Judging Brett Kavanaugh and the Supreme Court with John Yoo

interview with John Yoo
Tuesday, September 4, 2018
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Recorded on August 28th, 2018. 

Is Brett Kavanaugh ready for the Supreme Court? John Yoo, Yale Law alumnus and Hoover Institution visiting fellow, breaks down Kavanaugh’s law career in the U.S. Court of Appeals. Yoo argues that the United States has concentrated too much power in the Supreme Court since the New Deal era legislation and that the Supreme Court is now more powerful than Congress and the President. Based off of Kavanaugh’s past career, Yoo predicts that Kavanaugh will help reign in the power of the Supreme Court and give it back to the states.

Yoo argues that based off of the Constitution, power to decide social issues should reside with states rather than the court. According to Yoo, prior to the New Deal era, the Supreme Court focused on regulatory issues rather than social issues. He argues that momentous social legal decisions like Roe v. Wade and Obergefell v. Hodges are meant to be left to the individual states to decide.

Yoo analyzes the records of the current conservative justices and predicts that Kavanaugh will side more often with Justice Thomas and Justice Gorsuch, interpreting the Constitution as it was written by the founders, rather than by the changing will of the people.

About The Guest:

John Yoo is a visiting fellow at the Hoover Institution, a visiting scholar at the American Enterprise Institute, and a professor of law at the University of California Berkeley school of Law.

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Peter Robinson:  After 30 years on the Supreme Court Justice, Anthony Kennedy stepped down this past summer.  In a matter of days, as we shoot this show, the Senate will begin confirmation hearings for the man President Trump has nominated to succeed him, Judge Brett Kavanaugh. Today, on Uncommon Knowledge, a student of the Constitution and of American Politics, will tell us what it all means. John Yoo, on Uncommon Knowledge now. ...

Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson.  John Yoo is a professor of law at the University of California at Berkeley, and a visiting Fellow, here at the Hoover Institution at Stanford. From 2001 to 2003, he served as Deputy Assistant Attorney General at the Justice Department's Office of Legal Counsel. Professor Yoo is the author of many books, including most recently, Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War. Professor Yoo appears often on Fox News, and he is also the co-star with Richard Epstein and Troy Senik of the popular podcast, Law Talk.

Peter Robinson: John Yoo, welcome back to this show.

John Yoo: Thanks Peter.

Peter Robinson: John, you are an alumnus of Yale Law School.

John Yoo: Don't tell anybody.

Peter Robinson: It's too late. It's too late. Listen To This, which comes from an open letter from Yale law students alumni and educators regarding Brett Kavanaugh, also a graduate of Yale Law School, and a friend of yours at Yale Law School. Here's a quotation, "We see...[in Judge Kavanaugh] an intellectually and morally bankrupt ideologue intent on rolling back our rights...People will die if he is confirmed." John?

John Yoo: It's ridiculous. People will die if he's not confirmed too. I mean I feel really bad for the faculty.

Peter Robinson: Couple hundred signatures.

John Yoo: Oh this is embarrassing, that I went to Yale Law School, and Brett went to Yale Law School, and this is the kind of legal writing. I would give it an F.

Peter Robinson: Okay, this doesn't even rise to the level of needing to be refuted. This is ridiculous on the face of it?

John Yoo: Just the idea that you can't confirm someone because people will die? We're all gonna die. I think what their ... it's not clear to me because it's so badly written, frankly.

Peter Robinson: But, a few paragraphs there earlier up, they were talking about abortion. I think the suggestion is, sort of what Teddy Kennedy argued about Judge Bork, that the return to the America of back alley abortions. I think what they're getting at with that line is that Judge Kavanaugh, might overturn Roe. We'll come to that, but go ahead.

John Yoo: This is a good way to understand Brett Kavanaugh, or any conservative who went to Yale Law School. That's the kind of environment if you're a conservative you are surrounded with all the time. So, if you're a conservative, you make it through there like a Sam Alito, Justice Clarence Thomas, and now I hope Brett Kavanaugh. You're gonna be really sure about your conservative beliefs because you get pounded on every day by people who are not only accusing you of killing people, but also do it in the most badly written English that you can imagine.

Peter Robinson: Alright. We'll come back to Judge Kavanaugh. Judge Kavanaugh will make up 85% of our conversation. But first, I'd like at least a brief assessment of Justice Anthony Kennedy. Nominated by Ronald Reagan, confirmed by a Senate vote of 97 to 0, and Justice Kennedy served on the High Court for just over three decades. Two assessments. Editorial on The Wall Street Journal quote: "Justice Kennedy...has provided the fifth crucial vote in the numerous cases defending...free speech and religious liberty.., gun rights, and property rights." Now, here's an editorial in National Review: "No justice was less willing to tie himself down to clear rules or a legal philosophy....The trademark of a Kennedy opinion was a verbal effusion that gestured toward profundity without overcoming confusion." In fact, that editorial carried the headline, Good Riddance to Justice Kennedy. And what is John Yoo's ... how do we evaluate Justice Kennedy?

John Yoo: I think I read both pieces when they came out. I tend to agree more with the National Review view. I'm not sure The Wall Street Journal would disagree. I don't necessarily agree they're in conflict there. Mostly because I hope to get published in one of them again in the future. No, but I think that The Wall Street Journal is really looking at the bottom line outcomes, where did Kennedy vote? And, I think National Review is looking at the deeper themes in the way he thought. I think many conservatives, including myself were very disappointed in Justice Kennedy. Because he did tend, I think, to try to vote the way he felt the American people, or American society wanted to go. Rather than more like a Scalia or a Thomas sticking to what the framers of the Constitution understood the document to mean when they ratified it. So, some cases that The Wall Street Journal that didn't mention. Abortion rights, and gay rights. Particularly, Obergefell, I think-

Peter Robinson: Obergefell decided what? 18 months ago now? It's the gay rights-

John Yoo: The gay marriage case.

Peter Robinson: Excuse me gay marriage, yes.

