The Senate Judiciary Committee hearing on the confirmation of Judge Brett Kavanaugh, President Donald Trump’s nominee to the United States Supreme Court, opened with a cacophony of chaos Tuesday, Sept. 4, as demonstrators screamed “We dissent!” in protest and Democratic committee members, lead by California Sen. Kamala Harris and New Jersey Sen. Cory Booker, angrily moved to adjourn in order to vet thousands of pages of documents released Monday night.
“We cannot possibly move forward, Mr. Chairman, with this hearing,” Harris said, interrupting Committee chair, Sen. Chuck Grassley.
Democrats also strenuously complained about the White House withholding at least 100,000 more documents under executive privilege when Kavanaugh worked as an associate White House counsel. During that time, President George W. Bush considered rules governing terrorism suspects and same sex marriage, among other highly controversial subjects.
Connecticut Sen. Richard Blumenthal called the hearing “a charade and a mockery” and Vermont Sen. Patrick Leahy asked: “What are we trying to hide? Why are we rushing?”
Feinstein was Chair of the Senate Intelligence Committee when investigated the Bush administration’s torture program after the terrorist attacks on Sept. 11, 2001. Democrats have noted a contradiction between Kavanugh’s 2006 testimony when he told that committee he was “not involved in the questions about the rules governing detention of combatants” and a White House email, found in the trove of documents released before the conformation hearing, in which Kavanaugh offered to help prepare testimony from a senior administration official on the government’s surveillance of otherwise privileged conversations between specific terrorism suspects and their lawyers.
Feinstein is also a renowned proponent of gun restrictions—an issue that became intensely personal when she discovered the bullet-riddled body of her assassinated gay colleague, San Francisco Supervisor Harvey Milk more than 40 years ago. She became mayor, replacing George Moscone, who had also been assassinated. Feinstein is expected to challenge Kavanaugh on his dissent in a 2009 DC case in an appeals court where he argued that a ban on semiautomatic rifles should be unconstitutional since they “have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting and other lawful uses.”
But perhaps the biggest issue Feinstein is expected to take up is whether Kavanaugh believes Roe v. Wade, the 1973 landmark abortion rights case, was correctly decided. For instance, last year Kavanaugh opposed allowing an undocumented teenage girl in federal detention from obtaining an abortion, an opinion “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
Feinstein seemed to keep her cool as contentious protests and arguments disrupted the confirmation hearing. But she was both personal and precise, noting in her opening statement that Trump had promised a Supreme Court nominee who would be “anti-choice and pro-gun.” And, she added, “We believe what he said.”
But Feinstein also noted that Roe v Wade was bigger than abortion rights—setting up a fundamental right to privacy. “Roe is one in a series of cases that upheld an individual’s right to decide who to marry—it’s not the government’s right; where to send your children to school—the government can’t get involved; what kind of medical care at the end of life; as well as whether and when to have a family,” she said.
Here are Sen. Feinstein’s opening remarks Tuesday, Sept. 4, as prepared for delivery:
“I think it’s really important that people—as well as the judge, the nominee—understand how strongly we feel and why we feel that way.
I want to talk a little bit about one of the big decisions that we have the belief that although you told Senator Collins that you believe it was ‘settled law,’ the question is really do you believe that it’s correct law, and that’s Roe v. Wade.
I was, in the ‘50s and ‘60s, active first as a student at Stanford, I saw what happened to young women who became pregnant. And then subsequently I sat as an appointee of Governor Brown’s on the term setting and paroling authority for women in California who had committed felonies.
And so I sentenced women who had committed abortions to state prison and granted them paroles, and so came to see both sides—the terrible side and the human and vulnerable side.
And when you look at the statistics during those days, those statistics that the Guttmacher Institute has put out, are really horrendous.
For you, the president that nominated you has said ‘I will nominate someone who is anti-choice and pro-gun.’ And we believe what he said—we cannot find the documents that absolve from that conclusion.
