What to Expect in the Kavanaugh Supreme Court Confirmation Hearing

Two Brett Kavanaughs will be on the hot seat on Tuesday when Senate Judiciary Committee Chairman Charles Grassley gavels the Supreme Court nominee’s confirmation hearing to order: his critics’ gravely distorted one and the judge widely lauded by his supporters, according to the Judicial Crisis Network’s (JCN) Carrie Severino.

“I think you’re going to see, especially with several 2020 contenders on the committee, you’re going to see a few people in a race to the bottom, effectively be trying to outdo each other in terms of overheated rhetoric,” Severino told LifeZette.

“So you’re going to hear some of that, which will include a lot of aspects of his record that will be completely distorted and fabricated,” she said referring to judiciary panel members  Sen. Cory Booker (D-N.J.) and Sen. Kamela Harris (D-Calif.), who are expected to seek their party’s presidential nomination in 2020.

But then there will be the real Judge Brett Kavanaugh (pictured above), the 53-year-old man in a black robe, attorney, former senior White House aide, husband and father. If confirmed, he would succeed the retiring Justice Anthony Kennedy.

“You’ll see also from the witness list and some people introducing him that he is someone who inspires respect and admiration from leading liberal lawyers, other judges, liberal academics,” Severino said. “He is someone whose reputation is very impressive within the legal community as a whole in a bipartisan manner.”

Most prominent among liberal jurists supporting Kavanaugh is one of his Yale Law School professors, Akhil Reed Amar, who wrote in a July 9 op-ed in The New York Times:

“Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum.”

Severino is among Kavanaugh’s most visible advocates, serving as JCN’s chief counsel and policy director. Her group has been an active supporter of Kavanaugh, including creating a multimillion-dollar advertising campaign, since his nomination was announced by President Donald Trump July 9. She previously worked as a law clerk for U.S. Supreme Court Justice Clarence Thomas.

Kavanaugh’s confirmation, which Trump and Senate Republicans hope to complete before the high court’s October term begins, would give the nation’s highest tribunal a solid conservative majority for the first time in generations. That is why Democrats can be expected to do whatever it takes to defeat Kavanaugh.

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Severino believes Kavanaugh’s bipartisan respect from the legal community comes from his even-handed approach to cases. She notes that Kavanaugh has had no problem breaking down the logic behind his legal philosophy, and that will likely be on display during the hearings.

Kavanaugh has decided recent cases based on what he refers to as the “major rules doctrine.” He explained in the dissent for the 2017 case United States Telecom Association v. Federal Communications Commission that Congress must clearly express if it wishes to assign an agency authority of vast economic and political significance.

“I think you’re also going to get to hear a public civics lesson of sorts,” Severino said. “The judge will have the opportunity to explain the proper approach to judging, where it is not the role of an unelected judge to write, rewrite, fix, clean up the law. That’s for our elected representatives.”

Kavanaugh has resisted the expansion of administrative agency power when ruling on past cases, particularly in regard to the Environmental Protection Agency. He is an opponent of judicial activism, stating during a speech at Notre Dame Law School in 2017 that judges should decide cases without regard to policy preferences or political allegiances.

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Kavanaugh is more generally viewed as an originalist, who will decide cases in the manner of Justices Clarence Thomas and the late Antonin Scalia. He is viewed as a conservative but one who isn’t afraid to cross the line at times, such as rejecting two constitutional challenges to the Affordable Care Act, also known as Obamacare, on technical grounds.

Democrats will repeatedly try to box Kavanaugh into a corner in an attempt to force him to say in advance how he would rule on critical issues like abortion. Severino expects Kavanaugh to handle those questions as did Justice Ruth Bader Ginsburg.

“I also predict that we’ll see a whole lot of discussion on the Ginsburg standard,” Severino said. “This was made famous by Justice Ginsburg who refused to answer a lot of questions during her hearing on the ground that they were issues likely to come before the court. But she’s by no means the only justice to have done that.”

Ginsburg has become one of the more respected liberal justices since her confirmation in 1993. Grassley has been quick to point out the standard she established when recent conservative nominees such as Justice Neil Gorsuch have been challenged for doing the same thing.

Senate Minority Leader Chuck Schumer (D-N.Y.) said last year he supports the Ginsburg Rule. Republicans on the judiciary panel will have frequent opportunities during the hearing to remind Democratic colleagues about the Ginsburg Rule.

“There is a long precedent of nominees in both parties not answering what they would do in a case that’s likely to come before them,” Severino said. “At the time Sen. Schumer was saying this is exactly the right rule, you should never have to answer these questions.”

Schumer isn’t on the judiciary committee, but his role in opposing the nomination has been significant. He and other Senate Democrats have demanded copies of an estimated 1 million documents from when Kavanaugh worked for former President George W. Bush in the White House. Schumer also threatened to sue the National Archives for the documents.

Severino points out that Kavanaugh has provided more documents than any nominee in history alongside the longest bipartisan committee questionnaire for a judicial nominee on record. Grassley has stressed the same point numerous times throughout the confirmation process, stating the questionnaire reached roughly 17,000 pages.

The JCN counsel and committee Republicans contend the document demand’s real goal is to distract from Kavanaugh’s record and delay the process past November’s midterm elections in the hope Democrats will regain the Senate majority. Schumer is making unreasonable demands that he knows it’s impossible to fulfill. That won’t keep Democrats from bringing up the issue repeatedly, Severino said.

Related: Booker Demands Kavanaugh Recuse Himself from Trump Cases

“You’ll hear a lot about things that are in fact not real issues,” Severino said. “The Democrats cannot afford to focus on his actual records, so they are doing everything they can to distract from Judge Kavanaugh himself.”

She added that Democrats “are acting like we are voting for President Bush or President Trump. Not so. What they need to look at is Brett Kavanaugh, who has a very clear record.”

Kavanaugh has been a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 2006. He had previously worked as a senior associate counsel and assistant to the president for Bush.

Kavanaugh clerked for Justice Kennedy for one term in 1993. Additionally, he has worked as an attorney for the Office of the Solicitor General in the Department of Justice and as an associate counsel for independent counsel Kenneth Starr in his probe of the Whitewater-Monica Lewinsky scandal, which resulted in President Bill Clinton’s 1998 impeachment by the House of Representatives.

A few Senate Democrats have met with Kavanaugh, led by Sen. Joe Manchin (D-W.Va.) and followed by Sens. Heidi Heitkamp (D-N.D.), Joe Donnelly (D-Ind.) and Claire McCaskill (D-Mo.). Schumer also met with Kavanaugh but discouraged other Democrats from doing so.