Kavanaugh: Can't answer about presidential power

In response to a question by Sen. Dianne Feinstein (D-CA), President Donald Trump's Supreme Court nominee Brett Kavanaugh says he "can't answer" whether a sitting president must respond to a subpoena.

Posted: Sep 6, 2018 4:37 AM
Updated: Sep 6, 2018 4:56 AM

Supreme Court nominee Brett Kavanaugh frustrated Democrats trying to thwart Donald Trump's generational restocking of the high court, refusing to engage Wednesday on the controversial questions of presidential power and abortion.

Over and over, Kavanaugh, who did not divert from his talking points and has been calm and disciplined during a long day of scrutiny, argued that judges must be independent and must confine their rulings to precedent. But his answers have done little to sway the fears of Democrats who say his nomination needs extra scrutiny since the President who nominated him has repeatedly challenged the conventions of his office.

"No one is above the law in our constitutional system," Kavanaugh said, hoping to defuse some of those concerns, adding that the presidency was not a monarchy.

But he refused to be drawn in by Democrats into treacherous political areas. He declined to say if a sitting president must respond to a subpoena and would not budge when asked whether a president could pardon himself.

"The question of self pardons is something I have never analyzed, it is a question I have not written about, it's a question therefore that is a hypothetical question that I cannot begin to answer in this context as a sitting judge and as a nominee to Supreme Court," Kavanaugh said.

Trump earlier this year claimed he had an "absolute" right to pardon himself should he choose to.

Kavanaugh could at some point be called upon to rule on a challenge related to special counsel Robert Mueller's investigation of Russian interference in the 2016 election. Senate Democrats have suggested that he could be biased in favor of the President and worry that his views on the primacy of executive power could help Trump evade legal scrutiny.

When asked whether a sitting President should be forced to respond to a subpoena, Kavanaugh said, "My understanding is that you're asking me to give my view on a potential hypothetical, and that is something that each of the eight justices currently sitting on the Supreme Court, when they were sitting in my seat, declined to decide potential hypothetical cases."

Abortion and Gun Control

On the second day of his confirmation hearing, Kavanaugh has faced tough cross examinations from Democrats under pressure from grassroots activists to show vigorous resistance to Trump's nominee.

The first Democrat to question Kavanaugh was California Sen. Dianne Feinstein who cross examined him about his views on abortion and gun control.

Kavanaugh said that he viewed the 1973 Roe v Wade decision upholding a woman's right to an abortion as settled precedent of the Supreme Court under the doctrine of stare decisis.

Roe v. Wade is "entitled to respect" he said, adding that he understands the passion around the decision.

"I don't live in a bubble. I understand. I live in the real world. I understand the importance of the issue," he said.

But Feinstein, raising doubts that the nominee's position would hold if he came to rule on abortion from the Supreme Court bench said: "When the subject comes up, the person says we will follow stare decisis, and then they get confirmed and they don't," she said.

Feinstein also chose to drill down on gun control and school shootings, asking him to explain his dissent in a 2011 DC Circuit case upholding the District of Columbia's ban on the possession of most semi-automatic rifles.

Kavanaugh argued that his reasoning was based on the Supreme Court's majority decision in the Heller case, that held that semi-automatic rifles were constitutionally protected.

While decrying gun violence and sympathizing with Feinstein's horror over school shootings, Kavanaugh said, "I understand the issue, but as a judge, my job was to follow the Second Amendment opinion of the Supreme Court whether I agree with it or disagree with it."

Tuesday's testimony was frequently interrupted by protestors who were led screaming out of the hearing room. But the proceedings lacked the bitterness and partisan sniping that characterized the opening day of the hearing on Tuesday.

Democrats are under pressure to show their voters that they have the backbone to challenge the administration and also want to make clear to their voters the huge stakes of getting out to vote -- since the GOP victory in 2016 gave Trump the chance to significantly tug the Supreme Court to the right, possibly for decades.

The President himself said that he was pleased with Kavanaugh's performance so far, saying he was "born for the position."

"I watched today for a little while. I saw some incredible answers to some very complex questions," Trump told reporters.

Has support from Manchin, GOP senators

In order to stop Kavanaugh from being confirmed, Democrats must keep their entire coalition together in the Senate and hope to pick off two Republicans, with the most likely options Alaska Sen. Lisa Murkowski and Susan Collins of Maine.

But there is also the chance that some Democrats, facing tough re-election races in states that Trump won handsomely in 2016, will be forced by their own hopes of political survival to vote for Kavanaugh.

One potential Democratic defector, Sen. Joe Manchin of West Virginia, told CNN that he has so far seen nothing disqualifying so far in the nominee's testimony.

"He's handled himself very professionally. ... His dialogue is more specific in his approach to being a jurist," Manchin said, adding that he felt the behavior of Republican and Democratic senators in the hearing had been deplorable. "That's what makes people sick," he said.

Republicans, meanwhile, remain confident. Kavanaugh has not only testified twice before, he worked on judicial nominations while serving in the George W. Bush White House. He understands the process better than most. He's been participating in "murder boards" -- practice sessions -- with clerks and Justice Department lawyers taking on the roles of senators, according to a participant.

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