Analysis: Why the Kavanaugh confirmation hearings have been so intense

Jacob Wasserman Jacob Wasserman.

BY
Senior Reporter

In a week that saw an unsigned op-ed in the New York Times written by a “senior official in the Trump administration” and the Delaware primary elections, the most consequential political story is the confirmation hearings before the Senate Judiciary Committee for Supreme Court nominee Judge Brett Kavanaugh.

Kavanaugh currently serves as an associate justice on the U.S. Court of Appeals for the D.C. Circuit and was nominated by President Donald Trump to replace “swing vote” Supreme Court Justice Anthony Kennedy, who retired in June.

Kavanaugh will likely act as a steady conservative on the Court, but one thing that sets him apart from just any conservative is his view on executive power.

He essentially believes that the President should not be over-burdened with an intrusive investigation, as it creates too much of a disruption from the President’s daily job, and that the only investigation should come from Congress.

In the confirmation hearings, many Democratic senators were particularly concerned with such views on executive power, as multiple former Trump staffers have either been convicted of or plead guilty to federal crimes, including former Trump campaign manager Paul Manafort and his former personal lawyer, Michael Cohen.

“The president of the United States who has nominated you is an unindicted co-conspirator implicated in some of the most serious wrongdoing that involves the legitimacy of his presidency,” Sen. Richard Blumenthal (D-Conn.) said. “There’s a distinct possibility and even a likelihood that issues concerning his personal criminal or civil liability may come before this Supreme Court as early as the next term.”

As was expected, Kavanaugh was asked whether he would recuse himself from any cases involving Trump, and also as expected, he did not commit either way.

Another major controversy surrounding the hearings was over documents, especially from Kavanaugh’s time in the George W. Bush White House. Due to the nature of his role in the White House, he generated hundreds of thousands of documents over that time.

By the start of the hearings, Senators had obtained around 415,000 pages of documents in total. 147,000 pages were marked “committee confidential” by the Republican majority of the Judiciary Committee, meaning that Senators could access them, but the public could not. The White House invoked executive privilege to withhold 101,921 additional pages. To add to that total, Senators received an additional 42,000 pages of documents this past Monday night, the day before the hearings.

Judiciary Committee Ranking Member Sen. Dianne Feinstein (D-Calif.) highlighted what Democrats were still frustrated about, despite having so many documents.

“We start this hearing with only 4 percent of Brett Kavanaugh’s White House record available to the public,” she said.

Sen. Cory Booker (D-N.J.) and many other Democratic senators felt that at least some of the documents classified as “committee confidential” should not have been classified that way and that the process by which they were classified was illegitimate.

They also felt that the public should know about what was contained in some of documents, many of which were internal White House emails that contained Kavanaugh’s views on subjects such as racial profiling.

Booker’s office then intentionally broke Senate rules by releasing the documents, knowing that doing so could result in the senator’s expulsion from the Senate, which was pointed out to Booker by Sen. John Cornyn (R-Texas). That sparked an intense exchange between the two senators, and can possibly lead to an ethics investigation.

The hearings also reintroduced an incident from between 2001 and 2003, in which Republican Judiciary Committee staffer Manuel Miranda stole documents from a server that Republican staffers shared with Democrats.

Sen. Patrick Leahy (D-Vt.) was one of the Senators whose files were stolen. In a press release, Leahy provides what he believes is proof that Kavanaugh, who was working closely with the Judiciary Committee at the time, knew saw and knew the source of the documents.

Kavanaugh has denied that he had access to any stolen documents, but Leahy and Feinstein believe that is not true.

In another controversy, several Democrats have accused Kavanaugh of lying about the nomination of controversial conservative William Pryor to the United States Court of Appeals for the Eleventh Circuit in April 2003.

During his confirmation hearings from when he was nominated to the D.C. Circuit in 2004, in response to questioning from Sen. Edward Kennedy (D-Mass.), Kavanaugh said under oath, “No, I was not involved in handling [Pryor’s] nomination.”

These confirmation hearings have kicked up a lot of dirt and created a ruckus in the Senate. The Senate currently is made up of 51 Republicans and 49 Democrats. Therefore, every Democrat, even those in tough re-election fights, has to vote “no” and two Republicans have to break from their party and vote “no” as well.

The most likely Republican defections are Sen. Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska).

They both are relatively moderate and describe themselves as in favor of abortion rights. Both Senators are facing immense pressure from both sides of this confirmation fight.

So much so that a fundraiser has raised over $900,000 that will be donated to Collins’ eventual Democratic opponent when she is up for re-election in 2020, if she votes to confirm Kavanaugh.

The Judiciary Committee will vote on Sept. 20, and if a majority votes for confirmation, the nomination then goes to the full Senate, where a majority is needed there as well.

In all likelihood, Kavanaugh will sit on the Supreme Court.

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    Ali Mahdi 2 weeks

    I have a lot of issues with this ‘analysis.’ This piece is more commentary than anything, and it is politicizing the SCOTUS. SCOTUS often does not have judges ruling among the ideological lines of the president who appointed them (i.e. Sessions v Dimaya, South Dakota v. Wayfair, Voisine v United States, etc), yet this commentary goes on to take a politicized approach instead of a jurisprudential one. Courts have a history of staying apolitical, which the hearings consistently reaffirmed. It also is lacking Kavanaugh’s formal background aside from his current job (e.g. cases he has written opinions for, education, who he clerked for). I do not see why this piece is labelled ‘analysis’ when it is clearly left leaning commentary that belongs in opinions. Although I have my own troubles with Kavanaugh’s nomination to this seat, this piece does not perform its duty.

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