Brett Kavanaugh, Merrick Garland, and the Cohesion of the Federal Bench

Brett Kavanaugh, Merrick Garland, and the Cohesion of the Federal Bench
Unusual behavior: McConnell says Booker could face Ethics Committee scrutiny
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Share Share 4 winners and 3 losers from Brett Kavanaughs many-hour, multi-day confirmation hearings tweet share Reddit Pocket Flipboard Email Supreme Court nominee Brett Kavanaugh testifies in the third day of a marathon set of hearings in Washington, DC. Chip Somodevilla/Getty Images After days of hearings on President Trumps Supreme Court nominee, we are essentially back where we started. Brett Kavanaugh is on the fast track to a permanent place on Americas highest court.

Sen. Patrick Leahy, who was on the Senate judiciary committee back in the mid-2000s, asked Kavanaugh if he was involved in the stolen email scandal while he worked in the Bush White House in the early 2000s. Kavanaugh said he was unaware that emails were stolen at the time, and insisted that if he did know, he would would have blown the whistle on his colleagues. Fast forward to 2018, Leahy, still on the Senate judiciary committee, introduced new evidence that suggested Kavanaugh handled emails that were stolen during that time period.

There were times when Democrats won on small moments. They effectively won the narrative on the opening moments of the hearings by pointing out that Republicans dumped thousands of documents hours before the hearings were supposed to begin. Sen. Cory Booker (D-NJ) made a show of releasing emails that were already slated to become public to make a point about Kavanaughs views on diversity. Sen. Kamala Harris (D-CA) heavily implied — but didnt have the goods to prove — Kavanaugh inappropriately discussed the Mueller investigation with someone at Trumps personal lawyers firm.

As Ive said before, [Garland is] a great judge – a great chief judge – and hes very careful and very hardworking, and we work well together and try to read the statute as written, read the precedent as written, Kavanaugh said, Fox News reported, according to Mediaite . Hes a judge – like I try to be as well – a judge whos not trying to impose any personal preferences onto the decision but take the law as written, and thats what Ive tried to do in those cases and that probably explains some of that.

Some Democrats even suggested Kavanaughs disingenuousness in his role in Judge William Pryors nomination might constitute perjury (legal experts were not so convinced).

Though Democrats won some of the battles in the week of lengthy hearings, what ultimately matters is if 51 senators (or 50 senators and Vice President Mike Pence) want to confirm Kavanaugh to his place on the Supreme Court. And they almost certainly do.

Cory Booker threatened to break the rules to show he can play Donald Trumps game

Theres no secret that conservatives have been on a mission to remake federal courts. The Federalist Society, of which Brett Kavanaugh was once a member, was founded in the early 1980s as a reaction to what conservatives viewed as a tyranny of the liberal federal courts and law schools. The 1960s and 70s was the heyday of liberalism on the Supreme Court, which had ordered schools integrated, legalized abortion, and outlawed discriminatory voting laws in Southern states. These are seismic cultural shifts — and conservatives wanted a way to reverse these changes.

Garland's introduction to the Kavanaugh's nomination process is ironic considering Republicans refused to give him a hearing when former President Barack Obama wished to appoint him to Justice Scalia's old seat.

They set out on a mission to grow the ranks of conservatives in law schools, in federal courts, and ultimately at the Supreme Court. Now, with Kavanaugh as the fifth vote in the Courts conservative bloc, they are going to get their prize. Kavanaugh is more conservative than Republican-appointed Justice Anthony Kennedy, and though Kavanaugh gave a lot of non-answers on controversial topics, conservatives widely expect he will hand down victories on restricting abortion, striking down affirmative action, and protecting corporations from onerous environmental regulations.

Those who wish to bring down Kavanaugh's nomination say that these new, unearthed emails demonstrate that the judge perjured himself during the past hearings.

