Kavanaugh and Originalism

HUGH HEWITT: Morning glory, America. Bonjour, hi, Canada, from the ReliefFactor.com Studio inside the Beltway. That music is usually reserved for the last radio hour of the week and The Hillsdale Dialogue on Friday. But we have moved The Hillsdale Dialogue this week from Friday to Monday.

I called hurricane preparedness. Florence is going to hit Wilmington on Friday, and may hit DC. We may all be out of power inside the beltway.

But actually it's because Judge Kavanaugh's hearings concluded on Friday. I talked with Matt Spalding before they went on. I said let's get Dr. Larry Arnn, President of Hillsdale College, in to put a cap on this and underscore what we just saw and what is going to happen.

Because I think Judge Kavanaugh is going to be confirmed by the end of the month. Leader McConnell told me that on Thursday noon. Dr. Larry Arnn, good morning to you. Thanks for changing your schedule to join me today.

ARNN: Good morning. And can you call me Spartacus, please?

HEWITT: Oh no, I am Spartacus. You know, let's start there. It was a circus, right? The world's greatest deliberative body was performance art. What do you think that does to the country?

ARNN: Well, that's too bad, right?  Kavanaugh reminds you of John Roberts. He reminds me of Elena Kagan, Dean of Harvard Law School, Supreme Court nominee.

Very confident woman. Very well treated by the Senate Judiciary Committee. And the press, of course. Well, she was a liberal, and she was the Democratic nominee, and that tends to be how they're treated. But having said that, that's also how she should have been treated.

HEWITT: Yes.

ARNN: She's very smart, right? And she knows her stuff inside and out. And I, personally, don't agree with her constitutional positions. I believe that I could refute some of the worst of them. But that would be a tall order, because this is a serious woman.

And so he's like that, right? Often, in the hearings, he looked like the grownup in the room. And knew what he was there for, had thought about it all his life, was prepared to do the work. That's what that job interview looked like.

And then they had a show going on around him. You know, apparently they orchestrated people in the audience to stand up and shout certain things at certain times. And that's deliberative democracy, and the greatest deliberative body in the world, showing off in there.

HEWITT: It was. It was very profoundly disappointing. I also think it had an adverse effect on Spartacus, Senator Spartacus, from New Jersey. I think it had an adverse effect on almost everyone with the exception of Chris Coons and Amy Klobuchar, who asked serious, pointed questions about this.

But I want to go, before I play some audio for you, to the exchange you had with Mike Lee. Mike Lee said, "What are your favorite Federalist Papers?" Geeky question though that might be, appealing to, Dr. Larry Arnn, you and Matthew Spalding only, perhaps. And he said, "I have many children." And he named eight of them.

And he did so effortlessly. And it wasn't feigned. It wasn't one of those Jeopardy! questions, Larry Arnn. He actually reads these things.

ARNN: Yeah. Yeah, what's impressive to me about Kavanaugh and, let's say compare him to Gorsuch whom I also find very impressive-- Kavanaugh is a serious man. He's not just grim and serious. He's not that kind of serious.

But on the fundamental questions of his work, he likes to have an explanation. And if you look up quotes from him about what it is to be a judge, all of the ones you can find, going back as long as there are quotes, are just like the ones that he responded to the Senate with. The rule of law is-- I'm here to protect that. The Constitution, I'm here to protect that.

The independence of the court, the independent judiciary, is the crown jewel of the American political system. And he's been saying that stuff forever and ever. And I think that's because he was serious about working out how to go about his calling.

HEWITT: And that is important. If you determine upon a judicial life, early on you have to begin to work out these issues or you will be a bad judge. You will be a results-oriented judge as opposed to an umpire judge.

Here is one exchange with Senator Feinstein when they fence. And Brett Kavanaugh plays the Ginsburg card on the question of whether or not a President of the United States can be subpoenaed. Cut number 15.

DIANNE FEINSTEIN: Can a sitting president be required to respond to a subpoena?

BRETT KAVANAUGH: So that's a hypothetical question about what would be an elaboration or a difference from US v. Nixon's precise holding. And I think going with that Justice Ginsburg principle-- which is really not the Justice Ginsburg alone principle, it's everyone's principle on the current Supreme Court. And as a matter of Canons of Judicial Independence, I can't give you an answer on that hypothetical question.

