The Daily - Trump Picks Brett Kavanaugh

Episode Date: July 10, 2018

President Trump has nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court. Given Judge Kavanaugh’s conservative record and the political math in the Senate, what happens now? Guests: Adam Liptak, who covers the Supreme Court for The New York Times, discusses the announcement; Carl Hulse, the chief Washington correspondent for The Times, assesses Judge Kavanaugh’s prospects for confirmation. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, President Trump has picked Brett Kavanaugh for the Supreme Court. What happens now, given his record and the math in the Senate? It's Tuesday, July 10th. in the Senate. It's Tuesday, July 10th.

My fellow Americans, tonight I speak to you from the East Room of the White House regarding one of the most profound responsibility of the White House regarding one of the most profound responsibility of the president of the United States, and that is the selection of a Supreme Court justice. Adam Liptak, what happens at 9 p.m.? Donald Trump strides out by himself to keep the suspense up. I've often heard that other than matters of war and peace,

this is the most important decision a president will make. Make some introductory remarks about his first nominee, Justice Neil Gorsuch, about Antonin Scalia, whose widow was there, about Ronald Reagan. Both Justice Kennedy and Justice Scalia were appointed by a president who understood that the best defense of our liberty and a judicial branch immune from political prejudice

were judges that apply the Constitution as written. That president happened to be Ronald Reagan. For this evening's announcement, we are joined by Ronald Reagan's Attorney General, Edwin Meese. Ed Meese is there, and that's significant because Ed Meese represents the beginning of a 30-year long project for the conservative legal movement, which has really devoted a lot of attention to creating and grooming candidates for the bench, and much more so than Democrats. Republicans have really been focused on the courts, on the Supreme Court in particular, and this fifth hardcore conservative seat, which Judge Kavanaugh will take if he's confirmed, will represent the culmination of that 30-year project of putting on the courts reliable conservatives who will interpret the Constitution as it was originally understood, who will read statutes narrowly, and as a consequence, in most cases, will move the court to the right.

And as a consequence, in most cases, we'll move the court to the right. Annette, I speak for everyone. Thank you for everything you've done to protect our nation's great legal heritage. And then, you know, beauty contest style, he brings out the winner. Tonight, it is my honor and privilege to announce that I will nominate Judge Brett Kavanaugh to the United States Supreme Court. Judge Kavanaugh and his wife and two daughters. I know the people in this room very well. They do not stand and give applause like that very often, so they have some respect.

President Trump gives the usual introduction that he's found the best, brightest candidate in the land. Judge Kavanaugh has impeccable credentials, unsurpassed qualifications, and a proven commitment to equal justice under the law. A graduate of Yale College and Yale Law School, Judge Kavanaugh currently teaches at Harvard, Yale, and Georgetown. And then, Judge, the podium is yours. Judge Kavanaugh gives a very nicely modulated and restrained set of remarks and says that really when people talk about Judge Kavanaugh, he always thinks they're talking about his mother, a state court judge in Maryland. My introduction to law came at our dinner table when she practiced her closing arguments. Her trademark line was, use your common sense.

What rings true, what rings false. That's good advice for a juror and for a son. It seemed, Adam, like Judge Kavanaugh spent more time in his speech talking about his two daughters and their sports teams than almost anything else. What did you make of that? I have two spirited daughters, Margaret and Liza. Margaret loves sports, and she loves to read. Liza loves sports, and she loves to read. Liza loves sports and she loves to talk. I have tried to create bonds with my daughters

like my dad created with me. That he's a doting father. For the past seven years, I have coached my daughter's basketball teams. That he's a doting father. The girls on the team call me Coach K. I am proud of our Blessed Sacrament team that just won the city championship. And it gives you a portrait of a fully rounded person who's not only a legal wonk, which he is, but he's also a dad. He's active in his community. As a judge, I hire four law clerks each year. I look for the best. My law clerks come from diverse backgrounds and points of view. I am proud that a majority of my law clerks have been women.

