Live blog of confirmation hearings, Day 2: Kavanaugh answers 'Purple Party' president hypothetical
Supreme Court nominee Brett Kavanaugh. Screenshot from PBS.
U.S. Supreme Court nominee Brett Kavanaugh withstood a long day of questions by members of the Senate Judiciary Committee on Wednesday.
Kavanaugh was careful in avoiding pronouncements on issues that could come before him as a judge, and he refused a suggestion that he pledge to recuse himself on any future issues concerning criminal or civil liability for President Donald Trump.
He also said it was not his role to request a delay in the hearing to allow time for the release and review of documents from his time as a staff member and lawyer in the George W. Bush administration.
But Kavanaugh did answer a hypothetical question about a future president from “the Purple Party” who spurned motorcades and killed someone while driving drunk. Sen. Ben Sasse, R-Neb., laid out the hypothetical and asked Kavanaugh whether that Purple Party president would be immune from being sued or charged with a crime.
No one has ever said that the president is immune from civil or criminal process, Kavanaugh answered. The only question is whether the process should occur while the president is in office, he said.
Kavanaugh said the Supreme Court ruled in the Paula Jones civil case against President Bill Clinton that the president is subject to civil process. In criminal cases, however, the Justice Department has long taken the position that a criminal case shouldn’t be brought until after a president leaves office, he said.
But delaying prosecution doesn’t necessarily prevent investigations, Kavanaugh added.
Kavanaugh didn’t say whether he believed Roe v. Wade was correctly decided, though he did say the case has been reaffirmed many times over the past 45 years, including in Planned Parenthood v. Casey in 1992. The Casey court didn’t just reaffirm Roe, it also examined the factors in stare decisis in deciding not to overrule Roe, Kavanaugh said.
“That makes Casey a precedent on precedent,” Kavanaugh said.
Sen. Richard Blumenthal, D-Conn., suggested that Kavanaugh had signaled his stance against Roe v. Wade in Garza v. Hargan, a case that allowed an immigrant teen being held in a government shelter to have an abortion. Kavanaugh had dissented from the decision by the U.S. Court of Appeals for the D.C. Circuit.
Blumenthal said Kavanaugh used the term “abortion on demand” in his dissent, and that is a code word in the anti-abortion community. He also said Kavanaugh had referred to Roe as “existing precedent,” which suggested that it may not exist as precedent in the future.
“These were your bumper stickers” in a campaign for the Supreme Court, Blumenthal said. “Abortion on demand, existing precedent.”
Kavanaugh said he wasn’t familiar with any code words, and his dissent was based on on parental consent precedent.
Protesters occasionally interrupted the hearing, but Kavanaugh and senators took it in stride, pausing patiently until protesters were escorted out of the room. That contrasted with the Tuesday session, when Sen. Orrin Hatch, R-Utah, complained that the committee should not have to “put up with this type of insolence” from protesters.
The hearing resumes at 9:30 a.m. ET on Thursday. Live blog posts from Wednesday’s hearing are below.
9:34 p.m. ET. Sen. Kamala Harris, D-Calif., asked Kavanaugh about his use of the term “racial-spoils system” in a Wall Street Journal op-ed. Harris asked whether Kavanaugh was aware the term was associated with white supremacists. Kavanaugh said he was not aware of that.
9:28 p.m. ET. Sen. Kamala Harris, D-Calif., asked whether Kavanaugh had ever had a conversation with anyone at the Kasowitz Benson Torres law firm about special counsel Robert Mueller’s investigation. President Donald Trump’s personal lawyer, Marc Kasowitz, is a name partner.
Kavanaugh said he is not remembering anything, but he would be happy to have his memory refreshed.
Sen. Mike Lee, R-Utah, said law firms can have changing personnel and Kavanaugh should have a list of the people working at the law firm.
Kavanaugh then answered that he doesn’t know everyone who works at the law firm, so he can’t answer the question.
Harris asked whether Kavanaugh had ever had a conversation with anyone about the Mueller investigation.