This is why frustrated liberals wont gain any traction by picking at Kavanaughs inconsistent statements or pointing to his conservative record. This is why Republicans continue to put up with Trump even as they increasingly admit that they dont necessarily approve of his erratic behavior or his associations with white supremacists. For them, the mission has always been about getting a majority of conservatives on the Court.

Indeed, as Voxs Jane Coaston pointed out, 56 percent of voters who found the Supreme Court nominations to be the most important factor went for Trump. Republicans made a deal: Theyd protect Trump, and Trump would give them their Supreme Court nominee.

Parkland shooting survivor gives powerful testimony at Kavanaugh hearings

It might still be two years out, but the looming 2020 election was as omnipresent as ever during the confirmation hearing this week. For several rumored Democratic hopefuls on the Senate Judiciary Committee — including Booker, Harris, and Minnesotas Amy Klobuchar — this panel was much more than an opportunity to scrutinize Kavanaugh. It was also an important chance to further establish themselves in the public consciousness ahead of the presidential election.

Harris and Booker, especially, didnt disappoint. Both lawmakers have been among the most forceful in their critiques of Kavanaugh up until this hearing, and their persistent protests and questioning during the panel stood out for their tone and substance.

Republicans pushed hard on the idea that Booker was not just grandstanding in advance of 2020, but was doing so under false pretenses. Judiciary Committee Chairman Chuck Grassleys office insisted the documents that Booker made such a show of releasing on Thursday morning had in fact been cleared to be released earlier in the day. Bookers office responded by taking a victory lap, insisting that he had “shame[d] the committee into agreeing to make last nights documents publicly available.”

Since the announcement of Kavanaughs nomination, Booker has pushed the case that theres a conflict of interest inherent in a president nominating a Supreme Court justice who could oversee elements of a criminal investigation of which hes a subject.

They view Trumps decision to nominate a solid conservative for the seat of swing vote Justice Anthony Kennedy as only the latest in a series of massive affronts committed by Republicans, beginning with their total refusal to even meet with Merrick Garland — President Barack Obamas nominee to replace the late Antonin Scalia on the court. More than 140 people have been arrested for protesting the Kavanaugh hearing on Capitol Hill over the first two days of hearings.

Booker releases secret Kavanaugh emails in defiance of Senate rules, drawing GOP condemnation

This week, Booker was also at the center of one of the hearings most contentious exchanges when he dramatically threatened to release documents that had been designated confidential to the committee, even if it meant he would get ousted from the Senate. This is probably the closest that Ill have in my life to an I am Spartacus moment, he said. (There has been some subsequent back-and-forth about whether those documents were already made public before Booker took his stand.)

Harris is also associated with two of the most viral moments to come out of the hearing. She was the first to ignite calls to adjourn the hearing as part of a protest staged by Democrats on the chaotic first day and had many people buzzing in the wake of a mysterious question she asked Kavanaugh on Wednesday. In that discussion, she implied that Kavanaugh may have a met with someone for Kasowitz Benson Torres, a firm founded by Trumps personal attorney, to discuss the Mueller investigation.

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As Politico reported earlier this week, both only recently hinted at their 2020 ambitions. Republicans, however, havent been shy about calling it out. Running for president is no excuse for violating the rules of the Senate or the confidentiality of the documents we are privy to, said Senate Majority Whip John Cornyn shortly after Booker proposed breaking Senate rules. —Li Zhou

Despite risking being expelled by the Senate, Booker released the confidential documents anyway. The document in question was already leaked to the public by the New York Times, so Booker releasing the document only served to make a statement while risking his job.

While his first major job was working for independent counsel Ken Starr in attempting to prove criminal wrongdoing by the president, Kavanaugh has since famously reversed himself, and said that Congress ought to pass a law preventing the president from being criminally investigated or prosecuted. Theres of course a difference between what laws hed support and how hed interpret the law once in office.

But with the president under investigation, Senate Democrats pressed Kavanaugh on the topic, only to be met with a stubborn refusal to opine on a hypothetical. Kavanaugh wouldnt say if the president has the right to pardon himself. He downplayed his proposal for immunity: They were ideas for Congress to consider. They were not my constitutional views. But obviously the difference can and often does blur for justices.

