Chris Tavenor, Law Fellow, September 4, 2018
This week, all eyes will center on the Senate Judiciary Committee in Washington D.C., where Judge Brett Kavanaugh will face questions from Republican and Democratic U.S. Senators regarding his judicial philosophy and qualifications to join the Supreme Court. In recent years, the nomination process for the Supreme Court has transformed into a hyper-partisan affair. The vitriol and derogatory rhetoric of our nation’s politicians is often difficult to understand, making it almost impossible to read between the lines of senate procedures.
Therefore, the Ohio Environmental Council’s Law Center hopes it can help Ohioans gain a better understanding of what will happen this week inside the Senate’s stifling chambers. Below, we’ve outlined what to expect from this week’s hearings, and hopefully, we’ll help you look behind the curtain as the media and the politicians try to frame the hearings in a particularly partisan light.
If the hearings follow the same schedule as the nomination of Justice Gorsuch, expect this schedule for the week:
Day 1: The Chairman outlines the schedule of the hearing, gives an opening statement, allows all senators on the committee to give opening statements, and then allows the “presenters” of Judge Kavanaugh to introduce him. Finally, Judge Kavanaugh is permitted to give his own opening statement. For Justice Gorsuch, the first day of the hearing lasted 4 hours.
Day 2: Each Senator receives 30 minutes to ask questions to the Judge. For Justice Gorsuch, this day of the hearing lasted over 10 hours.
Day 3: Expect an additional day of questioning. Justice Gorsuch received an additional 8 – 9 hours of questions from committee members on the third day.
Day 4: Other parties testify regarding the nominee’s qualifications, including representatives from environmental organizations. Such testimony occurred for nearly 6 hours for Justice Gorsuch.
For most of the nomination hearing, senators will make self-important statements and make claims about how they believe Supreme Court Justices should make decisions. Others will push Mr. Kavanaugh to state his beliefs regarding particular cases of the past, or potential controversies of the future. However, Supreme Court nominees historically refuse to make substantive statements on their positions on particular cases. It doesn’t matter which President nominated the justice.
This custom comes from Justice Ginsburg, who during her nomination hearing said the following:
You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.
Senators will push Judge Kavanaugh to say many things – don’t read too much into his decision to decline to answer those questions.
You should also expect a number of senators to condemn the other political party for causing a “hyper-politicization” of the nomination process for the Supreme Court. Don’t let this rhetoric fool you — both political parties are to blame. In 2013, the Democratic Party used the “Nuclear Option” to reduce the number of votes needed to approve appellate court judges. In 2017, the Republican Party used it to reduce the number of votes needed to approve a Supreme Court Justice. For more information about the hyper politicization of the judges, consider this recent New York Times article.
We highly doubt Judge Kavanaugh will receive any questions that specifically ask him about his views on environmental issues. However, senators will most likely ask dozens of questions about his experience ruling on administrative law cases.
For instance, senators will most likely ask Judge Kavanaugh about the “Chevron Doctrine,” an obscure legal rule that directly impacts the ability of agencies like the U.S. EPA to perform their job. The Chevron Doctrine ensures that courts defer to agency interpretations of ambiguous statutes; it’s what allows the U.S. EPA to develop regulations like the Clean Power Plan.
Judge Kavanaugh has criticized this Doctrine in the past, and has supported an alternative judicial rule called the “Major Questions” Doctrine. The Major Questions Doctrine would require the Supreme Court to strike down regulations that have significant national economic impact unless Congress explicitly states that the agency has the authority to create that regulation. The Major Questions Doctrine would most likely restrict the U.S. EPA from creating a regulation like the Clean Power Plan.
Similarly, you should also expect Senators to ask questions about separation of powers between the three federal branches and the limits of executive authority. Judge Kavanaugh seems to support a strict separation of powers, which in some cases, may help the environmental cause. Judge Kavanaugh may view some of President Trump’s recent regulatory rollbacks as an overreach of executive authority.
All judges nominated to the Supreme Court are almost always superbly qualified, both in their legal education and their experience on a federal court. However, Senators should strive to approve judges who exhibit excellent character, ethics, and judicial independence. This week, expect dozens of questions from the Senators about Judge Kavanaugh’s past, especially in his behavior as a judge and his relationship with “unsavory” individuals or decisions throughout his career.
Arguably, these questions are what can kill a nomination; nominations to the Supreme Court don’t fail due to substance, they fail because the nominee causes the Senate to lose faith in their character or the Senate stalls a nomination through procedural tactics.
In the current political climate, Judge Kavanaugh will most likely earn the nomination to the Supreme Court split down party lines, or receive a few votes from Democratic senators. However, that doesn’t necessarily mean that Judge Kavanaugh will make decisions always supported by Republicans or opposed by Democrats. Always remember that “liberal” and “conservative” mean different things for judges, and when you listen to the confirmation hearings this week, remember that President Trump can’t actually nominate judges that will just vote however the President wishes.