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Jessica Mason Pieklo @Hegemommy
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It's DAY THREE of the Kavanaugh hearings. Gather round, friends for another full day of shenanigans I'll be here all day!

Miss day two? Here's a quick recap…
Today's format is largely the same. Members of the Judiciary Committee get to question Kavanaugh. Unlike yesterday's 30 minute rounds are shortened to 20 minutes
Grassley gavels the proceedings to order

Says yesterday's hearing shows Kavanaugh has a strong command of the law
Grassley mentions Kavanaugh's youth coaching and serving meals to homeless folks as more evidence Kavanaugh is qualified for SCOTUS
Grassley complaining that Democrats haven't tried hard enough to get Kavanaugh documents declared 'committee confidential' cleared for use in the hearings
Hirono now takes time to directly address the Tillis swipes at her line of questioning last night and put her response on the record
Booker now also takes time to put his rebuttal to Grassley on the record wrt committee confidential documents

What do they say? Among other things that Kavanugh doesn't think Roe is settled law…
Booker again making the case for slowing the confirmation process because of all the fuckery around Kavanaugh documents. Notes this is a constitutional duty the Senate has.
Grassley responds and is clearly chapped about folks calling the hearing a sham. Insists the document disclosure has been par for the course on SCOTUS nominees
Sen Crapo says he is disappointed in the behavior of other members of the committee [read Booker, Hirono, Leahy, Blumenthal et al]

It is 'inappropriate' to question Kavanaugh on committee confidential materials

Be nicer to Brent, y'all!
Crapo is very upset that Kavanaugh has been treated "uncivilly" by protesters and Senators
Booker responds

No Senate rule accounts for Bill Burke doing a private review of the documents, Booker tells Crapo
Booker says he's prepared to release the email on racial profiling that was mentioned in his line of questioning of Kavanaugh last night even if the consequence is expulsion from the Senate.

Calls this an important moment of civil disobedience
Booker declares he is knowingly releasing committee confidential documents and is prepared to face Senate consequences

Cornyn flips out. Calls this irresponsible and outrageous and akin to leaking national security issues
Grassley jumps in and is nervous about all this. Really doesn't want the documents leaked or to have to censure Booker.
Sen Whitehouse is up now. Says he does not accept the process or legitimacy or validity of committee confidential documents. Says he's not under any obligation to recognize it.

We're gonna see the documents y'all
Feinstein jumps in to say that in previous nominations where documents were marked committee confidential was done through a bipartisan fashion and agreement
Blumenthal joining the charge to disclose documents, says he's attending the hearings under protest
Lee jumps in to defend the process and Bill Burke as a document shepherd
Sen Feinstein up now up and putting Grassley's agreement with Burke to keep documents marked confidential in the record

Says there are no standing rules on how these documents are handled
Feinstein said she offered to work with Grassley on a bipartisan process as in the past but he refused
Now Durbin is up, says his silence is not to be read as consent to the committee confidential process
Durbin says he's got Booker's back

"Let's jump into this pit together," he says
Durbin names the Republican members of the committee as collaborators with Burke to keep Kavanaugh's record secret
Cornyn gets mad says Democrats do it too for their nominations

Narrator: They don't. That's why were here to start with
Hirono up now and announces she too is leaking documents to the press
Now Klobuchar. Notes she's been on many committees where documents are marked confidential and says it's never like this.
Klobuchar says "we simply can't hide theses documents from the American people"
Klobuchar says Republicans are ram-rodding the nomination through for political reasons

Grassley responds with well we did the best we could when you asked

Spoiler: they didn't
Grassley starts shouting

Do you want all the emails to be made public!

Ummm yes we do
Lee jumps in and says he understands the Democrats frustration because as a Senator he doesn't always get what he wants either
Lee says the Senate shouldn't even really have the committee confidential documents because they belong to the Bush White House

The Presidential Records Act respectfully disagrees
Feinstein responds to Lee

Nope. There is no process for committee confidential and the PRA doesn't address this but nice try
Grassley responds:

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
Booker jumps in again and Grassley says he hopes it's not to say the same thing again.

