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What Kavanaugh said about abortion, guns and presidential pardons

Supreme Court nominee Brett Kavanaugh faced hours of questioning in his second day of confirmation hearings, including on issues of gun rights, sexual harassment, abortion and presidential powers. Judy Woodruff gets analysis from Lisa Desjardins, Marcia Coyle of The National Law Journal, Jamil Jaffer, a former clerk to Justice Neil Gorsuch, and former acting solicitor general Neal Katyal.

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  • Judy Woodruff:

    There was also drama at the other end of Pennsylvania Avenue, as Supreme Court nominee Brett Kavanaugh sat for a second day of confirmation hearings.

    Dianne Feinstein, who is the Judiciary Committee's top Democrat, dug into Kavanaugh's record on protecting gun rights and investigating a sitting president.

  • Sen. Dianne Feinstein, D-Calif.:

    You specifically argued that it was unconstitutional to defend assault weapons because they are — to ban assault weapons because they are in common use. And that, I believe, was your dissent in the case.

  • Brett Kavanaugh:

    Yes, and I was referring to some semi — some kinds of semiautomatic rifles that are banned by D.C. are in wide — widely owned in the United States. And that seemed to be the test that the Supreme Court had set forth in the Heller and McDonald cases, in other words, if a type of firearm is widely owned in the United States.

    Now, whether I agree with that test or not wasn't the issue before me. I have to follow the precedent of the Supreme Court as it's written, and that's what I tried to do in that case. It's a very long opinion. I also made clear, Senator Feinstein, at the end of the opinion I'm a — I am a native of this area. I'm a neighbor native of an urban, suburban area, where we — I grew up in a city plagued by gun violence and gang violence and drug violence.

    So I fully understand, as I explained in the opinion, the importance of this issue. I specifically referenced that Police Chief Cathy Lanier's goals of reducing gang and gun violence was something I certainly applauded, but that I had to follow the precedent of the Supreme Court in that case.

    And as I read it, that's what it said.

  • Sen. Dianne Feinstein, D-Calif.:

    So you can't give me an answer on whether a president has to respond to a stiff subpoena from a court of law?

  • Brett Kavanaugh:

    It's my — my understanding is that you're asking me to give my view on a potential hypothetical. And that's something that the — every — each of the eight justices currently sitting on the Supreme Court, when they were sitting in my seat, declined to decide potential hypothetical cases.

    I can tell you about the U.S. v. Nixon precedent. And I did about Chief Justice Burger's role in forging a unanimous opinion. And really all the justice worked together on that. But Chief Justice Burger, who had been appointed by President Nixon, appointed by President Nixon, writes the opinion in U.S. v. Nixon 8-0 — Rehnquist was recused — 8-0 — ordering President Nixon to disclose the tapes in response to a criminal trial subpoena.

    A moment of crisis argument — argument, I think July 8, 1974, they decided two weeks later, a really important opinion, moment of judicial independence, important precedent of the Supreme Court. But how that would apply to other hypotheticals, I best, as a sitting judge and as a nominee, follow the precedent of the nominees who've been here before, and, as a matter of judicial independence, not give you a precise answer on a hypothetical that could come before me.

  • Sen. Dianne Feinstein, D-Calif.:

    I understand. Thank you very much for being forthcoming. I appreciate it.

  • Brett Kavanaugh:

    Thank you.

  • Judy Woodruff:

    The Kavanaugh hearing is still under way. It will be for several more hours.

    But Lisa Desjardins, our Capitol Hill correspondent, joins us now from the Capitol.

    And we get perspective from three people who follow the high court closely.

    "NewsHour" regular Marcia Coyle is the chief Washington correspondent for "The National Law Journal." Jamil Jaffer clerked for Justice Neil Gorsuch and worked in the Justice Department on the nominations of Chief Justice John Roberts and Justice Samuel Alito. And Neal Katyal, he served as acting U.S. solicitor general under President Obama and as a clerk for Justice Stephen Breyer. He joins us from New York.

    Welcome to all of you.

    As we said, Marcia Coyle, this hearing is still under way, but I just want to quickly — there's so much here to cover, because they went on for hours and hours today.

    On the question of guns, the nominee, Judge Kavanaugh, is relying on — says in his statement that what — that using assault weapons — banning assault weapons is unconstitutional, he said he was relying on precedent.

    So are we now clear or where he stands on guns?

  • Marcia Coyle:

    Well, I think we're clear in terms of his dissenting opinion in the gun case that came before his court out of the District of Columbia.

    He dissented in that opinion. So the majority disagreed with his view of how to apply the court's landmark decision in Heller that found an individual's right to possess a gun in the home for self-defense. He said that he was applying Heller the way he understood it.

