Judge Kavanaugh responded to questions from members of the Senate Judiciary Committee on Day 2 of his Supreme Court confirmation hearing. The main fireworks that erupted during this day came from repeated outbursts by shrieking protesters who were promptly removed by the capitol police. The hearing itself proceeded far more smoothly than on Day 1.
Overall, Judge Kavanaugh displayed, during hours of grueling questioning, a calm judicial demeanor, open-mindedness, keen intellect and an astounding knowledge of Supreme Court case law. Judge Kavanaugh explained how he viewed Supreme Court precedents as well as his textualist approach to interpreting the Constitution and statutes. “Judges are not policy makers but law-appliers,” Judge Kavanaugh said in response to a question by Senator Mike Lee (R-Utah), with whom Judge Kavanaugh engaged in a scholarly discussion about the meaning of textualism and originalism in connection with constitutional and legislative interpretation. The judge also provided a civics lesson on the bedrock constitutional principles of separation of powers and federalism, and the Bill of Rights protections of free speech and the free exercise of religion. It is a civic lesson that the Left rejects as a matter of principle.
At the same time, Judge Kavanaugh showed his human side in describing his work with and empathy for the disadvantaged and in emphasizing that he takes the real-world impact of his decisions into account. “I don’t live in a bubble. I live in the real world,” he said. Judge Kavanaugh also displayed his strong belief in racial equality when he praised Brown v. Board of Education, which overruled the “awful precedent” of the separate-but-equal Plessy v. Ferguson decision, as the Supreme Court’s finest moment.
The Democrats for the most part did not behave as badly on Wednesday as they had on Tuesday. Nevertheless, some Democrat members repeatedly interrupted Judge Kavanaugh as he tried to respond fully to their questions. They were interested in hearing themselves talk rather than what Judge Kavanaugh had to say. They mischaracterized some of his opinions and statements while falsely trying to portray him as far outside his court’s mainstream, despite overwhelming statistics to the contrary. Senators Patrick Leahy (D-Vermont) and Dick Durbin (D-Illinois) also sought to challenge Judge Kavanaugh’s credibility regarding his work in former President George W. Bush’s administration more than a decade ago and regarding testimony he gave in his Senate confirmation hearing back in 2006 for his position as a federal appeals court judge.
Republican members of the Senate Judiciary Committee allowed Judge Kavanaugh to expound on his judicial philosophy and his understanding of the Constitution. They also gave him the opportunity to clarify his positions on key issues that Democrats were repeatedly distorting.
Here are some of the highlights of the Day 2 questioning.
Chairman Charles E. Grassley (R-Iowa) got things started by asking Judge Kavanaugh for his views on the presidency and the law. “No one is above the law in our Constitutional system,” Judge Kavanaugh said. “Under our system of government, the Executive Branch is subject to the law, subject to the court system,” he added.
Judge Kavanaugh returned to the theme of limitations on presidential powers again and again in response to questions from senators on both sides of the aisle who expressed concerns with President Trump’s views on his own powers and prerogatives. When asked what sort of loyalty he believed he owed to the president who selected him for the Supreme Court, for example, Judge Kavanaugh responded that “I owe my loyalty to the Constitution.” When asked about one of his law review articles, in which he expressed the view that sitting presidents should be given some leeway in having to respond to criminal investigation subpoenas while in office as a matter of policy, Judge Kavanaugh explained that the terrorist attacks on September 11th strongly influenced his thinking. He added that his writings on this issue were intended only to present ideas for Congress to consider and did not reflect his constitutional views on the subject. “As a judge, I have not taken positions and would have an open mind,” he said. Judge Kavanaugh denied an irresponsible assertion by Senator Chris Coons (D-Del.) that the judge believed it was constitutionally dubious for a prosecutor to investigate the president. Judge Kavanaugh did cite the long-standing opinion of the Justice Department that a sitting president cannot be indicted while in office.
Judge Kavanaugh praised U.S. v. Nixon, a unanimous Supreme Court decision which ordered President Richard Nixon to deliver tape recordings and other subpoenaed materials to a federal district court, as one of the greatest decisions of the Supreme Court. While saying that he believed U.S. v. Nixon was correctly decided, he would not answer hypothetical questions on how he might apply the U.S. v. Nixon decision in any future case involving the question whether a president can be compelled more generally to respond to a subpoena. Senator Richard Blumenthal (D-Conn.) tried to corner Judge Kavanaugh into pledging that he would recuse himself from any cases involving President Trump, whom Senator Blumenthal labeled an unindicted co-conspirator. Citing the independence of the judiciary, which included not making commitments on possible future cases, Judge Kavanaugh did not take the bait.
