Senators are milling about judiciary and things should be starting soon
Reminder: no good mornings for Grassley
Protesters start speaking over Grassley now. Sounds like a disability rights activist
Senators get 30 min rounds
Lunch break and 2 other 15 min break. First will happen after about 5 senators or so have asked their questions
Reminder this is the basis for the GOP saying we don't need to see Kavanaugh's White House documents
Quotes Bill Clinton attorney Bob Bennet's recommendation letter for Kavanaugh
What makes a judge a good one and what influenced you the most
Kavanaugh: Independence and independence comes directly from Article III and guaranteed by protection from life tenure and pay cuts
Someone reads his own press
First sports analogy by Kavanaugh. I expect a lot more as the week continues
Kavanaugh also says he's tried to always be a collegial judge.
Reminder: not being an asshole shouldn't be the floor for being a lifetime appointee to the Supreme Court
Like the Parkland parents? The father whose hand you refused to shake in introduction? Those real people?
Grassley scolds the audience: no-one is above the law.
Sir, please direct that statement to the witness
It's resisting political pressure, Kavanaugh says of judicial indepence
Reminder: SCOTUS held 5-4 in favor of Trump's Muslim ban
Kavanaugh says no.
Protester starts changing "Save Roe Vote No"
Tenthers feel so quaint and 2008
Kavanaugh says his personal beliefs don't matter.
Tell that to the Jane Doe and the other minors in Garza v Hargan
Again, I suggest y'all read his opinions in Garza v Hargan to see how he "applies" precedent like PP v. Casey
Ummm how about we don't?
Kavanaugh has said DC assault weapon ban was unconstitutional and violates the 2A because assault weapons are commonly used.
Feinstein asks Kavanaugh basically what the hell do you mean by that
Reminder: no it wasn't. Kavanaugh goes way beyond Heller here.
Kavanaugh pivots back to Heller to not really answer
"This is all about precedent for me" Kavanaugh says
You're saying the numbers determine use, Feinstein asks incredulously
All weapons are dangerous [LIKE SPOONS!]
The Supreme Court said machine guns can be banned, Kavanaugh says. This is somehow to help his case for how he respects precedent
Kavanaugh says nobody likes school shootings and want to do something about it. 🤷🏻♀️
Kavanaugh says he understands the precedent of Roe and Casey
Feinstein responds with data on deaths from illegal abortions.
Feinstein: What do you mean by settled law?
If confirmed Kavanaugh can unsettle that precedent
That's Kennedy's only pro-abortion rights vote before tagging along with the liberal wing in Whole Women's Health
Feinstein asks Kavanaugh if his views on Roe have changed since his time in the Bush White House. During that time Kavanaugh likely worked on the federal partial birth abortion ban
IOW Kavanaugh likely gamed a conservative response to attack abortion rights and Roe/Casey
Coincidentally that's when the Bush White House went extra-sidewise on things like torture, surveillance, and detention
Kavanaugh doesn't give a yes or no answer. Says its one of the greatest moments in SCOTUS history
Kavanaugh stammers: I've said yes, then walks that back by explaining it is tied to the specific regulations and facts of the case
So.... not good precedent Kavanaugh?
Then says he can't answer the 'hypothetical' because it's a hypothetical that could come before him
Hatch says people think Trump nominated Kavanaugh because he'd rule in Trump's favor.
Can you assure us you won't let Trump's views impact your decisions?
Kavanaugh says he's independent and whoever has the better law will be the winner before Kavanaugh
Kavanaugh says he owes loyalty to the constitution
This exchange is exactly why people hate these hearings and call them meaningless
Kavanaugh cites the Hamdan case [war on terror prosecution]
It's the only case he cites
Cannot wait to hear Leahy and Durbin's response when they are up
Kavanaugh insists he told the truth in his previous hearing
Hatch asks why Kavanaugh thinks its important to encourage young women lawyers
Kavanaugh says he believes in equality
Super excited for the time when equality isn't couched on a man's personal relationship with a woman
Kavanaugh said that made him think about what he could do about this problem
Hatch metaphorically slaps Kavanaugh on the back for this.
Then he pivots to Kozinski who left the 9th circuit because of harassment and abuse allegations. Kavanaugh clerked for Kozinski
Sure thing, Brent.
