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Thread by @rpbp: "It's of the Kavanaugh hearing; I'm watching so you don't have to. Catch up on below and follow this thread for a play by play. d […]" #day3 #day2 #KavaWrong

202 tweets, 49 min read
It's #day3 of the Kavanaugh hearing; I'm watching so you don't have to.

Catch up on #day2 below and follow this thread for a play by play.

dailykos.com/stories/2018/9…
@ChuckGrassley's mouth is moving so you know he's lying.

He's caught Kavanaugh's repetition bug. Complaining about Ds wanting to see Kavanaugh's record. Belly-aching about how senators wouldn't want their emails exposed either.
@maziehirono has a response to the claim that she should have asked Obama appointee Judge Paul Watford, not just Kavanaugh, about affiliation with sexual predator Judge Kozinski.

It's a doozy.
“If President Trump would be so enlightened as to withdraw Judge Kavanaugh’s nomination and nominate Judge Watford to the Supreme Court, I would certainly ask Judge Watford about his relationship with Judge Kozinski."

🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥🔥
Do we think that @ChuckGrassley and @JohnCornyn could possibly believe this garbled account of the document review and Democrats' unreasonableness?
@CoryBooker is committing an act of civil disobedience. He is going to release Kavanaugh's racial profiling email.

He's doing it because he wants to prove to the public that the documents being withheld have nothing to do with national security.
Booker says he understands this act comes with the possibility he will be expelled from the Senate.

"How many times are you going to say the same thing?" Says Grassley, nastily.

"Running for president is no excuse for releasing confidential documents," says Cornyn emphatically.
But, by the way, Cornyn is scared. He's asking Booker to reconsider releasing the email.
@SenWhitehouse is on fire.

"I don't accept the legitimacy or validity of the committee confidential process. Lest silence imply consent--I think that the rule is as valid as if the Chairman announced he's repealed the rule of gravity."
"I am not willing to concede that there is any legitimacy to the whole committee confidential process. Nothing personal, nothing classified, nothing sensitive has been released."
@SenJohnKennedy falls on his sword: This started on his watch last night.
@SenBlumenthal calls committee confidential an arbitrary, capricious designation designed to spare embarrassment. The docs belong to the people of the US. They will become public. Shame on my colleagues if they deny us the benefit of these documents now. This is the last day.
@SenFeinstein is here to say that the intelligence committee has rules around committee confidentiality; this committee does not. There's no call for 190,000 documents to be 'committee confidential.'
@SenatorDurbin is giving historical context again, citing the National Archives as well as Senate custom to show just how absurd this process is relative to all past processes.

"Who is Bill Burck? All I know is that he was once an assistant to the nominee."
"He's worked for Bush, Priebus, and Steve Bannon, who I couldn't characterize in a few words. He's the filter."

@SenatorDurbin backs @CoryBooker. "Let's jump into this pit together. If there is going to be some retribution against the senator from New Jersey count me in."
The only reason any of this is happening: The R members of this committee.

Durbin goes further to ding Grassley for singling Booker out for "cross-examining" Kavanaugh and "behavior unbecoming of a senator."

That's personal, and it should be avoided.

The Democrats are on 🔥.
@maziehirono is my homegirl.

"Count me in, too. I am releasing [the committee confidential document she referred to] to the press."

"I would defy anyone reading this document to determine it should be confidential in any way shape or form."
Next to join: @amyklobuchar. A little weaker, but also backing Booker.

She calls the process a farce and a tragedy.

"We're denying the public the right to see what's out there. That's not how we do things in my state, and it's not how we do things on this committee."
Just in case you'd like a Booker-specific post. dailykos.com/stories/2018/9…
Grassley is *losing* it. Not sure if the CSPAN camera can catch flying spittle.

He's just going on about how THEY wouldn't want THEIR emails released.
"Between now & confirmation there's an obligation on the part of every member of this committee to release docs he/she thinks r important. To delegate to an unknown figure who used 2 work 4 the nominee is the height of irresponsibility."
@SenFeinstein: "There is no process for committee confidential. [It] becomes a kind of a crock. I think we need to sit down and have a rule on how committee confidential is determined on what it means and who makes that decision. For all I know some R staffer made that decision."
@CoryBooker is challenging Cornyn to pursue charges against Booker and the other Dems who are violating Grassley's rule.

