For more of the schedule go to booktv. Org. D. C. Circuit court judge Brett Kavanaugh spoke recently the Heritage Foundation about the judiciaries role in maintaining the constitutional separation of powers. Hes introduced by former attorney general ed meese. This is one hour. Good afternoon ladies and gentlemen. Welcome to the Heritage Foundation center for legal and judicial studies and to our tenth annual joseph story distinguished lecture. As you might imagine the namesake of our lecture is that eminent jurist, joseph story he was remarkable patriot who carried out the founders vision of a constitutional republic. Before joining the spring for it quite a career of his own. He was a congressman. He was a state legislator. He was the speaker of the massachusetts house of representatives, and he was also even while he was on the Supreme Court a professor at the harvard law school. Interestingly enough he was also noted as one of the most successful authors of the first half of the 19th century as a matter fact, when he was 65, that particular year, his book royalties gave him twice as much money as his salary as a justice of the Supreme Court. As many of you know he became, when he was appointed at that time the youngest justice to serve on the Supreme Court and one of the youngest ever to serve, he was appointed by president madison in 1811 and was actually, took office the following year in february of 1812. As most of you know im sure, he made a significant mark on american law in his 33 years on the bench, but his greatest contribution to jurisprudence is his renowned commentaries on the constitution in which he set forth a philosophy of judicial restraint. He was quite enamored by the philosophical approach to the law of chief justice marshall, and as he said, marshalls writings and the federalist with the two major sources as he was writing the commentaries. And so it is this lecture that we celebrate his legacy to the United States and to the field of law. The previous joseph story lectures have been delivered by judge clarence thomas, Justice Clarence thomas, Justice Anthony kennedy, judge robert bork, Professor John harrison at virginia law school, judge ray randolph, judge alice batchelder, judge poe scanlan, judge rogers brown and judge carlos maya. As our guest this evening that is joining this distinguished group of judges and professors is of course the honorable Brett Kavanaugh. As you all know he is a judge of the United States court of appeals for the District Of Columbia circuit. He was appointed by george w. Bush and took office on the 30th of may 2006. Before his appointment to the court, judge kavanaugh served for more than five years in the white house in various capacities. He began as an associate counsel and that senior associate counsel to the president and was assistant to the president and staff secretary up until the time later on of his appointment. During his career the judge has been a partner in private practice with a firm here in washington, d. C. He has been an attorney and office of the solicitor general of the United States, anticourt for a number of distinguished judges and he clerk justice committee, judge Alex Kozinski of the ninth district and judge walter stippling of the third district. Hes a graduate of yale college and also of the year law school. Please join me in welcoming our joseph story distinguished lecturer for 2017, the honorable Brett Kavanaugh. [applause] thank you, general meese, for the kind introduction. Im honored to be a to deliver the joseph story lecture. As germany said, joseph story had a profound influence on american laws as Supreme Court justice and as a scholar. Im honored to deliver a lecture in his name. Im particularly honored to be when i look at the distinguished list of past speakers, Justice Kennedy, justice thomas, my colleague ray randolph, my former colleague judge Janice Rogers brown whom i miss greatly. I will admit that ive not been a regular attendee at the story lecture for the last two years because, as john malcolm of heritage knows, every year it seems to fall on the same night as basketball tryouts for the cyl Girls Basketball team i cochaired blessed Sacrament School in d. C. This year i finally pulled rank and seniority and i moved the teams tryouts back tonight. So tonight i am with you. Last night i was trying with limited success to get 47 fifth and sixth grade girls to listen to me. [laughing] i will try not to use my coach voice with you tonight. The tryouts were good. Were going to have a good team. You are probably not here to hear about that, but coaching my daughters and the fifth and sixth grade girls possible team has been an up or part of my life for the last six years. It sometimes mentoring the winter unscrambling out of the courthouse to get to practice and sometimes i dont always transition that well. And last year i was frustrated at practice and i finally blew the whistle, and i guess yelled is probably a fair statement, yelled at the girls, you cant dribble to a zone press. Youve got to pass the ball. I guess my voice must have been like it was there, pretty loud because there was cited in the gym and theres really never cited in the gym with a bunch of fifth and sixth graders. One of the girls on the team, tatum, has a few doublet as a standup comic, broke the silence and said, hes using his judge voice on us now. [laughing] and they all started laughing at me. I love all those girls, and with him and mine tonight i also try not to use my judge voice on you. Im especially honored to be here with the general meese. To begin with on a personal level, im grateful to him for the kind support of my confirmation, the wonderful letter he wrote for me back in 2006. I