Emotions high as Kavanaugh begins fight for confirmation

 

WASHINGTON (AP) — Conservative Supreme Court nominee Brett Kavanaugh plunged into his confirmation battle Tuesday, meeting face-to-face with Senate leaders in what promises to be an intense debate over abortion rights, presidential power and other legal disputes that could reshape the court and roil this fall's elections.

Kavanaugh is a favorite of the GOP legal establishment, and his arrival as President Donald Trump's nominee was greeted on Capitol Hill with praise from Republicans and skepticism from Democrats. There were also pledges of open minds by key senators whose votes will most likely determine the outcome.

Majority Leader Mitch McConnell of Kentucky called Kavanagh "one of the most thoughtful jurists" in the country but warned of an onslaught of "fear mongering" from liberal groups trying to derail the nomination. He said it was clear that many Democrats "didn't care who the nominee was at all. Whoever President Trump put up they were opposed to."

Chuck Schumer, the Senate's Democratic leader, said his party's lawmakers did indeed care who the nominee was — and what his views were on such thorny issues as abortion and Trump himself.

Trump "did exactly what he said he would do on the campaign trail — nominate someone who will overturn women's reproductive rights," the New York senator said.

He also argued that the president chose the man he thought would best protect him from the investigation by special counsel Robert Mueller into Russian interference in the 2016 election. Kavanaugh has written about a need to free the executive branch from intrusive criminal investigations.

"Not only did Mr. Kavanaugh say that a president should not be subpoenaed, he said a president shouldn't be investigated," Schumer said.

The confirmation marathon is expected to drag on for months, and no date has yet been set for hearings. GOP leaders, with a slim majority in the Senate, are anxious to have Kavanaugh in place for the start of the court's session in October — and before the November congressional elections.

But that may be a tall order. His confirmation is complicated by an unusually long record as an appellate judge and as a George W. Bush administration official — and also his role as part of the Kenneth Starr investigation of President Bill Clinton.

Kavanaugh, just 53, could serve on the high court for decades.

As he arrived on Capitol Hill Tuesday, he huddled with McConnell, Vice President Mike Pence and former Sen. Jon Kyl. He also met with Sen. Chuck Grassley of Iowa, chairman of the Judiciary Committee, which will determine whether to recommend him to the full Senate.

McConnell, who has been influential in shaping Trump's remaking of the judiciary, said, "What we'd like to see is a few open minds about this extraordinary talent."

Grassley said a speedy confirmation wasn't necessarily the goal. The vetting process, he said, is "going to be thorough and going to be done right." Pence told reporters that Kavanaugh was a "good man."

Republicans have little margin of error for the final vote unless a few Democrats can be brought onboard. McConnell has a 51-49 Senate majority, narrowed further by the absence of ailing Sen. John McCain of Arizona. But they hope to gain support from a handful of Democrats who are up for re-election in states where Trump is popular.

So far, Democrats are uniting behind a strategy to turn the confirmation fight into a referendum on conservatives' efforts to undo abortion access, chip away at health care protections under the Affordable Care Act and protect Trump from Mueller.

Senators will be seeking access to Kavanaugh's writings and correspondence, reams of documents that will take weeks to compile and even longer to review, giving opponents ample opportunity to wage a political battle. Protesters have filled the steps of the Supreme Court in recent days.

By fall, the nomination may turn on a handful of senators who will be under enormous pressure ahead of the midterm elections.

The Democrats are trying to pressure two Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, to oppose any nominee who threatens the Roe v. Wade Supreme Court decision. The two have supported access to abortion services, and activists have already begun sending wire coat hangers, as a symbol of an era when abortion was illegal, to Collins' office.

She said that with Kavanaugh's credentials, "it's very difficult for anyone to tell me that he's not qualified for the job." But she added that other issues also would come into play for her, including "judicial temperament" and "judicial philosophy."

Murkowski said, "We've got some due diligence that we've got to do."

At the same time, Republicans are urging a half dozen Democratic senators, largely those who are up for re-election in Trump-won states, to back the president's choice.

Among their targets are Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia, as well as Doug Jones of Alabama, who is not up for re-election but represents a conservative state in the Deep South.

