Democrats are absolutely desperate to stop the Senate from confirming
president Trump's extraordinarily well-qualified second nominee to the
Supreme Court judge Brett Kavanaugh who is currently serving with distinction on
the US Circuit Court of Appeals for the District of Columbia Cavanaugh is a
brilliant jurist who successfully navigated the confirmation process
twelve years ago to get on the appellate court where he now serves and by all
accounts the judge is a dedicated father and husband respected and admired by
those he has worked for and fault with without even the slightest hint of
scandal in his background yet Democrats have declared war on president Trump's
nominee even though voters who elected Trump did so in part because he promised
to pick Supreme Court justices from a list of outstanding candidates that he
made public I'm going to fight this nomination with everything I've got
sending Minority Leader Chuck Schumer dn.y said recently flanked by ten
Democratic members of the Senate Judiciary Committee Schumer made it
clear that his party will do everything short of breaking the law to keep
Cavanaugh from taking the high court seat of retiring Justice Anthony Kennedy
but much to their frustration Democrats can't keep Kavanagh off the Supreme
Court with a frontal assault Republicans hold 51 seats in the 100 member Senate
and a handful of moderate Democrats up for re-election in November in states
that voted for Donald Trump in 2016 may vote with their GOP colleagues to
confirm Cavanaugh MBA pack chair Scott Bolden and former deputy independent
counsel Saleh Weissenberg debate video Democrats gear up for fight over
Kavanagh nomination fearing they don't have the votes to prevent Cavanaugh's
confirmation Democrats are developing a strategy of obstruction and delay this
strategy would block Cavanaugh his confirmation vote by making a patently
absurd demand for as many as several million pages of records from his
extensive government career as a Supreme Court Clerk an attorney on the
investigation that led to the impeachment of President Bill Clinton a
senior aide to President George W and an appeals court judge under this
plan Democrats would demand the release of every single record that might be
relevant to Cavanaugh including emails which could effectively push the
hearings and vote well past the November midterm elections when Democrats might
win majority control of the Senate and then be able to defeat Cavanaugh's
nomination Democrats may demand all documents relating to Cavanaugh's time
working on the Clinton whitewater investigation for Independent Counsel
Kenneth Starr but the nonpartisan National Archives has reported that
there are about 20,000 such documents in its possession and that it would take 22
months to five years to review and release them and responding to a lawsuit
by a public interest group under the Freedom of Information Act the George W
Bush Library and Museum has stated that fulfilling the group's demands for
documents about Cavanaugh's activities as a White House Counsel and staff
secretary would take 20 years and in any case would not include nearly 14,000
pages of materials exempted under law President Trump picks Brett Cavanaugh to
replace the retiring Justice Anthony Kennedy on the Supreme Court here's a
look at Trump's nominee video who is Brett Kavanaugh Trump's Coda's pick
delays of this magnitude are to use a legal term absolutely nuts before
yielding two demands for the review and release of hundreds of thousands or
perhaps millions of pages of documents Republican senators should demand that
their Democratic colleagues limit their demands to documents truly relevant to
judge in Cavanaugh's fitness if Democrats refuse Senate Majority Leader
Mitch McConnell r-ky would have grounds to schedule a timely vote before the
November midterm elections after all the object of the disclosure is not supposed
to be to delay and defeat a nomination but to permit the Senate to make a fully
informed judgment about the nominees merits if ten Democrats on the Judiciary
Committee tell the world that their minds are completely closed regarding a
nominee as they have done they are also saying that no amount of additional
information can change their minds Senate Democrats had plenty of time to
review this material in the three years yes three years
in which they held up Cavanaugh's nomination to the federal appeals court
in Washington another multi-year delay to review
Cavanaugh's nomination to the Supreme Court would be unjust and could set a
dangerous precedent that could leave seats on the High Court vacant for years
Democrats might also prompt a fight over executive privilege to further delay
matters as a White House aide Cavanaugh worked on matters of the highest
sensitivity as the Supreme Court recognized in the Watergate tapes case
the White House can claim an executive privilege the right to keep discussions
between the president and his advisors secret the Supreme Court said this right
of executive privilege would rise to its highest level if the subject involved
national security military and diplomatic affairs and law enforcement
but that other subjects might give way if the need of the other branches were
compelling enough Senate Democrats might try to delay a vote on Kavanagh so long
as the White House invokes executive privilege over Cavanaugh's work as an
aide the White House could extend a hand of cooperation by waiving its right of
