{"articles":[{"reaction_config":[{"text":"Support","color":"#2ca788","stance":"support"},{"text":"Oppose","color":"#ef3e42","stance":"oppose"}],"id":8905,"title":"The Latest: Judge Kavanaugh Testifies at His Confirmation Hearing (Day 2)","html_content":"\n

by Causes | 9.5.18

10:20pm: It's Over. That's it, folks. Thanks for joining us. We'll be back tomorrow after soaking our hands in BENGAY for the night.

10:00pm: Tillis Lets Kavanaugh End Night on High Note. Sen. Thom Tillis (R-NC) faded out the 12-hour confirmation hearing asking the nominee about cases where he ruled in favor of employees and upheld restrictions to campaign finance and environmental regulations. He also noted that Kavanaugh had been accused of being unfriendly to the LGBTQ community, but had met with Log Cabin Republicans.

“You've got the most uncomfortable position, but a more comfortable chair than the people behind you,” Tillis smiled, bringing the hearing to a close.

9:40pm: \"Can you think of any laws that give the government the power to make decisions about the male body?\" Sen. Kamala Harris (D-CA) asked the nominee that very question. Kavanaugh responded that “there are medical procedures.” Harris repeated her question. After a protracted silence in the committee room, Kavanagh answered:

“I’m not thinking of any right now.”

9:30pm: Police Remove Entire Audience From Room During Sen. Kamala Harris’ Exchange With Kavanaugh: Immediately after being given the floor, Sen. Kamala Harris (D-CA) asked the nominee, “Have you discussed Mueller with anyone.” Kavanaugh responded he had, “with other judges I know.\" But he added he couldn’t remember if was at the law firm founded by Trump’s personal lawyer.

Here’s how the exchange continued:

Harris: You have an impeccable memory, how can you not remember whether you had a conversation about Mueller at that law firm?

Kavanaugh: I'm trying to think if there's anyone I know. I'd like to know the person you're thinking of.

Harris: I think you're thinking of someone, and you don't want to tell us.

At that point, Republican Sen. Mike Lee of Utah objected that D.C. was full of law firms. Protesters began screaming, “answer her question! Answer her question!” and Capitol Police kicked everyone in the audience out of the hearing.

9:15pm: Kennedy Asks Kavanaugh To Explain “Originalism”: Justice Antonin Scalia was known as an “originalist” in that he looked to interpret the words of the Constitution as they were originally written. Sen. John Kennedy (R-LA) noted that both Scalia and Justice Paul Stevens took an originalist approach to gun rights case DC v. Heller but arrived at different conclusions.

“Heller was rare case because there wasn't a body of existing precedent, because it's been done before,” Kavanaugh said. “The Second Amendment presented a challenge because of the prefatory clause [\" a well regulated militia\"], which required into how such clauses were used at the time.”

Just before this exchange, the nominee had said originalism means “you are trying to make [the Constitution] as objective as possible.”

Booker Probes About Affirmative Action & Racial Profiling: Sen. Cory Booker (D-NJ) questioned Kavanaugh about whether “having a diverse student body is a compelling interest” that supports affirmative action policies at the federal level. Kavanaugh replied that such efforts are “constitutional” and supported by precedent.

Booker asked about an email sent by a Bush administration colleague to Kavanaugh that argued in favor of racial profiling in security screening, to which Kavanaugh replied that he favored race-neutral security. Booker expressed concern that he read Kavanaugh’s response as signalling an openness to profiling while a race-neutral system is set up, which Kavanaugh couldn’t respond to because Booker didn’t provide a copy of the email.

Another Break: The Judiciary Committee has taken another break, and will return after 8:00pm.

Crapo Asks About Discrimination Ruling: Sen. Mike Crapo (R-ID) asked Kavanaugh about the case Ayissi-Etoh v. Fannie Mae, which involved an alleged hostile work environment at the quasi-governmental agency Fannie Mae caused by an executive shouting \"get out of my office ni**er.\"

Kavanaugh wrote in his decision in favor of Ayissi-Etoh:

\"It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor ― as Ayissi-Etoh alleges happened to him ― suffices by itself to establish a racially hostile work environment... No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African-Americans.\"

Hirono Raises Questions About Judge Accused of Misconduct: Sen. Mazie Hirono (D-HI) questioned Kavanaugh about his relationship with former Judge Alex Kozinski, who had been on the 9th Circuit prior to allegations of sexual misconduct.

