After A Week Of Public Hearings, Judge Brett Kavanaugh Seems Poised For Supreme Court

Sep 7, 2018
Originally published on September 7, 2018 7:58 pm
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ARI SHAPIRO, HOST:

It's been a long week for Supreme Court nominee Brett Kavanaugh. In days of testimony, he was met with interruptions by protesters and frustration by Democratic senators all charging that the Republicans who control the Senate Judiciary Committee were withholding documents and preventing them from thoroughly vetting the judge. In a few moments, we'll hear a response to that from Republican Senator Roy Blunt of Missouri.

First, NPR legal affairs correspondent Nina Totenberg joins us to discuss what we have learned about Kavanaugh through this process. Hi, Nina.

NINA TOTENBERG, BYLINE: Hi, Ari.

SHAPIRO: So when you look at this week of hearings overall, what are some things that jump out to you?

TOTENBERG: Well, the first is the whole discussion of presidential power that came up repeatedly, the concern about abuse of presidential power and of course, in that context, President Trump's legal troubles. Take a listen to this exchange between Kavanaugh and Democratic Senator Patrick Leahy.

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PATRICK LEAHY: Trump claims he has an absolute right to pardon himself. Does he?

BRETT KAVANAUGH: The question of self-pardons is something I have never analyzed. It's a question that I have not written about. It's a question, therefore, that's a hypothetical question that I can't begin to answer in this context as a sitting judge and as a nominee.

TOTENBERG: And that was pretty much the answer that Kavanaugh gave to every question that sought to explore what he might think are the limits of executive power. It didn't matter whether it was in the context of criminal investigation or the president's ability to fire independent federal officers at will. At the end of the day, you didn't know a lot more afterwards than you did going into the hearing.

SHAPIRO: We knew that abortion would be a big deal in this confirmation hearing, and it was. Were his answers any different from what you expected to hear?

TOTENBERG: Well, I thought he emphasized the importance of the Supreme Court's past decisions a little more than Neil Gorsuch did at his confirmation hearing last year. For example, Kavanaugh called the Supreme Court's abortion decisions precedent on precedent. And he noted that the court had reaffirmed Roe v. Wade more than three dozen times and, importantly, in the context of whether it should be overruled. The Democratic senators said, well, we got similar assurances last year from Neil Gorsuch. And once he was confirmed, he voted very differently. And here's Kavanaugh's answer to Senator Amy Klobuchar on that.

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KAVANAUGH: It's important as a matter of independence as reflected in the nominee precedent not to give a forecast or hint about that. And part of that is giving a thumbs-up or thumbs-down on those precedents that could be involved in that.

SHAPIRO: Nina, every day this week you have come on this program and talked about fights over documents with Democrats demanding more. Republicans said they've handed over plenty. Did the Democrats get any traction with their argument the Republicans were hiding millions of documents?

TOTENBERG: Well, I think they finally did basically by releasing some of the documents labeled committee confidential and doing it without the explicit permission of the Republicans. One of the documents, for instance, related to abortion. And it showed Kavanaugh editing someone else's op-ed piece while he was in the White House and correcting the author, who had opined that all constitutional scholars agree that Roe v. Wade is settled law. And Kavanaugh said essentially to the author that that was an overstatement. They don't all agree.

And the Democrats seemed to think that contradicted his testimony. I think that's a bit of a stretch, but it got people's attention. And the fact that some of these documents were forced out gave the Democrats the chance to point out that they still had not seen more than 90 percent of Kavanaugh's White House documents from the Bush White House. And just having the fight probably energized the Democratic base.

SHAPIRO: But of course Kavanaugh doesn't need Democratic support for confirmation. He only needs 51 votes, which Republicans can provide. How did Republicans treat these hearings?

TOTENBERG: Largely by treading water nicely. They tried to show Kavanaugh as a good dad, a great husband, a mentor, a nice guy, a basketball coach for his daughters' teams, who - the teams showed up at the hearing room - that kind of thing.

SHAPIRO: NPR's Nina Totenberg, thanks for your coverage this week.

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