John Yoo: But, Justice Kennedy, if you're gonna look at his legacy in addition to free speech, I think his greatest legacy has been gay rights. He authored three opinions actually. With Obergefell, the right to gay marriage, being the pinnacle.

Peter Robinson: Lawrence. Right.

John Yoo: Yeah, Lawrence. And then an early case called Romer. God, did you go to law school Peter? Because you're sure acting like it.

Peter Robinson: Not to Yale.

John Yoo: No, you can graduate from Yale right now, because you mentioned two cases correctly.

Peter Robinson: So explain that.

John Yoo: So I think Justice Kennedy, created a right which the framers almost certainly didn't think was there. And really pitched this opinion to the idea that there are these evolving norms in society that have to be given respect by the court. This runs quite counter to the way conservatives, including your former boss, President Reagan said he wanted to do when he was appointing new Justices to the Supreme Court. Was to get them to stick to the constitutional text, it was understood. Not because gay shouldn't have rights, but it's because we want the legislatures to decide when Congress and the State Legislatures to decide that question. I think Justice Kennedy ultimately ... and this goes beyond what the Journal and National Review said, if he really stood for anything more than just how he came out in single issues. He stood for judicial supremacy. He stood for the idea that judges get the last word.

Peter Robinson: "What I say goes."

John Yoo: Yeah, "I get the last say on what the Constitution means." And because, now so many of our societal questions; religion, race, gay marriage, guns, all get sucked into the Supreme Court now. That made Justice Kennedy essentially on many questions more powerful than the President, and certainly more powerful than any single member of congress in deciding the rules that you and I have to live under.

Peter Robinson: You're a law school professor, grade him. A, B, C, D, E, F.

John Yoo: You know we had the same ... I think we had the same conversation when Justice O'Connor retired too. I think they're both gonna pass into history as average Justices, I think ... we'll look at the outcome of their votes, but I don't think we're gonna remember them for any theories, themes, so think of Scalia as the exact reverse.  Scalia didn't win very often actually. We don't think about, "Oh, how did he vote in this case? How did he vote in that case?" We remember him because of the arguments and the themes to his jurisprudence.

Peter Robinson: And because he wrote so brilliantly and argued cogently, I'm saying this as if I'm affirming or asserting it, but this is in the form of a question. That he actually ... let me ask you this? You once said to me, this is years ago, and I'm not even sure you remember it, I don't I've ever quoted it back to you. But, you once said to me something like, "Before Antonin Scalia was appointed to the Supreme Court, originalism, his fundamental view of the Constitution was considered laughable at elite law schools."

John Yoo: Yeah.

Peter Robinson: Such as Yale.

John Yoo: Yeah.

Peter Robinson: By the time Antonin Scalia died, if your law school didn't have two, or three, or four important originals on the faculty. Your law school was laughable. And so, the question would be a decade from now, will any kids at Yale Law School, your alma mater ... we keep going back to Yale, read Kennedy decisions and say, "He was right." Or, "I want to be able to reason the way he reasoned." Or, won't they even read his decisions?

John Yoo: That's the problem. I don't think there was any Kennedy school of thought. Just the way there was no O'Connor school of thought. They bounced around from issue to issue, Justice Kennedy changed his method from issue to issue, case to case. Some cases he was an originalist. Some cases like gay marriage, he was trying to get the pulse of the American people. There was no school of thought. That's why I think in the end, that's why he'll pass into history more of sort of an average Justice at best.

Peter Robinson: Alright. What's at stake now on the court? John Yoo writing a National Review: "With a fifth conservative justice...the last remaining branch of the federal government will have slipped away from liberal hands. And two of the four liberal justices on the Court are in their eighties." Justice Ginsberg and Justice Breyer, "For the first time in about eight decades, the country may have a truly conservative Supreme Court." Now, the first thing I wanna do is establish what you mean by truly conservative. I had to look it up, eight decades ago the Chief Justice was Charles Evans Hughes, and I don't have too much of a feel for the Hughes court, a few years before you've got Chief Justice William Howard Taft. I think what you're arguing is this is all pre-new deal-

John Yoo: Yes.

Peter Robinson: So what do you ... do you mean by that? You tell me, you tell me.

John Yoo: Yeah, so I think if you really wanna define what is a conservative court? It's a court that thinks it's main job is not to solve societies problems, not to articulate the norms of the American people, not to get involved all the time in every social dispute, even between the President and Congress. Not to have the last say on everything. But, a court that keeps its role limited to enforcing the meaning of the constitution as originally understood, in real cases and controversies that are between litigants. So, I don't think we're really have a conservative court since before ... since FDR, really pretty much destroyed the court during it's confrontation during the new deal. So since that time, think of the war on court. Even the Burger Court, even the Rehnquist Court. The Justices, I think a majority of them saw their job as much broader than that. As almost like they were statesmen.

Peter Robinson: John, you better take a moment to describe what happened under FDR, because on that account you gave, that's a critical moment in the history of the court. What happened?

John Yoo: Oh yeah, and we study it in law school, and it's still affects the court and it's image of itself to this day. So until 1936, the Supreme Court, actually blocked a lot of what's called the first new deal. Things like the Agricultural Adjustment Act, the National Recover - these were almost fascist int he way you look at it. Now, these were laws that gave all the power to regulate the economy to these government boards, which had a lot of private industrialists on it. They regulated to prices, quantities on all goods in the country. The Supreme Court, I think correctly said, "This is not within federal power, it's unconstitutional, it takes away natural rights, and the government can't organize itself to have private people exercise government." I think these were all correct. President Roosevelt attacked the Court, he won an enormous majority in the 1936 elections, two thirds majority in the House and Senate. And he said, "Hey, all those old Justices, they're from the buggy and whip era, they don't know modern technologies and the national economy, so I'm gonna expand the Supreme Court to 15 Justices." And he lost. He went to Congress, even Democrats, actually this is kind of what people say broke the New Deal Coalition. Southern Democrats refused to go along. FDR actually went and campaigned against them in the primaries, I don't know if that reminds you of anybody we have around today? But, all those senators and congressmen won, FDR lost, and FDR turned away from this project. But, at the same time the Supreme Court cracked. They flipped on all these issues and basically said, "We will no longer limit regulation of the economy. We're no longer protecting economic rights, and we're going to ..."  A few years later they said, "We're gonna spend our attention on social rights, and individual civil liberties, and move away from your right to contract, right to own property and things like that." So fundamental change. That's what leads us to gay marriage, abortion, being the focus of the court.

