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“What Are They Hiding?”: Kavanaugh Confirmation Hearings Begin Despite Suppression of 100K Documents

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Confirmation hearings begin for Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the Supreme Court. If he is confirmed, it would likely make the court the most conservative since the 1930s. Kavanaugh is 53 years old and could serve on the Supreme Court for decades to come. Critics warn his confirmation could lead to major rollbacks of civil rights, environmental regulations, gun control measures, voting rights and reproductive rights, including possibly overturning Roe v. Wade. We speak with Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Last week the committee released a damning report on Kavanaugh’s record on cases and issued a statement opposing Kavanaugh’s nomination. She will attend the Senate confirmation hearings for Kavanaugh this week.

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: Confirmation hearings begin today for Judge Brett Kavanaugh, President Trump’s pick to fill Justice Anthony Kennedy’s seat on the Supreme Court. If he is confirmed, it would likely make the court the most conservative since the 1930s. Kavanaugh is 53 years old and could serve on the Supreme Court for decades. Critics warn his confirmation would lead to major rollbacks of civil rights, labor protections, environmental regulations, gun control measures, voting rights and reproductive rights, including possibly the overturning of Roe v. Wade.

Just hours before the hearings were set to begin, a lawyer for former President George W. Bush released more than 40,000 pages of documents from Kavanaugh’s time in the White House Counsel’s Office between 2001 and 2003. He was also staff secretary in the White House from 2003 to 2006, before Bush appointed him to the U.S. Court of Appeals of the District of Columbia. Senate Minority Leader Charles Schumer tweeted Monday, quote, “Not a single senator will be able to review these records before tomorrow,” and he called for the hearings to be delayed. This comes as the Trump administration is withholding more than 100,000 pages of Kavanaugh’s records on the basis of presidential privilege. On Sunday, Senate Judiciary Committee member Dick Durbin joined in calls to delay the hearings.

SEN. DICK DURBIN: Assertion of executive privilege by the White House to take 100,000 documents and say the American people will not get a chance to see them, as they reflect on Kavanaugh’s background, is the first time in history. This denial of access to documents violates a rule that we thought was the tradition of the Senate under Senator Sessions and Senator Leahy, time and again, when it came to Obama nominees. They are suppressing these documents. If we’re lucky, we will see 6 percent—6 percent—of all of the documents that have been produced, or could be produced, to reflect on Kavanaugh’s true position on issues.

AMY GOODMAN: Today’s hearings will begin with opening statements and introductions from witnesses, including former Secretary of State Condoleezza Rice. Democrats will call former President Richard Nixon’s White House counsel, John Dean, as a witness to testify about the limits of executive power. After the hearings, the full Senate will vote on the committee’s recommendation on Kavanaugh’s nomination. Last year, Majority Leader Mitch McConnell used the so-called nuclear option to confirm Trump’s other Supreme Court nominee, Neil Gorsuch, with just 51 votes instead of 60. Meanwhile, conservative groups, like the National Rifle Association, are spending millions on TV ads in states from Maine to Alaska where key senators’ votes on Kavanaugh’s confirmation are at stake.

For more, we go to Washington, D.C., where we’re joined by Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which also leads the nonpartisan Election Protection coalition. Last week they released a damning report on Kavanaugh’s record on cases and also issued a statement opposing Kavanaugh’s nomination to the Supreme Court. Kristen Clarke will attend the Senate confirmations for Kavanaugh all this week. They start today.

Kristen Clarke, welcome back to Democracy Now! Can you talk about what is known at this point? A hundred thousand documents the Trump administration is still holding, and yet you’ve done a comprehensive look at Brett Kavanaugh’s record, to the extent that you can. Talk about your concerns.

KRISTEN CLARKE: So this is a most extraordinary position. Securing a lifetime seat on our nation’s highest court really requires that both the Senate and public exercise the highest level of vigilance in understanding who Brett Kavanaugh is, in understanding his record both on and off the court.

My organization, the Lawyers’ Committee for Civil Rights Under Law, undertook the review that we were able to. We looked at his cases during his time on the D.C. Circuit. We looked at his cases in the areas of criminal justice, voting rights, environmental justice, economic justice and more. And we came to the very solid conclusion that he is somebody who will turn the clock back when it comes to advancing civil rights and protecting constitutional rights in our country.

