Kennedy questions judicial nominees Kuhlman, Powell, Mattivi in Senate Judiciary Hearing

[0:00] Senator Kennedy. Thank you, Mr. Chairman. Mr. Coleman, have you ever been to Manhattan? [0:09] Manhattan, Kansas? No, sir. Manhattan, New York. I have not. Okay. Are you familiar with, [0:16] maybe you've seen it in the movie, Third Avenue, Midtown? Only by reputation. Okay. Well, [0:22] it's a major east or north-south traffic corridor. Very busy. A lot of traffic. I don't know if you [0:33] saw the news yesterday, but about 200 protesters in New York sat down in the middle of Third Avenue, [0:45] completely blocked traffic. They were wearing t-shirts that said, no war, no ice, free Palestine. [0:55] Completely shut everything down for about an hour. Police had to come in. They arrested some of them. [1:02] This is New York. Nothing will probably happen to them. But the point is it blocked traffic severely. [1:09] Let's suppose a medical transportation service was trying to get a heart to a transplant patient [1:26] in a hospital nearby. And obviously the traffic jam delayed him and the patient died. You with me? [1:37] Yes, Senator. All right. Does the patient's family have a cause of action against the protesters or the [1:44] leader of the protest? In any hypothetical, I would hesitate to completely prejudge the situation [1:51] without knowing all of the facts. Come on, counselor. Give me your legal opinion. This [1:56] is a first year, first year law student question. I believe they would more than likely. I think [2:03] that would be a matter. What would be the issues that would arise? I just want to understand how you [2:07] think. Sure. I think that would be- If you're defending the leader of the protest, [2:11] yes, what's the first thing you're going to say? I'm defending the leader of the protest? Yeah. I would [2:16] probably argue about causation and foreseeability. I mean, that would be really a state law negligence. [2:21] What do you mean causation? Well, for any negligence claim, one of the elements is, is, you know, you have a duty [2:29] to somebody. Did you breach that duty? Did you cause them an injury? And part of the duty causation calculus is how foreseeable that [2:39] injury was. Okay. What's the difference between legal causation and proximate cause? [2:44] So- Cause in fact and proximate cause. Yeah. Yeah. So cause in fact is the specific cause [2:52] of death or injury, rather. And in this case, it would probably be whatever heart ailment this poor [2:59] person that you've described had would probably be the cause in fact of his death. But proximate cause does [3:05] not always have to be the cause in fact, and there can be multiple causes. So, um, a proximate cause is, [3:12] but, you know, but for this thing happening, this injury may not have occurred. Okay. And- [3:16] I got it. Good. Um, Judge Powell, um, you said you're, you're a textualist? Yes, sir. [3:25] What does that mean? It means you follow the words of the, of the text of the statute. Okay. Uh, what if the, [3:33] the, uh, the text of the statute's not clear? What do you do? Well, one of the approaches that I do [3:40] use is I want to look at the language and context of the statute as a whole and try to harmonize the [3:46] language. Uh, I may use, go to dictionaries to help me find definitions of words. Uh, well, how ambiguous [3:55] does the statute have to be before you're going to look to secondary sources? Well, and big ambiguity [4:03] means it, the, the language is subject to one, two or more interpretations. And so, if there's [4:10] language- Reasonable interpretations. Correct. Well, I mean, does the, does the, does it have to be [4:18] 50 percent ambiguous or 52 percent or 51 percent? Well, I'm not sure how to apply the 51. To me, [4:29] ambiguity- That's what I'm asking you is how you apply it. Well, ambiguity means that the words that are used [4:35] are susceptible to two or more different definitions. That's, so I don't know whether that's 50 percent. [4:41] Why do you go, I'm not suggesting you're wrong, but why do you go through that exercise? Why, why do [4:46] you want to spend hours agonizing and debating how many lawyers can dance on the head of a pen to just [4:53] try to decide whether it's ambiguous? Why don't you just go look at the statute and also go to the [4:58] secondary sources? Well, that's what I do, Senator. But you only go if it's ambiguous. [5:04] Well, because the plain words of the, the words, you know, the plain meaning of the words in front of [5:11] you is, are what guide you. And you, you apply the common understanding of the words. I guess what [5:17] I'm asking you is, Your Honor, what, why? Don't you want to just, don't you want to look to the, the [5:24] problem that the legislature was trying to solve? Why do you want to be a slave to the plain words that [5:31] reasonable people can disagree of? Why don't you just start with, I've got a statute. Um, [5:38] let me see what problem the legislature was trying to solve in, in, uh, in interpreting this statute. [5:44] I have done that, Senator, and I don't disagree with that approach, but. But you said you were a [5:48] textualist. You don't even get to that approach unless the words are ambiguous. Correct. I agree with that. [5:54] And so. I know. So which is it? Well, you look at. Do you always, are you always a slave [6:02] to the words and the debate about plain meaning? Or do you step back and go, plain meaning or not, [6:08] I want to look at, at, at the problem the legislature was trying to solve? Which, which is it? [6:14] Well, Senator, the best way to understand what the legislature intended. Yeah, but first, [6:20] our chairman's a great guy. He's, he's like, awesome. He's going to cut me off anyway. Uh, [6:25] tell me which one you use. Senator, as I'm trying to say, [6:31] when you're trying to discern the legislative intent, you first look at the words the legislature [6:37] itself used and you apply. And let's suppose, let's suppose they're plain. They're plain to you. [6:44] I'm sorry. What? Let's suppose the words are clear. Okay. Why don't, why you would stop there, [6:49] right? You apply the words. Yes. Okay. Why? Why don't you go? Well, you know, I want to get this [6:56] right. So let me, let me adopt a belt and suspenders approach. Even though the words are plain, [7:03] let me delve into the legislative history and try to understand what problem the legislature [7:08] is trying to solve. Why not do that? Because the language tells you what it is they're trying to [7:14] do. You can't go further than the language of the statute. Well, again, Senator, if there's some [7:20] doubt, when you look at even if there's no doubt, not a doubt in your mind. That's why you, because [7:27] you're carrying out the will of the people. It's the will of the people that's expressed in the pages. [7:32] You're trying to apply a statute passed by the legislature. Correct. Okay. Um, can I ask one more? [7:40] Um, tell me how to say your name, your last name, sir. It's Mativi, Senator. Mr. Mativi. I'm 17, [7:50] and I go to work for McDonald's, go to apply for a job, and I'm wearing a, uh, a burqa. And, uh, [8:01] the McDonald's manager says, I really want to hire you, but, uh, we don't allow religious symbols [8:10] at my restaurant, uh, uh, or at our restaurants. Uh, what does the law say about that? [8:17] Uh, the law prohibits the, the application of a religious test applied by the government, [8:27] right? Not by private employers. So I would say that's the basis of it. [8:32] You sure about that? Well, it depends on whether, I mean, there's, there's other factors. [8:36] Can, can, let me just ask you, can McDonald's say we have a, we have a policy against religious [8:42] symbols and you can't wear a burqa? Who's going to win? McDonald's or the, the person wearing the [8:49] burqa? Honestly, Senator, I'm not sure who would win in that situation. I'd need to know more facts. [8:55] I appreciate your honesty. Thank you. Thanks for your indulgence. Uh, Mr. Chairman. [9:00] Anything for you, Senator? I especially appreciated your commentary and listen carefully, Eric, [9:07] and you're right about courage. It's, it's, it's easy to play to the crowds, but, uh, when the going [9:16] gets tough and you got to follow the law and it's not going to be, be, uh, popular, that's what the [9:24] rule of law is all about. That's right. That's right.