Kavanaugh: Narrow severability is the norm unless Congress has specified a different intent or the law just wouldn't work.
Crapo: Chevron is court-made doctrine. The Administrative Procedures Act is a statute about findings of fact needing to be honored. Deference covers broad parameters.
Crapo: In Idaho, we are very concerned about the management of federal land.
Crapo: A strong economy and a strong environment can be achieved. We have different issues in the West that relate to differences in land ownership.
Sen. Hirono, D-Hawaii, now up.
Hirono: You've said you did not engage in any forecasts. But your writings have given pretty big signals.
Hirono: I was following Blumenthal's questioning. Is disagreeing with the president a concern to you?
Kavanaugh: I'm an independent judge.
Hirono: So you're saying it's not a concern.
Hirono: Is disagreeing a concern when it's not a case or controversy?
Kavanaugh: Judges stay out of politics.
Hirono: Any statement the president makes is political to you.
Hirono: Tillis asked you about the Rice case, which involves native Hawaiians. Hawaii felt so strongly about this that the people of Hawaii voted to create this office. It's in our constitution. You described the case to Tillis in a misleading spin, disparaging the trust obligation the state has to Hawaiians.
In Rice v Cayetano, the Supreme Court struck down a provision limiting to native Hawaiians the right to vote for the leaders of a state office.
Hirono: You said the state denied voting to citizens of Hawaii who were not of the correct race. Then you misstated the holding.
Hirono: Do you think Rice can be used to justify the argument that programs to benefit native Hawaiians are subject to strict scrutiny?
Kavanaugh: That was something I wrote in an email then. If that issue can before, I would have an open mind.
He would have to consider the circumstances of each individual case.
Hirono: My question was whether you would turn to Rice for programs to benefit native Hawaiians.
Kavanaugh: It would be analyzed in light of Rice and other precedents.
He would analyze the case under precedents in cases involving minority contracting regulations etc.
Hirono: You answered last night that it was 14th and 15th amendments. That's not what the court did and you seem to agree. You wanted it to be based on the 14th. That's not what they did. This reminds me of criticism lodged against you, that you apply the law as you want it to be, not what it is.
Kavanaugh: The 14th and 15th amendments both prohibit restrictions voting on basis of race, the 15th explicitly, the 14th in equal protection.
Hirono disturbed that Kavanaugh would cite that case as being based on the 14th Amendment when it was not.
Hirono: I would expect someone on the Supreme Court to be very careful in citing precedent. It is clear to me that you can't cite to this case being decided under the 14th Amendment. Clearly, it was not. You have been criticized for citing law as you wished it to be.
Hirono: In recent years, groups have received ability to impose views on others, most notably Hobby Lobby.
Hirono: In Priests for Life, court had to determine whether regulation substantially burdened employers. A third party was providing the contraception, and the employers merely had to fill out a form.
Hirono: Does the freedom of religion supersede other rights?
Kavanaugh: No, there's a three-part test.
Hirono: You determined that filling out a two-age form was unduly burdensome?
Kavanaugh: I found that the fines for failing to figure out the form in violation of their beliefs.
Hirono: The question is the form, not the fines.
Kavanaugh concluded that penalizing someone for failing to fill out a form because of their religious beliefs was overly burdensome, says Hirono, which defies logic.
Hirono: In both cases, you ruled against the women.
Hirono: In each case, you reached your desired outcome, which is against women's reproductive rights.
Hirono: You really want to limit a woman's reproductive rights.
Hirono: It was too much to fill out a two-page form, but not to force a girl to wait around until sponsor could be found.
Kavanaugh: I was following precedent.
Kavanaugh: Trying to follow the precedent in each case.
Hirono: Ideological viewpoints come into play over which precedents come into play. You said yesterday that Korematsu had been overruled in the court of history. Is that a valid way to overrule a case?
Kavanaugh: There wasn't a specific case.
Hirono: The chief justice said Korematsu had nothing to do with Trump v. Hawaii. Sotomayor said it did because court invoked ill-defined national security threat to justify discriminatory practice.
Hirono now talking about Trump v Hawaii, comparing the case to Korematsu. In both cases, she says, the president discriminated against a minority on national security grounds and the court did not look behind the president's asserted justification.
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