Kavanaugh Faces Senate Protests in Day one of Hearings

this morning. Speaking with ABC's This Week, Wisconsin Republican Senator Ron Johnson dismissed democratic concerns. Democrats have more enough information to understand that this is a highly qualified jurist that should be the next Supreme Court justice. In an earlier time, thirty years ago, he would have passed unanimously. It's unfortunate that Ted Kennedy began this process of very divisive confirmation battles for the Supreme Court joining us as justin excuse

me joining us as justin? Driver professor with the University of Chicago Law School and author of the Schoolhouse Gate, Public Education, the Supreme Court and the Battle for the American mind. Justin let's start with the Democrats attempts to put off the hearing because of they say, there's a hundred thousand documents withheld on the doctrine of executive privilege, and forty two thousand were released last night, which the

which only have the which only the committee has access to. Yes, this is quite a remarkable scene that unfolded in the United States Senate today where Democratic senators were saying that we need to postpone this. Uh, and including a number of protesters, were getting up. And I think that's attributable to the sense that this is a momentous nomination to

the Supreme Court. And Uh. The Republicans counter, of course, with respect to the documents, and say that this nominee has released more doctor events then the last five nominees to the Supreme Court combined. But that is indicative of exactly how long a paper trail Judge Kavanaugh has behind him. So he just listened to the senators making their opening statements.

Did you hear anything that struck you, anything unusual? Or was it in the mold of what you expect the Democrats to say and what you expect Republicans to say? You know, I think that some of the most remarkable utterances in the Senate chamber today came not from people who were miked, but instead the protesters who were there.

There were a number of women who were in and around the Senate dressed up in costumes from the Handmaiden's tail and I was watching the hearings and I heard a number of women get up and Protestant have to be physically removed, and the you know, the main reason for those protests, as far as I could discern, was they believe that a Justice Kavanaugh would be the fifth

vote to overturn ROVERSUS Wade and women's reproductive rights. Looking at his past opinions, and particularly there is an opinion that's mentioned about a young girl seeking an abortion who was in custody of immigration officials. What's your opinion of whether he is at fifth vote? Uh? My sense is that Justice Kavanaugh, if he's confirmed, would be the fifth vote to roll back roversus Wade. UM. It's not to say that that would happen all in one fell swoop,

but one could imagine uh in erosion. Over time, Judge Kavanaugh has gone out of his way UM, including UH in statements not on the bench to praise a dissent in ro versus Wade, and he suggested that this brought the Supreme Court into terrain that it did not belong. That's a highly unusual statement. So I don't think that people should be surprised at all if Judge Kavanaugh ends up being the fifth vote on on getting rid of

ro versus Wade. Yeah. Justin he reportedly told Senator Susan Collins, Republican from Maine, who has looked at by Democrats as a possible vote against him, that he saw Roe v. Wade as quote settled law. Does that tell you anything about his opinions about Roe v. Wade or what he might do in the future. It tells you nothing. What's soever, It is settled law until it becomes unsettled law. And uh, you know that's not a guarantee of anything going forward.

That is a uh statement about what currently exists, rather than on what he would do. So, uh, you know, people have been making these statements without subtle law. But obviously, uh, Supreme Court justices are not, uh you know, duty bound to here to precedent no matter what. And the Roberts Court recently got rid of a major labor law in the form of the Janus opinion dealing with union sees, and so there's no guarantee that today's law will be

good tomorrow. What other legal areas do you see Kavanaugh having an impact on the Court's rulings. Yeah, Well, it's important to keep in mind who Judge Kavanaugh would be replacing, and that of course is his former boss. It's got this Anthony Kennedy, and to think about how their years may depart. There are two that spring to mind. The

first deals with affirmative action, race conscious admissions practices. UH Justice Kennedy was an improbable savior of affirmative action in the UH Fisher case most recently, and looking at Judge Kavanaugh's extracurricular writings, it seems to me that he is a skeptic of affirmative action. And there are several cases that are making their way through the lower courts right now that our challenges to affirmtive action, and so that

UH could those days could be numbered. The second area that I identified that Kavanaugh's vote could be controlling and moved the Court in a conservative direction would be with respect to religion in public schools. UH Justice Kennedy UM authored an important opinion UH keeping religion out of public schools, and UH Judge Kavanaugh has filed an amicus brief saying that he thinks there should be greater ability for there

to be religion in public schools. So those are two hot button issue us that could very well move in a conservative direction if Judge Kavanaugh is confirmed. Justin he has been going through herings and murder boards to try to get him ready for these For these particular questions by the Democratic senators, is there any way that they can get an answer to questions that previous UH Supreme

Court nominees have refused to answer? So I the tradition is that not very much of consequence happens during UH these events. There are some occasional moments of surprise, and

they need not come incidentally UH from hostile questioners. The Judge Bourke was nominated to the Supreme Court in and one of his UH less good moments was when he was asked by a friendly senator, why do you want to be on the Supreme Court and his response was, well, I think it would be an intellect tool feast UH, and this was regarded understandably as being out of touch with the American public and ordinary people on the way that law as sects their lives. So h, thank you

so much, Justin. We've run out of time. Appreciate your implications there. Justin Driver, professor at the University of Chicago Law School. Democrats have complained about hidden documents and Brett Kavanaugh Supreme Court confirmation hearings, but the White House and Republican lawmakers remained confident that Kavanaugh will be approved by the Senate. Speaking with Fox News Sunday, Senator Lindsey Graham said the Appeals Court judge will likely even gain some

