Winner: Trump. Loser: women and people of color.
After days of hearings on President Trump’s Supreme Court nominee, we are essentially back where we started. Brett Kavanaugh is on the fast track to a permanent place on America’s highest court.
There were times when Democrats won on small moments. They effectively won the narrative on the opening moments of the hearings by pointing out that Republicans dumped thousands of documents hours before the hearings were supposed to begin. Sen. Cory Booker (D-NJ) made a show of releasing emails that were already slated to become public to make a point about Kavanaugh’s views on diversity. Sen. Kamala Harris (D-CA) heavily implied — but didn’t have the goods to prove — Kavanaugh inappropriately discussed the Mueller investigation with someone at Trump’s personal lawyer’s firm.
Some Democrats even suggested Kavanaugh’s disingenuousness in his role in Judge William Pryor’s nomination might constitute perjury (legal experts were not so convinced).
Though Democrats won some of the battles in the week of lengthy hearings, what ultimately matters is if 51 senators (or 50 senators and Vice President Mike Pence) want to confirm Kavanaugh to his place on the Supreme Court. And they almost certainly do.
Winner: the conservative movement
There’s no secret that conservatives have been on a mission to remake federal courts. The Federalist Society, of which Brett Kavanaugh was once a member, was founded in the early 1980s as a reaction to what conservatives viewed as a tyranny of the liberal federal courts and law schools. The 1960s and ’70s was the heyday of liberalism on the Supreme Court, which had ordered schools integrated, legalized abortion, and outlawed discriminatory voting laws in Southern states. These are seismic cultural shifts — and conservatives wanted a way to reverse these changes.
They set out on a mission to grow the ranks of conservatives in law schools, in federal courts, and ultimately at the Supreme Court. Now, with Kavanaugh as the fifth vote in the Court’s conservative bloc, they are going to get their prize. Kavanaugh is more conservative than Republican-appointed Justice Anthony Kennedy, and though Kavanaugh gave a lot of non-answers on controversial topics, conservatives widely expect he will hand down victories on restricting abortion, striking down affirmative action, and protecting corporations from onerous environmental regulations.
This is why frustrated liberals won’t gain any traction by picking at Kavanaugh’s inconsistent statements or pointing to his conservative record. This is why Republicans continue to put up with Trump even as they increasingly admit that they don’t necessarily approve of his erratic behavior or his associations with white supremacists. For them, the mission has always been about getting a majority of conservatives on the Court.
Indeed, as Vox’s Jane Coaston pointed out, 56 percent of voters who found the Supreme Court nominations to be “the most important factor” went for Trump. Republicans made a deal: They’d protect Trump, and Trump would give them their Supreme Court nominee.
Now that goal is all but inevitable. —Kay Steiger
Winner: Democratic hopefuls for 2020
It might still be two years out, but the looming 2020 election was as omnipresent as ever during the confirmation hearing this week. For several rumored Democratic hopefuls on the Senate Judiciary Committee — including Booker, Harris, and Minnesota’s Amy Klobuchar — this panel was much more than an opportunity to scrutinize Kavanaugh. It was also an important chance to further establish themselves in the public consciousness ahead of the presidential election.
Harris and Booker, especially, didn’t disappoint. Both lawmakers have been among the most forceful in their critiques of Kavanaugh up until this hearing, and their persistent protests and questioning during the panel stood out for their tone and substance.
Since the announcement of Kavanaugh’s nomination, Booker has pushed the case that there’s a conflict of interest inherent in a president nominating a Supreme Court justice who could oversee elements of a criminal investigation of which he’s a subject.
This week, Booker was also at the center of one of the hearing’s most contentious exchanges when he dramatically threatened to release documents that had been designated confidential to the committee, even if it meant he would get ousted from the Senate. “This is probably the closest that I’ll have in my life to an ‘I am Spartacus’ moment,“ he said. (There has been some subsequent back-and-forth about whether those documents were already made public before Booker took his stand.)
Harris is also associated with two of the most viral moments to come out of the hearing. She was the first to ignite calls to adjourn the hearing as part of a protest staged by Democrats on the chaotic first day and had many people buzzing in the wake of a mysterious question she asked Kavanaugh on Wednesday. In that discussion, she implied that Kavanaugh may have a met with someone for Kasowitz Benson Torres, a firm founded by Trump’s personal attorney, to discuss the Mueller investigation.
As Politico reported earlier this week, both only recently hinted at their 2020 ambitions. Republicans, however, haven’t been shy about calling it out. “Running for president is no excuse for violating the rules of the Senate or the confidentiality of the documents we are privy to,” said Senate Majority Whip John Cornyn shortly after Booker proposed breaking Senate rules. —Li Zhou
Winner: Donald Trump
While his first major job was working for independent counsel Ken Starr in attempting to prove criminal wrongdoing by the president, Kavanaugh has since famously reversed himself, and said that Congress ought to pass a law preventing the president from being criminally investigated or prosecuted. There’s of course a difference between what laws he’d support and how he’d interpret the law once in office.
