Supreme Court Nominations
Updated: Circuit Judge Brett Kavanaugh told the Senate Judiciary Committee on Tuesday afternoon that he “will keep an open mind in every case” if he is confirmed to the U.S. Supreme Court.
Kavanaugh said he looks forward to the confirmation hearing, without mention of the stormy start to the hearing Tuesday morning. Protesters shouted, senators spoke over each other, and Democrats requested a delay to wait for more documents and to review more than 42,000 pages released Monday night on a “committee confidential” basis.
As protesters yelled, “Hell no, Kavanaugh,” Sen. Orrin Hatch, R-Utah, complained that the committee should not have to “put up with this type of insolence.” Noisy protesters were removed throughout the hearing, but yelling would resume after new spectators entered.
Sen. Kamala Harris, D-Calif., said that Kavanaugh devoted his early career to a partisan Republican agenda, and she alleged that he brings political bias to the bench. Kavanaugh was an associate counsel to then-President George W. Bush from 2001 to 2003, a senior associate counsel to Bush in 2003, and assistant and staff secretary to Bush from 2003 to 2006.
Kavanaugh’s decisions have favored big business, polluters, and the powerful, Harris said. He has argued that undocumented workers weren’t employees under labor laws and that assault weapons can’t be banned under the Constitution, she said. Though he worked for independent counsel Kenneth Starr in the investigation of President Bill Clinton, Kavanaugh has since made the argument that presidents shouldn’t be held accountable in office, she added.
Kavanaugh’s statement, however, stressed the neutral role of judges.
“The Supreme Court must never, never be viewed as a partisan institution,” he said. Justices on the Supreme Court don’t sit on opposite sides of an aisle, and they don’t caucus in separate rooms, he said. As part of the Supreme Court, he would be part of a team of nine, Kavanaugh said.
Kavanaugh said a judge must interpret statutes as written, and must interpret the Constitution as written, informed by history, tradition and precedent. He said he learned from his mother, a public school teacher who later became a prosecutor, that judges don’t deal with abstract principles, and good judges must be able to stand in the shoes of others.
Sen. Lindsay Graham, R-S.C., noted that Kavanaugh is being criticized for his Republican ties, even though Justices Stephen G. Breyer and Ruth Bader Ginsburg had partisan backgrounds. Breyer was an aide to Sen. Ted Kennedy, and Ginsburg had worked for the American Civil Liberties Union, he said.
“This is shaping up to be the hypocrisy hearing,” Graham said.
The late-arriving documents relate to Kavanaugh’s work in the George W. Bush administration, and they supplement 415,000 pages of documents already released to the committee. Nearly 102,00 pages of documents concerning Kavanaugh’s work as a lawyer in the Bush White House were withheld based on a claim of executive privilege.
Sen. Patrick Leahy, D-Vt., complained that there was no privilege log showing what records were withheld and why they were withheld. He described the incomplete release of documents as “downright Orwellian.”
Sen. Richard Blumenthal, D-Conn., moved several times to adjourn the hearing to allow time for release and review of documents, but Senate Judiciary Committee Chairman Charles Grassley would not consider the motion. Blumenthal and several other Democrats said Kavanaugh himself should seek a hearing delay.
Blumenthal and Sen. Sheldon Whitehouse, D-R.I., both suggested that Kavanaugh appeared to have campaigned for the job of Supreme Court justice. Whitehouse said Kavanaugh gave more than 50 speeches to the Federalist Society, and “that’s some auditioning.”
Sen. Ben Sasse, R-Neb., told Kavanaugh that confirmation hearings are becoming an overblown, politicized circus, and he offers Kavanaugh both congratulations for his nomination and condolences for having to go through a process that “stinks.”
Sasse said the Supreme Court has become a substitute political battleground because senators who want to win re-election are leaving legislative questions to the bureaucracy. Kavanaugh understands his job isn’t to rewrite laws or to be a super-legislator, Sasse said.
Contrary to the smears being lobbed, “Judge Kavanaugh doesn’t hate women and children, Judge Kavanaugh doesn’t lust after dirty water and stinky air,” Sasse said.