Is it, Adam, at all a stretch to wonder whether mentioning that might have something to do with the fact that two Republican women may decide whether he ever becomes a Supreme Court justice, Senators Murkowski and Collins? I think it is a stretch. It's possible, but I didn't read it that way, and I wouldn't, in this kind of speech, in this kind of moment, impute to him that kind of political calculation, but maybe I'm naive. The framers established that the Constitution is designed to secure the blessings of liberty.

secure the blessings of liberty. Justice Kennedy devoted his career to securing liberty. I am deeply honored to be nominated to fill his seat on the Supreme Court. So yesterday, Adam, you told us that Kavanaugh is seen as both a slightly less conservative pick than the others that Trump was looking at, and also a potentially more challenging pick to get confirmed because he has such an extensive paper trail. So why do you think that President Trump ultimately selected him? Because I think President Trump means it when he says, I want the best. And among those four very strong candidates, he was, by most calculations, the best. He had the fanciest credentials.

He had the most robust resume before he went on the bench. His judicial opinions were, many people would say, I would say, the most sophisticated. And so if you want the best, he was the right choice. And yes, he's got a longer paper trail than others, and it may take longer to sort through. And it may even mean that he's not on the Supreme Court on the first Monday in October when the new term begins. But who cares? He's going to be, if confirmed, on the Supreme Court for 30 years.

And if you have to withdraw a month or two from that, so be it. I noticed from a quick Google search that Judge Kavanaugh co-authored a book, actually with Justice Neil Gorsuch, that had a seemingly significant title. The title of the book is— The Law of Judicial Precedence? You know it well. The Law of Judicial Precedence. What does that tell us, that he co-authored that book?

That's a book that lexicographer Brian Garner put together and collected up really, I don't know, a dozen, 15, 20 of the leading appellate judges around the country whose writing he admired. And they collectively, and you can't tell who wrote what in the book, so it's a little frustrating to people like me, They collectively tried to write about ways to think about precedent. And it's a fascinating subject, but it also illuminates the subject from so many different sides because you don't know who wrote what part. And because there are a lot of different ways to look at precedent, it's a good book, it's an interesting book, but it doesn't tell us very much about Kavanaugh.

But we do know that precedent is going to be a huge topic going into these nominations, and that Judge Kavanaugh has thought a lot about the idea of precedent. That's right. And of course, the central issue for so many people is Roe v. Wade, and its precedential value, its force, whether you have to adhere to that precedent, will be something he's questioned about at the hearings. And we're not going to get a straight answer out of him. But the fact that he's given a lot of thought to precedent may at least give senators an entry point into trying to pin him down on how he views which precedents are worthy of respect and which can be overturned. Well, with that in mind, Adam, has Judge Kavanaugh been involved in any cases that

touch on Roe v. Wade and also on the issue of precedent? Yeah, there was a very interesting case last year, Garza v. Hargan, about a migrant teen pregnant in immigration detention custody who wanted to have an abortion. She was 17 years old. And Judge Kavanaugh's court, the D.C. Circuit, said, yes, she was entitled to have an abortion, and indeed she did have an abortion shortly thereafter. Judge Kavanaugh dissented, and he took a kind of middle ground. He said the government should first be allowed to find a sponsor, a sort of foster parent for her, someone she can discuss this with. And in the course of writing that decision, he must have, I didn't count it, but he must have a dozen times said, for purposes of this opinion, I'm going to accept that established Supreme Court precedent allows her to have an abortion.

And every time he writes a sentence in which that concept came up, he repeated the phrase established Supreme Court precedent, I think because he didn't want to be quoted out of context to be suggesting that he's taken a view on this thing, but only rather than as an appeals court judge, you have to apply Supreme Court precedent. But the fact that he took such pains to use the phrase makes me think that sitting on a different court, he might be prepared to have a different view. So he's sort of intentionally saying this woman has a right to an abortion, but that's because the Supreme Court precedent says so, not because of any views I hold. That's right. That's how I read it exactly.

