Judge Brett M. Kavanaugh’s Supreme Court confirmation hearings continued for a contentious and sometimes chaotic third day Thursday, with President Trump the focus of questioning as much as his nominee.
Democratic senators said it was crucial to have an independent Supreme Court in what Sen. Richard J. Durbin (D-Ill.) called “the age of Trump.”
“We’re in a moment . . . where the president has shown contempt for the federal judiciary unlike any president we can recall,” Durbin said. “He has shown disrespect for the rule of law over and over again. He has repeatedly ridiculed the attorney general of the United States, whom he chose. . . . And that’s why your nomination is different than any.”
Democrats also said a newly surfaced email from Kavanaugh — written when he was an associate counsel at the George W. Bush White House — raised questions about his previous statements that the Supreme Court’s landmark abortion decision, Roe v. Wade, was “settled law.”
Kavanaugh, who spent about 24 hours over two days calmly answering questions, carefully picked his way through a minefield of queries but refused to engage with any criticism of the president who chose him. He declined to comment on Trump’s criticism of Justice Ruth Bader Ginsburg or what Sen. Richard Blumenthal (D-Conn.) called Trump’s attacks on an independent judiciary.
“I’m not going to get within three Zip codes” of such a political controversy, Kavanaugh said of questions about Ginsburg, who started the feud with Trump by questioning his fitness for the Oval Office when he was a candidate.
But in testimony throughout the day, Kavanaugh emphasized the importance of the separation of powers and an independent judiciary as a backstop. He was more specific than in the previous confirmation sessions about the legal limits on a president’s authority.
“I’ve made clear in my writings that a court order that requires a president to do something or prohibits a president from doing something is the final word in our system,” Kavanaugh said.
Committee Republicans and Democrats began the day sparring again about documents regarding Kavanaugh’s past service in the Bush White House that have not been released publicly. The hearing then toggled between Democrats pressing Kavanaugh on Trump, abortion and respecting the court’s precedents, and Republicans giving him all the time he needed to defend himself.
Sen. Lindsey O. Graham (R-S.C.) told Kavanaugh to relax and ignore what he called “the circus.”
“Every time we have one of these hearings it gets worse and worse and worse,” Graham said, adding, “Your time is about over. You’re going to make it.”
Kavanaugh seemed briefly rattled by the deluge of questions about Trump, but for the most part he retained an unflappable demeanor. Late in the day, he was joined by the oft-mentioned girls basketball team he coaches.
“They are getting an introduction to democracy,” Kavanaugh said. “It’s noisy!”
Kavanaugh needs only to attain the support of Republican senators, who hold a majority, to be confirmed. Senate Majority Leader Mitch McConnell (R-Ky.) wants the vote to take place before the Supreme Court’s new term begins Oct. 1.
One new issue surfaced Thursday when Kavanaugh was quizzed by Democrats for the first time about gay rights. The judge declined to share his views on same-sex marriage and refused to say whether the high court’s 2015 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 that case, Obergefell v. Hodges.
In response to a question from Sen. Kamala Harris (D-Calif.) about how he viewed the case, Kavanaugh instead read aloud from another Kennedy ruling involving gay rights in which the justice wrote that gay people “cannot be treated as social outcasts or as inferior in dignity and worth.”
But it was Kavanaugh’s views on the presidency that dominated much of the second day of questioning.
Sen. Jeff Flake (R-Ariz), a frequent critic of Trump, said he was concerned about a president “climbing over the lectern” and seizing too much power.
Flake pointed to the judge’s view that the president should not be distracted while in office by criminal investigations.
Kavanaugh said the position he laid out in a 2009 law review article was “simply a proposal for Congress to consider” and not a suggestion for immunity for any president.
“The principle I emphasized there was no one is above the law,” Kavanaugh said. “The president is subject to many legal constraints.” He added the Justice Department has long held that a sitting president cannot be indicted.
The nominee resisted efforts to make the discussion about Trump or some of the president’s controversial statements. On Wednesday, he demurred when asked whether he believed, as Trump said, that there were good people on both sides during the confrontation in Charlottesville at a white supremacist rally.
He took a similar position when asked Thursday about comments Trump has made about the ethnicity of a judge who had ruled against him and attacking recent indictments of GOP congressmen. Justice Neil M. Gorsuch, by contrast, had drawn Trump’s ire when Gorsuch told senators during his confirmation process that attacks on the judiciary were “disheartening.”
“What kind of loyalty is being required of you for this job?” Sen. Cory Booker (D-N.J.) asked Kavanaugh.
Sen. Mazie Hirono (D-Hawaii) suggested Kavanaugh was avoiding any criticism of Trump.
As a judge, Kavanaugh said, “We stay out of politics, we don’t comment on comments made by politicians.”
Democrats also renewed a line of questioning they began Wednesday: whether Kavanaugh had discussed special counsel Robert S. Mueller III’s investigation with anyone at the law firm founded by one of Trump’s personal attorneys, Marc Kasowitz.
Kavanaugh said he did not recall any such discussions. He acknowledged that he knows Ed McNally, a former Bush White House colleague who is now at the firm. Kavanaugh said he had not discussed the special counsel’s probe with McNally. The firm later echoed that in a statement, saying McNally did not help prepare Kavanaugh for his hearings or discuss the Mueller probe with him.
The day kicked off with dramatic protests by Democrats about the committee’s handling of documents related to Kavanaugh’s tenure in the Bush White House.
At the beginning of his confirmation hearings this week, nearly 200,000 pages of Kavanaugh’s records had remained classified as “committee confidential,” meaning senators and certain aides could review them but not release them to the public.
Democrats have furiously contested that classification, arguing that the records contained noteworthy information that should be relayed to the public. The furor boiled over Thursday.
“I want to make it absolutely clear that I do not accept the process of this ‘committee confidential’ routine that we went through,” Sen. Sheldon Whitehouse (D-R.I.) said. “I do not accept its legitimacy. I do not accept its validity.”
At one point, Booker and Hirono announced they were releasing documents the committee had marked as confidential. In fact, the material had already been cleared for public release earlier Thursday morning, according to Democratic and Republican aides on the Senate Judiciary Committee.
Among the previously confidential documents released Thursday was the memo relating to Roe and whether it should be described as “settled law.”
“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 in a 2003 email after reviewing a draft of what was intended to be an op-ed in favor of a judicial nominee.
The opinion piece was designed to undercut Democratic allegations that the nominee would overturn Roe. Kavanaugh objected to a line that said “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”
At Thursday’s hearing, Sen. Dianne Feinstein (D-Calif.) read aloud from the email and said it has “been viewed as you saying you don’t think Roe is settled,” and asked Kavanaugh to explain.
“I think my comment in the email was that might be overstating the position of legal scholars and so it wasn’t a technically accurate description in the letter of what legal scholars thought,” he said. He added: “To your point, your broader point, Roe v. Wade is an important precedent of the Supreme Court.”
Michael Kranish and Carol D. Leonnig contributed to this report.