00:00:00
senators has Thank You mr. chairman we
00:00:03
need to get to judge Kavanaugh but I
00:00:05
really want to riff with Amy for a while
00:00:06
she senator Klobuchar you did Madison
00:00:10
lin-manuel Miranda the magna carta and
00:00:13
your dad well done
00:00:15
you were I had all that on my bingo card
00:00:17
I have I have little kids and I've taken
00:00:20
my two little girls to court a few times
00:00:21
too mostly to juvie just to scare him
00:00:23
straight not to turn him into attorneys
00:00:25
but Chloe said that that wasn't what my
00:00:28
dad was doing so that I was wisdom in
00:00:31
Minnesota
00:00:32
congratulations judge on your nomination
00:00:35
Ashley congratulations and condolences
00:00:38
this process has to stink I'm glad your
00:00:41
daughters could get out of the room and
00:00:43
I hope they still get the free day from
00:00:44
school let's do some good news bad news
00:00:47
the bad news first
00:00:49
judge sent your nomination in July
00:00:52
you've been accused of hating women
00:00:55
hating children hating clean air wanting
00:00:58
dirty water
00:00:59
you've been declared a quote/unquote
00:01:02
existential threat to our nation
00:01:05
alumni of Yale Law School and sense that
00:01:08
faculty met our members at your alma
00:01:10
mater praised your selection wrote a
00:01:12
public letter to the school saying quote
00:01:14
people will die if Brett Cavanaugh has
00:01:17
confirmed this drivel is patently absurd
00:01:20
and I worried that we're gonna hear more
00:01:23
of it over the next few days but the
00:01:25
good news is it is absurd and the
00:01:28
American people don't believe any of it
00:01:30
this stuff isn't about Brett Kavanaugh
00:01:33
when screamers say this stuff for cable
00:01:35
TV news the people who know you better
00:01:37
not those who are trying to get on TV
00:01:39
they tell a completely different story
00:01:42
about who Brett Kavanaugh is you've
00:01:43
earned high praise from the many lawyers
00:01:45
both right and left who've appeared
00:01:47
before you during your 12 years on the
00:01:49
DC Circuit and those who have had you as
00:01:51
a professor at Yale Law and at Harvard
00:01:53
Law people in legal circles invariably
00:01:56
applaud your mind your work your
00:01:58
temperament your collegiality that's who
00:02:00
brought Cavanaugh s and to quote Lisa
00:02:02
Blatt a Supreme Court attorney from the
00:02:04
left who's known you for a decade quote
00:02:06
sometimes the superstar is just a
00:02:08
superstar and that's the case with this
00:02:10
judge the Senate could should confirm
00:02:12
him close close
00:02:13
it's pretty obvious to most people going
00:02:15
about their work today that the deranged
00:02:17
comments actually don't have anything to
00:02:19
do with you so we should figure out why
00:02:21
do we talk like this about Supreme Court
00:02:23
nominations now there's a bunch that's
00:02:26
atypical in the last 19 20 months in
00:02:28
America senator Klobuchar is right the
00:02:30
comments from the White House yesterday
00:02:32
about trying to politicize the
00:02:34
Department of Justice they were wrong
00:02:35
and they should be condemned and my
00:02:37
guess is Brett Kavanaugh would condemn
00:02:38
them but really the reason these
00:02:41
hearings don't work is not because of
00:02:43
Donald Trump it's not because of
00:02:44
anything the last 20 months these
00:02:46
confirmation hearings haven't worked for
00:02:48
31 years in America people are gonna
00:02:50
pretend that Americans have no
00:02:52
historical memory and supposedly there
00:02:54
haven't been screaming protesters saying
00:02:56
women are gonna die at every hearing for
00:02:58
decades but this has been happening
00:03:00
since Robert Bork this is a 31 year
00:03:02
tradition there's nothing really new the
00:03:04
last 18 months so the fact that the
00:03:08
hysteria has nothing to do with you
00:03:10
means that we should ask what's the
00:03:11
hysteria coming from the hysteria around
00:03:14
Supreme Court confirmation hearings is
00:03:16
