The Brett Kavanaugh Supreme Court Confirmation Hearing

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This entry is part 1 of 5 in the series Supreme Court Nominee Brett Kavanaugh

Some takeaways from the Supreme Court confirmation hearing of Judge Brett Kavanaugh by the Senate Judiciary Committee

Brett Kavanaugh, Supreme Court nominee, Supreme Court nominee Brett Kavanaugh, Judge Kavanaugh, Judge Brett Kavanaugh, Senate Judiciary Committee, Congress, president Trump, presidents, presidential power, presidential powers, executive power, executive powers, three branches of goverment, U.S. Supreme Court, Supreme Court, separation of powers, the U.S. Constitution, Constitution, abortion, women's rights, civil rights, religious liberty, Christian dominion theology, confirmation hearing, nomination hearing,

(September 24, 2018)  During the confirmation hearing by the Senate Judiciary Committee, nominee for the Supreme Court Judge Brett Kavanaugh came across as a sincere, conscientious man who would honestly departmentalize his personal opinions (for the most part) and be an independent, impartial Supreme Court justice who understand the importance of the separation of powers between the three branches of government. 

But! In his view the First Amendment freedom of religion means that there’s a place for folks to practice their religion in the public square. Nothing wrong with that. He discussed Santa Fe Independent School District v. Doe with Senator Cruz (R-T.X.), a case that involved a group of kids who wanted to hold a prayer before a school football game. Usually, if it’s not organized by the school, and if others are not forced to join in, kids can have religious meetings, like they can have other clubs, but in this case they used the announcer’s loudspeakers, which was ruled as too much school involvement. Judge Kavanaugh was also involved with a case of a religious group who wanted to use public school facilities after school, like other groups in the community could. However, the school didn’t allow them because they were a religious group. In that case the Supreme Court came down on the religious liberty side of things. He said that this issue is very case-specific, and that there’s a large gray area. That was the only issue, as far as I remember, and as far as I can tell from my notes, where Kavanaugh believed there was a gray area.

Other than that, Brett Kavanaugh was careful to avoid putting himself in a position that could in any way make him seem impartial now or in the future as a Supreme Court justice. Whenever a senator asked him what he thought about or how he’d rule on a certain issue, he was extremely patient, explaining every time that if he was to take a position on that now, people would want to hold him to it in the future and he wants to go into every case with an open mind, without feeling pressure due to former statements. It made sense.

When asked what makes a good judge, Kavanaugh mentioned repeatedly that predictability and consistency are important.

But! Senator Mazie Hirono (D-H.I.) pointed out in one back-and-forth that Judge Kavanaugh wasn’t as consistent as he wants us to believe. She mentioned Burwell v. Hobby Lobby Stores, in which Kavanaugh ruled for the owners of Hobby Lobby, who were sued by a female employee who couldn’t get insurance for contraceptives because her boss was against contraceptives. The owners of Hobby Lobby could get around their religious objections by filling out a certain form; however, the court ruled that filling out that form was an undue burden on them. But in the Garza case of a seventeen-year-old pregnant girl being held in detention in Texas because she was in the country illegally, he didn’t consider it an undue burden that she had to wait longer to have an abortion, and risk getting to the point of no return, because the court ruled that she should talk with sponsors first. Sponsors who still had to be found, and whom she didn’t need according to Texas law. Hirono’s point was that Kavanaugh’s  use of undue burden is rather lopsided and never falls in favor of the woman.

The Republican senators worked hard to show Brett Kavanaugh’s good side. Senator  Orrin Hatch (R-U.T.), for instance, had him talk a bit about his desire for mens rea reform. Mens rea refers to a defendant’s state of mind during the crime, including whether they knew they were breaking the law. Kavanaugh argued that it’s a violation of due process to give a heavy conviction to someone who didn’t know what they did was wrong. On Day Four a public defender for the D.C. District, A.J. Kramer, recommended Judge Kavanaugh, and he mentioned how Kavanaugh had made a point of mentioning the need for mens rea reform when a gang was on trial and not all the gang members were present.  That seems very nice of him.