Let me give one very powerful example that I think illustrates his judicial philosophy and the kind of judge that he would likely be, if confirmed to the court. In an incredibly important case called Homer v. EPA, Brett Kavanaugh struck down a critical rule passed by the EPA to deal with cross-state air pollution. It was called the Cross-State Air Pollution Rule. That case went up to the Supreme Court, and he was reversed. Brett Kavanaugh was reversed by a margin of 6 to 2, with both Justice Roberts and Kennedy in the majority. The late Justice Scalia and Justice Clarence Thomas were in the dissent in that case. But it shows that he is somebody who squarely aligns with Justice Thomas when it comes to judicial philosophy. It shows that he is somebody who puts the interests of industry over people, the industry of the powerful over the minority. He is somebody who would gut and undercut the important work that our federal agencies are undertaking right now to protect the American public when it comes to environmental racism.

And, you know, he is somebody who would absolutely shift the court to the right. Justice Kennedy was by no means a progressive on the court, but his vote was in play. And, in fact, in about 50 cases concerning civil rights matters, he and Roberts were on opposite ends of the spectrum. With Brett Kavanaugh, we can expect that 100 percent of the time we’ll likely have five conservative justices who are turning the clock back on incredibly important areas for minority communities in our country.

JUAN GONZÁLEZ: Well, Kristen Clarke, before we get more deeply into his actual record, this whole issue of the documents and the Trump administration not wanting to release 100,000 documents from his time as a staffer in the White House, in the Bush White House. I want to turn to then-Senator Jeff Sessions speaking in 2010, when he was the senior Republican on the Senate Judiciary Committee, and the same issue arose back then. He warned he would not allow confirmation hearings to go forward for President Obama’s Supreme Court nominee Elena Kagan until the release of 160,000 pages of documents related to Kagan’s days in the Clinton White House as solicitor general—were released.

SEN. JEFF SESSIONS: We’re heading to what could be a train wreck. I don’t believe that this committee can go forward with an adequate hearing, when the public record of a nominee of this importance, to such a lifetime position as justice on the Supreme Court—it can go forward without these documents in question, so…

JUAN GONZÁLEZ: That was Jeff Sessions in 2010. And all of those documents were released by the Obama administration. Kristen Clarke, your take on this?

KRISTEN CLARKE: This is total hypocrisy. There is a double standard in place. In the modern era, the Senate has insisted that we have full transparency when it comes to evaluating the records underlying Supreme Court nominees. And as you heard, Jeff Sessions, then senator, threatened to boycott Ms. Kagan’s nomination. And ultimately, every single document from Kagan’s tenure in the White House was turned over. There’s a gross double standard in place today.

In just an hour or so, the Senate will open hearings on Brett Kavanaugh despite the fact that millions of documents from his time in the White House, where he worked in both the White House Counsel’s Office and as secretary, working shoulder to shoulder with President Bush—none of these materials have been turned over. Chairman Grassley made the inexplicable decision to only seek documents pertaining to his time in the White House Counsel’s Office. And on Friday night, we saw a memo come out from a private lawyer who has been retained to review and screen those documents, saying that they weren’t turning 100,000 of those documents over because of executive privilege.

As far as we know, this is the first time a president or a White House has ever invoked executive privilege in this era—in this way. And we have to remember, this is the Trump White House invoking the privilege for documents from the Bush era, from a period that predates him by over a decade. Bush himself has said, “I authorize these documents to be disclosed. I want this review process to be guided by the principle of transparency.” But as we’ve seen throughout the Trump administration, their rule is to operate in secrecy and to keep information away from the American public.

It is shameful, frankly, that the Senate is moving forward with this confirmation process today. They should suspend those hearings until they have all of those materials and can do their proper due diligence. I am still waiting for a senator, frankly, who’s courageous enough to file suit and seek judicial relief, because, frankly, we’re in uncharted territory. We have never seen, in a modern era, a process that has been so shrouded in secrecy as this one.