You know what also works? Class action lawsuits and not forcing these claims into mandatory arbitration
This is a line of precedent that directs the federal courts to defer to federal agency interpretation of the law if the law is ambiguous.
Conservatives are coming for Chevron. It might not survive this next SCOTUS term
Kavanaugh says this is an issue of "liberty"
What a racist shit show those were
It's already a tense exchange
Kavanaugh tries to filibuster and Leahy cuts him off
She's like Alito, by way of reference on temperament and philosophy
Leahy has Kavanaugh read through an email chain. Turns out the emails were stolen by a Republican staffer
This is solid prosecutorial questioning happening here
Kavanaugh gives the shruggy guy as his response
Kavanaugh asks if Leahy has such an email
Leahy says ask Grassley
Folks my money is on that email existing and this is how Leahy just got around confidentiality
Leahy just gave a master class here folks
That shuts Grassley up. Leahy not so much. Leahy says there is evidence to suggest Kavanaugh had stolen emails and new it, hints there's more proof in the committee confidential documents
Okay back to substantive coverage I just had to say that because that exchange was THE BEST
Kavanaugh responds by offering "context" and reiterating that he "wasn't read into that program"
Kavanaugh says "after 9-11 it was all hands on deck"
That's a yes folks
Grassley stammers and says if Leahy identifies the documents he can probably see them but the rest of us suckers can't
Grassley says Leahy can have them for tomorrow (maybe? that was a mumble and he is clearly not pleased)
Leahy asks Kavanaugh if Trump has the absolute power to pardon himself
Kavanaugh says dunno never thought about it
Kavanaugh refuses to answer
He's going to do all he can to get Kavanaugh's stride and confidence back.
Asks Kavanaugh if he knew about stolen emails and suddenly Kavanaugh is able to answer yes and no questions
Note Kavanaugh could have done that personally yesterday but chose to snub instead
This is just gross tbh. If I was a Parkland parent I would be FUMING right now
Graham wants to ask Kavanaugh about statements former Clinton attorney Greg Craig said about Elena Kagan
He's also confirming Kavanaugh is the fifth vote to kill/gut Roe and upend most the New Deal
Folks, I got nothing to add to this point 🤷🏻♀️
Kavanaugh's kids could have stayed. Should have stayed. It's democracy in action.
The point he's making is that there needs to be litigation in the pipeline.
Update: There are at least 13 cases right now in that pipeline!
That's the dumbest question yet.
Kavanaugh telling his evacuation story
Notes his wife was President Bush's personal aid at the time
Kavanaugh agrees the constitution protects Americans from their own government when they are abroad
Good dad. Good judge. Good husband Feinstein offers up. Elicits a chuckle from the room
Sen Durbin up now and goes directly to Kavanaugh's experience with judicial nomination.
Wants to know if Kavanaugh was involved in the decision to assert executive privilege to withhold documents related to his nomination
Kavanaugh doesn't answer directly
Durbin says the Senate is being asked to give Kavanaugh special treatment by the National Archives
Kavanaugh says dunno, man
Durbin isn't having it
Kavanaugh stammers and wants to know the question before him
Durbin says nope, you could change this at any time.
Durbin was also hacked by the GOP staffer whose emails Kavanaugh had
Kavanaugh says it's not his role to do so
Grassley now interrupts to try and redirect and give Kavanaugh cover tries to claim they are following the National Archives Act
Sorry. Fast typed that
I mean yeah of course it is faster to not turn anything over
Durbin says I'm sure you're prepared for this question
This directly contradicts this previous testimony Durbin says
Kavanaugh: I told the truth
Kavanaugh stammers an answer that is basically "I did a lot of things"
Durbin laying out all the legal hurdles the undocumented minor in Garza cleared before asking Kavanaugh why he'd block that legal process
Kavanaugh again offers a narrative answer instead of yes or no
Note: Rochelle Garza, one of the attorneys helping the minor [and others] access care is a scheduled witness against Kavanaugh
Durbin says yes and this patients already had a lawful judicial bypass so at this point it's not
This is a smart line of questioning to unpack Kavanaugh in Garza
That's the point of judicial bypass and and Kavanugh is intentionally erasing this fact
Cornyn is doing something very specific here though
Nothing of substance is happening here this is all about giving Kavanaugh some space to recover from Durbin
This is the kind of Schoolhouse Rock that Sen. Sasse says we need more of I guess
Cornyn pauses and then asks Kavanaugh to tell him about 9-11 because I guess he missed it when Graham had him do the same exact thing
Getting to the bottom of the important issues at the moment
Gorsuch also loves him some natural law
Is this signaling he DNGAF about public outcry over a Roe reversal? 🤔
His first question is would you uphold a statute that prevents insurance companies from discriminating on the basis of pre-existing conditions
Whitehouse wants a yes or no answer Kavanaugh offers to "enhance" it
But I think it's really important, Kavanaugh says
Notes that as a privilege it needs to be asserted
Who asserts executive privilege, Whitehouse asks
That's a complicated question, Kavanaugh responds
Kavanaugh says Trump made the decision to nominate him not The Federalist Society
So basically this is a yes?
