***Live Updates*** SCOTUS Confirmation Hearings: Brett Kavanaugh Faces Final Round of Questions

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Tony Lee

Supreme Court nominee Brett Kavanaugh will face a second round of questioning on Thursday before the Senate Judiciary Committee. Senators will get 20 minutes for their final round of questions.


Stay tuned to Breitbart News for live updates throughout the day. All times eastern.

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10:05 PM: Harris asks why it is the court’s job to decide if the country is beyond race and is one race. She asks what the consequences would be in such a society for federal funding of Historically Black Colleges and Universities and the Civil Rights Act of 1964. Kavanaugh emphasizes stance against discrimination.

9:57 PM: Flake says he is against cameras in the Supreme Court.

9:44 PM: Booker using his time to ask Kavanaugh if he would fire someone because of their gender, color of their skin, sexual orientation. Kavanaugh points out he hires based on merit. Booker now asking if Kavanaugh has officiated over a gay marriage. Kavanaugh says he has not. Booker pressing Kavanaugh on his views on same-sex marriage. He says the Bush administration wanted a constitutional amendment banning same-sex marriage and wants to know Kavanaugh’s involvement.

9:34 PM: Sasse asks about the importance and core purpose of the First Amendment. Kavanaugh: It’s an individual idea so people can express themselves. He says a lot of ideas began as unpopular ideas so it’s important to protect debate and the right for people to express their ideas through speech/writing. Sasse asks about hate speech/First Amendment and Kavanaugh says there is no provision against it because the Framers knew unpopular ideas needed to be expressed. Sasse speaks about “ant-majoritarianism” being central to American political philosophy.

9:25: PM: Hirono grilling Kavanaugh on labor cases like Janus and Abood before focusing on guns. She says the NRA is spending hundreds of thousands of dollars supporting Kavanaugh.

9:01 PM: Blumenthal wasting everyone’s time by asking Kavanaugh to commit to a ban on “assault weapons.” Blumenthal says 3-D guns will be in “common use” and said he was tempted to bring images of children murdered at Sandy Hook. Kavanaugh says he will take Blumenthal’s concerns about gun violence into account.

8:56 PM: Kavanaugh wonders why Kavanaugh called Chevron an “atextual invention” when Scalia supported the standard.

8:47 PM: Lee, like Crapo earlier about wonderful Idaho, talking about federal government owning western land and westerners not being able to do anything without a “mother, may I?” permit. Lee talking about Enclave Clause language that may require the federal land to be acquired with the consent of  home-state legislators. He says the federal government owns nearly 2/3 of the land in Utah and it makes it impossible for local governments to tax the land, etc. Lee now curious about why Kavanaugh takes notes with a Sharpie. Kavanaugh says he does so so he can see his notes.

8:35 PM: Coons wants to discuss a speech Kavanaugh gave at AEI in which he called Rehnquist his “first judicial hero.” He wants to ask Kavanaugh about Glucksberg, curbing the creation of unenumerated rights/liberty clause, and about due process rights only being those that are “objectively rooted in American tradition.”

8:25 PM: Whitehouse accuses Kavanaugh of being a “human torpedo” being launched at the Mueller investigation.

8:20 PM: Leahy asks questions about technology and privacy, and Sasse praises Leahy for asking great questions that were “past versus future” instead of left versus right.

8:12 PM: Sen. Kennedy asking Kavanaugh about originalism/constitutional textualism and asks why he puts so much emphasis on the Federalist Papers.

8:06 PM: Affirmative Action: Feinstein asks if Kavanaugh believes that colleges could use race as one factor to increase diversity. Kavanaugh cites Texas’ “Top 10%” plan and says George W. Bush believed in “race-neutral means” first while also nothing that “promoting racial diversity was an important goal” for his administration. Feinstein’s question was about Michigan affirmative action case. She

8:03 PM: Feinstein asks Kavanaugh about his “expansive views on presidential power.” Kavanaugh says his writings/opinions prove that he has held the executive to account and his view is not “expansive.”

8:02 PM: Hatch asks Kavanaugh what “equal justice under the law” means to him.