coming from the fact that we have a
00:03:18
fundamental misunderstanding of the role
00:03:20
of the Supreme Court in American life
00:03:22
now our political commentary talks about
00:03:25
the Supreme Court like there are people
00:03:26
wearing red and blue jerseys that's a
00:03:29
really dangerous thing and by the way if
00:03:31
they have red and blue jerseys I would
00:03:33
welcome my colleagues to introduce the
00:03:34
legislation that ends lifetime tenure
00:03:36
for the judiciary because if they're
00:03:38
just politicians then the people should
00:03:41
have power and they shouldn't have
00:03:42
lifetime appointments so until you
00:03:44
introduce that legislation I don't
00:03:45
believe you really want the Supreme
00:03:48
Court to be a politicized body though
00:03:50
that's the way we constantly talk about
00:03:51
it now we can and we should do better
00:03:54
than this it's predictable that every
00:03:56
confirmation hearing now is going to be
00:03:58
overblown politicized circus and it's
00:04:01
because we've accepted a new theory
00:04:02
about how our three branches of
00:04:04
government should work and in particular
00:04:06
how the judiciary should work what
00:04:08
Supreme Court confirmation hearing
00:04:09
should be about is an opportunity to go
00:04:11
back and do Schoolhouse Rock civics for
00:04:13
our kids we should be talking about how
00:04:15
a bill becomes a law and what the job of
00:04:17
article two is and what the job of
00:04:19
article three is so let's try just a
00:04:21
little bit how did we get here and how
00:04:24
can we fix it I want to make just four
00:04:25
brief points
00:04:26
number one in our system the legislative
00:04:29
branch is supposed to be the center of
00:04:31
our politics number two it's not why not
00:04:35
because for the last century and
00:04:37
increasing by the decade right now more
00:04:40
and more legislative authority is
00:04:42
delegated to the executive branch every
00:04:45
year both parties do it the legislature
00:04:47
is impotent
00:04:49
the legislature is weak and most people
00:04:51
here want their jobs more than they
00:04:53
really want to do legislative work and
00:04:55
so they punt most of the work to the
00:04:56
next branch third consequence is that
00:04:59
this transfer of power means the people
00:05:01
yearn for a place where politics can
00:05:03
actually be done and when we don't do a
00:05:05
lot of big actual political debating
00:05:07
here we transfer it to the Supreme Court
00:05:09
and that's why the Supreme Court is
00:05:11
increasingly a substitute political
00:05:13
battleground in America it is not
00:05:15
healthy but it is what happens and it's
00:05:17
something that our founders wouldn't be
00:05:18
able to make any sense of and forth and
00:05:21
finally we badly need to restore the
00:05:24
proper duties and the balance of power
00:05:26
from our constitutional system so 0.1
00:05:29
the legislative branch is supposed to be
00:05:31
the locus of our politics properly
00:05:33
understood since we're here in this room
00:05:35
today because this is a Supreme Court
00:05:36
confirmation hearing we're tempted to
00:05:38
start with article 3 but really we need
00:05:40
the article 3 is the part of the
00:05:41
Constitution that sets up the judiciary
00:05:43
we really should be starting with
00:05:45
article 1 which is us what is the
00:05:47
Legislature's job the Constitution's
00:05:50
drafters began with the legislature
00:05:52
these are these are equal branches but
00:05:54
article 1 comes first for a reason and
00:05:56
that's because policymaking is supposed
00:05:59
to be done in the body that makes laws
00:06:01
that means that this is supposed to be
00:06:04
the institution dedicated to political
00:06:06
fights if we see lots and lots of
00:06:09
protests in front of the Supreme Court
00:06:10
that's a pretty good litmus test
00:06:12
barometer of the fact that our republic
00:06:14
isn't healthy because people shouldn't
00:06:16
be thinking they are protesting in front
00:06:18
of the Supreme Court
00:06:19
