President Trump’s Supreme Court nominee, Brett Kavanaugh, returns to the hot seat Wednesday for a marathon day of questioning from members of the Senate Judiciary Committee.
Committee Chairman Chuck Grassley (R-Iowa) said each of the 21 members on the committee will get 30 minutes to question the D.C. Circuit Court of Appeals judge.
{mosads}Democrats warned Kavanaugh in their opening remarks that they plan to press him about his views on executive privilege and whether he believes the landmark Supreme Court decision that legalized women’s right to abortion was rightly decided.
If Wednesday’s hearing is anything like Tuesday, senators will again find themselves battling to speak over protesters. Capitol Police arrested 70 people protesting at Tuesday’s hearing as committee members gave their opening remarks.
The proceedings are slated to begin at 9:30 a.m. and the questioning is expected to last for at least 12 hours.
Panel wraps second day of hearing
10:09 p.m.
The Senate Judiciary Committee wrapped up its second day of the week-long hearing on Kavanaugh’s Supreme Court nomination.
Sen. Thom Tillis (R-N.C.), a member of the committee, gaveled the hearing out at 10:07 p.m.
“We appreciate you being here. … I actually want to thank the members on both sides of the aisle,” Tillis added as he wrapped up the meeting. “I think it was a sea change difference.”
The second day of the hearing lasted for nearly 12 hours, with the hearing commencing at 9:30 a.m.
Kavanaugh underwent hours of questioning from the 21 members of the panel on topics ranging from executive authority to special counsel Robert Mueller’s probe into Trump’s possible obstruction of justice, in addition to abortion and healthcare.
Kavanaugh will return for his final day of questioning at 9:30 a.m. on Thursday, where senators will have a second round of questions. Thursday’s session is expected to wrap around 5:30 p.m.
— Jordain Carney
Tillis accuses Dems of ‘double standard’
10:09 p.m.
Tillis accused Democrats of having a “double standard” when questioning Kavanaugh about his knowledge of sexual harassment allegations against former 9th Circuit Court Judge Alex Kozinski before they were reported.
Tillis was responding directly to Sen. Mazie Hirono’s (D-Hawaii) questioning of Kavanaugh’s knowledge of the accusation waged against the judge for whom Kavanaugh previously clerked.
Kavanaugh, in response to Hirono’s questioning, said he had never seen sexual harassment by his former boss.
“We had a member in the U.S. Senate faced with a number of allegations of sexual harassment by women,” Tillis said referring to but not directly mentioning former Sen. Al Franken (D-Minn.) who stepped down early this year amid pressure late last year to resign in the face of sexual misconduct allegations. “When those allegations surfaced they even included photographs in terms of the behavior in question.”
But, Tillis said, when reporters asked members about whether the senator should resign, senators responded “that’s not a distraction the Senate should be dealing with.”
Tillis’s comment was a direct swipe at Hirono, who first said it was a “distraction” to call for Franken’s resignation after the sexual allegations against him were first reported. She would later go on to call for his resignation.
“I feel like tomorrow, if we go down that path, we should be prepared to fully explore the double standard and perhaps the questions we should have for other people who worked with Judge Kozinski,” Tillis added.
— Lydia Wheeler
Harris to Kavanaugh: Have you talked about Mueller’s investigation?
9:43 p.m.
Sen. Kamala Harris (D-Calif.) began her questioning of Kavanaugh with a direction question: Have you talked about special counsel Robert Mueller or his investigation?
“Well it’s in the news, everyday,” Kavanaugh said.
When Harris followed up if Kavanaugh had discussed Mueller or his probe with “anyone,” Kavanaugh added: “With other judges I know.”
Harris repeatedly pressed whether Kavanaugh had talked about Mueller or his probe with anyone at Kasowitz Benson & Torres, the law firm founded by Marc Kasowitz, Trump’s lawyer.
“Have you had any conversation about Robert Mueller or his investigation with anyone at that firm?” Harris asked again, adding: “yes or no?”
When Kavanaugh replied that he wasn’t sure he knew everyone who worked at the law firm, Harris fired back: “I think you need to.”
“I think you need to know who you talked with. Who’d you talk to?” Harris asked.
Harris appeared skeptical that Kavanaugh couldn’t remember if he had discussed Mueller, saying he had an “impeccable memory.”
“How can you not remember whether or not you had a conversation about Robert Mueller or his investigation with anyone at that law firm?” Harris asked.
Kavanaugh inquired to know the person Harris was thinking of, but the California Democrat quipped: “I think you’re thinking of someone and you don’t want to tell us.”
The move drew laughter from those in the hearing room.
But Sen. Mike Lee (Utah) intervened on behalf of Kavanaugh, arguing that he couldn’t be expected to know everyone who worked at the law firm and noting that Washington is “abound” with law firms.
“If there is a list of names he can be given … I think that’s fine, but I think it’s unfair to suggest that an entire law firm should be [imprinted] into the witness’s memory when he doesn’t know who works at the law firm,” Lee added.
A protester interrupted Lee, yelling for him to “Be a hero. Vote no.”
“You have a responsibility to all Americans. Be a hero and vote no,” she screamed.
Harris and Kavanaugh then went back and forth over whether the Supreme Court pick had talked with someone about Mueller’s probe and over the wording of Harris’s question.
“The fact that it’s ongoing, it’s a topic on the news every day. I talked to, it’s uh, I talk to fellow judges about it. …So the answer is yes,” Kavanaugh added.
Kavanaugh added that he would be “surprised” if he had spoken to anyone at the law firm but wasn’t sure.
“I’m not remembering anything like that, but I want to know a roster of people and I want to know more,” he said.
Asked about Harris’s questions about the law firm, a Democratic aide told reporters that they have reason to believe a conversation happened.
