President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, will face the Senate for his long-awaited confirmation hearing on Tuesday.
Since Trump announced Kavanaugh as his pick to replace retiring Justice Anthony Kennedy in July, questions have been raised about the nominee’s controversial record and whether he deserves a hearing before the midterm elections. Many have predicted that the hearing itself will be a bore, but the politics surrounding it are anything but. Here’s what you need to know.
When is the hearing and how you can watch?
First things first. How can you view the hearing? The Senate Judiciary Committee will open Kavanaugh’s confirmation session at 9:15 a.m. on Tuesday September 4th. The hearing is expected to last three to four days and C-SPAN will live broadcast the whole thing.
Who will be there?
Kavanaugh will have some close allies and some formidable opponents in the room as he faces the Senate Judiciary Committee. He’ll be introduced by Former Secretary of State Condoleezza Rice, sitting Senator Rob Portman (R–Ohio), and Lisa Blatt, a liberal Supreme Court litigator who clerked for Justice Ruth Bader Ginsburg on the U.S. Court of Appeals. Kavanaugh worked with Rice and Portman under President George W. Bush; Blatt published an article earlier this summer arguing as a feminist and a lawyer that Democrats should support Kavanaugh.
But it won’t all be friendly faces. This will be the first confirmation hearing for Sens. Kamala Harris (D–Cali.) and Cory Booker (D–N.J.), the first black members of the committee this century. Harris, a former prosecutor, is known for questioning so tough she has been interrupted—twice.
What kinds of questions will Kavanaugh face?
Kavanaugh is likely to face questions about abortion, executive power, and sexual harassment. Given the Republicans’ narrow margin in the Senate, assuring the party’s two pro-choice members of his commitment to protect the abortion rights of Roe v. Wade will be essential to Kavanaugh’s confirmation. That pair, Sens. Susan Collins (R–Maine) and Lisa Murkowski (R–Alaska), could tip the 50-49 Republican majority against Kavanaugh.
The judge’s statements about protecting the executive from independent counsel prosecutors will likewise be scrutinized in light of the Mueller investigation into Russian meddling in the 2016 election and its possible ramifications for Trump. Kavanaugh is on record questioning the ruling that required Nixon to turn over his White House recordings, and he’s talked of overturning protections for independent counsels.
Kavanaugh will also likely be asked about his former boss Alex Kozinski, a former Ninth Circuit Court of Appeals judge who resigned in 2017 amid sexual misconduct allegations. Kavanaugh clerked for Kozinski in the 1990s and maintains a close relationship with him.
Like many Supreme Court nominees before him, Kavanaugh is expected to dodge most of these questions based on advice from allied senators and precedent set by his potential future colleague, Ruth Bader Ginsburg, who said during her 1993 hearing that it would be inappropriate to indicate how she would rule on specific issues that may come before the court.
How high are the stakes?
The hearing will get under way just days after it emerged that the White House has held withheld over 100,000 pages of records about Kavanaugh’s time as a lawyer in the George W. Bush White House, claiming executive privilege. The White House turned over upwards of 415,000 pages of documents in response to an “unprecedented” Freedom of Information Request submitted by Senate Democrats for details about Kavanaugh’s time serving Bush. Senator Chuck Schumer (D-N.Y.) has called the 100,000-page omission a “Friday night document massacre” designed to make the confirmation process happen more quickly.
Democrats have been miffed since Kavanaugh’s nomination about the double standard to which Republicans are holding Supreme Court nominees. Recall that Senate Majority Leader Mitch McConnell (R–Ky.) refused to give a hearing to Merrick Garland, President Barack Obama’s appointee to replace Justice Antonin Scalia. At the time, McConnell claimed the March 2016 nomination was too close to the November election, and the new president should be allowed to choose the next Supreme Court justice. Now Republicans don’t have any such qualms about a nomination that came four months before the 2018 midterms.
If Kavanaugh is confirmed, he could shift the bench to the right for a generation. While Republicans say he’s a good replacement for the swing-vote role Anthony Kennedy played, critics of his nomination see his record as far more conservative than Kennedy’s. That could have important implications for women’s rights, labor groups, and immigrants.
How many Senate votes does Kavanaugh need?
Republicans have 50 seats in the Senate to Democrats’ 49. Confirmation only requires a simple majority, so Republicans technically have the votes if everyone sticks to party lines. Still, a few senators—both Republicans and Democrats—are flight risks.
On the Republican side, Collins and Murkowski could still defect over abortion rights, though they’ve both signaled that they will ultimately vote with their GOP colleagues.
On the Democratic side, ten senators are up for re-election in states that Trump won in 2016 and their voting records will be under scrutiny over the coming months, meaning they’re under pressure to support Kavanaugh. Among those ten, three voted to confirm Trump’s first SCOTUS pick Neil Gorsuch in 2017, and therefore may vote with Republicans in this instance too: Senators Joe Donnelly (D–Ind.), Heidi Heitkamp (D–N.D.) and Joe Manchin (D–W.Va.).