Kavanaugh Hears First Oral Arguments on Supreme Court

junior justice. After a long and contentious confirmation process. At a White House ceremony last night, Kavanaugh promised to serve on the Court without animosity over the confirmation process. Mr President, thank you for the great honor of appointing me to serve as a Justice of the Supreme Court. Joining me is Greg Store Bloomberg new Supreme Court reporter who was there for those first oral arguments? Greg, I understand there

were lines outside the Court house this morning. What was it like inside the court for Kavanaugh's first oral arguments? You know, June, it was remarkably light. It was almost there was almost an error frivolity to the arguments. Um not especially huge cases they have to do with sentencing for gun crimes. Um, But there were plenty of jokes that the session started off with. Uh. Right before the argument, Justice Lena Kagan was was quietly joking with new Justice Kavanaugh.

And then later on in the argument, there was a moment where Justice Sonya so so Do Mayor appeared to playfully pinch Justice Neil gorsch Um to demonstrate a point a question she was asking about the reach of this federal statute. Uh. No disruptions in the courtroom. Uh no, No signs for those couple of hours that there had been this incredibly contentious fight. Do you believe that this was deliberate on the part of the justice? Is this very lightheartedness? I do it. It's hard for not to be.

And you know, certainly I mentioned Justice Kagan. She is somebody who's very much of coalition builder. She's somebody who cares off a lot about having good relations with with her colleagues, including the ones who don't agree with her, because she knows she might neither votes and in some cases, so it wasn't surprising to see her being very friendly

towards Justice Kavanaugh. And I think you know, all the members of the Court would like to be able to take a deep breath and and you know, stay out of this political fray and just focus on uh, you know, you know, going about business as normal. And that was essentially what they were trying to do today. Judge Kavanaugh was known as an act or, should say, Justice Kavanaugh was known as an active question or on the d C. Circuit Court of Appeals. Did he ask many questions today?

He did? Um, He asked, I believe a total of eight questions in the two one hour arguments. UM. In the first case, he asked questions of both sides. In the second case, just asking questions of the lawyer for the defendant. In the case, Um, he was focusing, among other things, on a key precedent about the reach of this federal law. In the first case, asking both sides, how do you square your argument with what we said

and what the Supreme Court said in this case? Uh. He had definitely done his homework before the argument talking about President Okay, no tell us about his duties as the junior justice. Yeah, So, as you mentioned, he saits at the far end of the bench. Everything at the Supreme Court is done on the basis of seniority. He's the most junior, so he's sitting in the most junior spot on the bench. They're going to have a private conference later this week where they'll talk about pending cases.

When they talk about a case, he'll be the last justice to speak uh in that discussion. Uh. And then there's this duty that the junior justice always has when they're in that conference room and it's just the nine of them. When everybody comes to the door to deliver something or pick something up, Uh, it's the junior justice who has to get up out of his or her chair and answer the door. Um, and then you know, pass on to some other justice whatever was was delivered.

Justice Stephen Bryer had to do that for more than eleven years, and uh, Justice Kavana will we'll start doing it today. And Judge Neil Gorcich only had to do it for about a year. So there's no fairness there. Now, what cases are coming up that might draw more attention from the public and put more attention on Kavanaugh. Yes, So so this term that the cases they've granted are

almost uniformly pretty low profile things. One interesting case they have granted having scheduled an argument yet could be December is a case that could affect Donald Trump's pardening power in the reach of it. It has to do with the double jeopardy clause, and essentially what it could mean is that a Trump pardon would also knock out some state law crimes that that a person may have been involved in. UM So that's one to watch. And then later on in the term, maybe next year, the Court

could get back into the fray on partisan jurymandering. They could take up a case on federal job discrimination and whether the ban on job discrimination includes discrimin nation on the basis of sexual orientation. And they could have a case involving the DOCTA fight the UH the Obama policy that deferred deportation for some some young immigrants, and President Trump is trying to rescind that that's an issue they could could take up. And then of course there's a

Moler investigation. There are issues that could come from that that could be huge deals here at the Court early next year. At Princeton University last Friday, Justice is Elena Kagan and Sonya Soto Mayor admitted they're concerned about a public perception that the Court is being politicized. Will there be pressure on Kavanaugh to recuse himself in some of those cases that you mentioned that involved President Trump or things that might apply to possible impeachment proceedings. There certainly

will be pressure, but there's no requirement. Um. It's clear that Justice has has to recuse if if he or she has a financial interest in a case. But when we're talking about the appearance of a conflict because you may have said something in the past about an issue or a litigant, Justices had broad discretion and they rarely do recuse themselves themselves. So Ruth Bader Ginsburgh has not recused herself even though she called Donald Trump a faker.

She hasn't refused herself from any Trump related cases. Anton and Scalia didn't refuse in cases involved in a case involving Vice President Cheney, even though the two of them went hunting together. Uh. It's really really rare for a justice to recuse for that sort of a reason, and I would be very surprised if Justice Kavanaugh did either. Only thirty seconds here, Greg, I have one last question. Did Justice Roberts say anything? Was there any acknowledgment of Kavanaugh? Yes,

he acknowledged Justice Kavanaugh. He said, Uh, he wished him a long and happy career in our common calling, pretty much standard language he uses whenever somebody knew joins the courting. All right, thanks so much. That's Greg Store, Bloomberg News Supreme Court Rewarder. We're live from the Bloomberg Interactive Broker studio.

