Colo.’s senators on opposite sides as confirmation battle brews over Kavanaugh
Author: Susan Ferrechio, Washington Examiner - August 16, 2018 - Updated: August 30, 2018
The U.S. Senate is gearing up for a major political battle over the confirmation of Supreme Court nominee Brett Kavanaugh, who is poised to push the high court bench in a conservative direction for the first time in decades.
Kavanaugh was nominated on July 9 and has already met privately with nearly half the Senate, although only a few of them have been Democrats.
The confirmation process begins in earnest the first week of September with a center-stage fight in the Senate Judiciary Committee, which is tasked with interrogating the nominee during a multi-day public hearing.
Committee Chairman Chuck Grassley, R-Iowa, said told the Washington Examiner the panel has been busy collecting Kavanaugh’s million-plus-page paper trail that includes his tenure as a federal judge and a three-year stint in the George W. Bush White House.
“We are just now getting the documents from the Bush White House,” Grassley said. “And they aren’t coming in a million all at once. They are going to roll in.”
The committee in early August released more than 100,000 pages of documents related to the nominee, including over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel from 2001 to 2003, SCOTUSblog reports.
Democrats on the Judiciary panel are already preparing tough questions, many of them focused on their belief that Kavanaugh, currently a judge on the U.S. Court of Appeals for the District of Columbia, could use his elevation to the high court to protect President Donald Trump from Special Counsel Robert Mueller’s investigation into Russian collusion during the 2016 election and whether the Trump campaign was involved.
The Mueller investigation makes for a key difference for this Senate confirmation process from the one Justice Neil Gorsuch endured in March 2017. At that time, the special counsel had not been appointed and there was no investigation into alleged Trump-Russia collusion.
“It’s going to be contentious,” said Majority Whip and Judiciary Committee member John Cornyn, R-Texas.
Following the hearing, Republicans aim to hold a floor vote on the nomination in time to seat Kavanaugh by Oct. 1, which is the start of the Supreme Court’s new term.
Despite vocal objections to Kavanaugh’s nomination by most Democrats, their minority status leaves the party without a realistic path to blocking him.
New Senate rules require only a simple majority to confirm a high court nominee. And while Republicans have only a one-vote margin right now, most political analysts expect all GOP lawmakers to support Kavanaugh and he is likely to win the backing of a few swing-state Democrats.
Sens. Joe Manchin, D-West Virginia, Joe Donnelly, D-Indiana, and Heidi Heitkamp, D-North Dakota, all voted to confirm Gorsuch and many believe the trio will back Kavanaugh because they are running for re-election in states that supported Trump by double digits in 2016.
Manchin is among the few Democrats who have agreed to a private meeting with Kavanaugh — the West Virginia senator sat down with the nominee for two hours in late July.
Now he plans to tune in to Kavanaugh’s confirmation hearing performance.
“We’ll watch it very carefully, and if there are any changes and we need clarification he’ll come back in,” Manchin told the Washington Examiner.
The numbers haven’t stopped Kavanaugh’s Democratic opponents from doing all they can to slow down or even find a way to block him, and it’s likely they’ll try to trip up the nominee during the confirmation hearing.
Their ultimate goal is to chip away at Kavanaugh’s chances of winning support not only from potential backers such as Manchin, but from the Republicans’ two centrist female lawmakers, Susan Collins, of Maine and Lisa Murkowski, of Alaska.
The two women are undecided on Kavanaugh and are delving into his record ahead of both the hearing and planned private meetings with the nominee.
“I’m going through an intensive process right now,” Collins told the Washington Examiner. “I’m meeting every other day to evaluate his record, to review his decisions to read his speeches, to get analysis that is being done for me for each of these meetings on different topics so I get a better sense of his judicial philosophy.”
Colorado’s Sen. Cory Gardner is one Republican who has already made up his mind about Kavanaugh.
He’ll make “an incredible Supreme Court justice,” Gardner said July 26 shortly after meeting the nominee.
