Brett Kavanaugh's Supreme Court confirmation hearings are upon us.
Kavanaugh, who President Trump nominated to fill the seat of retiring Justice Anthony Kennedy, goes before the Senate Judiciary Committee at 9:30 a.m. ET today for what is expected to be three to four days of hearings.
Court nominations are always contentious, but this one may be more so than most. Kennedy was regarded as a "swing" justice who usually voted with the conservative majority, but whose departures from orthodoxy were extremely notable — he authored opinions, for example that struck down laws against sodomy and eventually made gay marriage the law of the land. Kavanaugh, meanwhile, is expected to be an orthodox conservative who will throw the balance of the court firmly to the right for the next generation.
What do we know Brett Kavanaugh? What can we expect from these hearings? Read on.
What is Kavanaugh's background?
Kavanaugh, 53, is a Yale Law School graduate who now serves as a judge on the prestigious Circuit Court of Appeals in Washington, D.C. He has spent the bulk of his career working in and around the Republican precincts of the federal government — he clerked for Kennedy, was on Kenneth Starr's special counsel team whose investigation led to Bill Clinton's impeachment, and served as an associate in the White House Counsel's office during the early years of George W. Bush's presidency. He has been an appellate judge since 2006.
There's only so much you can tell from Kavanaugh's record as a judge. After all, appellate judges make legal decisions with Supreme Court precedents as one of their guides. Supreme Court justices make, and sometimes break, those precedents. The jobs are different.
Still, Kavanaugh's decisions as an appellate judge have met with the approval of the Supreme Court's conservative majority: They adopted his positions in 13 cases that advanced to their attention, and reversed him just once, in an environmental case.
"He took almost uniformly conservative positions," The New York Times reported in July. "When a closely divided Supreme Court agreed with him, its conservatives tended to be in the majority. But the justices also favored his views in several cases by lopsided majorities or unanimously."
Why did President Trump nominate him?
Well, for one thing, he was on the list. When Trump was running for president in 2016 and conservatives still viewed him with some suspicion, the man who would be president unveiled a list of possible Supreme Court candidates to prove that his picks would meet conservatives' approval. Kavanaugh actually wasn't on the initial list — instead, he appeared on an updated list, revealed at a later meeting of The Federalist Society, a group devoted to stocking the judiciary with their ideological kin. The society reportedly vetted the list of Trump's potential nominees.
Another factor in Kavanaugh's nomination? Justice Kennedy reportedly went to bat for his former clerk.
So GOP lawmakers really like him?
Indeed they do. One thing Republicans worry about is that a Supreme Court nominee will "grow" in the job to occasionally favor liberal positions. GOP-appointed Justices Sandra Day O'Connor, David Souter, and Kennedy all bucked the conservative line to greater or lesser degrees, much to the consternation of movement conservatives. Kavanaugh's involvement in conservative politics — in The Federalist Society and in government — make him much more of a known quantity: He once called the late Justice Antonin Scalia "a hero and a role model." No surprises are expected.
"As social conservatives know from bitter experience, a judicial record is the best — really, the only — accurate predictor of a prospective justice's philosophy on the issues that matter most to us," Sarah Pitlyk, special counsel for the conservative Thomas More Society, wrote at National Review in July. "On the vital issues of protecting religious liberty and enforcing restrictions on abortion, no court-of-appeals judge in the nation has a stronger, more consistent record than Judge Brett Kavanaugh."
Do they have any reservations?
Some conservatives have been concerned about Kavanaugh's dissent in a case challenging ObamaCare's contraceptives mandate. While Kavanaugh sided with the challengers, he suggested Supreme Court precedent allows that "government generally has a compelling interest in facilitating access to contraception for women employees." Conservative critics have not agreed with that assessment.
But here, their reservations are muted. National Review's David French wrote that while "I'm simply not sure that Kavanaugh is the grand slam" he wanted in a nominee, Kavanaugh is still "excellent."
What do Democrats think?
