originally understood in real cases and controversies that are between litigants and so I don't think we've really had a conservative court since before ft since FDR really pretty much destroyed the court during its confrontation during the New Deal and so since that time thing of the war on court even the burger court even the Rehnquist court the justices a lot of those I think a majority of them saw their job as much broader than that as almost like they were statesmen John you'd better take a moment to describe what happened under FDR because on that account you just gave that's a critical moment in in the history of the court yeah it's and we studied in law school and it still affects the court and its image of itself to this day so until 1936 the Supreme Court actually blocked a lot of the what's called the first New Deal things like the Agricultural Adjustment Act the the national cover these were there almost fascists in the way you look at it now these were laws that gave all the power to regulate the economy to these government boards which had a lot of private industrialists on it and they regulate the prices quantities of all goods in the country and so the Supreme Court I think correctly said this is not within federal power and it's unconstitutional it takes away natural rights and the government can't organize itself to have private people exercise government what I think these were all correct President Roosevelt attacked the court he won an enormous majority in the 1936 elections two-thirds majorities in the houses Senate and he said hey all those old justices they're from the buggy and whip era they don't know modern technologies in the national economy so I'm going to expand the Supreme Court to fifteen justices and he lost he went to Congress Congress even Democrats actually this is kind of what people say broke the New Deal coalition Southern Democrats refused to go along FDR actually went and campaigned against them in the primaries I don't know if that reminds you of anybody we have around today and but all those senators and Carson won FDR lost and FDR turned away from this project but at the same time the Supreme Court cracked they flipped on all these issues and basically said we will no longer limit regulation of the economy we're no longer protecting economic rights and we're going to fears later they said we're gonna spend our attention on social rights and individual civil liberties and move away from your right to contract right to own property and things like that so fundamental changes that's what leads us to gay marriage abortion being the focus I quote that that happened that is a piece of American history so if Justice Kennedy reasoned I have my views of the Constitution but we know that if this court prefers the original meaning of the Constitution to the politics of the hour the authority of this Court will be undermined and I have no choice but to look at the Constitution and at American politics and Antonin Scalia and Justice Thomas get to be originalist because I'm a real I saved the court time and time again they get to get all the conservatives like John you excited and say what purity I'm the guy who is realistic enough to provide decisions that would stick yeah I think you nailed it this is what's the date and time this is the first time has ever happened I mean you nailed it I think precisely justice if you try to understand and it's developed it's plausible there's something to it right yes yes if you were if you approach the but jobbing of justice as a politician right and you were worried about your legitimacy mm-hmm and you're not this is all the arguments FDR used against court you're not elected why do you get to stand in the way of the American people you should you should actually the court should be in harmony with the American people if you were a politician you would think the way you just described right you would say I've got to balance the courts right to be involved into place constitutional role but always worried about what the political system is going to do in reaction to us they like always take away our power and so you would try to keep the court's order in the middle of where the country is going and I think that's what Justice Kennedy thought he was doing every now and then say on free speech he might not have but you know you could look at the polling and I bet where he votes was pretty much where the middle of the American well the country was I take gay marriage for example is a great example President Obama campaigned against gay marriage right in 2008 by the time obergefell 's decided though the polls have switched and it's a generational thing or the poll you know if you we're never going back I think to the world before over to fell because just demographically young people support gay marriage in huge numbers but if you're asked Aliya I think or at Thomas or an Alito or even a Roberts you would say the framers of the Constitution did not think they were creating a national right to gay marriage at the time but if you take that view then you're right in a way you're saying we can over but I don't think they were I think in that case they were actually saying it's up to Congress and the state legislatures you decide you don't have to be popular why should we always look to the court to make