Published 2:31 p.m. UTC Sep 4, 2018
Tuesday is the day that senators get their first chance to publicly question the man who could change the direction of the Supreme Court for decades.
The Judiciary Committee’s hearings on federal appeals Judge Brett Kavanaugh’s nomination, which might seem an inside-Washington moment, matter to millions of Americans whose lives are touched by the nation’s highest court. Last term alone, the court handed down rulings on religious freedom, President Donald Trump’s travel ban, online shopping, compulsory union dues and cellphone privacy.
Kavanaugh, 53, would replace retired Justice Anthony Kennedy, a conservative who became a pivotal swing vote on issues ranging from civil rights to abortion, sometimes siding with the court’s four liberals.
In the quest for ideological justices, recent presidents have expected nominees to be anything but unpredictable. And Trump has gone so far as to pledge that he would nominate justices who would help overturn Roe v. Wade, the landmark 1973 abortion-rights decision. Kavanaugh, if confirmed, could also face historic decisions on presidential power and whether the president who nominated him can be subpoenaed or indicted.
Delving into Kavanaugh’s legal thinking is essential, though in recent memory, nominees have wiggled away from such questions by taking the “judicial fifth.” They refuse to answer on the grounds that it would violate the judges’ code of conduct. True, judges must not speak about a “matter pending or impending” before the court. Even so, that leaves lots of room to discuss their prior cases, legal philosophy and views of Supreme Court rulings.
Here are a few of the key questions that senators should ask as they weigh whether Kavanaugh merits confirmation to the lifetime position:
►Judge Kavanaugh, you spent much of your professional life in the thick of some of the hottest partisan battles of recent decades. You played a lead role in writing the independent counsel report that led to President Bill Clinton’s impeachment. You were part of the legal team that paved the way for George W. Bush to become president and served in the Bush White House. How can the public be assured that you will be an independent voice on the court, not the justice from the GOP?
►As a deputy to independent counsel Ken Starr, you were part of an investigation that used harsh threats of federal prosecution against Monica Lewinsky, then 24, to persuade her to reveal the most intimate details of her affair with President Bill Clinton. The Starr report, made public by Congress, laid out those lurid details. What, if anything, do you regret about your involvement in that inquiry and the way it was handled?
►In a 2009 law review article, you suggested that Congress should consider passing a law exempting presidents from facing personal lawsuits, prosecutions or even criminal investigations while in office. With a special counsel report looming on Trump, do you believe that the Constitution already protects a president from such inquiries? And would it be right to shield a president even from an investigation of potential wrongdoing?
►In a 2016 law review article, citing Chief Justice John Roberts’ description of a judge as an “umpire,” you said being a good umpire requires lower court judges to adhere to Supreme Court decisions, but that the Supreme Court has “some flexibility, as it must” in adhering to its own past decisions. When do justices have to follow Supreme Court precedents, and when can they stray from them?
►Last October, you dissented from a federal appeals court decision allowing an undocumented teenager in federal custody to get an abortion. Under high court precedents, you wrote, “the government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” How do these assertions affect your view of the Roe v. Wade decision? And what is your view of later related decisions, asserting that the government may not place an “undue burden” on a woman’s right to abortion?
►In 2011, you dissented from a ruling upholding a District of Columbia ban on owning semi-automatic rifles. You wrote that constitutionally, there is “no meaningful … distinction” between owning a semi-automatic rifle and a semi-automatic handgun, citing the 2008 landmark ruling that upheld owning a handgun. Justice Antonin Scalia, who wrote that opinion, left room for restrictions on other weapons. Can you explain why you believe that the two firearms are not constitutionally different?
This is just a fraction of what senators ought to explore with Kavanaugh. Senators often waste valuable time making speeches, rather than questioning nominees. Skip the speeches this time. Senators should ask probing questions to find out whether the nominee falls within the broad judicial mainstream and has a healthy respect for court precedent. And Kavanaugh should answer them.
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