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Kavanaugh Supreme Court Hearing. Aired 3:30-4p ET

Aired September 5, 2018 - 15:30   ET


[15:30:00] KAVANAUGH: doctrine is Justice Breyer who wrote about in the 1980s as a way to apply Chevron (ph).

The Supreme Court adopted that the Brown and Williamson case applied it in the UARG case, the one you referenced Justice Scalia's opinion, and what that opinion says it is. It is okay for Congress to delegate various matters to the executive agencies to do rules but on major questions of major economic work, social significance, we expect Congress to speak clearly before such a delegation and that is it had not happened in my view with respect to net neutrality and I felt bound by precedent therefore to apply the major questions...

KLOBUCHAR: Some minor rules would be OK, but not major. And I know in the decision you say well you'll know the difference when you see it and I think that's why the other judges on the court from - appointed by both parties went with the traditional and precedential way of how to look at this and you used the 1986 law review article by, albeit, Justice Breyer, and then dicta from the King v. Burwell case in 2015. And it just - what I'm trying to show here is this pattern where to say Congress should step in and do everything, you're stepping in in these cases.

KAVANAUGH: So I would say it's a pattern to adhering to precedent.

KLOBUCHAR: OK, but 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 the Federal agency actions 75 times and they said that you led the effort to reign in executive agencies in the press release when you were announced. How do you explain -- what did that mean, how you led the effort?

KAVANAUGH: I don't know - I - 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 and I've upheld them, I'm sure in the same range if not many more times and so - and on the - 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 - a pro this or a pro that record.

KLOBUCHAR: One last question in this area on consumer, so the major doctrine, major rules doctrine actually raises questions to me about your view of Chevron and as you know, it's that 1984 case. I would think its settled off but I'll ask you that where courts generally defer to reasonable interpretations of agencies and what would you replace it with if you're not going to uphold it? KAVANAUGH: The precedent says that courts should defer to reasonable agency interpretations of ambiguous statutes and 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 and I wrote a law review article in the "Harvard Law Review" about that problem of judges disagreeing about ambiguity and how much is enough.

But I also said in that article that Chevron serves good purposes in cases where it's somewhat of an overlap with the State Farm Doctrine so statutory terms like feasible or reasonable are terms of discretion that are granted to agencies and that court should be careful not to unduly second guess agencies. And I've written an opinion in American Radio Relay League where I made clear that court shouldn't be unduly second guessing agencies.

KLOBUCHAR: OK, I want to move to campaign finance since those were 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. And in those documents in one email 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. Valeo case from '76 being settled (inaudible). It seems like you have some issues with those rulings. How do you view the precedent created by Buckley and will you respect it?

KAVANAUGH: 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 email you're talking about the Supreme Court has twice struck down contribution limits, one in the case Randall versus Sorrell.


KLOBUCHAR: I'm aware of these cases.

KAVANAUGH: Justice Breyer wrote. So I don't think there's - Buckley v. Valeo is an important precedent. There's a lot of case law subsequent to those mails, McConnell, Wisconsin Right to Life, Citizens United which fleshes out some of those...

KLOBUCHAR: My issue is that we've had past nominees who said they would honor precedent and then they joined the Citizens United opinion and when I was hearing your discussion with Senator Whitehouse in which you talked about how Congress should step in again and they did with the McCain-Feingold bill and we tried and then it was struck down basically with Citizens United.

And so that is the problem, we are left with nothing now but a constitutional amendment, and I personally view this as - was a, you know, lawmaking from the court, the Citizens United case.

And 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?

KAVANAUGH: As a D.C. circuit judge, I've upheld contribution limits in two important cases, one ruling against the RNC in RNC versus FEC, where it was challenging limits on contributions to political parties and I rejected that challenge.

And another Bluman versus FEC contributions by foreign citizens to U.S. election campaigns, and I - and I upheld that wall.

KLOBUCHAR: 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 and 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?

KAVANAUGH: Our case dealt with contribution limits, so that's what I was so pining on in that case. So I'm not sure that there are the state of the law and the expenditure limits was not before us in that case, and so I don't want to opine on expenditure limits.

But I - what I did do -

KLOBUCHAR: Well you should know that it was - that opinion was cited by -

KAVANAUGH: Well I don't know if it was cited - well I don't want to talk about - I don't want to talk about pending -


-- I don't want to talk about a pending case, but my case I upheld - importantly I upheld limits on contributions in the RNC case and in the Bluman case and the Supreme Court has upheld contribution limits generally but struck them down when they're too low in cases like Randall versus Sorrell and McCutcheon.

KLOBUCHAR: OK, in light of the recent indictments, do you stand by your interpretation of the Bipartisan Campaign Reform Act in this case - in that case, the Bluman case?

KAVANAUGH: I'm not sure the question there -

KLOBUCHAR: You can go back to it on the second round. Look forward to it. OK, antitrust. Senator Lee and I run 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 Trinco, Twombly, Legion (ph) and most recently Ohio v. American Express. This could not be happening to my view at a more troubling time.

