Kavanaugh Confirmation Enlivens Both Parties

On November six, Speaking with Fox News Sunday Yesterday, send Up Majority leader Mitch McConnell defended his party's handling of the nomination. We didn't attack the nominee. We didn't go on a search and destroy mission. I agree that with Chuck show me this has been a low point in the Senate. I have a different view about who caused

the low point. And joining us now is Anna Edgerton Bloomberg News Live in our Bloomberg studios in Washington, and I keep hearing the Republicans are energized, and then I keep hearing the Democrats are energized. Does anybody have the edge out of this? Well, both sides are energized. The difference is Democrats were already energized. So if you look at enthusiasm from the Republican and Democratic base, Democrats were already fired up. They've been fired up since twenty sixteen

when Donald Trump was elected. So the Republican base really has more to gain in response to this really messy confirmation fight. And looking at the mid terms and the Senate seats in the mid terms, which senators are more at risk because of the Kavanaugh nomination and confirmation. Well, you have the Democratic senators in the states that Trump won, like Heidi hide Camp who voted against kavanaughs confirmation. You see Joe Mansion in West Virginia who evaded and voted

in favor of kavanaughs confirmation exactly for that fear. He comes from a very conservative state that pretty much wanted Kavanaugh confirmed. Another interesting Senate race to watch is in Tennessee, where Phil Bretson, the Democrat, said that he would have voted for Kavanaugh had he been in the Senate. He's running against Republican Marsha Blackburn, who has not really managed to create the enthusiasm among GOP voters in the gap

establishment in in the state of Tennessee. Joe Manchon did he have everything to lose, but really nothing to gain in West Virginia by voting the way he did well. Joe Manon is a Democrat, but he's very popular in West Virginia, and he was in a very strong position, maybe even surprisingly so for a Democrat this year in West Virginia. It was a tough situation for him. If he voted against kavanaughs confirmation, he was going to face

a lot of backlash room conservatives in a state. But voting for kavanaughs confirmation, he's faced some pushback from Democrats in the state who said, listen, we want a Democrat in the Senate to vote the way the Democrats vote. So there really was no easy thing for him to do.

And it was interesting that he waited until after Susan Collins, a Republican main had said that she would vote in favor of Kavanaugh's confirmation, so we knew that he was already going to be confirmed, and it was kind of a little bit of a less of a consequence vote for for Joe Manchon at least to not be the deciding vote. What about Heidi hide Camp, what's happening with her race now? I think she probably wanted to vote against Kavanaugh initially, but she was kind of making noises

that she was considering voting in his favor. But these allegations from Dr Blasi Ford made it a bit easier for her to vote against Kavanaugh's confirmation. So one of the outcomes that we see from the allegations that surfaced last month is that some of the Democrats in conservative states who would have voted for Kavanaugh's confirmation felt like

it was a little easier for them not to. There was a Washington Post Our School poll of sixty nine battle Ground District's release today and it showed that fifty of those surveys said they preferred Democratic candidates compared to who backed Republicans. That sounds to me like a sign of potential trouble for the GOLP. Yeah. I mean, the GP was already facing headwinds in this midterm, so the best they could hope for from the fallout from this kavanaff fight is that they would close some of the

gap that they were already facing. And one thing I think you'll see from Americans is that a lot of people might want divided government, in which case they could vote for a Democrat for the House and a Republican for the Senate as kind of a way to check the President and the Trump White House and not give Republicans full control of government as they've had for the past two years. So, Heidi, what do you see President

Trump doing in the various locations he's going to be? Sorry, Anna, how what do you see President Trump doing in the locations that he's going to be campaigning in in the next month. Well, Trump is, as we know, kind of a no holds barred kind of guy. So I think it's going to be very strategic where Republicans choose to send the President where he chooses to go. He's only going to go to those states or those districts where he can really let loose and say, you know, raw, team,

we're getting all these conservative wins. We're just winning, winning, winning fight the Democrats. And he's going to go to states where that is well received. You'll probably see less of President Trump and less of other White House officials in the really close swing districts where a moderate Republican has a better chance of winning. Listen, a half minute left here. Hasn't this sort of welcome people up on both sides of the aisle? Yeah? I think that's true.

Like I said before, Democrats were already energized. So poles show that Republicans have gained in uh the gap of the enthusiasm gap that they had compared to Democrats at the beginning of the month. So we'll see. You know, it all comes down to turn out like in every other midterm race. All right, Anna, thanks so much for being here. That's Bloomberg News congressional reporter and Edtiner. On Saturday, the long, nasty fight finally all came to an end.

