Kevin Daley, DCNF

• Democrats took the offensive against Judge Kavanaugh Wednesday, pressing for his legal views on self-pardons and presidential subpoenas.
• Lawmakers also asked about his relationship with a judge credibly accused of sexual harassment.
• Kavanaugh promised to follow text, precedent and history as a Supreme Court justice.

Democrats on the Senate Judiciary Committee pressed Supreme Court nominee Brett Kavanaugh for his views on executive power, special counsel Robert Mueller, race-driven policymaking and the Me Too movement during the second day of his confirmation hearings Wednesday.

For his part, Kavanaugh followed the well-trodden path of previous Supreme Court nominees, agreeing to discuss existing bodies of law but refusing to engage with hypotheticals.

“I’ll be an independent judge who follows the law and the Constitution as written,” Kavanaugh said, repeatedly telling lawmakers that his interpretation of law is driven by adherence to text, precedent and historical practice.

Executive power was featured prominently during Wednesday’s hearing, as nearly every Democrat asked Kavanaugh questions relating to his view of the presidency. The judge declined to give his substantive opinions on a range of issues relating to Mueller’s investigation, dodging questions as to whether a sitting president can pardon himself or whether President Donald Trump must comply with a subpoena. He also would not pledge to recuse himself from cases involving Trump and the special counsel at the urging of Democratic Sen. Richard Blumenthal of Connecticut.

In the modern period, Supreme Court nominees have generally avoided divulging their legal positions in confirmation hearings, citing the importance of maintaining the appearance of impartiality. Kavanaugh repeatedly noted that every current justice declined to answer questions about pending cases or matters that could reach the high court during their confirmation hearings.

Democratic Sen. Chris Coons of Delaware grilled Kavanaugh about remarks he made during a 2016 lecture at the American Enterprise Institute (AEI), in which he said the Supreme Court’s 1988 Morrison v. Olson decision was wrongly decided. In that case, the high court upheld the constitutionality of the independent counsel law. Justice Antonin Scalia was the sole dissenter in Morrison.

Skepticism of Morrison was something approaching a consensus position when Kavanaugh made those remarks — Justice Elena Kagan has spoken positively about Scalia’s dissent in the case, and Congress declined to reauthorize the independent counsel law in 1999, in part for the reasons Scalia identified in his opinion. However, the 2016 election set off a Morrison revival, as many lawmakers and legal scholars have argued the Trump administration proves the wisdom of a permanent investigator of the executive branch.

Despite his remarks at AEI, Kavanaugh would not say if he would overturn Morrison.

Others asked about Kavanaugh’s relationship with Judge Alex Kozinski, who resigned in disgrace in December 2017 after he was credibly accused of sexual misconduct. Kavanaugh has been connected to Kozinski since the early 1990s — he clerked for Kozinski on the 9th U.S. Circuit Court of Appeals after graduating from Yale Law School, and later helped Kozinski vet potential clerks for Justice Anthony Kennedy. Kozinski introduced Kavanaugh before the Judiciary Committee when he was nominated for the D.C. Circuit.

Asked about their relationship by GOP Sen. Orrin Hatch of Utah, Kavanaugh said he first heard of Kozinski’s alleged wrongdoing in the press, and claimed he was unaware of Kozinski’s predatory reputation.

“It was a gut punch for me, a gut punch for the judiciary, and I was shocked,” Kavanaugh said.

“No woman should be subjected to sexual harassment in the workplace ever, especially in the judiciary,” he added, praising Chief Justice John Roberts for assembling a working group to recommend reforms to the judiciary’s personnel policies.

He also denied that he was party to an email listserv that Kozinski used to disseminate bawdy material with friends.

Democratic Sen. Mazie Hirono of Hawaii raised the topic again later in the day, and seemed to dismiss his denials.

“You saw nothing, you heard nothing, and you obviously said nothing,” she told Kavanaugh.

At several other junctures Wednesday, GOP lawmakers pointed out that a majority of Kavanaugh’s law clerks have been women, which is quite uncommon for a federal judge. Kavanaugh said he was made aware of the sex disparity in clerkships after reading a piece on the subject in The New York Times, and sought out talented female law students to help close the gap.

Most of his clerks have gone out to clerkships on the Supreme Court.

As the day approached its conclusion, Democratic Sen. Cory Booker of New Jersey aggressively questioned Kavanaugh about past writings on racial issues, including affirmative action, voter ID laws and policing practices. Kavanaugh helped coordinate President George W. Bush’s legal opposition to race-conscious admissions policies, The Wall Street Journal reported Tuesday.

The judge predicted in a 1999 interview that the government could treat all Americans as a single race within 20 years. Kavanaugh said the remark was “aspirational” when Booker asked him to explain it in view of ongoing race-based discrimination.

As a federal judge, Kavanaugh wrote an opinion upholding a South Carolina voter ID law, finding the new legislation meaningfully improved an earlier version of the law that disadvantaged minority voters. Kavanaugh’s opinion, which was unanimous and joined by Democratic appointees, was not appealed by former President Barack Obama’s Department of Justice.

Booker said minorities still lack easy access to the franchise, citing the example of an elderly black preacher and World War II veteran who struggled to obtain valid ID required by the South Carolina law.

Kavanaugh’s confirmation hearings will resume Thursday.

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