Supreme Court Nominations
Yale law professor Akhil Reed Amar told the Senate Judiciary Committee on Friday that Democrats should support Supreme Court nominee Brett Kavanaugh because there is no better alternative who would have the support of a Republican president.
Amar was one of dozens of panelists who testified for and against the 53-year-old Kavanaugh, who was nominated in July to replace retiring Justice Anthony M. Kennedy. Other panelists included a 17-year-old girl who survived the mass shooting at a high school in Parkland, Florida; a 13-year-old boy with a genetic condition; and the convicted former White House counsel for President Richard Nixon, John Dean.
Two representatives of the ABA Standing Committee on the Federal Judiciary also testified about the group’s unanimous “well qualified” rating of Kavanaugh. The committee member who led the review, John Tarpley of Nashville, Tennessee, told senators that Kavanaugh is not only mainstream, “he’s at the top of the stream.”
Amar told the committee that he voted for Clinton, but he believes Kavanaugh is the best candidate on the horizon among Republican federal judges under age 60.
Democrats should realize that if they torpedo Kavanaugh, they will likely end up with someone worse, Amar said. “If not Brett, who?” he asked.
Amar said that on some issues, Kavanaugh’s views may be better for liberals than the views of Kennedy, the the justice he would replace. Those areas including voting rights, governmental immunities and congressional power to implement the Reconstruction Amendments, he said.
Sen. Cory Booker, D-N.J., appeared to fight back tears during testimony by a Parkland shooting survivor.
Aalayah Eastmond described how two students in her classroom were shot, one of them landing on her as they both fell to the ground. That student saved her life, Eastmond said.
Eastmond rejected the idea that the Second Amendment protects assault weapons. “My life,” Eastmond replied, “is more important than that gun.”
Kavanaugh wrote a dissent that said Second Amendment precedent would allow people to keep AR-15 rifles.
Another teen who testified, 13-year-old Jackson Corbin, said he has a genetic condition that creates stomach issues, reflux, headaches, and a form of hemophilia. Those are all pre-existing conditions, he said, and he would lose his insurance coverage if the Affordable Care Act is repealed.
John Dean, who was convicted of obstruction of justice for his role in the Watergate cover-up, said he was concerned about Kavanaugh’s views on executive power. If Kavanaugh is confirmed, Dean said, we will have the most pro-presidential-powers Supreme Court in the modern era.
Dean also said he was concerned about the withholding of documents concerning Kavanaugh’s work at the White House during the George W. Bush administration. Dean said he was surprised that Kavanaugh has not demanded those documents and questioned whether that means he has something to hide.
One senator was not impressed with Dean. Sen. John Kennedy, R-La., said Dean testified against Nixon only after he was “cornered like a rat.”
The live blog is below.
The hearings adjourned at 4:15 p.m. ET.
4:14 p.m. ET. Former Solicitor General Paul Clement, who supported Kavanaugh’s confirmation, was asked for his opinion on televising oral arguments in the Supreme Court.
Clement said he thinks televising the arguments makes a lot of sense. If the public did see the arguments, they would have a high opinion of the U.S. Supreme Court, he said.
Kavanaugh didn’t take a stand when asked about cameras on Day 2 of the hearings, but he did say same-time audio has worked well in the D.C. Circuit.
3:15 p.m. ET. Boston University law professor Rebecca Ingber testified that Kavanaugh is “exceedingly reluctant” to impose checks on presidential power in the national securities sphere.
She pointed to an 87-page separate opinion by Kavanaugh that argued courts should not look to international law to inform the president’s war power. Her prepared testimony is here.
John Dean, former counsel to President Richard Nixon, also expressed concern about Kavanaugh’s views on executive power. Dean was convicted of obstruction of justice for his role in the Watergate cover-up, and implicated Nixon in the cover-up in Senate testimony.
In his prepared testimony on Friday, Dean said that if Kavanaugh is confirmed, we will have the most pro-presidential powers Supreme Court in the modern era.
Dean also said he was concerned about the withholding of documents concerning Kavanaugh’s work at the White House. Dean said he was surprised that Kavanaugh has not demanded those documents, and he questioned whether Kavanaugh has anything to hide.
