Senate Democrats aggressively questioned Judge Brett Kavanaugh about his previous rulings on abortion, executive power, and gun rights on Wednesday, the second day of confirmation hearings marked by persistent interruptions from protesters and thinly veiled suggestions that the Supreme Court nominee was not being entirely forthcoming.
In a combative moment late in the day, Sen. Cory Booker, D-N.J., implied Kavanaugh had been open to racial profiling tactics, citing an email exchange between Kavanaugh and a colleague. But Booker did not provide Kavanaugh a copy of the emails to review while questioning him about it, prompting an objection from Utah Republican Sen. Mike Lee, who charged that it was inappropriate to "cross-examine" Kavanaugh about documents that he "can’t see."
Booker shot back that when Democrats received the emails, which he said were titled "racial profiling," they were marked "committee confidential," indicating that they contained sensitive information.
"The system is rigged," Booker said, arguing that the documents should not have been marked confidential because they did not contain personal or national security information. "The process is unfair, unnecessary, unjust, and unprecedented on this committee."
Lee ultimately agreed that the emails should be released, but that Kavanaugh should still be able to review them: "There’s no reason why this shouldn’t be something we can’t discuss in public — I don’t know why it was marked ‘committee confidential,’" he said.
In another particularly tense exchange in the evening, Hawaii Democratic Sen. Mazie Hirono pressed Kavanaugh at length about whether he was aware of inappropriate behavior by former 9th Circuit Judge Alex Kozinski when he clerked for Kozinski from 1991 to 1992. Kozinski abruptly retired last year after several woman who had worked as law clerks or colleagues accused him of sexual misconduct that included touching, inappropriate sexual comments and forced viewings of pornography in his chambers.
Hirono, who repeatedly has asked other judicial nominees whether they ever sexually harassed anyone, noted that Kavanaugh and Kozinski had kept in touch after his clerkship, with Kozinski recommending Kavanaugh during his 2006 confirmation hearings for his current job on the D.C. Circuit Court of Appeals.
"You saw nothing, you heard nothing, and you obviously said nothing," Hirono said, even as Kavanaugh denied being aware of any misconduct by Kozinski and said he would have reported it if he had known.
For the most part, the lengthy hearing focused on Kavanaugh’s writings and, in particular, key opinions he authored while serving on the nation’s most prestigious appellate court.
After Nebraska Republican Sen. Ben Sasse decried what he said was the improper mixing of partisan politics with legal discussion during the hearing, he reiterated his arguments from Tuesday that Congress often delegates excessive authority to mostly unaccountable executive branch agencies.
In response, Kavanaugh specifically touched on the Obama-era Consumer Financial Protection Bureau (CFPB), saying that even if the agency was a good policy idea, its creation was an improper "departure from historical practice" because it employed a single director, rather than a committee, who could only be removed by the president for cause.
Kavanaugh wrote an opinion for a three-judge panel striking down the CFPB’s structure as unconstitutional in 2016, but was later reversed in part by a 7-3 vote in an unusual en banc review by other justices on the D.C. Circuit Court of Appeals. The en banc review found the CFPB’s structure to be constitutional, but agreed with Kavanaugh that one of the agency’s major interpretive decisions had improperly violated due process requirements.
"A single person can make these enormous decisions?" Kavanaugh told Sasse on Wednesday, referring to the director of the CFPB. "From my perspective … that was an issue of concern."
The confirmation hearing has been chaotic at times, with Democrats trying to delay the proceedings as they complain they haven’t received enough records from Kavanaugh’s past work.
Senate Majority Leader Mitch McConnell found a way to allow Wednesday’s confirmation hearing to continue into the night, after a brief floor clash with Senate Democratic leader Chuck Schumer, D-N.Y. Schumer had objected to McConnell’s request for the committee to continue meeting after 2 p.m., despite plans to go late. But McConnell, using a parliamentary maneuver, adjourned the Senate for the day — because committees can meet as long as they like when the Senate is not in session.
California Democratic Sen. Dianne Feinstein, the committee’s ranking member and the first Democrat to question the nominee, began her questioning of Kavanaugh by referencing the outbursts from protesters: “I’m sorry about the circumstances, but we’ll get through it,” she said.
"I'm sorry about the circumstances, but we'll get through it."
Feinstein asked the nominee about his past case argument that Washington D.C.’s assault weapons ban was unconstitutional. He said he was following the precedent of the Supreme Court. Kavanaugh, who grew up near Washington, replied that he fully understands how violence plagues cities “but as a judge, my job as I saw it was to follow the Second Amendment opinion of the Supreme Court."
