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In the hearings to confirm Brett Kavanaugh as a new Supreme Court justice, Democrats are mostly focusing on hypothetical questions instead of questioning him on his record and releasing his documents. This is an inflection point in US democracy, says law Prof. Francis Boyle

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GREG WILPERT: It’s The Real News Network, and I’m Greg Wilpert coming to you from Baltimore.

President Trump’s Supreme Court nominee Brett Kavanaugh faced his third day of Senate confirmation hearings on Thursday. Already on Wednesday he spent 12 hours answering questions from the Senate Judiciary Committee on a wide range of issues, such as abortion, affirmative action, gun control, and presidential power. Kavanaugh would replace Justice Anthony Kennedy, who resigned from the Supreme Court at the end of July. Even though Justice Kennedy was a staunch conservative for 30 years, he prevented a conservative majority on a few key issues, such as on abortion, affirmative action, and LGBT rights. If Brett Kavanaugh is confirmed. He could thus very well move the court even further to the right.

Joining me now to discuss the Kavanaugh hearings is Professor Francis Boyle. He’s a professor of international law at the University of Illinois College of Law. Also he is the author of numerous books on international law. His latest is Poems Against the Empire. Thanks for joining us again, Professor Boyle.

FRANCIS BOYLE: Well, Greg, thank you very much for having me on, and my best to your listening audience, at, you know, what I think could be an inflection point for American democracy.

GREG WILPERT: All right. So let’s get started with the process itself. That is, the hearings. They began on Tuesday with a bit of an uproar both from the audience and from protesters who regularly interrupted the proceedings, and then also from Democratic senators right off the bat who objected that they did not receive over 100,000 pages of documents relating to Kavanaugh’s record; some of which they received only shortly before the hearings began. And then on Thursday Senator Cory Booker from New Jersey released emails that had been designated as confidential, and then the following exchange ensued.

CORY BOOKER: I’m saying I’m knowingly violating the rules. Senator Cornyn has called me out for it. Sir, I’m saying, I’m saying right now that I’m releasing, I’m releasing committee confidential documents.

DICK DURBIN: I just want to say to my colleagues, and particularly my colleague from New Jersey, I completely agree with you. I concur with what you were doing. And let’s jump into this pit together. I hope my other colleagues will join me. So if there is going to be some retribution against the senator from New Jersey, count me in.

GREG WILPERT: Senator Cornyn of Texas went on to warn Booker that he could be expelled.

JOHN CORNYN: Any senator, officer, or employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees, and offices of the Senate, shall be liable if a senator to suffer expulsion from the body, and if an officer or employee to dismissal from the service of the Senate and the punishment for contempt. So I would correct the senator’s statement there is no rule. There is clearly a rule that applies.

CORY BOOKER: Then apply the rule and bring the charges.

GREG WILPERT: So, Professor Boyle, what do you think of the Democrats’ performance in these hearings? Has it been commensurate to the seriousness of the appointment? And also I guess one ought to keep in mind that Senator Cory Booker is widely rumored to run for president in 2020.

GREG WILPERT: There are two questions there, so let’s start with the first one. And then remind me if I don’t get to the second one. As for the course of the proceedings, it seems to me, having followed them, that the Democrats, as usual, are engaging in a game of Kabuki theater here that is primarily designed to grandstand for political reasons to the television audience and to their base, and is using this to mobilize support for the November elections and also for fundraising purposes. I’ve gotten several solicitations already asking me for money with respect to Kavanaugh and the November elections.

The reason I say it’s Kabuki theater, however, is that in the New York Times yesterday it says, quote: “Republicans wryly noted that Democrats admitted they had confirmed conferred with Senator Chuck Schumer of New York, the Democratic leader over the weekend, about their hearing strategy.” So all this has been worked out and orchestrated in advance by the Republicans and the Democrats, and they’re basically going through the motions. I have concluded that they are not prepared to go to the mat, as I put it, to go for the jugular, to defeat Kavanaugh. So what we’re seeing here is a big game that they are playing, and have been playing for reasons other than defeating Kavanaugh.

