Senate confirmation hearings for Supreme Court nominees are often described as “battles,” but they usually turn out to be dramatic theater rather than a theater of war. Nominees are more than happy to discuss abstract legal principles or their previous rulings as judges, but they invariably decline to answer questions about how they would rule on specific cases or controversies in the future.
The two-step dance between senators and nominees is known today as the Ginsburg standard, after Justice Ruth Bader Ginsburg, as a result of John Roberts’s confirmation hearings in 2005. His supporters argued that because Senate Democrats did not press Ginsburg after she declined to answer certain questions about her views in her 1993 hearing, he should receive a similar amount of latitude from them. Since then, senators on both sides have generally recognized this standard, even if they still try to trip up a nominee from the opposing side.
This standard is not necessarily a bad thing. It helps preserve the American tradition of judicial independence by denying senators the opportunity to extort pledges or promises in certain cases before approving a nomination. A judge who forecasts how he or she would rule in specific matters would also deprive future litigants of their right to have cases heard before a fair and impartial court.
But the Ginsburg standard also turns judicial confirmation hearings—and especially Supreme Court confirmation hearings—into a tedious, rote affair. Senators will ask a nominee’s views on subjects ranging from abortion rights to marriage equality to affirmative action. The nominee will decline to answer, citing the same reasons given by prospective justices before them. Senators will ask whether the nominee thinks cases like Roe v. Wade are still the law of the land. The nominee will give a heartfelt answer on how the American legal system values the weight of legal precedent and avoid saying how he or she would change those precedents.
Expect more of the same when Brett Kavanaugh, President Donald Trump’s pick to replace retiring Justice Anthony Kennedy, appears before the Senate Judiciary Committee in early September. Senators will question him extensively about the cases and decisions in which he’s taken part in his twelve years of service on the D.C. Circuit Court of Appeals. Fortunately for Democrats, who will begin meeting with Kavanaugh privately on Wednesday after a weeks-long boycott, there are other ways to explore his views on major issues than to probe his time on the bench. He has an extensive record of government service predating his judicial career that is worth deeper scrutiny before handing him a lifetime seat on the Supreme Court.
With that in mind, here are some questions that Democrats could ask Kavanaugh that he might feel compelled to answer, rather than parry.
One issue beyond Kavanaugh’s jurisprudence that senators can raise is sexual harassment in the federal judiciary. Kavanaugh once clerked for former Judge Alex Kozinski, who served in the Ninth Circuit Court of Appeals. Kozinski was one of the most influential federal judges of his era, for both his judicial writings and for his role as a “feeder”—one of the select few judges whose clerks often go on to become Supreme Court clerks. Last fall, at least 15 women came forward with accounts of sexual harassment by Kozinski, some of whom were his former clerks. He resigned from the bench in December.
Since then, Hawaii Senator Mazie Hirono has asked every judicial nominee whether they have committed sexual harassment in their careers during their confirmation hearing. Kavanaugh will almost certainly be asked the same question by Hirono. Because of his past work for Kozinski, he could also face scrutiny for what he saw during his Ninth Circuit clerkship and what he did about it. The questions could include:
- When you clerked for Judge Alex Kozinski, did you witness any conduct by the judge or by any other employees for the court that could be described as sexual harassment? Did anyone ever describe incidents of sexual harassment, sexual assault, or other inappropriate behavior by him or other employees of the court to you?
- While working in the office of the independent counsel, in private legal practice, or in the White House, did you witness what could be described as sexual harassment or hear allegations from coworkers of inappropriate behavior from any other employees?
- Since joining the D.C. Circuit Court of Appeals, have you witnessed sexual harassment or been made aware of incidents that could be described as sexual harassment among employees of the federal judiciary?
- There have been debates about how best to handle sexual harassment within the federal judiciary since Kozinski stepped down. As a federal judge yourself, what steps could and should the courts take to prevent and punish it?
The Clinton investigation
After his clerkships ended, Kavanaugh spent some time in private practice before returning to government work. He spent most of the 1990s working for independent counsel Ken Starr, who oversaw the investigations into Whitewater and other Clinton administration scandals. Starr eventually concluded that Clinton had perjured himself before a federal grand jury and obstructed justice to conceal his relationship with White House intern Monica Lewinsky. Kavanaugh helped Starr draft his report for Congress, which led to Clinton’s impeachment by the House of Representatives in 1998. The Senate acquitted Clinton on all charges the following year.
