beings and divide power and make sure that >> thank you very much, judge. my time has expired. i'm not the chairman of the committee even though i'm playing him on tv. i understand that under the previous order entered before he left, we're supposed to take a ten-minute break. we stand in recess for ten minutes. >> perhaps one of the few humorous moments today. mike lee posed the question, what is your favorite of "the federalist" papers? >> we all have them. 51 is mine by far. chris wallace, brit hume are here, amy stoddard and others in new york. chris, your thoughts on how this

has gone. and not as contention as what we thought in some of the democratic questions. >> to be honest, it's been a bit of a snore. part of that is because i guessed that we as reporters like conflict and we kind of thought that maybe the democrats weren't going to be able to blow up the nomination but they would scuff off brett kavanaugh. they really haven't done much of a job. part of that is brett kavanaugh. he's a very able witness. sometimes i think he's answered in a scholarly fashion, sometimes i think he's kind of muddied an issue up and complicated it enough that it loses its edge. i would have to say i was a little surprised, particularly by sheldon whitehouse who in the initial burst was talking about yesterday morning, talking about the outrage of this hearing and sounded very aggressive. went down a lot of rabbit holes that i couldn't follow them. my guess is most of the viewers couldn't follow them.

i thought pat leahy and dick durbin did a good job in the sense that they were pursuing specific issues in consistencies, in the testimony that they perceived as inconsistencies for brett kavanaugh when he went to the circuit court of appeals 10, 12 years ago and the records they've gotten since then. but they didn't really score many points on them. i thought sheldon whitehouse, i don't understand -- that was a half an hour i'll never get back. >> i'm thinking back to the borgmann nomination. that's when the opponents used the nominee to blow up the nomination. what was done to bork and in the bork hearings was unfair. it was character assassination. it was outrageous but successful. the people that managed these nominees now from republican

candidates, nominees from president -- republican presidents have learned a lot about how to deal with the hearings. when you heard kavanaugh say as he did, talking about the parties to the case that they're flesh and blood human beings and we need to have empathy for them and real world consequences of the court are very important. as a political matter, great stuff. a legal matter, it's nonsense. we're you're an appellate judge and an issue comes before you, the issue is not the parties. you're to resolve the legal issues. it's a purely legal matter. the parties may happen to be the case that they pick to do that. now, obviously it's as well as a human being to say you care about the parties, yes, you should, but that's smart to say that. bork said when he was asked about why he wanted to be on the court back then, he said among other things, he said it was an intellectual feast. his critics got all over that. to him it's a theoretical matter

and people are just writing on a page and not names on a page. so politically, that's an unappealing answer and hurt his cause. it's clear that kavanaugh is aware of that lesson and has learned it. >> you need to add humanizing flourishes in order to be palatable to both sides and still maintain the judicial neutrality, which he's hammered home. amy, when we saw the president moments ago, he said he watched and felt that at this point democrats are grasping at straws. do you agree? >> i do. but as we've been commenting throughout the day, we haven't seen the big firecracker democrats trying to run for president in a few years. they're coming later in the day. i expect them to make more of a show than the senators on the democratic side that we've heard from today. i do think the argument about disclosure still stings. i thought durbin was effective. democrats are trying to shame brett kavanaugh about the fact that so much of it has been

protected under executive privilege and wouldn't he want to have all of this revealed. wouldn't it make him more comfortable. it made him uncomfortable to answer the question. that's the theme that we'll continue to hear. even though we haven't gotten to the most fiery questioning yet, what the take-away is from the critics of brett kavanaugh is so far as he will not respond on how he would respond as a supreme court justice to a pardon by president. he would not respond to how he would rule on a subpoena to a president. he would not say that he would not back the constitutionality for pre-existing conditions. those are the bottom lines. no matter how dull the questioning has been. that's what they came away with today and what you'll hear about in the mid-terms. >> so after the break, we have senator klobuchar on, senator koonce from delaware, senator

sasse. shannon bream is on the perch overlooking the committee. shannon, we've seen a lot of protest still. it's continued regularly throughout. is this an orchestrated deal that you see that has spread out over the committee hearing? >> you know what? yesterday i heard from somebody that waited in line with the public like anybody else. they let them sit down below where we are. this person told me, i didn't see it for myself, there's increasing reports about the fact that there's money changing hands between some people in the line and people that we then track and see in here that are actually protesting. i haven't seen it. we heard it from somebody yesterday and say they witnessed it. we see things on social media claiming the same. it's hard to tell. it appears repeat people that we saw protesting yesterday back in here today. they're quickly removed but people are finding a way to

