The NPR Politics Podcast - Kavanaugh Hearing Day 2: SCOTUS Nominee Defends Dissents On Abortion, Gun Control

Episode Date: September 6, 2018

Supreme Court nominee Brett Kavanaugh is presenting himself as an open-minded judge who is guided by the law but not indifferent to the effects of his decisions, during a marathon day of confirmation hearings. Democrats questioned his perspective on abortion, gun control, and executive privilege. This episode: political reporter Asma Khalid, legal affairs correspondent Nina Totenberg, and political editor Domenico Montanaro. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Laura. I'm starting my first day of my master's degree in political science today. This podcast was recorded at 526 p.m. on Wednesday, September 5th. Things may have changed since you heard this. All right, here's the show. Hey there, it's the NPR Politics Podcast. Supreme Court nominee Brett Kavanaugh was grilled today by senators about his stance on abortion, gun control, and presidential powers. I don't live in a bubble. I understand. I live in the real world. I'm Asma Khalid, political reporter. I'm Domenico Montanaro, political editor. And I'm Nina Totenberg, NPR's legal affairs correspondent.

So Nina and Domenico, before we dig into some of the major questions that were put to Brett Kavanaugh today, I'd love to get your, both of you, your sort of quick takeaway of what you thought was the most illuminating from today. You know, if you really step back and you look at these hearings as drama, as theater, you know what the Republicans wanted. They wanted Kavanaugh not to get entrapped, not to commit himself on almost anything, and to look like a wonderful, cuddly, warm and human person. And they certainly succeeded on him not committing himself in most regards, although there were moments where he clearly was uncomfortable. Still, he's a pretty serious guy. He's not, even though they gave him every opportunity to be funny, to show his warm self, to show his dad self, his husband self, it didn't really work well. What worked for him was being serious, and he was very serious, but in political terms, I would say not what politicians would love to be likable, to be lovable. Right. And at the same time, you know, he's not running for office.

He is trying to be appointed to the Supreme Court and voted on by we've seen has been unlike really anything in past Supreme Court confirmation battles. And it really is this kind of thing where the Senate often likes to sort of side eye the House and like to refer to the House as the lower chamber and themselves as the upper chamber. More high-minded. Yeah. But a lot of that, frankly, was because of the filibuster, because they had to find 60 votes and had to find some level of compromise to be able to advance nominees or to be able to advance legislation. And with that gone, boy, they sure seemed a lot like the lower chamber too. At the same time, we did get some substance from Kavanaugh today. And what he was really trying to do for Democrats was to show his independence. And he kept talking about that over and over again. I think the first thing that makes a good judge is independence, not being swayed by political or public pressure.

That takes some backbone. But I think one of the things that's really interesting is ever since he was nominated and ever since the point he's been doing these interviews in these meetings with various senators, again and again, the question of where he falls on major legal issues keep coming up. And today, senators on both sides of the aisle had the opportunity and they were, in fact, tasked with really drilling down on some of that substance. And what we ultimately saw is that a number of Republicans asked these really softball questions. What makes a judge a good one? What makes a good judge? Free speech. Where were you on September 11, 2001? Where were you when you heard that the planes hit the World Trade Center in Washington, D.C. and another plane hit the Pentagon here in Washington?

You know, in these days when the senators on each side are pretty well decided, I don't think anybody thinks that any Democrat on this committee is going to vote for Kavanaugh or that any Republican is going to vote against him. two things at these hearings. To help him look his best, to have softball questions and use half the time up doing that, and to, what they call in a trial, sort of immunize him from attack. So his supporters bring up what they know will be the critiques of the nominee and give him the broadest room to answer those questions before anybody on the other side gets to beat him over the head over the same issues. And then to your point, Nina, I mean, we then did hear a number of Democrats really pushing him on some of these issues. Let's start specifically with abortion. He was asked a number of times about this. And here's specifically how Kavanaugh responded to a question from Democratic Senator Dianne Feinstein.

What would you say your position today is on a woman's right to choose? As a judge. As a judge. As a judge, it is an important precedent of the Supreme Court. By it, I mean Roe v. Wade and Planned Parenthood versus Casey. Been reaffirmed many times. Casey is precedent on precedent, which itself is an important factor to remember. And I understand the significance of the issue, the jurisprudential issue, and I understand the

significance as best I can. I always try, and I do here, of the real world effects of that decision, as I try to do of all the decisions of my court and of the Supreme Court. So cut and dried, right, Nina? Roe v. Wade stays in place, right? Well, no, we don't. You know, the Supreme Court can always reverse precedent, and it can certainly nibble Roe v. Wade almost to death so that in all the states that have a lot of anti-abortion laws on the books or that

