UPDATE Sept. 4, 8:38 a.m.: More than 42,000 pages of documents from Supreme Court nominee Brett Kavanaugh's time in the George W. Bush White House were released late Monday night, just hours before Kavanaugh's hearings before the Senate Judiciary Committee were set to begin Tuesday.
The last-minute release of the documents, which have been made available only to committee members, enraged Democrats — as New York Sen. Chuck Schumer tweeted, "This underscores just how absurd this process is. Not a single senator will be able to review these records before tomorrow."
At around 10 p.m. eastern time on Monday, Senate Judiciary Committee's Twitter account tweeted, "The Majority staff has now completed its review of each and every one of these pages."
More than 140,000 pages detailing Supreme Court nominee Brett Kavanaugh’s time in George W. Bush’s White House remain confidential. But his confirmation hearings will begin on Tuesday anyway.
Democrats, who’ve scrambled for ways to stop Kavanaugh’s confirmation ever since President Donald Trump announced his nomination in early July, have spent the last several weeks arguing Kavanaugh’s confidential records may contain crucial information about his judicial beliefs. So far, only the Senate Judiciary Committee members and their staff have the documents. And several Democrats have threatened to sue the National Archives if their Freedom of Information Act requests for the documents went ignored.
It’s unclear just what these documents may contain, but Republicans argue that they’re likely to be largely irrelevant to the hearings.
And now that Democrats’ efforts in the Great Documents Dispute of 2018 have failed, the Senate Judiciary Committee will spend the next few days grilling Kavanaugh about his record and judicial philosophy, just as its members did for Trump’s first Supreme Court nominee, Neil Gorsuch. Kavanaugh’s confirmation will likely be much more contentious, however, because there’s more at stake.
Since Gorsuch replaced the deeply conservative Justice Antonin Scalia, Gorsuch’s “originalist” leanings merely maintained the Supreme Court split between conservatives and liberals. But Kavanaugh would replace Justice Anthony Kennedy, the Supreme Court’s famous swing vote. He’ll be able to tilt the court to the right for decades to come, especially on deeply partisan issues like abortion.
Kavanaugh also has a storied history of opinions related to presidential immunity in civil and criminal cases, which worries his detractors — especially since Trump’s former personal lawyer, Michael Cohen, pleaded guilty to multiple financial crimes that may involve his former employer.
Some Democrats, in fact, tried to halt Kavanaugh’s confirmation hearings because of those pleas. Hawaii Sen. Mazie Hirono, who sits on the Senate Judiciary Committee, called Trump “an unindicted co-conspirator in a criminal matter” and argued that Trump picked Kavanaugh “to protect, as we say in Hawaii, his own okole.”
After the hearings, the committee will send its recommendation on Kavanaugh’s nomination to the full Senate for a vote. Because Majority Leader Mitch McConnell triggered the “nuclear option” to get Neil Gorsuch confirmed last April, Supreme Court nominees no longer need to secure 60 votes to be confirmed to the court. Instead, only 51 senators need to vote in favor of Kavanaugh. Just two would have to flip in order to halt Kavanaugh’s ascent to the nation’s highest court.
Here’s what to expect during the hearings:
Kavanaugh will try to avoid talking about Roe v. Wade.
Trump declared during his campaign that he would only appoint anti-abortion justices to the Supreme Court, but would-be justices have a history of insisting that they have absolutely zero thoughts about Roe v. Wade, the contentious 1973 Supreme Court decision that legalized abortion nationwide.
When asked whether Roe was correctly decided, for example, Gorsuch avoided answering the question by replying, “I would tell you that Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered.”
Gorsuch later refused to divulge what he called his “personal opinion” on Roe, as he said he refuses to do for all cases. That doesn’t provide much consolation for abortion rights advocates — Justice Clarence Thomas made a similar claim during his 1991 confirmation hearing, saying, “Do I have this day an opinion, a personal opinion, on the outcome in Roe v. Wade? And my answer to you is that I do not.”
Nine months later, as the Cut pointed out, Thomas joined a Supreme Court opinion that declared “ Roe was plainly wrong.”
Kavanaugh ruled on one major abortion case during his decade-plus residency on the U.S. Court of Appeals for the District of Columbia Circuit: In October 2017, he joined with two other judges to halt a district court order that would’ve allowed an undocumented teen in federal custody to get an abortion.
