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.

During the first day of the hearing for Judge Brett Kavanaugh’s nomination for the Supreme Court starts on Tuesday, September 4, 2018. On the first day, the senators on the Senate Judiciary Committee will make opening statements, but there won’t be questions for the nominee. But these opening statements are likely to be unusually contentious. Democrats are angry with the White House and the Republicans over the release — or lack of release — of documents from Judge Kavanaugh’s career in government. This post summarizes some of that controversy.

In the 1990’s, Kavanaugh worked for Ken Starr when he was investigating President Bill Clinton. Later, he spent time working in George W. Bush’s White House. Senate Democrats demanded to see all documents from this time. Almost three weeks after Kavanaugh’s nomination was announced, Senator Grassley, Republican chair of the Senate Judiciary Committee, asked Patrick Mordente, Director of the George W. Bush Presidential Library and Museum, for emails and textual records relating to Judge Kavanaugh’s time serving the White House, and documents relating to Judge Kavanaugh’s nomination to the U.S. Court of Appeals for the D.C. Circuit. At about the same time, Senator Dianne Feinstein, ranking Democrat on the Committee, wrote to the National Archives and Records Administration (NARA), expressing concern that NARA had not yet started reviewing Kavanaugh records for release, thus deviating from past Supreme Court nominee document review practices.

In early August, NARA announced that it would be unable to complete its review of the relevant records until late October. Senate Democrats file Freedom of Information Act (FOIA) requests to get Kavanaugh records from NARA, Department of Justice, Department of Homeland Security, and the CIA. Senator Grassley nonetheless set the hearing to begin this week. In the meantime, Bill Burck, personal lawyer for President Bush, reviewed and approved the release of some documents from the Bush Library. Burck was Kavanaugh’s deputy in the White House and now represents several current and former White House staffers — Don McGahn, Reince Priebus, and Steve Bannon — in relation to the Mueller probe. After Burke completed his review, on the Friday before the hearing begins, the Trump administration announced that it was asserting executive privilege over 100,000 pages of documents that the Bush Library had cleared for release.

Democrats and their allies are comparing the unreleased documents for Kavanaugh with what they say was the comprehensive release of documents from Justice Elena Kagan’s time in the Clinton White House during her confirmation hearings. Democrats argue that the same level of cooperation should be shown today. Republicans, on the other hand, argue that some of the documents requested are irrelevant to Brett Kavanaugh’s judicial philosophy, and that his opinions during his time as a judge on the D.C. Circuit, along with other publicly available documents, should be sufficient, and that the documents produced are comparable to those produced for Kagan’s nomination.

In addition, there are some specific areas of dispute. During Kavanaugh’s confirmation hearings for his appointment to the D.C. Court of Appeals in 2006, he stated that was not involved with the legal issues surrounding the use of enhanced interrogation techniques on high value detainees. A newly released email from November 19, 2011 has recently become the focus of those who doubt the veracity of this claim. Senator Patrick Leahy, for example, a longtime Democratic member of the Committee, explains that he needs “Kavanaugh’s FULL record because it will reveal if he lied to me under oath in 2006—whether he is fit to serve on our highest court.”

Democratic Senators are not the only ones pushing for more documents regarding his time in the White House. On August 13th, Lambda Legal announced that it had also filed FOIA requests for documents and communications, specifically from Kavanaugh’s time in the White House from 2003 to 2006. (Lambda Legal is a LGBTQ civil rights legal organization.) They filed requests with eight different departments and agencies citing, for example, the interest that both Lambda Legal and the public have in knowing what role Kavanaugh played in President Bush’s efforts in advocating for a constitutional amendment that would have banned same-sex marriage. The announcement, with links to each individual FOIA request, can be found here.

The hearing is poised to go forward without all the documents sought by Democrats and their allies. But with FOIA requests outstanding, at least some of those documents may eventually be made public, albeit perhaps after the hearing — and possibly even after the vote on Kavanaugh’s confirmation. What he says during the hearing, and how it compares to the documentary record, may be a controversy that does not end soon.

ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, contributed to this post.

Less than two months after President Trump announced his nomination, Judge Brett Kavanaugh will begin his confirmation hearing to sit on the Supreme Court on September 4.  The Senate Judiciary Committee has a dedicated webpage about the hearing here. On the first day, we can expect to hear opening statements by committee members, as well as from the nominee. Questioning will likely begin on the following day. On Friday, third-party witnesses will testify both in support of and in opposition to the nomination. (One of the more unusual witnesses in opposition will be John Dean, who served as White House Counsel to President Richard Nixon.) Because the Republican-controlled Senate eliminated the filibuster during the confirmation process for Justice Neil Gorsuch, Kavanaugh needs only 50 votes to be confirmed. Republicans hold 50 seats, although once the Arizona governor appoints a replacement for recently deceased Senator John McCain, the GOP will have 51 seats.

