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How Trump factored into Day 1 of Brett Kavanaugh’s hearing

Brett Kavanaugh's Supreme Court confirmation hearings opened Tuesday with an uproar. What was notable in opening remarks, and how did President Trump loom over the discussion? Judy Woodruff gets analysis from Marcia Coyle of The National Law Journal, former solicitor general Paul Clement, former acting Solicitor General Neal Katyal and Lisa Desjardins.

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  • Judy Woodruff:

    That's just a taste of what we heard today from the 21 senators who serve on the Senate Judiciary Committee.

    Joining me now to consider this dramatic day one in the hearing room are three people who have followed the Supreme Court and appellate judges like Brett Kavanaugh for years.

    "NewsHour"'s regular Marcia Coyle covers the high court for "The National Law Journal." Paul Clement was the U.S. solicitor general, who is the government's lead lawyer before the court. That was during the George W. Bush administration. And Neal Katyal, he served as the acting solicitor general under President Obama. He joins us from New York.

    All three of you, we say welcome.

    And as we have been saying, Marcia, because you joined us for our live coverage during the day, the day got off to a wild start. It did eventually settle down. But what did that wild start tell us about the atmosphere as Brett Kavanaugh begins this confirmation process?

  • Marcia Coyle:

    Well, it's a very highly charged, partisan divide right now.

    And the Democrats have seized on documents that they feel would be relevant from the judge's time when he served as staff secretary to President George W. Bush. That's what they want. They want to see them. They're apparently not going to get them in time at least for these hearings, if at all.

    So that's what we heard for a good part of the day's hearings, that Democrats continued to push the need for documents, even to the point of suggesting to Judge Kavanaugh that he move to delay the hearings until those documents were produced.

  • Judy Woodruff:

    Paul Clement, how — how justified are the Democrats in asking for what they say is something that would be provided under other normal, ordinary circumstances?

  • Paul Clement:

    Well, I think there's a healthy debate about which documents are really necessary and relevant to evaluate a Supreme Court nomination.

    There is certainly no precedent that says that every document that a nominee got anywhere near during their career, that the committee would have their documents, that — Justice Kagan, when she was a staffer to Senator Biden, those weren't widely distributed.

    So there's room to debate about the precedents of where documents should be given and where they shouldn't be given. But I don't really think in some respects that the documents are going to make a big difference on this. And I think in some respects the document fight is really a broader fight and a broader frustration about kind of where the votes are and how this nomination is likely to sort out in the end.

  • Judy Woodruff:

    Neal Katyal, what about you? Do you — do you see this document fight as significant, that it's going to matter in the long run?

  • Neal Katyal:

    I do. And I love my friend Paul, but I couldn't disagree more with what he just said.

    I mean, nobody is calling for every document to be released. With respect to Justice Kagan, I had a firsthand seat to that. I was her deputy when she was nominated. And her documents were turned over, except for a very small number. None of them got executive privilege, which is what's being asserted here, and not for a couple of documents, but for 100,000 documents, and then 42,000 pages dumped last night.

    It was no less than Senator Grassley and Senator Cornyn who, during the Kagan nomination, said, no, we need to see the documents before the hearing. They complained about the hearing date. As I understand it, the hearing date was pushed back in time for Kagan, for the Kagan documents to come out.

    And the worst part about this is that it really hurts Judge Kavanaugh and it hurts the court. We should have an open debate about this with the documents read, and so the American people can see them.

  • Judy Woodruff:

    I just want to quickly turn back to Lisa Desjardins, who is still with us.

    Lisa, do we know whether the Democrats plan to pursue this again tomorrow?

  • Lisa Desjardins:

    We don't know. I asked several Democrats, including Senator Blumenthal, who's sort of one of the leaders here of the kind of opposition, whether they plan to again ask for an adjournment, a delay.

    And they're not putting their cards on the table yet. I wouldn't be surprised if the hearing starts out in a similar way. It may not last as long, because the truth is right now everyone is changing their mind-set, getting ready for very serious one-to-one mental combat with Mr. Kavanaugh, if you're a Democrat.

    They're getting their questions ready. They're trying to anticipate his response. That's what they're focusing on tonight.

  • Judy Woodruff:

    So, Marcia, back to you.

    As we consider what each senator had to say, I think, for Republicans, it was pretty uniformly they were praising Brett Kavanaugh, praising his record, asking, how could anybody not consider this man qualified?

    For Democrats, it was — it was pretty much a list of their concerns about him.

  • Marcia Coyle:

    Yes, that's true.

    The Republicans, their role in a hearing like this, where the nominee is from their own party, they play basically defense. Whatever the Democrats will put forward, they will be trying to push back against.

    Today, since it's early, they were laying groundwork for all of his qualifications, trying also as well to show him more as a human being and what he — the kind of person he is.

    On the Democratic side, there's almost a laundry list of issues that they are concerned about, because they see this seat that he will fill as so — it has been so pivotal, pivotal in so many cases.

    It was Justice Kennedy's seat. And so we heard about abortion, the Second Amendment, the environment, net neutrality, and on and on. And we will hear more of that tomorrow.

  • Judy Woodruff:

    And before I go once against to Paul Clement and Neal Katyal, let's listen to just a part of what Brett Kavanaugh finally did have to say when it was his time to speak to introduce himself to the committee.

  • Brett Kavanaugh:

    My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.

    In deciding cases, a judge must always keep in mind what Alexander Hamilton said in Federalist 83: The rules of legal interpretation are rules of common sense.

