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Get your Kavanaugh confirmation hearing updates here. #day2…
Lindsey Graham: If there were a challenge to Roe v. Wade, would you listen to both sides?

Kavanaugh: I always listen to both sides, senator.

Sure, that settles it.
Kavanaugh seems to think that saying "the Ginsburg rule" magically gets him off the hook.

Yes, RBG said no hints, no forecasts, no previews during her confirmation hearing.

But she didn't dodge legitimate questions about settled precedent by claiming they were "hypothetical."
ICYMI when @SenFeinstein questioned Kavanaugh on Roe v. Wade, he took approx 2 hours just to say ... that Roe had been reaffirmed by Planned Parenthood v. Casey.

Contra Kavanaugh's claim he can't offer any hints or forecasts, his fondness for bringing up Casey does just that.
Casey qualified Roe by creating the "undue burden" standard.

Under Casey, states get to regulate abortion so long as they do not impose an "undue burden" on women's exercise of that right.

Guess how Kavanaugh will weaponize Casey?
On the road to overturning Roe, Kavanaugh would use Casey to let red states impose restrictions that would functionally end access to abortion.

How do we know this? He told us.
In Garza, the D.C. Circuit--all judges--decided the gov't couldn't block an unaccompanied minor from getting an abortion just bc she was in a federally funded shelter.

Kavanaugh called that a “radical extension of SCOTUS's abortion jurisprudence" & "abortion on demand."
Kavanaugh didn't think it was an undue burden to force the teen to remain pregnant until transferred to her immigration sponsor.

“[T]he gov't has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.”
Friends, simply not blocking a woman from exercising her constitutional right to abortion is *not* "facilitating" abortion.

Note also that the gov't slapped that policy together. A Trumpian whim. Yet Kavanaugh still would have favored it over the minor's rights.
If being forced to remain pregnant & being physically restricted from seeking abortion isn't an "undue burden," what is?

If Kavanaugh's confirmed, states will have free rein to eliminate abortion access via increasingly draconian laws.…
But back to the hearing. @SenatorLeahy was fantastic this morning.

Kavanaugh seemed to have similar trouble answering @SenFeinstein's questions about subpoening the president.

@SenatorDurbin is grilling Kavanaugh on Garza right now, and Kavanaugh is simply ignoring clarifying questions. Yet he's used the word "specifically" multiple times.
Shorter BK:

When I blocked her from an abortion, I specifically wrote that it was a shitty situation! I specifically looked at the length of the pregnancy! I specifically said the gov't couldn't block her from abortion entirely (yet)! I specifically said it must've been scary!
@SenatorDurbin takes Kavanaugh to task over a dodgy dissent in a labor decision.

BK bypassed the National Labor Relations Act to argue that undocumented immigrants being abused by a company could be blocked from unionizing.…
"I have no agenda in any direction," Kavanaugh claims. "I'm just a judge."

"The fact that you were a dissenter and *everyone else* [other courts] went the other way should give you cause if you care about precedent," replied @SenatorDurbin.
@DavidLat, on point as always, linking the SCOTUS case Kavanaugh butchered to dissent.
Here we go: @JohnCornyn is giving Kavanaugh a religious liberty softball. BK lauds Trinity Lutheran among other SCOTUS cases.

He's being careful, but also clearly confirming he's on board w/R's distorted version of that concept to permit discrimination.…
When Cornyn asked Kavanaugh if he has "Republican blood running in his veins," BK has trouble--literal speech trouble.

As a judge, "I'm not a Rep-Republican...."
ICYMI: @TPM's longer take on Kavanaugh's struggle to answer @SenatorLeahy's questions about emails stolen from his office.

Kavanaugh was rattled. @SenatorLeahy put him on the defensive by alluding to additional evidence of Kavanaugh's involvement.…
Cornyn seems to think that because Kavanaugh ruled for Osama bin Laden's driver he can't possibly be an enemy of the little guy. Which…
It's @SenWhitehouse now, and I have high hopes.
"Is it still true you cannot offer any assurance that you wouldn't rule against a statute preventing insurance companies from discriminating on the basis of pre-existing conditions?"