FEINSTEIN: So--

HEWITT: So stop right there. Now, Larry Arnn, that's elegantly played. But because Dianne Feinstein did not listen closely to Mike Lee, she doesn't know that he cited Federalist 69, wherein Hamilton says that a president must be impeached, tried, and removed before he is subject to ordinary criminal processes.

She might have then, had she done any homework, been in a position to press him on this.

ARNN: Mm-hmm, that's right. See, there's this idea-- let me bring in something to this. He said at one point that a valid court order is binding on a president. And immediately what popped into my mind is the court order given by Roger Taney to Abraham Lincoln to let several Marylanders let go who were kept in a federal stockade.

And the marshals from the Supreme Court, they went to the White House, and the White House told them, "They're not here. They're at the fort." So they went to the fort, these marshals sent by the Chief Justice of the Supreme Court, said, "I've got a habeas corpus order for these people." He said, "Where are they? Hand them over." And the General, looking down from the top of the stockade, said, "How are you going to get this gate open?"

HEWITT: Ha!

So that was not a valid court order?

ARNN: Not in all cases, no.

HEWITT: OK. By the way, you've now mentioned Roger Taney in two of The Hillsdale Dialogues over three weeks, giving him more attention than he has deserved or received outside of Con law classes in the public square in probably 150 years.

He was the judge who wrote Dred Scott. And Dred Scott got dragged through these hearings like Plessy. And Dred Scott and Korematsu got dragged and dragged and dragged again. That was edifying, at least. Was it not?

ARNN: Mm-hmm. See, if we could recover some perspective here, they're not going to crucify anybody as part of these hearings.

The Dred Scott decision is the worst Supreme Court decision of them all, probably. Only the second time the Supreme Court struck down a statute in American history. The first time was Marbury v. Madison, so right in the middle of the Founding and getting into operation of the Constitution.

And this thing comes along 60 years later. And out of nowhere, Taney rules that the central platform of the newly-formed Republican Party-- that we will forbid slavery going into the federal territories as a way to stop it under the Constitution-- that that is unconstitutional.

And where he got that, God knows. I mean, his opinion says where he got it, but it's not there. And so that was, like, a major intervention into the politics of the day. The party of Abraham Lincoln was neutered. And the reason that happened, in my opinion, is so that the very great Abraham Lincoln could answer that about how to think about that.

And this, I will say, is something that was absent from these hearings and should be added in. It's not true that the Constitution of the United States is a technical document, and its meaning is fixed by the Supreme Court of the United States. And you couldn't find anybody in the Founding who would say that.

The reason is there are three co-equal branches of government. And the officers in them all take an oath to the Constitution. And they are required, by their oath, in the exercise of their powers, to have a understanding of the Constitution in their minds.

Now, the reason judges get powerful is because you have to start with the fact of how weak they are, right? Like, I'm imagining Donald Trump's up and at 'em this morning. He usually is.

HEWITT: Yeah, it's five tweets already. Yes.

ARNN: Yeah, you know, so he's rolling, right? And he's got to decide what he's going to do today. Things will come in, and they're a little unpredictable, but he'll have stuff he wanted to take the initiative.

In the judiciary, there's no initiative. They have to wait for a case to come to them. And the stuff that they'll be deciding tomorrow is all stuff that happened five years ago or something; It had worked to work its way up to the Court. So it's passive right? But--

HEWITT: It's supposed to be.

ARNN: --as regards to things that get to them, that's the end. They decide that. And nothing can change that.

HEWITT: And they are supposed to be passive. But sometimes they're not. And that's when we end up with trouble like Dred Scott. Stay tuned, America. The Hillsdale Dialogue is early, as we put a bow on the fact that Brett Kavanaugh is going to be Justice Kavanaugh by the end of the month. Don't go anywhere. Dr. Larry Arnn returns after this.

Welcome back, America. It's Hugh Hewitt. That music usually means it's Friday. But it means it's Monday today, a special edition of The Hillsdale Dialogue. All things Hillsdale are collected at Hillsdale.edu.

Dr. Larry Arnn is the president of that lantern of sweet reason and logic in Northern Michigan, or way up north. It's actually in southern Michigan. But once you get to Michigan, you're lost anyway. And he is joining me early this week because the Brett Kavanaugh hearings are over. The vote will occur in two weeks on the Committee, and three weeks in the Senate.

