On his first full day of questioning, Judge Brett M. Kavanaugh, President Trump\u2019s nominee to the Supreme Court, would not say whether a president could be subpoenaed or pardon himself.<\/b>
\nWASHINGTON \u2014 Judge Brett M. Kavanaugh, President Trump\u2019s nominee to the Supreme Court, on Wednesday dodged direct questions about whether the Constitution would allow Mr. Trump to use the powers of the presidency to thwart the Russia collusion and obstruction investigations that are swirling around his administration.
Testifying before the Senate Judiciary Committee on a grueling second day of hearings, Judge Kavanaugh refused to say whether he believes Mr. Trump, as a sitting president, could be subpoenaed by Robert S. Mueller III, the special counsel, to testify in the sprawling inquiry. Answering questions in public for the first time since his nomination, the judge also declined to say whether Mr. Trump could escape legal jeopardy by pardoning himself or his associates.
\u201cI\u2019m not going to answer hypothetical questions of that sort,\u201d Judge Kavanaugh said, insisting that it would be inappropriate for a Supreme Court nominee to publicly offer views on issues that might come before the court once he is a justice.
Judge Kavanaugh also declined to say he would disqualify himself from cases concerning Mr. Trump.
In a hearing that began in the morning, stretched into the night, and seesawed between intense grilling by Democrats and fawning praise by Republicans, Judge Kavanaugh sought to present himself as an evenhanded arbiter of the law rather than a partisan ideologue driven by a desire to carry out a Republican policy agenda. He parried questions, without any obvious blunders, on matters ranging from abortion to gun rights to executive powers and arcane provisions of antitrust law.
At least two more days of hearings remain, but absent a startling revelation, he appears headed to confirmation by the end of the month because Republicans remain largely united behind his nomination.
But Judge Kavanaugh did little to win over Democrats. Speaking generally, he insisted that he would be an independent justice prepared to rule against the president who appointed him. \u201cNo one is above the law in our constitutional system,\u201d he said.
At the same time, he did not retreat from views offered in law review articles that revealed a robust conception of presidential power, views he said had been forged in large part by five years of service in the White House under President George W. Bush.
Under attack from progressives and Democrats who say he will roll back abortion rights, Judge Kavanaugh said he believes that Roe v. Wade, the 1973 landmark Supreme Court case establishing a woman\u2019s right to an abortion, was \u201csettled as a precedent of the Supreme Court,\u201d and as such, deserves respect from judges. But he did not say whether he believes Roe was correctly decided. But then he noted a subsequent case, the 1992 case of Planned Parenthood v. Casey, which narrowed the scope of Roe at the same time that it reaffirmed Roe as a precedent.
Casey, which gave states the authority to regulate abortion so long as those regulations do not pose an \u201cundue burden\u201d on the woman, is \u201cprecedent on precedent,\u201d he said.
On that issue and others, Judge Kavanaugh repeatedly sought to demonstrate empathy, telling senators that when it comes to understanding the real-life implications of abortion, \u201cI don\u2019t live in a bubble. I understand. I live in the real world.\u201d
He defended his dissent last year in Garza v. Hargan, in which he argued that the Trump administration should have been allowed to temporarily block an undocumented teenager from having an abortion while it sought to place her with a sponsor. He said he had followed Supreme Court precedents, even as he acknowledged that there was no directly applicable case.
\u201cI did my level best in an emergency posture,\u201d Judge Kavanaugh said.
He said that took the teenager\u2019s situation into account. \u201cI tried to recognize the real-world effects on her,\u201d he said. \u201cI said consider the circumstances. She\u2019s a 17-year-old, by herself, in a foreign country. In a facility where she\u2019s detained. And she has no one to talk to. And she\u2019s pregnant. Now that is a difficult situation.\u201d
Senator Richard Blumenthal, Democrat of Connecticut, said Judge Kavanaugh had participated in an attempt to deny the teenager access to a constitutional right, placing her health at risk.
Protesters continued to interrupt the hearing, adding to the tension after an opening day on Tuesday in which dozens of people were arrested for loudly disrupting the proceedings. There were more arrests on Wednesday. One woman was led out of the hearing room shouting \u201csham president, sham justice\u201d; another hollered, \u201cYou\u2019re gaslighting the American people,\u201d drowning out Judge Kavanaugh as he calmly carried on.
