Follow Day 3 of the Kavanaugh hearings here: Trump’s Supreme Court nominee faces second day of questioning

Judge Brett M. Kavanaugh is appearing before the Senate Judiciary Committee on Wednesday, as senators receive their first chance to publicly interview 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 would not say whether Trump is correct in claiming an ‘absolute right’ to self-pardon or whether presidents have to respond to subpoenas.

Kavanaugh also declined to say whether Roe v. Wade was correctly decided or whether he would uphold a law requiring coverage for preexisting conditions and defended his dissent in a 2011 ruling that upheld Washington, D.C.’s ban on semiautomatic rifles.

Highlights from the hearing:

Tense exchange over whether Kavanaugh has discussed Mueller probe

Kavanaugh dodges questions on race-based admissions

Evening recap: What we’ve learned since this morning

Kavanaugh says he was not aware of domestic abuse allegations against ex-Trump aide

Kavanaugh pushed to respond to Trump tweet on Sessions

Kavanaugh will not commit to sitting out cases involving potential liability for Trump


10:08 p.m.: Hearing adjourns, questioning to resume Thursday

Sen. Thom Tillis (R-N.C.) gaveled out the hearing more than 12 hours after questioning began. The committee will reconvene at 9:30 a.m. on Thursday, with each member receiving 20 minutes to speak with Kavanaugh.


9:27 p.m.: Tense exchange over whether Kavanaugh has discussed Mueller probe

In a tense exchange, Sen. Kamala Harris (D-Calif.) pushed Kavanaugh repeatedly on whether he has discussed special counsel Robert S. Mueller III’s investigation with anyone at Kasowitz, Benson and Torres, a law firm with close ties to Trump.

But if Harris was implying that Kavanaugh has had such a conversation, the senator did not provide any evidence of it during her 30 minutes of questioning. A Democratic aide said following the exchange that Harris has “reason to believe” a conversation occurred between Kavanaugh and an attorney at the firm, but did not provide specifics, saying they were continuing to pursue it.

Kavanaugh said he’s “sure I’ve talked to fellow judges” about the Mueller investigation, considering the newsworthiness of the probe into Russian interference in the 2016 election and possible coordination with Trump associates. The nominee, stressing that he wanted to be careful in describing conversations, asked Harris if she had a specific person in mind and said he couldn’t answer the question without knowing who works at the firm.

Republicans argued that the question was unfair given the considerable number of lawyers and law firms in Washington, D.C.

Marc Kasowitz is a longtime Trump attorney who, until this summer, led the president’s legal response to the Russia probe. He continues to represent Trump on some matters.


8:38 p.m.: Kavanaugh dodges questions on race-based admissions

Kavanaugh dodged several attempts by Sen. Cory Booker (D-N.J.) to probe his views on race-based admission policies for universities in a contentious round of questioning.

Booker, who is under scrutiny as a potential presidential contender in 2020, pressed Kavanaugh on whether he believes having a diverse student body is a “compelling government interest.” Kavanaugh responded that “the Supreme Court has said so” but Booker cut him off, insisting that the nominee hadn’t answered his question.

Booker later questioned Kavanaugh on whether he had ever used the term “naked racial set asides,” prompting Kavanaugh to ask for an email documenting the alleged use before he answers. Booker said he would, but moved on with his questions.

Sen. Thom Tillis (R-N.C.) asked the committee to suspend the hearing to make the records available to Kavanaugh, but that request was turned down. And Sen. Mike Lee (R-Utah) noted that emails to which Booker referred — which included one message with the subject line “Racial profiling” – had been designated as committee confidential, meaning it cannot be disclosed publicly.

Booker responded by calling the system “rigged.”

“I’m saying it’s unfair, it’s unnecessary, it’s unjust and it’s unprecedented on this committee,” he said.


8:33 p.m.: McConnell predicts Kavanaugh will be confirmed by the end of September

Earlier in the evening, Senate Majority Leader Mitch McConnell (R-Ky.) dismissed Democratic objections to Kavanaugh’s nomination and predicted the judge would be seated on the Supreme Court before its session begins in October.

“You’ve seen the addicts in the committee . . . All the hooting and hollering and misbehavior but none of that is going to make any difference,” McConnell said in an interview with Fox News. “The president has nominated an all-star.”

“He’s going to be confirmed before the end of September and be on the court when it starts its next session the first Monday in October,” McConnell said.

Republicans hold a slim Senate majority, guaranteeing Kavanaugh’s confirmation if party members are united. In the afternoon, Sen. Lindsey O. Graham (R-S.C.) estimated Kavanaugh would receive between 53 and 57 favorable votes and said 11 senators are undecided.


