WASHINGTON (CN) – Judge Brett Kavanaugh touted judicial independence Wednesday as Senate Democrats grilled the Supreme Court nominee with pointed questions about his views of executive authority, including on the president’s authority over a special counsel.
Democrats drilled in on Kavanaugh’s views of executive power, raising concerns about whether he believes a president can fire certain executive branch officers, including a special counsel, at will.
Senator Chris Coons, D-Del., focused on public comments Kavanaugh made that questioned a now-expired independent counsel law and investigations into the president more generally.
Coons specifically asked about Kavanaugh calling the independent counsel statute, passed in the wake of Watergate, a “constitutional travesty.”
Kavanaugh noted many people shared his view that the independent counsel law rested on dubious legal footing, including many of the lawmakers who let the law expire in 1999.
But Kavanaugh would not answer Coons’ question about whether he would vote to overturn Morrison v. Olson, the case that upheld the now-expired independent counsel law, saying he views it as a “one-off” case that is no longer controlling on questions of executive power.
“That’s the hypothetical that you’re asking me, and I think what that depends on is is there some kind of restriction on for-cause protection, either regulatorily or statutorily, that is permissible that is different from the old independent counsel, for example,” Kavanaugh told Coons.
However, Kavanaugh assured senators he does not believe presidents are immune from criminal investigation or civil suits, just that it is a matter of whether the president must face such suits in office or after he or she leaves or is impeached.
“As I said, the Justice Department for 45 years has taken the position that the timing of a criminal process should be after the president leaves office,” Kavanaugh said.
Kavanaugh also would not answer when Senator Richard Blumenthal, D-Conn., asked if he would commit to recusing himself from cases raising questions about President Donald Trump’s criminal or civil liability.
“One key facet of the independence of the judiciary as I have studied the history of nominees, is not to make commitments on particular cases,” Kavanaugh said.
Though Kavanaugh said the judicial canon of ethics prevent him from addressing a hypothetical, the judge made repeated references this morning to the Supreme Court case where President Richard Nixon was ordered to turn over tapes of conversations in the Oval Office.
Kavanaugh said the Nixon case was correctly decided, but emphasized that it was correct as applied to the special counsel regulations in effect at the time.
Senator Cory Booker, D-N.J., pressed Kavanaugh on his views of racial profiling in security measures, police searches and affirmative action.
He particularly pointed to a set of emails he said revealed Kavanaugh did not object to a security proposal that involved racial program during the Bush administration, but because the emails were marked confidential, he could not publicly display them or share them with Kavanaugh.
Though Kavanaugh did not directly answer some of Booker’s questions, he assured the senator he is aware of the realities of race in the United States.
He noted he has made it a point to hire minority law clerks on the D.C. Circuit and that he consciously began reaching out to black law student organizations after hearing the Supreme Court justices were struggling to hire minority clerks because they draw from lower courts.
Touting the instances where he himself showed judicial independence, Kavanaugh pointed to his 2012 opinion in which the D.C. Circuit vacated the conviction of al-Qaida member Salim Ahmed Hamdan for material support of terrorism.
Kavanaugh noted that this Guantanamo Bay prosecution had been a high-priority one for the George W. Bush administration — which Kavanaugh served from 2001 to 2006 in various roles including White House staff secretary.
“I wrote the opinion reversing his conviction, even though it was a signature prosecution of the United States, even though it was a national-security case, because that was the right answer under the law,” Kavanaugh said. “It doesn’t matter who you are, where you come from, if you’re right under the law, you prevail.”
Keeping on the subject, Senator Dianne Feinstein, D-California, pressed Kavanaugh on comments he has made suggesting presidents should have some insulation from investigations and lawsuits.
Kavanaugh explained the statements he made on the topic did not reflect his constitutional views of investigations into a sitting president, but were rather part of a proposal to Congress regarding the Supreme Court’s suggestion in Clinton v. Jones that Congress could allow for the deferral of civil suits against the president.
“Here’s the bottom-line point: they were ideas for Congress to consider, they were not my constitutional views,” Kavanaugh said. “If the case came up where someone was trying to say this is a constitutional principle, I would have a completely open mind on that because I have never taken a position on the Constitution on that question.”
Feinstein also pressed Kavanaugh on his views of Roe v. Wade, asking whether the landmark abortion-rights case was correctly decided. Kavanaugh called the case “important precedent” and said because the court reaffirmed the decision in Planned Parenthood v. Casey, it is not a “run-of-the-mill” case that was decided once and never revisited.
“I understand the importance of the issue, I understand the importance that people attach to the Roe v. Wade decision, the Planned Parenthood v. Casey decision,” Kavanaugh said. “I don’t live in a bubble, I live in the real world, I understand the importance of the issue.”