So what women have won through Roe and a host of privacy cases to be able to control their own reproductive system, to have basic privacy rights, really extraordinarily important to this side of the aisle, and I hope the other side of the aisle as well.
Last year, you drafted a dissent in Garza v. Hargan, and that’s a case where a young woman in Texas, I believe, was seeking an abortion. In that dissent you argued that even though the young woman had complied with the Texas parental notification law and secured an approval from a judge, she should nonetheless be barred.
In making your argument, you ignored—and I believe mischaracterized—the Supreme Court precedent. You reasoned that Jane Doe should be unable to exercise her right to choose because she did not have family and friends to make her decision.
The argument rewrites Supreme Court precedent, and if adopted, we believe would require courts to determine whether a young woman had a sufficient support network when making her decision, even in cases where she has gone to court.
This reason, we believe—I believe—demonstrates that you are willing to disregard precedent. And if that’s the case, because just saying something is settled law, it really is, is it correct law?
The impact of overturning Roe is much broader than a women’s right to choose. It’s about protecting the most personal decisions we all make from government intrusion.
Roe is one in a series of cases that upheld an individual’s right to decide who to marry—it’s not the government’s right; where to send your children to school—the government can’t get involved; what kind of medical care at the end of life; as well as whether and when to have a family.
And I deeply believe that all these cases serve as the bulwark of privacy rights that protect all Americans from the over-involvement of the government in their lives. And to me that’s extraordinarily important.
Next, I’d like to address the president’s promise to appoint a nominee blessed by the NRA.
In reviewing your judicial opinions and documents, it’s pretty clear that your views go well beyond simply being “pro-gun.” And I’d like to straighten that out.
It’s my understanding that during a lecture at Notre Dame Law School, you said that you would be ‘the first to acknowledge that most other lower-court judges have disagreed’ with your views on the Second Amendment.
For example, in District of Columbia v. Heller, you wrote that unless guns were regulated either at the time the Constitution was written or traditionally throughout history, they cannot be regulated now.
In your own words, gun laws are unconstitutional unless they are ‘traditional or common in the United States.’ You concluded that banning assault weapons is unconstitutional because they have not historically been banned. This logic means that even as weapons become more advanced and more dangerous, they cannot be regulated.
Judge Easterbrook, as you know a conservative judge from the Seventh Circuit, concluded that that reasoning was “absurd.” And he pointed out that “a law’s existence can’t be the source of its own constitutional validity.”
In fact, I’m left with the fact that your reasoning is far outside the mainstream of legal thought and that it surpasses the views of Justice Scalia, who was clearly a pro-gun justice.
Even Scalia understood that weapons that are like M-16 rifles, or weapons that are most useful in military service, can in fact be regulated.
And there’s no question that assault weapons like the AR-15 were specifically designed to be like the M-16.
The United States makes up 4 percent of the worldwide population but we own 42 percent of the world’s guns.
Since 2012, when 20 first graders and six school employees were killed at Sandy Hook Elementary, there have been 273 school shootings. This is an average of five shootings every month, and a total of 462 children, teenagers, teachers and staff shot, and 152 killed.
I care a lot about this. I authored the assault weapons legislation that become law for 10 years and I’ve seen the destruction.
If the Supreme Court were to adopt your reasoning, I fear the number of victims would continue to grow and citizens would be rendered powerless in enacting sensible gun laws. So this is a big part of my very honest concern.
You’re being nominated for a pivotal seat. It would likely be the deciding vote on fundamental issues.
During your time in the White House, when you were staff secretary—some people regard it as kind of a monitor, monitoring things going in and going out. But I think it’s much more. And you yourself have said that that’s the period of my greatest growth. And so we try to look at it. And the only way we can look at it is to understand the documents and it’s very, very difficult.
I don’t want to take too much time, but we’ve heard a lot of noise. Behind the noise is really a very sincere belief that it’s so important to keep in this country, which is multi-ethnic, multi-religious, multi-economic—a court that really serves the people and serves this great democracy. And that’s my worry. That’s my worry.”