JUDY WOODRUFF: We return to the confirmation hearing of Brett Kavanaugh to be the next
Supreme Court justice.
It was another day of discord, this time centering on abortion and race.
Democrats publicly released a few dozen of Judge Kavanaugh's documents and e-mails from
his time in the George W. Bush administration.
A lawyer for President Bush had previously deemed those e-mails confidential, meaning
senators could read, but not talk about them.
The release also sparked a heated exchange among senators.
SEN.
CORY BOOKER (D), New Jersey: I'm going to release the e-mail about racial profiling.
And I understand that that -- the penalty comes with potential ousting from the Senate.
I'm releasing it to expose that, number one, the e-mails that are being withheld from the
public have nothing to do with national security, nothing to jeopardize the sanctity of those
ideals that I hold dear.
SEN.
JOHN CORNYN (R), Texas: Running for president is no excuse for violating the rules of the
Senate or of the confidentiality of the documents that we are -- we are privy to.
No senator deserves to sit on this committee or serve in the Senate, in my view, if they
decide to be a law unto themselves and willingly flout the rules of the Senate and the determination
of confidentiality and classification.
SEN.
MIKE LEE (R), Utah: It's called the Presidential Records Act.
That's the demon that you're after here.
That is the only reason we have got this issue.
Now, the custodian of those documents holds and exercises privilege on behalf of the Bush
administration.
The custodian of those records has agreed, notwithstanding the privileged nature of those
documents, to hand them over to us with an understanding that, when there is a need that
arises with respect to one or more of those documents to make them public, we can, as
a committee, go through a process to do that.
SEN.
CORY BOOKER: There is no Senate rule that I violated, because there's Senate rule that
accounts for this process.
I will say that I did willingly violate the chair's rule on the committee confidential
process.
I take full responsibility for violating that, sir.
And I violated it because I sincerely believe that the public deserves to know this nominee's
record.
SEN.
JOHN CORNYN: May I read the Senate rule 29:5, the standing rules of the Senate, for the
benefit of all senators?
Any senator, officer or employee of the Senate who shall disclose the secret or confidential
business or proceedings of the Senate, including the business and proceedings of the committees,
subcommittees and offices of the Senate, shall be liable, if a senator, to suffer expulsion
from the body, and, if an officer or employee, to dismissal from the service of the Senate
and to punishment for contempt.
So, I would correct the senator's statement there is no rule.
There is clearly a rule that applies.
SEN.
CORY BOOKER: Then apply the rules and bring the charges.
JUDY WOODRUFF: And that is where we will start our analysis of day three of this marathon
hearing.
Our own Lisa Desjardins has been in the hearing room all week.
She joins us from Capitol Hill.
"NewsHour" regular Marcia Coyle covers the court for "The National Law Journal."
Paul Clement served as U.S. solicitor general under President George W. Bush.
And Neal Katyal, he was acting solicitor general in the Obama administration.
He joins us from New York.
Welcome to all of you.
And, Lisa, I'm going to come to you first, because just fill us in, if you will, briefly
on what was going on overnight that led to the release of some of these documents that
this argument started about earlier.
LISA DESJARDINS: Simply, Judy, Democrats, including Senator Booker, actually requested
that the documents which had previously been confidential be allowed to be made public.
That is something they had not requested until last night.
They did.
They did it late.
And through the night, committee staffers, along with staffers for George W. Bush, his
attorneys, and the Department of Justice worked through those documents.
And by about 4:00 a.m., they were able to clear them for public release.
By the time the committee met this morning, and had that whole back and forth and kerfuffle,
the documents that Cory Booker was talking about were in fact no longer committee confidential.
So there was no breaking of the rules today.
But, Judy, I think what you saw was a bigger battle over the image for both parties.
Democrats felt like they had some ground to stand on, based on these e-mails, one of which
dealt with racial profiling, another with abortion, to say, hey, there is something
in these documents worth talking about that we couldn't talk about before.
Republicans acted quickly, because they didn't want to look like they had anything to hide.
JUDY WOODRUFF: Marcia Coyle, Why did it matter in the end whether this material was made
public or not?
