Leonard Leo of the Federalist Society joined me this morning:
HH: Joined now by Leonard Leo of the Federalist Society. Leonard, welcome back, good to have you on the Hugh Hewitt Show.
LL: Great to be here on your anniversary.
HH: It’s a big day for everyone. Tell me your reaction. I don’t know Brett Kavanaugh. I just know of him and have been working to get him confirmed for years back to 2006. Tell us about him.
LL: Sure. Well, he is one of the most distinguished jurists in the country. He’s written nearly 300 decisions. He’s someone who believes very deeply in the idea that if you really want to protect freedom and dignity and prosperity in this country, you’ve got to respect and enforce the limits on government power set forth in our Constitution. You know, he’s someone who of course has been in Washington for a number of years, but he’s in Washington, but not of it. He’s been serving on a court that does a lot with the administrative state, and he has time and again expressed great skepticism about the lack of accountability and transparency that so many bureaucrats exercise in our country.
HH: I have been reading some of his opinions since hearing about it yesterday, including his opinion in an FCC case in which he referred to standard bureaucratic time. I think he is going to be wonderful vis-à-vis the administrative state and the Chevron doctrine. Are there other areas that are even more reassuring to conservatives, Leonard Leo, about Judge Kavanaugh’s jurisprudence?
LL: Well, there are a couple of different areas that he’s decided cases on in the D.C. Circuit. First of all, there have been, there’s been a very important 2nd Amendment case, a gun rights case, that he ruled on where you’ll find that you know, his position is very consistent with Justice Scalia’s position, which is wrought out of an original understanding of the Constitution. He’s had a couple of cases on religious freedom where he has applied an original understanding of the Establishment and Free Exercise Clauses. I think probably the most prominent of those was the Priests For Life case where he ruled that the contraception mandate was not consistent with religious freedom principles. So there are some other areas where he’s weighed in. Of course, as you know, Hugh, the D.C. Circuit deals mostly with the administrative state, and a lot of those cases are, you know, stodgy cases. But what you see running through his opinions, which is really important, is a very bullish approach to the separation of powers and federalism. And now I think that’s really important in our country these days, because if you really want to limit government power, it’s really important that you respect the structural Constitution.
HH: And I would recommend to everyone the opinion in Multicultural Media V. FCC, which was from October of last year. Judge Kavanaugh just, it’s a great example of how he goes about making sure that administrative agencies are doing what they are supposed to do and defending when they do, and disciplining them when they are not. Let me ask you, Leonard, how long have you been involved in this process of replacing Justice Kennedy?
LL: Oh, you know, first of all, the President and the White House Counsel have been involved in this process from the very beginning. You know, it’s not always apparent, but White Houses are always preparing for vacancies. And so even, you know, just after the Gorsuch confirmation, the White House was focusing on, you know, what happens if we get another vacancy. And of course, things got very intense right after Justice Kennedy announced his retirement, which was just, you know, a couple of weeks ago, right?
HH: And have you been involved throughout that whole period, because I know you were on staff for a while, but you went back to the Fed. Soc., and when did you reengage on the specifics of this nomination?
LL: No, I’ve been engaged through the entire process. And you know, obviously the President and Don McGahn, the White House Counsel, are at the epicenter of this. But I’ve been very, very heartened by the kind of intensity engagement I’ve seen by the President these past several weeks. He, I can’t remember a president that’s been more transparent and more intensely engaged that he is. He has interviewed all these people at length and with great care. He’s asked lots of questions. He’s talked to lots of people. He’s reached across the aisle to Democrats to get their input. And yesterday’s remarks, I think, are very consistent with how he’s thought about this through the entire time, you know, both philosophically and in terms of getting someone exceptionally well-qualified.
HH: Now Leonard Leo, there’s a report this morning from Jeff Bennett of NBC and others that Justice Kennedy, “had been in negotiations with the Trump team for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh, his former law clerk, Kennedy felt comfortable retiring.” Your comment?
LL: Anyone who knows Justice Anthony Kennedy knows that that is garbage. He treats his office with tremendous dignity and independence. And there is literally no way in the world that that would have happened. And no president or White House Counsel who even knows Justice Kennedy a little bit would ever have tried to pull that stunt.
HH: So unequivocally, 100% denial, and you would have known about it?
LL: Oh, absolutely. I’ve known Justice Kennedy a little bit over the years, and I know Don McGahn even better. And there’s just no way, no way that that is possible. And that’s very insulting and offensive to Justice Kennedy. He’s a man who has greatly valued the independence of the judiciary, you know, and he has always been someone who has guarded his own prerogatives, and he would understand that doing something like that creates too much of a cozy connection between another branch of government and the judiciary, and I just could never see him do that.
HH: It would also be incredibly destructive of the good faith of the other candidates in the process who engaged in it. I was a Kethledge fan, but I like Brett Kavanaugh who will be fine. But I just want to make sure we drive a nail through this, because it’s spreading like wildfire on Twitter.
LL: Let me tell you, the President had very, very good interviews with each of the candidates, and this was a full throttled process. The President went back and forth, you know, between candidates, their plusses and their minuses. He made lots of phone calls about all of them. He asked Don McGahn, the White House Counsel, a lot of questions about each of them after the interviews. This is not someone who was just driven to nominate one person and create subterfuge and distraction by raising other names. This was a real game of jump ball. And all of these people were granted, I’ll give you an example. You mentioned Judge Ray Kethledge, Hugh. That interview was, by all accounts, a wonderful interview. The President was very impressed with Judge Kethledge. He ultimately didn’t pick him, but he was very impressed with him, and not only on his substance, but in terms of his commitment to courage and independence and fairness on the bench. He has a great book on leadership, as you know, where he talks about courage.
HH: So I just wanted to lay it out there. So you are denying that, and that will travel. Let me get to the next big question. When Chief Justice Roberts was nominated, I got a phone call. Hugh, we have to release your papers from your time in the White House Counsel’s office with the Chief Justice, because that’s just what they’re demanding. Will the White House papers of Judge Kavanaugh be released quickly in order to anticipate and get over this obstacle that will be thrown up by Democrats, Leonard Leo?
LL: My understanding is the Bush library, which is who houses the papers, is going to move swiftly in releasing the papers that can be released. And I’m sure there’ll be many of them. And the Democrats can have lots of fun reading lots of Bush press releases that are already public. They can read dozens of White House menus. I’m sure it’ll make for wonderful reading. And the American people can decide whether or not that’s a useful allocation of taxpayer resources.
HH: How about the files of the Independent Counsel on the staff of which Brett Kavanaugh served? Will they also be released?
LL: I don’t know how that’s going to work, Hugh, you know, because I don’t know what there is privileged and sensitive. But I’m not so sure that it’s all that relevant. In other words, we know that, we know what the Independent Counsel’s office did there pretty clearly. And I’m not sure that any of the underlying documents are going to give us any more insights than what’s been public, which were the documents related to impeachment.
HH: Two quick questions. When do the hearings begin, and when do the rest of the nominees for the appeals court get up there, because Mitch McConnell’s raring to go?
LL: Well, we don’t know exactly when the hearings begin, yet. By my estimation, they can probably begin as early as around August 20th or so. And if, you know, the range between August 20th and probably just after Labor Day. That would be, that would be the time frame within which the chairman could probably get a piece together. In terms of other appeals court nominees, well, Hugh, as you can imagine, that’s the one downside to this. Those nominations will have to wait until probably after early October. But we’ll get, believe me, Mitch will get around to them.
HH: Oh, Leonard Leo, good to talk to you. Keep coming back during this process.
End of interview.