Democratic senators will likely take a keen interest in Kavanaugh’s work during this time period for two reasons. First, it offers a rare window into the inner workings of Starr’s investigation. Many Democrats criticized Starr at the time as a partisan effort by Republicans and conservative figures to bring down Clinton’s administration. Second, and perhaps more importantly, Kavanaugh’s work gives Democrats an opportunity to question him on issues that may resurface in the Russia investigation. That includes key questions about whether a president can be compelled to testify before a grand jury—Clinton agreed to do so in the Lewinsky saga to avoid a court battle—and whether presidents can commit obstruction of justice.
- You led the three-year investigation into the suicide of Deputy White House Counsel Vince Foster. Why did your office investigate Foster’s death after multiple other inquiries had already ruled it a suicide? Why did your investigation into Foster’s suicide take three years to complete when other investigators reached the same conclusion in a far shorter time frame?
- In a 1995 memo to independent counsel Ken Starr, you wrote that you found arguments that a president shouldn’t be called to testify before a grand jury to be “unpersuasive.” You went on to add, “Why should the president be different from anyone else for purposes of responding to a grand jury subpoena ad testificandum?” Do you still agree with that?
- In a 1998 letter, you recommended to Starr that he should refrain from pursuing a criminal indictment against Clinton while he remained in office. At that time, did you believe that the independent counsel’s office could lawfully indict a sitting president?
- Were there debates within the Office of the Independent Counsel about whether it would be constitutional to issue a criminal indictment against a sitting president? Was there ever any discussion within the OIC on whether a president could pardon himself?
- At any point during your tenure did you provide non-public information to journalists who were covering the OIC’s work?
The Bush White House
Perhaps the area of greatest scrutiny from Democrats will be Kavanaugh’s work in the White House under George W. Bush. From 2001 to 2003, he worked in the White House counsel’s office, which handles legal matters related to the office of the presidency itself. Kavanaugh then worked as the White House staff secretary from 2003 to 2006. The role is an important one in any White House: The staff secretary oversees the flow of papers to and from the president. Kavanaugh’s defenders have characterized the role as one akin to a “traffic cop,” while others have contended that an effective staff secretary can play a subtle but influential role in policymaking decisions.
Democrats and Republicans have clashed over Kavanaugh’s paper trail from that era since his confirmation battle began. The National Archives told senators, earlier this month, that this likely wouldn’t be available until the end of October. Senate Judiciary Committee chairman Chuck Grassley, a Republican, subsequently scheduled Kavanaugh’s confirmation hearing for early September, meaning that senators won’t have access to all of the requested documents before they question him in three weeks. Grassley also rejected Democrats’ bid to seek Kavanaugh’s records from his time as staff secretary, which amounts to more than a million pages. Republicans have dismissed those efforts as frivolous, while Democrats have suggested that Republicans are trying to hide something.
In their questions for Kavanaugh, senators will likely ask questions about the thousands of pages that have already been released. They may also ask more broadly about the role Kavanaugh played in some of the Bush administration’s most controversial policies, including Guantanamo Bay detainees, warrantless surveillance programs, and torture.
- In a White House email dated March 15, 2001, you told colleagues that you would recuse yourself from three areas of legal matters while working in the White House counsel’s office: matters related to lawsuits brought by the legal organization Judicial Watch, matters related to the grand jury investigation of Bill Clinton, and matters involving the cosmetics industry. Do you intend to recuse yourself in those matters while serving on the Supreme Court? If not, why not?
- In 2015, you served on a three-judge panel in the D.C. Circuit that ruled in favor of a lawsuit brought by Judicial Watch. Why did you recuse yourself from cases involving the organization when you served in the White House, but not while on the D.C. Circuit?
- The March 15 email appeared to reference “additional matters/issues” on which you had recused yourself. Is this accurate, and if so, from what other issues did you recuse yourself while working in the White House counsel’s office? If you are confirmed, would you recuse yourself from those issues while serving on the Supreme Court?
- What role did you play, if any, in crafting the Bush administration’s policy on Guantanamo Bay and other detainees?