cycle back in. it punctuates things at the oddest moments. there's a moment when judge kavanaugh said he wants to be somebody that is either completely neutral and representing all americans from all classes or background. he wants them to feel like they've been fairly treated whether on the losing or winning end of a case. and just as he was starting to talk about that, treating all americans fairly and gaining their confidence and restoring confidence in the supreme court as an apolitical body, another protest erupted. it's continued through the important points today. guys, if you're wondering, federalist 10 is not bad. it's about the electoral college. >> we knew you would like it. let's bring juan back in the mix. juan, as mentioned, we're waiting for some of the sort of most vociferous critics of brett

kavanaugh. one is cory booker and kamala harris. no doubt they will try to put down markers that might propel that for them in the future. >> i think the whole issue for them will be the integrity of the court with judge kavanaugh as the swing vote in the kennedy seat. it's interesting to me watching the democrat's strategy throughout the day, i think clearly this morning the effort by senator leahy was really about whether or not you can be trusted. you know, leahy was saying you were using stolen documents or suggesting as such. kavanaugh said he didn't know that those documents were stolen or taken wrongly from the committee. and then this afternoon, you listen to sheldon whitehouse, the senator from rhode island. he's talking about dark money. again, dark money being behind the federalist society and other organizations that have been putting conservative judges on the court. in both cases, i get the sense

that they think they're not stopping the nomination, but they are raising questions both about the integrity of the nominee and whether or not there's a shadow or dark money hand behind him pushing him on president trump even and secondly about the court again being influenced by money in terms of which cases come before it and whether the court is being pushed in a direction that is not in keeping with the true interests of the american people. >> all right, judge. favorite federalist paper. >> i'll take madison. we have a government because men are not angels. look, there's three audiences here. one is senator paul, senator collins and senator mccall. the second is the general public. i'm with chris wallace. i have tooth picks keeping my eyes open during senator

whitehouse who i thought was going to be aggressive. he put everybody to sleep. the third audience is the hard left of the democratic base. i don't even think that the democrats on this committee have served that audience. no one has laid a glove on judge kavanaugh. he's not only coming off as brilliant, he's coming off as human and warm and likable. the inevitable next justice on the court. >> do we have dana in new york? let's go to you. as you watch this play out this afternoon, one of the things that strikes me is the fact that as grassley brought up, senator grassley, a lot of these complaints and we think about whitehouse and you think about leahy, that neither one of them availed themselves of the opportunity to look at these confidential documents when they had the opportunity. the only one that did was klobuchar. yet they're still complaining about not having access to the documents. >> in fact, at one point, senator leahy had to concede

that actually brett kavanaugh had not sent the e-mails. he wasn't on the one e-mail he was looking at. it was a clever ploy to try to get back around to the complaint that there are not enough documents but i don't think it made the sale. brett kavanaugh, he's been extremely compelling as my colleagues have said. they haven't laid a glove on him and it has separated the true legal scholars of america who understand our constitution from those of us that watch legal dramas on tv and think we know what we're talking about. the judge is getting a kick out of that one. really is amazing. when he quotes from the federalist papers, like almost a bingo game here for which one he's going to come up with next. what the democrats, one of the things they're doing, the democrats so far and you're right, stay tuned because there will be a lot of fireworks with the next younger democrats getting up to question kavanaugh, but i believe they're moving to try to influence kavanaugh instead of trying to block him.

you saw that with senator whitehouse saying to kavanaugh, when you get there, could you make sure you check in on this issue? it's a concern to me. kavanaugh said absolutely, i'd be happy to do that for you. the last thing on the protesters, there's a law of diminishing return. when you have somebody talking about the importance of our constitution, how the founding fathers thought about separating the branches of government and then you have incoherent impossible to hear screams from the background interrupting, it's hurting their cause. >> all right. panel, stand by. just to give you a sense of our programming here, we'll take a quick break as we get back to the hearing and then back to regular programming at 4:00 p.m. with neil cavuto.

