Brett Kavanaugh Prepares for Contentious Confirmation

and get out of jail free card. He's chosen someone who sees no limit to presidential power. He doesn't believe that the president should be investigated when in office, which is clearly completely outside of the mainstream of America. Joining me is Miguel Estrada, a partner at Gibson Dunning Crutcher. He's a former federal prosecutor and clerk to Justice Anthony Kennedy. His nomination to the d C. Circuit Court by President George W. Bush was blocked by a filibuster by Democrats.

Welcome to the show, Michael, Well, thank you for having me. Will you explain how a judicial nominee is prepared for confirmation hearings, Do they take him through days of mock questioning? What happens? Well, that depends on the court and the nominee. UM. You know, for dist records and courts of appeals, on the Supreme Court, you have different processes, but generally you

expect the senators to ask a range of questions. For Court of Appeals and for the Supreme Court, you would expect the lawyers of the Department of Justice to have some sessions with the nominee during which the nominee will be asked some sort of UH, a series of mock questions, UM that are intended to replicate the types of questions that he will he or she will be asked UH

during the actual hearings. UM sort of practice sessions. And obviously we have all seen a number of confirmation hearings in the recent past, UM, and I think we all have a reasonably good idea of the types of questions that senators of both parties are likely to ask so of Supreme Court nominees. So Supreme Court nominees have been successful, it seems in not answering the questions that senators pose.

Neil Gorcich, who obviously made it to the Supreme Court, refused to say how he would rule on a range of issues from abortion to gun rights. Is there any way to put Kavanaugh in a position where he would have to answer or face looking untrustworthy. Perhaps, Well, I think that there is sort of a larger issue here. You're asking people to become judges on questions that will come in front of courts, and you can't really anticipate the full range of questions that will come in front

of the court. You do not like people to go on courts, having already seemed to have promised a particular outcome to senators during a hearing, and Uh, nominees of both parties have been very careful to answer very little specifics for that reason. Um, that doesn't really go as

far back as just as Gore search. Um. If you go back to three with Justice Ruth Bader Ginsburg, Um, she was very clear at the outset that she could not give any hint or any clue as to how she might answer questions with respect to issues that would come in front of her as a justice. Um. So this is something that has been going on for decades now with respect to people who go on the Supreme Court, especially because those people are likely to hear pretty much

any issue that comes in front of our courts. Um, and you don't want people later claiming that as a result of an exchange that they now justice had with a senator, they cannot sit on the case. And so, yes, there is a natural inclination for people to know a lot about how judges will rule. Um. But the more you ask uh and the more you try to get into the specifics, the more you disable justices later to

do the job that they're being confirmed to do. So in this case, we have of a Supreme Court nominee who was vetted by the Federalist Society, which is a very conservative group, and I assume a lot of that was based on his decisions, the three plus decisions that he's written. So is that what senator should really take as the way the justice is going to rule in

the future. Look at what how he's ruled in the past. Well, I mean you have to understand as well with him with Justice Court search Um, with Justice Ruth Bader Ginsburgh, who had also been a judge on the DC Circuit Court of Appeals, like Judge Cavanaugh, Um, there's a little bit of a difference between how judges rule out a lower court judge when they are bound by Supreme Court authority him, how they might rule in the Supreme Court

when they essentially are not. UM. But I think you can get a lot out of the lower court rulings, how they how they approach legal problems, questions of methodology, how they think. UM. And obviously, somebody who has a reach a rich track record of opinion writing gives a lot of material to senators of both parties to learn how they think and how they come to solving legal problems.

So it's not so much that they that those cases tell senators exactly how they judge will rule in future cases, because in some of those cases the judge may have been bound by Supreme Court authority. UM. But it does, uh, you know, that body of work does tell uh, you know, the senators how they're know many things and how it so how he solves legal problems. So is in your opinion, is Judge Kavanaugh a reliable conservative vote? Well, I think

he is a conservative vote. Um. But this is a question of course, UM, that has a different meaning to two members of different parties. UM. I am a member of the Republican Party. I have I think that you know, the judge is a very good pick for a Republican president. UM is brilliant and distinguished and hard working. UM has a great work ethic, and I think he will be

a great justice on the Supreme Court. UM. That is not to say, UM, that he will be the favorite pick of a member of the Democratic Party, UM, or that he will be an extreme right uh pick. UM. You will have noticed, no doubt that in the eve of his nomination by the President, there were members of right wing groups who were urging the president not to nominate Judge Kavanaugh on the theory that he was not

a reliable conservative. So Judge Kavanough is in the odd situation of having had people on the right UM urging the president not to nominate him on the theory that he was not sufficiently conservative, and now just a few days later, having you know, members of the Democratic Party charging that the President has essentially uh named somebody who's too conservative. UM. In fact, he is you know, a uh centrist conservative jurist who is a very distinguished lawyer.

