Kavanaugh Hearings: Day Three

The three themes that dominated the third day of Judge Kavanaugh’s confirmation hearings were the same three topics discussed at length the day before:  executive power, abortion, and gun rights. Executive power received the most attention.

Making headlines were Senator Booker’s release of “committee confidential” Kavanagh emails discussing abortion and racial-profiling before they were cleared for release to the public, Judge Kavanaugh’s refusal to say whether he thinks Roe v. Wade was decided correctly, and his refusal to condemn President Trump’s attacks on the judiciary.  

Issues related to state and local governments received a little attention, including judicial deference to federal agencies, which was discussed a number of times the day before.

Presumably to portray Kavanaugh as pro-employer, Senator Feinstein asked Judge Kavanaugh to discuss a case where in dissent he ruled against a trainer who was killed interacting with a killer whale.

Senator Klobuchar noted that many states have restricted access to voting since Shelby County v. Holder, which struck down the preclearance formula in the Voting Rights Act. She asked whether courts should consider widespread efforts to restrict voting. Judge Kavanaugh responded that in a particular case he would want to see the record.

Senator Cruz, presumably to highlight Judge Kavanaugh’s support of religious liberty, asked Kavanaugh to discuss a Supreme Court amicus brief he wrote in a case involving prayer before high school football games in Texas.

When Senator Blumenthal asked Judge Kavanaugh how he would rule in Fourth Amendment search cases involving emerging technology Judge Kavanaugh, unsurprisingly, didn’t answer directly. He did speak favorably about Chief Justice Roberts’ majority rulings in recent cases which have favored criminal defendants, and a recent pro-privacy ruling of his own which the Supreme Court adopted.

Interestingly, Judge Kavanaugh discussed Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) a number of times with a few Senators. He stated it stands for the proposition that “the days of discriminating against gay and lesbian Americans are over.” This case involved a cake maker who refused to create a wedding cake for a same-sex couple. The cake maker won his case because the Supreme Court concluded the Colorado Civil Rights Commission failed to give full and fair consideration to his religious objection.  

Issues of interest to state and local governments may have received somewhat broader coverage on day three of the Kavanaugh hearings—but none received much depth. The final day of hearing, which will include witnesses other than Kavanaugh, is unlikely to be particularly illuminating in regard to these issues.