What to Expect at Brett Kavanaugh’s Confirmation Hearing

By Rachel Alexander Published on September 4, 2018

The Senate confirmation hearing for President Trump’s Supreme Court nominee Brett Kavanaugh gets underway today. The Senate Judiciary Committee will grill Kavanaugh about his prior opinions and dissents.

There is plenty to chew on. Kavanaugh spent over 12 years on the U.S. Court of Appeals for the District of Columbia Circuit. He authored more than 300 opinions and dissents.

Democrats will try to get Kavanaugh to reveal how he will vote on future decisions. They will attempt to trip him up any which way they can.

Since Kavanaugh would swing the court to the right, Democrats are dreading his confirmation. He won’t have it as easy as Neil Gorsuch, who merely replaced a justice on the right, Antonin Scalia. Kavanaugh is replacing Anthony Kennedy, who has been the swing vote on the highest court for years.

Questions About His Prior Employment

Democrats are expected to ask questions about Kavanaugh’s work history prior to serving on the circuit court. He served as President George W. Bush’s deputy White House counsel and staff secretary. Kavanaugh was also part of the investigation into President Bill Clinton, which led to Clinton’s impeachment.

He has written that presidents should be immune from criminal probes and civil suits while in office. He once expressed doubt about the 1974 Supreme Court decision that forced President Richard Nixon to turn over secret White House tape recordings. This, critics say, signals how Kavanaugh will decide if a case reaches SCOTUS involving Trump. (Assuming Kavanaugh doesn’t recuse himself.) With the Mueller probe continuing to seek evidence to charge the President, the question is not academic. Democrats will likely object to him on this basis.

Republicans released far more pages on Kavanaugh than on prior SCOTUS nominees.

There are too many pages of papers related to his former employment to release them all to senators. Still, Republicans released far more pages on Kavanaugh than on prior SCOTUS nominees. They have released the documents they find relevant, 440,000 pages for senators and almost 300,000 to the public. The Trump administration is withholding 100,000 pages on the basis of presidential immunity. Democrats believe Republicans are deliberately withholding documents.

Democrats are expected to question Kavanaugh’s involvement as White House counsel in the George W. Bush policies regarding detention of combatants and torture. Kavanaugh said during his 2006 confirmation hearing that he was “not involved.” Democrats like Dick Durbin (D-Ill.) suggest Kavanaugh lied. 

Previous Opinions and Dissents

Democrats are also expected to grill Kavanaugh about his views on abortion. Trump said he would appoint pro-life justices. Last year, Kavanaugh dissented from his circuit court’s ruling that an illegal immigrant teenager in custody was entitled to an abortion. In a speech last year, he praised former Justice William Rehnquist’s dissent in Roe v. Wade. However, during his confirmation hearing to the circuit court in 2006, he said he would “follow Roe v. Wade faithfully and fully. … It’s been reaffirmed many times.” He told Sen. Susan Collins (R-Maine) that he considered the 1973 decision “settled law.”

Senators are likely to bring up two more topics during the hearing. Based on previous decisions, he seems supportive of the Second Amendment. He dissented from an opinion upholding Obamacare, but only on procedural grounds, so it’s not clear what to read into this.

Kavanaugh has been much more careful in his career about sounding partisan on legal issues than Robert Bork, President Ronald Reagan’s failed Supreme Court nominee in 1987.

Kavanaugh has been much more careful in his career about sounding partisan on legal issues than Robert Bork, President Ronald Reagan’s failed Supreme Court nominee in 1987. He will be harder to trip up during questioning.

Crunching the Numbers

The GOP controls the Senate 50-49. The Democrats will not be able to block his confirmation unless at least one Republican defects. After Arizona Governor Doug Ducey names a replacement for John McCain, the GOP will increase their lead to 51-49. Plus, three vulnerable moderate Democrats are facing tough re-election fights in November. Joe Donnelly (Ind.), Heidi Heitkamp (N.D.) and Joe Manchin (W.Va.) all voted for Gorsuch. However, Democrats may be able to turn moderate Republicans Susan Collins of Maine and Lisa Murkowski of Alaska. And if Democrats take over the Senate during the midterm elections, they could hold up his confirmation if it’s still pending.

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The Senate confirmed Kavanaugh to the circuit court in 2006 by a vote of 57 to 36. The Supreme Court reconvenes on October 1, so Trump and the Republicans would like him confirmed before then.


Follow Rachel on Twitter at Rach_IC

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