    Senator Feinstein disagreed with his view of whether you can ban semi-assault rifles and guns, and the registration requirements as well for the District of Columbia. So we — I think we know where he stands, but whether the Senate Democrats accept his version of how to interpret Heller, I doubt that the — that he was — they were persuaded by it.

  • Judy Woodruff:

    Jamil Jaffer, I can ask you about that. But I also want to ask about the other part of what we just heard, and that is the comments of Senator Feinstein attempting to pin Judge Kavanaugh down on presidential powers.

    This came up also later in the afternoon, when senators were asking him about whether a sitting president can be indicted, subpoenaed and so forth.

    Do we have a better understanding of his views on those questions?

  • Jamil Jaffer:

    Well, I think we now understand sort of his perspective on how the court ought to look at these questions, and that judges need to be independent, and that they're not beholden to the president who appointed them or the president more generally, that their role is to stand out from and stand apart from that and to look the law as applied to that particular individual in that particular circumstance, and decide it on the merits.

    He lauded Chief Justice Burger, talking about his role as a Nixon appointee, and still standing up to executive power there. He talked about the Youngstown case and how the court there stood up to another assertion of executive power. He named four cases, two of which responded to executive power concerns, one of which responded to a concern about — about what states were doing with respect to racial discrimination.

    And so you see him describing his view of the court and the role of a judge and a justice as being independent from the political system and deciding cases on the law, not on their own personal politics, or on the politics, or personality of the person that appointed them.

  • Judy Woodruff:

    Neal Katyal, comment on that and on the section that we just heard with the exchange with Senator Feinstein, whether it's on guns, on assault weapons, or on presidential powers.

  • Neal Katyal:

    Well, Judy, yesterday, you and I talked about how this is the most consequential Supreme Court hearing and nomination really in our lifetimes, because it is to replace Justice Kennedy's seat, the swing seat.

    And yesterday we didn't really get too much of a sense of Judge Kavanaugh, because all we had was a prepared statement by him and a lot of skirmishing about other things.

    But, today, we started to get that. And I think the first interchange you played, which was about guns, I think Marcia set it up exactly right. The one thing I would add, though, is that President Trump wanted someone who is very pro-guns. And he got it in this nominee.

    I mean, Judge Kavanaugh's opinion, the one that Marcia is referring to, is one in which he dissented and said there is a right to semiautomatic rifles. That's something the Supreme Court had never said. And indeed his two Republican nominated colleagues on his own court, the D.C. Circuit, including Doug Ginsburg, who was President Reagan's nominee, said, oh, no, the Second Amendment doesn't require that.

    So you have got a view of the Second Amendment that's really far outside of the mainstream in Judge Kavanaugh. But that's, of course, what President Trump campaigned on, on what he wanted.

    But then, with respect to the other question that you're asking, which is about pardons and all the stuff that came up today, it was extraordinary to hear in a Senate Judiciary Committee hearing talk about whether the president can pardon himself, can he be indicted, can he be subpoenaed?

    That just shows, I think, where we are in 2018, given the nominator here, President Trump, who's facing any number of problems, including being fingered by his own personal counsel, Michael Cohen, as implicated in some crimes.

    I think Judge Kavanaugh did what every nominee did with — does with respect to those questions, which is dodge and weave them. He gave, I thought, a very professional, as expected, a kind of very learned appearance today, but I don't think we learned too much about his stance on those questions.

  • Judy Woodruff:

    All right, I want to go to our Lisa Desjardins.

    But, first, I want to play for all of you who are watching, this is a look at another exchange. This was Republican senator Orrin Hatch of Utah raising Judge Kavanaugh's record on hiring women and then the broader issue of sexual harassment in the judiciary.

  • Sen. Orrin Hatch, R-Utah:

    Why do you believe it important to encourage young women lawyers and to ensure that both men and women are well represented in the legal profession?

  • Brett Kavanaugh:

    I have been very aggressive about hiring the best and understanding that the best include women. And, as you say, Senator, a majority of my clerks have been women, 25. I believe 21 of them have gone on to clerk of the Supreme Court.

    And they're — they're an awesome group. And if confirmed to the Supreme Court, I will continue to do this. Those positions are very important launching pads for the next generation of leaders, the people who will be sitting in these seats, the people who will be sitting in my seat.

  • Sen. Orrin Hatch, R-Utah:

    Late last year, allegations against former Ninth Circuit Judge Alex Kozinski surfaced when The Washington Post published an article detailing disturbing allegations of misconduct by the judge.

