back judge Cavanaugh Thank You senator thank you again for your service before I got any questions I just want to take a minute to recognize and thank the the outstanding work of this hearing by the Capitol Police in terms of in a calm and professional manner dealing with the unfortunate disruptions we’ve seen and maintaining an environment where this hearing can focus on the record and substance of this nominee and so thank you for the tremendous work that the men and women here are doing mr. president I think we’d like to second and senator Cruz second that sentiment on our side as well thanks both of you very much I’ve expressed it to many of the policemen individually as I see them proceed starties 30 minutes over Judge Cavanaugh let’s start with just a a general question what what makes a good judge senator a good judge is independent first of all under our constitutional system someone who’s impartial who is an umpire who’s not wearing the uniform of one litigant or another of one policy or another someone who reads the law as written informed by history and tradition and precedent in constitutional cases the law is written informed by the canons of construction that are settled in statutory cases that treats litigants with respect that writes opinions that are understandable and that resolve the issues I think civility and collegiality help make a good judge a good judge understands that real people are affected in the real world the litigants in front of them but also the other people affected by the decisions the judge decides or the court decides in a particular case a good judge pays attention to precedent which is unconstitutional cases of course rooted in article 3 and critically important to the stability and predictability and reliance interests that are protected by the law so there are a number of things that go into making a good judge work ethic it’s it’s hard work to dig in and find the right answer in a particular case and I think that’s critically important as well judicial temperament there are a lot of factors that go into it and that’s those are some of them I’m sure they’re more one of the things I was looking at it’s it’s striking both overheated rhetoric we have heard from some of our Democratic colleagues and also from some of the protesters over the last to two days I took a look at your record compared to that of Judge Merrick garland judge garland of course was appointed to the DC Circuit by Bill Clinton and he was President Obama’s nominee to the US Supreme Court what I found that was striking is that in the 12 years you’ve been on the DC circuit of all the matters that you and Chief Judge garland have voted on together that you voted together 93% of the time not not only that of the 28 published opinions that you’ve authored where Chief Judge Garland was on the panel Chief Judge Garland joined 27 out of the 28 opinion opinions you issued when you were on a panel together in other words he joined 96% of the panel opinions that you’ve written when he was on a panel with you and the same is true in the reverse of the 30 published opinions that Chief Judge garland has written on a panel you’ve joined 28 out of 30 of them over 93% of those opinions what is your reaction to those those data and the level of agreement well I think we’re trying hard to find common ground and to as I’ve said before he’s a great judge a great chief judge and he’s very careful and heart very hardworking and we work well together and try to read the Judah’s written read the precedent is written and he’s a judge who does not like I try to be as well judge who’s not trying to impose any personal preferences on to the decision but take the law as written and that’s what I tried to do in those cases and that probably explains some of that I think it also goes back to I don’t think I think judges are distinct from policy makers and I think that shows up when you dig into the actual details of how

courts operate and go about their business you of course know well senator from you know all your arguments and seeing judges you know decide cases in real time and I think those statistics reflect reflect the reality of how judges go about their business I’ve said several times I think of the Supreme Court as a team of nine and we try to be a team player on the team of nine that of course are going to be disagreements at times so I don’t to overstate but if you have that mindset of where a court without sitting on different sides of an aisle without being in separate caucus rooms trying to find what the right answer is I think there is a right answer in many cases and maybe you know a range of reasonable answers and some others and I think that’s what those statistics reflected me so you talked about the difference between your own policy preferences and what the law described or mandates how would you describe a judicial activist I would describe a judicial activist as someone who lets his or her personal or policy preferences override the best interpretation of the law and that can go in either direction so a judge who strikes down a law as unconstitutional and the text and precedent don’t support that result or a judge in the other direction who upholds a law is constitutional when the text and precedent would suggest that the law is in fact unconstitutional so to in statutory cases it’s the same principle when a judge does not stick with the compromises that you’ve reached and written into the text of the statute passed by Congress and signed by the president but thinks the judge can improve on it in some way or maybe picks a snippet out of a committee report and says well I agree with that review view and the committee report and I’m going to superimpose that onto the text of the statute passed by Congress that’s to me the textbook definition of a judicial activist adding to or subtracting from the text as informed by the precedent your time of the DC Circuit you’ve written a number of opinions addressing separation of powers what a separation of powers matter why should why should an American at home watching this on c-span care about the separation of powers on people should care about separation of powers because it protects individual liberty it’s really the foundational protection of individual liberty we think of the First Amendment freedom of religion freedom of speech as foundational protections of individual liberty but as as justice scalia used to say the old soviet constitution had a bill of rights but it was meaningless in operation because they did not have an independent judiciary they did not have a separation of powers system to help protect those individual liberties so it works in two ways I think are more than two ways first the end of the independent judiciary that helps enforce those rights secondly is the whole structure is I’ve explained tilts toward Liberty in the sense that you start with a system it’s hard to pass a law to effect what you do or cannot do hard to get a law through Congress and that’s by design there’s a the bicameralism principle housed in a Senate and as well as adding the president was designed to prevent the passions of the moment from overwhelming and enacting a law based on the passions as opposed to a more difficult process that all helps protect individual liberty then even after you pass a law the president has so I was discussing with senator Klobuchar are some prosecute or that executive branch has prosecutorial discretion when and how to enforce particular laws who is protected by prosecutorial discretion ultimately it protects individual liberty and then even when the Congress has passed a law and the executive is enforced to law that doesn’t mean you go straight to prison you go if you’re charged with a crime you go before an independent judiciary and just to add further protections for liberty you have a jirt the jury protections that are in the original text of the Constitution and also reflected in the Bill of Rights so in check after check after check the Constitution tilts toward individual liberty the separation of powers also ensures that their checks on the branches so what do we do for for example members of Congress don’t serve for life you have to run for re-election and that’s a check again to help protect individual liberty to help ensure accountability as well so too with