If youre the president, and worried that your appointee might make an about-face and affirm that youre subject to ordinary prosecution and investigation, thats pretty great news. —Dylan Matthews

Sen. Cory Booker at Kavanaugh hearing says he is releasing email "about racial profiling" to "expose" that documents "being withheld from the public have nothing to do with national security."

A steady stream of protesters punctuated the hearing this week — including women dressed as Handmaids lining the halls, activists occupying Judiciary Chair Chuck Grassleys office, and others rallying in front of the Supreme Court. On both Tuesday and Wednesday, roughly 70 protesters were either arrested or forced to leave the hearing room as they intermittently shouted out to disrupt the proceedings.

“I think youve missed the point of releasing these emails which is to note that Cory Booker is Spartacus,” another user wrote in response to another tweet.

Odds arent looking good for their cause, however. Senate Majority Leader Mitch McConnell has said he intends to hold a vote on Kavanaugh in the Senate before October 1, the beginning of the Supreme Courts fall session. Activists and Democrats were looking toward this weeks hearing as a pivotal opportunity to make their case against him and drum up grassroots opposition.

This is about more than women dying. Its about women living; about the quality of life we can expect, the rights we are guaranteed as citizens within this country. This is about the brilliant 18-year-old who misses her first day at Harvard because she got pregnant over the summer; this is about the mother whos forced to give birth to a child with no kidneys and who never forgets the look of pain on its face as it dies; this is about the woman desperately saving to provide a better life for the child she already has, only to watch her family spiral into a cycle of poverty after shes forced to give birth to a second child she cant afford. This is about the daughter growing up motherless, simply because her mother tried to end an unplanned pregnancy. This is about women being sidelined, burdened, silenced, sacrificed, women losing the people they could have been and the lives they could have led and the dreams and ambitions that used to keep them going, women working fewer hours for less pay and having to make the dollar stretch farther, simply because their government has decided they dont deserve the right to control their own bodies.

Video: Brett Kavanaugh Refuses to Answer Question on Marriage Equality

As their thinking goes, if enough protesters put pressure on important swing votes like Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), its possible, but unlikely, that they could be convinced to block Kavanaughs nomination.

Video: Leahy says Kavanaugh emails prove misrepresentations

During the hearing, however, Kavanaugh managed to evade direct answers on hot-button issues like executive power, abortion rights, and health care by either citing the Ginsburg rule and deeming the inquiries hypotheticals or noting that certain suits were ongoing. As a result, the panel provided little ammunition that protesters didnt already have. —LZ

Overturning Roe v. Wade will create a nation of Gosnells, and the casualties will rise. Globally, an estimated70,000 women per year die from unsafe abortions. The term women is a little misleading, because the people most likely to die from unsafe abortions are actually children — teenage girls, between 15 to 19, who are more likely to get pregnant because they have a harder time getting ahold of contraception. In the United States, particularly, we can safely predict that most of the casualties would also be poor — women living below the poverty line have similar difficulty affording contraception, and comprised 42 percent of all abortion patients in 2008. Many of the adult casualties will leave children behind; most abortion patients, 61 percent, are mothers whove had all the children they can afford.

Advocates for gender equality and racial justice have been concerned about Kavanaugh since his nomination, and his responses during his confirmation hearings did nothing to assuage their worries. When questioned about his views on Roe v. Wade, he fell back on vague statements like, Its settled as precedent of the Supreme Court, even though he himself said in a 2003 email that the Supreme Court can overturn any precedent it wishes. Essentially, nothing Kavanaugh said did anything to dispel the concern that he would vote to overturn or gut Roe v. Wade.

