The Daily Signal - Ep. 287: What to Expect From the Kavanaugh Hearings

Episode Date: August 30, 2018

The Senate is gearing up for its most contentious fight of the year: hearings to confirm Brett Kavanaugh to the Supreme Court. Tom Jipping, a Heritage legal scholar and a veteran of past nomination battles, shares what we should expect Plus: The Justice Department takes sides in the legal fight between Harvard University and Asian-American applicants. We’ll discuss that. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Friday, August 31st. I'm Kate Trinco. And I'm Daniel Davis. The Senate is gearing up for its most contentious fight of the year, hearings to confirm Brett Kavanaugh to the Supreme Court. We'll sit down today with Tom Jipping, a heritage legal scholar and a veteran of past nomination battles. He'll share what we should expect as the hearings kick off next week. Plus, the Justice Department takes size in a legal fight between Harvard University and Asian American applicants. We'll discuss that. But first, we'll cover a few of the top headlines. The White House ethics lawyer, Stefan Passantino, will have his last day Friday, according to NBC News, which cites an anonymous White House official.

President Trump announced Wednesday in a tweet that White House counsel Don McGahn was leaving after Judge Kavanaugh was confirmed on the Supreme Court. On Thursday, President Trump also tweeted out against some of the narratives forming about McGahn's departure. He tweeted, quote, I am very excited. about the person who will be taking the place of Don McGahn as White House counsel. I like Don, but he was not responsible for me not firing Bob Mueller or Jeff Sessions, so much fake reporting and fake news. And the rigged Russia witch hunt did not come into play even a little bit with respect to my decision on Don McGahn. Well, President Trump announced on Thursday that civilian federal employees would not receive a pay increase next year,

reversing the 2.1% increase that was scheduled to go into a federal. in 2019. The president said this move is part of an effort to put our nation back on a fiscally sustainable course. The military will retain its 2.6% pay increase for 2019. If you're going on a road trip this Labor Day weekend, don't expect cheap gas prices. CNBC reports that gas will be about $2.85 a gallon or about 40 cents higher than it was in the same time period last year. One reason for the higher pricing could be the sanctions placed on Iran. Yeah, 2.85 sounds pretty good for D.C. I guess this average means we should expect like 3.30 or something. Yeah, or if you're going on into real America, a little bit lower, but yeah.

Yeah. Well, a California man has been charged with threatening to kill employees of the Boston Globe. Robert Chain of Encino, California, reportedly made 14 threatening calls to the Boston Globe in mid-August, saying in one of those calls, quote, you're the enemy of the people and we're going to kill every effing one of you, end quote. Andrew Lelling, the U.S. attorney for the District of Massachusetts, said in a statement, quote, in a time of increasing political polarization and amid the increasing incidence of mass shootings, members of the public must police their own political rhetoric, or we will. Last year, Education Secretary Betsy DeVos had some criticism for the current sexual assault procedures on college campuses. At the time, DeVos,

said, quote, the truth is that the system established by the prior administration has failed too many students. Survivors, victims of a lack of due process, and campus administrators have all told me that the current approach does a disservice to everyone involved. Now, the New York Times reports citing leaked documents, the Education Department is considering rules that would, per the Times, quote, narrow the definition of sexual harassment, holding schools accountable only for formal complaints filed through proper authorities and for conduct said to have occurred on their campuses. They would also establish a higher legal standard to determine whether schools improperly

address complaints. Well, we've heard a lot about Venezuela and its currency troubles, but now Argentina is having its own monetary crisis. The Argentine peso is down more than 45% this year, while inflation has grown by 25% stoking fears that the country could default on its debt. The country's Federal Reserve hiked interest rates to a staggering 60%. Argentine President Moriko McCree said, quote, I know that these tumultuous situations generate anxiety among many of you.

I understand this, and I want you to know that I am making all decisions necessary to protect you, end quote. citing an anonymous source CNN says Sarah Palin isn't invited to any of John McCain's services. Palin tweeted Saturday, Today we lost an American original. Senator John McCain was a maverick and a fighter, never afraid to stand for his beliefs. John never took the easy path in life. And through sacrifice and suffering,

he inspired others to serve something greater than self. John McCain was my friend. I will remember the good times. My family and I sent prayers for Cindy and the McCain family. Politico reported that three other high-ranking members of McCain's 2008 campaign were similar not invited. Steve Schmidt, Nicole Wallace, and John Weaver. Well, up next, we'll sit down with Tom Jipping to take a look at next week's Supreme Court hearings. Do conversations about the Supreme

