Who wouldn’t want to spend the day watching a Supreme Court nomination hearing?
FiveThirtyEight is tracking Brett Kavanaugh’s testimony in the Senate all week long, and some of our writers will be offering our thoughts after each day’s action. Today, Oliver Roeder and Perry Bacon Jr. each filed a dispatch.
The fog of Trump has hung heavy in the air during Kavanaugh’s hearing. From his opening answer on today, Kavanaugh sought to strategically forestall the left’s criticism of his nomination: that his expansive view of executive power, developed during the George W. Bush administration, could eventually serve to protect Donald Trump, expose the special counsel, and indeed that perhaps he was nominated for that very reason.
To parry this suggestion, Kavanaugh repeatedly cited United States v. Nixon, which found that the president’s executive privilege is not immune from judicial review, as one of the most important moments in American judicial history. “Why was it such a great moment?” Kavanaugh asked himself. “The court stood up for judicial independence in a moment of national crisis.” He also cited the importance of Federalist Papers No. 69, by Alexander Hamilton, which distinguishes the president from a king and outlines the process of impeachment, and Kavanaugh’s own ruling in favor of Salim Hamdan, Osama bin Laden’s driver, against the will of the Bush administration.
“No one is above the law,” he said. “I’m a pro-law judge.”
Show me the judge who isn’t. Countless more non-answers followed. When asked about assault weapons, he pointed only to existing Supreme Court precedent. When asked about overturning Roe v. Wade, he pointed only to the principles of stare decisis. When asked about insurers and pre-existing conditions, he essentially refused to answer. (Democrats’ nominees do this, too. “It wouldn’t be appropriate for me to bind myself with respect to any future case that came before me,” Justice Elena Kagan said in 2010.)
“It’s inappropriate for a nominee to answer these questions” about hypothetical future cases, Sen. Chuck Grassley, the committee’s chairman, said, citing the confirmation hearing of Justice Ruth Bader Ginsburg and the so-called Ginsburg Rule, which ostensibly holds that nominees should offer no hints about future votes. (This is an unwritten rule; no one enforces it.) Indeed, Kavanaugh successfully kept a wide berth from all of the hypotheticals posed to him by the legislators.
But Ginsburg herself actually offered substance during her hearing in 1993. She said, for example, that “the right to marry, the right to procreate or not, the right to raise one’s children, the degree of justification the state must have to interfere with those rights is large.”
Listening to Kavanaugh today, it’d be easy to imagine him as the idealized jurist he’s trying to project: an impartial referee, with no preconceptions, interested solely in law, unbothered by and uninterested in politics and ideology.
But the court is, empirically and forcefully, a politicized body. Sen. Sheldon Whitehouse warned Kavanaugh that this could erode the court’s legitimacy — he pointed to a chart that showed that Kavanaugh had supported conservative amicus groups over 90 percent of the time, as had the Roberts court in 5-4 cases. FiveThirtyEight has written repeatedly about the likely sharp-right ideological shift of the court should Kavanaugh be confirmed. And legal scholars Kevin Cope and Joshua Fischman presented new findings this morning in The Washington Post, based on nearly 200 of Kavanaugh’s votes and over 3,000 votes of his colleagues. “In every policy area,” they wrote, “Kavanaugh had the most conservative or second-most conservative voting record on the D.C. Circuit.”
“I don’t think I have a pro-that or pro-this record,” Kavanaugh said.
– Oliver Roeder
Kavanaugh’s performance reminded me at times of the way Chief Justice John Roberts carried himself during his 2005 confirmation hearings. Kavanaugh is smart, affable and super-articulate, like Roberts, and that is clear on a stage like this. Kavanaugh described the lack of women in high-level judicial clerkships and how he implemented a system to ensure that he hired female clerks as though he were an expert on diversity issues. Even when the hearing got heated, particularly when Sens. Patrick Leahy and Dick Durbin all but accused him of lying, Kavanaugh kept his cool.
Four issues stood out to me:
- As Ollie wrote, Kavanaugh repeatedly said that one of the court’s best-ever decisions was in United States vs. Nixon, in which the justices ruled that Nixon had to turn over the recordings he had made in the Oval Office. I think his message was important here. I don’t think Kavanaugh was promising to rule against Trump. But I wonder on cases related to Trump whether Kavanaugh is more likely to align with Roberts than Justices Samuel Alito, Neil Gorsuch and Clarence Thomas, who pretty consistently take the most-conservative position. (In other words, based on what he indicated today, I think Kavanaugh, on issues involving Trump, may look for compromises in the way that Roberts does at times.)
- Kavanaugh seemed very skeptical of really any gun control legislation, except limits on machine guns.
- He also, at least to my ears, didn’t sound likely to strike down Roe v. Wade, but also was unlikely to get in the way of limits on abortion. So if Kavanaugh is confirmed, states like Texas will probably be able to continue to pass laws that chip away at the ability of women to have abortions, even if Roe remains on the books.
- He emphasized his concern about regulations. “I’m not a skeptic of regulation at all. I’m a skeptic of unauthorized regulation, of illegal regulation, of regulation that is outside the bounds of what the laws passed by Congress have said,” he said. On the court, I think Kavanaugh would likely strike down, say, greenhouse gas emissions limits imposed by the Environmental Protection Agency without explicit congressional authorization.
In short, conservatives should be reassured by what Kavanaugh said today, and liberals should be worried.
One last thing: I have covered several of these nomination hearings — and they are increasingly difficult to watch. Many of the Republicans on the committee barely even asked Kavanaugh real questions. Politically, they can’t vote against a Trump Supreme Court nominee, and I think really sharp questions of him would be a bad political move for them. The Democrats know that Kavanaugh is likely to support Republicans’ views on most issues. So they repeatedly ask him to commit to those views publicly, which he will never do during the confirmation hearing. The result is basically hours of meaningless posturing — protesters shout and then are kicked out of the hearing room; Republican senators basically waste 30 minutes praising the nominee; and Democrats slam the nominee for not answering questions they knew he would not answer. I don’t think I know much about Brett Kavanaugh that I didn’t know on Tuesday — other than his hiring practices for clerks.
– Perry Bacon Jr.