Outside the Beltway

Kavanaugh’s Second Day Of Questioning Was Bumpy, But Won’t Derail His Nomination

The second day of questioning for Judge Brett Kavanaugh was a bit rockier than the first, but nothing happened that seriously threatens his eventual confirmation.

Doug Mataconis · Friday, September 7, 2018 · 12 comments

The third day of the Senate Judiciary Committee hearings on the nomination of Judge Brett Kavanaugh to the Supreme Court was calmer than the tumultuous first day and perhaps a little more contentious than the first day of questioning of the nominee but once again it seems unlikely that anything we learned is going to be sufficient to derail a nomination that seems to be headed toward inevitable confirmation with much of the day dominated by questions about email that Kavanaugh received more than a decade ago when he served as Staff Secretary for President George W. Bush:

The disclosure on Thursday of dozens of previously secret emails involving Judge Brett M. Kavanaugh provoked pointed new questions on the third day of his Supreme Court confirmation hearings, as Democrats pressed him to explain fresh disclosures on abortion rights, affirmative action and previous testimony to the Senate.

Much of the tumult surrounded one quotation from an email that Judge Kavanaugh wrote as a lawyer in George W. Bush’s White House concerning the landmark abortion decision Roe v. Wade: “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.”

To Democrats and abortion rights advocates, that March 2003 statement appeared to contradict testimony from the judge on Wednesday, when he said he considered Roe “settled as a precedent of the Supreme Court.”

But Judge Kavanaugh and his Republican backers dismissed its significance. He said he merely was reflecting “an accurate description of all legal scholars,” not expressing his own opinion.

The revelations from the documents, which had been given to the committee with the understanding that they would not be publicly released, inflamed tensions between the Judiciary Committee’s Republicans and Democrats. The disclosures did not appear to set off a revolt among the Republicans who control the Senate, meaning that Judge Kavanaugh still appears very likely to be confirmed. Senator Susan Collins, Republican of Maine and a key swing vote, indicated to reporters that she accepted Judge Kavanaugh’s explanation of the abortion email.

But the documents hardened partisan lines and once again put the spotlight on Democrats’ bitter complaints that Republicans have kept tens of thousands of pages of Judge Kavanaugh’s White House-era files secret, even from Congress.

Abortion rights proponents pounced on the doubts that Judge Kavanaugh had raised in the confidential writing, portraying him as a potential fifth vote to overturn Roe if he is confirmed and joins the Supreme Court’s now four-member conservative bloc.

“Brett Kavanaugh’s emails are rock solid evidence that he has been hiding his true beliefs and if he is given a lifetime seat on the Supreme Court, he will gut Roe v. Wade, criminalize abortion, and punish women,” Naral Pro-Choice America, the abortion rights lobby, said in a statement.

The email stemmed from an opinion article drafted by the Bush White House to be run under the names of female abortion opponents backing Mr. Bush’s judicial nominees. The opinion article said that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.” Judge Kavanaugh, as a White House aide, objected to that characterization and asked for its removal from the draft opinion article.

The email prompted a grilling from Senator Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee and one of the Senate’s fiercest defenders of Roe. She pointedly insisted that Judge Kavanaugh give her a “yes or no” answer to the question of whether Roe was “correct law.” He would not say.

“I’m always concerned about accuracy, and I thought it was not an accurate description of all legal scholars,” he said, referring to the email. Roe, he went on, is “an important precedent. It has been reaffirmed many times.”

Even outside the hearing room, Judge Kavanaugh’s views on abortion stirred dissent. Adding to the concerns of abortion rights advocates was a reference he made to contraceptives as “abortion-inducing drugs.” He was answering a question from Senator Ted Cruz, Republican of Texas, about his dissent in a case involving Priests for Life, a religious organization that objected to a regulation under the Affordable Care Act requiring many employers to provide free insurance coverage for contraception to their female workers.