MARCIA COYLE, "The National Law Journal": Well, I think because it -- at least from
the Democrats' perspective, Senate Democrats' perspective, it did open some additional lines
of questioning about Judge Kavanaugh's views of abortion, affirmative action and race in
general.
So I don't know that the politics are all that important, but I think it was -- it was
just another avenue in which they could try to gain more insight into his views on those
issues in particular.
JUDY WOODRUFF: Neal Katyal -- I'm sorry.
Paul Clement, there was a back and forth yesterday and today over who was responsible for deciding
what was released and what wasn't.
Was it in the interest of the Bush administration in some way to keep this material or so -- and,
frankly, so many pages of documents still under seal?
PAUL CLEMENT, Former U.S. Solicitor General: I don't think that it was in the interest
of the Bush administration necessarily to keep this material confidential.
Obviously, there is a process under the Presidential Records Act.
And I think there are important reasons why that process should be followed.
I think the key thing, though, is the one person who wasn't responsible for keeping
these documents from the public was Judge Kavanaugh.
And so, in some ways, I think all of these procedural sideshows probably worked to his
benefit, because he's not the one that has sort of kept these documents away from people.
And this is really sort of a fight between the Democrats and the Republicans on the Senate
Judiciary Committee.
JUDY WOODRUFF: So, Neal Katyal, at the end of the day, having now had a look, giving
Democrats and the public a look at this, do we come away with it with any sort of different
perception of this nominee?
NEAL KATYAL, Former Acting U.S. Solicitor General: Yes, I think we do.
And so I agree with Paul.
We don't know whether it's in the interest of the Bush administration.
But it's really not in the interest of Judge Kavanaugh to have 100,000 pages of documents
still withheld even at this moment, and many pages dumped just a little while ago, and
some dumped, you we said, at 4:00 a.m.
And Senator McConnell warned President Trump and said, look, if you nominate Judge Kavanaugh,
and you want to have a rush hearing, it's going to be a problem because of the vast
number of documents.
And when you have held a document like this, like the ones today were not classified or
anything like that, they are things about like abortion, it looks fishy.
It looks like there's something to hide, even when there very well maybe nothing to hide.
But here we are on day three, we still haven't gotten all the documents.
They're trickling out, but there's still 100,000 pages being withheld.
And I think it looks particularly suspicious when the rules that Senator Grassley insisted
on and Senator Cornyn with respect to Kagan, they are now throwing that rule book entirely
out and saying, oh, we don't need all the documents.
JUDY WOODRUFF: All right.
Well, let's get a sense of what more Judge Kavanaugh was asked today.
We're going to play now a little bit of sound -- more sound from today's hearing.
This exchange with Democratic ranking member Dianne Feinstein is about a 2003 e-mail from
the George W. Bush White House in which Judge Kavanaugh questioned if Roe vs. Wade is settled
law or if other judges would overturn it.
SEN.
DIANNE FEINSTEIN (D), California: Tell us why you believe Roe is settled law.
And, if you could, do you believe it is correctly settled?
BRETT KAVANAUGH, Supreme Court Justice Nominee: Roe v. Wade is an important precedent of the
Supreme Court.
It's been reaffirmed many times.
It was reaffirmed in Planned Parenthood vs. Casey in 1992, when the court specifically
considered whether to reaffirm it or whether to overturn it.
In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter
and Justice O'Connor went through all the factors, the stare decisis factors, analyzed
those, and decided to reaffirm Roe.
SEN.
DIANNE FEINSTEIN: So, you believe it is correctly settled, but is it correct law, in your view?
BRETT KAVANAUGH: Just the whole body of modern Supreme Court case law, I have to follow what
the nominees who've been in this seat before have done.
SEN.
DIANNE FEINSTEIN: Judge, a yes or a no will do.
BRETT KAVANAUGH: Well, I'm -- just if I can briefly explain, Senator.
SEN.
DIANNE FEINSTEIN: Yes, you can, of course.
BRETT KAVANAUGH: Brief -- I will try to be brief.
But this -- when you're in this seat, I'm not just sitting here for myself.
I'm sitting here as a representative of the judiciary and the obligation to preserve the
independence of the judiciary, which I know you care deeply about.
And so one of the things I have done is studied very carefully what nominees have done in
the past, what I have referred to as nominee precedent.
