The Daily Signal - Ep. 290: How the Kavanaugh Hearings Are Going

Episode Date: September 5, 2018

Wednesday was Day 2 of Brett Kavanaugh’s confirmation hearing for the Supreme Court. Senators probed him on a range of hot-button issues, including Roe vs. Wade. Heritage legal fellow Elizabeth Slattery joins us to discuss how the hearing is going. Plus: The woman sitting behind Kavanaugh gets accused of white supremacy. 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 Thursday, September 6th. I'm Kate Trinco. And I'm Daniel Davis. Wednesday was day two of Brett Kavanaugh's confirmation hearing for the Supreme Court. Senators probed him on a range of hot-button issues, not least of which was Roe versus Wade. We'll sit down with Heritage Legal Fellow Elizabeth Slattery to discuss some key moments. Plus, the woman sitting directly behind Kavanaugh got accused of white supremacy. Apparently, she wasn't sitting correctly.

We'll unpack what happened. But first we'll cover a few of the top headlines. Well, the president has long made known his concerns about internet censorship. Now the Justice Department is looking to make some moves on the issue. Attorney General Jeff Sessions has scheduled a meeting with State Attorneys General later this month to discuss a growing concern that tech companies, like Twitter and Facebook, may be siphling the free flow of ideas. Those two companies have denied ever censoring speech, though many conservative outlets, outright disagree.

And so, too, I'm sure, some liberal outlets. Well, President Trump reacted Wednesday to veteran journalist Bob Woodward's forthcoming book, Fear, about his administration. Here's what he had to say. A book, you mean on the book? The book means nothing. It's a work of fiction. Already, General Mattis has come out very, very strongly.

And I think you know General Mattis. He does what he wants to do. He's a very independent guy. He was insulted by the remarks that were. attributed to him and he came out with a very strong statement. I assume you read it. I hope you read it last night. General John Kelly, the same exact thing. He thought he was insulted by what they said. He's right here. He's insulted by he couldn't believe what they said. And he put out a very, very strong statement. And as you just heard there, White House Chief of Staff John Kelly denied the

allegations against him in Woodward's book. The book quotes him through anonymous sources as having called the president an idiot. Kelly flat out denied that, say, quote, the idea I ever call the president an idiot is not true. He went on to call the book, quote, another pathetic attempt to smear people close to President Trump and distract from the administration's many successes. Woodward's book is hardly the first to be the topic of heated debate, particularly around alleged juicy quotes. However, according to Axios, Woodward might have tapes. Axios reported, quote, Woodward based the book on hundreds of hours. of tapes of his interviews with current and former West Wing aides and other top administration officials.

End quote. That means even if Woodward doesn't have the quotes themselves on tape as they were originally said, he could presumably share what person actually said so-and-so said it, although it would violate journalistic norms to divulge that. Well, Senator Ben Sasse lit Twitter aflame on Tuesday with a monologue he delivered during Brett Kavanaugh's confirmation hearing. During that monologue, he criticized Congress for relying on the Supreme Court to make tough decisions for the country. He said this heavy reliance on the judicial branch has skewed the separation of powers intended by the founders and caused us to see judges in partisan terms rather than whether they can simply be faithful to the law. Here's a brief taste.

This is the elegant and the fair process that the founders created. It's the process where the people who are elected, two and six years in this institution, four years in the executive branch can be fired because the justices and the judges, the men and women who serve America's people by wearing black robes, they're insulated from politics. This is why we talk about an independent judiciary. This is why they wear robes. This is why we shouldn't talk about Republican and Democratic judges and justices. This is why we say justice is blind. This is why we give judges lifetime tenure.

And this is why this is the last job interview Brett Kavanaugh will ever have. because he's going to a job where he's not supposed to be a super legislator. So the question before us today is not what does Brett Kavanaugh think 11 years ago on some policy matter. The question before us is whether or not he has the temperament and the character to take his policy views and his political preferences and put him in a box marked irrelevant and set it aside every morning when he puts on the black robe. The question is, does he have the character and temperament to do that? If you don't think he does, vote no. But if you think he does, stop the charades.

