DEMOCRATS WITH SPINES, NOBODY SAW THIS COMING!!! Thank you Sen Cory Booker D NJ and Sen Mazie Hirono D HI for releasing some of kavanaugh's documents that were being withheld from the public because they expose the neo-nazi fascist judicial agenda kavanaugh plans to impose on America from his seat on the U.S. Supreme Court. From NPR & PBS NEWSHOUR.....
Senators Dispute Status Of Released Documents As Questioning Of Kavanaugh Wraps Up
Updated at 7:40 p.m. ET
Supreme Court nominee Judge Brett Kavanaugh weathered another long day of questions from the Senate Judiciary Committee Thursday.
He was pressed once again for his views on presidential power.
Sen. Dick Durbin, D-Ill., sought a promise from Kavanaugh that he would be willing to serve as a check on the president who nominated him.
"Give us some reassurance about your commitment to the democratic institutions in this country, in the face of a president who seems prepared to cast them aside," Durbin said. "Whether it's voter suppression, the role of the media — case after case, we hear this president willing to walk away from the rule of law in this country."
"No one is above the law," Kavanaugh replied. "I've made clear in my writings that a court order that requires a president to do something or prohibits a president from doing something under the Constitution or laws of the United States is the final word in our system."
Sen. Mazie Hirono, D-Hawaii, complained that the Supreme Court had been unduly deferential to President Trump this summer when it upheld his travel ban, despite what she called the administration's "obviously bogus" justification. She pressed Kavanaugh on when the high court should question a president's national security claims.
"National security is not a blank check for the president," Kavanaugh said, pointing to a number of cases in which the court had overruled the administration. "Even in the context of wartime, the courts are not silenced. Civil liberties are not silent."
Kavanaugh told lawmakers he is so committed to judicial independence, he stopped voting in national elections after he became a judge.
Sen. Kamala Harris, D-Calif., again asked Kavanaugh if he'd ever spoken with anyone at the law firm of Trump's personal attorney Marc Kasowitz about special counsel Robert Mueller's investigation, renewing a line of questioning she'd opened Wednesday night.
"The answer is no," Kavanaugh said.
As he's done throughout the hearing, Kavanaugh declined to answer a series of questions from Harris about issues that might come before the high court, including abortion, same-sex marriage and immigration.
Kavanaugh was asked repeatedly during the televised hearing about whether he would support opening the Supreme Court to TV cameras. He promised to keep an open mind, but said he would also want to consider the views of the eight current justices.
Thursday's session began with Democrats on the committee in open revolt over the handling of documents from Kavanaugh's tenure in the George W. Bush White House.
Some documents have been withheld altogether. Others have been provided to the committee on "confidential" terms, meaning senators can see them but they can't be made public.
Democrats object that the confidential label has been applied to a wide swath of records, many of which contain no personal or sensitive information. They also complain that classification decisions were made by former President Bush's attorney, William Burck, a former deputy of Kavanaugh's.
Sen. Cory Booker, D-N.J., released some of the confidential documents Thursday morning. Sen. Patrick Leahy, D-Vt., and Hirono also released "confidential" documents, drawing a stern rebuke from Sen. John Cornyn, R-Texas, who called them "irresponsible and outrageous."
"This is no different from the senator deciding to release classified information," Cornyn said Thursday morning. "No senator deserves to sit on this committee, or serve in the Senate, in my view, if they decide to be a law unto themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification."
For all the theatrics on both sides, the debate over documents fizzled by Thursday afternoon, once it became clear their release had been authorized by Bush's attorney overnight.
"We cleared the documents last night shortly after Senator Booker's staff asked us to," Burck said in a statement. "In fact, we have said yes to every request made by the Senate Democrats to make documents public."
And an aide to Grassley told NPR that "counsels for the senators who requested waivers last night/this morning for particular documents were notified that their requests had been honored beginning at around 3:50 this morning."
But a spokesperson for Hirono said the senator was not informed that the documents released by her office Thursday morning had been approved to be made public.
It is not clear whether Booker knew the documents he released had already been approved before his statements Thursday morning at the beginning of the hearing — when he said that his decision to release the documents was a form of civil disobedience and that he was aware he was risking expulsion from the Senate for making the documents public.
"Cory said this morning that he was releasing committee confidential documents, and that's exactly what he's done," Booker spokeswoman Kristin Lynch said in an email to NPR. "Last night, he was admonished by Republicans for breaking the rules when he read from committee confidential documents. Cory and Senate Democrats were able to shame the committee into agreeing to make last night's documents publicly available, and Cory publicly released those documents as well as other committee confidential documents today. And he'll keep releasing them because Republicans are hiding Brett Kavanaugh's record from the American people."
