“There will be sparks at this hearing.”
Supreme Court nominee Brett Kavanaugh heads to the Senate Judiciary Committee on Tuesday, where lawmakers will be able to publicly press the controversial pick on a wide-ranging set of issues — including abortion rights and executive power.
The confirmation hearing, which is expected to go all week, is an important opportunity to shed more light on Kavanaugh’s record and legal reasoning. It’s historically served as a vital step in vetting contenders for the high court. It’s also a last-ditch chance for Democrats to make their case against the nominee before he gets a Senate vote. And they aren’t planning to hold back.
Democrats are expected to hammer Kavanaugh on his perspective on Roe v. Wade, his willingness to preserve protections for those with preexisting health conditions, and his stance on gun control, among a slew of subjects.
“There will be sparks at this hearing,” said Sen. Richard Blumenthal (D-CT), during a press conference call on Friday. “There will be a lot of heat, and … a lot of light.”
Meanwhile, special counsel Robert Mueller’s ongoing investigation into the Trump campaign and Russian election interference looms over pretty much everything.
Democratic lawmakers, including New Jersey Sen. Cory Booker, have argued that Trump’s appointment of a judge who could one day rule on elements of Mueller’s investigation is a massive conflict of interest. And many are expected to turn the hearing into a discussion on the checks that should be placed on the executive office — with the goal of pushing Kavanaugh to define where he stands on such boundaries, given writings he’s published on the subject.
“No one, including the President, is above the law,” wrote Sen. Chris Coons (D-DE) in a recent letter to Kavanaugh. “I am very concerned that your record suggests you may not hold that belief.”
Because of the Senate’s Republican majority, the onus is on Democrats to offer a compelling argument for blocking Kavanaugh via the questions they put forth during this confirmation hearing. If they can effectively build their case, there’s a possible — but exceedingly slim — chance that they can spur enough grassroots activism to convince moderates to oppose his nomination.
Most observers expect Kavanaugh to sail through, however.
Despite this likely outcome, the hearing remains a significant step in Kavanaugh’s confirmation process — and a crucial opening to get to know about his legal perspectives. For some of the 2020 contenders on the Judiciary Committee, this panel also offers something else: a platform they can leverage to further raise their profiles.
Brett Kavanaugh is a solidly conservative judge who could push the Court to the right
In July, Trump nominated Kavanaugh, a DC Circuit Court of Appeals judge, to fill a vacancy left by Supreme Court swing vote Anthony Kennedy. Kavanaugh, who was among a list of 25 judges recommended by the Heritage Foundation and the Federalist Society, is seen as having solid conservative bona fides.
As Vox’s Dylan Matthews writes, Kavanaugh boasts a résumé that any young Republican aspiring to ascend to the high court would dream of:
He went to Yale and Yale Law (every current justice either attended that school or Harvard Law); he clerked for two federal appellate judges, including the well-known Alex Kozinski; worked in the solicitor general’s office in the George H.W. Bush administration; and then clerked for Anthony Kennedy on the Supreme Court. Since 2006, he has sat on the DC Circuit, which also produced current justices John Roberts, Clarence Thomas, and Ruth Bader Ginsburg.
Due to an uncanny ability to involve himself in a series of high-profile cases, Kavanaugh has also been dubbed the “Forrest Gump of Republican politics.”
The investigation into Bill Clinton and his affair with intern Monica Lewinsky was among the earliest cases that put Kavanaugh on the map. In the early ’90s, he worked alongside independent counsel Kenneth Starr to review the Whitewater real estate investment made by Bill and Hillary Clinton, which evolved into a probe of the Lewinsky affair. In the wake of that review, Kavanaugh became one of the chief authors of the Starr Report, a write-up that chronicled the affair in graphic detail. He was also an integral member of the team that investigated the suicide of Deputy White House counsel Vince Foster.
Kavanaugh cropped up once more as a member of the legal team that helped hold up President George W. Bush’s electoral win in his race against former Vice President Al Gore in 2000. That same year, Kavanaugh had worked pro bono to keep Elián González, a young Cuban boy who was ultimately sent back to Cuba to live with his father, from being deported.
The nominee’s uniquely political background has emerged as a major flashpoint. Kavanaugh worked not only as White House counsel from 2001 to 2003 during the George W. Bush administration but also as staff secretary between 2003 and 2006. Republican lawmakers have repeatedly refused Democratic demands to request documents from his time in the latter position and argued that he served as no more than a glorified paper pusher.