Ohio State University law professor Peter Shane said Kavanaugh adheres to a “unitary executive theory,” which holds that the president has the constitutional authority to remove an executive branch official at will. Kavanaugh has shown that he is willing to craft constitutional doctrine from whole cloth in support of his views of a strong executive, Shane said. His testimony is here.
Sen. Chris Coons, D-Del., said his view is that Kavanaugh’s view of presidential power is “dangerously unbounded,” and he asked Shane whether he agreed.
“What most concerns me about Judge Kavanaugh’s position,” Shane replied, “is not just that he has embraced the tenets of the unitary executive theory, but that he has gone to such lengths to try to create a legal foundation for it” in cases that had nothing to do with the theory.
2:26 p.m. ET. Sen. Richard Blumenthal, D-Conn., questioned Aalayah Eastmond, a high-school student who survived the mass shooting in Parkland, Florida.
Blumenthal asked Eastmond what she would say if she was told that assault weapons are protected under the Second Amendment.
“My life,” Eastmond replied, “is more important than that gun.”
2:22 p.m. ET. Kenneth Christmas, executive vice president for business and legal affairs at MarVista Entertainment, said he has always admired Kavanaugh’s ability to create deep relationships with people from all walks of life.
Christmas described himself as a lifelong Democrat who supports Kavanaugh because it is the right thing to do.
Christmas was a first-year student at Yale Law School when he met Kavanaugh, then a second-year student there. They played basketball together, attended football games, and roomed together. They have remained friends ever since.
Christmas said Kavanaugh always advised him to put himself in other people’s shoes and understand their experiences. Kavanaugh has acted as he advised, Christmas said. Kavanaugh cared deeply about Christmas’ experience as a black man, and his point of view.
The country needs a justice who is compassionate, humble and principled, Christmas said. Kavanaugh is such a nominee, he said. His prepared testimony is here.
1:56 p.m. ET. Maureen Mahoney, former deputy solicitor general, said Kavanaugh has been “a teacher, adviser and advocate for women” throughout his career and he is “superbly qualified” to sit on the Supreme Court.
Mahoney said she has worked with Kavanaugh in the solicitor general’s office and has appeared before Kavanaugh in D.C. Circuit arguments.
Mahoney said Kavanaugh stands out as a mentor to women lawyers. More than half of his law clerks have been women, and 21 of those 25 female clerks were hired to clerk on the U.S. Supreme Court. They have also served in all branches of government.
Those kind of credentials earned by the former clerks “are keys that unlock doors at the highest levels of the legal profession,” Mahoney said. Mahoney’s testimony is here.
1:43 p.m. ET. Jackson Corbin, 13, testified about his genetic condition, Noonan Syndrome, which creates stomach issues, reflux, headaches, and a form of hemophilia. Corbin’s brother and mother have the same diagnosis. The medical issues caused by the syndrome are all pre-existing conditions, he said.
If the Affordable Care Act is repealed, he and his family members will not be able to pay for their care, Corbin testified. His prepared testimony is here.
“I might be a kid but I am still an American,” he said. “We must have justices on the Supreme Court who will save the Affordable Care Act, safeguard pre-existing conditions and protect our care.”
1:35 p.m. ET.. A.J. Kramer, federal public defender for Washington, D.C., described two cases in which Kavanaugh wrote opinions favoring criminal defendants.
In one opinion, Kavanaugh “wrote a primer” on battered women’s syndrome when he ruled a trial lawyer was ineffective for failing to secure expert testimony on the issue, Kramer said. The case concerned a woman convicted of extortion who claimed she committed the crime because she had been beaten.
In another case, Kavanaugh wrote a concurrence about how important it is for jurors to be instructed on the mens rea for the crime. The client was accused in a hazing incident that resulted in death.
Kramer said Kavanaugh has been very protective of making sure mens rea is proven in criminal cases. He has also been critical of sentencing that is based on conduct alleged in criminal counts for which a defendant is acquitted, Kramer said. His testimony is here.