We're still talking about dark money in politics and the courts
Apples and peanut butter
Now back to the Pacific Legal Foundation and related litigation mills
tl;dr they are terrible
Ex A: Alito did this with what would ultimately become the union busting Janus case
He's not wrong
The signaling on this is not good, Whitehouse says
Asks Kavanaugh about the documents withheld from his time as White House Staff Secretary
Klobuchar connects this to the DoJ taking the position that the pre-existing ban in the ACA is no longer good law thanks to the tax bill
That's Consumer Finance Protection Bureau
Kavanaugh says well we have precedent and I respect that
IE he wants to make these agencies explicitly partisan
I see your Federalist Papers cite and raise you one
Spoiler: Kavanaugh is against it
That means he's anti-precedent here too fwiw
Kavanaugh trying to paint himself as moderate on this issue
Klobuchar notes that his opinion left open the possibility of unlimited foreign contributions on *issues*
*cough NRA RUSSIA cough*
SCOTUS has made it harder to enforce anti-trust laws. This comes at a time of industry consolidation.
Klobuchar lists the Kavanaugh cases that would make this problem worse
Did you ever study the Guilded Age? The Robber Barons? That's what we're talking about here
What makes a good judge
Kavanaugh goes back to independence because you know we've gone down this path at least three times now
Yeah but that 7%? Cases like Garza v Hargan
which brings us back to the "overheated rhetoric" of the protesters and Senate Democrats amirite
Kavanaugh says that's someone who lets their personal political preference dictate their decisions
That was a quote from Cruz just now I swear
So... voting rights. Abortion. Just spitballing here but these seem like important federalism questions
Procedural due process means we all get the same process/treatment from the government.
Substantive tells us what those rights look like actualized in policy
Kavanaugh comes out as being in favor of protecting speech
Kavanaugh comes out against religious litmus tests for holding office
Whistles to Trinity Lutheran decision where the Roberts Court opened the doors for direct government funding of religious institutions
Kavanaugh pivots to crosses being knocked off public spaces in other countries
This is actually an interesting question
This is the Schoolhouse Rock civics lesson Sen. Sasse keeps talking about right?
Kavanaugh says he doesn't participate in political activity
Do you still believe a president can fire at will a prosecutor who is investigating him?
Kavanaugh declines to answer because it might come before him on the court
Kavanaugh: that was my view in 1998
Coons says his citation is factually correct but misleading in context
IOW Coons just called bullshit
Kavanaugh is uncomfortable but still maintaining a filibuster
Remember in earlier testimony about Kavanaugh's dissent in the CFPB case? The one that would make agency heads fireable at will ....
We can extrapolate from there
Remember there are Trump nominees not willing to say Brown v Board of Ed. was rightly decided. Kavanaugh has at least distinguished himself here
Coons asks what about if a presidential aid committed an act of domestic violence ......
Grassley gives it to him and then jumps in to help rehabilitate the witness
He returns to the theme of hysterical protesters
Going to walk through the difference between civil and criminal charges
Kavanaugh says no the question is whether the charges can and should be deferred to when the president is out of office
is that like a gerund? What is he even talking about here?
I don't think this question will play how Sasse tried to set it up
Will you recuse yourself, Blumenthal asks
Blumenthal says I will take this answer as a no
Blumenthal is not playing today y'all
Nov. 2017 another list. Kavanaugh's name was on that list.