executive privilege over all but the most sensitive national security and
military documents but the White House should also resist the temptation to
give up all of its rights because that could set a precedent that would tie the
hands of future presidents and would also discourage qualified candidates
with previous government service from becoming judges instead the White House
should stand firm that it will not produce the documents from Cavanaugh's
time as president george w bush's staff secretary when his job was essentially
to control the flow of memos and orders that require the president's personal
review and signature these documents would have little to do with Cavanaugh's
judicial views because he served as gatekeeper rather than author of the
documents he gave President Bush the Trump administration is not trying to
stonewall document production the Justice Department has told each of the
93 US attorneys nationwide to provide up to three staffers to review documents
relating to the Cavanagh nomination over the next few weeks this kind of effort
to speed up the release of documents requested by the soon at is
unprecedented senator Orrin Hatch Republican Utah a veteran of many
years on the Judiciary Committee hit exactly the right note yes hatch
acknowledged there is a lot a lot of documentation they are going to have to
disclose but at the same time hatch warned I think you can ask for too much
here is the bottom line whether Democrats like it not Donald Trump is
the duly elected president of the United States whether they like it or not
voters elected a Republican majority to the US Senate obstructing and paralyzing
the functioning of the u-s government including the supreme court is harmful
to our national interest and dangerous if democrats want to control who gets
seated on the Supreme Court they will need to get the American people to put
them back in charge of the Senate and elect a Democratic president joining me
now for reaction are two esteemed attorneys salt Weissenberg was the
deputy independent counsel during the investigations into Bill Clinton knows
Brett Kavanaugh and Scott Bolden is a Democrat and chair of the National Bar
Association political action committee great to see you um let's sit with you
Scott I think it's completely fair game for the Senate use their constitutional
responsibility seriously question Cavanaugh's judicial philosophy his
approach to the Constitution and ask him about past cases that's what you should
do in your process of reviewing these nominees but what you heard from Chuck
Schumer is something quite different he's now demanding contrary to what he
said one year ago one year and three months ago that nominees must say how
they're going to rule on certain hot-button cases or they're at all about
or their philosophies listen that's all about Obamacare this is all about
abortion or roe v-- wade and it's all about whether this justice this justice
nominee believes that the president can either be prosecuted or subpoenaed and
what-have-you these are not hot-button issues for the Democrats these are real
issues and when you take the gloves off and no Senate hearings if you look at
maybe the last five to ten that have been published or that we've seen you've
got non answers you've got questions that skirt the issue the Democrats
I think some Republicans are going to come out and say tell me what your
feelings or thoughts are on roe v-- wade when you went to the DC Circuit Cavan
justice Cavanaugh when he went to the DC Circuit he said he would follow a roe v
wade but that was a that was a mix because the problem that that is he was
going to the DC Circuit now he's going to be on a street forum' court why
shouldn't we be what I asked him his feelings on Rovio matter one Ruth Bader
Ginsburg got her confirmation hearing was very concerned about being asked
specific questions Chuck Schumer among many other Democrats when when we had a
Kagan up when we had Sotomayor up Democrat before he knew the place
okay just someplace shot and you're about to ship this court to the right
right I think you're wrong about that and a lot of conservatives are probably
not gonna be happy to hear this I think you guys ought to be really thinking
yourselves thank you thinking this president that he nominated someone like
Kevin who is who is he is to the right probably a little bit of Kennedy but the
idea that Brett Kavanaugh is going to like radically you know move to take the
first abortion case and overturn rose I don't see how undone violence and prior
opinions to all three of those areas the first thing but but here's the thing
when you use hysterics and what have you what about the justice crisis Network so
it's been ten million dollars to judicial million dollars thank you so
much and that's the best song why are the Democrats hysterical but the
justices network watching their flank that's why I made it makes sense maybe
you guys just want them to be you know unilateral disarmament yeah the left
wants Republicans to go into this confirmation fights all without offering
any defense of this candidate of this judicial nominee they have made this
about legislating from the bench because that's what they're that that's what
they want the court to do they want at the court to legislate new rights under
the Constitution that the framers never intended Richard Blumenthal I want to
share something with you saw that he said today I could not believe what I