Peter Robinson: If that ... that happened. That is a piece of American history. So, if Justice Kennedy reasoned. I have my views of the constitution, but we know that if this court prefers the original meaning of the Constitution to the politics of the hour, the authority of the Court will be undermined and I have no choice but to look at the Constitution and at American politics. And Antonin Scalia, and Justice Thomas get to be originalist, because I'm a realist. I save the Court, time and time again. They get to get all the conservatives like John Yoo excited and say, "What purity". I'm the guy who is realistic enough to provide decisions that would stick.

John Yoo: Yeah, I think you nailed it. What's the date and time? This is the first time this has ever happened. I mean you nailed it I think precisely. Justice ... if you try to understand-

Peter Robinson: If it's plausible, there's something to it right?

John Yoo: Yes, yes. If you approach the job of being a Justice as a politician-

Peter Robinson: Right.

John Yoo: And you were worried about your legitimacy, and all the arguments FDR used against the Court. "You're not elected, why do you get to stand in the way of the American people, you should actually ... the Court should be in harmony with the American people." If you were a politician, you would think the way you just described, right? You would say, "I've got to balance the Court's right to be involved and to play it's Constitutional role." But, always worried about what the political system is gonna do in reaction to us. They always take away our power, and so you would try to keep the Court sort of in the middle of where the country is going. I think that's what Justice Kennedy thought he was doing. Every now and then, say on free speech, he might not have, but you could look at the polling, and I bet where he votes was pretty much where the middle of the country was. Take gay marriage for example, it's a great example. President Obama campaigned against gay marriage in 2008. By the time Obergefell's decided though, the polls had switched, and it's a generational thing. We're never going back I think to the world before Obergefell, because demographically young people support gay marriage in huge numbers. But, if you're a Scalia, I think or a Thomas, or an Alito, or even a Roberts, you would say the framers of the Constitution did not think they were creating a national right to gay marriage at the time. But, if you take that view, then in a way you're saying, "We can over ..." but, I don't think they were. I think in that case, they were actually saying, "It's up to Congress, and the State Legislatures, you decide. You don't have to be popular. Why should we always look to the Court to make these decisions for us. So I think the negatives, the downside of what you're talking about is you're right, you could balance the Court's role, make sure it's harmonious in our view. Guess who comes out of that more powerful than anybody? The Court.

Peter Robinson: The Court.

John Yoo: And the Justices.

John Yoo: So the thing about-

Peter Robinson: And the Justice, who's a swing above all.

John Yoo: Exactly. So the Thomas and Scalia view, I think in a way is a more humble view of what a judge's role is. Because it says we can't decide all these hard questions you guys decide them.

Peter Robinson: This brings us to Brett Kavanaugh, 53 years old. Yale College, Yale Law School. He's Yale, Yale. Clerk for Justice Anthony Kennedy. Helped to draft the so-called star report on the Bill Clinton scandal. Worked as a partner at Kirkland and Ellis, a big time firm. Served as staff secretary to George W. Bush in the White House, huge job. And has served since 2006 on the US Court of Appeals for the District of Columbia of Circuit, a court which is often called the second most important in the country. Does Judge Kavanaugh have your vote?

John Yoo: Oh yeah. And expect him to be confirmed by pretty much close to a party line vote.

Peter Robinson: Now John, you grew up in Philadelphia, you were always talking about the Phillies, and-

John Yoo: The Eagles, don't forget the Eagles.

Peter Robinson: That's right, the Eagles, and cheese steak. Do you have ... and here you are. There's a populous streak in you John Yoo. Judge Kavanaugh, Ivy League, you're Harvard, Yale, you can't fault him for that. But, he's living in Washington all his life. Does that bother you? Is he too much a product of a particular kind of elite? Of a limited circle?

John Yoo: Actually, I think that criticism is not just of Kavanaugh, but of all the Justices on the Supreme Court. Now, if you look at once Judge Kavanaugh joins the Court all the Justices will have gone to Harvard and Yale. So, I don't know how I didn't get on the court. I mean I went to both, I had my bets covered.

Peter Robinson: It ain't over yet John.

John Yoo: And so, they all went to Harvard and Yale. They all were lower court judges except for Elena Kagan who was Solicitor General. But, they all came up through this kind of professional training to be a Supreme Court Justice. The thing about the old grand days of the Supreme Court. You had former secretaries of state, you have like Charles Evans Hughes. Former Presidential candidates, or William Howard Taft-

Peter Robinson: Had been President.

John Yoo: Former President, a bad one, but a former President.

John Yoo: You had governors-

Peter Robinson: That's a separate show John, I'm gonna stick up for Taft, but go ahead.

John Yoo: Bring it on, I'm ready, I'm ready. So, you had more geographic representation of the country and the Court. So we have ... I call it technicratic court, it's a court of experts, techicrats all they've ever been, all they've ever wanted to be are judges. It's very unusual in our history ... actually, it's a republican conservative approach because after the war on Court, if you see the war on Court as the Court that really took all this power, pushed into all these social issues. That was the Supreme Court. Chief Justice Warren, former governor of California, politician-

Peter Robinson: Appointed by ... nominated rather, by Dwight Eisenhower.

John Yoo: Yeah. So, I think Nixon, but also this really came Reagan and Bush came forth. There's appoint judges, who have a record, you know what they are. They're not gonna be too activist and wild because they've been lower court judges, and have accepted the norms of judging not politics. I don't know if that came true. Justice Kennedy is a good example of how that didn't work.