8:12 p.m.: Evening recap: What we’ve learned since this morning

Kavanaugh presented himself to the Senate and the American public Wednesday as an independent judge with an open mind, refusing to be pinned down on legal questions involving investigations of President Trump and how his presence on the court might shift its ideology to the right.

The judge proved to be an amiable and collected witness during a marathon day of questioning and dozens of interruptions from screaming protesters. He displayed an extensive knowledge of constitutional law and at times, used his gift of gab to avoid direct and pointed questions.

Kavanaugh would not take a position on whether a president can be forced to respond to a subpoena. He declined to say whether the chief executive can pardon himself. He sidestepped a question about whether he still believes, as he wrote decades ago, “that a president can fire at will a prosecutor criminally investigating him.”

All are issues crucial to Mueller’s investigation of Russian interference in the 2016 election and possible coordination with associates of Trump, the man who chose Kavanaugh to replace Anthony M. Kennedy, the court’s pivotal justice.

Kavanaugh turned aside questions on abortion, gun rights and how Congress might get around some of the Supreme Court’s rulings on campaign finance restrictions. That said, he searched for ways to try to convince Democratic senators that they should not fear his confirmation.

“I understand the — the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” Kavanaugh told Feinstein, referring to the Supreme Court’s precedents guaranteeing a woman’s right to abortion.

Read more here.

Further reading:

5 takeaways from day two of the Brett Kavanaugh hearings


8:10 p.m.: Hearing resumes with questioning from Booker

The hearing is nearing its 10th hour as Sen. Cory Booker (D-N.J.) begins his 30-minute period of questions. Three remaining senators are prepared to speak after him.


7:43 p.m.: Hearing recesses for dinner break

Senators will resume their questions in 25 minutes. Sen. Cory Booker (D-N.J.) will have the next chance to speak.


6:41 p.m.: Kavanaugh says he was not aware of domestic abuse allegations against ex-Trump aide

Kavanaugh said he was not aware of allegations of domestic abuse against Rob Porter, Trump’s staff secretary who was forced to resign in February, until the claims by his ex-wives were reported by the media. Kavanaugh recommended Porter for his White House job, according to Bob Woodward’s explosive new book on the Trump administration; the judge challenged that reporting on Wednesday.

His answers about the Porter allegations, which Porter has denied, came amid a series of questions about sexual harassment and misconduct from Sen. Mazie Hirono (D-Hawaii).

Kavanaugh repeated that he never witnessed sexual harassment by his ex-boss, former Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, to whom he has remained close, nor heard any allegations of misconduct against Kozinski. Earlier in the hearing, Kavanaugh called the claims, which led to the former judge’s resignation, a “gut punch.”

Hirono asked if Kavanaugh was on the email list Kozinski used to circulate sexually explicit material. He said he did not remember “anything like that,” echoing a similar denial from earlier in the hearing. Then, asked if he believes Kozinski’s accusers, Kavanaugh said: “I have no reason not to believe them.”

Supporters have praised Kavanaugh’s record on hiring and mentoring women. After Hirono’s questions, Republicans noted that she initially dismissed calls for ex-Sen. Al Franken’s (D-Minn.) resignation as a “distraction.” Franken was accused of groping and other misconduct by eight women last year, forcing his departure from the Senate. He challenged some accusations and said he remembered others differently.

On Wednesday, Kavanaugh also denied engaging in sexual harassment as an adult and denied facing discipline for or entering into a settlement over any harassment claims.

Hirono was the 16th senator to question Kavanaugh on Wednesday, out of 21 total members of the Judiciary Committee.


6:24 p.m.: Kavanaugh pushed to respond to Trump tweet on Sessions

Sen. Jeff Flake (R-Ariz.) pressed Kavanaugh Wednesday evening to comment on a controversial Trump tweet earlier this week, in which the president chastised Attorney General Jeff Sessions for prosecuting two House Republicans because it would jeopardize the party’s prospects in the November midterms.

That appeared to be the first time in the hearing that Kavanaugh was pressed directly to respond to a tweet from the man who nominated him. But Kavanaugh declined to weigh in when Flake asked whether a president could direct executive agencies to act for political reasons, saying he was concerned it would compromise his integrity as a judge by commenting on the news of the day.


WASHINGTON, DC — SEPTEMBER 05: Supreme Court nominee, Brett Kavanaugh returns after a short break during a confirmation hearing at the Hart Senate Office Building on Wednesday September 05, 2018 in Washington, DC. (Photo by Matt McClain/The Washington Post)

“I don’t think we want judges commenting on the latest political controversy because that would ultimately leave people to doubt whether we are independent,” Kavanaugh said.

Earlier this week, Trump tweeted: “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff......”


