After beginning with a bizarre series of document releases that
prompted one top Democrat to compare himself to Thracian gladiator
Spartacus, the third day of Supreme Court nominee Brett Kavanaugh's
confirmation hearings centered on Special Counsel Robert Mueller's
investigation -- and a string of emails from earlier in the nominee's
career, more than a decade ago.
As Democrats questioned Kavanaugh, Sen. Cory Booker,
D-N.J., on Thursday afternoon released a new batch of documents that
appeared to be labeled "committee confidential," meaning they were
cleared to be viewed only by the Senate Judiciary Committee, not the
public.
Booker tweeted that the entire nominating process was a
"sham," and claimed he was running the risk of being expelled from the
Senate for breaking its rules by posting the Bush-era documents, which
included Kavanaugh's thoughts on racial profiling in the wake of the
September 11 terror attacks and his assessment of the Supreme Court's
views on Roe v. Wade.
A Judiciary Committee spokesperson confirmed to Fox
News late Thursday that at least some of the emails Booker had released
were still "committee confidential" when he published them hours
earlier, suggesting Booker had in fact violated Senate rules, although
Republicans had said earlier in the day that they had cleared many of
the documents for public release on Wednesday night.
Also on Thursday, Sen. Kamala Harris, D-Calif. --
another potential 2020 presidential contender -- circled back to a
combative, mysterious moment during Wednesday's hearing, when she
suggested Kavanaugh was hiding information intentionally.
Harris had asked Kavanaugh whether he ever had
discussed Mueller or his Russia probe with anyone at Kasowitz Benson
Torres, the nearly 300-member law firm founded by Marc Kasowitz, a
former personal attorney to President Trump. Kavanaugh demurred at the
time, saying, "I'm not sure I know everyone who works at that law firm."
On Thursday night, Harris offered some more information about the foundation for her line of questioning.
"I received reliable information that you had a
conversation about the special counsel or his investigation with the law
firm that has represented President Trump," Harris began. "I will ask
you again and for the last time -- yes or no, have you ever been part of
a conversation with lawyers at the firm Kasowitz Benson Torres about
Special Counsel Mueller or his investigation?"
"The answer is no," Kavanaugh eventually replied.
Harris moved on quickly, peppering Kavanaugh with an aggressive series
of rapid-fire questions on everything from gay marriage rights to
separations of illegal immigrant families at the border.
Sen. Richard Blumenthal, D-Conn., had pressed Kavanaugh on the Kasowitz issue earlier.
"Your answer was vague," Blumenthal charged. "Have you
discussed the special counsel investigation with anyone outside the
group of judges on the D.C. Circuit [Court of Appeals]?"
"I've had no inappropriate discussions with anyone,"
Kavanaugh said. "If you're walking around in America, it's coming up,
senator, so people discuss it."
WATCH: KAMALA HARRIS WARNS KAVANAUGH TO 'BE SURE ABOUT YOUR ANSWER' ON MUELLER DISCUSSIONS
Blumenthal's questioning echoed Harris' tone on
Wednesday, when she briefly silenced the hearing room by flatly telling
Kavanaugh, "I think you're thinking of someone, and you don't want to
tell us."
The moment prompted another outburst from
demonstrators. In total, 69 protesters were charged with unlawfully
demonstrating in the Senate complex on Thursday, including 37 in the
hearing room, according to Capitol Police officials. On Wednesday, 73
people were arrested and charged, including 66 from the hearing room.
For the most part, the day's questions focused on
documents opaquely referenced by Democrats on Wednesday that Booker and
other senators released Thursday.
Democrats pointed, for example, to a 2003 email that
had been marked "committee confidential" in which Kavanaugh wrote: "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, then a lawyer in the George W. Bush
administration, was being asked for his opinion on a draft op-ed to be
bylined by pro-life women. He repeatedly told Democrats that the email
reflected only his opinion on the views of "legal scholars," and were
not necessarily a fair reflection of his own opinions.
