It's day two of the Kavanaugh hearings. I'll be livetweeting in this thread, so please feel free to mute it if necessary.
Today is the Q&A portion. What will senators ask the prospective justice? Some questions from me: newrepublic.com/article/150678…
And from law professors: newrepublic.com/article/151024…
And from law professors: newrepublic.com/article/151024…
Grassley says each senator will get 30 minutes of time for questions in the first round. There are 21 senators on the committee. It's going to be a long day.
Grassley: What makes a good judge, and what influences have shaped your life?
Brett: Independence and backbone. Cites Youngstown, Brown v. Board, and U.S. v. Nixon, which he says he's identified as one of the court's greatest decisions.
Brett: Independence and backbone. Cites Youngstown, Brown v. Board, and U.S. v. Nixon, which he says he's identified as one of the court's greatest decisions.
U.S. v. Nixon is the Watergate tapes case. Kav will likely face questions about it from Dems for comments he made in 1999: apnews.com/3ea406469d344d…
Kavanaugh says he wants both sides to come away from decisions saying he gave them a fair shake.
Grassley in a separation-of-powers question: "No one, not even the president, is above the law."
Kavanaugh: "No one is above the law in our constitutional system." Cites Federalist 69.
Protesters are periodically interrupting Kavanaugh's answers. Grassley: "Let these people have their free speech" and interrupt the other 300 million people watching.
Kavanaugh says nobody asked him how he would rule in specific cases, including Roe v. Wade.
Kavanaugh: "The role of precedent is to ensure stability in the law." Also cites predictability and reliability interests.
Kavanaugh: "This moment is a moment of judicial independence—how I interact with the committee."
Kavanaugh: "As Justice Ginsburg said, no hints, no forecasts, no previews." Also cites Kagan's formulation on past cases: "No thumbs up, no thumbs down."
Feinstein is up. Says she'll ask about guns and Roe v. Wade.
Feinstein's first questions are on whether assault weapons are considered to be in common use. Kavanaugh argued in a 2011 dissent that they were: npr.org/2018/07/23/630…
Kavanaugh says he had to follow the precedent of the Supreme Court. Feinstein: "How do you reconcile that" with hundreds of school shootings that have taken place?
Feinstein asks Kav whether he agrees with O'Connor's assessment of reproductive rights on a woman's life. Kav doesn't say and instead describes its impact on Roe and Casey.
Kavanaugh: "As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade."
Asked whether Roe is "settled law," Kavanaugh says it's "settled as a precedent of the Supreme Court entitled to respect under stare decisis."
"I understand how passionate and how deeply people feel about this issue," Kavanaugh says on abortion rights. "I don't live in a bubble."
Feinstein: Have your views on it changed since the Bush White House? Kavanaugh doesn't say, instead returns to a descriptive answer on Roe and Casey's holdings.
Feinstein: What would you say your position is today on a woman's right to choose? Kav: It's an important precedent of the Supreme Court.
Feinstein: What are the circumstances in which a sitting president could be subject to criminal investigation?
Kavanaugh is reviewing his history of writings on this subject, including his turn towards more deference to the presidency. "What changed was September 11th."
Kav on his 2009 Minnesota Law Review article: "They were ideas for Congress to consider. They were not my constitutional views."
Feinstein: Was U.S. v. Nixon wrongly decided? Kavanaugh: That quote is not in context, it's a misunderstanding of my position.
Kavanaugh: "I have repeatedly called U.S. v. Nixon one of the four greatest moments in Supreme Court history."
On whether a president can be subpoenaed by a grand jury, Kavanaugh invokes the "Ginsburg standard" to decline to answer the hypothetical.
I don't have hard numbers on this, but I strongly suspect that Kavanaugh's most used phrase today is "judicial independence."
Hatch: What sort of loyalty will you owe to the president if confirmed? Kavanaugh: "I owe my loyalty to the Constitution."
Hatch: What role did you play in creating the Bush admin's detention policies? Kav says the policies were "controversial," he wasn't read into the program or involved in crafting it.
The Feinstein report that Hatch and Kavanaugh are discussing is the CIA torture report when she ran Senate Intel: newyorker.com/magazine/2015/…
Hatch: Did you mislead this committee in 2006 about your involvement in detainee policy? Kav: "I told the truth, the whole truth" about involvement. (Dems have revived this allegation in recent months.)
Kavanaugh's supporters have frequently touted his record here:
Hatch moves on to Alex Kozinski, a Ninth Circuit judge who resigned last year over sexual harassment allegations. Kavanaugh clerked for him in 1991-1992.
Hatch: Did you know anything about these allegations before they became public? Kavanaugh: "Nothing." Says his first thought was no women should be subjected to sexual harassment.
For context here, it's worth reading @Dahlialithwick on Kozinski: slate.com/articles/news_…
Hatch moves on to the Chevron doctrine, which sets out when courts defer to agencies on their own powers. Kavanaugh says exec branch too often relies on old laws to justify new policies. Cites environmental laws and national security in particular.
