Thread by @Hegemommy

Gather round, friends as we settle into Day Two of Kavanaugh confirmation hearings!

Senators are milling about judiciary and things should be starting soon

Grassley gavels the room to order and wishes everyone a good morning.

Reminder: no good mornings for Grassley

Grassley says Democratic Senators interrupted proceedings 63 times and protesters were escorted out about 70 times.

Protesters start speaking over Grassley now. Sounds like a disability rights activist

Protesters shouting over Grassley as he declares "today is different" in terms of how the hearings will proceed

Protester from Ohio shouts to Grassley that they are not working with Democrats but that they speak for themselves

First round of questions are happening today, no matter how long it takes Grassley says.

Senators get 30 min rounds

Lunch break and 2 other 15 min break. First will happen after about 5 senators or so have asked their questions

Grassley is the first to question Kavanaugh. Starts with Kavanaugh's time on the D.C. Circuit Court of Appeals and the hundreds of pages of opinions Kavanaugh has offered

Reminder this is the basis for the GOP saying we don't need to see Kavanaugh's White House documents

"There's no dispute you're one of the most qualified Supreme Court nominees" Grassley says.

Quotes Bill Clinton attorney Bob Bennet's recommendation letter for Kavanaugh

Grassley's first question:

What makes a judge a good one and what influenced you the most

Kavanaugh: Independence and independence comes directly from Article III and guaranteed by protection from life tenure and pay cuts

I am honestly amazing that Kavanaugh has so much speaking experience and he still has terrible delivery

Kavanaugh cites both Brown v Board of Education and US v. Nixon as touchstones of judicial independence

Someone reads his own press

Kavanaugh pivots to precedent and says precedent is rooted in the constitution which might surprise some originalists

Kavanaugh also says reading the statues and constitution is part of being a good judge.

First sports analogy by Kavanaugh. I expect a lot more as the week continues

Second shout to Brown v Board of Education.

Kavanaugh also says he's tried to always be a collegial judge.

Reminder: not being an asshole shouldn't be the floor for being a lifetime appointee to the Supreme Court

Judging is real people, in the real world Kavanaugh says.

Like the Parkland parents? The father whose hand you refused to shake in introduction? Those real people?

Grassley pivots to separation of powers and the role of the independent judiciary. Grassley says a judge's sole job is to find and apply the law

Grassley scolds the audience: no-one is above the law.

Sir, please direct that statement to the witness

Kavanaugh responds by quoting the Federalist Papers and says so more things but I'm already drifting off because he is the least compelling speaker I've heard since Mike Lee yesterday

Protesters interrupting Kavanaugh's explanation of judicial independence

It's resisting political pressure, Kavanaugh says of judicial indepence

Reminder: SCOTUS held 5-4 in favor of Trump's Muslim ban

Grassley tells the protesters they are interrupting 300 million people by disrupting the proceedings

Kavanaugh says he's a "pro-law" judge and that's part of what makes him an independent judge

Grassley asks Kavanaugh if anyone made him make assurances on how he'd vote.

Kavanaugh says no.

Protester starts changing "Save Roe Vote No"

*chanting

Grassley asks Kavanaugh of his view on the 10th Amendment and states rights

Tenthers feel so quaint and 2008

After a grouchy monologue Grassley then asks Kavanaugh if he's ever followed precedent despite it conflicting with his personal beliefs.

Kavanaugh says his personal beliefs don't matter.

Tell that to the Jane Doe and the other minors in Garza v Hargan

Kavanaugh says he's always looking for how to apply precedent to the cases before him.

Again, I suggest y'all read his opinions in Garza v Hargan to see how he "applies" precedent like PP v. Casey

Grassley invoking the "Ginsburg rule" which is not a real thing and totally fake news but maybe one of our first drinking tiles for the morning in SCOTUS bingo?

Kavanaugh invokes "nominee precedent" for the idea that he can't answer questions substantively

Sen. Feinstein up now. She apologizes for the "circumstances" and says "we'll get through it"

Ummm how about we don't?

Feinstein starts with guns and specifically the assault weapons ban that expired.

Kavanaugh has said DC assault weapon ban was unconstitutional and violates the 2A because assault weapons are commonly used.

Feinstein asks Kavanaugh basically what the hell do you mean by that

Kavanaugh says his opinion is bound by Heller

Reminder: no it wasn't. Kavanaugh goes way beyond Heller here.

Feinstein interrupts Kavanaugh to get him to address his comment that assault weapons are in "common use"

Kavanaugh pivots back to Heller to not really answer

"This is all about precedent for me" Kavanaugh says

Kavanaugh says there are millions of semi-automatic weapons in the US so that's the basis of his belief these weapons are in "common use"

You're saying the numbers determine use, Feinstein asks incredulously

Kavanaugh says the question is are they dangerous and unusual?

All weapons are dangerous [LIKE SPOONS!]

The Supreme Court said machine guns can be banned, Kavanaugh says. This is somehow to help his case for how he respects precedent

Kavanaugh's answer that if a firearm is widely owned is the 2A test concedes that the NRA is the driving force behind 2A law because it coincides with their pumping guns through commerce

How do you reconcile what you said with the hundreds of school shootings that have taken place, Feinstein says.

Kavanaugh says nobody likes school shootings and want to do something about it. 🤷🏻‍♀️

Feinstein pivots to Roe and quotes Justice O'Connor on how reproductive autonomy means that women can participate in economic life

Kavanaugh says he understands the precedent of Roe and Casey

Calls the O'Connor quote one of the "rationales" that undergird those decisions.

Feinstein responds with data on deaths from illegal abortions.

Feinstein: What do you mean by settled law?

Kavanaugh says it's settled as precedent under the Supreme Court

If confirmed Kavanaugh can unsettle that precedent

Kavanaugh now mentions Kennedy's opinion in PP v. Casey

That's Kennedy's only pro-abortion rights vote before tagging along with the liberal wing in Whole Women's Health

The Senators need to ask Kavanaugh how he understands Whole Woman's Health.

Feinstein asks Kavanaugh if his views on Roe have changed since his time in the Bush White House. During that time Kavanaugh likely worked on the federal partial birth abortion ban

The federal partial birth abortion ban was a conservative cause to directly undo a SCOTUS opinion blocking an identical Nebraska ban.

