What Day 2 Revealed About Kavanaugh

Sep 6, 2018
Originally published on September 6, 2018 1:58 pm
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BRETT KAVANAUGH: I base my decisions on the law, but I do so with an awareness of the facts and an awareness of the real-world consequences. And I've not lived in a bubble.


That's the voice of Supreme Court nominee Brett Kavanaugh on the second day of his confirmation hearing yesterday - a hearing in which he presented himself as an open-minded judge, guided by the law but aware of the impact his rulings have in people's lives. He insisted, though...


KAVANAUGH: I have no agenda in any direction. I'm a judge.

MARTIN: Democrats, of course, see Brett Kavanaugh differently. They pressed the nominee on his record on politically divisive issues like gun control, abortion and executive power. NPR White House correspondent Scott Horsley has been following the hearings and joins us now. Good morning, Scott.

SCOTT HORSLEY, BYLINE: Good morning, Rachel.

MARTIN: What did lawmakers on the Senate Judiciary Committee learn about Brett Kavanaugh yesterday?

HORSLEY: I'm not sure they learned a great deal. Brett Kavanaugh has been an appeals court judge now for a dozen years, and he's written more than 300 opinions. As he talked to members of the Judiciary Committee, he was obviously fluent in addressing Supreme Court precedents. He could rattle off citations like the law professor that he also is.

But when he was pressed about his own views in areas like abortion, like affirmative action, where he is thought to be well to the right of the man he would replace, Justice Anthony Kennedy, and where the Supreme Court has the possibility of reversing its own precedents, that's where Kavanaugh clammed up. Like other nominees before him, he declined to say how he might rule on cases that might come before him.

MARTIN: So given the controversies surrounding this particular presidency that is the backdrop to this nomination, Democrats are especially interested in Kavanaugh's views about executive power and the limits, if there are any. I understand, though, Republicans were also asking about this at the hearing.

HORSLEY: They did. Chuck Grassley, the committee's chairman, went first. And he asked Kavanaugh if he would have any trouble ruling against the president who nominated him. Kavanaugh said, no, he wouldn't - that no one is above the law in our constitutional system. And he cited with approval past cases where Supreme Court justices had ruled against the interests of the Presidents who'd nominated them. In fact, he said that some of the greatest moments in Supreme Court history came in those moments when the court flexed its independence in that way.

He declined to say, though, again, how he might rule in some particular cases, or whether the president, say, has the power to trade a pardon for a promise of silence from one of his associates.

MARTIN: I imagine, though, similar questions - this line of questioning isn't going to go away. He's going back up to the Hill today. We're going to hear more of the same?

HORSLEY: That's right. And one of the things he's been asked about is a law review article he wrote for the Minnesota Law Review in which he opined that presidents are, you know, too busy, too important to be distracted by an investigation or a prosecution. He stressed yesterday that that was - what he was writing about there was guidance for Congress, suggesting Congress might want to grant the president that kind of immunity. He was not, he said, weighing in on how he might rule as a judge.

Some of those answers were not entirely satisfying to Democrats. Patrick Leahy of Vermont said, when Kavanaugh suggested one of these questions was hypothetical, he said, well, I hope for the sake of our country, it remains a hypothetical question.

MARTIN: Worth pointing out though, Kavanaugh still has a pretty clear pathway to confirmation here.

HORSLEY: He does. And it got even more clear yesterday when Jon Kyl took over the seat vacated by John McCain. Kyl has been shepherding the Kavanaugh nomination.

MARTIN: All right. NPR White House correspondent Scott Horsley, thanks.

HORSLEY: You're welcome. Transcript provided by NPR, Copyright NPR.