these decisions for us I think the negatives down of what you're talking about is your right you could balance the courts roll make sure it's harmonious in America people guess who gets gets who guess who comes out of that more powerful than anybody the court court and the justices so the thing about justice is the swing above exactly so the the Thomas and Scalia view I think in a way is a more humble view of what a judge's role is because it says we can't decide all these hard questions you guys to silent this brings us to Brett Kavanaugh 53 years old Yale College Yale Law School he's Yael Yael clerked for Justice Anthony Kennedy helped to draft the so-called Starr report on Bill Clinton on the Bill Clinton scandal worked as a partner at Kirkland and Ellis a big-time firm served as staff secretary to George W Bush in the White House huge job and has served since 2006 on the US Court of Appeals for the District of Columbia Circuit a Court which is often called the second most important in the country does judge Cavanaugh have your vote oh yeah and I thought expect him to be confirmed by pretty much close to a party-line vote now John you grew up in Philadelphia you're always talking about the Phillies and the Eagles don't forget you go go laughter hey that's and cheesesteak and you have and here you are out here there's a populist streak in you John you judge Cavanaugh Ivy League you're Harvard Yale you can't fault him for that but he's living in Washington all his life does that bother you because this is that is he too much a product of a particular kind of elite of a limited circle actually I think that criticism is not just of Cavanaugh but of all the justices on the Supreme Court now they if you look at once judge Cavanaugh joins a court all the justices will have gone to Harvard and Yale so I don't know how I didn't get on the court I mean I went to both I have my bets covered so over here and so they all went to Harvard and Yale they all were lower court judges except for Elena Kagan who was Solicitor General but they all came up through this kind of professional training to be a Supreme Court justice think about the old grand days of the Supreme Court you had former secretaries of state you had like Charles Evans Hughes former presidential candidates or William Howard Howard Taft had been president former president a bad one but a former president oh you had governor's show John I'm gonna stick up for it but I'm ready I'm ready no you had so you had you had more geographic representation of the country in the court so we have what I would call I call it technocratic Court it's a court of experts technocrats all they've ever been all they've ever wanted to be our judges it's very unusual in our history it's been going and actually it's a it's a Republican conservative approach because after the Warren Court if you see the Warren court as the court that really took all this power pushed into all these social issues that was a Supreme Court chart you know Chief Justice Warren former governor of California a politician nominated rather by Dwight Eisenhower yeah right so the I think the Nixon but also this really came Reagan and Bush came forward there's appoint judges who have a record you know what they are they're not going to be two activists in a while because they've been lower court judges and have accepted the norms of judging not politics I don't know if that came true justice Kenny is a good example of how that didn't work okay that's again that's it I was in the Reagan White House during those nominations and there was no Federalist Society yeah you couldn't there was no way of vetting judges in those days the way that but this may be further to your point that Donald Trump turns to the Federalist Society says give me a list of good guys and the people on that list are the kinds of people you've described because they're precisely the kinds of people whom you can track over 20 years and see where they stand on the issues that's something new oh that that's again something that came about in the 80s is you say the federal society created a kind of conservative alternative to what liberals have long had which we call law schools you can train them to be liberal activists and so the federal side is sort of an alternative but this you mentioned Trump and I think we shouldn't forget that Cavanagh it's interesting you know Trump out sourced the selection of Supreme Court justices for the first time no president has ever done this and he's kept his word or he has said I'm going to pick from this care fully vetted list of conservative judges that the Federal Society has really vetted that's I think that's what swung a lot of conservatives on board the Trump campaign during the primaries and you know Trump you know I don't agree with them a lot of stuff free-trade foreign policy some uh you know there's some a lot actually domestic wanna camp but he's really kept his word on judges probably more than in any other area of his administration and Cavanaugh and Gorsuch our product of that all right let's go through if we could three or four cases or issues rather not cases but issues and you tell me how you think a Justice Kavanagh if he's confirmed would handle them the Affordable Care Act Obamacare Senate Minority Leader Chuck Schumer Democrat of New York quote we