IOW Kavanaugh likely gamed a conservative response to attack abortion rights and Roe/Casey

Feinstein switches to presidential power and Kavanaugh's time on the Starr team

What are the circumstances when a sitting president can be subject to criminal indictment

Kavanaugh giving a long narrative answer to this question and I just took a bagel break sorry I'm back!

Kavanaugh says 9-11 changed his views on when and if a president can face indictment

Coincidentally that's when the Bush White House went extra-sidewise on things like torture, surveillance, and detention

Feinstein tells Kavanaugh that he's doing "very good" and "learning to filibuster" in response to his answer

Feinstein asks Kavanaugh if US v. Nixon was wrongly decided

Kavanaugh doesn't give a yes or no answer. Says its one of the greatest moments in SCOTUS history

Feinstein presses again: was it rightly decided?

Kavanaugh stammers: I've said yes, then walks that back by explaining it is tied to the specific regulations and facts of the case

So.... not good precedent Kavanaugh?

Feinstein is exactly right here. Kavanaugh is filibustering and won't answer whether or not he thinks a sitting president can be subject to a subpoena.

Then says he can't answer the 'hypothetical' because it's a hypothetical that could come before him

Note this wasn't a hypothetical. It was a direct question of Kavanaugh's views of executive power and authority

Sen. Hatch up. Submits a letter from members of SCOTUS bar who support Kavanaugh. Hatch calls out Lisa Blatt specifically as a signatory

Blatt is a 'liberal feminist' but she is first and foremost a corporate SCOTUS litigator

Read @mjs_DC on this point
slate.com/news-and-polit…

Hatch asks Kavanaugh to keep his answers concise.

Hatch says people think Trump nominated Kavanaugh because he'd rule in Trump's favor.

Can you assure us you won't let Trump's views impact your decisions?

The better question is what views do you share with President Trump?

Kavanaugh says he's independent and whoever has the better law will be the winner before Kavanaugh

Hatch asks what loyalty he owes to Trump

Kavanaugh says he owes loyalty to the constitution

This exchange is exactly why people hate these hearings and call them meaningless

Hatch asks for a list of cases where Kavanaugh ruled against the Bush administration since Kavanaugh was close with Bush.

Kavanaugh cites the Hamdan case [war on terror prosecution]

It's the only case he cites

Hatch turns to Kavanaugh's time in the Bush White House and complains that Democrats want "every scrap of paper" from Kavanaugh's time there

What role if any did you play in developing or implementing the Bush administration torture and detention policies, Hatch asks.

Kavanaugh says he was not "read into" the program nor "crafting" the legal justifications for the program.

Kavanaugh directly rebuts the suggestion that he misled Durbin and other Judiciary Committee members during his first confirmation hearing for the DC Circuit

Cannot wait to hear Leahy and Durbin's response when they are up

So this isn't a trial, but there are a lot of trial tactics happening here. Hatch is rehabilitating the witness in Kavanaugh.

Kavanaugh insists he told the truth in his previous hearing

Hatch now brings up that 18 former women law clerks have written in to support Kavanaugh

Hatch asks why Kavanaugh thinks its important to encourage young women lawyers

Kavanaugh says he believes in equality

Kavanaugh cites his mother as an example. She was a prosecutor and state trial judge in Maryland

Super excited for the time when equality isn't couched on a man's personal relationship with a woman

Kavanaugh then cites a Greenhouse NYT piece on the lack of women law clerks at SCOTUS.

Kavanaugh said that made him think about what he could do about this problem

Oh one of the clerks Kavanaugh shouts out is Zina Bash who is in the audience and was likely flashing white supremacist hand signs for the cameras yesterday

Kavanaugh says he's proud of his record hiring women clerks

Hatch metaphorically slaps Kavanaugh on the back for this.

Then he pivots to Kozinski who left the 9th circuit because of harassment and abuse allegations. Kavanaugh clerked for Kozinski

Hatch says Kavanaugh critics are doing "guilt by association" linking Kavanaugh to Kozinski

Kavanaugh says he doesn't remember any email list where Kozinski sent inappropriate messages.

🤔🤔🤔

Kavanaugh says he knew nothing about the allegations against Kozinski until they became public.

Sure thing, Brent.

Kavanaugh takes the bold position to say that no woman should be subject to harassment in the workplace

Kavanaugh says women need better reporting tools on workplace harassment.

You know what also works? Class action lawsuits and not forcing these claims into mandatory arbitration

Hatch now wants to talk about the Chevron doctrine.

This is a line of precedent that directs the federal courts to defer to federal agency interpretation of the law if the law is ambiguous.

Conservatives are coming for Chevron. It might not survive this next SCOTUS term

Hatch has introduced legislation to undo Chevron FWIW

Kavanaugh says this is an issue of "liberty"

Kavanaugh continues on with liberty and the separation of powers and the idea that executive agencies are infringing on liberty by just existing

Kavanaugh says he's not a skeptic of regulation, just a skeptic of illegal regulation

Hatch now brings up the Sotomayor confirmation hearings

What a racist shit show those were

Now Leahy is up. Starts directly with whether or not Kavanaugh lied to him the first time around

It's already a tense exchange

Kavanaugh stands by his previous statements and said he didn't mislead the committee

Kavanaugh tries to filibuster and Leahy cuts him off

Leahy impeaching the hell out of Kavanaugh with Kavanaugh's previous testimony around Kavanaugh's time working on Bush judicial nominees

For context there was an information breach and the Bush White House got intel on what Democrats planned to ask Bush judicial nominees in session. The breach was unlawful. Kavanaugh was in the soup at this time

One of the nominees Kavanaugh handled was Pricilla Owen to the Fifth Circuit Court of Appeals.

She's like Alito, by way of reference on temperament and philosophy

One of Owen's notable opinions was dismissing a lawsuit brought by a high school cheerleader who didn't want to be forced to cheer for her rapist and was kicked off the squad

But back to Leahy and Kavanaugh.

Leahy has Kavanaugh read through an email chain. Turns out the emails were stolen by a Republican staffer

Leahy's questions to Kavanaugh about his exchanges with the Republican staffer who stole Dem emails suggests Leahy has the goods on Kavanaugh here.

