Following lengthy days of questioning last week by members of the Senate Judiciary Committee, Judge Brett Kavanaugh’s confirmation to the U.S. Supreme Court appears likely.
President Donald Trump nominated Kavanaugh on July 9 to fill the seat left by the retirement of Justice Anthony Kennedy. Kavanaugh has spent the past 12 years as a judge on the D.C. Circuit Court of Appeals.
He also served as an aide to president George Bush and worked for the Independent Counsel Ken Starr, who ran the investigation that led to president Bill Clinton’s impeachment. Kavanaugh graduated from Yale Law School.
For more than 20 hours, Republican and Democratic senators questioned Kavanaugh on cases and issues such as the affordable care act, presidential powers, reproductive rights, gun rights and voting rights. However, during the questioning, Kavanaugh revealed little about his personal views, and instead relied heavily on answers that adhered strictly to matters of law. Past nominees have largely adhered to the same tactic.
“I really don’t think there have been a lot of surprises so far,” said Alan Chen, a professor at the University of Denver’s Sturm College of Law. “It’s pretty much going according to script: Republicans are asking softballs and Democrats are trying to poke through the veneer and trying to get some real conversations going but haven’t been very successful.”
Here are three takeaways from the hearings last week.
Hearings Have Little Practical Impact
Prior to the seating of Justice Neil Gorsuch on the Supreme Court last year, nominees to the country’s highest court required at least a bit of bipartisan support: 60 votes. But to confirm Gorsuch the senate enacted the so-called nuclear option to demolish the filibuster, meaning supreme court nominees could be confirmed with a simple, 51-vote majority. Gorsuch received 54 votes.
“I would like to think the hearings mean a lot; I think they’re an important exercise in democracy because the senate is supposed to play a major role,” Chen said. “But I think our norms have changed so much over the years.”
He added, “Another way of thinking about it is it has turned into a pretty straight up and down partisan process at this point. Because Republicans control both houses there’s not a whole lot the Democrats can do. At least when there was a filibuster possibility they had to get at least some support from the other side. Now, in theory, you could have zero Democratic senators.”
Sen. Harris: a Deft Questioner
Late at night on the East Coast on Tuesday, Sen. Kamala Harris, the last Democrat to question Kavanaugh for the day, appeared to catch Kavanaugh off guard.
She opened her questioning by asking whether the judge had spoken to a member of the law firm Kasowitz Bensen Torrez — a firm founded by Trump’s personal lawyer Marc Kasowitz — about the investigation being led by Special Counsel Robert Mueller. During the questioning, Kavanaugh did not answer, saying he’d need to see a list of employees at the firm. The following day, the firm released a statement denying the accusation. Harris asked the judge the same question Thursday evening but after some back and forth he eventually answered “no.”
On Wednesday, Harris also questioned Kavanaugh on the matters of presidential powers and reproductive rights. She asked, “Can you think of any laws that give government the power to make decisions about the male body?” Kavanaugh stumbled before answering, “I’m not aware — I’m not — thinking of any right now, senator.”
“I think senator Harris has proved herself to be a tough questioner and somebody who doesn’t let witnesses get away with big statements,” Chen said. “I think she’s proved herself quite adept at serving on the judiciary committee.”
The Question of Gun Control
One of the lasting images of the first day of Kavanaugh’s questioning was that of him declining to shake the outstretched hand of Fred Guttenberg, who lost his daughter in the Parkland shootings.
Chen said another gun-control-related matter caught his attention during the hearings. A few years ago, Kavanaugh dissented in a case that had reached the D.C. Circuit questioning the constitutionality of the Firearms Registration Amendment Act of 2008. In his dissent, Kavanaugh said the District’s ban on semi-automatic assault rifles was unconstitutional because the gun was commonly used and not “unusual.”
In his dissent, Kavanaugh wrote, “There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.”
During the hearing, Kavanaugh defended the dissent by saying, “Semi-automatic rifles are widely possessed in the United States. There are millions and millions and millions. … As a judge, my job was to follow the Second Amendment decision of the Supreme Court, whether I agreed with it or disagreed with it.”
“I think that might strike a chord with some people,” Chen said, “that he might be able to strike down a ban on semi-auto rifles.”
— Chris Outcalt