The Senate voted fifty to forty eight to confirm Brett Kavanaugh to become an Associate Justice on the U. S. Supreme Court. To call the process contentious would be a gross understatement. There were charges of sexual assault, drunken partying, a sense of entitlement, and more. As main Republican Susan Collins officially lifted all those clouds hanging over the nomination in an impassioned speech on the Senate floor on Friday,

she limited the divisive process. Our Supreme Court confirmation process has been in steady decline for more than thirty years. One can only hope that the Kavanaugh nomination is where the process has finally had rock bottom? Well has it? We are joined now by Neil Kinkoff, Professor at Georgia State University School of Law. Thank you very much for

joining us. Senator Collins may have ended the questions about his confirmation, but she she didn't end the questions about his partisanship, his lack of judicial temperaments as seen by some How do those things follow Kavanaugh into the courtroom? Well, I think it'll those will follow him into the courtroom when it comes to really contentious issues that the court decides. So primarily I'm thinking of the various questions that are

inevitable to arise out of the Mueller investigation. UM, it's hard to imagine how he could look credible if he votes UM in a way that favors the president. Neil, let's talk to just a little bit about the justices. And the justices are coming behind him, and they're saying all the right things. But we know that former Justice John Paul Stevens was not of the same mind. He said that he was not fit to sir of on the Supreme Court. Do you believe that some of the

justices might feel that way as well? But are just papering it over because I have to work with this man for the rest of their careers. Yeah, I think that's absolutely possible. Um, they have to work with him for the rest of their careers. They form coalitions, so they're going to want to appeal to him. Um. And also the the institution itself is at stake, and they

are all very deeply invested in it. So they want to make the court look um, nonpartisan, look like a viable um institution that we should all put our faith in. So that's in every justice's interest. So what can they do at this point to make it seem as if the court is not partisan? Does it depend on the kind of cases they take? Might they take cases that are narrower and don't relate as much to social issues

for a while? I think that's absolutely right. I think they're going to try to bore us the death, put us sleep, and hope that when we wake up we will have largely forgotten about all of the late unpleasantness we had. Obama era era Attorney General Eric Holder reacting to the confirmation, he actually questioned the legitimacy of the court. Could that be a serious problem down the road? Oh? Absolutely, and it's it's not a new thing that the Court's

legitimacy would be called into question throughout history. That's happened with some frequency. Um in the wake of Bush versus Gore, there were some questions about it. I think certainly that was lurking beneath all of the litigation around Obamacare, and Chief Justice Roberts was especially concerned that the Court not look like it was acting in a partisan fashion to undo the signature program of a Democratic president with only

Republican votes. So Chief Justice Roberts has been very attuned to this throughout his time on the Court, and I think, you know, this is a this is the biggest challenge in that respect that he's going to face. So does he or or the rest of the Court have to do anything actively to regain the nation's trust, so to speak. I think he's going to have to work hard to try to build coalitions that aren't just five to four

partisan decisions. He's going to have to try to work across the judicial aisle um and try to bring on Justices Briar or Kagan or Justice ginsburg Um where they can and where they can't. I think he's going to have to be very careful to decide cases in a narrower way if he really wants to preserve the court's political capital. Justice Stevens, in his remarks, talked a little bit about or referred to recusal from certain cases that implying that there might be certain cases that Kavanaugh would

have to recuse himself from. Now you know, and I know what the usal processes like on the Supreme Court. No one knows why they were accusing, and there's no there are no guidelines for them. So how likely is that that he'll recuse himself? Well, I think it's really unlikely. Um, he's not in any formal position of conflict with respect the cases coming out of the Trump administration, and in fact, no justice has ever accused themselves just because the case

involves the president who nominated them. Um is a long tradition of justices ruling on those cases, and many instances ruling against the president who appointed them. Um. So I just I don't think he's going to be recusing himself. And I can't imagine himself any more than to Justice Thomas recusing himself in cases that involve claims of gender discrimination or sex harassment. Does what Nicey is as the breakdown of the process this time around. UH tell us

anything perhaps about the timing of future confirmations. Should the Senate steer clear of of mid term election years for example? Well, if they do that, then that puts half of the years off the table. Um. I don't think they will. UM. I think when these when these um, when these vacancies come up the Senate is the presidents are going to

nominate in the Senate will confirm. Where that might come into play is justices themselves when they decide to retire, trying to time it so that they avoid election years because we saw with but as we saw with with Merrick Garland's vacancy for example, those those can be held. So there there are no guarantees. Neil, what do you see? There has been talk about UH having an impeachment possible

of Judge Kevinoll if Democrats retake the House. That's been tried in the past but has never been successful with a Senate vote. What are the what's the likelihood that it might be tried again? It might be tried, it's completely feudal. The likelihood of its succeeding is zero. Right, you needed to did remove himself from the Court after a talk of impeachment well and also after his nomination

to be Chief Justice had been rejected. Right, so it was pretty clear that his continuing on the Court was not tenable. And in that case, what was involved, we're real credible allegations of financial and other sorts of improprieties. Um, Judge Kavanaugh is not accepting that he's done anything wrong, and so I I just can't imagine that the parallel applying to him. It is going to be very interesting watching this all play out. Our thanks to Neil Kinkoff,

professor at Georgia State University School of Law. President Trump is celebrating the confirmation of Brett Kavanaugh to the Supreme Court. Speaking at a rally in Kansas on Saturday, Trump called Kavanaugh an outstanding man. We have a great new Supreme Court justice, and he's gonna be there for many years. We are very very proud of him and what he

