The Daily - A Chaotic Opening Day for Brett Kavanaugh

Episode Date: September 5, 2018

On the first day of Judge Brett Kavanaugh’s Supreme Court confirmation hearings, battle lines were drawn around the issues of abortion, the withholding of documents and executive power. Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. On the opening day of Brett Kavanaugh's Supreme Court confirmation hearings, the battle lines were drawn. Abortion, the withholding of documents, and executive power. It's Wednesday, September 5th. This is the sixth confirmation hearing I've covered, and they are usually completely ceremonial and ritualistic

and predictable. People give opening statements, the nominee is introduced, the nominee gives an opening statement, everybody goes home, and the interesting stuff starts the next day when the nominee gets questions. Tuesday morning, pandemonium broke out. Adam Liptak covers the Supreme Court for The Times. So Senator Grassley, he's got a tiny little gavel, and he gaveled it a few times. Good morning. I welcome everyone to this confirmation hearing on the nomination of Judge Brett Kavanaugh. Mr. Chairman. Almost before he even gets a word out. Mr. Chairman, I'd like to be recognized for a question before we proceed.

out. Mr. Chairman, I'd like to be recognized for a question before we proceed. The committee received just last night, less than 15 hours ago, 42,000 pages of documents that we have not had an opportunity to review or read or analyze. He was barraged with complaints from Democrats who thought they were being railroaded because they'd been denied access to documents they thought were very important. Mr. Chairman, I agree with my colleague, Senator Harris. Mr. Chairman, we received 42,000 documents that we haven't been able to review last night, and we believe this hearing should be postponed. I know this is an exciting day for all of you here. They're not getting a look at all kinds of documents, and they were also complaining about just Monday, Labor Day,

getting 40,000 documents dumped on them. On the integrity of the documents we've received, there really is no integrity. They have alterations, they have oddities, attachments are missing, emails are cut off halfway through a chain, recipients' names are missing. And at the same time... Scores of protesters, one after the other, stood up.

And this goes on for the better part of an hour. You're out of order. Mr. Chairman, I appeal to be recognized on your sense of decency and integrity. Back and forth. You spoke about my decency and integrity. Back and forth. You spoke about my decency and integrity, and I think you are taking advantage of my decency and integrity. And both sides have something to say for themselves. It is absolutely true that a lot of records relating to Brett Kavanaugh's service in the George W. Bush White House have not been produced. It's also true that it's hard

to imagine what that piece of paper would be that would change a single vote, and that a lot of people complaining about the lack of access to records have already announced they're not going to vote in favor of Judge Kavanaugh anyway. So there's a weird dynamic in this thing and a palpable sense of unease, mistrust, and just bad vibes in a setting where, at least in the past, people had tried to pretend that this was a dispassionate exercise in which you're trying to get to the bottom of a nominee's jurisprudential beliefs. So you're saying on the one hand, the Senate Democrats in this hearing are correct that they either had documents withheld from them or they got many documents dumped on them at the last

minute. On the other hand, they're just sort of looking for a reason to grouse about these proceedings and to potentially hold them up. I recall, for example, Senator Blumenthal wants to adjourn the hearing. Mr. Chairman, we have been denied real access to the documents we need to advise... Mr. Chairman, regular order is called for. ...which turns this hearing into a charade and a mockery of our norms. Well... And, Mr. Chairman, I therefore move to adjourn this hearing. Okay.

In truth, the votes are locked in. No one's mind is going to be changed by anything that happens at these hearings. No one's mind, I have to think, would be changed if every document that this man ever touched were to be made public. The Republicans have a point, too. He's touched a lot of documents. He was staff secretary to George W. Bush, which means he was the clearinghouse for literally millions of documents that passed through him. And it would take a long, long time to get all of those documents out.

And the National Archives is working on it, but has said they can't get it done in time for the hearings. And we'll close that portion of today's hearing with his testimony. Mr. Chairman, when will we review Senator Blumenthal's motion to adjourn? So how does Grassley respond to this hour-long detour from his opening statement? Well, for the most part, he lets people talk. And I think we ought to level with the American people. Do you want this to go on all day? Because I have been patient.

