On Tuesday morning, the Senate Judiciary Committee will begin confirmation hearings for President Trump's second Supreme Court nominee, Brett Kavanaugh. Democrats, who are demanding access to more of Kavanaugh's three million documents from his time working in George W. Bush's White House, are expected to press Kavanaugh for his views on abortion rights, gun laws, campaign finance restrictions, and regulations, all issues on which Kavanaugh's public record indicates he holds conservative or very conservative opinions. But with President Trump heading for a showdown with Special Counsel Robert Mueller, "executive power will be the elephant in the hearing room," says Justin Wedeking at The Washington Post.
Supreme Court nominees have been increasingly reticent to answer questions about their views on topics, and senators have become much more aggressive in their questioning, since the Senate decided to start televising confirmation hearings with former Supreme Court Justice Sandra Day O'Connor in 1981, Wedeking says. And since in 2017, before Justice Neil Gorsuch's confirmation vote but after his hearings, "Senate Republicans changed the chamber's rules so that the minority party could not filibuster to block a vote on Supreme Court nominees," Kavanaugh may "feel he can be less forthcoming that earlier nominees" because he only needs 51 votes in the GOP-controlled chamber.
Democrats have seen only about 20 percent of Kavanaugh's Bush White House records, and President Trump, claiming broad privilege, has blocked the release of more than 100,000 documents approved for release by the Bush White House lawyer vetting the papers. Judiciary Committee Chairman Charles Grassley (R-Iowa) accused Democrats of pursuing a fishing expedition, but Trump's claim of executive privilege on documents from when Kavanaugh was Bush's staff secretary has Democrats curious. "I'm willing to wager there's a smoking gun here," said Sen. Richard Blumenthal (D-Conn.). "What are they concealing? What are they afraid the American people will see?" Peter Weber
On Monday, the National Archives released an August 1998 memo Brett Kavanaugh wrote to his boss, Independent Counsel Kenneth Starr, slamming President Bill Clinton and posing 10 questions he wanted Starr's investigators to ask Clinton. Seven of the 10 questions sought confirmation of graphic details about Clinton's affair with intern Monica Lewinsky, including questions about oral sex and masturbation. The memo also reflected the growing tensions between Clinton and Starr's office — Kavanaugh, now President Trump's nominee for the Supreme Court, was an associate counsel.
"I am strongly opposed to giving the president any 'break' in the questioning regarding the details of the Lewinsky relationship" unless he "resigns" or "confesses perjury," Kavanaugh wrote to Starr. He criticized Clinton's "frivolous privilege claims" and said "he has lied to his aides. He has lied to the American people. He has tried to disgrace you and this office with a sustained propaganda campaign that would make Nixon blush."
The strident tenor and vulgar content of the memo provide "a contrast to the genial, soft-spoken nominee who chooses every word carefully as he makes the rounds of the Senate before his Sept. 4 hearing before the Judiciary Committee," says The Washington Post, which obtained the memo through a Freedom of Information Act request. It also highlights the stark evolution Kavanaugh has gone through from backing vigorous prosecution of presidents to arguing, after five years in the George W. Bush White House, that presidents should only be prosecuted after they leave office.
This shift, newly relevant as Trump clashes with Special Counsel Robert Mueller, will likely be raised during Kavanaugh's confirmation hearings. "Either his views really have changed over time to reflect far more of a belief in the importance of protecting presidential prerogative," University of Texas law professor Stephen Vladeck tells the Post, "or his views on presidential prerogative differ depending on what he thinks about the current officeholder." Peter Weber
Support for President Trump's second Supreme Court nominee, U.S. Appellate Judge Brett Kavanaugh, is lower than the support for failed 2005 justice nominee Harriet Miers and only slightly higher than the support for approving failed nominee Robert Bork, the last nominee to come up short in a Senate confirmation vote, according to a CNN/SSRS poll released Thursday. Including Bork, Kavanaugh is the only nominee whom a plurality of Americans don't want to see confirmed, the poll found.
The poll found that 37 percent of U.S. adults want the Senate to confirm Kavanaugh versus 40 percent who don't. Miers, whose nomination former President George W. Bush pulled amid an outcry from Republicans, had 44 percent of the public behind her and 36 percent opposed; Bork was supported by 31 percent of Americans but opposed by only 25 percent. The third failed nominee on CNN's list, Merrick Garland, drew support from 52 percent of adults and opposition from 33 percent; he never got a confirmation hearing or vote in 2016 because Republicans did not allow it.