5:47 p.m.: Committee announces release of thousands more documents

As Kavanaugh’s hearing approached its eighth hour, the Senate Judiciary Committee announced the release of 3,732 additional pages of documents from Kavanaugh’s White House career. The committee estimated the total number of documents released on Kavanaugh now exceeds 294,000 pages.

Debates over access to documents have become a mainstay of Kavanaugh’s confirmation process. Nearly 200,000 pages of records from his time in the George W. Bush White House have been marked “committee confidential,” meaning that senators and Judiciary Committee staff can access them but the general public cannot. A separate batch of 100,000 pages are being withheld from the committee altogether because the Trump administration believes they would be covered by presidential privilege.

The documents released late afternoon Wednesday contained emails sent and received by Kavanaugh at his White House email address between Jan. 30, 2001, and April 4, 2003, as well as related documents.


5:46 p.m.: Despite article, Kavanaugh says he never took a position on constitutionality of indicting president

Kavanaugh testified Wednesday afternoon that he had “never taken a position” on whether it is constitutional for a sitting president to be indicted — although a 2009 article he wrote for the Minnesota Law Review might indicate otherwise.

In the piece, Kavanaugh writes in a footnote that “even in the absence of congressional conferred immunity, a serious constitutional question exists regarding whether a president can be criminally indicted and tried while in office.”

“The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas,” Kavanaugh wrote in the piece. “Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”

But under questioning from Sen. Christopher A. Coons (D-Del.), Kavanaugh said, “I’ve never taken a position on the constitutionality of indicting or investigating a sitting president.”

The questions from Coons, who has written legislation that would protect special counsels should they be fired, centered on Kavanaugh’s views of executive power. Coons asked Kavanaugh whether he still believes his own remarks in 1998 that a president can fire a prosecutor investigating him “at will.”

“I think all I can say, senator, is that was my view in 1998,” Kavanaugh said.

Coons ended his questioning by saying Kavanaugh’s responses “really leave me concerned” because of “our current context” with Trump and the Mueller investigation.


5:35 p.m.: Kavanaugh will not commit to sitting out cases involving potential liability for Trump

Sen. Richard Blumenthal (D-Conn.) tried to elicit a commitment from Kavanaugh to recuse himself from any Supreme Court cases involving President Trump’s potential criminal or civil liability. Blumenthal suggested it would be a conflict of interest for Kavanaugh to rule in a case directly affecting the man who nominated him to the high court.

“We’re in uncharted territory,” Blumenthal said of the president’s legal troubles.

Special counsel Robert S. Mueller III is in a standoff with Trump’s lawyers over his request to interview the president for his investigation into Russia’s interference in the 2016 campaign. That fight could end up before the Supreme Court.

Kavanaugh refused to make any commitment, saying it would undermine his independence to prejudge how he would handle a particular case.

“I need to be careful,” Kavanaugh said.

Blumenthal said he was “troubled and disturbed” by Kavanaugh’s “refusal to say you will take yourself out of that case.”

The exchange took place after the hearing recessed for another short break.


3:50 p.m.: Cruz highlights what he calls high rate of agreement between Kavanaugh, Garland

Opposition to Kavanaugh’s nomination has been exacerbated by lingering resentment about the treatment of President Barack Obama’s Supreme Court nominee, Merrick Garland, who was denied a Senate hearing in 2016.

In his questioning, Sen. Ted Cruz (R-Tex.) sought to highlight the high rate of agreement on the bench between Kavanaugh and Garland, who both serve on the U.S. Court of Appeals for the District of Columbia Circuit. Garland is the court’s chief judge.

According to Cruz, Garland joined 96 percent of the majority opinions written by Kavanaugh on that court, dissenting in just one case. And Kavanaugh joined 93 percent of the majority opinions Garland wrote, dissenting twice, according to the senator’s statistics.

“We’re trying hard to find common ground and as I’ve said before he’s a great judge, very careful, very hard-working,” Kavanaugh said.

A deeper analysis of the judge’s opinions by legal scholar Adam Feldman shows Kavanaugh well to the right of the average D.C. Circuit judge, but not as far to the right as some of his colleagues. The analysis put Garland in the middle.

Cruz’s statistics also do not include several high-profile cases in which the court sat as a full panel of judges. In cases involving a pregnant immigrant teen seeking an abortion, a contraception-coverage mandate and a warrantless police search of a Washington, D.C., house party, for instance, Garland and Kavanaugh were on opposite sides.


3:14 p.m.: Hearing resumes with questioning from Klobuchar

The hearing is approaching its sixth hour as Sen. Amy Klobuchar (D-Minn.) begins her 30-minute period of questions.