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senator klobuchar is now questioning judge kavanaugh. >> is there anything in those documents or in the staff secretary documents that you think we would like to know that is relevant to some of the topics we discussed today? you must know what is in them. >> before you answer without taking time off of her time, it's incorrect that committee confidential, no senators can see those records. any, all 100 senators can see those records. in fact, we set up separate terminals so people can go there. we haven't had very many people take us up on the offer. >> mr. chairman, not to go into my time either to respond to you, i wasn't talking about those 189,000 documents. i was talking about the ones that we're not allowed to see from the staff secretary's time as well as 102,000 that the white house has asserted privilege on.

so i'm not talking about the 189,000. >> i stand corrected. >> all right. so again, i asked if there's anything in those documents that you think would be relevant to our discussion here. >> senator, those documents are president bush's documents and for the committee and the bush library and the executive branch to negotiate about. as discussed, i have 12 years of judicial record and this is not a new issue. this is an issue that came up in justice scalia's hearing and justice roberts with the sg documents with justice kagan -- >> those are solicitor general. i'm talking about the ones in the white house time. >> i'm not seeing a distinction. they're executive branch documents. there's one executive branch. >> one is involving the ongoing solicitor general. one more question here. you said rush decisions are not always the best in answer to the

discussion with senator lee. you think a good judge would grant a continuance to someone that received 42,000 documents on the day before the start of a trial? >> senator, that's a decision for the committee. i'm not familiar with the circumstances of the document. on the solicitor general, with chief justice roberts, it was not an active case. it was four years of documents from the time he was solicitor general from 1989 to 1993. it was my understanding it was those documents. my point is, it's not a new issue and it's not an issue for the nominee to decide. they're the former president's documents. >> why don't we move on to the executive power issues. yesterday i mentioned your submission to the university of minnesota law review. we thank you for making our law review so famous. in that article, you said a president should not be subject

to investigations while in office. you said in our meeting that congress would likely act quickly if the president does something in your wards dastardly, a word that you used in the article. i'm struggling with the practical implications of that. what about a president that commits murder or if she jeopardizes national security or he obstructs an investigation or white collar crime. how do you differentiate between these crimes when you characterize them as dastardly? >> there's several issues going on in that question, senator. the first thing i want to underscore is that what i wrote in the minnesota law review was -- in 2009 when president obama was president or becoming president, was thoughts on a variety of topics reflecting on my experience -- >> i want to pick up the tempo with my questions because i have so many of them. could we get to that point about the dastardly?

>> that was a proposal to be considered. it was not a constitutional position. i did not take any constitutional position on the issues you're raising. i want to underscore that. if a constitutional question came to me, i would have an open mind -- >> there's no clear text in the constitution that speaks to the question. so these are your own recommendations based on your own views and experience. would that be a fair -- >> there's two different things going on. the one is about special counsel investigations, for example, our criminal investigations. and/or civil lawsuits. that is a question for congress to consider, whether they want to supplement the protection provided by clinton versus jones because there's a lot of criticism. the second question getting to your point is what is an impeachable offense. that's a decision for you, not for me. because the house and the senate -- >> i'm figuring out how whether

we know something is dastardly or not if we can't investigate it? >> you're asking for is it a high crime -- >> i'm asking about your position that a president should not be subject to investigations while in office. >> the dastardly -- >> are you -- you're only saying that they should be subject to investigation as part of an impeachment and there's no other investigation that could occur? is that -- >> no. on constitutional position object criminal investigation and prosecution, i did not take a position on the constitutionality period. the idea that i talked about is something for congress to look at if it wanted. that's point one. point two is the idea that what is an impeachable offense.

that really is a question for the house and the senate. >> let me move on. this is about actual opinions and really along the same lines that i know senator coons will talk to you about. but in the seven sky v. holder case, i quote, this is you, "under the constitution, the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional even if a court has held or would hold the statute constitutional. so you told me when we had the comment in my office that you attempted to clarify your views two years later in the aiken county case. it seems inconsistent to me. is it the case your views as expressed in opinions, not law review articles, that a president can ignore a law and until a court upholds it or a

president can continue to ignore a law even after a court upholds it like you said in seven sky? >> ignore is not the concept there as i think we discussed when we met. when had a good back and forth on that. the concept is prosecutorial discretion. that's the concept that i referred to in aiken county opinion to explain the foot note you're referencing. in prosecutorial discretion is firmly rooted in the united states versus richard nixon case says the executive branch has the exclusive authority and absolute discretion whether to prosecute a case. that's an exact quote. heckler versus cheney says that that applies in the civil context. the limits -- prosecutorial discretion is well-recognized. in other words, the u.s. attorney's office might prosecute gang violence, but let low level marijuana offenses go

in terms of an exercise -- >> so you -- if a court has held a statute constitutional, do you believe a president should have to enforce it? >> so for example, let's talk about for example the marijuana laws. those are constitutional. but a u.s. attorney or the attorney general could say we're not going to devote our resources to low-level marijuana offenses. those are constitutional -- >> let me try one other example with you. the texas case on pre-existing conditions. the administration has taken the position that it's unconstitutional that part of the affordable care act, that insurance companies could throw people off of their insurance if they have a pre-existing condition. so let's say that that law is found to be constitutional. could the president choose not to implement the part of the law providing protections for pre-existing conditions?