The Hill has reached out to Harris’s office for comment.
— Jordain Carney
Kavanaugh refuses to comment on Charlottesville protests
9:41 p.m.
Harris pressed Kavanaugh about whether he agreed with Trump’s statement last year following the violent white nationalist protests and counterprotests in Charlottesville, Virginia, when he said that there was “blame on both sides.”
Kavanaugh said the independence of the judiciary prevents judges from commenting on current events or politics.
“With all due respect, I only have limited time,” Harris said. “Are you saying it’s too difficult a question or a question you can’t answer, which is whether you agree with the statement that there was ‘blame on both sides?'”
Harris said they could move on, but she wanted to know if Kavanaugh cannot answer the “simple question.”
Kavanaugh said he can’t insert himself into politics by commenting on political events or commenting on things said by politicians.
“I’m not here to assess comments made in the political arena because the risk is I’ll be drawn into the political arena,” he said.
— Lydia Wheeler
Kavanaugh has concerns about cameras in the courtroom
9:16 p.m.
Kavanaugh refused to say whether he believes Supreme Court proceedings should be televised.
Sen. John Kennedy (R-La.) asked Kavanaugh if cameras in the courtroom would help restore the public’s confidence in the courts.
While Kavanaugh noted the D.C. Circuit now releases real-time audio of its proceedings, he said Supreme Court nominees in the past have expressed their support for cameras in the courtroom, only to change their minds once they reach the bench.
Kavanaugh said oral arguments are a time for judges to ask tough questions of both sides, but he also said people may get the wrong impression given that media reports now tend to predict how judges are leaning based on their questions.
The Supreme Court nominee did note that opinions are announced separately, suggesting that part of the court’s proceedings could be televised.
Kennedy told Kavanaugh that he has to trust people.
“People don’t read Aristotle every day, but they’ll get it,” he said. “They’ll figure it out.”
— Lydia Wheeler
Lee knocks Booker over referencing ‘committee confidential’ documents
9:09 p.m.
Sen. Mike Lee (R-Utah) jabbed at Sen. Cory Booker (D-N.J.) while questioning Kavanaugh, saying the Democratic senator referenced “committee confidential” documents, which haven’t yet been released publicly.
Booker went back and forth, questioning Kavanaugh about his views on racial inequality, referring to emails from his work as a White House lawyer for former President George W. Bush.
Kavanaugh, at one point, asked to see the email, which Booker said he would deliver later.
But Lee immediately jumped in after Booker finished questioning Kavanaugh, noting the “document that was referred to by … Senator Booker was designated as committee confidential.”
“The rules of fairness and the rules of the committee require us to treat our witnesses with respect … you can’t cross-examine somebody about a document that they can’t see,” Lee said speaking to Booker from across the committee room.
Lee added that Booker had two options if he wanted to discuss “committee confidential” documents with Kavanaugh: Do so in the closed-door portion of the hearing or get the classification removed from the documents.
“The one thing we cannot do is refer to a document, cross examine him about that document but not even let him see it, because he can’t see it,” Lee added. “We wouldn’t do that in a court room and we can’t do that in our committee. Our rules don’t allow it.”
Booker noted that he wasn’t the first senator to reference “committee confidential” paperwork, adding that the committee’s process is “rigged.”
“Literally the email was entitled ‘racial profiling,’ that was somehow designated as something the public couldn’t see,” Booker added.
Booker said that while he understood Lee was arguing the committee had a “process,” he believed the process was “unfair, it is unnecessary, it’s unjust.”
Lee said he agreed that there was “no reason” senators shouldn’t be able to talk about documents in public but “regardless we do have to follow procedure.”
Senators then moved on with Kennedy’s questioning of Kavanaugh before he pivoted to ask “gentlemen take it outside, would you?”
Booker and Lee were talking on the side of the committee room.
— Jordain Carney
Booker grills Kavanaugh on affirmative action
8:44 p.m.
Sen. Cory Booker (D-N.J.) pushed Kavanaugh on his views on race-conscious policies.
Booker repeatedly asked Kavanaugh if he agreed with the late Justice Antonin Scalia, who believed it was never permissible for the government to use race to remediate past discrimination to achieve justice.
“Do you think someone who could not get a loan from the Housing Department is racial entitlement or are they seeking racial justice?” Booker asked. “Do you think a person who tried to remedy the fact that they were denied a chance to go to college under the G.I. Bill because of the color of their skin is seeking racial entitlement or are they seeking racial justice?”
Kavanaugh said Supreme Court precedent allows race-conscious programs in certain circumstances.
“But, to your point, when you’re trying to remedy past discrimination as a general proposition, you’re seeking racial equality and seeking to remedy past discrimination and the lingering effects,” he said.
“So you disagree with Scalia?” Booker asked.
Kavanaugh again tried to explain the Supreme Court precedent, before Booker interrupted.
“I know what the precedent is. I know what the law is. I’m asking what do you believe?” Booker asked, noting Kavanaugh had quoted Scalia’s view in an opinion piece, a law journal article and a court brief for a client.
— Lydia Wheeler
Kavanaugh: Trump isn’t above the law
7:32 p.m.
Kavanaugh said that a president isn’t “above the law,” after Sen. Ben Sasse (R-Neb.) rattled off concerns from protesters that he would protect Trump if confirmed to the Supreme Court.
“The president is subject to the laws. No one is above the law in the United States, including the president of the United States,” Kavanaugh told Sasse.
Sasse then used a hypothetical president from the “purple” party that gets drunk and hits someone with their car to press Kavanaugh on whether that hypothetical president would be “immune” from being sued or charged with a crime.
“No one has ever said, I don’t think, that the president is immune from civil and criminal process. So, immunity is the wrong term to even think about in this process,” Kavanaugh said.