Kavanaugh said that he didn't know anything about the allegations before they became public, and in response to Hirono questioning whether he believed the accusers the nominee said \"I have no reason not to believe them, senator.\" He went on to say that if he knew about sexual harassment he'd have reported it to his superiors on the court, Chief Judge Merrick Garland or Chief Justice John Roberts.

Flake Asks About Trump-Sessions Feud: Sen. Jeff Flake (R-AZ) asked the nominee about comments made by President Trump that were critical of Attorney General Jeff Sessions' decision to bring charges against two sitting GOP members of Congress.

Kavanaugh said that he couldn't comment on cases that may come before him on the bench.

Blumenthal Circles Back to Abortion: Sen. Richard Blumenthal (D-CT) asked Kavanaugh if his use of the terms \"existing precedent\" and \"abortion on demand\" were code-words to pro-life activists to signal his support for overturning Roe v. Wade.

Kavanaugh said he's unaware of such code words, and noted that then-Chief Justice Warren Burger used the phrase \"abortion on demand\" when he concurred with Roe.

5:23pm: Committee Takes a Break: The Judiciary Committee will return in 10 minutes.

Sasse Inquires About Presidential Immunity: In response to a question from Sen. Ben Sasse (R-NE) about whether a president has immunity from being charged for a civil or criminal offense, Kavanaugh said that no president has immunity and that the important question is whether the process occurs while the president in office.

In Paula Jones' civil case against President Bill Clinton, the Supreme Court ruled that the president is subject to civil process. For criminal cases, Kavanaugh noted that the Dept. of Justice position for 45 years has been that the criminal process should occur after the president leaves office ― which doesn't preclude investigations or make the president \"above the law\".

5:00pm: Coons Asks Kavanaugh About Executive Powers: In 1998, Kavanaugh wrote that he believes a president can fire - at will - a prosecutor who is criminally investigating him. Sen. Chris Coons (D-DE) asked the SCOTUS nominee if he still believes that.

“Is that still your view? I’m not asking for a recitation of precedent we will get into some precedent later, I’m just trying to make sure I understand if you stand by that publicly expressed view back in 1998.”

“I think all I can say, senator, is that was my view in 1998,” Kavanaugh said.

4:00pm: Cruz Highlights Agreements Between Kavanaugh and Garland: Democrats and other progressives have continued to be miffed by the Senate’s refusal to consider President Barack Obama’s nominee to the Supreme Court, Merrick Garland.

But Ted Cruz (R-TX) used his time with Kavanaugh to point out the high rate of agreement between Kavanaugh and Garland. Cruz told the room that Garland joined 96 percent of the majority opinions written by Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit.

“We’re trying hard to find common ground and as I’ve said before he’s a great judge, very careful, very hardworking,” Kavanaugh said of the court for which Garland is chief judge.

As the Washington Post explained, “A deeper analysis of the judge’s opinions by legal scholar Adam Feldman shows Kavanaugh well to the right of the average D.C. Circuit judge, but not as far to the right as some of his colleagues. The analysis put Garland in the middle.”

3:45pm: Kavanaugh Defends His Ruling On Net Neutrality: Kavanaugh dissented against the D.C. Circuit's decision to uphold net neutrality protections. Sen. Amy Klobuchar (D-MN) wanted to know why.

\"To me, it feels like Congress set up the FCC and the FCC is doing its job in a really complex subject matter. They put forward these rules on net neutrality and then you insert your judgment to say that they are unconstitutional. So, tell my why I'm wrong,\" she said.

The nominee responded that he based his dissent on the major rules doctrine, which, he said, is rooted in SCOTUS precedent.

\"I felt bound by precedent,\" Kavanaugh said.

