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Supreme Court nominee declines to condemn Trump’s attacks on judiciary

September 6, 2018 at 10:23 PM

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On the final day that senators can question Supreme Court nominee Brett M. Kavanaugh, Democrats released previously withheld emails and questioned the judge on presidential powers, Roe v. Wade and Manny Miranda's email theft. (Jenny Starrs /The Washington Post)

Follow Friday’s updates on the Kavanaugh hearing here: John Dean to warn of a ‘pro-presidential powers’ Supreme Court

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.

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:

• Drama over confidential emails....that were already cleared for public release

• Kavanaugh advised against calling Roe “settled law”

• Kavanaugh elaborates on dissent on contraception and religious objections

• Emails show more involvement with nominee than Kavanaugh previously suggested

10:13 p.m.: Hearing adjourned

More than 12 hours after the questioning began Thursday morning, Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) adjourned the confirmation hearing for the day. Grassley closed the session by praising Kavanaugh for his “compelling and credible” answers, highlighted his history on the bench and said that “unquestionably, you’re qualified to serve on the Supreme Court of the United States.”

“I hope a lot of people in this country have formed very positive views of you, as I have,” Grassley said.

Kavanaugh spent nearly 24 hours over two days answering questions, with many of the discussions on Thursday centering in some way or another on President Trump, who nominated Kavanaugh to the high court. Members of the Senate Judiciary Committee, including some Republicans, pressed Kavanaugh about his expansive views of presidential power and past writings that concluded civil suits and criminal investigations of presidents would be better delayed until the chief executive left office. Read more about Thursday’s hearing here.

Friday is the fourth and final scheduled day of Kavanaugh’s confirmation hearing, which will feature comments from witnesses.

Mark Berman

8:55 p.m.: Behind the dramatic release of once-concealed documents

The dramatic release Thursday of once-concealed documents from Supreme Court nominee Brett M. Kavanaugh’s tenure in the George W. Bush White House spotlighted the simmering frustrations from Democrats over how Republicans have kept secret vast parts of Kavanaugh’s voluminous paper trail.

Tens of thousands of pages from Kavanaugh’s records have been hidden from public view, only available to senators and certain congressional aides in advance of Kavanaugh’s confirmation hearings this week.

On Thursday, a small sample of the “committee confidential” documents were disclosed after Democratic senators asked that they be approved for public release, raising questions about why the documents had been considered confidential in the first place.

Read more here.

7:30 p.m.: Pressed on gay rights, Kavanaugh declines to say same-sex marriage ruling was correctly decided

Sen. Kamala D. Harris (D-Calif.) pressed Kavanaugh for the first time Thursday night about gay rights. The judge refused to answer whether the high court’s ruling declaring a constitutional right for same-sex couples to marry was correctly decided.

Justice Anthony M. Kennedy, the man Kavanaugh would replace on the bench, cast the deciding vote in the case, Obergefell v. Hodges.

Kavanaugh instead read aloud from another Kennedy ruling this year involving gay rights in which the justice wrote that gay people “cannot be treated as social outcasts or as inferior in dignity and worth.”

Harris noted that Kavanaugh earlier this week characterized the landmark decision declaring segregated schools unconstitutional as a great moment in history, and asked whether the high court’s decision legalizing gay marriage was a similar moment.

The judge said only that it was precedent.

The White House sent out information on Kavanaugh’s record on gay rights soon after the exchange, noting that Kavanaugh has not had a major case involving gay rights in his 12 years on the D.C. Circuit.

“Kavanaugh rules fairly and impartially based on the law, not the identity of the parties before him, and he has a record of faithfully applying legal protections for racial minorities, women, and other protected groups,”the White House statement said.

— Ann E. Marimow

7:11 p.m.: Kavanaugh, pressed again, said he has not discussed the Mueller probe

Sen. Kamala D. Harris (D-Calif.), who late Wednesday asked Kavanaugh if 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, questioned him again Thursday.

Picking up a line of inquiry that her colleagues, including Sen. Richard Blumenthal (D-Conn.), had followed during the day, Harris peppered him with follow-up questions. Noting that he had denied having “inappropriate” conversations about it, Harris asking Kavanaugh if he had discussions regarding the special counsel’s probe and whether he had discussed it with anyone at Kasowitz’s firm, saying she had unspecified “reliable information” he had done the latter. (The firm denied this earlier in the day).

Kavanaugh asked Harris if she was asking whether he spoke to anyone specific about it, but she said that was not the question.

“That is not the subject of the question, sir,” she said. “The subject of the question is you and whether you were part of a conversation regarding special counsel Mueller’s investigation.”

