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Thread by @chrisgeidner: "Still early here in the hearing room, but this will be my thread for Day Two of the Brett Kavanaugh confirmation hearings. Today: Each senat […]"

, 151 tweets, 21 min read
Still early here in the hearing room, but this will be my thread for Day Two of the Brett Kavanaugh confirmation hearings. Today: Each senator on the committee gets 30 minutes for questions. If they all take their time, and none go over (ha!), that’s 10.5 hours.
Here’s Sen. Kennedy, talking with Kavanaugh’s wife, Ashley, in advance of Day Two.
Five people in a row, one by one, just interrupted the hearing, and were taken out one by one.
Here are three of the people taken out of the hearing this morning.
Grassley has begun his 30 minutes of questions, but two more people in the audience have interrupted the hearing, and been swiftly escorted out. There are more than a dozen capitol police standing around the back of the hearing room, basically just waiting.
Three more protesters taken out since then.
"Please tell us what judicial independence means to you," Grassley asks.

Kavanaugh: "No one is above the law in our constitutional system."
About a half-dozen more people have been removed from the hearing. The public seats are currently left empty.
After talking about Youngstown Steel, dissents in Korematsu, and US v. Nixon, Kavanaugh discusses Hamdan. Here's more on his ruling there: lawfareblog.com/kavanaugh-and-…
New people were brought in to the public seats, many showed that they had "DISSENT" written on their hands as they walked in. Several have since spoken out and been removed.
"My personal beliefs are not relevant to how I rule in cases," Kavanaugh says, when asked by Grassley about precedent and if he's ruled against his personal views. "Reliance interests are extremely important to consider" in addressing precedent.
Will be interesting to see if this comes up in the coming days:
Talking about judicial independence also means being an independent nominee, Kavanaugh says.
- "Litigants have to know we have an open mind."
- Says he doesn't want to appear to be agreeing with certain decisions in exchange for votes from senators, citing Roberts' confirmation.
Feinstein is up, she starts with guns.
Talking about his DC assault weapons ban opinion dissent. "Are they dangerous and unusual?" Kavanaugh asks, of semiautomatic weapons, saying that all weapons are dangerous, but that they aren't unusual. Opinion: cadc.uscourts.gov/internet/opini…
Feinstein moves on to abortion. Asks about what Kavanaugh means by "settled law." Is it "settled precedent" and can it be overruled?

Kavanaugh says it deserves "respect under principles of stare decisis."
Kavanaugh notes that Roe "has been reaffirmed many times ... most importantly in Planned Parenthood v Casey."

Kavanaugh: "I understand the importance of the issue. ... I don't live in a bubble. I live in the real world."
Kavanaugh: "Planned Parenthood v. Casey reaffirmed Roe. ... Casey now becomes a precedent-on-precedent [because] it applied the stare decisis factors and reaffirmed it."
Kavanaugh: "It is an important precedent of the Supreme Court. ... I understand the significance of the issue, as a jurisprudential issue ... and the real-world effects of the issue."
Now, we've moved on to Kavanaugh's views on whether presidents should be investigated.
Kavanaugh talks about his views, and the fact that they were recommended congressional actions. What led to his change from the Starr era to his post-Bush service. "Sept. 11th," Kavanaugh says.
"They were not my constitutional views. ... I've never taken a view on the constitutional question," Kavanaugh says, noting that he was giving views on what Congress could do.
Of the claim that he thinks Nixon could have been wrongly decided, Kavanaugh says: "That quote is not in context and is a misunderstanding of my position."
Feinstein: "Can a sitting president have to respond to a subpoena?"

Kavanaugh: "As a sitting judge and a nominee ... I can't give you an answer to a hypothetical."
Hatch is up. Asked if he'd owe his loyalty to the president or the people, Kavanaugh says, "I owe my loyalty to the Constitution."
Kavanaugh is asked about the torture report. He talks about the "enhanced interrogation" program. "I was not involved — I was not read into that program," noting that he was not involved in the program or legal memos underlying it.
Asked about detention policies and whether he misled the committee back in 2006 during his DC Circuit hearing. "I told the truth, the whole truth," he said. "I was not read into that program."
Asked about women in the law and clerks, Kavanuagh says, "There's a pipeline problem."