Sen. Orrin Hatch, R-Utah, also indicated that Kavanaugh’s record is being exaggerated. Some people are trying to paint Kavanaugh as “one of the Four Horsemen of the Apocalypse,” but nothing could be further than the truth, he said.
The hearing resumes at 9:30 a.m. Eastern Time on Wednesday. Live blog posts from Tuesday’s hearing are below.
4:55 p.m. ET. Judge Brett Kavanaugh began his statement by referring to two of his heroes. One hero, he said, is Justice Anthony M. Kennedy, for whom he once clerked. Kennedy was a model of collegiality who defended the independence of the judiciary and established a legacy of liberty, Kavanaugh said.
Another hero, Kavanaugh said, is his mother, who was a public school teacher in1968 at a difficult time for racial relations. His mother taught him the importance of equality for all Americans, equal rights and equal dignity, he said.
Kavanaugh said his mother went to law school when he was 10, and she later became a prosecutor. She taught him that judges don’t deal with abstract principles, and good judges must be able to stand in the shoes of others.
Kavanaugh said he has written more than 300 opinions during his 12 years as a judge on the U.S. Court of Appeals for the D.C. Circuit, and he has devoted himself to every case.
Kavanaugh said a judge must interpret statutes as written, and must interpret the Constitution as written, informed by history, tradition and precedent. Judges must be a neutral umpire who act impartially, he said.
“The Supreme Court must never, never be viewed as a partisan institution,” he said. Justices on the Supreme Court don’t sit on opposite sides of an aisle, and they don’t caucus in separate rooms. As part of the Supreme Court he would be part of a team of nine, Kavanaugh said.
Kavanaugh said he has tried to serve the common good throughout his life. He has tutored at a tuition-free school for low-income families, and has served meals to the homeless. “I know I fall short at times, but I always want to do more and do better,” he said.
He has also coached his daughters’ basketball teams, and proceeded to name the members on one of his daughter’s winning teams. He thanked all of the teachers and coaches throughout America.
Kavanaugh said he has also taught constitutional law, primarily at Harvard Law School, teaching that separation of powers protects individual liberty.
One of the best parts of his job as a judge is hiring four law clerks every year, Kavanaugh said. A majority of his 48 law clerks have been women, and more than a quarter of his clerks have been minorities, he said.
Kavanaugh said he is grateful for the support of his friends over the past several weeks, and reached for a glass of water as he appeared to get emotional. He also thanked his family. His father, he said, has an unparalleled work ethic and the ability to make friends with people. His wife, he said, is a popular town manager for the local community who has made him a better person and a better judge. “I thank God every day for my family,” he said.
Kavanaugh said he looks forward to the hearing. “I am an optimist. I live on the sunrise side of the mountain,” he said. “I am optimistic about the future of America. I am optimistic about the future of our independent judiciary. I revere the Constitution. If confirmed to the Supreme Court I will keep an open mind in every case.”
4:35 p.m. ET. Appellate litigator Lisa Blatt, who has argued 35 cases before the Supreme Court, said she is a Democrat whose hero is Ruth Bader Ginsburg. Yet she supports Kavanaugh for the Supreme Court.
Kavanaugh bases his decisions on what the law requires, rather than his personal preferences, Blatt said. He has been a great source of advice on work-life balance, and he is remarkably committed to promoting women in the legal profession, according to Blatt.
If it were up to her, Blatt said, Justice Ginsburg would have all nine votes on issues such as abortion. But Kavanaugh is the best choice that liberals could reasonably hope for in these circumstances, Blatt said.
Blatt said she believed Merrick Garland was also worthy for the Supreme Court, but our judicial system “is not well-served by tit-for-tat politics.”
4:30 p.m. ET. Sen. Rob Portman, R-Ohio, called Kavanaugh a well-respected judge who is guided by the Constitution and the rule of law. He is an extraordinary nominee because of his experience, his record and his character, he said.
Kavanaugh is a friend who has the “humility to listen,” Portman said. “I know the man, He does things because it’s the right thing to do,” Portman said.
4:18 p.m. ET. The hearings resume with an introduction by former Secretary of State Condoleeza Rice, who said Kavanaugh was a supportive and caring colleague in the George W. Bush administration. Kavanaugh was hardwording and “really, really smart,” she said.
