alberto gonzalez and also working with independent ken starr. he is an historic figure who has made some historic mentions and decisions. they will be reviewed and scrutinized awed nauseam. -- ad nauseam. get ready, the battle is on. kennedy: you've heard it, the supreme court pick is in, president trump moments ago announcing he has chosen d.c. district court judge brett kavanaugh to replace retiring justice anthony kennedy, and it is a decision that could change everything. if confirmed, conservatives would hold a very comfortable 5-4 majority on the high court, potentially for decades. judge kavanaugh was a clerk for justice kennedy and was nominated to his current position by president george w. bush in the 2006. now, less than an hour ago the president explained why he picked judge kavanaugh. watch. >> judge kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law. a graduate of yale college and

yale law school, judge kavanaugh currently teaches at harvard, yale and georgetown. throughout legal circles he is considered a judge's judge, a true thought leader among his peers. he's a brilliant jurist with a clear and effective writing style, universally regarded as one of the finest and sharpest legal minds of our time. kennedy: don't tell that to neil gorsuch. judge kavanaugh then thanked the president for the nomination. >> mr. president, thank you. throughout this process i have witnessed firsthand your appreciation for the vital role of the american judiciary. no president has ever consulted more widely or talked with more people from more backgrounds to seek input about a supreme court nomination.

mr. president, i am grateful to you, and i'm humbled by your confidence in me. kennedy: oh, make no mistake, a major political battle is brewing, and this is the scene at the steps of the supreme court. we're told police are there monitoring any protests. and moments ago vermont senator bernie sanders came out swinging! take it away, bern. >> are you ready to defend roe v. wade? [cheers and applause] are you ready to tell the supreme court that we think it's absurd that they give rights to billionaires to buy elections? [cheers and applause] kennedy: gotta catch up on curb your enthusiasm. if confirmed, kavanaugh will swing the bhaps of the top court even further to the right, and democrats will do everything they can to keep that there happening. we're going to have a lot more on that as well as what this

pick means for high stakes issues like abortion and gay marriage and your civil liberties and whether or not libertarians should embrace or run from this pick. first be up, who is judge brett california gnawing? joining me now, fox news at night host and supreme court icon shannon bream is back. shannon, there's obviously a lot of energy in the air. kavanaugh has been the front-runner of this four-pack, and he secured the nomination. who is he and how did he do it? >> listen, he is a guy who has been on the federal appellate bench for 12 years now, the d.c. circuit here in d.c. he's a yale grad. i think the president likes the whole ivy league, perfect resuée right out of central casting. he had a lot to like about brett kavanaugh. this is a guy who was part of the ken starr investigation, he helped to investigate the death of vince fosterer. he's got a varied background, but all those years mean now that detractors and supporters have hundreds of opinions to go through that he's written.

he has decisions that have upset some ultra-conservatives who say he didn't do enough when it came to cases involving obamacare. they also, though, do praise him when it come toss the administrative state, because that d.c. circuit where he sits, it's the one that gets most of the cases that challenge things dealing with the epa, the irs, all those federal agencies. he's been a real pushback against that administrative state. a lot of folks feel these are unelected bureaucrats or who are handing out policy that affect our lives. you may be able to hear the protests here tonight. i was here, obviously, when judge gorsuch's name was announced, and it was a different mood. there were definitely people saying we're going to block whoever it is, we don't like the president's pick. tonight is something different. we are at a totally different level here. there have been times there's been screaming and jostling. the police are here, they've shut down 1st street which runs between here and capitol hill. so plenty of appointments here tonight -- opponents here tonight, folks who say they will fight and do anything they can to stop this confirmation from happening before the midterm

elections. kennedy? is. kennedy: really interesting because if the president does, in fact, get more picks, shannon, you know that the atmosphere will be even more emotionally charged. it's interesting because as you point out with justice gorsuch, that nomination essentially just maintained the balance on the court. but as the balance slips away from the left, you can feel the desperation. why is that? is it because they're trying to activate the base, or is it because the courts are now the chosen venue for many progressive issues? >> yeah. and a lot of folks say that, that you have to look at the courts and realize -- some people even say the left is, quote, lazy or they haven't been able to get things done through legislative means, so they're constantly looking to the courts to be what critics would say activists. they want these judges to legislate from the bench. what they've not been able to get done at the ballot box. that's definitely a critique that's happened of the left, so we've seen quite a bit of that.