The documents released by Booker include a batch of emails concerning racial profiling, affirmative action and other race-conscious government programs.
In a 2002 email, Kavanaugh wrote that security procedures adopted in the wake of the Sept. 11 attacks should ultimately be race-neutral, though he acknowledged that developing such procedures could take time. Others in the White House suggested racial profiling might be legally justified if it enhanced security.
In a 2001 email, Kavanaugh addressed a legal challenge to an affirmative action program within the Department of Transportation.
"The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what in reality is a naked racial set-aside," he wrote.
Kavanaugh had sidestepped questions from Booker on Wednesday night about the circumstances in which government can and cannot use race-conscious measures to address past discrimination.
He conceded that hopes he expressed nearly two decades ago for a color-blind society have not been fulfilled.
"We see on an all-too-common basis that racism still exists in the United States of America," Kavanaugh said. "Our long march to racial equality is not over."
Separately, The New York Times reported on leaked emails from the "confidential" file. One is an email drafted by Kavanaugh in 2003, in which he questioned whether the Supreme Court's 1973 Roe v. Wade decision legalizing abortion should be described as "settled law of the land."
Pressed on that email by Sen. Dianne Feinstein, D-Calif., on Thursday, Kavanaugh explained he was simply summarizing views of legal scholars and not offering his own view.
On Wednesday, Kavanaugh said he understands the weight that many people attach to Roe. But he declined to say whether that case was properly decided.
Throughout the hearing, Kavanaugh has avoided commenting on Trump's behavior, despite urging from Senate Democrats.
"I'm not going to get within three zip codes of a political controversy," he said Thursday, when Sen. Richard Blumenthal, D-Conn., asked him about Trump's attacks on judges, including Supreme Court Justice Ruth Bader Ginsburg.
"I've spoken about my respect and appreciation for the eight justices on the Supreme Court," Kavanaugh said. "I know they're all dedicated public servants who have given a great deal to this country."
Barring surprises, Kavanaugh appears likely to win confirmation in time to take his place alongside those eight justices when the Supreme Court begins its fall term next month.
More Stories From NPR
Release of emails and documents rock Day 3 of Kavanaugh hearing
It was another day of discord in the Supreme Court confirmation hearing of Brett Kavanaugh, as the release of some of Kavanaugh’s documents and emails from the George W. Bush administration sparked a heated exchange. Judy Woodruff gets analysis from Lisa Desjardins, Marcia Coyle of The National Law Journal, former solicitor general Paul Clement and former acting solicitor general Neal Katyal.
Read the Full Transcript
- Judy Woodruff:We return to the confirmation hearing of Brett Kavanaugh to be the next Supreme Court justice.It was another day of discord, this time centering on abortion and race.Democrats publicly released a few dozen of Judge Kavanaugh’s documents and e-mails from his time in the George W. Bush administration. A lawyer for President Bush had previously deemed those e-mails confidential, meaning senators could read, but not talk about them.The release also sparked a heated exchange among senators.
- Sen. Cory Booker, D-N.J.:I’m going to release the e-mail about racial profiling. And I understand that that — the penalty comes with potential ousting from the Senate.I’m releasing it to expose that, number one, the e-mails that are being withheld from the public have nothing to do with national security, nothing to jeopardize the sanctity of those ideals that I hold dear.
- Sen. John Cornyn, R-Texas:Running for president is no excuse for violating the rules of the Senate or of the confidentiality of the documents that we are — we are privy to.No senator deserves to sit on this committee or serve in the Senate, in my view, if they decide to be a law unto themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification.
- Sen. Mike Lee, R-Utah:It’s called the Presidential Records Act. That’s the demon that you’re after here. That is the only reason we have got this issue.Now, the custodian of those documents holds and exercises privilege on behalf of the Bush administration. The custodian of those records has agreed, notwithstanding the privileged nature of those documents, to hand them over to us with an understanding that, when there is a need that arises with respect to one or more of those documents to make them public, we can, as a committee, go through a process to do that.
- Sen. Cory Booker, D-N.J.:There is no Senate rule that I violated, because there’s Senate rule that accounts for this process.I will say that I did willingly violate the chair’s rule on the committee confidential process. I take full responsibility for violating that, sir. And I violated it because I sincerely believe that the public deserves to know this nominee’s record.
- Sen. John Cornyn, R-Texas:May I read the Senate rule 29:5, the standing rules of the Senate, for the benefit of all senators?Any senator, officer or employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees and offices of the Senate, shall be liable, if a senator, to suffer expulsion from the body, and, if an officer or employee, to dismissal from the service of the Senate and to punishment for contempt.So, I would correct the senator’s statement there is no rule. There is clearly a rule that applies.
