Klobuchar: You find out later that your employer is able to exercise religious rights.
Baker: Insurance company had told me it would be covered. We found out about cost about a month before wedding.
Baker had done due diligence to make sure IUD was covered, then found out right before her wedding that she had to pay $1200.
Klobuchar to Amar (Yale prof): It is not my view that the nominee has standard opinions.
Kennedy, R-La.: I find this testimony helpful. I want to thank my colleague, Rep. Richmond (also from Louisiana).
Kennedy to Baker: I'm a Methodist too. I was raised in Presbyterian church. My wife was Methodist, so we compromised and I became a Methodist.
Kennedy has a few other playful remarks with other witnesses.
Kennedy listing accomplishments Congress with Trump have made in past two years, including cutting taxes and confirming federal judges.
Kennedy: I'm proud of that record.
Whitehouse to Amar (Yale prof): You mentioned recusals. When you have a judicial nominee whose name has been put forward by the subject of an ongoing criminal investigation named in open court as directing other activity, in the event that those criminal investigations should come before the court, and the nominee is on the court, it's fair to say that question of recusal, is it not?
Amar: It is, and I think back to the Nixon tapes case, one justice did recuse, three did not. My thought is that it has to be decided when the case arises.
Whitehouse: Since that episode, there has been case law in area of judicial recusal?
Whitehouse: What is your summary of Caperton?
Amar: It involved state elected judiciary, such judges have to raise money to run campaigns, which is different from federal judges.
Amar: Important to recognize that Caperton case involved a state elected judiciary, which is a very different situation. One of the great glories of the federal system is that you don't have to run for office.
Whitehouse: What was the standard? Was it not that the funder had a significant and disproportionate influence on that judge occupying that seat?
Amar: There were about 40 different factors identified by Roberts in dissent.
Whitehouse: In this case, a pending criminal investigation by someone who has 100% put the judge in the seat. Do you not see any potential relevance?
Whitehouse made similar points yesterday in his questioning of Kavanaugh.
Amar: It's not 100%. That's what this body is about. Any concern about promises would be a reason to vote no.
Amar: In Marbury, there is an interesting recusal question of whether Chief Justice Marshall should have recused.
Amar: Marbury v Madison has a very interesting recusal question, says John Marshall should have recused himself because he had first-hand knowledge of the case, not because of who appointed him.
Feinstein recognized to correct the record about abortion statistics.
Feinstein is correcting record: Up to 1.2 million illegal abortions, not deaths, in 50s and 60s.
Hatch: Asks Olson again about Kavanaugh's reputation in legal community, Olson doesn't know anyone with a better reputation.
What is he like at oral argument? Very attentive and well-informed. Has read the briefs and understands the history. Asks very good questions, as Supreme Court justices do.
Can't tell from his questions where he's going to come out.
Amar: Most important job of Supreme Court justice is constitutional interpretation. He is a deep historical thinker. He also brings out the best in others.
Hatch to Amar: Why should people on both sides of aisle support Kavanaugh? He is the best qualified of the conservative judges who might have been nominated, and he will help bring out the best in others. Wants fellow liberals to hear that Kavanaugh will be better than many are saying on things like voting rights and federal power to implement the Reconstruction amendments.
Coons to Rep. Richmond: Do you think Kavanaugh is the right nominee to replace Kennedy, a critical voice in Fisher, an affirmative action case?
Richmond: Question of affirmative action has been asked as to whether it's still necessary. Only way to stop ball rolling down hill is an equal and opposite force. Affirmative action is that equal and opposite force from ball of racism rolling down hill for centuries. In last case, Justice Scalia actually questioned ability of black students to succeed at top universities.
Coons to Baker: For you, what was shocking was decision that chooses religious views of employer over your views of preparing for marriage and children.
Coons to Murray: In one dissent, Kavanaugh clear that complicity of corporation in being forced to check box should outweigh liberty interest of a real, live person.
Murray: There are a number of troubling messages that Kavanaugh evinces in that dissent. First is the reason of Ms. Baker, right of privacy fundamental in decision to bear a child.
What we saw in Priests for Life is that Kavanaugh would defer to the wishes of the employer over the concerns of the employee.
Coons to Murray: Kavanaugh said all roads lead through Glucksberg. If that test had been applied, would outcomes have been the same in a range of cases. Are you considered that Kavanaugh might depart from Kennedy's jurisprudence in substantive due process?
Murray: Kavanaugh is not a jurist in the mold of Justice Kennedy.
Clear from Kavanaugh's judicial record that he's not in the mold of Justice Kavanaugh. Kavanaugh evinces a crabbed understanding of the right to liberty.
Decisions like Obergefell are all in peril.
Sen. Lee, R-Utah, to Olson: Could you tell us about Morrison v. Olson case?
Olson: This was about the old independent counsel statute.
Olson: I have heard from a number of people in the academic world that Justice Scalia's dissent has received favorable attention over the years.
Olson talking about Scalia's dissent in this case. The question was whether power that's supposed to belong to the president can be taken away from that office and given to other entities.
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