Whitehouse asks Kavanaugh 3 times to just answer the question. Kavanaugh is being an ass.
Short version:
K: So I went back--
W: I just want an answer.
K: I want you to understand it.
W: I'm capable of understanding it.
K: I want everyone to understand it.
K launches back into spiel about not answering questions.
W: You said this before.
Whitehouse holds up paper with "privilege" emblazoned across it. Presses Kavanaugh on exercise of exec privilege re docs.

Kavanaugh babbles along about protections 'til Whitehouse cuts him off: "That's why not being able to get a subpoena bollocks up the process."

Whitehouse is trying to get Kavanaugh to respond about Federalist Society involvement in his nomination.

Kavanaugh is using a tactic he's used throughout: He begins describing events in detail very slowly.

Whitehouse isn't having it.
"So you have no testimony to offer?"
"Your testimony is that you don't know anything about the role of the Federalist Society in your nomination?"

"What about Leonard Leo's role?"
"I don't know," he says. Then hastily adds, "I don't know specifics."
Kavanaugh knows he's lying.
Whitehouse has a poster showing the conservative donors behind The Federalist Society. Then he brings up the Judicial Crisis Network.

"I'd be willing to guess there's substantial overlap between the funders of the Federalist Society and the Judicial Crisis Network."
"Hypothetically, if there were major overlap between the special interest donors to the Federalist Society and the dark money groups promoting your confirmation, should people be concerned?"

Kavanaugh takes off on tangent about how his family's seen ads against him.
"Should we citizens know who's funding [Kavanaugh] ads?"

Kavanaugh says it's a question for Congress and searches for words about Congress.
Whitehouse turns to Pacific Legal Foundation, a conservative litigation factory, which hires clients to bring cases.

He asks if organizations like this are cause for concern.

Kavanaugh: These organizations exist, let me tell you about how they exist in detail.
"Do you have any concerns about the optics of organizations and companies using these tactics, bringing cases to deliberately lose to get before a friendly court?"

Kavanaugh: Daisies are my favorite flower.
Protester 1: Sham!

Protester 2: We cannot go back!

Kavanaugh looks like he wants to hide under the table.
Whitehouse: The Supreme Court has decided as many as 80 cases on political lines under Roberts.

If you look behind these cases you see the same special interests and amici. They have won 92 percent of the time.

Comparison: Gorsuch's ruled for them 91 percent of the time.
Kavanaugh: I consider the legal arguments in amici, not the identities.

Then he just starts talking about the team of nine concept again.

Four protesters total during just Whitehouse's question period.
There have been at least 37 arrests in the Capitol today.

Yesterday, there were 70.
People have said Mike Lee was a strong contender for a Supreme Court nomination.

As of today, I'm more confused by that notion than ever.
Mike Lee: Do you have a favorite among the Federalist Papers?

Kavanaugh: I like a lot of Federalist Papers!

Proceeds to recite Federalist Papers for an hour.

CSPAN cut to Whitehouse leaning over to Klobuchar with a look that's somehow both mischievous and exasperated.
Here's video of Kavanaugh dancing around the Q on of whether POTUS can be investigated. He says no bc part of exec.

Independent counsel and special counsel are different, but his beef is w/the exec solely investigating president--that applies to both.…
It's @amyklobuchar and it's going to be good.

"Do you personally have a problem with your executive branch papers being released?"

"It's not my job, let me list all the people whose jobs it is, and I am not one of them."
"Is there anything in those documents you think would be relevant?"

[word mush]

"Do you think a good judge would grant a continuance to someone who received 42,000 documents the night before trial?"

"That's a decision for the committee, and I'm not familiar..."
Klobuchar is trying to get Kavanaugh to define what presidential act would be "dastardly," grills him on his article suggesting POTUS cannot be investigated.

