10 things to watch for in the Brett Kavanaugh confirmation hearing Wednesday

Supreme Court nominee Judge Brett Kavanaugh walks to a meeting with Sen. Amy Klobuchar (D-Minn.) on Capitol Hill
(Jose Luis Magana / Associated Press)

The Senate confirmation hearings for Judge Brett Kavanaugh started off contentiously Tuesday and will probably continue to gain steam Wednesday, with the first bout of public questioning of President Trump’s Supreme Court pick.

Democrats have at least two days — and 50 minutes each — to ask Kavanaugh about abortion, gun rights, presidential power, healthcare or whatever else they choose. Republicans will have the same time to draw out Kavanaugh’s credentials and strengths.

Here’s a look at what we’ll be watching for Wednesday:

Will Democrats renew their procedural protest and try to suspend the proceeding?

In an unprecedented move, Democratic members of the Senate Judiciary Committee began Tuesday’s proceeding by trying to shut it down. For 80 minutes, Democrats refused to let committee Chairman Charles E. Grassley of Iowa get through his opening remarks, repeatedly interrupting with motions to suspend the hearing, postpone it or vote on the matter.


As soon as Grassley tried to resume, another Democratic senator interrupted. It remains to be seen whether Democrats have something else planned to delay the hearing. They have options but may decide not to exercise them.

How hard will Democrats press Kavanaugh on the limits of presidential power?

Democrats are likely to press Kavanaugh about his broad views of presidential immunity.

Kavanaugh has argued that special investigations are a mistake and may be unconstitutional. Though he was a key player in the independent investigation of President Clinton, Kavanaugh has since said a sitting president should be temporarily immune from any criminal probe while in office and that even investigating or questioning a president should not be permitted, unless done by Congress.

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Democrats showed during their opening statements Tuesday they are going after this point hard. With the ongoing investigation by special counsel Robert S. Mueller III into Russian interference in the 2016 election and possible collusion with the Trump campaign, there is a chance the Supreme Court may be called upon to decide whether the president has to answer Mueller’s questions, or whether Trump can shut down the investigation or fire the special counsel.

“The elephant in the room … is going to be the president’s implication as an unindicted co-conspirator” in the guilty plea of former Trump attorney Michael Cohen, said Sen. Richard Blumenthal (D-Conn.).


Some Senate Democrats said Kavanaugh softened his stance on presidential immunity in closed-door meetings, but the White House has disputed that, leaving senators confused.

“He has reversed his position and then modified it last week to the point where I’m not sure where he stands,” Sen. Richard J. Durbin (D-Ill.) said.

Durbin said he isn’t expecting Kavanaugh to answer his questions satisfactorily. “That’s the first rule that they give to any nominee before the Senate Judiciary Committee.… Say nothing and say it as often as possible,” Durbin said.

Will Democrats keep pushing for documents?

Democrats have focused a lot of time and energy on a procedural fight over millions of pages of archived documents related to Kavanaugh’s years in the George W. Bush White House, and it dominated most of Tuesday’s opening statements. Republicans requested only his papers from his time with the White House legal counsel’s office, saying that Kavanaugh’s years as staff secretary, which included some of the most controversial moments of the Bush presidency, weren’t informative to how he’ll act as a judge and that it would take months to go through those records.

Democrats argue that the GOP shouldn’t limit what documents senators get to review in making a lifelong appointment to the country’s highest court.

Do senators push Kavanaugh on discrepancies from his circuit court nomination hearings?

Kavanaugh testified under oath in 2006 that he had no knowledge of President Bush’s controversial terrorism detainee policy until it became public, but in 2007 news outlets reported that Kavanaugh was in the room as the policy was being crafted, weighing in on how the Supreme Court would rule if the policy was brought before the court.


Durbin and Sen. Patrick J. Leahy (D-Vt.) have alleged that Kavanaugh misled the Senate to get on the circuit court.

Can Kavanaugh convince wavering Republicans with his answer on Roe vs. Wade?