and his family had to endure. Looking into the future, now we have Jonathan Adler, professor at Case Western Reserve University School of Law and director of the Center for Business Law and Regulation, on the line with us. Now, obviously we won't actually know this until we see Brett Kavanaugh at work on the U. S. Supreme Court, But how influential could he be in shaping the High Court far into the future. Well, I think he will be influential, at least in those areas where he has shown a

great degree of expertise. Uh. He spent twelve years on the US Court of Appeals for the d C Circuit, which deals with a lot of the most significant cases involving federal regulation. And throughout his time on that court, we've seen him of an influence on the Supreme Court in terms of what cases the Supreme Court takes and

how the Supreme Court evaluates those sorts of issues. And so my view is that if he had that sort of influence on the Supreme Court before he reached reached that court, we should expect him to be even more influential now that he's not down the street but actually across the conference table. Some breaking news, Google says they're shutting down Google Plus for consumers. On this blog, Google shares are down two percent on the news that it's

shutting down Google Plus for consumers. Jonathan, though he was very influential in the cases that came to the court, might the Court step back a little bit from taking cases that are going to end up likely in a five four split for a while in order to try to repair the damage that's been done to its image. Well, I think certainly the Chief Justice, as we know, like to keep the Court out of high profile political disputes

when he can. I think also, whenever you have a new justice, it takes some time before the justices get a good sense of how the new justice is going to evaluate cases. And I think that it always tends to make the Court a little more reluctant to take new cases. And I think the political fight over Kavano's nomination and the wounds that it created will only magnify that normal tendency to move a little slowly when you

have changes in the courts personnel. We were speaking earlier in the program about President Obama's Attorney General, Eric Holder, questioning the legitimacy of the court given all that's happened leading up to this, Does the Court need to tread lightly to regain the country's trust. Well, I think if the Court just sticks to what it normally does, that over time, I mean, people will will realize that the Court is going to continue to decide the sorts of

cases that has always decided. Most of what the Court does is not the sort of thing that makes the front page of the New York Times. Most of what it does is provide clarity and consistency to various aspects of federal law, about rules that that relate to the regulation of business, the handling of various types of litigation, and so on, and uh that that sort of work is going to continue, and I think will will reassure folks at the Court is still very much the type

of court that we've we've come to down. Clarence Thomas said in his memoirs that he used to wear a bulletproof vest and those days are behind him. But Brett Kavanaugh, in his his confirmation was even more contentious, and he went outside the typical role of the Supreme Court nominee in several ways with the Fox TV interview, the Wall Street Journal editorial. So might it be more difficult for

him to overcome any preconceptions the public has. Well, it's certainly understandable that that some portion of the public is going to be skeptical of Justice Kavanaugh for some time, and he certainly should be aware of that. In terms of thinking about public appearances and the like, what sorts of speeches he gives. I think it would make sense for him to be aware that that, at least for

a time, he's going to remain a devisive figure. I would think and certainly hope that he at some point in the near future takes an opportunity to acknowledge and reflect on the nomination process and acknowledge his own part, particularly at that one hearing in in feeding the rancor, and the partisanship of this process. Can you give this a little color on what it's likely to be like the first time that Kavanaugh takes his place in the

Supreme Court. Well, he'll be he he will be on the bench tomorrow, I believe when the court uh, here's the oral argument and and um, you know, I think you know he will be at the end because the justice sit in order of seniority, with the Chief in the middle and then alternating on either side. So he will be at a at the far end of the court. Um. I don't think the justices are going to treat him

any differently. Um. Four of the justices in addition to the Chief, were at his swearing in on Saturday, including Justice Kagan and Ginsburg Um. But I do think there will be quite a bit of attention the first time he asks a question. I think a lot of us are wondering whether he will be as aggressive uh at oral argument as Justice Course, which was during his first term. And Um coming up is going to be the Court considering overturning the separate sovereign's doctrine. Where might his his

inclinations lie in that kind of a case. I think that that's a particularly hard case to judge for for a bunch of reasons, one of which is um. While Medici Circus he dealt a lot with questions of federal regulation, he didn't deal nearly so much with either questions of criminal law or with the issues of federalism. Because DC is not a state. The sort of federalism concerns that come up, for example, in this dual sovereignty case relating

to double jeopardy didn't really emerge. So on some of those sorts of issues, I think we really have a hard time and can only speculate about how he might approach them. Would you say the cases coming up on sexual orientation and gender identity would be some of the most closely watched just ahead. UM, well, certainly when the when the Court starts to take some of those cases.

I think those would be very closely watched. There are some cases relating to affirmative action relating to abortion that are working their way up in the lower courts. Um. There are some very important regulatory cases relating to climate change regulation or two uh the f SECS regulation that that also would be worth watching if they make the court. Thanks to Jonathan Adler, Professor at Case Western Reserve of University School of Law and director of the Center for

Business Law and Regulation. 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