Kavanaugh in the past has made statements about respecting precedent that could help in winning over senators, particularly Murkowski and Collins.

In his 2006 confirmation hearing to become a federal judge, he said, "I would follow Roe v. Wade faithfully and fully" because it's "binding precedent" that has been "reaffirmed many times."

Yet there's little doubt that Kavanaugh, a solidly conservative, politically connected judge, would shift the nation's highest court further to the right.

A product of the Republican legal establishment in Washington, Kavanaugh is a former law clerk for retiring Justice Anthony Kennedy. Like Trump's first nominee last year, Justice Neil Gorsuch, Kavanaugh would be a young addition who could help remake the court for decades with rulings that could restrict abortion, expand gun rights and roll back key parts of" Obamacare."

Trump unveiled his pick showbiz style, in a suspense-filled prime-time televised announcement Monday evening. He called Kavanaugh "one of the finest and sharpest legal minds of our time."

"Brett Kavanaugh has gotten rave reviews — rave reviews — actually, from both sides," Trump said Tuesday, a stark mischaracterization of Democrats' comments, as he left the White House for a weeklong overseas trip. "And I think it's going to be a beautiful thing to watch over the next month."

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Associated Press writers Kevin Freking, Matthew Daly, Laurie Kellman, Catherine Lucey, Mark Sherman, Zeke Miller and Alan Fram contributed to this report.


 

Kavanaugh works Capitol Hill, Dems warn of rightward tilt

By LISA MASCARO AND MATTHEW DALY ,  Associated Press

WASHINGTON (AP) — Supreme Court nominee Brett Kavanaugh returned to Capitol Hill Wednesday for a whirlwind round of meetings with key Republican senators as Democrats ramped up efforts to block his confirmation.

Kavanaugh, the conservative appellate court judge President Donald Trump chose to replace retiring Justice Anthony Kennedy, met separately with Republican Sen. Orrin Hatch of Utah, who called the judge "a very fine man," and was to confer with Sen. Lindsey Graham of South Carolina and other senators.

At Hatch's office in the Capitol, the senator told reporters he expects Kavanaugh's confirmation to go well.

"There will be the usual attempts to sully his reputation not only in the Senate but outside the Senate, but he'll be able to handle it and I have every confidence he'll be confirmed," Hatch said.

Hatch, who had conferred with Trump on the nominee, praised the president's choice. "I have no doubt he is going to be a great justice," he said.

Democrats, as the Senate minority, have few options to block Kavanaugh. But they warn that confirming him will tilt the court rightward, potentially rolling back women's access to abortion and undoing aspects of the Affordable Care Act.

Democrats are also raising red flags over Kavanaugh's writings that suggest investigations of sitting presidents are a distraction to executive branch leadership. They see that as concerning amid the ongoing special counsel probe of Russian interference in the 2016 election.

"The American people should have their eyes wide open to these stakes," said Sen. Chuck Schumer, D-N.Y., the minority leader.

Both sides have begun airing ads gearing up for a long summer confirmation battle that will stretch into fall. Republicans hope to have Kavanaugh confirmed by the start of the court's session in October, and before the midterm election.

No date has been set for confirmation hearings.


 

Kavanaugh's views of presidential power drawing questions

BY MARY CLARE JALONICK ,  Associated Press

WASHINGTON (AP) — Supreme Court nominee Brett Kavanaugh's past writings that a president should not be distracted by lawsuits and investigations could become a flashpoint in what's already shaping up to be a contentious confirmation battle.

With special counsel Robert Mueller investigating whether President Donald Trump obstructed justice, questions about whether a chief executive can be subpoenaed or indicted could potentially reach the Supreme Court. Though there's no indication at this point that will happen, it's sure to be a major topic of questioning at Kavanaugh's confirmation hearing as the Senate weighs whether to confirm him to replace retiring Justice Anthony Kennedy.

Democrats opposing Kavanaugh are already weighing in, saying the past writings — particularly a legal article he wrote on the separation of powers in 2009 — suggest he would be inclined to side with Trump.

Senate Democratic leader Chuck Schumer said Tuesday that he "seems exactly like the kind of man President Trump would want on the Supreme Court if legal issues from the Mueller probe arise."