I think Sash should start a movement for senators to wear robes. But anyway, that was probably not the most important takeaway. On Wednesday, there were two social media hearings on the Hill. Testifying during the House hearing, Twitter CEO, Jack Dorsey, argued that his company would not take sides in politics. I want to start by making something very clear. We don't consider political viewpoints, perspectives, or parties. or party affiliation in any of our policies or enforcement decisions. Period.

Impartiality is our guiding principle. Let me explain why. We believe many people use Twitter as a digital public square to gather from all around the world to see what's happening and have a conversation about what they see. Twitter cannot rightly serve as a public square if it's constructed around the personal opinions of its makers. We believe a key driver of a thriving public square

is the fundamental human right of freedom of opinion and expression. Our early and strong defense of open and free exchange has enabled Twitter to be the platform for activists, marginalized communities, whistleblowers, journalists, governments, and the most influential people around the world. Chief Operating Officer, Cheryl Sandberg, testified in a Senate hearing focused on the security threats that Facebook presents. We also know, as Chairman Burr said, that we cannot stop interference by ourselves.

We're working with outside experts, industry, partners, and governments, including law enforcement, to share information about threats and prevent abuse. We're getting better at finding and stopping our opponents, from financially motivated troll farms to sophisticated military intelligence operations. We don't have access to the intelligence government have access to. So we don't always know exactly who is behind these attacks or their motives. And that's why we will continue working closely with law enforcement. Well, Bernie Sanders is declaring war on Amazon.

The Vermont Senator introduced a bill on Wednesday called the Stop Bezos Act, which is an acronym for Stop Bad Employers by zeroing out subsidies. The bill seeks to force large employers to raise wages by imposing 100% welfare tax on them equal to the amount that their workers receive in public assistance benefits. The bill comes after a brief war of words unleashed last week between Sanders and Amazon's CEO, Jeff Bezos. Sanders ripped Bezos for making $250 million a day while his workers go on public assistance. Amazon said Sanders' claims were inaccurate and misleading. British Prime Minister Theresa May has said,

confirmed that two men alleged to be behind the poisoning with a nerve agent of a former Russian spy living in the UK are themselves Russian agents. Quote, based on a body of intelligence, the government has concluded that the two individuals named by police are officers from the Russian military intelligence service, also known as the GRU, May said. She also said that, quote, this was not a rogue operation, and it was almost certainly also approved outside of the U. the GRU at a senior level of the Russian state. Well, up next we'll talk to Elizabeth Slattery about day two of Kavanaugh's confirmation hearing. Did you know you can now listen to all of our events through SoundCloud or just by visiting our events page on heritage.org? You now have access to hundreds of events and compelling discussions on policy issues from your car, on the train, or the comfort of your own home. Visit heritage.org slash events for more

information or search for the Heritage Foundation on SoundCloud. Well, we've had day two of Brett Kavanaugh's Senate confirmation hearing, which, by the way, you can watch live on the Daily Signals, Facebook Live. Be sure to check that out. Here now in studio to discuss some key moments from day two is Elizabeth Slattery, a legal fellow here at the Heritage Foundation and host of the great podcast, SCOTUS 101. Thanks for joining us. Thanks for having me, Ann, for plugging the podcast. Of course, of course. So we were on day two of the hearing. How's the hearing going at this point? Well, it's a lot smoother than the first day, which, of course, there were a lot of interruptions by protesters and also from Democrats on the committee who were insisting that they needed more time to review

the additional documents that had been released to the committee over the weekend. So day two was Kavanaugh's first time up with just hearing questions from the senators and they're trying to probe his mind and learn about his judicial philosophy. Okay. Well, Elizabeth Kavanaugh also spoke Wednesday about presidential power and its limits. You're correct. No one is above the law in our constitutional system. Federalist 69 Hamilton makes clear all the ways that the executive branch has designed by the framers of the Constitution was different from the monarchy. under our system of government, the executive branch is subject to the law, subject to the court system.

And that's an important part of Federalist 69. It's an important part of the constitutional structure. Do you think this answer will have any influence on those who are afraid that Kavanaugh will in this alternate universe let Trump become a dictator or whatever? Single-handedly ruling the court, you know. I'm not sure that his answers to any questions from the Democrats are going to satisfy them, even though I think he has come across as an incredibly reasonable, impartial, and fair individual. I don't think that's how they see it. But, of course, this comment comes up in the context of questions about, you know, President Trump pardoning himself, not being subject to investigation and all sorts of things. And of course, Kavanaugh says no one is above the law.

