Tag Archives: U.S. Supreme Court

U.S. appeals court hears challenge to FCC net neutrality repeal

A federal appeals court was hearing arguments on Friday over whether the Trump administration acted legally when it repealed landmark net neutrality rules governing internet providers in December 2017.

By David Shepardson

WASHINGTON (Reuters) – A federal appeals court was hearing arguments on Friday over whether the Trump administration acted legally when it repealed landmark net neutrality rules governing internet providers in December 2017.

The panel, which set aside 2-1/2 hours to hear the case, is made up of Judges Robert Wilkins and Patricia Millett, two appointees of Democratic former President Barack Obama, and Stephen Williams, an appointee of Republican Ronald Reagan.

It was the first hearing in court on the Federal Communication Commission’s controversial decision to repeal the 2015 Obama administration’s net neutrality rules.

The arguments focus on how internet providers should be classified under law – either as information service providers as the Trump administration decided or as a public utility, which subjects companies to more rigorous regulations – and whether the FCC adhered to procedural rules.

The Republican-led FCC voted 3-2 along party lines to reverse the net neutrality rules, which barred internet service providers from blocking or throttling traffic, or offering paid fast lanes, also known as paid prioritization. The FCC said providers must disclose any changes in users internet access as it repealed what it termed “unnecessary, heavy-handed regulations.”

Kevin Russell, a lawyer for the challengers, told the U.S. Court of Appeals for the District of Columbia that hypothetically an internet provider could now block the Daily Caller website or graphic animal abuse videos as long as they disclosed it.

“We never get a straight answer from the commission whether it thinks blocking and throttling must always be prohibited” or only if it applies to punishing a competitor, Russell said, arguing that the FCC failed to engage in a reasoned analysis and did not properly assess consumer complaints.

Judge Williams suggested users could simply choose another provider if some content was blocked.

The FCC repeal was a win for providers like Comcast Corp, AT&T Inc and Verizon Communications Inc, but was opposed by internet companies like Facebook Inc, Amazon.com Inc and Alphabet Inc.

A group of 22 state attorneys general and the District of Columbia asked the appeals court to reinstate the Obama-era internet rules and to block the FCC’s effort to pre-empt states from imposing their own rules guaranteeing an open internet.

Several internet companies are also part of the legal challenge, including Mozilla Corp, Vimeo Inc and Etsy Inc (ETSY.O), as well as numerous media and technology advocacy groups and major cities, including New York and San Francisco.

Major providers have not made any changes in how Americans access the internet since the repeal.

In October, California agreed not to enforce its own state net neutrality law until the appeals court’s decision on the 2017 repeal, and any potential review by the U.S. Supreme Court.

A decision is expected by this summer.

(Reporting by David Shepardson; Editing by Frances Kerry)

U.S. Justice Ginsburg, 85, has malignant nodules removed from lung

FILE PHOTO: U.S. Supreme Court Associate Justice Ruth Bader Ginsburg is seen during a group portrait session for the new full court at the Supreme Court in Washington, U.S., November 30, 2018. REUTERS/Jim Young/File Photo

By Lawrence Hurley

WASHINGTON (Reuters) – U.S. Supreme Court Justice Ruth Bader Ginsburg had two cancerous nodules removed from her left lung on Friday in a surgical procedure in New York, the latest health issue experienced by the 85-year-old liberal jurist, a court spokeswoman said.

Court spokeswoman Kathy Arberg said Ginsburg, one of the court’s nine justices, underwent a procedure known as a pulmonary lobectomy on Friday at Memorial Sloan Kettering Cancer Center in New York. Arberg said that according to the thoracic surgeon, Dr. Valerie Rusch, “both nodules removed during surgery were found to be malignant.”

After the surgery, there was “no evidence of any remaining disease,” Arberg added.

“Currently, no further treatment is planned. Justice Ginsburg is resting comfortably and is expected to remain in the hospital for a few days,” Arberg said.

Ginsburg broke three ribs in a fall last month. The nodules were found as part of the tests the justice underwent after the earlier fall, Arberg said.

Ginsburg, appointed by Democratic President Bill Clinton in 1993, is the senior liberal member of the court, which has a 5-4 conservative majority.

The Supreme Court’s conservative majority was restored in October when the Senate confirmed Republican President Donald Trump’s nominee, Justice Brett Kavanaugh, after a contentious nomination process in which Kavanaugh denied a sexual assault allegation dating to the 1980s when he was a high school student.