And it’s critical that we defeat Kavanaugh. Because as I said, this will be an inflection point on the U.S. Supreme Court, the transition from Kennedy to Kavanaugh. And also I’m afraid for our, our democracy. It’s going to be do terrible things for women, for blacks, Latinos, Muslims, organized labor, poor people. The list of the environment, the list of these things go on where we’re going to have a solid five to four right-wing reactionary majority on the Supreme Court. And the way it has been portrayed by Kavanaugh and Republicans is that he’s clerked for Kennedy and isn’t that bad is belied by a study in the Journal of the American Bar Association that he will be just a tad, a slight, maybe not even a percentage point to the left of Clarence Thomas, who is the most reactionary justice on the United States Supreme court. You’d have to go back to the Herbert Hoover Supreme Court to find a justice that reactionary. And indeed, Clarence Thomas historically reminds me of Justice Taney, who wrote the Dred Scott decision, ruling that African Americans were not human beings, and instead were property of their masters. That’s how reactionary Thomas is, and Kavanaugh is going to be just as reactionary. And with Kavanaugh, you’re going to have a solid core of five hardcore movement Federalist Society people on there. So this could be a disaster.

GREG WILPERT: Professor Boyle, let’s dig into some of those issues in a moment. But I also want to ask you about the papers that hadn’t been released. That is also part of this process, and now they’ve received them, only some of them, and then this whole issue about whether they’re classified and all that. What’s your reaction to all of that?

FRANCIS BOYLE: Right. Well, there’s a quick answer. If the Democrats were serious, they could take all the documents they have now, which are substantial, and release them during the course of the hearings, despite any claims of national security or any claims of executive privilege or confidentiality, or anything like that, pursuant to what is known as The Speech or Debate Clause of the United States Constitution, that says that Senators and Representatives, quote, “and for any speech or debate in either house they shall not be questioned in any other place.”

So during the course of the proceedings itself, they can release anything they want to, no matter what the Senate rules are, no matter what criminal statutes say, without any accountability, whether civil or criminal. And they have not done this. Now, the only penalty they could face, which Senator Booker pointed out, is expulsion from the Senate. But there, Section 5 Clause 2 of the Constitution requires a two-thirds vote of the Senate. And the Senate right now is 51-49 Republicans now that that Senator Cornyn has joined in.

So those two-thirds vote are not there. Senator Booker knows full well he cannot be expelled from the Senate. There’s no way he’s going to get- no one’s going to give a two-thirds vote of the Senate to expel him. And indeed, if all the Democratic senators joined in with Booker and proceeded to release everything they had, of course no one’s going to be expelling anyone. And they would be fully protected under the Speech or Debate Clause for what they’re doing. And the question is, why are they not doing it? As Senator Booker pointed out, well, I have materials here that Kavanaugh was involved in racist profiling. Here it is. The senator from Hawaii, Hirona, said, well, Kavanaugh has discriminated against native Hawaiians, the kanaka maoli. I’ve worked with them for years. This is pretty appalling. But interestingly enough, Senator Booker said apparently they have documents of involvement in torture. And that would have been part of the 45,000 document dump that was given to them on Monday. At least. I can’t say anything about the other documents.

GREG WILPERT: That’s one of the really, sorry, that’s really an important question. I mean, why aren’t they releasing that? That’s something we probably need to explore at some point. But let’s dig into some of the-.

FRANCIS BOYLE: What, what, no, no. This is a very important question we have to deal with. You see, right now they are withholding documents when Kavanaugh was secretary to President Bush Jr. Well, OK. But Kavanaugh worked for Attorney General Alberto Gonzales, who was behind me at Harvard Law School. And Gonzales was White House counsel. And during that time Kavanaugh was there with Gonzales, We know for a fact that Gonzalez and that office was up to their eyeballs in torture, war crimes, crimes against humanity, extraordinary renditions, the enforced disappearance of human beings, and every type of felony you could possibly imagine, including violating the Geneva Conventions and the U.S. War Crimes Act of 1996.

So the question is, what did Kavanaugh do for Gonzalez on these issues? We in the American public do not know, but I suspect there are more than several smoking guns in that 45,000 document dump that the Democrats got on Monday. And Senator Booker alluded to that. He said, we have documents on torture. So why have they not released these documents immediately, either yesterday or today, and any analysis or anything else of Kavanagh’s involvement in these matters when he worked for Alberto Gonzales? This could derail his entire nomination, because to the best of my knowledge for the first time ever we would be putting a war criminal on the United States Supreme Court.

And this is a serious matter, because what happened with these Bush junior lawyers … Jay Bybee, who worked for Bush Jr. and was one of his torture lawyers, Bush Jr. as a reward put him on the Ninth Circuit Court of Appeals, where he sits today. But his nomination was rammed through before all those documents were out and people knew he had committed war crimes; authorized and approved war crimes. Likewise, under Obama you had two Democratic lawyers, David Barron, behind me at Harvard Law School, and Marty Lederman, now teaching at Georgetown Law School, who authored the infamous Obama … saying Obama could murder United States citizens, despite federal laws and a statute that expressly criminalized murdering U.S. citizens abroad. And U.S. citizens were murdered, including Mr. Awlaki and his 16-year-old son. As a reward for that, Obama put David Barron on the U.S. Court of Appeals for the First Circuit, where I’m licensed to practice law.