Court leave you scratching your head? Then subscribe to SCOTUS 101, a podcast breaking down the cases, personalities, and gossip at the Supreme Court. Well, next Tuesday, the Senate kicks off confirmation hearings for Brett Kavanaugh, the man President Trump selected to fill the seat vacated by Supreme Court Justice Anthony Kennedy. Here's to take a look at the week ahead is Tom Jipping, Deputy Director of the Meese Center for Legal and Judicial Studies, and a senior legal fellow here at the Heritage Foundation. Tom, thanks for joining us again. Thank you for having me. So, John, what should we expect? I mean, you're a veteran of these confirmation fights. You worked in the Senate for a long time. What should we expect as these hearings get kicked off? Well, on the one hand, I think they'll follow a predictable schedule. It'll be a four-day hearing. Senators will give their opening statements.

day. Brett Kavanaugh will be before the committee for two days answering questions. And then the fourth day of the hearing, which will be Friday the 7th, will be witnesses for and against, as well as the American Bar Association testifying about the rating that they will give Judge Kavanaugh. So the schedule will be pretty familiar. The hearing is taking place a couple weeks longer from nomination than is typical. So senators have had about 25% more time to evaluate Kavanaugh's record. But beyond that, you know, the issues that are going to be raised, a lot of them are going to be particular to this nomination. A lot of them are going to be shaped by the president who nominated Kavanaugh. Democrats have a real visceral opposition to Donald Trump. And in many of the issues and

debates about Kavanaugh thus far have been as much about Donald Trump as they have about the nominee. So those kind of issues will shape the specifics of what's talked about during the week. What should people who are watching these hearings be looking for? What is something potentially significant that could occur during them? Well, I think think about it as there's a job opening and he's being considered for the job. You know, everybody who's been through a job interview. horrible. You know, that's really kind of what this is. And so how that interview goes really is dependent upon the job description of the position that's being filled. And I think what people will hear if they watch the hearing will be two very different job descriptions about what judges

are supposed to do. What is a Supreme Court justice's job? Republicans or conservatives have a very different view of that than liberals or Democrats do. And really everything that is said during the hearing statements, questions, answers will reflect one of those two very different views. And therefore, it can be a really educational opportunity. But that's really what's driving, I think, the hearing. The other thing is what I mentioned earlier, and that is pay attention for how much time is spent focusing on the nominee instead of the president that nominated him and on the nominee's qualifications instead of political issues. I don't think it helps educate the public much if you're not talking about the nominee and if you're not talking about the nominee's qualifications,

but an awful lot of time is going to be spent talking about other people and other things. Well, Judge Kavanaugh has an extensive paper trail from his time on the federal bench. Do you expect Democrats to pick up on a handful of hot-button issues? I think they will. It's interesting that during the confirmation hearing for Justice Sotomayor back in 2009, that was under a Democratic president, Chuck Schumer, who's now the Senate Minority leader, was a member of the Judiciary Committee at the time. And he really zeroed in on the fact that she was already a sitting judge and that the best way to evaluate her for the Supreme Court. Supreme Court was to look at her decisions as a court of appeals judge. Now, Brett Kavanaugh has been a court of appeals judge, even longer than so to my or was, but don't expect Democrats to apply

the same standard to him. I think they're going to avoid talking about his record on the bench as much as possible and talk about other political issues, talk about Donald Trump, talk about the process, the confirmation process, but they're not going to want to talk about very much of his decisions on the bench. If they do, there's a few decisions that I'm sure they'll single out. Remember that he wrote 307 opinions and he joined almost 400 others. So there are 700 opinions in which he participated to talk about. And I'll bet you could count on one hand the number of those cases that Democrats are going to be willing to discuss.

So they're not going to care about the actual facts. that seems prior for the course. You know, as Daniel mentioned, you had a long familiarity with these type of cases or these kinds of hearings. Do you think in any of the past, I have to admit, I'm not very familiar with Bork or Clarence Thomas, do you think there could be any surprises that occur during the course of the hearings or have we sort of past that window? Well, if I were 100% accurate at predicting everything, I would probably be in a different

line of work. But I think we're about 30 years into the transformed confirmation process since Judge Bork was defeated in 1987, where it's really completely transformed, where it's a much more politicized, much more aggressive tactics are being used. There's much less consensus about the ground rules. And frankly, the administrations have become more familiar with. that. They're better prepared to deal with it. I'd be surprised if some sort of, you know, earth-shaking revelation came out at the same time. Some of the left-wing groups that really oppose nominees in judges like Judge Kavanaugh will stop at practically nothing to try to defeat them. But we know a lot more today than they knew 30 years ago about how to deal with that,

how to prepare for it. And Judge Kavanaugh himself has been a student of this process. When he worked in the George W. Bush administration and the White House Counsel's Office, helping judicial nominees go through the confirmation process was part of his job. And that is going to be very valuable knowledge and experience when it comes to his own trip through this. This isn't the first time he's been through a difficult confirmation. He was appointed to the Court of Appeals in 2006 and actually had two hearings before the Judiciary Committee himself. So all of that's good to draw from. Exhaustive preparation. He's a brilliant thinker and speaker. So I think everybody will be prepared for a grueling week, but I think people will be able to see what a good nominee he is.