- Sen. Cory Booker, D-N.J.:Then apply the rules and bring the charges.
- Judy Woodruff:And that is where we will start our analysis of day three of this marathon hearing.Our own Lisa Desjardins has been in the hearing room all week. She joins us from Capitol Hill. “NewsHour” regular Marcia Coyle covers the court for “The National Law Journal.” Paul Clement served as U.S. solicitor general under President George W. Bush. And Neal Katyal, he was acting solicitor general in the Obama administration. He joins us from New York.Welcome to all of you.And, Lisa, I’m going to come to you first, because just fill us in, if you will, briefly on what was going on overnight that led to the release of some of these documents that this argument started about earlier.
- Lisa Desjardins:Simply, Judy, Democrats, including Senator Booker, actually requested that the documents which had previously been confidential be allowed to be made public. That is something they had not requested until last night. They did. They did it late.
- And through the night, committee staffers, along with staffers for George W. Bush, his attorneys, and the Department of Justice worked through those documents. And by about 4:00 a.m., they were able to clear them for public release. By the time the committee met this morning, and had that whole back and forth and kerfuffle, the documents that Cory Booker was talking about were in fact no longer committee confidential.So there was no breaking of the rules today. But, Judy, I think what you saw was a bigger battle over the image for both parties. Democrats felt like they had some ground to stand on, based on these e-mails, one of which dealt with racial profiling, another with abortion, to say, hey, there is something in these documents worth talking about that we couldn’t talk about before.Republicans acted quickly, because they didn’t want to look like they had anything to hide.
- Judy Woodruff:Marcia Coyle, Why did it matter in the end whether this material was made public or not?
- Marcia Coyle:Well, I think because it — at least from the Democrats’ perspective, Senate Democrats’ perspective, it did open some additional lines of questioning about Judge Kavanaugh’s views of abortion, affirmative action and race in general.So I don’t know that the politics are all that important, but I think it was — it was just another avenue in which they could try to gain more insight into his views on those issues in particular.
- Judy Woodruff:Neal Katyal — I’m sorry.Paul Clement, there was a back and forth yesterday and today over who was responsible for deciding what was released and what wasn’t. Was it in the interest of the Bush administration in some way to keep this material or so — and, frankly, so many pages of documents still under seal?
- Paul Clement:I don’t think that it was in the interest of the Bush administration necessarily to keep this material confidential. Obviously, there is a process under the Presidential Records Act.And I think there are important reasons why that process should be followed. I think the key thing, though, is the one person who wasn’t responsible for keeping these documents from the public was Judge Kavanaugh.And so, in some ways, I think all of these procedural sideshows probably worked to his benefit, because he’s not the one that has sort of kept these documents away from people. And this is really sort of a fight between the Democrats and the Republicans on the Senate Judiciary Committee.
- Judy Woodruff:So, Neal Katyal, at the end of the day, having now had a look, giving Democrats and the public a look at this, do we come away with it with any sort of different perception of this nominee?
- Neal Katyal:Yes, I think we do.
- And so I agree with Paul. We don’t know whether it’s in the interest of the Bush administration. But it’s really not in the interest of Judge Kavanaugh to have 100,000 pages of documents still withheld even at this moment, and many pages dumped just a little while ago, and some dumped, you we said, at 4:00 a.m.And Senator McConnell warned President Trump and said, look, if you nominate Judge Kavanaugh, and you want to have a rush hearing, it’s going to be a problem because of the vast number of documents.And when you have held a document like this, like the ones today were not classified or anything like that, they are things about like abortion, it looks fishy. It looks like there’s something to hide, even when there very well maybe nothing to hide.But here we are on day three, we still haven’t gotten all the documents. They’re trickling out, but there’s still 100,000 pages being withheld. And I think it looks particularly suspicious when the rules that Senator Grassley insisted on and Senator Cornyn with respect to Kagan, they are now throwing that rule book entirely out and saying, oh, we don’t need all the documents.
- Judy Woodruff:All right.Well, let’s get a sense of what more Judge Kavanaugh was asked today. We’re going to play now a little bit of sound — more sound from today’s hearing.This exchange with Democratic ranking member Dianne Feinstein is about a 2003 e-mail from the George W. Bush White House in which Judge Kavanaugh questioned if Roe vs. Wade is settled law or if other judges would overturn it.
- Sen. Dianne Feinstein, D-Calif.:Tell us why you believe Roe is settled law. And, if you could, do you believe it is correctly settled?