Democrats believe that the number one issue in America is health care the nomination of mr. Kavanagh would put a dagger through the heart of this cherished belief close quote what do you think so you know Senator Schumer has when it's been coming when it's come to what he's been saying about Kavanagh has a grasp on reality that rivals Michael Cohen right now he is just like so blatantly miss stating things and getting things wrong I think it's all deliberate though because she's a smart guy first of all the Supreme Court ultimately is not gonna rule on whether health care is a universal national right or not that's up to Congress when Cavanaugh was a lower court judge on the DC Circuit the Obamacare case actually came through their court before it got to the Supreme Court where as you remember Chief Justice Roberts voted with the four liberals saved hold it yeah saved that I was very disappointed in Roberts on this Kavanagh actually did not strike the law down on conservative grounds such actually in the grounds that Justice Kennedy wanted to in the minority when it got to Supreme Court he actually tried to wiggle out of the case and say it wasn't ready for judicial review and one thing he did say that actually liberals should appreciate is that he said that remember the whole case focused in the end on whether the 795 dollars people get charged for not signing up for Obamacare is that a tax or penalty conservatives said it's a penalty as a penalty a penalty but the Supreme Chief Justice Roberts said no it's a tax therefore and so comes within Congress's almost unlimited taxing power right justice Cavanaugh agreed with him actually in the law is justice judge Cavanaugh who first said in the lower courts actually that thing's attacks and so liberal Schumer and liberals should actually be applauded and count I think he's wrong they should be applauding Cavanaugh for that actually that he came out on their side in that case okay gay marriage you've already discussed this a little bit but here's a case where well let me give you a couple of the Wall Street Journal we doubt the court will overturn gay marriage even with a new conservative Justice Chief Justice Roberts will certainly not want the court to overturn the gay marriage case so soon after it was decided less to make the justices seem too political too soon to overturn it on the other hand here's what Chief Justice Roberts wrote in his dissent when obergefell was decided and incidentally he did something he'd been on the bench for a decade at that point John Roberts did something he'd never done before he read his dissent from the bench which is something they do in that body and demonstrate genuine anger I think that's fair to say quote just who do we think we are we are stealing this issue from the people close quote if he becomes if judge Kavanagh becomes justice Cavanaugh where's he stand on obergefell and gay marriage generally this is interesting because it's a great point because liberals are I think gonna all vote against judge Cavanaugh in the Senate they're attacking with these exaggerated claims I think they're making a big mistake because Cavanaugh has no views as far as we can tell on obergefell on gay marriage or abortion is a lower court judge in the DC Circuit you call it the second most important court in the land which i think is right those kinds of cases rarely come up and so we don't largely administrative law it's mostly government cases cases up against the federal government case about the power the agencies that's their bread and butter so we don't have any opinions much like guess who Justice Kennedy at the time he was confirmed we had no idea what he thought about abortion to if I were the Liberals what I would do is vote overwhelmingly for Cavanaugh and wrap my gauzy arms around him and tried to start persuading him about things like obergefell or things like abortion this is what works for them it worked on Kennedy himself it worked on Souter it worked on Blackmun and worked on you could go there are a lot of Republican appointed justices who've gone in Supreme Court without firm views on these matters and you know the conservative conspiracy theory is all the liberal press and the law schools and the bar they start working on him my judge judge Silberman who I clerked for famously called it the greenhouse effect because Linda greenhouse was the supreme court reporter for the New York Times you do what they like they get praised and all the popular media outlets and so being in Washington has an effect of sort of slowly dragging you over to the liberal side so Kavanaugh could be a justice like a Kennedy some behind C's gossip it was you know I think widely known that justice Kenney loves Cavanaugh he's one of his favorite clerks and I think because he's kind of like him Kennedy you know I think the gossip was at Kennedy when he rose on you know the NASA's retirement went to see President Trump it might have mentioned Cavanaugh's someone that he oughta think about a point there's also ska suppt the Trump would the White House was science trying to send out signals that they probably would appoint Kennedy a Cavanaugh nor did can it need to retire at this point so putting that all together I would say I would be shocked if Cavanaugh in his first few years as a justice were to vote to overrule