3 p.m.: Hearing recesses for short break

Senators will resume their questions in 10 minutes. Sen. Amy Klobuchar (D-Minn.) will have the next chance to speak.


2:25 p.m.: Trump calls Kavanaugh’s hearing performance ‘totally brilliant’

President Trump told reporters at the White House that he’s pleased with how Kavanaugh’s confirmation hearings have unfolded so far.

“I saw some incredible answers to very complex questions,” Trump said. “He’s an outstanding intellect. He’s an outstanding judge. He was born for the position.”

The president said he has heard for a decade that Kavanaugh belongs on the Supreme Court.

“I have watched his remarks, I have watched his performance, I’ve watched his statements, and honestly, they’ve been totally brilliant,” Trump said. “I think the other side is grasping at straws.”

Trump also said he believes Woodward’s book was “put out to interfere . . . with the Kavanaugh hearings, which I don’t think it has done.” The Post reported Tuesday on excerpts from Woodward’s book, which will be released next week.


1:58 p.m.: Kavanaugh declines to say if he would uphold law requiring coverage for preexisting conditions

Sen. Sheldon Whitehouse (D-R.I.) delved into Kavanaugh’s views on Obama’s health-care law. In their private meeting, Kavanaugh said he could not assure the senator that he would uphold the law’s requirement that insurance companies provide health-care coverage to people with preexisting medical conditions.

To make that assurance, Kavanaugh said on Wednesday, would compromise his independence as a judge because the issue could make its way to the Supreme Court.

The Justice Department has said it will not defend the Affordable Care Act against pending challenges from the states and advocates of the law have warned that Kavanaugh’s addition to the high court could lead to a rollback of certain coverage areas. In 2011, Kavanaugh issued a dissent when the U.S. Court of Appeals for the District of Columbia Circuit upheld the constitutionality of the Affordable Care Act in the case Seven-Sky v. Holder.


1:54 p.m.: Kavanaugh calls Brown v. Board of Education ‘single greatest moment in Supreme Court history’

Other Trump judicial nominees have struggled to say under oath whether Brown v. Board of Education — the landmark 1954 case declaring race-based segregation unconstitutional — was correctly decided. Not Brett Kavanaugh.

Kavanaugh on Wednesday called the decision the “single greatest moment in Supreme Court history” and said Plessy vs. Ferguson — the 1896 case legalizing segregation that Brown overturned — was “wrong the day it was decided.”

Earlier this year, Trump judicial nominee Wendy Vitter drew headlines when she refused to weigh in on whether Brown was correctly decided. And during Neil M. Gorsuch’s Supreme Court confirmation hearing last year, Democrats repeatedly had to press on the Brown question until the now-justice finally responded.

“Why will you not say you agree with the result?” Sen. Richard Blumenthal (D-Conn.) asked Gorsuch then.

Ultimately, Gorsuch said: “We’re on the same page on Brown v. Board of Education, senator. It’s a great and important decision.”


1:07 p.m.: Kavanaugh defends dissenting opinion in case involving pregnant immigrant teen

Senate Minority Whip Richard J. Durbin (D-Ill.) probed Kavanaugh’s views on abortion and why he had dissented in a high-profile case involving a pregnant immigrant teen in federal custody.

Kavanaugh’s colleagues on the D.C. Circuit ordered the Trump administration to allow her access to abortion services. But Kavanaugh would have delayed the procedure and suggested first releasing the teen to a sponsor who could have helped her terminate the pregnancy without the government’s involvement. Kavanaugh said the teen’s age was critical to his ruling and noted that the Supreme Court has upheld parental consent laws that can delay abortions.

“Had she been an adult, she would have had a right to an abortion immediately,” Kavanaugh said.

Durbin pushed back, noting that the teen had already received permission from a Texas judge to obtain an abortion.

“Judge, the clock is ticking,” Durbin said of the significance of the delay for the pregnant teen.

“I’m a judge, I’m not making the policy decision,” Kavanaugh said.


1:05 p.m.: Schumer objects to Judiciary Committee meeting

In an escalation of the fight over the nomination, Senate Minority Leader Charles E. Schumer (D-N.Y.) objected to the Judiciary Committee meeting while the Senate was in session.

Under Senate rules, the hearing could proceed if the Senate is in session for less than two hours. Prepared for Schumer’s objection, Senate Majority Leader Mitch McConnell (R-Ky.) adjourned the Senate, allowing the hearing to proceed.


1 p.m.: Leahy presses Kavanaugh on 2003 theft of nomination files

Earlier in the hearing, Sen. Patrick J. Leahy (D-Vt.) suggested that Kavanaugh had misled senators during his confirmation fight to the D.C. Circuit when he said he did not know about the theft of predominantly Democratic files related to judicial nominations by a former Republican staffer.

