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Sen. Cruz Questions Judge Kavanaugh in Second Day of Confirmation Hearing

Discusses the importance of federalism, religious liberty, and free speech

WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas), member of the Senate Judiciary Committee, today questioned Judge Brett Kavanaugh in the second day of the confirmation hearing. There, they discussed the importance and relevance of federalism, religious liberty, and free speech in the American tradition. On Tuesday, Sen. Cruz delivered introductory remarks in support of Judge Kavanaugh, saying that the overwhelming majority of Texans want judges who will follow the law, will not impose their policy preferences, and who will be faithful to the Constitution and the Bill of Rights.

Sen. Cruz’s full line of questioning may be viewed here. Excerpts are below. 

Before asking questions, Sen. Cruz thanked the Capitol Police for their professionalism in the midst of unfortunate disruptions.

“Before I get into questions, I just want to take a minute to recognize and thank the outstanding work at this hearing by the Capitol Police in terms of the 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,” Sen. Cruz said. “And so thank you for the tremendous work that the men and women here are doing.” 

Sen. Cruz continued, asking Judge Kavanaugh what makes a good judge.

“Senator, a good judge is independent, first of all, under our constitutional system,” Judge Kavanaugh said. “Someone who is 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 as 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 in constitutional cases of course rooted in Article III 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. A work ethic. 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 those are some of them. I’m sure there are more.”

Sen. Cruz and Judge Kavanaugh also had an exchange on the doctrine of federalism. 

“Can you share with this Committee why federalism matters?” Sen. Cruz asked. “And, again why Americans watching this hearing at home should care about the principles of federalism?” 

“Federalism matters for several reasons Senator,” Judge Kavanaugh said. “Again, it helps further individual liberty in the sense of additional protection. So let me give you an example: if the U.S. Constitution only protects the Fourth Amendment, only protects against unreasonable searches and seizures up to a certain line, it's possible that your state constitution would 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 is not always the same views in Texas that there might be in California, for example on particular issues and so you have different laws…

“Thankfully!” Sen. Cruz said.

“Yes, and different laws in those states,” Judge Kavanaugh continued. “And, also, I think that 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 as 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 of the government. The local courts system, my mom of course was a state trial judge. The whole system of state government is most people’s interaction with government. Federalism in that sense makes-- ensures accountability because you know better usually your local and state elected officials better than you do and you can therefore make your views known on whatever governmental issues that is of concern to you. For example, the schools is a classic one.” 

Later, Sen. Cruz also asked Judge Kavanaugh to discuss his views on the importance and relevance of the Tenth Amendment.

“The Tenth Amendment protects federalism in the sense of ensuring that the states have independent - 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 they have the status as separate sovereigns under the Constitution,” Judge Kavanaugh said. “And so you were 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 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.”

Finally, Sen. Cruz asked about the importance of the First Amendment with regard to free speech and religious liberty, Judge Kavanaugh said that, “Being able to participate in the public square is a part of the American tradition.”