WASHINGTON — Supreme Court nominee Brett Kavanaugh faces a crucial test this week as the Senate Judiciary Committee begins its hearings on his nomination, where Democrats will grill him on his judicial philosophy, conservative politics and long public career.
The stakes are high for Kavanaugh. “They say with hearings you won’t secure confirmation at a hearing, but you can lose it,” said Tom Jipping, a former aide to Sen. Orrin Hatch (R-Utah) and now a senior legal fellow at the conservative Heritage Foundation.
While Democrats go on the attack, Republicans will play defense, helping Kavanaugh in correcting the record or clearing up fuzzy answers, Jipping said. But the Republicans also will ask about the role of the courts and specific issues of interest to them.
But when Kavanaugh arrives Wednesday for two long days of questioning, here are five areas that are expected to produce the sharpest exchanges.
Abortion will be a key issue in the hearings, as both sides ask: Is Kavanaugh the “anti-abortion” nominee that President Donald Trump promised to appoint?
Kavanaugh’s responses to abortion-related questions could determine if he gets crucial yes votes from Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, who both back abortion rights — and could shore up conservative anti-abortion support.
Kavanaugh said in his 2006 hearing to be a judge that he would respect the precedent of Roe v. Wade. And in July he told Collins he agrees with Chief Justice John G. Roberts' 2005 hearing statement that Roe is settled law.
But critics said he hasn’t answered whether he agrees the court correctly decided Roe, and they worry he could become part of a 5-4 Supreme Court majority to limit or overturn Roe.
Kavanaugh will be asked about:
- His praise last year for Justice William Rehnquist’s dissent in Roe for setting “an important precedent, limiting the court’s role in the realm of social policy.”
- His dissent in a D.C. Circuit Court ruling allowing a 17-year-old immigrant living in the nation illegally and in U.S. custody to get an abortion — he said it created a new right of “abortion on demand.”
Trump’s attacks on special counsel Robert Mueller pushed Kavanaugh’s views on a president’s powers into a top issue for Democrats — who argue Trump might have picked him as a get-out-of-jail card should a legal fight from Mueller’s Russia probe reach the high court.
After working on the independent counsel investigation of President Bill Clinton, Kavanaugh’s views have evolved.
Since then, Kavanaugh has promoted the unitary executive theory of a strong president with broad powers, said the president shouldn’t be distracted by investigations and suggested that Congress should bar indictments of sitting presidents.
On a different front, liberals criticize and conservatives laud Kavanaugh’s rulings and dissents that often strengthen the president’s control over independent federal agencies or even in some cases finds them to be unconstitutional incursions on presidential power.
Kavanaugh will be asked about:
- Saying two years ago he would like to overturn Morrison v. Olson, a decision that upheld the independent counsel statute that says the counsel cannot be fired except for good cause.
- Commenting in a roundtable discussion two decades ago that the Supreme Court ruling that forced President Richard Nixon to turn over his tapes might have been wrongly decided because it “took away the power of the president to control information in the executive branch.”
Affordable Care Act
Trump also put Kavanaugh in the hot seat for questions about his dissents on cases involving the Affordable Care Act after promising on the campaign trail that “my judicial appointments will do the right thing” on finding Obamacare unconstitutional.
Democrats and liberals have made that threat to the 2010 health law, and especially its ban on denial of insurance for pre-existing conditions, a cornerstone of their opposition to Kavanaugh, giving cover to red-state Democrats up for re-election to vote against the nomination.
Republicans and conservatives say he has not actually issued an opinion on the merits of challenges to the constitutionality of Obamacare.
But last year in a speech to the Heritage Foundation, Kavanaugh said that had the five conservative justices followed his approach to making decisions they would have decided “that the individual mandate, best read, could not be sustained as constitutional.”
Kavanaugh will be asked about:
- His dissent in Seven-Sky v. Holder, which upheld Obamacare’s individual mandate, because the court did not yet have jurisdiction to hear the case, though he also called the mandate “a significant expansion” and suggested the president might not enforce it as unconstitutional.
- His dissent in Priests for Life v. U.S. Department of Health and Human Services, saying the court should hear a lawsuit arguing the opt-out form to Obamacare’s required contraception coverage was a burden to employers opposing birth control for religious reasons.
All Supreme Court nominees get questions about whether they will be activist judges, or act like an umpire simply calling balls and strikes. And Democrats likely will press Kavanaugh how much he will follow precedents, or whether he will overturn past decisions.
When Trump introduced him as his nominee, Kavanaugh said, "A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent."
But Kavanaugh will get a grilling by Democrats, who say that his judicial rulings — and several dissents — reflect his conservative Republican political background in cases on reproductive rights, gun control, net neutrality, climate change, money in politics, and civil, consumer and worker rights.
He will be asked about:
- His dissent in Heller v. District of Columbia in which he said the district’s ban on semiautomatic rifles was not constitutional because the district allowed semiautomatic handguns, a position two other Republican-appointed judges rejected.
- His dissent in PHH Corp. v. Consumer Financial Protection Bureau, in which he said the structure of the bureau, an independent federal agency created by Congress, impinged on presidential authority.
Kavanaugh’s mountainous paper trail has led to a battle between Democrats demanding they must have access to all his documents before the hearings, and Senate Republicans running the confirmation process who said lawmakers already have enough paper to judge Kavanaugh.
Republicans say that a team representing President George W. Bush screened and released 430,000 emails and other documents from Kavanaugh’s two years as an associate counsel and 22,000 pages from his tenure working for independent counsel Ken Starr — and none of the records from Kavanaugh’s three years as Bush’s staff secretary.
Republicans told Democrats they could learn all about Kavanaugh’s judicial philosophy by reading his 300 or so written opinions.
But Democrats accuse Republicans of concealing Kavanaugh’s records and question the legitimacy of the confirmation process. And Democrats are demanding records about whatever involvement Kavanaugh had in debates about torture policy and detainees.
They say Republicans are making only 4 percent of those documents public and that they refuse to wait until the National Archives said it can finish processing 900,000 materials at the end of October.
Kavanaugh will be asked:
- If he misled Democrats in 2006 when he said he had no role in the torture debate as he served Bush as an assistant and his staff secretary.
- If there are any records that he and Republicans do not want to become public, and why.