This is solid prosecutorial questioning happening here

It is pretty apparent based on Leahy's questions that Kavanaugh was in possession of stolen emails that he used to shepherd Bush judicial nominees so that's something

Kavanaugh insists this is just how judicial nominations proceed

The tone of this exchange is very moderated but this is high Senate drama. Leahy is fully making the case for Kavanaugh as a liar and a thief

Leahy now asks Kavanaugh directly if he was ever asked about a mole to get information on strategy and information

Kavanaugh gives the shruggy guy as his response

Leahy asks if Kavanaugh ever got an email from a GOP staffer that references stolen materials.

Kavanaugh asks if Leahy has such an email

Leahy says ask Grassley

Folks my money is on that email existing and this is how Leahy just got around confidentiality

Grassley jumps in and gets real heated and insists that all the necessary documents are public.

Leahy just gave a master class here folks

Kavanaugh now jumps into the fray to say his testimony is 100% accurate on this point

That shuts Grassley up. Leahy not so much. Leahy says there is evidence to suggest Kavanaugh had stolen emails and new it, hints there's more proof in the committee confidential documents

This is a super fine line Leahy is walking here because the penalty for breaking confidentiality can be expulsion from the Senate

God I love good lawyering

Okay back to substantive coverage I just had to say that because that exchange was THE BEST

Kavanaugh is a visibly different witness after that exchange. Leahy shook him.

Leahy prepping a video for the hearing and Grassley says it better be fair

Before the video starts Leahy asks if Kavnaugh ever worked with John Yoo on warrantless surveillance

Kavanaugh responds by offering "context" and reiterating that he "wasn't read into that program"

Leahy repeats his question: While in the White House did you ever work with John Yoo on warantless surveillance

Kavanaugh says "after 9-11 it was all hands on deck"

That's a yes folks

Leahy says to Grassley it's not fair to Kavanaugh that he can't hand him documents that would refresh Kavnaugh's memory on his work on warrantless surveillance

Grassley stammers and says if Leahy identifies the documents he can probably see them but the rest of us suckers can't

Leahy responds by saying he wants the same things he asked for August 16th and they are directly relevant to all these questions, including emails with John Yoo

Grassley says Leahy can have them for tomorrow (maybe? that was a mumble and he is clearly not pleased)

Grassley now gavels Leahy out of time. Leahy objects and Grassley gives him another minute

Leahy asks Kavanaugh if Trump has the absolute power to pardon himself

Kavanaugh says dunno never thought about it

Leahy asks if the president has the power to pardon someone in exchange for a promise that person won't testify again them

Kavanaugh refuses to answer

Now it is Sen. Graham's turn.

He's going to do all he can to get Kavanaugh's stride and confidence back.

Asks Kavanaugh if he knew about stolen emails and suddenly Kavanaugh is able to answer yes and no questions

Graham notes that a Parkland parent is in the audience and gives Kavanaugh a chance to tell them about his job as a judge

Note Kavanaugh could have done that personally yesterday but chose to snub instead

Also. This is evidence of the GOP reading the Kavanaugh coverage and trying to take control of the narrative around the confirmation hearings

Kavanaugh insisting he understands the situation of homeless people because he regularly serves them meals

This is just gross tbh. If I was a Parkland parent I would be FUMING right now

Now Graham asks Kavnaugh to describe the difference between Kavanaugh the man and Kavanaugh the judge

Kavanaugh insists "the homeless" are "just as good" as the "rest of us"

Oh good grief now Kavanaugh referencing To Kill a Mockingbird

Second To Kill a Mockingbird reference from Kavanaugh, this time to pat himself on the back when he ruled that a single use of the N* word creates a racially hostile work environment

Motion for Senate Republicans to learn how to pronounce Justice Sotomayor's name properly

Protesters interrupting Graham and Kavanaugh now

Graham wants to ask Kavanaugh about statements former Clinton attorney Greg Craig said about Elena Kagan

Progressive women frighten Sen. Graham it is so open and apparent

The point Graham is making is that presidents appoint judges who share their philosophy. He's right.

He's also confirming Kavanaugh is the fifth vote to kill/gut Roe and upend most the New Deal

Graham using his time to subtweet the "undecided" Senate voters to say they need to suck it up and vote yes

Graham says within an hour of his nomination Kavanaugh became the single greatest threat to democracy by people who voted for Kagan and Sotomayor.

Folks, I got nothing to add to this point 🤷🏻‍♀️

I wish we could have a hearing where the nominees kids could show up, Graham says.

Kavanaugh's kids could have stayed. Should have stayed. It's democracy in action.

Graham asks the dumbest question yet which is "can you and four other judges just decide to overturn Roe v Wade"

The point he's making is that there needs to be litigation in the pipeline.

Update: There are at least 13 cases right now in that pipeline!

I take that back. Graham just asked Kavanaugh if he'd listen to both sides when hearing a challenge to Roe.

That's the dumbest question yet.

Graham asks Kavanugh where he was on 9-11

Kavanaugh telling his evacuation story

Notes his wife was President Bush's personal aid at the time

Graham asking about the extension of constitutional rights of Americans abroad

Kavanaugh agrees the constitution protects Americans from their own government when they are abroad

Graham just said there is no constitutional right to turn on your government and collaborate with the enemy and I don't think this line of questioning is going where he intends it to

Ends by asking Kavanaugh how he would like to be remembered

Good dad. Good judge. Good husband Feinstein offers up. Elicits a chuckle from the room

Grassley announces a break for lunch and a previously scheduled Senate vote. Should be about 30 min from the gavel

While we are on break a quick reminder that #TeamLegal will have more Kavanaugh coverage including another episode of Boom! Lawyered later today so stay tuned!

And we are back!

Sen Durbin up now and goes directly to Kavanaugh's experience with judicial nomination.

Wants to know if Kavanaugh was involved in the decision to assert executive privilege to withhold documents related to his nomination

Kavanaugh doesn't answer directly

Durbin notes "you're breaking new ground here, or I should say covering up old ground"

Durbin says the Senate is being asked to give Kavanaugh special treatment by the National Archives

Kavanaugh says dunno, man

Durbin isn't having it

"This is your area of expertise" Durbin says to Kavanaugh

Kavanaugh stammers and wants to know the question before him

Durbin wants Kavanaugh to bless or admonish the document retention/disclosure.

Durbin says nope, you could change this at any time.