*checks notes for the number of times Kavanaugh was asked what makes a good judge from Republicans*
Booker says this is the closest he'll have to an "I am Spartacus" moment

Says if Cornyn thinks the Judiciary Democrats violated the rules like he's said then bring it. Let's go through the process.
Booker says he hopes the Senate Republicans bring charges against those leaking documents
Cornyn responds. His voice is shaking. Reads Senate Rule 29

Expulsion from the Senate for leaking confidential information
Apply the rule, bring the charges Booker says

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?
Lee jumps in to say the document Booker was leaking has now been approved and says he wants to work with the Dems to make documents public

GOP is rattled
Lee then launches into the history of confidentiality and says let's just use the appropriate process without a hint of irony
Tillis says he hopes someone is keeping a transcript of the hearing

*waives to Judiciary*
Tillis says well hot damn lets just make all Senate emails public forever

Kennedy asks if he can ask a procedure question. Because he always have a procedure question.
Feinstein puts into record a note that Trump just asserted a new claim of constitutional privilege on over 102K pages of Kavanaugh documents
Grassley now pivots to the proceedings and re-introduces Kavanaugh
hot damn that was an interesting start to day 3
Grassley starts by asking Kavanaugh about all the cases where he's ruled for the little guy

Protester interrupts shouting SHAME!
There are a total of three cases Grassley will ask Kavanaugh about where he ruled for the little guy


Kavanaugh starts to answer and is interrupted by a protester imploring the Senate to vote no and save democracy
Grassley turns to ask Kavanaugh about cameras in SCOTUS

Grassley is pro cameras and I agree with him on this point
Honestly I'd be fine with real-time audio like DC Circuit does now because it's the substance that matters.
Feinstein up and asks directly if Kavanaugh's Roe's have changed since he was in the White House

Begins questioning him from one of the previously committee confidential documents that shows Kavanaugh advocating against Roe as settled law
Please, once again, tell us why you believe Roe is settled law and is it correctly settled?

Kavanaugh says the letter Feinstein is referring to expresses the views of 'legal scholars'
Roe v Wade is an important precedent of the Supreme Court that has been re-affirmed many times. Mentions PP v. Casey

Again he skips 2016's Whole Woman's Health decision. He's memory-holed it
Whole Woman's Health is an important abortion rights decision because it makes legislators 'do the math' and have the evidence to support claims curtailing abortion access advances patient health
Kavanaugh still refuses to say if he thinks Roe is settled law, again cites "nominee precedent" [this isn't a thing] for not answering the question
Feinstein now turns to Bush White House anti-abortion efforts including re-instituting the global gag rule and not making Plan B available over the counter.

Did you work on these efforts?

Kavanaugh volunteers to add the federal 'partial birth' abortion ban in there
Kavanaugh basically concedes he worked on these issues

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?
Kavnaugh doesn't answer how involved he was in those decisions but states the the president can't ignore a statute passed by Congress wrt war powers

But what about.... health care? Can the president ignore the ACA
Peeled away for a quick coffee refill to come back to a shout out to Harriet Miers, former Bush attorney and failed Supreme Court nominee
Feinstein now asking about the power of independent agencies and the requirement that they can only be removed for cause

Kavanaugh would like the president to be able to fire agency heads at will which would politicize those agencies and make them partisan arms
Senator Klobuchar did an excellent job of drawing this line of questioning out yesterday just FYI
Kavanaugh was also involved in the Enron scandal and Feinstein wants to know just how much
Not surprisingly Kavanaugh doesn't answer
Hatch now up, calls the protesters inappropriate

He's "deeply concerned" about the "theatrics" displayed here

Hatch says this is basically like church so be quiet
It's not clear but I think Hatch is rushing to defend Bill Burck and his guardianship of Bush White House documents
Hatch directly responds to Harris' line of question on Kavanaugh's conversations about Mueller.