the very cases that his former boss has mentor the person he's replacing those are his most important co-worker those are the things people remember him for gay marriage abortion I would be shocked to see Kavanagh vote it early in his career to overthrow those very cases if it's Kennedy's the reason you could say he's on this would be on the Supreme Court aboard again The Wall Street Journal as for Roe vs. Wade the abortion case was a legal travesty Roe the seventy-three decision as judge Bork famously put it the decision in Roe versus Wade contains not a single sentence of legal reasoning was a legal travesty and should be overturned but the court has upheld its course so many times that the Chief Justice and perhaps even the other conservatives aren't likely to overrule starry decisis that is the notion of a binding precedent on a five to four vote close quote by the way does this strap on the one hand the journal this is all from one editorial on the one hand the journal says can't overrule obergefell because it's too recent and then a paragraph later says by the way we also can't overrule Roe versus Wade because it's gold it's gold we'll come to start a decisis in a moment but so yeah Kennedy's not on the court during Roe but he writes the decision in Casey where they had it there was an expectation that the court might actually overturn Roe in 1992 so your argument with Cavanaugh as with obergefell so with abortion in general I think so that's so closely associated with Kennedy I I agree I think although and I think what would happen actually is that what you'll see is states will try to limit abortion regulate it more and more tightly but you're not going to see a state try to outright ban abortion again and so you'll see this you know so you'll see laws like the partial birth abortion ban which Kennedy voted to uphold you know which prohibited certain kinds of abortion late in pregnancy and so you're gonna see efforts to regulate those kinds of aspects of abortion and I expect Kavanaugh like Kennedy would vote to uphold that right to regulation but I bet States would unless they're really really stupid states should not try to ban abortion for a number of years until you have this more incrementalist or gradualist oppression McGann it's because you don't know what Cavanaugh thinks about portion has no opinions about it has never written or said anything significant about it all right one more of these special topics judge Kavanagh and Donald Trump another quotation from your favorite Democratic senator from New York Chuck Schumer it is unseemly for the President of the United States to be picking a Supreme Court justice who could soon be effectively a juror involving a case in a case involving the President himself close quote and by the way Schumer makes that point in public a few days ago now as we may record this program and a number of Democratic senators have cancelled their meetings with judge Cavanaugh we're not we shouldn't even be hearing these we should not even be holding hearings on this nomination they're doing Cavanaugh favor so what about that a painful have to be to sit through those meetings what about that as an argument just it's actually kind of unclear what Schumer's talking about so it's unclear Simon does he mean that Cavanaugh would somehow be a juror in Trump's impeachment trial I hope not because that's completely wrong right right the Chief Justice would sit as the trial judge the Senators are the jurors I was just that doesn't make any sense so maybe Schumer is trying to make a I don't know a different kind of point which is a number of issues do what John Roberts did in Obamacare try to construct this in a way that makes it don't get me started on that I think what Schumer Amy Schumer is saying and maybe other Democratic senators are saying oh and this is an argument that's been coming out just in the last few days there's something illegitimate about Trump being able to pick Kavanagh because trumps under investigation there may be some of these issues my hate that goes from court yeah okay so one is that's very just typical because did anyone say that about Clinton you know Clinton's under investigation during whitewater he appoints G he points Steve Breyer to the court while he's under investigation in whitewater he may he pointed Ruth Bader Ginsburg when all that's starting to come out do we say Breyer and Ginsburg are somehow legitimate justices it's ridiculous cuz if he took that argument seriously then every presidential act is illegitimate right because trumps under investigation I don't remember any Democrats taking that view during the the whitewater investigations Plus let the investigations can be my point of view on this is let the investigations continue let Muller do his job let it to an end but the president is the president until he's removed from office or I'm Pietschmann his actions are all legitimate under the Constitution got it all right a couple of big ones first the whole concept of the living Constitution we've touched on it two quotations the late Justice Antonin Scalia quote the Constitution that I interpret and apply is not living but dead or as I prefer to call it enduring it means today not what the current society much less the court thinks it ought to mean but what it meant when it was adopted