But! On day Four, Senator Sheldon Whitehouse (D-R.I.) showed how mens rea reform could help the public regulatory offenders — the big polluters. There’s no mens rea for them right now, because the Congress established that their crimes are so bad and so all-encompassing that we don’t care if they knew it was a crime or not. It’s a crime and they’re guilty. But in this age where corporations are people too, bringing back the mens rea for individuals could set it up for the mens rea to be brought back for the public regulatory offenders as well, so they can claim ignorance and get away with their polluting crimes again.

Kavanaugh explained, time and again, that he believes strongly in the separation of the three branches of government — that the judiciary branch metes out justice; if folks don’t like the laws the judge applies, they should seek to change those laws in Congress, which is the legislative branch. As a judge he stays out of politics because he wants to remain independent and open-minded, and a judge should not make policy. Senator Dianne Feinstein (D-C.A.) asked him how he could rule that the ownership of semi-automatic rifles is a right, and he answered that he found precedent in a law that said that weapons “in common use” were legal. Semi-automatic weapons is one of those new technologies, so maybe people want new laws for them, but that’s up to the Congress, not the courts.  It made sense.

But! There seems to be so much evidence that he is an arch conservative, who is buddy-buddy with the Heritage Foundation, who has spoken against abortion several times, and who’s supported by the NRA. Technically, none of these things mean he will rule one way or another as Supreme Court Justice, but Justice Gorsuch also said he would be an open-minded judge, and he has toed the party line so far. A Supreme Court Justice is appointed for life, so they are independent in the sense that they never have to worry about being fired or not getting a promotion ever again, but there can still be other incentives. There was the rumor that Justice Kennedy retired suddenly to protect his son from investigation, since he had worked at Deutsche Bank, the iffy German bank that loaned Trump money after American banks stopped doing so, though it does seem to be just that, a rumor. Kennedy Jr. worked for a different part of the bank and he left years before the shit hit the fan there. There was also Justice Clarence Thomas‘s possible conflict of interest when he voted for Citizens United while his wife was setting up a non-profit partisan organization that would like to receive and hand out donations without disclosing the donors. (Supreme Court justices could be downright corrupt, as some state supreme court justices are. It’s rare for the Supreme Court, but in 1969  an investigation into a corrupt business uncovered a $20,000 per year retainer for life for Justice Abe Fortas. He resigned before he could be impeached.)

Each time someone asked Kavanaugh about (written) statements he made while he was staff secretary in the George W. Bush White House, he pointed out that he wasn’t a judge at that time. He worked for the president and was part of a team of people who were assigned with carrying out Bush’s policies. As a judge his job is different; he works in a completely different branch of government, and again, he believes in the strict separation of powers. He made statements during his time in the White House about the president needing broad executive powers, but that was then, 9/11 had just happened, and again, he was working for the president. It made sense.

But! Between 2001 and 2003, two staffers to Republican senators on the judiciary committee hacked into several Democrat senators’ computers and stole thousands of documents, which they used for the hearings of Bush nominees. The democrats found out about it via the Wall Street Journal. The theft was coordinated by Manuel Miranda, who worked for Senator Hatch. As White House staff secretary, Kavanaugh worked with Miranda in preparing nominees for their hearings. He was asked at the time if he knew anything about this theft during his 2004 and 2006 hearings. Both times he categorically denied knowing or seeing anything. But now Senator Patrick Leahy (D-V.T.) said that the committee has documents that indicate that he did know, that he received and worked with highly specific documents stolen from Democrats by Miranda. Which means he lied under oath. And the man who can recall every single case he’s ever had, and how he ruled or opined and exactly why, suddenly didn’t recall the exact details of that time.

And! Hirono asked him about Judge Alex Kosinski. She said that his sexual abuse went on for thirty years. He was so notorious that professors warned female students not to clerk with him. He also had an “easy rider gag list”, a long list of email addresses of friends, students, lawyers, other judges, whom he sent a steady diet of very vulgar, dirty jokes. She mentions that Kavanaugh has said he doesn’t remember if he was on the list. She asked him: “Are you seriously saying you don’t remember a steady diet of vulgar jokes?” “No,” said Kavanaugh. His selective memory is a little suspicious.