It's not a violation of Senate rules, just Grassley's.

Come at us, says Booker w/Coons, Whitehouse, Durbin, Blumenthal, Hirono, Feinstein.
@JohnCornyn is citing the rule that "I don't talk to Raj" Shah just tweeted out from the White House.

Booker's reply: Charge us.
This is about making the public understand how important this lifetime appointment is, says Blumenthal.

"What are they concealing by this procedure? What are they afraid the people will see? What are they afraid we would be asking if we had all the documents we need?"
Mike Lee, again demonstrating why it's insane anyone ever proposed he could sit on SCOTUS, goes back to saying that the documents "don't belong to us."

"The belong to someone else."
"I hope everyone will make a transcript of what's going on right now," says @SenThomTillis. "Let's talk about the consequences of making this an untrusted body to receive documents."

He's picking up Grassley's line about how they should all have their email exposed.
It's @SenFeinstein going after Kavanaugh over that anti-abortion oped he was writing . . . on behalf of women.
usnews.com/news/politics/…
BOOKER RELEASED THE EMAILS!

twitter.com/NYTnickc?ref_s…
Updated post on Booker; stay tuned for what the racial profiling emails mean for Republicans' vote margin...or lack thereof.

dailykos.com/stories/2018/9…
If @SenatorTimScott was willing to sink a racist appellate nominee on principle, he should most definitely keep Kavanaugh off the Supreme Court.

dailykos.com/stories/2018/9…
@SenatorLeahy is tearing Kavanaugh apart.

He's not going to ask him again if he remembers getting the email with information stolen from Leahy.

He's asking him why Democratic talking points should ever be marked confidential if they were obtained legitimately.
@maziehirono is coming for @lisamurkowski and she's not playing.

Here's what Hirono has released so far.

hirono.senate.gov/imo/media/doc/…
Leahy to Kavanaugh:

"I was born at night, but not last night."
Sen. Hirono: “My colleagues from Alaska should be deeply troubled by [Kavanaugh's] views."

Um, yes.
Brett just keeps listing things at Leahy and refusing to say much of anything; Leahy just keeps exposing evidence that Kavanaugh is dodging.

Again, zero doubt Kavanaugh has an incredible memory. That's what makes his selective amnesia so obscene.
This is the @LindseyGrahamSC show.

"Yes or no? Is there anything in the document itself about...abortion?"

"The liberty clause refers to liberty."

"What are the limits on the court's ability to find rights within the penumbra of rights?"

What's Graham getting out of this?
Graham is now pressing on whether our history includes a right to abortion.

"So how did the Court determine that it was?"

Kavanaugh just keeps going back to try to explain Roe.
"Fill in the blank:" What are the limits of the people in your business applying this to anything considered liberty?

"Whether you agree with Roe v Wade or not just think what could happen down the road if five people determine the word 'liberty' means X."
"The only real solution is a constitutional amendment to change the ruling, right?"

"Senator, I'm not going to comment--"

@LindseyGrahamSC is attacking substantive due process. It's dangerous as hell.

Here's why.

dailykos.com/stories/2018/6…
We are back, and @SenatorDurbin is up again.

Kavanaugh is just repeating himself to a degree that is making my ears bleed.
Hasn't Mike Lee used all his time yet?
Just one more tidbit re: the whole "I don't know everyone at the law firm" situation.
Terrific statement from Rep. Gutiérrez and the Hispanic Caucus. Gracias mil, @RepGutierrez.

It's time to say, anti-immigrant; it's time to say, anti-Latinx.

We must prevent the country from going backward.

Video as soon as I can grab it.
@SenWhitehouse asks Kavanaugh to give journalists who used him as a source during the Starr investigation permission to disclose what material came from him.

Kavanaugh pretends not to understand.
"Sir, I spoke to reporters..."

"I know. If you hadn't, I wouldn't be asking."

Kavanaugh repeats himself.

"This is a simple thing, you either will or will not [give journalists permission]--or even say you'll take it under consideration."
"Can you release [journalists keeping your identity private] from [keeping it private] by saying here publicly, whoever I spoke to, you can release it, it's over and done?"