And it’s important that we ask, “What are they hiding in those materials?” You know, Brett Kavanaugh, one of the critical roles that he played in the White House was reviewing and vetting judicial nominees. Perhaps we’ll see materials where he explicitly asked whether a nominee would overturn Roe v. Wade, whether a nominee believe that discrimination was real and ongoing in our country. Perhaps there are red flag indicators that would tell us precisely who Brett Kavanaugh truly is and what his judicial outlook is. I think the White House is fearful of this, and it’s why they have gone through extraordinary steps to hide this information from the American public.

AMY GOODMAN: This was all as he was staff secretary for George W. Bush from 2003 to '06. Following up on this, Senate Minority Leader Chuck Schumer tweeted last week, “Sen. Grassley now admitting the Senate will only receive half the documents that he requested (~900k), before the hearing starts. That means Senators will have seen only 6% of Kavanaugh's records, & the public will have seen 3%,” Schumer said. He continued in a second tweet, “Further, these documents aren’t the official National Archives’ curation of White House docs, but the ones that have been pre-screened by Kavanaugh’s former deputy and George Bush’s private lawyer. The Senate will likely have ZERO records from the Archives” in time for the hearing. And The New York Times reported that, in fact, Mitch McConnell said, when the possibility of another Supreme Court pick on the part of Trump, do not go with Brett Kavanaugh “because of his long paper trail.” Kristen Clarke?

KRISTEN CLARKE: Well, you know, let me just take a moment to talk about his record on affirmative action. You know, there are two incredibly important cases that are moving through the courts right now, a challenge to affirmative action efforts at Harvard and the University of North Carolina. And my organization has been involved in both of those cases for the past three years, where we are defending a diverse group of students who believe that racial diversity on college campuses today is important. And we are standing by the ongoing efforts of higher educational institutions that are working to promote diversity on campus. And Brett Kavanaugh has espoused very troubling views in this area. He is someone who espouses a colorblind outlook on the world. He is somebody who believes that America, there is only one race, which of course does not comport with the work that we do at my organization, where we see discrimination outright on the basis of race every day.

It’s important that we have access to these documents and materials so we can really understand who he is, before we move forward with this confirmation process. And my hope is that when the Senate goes in today, they will realize that this is a sham hearing, that they have rights—the right to access all of those materials in the way that we have done for each and every nominee in the modern era.

And, you know, I want to underscore one point, because there are lots of big numbers being thrown around about the volume of materials that have been received to date. It’s quality over quantity. Remarkably, about 42,000 duplicate copies of a Heritage Foundation flier were turned over to the Senate. This was an event organized by Justice Thomas’s wife in conjunction with the Heritage Foundation. And those 42,000 duplicate documents do nothing to aid the Senate in carrying out its important constitutional obligation of providing advice and consent when it comes to reviewing Supreme Court nominees. I hope that at the end of today, if it goes as awful as I expect it will, that they will move to suspend these hearings and give themselves the time they need to do proper due diligence on Brett Kavanaugh.

AMY GOODMAN: We’re going to go to break and then come back. We want to talk about issues of labor and the pregnant immigrant young woman who Brett Kavanaugh tried to stop having an abortion, despite a judge’s ruling. In the end, she got the abortion, that is legal in this country. This is Democracy Now! Kristen Clarke is president and executive director of the Lawyers’ Committee for Civil Rights Under Law. We’ll continue with her in a moment.


AMY GOODMAN: “Hi-Fly” by the late Randy Weston. The legendary pianist and composer died Saturday at the age of 92 at his home in Brooklyn, New York. To see our full hour with him as we sat at the piano at the Tribeca Performing Arts Center, go to democracynow.org. I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: Well, confirmation hearings begin today for Judge Brett Kavanaugh, President Trump’s pick to fill Justice Anthony Kennedy’s seat on the Supreme Court.

AMY GOODMAN: And we’re getting response from Kristen Clarke of the Lawyers’ Committee for Civil Rights Under Law, who released a damning report on Kavanaugh’s record on a number of different cases. Juan?