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?
Now Hatch is rushing to rehabilitate the Federalist Society
Kavanaugh is testifying about Fedearlist Society events and the fact that they have a variety of perspectives.

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!
Just a note that these entire two days are why McConnell didn't want Kavanaugh as a nominee to begin with 🤷🏻‍♀️
Hatch turns to Kavanaugh's 'roe isn't settled' email that Feinstein previously questioned him on

Kavanaugh says he was just trying to be accurate about what some legal scholars think
Hatch asks Kavanaugh how his private religious beliefs influence his judicial opinions

Kavanaugh says they don't
Leahy up and puts a series of documents in the record that were de-classified by the committee at 3 am ET
Leahy returns to the GOP stealing emails from Democrats during the Bush years to get Bush judicial nominees confirmed.

Kavanaugh was in the thick of all this and today we might learn just how much Leahy knows about this time
Leahy laying out each instance of previous false testimony by Kavanaugh on these points

*remember the evidence is now part of the record because Leah just introduced them
Leahy now asks him directly

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
Leahy goes in for the kill

Days before the Priscilla Owen confirmation hearing Kavanaugh gets copies of emails marked 'highly confidential' on Democratic strategy on the Owen nomination
Kavanaugh also got confidential information related to the failed nomination of Miguel Estrada

[I covered that nomination it was a shitshow]
Kavanaugh now looks at the document and says he doesn't understand why the original email [from the Bush years] was at the time marked confidential

It was marked confidential a second time by Burck with the blessings of Grassley for Kavanaugh's hearing
Kavanaugh says he wasn't concerned with the GOP emails because it just seemed normal and how things go

Umm yeah no, that's not how it works Leahy responds
Kavanaugh was in possession of a GOP email that ... and I'm not making this up... has "spying" in the subject head

What was it about? Having a mole in the Dem caucus
Maybe Kavanaugh is correct and this *is* pretty normal what is proves is he's a partisan hack first and foremost
Leahy: "I was born at night but not last night"
Leahy "I find it hard to believe" that you didn't know you were in possession of stolen information and used it but testified differently
Leahy now brings up Kavanaugh's role on William Pryor nom. He's currently on the 11th circuit & a buddy of Jeff Sessions and rumored SCOTUS shortlister

Pryor has called Roe an abomination

Leahy asks Kavanaugh if he interviewed him

Kavanaugh: I don't think so

Leahy: you did
Kavanaugh recommended him personally for the 11th Circuit
Now it's Graham's turn and he wants to talk about respecting the process and institutions
Turns to separation of powers and Kavanaugh's rulings
Graham wants to talk about the liberty clause and the fact that abortion isn't in it.

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"
Graham asks what the outer limits of liberty interests and privacy rights are

So... like marriage equality for example
Graham asks Kavanaugh if Congress has the power to come in and legislate "on behalf of the unborn" before medical viability [ie federal constitutional abortion ban] and supersede Roe

Kavanaugh letting him monologue here
Graham asks where is the authority for the Supreme Court to block Congress from banning abortion [basically]

Graham asks if the only way is through constitutional amendment
Kavanaugh doesn't want to answer

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
Graham now turns to 9/11 and makes the case that the war on terror means that America is a battlefield [ie rules of war not constitutional due process] should apply
Graham ate his Wheaties this morning and is here to go all in for a christo-fascist nation
Graham gives Kavanaugh a moment to say something about the hearing process

Kavanaugh says he's on the sunrise side of the mountain and an optimist on the future
We are about to go on break 15 minutes
And we're back! Here's Durbin applauding the First Amendment rights of the protesters at the Kavanaugh hearing
Durbin again starts by noting that Kavanaugh is a *Trump* nominee

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
Durbin starts w/ the power of the presidency and says the he keeps coming back to Morrison v Olson and Scalia's sole dissent that calls for a "unitary executive" and broad sweeping presidential power

In the age of Trump this view of power takes on extra significance Durbin says
Durbin notes many Republican lawmakers cite this dissent in opposition to Mueller