4:14 p.m. ET. Sen. Lindsay Graham, R-S.C., noted that Kavanaugh is being criticized for his Republican ties, even though Justices Stephen G. Breyer and Ruth Bader Ginsburg had partisan backgrounds. Breyer was an aide to Sen. Ted Kennedy and Ginsburg had worked for the American Civil Liberties Union.
“This is shaping up to be the hypocrisy hearing,” Graham said.
Graham praised President Donald Trump for nominating Kavanaugh and Neil Gorsuch to the Supreme Court. He criticized the political atmosphere, but said the antidote should not be denying Kavanaugh a seat on the court.
4:00 p.m. ET. Sen. Kamala Harris, D-Calif., said Kavanaugh’s decisions on the D.C. Circuit have been partisan rather than impartial.
Kavanaugh has favored big business, polluters, and the powerful, Harris said. He has argued that undocumented workers weren’t employees under labor laws and that assault weapons can’t be banned under the Constitution, she said. He has made the argument that presidents can’t be held accountable in office, she added.
According to Harris, Kavanaugh’s confirmation may affect whether a person can exercise his or her right to cast a ballot, whether a woman with breast cancer can afford health care, whether a transgender worker is treated with dignity, whether a teen can have an abortion, and whether a president is above the law.
Harris said Kavanaugh has devoted his career to a partisan Republican agenda. She said he helped ensure votes were not counted in the Bush v. Gore case. He has helped confirm partisan judges, she said. He aided independent counsel Ken Starr in the investigation of President Bill Clinton.
Harris said Kavanaugh has shown he seeks to win at all costs even if it means pushing the envelope. He appears to bring political bias to the bench, she claimed.
3:20 p.m. ET. Sen. Cory Booker, D-N.J., began his comments by saying he was not questioning the decency of Senate Judiciary Committee Chairman Grassley, and he deeply respected Grassley.
But Booker said tens of thousands of pages of Kavanaugh documents were released last night, and he doesn’t understand why the hearings couldn’t be delayed for a week or two to receive more documents and review the new ones.
“This is an absurd process” that could be solved by putting a pause on the hearings, Booker said. He wouldn’t hire an intern if he had just seen 10 percent of that person’s resume, Booker said. “The stakes are too high” to rush through the process without only 10 percent of Kavanaugh’s documents, Booker said.
“I am obsessed about the process. This is not manufactured outrage,” Booker said.
Some people have called Democrats’ quest for documents a sham and a charade, Booker said. He acknowledged he opposes Kavanaugh’s confirmation, but said he still has a responsibility to vet the nominee.
Kavanaugh—who has questioned whether presidents should have to face civil and criminal actions while in office—was added to the list of judges after President Donald Trump was in possible legal jeopardy, Booker said.
Booker said this is “a profound and historical moment,” and he can’t support Kavanaugh’s confirmation because of the “perverse” nomination process.
2:35 p.m. Sen. Richard Blumenthal, D-Ct., renewed his motion to adjourn the hearing to allow time for release and review of documents. Many documents released late yesterday were not loaded into the computer platform for viewing until this morning, Blumenthal said.
Blumenthal agreed that Kavanaugh should ask for a suspension of the hearing because of the document issue.
Blumenthal said that many people are wearing T-shirts reading, “I am what’s at stake.” There are many important issues, Blumenthal said, including Kavanaugh’s stance on executive branch accountability, he said.
Blumenthal noted that President Donald Trump has once again criticized Attorney General Jeff Sessions, this time for bringing charges against two congressional Republicans ahead of the midterms. Trump has previously criticized Sessions for recusing himself in the special counsel’s investigation of Russian influence in the election.
Blumenthal said Kavanaugh could be the deciding vote on issues relating to President Donald Trump in the Russia investigation. Kavanaugh may have to help decide whether Trump has to testify in response to a subpoena, and whether Trump would have to stand trial if there were criminal charges, Blumenthal said.
Blumenthal said Kavanaugh appears to be more than a nominee. He has indicated to conservatives that he will be a loyal soldier, and he appears to be a candidate in a campaign that he is conducting, Blumenthal alleged.
2:20 p.m. ET. Sen. Ben Sasse, R-Neb., said he offers his congratulations and condolences to Kavanaugh because the confirmation process stinks. Confirmation hearings are becoming an overblown, politicized circus, and the reason stems from Congress’ refusal to do its job, he said.