Kavanaugh just keeps saying he didn't take a position on the constitutionality; it's just an idea!
"You wrote that POTUS can refuse to enforce a statute he thinks is unconstitutional even if a court has said it is constitutional.

Is your position that the president can ignore the law unless told to enforce it or that he can ignore it even if a court tells him to enforce it?"
Kavanaugh likens a president refusing to enforce a law to a prosecutor exercising prosecutorial discretion.

That's not how it works.

The Take Care Clause of the Constitution directs that POTUS must "take care that the laws be faithfully executed."
Klobuchar: So, you don't think the CFPB should exist.

Kavanaugh: No, no ... I just said that the single head of CFPB should be removable at will.

Klobuchar: And other agencies?

Kavanaugh begins listing agencies and citing an 80-year-old decision.
"So, the White House bragged about how you have ruled against federal agency actions more than 70 times..."

"I don't know what that's referring to. I've ruled for agencies dozens and dozens and dozens of times. I've ruled for both sides. Etc."
Klobuchar goes in on Chevron, which says cts should uphold agencies' reasonable interpretations of ambiguous laws. Kennedy criticized it; Kavanaugh presumably also opposes it.

What would he replace it with?

Kavanaugh begins summarizing articles.…
In an email, Kavanaugh said he found constitutional problems with campaign $ limits. He seems to favor permitting unlimited foreign contributions.

So Klobuchar questions him.

He just begins talking abut times he upheld contribution limits and naming relevant SCOTUS cases.
"You've rejected challenges to mergers that other judges found anti-competitive. You invented a pricing test in one case. Where'd you get that?"

"I was following another judge's reasoning. It was very fact-specific." Then begins summarizing the case.

Follow-up: More waffling.
Yup, he's going to answer every question about his merger cases by saying they're very fact-specific and listing every fact he can remember.
ICYMI, @SenatorLeahy's statement on Kavanaugh and the emails stolen from his office. You want to read it.…
Cruz is back. I knew he would be, but it's still unpleasant.

They're having a smarmfest.

Like most of the Rs, Cruz seems content to let Kavanaugh meander along verbally.
Back to Leahy's statement, because it's gold.

Kavanaugh lied under oath, and there's proof.
Cruz and Kavanaugh are throwing red meat to the base.

"Religious liberty is critical to 1A and the U.S. Constitution."

Walking a fine line, they're describing religious liberty as a + right people can exercise against others versus - right to be protected from others.
@ChrisCoons back to Kavanaugh's desire to overturn Morrison v. Olson, in which SCOTUS upheld the Independent Counsel Act.

It's definitely significant that when asked if there was one decision he'd overturn he went to Morrison. Not Korematsu, Morrison.…
Kavanaugh won't say Humphrey's Executor, concerning the president's power to remove officials, was well-decided. Marbury v. Madison, sure. Not Humphrey's Executor.


Because he's all about expanding executive power.
Coons isn't having any more luck than Klobuchar getting Kavanaugh to admit he still believes the president cannot be investigated, special counsel can be fired at will by POTUS.

Reminder: Trump's banking on Kavanaugh's position re: indictment.…
Kavanaugh: Don't worry, I have proof I once changed my mind.
Coons has managed to get Kavanaugh's back up.

Kavanaugh snaps, "I've repeated myself 10 times."

That's on you, boo. We'd all like you to stop repeating yourself and answer questions.
@SenSasse is almost as painful to listen to as Kavanaugh, who is currently listing all the differences between the presidency and a monarchy.

He started by quoting protesters and saying, with chest puffed out, he'd never vote for Kavanaugh either if he thought they were right.
@SenSasse really seems to think he's a lawyer, which may be why he really liked talking about how he's not a lawyer then asked questions he said lawyers told him not to answer.

He's asked more legal questions than some of the lawyers who have questioned him so far.
@SenBlumenthal is going after Kavanaugh for Garza once more. Kavanaugh's wriggling again, repeating himself.