"We're not dealing with stare decisis we are dealing with Scalia decisis" Durbin says
Durbin: Declare for us the power of the presidency in the age of Donald Trump

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]
Kavanaugh brings up his own CFPB dissent that says the agency can still exist [but its head can be fired at will by the president]

Moves to prosecutorial discretion and says he believes in it

A court order that requires or prohibits president from doing something is final word
Kavanaugh calls this "an important principle"
Durbin steps in and asks Kavanaugh

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
This isn't about a particular case it is about a particular moment in history, Durbin says
No one is above the law, Kavanaugh says.

Cites the judiciary and notes that the Supreme Court is the last stop for the separation of powers [not reassuring, Brett]
Durbin turns to Kavanaugh's 2006 testimony [detention/interrogation/torture]

Kavanaugh said he wasn't involved in any of that

Durbin: We've found at least three specific examples of where you were
You call yourself a textualist but you don't want to be held accountable for your own words, Durbin says
1. access to counsel to detainees
2. Bush's signing statement on McCain's torture amendment
3. detention and interrogation techniques
Kavanaugh won't answer this question

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
Durbin's time is up and Grassley asks Kavanaugh if he wants to say anything

Kavanaugh thanks Durbin for a book Durbin gave him
Oh blerg it's Lee
Lee starts by saying he shares Durbin's concerns about torture and detention then says that he thinks the torture and detention issue cuts in Kavanaugh's favor
Lee says it's a "binary" issue

You were either involved in developing that policy or you weren't

That's right, says Kavanaugh
Protest breaks out

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
Okay quick programming break to do a media thing but brb!
Okay I'm back! What did I miss?
Back from recess and Whitehouse is up now
Whitehouse has a photo of Kavanaugh raising his hand during a presentation at Georgetown where he said thought a sitting president couldn't be indicted
Okay now it's Senator Cruz and he starts off by scolding Whitehouse
Protesters interrupt Cruz

Whitehouse apologies to Cruz for quoting a federal court decision describing the racism behind Texas Voter ID law
Cruz asks Kavanaugh why it matters he's a textualist
Kavanaugh says because the constitution

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
snack update: more kale chips and sliced tomatoes
Pay attention to the words of the constitution is Kavanaugh's definition of originalism

[and then fill in the gaps from the Federalist Papers etc...]
Cruz pivots to religious liberty
Discussing school prayer

Kavanaugh says this cases are very fact specific

The case they are discussing is here:…
The case involves the intersection of individual student speech and prohibitions on school prayer

Kavanaugh worked on an amicus brief in the case
Kavanaugh also worked on an amicus group in a case bringing in religious groups to public schools like school gyms or auditoriums…
Cruz now mentions Priests for Life and their challenge to the birth control benefit in the ACA

Kavanaugh would have let them be exempt from the requirement
Kavanaugh says the law requires coverage of "abortion introducing drugs"

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
Here's Kavanaugh's dissent in Priests for Life…
Cruz says the Priests for Life were the little guy in that case and the government was the Big Guy

Note the total erasure of the actual employees relying on these insurance benefits. THEY ARE THE LITTLE GUY NOT A NATIONAL ADVOCACY ORGANIZATION
Cruz asks Kavanaugh if he plans on playing basketball while a justice
Grassley jumps in to rehabilitate Kavanaugh on his work on the Pryor nomination

The GOP is real touchy about Kavanaugh working on the nomination. And they should be. He's a confederacy-style judge
Klobuchar up now. Starts with campaign finance
Kavanaugh won't commit to whether he thinks campaign finance law is settled so Klobuchar asks if Kavanaugh thinks Brown v Board is settled
Kavanugh says it was rightly decided because it fixed a historical wrong [slavery]

Periodic reminder that this what anti-choice folks use in their argument to overturn Roe
Klobuchar is pressing Kavanaugh for what the difference between precedent and settled law