close quote Justice Stephen Breyer the court should reject approaches to interpreting the Constitution that consider the documents scope and application as fixed at the moment of framing actually Justice Scalia says fixed at the moment of adoption not framing but close enough rather the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances close quote where do the bright Cavanagh come down oh I think Brett in the in cases where he's written opinions he comes down more on the Scalia side more on the so there's some ambiguity there well so he I wouldn't say he's a scholar of the original understanding of the Constitution but the the the opinions actually which point what he would do as a justice and where his main thrust would be it's actually quite consistent with Gorsuch and the other conservative justices is what he really wants to do is constrain the administrative state he's really attacked the roots of the constitutional doctrines that have given us this big welfare state that's our unaccountable ever-growing federal regulatory agencies who you know do things like regulate ponds that appear in your backyard as federal as waters of the United States and things like this when he in those opinions which he really seems to care about he does then goes back and he looks at the original the text of the Constitution what did the framers think what was the structure his opinions in those areas look very much like Scalia's opinions in those areas and he cites and relies on Scalia's fundamental pains about the nature of the executive power and the Kishin and so on but he's had such a limited range of cases we don't really know a lot about how he would approach the cases where I think Kennedy ran wild you know these social issues what does it do process clause mean what what does equality mean we really don't have a I think it's very say we don't really have a clue look Cavanaugh thinks about those are where you would not be an originalist that's where the temptation is the strongest to leave the ridge unless reservation okay on to the second big issue so we've established that you're in the cases he had on which he has opinions he's an originalist he's the historical reason got it okay so the question is are now even among real original ist's there is a big debate over starry decisis yeah which is the question the notion that precedent is binding once again the late Justice Antonin Scalia says something about it that I'm still quoting Antonin Scalia will be quoted for say it's like enjoying a fine bottle of wine it's not how I appreciate it that's what his opinions are like here Antonin Scalia is distinguishing his view of starry decisis from that of Justice Thomas whom I clerked for for whom you clerked and Justice Thomas and Antonin Scalia you'd know more about this than I but they're friends they hold each other in high intellectual and personal regard and they are both originalist s-- but they differed on starry decisis quote I don't want to say that brother Clarence doesn't believe in starry decisis but he doesn't much believe in starry decisis he is willing to go back and get it right even if we've gotten it wrong for a long long time I am says Justice Scalia on the other hand inclined to acknowledge that any legal philosophy whatever it is has to make an exception for starry decisis you cannot reinvent the wheel so for example most of the decisions that have been made erroneously under the Equal Protection Clause or the Eighth Amendment or whatnot I'm willing to say it's water over the dam where's Brett Kavanaugh going to come down ah so that's a great question so I tend in terms of what the right answer is I tend to side with justice Thomas and I think it's better I mean the course jobs that get it right and I think that's affected very much by his view of segregation you know the Plessy versus Ferguson was wrong the courts kept to anistar decisis head until the 1950s so if you you know I can't a Justice Thomas I think and I think he's right on this is the court should not stick to a Plessy versus Ferguson and have to wait all the way to Brown versus Board of Education in the 1950s to go back to the original true meaning the Constitution which is that the government cannot make distinctions on people of citizens for race and skin color I don't know what a started Assizes person who would say in that period between Plessy versus Ferguson and Brown versus Board of Education which is a 60-year period is it I think that's a fundamental challenge to people who believe in precedent here's the closest I ever got to asking Antonin Scalia about that I mean I thought one never really got to ask him questions you were just a prop for him to well it's well it's about to make a point this is about to make a point because I I found his position on stare decisis on satisfying a little actually unsatisfying and I quoted GK Chesterton to him here's the quotation it is the job of liberals to keep on making mistakes and it is the job of conservatives to keep them from being corrected good that's pretty good and he laughed yeah but that's all he did okay so his story decisis doesn't really matter unless it makes you keep to a mistaken precedent the precedents correct that you come out of the same outcome right anyway so I bet Cavanaugh again it goes to our discussion about what do we