- Brett Kavanaugh:Roe v. Wade is an important precedent of the Supreme Court. It’s been reaffirmed many times. It was reaffirmed in Planned Parenthood vs. Casey in 1992, when the court specifically considered whether to reaffirm it or whether to overturn it.In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter and Justice O’Connor went through all the factors, the stare decisis factors, analyzed those, and decided to reaffirm Roe.
- Sen. Dianne Feinstein, D-Calif.:So, you believe it is correctly settled, but is it correct law, in your view?
- Brett Kavanaugh:Just the whole body of modern Supreme Court case law, I have to follow what the nominees who’ve been in this seat before have done.
- Sen. Dianne Feinstein, D-Calif.:Judge, a yes or a no will do.
- Brett Kavanaugh:Well, I’m — just if I can briefly explain, Senator.
- Sen. Dianne Feinstein, D-Calif.:Yes, you can, of course.
- Brett Kavanaugh:Brief — I will try to be brief.But this — when you’re in this seat, I’m not just sitting here for myself. I’m sitting here as a representative of the judiciary and the obligation to preserve the independence of the judiciary, which I know you care deeply about.And so one of the things I have done is studied very carefully what nominees have done in the past, what I have referred to as nominee precedent. And Justice Ginsburg, but really all the justices, have not given hints or forecasts or previews.And Justice Kagan, I think, captured it well, as she often does, with — in talking about questions like the one you’re asking, you can’t give a thumbs up or thumbs down and maintain the independence of the judiciary.So I need to follow that nominee precedent here.
- Judy Woodruff:So, Marcia Coyle, Judge Kavanaugh is saying, I’m simply doing what the other justices who are now sitting on the court have done when they were asked these questions.
- Marcia Coyle:There was — there’s been considerable confusion over the last three days about what he may mean by settled law.And when the e-mail from the time he was in the White House came out in which he was responding to a statement that was being drafted in support of another judicial nominee, the statement said something to the effect that all legal scholars agree that Roe is settled law.And he — and he — and he said, no, I don’t think that you can say that Roe is settled law, that all legal scholars agree that Roe is settled law, because there are at least three justices who may be inclined to overturn it.So that just prompted a whole series of questions. Did he believe it was settled law or not? That e-mail response really didn’t reflect what he thought. So he had to explain, settled law, precedent, how — how do you distinguish between the two?And he did point out that there are certain decisions of the Supreme Court, historical decisions, involving issues that are unlikely to come before the court again, such as school segregation, Brown vs. Board of Education, that he felt he could say that that was correctly decided, that is settled law.But he said there’s also a whole body of Supreme Court decisions, precedents that could come back to the Supreme Court, and so he was following what other nominees had said, that he cannot comment.
- Judy Woodruff:Paul Clement, what was the risk — what would be the risk in his going on — going ahead and saying, yes, I think this was correctly settled, unless he doesn’t believe it, in which case you have a different situation?
- Paul Clement:Oh, I think the risks are quite considerable.And that’s why I think Judge Kavanaugh invoked the nominee precedents. I think every person who sat in that seat in the Senate Judiciary Committee hearing room has perceived that, if you start saying, even as to an innocuous precedent that you think is correctly decided, that, OK, that one’s correctly decided, then you have sort of opened it up to answer that question about every one of the cases.And then, when you get, if you are confirmed, on the court, then you’re in a position where people are literally going to be citing your Senate Judiciary Committee testimony in briefs to the court and suggesting that you are hemmed in.So I do think that he’s correct to invoke the precedent of Judge Sotomayor when she was Judge, and not yet Justice Sotomayor, Solicitor General Kagan when she was before the committee. I think invoking that precedent is both a good tactic for present purposes, but I think it also gets at something very important and is ultimately correct.
- Judy Woodruff:So, Neal Katyal, did we get as much as we were likely to get from Judge Kavanaugh today?
- Neal Katyal:Well, I was a little surprised that the answer wasn’t a bit more fulsome.After all, Justice Ginsburg certainly answered the question about Roe at her hearings. Even Judge Kavanaugh answered questions about whether Brown was rightly decided or not and some other cases.And this is not a usual nomination. This is a nomination by a president who campaigned and promised that he would appoint pro-life justices, two or three, that would — quote — “overturn Roe.” And we heard it and heard it and heard it and heard it again until the Justice Kennedy vacancy.And then all of a sudden, it disappears. And that’s why I think the e-mail today was significant, because it does suggest that Judge Kavanaugh has a different view of whether or not he would be able to and would be willing to overturn settled precedent.Now, again, maybe there’s nothing there. But it looks fishy to have these documents coming out on day three of the hearing. They were marked confidential before. There’s nothing classified in them. This is not a good process.
