AUDIE CORNISH, HOST:
Democrat Sheldon Whitehouse, of Rhode Island, is on of the senators who quizzed the nominee today. Senator Whitehouse, welcome to the program.
SHELDON WHITEHOUSE: Thank you. Good to be with you.
CORNISH: I want to touch on an issue we just heard from Nina Totenberg about the power of the presidency - whether presidents can - how they respond to criminal subpoenas and the issue of privilege. Did those responses satisfy you?
WHITEHOUSE: No, not entirely. When you have somebody as well-schooled as Judge Kavanaugh saying, on the one hand, that United States v. Nixon was wrongly decided - his words - and then you have him coming into our committee and saying it's one of the greatest - one of the four greatest decisions ever, it's very hard to figure out what is going on. It just doesn't seem that those are two statements that can be so easily reconciled. And for him to say, well, it was just a misunderstanding - a misunderstanding of what? Wrongly decided is a pretty straightforward phrase.
CORNISH: On this issue and other topics, we did hear Kavanaugh talk about the idea of respecting precedent but then also saying that, you know, he can't talk about how he would rule on future cases. People talk about this as the Ginsburg standard, after Ruth Bader Ginsburg. Were you expecting anything more revealing from him?
WHITEHOUSE: No. We have now gotten to a point in these Supreme Court confirmation hearings where the nominee has been vetted and coached and murder boarded very successfully. And Kavanaugh, in the old days, used to do the vetting and coaching and murder boarding. So he knows the process from the fixer side of the process, and he's a very well-schooled person on this particular stage.
And we have now seen, nominee after nominee after nominee, say that precedent is so important. Respect for the settled law is critical. They will always honor it. And stare decisis is a key judicial principle. And then they go running off, and they decide Citizens United on dark money. They - or on big money. They decide Shelby County on voter suppression. They decide Janus on labor rules. You go through case after case where they make these very, very big decisions that are completely unsupportable under any view of precedent. So...
CORNISH: So is there anything you would hear...
WHITEHOUSE: ...It's a fairy tale at this point, and it's a tiresome fairy tale. But they stick to their guns. The chairman never forces a real answer to the question.
CORNISH: But if you're calling it a tiresome fairy tale, then, in a way, what's the point? You don't have the votes. You're saying you're not hearing anything that would convince a red-state Democrat that he should not be confirmed. So what now?
WHITEHOUSE: Well, we have more questions to pursue. I think what I've been focusing on has been as much the Supreme Court itself as Kavanaugh - and trying to bring to light the Supreme Court's record of 5-to-4 decisions, in which all the Republicans get together, and they do something new and different and contrary to precedent but with a seeming inevitability that the big corporate interests behind the Republican - excuse me - Republican Party win.
CORNISH: In the meantime...
WHITEHOUSE: And I went through a list of 73 to 0, which is a pretty rough statistic.
CORNISH: Though people would argue obviously that they think liberal justices vote together as a bloc as well.
WHITEHOUSE: Well, you know, they may say that. But it's really hard to support that proposition when you've got five judges going off and doing something new that breaks precedent, that delivers a big win for the interests that are behind the party that appointed them. It's a little hard to blame the remaining four for sticking together in that circumstance. If anything, they got left behind, not - didn't go off rampaging on their own.
CORNISH: Finally, the protesters that are interrupting periodically - hurting or helping Democrats right now?
WHITEHOUSE: My opinion - hurting.
CORNISH: In what way?
WHITEHOUSE: At least particularly in the states in which we have, you know, our Senate races. I think that the average independent voter - the labor family that voted for Trump last time but is now reconsidering - people like that don't think that screaming in a hearing room is a particularly effective strategy or a signal of a party that they much want to belong to. So I think it's been not helpful to any cause that I can see.
CORNISH: That's Senator Sheldon Whitehouse, Democrat from Rhode Island, member of the Senate Judiciary Committee. Thank you for speaking with ALL THINGS CONSIDERED.
WHITEHOUSE: My pleasure.
(SOUNDBITE OF NAUTILUSS' "ODYSSEY")
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.