Brett M. Kavanaugh, President Trump’s Supreme Court nominee, is a well-regarded judge with strongly conservative views on presidential power, gun rights and environmental protection. He will almost surely tip the court to the right on abortion, affirmative action and religion.
But the most important fact as Kavanaugh goes before the Senate Judiciary Committee on Tuesday is a number: It is made up of 11 Republicans and 10 Democrats.
This week’s four-day hearing promises to be contentious at times when disgruntled Democrats press the nominee to answer their questions, and dry and dull at other times when Republicans offer praise and lob him softballs. Tuesday’s hearing will feature only opening statements from senators and Kavanaugh, with questioning — and the real fireworks — to begin Wednesday.
But barring a major surprise, it will end with him winning approval on a straight party-line vote. His nomination will then move to the Senate floor, where Republicans hold a 51-49 edge.
“I think the handwriting is on the wall. I think he will be confirmed pretty handily” and probably by the end of September, said Sen. John Cornyn (R-Texas), who sits on the Judiciary Committee and is the majority whip.
Veteran Sen. Orrin G. Hatch (R-Utah), who is retiring at the end of this year, said he expects to play defense for Kavanaugh, and to “rehabilitate or to help him if he needs it. I know the man. He’s a very good choice.”
The partisan divide is sharp and clear in the Judiciary Committee. Since Trump took office last year, the White House and the committee have worked in tandem to swiftly approve conservative nominees for the courts, including Justice Neil M. Gorsuch and 26 new appellate judges. While a few nominees opted to withdraw after encountering criticism, none has been blocked by the committee, despite the slim GOP margin.
But Democrats are determined to put up a fight over Kavanaugh, believing his conservative views would not be popular if they were widely understood.
“I’m going to be asking about his view of privacy rights, women’s healthcare and healthcare generally, whether the president is immune from the legal process if he is subpoenaed by a grand jury, whether the president is above the law,” Sen. Richard Blumenthal (D-Conn.) said. “The audience is the American people and our colleagues, and the two are closely related, because the American people need to know what’s at stake and the impacts on their everyday lives.”
Sen. Dianne Feinstein (D-Calif.) is expected to pose questions on abortion and the fate of the Roe vs. Wade abortion ruling.
Trump promised to appoint justices who would vote to overturn the right to abortion, and this fall, Kavanaugh and Gorsuch could join a court where three conservatives have already voted to cut back on or repeal the abortion right. And a direct challenge to Roe vs. Wade could come to the court within a year since several Republican-controlled states have recently adopted laws that, if upheld, would all but end legal abortions.
Still, Kavanaugh is not likely to reveal his views on abortion or the Roe decision. In the past, nominees steered around the question by saying they agree the Constitution protects a “right to privacy,” but then refusing to say whether this privacy right extends to abortion. Two senators who met with Kavanaugh in mid-August came away with quite different understandings of his views.
Sen. Susan Collins (R-Maine), a moderate who supports abortion rights, said she had an “excellent” meeting with Kavanaugh in which he described the Roe decision as “settled law.” She said she was reassured and signaled she is likely to vote to confirm him.
Later the same day, Senate Minority Leader Charles E. Schumer (D-N.Y.) said he was troubled because Kavanaugh in a meeting with him refused to say whether the abortion ruling was “correctly decided” or whether a woman had a right to end an early pregnancy.
“I asked Judge Kavanaugh about certain restrictions on a woman’s right to choose, such as banning abortion after four weeks or six weeks,” he told reporters afterward. “He would not say that any of those constituted an undue burden on a woman’s right. Even four weeks, he would not say it was an undue burden.”
The issue of presidential power is likely to be the focus of many questions, both because of Kavanaugh’s views and President Trump’s legal troubles. In speeches and court opinions, Kavanaugh has espoused versions of the “unitary executive” theory, which is sometimes said to mean the president has the constitutional power to hire, fire and control all the “officers” of the U.S. government. If so, special counsel Robert S. Mueller III could be fired directly by the president, and the status of many of the so-called independent agencies could be in doubt.
Kavanaugh also wrote law review articles in 1998 and 2009 that questioned whether a president can be investigated while in office, except by Congress under its impeachment power. In the weeks ahead, Mueller could subpoena Trump and insist he answer questions under oath. If the president refused — or fired Mueller — the Supreme Court could be called upon to decide whether the Constitution shields the president from a criminal subpoena or from a special counsel’s investigation.
In 1974, the high court unanimously rejected President Nixon’s claims of executive privilege and ruled he must turn over the Watergate tapes to the special prosecutor. But the justices have not ruled directly on whether the president can be compelled, like any citizen, to honor a grand jury’s order to answer questions.
“This hearing could be a national seminar on whether the president is above the law. And the timing couldn’t be better,” said Michael Waldman, president of the Brennan Center for Justice at New York University School of Law.
Kavanaugh may be pressed to explain the stark contrast between his call for shielding presidents from investigations and his role in the aggressive investigation of President Clinton during the 1990s. He was a leading player, working under independent counsel Kenneth Starr, in pushing for the impeachment of Clinton for lying about his affair with a White House intern.
Much depends on whether the senators can ask questions and demand answers. Most nominees are cautious and say as little as possible.
Sen. John Kennedy (R-La.) has tripped up nominees in the past by pressing them on legal questions, and he says he will press Kavanaugh as well.
“I take it very seriously. These jobs are for life,” he said. The nominee has “to answer my questions straight up and convince me that he is qualified to be appointed to the most powerful, unelected position in the most powerful country in all human history.”
But Kennedy acknowledged the hearings are politically charged, and said the Democrats may try to use it to score points against the nominee. “I’m hoping for a reasoned discussion,” he said, “but it could as well turn into a junior high school cafeteria food fight. I’m hoping it doesn’t, but it could.”
Times staff writers Jennifer Haberkorn and Sarah D. Wire contributed to this report.