He says it means everybody who ends up in an American court is entitled to equal treatment, due process.

8:01 PM: Durbin asked what he witnessed re: Trump’s appreciation of the vital role of the judiciary. Kavanaugh said he based his comments on his interactions with Trump in the days leading up to his announcement.

7:53 PM: Democrats getting ready for a third, and Durbin leads off. He’s talking about school shootings–mentions a mother who called him about her first-grade daughter being warned about school shootings. He wants to talk about the Second Amendment during this round of questioning. They’ve discussed Heller a lot, and Durbin is bringing it up again. Kavanaugh claims he is not alone re: “common sense” rule. Kavanaugh giving the same answers he gave yesterday, referencing his opinion in Heller and how he analyzed Scalia’s majority and Alito’s plurality opinions in McDonald.

7:36 PM: Kavanaugh tells Cornyn that is has been “a great honor” to testify before the Senate Judiciary Committee.

7:15 PM: There will be a third round of questioning as Democrats want eight minutes each to ask more of the same questions. Grassley gets laughs when he tells Republicans he hopes they have nothing more to say.

7:05 PM: Harris grills Kavanaugh about Obergefell (asks if he thinks it was one of the court’s greatest moments), whether he has watched coverage of illegal immigrants separated at the border, whether the Chinese Exclusion cases should be overturned and whether Kavanaugh knew they had not been, Whole Women’s Health (Texas abortion clinic restrictions), Roe, and “unenumerated rights.” She asks about voting rights/unenumerated rights.

6:55 PM: Harris says he received reliable information that he has had discussions about Mueller with the law firm that is representing Trump. She accuses Kavanaugh of equivocating. Kavanaugh says he has not had conversation with anyone at the firm about Mueller.

6:46 PM: Kavanaugh talks about his tattered pocket Constitution that he got about 25 years ago. 27th Amendment not in his Constitution.

6:37 PM: Tillis now questioning Kavanaugh. Tillis thanks the staff on both sides of the aisle the police working 16-hour shifts. Tillis has been a breath of fresh air during the past two days. He points out that Senators should not say things that have already been said multiple times. Again, Tillis with the best jabs against Booker. Says there didn’t have to be phony “civil disobedience” and “Spartacus” moments.

6:25 PM: Booker now talking about various outlets that are tracking Trump’s alleged lies. He wants to know if a president’s character matters to Kavanaugh. He wants to know what kind of loyalty is being required for this job. Repeating what Democrats have been saying, he says something “incredible” happened in May (Mueller) and Kavanaugh, who wasn’t on the first two list of potential nominees, was on the third list. Booker says these are “unusual times” in the United States. Cites the anonymous NYT op-ed. He says a “test for all of us is coming” and “a test for the Supreme Court is coming as well.” He says it’s important that the Supreme Court be “above suspicion.” He wants Kavanaugh to announce that he will recuse himself from any cases involving Trump. Democrats just keep asking the same question in different ways over and over and over and over and over again.

6:17 PM Sen. T-Bone (D-NJ), who wasted an hour this morning grandstanding, now questioning Kavanaugh. He wants to ask Kavanaugh about documents and asks if he has communicate with Bill Burck after Kennedy’s announcement that he would retire.

5:30 PM: Looks like there will be a third round of questioning after Senators conclude their second round of questioning in a few hours.

4:55 PM: Crapo and Kavanaugh discussing rule-making, issues re: administrative law.

4:45: Crapo mentions a CNBC article in which Kasowitz denies anyone at his firm spoke to Kavanaugh about the Mueller investigation. From CNBC:

Marc Kasowitz, a personal attorney for President Donald Trump, threw cold water on Sen. Kamala Harris’ questioning of Brett Kavanaugh, denying he had any contact with his firm, Kasowitz Benson Torres.

“There have been no discussions regarding Robert Mueller’s investigation between Judge Kavanaugh and anyone at our firm,” a spokesman for Kasowitz said in a statement first provided to CNBC on Thursday.