do with gay marriage what is he going to do with abortion I think on the issues that were really important to Kennedy and a part of his legacy I could see I could see Cavanaugh sticking to precedent but he's been trying again in this area the administrative state where he's really been trying to overthrow a lot of the things that have allowed this you know monstrously large welfare state to grow out of control he's been trying to extend precedent and new and unusual ways to try to chip away at its foundations so you know to give you example you were in the Reagan White House you remember the Independent Counsel investigation into iran-contra and there was a huge case called Morrison versus Olson mm-hmm which called on the court to strike down the Independent Counsel because it wasn't directly under presidential control the Constitution gives a president only in the Constitution the job of supervising all law enforcement and all federal law enforcement that's Scalia's finest moment the Supreme Court all of them vote to uphold the law I think because of political pressure at the time and I think 7 107 yeah and Scalia is the lone dissenter which is when he's what was the happiest everyone agrees Scalia was right by now if the Congress in the end doesn't renew the law everyone realizes the defects of letting a prosecutor run wild without any check on budget personnel or jurisdiction just sound familiar to anybody nowadays anyway so Cavanaugh took Scalia's dissent and he used it to strike down the consumer finance Protection Board that you know Elizabeth Warren's monstrous body that has the right to regulate every mortgage credit card because that person Cavanaugh said is protected from presidential removal but it's one person and that person controls huge swaths of the American economy so in a way Cavanaugh took what I think was the right original position but it was the losing position in the independent counsel and he's actually been resuscitating it and using it to attack these different parts administrative state so that should give originalist some hope and you know because if he was bound by sorry if he was really faithfully applying start decisis he should not be striking down all those agencies right because Morrison versus Olson said right you can even have an independent prosecutor who's outside presidential control if Congress wanted so I think I think on those areas that he cares the most about he's not gonna follow stary decisis he'll be more like a Thomas or more like Gorsuch has also been like this on the court so far Gorsuch has been voting a very hydrate with talent with Thomas and less so with Roberts and he's he also so maybe we're gonna say what does a trump court look like what a Trump Justice is like they're very suspicious of federal power they're very suspicious of administrative state they want to return power back to local government and they seem not to be so swayed by star decisis so far that would be Trump celerity toward Clarence Thomas all right this is hard because you know Brett Kavanaugh would give him a grade I asked you to grab for a long time I thought you were gonna ask me all these personal questions about him like one thing you know what kind of Cologne is he I'm sure it struck hard and waar so I you know so we were in law school together I actually when he graduated I took over his apartment so I know what's under Brett's bed and I know what's in his closets and I can tell you nothing he's been running for the Supreme Court since he's been 25 years old spotless I would say Cavanaugh is a kind of person I actually think is well suited to be on the court he's not he's not revolutionary you know he's not some kind of he's not going to be like an Earl Warren and try to overturn everything but he's going to be Morgan like more so in some ways Scalia's kind of was like that very Scalia was kind of a revolutionary on the court although you would not have predicted it when he was on I think Thomas is more of a revolutionary even than Scalia is but by being a revolutionary they can't get votes so you could they could not get a majority the court to go with them I think Kavanagh is gonna be in between he's not gonna be like a Kennedy but he's not going to be a revolutionary calling for overturning of large amounts of doctrine and precedent so I think he's going to be closer to it Kenny he's gonna be closer to a precedent based so I would probably say b-plus so he's just say you know this is a hard grade yeah I'm a hard well I'm giving him a Berkeley grade there or Stanford grade so it's inflated so you know I just say you know yeah we were all friends together because there were only six years at Yale and of course not they're only six or seven conservatives at Yale so we would have lunch together so I look back on those days now so one is now the FBI Derr one is now the secretary the James Ray was it yelling for a chris ray thank you yeah and then the Secretary of Health and Human Services Alex Heiser he was one of them and then Brett Kavanaugh is gonna be on the Supreme Court and then me why did I get screwed up teaching law of Berkeley without why why wasn't I good nicest one okay I know they're all working much harder for me for much less than me the from far less pay so maybe I won a couple less questions here where is this going let's