Kavanaugh: I've spoken about my respect and appreciation for the 8 justices on the Supreme Court.
Kavanaugh won't comment on what another person said.
Blumenthal: Do you believe a judge should be attacked based on his heritage?
Kavanaugh: I'm not going to comment on current events.
Blumenthal: These are issues that have to do with the independence of the judiciary.
Blumenthal: The judiciary and nominees have an obligation to stand up for the judiciary. Gorsuch said these attacks are disheartening and demoralizing. Do you agree?
Kavanaugh: The way we stand up is by deciding cases without favor.
Blumenthal: On the night of your nomination, you began your speech by saying that no president had ever consulted more widely to seek input.
Blumenthal: What was the factual basis for that statement?
Kavanaugh: Those are my words. I did look into that. I was very impressed by the thoroughness of the process.
Blumenthal: Did you talk to President Clinton about how many people he spoke to?
Blumenthal: You didn't have any factual basis at the time of that statement, did you?
Kavanaugh: I did look and think about it.
Blumenthal puts up quote from Kavanaugh's opinion in Seven Sky v Holder about president being able to decline to enforce a statute that he deems unconstitutional.
Blumenthal behind him has the sign quoting Kavanaugh in Seven-Sky.
Now behind Blumenthal is a picture of a child.
Blumenthal wants to look at real-world impact. One has to do with the Affordable Care Act.
Blumenthal: One real-world impact is the Affordable Care Act. There are 15-20 pre-existing conditions. One affects a young man named Connor, age 8, who suffers from a pre-existing condition. I want you to think about him. This condition will slowly erode his motor function and life unless we find a cure. He will need more and more help under the ACA.
Blumenthal: My reading of your view is that Donald Trump could deem the Affordable Care Act unconstitutional even if it is upheld by the DC Circuit and by the Supreme Court.
Blumenthal: Do you think the president has that authority?
Kavanaugh: Thank you for bringing up this example. I have upheld the Affordable Care Act against other challenges.
Two more protesters just got kicked out. They were sitting next to someone who appears to be wearing a "Make America Great Again" hat and waved goodbye to them as they were removed from the room.
Blumenthal: My fear and concern is that you will not apply the law to the facts but use the law to advance an ideological position that may affect people like Connor.
Grassley: Have you made any pre-commitments?
Sen. Crapo, R-Idaho, now up.
Crapo: I want to go back to independent v. special counsel issue.
Crapo: I'm puzzled by my colleagues' attacks on your writings on Morrison v. Olson. Were you criticizing the current special counsel system?
Kavanaugh: No, and in my writings I have specifically distinguished them.
Crapo: I recognize you may feel like you've been through this endlessly, but could we go again through the separation of powers?
Kavanaugh is now explaining how Chevron deference works.
Talking about Chevron doctrine and the major rules doctrine, which says Congress must speak clearly if it wants to assign authority to regulate in areas of major significance.
Crapo: How do you determine when something is a major rule?
Kavanaugh references various factors courts can look at.
Kavanaugh, citing Scalia: We need to see a clear assignment of authority for major rules for agencies to start regulating.
Crapo worried about vague congressional delegations of rulemaking authority to administrative agencies.
Crapo: Is there a point at which congressional delegation can be so broad as to be unconstitutional?
Kavanaugh: The general law is that Congress can delegate broadly but there are limits. What that means in practice has been decided in a number of cases.
Supreme Court precedent establishes a nondelegation doctrine, which says a delegation goes too far when Congress has not provided an "intelligible principle." There is a nondelegation challenge to a statute on the Supreme Court's docket next term.
The attention span of the basketball team is starting to wane. There has been at least one yawn.
Kavanaugh: Even in Marbury v. Madison, the Supreme Court excised the specific provision, it didn't strike the entire statute down.
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