So right now we have two war criminals on the First Circuit and the Ninth Circuit, and it appears the Republicans want to ram Kavanaugh through as fast as possible like happened with Bybee before any smoking guns get released publicly. And my concern is it appears the Senate Democrats are sitting on these documents. Senator Booker indicated that they have such documents. These documents need to be publicized immediately. They need to be released in the hearings. And at that point I think that would derail Kavanaugh. But as of this afternoon they haven’t done it.

GREG WILPERT: Yeah. Of course, this is one of the issues that it seems that the hearings really didn’t get into, except in the form of perhaps talking about his views of the executive presidency, or the imperial- what’s also known as the imperial presidency, and the power of the president, whether he can pardon himself, and also to what extent the power of the president really goes. And unfortunately he doesn’t seem to have really answered those questions. Let me just show a short clip of one of those exchanges where they talk about the power of the presidency.

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

BRETT KAVANAUGH: The question of self-pardons is something I’ve never analyzed. It’s a question that I have 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.

PATRICK LEAHY: And the other half of that is the obvious one. Does the president have the ability to pardon somebody in exchange for a promise from that person they wouldn’t testify against him?

BRETT KAVANAUGH: Sir, I’m not going to answer hypothetical questions of that sort.

PATRICK LEAHY: I hope for the sake of the country that remains a hypothetical question.

GREG WILPERT: So as we can see in this exchange he doesn’t really answer any of these questions. But what do you think does his response and his record actually say about how he regards presidential power? And we don’t have very much time, so just if you could keep it relatively short.

FRANCIS BOYLE: Well, Greg, this gets back to the Kabuki theater. That was Senator Leahy. He knew exactly what he was doing. He was wasting time, asking Kavanaugh questions, hypothetical questions, that he knew full well Kavanaugh was not going to answer. And indeed, they spent- the reports I read, Democrats wasted all day yesterday asking hypothetical questions that they knew Kavanaugh was not going to answer. And so it’s a game. You have to understand that. The Democrats are going right along with the script here, as they’ve coordinated. Chuck Schumer admitted. And you know, Leahy knows what he’s doing. He’s asking questions that he knows Kavanaugh cannot and will not answer instead of nailing him on positions he’s already taken as a judge, which they could have done. They’re sitting there asking him hypothetical questions, and everyone knows a sitting judge and a prospective nominee for the Supreme Court is not going to ask hypothetical questions.

So I get back to my main point. This is Kabuki theater by the Democrats. Leahy knows exactly what he’s doing. He’s a sharp guy. He’s been there and all the other Democrats are doing pretty much the same thing. And if they were serious, the Democrats, they would release all of those documents during the course of the hearings. Everything they have with their staff’s analysis of it that is prejudicial and incriminating of Kavanaugh. And I think if we got those documents in the hearings, that very well might derail Kavanaugh’s nomination. But right now the Democrats are not doing this.

GREG WILPERT: I guess we really need to dig further in terms of why the Democrats are playing this Kabuki theater. And hopefully we’ll have you back on again to talk about that issue as well. Unfortunately we ran out of time, so we’re going to have to wrap it up. I was speaking to Professor Francis Boyle, Professor of International Law at the University of Illinois College of Law. Thanks for having joined us today again, Professor Boyle.

FRANCIS BOYLE: Well again, Greg, thank you for having me on again.

GREG WILPERT: Our pleasure. And thank you for joining The Real News Network.

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Gregory Wilpert is Managing Editor at TRNN. He is a German-American sociologist who earned a Ph.D. in sociology from Brandeis University in 1994. Between 2000 and 2008 he lived in Venezuela, where he first taught sociology at the Central University of Venezuela and then worked as a freelance journalist, writing on Venezuelan politics for a wide range of publications and also founded, an English-langugage website about Venezuela. In 2007 he published the book, Changing Venezuela by Taking Power: The History and Policies of the Chavez Government (Verso Books). In 2014 he moved to Quito, Ecuador, to help launch teleSUR English. In early 2016 he began working for The Real News Network as host, researcher, and producer. Since September 2018 he has been working as Managing Editor at The Real News. Gregory's wife worked as a Venezuelan diplomat since 2008 and from January 2015 until October 2018 she was Venezuela's Ambassador to Ecuador.