As the oldest justice, Ginsburg is closely watched for any signs of deteriorating health.

If she were unable to continue serving, Trump could replace her with a conservative, further shifting the court to the right. A potentially dominant 6-3 conservative majority would have major consequences for issues including abortion, the death penalty, voting rights, gay rights and religious liberty.

Ginsburg has recovered from previous medical issues. She was treated in 1999 for colon cancer and again in 2009 for pancreatic cancer, but did not miss any argument sessions either time. In 2014, doctors placed a stent in her right coronary artery to improve blood flow after she reported discomfort following routine exercise. She was released from a hospital the next day.

The court is not in session until early January.

Ginsburg is considered a hero by many liberals. She has helped buttress equality rights during her time on the high court, including in sex discrimination cases.

In recent years she has become something of a cult figure, particularly on the left, known by the nickname “Notorious RBG,” after the late rapper Notorious BIG.

A documentary film, “RBG,” was released earlier this year. A feature film about her life, “On the Basis of Sex,” is being released in theaters next week.

Ginsburg was the second woman to become a member of the Supreme Court, following Justice Sandra Day O’Connor, who retired in 2006. O’Connor, 88, said in October she is suffering from dementia.

Ginsburg called Trump an egotistical “faker” when he was running for president in 2016. Trump responded by saying her “mind is shot” and she should quit the court. Ginsburg later expressed regret for her comments, saying “judges should avoid commenting on a candidate for public office.”

(Reporting by Lawrence Hurley; Editing by Will Dunham)

Trump administration asks top court to restore asylum order

FILE PHOTO: U.S. President Donald Trump delivers remarks on immigration and border security in the Roosevelt Room of the White House in Washington, U.S., November 1, 2018. REUTERS/Kevin Lamarque/File Photo

By Andrew Chung

(Reuters) – President Donald Trump’s administration asked the U.S. Supreme Court on Tuesday to let his order barring asylum for immigrants who enter the United States illegally take effect even as litigation over the matter proceeds.

The U.S. Justice Department asked the court to lift a temporary restraining order against the asylum rules issued by San Francisco-based U.S. District Judge Jon Tigar. Trump has taken a hard line toward legal and illegal immigration since taking office last year.

Citing what he called an overwhelmed immigration system, Trump issued a proclamation on Nov. 9 that authorities process asylum claims only for migrants crossing the southern U.S. border at an official port of entry. Tigar blocked the rules on Nov. 19, drawing Trump’s ire.

The San Francisco-based 9th U.S. Circuit Court of Appeals refused on Friday to lift Tigar’s injunction pending an appeal by the administration, saying the government “has not established that it is likely to prevail.”

The Justice Department said in its request to the Supreme Court that the injunction frustrated the government’s effort to re-establish control over the southern border and reduce illegal crossings.

Trump issued his proclamation alongside a new administration rule that effectively prohibited asylum for migrants crossing from Mexico outside a port of entry. The policy came as the government sought ways to block thousands of Central Americans traveling in caravans to escape violence and poverty at home from entering the United States.

Immigrant rights groups immediately sued, arguing the policy violated federal immigration and administrative law.

In his ruling, Tigar said Congress clearly mandated that immigrants were eligible for asylum regardless of where they enter the country.

The ruling prompted Trump to blast the 9th Circuit as a “disgrace” and dismiss Tigar as an “Obama judge.” Tigar was appointed to the bench by former President Barack Obama, a Democrat.

That criticism led to an extraordinary rebuke by U.S. Chief Justice John Roberts, who issued a public response to Trump.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” said Roberts, a conservative who was appointed by Republican former President George W. Bush.

(Reporting by Andrew Chung in New York; Editing by Will Dunham and Peter Cooney)

U.S. top court rebuffs state bids to cut Planned Parenthood funds

FILE PHOTO: Healthcare activists with Planned Parenthood and the Center for American Progress pass by the Supreme Court as they protest in opposition to the Senate Republican healthcare bill on Capitol Hill in Washington, U.S., June 28, 2017. REUTERS/Joshua Roberts

By Andrew Chung

WASHINGTON (Reuters) – The U.S. Supreme Court on Monday rejected appeals by Louisiana and Kansas seeking to end public funding by those states to Planned Parenthood, a national women’s healthcare, and abortion provider, through the Medicaid program.

The justices left intact lower court rulings that prevented the two states from stripping government healthcare funding from local Planned Parenthood affiliates.

Three conservative justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, dissented from the decision by the nine-member court, saying it should have heard the appeals by the states.

