Kavanaugh Faces Questions on Guns, Subpoenas, in Senate

and gun rights. Democratic Senator Diane Feinstein asked Kavanaugh about his opinion arguing for striking down the DC assault weapons ban and saying it was unconstitutional to ban assault weapons because they're in common use. Here's his response. Yes, and I was referring to some semi some kinds of semi automatic rifles that are banned by d C are in wides uh, widely owned in the United States, and now seemed to be the task that the Supreme Court had

set forth. Joining me is Neil Kincock, professor at Georgia State University College of Law. Neil, what struck you about Kavanaugh's answers this morning. Well, he's being very careful, so the process proceeds with senators coming at him with sharp implements and him trying to apply anesthesia. And I'm afraid the result for for those of us watching feels like we've been lobotomized. Well, you know, Supreme Court nominee seem

to be more and more adept at evading answers. So Kavanaugh has said he doesn't want to comment on things that were litigated before, like presidential subpoenas. He doesn't want to answer hypotheticals on presidential pardon power or something that's going to come up. He doesn't even want to comment on past Supreme Court rulings like row View Weight, except to say it's settled precedent. So what is the point of these hearings. Well, it's a kind of pookie, right.

So the hope is that among senators is that they will catch him and trip him up and he'll say something substantive um. And his job is to try to run out the clock and not say anything that gives anybody reason to object to him. So he'll say say, excuse me, assidents can't be overruled, or much more importantly, that precedents cannot be revised, revisited and rendered meaningless even though they're not formally overruled. And that's much more the

Supreme Court's usual way of doing business. So we know that every Supreme Court nominee who's come before a committee like this says that they're they're going to follow established precedent. But then we saw Gorsuch his first term on the bench, and he participated as the fifth vote in a decision that overturned forty years of Supreme Court precedent as far as union fees. So can we take their saying they're going to follow precedent with more than a grain of salt, Well,

of course, not right. And when they say that they will follow precedent, they don't really mean they will follow it. They mean they will respect it as precedent. And you know, Brown versus Board of Education overruled plus e versus ferguson a precedent and properly so. So not every precedent has to be adhered to. I can think of several that I would like to see overruled that never should have been decided in the first place. Um, they are still precedents.

They are entitled to some degree of respect um. And that's all the more that Kavanaugh means to indicate, which is to indicate nothing. So he was both a politician and a judge. Do you think his politician side is showing more or his judicial side? Right, So he's clearly

spinning um. And now he's acting as his own client and spinning to assure the Senate and really not the Senate, but playing beyond them to the cameras to assure the public that really there's nothing to see here but his time as a politician, as a really as a political operative in the White House for President George W. Bush.

There's a lot back there that's really troubling. Right. You think back to the Bush administration's warrantless surveillance program, You think of the torture regime, You think of all the ways in which that administration sort of waged war on the rule of law and the idea that law could constrain the president. Um. And that's what's hiding behind all

of these kind of saccharin answers that he's giving. And though that issue and those questions are probably in the documents that the Democrats have not been able to get WHI else with WHI else withhold them right, there's something

being hidden. We don't know what it is, but we know that something is being hidden, and there's every reason to suspect it's We saw a Senator Lahy today trying to get at some of the issues that came up in his last confirmation hearing, and he was searching for some kind of email and it didn't seem to have it. And do you think he'll be able to get that and we'll hear more about that? Or is that a

dead end unless the public demands it. It's a dead end because they don't need they don't need Lay's vote. They don't even care about Lay's vote. The public demands it. You say there there are protests. I've never seen protests like this at a Supreme Court hearing. Because they stopped the hearing several times yesterday and they stopped it again today. Do those protests matter? Do they even get him off his game? They don't seem to get him off this game.

I think he's well prepared for them. If he wasn't yesterday, he certainly knew what was coming when he came in today. So I don't think they have they have that kind of act. The question is how do they play among the public. Generally, and I'm afraid I think they tend to make Kevina'll look sort of hectored and sympathetic. So if you were on the committee and you were able to ask a question, what question would you ask that you think might actually reveal something? Right? There is no

question that well, there is no magic question. If I if I could formulate one, I would have and the Senate would have asked it. They have very smart people working on these hearings. The problem is the format allows for the witness to give anodyne answers and essentially filipbuster and run out the clock. And so there is no question that you can ask that will that will reveal what Kavanaugh thinks. Um, if you go back to his writings,