But with the president under investigation, Senate Democrats pressed Kavanaugh on the topic, only to be met with a stubborn refusal to opine on a “hypothetical.” Kavanaugh wouldn’t say if the president has the right to pardon himself. He downplayed his proposal for immunity: “They were ideas for Congress to consider. They were not my constitutional views.” But obviously the difference can and often does blur for justices.
If you’re the president, and worried that your appointee might make an about-face and affirm that you’re subject to ordinary prosecution and investigation, that’s pretty great news. —Dylan Matthews
Loser: #StopKavanaugh and the resistance
A steady stream of protesters punctuated the hearing this week — including women dressed as Handmaids lining the halls, activists occupying Judiciary Chair Chuck Grassley’s office, and others rallying in front of the Supreme Court. On both Tuesday and Wednesday, roughly 70 protesters were either arrested or forced to leave the hearing room as they intermittently shouted out to disrupt the proceedings.
“Vote No, Save Roe!” was a common refrain. “The people dissent” was another.
Odds aren’t looking good for their cause, however. Senate Majority Leader Mitch McConnell has said he intends to hold a vote on Kavanaugh in the Senate before October 1, the beginning of the Supreme Court’s fall session. Activists and Democrats were looking toward this week’s hearing as a pivotal opportunity to make their case against him and drum up grassroots opposition.
As their thinking goes, if enough protesters put pressure on important swing votes like Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), it’s possible, but unlikely, that they could be convinced to block Kavanaugh’s nomination.
During the hearing, however, Kavanaugh managed to evade direct answers on hot-button issues like executive power, abortion rights, and health care by either citing the “Ginsburg rule” and deeming the inquiries “hypotheticals” or noting that certain suits were ongoing. As a result, the panel provided little ammunition that protesters didn’t already have. —LZ
Loser: women and people of color
Advocates for gender equality and racial justice have been concerned about Kavanaugh since his nomination, and his responses during his confirmation hearings did nothing to assuage their worries. When questioned about his views on Roe v. Wade, he fell back on vague statements like, “It’s settled as precedent of the Supreme Court,” even though he himself said in a 2003 email that the Supreme Court can overturn any precedent it wishes. Essentially, nothing Kavanaugh said did anything to dispel the concern that he would vote to overturn or gut Roe v. Wade.
If that happens, abortion would probably remain legal in some states, but access nationwide would almost certainly be restricted even more than it is now — and those facing the most barriers would be low-income people and people of color. As Julie Rikelman, senior director of litigation for the Center for Reproductive Rights, put it in an interview with Vox earlier this week, “the people who are harmed by abortion restrictions disproportionately are people who are poor, who are young, who are minorities.”
Kavanaugh also appeared to refer to birth control as “abortion-inducing drugs.” While he was paraphrasing a claim made by a religious group, his larger argument — that it was an unacceptable infringement on religious freedom to require religious groups to fill out a form in order to be exempted from Obamacare’s contraceptive coverage requirement — suggests he’d be likely to rule in ways that would restrict contraceptive coverage. Again, those most likely to lose access would be low-income Americans.
When questioned about his views on race and affirmative action, Kavanaugh was just as vague as he was on other topics. Asked by Booker about his statement in 1999 that all Americans would be considered “one race” in “10 or 20 years,” he said it was an “aspirational comment” inspired by “hope.” Asked for his personal opinion on affirmative action, he again fell back on talk of precedent: “I have to follow precedent and the precedent allows remedies in certain circumstances.”
Overall, Kavanaugh said nothing to show he would uphold reproductive rights or affirmative action if confirmed — and some of his comments suggested his decisions might actively harm them. —Anna North
Loser: civil libertarians
Republicans perhaps didn’t expect to win the arguments that had been raised during the George W. Bush years on warrantless wiretapping and torture years later, but here we are. Kavanaugh is a Bushie through and through, and in fact cited the 9/11 attacks during his confirmation hearing as the reason he changed his mind on criminal investigations and the presidency.
“What changed was September 11. I thought very deeply about the presidency, and I thought very deeply about the independent counsel experience,” Kavanaugh said. “When I saw President Bush come into the Oval Office on September 12, he said, ’This will never happen again.’”
Democrats zeroed in on early-2000s-era testimony Kavanaugh had delivered during judicial confirmation hearings in which he insisted he knew nothing about the Bush administration’s warrantless wiretapping program.
But emails released this week revealed he actually had some knowledge of the surveillance operation the Justice Department conducted under the legal guidance of John Yoo. Similarly, his previous testimony indicated he had no knowledge of the legal justification of detention of “enemy combatants” — but Sen. Dick Durbin (D-IL) pointed to records that showed otherwise.
All through this week, Kavanaugh repeatedly denied having any personal role in the Bush administration’s legal justification for torture or warrantless wiretapping, but as a Supreme Court justice, he’ll certainly be involved. —KS
Author: Kay Steiger