Kavanaugh Ducks Questions on Presidential Powers and Subpoenas

WASHINGTON — Judge Brett M. Kavanaugh, President Donald Trump’s nominee to the Supreme Court, on Wednesday dodged direct questions about whether the Constitution would allow Trump to use the powers of the presidency to thwart the Russia collusion and obstruction investigations that are swirling around his administration.

Testifying before the Senate Judiciary Committee on a grueling second day of hearings, Kavanaugh refused to say whether he believes Trump, as a sitting president, could be subpoenaed by Robert Mueller, the special counsel, to testify in the sprawling inquiry. Answering questions in public for the first time since his nomination, the judge also declined to say whether Trump could escape legal jeopardy by pardoning himself or his associates.

“I’m not going to answer hypothetical questions of that sort,” Kavanaugh said, insisting it would be inappropriate for a Supreme Court nominee to publicly offer views on issues that might come before the court once he is a justice.

Kavanaugh also declined to say he would disqualify himself from cases concerning Trump.

In a hearing that began in the morning, stretched into the night, and seesawed between intense grilling by Democrats and fawning praise by Republicans, Kavanaugh sought to present himself as an evenhanded arbiter of the law rather than a partisan ideologue driven by a desire to carry out a Republican policy agenda. He parried questions, without any obvious blunders, on matters ranging from abortion to gun rights to executive powers and arcane provisions of antitrust law.

At least two more days of hearings remain, but absent a startling revelation, he appears headed to confirmation by the end of the month because Republicans remain largely united behind his nomination.

But Kavanaugh did little to win over Democrats. Speaking generally, he insisted he would be an independent justice prepared to rule against the president who appointed him. “No one is above the law in our constitutional system,” he said.

At the same time, he did not retreat from views offered in law review articles that revealed a robust conception of presidential power, views he said had been forged in large part by five years of service in the White House under President George W. Bush.

Under attack from progressives and Democrats who say he will roll back abortion rights, Kavanaugh said he believes that Roe v. Wade, the 1973 landmark Supreme Court case establishing a woman’s right to an abortion, was “settled as a precedent of the Supreme Court,” and as such, deserves respect from judges. But he did not say whether he believes Roe was correctly decided.

But then he noted a subsequent case, the 1992 case of Planned Parenthood v. Casey, which narrowed the scope of Roe at the same time it reaffirmed Roe as a precedent.

Casey, which gave states the authority to regulate abortion so long as those regulations do not pose an “undue burden” on the woman, is “precedent on precedent,” he said.

On that issue and others, Kavanaugh repeatedly sought to demonstrate empathy, telling senators that when it comes to understanding the real-life implications of abortion, “I don’t live in a bubble. I understand I live in the real world.” He defended his dissent last year in Garza v. Hargan, in which he argued that the Trump administration should have been allowed to temporarily block a teenager in the country illegally from having an abortion while it sought to place her with a sponsor. He said he had followed Supreme Court precedents, even as he acknowledged that there was no directly applicable case.

“I did my level best in an emergency posture,” Kavanaugh said.

He said that took the teenager’s situation into account. “I tried to recognize the real world effects on her,” he said. “I said consider the circumstances. She’s a 17-year-old, by herself, in a foreign country. In a facility where she’s detained. And she has no one to talk to. And she’s pregnant. Now that is a difficult situation.”

Sen. Richard Blumenthal, D-Conn., said Kavanaugh had participated in an attempt to deny the teenager access to a constitutional right, placing her health at risk.

Protesters continued to interrupt the hearing, adding to the tension after an opening day on Tuesday in which dozens of people were arrested after loudly disrupting the proceedings. There were more arrests Wednesday. One woman was led out of the hearing room shouting “sham president, sham justice”; another hollered, “You’re gaslighting the American people,” drowning out Kavanaugh as he calmly carried on.

Democratic senators angrily railed against a swiftly moving confirmation process, accusing Republicans on the committee of refusing to make public documents that they said call into question Kavanaugh’s honesty about his past congressional testimony and his record as a political operative and a lawyer in the Bush White House.