He added that the debate was about “timing.”
“The only question that’s ever been debated is whether the actual process should happen while still in office,” Kavanaugh said.
— Jordain Carney
Hirono raises ‘Me Too’ movement in Kavanaugh hearing
7:22 p.m.
Sen. Mazie Hirono (D-Hawaii) raised questions over Brett Kavanaugh’s knowledge of the sexual harassment and assault allegations against former 9th Circuit Court of Appeals Judge Alex Kozinski, who resigned last December after the allegations were reported by The Washington Post.
Kavanaugh clerked for Kozinksi.
“Let me just put this into context because you have basically testified that you saw no evidence of this kind of behavior at all, that you never heard of it, yet you worked closely with him on a number of projects … you kept in touch with him while you [were] in the White House, he introduced you to the Senate at your 2006 nomination hearing and he called you his good friend,” she said.
Hirono went on to note that the two attended Federalist Society panels together and at one Kavanaugh patted Kozinski on the shoulder and said he learned from the master about hiring law clerks.
Hirono went on from the topic to a broader question for Kavanaugh.
“If a judge was aware that another judge was engaging in sexual harassment or sexual assault, would they have a duty to report it?” she asked.
Kavanaugh said if he had heard of the accusations he would have reported it to several people, even to Supreme Court Chief Justice John Roberts if he wasn’t satisfied with their responses.
“Someone that you’ve been close to that you’ve clerked for … yet you heard nothing, saw nothing and obviously you did not say anything. This is why the ‘Me Too’ movement is so important because often in these kinds of situations where there are power issues involved … Often it’s is an environment where people hear nothing, see nothing and say nothing,” she said.
Kavanaugh said he agrees completely with Hirono.
— Lydia Wheeler
Kavanaugh dodges when asked about Trump’s tweet
6:38 p.m.
Kavanaugh repeatedly dodged when asked by GOP Sen. Jeff Flake (Ariz.) about Trump’s tweet in which he appeared to criticize Attorney General Jeff Sessions for investigations into two GOP lawmakers.
Flake read Trump’s tweet to Kavanaugh before asking “should a president be able to use his authority to pressure executive or independent agencies to carry out directives for purely political purposes?”
But Kavanaugh sidestepped, saying judges shouldn’t comment on “the latest political controversies.”
“I understand the question but I think one of the principles of judicial independence that sitting judges … and nominees sitting here need to be careful about is commenting on current events or political controversies,” Kavanaugh said.
Flake then quipped for Kavanaugh to “forget I just said that,” and then asked a similar question without mentioning Trump.
But Kavanaugh said the “hypothetical” question was “analogous to the current event.”
“I need to stay not just away from the line, but three zip codes away from the line of current events or politics,” Kavanaugh said.
— Jordain Carney
Blumenthal suggests Kavanaugh’s abortion ruling got him on Trump’s Supreme Court short list
6:35 p.m.
Sen. Richard Blumenthal (D-Conn.) suggested Wednesday evening that Kavanaugh’s dissent from a D.C. Circuit Court’s decision involving an immigrant teen in federal custody earned him a spot on Trump’s short list for the Supreme Court.
Kavanaugh voted to vacate a lower court’s ruling that would have allowed the immigrant teen to have an abortion.
Blumenthal noted that Kavanaugh did not appear on Trump’s first list of potential Supreme Court nominees in May 2016, but was named on the second list he circulated in November 2017.
“October of 2017: your decision and dissent in Garza occurred, correct?” he asked, smiling.
“It did, but that case came to us in an emergency posture,” Kavanaugh said. “I didn’t seek that case. That wasn’t a speech.”
Blumenthal asked what occurred between May 2016 and November 2017, besides his dissent in Garza, that put him on that list. Kavanaugh explained that the president had taken office by then and that Don McGahn was White House counsel.
“Uh, those are just facts and then what else happened I …” he said, trailing off.
“It’s a mystery,” Blumenthal said.
“No it’s not a mystery. I’m just debating whether I want to say,” Kavanaugh said, before stating that a number of lawyers and judges he knows made clear to various people that they thought he should be considered based on his record over the last 12 years.
“I appreciate that,” he said.
“Maybe more of a few of them cited your dissent in Garza,” Blumenthal quipped.
— Lydia Wheeler
Kavanaugh sidesteps question about recusing himself from Trump cases
5:45 p.m.
Kavanaugh demurred when asked if he would recuse himself from cases tied to Trump that come before the Supreme Court.
Sen. Richard Blumenthal (D-Conn.) asked if Kavanaugh would recuse himself from issues tied to Trump’s “criminal or civil liability” that come before the Supreme Court.
“Senator, one of the core principles I’ve articulated here is the independence of the judiciary,” Kavanaugh said. “One key facet of the independence of the judiciary … is to not to make commitments on particular cases.”
Blumenthal interrupted Kavanaugh saying he would take the answer “as a no. It’s really a yes or no question.”
Kavanaugh said he should not make a commitment about a particular case that could come before him “to be consistent with the principle of independence of the judiciary.”
Some Democrats, including Blumenthal, have called on Kavanaugh to recuse himself from cases involving Trump.
Democrats worry that Kavanaugh, if confirmed, would vote to protect Trump from special counsel Robert Mueller’s investigation.
— Jordain Carney
Coons pushes Kavanaugh on executive powers
5:00 p.m.
Sen. Christopher Coons (D-Del.) directly asked Kavanaugh whether he still believes, as he wrote in 1998, that a president can fire at will a prosecutor who is criminally investigating him.
Kavanaugh said that’s a question of precedent that could come before him as a judge on the D.C. Circuit Court of Appeals or if he’s confirmed as a Supreme Court justice.
“It is governed by precedent you’d have to consider,” he demurred.