was hearing in the snarly way that he said it let's watch judge Kavanagh
you don't belong in this building as a justice my colleagues should be a no on
this nominee unless judge Kavanaugh specifically commits that he will recuse
himself on any issues that involve president Trump's personal financial
dealings or this special counsel okay so explain that one for us please well
there's absolutely no basis for it there's no basis in ethics or history
for the concept that you can't rule on a case involving a president if he
happened to have appointed you now Rehnquist if you recall recused
himself from the Watergate tapes case but that's because he was a member of
the Nixon administration and a high official in the Justice Department but
it's just ridiculous and you're going to hear more of this kind of stuff and
you're right Laura really I've got no problem with people opposing a judicial
candidate because they oppose his constitutional philosophy or her
constitutional philosophy but the Democrats don't want to play that game
because then they would have to admit in public hearings that really they believe
the court should just enshrine their notion of progressivism
into the Constitution they really can't win an argument based on textualism and
originalism and so they have to come up with these phony issues and and that's
what you're gonna see and it's going to be very brutal and it's going to evolve
a lot of falsehoods and you know the Conservatives just have to Republicans
have to stay the course that's all else to it but so why shouldn't the Democrats
and the Republicans be even I asked about specific issues regarding his view
on roe v wade why shouldn't they be even asked about his views on immigration and
his prior cases that he's decided in the DC Circuit
that's not shenanigans that's doing real good cross-examination direct
examination to get a feel for what this next justice is going to be
that's not shenanigans at all that's real discussion to know what'll come
across Scott because Scott there's been a rule that's been followed for decades
that judicial candidates should not a pine on
something on a specific issue that may come before him or her and it's gone on
with both parties for at least the last 50 years and by the way I don't know a
lot of there's there's a lot of hypocrisy there's a lot of hypocrisy in
Washington but there's no area full of him more hypocrisy than judicial
selection as Laura pointed out when she quoted Schumer from judge Ginsburg
justice Ginsburg's nomination fight the party's totally changed positions
depending on whose ox is being gored about what you can ask now the fabulous
absolutely fair game it's absolutely fair game to get into questions of
judicial philosophy and you can find out a lot about a candidate when you do that
but it's not fair game to ask him how they're going to rule on what did judge
Cavanaugh say last night he said I will approach every case with an open mind an
independent view of the judiciary which i think is most people believe that's
what the court should be we don't want a court a Supreme Court that acts like
it's the super legislate legislature on these issues that Congress can't either
state state legislatures or the Congress can't get its act together on whether
it's immigration or any of these other social issues let those percolate up
through the states and be handled in due course you see after 45 years of Roe vs.
Wade the issue is not settled the country is still roiling over 50 million
babies being killed in the womb because of the sacrosanct right that was
emanating out of penumbra's in the Constitution that didn't work and I
think that's what the left wants to keep going didn't work I want to play one
more thing for you Scott though one more thing this was this was Feinstein on
Cavanaugh's view of the Second Amendment let's watch because the issue of gun
safety is so important to me I want to mention how extreme Cavanaugh's views
are in this area he argued in 2011 against Washington DC's ban because
weapons like AR 5th Dean's are in quote common use
Cavanaugh's views on the second amendment or straight out of the gun
lobby playbook again this is just this is the most why is the asshole way of
looking at case law do you know the case he's talking about the hello case yeah
okay do you know what Brett actually wrote in that case awareness my memory
but I've read the opinion several times okay he said our task is to apply the
Constitution we have the full screen and in precedence of the Supreme Court
regardless of whether the result is one we agree with as a matter of first
principles or policy that was the 2011 case following on from Heller he is
applying the Heller case he the fact that they're they don't like ar-15s
which are one of the most commonly owned guns in the United States long guns in
the United States that's fine California has rules against that but as a matter
of constitutional law Scott it's very different being than being a legislator
you conflate the issues no I think the branches of governor you I do too but
you conflate the issues in this regard if you're gonna be ruling on abortion
issues why should I not be able to ask you what are your professional feelings
or your thoughts on roe v wade what is your feelings don't matter as a judge
constitution matter okay his judicial philosophy so but already it's judicial
