Judge Brett M. Kavanaugh is appearing before the Senate Judiciary Committee on Thursday as senators continue publicly interviewing President Trump’s nominee for the Supreme Court.
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Kavanaugh, a member of the U.S. Court of Appeals for the District of Columbia Circuit, has a good chance of being confirmed when the Senate votes later this month. Under questioning from senators, he has so far touched on Roe v. Wade, said courts — not the president — are “the final word” and, as the hearing began, watched drama unfold regarding Sen. Cory Booker (D-N.J.)’s pledge to release confidential documents.
Key moments from the hearing:
6:52 p.m.: Booker asks why Kavanaugh won’t recuse himself from the Mueller probe
Hours after Sen. Cory Booker (D-N.J.) took center stage with drama over some of the documents the committee had, he had a chance to speak to Kavanaugh, pressing the judge on a variation of a question he had been asked previously during the hearings: Why not recuse himself from any court matters that would involve the ongoing special counsel probe because, as Booker said, “it’s really important that the Supreme Court be above suspicion”?
Kavanaugh responded by saying doing so would mean showing he did not have judicial independence.
“All I would be doing is demonstrating that I don’t have the independence of the judiciary … that is necessary to be a good judge,” Kavanaugh responded. “All of the nominees who’ve gone before have declined to commit because that would be inconsistent with judicial independence.”
— Seung Min Kim
5:50 p.m.: Hearing pauses for dinner
The hearing was halted until 6:15 p.m. for a dinner break. After that, four senators will get their turns to question Kavanaugh before the committee opens up a new round of questioning.
5:15 p.m.: Kavanaugh declines to condemn Trump’s attacks on judiciary
Kavanaugh refused to repudiate what Sen. Richard Blumenthal (D-Conn.) described as President Trump’s “blatant, craven and repeated attacks” on the federal judiciary.
Blumenthal was referring to Trump’s criticism that Justice Ruth Bader Ginsburg “has embarrassed us all” and “her mind is shot.” Ginsburg had been critical of Trump, prompting him to make the comments on Twitter during the 2016 presidential campaign.
Kavanaugh took a pass, saying he did not want to “get within three Zip codes” of such a political controversy.
Blumemthal noted that the president’s first Supreme Court pick, Justice Neil M. Gorsuch, explicitly condemned Trump’s attacks as “disheartening” and “demoralizing.” Gorsuch spoke generally, but his comments came after the president had criticized the ethnic background of Judge Gonzalo Curiel, who ruled against the administration’s travel ban.
Sen. Mazie Hirono (D-Hawaii) followed up, suggesting that the judge was resisting any criticism of President Trump.
Kavanaugh disagreed. As a judge, he said, “We stay out of politics, we don’t comment on comments made by politicians.”
— Ann E. Marimow
5:08 p.m.: Blumenthal presses Kavanaugh on Mueller probe
The ongoing special counsel investigation into Russian interference in the 2016 election took center stage at the hearing again Thursday afternoon — this time, in a line of questioning from Sen. Richard Blumenthal (D-Conn.).
Following questions on Wednesday night and again Thursday morning, Kavanaugh was again pressed about special counsel Robert S. Mueller III’s probe, which could eventually make its way before a Supreme Court featuring Kavanaugh as a member.
Blumenthal asked Kavanaugh if he had ever discussed the investigation with anyone, and Kavanaugh echoed his earlier remark in saying: “I’ve had no inappropriate discussions with anyone.”
Blumenthal followed that by asking if the judge had ever discussed the investigation with anyone, whether appropriately or inappropriately. Kavanaugh acknowledged that it had come up — “If you’re walking around in America it’s coming up, senator” — but he also repeatedly emphasized that he never crossed any lines in discussing it.
“I’ve never suggested anything about my views about anything, commitments, foreshadowing, I’ve had no inappropriate discussions,” he said.
Blumenthal then pivoted to asking if Kavanaugh had discussed it with anyone in the White House, including Donald McGahn, the White House counsel seated behind Kavanaugh during the hearings. When Blumenthal asked Kavanaugh if he had discussed the probe with McGahn or anyone else in the White House, calling it a yes or no question, Kavanaugh said: “I’m not remembering any discussions like that.”
He added, though, that during his preparations for the confirmation hearings, he had readied for queries like the ones Blumenthal had posed. The questioning grew mildly tense, with Blumenthal suggesting that Kavanaugh’s answers were ambiguous, which the judge disputed.
After Blumenthal finished his questioning, Sen. Charles E. Grassley (R-Iowa) broke in to ask Kavanaugh if he had ever suggested to anyone how he would rule on any matter related to the Mueller probe, and the judge answered: “No, I have not.”