In his 2011 dissent in a follow-up to the landmark D.C. v. Heller case, Kavanaugh wrote that based on Supreme Court precedent, gun restrictions should be assessed principally by reviewing "text, history, and tradition," rather than a balancing analysis that mainly considers dangers to the public and the government’s interest in regulation.
Kavanaugh wrote that there is "no meaningful or persuasive constitutional distinction" between semiautomatic rifles and semiautomatic handguns, rejecting the city’s attempt to apply regulations to rifles, other than automatics, that could not constitutionally apply to handguns.
Feinstein also pressed Kavanaugh over the Roe v. Wade court decision regarding abortion.
“Well, as a general proposition, I understand the importance of the precedent set forth in Roe v. Wade,” he said.
Later in the day, Sen. Richard Blumenthal, D-Conn., dismissed Kavanaugh’s statements on Roe, saying that describing the case as important "existing Supreme Court precedent" was akin to callously introducing a woman as "my current wife," drawing a slight grin from Kavanaugh.
The nominee then stressed that "precedent on precedent" has since supported abortion rights, noting that the 1992 Supreme Court case Planned Parenthood v. Casey explicitly upheld Roe. But when pointedly asked by Blumenthal to vow to never overturn Roe, Kavanaugh reiterated that it would be inappropriate for nominees to the Supreme Court to discuss hypothetical cases during their confirmation hearings — a view echoed by each sitting Supreme Court justice.
It was a recurring theme for Kavanaugh on the day, as he emphasized that he would remain an impartial jurist despite his personal views, both before and after the confirmation hearings. To argue that he can be trusted to be fair to all litigants, Kavanaugh cited his decision in the 2012 case Hamdan v. United States, in which he overturned the conviction of Osama bin Laden’s personal driver, Salim Hamdan. The conviction, Kavanaugh said, violated the Constitution’s Ex Post Facto provision by punishing a defendant under a system of military tribunals enacted after his alleged crimes.
“You’ll never have a nominee who’s ruled for a more unpopular defendant," Kavanaugh told senators Wednesday, saying that while Hamdan was a widely reviled Guantanamo Bay detainee, he was still entitled to some constitutional protections.
Feinstein also asked Kavanaugh about past comments regarding investigations involving a president, a key issue amid the Russia probe that has implicated numerous Trump associates. Kavanaugh said he’s never taken a position on the constitutionality of whether a president should be investigated while in office. He claimed those past comments were about the “balance of a president fighting a war, leading a war, and a president subject to say ordinary civil lawsuits,” like former President Bill Clinton faced.
In response to later questions from Sasse, Kavanaugh emphasized that "no one’s above the law," saying that while any criminal prosecution of a sitting president may face "timing" issues, there is no absolute constitutional prohibition against eventually pursuing such a prosecution.
Sen. Patrick Leahy, D-Vt., pressed Kavanaugh about what he knew about the Bush administration’s warrantless surveillance program. Leahy also asked Kavanaugh if a president has a right to pardon himself, a power President Trump has said he believes he has.
“The question of self-pardons is something I have never analyzed,” Kavanaugh replied, calling it a “hypothetical question that I can’t begin to answer in this context as a sitting judge and as a nominee to the Supreme Court.”
Outbursts from protesters have been a recurring feature since the hearings began. Moments after Senate Judiciary Committee Chairman Chuck Grassley opened the hearing Wednesday, shouting could be heard from the back of the room: “Sham president, sham justice!” Ironically, at one point, protesters shouted as Kavanaugh discussed how he tried to be respectful in court. "I’ve tried to be a very collegial judge, I’ve tried to be civil," he said.
However, protesters seemed to thin out significantly as the hearings wound on into the evening, with few interruptions later in the day. Capitol Police officials in the hearing room quickly removed each demonstrator, with several arrests reported.
Kavanaugh served for more than a decade on the D.C. Circuit Court of Appeals and, before that, for five years as a lawyer in the White House Counsel’s office in the George W. Bush administration. He also worked for independent counsel Ken Starr for three years during the probe that led to the impeachment of former President Bill Clinton.
Kavanaugh’s elevation from the D.C. Circuit Court of Appeals to the Supreme Court would mark a generational rightward shift on the Supreme Court, raising the stakes beyond those of last year’s nomination of Neil Gorsuch.
The judge’s nomination, though, will ultimately succeed or fail depending on a handful of swing-vote senators, including vulnerable red-state Democrats and moderate pro-choice Republicans who have all said that they would withhold judgment on the nominee.
Republicans command a narrow 51-49 Senate majority. Party leaders have said they hope to have Kavanaugh confirmed by a floor vote by early October, when the next Supreme Court term begins.
Fox News’ Kaitlyn Schallhorn, Judson Berger and Bill Mears contributed to this report.
Published at Thu, 06 Sep 2018 00:00:00 +0000