Several Democrat senators raised their banner issues of guns and abortion. For example, California Senator Dianne Feinstein, the Democrat ranking member of the committee, quizzed Judge Kavanaugh on his dissenting opinion that a ban on semi-automatic weapons is unconstitutional. Judge Kavanaugh said he was simply following precedent from the Supreme Court. He noted that such weapons are widely used in the United States. Senator Feinstein then proceeded to discuss the abortion issue, asking what Judge Kavanaugh meant when he said that Roe v. Wade is “settled law.” He talked about the importance of precedents in general and the importance that people attach specifically to the abortion issue “in the real world.” He stated that the Roe decision has “been reaffirmed many times over the past 45 years,” including in the Planned Parenthood v. Casey decision, which he called a “precedent on precedent.” When asked by several senators about his dissent in a case regarding an unaccompanied immigrant minor in a detention facility who wanted an immediate abortion, Judge Kavanaugh patiently explained his rationale. He analyzed the case based on analogous Supreme Court precedent involving parental consent that allows for some delay to obtain such consent before the abortion is performed. Judge Kavanaugh believed that a delay was appropriate in this case so that the minor could first obtain a sponsor to consult with before having the abortion.
Despite attempts by various Democrat senators to get Judge Kavanaugh to state whether he would overrule Roe v. Wade itself, the judge demurred.
Senator Patrick Leahy (D-Vermont) spent most of his time during his first round of questioning pressing Judge Kavanaugh on whether he was aware of receiving electronic materials from a Republican staffer, Manuel Miranda, who allegedly hacked into Democrat senators’ records and stole confirmation hearing materials. Senator Leahy referred specifically to information about questions Senator Leahy had planned to ask in those hearings. He said that “I’m concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me.” Senator Leahy provided no proof for his claim, which he blamed on the confidentiality restrictions imposed on numerous documents received by the committee pertaining to Judge Kavanaugh’s days in the Bush White House. He requested that certain documents currently deemed confidential be made publicly available so that he could ask Judge Kavanaugh about specific emails to prove his allegation.
Judge Kavanaugh responded that he was not aware of receiving information from stolen emails and did not participate in any such alleged theft. He also said that it is common as part of the judicial selection process to inquire into what senators would be interested in learning from the nominee. Without producing any specific proof to support his assertion, Senator Leahy said there was evidence that Judge Kavanaugh was provided with materials that were allegedly stolen from the senator, contradicting Judge Kavanaugh’s prior testimony. Senator Leahy also raised questions regarding the truthfulness of Judge Kavanaugh’s prior testimony denying his involvement in former President George W. Bush’s warrantless surveillance program. Judge Kavanaugh said that his testimony in 2006 during the Senate hearing for his confirmation as a federal appeals court judge was “100 percent accurate.”
Progressives are latching onto the line of questioning involving what Judge Kavanaugh may have known at the time about the alleged stolen emails and the extent of his involvement in Bush administration detention, interrogation and surveillance policies. It is their slender lifeline in hoping to defeat Judge Kavanaugh’s confirmation if it leads to unearthing a “smoking gun” and proving perjury in Judge Kavanaugh’s 12-year old congressional testimony.
Sounding like a conspiracist, Senator Sheldon Whitehouse (D-RI) spent much of his first round of questions criticizing the big conservative funders he claimed were behind Judge Kavanaugh’s selection and behind the special interest litigation leading to closely divided Supreme Court decisions in their favor. Judge Kavanaugh took his concern about potential judicial bias and the need for more disclosure of the identities of such special interest funders seriously. “I don’t rule for parties, but your disclosure ideas are interesting for me,” he said. “If confirmed, I will work to maintain the confidence of all the American people.”
Senator Amy Klobuchar (D-MN) asked Judge Kavanaugh about his constitutional objections in a dissenting opinion to the Consumer Financial Protection Bureau. He responded that he had a concern with the fact that this agency was unusual in that it had a single director. His remedy, he explained, would not have been to abolish the agency but to make the single director removable at will. In response to Senator Klobuchar’s questions regarding campaign finance laws, Judge Kavanaugh pointed to the distinction between limits on campaign expenditures, which have been found to be unconstitutional, and limits on campaign contributions which he has upheld.
Senator Cory Booker (D-N.J.) twisted Judge Kavanaugh’s words in trying to falsely portray him as open to racial profiling while opposing the promotion of racial diversity. Senator Booker suggested that Judge Kavanaugh was insensitive to continuing racial discrimination. He used Judge Kavanaugh’s opinion on voter ID laws, which he claimed were the modern-day equivalent of poll taxes, to supposedly support his assertion. Judge Kavanaugh took the time to describe his work for racial justice and against racial bias, including his personal efforts to promote diversity in his own hiring of minority law clerks. Senator Booker’s race-based demagoguery is providing ammunition to civil rights activists and the Congressional Black Caucus, who are planning a protest against Judge Kavanaugh on Thursday outside the room where the confirmation hearing is being held.
Finally, Democratic California Senator Kamala Harris played the role of a prosecutor in repeatedly cross-examining Judge Kavanaugh on whether he discussed Special Counsel Robert Mueller’s investigation with members of a law firm founded by President Trump’s personal lawyer. She cavalierly refused his request for specific names of members of the firm in order to refresh his recollection. She asked the same question over and over again in an obvious attempt to trap Judge Kavanaugh with a headline grabbing gotcha. Senator Harris, a potential 2020 Democrat presidential contender, indicated her opposition to Judge Kavanaugh’s confirmation the evening President Trump announced his decision to nominate the judge. She is doing nothing more than trying to burnish her progressive credentials to please the Leftist base, including the hecklers in the audience.