it's quite clear what he thinks. He thinks the president holds expansive power and that Congress is virtually incapable of doing anything meaningful to limit the president or to require the president to comply with the rule of law. And what he mentioned he said that he considers the Nixon case to be one of the greatest Supreme Court cases. What did you make of that? So what he said in that case is it's a great example of the Court standing up to the president right of the judiciary

asserting itself and of judicial independence. He did not embrace the substance of that opinion, not in any way. And in fact, he has in comments quite clearly um challenged and disagreed with the ruling in that case. So then the best way to view his what he'll be like on the Supreme Court is to look at his opinions absolutely. And what do they tell you about Roe Vie Wade. Well, they don't really tell us very much of anything about roversus way um, other than that he's not sympathetic to

its fundamental holding. And so I think what that tells us is, at the very least, he will find regulations that states adopt as not imposing an undue burden on a woman's right to choose, and therefore state laws like the laws Texas enacted a few years ago. I'm sorry, I have to stop here. Neil, thanks so much. That's Neil Kincock. He's a professor at the Georgia State University

and College of Law. A contentious hearing for President Trump Supreme Court nominee Brett Kavanaugh in its second day, Democratic senators tried to pin Kavanaugh down on issues such as abortion, gun rights, and presidential powers. Senator Patrick Leahy asked Kavanaugh whether the president has an absolute right to pardon himself. Here's his answer. The question of self pardons is something I've never analyzed. It's a question that I have not

and about. It's a question therefore, that's hypothetical question that I can't begin to answer in this context as a sitting judge and as a nominee to the Supreme Joining me is Justin Reid Walker, professor at the University of Louisville Brandis School of Law. Justin, did you learn anything new about Judge Kavanaugh from these questions this morning? You know, I think what Judge Kavanaugh said it was out there already.

He's written three d opinions from the bench for the past twelve years, and he's written multiple Law of the articles and some of the most prestigious journals in the country. So there are obviously some questions that he hasn't answered before today and that he can't answer for ethical reasons. But I think, you know, we don't have to guess too hard about what kind of judge he'll be on the Spring Court. He'll be the same kind of judge he's been for the past twelve years, which puts him

where on the Supreme Court. If you're looking at the Supreme Court on a spectrum from conservative to liberal, you know, I think that Judge Kavanaugh has something in common with everyone on the court. Uh. You know, he's replacing Justice Kennedy, and Justice Kennedy has been in the majority of every Supreme Court decision that has vindicated opinion by Judge Kavanaugh. That's happened thirteen times, which is a pretty unparalleled record

of vindication for a lower court judge. So there's a clear overlap there between you know, Judge Kavanaugh, Justice Kennedy, but also between Judge Kavanaugh and you know, other majorities of the Court. Some of those opinions have been unanimous. The most recent opinion vindicating a Judge Kavanaugh's case was written by Justice brier Uh in a criminal procedure case with Justice Briar and Judge Kavan are ruled for the

criminal defendant. And we're talking to a law school professor, Justin Reid Walker, So Justin what stood out to you most in this day of questioning? You know, I guess what stands out to me is that after a month or two of other people speaking for and about Judge Kavanaugh,

he's able to speak for himself. And I think that's great news for him, because the Judge Kavanaugh I worked with every day for years as clerk, and who also taught a class I took when I was in law school, is the Judge Kavanaugh who is unfailingly thoughtful, who approaches the law in a mainstream way, who's a real judge's judge. And uh, you know, the more Americans hear from him and learn about him, the more I think they're going

to like what they see. Well, since since you clerk with him, do you watch him and feel that this is the Judge Kavanaugh that you knew? Is he able to express himself as he did personally? Or is too much pressure? Oh? I don't think it's I don't think it's too much. It's too much pressure, you know, it's it's obviously difficult to express yourself over the shouting of

protesters who who are being arrested. But it seems like to a there's been a return to some of the civility, uh, both from the audience and from the questionnaires that we've seen in past confirmation hearing and Judge Kavanall had had an opportunity to explain a little bit about his background, a little bit about his twenty five years of public service, a bit about his wonderful family, and most importantly, a bit about his approach to the law, which is really

an approach that begins with an understanding of something. He told us in chambers that every case is a separation of power's case. Every case requires the judge to remember that the other Justin will have to stop you there. We'll talk to you again in the future. That's Justin Reid Walker, Professor at the University of Louisville Brandeis School 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 Brasso. This is Bloomberg Ye