When the full D.C. Circuit panel reversed that decision a few days later, Kavanaugh wrote a dissent that argued the decision was “ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” (The term “abortion on demand” is a longtime favorite of anti-abortion activists.)
Maine Republican Sen. Susan Collins, who supports abortion rights, told reporters that Kavanaugh had assured her he considers Roe to be “settled law” during a private meeting. (Collins and Alaska Republican Sen. Lisa Murkowski, both moderates, are considered the two Republican senators most likely to vote against Kavanaugh.) New York Democratic Sen. Chuck Schumer, however, argued that’s not good enough, since the term “settled law” doesn’t mean a law cannot be overturned or curtailed.
“Everything the Supreme Court decides is settled law until a majority of the Supreme Court decides to unsettle it,” Schumer told Politico after his own meeting with Kavanaugh. “Conservative justices have a habit of saying something is settled law during their confirmation and then overturning the minute they get on the bench.”
Schumer has questioned Kavanaugh about Roe v. Wade at least once before, during Kavanaugh’s 2006 nomination hearing for his judgeship on the D.C. Circuit court. Schumer asked Kavanaugh, “Do you consider Roe v. Wade to be an abomination?”
“If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully,” Kavanaugh replied. “That would be binding precedent of the court. It's been decided by the Supreme Court.”
That answer does not preclude Kavanaugh from overturning Roe v. Wade while on the high court.
Senators will try to pin Kavanaugh down on Trump’s immunity.
Can the president be subpoenaed for testimony before a federal grand jury? When can he claim executive privilege and refuse to divulge details? Can a former ”Apprentice” contestant sue him for defamation in state court after accusing him of sexual assault? All these questions could one day — soon — appear before the court, and senators will likely want to know where Kavanaugh stands on each.
Kavanaugh served as a top aide in independent counsel Kenneth Starr’s investigations into the Clinton White House and recommended that prosecutors force Clinton to go into graphic detail about his sexual involvement with White House intern Monica Lewinsky.
In a 1998 memo, Kavanaugh suggested prosecutors ask questions like, “If Monica Lewinsky says you had phone sex with her on approximately 15 occasions, would she be lying?” and “If Monica Lewinsky says that she gave you oral sex on nine occasions in the Oval Office area, would she be lying?” (Kavanaugh added of the questions, “I leave the best phrasing to others.”)
“He should be forced to account for all of that and to defend his actions. It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear — piece by painful piece,” Kavanaugh continued. “Given what we know, the interests of the Office of the President would be best served by our gathering the full facts regarding the actions of this President so that the Congress can decide whether the interests of the Presidency would be best served by having a new President.”
By the time of a 1998 Georgetown Law School conference, however, Kavanaugh had apparently reversed his view on presidential investigations. He indicated that he believes a sitting president cannot be indicted, a view long shared by the Justice Department but which Kavanaugh called a “lurking constitutional issue.”
He went on to argue that the issue needed to be resolved, “so that we can determine whether the Congress or an independent counsel should investigate the president when his conduct is at issue,” Kavanaugh said. “I tend to think it has to be the Congress because of the kind of attacks that we’ve seen recently, and because of the types of issues that were just pointed out. It is war, and if it’s gonna be war, it’s gotta be Congress.”
Senators at Kavanaugh’s confirmation hearing will almost certainly zero-in on this statement for clues about Kavanaugh’s view of special counsel Robert Mueller’s investigation into Russian interference and collusion in the 2016 election. (It’s important to note that independent counsels, like Starr, operate separately from the Justice Department, while Mueller answers to Deputy Attorney General Rod Rosenstein.)
With prosecutors tightening their grip around key campaign players like Paul Manafort and George Papadopoulos, Trump may soon be asked to answer some questions. Since Trump’s team has suggested that they’d fight any subpoenas from Mueller, Kavanaugh, if confirmed, may be called upon to decide whether Mueller’s investigation is constitutional.
Kavanaugh expanded on his views in a 2009 Minnesota Law Review article, “Separation of Powers During the Forty-Fourth Presidency and Beyond,” which is also sure to be the subject of several questions in his confirmation hearings. He argued that the president should not have to deal with civil lawsuits, criminal investigation, or prosecution while in office — though he didn’t rule out going after the president once he leaves office.
“The country wants the president to be ‘one of us’ who bears the same responsibilities of citizenship that all share,” he wrote. “But I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office.”
Cover image: President Donald Trump shakes hands with Judge Brett Kavanaugh his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Alex Brandon)