Sen. Patrick J. Leahy, D-Vt., raised two Bush-era scandals with Kavanaugh, and he suggested that Bush White House emails in the Judiciary Committee’s possession may contradict testimony the nominee made more than a decade ago — if only they could be released publicly.

One of the scandals was the disclosure in late 2003 and 2004 that a Republican Judiciary Committee staff member had infiltrated the Democrats’ confidential internal files about which of President George W. Bush’s judicial nominees to try to block and with what tactics. The other was the disclosure that after the Sept. 11, 2001, terrorist attacks, the Bush administration had secretly ordered the National Security Agency to intercept Americans’ phone calls and emails without obtaining the judicial warrants seemingly required by the Foreign Intelligence Surveillance Act.

At his appeals court confirmation hearing in 2006, Kavanaugh — who had worked as an associate White House counsel in the Bush administration — told senators that he did not know anything about the infiltration of Senate Democrats’ files on judicial nomination fights or about the warrantless wiretapping program before they eventually became public.

But Leahy indicated that documents marked “committee confidential” — and kept secret from the public — provide evidence that Kavanaugh had contact with Manuel Miranda, then a Republican staff member on the Judiciary Committee, and had more involvement with the surveillance program than he had acknowledged.

“I am concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me,” Leahy said. “And that would contradict your prior testimony. It is also clear from public emails — and I’m refraining from going into nonpublic ones — that you had reason to believe materials were obtained inappropriately at the time.”

Kavanaugh insisted that everything he had testified to before was “100 percent accurate,” but indicated that he was not sure what Leahy was referring to. With Democrats casting him as a partisan who was nominated by Trump only to protect the president, Kavanaugh spent considerable time trying to demonstrate his independence. One case he cited to buttress his argument was notable: United States v. Nixon, the 1974 decision in which Supreme Court unanimously ruled that President Richard Nixon had to comply with a subpoena seeking tapes of his conversations in the Oval Office.

In 1999, Kavanaugh mused aloud that “maybe Nixon was wrongly decided.” He made the statement soon after serving under Ken Starr, the independent counsel who investigated President Bill Clinton. Kavanaugh’s allies have said he meant the statement as a critique of the legal strategy of Clinton’s lawyers.

But on Wednesday, he called it “one of the greatest moments because of the political pressures of the time.”

“The courts stood up for judicial independence in a moment of national crisis,” Kavanaugh said, ranking the decision as one of the Supreme Court’s greatest achievements.

Kavanaugh also sought to portray himself as an advocate for women. He described sexual harassment allegations against Alex Kozinski, a former federal appellate judge for whom he once clerked, as “a gut punch for me,” and said he knew nothing of the behavior. And he told the committee he has made aggressive efforts to hire female clerks; 25 of his 48 clerks were women.

Kavanaugh sidestepped questions from Sen. Cory Booker, D-N.J., about his personal views on affirmative action and racial profiling, even as Booker said Kavanaugh was hostile to affirmation action and open to racial profiling.

But the judge defended his decision upholding South Carolina’s voter identification law, arguing that he had taken the “real-world effect” into account and had forced the state to take steps to ensure the law did not impose an undue burden on black people.

On gun rights, Kavanaugh told the committee the Second Amendment protected the right of Americans to own semi-automatic rifles because they are in “common use,” and not a “dangerous and unusual weapon” — a position he took in a much-publicized 2011 dissent, which he said was rooted in Supreme Court precedent. That prompted an outcry from Sen. Dianne Feinstein of California, the top Democrat on the judiciary panel.

“How do you reconcile what you’ve just said with the hundreds of school shootings using assault weapons that have taken place in recent history?” she asked.

“Senator, of course the violence in the schools is something we all detest,” the judge replied. But he added, “As a judge my job, as I saw it, was to follow the Second Amendment opinion of the Supreme Court.”