Northwest Arkansas Democrat-Gazette
Nominee grilled for second day
Kavanaugh defers on self-pardons
WASHINGTON — Judge Brett Kavanaugh, President Donald Trump’s nominee for the Supreme Court, on Wednesday dodged direct questions about whether the Constitution would allow Trump to use the powers of the presidency to thwart the Russia collusion and obstruction investigations that are swirling around his administration.
Testifying before the Senate Judiciary Committee in a grueling second day of hearings, Kavanaugh refused to say whether he believes Trump, as a sitting president, could be subpoenaed by Robert Mueller, the special counsel, to testify in the sprawling inquiry. Answering questions in public for the first time since his nomination, the judge also declined to say whether Trump could escape legal jeopardy by pardoning himself or his associates.
Kavanaugh also declined
to say he would disqualify himself from cases concerning Trump.
In a hearing that began in the morning and stretched well into the night, Kavanaugh sought to present himself as an evenhanded arbiter of the law rather than a partisan ideologue driven by a desire to carry out a Republican policy agenda. He parried questions, without any obvious blunders, on matters ranging from executive powers to abortion to gun rights.
Committee Chairman Charles Grassley, R-Iowa, asked Kavanaugh right away whether he would be independent from the president who chose him for the highly prestigious lifetime position.
Kavanaugh said, “The first thing that makes a good judge is independence, not being swayed by political or public pressure.”
He cited historic cases including the Brown v. Board of Education ruling that desegregated schools and the U.S. v. Nixon decision that compelled the president to turn over the Watergate tapes — a ruling that Kavanaugh had previously questioned.
“That takes some backbone,” he said of the justices who decided those cases.
But when asked more specific questions, including whether a president can be required to respond to a subpoena, Kavanaugh said, “I can’t give you an answer on that hypothetical question.”
The Supreme Court has never answered that question, and it is among potentially the most important since Trump could face a subpoena from Mueller.
Sen. Amy Klobuchar, D-Minn., asked whether a president could be criminally investigated or indicted. Kavanaugh again said he had never taken a position on those issues, though he did write in a 1998 article that impeachment may be the only way to hold a president accountable while in office.
“The Constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office,” he wrote in the Georgetown Law Review.
Kavanaugh’s most uncomfortable moment may have come near the end of nearly 12 hours in the witness chair, when Democratic Sen. Kamala Harris asked whether he had discussed the investigation with anyone at a law firm founded by Marc Kasowitz, a onetime lawyer for Trump.
Kavanaugh said he couldn’t recall any conversations, but asked for a list of lawyers at the firm. Harris said she thought Kavanaugh had a name in mind but did not want to reveal it. She promised to follow up, amid Republican complaints that she was being unfair.
ON ABORTION
On abortion, Kavanaugh said he believes that Roe v. Wade, the 1973 landmark Supreme Court case establishing a woman’s right to an abortion, was “settled as a precedent of the Supreme Court,” and as such, deserves respect from judges. But he did not say whether he believes Roe was correctly decided.
But then he noted a subsequent case, the 1992 case of Planned Parenthood v. Casey, which narrowed the scope of Roe at the same time it reaffirmed Roe as a precedent.
Casey, which gave states the authority to regulate abortion as long as those regulations do not pose an “undue burden” on the woman, is “precedent on precedent,” he said.
On that issue and others, Kavanaugh repeatedly sought to demonstrate empathy, telling senators that when it comes to understanding the real-life implications of abortion, “I don’t live in a bubble. I understand I live in the real world.”
He defended his dissent last year in Garza v. Hargan, in which he argued that the Trump administration should have been allowed to temporarily block a teenager in the country illegally from having an abortion while it sought to place her with a sponsor. He said he had followed Supreme Court precedents, even as he acknowledged that there was no directly applicable case.
“I did my level best in an emergency posture,” Kavanaugh said.
He said that took the teenager’s situation into account. “I tried to recognize the real world effects on her,” he said. “I said consider the circumstances. She’s a 17-year-old, by herself, in a foreign country. In a facility where she’s detained. And she has no one to talk to. And she’s pregnant. Now that is a difficult situation.”
Kavanaugh sought to portray himself as an advocate for women. He described sexual harassment allegations against Alex Kozinski, a former federal appellate judge for whom he once clerked, as “a gut punch for me,” and said he knew nothing of the behavior. And he told the committee he has made aggressive efforts to hire female clerks; 25 of his 48 clerks were women.
On gun rights, Kavanaugh told the committee the Second Amendment protects the right of Americans to own semi-automatic rifles because they are in “common use,” and not a “dangerous and unusual weapon” — a position he took in a much-publicized 2011 dissent, which he said was rooted in Supreme Court precedent. That prompted an outcry from Sen. Dianne Feinstein of California, the top Democrat on the judiciary panel.
“How do you reconcile what you’ve just said with the hundreds of school shootings using assault weapons that have taken place in recent history?” she asked.
“Senator, of course the violence in the schools is something we all detest,” the judge replied. But he added, “As a judge my job, as I saw it, was to follow the Second Amendment opinion of the Supreme Court.”
PROTEST DISRUPTIONS
Protesters continued to interrupt the hearing, adding to the tension after an opening day on Tuesday in which dozens of people were arrested for loudly disrupting the proceedings. There were more arrests Wednesday. One woman was led out of the hearing room shouting “sham president, sham justice”; another hollered, “You’re gaslighting the American people,” drowning out Kavanaugh as he calmly carried on.
Democratic senators angrily railed against a swiftly moving confirmation process for Kavanaugh, accusing Republicans on the committee of refusing to make public documents that they said call into question Kavanaugh’s honesty about his past congressional testimony and his record as a political operative and a lawyer for President George W. Bush’s administration.
Sen. Patrick J. Leahy, D-Vt., raised two Bush-era scandals with Kavanaugh, and he suggested that Bush White House emails in the Judiciary Committee’s possession may contradict testimony that the nominee made more than a decade ago — if only they could be released publicly.
One of the scandals was the disclosure in late 2003 and 2004 that a Republican Judiciary Committee staff member had infiltrated the Democrats’ confidential internal files about which of President George W. Bush’s judicial nominees to try to block and with what tactics. The other was the disclosure that after the Sept. 11, 2001, terrorist attacks, the Bush administration had secretly ordered the National Security Agency to intercept Americans’ phone calls and emails without obtaining the judicial warrants seemingly required by the Foreign Intelligence Surveillance Act.
At his appeals court confirmation hearing in 2006, Kavanaugh — who had worked as an associate White House counsel in the Bush administration — told senators that he did not know anything about the infiltration of Senate Democrats’ files on judicial nomination fights or about the no-warrants wiretapping program before they eventually became public.
But Leahy indicated that documents marked “committee confidential” — and kept secret from the public — provide evidence that Kavanaugh had contact with Manuel Miranda, then a Republican staff member on the Judiciary Committee, and had more involvement with the surveillance program than he had acknowledged.
“I am concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me,” Leahy said. “And that would contradict your prior testimony. It is also clear from public emails — and I’m refraining from going into nonpublic ones — that you had reason to believe materials were obtained inappropriately at the time.”
Kavanaugh insisted that everything he had testified to before was “100 percent accurate,” but indicated that he was not sure what Leahy was referring to.
Trump said he had been watching the hearings and thought the Democrats were “grasping at straws” in questioning the man he chose to replace retired Justice Anthony Kennedy. He said he “saw some incredible answers to very complex questions.”