Senators will launch a final round of questioning of Brett Kavanaugh on Thursday, but after a marathon 12-hour session, President Donald Trump’s nominee to the Supreme Court appears to have avoided any major missteps that could trip his confirmation.
So far, Kavanaugh does not seem to have changed minds on the Judiciary Committee, which is split along partisan lines. The judge left unanswered questions over how he would handle investigations of the executive branch and whether he would recuse himself if cases involving Trump under special counsel Robert Mueller’s probe end up at the court.
His credibility may face new tests by senators who are seeking to make public some emails and documents from his Bush White House years that are being withheld by the committee as confidential.
Trump said he’s pleased with his nominee’s televised performance, and Republicans are united behind him, eager to add a conservative judge to the court.
The questioning of Kavanaugh has carried strong political overtones ahead of the November congressional elections. Democrats lack the votes to block confirmation but have been pressing Kavanaugh for his views on abortion rights, gun control and other issues. Protesters have added to the challenges for Kavanaugh, repeatedly interrupting proceedings.
“You’re more than halfway done,” Sen. Thom Tillis, R-N.C., told Kavanaugh as he gaveled the hearing closed late Wednesday.
Pressured by Democrats with Trump on their minds during Wednesday’s grueling session, the judge insisted that he fully embraced the importance of judicial independence. But he refused to provide direct answers to Democrats who wanted him to say whether there are limits on a president’s power to issue pardons, including to himself or in exchange for a bribe. He also would not say whether he believes the president can be subpoenaed to testify. Still, he began his long day in the witness chair by declaring that “no one is above the law.”
When Sen. Jeff Flake, R-Ariz., asked what constraints exist on executive power, the judge cited existing laws but also norms. “Norms are important. Historical practice is relevant to judicial decision-making,” he said.
Democrats are concerned that Kavanaugh will push the court to the right and that he will side with Trump in cases stemming from Mueller’s investigation of Russian interference in the 2016 election and possible ties to the Trump campaign. The 53-year-old appellate judge answered cautiously when asked about most of those matters, refusing an invitation from Democratic Sen. Richard Blumenthal of Connecticut to pledge to step aside from any Supreme Court cases dealing with Trump and Mueller’s investigation.
Under questioning by Republicans, Kavanaugh stressed the importance of judicial independence, “not being swayed by political or public pressure.”
On abortion, Kavanaugh said the landmark 1973 Roe v. Wade decision that ensures access to abortion has been affirmed “many times.” He defended his dissenting opinion last year in the case of a pregnant immigrant teen in federal custody. Kavanaugh would have denied her immediate access to an abortion, even after she received permission from a Texas judge.
Sen. Orrin Hatch, R-Utah, praised Kavanaugh for hiring female lawyers as 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, who considered the judge a friend and mentor, 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.”
Kavanaugh also told Sen. Mazie Hirono, D-Hawaii, he was unaware of the domestic violence allegations against Rob Porter, who was Trump’s staff secretary. Journalist Bob Woodward’s new book about Trump says Kavanaugh recommended Porter for the job.
Kavanaugh had served as staff secretary to George W. Bush and his work in the White House has figured in the hearing. Democratic senators have fought for access to documents from his three years as staff secretary, saying those could shed light on his views about policies from that era, including the detention and interrogation of terror suspects. Republicans have declined to seek the papers, and instead have gathered documents from his work as White House counsel to Bush.
When questioned about the honesty of his 2006 testimony during his nomination for the appellate court when he said he was not involved in some Bush-era policies, Kavanaugh said he was “100 percent accurate.”
Late Wednesday, Sen. Cory Booker, D-N.J., drew a rare partnership with Sen. Mike Lee, R-Utah, to release of some of the Bush-era documents. Lee complained that Booker was relying on an unreleased email to question Kavanaugh’s openness to racial profiling by police, but then agreed to work for its release.
The Democrats’ final questioner Wednesday night engaged in a cryptic exchange with Kavanaugh about whether he has talked with anyone at a law firm about special counsel Robert Mueller’s investigation.
The questions from Sen. Kamala Harris of California centered on the law firm founded by Marc Kasowitz, who has represented President Donald Trump. Kavanaugh said he couldn’t think of any such conversations, but he’d need to see a list of lawyers who work at the firm.
Harris challenged Kavanaugh’s answer. She said she thinks Kavanaugh was “thinking of someone and you don't want to tell us.”
She did not say why she was asking the question but said she would follow up on it. Judiciary Committee Republicans complained that the question was unfair.
Republicans hope to confirm Kavanaugh in time for the first day of the new Supreme Court term, Oct. 1.