Kavanaugh said the Mueller investigation is in the news every day and he has talked to fellow judges about it. So the answer is yes, he said.
Harris said she concluded that Kavanaugh is not going to answer the question about the Kasowitz firm.
9:12 p.m. ET. Kavanaugh commented on big issues coming down the pike. They include how technology affects the concept of speech and Fourth Amendment rights, war powers and cyber war, he said.
There will be future crisis moments for the Supreme Court, and those are usually unpredictable, Kavanaugh said. He cited the Sept. 11 attacks and the issues arising from terrorism as an example.
9:04 p.m. ET. Sen. John Kennedy, R-La., asked Kavanaugh about cameras in the courtroom.
Kavanaugh said the D.C. Circuit has adopted same-time audio, and he thinks that has worked for the circuit judges on his court.
Kavanaugh said other justices had said before joining the Supreme Court that they favored courtroom cameras, then appeared to change their position after confirmation. Kavanaugh noted that when he joins the court, he will be on a team of nine, and he needed to be cautious in addressing the issue.
Kavanaugh said that oral arguments give the justices a chance to test ideas, and it’s wrong to characterize a justice’s questions as indicating that person is leaning one way or another. The situation is different when the justices are issuing decisions, Kavanaugh said.
“If I were starting,” Kavanaugh began, then said he would stop there.
8:48 p.m. ET. Sen. Mike Lee, R-Utah, said Booker had questioned Kavanaugh about a racial-profiling email designated “committee confidential.” Lee said Kavanaugh could be questioned about the document in closed session, or processes could be followed to allow the document to be used in questioning in open session. But Kavanaugh should not be questioned about a document he isn’t allowed to see, Lee said.
Lee said he doesn’t know why the document was designated “committee confidential,” but procedure has to be followed.
8:15 p.m. ET. Sen. Cory Booker, D-N.J., asked Kavanaugh why he said in a 1999 interview with the Christian Science Monitor that he envisioned the Supreme Court saying in the next 10 to 20 years that we are all one race in the eyes of the government.
Kavanaugh said the comment was aspirational and it was based on “hope.”
Booker then asked Kavanaugh if he agreed with Justice Antonin Scalia that it’s never permissible to use race to remedy past discrimination.
Kavanaugh said he referenced Scalia in a brief for a client. He added that Supreme Court precedent allows race-conscious programs in some situations.
Booker pressed Kavanaugh whether he believes having a diverse student body is a compelling government interest. The Supreme Court has said so, Kavanaugh answered. He would not give his own personal opinion.
Speaking quickly, Booker moved on to a South Carolina voter ID opinion by Kavanaugh. When Kavanaugh began to explain the decision, Booker cut him short. Booker asked about a poll tax, and talked about people who died trying to support voting rights.
Booker said his concern is that someone who believes we are one race will be blind to the reality of poor people throughout the country.
Kavanaugh said the unanimous voter ID decision had blocked implementation of the law in 2012, and required rewriting of a “reasonable impediment” provision governing when people didn’t have to have an ID to vote. “I was all over the real world effects” of the ID law, Kavanaugh said.
7:39 p.m. ET. Sen. Mike Crapo, R-Idaho, cited statistics that found Kavanaugh agreed with the majority in about 97 percent of the cases heard by the D.C. Circuit. Thirteen of Kavanaugh’s cases were appealed to the the Supreme Court, and Kavanaugh said he believed there was just one reversal.
“It appears to me,” Crapo said, “that you are within the mainstream of the American judiciary.”
Crapo also referred to decisions written by Kavanaugh that sided with people alleging discrimination at work. In another decision, Kavanaugh ruled on behalf of a criminal defendant.
In the criminal case, United States v. Nwoye, a woman claimed ineffective assistance by counsel because her lawyer failed to present a battered woman’s syndrome defense. The woman claimed she had been beaten and forced to participate in an extortion scheme. Kavanaugh said the woman was prejudiced by her lawyer’s failure to introduce expert evidence on battered women’s syndrome.
