Supreme Court nominee Brett Kavanaugh sparred with the Senate Judiciary Committee for more than 12 hours on Wednesday, during which he was grilled by the panel’s 21 members about a range of issues including his views on executive power, abortion, healthcare, and the Second Amendment.
Kavanaugh appeared before the panel for the first round of questioning in his four-day confirmation hearing, which kicked off Tuesday and will run through Friday.
In his most substantive introduction to the American people to date, Kavanaugh frequently went head-to-head with Democratic senators, but refused to say how he may rule on legal questions involving President Trump and dodged inquiries seeking to pin down his views on landmark abortion decision Roe v. Wade.
[Kavanaugh: Roe has been ‘reaffirmed many times’]
Trump nominated Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to the Supreme Court in July and, if confirmed, he will replace Justice Anthony Kennedy on the high court.
Throughout the hearing’s first two days, dozens of protesters interrupted the proceeding to voice their opposition to Kavanaugh’s nomination. On Monday, 70 people were arrested by U.S. Capitol Police, and more than a dozen were removed from the hearing room Tuesday.
During the marathon questioning, Senate Democrats pressed Kavanaugh about his views on executive power, an issue that has come to the forefront of the fight over his nomination given special counsel Robert Mueller’s ongoing investigation into Russia’s interference in the 2016 election.
Kavanaugh fielded questions from numerous senators regarding his views on the presidency, including whether the president is required to comply with a subpoena and whether the president can pardon himself.
In both instances, Kavanaugh declined to share his view, citing answers from prior Supreme Court nominees.
“Each of the eight justices currently sitting on the Supreme Court, when they were sitting in my seat, declined to decide potential hypothetical cases,” he said.
During an exchange with Sen. Pat Leahy, D-Vt., the senator asked Kavanaugh whether the president had the right to pardon himself.
In response to Leahy’s question, Kavanaugh said a self-pardon is not something he had analyzed.
“It’s a hypothetical question that I can’t begin to answer in this context as a sitting judge and as a nominee,” he said.
Kavanaugh also declined to address whether the president has the ability to pardon a person in exchange for the promise that individual wouldn’t testify against him.
“I’m not going to answer hypothetical questions of that sort,” he said. “There’s a good reason for it.”
Kavanaugh has come under scrutiny for a 2009 article in the Minnesota Law Review, in which he suggested Congress pass a statute allowing for the president to defer criminal investigations and civil lawsuits while in office.
[Brett Kavanaugh: ‘I am a pro-law judge’]
The article was written after Kavanaugh worked with independent counsel Kenneth Starr during the investigation involving President Bill Clinton.
Kavanaugh was questioned about what led him to change his thinking on independent counsel investigations over the years, and the Supreme Court hopeful told the committee it was the terror attacks on Sept. 11, 2001, that altered his thinking.
“After Sept. 11, I thought very deeply about the presidency, and I thought very deeply about the independent counsel experience, and I thought very deeply about how those things interacted, and I thought very deeply about seeing President Bush,” Kavanaugh, who worked in the White House at the time of the attacks, said.
The Minnesota Law Review article authored by Kavanaugh has led some Senate Democrats to raise concerns about Kavanaugh’s views on investigations involving sitting presidents.
But Kavanaugh told the Senate Judiciary Committee that in his article, he was making suggestions for Congress rather than offering his constitutional views on the issue.
He reiterated that he has not taken a position on the indictment or investigation of a sitting president and vowed to have a “completely open mind” on the constitutional question if it were to come before the Supreme Court.
“If a case came up where someone was trying to say this is a constitutional principle, I would have a complete open mind on that because I’ve never taken a position,” he said.
While Kavanaugh did not answer questions involving whether a president is compelled to comply with a subpoena, he did emphasize his stance on the importance of an independent judiciary.
“No one is above the law,” Kavanaugh told the Senate judiciary Committee.
He further stressed that the courts are not “supposed to be influenced by political pressure” from either the executive or Congress.
“I think the first thing that makes a good judge is independence, not being swayed by political or public pressure,” Kavanaugh said. “That takes some backbone, takes some judicial fortitude. The great moments in American judicial history, the judges had backbone and independence.”
Senate Democrats continued their ongoing battle with Republicans over a trove of documents from Kavanaugh’s three-year tenure as staff secretary for President George W. Bush, which were not made public.
“Judge Kavanaugh, this is your field, judicial nominations, this is your nomination. You are now embarking on this journey in this committee, denying us access to documents which were routinely provided for other judicial nominees. You had to have known that was taking place,” Sen. Dick Durbin, D-Ill., said. “If you said at this moment, ‘I don’t want to have a cloud over this nomination. I am prepared to suggest to the committee and ask the committee, humbly, please withhold further hearings until you disclose everything.’ Why won’t you do that?”
Kavanaugh declined to postpone the hearing.
Sen. Cory Booker, D-N.J., was among those criticizing the process for releasing documents, which has led to a trove of records being kept from the public’s view, calling it “unfair,” “unnecessary,” “unjust,” and “unprecedented.”
