Notable, given the attention paid to this and given that the White House was putting out constant fact checks all day yesterday like it was a debate, that there has been no White House statement on this exchange and no response to my request for comment.
A big sign I’ll be watching for will be whether Grassley starts off today by letting Kavanaugh attempt to clean this up.
The other big sign, obviously, will be whether Harris comes back to this — with any more info — today. That likely won’t come until the afternoon, though.
Follow @ZoeTillman, who is over on the Hill today for the hearing, although I’ll be watching along from the office — and on @AM2DM in a bit to talk about all of this.
We're starting today on the document debate. —>
Whitehouse follows up, saying the "committee confidential" decision was not a voted rule and he doesn't accept it. "This rule does not exist," he says.
"Court can always overrule its precedent" is actually the key there, IMO. That was certainly not the view Kavanaugh expressed yesterday at the hearing.
Durbin: "I want to understand how Bill Burck" gets to decide what's is treated as "committee confidential," akin to something classified or top secret. "He has no authority to do that."
Oh, Klobuchar is pulling out the Madison "farce or tragedy" quote. loc.gov/resource/mjm.2… 
This ... happened while I was on @AM2DM.
Kavanaugh makes clear, detailing DC Circuit's experience, that he is not opposed to — but is cautious about — live audio or even video of arguments, but is supportive of live audio or video of decision announcements.
And, here we are.
Here's @ZoeTillman on the backdrop to this move —> buzzfeednews.com/article/zoetil…
Hatch gives Kavanaugh the opportunity to follow up on the Kasowitz firm question from Harris, and Kavauagh said, "I haven't had any inappropriate conversations with anyone" about Mueller's investigation.
Here's that full clean-up answer from Kavanaugh this morning about whether he talked with anyone at the Kasowitz firm about Mueller. buzzfeednews.com/article/chrisg…
More on the Kasowitz question from Sen. Lee’s time —>
Bush lawyer responds to this morning’s move by Sen. Booker re: “committee confidential” documents.
"I look at Professor Hasen's Election Law Bog." - Kavanaugh says, explicitly naming @rickhasen and his blog (which he indirectly mentioned last night) as one he reads for its expertise
(I published a Hasen article back when I was editor of the Ohio State Law Journal in ‘04-‘05, so I am an old-school Hasen reader.)
Agreed!
Coons is talking about presidential power —>
Blumenthal is asking about whether Kavanaugh had any discussions about the special counsel with White House officials.
Kavanaugh sort of says no, but gave a hedging answer.
Blumenthal asks the Kasowitz question.
"I'm pretty confident the answer is no."
Blumenthal asks the Kasowitz question.
"I'm pretty confident the answer is no."
More on that —>
Humphrey Dumphrey sat on a board / Humphrey Dumphrey had a great fall / All the king's horses and all the king's men / Couldn't put Humphrey back on the FTC again.
So Humphrey's Executor took over / And sued FDR.
So Humphrey's Executor took over / And sued FDR.
This looks exactly how this week feels.
Kavanaugh says he saw Bill Burck at a social event after his nomination, but that is it. "I have not communicated with him beyond that," he says. As to people helping him prepare for the hearings, he won't say if they've been in touch w/ Burck regarding the documents.
"This is an issue for the Bush Library," Kavanaugh says. The Bush Library is not turning over the documents being reviewed. The Office of George W. Bush, and the office's lawyer, Bruck, is turning them over.
Earlier today, I asked Burck to share any guidance he was given on how to make the recommendation as to which documents should be categorized as "committee confidential." He has not provided any such guidance.
Sen. Harris is up and says she had received "reliable information" that he had been a part of a conversation about Mueller's investigation with someone from the Kasowitz firm.
"The answer is no," he says.
Harris says that she wishes he could have been so clear last night.
"In my — nevermind," he responds, cutting himself off.
Harris says that she wishes he could have been so clear last night.
"In my — nevermind," he responds, cutting himself off.
Harris raises Kennedy's legacy on LGBT rights, and specifically the Obergefell majority opinion — asking whether it was correctly decided.
Kavanaugh pivots to Masterpiece Cakeshop: "The days of discriminating against gay and lesbian Americans are over," he says he paraphrases.
Kavanaugh pivots to Masterpiece Cakeshop: "The days of discriminating against gay and lesbian Americans are over," he says he paraphrases.
Kavanaugh says he is declining to answer about his personal view of Obergefell.
On family separations, Kavanaugh says he can't comment because it's pending litigation and he's a sitting judge.
Harris raises the 1889 case around the Chinese Exclusion Act, and he dodges, raising Korematsu instead. —> law.cornell.edu/supremecourt/t…
He will not answer as to his view on the travel ban.
Kavanaugh also will not answer as to his view on Whole Woman's Health — despite the fact that he talked about Casey and Roe, and WWH is the most recent robust precedent in that line of cases.