Next: When did your name get added to the list of potential Supreme Court nominees?

"His litmus test was that the nominee would overturn Roe v. Wade." True? Waffling.
"What happened between May and December of 2017 other than your (anti-abortion) Garza dissent to get your name on that list?"
About that dissent in Garza, says @SenBlumenthal, you use "abortion on demand" three times.

That's a far-right, anti-abortion code word also used by Scalia & co. in dissents.
Kavanaugh also referred to Roe as "current constitutional precedent."

That's like introducing your wife as you current wife.
Blumenthal's calling Kavanaugh's Garza dissent an audition for Supreme Court nomination.

Kavanaugh is just detailing all the points of his dissent that aren't hideously cruel.
Blumenthal pressed: Could Roe v. Wade be overturned?

"Eight justices currently sitting on this court haven't answered these questions before..."

If you took a shot every time he said it, you'd be in hospital.
Okay, stepping away for an interview with the amazing @Newsy but back oh so very soon. Also, check me out on Newsy.
And I get to return to brilliance. Excellent point.
Well, @MikeCrapo is just giving Brett Kavanaugh a blank check to talk about every case these white men think makes him look like he hates women less, etc.
Crapo just called Merrick Garland Merrick Garlic. That is all.
This is not a reassuring reply: Our system is not currently holding.
So @nycsouthpaw and I agree on the inconsistency of Kavanaugh's reticence. Also seen in his reply re: Marbury v. Madison versus Humphrey's Executor.
No words for how sad I am to have missed Mazie, but @maziehirono did not disappoint. At. All.

Okay, just one more on this topic, because FFS.
Apparently @maziehirono put a map up. Just wow.
@ChuckGrassley is setting Kavanaugh up for a vague assurance that he could rule against the president who appointed him.

He's not really even doing that, just wandering through the Federalist Papers.
Side note: I do not love Kavanaugh's rhetorical questions that he then answers and my mind is boggled at the prospect of students who enjoyed listening to him.
Hell, yes. It's @CoryBooker, and he is not playing.

Hitting him with Scalia's "one race" claim.

"Do you agree with Scalia that it is never permissible to consider race to try to mitigate past discrimination and achieve justice?"

"Well, it was just for a client..."
Fact-check from Booker:

"You mention Scalia's one race theory frequently. Do you think that all efforts by racial groups to seek remedy for past discrimination are impermissible?"
"So you disagree with Scalia that it is never permissible to use race to attempt to remedy past injustices?"

Kavanaugh starts several times with an effort at listing precedent, saying it's not precedent, then just more pablum.
Booker presses him.

"There are a couple things that SCOTUS has cited in its case law..."

"I know the case law."
Kavanaugh just keeps saying "precedent."

Booker: "I know, you've mentioned that with a lot of my colleagues. I want your opinions."
Kavanaugh is back to the 8 justices not having answered these questions thing.

Booker is *shredding* him. "The distinction is, none of them had expressed personal opinions about these topics."

My question is, "do you still think a diverse student body is a compelling interest?"
Booker is reading Kavanaugh being racist to Kavanaugh, who is racist, and he suddenly doesn't have the prodigious memory he's been displaying 90 percent of the time.
Kennedy wants to pause so Kavanaugh can be provided the documents so he'll know what Booker is talking about.

Kennedy, who's among the Republicans who don't even want the committee to have the documents on Kavanaugh so they'll know what they're talking about.
The nearest place to the interview where I could keep working was a gay bar that offers free popcorn. It's me, Brett Kavanaugh, and fifteen bears. I wouldn't have it any other way.
Shorter Booker: You won't let universities use race, but you will let police use it.

Booker is closing out with voting rights--voter ID laws, etc.

"You're more likely to be struck by lightning than you are to find voter fraud in person."
"Couldn't you see that [voter ID law] would cause a reasonable impediment?"

