Brett Kavanaugh starts his confirmation hearing Tuesday with a clear political path to the Supreme Court, if he can avoid a major misstep when Democrats press him on controversial topics like abortion rights, health care and the criminal investigations swirling around President Donald Trump.
The grilling won’t change minds on the Senate Judiciary Committee, which appears on track to approve Kavanaugh with an 11-10 party-line vote. Instead, Democrats will aim to sway a handful of centrist senators who aren’t on the committee but could cast key confirmation votes on the Senate floor — as well as residents in their states.
At stake is the seat vacated by Justice Anthony M. Kennedy, a conservative whose penchant for siding with the Supreme Court’s liberal wing made him a pivotal vote on issues such as abortion, affirmative action and LGBT rights. Kavanaugh, 53, has shown an unyielding commitment to a conservative legal approach as an appeals court judge in Washington. He could solidify the Supreme Court’s rightward tilt for decades to come on those issues and more.
“If the American people understand better what’s at stake, it will help determine whether they contact their senators and tell them to vote ‘no,’” said Connecticut Sen. Richard Blumenthal, a Democratic Judiciary Committee member. “There are just so many consequences potentially from this appointment.”
Yet Republicans will have a 51-49 advantage when a successor to the late Sen. John McCain is named, enough for a majority vote and confirmation of Kavanaugh without any Democratic votes. The two Republicans considered the most likely to vote against Kavanaugh, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, said nothing in the weeks leading up to the hearing to suggest they would cross party lines.
Watch: Democratic Delays, 2020 Hopefuls and Don't Forget About the Issues — What We're Watching at Kavanaugh's Hearing
And at least five Democrats face pressure just ahead of the midterm elections to support Kavanaugh, including Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Claire McCaskill of Missouri and Joe Manchin III of West Virginia, four senators up for re-election in states won by Trump in the 2016 presidential election. The vote is also a tough one for Alabama Sen. Doug Jones, who represents another state won by Trump.
“I think we’ll get two Democratic votes and maybe more,” said Louisiana Sen. John Kennedy, a Republican panel member. “I think the Democrats realize that this guy is qualified and it’s going to be hard to stop him. And it’s going to be hard to stop some of the members of their own party from voting for him.”
Kavanaugh, a former George W. Bush administration official and a judge on the U.S. Court of Appeals for the District of Columbia Circuit for a dozen years, has been preparing for weeks for the four-day hearing.
Tuesday will see a round of introductions and opening statements. Questions from committee members will dominate Wednesday, and testimony from outside groups will finish off the week.
Democrats have plenty of topics to explore during the televised hearings, which will be closely watched as the week’s main event in Washington. Kavanaugh has handed down around 300 rulings on some of the nation’s most consequential legal fights — including gun rights, health care, consumer protections and the environment. He gave numerous outside speeches. He worked as part of independent counsel Kenneth W. Starr’s legal team during the push to impeach Bill Clinton, and Democrats have sounded the alarm about his views on executive power and whether a sitting president can be investigated.
Most likely Kavanaugh will spend his time before the committee insisting he won’t comment on particular issues that might come before the court in the future, such as challenges to states that try to limit access to abortion. That means he’ll fend off questions about his views on Supreme Court precedents, such as Roe v. Wade, the landmark 1973 decision legalizing abortion.
Committee member Richard J. Durbin conceded that it will be hard to pry information from Kavanaugh.
“It’s curious to me how these sitting judges write all these law review articles, give all these speeches, get in great detail about all these issues, and then the minute they get under the Capitol dome, they clam up, they don’t have a word to say,” the Illinois Democrat said. “I know that’s the first rule they give to any nominee before the Senate Judiciary Committee, is, ‘Say nothing. And say it as often as possible.’”
Committee Chairman Charles E. Grassley of Iowa already turned aside requests to delay the hearings from Democrats who complained that the Senate did not receive a full array of documents from Kavanaugh’s work as a White House lawyer and staff secretary during the George W. Bush administration. The document complaints intensified over the weekend, after the Trump White House, citing executive privilege, said the president would withhold roughly 100,000 such pages from the panel.
Watch: Senate Democrats Demand Kavanaugh Documents
Democrats also aired concerns about confirming a justice who might ultimately decide cases about special counsel Robert S. Mueller III’s investigation into connections between the Trump campaign and Russian operatives during the 2016 election.
Senate Majority Leader Mitch McConnell has said he wants Kavanaugh through the confirmation process by the start of the Supreme Court’s next term on Oct. 1. Without a ninth justice, the court is for the moment evenly split between liberals and conservatives, with some politically charged issues potentially barreling its way.
If confirmed, Kavanaugh would be Trump’s second appointment to the Supreme Court. The Senate confirmed Justice Neil Gorsuch to the bench in April on a 54-45 vote.