Coons said he had just asked if Kavanaugh stands by his own record.
“Is that still your view,” Coons asked. “I’m not asking for a recitation of precedent. We will get into some precedent later. I’m just trying to make sure I understand if you stand by that publicly expressed view back in 1998.”
“I think all I can say, senator, is that was my view in 1998,” Kavanaugh said.
— Lydia Wheeler
Kavanaugh defends his ruling on net neutrality
3:40 p.m.
Sen. Amy Klobuchar (D-Minn.) accused Kavanaugh of going out of his way to dissent against the D.C. Circuit’s decision to uphold net neutrality protections.
Klobuchar argued the rules from the Federal Communications Commission (FCC) are the bedrock of a free and open internet but she said Kavanaugh wrote in his opinion that the FCC lacked the authority to issue the rules because they were major regulations.
“To me, it feels like Congress set up the FCC and the FCC is doing its job in a really complex subject matter. They put forward these rules on net neutrality and then you insert your judgment to say that they are unconstitutional. So, tell my why I’m wrong,” she said.
Kavanaugh said he based his ruling on the major rules doctrine, which is rooted in Supreme Court precedent.
“I felt bound by precedent,” he said.
— Lydia Wheeler
Progressives to Dems: Release ‘committee confidential’ documents
3:35 p.m.
A coalition of progressive groups are urging Democrats on the committee to release any “committee confidential” documents that they have that could show that Kavanaugh lied.
Demand Justice, MoveOn, and NARAL Pro-Choice America are jointly calling on Democrats to “unilaterally release” any relevant records.
“Democratic senators must put an end to this secretive sham. They know that nothing in the Senate Standing Rules or Judiciary Committee Rules grants Grassley sole authority to designate documents ‘Committee Confidential’ or prohibit their public release,” the groups said in a joint statement.
They added that if there are relevant records “they must immediately read them into the Senate record. The public has a right to know.”
The statement comes after Sen. Patrick Leahy (D-Vt.) appeared to suggest during his questioning that the committee has documents from Kavanaugh’s time as a White House counsel that were related to a 2002 hack of Democratic files by a then-GOP aide but that the documents are currently marked “committee confidential.”
— Jordain Carney
Kavanaugh demurs on documents fight
3:15 p.m.
Kavanaugh sidestepped the heated fight over his White House documents.
Asked if he had a personal objection to documents from his three-year period as staff secretary being released, Kavanaugh sidestepped, saying it wasn’t up for him to decide.
“Senator, I’m not going to take a position. That’s, in my view, a decision for the committee” to make, Kavanaugh said in response to a question from Sen. Amy Klobuchar (D-Minn.).
Pressed to confirm he wasn’t going to say if he had a personal objection, Kavanaugh added that he didn’t “think it’s my role to say.”
“That’s a decision for the committee, and the executive branch and the presidential library,” Kavanaugh added.
Democrats have clamored to see documents from Kavanaugh’s work as a staff secretary, arguing it could shed light on his thinking on issues like torture and surveillance.
Grassley momentarily jumped into the exchange to note that Klobuchar had access to documents from Kavanaugh’s work as a White House counsel that are currently marked “committee confidential.”
When Klobuchar reiterated that she was asking about staff secretary documents, Grassley quipped: “I stand corrected.”
— Jordain Carney
Committee takes second recess
2:55 p.m.
The panel is taking a brief second recess with roughly half of the panel still left to question Kavanaugh.
GOP Sen. Mike Lee (Utah), who is presiding for Grassley, said they would take a 10-minute break.
— Jordain Carney
Trump praises Kavanaugh during hearings
2:30 p.m.
Trump praised Kavanaugh’s performance Wednesday afternoon as his nominee fielded questions for a second day before the Senate Judiciary Committee.
“I’m happy with the Kavanaugh hearings,” the president said in the Oval Office. “He’s an outstanding intellect, he’s an outstanding judge.”
“The other side is grasping at straws and really the other side should embrace him.”
— Lydia Wheeler
Sen. Whitehouse grills Kavanaugh on Federalist Society
2:15 p.m.
Sen. Sheldon Whitehouse (D-R.I.) repeatedly pressed Kavanaugh about what level of involvement the Federalist Society had in his nomination.
But Kavanaugh demurred, saying he wasn’t sure what role, if any, the conservative legal group had in him getting selected to succeed Justice Anthony Kennedy.
“I don’t know. I don’t know the specifics,” Kavanaugh said.
Kavanaugh, recounting how he was nominated, said Don McGahn, the White House counsel, called him the day Kennedy announced he would retire. Kavanaugh subsequently met with Trump.
McGahn, according to The New York Times, has quipped that the judicial selection process has been “insourced” because so many Federalist Society members are lawyers at the White House.
Asked what McGahn meant, Kavanaugh said he didn’t know.
“I’m not sure what Mr. McGahn meant,” Kavanaugh said, but added that “lawyers in the administration are Federalist Society members.”
Kavanaugh, during his time as a White House counsel, complained about the media’s characterization of him, including the media’s claim that he was still a member of the Federalist Society.
— Jordain Carney
Whitehouse presses Kavanaugh on pre-existing conditions
2:10 p.m.
Whitehouse had a heated exchange with Kavanaugh, pressing him on whether he would uphold a statute that requires insurance companies to provide coverage for people with pre-existing conditions.
Whitehouse said Kavanaugh told him during their meeting that he could provide no assurance he would uphold the ObamaCare provision.
“The statement you made, is it still accurate and true today?” Whitehouse asked.
Kavanaugh tried repeatedly to explain his decision, but was cut off by Whitehouse.
“I really would like you to be as careful with your time as you can,” he said, adding the quicker Kavanaugh could get to his answer the better.
“It could be as simple as ‘yes’ or ‘no,'” Whitehouse said.
