The Latest: Judge Kavanaugh Testifies at His Final Confirmation Hearing Day

The third day of Judge Brett Kavanaugh’s confirmation hearings before the Senate Judiciary Committee has begun. We’ll be posting updates throughout the day with key questions senators ask Kavanaugh along with his responses.

10:11: Grassley Wraps It Up

Senate Judiciary Committee Chairman Chuck Grassley (R-IA) praised Kavanaugh's performance in the hearings and his qualifications for the Supreme Court, thus concluding Kavanaugh's testimony.

He explained the Friday hearing schedule, which will feature testimony from more than two dozen witnesses.

10:09: Tillis Asks About Alleged Mueller Conversation

Sen. Thom Tillis (R-NC) asked Kavanaugh if he knows anyone at the law firm where he allegedly discussed Special Counsel Robert Mueller's investigation. The nominee said he knew of one person, with whom he'd never discussed the Mueller probe.

10:01: Harris Follows Up On Racial Differences

Sen. Kamala Harris (D-CA) asked about what Kavanaugh termed an "aspirational" comment he made in 1999 that in 20 years the Supreme Court and federal government wouldn't recognize racial differences.

Kavanaugh said that he believes there is "still work to do" in terms of achieving racial equality, and that we aren't at that point yet.

9:56: Flake Not OK WIth Cameras in the Courtroom

Sen. Jeff Flake (R-AZ) gave Kavanaugh a break after his questioning by Booker by explaining fears that cameras broadcasting federal court proceedings would politicize the court.

9:43: Booker Asks About Employment Discrimination

Sen. Cory Booker (D-NJ) asked Kavanaugh if firing someone because of their sexual orientation is morally wrong. Kavanaugh said that while he'd like to answer the question, he cannot because of various pending employment discrimination cases.

9:37: Sasse Gives Kavanaugh a Breather

Sen. Ben Sasse (R-NE) asked Kavanaugh about the evolution of the Bill of Rights during the framing of the Constitution and the various enumerated rights within the first Ten Amendments.

9:30: Hirono Wants to Know Why the NRA Backs Kavanaugh

Sen. Mazie Hirono (D-HI) continued her questioning by asking the nominee why the National Rifle Association supports his nomination as being good for gun rights.

Kavanaugh said that there a lot of groups for and against his nomination, and that he's an independent judge.

9:20: Hirono Asks About Recent Union Ruling

Sen. Mazie Hirono (D-HI) asked Kavanaugh if he agrees with the Supreme Court's decision to overturn the Abood precedent in Janus, in which the majority held that mandatory union dues to public sector unions were an infringement on First Amendment rights.

Kavanaugh said that because it was a recent case, he couldn't offer his assessment as it could come before him in the future.

9:10pm: Senators Take a Break.

9:00pm: Blumenthal Asks For Assault Weapons Ban

Sen. Richard Blumenthal (D-CT) said to Kavanaugh that he'd like for the nominee to tell him that he'd put aside his past rulings related to gun rights and uphold an assault weapons ban.

Kavanaugh said that he "detests school violence" but couldn't weigh in on a matter that could come before him as a sitting judge, and that he has applied Supreme Court precedent on such decisions.

8:53pm: Klobuchar Raises "Chevron Doctrine" Question

Sen. Amy Klobuchar (D-MN) asked Kavanaugh to clarify his stance on the "Chevron doctrine" which holds that courts generally defer to federal agencies' interpretations when considering cases involving regulations.

Kavanaugh cited cases in which he sided with agencies, and said that it depends on the statute at hand and the deference it gives to regulators.

8:49pm: Lee Echoes Crapo's Western Lands Discussion

Sen. Mike Lee (R-UT) echoed comments from Sen. Mike Crapo (R-ID) about the challenges Western states face because so much of the region's land is federally-owned. He expressed concern that the Constitution's enclave clause has been improperly applied, shortchanging states, but told Kavanaugh he didn't need a response.

8:40pm: Coons Asks About Judicial Protection of Sexual Rights

Sen. Chris Coons (D-DE) asked about Supreme Court precedent and whether the Glucksberg test could be used to reject rights related to abortion or contraception access, or gay marriage.

Kavanaugh pointed to testimony from Justice Elena Kagan from her confirmation hearing as views similar to his own.

8:32pm: Cornyn Wants to Know If Parts of the Bill of Rights Matter More

Sen. John Cornyn (R-TX) asked if any part of the Bill of Rights or Constitution mattered more than another. Kavanaugh said they were all of equal importance to an independent judiciary and the American system of government.

