Kavanaugh talking about Justice Kennedy, who encouraged him to teach.
Kavanaugh also names Justice Scalia, someone who changed statutory interpretation.
Scalia was a fierce protector of individual liberty, Kavanaugh says. Also Jackson and Rehnquist, who also worked for the executive branch.
Kavanaugh also saying that Thurgood Marshall got the real-world consequences better than anybody. Marshall helped achieve the end of Plessy and the greatest moment of Supreme Court history in Brown.
Flake: I worry that the president may be using executive power to advance personal political interest. We have to ensure that our institutions are independent.
Flake: What limits are there that would prevent the president from centralizing executive power and using it for his own political purposes?
Kavanaugh: The appropriations power. There are also remedies in the Constitution for how officers can be removed. There is no one who is guaranteed a permanent time.
Kavanaugh: There are also statutes that go beyond the Constitution.
Regulating war powers, government operations, etc.
Kavanaugh: Then there are norms and historical practices.
Kavanaugh: How has this been done before?
Flake: You've discussed the dangers of independent agencies with a single head. Is that the same for the executive?
Kavanaugh: That was a debate at the constitutional convention, between a multi-head executive and single president. This is why they put all the checks into the Constitution.
Flake is now asking about Trump's recent tweets criticizing Attorney General Jeff Sessions.
Kavanaugh says he will not comment on political events or controversies.
I think this is the first time today that Kavanaugh has invoked his inability to answer a question in response to a Republican senator.
Flake: Let me rephrase it. If you have an executive abusing his authority by instructing agencies to pursue political ends, are there any remedies other than political remedy involving Congress? I understand your aversion to the independent counsel statute. What other constraints are there?
Kavanaugh: The constraints on the executive generally are important. The appropriations power is a huge one. Confirmation of executive branch officials. The ultimate check is always part of the system [impeachment].
Flake: If president could fire special counsel, is that any restraint at all?
Kavanaugh: That was tested in 1973, and the system held.
Flake: You've suggested concerns with Chevron deference, which can allow agencies to stretch the meaning of the law.
Flake: How do you know when a statute is ambiguous?
Kavanaugh: That's a huge problem.
Kavanaugh: It occurred to me that a lot of disagreement with judges had to do with the view that a statute was ambiguous. It's hard to get neutral principles to find out when a statute is ambiguous.
Kavanaugh: This is something that Justices Scalia and Kagan both talked about.
Where is the ambiguity trigger? Kavanaugh cites Kagan again, this time for the idea that some judges find ambiguity more readily than others do.
Kavanaugh: You could have three judges on a panel who all agree that a policy is not the best reading of the statute, but they will disagree with whether the statute was ambiguous and so defer to the agency.
Flake: Arizona is 85% publicly owned at federal, state, or tribal level. So decisions the government makes has an outsized impact on a state like Arizona. Can you talk about these issues?
Kavanaugh: Kelo was controversial on the east coast as well.
Flake: On the Supreme Court, precedent only precedent until a new decision is made. Does Kelo have the same weight as Texas v. Johnson?
Kavanaugh: You start with the Supreme Court's own principles about precedent -- whether decision grievously wrong, inconsistent with other decisions, real-world consequences, reliance interests.
Kavanaugh: About Kelo, states in the wake of the decisions have addressed their own constitutions to prevent the taking of private property for non-governmental use.
Kelo was a 5-4 eminent-domain decision in which the court upheld a taking of private property for purposes of economic redevelopment.
Now Sen. Hirono, D-Hawaii
Hirono: Roberts has recognized that judicial branch not immune to problem of sexual assault. Since you became a legal adult, have you made any unwanted advances?
Hirono: Have you ever faced discipline or entered a settlement?
Hirono: Allegations came out last December at Judge Kozinski. Very explicit allegations of sexual harassment and assault. It went on for more than 30 years.
Hirono: His behavior became so notorious that professors warned female students not to apply to clerkships with him. It was an open secret.
Hirono: After the allegations came out, Kozinski resigned, which effectively ended the investigation.
Hirono now discussing email list that Kozinski kept for inappropriate material.
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