>> senator that is a pending case. i cannot talk about it. >> okay. this is just my concern because of this expansive view of executive power and where it brings us. i want to move on to consumer issues. in 2016 you wrote an opinion that was later overturned by the full d.c. circuit. you found the consumer financial protection bureau unconstitutional. the majority recognized that millions of people were recognized by the financial crisis and they upheld this bureau and we know now in real time the bureau has helped about 30 million consumers obtain more than $12 billion in relief. you dissented in the case. i want to talk about the consequences of this legally. i know you focussed on the bureau's structure. you said that agencies like the cfpb amount to a headless fourth

branch of our government and they pose a threat to civil liberty. so as a follow, do you think the other independent agencies are constitutionally suspect? >> the supreme court is obvious upheld since 1935 humphries executive decision that the concept and practice of independent agencies. on the cfpb decision, the structure of that agency deviated from the traditional historical practice of independent -- >> you think the humphries case of 80 years ago is correctly decided? >> it's a precedent of the supreme court and it's been reaffirmed many times. on the cfpb case, i need to get this out. i did not say the agency had to stop operating. it can continue to operate and still operates. my constitutional concern is the structure with the single member

head, which had never been done before for an independent agency of that kind. my remedy would not have been to invalidate the agency at all but to have make that person removable at will. then you could have, if you wanted, amend the statute -- >> it also concerns me because other agencies like the social security administration, which you note in the dissent, in the opinion, they are also just headed up by one person. right? so does it follow that agency as well would be unconstitutional? >> again, senator, my -- go from the back door, which is the remedy, if there's a problem, is not that the agency has to stop operating. the remedy is that the person, a single person, would be removable at will instead of for cause. the agency would operate -- >> wouldn't have anyone heading it up? >> no. have a single person heading it up. but removable at will in the

case of the cfpb -- >> i would like -- [protesters in background]. >> i want to turn to what the majority felt about your dissent. i think they recognize that the dissent would threaten many if not all independent agencies. i think they specifically mentioned the ftc. i would add other ones like the federal reserve, securities and exchange commission, does it follow that you think these agencies are unconstitutional? >> i didn't say anything remotely like that respectfully, senator. all i was talking about was a single-headed independent agency. >> that's like social security. >> the sec, the ftc, those are the traditional, the ferc, the fed, multimember independent agencies.

so those agencies are all the traditional humphries executive agencies. the concern i explained goes back to your point about federalist 47. if you have an independent agency that is completely unaccountable to congress or unaccountable to congress or the president and one person in charge, that becomes an extremely powerful position. >> okay. social security has been like that for a long time. so my issue is, when we were talking about executive power, you talk about how congress has to step in. that's a lot of the argument that you made to my colleagues. senator sasse and congress has to step in. in this case congress stepped in. we have this major financial crisis. we started this. you done in a minority opinion here and you say that it's unconstitutional. i would throw another federalist society back at you. federalist quote. you quoted hamilton yesterday from federalist 83 when he said

the rules of legal interpretation are rules of common sense. right? >> yes. >> so it just doesn't make common sense to me that we would throw an agency out like that or -- >> but i did -- >> you're basically putting your judgment in the place of congress. >> but i didn't throw the agency out. i said the agency can continue operating as it was. the only change would be instead of being for cause remove value, would be at-will removal. there was a judge, not me, on the court that said because of that constitutional flaw, the whole agency had to stop operating. i specifically rejected that as a remedy and said no, the agency can continue to operate doing its important consumer functions. >> let's go to one where you did throw out the rules. that's net neutrality. right? that is in my mind the bedrock of a free and open internet and

allowing small businesses an consumers to have an equal playing field. but in your own person, you went out of your way to dissent against the protections. this was the full d.c. court against you. the rules were upheld by a panel of judges appointed by presidents from both parties. here you relied on something else you came up with something called the major rules doctrine. it's been mentioned in a 2015 case. in claiming that the fcc lacked authority to issue net neutrality rules because they were major in your own words. it feels to me like congress set up the fcc and they have -- the fcc is doing their job in a complex policy matter. they put forward the rules on net neutrality and you insert your judgment to say that they're unconstitutional. tell me why i'm wrong. >> the major rules doctrine is rooted in supreme court