Blumenthal: Trump said he would nominate a justice to overturn Roe
October 2017: Kavanaugh's decision in Garza v Hargan
So what changed, Blumenthal asks
Kavanaugh says a lot of things happened in between
Blumenthal notes that in that support those supporters cite his dissent in Garza
Also notes that he refers to Roe as "existing Supreme Court precedent" as though to suggest a qualifier
It doesn't sound like they'll be around for very long Blumenthal says
Other conservatives have argued that undocumented minors in government custody do not have this right
Reminder: Doe had already gone through a court approved judicial bypass proceeding. That is the legal equivalent of parental consent for her.
Kavanaugh basically confirms this
This is a guarantee he'll uphold any restriction under Casey and call it upholding precedent
Kavanaugh declines to answer, saying none of the other justices answered that question
Can the president refuse to enforce the ACA even though the SCOTUS has upheld the statute he asks?
"The reason some weapons are not in common use is because they are banned" referring to the expired assault weapons ban
My mom, Kavanaugh says
Justice Kennedy as a model of independence
Rehnquist and Jackson too
no surprises here folks
Again, this is a common anti-choice whistle on Roe too
Kavanaugh lists appropriations power, Senate advise and consent power, and impeachment power
This is like Day One of an executive power undergrad seminar
Yup gonna grab that beer
Reminder: Kavanaugh doesn't like it
How do you know if something is ambiguous Flake asks
Kavanaugh suggests that if people disagree it's because something is ambiguous and so we need objective standards
sliced tomatos with salt and pepper
Hirono brings up Alex Kozinski and the really terrible allegations that caused him to resign
I don't think this was a coincidence, Hirono says
Wonder what is in the committee confidential docs though
Kavnauagh said if he knew about Kozinski he would have reported it up
Kavanaugh says he didn't really recommend Porter, didn't know about the allegations
We all recognize that even if Roe isn't overturned there will be laws that attempt to limit a right to abortion, Hirono says
You turned this case into a parental consent case, which it wasn't Hirono says
Kavanaugh doesn't answer directly
He looked pained to acknowledge that fact
Also programming note I gotta jump out again real quick but will be back! Probably with a beer
Kavanaugh says this was aspirational
The point of Kavanaugh's 'one race' comment is along the lines of Roberts 'post racial' America
Kavanaugh won't say whether he agrees or disagrees on Scalia on this point
Kavanaugh won't answer
Kavanaugh doesn't answer directly
Booker asks if he still stands by those statements
Kavanaugh said I hired diverse clerks
Kavanaugh is disputing this characterization by Booker but Booker isn't letting it go
*SQUEEK SQUEEK SQUEEK*
And now for some reason Sen Lee is speaking
I am pro if only because I could cover hearings in yoga pants
Kidding I am pro because everyone should see the Court in action.
But also yoga pants
Gripping, probing line of questioning here
They can! Some states have their own abortion protections recognized in their constitutions but I don't think this is what Kennedy is referring to
Again, I don't think this is where Kennedy is going but should be noted
Errm okay cool
That's an interesting question, says Kavanaugh
Kavanaugh says well it's in the news
Harris drills down what about with anyone from Trump's lawyer's law firm?
Kavanaugh gets real nervous and asks if she has something
Harris has an email I'm sure of it
Lee jumps in to raise an objection
Harris is here for it
Harris for sure knows what she is doing here and Lee is going to try and derail her
Note: Lee is not Kavanaugh's counsel here
Have you had any conversations ever about Bob Mueller and his investigation Harris presses
Harris says Kavanaugh doesn't need a list to know if he talked to anyone about the investigation
Clearly you're not going to answer the question
Pivots to white supremacy
Kavanaugh doesn't answer
Kavanaugh doesn't answer
Kavanaugh still won't say they are correctly decided
Kavanaugh said he agrees with Alito but won't actually say the words "they were correctly decided"
Kavanaugh says he can't answer because it could come before the Court
Kavanaugh still refuses
Harris asks Kavanaugh as a factual matter whether 5 SCOTUS justices can overturn precedent
Kavanaugh cites Brown v Board so yes
Kavanaugh gives a long answer to: yes
Kavanaugh says well I don't have a basis for saying right now that it is unconstitutional, basically
Then says he's going to monologue on Kozinski
And now I think he's going to talk about Franken