Senators asked what he would do about precedent on the Supreme Court, because lower courts go by precedent, which they can’t overrule, but the Supreme Court can, so precedent there is only precedent until it isn’t, as Senator Flake (R-A.R.) pointed out. Kavanaugh explained that overruling precedent is rare, and that, for instance, Roe v. Wade (the right to abortion) is Supreme Court precedent and later another Supreme Court decision, Casey, confirmed Roe, so abortion rights have precedent on precedent, which makes it pretty solid. It made sense.

But! Either Senator Hirono or Senator Klobuchar (D-M.N.) pointed out that there are many aspects of the abortion issue, like parental consent, that aren’t settled yet, and that can be used to make abortion less accessible to women.

When he was asked to explain why he ruled a certain way in a controversial case, or why he wrote dissenting opinions, Kavanaugh put each question in the context of the case in question, and the times, and on which precedent he based his opinion. He pointed exactly to each precedent he used for each ruling, going back twelve years. He is a big believer in following precedent because it’s the foundation of American law, it prevents judges from creating policy, which is the Congress’s job, and from ruling based on their personal opinions. Following precedent guarantees stability, predictability and impartiality. It made sense.

But! Senator Kennedy (R-L.A. and the newest member of the judiciary committee) brought up the Glucksberg case. Kavanaugh explained that the Glucksberg test is still used to determine how deep something is steeped in history and tradition, that this is important when it comes to unenumerated laws – laws that aren’t mentioned in the Constitution but are steeped in tradition and history. Then Kennedy made a rookie mistake and pointed out something the Republicans probably didn’t want pointed out (try to ignore the grammar knots he ties himself in): “So, we’re dealing here with values, are we not?  That we all cherish together as Americans, like the rule of law or privacy, or equal opportunity, or personal responsibility. How do nine people determine what values all Americans cherish enough to read into or to discover as a result of the superior intellect of those nine individuals is a part of the Constitution and has been there for a long time, but most of us couldn’t see it, except the nine justices?”  Kavanaugh tried to right the ship by saying that that’s the role of the Congress; the Supreme Court doesn’t create rights and values. But Kennedy didn’t get it and insisted that Scalia himself had said that the Supreme Court can establish a value. Which puts the Glucksberg test in a different perspective: what about issues that haven’t been part of the fabric of American society for centuries? And that then also makes one wonder to what degree Kavanaugh’s love of precedent might reflect his unwillingness to accept societal change. And by choosing which precedent to use in a case, Kavanaugh can create values, and more precedent in a certain tradition.

The senators asked him about his opinions on the constitutionality of special agencies and independent agencies. Apparently independent agencies were typically structured as being run by several heads, appointed by the Congress, but the Consumer Financial Protection Agency, established by Obama in 2010, after the 2008 crash, was headed by one person, appointed by the president. However, that person could not be fired at will, for political reasons. The single heads of special agencies are usually replaced when a new president takes office. Kavanaugh argued that the single head of an independent agency who can’t be fired at will becomes a fourth branch of government, not accountable to anyone. He denied being against the CFPB itself, or independent agencies as such, just against the way the CFPB was structured, and that he suggested that it be restructured as a traditional independent agency. It made sense.

But! In the past, Kavanaugh said that Morrison v. Olson was wrongly decided. The Democrat senators asked him if he still believed that, and he never directly answered the question. He pointed out that the ruling pertained to the independent agencies, which don’t exist anymore. However, the reason his opinion is still relevant is the case itself: The House Judiciary Committee wanted to see certain EPA documents, but President Reagan ordered the EPA head Olson to refuse. Morrison was named independent counsel and she demanded to see the documents. Olson sued her, and it went to the Supreme Court. Olson argued that the independent counsel was unconstitutional because the president couldn’t fire her and so it was an attack on the executive branch. The Supreme Court decided that she was constitutional, because the counsel did not strengthen one branch at the expense of another.

Right now Mueller is a special counsel, not an independent counsel, and Kavanaugh repeatedly pointed out that he felt that U.S. v. Nixon is still precedent for a president having to comply with requests from a special investigator. But the question goes to his stance on the scope of presidential powers. What if Trump orders Sessions to fire Mueller? And what if he fires Sessions if he refuses and replaces him with someone who will? The present Republican-majority Congress will sit with their thumbs up their asses like they have been doing, and with a 5-4 conservative majority, will the Supreme Court stop Trump from doing it, and use Nixon as precedent, even though that case involved a trial court subpoena, while a subpoena from Mueller will be a grand jury subpoena?

