WASHINGTON — Senate confirmation hearings begin this week for Supreme Court nominee Brett Kavanaugh, providing a glimpse into the jurist who upon confirmation would tip the ideological balance of the bench and reshape the court as a more conservative panel for decades to come.
Republicans are pushing for confirmation of Kavanaugh, 53, citing his lengthy tenure on the U.S. Court of Appeals for the District of Columbia, a court long viewed as a stepping stone to the Supreme Court.
President Donald Trump called Kavanaugh one of the country’s best legal minds on July 9 when he nominated the jurist for the seat being vacated by Justice Anthony Kennedy. Kennedy, who stepped down in July, was often seen as the swing member of the court, siding with conservatives on some issues and the liberal wing on social matters.
Kavanaugh, like Justice Elena Kagan, served in political roles before becoming an appellate judge in 2006. He served as staff secretary to President George W. Bush and also worked for independent counsel Kenneth Starr in the investigation that led to the impeachment of President Bill Clinton.
Democrats plan to grill Kavanaugh on his partisan record in the Bush administration, his role under Starr and the push to impeach Clinton, and his wavering stance on executive power. They’ll also question him about his views on abortion rights.
“He’ll get confirmed. It won’t be a landslide, but he’ll get confirmed,” Senate Majority Leader Mitch McConnell, R-Ky., predicted.
The nuclear option
Republicans maintain a slim 51-49 majority in the Senate and need just a simple majority to confirm the nominee, following McConnell’s decision last year to use the “nuclear option,’’ a rule change that eliminated the 60-vote threshold to cut off debate and a filibuster.
Democrats can block the nomination only with Republican defections, but two moderates, Sen. Susan Collins of Maine and Sen. Lisa Murkowski of Alaska, appear to be leaning toward confirmation. Likewise, several Democrats in states won by Trump in 2016, like Sen. Joe Manchin, D-W.V., and Sen. Heidi Heitkamp, D-N.D., are open to supporting Kavanaugh’s confirmation.
Without the votes to block the confirmation, Democrats called on GOP leaders to delay the hearings until after the 2018 midterm election, which is likely to change the majority, either handing Democrats control of the Senate or widening the Republican hold on the chamber.
But McConnell dismissed calls for a delay, citing a heavy legislative calendar. He wants a Senate confirmation vote on Kavanaugh by Oct. 1, when the Supreme Court begins its fall term.
“We have a full plate in September,” McConnell told reporters.
Carl Tobias, a former UNLV professor now with the University of Richmond School of Law, said it appears Republicans are using their muscle to expedite the confirmation, as Democrats would likely do in the same situation.
“It looks like they are rushing to get it done,” said Tobias. “It’s a sheer power play.”
Kavanaugh meets Heller
In the runup to the hearings, Kavanaugh glad-handed senators on the Judiciary Committee, which has set aside all this week for hearings. He also met with likely supporters as he was shepherded through the Capitol by White House aides and former Sen. Jon Kyl, R-Ariz.
Kavanaugh met in July with Sen. Dean Heller, R-Nev., who immediately declared his support for the jurist.
“Judge Kavanaugh’s extensive record tells us that he respects precedent, defends the Constitution, and doesn’t legislate from the bench, and I believe next week’s hearings will reflect that,” Heller said.
Sen. Catherine Cortez Masto, D-Nev., expects to meet with Kavanaugh after the hearings, but before the vote on confirmation.
A former Nevada attorney general and federal prosecutor, Cortez Masto said she has questions about Kavanaugh’s positions and rulings on issues that include abortion rights, LGBTQ rights, net neutrality and an appellate court ruling on the licensing process for Yucca Mountain.
Cortez Masto and other Democrats have demanded more access to Kavanaugh documents, particularly those that pertain to his time in the Bush White House and controversial administration decisions on surveillance and torture following Sept. 11, 2001.
“We should do a thorough research because this is a lifetime appointment that is going to impact a generation,” Cortez Masto said. “We should have access to all his documents, not just some of them.”
Senate Majority Whip John Cornyn, R-Texas, said more than 400,000 pages of documents have been produced, double the 180,000 pages that were made available to the committee when Judge Neil Gorsuch was nominated last year.
“The best evidence of how Judge Kavanaugh will perform on the bench is how he has done in the last 12 years as a member of the D.C. Circuit Court of Appeals,” Cornyn said.
Yucca Mountain ruling
One of those appellate rulings involved Yucca Mountain, in a lawsuit brought by Aiken County, South Carolina, which sought court intervention when the Obama administration cut off funding for a Department of Energy license application to build a nuclear waste repository in Nevada.
Kavanaugh wrote the majority opinion that the Nuclear Regulatory Commission must continue to spend congressionally authorized funds on the Yucca Mountain licensing process until they were exhausted. The ruling specifically stated that the decision was not a determination on the merits of the nuclear waste site.
Heller and Cortez Masto differ on the significance of the ruling. Cortez Masto claims the ruling gave the green light to continue the licensing process after Obama slashed future spending. Heller sees the ruling as a narrow interpretation upholding a congressional directive.
If last year’s hearing for Gorsuch is an indicator, people trying to glean much information about Kavanaugh might be disappointed with the hearing setting where the nominee will seek to reveal as little as possible about how he may rule on issues before the court.
Tobias said Kavanaugh will be counseled to “do the bare minimum” in regard to Senate testimony.
“Nominees have nothing to gain by being forthcoming,” Tobias said. “Why should he take chances?”
What: Senate Judiciary Committee hearing on Supreme Court nominee Brett Kavanaugh
Begins: Tuesday, Sept. 4 6:30 a.m. Pacific time
Witnesses for the Republican majority include: former U.S. solicitors general Theodore Olsen and
Witnesses for the Democratic minority include: John Dean, former counsel to President Richard Nixon, and Rep. Cedric Richmond, D-La., chairman of the Congressional Black Caucus.
Source: Senate Judiciary Committee