WASHINGTON — Senate Democrats mounted a last, ferocious attempt Thursday to paint Supreme Court nominee Brett Kavanaugh as a foe of abortion rights and a likely defender of President Donald Trump if he makes it to the high court. But their chances of blocking Trump’s nominee seemed to fade away by the end of a second marathon day of testimony in his confirmation hearing.
Questioning of the 53-year-old appellate judge wound down without him revealing much about his judicial stances or making any serious mistakes that might jeopardize his confirmation. In what almost seemed like a celebration, Kavanaugh’s two daughters returned to the Senate Judiciary Committee hearing room for the final hours of testimony, accompanied by teammates on Catholic school basketball teams their father has coached.
The hearing pivoted during the day to Roe v. Wade, the high court’s landmark abortion case. The Democrats’ best hope of stopping Kavanaugh — who could swing the court further to the right for decades — would be branding him as a justice who might vote to overturn the ruling, attracting the votes of two Republican senators who support abortion rights.
A newly disclosed email suggested he once indicated the abortion case was not settled law, though Kavanaugh denied in the hearing that he had been expressing his personal views on the issue.
The tone in the email from 2003 contrasted with his responses to questions on Wednesday when he stressed how difficult it is to overturn precedents like Roe. In the email, Kavanaugh was reviewing a potential op-ed article in support of two judicial nominees while he was working at the George W. Bush White House. The document had been held by the committee as confidential but was made public Thursday.
“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so,” Kavanaugh wrote, referring to justices at the time, in an email to a Republican Senate aide. The document was partially redacted.
Asked about it by the committee’s top Democrat, Dianne Feinstein of California, Kavanaugh reiterated his previous testimony that “Roe v. Wade is an important precedent of the Supreme Court.”
Won’t talk Trump
Kavanaugh refused to answer questions about Trump or commit to stepping aside from any case about the Russia investigation that might come to the Supreme Court. When Democratic Sen. Richard Blumenthal of Connecticut invited him to denounce Trump’s criticism of federal judges, the nominee demurred.
“The way we stand up is by deciding cases and controversies independently without fear or favor,” Kavanaugh said.
Much of the debate among senators has focused more on the disclosure of documents than on Kavanaugh’s record.
Sens. Cory Booker of New Jersey, along with Kamala Harris of California — both potential Democratic presidential candidates in 2020 — said he was willing to risk fallout over releasing confidential documents about Kavanaugh’s views on race. Republican John Cornyn of Texas warned him that senators could be expelled for violating confidentially rules. Democrats and Booker responded, “Bring it on.”
In fact, some of the documents the Democrats wanted disclosed had been released hours earlier, in a pre-dawn disclosure approved by Bill Burck, the GOP attorney who serves as presidential records lawyer for Bush.
“We were surprised to learn about Senator Booker’s histrionics this morning because we had already told him he could use the documents publicly,” Burck said by email. Booker had sought release late Wednesday, after questioning Kavanaugh on race and drawing rebuke from his colleagues for disclosing the confidential documents. They were made available after 3 a.m. Thursday.
Booker’s spokeswoman said by raising the issue publicly, the senator was able to “shame the committee into agreeing” to release the pages to the public.
Republicans hope to confirm Kavanaugh in time for the first day of the new Supreme Court term, Oct. 1.