presidents so the the documents just chock-full with protections of individual liberty and that’s ultimately why the separation of powers matters as much as the individual protections that are in the bill of rights and also in article 1 section 9 article 1 section 10 of the original Constitution how about the doctrine of federalism that that’s been an issue you haven’t encounters as much serving on the DC Circuit but can you share with this committee why federalism matters and again why why Americans watching this hearing at home should should care about the principles of federalism federalism matters for several reasons center again it helps further individual liberty in the sense of additional protection so let me give you an example it that if the US Constitution only protects the Fourth Amendment protects you’re against unreasonable searches and seizures up to a certain line it’s possible that your state constitution will protect you even further under that or your state legislature might protect you further so further protections of individual liberty federalism also operates in a different way a laboratory of democracy in the sense of experimentation around the country that’s not always the same views in in Texas that there might be in California for example on particular issues and so you have different laws like yes and different laws in those states and also I think the federalism serves the more general idea of the government that’s closest to you for most of your day to day activities my wife’s of course in local government now is the town manager but federalism for the things that affect you on a daily basis the paving of the roads the leaf collection the trash collection the local schools which is probably the most direct impact that many people have the government the local court system my mom of course was a state trial judge the whole system of state government is most people’s interaction with with government in federalism in that sense makes ensures accountability because you know better usually your local and state elected officials than you do and you can therefore make your views known on whatever governmental issues is of concern you for example the schools is a classic one so what is the importance and the relevance of the tenth amendment the tenth amendment is protects federalism in the sense of ensuring that the states have independent sovereignty they make clear which is also clear from the structure but reinforces the idea that the states are sovereign entities that have independent authority under the Constitution and that they have the status as separate sovereigns under the Constitution and so your Solicitor General of Texas of course and I know you represented the state of Texas in many cases where the sovereignty of the state of Texas to pass its laws and to enforce its laws was critical and the sovereignty of the individual states is important for the people again both for the accountability the local government and also for the protection of individual liberty and I think the Tenth Amendment underscores that it also makes it helps underscore something else which is the states can’t be commandeered by the federal government commandeered is commandeering doctrine of the Supreme Court which recognizes that and this is from the structure as a whole and underscored but the federal government can’t order States to do certain things that the states themselves have not chosen to do and so that’s an important part of the federalism principles recognized by the Supreme Court and that comes out of the Constitution as well what do you make of the 9th amendment Robert Bork famously described it as it as an inkblot do you share that assessment so I think the ninth amendment and the privileges and immunities clause and the supreme courts doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the Supreme Court now which is that the Supreme Court precedent protects certain unenumerated rights so long as the rights are as the Supreme Court said in the Glucksberg case rooted in history and tradition and Justice Kagan explained this well in her confirmation hearing that the Glucksberg test is is quite important for allowing that protection of unenumerated rights that are rooted in history and tradition which the precedent definitely