    You clerked for Judge Kozinski for one year in 1991-1992. Did you know anything about these allegations?

  • Brett Kavanaugh:


    No woman should be subjected to sexual harassment in the workplace ever, including in the judiciary. This is part of a much, much larger national problem of abuse and harassment. And one of the things we have learned is, we need better reporting mechanisms. Women, particularly in the workplace, need to know, if they're the victim of harassment, where to report it immediately, who to report it to.

    They need to be known — know that there will be safe if they report it. They need to have a safe working environment, and be safe, if they report, they won't be retaliated against, and they will be protected if they report it.

  • Judy Woodruff:

    And from that, I want to show you now another piece of Judge Kavanaugh's testimony.

    This is where Democratic Senator Patrick Leahy of Vermont essentially grilled him on the president's right to pardon.

  • Sen. Patrick Leahy, D-Vt.:

    You said everyone agrees the pardon power gives a president absolute, unfettered, unchecked power to pardon every violator of every federal law.

    Could the president issue a pardon in exchange for a bribe, yes or no?

  • Brett Kavanaugh:

    Senator, I think that question has been litigated before. And I don't — I don't want to comment about anything…

  • Sen. Patrick Leahy, D-Vt.:

    Well, let me ask you this. Could a president…

  • Brett Kavanaugh:

    … about the scope of a pardon.

    I don't want to — the scope about — there a couple — there are a couple things involved in that question. One is, what's the scope of it? What's the effect of a pardon? And the other question is, can you be separately charged with the bribery crime, both the briber and the bribee?

    And those are two distinct questions. You would want to — you want to keep those two questions separate in thinking about how the hypothetical…

  • Sen. Patrick Leahy, D-Vt.:

    President Trump claims he has an absolute right to pardon himself. Does he?

  • Brett Kavanaugh:

    The question of self-pardons is something I have never analyzed. It's a question that I have not written about. It's a question, therefore, that's a hypothetical question that I can't begin to answer in this context, as a sitting judge and as a nominee to the Supreme Court.

  • Sen. Patrick Leahy, D-Vt.:

    And the other half of that is the obvious one. Does a president have the ability to pardon somebody in exchange for a promise from that person they wouldn't testify against him?

  • Brett Kavanaugh:

    Senator, I'm not going to answer hypothetical questions of that sort.

  • Judy Woodruff:

    As you can see, one important question after another.

    Our Lisa Desjardins at the Capitol.

    Lisa, we know a number of these Democratic senators have said at the outset — or going into this hearing they were not going to vote for Judge Kavanaugh's confirmation. What are you hearing from them and about their reaction to what he's saying?

  • Lisa Desjardins:

    Well, that's right.

    I think Democrats feel like he is holding up the notion that this is a judge who will potentially overturn some of the settled law, what they see as settled law, and especially on big issues that are recent, Judy.

    I hear a lot from Democrats about the Affordable Care Act in particular. There's a case in Texas right now, as Marcia and your guests know about, that could be before the Supreme Court with a potential Justice Kavanaugh on it.

    And so these are questions for the Democrats, for sure. But, as you say, most of the Democrats on this panel have decided they are no-votes for Mr. Kavanaugh.

    What was interesting today, Judy, is who wasn't in the room, the undecided key votes, Senators Collins and Murkowski on the Republican side, Senators Heitkamp, Manchin, and Donnelly on the Democratic side? What were they doing?

    I know, from Senator Collin's office, she had the television on all day. She's getting regular updates on this. When she's in other hearings, she's going over transcripts. So, really, their opinion is the one that matters more, not as much what we're hearing in the room.

    It wasn't as much of a sharp day, though, I think, Judy, as we expected it to be. I didn't get the sparks that Democrats said would fly today. Instead, in the room, it felt very serious and very intellectual.

  • Judy Woodruff:

    All right, Lisa.

    And I want to come back now to Marcia Coyle, because, Marcia, again, I mean, there are so many topics raised in these hearings, because there is so much to examine in the judge's — in the judge's record.

    One we are not going to have a chance to hear right now, and that has to do with questioning about his position on abortion. There was a young immigrant woman, a minor, 17 years old. Do we come away from that with a better understanding of the judge's position?

  • Marcia Coyle:

    Well, again, in a way, it's very much like the gun case. Ultimately, Judge Kavanaugh was dissent from his full D.C. Circuit panel in this particular case.

    He felt he was applying Supreme Court precedents having to do with minors who want to obtain abortions. But this young woman had done everything that the Supreme Court and the state of Texas required of her in order to have an abortion, and the majority felt that he was in the wrong in his interpretation of precedent.

