Kavanaugh talks about his commitment to an independent judiciary and the foundation principle that no one is above the law
Kavanaugh: The judiciary has been the final guarantor of the rule of law.
Durbin: That's why the unitary theory of the executive is so concerning.
Durbin: What you've said in relationship to Morrison suggests that the president has the last word.
Durbin: When I asked in 2006 about detention and torture, you gave a simple, declarative answer, that you were not involved. We have found at least three specific examples in which you were. Three.
Durbin: You say words matter and claim to be a textualist, but you don't want to be held accountable for your own words. Why is it so difficult for you to acknowledge that you answer was at least misleading if not wrong?
Kavanaugh's answer seems basically to be that Durbin's earlier question in 2006 was about a more discrete policy.
Durbin is going through the three examples that he has of Kavanaugh involved at least in general torture-related issues. Do you deny these three specific instances?
Kavanaugh: My answer was then and is now that I was not read into that program.
Durbin: I'm asking about these instances, not that program.
Kavanaugh: As I've made clear, of course as staff secretary it would have passed my desk.
Durbin: I don't think staff secretary is a file clerk.
Kavanaugh still intepreting Durbin's question more generally, responding that he was not involved in torture program as a whole.
Sen. Lee, R-Utah, now up.
Lee: Sen. Durbin and I share many views in common, including against torture. But I think this cuts in your favor, not against you.
Lee: It's binary, you were involved in developing policy or not, and you were not.
There were just three more women objecting and removed from the room.
Lee: There was also a meeting about how Justice Kennedy might react to the legal arguments the administration was thinking of making.
Kavanaugh: Yes, I answered that it would not fly with Justice Kennedy.
Lee: So, I don't see how this cuts against you. I think the advice you offered was accurate. It's not inconsistent with the the testimony you provided.
Kavanaugh: Yes, and the question was actually about something different from the policy.
Lee doesn't think that any of the involvement suggested by the three instances Durbin references was inconsistent with Kavanaugh's statement that he was not involved in crafting the torture policy.
Lee: Sen. Booker yesterday raised issue related to emails that you did not have in front of you.
Lee: These emails deal with an issue around a Supreme Court case. You were asked about what might happen if a certain argument brought to the Supreme Court on the merits.
Booker was asking about Supreme Court Adarand case, involving minority set-asides.
Lee: You counted to five. You identified five justices that would not accept the argument. You made argument about a way that court could decide that it should not have granted the case.
Lee: As a result, the regulations stood.
Lee: I don't see this as anything other than something that helps you.
Lee: This should help you with the Democrats, because your approach enabled the government's set-aside regulations to stand.
Lee: Sen. Harris yesterday asked if you had ever spoken to anyone at Kasowitz Benson Torres. It's a law firm that includes 350 lawyers in 9 U.S. cities.
Lee: Could you name every attorney at that firm?
Lee: Can you rule out possibility someone who works at the firm?
Kavanaugh: I can't rule it out. I found out last night that Sen. Leiberman works at the firm.
Lee: I think my colleague's question was unfair.
Lee: Have you made any promises to anyone about how you might vote on any case that might come before you?
Lee: Any improper questions about the Mueller investigation?
Lee: Is president absolutely immune for any legal action, civil or criminal?
Kavanaugh: As explained in Federalist 69, no one is above the law.
Lee: Who investigates the president?
Kavanaugh: As a practical matter, if there might be a conflict of interest in ordinary Justice Department practice, there is appointment of special counsel.
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