The case is one of a number of disputes working their way up to the Supreme Court over state-imposed restrictions on abortion. The two states did not challenge the constitutionality of abortion itself.

Planned Parenthood’s affiliates in Louisiana do not perform abortions, but some in Kansas do. Medicaid, the state-federal health insurance program for low-income Americans, pays for abortions only in limited circumstances, such as when a woman’s life is in danger.

Louisiana and Kansas announced plans to terminate funding for Planned Parenthood through Medicaid after an anti-abortion group released videos in 2015 purporting to show Planned Parenthood executives negotiating the for-profit sale of fetal tissue and body parts. Planned Parenthood denied the allegations and said the videos were heavily edited and misleading.

The organization’s affiliates in each state, as well as several patients, sued in federal court to maintain the funding.

Legal battles over other laws from Republican-led states could reach the court in the next year or two. Some seek to ban abortions in early pregnancy, including Iowa’s prohibition after a fetal heartbeat is detected. Others impose difficult-to-meet regulations on abortion providers such as having formal ties, called admitting privileges, at a local hospital.

(Reporting by Andrew Chung; Editing by Will Dunham)

U.S. top court snubs environmental challenge to Trump’s border wall

U.S. President Donald Trump speaks at a campaign rally on the eve of the U.S. mid-term elections at the Show Me Center in Cape Girardeau, Missouri, U.S., November 5, 2018. REUTERS/Carlos Barria  

By Andrew Chung

WASHINGTON (Reuters) – The U.S. Supreme Court on Monday rebuffed a challenge by three conservation groups to the authority of President Donald Trump’s administration to build a wall along the U.S.-Mexico border, a victory for Trump who has made the wall a centerpiece of his hardline immigration policies.

The justices’ declined to hear the groups’ appeal of a ruling by a federal judge in California rejecting their claims that the administration had pursued border wall projects without complying with applicable environmental laws. The groups are the Center for Biological Diversity, the Animal Legal Defense Fund and Defenders of Wildlife.

Their lawsuits said construction operations would harm plants, rare wildlife habitats, threatened coastal birds like the snowy plover and California gnatcatcher, and other species such as fairy shrimp and the Quino checkerspot butterfly.

Brian Segee, an attorney at the Center for Biological Diversity, said he was disappointed that the court would not hear the case.

“Trump has abused his power to wreak havoc along the border to score political points,” Segee said. “He’s illegally sweeping aside bedrock environmental and public health laws. We’ll continue to fight Trump’s dangerous wall in the courts and in Congress.”

Trump has clashed with U.S. lawmakers, particularly Democrats, over his plans for an extensive and costly border wall that he has called necessary to combat illegal immigration and drug smuggling. Congress, controlled by the president’s fellow Republicans, has not yet provided him the amount of money he wants.

The president has threatened a government shutdown unless lawmakers provide $5 billion in funding.

On Saturday, Trump said congressional leaders sought a two-week extension of funding ahead of a Dec. 7 deadline to fully fund the U.S. government and that he would probably agree to it.

Mexico has rejected Trump’s demand that it pay for the wall.

Illegal immigration was a central theme of Trump’s presidential bid, and he repeatedly invoked the issue ahead of the Nov. 6 congressional elections as a caravan of migrants from Central America made their way toward the United States. Trump deployed 5,800 U.S. troops to the border.

The three conservation groups sued last year in San Diego after the Department of Homeland Security authorized projects to replace existing border fencing at two sites in southern California, as well as the construction of prototype border walls.

The dispute centers on a 1996 law aimed at countering illegal immigration that gave the federal government the authority to build border barriers and preempt legal requirements such as environmental rules. That law also limited the kinds of legal challenges that could be mounted.

The groups argued that Trump’s wall projects did not fall under that law and that the measure was unconstitutional because it gave too much power to unelected Cabinet officials to avoid laws such as the Endangered Species Act and the National Environmental Policy Act.

U.S. District Judge Gonzalo Curiel in February ruled that the administration had not exceeded its powers. The groups appealed the judge’s decision to the Supreme Court.

The groups have said that giving the federal government unfettered power to waive applicable laws and limit judicial oversight is ripe for abuse. With such power, the plaintiffs argued, officials could theoretically give contracts to political cronies to build walls with no safety standards using child migrant labor, and “kill bald eagles in the process.”

The Trump administration urged the justices not to take up the appeal. A spokeswoman for the Justice Department on Monday declined to comment.

