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Senate Whip Jon Kyl on the Judicial Filibuster and whether Elena Kagan Should Recuse Over Obamacare

Wednesday, December 7, 2011
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HH: An enormous day for news. Mitt Romney has declined the Trump debate, the International Association of Machinists has unilaterally withdrawn its complain of Boeing, and the NRLB is going to dismiss that case in the context of a big settlement between the machinists and Boeing. And of course, the first filibuster by the Republicans of a judge for the D.C. Circuit. To discuss these and all other stories, I am joined by the GOP whip in the Senate, the number two Republican in the United States Senate, Jon Kyl of the great state of Arizona. Senator Kyl, a Happy Thanksgiving to you, and a Merry Christmas.

JK: Well, thank you, Hugh, and to you as well. We did have a great Thanksgiving. We’ve got a lot to be thankful for, including a lot of great challenges before us.

HH: We do. I want to walk through them in order. Today, Dan Quayle, your colleague, your neighbor in Arizona, endorsed Mitt Romney. And are you planning on endorsing someone before the voting gets underway, Senator Kyl?

JK: Probably not before the voting gets underway. I might eventually endorse someone, but I don’t plan to do so before the Iowa Caucus. Let’s put it that way.

HH: And what do you make of the Trump debate? Newt’s going, and Mitt’s not, and generally, I was very much against it, because it’s just not serious. What do you think?

JK: I heard that Trump was asking all the questions, and someone said he would declare a winner at the end. Now that may be wrong. If that’s the case, it does seem not the kind of thing that’s serious enough to participate in. If that’s not correct, then I would reevaluate it. But I’ve been busy doing other things, and I haven’t familiarized myself with the exact way that the debate is supposed to be held.

HH: Now you’ve been involved in the Supercommittee, and you’ve been involved in the Defense talks. I was just down at Norfolk for a couple of weeks on the Norfolk Naval Base there. And I know you care a lot about Defense. Is this campaign serious enough about the Defense issue, Senator Kyl?

JK: No. I’ve been very disappointed, frankly, in almost all of the candidates. Other than Rick Santorum, I haven’t seen any of these candidates stand up for American Defense, and our national security as they should. They say that they’re Reaganites when it comes to national defense, but he coined the phrase peace through strength, and that means you’ve got to be strong so people won’t mess with you. And to be strong, you’ve got to spend what it takes. And I’d like to see all of them step up to the plate and say that.

HH: Now the news out of South Carolina that the IAM is withdrawing its complaint, and the NLRB is going to go away, and Boeing is going to get to build its planes there, what do you make of the significance of that?

JK: It’s very significant. It’s good news. I think there were a lot of deals made there, and I don’t know exactly what they were. We got a little teeny bit of a briefing. And I think it was one of those situations where everybody realized they were going over the cliff, and maybe going over the cliff together was an interesting proposition, but you’re still going over the cliff. So they backed away. I think they made whatever deal they did, and it’s going to be better for everybody.

HH: Now let’s turn to the biggest news of the day, which is Senate Republicans have blocked a nominee to the D.C. Circuit for the first time in my memory. Tell us about this, and your decision process, because the filibuster is back, and the Gang of 14 is probably interred.

JK: Not exactly. First of all, this was the second time that we rejected a Bush nominee for the Circuit Court.

HH: Obama nominee.

JK: What’d I say?

HH: Bush.

JK: Ah. Goodwin Liu, an Obama nominee for the 9th Circuit Court of Appeals, we stopped as well. He’s since been appointed to the Supreme Court in California, but he would have been an awful nominee, candidate for the 9th Circuit Court of Appeals. The one who was defeated today, her name is Caitlin Halligan, and the cloture vote failed 54-45, so it wasn’t even close. You have to have 60 votes, as you know, to invoke cloture. She had a series of very controversial positions that she had taken as a lawyer relating to the 2nd Amendment, to abortion, to the detention, to the authorization of the use of military force in Iraq, and some other things. And as a result, our Republican conference just did not believe that she should be confirmed. Moreover, this is for a seat on the D.C. Circuit Court of Appeals, which is the same court that the Democrats filibustered a very capable Bush nominee on the theory that they didn’t need another member on that court. The court has even cancelled dates when it’s been scheduled to have oral argument, because there wasn’t enough to do. So if that was good enough for the Democrats to hold back one of the Bush nominees, then certainly the same situation pertains today when they have even a lower case load than they did before.

HH: Now four of your colleagues who were part of the Gang of 14, Senators McCain, Graham, Collins and Snowe, all voted to refuse cloture here. That’s why some of the early commentary suggests that the Gang of 14’s extraordinary circumstances test is over, and Chuck Schumer is saying as much.