I've been accused of having a mob rule session. Now, if we have a mob rule session, it's because the chairman's not running the committee properly. session is because the chairman's not running the committee properly. But he sort of complains about himself that he's letting the committee run the chairman rather than the chairman run the committee. Because I've been instructing people that run committees, either you run the committee or it runs you. And you guys have been very successful today in running the committee. But I guess to his credit, he basically lets everyone say their piece. And after a while, the Democrats more or less run out of steam.

And we get on to what usually happens, which is the canned opening statements from about 20 senators. You're obviously exceptionally well-qualified. So the statements went back and forth. Even your staunchest critics would not claim otherwise. Your academic pedigree, your experience as a practicing lawyer, your experience in government. Republican senators praised Judge Kavanaugh as a judicial luminary.

You're the sort of person many of us would like to have as a friend and a colleague. And a great guy. And I know well that you have a reputation as a good friend, a good classmate, a good roommate, as a good husband and family man, that you've contributed to your community. I think we'll hear later today that you've even been a great youth basketball coach. A basketball coach to his girls' basketball team and a wonderful fellow. And the Democratic senators. I want to talk a little bit about one of the big decisions and that's Roe v. Wade. Expressed their unhappiness and uneasiness. The NRA has poured millions into your confirmation promising their members that you'll break the tie. And they also

said they would ask him to commit to putting the hearings off for a week or two to let them come back at the documents. If you believe that your public record is one that you can stand behind and defend, I hope that at the end of this, you will ask this committee to suspend. Senator Klobuchar. Welcome, Judge Kavanaugh. We welcome your family as well. Adam, I was especially struck by the statement of Senator Amy Klobuchar. On its face, this may look like a normal confirmation hearing, but this is not a normal confirmation hearing. hearing. But this is not a normal confirmation hearing. Who begins by arguing that we live in a very strange, I think she calls it not normal moment, where the president is behaving in an

unconventional way, is under investigation by a special counsel, denounces the Department of Justice and the FBI. What concerns me is that during this critical juncture in history, the president has handpicked a nominee to the court with the most expansive view of presidential power possible. Yeah, well, she made the point. Of course, we are very pleased when a judge submits an article to the University of Minnesota Law Review. She said, well, one thing I like, Judge Kavanaugh, is that you wrote this article in the Minnesota Law Review. That's great.

But the article you wrote that I'm referring to, Judge, raises many troubling questions. But the content of that article was terrible. Should a sitting president never be questioned by a special counsel? What that article said was that you didn't think that a sitting president should be civilly sued, criminally investigated, criminally prosecuted, and that at this moment in time when some of that seems like a realistic prospect of the president who appointed you, you may not be the right guy for the job. The president shouldn't be allowed to pick his own judge when there's a realistic prospect that really in the coming months, a case arising from, let's say,

a subpoena for the president's testimony from Robert Mueller could get to the Supreme Court pretty quickly. It doesn't make sense to have somebody who's already seemed to make a commitment on where he stands on these issues, go to the Supreme Court chosen by the person whose case would be at issue. Our country needs a Supreme Court justice who will better our legal system, a justice who will serve as a check and balance on the other branches of government, who will stand up for the rule of law without consideration of politics or partisanship, who will uphold our Constitution without fear or favor,

and who will work for the betterment of the great American experiment in democracy. That is what this hearing is about. Thank you. So we have, I don't know, six hours of these kinds of statements. And then finally, when the last senator has spoken, it's time for Judge Kavanaugh himself. We'll be right back. So, Adam, after the senators wrap up their statements, what happens in this hearing? I'm fortunate to have Condoleezza Rice, Senator Rob Portman, and Lisa Blatt to introduce the nominee. We have a triple-barreled introduction of Judge Kavanaugh by first former Secretary of State Condoleezza Rice. Brett Kavanaugh will thoroughly and faithfully uphold the trust that is our heritage,

the Constitution of the United States of America, the most remarkable governing document in human history. And then Senator Rob Portman. He is thoughtful and compassionate and someone who has a big heart. Throughout this confirmation hearing, I hope the American people will get to know the Brett Kavanaugh I've had the privilege of knowing. And then most interestingly, Lisa Blatt. Thank you, Mr. Chairman and committee members. It is a privilege to appear before you today.