He repeats himself a third time before Whitehouse squeezes the "no" out of him.
Kavanaugh's saying something curiously 1L esque--he's referring to "Justice Department law." There's no such thing.

@SenWhitehouse calls him on it, but he just pretends that's a normal way to refer to guidance and opinions within DOJ.
Shorter Whitehouse:

You raised your hand at Georgetown when asked if you thought the president couldn't be indicted.

There's no statutory bar to indicting the president, DOJ "law" isn't law, so--your position has to come from constitutional law, right?
Kavanaugh keeps saying he's never taken a position on constitutionality of indictment, but, just as Whitehouse has pointed out, he's said the president can't be indicted--and that wasn't based on statutes or the DOJ "law," had to be a constitutional conclusion.
Kavanaugh says he doesn't know what he meant 20 years ago--more convenient amnesia--but assumes that he was thinking of the DOJ OLC opinion, which he would call law.

I can't think of a 1L who'd try to make a claim like this.
We're on to recusal, but Kavanaugh is just describing what recusal is and talking about recusal on the D.C. Circuit. Shocker.
Stepping away briefly...but I'll be back.
@SenBlumenthal is as frustrated as everyone else by the pretense that the executive refusing to enforce a law contrary to the courts is the same as a prosecutor exercising prosecutorial discretion.

He's asking in the context of the ACA.

These are the stakes.
It's @MikeCrapo, so it's catch-up time.

This is a big deal.

Here's your reminder that these documents matter. And will keep mattering between now and the vote.

If I never hear Brett Kavanaugh ask himself another question it will be too soon.
"People just have to read the cases" to know that Kavanaugh's not after the little guy per @MikeCrapo.

I have read his cases. Kavanaugh is not for the little guy; he's the bad guy.
@maziehirono calls Kavanaugh's writings saying the president shouldn't be investigated a "blinking red light" for this president.

"Is disagreeing with the president a concern for you?"

"I'm an independent judge."

"You're saying it's not a concern to you?"

"I'm saying that..."
"Is disagreeing with the president a concern to you when it's not a case in front of you?"

"[blah, blah] we stay out of politics."

"So any statement from the president is political to you and you will not respond."
@maziehirono: @SenThomTillis brought up Rice v. Cayetano, and you, Kavanaugh, "g[ave[ it a different and grossly misleading spin."

"You misstated the holding of Rice v. Cayetano."

supreme.justia.com/cases/federal/…
Would you apply Rice still assuming "programs that benefit native Hawaiians should be subject to strict scrutiny because they are of questionable validity under the Constitution?"

Hirono is owning Kavanaugh on case law.
"Considering that Rice was a 15th Amendment case & you are citing cases where other constitutional provisions come into play, Rice should be restricted to the 15th Amendment," says Hirono. "Last night you said it was a straight forward violation of the 14th and 15th Amendments."
"You wanted the decision to be based on the 14th and 15th Amendments; that is not what they did. This reminds me of the criticism lodged against you in the US v. Anthem case where the majority said you applied the law as you wanted it to be not how it is."
"My question is where in the Rice case they decided it on 14th Amendment grounds?"

Sputters.

"Where in the decision do they rely on the 14th Amendment?"
Final blow (on this topic) from Hirono:

It is disturbing to me that you would cite Rice as relevant to the 14th Amendment given this criticism of you as applying the law as you want it to be rather than how it is.
Y'all, @maziehirono is headed for Hobby Lobby and back to Priests for Life.

twitter.com/dawnlaguens?re…
ICYMI, it was in reference to Priests for Life that he called contraception "abortion-inducing."

huffingtonpost.com/entry/brett-ka…
In PfL, "the question was whether a two-page form [the employer had to fill out to be exempted from providing birth control] was overly burdensome. And you decided that it was.

@maziehirono is handling Kavanaugh better than anyone else today.
In Priests for Life, filling out 2 pages was too much of a burden for the org that wanted to withhold BC.

But in Garza, "it was not too much to have this [pregnant] young woman [seeking an abortion] remain in custody and be forced to wait around for foster parents to be found."
"How can I reach any other conclusion than that you want to reduce women's reproductive rights?"

@maziehirono for president.
Kavanaugh is trying to tangle with Hirono on Korematsu.