Durbin was also hacked by the GOP staffer whose emails Kavanaugh had

We now know Kavanaugh has these emails because Durbin basically confirmed they exist in committee confidential just now by saying he can't fully question Kavanaugh about his role in the hacking because they aren't disclosed

Durbin asks Kavanaugh directly why he won't ask the hearings to pause so the documents can be disclosed

Kavanaugh says it's not his role to do so

Grassley now interrupts to try and redirect and give Kavanaugh cover tries to claim they are following the National Archives Act

*Presidental Records Act as disclosed by the National Archives

Sorry. Fast typed that

Grassley is real mad about Durbin's line of questioning and shouting his answer and claims that the GOP process is actually better and faster

I mean yeah of course it is faster to not turn anything over

Now Durbin goes directly to Kavanaugh's 2006 testimony before Judiciary Committee

Durbin says I'm sure you're prepared for this question

Durbin impeaching Kavanaugh with his previous judiciary committee testimony on his involvement with detention policy

Kavanaugh was involved in conversations with access to attorneys for detainees

This directly contradicts this previous testimony Durbin says

Kavanaugh says he understood the question back then and stands by his testimony

Durbin: That's not the question

Kavanaugh: I told the truth

Durbin pivots to the role Kavanaugh played in the Bush signing statement on the Detainee Treatment Act which basically allowed Bush to keep torturing away

Kavanaugh stammers an answer that is basically "I did a lot of things"

Durbin pivots to Kavanaugh's dissent in Garza v. Hargan and Kavanaugh's use of "abortion on demand"

Durbin laying out all the legal hurdles the undocumented minor in Garza cleared before asking Kavanaugh why he'd block that legal process

Do you believe this is "abortion on demand" Durbin asks directly

Kavanaugh again offers a narrative answer instead of yes or no

Note: Rochelle Garza, one of the attorneys helping the minor [and others] access care is a scheduled witness against Kavanaugh

Kavanaugh gives a long answer about how because she's a minor it's different

Durbin says yes and this patients already had a lawful judicial bypass so at this point it's not

This is a smart line of questioning to unpack Kavanaugh in Garza

Durbin notes that Kavanaugh's opinion would have added a different and additional restriction here -- in Doe's case an immigration sponsor in addition to obtaining a judicial bypass

Kavanaugh refuses to acknowledge that the judicial bypass process is exactly that 'consultation' process the law says minors benefit from.

That's the point of judicial bypass and and Kavanugh is intentionally erasing this fact

Durbin pivots to agricultural work and undocumented immigrant labor and Kavanaugh's dissent that said these folks shouldn't be able to unionize because they don't qualify as employees based on their immigration status

Kavanaugh insists his dissent is grounded in Supreme Court precedent even though there's nothing in the NRLB that prevents undocumented workers from organizing

Durbin responds with "not quite" and notes all other judges who looked at that question followed SCOTUS precedent and came to the exact opposite conclusion

Now Sen Cornyn is up and starts by scolding the Democrats for making Republicans show up for Senate votes today I guess

And now we are talking about school prayer but Cornyn isn't asking Kavanaugh's opinion on it because why would we at something like a confirmation hearing

Cornyn now going into the idea of the government showing evidence of hostility against religion which is the next line of cases to come from Masterpiece Cakeshop

Cornyn is doing something very specific here though

Cornyn monologues on anti-christian bias in government in the form of "shared experiences" from past cases but then insists he won't ask Kavanaugh about his view but is basically showing they are of the same mind on these issues

Cornyn now giving Kavanaugh an open mic to ramble on about precedent

Nothing of substance is happening here this is all about giving Kavanaugh some space to recover from Durbin

Kavanaugh now explaining how cases go from the trial court to the court of appeals and maybe then the Supreme Court

This is the kind of Schoolhouse Rock that Sen. Sasse says we need more of I guess

More protesters interrupting Kavanaugh now

Cornyn pauses and then asks Kavanaugh to tell him about 9-11 because I guess he missed it when Graham had him do the same exact thing

I've had a lot of coffee and I love these kinds of things and Kavanaugh is even putting me to sleep right now

Cornyn is still talking I guess

Protesters interrupt Kavanaugh's answer on ... precedent... and calling on Congress to change the law. Honestly I lost track because the whole hearing just kind of went Charlie Brown teacher voice to me

Kavanaugh says writing legislation is hard

Getting to the bottom of the important issues at the moment

In all this droning on Kavanaugh says its not the court's job to re-write the constitution which is a big old hello to conservatives who don't believe in a constitutional right to privacy

Cornyn signaling to natural law here and Kavanaugh is willing to jump right in and go along with it

Gorsuch also loves him some natural law

Cornyn asks another precedent question and the Supreme Court overruling itself. Cites Plessy v. Ferguson which anti-abortion folks love to cite for overturning Roe

Kavanaugh takes the courageous position and says that Plessy was wrongly decided.

Kavanaugh is talking all about Brown v. Board of Education when what Cornyn is asking him about is Roe v. Wade

Kavanaugh says the Court in Brown made the right call even though they knew they would face public backlash

Is this signaling he DNGAF about public outcry over a Roe reversal? 🤔

Now it is Sen. Whitehouse's turn

His first question is would you uphold a statute that prevents insurance companies from discriminating on the basis of pre-existing conditions

Whitehouse wants a yes or no answer Kavanaugh offers to "enhance" it

Whitehouse cuts off Kavanaugh's filibuster here and notes he's said all this before

But I think it's really important, Kavanaugh says

Whitehouse moves to executive privilege

Notes that as a privilege it needs to be asserted

Kavanaugh stammers

Who asserts executive privilege, Whitehouse asks

That's a complicated question, Kavanaugh responds

Whitehouse now wants to talk about the role of The Federalist Society in picking Kavanaugh

Kavanaugh says he got a call about his potential nomination the day Kennedy announced his retirement

Kavanaugh says Trump made the decision to nominate him not The Federalist Society

But the lawyers in the Trump administration are all members of the Federalist Society Kavanaugh says

So basically this is a yes?

Kavanaugh confirms Pence was involved in the nomination process

Whitehouse pivots to the Judicial Crisis Network which is a conservative advocacy dark money group that pushes right wing judges

sorry stepped away to get a snack

We're still talking about dark money in politics and the courts

Generally speaking, Kavanaugh is pro-dark money

Now Whitehouse is asking about the Pacific Legal Foundation [and by proxy other right wing litigation mills like Alliance Defending Freedom]

My snack!

