Kavanaugh’s four hurdles to the Supreme Court
Trump’s nominee will have to convince swing-vote senators he’s on their side on several key issues if he’s going to get confirmed
This story is published in a content partnership with POLITICO. It was originally reported by Burgess Everett and Heather Caygle on politico.com July 10, 2018.
On his first day as a newly-minted nominee to the Supreme Court, more than a half-dozen swing senators made clear that Brett Kavanaugh will have to say the right things on their policy priorities if he wants to get confirmed.
Even as he was broadly welcomed by Senate Republicans, and a handful of Democrats expressed openness to his confirmation, the hurdles for the conservative DC Circuit Court judge are taking shape.
“Nobody should assume anything right now,” said Senator Joe Manchin (D-W.Va.), who backed Justice Neil Gorsuch and is being wooed by Republicans.
To get moderates in both parties, Kavanaugh must give some assurances on protecting the right to an abortion under Roe v. Wade as well as health insurance coverage for people with pre-existing conditions.
He’ll have to work to gain the vote of a sceptical Rand Paul (R-Ky.) over the government’s surveillance powers. And the spectre of Robert Mueller’s Russia probe will hang over the confirmation into the fall.
The good news for Senate Majority Leader Mitch McConnell (R-Ky.) is that US President Donald Trump did not pick a justice like Seventh Circuit Court Judge Amy Coney Barrett, someone who might have given more “heartburn” to centrist Republican Party senators like Lisa Murkowski of Alaska and Susan Collins of Maine, according to Senator John Thune (R-S.D.).
But there's four key policy areas where Kavanaugh needs to do some convincing to ensure his confirmation.
Democrats’ latest rallying cry is the protection of pre-existing conditions under the Affordable Care Act, which the Trump administration is no longer defending in a lawsuit launched by Republican Party attorneys general.
“We Democrats believe the number one issue in America is health care,” said Senate Minority Leader Chuck Schumer (D-N.Y.).
Based on their support for Gorsuch, Republicans are targeting four Democrats as potential yes votes: Manchin, Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Doug Jones of Alabama, who was not in the Senate when Gorsuch was confirmed. Schumer’s emphasis on health care is already colouring Kavanaugh’s prospects among those four centrist senators.
“Pre-existing condition is high for me. Very high. Very high,” Manchin said, citing the 800,000 West Virginians with a pre-existing condition. “It’s big. Really big. And it should be big. Basically these people have for the first time, have a chance to live a better quality of life.”
The question is what exactly Kavanaugh could say to assure someone like Manchin. Though there is a good chance the latest challenge to Obamacare will make it to the Supreme Court, judges typically won’t articulate specific positions on cases moving through the courts.
That makes it a challenge for Kavanaugh to refute what Democratic leaders are saying. That a vote for Kavanaugh “is a vote to end protections for patients with pre-existing conditions,” in the words of Senator Patty Murray (D-Wash.).
Responded Senator Lamar Alexander (R-Tenn.): “You’re not supposed to know how a judge is going to decide before he hears the case. That’s why you have a judge.”
Roe vs Wade
Democrats warn that swapping Kavanaugh for swing vote Justice Anthony Kennedy will lead to the end of legal abortion in America. And that puts Murkowski and Collins, who back abortion rights, in a tough spot.
Trump has previously vowed to nominee anti-abortion justices, and Kavanaugh opposed giving an undocumented immigrant access to an abortion last year – giving Democrats more evidence that he’s not committed to upholding abortion rights for women.
“They just hide behind this idea that they can come before us and say ‘oh, we’re going to support precedent.’ And it’s total BS,” said Senator Mazie Hirono (D-Hawaii).
“Because when you’re on the Supreme Court, you actually set precedent.”
Murkowski said in an interview that abortion rights is a “big factor. One of many big factors.”
“Some of the media controversy that was so pinpointed on Senator Collins and myself on just the issue of abortion, makes it sound like it’s the only thing that this soon-to-be newly constituted court is ever going to rule on,” Murkowski added.
Kavanaugh is unlikely to offer any explicit reassurances on the challenges to abortion rights that the Supreme Court receives each year. And besides, says Murkowski, a senator would never just ask point blank: will you overturn Roe v. Wade?
“That exchange doesn’t happen. It just doesn’t happen,” she said.
“We try to discern as best we can. But more often than not it’s not wholly definitive. So this is why it’s important that, I think, each of us really does his or her homework.”
The libertarian-leaning Paul is never one to give up his vote easily. And he has serious concerns with Kavanaugh’s views on government surveillance, according to Republicans familiar with the matter.
Paul has long been against sweeping collection of data from US spy agencies, even briefly shutting down portions of the Patriot Act in 2015.
That same year, on the DC Circuit, Kavanaugh wrote that the “the government’s metadata collection programme is entirely consistent with the Fourth Amendment.”
“Critical national security need outweighs the impact on privacy occasioned by this programme. The government’s programme does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the government’s programme fits comfortably within the Supreme Court precedents,” Kavanaugh wrote.
Paul is a wild card: he voted against CIA Director Gina Haspel but for Secretary of State Mike Pompeo this year.
But on Kavanaugh, he isn’t tipping his hand early and insists he’ll keep an “open mind”.
He refused to even answer specific questions about Kavanaugh’s record
“I don’t have anything right now,” he said as he left a Foreign Relations Committee meeting on Tuesday afternoon.
The Mueller investigation
Democrats are raising alarms about Kavanaugh’s past opinions on whether a sitting president can be indicted in a criminal investigation and how that would impact Mueller’s ongoing Russia probe. Trump’s lawyers are involved in months-long negotiations with Mueller’s team over whether the president will be interviewed in the probe and the terms of such a sit down.
If Trump ultimately refuses and the question of whether the president can be subpoenaed comes before the Supreme Court, Kavanaugh could be the deciding vote.
Trump “chose the candidate who he thought would best protect him from the Mueller investigation,” Schumer declared Tuesday.
Democrats take particular issue with a 2009 Minnesota Law Review article in which Kavanaugh argues the president should be “excused from some of the burdens of ordinary citizenship,” noting his views evolved from the late 1990s when he was a lead lawyer on the Ken Starr investigation into Bill Clinton. Congress should consider passing a law exempting a sitting president “from criminal prosecution and investigation” because the “indictment and trial” would “cripple the federal government,” Kavanaugh wrote.
But not all Democrats have fully committed to pursuing the issue: “I have not formed any opinions on the Muller investigation [and] the relationship to the Supreme Court as of yet,” Senator Jon Tester (D-Mont.) said Tuesday.