We're experience a wave of industry consolidation, annual merger filings increased by more than 50 percent 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 it's - 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'm just going to go to the guts of it from my opinion. The majority of courts and the - what happened here is a Republican majority FTC challenges a deal and then you decent and you apply your own pricing test to the merger.

My simple question is where did you get this pricing test?

KAVANAUGH: Well I affirm - I - 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, and I was following his analysis of the merger.

And that case is very, as I think we discussed, very fact specific, really turns on whether the larger supermarkets sell organic foods or not. And so that was a factor.

KLOBUCHAR: But where did you get the pricing test is what I want to know, because you used a different test, and I'm trying to figure that out, what legal authority actually requires a government to satisfy your standard to block a merger.

[15:40:00] I think what I - I remember in our discussion you cited these non-binding horizontal merger guidelines that you used to come up with this test.

KAVANAUGH: Well you're - you're looking at the effect on competition, and what the Supreme Court has told us at least from the late 1970's is to look at the effect on consumers and 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 is there an organic food market solely or is there a broader supermarket market, and that's what the case -

KLOBUCHAR: I know, I was just trying to get to where that - that new test came from. So in the second case you also dissented in the Anthem case last year, and 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 healthcare in the long term and what was viewed as poor quality insurance.

And 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.

And 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?

KAVANAUGH: It's a very fact specific case and the health - the market in question there where two health insurers that were not selling health insurance in the down stream market, but we're acting as purchasing agents for employers in the upstream market where they negotiated prices with hospitals and doctors.

And so the theory of 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.

And I pointed out at the end of my dissent, Senator, that there might be a problem in the - in the upstream hospital doctorate (ph) market, but I did not think there was a problem in the market that was that issue in the case.

And I specifically said I would have sent it back to the district court for analysis of whether the merger was a problem and that other - it's a - it's a three - it's a -

KLOBUCHAR: But you did suggest that the courts should disregard two cases that have been widely relied on for more than 50 years in antitrust, Brown Shoe and Philadelphia National Bank.

Do you think courts now applying these cases are wrong to do so?

KAVANAUGH: I think the Supreme Court in the 1970's 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 1970's, the Supreme Court moved to focus on the effect on competition, which in turn is really consumer - what will be the effect on consumers.

KLOBUCHAR: OK. Thank you and could I just -

GRASSLEY: Senator Cruz.

KLOBUCHAR: -- one sentence here, Mr. Chair?

GRASSLEY: Yes, proceed.

KLOBUCHAR: 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, I - appears to me that you would go even further.

And I think we need less mergers, not more, and more competition.

KAVANAUGH: Can I - can I add one thing -


KAVANAUGH: -- one thing? When I referred to the overlap of Chevron and State Farm, that's when I was talking about words like feasible and reasonable. I just - I wasn't sure I was clear on that.

KLOBUCHAR: Thank you.

GRASSLEY: Senator Cruz.

CRUZ: Thank you, Mr. Chairman. Welcome back, Judge Kavanaugh.

KAVANAUGH: Thank you, Senator.

CRUZ: 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 Capital 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 - the tremendous work that the men and women here are doing.

WHITEHOUSE: Mr. President, I think we'd like to second and - Senator Cruz, second that sentiment on our side as well.

GRASSLEY: 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.

CRUZ: Judge Kavanaugh, let's start with just a general question. What - what makes a good judge?

KAVANAUGH: 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 litigator or another, of one policy or another. Someone who reads the law as written, and formed (ph) by history, and tradition, and precedent in constitutional cases.


The law is written and formed by the cannons of construction that are settled in statutory cases, that treats litigants with respect, that writes opinions that are understandable and that resolve the issues. I think civility and collegiality help make a good judge. A good judge understands that real people are affected in the real world. The litigants in front of them, but also the other people affected by the decisions the judge decides, or the court decides in a particular case.

A good judge pays attention to precedent which is - on constitutional cases, of course, routed in Article III 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 and that's a - those are some of them. I'm sure there are more.

CRUZ: One of the things that I was looking at, it's striking, both, overheated redirect we have heard from some of our Democratic colleagues, and also from some of the protesters over the last two - 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 percent of the time. Not only that. Of the 28 published opinions that you've authored where Chief Judge Garland was on the panel, Chief Judge Garland joined 27 out of the 28 opinions you issued when you were on a panel together.

In other words, he joined 96 percent 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 percent of those opinions. What is your reaction to - to those - those data and the level of remit?

KAVANAUGH: 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, and he's very careful, and very hardworking, 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, judge who's not trying to impose any personal preferences on to the decision, but take the law as written. And that's what I - I've tried to do in those cases. And 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. And 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 of your arguments and seeing judges decide cases in real time. And I think those statistics reflect - reflects the reality of how judges go about their business. Like I've said several times, I think of the Supreme Court as a team of nine and I'm going to try to be team player on the team nine.

That of course there are going to be disagreements at times, so I don't want to overstate. But if you have that mindset of we're a court, without sitting on different sides of an aisle, without being in separate caucus rooms.