So how does that dissenting opinion encapsulate Judge Kavanaugh's judicial philosophy in your mind? So I'm not sure it tells you very much about his judicial philosophy. I think it tells you something about his tactical strategic brilliance, because he by now knows that he's on a short list for the Supreme Court, and he can't really take either position. Political scientists have a term for this kind of judicial behavior. They call it auditioning. And it's a delicate business. And the fact that he did it brilliantly is some indication. This is not necessarily the highest of praise, but he's a good lawyer. Lawyers know how to argue themselves out of tight spots, and he did. Yesterday, you told us that you didn't think that this Supreme Court was

looking to overturn Roe v. Wade just yet, that instead we might see the court chipping away at abortion rights at the state level. Is what you're describing that Judge Kavanaugh did in that dissenting opinion in any way at odds with that understanding? No, I think all Kavanaugh did was reserve judgment on the question, and I continue to think that it's not on anyone's immediate short-term agenda to overturn Roe, but it might be on a lot of people's short and medium-term agenda to sustain state abortion restrictions and make it harder for women in much of the country to get abortions. Thank you, Adam. Thank you, Michael.

Thank you, Adam. Thank you, Michael. Tomorrow, I begin meeting with members of the Senate, which plays an essential role in this process. I will tell each senator that I revere the Constitution. I believe that an independent judiciary is the crown jewel of our constitutional republic. If confirmed by the Senate, I will keep an open mind in every case, and I will always strive to preserve the Constitution of the United States and the American rule of law. Thank you, Mr. President. We'll be right back.

Carl, what's the current math in the Senate when it comes to this nominee, Judge Brett Kavanaugh? Well, it's 51-49 in the Senate when it comes to this nominee, Judge Brett Kavanaugh? Well, it's 51-49 in the Senate right now, but Senator McCain, of course, is gravely ill and has not been in the Senate for months. So it's really 50-49. So the Republicans really have no room to spare here. Really, the fight's going to come down to a handful of people, and I think the focus will be on them throughout. So if all the Democrats in the Senate stick together and oppose Judge Kavanaugh, Republicans cannot lose a single Senate vote. That's correct. And Carl, what does the math in the Senate, this incredibly slight majority Republicans have,

what does that mean for what will be happening in the Senate starting this morning on Tuesday, now that we know who the nominee is? Well, the focus is really going to be on Senators Susan Collins of Maine and Lisa Murkowski of Alaska, because they're pro-choice. They're seen as the two Republicans most likely to split. So the Republicans are going to be trying to keep likely to split. So the Republicans are going to be trying to keep them on board and the Democrats are going to try to break them away. But I think something really to watch for here is how Democrats are going to try to make this about health care.

What do you mean? Health care is an issue that has kept them together. If you remember, they stayed united during the efforts to repeal that. And who were they joined by? I made a statement to the president with my colleagues and with his team there that I'm not voting for the Republican Party. I'm voting for the people of Alaska. I remember being so proud of you for saying directly to the president. His statement, he wanted to know how Brett Kavanaugh felt about protecting the pre-existing condition insurance protection that voters and the public in West Virginia have.

So the Democrats are really going to push that issue. So help me understand this. If Senators Murkowski and Collins are both pro-choice, why not focus on Roe v. Wade? Why focus on health care? Wade or I don't, where maybe they think they can get something out of health care. But honestly, they're tied together, health care, abortion, Roe v. Wade. These are all of a part. But you'll hear a lot about the Affordable Care Act. And just to understand exactly why, Democrats are appealing to those two senators' sense of legacy. You have done something bold and courageous in defending a health care law that most of your party doesn't like. So keep defending it and protect that legacy by opposing a nominee who might undo it. Correct. Stand with us on this.

