Northwest Arkansas Democrat-Gazette
Nominee questioned on abortion responses
WASHINGTON — Senate Democrats mounted a last attempt Thursday to paint Supreme Court nominee Brett Kavanaugh as an opponent of abortion rights and a likely defender of President Donald Trump if he makes it to the high court.
But their chances of blocking Trump’s nominee seemed to fade away by the end of a second marathon day of testimony in his confirmation hearing.
Questioning of the 53-year-old appellate judge wound down without him revealing much about his judicial stances or making any serious mistakes that might jeopardize his confirmation.
The hearing pivoted during the day to Roe v. Wade, the high court’s landmark abortion case.
A newly disclosed email suggested that he once indicated that the abortion case was not settled law, though Kavanaugh denied in the hearing that he had been expressing his personal views on the issue.
The tone in the email from 2003 contrasted with his responses to questions Wednesday when he stressed how difficult it is to overturn precedents like Roe. In the email, Kavanaugh was reviewing a potential op-ed article in support of two judicial nominees while he was working at the White House during George W. Bush’s presidency.
The document had been held by the committee as confidential, but was made public Thursday.
“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so,” Kavanaugh wrote, referring to justices at the time, in an email to a Republican Senate aide. The document was partially redacted.
Kavanaugh defended the statement he made in the email and said “the broader point was simply that it was overstating something about legal scholars.”
“I’m always concerned about accuracy, and I thought it was not an accurate description of all legal scholars,” he said, adding later that Roe v. Wade is “an important precedent. It has been reaffirmed many times.”
Democrats also hammered at Kavanaugh’s ability to separate himself from Trump and special counsel Robert Mueller’s investigation of Russian meddling in the 2016 election. Throughout his testimony, Kavanaugh has repeatedly insisted that he fully embraces the importance of judicial independence.
Democratic Sen. Dick Durbin of Illinois put the focus on Trump, who Durbin said, “has shown contempt for the federal judiciary and has shown disrespect for the rule of law over and over again.” “It’s in the context of the Trump presidency that we ask you these questions,” Durbin said.
Kavanaugh refused to answer questions about Trump or to commit to stepping aside from any case about the Russia investigation that might go before the Supreme Court. When Sen. Richard Blumenthal of Connecticut invited him to denounce Trump’s criticism of federal judges, the nominee demurred.
“The way we stand up is by deciding cases and controversies independently without fear or favor,” Kavanaugh said.
Earlier, he said his 12-year record as an appellate judge shows that he has not been afraid to invalidate executive branch actions. Kavanaugh said he has made clear that a court order “that requires a president to do something or prohibits a president from doing something … is the final word in our system.”
Late in Wednesday’s proceedings, the questioning reached Sen. Kamala Harris, D-Calif., and she started with tense questioning that centered on whether Kavanaugh had ever discussed the Russia investigation by the special counsel with a lawyer or lawyers from the firm of Trump’s longtime personal lawyer, Marc Kasowitz.
Kavanaugh appeared somewhat baffled, but he would not offer a blanket “no” because he said he didn’t know the names of every lawyer who worked for the firm, and he had discussed the Mueller investigation with lawyers and judges.
“I think you’re thinking of someone, and you don’t want to tell us,” Harris said without elaboration.
Sen. Orrin Hatch, R-Utah, gave Kavanaugh an opportunity Thursday to revisit Harris’ line of questioning. Kavanaugh responded by acknowledging that he doesn’t know everyone who works at the firm, but said, “I don’t recall any conversations of that kind.” “I haven’t had any inappropriate conversations about that investigation with anyone,” Kavanaugh said. “I’ve never given anyone any winks, hints, forecasts, previews, nothing, about my view as a judge, or how I would rule as a judge on that or anything related to that.”
A spokesman for Kasowitz Benson Torres said in a statement Thursday that “there have been no discussions regarding Robert Mueller’s investigation between Judge Kavanaugh and anyone at our firm.”
DISCLOSED DOCUMENTS
Much of the debate among senators has focused more on the disclosure of documents than on Kavanaugh’s record.
On Thursday, Democratic Sen. Cory Booker of New Jersey — a potential presidential candidate in 2020 — said he was willing to risk fallout over releasing confidential documents about Kavanaugh’s views on race. Republican John Cornyn of Texas warned him that senators could be expelled for violating confidentially rules. Democrats and Booker responded, “Bring it on.”
“This is about the closest I’ll ever come in my life to an ‘I am Spartacus’ moment,” Booker declared.
But after the drama subsided, Sen. Charles Grassley, R-Iowa, the chairman of the Senate Judiciary Committee, said all of those documents were cleared for release overnight. “We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly,” Bill Burck, the GOP attorney who serves as presidential records lawyer for Bush, said by email.
Booker had sought the release late Wednesday, after questioning Kavanaugh on race and drawing rebuke from his colleagues for disclosing the confidential documents. They were made available after 3 a.m. Thursday.
Booker’s spokesman said that only by raising the issue publicly was the senator able to “shame the committee into agreeing” to release the pages to the public.
The document battle stemmed from Kavanaugh’s unusually long paper trail after his years in the Bush White House. The panel’s process resulted in hundreds of thousands of pages of Kavanaugh’s documents being withheld as confidential or kept from release under presidential privilege by the Trump White House. Grassley, who released more documents Thursday, stood by his handling of the matter. “My process was fair,” Grassley declared.
On Wednesday, Sen. Patrick Leahy, D-Vt. asked Kavanaugh whether he had meetings with Manuel Miranda, a former Senate Republican aide who was caught stealing files from the computers of Senate Judiciary Committee Democrats, including Leahy.
Kavanaugh denied ever knowingly receiving stolen material when he was a White House aide tasked with getting President George W. Bush’s judicial nominees confirmed.
Questioning Kavanaugh a second time Thursday, Leahy described and put up on posters several emails about his interactions with Miranda, indicating that he had received permission from the committee chairman to disclose them. They included a March 2003 email from Miranda to Kavanaugh that included several pages of Democratic talking points, marked “not for distribution,” and another to Kavanaugh from a Republican Senate staff member whose subject line “spying” and which referred to “a mole for us on the left.”
Kavanaugh reiterated that he had no knowledge that Miranda had infiltrated Democratic files, saying he likely assumed that the Republican staff was getting information from friends who were Democratic staff members and nothing had raised red flags at the time. “I was born at night but not last night,” Leahy said. “If I had something that somebody said, we have stolen this or don’t tell anybody we have this, I think it would raise some red flags.”
Separately, Sen. Mazie Hirono, D-Hawaii, on Thursday published a “committee confidential” email about policies for Native Hawaiians that could be of interest not only to Hawaii’s two Democratic senators but to Sen. Lisa Murkowski, R-Alaska, a key swing vote who guards the interests of Native Alaskans.
In that email, Kavanaugh questions Native Hawaiians as a protected group like American Indian tribes. He wrote that prepared testimony “needs to make clear that any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution.”
Kavanaugh’s two daughters returned to the Senate Judiciary Committee hearing room for the final hours of testimony Thursday, accompanied by teammates on Catholic school basketball teams their father has coached. Protesters have repeatedly tried to interrupt the hearing, which has carried strong political overtones ahead of the November congressional elections.
Senate Majority Leader Mitch McConnell dismissed the protesters’ “unhinged antics” as powerless to stop Trump’s choice. “There’s no hecklers’ veto,” he said.
Republicans hope to confirm Kavanaugh in time for the first day of the new Supreme Court term, Oct. 1.