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Live analysis: Senators spar over 'confidential' Kavanaugh documents on his third day of hearings

Los Angeles Times experts — including David Savage, who covers the Supreme Court; Sarah D. Wire and Jennifer Haberkorn, who cover Congress; David Lauter, The Times' Washington bureau chief; and Jackie Calmes and Edmund Sanders, Washington bureau editors — hold a real-time discussion of the Senate confirmation hearings for Brett Kavanaugh, President Trump's nominee to the Supreme Court.

David Lauter

We hope you all have found this live analysis of the hearing useful and interesting. Thanks for reading.

Sarah D Wire

He also didn't make any real news, which is any nominee's goal

Jennifer Haberkorn

Kavanaugh has to feel relieved. He didn't make a big flub and the hardest part is over.

Sarah D Wire

Tomorrow the senators will also hear from the American Bar Association, which has rated Kavanaugh "well qualified,"

David Lauter

Tomorrow, the committee will hear from public witnesses, pro and con.

David Lauter

That's the end of the public questioning. The committee is next going to go into a closed session, as they typically do.

Sarah D Wire

Capitol Police arrested 212 people protesting inside or just outside the Kavanaugh confirmation hearings this week. That breaks down as 70 Tuesday, 73 Wednesday and 69 Thursday. The bulk of the charges were D.C. Code §22–1321 - Disorderly Conduct or D.C. Code §22-1307 - Crowding, Obstructing, or Incommoding. (Both are misdemeanors)

David Lauter

Kavanaugh says that so long as those laws remain on the books, they need to be enforced.

David Lauter

Harris goes on to ask about how the Civil Rights Act of 1964 would be enforced if the government no longer recognized racial categories.

Sarah D Wire

It was actually at Howard when Harris interned in Sen. Alan Cranston's office... the office she now sits in every day as U.S. senator

David Lauter

"If we reach this point," would the government no longer provide federal money for historically black colleges, Harris asks.

Sarah D Wire

Harris graduated from Howard University, a historically black university, or HBCU

David Lauter

Harris now turns to how the court handles questions of racial discrimination. In the past, Justice O'Connor, among other justices, have said that affirmative action is justified as a temporary remedy, but after some period of time -- O'Connor suggested 25 years, perhaps -- it wouldn't be necessary any more. Harris is asking whether five justices ought to be making the decision on when the U.S. has reached racial equality.

David Lauter

Sen. Harris asks if the doctrine of proprietorial discretion would allow the president to target his enemies. As he's done before, Kavanaugh says he needs to stay "three zip codes away" from politics.

Sarah D Wire

They are on track to go longer today than the 13 hours they peppered Kavanaugh with questions yesterday. Sen. Harris is still supposed to have one more chance to have questions and the committee still gets to question Kavanaugh in closed session

David Lauter

Sen. Flake, by contrast with Sen. Grassley, says that he opposes cameras in the Supreme Court. They would "politicize" oral arguments, he says. "I don't think it is in our interest to bring the element of politics any closer to our judiciary," he says.

David Lauter

As he said to Sen. Blumenthal, Kavanaugh says he appreciates Booker's perspective.

David Lauter

"We have a system that seems to be shifting away" from the rights of defendants, Booker says.

David Lauter

Kavanaugh had written that Rehnquist made the criminal law "more workable." Booker says his question is "workable for who?"

David Lauter

Booker turns to Kavanaugh's praise of former Chief Justice Rehnquist in correcting, as Kavanaugh put it, the "wrong turns" the Supreme Court took during the Warren era.

Sarah D Wire

Booker asks if Kavanaugh has performed a same-sex marriage, was interesting that he didn't follow with "would you?"

David Lauter

"There was debate in the White House" about the idea, Kavanaugh says. But he says he doesn't recall whether he had an opinion of his own. "I apply the law," he repeats.

David Lauter

Booker is now asking about Kavanaugh's role during the Bush administration when President Bush was considering backing a constitutional amendment to ban same-sex marriage.

Edmund Sanders

Kavanaugh won't answer about gay people because he says the issue of employment discrimination against gays and lesbians could come before the court.

Edmund Sanders

First asked if it would be wrong to fire someone because of the color of their skin. Then moved to firing a gay person.

Edmund Sanders

Booker seems to setting a trap, and Kavanaugh senses it

David Lauter

Sen. Booker is now up.

David Lauter

"There are a lot of ads by groups," Kavanaugh says, repeating that he's an "independent judge."

David Lauter

Kavanaugh could be the fifth vote to overturn previous cases that upheld gun laws, she says, noting that the NRA has said precisely that in its advertisements.

