Booker: Does Kavanaugh agree with Scalia that it's never permissible to use race to remediate past discrimination?
Kavanaugh: I was writing a brief for a client.
Booker: That was one example. You invoke Scalia's one-race theory quite often. Are you saying that you do not share Justice Scalia's beliefs?
Kavanaugh: Supreme Court precedent allows race-conscious programs in certain circumstances.
Kavanaugh: Remedying past discrimination seeks racial equality.
Booker: So you disagree with Scalia that it's not permissible for the Supreme Court to try to remediate past discrimination to achieve justice.
Kavanaugh: That position has not been adopted by SCOTUS.
Booker: I'm asking what you think.
Kavanaugh: There are a couple of things SCOTUS has approached in case law.
Kavanaugh keeps trying to invoke case law, not describe his beliefs.
Booker now moves to a specific example about home loans after Hurricane Katrina.
Kavanaugh: I approach such questions from the history of our country and the real world today.
Kavanaugh: If you're asking about specific remedies, I have to follow precedent.
Booker: I know what precedents are. I'm asking about your opinions. In April 2003, you wrote of program for Native Americans small businesses that it was not a compelling interest.
Booker: Do you still believe race can never be used to remedy clearly proven discrimination?
Kavanaugh: Well, the Supreme Court...
Booker: I know the Supreme Court. Can you say right now what you believe, as you've opined in emails and articles?
Booker: The Supreme Court said for decades that colleges have a compelling interest in student body diversity and can use race as a factor if narrowly tailored to that interest. Do you believe these cases were rightly decided?
Kavanaugh: They are precedents...
Booker: You said Marbury and Brown were rightly decided. Do you believe that these cases were rightly decided?
Kavanaugh: I am following the precedent set by the 8 justices on the Supreme Court. It would be a thumbs up or down.
Booker: I'm telling you the distinction here. None of those nominees had voiced personal opinions that government should refuse to defend these kinds of programs.
Booker: You said then it was your personal opinion. What about now?
Kavanaugh starts giving an answer about the contexts of past cases.
Kavanaugh: There's precedent in the higher education context and contracting context that are somewhat distinct. My record on race discrimination cases.
Booker: But you're not happy to talk to me about opinions you expressed in the past?
Kavanaugh: Your taking "personal opinion" out of context.
Booker: Is a diverse student body a compelling government interest?
Kavanaugh: The Supreme Court has said so.
Booker: I'm worried about the law is going to be when you're on the court and can change those precedents. You haven't answered my question.
Booker: Do you believe that government efforts to promote diversity are a naked racial set-aside?
Booker: Have you ever used the term "naked racial set-aside"?
Booker: I'll ask my staff to provide your email.
Kavanaugh: I have personally promoted diversity.
Booker: I appreciate that. I'm not asking about your five black clerks. You're seeking a position on the Supreme Court. You're not willing to say if you hold positions that you've held before?
Booker: You once discussed racial profiling with your colleagues in the Bush White House. If use of race renders measures effective, we should be using it for the sake of safety now, which may be legal as under cases like Korematsu.
Kavanaugh: You're quoting someone else.
Tillis has called for a point of order. I think it would be helpful if we can suspend long enough for the judge to have the documents.
Booker: If colleague has issue with that, he should bring that up with me.
Booker: It seems you are using race to single out some Americans for security measures, but not for promoting diversity and correcting past discrimination.
Kavanaugh asks about the date of the email.
Kavanaugh: I'd like to see the email.
Booker: It seemed to me like you were open to the concept. There are practices in our nations that target people of color.
Booker: In past case, you would have protected warrantless arrests "east of the Anacostia River." You and I both know that's a heavily African American area [in D.C.].
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