And when do you expect that final vote to take place? Will it be the following week? Well, the way the schedule typically works, so the hearing will be the fourth through the seventh, Tuesday through Friday. The Judiciary Committee meeting at which his nomination will come up for a vote will be the following week, probably on Thursday the 13th. Under committee rules, a senator can ask that it be held over an additional week, which Democrats will probably do. So you'll probably see it reported out of the Judiciary Committee somewhere around the 20th to the Senate floor. And then it's up to the majority leader, how he structures the debate and when the final vote will be. Democrats aren't going to cooperate in that, which is typically how it's been done in the past. So Senator McConnell

has certain rules that he can use to kind of set up that schedule. for how it's going to be handled on the floor. And I think it's very likely that he'll be confirmed by the end of, I guess that would be by the 29th at the end of that end of September. Okay. Are there any particular senators you think people should be watching or either on or off the judiciary committee or do you expect this is going to be a straight party line vote?

Well, I think from the beginning, there's been a group of about five or six, senators, two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, and a few Democrats, people like Joe Manchin of West Virginia, Joe Donnelly of Indiana, perhaps Heidi Height Camp of North Dakota, who are somewhat more moderate Democrats. That group, that's really small group has been the only ones that, you know, anybody's talked about as being up in the air, so to speak. I thought all along that I think that group will either all oppose. are all support because the same kinds of standards and criteria and arguments that appeal to

those two Republicans are probably going to appeal to those three Democrats. At this point, I expect they will vote for Judge Kavanaugh and that he will be confirmed with at least a few Democratic votes. Well, an interesting wrinkle in all of this was the passing of Senator McCain. we expect Arizona governor Ducey to appoint a successor to that seat after the funeral this weekend. So it's sort of an interesting timing. I guess the Arizona senator would hit the ground running and presumably be here for that final vote. It looks like that that would happen. In fact, if that senator is appointed right away, he or she would be in Washington for at least part of the,

hearing itself. And I'm sure there will be federal Republican senators, especially those on the Judiciary Committee, who will be willing to spend whatever time is necessary talking to that new senator to bring them up to speed on the issues and information so that they'll, by the time, that senator won't be on the judiciary committee. So they will have to cast a vote at the end of the process, but that'll be a few weeks after they come to Washington. And that's definitely enough time to to get up to speed and make an informed decision. Okay, well, thanks so much for joining us today, Tom. And, of course, we'll be featuring Tom's analysis all next week on The Daily Signal.

Thanks for having me. I'm Rob Lewy, editor-in-chief of The Daily Signal. And I'm Ginny Malta Bono. Each weekday, the Daily Signal delivers the Morning Bell email direct to your inbox. We created the Morning Bell to be your one-stop source for credible news reporting and insightful commentary on the issues that are shaping the agenda. You can subscribe today and get it delivered to your inbox, weekday morning. Sign up now at daily signal.com. Just click on the connect button at the top of the page

and subscribe today. Is it harder for Asian Americans to get into Harvard than Americans with other racial backgrounds? That's the argument from one group currently suing Harvard. Now the Justice Department has weighed in writing in a filing per the journal that the vague and illusory personal rating may be infected with racial bias against Asian Americans. end quote. Harvard reportedly considers, in addition to academics, factors like extracurricular activities, athletics, and this personal rating. Yet the lawsuit against Harvard alleges, according to a June New York Times report, that Asian Americans are discriminated against on the personal rating. And that's presumably why they're not getting into Harvard. So Daniel, what do you think about this?

Yeah, I think what makes this case so important, what makes the claim being made by this Asian American group, so. so strong is that this is a claim of discrimination based upon race, a protected status in the law. Race is an immutable trait. It's not an identity that you choose. It's not something that you can ever change. And so it makes sense that that factor should not be a factor in your eligibility for something like college admissions. And I think it is important to separate, to make a distinction there because there are other cases where groups will exclude people based on certain factors like, you know, religion and, you know, you can't join our church because you're not, you know, you don't subscribe to our beliefs, or you can't join our student group because you don't subscribe

to our beliefs. And that's a freedom of association question that's based on belief and chosen identity. But race is something that you do not choose. And so really makes sense to protect that. Right. And I think that's interesting in a way. I mean, this is obviously getting news attention right now, because the Justice Department weighed in. But overall, I think one, we don't hear as many race stories in American media about Asian Americans as some of the other groups, which I think is interesting. And I also think I don't think this problem is new. I was reading about this, and I believe Princeton has a similar problem.