3:30pm: Kavanaugh Again Sidesteps Fight Over His White House Documents: Sen. Amy Klobuchar (D-MN) asked the SCOTUS nominee if he had a personal objection to the White House releasing documents from his period as a staff secretary at 1600 Pennsylvania Ave.

\"Senator I'm not going to take a position. That's in my view a decision for the committee\" to decide, Kavanaugh said.

He added:

“That's a decision for the committee, and the executive branch and the presidential library.”

3:00pm: Senators Take a Second Recess: The committee will resume questioning Kavanaugh in 10 minutes. Sen. Amy Klobuchar (D-MN) is up next.

Kavanaugh Declines to Say If He’d Uphold Law on Preexisting Conditions: Sen. Sheldon Whitehouse (D-RI) had a heated exchange with the SCOTUS nominee on whether he’d uphold the Obamacare statute that requires insurance companies to provide healthcare coverage to people with preexisting medical conditions. During their private meeting, Kavanaugh had told Whitehouse he couldn’t assure the senator he’d uphold that law.

\"The statement you made, is it still accurate and true today?\" Whitehouse asked.

Kavanaugh tried to explain that making that assurance would compromise his independence as a Justice because the issue could reach the Supreme Court.

“I really just want you to say yes or no,\" Whitehouse said. \"I’m really capable of understanding it on my own.”

The nominee continued to push back, saying \"all eight sitting justices on the Supreme Court have made clear it would inconsistent with judicial independence, rooted in Article III, to provide answers on cases or issues that could come before us.\"

Kavanaugh Defends Dissent on Teen Abortion Ruling: Last year, the D.C. Circuit Court of Appeals ruled an immigrant teen in federal custody could obtain an abortion. Kavanaugh dissented. Democratic Sen. Durbin of Illinois wanted to know why.

The SCOTUS nominee argued it was because the girl was a minor and should be transferred to an immigrant sponsor whom she could consult with regarding her decision.

Durbin shot back that the teen had already received permission from a Texas judge to obtain the procedure.

\"Judge, the clock is ticking,\" Durbin said. \"The 20-week clock is ticking. She made the decision early ... You are suggesting she should have waited to have a sponsor appointed who she may or may not consulted in making this decision.\"

“I’m a judge, I’m not making the policy decision,” Kavanaugh replied.

Graham Gives Kavanaugh Opportunity to Address Parkland Dad: Yesterday, a photo went viral of Kavanaugh ignoring the outstretched hand of the father of a slain Parkland student.

Today, Sen. Lindsey Graham (R-SC) asked Kavanaugh if there was anything he’d like to say to Fred Guttenberg - the Parkland father - or any of the “many other people here with personal situations.”

Kavanaugh responded that he understood “the real-world effects of our decisions”:

“I’ve not lived in a bubble. And I understand how passionately people feel about particular issues. And I understand how personally people are affected by issues. And I understand the difficulties that people have in America. I understand for example, well, to start, I understand the situation of homeless people because I see them on a regular basis when I’m serving meals.\"

Durbin Presses Kavanaugh on Missing Documents: Sen. Dick Durbin (I-IL) questioned the SCOTUS nominee if he'd been aware that thousands of documents related to his time in the White House would be withheld from the Judiciary Committee.

\"No I was not involved in the documents process or substance,\" Kavanaugh replied.

\"No one told you, you would be the first Supreme Court nominee to assert executive privilege to limit access to 100,000 documents related to your time in the White House?\" Durbin asked.

After Kavanaugh suggested this was an issue for the Legislative and Executive branch to work out, Durbin stated:

\"You are now embarking on this journey in this committee denying us access to documents that were routinely provided for other nominees. You had to know this was taking place.\"

Senators Take a Voting Break: The Judiciary Committee has adjourned until after 12:45pm to allow senators to go to the floor to vote on the confirmation of Elad Roisman to be a Member of the Securities and Exchange Commission.

Graham Asks About Overturning Precedent: Sen. Lindsey Graham (R-SC) asked Kavanaugh about overturning precedential cases, like Roe v. Wade or Citizens United v. FEC, and whether he'd listen to arguments about overturning such precedents.

