Kavanaugh: All judges are more skeptical of legislative history than they once were thanks to Justice Scalia. Two reasons support this. First is that the history is not part of the law as passed. Also, this is not part of the compromise.
Again, both formal and practical reasons not to rely on legislative history in interpreting statutes.
Cruz: Yesterday you described yourself as an originalist. Can you explain what that means to you?
Kavanaugh: By originalist, it's not the intention of the framers but the original public meaning of the words.
The constitution is law and it, like statutes, resulted from compromises.
Kavanaugh: Precedent is part of interpretation as well.
Cruz: Let's return to religious liberty.
Kavanaugh is explaining the case himself, including joking references to Sen. Cornyn's involvement in that case as an advocate [as they had joked yesterday].
Cruz: Why did you want to take on representation in that case?
Kavanaugh: At that time, I was asked to be involved in a number of cases involving religious liberty.
Kavanaugh: I made the argument that religious speakers and speech entitled to its space in the public square.
Kavanaugh brings up another amicus brief he worked on, in the Good News Club case, in which he argued that a religious group should have equal access with other extracurricular groups to school facilities.
Kavanaugh is going over different tests that are used in religion cases.
Kavanaugh now asked about Priests for Life case, in which he dissented from denial of rehearing en banc in a case in which the panel had rejected a challenge by a religious group to mandatory contraceptive coverage in the Affordable Care Act.
Kavanaugh would have held that the government had a compelling interest in providing contraceptive coverage but that a less restrictive means was available that could have accommodated the religious objectors' concerns.
Kavanaugh: Religious Freedom and Restoration Act was passed by bipartisan majority and signed by President Clinton.
Kavanaugh: Religious liberty protects all of us, no matter what are religious beliefs are.
Cruz: In 1999, federal government took Elian Gonzalez into custody and returned in to Cuba. You worked pro bono on that case. Can you speak about that?
Kavanaugh: The question was about due process. What kind of hearing needed to be held before he could be returned to Cuba.
Question of what the Refugee Act required and also a question under the due process clause. Kavanaugh's briefs in the case argued that the INS was stretching the statute and that its interpretation did not warrant deference.
Kavanaugh: In later years our position became one that the Supreme Court agreed with.
Cruz: There's another highest court in the land, the basketball court above the Supreme Court courtroom. If confirmed, do you intend to play?
Kavanaugh: Justice Thomas at some point did get injured, so I hope that precedent won't be followed, but I do intend to play.
Grassley: You testified in 2004 that you were not involved in handling Judge Pryor's nomination. Who did?
Kavanaugh: I don't remember.
Grassley: Could it have been Ben Powell?
Kavanaugh: That sounds right.
Grassley: I had colleagues insinuating that you interviewed Judge Pryor. It seems to me like the emails indicate you know the people who were involved and were kept in the loop.
Sen. Klobuchar, D-Minn., now up.
Klobuchar: You have said that limits on contributions have constitutional problems. I asked you about Buckley v. Valeo, you didn't answer. Do you think that strict scrutiny is the right standard to apply to all campaign finance laws?
Kavanaugh: Supreme Court has done a different level of scrutiny. Now contributions to parties and candidates are on one side, independent expenditures are on other side.
Klobuchar: Settled law, or precedent?
Kavanaugh: Precedent of Supreme Court law since 1976 and entitled to respect.
Klobuchar: Is Brown v. Board settled law?
People hit it from both sides, but it is a precedent that has been applied repeatedly.
Kavanaugh: The single greatest moment of Supreme Court. It's correct.
Klobuchar: You say some things are precedent. Justice Gorsuch has said some things were precedent, and now on the court he's ruled differently. What's the difference between precedent and settled law?
Kavanaugh: Nominees can't give forecasts.
Klobuchar: If Brown is settled law, and Roe is precedent, is that a difference?
Klobuchar: How are you using these words?
Kavanaugh: I'm trying to adhere to the line drawn by the eight justices on the Supreme Court, refusing to give thumbs up or down on precedent.
Klobuchar: So that's Brown.
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