“Clearly he is a well-qualified judge who has incredible experience in the federal courts,” the Coloradan said via email. “We had a long conversation about the role of precedent and how a judge should perform on the bench. It’s not about personal opinion, it’s not about personal biases or policy preferences, it’s about looking at the law and ruling on the law and where the law takes you.”
Colorado’s other U.S. senator, Michael Bennet, said shortly after Kavanaugh’s nomination that he had “grave concerns” about the choice.
“When Justice Kennedy announced his retirement, I urged the president to appoint a consensus nominee who could earn broad bipartisan support in the Senate and the confidence of the American people,” Bennet said July 9. “Instead, he chose a nominee whose ideology would shift the court’s majority, thereby threatening fundamental rights and failing to check executive power.”
Democrats, who control 10 of the 21 seats on the Judiciary panel, are expected to grill Kavanaugh about his views on Roe v. Wade, the 1973 Supreme Court ruling legalizing abortion nationwide.
Others will put Kavanaugh through the wringer on Obamacare, where the mandate to cover those with pre-existing conditions is under review in lower courts and could be challenged before the Supreme Court.
“I think there will be several story lines,” Sen. Lindsey Graham, R-South Carolina, one of 11 Republicans on the Judiciary Committee, told the Washington Examiner. “Roe v. Wade; protecting Trump. There will be four or five story lines.”
Democrats, lacking any way to realistically stop Kavanaugh’s confirmation, are digging deep into his history on the federal court and in the Bush White House, hoping to uncover something that can damage his image or perhaps even secure the opposition of Collins and Murkowski.
Kavanaugh’s paper trail includes his time serving as an associate White House counsel as well as staff secretary to Bush. Lawmakers are scouring three hundred court opinions he wrote while on the federal bench as well as college lectures and public discussions, some of which were recorded.
Kavanaugh has also provided a 6,000-page response to the Senate’s 100-page nominee questionnaire.
Sen. Richard Blumenthal, D-Connecticut, who is a member of the Judiciary Committee, said the confirmation inquiry for Kavanaugh will be critical and his entire record must be accessible to lawmakers, including documents from his time working for President Bush.
Kavanaugh was nominated to replace Justice Anthony Kennedy, a GOP appointee who sometimes ruled against conservative interests. But Kavenaugh’s addition is expected to tip the court in a notably more conservative direction at a moment when hot-button issues could come before the bench.
Democrats also believe the Supreme Court could be tasked with deciding if President Trump must testify before a grand jury if requested by Mueller, or whether a sitting president can be indicted.
“He’s going to be the swing vote on a number of critical issues if he is confirmed,” Blumenthal told the Washington Examiner. “Everything from reproductive rights to health care to whether the president has to comply with a subpoena.”
Democrats in August accused the GOP of blocking the release of many of Kavanaugh’s Bush-era papers.
“The National Archives has confirmed that Senate Republicans are keeping a large majority of Judge Kavanaugh’s White House records hidden from the public,” said Senate Minority Leader Chuck Schumer, D-New York.
“This unprecedented suppression of what should be public records in connection with a lifetime appointment to the Supreme Court is clearly intended to keep critical information from the American people, and leads unavoidably to the question: What are President Trump and Senate Republicans hiding?”
Schumer also accused the GOP of filtering the release of the records, complaining that some of them will not be available until October — after Kavenaugh’s hearing.
“This unprecedented process appears to be designed intentionally by Republicans to deny the Senate and the American people the information they need to evaluate this critically important nomination,” Schumer said.
Republicans deny any effort to conceal relevant paperwork. Democrats, they say, are simply attempting to slow walk Kavanaugh’s confirmation at the behest of their progressive base which is pressuring the party leadership to do all they can to stop the nominee.
They also point out that Kavanaugh, like past Supreme Court nominees, is unlikely to agree to Democrats’ demands in the confirmation hearing to tell them how he’ll vote on Obamacare, abortion, Trump’s immunity or any other issue he may face if confirmed.