The group had objected to an accommodation offered by the Obama administration that allowed it to obtain a waiver by completing a form.

“They said filling out the form would make them complicit in the provision of the abortion inducing drugs that they were as a religious matter objecting to,” Judge Kavanaugh testified.

Some religious organizations regard any form of birth control as an abortifacient. But Judge Kavanaugh’s use of the term “abortion-inducing drugs” set off alarm bells among abortion rights advocates and spawned a hashtag, #abortioninducingdrugs, on Twitter.

(…)

Several Democratic senators, including Senator Cory Booker, Democrat of New Jersey, began posting the previously confidential documents — including some of the same ones published by The Times, as well as many other ones — later Thursday morning after receiving clearance to do so from William A. Burck, a lawyer working for former President George W. Bush who had provided the documents to the committee on the condition that they be kept confidential.

Confusion over the timing of the releases led Senator John Cornyn, Republican of Texas, to accuse Mr. Booker of breaking committee rules. Mr. Booker had referred to several confidential documents late on Wednesday, and declared on Thursday morning that he had decided to violate the rules and disclose documents — posting a set of emails in which Judge Kavanaugh discussed issues like affirmative action and racial profiling.

Threatened with expulsion from the Senate, Mr. Booker declared, “Bring it.”

In one document, Judge Kavanaugh expressed a critical view about some Department of Transportation affirmative action regulations.

“The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what is a naked racial set-aside,” Mr. Kavanaugh wrote, adding that he thought the court’s four conservative justices at the time would probably “realize as much in short order and rule accordingly.”

When Mr. Booker said he was releasing the documents, Mr. Cornyn accused him of grandstanding because he was “running for president.” But Mr. Booker dared Mr. Cornyn to begin the process of trying to bring charges of violating the rules against him.

“I could not understand — and I violated this rule knowingly — why these issues should be withheld from the public,” Mr. Booker said. “This is about the closest I’ll probably ever have in my life to an ‘I am Spartacus’ moment.”

However, Mr. Burck later said in a statement that he had already granted permission to Mr. Booker to release the specific documents he put out.

“We cleared the documents last night shortly after Senator Booker’s staff asked us to,” Mr. Burck said. “We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly. In fact, we have said yes to every request made by the Senate Democrats to make documents public.”

(…)

Another group of newly available documents fueled questioning by Senator Patrick J. Leahy, Democrat of Vermont, about Judge Kavanaugh’s work, from 2001 to 2003, with Manuel Miranda, a former Senate Republican aide who was forced to resign after he and another Republican Senate staff member infiltrated confidential files of Senate Judiciary Committee Democrats, including Mr. Leahy. The Republican aides clandestinely monitored files describing which of Mr. Bush’s judicial nominees the Democrats would try to block and with what tactics, copying thousands of them and passing some on to the news media.

During his confirmation hearings to be an appeals court judge in 2004 and 2006, Judge Kavanaugh had denied any knowledge of what Mr. Miranda had been doing, and he insisted again this week that nothing ever raised “red flags” with him about the information that Mr. Miranda was providing to him. But Mr. Leahy put out formerly secret emails about the two aides’ interactions.

The newly unmasked communications included a March 2003 email from Mr. Miranda to Judge Kavanaugh that included several pages of Democratic talking points, marked “not for distribution.” Another email to Judge Kavanaugh came from a Republican Senate staff member who used the subject line “spying” and referred to “a mole for us on the left.”

Still another email, released Thursday night by Mr. Booker, shows Mr. Miranda proposing a lunch meeting in July 2002 at a deli in downtown Washington with Judge Kavanaugh and a Justice Department official. There, he said, he could “provide useful info to map out Biden and Feinstein,” a reference to Senator Feinstein and Joseph R. Biden Jr., a senator at the time.

Judge Kavanaugh reiterated that he had no knowledge that Mr. Miranda had infiltrated Democratic files, saying he most 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.