4:35 PM: Blumenthal repeatedly asks whether Kavanaugh ever discussed Mueller’s investigation with anyone in the White House or at Kasowitz’s firm. Blumenthal says he’ll take his answer as a no. He’s now offended by Trump’s tweets attacking Ginsburg and repeatedly questions Kavanaugh about whether he agrees with Trump’s insults about Ginsburg.

4:20 PM: Discussion now turns to technology and privacy. Kavanaugh says one’s privacy is impacted if government gets “your whole life” when it gets someone’s data from a technology company.

4:10 PM: After Kavanaugh introduces some of the girls he has coached throughout the years, Flake talks about his trip to South Africa with Sen. Coons a few months ago. He praises South Africa’s constitutional court that ruled against the sitting president that allowed parliament to remove him. He “marveled” at how South Africa had a court that understood their role and how important it was to be completely independent of the executive. Now he talks about Mugabe. And he discusses limits to executive power like he did yesterday.

3:45 PM: Coons says Kavanaugh is not being honest about his views on the “unitary executive theory” and presidential power because if he were in the age of Trump, it would put his nomination in “jeopardy.”

Kavanaugh says he has reaffirmed  Humphrey’s Executor and said Nixon v. U.S. was one of the Court’s best decisions.

3:25 PM: Coons asks if Nixon violated the law or constitution when he fired Archibald Cox, the special prosecutor. Kavanaugh: “It violated the regulation.”

3:15 PM: Kavanaugh says dissents speak to the next generation, and that’s why they are important. They are discussing Justice Harlan’s famed dissent in Plessy.

3:09: Sasse and Kavanaugh discussing precedent and the need for established rules and precedents. They are discussing Kavanaugh’s 2016 law review article: The Judge as Umpire: Ten Principles. They are discussing this part of the article:

Second, to be a good judge and a good umpire, you also have to follow the established rules and the established principles. A good umpire should not be making up the strike zone as he or she goes along. Judges likewise should not make up the rules as they go along. We see this in statutory interpretation, for example. A good judge sticks to the established text and canons of construction that help guide us in interpreting ambiguous text. Justice Antontin Scalia has had a profound influence on statutory interpretation. One of the things he has helped to do is to narrow the areas of disagreement about how to interpret statutes. Every judge now seems to start with the text of the statute. If you came to our court and sat in our courtroom for a week—and I do not advise that for anyone who wants to stay sane—you would hear every judge asking, “What does the text of the statute say? How does the text of the statute support your position?” That has been a big change in statutory interpretation, and it has helped establish better and clearer rules of the road.

Following established rules includes stare decisis: we follow the cases that have been decided. We operate in a system built on Supreme Court precedent. As lower court judges, we must adhere to absolute vertical stare decisis, meaning we follow what the Supreme Court says. And to be a good lower court judge, you must follow the Supreme Court precedent in letter and in spirit. We should not try to wriggle out of what the Supreme Court said, or to twist what the Supreme Court said, or to push the law in a particular direction, but to follow what the Supreme Court said in both letter and spirit. Horizontal stare decisis has some flexibility, as it must. Vertical stare decisis is absolute.

3:05: When Sasse asks if the Supreme Court has made any mistakes, Kavanaugh responds with Plessy and Dred Scott.

2:57 PM: Klobuchar says her father has been a journalist for his whole life and she and Kavanaugh discuss New York Times v. Sullivan. 

2:46 PM: Klobuchar wants to know if there is a difference between “precedence” and “settled law.” Kavanaugh says he does not want to give a “thumbs up” or “thumbs down” to potential cases that will come before him. Klobuchar now asking about executive powers. She keeps grilling him on his Minnesota Law Review article re: impeachment and Kavanaugh says Congress has investigative powers and the Constitution specifies impeachment. Klobuchar wants to know if a president should not be subjected to criminal prosecution if a president hypothetically committed murder. Kavanaugh says it’s a “timing question” and the president can be prosecuted after leaving office.

2:45 PM: Klobuchar wants to discuss campaign finance with Kavanaugh and intends to ask follow-up questions from yesterday’s questioning re: Buckley v. Valeo. She wants to know if strict scrutiny is the right standard to apply to all campaign finance laws.

