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Senator Jeff Flake On Splitting The Ninth Circuit, The Reid Rule And Supporting Andy Puzder

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Arizona Senator Jeff Flake joined me this AM:




HH: Pleased to welcome United States Senator Jeff Flake from the great state of Arizona. Good morning, Senator, how are you?

JF: Hey, just great. Thanks for having me on.

HH: Thank you for coming on. I want to talk to you about the 9th Circuit. Before I go there, I want to talk about Andy Puzder. I’ve told your colleagues Ron Johnson and Tom Cotton today that any Republican that votes against Andy is never coming back on this show. Why all of this? What is going on there? We are a month into this administration, and we are like at half strength in the cabinet.

JF: Well, the Democrats are just using every available procedure to stretch this out. I don’t understand it. I mean, presidents ought to get their people unless there’s some disqualifying reason. And Puzder’s great. I think his experience, knowledge will serve him well. Same with DeVos. That will finally get done today, glad for that. My interns will certainly be happy at being done, that were answering calls. And I respect everybody’s right to call in, certainly, and glad to receive them, but it’s been pretty overwhelming.

HH: Well, they’ve got the teachers unions, and you know, I’m a member of the Great Hearts public choice charter schools in Arizona, on their board.

JF: Right.

HH: And they’re a great public charter school. I mean, you know them from your work in Arizona.

JF: I do.

HH: I do not understand the teachers unions. They’re more afraid of change than anything I’ve ever seen.

JF: Yeah, well, I was at the Goldwater Institute for most of the 90s, and we were quite involved in drafting and putting forward the charter school law that passed there that was more enabling, really, than any charter school law in the country. And as a result, Arizona, 17% of students in Arizona, 30% of the schools, are charter schools. 17% of the students, and some of the highest performing schools in the country, including Great Hearts, face this as evidence.

HH: And waiting lists as long as your arm, just an enormous waiting list.

JF: You bet. You bet, and my kids, five kids, and our last one is a junior in high school. They go to traditional, regular public schools in Mesa, but those schools are better, because there are charter schools next door nipping at their heels.

HH: Yeah.

JF: …and trying to get their students. And so it’s been great in Arizona, and I’m happy to vote for her today.

HH: Let’s talk about making the 9th Circuit better. There’s only one way to do that, actually. That’s by splitting it. And I have lived under, I’ve argued before the 9th Circuit. I’ve argued before Judge Reinhardt, even won before Judge Reinhardt. But the Circuit is wildly to the left. It is the most frequently reversed circuit, and it is 20, it is enormous, Senator Flake. Don’t people realize it’s got to be split?

JF: You know, there have been proposals to split it dating back to 1941. And so it’s, yeah, as you mentioned, it’s far too big. 20% of the population in the country is under the 9th Circuit, 40% of the land area. You know, it’s comprised of 13 districts, 9 states, 2 territories, and every year, it hears, what, I think, 12,000 appeals? And the average wait time for a decision is 15 months. You know, and the one bedrock principle we have in this country is swift access to justice. And if you live in the 9th Circuit, particularly in Arizona, you just don’t have that.

HH: Now Senator, I put out an idea to your whip, John Cornyn, former Texas Supreme Court judge, that reconciliation, the Byrd rule applies. You can only pass things by simple majority that are relevant to the reconciliation. But I suggested using the Reid rule to change the rules of the Senate so that anything having to do with judicial reorganization is relevant to reconciliation, because it all goes to tax and spend. What do you think? Do you think you could jam this through with 51 votes, because you’ve got 51 votes, and it ought to be in reconciliation, because everyone wants this except liberal Democrats who don’t want the mountain states to have their federalism way?

JF: Well, right, and it’s just mostly Democrats, and certainly on the court, liberal judges don’t want to diminish their portfolio. So there is, obviously, a lobby against it. But among Republicans, it, I thing, would pass. Now I haven’t thought of putting this as part of reconciliation, but I do think that we’ll get increasing support all the time. The nice thing this year, Governor Ducey is quite involved in this. We’ve coordinated the release of this. He’s working other governors. Certainly, our state legislature is doing the same with the affected state legislatures. So I think we’ve got a better shot this year than ever.

HH: You know, I think it will come out the House, and I think you’ll get it out of Judiciary Committee in the Senate, and then you’ll run into the 60 vote rule, which is why I would encourage you to think creatively about reconciliation and the use of the Reid Rule to change the Byrd Rule, because that’s the only way I see this getting done, and it really is justice denied out here. You cannot get justice in the 9th Circuit simply because of waits and because of the liberal nature of it. And it does not reflect your state or the mountain states that would join you in the new, what would be 12th Circuit. Have you talked about the Judiciary Committee moving it quickly?

JF: Yes, yes, and I’m talking to my colleagues now. The bill’s been introduced. In the House, there’s a similar piece of legislation Congressman Biggs has introduced. And so we’re trying to move as quickly as we can.

