President Donald Trump’s Supreme Court selection sweepstakes ended, as promoted, Monday night with the nomination of Brett M. Kavanaugh, a judge on the United States Court of Appeals for the District of Columbia. The 53-year-old long ago ingratiated himself with the conservative Washington elite, working as an aide to former President George W. Bush, and, before that, as an investigator for special counsel Kenneth Starr, during his wide-ranging inquest into the financial and private affairs of then-President Bill Clinton. In spite of that experience (or maybe because of it), Kavanaugh has more recently asserted that sitting presidents should be “excused from some of the burdens of ordinary citizenship” (including being subject to indictment, prosecution, and trial) because it would prove, as he saw it, too distracting—a sentiment that, no doubt, endeared him to Trump.
That apparent evolution aside, the nominee’s long paper trail and the right’s extensive vetting have given most in official Washington (and many among the media who cover it) the sense that they know where Kavanaugh stands. But, as with the law, some things are open to interpretation. With a number of monumental questions working their way to the high court, further examination is essential.
The good-natured hemming and hawing of recent nominees notwithstanding, there is no law, nor precedent, that prohibits the members of the Senate tasked with Kavanaugh’s confirmation from asking tough questions about important issues that might come before the Court. With that in mind, The Nation has asked some of the people who make it their business to watch these important legal developments to help us (and the distinguished members of the Senate Judiciary Committee) better understand what a Justice Kavanaugh would do to US law, and to American society.
Abortion and Reproductive Rights
Nancy Northup, President and CEO of the Center for Reproductive Rights
“The 1992 decision Planned Parenthood v. Casey resulted in splintered opinions. The controlling opinion, which Justice Kennedy joined, reaffirmed a woman’s right to make the ultimate decision to terminate her pregnancy before viability. States could restrict abortion after viability, allowing for life and health exceptions, and regulate abortion throughout pregnancy as long as the restrictions did not impose an ‘undue burden.’ Two justices wrote separately and recognized the constitutional right to abortion, but did not think the Court should allow greater state restrictions on access. And four justices issued a minority, dissenting opinion that would have overturned Roe v. Wade and eliminated the constitutional right to abortion. If you were on the Court in 1992, which of the opinions in Planned Parenthood v. Casey would you have joined?”
Chiraag Bains, Director of Legal Strategies for Demos
“Do you believe that the Constitution requires that we allow corporations and wealthy individuals the unfettered ability to translate their economic might into political power through campaign contributions and expenditures—even if it drowns out the voices of working-class Americans and erects barriers to candidates of color who lack access to big money and the mostly white donor class?”
Priya Raghavan, counsel for the Brennan Center’s Justice Program
“Justice Kennedy expressed on several occasions a concern that the American system of incarceration and corrections is deeply broken. Given the stark racial disparities found in our criminal-justice system, and our country’s standing as the world’s leading incarcerator, share your views on how we can better ensure equality under the law and protection from undue deprivation of liberty.”
Cindy Cohn, Executive Director of the Electronic Frontier Foundation
“How should the Constitution view mass data collection by the government—for example, copying or viewing all Internet activity routed through a service provider? How should the Constitution address those who are impacted by, but not targeted by, surveillance?”
Patrice Simms, Vice President of Litigation for Earthjustice
“Are you committed, unequivocally, to defending the people’s right to access the courts to hold the government and powerful corporations accountable to the rule of law as it relates to preserving clean air and clean water, and ensuring a safe and healthy environment for children, families, communities, and workers?”
Nan Aron, Founder and President of Alliance for Justice
“If a case flowing from the Mueller investigation and involving the Trump campaign’s possible collusion with Russia were to arrive at the Supreme Court, how would you address this given your past statements that presidents should not be subjected to investigation while in office?”
Vincent Warren, Executive Director of the Center for Constitutional Rights
“Two central questions that are likely to be raised in the near future are whether a sitting president can be indicted, and the extent to which the scope of presidential pardon power includes the president’s ability to pardon himself. Given your writing on the first question, and given that both answers are questions of law more than fact, what is your view on each?”
Immigration and Citizenship
Aziz Huq, Frank and Bernice J. Greenberg Professor of Law at the University of Chicago
“The Supreme Court just said that the Korematsu decision was wrong. Why, in your view, was Korematsu wrong, and what practices are prohibited now that it has been overturned?”
Chase Strangio, trans activist and staff attorney at the ACLU LGBT & HIV Project
“Do you have personal concerns about transgender individuals using multi-user, single-sex facilities like restrooms and locker rooms? Would you be comfortable being in a public restroom with a transgender individual? Would you be comfortable with your children being in a public restroom with a transgender individual? If you do have concerns, what are they and how would they impact your consideration of cases involving transgender litigants?”
Unions, Labor, and Court Precedent
Charlotte Garden, associate professor at Seattle University School of Law
“During his confirmation hearing, then-Judge Alito stated: ‘Although the Supreme Court has the power to overrule a prior precedent, it uses that power sparingly, and rightfully so.’
Yet, Justice Alito recently authored the majority 5-4 opinion in Janus v. AFSCME, overturning Abood v. Detroit Board of Education—a landmark case on the rights of labor unions. The Abood decision had stood for over 40 years, and was relied upon by state and local government employers across the country. As a result of the Court’s 180 on this issue, the stability of the collective bargaining systems for millions of American workers in the public sector has been turned upside-down.
Do you agree with Justice Alito’s view that the Court should overrule prior precedent only sparingly? If so, did the Janus majority overturn Abood too easily? And how can we know that talk of respect for precedent is not just talk, and that you will not vote to overrule similarly venerable cases on topics including labor rights, affirmative action, or abortion?”