© Jack Gruber-USA TODAY

Looking To The Confirmation of Judge Kavanaugh To The Supreme Court

Hans Von Spakovasky, The Heritage Foundation

The Annie Frey Show
July 11, 2018 - 3:52 pm

CD: We've been talking about, well Kavanaugh, right, okay, the nomination, and I thought to myself, let's see here, who could I get I could get, the senior legal analyst at the Heritage Foundation a man. I've known over a decade plus, a man who is educated me on the law in so many ways through a President that didn't seem to abide by the law or didn't stay in his lane when it came to Article 2 Powers, he jumped in Article 1 Powers. I digress, only to say welcome, Hans Von spakovsky, senior legal analyst at the Heritage Foundation author of Who's Counting and Obama's Enforcer Eric Holder's Justice Department. That is, those are the two books he has written and Hans, thank you for being back on. I had you on regarding all of this before the nomination, first off what do you think about Judge Kavanaugh?

HVS: Oh, I think I you know, they're about to have the All-Star Game in Washington, and I think if you want to pick an All-Star team of Judges, good people who would apply the Constitution the way it's written and believe the rule of law, I mean he'd be a first-round draft pick for that. Look, he's got this terrific background including 12 years on the court of appeals for the District of Columbia. So, we don't have to speculate on how he's going to rule on issues. He's authored 300 opinions if you can believe that that that many on everything from the First Amendment to the Second Amendment to all kinds of other issues. I mean, if you name it and he's pretty much had a case on it.

CD: I have a couple questions. I'm going to open it up to callers and so they can get in on the action as well. But some things that have been pointed out. One the concern of his writings in 2009 regarding the prosecution of a sitting President and applying context to that because there are those on the left specifically, I believe Cory Booker and others who speculated, hey President Trump in a conspiratorial way, get on your tinfoil here everybody, the idea is that he doesn't believe that a President should be indicted investigated in and in the way of a criminal prosecution when he is a sitting President, and there seems to be a lot more to that story and applying that lot more, that context perhaps could clear things up, Hans?

HVS: Well, in fact, you know, the Washington Post is not exactly a conservative newspaper. In fact, it's very liberal and they just published a fact-checking piece on the claims made by Cory Booker and others and awarded them two Pinocchio's and said they actually were thinking of giving them three pinocchios for it not being true. Look, he wrote, the judge wrote or view article in which he talked about the importance of what the President and the key position he holds in the government and said that you know, it probably isn't a good idea for a President to be subject to civil lawsuits and criminal charges while he's the sitting President and if Congress felt that way Congress probably ought to pass a law to that effect. What we, what we know and what everybody else should know is that it is been the standing position of the US Department of Justice under both Democratic and Republican administrations that it's unconstitutional for a sitting President to be criminally indicted or charged. So, and that's again for for various reasons that explained to two different memos issued by the Justice Department. So, the current position of the Justice Department is a current President criminally indicted and charged. So, this isn't an issue. You know, Bob, Bob Mueller the special counsel, right? He has to abide under the regulations that govern special... he has to abide by Justice Department rules and regulations and that's the current real and it's been that way For over 40 years.

CD: And he also mentioned there are ways to hold the President to account if he steps out of bounds in a dastardly way.

HVS: Yes, and look, the reason for this may... look it makes perfect sense my from a constitutional standpoint, but the Constitution provides how a President whose who engages wrongdoing is removed from office. He has to be impeached and the theory the Justice Department has relied on, which I agree on, is that sitting President could be criminally charged or indicted you and essence would give one prosecutor anywhere the country the ability to in essence remove the ability of a President to do business and the, and therefore you're interfering with the choices at the American voters have made. Look, once a President has been impeached and removed from office. once he's no longer in office, then that immunity disappears and the President can be criminally charged and indicted, butl while he's a President, he can't be, and I said that's that's been the opinion of the Obama Administration the Bush Administration at the Clinton Administration. I mean you you go back that's been the opinion all along of the Justice Department.

CD: Another concern that has been voiced has been the Obamacare decision and the background for that or the foundation for that being allowed through Justice Kavanagh or Judge Kavanaugh's writings and that became apart of the foundation for  Justice Roberts justification and upholding the tax Obama of Obamacare in the constitutionality of Obamacare. Your thoughts?

HVS: Well, look, that was, that was a complex case and it in that case he in essence said that it was premature. What he actually said was that it was premature for the court of appeal that he serves on the District of Columbia. He said it was premature for them to be looking at the constitutionality of Obamacare because it was not yet in force. And he did say it is opinion that on of the things that needed to be examined was, you know, not just whether Congress that had or didn't have power to impose Obamacare under the Commerce Clause, but also whether or not the Congress would have the position to do that under the taxing authority. In essence, he really didn't, I don't think you can read that opinion as to him giving us substantive opinion on the constitutionality of a law. I mean, what he was basically saying was it's too early make the decision.