Mr. Leahy scoffed, saying, “I was born at night, but not last night.” He added, “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.”\

More from The Washington Post:

Judge Brett M. Kavanaugh’s ­Supreme Court confirmation hearings continued for a contentious and sometimes chaotic third day Thursday, with President Trump the focus of questioning as much as his nominee.

Members of the Senate Judiciary Committee, including some Republicans, pressed Kavanaugh about the judge’s expansive views of presidential power and past writings that concluded civil suits and criminal investigations of presidents would be better delayed until the chief executive left office.

Democratic senators said it was crucial to have an independent Supreme Court in what Sen. Richard J. Durbin (D-Ill.) called “the age of Trump.”

“We’re in a moment . . . where the president has shown contempt for the federal judiciary unlike any president we can recall,” Durbin said. “He has shown dis­respect for the rule of law over and over again. He has repeatedly ridiculed the attorney general of the United States, whom he chose. . . . And that’s why your nomination is different than any.”

Democrats also said a newly surfaced email from Kavanaugh — written when he was an associate counsel at the George W. Bush White House — raised questions about his previous statements that the Supreme Court’s landmark abortion decision, Roe v. Wade, was “settled law.”

Kavanaugh, who spent about 24 hours over two days calmly answering questions, carefully picked his way through a minefield of queries but refused to engage with any criticism of the president who chose him. He declined to comment on Trump’s criticism of Justice Ruth Bader Ginsburg or what Sen. Richard Blumenthal (D-Conn.) called Trump’s attacks on an independent judiciary.

“I’m not going to get within three Zip codes” of such a political controversy, Kavanaugh said of questions about Ginsburg, who started the feud with Trump by questioning his fitness for the Oval Office when he was a candidate.

But in testimony throughout the day, Kavanaugh emphasized the importance of the separation of powers and an independent judiciary as a backstop. He was more specific than in the previous confirmation sessions about the legal limits on a president’s authority.

“I’ve made clear in my writings 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,” Kavanaugh said.

Committee Republicans and Democrats began the day sparring again about documents regarding Kavanaugh’s past service in the Bush White House that have not been released publicly. The hearing then toggled between Democrats pressing Kavanaugh on Trump, abortion and respecting the court’s precedents, and Republicans giving him all the time he needed to defend himself.

Sen. Lindsey O. Graham (R-S.C.) told Kavanaugh to relax and ignore what he called “the circus.”

“Every time we have one of these hearings it gets worse and worse and worse,” Graham said, adding, “Your time is about over. You’re going to make it.”

[Kavanaugh hearing: Nominee declines to condemn Trump’s attacks on judiciary]

Kavanaugh seemed briefly rattled by the deluge of questions about Trump, but for the most part he retained an unflappable demeanor. Late in the day, he was joined by the oft-mentioned girls basketball team he coaches.

“They are getting an introduction to democracy,” Kavanaugh said. “It’s noisy!”

Kavanaugh needs only to attain the support of Republican senators, who hold a majority, to be confirmed. Senate Majority Leader Mitch McConnell (R-Ky.) wants the vote to take place before the Supreme Court’s new term begins Oct. 1.

(…)

But it was Kavanaugh’s views on the presidency that dominated much of the second day of questioning.

Sen. Jeff Flake (R-Ariz), a frequent critic of Trump, said he was concerned about a president “climbing over the lectern” and seizing too much power.

Flake pointed to the judge’s view that the president should not be distracted while in office by criminal investigations.

Kavanaugh said the position he laid out in a 2009 law review article was “simply a proposal for Congress to consider” and not a suggestion for immunity for any president.

“The principle I emphasized there was no one is above the law,” Kavanaugh said. “The president is subject to many legal constraints.” He added the Justice Department has long held that a sitting president cannot be indicted.

The nominee resisted efforts to make the discussion about Trump or some of the president’s controversial statements. On Wednesday, he demurred when asked whether he believed, as Trump said, that there were good people on both sides during the confrontation in Charlottesville at a white supremacist rally.

