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tv   Washington Journal Jeffrey Peck  CSPAN  July 11, 2018 1:55pm-2:21pm EDT

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equal rights amendment and this disputed extension in its ratification deadline, why don't i instead write about this amendment that says when members of congress want to adjust their salaries, they have to wait until the next election. >> sunday night, at 8:00 eastern on c-span's q&a. taking a look now at the supreme court nomination and confirmation process, joining us at the table is jeff peck, who is former general counsel and staff director for the senate judiciary committee. good morning. thank you for being here. >> sure. pleasure. >> should also point out for the viewers you assisted senator joe biden, democrat from delaware, back in those days, in several separate confirmations processes for robert bork, justice kennedy, and clarence thomas. tell us first what you learned from those experiences on the committee as things progressed, and apply it to this current situation with brett kavanaugh. >> sure. i think what those hearings showed is that a nominee should
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be asked very specific questions and they should answer those specific questions. outside of -- with the exception of pending cases before the court, i think everything else is fair game. people tend to look at the bork hearings and say a nominee should not answer those questions because bork answered them and wasn't confirmed but i think the real lesson is from justice kennedy. he followed bork, his hearings did, he answered very specific questions and in fact he was confirmed 97-0. it seems quite extraordinary given today's environment, but not a single senator voted against him. >> you talk about specific questions. you write about the right questions in an opinion piece in the "washington post." asking the right questions. here's a look at it. what are the right questions these days for this nominee? >> well, i think the right questions today in some respects are very similar to what they were back in the nominations i worked on. what is your view on the fundamental right to privacy under the 14th amendment? that's the core of roe v. wade,
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it's also the core of justice kennedy's great decision which allowed -- which approved of same-sex marriages. so, the right to privacy for americans is at the core of many, many liberties. i think today, also, asking about presidential power, very important topic, particularly because this nominee comes from a list of the federalist society, which is very supportive of a broad and expansive view of the president. >> you do write that times have changed and in the last few of these nomination sequences, and hearings that the nominees weren't as specific. how come? what changed? >> i think nominees are being advised that the less they say the better. it doesn't get them in trouble. and they use this broad defense of cases that may come before the court, and i can't answer them, they may -- i may be disqualified. but the fact of the matter is, justice suitor, justice kennedy, and in fact justice thomas answered very specific questions from a variety of senators and
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they've never disqualified themselves from a case. so i think that defense is a bit of a canard. >> and your opinion is that a nominee who are refuses to answer these kinds of questions described in this piece must be rejected. one can only assume that the nominee has indeed made up his or her mind, otherwise he or she would have not been included on the list. they should just say no, you're saying. >> the senators have a constitutional duty, not just a right, a duty under the advice of consent clause in the constitution to probe the nominee. the president gets to appoint a nominee but the senate has an equal and important role and you can't fulfill that role without g getting a window into the nominee's thinking on constitutional philosophy. >> let's get the phones on. we have separate lines for democrats, republicans, and independents. we're trying to get a feel here for the process now of confirmation with hearings, visits to the hill, preparation for all of this with our guest who worked for quite a number of years on the senate judiciary
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committee from '87 to '92 and worked directly in several of these cases. here is one of the photos, "washington times," front page, all smiles here, jeff peck, brett kavanaugh and the vice president heading up for some official visits, and here's some sound of brett kavanaugh visiting with chuck grassley, who chairs the judiciary committee in the senate. here's what they had to say. >> i've just had a pleasant conversation with judge kavanaugh. he and i have not interacted a lot in our lifetime, so getting acquainted with him again is very important. he's a respected jurist and the court he sits on, outstanding opinions that i think are going to be gone through by every lawyer at least on our committee. we're going to have a thorough
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process. hopefully it's efficient. we get it done quickly. you know, but he's going to be thorough, and it's going to be done right, and try to do what we can to accommodate everybody's interest. in the end, i think his record speaks for itself. it is the most outstanding thing that affords this person a chance for confirmation in the united states senate. >> so, jeff peck, exchanging pleasantries with the chairman there but there are some important individual meetings come up with what the "wall street journal" calls seven key candidates. how important are these meetings, these visits to the hill? >> i think they're pretty important but they pale in comparison to the actual hearings. these are really sort of get to know you sessions. some senators use them simply to get a feel is the nominee a nice person or not. other senators will use them to say, look, these are the questions i'm going to ask and these are the answers i expect to get from you. >> and then the real work, the
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hard work begins. explain from your experience what it's like for the committee to prepare for a confirmation hearing and what is the nominee going to be doing between now and then? >> sure. for the committee, we have over 1 million pages of documents between all of judge kavanaugh's opinions, his speeches, his very prolific writer so the committee and the staff will be examining literally a million or more documents to get a sense of his views and provide the basis for questions. for judge kavanaugh, he's doing these courtesy visits, trying to obviously make a good impression while not overcommitting himself, and he will be preparing through murder boards at the white house, i'm sure, particularly as the hearing dates gets closer to determine -- to practice what his opening statement will be, to practice answers and that sort of thing. >> let's get to our first call for jeff peck. alex from lake charles, louisiana. independent caller. good morning to you. >> good morning. i had a question about your recent op ed. you gave a short speech a couple years ago at the brookings institute regarding the decision