Apples and peanut butter

Now back to the Pacific Legal Foundation and related litigation mills

tl;dr they are terrible

Whitehouse is explaining how these litigation mills go out and plaintiff shop and intentionally *lose* cases so they can appeal and run up to a conservative SCOTUS

Ex A: Alito did this with what would ultimately become the union busting Janus case

Whitehouse says this strikes him as "faux-litigation"

He's not wrong

Kavanaugh says he's not familiar with this phenomenon 🤷🏻‍♀️

Whitehouse notes that under the Roberts Court at least 80 cases have been decided along partisan lines

The signaling on this is not good, Whitehouse says

Whitehouse connecting all the dots on the conservative corporate capture of the federal judiciary

Protester just interrupts to call Kavanaugh a political hack

Okay now Senator Lee is up so brace for 30 minutes of .... not much

I think Lee asked Kavanaugh if he was involved in picking himself as the nominee

Quick programming note. I need to peel away from hearing coverage in about 10 minutes to do a thing but I'll jump back in as soon as it's done I promise

Lee is still talking and just made a joke about 8 hour oral arguments and sir nothing about that is funny

Okay I'm back but Judiciary is on break 🤷🏻‍♀️

Kavanaugh hearings gaveled back in order and Klobuchar is up

Asks Kavanaugh about the documents withheld from his time as White House Staff Secretary

Klobuchar asking Kavanaugh about what "dastardly" crimes would subject a president legal liability

The real question is what constitutes an impeachable offense and Kavanaugh says that's a question for Congress

Klobuchar asks Kavanaugh if its opinion as evidence in his *legal* opinions if the president can still push to enforce laws even if the courts have declared them unconstitutional

These are questions of prosecutorial discretion

Klobuchar connects this to the DoJ taking the position that the pre-existing ban in the ACA is no longer good law thanks to the tax bill

Klobuchar moves to Kavanaugh's dissent that would have found the CFPB unconstitutional

That's Consumer Finance Protection Bureau

Klobuchar asks Kavanaugh if he thinks other independent agencies are constitutionally suspect

Kavanaugh says well we have precedent and I respect that

Kavanaugh is hedging here but an important point is that he would like to have these agency positions removable at will [rather than for cause]

IE he wants to make these agencies explicitly partisan

Klobuchar right now:

I see your Federalist Papers cite and raise you one

Klobuchar pivots to Net Neutrality

Spoiler: Kavanaugh is against it

Klobuchar is doing a very good job of making the case that Kavanaugh is broadly anti-agency

That means he's anti-precedent here too fwiw

Now Klobuchar asks Kavanaugh about the constitutionality of campaign contributions

Kavanaugh trying to paint himself as moderate on this issue

Klobuchar notes that his opinion left open the possibility of unlimited foreign contributions on *issues*

*cough NRA RUSSIA cough*

Next topic: anti-trust

SCOTUS has made it harder to enforce anti-trust laws. This comes at a time of industry consolidation.

Klobuchar lists the Kavanaugh cases that would make this problem worse

Basically under Kavanaugh's legal thinking mergers would be easier ie markets would be made less competitive

Did you ever study the Guilded Age? The Robber Barons? That's what we're talking about here

This anti-trust line of questioning is really dry but super important in highlighting just how far to the right Kavanaugh is on issues of corporate power broadly.

Senator Cruz up next

*deep sigh*

Let's start with a general question, says Cruz

What makes a good judge

Kavanaugh goes back to independence because you know we've gone down this path at least three times now

Cruz mentions the 'overheated rhetoric' from the protesters and says he wants to talk about Merrick Garland's record

Cruz says Kavanaugh voted with Garland 93% of the time

Yeah but that 7%? Cases like Garza v Hargan

which brings us back to the "overheated rhetoric" of the protesters and Senate Democrats amirite

How would you describe a judicial activist, Cruz asks

Kavanaugh says that's someone who lets their personal political preference dictate their decisions

snack update:

kale chips

I'm pretty sure the question to Kavanaugh is what is liberty even, man

Again I am re-upping my request for a protester to figure out how to show up in Beto O'Rourke cosplay and skateboard past Kavanaugh when Cruz questions him

Can you share with the committee why federalism matters

That was a quote from Cruz just now I swear

Federalism operates in a laboratory of democracy. In this paper I will......

One important aspect of federalism conservatives don't talk about is the idea that your constitutional rights don't depend on what state you happen to reside.

So... voting rights. Abortion. Just spitballing here but these seem like important federalism questions

oooooh substantive due process! I love substantive due process! Too bad SCOTUS has largely rendered substantive due process meaningless 🤷🏻‍♀️

Just a side note that the idea these hearings are for the American people and Kavanaugh [and most of the Senators] spend most the time speaking in constitutional code is... a disconnect

Substantive due process would put teeth into the promises of non-discrimination in public education, for example.

Procedural due process means we all get the same process/treatment from the government.

Substantive tells us what those rights look like actualized in policy

Cruz now moves to the First Amendment

Kavanaugh comes out as being in favor of protecting speech

Cruz looks like his own line of questioning is putting him to sleep

Now asks Kavanaugh how the constitution protects religious liberty

Kavanaugh comes out against religious litmus tests for holding office

Kavanaugh says protecting conscience is as important as protecting speech

Whistles to Trinity Lutheran decision where the Roberts Court opened the doors for direct government funding of religious institutions

Sounds like these last protesters are interrupting to draw attention to the risk Kavanaugh poses to disability rights

Kavanaugh pivots to crosses being knocked off public spaces in other countries

How would you describe the interaction between the Establishment Clause and Free Exercise Clause

This is actually an interesting question

Kavanaugh says you're equally American no matter what religion you are or if you have no religion

As a general matter Kavanaugh thinks the two clauses work together to support freedom of religion

This is the Schoolhouse Rock civics lesson Sen. Sasse keeps talking about right?

Kavanaugh's answer was basically "I think the First Amendment is the First Amendment"

Cruz just slapped Kavanaugh on the back for doing pro bono work "for the little guy"

Do you consider yourself a Republican judge, Cruz asks

Kavanaugh says he doesn't participate in political activity

Cruz closes by asking what he's learned coaching his daughter's basketball team

I mean

I love sports! I've even coached. But I would not waste the Senate Judiciary Committee's time talking about those two things if I was up for a Supreme Court seat and there were real issues on the line

Sen Coons up now and he wants to talk about executive power and prolly Trump

Can the president fire the special counsel is the basis of Coons question

Do you still believe a president can fire at will a prosecutor who is investigating him?

