Kavanaugh debates, dodges, demurs
Supreme Court nominee stresses judicial independence at hearing
In a day of testy exchanges with California’s U.S. senators and other Democrats during his high-stakes confirmation hearing Wednesday, Supreme Court nominee
Brett Kavanaugh side-stepped a barrage of politically charged questions, refusing to discuss his views on presidential powers, abortion rights and other hot-button issues.
In more than 12 hours of grueling questioning, Kavanaugh appeared to avoid damaging sound bites. He de- clined to say whether he believed the president could be forced to respond to a subpoena, whether the president could pardon himself, whether the president could be charged with
a crime, whether he believes the Roe v. Wade decision was correctly decided, and whether he would recuse himself from cases about President Trump’s legal liability.
Kavanaugh, a federal appeals court judge, cited the example of past nominees in refusing to discuss his personal views.
One of the more dramatic moments came late in the day when California Sen. Kamala Harris asked Kavanaugh whether he had discussed the special counsel investigation into collusion between Russia and President Trump’s campaign with anyone working at the law firm of Trump’s personal lawyer, Marc Kasowitz.
Kavanaugh, briefly speechless, said he didn’t know everyone who worked at the firm. “I would like to know the person you’re thinking of,” Kavanaugh told Harris.
“I think you’re thinking of someone and you don’t want to tell us,” Harris responded.
A Democratic aide said later that Senate Democrats have reason to believe a conversation between Kavanaugh and someone at Kasowitz’s firm happened, and they are pursuing it. But Harris didn’t reveal anything about this during her questioning, moving on without telling Kavanaugh whether she had a specific person in mind.
In pushing Kavanaugh on his views on the Roe v. Wade, Harris also asked Kavanaugh if he could “think of any laws that give the government the power to make decisions about the male body.”
“I’m not thinking of any right now, senator,” Kavanaugh replied.
Harris’ questioning capped a long day in the hot seat for Kavanaugh in which he presented himself as a straightforward judge dedicated to the Constitution. Still, legal observers believe he could shift the Court to the right for a generation if he’s confirmed to replace swing vote Anthony Kennedy.
The hearing was peppered with interruptions from protesters in the gallery demanding senators oppose his nomination. Capitol police said 73 people had been charged with unlawful demonstration activities.
Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee and the first Democrat to question Kavanaugh, pressed the nominee on questions of presidential powers.
Kavanaugh worked on the independent counsel investigation of former President Bill Clinton in the ’90s, when he advocated for aggressive and sexually graphic questioning of Clinton about his affair with a White House intern. But years later, after working in the George W. Bush White House, Kavanaugh had a change of heart, writing in a law review article that presidents should be protected from civil lawsuits or criminal investigations while they’re in office.
During the hearing, Feinstein urged him to explain why his opinion had changed.
“What changed was September 11,” Kavanaugh said, explaining how seeing Bush’s response in the days following the attack convinced him that presidents shouldn’t have to deal with distractions like lawsuits or prosecutions against them.
He also said that the stance he took in the law review article represented “ideas for Congress to consider,” not “my constitutional views.”
But when Feinstein asked him if a sitting president could be required to respond to a subpoena, Kavanaugh responded that “I can’t give you an answer on that hypothetical question,” citing the typical practice of Supreme Court nominees not to comment on legal issues that could come up in cases before them.
Kavanaugh also declined to answer a question from Sen. Patrick Leahy, DVermont, about whether Trump is correct that he has the right to pardon himself.
“I’m not going to answer,” Kavanaugh said.
“I hope for the sake of the country that remains a hypothetical question,” Leahy responded.
And he refused to commit to recuse himself from cases involving potential criminal or civil liability for Trump.
In another exchange, Leahy suggested that Kavanaugh may have misled senators during his 2006 hearing for a seat on the D.C. Circuit Court of Appeals. Leahy implied there’s evidence that a Republican staffer, Manuel Miranda, stole Democratic documents concerning judicial nominations and then gave them to Kavanaugh.
“I’m concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me, and that would contradict your prior testimony,” Leahy said. But he didn’t present any evidence backing up his allegation.
Kavanaugh said he had no memory of meetings with Miranda and that he had been “100 percent accurate” in his past confirmation hearing.
He told multiple senators he had no knowledge of sexual harassment by federal appeals court Judge Alex Kozinski, who resigned earlier this year after several accusations by women who worked with him. Kavanaugh clerked for Kozinski and knew him socially.
On another crucial topic, Kavanaugh declined to say whether he believed the Roe v. Wade decision protecting abortion rights was correctly decided. But he told Feinstein that it was an “important precedent of the Supreme Court that’s been reaffirmed many times.”
She reminded him that before abortion was legal, “a lot of women died in that period,” saying, “I don’t want to go back to those death tolls.”
“I understand your point of view on that and I understand how passionately and deeply people feel about the issue,” Kavanaugh told Feinstein. “I don’t live in a bubble.”
While it appears likely Republicans have the votes to confirm Kavanaugh, Democrats are holding on to hope of swaying at least two pro-choice GOP senators.
Republicans on the committee repeatedly praised Kavanaugh, calling him a uniquely qualified jurist. Sen. Ted Cruz, R-Texas, noted that there was a high rate of agreement on the D.C. Circuit between Kavanaugh and his colleague Judge Merrick Garland, who former President Barack Obama nominated to the Supreme Court only to be blocked by Republican opposition.
Meanwhile, Democrats continue to argue that the proceedings on Kavanaugh’s nomination have been tarred by a lack of transparency, with tens of thousands of pages of documents from Kavanaugh’s career in the White House blocked from public release.