Kavanaugh speaks about the divide between contributions and expenditures. (different levels of scrutiny)… “precedent of the Supreme Court that has been applied since 1976.”

2:32 PM: Kavanaugh speaks about the importance of textualism in deciding cases in response to a question from Cruz. He also addresses his opinions in which he supported the rights of religious speakers to their rights in the public square. Kavanaugh says he will regularly play basketball on the “highest court in the land”–the basketball court on top of the Supreme Court. He says Justice Thomas was the last to regularly play but he got injured playing… Kavanaugh says he hopes he won’t follow that precedent.

2:10 PM: Whitehouse questions Kavanaugh’s remarks about Clinton’s White House running a presidentially approved “smear campaign.” Kavanaugh doesn’t want to talk about current events when Whitehouse continues questioning.

 

1:30 PM: Phony Cory:

1:04 PM: Lee asking Kavanaugh about Harris’ question last night about the Kasowitz firm. He says Harris was a bit “ominous” when she said Kavanaugh had to “be sure” in his response. Lee says the firm has offices in nine cities and even Kasowitz probably does not know everyone who works in the firm that he founded. They both realized last night that Sen. Lieberman works at the firm and they did not that beforehand. Kavanaugh says he has not made any promises to anyone about how he would rule on cases that could come before him.

12:59 PM: Lee again goes back to Booker’s question last night–he asked Kavanaugh questions about emails from 18 years ago that Kavanaugh did not even have in front of him. Lee says that these emails deal with issues concerning affirmative action case Adarand. Lee says Kavanaugh was doing what a good lawyer should do in identifying five Supreme Court Justices who would not accept the government’s argument (Department of Transportation) in Adarand and offered a remedy. Lee says that Booker should vote for him.

12:53: Durbin and Kavanaugh go back and forth about whether Kavanaugh was involved in some Bush administration programs re: torture and detention. Durbin keeps trying to make the case that Kavanaugh lied to him in 2006 when Kavanaugh has repeatedly said he was not “read into” those programs.

12:46: Durbin says books are being written about how “democracy dies” in the age of Trump and he wants reassurances about his views on executive power/importance of democratic institutions in this “historical context.” Kavanaugh says his record shows his commitment to the independent judiciary as the “crown jewel” of the republic. He says a foundational principle is that “no one is above the law.” Kavanaugh says a court order requiring a president to do or not to do something is the “final word.”

12:36: Durbin again makes it about Trump. He says we have to take Kavanaugh’s nomination in that context and uses his time to blast Trump for ridiculing the Justice Department and being an “un-indicted co-conspirator.” He mentions Woodward’s book and the anonymous NYT article. He wants to know his views on the authority of the president. Says America hasn’t been this riveted by a SCOTUS nomination since Clarence Thomas because of Trump’s recent actions/statements. He is grilling Kavanaugh on the “unitary executive” theory. He says in the age of Trump, this view of presidential power takes on “added significance.” Durbin gets in a line about “Scalia decisis” when speaking about Republican lawmakers who feel bound by Scalia’s dissents re: their opposition to the Mueller investigation.

12:32: Durbin now begins his questioning. He thanks Grassley for the fairness he has shown. Durbin again says protesters of the “costs of democracy.” He claims he doesn’t know who organized the protests.

11:55 AM: Graham asks Kavanaugh if there is anything written in the Constitution about abortion. Kavanaugh says Supreme Court recognized it in 1973 and it has been “reaffirmed many times.” He keeps pressing Kavanaugh about whether there is any phrase in the Constitution about abortion. Graham says “liberty doesn’t equate to abortion” after Kavanaugh speaks about the liberty clause. Graham wants to know what are the limits on the court re: finding “penumbra of rights,” etc. He then questions Kavanaugh about whether terrorists will be incentivized to recruit American citizens if Americans can’t be held as “enemy combatants.”

