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Former Colleague On Kavanaugh Day 2


So what did we learn from some of those questions and answers? Let's dig a little deeper with Kimberly Wehle. She's a former assistant U.S. attorney, served on the Whitewater investigation with Judge Kavanaugh. Welcome to the program.

KIMBERLY WEHLE: Good morning.

INSKEEP: OK. So as Scott mentioned, he was asked about abortion rights. And let's listen to a part of one of his responses.


BRETT KAVANAUGH: I understand the importance of the issue. I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision. I don't live in a bubble. I live in the real world. I understand the importance of the issue.

INSKEEP: He didn't say anything there, did he?

WEHLE: No, he didn't. I think he was trying to convey that he is a person and has some compassion. He did talk about the standard that has been established - not only that there is a constitutional right to an abortion, but the court put a gloss on that and said undue burdens are OK. And that's really what the Garza case - the case involving an abortion for an undocumented immigrant teen in which he dissented from the majority's decision to allow that abortion to go forward...

INSKEEP: Oh, yeah.

WEHLE: That was about whether an undue burden was sufficient under the Constitution to justify a delay in the abortion. And he departed from his colleagues on that point.

INSKEEP: So Susan Collins, one of the senators who met with him before the public hearing, came out of that private meeting saying that Judge Kavanaugh considers Roe v. Wade settled law, which sounds reassuring to those who support Roe v. Wade. Did he say exactly that same thing when under oath and in public?

WEHLE: Well, it's one thing to apply settled law as a D.C. circuit judge. It's another thing to do it on the Supreme Court. And this particular court, even with a conservative bend, has not been shy about upending and reversing what we know as settled law. Although, Roe itself, as he mentioned, has been upheld many, many times.

I think there's a danger, though, that Roe will be chipped away at with identifying additional, sufficient undue burdens that ultimately make it close to impossible for women to effectively get abortions, even if the right itself is not disturbed.

INSKEEP: Let's move on to another issue now. Can President Trump pardon himself? That is a question put by Democratic Senator Patrick Leahy. Let's listen.


PATRICK LEAHY: Trump claims he has an absolute right to pardon himself. Does he?

KAVANAUGH: The question of self-pardons is something I've never analyzed. It's a question that I've not written about. It's a question, therefore, that's a hypothetical question that I can't begin to answer in this context as a sitting judge and as a nominee to the Supreme Court.

INSKEEP: Is it fair to call it a hypothetical question, given that the president of the United States has said in public, and in writing, I believe, that he does have that right?

WEHLE: Well, I mean, we're living in extraordinary times. And as much as all of these issues are important, I think for purposes of the viability of our democracy going forward, whether we're going to have a country with individual freedoms, the notion of an imperial presidency is front and center on the table right now. I think what he said was that it's established that pardon power is broad, and that was established in a case called ex parte Garland.

But what he did say was pardoning in exchange for a bribe - that itself might give rise to criminal liability on both parts. He said that's an unanswered question, so I'm not so sure he would go forward and say any form of pardon is going to allow for unfettered power on the part of the president.

INSKEEP: Now, in fairness, we should point out when he's refusing to answer some of these questions, they are about potential cases before the court. You don't want a justice to prejudge a case before the facts. And he cited Ruth Bader Ginsburg, who also avoided answering some questions in her confirmation hearing. But our own Nina Totenberg has reported that when you go back to the Ginsburg hearing, she also answered a lot of questions. Is Kavanaugh being any more evasive than other nominees have been in the past?

WEHLE: You know, there's a couple issues here. One is that in watching Kavanaugh, and having worked with him, he's a very careful, intelligent lawyer. I think he's being lawyerly. And I'm also a law professor, and we teach our students you don't - you can't make a decision until you have the particular facts and the law in front of you. So I think that that's consistent with lawyering itself. But, again, this is - we're in extraordinary times. This is the swing seat. And this is a permanent, lifetime position. We're not talking about a cabinet appointee.

And so I think the notion that perhaps some people in the Senate had more access to information, and the president might have had more access to candidate information behind closed doors from Judge Kavanaugh than the Democrats and the American public - that's a problem. And I think it's a structural problem that compromises people's buy-in to the ultimate confirmation, which is a problem for Kavanaugh and the court.

INSKEEP: Democrat Chris Coons brought up a remark that Kavanaugh made in 1998 saying that the president can fire prosecutors at will. Let's listen.


CHRIS COONS: I'm just asking whether you - by your record, something that you chose to write in 1998 - you expressed a view at the time that a president can fire will a prosecutor criminally investigating him. Is that still your view?

KAVANAUGH: Well, that would...

COONS: I'm not asking for a recitation of precedent. We will get into some precedent later.


COONS: I'm just trying to make sure I understand if you stand by that publicly expressed view back in 1998.

KAVANAUGH: I think all I can say, Senator, is that was my view in 1998.

INSKEEP: What was that about?

WEHLE: You know, I think what he was talking about was the independent counsel law that was in place back then that did limit the president's ability to fire a prosecutor. That was established by Congress. The Court upheld it. Justice Scalia dissented.

And Judge Kavanaugh is very, very careful to adhere to the separation of powers. He believes in judicial independence, as well as executive independence and congressional independence. So I think that went around - that was about congressional power to fire. As a matter of Article II, the president can fire people within his chain of command. That's just the way it is.

INSKEEP: The president can fire the attorney general right now. The president can fire Robert Mueller, or have someone fire Robert Mueller. That's the way the law is.

WEHLE: Sure. And the only thing between him and Mueller right now is an internal DOJ regulation. We're not talking about a statute, which was what, I think, Judge Kavanaugh was talking about in 1998.

INSKEEP: One other thing to ask about. Democrat Kamala Harris of California asked if the judge has discussed Robert Mueller or his investigation with anyone at a particular law firm, a law firm founded by Marc Kasowitz, the president's lawyer. Let's listen to that.


KAMALA HARRIS: Are you certain you've not had a conversation...

KAVANAUGH: I said that.

HARRIS: ...With anyone at that law firm?

KAVANAUGH: Kasowitz, Benson...

HARRIS: Kasowitz, Benson and Torres...


HARRIS: ...Which is the law firm founded by Marc Kasowitz...


HARRIS: ...Who is President Trump's personal lawyer. Are you - have you had any conversation about Robert Mueller or his investigation with anyone at that firm? Yes or no?

KAVANAUGH: Well, is there a person you're talking about?

HARRIS: I'm asking you a very direct question. Yes or no?

KAVANAUGH: I need to know the - I'm not sure I know everyone who works at that law firm.

INSKEEP: I raise this, first, because it was one of the rare occasions where Kavanaugh seemed really knocked off his feet. And, second, because Harris seemed to imply that she knew something, but she didn't put her cards on the table.

WEHLE: Yeah. I mean, he did seem to stumble there. And I think this, again, leads to a structural question. There is a statute that requires federal judges to disqualify themselves from cases if there's even the appearance of impartiality. I'm not suggesting Judge Kavanaugh would not impartially decide questions relating to the president, but we are in an era where a lot of people are traumatized by this process, and it would be good for the country to draw some boundaries there.

INSKEEP: Kimberly Wehle, thanks for coming by. Really appreciate it.

WEHLE: My pleasure.

INSKEEP: She's a professor of law at the University of Baltimore.

(SOUNDBITE OF GURU GRIFF'S "TWO SIDES") Transcript provided by NPR, Copyright NPR.

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