philosophy as well all I hear from those senators that they disagree with his
rulings why they disagree what his lower court rulings are writings of Ducks
that's all final word will he get confirmed yes or no do you think in the
end oh he'll definitely get confirmed but you know the real question about Roe
vs. Wade that he clearly can't be asked is I don't care what you thought about
Roe vs. Wade when it was decided in 1973 the question is whether or not it should
remain valid law if a case comes before the court and everyone would agree
that's just something you can't you can't ask somebody who's a judicial
nominee but I can't have to try to glean it from his writings right we got it we
can't prejudice future cases fantastic segment to both of you thank you so much
for thank you let's break this down with former law clerk to judge Cavanaugh and
also Justice Kennedy Justin Walker joins us that great to have you back with us
Justin thanks so much for having me all right so it's not just the abortion
issue I want to play a little bit more of what Minority Leader Nancy
Pelosi had to say today classes look some of the comments that justice
Kavanagh has made and others it is important to note that everything is at
risk roe v-- wade a woman's right to choose brown versus the Board of the
Education civil rights environmental issues gun safety the list goes on and
on all right so the positive there if you're supporting judge Cavanaugh she is
now referring to him as justice Cavanaugh but the downside there are all
of the things that are gonna go away including Brown v Board of Education
Justin oh my goodness you know I think it's important to put this mudslinging
in a little bit of perspective some of the very same groups that are
criticizing judge Cavanaugh right now they are out pro-choice America for
example criticized Ruth Bader Ginsburg when she was nominated to the court in
1993 they said she was insufficiently supportive of abortion rights number two
I think it's important to listen to people left right and center who were
open-minded and fair-minded about this just today President Obama's former
Solicitor General Don Verrilli called judge Cavanaugh a brilliant jurist and
the number three and finally I would point out for anyone who's wondering how
Judge Cavanaugh feels about precedents one of those presidents are Roe or any
other precedent just to read the book that he wrote along with twelve other
distinguished judges called the law of judicial precedents in which he says in
page after page and I'll tell you Shannon it's a thousand pages long he
says fidelity to precedent is important they should only be overturned in
extraordinary circumstances faithfulness to precedent encourages stability and
predictability and the rule of law yeah last time I looked around a thousand
page book it was law school and I don't think I'm gonna go back and read the
whole thing maybe some excerpts interesting though we've got a new Pew
poll out that talks about this idea of where people are with the Supreme Court
83% of people who responded said that they feel like it's the next person to
be chosen as either some what are very important to them they also said this
though about nominees being asked questions sixty-one percent of adults
overall said that if they're asked questions about hot-button issues like
issue like abortion they should have to answer those Justin what do you think
about that well that kind of answer by a just
judicial nominee would be somewhat unprecedented and I think many people
will consider to be unethical for a judge to prejudge a particular case or a
particular controversy until that judge has heard briefing from both sides and
argument and all those kinds of things so I expect that Judge Cavanaugh have
asked about specific cases will give the same response that Justice Ginsburg gave
Justice Breyer gave previous justices to the nominate and that is he can talk
about his approach to the law his general belief in the importance of
precedent his his desire to stick to the the text of a law and not impose his
personal ideology but I don't think it would be appropriate for him to say how
he would decide a certain case well there there's also a letter out today to
the Senate from more than 100 civil rights groups that have come together
and have said they are worried about his position on presidential power and
whether or not president should have to answer to criminal investigations while
they are in office they say that he lacks the requisite independence from
President Trump to serve as a much-needed check on his abuses of power
would he be an independent jurist judge Cavanaugh's 12-year record 300 opinions
demonstrate nothing but independence and fair-mindedness time and again he has
done what the law requires rather than imposing any kind of passion or
prejudice for a particular party and with response to that particular issue I
think it's important to look at what Judge Cavanaugh wrote he did not in any
way question the legality of an investigation very much like the kind of
investigation that Robert Moeller is conducting right now he wrote a law
review article about a legislative proposal but it was just that something
for Congress to consider not any kind of guidance about what courts should do and
those are two separate branches we should remind folks tonight all right
Justin Walker great to have you with us again
you
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