John Kennedy Puts Nominee on the Spot With Brutal Legal Hypothetical That Stuns Hearing Room

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[00:00:00]It's a major east or or north-south uh uh traffic corridor.

[00:00:05]Um very busy.

[00:00:07]A lot of a lot of traffic. I don't know if you saw the news yesterday, but about 200 protesters in New York um sat down in the middle of 3rd Avenue.

[00:00:19]Uh completely blocked traffic.

[00:00:22]Uh they were wearing t-shirts that said, "No war, no ice, free Palestine."

[00:00:27]Um completely shut everything down for for about an hour.

[00:00:31]Police had to come in. They arrested some of them. This is New York. Nothing will probably happen to them.

[00:00:36]But the But the point is they blocked traffic severely.

[00:00:40]Um Let's suppose a medical transportation service was um trying to get a a uh uh a heart to a transplant plant patient at a hospital nearby.

[00:00:55]And obviously the traffic uh jam delayed him and the the patient died.

[00:01:00]You with me?

[00:01:02]Yes, Senator. All right. Does the patient's uh family have a cause of action against the uh protesters or the leader of the protest?

[00:01:11]Does the patient's family have a cause of action or not? That's how John Kennedy turned a routine confirmation hearing into a legal stress test. He wasn't just asking about protesters in Manhattan. He was forcing a nominee to draw a bright line fast on causation, liability, and responsibility. And that's where the pressure ramps up.

[00:01:26]>> In any hypothetical, I would hesitate to completely prejudge the situation without No, I'm not No, come on, counselor. Get Get me your legal opinion. This is a first year first year law student question. I believe they they would um more than likely. I think that would be a matter >> What would be the issues that would arise? I just want to understand how you think. Sure. I think that If If you're defending the leader of the protest, what's the first thing you're going to say? I'm defending the leader of the protest?

[00:01:49]>> Yeah.

[00:01:50]I would probably argue about causation and foreseeability. I mean, that would be really a state law negligence >> What do you mean causation? Well, for any negligence claim, uh one of the elements is is, you know, you have a duty to somebody, did you breach that duty, did you cause them an injury? And part of the duty causation calculus is how foreseeable that injury is.

[00:02:10]>> Okay. What's the difference between legal causation and proximate cause?

[00:02:14]So, cause in fact and proximate cause.

[00:02:16]Yeah. Yeah, so cause in fact is the specific cause of death uh or or injury, rather. And in this case, it would probably be whatever heart ailment this poor person that you've described had would probably be the cause in fact of his death, but proximate cause does not always have to be the cause in fact, and there can be multiple causes. So, um a proximate cause is, but, you know, but for this thing happening, this injury may not have occurred.

[00:02:40]>> What if the the the text of the statute's not clear? What do you do?

[00:02:44]Well, one of the the approaches that I do use is I want to look at the language in context of the the statute as a whole and try to harmonize the language.

[00:02:53]Uh I may use go to dictionaries to help me find definitions of words.

[00:02:57]Uh Well, how ambiguous does the statute have to be before you're going to look to secondary sources?

[00:03:05]Well, ambig- ambiguity means it the the language is subject to two or more interpretations. And so, if there's language >> Reasonable interpretations. Correct.

[00:03:14]Well, I mean, does the does the does it have to be 50% ambiguous or 52% or 51%?

[00:03:24]Well, I'm not sure how to apply the 51 To me, ambiguity is >> asking you is how you apply it. Well, ambiguity means that the words that are used are susceptible to two or more different definitions. That's So, I don't know whether that's 50% >> you go I'm not suggesting you're wrong, but why do you go through that exercise?

[00:03:42]Why why do you want to spend hours agonizing and debating how many lawyers can dance on the head of a pin to just try to decide whether it's ambiguous?

[00:03:49]Why Why you just go look at the statute and also go to the secondary sources?

[00:03:54]Well, that's what I did, Senator. But you only go if it's ambiguous.

[00:03:58]Well, because the plain words of the the words you know, the plain meaning of the words in front of you is are what guide you. And you would you apply the common understanding >> I'm asking you is Your honor, what why?