“This system is rigged,” he said.
Prior to serving on the federal bench and in the Bush White House, Kavanaugh clerked for Justice Anthony Kennedy, who he would replace on the Supreme Court if confirmed, and Judge Alex Kozinski, a former judge on the U.S. Court of Appeals for the 9th Circuit.
Since his nomination, questions have swirled about Kavanaugh’s relationship with Kozinski, who was accused of sexual misconduct by numerous women and retired from the federal bench in December.
Sen. Orrin Hatch, R-Utah, questioned Kavanaugh about whether he was aware of Kozinski’s behavior, of which Kavanaugh said he knew “nothing” about.
“When they became public, I think it was in December, it was a gut punch. It was a gut punch for me, it was a gut punch for the judiciary, and I was shocked and disappointed, angry, a swirl of emotions,” he said. “No woman should be subjected to sexual harassment in the workplace.”
Many Democrats not only questioned Kavanaugh’s views on executive power during his first round of questioning, but also sounded the alarm about the future of Roe v. Wade and the Affordable Care Act.
Opponents of Kavanaugh’s nomination warn that if he is confirmed to the Supreme Court, the five conservative justices could vote to overturn Roe or chip away at abortion rights.
Kavanaugh said he was not asked before he was selected as Trump’s nominee how he would rule on Roe, and called Planned Parenthood v. Casey, the 1992 Supreme Court decision that reaffirmed Roe, “precedent on precedent.”
“I will tell you what my view now is: It is an important precedent of the Supreme Court that has been reaffirmed many times,” he told the Judiciary Committee.
Kavanaugh also expressed to senators that he understands the stakes surrounding the issue of abortion rights.
“I understand your point of view and I understand how passionate and how deeply people feel about this issue,” he said. “I understand the importance of this issue. … I don’t live in a bubble. I live in the real world.”
Kavanaugh has not ruled directly on the issue of abortion, but he did defend his position in a case involving a migrant teenager in government custody who wanted to have an abortion.
The Supreme Court hopeful wrote in his dissent the majority’s opinion was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
When questioned about his opinion, Kavanaugh said he relied on Supreme Court precedent involving states’ ability to enact abortion regulations.
“I also made clear that the government could not make the immigration sponsor as a ruse to try to delay her abortion past the time when it was safe,” he told the committee.
Kavanaugh was confronted during his first round with questions regarding possible legal troubles involving Trump, including those that may arise from Mueller’s probe.
Sen. Richard Blumenthal, D-Conn., pushed Kavanaugh to commit to recusing himself from cases before the Supreme Court involving the president, though Kavanaugh declined to do so.
“To be consistent with the principle of the independence of the judiciary, I should not and may not make a commitment about how I would handle a particular case,” he said.
Blumenthal told Kavanaugh he was “troubled” by Kavanaugh’s answer, noting that several issues involving Trump could wind up before the Supreme Court next term.
“We’re in uncharted territory,” the Connecticut senator said. “It is unprecedented for a Supreme Court nominee to be named by a president who is an unindicted co-conspirator.”
Though Kavanaugh shied away from sharing how he would would handle specific cases, or share his views on Roe, he heralded two prior Supreme Court decisions: Brown v. Board of Education and U.S. v. Nixon, which forced President Richard Nixon to turn over the Watergate tapes.
Kavanaugh called Brown the “single greatest moment in Supreme Court history,” and said Nixon ranks among the top four.
Toward the end of the hearing, Kavanaugh faced questions from Booker on affirmative action, racial profiling, and voting rights.
“It seems that you are OK with using race to single out some Americans for extra security measures because they look different, but you’re not OK with using race to help promote diversity and equal opportunity and correct for past racial, documented racial inequality,” Booker said.
Kavanaugh told Booker that he recognized the “long march to racial equality is not over,” and touted his hiring of African-American law clerks in an effort to diversify the clerks hired at the Supreme Court.
“If you look at the sweep of it, I hope it gives you confidence that I at least have done my best to try to understand the real world and tried through my actual decisions to understand the real world and apply the law fairly,” Kavanaugh said.
As the second day of the confirmation hearing neared its conclusion, Kavanaugh was asked by Sen. Kamala Harris, D-Calif., about whether he had any conversations about Mueller’s probe with anyone at the law firm Kasowitz Benson Torres, which was founded by Marc Kasowitz, Trump’s longtime lawyer.
“Be sure about your answer, sir,” Harris warned.
“I’m not sure I know everyone who works at that law firm,” Kavanaugh told Harris.
The Supreme Court hopeful told Harris that he could not recall, but was “happy to be refreshed.”
“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,” the senator responded.
Harris did not press the issue further after Sen. Mike Lee, R-Utah, interjected.
Kavanaugh concluded his first round of questioning from Judiciary Committee members after 10 p.m.
His confirmation hearing will continue Thursday and Friday, over the course of which he will undergo a second round of questioning from senators. The committee will also hear from panels of witnesses called to testify in support of or opposition to Kavanaugh’s nomination.