My name is Lisa Blatt, and I know Judge Kavanaugh in my capacity as an appellate lawyer here in Washington. Right. I found this fascinating, too. Tell us what Lisa Blatt said. I have argued 35 cases before the Supreme Court of the United States. Well, Lisa Blatt has argued more cases before the United States Supreme Court than any woman in history. I am also a liberal Democrat and an unapologetic defender of a woman's right to choose. My hero is Justice Ruth Bader Ginsburg. She is well known in my circles as being an extremely liberal person. I voted for President Obama twice.

And with my apologies, Mr. Chairman, for this one, I wish Senator Feinstein were chairing this committee. And yet she appears on behalf of Judge Kavanaugh, who she acknowledges is conservative, and she makes this case. I've received many angry calls from friends and even strangers for supporting Judge Kavanaugh. But I was raised to call it like I see it, and I don't see the choice before you as difficult. She says, listen, you've got President Trump, you've got a Republican-controlled Senate. They can essentially put whomever they like on the Supreme Court, and this guy is a pretty good judge. His opinions are invariably thoughtful and fair, and many are known as instant classics, not just because they are important, but because they are written so clearly and well. This is a fair-minded, very accomplished,

highly credentialed, careful judge who listens to both sides. And yes, many, most, close to all of his rulings may be conservative ones, but you're not going to do better. I would urge this committee to treat him as we expect him to treat litigants that appear before him on his own merits and with an open mind towards someone whose views may differ from our own. So this is a profoundly pragmatic case by a liberal Democrat saying basically, trust me, this is about as good as it's going to get for you Democrats on this committee. Yeah. Now, I'd say a couple more things. This world of Supreme Court advocates and federal appeals court judges is very small, and they tend to support each other.

And I'm not going to accuse Lisa of doing this, but it's also true that she'll have clients before the Supreme Court, and they will be happy to have a lawyer who seems to have a good relationship with Judge Kavanaugh. And she talked about that. She said he serves as a mentor to her. On a personal level, I just can't say enough nice things about the judge. So some of this is small world Washington elites who tend to support each other. We had something similar with Justice Gorsuch when Neil Katyal, who'd been in the Obama administration, gave a similar opening statement. So it happens,

and there may be a whole set of motives for doing it. I look forward to the committee over the next few days getting to know the Judge Kavanaugh that I know. And at the end of that process, I hope you will agree that he should be confirmed to succeed his former boss on the Supreme Court. Well, that very insightful analysis about backwashing in D.C. aside, I found this to be also interesting because it seems like one of the central dynamics of all this, with Roe v. Wade as the backdrop, is this effort by Democrats to portray Kavanaugh as an enemy of women. And then this counter-effort to portray him as a champion of women. And I also found Blatt's statement to be quite effective in that regard. Here you have a woman, a Democrat, a powerful attorney, and a proponent of a woman's right to choose,

saying basically that she loves this man and holds him in the highest possible esteem. She thinks he's a great guy. And a lot of people think he's a great guy. And he has promoted women in his own professional life. He's had a majority of female law clerks, which is quite unusual. But sometimes people can go too far in thinking how you live your life in your personal life is the same thing as your jurisprudential commitments. But it's possible both to be a terrific person and

to have a set of judicial commitments that is not to everybody's liking. Those two things can coexist. Okay, so finally, after these introductions, we get to Kavanaugh. What does he say? Judge Kavanaugh, do you swear that the testimony you're about to give before this committee will be the truth, the whole truth, and nothing but the truth, so help you God? I do. Thank you. Proceed with your statement or anything else that you want to tell the committee right now. He says all kinds of nice things. Thank you, Mr. Chairman, Senator Feinstein, members of the

committee. As a nominee to the Supreme Court, I understand the responsibility I bear. Some 30 years ago, Judge Anthony Kennedy sat in this seat. He became one of the most consequential justices in American history. He talks about Justice Kennedy, for whom he clerked and whom he hopes to replace. I've served with 17 other judges, each of them a colleague and a friend, on a court now led by our superb chief judge, Merrick Garland. The superb chief judge, Merrick Garland, whose nomination, of course, was blocked by Senate Republicans when President Obama nominated him in 2016. I'm grateful for my friends.