8:22pm: Whitehouse Wants Special Counsel Clarification

Sen. Sheldon Whitehouse (D-RI) expressed concern that Kavanaugh is a "human torpedo" aimed at the Mueller investigation and his opinion of U.S. v. Nixon and whether it relates to Mueller's probe.

Kavanaugh said that he has summarized his description of the Supreme Court's finding as best he can, but that he couldn't relate it to hypotheticals.

8:17pm: Leahy Raises Fourth Amendment Concerns.

Sen. Patrick Leahy (D-VT) asked Kavanaugh about technology in surveillance and how the Fourth Amendment applies.

Kavanaugh cited cases in which he found government-sanctioned surveillance to be unconstitutional, and that Supreme Court case law is evolving to match technological changes.

8:13pm: Kennedy Asks About the Importance of the Federalist Papers

Sen. John Kennedy (R-LA) asked Kavanaugh about the importance of the Federalist Papers and draft notes from the Constitutional Convention to understanding the Constitution as ratified. Kavanaugh said that they provide additional insight into the framers' thinking.

8:05pm: Feinstein Wants to Know About LGBT Discrimination

Sen. Dianne Feinstein (D-CA) asked if Kavanaugh was involved in any initiatives involving employment discrimination against LGBT individuals while he worked in the Bush administration. Kavanaugh didn't recall any such initiatives.

8:00pm: Hatch Asks About "Equal Justice Under the Law"

Sen. Orrin Hatch (R-UT) asked Kavanaugh to define equal justice under the law, to which Kavanaugh replied that it means "everyone who appears in an American court is entitled to equal treatment, due process, equal protection" and that "your argument will prevail on the facts and the law not based on the identity of the litigants."

7:50pm: Durbin Asks About Gun Control

To begin the final round of questioning, Sen. Dick Durbin (D-IL) said he didn't believe that Kavanaugh's interpretation of the "history and tradition test" as it relates to gun control is too permissive, calling it "troubling".

Kavanaugh said that he is "very aware of the real world consequences" of gun violence, but that as a judge he was following the Supreme Court's precedent.

7:40pm: The Judiciary Committee takes a short break.

7:30pm: Cornyn Asks About Cameras in the Courtroom.

Sen. John Cornyn (R-TX) asked Kavanaugh his opinion of televised Supreme Court proceedings.

Kavanaugh replied that he could see both the advantages of televised proceedings in terms of improving civic knowledge of legal matters and the disadvantages it could bring. He said he'd decline to take a position on it until he'd discussed it with the Supreme Court's current justices, should he be confirmed.

7:15pm: Harris Revisits Alleged Special Counsel Conversation

Sen. Kamala Harris (D-CA) returned to her earlier line of question about the "reliable information" she'd received that Kavanaugh had a discussion about Special Counsel Robert Mueller or his investigation with lawyers at a law firm with a partner who represents President Donald Trump.

Harris felt Kavanaugh equivocated in his earlier response, and asked him to respond in a yes or no manner. "The answer is no," the nominee replied.

6:55pm: Tillis Tosses Soft Balls.

Sen. Thom Tillis (R-NC) commenced his time with Kavanaugh arguing against using the Mueller investigation to hold up the nomination. He then asked Kavanaugh for the story behind the pocket Constitution he keeps on touching.

“I got it about 25 years ago. The 27th amendment is not in my version, it's so old,” Kavanaugh said.

“I find it remarkable that despite your knowledge you keep it and have kept it for 25 years,” Tillis responded. He added he “doesn't see how a judge with Kavanaugh's track record can be viewed so divisively.”

6:15pm: Booker Confronts Kavanaugh About His Loyalty To Trump.

Sen. Cory Booker (D-NJ) asked Kavanaugh: “You've spoken about the character of the president. Do you still think character matters?”

Surprising no one who’s been following the hearing, Kavanaugh said, “I need to stay far away from political matters.”

Booker pointed out, however, that the nominee had no compunctions talking about having “the greatest respect” for President George W. Bush.

Booker: We have a president who has made a lot of statements. He said a federal job could not do his job because of his heritage. I could go on. Do you have the greatest respect, as you said about Bush, about Trump?

Kavanaugh: I need to stay away.

Booker then moved to questioning the SCOTUS nominee on if Trump - as he's reportedly done with other government workers - demanded loyalty from him.

“Can you tell me why the common person would not sit back and think Trump has demanded loyalty?” Booker asked. “That casts a shadow over these whole processes.”

My loyalty is to the Constitution,” Kavanaugh replied. “The Justice Department takes the position that a sitting president may not be indicted. I have not taken a position on Constitutionality. And I have encouraged Congress to act.”

5:30pm: Hirono: “Does the freedom of religion supersede other rights?”