Peter Robinson: Okay, against that's the ... I was in the Reagan White House during those nominations and there was no Federalist Society. You couldn't ... there was no way of vetting judges in those days the way that ... but this may be further to your point that Donald Trump turns to the Federalist Society and says, "Give me a list of good guys", and the people on that list are the kinds of people you've described because they're precisely the kinds of people whom you can track over 20 years, and see where they stand on the issues. That's something new.

John Yoo: Oh that's again, something that came about in the '80s as you say the Federalist Society created a kind of conservative alternative to what liberals have long had, which we call law schools. We train them to be liberal activists and so the Federalist Society is sort of an alternative, but you mentioned Trump, and I think we shouldn't forget that Kavanaugh, it's interesting. Trump outsourced the selection of the Supreme Court Justices for the first time, no president has ever done this, and he's kept his word. He has said, "I'm going to pick from this carefully vetted list of conservative judges, that the Federalist Society has really vetted." I think that's what swung a lot of conservatives on board the Trump campaign during the primaries, and Trump ... I don't agree with him on a lot of stuff; free trade, foreign policy, a lot ... domestic policy I'm ok - but, he's really kept his word on judges probably more than any other area of his administration. Kavanaugh and Gorsuch, are a product of that.

Peter Robinson: Alright. Let's go through if we could three or four cases, issues rather, not cases, but issues. And you tell me how you think a Justice Kavanaugh, if he's confirmed would handle them. The Affordable Care Act, Obamacare. Senate Minority Leader Chuck Schumer, democrat of New York, "We Democrats believe that the number one issue is America is health care...The nomination of Mr. Kavanaugh will put a dagger through the heart of that cherished belief..." What do you think?

John Yoo: First of all, Senator Schumer, when it's come to what he's been saying about Kavanaugh, has a grasp on reality that rivals Michael Cohen right now.  He is just so blatantly misstating things, and getting things wrong. I think it's all deliberate though because Schumer is a smart guy.

Peter Robinson: He's a highly intelligent man.

John Yoo: First of all the Supreme Court ultimately is not gonna rule on whether healthcare is a universal national right or not, that's up to Congress. When Kavanaugh was a lower court judge on the DC circuit, the Obamacare case actually came through their court before it got to the Supreme Court, whereas you remember Chief Justice Roberts voted with the four liberal-

Peter Robinson: Saved him.

John Yoo: Yeah, saved, I was very disappointed in Roberts on this. Kavanaugh actually did not strike the law down on conservative grounds, actually in the grounds that Justice Kennedy wanted to in the minority when it got to the Supreme Court. He actually tried to wiggle out of the case and say, "It wasn't ready for a judicial review." One thing he did say that actually liberals should appreciate, is that he said ... remember the whole case focused in the end on whether the $795 people get charged for not signing up for Obamacare, is that a tax or a penalty. Conservatives said, "It's a penalty and can strike it down."

Peter Robinson: Everybody said it was a penalty.

John Yoo: Obvious penalty. But, Chief Justice Roberts said, "No, it's a tax."

Peter Robinson: Therefore.

John Yoo: So it comes within Congress's almost unlimited taxing power.

Peter Robinson: Right.

John Yoo: Justice Kavanaugh agreed with him actually in ... it was Judge Kavanaugh, who first said in the lower courts, "Actually that thing is a tax." So Schumer and liberals should actually be applauding Kavanaugh.

Peter Robinson: And you disprove that?

John Yoo: I think he's wrong, they should be applauding Kavanaugh for that actually. He came out on their side in that case.

Peter Robinson: Okay, gay marriage. You've already discussed this a little bit, but ... here's a case where ... well let me give you a couple ... The Wall Street Journal, "We doubt...the Court will overturn...gay marriage. Even with a new conservative justice, Chief Justice Roberts...will certainly not want the Court to overturn the gay marriage case so soon after it was decided, lest it make the justices seem too political." Too soon to overturn it. On the other hand, heres what Chief Justice Roberts wrote in his descent when Obergefell was decided, and incidentally he did something, he'd been on the bench for a decade at that point. John Roberts did something he'd never done before. He read his descent from the bench, which is something they do in that body, demonstrate genuine anger. I think that's fair to say. "Just who do we think we are?...We are stealing this issue from the people." If Judge Kavanaugh becomes Justice Kavanaugh, where does he stand on Obergefell and gay marriage generally.

John Yoo: This is interesting because ... it's a great point because liberals are I think gonna all vote against Judge Kavanaugh in the Senate. They're attacking with these exaggerated claims. I think they're making a big mistake. Because Kavanaugh has no views as far as we can tell on Obergefell, on gay marriage, or abortion. He's a lower court judge in the DC circuit, you call it, "the second most important court in the land", which I think is right. Those kinds of cases rarely come up. So we don't have-

Peter Robinson: Largely administrative law.

John Yoo: Yeah, it's mostly government cases, cases against the federal government, cases about the power of the agencies. That's their bread and butter. So, we don't have any opinions. Much like, guess who? Justice Kennedy, at the time he was confirmed, we had no idea what he thought about abortion too. If I were the liberals, what I would do is vote overwhelmingly for Kavanaugh and wrap my gauzy arms around him and try to start persuading him about things like Obergefell, or things like abortion. This is what works for them, it worked on Kennedy himself. It worked on Souter, it worked on Blackmun. There are a lot of republicans appointed justices who've gone to the Supreme Court without firm views on these matters, and the conservative conspiracy theory is, "Oh the liberal press, and the law schools, and the bar, they start working on them. My judge, Judge Silberman, who I clerked for famously called it the "Greenhouse Effect" because Linda Greenhouse was the Supreme Court Reporter for the New York Times.

Peter Robinson: Yes.

