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Live blog of confirmation hearing | September 6, 2018

We live-blogged the third day of Supreme Court nominee Judge Brett Kavanaugh's confirmation hearing before the Senate Judiciary Committee. Senators completed their second and third rounds of questioning for the nominee.

3rd & 7 37yd

Lee: Morrison applies only to context that irrelevant here, correct?

by Andrew Hamm 9/6/2018 5:08:45 PM
Kavanaugh: Correct

by Andrew Hamm 9/6/2018 5:08:52 PM
Kavanaugh: Morrison is a one-off case about a one-off statute that no longer exists, that's why he can talk about it.

by Edith Roberts 9/6/2018 5:09:22 PM
Lee: That's why you can talk about it. It's a dinosaur.

by Andrew Hamm 9/6/2018 5:09:35 PM
Lee moves to PHH. Here's our deep dive:
Kavanaugh on the executive branch: PHH Corp. v. Consumer Financial Protection Bureau - SCOTUSblog
SCOTUSblogJudge Brett Kavanaugh wrote two opinions in PHH Corp. v. Consumer Financial Protection Bureau: a panel opinion declaring an aspect of the bureau to be unconstitutional and an opinion dissenting from the en banc U.S. Court of Appeals for the District of Columbia Circuit’s decision overruling his pane

by Andrew Hamm 9/6/2018 5:10:10 PM
Lee: What's the difference between independent counsel and special counsel?

by Andrew Hamm 9/6/2018 5:10:26 PM
Kavanaugh: Appointment, removal, jurisdiction -- so many different features.

by Andrew Hamm 9/6/2018 5:10:43 PM
Lee: When you create an unaccountable entity, isn't that the problem Justice Scalia was pointing out in Morrison?

by Andrew Hamm 9/6/2018 5:11:41 PM
Problem was independent counsel was not accountable to anyone. Many people found that problematic, including in Congress.

by Edith Roberts 9/6/2018 5:11:46 PM
Kavanaugh: Watergate was special counsel, the kind we now have.

by Andrew Hamm 9/6/2018 5:12:20 PM
Lee: Nixon fired the special counsel, and we all know how that turned out. It seems to me that this remains an important tool.

by Andrew Hamm 9/6/2018 5:12:52 PM
Lee: You've never taken a position on the immunity question.

by Andrew Hamm 9/6/2018 5:13:16 PM
Kavanaugh: The question is about deferral. And I have no taken a position on constitutionality.

by Andrew Hamm 9/6/2018 5:13:45 PM
Grassley: Another request for documents.

by Andrew Hamm 9/6/2018 5:14:23 PM
Grassley: 30 minute break.

by Andrew Hamm 9/6/2018 5:14:57 PM
Cornyn: Every committee confidential document requested by a senator has now been vetted and made available?

by Andrew Hamm 9/6/2018 5:15:36 PM
Grassley: Yes

by Andrew Hamm 9/6/2018 5:15:41 PM
Whitehouse: Could you build in time for our 1:45pm vote?

by Andrew Hamm 9/6/2018 5:16:13 PM
Grassley: There are two votes.

by Andrew Hamm 9/6/2018 5:16:36 PM
Okay, we're getting going again. Tillis is serving as chair.

by Andrew Hamm 9/6/2018 5:57:05 PM
Sen. Whitehouse, D-Rhode Island, now up.

by Andrew Hamm 9/6/2018 5:57:19 PM
Whitehouse: Journalists go to jail to protect confidentiality. Will you release any journalists from that obligation?

by Andrew Hamm 9/6/2018 5:57:54 PM
Kavanaugh: Senator...

by Andrew Hamm 9/6/2018 5:58:20 PM
This has to do with reporters Kavanaugh spoke to during the Starr investigation.

by Edith Roberts 9/6/2018 5:58:25 PM
Whitehouse: Will you release those reporters from the confidentiality they feel they owe you?

by Andrew Hamm 9/6/2018 5:58:38 PM
It's just Tillis and Whitehouse here now. And the nominee.

by Andrew Hamm 9/6/2018 5:58:55 PM
Whitehouse: Reporters may have information about what you told them that they are unwilling to divulge because you were a confidential source. Can you release them from that?