Kavanaugh declines to answer because it might come before him on the court

Coons asking Kavanaugh to stand by his record that says a president can fire prosecutors investigating them at will

Kavanaugh: that was my view in 1998

Kavanaugh should be disqualified for using the phrase "goo goo Watergate reform" frankly

Kavanaugh tries to tie his views on executive power to Kagan

Coons says his citation is factually correct but misleading in context

IOW Coons just called bullshit

Coons holding tight and pressing Kavanaugh on whether or not he thinks the president can fire the special counsel

Kavanaugh is uncomfortable but still maintaining a filibuster

Coons wants to know if the prosecutor is fireable at will or for cause

Remember in earlier testimony about Kavanaugh's dissent in the CFPB case? The one that would make agency heads fireable at will ....

We can extrapolate from there

Coons pressing Kavanaugh on precedent and the difference between Kavanaugh saying something is 'settled' versus 'rightly decided'

Remember there are Trump nominees not willing to say Brown v Board of Ed. was rightly decided. Kavanaugh has at least distinguished himself here

Coons remains singularly focused on the power of the president to fire the special counsel

Coons also sporting a fierce 'bitch please' face atm

Coons has spent the last 30 minutes showing that Kavanaugh is widely in favor of shielding the executive from investigations and prosecutions

Coons tells Kavanaugh that he's gone out of his way to create a constitutional question in cases when one is not there

Oh man the chances we get a special counsel firing case seems basically guaranteed listening to Coons and Kavanaugh

Coons impeaching Kavnaugh with his own American Spectator article where he says presidents and his associates shouldn't be criminally investigated [per Coons]

Coons asks what about if a presidential aid committed an act of domestic violence ......

Kavanaugh is pissed about Coons and his line of questioning and wants the last word

Grassley gives it to him and then jumps in to help rehabilitate the witness

Coons jump in to ask if he can submit committee confidential docs in the record and Grassley stammers an okay

Oh blerg now it is Sasse

He returns to the theme of hysterical protesters

Sasse asks a broad question on executive power and hands the floor to Kavanaugh to monologue

We have so many Senators left who need to question Kavanaugh 🙃

Sasse interrupts Kavanaugh to "unpack" his answer

Going to walk through the difference between civil and criminal charges

Sasse offers up a hypothetical where the president gets busted for drunk driving and asks Kavanaugh if they were immune

Kavanaugh says no the question is whether the charges can and should be deferred to when the president is out of office

Kavanaugh now listing all the wars that have been Congressionally authorized

Ohh oohhh here's where Sasse talks about Schoolhouse Rock again

Sasse opining on civility in government and says we don't talk enough in common about how the three branches of government can be limited

I mean I'm spitballing here but maybe that's because we don't all think in common on this issue?

Sasse just said president was a 'nounified term'

is that like a gerund? What is he even talking about here?

Sorry I just got distracted because apparently @AngryBlackLady is apparently on a flight with my doppelgänger and I HAVE QUESTIONS

Sasse teasing that he's almost out of time but yet he keeps talking

Bless my friends who will see me this weekend after a week of being quarantined to Kavanaugh coverage 🙃🙃🙃

Sasse asks Kavanaugh what it means to have a swing seat on the Court and if he's being nominated to be a swing vote

I don't think this question will play how Sasse tried to set it up

The fact that Sasse hasn't made a Huskers joke yet is some admirable restraint

Sasse made a comment about Grassley's little gavel and I legit snorted because I am also 12

Quick ten minute break thanks to Grassley's little gavel

Wow a beer would be great right about now

And we're back! Sen. Blumenthal is up and cuts right to the chase and says it is unprecedented to have a SCOTUS nominee appointed by an unindicted co-conspirator

Will you recuse yourself, Blumenthal asks

Kavanaugh doesn't answer directly, starts in on a monologue of the independence of judiciary

Blumenthal says I will take this answer as a no

Blumenthal moves to Jane Doe and Garza v. Hagan

Blumenthal is not playing today y'all

Blumenthal laying out the facts of Doe's case including her history of violence and exploitation and isolation by ORR from other detained youth once she asked to have an abortion

Blumenthal notes that one result of the fight at the DC Circuit is that it forced Doe to continue a pregnancy much longer than she was legally required to. And that is a real health risk.

Blumenthal pivots to Trumps Mary 2016 list of SCOTUS nominees. Kavanaugh's name was not on that.

Nov. 2017 another list. Kavanaugh's name was on that list.

Blumenthal: Trump said he would nominate a justice to overturn Roe

October 2017: Kavanaugh's decision in Garza v Hargan

Kavanaugh said he didn't seek out the Garza case [as in to get on the SCOTUS list]

So what changed, Blumenthal asks

Kavanaugh says a lot of things happened in between

Kavanaugh says that colleagues thought he should be considered and I guess launched a campaign to get him on this list.

Blumenthal notes that in that support those supporters cite his dissent in Garza

Blumenthal notes in that dissent Kavanaugh used "abortion on demand" three times. This is anti-choice rhetoric that directly goes to the heart.

Also notes that he refers to Roe as "existing Supreme Court precedent" as though to suggest a qualifier

This is like you introducing someone as your "current wife"

It doesn't sound like they'll be around for very long Blumenthal says

Also makes a very important point here. Kavanaugh's dissent states that he accepts for the purposes of the case that Doe has a constitutional right to an abortion.

Other conservatives have argued that undocumented minors in government custody do not have this right

Kavanaugh says he's not familiar with the "code word" of abortion on demand

Kavanaugh keeps going back to parental consent laws for cover in Doe

Reminder: Doe had already gone through a court approved judicial bypass proceeding. That is the legal equivalent of parental consent for her.

Blumenthal asks Kavanaugh if while in the White House he promoted the belief that Roe is not settled law among legal scholars

Kavanaugh basically confirms this

Kavanaugh going to Casey and the fact that it affirmed Roe but also upheld Pennsylvania abortion restrictions

This is a guarantee he'll uphold any restriction under Casey and call it upholding precedent

Would you commit to saying you would not overturn Roe v Wade Blumenthal asks directly

Kavanaugh declines to answer, saying none of the other justices answered that question

Blumenthal flat out says Kavanaugh's dissent in Garza was to send a signal to the Trump administration that he should be on the SCOTUS list

Blumenthal pivots to the lawsuit challenging the pre-existing conditions ban in the ACA launched by conservative states [arguments next week good god it never stops!]

