The third day of Kavanaugh hearings is underway. Booker is currently telling the committee he'll release some emails that have been marked "committee confidential." (Feel free to mute this thread.)
Cornyn just described Booker's announcement as "outrageous" and compared it to releasing classified information.
Cornyn, to Booker: Running for president is "not an excuse to violate the rules of the committee."
I don't know what it portends for the final outcome, but this is an indisputably rockier set of hearings than Gorsuch had last year.
Feinstein: "No Senate or committee rule grants the chairman unilateral authority to designate documents committee confidential."
Durbin re: Booker's threat: "If there's going to be some retribution against the senator of New Jersey, count me in."
Hirono: "Count me in, too."
Grassley, getting a little frustrated at his colleagues: "You want to give up your emails right now? Make them public? I don't think you do."
Lee: "These documents are not ours. They belong to someone else."
Coons responds: "These are the American people's documents."
Booker now says he wouldn't be violating Senate rules because there is no actual rule.
Booker: "This is about the closest I'll ever have in my life to an 'I am Spartacus' moment."
Cornyn reads Senate Rule 29.5 (I believe) that he says allows expulsion for releasing confidential documents. Booker: "Bring it."
Schumer isn't on Senate Judiciary, but he's weighing in via Twitter:
Grassley ends the committee's discussion and moves on to questions. Protesters begin shouting one by one.
On cameras in SCOTUS, Kavanaugh draws a distinction with oral arguments and decision announcements. (Having live audio during opinion announcements, at a minimum, would be awesome.)
Feinstein is up now and asking Kavanaugh about the "committee confidential" Roe v. Wade email in the NYT story this morning.
Kavanaugh says his edit in the email was focused on the views of legal scholars, says he was concerned about accuracy. On broader point, he repeats comments that Roe is an "important precedent."
I took a quick look at what Kav said on abortion, Roe, and Casey during yesterday's hearing here: newrepublic.com/article/151074…
Meanwhile, Booker just posted the committee confidential emails that he promised to release earlier this morning: scribd.com/document/38798…
Here's the passage that Booker mentioned last night where Kavanaugh describes the DOT regulation at issue in Adarand Constructors v. Pena as a "naked racial set-aside." 
For clarity, here's Justice O'Connor's description of the DOT regulation to which Kavanaugh was referring: law.cornell.edu/supremecourt/t…
Kavanaugh, on last night's Kasowitz/Mueller's Qs from Harris: "I don't recall any conversations of that kind with anyone at that law firm."
Hatch, in reference to last year's Microsoft Ireland case: "How do we interpret our laws in light of changing technologies?"
Kav: "I think the job of the judge is to focus on the words written in the statute."
Kav: "I think the job of the judge is to focus on the words written in the statute."
More committee confidential docs, this time from Hirono:
Hatch now asking Kavanaugh about mens rea reform, a major fissure between Ds and Rs on criminal-justice reform. Wrote more on this last year: theatlantic.com/politics/archi…
Kavanaugh did not directly address that fissure, of course, but recited cases in which he questioned sentencing decisions where the defendant didn't have full knowledge of the offenses.
Leahy is up now, returnning to the Manny Miranda line of questioning he raised yesterday. Context from then: motherjones.com/politics/2018/…
Leahy: Has anyone told you what Democratic senators have been advised to do by our staff at this hearing? Kav notes that senators mentioned relevant issues in private meetings.
Leahy: "Why would you ever be asked to keep secret Democratic talking points if they were legitimately obtained?" Kav says the materials didn't raise red flags with him.
The committee is back from its lunch recess. Durbin is up now.
Durbin: "We have to take your nomination in the context of this moment in American history."
Durbin recites Dem concerns about Kav's views on executive power, especially with Morrison v. Olson, the ruling that upheld the Independent Counsel Act.
Kavanaugh notes that the Independent Counsel Act lapsed in 1999 after Democrats and Republicans both grew uncomfortable with it. (Mueller operates under a DOJ regulation.)
Durbin: "Do you understand where we are as a nation now?"
Kavanaugh: My record shows my commitment to the independence of the judiciary, adherence to the rule of law. "Nobody is above the law in the United States."
