Kavanaugh still listing limitations on presidential power -- presidents can't unilaterally take the country into war.
All significant wars except Korean War have been congressionally authorized.
Kavanaugh and Sasse are getting into the power of the president to bring the country into war.
Sasse: How often in the federalist papers do the founders write about the norms of our civics. Our jurisprudence should fit inside our civics, not our politics. We have a lot of pluribus, not much unum right now.
Sasse: If you look at survey data, huge shares of people don't understand basic civics. That's on us, not them. George Washington rebuked people for bowing before him.
Sasse: There are all sorts of restraints on executive personnel. That process works well because there's collegiality between Congress and the president in this respect. There are things where there's unity in hiring and promotion.
Kavanaugh: The president does not have unilateral power even to appoint members of the cabinet.
Kavanaugh: President does not have unilateral power to appropriate money.
Sasse: One reason the executive seems so powerful is because Congress has given away power. The founders made up the term "president" from "presiding officer," because there wasn't really a term distinct from monarchy for the framers to use.
Sasse: Difference between multi-member and single-head independent agencies?
Kavanaugh: Traditionally, the multi-member agencies were upheld. The CfPB was challenged for being headed by a single person. This is a departure from historical practice.
Kavanaugh: Having a single person in charge has an effect on individual liberty because that person can make decisions without accountability.
It will seem weird when a new president comes into office and can't appoint a new head of a single-person agency, says Kavanaugh.
The agency becomes a branch unto itself.
Sasse: Going back to Kagan's quote on Scalia, that we're all textualists now. What were they before being textualists?
Kavanaugh: Judges would try to figure out the general policy of the statute, then try to make the particular aspect of the statute fit that end. Judges would also use floor statements or other words to understand what Congress was getting at.
Kavanaugh: Justice Scalia had a profound affect on the Supreme Court and the lower courts.
Sasse: It's been said that you've been nominated to a swing seat.
Chairman Grassley has been over at the far (right) end of the dais, conferring with Sen. Tillis and Kennedy about something. Like maybe, would you two rather have your first round tomorrow? Probably just wishful thinking.
Sasse: What does that mean?
Kavanaugh: I've been nominated to replace Justice Kennedy, who was his own man.
Justice Kennedy did not like being referred to as the "swing justice." He once said, "the cases swing. I don't."
Kavanaugh: I think of the court as a team of 9.
Sasse: Took a picture of his aunt from a farmer growing up -- this helped him figure out who he was writing his dissertation for.
Kavanaugh: First, the litigants before us. I want the losing party to respect the opinion.
Opinions need to be clear and well organized.
Affected parties need to understand them.
Kavanaugh: Also the future parties affected by our opinions. I'm thinking about someone who just picks up the decision -- I want them to be able to understand. Also students who learn law from reading opinions.
Grassley calls for a 10 minute break.
Richard Blumenthal, Democrat from Connecticut, is now asking questions.
Blumenthal: Not a hypothetical, the president who indicted you is an un-indicted co-conspirator.
Blumenthal: Would you recuse yourself from cases involving Trump?
Kavanaugh: One of the principles we've talked about here is the independence of the judiciary. One key facet of that independence is not to make commitments on particular cases.
Blumenthal: I'm going to take your answer as a no. You will not commit to recusing yourself.
Kavanaugh: To be consistent to principles of independent judiciary, I need to be careful.
Blumenthal: I do disagree, and I am troubled by your refusal.
Kavanaugh: Decision to participate is itself a decision in the case, and he can't commit to how he would handle that decision.
Blumenthal: I want to talk about "Jane Doe," a 17-year old minor who escaped violence in homeland to come to this country.
Doe was eligible for an abortion under Texas law, but federal officials blocked her.
Forced to notify her parents, which Texas law did not require. Her pregnancy was four weeks further along when Kavanaugh panel ordered an additional delay. Reversed by full DC Circuit.
Blumenthal: Decision of your panel was overruled by full court of the DC Circuit. The opinion in that case commented, the barrier the government has interposed defies Supreme Court precedent.
Blumenthal: This also threatened her health because she could not have an abortion for weeks.
Kavanaugh dissent would have further delayed the abortion, says Blumenthal.
Kavanaugh disputes some details and reiterates he was trying to follow Supreme Court precedent on parental consent.
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