Crucially, that opinion seemed to be shared Thursday by
Maine pro-choice Republican Susan Collins, considered a key swing vote
in Kavanaugh's potential confirmation.
"I am told that he was editing an op-ed for clarity and
was merely stating a fact that three judges on the court were
anti-Roe,”
Collins said.
“If that’s the case then, and it’s not expressing his view, then I’m
not sure what the point is.” Collins later told Politico she would
review the matter again over the weekend.
Democrats also highlighted a 2001 email referenced on
Wednesday in which Kavanaugh seemed dismissive of Department of
Transportation regulations that gave preference to minority-owned
companies, even where they did not offer the most competitive bid on a
particular contract.
"The fundamental problem in this case is that these DOT
regulations use a lot of legalisms and disguises to mask what in
reality is a naked racial set-aside," Kavanaugh wrote, as part of his
analysis that conservative members of the Supreme Court would “realize
as much in short order and rule accordingly.” Kavanaugh on Thursday
defended the email as an assessment of his views on the Supreme Court's
probable take on the matter.
Earlier Thursday, Sen. Booker, D-N.J., claimed he was taking a dramatic risk by publicizing emails from 2002 that he had said on Wednesday indicated that Kavanaugh was open to racial profiling.
“I am going to release the email about racial profiling
and I understand that the penalty comes with potential ousting from the
Senate,” Booker announced, adding later: “This is about the closest
I'll probably ever have in my life to an, ‘I am Spartacus’ moment.”
But in a strange twist, Republicans on the Judiciary
Committee said that the George W. Bush library and the Justice
Department had cleared several of the documents for public release the
previous night, suggesting that Booker, in fact, was not risking
anything by going public with the documents. Utah Republican Sen. Mike
Lee had hinted Wednesday that the documents would come out, saying there
was "no reason" to keep them private.
However, on Thursday afternoon, Booker continued
publicly releasing documents that he said had been marked "committee
confidential," posting on Twitter, "We will continue to release more
committee confidential documents to draw attention to this sham
process."
Late Thursday, a Senate Judiciary Committee
spokesperson confirmed to Fox News that at least some of the documents
Booker released were still "committee confidential" when he released
them.
One of the 12-page email chains that Booker ultimately provided showed
that, in 2002, Kavanaugh wrote that he "generally" favored racially
neutral security measures in the long term. But he acknowledged that
administration officials would need to "grapple" with the viability of a
potential interim solution that included race as a consideration,
suggesting that until race-neutral policies could be effectively
implemented, national security concerns in the aftermath of the
September 11 attacks could demand another approach.
Another email chain released by Booker later Thursday showed Kavanaugh admitting to "venting" in 2001 about reported changes to a bill providing funding both religious and non-religious drug and alcohol treatment centers.
"A religious drug treatment center should be no better
-- but also no worse -- in the eyes of the government than a
non-religious drug treatment center," Kavanaugh wrote, by way of arguing
that the Constitution requires that faith-based organizations should
not receive preferential treatment, but should still receive a "neutral"
and fair shake.
Despite the tense atmosphere, there were pointed
moments of levity. At one point, at the insistence of Sen. Jeff Flake,
R-Ariz., Kavanaugh introduced several girls on a softball team he has
coached through the years, rattling off their names and grade levels one
by one. When he finished, the hearing room, which on dozens of
occasions this week played host to loud and hostile anti-Kavanaugh
protesters, broke out into applause.
And even though Texas Republican Sen. John Cornyn
sparred with Sen. Booker earlier in the day as he appeared to flout
Senate rules, the two shared laughs about book recommendations as the
hearing concluded at the end of the evening.
Kavanaugh and members of the Judiciary Committee then
headed into a private executive session. On Friday at 9:30 a.m.,
hearings will continue with a series of outside witnesses, including
members of the nonpartisan American Bar Association, which recommended
Kavanaugh as highly qualified.