"What it takes is just not accepting the same-old answer," he says. He says, "I try to figure out why, and then do something about it."
Hatch asks about Kozinski, saying suggestions that Kavanaugh would have known about the allegations against Kozinski "an effort at 'guilt by association.'"
Kavanaugh notes that Kozinski led Kennedy's clerkship hiring process and that Kavanaugh had thus been involved in communications with him through that. Says he didn't know about the allegations until the Post report.
Kavanaugh, on Kozinski sexual harassment news: "It was a gut punch. It was a gut punch to me. It was a gut punch to the judiciary. I was shocked and disappointed. Angry. No woman should be subject to sexual harassment in the workplace."
"I am not a skeptic of regulation," Kavanaugh says. "I am a skeptic of unauthorized regulation."
Leahy is up. Kavanaugh notes — again — that the torture report and the Office of Professional Responsibility report don't mention his name.
Leahy is talking about the stolen emails — an OLD stolen emails story. Here's a read, folks: washingtonpost.com/wp-dyn/article…
Leahy: "Did Mr. Miranda ever provide you with highly specific information about what [Democratic] senators were planning?"

Kavanaugh is winding, says there were meetings and, "of course" things would come up about what senators were planning.
Leahy raises a July 19, 2002 email to Kavanaugh from Miranda, and questions raised by Leahy's staff about Priscilla Owen's nomination.
"Were you aware that you were getting information from stolen emails?"

"No," Kavanaugh says.
Note: Of the 100,000 pages of documents withheld by the Office of George W. Bush from Kavanaugh's files, Burck has said the key part of those was related to Kavanaugh's White House work on judicial nominations. buzzfeednews.com/article/chrisg…
"Did Miranda ever ask to meet with you at an off-site location outside of the White House or Senate?"

Kavanuagh hedges.

Leahy asks, specifically, if he was asked to attend a meeting about Biden and Feinstein.

Kavanaugh says it was possible.
Leahy: Did he ever hand you material separately from what was sent via email?

Kavanaugh: Could you give me something specific?

L: Documents marked confidential?

K: "It wouldn't have raised anything in particular in my mind."
Oh, here we are. All of this is about "committee confidential" documents.
Leahy: "I want Judge Kavanaugh to see the emails, which came from Mr. Miranda."

Grassley is unhappy.

Leahy also is unhappy.
"There are at least 6 documents that are marked committee confidential" that relate to this, Leahy says.
Leahy showed a video.

Grassley said this is a precedent-making move, so he read a whole thing about this, and is letting Kavanaugh provide more video if he wishes.

The Senate is a helluva thing.
The video is about warrantless surveillance program. Kavanaugh notes the video is about the "terrorist surveillance program."

Kavanaugh says he had not previously been read in to the program.
Asked if he ever worked with John Yoo on warrantless surveillance.

Kavanaugh says it was "all hands on deck" after Sept. 11. "There was so much going on in the wake of Sept. 11. ... We had eight lawyers in there ... and there were so many issues to consider."
L: "Can a president issue a pardon in exchange for a bribe?"

Kavanaugh says there could be a secondary crime of the bribe, in addition to whatever was being pardoned, and he wouldn't want to conflate them.

Also: "The question of self-pardon is something I have never analyzed."
Graham is up. Asks if Kavanaugh ever knowingly was involved in the theft of emails.

K: No.

G: Was he involved in the creation of the warrantless surveillance program?

K: No.
Graham asks Kavanaugh if he wants to respond to the Parkland father who was at the hearing.

"I base my decisions on the law ... but I do so with an awareness of the facts." He says he understands the passion people feel about issues.

He did not directly address the father.
Kavanaugh used the question to talk about meeting homeless people by volunteering to help provide meals to homeless people through the church.
After a break from protesters, a protester mentioning queer rights is arrested and removed as we approach noon.
Graham asks about Roe. "Would you listen to both sides?"

K: I always do.

G: When it comes to overturning longstanding precedent, how do you do it?

K: Restating his "precedent-on-precedent" discussion, he adds, "There are factors you look at when considering any precedent."
Graham asks him about what he did on Sept. 11.

G: "When somebody says, post-9/11, we've been at war on terrorism?"

