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A Liberal Law Professor On His Endorsement Of Kavanaugh

LULU GARCIA-NAVARRO, HOST:

This past week, the Senate judiciary committee wrapped up four days of hearings on the Supreme Court nomination of Judge Brett Kavanaugh. The hearings were a largely partisan affair. And in about two weeks, the committee will likely vote along party lines to recommend Judge Kavanaugh for confirmation.

Akhil Reed Amar teaches at Yale Law. And he's a self-described liberal who voted for Hillary Clinton. He's also Kavanaugh's former professor. And he was one of the witnesses who testified in front of the Judiciary Committee on Judge Kavanaugh's behalf. And he joins us now via Skype.

Welcome to the program.

AKHIL REED AMAR: Thanks for having me.

GARCIA-NAVARRO: In your testimony, you spoke, at one point, directly to Democrats, saying, quote, "our party controls neither the White House nor the Senate. If you torpedo Kavanaugh, you'll likely end up with someone worse, someone less brilliant, less constitutionally knowledgeable, less studious, less good for America." Ending up with someone worse - is that a ringing endorsement of Brett Kavanaugh?

AMAR: Well, it's realism. So you have to try to figure out whether at the end of the day, you're going to be better off or not. Be careful what you wish for. What people don't quite understand are the rules of the game. The president is the first mover. So if you defeat his first nominee, if he's a clever president or even a vindictive one, he will serve up someone the second time around that you're not going to be able to stop and you're going to like even less.

GARCIA-NAVARRO: Many Democrats don't think Kavanaugh really answered whether or not a president could be subpoenaed or pardoned himself. Do you feel like you could now spell out how Kavanaugh views the scope of the president's authority?

AMAR: Just like anyone else in your audience, read what he has said. He's delivered speeches on this topic. He's participated in various events. People need to understand that folks change their mind. Kavanaugh himself has changed his mind on executive power over the years. So Kavanaugh declined to really give any hints beyond his previous writings and statements. I'm not sure that those are the sensible rules of engagement for a confirmation process. But they have been the rules of engagement in years past. Nominees have basically not made promises on currently contested constitutional issues.

GARCIA-NAVARRO: In your estimation, how well did the Democrats handle these hearings? I mean, you urged the Democrats to ask fair questions of Kavanaugh. Did they?

AMAR: They're entitled to ask all sorts of questions. We have to try to think about what game they're playing. They could be simply playing the election game. They got to get their folks out - I would say our folks - I'm a Democrat - to the polls in November. And if that's the game they're playing, I think they may have mobilized people to understand what the stakes are because presidents and senators pick justices. And voters pick presidents and senators.

But if, instead, they were actually trying to block Kavanaugh, I'm not sure that they actually succeeded at all because I didn't see any Republicans who were defecting. If the game was to defeat Kavanaugh, I'm not sure I'm seeing it. If the game is to get the troops out in November, maybe the Democrats achieved what they were trying to do.

GARCIA-NAVARRO: Now, if Kavanaugh is confirmed, which seems likely, this will really change the makeup of the court. As a self-professed liberal Democrat, how worried are you?

AMAR: I actually think Brett Kavanaugh is good. I think he's the best sitting federal Republican judge under age 60. I'm an opponent of the Trump administration. This is the one most sane, most sober, most classy thing that the administration has done. So I'm participating in the game because that's actually our constitutional system. Once the Republicans won both the presidency and the Senate, they get the court.

GARCIA-NAVARRO: Akhil Reed Amar is a professor at Yale Law School. Thank you very much.

AMAR: Thank you.

(SOUNDBITE OF DANIJEL ZAMBO'S "SUNDAY MORNING") Transcript provided by NPR, Copyright NPR.