Supreme Court nominee Judge Brett Kavanaugh’s confirmation hearing last week was highly contentious from the very start. The first day is generally limited to opening statements by the members of the Senate Judiciary Committee, formal introductions of the nominee, and the nominee’s own opening statement. But as CBS reports, day one began with Democratic senators’ calls for motions to adjourn the hearing due to the lack of disclosure of documents relating to Kavanaugh’s time in the White House and the abrupt release of more than 40,000 additional documents the night before. (For background on the documents controversy, see this ISCOTUSnow post.) Democratic Senator Kamala Harris stated “the American people deserve better than this,” in reference to the amount of records missing, and questioned Kavanaugh’s “loyalty” to the president and the Constitution. Fellow Democrat Cory Booker had the same concerns, and brought up the likely political ideological shift of the Court if Kavanaugh is confirmed. Republican Senator Ben Sasse stated the Democrats concern is “deranged,” and that they engaged in “90 minutes of theatrics” in the “circus” of a hearing. Fellow Republican Senator Ted Cruz remarked that the documents are “irrelevant to what Kavanaugh thinks, believes or has said.”
Day two was more focused on Judge Kavanaugh himself, as he faced questions from the senators about his judicial philosophy and his approach to various legal issues. According to the New York Times, Judge Kavanaugh declined to answer whether he believed Roe v. Wade was decided correctly, although he described Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the “core holding” of Roe, as “precedent on precedent” regarding abortions, entitled to judicial respect. However, in a past email, then-White House Staff Secretary Kavanaugh said, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” (Judge Kavanaugh’s comment was responding to an op-ed drafted internally at the White House that was ultimately edited. The email’s original opening line stated, “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”) As the New York Times’ Charlie Savage and Sheryl Gay Stolberg pointed out, this email became publicly known only after Judge Kavanaugh said that Roe is “settled as precedent of the Supreme Court.”
Kavanaugh stated he would not answer “hypothetical questions” such as if President Trump could pardon himself or pardon associates who may testify against him. He also stated that after watching President Bush respond to 9/11 and its aftermath, he changed his mind regarding aggressive investigations of the President, such as the Ken Starr investigation of President Clinton’s affair with Monica Lewinsky, in which he participated. He concluded that investigations are too distracting and he argued that Congress should consider enacting a statute protecting sitting presidents from active investigations. The Washington Post reports Kavanaugh declined to commit to recuse himself from cases involving investigations into President Trump’s conduct.
On a more personal note, as NPR reports, Kavanaugh also mentioned his history of hiring a large number of women law clerks, and remarked his mother, also a judge, showed him “the importance of women’s equality.”
Day three continued the questioning by the committee, and The New York Times reports Kavanaugh refused to state whether he believed Obergefell,the landmark case establishing a right to same-sex marriage was correctly decided. In response to questioning regarding his view of special counsel, Kavanaugh responded he is “not afraid” to “invalidate executive power when it violates the law.”
Notably, on the last day of the hearing, former Nixon era White House counsel John Dean testified and stated Kavanaugh’s confirmation would lead to the “most presidential-powers friendly” Supreme Court, according to The Washington Post. The day was filled with testimony by witnesses for and against the nominee. The American Bar Association remarked on their unanimous rating of “well qualified” of Kavanaugh, and one of their officials stated he is “absolutely” a mainstream jurist. His previous clerks praised the judge as a mentor and teacher, and former U.S. Solicitor General Theodore Olson stated he has heard nothing but the “highest praise” for his as a “human being, a lawyer, and a judge.” Congressional Black Caucus chairman Cedrick Richmond called Kavanaugh a “grave legal danger,” and other opposing witnesses, including a survivor of the Parkland, Florida shootings and a child with a serious medical conditions voiced concern with Kavanaugh’s positions on key rights affecting them, such a gun laws and access to healthcare.
Michael Karnish of the Washington Post reports that Vermont Democratic Senator Patrick J. Leahy, a minority member of the Senate Judiciary Committee, said on Friday—the day after the final day of the confirmation hearing—that Judge Kavanaugh likely knew about stolen Democratic emails from a shared server by GOP staffers. However Kavanaugh, denied recalling anything about it, and denied knowing what Leahy was referring to. However, In 2004 and 2006, when Kavanaugh sat for nomination hearings to his appointment to the federal bench, Leahy questioned Kavanaugh about his knowledge of the emails. Kavanaugh only disclosed some knowledge of their content and insisted he knew about the ordeal when it was released to the public Miranda viewed the emails on the server. However, newly disclosed emails may show Kavanaugh knew more than he originally alluded.
ISCOTUS Fellows Matthew Webber and Michael Halpin, Chicago-Kent Class of 2019 and 2020 respectively, contributed to this post, which was overseen by ISCOTUS co-director and Chicago-Kent faculty member Carolyn Shapiro.