Politics

Supreme Court Nominee Kavanaugh’s Responses Reveal Views

Questionnaire part of confirmation process

Supreme Court nominee Brett Kavanaugh, right, and Sen. Ted Cruz, R-Texas, conduct a photo-op in Russell Building before a meeting on July 17. (Photo By Tom Williams/CQ Roll Call)

Supreme Court nominee Brett Kavanaugh described his volunteer work, his most important decisions and how President Donald Trump picked him in paperwork submitted as part of the Senate Judiciary Committee’s confirmation process.

The questionnaire is a standard part of the confirmation process, and nominees can use it to bolster their case. For instance, Kavanaugh, when asked to list his 10 most important decisions, listed nine cases in which the Supreme Court later agreed with the positions he took as a federal appeals court judge.

Kavanaugh included the 10th case, he said, “because of what it says about anti-discrimination law and American history.” It was his concurring opinion in a 2013 workplace discrimination case, and he told the committee he wrote that “calling someone the n-word, even once, creates a hostile work environment.”

“My opinion explained: ‘No other word in the English Language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans,” Kavanaugh wrote in the questionnaire released Saturday by the Judiciary Committee.

Such details could be seen as an effort to push back against advocacy groups who oppose him. The NAACP Legal Defense Fund, which opposed Kavanaugh’s appointment to his current spot on the U.S. Court of Appeals for the District of Columbia Circuit in 2006, has called Kavanaugh “a dangerous ideologue whose extreme views on civil rights would solidify a far right majority on the Supreme Court.”

But Democrats will dig through the questionnaire for things to grill Kavanaugh on during confirmation hearings, expected in the next two months. Here are five topics from the questionnaire and the thousands of pages of included materials that are likely to be asked about during the confirmation hearing:

Selection process

The White House only waited a few hours to call Kavanaugh after Justice Anthony M. Kennedy’s retirement was announced the afternoon of June 27 — and Democrats already have plenty of questions about the speed of the selection process.

The Supreme Court sent out an announcement about Kennedy’s decision to step down at 2 p.m that Wednesday. Kavanaugh said in the questionnaire that White House Counsel Donald McGahn called him “in the late afternoon.” He met with McGahn two days later, on a Friday, and interviewed with Trump on Monday, July 2.

“I spoke to President Trump by phone on the morning of Sunday, July 8,” Kavanaugh wrote. “On the evening of Sunday, July 8, I met with President Trump and Mrs. Trump at the White House. During that meeting, the President offered me the nomination, and I accepted.”

That timeline seems off kilter with some of the first words Kavanaugh said when accepting the nomination: “No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”

Minority Leader Charles E. Schumer and other Senate Democrats have criticized Trump for outsourcing his Supreme Court pick to two conservative advocacy groups — the Federalist Society and the Heritage Foundation, which put together a list of 25 potential nominees. The latest list, released in November, included Kavanaugh for the first time.

Sen. Dianne Feinstein of California, the committee’s top Democrat, said that two-week selection process was unusual.

“Historically, that process takes at least a month, and at times it has taken several months,” Feinstein said. “What this suggests is that the selection of Judge Kavanaugh was pre-ordained and the usual vetting, which accompanies a nomination, perhaps was not done adequately.”

Abortion rights

Kavanaugh submitted an essay from 2017 that includes two landmark abortion rights cases —Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992 — as part of “the general tide of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”

Democrats already had been raising concerns about whether Kavanaugh would seek to overturn the Roe and Casey decisions that established a constitutional right to abortion, and the comments will fuel that questioning.

Kavanaugh’s comments in the essay about former Chief Justice William Rehnquist include praise for a 1997 case, Washington v. Glucksberg, where the Supreme Court rejected the claim that there was a constitutional right to assisted suicide.

But in doing so, Kavanaugh contrasted that decision with the Roe and Casey decisions. And he said the Glucksberg decision was important in “limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.”

Watergate tapes

Kavanaugh in a 1999 discussion, suggested overturning the landmark Supreme Court decision in United States v. Nixon from 1974, where the court ruled 8-0 that President Richard Nixon did not have an “executive privilege” to avoid a subpoena for recordings of conversations in the Oval Office.

The case has obvious connections to the Trump administration, which has been battling against Special Counsel Robert S. Mueller III’s probe of connections between the Trump campaign and Russian operatives who interfered in the 2016 presidential election. Democrats have pointed out that Kavanaugh, if put on the Supreme Court, could face a similar question about Trump.

“But maybe Nixon was wrongly decided — heresy though it is to say so,” Kavanaugh said during a discussion about attorney-client privilege, according to a transcript printed in The Washington Lawyer. “Nixon took away the power of the president to control information in the executive branch by holding that that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.”

Kavanaugh later in the 1999 discussion said the Supreme Court in the Nixon case apparently had the sense that the president was not acting in the official interest of the country.

The Supreme Court decision led to the release of the Watergate tapes, and Nixon resigned about two weeks later.

Previous testimony

Kavanaugh included a transcript of his 2006 confirmation hearing as part of a 1,197-page submission of his previous statements and testimony. Illinois Democratic Sen. Richard J. Durbin is ready to ask him some follow-up questions.

“I’ve been waiting 11 years for the answer to a letter that I sent Judge Kavanaugh to respond to his own sworn testimony before this committee,” Durbin said at last week’s Judiciary Committee meeting.

Durbin asked about Kavanaugh’s role while in the White House counsel’s office on the appeals court nomination of William Haynes, which the senator at the time called “the architect of the administration’s discredited detention and interrogation policies.”

The transcript says Durbin asked, “What did you know about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies?” And Kavanaugh responded, “Senator, I did not — I was not involved and am not involved in the questions about the rules governing detention of combatants or — and so I do not have the involvement with that.”

Media outlets later reported Kavanagh had been involved in “a heated meeting” in 2002 in the attorney general’s office about the potential need to provide lawyers to detainees. Durbin wrote a letter to Kavanaugh asking to explain the “apparent contradiction” and how it “appears that you misled me, the Senate Judiciary Committee, and the nation.”

The Washington Post last week confirmed that Kavanaugh participated in the meeting, and Durbin highlighted the newspaper’s reporting that the argument “became so loud and heated that one of the lawyers slammed his fist on the table, causing a tray of nuts to fly into the air.”

Back in 2007, Sen. Patrick J. Leahy, the Judiciary Committee chairman at the time, referred Kavanaugh’s alleged misstatements to then-Attorney General Alberto Gonzales for possible prosecution.

Garland support

Kavanaugh, in disclosing speeches he had given, included media reports of his words of support for the Supreme Court nomination of Merrick Garland, the chief judge of the D.C. Circuit who was nominated by President Barack Obama in 2016 but blocked by Senate Republicans.

Democrats still harbor resentment for that move, and brought it up many times during the confirmation hearing Justice Neil Gorsuch, Trump’s first high court pick.

Kavanaugh is quoted as saying Garland “is supremely qualified by the objective characteristics of experience, temperament, writing ability, scholarly ability for the Supreme Court.”

But he added: “Obviously questions about the process of what’s going on and the direction of the Supreme Court and what role judicial philosophy should play in the confirmation process are really above my pay grade.” 

Watch: Trump Nominates Judge Brett Kavanaugh to the Supreme Court

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