Updated at 11:55 a.m. ET
Supreme Court nominee Judge Brett Kavanaugh is back at the witness table Thursday. The session began with Democrats on the Senate Judiciary Committee in open revolt over the handling of documents from Kavanaugh’s tenure in the George W. Bush White House.
Some documents have been withheld altogether. Others have been provided to the committee on “confidential” terms, meaning senators can see them but they can’t be made public.
Democrats object that the confidential label has been applied to a wide swath of records, many of which contain no personal or sensitive information. They also complain that classification decisions were made by former President Bush’s attorney, William Burck, a former deputy of Kavanaugh’s.
Sen. Cory Booker, D-N.J., released some of the confidential documents in what he called an act of civil disobedience, even though he acknowledged such action carries a possible penalty of expulsion from the Senate.
The documents include a batch of emails concerning racial profiling, and affirmative action and other race-conscious government programs.
In a 2002 email Kavanaugh writes that security procedures adopted in the wake of the September 11 attacks should ultimately be race-neutral, though he acknowledged developing such procedures could take time. Others in the White House suggested racial profiling might be legally justified if it enhanced security.
In a 2001 email Kavanaugh addresses a legal challenge to an affirmative action program within the Department of Transportation.
“The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what in reality is a naked racial set-aside,” he wrote.
Sens. Mazie Hirono, D-Hawaii, and Patrick Leahy, D-Vt., also released “confidential” documents, drawing a stern rebuke from Sen. John Cornyn, R-Texas, who called them “irresponsible and outrageous.”
“This is no different from the senator deciding to release classified information,” Cornyn said. “No senator deserves to sit on this committee, or serve in the Senate in my view, if they decide to be a law unto themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification.”
Separately, the New York Times reported on leaked emails from the “confidential” file. One is an email drafted by Kavanaugh in 2003, in which he questioned whether the Supreme Court’s 1973 Roe v. Wade decision legalizing abortion should be described as “settled law of the land.”
Pressed on that email by Sen. Dianne Feinstein, D-Calif., Thursday Kavanaugh explained he was simply summarizing views of legal scholars, not offering his own view.
Wednesday, while fielding more than 10 hours of questions, Kavanaugh said he understands the weight that many people attach to Roe. But he declined to say whether that case was properly decided.
Kavanaugh also sidestepped questions from Booker Wednesday night about the circumstances in which government can and cannot use race-conscious measures to address past discrimination.
He conceded that hopes he expressed nearly two decades ago for a color-blind society have not been fulfilled.
“We see on an all too common basis that racism still exists in the United States of America,” Kavanaugh said. “Our long march to racial equality is not over.”
Kavanaugh also said Wednesday he would not have any trouble ruling against the president who nominated him to the high court, praising justices who had done so in the past. But he declined to weigh in on President Trump’s recent tweets, criticizing Attorney General Jeff Sessions for the prosecution of two GOP lawmakers.
“I don’t think we want judges commenting on the latest political controversy,” Kavanaugh said. “That would ultimately lead the people to doubt whether we’re independent, whether we’re politicians in robes.”
Kavanaugh is fielding a second, shorter round of questions from members of the committee Thursday. Barring surprises, he appears likely to win confirmation in time to take his place on the bench when the Supreme Court begins its fall term next month.