Blumenthal followed up his questions about the probe by asking whether Kavanaugh had discussed the inquiry with anyone at the law firm founded by President Trump’s personal lawyer, Marc Kasowitz.
Earlier on Thursday, the firm Kasowitz Benson Torres said in a statement that “no discussions” regarding the probe had occurred “between Judge Kavanaugh and anyone at our firm.”
When asked by Blumenthal, Kavanaugh echoed his earlier comments that he did not remember any discussions with anyone at the firm about the probe. When asked if he knew Kasowitz, Kavanaugh said no.
When asked if he knew anyone at the firm, Kavanaugh said yes, naming Ed McNally, who used to work at the White House counsel’s office and is now at the firm. Kavanaugh said he had not discussed the special counsel’s probe with McNally.
— Mark Berman
3:35 p.m.: Kavanaugh tries to clarify involvement in judge’s confirmation
Kavanaugh on Thursday discussed his involvement in the confirmation of now-Judge William H. Pryor Jr. to the U.S. Court of Appeals for the 11th Circuit — clarifying his testimony from 2004 when he said he hadn’t handled that nomination when he served as an associate White House counsel.
The nominee’s comments came after the new disclosure of emails earlier Thursday that detailed what appeared to be Kavanaugh’s involvement in Pryor’s confirmation fight, including conference calls to coordinate strategy and meetings to discuss plans for the nominee’s hearings.
Kavanaugh explained Thursday that in the George W. Bush White House counsel’s office, one person would be assigned to handle the confirmation of each judicial nominee. “As I recall at least, I was not the primary person on that,” Kavanaugh said, referring to Pryor’s nomination.
While Kavanaugh said he didn’t recall specifics of his involvement, some examples he cited were attendance at meetings and mock hearing sessions.
In 2004, during his confirmation hearing for the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh said several times under questioning by then-Sen. Edward M. Kennedy (D-Mass.) that he had not been involved with Pryor’s confirmation.
“I am familiar generally with Mr. Pryor, but that was not one that I worked on personally,” Kavanaugh testified then, although he noted during the hearing that he knew Pryor. Upon further questioning, Kavanaugh said: “I was not involved in handling his nomination.”
Kavanaugh, with the help of Grassley, clarified another one of the emails involving Pryor. On Dec. 16, 2002, Kavanaugh received an email from another White House aide with the subject line “CA11” — a reference to the 11th Circuit. The aide, Kyle Sampson, asked: “How did the Pryor interview go?” Kavanaugh then responded: “Call me.”
Grassley, noting that Democrats attempted to “insinuate that you interviewed Judge Pryor,” asked Kavanaugh: It’s “more likely to indicate that you know the people who interviewed Judge Pryor?”
Kavanaugh responded: “That sounds correct.”
— Seung Min Kim
2:56 p.m.: Kavanaugh elaborates on dissent on contraception and religious objections
Advocates for reproductive rights are concerned about the contraceptive-coverage requirement in the Affordable Care Act, widely known as Obamacare. In a 2015 case, Kavanaugh dissented from his colleagues and sided with the group Priests for Life, which argued that a provision in the law to opt out for religious objections was too burdensome.
Kavanaugh elaborated Thursday on the basis for his dissent, telling Sen. Ted Cruz (R-Tex.) that “the government had ways to ensure contraceptive coverage without doing so on the backs of religious objectors.”
The issue remains in court after the Trump administration issued new rules making it easier for employers to refuse to provide coverage for birth control on the basis of religious objections.
Cruz also asked the judge about a case on which he worked as a lawyer in private practice in which he backed a high school’s decision to allow student-led prayers over the public address system at football games. He argued that students were delivering their own messages, not speaking on behalf of the school. The Supreme Court disagreed, finding the policy unconstitutional.
“Religious people, speakers and speech are entitled to equal treatment,” Kavanaugh said Thursday.
— Ann E. Marimow
2:41 p.m.: Kasowitz firm denies discussing special counsel probe with Kavanaugh
In one of the most widely noticed parts of the hearings, Kavanaugh was questioned late Wednesday by Sen. Kamala D. Harris (D-Calif.) about whether he had discussed special counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 election with attorneys at the law firm founded by President Trump’s personal lawyer, Marc Kasowitz.
On Thursday, Kavanaugh was asked again about this by Sen. Orrin G. Hatch (R-Utah), who gave the judge an opportunity to clarify his responses to Harris. Kavanaugh said he did not “recall any conversations of that kind,” adding that he was not familiar with the names of all of the attorneys from the firm Kasowitz Benson Torres.