precedent. as a lower court judge, i was bound to apply it. it was in the brown and williamson decision. in the god father of the major rules or major questions doctrine is justice brier that wrote about it in the 1980s as a way to apply chevron. the supreme court adopted that in the brown and williamson case, applied it in the uarg case, the one you referenced justice scalia's opinion. what that opinion says is it's okay for congress to delegate various matters to the executive agencies to do rules, but on major questions of major economic or social significance, we expect congress to speak clearly already such a delegation. that had not happened in my view with respect to net neutrality. i felt bound by precedent and therefore to apply the may -- >> the minor rules would be okay but not major. in a decision you say you'll know the difference when you see it. that's why the other judges on

the court from appointed by both parties went with the traditional view of how to look at this. you used the 1986 law review article by justin brier and from the king v. burrwell case in 2015. what i'm showing to show is this pattern to say, oh, congress should step in and do everything. you're stepping in in these cases. >> i would say it's a pattern of adhering to precedent. >> it seems to precedent when you look at chevron and i know the white house touted the fact that you overruled the federal agency action 75 times. and they said that you lead the effort to reign in executive agencies in the press release when you were announced. what does that mean, how you let the effort? >> i don't know. i don't know what that is referring to. i know my record. i'm sure i upheld agency decisions dozens and dozens and

dozens of time. we get agency cases. that's what we do on the d.c. circuit. i've upheld them, i'm sure, in the same range if not many more times. so -- and on the -- and so i think my record will show that i've ruled both ways on those kinds of cases. i don't think i have a pro this or pro that record. >> one last question in this area on consumers. so the major rule of doctrine raises questions to me about your view of chevron. if you know, it said 1984 case, federal law, i'll ask you that, where courts refer to reasonable interpretations of agencies. what would you replace it with if you're not going to uphold it? >> the precedent says that

courts should defer to reasonable agency interpretations of ambiguous statutes. the whole question of ambiguity, how much is enough. i wrote a law review article in the harvard law review about that problem of judges disagreeing about ambiguity and how much is enough. i also said that chevron serves get purposes in cases where it's an overlap with the state farm doctrine. statutory terms like feasible or reasonable are terms of discretion that are granted to agencies. the court should be careful not to second guess agencies. i've written an person where i made it clear the court should be unduly second guessing agencies. >> i want to move to campaign finance. those were the documents that i received and were able too make

public. i think they all should be made public, the ones -- i don't like this committee classification, what happened. but the chairman allowed me to make them public. in those documents, in one e-mail from march 2002, you discuss limits on contributions to candidates saying and i've heard very few people say the limits on contributions to candidates are unconstitutional. although i for one tend to think those limits have some constitutional problems. i just want to know, the buckley v.valeo case being settled law, it seems like you have some issues with those rulings. how do you view the precedent created by buckley and would you respect it? >> the buckley divide, as you know, senator is that expenditures on the one side of congress does not have substantial authority to regulation contribution limits on the other side. congress does have authority to

regulate and has done so. with respect to contribution limits, however there are cases where the contribution limits are too slow. so subsequent to the e-mail you're talking about, the supreme court has struck down the limits. one is randall -- >> none were these cases. >> justice brier right? >> yes. >> okay. i don't think -- there's buckley versus valeo. there's a lot of cases. mcconnell, wisconsin right to life, citizens united which flushes out -- >> my issue is that we've had past nominees that would -- when i heard your discussion with senator white house, you talked about how congress should step in again. we did. we tried and it was struck down with citizens united. and so that is a problem. we're left with nothing now but

a constitutional amendment. i personally view this as -- with a law-making from the court, the citizens united case. so i'm trying to figure out where you are on this. do you think contribution limits are a problem and could the reign of money be held in. >> there was one ruling against the rnc v. the sec. i rejected that challenge. another bloomin contributions by foreign citizens -- >> let's talk about that case. your opinion left open the possibility of unlimited spending by foreign nationals in the united states on issue advocacy. the same thing we saw by the russians. a russian company facing charges