Sarah D Wire

The Judicial Crisis Network, which advocates for conservative judges and has been a big booster of Kavanaugh, is urging the vulnerable red state senators to announce they back Kavanaugh. "Senators Manchin, Heitkamp, Donnelly and other red state Democrats should distance themselves from this extremist behavior. There is no reason to wait. They should buck the extremist wing of their Party and announce they are voting to confirm Judge Kavanaugh,” says Chief Counsel and Policy Director, Carrie Severino

David Lauter

The point Hirono appears to be driving toward is that if five justices could overturn a precedent in Janus, then there's no reason that with Kavanaugh on the court, five conservative justices couldn't overturn other precedents.

Jennifer Haberkorn

We’re slowly reaching the end of the hearing.

I didn’t hear anything this week that is likely to sway the votes of the five senators whose votes are considered up for grabs – GOP Sens. Lisa Murkowski and Susan Collins, who support abortion rights and red-state Democratic Sens. Heidi Heitkamp, Joe Donnelly and Joe Manchin, who broke ranks to support Trump’s first Supreme Court nominee. Democrats definitely landed some blows, but I don’t think it’s enough to worry any of them too much – or at least not enough of them to put confirmation at risk. If Democrats have any chance of defeating Kavanaugh, they would have to keep all 49 of their Democrats opposed and get “no” votes from Collins and Murkowski.

David Lauter

Sen. Hirono is making the point that Janus, this year's public-employee union case, demonstrates that five justices can overturn a precedent, even if people have relied on it for years.

Sarah D Wire

He says it's too recent a decision to comment on

Sarah D Wire

Sen. Mazie Hirono asks if Kavanaugh if he agrees with the Janus decision

Sarah D Wire

Back again. We can see the home strech

Sarah D Wire

A quick five minute break after some emotional questions from Blumenthal

David Lauter

Blumenthal says that Kavanaugh is "out of touch" with the "real world" and that his position on guns is overly permissive.

Sarah D Wire

Sen. Blumenthal of Connecticut is asking about assault weapons and Kavanaugh's Heller opinion

David Lauter

Kavanaugh's view -- shared by many other conservative lawyers -- is that federal agencies have a tendency to expand their jurisdictions over time and federal courts have to keep them on a tighter rein.

Sarah D Wire

David Savage wrote a great indepth piece explaining this http://www.latimes.com/politics/la-na-pol-kavanaugh-environment-20180723-story.html

David Lauter

Under Chevron v. Natural Resources Defense Council, which was decided in 1984, courts are supposed to defer to agencies when the agencies interpret the statutes that they're charged with administering.

David Lauter

It's a technical topic, but the fundamental question is "who gets to decide?"

David Lauter

Sen. Klobuchar is asking a series of questions about Kavanaugh's view of the Chevron case -- the case that sets the basic groundwork for how courts review decisions by federal regulatory agencies.

Sarah D Wire

At nearly 24 hours of questioning we've gone past getting into the weeds

Sarah D Wire

It was a 4th Amendment joke about not having a warrant needed to search Kavanaugh's phone

Jennifer Haberkorn

Mike Lee asks why Kavanaugh is writing his notes with a big Sharpie. Kavanaugh says it is so that he can see it. All of the middle-age-plus (and plus-plus) senators laugh.

Jennifer Haberkorn

Whitehouse had asked whether Leonard Leo (of the Federalist Society and a key Trump whisperer) was in his phone

Jennifer Haberkorn

I think Mike Lee just made a wonky legal joke about how Sen. Whitehouse is not allowed to ask about what is on Kavanaugh's phone.

Sarah D Wire

The committee just entered hour 11 of today's hearing. Yesterday they met for 13 hours.

David Lauter

Kavanaugh has noted several times that Justice Kagan has cited Glucksberg as a major precedent.

David Lauter

The reason Sen. Coons is asking Kavanaugh about Glucksberg is that it set up a test for deciding when the court would recognize a right as being protected by the Constitution. The decision, by former Chief Justice Rehnquist,  sets out a more conservative test than some earlier decision of the Court. Democrats are concerned that it could be used to undermine other court decisions that have established constitution rights in areas like same-sex marriage and abortion.

Sarah D Wire

Here's a description of the Glucksberg case that Coons is referring to https://www.oyez.org/cases/1996/96-110

Sarah D Wire

He's asking about the speech referenced in this article by David Savage http://www.latimes.com/politics/la-na-pol-kavanaugh-rehnquist-20180711-story.html

Sarah D Wire

Sen. Coons of Deleware is up now

Sarah D Wire

This is a fascinating line of questioning

Sarah D Wire

Not sure that nickname will stick

Jennifer Haberkorn

Whitehouse calls Kavanaugh the “human torpedo” who is designed to blow up the Mueller investigation

Sarah D Wire

Sen. Whitehouse is up now. He had some direct questions for Kavanaugh earlier

Sarah D Wire

Don't let the aw shucks attitude fool you. Like I mentioned last night, Sen. Kennedy is probably the most highly educated lawyer in the room and he's tripped up nominees in the past

Sarah D Wire

Kavanaugh urges senators to read four things that none of them have brought up today, saying they'll give a better view of him. "I'm not someone who has an unduly expansive view" of executive power, Kavanaugh says

Sarah D Wire

That last protester had everyone in the room jumping. Not sure if you guys could hear it through the livestream

Sarah D Wire

Sen. Durbin is talking about Kavanaugh's positions on the 2nd Amendment and precedence

Sarah D Wire

And we're back for the final round of public questions.