And I want to play for-- Dr. Arnn wrote The Founder's Key and understands the Constitution as well as anyone in the country-- one exchange between John Cornyn, Senator from Texas, former Texas Supreme Court Justice, and Brett Kavanaugh. You will like this a lot, I think. Cut number 13.

KAVANAUGH: Well, Brown v. Board of Education, of course, overturned Plessy. And Plessy was wrong the day it was decided. It was inconsistent with the text and meaning of the 14th Amendment, which guarantee the equal protection.

And the Supreme Court in the Strauder v. West Virginia case in 1880, jury selection case, had said, "What is this amendment but that the law shall be the same for the black and the white?"

And the Supreme Court, unfortunately, backtracked from that clear principle in the Plessy decision. And a horrific decision which allowed separate but equal. And then Brown v. Board corrected that in 1954, of course, corrected it on paper.

It's still decades, and we're still seeking to achieve racial equality. The long march for racial equality is not over.

But Brown v. Board, as I've said publicly many times before, the single greatest moment in Supreme Court history by, in so many ways, the unanimity that Chief Justice Warren achieved, which is just a great moment. The fact that it lived up to the text of the Equal Protection Clause. The fact that it understood the real-world consequences of segregation on the African-American students who were segregated into other schools and stamped with a badge of inferiority.

That moment in Brown v. Board of Education is so critical to remember. And the opinion is so inspirational. I encourage everyone to-- it's a relatively short opinion, but it's very powerful. It's very focused on the text of the Equal Protection Clause and correcting that awful precedent of Plessy v. Ferguson. A great example of leadership.

And just the last point I'll mention on process, they were-- they knew they were going to face popular backlash. They knew they were, but they still did it. So that shows independence and fortitude.

But they also had reargument, which I think is a good-- they had argument originally, and then decided there's a lot going on and maybe not everyone's seen it the same way, the Justices. And they had a reargument.

So it's a good lesson on process protecting us. And keep working at it, and keep working at it. And see the Team of Nine, that I mentioned yesterday and I mentioned today, keep working at it as a Team of Nine.

And they came out unanimous. Chief Justice Warren thankfully led the court in that decision. That was a great moment, the greatest moment in Supreme Court history.

HEWITT: Now, Dr. Larry Arnn-- back with Hugh Hewitt now-- it began with "Plessy was wrong the day it was decided. And it took 58 years to reverse it." What did you make of that answer?

ARNN: Well, so it's-- what? 1896 was Plessy, I think?

HEWITT: Yes.

ARNN: So after the Civil War-- and so the Civil War was a very bad thing. You know our story there. And the most costly war in American history. And then it presented these amazing constitutional questions. What are we going to do? Because these states are states, see? Our claim throughout, the Union's claim throughout the war was, you are states in the Federal Union.

So they're going to come back in as states. And then but on what terms? Well, the Civil War Amendments-- the 13th, no slavery. The 14th, privileges and immunities, equal protection of the law-- and the third one just came to me-- due process of law-- are applied to the states, that no state shall deny any citizen those three things which are the core of the Bill of Rights. And then the 15th Amendment, voting rights.

So the point is there's a reaction. And there's Jim Crow laws. And you know, this is very popularly based, right? And so Plessy v. Ferguson upheld those laws regarding railway carriages in Louisiana.

HEWITT: Hold on. We'll be right back with Dr. Larry Arnn. We're talking about Brett Kavanaugh who's certain to be the next Justice of the United States Supreme Court, on The Hugh Hewitt Show. Welcome back, America. It's Hugh Hewitt in the ReliefFactor.com Studio. The Hillsdale Dialogue moved forward this week from Friday to Monday in the aftermath of the conclusion of Judge Kavanaugh hearings.

I'm joined by Dr. Larry Arnn, President of Hillsdale College. All things Hillsdale are collected at Hillsdale.edu. And, of course, all of these dialogues dating back to 2013 are available for your binge listening, beginning with Homer and moving right through the greats, all up to the present day, are collected at HughforHillsdale.com.

I don't think anyone needs to hang around to be in the middle of a hurricane, Larry Arnn, do you?