A look at Kavanaugh's past statements on presidential powers:

INVESTIGATIONS AND LAWSUITS INVOLVING THE PRESIDENT

Kavanaugh was a key player in the investigation that led to President Bill Clinton's impeachment, but a decade later he wrote that the experience, coupled with his time working for President George W. Bush, had persuaded him that presidents should not have to face criminal investigations, including indictments, or civil lawsuits while they are in office. He said Congress should pass a law temporarily protecting presidents from such distractions in office.

Clinton, for example, "could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots," Kavanaugh wrote in the 2009 Minnesota Law Review article.

If applied on the court somehow, those opinions could have a direct impact on Trump, who has also been dogged by allegations of sexual harassment.

In the Russia probe, it's theoretically possible the court could have to weigh in on the question of whether a president is immune from criminal prosecution. The Justice Department's Office of Legal Counsel, which provides guidance to executive branch agencies, has said sitting presidents cannot be prosecuted while in office.

SUBPOENAING THE PRESIDENT

In addition to indictment, another issue tied to the Mueller investigation that has not been fully resolved in the courts is whether a sitting president must respond to a subpoena from investigators.

In the 2009 article, Kavanaugh wrote that Congress should also exempt the president from questioning by criminal prosecutors or defense counsel.

"Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting," he wrote, adding that a president concerned about an ongoing criminal investigation "is almost inevitably going to do a worse job as president."

Mueller hasn't indicated that he will move to subpoena the president, though his team raised the prospect with Trump's legal team in March and may do so if the president's lawyers refuse to make Trump available for an interview.

Clinton was subpoenaed in 1998 during the independent counsel's Whitewater investigation, though the subpoena was later withdrawn when Clinton agreed to voluntarily testify before the grand jury.

The Supreme Court has never definitively ruled on the question of whether a president can be forced to testify, though the justices in 1974 did rule that President Richard Nixon had to produce recordings and documents that had been subpoenaed.

FIRING THE SPECIAL COUNSEL

Trump has repeatedly criticized Mueller and the investigation on Twitter, raising concerns in Congress that he will move to fire the special counsel. The White House has asserted that Trump has the authority to fire Mueller, but only Deputy Attorney General Rod Rosenstein has the power to fire him under current regulations. Rosenstein appointed Mueller in May 2017 after Trump fired FBI Director James Comey.

In a 1998 article in the Georgetown Law Journal, Kavanaugh wrote that Congress should give the president the ability to fire special counsels, an opinion that Democrats have highlighted in the hours since he was nominated Monday evening.

Kavanaugh's reasoning, however, was not to protect presidents but to make them more accountable. He wrote that presidents can complain that independent counsels are politically motivated while implying they are powerless to do anything about it. Giving the president firing power would "force the president and his surrogates to put up or shut up."

Noting Nixon's resignation after firing Justice Department officials, Kavanaugh wrote that "history clearly demonstrates that the president will pay an enormous political price if he does not have a persuasive justification for dismissing a special counsel."

PLAYING POLITICS

Harvard Law professor Noah Feldman, who specializes in constitutional studies, on Tuesday warned Democrats not to overstate or misinterpret Kavanaugh's words. He argues that because Kavanaugh is suggesting Congress make new laws to exempt presidents from investigations or lawsuits, it's not the same thing as saying the courts should step in. Feldman suggests that Kavanaugh could even be implying that a president can be indicted, since he believes there should be a law preventing it.

"It's a mistake for Democrats to make this their main line of criticism," Feldman said.

Democrats showed little sign of heeding that advice Tuesday.

Sen. Cory Booker, D-N.J., said the Senate shouldn't consider Kavanaugh's nomination until the Mueller probe is finished.

"The president of the United States should not be beyond criminal investigations," Booker said.

But South Dakota Sen. John Thune, the Senate's No. 3 Republican, chalked the opposition up to "Democrat paranoia."

"It's part of their obsession with Russia, and the president," Thune said, noting that Kavanaugh wrote the article proposing presidential exemptions from lawsuits and investigations when President Barack Obama was in office.

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Associated Press writers Eric Tucker, Mark Sherman, Matthew Daly, Alan Fram and Rhonda Shafner contributed to this report.