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
Klobuchar asks Kavanaugh about impeachment power and his 2009 University of Minnesota Law Review article where Kavanaugh said that sitting presidents shouldn't be investigated while in office
Klobuchar asks practically speaking how could Congress use its impeachment power without investigations

Kavanaugh says Congress can create its own investigatory body [which I would likely strike as unconstitutional for some reason should it come to SCOTUS]
Kavanaugh says prosecutions could be deferred

Klobuchar says that's a long time! Could be 4-8 years and how can you do an investigation after that?
Klobuchar switches to voting rights and state restrictions post Shelby Co. the SCOTUS decision that gutted much of the Voting Rights Act

Should courts consider these widespread efforts to restrict voting when ruling on challenges to statutes that affect the right to vote?
Kavanaugh says he would rely on what was in the record

Do you believe there's evidence of voter fraud, Klobuchar asks Kavanaugh
Klobuchar turns to affirmative action
Do you believe the use of race as a factor in federal contracting programs violates the 14th Amendment

Kavanaugh doesn't directly answer
Klobuchar moves to attacks on the free press. Her father was a journalist. She says this is personal.

Asks Kavanaugh if public officials can sue the media under any standard less than actual malice?
Kavanaugh says he's not aware of any effort to deviate from that standard
Senator Sasse is up next but before that Grassley interjects to note that 8 more federal judges were confirmed this week 🙃
Sasse congratulates Kavanaugh on having his last day of interviewing in his life

That sounds... ominous
Sasse starts with his civics schtick

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]
Now we're continuing on the judging as umpiring metaphor

Sasse wants to go back to overturning Roe
I have a theory which is that if/when there's a 5th vote to overturn Roe they will assign the majority opinion to do so to Justice Thomas and this ongoing Plessy/Brown line of rhetoric is only reinforcing this theory
Sasse asks Kavanaugh what the purpose of a dissenting opinion in a constitutional case

Kavanaugh: They speak to the next generation notes Harlan dissent in Plessy

Will he quote Rehnquist's on Roe at this hearing?
I can't stress this point enough y'all

This Plessy/Brown conversation is an entire overturn Roe subtweet
Sasse now asks why a judge would write a concurring dissent

Again. This is about abortion. See Kavanaugh's dissent in Garza v Hargan the case involving abortion right and undocumented minors
Sasse's entire line of questioning was about how Kavanaugh could overturn Roe
Sen Coons up now

Starts off with the concept that no-one including the president is above the law
Begins with Watergate and the firing of Special Counsel Archibald Cox

When Nixon did that did he violate the law or the constitution Coons asks Kavanaugh
Kavanaugh says if it violated the regulation [it did firings were for cause] then yes

Won't answer directly if he thinks it violates the constitution
Coons and Kavanaugh going back and forth on US v Nixon and the ability of a sitting president to be subject to subpoena powers

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
Coons now asks Kavanaugh asks if Griswold et al [de-criminalizing contraception] was correctly decided

Kavanaugh says he agrees with Alito and Roberts

That's not a straight yes, folks
Coons says he doesn't think Kavanaugh is being direct about his views on presidential power because if he were it would put his nomination at risk
Coons and Kavanaugh went to law school together FWIW
short break coming up but before that Grassley is going to rehabilitate Kavanaugh again
snack update: toast with hummus and tomato

also a peach
We're back! Kavanaugh is talking about being a youth basketball coach

introducing team members in chambers to support his nomination. 5th and 7th graders
This is a very Commander Kavanaugh moment

Flake up now and asks Kavanaugh what decisions he thinks he got wrong

This is the worst job interview question no matter the job
Flake is basically giving Kavanaugh a bunch of fluff time here
Kavanaugh testifying that writing is hard and on this point we agree
Flake asking a line of questioning about data privacy the intersection of police power/surveillance power

Kavanaugh says this is an important issue moving forward but now Blumenthal is up so lets focus there
Blumenthal goes right to newly-disclosed Kavanaugh email where he says Roe can be overturned