Kavanaugh, nearly a day after their exchange late Wednesday, responded: “The answer’s no.”

Harris replied by thanking him and saying “it would have been great if you could’ve said that last night,” prompting Kavanaugh to begin a reply before cutting him off.

“Let’s move on,” Harris said.

The end of the exchange prompted a rare reaction from White House counsel Donald McGahn, who has largely kept his poker face during the hearings while seated behind Kavanaugh in clear view of the cameras. After Harris’s remark about moving on, McGahn gave a slight shake of his head and briefly arched his eyebrows.

— Mark Berman

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.

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Sen. Richard Blumenthal (D-Conn.) asked Supreme Court nominee Brett M. Kavanaugh Sept. 6 about President Trump's comments on others in the judiciary. (Reuters)

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.”

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Supreme Court nominee Brett. M. Kavanaugh emphasized ensuring contraceptive coverage "without doing so on the backs of religious objectors" at his confirmation hearing Sept. 6. (Reuters)

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.

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Democratic demands for confidential documents about Supreme Court nominee Brett M. Kavanaugh turned into a full-fledged revolt in the Senate Judiciary Committee on Sept. 6. (JM Rieger/The Washington Post)

“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.”

Read his email here. And head here for more on what else he has said on the issue.

— 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.

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Sen. Dianne Feinstein (D-Calif.), asked Supreme Court nominee Brett M. Kavanaugh to explain an email that she said has "been viewed as you saying you don’t think Roe is settled" on Sept. 6. (Reuters)

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.”

Read more here.

— Mark Berman

10:45 a.m.: On cameras in the court, Kavanaugh said he is open to hearing from other justices

Kavanaugh was asked about a common question regarding the court: Cameras or no cameras?

The Supreme Court itself operates in a relatively anachronistic format, blocking cameras — and most other forms of technology — when cases are argued and announced. The question of whether it should remain that way has been raised over the years, including to nominees who went on to join the court. During Justice Neil M. Gorsuch’s confirmation hearings last year, he said he was open to hearing more about the issue.

Kavanaugh also said he was open to learning more, including from the justices already on the court to hear “what they think about this.”

“To learn, if I were to be confirmed, from the experience there and to see what the experience there is like,” he said. “To listen to the justices currently on the Supreme Court.”

— Mark Berman

10:38 a.m.: Questioning begins and is promptly interrupted by protesters

An hour after the hearing got underway, Sen. Charles E. Grassley (R-Iowa), the committee chairman, began his questioning of Kavanaugh, who had not spoken while senators debated what to do with confidential documents.

A protester shouting about health care and chanting “SHAME” was taken outside by police as Grassley began. Then, as Kavanaugh began to speak, a male protester quickly interrupted, standing on a chair and shouting, “Save Democracy, save Roe!” as he was hauled out of the committee room by the Capitol Police.

10:30 a.m.: Senate Democrats in open revolt over confidential Kavanaugh documents

After Sen. Cory Booker (D-N.J.) said he was willing to violate Senate rules and release confidential documents, Senate Democrats on the committee appeared in open revolt as Sen. John Cornyn (R-Tex.) read aloud from the rules on expulsion. Raj Shah, a White House spokesman, also tweeted the rules on Thursday morning.

Cornyn read aloud from rules stating that a senator who discloses “the secret or confidential business” of the Senate could be “liable ... to suffer expulsion.”

Booker responded by saying: “Bring the charges.” His comment was echoed by Sen. Richard Blumenthal (D-Conn.), who said: “Apply the rule, bring the charges. All of us are ready to face that rule.”

“This is about the closest I’ll ever have in my life to an ‘I am Spartacus’ moment,” Booker said.

Sen. Richard J. Durbin (D-Ill.) also joined in, saying: “If there’s going to be some retribution against the senator from New Jersey, count me in.”

Their comments were echoed by Minority Leader Charles E. Schumer (D-N.Y.), who tweeted during the debate: “I stand w/ Judiciary Committee Democrats who are well within their rights to release these very important documents that a former Kavanaugh deputy designed as ‘committee confidential.’ The American ppl deserve to know the truth about Judge Kavanaugh’s record. #WhatAreTheyHiding?”

— Ann E. Marimow

10 a.m.: Booker says he is willing to violate Senate rules to release confidential documents

The fight over access to Kavanaugh’s records from his time in the Bush White House intensified in the opening moments of the hearing Thursday morning. Sen. Cory Booker (D-N.J.) said he is prepared to violate Senate rules and release confidential committee documents — and to risk the consequences.