Kavanaugh said he had not had any “inappropriate conversations” or commented on his views about the legal aspects of the probe, elements of which could potentially make it to the Supreme Court.
On Thursday, the Kasowitz firm also said that no one there had discussed the probe with Kavanaugh.
“There have been no discussions regarding Robert Mueller’s investigation between Judge Kavanaugh and anyone at our firm,” the law firm said in a statement.
— Mark Berman
1:57 p.m.: Hearings resume after lunch break
After pausing for lunch, the hearings are getting back underway. The first hours brought an extended drama over documents as well as questions about abortion, executive power and the special counsel’s probe, with extensive questioning still expected for the remainder of the day.
1:38 p.m.: The drama over ‘confidential’ emails — which were already cleared for public release
Democrats mounted dramatic protests Thursday over documents related to Supreme Court nominee Brett M. Kavanaugh’s tenure in the George W. Bush White House, as senators began releasing his emails that had been withheld from the public.
The records that Sen. Cory Booker (D-N.J.) and Sen. Mazie Hirono (D-Hawaii) posted on their websites Thursday morning had, in fact, already been cleared for public release, according to Democratic and Republican aides on the Senate Judiciary Committee. Those documents were cleared earlier Thursday morning, according to spokesmen for both sides.
Nevertheless, the drama over the emails once marked “committee confidential” engulfed much of the third day of Kavanaugh’s confirmation hearings, with Booker vowing to disclose them in defiance of Senate rules.
“I openly invite and accept the consequences of releasing that email right now,” Booker said. “The emails are being withheld from the public have nothing to do with national security.”
Bill Burck, Bush’s presidential records representative, said later Thursday, “We cleared the documents last night shortly after Senator Booker’s staff asked us to. We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly. In fact, we have said yes to every request made by the Senate Democrats to make documents public.”
Such theatrics have characterized Kavanaugh’s hearings, in which Democrats have repeatedly complained that Republicans have withheld documents from the committee and the public that shed important light on Kavanaugh’s past.
The documents that took center stage on Thursday were labeled “committee confidential” — available for any senators to view but shielded from the public.
Late Wednesday, a handful of Democratic senators sent Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) several requests to make emails once marked “committee confidential” available to the public so they could discuss them during the public hearing on Thursday. Those records are being cleared as the Justice Department reviews them, as well as representatives for Bush.
Booker may have violated Senate rules late Wednesday, when he spoke about the content of emails that technically were still under “committee confidential” status at that point.
“You’ve also written that an effort designed to benefit minority-owned businesses, an effort to try to give them a fair shake because they had been historically excluded — and these are your words now — used a lot of legalisms and disguises to mask what is, in reality, a naked racial set-aside. That’s what you said. That’s how you referred to it,” Booker said, referring to one of the emails from Kavanaugh.
Later in his questioning, Booker referred again to the committee confidential emails: “I have letters here, sir, that have asked for — now, the one email specifically entitled racial profiling that somehow — I mean, literally the email was entitled racial profiling, that somehow was designated as something that the public couldn’t see. This wasn’t — this wasn’t personal information.”
Releasing “committee confidential” information violates Senate rules and could result in expulsion from the Senate. But whether the Senate actually pursues the violation is a separate question.
— Seung Min Kim
1:17 p.m.: Hearing pauses for lunch
Grassley paused the hearing for a lunch break, which he said would take 30 minutes but potentially longer, noting that senators have two votes scheduled this afternoon.
1:10 p.m.: Court orders, not the president, are “the final word,” Kavanaugh says
Senate Democrats raised concerns Thursday about the president’s attacks this week on the Justice Department and Kavanaugh’s broad view of executive power expressed in his legal opinions and speeches. In a tweet on Monday, Trump criticized Attorney General Jeff Sessions for the recent indictments of two Republican congressmen, the latest in a string of criticisms the president has levied against both Sessions and the department he leads.
“In this age of President Donald Trump, this expansive view of presidential power takes on added significance,” said Sen. Richard J. Durbin (D-Ill.).
Kavanaugh emphasized the importance of the separation of powers and an independent judiciary as a backstop.
“I’ve made clear in my writings that a court order that requires a president to do something or prohibits president from doing something is the final word in our system,” Kavanaugh said.
— Ann E. Marimow
12:32 p.m.: Hearing resumes
After a 15-minute break that lasted for about 25 minutes, Kavanaugh has taken his seat again to answer questions.
12 p.m.: Read Kavanaugh’s email on Roe v. Wade
In an email Kavanaugh wrote in 2003 that was made public Thursday, he argued against calling the decision “settled law of the land.”
In his email, Kavanaugh wrote that he was “not sure that all legal scholars refer to Roe” that way, noting that the Supreme Court “can always overrule its precedent.”
