WASHINGTON—Supreme Court nominee Brett Kavanaugh wrapped up what is likely to be the toughest part of his confirmation process Thursday, completing two 13-hour days of public questioning in which senators often spent their time sparring with one another.
Senators battled each other over confidential documents, with Democrats threatening civil disobedience and Republican warning of severe consequences, and Judge Kavanaugh for a time becoming a spectator at his own confirmation. That followed a Wednesday session in which Democrats repeatedly tried to force a vote on adjourning the hearing.
When senators did press Judge Kavanaugh, they often were rebuffed. They invited him to criticize President Trump’s attacks on judges, prosecutors and the press, but he spent his final day before the Senate Judiciary Committee deflecting those efforts as well as attempts to draw out his views on abortion rights, campaign finance regulations and same-sex marriage.
With the Republicans’ 51-49 Senate majority likely to ensure Judge Kavanaugh’s confirmation before the Supreme Court reconvenes next month, Democrats aimed to tie him to the embattled president they painted as a threat to American democracy.
“Do you understand where we are as a nation now?” said Sen. Dick Durbin (D., Ill.). “Give us some reassurance about your commitment to the democratic institutions of this country in the face of a president who seems prepared to cast them aside.”
“Senator, my 12-year record shows, and my statements to the committee show, and all my teaching and articles show my commitment to the independence of the judiciary as the crown jewel of our constitutional republic,” said Judge Kavanaugh, currently serving on the U.S. Court of Appeals for the District of Columbia Circuit.
Citing the need to remain impartial over matters that could arise before the court, he declined to elaborate on whether a president could be prosecuted while in office or other core questions of executive power.
In a separate episode Thursday, senators debated a March 2003 email sent by Judge Kavanaugh during his years in the George W. Bush White House in which he took issue with the notion that the landmark Roe v. Wade ruling that found a constitutional right to abortion was “settled law.”
“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so,” Judge Kavanaugh wrote.
The nominee told senators at the hearing that in the email he was evaluating how the Supreme Court might view a particular issue, not providing his own viewpoint on Roe.
Judge Kavanaugh established a strongly conservative record on the D.C. Circuit Court. If he is confirmed to replace the retiring Justice Anthony Kennedy, it is expected by Republicans and Democrats alike to shift the Supreme Court’s jurisprudence sharply to the right.
Sen. Sheldon Whitehouse (D., R.I.) told the nominee he feared “you’re basically a human torpedo being launched at the [special counsel Robert] Mueller investigation, so when you get to the Supreme Court you’ll knock it out.”
He asked whether Judge Kavanaugh had couched “an escape hatch” in his praise of U.S. v. Nixon, the Supreme Court decision requiring President Richard Nixon to turn over the Watergate tapes, by describing it as involving a trial court subpoena, rather than one issued by a grand jury, which has been convened for the special counsel.
“Have you essentially been playing a trick on this committee?” Mr. Whitehouse asked.
“I have tried to describe in a summary fashion exactly what the Supreme Court said in the Nixon case,” Judge Kavanaugh replied.
Much of Thursday morning was taken up by a continuing partisan battle over access to Judge Kavanaugh’s records from the George W. Bush White House. Sen. Cory Booker (D., N.J.) had escalated the issue Wednesday night, when he questioned Judge Kavanaugh over emails he wrote in 2001 and 2002 involving racial preferences and racial profiling, despite those documents being marked “committee confidential.”
Thursday, Democrats outraged Republicans when they released additional documents they said were being withheld by the GOP; they later acknowledged that the papers had been cleared for release overnight.
“Cory and Senate Democrats were able to shame the committee into agreeing to make last night’s documents publicly available, and Cory publicly released those documents as well as other committee confidential documents today,” said Booker spokeswoman Kristin Lynch.
An aide to the committee chairman, Sen. Charles Grassley (R., Iowa), said that senators had been notified before Thursday’s hearing began that the documents had been cleared for release.
The fight over access to records from Judge Kavanaugh’s time in the Bush administration has been a continuing dispute. While hundreds of thousands of pages of material have been made public by the committee, Democrats complained that many other records have been designated “committee confidential” by the panel, limited only to senators and their staffs, without good reason.
Republicans say the restriction of access to some sensitive documents was practiced in previous Supreme Court nomination fights.
But the focus shifted repeatedly to Judge Kavanaugh’s view of executive power generally and connections to President Trump specifically.
Sen. Chris Coons (D., Del.) accused Judge Kavanaugh of obfuscating his views of presidential power. “I don’t think you’re being direct with me about that,” he said, because doing so “in this context would put your nomination at risk.”
“This president is asking for loyalty tests,” said Mr. Booker. “Given all his lies, all his remarks that have been criticized on both sides of the aisle…it is understandable for people to think that there’s something going on” with the nomination.
“My loyalty is to the Constitution. I’m an independent judge,” the nominee responded.
Asked by Mr. Booker if he had the “greatest respect” for President Trump—something he had said about President Bush—Judge Kavanaugh said he didn’t wish to comment on political issues.
The questions were uncomfortable, but the end was in sight.
“Congratulations on your last day of interviewing in your life,” Sen. Ben Sasse (R., Neb.) told the nominee.