Durbin: "What you've said is what I want to hear." But he still says he's concerned about Kav's past comments on Morrison and the unitary executive theory.
Durbin returns to Kav's 2006 testimony, which he also covered yesterday. "I was not involved in crafting those policies," Kavanaugh reiterates.
This is something Dems have struggled with re: this line of questions. Not all involvement is equal.
Lee brings up last night's Kasowitz questions from Harris, noting that more than 350 lawyers work there.
Lee: Can you rule out possibility you have close friends, law school classmates at that firm? Kav says he doesn't know who works there other than Joe Lieberman, which he learned after last night.
Kavanaugh: "The president is not above the law. No one is above the law in the United States of America."
Lee: "As a practical matter, who investigates the president?" Kavanaugh: Traditionally, attorney general appoints a special counsel. We saw that in Watergate and other times in particular matters with perceived conflict of interest.
Lee asks if Kav thinks Morrison v. Olson applies only to the independent counsel statute. Kavanaugh says he does. "A one-off statute that no longer exists." (Mueller's power comes from DOJ regulations.)
Lee: What's difference between indep. counsel act and DOJ special counsel regulations? Kavanaugh: Appointment method, removal method, jurisdiction, etc.
Lee is getting some in-depth answers on the special counsel regulation from Kavanaugh, who appears to view it as sound. It's received some legal challenges from Mueller targets.
The committee breaks for lunch. Whitehouse will be up when they return in ~30 mins.
An update in the Booker document episode this AM:
Whitehouse is up now, first asking Kavanaugh if he was a source for reporters' stories when he worked on the Starr investigation. Kav declines to release reporters from their confidentiality obligations, says that's up to Starr.
Whitehouse moves on to recusal, breaking out a diagram of the SCOTUS case Caperton v. A.T. Massey Coal Co.
In Caperton, the court held that elected judges had to recuse themselves from cases involving major donors. nytimes.com/2009/06/09/us/…
Kavanaugh notes that the ruling focused on elected judges, implying that it doesn't really apply to his nomination by Trump. Whitehouse moves on.
Whitehouse asks Kavanaugh about the 1998 memo where he vents about Clinton's "smear campaign" against Starr. Kav declines to discuss "current events."
To be clear, the "current events" part is Kav recognizing that the question was really about Mueller and Trump. Whitehouse pressed him on it, but not too much.
Cruz is letting Kavanaugh expound upon his judicial philosophy in general. Kav is currently discussing why he's an originalist and what that means.
Grassley, intervening before Klobuchar goes up, is trying to do some clean-up on Kavanaugh's involvement in the Pryor nomination in 2004.
Grassley: "I have colleagues trying to insinuate that you interviewed Judge Pryor."
Grassley: "I have colleagues trying to insinuate that you interviewed Judge Pryor."
This is what Grassley was referencing:
Missed this earlier, which is now getting attention on Twitter. I wouldn't be surprised if a senator follows up on this soon.
Klobuchar turns to NYT Co. v. Sullivan, which set the "actual malice" standard for libel cases against the press.
Kavanaugh: That precedent has been applied over and over again. "I'm not aware of much effort to deviate from that standard." (The president is not a fan of it.)
Kavanaugh: That precedent has been applied over and over again. "I'm not aware of much effort to deviate from that standard." (The president is not a fan of it.)
Klobuchar asks whether courts should recognize a reporters' privilege. Kavanaugh says he took part in a case asking that question, but the dispute was settled before he could issue a ruling. Calls it a "very interesting issue and question of precedent."
What about protecting a confidential source? Kavanaugh reviews precedent and the civil/criminal divide. "I understand the role of journalists bringing some light to American democracy."
Sasse and Kavanaugh are using Plessy v. Ferguson to have an extensive discussion about how to overturn a major precedent that was "wrong the day it was decided," and how Marshall undermined racial segregation through smaller cases before going for Brown v. Board.
Coons: When Nixon fired Cox, did he violate the law or the Constitution? Kavanaugh: Can't recall specifics of the Cox regulations at the time, notes Jaworski had addtl. protections.
Coons: Are you aware of any justice questioning U.S. v. Nixon since it was decided? Kavanaugh: No, and I've called it one of the court's four greatest moments.