Kavanaugh has played coy about his willingness to overturn Roe — it has been re-affirmed many times over the past 45 years, he says, without mentioning that those affirmations often hang on a single vote or clarifying whether he would vote against it— but nothing in his record indicates that he would support it. Hes vocally opposed Planned Parenthood v. Casey, which he himself cites as the most important re-affirmation of Roe v. Wade and the right to abortion, and suggested that Roe was wrongly decided as recently as 2017. And, in the event that Roe falls, anti-abortion groups are working to criminalize the procedure — including bills that would subject suspected abortion patients (in practice, anyone with a suspicious miscarriage) to imprisonment or capital punishment.

If that happens, abortion would probably remain legal in some states, but access nationwide would almost certainly be restricted even more than it is now — and those facing the most barriers would be low-income people and people of color. As Julie Rikelman, senior director of litigation for the Center for Reproductive Rights, put it in an interview with Vox earlier this week, the people who are harmed by abortion restrictions disproportionately are people who are poor, who are young, who are minorities.

Getty ImagesBill Clark It takes a bit of doing to call advocates for womens healthcare hysterical while simultaneously claiming theyre lacking in historical memory. The word hysteria comes from an ancient Greek theory that the uterus could wander around inside the body and cause insanity by clogging the pathways to the brain. One cure for this condition was for women to be pregnant as often as possible to keep the ostensibly bored womb occupied, and therefore in its rightful place. Millennia later, women still have to stage massive protests for their right not to be pregnant. The problem is not that were screaming too loudly. The problem is that its 2018 and we still have to scream.

Democrats press Trumps court pick after new documents are released | New Hampshire

Kavanaugh also appeared to refer to birth control as abortion-inducing drugs. While he was paraphrasing a claim made by a religious group, his larger argument — that it was an unacceptable infringement on religious freedom to require religious groups to fill out a form in order to be exempted from Obamacares contraceptive coverage requirement — suggests hed be likely to rule in ways that would restrict contraceptive coverage. Again, those most likely to lose access would be low-income Americans.

This is particularly true, given that theres little that Democrats can do to block Kavanaugh. They dont have the numbers. Those women screaming about Roe arent protesters, any more; theyre mourners. This is the funeral of the country women thought we had, the feminist progress we thought wed made, and if you cant shed a tear over the casket, then dont show up. But it is deeply unwise to harm people and then deny them the right to a reaction. If Kavanaughs critics cannot make the GOP heed their pain, they may well make them feel their rage. If not now, then soon, in the many elections to come.

When questioned about his views on race and affirmative action, Kavanaugh was just as vague as he was on other topics. Asked by Booker about his statement in 1999 that all Americans would be considered one race in 10 or 20 years, he said it was an aspirational comment inspired by hope. Asked for his personal opinion on affirmative action, he again fell back on talk of precedent: I have to follow precedent and the precedent allows remedies in certain circumstances.

Overall, Kavanaugh said nothing to show he would uphold reproductive rights or affirmative action if confirmed — and some of his comments suggested his decisions might actively harm them. —Anna North

Republicans perhaps didnt expect to win the arguments that had been raised during the George W. Bush years on warrantless wiretapping and torture years later, but here we are. Kavanaugh is a Bushie through and through, and in fact cited the 9/11 attacks during his confirmation hearing as the reason he changed his mind on criminal investigations and the presidency.

What changed was September 11. I thought very deeply about the presidency, and I thought very deeply about the independent counsel experience, Kavanaugh said. When I saw President Bush come into the Oval Office on September 12, he said, This will never happen again.

Democrats zeroed in on early-2000s-era testimony Kavanaugh had delivered during judicial confirmation hearings in which he insisted he knew nothing about the Bush administrations warrantless wiretapping program.

But emails released this week revealed he actually had some knowledge of the surveillance operation the Justice Department conducted under the legal guidance of John Yoo. Similarly, his previous testimony indicated he had no knowledge of the legal justification of detention of enemy combatants — but Sen. Dick Durbin (D-IL) pointed to records that showed otherwise.

All through this week, Kavanaugh repeatedly denied having any personal role in the Bush administrations legal justification for torture or warrantless wiretapping, but as a Supreme Court justice, hell certainly be involved. —KS

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