6:55 p.m. ET. Sen. Mazie Hirono, D-Hawaii, asks whether Kavanaugh ever made any unwanted requests for sexual favors since he became an adult, and whether he ever faced discipline or entered into a settlement for misconduct.
Kavanaugh answered no to both questions.
Hirono referred to allegations of sexual misconduct against Judge Alex Kozinski of the San Francisco-based 9th U.S. Circuit Court of Appeals. Kavanaugh had clerked for Kozinski from 1991 to 1992.
Hirono asked whether Kavanaugh received inappropriate emails from Kozinski; Kavanaugh said he didn’t remember anything like that.
Hirono asked whether Kavanaugh ever witnessed or heard of allegations of sexual harassment by Kozinski; Kavanaugh said he was not aware of any allegations.
Hirono asked whether Kavanaugh believed the women who accused Kozinski. “I have no reason not to believe them,” Kavanaugh replied. He went on to say that he would report sexual harassment by a judge if he were aware of it.
6:05 p.m. ET. Sen. Richard Blumenthal, D-Conn., said that Kavanaugh was not on Donald Trump’s list of potential nominees in May 2016, but he was added to the list in November 2017.
Blumenthal suggested that Kavanaugh made the later list by signaling his stance against Roe v. Wade in Garza v. Hargan, a case decided by the U.S. Court of Appeals for the D.C. Circuit.
In Garza, Kavanaugh dissented from a decision allowing an immigrant teen being held in a government shelter to have an abortion.
Blumenthal said Kavanaugh used the term “abortion on demand” in his dissent, and that is a code word in the anti-choice community. In addition, Kavanaugh referred to Roe v. Wade as “existing” Supreme Court precedent.
Referring to Roe as “existing precedent” is like someone introducing his wife as his “current wife,” Blumenthal said. That introduction would lead someone to believe that the wife might not be around for long, according to Blumenthal.
“These were your bumper stickers” in a campaign for the Supreme Court, Blumenthal said. “Abortion on demand, existing precedent.”
In addition, Blumenthal said, Kavanaugh never stated in the opinion that the Constitution protects a right to choose abortion.
Kavanaugh said one reason he was considered for the later list was due to support expressed by judges and lawyers who said he should be considered for the Supreme Court.
Kavanaugh said he wasn’t familiar with any code words, but Chief Justice Warren Burger had used “abortion on demand” in his Roe v. Wade concurrence.
Kavanaugh said his dissent in the teen abortion case was based on parental consent precedent, and the cases recognize there can be some delay for consultation.
5:40 p.m. ET. Sen. Richard Blumenthal, D-Conn., asked Kavanaugh whether he would pledge to recuse himself on any future issues concerning criminal or civil liability for President Donald Trump.
Kavanaugh began talking about the need for an independent judiciary, and said he could not make commitments in particular cases. Blumenthal said he was taking Kavanaugh’s answer as a refusal to commit himself.
5:18 p.m. ET. Sen. Ben Sasse, R-Neb., asked Kavanaugh about an en banc dissent in which he said the structure of the Consumer Financial Protection Bureau was unconstitutional. Kavanaugh would have severed a provision that allowed removal of the director only for cause and allowed the rest of the law creating the CFPB to stand.
Kavanaugh told Sasse the Consumer Financial Protection Bureau was headed by a single person, and he saw two problems with the structure.
First, Kavanaugh said, the structure is a departure from historical practice. Second, Kavanaugh said, there is a diminution of presidential authority because the president could not remove the agency head.
From his perspective, Kavanaugh said, he was concerned about an agency head that is not accountable to anyone.
5:04 p.m. ET. Sen. Ben Sasse, R-Neb., presented a hypothetical. Imagine 10 years in the future, there is a president from the Purple Party and he or she decides not to ride in motorcades. The president is driving drunk one night and kills someone. Is the president immune from being sued or charged with a crime? Sasse asked.
