Kavanaugh: I think he's misunderstanding.
Coons: If US v Nixon was rightly decided, was Morrison v. Olson?
Coons: I looked back at Kagan's article. She rejected the unitary executive.
Coons: As he understands the dissent, the problem with the CFPB to Kavanaugh was that the director was not fireable at will.
Coons: Your problem in PHH was that director not removable at will, but only for cause. What offended your sensibilities in PHH was that president couldn't fire director at will, which is why I'm asking about president firing prosecutor after Watergate.
That is the connection with the Watergate situation, to Coons.
Coons: What caused you to write an opinion that a single director removable for cause was constitutionally unsound?
Kavanaugh reiterates that in PHH, he was following a precedent of the Supreme Court.
Kavanaugh is explaining the precedent that he believes justified his PHH opinion.
Precedent, Free Enterprise Fund case, stated that the outer limits of what was constitutionally permissible for independent agencies were set out in Humphrey's Executor.
Coons: Wasn't core concern president's inability to fire director at will?
Coons: You can see how this raises concerns.
Coons: Was Morrison correctly decided?
Coons: Kagan is clearly not endorsing the unitary executive.
Coons: Why the animus against Morrison v Olson?
Coons: You said Nixon was rightly decided, what about Morrison, Griswold, Eisenstadt?
Kavanaugh: I answered that I agreed with Roberts and Alito.
Coons: You chose to call Morrison a constitutional travesty, and you're the nominee.
Kavanaugh: I've said the special counsel system we have today is consistent with our traditions.
Coons: You were happy to use the tools of the independent counsel, then afterward found enthusiasm to getting rid of that statute.
Coons: Those of us who have tried to enact statutes to limit the president that get thrown back at us. I wish you would have a clear discussion with us. I don't think you're being direct with me because to be direct with me would put your nomination at risk.
Coons is convinced that Kavanaugh believes in unitary executive theory, a dangerous view of the presidency, and is unwilling to say so.
Kavanaugh: You're talking about a 20-year statute.
Coons: I'm not talking about that. I want an honest answer about your view on presidential power.
Kavanaugh says he has an open mind about constitutionality of for-cause protections.
Grassley has called for a brief break. 15 minutes, "but I'd appreciate it if you can keep it to 7.5."
Sen. Flake, R-Ariz., now up.
Kavanaugh introduces several girls whom Kavanaugh has coached and who are now in the front row of the reserved seating.
Behind the nominee, there is reserved seating, which now has the girls. Behind them are the press tables, and behind them is unreserved audience seating, which is where the interruptions have been happening.
Flake: You've decided 307 cases. Are there any you look back on and think you didn't get it right?
Kavanaugh: I have reconsidered what the "law of war" means, going from thinking that it belonged only in the international context to thinking that it also included U.S. historical practice.
Flake: Which cases were the most difficult?
Kavanaugh: Justice Scalia used to answer that the hardest case was the one he was working on right now.
Kavanaugh: National security cases are quite difficult and important. Every case has an effect on real people in the real world.
Kavanaugh: To the litigant before you, that's the most important case they'll ever have.
Flake: How do the clerks work?
Kavanaugh: I have clerks prepare binders of all the cases I need to read, and law review articles and treatises on point. I'll have one clerk handling a case but will talk about it with others. The judges will not talk before oral argument, because we want to come to argument with independent perspectives.
Kavanaugh: At conference after argument, we share what we're thinking. Then we go through drafts of writing opinions.
Kavanaugh: The process is designed to make sure you get it right. That's why judges are reluctant to give our views on hypotheticals absent that process.
Flake revisiting discussion about limits of executive power that he engaged in yesterday.
Flake: Kavanaugh had talked about Hamdan decision, in which he ruled for an unsympathetic defendant, driver for Osama Bin Laden.
Thinks Kavanaugh's explanation for Hamdan ruling is admirable. Not sure how Kavanaugh's thoughts about postponing presidential investigations or prosecutions squares with that.
Kavanaugh: Those were just some thoughts for Congress. It wasn't a constitutional position.
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