Booker had questioned Kavanaugh Wednesday night about his use of the term “naked racial set-aside” and said he would make public documents backing up that assertion.

Watch more!
On the third day of Supreme Court nominee Brett M. Kavanaugh's confirmation hearing Sept. 6, Sen. Cory Booker (D-N.J.) said he would break Senate rules and release confidential committee documents. (Reuters)

“I openly invite and accept the consequences of releasing that email right now,” Booker said. “The emails being withheld from the public have nothing to do with national security.”

Under the committee’s rules, Booker could be expelled from the Senate for releasing such records.

Senate Majority Whip John Cornyn (R-Tex.) angrily responded to Booker and referred to his potential aspirations for higher office, saying “running for president is no excuse for violating the rules of the Senate.” Cornyn argued that “this is no different from the senator deciding to release classified information that is deemed classified.”

9:34 a.m.: Hearing gets underway

Nearly 12 hours after the first day of questioning wrapped up, Kavanaugh is back before the Senate Judiciary Committee for more questioning. Kavanaugh took his seat at 9:33 a.m., sitting alone at the witness table with a stack of papers to his left and three small water bottles to his right.

Before the hearing began, the committee’s Republican members were seen gathered around committee Chairman Charles E. Grassley (R-Iowa) while he spoke before they took their seats.

Grassley gaveled in the hearing at 9:34 a.m.

— Mark Berman

8 a.m.: What to watch for in today’s hearing

The third day of hearings will see Kavanaugh facing more questioning from senators. Among other things to expect and watch for:

• The battle over access to records from Kavanaugh’s tenure in the Bush White House is sure to resurface, with Democrats asking the committee to release additional documents that have not been disclosed to the public.

Sen. Patrick J. Leahy (D-Vt.) implied Wednesday that there is evidence in confidential Senate Judiciary Committee records that Kavanaugh in 2003 was privy to an email allegedly stolen by a former committee staffer. Kavanaugh said he never knowingly dealt with stolen records. Chairman Charles E. Grassley (R-Iowa) did not guarantee that those documents would become public this week, but said, “we’ll try to get them.”

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Members of the Senate Judiciary Committee questioned Supreme Court nominee Brett M. Kavanaugh on the second day of his confirmation hearing Sept. 5. (Sarah Parnass /The Washington Post)

• More questions are likely about Kavanaugh’s views on a host of pivotal issues, including guns, abortion, executive power, health care, affirmative action and more, as well as about his experiences on the bench and in the Bush White House.

• Health care and the constitutionality of the Affordable Care Act will continue to be a potent issue, particularly as a legal challenge to the law unfolds in a courtroom in Texas this week. The nominee says he can’t assure senators that he would uphold the law’s requirement that insurers cover people with preexisting conditions because doing so would compromise his judicial independence. Democrats say they will revisit the issue.

• Loud, angry protests are likely to continue to punctuate the Senate debate about Kavanaugh’s legal theory and judicial opinions. A phalanx of Capitol Police officers, dressed in dark blue and some with zip ties, have been a fixture against the back wall of the hearing room, poised to quietly haul out protesters. Capitol Police on Wednesday arrested and charged another 66 people with disorderly conduct for disrupting the hearings.

• In one of the most confusing — and tense — exchanges Wednesday, Sen. Kamala D. Harris (D-Calif.) raised the prospect without offering evidence that Kavanaugh may have spoken about the Mueller investigation with somebody at Kasowitz, Benson and Torres, a law firm that has represented Trump. It’s unclear whether Harris will revisit the issue again Thursday, but the exchange went viral and quickly became one of the most talked-about moments of the Kavanaugh hearings.

Supreme Court nominee Judge Brett Kavanaugh appears during a confirmation hearing at the Hart Senate Office Building on Wednesday in Washington. (Matt McClain/The Washington Post)

Read more coverage:

Read Day One and Day Two of the Kavanaugh hearing

The Fix: 5 takeaways from the Brett Kavanaugh hearings so far

The Daily 202: Kavanaugh hearing offers an ‘unprecedented’ display of the Senate’s institutional decline

Related: Read more at PowerPost


Seung Min Kim is a White House reporter for The Washington Post, covering the Trump administration through the lens of Capitol Hill. Before joining The Washington Post in 2018, she spent more than eight years at Politico, primarily covering the Senate and immigration policy.

Ann Marimow covers legal affairs for The Washington Post. She joined The Post in 2005 and has covered state government and politics in California, New Hampshire and Maryland.

Mark Berman covers national news for The Washington Post. He has been at The Post since 2007 and previously covered transportation and local news.

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