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.
It's a doozy.
He's doing it because he wants to prove to the public that the documents being withheld have nothing to do with national security.
"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.
"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 Lest silence imply consent--I think that the rule is as valid as if the Chairman announced he's repealed the rule of gravity."
"Who is Bill Burck? All I know is that he was once an assistant to the nominee."
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 🔥.
"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."
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."
He's just going on about how THEY wouldn't want THEIR emails released.
It's not a violation of Senate rules, just Grassley's.
Come at us, says Booker w/Coons, Whitehouse, Durbin, Blumenthal, Hirono, Feinstein.
"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?"
"The belong to someone else."
He's picking up Grassley's line about how they should all have their email exposed.
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.
"I was born at night, but not last night."
Again, zero doubt Kavanaugh has an incredible memory. That's what makes his selective amnesia so obscene.
"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?
"So how did the Court determine that it was?"
Kavanaugh just keeps going back to try to explain Roe.
"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."
Kavanaugh is just repeating himself to a degree that is making my ears bleed.
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.
Kavanaugh pretends not to understand.
"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."
He repeats himself a third time before Whitehouse squeezes the "no" out of him.
@SenWhitehouse calls him on it, but he just pretends that's a normal way to refer to guidance and opinions within DOJ.
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?
I can't think of a 1L who'd try to make a claim like this.
He's asking in the context of the ACA.
These are the stakes.
I have read his cases. Kavanaugh is not for the little guy; he's the bad guy.
"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..."
"[blah, blah] we stay out of politics."
"So any statement from the president is political to you and you will not respond."
Hirono is owning Kavanaugh on case law.
"Where in the decision do they rely on the 14th Amendment?"
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.
@maziehirono is handling Kavanaugh better than anyone else today.
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."
@maziehirono for president.
This is not a good idea.
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."
"Which were the Warren Court decisions you thought needed to be righted by the Rehnquist Court? Was it Brown?"
"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.
"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.
"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.
He wants Kavanaugh to roll these rights 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.
"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.
What does that tell you about where the GOP is now?
"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 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."
And I think the Nobel Committee should conclude that I would be a good Nobel Prize Winner.
"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."
"So my question to you is will you commit to recusing in any case involving the civil or criminal liability who nominated you?"
"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."
@SenKamalaHarris is unimpressed. And moving on to LGBTQ rights, thank God.
"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.
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?"
"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 believe that was a great moment in the history of the court?
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."
"So you're not going to answer that."
"Was Whole Women's Health correctly decided, yes or no?"
"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."
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.
"Unenumerated rights...it means rights that are protected by the Constitution even if they are not specifically mentioned in the Constitution."
"My question to you is which of the rights I just mentioned do you want to put an end to or roll back?"
"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."
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.
"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."
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.
"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?"
"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.
"Why do you set yourself aside from the mainstream thinking on this?"
"What, exactly, did you witness?"
Kavanaugh lists a bunch of times he interacted with Trump.
Brett is describing equal justice under the law fairly well.
Unfortunately he does not actually believe in or enforce that.
Kavanaugh helped Bush argue affirmative action is unconstitutional. Surprise!
Sparing you the rest of the word vomit wherein he just talks about how dedicated George W. was to racial diversity.
"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."
"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!
"I don't remember anything specific on that, Senator."
Not-so-secret hope: DiFi has the receipts.
"The program was not essential in deterring terrorist attacks."
"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."
"How you've pushed back on that is saying US v. Nixon is one of the four best decisions in the Court's history."
"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."
"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."
@SenWhitehouse has reminded everyone who might have forgotten he's a damn good lawyer.
They've got a very similar total level of white-boy smugness going on, though.
Kavanaugh interrupts to say for the fiftieth time he's saying just the same thing Elena Kagan said about Glucksberg.
I'm so angry.
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.
"Again, I think it's important to underscore that the Glucksberg decision cited Casey, which reaffirmed Roe."
I am not reassured.
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.
He's on to Loving v. Virginia.
"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..."
"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."
"This is a test that is just not up to vindicating our country's greatest ideals."
"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."
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.
There's nothing wrong with his memory unless he's trying to avoid a lie.
THIS IS A BIG DEAL.
Agencies have experts; judges are not experts on anything but law.
"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."
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?
Blumenthal: "We all hate school violence. Which is why I'm asking you to reconsider your decision [upholding the legality of assault weapons]."
"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."
Blumenthal has finished his sentence as he attempted to recycle his "I lived in the murder capital of the country" language.
A 1L would be embarrassed to claim that expansive executive power is the same as prosecutorial discretion.
Kavanaugh doesn't care, do you?
"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."
ICYMI, here's a relevant piece. dailykos.com/stories/2018/8…
"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."
"If a large enough number of people downloaded instructions for 3D-printed guns and therefore owned them would they be constitutional?"
He mentions Aristotle or Plato or someone similar every time.
"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.
"Would it be wrong to fire someone if it was, 'hey, I just found out this person is gay'?"
"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."
"Did you have any involvement in Bush's effort to pass a constitutional amendment to ban same sex marriage."
Waffling from Kavanaugh.
"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.
Brett just tries to recite Obergefell again.
Booker asks if he's ever officiated a gay marriage, and Kavanaugh seems shocked. Maybe insulted, even.
Kavanaugh's not even fighting it: It needs further study.
"Will the five justices decide when we've arrived at that point? Or will it be like Brown v. Board where it's unanimous?"
"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.
"I think HBCUs are very important..."
"Partly because we recognize the importance of African American students having equal access to higher ed."
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."