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November 15, 2018

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Kavanaugh hearing crucial for undecided senators, Cortez Masto says


Jacquelyn Martin / AP

Brett Kavanaugh, with his wife Ashley Estes Kavanaugh, answers questions during a Fox News interview, Monday, Sept. 24, 2018, in Washington, about allegations of sexual misconduct against the Supreme Court nominee.

Undecided senators and potentially those who support Supreme Court pick Brett Kavanaugh should listen to the women who are accusing him of sexual misconduct, Nevada’s Democratic Sen. Catherine Cortez Masto said on Tuesday.

The accusations from Christine Blasey Ford and Deborah Ramirez have become a focal point for many Kavanaugh opponents, in addition to what one former law clerk said was the judge’s belief in “conservative” legal principles. The Senate’s judiciary committee is set to hear from President Donald Trump’s Supreme Court pick and Ford on Thursday.

Cortez Masto announced her opposition to Kavanaugh’s confirmation on Sept. 19, citing his stance on women’s reproductive rights, among other issues. Kavanaugh had helped delay an abortion for a Central American immigrant in federal custody.

Cortez Masto said the FBI should do a follow-up investigation into the accusations against Kavanaugh. She said the witnesses should be treated with respect while the Senate gathers information that will help decide whether Kavanaugh should sit on the court for a lifetime.

“These are serious allegations that we need to treat in that manner,” Cortez Masto said. “This is also a teaching moment in how we handle this matter as adults, because we are in a moment right now where we are trying to change the culture of violence against women — and some men, don’t get me wrong, but the majority of this violence is against women. This is a teaching moment and I think that is all wrapped up into how we handle this at the hearing.”

Cortez Masto had been waiting to issue a stance on the nominee until after meeting him, but her office and his could not arrange a time, she said.

Republican Sen. Dean Heller, the only member of the GOP seeking reelection in a state Hillary Clinton won in 2016, did not say whether the hearing Thursday could prompt him to vote against Kavanaugh. He has expressed support for the nominee in the past.

“The Judiciary Committee has already been in contact with Ms. Ramirez’s attorneys and they have asked if she will provide evidence to committee investigators,” Heller said in a statement Monday. “As I’ve said before, all senators, regardless of party, should work with (Senate Judiciary) Chairman (Chuck) Grassley in good faith.”

Trump continues to support his nominee and has expressed skepticism about the accusations. Kavanaugh has said the accusations are false.

“This is a smear, plain and simple,” Kavanaugh said in a Sept. 23 statement released by the White House. “I look forward to testifying on Thursday about the truth, and defending my good name — and the reputation for character and integrity I have spent a lifetime building — against these last-minute allegations.”

University of Louisville assistant law professor Justin Walker clerked for Kavanaugh on the D.C. circuit from 2010 to 2011 after law school. The two met when Walker was a second-year law student at Harvard in January 2008, taking the judge’s winter session class on the separation of powers.

“One of his most important points was that the separation of powers protects liberty,” Walker said. “What he meant by that is that although there are parts of the Constitution that expressly protect liberty, the framers expected that the most important protection would be to keep too much power from getting in the hands of any one person or even any one branch of government.”

Walker said Kavanaugh “is faithful to and cares a lot about” textualism and originalism, two legal principles that are generally considered “conservative.” Late Supreme Court Justice Antonin Scalia was a textualist, choosing to base decisions on legal text rather than intent, according to Stanford University’s Hoover Institution. Originalism is the principle that laws should be understood in the context of the time they were written.

“When people say conservative judge, some people think you mean conservative in terms of politics and policy,” Walker said. “And I think that he is an independent judge who doesn’t have any passion or prejudice for one particular policy outcome or one particular party.”

During Walker’s time clerking for Kavanaugh, he said, the judge wrote a 52-page dissent in a Second Amendment case that stemmed from the Supreme Court’s decision in District of Columbia v. Heller.

The Heller case challenged a Washington, D.C., handgun possession ban and storage law. Kavanaugh wrote the dissent in a case stemming from Heller that challenged D.C.’s registration requirement, assault weapons ban and magazines that can hold more than 10 rounds of ammunition.

“Probably the most thorough pro-Second Amendment analysis by a lower-court judge in history,” Walker said.

Kavanaugh would go through dozens of opinion drafts for many cases, Walker said, with as many as 100 or more drafts for complex cases.

Walker said he, a Duke basketball fan, and Kavanaugh, a Maryland basketball fan, used to spend office hours talking about sports and news. Now, Walker said, Kavanaugh is one of the first people he calls whenever he has a difficult career decision to make.

“No matter how busy he is or how prestigious he became, he always made time to offer advice,” Walker said. “He would always say, ‘How can I help.’”