This is not a good idea.
"Trump told DOJ to get him a version of the [Muslim] ban that would withstand constitutional challenge.

The most recent version is disturbing to me bc it says the president can claim it's based on national security and SCOTUS has said it won't look behind that articulation."
Hirono's got Kavanaugh on praising Rehnquist for heading away from the Warren Court's direction, claiming they enshrined policy as precedent.

"Which were the Warren Court decisions you thought needed to be righted by the Rehnquist Court? Was it Brown?"
"I'm interested in particular cases, not general types of cases."

"I think I referred to them in the speech. Thank you, senator."

Adjourning for dinner 'til 6:15 pm. Four senators left in the second round, and a third round has been requested.
Kennedy says @SenThomTillis has been keeping track of protests.

"It's happened over 200 times in the last three days. This is not how democracy is supposed to work."

Actually, it's exactly how democracy is supposed to work.
"Can you tell me what in God's name a penumbra is?"

"It refers to a test in the Glucksberg case...where unenumerated rights will be recognized if they are rooted in history and tradition."

Kennedy has an agenda here.
@SenJohnKennedy wants Kavanaugh to say unenumerated rights are limited to rights deeply rooted in history & tradition because abortion rights & gay rights are unenumerated rights--that is, not spelled out in the Constitution.

He wants Kavanaugh to roll these rights back.
Kavanaugh & co. could actually roll back reproductive and gay rights, not to mention a host of others, all at once.

dailykos.com/story/2018/6/2…
@CoryBooker is back!

"Do you know if any of the people preparing you have been in communication with Bill Burck?"

"Do you want to name specific people?"

Booker presses him as to whether Kavanaugh has a position on his documents being releated; he just keeps dodging.
Kavanaugh's new tack:

"I'm happy to have my recollection refreshed."

He's only pulling this reply out now that he realizes Dems are willing to release documents that will catch him in lies.
Kavanaugh owes me my youth back.
Kavanaugh won't even say a president's character is important.

What does that tell you about where the GOP is now?
@CoryBooker points out Trump's comment about Mexican federal judge, mocking disabled reporters, assaulting women --

"Can you say you have great respect for Donald Trump?"

"You said you had great respect for Bush when you were before this Senate last time."
"I'm asking because this is a president who talks about loyalty tests. Who said that he wouldn't have nominated his AG if he knew he was going to recuse himself," Booker says. "I'm just wondering what kind of loyalty is going to be required of you in this job."
"Do you credibly believe that if you agreed right now to recuse yourself .... that he would not hold your nomination up?"

"I don't think it's a big leap for the common person to suspect...it is understandable for people to suspect that...this is rigged."
"I think you should conclude that I have the independence required to be a good judge."

And I think the Nobel Committee should conclude that I would be a good Nobel Prize Winner.
@SenThomTillis reminds me why I worry for my home state.
It's @SenKamalaHarris!

"Yes or no, have you ever been part of a conversation with Kasowitz Benson Torres about Mueller or his investigation?"

"About his investigation? Are you referring to a specific person?"

"That is not the subject of the question, sir."

"The answer is no."
"Justice Kagan committed to recusing re cases she worked on as Solicitor General, Breyer committed to recusing in re Lloyd's of London...."

"So my question to you is will you commit to recusing in any case involving the civil or criminal liability who nominated you?"
"It would violate my judicial independence if I committed one way or another--"

"With all due respect, I have told you other nominees committed to recusal. Is it your opinion that they violated some code or ethical rule?"

"I don't know all the circumstances."
Kavanaugh wants to distinguish between required and discretionary recusals.

@SenKamalaHarris is unimpressed. And moving on to LGBTQ rights, thank God.
'My question was whether the Obergefell opinion was correctly decided?"

"Kennedy wrote the majority opinion in..."

"Can you please confine your reply to Obergefell?"

"I want you to understand it."

"I understand it."

He tries to read something. She shuts him down.
Kavanaugh literally answers a question about Obergefell with Masterpiece.

Then recites: "The days of treating gay and lesbians couples as second class couples as inferior in dignity and worth are over," per Kennedy in Obergefell.

"Do you agree with that statement?"
The answer is no from Kavanaugh.

"It is the precedent of the Supreme Court."

"Do you believe Obergefell was correctly decided?"

