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.