And that's right. Well, one of the most central issues to come up in these hearings is Roe v. Wade, and we saw that come up with Senator Dianne Feinstein of California, who made this an issue in past hearings. Here's a brief clip of Kavanaugh responding to her and addressing Roe v. Wade. Senator, I said that it's settled as a precedent of the Supreme Court entitled to respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been, reaffirmed many times over the past 45 years, as you know. And most prominently, most importantly, reaffirmed in Planned Parenthood versus Casey in 1992. So Elizabeth, what do you make of this response on Roe v. Wade? Sure. So there were news reports after Kavanaugh had made the rounds

meeting with a number of senators. And Susan Collins came out and said, Kavanaugh has assured me that he believes Roe v. Wade is settled law. And of course, it's settled law. It's a precedent of the Supreme Court, and this is a line that many past Supreme Court justices have taken. It wouldn't be appropriate for them to comment on whether he thinks it was rightly decided or wrongly decided or if in an appropriate case he would vote to uphold it or overturn it, because that would cut against his independence and his impartiality.

And those are some of the most important aspects of a judge. So admitting its subtle law doesn't really mean. He's taking a position on it or doesn't mean he's endorsing it as correct law, basically. Right. It means it's a precedent. It exists on the books right now. He's currently a lower court judge, so he's bound to follow the precedence of the Supreme Court. If he is in some alternate universe not confirmed, which I think he will be, he'll have to go back to the D.C.

Circuit and continue to follow precedents whether or not he agrees with them. Now, you're a veteran, I think. That's fair to say. Supreme Court Watcher. Has anything in these confirmation hearings surprised you? I mean, it seems to me the things seem to have gone pretty smoothly so far. Well, the first day, I was expecting some antics and theatrics from the left. I thought the Democrats might walk out and try to deny a quorum or something like that, which they didn't do.

So I thought their behavior was a little rude, but ultimately Grassley was able to pull things back together and continue with the hearing. and it's gone much more smoothly since then. Yeah, I mean, I'm kind of surprised that periodically it's like they plant people in the audience and then one of them will go off and then five minutes later, another one will go off. Yeah. It's like the little time bombs going off everywhere. It just strikes me as this kind of Olinskyite tactic where you're just creating chaos and trying to disrupt.

But as you say, the senators are pressing forward and keeping control of the hearing. What should we look for in the days ahead this week? I mean, do you expect this to be wrapped up by the end of the week and a vote following week? I think it will be wrapped up by the end of the week. Kavanaugh will have another full day, potentially full day of questions from the senators. And then there are panels with witnesses from the American Bar Association and then outside witnesses who have been invited by both the majority and the minority in the Senate. I think a vote will probably not happen for two weeks, as is the custom with the committee.

They will have the opportunities to submit questions to Kavanaugh over the weekend, and then he'll have to return his answers by early next week, and then they'll have an executive session where they'll discuss the nomination. But the typical practices that the committee will hold it over for another week. So I think we're still on track for a Justice Kavanaugh to be in place by October 1st when the court comes back in session. And do you think that it's possible Democrats will try to do any more hold-ups related to? I know you've already spoken about the, what is it, 43,000 pages of documents from his White House time? You know, I don't think there will be any holdups. Grassley is pressing forward, and they seem to have realized that the, you know, fighting about the documents, which they don't need to read because they already announced they were going to oppose Kavanaugh within minutes of his announcement, his nomination over the summer. So, no, I don't think there will be any more significant holdups.

Right. And these documents, to be clear, Kavanaugh didn't hold like a policy position in the White House or just documents he dealt with on just basic things, not revealing of his mindset as my understanding. Right. The most important thing, the most relevant part of his record is his 307 judicial opinions. And that seems to be the part of the record that the Democrats don't want to talk about. They want to talk about documents that he literally touched and passed on when he was the staff secretary when he, you know, acted as basically a traffic cop for president. Bush, those are the documents that they want, even though they didn't demand similar sort of documents from Elena Kagan when she was the Solicitor General for President Obama. You know, the standard is a little uneven. Well, we're going to be, well, keeping our eyes on those handful of swing votes as Kavanaugh gets up for a vote. I am just amazed that the president has gotten two selections for the Supreme Court in his first two years of office.

