Kavanaugh: I would not throw out the agency. I said that the agency can continue operating but would need new head structure.
Klobuchar: Kavanaugh said in net neutrality case that agency did not have authority to issue net neutrality regs because they are "major rules."
Kavanaugh says his approach is rooted in Supreme Court precedent, citing several cases.
Klobuchar: There's a pattern of you saying Congress should step in and do something, but here you are stepping in.
Kavanaugh: I would say the pattern is following precedent.
Kavanaugh: I've upheld agency decisions dozens of times.
Klobuchar: What would Kavanaugh replace Chevron with?
Kavanaugh -- Doctrine says courts should defer to reasonable interpretations of ambiguous statutes. How much ambiguity is enough?
Klobuchar moving on to campaign finance now.
How does he view the Buckley v Valeo precedent?
Kavanaugh is explaining the Buckley divide between contributions and expenditures.
Kavanaugh: It is an important precedent, drawing a distinction between campaign expenditures and campaign contributions. Klobuchar is worried Kavanaugh thinks contribution limits have constitutional problems.
Kavanaugh: I've upheld contribution limits in two important cases on the DC Circuit.
Klobuchar: I am afraid you will move the Supreme Court even more down this path.
Klobuchar is getting into the weeds about how Kavanaugh came up with a pricing test for an earlier case.
Klobuchar: What legal authority requires the government to satisfy your standard for blocking a merger?
Kavanaugh: The Supreme Court since the 1970s has told us to look at the effects of mergers on consumers through prices.
Klobuchar moves to another opinion that would have allowed a merger between two health care providers, but which was actually blocked. Instead of trying to raise the bar for government to block mergers, Klobuchar says, you tried to lower bar for companies trying to merge.
Kavanaugh: It's a very fact-specific decision.
Klobuchar: You did suggest the court should disregard two important antitrust decisions by the Supreme Court.
Klobuchar: This antitrust issue is very dense, but I'm concerned about what's going on nationally, and it appears to me that you would go further. I think we need fewer mergers and more competition.
Now time for Sen. Cruz, R-Texas. He starts off by thanking the work of the police for dealing with the disruptions we've seen and for maintaining an environment in which we can focus on the substantive issues. Whitehouse speaks up for the Democrats to second that.
Cruz: What makes a good judge?
Kavanaugh: Independence, someone who's impartial, an umpire, who reads the law as written, informed by settled canons of interpretation, who treats litigants with respect, who writes understandable opinions
Cruz: It's striking the over-heated rhetoric from Democratic colleagues and protesters over the past two days. I looked at your record compared to Merrick Garland, Obama's nominee to the US Supreme Court.
Cruz: Of all the matters that you and Garland voted on together, you voted together 93% of the time. Garland joined 27 of 28 of panel opinions you wrote, and of 30 Garland wrote, you joined 28.
Kavanaugh: We are trying hard to find common ground. He's a great judge, a great chief judge.
Kavanaugh: I think judges are distinct from policy-makers. That shows up when you dig into the details of how courts operate and go about their business.
Cruz: Why does the separation of powers matter?
Kavanaugh: It protects individual liberty. As Justice Scalia used to say, the Soviet Constitution had a Bill of Rights that was meaningless because it did not have a separation of powers.
Why does federalism matter?
Again, it helps further individual liberty. If the US Constitution only protects up to a certain line, your state constitution might protect you further. It also provides a laboratory for democracy.
State and local governments also affect people on the most direct basis. Federalism in that sense ensures accountability.
Cruz: What's the importance of the 10th Amendment?
The Tenth Amendment protects federalism, reinforcing the idea that the states are sovereign entities with independent authority under the Constitution.
Also underscores that states can't be commandeered by the federal government to do things the states haven't chosen to do.
If Sen. Sasse yesterday said he wanted the hearings to be more like "school house rock," then Cruz's questions about the separation of powers and the different amendments are giving Kavanaugh a chance for exactly that. Minus the rhymes.
Ninth Amendment, privileges and immunities clause, and substantive due process provide avenues for protection of unenumerated rights.
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