and, you know, there are judges who have warped about that. justice gorsuch, one of his readings, he talks about that. he said that the left has to quit relying on judges to get things done, that they can't convince voters to do. kennedy: we're going to listen in to cory booker. this has become the presidential democratic nominating process for 2020 informally on the steps of the supreme court: let's listen. [cheers and applause] >> the people want us to give up, but i will never stop fighting for our rights. [cheers and applause] we've got a mountain to climb, we've got challenges ahead, but we cannot grow weary now. [cheers and applause] president trump has told us what he wants to do -- kennedy: we will be watching you on fox news at night tonight. there may be even more developments and protests on the steps of the supreme court as

this nomination sinks in with the right and the left. and, of course, the dnc has already released an ad calling judge kavanaugh an extremist. watch. ♪ ♪ kennedy: i think either side -- [laughter] [inaudible] minority leader chuck schumer also said in a statement, quote: if we can successfully block this nomination, it could lead to a more independent, moderate selection that both parties could support. despite his tough talk, west virginia senator joe manchin says schumer has not asked democrats to form a united front to oppose the nominee. so will this pick have a major

effect on the midterms, or is this just another major tantrum by the left? let's go to the panel. tonight it's senior editor -- oh, no, it's molly hemingway! this is the best surprise ever! she is senior editor at the federalist, oh, my goodness, and a fox news contributor. she knows everything. molly, welcome back. >> great to be here with you. kennedy: let's talk about the political ramifications of this choice. if the president had gone in a more socially conservative derek, he would have forced -- direction, he would have forced senators running for president, particularly those in the democratic party who happen to be female, to come off as anti-woman and anti-catholic if he had, in fact, nominated amy barrett. he didn't do that. he went with judge kavanaugh. what does that say to you? >> i think there are two different issues, there are the people on the right and the people on the left. the people on the right, they were just kind of waiting to find out which flavor of awesome they were going to get. for people on the left, they're in a very bad situation. they don't have the votes to

stop someone unless you can peel off various republicans, and then even if they do stop someone, this is a very good electoral year in the senate for republicans. so it would just hand the republicans a great talking point of you need to elect more republicans if you want to get this nomination through. but kavanaugh himself is extremely moderate, well-liked by democrats and republicans. he's well regarded by his peers on both left and right. he's definitely a constitutionalist. he's definitely someone who cares about what the constitution says that is not as radical a position as maybe some people on left would like to present it as. kennedy: well, and that's interesting because it puts susan collins and lisa murkowski where they almost, essentially, have to vote for him. because you don't have the raging abortion issue that you might have with amy coney barrett. and here you also have, if the democratic caucus forces their senators to vote against this judge, then they have to go back

to their home states like north dakota and west virginia and defend those votes which could put them in a losing position. so if, in fact, this is what happens and you have people like joe manchin and joe donnelly voting against judge kavanaugh, could that cost them their re-elections, and does that mean that there could be a stronger hold for republicans in the senate? >> right. they really are in a tough pickle, because if they vote against this nominee, it could hurt them with their re-election shots in states that trump won decisively. and then if they, you know, if they go along to get along, then it can also cause them problems, and the democratic party really wants to present a united front, not get a single democratic vote. it is a very difficult situation for democrats. again, if they lose those seats and if, god forbid, something bad happens in this nomination process, that'll just end up in the next senate you'll have even more republican votes, and it'll

be much more easy to get the president's nominee through. kennedy: that's absolutely right. and with that math if, in fact, democrats all stick together and republicans all stick together and the math prevails for the republican side, you could see a few more republican senators, and that means it would be easier to get someone like barrett on the bench if, in fact, the president has another pick. do you think that he's got another justice who will retire during his first term? >> i think life could take many twists and turns for several of the justices that are currently on the bench, and so you might see one or even two nominees by the end of this presidency. but this, you know, this thing -- we talk so much about abortion, and that is a very important issue, and inventing a right to abortion has obviously caused a lot of problems in this country. but there are much, there are really big issues at play here. i think it was great that shannon bream brought up the rise of the up accountable bureaucracy, sort of this fourth