think many others in the show will also helped through this process. As general meese knows well, you dont forget your confirmation process, and my process was interesting. I think thats a good word for it, interesting, he goes i was serving in the white house when i was nominated for the judgeship. I had worked there for five and half years before i became a judge. Actually standing here today some 12 years later, let me say first that he think the white house experience made me a far better judge that otherwise would have been. In terms of understanding of government, of the legislative process, of the regulatory process, of National Security decisionmaking, the pressure, the ups and downs and ins and outs of our government operates at the very highest level. I believe my white house experience made me a more knowledgeable judge certainly and also a more independent judge. Independent because working at the white house, least in my view, helps give you the backbone and fortitude to say no to the government when the stakes are high. I think john roberts and elena kagan both of whom have substantial white house experience would probably say that their white house experiences likewise have made them better jurists. But at the time in 2006 it is fair to say that certain senators were not sold on that. They were not sold the white house was the best launching pad for a position on the d. C. Circuit. Indeed, one senator at my hearing noted that id worked at the white house for more than five years, and said in his opening remarks, this isnt just salt in the wound. This is the whole shaker. [laughing] this is a true, after the hearing about that senator, my mom said to me, i think he really respect you, as only a mom can. [laughing] so people often ask me whether the job of an appellate judge is lonely or isolated. And the short answer is that it can be if you let it. The date the president signed my commission to be a judge, which was tuesday may 30, 2006 at 7 a. M. Not that you remember those things, i probably went up to the Supreme Court, Justice Kennedy for whom i had clicked for me in a private ceremony in his chambers with my family and Justice Kennedy chief Justice Roberts present. A Justice Kennedy been told i would get to my new chambers that afternoon and it would be a a phone and a computer and a desk, and no one would ever call me again. [laughing] so he advised me to get out and teach and speak and interact with the bar and students, something he had regularly done on the ninth circuit at that he has continued to do for his menus on the Supreme Court. Anyway, i listened. Ive taught fullterm classes the plastic it i try to get out to many of our events and visit law schools, and tonight im following his advice with the honor of delivering the story lecture. When Justice Kennedy says something, i listen. Me and 320 million other americans. I want to thank general meese not just for hosting me here and helping me in the confirmation process back in 2006, but far more importantly for the central role he played in leaving the revival of originalism and textualism in american law. I cannot emphasize enough how significant general meese has been in changing the direction of american law. I think often of chief Justice Rehnquist and Justice Scalia as to jurists who helped bring about a revolution in legal theory and legal doctrine. When we mention those two giants we also must celebrate general meese. He of course was responsible for many landmark policies and important decisions in his role at the white house and as attorney general. And as attorney general more than perhaps any attorney general in modern history, he took an interest in constitutional theory and doctrine. He delivered a famous speech on july 9, 1985, to the american bar association. Its a great speech, and if i can give you an initial homework assignment tonight, it is the best, go read his july 9, 1985 speech. But let me give you some highlights for now. His first paragraph, he said, i know the session she will be very productive. When i read that last week, very productive meeting of the aba house of delegates, i wondered, was that a lifeline, general meese . [laughing] by general meese then proceeded to talk about how utterly unpredictable his words in the Supreme Court of the 1980s could be when rendering its judgments. He referred to the snail darter case that he come out a few years earlier and remembered what someone said when the case came down. The bad news is that the snail darter one. The good news is that he didnt win under the 14th amendment. General meese then said that the court during its most recent term in 198485 continued to roll at large in a variable constitutional forest. He discussed three areas of the courts jurisprudence, federalism, criminal procedure, and religion. Discussing federalism and genovese said that that federalism helps us, quote, better secure our ultimate goal of political liberty through decentralize government. Well said. When discussing religion he said, quote, two of argued that the First Amendment demands of strict neutrality between religion and irreligion would obstruct the founding generation as bizarre. The purpose was to prohibit religious tyranny, not to undermine religion generally. Well said. In summarizing his views that general stated that far too many of the courts opinions were on the whole more policy choices that articulation of constitutional principles. He then noted in a critical passage that until there emerges a coherent jurisprudential stance, the work of the court will continue in this ad hoc fashion. He argued for a jurisprudence of originalism. To judge policies in light of principles rather than to remold principles in light of