John Yoo: You do what they like, you get praise, in all the popular media outlets. So, being in Washington has an effect of slowly dragging you over to the liberal side. So, Kavanaugh could be a Justice like a Kennedy. Some behind the scenes gossip, it was widely known that Justice Kennedy loves Kavanaugh, he's one of his favorite clerks. I think because he's kind of like him.  Kennedy, you know I think the gossip was that Kennedy when he announced his retirement went to see President Trump, he might've mentioned Kavanaugh as someone he oughta think about appointing. There's also gossip that Trump ... the White House is trying to send out signals that they probably would appoint Kavanaugh in order for Kennedy to retire at this point. So putting all that together, I would be shocked if Kavanaugh in his first three years as a Justice were to vote to overrule the very cases that his former boss, his mentor, the person he's replacing. Those are his important cases, those are the things people remember him for. Gay marriage, abortion. I would be shocked to see Kavanaugh vote early in his career to overthrow those very cases. Kennedy is the reason you could say he would be on the Supreme Court.

Peter Robinson: Abortion. Again The Wall Street Journal, "As for Roe v. Wade, the abortion case was a legal travesty." Roe, the '73 decision. As Judge Bork famously put it, "The decision in Roe v. Wade contains not a single sentence of legal reasoning." "Was a legal travesty and should be overturned. But the Court has upheld its core right so many times that the Chief Justice and perhaps even the other conservatives aren't likely to overrule stare decisis", that is the notion of a binding precedent. "On a 5 to 4 vote." By the way ... on the one hand The Journal, this is all from one editorial. On the one hand the Journal says, "Can't overrule Obergefell because it's too recent." Then a paragraph later, it says, "By the way, we also can't overrule Roe v. Wade because too old." We'll come to stare decisis in a moment.

John Yoo: Yeah.

Peter Robinson: So Kennedy is not on the court during Roe, but he writes the decision in Casey, where there was an expectation that the Court might actually overturn Roe in 1992. So your argument with Kavanaugh, as with Obergefell, so with abortion in general?

John Yoo: I think so.

Peter Robinson: But, that's so closely associated with Kennedy.

John Yoo: I agree. I think so, and I think what would happen actually is that what you'll see is states will try to limit abortion, regulate it more and more tightly, but you're not gonna see a state to try to outright ban abortion again. So, you'll see laws like the Partial Birth Abortion. Which, Kennedy voted to uphold, which prohibited certain kinds of abortion late in pregnancy. So you're gonna see efforts to regulate those kinds of aspects of abortions, and I expect Kavanaugh, like Kennedy would vote to uphold that right to regulation, but I bet states would ... unless they're really, really stupid, states should not try to ban abortion for a number of years, until you have this more incrementalist or gradualist approach. And again, it's because you don't know what Kavanaugh thinks about abortion, has no opinions about it. Has never written or said anything significant about it.

Peter Robinson: Alright. One more of these special topics. Judge Kavanaugh and Donald Trump. Another quotation from your favorite Democratic Senator from New York Chuck Schumer. "It is unseemly for the President of the United States to be picking a Supreme Court Justice who could soon be, effectively, a juror in a case involving the President himself." And by the way, Schumer makes that point in public a few days ago now, as we record this program. And a number of democratic senators have canceled their meetings with Judge Kavanaugh. "We shouldn't even be hearing these ... we should not even be holding hearings on this nomination."

John Yoo: They're doing Kavanaugh a favor.

Peter Robinson: So what about that-

John Yoo: Imagine how painful to have to sit through those meetings?

Peter Robinson: What about that as an argument?

John Yoo: It's actually kind of unclear what Schumer is talking about. Does he mean that Kavanaugh would somehow be a juror in Trumps impeachment trial? I hope not, because that's completely wrong, because the Chief Justice would sit as the trial judge. The Senators are the jurors. That doesn't make any sense. So maybe Schumer is trying to make, I don't know a different kind of point, which is a number of issues-

Peter Robinson: Do what John Roberts did in Obamacare. Try to construct this in a way that makes it sensible.

John Yoo: Oh don't get me started on that one. I think what maybe Schumer is saying and maybe other democratic senators are saying ... and this is an argument that's been coming out just in the last few days. There's something illegitimate about Trump being able to pick Kavanaugh because Trump's under investigation-

Peter Robinson: There may be some legal case that goes-

John Yoo: So all these issues might come up for the Supreme Court, yeah.

Peter Robinson: Right, okay.

John Yoo: So, one is that's very just hypocritical because did anyone say that about Clinton? Clinton's under investigation during White Water. He appoints Steve Breyer to the Court, while he's under investigation of White Water. He pointed Ruth Bater Ginsburg, when all that is starting to come out. Do we say Breyer and Ginsburg are somehow illegitimate justices? Its ridiculous. Because if you took that argument seriously then every presidential act is illegitimate. Because Trump's under investigation, I don't remember any democrats taking that view during the White Water investigations. Plus, let the investigations ... my point of view on this, is let the investigations continue. Let Mueller do his job, let it come to an end, but the President is the President, until he's removed from office by impeachment, his actions are all legitimate under the Constitution.

Peter Robinson: Got it.

Peter Robinson: Alright, a couple of big ones. First, the whole concept of a living Constitution. We've touched on it. Two quotations, the late Justice Antonin Scalia quote, "The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, things it ought to mean, but what it meant when it was adopted." Justice Stephen Breyer, "The Court should reject approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing..." Actually, Justice Scalia says, "Fixed at the moment of adoption, not framing", but close enough. "...Rather, the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances." Where does Brett Kavanaugh come down?

John Yoo: Oh I think Brett in the cases where he's written opinions, he comes down more on the Scalia side.

Peter Robinson: More on the Scalia side? So there's some ambiguity there?

John Yoo: Well, so I wouldn't say he's a scholar of the original understanding of the Constitution, but the opinions actually, which point on what he would do as a Justice and where his main thrust would be. It's actually quite consistent with Gorsuch and the other conservative Justices. Is what he really wants to do is constrain the administrative state. He's really attacked the roots of the Constitutional Doctrines that have given us this big welfare state. Those are unaccountable, ever-growing, federal regulatory agencies who do things like regulate ponds that appear in your backyard as waters of the United States and things like this. In those opinions, which he really seems to care about. He does then, he goes back and he looks at the original text of the Constitution, what did the framers think? What was the structure? His opinions in those areas looked very much like Scalia's opinions in those areas. He cites and relies on Scalia's fundamental opinions about the nature of the executive power, and prosecution and so on. But, he's has such a limited range of cases, we don't really know a lot about how he would approach the cases where I think Kennedy ran wild. These social issues, what does a due process clause mean? What does equality mean? We really don't have ... I think it's fair to say, we don't really have a clue what Kavanaugh thinks about ... those of where you would not be an originalist. Temptation is the strongest to leave the originalist reservation.