are planning to adopt more, that in those states, abortion could become, if the Supreme Court were to say that's okay, abortion could become basically inaccessible, and you'd have to go to a different state to get an abortion. This is something that a lot of people have been talking about before Kavanaugh got to the nominating seat, essentially, where, you know, when we look back at his record on abortion rights, for example, you know, there's been so much attention on whether or not Roe v. Wade itself would stay in place when really it's not so much to do with whether or not Roe v. Wade stays and more to do with depending on what winds up coming to the court, whether or not, you know, they allow more restrictions to be put in place in states that have been hostile to abortion rights. And you could wind up with a bifurcated situation in this country where essentially red states have where abortion is all but banned and blue states

where it's allowed. Nina, there was an iteration of this question I know posed to him even yesterday in some of the opening statements about whether or not he sees Roe versus Wade as settled law versus correct law. Did we get any greater clarity on that? No. What he said was that Roe versus Wade is precedent on precedent, meaning that it has been reaffirmed, in fact, over 40 plus years. But critically, it was reaffirmed in 1992 in a way that specifically looked at whether Roe versus Wade should be binding precedent. And the Supreme Court said, yes, it should. Even some justices who said they probably wouldn't have voted for it originally said people have relied on it for a

long time. It just has to stay in place. So Nina, let's talk a little bit more about this word precedent because Brett Kavanaugh kept using this word. I heard it so frequently in a number of his responses. Respect for precedent is another one. We are a system of constitutional precedent as a matter of precedent. Again, this is all about precedent for me. Precedent on precedent. My personal beliefs are not relevant to how I decide cases. The role of precedent, precedent. I had to follow precedent. Nina, what does he mean by that? Well, there's this doctrine called stare decisis, meaning the decisions of the court are like building bricks in a wall, and that you can't just take them out because the wall starts to crumble. People have come to rely on that wall of precedence. It's called, as I said, stare decisis. My husband calls it stare stare night so he can remember it. So for all of the kind of rule bound and stare decisis comments that Kavanaugh made, in the last analysis, when you're on the Supreme Court, you can change the rules.

And it's been done. It was done twice in the last term, the court reversed two important decisions. You know, it's kind of odd for me, I feel like when I was listening to Kavanaugh, it's like a lot of the nominees nowadays kind of almost talk like they're Supreme Court historians more than they do, you know, a potential justice because they don't want to show their hand, right? I mean, as far as like how they're going to rule on something. In fact, he kept saying, you know, that's a hypothetical situation. I'm not going to deal with a hypothetical. And they keep citing other judges and how they've dealt with it before. So it's almost like these senators have their minds made up kind of going in based on the record, not necessarily based on what they get out of these hearings.

I guess my other bigger question, too, is to some degree, there's some sense of, you know, personal belief that comes into a number of his decisions. And he was certainly asked about that. And you've got to wonder when he keeps talking about precedent versus precedent. I mean, maybe this is a bit of a question out of left field. But Nina, I was wondering, I mean, up until this summer, the very famous Korematsu versus United States case with Japanese internment had not been overturned. So does that mean that theoretically, if he was a justice, he would just think that that was precedent? Well, it's a very good question. And one of the classic questions is, when do you overrule past

decisions? I mean, Brown v. The Board of Education overruled decisions for decades earlier that said that segregation of the races in public schools and elsewhere was constitutional. So there isn't a yes or no answer. And just as when Kavanaugh says, you know, I don't live in a bubble, I know what the real world is and I consider the consequences. But at the same time, he says, I can't be considering how this might affect, for example, in guns because that was also a major topic of conversation today. And there's a question in particular I want to talk about, which is where Senator Dianne Fein you give us a quick explanation of what she was actually referring to, what that court decision was and what his dissent was? Well, I mean, big picture, you know, and Nina can talk in more detail about this. It was kind of a pivotal case in 2011 that was about the Second Amendment. And Kavanaugh essentially wrote a dissent from the D.C. Circuit Court that had upheld basically a rule or an ordinance that had banned most semi-automatic rifles. So he argued against that and argued that the Second Amendment

really included the right to own those semi-automatic rifles. And that kind of came up today because, you know, he was asked by Senator Dianne Feinstein about how broadly people use these weapons. And he essentially said that they're out there and that they that they exist. You're saying the numbers determine common use. Common use is an activity. It's not common storage or possession. It's use. So what you said was that these weapons are commonly used. They're not. They're widely possessed in the United States, Senator, and they are used and possessed. But the question is, are they dangerous and unusual? They're certainly dangerous. All

weapons are dangerous. Are they unusual? And given how prevalent they are in the United States, it seemed under Justice Scalia's test, if you look at the majority opinion in McDonald, the same thing. I want to reiterate, the Supreme Court made clear that machine guns can be banned. Machine guns can be banned. Nina, can you explain what exactly he was referring to? I mean, it seems that he's suggesting that the semi-automatic weapons that he did not think should be banned are fairly in common use, and that's his justification for why they should be allowed? That is his justification, and he maintains that that's what Justice Scalia, who authored the opinion for the Supreme Court that said there is an individual right to own a gun,