branch of government. this is really the issue of our day. it is really something that should be thought about. i think a lot of people are using abortion as a distraction. not that it's not important, it really is. but one's approach to the constitutional limits of government and what it means to be self-governed, that's really the important issue i hope we'll see media discussion inform. kennedy: well, you can certainly infer that abortions will be illegal at midnight if you listen to bernie sanders, and that is the level of the rhetoric on left. i hope they have a deeper ewell to draw from than that when it comes to challenging this nominee. but if that's all they're going for, it's not necessarily a popularity contest. moly hemingway, thank you so much. >> great to be with you. kennedy: all right. president trump's job is over for now as the senate will start debating confirmation. here's what the president says he he expects. >> i want to thank the senators on both sides of the aisle, republican and democrat, for

their consultation and advice during the selection process. this incredibly qualified nominee deserves a swift confirmation and robust bipartisan support. kennedy: senate majority leader mitch mcconnell has a tall order ahead of him. if he loses just two or more of his republican colleagues and democrats unite in blanket opposition, it will be impossible to to possible to get judge -- impossible to get judge kavanaugh confirm. should the senate go to battle over this pick? let's go to tonight's panel. now we're going to see him, chris baering ron is here along with fox news contributor and host of the richard fowler show, it is richard fowler. and from reason magazine and co-host of the fifth column podcast, mat welch. back in the house. welcome back, gentlemen. >> good to be here. kennedy: so the most important thing, obvious, is constitutionalism. and someone who is an originalist, as the president said, is brett kavanaugh an

originalist? >> he's a -- he talks about originalism, but originalism always the problem is what are you specifically referring to. there's many different schools of originalism, and that's mixed up with how much respect you pay or deference you pay to precedent and other things. my worry, he's great on administrative law from my point of view -- kennedy: explain that. >> so it's just how much deference do you give to the regulatory agencies to write their own rules regardless of whether there is specific statutory -- kennedy: that what is known as chevron deference. >> gorsuch and kavanaugh are two of biggest critics of chevron deference going forward. what i'm worried about is the same thing that rand paul will be a skeptic in the confirmation process, his view about the fourth amendment particular particularly third-party doctrine. can the government have access to that. he has ruled in the past, sure, why not? that is the opposite of what the supreme court just ruled in the carpenter decision. and we're going to see an entire

body of law is going to open up on the supreme court about this, so if he's on the wrong side of that, that could have terrible implications -- kennedy: no, those are pressing issues. you know, when you talk about the constitution, you don't just get to abstract an amendment here or there. so, you know, what do you think is going to happen in regards to the second amendment? >> oh, i think we'll have to wait to find out. if donald trump picked up and he's from the federalist list, i would assume, i think there'll be more and more research -- kennedy: what are you most worried about? is. >> i think there's a couple issues. i think this idea that the left has always relied on courts, i think that's a misnomer. i think what you've seen is minority groups have gotten the courts to get it right. brown v. board is an example. the loving v. virginia case. and that is the job the courts have always had, there is majority rule with minority rights. and by having court stacked in a way where it's 5-4, and it's a

hard 5. with justice kennedy you had a say i'm going to move in the gaze of expanding rights, and that's what kennedy did. he wrote the majority opinion in those times. i think this idea of having somebody that is going to be a hard 5-4 makes it very hard for minority groups and those who will feel they're being oppressed by current laws or rules that cannot go to the ballot box because they'll never have the votes, gay marriage, for example, they knew that when they went to the courts, the courts have always been an institution that have expanded -- kennedy: you use a lot of hyperbole, and as a gay man and republican, chris barron, i'm sure you have something to say about that. >> the majority of americans now support marriage equality. >> yeah, but -- [inaudible conversations] >> i'm actually not, i'm not done here. the problem for the left is going to be that they're out there right now setting themselves on fire and pretending like tomorrow we're going to have back alley abortions and gay marriage is

