Nel's New Day

September 6, 2018

Kavanaugh: ‘I Can’t Answer That’

Conservatives claim that Brett Kavanaugh is a shoe-in for the next Supreme Court justice, but the first three days of the hearings in the Senate Judiciary Committee may give doubt. Despite the one-two punch of Bob Woodward’s book Fear and the NYT anonymous op-ed piece from a senior administration official about the chaos in the White House, this week’s Kavanaugh hearings have stayed in the media.

Notable were the protests for the three days with 73 arrests on Wednesday. Kavanaugh gave his opening statement Tuesday and waited until questions until the next day. He answered the first question by flip-flopping on his former opinion that the unanimous ruling that President Richard Nixon should turn over tapes and documents requested by the Watergate special prosecutor was wrong. The new Kavanaugh criticized the old Kavanaugh’s criticism of the Supreme Court decision limiting presidential power.

Kavanaugh typically stalled to take time allotted to each senator on the committee or refused to answer questions although he has earlier provided opinions on some as a judge or a private lawyer. Some he “couldn’t” answer:

  • Should a president be able to use his authority to pressure executive or independent agencies to carry out directives for purely political purposes?
  • Can a sitting president be required to respond to a subpoena?
  • Is DDT correct in asserting that he has an “absolute right” to pardon himself?
  • Does he still believe his 1998 comment that “a president can fire at will a prosecutor criminally investigating him”?
  • Can a sitting president be indicted?
  • Would he uphold protections for people with pre-existing conditions?
  • Can the president pardon someone in exchange for a bribe? (Kavanaugh said, “It depends.”)
  • Can the president pardon himself?
  • Does the president have the ability to pardon somebody in exchange for assurances that they won’t testify against him?
  • Would he uphold the statute preventing insurance companies from denying coverage to people with pre-existing conditions?
  • Would he consider recusing himself from cases involving potential liability for Trump?
  • Was Roe v. Wade correctly decided?
  • Will he commit to not vote to overturn Roe v. Wade?
  • On affirmative action, do universities have a compelling interest in admitting a diverse student body?

In an attempt to be “cute,” Kavanaugh claimed that he was citing the “Ginsburg rule,” saying that she also refused to answer questions, including one about Roe v. Wade. He either lied or was mistaken: Ruth Bader Ginsburg was very clear in supporting Roe when she said during the confirmation hearings:

“[Abortion] is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”

Kavanaugh told Sen. Susan Collins (R-ME) that Roe is “settled law,” but, as a sitting judge, he failed to follow this “settled law” when he tried to keep a young woman imprisoned so that she could not access an abortion after a rape. He lso dissented from “settled law” in a 2011 ruling upholding a ban on semiautomatic weapons, claiming that they couldn’t be banned because they are in “common use.”

A classic example of Kavanaugh’s trying to avoid an answer came from Sen. Kamala Harris (D-CA). She asked him if he had talked about the Robert Mueller investigation with anyone from “the law firm founded by Marc Kasowitz, President Trump’s personal lawyer” and warned Kavanaugh, “Be sure about your answer, sir.” Obviously uncomfortable, Kavanaugh sputtered, “I’m not remembering.” An affirmative answer would have shown close ties to DDT, and a negative one could catch him up if evidence later provides he perjured himself. After a day, Harris asked him again about any meeting. Waffling for several minutes, he finally denied any meeting, perhaps feeling more secure that he was safe from any repercussions.

Kavanaugh failed to answer Harris’ question about Roe v. Wade, repeating his “hypothetical” excuse.” She followed up by asking, “Can you think of any laws that give government the power to make decisions about the male body?” After back-and-forth, Kavanaugh confessed that he didn’t know of any such laws.

In another exchange, Sen. Mazie Hirono (D-HI) addressed Kavanaugh’s position that Native Hawaiians aren’t indigenous people and therefore should not be treated like Native Americans on the North American continent. Kavanaugh had claimed that Hawaiians came from Polynesia; Hirono showed him a map proving that Hawaii had been part of Polynesia before the U.S. took over the islands. Kavanaugh’s views in Rice v. Cayetano case is often used to challenge the validity of programs designed to help Native Hawaiians and could be used against Alaska Natives and possibly endanger the sovereign rights of Native Americans on the lower 48 states. Dictator Donald Trump (DDT) wants to do away with Native American rights on reservations so that he can take the lands, and Kavanaugh has remarked that “we are just one race here. … American.” In his opposition to affirmative action, he has also railed against benefits to Native peoples as a “naked racial-spoils system.”