actually cited your opinion in arguing to have these charges thrown out. does that concern you at all? >> our case dealt with contribution limits. that's what i was opining on in that case. i'm not sure there are -- the state of the law and the expenditure limits was not before us in that case. so i don't want to opine on expenditure limits -- >> that opinion was cited by -- >> i don't know if it was cited -- i don't want to talk about a pending case. my case, i upheld limits on contributions in the rnc case and in the bloomin case and the supreme court has upheld contribution limits generally but strike them down when they're too low in cases like randall and mccutchen. >> in light of the recent indictments, do you stand by

your campaign reform act in the bloomin case? >> i'm not sure -- >> you can go back to it on the second round. antitrust. senator lee and i are on the antitrust subcommittee. in recent years, we talk about this in my office. the supreme court has made it harder to enforce antitrust laws in cases like leon and american express. this could not be happening in my view at a more troubling time. we're experiencing a wave of industry consolidation, annual merger filings increase by 50% between 2010 and 2016. i'm concerned that the court, the roberts court, is going down the wrong path and your major antitrust opinions could have rejected challenges to mergers that majorities found to be anti-competitive. i'm afraid you're going to move

it further down that path starting with the 2008 whole foods case where they attempted to buy wild oats markets. very complicated. i'm going to the guts of it from my opinion. the majority of courts and temperature -- what happened here is republican majority ftc challenges a deal and then you dissent. you apply your own pricing test to the merger. my simply question is where did you get this pricing test. >> i would have affirmed the decision by the district judge in that case which allowed the merger. the district judge, judge friedman, an appointee of president clintons. case is very -- as we discussed, the case is very fact specific. turns on whether the larger supermarkets sell organic foods or not. that was -- >> where did you get the pricing test. could you have used different

tests and i'm trying to figure that out, what legal authority actually requires the government to satisfy your standard to block a merger. i think what i remember in our discussion, you cited these horizontal merger guidelines that you used to come up with this test. >> you're looking at the effect on competition and what the supreme court has told us at least from the late 1970s is to look at the effect on consumers and what is the effect on the prices for consumers. the theory of the district court and judge friedman in this case is that the merger would not cause an increase in prices because they were competing in a broader market that included larger supermarkets that also sold organic food. the question is there really an organic food market solely or is there a broader supermarket market. that's what the case -- >> i was trying to get to where that new test came from.

in the second case, you also dissented in the anthem case last year. your opinion would have allowed a merger between two of the four nationwide health insurance providers, which was eventually blocked because it would lead to higher prices for healthcare in the long-term and what was viewed as poor quality insurance. here you went a step farther than whole foods. instead of trying to raise the bar on what the government would have to prove to block a merger, you also tried to lower the bar for merging companies trying to justify their deals. your opinion suggested you would lowter bar for merging companies trying to move their deals will not harm competition. does that represent your views when it comes to mergers? >> it's a very fact specific case. the market in question there were two health insurers that were not selling health insurance in the down stream market but were acting as purchasing agents for players in the upstream market where they

negotiated prices with hospitals and doctors. so the theory of at least as i understand it, which i have agreed with is by having a stronger purchasing agent, they would be able to negotiate lower prices from hospitals and doctors for the employers. i pointed out at the end of my dissent, there might be a problem in the upstream hospital doctor market, but i did not think there was a problem in the market that was at issue in the case. i said i would have sent it back to the district court for analysis of whether the merger -- >> you did suggest the court should disregard two cases that have been widely relied on on the more than 50 years in antitrust, brew shoe and philadelphia and national back. you think courts applying these cases are wrong to do so? >> i think i the supreme court in the 1970s moved away from the

analysis in those cases because those cases focused on the effect on competition -- i mean, our competitors, not competition in the 1970s. the supreme court moved to focus on the effect on competition which in turn is really consumer -- what will be the effect on consumers. >> senator -- >> could i -- >> proceed. >> just this antitrust issue is very, as you know, very dense. again, i'm very concerned about what is going on with these cases nationally. then when i looked at these two cases, it appears to me that you would go even further. i think we need less mergers, not more. >> can i add one thing? when i referred to the overlap of state farm and chevron, that's what i was talking about. i wasn't sure that i was clear on that. >> senator cruz. >> thank you, mr. chairman. welcome back, judge kavanaugh. >> thank you, senator.