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in citizens united, quoting a snippet of justice kennedy's opinion asserting that anyone with a functional brain could discern how wrong a statement was. so in light of your recent op ed, do you think that the holdings in cases such as citizens united and hobby lobby as well as the second amendment holdings are not as salient in time are also deserving of important questions regarding upholding a precedent and do you think that judge kaefvanaugh, i guess, has what you would call a functioning brain. >> i think he certainly has a functioning brain. i mean, he has a distinguished record. i do think those cases are certainly worth asking about, the three you mentioned, hobby lobby, heller, and citizens united are very significant decisions. i mean, this case -- the decision in citizens united is one that really has led to this incredible inflow of dark money into campaigns, which has done a -- made a pretty significant impact in terms of what our
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elections are like today. so, i do think those are very worthy subjects to probe, and i think judge kavanaugh should indeed answer them. remember, judge kavanaugh isn't the -- he's not the tip of the spear. he is the spear for the federalist society and the heritage foundation and others on the right who have been working since the early '80s to fundamentally change the supreme court and move its agenda far, far to the right. this gives the ultimate goal has been to give a hard right a control of the supreme court and judge kavanaugh, like i say, is the final kind of spear in that effort to take control. >> daniel from california, independent caller for jeff peck. good morning. >> good morning, gentlemen. i have a question about the nomination process itself. is the senate nomination process meant to sort of ferret out and make the public aware of a
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nominee's perspective on various issues, and is there any history of the senate not nominating or confirming a nomination and what happens if that were to occur? >> sure. on your letter point, you know, the recent history, one of the nominations i worked on was robert bork who was like judge kavanaugh in the d.c. circuit when he was nominated to the supreme court. judge bork, after extensive hearings led by then senate judiciary committee joe biden, he testified for five days, very extensive hearings, it really was essentially a seminar on constitutional law but ultimately he was voted down by the senate 58-42 and when that happens, the president then goes back to the drawing board and nominates someone else. after bork, he nominated doug ginsburg and then justice kennedy was nominated after a more extensive consultation between president reagan and senator biden and others in the senate and as i mentioned
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earlier, justice kennedy ultimately was confirmed 97-0. >> what do you make of the critique by some that the process already is rushed? >> well, i think it's hard to say that it's necessarily rushed at the moment. i think we have to see when hearings are set in the timing for that. so for example, i think hearings in the first or second week of august would be clearly rushed when you have a nominee whose record has more than a million pages to review. so that would be rushed, jamming him through the senate in a short amount of time. again, you have to have enough time for 100 senators to have a careful and exhaustive review of his record. >> that being said, "wall street journal" writes a senate deadline for kavanaugh, mr. mcconnell is saying he intends to have a vote in the fall and the goal should be to have a justice kavanaugh ready to sit on the high court by october 1st when the new term starts. this gives usual ample time to hold hearings. they go on to say 60 to 70 days is within the norm for previous
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nominees between nomination and confirmation. ruth bader ginsburg, 48 days. the average wait was 65 days. they go on to say that neil gorsuch took 66. democrats will object but barring some major revelation, this is a fair timeline for confirmation. senators sign up to take votes like this before the next election. your reaction? >> i don't agree with that. i think setting a date at this point, whether it's october 1st or september 27th, that's an artificial deadline. this justice is going to sit on the supreme court for the next 30 or 40 years. they are the swing vote in key cases involving americans' fundamental rights and protections. so, taking another month, taking another six weeks, whatever it is, you have to provide the time for an exhaustive review of judge kavanaugh's record. if he hadn't issued any decisions, if he hadn't written any speeches, if he hadn't written any articles, then there's less to review and you can expedite it based on that. but today, with a -- with the
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critical fifth seat in the supreme court, his voluminous record, and a far right agenda that's attempting to be implemented here, i think you take the time you need and don't set an artificial deadline. the court has had eight justices before. if they have eight justices again for a month or two, the world is not going to come to an end. >> back to calls for jeff peck. st. louis now, republican caller. andrew. we have some pictures of brett kavanaugh and the vice president as well that we can look at. go ahead, andrew. >> good morning. >> good morning. >> indeed we have an american empire. we built it by force, by maneuvering the political process to ensure our position in power and some cases we try to bind the name of development and defense aid. this is why i find american as the object of both envy and hated. we have to believe that all empires collapse because of our wrong decisions that our government has taken, we
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americans want to fill our gas tank, we have become disappoint. >> andrew, we do get the point here. we're talking about the supreme court nomination process. do you have anything to say about the nomination of judge kavanaugh? >> yes, this is important. we should not forget that iran is a powerful country and our government has to share its policy against iran. >> thanks for calling, andrew. we want to get back on topic here. explain something that was said by chuck schumer, brett kavanaugh has an obligation to share his personal views during confirmation hearings. do you agree with that? >> yes, i do, and that goes back to the op-ed and some of the points we've been talking about. those are his views on core constitutional principles. and that includes cases that are settled law. nominees, for example, will be asked whether they believe brown v. board of education, fundamental case in the supreme court's jurisprudence, is that settled law, meaning, should it be maintained?