Sen. Mazie Hirono (D-HI) asked Kavanaugh that question in reference to his 2015 dissent in the Priests for Life v. HHS case. The nominee had sided with the religious organization, which didn’t want to provide employees with insurance coverage for contraception. At the time, Kavanaugh concluded that penalizing someone for failing out a form because of their religious beliefs was unduly burdensome.

Hirono: You determined that filling out a two-age form was unduly burdensome?

Kavanaugh: I found that the fines for failing to figure out the form in violation of their beliefs.

Hirono then referenced this case: Last year, the D.C. Circuit Court of Appeals decided an immigrant teen in federal custody could obtain an abortion. Kavanaugh dissented, arguing the girl was a minor and should be transferred to an immigrant sponsor whom she could consult with regarding her decision.

“In both cases, you ruled against the women. In each case, you reached your desired outcome, which is against women's reproductive rights. It was too much to fill out a two-page form, but not to force a girl to wait around until sponsor could be found.”

“I was following precedent,” Kavanaugh replied.

4:30pm: Blumenthal seeks comment on Trump's negative statements about members of the judiciary.

Sen. Richard Blumenthal (D-Conn.) read out a number of quotes from President Trump speaking unfavorably about members of the judiciary, including Supreme Court Justice Ruth Bader Ginsburg. He asked Kavanaugh if he agreed with Trump's various statements:

"The judiciary and nominees have an obligation to stand up for the judiciary. Gorsuch said these attacks are disheartening and demoralizing. Do you agree?"

Kavanaugh declined to be drawn into what he described as political controversy:

"The way we stand up is by deciding cases without favor."

4:05pm: Kavanaugh's daughters' basketball team shows up.

A group of about 10 to 15 teenage girls in polo and plaid uniforms walked into the hearing room, wearing “admin” badges. A spokesperson for the committee confirmed it’s the team Kavanaugh coaches. They sat in the front row behind the nominee and beside his wife.

3:00pm: Kavanaugh elaborates on dissent on contraception and religious objections.

In a 2015 case, Kavanaugh dissented from his colleagues and sided with the group Priests for Life, which argued that a provision in the law to opt out for religious objections was too burdensome.

Kavanaugh elaborated on the basis for his dissent, telling Sen. Ted Cruz (R-Tex.) that “the government had ways to ensure contraceptive coverage without doing so on the backs of religious objectors.”

Cruz also asked Kavanaugh about a case on which he worked as a lawyer in private practice, in which he backed a high school’s decision to allow student-led prayers over the public address system at football games. Kavanaugh argued that students were delivering their own messages, not speaking on behalf of the school. The Supreme Court disagreed, finding the policy unconstitutional.

“Religious people, speakers and speech are entitled to equal treatment,” Kavanaugh said in the hearing.

2:25pm: Whitehouse pushed Kavanaugh on presidential immunity.

Sen. Sheldon White House (R-R.I.) asked questions aimed at eliciting an admission from Kavanaugh that he'd lied to the committee about having never taken a position on the constitutionality of whether a sitting president can be indicted.  

Whitehouse asked Kavanaugh about a clip of a 1998 Georgetown Law School panel showing Kavanaugh raising his hand when the professor asked who believed, as a matter of law, that a president couldn't be indicted while in office.  

Kavanaugh noted the Justice Department's legal position at the time and said that before the question was asked he had said the issue was a lurking Constitutional question. 

"The fact that I said that suggests I did not take a position on the constitutional ..." Kavanaugh began, before Whitehouse cut him off:

"Although you shot your hand up when the question as a matter of law a sitting president cannot be indicted. It seems to me there are only two kinds of laws unless you are really stretching the envelope here — one is laws that Congress passed and the other is laws that are founded in the Constitution. An internal policy directive within the Department of Justice I think it's a real stretch to call that law." 

1:45pm: Break for lunch and votes.

The hearings are on a break for lunch, as well as for the Senate to vote on a number of judicial nominations.

1:10 pm: Court orders, not the president, are “the final word.”

Senate Democrats raised concerns about President Trump's attacks this week on the Justice Department, and Kavanaugh’s broad view of executive power expressed in his legal opinions and speeches. In a tweet on Monday, Trump criticized Attorney General Jeff Sessions for the recent indictments of two Republican congressmen. Sen. Richard J. Durbin (D-Ill.) said:

“In this age of President Donald Trump, this expansive view of presidential power takes on added significance."

Kavanaugh emphasized the importance of the separation of powers and an independent judiciary as a backstop:

“I’ve made clear in my writings that a court order that requires a president to do something or prohibits president from doing something is the final word in our system."

