Published 2:29 p.m. UTC Sep 4, 2018
WASHINGTON – For eight weeks since President Donald Trump nominated him for the swing seat on the Supreme Court, Brett Kavanaugh's judicial record and legal philosophy has gotten lost amid disputes over his partisan past and withheld documents.
But when the Senate Judiciary Committee holds four days of hearings this week, those controversies probably will take a back seat to issues affecting millions of Americans: Abortion. Guns. Health care. And, inevitably, the president himself.
Kavanaugh, 53, will be questioned for 17 hours or more about the conservative views he espoused in more than 300 opinions and dissents over 12 years on the U.S. Court of Appeals for the District of Columbia Circuit – a traditional steppingstone to the Supreme Court.
For half that time, Republicans who have fawned over Kavanaugh since his nomination July 9 will call attention to his pedigree and character: Yale University and Yale Law School, three prestigious federal court clerkships, nearly a decade of public service and a reputation for open-mindedness and collegiality.
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For the other half, Democrats whose opposition is all but assured will highlight the Washington native's rulings and writings on controversial issues and seek assurances on how he would rule in future cases – questions Kavanaugh will parry without making any promises.
“There will be sparks at this hearing. Sparks will fly," said Sen. Richard Blumenthal, D-Conn. "And there will be a lot of heat.”
There already has been a lot of money spent on both sides of the Kavanaugh nomination, nearly all of it in the few states from Maine to Alaska where senators' votes are in play. Conservative groups including the National Rifle Association have spent more than $4 million on television ads alone, outpacing liberal groups concerned about abortion rights, health care and the financing of election campaigns.
Supreme Court confirmation battles are always controversial, but only in recent years have they become so partisan and the Senate votes razor-thin. The last two justices to leave the court – Antonin Scalia, who died in 2016, and Anthony Kennedy, whose retirement in July created the current vacancy – were confirmed unanimously. The vote in 1991 on Clarence Thomas was 52-48, and the last four justices to be confirmed received 54 to 68 votes.
Justice Neil Gorsuch's nomination last year was controversial because Senate Republicans refused in 2016 to consider President Barack Obama's nominee, Merrick Garland. Gorsuch replaced Scalia, a like-minded conservative, 17 months ago.
Not since Justice Samuel Alito replaced Justice Sandra Day O'Connor in 2006 has the ideological balance of power on the court been threatened. Kennedy was the perennial swing vote on social issues ranging from abortion to same-sex marriage. Kavanaugh is likely to align more reliably with the other four conservative justices.
To that initial hurdle, Trump's choice of Kavanaugh from a list of 25 potential nominees added several others. Kavanaugh's career choices have included a stint investigating President Bill Clinton, which led to his impeachment, and working for President George W. Bush as deputy White House counsel and staff secretary.
The paper trail from those jobs proved to be too voluminous for the Senate to pile through before the high court's 2018 term opens in October, or even before the midterm elections in November. So Republicans have released only those documents they consider most relevant – about 440,000 pages for senators to see, and fewer than 300,000 publicly.
That's far more than for any previous Supreme Court nominee. But Democrats said millions of pages have been withheld. Friday, the Trump administration said it would withhold more than 100,000 pages on the basis of presidential privilege.
“We were not able to get a lot of documents we felt we were entitled to," said Sen. Dianne Feinstein of California, the top Democrat on the committee. "We’re laboring under this disadvantage.”
Abortion, guns, health care
Trump made clear during the 2016 presidential campaign that he wanted to promote judges who were "pro-life" and who would defend Americans' gun rights under the Second Amendment. He has sought to overturn Obama's signature legislative achievement, the Affordable Care Act, through the courts if necessary.
On those issues and more, Kavanaugh passed the test.
“It’s not often that a president states full-out before the nomination is even made that he’s looking for someone who will overturn the ACA and Roe v Wade," which legalized abortion nationwide, said Nan Aron, president of the liberal Alliance for Justice. "We have to take Donald Trump and the White House and (Senate Republican leader) Mitch McConnell at their word.”
•On abortion, Kavanaugh dissented from his court's ruling last year that allowed an undocumented teenager in federal custody to get an abortion. He cited Supreme Court precedents under which he said "the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion."
During his confirmation hearing for the circuit court in 2006, Kavanaugh said he would "follow Roe v. Wade faithfully and fully. ... It's been reaffirmed many times." Two weeks ago, he told Sen. Susan Collins, R-Maine, an abortion rights supporter whose support is crucial, that he considered the 1973 decision "settled law."
But in a speech last year, Kavanaugh heaped praise on the late Chief Justice William Rehnquist, citing among other things Rehnquist's dissent in Roe. Rehnquist, he said, "stated that under the court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people."
•On gun control, Kavanaugh dissented in 2011 from an appeals court ruling that upheld a District of Columbia ban on semiautomatic rifles. Under the Supreme Court's precedent in District of Columbia v. Heller in 2008 – with Kennedy in the majority – Kavanaugh said the ban was unconstitutional.
As someone who grew up in the District of Columbia when it was plagued by guns, drugs and gang violence, Kavanaugh indicated he was conflicted on a policy basis, but "the law and the Constitution ... compel the result.”
•On health care, Kavanaugh dissented in 2011 from an appeals court ruling upholding the Affordable Care Act but only on procedural grounds. He said the law's mandate that individuals purchase health insurance or pay a tax penalty to the Internal Revenue Service could not be challenged before any payment was made.
"History and precedent counsel caution before reaching out to decide difficult constitutional questions too quickly, especially when the underlying issues are of lasting significance," he wrote. "After all, what appears to be obviously correct now can look quite different just a few years down the road."
Though those issues may resonate most with average Americans, Democrats are likely to delve even more deeply into Kavanaugh's views of presidential power. He has written that Congress should immunize presidents from criminal investigations and personal civil suits while in office.
The question picked up steam last month when Michael Cohen, the president's personal lawyer and "fixer," pleaded guilty to violations of campaign finance law and implicated the president in payoffs during the 2016 campaign to a former Playboy model and a porn star. Since then, Democrats have noted the Supreme Court could be called upon to decide a case involving Trump – with Kavanaugh holding a key vote.
'Trying to score points'
Those who have gotten to know Kavanaugh since his days as a 28-year-old Kennedy law clerk insist he's nothing like the demon Democrats have painted. They recall him as a generous mentor, a promoter of women and minorities, and a workaholic whose opinions and dissents often went through dozens of drafts.
“The word I would use to describe him is independent,” said Justin Walker, a University of Louisville law professor who was in the first class Kavanaugh taught at Harvard Law School and later clerked for him at the appeals court. "He has a thoughtful approach to the law that views the judge’s role as a limited one.”
Akhil Reed Amar, a liberal law professor at Yale Law School, cited Kavanaugh's "combination of smarts, constitutional knowledge and openness – and that’s the triple crown.”
On a personal level, Democrats are unlikely to score any points against a regular guy who coaches his daughters' Catholic Youth Organization basketball teams and briefly went into debt buying Washington Nationals baseball tickets.
"The Democrats know this is lost," said Curt Levey, president of the conservative Committee for Justice. "They’re just trying to score points with the base and score points against Trump.”
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