Can the president refuse to enforce the ACA even though the SCOTUS has upheld the statute he asks?

Kavanaugh doesn't answer directly vol 384756

Kavanaugh wants this to be a question of prosecutorial discretion and Blumenthal says nope that's not how it works.

Now Blumenthal wants to talk about gun violence

Asks about assault weapons being in common use

"The reason some weapons are not in common use is because they are banned" referring to the expired assault weapons ban

Kavanaugh thinks if a weapon is in common use it cannot be regulated [mostly] under the Second Amendment

So Blumenthal's point is that by refusing to regulate assault weapons Congress has de-facto given those weapons Second Amendment protections which is not very originalist when you think about it

Sen Flake up now but Grassley wants to rehabilitate Kavanaugh on his position on the Affordable Care Act first

Flake asks Kavanaugh who his judicial heroes are

My mom, Kavanaugh says

Justice Kennedy as a model of independence

Also Justice Scalia

Rehnquist and Jackson too

no surprises here folks

Also cites Thurgood Marshall and the work he did to overturn Plessy v Ferguson

Again, this is a common anti-choice whistle on Roe too

Sen Flake it has already been a very long day so bringing some life or charisma to your questions would help a lot. Thank you.

Flake asks Kavanaugh what constraints on executive power exist

Kavanaugh lists appropriations power, Senate advise and consent power, and impeachment power

Kavanaugh now listing statutory limitations

This is like Day One of an executive power undergrad seminar

I can't promise I won't open a beer soon

Kavanaugh can't promise he won't greenlight Trump bullying independent agencies either

Kavanaugh cites Roberts as a fierce defender of an independent judiciary.

Yup gonna grab that beer

Flake now moves on to agency power

Reminder: Kavanaugh doesn't like it

Agencies have power to act and the courts are to defer if there's ambiguity

How do you know if something is ambiguous Flake asks

Kavanaugh suggests that if people disagree it's because something is ambiguous and so we need objective standards

This is a lot of high level word salad that is really about the fact that conservatives don't like agency regulation writ large and are reverse engineering attacks on it

snack update:

sliced tomatos with salt and pepper

Senator Hirono up now and offers up letters of opposition to Kavanaugh and starts right in and asks Kavanaugh if he's ever sexually abused or harassed anyone

Kavanaugh says no

Hirono brings up Alex Kozinski and the really terrible allegations that caused him to resign

Kozinski's resignation effectively shut down the investigation against him.

I don't think this was a coincidence, Hirono says

Kozinski had an email list that he would send out vulgar jokes etc.. and Kavanaugh has said he doesn't remember anything like that

Wonder what is in the committee confidential docs though

If a judge was aware that another judge was engaging in sexual abuse or harassment do they have a duty to report it, Kavanaugh asks

Kavnauagh said if he knew about Kozinski he would have reported it up

This conversation about sexual harassment and women are good but the gendered nature erases harassment based on sexual orientation/gender identity

Hirono asks Kavanaugh if he knew about the domestic abuse allegations against Rob Porter before he recommended him for a Trump job

Kavanaugh says he didn't really recommend Porter, didn't know about the allegations

Hirono has had an absolutely stunning series of questions taking Kavanaugh to task for an op-ed he wrote suggesting native Hawaiians aren't really indigenous

Hirono pivots to Garza

We all recognize that even if Roe isn't overturned there will be laws that attempt to limit a right to abortion, Hirono says

You turned this case into a parental consent case, which it wasn't Hirono says

HIrono asks Kavanaugh directly if he thinks undocumented minors have a constitutional right to an abortion

Kavanaugh doesn't answer directly

Kavanaugh says as a general proposition persons in the United States have constitutional rights

He looked pained to acknowledge that fact

Hirono now making the case for Kavanaugh as a partisan judge introducing study after study of Kavanaugh's opinions and voting habits naming Kavanaugh as a hard right conservative

Sen Crapo up next.

Also programming note I gotta jump out again real quick but will be back! Probably with a beer

It's fine you're not missing anything with Crapo at the moment

Still not missing anything with Crapo's line of questioning. He had Kavanaugh explain the federal courts of appeals, mostly

Looks like I came back just in time to Crapo to say that because Kavanaugh ruled in favor of Black secretaries one time he's not a racist? Did I catch that right?

25 minute break then Sen Booker up

Real quick. A lot of folks have said very nice things about my coverage of the hearings and I haven't had a chance to acknowledge them but THANK YOU! I appreciate you all and am glad you're finding the coverage useful

I'm trying to make the hearings both easy to understand and bring a little levity. This is arguably one of the most important Court appointments in decades and folks need a way to follow along. I'm glad some of you have been able to do so 🔥

And we’re back!

Sen Booker starts in on questioning Kavanaugh on past statements that racial discrimination will be done sometime around 2018

Kavanaugh says this was aspirational

Booker says that's nice but what was hopeful about the direction of racial equality in the late 90's

The point of Kavanaugh's 'one race' comment is along the lines of Roberts 'post racial' America

Booker pressing Kavanaugh on whether he views race conscious policies to be racial entitlements ala Scalia

Kavanaugh won't say whether he agrees or disagrees on Scalia on this point

Kavanaugh keeps wanting to talk about the case law but Booker is pushing him to talk about his personal views

Booker takes a third tactic to try and get Kavanaugh to say if he sees affirmative action [more or less that's what this line of questioning in about] as racial entitlements

Booker asks Kavanaugh if the SCOTUS cases upholding race-conscious policies are rightly decided

Kavanaugh won't answer

Booker asks Kavanaugh directly if he thinks having a diverse student body is a compelling government interest.