I'm not sure that it'll work, but I think that is part of their strategy right now. You mentioned Senator Joe Manchin as a Democrat who is in a tough spot. Who are these Democrats who are in a similar predicament when it comes to this nominee? Well, Senator Manchin, obviously. Senator Heidi Heitkamp from North Dakota. Senator Joe Donnelly from Indiana. Those are all states that the president won with big numbers, and there's going to be a lot of pressure on them because they voted for Judge Gorsuch. So these are three or four Democrats in states that President Trump remains popular. And so they're presumably facing tough reelection battles and find themselves having to figure out kind of a complicated political calculus of blocking a President Trump nominee or infuriating their own party, Democrats. Right. And the leadership Democratic strategy right now is to at least keep these members on board

for now and try and pressure Senators Collins and Murkowski to stay at least united at the beginning. Don't throw in the towel immediately. You know, let's see how far we can get. I'm struck by a kind of complicated equation that's going on here. If these red state Democrats do stick together and block this nominee and head into the midterms in the fall, and these Democrats in red states are punished for it by voters in their states, they could ultimately cost themselves the Senate majority. But they will have blocked a Supreme Court nominee by Trump.

But they can't block it by themselves. They would need Republican help. You have to remember that. But I do think you've touched on something that is a concern with Democrats, that if they have some success, we might drag this past the election and then our people are going to lose and we're going to have even fewer members and give Trump more leeway on nomination. So this is a really complicated political chess match that's going on here. And I think there'll be a lot of twists and turns going forward. Hieberman reported that Senate Majority Leader Mitch McConnell warned President Trump that Judge Kavanaugh, who he just selected, would be a tough pick. Is that true from your understanding? Well, I think what Senator McConnell was saying is that Judge Kavanaugh is a real creature of

Washington and a real creature of the courts and has a long history in Washington of being involved in a lot of big political moments. As I look through all of the different issues that you have been involved in as an attorney. Senator Durbin once called him the. It seems that you are the Zella for Forrest Gump of Republican politics. Forrest Gump of Republican politics. What does that mean? Well, that he's always there at some of these big pivotal Republican moments like the Clinton impeachment investigation, the Florida recount, right?

So people in Washington know him, but he also has this long paper trail. So they're going to be pouring through this. And it just means that there's a lot to work with. just means that there's a lot to work with. The Democrats and some of their allies were really getting worried that the president was going to select Judge Hardiman, who they thought was going to be tough to pick apart. There wasn't as much there. So they were actually, in a quiet way, cheered by the Kavanaugh nomination. They think they have more to work with. Also, I think that the Gorsuch nomination is still reverberating among Democrats a little bit. They don't think they did a very good job impressing him during

the hearings. If you'll remember, he came in early. It was the beginning of the Trump administration. So many things were going on. And I think that they feel in some respects that Gorsuch got a free pass. This is a super important seat right now. They are going to go after the nominee with everything they've got. And I don't think they look at Brett Kavanaugh and say, he's going to be OK for us on the court. He came up through politics and through the White House. And I think they see him as a political operator. This is a guy who's been through the Senate.

He's been confirmed. He's super smooth. He's a Washington guy, and he knows what he's doing. I think it will take some extraordinary information, some remarkable turn to ultimately prevent him from being confirmed. But that's not to say it's not going to get messy. Carl, thank you very much. Michael, thank you. Here's what else you need to know today.

David Davis, in as simple terms as you can, what is your difference of opinion with the Prime Minister? Essentially, two policies and the tactics. The policies are that we are now proposing to use the same rulebook, or the same laws, really, as the European Union. Not equivalent, not similar, but the same. And that will provide all sorts of problems when it comes to, if we want to diverge, do something different. Two members of British Prime Minister Theresa May's cabinet have resigned in protest of her plan to remain closely tied to the European Union, even as she pursues Britain's exit from it.

The two cabinet members, David Davis, who had been overseeing Britain's removal from the EU, and Boris Johnson, an outspoken advocate for the exit, quit within 24 hours of one another, leaving May's government in crisis. In an interview with the BBC, Davis said he refused to be the public face of May's Brexit plan because he no longer supported it. The point is, I was the person who had to present it to Parliament, to the European Union, to everybody else.

And if I don't believe in it, then I won't do as good a job if I don't believe in it, then I won't do as good a job as someone who does believe in it. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.