He took a similar position when asked Thursday about comments Trump has made about the ethnicity of a judge who had ruled against him and attacking recent indictments of GOP congressmen. Justice Neil M. Gorsuch, by contrast, had drawn Trump’s ire when Gorsuch told senators during his confirmation process that attacks on the judiciary were “disheartening.”

“What kind of loyalty is being required of you for this job?” Sen. Cory Booker (D-N.J.) asked Kavanaugh.

Sen. Mazie Hirono (D-Hawaii) suggested Kavanaugh was avoiding any criticism of Trump.

As a judge, Kavanaugh said, “We stay out of politics, we don’t comment on comments made by politicians.”

Democrats also renewed a line of questioning they began Wednesday: whether Kavanaugh had discussed special counsel Robert S. Mueller III’s investigation with anyoneView Post at the law firm founded by one of Trump’s personal attorneys, Marc Kasowitz.

Kavanaugh said he did not recall any such discussions. He acknowledged that he knows Ed McNally, a former Bush White House colleague who is now at the firm. Kavanaugh said he had not discussed the special counsel’s probe with McNally. The firm later echoed that in a statement, saying McNally did not help prepare Kavanaugh for his hearings or discuss the Mueller probe with him.

To a large degree, it seemed apparent that much of what was going on over on the Democratic side of the committee was about electoral concerns more than it was about Kavanaugh himself or any organized effort to keep him off the Court that has even the slightest chance of succeeding. The Democratic base has made it clear to Senate leadership that opposition to Kavanaugh is an important issue to them and any failure to live up to the expectations of this wing of the party could have a serious impact on voter turnout in November, which obviously would impact the party’s chances at taking control of the House and Senate. Additionally, as both The New York Times and The Washington Post point out, many of the members of the Judiciary Committee who have been the most aggressive in their questioning of the Judge have been people who are considered potential candidates for President in 2020. The most obvious examples here, of course, are Senators Cory Booker and Kamala Harris, both of whom have been particularly aggressive in their questioning, but it also applies to other Senators such as Amy Klobachur who has also been mentioned as a potential 2020 candidate. For these potential candidates, being seen as having been aggressively opposed to Kavanaugh’s nomination is a way to prove their bona fides to the Democratic base. The only problem is that their job on the Senate Judiciary Committee isn’t to score political points, and it’s not at all clear that the sometimes tangential lines of questioning these Senators have chosen are accomplishing anything with respect to an average voter that might be watching the hearings at a given time.

In any case, after two days of questioning it seems clear that Senate Democrats were unable to really lay a glove on Kavanaugh, or to bring to light anything that has a reasonable chance of derailing his confirmation. The fact that he declined to answer question after question regarding how he might rule with regard to a specific precedent might be frustrating, but as I stated yesterday it follows in the custom of every Supreme Court nominee dating back to Ruth Bader Ginsburg in 1993 and is also the only proper response that a sitting Judge and prospective Associate Justice can give to such questions. To make any promises regarding how they might rule in the future would be a tremendous breach of judicial ethics, would set a precedent for future nominees that would only guarantee that these hearings will become even more political, and would cast doubt on the legitimacy of future decisions. The Senators know this, of course, and they mainly ask questions like this for the consumption of the television audience.

We’ve got one more day of hearings today that will consist largely of testimony by third-party groups that support or oppose Kavanaugh’s nomination, but beyond that, the path seems to be clear. The Judiciary Committee will vote out the nomination favorably on a party-line vote sometime next week, and it will head to the Senate floor where Mitch McConnell will give it priority over other matters. This means we’ll likely get a vote during the week of September 17th and that Kavanaugh will be confirmed — with the support of all the Republicans in the Senate and at least three (and possibly four) Democrats — and able to take his seat on the court before the new term begins on October 1st.