Kavanaugh Faces Questions On Abortion, Guns And Presidential Power During Hearings

Sep 5, 2018
Originally published on September 5, 2018 6:18 pm
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ARI SHAPIRO, HOST:

Guns, abortion, the scope of presidential power - all issues being put to Supreme Court nominee Brett Kavanaugh today. This is the second day of his confirmation hearings and the first chance for senators on the judiciary committee to question him in public. In a moment, we'll hear from one of those senators.

First, NPR legal affairs correspondent Nina Totenberg joins us to walk through some of the nominee's responses today. Hi, Nina.

NINA TOTENBERG, BYLINE: Hi.

SHAPIRO: Let's begin with guns. Kavanaugh has a reputation as being a very pro-gun rights judge. How was he pressed on that today?

TOTENBERG: Well, as a judge, Kavanaugh has staked out a starkly different position from most lower court judges on gun rights, disagreeing even with fellow conservatives. Most notably, he dissented when his court upheld a District of Columbia statute banning assault weapons and ammunition magazines of more than 10 bullets.

Today, questioned by Senator Dianne Feinstein, he maintained that under the Constitution and Supreme Court precedent, only unusual weapons can be regulated. And semi-automatic assault rifles are not unusual. They're in common use. Let's take a listen to the exchange.

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DIANNE FEINSTEIN: You're saying the numbers determine common use.

BRETT KAVANAUGH: They're widely possessed in the United States, Senator.

SHAPIRO: Beyond guns, he was also asked about abortion, and we know President Trump promised to name someone to the court who would overturn Roe v. Wade. What did Kavanaugh have to say about abortion today?

TOTENBERG: Kavanaugh said nobody had asked him to make any promises when he was being considered for the court. And he said, as others have before him, that the Supreme Court's Roe v. Wade decision is, in his view, established Supreme Court precedent and more.

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KAVANAUGH: One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and, most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

TOTENBERG: The Casey decision specifically upheld Roe as binding precedent.

(SOUNDBITE OF ARCHIVED RECORDING)

KAVANAUGH: That makes Casey a precedent on precedent.

SHAPIRO: So did we learn anything that might telegraph Kavanaugh's views on how he might rule and whether he would live up to President Trump's promise to overturn Roe?

TOTENBERG: We didn't really learn a huge amount. After all, the Supreme Court is always free to reverse its past precedents. And even if it doesn't reverse Roe, it can nibble it to death, so that it could for instance uphold anti-abortion laws that exist in lots of states, making access to abortion for all practical purposes impossible in those states.

SHAPIRO: Has Kavanaugh ruled in a case involving abortion?

TOTENBERG: Really only one, and it was the focus of Senator Durbin's questioning today. The case involved a 17-year-old pregnant girl who crossed the border illegally, was detained in Texas and wanted an abortion. She jumped through all the legal hoops. She went to a judge who ruled that she was mature enough to make the decision. Pursuant to Texas law, she got an ultrasound. She was also required by federal authorities to get counseling from an anti-abortion crisis counselor. And she still wanted the abortion when she was 15 weeks pregnant. The D.C. Court of Appeals ruled that the Trump administration had to release her to get the abortion, which was being paid for by a third-party organization, and Kavanaugh dissented.

(SOUNDBITE OF ARCHIVED RECORDING)

KAVANAUGH: The government argued that it was proper or appropriate to transfer her quickly first to an immigration sponsor.

TOTENBERG: Meaning a family member or friend if one could be found. Judge Kavanaugh thought that was a reasonable requirement as long as the government acted quickly.

SHAPIRO: Let's talk for a minute about presidential power and Kavanaugh's views on executive authority, especially in the context of criminal investigations, which could have some consequences for President Trump. What did Kavanaugh have to say today?

TOTENBERG: Kavanaugh in 1999 criticized the Supreme Court's decision ordering President Nixon to turn over incriminating tape recordings pursuant to a subpoena. And he suggested then that that case was wrongly decided. Today he said that his comments in 1999 were misinterpreted, that, in his words, there was a misunderstanding. He said the Nixon tapes decision was among the great Supreme Court decisions because, as he put it...

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KAVANAUGH: The court stood up for judicial independence in a moment of national crisis.

TOTENBERG: But when Senator Feinstein got more precise, Kavanaugh gave a bit of a fudgier answer.

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FEINSTEIN: Was it rightly decided?

KAVANAUGH: So I have said that - I've said, yes, that a - the court's holding that a criminal trial subpoena to a president in the context of the special counsel regulations in that case, for information - a criminal trial subpoena for information under the specific...

TOTENBERG: You can hear him hemming and hawing there - certainly not as clear an answer as he probably wanted it to be.

SHAPIRO: Well, Nina, you've covered about 20 of these confirmation hearings, including some where the nominee was not confirmed. How do you think Kavanaugh did today compared to the others you've seen?

TOTENBERG: Well, as far as I'm concerned, Chief Justice John Roberts retired the trophy for best witness even though he really didn't tell the senators all that much about his legal views. But he had what most nominees including Kavanaugh pretty much lack. Roberts had a wicked and quick sense of humor. Kavanaugh, in contrast, is a pretty serious guy on the witness stand. The one giggle we got today was really with the aid of Republican Lindsey Graham and Democrat Dianne Feinstein. Graham asked the nominee how he wants to be remembered. Take a listen.

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KAVANAUGH: Good dad, good judge...

FEINSTEIN: Good husband.

LINDSEY GRAHAM: I think he's getting there.

KAVANAUGH: Good husband.

(LAUGHTER)

GRAHAM: Thanks, Dianne. You helped him a lot (laughter) - going to be better for you tonight (laughter).

(LAUGHTER)

SHAPIRO: All right, NPR's Nina Totenberg, thank you for your coverage of this confirmation hearing.

TOTENBERG: Thank you, Ari. Transcript provided by NPR, Copyright NPR.