[00:04:11]Don't you want to just Don't you want to look to the the problem that the legislature was trying to solve? Why do you want to be a slave to the plain words that reasonable people can disagree on? Why don't you just start with I've got a statute. Um let me see what problem the legislature was trying to solve in in uh in interpreting the statute.

[00:04:31]>> I have done that, Senator, and I don't disagree with that approach, but >> But you said you were a textualist. You don't even get to that approach unless the words are ambiguous.

[00:04:38]>> Correct. I agree with that. And so >> which is it?

[00:04:41]Well, you look at >> Do you always Are you always a slave to the words and the debate about plain meaning or do you step back and go plain meaning or not, I want to look at at at the problem the legislature was trying to solve. Which which is it?

[00:04:55]Well, Senator >> Um Tell me how to say your name.

[00:04:59]Your last name, sir? It's Matevi, Senator.

[00:05:01]>> Mr. Matevi, I'm 17 and I go to work for McDonald's.

[00:05:06]I go to apply for a job and I'm wearing a a burka.

[00:05:12]And uh the McDonald's manager says, "I really want to hire you, but uh we don't allow religious symbols at my restaurant."

[00:05:22]Uh or at our restaurants.

[00:05:25]Uh what does the law say about that?

[00:05:27]Uh the law prohibits the the application of a religious test applied by the government, right? Not by private employers. So, I would say that's the basis of the >> sure about that? Well, it depends on whether I mean there's there's other factors, right?

[00:05:42]>> Can Can let me just ask you, can McDonald's say we have a we have a policy against religious symbols, and you can't wear a burka."

[00:05:50]Who's going to win? McDonald's or the the person wearing the burka?

[00:05:55]Honestly, Senator, I'm not sure who would win in that situation. I'd need to know more facts.

[00:05:59]>> your honesty. Thank you. Thanks for your indulgence. Kennedy style is deliberate.

[00:06:03]Simple questions, real-world framing, and then no room to hide. The hypothetical is emotional. Blocked traffic, a delayed transplant, a death.

[00:06:10]But legally, it's anything but simple.

[00:06:12]To the nominee's credit, he doesn't rush it. He goes straight to negligence doctrine. Duty, breach, causation, foreseeability. That's textbook. Because in tort law, the hardest question isn't did something bad happen? It's who's legally responsible for it. Kennedy pushes. Come on, counselor. He wants a conclusion. But the nominee stays cautious, focusing on proximate cause, whether the harm is closely enough connected to the act. That's not dodging. That's recognizing how courts actually work. This isn't just about torts. It's about the edge of the First Amendment. Protest is protected, but blocking a major roadway, that falls into time, place, and manner restrictions. Government can regulate that. The unresolved issue is whether that violation translates into civil liability for downstream harm. And there's no easy answer. Court's split on how far liability should extend. Then Kennedy pivots, and this is where the hearing sharpens intellectually. He challenges the nominee. Why obsess over whether a statute is ambiguous? Why not always look at legislative intent?

[00:07:06]That's a direct hit on a core judicial philosophy. Textualists argue that under Article 1, Congress writes the law, and judges apply the words as written. Step beyond the text too quickly, and you risk rewriting the law from the bench.

[00:07:17]But Kennedy's critique lands. Language isn't always precise. If judges ignore the problem Congress was trying to solve, they can miss the point entirely.

[00:07:24]The nominee holds the line, start with the text, move outward only if necessary. It's disciplined. But Kennedy is exposing the tradeoff. Consistency versus flexibility. And then one more turn. Religious expression at work.

[00:07:36]Kennedy frames it simply, can an employer ban a burka? The nominee hesitates again. And here, the gap shows. Because while the First Amendment doesn't bind private employers, the federal law Title VII does require reasonable religious accommodation unless it creates undue hardship. So, this wasn't just a trick question. It was a test of how quickly the nominee could connect constitutional principles to statutory protections. And that's the through line of Kennedy's approach. He's not asking obscure legal theory. He's translating doctrine into everyday scenarios and demanding clear answers under pressure. The nominee meanwhile is doing the opposite, slowing things down, qualifying, avoiding overreach. Neither approach is wrong, but in a confirmation hearing that tension matters. Because the real question isn't just what the law is, it's how a judge thinks when the answer isn't clean.