Sasse said lawmakers are deferring to bureaucrats and the executive branch because they fear difficult decisions will hurt their ability to get re-elected. Congress has decided to “self-neuter,” leaving constituents with nowhere to complain when they are affected by a regulation enacted by “alphabet soup bureaucracies,” he said.
Because people can’t navigate through the bureaucracy, the Supreme Court becomes a substitute political battleground, he said. In this kind of a system, “We look for nine justices to be super-legislators,” he said. “We look to nine justices to try to right the wrongs at other points in the process.”
The solution, Sasse said, is not to find judges who will be policy makers, but to find judges who will restore the constitutional order. The issue before the Senate Judiciary Committee should be whether Kavanaugh can put his policy preferences in a box and set it aside when he puts on his judicial robes, Sasse said.
Sasse said he believes Kavanaugh understands his job isn’t to rewrite laws or be a super-legislator. Instead, he he is dissatisfied with power-hungry bureaucrats doing the work of lawmakers, Sasse said.
Contrary to the smears being lobbed, “Judge Kavanaugh doesn’t hate women and children, Judge Kavanaugh doesn’t lust after dirty water and stinky air,” Sasse said.
1:30 p.m. ET. Senate Judiciary Committee Chairman Charles Grassley says Democrats are using inaccurate numbers and “fuzzy math” when they complain that only 6 percent of Kavanaugh’s documents have been released.
Grassley also took issue with criticism of the Supreme Court during the hearing. Whenever President Donald Trump criticizes the judiciary, there are wails of anguish from Democrats, Grassley said. But now there seems to be an accusation that the Supreme Court is being bought, Grassley said, and there is a double standard at work.
12:48 p.m. ET. The committee hearing has recessed until 1:17 p.m. Eastern Time.
12:33 p.m. ET. Sen. Sheldon Whitehouse, D-R.I., said there were 73 Supreme Court decisions during the leadership of Chief Justice John G. Roberts Jr. that involved partisan interests, and the Republicans won every time. Whitehouse referred to the majority in those cases as the “Roberts five.”
Whitehouse said Republican interests want Kavanaugh to win so the Roberts five can continue to: allow gerrymandered elections, keep minority voters away from the polls, allow corporate money to buy elections and bully Congress, protect corporations from class action lawsuits, hinder plaintiffs’ access to courts, protect corporations from liability for human rights violations, help big business bust unions, let corporate polluters pollute, uphold restrictive abortion laws, and uphold President Donald Trump’s immigration restrictions.
Behind Whitehouse, a staffer held up signs that illustrated his major points.
Whitehouse said Kavanaugh gave more than 50 speeches to the Federalist Society, and “that’s some auditioning.” There are big expectations for Kavanaugh, Whitehouse said. Tens of millions of dollars in dark money has been spent to support Kavanaugh’s nomination, with the expectation that he will allow dark money contributions to continue, Whitehouse said.
Kavanaugh has displayed expansive views on executive immunity from the law, and that should give every senator pause, Whitehouse said.
Whitehouse said he feared Kavanaugh will ride off with the Roberts five if he wins confirmation, no matter what he says during the confirmation hearing.
12:05 p.m. ET. Sen. Dick Durbin, D-Ill., asked Kavanaugh himself to ask the Senate Judiciary Committee to suspend hearings until all of the documents regarding his work in the George W. Bush administration are released and reviewed.
“For the sake of this nation, for the sanctity of the Constitution,” ask for a suspension of the hearings, Durbin said.
Durbin told Kavanaugh there was a 35-month “black hole in your White House career” in which no documents whatsoever have been released.
Durbin said Congress had passed an anti-torture amendment during the George W. Bush administration, and Bush had asserted a right to bypass the law in a signing statement. There are no documents available on whether Kavanaugh gave any advice on the matter, Durbin said. Durbin said he asked Kavanaugh if he worked on the statement, and Kavanaugh said he couldn’t rule it out.
Durbin also commented on the protesters. “What we’ve heard is the noise of democracy,” Durbin said. “It is not mob rule.”