HH: I cannot wait. Please keep me posted on that. Now a couple of quick other questions. Do you see Betsy DeVos being confirmed today?

JF: I do.

HH: Okay.

JF: I do, and I think it will happen around Noon today.

HH: And do you see Judge Gorsuch becoming Justice Gorsuch?

JF: I do. I do. I’m not sure that the Democrats will want to spend all their political capital. They’re certainly beating their chest on this now, but they’ve got to look down the road and think maybe there’ll be a more controversial judge coming up. And if they go after this one, you know, as Leader McConnell has said, he will be confirmed. And so I’m confident he will, and he’s a great pick, by the way. He’s an awesome, awesome pick.

HH: I interpret that…he is an awesome pick. I interpret that statement by the Leader, and a similar statement by the Whip, by your Conference Chair Thune, by Chairman Grassley to mean that the Reid Rule would be invoked to change the limit to 51. Is that how you interpret those statements, Senator Flake?

JF: It is. It is.

HH: And would you support such a change if necessary?

JF: I would, and here’s why. I don’t like, and like you, I’ve seen the piece you wrote for the Washington Post recently. I hate the fact that we are where we are. I like the filibuster in all its forms with the president’s executive calendar as well as with legislation. But you know, prior to 2003, with the exception of what, Abe Fortas back in ’68, it was just never employed. It’s for extraordinary circumstances. I’d love to go back to that time. I don’t know if we can, and I’d certainly be willing to explore options like you have with regard to the DC Circuit, and having it for a period of time. But the bottom line is if we invoke the Reid Rule for the Supreme Court, and just extended it there, it would return us to Senate precedent. It would basically make du jour what was de facto prior to 2003. I’m okay with that. I certainly won’t go near that on the legislative filibuster, but…

HH: Nor should you. Oh, gosh, not, except under reconciliation where you have…

JF: Yes.

HH: …where you have that Byrd rule which says it’s got to be germane, but it’s often just very difficult to understand what is germane and what isn’t in the process. Senate rules is not ordinarily the stuff of morning talk radio. But it seems to me, Senator Flake, increasingly, people are wondering why is the Senate so freaking dysfunctional.

JF: Right.

HH: What do you tell them?

JF: You know, it really is a function of really just the last decade or so. And I don’t think either party is blameless here, but it is dysfunctional when you can’t move simple pieces of legislation and in particular, the President’s nominees both to the Court and to his cabinet through the Senate, then it’s pretty darned dysfunctional.

HH: Last question, is there any effort to kind of gather? I don’t want a gang of eight or a gang of 14. I want the Leader and the Minority Leader to designate people to work out how you get back to where, as my Washington Post column was about, how do you get back to the pre-2003? And you’re talking about the Harry Reid-Patrick Leahy led blockade of judges that included, among others, the now-Chief Justice of the United States who saved Obamacare. They called him a radical. That’s how crazy Reid and Leahy went in 2003. Is there any way to get in the wayback machine and repair this thing?

JF: I think there is. And I’ve been part of discussions dating back, you know, ever since I’ve been in the Senate, led by people like Lamar Alexander and others, institutionalists. Lamar will point out that you know, when we’re talking about the DeVos nomination, he talks about how much resistance there is from the other side. He said only one person received more resistance or a longer time before a hearing, and that was me. And so he knows a bit about what he speaks, and so yes, some of us have, and continue to discuss ways to get the Senate functioning again. And the Senate, I’m sorry, the filibuster properly employed, I think, in tradition, the way it has been traditionally, it benefits those who believe in limited government more than it hurts.

HH: Absolutely. And absolutely, it does. You know, I sent a copy of The Fourth Way, my new book, up to every Republican who went to the Philadelphia retreat.

JF: You know, I was there for part of that, and I didn’t get it, so I had to order my own copy, and I have it waiting for me at home.

HH: Oh, good. What I want to add, and thank you, by the way, I appreciate that. I always love book sales. But in it, I suggest that perhaps President Trump might do a Nixon to China on immigration. He’ll get his fence built, but he also might be for a sweeping regularization of people in the country without documents. What do you think of the prospects of that, Senator Flake?

JF: You know, I’ve introduced legislation to, with regard to the DACA kids, it would 1) take legislation that I introduced before called The Save Act, to basically expedite deportation and to make sure that we keep in detention those with criminal offenses, but it would marry that with a taking care of the DACA kids. He could, President Trump, go broader than that. And he might. I don’t believe that he will deport DACA kids. But I don’t think that he’ll simply do that on its own. So I think it will be part of a bigger bargain, and I hope that he does.

HH: Nixon to China. Jeff Flake, Senator extraordinaire, great to have you, Senator. I appreciate you joining me in your support for Andy Puzder, as well as for getting the 9th Circuit into two circuits. Thank you, Senator.

End of interview.


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