He tries to repeat himself again.

She cuts him off. "I agree it's an important statement. That's why I'm asking about it.
"Do you think that Obergefell was one of the great moments in the history of the Supreme Court of the United States [like Brown]?"

Dodge.

"Do you believe that was a great moment in the history of the court?

Dodge.
@SenKamalaHarris catches Kavanaugh refusing to address family separation.

She pivots to case discriminating against Chinese immigrants.

Should this be overturned? Have you talked about this case ever?

"I don't believe I have. I'm happy to be refreshed."

He's frayed.
"Do you believe POTUS can ban people from entering the US on the basis of race?"

[word mush]

"So you're not going to answer that."
Now @SenKamalaHarris is going to Hellerstedt:

"Was Whole Women's Health correctly decided, yes or no?"

"Consistent with--"

"You will not be answering this."

"You've said repeatedly that Roe is important precedent. I want to know what that really means for the lives of women."
"What do you believe is an unresolved issue?"

He just keeps going back to Casey. Reminder.

"Can Congress ban abortions nation-wide after 20 weeks of pregnancy?"

"That would require me to comment on potential legislation."

It's really Kavanaugh bingo: He only uses 8 phrases.
Now it's time for more unenumerated rights talk.

"Unenumerated rights...it means rights that are protected by the Constitution even if they are not specifically mentioned in the Constitution."
"What we're talking about is the right to vote, the right to have children, the right to control the upbringing of your children, the right to refuse medical care, the right to love the partner of your choice, the right to marry your partner, the right to have an abortion."
"You praised stemming the general tide of freewheeling expansion of unenumerated rights," Harris says. "You were praising the quest to end those unenumerated rights."

"My question to you is which of the rights I just mentioned do you want to put an end to or roll back?"
I am in love with @SenKamalaHarris.
Harris is on to Kavanaugh's ACA decision.

"One of your law clerks described your opinion in that case as a thorough take-down of the individual mandate."

He said "your opinion was 'a roadmap' for the dissenting justices to strike down the ACA."
"Couple points" is a phrase I could really do with seeing struck from the English language, especially as deployed by Brett Kavanaugh. Often as a prelude to more than two points.
@ChuckGrassley:

"The minority has requested a third round of questions; we've agreed to 8 minute rounds. @SenatorLeahy has given his 8 minutes to @maziehirono , so she will have 16 minutes."

Then the closed session.
Also Grassley:

Wanna talk more about Obergefell, Whole Women's Health, or family separation?

"That's okay, Mr. Chairman. I think we had a good dialogue."

It's @JohnCornyn then a five minute break.
Cornyn is such a 💩.

"My colleague from Minnesota called the Brennan Center a non-partisan group."

"I wouldn't call it that, I would call it a left-leaning, aggressive group, like NARAL."
Cornyn is playing some kind of wandering mental bingo now.

We've gone from cameras in courtrooms to the demise of civics knowledge to OJ Simpson. He's not even really asking Kavanaugh anything.

And I have opened my first beer.
Pretty excited for what @SenatorDurbin is going to do with his time but real quick.
Two R judges sided against Kavanaugh on the D.C. Circuit in a gun control decision.

"Unlike our dissenting colleague we read Heller straightforwardly."

"I need to know how you can reconcile your position with your opening statement to this committee--the rule of common sense?"
"It's all about precedent."

"You're alone!"

"Not anymore. Many other judges have agreed with the approach I set forth in that case. The opinion speaks for itself...."

Durbin's not having it.
"Wouldn't the common sense rule at a time when so many innocent people are being killed with guns suggest that 2A isn't a suicide pact?"

"Why do you set yourself aside from the mainstream thinking on this?"
NB: There's something funny going on with the Trump-Kavanaugh timeline.
"You said when you were nominated that you had witnessed firsthand this president's appreciation of the vital role of the judiciary."

"What, exactly, did you witness?"

Kavanaugh lists a bunch of times he interacted with Trump.
Oh, God, I forgot about @senorrinhatch. FFS.
Hatch wants to know what equal justice under the law means to Brett.

Brett is describing equal justice under the law fairly well.

Unfortunately he does not actually believe in or enforce that.
@SenFeinstein is up and ceding any unused time to @ChrisCoons.

