Highlights and "Low" Lights from Day 3 of Kavanaugh Hearings

The morning of Day 3 of the Kavanaugh confirmation hearings began with an hour of debate / grandstanding about the documents.

Sen. Lee points out that the issue with the Kavanaugh documents is the Presidential Records Act, a law of Congress' own creation. The custodian of the documents has given them to Senate Judiciary with the understanding that they'll be confidential, with exceptions on request.

— RNLA (@TheRepLawyer) September 6, 2018

Sen. Booker stole the show (it was very clearly a "show") by saying he was going to release documents designated as "committee confidential," inviting the consequences for the release of the documents and calling himself "Spartacus":

The political theater just kicked up a notch. It is outrageous that Senator Booker is unilaterally releasing confidential documents as a campaign stunt.

— Carrie Severino (@JCNSeverino) September 6, 2018

The only problem is that the documents had already been approved for public release just before 4 AM, due to the hard work of the staff overnight. Not to be deterred from his moment of resistance in the limelight, Sen. Booker started releasing still-confidential documents.  

Throughout the afternoon, SenBooker is now releasing additional documents still under the "Committee Confidential" classification. His team points out he is now actually violating the Senate process for the documents - which they also maintain he did last night during hearing.

— Shannon Bream (@ShannonBream) September 6, 2018

But Sen. Booker's original document release showed that Judge Kavanaugh was opposed to racial profiling:

Let me get this straight: "Spartacus" Booker violates Senate rules to leak confidential documents which show Kavanaugh giving reasonable legal advice in support of positions Booker himself believes? Beyond unhinged.

— Carrie Severino (@JCNSeverino) September 6, 2018

Sen. Lee on emails questioned by Sen. Booker: Once again, I can't see this as anything but something that helps you, with Republicans and with Democrats.

— RNLA (@TheRepLawyer) September 6, 2018

Sen. Tillis warned of the consequences of making Senate Judiciary a untrustworthy body for receiving confidential documents:

Sen. Tillis warns of consequences of making Senate Judiciary an untrusted body to receive documents under the Presidential Records Act. Suggests that senators release all email records related to Kavanaugh nomination immediately, says he is willing to do so.

— RNLA (@TheRepLawyer) September 6, 2018

The senators starting asking questions an hour into the hearing, with Democratic Senators largely trying to have Judge Kavanaugh commit to ruling in a certain way on future cases or share his personal views.  Judge Kavanaugh once again avoided all the Democrats' traps and shone with his vast and detailed understanding and knowledge of the law and legal theory:

Sen. Hatch: Never have I seen the constant interruptions we've had during this hearing. Confirmation hearings are supposed to be chance to hear from nominee, but this has been a circus. Worst is the attacks against people who are just in the room to support the nominee.

— RNLA (@TheRepLawyer) September 6, 2018

Judge Kavanuagh: Mens rea requirements are important because under due process clause, it's not right to convict someone based on a fact they didn't know. Dissented from en banc case where mandatory minimum sentence was elevated based on fact that defendant didn't know.

— RNLA (@TheRepLawyer) September 6, 2018

Sen. Hatch asks about applying old statutes to new technologies. Judge Kavanaugh says always look first to text of statutes. Balance of 4th Amendment liberty and privacy vs. law enforcement use of technology enormous issue going forward, e.g. Carpenter case last term.

— RNLA (@TheRepLawyer) September 6, 2018

Sen. Lee follows up on Sen. Booker's questions on emails last night, when Kavanaugh didn't have emails, noting that it would be hard for any lawyer to remember advice they provided in emails 18 years ago.

— RNLA (@TheRepLawyer) September 6, 2018

Judge Kavanaugh: I have never taken a position on constitutionality of indicting a sitting president. DOJ has longstanding position under presidents of both parties that sitting president may not be indicted. It's a timing / deferral question, not an immunity question.

— RNLA (@TheRepLawyer) September 6, 2018

Judge Kavanaugh: Courts upset compromises involved in legislative process if they do not stick to the text of the law as written, as passed by Congress and signed by the President.

— RNLA (@TheRepLawyer) September 6, 2018

Judge Kavanaugh: Part of stability, predictability, impartiality, public confidence in the rule of law is stare decisis. But Brown v. Board shows its not absolute, and that's a good thing. But important to rule of law.

— RNLA (@TheRepLawyer) September 6, 2018

Sen. Crapo notes that if anyone is worried about whether Judge Kavanaugh looks out for the "little guy," they just need to read his cases. https://t.co/OiQ2gTsuNw

— RNLA (@TheRepLawyer) September 6, 2018

Judge Kavanaugh notes that his tattered pocket Constitution is old enough to not contain the 27th Amd, ratified in 1992. He has written in 27th Amd. He uses it in teaching his Harvard Law classes, which he starts with tour of the Constitution.

— RNLA (@TheRepLawyer) September 6, 2018

Noting that his potential would be "endless" in private sector, Sen. Tillis asks why Judge Kavanaugh is doing this. Kavanaugh: From a young age, I've been committed to public service following example of my mom.

— RNLA (@TheRepLawyer) September 6, 2018

More political theater from a 2020 Dem presidential candidate. Shocking. https://t.co/SyTY7PKHC7

— RNLA (@TheRepLawyer) September 6, 2018

Judge Kavanaugh: Equal justice under the law means that everyone who ends up in an American court is entitled to due process and equal protection. Will prevail on law and facts, not based on identities of the parties or political views. Foundation of the rule of law we hold dear.

— RNLA (@TheRepLawyer) September 7, 2018

Judge Kavanaugh: Original meaning of the words of Constitution control over the words of any individuals involved in drafting. Notes from Convention and Federalist Papers are fascinating, can help understand, but they don't control over actual words of Constitution.

— RNLA (@TheRepLawyer) September 7, 2018

The RNLA will continue live-tweeting the hearing tomorrow, when the Senate Judiciary Committee will hear from invited witnesses on Judge Kavanaugh.