-Source-New Republic-
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. Read me
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