JUAN GONZÁLEZ: Kristen Clarke, I’d like to ask you about an aspect of Kavanaugh’s record that really hasn’t gotten much attention: his record when it comes to working people and labor. Yesterday, on Labor Day, Hillary Clinton tweeted out, “Happy Labor Day. There’s no better time to talk about why workers’ rights would suffer if Brett Kavanaugh, whose hearings for a lifetime appointment to the Supreme Court start tomorrow, is confirmed.” And Hillary Clinton pointed to a few cases: AFL-CIO v. Gates, where he was involved in, and also a case of Verizon—2010 case, Verizon New England v. the NLRB, where Kavanaugh wrote the majority opinion in that case for the D.C. Circuit Court, basically saying that Verizon workers had no right to post pro-union signs on their cars if the cars were parked in a Verizon lot while they were working.

KRISTEN CLARKE: There’s also a case involving a woman who was killed tragically in an accident at SeaWorld. And in that case, OSHA, the agency that imposes safety regulations on employers, found basis, found a basis and cause for—essentially finding that SeaWorld did not do enough to make known the hazards tied with this work. And Kavanaugh, again, is somebody who puts the interests of employers and industry over the interests of little people. The ruling in that case was not a favorable one, and it’s consistent with all of the cases that we’ve seen in the economic justice context, which show a predisposition to side with employers over the interests of employees.

AMY GOODMAN: I want to ask you about the undocumented teenager who was at the center of the lawsuit with the Trump administration over her right to have an abortion, and specifically the role of Judge Kavanaugh. The 17-year-old was detained in a refugee resettlement shelter in Texas and only had the abortion after a U.S. appeals court ruled in her favor. She was referred to in court documents as Jane Doe. In an interview with HBO’s Vice News, Jane Doe described deciding to have an abortion.

JANE DOE: [translated] When I first arrived at the shelter, I decided to do it because I don’t feel capable of being a mature woman or being strong or old enough to be able to take care of it. And I don’t feel sure about having a child.

AMY GOODMAN: So, that was Jane Doe. Last year, Democracy Now! spoke to one of her lawyers, Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project, about her case.

JENNIFER DALVEN: She went to the Texas court, and she got judicial permission to get an abortion. But since then, every step of the way, the Trump administration has stood to block her from exercising her decision. Instead of taking her to her appointments, what they’ve done is taken her to a religious crisis pregnancy center, where folks tried to stop her, convince her not to have an abortion, forced her to look a sonograms. And they would not let her go to her procedure. For a month now, they’ve been—they were trying to stop her from getting the procedure she wanted.

AMY GOODMAN: Well, in 2017, while on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Kavanaugh halted a district court order that would have allowed Jane Doe to get her abortion while in federal custody. When his decision was reversed, Judge Kavanaugh wrote a dissent that argued the decision was, quote, “ultimately 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.” He went on to write, quote, “the government has permissible interests in favoring fetal life … and refraining from facilitating abortion.” Kristen Clarke of Lawyers’ Committee for Civil Rights Under Law, I mean, this addresses a number of issues, but two major ones: the rights of immigrants in this country—ultimately, she got this abortion—and also this key issue of his stand on abortion. Will he overturn Roe v. Wade?

KRISTEN CLARKE: So, let’s put this in context. President Trump has said over and over again that his goal, that he intends to put judges on the court who will overturn Roe v. Wade. That was his solemn vow. And with Judge Kavanaugh, Brett Kavanaugh, we see a number of indicators which suggest that he is poised to carry out President Trump’s agenda.

This case involving the undocumented teen was a remarkable one. We see Brett Kavanaugh making every—taking every step possible to make it harder for this young girl to get access to an abortion while a clock is ticking away. At some point it would have been impossible for her to exercise her choice to have an abortion. The full D.C. Circuit came behind Brett Kavanaugh, intervened and provided relief for that minor, so she was ultimately able to come—to go and have the abortion, and observed a few things—observed that Brett Kavanaugh never stayed the hearing to allow the woman to explore other options, observed that Brett Kavanaugh kept asking kind of repetitive questions almost to allow the clock to continue running. I mean, it was clear that Brett Kavanaugh really was obstructing this minor’s effort and desire to get an abortion.

