Supreme Court nominee Brett Kavanaugh’s confirmation tumbled into highly charged arguing Thursday about whether key documents were being withheld, and one Democrat risked Senate discipline by releasing confidential material. A newly disclosed email revealed that President Donald Trump’s pick once suggested Roe v. Wade was not settled law.
The finger-pointing about the unusual vetting process for Trump’s nominee made for a rough start for the final day of questioning of Kavanaugh who has so far avoided major missteps that could block his confirmation. Republican John Cornyn of Texas said senators could be expelled from office for violating confidentiality rules, while Democrats led by Cory Booker of New Jersey, responded, “Bring it on.”
Meanwhile it was shown, in an email obtained by The Associated Press, that Kavanaugh had taken a different tone on a 2003 abortion case than he had during Wednesday’s hearing when he stressed how difficult it is to overturn precedents such as Roe. In the email, Kavanaugh was reviewing a potential op-ed article in support of two judicial nominees while he was working at the George W. Bush White House, according to the document. It had been held by the committee as confidential.
“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, referring to justices at the time, in an email to a Republican Senate aide. The document is partially redacted.
Asked about it by the committee’s top Democrat, Dianne Feinstein of California, Kavanaugh reiterated his previous testimony that “Roe v. Wade is an important precedent of the Supreme Court.”
The 15-year-old email underscored a dispute that has dominated part of the hearing about Kavanaugh’s paper trail stemming from his years in the Bush White House. The panel’s process resulted in hundreds of thousands of pages of Kavanaugh’s documents being withheld as confidential or kept from release under presidential privilege by the Trump White House.
Booker called the process “a bit of a sham.” He was chastised by GOP colleagues for having discussed a confidential document about Kavanaugh’s legal views on race. Cornyn said it was “irresponsible and conduct unbecoming a senator.”
Chairman Chuck Grassley, R-Iowa, stood by his handling of Kavanaugh’s paper trail.
“My process was fair,” Grassley said as he opened the session.
So far, Kavanaugh appears on track toward confirmation in the Republican-held Senate, although after a marathon 12-hour session Wednesday, he also does not seem to have changed minds on the committee, which is split along partisan lines.
The judge left unanswered questions about 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.
Trump says he’s pleased with his nominee’s performance, and Republicans are united behind him, eager to add a conservative judge to the court.
Late in the evening, Kavanaugh seemed to stumble at first when questioned by Democrat Kamala Harris of California about whom he might have spoken with at a law firm concerning the investigation into Russian election meddling. The firm in question was founded by Marc Kasowitz, who has represented Trump.
Kavanaugh eventually said he couldn’t think of any such conversations although he would need to see a list of the firm’s lawyers.
Protesters have repeatedly tried to interrupt the hearing, which has carried strong political overtones ahead of the November congressional elections. Democrats lack the votes to block confirmation although they have been pressing Kavanaugh for his views on abortion rights, gun control and other issues.
On Wednesday the judge insisted he fully embraced the importance of judicial independence. He refused, however, 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.”
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 noted that Roe 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.
Kavanaugh told Sen. Mazie Hirono, D-Hawaii, he had been unaware of the domestic-violence allegations against Rob Porter, who was Trump’s staff secretary, until they were publicly disclosed. 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.”
Republicans hope to confirm Kavanaugh in time for the first day of the new Supreme Court term, Oct. 1.