    Our independent judiciary is the crown jewel of our constitutional republic. In our independent judiciary, the Supreme Court is the last line of defense for the separation of powers and for the rights and liberties guaranteed by the Constitution.

    The Supreme Court must never, never be viewed as a partisan institution. The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.

    My law clerks come from diverse backgrounds and points of view.

    A majority of my 48 law clerks have been women. More than a quarter of my law clerks have been minorities.

    I see the day that is coming, not the day that is gone.

    I am optimistic about the future of America. I am optimistic about the future of our independent judiciary. I revere the Constitution. 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.

  • Judy Woodruff:

    So, Paul Clement, listening to what Brett Kavanaugh had to say — and we just heard — we were just playing just a part of it there — does that give us a good sense of who he is and the kind of arguments — or, rather, opinions that he's written as a judge?

  • Paul Clement:

    Well, I think it gives you some insight to it.

    I mean, there are some things that Judge Kavanaugh said that I think Judge Sotomayor would have said at her hearing and Justice Kagan would have said at her hearing. So there's some statements about the role of a judge in our system that are pretty noncontroversial and any nominee is going to say.

    The two things that struck me about it that maybe you wouldn't hear from just any nominee, I don't think it's an accident that Judge Kavanaugh mentioned the separation of powers, because, particularly on the D.C. Circuit, where a lot of cases involving executive power and the branches of government are at issue, that's something that he's been very focused on.

    That's a subject he's taught at Harvard Law School. So I think that's one thing that's a little bit different.

    And then he did mention the number of his law clerks who were female or who were racial minorities. And that really is a striking fact about Judge Kavanaugh. I mean, I don't know how much you can really learn from a judge's hiring of law clerks. But it really is striking that he had so many female law clerks.

    I think he was the first judge in the history of the D.C. Circuit to have four female law clerks, basically have a whole chamber's full of female law clerks.

  • Judy Woodruff:

    Neal Katyal, what did you take away from Brett Kavanaugh's statement?

  • Neal Katyal:

    Well, you know, this is the most consequential Supreme Court nomination in our lifetimes.

    And I guess I agree largely with what was said, which is, we didn't actually learn very much about Judge Kavanaugh today. We don't learn very much about the nominee at all. We learned a lot about the nominator. And maybe that was the Democrats' strategy, because this is an unusual nomination, not just because of the penchant for secrecy and hiding of documents that we have been talking about, but also the fact that the president has been fingered by his own personal lawyer as under criminal investigation.

    So you have got these kinds of things that the Democrats kept on returning to as themes and the anomaly of kind of a president nominating someone to our highest court when that person very — very well may sit in judgment of him.

    So you have these oddities. But, really, I don't think we have learned too much about the judge. And I feel bad for Judge Kavanaugh. He is a lovely man. He's been one of the most hardworking judges on the D.C. Circuit. But he has in some sense the misfortune of being nominated by this particular president at this moment in time.

  • Judy Woodruff:

    Marcia, how much does the fact that he was nominated by Donald Trump, being in the controversial position that he's in at this moment in American history, how much — how different is that, I want to ask, than the typical Supreme Court nomination?

  • Marcia Coyle:

    Well, it's very different because of all that is surrounding the Trump administration right now.

    Donald Trump wasn't the invisible elephant in the room. I mean, he was the visible elephant in the room today. His tweets about the Justice Department and the attorney general came up several times by Democratic senators.

    I will say this, that very similar to Justice Gorsuch's position, when a presidential candidate — and we saw it from both in 2016 — promises to appoint someone to the Supreme Court who will overturn certain very high-profile decisions, like Roe or Citizens United, then whoever that president nominates is going to take into that hearing room the question of how independent that nominee is going to be.

    And that's going to be part of the questioning behind the questioning. There's a lot of suspicion on the Democratic side as to how independent Judge Kavanaugh will be.

  • Judy Woodruff:

    So, Paul Clement, is there an additional burden on this nominee, on Brett Kavanaugh, because of the person who appointed him?

  • Paul Clement:

    I don't think there should be.

    And I think, because of who Judge Kavanaugh is in particular, I think, at the end of the day, I don't know that a strategy of trying to apply a different standard because of the president who nominated is going to work.

    And the reason I say that is because Judge Kavanaugh is somebody who would have been on the short list of every candidate in the Republican primaries. He's an incredibly well-respected judge. I mean, if you had a nominee who was an outlier, and could have only been nominated by this president, then maybe it'd be a different situation.

    But this is exactly the kind of candidate you would expect to be nominated to the Supreme Court.

  • Judy Woodruff:

    And, just very quickly to you, Neal Katyal, how do you see the — President Trump as he looms over these hearings?

  • Neal Katyal:

    Well, I think it's a huge deal.

    And we even saw it Senator Cruz tried to make lemon out of lemonade — lemonade out of lemons by saying, look, this is someone who has been ratified effectively because, in 2016, Trump put out a list as a candidate of people he would nominate. He won the presidency. Therefore, Judge Kavanaugh is ratified by the American people.

    The only problem with that claim was Judge Kavanaugh was put on the list in November of 2017, after the whole criminal investigation of Mueller and stuff became public. So it does look really odd.

    I agree with Paul. This is a very qualified person, deserves to be on every short list, as does, by the way, Paul Clement. But the timing and the circumstance of this nomination are a bit odd.

  • Judy Woodruff:

    Neal Katyal, Paul Clement, who just received a very nice compliment…


  • Judy Woodruff:

    … from your friend, and Marcia Coyle, thank you, all. Thank you, all three.

    And, Lisa Desjardins, thank you so much for covering it for us from the Capitol.

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