Kavanaugh Closer to Confirmation After Raucous Senate Hearings
(Bloomberg) -- Supreme Court nominee Brett Kavanaugh is on a likely path to be confirmed for the court’s new term starting Oct. 1 after Senate hearings where he sidestepped Democratic efforts to pin him down on abortion and the investigations of President Donald Trump.
Kavanaugh’s confirmation to succeed his former boss, the now-retired Justice Anthony Kennedy, could create the most conservative Supreme Court since the 1930s. Judiciary Committee Chairman Chuck Grassley has said he expects his committee to vote on Sept. 20, which would allow a Senate floor vote the following week. Senate Majority Leader Mitch McConnell said this week he’s confident Kavanaugh will be confirmed.
Amid intermittent outbursts by protesters and partisan squabbles over confidential documents during Thursday’s hearing, Kavanaugh offered few new insights into his thinking on issues likely to come before the court. Nor would he discuss the character of the president who nominated him or Trump’s penchant for demanding loyalty from his appointees.
"My only loyalty is to the Constitution," Kavanaugh told Democratic Senator Cory Booker of New Jersey. "I think you should conclude, respectfully, that I have the independence required to be a good judge."
The session gave no reason to think Kavanaugh had swayed Booker or any other Democrat on the Senate Judiciary Committee. Democrats voiced new frustration that almost 200,000 pages of documents from Kavanaugh’s time in the George W. Bush White House were being treated as confidential, available to the senators but not the public.
"We simply can’t hide these documents from the American public," Senator Amy Klobuchar of Minnesota said. "It is the highest court of the land."
Grassley, an Iowa Republican, said he was releasing sealed material on a case-by-case basis upon the request of senators. Republicans said every requested document had been made available.
After Kavanaugh completed a second 12-hour-plus day of testimony Thursday, White House spokesman Raj Shah said in a statement, "Through long hours and days of questioning, Judge Kavanaugh consistently reinforced his firm belief in the bedrock principles of judicial independence and the rule of law."
Capitol police arrested more than 200 people over three days on charges of disrupting the proceedings .
The final Senate confirmation will be largely, if not entirely, along partisan lines. The key question is whether two Republican senators who support abortion rights -- Susan Collins of Maine and Lisa Murkowski of Alaska -- will back Kavanaugh.
Neither has said anything publicly to suggest they harbor deep concerns about elevating Kavanaugh to the high court. They are under intense pressure from outside groups opposing him, including high-cost TV ads airing in their home states.
“I am still working through my process,” Murkowski told reporters.
Republicans control the Senate, 51-49, and if either Collins or Murkowski were to back Kavanaugh, he may have enough votes to win confirmation, with Vice President Mike Pence able to cast a tie-breaking vote.
Kavanaugh stayed out of the document fray, saying he wasn’t involved in decisions about what to produce. But he downplayed one of the newly released documents, a 2003 email he wrote as a White House lawyer about the 1973 Roe v. Wade abortion-rights ruling. In that message, Kavanaugh suggested changes to a draft op-ed that had said legal scholars "widely understood" Roe to be settled law.
"I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the court can always overrule its precedent, and three current justices on the court would do so," Kavanaugh wrote in the email.
He added on Thursday that he thought the op-ed "was overstating something about legal scholars, and I’m always concerned about accuracy."
Kavanaugh called Roe an "important precedent," repeating what he said a day earlier while refusing to say whether the ruling was correct.
As for Trump, Kavanaugh took pains to avoid suggesting he had any preconceived views on legal issues that might arise from investigations by special counsel Robert Mueller and federal prosecutors in New York.
He said he would keep an "open mind" if he were asked to consider a law that protected a special counsel against being fired by the president. His answers on presidential power left Democrat Chris Coons of Delaware frustrated.
"I don’t think you’re being direct with me about that, because I think to be direct with me about that in this context would put your nomination at risk," Coons said.
Indicting the President
Kavanaugh refused to say he once believed a sitting president couldn’t legally be indicted, even though he wrote in 1998 that the Constitution “seems to dictate” that “criminal prosecution can occur only after the president has left office."
He said he didn’t intend to suggest years ago that the Supreme Court’s 1974 Nixon tapes ruling was incorrect. A magazine quoted him in 1999 as saying in a lawyer roundtable that the ruling might have been "wrongly decided." The decision required President Richard Nixon to turn over secret Oval Office tape recordings.
Kavanaugh said his comments published by Washington Lawyer were a response to arguments from attorneys for President Bill Clinton that an investigation by Independent Counsel Kenneth Starr had weakened the presidency. Kavanaugh had worked for Starr.
"I said, well, we were just following U.S. v. Nixon," Kavanaugh said Thursday. "My position is: Either you’re wrong or Nixon’s wrong."
The Washington Lawyer quoted Kavanaugh as saying: “Maybe Nixon was wrongly decided -- heresy though it is to say so."
Under questioning by Democrat Richard Blumenthal of Connecticut, Kavanaugh said he hasn’t had "inappropriate" conversations with anyone about Mueller. In an exchange that left both men appearing exasperated, Kavanaugh didn’t directly say whether he had discussed Mueller at all with anyone at the White House.
“If I understand your question correctly, I haven’t had such discussions," Kavanaugh said. Blumenthal said Kavanaugh had "dodged the question."
Kavanaugh also said he didn’t discuss Mueller or his probe with anyone at Kasowitz Benson Torres, the law firm whose partners include Trump’s longtime attorney Marc Kasowitz. Senator Kamala Harris, a California Democrat, had pressed the issue for several minutes on Wednesday, and she returned to the subject Thursday until she got an answer from Kavanaugh. The firm also said no conversations had taken place.
Another document released Thursday showed that Kavanaugh criticized an affirmative action program used in federal contracting as a "naked racial set-aside" in a 2001 email.
The comment involved a program designed to direct more federal highway dollars to minority-owned contractors. At the time, the Bush administration was engaged in an internal debate over what position to take in a court fight.
The administration eventually took a middle ground, urging the Supreme Court to throw out a challenge to the program without reaching the substantive issues. The court then dismissed the case unanimously.
Another set of documents showed Kavanaugh discussing using racial profiling at airports in the aftermath of the Sept. 11, 2001, terrorist attacks. In one email, Kavanaugh describes himself as among those "who favor effective security measures that are race-neutral."
That email left open the possibility that racial profiling could be used as an interim measure until "a truly effective and comprehensive race-neutral system is developed and implemented."
On Friday, the Judiciary panel is scheduled to hear views on Kavanaugh from outside witnesses presented by committee Republicans and Democrats.
McConnell heralded the judge’s demonstrated knowledge of the law.
"Judge Kavanaugh was patient and professional, his answers showed total command of everything from the fine details of case law to the principles upon which our founders built the Constitution,” McConnell said on the Senate floor. Republicans are aiming for confirmation before the court’s new term begins Oct. 1.
Senate Minority Leader Chuck Schumer of New York said Kavanaugh dodged the toughest questions and benefited from decisions over documents that may have hidden his more controversial views. Kavanaugh left senators and the public with no real understanding of his views on presidential power, abortion, Obamacare’s protections for people with pre-existing conditions and many other matters, Schumer said on the Senate floor.
“What else don’t we know about this nominee?” Schumer asked. "When did the Republican majority decide that Supreme Court nominees should be like icebergs, only a small portion showing while the real nominee lurks unseen, underwater, and potentially dangerous?”
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