In fact, the staff secretary job included oversight of internal White House communications and substantive involvement in the development of policy, per the Associated Press:
As staff secretary, Kavanaugh was the person who controlled the flow of documents to and from the president, including ensuring relevant people weighed in and channeling the president’s questions and comments on that material to the right people. He was also a key part of the president’s speechwriting process, helped put together legislation and worked on drafting and revising executive orders, he has said. He also traveled with the president, at points sitting in on meetings between the president and foreign leaders.
The hearing is likely to home in on Kavanaugh’s views about abortion, health care, and executive power
Kavanaugh’s records on abortion rights and health care aren’t exactly clear-cut, but Democrats argue that his vetting by groups like the Federalist Society and the Heritage Foundation should be obvious indicators of his views on both issues. Additionally, they point to a campaign promise Donald Trump famously made in 2016: At the time, he said he would only appoint judges who he believed would overturn Roe. “I am putting pro-life justices on the court,” he said.
Kavanaugh’s past opinions offer some hints of his possible stance on both subjects. In a 2017 DC Circuit case, the judge dissented regarding a decision that granted an undocumented teen the ability to leave federal custody to obtain an abortion, but his disagreement focused more on the timing of the procedure than her right to access it. Many have also called out a 2017 speech he gave praising former Chief Justice William Rehnquist’s dissent in Roe as more indicative of his true feelings on abortion rights.
Getting more clarity around his position will likely be a major focal point during the confirmation hearing — and if his recent meeting with Sen. Susan Collins (R-ME) is any indication, he seems like he’ll frame Roe as “settled law” much in the way Justices John Roberts and Neil Gorsuch did during their confirmation hearings.
Despite expressing this stance, however, Roberts has since dissented in Whole Woman’s Health v. Hellerstedt, a case that struck down onerous Texas regulations that impeded a woman’s ability to obtain an abortion. Both also recently sided against a California law that required anti-abortion crisis pregnancy centers in California to inform their patients of possible alternatives. Vox’s Anna North has more on decoding the vague language Kavanaugh could use to obscure his position during the hearing.
When it comes to the Affordable Care Act, Kavanaugh’s record is also open to some interpretation. He dissented in a 2011 case that involved a challenge to the health care law but didn’t target its constitutionality head-on — a position that actually irritated conservatives. For many, his argument in that case was even seen as laying the foundation for the logic that Roberts used to save the law in the 2012 National Federation of Independent Business v. Sebelius Supreme Court case — a detail that further confuses how he would rule on the matter.
And then there are Kavanaugh’s views on executive power. As Vox’s Andrew Prokop has reported, Kavanaugh has espoused some controversial opinions about the executive office — suggesting that the president should not be subject to indictment or criminal prosecution until after Congress has impeached him, some of which were outlined in a 2009 Minnesota Law Review article.
“I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office,” Kavanaugh wrote. “We should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.” Kavanaugh also noted that the “indictment and trial of a sitting President” would “cripple the federal government.”
These writings have fueled growing concerns about whether he would provide an effective check on the executive office, given the timing of his appointment and the ongoing special counsel investigation into the Trump campaign. “There’s no doubt Kavanaugh has a more robust view of executive power than Justice Kennedy,” Jonathan Turley, a law professor at George Washington University, told Vox’s Jen Kirby. “His natural default position is likely to Article II of the Constitution. He has expressed empathy for presidents facing investigations during their term of office.”
For more on the nominee, check out Vox’s full explainer.
What should we expect to see during the hearing?
In Gorsuch’s confirmation hearing last year, Republican lawmakers sought to establish Gorsuch’s independence from the executive office, while emphasizing his stellar credentials for the job. It’s likely they will take a similar tack in order to give Kavanaugh a boost. Democrats, meanwhile, are expected to spar with Kavanaugh about a range of topics including his opposition to assault weapon bans and his questioning of the Consumer Financial Protection Bureau’s leadership structure.
The hearing itself is going to be quite the marathon. The panel will kick off on Tuesday, September 4, and is expected to continue through Friday. Senators on the committee will hear from Kavanaugh and more than 20 other witnesses who will weigh in on his nomination.
Day one will include introductions from a trio of Kavanaugh supporters, opening statements from all 21 lawmakers on the Judiciary Committee, and Kavanaugh’s own remarks, per the Hill. Questioning of Kavanaugh is slated to start on Wednesday, which is set to be a very long day. Each senator on the committee will have 30 minutes for questions that day, and another 20 minutes on Thursday. Capping off the week, 28 witnesses, including several who will speak to the limits of the executive office such as Richard Nixon’s White House counsel, are scheduled to testify on Friday.