JK: No, it’s an application of the test. I mean, we’ve confirmed a lot of Obama nominees. And some of them aren’t very good. But occasionally, once in a long time, you’ll find one where extraordinary circumstance require you to filibuster the nominee. That’s what was at work here. It wasn’t that that standard no longer applied. Quite to the contrary, it did apply, and these were extraordinary circumstances, and those members of that gang of, what was it, 14, I think it was?

HH: Yes.

JK: They all concluded that yes, this was the kind of nominee that they reserved the right to vote against because of extraordinary circumstanced.

HH: Now Senator Kyl, you’ve been on Judiciary a long time, and you’ve seen a lot of these. How would you articulate what was significant about her background that put her in that different category that Liu was in of the two that you’ve opposed?

JK: Yeah, it’s a variety of things. No one think in particular. But…and I actually was at the hearing, and I heard her testimony. I asked her questions. And I got the sense that she was trying to walk away from positions that she had clearly taken at the time. She wasn’t really rejecting them, she wasn’t repudiating them, but she wanted to sort of slide away from them. Well, the first thing I look for in a nominee, and the reason I opposed both of Obama’s Supreme Court nominees, were the fact that I don’t think they were straight with the committee or with the Congress. They said something one time, they didn’t either stick by it or flat-out repudiate it. They tried to, in effect, cover it up, tried to mislead the committee into believing that oh, it’s no big deal, I’ve sort of changed my mind, it’s sort of that confirmation conversion state of mind. So that’s the first thing I look for. Secondly, did they argue things that are clearly beyond the pale, or take positions that are so political that they demonstrate a commitment to politics rather than the law? And I found all of that in both the Goodwin Liu nomination, and to a somewhat lesser degree, but still disqualifying degree in the case of Halligan.

HH: Do you believe Justice Kagan should recuse herself from the Obamacare hearing and decision?

JK: I think she should. I’d like, you know, this is a serious matter, and I don’t want to accuse her of bad faith or anything, but the law is pretty clear. It’s not a matter of judgment, subjective judgment. It’s a matter of did you participate, as part of the Justice Department, in any deliberations relating to the case at hand? And the answer, in her case, was yes. And she admitted that she did, but she just said it wasn’t significant. Well, the statute doesn’t say did you deliberate significantly. It was did you deliberate. And I have a suspicion that it was more than she would lead us to believe in any event. So my view is that she probably should.

HH: Have you taken a position yet on whether Attorney General Holder ought to resign given his involvement or lack of clarity, and some would say truthfulness on Fast & Furious?

JK: No, although yesterday, I made a statement that was misinterpreted as calling for his resignation. It was a statement that said America would be better off if he weren’t Attorney General, and I do believe that. I’ve always shied away from calling on people to resign. It’s not my place to call on them to resign. But I can sure say that I wish I hadn’t voted for his confirmation, and I wish he weren’t there.

HH: Now I wanted to go back to the application of the extraordinary circumstances test. By definition, if there’s a vacancy in June, on the Supreme Court, it would be of incredible importance to the future and the direction of that Court. Do you think we’re into extraordinary circumstance by definition already, and that it would be highly unlikely that any vacancy would be filled before the election, Senator Kyl?

JK: Well, that’s a different kind of exigency. That doesn’t go to the person’s temperament or qualifications, or how they would approach decisions on the bench, but rather just a calendar situation. And I don’t know. Basically what you’re asking is would it be our view that it would be too late to take up a nomination because really, it ought to wait the next president, or Obama if he is reelected. I don’t know. I’d have to think about that. I tend to think that that should not be the determining factor. The Court functions with eight members, not nine, but if you can get nine members on there, you should. There is a point at which it’s definitely too late. That’s clear. Whether June is that date, I’m just not sure.

HH: And then a last question, back to the committee, the Supercommittee. I know we disagree on the mortgage interest deduction, all that stuff, but that’s over. We don’t disagree on these Defense cuts. Will they be stopped?

JK: Well, they need to be. And the way to do it is to take the savings that we identified in the so-called Supercommittee. There’s probably a trillion dollars…I could give you a trillion dollars in savings right now, that’s legitimate savings, or some of it’s revenue, fee increases and that sort of thing. And if we applied that money to the $1.2 trillion to be sequestered, you could virtually wipe the sequester out. Half of that, of course, relates to Defense spending. That would have been the smart thing to do. The committee couldn’t reach conclusion on it. But the Congress can still apply those same elements of savings to reduce the degree of sequester. So my hope is that perhaps on an annual basis, we’ll take $100 billion dollars or so of that savings, and reduce the amount that has to be sequestered, so that we keep putting it off, and it doesn’t actually ever have to happen.

HH: Jon Kyl, thank you, Senator, so much.

End of interview.

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