I mean, Obama got two, right, in eight years? And that was it. Yeah. So really remarkable. Well, Elizabeth, thank you for coming on and unpacking some of the issues. And thanks for joining us. Thanks for having me. So a former law clerk of Brett Kavanaugh, Zina Bash, was caught on camera Tuesday,

making what some on Twitter called a white power symbol. Now Bash's husband, John Bash, a U.S. attorney in Texas, tweeted, the attacks today on my wife are repulsive. Everyone tweeting this vicious conspiracy theory should be ashamed of them. We weren't even familiar with the hateful symbol being attributed to her for the random way she rested her hand during a long hearing. Zena is Mexican on her mother's side and Jewish on her father's side. She was born in Mexico. Her grandparents were Holocaust survivors.

We, of course, have nothing to do with hate groups, which aim to terrorize and demean other people. Never have and never would. Daniel, thoughts. I mean, I think it just highlights. the paranoia on the left that they you know someone would look past cavanaugh and see a woman you know resting her hand on her elbow in that particular way first of all that they would actually know the symbol themselves which is a little weird like why would you know that without researching it yourself and and you know doing that um but yeah i just thought it was very

very paranoid and it shows i think the ability that human beings that we have to project the worst on the other people when they and to have no to completely judge them by their cover. I mean, they were judging her because she was sitting behind Kavanaugh and on his side, basically. She was an associate of his. And somehow that gives probable cause that, you know, she's, she's a white supremacist, absolutely insane, especially knowing her background. Well, yeah, I imagine they didn't know her background. But yeah, I think you're absolutely right that it speaks to, you know, the insane mindset on the left that there's all these conspiracy theories at the right. And, you know, it's kind of funny. You know, most of my career has been spent between National Review and now

the Daily Signal to Heritage Foundation at right-wing places. And yet, despite being privy to all these conversations, I've never, like, you know, the stuff that the leftists think we're saying the Angloat stores. It's like everything you think we're saying, people are basically saying on the record out loud all the time. So chill out. I think this also gets it to how you, easy it is to smear someone's character without them even having a chance to defend themselves and to explain that it's completely baseless. You know, it's, there's no, there's no back, there's no, you know, that they're proved wrong now, you know, people who look into it can see that they were wrong. But there's no, there's no consequence for them when, after smearing someone

like this. Well, I think, you know, they should at the very least be like ostracized and, you know, made to be incredible. I think a few, months back, there was a case with the New Yorker fact checker who may have had to quit over that. It was a little bit unclear why she left the New Yorker. But she tweeted a photo of, I think it was an ICE agent, and said he had some

offensive tattoo, and then of course it was shown that that was not an offensive tattoo. I think it related to a military service. He turned out to be a veteran who was disabled. Right. Like it was some egregious thing, and the story had just spread like wildfire. But I think it's important to note, you know,

her husband, John Bash's reply has also been liked and tweeted a gazillion times. And I think in some ways, this is an example of why censorship is not the answer. You know, like he responded extremely forcefully. That has been gotten out as well very effectively to a lot of people. And so I'd almost rather someone be saying wrong things on Twitter in public where someone can fight back than whispering it in a different channel where you don't know and you can't say anything. Yeah, that's true. true as long as people are allowed to argue their point of view, the truth has a chance to rise to the top.

Right. But anyway, I understand Zena Bash is back at the hearings, or was Wednesday. And so I commend her for being willing to deal with this Twitter drama again. And, yeah, hopefully people stop looking for hidden symbols. I think maybe, yeah, there's just so much fear of like, oh, Kavanaugh's not saying what he really thinks and all this stuff. And I don't know. It's bizarre.

Well, it'll be over soon, hopefully. But we're going to leave it there for today. Thanks so much for listening to The Daily Signal Podcast, brought to you from the Robert H. Bruce Radio Studio at the Heritage Foundation. Please be sure to subscribe on iTunes, Google Play, or SoundCloud, and please leave us a review or a rating on iTunes to give us any feedback. We'll see you again tomorrow. 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 the Learampersad. For more information, visit DailySignal.com.