August 29, 2018
Shell Game: Expect Trump’s SCOTUS Nominee Kavanaugh to Duck and Dodge Key Questions During Confirmation Hearings
Senior Fellow, Brennan Center for Justice and Distinguished Visitor from Practice, Georgetown University Law Center
President Trump has a radical far right agenda that is completely out of touch with the American mainstream and his pick of Brett Kavanaugh for the Supreme Court is just another step forward in pressing that agenda. The Senate has yet to review—or even receive—Kavanaugh’s full record, but nomination hearings start September 4 nonetheless.
This rushed schedule is clearly designed to prevent the American public from finding out just how far out of the mainstream Kavanaugh would be on the Court. We can also expect the nominee himself to dodge questions about his position on key laws to further hide his views.
Four issues we’ll be watching at the Kavanaugh hearings
Here are some lines of questioning that ACS will be watching for as the hearings unfold:
- Settled law: When asked questions about Roe v. Wade, Brown v. Board of Education, and other Supreme Court cases, Judge Kavanaugh will likely invoke the “Ginsburg Rule” to avoid answering questions about his opinion on rulings. The misinterpreting of Justice Ruth Bader Ginsburg’s response during her Supreme Court hearing is being used by the President’s nominees to avoid showing the public what it can expect from their time on the bench. In fact, nothing prevents nominees from expressing their views on settled questions of constitutional law, as the record shows Justice Ginsburg herself and previous nominees have done in their confirmation hearings.
- Precedent: In addition to invoking the “Ginsburg Rule,” Judge Kavanaugh will demur on giving his opinion on case law by stating he will follow precedent. The Supreme Court is, of course, not required to follow precedent, and there are plenty of indications that Brett Kavanaugh’s nomination is intended to advance causes on the right. If the past Term’s Janus v. AFSCME is any lesson, the promise to follow precedent is no assurance at all.
- Constitutional interpretation: When asked how Judge Kavanaugh interprets the U.S. Constitution, he will claim to be an originalist, but this also has little meaning given that “originalists” ultimately manipulate jurisprudence to reach their desired outcomes.
- Diversity: Judge Kavanaugh will claim he has advanced diversity in the legal profession by hiring women and people of color as clerks, but this is cold comfort given the harm his confirmation would do on a whole host of issues that matter, from women’s health care and immigrant rights to protections against discrimination.
What won’t be discussed at the Kavanaugh hearings
If Justice Gorsuch’s hearing is any indicator, there will be a lot of discussion of Judge Kavanaugh’s carpool contributions and friends in the progressive community. Here are some things you will likely not hear:
- During his hearing to be a judge on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh said that his time as Staff Secretary for President George W. Bush was key in preparing him to serve in the judiciary. Judge Kavanaugh’s documents from that time have not been made public, despite the critical events of that time period and his own words.
- Judge Kavanaugh is said to be a great carpool dad and a promoter of diverse clerks, but his judicial record suggests that he protects big businesses over people.
- Judge Kavanaugh may discuss his belief in a strong executive branch, but his belief in the unitary executive could suggest ending Special Counsel Mueller’s investigation and preventing the President from being held legally responsible for obstruction of justice.
The Supreme Court is the last hope of those seeking justice against powerful and often discriminatory special interests. We need a Supreme Court Justice who will protect the rights of all Americans, not just those of the powerful and wealthy. But we won’t get such a Justice if these rushed hearings prevent a full review of Kavanaugh’s record and if the nominee himself is allowed to hide his views on our nation’s bedrock laws.
View ACS’s Supreme Court Vacancy Toolkit for more about Judge Kavanaugh.