5 topics likely to come up as Kavanaugh hearing begins

5 topics likely to come up as Kavanaugh hearing begins
© Anna Moneymaker

Brett Kavanaugh will kick off three days in the hot seat on Tuesday as hearings begin on the confirmation of the man who could potentially become President TrumpDonald John TrumpGillibrand backs federal classification of third gender: report Former Carter pollster, Bannon ally Patrick Caddell dies at 68 Heather Nauert withdraws her name from consideration for UN Ambassador job MORE’s most influential judicial nominee.

The former D.C. Circuit Court of Appeals judge is a conservative like Trump’s first Supreme Court pick, but Justice Neil Gorsuch replaced a conservative on the high court. Given the current makeup of the bench, Kavanaugh’s confirmation could shift the ideological balance of the court decisively to the right for at least a generation.

The hearings before the Senate Judiciary Committee mark the first time Kavanaugh will appear on camera for a significant period since his nomination.

The Judiciary panel includes multiple members up for reelection this year, including Sens. Ted CruzRafael (Ted) Edward CruzPoll shows competitive matchup if O’Rourke ran for Senate again Democrats veer left as Trump cements hold on Republicans O’Rourke heading to Wisconsin amid 2020 speculation MORE (R-Texas) and Dianne FeinsteinDianne Emiel FeinsteinFeinstein says she thinks Biden will run after meeting with him Trump judicial nominee Neomi Rao seeks to clarify past remarks on date rape Bottom Line MORE (D-Calif.), as well as at least two Democrats considered potential 2020 White House contenders: Sens. Kamala HarrisKamala Devi HarrisKamala Harris shopping trip stirs Twitter campaign trail debate Sanders expected to announce exploratory committee next week Bill Maher to Dems: ‘Let’s not eat our own’ in 2020 MORE (Calif.) and Cory BookerCory Anthony BookerSanders expected to announce exploratory committee next week Bill Maher to Dems: ‘Let’s not eat our own’ in 2020 Dems ready aggressive response to Trump emergency order, as GOP splinters MORE (N.J.).

Sen. Richard Blumenthal (D-Conn.) predicted Friday that the hearings will be heated.

“Kavanaugh is extreme even by the right wing, far-right ideological standards of this administration,” Blumenthal said in a call with reporters. “Sparks will fly at this hearing.”

Here’s a look at five things senators are likely to grill Kavanaugh on.

Executive privilege

Judiciary Committee member Sen. Dick DurbinRichard (Dick) Joseph DurbinTrump praises law enforcement response to shooting at Illinois business Five dead in shooting at manufacturing plant in Aurora, Illinois ‘Contingency’ spending in 3B budget deal comes under fire MORE (D-Ill.) said Kavanaugh’s views on whether a sitting president can be spared from a criminal investigation will be a major issue at the hearings.

“I’ll tell you that will be front and center,” Durbin told The Hill.

Trump has yet to agree to an interview with special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE in his investigation into Russian meddling in the 2016 presidential election and possible collusion with the Trump campaign, and last month Trump’s former personal lawyer and “fixer” Michael Cohen implicated the president while pleading guilty to violating campaign finance laws.

Democrats have argued the hearings should have been postponed given that Trump’s nominee could ultimately shield him from having to provide testimony in Mueller’s probe or exonerate him from a criminal indictment.

A lot of attention has been paid to what Kavanaugh has said and written over the years as to whether a sitting president can be indicted. Politico reported last month that he raised his hand during a 1998 Georgetown Law School conference when asked how many panelists thought they could not.

In the Georgetown Law Journal months later, he said it was “debatable,” but in a 2009 Minnesota Law Review article, he argued litigation and criminal investigations against a president should be deferred until they are out of office.

“This is not something I necessarily thought in the 1980s or 1990s,” he wrote. “Like many Americans at that time, I believed that the president should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake.”

The Washington Post reported that while Kavanaugh believes it’s a bad idea to indict a sitting president, he has never stated whether he thinks the Constitution allows it.


Kavanaugh will almost certainly be asked for his views on Roe v. Wade, the 1973 landmark Supreme Court decision that gave women the right to an abortion.  

Kavanaugh has not ruled directly on abortion rights, but last year dissented from the D.C. Circuit’s decision to allow a teenage immigrant without legal status being held in federal custody to obtain the procedure, saying the majority was creating a "new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

Many have also noted that he lauded Chief Justice William Rehnquist for dissenting in Roe v. Wade in a speech first reported by the Los Angeles Times.