The contentious exchange, occurring in the late morning of Kavanaugh’s second day of confirmation hearings, referred to a 2003 incident in which the staffer, Manuel Miranda, was accused of stealing and publicizing internal memos from Democratic senators. In his line of questioning, Leahy strongly implied there is evidence Miranda gave Kavanaugh — who was then an associate White House counsel for President George W. Bush — at least one of the stolen documents, and that the evidence is laid out in material provided to the Senate Judiciary Committee that has not been disclosed to the public. He did not provide the evidence.

“I’m concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me, and that would contradict your prior testimony,” Leahy said. “There is no reason [that the emails] can’t be made public.”

Later, Graham gave Kavanaugh a chance to clarify his answers during his round of questions with Leahy.

“Did you ever know that you were dealing with anything that was stolen property?” Graham asked.

Kavanaugh responded: “No.”

The documents battle has been the major reoccurring theme in Kavanaugh’s confirmation fight to the Supreme Court. Nearly 200,000 pages of Kavanaugh’s records from his time in the Bush White House has been marked “committee confidential,” meaning that senators and Judiciary Committee staff can access them but the general public cannot. A separate batch of 100,000 pages are being withheld from the committee altogether because the Trump administration believes they would be covered by presidential privilege.

Leahy’s implication that the records were being improperly concealed drew an irritated response from Grassley, who said “that material is available to everybody” but nonetheless said he can’t guarantee that those documents could become public.

As Leahy tried to corner Kavanaugh into whether he had prior knowledge of the theft, the nominee said there was nothing unusual about discussing and sharing information about what questions senators of the opposing party might ask during confirmation hearings.

Leahy pressed Kavanaugh about whether he had met privately with Miranda at his home or had been told about a “mole” or “spy” providing secret information. Kavanaugh said he didn’t recall.

Further reading:

Hacking controversy from early 2000s resurfaces during Kavanaugh hearings


12:48 p.m.: Hearing resumes after lunch break

Kavanaugh’s confirmation hearing gaveled back in just over 30 minutes after recessing for lunch. Durbin is the next committee member to speak.


12:25 p.m.: Lunchtime recap: What we’ve learned so far

In his first morning fielding questions from members of the Senate Judiciary Committee, Kavanaugh refused to answer an inquiry about whether a president must respond to a subpoena, an issue that could come before the Supreme Court in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 election.

“I can’t give you an answer on that hypothetical question,” he told Sen. Dianne Feinstein (D-Calif.)

Feinstein had asked Kavanaugh about his views on investigations involving a sitting president. In the 1990s, Kavanaugh was a member of independent counsel Kenneth Starr’s team investigating President Bill Clinton, and took a hard line on questioning the president about what he called lies and “revolting behavior” involving intern Monica Lewinsky.

After subsequently serving in the George W. Bush White House in the aftermath of the Sept. 11, 2001, terrorist attacks, Kavanaugh said he came to believe that sitting presidents should not be distracted by criminal investigations or civil lawsuits.

Kavanaugh emphasized Wednesday that he had not taken a position on constitutional issues regarding presidential investigations.

“They were ideas for Congress to consider. They were not my constitutional views,” Kavanagh said of his writing in a 2009 Minnesota Law Review article.

Kavanaugh also declined to answer a question from Leahy about whether Trump is correct when he says he has the “absolute right to pardon himself.”

“I’m not going to answer,” Kavanaugh said, calling the question “hypothetical.”

“I hope for the sake of the country that remains a hypothetical question,” Leahy responded.

Kavanaugh was anxious to get ahead of questions on his view of presidential prerogative, and tried to put Feinstein at ease with his answers on abortion rights and whether Roe v. Wade should be respected as binding precedent or overturned.

In his initial response to committee chairman Charles E. Grassley (R-Iowa), Kavanaugh sought to dismiss previous remarks he had made that seemed to question the Supreme Court’s unanimous 1974 decision in U.S. v. Nixon, which said President Richard Nixon must turn over tapes of recordings he made in the Oval Office.

In a roundtable discussion with other lawyers years later, Kavanaugh ventured that “maybe Nixon was wrongly decided — heresy though it is to say so.” But supporters of Kavanaugh said he more often has referred to the decision as one of the greatest moments in American judicial history. “No one is above the law in our constitutional system,” he said.


Supreme Court nominee Brett M. Kavanaugh during his confirmation hearing in the Senate Judiciary Committee on Capitol Hill in Washington on Wednesday. (Melina Mara/The Washington Post)

Kavanaugh repeatedly testified that Roe v. Wade, the landmark 1973 ruling that legalized abortion, was settled precedent while indicating he recognizes the real-world consequences of the issue, saying: “I don’t live in a bubble.”

