Harris: In 1889, court wrote Chinese Exclusion Cases. Was the court correct in holding that Chinese people could be banned from entering our country.
Kavanaugh: Cases in that era reflect discrimination.
Harris: Was it correctly decided?
Kavanaugh: I don't want to opine on cases.
Won't opine without looking at the case.
Harris: Were you aware it had not been overturned?
Kavanaugh: Have you ever written about those cases and whether they should be overturned?
Harris: Have you talked about this case?
Kavanaugh: I do not believe.
Harris: Can the United States ban entry on the basis of race?
Kavanaugh: That's pending litigation.
Harris: In 2013, Texas passed law restricting facilities that provide abortion. In 2016, Whole Woman's Health invalidated the restrictions. Was it correctly decided?
Kavanaugh: Consistent with nominee precedent...
Harris: You've said repeatedly that Roe is an important precedent. I'd like to understand what that means for the lives of women. Can a state prevent a woman from using widespread medical procedure from ending pregnancy?
Kavanaugh: Roe is an important precedent.
Harris: Can Congress ban abortions after 20 weeks pregnancy?
Kavanaugh: That could come before me.
Harris: You praised Rehnquist's dissent in Roe and for steadying the tide of unenumerated rights. The right to vote, the right to have children, to control upbringing, to refuse medical care, to marry, to have an abortion.
Harris: You praised the quest to end unenumerated rights. Which right do you want to put an end to or roll back?
Kavanaugh: Constitution does protect unenumerated rights.
Kavanaugh: Glucksberg specifically cited Casey. And Kagan pointed at Glucksberg as the test for unenumerated rights.
Harris: Let's put the unenumerated rights in the context of your praise for Rehnquist -- arguably every right I put on that list. When you praise who attempted to end those rights, which in particular?
Kavanaugh: Glucksberg was the test for unenumerated rights.
Harris: Does the right to vote fall in the category of the tide of judicial creation of rights?
Kavanaugh: I was describing Rehnquist's career. Glucksberg case is the case that the Supreme Court has relied on for forward-looking recognition of rights.
Harris: In 2011, you were judge in case on Affordable Care Act. Former law clerk described your opinion as a thorough take-down of the individual mandate. Next year, your opinion was a roadmap for the dissenting justices on the Supreme Court. Could one conclude that you would have voted to strike down the Affordable Care Act?
Kavanaugh: I did not reach the merits. My opinion has been described as the road map in both directions.
Grassley: Minority has requested a third round of questioning. 8-minute rounds. Leahy has yielded to Hirono, so she will have 16 minutes. Then there will be a closed session.
Cornyn, R-Texas, now up -- last in this round.
Cornyn: Bothered by suggestion that some Americans can participate in debates and others are condemned for participating, like the Federalist Society.
Cornyn: Left-leaning groups have weighed in. It reminds me of Joseph McCarthy, asking about being a member of the Communist Party. The idea that we would disparage Americans for their associations strikes me as a bad road to go down.
Cornyn: I've found this hearing edifying. That's what we do in the Senate, we make sausage. Were there any administrative agencies at the founding of America?
Cornyn: Concerned about the role of administrative agencies today.
Kavanaugh: First Congress made department of war, treasury, etc.
But nothing like what we have today.
Cornyn: That's helpful. I hadn't thought of them as agencies. We don't get to vote on the bureaucrats, do we?
Kavanaugh distinguishes independent agencies and executive agencies.
Cornyn: I want to talk about the growth of administrative agencies in our government.
Kavanaugh has identified a concern about administrative fact-finding in some of his cases.
Kavanaugh: Every case matters of course, but ones with individuals who have gotten a run-around by the government are especially important.
Cornyn: Given explosion of agencies and regulations, to which courts are deferential, under Chevron, there is a lot of room for a lot of abuse.
Deference to administrative agencies creates a lot of room for a lot of abuse, says Cornyn.
Cornyn: Why would an agency be able to determine their own legal authority?
Kavanaugh: That is a critique leveled at Chevron.
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