>> thank you for your service. before i get to questions, i want to take a minute to recognize and thank theout standing work of this hearing by the capitol police in terms of in a calm and professional manner dealing with the unfortunate disruptions we've seen and maintaining an environment where the hearing can focus on the record and substance of this nominee. thank you for the tremendous work that the men and women are doing here. >> we would like to second senator cruz that sentiment on our side as well. >> thanks very much. i've expressed it to many of the policemen individually as i see them. proceed. >> start his 30 minutes over. >> judge kavanaugh, let's start with just a general question. what makes a good judge? >> senator a good judge is independent, first of all, under our constitutional system.

someone that is impartial, who is an umpire, not wearing the uniform of one litigant or another of one policy or another. someone who reads the law as written, informed by history and tradition and precedent. the law is written informed by the canons that are settled in statutory cases, that treats litigants with respect, that writes opinions that are understandable and resolve the issues. civility helps make a good judge. a good judge understands that real people are affected in the real world. the litigants in front of them but also the other people affected by the decisions the judge decides or the court decides in a particular case. a judge -- a good judge pays

attention to precedent, which includes the predictability, reliance protected by the law. a number of things that go into making a good judge. a work ethic. it's hard work to the dig in and find the right answer in a particular case. that's critically important as well. judicial temperament. a lot of factors that go into it. that's -- those are some of them. i'm sure there's more. >> one of the things i was looking at, it's striking both overheated rhetoric we've heard from some of our democratic colleagues and the protesters the last two days. i took a look at your record compared to that of judge merrick garland. judge garland, of course, was appointed to the d.c. circuit by

bill clinton and he was president obama's nominee to the u.s. supreme court. what i found was striking. in the 12 years you've been on the d.c. circuit, of all the matters that you and chief judge garland had voted on together, that you voted together 93% of the time. not only that of the 28 published opinions that you've authored where chief judge garland was on the panel, he joined 27 out of the 28 opinions you issued when you were on a panel together. in other words, he joined 96% of the panel opinions that you've written when he was on a panel with you and the same is true in the reverse. of the 30 published opinions that chief garland has written on a panel, you've joined 28 out of 30 of them. over 93% of those opinions.

what is your reaction to those data and the level of agreement? >> we're trying hard to find common ground and as i have said before, he's a great judge a great chief judge. he's very careful and very hard working. we work well together. we try to read the statute as written, read the precedent as written. he's a judge who does not -- like i try to be as well, a judge not trying to impose any personal preferences on the decision but take the law as written. that's what i've tried to do in those cases. that probably explains some of that. i think it also goes back to -- i think judges are distinct from policy makers. that shows up when you dig into the actual details of how courts operate.

you know well, senator, from all of your arguments and seeing judges decide cases in real time. i think those statistics reflect the reality of how judges go about their business. the supreme court is a team of nine. i try to be a team player on a team of nine. there's going to be disagreements at time. of course, if you have the mindset where a court without sitting on different sides of an aisle, without being in separate caucus rooms, trying to find what the right answer is. there is a right answer in many cases. and maybe, you know, a range of reasonable answers in some others. that's what those statistics reflect to me. >> so you talked about the difference between your own policy preferences and what the law described. or mandates.

how would you describe a judicial activist? >> i would describe a judicial activist as someone who lets his or her personal or policy preferences override the best interpretation of the law. that can go in either direction. so a judge who strikes down a law as unconstitutional in the text and precedent don't support that result or a judge in the other direction who upholds the law is constitutional when the text and precedent would suggests that the laws in fact unconstitutional. so too in statutory cases, it's the same principle. when a judge does not stick with the compromises that you've reached and written in the text of the statues passed by congress and signed by the president but thinks the judge can improve on it in some way or maybe picks a snippet out of a committee report and says, well, i agree with that view in the committee report and i'm going to superimpose that on the text

of the statute passed by congress. that is to me the textbook definition of a judicial activist adding to or subtracting from the text as informed by the precedent. >> your time on the d.c. circuit, you addressed many opinions addressing separation of powers. why does that matter? why should an american at home watching this on cspan care about the separation of powers? >> people should care about separation of powers because it protects individual liberty. it's the foundational protection of individual liberty. we think of the first amendment, freedom of religion, freedom of speech as foundational protections of individual liberty. as justice scalia used to say, the old soviet constitution had a bill of rights, but it was meaningless in operation because they didn't have an independent

judiciary, they didn't have a separation of powers system to help protect those individual liberties. so it works in two ways, i think. first, the independent judiciary that helps enforce those rights. secondly, the whole structure as i've explaining tilts towards liberty in a sense that you start with a system, hard to pass a law to effect what you do or cannot do. hard to get a law through congress. that is by design. there's the bi cacameral presen. that was designed to present the passions of the moment from overwhelming and enacting a law based on the passions as opposed to a more difficult process. that all helps protect individual liberty. then even after you pass a law, the president has as discussed with senator klobuchar, the executive branch has

prosecutorial protection. who is protected. ultimately, it protects individual liberty. when the congress has passed a law and the executive has enforced a law, that doesn't mean you go straight to prison if you're charged with a crime. you go before an independent judiciary. and just to add further protections for liberty, you have the jury protections in the original text of the contusion and also reflected in the bill of rights. so in check after check after check, the constitution tilts toward individual liberty. the separation of powers ensures that there's checks on the branches. so what do we do, for example, members of congress don't serve for life. you have to run for re-election. that's a check, again, to help protect individual liberty to help ensure accountability as well too with presidents.