But let’s also look at his speech, his speeches. I mean, he is somebody who lifts up and celebrates the late Justice Rehnquist, who was in the dissent in Roe. And he also has another case where he essentially allowed an employer to use religion as a basis to deny employees access to contraceptive care. There are a number of cases in the courts right now that are making their way up to the Supreme Court that seek to chip away at _Roe_’s premise. And I firmly believe that all of the evidence in Brett Kavanaugh’s record make clear that he is somebody who will gut Roe if the question comes before the court. Again, he is not somebody who is prepared to uphold the court’s precedent in this area. And this could have dangerous implications for women, but most especially for women of color and low-income women in our country, who really are the ones who face the greatest barriers when it comes to accessing reproductive health services in our country.

AMY GOODMAN: And, of course, President Trump famously declared repeatedly during his campaign that he would only appoint anti-abortion justices to the Supreme Court. He was questioned about his views on abortion by moderator Chris Wallace.

CHRIS WALLACE: What I’m asking you, sir, is: Do you want to see the court overturn—you’ve just said you want to see the court protect the Second Amendment. Do you want to see the court overturn Roe v. Wade?

DONALD TRUMP: Well, if we put another two or perhaps three justices on, that’s really what’s going to be—that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.

AMY GOODMAN: So, that was President Trump—well, at the time, candidate Trump, being questioned by Fox’s Chris Wallace in a debate with Hillary Clinton.

JUAN GONZÁLEZ: Kristen Clarke, I wanted to ask you, going back to the discussion you started earlier about his racial policies, back in 1999 Kavanaugh wrote an op-ed piece in The Wall Street Journal having to do with the situation in Hawaii. This was during the Clinton administration, and there was an Office of Hawaiian Affairs and the Clinton administration that were trying to redress the theft of the land of the native Hawaiians when the Hawaiian kingdom was annexed. And Kavanaugh called the system of redress by the Office of Hawaiian Affairs a, quote, “naked racial-spoils system.” And he lamented that, quote, “any racial group with creative reasoning can qualify as an Indian tribe,” and basically seeking to erase the entire history of Hawaii’s relationship to the United States. I’m wondering what you think of this.

KRISTEN CLARKE: Yeah, this is a very important piece of Kavanaugh’s record that I hope gets proper attention. He is somebody who certainly didn’t sympathize with the struggles of indigenous populations in Hawaii who were seeking political autonomy, who were seeking political power because they are so marginalized. But more importantly, his views, expressed in an amicus brief that he filed in that case and in a subsequent Wall Street Journal article, make clear that he is somebody who subscribes to a colorblind outlook of the world, which is just not a realistic perspective for any judge to have in our country today, a country where we have civil rights laws on the book and where we have parts of our Constitution that recognize that discrimination is something that we’re struggling with and something that we need tools to fight.

I will note that he filed an amicus brief, in that case you describe, on behalf of an organization called the Center for Equal Opportunity. This is a think tank organization that has as part of its mission tearing down affirmative action. There are strong indicators in Kavanaugh’s record that he is somebody who doesn’t see race, he’s somebody who has chosen a colorblind outlook, and he is somebody who would likely not adhere to the Supreme Court’s precedent in cases like Fisher that recognize that schools, that colleges and universities in our country, have grounds and the right to use race as one among a number of factors when pulling together their student bodies, that he is not somebody who sees that racial diversity in our country is something that is valuable, important and worth fighting for. I hope that we’ll see the Senate really ask hard and probing questions that make clear Brett Kavanaugh’s dangerous views when it comes to race and the recognition of racial discrimination in our country today.

AMY GOODMAN: Kristen Clarke, we want to thank you for being with us. We’re going to cover these hearings all week. They begin today. Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which also leads the nonpartisan Election Protection coalition. We will link to this report you released on Brett Kavanaugh’s record on cases concerning civil rights, criminal justice, voting rights, fair housing, education, reproductive rights, environmental justice and access to justice. And also the group issued a statement opposing Judge Kavanaugh’s nomination to the Supreme Court.

This is Democracy Now! When we come back, a major decision around the Trans Mountain pipeline and oil politics on this continent. Stay with us.


AMY GOODMAN: “The Healers” by the late Randy Weston. He performed this song when he spoke with Democracy Now! in 2012. He died this weekend at his home in Brooklyn, New York. To see the hour interview with the great pianist, you can go to democracynow.org. I’m Amy Goodman, with Juan González.

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