K: Says yes, because the AUMF is still in effect.
After break, Durbin is up. He criticizes the document process, specifically going around NARA.
Durbin is now asking about the Haynes nomination, and Kavanaugh's answers back in 2006 about the nomination and treatment of detained individuals.
We had our first afternoon interruption just now.
K: "I told the truth about that. My name is not in the reports."

Durbin asks if K was involved in the Dec. 2005 torture ban bill signing.

"I can't recall what I said," Kavanaugh said, adding that there was much discussion within the White House.
Durbin asks about Kavanaugh's Garza dissent — about the undocumented minor who was seeking an abortion.

Kavanaugh says SCOTUS parental consent cases are the most analogous cases.

Durbin says that Kavanaugh is ignoring the judicial bypass provision, which she had done.
Kavanaugh reads a line from Casey: "Minors benefit from consultation about abortion."

Durbin says that Kavanaugh is adding to the requirements of Texas law.
Kavanaugh continues to ignore Durbin's notes about the fact that the federal gov't was placing additional requirements on the minor above and beyond the Texas law requirements.
In sum, Kavanaugh says: "I did my level best in an emergency posture. I did my best to follow precedent."
We moved on to slaughterhouses — but not The Slaughterhouse Cases.

Instead, it's Agri Processor Co. v. NLRB. caselaw.findlaw.com/us-dc-circuit/…

He says he thinks he was right.
"You failed to follow Supreme Court precedent," Durbin says, noting that the ALJ, NLRB, and two appeals court judges disagreed with him.
Grassley has another appointment, so Lee is temporarily taking the chair.

Now up, Cornyn.
Three more protesters get up before being removed. The final protester referenced Citizens United.
Two more protesters, one by one, as Cornyn proceeds, who is talking about how judges decides matters on a case-by-case basis.
A teen stands on a chair: "I'm 18, and I'm here for the youth of the country. You're ruining my future."

A second young person follows.
“Stop Kavanaugh!” Our bodies, our choice!”
(They quickly threw on those handmaid’s outfits as they stood up.)
Whitehouse is up. He criticizes the "non-assertion assertion of executive privilege" involved at withholding documents from the committee.
Whitehouse asking about the role of the Federalist Society in his nomination.

K says Trump made his nomination.

What about Leonard Leo's role? (Leo is on leave from his role at Fed Soc to help the White House w the nomination.)

K: "I don't know. I don't know the specifics."
Whitehouse brings up all of the money that the Judicial Crisis Network spends.

Kavanaugh: "There are a lot of ads against me as well."
Oof. I just looked up at the dais, and there are SO MANY SENATORS we've not yet heard from.
Whitehouse is asking about amicus participation before the Supreme Court.
One-two protester moment.

A woman who started with clapping, goes on to: "We should have an impeachment hearing, not a confirmation hearing."

A second: "We will not go back."
Whitehouse pulls together Fed Soc, JCN, Pacific Legal Foundation and similar groups, and amicus efforts, with pro-corporate decisions to present a "tableau" that he says he finds troubling.
Lee is up. Starts by asking if he had communication with Fed Soc after Kennedy's retirement announcement.

Kavanaugh says no.
Another abortion-related protester interrupts and is removed. The capitol police are getting noticeably rougher with their removal of protesters — pulling them by their full body quickly out of the side door of the room.
Another protester is removed.
Klobuchar is up, and is talking about the staff sec docs and the withheld 100K pages.

Klobuchar suggests a distinction b/w WH and DOJ SG records.

"There's one executive branch," Kavanaugh says.

[Enter your unitary executive pieces.]
On his view that CFPB is not constitutional, he notes the issue was particular to the fact that it was a "single director independent agency."
"I didn't throw the agency out," Kavanaugh says, noting that he just said the director could be replaced at-will by POTUS.
Klobuchar asks about campaign finance, noting his email questioning campaign contribution limits. See: cnn.com/2018/08/31/pol…
Kavanaugh notes that he upheld contribution limits in two cases.
Going for the troll win today, Cruz says that Garland and Kavanaugh have agreed in 93% of their opinions.