Sarah D Wire

Third time Kavanaugh's been asked about cameras in the Supreme Court

Sarah D Wire

Sen. John Cornyn is talking with Kavanaugh about the responsibility Congress has delegated to federal agencies to implement federal law through regulations

Sarah D Wire

Even with just the Democrats speaking, that's another 80 minutes here

Sarah D Wire

The committee is going to do a third round of questions, Chairman Grassley says. Each senator gets 8 minutes and Grassley jokes that Republicans better not take their turns

Sarah D Wire

She herself joked that she's heard his answers before.

Sarah D Wire

A lot of items on that list others have asked about already (repeatedly). Such is the bane of being the least senior member of the committee

Jennifer Haberkorn

She's tried to get him to weigh in on a whole series of cases, including same-sex marriage, state abortion restrictions, immigrant children and a 20-week abortion ban. He has dodged on them all.

David Lauter

Harris is working through a long list of questions that Kavanaugh is declining to answer on the grounds that it would require him to comment on an issue that might come before him. She's compiling a long list, which she'll be able to cite later, of issues that he's refused to take a position on.

Sarah D Wire

15 minutes into Harris' 20 minutes and there has been no real fireworks

Sarah D Wire

Harris asks him to weigh on an 1889 case in which the Supreme Court said limits could be put on Chinese people entering the United States. It's not been directly overturned

Sarah D Wire

Harris moves on to separation of families at the border. Kavanaugh says he can't answer questions about pending cases.

David Lauter

Kavanaugh reads from Kennedy's opinion in the Masterpiece Cake shop case in which he wrote that the days of discrimination against gay and lesbians "are over." But he sticks to his position that he can't comment on the validity of a current case.

Sarah D Wire

Kavanaugh says he wont comment on modern cases

David Lauter

Harris now asks if Kavanaugh believes the decision establishing same-sex marriage rights was correctly decided.

Jennifer Haberkorn

One of the first questions on gay marriage. I'm surprised it hasn't come up more often.

Jennifer Haberkorn

He is drawing a line between mandatory recusals (such as when someone worked on a prior issue) and discretionary recusals.

David Lauter

"Discretionary recusal ... or non-recusal, as a commitment to get a job" would be a violation of judicial independence, he says.

David Lauter

Harris is now asking about whether Kavanaugh would commit to recusing himself in cases involving possible civil or criminal liability of Trump. He says no.

Sarah D Wire

Wednesday's exchange was a sharp line of questioning that took Kavanaugh off guard. Odd that it ended that way

Sarah D Wire

Harris wouldn't tell him who she thinks he had a meeting with

David Lauter

Kavanaugh now seems to put the issue to rest: "The answer is, no," he says.

Sarah D Wire

Over to Sen. Harris who says she has received "reliable information" that Kavanaugh had a conversation with a member of that law firm about the Mueller investigation

Edmund Sanders

Finally. Feels like he's been hoping someone would ask.

Sarah D Wire

Judge Kavanaugh has been fiddling with this pocket constitution for days. Finally a senator asks for the back story

Sarah D Wire

Kavanaugh says recusing himself without knowing the details of the case would be a violation of his independence as a judge

Sarah D Wire

"Why not now alleviate all of that suspicion that a reasonable person can have, why not recuse yourself?" Booker asks.

Sarah D Wire

This is a line of argument Booker has made almost since Kavanaugh was nominated

Sarah D Wire

Kavanaugh isn't willing to weigh in on President Trump's character, no matter how Booker asks. "I'm just wondering what kind of loyalty is required of you for this job,"  Booker said.

Sarah D Wire

You're right. I had that same thought about him voting

Sarah D Wire

Yesterday's hearing lasted 13 hours, this one has been going for nine hours. You can tell through his answers that Kavanaugh is tired and losing patience just a bit

Jennifer Haberkorn

I thought it was interesting that Kavanaugh said in the last round of questions that he doesn't vote in elections. He came close to saying that yesterday but didn't.

Jennifer Haberkorn

We're back. Sen. Cory Booker is up now.

Jennifer Haberkorn

Sen. Orrin Hatch is now getting in on the pictures.

Jennifer Haberkorn

Kavanaugh is taking a picture with the basketball team in front of the dais. I assume the team is going to get to practice on that basketball court above the Supreme Court.

Sarah D Wire

Especially for senators, after that third round of questions they will go into executive session and keep questioning Kavanaugh without cameras

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