“I predict he will not be able to answer a lot of those questions because the whole idea is not to forecast how you are likely to decide a case you haven’t heard yet,” Cornyn told the Washington Examiner.
Democrats and outside groups who oppose Kavanaugh are pursuing other avenues to find out how he might rule and are scouring available documents and recordings to try to pin down his views on key issues.
Democrats seized on one such video earlier in August and it’s now likely to play a prominent role in confirmation hearing.
Kavanaugh, in a February 2000 videotaped discussion at Duke University, talked about his time working for the Ken Starr investigation into President Bill Clinton more than two decades ago.
Kavanaugh suggested Starr was reluctant to continue probing the Clinton White House and the Monica Lewinsky scandal but was forced to do so because Congress had abdicated its constitutional duty to conduct the probe.
“Here the Congress of the United States, no doubt recognizing the allegation were not going to make anyone popular who investigated them, which was certainly proven to be true, decided in abdication of their constitutional duty, to defer looking at it until Ken Starr had done the full-scale investigation,” Kavanaugh said in the video.
Sen. Cory Booker, D-New Jersey, who obtained and posted the video, said in an interview the newly uncovered lecture is evidence Kavanaugh cannot be impartial when it comes to Mueller’s investigation of Trump.
Booker, along with several other Democrats, has already announced his opposition to Kavanaugh.
“Of all the people he could have picked, he picked the one person that is showing us, as we continue to unearth his past statements, that he does not believe the President of the United States should be the subject of an investigation, is above the law basically,” Booker said.
Booker is a member of the Senate Judiciary Committee. He is working on a list of questions for Kavanaugh, Booker told the Washington Examiner, and the 2000 Duke lecture will be included in his inquiry.
“I’m not prepared to say what I’m going to be asking,” Booker told the Washington Examiner. “But I can’t imagine that it is not going to be an issue.”
Blumenthal and other Democrats on the Judiciary Committee are likely to seek Kavanaugh’s views on the Mueller probe and whether he thinks Trump must comply with Mueller’s request.
Many Democrats have stated publicly that Kavanaugh should not be involved in any rulings about Trump complying with a Mueller subpoena based on his statements like the one in the video.
They will demand that Kavanaugh make such a promise.
“I think he needs to recuse himself and he needs to commit that he will do so,” Blumenthal told the Washington Examiner.
Kavanaugh will also face questions about other critical cases that might end up before the high court.
Cornyn said he anticipates lawmakers will want to query Kavanaugh on his views about online privacy and government surveillance.
Kavanaugh, who has served on the D.C. Circuit Court for a dozen years, in 2015, tossed out a lower-court ruling that would have blocked the National Security Agency from collecting phone call metadata.
Sen. Mike Lee, R-Utah, long an advocate of limiting NSA surveillance, is among the Judiciary panel members who may ask Kavanaugh about privacy rights protected by the Fourth Amendment and Kavanaugh’s views about it.
“There will be legitimate inquiries about the nominee’s record on things like privacy and government surveillance,” Cornyn said.
Lee, who already has met privately with Kavanaugh, told the Washington Examiner he’s not revealing his list of questions.
“He a wise, articulate, experienced judge and I’m sure he will present himself exceptionally well,” Lee told the Washington Examiner.
Republican leaders said they are determined to hold a vote to confirm Kavanaugh, no matter how loudly Democrats object and attempt to slow down the confirmation process.
Majority Leader Mitch McConnell, R-Ky., warned Democrats that if they try to stall it, he will keep the Senate in session until the November midterm election, which would deprive many vulnerable Democrats of critical weeks of campaigning.
Republican lawmakers believe that barring a big bombshell discovery or confirmation hearing fiasco, Kavanaugh will be an Associate Justice seated on the Supreme Court in October.
“I think the outcome has pretty much been decided,” Cornyn told the Washington Examiner. “But I think there will be a lot of sound and fury.”
Colorado Politics contributed.