I think other colleges do as well. I grew up in an Asian American neighborhood and went to public school in elementary when I had a lot of Asian classmates. and, you know, a lot of the stereotypes were true. They studied really hard. They were often incredibly smart, and, yeah, they really worked, more so than, you know, maybe on a percentage level, than Caucasian students or some of the others.

So I could certainly see that, you know, maybe there would be more qualified applicants. And I also think that, like, I don't actually know what factors my college considered. I don't know how common or uncommon approach. personality rating is, but it strikes me as kind of a weird thing to add to the mix. I mean, I don't know. It just sort of makes me uncomfortable generally. I mean, Harvard's private. They can choose to have that, even if, you know, their application can't be based on race. But I don't know.

I think, and it also gets to me, like, you know, there's a broader problem here in that, you know, so many influential people come through the Ivy. And yet the ivies don't accept so many smart people. And so you can see how, if they were showing racial bias, this could really echo through our society. I believe the entire Supreme Court attended in either law school or undergrad in Ivy League. Just give one example. So you could see the long-term detriment. But I think the real answer is hopefully that there can be more push on, I don't know, on influential.

hireers, employers, to try to expand their pool. Like, we shouldn't let, you know, these seven colleges have so much dominance over certain areas. Yeah, that was actually the point I was going to make is that, you know, Harvard is known to be what it is. It is known as the premier university in America. But when you start accepting people not based on academic standards alone and have these other racial factors involved, then you're sort of surrendering that standard. and you're sort of going on legacy and name instead of keeping that same rigorous standard. So you would think Harvard would want to keep that, but maybe this is the case where political correctness has superseded academic standards.

Right. And then also, I mean, the stupid stuff like extracurriculars and athletics. And I think, I mean, it was, I don't know, maybe it was the same for you, but I had friends, or at least one friend who was trying to get into a really high-ranking school. and her life in high school was just like hell. It was just activity after activity and like you had to volunteer. I mean, volunteering is great. But like I do think like it has gotten to a point where it is just almost stupid. How many extracurriculars and sports and like volunteer work you're supposed to do in high school to be considered well-rounded.

And in general, I would just love to overhaul the whole college admissions program in most colleges. It doesn't seem like it's designed to encourage genius or genuine excellence in one area. It seems like it's just a rat race that is not helpful long term for anyone. Yeah, and it's sort of a project that conforms identity politics, frankly. Yeah, and it also shuts out another issue that the IVs face is their lack of economic diversity. And, you know, a big part of that is if you actually have to work in high school, perhaps to save money for college, perhaps to, you know, because your family isn't going to be giving you an allowance, or maybe you're even helping your family. You're not going to have the time or money to do

unpaid internships, to do all these extra things. You know, you've got to go to Flip Burger's after school. You can't be going to this stupid lacrosse club or whatever. So, I mean, I, yeah, I'm excited for this case, but I also hope it involves greater soul searching, shall we say. Yeah, it's interesting how some universities, and basically, let's just say the left, defines diversity so narrowly. Right. They define it in terms of race and maybe sexual preference or identity, that sort of thing, one of your 72 genders or something. Only 67. Sorry, I met up on the latest.

But not other factors like economic diversity, like you said, or ideological diversity. Oh, right. Your opinion, that sort of thing. And we saw that yesterday, in our podcast yesterday with Facebook having some Facebook employees upset. Well, actually, that raises interesting questions. I wonder it'd be so hard to prove this. But I could easily see Harvard giving you a bad personality score if you were a conservative. Yeah.

Well, that's very unopened minded. Well, we'll leave it right there for today. Thanks so much for listening to The Daily Signal podcast. Brought to you from the Robert H. Brews Radio Studio at the Heritage Foundation. Please be sure to subscribe on iTunes, Google Play, or SoundCloud. And please leave us a review or rating on iTunes. tunes to give us any feedback. Rob and Jen, we'll see you on Tuesday. You've been listening to the Daily Signal podcast, executive produced by Kate Trinko and Daniel Davis, sound design by Michael

Gooden, Lauren Evans, and Thalia Rampersad. For more information, visitdailysignal.com.