Kavanaugh: "I am not a skeptic of regulation at all. I"m a skeptical of unauthorized regulation, of illegal regulation" beyond the bounds of what the law authorizes.
Some context on Kavanaugh, Chevron, and environmental law from SCOTUSblog: scotusblog.com/2018/07/kavana…
Leahy is up now. He starts with Kavanaugh's 2006 testimony, which is still a sore spot with Dems on the committee.
Leahy is quizzing Kavanaugh about his knowledge of the Manuel Miranda escapade in 2004. Kavanaugh isn't answering right away, reviewing some emails just given to him. Context: articles.latimes.com/2004/mar/05/na…
"I don't really have a specific recollection of this," Kavanaugh tells Leahy after reviewing one of the emails in question.
To recap: Leahy is asking whether Kav used or knew about hacked Senate Dem emails relating to Bush judicial nominees. Dems didn't preview this yesterday, and Kav seems caught off-guard by the line of Qs.
Unhappy is an understatement.
Leahy shows a clip of Kavanaugh's D.C. Circuit confirmation hearing where he denies prior knowledge of a Bush warrantless wiretapping program known as TSP. First use of video in a SCOTUS hearing.
Leahy: Did you ever work with John Yoo on the constitutionality of any warrantless surveillance program? Kav says he can't rule anything out, citing post-9/11 chaos.
We're seeing a clear downside now for Senate GOP approach on records: Kavanaugh seems hesitant to give firm answers on Leahy's questions since he doesn't know what exactly is in his old emails either.
Kavanaugh: "The question of self-pardons is something I've never analyzed." Says it's hypothetical and therefore he can't answer.
Leahy: Can the president pardon someone in exchange for not testifying against them? Kavanaugh says again he won't answer the hypothetical.
Graham asks Kavanaugh about the viral moment y'day where he didn't shake a Parkland father's hand. Kavanaugh says he understands his rulings have real-world impacts. "I don't live in a bubble."
Kavanaugh acknowledges he was a registered Republican. (Not surprising, since he worked in the Bush 43 White House.) Graham notes Kagan said she had been a Democrat, too.
Graham on partisan SCOTUS confirmation hearings: "What kind of country have we become?"
That's it for the morning session. There'll be a 30-minute break, then questioning begins again.
And we're back! Durbin is up, with some questions about Kavanaugh's document process.
Kavanaugh says he "wasn't involved" in the documents process, says he can't comment on Durbin's assertion that he's receiving special treatment.
Kavanaugh cites Scalia's confirmation hearing as precedent, saying that records are a matter between the executive and the legislative branch.
Durbin: Why aren't you asking the committee to delay your nomination to avoid a cloud or shadow over it? Kavanaugh cites nominee precedent before Grassley interjects to defend the records process.
Durbin: "I want to talk to you about the 2006 testimony you gave before this committee."
Durbin's been waiting for this for more than a decade. He even brought a poster of Kavanaugh's prior testimony. 
Kavanaugh: "I understand the question now and the answer now to be 100 percent accurate."
Kavanaugh tells Durbin that there was a "good deal of internal debate" on the WH signing statement w/r/t McCain's torture amendment in 2005. Repeats that he told the truth about his involvement in 2006.
Durbin switches gears to Garza v. Hargan, the DC Circuit case involving an undocumented minor who sought an abortion last year. Kavanaugh dissented from the court's decision to allow it.
Durbin: Do you believe this was an abortion on demand? Kavanaugh notes that Jane Doe was a minor, so he draws on the parental-consent line of cases. Durbin says he was trying to impose new requirements, which Kav denies.
Kavanaugh: "I did my level best in an emergency posture. I did my best to follow precedent, as I always try to do when following the precedent of the Supreme Court."
Durbin, referring to his former job in a slaughterhouse: "The things I did were unimaginable and I wouldn't even start to repeat them."
I got pulled away and missed whatever Durbin said after that, alas. Cornyn is now up and he's asking Kavanaugh about religious-freedom cases.
Protesters are back after a brief lull before the midday break.
Kavanaugh quibbles with both parts of Jackson's famous "infallible because we are final" line. "I never want to think of the court as infallible," he says, adding that the people can override the court by amending the Constitution.
Kavanaugh describes Brown v. Board of Education as the "single greatest moment in Supreme Court history." Sharp contrast with how some recent Trump judicial nominees have flubbed Brown-related questions: blogs.edweek.org/edweek/school_…
Whitehouse is questioning Kavanaugh on executive-privilege claims, holding up some of Kav's records that simply say "constitutional privilege" on them.
Kavanaugh notes from his own experience that formal assertions of privilege usually follow subpoenas. Whitehouse agrees, noting that his inability to get them is "bollocksing up" the process.
Whitehouse is questioning Kavanaugh about the Federalist Society and Leonard Leo's role in his nomination. "I don't know the specifics," Kav replies.
Whitehouse previewed this line of questions yesterday by drawing connections between FedSoc, the Judicial Crisis Network, and dark-money donors. Kavanaugh is professing ignorance so far.