they should be protesting in front of
00:06:20
this body the legislature is designed to
00:06:24
be controversial noisy sometimes even
00:06:26
rowdy because making laws means we have
00:06:29
to hash out the reality that we don't
00:06:31
all agree government is about power
00:06:34
government is not just another word for
00:06:36
things we do together the reason we have
00:06:38
limited government in
00:06:39
erica is because we believe in freedom
00:06:41
we believe in Souls we believe in
00:06:43
persuasion we believe in love and those
00:06:46
things aren't done by power but the
00:06:48
government acts by power and since the
00:06:51
government acts by power we should be
00:06:52
reticent to use power and so it means
00:06:55
when you differ about power you have to
00:06:58
have a debate and this institution is
00:07:00
supposed to be dedicated to debate and
00:07:02
should be based on the premise that we
00:07:04
know since we don't all agree we should
00:07:06
try to constrain that power just a
00:07:08
little bit but then we should fight
00:07:09
about it and have a vote in front of the
00:07:11
American people and then what happens
00:07:13
the people get to decide whether they
00:07:15
want to hire us or fire us they don't
00:07:17
have to hire us again this body is the
00:07:20
political branch where policymaking
00:07:22
fight should happen and if we are the
00:07:26
easiest people to fire it means the only
00:07:28
way the people can maintain power in our
00:07:30
system is if almost all the politicized
00:07:33
decisions happen here not an article 2
00:07:35
or article 3 so that brings us to a
00:07:37
second point how do we get to a place
00:07:39
where the legislature decided to give
00:07:41
away its power we've been doing it for a
00:07:42
long time over the course of the last
00:07:44
century but especially since the 1930s
00:07:47
and then ramping up since the 1960s a
00:07:49
whole lot of the responsibility in this
00:07:51
body has been kicked to a bunch of
00:07:54
alphabet-soup bureaucracies all the
00:07:57
acronyms that people know about their
00:07:58
government or don't know about their
00:08:01
government are the places where most
00:08:03
actual policy-making kind of in a way
00:08:06
lawmaking is happening right now this is
00:08:08
not what Schoolhouse Rock says there's
00:08:11
no verse of schoolhouse rock that says
00:08:13
give a whole bunch of power to the
00:08:15
alphabet-soup agencies and let them
00:08:17
decide what the governance decision
00:08:18
should be for the people because the
00:08:20
people don't have any way to fire the
00:08:21
bureaucrats and so what we mostly do
00:08:24
around this body is not pass laws what
00:08:27
we mostly do is decide to give
00:08:28
permission to the secretary or the
00:08:30
administrator of bureaucracy X Y or Z to
00:08:34
make law like regulations that's mostly
00:08:36
what we do here we go home and we
00:08:38
pretend we make laws no we don't we
00:08:40
write giant pieces of legislation 1200
00:08:43
pages 1500 pages long that people
00:08:45
haven't read filled with all these terms
00:08:47
that are undefined and we say the
00:08:49
secretary of such-and-such shall
00:08:51
promulgate rules that do the rest of our
00:08:53
jobs that's why there's so many fights
00:08:56
about the executive branch and about the
00:08:58
judiciary because this body rarely
00:09:00
finishes its work and the house is even
00:09:02
worse I don't really believe that it
00:09:04
just seemed like it you needed to try to
00:09:06
unite us in some way so I admit that
00:09:09
there are rational arguments that one
00:09:11
could make for this new system the
00:09:13
Congress can't manage all the
00:09:15
nitty-gritty details of everything about
00:09:17
modern government and this system tries
00:09:19
to give power and control to experts in
00:09:21
their fields where most of us in
00:09:23
Congress don't know much of anything or
00:09:25
about technical matters for sure but you
00:09:28
could also impute our wisdom if you want
00:09:30
but when you're talking about technicals
00:09:32