Democratic senators angrily railed against a swiftly moving confirmation process, accusing Republicans on the committee of refusing to make public documents that they said call into question Judge Kavanaugh\u2019s honesty about his past congressional testimony and his record as a political operative and a lawyer in the Bush White House.
Senator Patrick J. Leahy, Democrat of Vermont, raised two Bush-era scandals with Judge Kavanaugh, and he suggested that Bush White House emails in the Judiciary Committee\u2019s possession may contradict testimony the nominee made more than a decade ago \u2014 if only they could be released publicly.
One of the scandals was the disclosure in late 2003 and 2004 that a Republican Judiciary Committee staff member had infiltrated the Democrats\u2019 confidential internal files about which of President George W. Bush\u2019s judicial nominees to try to block and with what tactics. The other was the disclosure that after the Sept. 11,2001, terrorist attacks, the Bush administration had secretly ordered the National Security Agency to intercept Americans\u2019 phone calls and emails without obtaining the judicial warrants seemingly required by the Foreign Intelligence Surveillance Act.
At his appeals court confirmation hearing in 2006, Judge Kavanaugh \u2014 who had worked as an associate White House counsel in the Bush administration \u2014 told senators that he did not know anything about the infiltration of Senate Democrats\u2019 files on judicial nomination fights or about the warrantless wiretapping program before they eventually became public.
But Mr. Leahy indicated that documents marked \u201ccommittee confidential\u201d \u2014 and kept secret from the public \u2014 provide evidence that Judge Kavanaugh had contact with Manuel Miranda, then a Republican staff member on the Judiciary Committee, and had more involvement with the surveillance program than he had acknowledged.
\u201cI am concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me,\u201d Mr. Leahy said. \u201cAnd that would contradict your prior testimony. It is also clear from public emails \u2014 and I\u2019m refraining from going into nonpublic ones \u2014 that you had reason to believe materials were obtained inappropriately at the time.\u201d
Judge Kavanaugh insisted that everything he had testified to before was \u201c100 percent accurate,\u201d but indicated that he was not sure what Mr. Leahy was referring to.
With Democrats casting him as a partisan who was nominated by Mr. Trump only to protect the president, Judge Kavanaugh spent considerable time trying to demonstrate his independence. One case he cited to buttress his argument was notable: United States v. Nixon, the 1974 decision in which the Supreme Court unanimously ruled that President Richard M. Nixon had to comply with a subpoena seeking tapes of his conversations in the Oval Office.
In 1999, Judge Kavanaugh mused aloud that \u201cmaybe Nixon was wrongly decided.\u201d He made the statement soon after serving under Ken Starr, the independent counsel who investigated President Bill Clinton. Judge Kavanaugh\u2019s allies have said he meant the statement as a critique of the legal strategy of Mr. Clinton\u2019s lawyers.
But on Wednesday, he called it \u201cone of the greatest moments because of the political pressures of the time.\u201d
\u201cThe courts stood up for judicial independence in a moment of national crisis,\u201d Judge Kavanaugh said, ranking the decision as one of the Supreme Court\u2019s greatest achievements.
Judge Kavanaugh also sought to portray himself as an advocate for women. He described sexual harassment allegations against Alex Kozinski, a former federal appellate judge for whom he once clerked, as \u201ca gut punch for me,\u201d and said he knew nothing of the behavior. And he told the committee he has made aggressive effort to hire female clerks; 25 of his 48 clerks were women.
On gun rights, Judge Kavanaugh told the committee the Second Amendment protected the right of Americans to own semiautomatic rifles because they are in \u201ccommon use\u201d and not a \u201cdangerous and unusual weapon\u201d \u2014 a position he took in a much-publicized 2011 dissent, which he said was rooted in Supreme Court precedent. That prompted an outcry from Senator Dianne Feinstein of California, the top Democrat on the judiciary panel.
\u201cHow do you reconcile what you\u2019ve just said with the hundreds of school shootings using assault weapons that have taken place in recent history?\u201d she asked.
\u201cSenator, of course the violence in the schools is something we all detest,\u201d the judge replied. But he added, \u201cAs a judge my job, as I saw it, was to follow the Second Amendment opinion of the Supreme Court.\u201d<\/p>\n

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