Brett Kavanaugh’s big week on Capitol Hill is finally here. President Donald Trump’s nominee for the Supreme Court will appear before the Senate Judiciary Committee on Tuesday and Wednesday for his long-awaited confirmation hearing. The first day of hearings will consist of opening statements from every member of the committee, as well as one by Kavanaugh himself. Those statements will set the tone for the full day of questioning from Democratic and Republican senators on Wednesday.
Republican senators likely will focus their attention on his established judicial record: Kavanaugh has spent the past twelve years as a judge on the D.C. Circuit Court of Appeals, where he’s delighted conservatives with his rulings on federal regulations, the separation of powers, and the Affordable Care Act. Democrats will also likely question him about his judicial record. Retiring Justice Anthony Kennedy spent the closing years of his tenure on the court maintaining a precarious status quo on abortion rights and affirmative action that Kavanaugh’s presence may change. Democratic senators will likely also quiz Kavanaugh extensively about his views on executive power, the rule of law, and other potential issues that may arise from the Russia investigation.
Kavanaugh, like nearly every prospective justice over the past 25 years, likely will avoid giving substantive answers about high-profile issues like abortion rights or affirmative action. Judicial nominees frequently decline to answer questions that could indicate how they would rule on future cases, citing the need to preserve both their impartiality and the judiciary’s independence. As a result, confirmation hearings often turn into bouts of verbal judo as senators try to pin down a nominee’s views and the would-be justices try to evade substantive answers. Joe Biden, a former Senate Judiciary Committee chairman, famously compared the spectacle to kabuki theater.
Last month, I outlined a series of questions that sought to bypass this tradition. Instead of focusing on how a prospective justice would rule on hot-button issues, I focused on Kavanaugh’s track record in independent counsel Ken Starr’s office in the 1990s and the George W. Bush White House in the 2000s. In recent weeks, I’ve also reached out to law professors from across the country and the ideological spectrum: What’s the one question you would ask Kavanaugh when he appears before the Senate Judiciary Committee?
Some of the academics I contacted for this article declined to participate, telling me that they were unconvinced that anything useful could come from Kavanaugh’s confirmation hearing. “I am assuming that Kavanaugh, like most nominees, won’t give revealing answers to really substantive questions,” one law professor responded. “I’m afraid I’m somewhat unconvinced about the utility of asking questions at all right now,” another told me.
Others, however, framed their question in anticipation of Kavanaugh’s reticence. Some of the questions eschew individual cases and instead ask for his views on broader legal principles, like due process and state sovereign immunity. Others ask for his views on significant but less prominent legal issues. Many focus on issues where he may diverge from Kennedy, who typically voted with the court’s conservatives but also sided with the liberal justices at times. The questions have been lightly edited for style and clarity.
Jonathan Adler, Case Western Reserve University:
I would ask Judge Kavanaugh to explain his understanding of what “due process of law” means—not what the cases have said it means, but what he understands it to mean. This is important because both the Fifth and Fourteenth Amendments provide that no one may be deprived of life, liberty, or property without due process of law. These clauses have been used as justification for a wide range of doctrines and are also important for questions relating to the power of the administrative state.
Douglas Berman, Ohio State University:
In an opinion joined by all his circuit colleagues, First Circuit Judge David Barron earlier this year lamented that the “nearly three-decade old, three-justice concurrence” in Harmelin v. Michigan, left judges “no choice but to approve mandatory ‘forever’ sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin.”
Especially with state and federal legislatures questioning and reforming mandatory sentencing provisions and punitive drug laws, do you share the view that it may be time for the Supreme Court to consider again whether and when the Eighth Amendment permits lengthy mandatory prison sentences for less serious offenses?
Barron’s opinion is from United States v. Rivera-Ruperto, a case involving a man convicted in a FBI sting operation in Puerto Rico involving fake cocaine sales. Though he had no criminal history and the transactions only involved undercover federal agents, Rivera-Ruperto received a 131-year sentence. Harmelin v. Michigan is a 1991 case in which the Supreme Court upheld a life-without-parole sentence for a defendant convicted of possessing roughly 650 grams of cocaine; Kennedy authored the concurring opinion that Barron and the rest of the First Circuit criticized.
Susan Bloch, Georgetown University:
I would like hear whether he will recuse himself from a suit between special counsel [Robert] Mueller and Trump. Specifically, if Mueller subpoenas President Trump and Trump refuses, will Kavanaugh recuse himself from a Supreme Court case addressing this issue?
Erwin Chemerinsky, University of California, Berkeley:
I would want to ask Kavanaugh how he would have voted if he had been on the Court when Roe was decided? When Obergefell was decided? When Grutter was decided? I would not be asking how he will vote in the future, but what he would have done in the past.
The high court’s ruling in Obergefell v. Hodges in 2015 struck down state prohibitions on marriage for same-sex couples. In the 2003 case Grutter v. Bollinger, the court upheld the use of affirmative action in a public university’s admissions policy. Kennedy wrote the majority opinion in Obergefell. Though he dissented from Grutter, Kennedy later concurred with the court’s 2016 decision in Fisher v. University of Texas that upheld the use of race in college admissions
Elizabeth Joh, University of California, Davis:
What are the circumstances in which a Supreme Court precedent should be overturned?
How necessary is the exclusionary rule to protect Fourth Amendment rights?
How would you describe the judicial approach the Court has used to interpret the Eleventh Amendment in favor of state sovereign immunity and against recognizing protecting rights in various circumstances?
What is the appropriate role for the Court when asked to interpret the Constitution as it applies to new technologies used by the police that may quickly and irrevocably affect people’s sense of privacy?
“I think this should elicit a more interesting answer about Roe than the question we have been hearing, that is, ‘Is Roe settled law?’” Joh said. “Of course Roe is settled law, until five justices decide that the case may need reexamination.” She also noted that the court has been “increasingly hostile” to the exclusionary rule in recent years and carved out multiple exceptions to it.
Rick Hasen, University of California, Irvine:
Judge Kavanaugh, I understand you cannot tell us how you would vote in contested cases coming before the Court. But do you agree or disagree with the following statement? If you agree with the four other Justices appointed by Republican presidents, you would be the likely fifth vote to: overturn or severely limit precedent assuring a woman the right to get an abortion; strike down most campaign contribution limits; keep federal courts out of the business of policing the drawing of district lines to benefit one party over another; kill affirmative action plans in employment and education; uphold strict voter identification laws; and recognize the right of people to raise religious objections to state antidiscrimination laws protecting the LGBT community?
Michael McConnell, Stanford University:
How has the experience of being a judge affected your view of the law?
McConnell previously served as a judge on the Tenth Circuit Court of Appeals.
Peter Shane, Ohio State University:
In signing statements alone during his first six years in office, when you were either in White House Counsel’s office or acting as the President’s staff secretary, President George W. Bush raised nearly 1,400 constitutional objections to roughly 1,000 provisions of statutes he was nonetheless signing into law. Some of these signing statements complained that Congress’s requirements of executive branch reports could interfere with the President’s recommendations power, that Congress’s specifications of factors to be considered in administrative decision making could interfere with the President’s supervisory powers over the executive branch, and even that statutory protections for military lawyers giving their superiors independent legal advice could interfere with the President’s charge to take care that the laws be faithfully executed. He also signed an executive order that would have allowed family members of former presidents to claim executive privilege with regard to records of a prior President’s Administration.
What role did you have in the framing of these theories of executive power and could you please explain them?