complicated matters it's true that the
00:09:34
Congress would have a hard time sorting
00:09:37
out every final dot and tittle about
00:09:39
every detail but the real reason at the
00:09:42
end of the day that this institution
00:09:44
punts most of its power to executive
00:09:46
branch agencies is because it's a
00:09:47
convenient way for legislators to have
00:09:50
to to be able to avoid taking
00:09:51
responsibility for controversial and
00:09:54
often unpopular decisions if people want
00:09:56
to get reelected over and over again and
00:09:58
that's your highest goal if your biggest
00:10:00
long-term thought around here is about
00:10:02
your own incumbency then actually giving
00:10:04
away your power is a pretty good
00:10:05
strategy it's not a very good life but
00:10:07
it's a pretty good strategy for
00:10:08
incumbency and so at the end of the day
00:10:10
a lot of the power delegation that
00:10:13
happens from this branch is because the
00:10:15
Congress has decided to self neuter well
00:10:17
guess what the important the important
00:10:19
thing isn't whether or not that Congress
00:10:21
has lame jobs the important thing is
00:10:23
that when the Congress neuters itself
00:10:25
and gives power to an unaccountable
00:10:27
fourth branch of government it means the
00:10:29
people are cut out of the process
00:10:30
there's nobody in Nebraska there's
00:10:33
nobody in Minnesota or Delaware who
00:10:36
elected the deputy assistant
00:10:37
administrator of plant quarantine at the
00:10:39
USDA and yet if the deputy assistant
00:10:42
administrator of plant quarantine does
00:10:44
something to make Nebraskans lives
00:10:46
really difficult which happens to
00:10:48
farmers and ranchers in Nebraska who do
00:10:50
they protest to where do they go how do
00:10:52
they navigate the complexity and the
00:10:54
thicket of all the lobbyists in this
00:10:56
town to do executive agency lobbying
00:10:58
they can't and so what happens is they
00:11:01
don't have any ability to speak out and
00:11:03
to fire people through an election and
00:11:05
so ultimately when the Congress
00:11:07
is neutered when the administrative
00:11:09
state grows when there is this fourth
00:11:11
branch of government it makes it harder
00:11:13
and harder for the concerns of citizens
00:11:14
to be represented and articulated by
00:11:17
people that the people know that they
00:11:18
have power over all the power right now
00:11:21
are almost all the power right now
00:11:23
happens offstage and that leaves a lot
00:11:25
of people wondering who's looking out
00:11:27
for me and that brings us to the third
00:11:28
point the Supreme Court becomes our
00:11:31
substitute political battleground it's
00:11:33
only nine people you can know them you
00:11:36
can demonize them you can try to make
00:11:38
them messiahs but ultimately because
00:11:40
people can't navigate their way through
00:11:41
the bureaucracy they turn to the Supreme
00:11:44
Court looking for politics and knowing
00:11:46
that our elected officials no longer
00:11:48
care enough to do the hard work of
00:11:49
reasoning through the places where we
00:11:51
differ and deciding to shroud our power
00:11:53
at times it means that we look for nine
00:11:56
justices to be super legislators we look
00:11:59
for nine justices to try to right the
00:12:01
wrongs from other places in the process
00:12:03
when people talk about wanting to have
00:12:05
empathy from their justices this is what
00:12:08
they're talking about they're talking
00:12:09
about trying to make the justices do
00:12:11
something that the Congress refuses to
00:12:14
do as it constantly advocates its
00:12:16
responsibility the hyperventilating that
00:12:18
we see in this process and the way that
00:12:20
today's hearing started with 90 minutes
00:12:22
of theatrics that are pre-planned with
00:12:24
with certain members of the other side
00:12:26
here it shows us a system that is wildly
00:12:30
out of whack and thus a fourth and final
00:12:32
point the solution here is not to try to
00:12:35
find judges who will be policy makers