The committee members asked Kavanaugh about his past statements that it would be unconstitutional to indict a sitting president. Kavanaugh denied giving his views on the constitutionality of the matter; he said that it has been the Department of Justice’s policy for 45 years not to indict a sitting president, but that’s all it is, a department policy, not a law. And he explained that not indicting a sitting president doesn’t mean a president is immune to justice, that he is above the law, just that prosecution is deferred until after his term in office, because it can be seen as in the interest of the country to have the stability of a president who can continue to do his job. He pointed out that Bill Clinton could have been indicted because he lied under oath about having an affair with a White House aide, so not all investigations are equal. It made sense.

But! Even though Judge Kavanaugh seemed to want to put the committee at ease about his views on presidential powers, and even though he repeatedly mentioned Nixon as solid precedent for a trial court subpoena  for information from a president, on Day Three Senator Whitehouse pointed out that if Trump were to be confronted with a subpoena, it would be a grand jury subpoena, so did Kavanaugh specify every time he mentioned Nixon that it was a trial court subpoena to give himself a loophole for the future? “But senators, I never said that Nixon was a precedent for grand jury subpoenas!”

Day Four of the Supreme Court confirmation hearing was reserve for several panels of folks who gave their two cents and who could then be questioned by the senators. Half of them were pro-Kavanaugh, singing his praises, of course, but it was surprising to see a public defender among them. The other half were anti-Kavanaugh, including three teenagers: a girl who told the story of her harrowing experience during the school shooting in Parkland, Florida; a boy with a degenerative disease who talked about the health care he needed and would need in the future, and how cutting pre-existing conditions from the Affordable Care Act would affect his family and many others; and an asthmatic boy from Maine who gave some statistics showing that the air pollution in Maine is high and that the number of folks with asthma is, too, compared to the national average, and how air pollution doesn’t cause asthma, but it does trigger attacks. He was concerned that Judge Kavanaugh would rule in favor of the big polluters and for deregulation. A woman with cerebral palsy and Down Syndrome  spoke about the right of people with mental disabilities to make decisions about their own bodies; a teacher from Kansas City described her high school, which has far more students than desks, so in many classrooms it was first come first serve for seating. Another woman — a white Methodist pastor who was pro-life and had waited with having sex until marriage — testified because her contraceptives weren’t covered by the health insurance company for religious reasons. Her situation got resolved; she was there to speak for all the women who don’t have a voice.

It was the first Supreme Court confirmation hearing I’ve ever watched in its entirety. I didn’t follow the news about Kavanaugh too much while I studied the hearing, which took me two weeks.

As for his rulings, he was able to explain all his rulings, basing them on precedent, like he claims to always try to do. The Democrat senators showed statistics of his rulings, showing that he ruled more often for big corporations, against abortion rights, etc. Kavanaugh mentioned every time the instances where he did rule for the little guy — or gal — and the Republican senators also gave him plenty of space to prove that he is actually friendly to women, minorities and he little guy. However, both Senators Hirono and Klobuchar said that the exceptions don’t disprove the presence of a pattern.  Personally, I can see how his rulings are based on precedent, and if folks don’t like the law his rulings are based on, they can change them in Congress, because that’s not his job. But it certainly seems that a judge can still do a lot of cherry-picking when it comes to precedent.

It would be naive to give him the benefit of the doubt, given his record as a judge and everything else that we’re learning about his relationships with various groups like the Heritage Foundation. It would be naive to hope he would not rule to please any other interests once he has a lifetime appointment, because he seems to share some of their ideology. But I have to say, just going purely by what was presented at the hearing about his record and how Kavanaugh defended it, it would be a toss-up. His views and statements on presidential powers or any other political issues while he was in the White House are, quite frankly, not relevant, because that was a completely different job than being a judge.

But! He lied under oath about them. He lied when he was asked about the document theft and he lied under oath during both his other conformation hearings for judge positions. He lied under oath during this Supreme Court confirmation hearing. He stated categorically not to know about something or not to have said something one day, and the next day, when a senator told him they had document evidence, his memory suddenly became fuzzy, or he qualified his answers. A nominee for the Supreme Court who lied under oath during his previous hearings for his judgeships and again during the very hearing to confirm him as a justice on the highest court in the land should be disqualified. A judge who lies under oath — that undoes all the sincerity and honesty and conscientiousness he projected and all the praises sung by those who know him as a nice guy and a great girls’ basketball coach.

