"The broader point was simply that I think it was overstating something about legal scholars," Kavanaugh said Thursday. "And I'm always concerned with accuracy and I thought that was not quite an accurate description of all legal scholars.
Kavanaugh also repeated his answer that Planned Parenthood v. Casey, which reaffirmed Roe, is "precedent on precedent," giving it stronger standing in conversations about precedent. He would not say, however, whether Roe was correctly decided, citing nominee practice of not publicly taking positions on past Supreme Court cases.
As Kavanaugh's hearing continues, the senators are afforded less time than they had on Wednesday to grill the nominee. Senator Amy Klobuchar, D-Minn., on Thursday meanwhile renewed her questions about a 2009 article from the Minnesota Law Review in which Kavanaugh pondered whether presidents should be subject to criminal investigations or lawsuits.
Kavanaugh has explained he does not believe presidents should be forever immune from criminal or civil liability, but that the question is simply one of whether they should face lawsuits after they leave office, either at the end of a term or after impeachment. He also said the law review article was a proposal for Congress to consider and not a reflection of his views on the constitutional questions at issue.
But Klobuchar wondered how Congress could ever use its impeachment power if presidents cannot even face criminal investigations in office.
"I'm trying to understand in practicality, when you look at the last impeachment proceedings, how you would in effect do this if you didn't have an investigation," Klobuchar said. "These other ones have used independent counsel, they've used special counsel and if you don't have that, don't you effectively eviscerate the impeachment part of the Constitution?"
Kavanaugh responded that, even without a special counsel, Congress has a role in investigating the president before beginning impeachment proceedings.
"Historically, Congress has often had investigative bodies that have done the work," Kavanaugh said.
Kavanaugh also sought to distinguish the special-counsel system as it exists today from the now-defunct independent-counsel law, having questioned the constitutionality of the latter in the past.
The current Justice Department regulations have multiple differences from the independent-counsel law, which Congress allowed to expire in 1999, Kavanaugh explained.
"I want to emphasize that the special-counsel system that is in place now is something that I've specifically and repeatedly and expressly said is consistent with our traditions," Kavanaugh said Thursday.
The documents released Thursday by Senator Booker detail White House deliberations on a case regarding an affirmative action program in federal government contracting. In one email, Kavanaugh raises concerns about the fate of the regulation before the Supreme Court.
"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," Kavanaugh wrote in an August 2001 email. "I have no doubt that Rehnquist, Scalia, Thomas and Kennedy will realize as much in short order and rule accordingly - unless the court DIGs the case. I assume O'Connor will so rule as well, although that is less certain."
Another email shows Kavanaugh discussing the use of racial profiling programs in the wake of 9/11. He talked with co-workers in the White House about a "working group" on security policy and raised the question of how to approach airport security in the short term.
Kavanaugh explicitly says in the emails he "generally" favors a "race-neutral" security policy, but acknowledges such a program might take time to implement.
"The people who favor some use of race/natl origin obviously do not need to grapple with the 'interim' question," Kavanaugh wrote. "But the people (such as you and I) who generally favor effective security measures that are race-neutral in fact DO need to grapple - and grapple now - with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented.”
The committee posted on its official website on Thursday a set of documents Leahy, Coons, Blumenthal and Booker requested be made public. The documents Booker released are included in the now-public cache.
Taylor Foy, a spokesman for Senator Chuck Grassley, said Booker made the request to publicly release the documents just after midnight Thursday.
In a statement Thursday Booker’s office said the pressure by Senate Democrats was “able to shame the committee” into making the documents public.
Booker will keep releasing documents, spokeswoman Kristin Lynch said, “because Republicans are hiding Brett Kavanaugh’s record from the American people.”
Democrats have continued to press Kavanaugh about whether he has had discussions about Special Counsel Robert Mueller's investigation into the Trump campaign’s suspected collusion with the Russian government.
Senator Kamala Harris, D-Calif., asked Kavanaugh late Wednesday night if he had ever talked about the investigation with anyone at the law firm Kasowitz Benson Torres, which has long represented President Donald Trump. Kavanaugh seemed surprised by the question last night and did not directly answer, saying he was hesitant to do so without knowing everybody who is employed at the firm.
On Thursday, Kavanaugh told Blumenthal he does not believe he has talked about the Mueller probe with anyone at the firm, including Ed McNally, who worked in the Bush White House along with Kavanaugh.
Kavanaugh was careful when Blumenthal asked if he had ever talked about the investigation with anyone at the White House. He said he prepared for questions about Mueller with the team marshaling his nomination, but assured Blumenthal he did not have inappropriate conversations about the investigation with people in the White House.
"I have not had discussions, if I'm understanding your question correctly, I haven't had such discussions, but I want to make sure I understand your question correctly," Kavanaugh said.
He also definitively said he has not given assurances or expressed his opinion to anyone about the Mueller investigation.
As for whether a sitting president can be indicted, Kavanaugh told Booker he would have an "open mind" should the question come before the high court.
The judge would not commit to recusing himself from cases involving Trump in the future, saying doing so would undermine his judicial independence.
"Discretionary recusal as a commitment to get a job or discretionary non-recusal as a commitment to get a job, either direction, would be violating my independence as a sitting judge and as a nominee to the court," Kavanaugh told Harris later in the hearing.
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