They're still grumbling that Barack Obama's final Supreme Court nomination, Merrick Garland, was never granted a hearing by the GOP-held Senate in 2016. Kavanaugh is Trump's second nominee, after Neil Gorsuch, but the anger over the Garland nomination means that any GOP nominee, Kavanaugh included, will have a tough time securing Democratic votes.
There are any number of ideological reasons Democrats might oppose Kavanaugh, but the biggest seems to be this: He might be the vote that overturns the Roe v. Wade ruling that made abortion legal across America.
Is Roe v. Wade really in danger of falling?
It depends who you ask. Kavanaugh reportedly assured moderate Republican Sen. Susan Collins that Roe is "settled law," but that doesn't mean that abortion would be safe from the Supreme Court's scrutiny. Liberal critics say that Kavanaugh could hollow out Roe, leaving it technically intact while making it a practical impossibility for many women to obtain an abortion. Notably, Kavanaugh was the dissenting vote in an appellate court ruling that allowed an undocumented immigrant teenager to obtain an abortion while she was in federal custody.
And as noted earlier, the Supreme Court makes precedent. It can also break it. "Let's be clear: This is not as simple as Judge Kavanaugh saying that Roe is settled law," Senate Minority Leader Chuck Schumer said after Kavanaugh met Collins. "Everything the Supreme Court decides is settled law until it unsettles it. Saying a case is settled law is not the same thing as saying a case was correctly decided."
Expect Democrats on the Judiciary Committee to push Kavanaugh on Roe this week. And expect Kavanaugh to say very little of substance that might tip his hand one way or another.
What else will Democrats push him on?
Anybody with a record of government service as long as Kavanaugh's has left a long paper trail. The National Archives says the full list of Kavanaugh's records won't be available until October, long after the hearings that start on Tuesday are expected to be complete. Democrats will likely make this an issue.
Republicans counter that 430,000 pages of documents have already been made available. That's a record. The previous high was about 180,000 pages of material released during the Gorsuch nomination.
Democrats are also likely to focus on Kavanaugh's role in the Clinton impeachment. He was a member of Starr's team, and it's now clear that Kavanaugh was gung-ho for Clinton's punishment. "It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear — piece by painful piece," Kavanaugh wrote in a memo at the time. "Aren't we failing to fulfill our duty to the American people if we willingly 'conspire' with the president in an effort to conceal the true nature of his acts?"
Democrats may also press Kavanaugh on Special Counsel Robert Mueller's Russia investigation. If confirmed, Kavanaugh may well be on a Supreme Court that has to rule on issues pertaining to Mueller's probe. That makes Kavanaugh's post-Monicagate conversion on the issue of presidential immunity both seemingly convenient for the particular Republican president who nominated him, and very relevant.
After Clinton left the presidency, Kavanaugh eventually came around to the idea that sitting presidents should be provided with temporary deferrals of civil suits and criminal prosecutions. In a 2009 law review article, he called his earlier pursuit of Clinton a "mistake.”
"The president's job is difficult enough as is," Kavanaugh wrote. "And the country loses when the president's focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution."
Can Democrats actually do anything to stop Kavanaugh from joining the court?
Not on their own. But Republicans have a very narrow path to Kavanaugh's approval. With John McCain's death, the GOP holds just a 50-49 majority in the Senate. If Democrats hold together — never a certainty — and one Republican flips, the nomination could be sunk.
But even with that razor-thin margin, defeat seems unlikely. Majority Leader Mitch McConnell will ride herd on his caucus, and one of the most likely pro-choice defectors — Collins — has already signaled her support of the nominee. That leaves Alaska Sen. Lisa Murkowski as the lone possible holdout. For now, she's keeping her opinion to herself.
"What I am seeking is a Supreme Court justice with the character, the intelligence, and the balance to impartially apply the law to the facts of the case," Murkowski said after meeting Kavanaugh. "Today's meeting represents an important step in my vetting process. That process, however, has not concluded."