Most legal analysts say that if confirmed Kavanaugh would be the fifth vote on the Supreme Court to restrict abortion rights and possibly overturn Roe. They point to a speech he gave last year in which Kavanaugh praised former Chief Justice William H. Rehnquist for dissenting in Roe vs. Wade and for rejecting the notion of “a wall of separation between church and state.”

Although Kavanaugh privately told Sen. Susan Collins (R-Maine) that he agrees that Roe is “settled law,” the Supreme Court has the ability to change precedent — and it has multiple times in the last few years.

Judicial nominees are particularly practiced at not answering a tinderbox question like whether they will protect access to abortion, and Democrats are likely to be frustrated. Kavanaugh managed to avoid answering the question in his 2006 circuit court confirmation hearing.

How much will healthcare be the focus of Democrats questioning?

Democrats said they plan to press Kavanaugh on the Affordable Care Act, particularly on whether he would uphold the ban on insurers refusing to cover people with preexisting medical conditions, though that issue didn’t come up much Tuesday.

Kavanaugh has been quietly telling Democrats that he is skeptical of some of the legal claims being asserted in the latest GOP-led effort to overturn the Affordable Care Act. But Democrats say they are convinced Kavanaugh would be a vote against Obamacare if another case came before the justices.


How will he answer questions about sexual harassment on the court?

Kavanaugh clerked in the early 1990s for 9th Circuit Judge Alex Kozinski, who resigned in late 2017 amid more than a dozen complaints of inappropriate sexual behavior. Kozinski introduced Kavanaugh at his 2006 circuit court confirmation hearing.

Sen. Mazie Hirono (D-Hawaii), who has consistently asked public officials about how they’ve handled sexual harassment in their workplaces, said she will expand her questions to include Kavanaugh’s relationship with Kozinski.

How will Republicans push back on Democrats’ questions?

Republicans on the committee who have known Kavanaugh or his family for decades say their job is to rebut Democrats and let Kavanaugh define himself. GOP lawmakers are widely expected to support the nominee, and emphasized Tuesday that Democrats had nothing negative to say about Kavanaugh’s qualifications.

Sen. Orrin Hatch (R-Utah) said Democrats will have a hard time getting any criticism of Kavanaugh to stick, calling him a “human incarnation of a vanilla ice cream cone.” Hatch said he’ll use his questions to “rehabilitate or to help him if he needs it.”

How does Kavanaugh respond to the pressure?

The witness table is familiar terrain for Kavanaugh. First nominated to the District of Columbia Circuit Court by Bush in 2003, contentious hearings and charges that his record was too partisan stalled his confirmation for three years. He went through a second confirmation hearing in 2006 before being approved.

At those hearings Kavanaugh successfully avoided making any real news, or answering most of Democrats’ questions — much to their chagrin. He’s quick to a disarming smile and reluctant to comment on other judges or their opinions.


He’s been preparing to testify for weeks. Don’t expect any real reaction when the inevitable protesters get up and shout, as they did Tuesday, or when senators criticize him to his face.

How will California Sens. Dianne Feinstein and Kamala Harris approach Kavanaugh?

The widely watched hearings are potentially a big moment for the most and least senior Democrats on the Senate Judiciary Committee.

Feinstein, the highest-ranking Democrat on the committee, has the opportunity to set the tone for Democrats. She’s not known as a combative questioner and has been close-lipped about what she intends to ask Kavanaugh. She’s attended more Supreme Court confirmation hearings than anyone on the committee except for Leahy, and she tends to keep a cool head while speaking with witnesses.

This is the first Supreme Court nominee the Senate has considered since Harris joined the Judiciary Committee. She is the most junior member of the committee and will ask her questions last.

Harris, a former prosecutor who is widely expected to run for president in 2020, has become popular for her rapid fire questioning of Trump Cabinet officials. A major televised hearing is a good chance for her to stand out from the pack, especially considering Sen. Cory Booker — another potential 2020 nominee — sits next to her, but Grassley may not be willing to let her badger a Supreme Court nominee the way she has people like Atty. Gen. Jeff Sessions.

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