1:24 p.m. ET. Sen. Cory Booker, D-N.J., appeared to fight back tears as a student who survived the school shooting in Parkland, Florida, testified.
Aalayah Eastmond described how two students in her classroom were shot, one of them landing on her as they both fell to the ground. That student saved her life, Eastmond said.
Youth is urging our society to recognize the depth and seriousness of gun violence throughout America, Eastmond said. Why can’t lawmakers, judges and Donald Trump recognize the impact of gun violence, she asked. Eastmond’s testimony is here.
12:14 p.m. ET. Sen. Richard Blumenthal, D-Conn., said Kavanaugh did not follow the lead of prior Supreme Court nominee Neil Gorsuch by condemning President Donald Trump’s attacks on the judiciary. Before his confirmation, Gorsuch had called the attacks “demoralizing” and “disheartening.”
After he was criticized by Justice Ruth Bader Ginsburg in 2016, Trump had tweeted that Ginsburg’s “mind is shot” and she should resign.
Blumenthal asked panelist Theodore Olson, a former solicitor general, for his opinion on whether Kavanaugh should have taken a stand against the attacks on the judiciary. Olson had supported Kavanaugh in his testimony on Friday.
Olson, speaking for himself, said the American judiciary is respected worldwide, and he deplores statements attacking the integrity of the judiciary. Olson said he has tremendous respect for Ginsburg. She “is an extraordinarily talented, able person; she remains so to this day,” Olson said.
11:12 a.m. ET. Yale law professor Akhil Reed Amar testified that Kavanaugh is the best candidate on the horizon, among Republican federal judges under age 60.
Amar said he voted for Hillary Clinton, but Democrats should realize that if they torpedo Kavanaugh, they will likely end up with someone worse. “If not Brett, who?” he asked.
Amar said that on some issues, Kavanaugh’s views may be better for liberals than the views of the justice he is replacing, Anthony M. Kennedy. Those areas including voting rights, governmental immunities and congressional power to implement the Reconstruction Amendments, he said.
Kavanaugh’s writing demonstrates proper respect for tradition and precedent, according to Amar. Many of his views on the executive branch are quite standard; on other executive branch topics Kavanaugh’s views are not yet conventional wisdom but are nonetheless sound, Amar said.
Kavanaugh would work well with new colleagues on the Supreme Court, and would be a pro-intellectual, anti-polarizing force on the court, he said. In response to questions, Amar said he believes Kavanaugh will help bring out the best in other justices if he is confirmed to the court.
Amar’s prepared testimony is here.
11:03 a.m. ET. New York University law professor Melissa Murray said she has had lunch and interacted with Kavanaugh, and she can attest to his friendliness and charming demeanor.
But the nomination is not about people who will interact with Kavanaugh, but instead about real people on the ground who will be depending on Kavanaugh to protect their rights, Murray said.
Murray said reproductive rights are under serious threat in the country. There is a concerted strategy to dismantle Roe v. Wade through incremental cuts, rather than by one fell swoop, she said.
A vote for Kavanaugh is against Roe, Murray said. She pointed to his dissent in Garza v. Hargan, in which the majority allowed an immigrant teen in U.S. history to have an abortion. Murray’s prepared testimony is here.
10:49 a.m. ET. Alicia Baker, an Indiana minister, said she was denied access to affordable birth control because of religious objections by her insurance company. Her IUD cost $1,200, and she and her husband had to pay for it with money set aside for student loans and their first home together.
Baker said Kavanaugh heard a case, Priests for Life, in which his dissent would have allowed employers and universities to use religion as a reason to deny birth control. Baker said she is a Christian, but she is against such broad interpretations of religious freedom. Baker’s testimony is here.
Baker’s testimony followed that of another person who described the real-world implications of Kavanaugh’s opinions. Lawyer Rochelle Garza represented a 17-year-old immigrant known as Jane Doe who sought an abortion while in U.S. custody. The teen was able to obtain an abortion, but Kavanaugh had dissented from the opinion that allowed it. Garza’s testimony is here.
10:36 a.m. ET. Two people speaking on behalf of Kavanaugh were former law clerk Luke McCloud and longtime friend Louisa Garry, a schoolteacher.