11:48 AM: Graham says circuses are entertaining and you can take children to them. He says these hearings are neither entertaining nor appropriate for children. Graham blast Democrats for playing games and accusing Kavanaugh of stealing emails, etc. and flipping legal concepts upside down. He urges Democrats just to vote no.

11:47 AM:

11:46 AM: Kavanaugh says he will not comment on a potential case when Leahy asks about whether a gun made by a 3-D printer could be regulated.

11:32 AM: Leahy keeps trying to establish, getting frustrated more and more, that Kavanaugh was not truthful about the “stolen” emails.

11:27 AM: Hirono releases confidential documents as well:

11:26 AM: Leahy begins by accusing Kavanaugh of receiving “stolen material” from Manny Miranda. “Digital Watergate,” Leahy says again, continuing his line of questioning from yesterday.

11:17 AM: Kavanaugh says he was talking about what various legal scholars could think on Roe when Hatch gives Kavanaugh an opportunity to address Feinstein’s previous questions re: previously confidential email.

11:16 AM: Kavanaugh says the warrant requirement ensures that the executive branch cannot invade someone’s liberty without probable cause.

11:13 AM: Kavanaugh says the judge’s jobs is to focus on the words of the statute passed by Congress when Hatch asks him about interpreting laws to cover situations that those who wrote the law could not have foreseen. Speaks about liberty vs. security issues becoming more important in the future.

11:11 AM: Kavanaugh says he has not had any “inappropriate conversations” with anyone about the Mueller investigation when Hatch gives him a chance to respond to Harris’ line of questioning from last night.

11: 10 AM: Booker releases confidential documents:

11:05 AM: Hatch commends Kavanaugh for his level-headedness. Hatch says he has never seen the types of interruptions and accuses the left of trying to turn this in to a “circus.” He worries about precedent this could set. He blasts left for its “mob mentality” and the “sick” leftists for attacking Kavanaugh’s allies who are attending the hearing.

11:03 AM: Feinstein now grilling Kavanaugh about Enron and how the fraud and market manipulation contributed to CA’s energy crisis. She asks Kavanaugh about talking points he wrote about whether it was up to FERC to stop such conduct. Kavanaugh says FERC would have a role but he is not sure if it should have primary responsibility. Says he was not an expert in those type of cases at the time.

10:58 AM: Feinstein now asking Kavanaugh about the Sea World case in which a killer whale killed a trainer. Kavanaugh says he follows precedent when he ruled that the Labor Department did not have the authority to regulate employers in sporting/entertainment. He says state tort law (NFL concussions) exists to ensure safety. Says he pointed out Labor Dept. could change precedent or Congress could act but he was following precedent–Dept. traditionally not been thought of as proper body to prohibit punt returns or mandate ear flaps on helmets, etc.

10:55 AM: Feinstein says, “We have a president who said he could authorize worse than waterboarding. How would you feel about that?” Kavanaugh says he will not comment. Feinstein asks Kavanaugh if Bush’s post-9/11 policies re: interrogations were legal. Kavanaugh talks about the need to give sound legal advice and “backbone” but also says it’s important for lawyers to tell a president “no.”

10:53 AM: Kavanaugh mentions that George W. Bush was a pro-life president and says his job was to assist him on policies related to that so some things may have crossed his desk. Feinstein said the Bush White House took steps to limit abortions.

10:43 AM: Feinstein starts off by going back to Roe. She says she now has a previously confidential document that is now public.

She asks if he believes Roe is settled law and if he believes it is correctly settled.

Kavanaugh, like he said yesterday, says Roe is an “important precedent” that has been “reaffirmed many times.” Speaks about “precedent on precedent” like he did yesterday.

10:41 AM: Grassley now asking Kavanaugh, like Kennedy did last night, about keeping an open mind about cameras in the courtroom. He again says he may be more open to allowing cameras for the announcement of decisions than for oral arguments.

10:35 AM: Grassley finally begins his 20 minutes of questioning and says it is wrong to frame Kavanaugh as someone who does not rule for the “little guy.” He says Kavanaugh applies the law fairly to all. Agitator interrupts. Grassley gives Kavanaugh to discuss a case in which he rule for a woman who was denied Social Security benefits (“hall of mirrors for the woman). He reversed the denial for the woman with mental illness.