CD: He's talking about the courts reach and if it's in the courts realm and, and so it is very interesting in the parameters that he's drawn there with people jumping in and, and people can have their opinions someone who has their opinion is Zach and he wants to get in on the action on the Annie Frey Show and Zach, thank you for your patience. Do you have a question or comment for Hans Von Spakovsky senior legal analyst at the Heritage Foundation? Zach talk to me! Oh, Zach. Okay. Alright. We're going to try something else here. We're working on it getting through. Zach  No, I, I hear Zach, I just don't know if he's there. Okay. Well, we tried Zach and that's all we can do but we have more questions of course and I'm using the collective we. Hans I have more questions for you. There's been a obviously a lot of upset. And the Democrats I remembered the tax cuts were going to end my life and I was very concerned about that tax cuts of never ended lives, but I was concerned about it because people were adamant about it, and, and then I was told they were crumbs and I was like wait a second that doesn't make sense. But then I realized, oh, it's Nancy Pelosi, so that happens. I have, I'm going to play a montage a lot to say in a little time of the Democrats specifically and their response to Kavanagh and what they believe and I just want to get your thoughts on it but voice of sanity that can take this and say, okay, Crane, here's what you need to know.

>>The ramifications of this battle will last a generation and more. I'm going to fight this nomination with everything I've got. If you are a young woman in America, or you care about a young woman in America, pay attention to this. Because it will forever change your life. What is at stake is women's freedom. Our freedom to make our own decisions. Our freedom to decide when and how many children we are going to have. We are in the fight of our lives. So, this seems to be the of all the people the most self-serving person he could choose in order to protect himself from this criminal investigation. To avoid a constitutional constitutional crisis, we cannot let this confirmation process go forward.

CD: Speak to someone who has been hearing a lot from the left and regard to this and saying, hey, are they do they have a point where they say Roe v Wade going to be overturned and women's rights thereby are going to end which I've never really understood the link there. But please help me out here Hans walk me through it.

HVS: I just, look, some of these claims are so absurd. I mean that start with the second which, you know, I think we talked about a little bit, but this idea that that appointing Kavanaugh is a way of preventing Trump from getting indicted and me that's just completely and totally absurd. Like I said, that's not going to happen because the current Justice Department long time policy is a sitting President can be criminally indicted and Mueller has to follow that that rule. So, that, that is just not an issue at all. Even the Washington Post realizes that's, that's that's true. Look on the abortion issue, what are they think that a Supreme Court Justice when they're signed it and confirmed as a as a new Jusitice can suddenly issue an order overturning a 40 year to hear precident? Wwll, I know, you know if a lawsuit shows up in front of the court at some point down the road it involves abortion issues then it's something that all nine justices will have to look at and I just don't think, it's very rare that the court overturns a long time precident and they only do it when they have very good and very valid reasons to do that, and I just don't see that happening at anytime soon or anytime very quickly. What we are going to get our cases like Crane, the one we just had you know, we just had a case decided by the Supreme Court 5-4, Kennedy voting with the conservatives, which they threw out as a First Amendment violation this this state requirement, California that required pro-life organization to try to count to women on alternatives to abortion to push huge signs in, in their lobbies telling women that they had the ability to obtain free abortion services from the state government and it was clearly a violation of the First Amendment. Cases like that you, you make get.

CD: And we will see a return to if it is overturned or elements of it are then we will see it return to the states and that discussion. Final question, are the Democrats freaking out because they realize they weren't able tolegislate what they wanted and they relied on the courts and now they're going to have to go to persuading each and every one of us through substantiv debate and policy to say, hey, this is how we do things and not rely on the court to legislate.

HVS: No, you, you put your finger. That's exactly what's going on. Look, look the Supreme Court nominations used to not be these horrendous political fights. But what's happened in, in recent years is the court has taken upon itself to decide so many issues that should be decided by Congress and State legislatures. And the the progressive left has long ago decided that they couldn't persuade legislators, they couldn't persuade voters to put in policies they wanted, what is a thing to do was do was to sue, go to federal court, and have unelected judges make those policy decisions with the man and that's why they're freaking out about another conservative getting onto the court.

CD: So. don't freak out check out and get in the know. Hans Von spakovsky is his name his work is carried over the Patriot post and heritage.org at the Daily Signal, another outlet for the Heritage Foundation. And you sound all together reasonable Hans, so I think the scare tactics once again are met with truth and that is revealing, you as someone who says hey, it's the Constitution. It's okay. It's going to be all right. Thanks, Hans.