ARNN: No, I know a couple of who people who have. They saved their house, but I thought, what a thing to die for.

HEWITT: I just would not die for a house. You can rebuild a house. Let's go back to Judge Kavanaugh, and talking, at this point, with Ted Cruz about religious liberty. Cut number 21.

KAVANAUGH: That was a group that was being forced to provide a certain kind of health coverage over their religious objection to their employees. And under the Religious Freedom Restoration Act, the question was first, was this a substantial burden on their religious exercise?

And it seemed to me, quite clearly, it was. It was a technical matter of filling out a form. In that case, they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were, as a religious matter, objected to.

The second question was, did the government have a compelling interest, nonetheless, in providing the coverage to the employees, and applying the governing Supreme Court precedent from Hobby Lobby? I said that the answer to that was yes, the government did have a compelling interest following Justice Kennedy's opinion. In Hobby Lobby said the government did have a compelling interest in ensuring access.

And then it came down to the "least restrictive means" prong of the Religious Freedom Restoration Act. And that prong of the Act, to my mind, is an opportunity to see is there a win-win in some respects. In other words, the government interest in ensuring health-care coverage, can that be provided without doing it on the backs of the religious objector? So that's what the Court's looking for. In that case, Professor Volokh has written about that.

And in that case, it seemed to me that the government had avenues to ensure that the coverage was provided without doing so on the backs of the religious objectors. And I so ruled following the Supreme Court precedent in Hobby Lobby, and in a subsequent case, Wheaton College, where they had an order that I followed and seemed to me to dictate the result that I identified in the Priests for Life dissent.

HEWITT: Now, the reason I bring this up, Larry Arnn, is because he cites abortion-inducing drugs. So bereft of argument is the Left, that they have seized on that phrase "abortion-inducing drugs," and that is how the plaintiffs described abortifacients which are morning-after pills. And there is a debate whether or not you want to call it an abortion-inducing drug, but that's what the plaintiffs called it.

That's their argument, that he doesn't understand birth control. I mean, how does anyone even hope to slow down a nominee when that's your argument?

ARNN: Yeah, and what he said there, by the way, was very delicate, and showed a disposition that you want in a judge. So he misused the term and, Lord, you know, he'll end up like Spartacus if he keeps doing that.

And so, what did he just say? He said, here's a dispute. The government has a purpose that it wants to pursue. And these people have some convictions that they do not want to violate. I wonder if there's a way, says the judge, that everybody can have what he wants.

And so, they ruled in that case that you need to find another way, if you want to-- you know? Nobody-- since Roe v. Wade, and since a whole string of court cases since, there's not going to be a blanket ban on abortion, right?

HEWITT: Correct.

ARNN: If not ever. And, well--

HEWITT: Correct.

ARNN: --for a long time, let's say. But in the meantime, what about people who feel like that that's a murder and don't want to participate in it? Well, there's ways to let them off from participating in it. And that's what he's looking for.

And but I think he'll be very careful, I think that it's a revolutionary situation that he and the Supreme Court faces, has for years been so. Because there's two long strings of precedent on most fundamental cases. One from the Founding until sometime after the 1950s, maybe, or '60s, and then one on from that.

And both of them are long. And they contradict each other in some ways. And so does respect for precedent mean you follow the most recent one? Or the original one? And they'll have to figure that out.

And a lot of these things society has been organized around now is a lot of these modern court opinions. And I don't think that this court will be likely to give sudden shocks in doing what I hope they'll do, which is show a steady preference for the older rather than the newer precedent.

HEWITT: I do believe that steady preference will emerge. I believe we might have one area of shock with regards to property rights and takings. Long neglected. And only since 1978, in the Penn Central decision, totally chaotic. And subsequently somewhat resurrected by Justice Scalia in a few cases that have not been paid much attention.

But Justice Kennedy was holding back the originalists on this in his Rapanos decision. And they have a couple of early cases on this. I am hopeful about that. But as to that delicate moment, one more exchange. This is on guns, with Senator Feinstein. Cut number 10.

KAVANAUGH: Senator, of course, the violence in the schools is something we all detest and want to do something about. And there are lots of efforts, I know, underway to make schools safer. I know in my girls' school they do a lot of things now that are different than they did just a few years ago in terms of trying to harden the school and make it safer for everyone.