establishes but at the same time making clear that when doing that judges aren’t just enacting their own policy preferences into the Constitution and an example of that is the the old Pearce case where Oregon passed a law that said everyone in the state of Lucas in the 1920s everyone in the state of Oregon had to attend every student had to attend a public school and a challenge was brought by that by parents who wanted to send their children to a parochial school religious school and the Supreme Court ultimately upheld the rights of the parents to send their children to a religious parochial school and struck down that Oregon law and that’s one of the foundations of the unenumerated rights doctrine that’s folded into the glücksburg test and rooted in history and tradition so how you get there is there as you know well senator there’s stacks of law reviews written to the ceiling on on all that whether its privileges and immunities substantive due process or ninth amendment but I think all roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test let’s talk a little bit about the First Amendment free speech why is that an important protection for the American people the bedrocks of American liberty the ability to say what you think to speak politically first of all about policy issues and to speak about for example who you want to support for elected office is a critical part of the free speech principle but it’s broader than that it’s the idea that there is no one truth necessarily that one person can dictate from on high in terms of policy issues or social issues or economic issues and that the truth or the least the best answer emerges after debate and over time and that freedom of speech is important to help advance that cause of the debate and it’s important just as an individual matter I think to have that protection written into the Constitution because you may have an unpopular view at a particular point in time and if that were view were suppressed that view would never take hold even though that view would be the better of you and so it’s a particularly important in the Supreme Court precedent I think to protect unpopular views or views that seem out of fashion or out of fashion at a particular moment in time because of both the inherent dignity that that provides to individual people but also for the broader purpose of that advances societal progress or economic progress or social progress most good ideas were unpopular at one point or another and take time to take hold in and I think the framers understood that look they were look at where they came from and and how they had to fight against suppression of speech and suppression also of religious liberty of course in how they came about so for the free speech is critically important I think again Justice Kennedy and Justice Scalia in Texas versus Johnson what could be you know more unpopular than burning the American flag and yet they a pal the right to do that not because they liked it and that’s the whole point of Justice Kennedy’s concurrence but because they thought the First Amendment had to protect the most unpopular of ideas in order to accord with the precedent and principle of free speech so you mentioned religious liberty religious liberty is is one of our fundamental liberties cherished by Americans across the nation the right to live according to our faith according to our conscience can can you share your views on the importance of religious liberty and and how the Constitution protects it yes Center and to begin with it’s important in the original Constitution even before the Bill of Rights that the framers made clear in article 6 no religious test shall ever be required as a qualification to any office or public trust under the United States so that was very important in the original Constitution that the framers thought it very important that there not be a test to become a legislature to become an executive branch official to become a judge under religion recognizing the the religious freedom at least to serve in public office and then of course in the First Amendment to the

Constitution ratified in 1791 the principle of religious liberties written right into the First Amendment to the Constitution and the framers understood the importance of protecting conscience it’s a akin to the free speech protection in many ways and no matter what God you worship or if you worship no God at all you are protected as equally American as I read wrote in my new dau opinion and religions if you have religious beliefs religious people religious speech you had you have just as much right to be in the public square and to participate in the public programs as as as others do you can’t be denied just because of a religious status and the Supreme Court has articulated that principle and in a variety of different ways in particular cases you look at for example in other countries around the world you know in China for example you so if you look at other countries around the world and you’re not as you’re not free to take your religion in the public square you know crosses are being knocked off churches for example or you can only practice in your own home you can’t practice you can’t bring your religious belief into the public square and the being able to participate in the public square is a part of the American tradition I think as a religious person religious speech religious ideas religious thoughts that’s important so – on the Establishment Clause some of those some of those cases are as you know particularly complicated in the Supreme Court precedent but the Supreme Court precedent for example in the town of Greece case and and others has recognized that the some religious traditions and our in governmental practices are rooted and sufficiently in history and tradition to be upheld and so in that case the town of Greece case the Supreme Court upheld the practice of a prayer before a local legislative meeting is Marsh V chambers of course also a local Town Meeting I should say Marsh V chambers had upheld it in a legislative meeting as well so the religious tradition reflected in the First Amendment is foundational part of American liberty and it’s important for us as judges to recognize that and not and recognize too that as with speech unpopular religions are protected our job we can under the Religious Freedom Restoration Act question there’s sincerity of a religious belief meaning is someone lying or not about it but they we can’t question the reasonableness of it and so the Supreme Court has cases with all sorts of religious beliefs protected justice brennan really the architect of that so religious liberty is critical to the First Amendment in the American Constitution how would you describe the interaction between the Free Exercise Clause and the Establishment Clause and and are they at cross-purposes and intention or are they complimentary of each other I think in general it’s good to think of them as both supporting the concept of freedom of religion and in the new doubt case I wrote tried to explain some of those principles but I think it’s important to think that to begin with you’re equally American what religion you are if you’re no religion at all that it’s also important the Supreme Court has said that religious people be allowed to speak enter participate in the public square without having to sacrifice their religion in in speaking in the public square for example are practicing their religion in the public square at the same time I think both clauses protect the idea or protect against coercing people into practicing a religion when they might be of a different religion or might be of no