Kavanaugh doesn't answer directly

Kavanaugh had previously called government efforts to promote diversity and other efforts to remedy racial discrimination as "naked racial set asides"

Booker asks if he still stands by those statements

Kavanaugh said I hired diverse clerks

Booker pivots to Kavanaugh's views of racial profiling by police

Kavanaugh has gone on record as thinking racial profiling for the cops is okay in some circumstances

Kavanaugh is disputing this characterization by Booker but Booker isn't letting it go

Booker says Kavanaugh is willing to use race in context of heightened policing but not in instances of remedying historic and systemic discrimination

Booker now addressing voting rights which he calls the "crown jewel" of the civil rights movement

Booker pushing Kavanaugh on voter ID laws and his opinion that would have signed off on South Carolina's Voter ID law despite real evidence of the law's discriminator purpose and effect

Booker hitting peak Booker with the spechifying he's doing here

lawyers talk a lot

Ripley going to town on a squeaky ball is adding the right amount of context to Kavanaugh's ongoing testimony

I thought what could I do, said Kavanaugh

*SQUEEK SQUEEK SQUEEK*

Kavanaugh returns to the fact that he's hired diverse clerks as evidence that he won't strike race conscious policies

And now for some reason Sen Lee is speaking

There's a fight about committee confidential documents happening right now and I'm just saying if it were the Dems keeping these documents secret the Republicans would just go ahead and leak them 🤔

Sen Kennedy up now and honestly can someone prove to me he's not somehow a McConnell cousin or something?

Sen Kennedy doesn't understand procedure and is often confused on the law so we will probably hear about how the government is mean to christians and that Kavanaugh coaches youth sports

We're back to ambiguity word salad

Kennedy wants to talk about originalism and the Second Amendment and Heller so here's where they explain that yes the founders would have been totes cool with unregulated assault weapons

Related my second-grader had a lockdown today. The first of the school year.

Now we're talking about cameras in the Supreme Court

I am pro if only because I could cover hearings in yoga pants

Kidding I am pro because everyone should see the Court in action.

But also yoga pants

Now is probably time to come clean and admit I've definitely worn a Prana dress to arguments

Kennedy asks Kavanaugh if he agrees that every state has a constitution

Gripping, probing line of questioning here

Kennedy asking Kavanugh if he agrees that state constitutions can provide BROADER constitutional protections than the federal.

They can! Some states have their own abortion protections recognized in their constitutions but I don't think this is what Kennedy is referring to

Oh wait here we go Kennedy wants to talk about Twitter censoring conservatives

lolol can you believe we're still not done tonight and we've got another full day tomorrow 🙃

Why on earth is Kennedy still talking?

I mean I know the answer to that question I'm just asking for posterity

Kennedy now asking about nationwide injunctions. Like the ones issued to block Section 1557 of the ACA

Again, I don't think this is where Kennedy is going but should be noted

More likely Kennedy is mad about nationwide injunctions blocking things like Trump's Muslim Ban or his order blocking transgender troops in the military

Kennedy's last question won't be about Title IX or sexual assault he says

Errm okay cool

Kennedy asks if a city privatizes their entire police force do they need to comply with the constitution

That's an interesting question, says Kavanaugh

Senator Harris up and asks immediately if Kavanaugh has discussed the Mueller investigation with anyone

Kavanaugh says well it's in the news

Harris drills down what about with anyone from Trump's lawyer's law firm?

Kavanaugh gets real nervous and asks if she has something

Harris asks a yes or no question and Kavanaugh wants to know if she's referencing a specific person

Harris has an email I'm sure of it

I think you're thinking of someone and you don't want to tell us, Harris says

Lee jumps in to raise an objection

Harris is here for it

Lee says law firms have lots of people! Lots of lawyers even!

Law firms are like rabbits, they spawn new firms Lee says

Harris for sure knows what she is doing here and Lee is going to try and derail her

Note: Lee is not Kavanaugh's counsel here

Whitehouse now chimes in to note that Democrats haven't been able to make points of order so Lee can't do it either here

Harris returns to her question

Have you had any conversations ever about Bob Mueller and his investigation Harris presses

Kavanaugh again says he needs a list of employees to answer her question

Harris says Kavanaugh doesn't need a list to know if he talked to anyone about the investigation

I'll move on, says Harris

Clearly you're not going to answer the question

Pivots to white supremacy

Asks Kavanaugh if he, like Trump, thinks there was "blame on both sides" wrt Charlottesville

Kavanaugh doesn't answer

Harris asks Kavanugh if he thinks the contraception privacy were correctly decided?

Kavanaugh doesn't answer

The sexual privacy cases are key in recognizing LGBTQ rights

Kavanaugh still won't say they are correctly decided

Harris tells Kavanaugh that even Alito said those cases were correctly decided

Kavanaugh said he agrees with Alito but won't actually say the words "they were correctly decided"

Harris asks Kavanaugh if he thinks privacy rights include the right to an abortion

Kavanaugh says he can't answer because it could come before the Court

Harris brings up Kavanaugh's past praise of Rehnquist's dissent in Roe and says, well actually Brett you can answer

Kavanaugh still refuses

Can you think of any laws that give the government the power to make decisions about the male body, Harris asks

Kavanaugh says he can't name any

Harris asks Kavanaugh as a factual matter whether 5 SCOTUS justices can overturn precedent

Kavanaugh cites Brown v Board so yes

Harris turns to voter suppression

Asks Kavanaugh if he is aware of North Carolina's efforts to rush through Voter ID in the aftermath of Shelby County

Kavanaugh gives a long answer to: yes

Unrelated a club sandwich right now would be pretty great

Harris asking whether or not Kavanaugh thinks Section 2 of the Voting Rights Act is constitutional

Kavanaugh says well I don't have a basis for saying right now that it is unconstitutional, basically

Harris then asks Kavanaugh the basis for his statements that Trump vetted Kavanaugh more than any supreme court nominee than any other president

Now it's Sen. Tillis who reminds us all we've been doing this all over over 12 hours

Lol *for over 12 hours

Tillis scolds Senate Democrats for referring to committee confidential documents

Then says he's going to monologue on Kozinski

Tillis is subtweeting Hirono here

Like. If Tillis is just going to pontificate can we call the hearing

And now I think he's going to talk about Franken

Tillis is very concerned about the double standards at play wrt #MeToo it sounds like

Tillis now listing all the Kavanaugh decisions he doesn't like

Tillis is wrapping up the hearing. Tomorrow is another full day starting at 9:30 ET for 20 min rounds of questions.

That's a wrap on my coverage tonight folks! Here's me and @AngryBlackLady with some highlights from today's rounds of questioning

rewire.news/multimedia/pod…

@AngryBlackLady I'll be back for all your live-tweeting needs [and snack suggestions!] and Imani and I will have more podcast coverage too so stay tuned!

Thanks for following along folks.