11:48 a.m. ET. Sen. Patrick Leahy, D-Vt., complained that the incomplete release of documents on Supreme Court nominee Brett Kavanaugh was “downright Orwellian.”
“I never thought the committee would sink to this,” Leahy said. Leahy said the hearing should not be held until the review of records is completed.
Leahy said Kavanaugh was “a political operative” before he became a judge, and he provided advice on many controversial issues when he was staff secretary for former President George W. Bush. Records of that advice were withheld after Senate Republicans huddled in a private meeting with the White House counsel, Leahy said.
No privilege log was provided showing what records were withheld and why they were withheld, Leahy said. “What is being hidden and why?” Leahy asked.
The records that were released were hand-picked by Kavanaugh’s deputy when he was in the White House, a “hyper conflicted lawyer,” Leahy said. According to past reporting by the Associated Press, lawyer William Burck is the public records lawyer for George W. Bush, and he is also a lawyer for current and former Trump administration officials in the Russia probe. He has reviewed documents from Kavanaugh’s years working for Bush before their release.
Leahy also objected to claims of executive privilege that were used to prevent release of about 102,000 pages of records. “Such a blanket assertion of executive privilege is simply unheard of in the history of this country,” Leahy said.
11:19 a.m. ET. Sen. Orrin Hatch, R-Utah, says that some people are trying to paint Kavanaugh as “one of the Four Horsemen of the Apocalypse,” but nothing could be further than the truth. Kavanaugh is a smart decent person and a highly respected judge, Hatch said.
Even liberals support Kavanaugh because they know his work and know that he is an indisputably qualified nominee, Hatch said.
At one point during his statement, Hatch paused as a protester shouted. Hatch said he wanted “this loudmouth to be removed,” and added, “I hope she’s not a law student.”
Hatch said the hearing for Kavanaugh should not be about politics. He said some people in the hearing are playing to the cameras.
“Hell no, Kavanaugh,” protesters shouted in the background.
Hatch said the committee should not have to “put up with this type of insolence.”
11:12 a.m. ET. Sen. Dianne Feinstein, D-Calif., said the issue isn’t whether Supreme Court nominee Brett Kavanaugh feels Roe v. Wade is settled law, but whether Kavanaugh feels it is correct law.
Feinstein said President Donald Trump has said he will nominate someone who is anti-choice and pro-guns, and Kavanaugh’s past decisions as a federal appeals judge suggest Kavanaugh is that type of judge.
Feinstein noted Kavanaugh’s dissent in Garza v. Hargan, in which the majority allowed an immigrant teen being held in a government shelter to have an abortion. Feinstein said Kavanaugh’s dissent rewrites Supreme Court precedent.
The impact of overturning Roe v. Wade is broader than the right to abortion, Feinstein said. The case is also about privacy rights, including the right to decide who to marry, the type of medical care available at the end of life, and the right to decide whether and when to have a family, Feinstein said. Cases on those issues “serve as a bulwark of privacy rights” to protect all Americans from government overinvolvement in their lives, she said.
Feinstein also criticized Kavanaugh’s views in a federal appeals case involving gun rights. Kavanaugh had indicated that unless guns were regulated at the time the Constitution was written, they can’t be regulated now, Feinstein said. That means lawmakers could not enact sensible gun laws, and could not regulate weapons as they become more advanced, she said.
Feinstein said she believes that reasoning “is far outside the mainstream of legal thought.”
10:52 a.m. ET. Senate Judiciary Committee Chairman Charles Grassley makes a formal statement about Kavanaugh and the need for rule of law as protesters yell in the background.
“A good judge exercises humility and makes decisions according to the specific facts of the case, and of course according to the law,” Grassley said. “A good judge never bases his decision on his preferred policy preferences. A good judge also has courage, recognizing that we have an independent judiciary. …
“I don’t want judges who always reach a liberal result or a conservative result. I want a judge who rules the way the law requires. Judges must leave lawmaking to Congress.”
Grassley said it is unfair and unethical to ask a judge to make a promise on how he would vote on a case. Senators should be satisfied if Kavanaugh refuses to answer questions about potential rulings, he said.
Grassley referred to the nomination hearing of failed Supreme Court nominee Robert Bork, and said Bork’s treatment should not be repeated.
