WASHINGTON, DC – Sen. Chuck Grassley’s (R-IA) opening exchange with Judge Brett Kavanaugh on Wednesday covered judicial independence, wartime powers, the importance of precedent, and federalism, previewing issues that would arise repeatedly over the next two days of questioning with the members of the Senate Judiciary Committee as they consider his fitness for the Supreme Court.
“What makes a judge a good one, and what influences in your life have shaped your vision of how a judge should go about doing his job?” Grassley began.
Kavanaugh answered that “the first quality of a good judge in our constitutional system is independence; independence comes directly from Article III of the Constitution.” He added that this independence is guaranteed by federal judges’ lifetime appointments, making judges “independent and immune from political or public pressure.”
The judge went on to cite several famous cases where the Supreme Court showed the courage to do what the Constitution required, against popular pressure. He discussed Brown v. Board of Education, where the Court struck down racially segregated schools; Youngstown, where the Court struck down President Harry Truman’s seizing control of steel mills during wartime; and United States v. Nixon, where the Supreme Court ruled that the Constitution does not shield a president from turning over audiotape evidence when subpoenaed in a criminal investigation.
Nixon was unanimous, and he added that “those great moments of independence and unanimity are important.”
Turning to a new topic, Grassley said, “your views of presidential authority would not allow any meaningful check on the president, particularly this one,” and he asked Kavanaugh to explain “what judicial independence means to you.”
“No one is above the law in our constitutional system,” Kavanaugh answered, citing The Federalist No. 69, where Alexander Hamilton explained ways that the U.S. president is different from a king. “Under our system of government, the executive branch is subject to the law, subject to the court system,” Kavanaugh said.
“So, too, we as judges are separate from the Congress,” he continued. “We’re not supposed to be influenced by political pressure from the executive or from the Congress.”
The nominee also cited Youngstown as an example of independence. “It’s a 6-3 decision where the Supreme Court rules that President Truman has violated the law by seizing the steel mills.”
“Now, this is a time of war, a time of war where lots of Americans were killed,” he added, referring to the steel mills of the nation Truman ordered to be conscripted into government service. He added that ruling against the president on an emergency basis was “a moment of judicial independence.”
Asked for an example of his voting against the president who appointed him to the judgeship he currently holds, Kavanaugh cited the Hamdan decision.
“Hamdan is one of bin Laden’s associates involved before September 11th — worst attack ever on American soil,” he began:
He’s prosecuted before a military commission — signature prosecution of the Bush administration. Comes to the D.C. Circuit. I’m on the panel. I write the opinion, saying that his military commission prosecution is unconstitutional. [It violates] ex post facto principles. You’ll never have a nominee who has ruled for a more unpopular defendant than ruling for Salim Hamdan. Why did I rule for someone who had been involved in September 11? Because the law compelled it, as Justice Kennedy showed us in the Texas v. Johnson case.
(Kavanaugh discussed elsewhere during the hearings that the Johnson case was where the Supreme Court held that a state law forbidding the burning of the American flag violated the First Amendment.)
“We don’t make decisions based on who people are or their policy preferences or the moments,” Kavanaugh explained. “We base decisions on the law.”
“I’m not a pro-plaintiff or a pro-defense judge, not a pro-prosecution or a pro-defense judge,” he said, quoting his opening statement from Tuesday. “I’m a pro-law judge. And I’ve ruled for parties based on whether they have the law on their side. That’s part of being an independent judge.”
“If you walk into my courtroom, and you have the better legal arguments, you will win,” he concluded.
Continuing to discuss whether Kavanaugh would be independent as a justice, Grassley asked, “Did anyone ask you to make any promises or assurances at all about the way that you would rule in certain cases?”
“No,” Kavanaugh replied.
“Were you asked about your views on Roe v. Wade?” the chairman asked as a follow-up.
“No,” the judge answered again.
Turning to limits on federal power, Grassley raised the concept of federalism, asking, “Have you ever written any decisions where you, you used the Tenth Amendment? I’m talking about division of powers between federal and states?”
“Most of the cases that come to the D.C. Circuit are at the national level and, therefore, involve questions of separation of powers between the legislative, executive, and judicial barrages,” Kavanaugh began. “Of course federalism is a critical part of our constitutional structure as well, the genius of our system, Federalist 39 is described by [former President James] Madison, is that we have both a national government and a federal government simultaneously.”
Kavanaugh went on to explain that, in some ways, the U.S. House represents the national aspect of government, while the Senate — where each state has two seats regardless of their population — embodies the federal aspect. He cited watershed Supreme Court cases like U.S. v. Lopez and U.S. v. Morrison, which “reinforce the idea that there’s a core of authority that is exclusively in the province of the states and beyond the scope of the federal government”:
The 10th Amendment reinforces the structure of federalism that’s in our constitutional system. It’s important to remember the role of our states in our constitutional systems, and it’s important to recognize as individual citizens — something we often forget, particularly in a process like this. Our rights and liberties are protected by the federal Constitution, and by the federal courts. But they’re also protected by state constitutions and state courts.
Grassley also spoke about courts’ “independence from the legislative branch,” asking Kavanaugh for his reaction and making the point that the nominee would be asked about “whether you believe various Supreme Court cases were correctly decided” because “senators are going to try to predict how you’ll rule in cases before you.”
The chairman told the judge such assurances would be improper. “Judges should never promise their future votes on the bench in exchange for a senator’s vote for them,” Grassley said because it would mean courts lack “independence from the legislative branch.”
“Politicians can make promises about how they’ll vote on issues, [but] judges, by their very nature of the job, should never promise any outcome,” Grassley insisted. By contrast, “if a nominee answers these questions, it threatens … judicial independence.”
Without discussing whether specific precedents were correctly decided, Grassley asked Kavanaugh to unpack his view of what force those precedents have in future cases.
“The role of precedent is to ensure stability in the law, which is critically important,” Kavanaugh began. “It’s also to ensure predictability of the law. People who order their affairs around judicial decisions, need to know that the law is predictable.”
“Whether you’re an individual or business or worker, you need to have predictability,” he continued. “People rely on the decisions of the courts, so reliance interests are critically important to consider … so that people can rely on the decisions.”
The judge continued:
Precedent also reinforces the impartiality and independence of the judiciary. The people need to know in this country that the judges are independent, and we’re not making decisions based on policy views. Part of that is to understand we’re following a system of precedent … the court, every time someone [new] gets on [the Court], it’s not just bouncing around to do what think is best. It’s what’s the precedent of the Supreme Court is always part of the analysis, an important part.
For 12 years, I’ve been applying precedent of the Supreme Court and of my court. Every day for 12 years, I haven’t been getting up saying, “How can I rewrite the law?” I’ve been getting up for 12 years every day, saying, “Okay, how can I apply this Fourth Amendment precedent to this fact pattern that comes before me?” So precedent is the foundation of our system. It’s part of the stability. It’s ensuring predictability. And it’s just foundational to the Constitution, as Article III [of the Constitution] and Federalist 78 made clear.
Grassley closed by reminding Kavanaugh to abide by the Ginsburg Rule — named after Justice Ruth Bader Ginsburg, who famously told the Senate that judicial nominees should give “no hint, no forecasts, no previews” of how he or she would decide any future case because that would deprive the parties, in that case, their right to an impartial and open-minded judge.
Announcing any such future vote as a judge “would display disdain to the entire judicial process,” Grassley concluded, quoting Ginsburg. Kavanaugh responded that he agreed with Justice Ginsburg.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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