Democrats Aim to Derail Kavanaugh With Eye on Abortion, Mueller
(Bloomberg) -- Democrats will have plenty of material to draw upon when they question U.S. Supreme Court nominee Brett Kavanaugh at his Senate confirmation hearings. What they won’t have is leverage.
Kavanaugh, President Donald Trump’s pick to succeed the now-retired Justice Anthony Kennedy, is a good bet to shift the court to the right, perhaps sharply so. As a U.S. appeals court judge in Washington since 2006, Kavanaugh struck down federal regulations, backed gun freedoms and questioned abortion rights.
But with the hearings starting Tuesday, Democrats haven’t been able to undercut Kavanaugh’s status as a heavy favorite to win confirmation in the Republican-controlled Senate. Both sides have pored through tens of thousands of pages of judicial opinions, speeches and documents, though Democrats say that includes just a small fraction of the material from Kavanaugh’s five years as a top White House official.
“He is extreme even by the right-wing, far-right ideological standards of this administration," Democratic Senator Richard Blumenthal of Connecticut told reporters. "There will be sparks at this hearing."
Senate Judiciary Committee Chairman Chuck Grassley, an Iowa Republican, said in an interview he is "feeling good" about confirmation prospects. Republicans, who will reclaim their 51-49 Senate majority after Arizona’s governor names a replacement for the late Senator John McCain, are aiming to get Kavanaugh seated by the time the court formally opens its term on Oct. 1. Having ended the use of filibusters for high court nominees in 2017, they could confirm Kavanaugh without any Democratic votes.
The hearings start with opening statements Tuesday, followed by questioning of the nominee Wednesday and Thursday. The leading outside group supporting Kavanaugh, the Judicial Crisis Network, has already spent more than $4 million on television ads urging his confirmation.
Threat to Roe
Kavanaugh, 53, hasn’t spoken publicly since he stood beside Trump at the White House on July 9. "A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent," he said then.
Democrats say those innocuous-sounding words mask a dangerous agenda, starting with abortion. Trump vowed during the campaign to appoint justices who would vote to overturn the landmark 1973 Roe v. Wade abortion-rights ruling.
On the appeals court this year, Kavanaugh dissented from a ruling that let an undocumented immigrant teenager get an abortion while in federal custody. In a speech last year he praised a dissenting opinion in Roe, crediting it with helping curb the "free-wheeling judicial creation" of constitutional rights.
"We have no reason to doubt that Kavanaugh fulfills that promise," Senator Dianne Feinstein of California said to reporters. "If confirmed, Brett Kavanaugh would be the deciding vote to overturn or gut Roe v. Wade."
Two Senate Republicans who support abortion rights -- Susan Collins of Maine and Lisa Murkowski -- could determine whether Kavanaugh is confirmed and will announce their intentions after the hearings. Collins said last week that Kavanaugh told her in a private meeting he views Roe as "settled law."
Democrats say that, if confirmed, Kavanaugh would help protect Trump from investigations by Special Counsel Robert Mueller and federal prosecutors in New York.
They point to Kavanaugh’s suggestion two decades ago that the Supreme Court might have been wrong in 1974 when it unanimously forced President Richard Nixon to turn over secret White House tape recordings. Kavanaugh has separately called on Congress to pass legislation to shield sitting presidents from criminal investigations while in office.
“Will he cover for Trump?" said Senator Sheldon Whitehouse, a Rhode Island Democrat who sits on the Judiciary Committee. "Is that why he’s being put on the court?”
But Kavanaugh’s broader record is more ambiguous. In 2016, he listed the Nixon ruling as one of the greatest moments in American judicial history. And by asking Congress to shield the president from investigations, he suggested that current law might not provide that protection.
His approach on federal regulation has been more consistent. He has reined in agencies on climate change, net neutrality and financial oversight. Kavanaugh signaled willingness to limit the so-called Chevron doctrine, under which judges often defer to federal agencies’ interpretations of ambiguous federal statutes.
The U.S. Chamber of Commerce has thrown its support behind Kavanaugh, saying the confirmation vote will be part of its annual scorecard for senators.