But under questioning from Feinstein, Kavanaugh did not say whether Roe was correctly decided — a punt that could give Democrats and abortion rights supporters an opening to argue that the nominee could ultimately overturn the decision.

“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the last 45 years, as you know, and most prominently, most importantly reaffirmed in Planned Parenthood v. Casey in 1992,” Kavanaugh said. He called Casey, which upheld Roe but allowed states to impose some restrictions on abortion, “precedent on precedent.”

Feinstein, who earlier cited the hundreds of thousands of women who had died because of illegal abortions in the years before Roe, appeared unpersuaded.

“How you make a judgment on these issues is really important to our vote as to whether to support you or not because I don’t want to go back to those death tolls,” she said. “I truly believe that women should be able to control her own reproductive systems.”

In response, Kavanaugh stressed to Feinstein, “I understand your point of view on that.”

“I understand the importance of the issue,” he said. “I don’t live in a bubble. I live in the real world.”

On other issues, Kavanaugh said he knew nothing about sexual harassment charges against Kozinski.

Further reading:

Who is Brett Kavanaugh, President Trump’s pick for Supreme Court?

A guide to the issues likely to come up in Wednesday’s hearing

Brett Kavanaugh memo proposed explicit questions for President Bill Clinton


12:17 p.m.: Hearing recesses for lunch, Senate vote

Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) dismissed the confirmation hearing for a 30-minute lunch break, breaking a stretch of questioning that lasted nearly three hours. Committee members will now have a chance to vote on the nomination of Elad L. Roisman to join the Securities and Exchange Commission and to attend the expected swearing-in of Jon Kyl to replace the late senator John McCain (R-Ariz.).

The senator next in line to speak when the hearing resumes is Durbin.


11:46 a.m.: Kavanaugh will not say whether Trump is correct in claiming ‘absolute right’ to self-pardon

Kavanaugh declined to answer Leahy’s question about whether Trump is correct when he says he has the “absolute right to pardon himself.”

“The question of self-pardon is something I have never analyzed . . . [It’s] a hypothetical question that I can’t begin to answer as a sitting judge,” Kavanaugh said.

“I hope for the sake of the country that remains a hypothetical question,” Leahy said.

Trump made the claim that he has the “absolute right to PARDON myself” in June on Twitter, adding: “Why would I do that when I have done nothing wrong?”

Kavanaugh also declined to answer whether the president can pardon somebody in exchange for a promise that the person would not testify against him.


10:54 a.m.: Kavanaugh says he knew ‘nothing’ about sexual misconduct allegations against Judge Alex Kozinski

Kavanaugh’s critics have suggested that he must have known about allegations of sexual misconduct by Kozinski before reports surfaced late last year. Kavanaugh clerked for Kozinksi on the Ninth Circuit Court of Appeals in 1991, and has remained in touch with his former boss through legal circles. But Kavanaugh said Wednesday he was unaware of the accusations that led to Kozinski’s retirement.

“It was a gut punch for me. It was a gut punch for the judiciary. I was shocked and disappointed,” Kavanaugh said, describing his emotions after learning about the allegations first reported by The Washington Post. “No woman should ever be subject to sexual harassment in the workplace.”

Kavanaugh praised initial steps by the federal judiciary to make it easier for employees to report harassment and misconduct by judges or colleagues. But, he said, the reforms are “not final steps by any stretch” and that the issues are “part of a much larger national problem of abuse and harassment.”


10:45 a.m.: Kavanaugh denies misleading senators in 2006 testimony on controversial interrogation and detainee policies

Kavanaugh said that he was not involved in controversial interrogation and detainee policies of the George W. Bush administration — trying to inoculate himself from Democratic claims that Kavanaugh misled senators when he testified on the issue more than a decade ago.

Whether Kavanaugh was untruthful during his confirmation hearings for the U.S. Court of Appeals for the D.C. Circuit has been one linchpin of the Democratic strategy to fight his nomination to the Supreme Court. Democratic senators, particularly Leahy and Durbin, say Kavanaugh misled them about how much he knew about those Bush-era programs.

But, under questioning from Sen. Orrin G. Hatch (R-Utah), Kavanaugh said he was “not read into” those programs and that he did not mislead senators in his 2006 testimony.

“I told the truth, the whole truth in my prior testimony,” Kavanaugh said. “ … I was not read into that program, not involved in crafting that program nor crafting the legal justifications for that program.”

Later in the hearing, Durbin claimed that Kavanaugh told him during a private meeting in his office recently that he was involved in discussions regarding two detained U.S. combatants and a 2005 signing statement regarding an amendment from then-Sen. John McCain that would ban torture by U.S. officials.