No one has ever said that the president is immune from civil or criminal process, Kavanaugh answered. The only question is whether the process should occur while the president is in office, he said.
Kavanaugh said the Supreme Court ruled in the Paula Jones civil case against President Bill Clinton that the president is subject to civil process.
The Justice Department has taken a stance on the criminal question, he said. For 45 years, the Justice Department has taken the position that the timing of the criminal process should be after the president leaves office, Kavanaugh said. But delaying prosecution doesn’t prevent investigations, necessarily, Kavanaugh added.
The foundational principle is that no one is above the law, Kavanaugh said.
4:35 p.m. ET. Sen. Christopher Coons, D-Del., asked Kavanaugh about the independent counsel law, passed in the wake of the Watergate scandal. The law restricted when the president could fire an independent counsel. Coons said Kavanaugh had once described the statute as a constitutional travesty, and he asked what Kavanaugh’s views are now.
Kavanaugh said the statute was not reauthorized in 1999, and Sen. Dick Durbin, D-Ill., had himself called the law unrestrained and unconstitutional.
Kavanaugh said his description of the statute was consistent with Justice Antonin Scalia’s dissent in Morrison v. Olson, a Supreme Court case that upheld the independent counsel law. Kavanaugh described Morrison as a “one-off case” about a statute that doesn’t exist anymore.
The special counsel system now in place is different than the independent counsel system, Kavanaugh said.
Can the special counsel be fired at will, or only for cause? Coons asked. Kavanaugh said that is an open question in which you would need to review the legal arguments and would need to keep an open mind.
Kavanaugh also said he has never taken a position on the constitutionality of indicting a sitting president.
3:50 p.m. ET. Sen. Ted Cruz, R-Texas, referred to “overheated rhetoric” by some Democrats on the Senate Judiciary Committee and hearing protesters. Cruz cited statistics about the agreement rate between Kavanaugh and Supreme Court nominee Merrick Garland, a D.C. Circuit judge who did not receive a confirmation hearing after his nomination by former President Barack Obama.
Cruz said Kavanaugh and Garland voted together 93 percent of the time. Garland joined 27 of 28 opinions issued by Kavanaugh when they were on the panel together, Cruz said. Out of Garland’s 30 written opinions, Kavanaugh joined 28 of them, according to Cruz.
3:24 p.m. ET. Sen. Amy Klobuchar, D-Minn., asked Kavanaugh whether he has any position on the release of documents from his time as staff secretary to former President George W. Bush.
Kavanaugh said it isn’t his role to decide.
Klobuchar asked whether a good judge would grant a continuance to someone who had just received 42,000 documents on the eve of trial. Kavanaugh wouldn’t comment. Klobuchar was referring to the late release of documents concerning Kavanaugh on the eve of his confirmation hearing.
Moving to another topic, Klobuchar said Kavanaugh had told her in their meeting before the hearings that he believed Congress would act if a president did something “dastardly.” Kavanaugh had used that word in a University of Minnesota Law Review article that argued impeachment rather than indictment is the best way to deal with a president who “does something dastardly.”
Kavanaugh said he wanted to underscore the article was a proposal for Congress to insulate a president from suits while in office. Kavanaugh said he did not take a position on the constitutionality of criminal investigation and prosecution of a president. And the question of what constitutes an impeachable offense is for the House and Senate to decide, he said.
2:56 p.m. ET. Sen. Mike Lee, R-Utah, asked Kavanaugh about his favorite Federalist Papers. Kavanaugh was able to rattle off papers, their numbers, and their topics. Lee said Kavanaugh’s answers were “brilliant” and a great “greatest hits list.”
2:40 p.m. ET. Protesters shout and are escorted out of the hearing from time to time. Some senators expressed irritation at the protests yesterday. Today, reaction to the protests is more muted. Generally, senators and Kavanaugh patiently wait until the protesters are gone and then resume talking.