"Judge you have very expansive views on presidential power....I think you believe a sitting president cannot be indicted, prosecuted, investigated, and should have the authority to fire a special counsel at will."
"In 2003, while you were in the White House Counsel's Office, SCOTUS decided to hear two cases involving U of M's efforts to increase racial diversity."

Kavanaugh helped Bush argue affirmative action is unconstitutional. Surprise!
"Please tell me what was your view on whether the administration should oppose U of M's efforts to create racial diversity on campus and do you support using race as one factor in admission to colleges and universities to increase racial diversity on campuses?"
"I was working for GWB, he wanted to increase racial diversity...he believed in using race-neutral means first...."

Sparing you the rest of the word vomit wherein he just talks about how dedicated George W. was to racial diversity.
DiFi goes for LGBT discrimination in the workplace!

"You received an email from your WH colleague who said you were walking point on faith-based issues."

"You said you'd mapped a prelim strategy for getting $ to religious orgs that discriminate against LGBT individuals."
"Can you explain your involvement in efforts to exempt orgs from non-discrimination laws?"

"I don't remember the details of that particular...I did speak to the Log Cabin Republicans about judicial nominations."

His memory fails at the strangest times!
"Were you involved in any other action to permit employment discrimination against LGBT individuals?"

"I don't remember anything specific on that, Senator."

Not-so-secret hope: DiFi has the receipts.
@SenatorLeahy is back up, and I'm here for it.

In Klayman v. Obama, you said collection of data wasn't a search--but even if it was, it was justified to prevent terrorism.

epic.org/amicus/fisa/21…
"The yr before you issued your opinion the Privacy and Oversight Board stated it could not name a single instance of a threat against the US in which the program made a difference."

"The program was not essential in deterring terrorist attacks."
Leahy in for the kill:

"I'm curious why you wrote an opinion saying it was a critical national security need when it was already found by national security people not to make a difference in fighting terrorists."
Leahy scores a point: Kavanaugh admits he couldn't have written it had the subsequent Supreme Court opinion preceded it. #KavaWrong
@SenSasse cannot stand being present and not talking.
@SenWhitehouse asks Kavanaugh if Leonard Leo of the Federalist Society is in his phone.

Yes, he's in his contacts. I'm just guessing speed dial.

thedailybeast.com/the-secrets-of…
"Am I to understand you have no objection to reporters disclosing conservations with you--you just don't want to speak for Judge Starr?"

Kava-stalling.
The concern is "you're a human torpedo being launched at the Mueller investigation so when you get to the Supreme Court you'll knock it out."

"How you've pushed back on that is saying US v. Nixon is one of the four best decisions in the Court's history."
"Here's my concern: Virtually every time if not every time you've mentioned Nixon you've dropped into your description of the holding that it was a trial court subpoena."
"I don't know if you dropped it in as a factual observation or if that was a loophole, an escape hatch, so when it comes you're in the position to say I said that to the Senate, that was a trial court subpoena but Mueller's coming with a *grand jury* subpoena."
"What, in that context, is your view of the trial court subpoena part of Nixon? Was that essential to the holding or just one of the facts of the holding?"

"Does it apply to a grand jury?"

"I think it's fair to ask are you using it as a factual observation or a qualification."
"What I've done is describe the holding..."

"Yeah, but you're the one who chose to use it as a counterpoint or evidence against concerns that you'd be a human torpedo to take out anyhting Mueller
would bring to the Supreme Court."
"I think it's fair for us since you've opened the door to ask if the central holding of Nixon applies equally to a trial court and a grand jury subpoena alike. Because if it doesn't I'm going to feel very deceived by how you've used this."
"This is whether you in this hearing have essentially been playing a trick on this committee by citing Nixon and not telling us that you did not mean it also applies to grand jury subpoenas."

@SenWhitehouse has reminded everyone who might have forgotten he's a damn good lawyer.
Gorsuch was a lot better at this than Kavanaugh.

They've got a very similar total level of white-boy smugness going on, though.
Oh, boy. @ChrisCoons has 9.5 minutes.