He adds:
- Garland joined 27 of 28 Kavanaugh panel opinions.
- Kavanaugh joined 28 of 30 Garland panel opinions.
Yes, Cruz is up.
9th, 10th, 1st Amendment questions, including a follow-up relating to religious liberty.
Four protesters in a row, including one who specifically called out Sens. Collins and Murkowski — neither of whom are on the Judiciary Committee, so not in the room.
Funny enough, this could be my tweet, too. We're on a coaching question here in the Judiciary Committee.
Coons is up. He's talking about Kavanaugh's comment that the independent counsel law was a "constitutional travesty." Kavanaugh leans on Kagan's comments in praise of Scalia's Morrison dissent, but Coons differs with Kavanaugh on his interpretation of her comments
Coons asks why Kavanaugh said he'd overrule Morrison, and didn't say something like Buck v. Bell or Korematsu. Kavanaugh had no really good answer.

"Would you vote to overturn Morrison?"

"I'm not going to say more —"
Kavanaugh is interrupted by a protester who says that’s why Kavanaugh was nominated — as in, his views on executive power and limits on investigations into presidents.
Coons, who has used his time to just go through the process of how government can look into allegations of executive wrongdoing, is moving on to investigations.
Kavanaugh, asked about criminal liability for a sitting president, says that "the Justice Department for 45 years ... has taken the position" that a sitting president can't be indicted.
Unitary Executive Time!
Check out Cruz, when Sasse said he is sympathetic to protesters worried about whether Kavanaugh would be Trump’s puppet and wouldn’t hold the president accountable. (Sasse said he doesn’t think that, though, and that that’s why he’s likely to vote for Kavanaugh.)
In other news: Sasse is up.
E?
Blumenthal is up, noting Trump's position as an unindicted co-conspirator to federal crimes, asking whether Kavanaugh would recuse himself from any case involving Trump's liability.

Kavanaugh says part of his view of judicial independence means he will not take such a position.
Blumenthal says that Kavanaugh is ready to overturn Roe, taking aim at his use of the phrase "abortion on demand."
Kavanaugh talks a lot about Planned Parenthood v. Casey as the "precedent on precedent" abortion case, but I don't think I've heard him once mention Whole Woman's Health, the more recent, 2016 precedent — which addressed the "undue burden" substantively and significantly.
Blumenthal is talking about executive authority on prosecutorial discretion. Here's the Kavanaugh dissent they're discussing: caselaw.findlaw.com/us-dc-circuit/…
He's now moved on to guns, and is bringing up Kavanaugh's "common use" discussion from earlier.
Grassley is defending Kavanaugh unprompted again, noting a time when Kavanaugh ordered the president to enforce a law.

So. OK.
Flake is up. "What people do you admire and why?"
[Narrator: He's got a NYT op-ed at the ready.]
Justices that Kavanaugh says he admires ... Kennedy, Scalia, Rehnquist, Robert Jackson, and Thurgood Marshall.
Flake asks about constraint on the executive, noting his issues with Trump.

Appropriations power, Senate confirmation power, the "ultimate remedies" — impeachment and expulsion — and "there are statutes that regulate" presidential and executive actions. "There are norms."
Flake asks about the Trump tweets on DOJ prosecutorial decisions.

Kavanaugh: “I don’t think we want judges commenting on the latest political controversy.”
Hirono is up, and is talking about Kozinski.
Of the decades-long period of allegations against Kozinski, and despite Kosinski and Kavanaugh’s friendship — Kozinski introduced Kavanaugh at his 2006 confirmation hearing — Hirono says: “You saw nothing, you heard nothing, and you obviously said nothing.”
She then asked if he knew about the allegations against Rob Porter. He also says he did not know about them.
Crapo is up.
Sen. Kennedy is chairing currently, as we head into the dinner recess. Sen. Booker is up at 8p. (I’ve relocated, btw.)
We're back. And Booker is up, talking about affirmative action.
Booker: "Is it never permissible for government to use race to redress past discrimination?"

Kavanaugh: "The Supreme Court has said —"

B: "I know what the Supreme Court has said. I want to know what you think."

He's tried this a few times, and Kavanaugh keeps going back.
Booker: Do you think diversity in higher education is a compelling interest?

Kavanaugh: The Supreme Court says it is.