- Judy Woodruff:And there’s just one more clip we want to play from today’s hearing. This is when Delaware Democratic Senator Chris Coons was questioning Judge Kavanaugh’s views on presidential power.
- Sen. Chris Coons, D-Del.:I simply wish you would be clear with us and the American people about your view of the scope of presidential power and what its consequences might be.I don’t think you’re being direct with me about that, because I think to be direct with me about that in this context would put your nomination at risk.
- Brett Kavanaugh:I respectfully disagree, Senator.You’re talking about a statute that has been — not existed for 20 years. I…
- Sen. Chris Coons, D-Del.:That’s no longer what I’m talking about, Your Honor.As you know, what I’m talking about is your view of presidential power, as made clear in speeches and in writings and in a decision this year. We’re not talking about the independent counsel statute now. We’re talking about the scope of presidential authority. And I think it has consequences for our nation.
- Brett Kavanaugh:Respectfully, I believe you’re talking about a statute that has not been in place since 1999.Secondly, the special counsel system, I have specifically written about multiple times and approved. Thirdly, if there were some kind of protection, for-cause protection, or some other kind of protection that were different from the old independent counsel statute, I have said that I would keep an open mind about that.So I have not said anything to rule that out. And I have referred to U.S. v. Nixon as one of the greatest decisions in Supreme Court history.
- Judy Woodruff:Now, since that has happened — and that happened about an hour or so ago — the hearing has continued.And I am told, in the last few minutes, Judge Kavanaugh has said under questioning that he wouldn’t recuse himself if there were any Mueller case, any legal case that did reach the Supreme Court were he to be confirmed.Lisa, this is something Democrats have wanted to get at, is it not?
- Lisa Desjardins:That’s right.And, to be honest, I’m surprised that it took this long for them to ask that question. I was speaking to the number two Democrat in the Senate, Dick Durbin, three days ago, and that was one of the very first things he spoke up, was asking that recusal question.That’s a very important answer. We’re going to hear a lot more about it, I think, from Democrats.
- Judy Woodruff:Marcia Coyle, just for a quick go-round here at the end, that’s — that’s a significant statement on his part, isn’t it?
- Marcia Coyle:Yes.And — but I think it wouldn’t be unusual for a nominee to say that, because they — they realize that the Supreme Court, when a justice recuses, the court is left with eight justices. And there’s difficulty in reaching a decision at that point.I think Judge Kavanaugh had been asked this before, and I think he said it would depend on what the case — the issues in the case. He said he would follow the judicial code’s guidance on recusal in making that decision.He also made clear — oh, go ahead, Judy. I’m…
- Judy Woodruff:No, go ahead. Finish your point.
- Marcia Coyle:I just wanted to stay, on the presidential power issue, he also made it really clear that, if there were a court order telling the president to do something or not to do something, that that would be the final word.And as far as the president taking some action to remove the special counsel, as you heard in the clip, he said he would keep an open mind on what that — the special counsel regulations, as well at what Congress has said about removal.
- Judy Woodruff:All of that especially matters right now, Paul Clement, because of what’s been going on with the special counsel.What do we finally take away with regard to his views on presidential power?
- Paul Clement:Well, I think what he’s trying to do here is, he’s trying not to prejudge any of these issues. And that goes to the merits of an issue, like abortion or a particular executive power issue that could come up.And nobody knows exactly the precise context or which issue would come up. I think he’s trying to preserve his ability to decide those issues when they do come up. And I think that goes even to the question of whether he could recuse himself or would need to recuse himself.I don’t — I don’t read them as saying he would never — he would absolutely never recuse himself. I think he wants to keep an open mind and apply the standards that would normally be applied by a justice in that situation.
- Judy Woodruff:And, finally, Neal Katyal, just quickly, what do you — what do you take away in terms of his views of presidential power?
- Neal Katyal:There is, Judy, a bombshell in that answer.He said that he would approve the special counsel regulations in that answer in that clip that you provided. Now, yesterday, when asked about race and abortion and affirmative action and consumer protection, he said, I can’t tell you about those hypothetical cases because they could be pending in my court.But the — probably the most significant case currently pending in his court, the D.C. Circuit, is about the legality of the special counsel regulations. It’s challenged by Concord and the Manafort associates and the like.And he provided an answer there. And so I suspect the rest of the hearing is going to focus on that and say, look, if you can answer that question about a pending case in your court, how can you not answer all of these other questions?
- Judy Woodruff:A number of questions still there. The hearing continues into tonight. We will be monitoring it all.I want to thank all of our guests, Neal Katyal, Paul Clement, Marcia Coyle, Lisa Desjardins.Thank you.
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