Kavanaugh told Whitehouse he could enhance his understanding if he explained his answer.
“I really just want you to say ‘yes’ or ‘no,'” Whitehouse said. “I’m really capable of understanding it on my own.”
Kavanaugh said that “all eight sitting justices on the Supreme Court have made clear it would inconsistent with judicial independence, rooted in Article III, to provide answers on cases or issues that could come before us.”
— Lydia Wheeler
Democrats force Senate to adjourn early
1:40 p.m.
Democrats forced the Senate to adjourn early on Wednesday amid a fight over Kavanaugh’s nomination.
Senate Majority Leader Mitch McConnell (R-Ky.) tried to get permission for committees to meet, a routine request for committee meetings, but Senate Minority Leader Charles Schumer (D-N.Y.) objected.
“Senator Schumer objected to waiving the rule, because Democrats believe that the Senate Judiciary Committee Republicans have made a mockery of this process by withholding millions of pages of documents from Judge Kavanaugh’s records,” Matt House, a spokesman for Schumer, said in an email to reporters that highlighted the decision.
Schumer, separately, added that Democrats were refusing to “consent to business as usual on the Senate floor today.”
Under the Senate’s rules, committees need permission to meet after the Senate has been in session for two hours. The request is routinely granted.
The move immediately appeared to rankle Republicans, who called Schumer out over the tactic.
“Unfortunately some of the hijinks continue even on the Senate floor,” said Sen. John Cornyn (R-Texas), in Kavanaugh’s hearing. “That’s unfortunate.”
— Jordain Carney
Durbin grills Kavanaugh on teen abortion ruling
1:15 p.m.
Sen. Dick Durbin (D-Ill.) pushed Kavanaugh on why he dissented from the D.C. Circuit Court of Appeals decision last year that allowed an immigrant teen in federal custody to obtain an abortion.
Kavanaugh argued that the girl at the heart of the case was a minor.
If she had been an adult, he said she would have had the right to obtain an abortion immediately, but as a minor, the government argued it was appropriate for her to be transferred to an immigrant sponsor — a family member or friend — whom she could consult with about her decision.
Kavanaugh said he looked at the closest Supreme Court precedent on the issue in the case and found the high court had repeatedly upheld parental consent laws over objections of dissenters who thought that would delay the abortion procedure.
Durbin said he was missing a major point.
“You’ve just bypassed something,” he said pointing right the nominee. “You just bypassed the judicial bypass, which she received from the state of Texas when it came to parental consent. That’s already happened here and you’re still stopping her.”
“I’m not,” Kavanaugh said, arguing that the government reasoned that placing her with an immigration sponsor would allow her to consent with an adult in making that decision.
“But judge, the clock is ticking,” Durbin said. “The 20-week clock is ticking. She made the decision early … You are suggesting she should have waited to have a sponsor appointed who she may or may not consulted in making this decision.”
— Lydia Wheeler
Durbin, Kavanaugh battle over detention policy
1:00 p.m.
Durbin doubled down on his questions on if Kavanaugh misled the committee about his role on Bush-era detention policy.
Kavanaugh told the Judiciary Committee in 2006 that he was “not involved” in “questions about the rules governing detention of combatants.”
Durbin told Kavanaugh that the nominee told him during their closed-door meetings that he was involved in discussions on detainees and detained U.S. combatants.
But Kavanaugh reasserted that his answer from 2006 was “100 percent accurate.”
“I understood the question then and the answer then, and understand the question now and the answer now, to be 100 percent accurate,” Kavanaugh told senators in response to Durbin.
Kavanaugh pointed to the Senate’s so-called “torture report,” which he noted did not mention him.
Durbin appeared exasperated adding that Kavanaugh was “clearly … involved about rules governing detention of combatants.”
Durbin also asked Kavanaugh if he was involved in a 2005 signing statement from Bush that warned he could try to leapfrog a bill that would have outlawed the torture of detainees.
Kavanaugh said he couldn’t recall what he said about the signing statement.
“I can’t recall what I said. I do recall that there was a good deal of internal debate about that signing statement, as you could imagine,” Kavanaugh said. “I remember it was controversial internally.”
— Jordain Carney
Durbin presses Kavanaugh on missing documents
12:50 p.m.
Durbin opened his line of questioning after the lunch break by pressing Kavanaugh on whether he knew thousands of documents related to his time in the White House would be withheld from the committee.
Durbin asked him if the people working on his nomination cleared with him their decision to withhold documents.
“No I was not involved in the documents process or substance,” Kavanaugh said.
“No one told you, you would be the first Supreme Court nominee to assert executive privilege to limit access to 100,000 documents related to your time in the White House?” Durbin asked.
Kavanaugh said he studied the nominee precedent and this came up in the confirmation hearings for the late Supreme Court Justice Antonin Scalia.
“That’s a decision for the Senate and the Executive Branch to work out in terms of the decisions that were made,” he said.
Durbin pressed on.
“You are now embarking on this journey in this committee denying us access to documents that were routinely provided for other nominees,” he said. “You had to know this was taking place.”
— Lydia Wheeler
Lighthearted moment just before lunch
12:15 a.m.
The hearing took a lighthearted turn just before Grassley called for a 30-minute lunch break.
Sen. Lindsey Graham (R-S.C.) asked Kavanaugh how he’d like to be remembered “when all is said and done” and his time is up.
Kavanaugh paused for a moment.
“A good dad. A good judge,” he said.
Sen. Dianne Feinstein (D-Calif.) then interjected.
“A good husband,” she said.
“I think he’s getting there,” Graham said.
Kavanaugh nodded and smiled as the room broke into laughter.
“A good husband,” he agreed.
Chuckling, Graham thanked Feinstein.
