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Sen. Kennedy STUMPS Judicial Nominee Matthew Byrne | Explosive Questions on Race, Gender Go Viral
Matthew Byrne faces intense scrutiny as Sen. Kennedy delivers a series of explosive questions on race, gender, discrimination, and constitutional law during a high-stakes confirmation hearing.

A dramatic Senate hearing is making waves across the political world after Sen. Kennedy stumps judicial nominee Matthew Byrne with tough questions on race, gender, suspect classifications, and equal protection under the law. The exchange quickly became one of the most talked-about moments of the hearing as Matthew Byrne was pressed to explain complex constitutional principles while facing rapid-fire questioning from the Louisiana senator.



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Transcript
00:00Judge Byrne, you were here when Senator Lee talked about the non-delegation doctrine.
00:08I was.
00:09Yeah, I got a little confused.
00:10What is the non-delegation doctrine?
00:14The non-delegation doctrine refers to the idea that Congress may not give or delegate its lawmaking authority to an—
00:26I'm sorry.
00:27It's okay.
00:29The idea that Congress may not give or delegate its lawmaking authority to a regulatory body, that the legislative power—
00:36You can't give it to anybody, can it?
00:38True, anyone.
00:39You can't give it to another branch of government, right?
00:41Correct.
00:42Okay.
00:48And what does that have to do with the major questions, doctor?
00:53I mean, Senator Lee certainly explored some overlap between the two.
00:56I had not actually considered personally the overlap between the two, but I think I can see some relationship.
01:04The major questions doctrine is a little bit different.
01:06It is an approach the Supreme Court and some other courts have applied in analyzing statutes in essentially reaching the
01:16conclusion that Congress would not give broad rulemaking authority to an agency just based on a few words or a
01:28short, ambiguous phrase.
01:29The idea is that if Congress is granting agency rulemaking authority, it would be clear in doing so, and to
01:37the extent that a statute isn't clear in that respect, the courts can sometimes potentially find that the major questions
01:46doctrine was violated.
01:47So it's sort of the major questions doctrine is kind of a subset of the non-delegation doctrine.
01:53Would that be fair?
01:54I think, yes, that would.
01:55And basically, the major questions doctrine just says, look, Congress can give a regulatory agency, the executive branch, power over
02:06a major question of social significance.
02:10But if Congress is going to do it, they've got to be clear.
02:13They've got to say it big as Dallas.
02:15They can't just imply it, right?
02:17That's correct, Senator.
02:18Okay.
02:19All right.
02:19We'll clear that up.
02:20Tell me what a suspect classification is and how you get to be one.
02:25Suppose I want to be a suspect classification.
02:28What do I have to do?
02:29Well, suspect classification wouldn't necessarily refer to a person, but rather to the idea that in different contexts, it would
02:37be inappropriate to treat people differently based on a suspect's character.
02:45But to get to be a suspect classification or a part of one, I agree with you, it's not just
02:53a person.
02:56What requirements do you have to meet?
03:00Senator, I'm not sure exactly what requirements you're referring to, but there would be different examples, such as treating someone
03:05different based on race or sex.
03:08I know.
03:08Race and lineage, ethnic origin.
03:11But, I mean, did the Supreme Court just pick those out of the air?
03:16Well, certainly there are statutes that protect those.
03:21No, they didn't do it on a statute.
03:23Well, the Constitution prohibits the government from treating people differently based on that.
03:29The Constitution doesn't say these are the people.
03:33The Constitution doesn't define suspect classification.
03:36The Supreme Court did that, right?
03:38I think that's correct.
03:39Okay.
03:43And if I'm, for the court, arguing that a particular group is a suspect classification, what are the definitions, what
03:53are the characteristics I'm going to use to define?
03:58One is a history of discrimination, right?
04:00Yes.
04:01I'm going to show that.
04:02A history of discrimination.
04:03I think immutable characteristics.
04:05Immutable characteristics.
04:06Bingo.
04:07That's right.
04:08Right.
04:10An absence of political power.
04:15Right?
04:16I believe the court has discussed that, yes.
04:18Yeah.
04:19And that immutable, an immutable characteristic, which doesn't affect my ability or the suspect classification's ability to contribute to society.
04:31Right?
04:33That's correct.
04:35Right.
04:35And what are the suspect classifications?
04:38What are they?
04:40Yeah.
04:41Senator, I'm not sure if I could provide a list.
04:43There are only two.
04:46Race.
04:47Race and sex.
04:48Ethnic coercion.
04:49Okay.
04:49How come sex isn't a fully suspect classification?
04:55I mean, you've got women have a history of discrimination.
04:59It's an immutable characteristic unless you go get a sex change operation.
05:04Traditionally, they've been politically disadvantaged.
05:07And being a woman has nothing to do with your merit or your ability to contribute to society.
05:14So how come gender isn't a suspect classification?
05:17Senator, I'm sorry, but I don't remember the specific case, if there was one, when the court would discuss that
05:22issue or analyze it.
05:23Do you think they ought to be?
05:25Certainly.
05:26It's not a gavel out here.
05:28It's not like a slight tapping out here.
05:31Go ahead.
05:31Can you finish answering?
05:33Give an answer, and then we want to quickly go to Blumenthal.
05:36Thank you, Chair.
05:37Certainly, women should be protected from discrimination.
05:40It's important to have laws of that nature as to whether they should be deemed to be a suspect classification
05:47in the specific context you're talking about.
05:50If that has not already been decided by the court, it would be inappropriate for me to give, I guess,
05:55an advisory opinion on that issue.
05:56But women certainly should not be subject to discrimination or different treatment by the government.
06:00Okay.
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