Trump criticized Curiel in 2016 in a different case, a lawsuit accusing his now-defunct Trump University of fraud. Trump, while running for president, accused Curiel of being biased against him because of the Indiana-born judge’s Mexican heritage.

(Reporting by Andrew Chung; Editing by Grant McCool)

Judge strikes down Mississippi ban on abortions after 15 weeks

By Joseph Ax

(Reuters) – A U.S. federal judge on Tuesday struck down a Mississippi law that bans most abortions after 15 weeks, ruling that it “unequivocally” violates women’s constitutional rights.

The law, considered one of the most restrictive in the country, was passed in March. It had already been put on hold by U.S. District Judge Carlton Reeves after the state’s lone abortion clinic, Jackson Women’s Health Organization, immediately sued.

Under U.S. Supreme Court precedent, states may not ban abortions before a fetus is viable, and the medical consensus is that viability typically begins between 23 and 24 weeks, Reeves wrote on Tuesday.

The judge acknowledged feeling “frustration” that Mississippi lawmakers passed the statute even though similar bans in other states have also been thrown out by federal courts.

“The real reason we are here is simple. The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote, referring to the landmark 1973 U.S. Supreme Court case that established a legal framework for abortion.

“This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature,” he added.

Governor Phil Bryant was traveling and was not immediately available to comment, according to his office. The state attorney general’s office, which defended the law in court, did not immediately comment on the ruling.

The decision effectively invalidates a similar 15-week ban in Louisiana, which was set to take effect only if the Mississippi law survived a court challenge.

“Today’s decision should be a wake-up call for state lawmakers who are continuously trying to chip away at abortion access,” Nancy Northup, president, and CEO of the Center for Reproductive Rights, which filed the lawsuit on behalf of the abortion clinic, said in a statement.

Abortion rights advocates have warned that the Roe precedent could be vulnerable following the October confirmation of Supreme Court Justice Brett Kavanaugh, who is widely seen as an abortion foe.

Other states have sought to install severe restrictions in the hope of provoking a legal fight at the nation’s top court. The Republican-controlled Ohio House of Representatives last week approved a measure that would ban abortions at six weeks, while Iowa’s law banning abortions after a fetal heartbeat is detected is tied up in a court battle.

(Reporting by Joseph Ax in New York; editing by Frank McGurty and Lisa Shumaker)

Eyeing conservative U.S. top court, two states pass abortion measures

FILE PHOTO: The U.S. Supreme Court is seen in Washington, U.S., June 11, 2018. REUTERS/Erin Schaff/File Photo

By Dan Whitcomb

(Reuters) – Voters in Alabama and West Virginia on Tuesday passed ballot measures that could pave the way for new limits or a full ban on abortion in those states if the conservative-majority U.S. Supreme Court overturns the 1973 ruling that legalized abortion.

In Oregon, meanwhile, an initiative that would prohibit the use of taxpayer money to fund abortion except in cases of medical necessity appeared headed for defeat.

The U.S. Supreme Court, in its landmark 1973 Roe v. Wade decision, legalized abortion nationwide, and the justices have reaffirmed a woman’s constitutional right to have an abortion in subsequent rulings since then.

Abortion opponents hope the addition of President Donald Trump’s appointee Brett Kavanaugh to the Supreme Court, replacing a retired justice who had protected abortion rights and cementing a 5-4 conservative majority, will lead to a dramatic scaling back or outright reversal of abortion rights recognized under the 1973 ruling.

In Alabama, an amendment to the state’s constitution to formally “recognize and support the sanctity of unborn life and rights of children, including the right to life” was leading by a margin of 59 percent to 40 percent with 96 percent of precincts counted, according to the New York Times.

The Republican-backed Amendment 2 does not specifically outlaw or restrict abortion in Alabama. But Republican state Representative Matt Fridy has said he wrote the measure with the Supreme Court’s conservative majority in mind.

“We want to make sure that at a state level, if Roe v. Wade is overturned, that the Alabama Constitution cannot be used as a mechanism by which to claim that there is a right to abortion,” Fridy told Fox News in an August interview.

In West Virginia, a ballot measure amending the state’s constitution to say that “nothing in this constitution secures or protects a right to abortion or funding of abortion” was ahead 51 percent to 48 percent with 54 out of 55 precincts reporting.

The Republican-led West Virginia legislature voted in March to put the initiative on the ballot, with lawmakers saying they wanted to make clear there was nothing in the state constitution preventing them from passing abortion-related legislation should the Roe ruling be overturned or narrowed.