"Judge Kavanaugh has a strong record of keeping federal regulatory agencies within their statutory limits," Chamber Chief Executive Thomas Donohue said in a letter to senators. "His opinions reflect a jurist who has thought carefully about federal statutes and America’s broader regulatory structure."
According to an analysis by the consumer-rights group Public Citizen, Kavanaugh was involved in 101 business-related decisions that divided a three-judge panel 2-1. The group found that Kavanaugh sided with business interests 87 percent of the time.
Kavanaugh has shown "an overwhelming tendency to reach conclusions favorable to corporations and against the public interest," said Public Citizen President Robert Weissman.
Democrats say they haven’t been able to fully assess Kavanaugh’s nomination because they have received only about 6 percent of the relevant documents from his time in President George W. Bush’s White House. Republicans disclosed Saturday that a lawyer for the Bush presidential library has directed about 100,000 pages of Kavanaugh White House records to be withheld, on grounds that include executive privilege at the request of the Trump White House. Democrats say that decision amounts to a cover-up.
Kavanaugh served in the White House counsel’s office from 2001 to 2003 and then as staff secretary from 2003 to 2006.
Obamacare and Guns
Democrats are also likely to ask Kavanaugh about:
- Obamacare, which is under attack in a Republican-led lawsuit in Texas seeking to nullify a popular component. Trial is set to begin Wednesday.
- A 2009 opinion he wrote striking down a regulation that limited campaign spending by nonprofit groups.
- His work for independent counsel Kenneth Starr, whose report on then-President Bill Clinton’s sexual relationship with a White House intern led to his impeachment.
- His 2011 vote to strike down a District of Columbia law that banned some semi-automatic rifles and required all firearms to be registered.
- Any role Kavanaugh played in developing the Bush administration’s policy of allowing torture of suspected terrorists.
- Allegations that Kavanaugh misled Democrats during his 2006 appeals court confirmation hearing, when he said he had no formal role in formulating the administration’s detention policy for suspected terrorists.
For Democrats, the challenge will be getting Kavanaugh to say anything of substance on specific legal issues. Since Robert Bork’s provocative testimony helped doom his 1987 Supreme Court nomination, nominees have avoided providing much more than broad statements of legal philosophy and descriptions of past Supreme Court opinions.
Grassley says he anticipates Kavanaugh will make ready use of what has come to be known as the “Ginsburg rule.” In her 1993 hearing, future Justice Ruth Bader Ginsburg said she would offer "no hints, no forecasts, no previews" about legal issues that might come before the court.
"I don’t think he’ll make any statements other than that he’ll take the Ginsburg rule that no hints, no predictions, no nothing, you can’t ask me about anything that might come up 10 years from now because I don’t know what it’s going to be," Grassley said.
Grassley said he expects a party-line vote in the committee, where Republicans hold an 11-10 advantage, as happened last year when the panel advanced Trump’s nomination of Neil Gorsuch.
Most senators have already taken sides. Among Senate Republicans, 38 already have said Kavanaugh has their vote, according to a tally by Bloomberg News. And among Democrats, 25 have definitely said they will vote “no.”
Election-year politics will play a role as the confirmation goes forward. Three Senate Democrats up for re-election this year in states that Trump won in 2016 are under heavy pressure from constituents and outside groups to vote in favor of Kavanaugh. Those senators -- Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia -- supported Gorsuch last year.
All three have said they will wait until after this week’s hearings to make their determination, as Collins and Murkowski have said. In addition, Senator Doug Jones, an Alabama Democrat, says he’s keeping an “open mind” about Kavanaugh and could back him.
Senior Republicans on the panel, including Orrin Hatch of Utah and John Cornyn of Texas, say they see their role as largely to support Kavanaugh and help him make the points needed to get through the process.
"I don’t have a lot of questions of him, but I expect there will be a lot of things that come up that need to be corrected or clarified," said Cornyn, the No. 2 Republican leader. "I want to make sure the truth gets told and an accurate picture of his background and experience is reflected at the hearing."
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