Trump’s Supreme Court Pick Vows Independence

Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, embraced the importance of judicial independence on Sept. 5 during his Senate confirmation hearing, telling lawmakers who sought to know how he would rule on major issues that it would be improper for him to answer hypothetical questions.

On the second day of the contentious hearing, senators pressed the conservative federal appeals court judge on his views on presidential power, abortion and gun rights.

Kavanaugh signaled respect for the landmark 1973 Roe v. Wade Supreme Court ruling that legalized abortion nationwide, calling it an important legal precedent that has been reaffirmed by the justices over the decades. He condemned the spate of school shootings and defended an opinion he wrote that questioned whether semi-automatic rifles could be banned.

Asked by the Judiciary Committee Chairman Chuck Grassley (R-Iowa) whether he would have any trouble ruling against Trump or the executive branch, Kavanaugh replied, “No one is above the law in our constitutional system.”

“I think the first quality of a good judge in our constitutional system is independence,” he added.

Kavanaugh cited his opinion in a case involving a Guantanamo Bay detainee that went against Republican former President George W. Bush, who appointed him to his current judgeship.

He warned that he that he wouldn’t answer lawmakers’ questions on hypothetical cases—following the lead set by eight current justices during their hearings—since it would run counter to the independence expected of a judge.

Sen. Dianne Feinstein (D-Calif.) asked about whether a sitting president can “be required to respond to a subpoena.”

“I can’t give you an answer on that hypothetical question,” Kavanaugh said.

Kavanaugh cited the same reason for refusing to answer a question posed by Sen. Patrick Leahy (D-Vt.) about whether a president has the power to issue a pardon to himself or to someone else in exchange for promising not to testify against him. President Donald Trump, in a June post on Twitter, claimed “the absolute right to PARDON myself.”

In citing examples of judicial independence, Kavanaugh mentioned a 1974 ruling ordering President Richard Nixon to hand over subpoenaed materials during the Watergate scandal, and a 1954 Supreme Court ruling ending racial segregation in public schools.

Feinstein asked Kavanaugh about his 2009 article that concluded sitting presidents should be free from the distractions of civil lawsuits, criminal prosecutions, and investigations. Kavanaugh promised a “completely open mind” if such issues came before him as a judge.

If confirmed, Kavanaugh is expected to move the court, which has a conservative majority, further to the right ideologically. Senate Democrats have vowed a fierce fight. But with Trump’s fellow Republicans holding a slim majority in the Senate, and with no sign of any of them voting against the nomination, it remains likely that Kavanaugh will be confirmed to the lifetime job on the top U.S. judicial body.

As they did a day earlier, a succession of shouting protesters interrupted the session, opposing Kavanaugh’s nomination, before being removed by security personnel.

Trump told reporters at the White House he was pleased with the hearing and said “the other side is grasping at straws.”

Sitting alone at a table facing a bank of senators, Kavanaugh stressed the difficulty of deciding tough legal disputes and noted “real-world consequences” of his rulings.

Abortion

Regarding abortion, he said he doesn’t “live in a bubble” and understood people’s strong feelings.

Liberals are concerned that Kavanaugh may provide a decisive fifth vote on the nine-justice court to overturn the 1973 Roe v. Wade ruling.

Kavanaugh called the Roe decision “an important precedent of the Supreme Court that has been reaffirmed many times.” He highlighted the 1992 Planned Parenthood v. Casey ruling that reaffirmed Roe, calling it a “precedent on precedent.”

Kavanaugh’s remarks suggested he might be cautious toward overturning Roe. But that may not preclude him from joining the court’s other conservatives in restricting its scope by upholding abortion restrictions enacted in conservative states.

Pressed by Sen. Dick Durbin (D-Ill.), Kavanaugh defended his dissenting opinion in 2017 when he sided with the Trump administration in an order preventing a 17-year-old illegal immigrant detained by U.S. authorities in Texas from immediately having an abortion. The ruling was later overturned and she had the abortion.

Gun Rights

Feinstein pressed Kavanaugh on his 2011 dissent in an appellate ruling upholding a District of Columbia gun law banning semi-automatic rifles. Kavanaugh said such guns are covered by the U.S. Constitution’s Second Amendment, which protects the right to bear arms, and his opinion was based on Supreme Court precedent that indicated semi-automatic weapons are in common use.

“Of course the violence in the schools is something we all detest and want to do something about,” Kavanaugh said.

But handguns and other semi-automatic weapons are also used for hunting and self-defense, he added.

The Supreme Court to date has ruled that individuals have a right to bear arms in self-defense, but hasn’t extended that right outside the home or specified which weapons are covered.

Trump picked Kavanaugh, 53, to replace Justice Anthony Kennedy, who announced his retirement in June.

By Lawrence Hurley, Ginger Gibson, Steve Holland & Amanda Becker