“What were you trying to tell me here?” Durbin asked Kavanaugh of his testimony in 2006. “Did you really disclose accurately your role?”

“Yes,” Kavanaugh said. “I understood the question then and the answer then, and I understand the question now and the answer now to be 100 percent accurate.”


10:33 a.m.: Kavanaugh declines to say whether presidents have to respond to subpoenas, calling it a ‘hypothetical’ question

Feinstein questioned Kavanaugh about his views on investigations involving a sitting president. In the 1990s, Kavanaugh was a member of independent counsel Kenneth Starr’s team investigating President Bill Clinton. After subsequently serving in the Bush White House in the aftermath of the Sept. 11 terrorist attacks, Kavanaugh said he came to believe that sitting presidents should not be distracted by criminal investigations or civil lawsuits.

Kavanaugh emphasized Wednesday that he had not taken a position on constitutional issues regarding presidential investigations.

“They were ideas for Congress to consider. They were not my constitutional views,” Kavanagh said of his writing in a 2009 Minnesota Law Review article.

Feinstein also pressed Kavanaugh about whether a sitting president can be required to respond to a subpoena.

Kavanaugh praised the Supreme Court’s landmark ruling that forced President Richard M. Nixon to turn over the Watergate tapes as a prime example of judicial independence. He declined, however, to answer the senator’s specific question.

“I can’t give you an answer on that hypothetical question,” he said.

If confirmed, Kavanaugh might be asked to rule on whether Mueller has the right to subpoena the president and compel his testimony in the Russia investigation.

Further reading:

Supreme Court nominee has argued presidents should not be distracted by investigations and lawsuits


10:30 a.m.: Kavanaugh declines to say if Roe v. Wade was correctly decided, says he does not ‘live in a bubble’ on the issue

Kavanaugh repeatedly testified that Roe v. Wade, the landmark 1973 ruling that legalized abortion, was settled precedent while indicating he recognizes the real-world consequences of the issue, saying: “I don’t live in a bubble.”

But under questioning from Feinstein, Kavanaugh did not say whether Roe was correctly decided — a punt that could give Democrats and abortion rights supporters an opening to argue that the nominee could ultimately overturn the decision.

“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the last 45 years, as you know, and most prominently, most importantly reaffirmed in Planned Parenthood v. Casey in 1992,” Kavanaugh said. He called Casey, which upheld Roe but allowed states to impose some restrictions on abortion, “precedent on precedent.”


WASHINGTON, DC — Senator Dianne Feinstein (D-Calif.) questions Supreme Court nominee Brett Kavanaugh during his confirmation hearing in the Senate Judiciary Committee on Capitol Hill in Washington, D.C. on Wednesday September 5, 2018. (Photo by Melina Mara/The Washington Post)

At another point in the hearing, Kavanaugh said he doesn’t “get to pick and choose which Supreme Court precedents I follow — I follow them all.”

Feinstein, who earlier cited the hundreds of thousands of women who had died due to illegal abortions in the years before Roe, appeared unpersuaded.

“How you make a judgment on these issues is really important to our vote as to whether to support you or not because I don’t want to go back to those death tolls,” she said. “I truly believe that women should be able to control her own reproductive systems.”

In response, Kavanaugh stressed to Feinstein, “I understand your point of view on that.”

“I understand the importance of the issue,” Kavanaugh said. “I don’t live in a bubble. I live in the real world.”

Further reading:

Sen. Susan Collins says Kavanaugh sees Roe v. Wade as ‘settled law’

On abortion and other issues, Kavanaugh’s heroes are more conservative than Kennedy

Roe v. Wade’s forgotten loser: The remarkable story of Dallas prosecutor Henry Wade


10:15 a.m.: Feinstein, Kavanaugh spar on right to high-powered firearms

Feinstein, the author of the now-defunct ban on certain high-powered firearms, pressed Kavanaugh about the basis of his dissent in a 2011 ruling that upheld Washington’s ban on semiautomatic rifles.

Kavanaugh said he was following Supreme Court precedent in the landmark decision declaring an individual right to gun ownership. Semiautomatic rifles, he said, are widely possessed throughout the country and therefore cannot be banned, according to the high court’s ruling.

Feinstein asked how Kavanaugh could “reconcile what you just said with the hundreds of school shootings” that have relied on such high-powered weapons.

The violence in the schools is something we all detest, Kavanaugh said, but he was confined by his reading of the high court’s ruling.


10:06 a.m.: Kavanaugh says he was not asked about his views on Roe v. Wade during nomination process

Kavanaugh testified that he was not asked about his views on Roe v. Wade nor did he give any promises on how he would rule as he was being considered to replace retired Justice Anthony M. Kennedy.