2:15 p.m. ET. Sen. Sheldon Whitehouse, D-R.I., asked Kavanaugh whether he had any knowledge that the Federalist Society “was insourced into the White House” to recommend judicial nominees to the Donald Trump administration.
As Whitehouse spoke, a staff member held up a sign listing groups that funded the Federalist Society, including some donors listed as “anonymous.” Whitehouse asked whether Kavanaugh had concerns about the Federalist Society’s role in the process.
Kavanaugh replied that he was the president’s nominee, and he knows Trump consulted widely with others about finalists for the nomination.
Whitehouse asked Kavanaugh whether the American public should be concerned about dark money being used to support a Supreme Court nominee. If there was a significant special interest funding the group responsible for selecting you, Whitehouse asked, would that be a matter of concern? Whitehouse suggested groups funding the Federalist Society could also be funding the Judicial Crisis Network, which is running ads for Kavanaugh.
Kavanaugh said there are ads for and against him. Whether there should be disclosure requirements about funding sources is a question for Congress, Kavanaugh said. He also said there are First Amendment implications and he would keep an open mind in any case raising the issue.
Whitehouse said he is also concerned about amicus briefs written by organizations without any disclosure of the funding sources for those organizations. A group may be called Citizens for Peace, Prosperity and Puppies, but that may not be an accurate description, he said.
Whitehouse said he didn’t think disclosure of funding sources for the brief alone is sufficient.
Kavanaugh said that when he reads amicus briefs, he pays attention to the quality of the arguments and not the parties behind them. He said he wants to maintain impartiality and integrity on the Supreme Court.
2:04 p.m.. ET. Sen. Sheldon Whitehouse, D-R.I., asked Kavanaugh whether he could give no assurance of being able to uphold a statute requiring insurers to cover pre-existing medical conditions.
Kavanaugh once again referred to “nominee precedent” that bars nominees from answering questions about how they would rule on cases or issues that could come before the Supreme Court.
“Got it,” Whitehouse said. “Everybody else does it, and your answer is still no.”
Whitehouse moved on to executive privilege, asking whether the privilege had to be asserted to be recognized. Who asserts executive privilege? Whitehouse asked.
Kavanaugh said it depends what type of executive branch document you are talking about. There’s not so much precedent on that, Kavanaugh said.
Isn’t it fair to say it belongs to the president? Whitehouse said. Kavanaugh said it also applies to the former president.
Is the assertion of executive privilege subject to judicial review? Whitehouse asked. Kavanaugh replied that the Supreme Court allowed judicial review in United States v. Nixon.
Whitehouse then said that the committee has received hundreds of documents with the words “committee confidential” and “constitutional privilege” on them, even though he is not aware that a privilege was asserted with regard to the documents.
Kavanaugh said he wanted to add that he doesn’t think formal assertions of privilege occur until there has been a subpoena.
1:44 p.m. ET. Sen. John Cornyn, R-Texas, talked about the Hamdan case in which Kavanaugh ruled for Osama bin Laden’s bodyguard and driver. Kavanaugh was working in the George W. Bush administration on the date of the Sept. 11 terrorist attacks.
Kavanaugh said his decision illustrates that the law applies to all who come before the courts in the United States.
To illustrate the importance of judicial independence, Kavanaugh said Truman appointees were the deciding votes in the Youngstown steel case barring the president’s seizure of steel mills.
1:33 p.m. ET. Sen. John Cornyn, R-Texas, recalled that Kavanaugh had helped prepare him for a Supreme Court case when he was attorney general of Texas.
The case involved Santa Fe Independent School District and the practice of allowing voluntary prayers by students before football games. The American Civil Liberties Union filed suit, and the Supreme Court struck down the practice as a violation of the establishment clause.
Chief Justice William H. Rehnquist dissented and said the majority opinion bristles with hostility toward religion, Cornyn said.
Kavanaugh said the Supreme Court has recognized religious liberty in more recent cases and cited the Good News Club case involving a Christian club that wanted to hold meetings after school.