stipulate that Judge Cavanaugh becomes justice Cavanaugh that he does that he is confirmed to the Supreme Court and the court has the most conservative court that it has had in eight decades and I'll tell you one more Scalia story I was in a room in which just a few months after he was elected to the Senate senator Ted Cruz of Texas stood and started talking about the need to roll back New Deal jurisprudence to get back to exactly the era you're talking about the era before the New Deal and while senator Cruz was speaking Justice Scalia who was seated about ten feet away started singing beautiful dreamer everybody broke up Ted Cruz sat down so who's right do we have a genuine prospect of rolling back however speed of rolling back even New Deal legislation or is that just a beautiful dream but a dream no no I think that's actually going to be the Trump legacy for the Supreme Court that's a huge like a huge legacy it would be a big impact its conservative swinging for the fences as it were but it's not going to happen all at once but you're gonna see I think first things like the Consumer Protection Board things there's this federal agency oversees all the accountants parts of Obamacare you're gonna see that most extreme the Environmental Protection Agency extending its powers of our back yards you're gonna see I think the outer limits of the executive branch and these agencies start to get pulled back another error you're gonna see is and Cavanaugh's written about this course--it wrote about this Thomas heard about this you're going to see an end to judicial deference to what the agencies do so when Congress gives power to the agencies they use very vague language and so the courts and this was Scalia actually believed in this the courts would defer to the agencies in their interpretation of their powers and how they use them unless the law was clearly against it they wouldn't stop the agencies Cavanaugh has said clearly he doesn't believe in this Gorsuch doesn't believe in this Thomas and Alito don't believe this so your goodness it's this will be the effect the only limiting factor on this is going to be Chief Justice Roberts because this is because he wouldn't go with the other conservatives on Obamacare he worries about are we going too fast or what we do or is what we're doing gonna cause a political backlash what are the other branches of government gonna say what are the American people is maybe the Chief Justice has to think that was I was going to what John Roberts have been a better justice if he'd been an associate oh yeah I'm not chief I think so I mean III think many people conservatives think that I think he's become he feels an institutional obligation yes like take Obamacare the right answer was that Obamacare was unconstitutional actually they struck down four out of the five issues and the only upheld it on this one tax and the gossip is the rumor says we came out in the press that Roberts originally voted to strike down Obamacare to be the fifth vote and then Senator Leahy started attacking the court the president started this is incredible as on precedent the president the united sates was attacking the court before the decision even came out Chief Justice Roberts changed his vote and on implausible grounds upheld Obamacare so because of that and that's the greatest expansion of regulatory power in the history of the country over any I mean it took over one eighth of the 1/6 of the economy so if Roberts isn't going to go along with that that was the moment to really rein in the Ministry of State he's going to be the one who's going to be the gradualist he will only I think take this project as far as he thinks who the American people or public opinion or the other branches are going to allow it which is unfortunate because I think that brings us back to what you started with the judge's job should just be what does the Constitution say how was it original understood how is it applying the case I wish they would not think about all these other considerations about what's the president think what's Congress think what did the polls show I think that's the trap Kennedy felon and I think that's a trap with Chief Justice Roberts has fallen in so you've mentioned two last questions you may dislike you may dislike them both but I'm you mentioned the Trump legacy and you also mentioned that two of the remaining of the four remaining liberal justices are both in their 80s you know I know that in politics is a week is a long time is Donald Trump around for a period of months days he finishes first term or do you think it's more likely than not that he'll be around for another six years he'll get a second term and that he'll get two more appointments to the Supreme Court well I can tell you the constitutional answer politics answer what he's gonna get reelected that's all up to you Peter that's job I will get you a whole gear a chief job the outcome just for all right well will decide who's which side we take later with cheese rate with cheese whiz not any not a year a feat New Hampshire Swiss cheese you and John Kerry putting Swiss cheese on the wrong sandwich in Philly so constitutionally he's gonna finish out his term so one if the molar investigations say it keeps going or suppose this michael cohen investigation in new york yield proof that President