Miss day two? Here's a quick recap
Says yesterday's hearing shows Kavanaugh has a strong command of the law
What do they say? Among other things that Kavanugh doesn't think Roe is settled law
It is 'inappropriate' to question Kavanaugh on committee confidential materials
Be nicer to Brent, y'all!
No Senate rule accounts for Bill Burke doing a private review of the documents, Booker tells Crapo
Calls this an important moment of civil disobedience
Cornyn flips out. Calls this irresponsible and outrageous and akin to leaking national security issues
We're gonna see the documents y'all
Says there are no standing rules on how these documents are handled
"Let's jump into this pit together," he says
Narrator: They don't. That's why were here to start with
Grassley responds with well we did the best we could when you asked
Spoiler: they didn't
Do you want all the emails to be made public!
Ummm yes we do
The Presidential Records Act respectfully disagrees
Nope. There is no process for committee confidential and the PRA doesn't address this but nice try
Leahy did this with Kagan [well yeah but the republicans agreed]
Coons jumps in: Burke is not part of the National Archives and the Archives has even disavowed this process.
Agrees with Booker that documents should be released
*checks notes for the number of times Kavanaugh was asked what makes a good judge from Republicans*
Says if Cornyn thinks the Judiciary Democrats violated the rules like he's said then bring it. Let's go through the process.
Expulsion from the Senate for leaking confidential information
Blumenthal says they are all ready to face expulsion
The question is what are they afraid the American people will see?
What are they afraid we would be asking if we had all the documents?
GOP is rattled
*waives to Judiciary*
Protester interrupts shouting SHAME!
THREE WHOLE CASES
Kavanaugh starts to answer and is interrupted by a protester imploring the Senate to vote no and save democracy
Grassley is pro cameras and I agree with him on this point
Begins questioning him from one of the previously committee confidential documents that shows Kavanaugh advocating against Roe as settled law
Kavanaugh says the letter Feinstein is referring to expresses the views of 'legal scholars'
Again he skips 2016's Whole Woman's Health decision. He's memory-holed it
Did you work on these efforts?
Kavanaugh volunteers to add the federal 'partial birth' abortion ban in there
Feinstein now moves to torture and Bush fight with Congress over torture
How involved were you with the conclusion that Bush could ignore the torture ban?
But what about.... health care? Can the president ignore the ACA
Kavanaugh would like the president to be able to fire agency heads at will which would politicize those agencies and make them partisan arms
He's "deeply concerned" about the "theatrics" displayed here
Hatch says this is basically like church so be quiet
I'd like to give you a chance to respond
"I haven't had any inappropriate conversations about that investigation" Kavanaugh said.
What would an appropriate conversation look like?
Full disclosure: I was a guest at a Federalist Society event on abortion rights at the University of Minnesota. I was the pro-choice perspective. It was fun!
Kavanaugh says he was just trying to be accurate about what some legal scholars think
Kavanaugh says they don't
Kavanaugh was in the thick of all this and today we might learn just how much Leahy knows about this time
*remember the evidence is now part of the record because Leah just introduced them
Has anyone advised you of what Democratic Senators plan to do at this hearing?
Kavanaugh says there's been conversations about what individual senators might be interested in chatting about
Days before the Priscilla Owen confirmation hearing Kavanaugh gets copies of emails marked 'highly confidential' on Democratic strategy on the Owen nomination
[I covered that nomination it was a shitshow]
It was marked confidential a second time by Burck with the blessings of Grassley for Kavanaugh's hearing
Umm yeah no, that's not how it works Leahy responds
What was it about? Having a mole in the Dem caucus
Pryor has called Roe an abomination
Leahy asks Kavanaugh if he interviewed him
Kavanaugh: I don't think so
Leahy: you did
Graham just also said that the right to reproductive autonomy isn't a liberty [ie constitutional] interest "even though the Surpeme Court said it is"
So... like marriage equality for example
Kavanaugh letting him monologue here
Graham asks if the only way is through constitutional amendment
Graham answers for him: when the Court has decided a constitutional matter you need a constitutional means to undo it [ie amendment]
Kavanaugh: well yes
Kavanaugh says he's on the sunrise side of the mountain and an optimist on the future
Kavanaugh may end up a confirmed SCOTUS justice but Durbin is here to make sure the record is clear that Kavanaugh is a party to the administration's flouting of the law
In the age of Trump this view of power takes on extra significance Durbin says
"We're not dealing with stare decisis we are dealing with Scalia decisis" Durbin says
Kavanaugh answers by distinguishing between special counsel [and a different, expired statute] and a different line of cases that allows independent agencies to exist [ie independent prosecutors]
Moves to prosecutorial discretion and says he believes in it
A court order that requires or prohibits president from doing something is final word
Do you understand where we are now?
When books will be written about when democracy die?
Give us some reassurance to your commitment to democratic principles in this country when the president is willing to set them aside
Cites the judiciary and notes that the Supreme Court is the last stop for the separation of powers [not reassuring, Brett]
Kavanaugh said he wasn't involved in any of that
Durbin: We've found at least three specific examples of where you were
2. Bush's signing statement on McCain's torture amendment
3. detention and interrogation techniques
Says his 2006 testimony was correct but that as staff secretary emails would have passed his desk
"I don't think the Staff Secretary is just a file clerk" Durbin says
Kavanaugh thanks Durbin for a book Durbin gave him
You were either involved in developing that policy or you weren't
That's right, says Kavanaugh
It's loud and rowdy
Off mic someone suggests maybe Lee explain what it means to be "read into" a program
Gov't speak for security clearance for classified/sensitive issues
Whitehouse apologies to Cruz for quoting a federal court decision describing the racism behind Texas Voter ID law
Cruz asks about skepticism of legislative history
Kavanaugh says one reason why he's skeptical is because lege history is not part of the law
[and then fill in the gaps from the Federalist Papers etc...]