Kavanaugh effectively says he agrees with the Watergate tapes case holding: "When I say something is the greatest, that means I agree with it." But won't answer hypotheticals about applying U.S. v. Nixon (for obvious reasons).
Kavanaugh says he thinks his remarks on U.S. v. Nixon from 1998/1999 have been seriously misconstrued.
Coons: If U.S. v. Nixon was rightly decided, was Morrison v. Olson rightly decided? Kavanaugh: I've associated myself with Justice Kagan's views on it.
Morrison upheld the independent counsel act; Kagan praised Scalia's dissent.
Morrison upheld the independent counsel act; Kagan praised Scalia's dissent.
While Coons and Kavanaugh chat about executive power, Booker releases a few more pages of records marked "committee confidential"
15 minute break. Pretty sharp contrast: Kavanaugh is more than happy to explain his views on U.S. v. Nixon, Morrison v. Olson, and the special counsel regs. Roe/Casey, for their part, are described as precedents that have been reaffirmed multiple times.
Flake asks an interesting question: Are there any of your decisions that you've reconsidered since then?
Kav says he changed his view on what counts as the laws of war for a statute after hearing a different view at oral arguments in a later case.
Kav says he changed his view on what counts as the laws of war for a statute after hearing a different view at oral arguments in a later case.
Flake: Would you describe yourself as technologically literate? (I was hoping he'd ask if Kavanaugh has a secret Twitter account like some of the current justices do.)
Kavanaugh responds by discussing the Carpenter case and what it means when the government obtains all your data. "It recognizes that change in our understanding of privacy."
Blumenthal is up now, opens by asking about the Roe v. Wade email published by the NYT this morning. "Did anyone suggest to you that I might ask about this email during the break [yesterday]?"
Kavanaugh: "I'm not remembering." Also says he doesn't remember whether anyone showed him the email yesterday.
Kavanaugh: I've had no inappropriate discussions with anyone.
Blumenthal: Have you discussed it at all?
Kav: "If you're walking around in America, people are discussing it." Adds: "I've never suggested anything about my views about anything."
Blumenthal: Have you discussed it at all?
Kav: "If you're walking around in America, people are discussing it." Adds: "I've never suggested anything about my views about anything."
Blumenthal: Have you ever talked about the special counsel's investigation with Don McGahn or anyone in the White House?
Kavanaugh: "I'm not remembering any discussions like that." Suggests it may have come up in mock hearings.
Kavanaugh: "I'm not remembering any discussions like that." Suggests it may have come up in mock hearings.
Kavanaugh is asking Blumenthal repeatedly to clarify the question, noting he's alternatively asked about Mueller and the investigation. Blumenthal says he's dodging and discussing the question.
Blumenthal: What about Kasowitz Torres? Kav: "I don't remember anything like that." Says firm "no" when asked if he discussed Mueller with Kasowitz or Ed McNally, a former Bush-era associate who works at the firm.
Kav's hesitance on whether he discussed Mueller with WH officials is a Rorschach test of sorts. Many Dems will see it as evasiveness. But Kav's also spent all day getting grilled for how he answered these types of Qs twelve years ago.
A definitive answer:
Hirono up now. She calls his Minnesota Law Review article a "pretty big signal" to the president about how he'd view a criminal investigation into the president.
Booker is challenging Kavanaugh's assertion that he's never weighed in on whether a sitting president can be indicted, and he's got props.
Booker is pressing Kavanaugh on whether he has the "greatest respect" for Trump, as he said he had for Bush. Kavanaugh is refusing to answer because of its political nature.
Booker says he's building to wonder what kind of loyalty Kavanaugh has to Trump. Notes that Kavanaugh wasn't added to Trump's lists until after Mueller's appointment.
I'm not sure why Booker keeps pressing him on the "greatest respect" line in particular, but it'll be interesting to see how/if Trump responds to Kav's refusal to answer it.
Kavanaugh: "My only loyalty is to the Constitution. I've made that clear. I'm an independent judge."
After Booker wraps up, he tweets out a link to more documents marked "committee confidential." This batch seems to involve judicial nominees and abortion.