In addition to a continued emphasis on abortion rights and health care, Democrats intend to make Kavanaugh’s views on the presidency and corporate power among the banner lines of questioning they’ll pursue. (He’s sided with corporate interests and endeavored to limit independent agency powers on several cases addressing everything from net neutrality to environmental protection.)
Among the specific cases that are expected to come up: Texas v. Azar, which challenges the constitutionality of the preexisting protections offered by the ACA; Planned Parenthood v. Casey, which reaffirmed Roe in 1992; Morrison v. Olson, which established the constitutionality of an independent counsel; and PHH v. CFPB, a case Kavanaugh ruled on that deemed the leadership structure of the consumer protection agency unconstitutional.
Democrats are also expected to highlight two other major points of tension. There are alleged inconsistencies between testimony Kavanaugh gave during his 2006 confirmation hearing and other documentation concerning his work, and lawmakers will call on him to explain these discrepancies. Additionally, some Democrats are due to question his position on sexual misconduct allegations that have been levied against his former mentor Alex Kozinski.
Sens. Patrick Leahy (D-VT) and Dick Durbin (D-IL) have suggested that Kavanaugh may have misled lawmakers during his 2006 confirmation when he testified that he was not involved in how the Bush administration developed policy around the detention of enemy combatants. News reports later said he was. As Slate’s Dahlia Lithwick reports, several Democrats also intend to ask Kavanaugh about Kozinski — and gauge his knowledge of allegations of sexual misconduct against the retired judge.
Kavanaugh won’t be the only one in the limelight: This hearing also offers a big platform for potential 2020 hopefuls looking to make their mark. Some of the much-discussed presidential possibles, including Sens. Kamala Harris, Cory Booker, and Amy Klobuchar, are members of the committee. There are also a number of interesting Republican lawmakers on the panel such as Sens. Jeff Flake, Ben Sasse, and Lindsey Graham.
What happens next?
After the whirlwind hearing, the Judiciary Committee will vote on Kavanaugh’s nomination before it is considered by the full Senate. The panel will decide whether to recommend the nominee be confirmed, rejected, or given no recommendation. Senate Judiciary Committee staff have told reporters they plan to do two weeks of markups following the hearing, after which a committee vote will be scheduled.
Senate Majority Leader Mitch McConnell has previously said he would prefer to hold a final vote in September, ahead of the start of the high court’s fall session on October 1. A spokesperson from his office says that’s still the plan.
That timing gives lawmakers a few weeks in between the hearing and the final vote, though it’s unclear whether delays throughout the confirmation process mean that a vote will actually take place a bit closer to the midterms.
A simple majority of 51 votes is all that is needed to confirm Kavanaugh to the Supreme Court, and Vice President Mike Pence can cast the tie-breaking vote.
Remember, the Senate can no longer filibuster to try to stop Supreme Court nominees, which used to require a cloture vote of 60 senators. Senate Democrats changed the rules on filibustering lower court and cabinet nominees in 2013, a move that appeared to backfire on them after McConnell further capitalized on this change during Gorsuch’s nomination.
What’s at stake?
In the near term, Democratic activists are looking for Kavanaugh’s performance during the hearing to fire up the grassroots protesters and further mobilize them to oppose the nominee. As this thinking goes, if enough protesters call their Congress members and take to the streets, it’s possible that external pressure could influence lawmakers like Sens. Collins and Lisa Murkowski, who responded to constituent pressure as they weighed their votes on the Obamacare repeal.
Kavanaugh’s testimony could also provide a revealing glimpse of how he would approach a number of controversial issues. Collins has said she wouldn’t support someone who is hostile to Roe, for example, though she recently appeared reassured by Kavanaugh’s statements on precedent.
Depending on when a replacement is named for the late Sen. John McCain, and if Democrats remain united — something that’s by no means guaranteed — they would only need to sway one or two Republicans in order to effectively block Kavanaugh’s nomination. Vulnerable red-state Democrats like Joe Manchin, Heidi Heitkamp, and Joe Donnelly — all of whom voted in favor of Justice Neil Gorsuch’s confirmation last year — are among the senators who might cross party lines again.
If Kavanaugh does make it through the confirmation fight, he would be the pivotal fifth vote that makes up a conservative majority on the bench. With that majority, the conservative justices may not roll back landmark decisions like Roe wholesale, but there’s a high expectation that they will make an effort to chip away at them via pending cases. Across a series of issues including voting rights and worker protections, Kavanaugh’s confirmation is expected to reshape the Court for a generation.
Author: Li Zhou