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Kavanaugh Criticized ‘Naked Racial Set-Aside': Hearing Update

Sept. 6, 2018, 5:34 PM

Supreme Court nominee Brett Kavanaugh is being questioned for a second day Sept. 6 by members of the Senate Judiciary Committee after a marathon session a day earlier. Here are the latest developments on President Donald Trump’s second high court choice, updated throughout the day:

Kavanaugh Criticized ‘Naked Racial Set-Aside’ (11:55 a.m.)

As a White House staffer, Kavanaugh criticized an affirmative action program used in federal contracting as a “naked racial set-aside,” a newly released 2001 email shows.

The comment involved a program designed to direct more federal highway dollars to minority-owned contractors. At the time, the Bush administration was engaged in an internal debate over what position to take in a court fight.

The administration eventually took a middle ground, urging the Supreme Court to throw out a challenge to the program without reaching the substantive issues. The court then dismissed the case unanimously.

Kavanaugh’s characterization drew criticism Sept. 5 from Senator Cory Booker (D-N.J.), though at the time the email wasn’t publicly available. The committee’s Republican chairman, Chuck Grassley of Iowa, released the email Sept. 6 along with other documents after Booker threatened to do so on his own.

The documents also show Kavanaugh discussing using racial profiling at airports in the aftermath of the Sept. 11, 2001, terrorist attacks. In one email, Kavanaugh describes himself as among those “who favor effective security measures that are race-neutral.”

That email left open the possibility that racial profiling could be used as an interim measure until “a truly effective and comprehensive race-neutral system is developed and implemented.”

Kavanaugh Says Roe Comments Sought ‘Accuracy’ (11:02 a.m.)

Kavanaugh said he suggested changes in a draft op-ed discussing the Roe v. Wade abortion rights ruling for the sake of “accuracy.” In a 2003 email written while working in the George W. Bush White House, he questioned a passage that said legal scholars “widely understood” Roe to be settled law.

“I think it was overstating something about legal scholars, and I’m always concerned about accuracy,” Kavanaugh testified. Under questioning from Democratic Senator Dianne Feinstein of California, he again refused to say whether he believes Roe was correctly decided.

Email Shows Kavanaugh Discussed Roe, Abortion (10:40 a.m.)

An email from Kavanaugh’s time in a Republican White House shows he questioned the accuracy of a claim that legal scholars widely accepted the Roe v. Wade abortion-rights ruling as settled law of the land.

“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the court can always overrule its precedent, and three current justices on the court would do so,” Kavanaugh wrote in the 2003 email, which suggested changes to a draft opinion piece.

The email is within almost 200,000 pages of documents Republicans have designated as “committee confidential,” meaning they are available to senators but not the public. The New York Times first reported the existence of the email.

Protesters interrupted the hearing for a third straight day. More than 140 people were arrested by Capitol Police Sept. 4 and 5.

Democrats Say They’ll Release Kavanaugh Papers (10:15 a.m.)

Democrats said they plan to release some now-confidential documents from Kavanaugh’s time in President George W. Bush’s White House, as the third day of the hearing began with a new round of partisan squabbling.

Senator Cory Booker, a Democrat from New Jersey, said he plans to expose that “emails being withheld from the public have nothing to do with national security.” Booker, who Sept. 5 pressed Kavanaugh on non-public emails discussing affirmative action and racial profiling, said he would be “knowingly violating the rules.“

Almost 200,000 pages of White House documents are currently designated as “committee confidential,” available to senators but not to the public. Democrats say that designation has previously been used only for much smaller batches of documents.

Republican Senator John Cornyn of Texas called Booker’s plan “irresponsible and outrageous.“

“No senator deserves to sit on this committee or be in the Senate, in my view, if they believe they can write the rules for themselves,” Cornyn said.

Committee Chairman Chuck Grassley of Iowa said he’s willing to release some of the documents on a case-by-case basis. He said he did so on a request by Democratic Senator Amy Klobuchar of Minnesota involving emails that discussed campaign finance law.

Democrat Sheldon Whitehouse of Rhode Island said no Senate rule barred release of the documents.

Second-ranking Senate Democrat Dick Durbin of Illinois said to Booker, “I concur with what you are doing, and let’s jump into this pit together. If there is going to be some retribution against the senator from New Jersey, count me in.”

©2018 Bloomberg L.P. All rights reserved. Used with permission

To contact the reporters on this story: Greg Stohr in Washington at; Laura Litvan in Washington at

To contact the editors responsible for this story: Joe Sobczyk at Laurie Asséo