Need to know: what is at stake in Brett Kavanaugh’s confirmation
Who is Brett Kavanaugh?
Brett Kavanaugh, a Court of Appeals Judge and former White House staff secretary under G. W. Bush, is Trump’s nomination to fill the Supreme Court vacancy left by Anthony Kennedy after his resignation in June. Trump and his advisors are said to view him as an ‘originalist’: a supporter of a conservative judicial philosophy pioneered by Clarence Thomas (who still serves on the Supreme Court bench) which takes its inspiration from the original meaning of the constitution and its amendments interpreted solely in the context in which they were written.
What has happened so far?
The Senate Judiciary Committee confirmation hearings began on September 4th and finished on September 7th. From the outset, the hearings were beset with controversy and disrupted by protesters.
Why were they so controversial?
Just hours before the hearings were due to begin, 42,000 pages of documents from Kavanaugh’s time in the Bush White House were released, leaving no time for the senators to read them before the hearings began. Moreover, it then became clear that the Trump White House had used its executive privilege to prevent the release of over 100,000 more pages. Senate Minority Leader Chuck Schumer called for a delay to allow senators to consider the material that had just been released, but this was not granted. Other Democrat senators highlighted the lack of transparency in the process, and many referenced the fact that Trump had openly declared he would nominate someone ‘anti-choice and pro-gun’.
What happened on each day?
Day one became rather absurd rather quickly. Republican senators Chuck Grassley and Mike Lee invoked a spurious ‘Ginsburg rule’, a rule where they say you can’t ask a supreme court nominee about how they might rule in the future on matters of controversy on the basis that Ruth Bader Ginsburg, a famous liberal supreme court justice, made a symbolic refusal to talk about abortion in her preliminary interrogation. Now that’s not quite true – in practice, she did talk at length about Roe v. Wade in the full course of the hearing.
Ted Cruz then referenced a 2013 lawsuit ‘Little Sisters of the Poor’ to claim the Obama administration had forced Catholic nuns to ‘pay for abortion-inducing drugs’, despite the legal fact that the administration had made accommodations for organisations whose religion made them opposed to birth control. To finish the bizarre proceedings of the first day, Kavanaugh refused to shake the hand of Fred Guttenberg, the father of a girl who was killed in the Parkland shooting – it’s unclear why he refused.
Days two and three involved Senators putting questions to Kavanaugh, focusing on his judicial philosophy, his beliefs on abortion, and his role in the ‘war on terror’ as a part of the post-9/11 Bush administration. Protests continued both inside and outside the court room, resulting in the capital police having to remove demonstrators from the room. Kavanaugh remained vague on the issue of abortion, repeatedly insisting that Roe is precedent; something that means little as the Supreme Court has the power to overturn precedent. Kavanaugh also evaded questions about the presidential pardon, leading many to comment that he may not believe in a judiciary which challenges the executive branch of government.
Day four was devoted to outside witnesses giving testimony in favour or against the confirmation, with Democrat speakers placing emphasis on access to abortion and Republicans attesting to his character and likability.
What happens now?
The senators of the Judiciary Committee are scheduled to vote on 20th September. The Senate is currently 51-49 in favour of the Republicans, and they will need 50 votes and Pence’s tie-breaker to confirm the nomination.
Most senators will vote with their party, but with mid-term elections looming in November, some might feel the need to appease their constituents. Republicans in more moderate states may feel the need to vote against, whilst Democrats in more traditionally red states may vote for the nomination.
There are reportedly seven senators on the fence: two Republican and five Democrat.
If Mike Pence does have to break a tie, it would be the first time in US history a Vice-President has had to do so on a Supreme Court nomination.
How does this confirmation hearing differ from others?
There is one striking way in which this confirmation process is different: after Democrats filibustered the confirmation of Neil Gorsuch in 2017, Senate Republicans changed the rules of the Senate to end the filibuster for Supreme Court confirmations.
More generally, the acrimony surrounding Kavanaugh’s nomination and confirmation reflects a growing spirit of partisanship and division in US politics. In the era before Trump, Sonia Sotomayor was confirmed in 2009 with a vote of 68-31, and Elena Kagan in 2010 with 63-37. Even longer ago, Ruth Bader Ginsburg was confirmed by a vote of 93-6 in 1993.