policies. General meeses speech struck a nerve in the american legal establishment, and represented a call to attention and a call to action for all those who are concerned about the rule of law and the role of courts. He urged more attention as he put it to the words of the constitution for the framers of the constitution chose their words carefully, he said. It is something said that the constitution is a document of majestic generalities. As i see it, as general meese described it, the constitution is largely a document of majestic specificity. And though specific words have meaning, which absent constitutional amendment continue to bind this as judges, legislators and executive officials. So if i could suggest another homework assignment for my talk today, it is of this. In the next few days block out 30 minutes of time and read the text of the constitution word for word. I guarantee youll come away with a renewed appreciation for our constitution and its majestic specificity. The text of the constitution binds all three branches, and begin thinking back to my confirmation process, i met with senator robert byrd at one time during the process when windows trying to get confirmed. This was an interesting beating, and he said i would never forget it. He said that at the very start of the meeting. He said you will never forget this meeting, and it turned out he was right. First he asked about my family, and at that point back in 2006 i said i have a oneyearold daughter. And he said wow, he said i have daughters. They are 68 and 64. [laughing] but then he pulled out his constitution. You know, it was right there and i was prepared. I had this same constitution right there, too. It is tattered now but i still have. He pulled his out and he read to meet article one language about the power of the purse. Why did he do that . He did that because the text of the constitution matters. He did that because if you remember senator burr, he really cared about the power of the purse. So general meese 1985 speech helped advance a straightforward philosophy of constitutional and statutory interpretation. It is not complicated but it is profound and worth repeating often. Judges job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the constitution as written, blindfold history and tradition. Dont make up new Constitutional Rights that are not in the constitution. Dont shy away from enforcing Constitutional Rights that are in the text of the constitution. Changing the constitution is for the amendment process. Changing policy within constitutional bounds is for the legislators. Remember that the structure of the constitution, the separation of powers and federalism, are not mere matters of etiquette or architecture but are essential to protecting individual liberty, structure protects liberty. And remember that courts, courts have Critical Role when a party has a standing enforcing the separation of powers in federalism limits. Simple but profound. Along with chief Justice Rehnquist and Justice Scalia and judge bork, judge silverman, judge ginsburg and many others in the 1970s and 1980s, general meese laid the groundwork for a rule of law is a lot of rules. For the notion of judges as umpires and not as policymakers. For the notion as he put in 1985, that judges should not be roaming at large in the constitutional forest. So a few months ago i told john malcolm i would talk tonight about the separation of powers. And i suppose that was not really a limiting selection of a topic for me. Because if you are in my judicial chambers, really at any point, you would hear it often my clerks, every case is the separation of powers case. And i believe that. Who decides is the basic separation of powers question at the core of so many legal disputes. And the bread and butter of our docket on the d. C. Circuit is interpretation of statutes. Usually when deciding whether an agency exceeded its Statutory Authority or statutory limits. That question of policing the balance between the legislative and executive branches, our Administrative Law docket, constitutes one of the most critical separation of powers issues in american law. And the most important factor is the precise wording of the statutory text. If you sat in our courtroom for a week or two and listened to case after case after case, and they do not advise everyone who wants to remain sane, but if he did that you would hear judge after judge from across the ideological spectrum asked counsel about the precise wording of the statute or regulation at issue. Statutory interpretation has improved dramatically over the last generation. Statutory text matters much more than it once did. If the text is sufficiently clear, the text usually controls. That text of the law is of the law. As Justice Kagan recently stated, we are all textualist now. By emphasizing the centrality of the words of the statute, Justice Scalia help to bring about a massive and enduring change on the Supreme Court and in american law. But more work remains. In my view, certain aspects of statutory interpretation are still troubling. And as i will explain, one primary problem stands out. Let me begin, one overarching goal for me is to make judging a more neutral, impartial process in all cases, not just statutory interpretation. The american rule of law as i see it depends on neutral impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a a Perfect World alleys asi envision it, the outcomes of cases would not often very basis sold on the backgrounds, logical affiliations or policy views of judges. This is of the rule of law as the law rules. The judge is on fire. The judge is not free to roam in the constitution or statutory forest as he or she sees fit. In my view this goa