by Andrew Hamm 9/6/2018 5:59:30 PM
Kavanaugh: I spoke to reporters at the authorization of Judge Starr, so it's up to him. I was not acting on my own.

by Andrew Hamm 9/6/2018 5:59:57 PM
Whitehouse: That's not how reporters see it. You were the source.

by Andrew Hamm 9/6/2018 6:00:07 PM
Kavanaugh: I don't think I should do that given that I was working for someone else.

by Andrew Hamm 9/6/2018 6:00:22 PM
Whitehouse: Your answer is that you're unwilling, so I'll move on.

by Andrew Hamm 9/6/2018 6:00:34 PM
Whitehouse: Has there ever been statutory law on presidential immunity?

by Andrew Hamm 9/6/2018 6:00:49 PM
Kavanaugh: Justice Department law...

by Andrew Hamm 9/6/2018 6:01:00 PM
Whitehouse: Justice Department is not a law-making body, is it?

by Andrew Hamm 9/6/2018 6:01:11 PM
Kavanaugh: If law includes regulations.

by Andrew Hamm 9/6/2018 6:01:21 PM
Whitehouse: There is no law Congress has passed to protect a president from indictment.

by Andrew Hamm 9/6/2018 6:01:41 PM
Kavanaugh: Congress has not, the Justice Department has a policy.

by Andrew Hamm 9/6/2018 6:01:53 PM
Whitehouse: So if not law, then an opinion on it must be constitutional law, right?

by Andrew Hamm 9/6/2018 6:02:20 PM
Kavanaugh disagrees.

by Andrew Hamm 9/6/2018 6:02:25 PM
Whitehouse: Let's go back to 1998. The panel you were on was asked, who believes as a matter of law that president cannot be indicted. (Two pictures are behind Whitehouse.) Did you mean "as a matter of law" the OLC guidance?

by Andrew Hamm 9/6/2018 6:03:21 PM
Kavanaugh: I was saying that there was a lurking constitutional question.

by Andrew Hamm 9/6/2018 6:03:33 PM
Whitehouse: There are two types of law. Laws Congress passes and the Constitution. It's a stretch to call policy law.

by Andrew Hamm 9/6/2018 6:04:01 PM
Kavanaugh reiterates that it's a long-standing Justice Department position.

by Edith Roberts 9/6/2018 6:04:17 PM
Whitehouse: You've been telling us that I've never taken a position on constitutionality.

by Andrew Hamm 9/6/2018 6:04:20 PM
Whitehouse: It looks to me like that's bit of a conversion.

by Andrew Hamm 9/6/2018 6:04:35 PM

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Challengers urge justices to dismiss census case after district court ruling (Updated) – Amy Howe

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Argument analysis: Justices have strong views about removal of class actions – Ronald Mann
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- Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
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  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
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  Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
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Justice Sotomayor at Harvard

On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.

Peabody Award
Awarded the Peabody Award for excellence in electronic media.
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Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
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Awarded the National Press Club's Breaking News Award for coverage of the Affordable Care Act decision.
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Awarded the Silver Gavel Award by the American Bar Association for fostering the American public’s understanding of the law and the legal system.
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Cases argued	43
Cases decided	9
Summary reversals	2
Merits cases granted to date	73

Editor's Note :

Scribble

Live blog of confirmation hearing | September 6, 2018

We live-blogged the third day of Supreme Court nominee Judge Brett Kavanaugh's confirmation hearing before the Senate Judiciary Committee. Senators completed their second and third rounds of questioning for the nominee.

Featured Posts

Challengers urge justices to dismiss census case after district court ruling (Updated) – Amy Howe

Reargument analysis: Justices seek a “middle position” in takings litigation case – Miriam Seifter

Argument analysis: Justices have strong views about removal of class actions – Ronald Mann

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Merits Case Pages and Archives

Recent Decisions

Current Relists

Conference of January 18, 2019

Major Cases

Recent Special Features

Live Blog Archives

Jan. 2019

Download our App in the Apple Store

First Mondays see all

Videos see all

Peabody Award

Sigma Delta Chi

National Press Club Award

Silver Gavel Award

American Gavel Award

Webby Award