Oregon’s Measure 106 would amend the state constitution to bar the use of public money to fund abortions except in cases of medical necessity or where mandated by federal law.

“All three of these instances are the latest in a long string of attacks on access to reproductive healthcare nationally,” said Katie Glenn, Alabama state director for Planned Parenthood Southeast Advocates. “Amendment 2 in Alabama specifically would pave the way to ban abortion without exception, regardless of whether the person was a victim of rape or incest or if their life is at risk.”

A number of Republican-governed states over the years have passed laws seeking to put restrictions on abortion, some of which have been invalidated by the courts.

The Supreme Court in 2016 bolstered constitutional protections for abortion rights when it threw out key parts of a Texas law that imposed hard-to-meet regulations on abortion facilities and doctors, finding the measure placed an “undue burden” on a woman’s ability to obtain an abortion in violation of a 1992 high court precedent.

Anthony Kennedy, the retired justice who Kavanaugh replaced, sided with the court’s four liberals in the 2016 ruling.

Overturning Roe would end a constitutional right to abortion, enabling individual states to set their own policies.

Alabama and West Virginia are among the states that already have laws on the books imposing certain restrictions on abortion, according to the Guttmacher Institute. The institute said four states have laws that would automatically ban abortion if Roe were to be reversed, seven states have laws that express an intention to restrict abortion as much as possible in the absence of Roe, and nine states still have on the books their unenforced, pre-Roe abortion bans.

(Reporting by Dan Whitcomb; Editing by Scott Malone and Will Dunham)

Kavanaugh takes active role in first day at U.S. Supreme Court

Newly confirmed and sworn-in U.S. Supreme Court Associate Justice Brett Kavanaugh heads off to his first day of work as a justice at the Supreme Court as he leaves his house in Chevy Chase, Maryland, U.S., October 9, 2018. REUTERS/Joshua Roberts

By Andrew Chung

WASHINGTON (Reuters) – Moving beyond a ferocious confirmation battle that divided the country, Brett Kavanaugh got down to business as a U.S. Supreme Court justice on Tuesday and took an active role in arguments alongside his eight new colleagues on his first day on the job.

Kavanaugh asked several questions during lively oral arguments involving a federal sentencing law for repeat offenders, three days after being confirmed by the Republican-led Senate despite being accused of sexual assault. Appointed by President Donald Trump, Kavanaugh’s confirmation cemented a conservative majority on the court that could last for years.

He took his seat at the right end of the mahogany bench in the ornate courtroom, wearing traditional black robes like the other justices. Retired Justice Anthony Kennedy, the 82-year-old jurist who Kavanaugh replaced, was in the courtroom, as were members of the new justice’s family.

With police standing by, a handful of protesters gathered outside the Supreme Court building, holding signs saying “Shame” and “He sits on a throne of lies,” while chanting, “This isn’t over, we’re still here.” There were no disruptions by protesters during the oral arguments, with security tight in the courtroom.

Before the arguments began, Chief Justice John Roberts welcomed Kavanaugh, 53, to a court that now has five conservative members and four liberals. Kavanaugh could serve for decades in the lifetime job.

“We wish you a long and happy career in our common calling,” Roberts said.

Kavanaugh was quick to weigh in, asking his first question of a lawyer representing a defendant about 20 minutes into the first argument. He ended up asking questions of lawyers on both sides during two cases argued before the justices.

He could also be seen having a lighthearted exchange with liberal Justice Elena Kagan, seated next to him.

Tuesday’s cases involved the 1984 Armed Career Criminal Act, a “three-strikes-and-you’re-out” criminal sentencing law that boosts prison sentences after multiple violent felonies or drug offenses.

The cases challenge the types of crimes that qualify as violent felonies under that law and can lead to 15-year mandatory minimum sentences for a defendant. The cases concerned a Florida robbery conviction and burglary convictions in Tennessee and Arkansas.

Kavanaugh’s confirmation gave the Republican president a major political victory ahead of crucial Nov. 6 congressional elections, with Trump’s second selection for the nation’s highest judicial body. Conservative Justice Neil Gorsuch joined the court last year.

Trump on Twitter on Tuesday said he was “very proud” of Kavanaugh and his family, and disparaged the anti-Kavanaugh protesters.

The bitterly divided U.S. Senate voted 50-48 on Saturday to confirm Kavanaugh, with just one Democrat supporting him.