And Justice Ginsburg, but really all the justices, have not given hints or forecasts or previews.
And Justice Kagan, I think, captured it well, as she often does, with -- in talking about
questions like the one you're asking, you can't give a thumbs up or thumbs down and
maintain the independence of the judiciary.
So I need to follow that nominee precedent here.
JUDY WOODRUFF: So, Marcia Coyle, Judge Kavanaugh is saying, I'm simply doing what the other
justices who are now sitting on the court have done when they were asked these questions.
MARCIA COYLE: There was -- there's been considerable confusion over the last three days about what
he may mean by settled law.
And when the e-mail from the time he was in the White House came out in which he was responding
to a statement that was being drafted in support of another judicial nominee, the statement
said something to the effect that all legal scholars agree that Roe is settled law.
And he -- and he -- and he said, no, I don't think that you can say that Roe is settled
law, that all legal scholars agree that Roe is settled law, because there are at least
three justices who may be inclined to overturn it.
So that just prompted a whole series of questions.
Did he believe it was settled law or not?
That e-mail response really didn't reflect what he thought.
So he had to explain, settled law, precedent, how -- how do you distinguish between the
two?
And he did point out that there are certain decisions of the Supreme Court, historical
decisions, involving issues that are unlikely to come before the court again, such as school
segregation, Brown vs. Board of Education, that he felt he could say that that was correctly
decided, that is settled law.
But he said there's also a whole body of Supreme Court decisions, precedents that could come
back to the Supreme Court, and so he was following what other nominees had said, that he cannot
comment.
JUDY WOODRUFF: Paul Clement, what was the risk -- what would be the risk in his going
on -- going ahead and saying, yes, I think this was correctly settled, unless he doesn't
believe it, in which case you have a different situation?
PAUL CLEMENT: Oh, I think the risks are quite considerable.
And that's why I think Judge Kavanaugh invoked the nominee precedents.
I think every person who sat in that seat in the Senate Judiciary Committee hearing
room has perceived that, if you start saying, even as to an innocuous precedent that you
think is correctly decided, that, OK, that one's correctly decided, then you have sort
of opened it up to answer that question about every one of the cases.
And then, when you get, if you are confirmed, on the court, then you're in a position where
people are literally going to be citing your Senate Judiciary Committee testimony in briefs
to the court and suggesting that you are hemmed in.
So I do think that he's correct to invoke the precedent of Judge Sotomayor when she
was Judge, and not yet Justice Sotomayor, Solicitor General Kagan when she was before
the committee.
I think invoking that precedent is both a good tactic for present purposes, but I think
it also gets at something very important and is ultimately correct.
JUDY WOODRUFF: So, Neal Katyal, did we get as much as we were likely to get from Judge
Kavanaugh today?
NEAL KATYAL: Well, I was a little surprised that the answer wasn't a bit more fulsome.
After all, Justice Ginsburg certainly answered the question about Roe at her hearings.
Even Judge Kavanaugh answered questions about whether Brown was rightly decided or not and
some other cases.
And this is not a usual nomination.
This is a nomination by a president who campaigned and promised that he would appoint pro-life
justices, two or three, that would -- quote -- "overturn Roe."
And we heard it and heard it and heard it and heard it again until the Justice Kennedy
vacancy.
And then all of a sudden, it disappears.
And that's why I think the e-mail today was significant, because it does suggest that
Judge Kavanaugh has a different view of whether or not he would be able to and would be willing
to overturn settled precedent.
Now, again, maybe there's nothing there.
But it looks fishy to have these documents coming out on day three of the hearing.
They were marked confidential before.
There's nothing classified in them.
This is not a good process.
JUDY WOODRUFF: And there's just one more clip we want to play from today's hearing.
This is when Delaware Democratic Senator Chris Coons was questioning Judge Kavanaugh's views
on presidential power.
SEN.
CHRIS COONS (D), Delaware: I simply wish you would be clear with us and the American people
about your view of the scope of presidential power and what its consequences might be.
I don't think you're being direct with me about that, because I think to be direct with
me about that in this context would put your nomination at risk.
BRETT KAVANAUGH: I respectfully disagree, Senator.
You're talking about a statute that has been -- not existed for 20 years.
I...
SEN.