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and justice -- most nominees will say, yes, of course it does. well, there's no difference between asking about brown v. board of education and roe v. wade. so when senator schumer talks about probing a nominee's personal views, i think he's exactly right and those are the kinds of questions that the hearings should allow for. >> looking for more of your calls. we'll keep the phone lines on the bottom of the screen. democrats, 202 -748-8000, the republicans, 748-8001, independents, 748-8002. our guest here in the studio in washington is jeff peck, former general counsel and staff director of the senate judiciary committee the years were '87 to '92. and in that capacity, he helped senator joe biden with preparing and going through these confirmation hearings for robert bork, anthony kennedy, david suitor, and justice thomas. "the new york times," mr. peck, reminds us that washington is no stranger to bitter and divisive judicial confirmation fights but
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the coming battle is likely to be intense and expensive. i wanted to ask you about money. how much does this cost, and how is it covered? >> well, i think it's going to be an expensive, expensive campaign in terms of outside groups. on the right, spending money to pressure senate democrats and moderate republicans. on the left, certainly, trying to flag and highlight key issues. so, how much total is going to be spent? i don't quite know but i'm guessing this nomination, in terms of outside group spending, will exceed prior nominations. >> how about the committee itself? it's currently structured in a certain way, but when one of these comes along, how does the work of the committee change? you mentioned the number of pages they have to read, but explain how that works. >> sure. well, the committee will -- on the republican side, led by chuck grassley, on the democratic side led by dianne feinstein, the members and staff will work together and decide, in an ideal case, who's asking which questions.
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in other words, you don't want to go down the dais and have four senators ask the exact same questions. so there's a bit of a divide and conquer strategy that both sides of the aisle will use in terms of their preparation. the republicans will be prepped to defend the judge kavanaugh without a doubt, and the democrats will probe the kind of -- probe his views and ask the kinds of questions that we've been talking about. >> what is this process like for staff? >> it's pretty much a full-time job. i can tell you on the four nominations woirked nominations i worked on, you disappear from your family and regular life for three or four months. it's an incredible experience, but it's very -- it's hard work and a long slog, particularly when you have this sort of record to go through. but for a lawyer on the staff of the senate judiciary committee, there's really nothing better than working on a supreme court nomination. >> was robert bork the most challenging of the ones you dealt with? >> i think it was the most interesting. i think clarence thomas was probably the most challenging, in light of the allegations that
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arose and sorting through that at a time, obviously, which is very different than it is today. but bork had a voluminous record. it was really like going back to law school and revisiting constitutional law, and you know, for a staffer, there was nothing better than doing that. >> let's get to jim. jim is in new york, independent caller for jeff peck. good morning, jim. >> yeah, good morning. yeah, i just -- couple of quick things. now, the senate was -- is 51-49, but with the senator mccain not being able to actually get to the senate, my understanding is he can't vote. now, that makes it 50-49 and i was just wondering, what about a situation where supposing more republicans, for some reason, a heart attack, a car accident or something like that, where the minority could actually become the majority. it just seems that there should be something where votes could be cast even if you can't make it to the senate floor. my second thing, just quickly --
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now i'm losing it. dog gone it. >> well, jim, let's get an answer to your first question. we'll see if you can recall the second one. go ahead, mr. peck. >> sure. in the senate, for votes on the senate floor, like what we're talking about here, you can vote by proxy. you have to be in attendance. if senator mccain, in fact, is not able to vote, then, yes, the republicans are down a number, but remember, you know, mike pence, as the vice president, gets to break a tie and i think under the scenario you were talking about, where more than one senator on the majority side, in this case the republicans, is missing, my guess is that senator mcconnell would postpone the vote until that senator was replaced either in a special election or appointed by their state governor, and he would wait for the republicans to have a majority again. >> jim, do you recall the other question? >> well, actually, that's what it was. and i know the vice president gets to cast the vote on the
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legislative issue. i wasn't sure if he gets to cast the vote on a confirmation like that, but you answered that question. that's good. >> thank you, jim. let's hear from george now in washingtonville, new york. george is a republican. good morning. >> hi. you know, i really disagree, because our constitution was written as a contract, expressed the relationship between our government and its citizens. it's a binding contract. there's no conservative, there's no liberal, supposedly, on the court. the fight is between whether there are people who believe the constitution should be interpreted the way it was written or it's a living document that we can just sort of interpret any time, any way we want to. now, in the past, multiple times, we've changed the document, we've amended it. we've passed multiple amendments. what's happened in the last 60,