Kavanaugh’s nomination had appeared safe until Christine Blasey Ford, a university professor in California, last month went public with allegations that Kavanaugh had sexually assaulted her in 1982 when they were high school students in Maryland. Two other women also accused Kavanaugh of sexual misconduct dating to the 1980s.

Kavanaugh denied the allegations and during a Senate hearing on Sept. 27 accused Democrats of an “orchestrated political hit.”

He later wrote in a newspaper opinion piece that he regretted some of his comments. But critics said Kavanaugh’s demeanor before the Senate Judiciary Committee raised questions about his temperament and potential political bias in deciding cases.

Some analysts said the court’s reputation could suffer as it becomes perceived as a political, rather than a legal, institution.

ENVIRONMENTAL CASE

Kavanaugh moved to the Supreme Court after spending 12 years as a judge on the influential U.S. Court of Appeals in Washington, building a conservative judicial record.

Before hearing arguments on Tuesday, the justices turned aside appeals of a 2017 ruling authored by Kavanaugh on the lower court that struck down a 2015 environmental rule imposed under former President Barack Obama regulating a potent greenhouse gas linked to climate change.

The appeals were brought by an environmental group and companies that supported the rule, which had limited hydrofluorocarbons used in a variety of products including spray cans and air conditioners.

At a White House ceremony on Monday night, Kavanaugh said he was starting his new job without bitterness. “Although the Senate confirmation process tested me as it has tested others, it did not change me,” Kavanaugh said.

But Trump, who last week publicly mocked Ford, continued to stoke political divisions at Monday’s ceremony, saying Kavanaugh had been the victim of “a campaign of political and personal destruction based on lies and deception.”

Kavanaugh is expected to push the court further to the right as he is replacing Kennedy, a conservative who sometimes voted with the liberal justices on key social issues including in cases involving abortion and gay rights.

Kavanaugh can be expected to cast crucial votes on those issues as well as gun control, immigration, voting rights and others. His views on presidential powers could be tested within days in a dispute over whether Commerce Secretary Wilbur Ross should submit to questioning by lawyers suing the Trump administration over a decision to add a controversial citizenship question to the 2020 census.

(Reporting by Andrew Chung; Additional reporting by Lawrence Hurley, Jeff Mason and Susan Heavey; Editing by Will Dunhsam and Bill Trott)

Senate panel backs Trump’s court pick, but Flake seeks FBI probe

Senate Judiciary Committee members (L-R) Sen. Ted Cruz (R-TX), Sen. Lindsey Graham (R-SC), Sen. Orrin Hatch (R-UT) and Chairman Charles Grassley (R-IA) talk at the conclusion of the Supreme Court confirmation hearing for Judge Brett Kavanaugh in the Dirksen Senate Office Building on Capitol Hill in Washington, DC, U.S., September 27, 2018. Win McNamee/Pool via REUTERS

By Amanda Becker, David Morgan and Lawrence Hurley

WASHINGTON (Reuters) – A Republican-led committee approved President Donald Trump’s nomination of Brett Kavanaugh to the U.S. Supreme Court but moderate Republican Senator Jeff Flake called for an FBI investigation into sexual misconduct allegations against the judge before a final Senate vote.

Flake’s intervention means a final Senate vote on the nomination could be delayed for up to a week so that the possible FBI investigation can be completed, if Republican Senate leaders agree to his demand.

“I will vote to advance the nominee to the floor with that understanding,” Flake said.

Just before the scheduled vote in the Judiciary Committee, Flake left the committee room to talk to some Democrats, adding new drama to the proceedings. During the delay, senators and aides could be seen in the committee room having hushed conversations, with some going back and forth to an anteroom of the committee chamber.

Trump’s fellow Republicans secured the votes to approve Kavanaugh in the sharply divided committee after Flake announced his support for the nominee earlier in the day. The full Senate must confirm Supreme Court appointments.

The committee, with tempers flaring on both sides, met the morning after a jarring and emotional hearing into sexual misconduct allegations against Kavanaugh that gripped the country, with a university professor named Christine Blasey Ford accusing him of sexual misconduct. He denied the accusation.

One Republican, Senator John Kennedy, called Kavanaugh’s confirmation process “an intergalactic freak show.”

As the committee, with 11 Republicans and 10 Democrats, set its vote, some Democrats left the room in protest. “What a railroad job,” Democratic Senator Mazie Hirono said.

