The Kavanaugh Hearings: Day Three

“I’m not sure what the point is.”

Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on the third day of his Supreme Court confirmation hearing on Capitol Hill Sept. 6, 2018 in Washington, DC. Kavanaugh was nominated by President Donald Trump to fill the vacancy on the court left by retiring Associate Justice Anthony Kennedy.
Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee on the third day of his Supreme Court confirmation hearing on Capitol Hill Sept. 6, 2018 in Washington, DC. Kavanaugh was nominated by President Donald Trump to fill the vacancy on the court left by retiring Associate Justice Anthony Kennedy. (photo: Photo by Chip Somodevilla/Getty Images)

From the first moments of the confirmation hearings for Supreme Court nominee Judge Brett Kavanaugh, the Senate Judiciary Committee has both witnessed and caused a public spectacle.  On day one, the members of the Committee sparred over the release of documents as part of the confirmation process even as protesters from a constellation of far-left organizations disrupted the discussions only to be summarily removed from the hearing room.

Day Three of the hearings proved no different, although the grandstanding and drama were heightened by the possible violation of Senate rules by New Jersey Democrat Senator Cory Booker and the relentless questioning of Kavanaugh over abortion, the Mueller investigation and the constitutional questions surrounding Donald Trump and the presidency.

All of this only exacerbated an already unpleasant set of hearings and continued to short-circuit a serious examination of the genuinely pressing issues facing the country.


“Committee Confidential”

The melodrama began from the moment Committee chair Chuck Grassley, R-Iowa, opened the new day of questioning. While protesters shouted “Shame!,” the Democrats and Republicans went back and forth over the release of documents that might be relevant to the confirmation process.  Things then took a turn when Booker called for the release of so-called “committee confidential” documents. Booker proceeded to release the material, drawing a strong rebuke from Texas Republican Sen. John Cornyn, that it was conduct unbecoming of a Senator.  “Running for president is no excuse for violating the rules of the Senate or of confidentiality of the documents that we are privy to,” Cornyn said, making a pointed reference to Booker’s likely planned run for the White House in 2020. The release was also criticized as a cheap stunt by Republican Judiciary Committee aides as the documents in question had already been released.  

Booker, meanwhile, was hailed as a hero by his fellow Democrat Committee members and went on to dare the Republicans to oust him from the Senate. "Bring the charges,” he proclaimed. “Go through the Senate process to take on somebody you said is unbecoming to be a Senator, let's go through that process because I think the public should understand that at a moment someone is up for a lifetime appointment...I hope they'll follow through.”

The document itself pertained to an e-mail from Kavanaugh on the issue of racial profiling, and Grassley defended the on-going release of all requested evidence. “My staff was here until 3am trying to accommodate everyone who requested documents," Grassley charged.

This did little to assuage the Democrat members, especially Booker who tweeted, “What you do matters. What you say matters. No matter how big the fight. Or inevitable the conclusion seems. Stand up. Speak up. Wrong, temporarily victorious Is never greater than Right, forever vigilant.”


More on Roe v. Wade

Another one of the documents was seized upon by Senator Dianne Feinstein, D-Calif., who has concentrated most of her questions throughout on abortion. This, too, related to Roe v. Wade, was about an e-mail from Kavanaugh discussing the 1973 Supreme Court decision.  The e-mail had already been revealed by The New York Times, and in it, Kavanaugh was engaged in editing a draft op-ed about the decision. He made the comment in the e-mail, “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. The point there is in the inferior court point. – It is hundreds not thousands, I believe, who have obtained bypasses. My 2 cents. Thanks.”

Notably, the e-mail did not reveal Kavanaugh’s own personal views of Roe v. Wade or that he argued it should be overturned. Feinstein, however, read the e-mail and demanded an explanation from Kavanaugh in what some in the press considered the first serious “gotcha” moment of the hearings. Kavanaugh, however, was not rattled, replying, "My comment was overstating the position of legal scholars, it was not a technically accurate description in the letter.” As Feinstein continued to press on whether Kavanaugh thought this was settled law, he returned to his previous statements that the case is “important precedent of the Supreme Court, reaffirmed many times.”

The rest of the day was taken up with more protesters and more hard questioning. The interrogation ranged from same-sex marriage, to family separations and from civil liberties to the power of the president. Most of the ground had already been covered in the second day, but one exchange provided an additional insight into the preoccupation of many members of Congress: the limits of constitutionally protected executive privilege as decided by the High Court in the landmark case U.S. v. Nixon. Kavanaugh testified that he considers the case rightly decided unanimously against President Richard Nixon with its severe ramifications for the Watergate scandal. Kavanaugh termed the ruling “one of the four greatest decisions, and a correct decision.” Further discussion led to the question of how Kavanaugh defined precedent. He replied, “Precedent is important for predictability and stability.”


“They are tough as nails.”

Thursday did bring a few moments of levity.  Sen. Ted Cruz, R-Texas, asked Kavanaugh if he hopes to utilize the Supreme Court's basketball court, situated above the chambers and famously called the “Highest Court in the Land.” “I do, if fortunate enough to be confirmed...yes indeed,” answered Kavanaugh.  

Cruz, who was himself rumored to be a prospective Supreme Court pick, reminded Kavanaugh that the last time the court had been used was years ago when Justice Clarence Thomas was injured playing basketball with clerks.  Kavanaugh observed that this was one precedent set by Justice Thomas he hoped not to follow.

Kavanaugh also serves as head coach to his daughter's basketball team, and at one point the team made an appearance. Kavanaugh, called Coach K by the team members, introduced the players and said, “It's awesome to have them all here. They are tough as nails.”

Grassley also repeated a question that had been asked of Neil Gorsuch last year during his confirmation hearings: the call for camera access in the Supreme Court. Grassley noted that it was an important principle of transparency. The nominee would not commit on the matter, but he pledged to “have an open mind on it” if confirmed. Justice Gorsuch made a similar pledge.

The levity proved short-lived in another day of partisan bickering and another demonstration of the angry divide. The day had brought Senator Booker pushing the limits of Senate rules and traditions while referring to himself as the famed rebel against Rome, Spartacus. It had also witnessed what the Democrats had hoped would be a smoking gun of Kavanaugh’s real views on abortion. By the end of the day, the gambit had failed.  Much as West Virginia Sen. Joe Manchin – a vital swing vote in the Senate – said on Wednesday that he had seen nothing to disqualify Kavanaugh, another swing vote, Republican Susan Collins of Maine dismissed the new supposed revelations.  “I am told that he was editing an op-ed for clarity and was merely stating a fact that three judges on the court were anti-Roe,” Collins told Politico. “If that’s the case then, and it’s not expressing his view, then I’m not sure what the point is.”

That was one of the best questions of the day.

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