During a 10-minute break Wednesday afternoon in the Brett Kavanaugh confirmation hearing, CNN’s assembled panelists and supposed journalists boasted of Rhode Island Democratic Senator Sheldon Whitehouse decrying money in politics to Judge Kavanaugh and bemoaning the nominee refusing to commit to saving portions of ObamaCare.
Right off the bat, senior legal analyst Jeffrey Toobin conceded that Kavanaugh “seems like he’s doing fine” but “[c]ertainly the most aggressive questioning he's gotten so far is from Sheldon Whitehouse, the Senator from Rhode Island, who was after him on the subject of dark money” which, even though it won’t “change a lot of votes....it is an important question about American politics.”
So then why ask those questions to begin with, Jeffrey?
Fellow CNN legal hand Joan Biskupic admitted that Kavanaugh has been “very disciplined” and “stay[ed] on message,” but “starting to get a little rougher with some of the other Democrats on the committee, in addition to Sheldon Whitehouse.”
Perhaps the largest part of the discussion harped on ObamaCare and Kavanaugh’s refusal to answer hypotheticals. Chief political analyst Gloria Borger stated that she was “interested” by Whitehouse being “really aggressive” as “[h]e wanted a guarantee that he would keep pre-existing conditions in the Affordable Care Act and we know that there's this controversy.”
She complained that the administration won’t defend ObamaCare in a Texas court case being also being held on Monday, but it’d be intriguing to see what she thought about when the Obama administration refused to defend laws in court.
Borger and former Obama official Jen Psaski then went on a tear about this, all but conceding that what Democrats were doing was a political stunt (but expressed no disagreement with it) (click “expand” for more):
BORGER: [P]re-existing conditions is clearly one of the things that Democrats are talking about on the campaign trail because they know what kind of resonance it has and there was Whitehouse saying to a potential Supreme Court nominee, I need a guarantee from you that you're not going to take away pre-existing conditions, which after all, is the current law, you know?
JEN PSAKI: But this is also a topic I'm actually surprised and a little disappointed the Democrats have not focused more on, health care.
BORGER: Yeah. I thought so too.
PSAKI: This is the core issue where there are legitimate questions but also it's a huge political issue. It is the best political issue for Democrats.
BORGER: Yeah.
RICK SANTORUM: Yeah, but he’s not going to answer the questions. He can’t answer the questions.
BORGER: But asking him?
PSAKI: The point is, there are legitimate questions in a hearing like this about how he would approach this. But at the same time, for people watching at home, they care deeply about health care being taken away and so I hope that the next Democrats that come up talk about this quite a bit more.
While Toobin played the role of partisan Democrat by suggesting that the judiciary will yank health care away from droves of Americans, host Wolf Blitzer intjected some sense into the discussion by pointing out the obvious, which is that judicial nominees won’t comment on hypothetical cases:
These are hypothetical questions that may come before the Supreme Court when he's a justice of the Supreme Court, and he's going to say what other Supreme Court justices during their confirmation hearings have said. I can't answer that question right now. Democrats can press and press and press, but he's not going to answer.
To see the relevant transcript from CNN’s Kavanaugh coverage on September 5, click “expand.”
CNN’s Kavanaugh coverage
September 5, 2018
3:02 p.m. EasternJEFFREY TOOBIN: It certainly seems like he's doing fine. Certainly the most aggressive questioning he's gotten so far is from Sheldon Whitehouse, the senator from Rhode Island, who was after him on the subject of dark money, of campaign contributions, who was talking about, you know, money that was spent on behalf of his confirmation, outside groups putting forth money. Kavanaugh said, you know, essentially it was all news to me. I don't think it's the kind of questioning that's going to change a lot of votes, but, you know, it is an important question about American politics. You know, why we don't know the sources of the money that's being spent on political issues. But, you know, the Republicans have been, you know, serving up softballs. There was kind of — excuse me — an endearing nerdfest between Mike Lee of Utah, someone who knows a lot of constitutional law, and Judge Kavanaugh about what their favorite Federalist Paper was, which I think is actually ratings magic for CNN. [PANEL LAUGHS]
(....)