religion at all so the coercion idea I think comes really out of of both clauses as well the cases that are Establishment Clause cases that don’t involve coercion but are some of them were the symbol the religious symbols cases uh as you well know Center that’s a complicated body of law but in each probably area of that has to be analyzed in its own silo but as a general matter I think it’s good to think of the two clauses working together for the concept of freedom of religion in the United States which I think is foundational of the Constitution when you were in private practice you represented the adoption ohm synagogue pro bono you did that for free can you describe for this committee that representation and and and why you undertook it I undertook that representation to help a group of people who wanted to build a synagogue but were being denied the ability to do that based on a zoning ordinance that seemed to be the application at least of a zoning ordinance in a way that seemed to be discriminating against them because of their religion and that may have allowed other buildings to be built there but the they were being blocked or at least challenged from building a synagogue there so it seemed to me potentially a case of religious discrimination that was being used to try to prevent them from building so I wanted to I agreed to represent them because I like I wanted to do pro bono work and I always like to help the community in that case in particular I thought these people would want to build their synagogue have the right to do so as I saw it under the law and I thought I could help them do so and we did prevail in the state in the district court in Maryland and doubt that synagogue now stands and they you know they were very grateful and so that was the kind of litigation that was the couple years I was actually at a law law firm but did some pro bono work and that was very rewarding pro bono work to have a real effect on real people in their practice of their religion in the state of Maryland so that’s something that means a lot to me they gave me something a thing to hang on the wall justice justice shall pursue which has hung on my wall in my chambers the whole 12 years I’ve been there is just a reminder of a representation I had in the past and the importance of equal treatment and religious liberty and a successful pro bono representation that meant a lot to me well I’ll note some of the Democratic senators on this on this committee some of the Democratic senators on this committee hips rich and powerful entities at the expense of a little time at least in that instance representing the synagogue against the power of government is trying to prevent prevent it being built it’s very much incidents that you chose to give your your time and your energy and your labor for free to a litigant that I think most would would view as the little guy in that in that battle that’s correct senator and I’ve tried as a judge always to rule for the party was the best argument on the merits and that’s included workers in some cases businesses and others coal miners in some cases environmentalists and others unions in some cases the employer and others criminal defendants in some cases the prosecution in others and I have a long line of cases in each of those categories and little guy big guy is not the relevant determination if you’re the little guy so to speak and you have the right answer under the law then you’ll win in front of me earlier in the questions from Senator Graham he asked you a question are you a Republican and he asked it in the present tense and and and your answer you acknowledged that you had been a registered Republican indeed you’d served in a Republican administration previously but of course you’ve been a federal judge for 12 years do you consider yourself a republican judge I’m not sure what the current registration is but shortly after I became a judge I assumed this registration I haven’t changed it but I don’t know if it’s still listed but it’s really out there became a judge and it voted I think in one election I decided

I read about the second justice Harlan having decided that he didn’t want to continue voting while being a federal judge and I thought about it that practice and I would be the first to say I’m not the second Justice Harlan and not trying to compare myself in any way to him but I thought that was a good model for a federal judge just to underscore the independence because we’re not supposed to participate in political activities go to rallies give money and that kind of thing and it seemed to me that voting is a very personal expression of your policy beliefs in many ways and your personal beliefs and I I’m not trying and one final question the time is expiring and I want to and yet lighter note yeah you and I have both had the joys of coaching our daughters in basketball you tell this committee what what have you learned coaching your daughters playing basketball well it’s been a tremendous experience to be able to coach them for the last seven years and all the girls on the team and I’ve learned about something I’ve saw in my own life but the importance of coaches to the development of America’s youth teachers too but coaches can have such an impact I think I’m building confidence and when you see coach girls so when you see the girl developed confidence over time or you see compare their competitive spirit the teamwork the toughness that’s developed over time the drive you know win with class lose with dignity winning and loot the ability to lose but still put forth your best effort and so I’ve learned just how important I think I understood that from my own experience as I said but learned how important it is for people for coaches and the effect that you can have on people’s lives and I’ve heard from a lot of the parents over the last eight weeks while have been in this process about you know fact I had on some of the girls lives which was very nice to to hear in terms of my my coaching so like I said yesterday coaches have such an such an impact on people and I’ve learned I’ve learned that that’s why if senator Kennedy was said in our individual meeting I hope you keep coaching and I’m gonna either way this comes out I’m gonna try to keep coaching Thank You senator senator Coons Thank You chairman Grassley

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