He heads directly for Glucksberg, the decision shooting down WA's assisted suicide law. It's been a topic today as the senators have pried into just how hostile Kavanaugh is to unenumerated rights.

supreme.justia.com/cases/federal/…
"Glucksberg says the only unenumerated rights rooted in the Due Process Clause are deeply rooted in the nation's history."

Kavanaugh interrupts to say for the fiftieth time he's saying just the same thing Elena Kagan said about Glucksberg.

I'm so angry.
Kavanaugh: Glucksberg cited Planned Parenthood v. Casey.

Because he can't resist reassuring the right that he's all about Casey, since it gives him room to functionally end access to abortion until he can overturn Roe v. Wade.
"Is judicial protection of abortion rights consistent with the Glucksberg test?"

"Again, I think it's important to underscore that the Glucksberg decision cited Casey, which reaffirmed Roe."

I am not reassured.
"Let's move to same-sex intimacy."

Kavanaugh is once again, as he did to Harris, repeating Kennedy's key passage from Obergefell and then listing everyone who joined with him and THEN listing every previous decision Kennedy wrote that is related.
Coons is the first I've seen really just shut Kavanaugh down by talking over him. Well done, sir.

He's on to Loving v. Virginia.

supreme.justia.com/cases/federal/…
"Is a right to marriage deeply rooted in our history, tradition, and practices?"

"A couple things..." And Kavanaugh is off just talking about the five Kennedy decisions all over again.

"Were they all correctly decided?"

"None of the 8 currently sitting justices..."

FFS.
There is not enough beer in the world.

Whiskey, maybe.
"You've said, 'all roads lead to Glucksberg'--this gives me concern."

"What I've read about how it has and hasn't been applied, I think the Glucksberg case is better at rejecting claims of constitutional rights than accepting them. And I think it's a blunt instrument."
"If applied that way it could blow up all rights founded on substantive due process. It could blow up access to contraception, intimacy, marriage."
"I worry that you reveal you don't share the view of our Framers, in particular re 14A, that constitutional rights exist to right historical wrongs not entrench them."

"This is a test that is just not up to vindicating our country's greatest ideals."

Touché, @ChrisCoons.
@senatormikelee's most probative question: Why do you take notes with a fat Sharpie?
Now it's @amyklobuchar.

"You went beyond the bounds of what the parties had argued to reach a constitutional issue--you found the First Amendment protects providers' rights to exercise editorial discretion."

Kavanaugh claims it was raised in "some of the briefs in the case."
FWIW: Courts are supposed to avoid constitutional issues even when directly presented unless absolutely necessary; going beyond what's before you to get to a constitutional issue is bad judging 101.
In a 2016 book review Kavanaugh advocated "jettisoning" the canon of constitutional avoidance.

If I were a buzzword happy Republican fond of inventing quasi-legal terms, I'd call him a classic case of an enthusiastic judicial activist.
Kavanaugh just recalled a case that he dealt with while clerking.

There's nothing wrong with his memory unless he's trying to avoid a lie.
Klobuchar calls BK out on favoring de novo review of agencies' interpretations of laws, which means judges ignore everything previous and can strike regs willy nilly.

THIS IS A BIG DEAL.

Agencies have experts; judges are not experts on anything but law.
dailykos.com/stories/2018/6…
It's my boo, @SenBlumenthal.

"I'd like you to tell me that i'm wrong; I'd like you to tell me that you'd put aside your Heller II dissent and as a member of the SCOTUS you'd uphold a ban on an assault weapon."

"I can't make a commitment about a future case."
"Gov't interest and public safety never factored into your test in Heller II, did they?"

TL;DR? Kavanaugh thinks assault weapons are "common use," would uphold anything else he thinks constitutes a common use weapon.

If assault weapons are "common use," what weapon isn't?
Kavanaugh, weakly: School violence is bad!

Blumenthal: "We all hate school violence. Which is why I'm asking you to reconsider your decision [upholding the legality of assault weapons]."
"We now face the specter of a new weapon: 3D printable plastic guns that are untraceable and undectable."

"There is no historic ban; they were unimaginable."

"With all due respect I ask you to say here that you will reconsider a test that is out of touch with reality."
Kavanaugh is now claiming to have grown up in an "urban slash suburban environment."

Blumenthal has finished his sentence as he attempted to recycle his "I lived in the murder capital of the country" language.
Again.