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
Also asks Kavanaugh about who he talked about the special counsel investigation with and Kavanaugh goes back to no "inappropriate" conversations
Blumenthal asks Kavanaugh if he's had any conversation with anyone in the White House about the special counsel investigation

Kavanaugh says he can't remember
Kavanaugh is quibbling with the question and says Blumenthal has changed it

I've no discussions of the kind you're thinking of, Kavanaugh says
Blumenthal moves on to the Harris line of questioning about conversations with private law firm

Kavanaugh now remembers he's got friends there

I'm pretty confident the answer is no he says
BTW it is clear that Blumenthal thinks Kavanaugh is not testifying accurately here and may have perjured himself. He mentions Kavanaugh being under oath specifically
Kavanaugh can't even say outright he thinks RBG is a competent judge

[this is in response to Blumenthal reading Trump tweets attacking RBG]
Blumenthal raises other Trump attacks on the judiciary and asks Kavanaugh to stand up for the federal judiciary

Roberts even spoke out against these comments. Kavanaugh won't
Blumenthal turns to Kavanaugh's opening comments after his nomination [which were super weird] about how no president had consulted as widely as Trump did before nominating Kavanaugh
Kavanaugh says he looked into past nominations

Did you talk to President Clinton, Blumenthal asks incredulously
I remember these comments very specifically because as they happened many of us went... wuuut

They were weird, almost like he was justifying his nomination for some reason
Blumenthal pivots to the ACA and pre-existing conditions

My view of our constitutional beliefs is that Donald Trump could deem the ACA pre-existing protection unconstitutional, Blumenthal says?
Kavanaugh says his decisions that have ruled in favor of the ACA shows he understands the real world impacts

He then says prosecutorial discretion for the rest
Blumenthal gaveled to an end

Grassley jumps in to rehabilitate Kavanaugh on the Mueller investigation
Sen Crapo up now and starts with independent v. special counsel
All of this is rebuttal testimony and talking points so I won't summarize it again. Tl;dr Republicans are looking for a way to say that Kavanaugh wouldn't insulate Trump and others from the Mueller investigation and its fallout
Hirono now up and picks up on Kavanaugh's views of presidential power
Hirono asks Kavanaugh if disagreeing with the President is a concern

Kavanaugh says he's an independent judge
Hirono then returns Kavanaugh and hist thoughts on race-conscious policies
Not much new ground covers here. Kavanaugh is still terrible on race-conscious policies

Hirono turns to Priests for Life
Hirono walking through the substantial burden on the employer in Priests for Life

They had to fill out a form

Kavanaugh said that Priests for Life's religious beliefs were substantially burdened by that
Do you believe religious beliefs trump other rights, Hirono asks

Kavanaugh answers by walking through the steps of RFA analysis
Hirono moves on to what she calls a related case, Garza v Hargan

I agree they are related
Hirono notes that in both Priests for Life and Garza v Hargan Kavanaugh ruled agains the rights of women in favor of the rights of [effectively] government/men
Hirono notes that Kavanaugh thought filling out a two page form was a burden on Priests for Life but going through additional hurdles for an abortion was not
In each case I was doing my best to apply precedent, Kavanaugh says
Hirono now moves to Trump v Hawaii and Roberts statement that Korematsu was overruled "by the court of history"

Then notes all the ways Trump v Hawaii was like Korematsu [this is Sotomayor's dissent in Trump v Hawaii]
Hirono wants to know when we can hold the president accountable for racist garbage when he claims it's actually national security
Senator Kennedy up next and then a dinner break then 4 more Senators then apparently a third round is happening though is that open? Not clear
Kennedy starts with the role of the independent judiciary
Kavanaugh discloses he doesn't vote in political elections as part of maintaining that independence
Kennedy moves to the fact that Kavanaugh has hired diverse clerks
Like yes this is a good thing but if you're constantly ruling to keep the playing field crocked then it's really about maintaining pathways to power