Peter Robinson: Okay. Onto the second big issue.

Peter Robinson: So, we've established that you're ... in the cases on which he has opinions ... he's an originalist. [crosstalk 00:34:37]. Got it, okay. So the question ... alright ... even among originalist, there is a big debate over stare decisis. Which, is the notion that precedent is binding. Once again, the late Justice Antonin Scalia said something about it that I'm still quoted ... Antonin Scalia will be quoted for centuries.

John Yoo: It's like enjoying a fine bottle of wine. You just open it, smell it, appreciate it. That's what his opinions are like.

Peter Robinson: Now, here Antonin Scalia is distinguishing his view of stare decisis, from that of Justice Thomas.

John Yoo: Whom I clerked for.

Peter Robinson: For whom you clerked.

John Yoo: Yeah.

Peter Robinson: And Justice Thomas and Antonin Scalia, you'd know more about this than I, but they're friends, they hold each other in high intellectual and personal regard and they're both originalists. But, they differed on stare decisis, quote: "I don't wanna say that Brother Clarence doesn't believe in stare decisis, but he doesn't much believe in stare decisis. He is willing to go back and get it right, even if we've gotten it wrong for a long, long time. I am" says, Justice Scalia, "On the other hand, inclined to acknowledge that any legal philosophy, whatever it is, has to make an exception for stare decisis. You cannot reinvent the wheel. So, for example, most of the decisions that have been made erroneously under the equal protection clause, or the 8th Amendment, or whatnot, I'm willing to say, it's water over the dam." Where's Brett Kavanaugh gonna come down on that?

John Yoo: So, that's a great question. So I tend ... in terms of what the right answer is, I tend to side with Justice Thomas. I think it's better, I mean of course the job is to get it right, I think that's affected very much by his view of segregation. Plessy v. Ferguson was wrong. The courts kept to it as stare decisis-

Peter Robinson: I hadn't thought of that, of course.

John Yoo: Until the 1950s, so Justice Thomas I think, and I think he's right on this is the Court should not stick to a Plessy v. Ferguson and have to wait all the way to Brown v. Board of Education the 1950s to go back to the original true meaning of the constitution, which is that the government cannot make distinctions on citizens race and skin color. I don't know what a stare decisis person who would say in that period between Plessy v. Ferguson and Brown v. Board of Education, which is a 60 year period. I think that's a fundamental challenge to people who believe in precedent.

Peter Robinson: Here's the closest I ever got to asking Antonin Scalia about that. I wish I thought-

John Yoo: No one never really got to ask him questions, you were just a prop for him to give his [crosstalk 00:37:15].

Peter Robinson: This is about the make your point. Because I found his position on stare decisis unsatisfying, intellectually unsatisfying. And I quoted GK Chesterton to him. Here's the quotation: "It is the job of liberals to keep on making mistakes, and it is the job of conservatives to keep them from being corrected."

John Yoo: That's pretty good.

Peter Robinson: And he laughed, but that's all he did.

John Yoo: Okay, because stare decisis doesn't really matter unless it makes you keep to a mistake in precedent. Precedent is correct that you come out to the same outcome anyway. So, I bet Kavanaugh, again it goes to our discussion about what do we do with gay marriage? What is he gonna do with abortion? I think on the issues that were really important to Kennedy and a part of his legacy. I could see Kavanaugh sticking to precedent. But, he's been trying ... again, in this area of administrative state where he's really been trying to overthrow a lot of the things that have allowed this monstrously large welfare state to grow out of control. He's been trying to extend precedent in new and unusual ways. To try to chip away at its foundations. So, to give you an example, you were in the Reagan White House, you remember the independent counsel investigation into Iran-Contra.  There was a huge case called Morrison v. Olsen, which called on the Court to strike down the independent counsel because it wasn't directly under presidential control. The Constitution gives the President only in the Constitution the job of supervising all law enforcement and all federal law enforcement. That's Scalia's finest moment, the Supreme Court, all of them vote to uphold the law, I think because of political pressure at the time.

Peter Robinson: 8 to 1.

John Yoo: I think 7 to 1.

Peter Robinson: Oh, 7 to 1, sorry.

John Yoo: Scalia is the lone dissenter, which is when he was the happiest. Everyone agrees Scalia was right by now. The Congress in the end doesn't renew the law, everyone realizes the defects of letting a prosecutor run wild without any check on budget personnel or jurisdiction.  Does it sound familiar to anybody nowadays? Anyways, Kavanaugh took Scalia's descent. And he used to it strike down the Consumer Finance Protection Board, that Elizabeth Warren's monstrous body that has the right to every mortgage, credit card, because that person. Kavanaugh said, "Is protected from presidential removal, but it's one person, and that person controls huge swaths of the American economy." So, in a way, Kavanaugh took what I think was the right original position, but it was the losing position in the independent counsel, and he's actually been resuscitating it, and using it to attack these different parts of administrative state. So they should give originalists some hope. Because if he was really faithfully applies stare decisis, he should not be striking down all those agencies, right? Because Morrison v. Olsen said, you can even have an independent prosecutor whose outside presidential control if Congress wanted. So, I think on those areas that he cares the most about, he's not gonna follow stare decisis, he'll be more like a Thomas, or more like Gorsuch has also been like this on the Court. So far Gorsuch has been voting a very high rate with Thomas, and less so with Roberts. So, maybe if you're gonna say, "What is Trump court look like? What is a Trump Justice like?" They're very suspicious of federal power, they're very suspicious of administrative state. They wanna return power back to local government and they seem not to be so swayed by stare decisis so far. That'll be Trumps legacy.