1:15 p.m. ET. Sen. Dick Durbin, D-Ill., asked Kavanaugh about a D.C. Circuit case, Garza v. Hargan, in which the majority allowed an immigrant teen being held in a government shelter to have an abortion. Kavanaugh dissented.
Kavanaugh told Durbin the case involved first and foremost a minor. If the girl had been an adult she would have a right to obtain an abortion immediately, Kavanaugh said. As a minor, the government argued it was appropriate to transfer her quickly to an “immigration sponsor,” which was a family member or friend she could consult about the decision, Kavanaugh explained
Kavanaugh said there is no exact precedent on point, so he reviewed parental consent decisions by the Supreme Court.
Durbin interrupted to say the minor had already received a judicial bypass to allow the abortion.
Kavanaugh replied that the state bypass procedure is different than the government’s argument for a sponsor consultation.
Durbin interjected that Kavanaugh is adding a requirement that a sponsor be chosen, while the clock is ticking for an abortion.
Kavanaugh replied that he is not adding—he is a judge looking at the policy in light of Supreme Court precedent. Cases recognize that there can be some delay because of consultation procedures, Kavanaugh said. Kavanaugh said he made clear that the sponsorship had to happen very quickly, and it couldn’t be a ruse to prevent the abortion.
The girl was 17 years old, by herself, in a foreign country, being held in a government facility. Kavanaugh said. He considered whether the government policy was consistent with precedent, and he believed it was, Kavanaugh said.
12:58 p.m. ET. Sen. Dick Durbin, D-Ill., asks Kavanaugh to ask for a pause in the Senate Judiciary Committee hearings and to ask for release of additional documents.
Kavanaugh replies that those types of decisions are not for a judicial nominee to make. The decisions are up to the Senate Judiciary Committee and the Senate, he said.
Durbin also complained that Bill Burck, the public records lawyer for former President George W. Bush, seems to have some kind of magical power to decide which documents are being released.
Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, says the document process is consistent with federal law.
12:16 p.m. ET. Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, says he wants to explain an earlier exchange with Sen. Patrick Leahy, D-Vt., who wanted to use “committee confidential” documents in questioning Kavanaugh about warrantless surveillance and hacked Democratic emails.
Grassley said he had previously sent a letter about such documents. Sen. Amy Klobuchar, D-Minn., was the only person who responded by asking to be able to use “committee confidential” documents during the hearing. Leahy did not make a similar request by the timeline in the letter, Grassley said.
12:15 a.m. ET. Sen. Lindsey Graham, R-S.C., asks Kavanaugh how he would like to be remembered.
Kavanaugh responds that he would like to be remembered as a good dad and a good judge. Sen. Dianne Feinstein helpfully offers “a good husband.” Kavanaugh quickly agrees.
11:58 a.m. ET. Kavanaugh said he has seen judges who act “a little too full” of themselves, and he tries not to do that. He referred to one case in which a pro se litigant appeared before the D.C. Circuit to argue his case. The issue was whether one use of the N-word constitutes racial harassment.
Kavanaugh said he wrote a concurrence in the case explaining that a single use of the word does constitute a hostile work environment.
Kavanaugh talked about serving meals to the homeless and his recognition that we are all God’s children.
11:42 a.m. ET. Sen. Patrick Leahy, D-Vt., asked Kavanaugh if he ever raised questions about warrantless surveillance when he worked in the George W. Bush administration.
Kavanaugh replied that there was a lot going on, and he can’t answer that.
Leahy once again referred to “committee confidential” documents that he can’t cite. He previously raised the subject, he said, in August.
Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said he would try get any requested documents to Leahy, but he can’t provide them to the public.
11:37 a.m. ET. Sen. Patrick Leahy, D-Vt., asked Kavanaugh about his work preparing judicial nominees for former President George W. Bush. More specifically, Leahy asked Kavanaugh whether he was aware that a Republican Judiciary Committee aide, Manuel Miranda, had hacked into Democratic emails to aid in the preparation of judicial nominees.