It remained unclear if Republicans have the votes to confirm Kavanaugh on the Senate floor. Republicans hold a slim Senate 51-49 majority, making the votes of two other so-far undecided Republican moderates crucial: Lisa Murkowski and Susan Collins.

Republican committee Chairman Chuck Grassley said he found Thursday’s testimony from both Ford and Kavanaugh “credible,” but added, “There’s simply no reason to deny Judge Kavanaugh a seat on the Supreme Court on the basis of evidence presented to us.”

The timing of the panel’s session gave committee members little time to review Thursday’s extraordinary testimony from Kavanaugh and Ford, who accused him of sexually assaulting her when they were high school students in 1982. Kavanaugh forcefully denied the accusations and accused Democrats of a “calculated and orchestrated political hit.”

Senator Dianne Feinstein, the committee’s senior Democrat, called Kavanaugh’s remarks unseemly for a judicial nominee.

“This was someone who was aggressive and belligerent. I have never seen someone who wants to be elevated to the highest court in the country behave in that manner. In stark contrast, the person who testified yesterday and demonstrated a balanced temperament was Dr. Ford,” Feinstein said.

Another Democrat, Amy Klobuchar, noted that Grassley had thanked Ford for her bravery but nevertheless failed to back any further investigation.

“Where is the bravery in this room?” Klobuchar asked.

‘THEY DON’T MATTER’

Flake, who had previously raised concerns about the allegations against Kavanaugh, said Ford gave “compelling testimony” but Kavanaugh provided “a persuasive response.”

Soon after Flake made his announcement, he was confronted in an elevator while on his way to the committee meeting by two protesters who said they were sexual assault survivors.

“That’s what you’re telling all women in America – that they don’t matter, they should just keep it to themselves,” one of the protesters shouted at Flake in an exchange aired by CNN.

“I need to go to my hearing. I’ve issued my statement,” Flake said.

The controversy has unfolded just weeks ahead of the Nov. 6 congressional elections in which Democrats are trying to seize control of Congress from the Republicans.

If confirmed, Kavanaugh would consolidate conservative control of the nation’s highest court and advance Trump’s broad effort to shift the American judiciary to the right.

Democrats said Kavanaugh’s confirmation could taint the Supreme Court, which prides itself on staying above the political fray.

“Voting to advance and ultimately confirm Judge Kavanaugh while he is under this dark cloud of suspicion will forever change the Senate and our nation’s high court. It will politicize the U.S. Supreme Court,” Democratic Senator Patrick Leahy said.

Democrats have urged a delay in the confirmation process to allow for an FBI investigation. The American Bar Association, which earlier endorsed Kavanaugh, and the dean of Yale Law School, which Kavanaugh attended, also called for an FBI probe, the first indication of the legal profession turning on the nominee.

The committee Republicans also voted down a Democratic motion seeking to subpoena Mark Judge, a Kavanaugh friend who Ford said witnessed the assault. Judge told the committee in a written statement he does not recall any such incident.

Senator Joe Donnelly, a moderate Democrat who last year voted for Trump’s previous Supreme Court nominee Neil Gorsuch, announced he would vote against Kavanaugh. Two other key moderate Democrats who voted for Gorsuch, Heidi Heitkamp and Joe Manchin, have not announced how they will vote.

Kavanaugh could be the deciding vote on contentious legal issues if he is confirmed to the nine-member court, with disputes involving abortion, immigration, gay rights, voting rights and transgender troops possibly heading to the court soon. The court begins its next term on Monday, down one justice after the retirement of conservative Anthony Kennedy effective in July. Trump nominated Kavanaugh to replace Kennedy.

Ford testified on Thursday she was “100 percent certain” Kavanaugh assaulted her. Kavanaugh called himself the victim of “grotesque and obvious character assassination.”

Questions were raised about Kavanaugh’s temperament at the hearing as well as his fiery political accusations and how that could impact his role on the court.

“I believe once he gets to the Supreme Court, he will call the balls and strikes fairly,” White House adviser Kellyanne Conway told “CBS This Morning,” using a baseball analogy.

 

(Reporting by Richard Cowan and David Morgan; Additional reporting by Lawrence Hurley, Amanda Becker, Andrew Chung, Susan Heavey and Bernie Woodall; Editing by Will Dunham)

Supreme Court nominee steers clear of Trump criticism

Supreme Court nominee Brett Kavanaugh testifies while White House Counsel Don McGahn (right) listens during the third day of his confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, U.S., September 6, 2018. REUTERS/Alex Wroblewski

By Lawrence Hurley and Amanda Becker

WASHINGTON (Reuters) – U.S. Supreme Court nominee Brett Kavanaugh stressed on Thursday that he believes the judiciary has broad authority to check the power of the White House, but refused to criticize the man who selected him, President Donald Trump.