going to be illegal, and the reality is most americans are watching brett kavanaugh on tv this morning -- or this evening and seeing a reasonable, intelligent supreme supreme cout nominee who is going to be a perfectly safe pick. and so if you want to kind of be, light yourself on fire, scream the sky is falling, it's fine. but at the end of the day, that is purely about politics -- >> that's not true. >> that is absolutely -- >> no, no, no, let me -- [inaudible conversations] you're right, you're absolutely right. [inaudible conversations] >> wait a minute. >> you're absolutely right that marriage equality is popular amongst most americans, a majority of americans, that is very true. but when you put marriage equality on the ballot in mississippi or alabama, it'll fail utterly. and the gays and lesbians and bisexuals in mississippi will not be afforded the same rights as -- >> no one's going to overturn marriage equality.

>> we actually don't know that. >> okay, we also don't know -- [inaudible conversations] there's absolutely -- kennedy: i'm so glad that you guys are bringing this up, because we're going to -- [inaudible conversations] continue this conversation with a couple who actually has a dog in this fight. they helped reinstitute marriage equality in the state of california. we're going to have the panel back on a little bit later because there's lots more to talk about including what happened, not even lying. and we're going to have more on tonight's hot button social issues. the couple i was telling you about, they set the ball in motion, and they join me next. ♪ ♪ whoooo.

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kennedy: we are back. it's a big night for the supreme court. we've got more on president trump's supreme court nomination. judge brett kavanaugh. his confirmation would swing the balance of the high court to the right and could lead to a revisiting of such issues as abortion and gay marriage. anthony kennedy cast the deciding vote in the landmark case that recognized the right of same-sex couples to marry, but there is concern in the lgbt community that his departure or will inspire challenges that would force the court to revisit that 2015 case. it is an issue that hits home for my next two guests who were one of the two plaintiff couples in the proposition 8 lawsuit that restored marriage equality in california. and, ultimately, made its way to

the supreme court. with me now, jeffer is april low and paul khatami, welcome, gentlemen. >> thanks for having me. kennedy: so how big of an issue is this nomination in the lgbt community? >> well, it's certainly a big issue, and it certainly has our community a little bit on edge. justice kennedy had certainly left a legacy on the court for protecting minorities and especially the lgbt community by writing the lawrence decision, the romer decision and windsor, so he has always referenced the importance of equal human dignity for lgbtq citizens, and that's something we want to protect. there's no putting this genie back in the bottle, we hope, because the court has typically not gotten ahead of public opinion. but as your guest last referenced, 67% of americans support the freedom to marry for our community. kennedy: absolutely. and that number swells when you talk to younger generations. and, you know, it's not just a

matter of cultural curiosity, it is something that has reached critical a mass. and there is now cultural acceptance, and rightly so. and i think a lot of people think that it's time for the court to move on to other issues. there's not going to be another justice like anthony kennedy. every justice charts their own course here. and it remains to be seen whether or not judge kavanaugh swing once he gets on the court. that's always a big worry for presidents. but is there anyone of the list of people that you saw that president trump was considering, was there anyone on that list that you would have been more comfortable with? >> you know, listening to kavanaugh tonight, we had some hope, right? because he did say that precedent was something that he would consider. and once-settled law is settled law and doesn't present an injury or any harm, it should remain settled law. especially when it expands on the rights of a minority group of people that are good-standing

americans, that rely on the court to do what it's there to do, enhance and expand the rights of all americans. so we're hopeful. it's our job now, it's an opportunity to make sure that precedent stands. kennedy: and i think it will. i think it will here, and you're absolutely right about judge kavanaugh. and ate -- it appears that one of the guiding principles he has is he does, in fact, defer to precedent especially in major cases that have already been set. now, as a civil libbertarian, we were talking about this earlier, i'm much more concerned about the fourth amendment than any of the other amendments that generate hot button issues before the courts. >> well, what you're going to see going forward is when we talk about marriage equality, and one thing i really did like hearing tonight was when kavanaugh talked about his mother. his mother said equal -- can equality is important for all people. and that really resonated with me. it's the one thing i remembered. but going forward, we might not