00:12:37
the solution is not to try to turn the
00:12:39
supreme court into an election battle
00:12:41
for TV the solution is to restore a
00:12:45
proper constitutional order with a
00:12:47
balance of powers we need schoolhouse
00:12:49
rock back we need a congress that rights
00:12:52
laws and then stands before the people
00:12:54
and suffers the consequences and gets to
00:12:56
go back to our own Mount Vernon if
00:12:57
that's what the electors decide we need
00:13:00
an executive branch that has a humble
00:13:01
view of its job as enforcing the law not
00:13:04
trying to write laws in the Congress's
00:13:06
absence and we needed a judiciary that
00:13:08
tries to apply written laws to facts and
00:13:10
cases that are actually before it this
00:13:13
is the elegant and the fair process that
00:13:15
the founders created it's the process
00:13:17
where the people who are elected two and
00:13:20
six years in this and
00:13:21
for years in the executive branch can be
00:13:24
fired because the justices and the
00:13:26
judges the men and women who serve
00:13:28
America's people by wearing black robes
00:13:30
they're insulated from politics
00:13:33
this is why we talked about an
00:13:34
independent judiciary this is why they
00:13:36
wear robes this is why we shouldn't talk
00:13:38
about Republican and Democratic judges
00:13:40
and justices this is why we say justice
00:13:43
is blind this is why we give judges
00:13:45
lifetime tenure and this is why this is
00:13:47
the last job interview Brett Kavanaugh
00:13:49
will ever have because he's going to a
00:13:52
job where he's not supposed to be a
00:13:54
super legislator so the question before
00:13:56
us today is not what is Brett Kavanaugh
00:13:58
think 11 years ago on some policy matter
00:14:01
the question before us is whether or not
00:14:03
he has the temperament and the character
00:14:05
to take his policy views in his
00:14:07
political preferences and put him in a
00:14:09
box marked irrelevant and set it aside
00:14:11
every morning when he puts on the black
00:14:13
robe the question is does he have the
00:14:15
character and temperament to do that if
00:14:17
you don't think he does vote no but if
00:14:19
you think he does stop the charades
00:14:21
because at the end of the day I think
00:14:23
all of us know that Brett Kavanaugh
00:14:25
understands his job isn't to reap
00:14:27
rewrite laws as he wishes they were he
00:14:30
understands that he's not being
00:14:31
interviewed to be a super legislator he
00:14:33
understands that his job isn't to seek
00:14:34
popularity his job is to be fair and
00:14:37
dispassionate it is not to exercise
00:14:40
empathy it is to follow written laws
00:14:42
contrary to the onion like smears that
00:14:45
we hear outside Judge Cavanaugh doesn't
00:14:47
hate women and children Dutch Kavanagh
00:14:49
doesn't lust after dirty water and
00:14:51
stinky air no looking at his record it
00:14:54
seems to me that what he actually
00:14:56
dislikes are legislators that are too
00:14:58
lazy and too risk averse to do our
00:15:00
actual jobs it seems to me that if you
00:15:02
read it's 300 plus opinions what his
00:15:05
opinions reveal to me is a
00:15:06
dissatisfaction I think he would argue a
00:15:08
constitutionally compelled
00:15:09
dissatisfaction with power-hungry
00:15:11
executive branch bureaucrats doing our
00:15:13
job when we fail to do it and in this
00:15:16
view I think he's aligned with the
00:15:18
founders for our Constitution places
00:15:20
power not in the hands of this city's
00:15:22
bureaucracy which can't be fired but our
00:15:25
Constitution places the policy-making
00:15:27
power in the 535 of our hands because
00:15:30
the voters can hire and fire us and if
00:15:33
the voters are going to retain their
00:15:34
they need a legislature that's
00:15:36
responsive to politics not a judiciary
00:15:38
that's responsive to politics it seems
00:15:40
to me that judge Kavanagh is ready to do
00:15:42
his job the question for us is whether
00:15:44
we're ready to do our job
00:15:45
Thank You mr. chairman
