Cornyn: Historically, confirmation used to be routine. Not one senator voted against Justices Kennedy or Scalia. That was before judges viewed as policy-makers, Cornyn says. Today is an opportunity to examine proper role for judges under our constitution.
Hard to hear Cornyn because we've had three audience members speak out.
After two more speakers and a pause, Cornyn resumes speaking about Alexander Hamilton's description of the judiciary as the "least dangerous branch."
To clarify something I mentioned earlier about the police, they are still giving warnings to protestor before removing them. "This is your one warning. You will be arrested." is what they typically say. Two women actually stopped upon being given that warning and were allowed to stay.
Cornyn: I expect we will have a conversation about this book which you contributed to (he holds up a book called "The Law of Judicial Precedent"). I expect you will demonstrate that concerns about justice single-handedly wiping away previous decisions is ridiculous.
Sen Durbin, D-Ill., now up. Calls this a different hearing than he's ever been through. "What we've heard is the noise of democracy. This is what happens in a free country when people can stand up and speak. ... It is not mob rule."
Durbin: This represents what happens in democracy. We need to be honest about why this is happening in this committee.
Durbin: Your record suggests genuine concern about changing life and death values in this country because you see things differently.
Durbin: There are parts of your public life that the majority wants to conceal. That's a serious mistake.
Durbin: You are the nominee of President Trump, who is contemptuous of the rule of law. He harasses and threatens his own attorney general.
Durbin: It is that president that has decided that you are his man, you are his personal choice. Of course people are concerned about this.
Durbin: If you wonder why this reaction is taking place, it's because of concern about the future of this country and democracy. And you are asking for a lifetime appointment for a position in which you will make deciding votes on opportunity issues.
Durbin: You are the Forrest Gump of Republican politics. You always show up in the picture.
Durbin: Trump did not ask you whether you would overturn Roe v. Wade, but he delegated this to groups that are confident you would do this.
I guess if Durbin had said "Zelig," that might not have connected as widely.
An aide is holding a big sign behind Durbin that says "Brett Kavanaugh said Obamacare was unprecedented and unlawful," which was the headline to an op-ed written by a former clerk of Kavanaugh's.
Kavanaugh is taking some notes on Durbin's remarks, as he has done a few times this morning with others.
Durbin: In 2006, you said under oath, "I was not involved and am not involved" in rules governing detention combatants. But you later told me that you were. You had 12 years to correct this in public. You should be held accountable for your own words. (There was another sign about this point.)
Now an aide holds a sign with a bunch of calendars -- a 35 month hole, Durbin says, in which we don't have access to Kavanaugh's records.
Durbin: "Judge Kavanaugh, America needs to see those documents."
Durbin now moves to views of executive accountability. In the 1990s, you called Ken Starr an "American hero" in his investigation of President Clinton. In the Bush White House, you began to believe that president above the law. What did you see in White House that made you change your view?
Durbin: Is this president or any president above the law?
Durbin: If you believe that your public record is one you can stand by, I would suggest that you tell the committee to suspend hearing for now. If you trust the American people, they will trust you.
Durbin: All the documents held back mean that the presumption is against you. "Step up." Ask for this to be suspended until all documents available.
Now Sen. Mike Lee, Republican of Utah
Lee: Outcry against this nominee shows why we need to a judge who just applies the law. We need a civics lesson about the roles of the branches of government.
Lee: Over next few days, members of this committee will ask you questions. The suggestion that you misled the committee is "absurd," and this will be shown over the next few days.
It seems that there has been no new stream of regular off-the-street spectators in a while, which explains the quiet.
Lee: Wasn't until 1916 that hearings even started. For over 100 years, we didn't have hearings at all. The first was for Justice Brandeis.
Lee: The call for a hearing had to do with anti-Semitism because Brandeis was Jewish and to see if Brandeis would advocate positions as justice that he had supported in practice.
Lee: Next important moment was 1939, when Felix Frankfurter himself gave testimony (for Brandeis, it was witness testimonies, Lee said).
Lee: Frankfurter insisted that his public record spoke for itself.
Lee: In 1959, senators opposed to Brown v. Board wanted to grill Potter Stewart on views about segregation. Stewart did not provide substantive answers.
Lee: Then, 1987, Robert Bork's hearing -- "a rock bottom moment" for the Senate. Sen. Ted Kennedy and Bork did not agree on constitutional law.
I wrote too soon. There is a new group of spectators. We'll see how long before any interruptions.
Lee: Creation of a new norm in which senators demand promises about how they might vote on cases brought before them, but nominees still resisted, including Justice Scalia and Justice Ginsburg: "no previews, no forecasts, no hints," Ginsburg said. Lee calls this the "Ginsburg standard."
Lee: If senators ask about outcomes, the public will think judging is about outcomes. But no free people would accept a judiciary that simply imposes its views absent legal authority in the Constitution.
Senator Lee's father, Rex Lee, was a U.S. solicitor general; his brother, Thomas Lee, is a justice on the Utah Supreme Court. Both Thomas and Mike Lee are on the president's "short list" of potential nominees.
Chairman Grassley has stepped out of the hearing room. Several other senators on each side are also taking a break.
Lee: As a judge, you ruled against the Bush administration eight times. For you, it doesn't matter who the parties are.
Lee: You voted to overrule circuit precedent only four times, and each of those were unanimous decisions with your colleagues.
Lee: We've heard your nomination is bad for women, the environment, labor unions. But we have cases in which you've ruled for each of those groups.
Lee: Judiciary is legitimate when based in sound legal principles and reasoning. Ruling for a certain party itself is not legitimate. A free people should never be willing to settle for that.
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