Booker's latest batch of emails includes one where Kavanaugh forwarded an article that describes Roe as "just bad law."
Harris: Were you a party to a conversation with a Kasowitz law firm employee that occured regarding special counsel Mueller's investigation?
Kavanaugh wants to know who she's talking about. After she doesn't say, he says, "The answer's no."
Kavanaugh wants to know who she's talking about. After she doesn't say, he says, "The answer's no."
And she moves on to her next question. No big reveal?
Kavanaugh again declines to recuse himself from Trump-related cases after Harris cites Kagan, Breyer commitments they would recuse themselves at confirmation hearings.
Harris: Can you comment on your personal opinion whether Obergefell was correctly decided? Kavanaugh begins explaining Romer v. Evans and then Masterpiece Cakeshop.
Harris presses him again. He declines to answer, citing judicial independence.
Harris: You've said Brown was one of the great moments in the court's history. Do you think Obergefell was a great moment too? Kavanaugh doesn't say, quotes Kennedy instead.
Kavanaugh says he can't answer Harris's question about family separations because it's a matter of pending litigation.
Harris asks whether Kavanaugh thinks the Chinese exclusion case in the 1880s was correctly decided. Kav declines to answer.
Kavanaugh declines on similar grounds to answer whether Whole Women's Health v. Hellerstadt, the Court's most recent abortion case, was correctly decided.
Third round of questions begins now. Each senator gets 8 minutes. Grassley says Leahy gave Hirono his time, so she'll get 16.
Hirono asks Kavanaugh about a $1 million NRA ad buy that asserts he'll protect Second Amendment rights. Kav replies that different groups ran a lot of ads and that they have the right to do so.
Sasse: "Judge, you're in the home stretch." Says his 7-year-old kid wanted to know if Kavanaugh is afraid of poisonous spiders, but won't ask him to answer that.
Sasse asks Kavanaugh instead to discuss the history of the First Amendment, thereby denying the American people of their right to know Kav's views on poisonous spiders before he joins the high court.
Kavanaugh's answers are more interesting and slightly more revelatory when he's asked about American history instead of just cases. I wish someone had/would ask him about Reconstruction, for example.
Kavanaugh, citing judicial independence and pending cases, declines to answer Booker's line of thought on whether gay workers can be fired for their sexual orientation.
Booker and Kavanaugh are locked in a weird tango where the senator asks questions he knows Kav won't actually answer and Kav gives answers he know Booker will cut off because he's running out of time.
It's a strangely upbeat, strangely aggressive back-and-forth. Some of these questions, like Booker's riff right now on how we don't really have jury trials any more, would've been nice to hear more on.
An interesting bit of trivia I hadn't put together until just now: Booker says he'll give Kav a copy of Michelle Alexander's The New Jim Crow. Kav notes he clerked alongside Alexander on SCOTUS.
Cornyn takes a moment to follow up on the decline in jury trials that Booker mentioned, asking if that was really true. Booker briefly explains that it's because of plea bargaining, which is both true and a big problem: nybooks.com/articles/2014/…
I'm a little surprised Cornyn didn't know about this, since it's a pretty well-known phenomenon in legal circles.
Harris is up, asking Kavanaugh about affirmative action and when he thinks courts should say its no longer necessary (and whether they should).
Harris: If the court decides we're all one race, does that mean the government shouldn't fund HBCUs? Kavanaugh doesn't directly answer but describes why HBCUs are important.
Harris's time is now up. No mention whatsoever in her third and final round about whether Kavanaugh discussed the Mueller case with anyone at the Kasowitz firm. Really bizarre.
Tillis: There are 350 lawyers at the Kasowitz firm. "Do you know all of them?" Kavanaugh: No. Says he also didn't discuss the case with Ed McNally.
Grassley, wrapping up: "It seems to me that you made a powerful case for confirmation."
And that's it. Kavanaugh clocked in just over 24 hours of questioning over the last two days. Next up tomorrow are slates of outside witnesses, both for and against his confirmation.
Here's my quick wrap of the day's events, with more to come tomorrow and in the days ahead. Thanks for not unfollowing! newrepublic.com/article/151095…
