POLITICS
09/03/2018 08:00 am ET

Democrats’ Last Chance At Stopping Supreme Court Nominee Brett Kavanaugh

It's a long shot, but the stakes couldn’t be higher.

WASHINGTON ― Supreme Court nominee Brett Kavanaugh faces his biggest test this week: a panel of skeptical Democrats who plan on grilling the appellate court judge about his views on some of the biggest issues facing the country.

With a growing group of presidential associates under criminal investigation and the fate of health care and abortion rights on the line for millions of Americans, the stakes could not be higher as his confirmation hearing begins on Tuesday.

If the Senate confirms Kavanaugh, Republicans will cement a reliably conservative majority on the court and tilt the balance of power further to the right for decades. The 53-year-old conservative judge is seeking to replace retired Justice Anthony Kennedy, who sometimes voted with liberals on the court on issues like abortion, gay rights and affirmative action. 

In coming years, Kavanaugh could be asked to rule on cases curtailing Roe v. Wade, the landmark reproductive rights decision, on President Barack Obama’s signature health care law and its protections for patients with pre-existing conditions, and on the government’s ability to regulate a wide array of issues like gun control, civil rights, labor disputes and environmental laws.

More immediately, however, if Kavanaugh does emerge from the hearing unscathed and is confirmed, as is expected, he may play a role in helping to decide the fate of Donald Trump and the growing investigation of his associates that threatens to derail his presidency.

Democrats said they plan to use this week’s confirmation hearing to highlight the jurist’s ethical dilemma should special counsel Robert Mueller, who is leading the investigation into Russian interference in the 2016 presidential election, decide to bring any charges that implicate Trump. To help them do so, they’ve invited former White House counsel John Dean, who helped take down former President Richard Nixon, to testify as an outside witness during the hearing. 

Kavanaugh, however, is not expected at the hearing to offer any commitment to recuse himself from any cases involving investigations of Trump, according to ABC News.

U.S. Supreme Court nominee Brett Kavanaugh meets with Sen. Lisa Murkowski (R-Alaska) on Capitol Hill.
Chris Wattie / Reuters
U.S. Supreme Court nominee Brett Kavanaugh meets with Sen. Lisa Murkowski (R-Alaska) on Capitol Hill.

Beyond issues related to the Russia investigation, Democrats plan to question Kavanaugh on three main topics: his expansive views of executive power and whether he believes a sitting president can be indicted; his opinions about Roe v. Wade and abortion rights; and whether he believes Obamacare and its protections for pre-existing conditions are constitutional.

They’ll also press Kavanaugh on his opinions as an appellate judge and the extensive record he has as a Justice Department appointee under former President George W. Bush, a record Republicans are shielding from public view.

Democrats are particularly interested in whether Kavanaugh authored or edited any documents relating to the Bush administration’s torture and warrantless wiretapping programs. The last time he appeared before the Senate Judiciary Committee, in May 2006, Kavanaugh gave Democratic senators some questionable answers on the government’s treatment of detainees. Sen. Patrick Leahy (D-Vt.), the former chairman of the committee who has seen 19 Supreme Court nominations, is expected to ask about post-9/11 issues, including torture.

“There’s just a lot more [material]. He’s said a lot more extreme things,” a Senate Democratic aide told HuffPost last week, when asked how Democrats’ approach to Kavanaugh compared to the one they took with Trump’s first Supreme Court nominee, Neil Gorsuch, who was confirmed last year.

Modern Supreme Court nominees have usually declined to answer questions about issues before the court, arguing it is improper for a judge to give hints about how they might rule in future cases. Gorsuch took the practice to new heights during his confirmation hearing, refusing to answer questions about even landmark cases like Brown v. Board of Education. Kavanaugh will likely do the same when asked about his views on issues like abortion and health care.

“That’s been followed by all the people since [Justice Ruth Bader] Ginsburg. I think that’s a good rule because you can’t tell what’s going to happen 10 years from now,” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) told reporters on Capitol Hill last week, when asked what Kavanaugh needed to do to pass the test in his confirmation hearing.

But Democrats argue that the practice Ginsburg helped set during her confirmation hearing decades ago shouldn’t preclude Kavanaugh from responding to questions about issues that he has written or spoken publicly about in the past. The appellate judge, for example, once argued in a 2009 Minnesota Law Review article that sitting presidents should not be distracted by criminal investigations or questions from prosecutors. He has since tried to soften his stance in meetings with Democratic senators, arguing he did not intend to make a broad constitutional claim about a president’s immunity from investigation.

“I don’t think it’s fair for him to refuse to comment on his own writings and speeches where he chose to insert himself into a debate about the scope of executive power,” Sen. Chris Coons (D-Del.) told reporters last week.

Kavanaugh’s public comments in the past regarding overturning some Supreme Court precedents and his open criticisms of Roe v. Wade are also likely to come up during the hearing this week.

“It’s curious to me how these sitting judges write all these law review articles, give all these speeches, get in great detail about all these issues, and then the minute they appear on Capitol Hill they clam up. They don’t have a word to say about any of these issues because they’ve gotta protect themselves,” added Sen. Dick Durbin (D-Ill.), one of few Senate Democrats who met with Kavanaugh last month.

Still, it’s clear Democrats face an extreme uphill climb in derailing Kavanaugh’s nomination. In addition to convincing key GOP senators like Susan Collins of Maine and Lisa Murkowski of Alaska to oppose the judge, they must win over trio of vulnerable moderate Democrats who are facing tough re-election fights in November: Joe Donnelly (Ind.), Heidi Heitkamp (N.D.) and Joe Manchin (W.Va.). All three supported Gorsuch last year.

“If he does well at the hearing, I believe he’ll get 55 or higher,” Sen. Lindsey Graham (R-S.C.) predicted on “Fox News Sunday” this weekend, referencing the minimum, 50 votes, that would be needed for Kavanaugh’s confirmation.

Republicans have reportedly been drilling Kavanaugh for weeks with “intense” mock hearings at the White House complete with staged protests. Graham and his GOP colleagues Rob Portman of Ohio and Dan Sullivan of Alaska have helped him practice and critique his performance.

“I think there are a handful of Democrats who will vote for Kavanaugh, maybe more,” the South Carolina Republican added in the Fox News interview.

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