Which is exactly why Lisa Blatt endorsed Kavanaugh
Kennedy asking Kavanaugh about the penumbra of privacy rights and seems sincerely baffled by all of it
Muddled through privacy rights and have turned to Kavanaugh's time as a high school athlete and what he does to stay in shape now
Kennedy's time is up but Cornyn jumps in to praise Kavanaugh for hiring women law clerks
And we're back. I did *not* eat dinner in the break but hope Booker did!
Booker wants to know if the folks preparing Kavanaugh for the hearings if they've been in touch with Burck about the documents he's refusing to disclose

I've been saying out of it says Kavanaugh
Booker then wants Kavanaugh to clarify his position on whether a sitting president can be indicted.

Kavanaugh really can't
I promise you I have an open mind, Kavanaugh says
Booker tells Kavanaugh there's a shadow over his nomination and tells Kavanaugh he's the one who can do something about that
Booker notes that Trump demands loyalty from others and wants to know if he's demanded the same from Kavanaugh
My only loyalty is to the Constitution, Kavanaugh says
Booker speechifying again

He says the Senate will be tested soon. And the Court will be as well.
Booker wants Kavanaugh to commit to recusal for matters of the Mueller investigation

Kavanaugh says he can't commit to how he'd resolve something

Booker notes recusal solves the "resolves" problem here
Sen Tillis up now
Tillis putting in more recommendation letters for Kavanaugh into the record, including from Catholic Charities
After some questions on executive power Tillis turns to scolding Senate Democrats for complaining about document disclosures
Tillis is now defending Justice Gorsuch I guess
Tillis is just monologuing here
That ends and Harris with up asking if Kavanaugh will commit to recusal in Mueller

Kavanaugh won't
Harris moves to Kennedy's opinion in Obergerfell and asks Kavanaugh if it was correctly decided

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
The fact that Kavanaugh won't talk about Obergefell but insists on talking about Masterpiece Cakeshop is TELLING
Harris asks if Obergefell was a great moment like Brown v Board was

Kavanaugh says he can't give a thumbs up or a thumbs down
Harris moves to family separation policy and asks whether there are fundamental familial rights for immigrant families

Kavanaugh says that's pending litigation and can't discuss
Harris asks if the president has the power to ban entry into the country on the basis of race

Kavanaugh says he can't answer
Harris brings up Whole Woman's Health and asks Kavanaugh if that case was correctly decided

Kavanaugh won't answer
She pivots to asking him about what is 'resolved and unresolved' in abortion rights and the power of the state to restrict abortion access. Mentions Texas' D&E ban which is tied up in the federal courts
Harris asks if Congress can ban abortion at 20 weeks

Kavanaugh won't answer
Harris asking about unenumerated rights and Kavanaugh's praise of Rehnquist's dissent in Roe

Harris notes this is more than abortion

For example:

right to marry
right to refuse medical care
right to vote
Which of these rights that I just mentioned do you want to put an end to or roll back, Harris asks
A third round is happening. Eight minute rounds. Then closed session.
Peeling out for to do a thing but will be back as soon as it's done. Cornyn is up now and his entire schtick will be to rehabilitate Kavanaugh
Okay here I am!
Kavanaugh back on his bullshit about Georgetown Prep being in the middle of murder city DC
Democrats using this last round to really nail down the questions around Kavanaugh's independence from Trump and his willingness, or not, to insulate the president and his allies from liability
Sen Whitehouse asks Kavanaugh if Federalist Society head Leonard Leo is in Kavanaugh's phone.

Yes we've been friends for 20 years Kavanaugh responds
Whitehouse just called Kavanaugh a human torpedo launched at the Mueller investigation and that's an image
Hi my name is Jess and I live in the Kavanaugh hearings now
Why are Republicans even trying to rehabilitate Kavanaugh still?
Cornyn's themes on rehabilitation have consistently been that hiring people means your not racist/sexist and that the government is mean to evangelicals
Coons up now.