The questioning of Kavanaugh has made clear the problem he has with perjury and lying under oath. Contents of some previously “confidential” emails during his time with George W. Bush in the White House demonstrated that his answers are not entirely truthful. Bill Burck, longtime friend of Kavanaugh, is in charge of selecting the released documents instead of a nonpartisan archivist. A private lawyer, Burck has recently represented Don McGahn, Reince Priebus, and Steven Bannon in connection with Robert Mueller’s investigation. White House counsel McGahn is responsible for getting Kavanaugh confirmed.

Sen. Dick Durbin (D-IL) echoed Leahy’s concerns about Burck hiding Kavanaugh’s documents:

“By what authority is this man holding back hundreds of thousands of documents from the American people? Who is he? Who is paying him?”

Several Democratic senators have released emails from Kavanaugh’s time in the White House, supposedly for the committee’s eyes only, that shows how much Kavanaugh lied in his first two days of the committee hearing. These documents explain that he believes Roe v. Wade may not be “settled law,” he took an instrumental part in trying to get Charles Pickering confirmed as judge to an appeals court, he saw materials on warrantless surveillance and supported it, he called affirmative action “naked racial set-aside,” and he “didn’t care” what lower courts thought about a rule that corporate and union funds used to attack or support specific candidates must be disclosed to the FEC if the Supreme Court looks at the issue. The new emails also show that Kavanaugh lied under oath in 2006 when he told Leahy that he heard nothing about the NSA illegal warrantless wiretapping until he read about it in the New York Times instead of writing about it to John Yoo in the DOJ on September 17, 2001. Sen. Dick Durbin (D-IL) Sen. Dick Durbin (D-IL) also listed at least three specific examples when Kavanaugh participated in discussions about the Bush administration’s detainee and torture policy although Kavanaugh denied under oath that had been involved in that policy-making.

In advising a judicial nominee meeting with Democratic senators, Kavanaugh wrote:

“She should not talk about her views on specific policy or legal issues. She should say that she has a commitment to follow Supreme Court precedent, that she understands and appreciates the role of a circuit judge, that she will adhere to statutory text, that she has no ideological agenda.”

Republicans are so desperate to get a far-right Supreme Court justice that they don’t care how unethical that person might be. In 2002, Manuel Miranda, senior staffer for Senate Majority Leader Bill Frist, stole strategy emails and memos from Democratic senators, including Patrick Leahy (D-VT) for their opposition to Priscilla Owen, who was being shepherded through confirmation by Kavanaugh. Questioned in 2004 and 2006 for his own judicial nomination, Kavanaugh denied that he knew these documents, shared with GOP senators, had been stolen. Asked about these denials, possibly perjury, Kavanaugh continued to deny any knowledge. Much to the fury of the committee chair Chuck Grassley (R-IA), Leahy (right) argued that he wanted the documents made public, ones that may related to possibly perjury regarding Kavanaugh about warrantless wiretapping and torture. Leahy tweeted:

“Between 2001 and 2003, Republican Senate staffers hacked into and stole 4,670 files on controversial Bush judicial nominees from 6 Democrats, including me. This scandal amounted to a digital Watergate, not unlike Russia’s hacking of the DNC.”

The video of Leahy’s questioning.

Leahy also pointed out Grassley’s lies about the quantity of document release. Nine-nine percent of Elena Kagan’s documents were released 12 days before the hearing, and only four percent of Kavanaugh’s documents were provided to Democrats, ten percent of them less than 15 hours before the hearing began. Much has been said about the quantity of Kavanaugh’s documents that senators received, but Leahy tweeted that Grassley provided tens of thousands of supplicates of inconsequential documents such as “event invitations … duplicated MORE THAN 44,000 TIMES.”

“Brett Kavanaugh is the only [nominee] out there that we know who says a president shouldn’t even be questioned, let alone indicted or prosecuted,” Rachel Maddow said. “… [T]his particular nominee was chosen by a president who is, himself, the subject of serious criminal investigation right now, while Kavanaugh’s confirmation proceedings are underway.”

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