the documents are chocked full of protections of individual liberty and that's why the separation of powers matters. as much as the individual protections that are in the bill of rights and also in article 1 section 9, of the original constitution. >> how about the doctrine of federalism. you haven't encountered that as much on the d.c. circuit. can you say why federalism matters and why americans watching this hearing at home should care about the principles of federalism? >> federalism matters for several reasons, senator. again, it helps further individual liberty in the sense of additional protection. so let me give you an example. if the u.s. constitution only protects -- the fourth amendment only protects around unreasonable searching and seizures up to a certain line, your state contusion will

protect you further or your state legislature might protect you further. further protections of individual liberty. federalism operates in a different way, a laboratory of democracy in the sense of experimentation around the country that is not always the same views in texas that there might be in california, for example, on particular issues. so you have different laws in those states. also, i think the federalism serves the more general idea of the government that is closest to you for most of your day-to-day activities. my wife, of course, is in local government now as the town manager. federalism for the things that affect you on a daily basis, the paving of the roads, the leaf collection, the trash collection, the local schools, which is probably the most direct impact that many people have of the government. the local court system. my mom, of course, was a state trial judge.

the whole system of state government is most people's interaction with government. federalism in that sense makes -- ensures accountability. you know better usually, your local and state elected officials than you do -- and you can make your views known on whatever governmental issues is of concern to you. for example, the schools is a classic one. >> so what is the importance and the relevance of the tenth amendment? >> the tenth amendment is -- protects federalism in the sense that ensuring the states have independent sovereign -- they may clear, which is clear from the structure, but reinforces the idea that the states are sovereign entities that have independent authority under the

constitution. so your a solicitor general of texas. i know you represented the state where the sovereignty of the state of texas to pass its laws and to enforce its laws was critical. so sovereignty of the individual states is important for the people, again, both for the accountability, the local government and also for the protection of individual liberty. the tenth amendment underscores that and also makes -- helps underscore something else, which is the states can't be commandeered by the federal government. commandeering doctrine of the supreme court, which recognizes that -- this is from the structure as a whole and underscored. the federal government can't ordered states to do certain things that the states themselves have not chosen to do. that's an important part hoff the federalism principles and comes out of the constitution as well. >> what do you make of the ninth

amendment? robert bork famously described it as an ink blot. could you share that assessment? >> the ninth amendment and the privileges and immunity laws and the supreme court's doctrine of due process are three roads that someone might take that all really lead to the same precedent of the supreme court now, that the supreme court precedent protects certain unenumerated rights so long as the rights are as the supreme court said in the glocksburg came, rooted in history and tradition. justice kagan explained this well, that the glocksburg test is quite important for allowing that protection of unenumerated rights rooted in history and tradition which the precedent definitely establishes, but at the same time, making clear that when doing that, judges are not

just enacting their own policy preferences into the constitution. an example of that is the old pierce case where oregon passed a law that said everyone -- this is in the 1920s. early gone in the state of oregon -- every student had to attend a public school. a challenges brought by parents that wanted to send their children to a parochial school, religious school. the supreme court ultimately upheld the rights of the parents to send their children to a religious parochial school and struck down that oregon law. that's one of the foundations of the unenumerated rights dock trick folded into the glocksburg test and rooted in history and tradition. so how you get there is -- as you know well, senator, there's stacks of law reviews written to the ceiling on all of that, whether it's privileges and

immunity, ninth amendment. all roads lead to the glocksburg test as the test that the supreme court has settled on as the proper test. >> let's talk a little bit about the first amendment. free speech. why is that an important protection for the american people? >> it's one of the bedrocks of american liberty. the ability to say what you think, to speak politically, first of all, about a policy issue and to speak about, for example, who you want to support for elected office is a critical part of the free speech principle. but it's broader than that. it's the idea that there's no one truth necessarily. that