Candidates, nominees from president republican president s have learned a lot about how to deal with the hearings. When you heard kavanaugh say as he did, talking about the parties to the case that theyre Flesh And Blood Human Beings and we need to have empathy for them and real world consequences of the court are very important. As a political matter, great stuff. A legal matter, its nonsense. Were youre an Appellate Judge and an issue comes before you, the issue is not the parties. Youre to resolve the legal issues. Its a purely legal matter. The parties may happen to be the case that they pick to do that. Now, obviously its as well as a human being to say you care about the parties, yes, you should, but thats smart to say that. Bork said when he was asked about why he wanted to be on the court back then, he said among other things, he said it was an intellectual feast. His critics got all over that. To him its a theoretical matter
kavanaugh. One is cory booker and kamala harris. No doubt they will try to put down markers that might propel that for them in the future. I think the whole issue for them will be the integrity of the court with judge kavanaugh as the swing vote in the kennedy seat. Its interesting to me watching the democrats strategy throughout the day, i think clearly this morning the effort by Senator Leahy was really about whether or not you can be trusted. You know, leahy was saying you were using stolen documents or suggesting as such. Kavanaugh said he didnt know that those documents were stolen or taken wrongly from the committee. And then this afternoon, you listen to sheldon whitehouse, the senator from rhode island. Hes talking about dark money. Again, dark money being behind the Federalist Society and other organizations that have been putting conservative judges on the court. In both cases, i get the sense
that they think theyre not stopping the nomination, but they are raising questions both about the integrity of the nominee and whether or not theres a shadow or dark money hand behind him pushing him on President Trump even and secondly about the court again being influenced by money in terms of which cases come before it and whether the court is being pushed in a direction that is not in keeping with the true interests of the american people. All right, judge. Favorite federalist paper. Ill take madison. We have a government because men are not angels. Look, theres three audiences here. One is senator paul, Senator Collins and senator mccall. The second is the general public. Im with chris wallace. I have tooth picks keeping my eyes open during senator
whitehouse who i thought was going to be aggressive. He put everybody to sleep. The third audience is the hard left of the democratic base. I dont even think that the democrats on this committee have served that audience. No one has laid a glove on judge kavanaugh. Hes not only coming off as brilliant, hes coming off as human and warm and likable. The inevitable next justice on the court. Do we have dana in new york . Lets go to you. As you watch this play out this afternoon, one of the things that strikes me is the fact that as grassley brought up, senator grassley, a lot of these complaints and we think about whitehouse and you think about leahy, that neither one of them availed themselves of the opportunity to look at these confidential documents when they had the opportunity. The only one that did was klobuchar. Yet theyre still complaining about not having access to the documents. In fact, at one point, Senator Leahy had to concede
that actually Brett Kavanaugh had not sent the emails. He wasnt on the one email he was looking at. It was a clever ploy to try to get back around to the complaint that there are not enough documents but i dont think it made the sale. Brett kavanaugh, hes been extremely compelling as my colleagues have said. They havent laid a glove on him and it has separated the true legal scholars of america who understand our constitution from those of us that watch legal dramas on tv and think we know what were talking about. The judge is getting a kick out of that one. Really is amazing. When he quotes from the federalist papers, like almost a bingo game here for which one hes going to come up with next. What the democrats, one of the things theyre doing, the democrats so far and youre right, stay tuned because there will be a lot of fireworks with the next younger democrats getting up to question kavanaugh, but i believe theyre moving to try to influence kavanaugh instead of trying to block him. You saw that with senator whitehouse saying to kavanaugh, when you get there, could you make sure you check in on this issue . Its a concern to me. Kavanaugh said absolutely, id be happy to do that for you. The last thing on the protesters, theres a law of diminishing return. When you have somebody talking about the importance of our constitution, how the Founding Fathers thought about separating the branches of government and then you have incoherent impossible to hear screams from the background interrupting, its hurting their cause. All right. Panel, stand by. Just to give you a sense of our programming here, well take a quick break as we get back to the hearing and then back to regular programming at 4 00 p. M. With neil cavuto. Experience a blend of refined craftsmanship. And raw power. Engineered to take the crown. The lexus ls 500 and ls 500h. Experience amazing at your lexus dealer. Back