Booker: [Sigh.]
The look when Tillis cut in to question Booker’s handling of his questioning.
Booker is ending on voting rights, and voter ID.
Booker: "Your answers don't provide me comfort."
Lee says Booker was referring to "committee confidential" documents.

Booker counters that the process is "rigged" b/c there's no reason an email about racial profiling should be comte confid.

Lee says he agrees; doesn't know why it was marked comte confid.
That was a kinda remarkable exchange. Lee basically disclaimed the secrecy here, said he had nothing to do with the decision to make the docs comte confid and didn't think that one should be.
Again, this is, in part, a result of the unprecedented way the documents are being handled. It isn't NARA making the first call and then presidents, former and current, objecting. It's just GWB's office making the first call, and then letting DOJ direct that more be kept secret.
Sen. Kennedy is now up.
Cameras in the courtroom.

Kavanaugh says that others oppose it, so he’s wanting to back off until he’s there, “if I’m lucky enough to be there.”

He then begins to add a caveat: “As to the decisions, if I were starting — I think I’ll stop there.”

Sounded like he’d be OK w that!
Note: Earlier this summer, the Supreme Court denied a request from a group of reporters for the audio of the opinion announcement in the travel ban case, Trump v. Hawaii, to be released early.
Kennedy has moved on to talking about Chevron deference.
Sen. Harris is up.

She asks if he's discussed Mueller with anyone? Then, she asks specifically about the Kasowitz firm.

Kavanaugh: "I'm not remembering."
Lee raises an objection. Says law firms have lots of people at them — and then is interrupted by a protester — but then continues to say there's a lot of people at firms.
Harris: "Have you had any discussion with anyone ever about Bob Mueller or his investigation?"

Kavanaugh: "I've talked to fellow judges."

H: "Anyone else?"

K: "The fact that it's ongoing, it's in the news, yes."
Harris: "Did you talk with anyone at Kasowitz Benson and Torres about the Mueller investigation?"

Kavanaugh says he doesn't know everyone who works there so he couldn't answer.
Paging the staff of Sen. @KamalaHarris. I'd sure like to know what all of that was about. Thanks.
NOTE: Today's hearing began 12 hours ago.
Harris asks about Griswold and Eisenstadt.

He talks about the court and Pierce and Meyer.

She says she's asking what he thinks.

He continues talking about the cases.

Eventually: "I think Justice White's concurrence is a persuasive opinion. ... I have no quarrel with it."
Then, on a woman's right to terminate a pregnancy, he demurs, going back to his unwillingness to answer that.

Harris then asks if there are any laws that give the gov't power to make decisions about a male body?

He says he can't think of any.
Here's that oddly unresolved Harris/Kavanaugh exchange on Mueller's investigation and Kasowitz —>
"I do follow election law blogs," Kavanaugh says.

Cc: @rickhasen, author of "Election Law Blog."

electionlawblog.org
Tillis is up. (My goodness. I thought we were done.)
Tillis: "Are you Judge Kozinski?"

So, you can see where this is at.
Tillis is ignoring all of the other work that Kavanaugh and Kozinski did together since, including working to vet Kennedy's clerks and the fact that Kozinski introduced Kavanaugh at his confirmation hearing.

He then said that Democrats should be asking Paul Watford questions.
Tillis is now asking about opinions when Kavanaugh ruled in ways he didn’t like: for Hamdan, for Emily’s List, against the RNC, against Sec. Rice ...
Tillis says that some people are concerned about Kavanaugh’s views on LGBT issues but says that Kavanaugh while in the White House counsel’s office ... once attended a meeting to talk to Log Cabin Republicans. So, OK?
And, at 10:08p, we recess for the night.

The committee will be back for a 20-minute round at 9:30a.
Hope you all enjoyed that 13-hour thread! 😂 👋
Update on that Harris line of questioning about whether Kavanaugh talked w/ a Kasowitz firm lawyer about Mueller's investigation. —> A Democratic aide tells me that they "have reason to believe" that a conversation happened and they "are continuing to pursue it."
So, it sure sounds like the reason why that line of questioning didn't go any further tonight is that they couldn't take it any further, or at least weren't ready to do so.
I wrote up what we know about that Harris-Kavanaugh exchange, and then started a new thread to talk about about what I think was so weird about it beyond what we know. Check it out here —>
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