Supreme Court nominee Brett Kavanaugh's confirmation hearing boiled
over into a series of tense exchanges late in the evening Wednesday, as
high-profile Democrats lined up to hammer the appellate judge with
thinly veiled accusations that he was hiding ties to President Trump's
inner circle and harbored sympathies for racist policies.
In an especially combative moment late in the day, Sen.
Kamala Harris, D-Calif., pointedly asked Kavanaugh whether he ever had
discussed Special Counsel Robert Mueller or his Russia probe with anyone
at Kasowitz Benson Torres, the law firm founded by Marc Kasowitz, a
former personal attorney to President Trump.
"Be sure about your answer," Harris warned. "I'm asking you a very direct question. Yes or no?"
"I'm not sure I know everyone who works at that law firm," Kavanaugh said. "I'm not remembering, but I'm happy to be refreshed."
"How can you not remember whether or not you had a
conversation about Robert Mueller or his investigation with anyone at
that law firm?" Harris asked, visibly exasperated. "This investigation
has only been going on for so long, sir, so please answer the question."
"I'm just trying to think -- do I know anyone who works
at that firm?" Kavanaugh eventually replied. "I'd like to know the
person you're thinking of."
"I think you're thinking of someone and you don't want
to tell us," Harris shot back, sending the room into a few seconds of
near-total silence.
Utah Republican Sen. Mike Lee then interjected briefly
to defend Kavanaugh, saying that "this town is full of law firms" and
that they "are constanly metastaizing, they break off, they form new
firms -- they're like rabbits. There's no possible way we can expect
this witness to know who populates an entire firm."
A barrage of protesters erupted in a chant of "Answer
the question" before being led out by police as Lee spoke. In all, 73
people were arrested and charged for unlawful demonstrations within
Senate buildings on Wednesday, including 66 people who were removed from
the hearing room during the day, according to Capitol Police officials.
In another dramatic exchange, Sen. Cory Booker, D-N.J.,
implied Kavanaugh had been open to racial profiling tactics, citing an
email exchange between Kavanaugh and a colleague. However, Booker did
not provide Kavanaugh a copy of the emails to review while questioning
him about it, prompting another objection from Lee, who charged that it
was inappropriate to "cross-examine" Kavanaugh about documents that he
"can't see."
Booker countered 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.
Also Wednesday 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.
At one point, Kavanaugh was asked by Louisiana
Republican Sen. John Kennedy about the constitutionality of individual
federal judges issuing nationwide injunctions against presidential
action -- a phenomenon that has attracted scrutiny after district court
judges unilaterally brought temporary halts to President Trump's travel
ban and other initiatives. Kavanaugh demurred, saying he could not
discuss potential pending issues before the Supreme Court.
"I'm sorry about the circumstances, but we'll get through it."
- Sen. Dianne Feinstein, D-Calif.
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.
WATCH: SASSE UNLOADS ON CONGRESS DURING CONFIRMATION HEARING
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.
KAVANAUGH VOWS TO 'KEEP AN OPEN MIND IN EVERY CASE'
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.
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, but acknowledged that gun violence posed significant policy
concerns.
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.
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.
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.
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.
