What to Expect in Kavanaugh’s Senate Hearings

COMMENTARY Courts

What to Expect in Kavanaugh’s Senate Hearings

Aug 31st, 2018 4 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
Supreme Court nominee Brett Kavanaugh's confirmation hearing will commence on Tuesday, Sept. 4. ALEX WROBLEWSKI/REUTERS/Newscom

The Senate Judiciary Committee’s hearing for Supreme Court nominee Brett Kavanaugh begins at 9:30 a.m. on Tuesday, Sept. 4. Here’s what you can expect.

The committee has 21 members—11 Republicans and 10 Democrats. Sen. Chuck Grassley, R-Iowa, is the chairman and Sen. Dianne Feinstein, D-Calif., is the ranking member, or lead member of the minority party.

The hearing will last for four days, the same length as seven of the previous 10 Supreme Court nominees. The other three—Justices Stephen Breyer (1994), David Souter (1991), and Anthony Kennedy (1988)—had three-day hearings.

Day One will kick off with a 10-minute opening statement by each member of the Judiciary Committee. Some of these may address the wider judicial context for this nomination by looking at the federal courts in general. Others will likely focus on procedural issues related to this particular nomination, complaints about lack of access to more information, that sort of thing.

Some senators will describe the specific questions they will ask Kavanaugh and the kind of answers they expect. The rumored presidential ambitions of at least two Democrats, Cory Booker of New Jersey and Kamala Harris of California, may shape how they speak on Day One.

Kavanaugh will be in the spotlight on Day Two and Day Three, offering his own prepared statement and answering senators’ questions. Each senator will have 30 minutes for the first round of questions and 20 for each subsequent round.

Day Four will feature testimony from the American Bar Association about its rating of Kavanaugh and witnesses supporting and opposing the nomination. The previous several Supreme Court confirmation hearings included between 25 and 30 witnesses.

The debate over judicial appointments is really a debate over judicial power, over what judges in general, and Supreme Court justices in particular, are supposed to do in our system of government. This debate will shape everything that happens during the hearing.

One side of this debate embraces the way America’s Founders designed the judicial branch to function. Judges must take the law—such as the Constitution and statutes—as it is written and impartially use it to decide the cases before them. Impartial judges care about following the same objective process in each case to reach its result, removing their personal views and preferences as much as possible from the judicial equation.

The other side of this debate rejects the way America’s Founders designed the judicial branch to function. Judges are political in this view and might use different approaches in different cases because they focus not on the judicial process, but on judicial results: who wins, who loses, which political interests are served. If achieving politically correct results requires that judges use their personal views and preferences to decide cases, so be it.

Statements, questions, and answers by senators, Kavanaugh, and witnesses will reveal a preference for either an impartial or a political judiciary. Listen for it.

For as long as Supreme Court nominees have appeared before the Judiciary Committee, some senators have always tried to find out how they would approach certain issues or decide certain kinds of cases.

During the hearing, senators will ask Kavanaugh about his views on many things, including issues that might come before the Supreme Court in the future. Like dozens of nominees before him, Kavanaugh will not take the bait.

In 1939, for example, nominee Felix Frankfurter said answering such questions would be “improper,” “in bad taste,” and, more importantly, “inconsistent with the duties of the office to which I have been nominated.”

In 1955, nominee John Marshall Harlan said that not only would expressing his views on such issues be “inappropriate,” but that “if I undertook to do so that would seem to me to constitute the gravest kind of question as to whether I was qualified to sit” on the Supreme Court.

A dozen years later, nominee Thurgood Marshall noted that every Supreme Court nominee has “deem[ed] it inappropriate to comment on matters which will come before him as a justice.”

In 1993, nominee Ruth Bader Ginsburg offered a clear explanation for this position. It would be injudicious, she said, to “say or preview” not only how she would vote on issues, but also “what I would say and how I would reason on such questions.” A judge who is “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.”

Last year, nominee Neil Gorsuch said that offering his personal views on issues that could come before the Supreme Court would “risk violating my ethical obligations as a judge, denying litigants the fair and impartial judge to whom they are entitled, and impairing judicial independence by suggesting that a judge is willing to offer promises or previews in return for confirmation.”

This tug of war is an example of the conflict between an impartial and a political view of the judiciary.

Expect Kavanaugh, who is already a judge on a lower federal court, to defend his impartiality by declining to discuss issues that could come before him on the Supreme Court. Expect senators who care more about winners and losers than an impartial process to demand that Kavanaugh fess up and tell them how he will vote on issues those senators care about.

Senate Minority Leader Chuck Schumer, D-N.Y., has already said this is coming. On July 9, before he even knew who the nominee would be, Schumer said that “U.S. senators and the American people should expect an affirmative statement of support” on certain issues “from the next Supreme Court nominee.”

There’s the conflict. As Gorsuch put it, a nominee can’t even suggest that he is offering “promises or previews” in return for confirmation. Schumer says Kavanaugh will have to give “an affirmative statement of support” for particular legal positions in order to get support for confirmation. Those lines could not be drawn more clearly.

Next week’s hearing will be like a job interview for a job applicant by an evaluation committee that is divided about the job description for the position that needs to be filled. Keep that in mind as you watch and consider whether the job of Supreme Court justice should be impartial or political.

This piece originally appeared in The Daily Signal