    Judy, this was a very substantive day. And even though no sparks flew, I think the Democrats were able to raise the issues that they want people to hear about and think about in terms of this nomination. And the Republicans also were able to allow Judge Kavanaugh to talk more about who he is and how he approaches judging.

    So, in a way, it was sort of a successful day for everyone.

  • Judy Woodruff:

    Jamil Jaffer, how did — I mean, size up how you think Judge Kavanaugh did, with the Democrats trying to pin him down on these issues where they point to something he said in a speech or they point to something he wrote in an opinion?

    But he would come back and say, well, that isn't the end-all/be-all of where I would stand on this as a Supreme Court justice.

  • Jamil Jaffer:

    Well, Judy, I think — I think Neal is exactly right, which is to say that Judge Kavanaugh showed himself to be a good judge, a smart judge.

    And I think that what he was explaining was, look, in each of these cases, I was applying a certain set of facts to certain law and applying the precedent of the Supreme Court at the time, so that's why that case came out in this way, or that's why I said this.

    What a lot of times, people tried to do — and this has happened with every nominee to come before the Senate in modern history — is, well, what do you think about this particular scenario? Or how do you feel about this particular issue?

    And Judge Kavanaugh, like every prior nominee before him — he, in fact, reached back in what he calls nominee precedent. It's the first time I think I have heard that term used.

  • Judy Woodruff:


  • Jamil Jaffer:

    It's a great term, and I think accurate.

    A lot of people have cited nominee precedent, but haven't called it that. And he went back to Thurgood Marshall, and said even Thurgood Marshall, back that long ago, didn't answer these kind of hypothetical questions or tell you how he felt on a given issue, and then, of course, the standard Ginsburg rule of no forecasts, no hints, none of that, and the Kagan position, no thumbs up, no thumbs down.

    So this is a consistent trend of nominees. And so it's not unusual to see this happen. And so, of course, there's the general frustration that you won't answer a hypothetical. But you saw even Dianne Feinstein say, look, I get it. Thank you for being forthcoming, as forthcoming as you can in this context.

    So even she understands what's really going on here.

  • Judy Woodruff:

    Neal Katyal, how to use size up his ability either to be pinned down or not to be, depending on what questions he was being asked?

  • Neal Katyal:

    Well, I thought he did well in general.

    But as you think, Judy, about those key senators, and in particular Senators Collins and Murkowski, I do think that the abortion stuff today really does raise questions for them, because, initially, Senator Feinstein started by saying, will you overturn Roe and so on? And he was very good, like all nominees are, I believe in precedent and so on.

    But then, as Marcia said, the questioning turned from Senator Durbin to this Garza case about the undocumented immigrant. And there you saw something very different. You saw what really happens in hard Supreme Court cases, which is, there isn't a clear precedent one way or the other.

    How are you going to read a case like Roe? Or how are you going to read a case like Heller, the gun control case? To read it broadly or narrowly? And what Judge Kavanaugh's answers revealed is, this is effectively the judge that Donald Trump promised, which was a pro-life judge.

    He said that's what he campaigned on. And he was always consistent on pro-life, pro-life, pro-life, pro-life, pro-life, and then all of a sudden, there's a vacancy. And then all of a sudden, it's all quiet for a while.

    But the judge's record speaks for itself. And, again, he should be proud of that. I mean, and President Trump should be proud of it. That's what he campaigned for, and that's what it looks like he got, according to the answers today.

  • Judy Woodruff:

    And just finally, less than 30 seconds.

    Lisa Desjardins, give us a sense of the dissidents in the room, if you will, the people who came and sat as viewers, but who made noise and were asked to leave. There were dozens today.

  • Lisa Desjardins:

    That's right.

    I counted some 55 protesters. It was interesting. Initially today, Judy, the committee cut the public seating in half. Later in the day, after press inquiries, they resumed the full complement of the public.

    But there were many protests throughout the day, many issues raised by those protesters.

  • Judy Woodruff:

    Lisa, just give us a couple of them.

  • Lisa Desjardins:

    Oh, yes, absolutely, everything from health care to abortion to the disabled. We heard some of that.

    There was also a weird founding fathers strain. Very serious phrases uttered by these protesters, things like, "The American people have no faith in you, sir," or one protester shouted out, "Senators, in the name of democracy, I ask you to halt these hearings."

    So they were serious and angry, but there was really a level of kind of intellectualness about the protesters as well.

  • Judy Woodruff:

    Lisa Desjardins joining us from the Capitol.

    Thanks to all of our guests, Marcia Coyle, Jamil Jaffer, Neal Katyal. We thank you.

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