An Advocate for Women or a Threat? As Hearings Begin, Differing Views of Kavanaugh Emerge
Posted September 3, 2018 11:24 p.m. EDT
Updated September 3, 2018 11:33 p.m. EDT
WASHINGTON — Two wildly different portraits of Judge Brett Kavanaugh are set to emerge Tuesday when he appears on Capitol Hill for the opening of his Supreme Court confirmation hearings. One is a champion for women; the other a threat to women’s rights.
Republicans will present Kavanaugh to the nation as an experienced, independent-minded jurist with a sparkling résumé, and as an advocate and mentor for women in the judiciary. Among the cases they will cite: his 2009 ruling in favor of Emily’s List, the group that backs Democratic women who support abortion rights.
Democrats will tell an entirely different story, painting Kavanaugh as a far-right extremist who would roll back abortion rights, deny health coverage to people with pre-existing conditions, protect President Donald Trump from the threat of subpoena — and as someone who may have misled Congress when he testified during his appeals court confirmation hearing in 2006.
Those two competing narratives will define the contours of a deeply partisan and immensely consequential battle over Trump’s Supreme Court nominee. But while Democrats vowed early on to scuttle the Kavanaugh nomination — Sen. Chuck Schumer, D-N.Y., the minority leader, promised to “oppose him with everything I’ve got” — they are unlikely to find success.
Democrats have been unable to muster much public outrage over his nomination or Republicans’ refusal to grant them full access to documents from Kavanaugh’s time working for former President George W. Bush. Even the Trump White House’s decision over the weekend to keep 100,000 pages secret produced little blowback. On Monday night, just 13 hours before the hearings were to begin, lawyers for Bush gave the Senate 42,000 pages of confidential documents, prompting an irate Schumer to call the document production process “absurd,” on Twitter, adding, “Not a single senator will be able to review these records before tomorrow.”
Democrats also fell flat in their effort to delay the hearings after Trump’s former lawyer, Michael D. Cohen, implicated the president in a hush-money scheme to influence the 2016 election.
Kavanaugh, 53, has spent the past 12 years on the federal appeals court here — a traditional steppingstone to the Supreme Court. If he is confirmed, he will shape the course of American jurisprudence for generations to come, filling the seat long occupied by retired Justice Anthony Kennedy — a critical swing vote on divisive matters like same-sex marriage and abortion — with a committed conservative who would push a rightward-leaning court even further in that direction.
“The stakes are so high,” said Sen. Richard Blumenthal, D-Conn., and a member of the Senate Judiciary Committee. “We’re talking about a vote on the United States Supreme Court that could well decide whether women can decide when they want to have children, and whether Americans can decide whom they want to marry.”
But Sen. Charles Grassley, R-Iowa, the Judiciary Committee chairman, argued in an interview Monday that it was folly to try and predict how Kavanaugh might vote on any given matter. “How do I know what he’s going to rule on 10 years from now?” Grassley asked. “All I want is somebody that’s going to interpret the Constitution strictly and leave legislating to the Congress of the United States, and I think he’s the sort of guy who will do that.”
The hearings will play out for the next four days before the judiciary panel, with opening statements Tuesday by senators and Kavanaugh, followed by two days of questioning and a final day of testimony from outside witnesses. As Blumenthal, perhaps in a moment of understatement, predicted, “Sparks will fly.”
Kavanaugh’s views on reproductive rights and Roe v. Wade, the landmark 1973 case legalizing abortion, will take center stage. In addition to demanding to know whether he believes the case was correctly decided — a question he is all but certain to refuse to answer — Democrats will question him aggressively about his dissent in the case of Garza v. Hargan, in which he argued that a 17-year-old unauthorized immigrant should not be permitted to have an immediate abortion. They have called Rochelle Garza, the girl’s lawyer, as a witness.
And in this era of #MeToo, Democrats also plan to raise pointed questions about Kavanaugh’s views on sexual harassment. Sen. Mazie Hirono, D-Hawaii, plans to ask Kavanaugh if he has ever sexually harassed anyone — a question she said she asks of all nominees — and will also ask him about a judge for whom he clerked, Alex Kozinski, who abruptly retired last year from a federal appeals court amid harassment allegations.