Senator Dick Durbin, D-Ill., later in the hearing dug in on Kavanaugh’s statement in Garza v. Hargan, a case that came before the D.C. Circuit regarding a minor who sought an abortion after she was detained by immigration authorities for illegal entry.
A federal judge ordered the government to let her start the process for obtaining an abortion in Texas, but a D.C. Circuit panel featuring Kavanaugh reversed the decision, saying the government must quickly undertake a search for a sponsor. This would allow the government to bypass any role in the abortion, the panel wrote.
When the court ruled en banc to get J.D. an abortion, Kavanaugh wrote in dissent that the majority had found “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
Kavanaugh on Wednesday told Durbin he was applying the laws and precedent that underpin the requirements for minors seeking abortions.
Durbin questioned this, accusing Kavanaugh of creating roadblocks that were not in the law.
Kavanaugh assured him he was not advocating a specific policy, but rather applying the Supreme Court’s precedent.
“I’m a judge, I’m not making the policy decision,” Kavanaugh told Durbin. “My job is to decide whether that policy is consistent with law.”
Durbin appeared unsatisfied, however, with the answer.
“You are adding a requirement beyond the state of Texas’ requirements that there be some sponsor chosen who may or may not be consulted for this decision,” Durbin said. “And the clock is ticking on her pregnancy.”
Senator Kamala Harris, D-Calif., pressed Kavanaugh on his multiple references to his respect for precedent, asking the judge to confirm that the Supreme Court has the ability to overturn old cases. Kavanaugh said it does, but noted it is not a simple process the court undertakes lightly, especially with older cases.
“What I would say is there are a series of conditions that the Supreme Court must meet and the age of a precedent, as I think the Supreme Court itself has articulated many times, does ordinarily add to the force of the precedent and make it an even rarer circumstance where the court would disturb an old precedent,” Kavanaugh said.
During her nearly 30 minutes of questioning, Feinstein also attempted to pin down Kavanaugh’s views of gun rights, asking him about his dissenting opinion in the D.C. Circuit’s decision in Heller v. District of Columbia, which upheld Washington D.C.’s ban on semiautomatic rifles.
In the opinion, Kavanaugh said the Supreme Court’s earlier decision striking down the city’s ban on handguns required the D.C. Circuit to do the same for the regulations on semiautomatic rifles. Kavanaugh told Feinstein he reached this decision because he could not distinguish “as a matter of law” between a handgun and a semiautomatic rifle.
He pointed out semiautomatic rifles are widely owned in the United States, with millions in households throughout the country.
“In a nutshell, the basis of my dissent was I was trying to follow strictly, carefully, the Supreme Court precedent,” Kavanaugh said.
But Feinstein, who authored an assault-weapons ban in the 1990s, questioned this view of gun regulation, asking how Kavanaugh could find semiautomatic weapons cannot be regulated simply because they are in common use.
“You’re saying numbers determine common use?” Feinstein asked. “Common use is an activity. It’s not common storage, or retention, it’s use. So what you said was that these weapons are commonly used. They’re not.”
Each of the Senate Judiciary Committee’s 21 members have at least 30 minutes to pose questions to Kavanaugh, making it likely that the lengthy hearing will run well into the evening. The questions represent senators’ best opportunities to probe Kavanaugh’s record and receive explanations for some of the judge’s most controversial writings, opinions and speeches.
Judicial nominees typically avoid answering questions about previously decided or currently pending cases, citing canons of ethics that advise judges not to comment on “a matter pending or impending in any court.”
The confirmation hearing was dominated Tuesday by complaints from Democrats about documents they have not been able to review from Kavanaugh’s time in the George W. Bush White House.
The documents fight spilled over into the hearing Wednesday, especially when Senator Patrick Leahy, D-Vt., asked Kavanaugh about his knowledge of a scandal in which a Republican staffer in the early 2000s stole documents from Democratic senators, including Leahy.
Leahy asked Kavanaugh about a string of emails in which the staffer passed along information about Democrats’ plans for questioning Bush judicial nominees, with Leahy suggesting the information was stolen.
Kavanaugh said he did not have a “specific recollection” of the emails Leahy mentioned, but that it was not uncommon for the White House team marshaling judicial nominations through the Senate to send information about nominees.
“It just struck me as not uncommon at all to be talking with our [legislative] team about what senators on both sides think,” Kavanaugh said. “It didn’t strike me that it was always armed camps.”
Leahy then asked if anyone at the White House ever told Kavanaugh they had a “mole” telling them information about Democrats’ plans. Leahy heavily implied there was such an email, but that he could not show it to Kavanaugh because it was confidential.
“I am concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me,” Leahy said, referring to the staffer. “And that would contradict your prior testimony.”