Kavanaugh said preparation teams often discuss senators’ concerns, and his prior testimony was true when he said he never knew or suspected that Miranda had stolen Democratic emails.
Leahy questioned Kavanaugh about particular emails in which Miranda discussed Democratic concerns about potential nominees.
Kavanaugh asked to see a specific email, and Leahy said there were “committee confidential” emails he would like Kavanaugh to see. Leahy said there are at least six “committee confidential” emails that are directly related to the issue, and there is no apparent reason why they can’t be made public.
11:06 a.m. ET. Kavanaugh responded to a question by Sen. Orrin Hatch, R-Utah, about the Chevron doctrine, which holds that federal courts should defer to agency interpretations of a law when it is ambiguous. Hatch noted that some of Kavanaugh’s writings express concern about the doctrine for allowing the executive branch to impose its own policy preferences.
“I am not a skeptic of regulation at all,” Kavanaugh said. “I am a skeptic of unauthorized regulation.”
Hatch noted that Kavanaugh has been criticized for ruling against environmental regulations. Kavanaugh said he has ruled both for and against environmental interests.
11:03 a.m. ET. Kavanaugh said he was working in Washington, D.C., when he clerked for Judge Alex Kozinski of the San Francisco-based 9th U.S. Circuit Court of Appeals from 1991 to 1992.
Kozinski said he doesn’t recall ever receiving any inappropriate email material from Kozinski, and he didn’t speak with or see him very often.
When the allegations of sexual misconduct against Kozinski first became public, Kavanaugh said, his first thought was that no woman should be subject to sexual harassment in the workplace, “including the judiciary, especially the judiciary.”
The allegations against Kozinski were a “gut punch for me; it was a gut punch for the judiciary. I was shocked, disappointed, angry,” Kavanaugh said.
10:50 a.m. ET. Kavanaugh said he was not involved in crafting the enhanced interrogation program for terrorism suspects, and he answered truthfully about his lack of involvement in his 2006 confirmation hearing for his seat on the U.S. Court of Appeals for the D.C. Circuit.
“I told the truth and the whole truth in my prior testimony,” Kavanaugh said in response to questions by Sen. Orrin Hatch, R-Utah.
“I was not read into that program, not involved in crafting that program, nor in crafting the legal justifications for that program.”
Sen. Dick Durbin, R-Ill., has questioned whether Kavanaugh was truthful in 2006 because of his involvement in a 2002 meeting in which Kavanaugh was asked how he thought Justice Anthony M. Kennedy would vote on an issue regarding Guantanamo detainees.
10:45 a.m. ET. Asked whether he owed loyalty to the president, Kavanaugh said he owes loyalty to the Constitution. He cited his opinion in the Hamdan case in which he overturned the conviction of an alleged terrorist because his offense wasn’t unlawful at the time of the alleged crime.
10:30 a.m. ET. Kavanaugh said he views United States v. Nixon, the Nixon tapes case, as one of the four greatest moments in Supreme Court history. The reason, he said, is that the Supreme Court stood up for judicial independence in a moment of national crisis.
Kavanaugh said the holding upheld a criminal trial subpoena to a president in the context of special counsel regulations then in effect.
Sen. Diane Feinstein, D-Calif., asked if a sitting president can be subject to a subpoena. Kavanaugh answered that he can’t give an answer to that hypothetical question.
Besides United States v. Nixon, Kavanaugh’s top cases are Marbury v. Madison, the Youngstown steel case, and Brown v. Board of Education.
10:30 a.m. ET. Sen. Diane Feinstein, D-Calif., remarked that deaths from illegal abortions ranged from 200,000 and 1.2 million in the 1950s and 1960s, according to estimates. Feinstein noted Kavanaugh has reportedly said Roe. v. Wade is settled law and asked what he meant by that.
Kavanaugh answered that one of the important things to keep in mind is that Roe v. Wade has been reaffirmed many times over the past 45 years, including in Planned Parenthood v. Casey in 1992. The Casey court didn’t just reaffirm Roe, it also examined the factors in stare decisis in deciding not to overrule Roe, Kavanaugh said.