A 1L would be embarrassed to claim that expansive executive power is the same as prosecutorial discretion.

Kavanaugh doesn't care, do you?
@maziehirono, also an excellent legal mind.

"Do you believe a justice should be able to make it easier to overturn precedent simply by giving notice that they dislike that precedent?"

That's what Alito did to take down Abood in Janus. He claimed that there'd been "notice."
One reason this is really important: Gorsuch has already started doing this w/r/t LGBT rights with a nasty dissent in a case surrounding same-sex adoption.

ICYMI, here's a relevant piece. dailykos.com/stories/2018/8…
"Bruh, the NRA is spending $$$ to get you confirmed."

"Why do you think they think you're going to provide the crucial fifth vote?"

Kavanaugh emits streams of syllables and the words "against" and "for."
"Obviously the NRA doesn't think you're so independent when it comes to gun legislation. I think these ads speak for themselves."
"You said if a type of firearm was widely owned you'd deem any limitation on widely owned guns to be unconstitutional."

"If a large enough number of people downloaded instructions for 3D-printed guns and therefore owned them would they be constitutional?"

Loving @maziehirono.
Oh, God. It's the @BenSasse show again.

He mentions Aristotle or Plato or someone similar every time.
@CoryBooker: "You wouldn't fire someone for the color of their skin, right?"

"You would not fire someone because of their gender obviously?"

Kavanaugh is aching to reiterate how he practices affirmative action though he doesn't believe in it legally. Book stops him.
"So you know it would be wrong for someone else to fire someone for the color of their skin? It would be morally wrong? Just person to person?"

"Would it be wrong to fire someone if it was, 'hey, I just found out this person is gay'?"
"Senator, in my workplace I hire people bc of their abilities."

"Do we have a legal right to fire someone for being gay?"

"As I'm sure you're aware the scope of workplace discrimination is being litigated right now...while I'd love to talk to you about this more."

Another lie.
"There's a real fear that [if confirmed] folks who are married right now will not be able to carry on their marital bonds. In a majority of American states you can fire someone for being gay. I guess you're not willing to tell me if you personally, morally think that's wrong?"
"I just wanted to be clear: You won't give me a moral answer because of cases pending."

"Did you have any involvement in Bush's effort to pass a constitutional amendment to ban same sex marriage."

Waffling from Kavanaugh.
"I was just staff secretary..."

"Did you ever express *your* opinions about same sex marriage? I don't have those documents, but they will come out."

Kavanaugh quickly says he just can't remember. Now he's just saying there was debate.

Also, sky is blue.
"Do you recall your opinion now on same-sex marriage?"

Brett just tries to recite Obergefell again.

Booker asks if he's ever officiated a gay marriage, and Kavanaugh seems shocked. Maybe insulted, even.
Booker points out that the right to trial is all but dead.

True. Fact.

acslaw.org/acsblog/the-ri…
@SenKamalaHarris is back, and she'd like to know if the president can pardon his friends and target his enemies.

Kavanaugh's not even fighting it: It needs further study.
Kavanaugh is still dodging accountability for espousing the idea that it's inevitable that the government will soon only see one race.

"Will the five justices decide when we've arrived at that point? Or will it be like Brown v. Board where it's unanimous?"

Waffling.
"What do you imagine as being the ideal?"

"The ideal of every case is nine! That's why I talk about a Team of Nine!"

Someone hold my beer and hand me Pepto.
"If the Court decides we're all one race, does that mean the gov't shouldn't fund historically black colleges and universities?"

"I think HBCUs are very important..."

"Partly because we recognize the importance of African American students having equal access to higher ed."
Brett's just listing things he knows about HBCUs right now, and it's painful.
In 1999, you thought we'd all be one race in the eyes of the government in 10-25 years.

So, what happens to the Civil Rights Act of 1964 if/when we arrive at that place?

"I think those are two different issues...books...race...illegal."
@SenThomTillis thinks he's an LGBT rights champion. Not totally sure he gets "gender identity."

He's giving Kavanaugh the out of saying it's Congress, not the Court, that's responsible for progress on this front.

equalitync.org/latest/news/se…
Grassley's closing! Maybe? Sort of!?
Closing that tab felt so good. Day 3 update for tomorrow AM, folks!
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