Democratic support if he does well at the hearing. He will get My belief is fifty five or higher if he does well, and I'm sure he will do will joining us as Greg Store, Bloomberg News Supreme Court reporter, Well, Greg, if the Democrats do what they did this morning, it seems likely that this will go through rather quickly. It does. Chuck Grasslely, the committee chairman, seem as if he's going

to hold them to a tight timeline. Well, he's he's uh giving Democrats a little bit of latitude to complain about the process. So for the first hour this morning. Uh. Democrats repeatedly interrupted the chairman UH as he was trying to proceed with the hearing to complain about not receiving all those documents. So UH, Senator grassly said, I'm basically said, I'm gonna hear you out, but then we're gonna move on. Now they have moved on to the opening statements, and

and the hearings moving more quickly. Yes, he said, he said, I believe he said something the effect that's easier for me to just listen to you than to than to stop you from from talking. So just talk. And then he ruled the way we knew he would rule in the beginning. So, now, did you have you heard anything in the opening statements that surprised you in any way? Now, so much of this is predictable, predictable, and maybe all

of it is predictable. Uh. Democrats, in addition to the documents, are complaining substantively about things like they're are worried that that Roe v. Wade will be overturned. They're talking about the Muller investigation. Uh, in the prospect that a Justice Kavanaugh would help shield President Trump. They're talking about his record on on regulatory issues. Siding with business interests. These are all areas that they they foreshadowed would would be

of interest to them. Now we know that they're going to ask about Roe v. Wade. That's the you know, the main area where it seems that they're going to focus. What other areas might they be focusing on? Well? Uh, Senator white House just finished his opening statement, and he spent a lot of time talking about not just a Brett Kavanaugh, but the Roberts Court and its record UH inciding with corporate interests. He talked about the Citizens United

campaign finance decision. UH, he talked about UH allowing companies to enforce arbitration agreements. So this will be not just a discussion of Judge Kavanaugh's record and what he would bring to the court, as a discussion of where the court already is. So greg when you saw Kavanaughs the preview of his statement, his opening statement, did it remind you of another Supreme Court justice? Yeah? It was certainly remarkable that he used the umpire metaphor that now Chief

Justice John Roberts famously used in his confirmation hearing. UH. That that has drawn a lot of criticism from people who don't agree with him in a lot of a lot of subjects. Um, you know, because the argument goes uh, you know, sometimes it's it's not a clear cut case of being a ball and strike or a ball or strike. Sometimes you have to use your judgment. Uh. And and Democrats are questioning the judgment of the people that Republican presidents are putting on the court. Is there any indication

that any of the Republican votes are wavering at all? No, none whatsoever, especially that in the committee. The Republicans on the Committee are very solid. They see Judge Kavanaugh as both being highly qualified in somebody who's committed to uh, looking at the law as it's written, not as he would want it to be. The Republicans we've been watching throughout this process are folks like Senator Susan Collins, who

is in favor of abortion rights. But she has said that in her private conversation with with Judge Kavanaugh that he told her he views Rovie Wade as settled precedent, a settled precedent of the Supreme Court. And she suggested that for her that's good enough. Alright, Well, we know that settled precedent means that it's settled until it's overturned by the Supreme Court, as we know from Judge Gorstch who joined the majority last year in overturning the settled

precedent in union cases. So let's talk about some of what we may hear from the Democrats. Will will we hear direct attacks on his opinions because he has a lot of opinions that that show that he is of a conservative bent. Yeah, there certainly will be. And and really for Democrats, they have, even though they're complaining about not receiving more material, they have a huge amount of stuff in the have to decide what lines of attacks

are going to they're going to use. Um. Certainly, as a judge on the Federal Appeals Court here in d C. He has handled a huge number of regulatory cases, and his record there is generally to limit what ages agencies can do, limit their ability to regulate the environment and regulate the internet. Uh, that will be a prime area

of attack. And certainly Roevie Wade will be something that will come up over and over again because Justice Kennedy, who has now left the Court was indeed the fifth vote UM that was clearly on the side of abortion rights. Right now, if if Judge Kavanaugh was confirmed. Roevie Wade will be in some jeopardy and executive power is going to come into play here. What is his opinion his latest opinion on executive power, because he seemed to have

bounced around a little. Yeah, it will be very interesting to hear him discuss that. So you have executive power costal services coming up with you know, an expiration of contracts, so there was going to be a renewal of contacts coming up, and all you know is the president uh, you know, able to basically squash the Mueller probe, for example, squash the U. S Attorneys probe uh into into Michael Cohen. Uh. In those questions of kind of presidential immunity from investigations,

those two subjects are uh somewhat closely linked. UM on both of those, well, on the latter one. Brett Kavanaugh has said a number of things over the years. His position has clearly evolved over his twenty year career, UM, and it will be interesting to hear whether he will say anything that sheds light light on how he might rule if an issue involving an investigation of President Trump comes before the Supreme Court. I think that some of the centers are even going to ask him to recuse himself.

Would he recuse himself in advance? And we know what the answer to that will be. Thank you so much, Greg. That's Greg Store, Bloomberg News Supreme Court reporter. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Grasso. This is Bloomberg