be worried about marriage equality and, certainly, we can't predict that sitting here today, but we certainly should be concerned about a gradual chipping away of lgbt equality. maybe you want to refer to it as seeing more cake cases, you know? you might see things like that with regards to religious -- i don't like to call it religious freedom, because let's call it what it is, it's a religious exemption. that's what concerns us most moving forward for our community -- kennedy: well, but if you read that decision though, justice kennedy was or very clear that you also have to give weight to the valid religious beliefs of the plaintiff in that case while at the same time not infringing on the civil rights of minority groups. >> it's true, and we, we honestly believe it's not a question of your faith being an issue that is in your home or in your community, it is about the faith of these people that are then using it to create law that prohibits other people from equal access. and we know what we're standing

in front of that courtroom and in that courtroom, equal justice under the law means equal. and so what we needed to do is make sure we're protecting our freedoms because, as jeff had mentioned, these slight chippings away, one day we wake up, apathy might set in -- kennedy: apathy, in many ways apathy has set in in regards to our civil liberties. and i think above all it's critical that we have a constitutionalist on that court, someone who understands and really is an originalist in that this is the rule book that we've decided to play with and, therefore, the laws as they are written are the laws that are to be honored. >> the most important thing in that constitution says that all men are created equal. and that's -- kennedy: and women! >> for our community finish. >> and women. [laughter] all people. >> that's the one thing that justice kennedy always referenced in all of his opinions, dignity, human

dignity. that's all we were looking for when we went to the supreme court, ask that's all our community is looking for today and moving forward. and we always could use the courts as a backstop, and we trusted -- you could always trust kennedy's vote for our community be on that court for the greater degree. but right now moving forward, we don't know -- kennedy: well, then what i would say is if you have particular concerns, make sure you contact your senator. because often times whether it's republicans or democrats, they like to sit in front of the american public in moments like this especially when these are emotional nominations, and they like to showboat and ask stupid questions and fan the flames of emotionalism as opposed to coming to real, rational conclusions. and i hope to god every senator takes the opportunity to put their adult pants on so we can put judge kavanaugh to the test and really determine what his judicial philosophy is so we know if he's on that court for decades to come, we know what

queer getting. yes -- we're getting. gentlemen, thank you so much. koma coming up, i'm going to speak to a former clerk for judge kavanaugh. get some gossip. and i'm going to talk to ilya shapiro from the cato institute about how this choice impacts liberty lovers like you. more from the panel as well. stay right here. to most people, i look like... most people. but on the inside, i feel chronic, widespread pain. fibromyalgia may be invisible to others, but my pain is real. fibromyalgia is thought to be caused by overactive nerves. lyrica is believed to calm these nerves. i'm glad my doctor prescribed lyrica. for some, lyrica delivers effective relief from moderate,

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kennedy: so glad you're here on this big night. we're back now with more on the supreme court nomination of judge brett kavanaugh. and guess what? democrats are pouring on the opposition. fox business network's edward lawrence is live with more in d.c. edward? >> reporter: yeah or, kennedy, democrats are piling on here. now, the president says that he took a long, hard look at all the names on his list. he says he went and not only reached out to republicans, but democrats. that didn't seem to matter. the house minority leader, nancy pelosi, said, quote: once again the president is using his nomination as a destructive tool on a generation of progress for worker, women, lgbtq americans, communities of color and families and to radically reverse the course of american justice and democracy. senator dianne feinstein was actually invited to the white house to introduce or get introduced to the nominee here. she was one of five democrats to do that. now, she is the ranking member of the judiciary committee who will talk to kavanaugh later on

when their hearing starts. now, she in a statement comes out and says that his views are far outside the legal mainstream when it comes to access to health care, executive power, gun safety, worker protections, women's reproductive freedom and government's ability to insure clean air and water to name a few. now kavanaugh in his speech talked about his push for diversity that he has inside his office saying he picks a number of women clerks. he went on to preview exactly what he's going to tell senators starting tomorrow when he's on capitol hill. >> i believe that an independent judiciary is the crown jewel of our constitutional republic. if confirmed by the senate, i will keep an open mind in every case. and i will always strive to preserve the constitution of the united states and the american rule of law. >> reporter: white house press secretary sarah sanders says