As Adam Liptak of the New York Times writes, Kavanaugh’s nomination has the potential to change the ideological direction of the Supreme Court. Not surprisingly, the nomination quickly drew supporters and opponents from both sides of the political spectrum.The National Rifle Association has been extremely vocal about their support for Judge Kavanaugh, having launched a seven-figure campaign calling for his confirmation (despite recent claims of “deep financial trouble”). Several pro-choice groups have come together with a campaign called “Rise up for Roe,” touring several cities to highlight the threat that Kavanaugh poses to abortion rights and Roe v. Wade. Some legal scholars have criticized his views on separation of powers as being one-sided, and religious groups have mused about how a Kavanaugh confirmation might lead the Court to “become more accommodating to conservative religious interests.” Coverage of the debates on the issues that underlie these movements is discussed in more detail below.

Separation of Powers and Individual Liberty

At the July 9 event when the President introduced Judge Kavanaugh as his nominee, Kavanaugh was quick to express his views on liberty, stating “I teach the Constitution’s separation of powers protects individual liberty” (click here to watch his full remarks.) ISCOTUS co-director Carolyn Shapiro has criticized his views as one-sided, solely concerned about how government regulations impede liberty, and ignoring the idea that regulations can actually enhance liberty. Her article compares his anti-regulatory views in PHH Corp. v. CFPB, which addressed the Consumer Financial Protection Bureau, with his willingness to uphold restrictions on abortion in Garza v. Hargan, and it explains how his views on the regulation-liberty relationship could also have implications for the Mueller investigation

On the other side, Peter Wallison in the Wall Street Journal praised Judge Kavanaugh’s recognition that regulations must come from democratically accountable entities, and looked forward to a Supreme Court that will cut back on deference to administrative agencies. Finally, some note that such reduced deference would apply to regulatory and deregulatory efforts alike, so might not lead to as much deregulation as some hope or fear.

Roe v. Wade

Abortion will be at the center of much of the hearing, although Kavanaugh is unlikely to provide a straightforward answer about his views on Roe v. Wade or the abortion cases decided since then.  In Garza, although Judge Kavanaugh didn’t explicitly deny the teenager’s right to obtain an abortion, he appeared sympathetic to the government’s position that it could discourage, and perhaps even prevent, her from having an abortion. He has also publicly stated his admiration for then-Justice William Rehnquist’s dissent in Roe, as this Vox article explains, and at Slate, Dahlia Lithwick and Jed Shugerman argue that Kavanaugh is clearly anti-choice. Indeed, President Trump himself promised to appoint justices who would “automatically” overturn Roe. Anti-abortion groups greeted Kavanaugh’s nomination with excitement.

But much of the discussion at the hearing will focus not on abortion itself but rather on stare decisis, the principle of standing by things decided. Stare decisis is a central principle in American law, but it is not absolute. In fact, this last Term, the Supreme Court overruled several longstanding precedents. In 1992, on the other hand, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court declined to overrule Roe on grounds of stare decisis. And even without overruling Roe outright, the Supreme Court could approve increasingly rigid restrictions on abortion.

Law and Religion

Judge Kavanaugh has been described as a warrior for religious liberty, with many praising what they see as his consistent support for and dedication to protecting religious liberty. That support, though, has others concerned about the collateral consequences of this for other individual rights, given (among other reasons) his support for the Court’s decision in Hobby Lobby. In Hobby Lobby, the Court held that a corporation has constitutional religious rights, and thus could deny employees healthcare coverage for birth control to which they would be otherwise entitled because of the owners’ religious objections. Click here for a more detailed discussion of specific cases that give some clue as to how he might rule on religious freedom issues in the future.

The Second Amendment, Guns, and the NRA

Judge Kavanaugh’s position on the Second Amendment has been described as so radically conservative that he is “outside the mainstream” — a term no doubt being used in an attempt to rally opposition to his confirmation similar to how Democrats used it to block Robert Bork’s confirmation 30 years ago. Some fear that gun safety laws could be struck down, such as the ban on semi-automatic weapons in California, given his dissent in Heller v. District of Columbia. In that dissent, he strongly opposed the decision of the D.C. Circuit Court to uphold the District of Columbia’s ban on most semi-automatic rifles and accompanying requirement for all guns in D.C. to be registered. On the other end of the spectrum, his views are being celebrated by many, and as described above, the NRA is strongly supporting his nomination.

What Else?

Of course, the coverage has not been limited solely to the issues discussed above. Senate Democrats have filed Freedom of Information Act requests for documents related to Judge Kavanaugh’s time working for George W. Bush. There will be many questions about his view of presidential power. ISCOTUSnow will continue to post summaries and links to thoughtful coverage, so check back often!

ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent class of 2020, contributed to this post, which was overseen by ISCOTUS co-director and Chicago-Kent faculty member Carolyn Shapiro.