When he declines to comment, he reiterates language from earlier in the hearing about not commenting on current or recent decisions, saying it's similar to how other SCOTUS nominees have handled such questions and fits within his personal view of judicial independence.
They're going to do a third round: Eight minutes per person. But Grassley basically says that he hopes the Republicans don't ask questions in that round.
Cornyn, going last in the second round, starts off by suggesting that questions about the Federalist Society are like McCarthyism.
OH: “It just feels really late in the day to be talking about Chevron.”
Durbin focused on gun rulings in his third round. Feinstein is up now.
Despite Grassley’s request that Republicans skip their turns, Hatch took a brief turn after Durbin and now Kennedy is up.
Leahy has given his 8 minutes to Hirono, so Grassley has given Leahy some of his time to speak. Leahy thanks him and says he’ll be brief.
Whitehouse is questioning whether Kavanaugh is limiting US v. Nixon to trial subpoenas through his descriptions in a way that would give him an “out” to treat a grand jury subpoena differently. Kavanaugh says he was just characterizing the decision.
Cornyn is up.
Mike Lee talked about federal lands, but had no question on that point, and Kavanaugh’s Sharpie that he is using to take notes. So that’s that on that.
Now up, Klobuchar.
Now up, Klobuchar.
BTW, Kavanaugh said he was using a Sharpie so he could see his notes in the hearing room. (Honestly, practical and made sense!)
Klobuchar brings up Chevron, and even *she* acknowledges this isn’t a headline-grabbing topic, saying she read his view in a certain situation as wishing for de novo review — and then added a joke about her having the attention of everyone still watching at home.
Blumenthal is up. “I’m asking you to reconsider your dissent in Heller II,” he says, signaling a new, more resigned-to-Kavanaugh-becoming-a-justice approach. He’s trying to reason with him this round, not just question him.
Hirono is asking about Janus and the implications of the First Amendment-based rationale for overturning precedents.
Sasse is up: His child wants to know if Kavanaugh is afraid of poisonous spiders and Sasse himself ... is worried about liberals on campus.
Booker is up.
After saying he wouldn't fire someone based on their race or sex, Kavanaugh only broadly says he hires people based on their qualifications when asked about whether firing people because they're gay is OK.
After saying he wouldn't fire someone based on their race or sex, Kavanaugh only broadly says he hires people based on their qualifications when asked about whether firing people because they're gay is OK.
Pressed further, Kavanaugh won't answer about his moral views on anti-gay discrimination due to pending litigation on the scope of civil rights laws.
On his time working in the Bush White House, Kavanaugh won't say whether he ever shared his opinions on same-sex marriage.
K: "There was debate in the White House about what President Bush was doing."
B: As for now, "Have you officiated a gay marriage?"
K: "I have not."
K: "There was debate in the White House about what President Bush was doing."
B: As for now, "Have you officiated a gay marriage?"
K: "I have not."
Flake is up.
(I honestly need this to end.)
(I honestly need this to end.)
I've run two half-marathons, whereas Kavanaugh has done two marathons. That's why I am breaking before him.
I'm not writing in all-caps, but, yeah, that was ... a disquieting moment.
Harris is up. She's starting on Trump's recent DOJ-related tweet.
Harris is talking about affirmative action, asking why courts should decide when the country has reached a point where it's unnecessary.
Kavanaugh doesn't directly answer, but says, "We still have, as I've said in my opinions, work to do" as to race-based discrimination.
Kavanaugh doesn't directly answer, but says, "We still have, as I've said in my opinions, work to do" as to race-based discrimination.
Harris asks about HBCUs and federal funding and how that would be affected by such a time.
He talks about the importance of HBCUs.
He talks about the importance of HBCUs.
/
Regarding Trump's tweets about DOJ, Kavanaugh said he wasn't going to comment because it was in the political realm.
/
Regarding Trump's tweets about DOJ, Kavanaugh said he wasn't going to comment because it was in the political realm.
/
Harris asks about the effect on the Civil Rights Act and Voting Rights Act if such a time is reached.
He says, so long as the laws are in place, they should be enforced.
He says, so long as the laws are in place, they should be enforced.
Tillis is up, asking about the Kasowitz stuff, and what Kasowitz lawyers he knows. He names one, who he worked with in the WH. (Corrected, w/ h/t to @fordm.)
That's that.
That's that.
Grassley is closing it down.
And, that's all, folks!
A little past 10:10p, we are done for the day. And we are done with Kavanaugh's questioning.
Next open session will be at 9:30a Friday, with witnesses.
A little past 10:10p, we are done for the day. And we are done with Kavanaugh's questioning.
Next open session will be at 9:30a Friday, with witnesses.
FYI: Here was the post-Senate Q&A statement on Kavanaugh —>