and in that particular case, a handgun, for self-defense in one's home. That's what the Supreme Court said. And when the Supreme Court issued that opinion, Justice Scalia, the author, had a bunch of exceptions. And the question that remains really is, are those exceptions pretty much the main ones that the court is going to honor and no other ones? Or are there going to be lots of other exceptions in the name of public safety that are permissible? The Supreme Court has not accepted a gun case in, I don't know, about 10 years, I think, almost. And the assumption has been that that's because there weren't five votes to expand the earlier decision and say there are more gun rights and less legislative rights to regulate. And now, I think if you look at Kavanaugh's dissent in that semi-automatic assault weapon ban case, you see that there probably is probably a fifth vote that

is willing to look more generously at gun rights and less generously at legislative powers to regulate. I think it's interesting that you have this dangerous and unusual kind of clause that Kavanaugh was talking about, because he's saying that the weapon is clearly dangerous because all weapons are, but they're not unusual because of the numbers. Now, you could say that someone could argue that they're unusual because of how they function and how they operate. But he chose not he chooses not to view it that way. And there were a lot of senators who kind of got into, you know, what exactly his views are, not just on guns and other places like that, but on like, you know, how he views textualism, right? Like he's seen as a textualist. In other words,

somebody who will look at the law and look at the statutes word for word, right? And say, if it's not in there, it's up to Congress to figure it out and put it in the law. And then we can go based on that. But there are a lot of things like independent agencies or heads of those agencies, like for the CFPB, the Consumer Financial Protection Bureau, where he said he thinks that that job, the head of that job, because there's basically no oversight of them, that that job should be something that the person is at will. They could be fired not for cause. So a lot of Democrats are trying to paint him as somebody who tries to have it both ways, depending on what his outlook is. Well, there's one more big issue I want to have us talk about today,

and that is presidential power, executive privilege. Let's first actually just start by taking a listen to how Brett Kavanaugh responded to a question posed to him by Republican Senator Chuck Grassley. Please tell us what judicial independence means to you, including whether you have any trouble ruling against the president who appointed you and against the executive branch in any case before you? You partly talked about independence, but apply it specifically to a ruling against the president or the executive branch generally. Thank you, Mr. Chairman. To begin with,

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 as 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. So, I mean, that was a pretty, substantial questions about how Kavanaugh would deal with a very strong executive branch got any satisfying answers to some of the questions they had? don't have somebody forced to give you a yes or no answer who can give you a long and as Senator Feinstein at one point, she said, well, you've learned your lessons. Well, you know how to filibuster. I have to say that the senators, at least this time, have not talked more than the nominee. That's often the case. I'm one guy who used to deal with Republican administrations for in Supreme Court nominations said,

you know, if the senators are talking more than a nominee, you know you've got it made. Well, I would say that the senators have not talked more than the nominee, but they have a very limited time window, and they know that, and they can't just keep him on the witness stand for hours on end, each senator. And that's probably the only way you could wear him down and try to get a real answer. And he has the votes. I mean, that's the biggest reason why he has an upper hand here for sure. There was one moment in the hearing where he sort of seemed to struggle a little bit. And, you know, you could see how over time, if he was given this kind of, you know, thing where he wasn't expecting this kind of question that he might crack a little bit. So, Nina, do we have a sense of what questions are still left unanswered about Kavanaugh's individual positions?

I know today we got some clarity a bit on, you know, abortion, gun control and executive power. Are there more questions on that front or other things that we can expect to see here about tomorrow? gotten to. This man has written 300 opinions. He has been one of the most conservative members of the D.C. Circuit, even when it was controlled by Republican appointees. And now that it's a circuit controlled by actually Democratic appointees, he was even more in the minority. But there's a limit to how much tolerance there is for these kinds of hearings. I don't know. The chairman seems absolutely determined to get through the first round of questioning tonight and to finish tomorrow. And, you know, I think to the point of when Nina's talking about, you know, why Grassley is sort of pushing this process along and was willing to go fairly late tonight and wrap it up tomorrow is because Republicans want to get Kavanaugh seated. They want him on the Supreme

Court before the fall session begins and before the election to get it out of the way. All right. Well, we will continue watching the Kavanaugh hearings tomorrow and we'll be back in your podcast feeds as well tomorrow for our weekly roundup to give you the latest on what happens there. And you may have heard about this anonymous op-ed written by a White House official in the New York Times. We will talk about all of that and more in tomorrow's podcast. I'm Asma Khalid, political reporter. I'm Domenico Montanaro, political editor. And I'm Nina Totenberg, NPR's legal affairs correspondent. And thank you for listening to the NPR Politics Podcast. Sam Sanders here.

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