President Trump has come under fire by liberals for promising during his 2016 presidential bid that he would appoint only “pro-life” justices to the Supreme Court, and Democrats have warned that confirming Kavanaugh to replace Kennedy may overturn the landmark 1973 case that established the constitutional right to an abortion.

But under questioning from Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Kavanaugh said he was not asked about his views on Roe.

Kavanaugh also said that he did not give any promises nor assurances during the consideration process about how he would rule in court. His committee questionnaire shows Kavanaugh interviewed with Trump on July 2, spoke with him on the phone on July 8, and accepted the nomination to replace Kennedy later that same evening at the White House.


9:49 a.m.: Kavanaugh says ‘no one is above the law’ in response to question about executive power

Kavanaugh said that the best judges are “independent and immune from political or public pressure” and cited two cases in which the high court had not been swayed by politics.

In response to opening questions from Grassley, Kavanaugh cited the landmark ruling that forced President Richard Nixon to turn over the Watergate tapes and the court’s decision to desegregate public schools as examples of the court’s independence.

Grassley asked Kavanaugh whether he would have any trouble ruling against the man who appointed him as Democrats have suggested.

“No one is above the law,” Kavanaugh said.

If confirmed, Kavanaugh might be asked to rule on whether Mueller has the right to subpoena the president and compel his testimony in the Russia investigation .

Further reading:

Issues for Brett Kavanaugh: the president who chose him and the Supreme Court he would change


9:42 a.m.: Hillary Clinton says Kavanaugh would ‘help gut or overturn’ Roe v. Wade

Just as the questioning started, Hillary Clinton went on Twitter to attack Kavanaugh’s record on reproductive rights and urge her followers to voice opposition to his Supreme Court nomination.

“If Brett Kavanaugh becomes a Supreme Court justice, will he help gut or overturn Roe v. Wade, which legalized abortion in America? Yes, of course he will,” Clinton, the 2016 Democratic presidential nominee, said in the first of eight tweets sent in rapid succession.

“Antiabortion groups have endorsed Kavanaugh, considering him a reliable vote to overturn Roe,” the former secretary of state said in another.

“His confirmation would be a victory for activists who want to end a woman’s right to make her own health decisions.”

She urged those who agree with her to “pick up the phone right now and call your senators,” tweeting the hashtag #StopKavanaugh.


9:36 a.m.: Hearing gets underway

Grassley gaveled in the hearing, with 17 senators in attendance. Kavanaugh sat alone at the witness table with his wife and a full audience behind him. The first protesters’ voices could be heard at 9:37 a.m. as they were hauled out of the room.

Further reading:

Partisan fury bursts into the open as Kavanaugh hearings begin


8:24 a.m.: Grassley pushes back against Democrats

Grassley pushed back Wednesday morning on demands by Democrats to get access to more documents from Kavanaugh’s tenure in the George W. Bush White House.

“It’s irrelevant to his being a judge,” Grassley said during an interview on “CBS This Morning.”

Grassley said that senior Democrats have said in the past that “the best judge of whether a candidate should be on the Supreme Court are the cases they’ve already heard on lower courts” — and that the same standard should be applied to Kavanaugh.

On Tuesday, Grassley’s opening remarks were delayed for nearly an hour and a half as Democratic senators sought to cut off the hearings, raising an uproar over a last-minute document dump sent to the Judiciary Committee late Monday encompassing more than 42,000 pages from Kavanaugh’s tenure in the White House.

Grassley said the theatrics that played out on national television were not typical of the committee he chairs.

“We work in a more collegial way than what you’re seeing on television,” he said.


8:20 a.m.: What to watch for in today’s hearing


President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, listens to members of the committee during his confirmation hearing in the Senate Judiciary Committee on Capitol Hill on Tuesday, September 4, 2018, in Washington, D.C. (Photo by Salwan Georges/The Washington Post)

• Democrats will try to corner Kavanaugh on how he would rule on cases involving abortion access and the Affordable Care Act.

• Republicans will push back on Democrats’ attempts to squeeze specifics out of Kavanaugh by citing the example of Justice Ruth Bader Ginsburg, who said in her confirmation hearing that she would give “no hints” as to how she would rule on future cases.

• Democrats will raise questions regarding Kavanaugh’s testimony more than a decade ago about he was involved in the controversial detainee policies of the Bush administration.

Read more here.

Further coverage of Brett Kavanaugh:

Brett Kavanaugh once predicted “one race” in the eyes of the government. Would he end affirmative action?

The story behind the withheld documents of the Kavanaugh hearing

Michael Kranish and John Wagner contributed.