Trump I think the worst-case scenario is either coke conspired with this this Cowan fellow this you know is sorted a sorted bagman paying off you know hush money suppose he co conspired to violate the campaign laws or suppose Muller concludes that Trump doesn't seem like there's any evidence he conspired with the Russians but he obstructed justice by firing Comey which I I don't constitutionally yeah I don't really do this but all right yeah I I agree with you but suppose they both those investigations yield recommendations the president should be prosecuted the Constitution is pretty clear that the president cannot be prosecuted in office unless he's been removed by impeachment you have to impeach and remove someone first only then can you prosecute a president so there's no way that these criminal investigations could remove president Trump from office before 2020 so the only way it could happen would be through impeachment and we have seen already constitutionally how difficult it is to impeach is what President Trump has done a high crime and misdemeanor within the terms of the Constitution I doubt the actual what he's been doing with Cohen actually rises to a high crime and misdemeanor and I don't think that firing Comey is a high crime misdemeanor because he's within his constitutional rights to remove the FBI director but you would have to have a trial in the Senate first you'd have to have majority members the House vote to impeach and then you would have a trauma Senate you need 2/3 to convict I don't see the votes there so I think precedent anytime says the Senate convicted the president in American history I think it's zero but one vote came within one vote of President Johnson yeah so I don't he definitely finishes out his term he may get one more vote one more seat on the Supreme Court then if Justice Ginsburg you know is not in the best of health and is quite elderly you know doesn't make it to 20/20 and then you're the expert on the re-election I mean who the Democrats gonna put up to beat Trump he's got a growing at got a economy that's killing it and most of the my political science colleagues if you were to put them under oath they would say they believe that presidential election outcomes are really dictated by economic how the economy's doing more than any other issue the economy keeps growing to four percent and the Democrats put up Bernie Sanders or Elizabeth Warren you imagine what a great debate that would be I mean that President Trump's gonna key is gonna use the word Pocahontas thirty times in one presidential debate it'll be an all-time record so I I could easily see him getting reelected too just because the Democrats aren't gonna put up a moderate so then I would think if you were a Democrat and you love the Supreme Court and they care about it more actually than conservatives do that's a defining issue for the re-election for them because I do think Trump will get two more seats if he wins re-election right so you think there's a good prospect that this Trump legacy on the Supreme Court will come to pass and you're delighted by that you I again I know you enough to know you have all kinds of reservations about Donald Trump but on that point you're a happy man yeah he's kept his word on appointments and the people he's putting on the court are people who are trying to rewrite the constitutional balance back to the original intent which brings us to the last question your friend Brett Kavanaugh Republicans hold a majority over Democrats in the Senate of just 50 excuse me now that John McCain has died it is 50 to 49 with one seat unfilled we don't know how quickly the Governor of Arizona will name a replacement for Senator McCain but let's suppose it happens fast so it'll be 51 Republicans to 49 Democrats call it what's the vote so I bet it will be 54 plus whatever that is to make 100 so all the Republicans a little bit maybe woke up two or three Democrats who are in Trump states are running for re-election so that's you know mansion or a Donnelly or someone like that or even you know Nelson in Florida or I can't be whoever I can't go do whatever is right you know but one of the if one of those if those senators vote against Cavanaugh they're handing off an enormous issue to beat the hell out of them in the in the senatorial election so I think Kevin I actually picks up two or three votes the sad thing is that up until about ten years ago Cavanaugh should have gone an overwhelming majority because it's only been very recently really Gorsuch and you know actually is really Gorsuch but maybe a little bit Alito me Roberts where senators are voting by party line or Supreme Court confirmations that really has never happened before right John you professor of law at Boalt Hall at Cal Berkeley and visiting fellow at the Hoover Institution and Eagles fan two Super Bowls in a row you heard it here first I paid up I paid up that last bet thank you John I'm Peter Robinson for uncommon knowledge and the Hoover Institution thank you [Music]

Channel: Hoover Institution

Views: 36,367

Rating: 4.8678994 out of 5

Keywords: John Yoo, Brett Kavanaugh, Yale Law, Supreme Court, Supreme Court Nomination, Congress, conservative, Justice Kennedy, New Deal, Trump, Judicial branch, Law

Id: 7tVgHZbNMmQ

Length: 54min 8sec (3248 seconds)

Published: Wed Sep 05 2018