to the hearings now. Senator klobuchar is now questioning judge kavanaugh. Is there anything in those documents or in the Staff Secretary Documents that you think we would like to know that is relevant to some of the topics we discussed today . You must know what is in them. Before you answer without taking time off of her time, its incorrect that committee confidential, no senators can see those records. Any, all 100 senators can see those records. In fact, we set up separate terminals so people can go there. We havent had very many people take us up on the offer. Mr. Chairman, not to go into my time either to respond to you, i wasnt talking about those 189,000 documents. I was talking about the ones that were not allowed to see from the staff secretarys time as well as 102,000 that the white house has asserted privilege on. So im not talking about the 189,000. I stand corrected. All right. So again, i asked if theres anything in those documents that you think would be relevant to our discussion here. Senator, those documents are president bushs documents and for the committee and the bush library and the Executive Branch to negotiate about. As discussed, i have 12 years of judicial record and this is not a new issue. This is an issue that came up in Justice Scalias hearing and Justice Roberts with the sg documents with Justice Kagan those are Solicitor General. Im talking about the ones in the white house time. Im not seeing a distinction. Theyre Executive Branch documents. Theres one Executive Branch. One is involving the ongoing Solicitor General. One more question here. You said Rush Decisions are not always the best in answer to the
discussion with senator lee. You think a good judge would grant a continuance to someone that received 42,000 documents on the day before the start of a trial . Senator, thats a decision for the committee. Im not familiar with the circumstances of the document. On the Solicitor General, with chief Justice Roberts, it was not an active case. It was four years of documents from the time he was Solicitor General from 1989 to 1993. It was my understanding it was those documents. My point is, its not a new issue and its not an issue for the nominee to decide. Theyre the former president s documents. Why dont we move on to the executive power issues. Yesterday i mentioned your submission to the university of Minnesota Law Review. We thank you for making our law review so famous. In that article, you said a president should not be subject
to investigations while in office. You said in our meeting that congress would likely act quickly if the president does something in your wards dastardly, a word that you used in the article. Im struggling with the Practical Implications of that. What about a president that commits murder or if she jeopardizes National Security or he obstructs an investigation or white collar crime. How do you differentiate between these crimes when you characterize them as dastardly . Theres several issues going on in that question, senator. The first thing i want to underscore is that what i wrote in the Minnesota Law Review was in 2009 when president obama was president or becoming president , was thoughts on a variety of topics reflecting on my experience i want to pick up the tempo with my questions because i have so many of them. Could we get to that point about the dastardly . That was a proposal to be considered. It was not a constitutional position. I did not take any constitutional position on the issues youre raising. I want to underscore that. If a constitutional question came to me, i would have an open mind theres no clear text in the constitution that speaks to the question. So these are your own recommendations based on your own views and experience. Would that be a fair theres two Different Things going on. The one is about special counsel investigations, for example, our Criminal Investigations. And or civil lawsuits. That is a question for congress to consider, whether they want to supplement the protection provided by Clinton Versus jones because theres a lot of criticism. The second question getting to your point is what is an impeachable offense. Thats a decision for you, not for me. Because the house and the senate im figuring out how whether
we know something is dastardly or not if we cant investigate it . Youre asking for is it a high crime im asking about your position that a president should not be subject to investigations while in office. The dastardly are you youre only saying that they should be subject to investigation as part of an impeachment and theres no other investigation that could occur . Is that no. On constitutional position object Criminal Investigation and prosecution, i did not take a position on the constitutionality period. The idea that i talked about is something for congress to look at if it wanted. Thats point one. Point two is the idea that what is an impeachable offense. That really is a question for the house and the senate. Let me move on. This is about actual opinions and really along the same lines that i know Senator Coons will talk to you about. But in the seven sky v. Holder case, i quote, this is you, under the constitution, the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional even if a court has held or would hold the statute constitutional. So you told me when we had the comment in my office that you attempted to clarify your views two years later in the aiken county case. It seems inconsistent to me. Is it the case your views as expressed in opinions, not Law Review Articles, that a president can ignore a law and until a Court Upholds it or a