Sen. Susan CollinsSusan Margaret CollinsCongress must step up to protect Medicare home health care Business, conservative groups slam Trump’s national emergency declaration The Hill's 12:30 Report — Presented by Kidney Care Partners — Trump escalates border fight with emergency declaration MORE (R-Maine), who is seen as a potential swing vote on the nomination, originally raised concerns about Kavanaugh’s views on the issue. But she later said Kavanaugh assured her in their meeting that Roe is “settled law.”

That won’t stop Democrats from asking the Yale graduate whether the decision was rightly decided.

Still, he’s unlikely to answer.

Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, which is spending millions to get Kavanaugh confirmed, said a nominee can’t comment on specific cases that are likely to come before the court.


Democrats and health advocates fear Kavanaugh will be a vote to gut President Obama’s signature health-care law.

Sen. Elizabeth WarrenElizabeth Ann WarrenDNC punts on measure to reduce role of corporate PAC money Bill Maher to Dems: ‘Let’s not eat our own’ in 2020 Newsom endorses Kamala Harris for president MORE (D-Mass.) has said in a July tweet that Kavanaugh’s record shows he’s “hostile to health care for millions.”

Many note his dissent from the D.C. Circuit’s decision in a 2011 case, known as Seven-Sky v. Holder, to uphold the constitutionality of the Affordable Care Act’s individual mandate. But as Tejinder Singh, a partner at Goldstein & Russell PC, noted in SCOTUSblog, Kavanaugh did not say he’d strike down the law. He said he would not have reached the merits stage of deciding the case and instead holds the courts lacked jurisdiction to hear the case.

While the dissent has been lambasted by liberals, it’s also drawn criticism from conservatives who claimed it didn’t go far enough.

ObamaCare is likely to be a focus of the hearings because it could make or break one key Democratic vote. Red-state Democrat Sen. Joe ManchinJoseph (Joe) ManchinSenate confirms Trump pick William Barr as new attorney general GOP wants to pit Ocasio-Cortez against Democrats in the Senate Senate poised to confirm Trump’s attorney general pick MORE (W.Va.) has expressed concerns about whether Kavanaugh would gut protections for people with pre-existing conditions given a pending lawsuit in federal court brought by 20 state attorneys general, including the attorney general of West Virginia.

Manchin was one of three Democrats to vote for Gorsuch. He said he will make a final decision on Kavanaugh's nomination once he completes a thorough and fair examination of his candidacy.

Civil Rights

The hearings are moving forward despite the fact the Judiciary Committee has yet to receive hundreds of thousands of documents from Kavanaugh’s time in the George W. Bush White House, where he served as senior associate White House counsel and later staff secretary.

Democrats say they have only been given 4 percent of the documents that exist. Blumenthal questioned what Republicans might be trying to hide by keeping the documents concealed.

“I’m willing to wager there’s a smoking gun here,” he said.

Opponents say the missing documents could shed light on Kavanaugh’s views on civil rights.

Kristen Clarke, executive director and president of the Lawyer’s Committee for Civil Rights Under the Law, noted Bush was a staunch opponent of legislation to expand federal hate crime laws.

“It would be important to know what role he had in formulating the White House position on these and other critical civil rights issues,” she said.

Specifically, Clarke said she wants to see committee members press Kavanaugh for his views on voting rights and race. Cases challenging partisan gerrymandering and affirmative action are already making their way to the court.

But Severino noted a concurring opinion Kavanaugh wrote in a 2013 in which he said even one use of the N-word is enough to establish an actionable hostile work environment.

“This is someone who takes charges of racism very seriously,” Severino said.

Second Amendment

The committee is also likely to ask Kavanaugh for his views on gun rights, given the country's epidemic of mass shootings.

Questions are likely to come from Feinstein, the panel’s ranking member, who said Friday that Kavanaugh had fought against common-sense measures to stem gun violence.

“He argued Washington could not consider benefits to public safety when banning assault weapons like AR-15s. So this is far outside the mainstream of any legal thought,” she said.

Feinstein was referring to Kavanaugh’s 2011 dissent on the D.C. Circuit’s decision to uphold the district’s ban on assault weapons and large-capacity magazines, as well as its new gun registration requirements.

Kavanaugh said he would have struck down the bans and gun registration requirements, calling them unconstitutional under the Supreme Court’s ruling in District of Columbia v. Heller. In that case, he said the high court held that handguns — the vast majority of which are semi-automatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.

Gun control advocates fear Kavanaugh’s could be a fifth vote on the court to expand the Second Amendment and make assault weapons bans unconstitutional.

—Jordain Carney contributed to this report.