This morning, President Donald Trump’s second nominee to the Supreme Court sat down in front of the Senate Judiciary Committee for the next step of his confirmation process.
Judge Brett Kavanaugh, a judge on the Court of Appeals for D.C., was appointed by President Trump in July 2018 to fill the seat on the Supreme Court currently held by Justice Anthony Kennedy, the longest-serving of the current justices. Kennedy was seen by all Supreme Court observers as the swing vote on the Court, providing decisive votes on cases related to healthcare, same-sex marriage, and a woman’s right to choose.
Judge Kavanaugh’s career is rich in conservative ideology, which many worry will throw off the delicate balance of the Supreme Court that Kennedy has held in check for more than thirty years. One of Kavanaugh’s first positions out of law school was a fellowship with then-Solicitor General Ken Starr, who led the legal case in the impeachment trial against President Bill Clinton. Kavanaugh was the chief author of Starr’s report on Clinton’s conduct with Monica Lewinsky. Kavanaugh went on to serve as the Staff Secretary in the White House of George W. Bush, where he had great control over which papers and files went into and out of the Oval Office. It was Bush who nominated Kavanaugh to the Court of Appeals for D.C. in 2003, but Kavanaugh’s nomination was caught up in a slew of delayed judicial nominations during the Bush Administration and he was not confirmed for the Court until 2006, when he received a 57-36 vote with 4 affirmative votes from Democrats, only one of whom is currently serving in the Senate (Senator Tom Carper of Delaware).
Today’s confirmation hearings did not feature Judge Kavanaugh answering any questions from the Judiciary Committee, as first days rarely do. As committee chairman Chuck Grassley (R-IA) began the process of initiating the hearings, a slew of high-profile Democratic senators attempted to delay the proceedings. The main concern of Senate Democrats, as Senate Minority Leader Dick Durbin (D-IL) explained during his allocated time, is that there is a 35-month gap in Judge Kavanaugh’s documents provided to the Judiciary Committee. The gap covers most of Judge Kavanaugh’s time as White House Staff Secretary under George W. Bush, which Judge Kavanaugh has said was a critically formative time in his career.
Senators Kamala Harris (D-CA), Cory Booker (D-NJ), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI) all made motions to delay the hearing to give Senators more time to read more than 40,000 pages of documents that were released less than 12 hours before Senator Grassley delivered his opening statement. Many of the Democratic Senators who tried to the delay the hearing are considered to be frontrunners for the 2020 election.
Many of the early opening statements from Republican members of the Committee were drowned out by protestors, with no fewer than ten protestors standing up at separate points during the morning. Protesters shouted towards the senators about their fears of Judge Kavanaugh’s conflicting comments on whether or not a sitting president can face legal proceedings (he wrote that he believed President Clinton could when he worked for Starr’s investigation but wrote that President Bush could not when he was on the Court of Appeals), the fate of the right of a woman to choose whether or not to have an abortion, access to health care, and the sanctity of same-sex marriage. These concerns were echoed by Democratic members of the Judiciary Committee, with Senator Harris telling Kavanaugh that she was not sure that a Justice Kavanaugh would treat everyone equally.
Republicans on the Judiciary Committee largely praised Judge Kavanaugh’s career and directed their attacks to the Democratic side of the aisle. Senator Ted Cruz (R-TX) lambasted Democrats for asking for more documents to be released, arguing that more pages from Judge Kavanaugh have been released than any other Supreme Court nominee. It is true that more pages of Judge Kavanaugh’s records have been released. Still, those released do leave large swaths of his career uncovered and more than 40,000, have been released in the last 24-hours.
Senator Lindsey Graham (R-SC) used his opening statement to argue that opposition to Judge Kavanaugh’s nomination is rooted in anger over the outcome of the 2016 Presidential election, when Secretary of State Hillary Clinton lost to President Trump. Senator Cruz echoed Senator Graham’s comments.
The only Republican on the Judiciary Committee who questioned Judge Kavanaugh’s record was Senator Jeff Flake (R-AZ). Senator Flake warned Judge Kavanaugh to expect hard questions in the coming days about his positions on executive privilege and the rights of the president. He cited President Trump’s tweet from Monday about Attorney General Jeff Sessions as a cause for concern over the White House. Senator Flake is retiring at the end of the current Senate term.
Senator Ben Sasse (R-NE), a common critic of the president, countered Senator Flake and argued that the only question that needed to be asked of Judge Kavanaugh was if he had the character and temperament to serve as a Supreme Court Justice.
Just before 5:00 PM, Judge Kavanaugh began to deliver his opening statement. He played off of the comments of Senator Sasse, speaking about his friends and his family. He highlighted that he coaches his daughters’ basketball team and that he volunteers in a food pantry on the weekends. He also talked about his long record of attendance at various games of the Baltimore Orioles and Washington Redskins with his father. Judge Kavanaugh did not address any potential judicial opinions or political issues during his opening statement, which is to be expected.
Democrats appear to be limited in their ability to do anything other than delay Judge Kavanaugh’s confirmation. They do not have the numbers to reject the nomination on their own after Senate Majority Leader Mitch McConnell (R-KY) lowered the vote threshold for Supreme Court nominees last year during the confirmation of Justice Neil Gorsuch. There are only two Republican senators who are considered to be possible to vote against Judge Kavanaugh, Senator Lisa Murkowski (R-AK) and Senator Susan Collins (R-ME). Both Senators have met with Judge Kavanaugh privately and seem less likely to vote against him after doing so, having received private assurances from Judge Kavanaugh that he will protect Roe v. Wade (1973).
Many observers, however, are not confident that Judge Kavanaugh will protect Roe, Planned Parenthood v. Casey (1992), or Obergefell v. Hodges (2015) if the issues come up during his time on the Supreme Court, which they likely will. CNN legal commentator Jeffrey Toobin predicted that within five years of Judge Kavanaugh potentially joining the Supreme Court, more than 1/3rd of the country could have banned or severely restricted access to abortions and reproductive health services.
Senator Grassley has said that the hearings may continue through the weekend in order to expedite Judge Kavanaugh’s nomination.
Image from VOA News.