10:35 a.m. ET. Sen. Judiciary Committee Chairman Charles Grassley asks how long Democrats plan to continue their objections to holding the hearing. Speaking with emotion, Grassley says he has been accused of holding a “mob rule” session. Yet Democrats previously praised him for the hearing of the last Supreme Court nominee, Neil Gorsuch. “This is the same Chuck Grassley that ran the Gorsuch hearing,” Grassley said. “I would like to run this hearing the same way if you would give me the courtesy of doing it.”
10:30 a.m. ET. Sen. John Cornyn, R-Texas, complained about “mob rule” during the hearing. Everyone will have a chance to speak, he said. But it is difficult to take Democratic objections seriously when everyone on their side of the aisle has announced their opposition to Kavanaugh, he said. Democrats have already made up their mind, yet they are clamoring for more documents, he said.
10:20 a.m. ET. Protesters continue to yell when Senate Judiciary Committee Chairman Charles Grassley is speaking. SCOTUSblog points out that several protesters have been removed from the hearing room, and new spectators have entered.
10:10 a.m. ET. Sen. Dianne Feinstein, D-Calif., says 93 percent of Kavanaugh’s records from his work in the George W. Bush White House have not been provided to the committee, and 96 percent of the records have not been provided to the public.
Feinstein says Democrats want time to consider emails and documents.
The aim is not to create disruption, Feinstein said. The aim is not “ to make this a very bad process. It is to say, majority, give us the time to do our work so we can have a positive and comprehensive hearing on the man who may well be the deciding vote” on several important issues.
10:01 a.m. ET. Grassley says Kavanaugh’s decisions are the best information for the committee. Even if committee staff hasn’t read the latest 42,000 pages delivered to the committee last night, staff members have read them, Grassley said.
9:48 a.m. ET. As a protester speaks over him, Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, says senators on the other side of the aisle are accusing the administration of using executive privilege to hide documents. “This assertion is not legitimate,” he said. Grassley said Kavanaugh acted as a lawyer in the George W. Bush administration, advising the president on sensitive issues such as judicial nominations and separation of powers. Some documents should remain private, he said.
9:38 a.m. ET. As Senate Judiciary Committee Chairman Charles Grassley gavels the hearing to order, Democratic Sen. Kamala Harris, D-Calif., begins speaking over him to protest the withholding of documents. Grassley and Harris speak over each other. Sen. Richard Blumenthal, D-Ct, asks to adjourn the hearing.
Others support Harris, including Sen. Corey Booker, D-N.J. Spectators in the room cheer.
Grassley responds that he believes Booker is taking advantage of his “decency and integrity.”
The original story:
Confirmation hearings began Tuesday for Supreme Court nominee Brett Kavanaugh after a White House decision to withhold tens of thousands of pages of records from the Senate Judiciary Committee.
The White House is withholding the records because of executive privilege, report the New York Times, the Washington Post and Bloomberg News. The records relate to Kavanaugh’s work as a lawyer in the George W. Bush administration.
Bush’s lawyer, William Burck, disclosed the decision in a letter on Friday to Senate Judiciary Committee chairman Charles Grassley. Most of the withheld records reflect advice regarding judicial nominees, while others concern executive office functions, including advice to Bush and deliberative discussions about executive orders or possible legislation.
In a tweet, Democratic U.S. Sen. Charles Schumer of New York called the decision to withhold the records “a Friday night document massacre.” The decision to withhold the records “is not only unprecedented in the history of SCOTUS noms, it has all the makings of a cover-up,” he tweeted.
In all, about 415,000 pages were sent to the committee. They include about 147,000 pages of records regarding Kavanaugh’s work for Bush that were given to the committee but are not available for the public to read.
Late Monday, however, Burck released more than 42,000 pages of “committee confidential” documents from Kavanaugh’s service in the Bush White House, the Washington Post reported.
“Not a single senator will be able to review these records” before the hearing, Schumer tweeted Monday evening. The Senate Judiciary Committee tweeted hours later that “the majority staff has now completed its review of each and every one of these pages.”
Kavanaugh was an associate counsel to Bush from 2001 to 2003, a senior associate counsel to Bush in 2003, and assistant and staff secretary to Bush from 2003 to 2006.