'What I'm Trying To Understand Is How You Think': Kennedy Does Not Let Up Grilling Judicial Nominee

6 months ago

At today's Senate Judiciary Committee, Sen. John Kennedy (R-LA) questioned Embry J. Kidd, nominee to be United States Circuit Judge for the Eleventh Circuit, about his theory of law.

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Transcript

00:00Thank you, Mr. Chairman, congratulations, Judge. I just want to talk a little

00:08bit about the law. Tell me about the War Powers clauses in Articles 1 and 2.

00:22Well, Senator, my understanding of the War Powers is that the executive maintains significant

00:33authority with regard to the war, but that has to be authorized by Congress.

00:38What do you mean authorized? Senator, I don't have a more, that issue has

00:51not come before me, but I don't have a more specific definition of authorization than

01:00that the Congress has to, it's up to the Congress to, I don't, to authorize it. I can't say

01:10more than that, Senator. Okay. All right, let's talk about another issue

01:17you'll see if you're confirmed with the Eleventh Circuit. It's an issue we struggle with every

01:24day, as do the federal courts. Tell me about the non-delegation doctrine.

01:32My understanding, Senator, of the non-delegation doctrine is that Congress should not delegate

01:42its powers to other branches of government except in certain limited circumstances.

01:47And what are those limited circumstances? I believe, based on my understanding, that

01:55Congress can, for instance, delegate some of its authority to the executive, such as

02:01executive agencies, if that authority is carefully circumscribed.

02:07I'm not following you. The Constitution's pretty clear in Article I that the legislative

02:19power resides in the United States Congress, and we can't give it away. But your argument

02:32is that we can. Senator, it's my understanding that in certain

02:38limited circumstances that are carefully circumscribed, that Congress can delegate some of its authority

02:46to . . . What's the guiding principle, though? Tomorrow,

02:54if Congress passed a law and said, we're no longer going to confirm judges. We're going

03:01to set up a special agency within the executive branch and give that agency the authority

03:10to confirm judges. Somebody's going to litigate it. What would be the principle that the court

03:18would follow? Senator, I would certainly, if that issue

03:24were to come before me on the Eleventh Circuit, if I'm fortunate to be confirmed, I would

03:28research the Supreme Court's precedent and guidance on that issue, and any binding Eleventh

03:37Circuit precedent on the issue, if there is any, and address that issue. But in terms

03:42of the hypothetical situation, Senator, I would leave it at that.

03:48Okay. Well, let me ask you this. Let's set aside what the principle is for a moment.

03:54The Supreme Court has been pretty clear what the principle is. It goes back, I don't know,

04:00eighty years. I must suppose . . . Well, strike that. What I'm trying to understand is how

04:09you think, Judge. What do you think the principle ought to be? I mean, our founders were very

04:17clear that the legislative power is ours, and clearly we've given away that legislative

04:24power in some instances to some administrative agencies. What do you think the principle

04:29ought to be? I mean, could the Congress just come in one week and say, we're tired, let's

04:35just give it all to the President for about six months while we go fishing? Would that

04:40be constitutional? Well, certainly, Senator, I think to that

04:43extent it would unlikely be constitutional based on . . .

04:48Why? Why? Why do you think? Based on the principle that I just stated.

04:55And that you have reiterated that . . . Which is?

04:58The principle. That Congress cannot delegate its authority

05:03except in certain circumstances. And those are?

05:06And those are ones that, Senator, I would not want to speculate about. I can say that I would

05:15follow the Supreme Court's guidance on that, and my understanding of that guidance is that

05:22those circumstances are very narrow. Okay. But you're not familiar with the principle?

05:29Senator, to the extent that you're looking for a specific articulation, I would have

05:35to look at the case law and follow up on that. Okay. Robert, do you have any questions you

05:44want me to ask your dad? You sure? Now's your shot, man. Do you have anything you'd like

05:51to say to us, Robert? It's okay. A wise man once said . . .

05:57I think he had a hello . . . I think he had a hello for you, sir.

05:59A wise man once said nothing. Thank you, Judge. Senator Butler.

06:07Thank you, Mr. Chair. Congratulations, Judge, on your . . .

'What I'm Trying To Understand Is How You Think': Kennedy Does Not Let Up Grilling Judicial Nominee

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