Kavanaugh: It protects all of us, but it's there especially to protect minorities.
Kennedy: The first question to ask as a textualist is if text is ambiguous or unambiguous.
Kavanaugh: If there's a canon of construction. Otherwise you just see what the best reading is.
Kennedy: How ambiguous does it have to be? Is there a principled way to compare clarity to ambiguity?
Kavanaugh: Judges should not be snatching ambiguity from clarity. That's one of my concerns about canons that depend on findings of ambiguity. Tey sound great in theory, but in practice there's not a good way to find neutral principles on how ambiguity.
Kennedy: You defined originalism as constitutionalism textualism.
Kavanaugh: You are trying to make it as objective as possible.
What would the original public meaning have been?
Kennedy: You are not looking at intent.
Kennedy: In DC v. Heller, Justice Scalia wrote majority opinion. Justice Stevens dissented. They both took an originalist approach. Scalia relied on founding era dictionaries and treatises. Stevens looked at the same documents, and linguistic professors and other items. Doesn't the originalist approach just require a judge to be a historian, and an untrained historian at that?
Kavanaugh: Heller was rare case because there wasn't a body of existing precedent, because it's been done before. The Second Amendment presented a challenge because of the prefatory clause, which required into how such clauses were used at the time.
The "well-regulated Militia" is the clause just being mentioned in this text for the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Kennedy: Would cameras in the courtroom help?
First time this has been addressed yet.
Kavanaugh: We have introduced audio on the DC Circuit.
Kavanaugh: I know other nominees have expressed openness to cameras, then changed their views, which gives me some humility about this.
Kavanaugh: I can't stand commentary on oral argument about justices leaning one way or another. I ask hard questions of both sides.
Kennedy: Didn't Justice Marshall say the people aren't fools? You have to trust the people sometimes, judge.
Kennedy: I do think the American people have lost confidence in the Supreme Court.
Kennedy: It's ironic for my generation that the only institution people have trust in is this military.
Kennedy: The people don't read Aristotle every day but they get it.
Kennedy: You're an originalist?
Kavanaugh: Yes, I pay attention to original public meaning, as well as precedent.
Kennedy: Are you willing to overturn precedent that you think conflicts with the original public understanding of the Constitution?
Kavanaugh starts to answer the precedent on precedent.
Kennedy: What if you come across a decision that doesn't go along with the original public meaning?
Kennedy: Can we agree that the First Amendment in the Constitution sets the floor, but the state constitution can give you a greater right?
Kennedy: In California, they don't have a state-action requirement. In a private shopping center, someone can go in and protest with a First Amendment right in the state constitution.
Kennedy: What happens if state constitution conflicts with U.S. Fifth Amendment property right?
Federal constitution trumps not only state legislation but also state constitutions, says Kavanaugh.
Kennedy: Justice Kennedy has called the internet the new public arena.
Kavanaugh won't answer a hypothetical about whether Twitter in California can censor its content.
The latest brief discussion got a bit in the weeds about internet regulation, then Kennedy cut Kavanaugh off to move on to Chevron deference.
Kennedy: How come courts have to defer to agencies?
Kavanaugh: I've pointed out some problems with practical applications. You're pointing out problem of where it comes from in the first place.
Kennedy: It encourages misbehavior.
Kennedy: Because it encourages forum shopping in looking for judges who will give deference for certain policies.
Kavanaugh gets a bit into the limits on deference and when it applies.
Kennedy: A single federal district judge can enjoin a nationwide law. [Our first audience interrupter in a few hours.]
Kennedy: What's the legal basis for that? A statute, or the Constitution?
Kavanaugh refers again to the "major rules" doctrine, which states that agencies shouldn't make regulations in areas involving major policy questions without specific congressional authorization.
Kavanaugh: This is an issue currently being contested in courts around the country, so better for me to say nothing about it.
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