6 takeaways from Day Three of the Kavanaugh hearings

By Amber Phillips, Washington Post–

More dramatic procedural battles. More mysterious questions about the special counsel. Very few doubts about the ultimate outcome: that President Trump’s pick to be the next Supreme Court justice, Judge Brett M. Kavanaugh, will probably get the job on a mostly party-line vote. Here are six takeaways from Day Three of several days worth of hearings. (Here are our takeaways from Day Two.)

1. Democrats stole the headlines.

On the first day, Democrats tried to stop the hearings before they got started. On the third day, they launched a full-on revolt.

Sen. Cory Booker (N.J.), soon joined by other Democrats, released documents he said were marked confidential. There’s some dispute as to whether, at the time Booker released an email chain of Kavanaugh talking about his views on racial profiling, they were actually still confidential. Aides on both sides of the aisle said they were set for release Thursday morning.

But the Democrats’ broader point came across loud and clear: They feel Republicans are trying to hide something about Kavanaugh by not making public tens of thousands of documents from his time as a lawyer in the George W. Bush White House.

They have a case that more documents were hidden from the public than needed to be. The confidential documents that have been released so far at Democrats’ request are either innocuous or directly relevant to how Kavanaugh would think through cases as a Supreme Court justice. Democrats are also skeptical because a Bush lawyer is vetting what gets made public, not the neutral National Archives agency, which said its document review wouldn’t finish until October.

2. Kavanaugh’s political career is his biggest hang-up.

A 2002 email shows Kavanaugh, then working for Bush, proposing a controversial, anti-Roe v. Wade judge for a federal court. But two years later in his own confirmation hearing to be a federal judge, Kavanaugh said this of Appeals Court Judge William H. Pryor Jr: “I was not involved in handling his nomination.” Kavanaugh, writes The Fix’s Aaron Blake, has some explaining to do on this discrepancy.

A 2003 email released Thursday shows he advised against referring to Roe v. Wade as the “settled law of the land,” pointing out that some legal experts don’t think the 1970s case legalizing abortion is totally settled. Kavanaugh explained to senators on Thursday that he was sharing legal experts’ opinions, not his own.

© Jacquelyn Martin/AP Sen. Cory Booker (D-N.J.) next to Sen. Kamala Harris (D-Calif.) on Wednesday. (AP Photo/Jacquelyn Martin)And Sen. Richard J. Durbin (D-Ill.) continued to try to argue that Kavanaugh gave misleading testimony in the 2006 confirmation hearings when Kavanaugh said he had no involvement in developing Bush-era torture programs. Durbin has found Kavanaugh’s name popping up in several instances of conversations about the program; Kavanaugh maintains he answered the question correctly as he understood it.

“You say that words matter,” Durbin scolded him. “Why is it so difficult for you to acknowledge your response to the question and acknowledge that at least your answer was misleading, if not wrong?”

The outrage over Kavanaugh’s political past is one-sided. Republicans on the committee showed no qualms with any discrepancy between what Kavanaugh wrote then and has said now.

3. Kavanaugh didn’t convince any Democrats on his abortion stance.

It seems as if he came into this hearing with the goal of his critics’ concerns that he would immediately vote to make abortion illegal. It didn’t seem to work.

Kavanaugh repeatedly said the landmark case is settled law, but he left wiggle room to rule against abortion advocates once on the court. He refused to say that the case legalizing abortion was correctly decided, even as he went out of his way to say other decades-old cases, like the 1970s presidential powers case in U.S. v. Nixon, were correct.

“It’s just now that Roe is 45 years old,” said a frustrated Sen. Amy Klobuchar (D-Minn.). “Why is that not a thumbs up?” Kavanaugh responded that none of the eight justices on the court now would go that far in their confirmation hearings about this case, so why should he?

For anyone who worries that Kavanaugh would vote to overturn legalized abortion, there’s plenty in his past writings and statements and court rulings to be concerned about. We know what key Democrats have come to conclude. What will two swing-vote Senate Republicans read into this?

4. Kavanaugh also didn’t win over any Democrats on how he’d rule on cases involving Trump.

Kavanaugh knows the political powder keg his nomination sits on. He could be on a Supreme Court that decides whether the president can be subpoenaed in the special counsel’s investigation into Russian election interference. His strategy was to avoid commenting on anything remotely related to Trump while emphasizing how much he values an independent judiciary.

“Some of the greatest moments in Supreme Court history have been those moments of judicial independence in political crisis,” Kavanaugh said.

But as with abortion, there’s plenty in Kavanaugh’s past that has his critics concerned. Even Sen. Jeff Flake (R-Ariz.), who seems inclined to vote for Kavanaugh, said he was puzzled by Kavanaugh’s insistence he was just spitballing when he wrote in 2009 that criminal investigations into presidents aren’t in the public interest.

5. A mystery remains: Why do Democrats keep asking Kavanaugh about his conversations on the special counsel?

Late Wednesday night, Sen. Kamala D. Harris (D-Calif.) led Kavanaugh through a cat-and-mouse-like game of questioning about whether the judge had any conversation with anyone who worked at Trump’s lawyers’ firm about special counsel Robert S. Mueller III. Kavanaugh had trouble answering the question, in part because she wouldn’t explain who she was referring to, all while hinting strongly she knew something no one else did.

Little was clarified after Harris got a second term to ask Kavanaugh questions. “No,” Kavanaugh said of whether he had any conversations with a law firm connected to Trump about this.

It’s possible this aggressive line of questioning was part of a broader goal among Senate Democrats to raise suspicions about the circumstances surrounding Kavanaugh’s nomination. Trump has been accused of asking for loyalty from his top officials. Did he ask anything of the same of Kavanaugh?

“It is understandable for people to suspect that there is something going on,” Booker said, “that somehow this is rigged.”

“I promise you that I have an open mind,” Kavanaugh said about how he’d rule on any legal issues involving the president. Kavanaugh would not say if he’d recuse himself on issues surrounding this president.

6. The 2020-ers are definitely getting noticed

Booker. Harris. Klobuchar. These are all names mentioned in our roundup because they asked some of the buzziest questions. They’re also all potential contenders to challenge Trump in 2020. At times, some of these senators were melodramatic: Booker dared Senate Republicans to expel him from the Senate over the document battle, for example.

But they did accomplish one very important thing for a would-be president: Get noticed.