“Thanks, Dianne. You helped him a lot,” he said, before turning to Kavanaugh. “It’s going to be better for you tonight.”
— Lydia Wheeler
In an unprecedented move, Leahy plays video clip to question Kavanaugh
11:55 a.m.
Leahy, in an unprecedented move, played a video clip of testimony Kavanaugh provided to the committee in 2006 during his confirmation hearing to the D.C. Circuit Court of Appeals.
The TV screens in the hearing room switched from the live proceedings to a clip of a younger Kavanaugh, telling Leahy he had heard nothing about former President George W. Bush’s warrantless wiretapping program before The New York Times reported in December 2005 that the president had secretly authorized the National Security Agency to eavesdrop on Americans.
When the clip ended, Grassley interjected before Leahy went on.
He said in the past 15 Supreme Court confirmation hearings he’s been involved in, there’s never been such a video shown.
“The use of video at a confirmation is highly irregular, but I see no reason my colleagues can’t use a video that was provided by the nominee himself in response to the questionnaire,” Grassley said, but added videos should not be shown in a way that lacks relevant context.
Leahy further pressed Kavanaugh on his testimony, explaining that a now declassified inspector general report was completed on the program in September 2005 before the Times report that said John Yoo issued a memo in the White House that helped form the legal underpinning of the program.
He asked Kavanaugh if he’s ever worked with Yoo, a former official in the Justice Department’s Office of Legal Counsel, on the constitutional implications of a warrantless surveillance program.
“We’re talking about a lot of different things here, senator,” Kavanaugh responded, but added that his testimony in 2006 was “100 percent accurate.”
“I had not been read into that program,” he said. “I still remember my exact reaction when I read that story.”
— Lydia Wheeler
Kavanaugh demurs on Trump pardons
11:50 a.m.
Kavanaugh sidestepped two questions from Sen. Patrick Leahy (D-Vt.) about potential pardons from Trump.
Asked if Trump could pardon himself, Kavanaugh said he had never analyzed self-pardons.
“The question of self-pardons is something I have never analyzed. It’s a question I have not written about. It’s a question, therefore, that’s a hypothetical question that I can’t begin to answer in this context, as a sitting judge and as a nominee,” Kavanaugh told Leahy.
When Leahy followed up with a question about if Trump could pardon others in exchange for them agreeing not to testify against him, Kavanaugh similarly demurred.
“Senator, I’m not going to answer hypothetical questions of that sort,” Kavanaugh said.
Leahy wrapped up his questions by warning that he hoped “for the sake for the country that remains a hypothetical question.”
Talk of potential pardons for individuals in Trump’s orbit has loomed over special counsel Robert Mueller’s Russia investigation and trials that have spun out of the probe.
The New York Times reported last month that Trump and Rudy Giuliani, his personal lawyer, had discussed the potential fallout of a pardon for former campaign chairman Paul Manafort.
— Jordain Carney
Grassley, Leahy spar over ‘committee confidential’ documents
11:40 a.m.
A brief verbal scuffle broke out between Grassley and Sen. Patrick Leahy (D-Vt.) over “committee confidential” documents.
As Leahy questioned Kavanaugh on if he knew an email he received was electronically “stolen” from Democratic files by a then-GOP aide, Grassley interrupted to say documents from Kavanaugh’s work as a White House lawyer were publicly available.
“You made reference — you’re talking about the period of time he was White House counsel. That material is available to everybody,” Grassley said, interrupting Leahy’s questioning of Kavanaugh.
But Leahy implied that the committee has “committee confidential” documents — which prevent them from being released — tied to the 2002 hack.
“So that bit of material about him that’s marked committee confidential is now public and available?” Leahy asked. “If that’s what the chairman’s saying, I’ve got a whole new series of questions.”
He added that the documents should be public so senators could “ask him these questions under oath.”
But Grassley fired back that a bulk of the documents are public and if Leahy wanted to try to get the committee confidential designation lifted, he should have asked.
“There’s only one Democratic senator that asked for access to that,” Grassley said. “If you’re interested in it, you could have been asking since August the 25th, I believe.”
— Jordain Carney
Leahy grills Kavanaugh over stolen Democratic memos
11:35 a.m.
Sen. Patrick Leahy (D-Vt.) pressed Kavanaugh over his receipt of an internal Senate Democratic letter that was pilfered from a Judiciary Committee server that was shared by Republicans and Democrats in 2002.
Leahy told Kavanaugh he should have known that he received an internal Democratic document from former Senate aide Manuel Miranda, who was pressured to resign over the controversy in 2004.
Miranda worked with another former Senate GOP aide who secretly downloaded nearly 5,000 Democratic memos from 2001 to 2003, according to a 2004 report by Sergeant at Arms William Pickle.
Leahy asserted the lack of a signature and the typos in the letter were clear indications that it was an internal document.
Later, asked by Sen. Lindsey Graham (R-S.C.) whether Kavanaugh knew at the time that he had received anything stolen from Leahy’s files, the nominee replied firmly that he did not.
— Alexander Bolton
Kavanaugh says he knew nothing about sexual harassment allegations against former judge
11:05 a.m.
Kavanaugh said he knew nothing about the sexual harassment allegations former law clerks waged against 9th Circuit Court of Appeals Judge Alex Kozinski last year.
Sen. Orrin Hatch (R-Utah) said many of Kavanaugh’s opponents have suggested he knew about the allegations since he clerked for Kozinksi from 1991 to 1992.
Hatch asked Kavanaugh if he was on the email list Kozinski used to circulate inappropriate material.
“I don’t remember anything like that, senator,” Kavanaugh said.
Kavanaugh told Hatch he knew nothing of the allegations until they were made public last year.
“When they became public, the first thought I had is no woman should be subject to sexual harassment in the workplace ever,” he said.