12:45pm: Schumer: 'Absolute disgrace' that Kavanaugh dodging on abortion.

Senate Minority Leader Charles Schumer (D-N.Y.) knocked Republicans and Kavanaugh while speaking from the Senate floor, saying it was an "absolute disgrace" that Kavanaugh was sidestepping questions:

"He could not assure the American people he would uphold the landmark decision in Roe v Wade... It is an issue that's so important to our jurisprudence. It is an absolute disgrace that a nominee for the Supreme Court refuses to talk about such a fundamental issue at the core of one of the great debates of American society and hides behind legal subterfuge."

11:55am: Sen. Lindsey Graham (R-S.C.) pressed Kavanaugh on whether the Constitution explicitly says women have the right to an abortion. 

“Is there anything written in the document?” Graham asked.

Kavanaugh said Roe v. Wade affirmed the right to abortion and the Supreme Court has reaffirmed it many times. Graham went on:

“But my question is did they find a phrase in the Constitution that said that the state cannot interfere with a woman’s right to choose until medical viability occurs? Is that in the Constitution?” 

Kavanaugh said he wanted to be very careful in his response, but Graham asked for a yes or no answer:

“Is there any phrase in the Constitution about abortion?”

Kavanagh explained that the Supreme Court had found the right to an abortion under the Liberty Clause, but said the Constitution doesn't have specific language.

11:27am: Kavanaugh denied any “inappropriate conversations” about special counsel probe. Late last night, Sen. Kamala Harris (D-Calif.) questioned Kavanaugh about whether he had discussed the special counsel investigation into Russian interference in the 2016 election with attorneys at the law firm founded by President Trump’s personal lawyer Marc Kasowitz.

Kavanaugh got a chance to follow up on the topic, and he said he'd not had any "inappropriate" conversations with "anyone."

Harris said she had it on reliable authority that Kavanaugh had had such conversations, though she wouldn't disclose her source.

11:10am: Kavanaugh downplayed Roe v. Wade email. In response to a newly released email where Kavanaugh appeared to question whether Roe V. Wade was "settled law," Kavanaugh said:

"The broader point was simply that I think it was overstating something about legal scholars and I’m always concerned with accuracy and I thought that was not quite an accurate description of all legal scholars because it referred to all."

He went on to call Roe v. Wade “an important precedent” that has “been reaffirmed many times.”

11:00am: Booker released committee confidential documents. Sen. Cory Booker (D-N.J.) released emails from Kavanaugh's time as a White House counsel.

Booker released approximately 12 pages of emails tied to discussions Kavanaugh had on racial inequality, including one email thread titled "racial profiling."

The documents are marked "committee confidential," meaning they are not supposed to be discussed or released publicly.

10:45am: Cameras in court? Kavanaugh would talk to other justices. The Supreme Court has long prohibited cameras when it's in session. Kavanaugh said he'd be open to learning more about the issue, including by talking to the other justices on the court.

10:30am: Grassley said Democrats would invoke rule to cut confirmation short. Grassley said Democrats would invoke a rule to cut short Kavanaugh's confirmation hearing. Under Senate rules, committees can't hold hearings for more than two hours while the Senate is in session without unanimous consent.

Meanwhile, Democrats were reading aloud from the rules on expulsion in response to Sen. Booker's statement that he'd release confidential committee documents.

10:00am: Booker said he was willing to violate Senate rules to release confidential documents. Sen. Cory Booker (D-N.J.) said he's prepared to violate Senate rules and release confidential committee documents, for which he acknowledged he could be ousted. The document on racial profiling is one that he asked Kavanaugh about last night.

9:55am: New leaked Kavanaugh emails on Roe v. Wade, other topics. The New York Times published a story detailing emails from Kavanaugh that addressed hot-button issues such as Roe v. Wade, affirmative action, and the Bush administration’s warrantless surveillance program.

In one email, Kavanaugh challenged the accuracy of deeming the Supreme Court’s landmark Roe v. Wade abortion rights decision to be “settled law of the land," the paper reported.

9:40am: Protesters took over Grassley's lobby. A group of about 30 protesters took over the front lobby of Senate Judiciary Committee Chair Sen. Chuck Grassley’s office. They were holding signs that said, “Vote no, save Roe” and “Yes means death.” They were also chanting “My body my choice,” among other slogans.

9:33am: Kavanaugh took his seat at the witness table for his third day of questioning.

Tell your senators how they should vote on Judge Brett Kavanaugh’s nomination to the Supreme Court and share your thoughts below!

— Eric Revell, Josh Herman, & Sara E. Murphy

(Photo Credit: D.C. Circuit Court of Appeals / Public Domain)