Confirmation hearings begin for Supreme Court nominee Brett Kavanaugh
WASHINGTON -- Quarreling and confusion marked the Senate hearing Tuesday for Supreme Court nominee Brett Kavanaugh, with politically charged arguments about White House documents and process getting as much attention as the role the conservative judge would likely play in shaping rulings on abortion, executive power and other national issues.
Strong Democratic opposition to President Donald Trump's nominee reflected the political stakes for both parties just two months before congressional elections. The Democrats, including several senators poised for 2020 presidential bids, tried to block the proceedings over Kavanaugh records being withheld by the White House. Republicans in turn accused the Democrats of turning the hearing into a circus. And protesters shouted out frequent and persistent disruptions from the audience.
After hours silently listening to the partisan exchanges, Kavanaugh rose to be sworn in and give opening remarks. He stressed the court's independence at a time when Democrats say he was picked because Trump believes the judge's expansive views of executive power will help the president in investigations.
"Our independent Judiciary is the crown jewel of our constitutional republic," Kavanaugh told the senators. "The Supreme Court is the last line of defense for the separation of powers and the rights and liberties guaranteed by the Constitution."
He said, "The Supreme Court must never, never be viewed as a partisan institution."
The 53-year-old judge choked up when talking about his family, particularly his parents, and drew chuckles from the room in naming all the girls he coaches on his daughter's basketball team.
Democrats raised objections to the nomination from the moment Chairman Chuck Grassley gaveled the Judiciary Committee to order. Several, including Kamala Harris of California, Cory Booker of New Jersey and Amy Klobuchar of Minnesota, all potential presidential contenders, demanded that Republicans delay the hearing. They railed against the unusual vetting process by Republicans that failed to include many documents from three years Kavanaugh worked in the George W. Bush administration, and 100,000 more pages withheld by the Trump White House. Some 42,000 pages were released on the evening before of the hearing.
"We cannot possibly move forward, Mr. Chairman, with this hearing," said Harris at the top of proceedings. Grassley disagreed.
As protesters repeatedly interrupted the session, Republican Sen. Ted Cruz, who is fighting for his own re-election in Texas, apologized to Kavanaugh for the spectacle he said had less to do about the judge's legal record than Trump in the White House.
"It is about politics," said Cruz. "It is about Democratic senators re-litigating the 2016 election."
Republicans' slim 51-49 majority in the Senate was bolstered during the hearing by the announcement from Arizona that Gov. Doug Ducey was appointing Jon Kyl, the former senator, to fill the seat held by the late Sen. John McCain. With majority Republicans appearing united, Democrats appear to have dim prospects of blocking Kavanaugh's confirmation.
As senators spoke, Kavanaugh occasionally sipped water and took notes. He was invited to introduce his parents, wife and children, who sat through much of the outbursts before being escorted out of the room.
Sen. Richard Blumenthal, D-Conn., made several motions to adjourn, saying if the confirmation continued, "this process will be tainted and stained forever."
Grassley denied all requests to postpone, defending the document production as the most open in history. He said the chaotic scene was something he'd "never gone through" in 15 past confirmation hearings.
More than two dozen protesters disrupted the hearing at several points and were removed by police. "This is a mockery and a travesty of justice," shouted one woman. "Cancel Brett Kavanaugh!" Others shouted against the president or to protect abortion access.
Outside the room, women wearing red robes and white bonnets inspired by "The Handmaid's Tale" made their way through the Senate office building.
As patience thinned, Sen. John Cornyn, R-Texas, denounced what he called the "mob rule." Struggling to speak over protesters, Sen. Orrin Hatch, R-Utah, said: "These people are so out of line they shouldn't be in the doggone room."
But Sen. Dick Durbin, D-Ill., told Kavanaugh that the opposition being shown at the hearing reflected the concern many Americans have over Trump's "contempt of the rule of law" and the judge's own expansive views on executive power.
"It's that president who's decided you are his man," Durbin said. "Are people nervous about this ... concerned about this? Of course they are."
The panel's top Democrat, Sen. Dianne Feinstein, described the hearing's "very unique circumstances."
"Not only is the country deeply divided politically, we also find ourselves with a president who faces his own serious problems," she said referring to investigations surrounding Trump. "So it's this backdrop that this nominee comes into."
Democrats appealed to Kavanaugh to intervene by seeking a delay to produce his full record, warning he would not want his nomination to be come with an asterisk or be under a cloud. "Don't you think you owe it to the American people?" asked Sen. Mazie Hirono, D-Hawaii.
But Republican Sen. Ben Sasse of Nebraska told Kavanaugh, "The deranged comments don't actually have anything to do with you."
Kavanaugh declared he would be even-handed in his approach to the law.
"A good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy," Kavanaugh said. "I would always strive to be a team player on the Team of Nine."
The Supreme Court is often thought of as nine separate judges, rather than a team. And on the most contentious cases, the court tends to split into conservative and liberal sides. But justices often say they seek consensus, and they like to focus on how frequently they reach unanimous decisions.
Kavanaugh, 53, has served for the past 12 years on the federal appeals court in Washington, D.C., and conservative record includes a dissenting opinion last year that would have denied immediate access to an abortion for an immigrant teenager in federal custody.