president can continue to ignore a law even after a Court Upholds it like you said in seven sky . Ignore is not the concept there as i think we discussed when we met. When had a good back and forth on that. The concept is Prosecutorial Discretion. Thats the concept that i referred to in aiken county opinion to explain the foot note youre referencing. In Prosecutorial Discretion is firmly rooted in the United States versus Richard Nixon case says the Executive Branch has the exclusive authority and absolute discretion whether to prosecute a case. Thats an exact quote. Heckler versus cheney says that that applies in the civil context. The limits Prosecutorial Discretion is wellrecognized. In other words, the u. S. Attorneys office might prosecute gang violence, but let low level marijuana offenses go
in terms of an exercise so you if a court has held a statute constitutional, do you believe a president should have to enforce it . So for example, lets talk about for example the marijuana laws. Those are constitutional. But a u. S. Attorney or the Attorney General could say were not going to devote our resources to lowlevel marijuana offenses. Those are constitutional let me try one other example with you. The texas case on preexisting conditions. The administration has taken the position that its unconstitutional that part of the Affordable Care act, that Insurance Companies could throw people off of their insurance if they have a preexisting condition. So lets say that that law is found to be constitutional. Could the president choose not to implement the part of the law providing protections for preexisting conditions . Senator that is a pending case. I cannot talk about it. Okay. This is just my concern because of this expansive view of executive power and where it brings us. I want to move on to consumer issues. In 2016 you wrote an opinion that was later overturned by the full d. C. Circuit. You found the Consumer FinancialProtection Bureau unconstitutional. The majority recognized that millions of people were recognized by the financial crisis and they upheld this bureau and we know now in real time the bureau has helped about 30 Million Consumers obtain more than 12 billion in relief. You dissented in the case. I want to talk about the consequences of this legally. I know you focussed on the bureaus structure. You said that agencies like the cfpb amount to a headless fourth
branch of our government and they pose a threat to civil liberty. So as a follow, do you think the other independent agencies are constitutionally suspect . The Supreme Court is obvious upheld since 1935 humphries Executive Decision that the concept and practice of independent agencies. On the cfpb decision, the structure of that agency deviated from the traditional historical practice of independent you think the humphries case of 80 years ago is correctly decided . Its a precedent of the Supreme Court and its been reaffirmed many times. On the cfpb case, i need to get this out. I did not say the agency had to stop operating. It can continue to operate and still operates. My constitutional concern is the structure with the single member
head, which had never been done before for an Independent Agency of that kind. My remedy would not have been to invalidate the agency at all but to have make that person removable at will. Then you could have, if you wanted, amend the statute it also concerns me because other agencies like the Social Security administration, which you note in the dissent, in the opinion, they are also just headed up by one person. Right . So does it follow that agency as well would be unconstitutional . Again, senator, my go from the back door, which is the remedy, if theres a problem, is not that the agency has to stop operating. The remedy is that the person, a Single Person, would be removable at will instead of for cause. The agency would operate wouldnt have anyone heading it up . No. Have a Single Person heading it up. But removable at will in the
case of the cfpb i would like [protesters in background]. I want to turn to what the majority felt about your dissent. I think they recognize that the dissent would threaten many if not all independent agencies. I think they specifically mentioned the ftc. I would add other ones like the federal reserve, securities and exchange commission, does it follow that you think these agencies are unconstitutional . I didnt say anything remotely like that respectfully, senator. All i was talking about was a singleheaded Independent Agency. Thats like Social Security. The sec, the ftc, those are the traditional, the ferc, the fed, multimember independent agencies. So those agencies are all the Traditional HumphriesExecutive Agencies. The concern i explained goes back to your point about federalist 47. If you have an Independent Agency that is completely unaccountable to congress or unaccountable to congress or the president and one person in charge, that becomes an extremely powerful position. Okay. Social security has been like that for a long time. So my issue is, when we were talking about executive power, you talk about how congress has to step in. Thats a lot of the argument that you made to my colleagues. Senator sasse and congress has to step in. In this Case Congres