Judge Kavanaugh we are at the end of a long day, Coons says

Yes it has been.
Coons pressing Kavanaugh on unenumerated rights like contraception, abortion, and intimacy rights
Again when pressed on marriage equality Kavanaugh pivots to Masterpiece Cakeshop. He uses it as cite that the 'days of discriminating' against LGBTQ people are over.

Just like our post-racial America
Coons making the case for how Kavanaugh's praise of Rehnquist illustrates a pathway to blow up precedent around contraception, abortion, and LGBTQ rights
It's Sen. Lee. Again.
We've moved to Sen Klobuchar and judicial deference to agency authority
Klobuchar has had one of the most effective lines of questions to draw out how radical Kavanaugh's ideas about *how* the government should work imo
I happen to *LOVE* administrative law but I appreciate that can be an acquired taste. And Klobuchar has done a great job making dense and pretty dry law clear
Blumenthal up now. Asks about assault weapons
Blumenthal says he considered bringing posters from Sandy Hook to talk about the real life implications from Kavanaugh's views.

That would have been some impact. I can't even fathom what those blow-ups would look like.

I'm not criticizing the decision not to. I'm just saying damn.
Blumenthal goes to 3D guns & says they're not in common use now, but will be if not banned

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
Blumenthal is very affected speaking about Sandy Hook. This is. Ooof.
Kavanaugh is offered a five minute break and he takes it
I can't believe other news is happening still
Okay we're back. Sen. Hirono then Sen. Sasse
Hirono starts with Janus and how conservative groups have worked to establish SCOTUS precedent that protects workers, women, etc..
Oh hey! There's been a lot of talk of Kavanaugh and Roe and here's something I wrote up about it today…
Hirono quotes Kagan and "weaponizing the First Amendment"

Last time I quoted Kagan and weaponing the First Amendment Twitchy went after me 🙃
Hirono is using Janus as a way to signal the coming challenges to Roe
Hirono turns to guns and the outside spending by related groups to support his confirmation
Why would the NRA spend so much money to get you confirmed, Hirono asks
Now Sen. Sasse is up says we're up way past bedtime
Sasse says he's very worried about the "liberal project" on college campuses and free speech
Sasse asking about why we have different categories of speech and I would see that as a signal that cake is speech
Sasse asks what is hate speech and who gets to decide what it is
I have a lot of thoughts and have written a fair number of articles on the intersection of the First Amendment and hate speech but I'm tired so remind me later and I'll say things
Booker up now. Asks Kavanaugh if it would be wrong to fire someone for being gay

Kavanaugh doesn't answer
Booker notes that it's still legal in a majority of states to fire someone for being gay
If you want to know whether or not Kavanaugh thinks you can fire someone for being gay I would point you to all the times he's cited Masterpiece Cakeshop tonight
Booker brings up Kavanaugh's time in the Bush White House and BWH opposition to same-sex marriage
Here it is! Boom! Lawyered Kavanaugh Hearings DAY THREE…
Booker now pivots to criminal justice
Cites Kavanaugh's praise of Rehnquist's efforts to halt constitutional protections for the accused in the 60s .. like Miranda etc..
Booker says Kavanaugh is doing a good job not letting him get to his questions
We're now talking about a senate book club
Aaaaand it is Sen. Flake
We are back to cameras in the courtroom. Flake is opposed.

Does he really need to spend more time on this?
Flake says cameras in the courtroom would bring politics to the judiciary

Sen Harris up again

Wants Kavanaugh to say that a sitting president shouldn't politicize the judiciary

Kavanaugh says he can't
Harris now pushing Kavanaugh on race conscious policies
How is it not midnight
Now it's Tillis. He's still grumpy

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
Grassley closing out tonight's session now
Tomorrow is the last day of the hearing. Panel of witnesses so not Senators asking Kavanaugh questions

Approximately 30 witnesses tomorrow, including Rochelle Garza, the attorney who represents undocumented minors trying to get an abortion while in government custody
That's a wrap for tonight, folks! Thanks for joining the ride.

For more coverage on today's shenanigans check here:…

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