Peter Robinson: Drift toward Clarence Thomas.

Peter Robinson: Alright, this is hard because you know Brett Kavanaugh, we give him a grade. I asked you to grade.

John Yoo: I've known him for a long time. I thought you were gonna ask me all these personal questions about him. Like-

Peter Robinson: What kind of cologne does he use?

John Yoo: I'm sure it's Drakkar Noir. No ... it's a joke. So, we were in law school together. I actually ... when he graduated I took over his apartment, so I know what's under Brett's bed and I know what's in his closets. I can tell you, nothing, he's been running for the Supreme Court, since he's been 25 years old. Spotless. I would say Kavanaugh is a kind of person, I actually think is well suited to be on the Court. He's not revolutionary. He's not some kind of ... he's not gonna be like an Earl Warren and try to overturn everything.  But, he's gonna be more like ... in some ways Scalia kind of was like that, right? Scalia was kind of a revolutionary on the Court. Although, you would not have predicted it when he was on. I think Thomas was more of a revolutionary, even than Scalia is, but by being revolutionary they can't get votes. They could not get the majority of the Court to go with them. I think Kavanaugh is gonna be in between, he's not gonna be like a Kennedy, but he's not gonna be a revolutionary calling for an overturning of large amounts of doctrine, and precedent. I think he's gonna be closer to a Kennedy, he's gonna be closer to a precedent ... so I would probably say B+. Let me just say-

Peter Robinson: You're a hard grader.

John Yoo: Yeah, I'm a hard grader. Well I'm giving him a Berkeley grade or a Stanford grade, so it's inflated. I'll just say in Yale we were all friends together, because there were only six or seven.

Peter Robinson: Did you good grades at Yale?

John Yoo: No, of course not. There are only six or seven conservatives at Yale, so we would have lunch together. So I look back on those days now, so one is now the FBI Director, one is now the Secretary-

Peter Robinson: James Wray was at Yale Law?

John Yoo: Chris Wray.

Peter Robinson: Chris Wray, thank you.

John Yoo: And then the Secretary of Health and Human Services, Alex Azar, he was one of them.

Peter Robinson: Oh he was a Yale Law.

John Yoo: And Brett Kavanaugh, is gonna be on the Supreme Court. And then me, why did I get screwed I'm teaching law at Berkeley. Why wasn't I good enough.

Peter Robinson: John, you have the nicest life of anyone. Okay-

John Yoo: I know, they're all working much harder for me, for much less ... for far less pay. So maybe I won.

Peter Robinson: Couple last questions here. Where is this going? Let's stipulate that Judge Kavanaugh becomes Justice Kavanaugh, that he is confirmed to the Supreme Court. And the Court has the most conservative Court that it has had in eight decades. I'll tell you one more Scalia story. I was in a room, in which just a few months after he was elected to the Senate, Senator Ted Cruz of Texas stood, and started talking about the need to roll back New Deal Jurisprudence, to get back to exactly the era you're talking about, the era before the New Deal. And while Senator Cruz was speaking, Justice Scalia, who was seated about 10 feet away started singing, "beautiful dreamer." Everybody broke up, Ted Cruz sat down. So, whose right? Do we have a genuine prospect of rolling back, at whatever speed, of rolling back even New Deal legislation, or is that just a beautiful dream, but a dream?

John Yoo: I think that's actually gonna be the Trump legacy for the Supreme Court.

Peter Robinson: That's huge legacy.

John Yoo: It'll be a big impact, it's conservatives swinging for the fences as it were. But, it's not gonna happen all at once. But, you're gonna see I think first it's the Consumer for Protection Board, things that say federal agency overseas, all the accounts, parts of Obamacare, you're gonna see the most ... the Environmental Protection Agency extending its powers over backyards. You're gonna see, I think the outer limits of the Executive Branch, and these agencies start to get pulled back. Another area you're gonna see is ... and Kavanaugh has written about this Gorsuch has written about this, Thomas wrote about this. You're gonna see an end to judicial deference to what the agencies do. So when Congress gives power to the agencies, they use very vague language, and so the Courts and this was Scalia actually believed in this. The Courts would defer to the agencies in their interpretation of their powers and how they use them. Unless the law was clearly against it, they wouldn't stop the agencies. Kavanaugh has said clearly he doesn't believe in this, Gorsuch doesn't believe in this. Thomas and Alito don't believe in this. So, this will be the effect. The only limiting factor on this is gonna be Chief Justice Roberts, because he wouldn't go with the other conservatives on Obamacare, he worries about are we going too fast? Or, is what we're doing going to cause a political backlash? What are the other branches of government gonna say? What are the American people gonna say? Maybe the Chief of Justice has to think that way?

Peter Robinson: I was gonna add. Would John Roberts have been a better Justice if he'd been an associate Justice and not Chief?

John Yoo: Oh yeah, I think so. I mean I think many people, conservatives think that. I think he's become-

Peter Robinson: He feels an institutional obligation.

John Yoo: Yes, like take Obamacare, the right answer was that Obamacare was unconstitutional. Actually, they struck down four out of the five issues, and they only upheld it on this one tax. The gossip is, the rumor, it came out in the press that Roberts originally voted to strike down Obamacare to be the fifth vote.  Then Senator Leahy started attacking the court, this was incredible, the President of the United States was attacking the court before the decision even came out. Chief Justice Roberts changed his vote. On implausible grounds upheld Obamacare. So because of that, and that's the greatest expansion of regulatory power in the history of the country over any ... we took over one eighth of the economy ... one sixth of the economy. So, if Roberts isn't gonna go along with that, that was the moment to really reign in the administrative state. He's gonna be the one who's gonna be the gradualist. He will only, I think take this project as far as he thinks the American people or public opinion, or the other branches are going to allow it. Which is unfortunate because I think that brings us back to what you started with. The judge's job should just be, what does the Constitution say? How was it originally understood? How does it apply in the case? I wish they would not think about all these other considerations about what's the President think? What's Congress think? What do the polls show? I think that's the trap that Kennedy fell in, and I think that's a trap that Chief Justice Roberts is falling into.