- During your confirmation hearing in 2006, you told the Senate Judiciary Committee that you were “not aware” of issues relating to detainee policy while working in the White House counsel’s office in 2003. In 2007, news reports indicated that you took part in discussions among White House staffers on how the Supreme Court would rule on detainee issues. Do you consider your answer in 2006 to be misleading?
- What role did you play, if any, in crafting the Bush administration’s policy on torture, which were often described as “enhanced interrogation techniques”?
- How would you define “torture”? Do you consider waterboarding to be torture?
- What role did you play, if any, in crafting the Bush administration’s policy on warrantless surveillance programs?
- What role did you play, if any, in crafting the Bush administration’s rationale for the Iraq War?
- Were you aware that White House staffers were using a private email server operated by the Republican National Committee to conduct official business, as publicly revealed in 2007? What steps did you take, if any, to notify those staffers of their obligations to preserve government records under the Presidential Records Act?
Kavanaugh has already drawn extensive scrutiny for his writings and remarks over the past 20 years. It’s not uncommon for Supreme Court nominees to face questions about this type of work: Neil Gorsuch, for example, fielded numerous questions last year about a 2006 bioethics book he had written from senators who hoped to glean some insight into his views on abortion rights. For Kavanaugh, the issue is executive power. I noted last month that some of his writings and comments point toward an extraordinary degree of deference to the executive branch and its whims. With Donald Trump in the White House and special counsel Robert Mueller investigating him, Kavanaugh’s views of the presidency’s powers have taken on an even greater significance.
- In 2016, you told an audience at the American Enterprise Institute that you would like to overrule the Supreme Court’s 1986 decision in Morrison v. Olson, which upheld the constitutionality of the Independent Counsel Act. “It’s been effectively overruled, but I would put the final nail in,” you said at the time. Do you still believe that Morrison v. Olson should be overturned?
- In 1999, you said during a panel discussion that the “tensions of the time may have led to an erroneous decision” in United States v. Nixon, which is more widely known as the Watergate tapes case. Do you still agree with that position today? If not, why not?
- There are multiple definitions for what constitutes a constitutional crisis. How do you define the phrase?
- Do you think Nixon’s actions during the Watergate scandal, including his decision to fire special prosecutor Archibald Cox in the Saturday Night Massacre, amounted to a constitutional crisis?
- Since the Watergate scandal, the Justice Department and the FBI have operated with a measure of independence from the presidency. Do you think this is appropriate?
- In a 2009 article for the Minnesota Law Review, you argued that Congress should immunize presidents from civil lawsuits and criminal indictments during their tenure in office. Do you still agree with that position today?
- Do you believe it is appropriate for presidents to publicly disparage individual judges for issuing rulings with which they disagree?
To that end, senators will also spend time questioning Kavanaugh about the process by which he became a nominee for the Supreme Court. Trump is known for making ethically dubious requests in private conversations with government officials, and Democrats will want Kavanaugh’s assurances under oath that nothing amiss took place when the White House weighed him for the post. Democrats may also try to pry into the Trump White House’s work with conservative legal groups to select a Supreme Court nominee, including work by Leonard Leo, the Federalist Society executive vice president who played an influential role in the shaping the Supreme Court’s current membership.
- Did the president or anyone else involved in your nomination process ever ask you about the Russia investigation? What about the Michael Cohen investigation, the criminal trial of Paul Manafort, or any other federal or state criminal investigation, past or present?
- When did you learn that the Trump administration was considering you for a vacancy on the Supreme Court?
- In your Senate Judiciary Committee questionnaire for this nomination process, you listed yourself as a member of the Federalist Society from 1988 to the present day. In an email dated March 18, 2001, you told other members of the White House counsel’s office that you resigned from that organization “before starting work here.” Which account is accurate?
- Did you have any formal or informal discussions with Leonard Leo, other members of the Federalist Society, or members of the Heritage Foundation about your potential nomination to the Supreme Court before it was made public?
If recent history is any guide, Kavanaugh’s hearings will stretch on for three or four days and, despite Democrats’ designs to the contrary, he will be confirmed. The senators can spend that time engaging in a predictable back-and-forth with him about hypothetical scenarios involving major precedents, or they can grill him with concrete questions about his professional past that he won’t be able to evade so easily. The public would be much better served by the latter.