Kavanaugh stresses judicial independence, won’t discuss White House subpoenas
By MARK SHERMAN
and LISA MASCARO
The Associated Press
WASHINGTON — Supreme Court nominee Brett Kavanaugh repeatedly stressed the importance of judicial independence on the second day of his confirmation hearing Wednesday as he faced questioning from senators, including Democrats who fear he would be President Donald Trump’s man on the high court. But he declined to address whether Trump could be subpoenaed or could pardon himself.
Pressed by Judiciary Committee Chairman Chuck Grassley, a Republican, on whether he would be independent from the president who nominated him, Kavanaugh responded, “No one is above the law.”
But asked later by the panel’s top Democrat, Sen. Dianne Feinstein of California, whether a president can be required to respond to a subpoena, Kavanaugh said, “I can’t give you an answer on that hypothetical question.” The Supreme Court has never answered that question, and it is among the most important at Kavanaugh’s hearing since Trump could face a subpoena in special counsel Robert Mueller’s Russia investigation.
Kavanaugh also refused to say whether he thinks a president can pardon himself — or provide a pardon in exchange for a bribe or pardon someone on the understanding that the person wouldn’t testify against the president.
“I’m not going to answer hypothetical questions of that sort,” Kavanaugh said, responding to questions from Sen. Patrick Leahy of Vermont.
Day two of Kavanaugh’s confirmation hearings began much as the first with protesters often interrupting proceedings. Some two dozen protesters were escorted from the hearing room after shouting objections to Kavanaugh’s nomination. One shouted that the questions senators were asking about executive power were not “hypothetical” and should be answered.
Despite interruptions, senators plunged into their initial opportunity to publicly question Kavanaugh in what was expected to be a marathon day of examination.
The hearing has strong political overtones ahead of the November election, but Democrats lack the votes to block Kavanaugh’s confirmation. They fear Kavanaugh will push the court to the right on abortion, guns and other issues, and that he will side with Trump in cases stemming from Mueller’s investigation of Trump’s 2016 campaign.
Addressing some of those concerns, Kavanaugh said that “the first thing that makes a good judge is independence, not being swayed by political or public pressure.” He cited historic court cases including Brown v. Board of Education that desegregated schools and U.S. v. Nixon that compelled the president to turn over the Watergate tapes — a ruling that Kavanaugh had previously questioned.
“That takes some backbone,” he said of the justices who decided those cases.
Asked about court precedents, the importance of previously settled cases including the landmark 1973 Roe v. Wade decision that ensures access to abortion, Kavanaugh said, “Respect for precedent is important. … Precedent is rooted right in the Constitution itself.”
Kavanaugh noted that Roe was reaffirmed in a 1992 decision, Planned Parenthood v. Casey. He likened it to another controversial, landmark Supreme Court decision, the Miranda ruling about the rights of criminal suspects. Kavanaugh said the court specifically reaffirmed both decisions in later cases that made them “precedent on precedent.”
Sen. Orrin Hatch, R-Utah, praised Kavanaugh for hiring female lawyers as his clerks as a judge on the District of Columbia court of appeals, and then posed questions about whether Kavanaugh was aware of sexual harassment allegations against retired circuit court Judge Alex Kozinski in California. Kavanaugh had clerked for Kozinski in the early 1990s and considered the judge a friend and mentor.
Kavanaugh said he had known nothing about the allegations until they were disclosed last year. “It was a gut punch for me,” he said, and he was “shocked, disappointed, angry.”
Asked about an email list Kozinski allegedly used to send offensive material, Kavanaugh said: “I don’t remember anything like that.”
Trump nominated Kavanaugh, 53, to fill the seat of retired Justice Anthony Kennedy. The change could make the court more conservative on a range of issues.
Republicans hope to confirm Kavanaugh in time for the first day of the new Supreme Court term, Oct. 1.
In stressing his independence, Kavanaugh pushed back against suggestions that after his time on independent counsel Kenneth Starr’s team investigating Bill Clinton in the 1990s, he no longer believes a sitting president should be investigated. He said his views did shift after the Sept. 11, 2001, attacks but his ideas about revisiting the special counsel law were merely suggestions.
“They were some ideas for Congress to consider. They were not my constitutional views,” he told the panel.
Pressed by Feinstein on his comment several years ago that U.S. v. Nixon might have been wrongly decided, he said his quote — shown on a poster above the senator — was “not in context” and “I have repeatedly called U.S. v. Nixon one of the four greatest moments in court history.”
The judge’s work in the George W. Bush White House also has figured in the hearing, particularly as Democratic senators have fought for access to his documents from his three years as staff secretary that could shed light on his views about policies from that era, including the detention and interrogation of terror suspects. Republicans have declined to seek those papers, and instead have gathered documents from his work as White House counsel to Bush. Many are being held as confidential within the committee.
Democratic Sen. Dick Durbin of Illinois asked Kavanaugh if he would seek a delay in his hearing so the paper trail could be vetted.
But Kavanaugh declined to engage, saying. “I do not believe that’s consistent” with the way prior nominations have been handled. He also declined to give an opinion on the Republicans’ action on the documents, responding, “It is not for me to say.”
Kavanaugh stood by his 2006 testimony when nominated for the appellate court when he said he was not involved in some Bush-era policies, particularly a bill-signing statement on the treatment of terror suspects that would have passed his desk as staff secretary.
Kavanaugh responded to Durbin, as he did to similar questioning from Leahy about Bush-era surveillance policy, that his earlier testimony was “100 percent accurate.”
Democrats, including several senators poised for 2020 presidential bids, tried to block the proceedings on Tuesday in a dispute over the records. Republicans in turn accused the Democrats of turning the hearing into a circus.
Trump jumped into the fray Tuesday, saying on Twitter that Democrats were “looking to inflict pain and embarrassment” on Kavanaugh.
The president’s comment followed the statements of Democratic senators who warned that Trump was, in the words of Sen. Richard Blumenthal of Connecticut, “selecting a justice on the Supreme Court who potentially will cast a decisive vote in his own case.”
The most likely outcome of this week’s hearings is a vote along party lines to send Kavanaugh’s nomination to the full Senate. Majority Republicans can confirm Kavanaugh without any Democratic votes, though they’ll have little margin for error.
One of several red-state Democrats watched as potentially voting for Kavanaugh, Sen. Joe Manchin of West Virginia, joined the hearing in the audience for a while. He is up for re-election this fall. Independent Sen. Angus King of Maine also stopped in for part of the session.
Republicans will hold a slim 51-49 majority in the Senate once Jon Kyl, the former Arizona senator, is sworn in to fill the seat held by the late Sen. John McCain.
Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, who both favor abortion access, are the only two Republicans even remotely open to voting against Kavanaugh, though neither has said she would do so. Abortion rights supporters are trying to appeal to those senators.