When asked about the email by Sen. Dianne Feinstein (D-Calif.) on Thursday, Kavanaugh said he was not expressing his own views, but rather those of “legal scholars.”
— Mark Berman
11:27 a.m.: Kavanaugh denies any “inappropriate conversations” about special counsel probe
Late Wednesday night, Sen. Kamala D. Harris (D-Calif.) questioned Kavanaugh about whether he had discussed the special counsel investigation into Russian interference in the 2016 election with attorneys at the law firm founded by President Trump’s personal lawyer Marc Kasowitz.
The exchange drew intense scrutiny online, and on Thursday, Sen. Orrin G. Hatch (R-Utah) gave Kavanaugh an opportunity to clarify his responses to Harris, who did not disclose with whom she suspected the judge may have had such conversations.
“I don’t recall any conversations of that kind,” Kavanaugh told Hatch, adding that he was not familiar with the names of all of the attorneys from the firm Kasowitz Benson Torres.
Kavanaugh stressed that he had not had any “inappropriate conversations” or commented on his views about the legal aspects of special counsel Robert S. Mueller III’s investigation that could make their way to the Supreme Court.
“No hints, forecasts, previews, winks — nothing about my view as a judge or how I would rule on that or anything related to that,” Kavanaugh said.
— Ann E. Marimow
11:20 a.m.: Emails show more involvement with controversial judicial nominee than Kavanaugh previously suggested
Kavanaugh testified in 2004 that he did not “personally” handle the nomination of a controversial George W. Bush judicial candidate: Judge William Pryor, who now sits on the U.S. Court of Appeals for the 11th Circuit. But emails made newly public early Thursday show more involvement than he appeared to indicate in his 2004 testimony.
On Dec. 16, 2002, Kavanaugh received an email, reviewed by The Washington Post, from another White House aide with the subject line “CA11” — a reference to the 11th Circuit. The aide, Kyle Sampson, asked: “How did the Pryor interview go?” Kavanaugh then responded: “Call me.”
Another email from June 5, 2003 reviewed by The Post showed Kavanaugh on an email chain with a handful of other officials, alerting them to a 4 p.m. conference call to “discuss Pryor and coordinate plans and efforts.” A separate email earlier that day, on which Kavanaugh was blind carbon copied, discussed a meeting that would be held the following day to “discuss nominee Bill Pryor’s hearing” the following week.
Kavanaugh was nominated by Bush on April 9, 2003, and his confirmation hearing was held June 11, 2003. He was confirmed in 2005.
In 2004 during his confirmation hearing for the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh said several times under questioning by then-Sen. Edward M. Kennedy (D-Mass.) that he had not been involved with Pryor’s confirmation.
“I am familiar generally with Mr. Pryor, but that was not one that I worked on personally,” Kavanaugh testified then. Upon further questioning, Kavanaugh said “I was not involved in handling his nomination.”
Pryor drew controversy because he had called Roe v. Wade “the worst abomination of constitutional law in our history.” As attorney general of Alabama, he had filed an amicus brief in a key Supreme Court case on gay rights, Lawrence v. Texas, that struck down state sodomy laws. Pryor wrote that states should “remain free to protect the moral standards of their communities through legislation that prohibits homosexual sodomy.”
Sen. Susan Collins (R-Maine), one of the swing votes on Kavanaugh’s nomination to the Supreme Court, voted against Pryor’s confirmation in 2005.
White House spokesman Raj Shah did not immediately return a request for comment on the newly disclosed Pryor emails.
A spokesman for the Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), said some previously “committee confidential” documents are being made public as they are cleared by the Justice Department. Other records that have been requested to be made public are still being reviewed by DOJ and representatives for Bush.
— Seung Min Kim
11:01 a.m.: Kavanaugh advised against calling Roe “settled law,” email shows
While he was a White House lawyer in the Bush administration, Kavanaugh advised against referring to the Supreme Court’s decision in Roe v. Wade as the “settled law of the land,” according to a 2003 email made public Thursday.
“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so,” Kavanaugh wrote after reviewing a draft of what was intended to be an op-ed in favor of a judicial nominee.
Kavanaugh addressed the decision on Wednesday, refusing to say whether he believed that Roe v. Wade, the decision that guaranteed a woman’s right to an abortion, was correctly decided. He also said the Supreme Court had affirmed it in subsequent cases.
On Thursday, Sen. Dianne Feinstein (D-Calif.) read aloud from Kavanaugh’s newly released email and said it has “been viewed as you saying you don’t think Roe is settled” and asked him to explain.
Kavanaugh said he was referring not to his own views, but to the “views of legal scholars.”