Trying to find what the right answer is and I think there is a right answer in many cases, and, maybe, a range of reasonable answers and some others. And I think that's what those statistics reflect of me.

CRUZ: So, you talked about the difference between your own policy preferences and what the law describes...


CRUZ: ...or mandates?


CRUZ: How would you describe a judicial activist?

[15:50:00] KAVANAUGH: I would describe a judicial activist as someone who lets his or her personal preferences override the best interpretation of the law. And that can go in either direction. So, a judge who strikes down a law as unconstitutional, and the text and precedent don't support that result, or a judge in the other direction who upholds 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 a statue 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 - review in the committee report and I'm going to super-impose that onto the text of a statute passed by Congress. That's, to me, the definition of a judicial activist adding to or subtracting from the text as informed by the precedent.

CRUZ: In 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 - on CSPAN care about the separation of powers?

KAVANAUGH: People should care about the separation of powers because it protects individual liberty, and it's really the foundational protection of individual liberty. We think of the first amendment, freedom of religion and freedom of speech, as foundational protections of individual liberty, but as -- as Justice Scalia used to say, the old Soviet constitution had a bill of rights but it was meaningless in operation because they did not have an independent judiciary, they did not 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 -- the independent judiciary that helps enforce those rights. Secondly, the whole structure, as I have explained, tilts toward liberty in the sense that you start with a system -- it's hard to pass a wall to affect what you do or cannot do, hard to get a law through Congress. And that's by design. There's a -- the bicameralism principle, a House and a Senate and as well as adding the president 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, some -- or the executive branch has 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 doesn't mean you go straight to prison, you go -- if you're charged with a crime, you go before an independent judiciary.

And just add further protections for liberty, you have a -- the jury protections that are in --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 -- for example, members of the 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. So the document's just chock full with protections of individual liberty and that's 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.

CRUZ: How about the doctrine of federalism? That -- 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 -- why Americans watching this hearing at home should -- should care about the principles of federalism?

KAVANAUGH: 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 -- if the U.S. constitution only protects the fourth amendment, only protects your -- against unreasonable searches and seizures up to a certain line, it' s possible that 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. There's not always the same views in -- in Texas that there might be in California, for example, on particular issues. And so you have different laws --


CRUZ: Vaguely (ph).

KAVANAUGH: Yes. And different laws in those states. And also, I think the federalism serves the -- the more general idea of the government that's closest to you for most of your day to day activities -- and my wife's of course, and 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 -- and federalism in that sense it 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 -- is a classic one.

CRUZ: So what is the importance and the relevance of the 10th amendment?

KAVANAUGH: The 10th amendment is -- protects federalism in the sense of ensuring that the states have independent sovereign -- they make clear, which is also clear from the structure, but reinforces the idea that the states are sovereign entities that have independent authority under the Constitution and that they have the status as separate sovereigns under the Constitution.

And so you were solicitor general of Texas, of course, and I know you represented the state of Texas in many cases where the sovereignty of the state of Texas to pass its laws and to enforce its laws was critical and the sovereignty of the individual states is important for the people, again both for the accountability of the local government and also for the protection of individual liberty and I think the 10th amendment underscores that.

It also makes -- it helps underscore something else, which is the states can't be commandeered by the federal government. Commandeered is commandeering doctrine of the Supreme Court which recognizes that -- and this is from the structure as a whole and underscored, but the federal government can't order states to -- to do certain things that the states themselves have not chosen to do. And so that's an important part of the federalism principle as recognized by the Supreme Court and that comes out of Constitution as well.

What you make of the ninth amendment? Robert Bork famously described it as an -- as an ink blot. Do you share that assessment?

So I think the Ninth Amendment and the privileges and immunities clause and the Supreme Court's doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the Supreme Court now, which is that the Supreme Court precedent protects certain unenumerated rights so long as the rights are, as the Supreme Court said in the Glucksberg case, rooted in history and tradition.

And Justice Kagan explained this well in her confirmation hearing, that the Glucksberg test is -- is quite important for allowing that protection of unenumerated rights that are rooted in history and tradition, which the precedent definitely establishes, but at the same time making clear that when doing that, judges aren't just enacting their own policy preferences into the Constitution.

And an example of that is the old Pierce case where Oregon passed a law that said everyone in the state of -- this is in the 1920s -- everyone in the state of Oregon had to attend -- every student had to attend a public school. And a challenge was brought by that by parents who wanted to send their children to a parochial school, a religious school. And the Supreme Court ultimately upheld the rights of the parents to send their children to a religious parochial school and struck down that Oregon law.

And that's of the foundations of the unenumerated rights doctrine that's folded into the Glucksberg Test and rooted in history and tradition. So how you get there is -- as you know well, Senator, there are stacks of law reviews written to the ceiling on all that. Whether it's privileges and immunities, substantive (ph) due process, or Ninth Amendment. But I think all roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test.

CRUZ: Let's talk a little bit about the First Amendment. Free speech, why --