Guns-- handguns and semiautomatic rifles-- are weapons used for hunting and self-defense. But, as you say, Senator, or you rightly say, they're used in a lot of violent crime and cause a lot of deaths. Handguns are used in lots of crimes that result in death, and so are semiautomatic rifles.

That's what makes this issue difficult, as I said, in the last two pages of my dissent in Heller. I fully understand the gang violence, gun violence, drug violence that has plagued various cities, including Washington D.C. This was known as the murder capital of the world for a while, this city. And that was a lot of hand-gun violence at the time.

And so I understand the issue. But as a judge, my job, as I saw it, was to follow the Second Amendment opinion of the Supreme Court whether I agreed with it or disagreed with it. At the end of the opinion, I cited Justice Kennedy's Texas v. Johnson quote which I read yesterday as the guiding light for the lower court judges and all judges.

HEWITT: And so, Larry Arrn, even though she kept pushing him about common use, and how can you say these weapons are in common use, he simply reflects upon the fact he lives in the world. He has daughters at schools threatened by school violence, as all of us do, have kids in schools or grandkids in schools. But he won't bite. He will not bite. And in so not biting, he's maintaining judicial independence.

ARNN: Yeah. The worst judges-- well, the most worst powerful judges, the liberal judges-- who wrote the phrase, "We embody, I embody, the Constitution".

What that means then is, if you just take these two simple steps that they all take, and the first is-- the original intent of the Constitution is that it will mean in any age what people think it means. That's the first step.

And then the second step is, then anybody who's in an office under the Constitution, his personal opinions are liberated to do whatever, right? And so it sounds boring, and yet it's revolutionary, it's incredibly important.

If a judge like Kavanaugh worries about his daughters getting shot in school, well, of course he hopes that policies will be adopted that will stop that. But that doesn't tell him what to do when a case under the Constitution of the United States reaches the Supreme Court of the United States. And the law is what he has to read.

HEWITT: Yes. And in the face of that very obvious fact and compelling testimony, Democrats attacked on marginal issues. Here's Brett Kavanaugh with Senator Orrin Hatch. Cut number 19.

ORRIN HATCH: Late last night, one of my colleagues asked you a series of open-ended questions about any conversations you've had with anyone at a 350-person law firm about Special Counsel Bob Mueller or his investigation. You said you do not remember having had any such conversations.

My colleague did not clarify why my colleague was asking the questions and did not allow you to complete your answers. I want to give you a chance to respond if you'd like to.

KAVANAUGH: First. Senator, I don't recall any conversations of that kind with anyone at that law firm. I didn't know everyone who might work at that law firm. But I don't recall any conversations of that kind.

I haven't had any inappropriate conversations about that investigation with anyone. I've never given anyone any hints, forecasts, previews, winks, nothing, about my view as a judge or how I would rule as a judge on that or anything related to that.

HEWITT: OK, so, Larry Arnn, before we go to break, I think what he did there, what Senator Hatch allowed him to do, is to underscore how silly the Democrats were. It's just silly to go after him on these issues.

ARNN: It's just like an answer he gave in another place. He says, I've never stolen anything at the White House. I don't know of anybody who ever did steal anything at the White House. And I've never used anything at the White House that was stolen by somebody.

HEWITT: You know, when you get right down to it-- Mitch McConnell told me this-- after Bork, no one is going to ever show any skin, and they're going to have to find something crazy, and there is no crazy when you get nominated.

ARNN: That’s right. Yes, see Bork's an interesting case, right? Because he lost by a lot.

HEWITT: He lost by 7, yeah.

ARNN: And he was a distinguished legal commentator, one of the foremost as an appellate judge and as an author.

HEWITT: Yeah, hold that thought. We're going to come back and finish on Bork and what changed then.

Welcome back, America. It's Hugh Hewitt with Dr. Larry Arnn, President of Hillsdale College. All things Hillsdale are usually the last radio hour of the week, The Hillsdale Dialogue, on Friday at 8 o'clock.

I'm doing it Monday because, A, we might have a hurricane by Friday that has got everyone fixated on getting people to safety and helping them out. But B, we just finished these amazing hearings with Brett Kavanaugh. And he is going to be confirmed in three weeks. In two weeks, judiciary will vote on him. In three weeks, he will be confirmed.