that she would like to -- or the white house would like to see him confirmed by october 1st when the supreme court goes back into session. kennedy? kennedy: edward, it was getting very fiery down the street at the supreme court we saw with shannon bream at the top of the show. what's the mood at the white house? is it a little different? >> reporter: a lot different. it's festive, actually. when we were walking out of the room where they introduced brett kavanaugh, there was a party going on next door. all of the republican senators who were there, i i saw chief of staff john kelly going in, and there was music playing, there was dancing and a lot of smiles and awe. [applause] and applause. so this is a very festive atmosphere here. the republicans believe they have someone that can go through, the president believes he has the right pick for the supreme court. kennedy: i think he's got the right pick for those moderate rinos from alaska and maine. edward lawrence, thank you so much. very good. blue jacket and all. the panel is back. let us rewelcome chris barron, richard fowler and mat welch.

was in the best pick of the nominees that we saw on the president's list? >> i don't think you could go wrong -- kennedy: you can always go wrong. look at souderer. >> well, yeah, there'll never be another one hike that again, no one's going to pick some random guy from new hampshire. every president is going that make sure they've got a track record. i think the final four, any four of them was a home run. i think, by the way, the reaction from the left wouldn't have mattered which of the four he would have picked, they were going to say -- kennedy: i think people would have literally lit their hair on fire if he nominated amy barrett. >> and, by the way, i would have loved to have seen that fight. this is a safe, solid pick. he's going to be more conservative than justice kennedy was. he should be and will be confirmed. i'd have loved to have seen the amy barrett fight for no other reason than a whole bunch of liberals beating up a woman for being religious. kennedy: richard, if you're joe manchin, heidi heitkamp, what do you do right now?

do you vote against this pick who's pretty safe in your home state if you've got a majority of voters who you hope are going to reelect you to the senate? do you vote to confirm this person and go against your party? >> i don't know if this is a safe pick. i think that's problematic. one, let's talk about the list. this -- kennedy: no, let's answer the question. >> you can't answer the question was talking about the -- kennedy: no, we're not going to the talk about the list, we're going to talk about -- >> far-right individuals, and it screams so you have people who are pro-life -- >> federalist society is not a group of far-right -- >> but is there, was there -- okay. was there one person on that list who was pro-choice? one? >> was there one pro-lifer that obama considered? >> merrick garland was fair, and he didn't even get a hearing. kennedy: first of all, richard, answer the question. >> i will answer the question. kennedy: if you're joe manchin, joe donnelly, heidi heitkamp, how do you vote? do you vote with your party, or

do you vote with someone that voters in your state approve of? >> i think it all depends on how lisa murkowski or susan collins falls. they vote for this justice knowing his record on choice, knowing -- kennedy: what is his record on choice? >> well, there was a case in texas regarding a minor who wanted an abortion, and he ruled against her -- kennedy: he actually didn't go as far right as social conservatives -- >> yeah, but it was far enough, and the question is it far enough for lisa murkowski or susan collins to vote against him. ing that's really the question. i think based on that and also will he go after, if the case comes in front of him -- kennedy: what's more important for democrats, thwarting in this nomination -- >> no, no, no, this idea of thwarting the nomination -- kennedy: or having people reelected in critical red state where is the president -- what's more important? please answer the question. >> no, i'm going to answer your question, kennedy. i've never come on here and not

answered your question. i do believe for these democrats, let's talk about joe manchin in particular, this is not going to -- kennedy: what does doug jones do? is. >> he's another, he's in a difficult situation as well. kennedy: i want to the hear from mat welch. >> people in d.c. like kavanaugh. i've been looking on twitter. benjamin wittes, not exactly a fan of donald trump says, look, i know him pretty well, he's great. we -- kennedy: rand paul said can't wait to talk to him, i'm not necessarily opposing his nomination. >> correct. and we underestimate how important that is kind of in washington if you actually have a reputation of being sort of a nice and thoughtful person who takes your job seriously, that goes kind of a long way. i think that there are open questions about him. the most interesting one and this will touch on roe and susan collins and lisa murkowski, he wrote a dissent in an obamacare case in which he stressed he doesn't think the courts should