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70 years is the liberal or left side have decided we don't really need to do that anymore. we'll go to the courts and have the courts find something in there. and like the whole privacy -- you have a right to privacy. that's not actually in the constitution. if you want to have it in the constitution, you can pass an amendment. if you want to have a right to abortion, you can pass an amendment. that's why we're still having the argument over a lot of these things. we don't have an argument over whether alcohol should be legal or not legal, because we passed it in an amendment. we don't have an argument, really, over who can be a citizen, who can't be a citizen, because we passed an amendment. and we've done that multiple times. so the whole -- the left is the one that's -- has the perspective of a liberal left court and in reality, it's the
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conservatives who want to go by that. if you want to change it, change it, and as far as talking before the senate, when kagan was asked a question about the heller decision, she said that was precedent and she would follow it. however, when it came time to vote on chicago, that would bring that to the rest of the nation, she voted against doing that. so, i mean, the left can certainly misrepresent their position, and we know that hillary, when she was running, said heller was wrongly decided, so no one believes that she would ever appoint anyone to the supreme court or would have appointed someone to the supreme court who would have upheld heller. so, with that, thank you. >> thanks. mr. peck. >> well, respectfully, is sir, i think you've presented a bit of a false choice. it's not simply whether the constitution should be interpreted as written or the left is making up rights.
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the constitution and understands of it evolve. if you go back to the 1770s, there was no question that the framers couldn't have thought about unreasonable searches and seizures of your car or your cell phone or a whole host of -- or semiautomatic weapons, so these are things that didn't exist then and judges have to apply the principles in the constitution to a new set of facts. in terms of the rights that you're talking about that aren't in the constitution, let's just take the right to privacy. the question i would pose to you is, do you want the government telling you exactly what you can do, for example, in your bedroom? do you want the government controlling who you can marry and your right to marry? because those are the sorts of things that are protected by the right to privacy under the 14th -- the due process clause of the 14th amendment and the 5th amendment. so, i think it's easy to talk about these, quote, fake rights that may exist, but in reality, these are the very rights that protect your privacy, my privacy, and the privacy of all
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americans. >> let's hear from chad in baltimore, democratic caller. hi there. >> hi there. thank you for taking my call. i just want to say to the guest, that was a fantastic response. >> thank you. >> absolutely. the constitution has to evolve based on things that 1700s, 1800s, we couldn't see so that was spot on and something that people need to keep in mind as we evolve, because things change so fast. okay. to my comment. i don't think it's fair to rush a confirmation vote within the 60 days citing a time frame. i agree with you that if there is an extensive record, we need to take time to learn about that and make an informed decision because this will shape so many decades, but i also don't think it's fair that mcconnell delayed obama's nomination on a moderate justice, much like kennedy, moderate justice, and here we
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are rush -- well, basically putting things through or trying to put things through before the threat of the midterm elections come about, and the republicans don't have -- might not have control of both the senate and house. i just don't think that's fair. it's very, very much something that i think everybody should be aware of. >> all right, thanks, chad. >> i think that's very well said. by the caller. you know, your point that we're talking about a swing seat on the supreme court, judge kavanaugh, i believe, is 53 years old. literally for the next 35 or 40 years plus control of the court with a far right agenda based on the federalist society list and their agenda and the heritage foundation and others on the far right. setting an art tisificial deadl is simply the wrong thing to do. you need to let the process play out, provide for an exhaustive review before the hearings, have
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the hearings take as long as are necessary in order to probe judge kavanaugh's views and then you put it to the vote in the senate. but setting an artificial deadline at this point seems to me the wrong way to go. >> speaking of review, mark wants to know, via twitter, what purpose is reviewing his e-mails, his work under kenneth starr or his work in the white house. there's plenty of information from his time on the appeals court and his rulings. >> i think as all the viewers know, there's a lot of opinions and thoughts that are expressed in e-mails and what you do in prior jobs and when you're putting someone -- giving someone life tenure on the supreme court for the next 35 or 40 years, their entire record is fair game and that's their record whether it's from the bench or the work they did at a law firm. you're trying to get a full and deplete picture of the nominee's views and i think all that work in a professional standpoint is fair game for review. >> jeff peck was former general counsel and staff


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