September 05. 2018 11:34PM

Trump's Supreme Court pick touts independence, dodges questions

By LAWRENCE HURLEY and GINGER GIBSON
Reuters


U.S. Supreme Court nominee judge Brett Kavanaugh testifies during his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington on Wednesday. (REUTERS/Chris Wattie)

WASHINGTON — Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, embraced the importance of judicial independence on Wednesday during his U.S. Senate confirmation hearing but sidestepped questions from Democrats about whether a President possesses the power to pardon himself or fire a prosecutor investigating him.

On the second day of the contentious hearing interrupted repeatedly by dozens of shouting protesters opposed to Kavanaugh, senators pressed the conservative federal appeals court judge on his views toward presidential power, abortion and gun rights.

Kavanaugh signaled respect for the landmark 1973 Roe v. Wade Supreme Court ruling legalizing abortion nationwide, calling it an important legal precedent that had been reaffirmed by the justices over the decades. He condemned the spate of U.S. school shootings but defended an opinion he wrote questioning whether semi-automatic rifles could be banned.

Trump has often criticized the federal judiciary. Some liberals have expressed concern Kavanaugh could serve as a rubber stamp for Trump and protect him from lawsuits and investigations.

Asked by the Judiciary Committee’s Republican chairman, Chuck Grassley, whether he would have any trouble ruling against Trump or the executive branch, Kavanaugh replied, “No one is above the law in our constitutional system.”

“I think the first quality of a good judge in our constitutional system is independence,” Kavanaugh added.

But Kavanaugh dodged Democratic Senator Dianne Feinstein’s question about whether a sitting President can “be required to respond to a subpoena,” a query that could come into play as Special Counsel Robert Mueller investigates potential collusion between Trump’s 2016 presidential campaign and Russia.

“I can’t give you an answer on that hypothetical question,” Kavanaugh said, noting that previous high court nominees also have avoided queries about matters that might later come before them.

Kavanaugh similarly sidestepped Democratic Senator Christopher Coons’ question about whether he still believes, as he wrote two decades ago, that a President could fire a special prosecutor investigating him.

“All I can say is that was my view in 1998,” Kavanaugh said.

Kavanaugh avoided Democratic Senator Patrick Leahy’s question about whether a President has the power to pardon himself, or someone else in exchange for promising not to testify against him. Trump, in a June Twitter post, claimed “the absolute right to PARDON myself.”

Kavanaugh declined to answer, but said, “The question of self-pardons is something I have never analyzed.”

In citing examples of judicial independence, Kavanaugh lauded a 1974 ruling ordering President Richard Nixon to hand over subpoenaed materials during the Watergate scandal and a 1954 Supreme Court ruling ending racial segregation in public schools.

Feinstein asked Kavanaugh about his 2009 article that concluded sitting presidents should be free from the distractions of civil lawsuits, criminal prosecutions and investigations. Kavanaugh promised a “completely open mind” if such issues came before him as a judge.

’Grasping at straws’

Trump told reporters at the White House he was pleased with the hearing and said “the other side is grasping at straws.”

If confirmed, Kavanaugh is expected to move the court, which already had a conservative majority, further to the right. Senate Democrats have vowed a fierce fight. But with Trump’s fellow Republicans holding a slim Senate majority, and with no sign of any of them opposing the nomination, it remains likely Kavanaugh will be confirmed to the lifetime job on top U.S. judicial body.

Liberals are concerned Kavanaugh could provide a decisive fifth vote on the nine-justice court to overturn the 1973 abortion ruling.

Kavanaugh called the Roe decision “an important precedent of the Supreme Court that has been reaffirmed many times.” He highlighted the 1992 Planned Parenthood v. Casey ruling that reaffirmed Roe, calling it a “precedent on precedent.”

While stopping short of calling the Roe case correctly decided, Kavanaugh’s remarks suggested he might be cautious toward overturning it. But that may not preclude him from joining the court’s other conservatives in restricting its scope by upholding abortion restrictions enacted in conservative states.

Pressed by Democratic Senator Dick Durbin, Kavanaugh defended a ruling he took part in issuing an order preventing a 17-year-old illegal immigrant detained by U.S. authorities in Texas from immediately having an abortion. The ruling was later overturned and she underwent the abortion.

On gun rights, Feinstein pressed Kavanaugh on his 2011 dissent in an appellate ruling upholding a District of Columbia gun law banning semi-automatic rifles. Kavanaugh said such guns are covered by the U.S. Constitution’s Second Amendment, which protects the right to bear arms.

Kavanaugh said his opinion was based on Supreme Court precedent that indicated semi-automatic weapons are in common use.

“Of course the violence in the schools is something we all detest and want to do something about,” Kavanaugh said.

Kavanaugh declined to comment on how he would approach a challenge to a provision of the Obamacare healthcare law barring insurance companies from declining coverage for people with pre-existing medical conditions, an issue that is the subject of a lawsuit pending in Texas.

He differed with a White House characterization of his record on government regulations. The White House has said Kavanaugh “led the effort to rein in unaccountable independent agencies” and his rulings against environmental and consumer protection regulations. Kavanaugh said he also has upheld many government regulations over the years.

Trump picked Kavanaugh, 53, to replace Justice Anthony Kennedy, who announced his retirement in June.