Kennedy: You called originalism constitutional textualism.
Kennedy: Why do we put so much emphasis on the Federalist Papers?
Kavanaugh: Great question. Those papers describe government, but they were advocacy for the Constitution. You have to make sure that the words control and not necessarily the advocacy. The Constitution was a compromise.
Kennedy: Do you put much stock in the notes of the convention?
Kavanaugh: I find them fascinating. I learn from them. They help you understand, but they do not control over the actual words of the documents.
Leahy, on Grassley's time.
Leahy is getting into privacy issues.
Kavanaugh: Carpenter decision by Roberts is a game-changer.
Leahy: Because of Carpenter, do you believe there is a point where collection of data about someone is so pervasive that warrant would be required?
Kavanaugh is saying that Supreme Court adopted his approach in Jones to hold that placing a GPS device on a suspect's car violated the Fourth Amendment.
Kavanaugh: Case law shows a recognition that technology has made things different. We need to understand those differences for purposes of Fourth Amendment law.
Sasse: I'm not aligned with Leahy-Lee Bill, but appreciate the questions. So much is right-left, but that was past-future.
Whitehouse: I asked if Mr. Leo was in your phone. Could you let me know what you said then?
Whitehouse: Earlier, when we spoke about waving reporter confidentiality, do I understand that you personally have no objection to reporters disclosing conversations, you just don't want to speak for Judge Starr? Or do you have a personal objection?
Kavanaugh: I want to get back to you on that.
Whitehouse: You called US v Nixon one of four best decisions in history. Every time you mentioned Nixon, you dropped into your description of the holding that it was a trial court subpoena. Was that factual, or a loop hole? Mueller is coming with a grand jury subpoena.
Whitehouse: What is your view of the trial court subpoena of US v. Nixon?
Kavanaugh: I've been careful to describe the holding of the case. I need to be careful about hypotheticals.
Whitehouse: You are the one who has been using the phrase.
Kavanaugh: I've described the holding but I think it's important not to be talking about hypotheticals.
Whitehouse: You were the one using it against idea that you are human torpedo against Mueller.
Whitehouse says Kavanaugh has opened the door to this question.
Whitehouse: You are the one who put your regard for US v. Nixon into play as a data point, so I think it's fair for us, because you opened the door, to ask whether you believe the central holding applies to trial court and grand jury. If it doesn't, I will feel very mislead.
Kavanaugh: I try to stick to what they said in the opinion.
Whitehouse: Why have you used it in the context of grand jury subpoena? If that's not really assurance, I think that would be an unfortunate way to have dealt with the Senate on that question.
Kavanaugh: If you read the opinion, I'm describing what the opinion said.
Whitehouse: You did more than that by putting the decision in play as a signal to us that we should have pause about our earlier points.
Whitehouse: In one of your decisions, it would be legal for Putin to come to the US and buy issue ads.
Whitehouse: Does recent activity of Russia give you any pause about the wisdom of a judicial construction that would allow that?
Kavanaugh: My decision was affirmed summarily by the Supreme Court upheld limits on contributions. Stevens has praised the decision. The case did not involve expenditures, and Congress can make legislation.
Cornyn: Congress writes federal campaign finance law, not courts, correct?
Cornyn: What does it prove that you have someone's name in your phone directory?
Kavanaugh: That I've known someone for 25 years.
Cornyn: Sen. Kennedy said that the Bill of Rights is not an a la carte menu. Do you agree?
Kavanaugh: I try to apply all the provisions of the Constitution and precedents. They are all important.
Cornyn: Durbin asked you to apply common sense for the Second Amendment. Is that a basis?
Kavanaugh: You apply precedent and other tools for interpretation.
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