Republicans intend to push back by highlighting Kavanaugh’s record of hiring female clerks — 25 of his 48 clerks have been women — and by making the case that he has taken pains to mentor women. Among those who will formally introduce him Tuesday are Condoleezza Rice, the former secretary of state, and Lisa S. Blatt, a self-described “liberal Democrat and feminist” lawyer who has advocated Kavanaugh’s confirmation.
“We want to lay the groundwork to show that this has been a judge who is empowering and mentoring women,” said one Senate Republican aide, speaking anonymously to discuss strategy. Kavanaugh has expressed strong support for executive power, hostility to administrative agencies, and support for religious freedom and for gun rights. Democrats will press him on all of these topics, but are expected to drill especially deeply into his assertion, in a 2009 Minnesota Law Review article, that sitting presidents should be “excused from some of the burdens of ordinary citizenship,” including responding to civil and criminal lawsuits.
Those comments are especially relevant in light of the special counsel investigation being led by Robert Mueller. Democrats want Kavanaugh to commit to recusing himself from ruling on matters involving that inquiry — a commitment he will undoubtedly avoid making.
But perhaps the most blistering accusation Democrats will levy is that Kavanaugh was untruthful during his 2006 testimony, when he told the judiciary panel that he was “not involved in the questions about the rules governing” the treatment of terror suspects. A White House spokesman, Raj Shah, has said the testimony “accurately reflected the facts.”
An email, recently made public as part of a trove of Bush records, shows that while working in the Bush White House Counsel’s Office, the future judge volunteered to prepare a senior Bush administration official to testify about the government’s monitoring of conversations between certain terrorism suspects and their lawyers.
Democrats, led by Sens. Richard Durbin of Illinois and Patrick Leahy of Vermont, had questioned Kavanaugh’s veracity even before that email’s release. In an interview, Leahy drew a comparison between Kavanaugh and Judge Jay S. Bybee, who was confirmed to the federal appeals court in 2003 — years before the release of memos showing that, as head of the Justice Department’s Office of Legal Counsel, he had given the CIA its first detailed legal approval for waterboarding and other harsh interrogation techniques.
“Had that come out before the confirmation,” Leahy said, “I doubt very much that he would have been confirmed.”
In a narrowly divided Senate — 50 Republicans, 47 Democrats and two independents who caucus with Democrats — the Kavanaugh nomination could be defeated if all Democrats hang together and one Republican votes no.
But two Republicans most likely to cross the aisle, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, both supporters of abortion rights, have made favorable comments about Kavanaugh. And at least three Democrats — Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin III of West Virginia — are facing re-election in states won by Trump and are under intense pressure to vote in favor. None of those senators are on the Judiciary Committee. Supreme Court confirmation hearings are always as much about political theater as they are about substance, and Kavanaugh’s will be no exception. Several Democrats on the Senate Judiciary Committee — Cory Booker of New Jersey, Kamala Harris of California and Amy Klobuchar of Minnesota — are possible 2020 presidential aspirants and will no doubt take advantage of the free national television exposure.
Kavanaugh, too, will take advantage of that limelight. In the nearly two months since Trump nominated him, he has been a silent presence in Washington, traipsing through the corridors of the Capitol complex, trailed by a retinue of security officers and advisers, as he made the customary “courtesy visits” to senators.
Now he will have a chance to speak for himself, spotlighting his academic pedigree — he has undergraduate and law degrees from Yale — and addressing questions not only about his judicial record, but also the more contentious aspects of his résumé, including his days working for Kenneth W. Starr, the independent counsel who investigated former President Bill Clinton.
While there, he urged prosecutors to pose graphic questions to Clinton about his relationship with Monica Lewinsky — a history that Democrats will invoke as they try to cast Kavanaugh as a partisan political operative.
“Will the real Brett Kavanaugh please stand up?” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, a conservative advocacy group. “You hear very contrasting views. This is a chance for people to see who is telling the truth about Judge Kavanaugh, and what is just spin.”