Kavanaugh says this cases are very fact specific
The case they are discussing is here:
Kavanaugh worked on an amicus brief in the case
Kavanaugh would have let them be exempt from the requirement
He means hormonal birth control. Anti-choice activists believe that birth control = abortion so when they try to ban abortion don't think they'll stop there
Note the total erasure of the actual employees relying on these insurance benefits. THEY ARE THE LITTLE GUY NOT A NATIONAL ADVOCACY ORGANIZATION
The GOP is real touchy about Kavanaugh working on the nomination. And they should be. He's a confederacy-style judge
Periodic reminder that this what anti-choice folks use in their argument to overturn Roe
Klobuchar wants to know if Kavanaugh says Brown is okay why won't he for Roe
Kavanaugh: none of the other justices had to say they like Roe
Kavanaugh says Congress can create its own investigatory body [which I would likely strike as unconstitutional for some reason should it come to SCOTUS]
Klobuchar says that's a long time! Could be 4-8 years and how can you do an investigation after that?
Should courts consider these widespread efforts to restrict voting when ruling on challenges to statutes that affect the right to vote?
Do you believe there's evidence of voter fraud, Klobuchar asks Kavanaugh
Kavanaugh doesn't directly answer
Asks Kavanaugh if public officials can sue the media under any standard less than actual malice?
That sounds... ominous
Asks Kavanaugh if the Court has every made a mistake [hint he's talking about Roe]
Kavanaugh says yup names Plessy [that case had only one dissent btw]
Sasse wants to go back to overturning Roe
Kavanaugh: They speak to the next generation notes Harlan dissent in Plessy
Will he quote Rehnquist's on Roe at this hearing?
This Plessy/Brown conversation is an entire overturn Roe subtweet
Again. This is about abortion. See Kavanaugh's dissent in Garza v Hargan the case involving abortion right and undocumented minors
Starts off with the concept that no-one including the president is above the law
When Nixon did that did he violate the law or the constitution Coons asks Kavanaugh
Won't answer directly if he thinks it violates the constitution
Kavanaugh keeps saying he agrees with the decision [to enforce the subpoenas] but testhers that to the specific statute, not the constitution
Returning to idea of removing agency heads for cause v. at will which is what Kavanaugh wants
Kavanaugh does not want his views of the executive and being subject to prosecution and investigation to his views that the president should be able to fire agencies at will
Kavanaugh says he agrees with Alito and Roberts
That's not a straight yes, folks
also a peach
introducing team members in chambers to support his nomination. 5th and 7th graders
This is the worst job interview question no matter the job
Kavanaugh says this is an important issue moving forward but now Blumenthal is up so lets focus there
Asks Kavanaugh if anyone told him yesterday that he'd be asked about it
Kavanaugh says he doesn't remember if he was shown it last night
Kavanaugh says he can't remember
I've no discussions of the kind you're thinking of, Kavanaugh says
Kavanaugh now remembers he's got friends there
I'm pretty confident the answer is no he says
[this is in response to Blumenthal reading Trump tweets attacking RBG]
Roberts even spoke out against these comments. Kavanaugh won't
Did you talk to President Clinton, Blumenthal asks incredulously
They were weird, almost like he was justifying his nomination for some reason
My view of our constitutional beliefs is that Donald Trump could deem the ACA pre-existing protection unconstitutional, Blumenthal says?
He then says prosecutorial discretion for the rest
Grassley jumps in to rehabilitate Kavanaugh on the Mueller investigation
Kavanaugh says he's an independent judge
Hirono turns to Priests for Life
They had to fill out a form
Kavanaugh said that Priests for Life's religious beliefs were substantially burdened by that
Kavanaugh answers by walking through the steps of RFA analysis
I agree they are related
Then notes all the ways Trump v Hawaii was like Korematsu [this is Sotomayor's dissent in Trump v Hawaii]
Which is exactly why Lisa Blatt endorsed Kavanaugh
I've been saying out of it says Kavanaugh
Kavanaugh really can't
He says the Senate will be tested soon. And the Court will be as well.
Kavanaugh says he can't commit to how he'd resolve something
Booker notes recusal solves the "resolves" problem here
Kavanaugh going to monologue over Harris on Kennedy's legacy and ends with Masterpiece Cakeshop and wants to talk about that
So he's anti marriage equality
Kavanaugh says he can't give a thumbs up or a thumbs down
Kavanaugh says that's pending litigation and can't discuss
Kavanaugh says he can't answer
Kavanaugh won't answer
Kavanaugh won't answer
Harris notes this is more than abortion
right to marry
right to refuse medical care
right to vote
Yes we've been friends for 20 years Kavanaugh responds
Judge Kavanaugh we are at the end of a long day, Coons says
Yes it has been.
Just like our post-racial America
I'm not criticizing the decision not to. I'm just saying damn.
If they are in common use by Kavanaugh's standards that means they can't be regulated by the 2A
See how that works? Prevent regulation. Flood markets. Declare a weapon constitutional
Last time I quoted Kagan and weaponing the First Amendment Twitchy went after me 🙃
Kavanaugh doesn't answer
Does he really need to spend more time on this?
ALL THE LOLOLOLOLOLOLS
Wants Kavanaugh to say that a sitting president shouldn't politicize the judiciary
Kavanaugh says he can't
He wants to talk about fire someone for being gay. Says it's immoral.
Yes it is. But that's not the same as being illegal
Approximately 30 witnesses tomorrow, including Rochelle Garza, the attorney who represents undocumented minors trying to get an abortion while in government custody