"The people who enacted this law created a second class of voters, who didn't have an ID, who had to go fill out paperwork, have an atty, then cast a provisional ballot that may not have counted at all."
Office right now. Not pictured: Fifteen bears.
Boy, why is Kavanaugh's attempt to tell @CoryBooker how great he is for minority hiring the most racially fraught thing out of his mouth all day?

It's the jurist's "I have black friends" permeated with the total rejection of any possibility white men are the problem.
Sign #20935 that Kavanaugh has race issues: He replied entirely in terms of African-American clerks. We Latinx folx also exist.
@SenatorLee_cmc jumps in to claim that it's impermissible to question Kavanaugh about committee confidential emails because--how can he answer if he doesn't see it?

How can senators question him if they can't see his record?
@SenJohnKennedy just wants to go home at this point. Unfortunately he's chair for now.
"Sometimes the majority just means that you have a bunch of fools on the same side."

So true, Senator Kennedy, so true.
Oh, so Kennedy is asking about audio and video.

Kavanaugh's again just listing information about the progression of audio availability at his court.

He uses "team of nine" for the 200th time.
"Are u willing to overturn precedent that u think conflicts w/the original understanding of the doc?"

BK details SCOTUS test on overruling.

"No, you're on a case & you say I've looked at this & this is not originalism & what the public thought."

Kavanaugh resumes recitation.
Brett Kavanaugh's concentration face is really close to a constipation face.
Law school classmate on Facebook:

"If I knew Alex Kozinski was a shitbag, so did Brett Kavanaugh. Our Supreme Court nominee not only helped enable one of the judiciary's worst harassers, but just lied to Congress under oath."
Kennedy is right that just one federal judge can enjoin a law or regulation.

That's why asbestos is still legal in the United States even though we've known it causes cancer since the 1970s at least.

That's the way they want it.
It's so wrong that we have waited until 9:20 pm for Senator Harris.


"Have you discussed the Mueller investigation with anyone?"
"With other judges"
"What about with Cassowitz, Benson, and Torrez?"
"It's the firm founded by Torres, Trump's personal lawyer."
"Have you had a conversation with anyone about this law firm about the investigation."
"Is there a person?"
"You don't need to know a name, just the firm"
"I don't know everyone there"
"I don't rememb--"
"You're saying you don't rememberwhen you've testified before this committee for eight hours about all sorts of things you remember?"
"I'm just trying to think if I know anyone at that law firm." After having demanded repetition of the name.
Finally we get to, "I think you know you talked to someone and you don't want to say who it is."

Mike Lee goes NUTS and interrupts: "There are a lot of law firms! People belong to all sorts of firms!"
@SenMikeLee "I'm just saying he needs a list of people who work at that law firm so that he might be able to figure out who he could have talked to there."

@SenWhitehouse is ON IT.
"My point is that the rule is that no one on our side can make a point of order that it ought not be appropriate for Senator Lee to make a point of order given that the rationale was that we were in a hearing and not an executive session."
Mike Lee is no Chuck Grassley.
Whitehouse gets it back to Harris.

"Have you have a conversation with anyone about Bob Mueller or his investigation?"

"Well, I worked with Bob Mueller..."

"His investigation."

"So, Bob Mueller?"

He's literally repeating questions to stall for time.
It's almost 9:30 and this is the most important exchange of the day, hands down.

"I asked the question just a minute ago, I'm surprised you forgot."

Kavanaugh flounders.
He's refusing to answer the question, claiming he doesn't know everyone who works there.

This leaves @SenKamalaHarris the option to come up with a list for round two of questioning.
Harris asks Kavanaugh about a meeting they had.

"Yes, Senator, we did have a meeting, and it was..."

Are. You. Serious?
"Have you ever heard the term 'racial spoils system'?"

He struggles and struggles.

"You used that term multiple times in your WSJ oped that @maziehirono mentioned."
"Can you tell me what the term 'racial spoils system' means to you?"

"First, SCOTUS affirmed the decision...second, it was . . ."