FedSoc and Leo's role isn't really a big secret. Toobin even had a big New Yorker piece about it last year related to Gorsuch's nomination: newyorker.com/magazine/2017/…
Whitehouse: Shouldn't we know who's running these ads for and against you? Kavanaugh: "I think that's a policy question" for Congress on disclosure reqs.
Whitehouse suggests that SCOTUS should expand its disclosure requirements for amicus briefs.
Whitehouse's line of Qs summarize a lot of liberal concerns about the conservative legal movement and the Roberts Court. But they also don't really involve Kav himself, so they're pretty easy for him to not answer.
Lee: Did anyone from FedSoc contact you about the vacancy after Kennedy's announcement? Kavanaugh: No.
Lee: Were you named on Trump's two lists during the campaign? Kav: No. (He was added last year.)
Lee: Were you named on Trump's two lists during the campaign? Kav: No. (He was added last year.)
Lee: Do you have a favorite among the Federalist Papers? Kavanaugh: "I like a lot of Federalist Papers." Cites Nos. 78, 69, 10, 37, 39, 47, and 51. (There are 85 of them.)
Lee says the committee will take a ten-minute recess. I'll spend the entire time pondering which of the Federalist Papers is my personal favorite.
The committee is back and Klobuchar is up next. (My vote is Federalists 18 through 20, for the record.)
Klobuchar, re: the CFPB case: Do you think Humphrey's Executor was correctly decided?
Kavanaugh: "It's a precedent of the Supreme Court and has been reaffirmed many times."
Kavanaugh: "It's a precedent of the Supreme Court and has been reaffirmed many times."
This back-and-forth is about Kav's 2016 ruling that the CFPB director's for-cause protection was unconstitutional. Kav notes that he declined to strike down the CFPB in its entirety, even though another member of the panel wanted to.
The entire D.C. Circuit overturned Kav's panel ruling earlier this year and upheld the for-cause requirement. Some context on why this case drew so much attention: scotusblog.com/2018/08/kavana…
Klobuchar moves on to a 2002 WH email in which Kavanaugh suggested the individual-contribution limit might violate the First Amendment. Context: cnn.com/2018/08/31/pol…
Kavanaugh replies that the laws and precedents have changed since he wrote that email. He also notes he's upheld individual limits in two cases on the DC Circuit.
Coons is using his time to explore Kavanaugh's views on executive power. Kav is emphasizing he's never weighed in on constitutionality of indicting or subpoenaing a president.
Blumenthal asks Kavanaugh whether he'll recuse himself from Trump and Mueller-related cases. Kavanaugh declines to make any commitment.
An explicit Saturday Night Massacre comparison to Mueller’s hypothetical firing:
Hirono is up. She's focusing on sexual harassment in the judiciary, especially related to former judge Alex Kozinski. (Kavanaugh clerked for him in the early 1990s.)
Hirono: "Were you aware of allegations of domestic violence before you recommended Rob Porter for staff secretary?"
Kav: "No." He also seems to dispute her premise that he recommended him for the job.
Kav: "No." He also seems to dispute her premise that he recommended him for the job.
Lost my C-SPAN connection briefly during this part, but for the record:
Hirono spent the last few minutes reviewing Kavanaugh's record on native Hawaiian issues, including a 1999 WSJ op-ed titled "Are Hawaiians Indians? The Justice Department Thinks So"
Hirono isn't really giving Kavanaugh a chance to respond on that or now on abortion cases, making it somewhat difficult to summarize in this thread. She's clearly not a fan of his approach on either matters, though.
Missed a lot while I was commuting home. Harris is asking him about his use of the term "racial spoils system" in the 1999 WSJ op-ed that Hirono mentioned earlier.
Harris quotes contemporary uses of the term by white supremacists. "I take your point and I appreciate it," Kavanaugh says as they move on.
Harris: Do you personally agree with Griswold and other contraception cases was correctly decided? Kavanaugh eventually says he agrees with Roberts and Alito's statements saying such.
Harris is perhaps Kavanaugh's most effective Democratic questioner yet. Patient but direct.
Harris: "Can you think of any laws that give the government the power to make decisions about the male body?" Kavanaugh: "I'm not thinking of any right now, senator."
Harris: Five justices, if in agreement, can overrule any precedent, correct? Kav: There are times, but there are conditions that make it rare.
Kavanaugh tells Harris that he follows "election law blogs" to keep up-to-date on developments. (cc @RickHasen)
@rickhasen Kavanaugh says he has "no basis" to view Section 2 of the Voting Rights Act as constitutionally suspect.
@rickhasen Tillis says he finds it "particularly insulting" when other senators don't give him a chance to respond to incendiary questions. Tillis: "Are you Judge Kozinski?" Kav: "No."
@rickhasen Wow. Tillis: "We had a member in the U.S. Senate faced with a number of allegations of women," referencing Franken and some Dems' response to it.
@rickhasen Tillis wraps up the hearing, bringing 12.5 hours of questions to an end. Only 11.5 hours to go until it begins again!