Later he added, “It was gut punch. It was a gut punch for me. It was a gut punch for the judiciary.”
Kozinski resigned from his position on the court shortly after The Washington Post reported the allegations of several women who accused him of making sexual comments and touching them inappropriately.
— Lydia Wheeler
Democrats shift tone on day two
11 a.m.
Senate Democrats are shifting their tactics after they spent Tuesday interrupting their GOP colleagues, in what Sen. John Cornyn (R-Texas) likened to “mob rule.”
Though several protesters have interrupted Kavanaugh and senators during the second day of Kavanaugh’s hearing, no Democratic senator had interrupt Grassley or any other GOP senator.
Democrats, instead, have sat and listened as other senators questioned Kavanaugh on a range of topics including executive authority, the Second Amendment and abortion.
So far, only Sen. Dianne Feinstein (D-Calif.) has questioned Kavanaugh. Similar to Republicans, some Democratic senators have shuffled in and out of the committee room.
Feinstein got into a back-and-forth with Kavanaugh on several controversial issues, including gun control, an area where the Democratic senator has been outspoken.
But the two have been collegial during Feinstein’s time questioning Kavanaugh.
Feinstein began her questions by noting to Kavanaugh that “I’m sorry about the circumstances, but we’ll get through it.”
And as Kavanaugh dragged out an answer, Feinstein joked that he was learning how to “filibuster.”
“You’re very good,” Feinstein said. “You’re learning to filibuster.”
— Jordain Carney
Kavanaugh: I didn’t mislead committee in 2006 testimony
11 a.m.
Kavanaugh said he did not mislead the committee when he told them in 2006 that he was not involved in developing the George W. Bush administration’s post-9/11 detention policy.
“I told the truth, the whole truth in my prior testimony. I was not read into that program. … That’s the answer now. I was not read into that program,” Kavanaugh told GOP Sen. Orrin Hatch (Utah) when asked if he misled the committee about his role in developing the Bush administration’s detention policy.
Democrats on the Judiciary Committee have said they believe Kavanaugh misled the panel during his 2006 testimony.
During his circuit court confirmation hearing in 2006, Kavanaugh told senators that he did not know about a now infamous memo that defined the Bush Justice Department’s interpretation of torture until it was leaked in 2004. He also said he was not involved in the rules governing the detention of enemy combatants.
Republicans and the White House also seized on Kavanaugh not being mentioned in a several-thousand-page report released by the Senate Intelligence Committee, then overseen by Sen. Dianne Feinstein (D-Calif.).
“In response to questions about his 2006 testimony about his lack of involvement with interrogation programs, Judge Kavanaugh cited the Ranking Member Diane Feinstein’s 2014 report that went through over 6 million pages of documents, and never once mentioned him,” Raj Shah, a deputy press secretary for the White House, said in a note to reporters.
Shah added that Kavanaugh said “his 2006 testimony was entirely accurate. He was not read into these programs.”
Kavanaugh appeared to praise the Senate’s “torture report” on Wednesday, calling it “an important piece of work.”
“It’s important for us to know those facts for the future. I know it was an enormous effort,” Kavanaugh said.
He added that he had “looked through that report and looked through the Office of Professional Responsibly report. I was not read into that program.”
— Jordain Carney
Feinstein presses Kavanaugh on views of executive privilege
10:50 a.m.
Sen. Dianne Feinstein (D-Calif.) pushed Kavanaugh on whether he thinks a sitting president can be subject to a criminal investigation.
Kavanaugh went into a long-winded answer about how and why his views changed from 1999 to 2009, when he argued in a Minnesota Law Review article that criminal investigations should be postponed until a president is out of office.
Kavanaugh said it was the terrorist attacks of Sept. 11, 2001, that changed his views.
He was working in the White House at the time and said he saw how it impacted then-President George W. Bush. He said he wrote the article in 2009 to propose some ideas Congress could consider.
“They were not my constitutional views,” he said. “If a case came up where someone was trying to say this is a constitutional principle, I would have a completely open mind on that.”
Feinstein told Kavanaugh he was good and “learning to filibuster,” drawing laughs from the crowded hearing room.
She then pressed him on his views on U.S. v. Nixon, the 1974 Supreme Court ruling that forced former President Nixon to turn over tapes and documents in the Watergate investigation.
“You have said the Nixon case might have been wrongly decided. Was it?” Feinstein asked as a staffer held up a large poster of a comment Kavanaugh made on the case.
Kavanaugh said his remark was taken out of context. He said the ruling in the Nixon case was one of the four greatest moments in Supreme Court history.
Feinstein then asked him pointedly whether a sitting president has to respond to a court subpoena for information in a criminal investigation.
Kavanaugh said that’s a hypothetical question he can’t answer.
— Lydia Wheeler
Kavanaugh: My loyalty is to the Constitution
10:45 a.m.
Asked about his loyalty to Trump, Kavanaugh said his loyalty is to the Constitution.
“I’m an independent judge. For 12 years I’ve been deciding cases based on the law. … If confirmed to the Supreme Court, that’s how I’ll do it as well,” Kavanaugh told senators in response to a question from Sen. Orrin Hatch (R-Utah), a former chairman of the Judiciary Committee.
Kavanaugh added that he would make decisions “without fear or favor” and without “pressure from any corner.”
Pressed by Hatch how he would view loyalty to Trump versus loyalty to the American people, Kavanaugh added that the Constitution makes him an “independent judge.”
“Senator, if confirmed to the Supreme Court … I owe my loyalty to the Constitution. That’s what I owe loyalty,” Kavanaugh said. “The Constitution establishes me as an independent judge.”
— Jordain Carney
Kavanaugh: Roe has been ‘reaffirmed many times’
10:25 a.m.