There is a strong gender divide in the Kavanaugh numbers, possibly because he is widely seen as the key vote to overturn Roe v. Wade. Only 28 percent of women want the Senate to confirm Kavanaugh, including 6 percent of Democratic women, 28 percent of independent women, and 71 percent of GOP women. The Senate Judiciary Committee has scheduled a confirmation hearing for Sept. 4, but Democrats say they are preparing to sue the National Archives for withheld records from Kavanaugh's time in the Bush White House. CNN's poll was conducted by SSRS Aug. 9-12 among 1,002 adults; it has a margin of sampling error of ±3.9 percentage points. Peter Weber
When it comes to filling the soon-to-be-empty seat on the Supreme Court, Senate Majority Leader Mitch McConnell (R-Ky.) is playing hardball.
In a private meeting Wednesday, McConnell apparently told senior Republicans he may keep pushing back the confirmation vote for Supreme Court nominee Brett Kavanaugh until right before the November midterms, sources tell Politico. Why? Because Democrats keep trying to surface the nominee's long paper trail, and McConnell, it seems, is sick of it.
Even before President Trump had announced his nominee to replace retiring Justice Anthony Kennedy, Democrats were dead-set on a strategy of resistance, warning Trump's pick could cement a conservative majority on the nation's highest court and spell disaster for issues like reproductive rights. Since then, Democrats have been requesting every piece of Kavanaugh's records in an attempt to find something they can use to fight his confirmation.
McConnell is apparently ready to retaliate. He's already canceled the Senate's August recess, and is looking to drain Democrats' campaign time even more by delaying Kavanaugh's confirmation vote, per Politico. The delay would mean red-state Democrats wouldn't be able to leave the Capitol and utilize valuable campaign time until the Kavanaugh vote, and his potential confirmation would serve them a crushing defeat just days before voters head to the polls.
If Democrats manage to flip the Senate this fall, that could give them the 50 votes they need to defeat Kavanaugh's nomination. But McConnell has already pledged to hold the vote before the midterms, even if it's at the very last minute. Kathryn Krawczyk
Brett Kavanaugh hinted at his actual views on Roe, public religion, police searches in a speech last fall
Last September, Supreme Court nominee Brett Kavanaugh gave a speech about late Chief Justice William Rehnquist at the conservative American Enterprise Institute, and he had a lot of nice things to say about Rehnquist's opposition to Roe v. Wade, rejection of "a wall of separation between church and state," and push to weaken the rights of suspects against police, the Los Angeles Times reports. The speech is illuminating because Kavanaugh is "not writing as a judge," said Drexel University law professor David S. Cohen. "This is him telling us his own views. And while he doesn't come out and say 'the dissent is right,' it is pretty clear he agrees with Rehnquist" that Roe was a mistake.
Kavanaugh called Rehnquist his "first judicial hero," and explained why he believed the justice's dissent in the 7-2 Roe decision was correct. "It is fair to say that Justice Rehnquist was not successful in convincing a majority of justices in the context of abortion, either in Roe itself or in later cases such as Casey," Kavanaugh said. "But he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation's history and tradition." Kavanaugh said Rehnquist also moved the ball on dismantling the "wall" between church and state — a bad metaphor "based on bad history" — and weakened but did not end the "exclusionary rule" that prohibits police from using illegally obtained evidence.
"All three of areas of law — abortion, religion, and police searches — are likely to be in flux if Kavanaugh is confirmed and joins the high court this fall," the Times notes. And although Kavanaugh did not mention it, Justice Anthony Kennedy — whom Kavanaugh would replace — cast the deciding vote against Rehnquist's efforts to overturn Roe in Planned Parenthood v. Casey, allow prayer at public school events, and gut the "exclusionary rule." Read more at the Los Angeles Times. Peter Weber
Major League Baseball is perhaps the only affordable major pro sport left in America, but Supreme Court nominee Brett Kavanaugh still managed to max out three credit cards and a Thrift Savings Plan loan buying tickets to see the Washington Nationals in 2016, the White House said Wednesday. In financial disclosure forms, Kavanaugh reported having $60,000 to $200,000 in debt in 2016, not including his $865,000 mortgage, and White House spokesman Raj Shah tells The Washington Post that President Trump's nominee went into debt buying Nats season tickets and playoff game tickets for himself and a "handful" of friends, and also on home improvements.
Kavanaugh paid off the debt in 2017, or at least enough of the debt to get it below the reporting threshold, and he has stopped buying season tickets, Shah said. The financial disclosure forms do not require that Kavanaugh disclose the source or nature of his payments, but as a federal appellate judge, Kavanaugh earns about $220,000 a year, and he made $27,000 teaching at Harvard Law School in 2017, according to the disclosures. Shah said the undisclosed number of unidentified friends paid Kavanaugh back for their share of the tickets. Kavanaugh has a habit of going into debt, presumably to watch baseball, and also reported $60,000 to $200,000 in 2006, the year he was confirmed as an appellate judge.
In all, Kavanaugh reported assets of between $15,000 and $65,000, which does not include a number of things, like his house in Chevy Chase or his federal retirement account. You can read more about Kavanaugh's assets and liabilities at The Washington Post. Peter Weber