WASHINGTON — Supreme Court nominee Brett Kavanaugh on Wednesday said, if confirmed, he would be an independent justice who would respect Roe v. Wade as a settled precedent and who would treat no one as above the law, even presidents.
On his first day of questioning by the Senate Judiciary Committee, Kavanaugh sought to declare his independence from President Donald Trump and rebut assertions by Democrats that the president chose him to overturn Roe and the Affordable Care Act and as a protector against special counsel Robert Mueller's investigation.
But Kavanaugh also took the route of all nominees and refused to answer questions about issues or cases that could come before him, during a long day in which he faced frequent interruptions by protesters, tough questions by Democrats and help from supportive Republicans.
Kavanaugh did not clarify his views on the constitutionality of Roe and declined to answer what he called hypothetical questions about Trump fighting a subpoena or pardoning himself or others in Mueller’s Russia investigation.
He refused to comment about Trump’s recent tweet criticizing the Justice Department for indicting two Republican congressmen, including Rep. Chris Collins (R-Buffalo).
“The first thing that makes a good judge is independence, not being swayed by political or public pressure. That takes some backbone, takes some judicial fortitude,” said Kavanaugh, answering his first question from Sen. Chuck Grassley (R-Iowa), the committee chairman.
“No one is above the law in our constitutional system,” Kavanaugh said. “Under our system of government, the executive branch is subject to the law, subject to the court system.”
But he declined to answer questions from members of either party that were asked in the context of Trump’s threats to fire his attorney general and Mueller.
“I’ve seen all sides of this,” Kavanaugh told Sen. Chris Coons (D-Del.), an apparent reference to his work for independent counsel Ken Starr’s investigation of President Bill Clinton and later service as an associate counsel and staff secretary for President George W. Bush.
“I will have a completely open mind on this issue,” he said. “But the larger point is that I have not taken a position on the constitutionality” of a president firing a special counsel at will.
Kavanaugh, 53, a conservative D.C. Circuit Court judge, said he would be guided by law and stressed that he’s aware of the effects that judicial rulings have on people’s lives, countering complaints that his record shows he would harm them.
On Roe, the 1973 ruling that legalized abortion, he said, “It's settled as a precedent of the Supreme Court entitled the respect under principles of stare decisis.” He added that in Planned Parenthood v. Casey in 1992, the court “reaffirmed” Roe as a “precedent for precedents” for it.
But he sidestepped the question by Sen. Dianne Feinstein (D-Calif.) on whether he now believes Roe can be overturned. Feinstein noted the “death tolls” from illegal abortions before Roe and said she believes women should be able to control their own reproductive systems.
“I don’t live in a bubble,” he said. “I live in the real world. I understand the importance of the issue.”
Feinstein later said she was not satisfied with his answer, but acknowledged she failed to ask if he thought Roe was correctly decided — a more significant question.
On his “skepticism” of regulations that affect the environment, safety on the job and net neutrality, he said, “I’m not a skeptic of regulation at all. I’m a skeptic of unauthorized regulation, of illegal regulation, of regulation that is outside the bounds of what the laws passed by Congress have said.”
Sens. Patrick Leahy (D-Vt.) and Dick Durbin (D-Ill.) asked whether he had misled them in his 2006 confirmation hearing for appellate judge, about his involvement in detainee and torture policies. “I told the truth, the whole truth,” Kavanaugh said.
Kavanaugh told Sen. Orrin Hatch (R-Utah) that the resignation of 9th U.S. Circuit Court Judge Alex Kosinski, for whom he had clerked, for alleged sexual misconduct was “a gut punch, and I was shocked and disappointed and angry.”
But to make his point about the independence he would have as a justice, he cited “great moments” in history when justices ruled against the presidents who put them on the court: Brown v. Board of Education, which ended legal school segregation; and the Youngstown Steel decision, which blocked President Harry Truman from seizing steel mills during World War II.
Kavanaugh said he also had ruled against Bush, who appointed him to the appellate court after he worked for him for nearly 5 1/2 years as lawyer and staff secretary, finding Bush’s military commissions unconstitutional in Hamdan v. U.S.
And in a case that resonates in Washington now, Kavanaugh sought to rebut reports that he had called the Nixon v. U.S. case — a unanimous 8-0 ruling that forced President Richard Nixon to turn over the Watergate tapes to a prosecutor — “perhaps wrongly decided.”
Kavanaugh told the committee: “It was one of the greatest moments because of the political pressures of the time, the courts stood up for judicial independence in a moment of national crisis.”
But he declined to answer Feinstein’s question about whether it was correctly decided.