Kavanaugh said he believed that Roe v. Wade has been “reaffirmed many times,” when questioned why he believed the 1973 abortion ruling was “settled law.”
“Senator, I said that it’s settled as a precedent of the Supreme Court entitled to respect. … It has been reaffirmed many times over the past 45 years as you know and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey,” Kavanaugh told senators in response to a question from Sen. Dianne Feinstein (D-Calif.).
Kavanaugh added that he understood the “importance the people attach” to the abortion case.
“I understand the importance the people attach to the Roe v. Wade decision,” Kavanaugh added. “I don’t live in a bubble. I live in the real world.”
When Feinstein followed up about Kavanaugh’s work in former George W. Bush’s White House, Kavanaugh demurred, saying he wasn’t sure what Feinstein was referring to, but added that Roe was an “important precedent.”
He added that the 1992 case Planned Parenthood v. Casey, which upheld Roe v. Wade, was “precedent on precedent.”
Kavanaugh’s views on abortion have been at the center of his Supreme Court fight.
GOP Sen. Susan Collins (Maine) told reporters last month after her meeting with Kavanaugh that he told her he believed the case was “settled law.”
Sen. Lisa Murkowski (R-Alaska) told reporters after her meeting with Kavanaugh that he confirmed his comments to Collins to her as well.
— Jordain Carney
Kavanaugh says he won’t be offering his opinion on past cases
10:15 a.m.
Kavanaugh warned committee members that he would not be answering the majority of questions about whether he thinks previous Supreme Court cases like Roe v. Wade were decided correctly.
Kavanaugh told the committee that he studied the answers other Supreme Court justices gave to these types of questions at their confirmation hearings in preparation for his own proceedings and he must follow “nominee precedent.”
He said judicial nominees can’t discuss cases or issues that might come before them. He quoted Justice Elena Kagan, who told the committee she could give “no thumbs up or thumbs down.”
“Nominee precedent is something I need to adhere to when I’m a nominee here now,” he said. “My job is not to advance my own interests. I have a job to judicial independence right here, right now as a nominee.”
Kavanaugh, however, said there are some exceptions for older cases.
On Tuesday, several committee Democrats said they would be asking Kavanaugh whether he thinks Roe v. Wade, the 1973 landmark ruling that gave women the right to an abortion, was rightly decided.
— Lydia Wheeler
Protesters shout over Kavanaugh
10:00 a.m.
Protesters repeatedly interrupted Kavanaugh as he fielded his first round of questions from Grassley, forcing him to pause in delivering his answers.
“You are gaslighting the American people,” said one protestor.
Another interrupted Kavanaugh, yelling: “Damn straight we are insolent.”
The line appeared to be a reference to comments from Hatch, who appeared visibly frustrated with protesters on Tuesday, chiding them for “insolence.”
Grassley said if the protesters were hoping to influence the “300 million people” listening to Kavanaugh “then that’s just too bad.”
“This is coming out of my time, but that’s OK,” Grassley said. “Let these people have their free speech and interrupt the other people listening.”
— Jordain Carney
Protester calls out Kavanaugh for not shaking the hand of Parkland father
9:50 a.m.
Kavanaugh was slammed by a protester for not shaking the hand of a man whose daughter was killed in the deadly school shooting at Marjory Stoneman Douglas High School in Parkland, Fla.
Kavanaugh had been telling the committee that he has tried to be civil and collegial during his 12 years on the D.C. Circuit Court of Appeals.
“Civility? You wouldn’t shake the hand of the man who lost his daughter,” a woman screamed from the back of the hearing room.
The father, Fred Guttenberg, said Kavanaugh refused to shake his hand when he introduced himself at the hearing on Tuesday. Guttenberg was at the hearings as a guest of Sen. Dianne Feinstein (D-Calif.), the ranking member of the committee.
— Lydia Wheeler
Kavanaugh touts ‘independence,’ says ‘no one is above the law’
9:45 a.m.
Kavanaugh said that “independence” and a respect for precedence are two things necessary to be a good judge.
“I think the first thing that makes a good judge is independence, not being swayed by political or public pressure. That takes some backbone,” Kavanaugh told senators. “Independence comes directly from Article III of the Constitution.”
Kavanaugh’s comment was in response to his first question on Wednesday, which came from Grassley, about what he believes makes a good judge and what has shaped him.
Democrats have questioned if Kavanaugh will be independent of Trump amid concerns that Kavanaugh, if confirmed, could help protect Trump from special counsel Robert Mueller’s investigation.
Pressed specifically about his willingness to break with Trump, Kavanaugh added that “no one is above the law.”
“No one is above the law in our constitutional system,” Kavanaugh told senators. “The executive branch is subject to the law.”
Kavanaugh also pointed to respect for precedent as part of what makes a good judge and said that “precedent comes right from article three of the constitution.”
Kavanaugh’s views on precedent have also come under the spotlight over concerns that, if confirmed, he could help curb or overturn Roe v Wade.
GOP Sen. Susan Collins (Maine), considered a potential swing vote, said she spent an hours-long with meeting with Kavanaugh to press him on whether or not he respects precedent.
— Jordain Carney
Protesters immediately interrupt second day of hearing
9:35 a.m.
Protesters immediately interrupted the second day of the hearing.
Grassley was in the middle of chastising Democrats and protesters for disrupting and trying to postpone the hearing on Tuesday when a man stood and yelled that protesters were speaking for themselves.
“The courts are broken. They are sadly broken. We need a judiciary that protects the rights of people with disabilities, women,” he yelled as he was escorted out of the room by Capitol Police.
Grassley, who tried to press on, stopped talking when several women more stood and yelled out in protest.
“Sham president. Sham justice,” one yelled.
“No more NRA justices. Stop the slaughtering of our children,” yelled another.
— Lydia Wheeler