The opening statements are done. The stage is set. Today, the real confirmation hearing begins, when Judge Brett Kavanaugh is questioned by members of the Senate Judiciary Committee. The hearing is scheduled to be long, running from 9:30 a.m. until about 9:00 p.m. Questioning is expected to resume Thursday.
Both the Brennan Center (@BrennanCenter) and I (@VBass) will be watching and live tweeting the hearings. Kavanaugh has been thoroughly prepped for the two-day question-and-answer marathon. He will look polite and smart and will bend over backward to appear reasonable and calm. The reality, of course, is that Kavanaugh is a dyed-in-the-wool conservative ideologue who will dramatically tilt the Supreme Court to the far right.
Beneath the surface of the questioners and the questioned, much will be bubbling.
Here are some of the major themes I’ll be watching for:
The Ratio
If you like evasive answers and dancing around an issue, then you’ll love Supreme Court confirmation hearings.
Kavanaugh has been practicing everything from how to react to protesters to how to look neutral and engaged. No flinching, eye rolling, or watch checking allowed.
But the majority of his prep time probably has been spent perfecting something like the following answer. “Senator, I understand the desire to know the views that I might subscribe to personally and to get me to make commitments about how I would rule in future cases. But to answer your questions would risk denying litigants the fair and impartial judge to whom they are entitled and could risk impairing judicial independence by suggesting that a judge is willing to offer promises or previews in return for confirmation.” (The preceding is a mash-up of what Neil Gorsuch said during his confirmation hearing last year.)
Every nominee since Felix Frankfurter in 1939 has voiced something like that sentiment. More recently, it has been given the moniker “the Ginsburg Rule,” in dubious honor of Justice Ruth Bader Ginsburg’s articulation of the following principle at her 1993 confirmation hearing: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
However, there is notable variation in how often nominees invoke the “rule” and how firmly they adhere to it.
That’s where the “responsiveness ratio” comes in. How often does a nominee invoke the Ginsburg rule versus how often does he or she give a firm response? Take Ginsburg as an example. She refused to answer questions about whether the Second Amendment created a personal right to bear arms, whether same-sex education was constitutional, and whether the Court should use heightened scrutiny in sexual orientation discrimination cases.
Yet she was forthright in saying she supportedRoe v. Wade, that heightened scrutiny was appropriate in sex discrimination cases, and that Korematsu v. United States (which upheld the internment of Japanese Americans during World War II) was wrongly decided.
A recent article in Chicago-Kent Law Review by Profs. Lori A. Ringhand and Paul M. Collins, Jr., analyzed the 33 Supreme Court nomination hearings since Frankfurter for each nominee’s responsiveness ratio.
Here are their findings on nominees from Robert Bork to Neil Gorsuch.
| Nominee | Date | Responsiveness Ratio |
|---|---|---|
| Bork | 1987 | 6.93 |
| Kennedy | 1987 | 2.69 |
| Souter | 1990 | 4.74 |
| Thomas | 1991 | 7.03 |
| Ginsburg | 1993 | 5.08 |
| Breyer | 1994 | 4.74 |
| Roberts | 2005 | –4.32 |
| Alito | 2006 | 6.23 |
| Sotomayor | 2009 | 2.92 |
| Kagan | 2010 | –0.49 |
| Gorsuch | 2017 | –5.91 |
To the surprise of absolutely no one who watched the hearings, Gorsuch was particularly evasive. Where will Kavanaugh fall on the spectrum?
Presidential Power and Recusal
Kavanaugh is likely to be most evasive when it comes to his opinions on executive privilege and a constellation of other matters on which he has opined that involve presidential power. He has an unexpectedly deep record on questions like:
- Can a president be criminally indicted? (Kavanaugh has written that Congress should make clear that the president “can be indicted only after he leaves voluntarily or is impeached.”)
- Was United States v. Nixon, rejecting executive privilege claims when the president was subpoenaed for his Oval Office tape recordings in a criminal investigation rightly decided? (Kavanaugh has said “Maybe Nixon was wrongly decided — heresy though it is to say so…. Maybe the tension of the time led to an erroneous decision.”)
- Was Morrison v. Olson, which upheld the constitutionality of the independent counsel and has implications for the constitutionality of Special Counsel Robert Mueller’s appointment, properly decided? (“It’s [the special counsel statute] been effectively overruled but I would put the final nail in,” Kavanaugh once vowed.)
Two years ago, opinions on these matters might have seemed purely academic. But today, they are pertinent to cases that directly and imminently matter to the man who is Kavanaugh’s single most important benefactor, President Trump.
Democratic senators will push hard on these opinions and try to get Kavanaugh to say what he really believes. They are also likely to argue that Kavanaugh’s views in these areas are already so pronounced that even if he does not discuss them during his confirmation hearing he should recuse himself when they come before the Court. But Kavanaugh has already signaled he will not step aside from cases involving the president. That position only increases his need to bob and weave when asked to reiterate opinions he has already expressed.
Rightly Decided, Settled Law
Senators and nominees have settled on a two-step dance to grapple with the “Ginsburg Rule.” It goes something like this:
Senator: Was Petitioner v. Petitionee rightly decided?
Nominee: It is settled law.
Senator: Sure, but do you think it’s a good decision?
Nominee: It is a very important precedent.
Senator: Come on.
Nominee: It has been reaffirmed many times, I can say that.
Senator: Sigh. I give up.
In 1986, Antonin Scalia declined to even answer if Marbury v. Madison was rightly decided: "I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison," he told the panel. Gorsuch was a bit more forthcoming. He finally conceded the case was rightly decided after two rounds of questioning. After some prodding, he also came around to agreeing that Brown v. Board of Education was a good decision.
But since Gorsuch’s confirmation hearing, lower court nominees appearing before the Judiciary Committee have come under fire for refusing to even answer whether Brown was correctly decided.
Kavanaugh will have been carefully coached about this. Watch closely how he navigates these waters. He has apparently told Sen. Susan Collins (R-Maine) that Roe v. Wade is “settled law.” This, of course, is a cop-out. It’s settled law until it isn’t. Kavanaugh will have a say in how long it remains settled law.
How far will Kavanaugh go along the settled law/rightly decided continuum vis-à-vis Marbury, Korematsu, Brown, Roe, or Obergefell v. Hodges, the more recent seminal Court decision holding that the Fourteenth Amendment requires states to recognize gay marriage? Will he subtly signal in the way he shifts his answers to the settled law/rightly decided question, or will he seek safety in consistently refusing to join the issue at all?
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
(Image: Chip Somodevilla/Getty)