jump into really large issues of particular import that would sort of overturn what america is arguing with itself about and could affect a lot of lives. so this is a much more john roberts point of view saying that, you know, john roberts found his own way to rule on the obamacare case to try and tailor it and make it so narrow -- kennedy: he's a secret leftist. we've really got to go. mat, richard and chris, beautifully done. coming up, we'll show you proof that the left would have opposed president trump's nominee regardless of who he picked tonight, and it's hilarious. plus plus, i'm going to speak to a former clerk for judge kavanaugh, that's next. ♪ ♪ om are giving venture cardholders 10 miles on every dollar they spend at thousands of hotels. brrrr! i have the chills. because of all those miles? and because ice... is cold. what's in your wallet? and because ice... is cold.

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kennedy: we are back with much more on te president's nominee for the supreme court judge brett kavanaugh. the women's ma, that's a -- march, they just released an unbelievably predictable statement. it starts in part by reading, quote: in response to donald trump's nomination of xx to the supreme court -- [laughter] of the united states, they couldn't even be bothered to fill in the name of the nominee! and they would have had the same boilerplate response no matter who he picked. oh, lord. well, my next guest has said that kavanaugh is family man and that america is going to fall in love with him. he was a law clerk for judge kavanaugh in the d.c. circuit appeals court. justin walker joins me now.

he's also clerked under justice anthony kennedy at the supreme court. welcome to the show, justin. >> thanks very much. kennedy: how would you describe judge kavanaugh's judicial philosophy? >> i think judge kavanaugh has a reverence for the constitution which you heard a little bit in his talk today. he's a kind of judge who thinks that you shouldn't make up the law or invent the law, you should search -- kennedy: give us an example of making up and inventing the law. >> you know, i'll give you an example of an opinion judge kavanaugh wrote where he ruled for a criminal defendant. it was a case about whether or not the defendant should be forced to pay restitution to the federal government. there were four different circuit courts around the country who had taken one position, and is judge kavanaugh read the text. he looked at the structure of the statute, and he says, you know what? the criminal defendant has a pretty good argument here. and just in this past term the supreme court vindicated judge kavanaugh's opinion in an opinion written by justice

breyer. kennedy: interesting. now, there is obviously a difference between being faithful to the constitution and being a constitutionalist. >> can you explain? kennedy: well, i think just about any nominee is going to go before the senate and say i love the constitution, i think the constitution is so great, constitution, constitution, constitution. but then some of their past rulings and writings would suggest that originalism does not run as strong and as deeply within some jurists as it does with others. >> i understand. yes, that's exactly right. it's easy to say i'll be faithful to the constitution, but what's more difficult is to build the kind of 12-year record of independence and fair mindedness that judge kavanaugh has built where he has said the second most important court in the country whether you're a plaintiff or defendant, whether you're the prosecution or a criminal defendant, i'm going to

look at the text, i'm going to look at the structure, i'm going to look at the history, and i'm going to interpret the law and apply the law as it is without any favoritism or partiality. kennedy: he certainly didn't do that when faced with the nsa's discontinue call record dragnet, and he voted in concurrence that it was just fine for them to go on that massive metadata collection sweep. and i think that's going to be problematic for him. what else in his storied 12-year career do you think will be problematic in his confirmation process? >> you know, the issue you raised is an issue that's divided the lower courts. it's a difficult question. but i think if you look at a what judge kavanaugh wrote in a case that later went to the supreme court about privacy, gps tracking, he wrote a concurrence in a case called united states v. jones, later unanimously vindicated by the supreme court where they said the government cannot use a gps tracker the follow your car all day and all night. not only did he get the right,

the answer there that the supreme court later vindicated, he provided the kind of originalism, property-based road map that justice scalia then took up and used in order to write the majority opinion. so i think left, right, center, conservative, libertarian, they're going to find in judge kavanaugh somebody who is independent, who is thoughtful and who has just a terrific career and a terrific story to tell. kennedy: what is it about him that will assure votes of lisa murkowski and susan collins? >> you know, i think that both of those senators and a lot of other senators are going to look for somebody who doesn't take a side, a partisan side and then search for a way to rule for that side. i think that every, you know, fair-minded senator is going to look for a judge who's going to exercise independence, fair-mindedness and just going to give every party a shot based on what the text of the constitution says. kennedy: speaking of shots, the show is winding down. justin walker, thank you so much. >> thank you. kennedy: does brett kavanaugh