At particular issue for senators are documents from the years Kavanaugh worked in key positions in the Bush White House and a member of independent counsel Kenneth Starr's legal team that investigated President Bill Clinton in the late 1990s, leading to Clinton's impeachment.
Those years produced an unusually long public record. Republicans in the Senate only sought to review his years in the White House counsel office, rather than his three years as staff secretary, which Democrats say could shed light on his view on key Bush-era policies including the detention and interrogation of terror suspects, same sex marriage and other issues.
Rebuffed in their request to delay the hearing, Democrats are planning to shine a light on Kavanaugh's views on abortion, executive power and whether Trump could be forced to testify as part of special counsel Robert Mueller's Russia investigation.
Many Democratic senators already have announced their intention to vote against Kavanaugh and many Republicans have likewise signaled their support. A handful of Democrats seeking re-election in states Trump carried in 2016 could vote for Kavanaugh.
Sens. Susan Collins of Maine and Lisa Murkowski of Alaska are the only two Republicans even remotely open to voting against Kavanaugh, though neither has said she would do so. Abortion rights supporters are trying to appeal to those senators, who both favor abortion access.
Democrats have been under intense pressure from liberal voters to resist Trump, and many remain irate, even two years later, over the treatment of Merrick Garland, President Barack Obama's nominee for the Supreme Court. Garland was denied so much as a hearing last year by Majority Leader Mitch McConnell.
Kavanaugh worked for Justice Anthony Kennedy, who retired at the end of July. Questioning of Kavanaugh will begin Wednesday, and votes on the Senate floor could occur this month. Kavanaugh could be on the bench when the court begins its new term on Oct. 1.
What to know:
Roe v. Wade, Planned Parenthood v. Casey - These cases from 1973 and 1992, respectively, are the two main decisions on abortion rights. Kavanaugh has not said whether he believes they were decided correctly, and he's not likely to do so during the hearings. But he is certain to be asked repeatedly about abortion, Roe and Casey. He has provided two recent clues to his views, in the form of a speech that praised the late Chief Justice William Rehnquist's dissent in Roe and Kavanaugh's own dissenting opinion that would have denied immediate access to an abortion for an immigrant teen in federal custody.
Stare decisis - Latin for to stand by things decided. It's the legal principle that judges use to base decisions on earlier ones. When it comes up at confirmation hearings, it's often in reference to abortion rights and it's usually a way of asking if a nominee will overturn certain decisions - like Roe v. Wade. Nominees invariably invoke stare decisis, or refer to something as settled law, to try to reassure senators that they have great respect for Supreme Court precedents, without committing to preserve any specific one. Respect for precedent, however, has its limits. Last term, the court squarely overturned three precedents.
Chevron deference - A 1984 Supreme Court ruling, in a case involving the Chevron oil company, says that when laws aren't crystal clear, federal agencies should be allowed to fill in the details. That's what agencies do - on environmental regulations, workplace standards, consumer protections and even immigration law. But a growing conservative legal movement has questioned the Chevron decision. Kavanaugh has expressed some support for limiting agencies' discretion, as have several conservative justices. If a future Supreme Court were to limit the Chevron ruling, it would mark a big change in the law that would potentially make it harder to sustain governmental regulations.
Recusal - A judge's decision to not take part in a case, usually because he participated in it at an earlier stage, or has a financial or personal conflict. Democrats are going to press Kavanaugh to pledge to recuse himself if a case comes to the court involving Trump and special counsel Robert Mueller's Russia investigation. He is not likely to commit to do so.
Unitary executive - Kavanaugh will be asked to explain his view of just how much power a president has under the unitary executive theory of constitutional law. Kavanaugh has written judicial opinions and law review articles that suggest he supports the idea that a president may decline to enforce a law he believes is unconstitutional. Questioners also may focus on Kavanaugh's service in the White House under George W. Bush, who used signing statements to legislation that his administration saw as unreasonable or unconstitutional limits on executive power.
Subpoena - a legal order requiring a person to testify as a witness, it sometime also requires a person to turn over documents or other records under their control. Kavanaugh should expect to be asked whether the president can be subpoenaed, an open legal question that could reach the Supreme Court if Mueller tries to force the president to testify as part of the Russia investigation. Also an open question: Whether the president can be indicted, meaning charged with a crime.
Affirmative action - The term for efforts to improve opportunities for minorities, generally in employment and college admissions. It's a standard topic for Supreme Court confirmation hearings, particularly after a 2003 Supreme Court decision that predicted affirmative action wouldn't be necessary in 25 years. Senators may bring up a comment Kavanaugh made in 1999 about a different Supreme Court case, saying he believed it was "one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of government."
Balls and strikes - OK, that's not a legal term, but it will come up anyway. Chief Justice John Roberts famously compared judges to umpires during his 2005 confirmation hearing, saying neither makes the rules, but rather both just apply them. He said he'd remember if confirmed that his job is "to call balls and strikes." Lawmakers love to ask nominees about this analogy.
"Let him answer the question" - Again, not a legal term. Expect Senate Judiciary Chairman Chuck Grassley, or the Republican sitting in his place, to interject when Democrats' questioning of Kavanaugh gets especially heated, or they try to cut in if they feel Kavanaugh is trying to filibuster. Question time is limited and senators often feel free to jump in to move the questioning along.
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