But what did we learn? And Larry Arnn, of course, knows as much about the Constitution as anyone in the country. And all things Hillsdale, by the way, at Hillsdale.edu, including Dr. Arnn's online course on the Constitution, which I would recommend to everyone.

But I want to play one more bit for you, Dr. Arnn, from these proceedings, having to do with the rules of war, because you've studied Lincoln so much. Brett Kavanaugh with Dianne Feinstein. Cut number 18.

KAVANAUGH: So the Office of Legal Counsel, Senator, subsequently withdrew those memos, as you know. And as I've made clear in some of my writings, the review of Judge David Barron's book, some of my opinions as well, the President does not have the authority to disregard statutes passed by Congress regulating the war effort, except in certain very narrowly-described circumstances that are historically rooted, the common example being command of troops in battle.

So as a general proposition, the President has to comply with the law. The President is subject to the law, including in the national security context. That is the lesson, I think, of the Youngstown Steel case, of Justice Jackson's categories. Category 3, as I've said repeatedly in my writings, which is where Congress has prohibited the President from doing something, is critically important.

That's essential to the rule of law as Justice Jackson said. The equilibrium of the country is at stake in category 3. And I've written about that quite frequently.

FEINSTEIN: Got it.

HEWITT: What do you think of that, Larry? And you've studied the war power of Abraham Lincoln as extensively as anyone. What did you make of his answer?

ARNN: Well, it was exactly right. It's that caveat that he said about certain narrowly-described circumstances, of course that's where it's messy, right? Because if you're in a fight for your life, then can a court come and tell you, change the battle plan or something?

And so with that exception, then, of course. And remember, when he says, "Congress has put a restriction on the President," that restriction is binding only if the President signs it. That is to say it has to become a law.

And then when the two branches cooperate to say something about the way one of the branches will operate, then you've got a law, and it's binding on them both. And so he's got that stuff down for sure.

And you know, that's one reason why, if people wonder, why are all these lawyers in the middle of the White House? And seemingly up on all the policy issues that come across the President's desk.

And the answer is, presidents make effort to behave lawfully. And they need people around who know what you can do here and what you can do there. And the presidents are obliged by their oath to do that.

HEWITT: And we have been blessed with Don McGahn, the White House Counsel. The president selected Don McGahn, so it's obviously his appointee. And Brett Kavanaugh is obviously his nominee.

But that legal team has done an exceptional job at identifying talent. That's what Mitch McConnell pointed out to me. There are two Supreme Court Justices. There are 26 Appeals Court Justices, with at least 10 more to go. There are 40 District Court Judges.

They have worked half a revolution. Got to hold on to the Senate to work the full revolution. But they have worked half a revolution, a revolution that might return to predominance that first strain of originalism that we talked about last segment.

ARNN: That's right. It's flourishing, right? I mean, if you like the Constitution as it was written. If you like the Constitution not as it was written, that means you don't like the Constitution. If you like the Constitution as it was written, then this is a great thing.

Gorsuch and Kavanaugh have this lifetime of learning, of careful articulation, of wit and command, that makes them extremely promising appointees to the Supreme Court.

HEWITT: And in alliance with the Chief Justice, Justice Alito and the great Clarence Thomas, the rule of four kicks in. Now, John Roberts would hold back a vote. Takes four votes to bring a case before the Supreme Court. "Rule of Four." And he would sometimes hold back, it is said, because he thought he would lose. He didn't want to lose.

Now he has five votes, reliable votes. They can pick any case they want now, Larry Arnn.

ARNN: And a lot depends on him. And you got to remember, all of these guys, right? This is a hard job. And I think-- and you know, I have some trust. People like Kavanaugh-- I don't know him. And I've met Gorsuch now, but I didn't know him when he was confirmed.

I think that they will think hard when these cases come up. And I think they will talk to each other. And that might even grow. There's a fair amount of talking among the Justices, and especially among their clerks. But that might grow.

And then there's things coming, what are we going to do about. What does the law say about this and about that? It's hard to predict where they'll come down on in every detail.

HEWITT: Oh, absolutely. It is not a lockstep at all. But it is going to be a remarkable Renaissance of originalism. Dr. Larry Arnn of Hillsdale College, thank you for joining me early to underscore Brett Kavanaugh is going to be the next Justice, America.