But is he conservative. Of course is conservative. He's a nominee of a Republican president. For a vacancy in the Supreme Court. It's only about a minute here. From a personal note, can you explain what it's like to face that hostile questioning in public? Is it as painful as it looks or do you become a new to it? Well, I don't know. It's been a long time since I did that, UM, and I consider that ancient history as far as my own experience is concerned. UM. I would

think it's worth for members of the candidate's family. UM. You know, the nominee is there to answer questions, and it is true that there are some members of the Senate who are not always on their best behavior and can be unpleasant. UM. That I think you know reflects more poorly on them than on the nominee. UM. But intimately, I think you know, the American people will make a judgment as to whether, you know the quality of the responses and of the truck record of their nominee is

one deserving the confirmation. Thank you so much, Miguel. We run out of time. I wish we could talk longer. That's Miguel Astratogy's a partner at Gibson Done. President Trump announced his pick of a Supreme Court Justice Brett Kavanaugh last night. For the last twelve years, he has served as a judge on the d C. Circuit Court of Appeals with great distinction, authoring over three opinions which have been widely admired for their skill, insight, and rigorous adherents

to the law. My guess is Harold Kent, dean of the Chicago Kent College of Law and author of the book Presidential Powers. Harold Trump chose a Washington insider with an Ivy League pedigree, a paper trail of judicial opinions. Was it a smart choice? I think it was a smart choice for President Trump. Possibly one um warning sign because he's clearly bright, he has friends on both sides of the political aisle, and but he's also a true conservative and will write the kind of opinions that the

Trump administration would want him to write. What warning sign do you see? But if I were the Democrats, I think I would pick not on roversus way. It's the way the commentary shipping up right now. Um, I would think that he's most vulnerable, but because of his prior defense of presidents and his call to immunize them from

any kinds of investigations. While in office, and we could the Democrats might be able to seize on that as to suggest that we don't want a justice at this time who has come on the record to the extent that he has in terms of trying to immunize the president to certain extent from any kind of legal process while he's in office. Is that balanced out by the fact that he worked with Ken Starr when he was

independent counsel on President Bill Clinton's impeachment. Well, what it seems like is he is willing to defend Republican presidents, perhaps more than Democratic presidents. But I think his writing since that time again has cast out on his his willingness to support a vigorous investigation to the president um. And I have some sympathy partial sympathy for his his opinion.

But nonetheless I think that that is a vulnerability that the Democrats could seize upon to suggest that this is not the right time to have a justice like that in the office. But again, in terms of his record on the d C circuit um, he is a true conservative, and particularly he's anti regulation, he's pro employers um, and he's probably in favor of limiting some of the sort of social social issues up, So I think he's a

good choice from that perspective for the Trump administration. Are legal experts right into including that putting him on the court will make this Supreme Court the most conservative and ideologically divided court in modern history. I wouldn't say necessarily so that necessarily the most, but certainly the appointment will

push the Court to the right. Um he's replacing Justice Kennedy, and now the median will shift to Chief Justice Roberts, who is again a very conservative justice, but he will be more to the middle on some issues anyway, and has demonstrated that he would be in comparison to Capital.

The other thing I think that pundits have not mentioned is this will affect the choice of which cases the Court may accept, because it just takes four votes too for the Court to take a case except the case, and given his interests in a deregulatory move, and given his interests in a strong president, we should see a different kind of shape of the of the cases that are accepted by the Court for review. Harold, have we passed the time with all the you know, the rigorous

vetting that's done of these nominees. Have we passed the time when a justice might drift to the other side, whether you know, for the conservative towards the liberal side or a liberal towards the conservative side, or they do they all stay in their lanes. Now that's a great question. Obviously, people talk about the suitor effect because it was Justice Suitors appointment Um that triggered this whole inquiry, because he became more liberal with time, and that's I think the

factor that it's hard to predict. Yes, it's true that we have a track record for Justice Um Kavanaugh, but there are other factors that may affect him over time. Certainly, not in the first year Um and Corsats, for instance, was predictable Um. But maybe in three years and ten years somebody like a Justice Cours or Justice Kavanaugh can

react to circumstances and moderated to a certain extent with time. Certainly, as you as you put it nicely, we expect us as as to stay in the the lanes more than the US too, because we just know so much more about

them and they've been vetted so much more strongly. It doesn't seem like many people are bringing up the fact that Kevin was nomination to the d C Circuit by President George W. Bush was held up for three years by Democrats who argued that he was two PARTI is in then and now he has this record of opinions that he's written, but has has the Senate chained so much that that won't make a difference. I don't think they will make as much difference because of the passage

of time. And he's served on the court for about twelve years um, and that means that at least you know in terms of his tone of his opinions, in terms of uh, we can we can judge them, and the Democrats can assess that as well, because before he was viewed more as someone who was involved in all of the Republican high controversy cases from the Bush versus Gore ballot counting to the Vince fosse or suicide to

the impeachment. And since that time, of course he's more viewed, is more measured because he has served as a judge. So I think that the fight now will focus more on what's in the paper so far ro versus Wade. Um. Certainly, it's it's hard to pin him down what his views are on ro versus Wade. And secondly, as I suggest, if the Democratic Um operative asked me, I might look at to see what his to try to pry the level of his views on immunizing a president from legal process.

All right, thanks so much, Harold. That was really insightful and your book is right on the money right now. Presidential Powers is the book. That's Harold Kent. He's Deen at the Chicago Kent College of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg. Then the Dacot