In a second day of testimony, Kavanaugh declined to comment on Trump’s criticism of the judiciary or offer praise of the president’s character.

Democrats at Kavanaugh’s Senate confirmation hearing also pressed the conservative federal appeals court judge over newly released emails highlighting his views on abortion and racial issues after a partisan fight over the public release of the documents.

The documents released on Thursday dated from Kavanaugh’s service in the White House under Republican President George W. Bush more than a decade ago. Democrats had objected to an earlier decision by the Senate Judiciary Committee’s Republican leadership not to make the emails public.

The third day of the confirmation hearing again was repeatedly interrupted by protesters hostile to Kavanaugh. The nominee, enduring back-to-back days of lengthy questioning, remained in good humor, making no gaffes that were likely to derail his confirmation in a Senate narrowly controlled by Trump’s fellow Republicans, despite the efforts of Democrats opposed to him.

Some liberals have expressed concern Kavanaugh could be a rubber stamp for Trump and protect him from lawsuits and investigations.

Asked by Democratic Senator Cory Booker whether he was picked because of an expectation of loyalty to Trump, Kavanaugh responded: “My only loyalty is to the Constitution. I’m an independent judge.”

Kavanaugh refused to say whether he had “the greatest respect” for Trump, a phrase Booker said he had used when describing Bush.

JUDICIAL AUTHORITY

Democratic Senator Dick Durbin said Kavanaugh’s nomination comes at a time when Trump poses a threat to America’s rule of law and is facing an ongoing special counsel investigation. Kavanaugh said his 12 years as a judge demonstrated he was unafraid “to invalidate executive power when it violates the law.”

Kavanaugh had declined on Wednesday to answer whether a president would have to respond to a court’s subpoena, saying he could be asked to rule on the matter. But under questioning by Durbin on the scope of presidential power, Kavanaugh underscored judicial authority.

“When a court order requires a president to do something or prohibits a president from doing something under the Constitution or laws of the United States, under our constitutional system, that is the final word,” Kavanaugh said.

Kavanaugh, probed again on his views on a 1974 Supreme Court ruling against President Richard Nixon requiring recordings made in the Oval Office to be given to prosecutors, said the case was correctly decided. He called it “a moment of judicial independence where I think the court came together” in a unanimous decision.

Kavanaugh declined to answer questions on how that case could be applied relating to the investigation by Special Counsel Robert Mueller into potential collusion between Trump’s 2016 presidential campaign and Russia.

He also repeated his refusal to comment on whether he would recuse himself if a case involving the Mueller investigation or other issues relating to Trump’s conduct came before him.

If confirmed, Kavanaugh is seen as likely to tilt the top U.S. court even further to the right. That prospect worries Democrats and heartens Republicans on volatile issues including abortion, gun rights, gay rights, the death penalty, religious liberty and business regulation.

The committee considering Kavanaugh’s nomination will hear from outside witnesses on Friday before the hearing wraps up. Republicans hope the full Senate can vote on the nomination close to the time the Supreme Court’s new term starts on Oct 1.

‘SETTLED LAW’

In a 2003 email released on Thursday, Kavanaugh suggested striking a line from a draft opinion piece that had stated: “It is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land,” saying that the Supreme Court could overturn it.

Asked about that document, Kavanaugh said he suggested the change because he thought the draft language was overstating the thinking of legal scholars at the time. He again declined to say whether the landmark 1973 ruling that legalized abortion nationwide, Roe v. Wade, was correctly decided, although he indicated – as he did on Wednesday – that it was a decision that merited respect as “an important precedent of the Supreme Court.”

The hearing opened with Democrats complaining that various documents had not already been made public by the committee’s Republican leaders. They were released by the committee minutes later.

Booker called the process used by the committee to decide which documents to make public “a bit of sham,” a characterization rejected by the panel’s Republican chairman, Chuck Grassley. Booker said he was willing to face possible punishment under Senate rules by releasing the documents himself, although Republicans said they had already agreed to release them.

Trump picked Kavanaugh, 53, to replace Justice Anthony Kennedy, who announced his retirement in June.

(Reporting by Lawrence Hurley and Amanda Becker; Editing by Will Dunham and Peter Cooney)