CHRIS COONS: That's no longer what I'm talking about, Your Honor.
As you know, what I'm talking about is your view of presidential power, as made clear
in speeches and in writings and in a decision this year.
We're not talking about the independent counsel statute now.
We're talking about the scope of presidential authority.
And I think it has consequences for our nation.
BRETT KAVANAUGH: Respectfully, I believe you're talking about a statute that has not been
in place since 1999.
Secondly, the special counsel system, I have specifically written about multiple times
and approved.
Thirdly, if there were some kind of protection, for-cause protection, or some other kind of
protection that were different from the old independent counsel statute, I have said that
I would keep an open mind about that.
So I have not said anything to rule that out.
And I have referred to U.S. v. Nixon as one of the greatest decisions in Supreme Court
history.
JUDY WOODRUFF: Now, since that has happened -- and that happened about an hour or so ago
-- the hearing has continued.
And I am told, in the last few minutes, Judge Kavanaugh has said under questioning that
he wouldn't recuse himself if there were any Mueller case, any legal case that did reach
the Supreme Court were he to be confirmed.
Lisa, this is something Democrats have wanted to get at, is it not?
LISA DESJARDINS: That's right.
And, to be honest, I'm surprised that it took this long for them to ask that question.
I was speaking to the number two Democrat in the Senate, Dick Durbin, three days ago,
and that was one of the very first things he spoke up, was asking that recusal question.
That's a very important answer.
We're going to hear a lot more about it, I think, from Democrats.
JUDY WOODRUFF: Marcia Coyle, just for a quick go-round here at the end, that's -- that's
a significant statement on his part, isn't it?
MARCIA COYLE: Yes.
And -- but I think it wouldn't be unusual for a nominee to say that, because they -- they
realize that the Supreme Court, when a justice recuses, the court is left with eight justices.
And there's difficulty in reaching a decision at that point.
I think Judge Kavanaugh had been asked this before, and I think he said it would depend
on what the case -- the issues in the case.
He said he would follow the judicial code's guidance on recusal in making that decision.
He also made clear -- oh, go ahead, Judy.
I'm...
JUDY WOODRUFF: No, go ahead.
Finish your point.
MARCIA COYLE: I just wanted to stay, on the presidential power issue, he also made it
really clear that, if there were a court order telling the president to do something or not
to do something, that that would be the final word.
And as far as the president taking some action to remove the special counsel, as you heard
in the clip, he said he would keep an open mind on what that -- the special counsel regulations,
as well at what Congress has said about removal.
JUDY WOODRUFF: All of that especially matters right now, Paul Clement, because of what's
been going on with the special counsel.
What do we finally take away with regard to his views on presidential power?
PAUL CLEMENT: Well, I think what he's trying to do here is, he's trying not to prejudge
any of these issues.
And that goes to the merits of an issue, like abortion or a particular executive power issue
that could come up.
And nobody knows exactly the precise context or which issue would come up.
I think he's trying to preserve his ability to decide those issues when they do come up.
And I think that goes even to the question of whether he could recuse himself or would
need to recuse himself.
I don't -- I don't read them as saying he would never -- he would absolutely never recuse
himself.
I think he wants to keep an open mind and apply the standards that would normally be
applied by a justice in that situation.
JUDY WOODRUFF: And, finally, Neal Katyal, just quickly, what do you -- what do you take
away in terms of his views of presidential power?
NEAL KATYAL: There is, Judy, a bombshell in that answer.
He said that he would approve the special counsel regulations in that answer in that
clip that you provided.
Now, yesterday, when asked about race and abortion and affirmative action and consumer
protection, he said, I can't tell you about those hypothetical cases because they could
be pending in my court.
But the -- probably the most significant case currently pending in his court, the D.C. Circuit,
is about the legality of the special counsel regulations.
It's challenged by Concord and the Manafort associates and the like.
And he provided an answer there.
And so I suspect the rest of the hearing is going to focus on that and say, look, if you
can answer that question about a pending case in your court, how can you not answer all
of these other questions?
JUDY WOODRUFF: A number of questions still there.
The hearing continues into tonight.
We will be monitoring it all.
I want to thank all of our guests, Neal Katyal, Paul Clement, Marcia Coyle, Lisa Desjardins.
Thank you.