question, i don t view the issue in the independent counsel statute and the morrison v. olson as dealing with a long passed statue and a an obscure not relevant issue. the reason you reached out and volunteered that you loved to overturn morrison v. olson isn t because scalia wrote a powerful and moving dissent. it s because of a view of the executive branch having all of the power of the executive branch in the president s hands that you have articulated across speeches, interviews, writings and opinion. an opinion this year. that s really your view of the executive branch. i ve not i ve never said that. i ve never said that, number 1. they re two issues here. i want to be very clear on them so people understand that, too. this is how i read your dissent in phh this year, arguing, advance ago unitary executive theory. and i refer to a single president.
i said that and you said special counsel fireable at will or only for cause. so that s the hypothetical that you re asking me. i think what that depends on is there some kind of restriction on for calls for protection ex-regu ex-regu ex-regulaly or statutorily that is permissible. that is the kind of open question, gray area question that you would want to hear briefs, get the oral arguments, keep an open mind on. the old independent counsel had a lot of moving parts to it, all of which were novel and together produced justice scalia s dissent. i don t think any one aspect. so given your enthusiasm for justice scalia s dissent, given your choice to say, forgive me,
of independent agencies general. the humphries executor [protesting in the background]. i think she s referring there i read her as referring to independent agencies are traditional and permissible. the independent counsel statute is different from the independent agencies that existed with the federal trade commission securities and exchange commission. i did not real her old article to in any way let s put it this way. justice kagan may have complimented scalia s dissent. you criticized the independent counsel statute as a travesty. i m trying to get to the bottom of why you held that view and said it in a speech two years on. olson, was a one-off case about a one-off statute that has not existed in 20 years. the statue is gone. the case as justin kagan i
or arguing nor the unitary executive theory that scalia and his dissenters argued. i ll give you another point. you said justice scalia never had better quote than in morrison v. olson. you go on to say you believe his views will one day be the law of the land. i assume here you re talking about the constitutional analysis in scalia s dissent and you express a hope and expectation that it will be the law of the land. you sit before me to be a nominee that is a seat within your reach. again, senator, i want to avoid melding a lot of different things into one. they re very important to keep distinct here, very important. the first is the independent counsel statute. i view morrison is only about the independent counsel statute. i realize you have a different view on that. if it s only about the
first judicial hero, chief justice rehnquist. chief scalia dissented in a well crafted dissent. for those seven justices, they wrote an important decision which i believe you have challenged and criticized because it restrained the president s power to fire the independent counsel. just two years ago, you were asked at a public event to name a case that deserved to be overturned. any case. after a pause, you said i can think of one. there s some chuckling. you said well, sure. morrison v. olson. i m struck by that having watched that speech. not matsu, not cases that taught to all first year law students as terrible examples of shameful decisions. no, you choice morrison v. olson to say it s already been effectively overturned, which i disagree with and i would put the final nail in the coffin. so here s a recent statement by a sitting d.c. circuit judge who