Kavanaugh replied that he'd \"have an open mind\" to all arguments, and that while \"precedent is an important part of system\" some arguments are better than others.

Leahy Inquires About Presidential Self-Pardons: Sen. Leahy (D-VT) asked Kavanaugh if the president has the power to pardon himself. Kavanaugh said that he couldn't respond to a hypothetical case that could come before and that:

\"The question of self-pardons is not something I've ever analyzed. It's a hypothetical question that I can't begin to answer in this context.\"

Video Used For the First Time in a SCOTUS Hearing: We knew it'd be a historic week on Capitol Hill, and Sen. Leahy (D-VT) just broke new ground by using video of a Supreme Court nominee in their confirmation hearing. The video came from Kavanaugh's testimony during confirmation hearings for his nomination to the D.C. Circuit.

Because this set a new precedent, Chairman Grassley (R-IA) read a statement explaining that the witness would have opportunity to put the video in its proper context.

Leahy Brings Up Stolen Bush Era Emails: Sen. Patrick Leahy (D-VT) questioned Kavanaugh about an incident from the early 2000s where a GOP staffer gained access to Democratic memos about Bush administration judicial nominees, including Leahy's.

Kavanaugh explained that he wasn't aware the staffer had stolen the memos, the contents of which the staffer discussed in meetings and emails without attributing the source.

Hatch Asks About Torture: Sen. Orrin Hatch (R-UT) asked the judge whether he was involved with the Bush administration’s “enhanced interrogation program”. Kavanaugh replied:

“I was not involved. I was not read into that program. I was not involved in crafting that program or crafting the legal justification for that program.”

Feinstein Asks About Guns & Abortion: Ranking Member Dianne Feinstein (D-CA) asked Kavanaugh about the Supreme Court’s decision in the gun rights case Heller and whether he believes that ruling protects ownership of “assault weapons” as it related to a ruling of his on the D.C. Circuit.

Kavanaugh explained SCOTUS’ ruling in Heller which struck down ban on semi-automatic handguns in “common use”, a standard he used to argue that the D.C. assault weapons ban violated the Second Amendment because semi-automatic rifles are in common use. He went on to note that machine guns ― which are fully automatic ― are banned.

Feinstein asked how he could “reconcile what you just said with the hundreds of school shootings”, to which Kavanaugh replied that he detests school violence as much as anyone but was bound by precedent.

Feinstein asked about other precedents related to abortion ― Roe v. Wade and Planned Parenthood v. Casey ― which Kavanaugh noted has been reaffirmed on several occasions and called “an important precedent of the Supreme Court”.

Feinstein also asked if a sitting president can be required to respond to a subpoena, a “potential hypothetical” which Kavanaugh said he couldn’t answer as it could be a case or controversy that he hears on the bench in the future.

9:30am: Grassley Gets Things Underway: Chairman Chuck Grassley (R-IA) started the questioning by asking Kavanaugh what influences his judicial thinking. Kavanaugh replied that the “first quality of a good judge in our system is independence” and that they must have “backbone”; and cited the examples of Brown v. Board of Education which desegregated public schools and U.S. v. Nixon which compelled President Nixon to turn over the Watergate tapes as significant moments of Supreme Court independence.

Kavanaugh went on to note case he heard while on the D.C. Circuit, Hamdan v. Rumsfeld, in which he ruled against the George W. Bush administration (which appointed him) in favor of Osama bin Laden’s former chauffer by finding that the military commission trying him must abide by the Geneva Convention. The Supreme Court went on to uphold the decision.

“If you walk into my court room, and you have the better legal arguments, you will win,” Kavanaugh said.

Several times throughout his response, Kavanaugh was interrupted by protesters who were removed from the room.

Tell your senators how they should vote on Judge Brett Kavanaugh’s nomination to the Supreme Court and share your thoughts below!

— Eric Revell & Josh Herman

(Photo Credit: D.C. Circuit Court of Appeals / Public Domain)

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