This past May, I delivered the commencement address at Catholic University Law School. I gave the graduates this advice. Cherish your friends. Look out for your friends. Lift up your friends. Love your friends. Over the last eight weeks, I've been strengthened by the love of my friends, and I thank all my friends. He chokes up when he talks about the many friends he has and how he tries to support them and how great they've been during the process. If confirmed to the Supreme Court, I will keep an open mind in every case. I will do equal right to the poor and to the rich.

I will always strive to preserve the Constitution of the United States and the American rule of law. He did exactly what you're supposed to do in this kind of 20-minute opening statement. Introduce yourself to the American people. Seem like a good guy. Say you're committed to the rule of law. He did a nice job. I just love how you're like, he did a nice job. I'm not allowed to say? No, I love it. It's just like, you know, no, I don't know what to say to that other than like, I just love that you say it. that other than like, I just love that you say it. So Adam, as we head into the main event today, the interrogation by senators of Kavanaugh, what did you take away from this opening day,

which started so unusually and unruly, but then kind of reverted to the usual order of things? I think the Democratic senators are going to come in very hot and they're going to try to rattle Judge Kavanaugh and demonstrate to their base that they take this nomination extremely seriously. But I don't know that this nominee is going to be easily rattled. I'm sure he's prepared for many, many hours. The questions are easily anticipated, and he will give long, boring answers to them, and we will emerge from two days of very long days of questioning, knowing probably very little more

about Judge Kavanaugh than we know now. Short of some astounding revelation, nothing we hear over the next couple of days is going to change the minds of a single senator. And if that's the case, with the Senate math being what it is, what does that mean? The chances that when the Supreme Court

takes the bench on the first Monday in October, there'll be nine people on the bench and one of them will be Justice Kavanaugh. It's very high. Adam Liptak, thank you very much. We will talk to you more later this week. Thank you, Michael. Thank you, Michael. On Monday, in his closing statement, Senator Grassley said that each of the 21 senators on the Judiciary Committee would be given 50 minutes to question Judge Kavanaugh, beginning this morning.

Here's what else you need to know today. I want to start off by saying that we all hoped today would never come. But it has come. But it has come. On Tuesday, the governor of Arizona appointed a replacement for the late Senator John McCain, choosing a former U.S. Senator from the state, John Kyle. Good morning. I am grateful for Governor Ducey's confidence in me and honored to accept this appointment. We're all saddened by the circumstances that required the appointment and appreciate that there was only one John McCain. With Republicans holding a 50 to 49 majority in the Senate, Kyle, who was already guiding Kavanaugh on his Supreme Court confirmation

process as an advisor, is expected to be a crucial vote in his favor. I look forward to going to Washington and getting to work. Thank you, Governor. And in his new book about President Trump, The Washington Post's Bob Woodward presents a damning portrait of his White House, finding that aides are constantly circumventing Trump because they lack faith in his judgment and intelligence. Woodward reports that after Syria launched a chemical attack on its own civilians in

2017, President Trump called his defense secretary, James Mattis, and said he wanted to assassinate Syria's dictator, Bashar al-Assad. According to the Washington Post, which obtained a copy of the book, Mattis told Trump that he would proceed, but after hanging up, told aides, quote, we're not going to do any of that. We're going to be much more measured.

Hello, Bob. President Trump, how are you? How are you? How are you doing? Okay. Real well. I'm turning on my tape recorder. Oh, that's okay. That's okay. I don't mind. On Tuesday, the Post published a conversation in which Woodward told Trump that he had tried to interview him about the book at least six times, but got no reply. I'm just hearing about it, and I heard, I did hear from Lindsey, but I'm just hearing about it, so we're going to have a very inaccurate book, and that's too bad.

But I don't blame you entirely. No, it's going to be accurate. Well, accurate is that nobody's ever done a better job than I'm doing as president, that I can tell you. And that's the way a lot of people feel, that know what's going on. And you'll see that over the years, but a lot of people feel that, Bob. I believe in our country, and because you're our president, I wish you good luck. Okay, thank you very much, Bob. I appreciate it. Bye. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.