McCloud described Kavanaugh as a fair-minded and independent jurist who has worked hard to understand every argument and perspective. His prepared testimony is here.
Garry and Kavanaugh have run several marathons together. She recalled the time juniors from her school visited Kavanaugh. Kavanaugh explained his role as judge, issues before the court, and answered questions. Students were unable to discern whether he was conservative or liberal. Garry said that is how it is supposed to be. Her prepared testimony is here.
9:57 a.m. ET. Two members of the ABA Standing Committee on the Federal Judiciary on Friday explained the committee’s unanimous well-qualified rating for Supreme Court nominee Brett Kavanaugh.
Kavanaugh was evaluated by committee members from all 14 circuits, while his opinions were evaluated by three reading groups of about 48 law professors and distinguished practitioners. The ABA solicited input from about 500 people, including federal and state judges, lawyers and bar representatives. About 120 people were interviewed.
Sen. Lindsey Graham, R-S.C., asked whether Kavanaugh was in the mainstream.
“Absolutely, he’s at the top of the stream,” responded the standing committee member who led the review, John Tarpley of Nashville, Tennessee.
Graham asked if anyone had described Kavanaugh as radical. Tarpley said he never heard that word used.
Tarpley said people interviewed said Kavanaugh is a person of the highest morality and the highest ethics. “He is what he seems: very decent, humble and honest,” Tarpley said.
Kavanaugh’s judicial temperament received overwhelming praise, according to Tarpley. He keeps an open mind, is an affable, nice person, and has a good sense of humor, Tarpley reported. “Can you imagine that, a judge with a good sense of humor?” he asked.
Kavanaugh’s professional competence easily exceeds ABA criteria, Tarpley said. One evaluator described Kavanaugh as an excellent writer with a flair for making complicated facts very understandable.
Sen. Richard Blumenthal, D-Conn., asked whether the ABA is concerned about attacks on the judiciary.
Tarpley replied, “The ABA feels very strongly that a fair and independent judiciary is a linchpin of our society.”
The ABA’s statement is here.
The original story is below:
Testimony by the American Bar Association committee that rates federal judicial nominees highlights the fourth day of the confirmation hearings for U.S. Supreme Court nominee Brett Kavanaugh. Friday’s hearing starts at 9:30 a.m. ET.
On Aug. 31, the ABA Standing Committee on the Federal Judiciary gave its highest rating of well-qualified to Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia Circuit. The 53-year-old Kavanaugh was nominated July 9 to replace Justice Anthony M. Kennedy, who announced his retirement June 27. Kavanaugh is a former Kennedy clerk.
The standing committee has conducted nonpartisan evaluations of federal judicial nominees since 1953, examining each nominee on their professional competence, integrity and judicial temperament.
ABA committee representatives scheduled to appear before the Senate Judiciary Committee are standing committee chair Paul Moxley of Salt Lake City and former committee member John Tarpley of Nashville, Tennessee, who led the review.
A statement prepared by the ABA says, in part, that Kavanaugh “enjoys an excellent reputation for integrity and is a person of outstanding character.”
Regarding his professional competence, the committee says in the statement that “all of the experienced, dedicated and knowledgable sitting judges, legal scholars, and lawyers who have worked with or against Judge Kavanaugh had high praise for his intellect and ability to communicate clearly and effectively.”
Lawyers and judges “overwhelmingly praised” Kavanaugh’s judicial temperament, the statement says.
The ABA committee evaluated Kavanaugh three times between 2003 and 2006 when President George W. Bush nominated him to the D.C. Circuit. Kavanaugh received well-qualified ratings by a substantial majorities in 2003 and 2005, and a qualified rating in 2006.
ABAJournal.com: “Live blog of confirmation hearings, Day 1: Kavanaugh pledges an open mind in every case”
ABAJournal.com: “Live blog of confirmation hearings, Day 2: Kavanaugh answers ‘Purple Party’ president hypothetical”
ABAJournal.com: “Live blog of confirmation hearings, Day 3: Kavanaugh won’t say whether president’s character matters”