Over the summer, President Trump announced that White House counts old Don McGann would be stepping down from his role after the confirmation of Brett Kavanaugh to the Supreme Court. At the time, Trump speculated about what McGann might do next. He'll be moving on probably the private sector, maybe the private sector, and he'll do very well. But he's he's done an excellent Joel joining me is Alberto Gonzalez, former U s Attorney General and White House Council. He is

dean of the Belmont University School of Law. Thanks for joining us, Judge, Hello, how you doing okay? Well, let's start with your assessment of the job Don McGann has done in the job that you once occupied when George W. Bush was president. I think my most measures, and only by the words of the President, he's done a good job. Although much of I have to tell you that much of the work of the council goes unnoticed, It's unspoken about, and most council would say, you know, I shouldn't be

in the news the work of the council. I'm like the work of the Attorney General generally your staffer, and that the publicity and the good works of the president come first, and the things that you do generally are not publicized. But I think as a general matter, Domagann is praised primarily for his work in getting the president's nominees confirmed, uh, not only to the Supreme Court, but also to the lower courts, and I think that will

see meant President Trump's legacy police several generations. He is seen as one of the architects of Trump's success in

that area. I want to go into just a little bit about the Brett Kavanaugh confirmation because, according to The New York Times, McGann made sure that some relevant questions were not explored in the FBI investigation of Brett Kavanaugh, and because of quote, potentially disastrous for Kavanaugh's chances of confirmation was that outside his legal authority as White House counsel, No, it would have been perfectly appropriate for the White House.

As a general matter, would come through the White House Council to um give parameters to the FBI in terms of the breadth of their examination. Otherwise, you know, but if you're operating under a strict time frame, So I would say no. Now, there obviously can be political consequences to giving that kind of direction. And I don't know exactly what happened, what was said, what the direction was.

But obviously some of the political opponents might claim that the direction given by the White House made it would have made it more difficult to uncover anything that would have been negative about Brett Kavanaugh. But after whether or not that happened and who was ultimately responsible, you know, I just have no idea. Turning now to Robert Mueller's investigation, McGan met with Special Council Robert Mueller's team for some thirty hours in the Russia investigation, which caused more of

a rift with Trump. Was he required to do so and were there any restrictions on what he could say? Uh? Was he required? I would say probably required. Uh, if you're talking about personal conduct, uh, personal wrongdoing by the president. Yes, Don McGann. Don McGann is not the lawyer for Donald Trump. Don McGann as a government lawyer, and therefore, yes, he would be expected to come to cooperate with the special prosecutor.

When I was a White House counsel, we had an investigation connection with the Valerie Playm investigation, and I told President Bush I was not his lawyer. I helped him get a private lawyer, and when I was asked by the Special Counsel Pat fiss Gerald to provide information, I voluntarily, you know, sat before the grand jury again because I don't represent I don't the Council does not represent the

president and your government lawyer. As a government lawyer, you have an obligation to cooperate fully with investigation by the Department of Justice. Trump has indicated several times that he sees the FBI and the Justice Department as working for him. Do you think he understands the concepts of no attorney client privilege when he's talking to Don McGann. I don't know whether or not he understands that he understands the

limits of privilege. Obviously, he's not a lawyer. One of the first things that I did when I became White House Council uh in dealing with a non lawyer President and George every bushes. We would have these kind of conversations about about legal issues, the legal authorities of the president, legal protections of the president. We talked about the kind of you know, judicial philosophy, uh that he might think

about in connection with making an appointment. So one of the responsibilities I think of a White House council a good one, is to have these kind of conversations with the president as an initial matter, so that there's no misunderstanding about the scope of privilege or protections that a president might have with respect to his both official and unofficial conducts. Can you explain as White House count So at some points you may be giving advice that the

president doesn't want to hear. Do you have to keep a certain good working relationship with the president or or you know you should leave the post. Well, obviously a good working relationship is important. It makes you more effective. But you have an obligation to be truthful and and

uh be complete in your advice to the president. And yes, there are times when I had to say, as president, that's you know, we don't believe you have a legal authority to do this now as a as a legal matter, as a constitutional matter, the president's head of the executive branch, can override the advice of the Council, can override the bos the Astorney General, and make a decision as what is a legal position for the for the executive branch. Now,

there are serious political consequences in doing so. As a general matter, you want the President of States following the advice of the Council and certainly following the advice of the Attorney General, because it is when when that decision is made by the President and that decision is challenge, it will be the Attorney General and the Department of Justice that defends the present's actions in the court. All right, thank you so much for joining us on this show. Judge.

That's Alberto Gonzalez, former US Attorney General and White House Council. He is now Dean of the Belmont University School of Law. 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 Brosso. This is Bloomberg Ye