“That makes Casey a precedent on precedent,” Kavanaugh said.
10:17 a.m. ET. Kavanaugh defended an opinion in which he said semiautomatic rifles were permitted under the Supreme Court’s Heller decision. Kavanaugh said the decision struck down a ban on handguns, many of which are semiautomatic.
“I was trying to follow strictly and carefully Supreme Court precedent,” Kavanaugh said.
Sen. Dianne Feinstein, D-Calif. asked Kavanaugh how he reconciled his decision with the hundreds of school shootings with assault weapons.
“Of course the violence in the schools is something we all detest and want to something about,” Kavanaugh said. Handguns and semiautomatic rifles are weapons used for hunting and self defense, and they are also used in violent crime, he acknowledged. That is what makes this issue difficult, he said.
He understands the issue, Kavanaugh said, but his job as a judge was to follow the Second Amendment.
10:03 a.m. ET. Kavanaugh also talked about the importance of precedent. His personal beliefs, he said, are not relevant to deciding cases. The role of precedent is rooted in the Constitution, ensures stability in the law and ensures predictability in the law, he said.
Kavanaugh also cited “nominee precedent” about how the current justices conducted themselves in nomination hearings. They made clear that they couldn’t they can’t cite cases or issues that may come before them, Kavanaugh said. That also means you can’t give a thumbs up or thumbs down on the precedent, he said.
9:58 a.m. ET. Supreme Court nominee Brett Kavanaugh cited United States v. Nixon on Wednesday when he answered a question about the qualities of a good judge.
Kavanaugh said he has identified the case—which ordered former President Richard Nixon to comply with a subpoena—as a top moment in judicial history.
“No one is above the law in our constitutional system,” Kavanaugh said. “In our system of government, our executive branch is subject to the law.”
As Kavanaugh spoke, protesters yelled and were escorted out of the room.
Kavanaugh said he is a “pro-law judge” who rules for the party with the best legal argument. Independence, he said, is “resisting public pressure, political pressure, it’s treating everyone equally.”
Original story:
President Donald Trump is keeping an eye on the confirmation hearings for U.S. Supreme Court nominee Brett Kavanaugh, which begin their second day at 9:30 a.m. ET on Wednesday.
Trump released a statement calling Kavanaugh “one of the most exceptionally qualified Supreme Court nominees in history,” and tweeted his criticism of Democrats.
The Senate Judiciary Committee hearings “are truly a display of how mean, angry and despicable the other side is,” Trump tweeted. “They will say anything and are only looking to inflict pain and embarrassment.”
The committee hearing on Tuesday got off to a rough start as protesters shouted and Democrats sought to delay the hearings to allow time for the release and review of documents. Seventy protesters were arrested, Politico reports.
See also: ABA committee gives Kavanaugh a well-qualified rating
An Associated Press photographer snapped a photo of Kavanaugh rebuffing a handshake offer on Tuesday from Fred Guttenberg, whose daughter died in February during the mass school shooting in Parkland, Florida, the Washington Post reports. Liberals said Kavanaugh was snubbing the victim of gun violence, while conservatives said Kavanaugh was likely confused because a security guard was intervening.
Kavanaugh will be questioned by members of the Senate Judiciary Committee on Wednesday.
….looking to inflict pain and embarrassment to one of the most highly renowned jurists to ever appear before Congress. So sad to see!
— Donald J. Trump (@realDonaldTrump) September 4, 2018
Fred Guttenberg, the father of Jamie Guttenberg who was killed in the shooting in Parkland, Fla., left, tries to shake hands with @realDonaldTrump's Supreme Court nom., Brett Kavanaugh, right, during a lunch break. Kavanaugh did not shake his hand. (AP Photo/Andrew Harnik) @ap pic.twitter.com/smcCGuLT6X
— Andrew Harnik (@andyharnik) September 4, 2018