pass the freedom test? is that's the most important question of the night. what do liberty lovers think about the president's supreme court nom? cato institute's ilya shapiro weighs in next. ♪ ♪ and now for the rings. (♪) i'm a four-year-old ring bearer with a bad habit of swallowing stuff. still won't eat my broccoli, though. and if you don't have the right overage, you could be paying for that pricey love band yourself. so get an allstate agent, and be better protected from mayhem. like me. can a ring bearer get a snack around here?

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kennedy: president trump just nominated d and sports fan judge brett kavanaugh to the supreme court. now judge kavanaugh is no mike lee -- that's who i was hoping the president would pick -- but if he does make it past the senate, what does that mean for your civil learns? let's bring in cato institute supreme court review editor-in-chief, ilya shapiro. thank you so much for taking time. what are your first thoughts on this nominee? >> well, you liked mike lee, i did too. regardless, kavanaugh is a conventional conservative choice. i mean, he has a long track record. he's not some stealth david souder or squishy anthony kennedy. he's really good on the constitution's structural protections for liberty like kennedy was and pushing back on administrative law. hopefully, he locks arms with neil gorsuch on that project. kennedy: what does that mean for the president? >> well, it means the president

took the advice of his closest legal ad seesers. it was well known -- advisers. it was well known that don mcgahn, the white house come, was championing kavanaugh, and he had a lot of friends in insider d.c. legal elite types -- so much for draining the swamp, i guess. but it means trump is ready to go with someone who has a strong record of pushing back on government power in those structural ways. and you asked about civil rights. it just depends. he doesn't have a full panoply of rulings on a lot of issues because in the d.c. circuit he's mostly dealing with big government agencies. he has had an opportunity to expound on protections for the right to keep and bear arms. he disagrees with most of his fellow judges across the country which are effectively resisting the second amendment. on other things we don't know. he's ruled more about the national security agency as you were discussing with justin than on bread and butter fourth amendment police cases. kennedy: now, how do you glean some of those answers from the

senate confirmation process which, as i said before, is usually just a bunch of grandstanding and showboating? >> it's kabooky theater. you don't glean that at all, you go through his long record. he doesn't just write opinion opinions, he gives lots of speeches. people are concerned, myself included, that he might be too much like john roberts and being restrained, the my mallist, but he has a longtime involvement with the federalist society and all these intellectual theories. he's not a republican party animal. so that gives me, thats as assuages me somewhat. kennedy: it might be problematic, his past with the starr report and his involvement in the bush white house. we've got about 20 seconds left. what do you think -- >> that's surely where the attacks from the left are going to come. they're not going to be citing humphries executor and all of these old cases about getting the separation of powers wrong.

they're all going to be talking about bush and the war on terror and bush lied and people died. and ken starr even worse who, i guess, just made an appearance on your sister -- kennedy: we've got five seconds left. will he be confirmed? >> absolutely. he will be on the court that first week of october, and he will generally be good. kennedy: ilya shapiro, cato institute, thank you so much. we'll be right back, stay here. ♪ ♪ [ drum roll ] ...emily lapier from ames, iowa. this is emily's third nomination and first win. um...so, just...wow! um, first of all, to my fellow nominees, it is an honor sharing the road with you. and of course, to the progressive snapshot app for giving good drivers the discounts -- no, i have to say it -- for giving good drivers the discounts they deserve. safe driving! for giving good drivers the discounts they deserve. that's the same things i want to do with you.

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kennedy: thank you for watching the best however of your day at a crazy time. tomorrow we are back at 8 p.m. eastern with guy benson, mike baker and chris stirewalt. and you, of course. find me at kennedy nation, twitter and instagram. good-byement. ♪ [♪] neil: we are an hour away from finding out who the president is going to pick to succeed justice kennedy on the supreme court. we are told there are four individuals on that list. three men, one woman. all with intellectual ties to the constitution. a lot of people are reading palace intrigue into where certain justices were at the time and who was with them. what they were doing