The hearings for President Trump’s Supreme Court nominee are partisan, dramatic and so fitting for this political moment. A lot is on the line for both sides. Republicans want to put Brett Kavanaugh on the Supreme Court before the November midterm elections. Democrats don’t want the court to cement its 5-4 conservative majority, especially when this Supreme Court could play a big role in the Russian election interference investigation.
Here are five takeaways from the second day of the hearings:
1. Trump is making Kavanaugh’s life significantly harder.
Kavanaugh was already coming into this hearing with a difficult task: convince Congress that he isn’t a lackey Supreme Court pick for a president who has repeatedly flouted the rule of law.
The day before the hearings began, Trump gave Kavanaugh’s critics fresh ammunition. The president tweeted that the Justice Department shouldn’t have prosecuted Republican members of Congress so close to the midterm elections.
Kavanaugh set out right away to buffer himself by asserting he believes a good judge is independent of political pressure: “No president is above the law,” he said repeatedly. But when Sen. Jeff Flake (R-Ariz.) read those tweets out loud and tried to pin down Kavanaugh on how he felt about this, Kavanaugh ducked, saying he shouldn’t comment on current events lest people think judges are “politicians in robes.”
Actually, Kavanaugh declined to talk about pretty much any of Trump’s legal controversies.
Other senators brought up the fact Kavanaugh was picked by a president who, just week ago, was accused by his personal lawyer of committing a crime. “It is unprecedented for a Supreme Court nominee to be named by a president who is an unindicted co-conspirator [in a crime],” said Sen. Richard Blumenthal (D-Conn.). He asked Kavanaugh if he would recuse himself from cases involving Trump’s criminal liability. Kavanaugh said he wouldn’t make a decision on that now because it’s an ongoing case.
“I’m going to take that as a no,” Blumenthal said.
2. Kavanaugh backed away from his written views that a president shouldn’t face criminal investigation.
Kavanaugh is a conservative judge — some scholars have argued he is one of the most conservative federal judges. But his writings that have most alarmed Democrats and some Republicans came in a 2009 Minnesota Law Review article, in which he argued that criminal investigations and lawsuits against the president are “time-consuming and distracting” and ultimately don’t serve the public good.
Coming from a lawyer who was a key player investigating Bill Clinton, the about-face was perplexing. And it’s a concerning position to some senators who know this Supreme Court could decide whether Trump has to sit down with special counsel Robert S. Mueller III for an interview.
On Wednesday, Kavanaugh backed away from that expansive view of executive power by arguing he was just spitballing about how to protect a president from unnecessary and distracting lawsuits. His writings that investigations are a distraction were just ideas, he said, not his actual constitutional philosophy. He had just come from the Bush White House, where he watched a president wage war while trying to protect America from future 9/11-style terrorist attacks.
“After Sept. 11, I thought very deeply about the presidency, and I thought very deeply about the independent counsel experience, and I thought about how those things interacted,” he said. “So I proposed some ideas for Congress to consider. They were not my constitutional views.”
That wasn’t enough to assuage concerns by Kavanaugh’s Democratic critics. “I do think there is good reason for members of this committee to be concerned about a whole range of things you’ve said or written about whether or not a president can be held accountable,” Sen. Christopher A. Coons (D-Del.) said after 30 minutes of questioning Kavanaugh on this.
But it seemed enough for Republicans. Sen. Ben Sasse (R-Neb.), a frequent Trump critic, said: “I’m headed toward voting for you because I don’t believe any of those things are true.”
3. On every other hot-button issue, Kavanaugh adopted the say-nothing style that Justice Gorsuch perfected.
In his confirmation hearing last year, Justice Neil M. Gorsuch wouldn’t even share his opinion on the Second Amendment.
Kavanaugh took much the same approach. He wouldn’t say whether a sitting president could be subpoenaed (something that Mueller threatened to do to Trump and a matter that could end up at the Supreme Court). He would only give his opinion on court cases that had been decided decades ago, and even then just some. He said that the 1970s case legalizing abortion, Roe v. Wade, is “settled law” but left himself wiggle room to uphold increasingly restrictive abortion laws in the states — and maybe even to rule against legalized abortion. Here’s one telling exchange:
Blumenthal: “Can you commit sitting here today that you would never overturn Roe v. Wade?”
Kavanaugh deferred: “Each of eight justices on the Supreme Court now declined to answer that question.” He also would not say whether Roe v. Wade was decided correctly.
4. Kavanaugh’s background in politics is both a help and a hindrance.
Kavanaugh is a clear, direct speaker who can tailor his words to whether he’s talking to a critic or a supporter. He would mention he grew up in the Washington, D.C., area in the ’70s and ’80s — then known as “the murder capital of the world” — before explaining why he ruled assault weapons are constitutional.
He also demonstrated he is fully aware of the political pressure cooker his confirmation hearing is taking place in.
“I want to reassure everyone that I base my decisions on the law, but I do so on the awareness of the facts and awareness of the real-world consequences,” he said when asked what he would say to the father of a Parkland, Fla., shooting victim in the audience. “And I have not lived in a bubble.”
But Kavanaugh’s political background comes from being a top aide and lawyer in the George W. Bush White House. And that means he’s been asked to answer for some of that White House’s most controversial decisions — torture, detention, the Iraq War, Bush staffers who resigned over hacking of Senate Democrats’ emails.
Kavanaugh says he didn’t have any knowing involvement in the email scandal. And he says he did not help set up or give legal advice for the Bush-era enhanced interrogation techniques that Congress later banned, a point of contention for Democrats who think he did play a role.
We may never fully know the extent of Kavanaugh’s advisory role during the post-9/11 era, given that Republicans haven’t requested records from his time as Bush’s staff secretary, a gatekeeper position that allowed him to determine which proposals made their way to the president.
5. This hearing is a manifestation of the Trump era.
Democrats tried to stop the hearing before it got started, arguing it was “tainted.” Republicans accused Democrats of contempt of court and protesters of “mob rule.” An unusually high number of protesters — 70 or so arrested on the first day — led Capitol Police to briefly stop admitting the public into these hearings, a rare thing to do.
Much of this drama can be traced directly back to who’s in the White House. Democrats have accused Republicans and Trump of “hiding” Kavanaugh’s past to get a friendly face for Trump on the Supreme Court. Some Republicans argued that democracy is broken because Democrats want to reflexively oppose Trump. “What is wrong with our country?” said Sen. Lindsey O. Graham (R-S.C.) at one point Wednesday.
Kavanaugh’s nomination will probably scrape by on a purely party-line vote, both in committee and possibly the full Senate, bearing out that this hearing is everything that has come to define politics in the Trump era.