"That's not what I asked you."

"But you raised the case! So I can totally go off on this tangent for ages describing every detail from memory!"
"My question is, you used this term twice...what does this term mean to you?"
"I'd have to see it. I don't know what I meant by it at the time. What I do know is..."
"Sir, I appreciate that, but you've been very forthcoming about the amount of work and preparation that go into everything you do. You've certainly given me the impression you pay a lot of attention to words...."
"I would like to know what you meant by this term? Are you aware that the term is commonly used by white supremacists?"

"I wrote that 20 years ago..."

"The year you wrote that there was a cover story on the racial spoils system [explaining all of this]."
"Do you believe Griswold...was properly decided?"

That's the ruling that said women have reproductive rights insofar as the use of contraceptions for the first time.

He's not answering. Obviously.
She presses. "Was it correctly decided?"

He just refers to precedent and talks about how persuasive various writings were. Even Scalia and Alito said that Griswold was correctly decided.

"Oh, okay, if Scalia and Alito said it, I agree."
"Do you believe the right of privacy protects a woman's right to end a presidency?"

"This gets to .... I'm following the 8 current justices in not answering anything pertaining to something that is before or could b before SCOTUS....Kagan said no thumbs up, no thumbs down."
"I am glad you mentioned RBG had written about Roe b4. Because you've also written about Roe, praising the dissent....Do u believe the privacy right protects the right to choose?"
"I have not articulated a position & there's nominee precedent I feel obligated to follow." ]
He can't come up with any decision in which courts have agreed the government can regulate the male body.
"Do you agree that the Supreme Court can reverse precedent with five votes?"

Kavanaugh is beyond tiresome. "But there's a series of steps..." On repeat.

"The Court is not prohibited from overruling precedent, no matter what the steps are."
"Do you believe this can happen no matter how long the precedent has been on the books--there's no statute of limitations?"

Kavanaugh begins describing Korematsu.

"You'd agree there's no statute of limitations?"

"What I would say is there is a series of conditions..." Again.
Oh, @SenKamalaHarris is heading for voting rights.

"I'm not aware of the specifics of all that but I do follow election law blogs and election law updates..."

Yessss. Brings up Randolph, GA. He claims he doesn't know it. That's BS.…
Harris brings up Shelby. He says Congress can always reformulate preclearance. She says, surely there has to be some recourse for those voters or else we're looking at widespread disenfranchisement--don't you agree?"

Kavanaugh begins describing the VRA.
We're 20 minutes past the latest projected end date and I am sleepy.
Best Kamala Harris line so far may be, "Did someone tell you to say that?"

She has been so, so good.
New fill-in chair is @SenThomTillis. He should be wrapping it up after 12.5 hours.

But no.

He's got to opine about the emails that Kavanaugh was asked abt.

There's a reason Kavanaugh doesn't have the emails he was asked about because they're "committee confidential."
"You were asked about Judge Kozinksi--I think you were a clerk for him about 27 years weren't allowed to answer. I've got to ask you, are you Judge Kozinski?"
Tillis: We've totally confirmed other people who've worked with Kozinski, so it's irrelevant unless we also send letters to every other judicial nominee who clerked for Kozinski.
Tillis is claiming that Kavanaugh is facing a double standard and I need whiskey.
Oh, Tom. He's going back to that time that Brett had feelings about who should be able to vote in Hawaii based on race.

Now Tom's asking a question about whose hugs are better, Margaret's or Eliza's.

I'm too angry.

A U.S. senator is asking about Kavanaugh's first date with his wife in re 9/11.
I guess this is Tillis wrapping up. Longest wrap-up ever. I don't even know if he was the chair for now or not. Or what's up.
Nope, feint.

"I have some wrap-up comments."
Thank God, we're done.

Tomorrow's 20-minute rounds starting at 9:30 am.

Join me then.
Sorry, one last note from when I finally gave in and ran to the bathroom (sorry for failing you).

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