This post is Part 1 in the Series Supreme Court nominee Brett Kavanaugh. Here is the next one.

 

Sources:

  • Glass, Andrew. Abe Fortas resigns from Supreme Court, May 15, 1969. Politico, May 14, 2017. https://www.politico.com/story/2017/05/14/abe-fortas-resigns-from-supreme-court-may-15-1969-238228.
  • Kieschnick, Michael. How to Bribe a Supreme Court Justice (THE BLOG) Huffpost. May 25, 2011. https://www.huffingtonpost.com/michael-kieschnick/how-to-bribe-a-supreme-co_b_498693.html
  • Morrison v. Olson. Oyez (LI Supreme Court Resources) Justia Supreme Court Center, 1988. https://www.oyez.org/cases/1987/87-1279.
  • Santa Fe Independent School District v. Doe.  Oyez (LI Supreme Court Resources) Justia Supreme Court Center, 2000.  https://www.oyez.org/cases/1999/99-62
  • Stanley-Becker, Isaac. The entire W.Va. Supreme Court faces impeachment for alleged corruption: Gas money, restaurant lunches, an antique desk. The Washington Post, August 10, 2018. https://www.washingtonpost.com/news/morning-mix/wp/2018/08/10/gas-money-restaurant-lunches-an-antique-desk-the-entire-w-va-supreme-court-could-be-impeached-for-corruption/?utm_term=.23204c2f3773.
  • Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, Day 1, Part 1. C-SPAN, September 4, 2018. https://www.c-span.org/video/?449704-1/brett-kavanaugh-confirmation-hearing-begins-amid-democratic-objections-public-protests&playEvent.
  • Day 1, Part 2. C-SPAN, September 4, 2018. https://www.c-span.org/video/?449704-2/senators-judge-brett-kavanaugh-make-opening-statements-confirmation-hearing&playEvent.
  • Day 2, Part 1. C-SPAN, September 5, 2018. https://www.c-span.org/video/?449705-1/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-2-part-1&playEvent.
  • Day 2, Part 2. C-SPAN, September 5, 2018. https://www.c-span.org/video/?449705-10/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-2-part-2.
  • Day 2, Part 3. C-SPAN, September 5, 2018. https://www.c-span.org/video/?449705-11/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-2-part-3.
  • Day 2, Part 4. C-SPAN, September 5, 2018. https://www.c-span.org/video/?449705-14/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-2-part-4.
  • Day 2, Part 5. C-SPAN, September 5, 2018. https://www.c-span.org/video/?449705-15/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-2-part-5.
  • SDay 3, Part 1. C-SPAN, September 6, 2018. https://www.c-span.org/video/?449706-1/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-3-part-1
  • Day 3, Part 2. C-SPAN, September 6, 2018.https://www.c-span.org/video/?449706-101/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-3-part-2.
  • Day 3, Part 3. C-SPAN, September 6, 2018. https://www.c-span.org/video/?449706-2/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-3-part-3.
  • Day 3, Part 4. C-SPAN, September 6, 2018.https://www.c-span.org/video/?449706-102/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-3-part-4.
  • Day 3, Part 5. C-SPAN, September 6, 2018. https://www.c-span.org/video/?449706-3/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-3-part-5.
  • Day 3, Part 6. C-SPAN, September 6, 2018. https://www.c-span.org/video/?449706-4/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-3-part-6.
  • Day 3, Part 7. C-SPAN, September 6, 2018. https://www.c-span.org/video/?449706-103/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-3-part-7.
  • Day 4, Part 1. C-SPAN, September 7, 2018. https://www.c-span.org/video/?449707-1/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-4-part-1.
  • Day 4, Part 2. C-SPAN, September 7, 2018. https://www.c-span.org/video/?449707-3/supreme-court-nominee-brett-kavanaugh-confirmation-hearing-day-4-part-2.
  • Wex Legal Dictionary. Legal Information Institute. Cornell Law School. https://www.law.cornell.edu/wex/mens_rea.

Image: wnyc.org

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