Peter Robinson: Alright, so you've mentioned ... two last questions. You may dislike them both, but ... you mentioned the Trump legacy, and you also mentioned that two of the four remaining liberal Justices are both in their 80s.

John Yoo: Yeah.

Peter Robinson: I know that in politics a week is a long time. Is Donald Trump around for a period of months? Does he finish his first term? Or do you think it's more likely than not, that he'll be around for another six years. He'll get a second term. And that he'll get two more appointments to the Supreme Court.

John Yoo: Well I can tell you the constitutional answer, politics answer on whether he's gonna get reelected, that's all up to you Peter.

Peter Robinson: Oh John.

John Yoo: I'll bet you a hoagie or a cheese steak on the outcome just for fun.

Peter Robinson: We'll decide which side we take later with the cheese steak.

John Yoo: With cheese whiz, not with any feet New Hampshire Swiss cheese you and John Kerry putting Swiss cheese on the wrong sandwich in Philly. So, constitutionally he's gonna finish out his term. So one, if the Mueller investigation, say keeps going or suppose this Michael Cohen investigation in New York yield proof that President Trump, I think the worst case scenario is either Court-conspired with the Cohen fellow, this sorted bagman paying off hush money. Suppose he co-conspired to violate the campaign laws, or suppose Mueller concludes that Trump doesn't seem like there's any evidence that he conspired with the Russians, but he obstructed justice by firing Comey, which I don't-

Peter Robinson: Constitutionally, it's extremely dubious.

John Yoo: [crosstalk 00:49:14]. Yeah, I agree with you. But, suppose both those investigations yield recommendations the President should be prosecuted, the Constitution I think is pretty clear that the President cannot be prosecuted in office, unless he's been removed by impeachment. You have to impeach or remove someone first. Only then, can you prosecute a President. So, there's no way that these criminal investigations could remove President Trump from office before 2020. So the only way it could happen would be through impeachment. We have seen already constitutionally how difficult it is to impeach. Is what President Trump has done, a high crime misdemeanor within the terms of the Constitution? I doubt the actual, what he's been doing with Cohen actually rises to a high crime misdemeanor. And I don't think that firing Comey is a high crime misdemeanor because he's within his Constitutional rights to remove the FBI Director. But, you would have to have a trial in the Senate. First you have to have majority of members in the House vote to impeach, and then you would have a trial in the Senate. You would need two thirds to convict. I don't see the votes there. So, I think President Trump-

Peter Robinson: How many times has the Senate convicted a president in American history?

John Yoo: I think it's zero. But, came within one vote of President Johnson.

Peter Robinson: Right.

John Yoo: So, I ... he definitely finishes out his term. He may get one more seat on the Supreme Court, then if Justice Ginsburg, is not in the best of health and is quite elderly, doesn't make it to 2020. Then, you're the expert on the reelection, I mean who are the democrats gonna put up to beat Trump, you've got a growing ... I mean you've got an economy that's killing it, and most of my political science colleagues, if you were to put them under oath. They would say they believe that presidential election outcomes are really dictated by economic growth. How the economy is doing. More than any other issue. The economy keeps going up 4%, and the democrats put up Bernie Sanders, or Elizabeth Warren. Can you imagine what a great debate that would be? I mean President Trump is gonna use the word "Pocahontas" 30 times in one presidential debate. It'll be an all-time record. So I could easily see him getting reelected too just because the democrats aren't gonna put up a moderate. So then, I would think if you were a democrat and you love the Supreme Court and they care about it more actually than conservatives do. That's a defining issue for the reelection for them. Because I do think Trump will get two more seats if he wins reelection.

Peter Robinson: Right. So you think there's a good prospect that this Trump legacy on the Supreme Court will come to pass?

John Yoo: Mm-hmm (affirmative).

Peter Robinson: And you're delighted by that? Again, I know you well enough to know you have all kinds of reservations about Donald Trump, but on that point, you're a happy man?

John Yoo: Yeah, he's kept his word on appointments, and the people he's putting on the Court are people who are trying to rewrite the Constitutional balance back to the original understanding.

Peter Robinson: Which, brings us to the last question. You friend Brett Kavanaugh, republicans hold a majority over democrats in the Senate of just 50 ... excuse me, now that John McCain has died, it is 50 to 49 with one seat unfilled. We don't know how quickly the governor of Arizona will name a replacement for Senator McCain, but let's suppose it happens fast, so it'll be 51 republicans to 49 democrats, call it, what's the vote?

John Yoo: So I bet it'll be 54 plus whatever that is to make 100.

Peter Robinson: Okay, all the republicans hold the line, and pick up two or three-

John Yoo: All the republicans and I bet maybe one or two democrats who are in Trump states or running for reelection. So that's Manchin, Donnelly, or someone like that. Even, Nelson in Florida, or Heitkamp or wherever up, North Dakota.

Peter Robinson: North Dakota, she's behind in the polls right now.

John Yoo: Whatever part of the country is. But, if ... those senators vote against Kavanaugh, they're handing off an enormous issue to beat the hell out of him in the Senatorial Election. So I think Kavanaugh actually picks up two or three votes. The sad thing is, that up until about 10 years ago, Kavanaugh should've gotten and overwhelming majority because it's only been very recently really Gorsuch, and ... actually it's just really Gorsuch. But, maybe a little bit Alito, maybe Roberts, where senators are voting by party line on the Supreme Court confirmation. That's really never happened before.

Peter Robinson: Right.

Peter Robinson: John Yoo, Professor of Law at Boalt Hall at Cal Berkeley, and Visiting Fellow at the Hoover Institution. An Eagles fan.

John Yoo: Two Superbowl's in a row. You heard it here first.

Peter Robinson: I paid up, that last bet. Thank you, John.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge in the Hoover Institution, thank you.