Treading carefully, Kavanaugh dodges confirmation minefields

Supreme Court nominee Brett Kavanaugh leaves the Senate Judiciary Committee hearing room during a break on the second day of his confirmation hearing, on Capitol Hill in Washington, Wednesday, Sept. 5, 2018. (AP Photo/J. Scott Applewhite) –The Associated Press

WASHINGTON (AP) — Judge Brett Kavanaugh is treading carefully during his confirmation hearing as senators bombard him with questions about abortion, presidential power and the independence of the judiciary.

Some highlights from the Supreme Court nominee’ confirmation hearing Wednesday:



Democrats and liberal interest groups have treated Kavanaugh’s nomination as a moment of extreme danger for abortion rights. Abortion opponents hope he’ll be a vote to uphold additional restrictions on the procedure and even possibly overturn the 1973 Roe v. Wade Supreme Court decision that established a constitutional right to an abortion.

Kavanaugh didn’t show his hand either way on Wednesday.


He did call Roe v. Wade an “important precedent” that has “been reaffirmed many times over the past 45 years.” And he noted that a 1992 decision of the court — Planned Parenthood v. Casey — didn’t just reaffirm Roe v. Wade in passing. He said that decision becomes “precedent on precedent.”

Supreme Court justices are generally reluctant to overturn precedent, but that doesn’t mean it doesn’t happen. Last term, the court squarely overturned three precedents. One of those cases was from 1967 and had been reaffirmed in 1992.

Also in responding to questions about the Roe v. Wade decision Kavanaugh said that he understands “how passionate and how deeply people feel about this issue” of abortion. He also said he understands the “real world effects of that decision.”



Kavanaugh declined to answer a series of questions about the powers of the president, questions important to Democrats particularly because of ongoing investigations surrounding President Donald Trump.

Nominees generally decline to answer questions they deem could potentially come before the court. They say they decide issues only after hearing both sides of a case.

Among the questions Kavanaugh said were too hypothetical to answer: Does the president have an absolute right to pardon himself? Can the president pardon someone in exchange for a promise not to testify against him? Can the president be required to respond to a subpoena?


That last question is among the most important at Kavanaugh’s hearing since Trump could face a subpoena in special counsel Robert Mueller’s Russia investigation. Trump has declined to rule out pardons for people convicted as part of that investigation.



Repercussions of the “Me Too” era made an appearance at Kavanaugh’s hearing. The judge was asked what he knew about sexual misconduct allegations against a judge who was a friend and mentor, former federal appeals court judge Alex Kozinski. Kozinski retired in December after several female former law clerks and colleagues accused him of sexual misconduct.

Kavanaugh said that when the allegations became public, they were a “gut punch” for him and for the federal judiciary. Asked whether he knew anything about the allegations before they became public, Kavanaugh responded: “nothing.” He said he was “shocked and disappointed.”

Asked whether he was on an email list that Kozinski used to send offensive material, Kavanaugh responded: “I don’t remember anything like that.”

Kavanaugh clerked for Kozinski, and Kozinski introduced him during his 2006 confirmation hearing to be a judge. The two also worked together to screen applicants who wanted to clerk for Justice Anthony Kennedy, whom Kavanaugh clerked for and whom he would replace.


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