10:30 AM: Tillis, who has successfully thrown many jabs at Booker during his remarks, says it took him 17 years to get his college degree after attending five schools, none of which will be elevated to the Ivy League. He says he is not planning to run for president in 2020 or ever. He suggests Senators waive their rights to their documents and suggests they release all of the emails relating to the confirmation process.

10:22 AM: Grassley recognizes Booker and hopes that Booker won’t keep saying the same thing. Booker said he violated the rules so the public can know Kavanaugh’s views on the race. Booker says this is the closest he will have to an “I am Spartacus moment.” Booker proud that he has violated the rules and keeps mentioning how he knowingly “violated the rules” over and over again.

10:20 AM: Coons arguing that the documents belong to the American people.

10:18 AM: Lee says if Democrats are frustrated, then they should review the Presidential Records Act.

“These documents are not ours,” Lee says, adding the public is not entitled to documents that do not belong to them as Democrats have been trying to argue. “They belong to someone else.”

Lee says he understands that Democrats want to look for a “demon” and says, in this case, “the demon is a law of our own creation–the Presidential Records Act.”

10:15 AM: Earlier in Grassley’s office:

10:13 AM: Durbin says “count me in” if there is going to be retribution against Booker. Hirono says “count me in” too–she’s going to be releasing documents as well.

NAACP salute’s Hirono’s “courage.”

10:07 AM: Sen. Durbin (D-IL) says, like Sen. Whitehouse (D-RI), his silence should not be interpreted as consent. Durbin spoke after Feinstein said the public is entitled to all of the documents. Durbin claims Bill Burck doesn’t have the authority to determine which documents should be marked “classified.” He then blasts Cornyn for saying Booker’s conduct was “unbecoming of a Senator.”

10:02 AM: Sen. Lee (R-UT), who first called out Booker last night and said Kavanaugh is entitled to see the emails he was being questioned about, says the process is not rigged and has worked.

9:57 AM: Sen. Kennedy (R-LA) says he was trying to be fair to Kavanaugh last night after Booker ambushed him with questions about an email that Kavanaugh did not have a copy of and he says he was trying to be fair to both sides. Sen. Blumenthal (D-CT) now using his time to mention Bob Woodward’s book and the New York Times anonymous op-ed to say the breakdown of the process on the Committee is reflective of the chaos in other parts of the government.

9:50 AM: Booker says he will violate rules–penalty is potential ouster from the Senate–in an act of “civil disobedience” and release one of the confidential emails about racial profiling.

“I understand the consequences of civil disobedience,” Booker said, admitting that he is “knowingly violating” the rules of the Senate.

Cornyn tells Booker that “running for president is no excuse for violating the rules of the Senate,” and says what Booker is doing–flouting the Senate rules to release classified emails–is like releasing classified information.

“Conduct unbecoming of a Senator,” Cornyn adds.

9:42 AM: Booker now speaking about the “absurdity” of the process re: documents. Yesterday, Booker claimed the system was “rigged.” He now says the process “is a bit of sham.” Grassley asks “was it a sham when we did it for Gorsuch?” He asks if it was a sham when Sen. Leahy did it?

9:40 AM: Grassley suggests Democrats all along wanted to play politics with documents. Like Sen. Mike Lee (R-UT) did last night, he takes issue with Booker and Democrats for using confidential emails in their questioning.

9:35 AM: Grassley says that even Sen. Feinstein (D-CA) conceded that Kavanaugh was “forthcoming” in his answers. Feinstein’s left-wing challenger Kevin de Leon was less than thrilled:

9:25 AM: Senators now entering the room as the third day of hearings is about to begin. Looks like there will be more protesters. But in a strange way, the protesters have helped Kavanaugh go relatively unscathed. They often interrupt when Democrats on the Committee are trying to build momentum, essentially giving Kavanaugh what can be considered numerous 20-second timeouts to regroup. The agitators have also made the left look terrible to regular Americans.

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