JOAN BISKUPIC: He's still staying on message with his talking points. Very disciplined. It's starting to get a little rougher with some of the other Democrats on the committee, in addition to Sheldon Whitehouse. Senator Durbin really pressed him on his dissent in the abortion case. You know, that's obviously Topic A with these and I think Senator Klobuchar and Harris and booker coming down the line, we're going to see a little bit more give and take. But he was also asked about the role of the Federalist Society in choosing him for this and sort of said, you know, the President chose me. I've said President Trump chose me. He really wanted to make sure that he separated himself from that role in some ways.
(....)
GLORIA BORGER: But the other thing that interested me — and Whitehouse, as you were saying, was really aggressive today. He wanted a guarantee that he would keep pre-existing conditions in the Affordable Care Ac and we know that there's this controversy. And the administration is refusing to defend —
JEN PSAKI: And there's also a legal case being —
TOOBIN: That starts today.
BORGER: It starts today. Right now. Exactly, it starts today in Texas and pre-existing conditions is clearly one of the things that Democrats are talking about on the campaign trail because they know what kind of resonance it has and there was Whitehouse saying to a potential Supreme Court nominee, I need a guarantee from you that you're not going to take away pre-existing conditions, which after all, is the current law, you know?
JEN PSAKI: But this is also a topic I'm actually surprised and a little disappointed the Democrats have not focused more on, health care.
BORGER: Yeah. I thought so too.
PSAKI: This is the core issue where there are legitimate questions but also it's a huge political issue. It is the best political issue for Democrats.
BORGER: Yeah.
RICK SANTORUM: Yeah, but he’s not going to answer the questions. He can’t answer the questions.
BORGER: But asking him?
PSAKI: The point is, there are legitimate questions in a hearing like this about how he would approach this. But at the same time, for people watching at home, they care deeply about health care being taken away and so I hope that the next Democrats that come up
WOLF BLITZER: But you know —
PSAKI: — talk about this quite a bit more.
BLITZER: Very quickly.
TOOBIN: Well, just to elaborate a tiny bit, the — there is a lawsuit that is being argued today —
BORGER: Yes.
TOOBIN: — in Texas where the Trump administration and 20 Republican attorneys general are arguing for a court to take away pre-existing condition protection
BORGER: Exactly.
TOOBIN: — from everyone. That's a big deal.
BLITZER: Well, that explains —
SANTORUM: They're trying to invalidate ObamaCare.
TOOBIN: Exactly, yeah.
SANTORUM: It’s not just — see, you’re making it sound like they’re just going after preexisting conditions.
BORGER: But the Department of Justice is not defending ObamaCare.
TOOBIN: And all those other terrible things in ObamaCare like, you know, staying on your parents’ —
SANTORUM: They’re going — they’re going —
TOOBIN: — insurance until you're 24. Out the door with that.
SANTORUM: — they're going after all the other insurance regulations that make this a disaster that it is.
TOOBIN: Exactly.
SANTORUM: So yes, they are going after all those things.
TOOBIN: We agree, Rick.
SANTORUM: Good.
BORGER: Right.
BLITZER: I mean, as these cases unfold right now, that explains why he's not going to answer these questions.
BORGER: Right, correct.
BLITZER [PANELISTS SHOUTING]: These are hypothetical questions that may come before the Supreme Court when he's a justice of the Supreme Court, and he's going to say what other Supreme Court justices during their confirmation hearings have said. I can't answer that question right now.
BORGER: But it also explains why —
BLITZER: Democrats can press and press and press, but he's not going to answer.
PSAKI: It’s true, but they want people to say tune in. This matters. Elections matter. Who we nominate for courts matters. This is the issue that they should be doing it on.
BORGER: And it also helps explain, I think, why the President today suddenly, out of nowhere, started raising Social Security and Medicare, saying we're going to protect your Social Security and Medicare. Everybody understands who's running for office, how important this issue is to the American people. And, you know, so Trump started talking about it today because he says, you know, he wants to talk about Progressive Democrats and what they're going to do and in this hearing, Whitehouse knew exactly what he was doing on this particular issue.
BLITZER: Yeah. Alright. He's not going to protect Social Security and Medicare if the budget deficit is a trillion dollars a year, which it looks like it's going to be next year. But that's another issue we're not going to get to.
BORGER: It is.
