Kavanaugh: I did say there is a lurking constitutional question.
Whitehouse: Then you were asked to answer the question, and you put up your hand.
Kavanaugh: The question at the Georgetown conference wasn't about the Constitution, it was about law more generally.
Whitehouse: The Justice Department position reflects a position on constitutional law.
Whitehouse: Let's go on to recusal.
Whitehouse now has a sign behind him explaining the Caperton case.
Whitehouse: One of the problems was that the judge had received money from one of the litigants to help the judge get into office. The standard was about whether there had been inappropriate influence. Doesn't appointment follow the same logic?
Whitehouse: In this case, Trump didn't just spend $3 million to influence you becoming judge, he made you the judge.
Kavanaugh: The question of recusal has precedent.
Whitehouse: Isn't appointment more responsibility than financial contributions?
Kavanaugh: It's a shared responsibility. The Senate must confirm.
Whitehouse: Kavanaugh was very clear yesterday that it was the president who made the decision to appoint him.
Whitehouse: You were very clearly that it was the president that appointed you. [in response to questions that it was outside right-wing groups]
Kavanaugh: I don't think it'd be appropriate to make decisions on recusal.
Whitehouse: Let me ask you about presidential conflicts with prosecutors. When in the Starr effort, you were exposed to this contest with the Clinton White House, and you described it as running a "presidentially-approved smear campaign."
Whitehouse: In a later memo, you said the president has tried to disgrace Starr. He should be forced to account for that. Have your views changed?
Kavanaugh: Those comments were in a memo written late at night after an emotional meeting.
Kavanaugh: That was my memo at the time. But I don't want to talk about current events.
Whitehouse: Does the guy who was outraged still exist, or is he long gone?
Kavanaugh: That was a long time ago.
Whitehouse: Appellate court asserts a proposition of fact as true upon which hangs the decision it reaches. The question is what happens when the proposition of fact is false. What obligation does a court have if it's hung a decision on a proposition of fact, that turns out not to be true?
Kavanaugh: Hard to answer that question in the abstract.
Whitehouse: If I give specifics, you'll say you can't answer because about a case.
Kavanaugh: If decision based on erroneous fact, that could be a reason for reviewing precedent.
Whitehouse: Two examples that come readily to mind are Shelby County on voting rights. Where do you think the 5 justices got expertise in vestigial state racism?
Kavanaugh: I can't speak ...
Whitehouse: You do know that since the decision, North Carolina and Texas have been found to have done this. So it turns out the discrimination isn't really over. That ought to cause some reconsideration of the Shelby holding.
Kavanaugh: The case did not strike down preclearance, but the formula.
Whitehouse: De facto, it did. Other example is Citizens United. This took on the proposition that unlimited spending would be both transparent and independent. Correct?
Kavanaugh: The court upheld disclosure requirements.
Whitehouse: It said more than that. First Amendment ends where corruption begins, correct?
Kavanaugh agrees and gives the test.
Whitehouse: Supreme Court thought there would be independence and transparency that negates corruption. If they are wrong factually, and we know they are from what we've seen since then, that strikes a hard blow against the logic of Citizens United.
Kavanaugh: Citizens United is a decision of the Supreme Court. If someone wants to challenge that decision, they can do so on ground that it's based on erroneous premise.
Tillis, R-N.C., now asking questions.
Tillis: Do you want to clarify anything?
Kavanaugh: I'll let the record stand.
And actually we're going to Cruz, R-Texas. Tillis was speaking in his capacity as chair, because Grassley isn't here.
A woman was literally just carried out of the audience, the 15th protester today by my count.
Cruz: Why should it matter to the American people that a judge is a textualist?
Kavanaugh is speaking about the separation of powers and the role of an independent judiciary.
Also important to respect the compromises that may lie behind the text of the statute, don't want judges to upset those compromises.
Kavanaugh: Statute as written is what was passed by Congress and signed by the president. That is the law. Second, legislation is a compromise. When a case comes to court and we upset the compromise, we insert ourselves into the legislative process.
Cruz: What's the role of legislative history?
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