Democrats know Trump’s greatest legacy may be the ascent of a second conservative supreme court justice. Their fight to stop it starts now
Is he the unassuming family man who talks baseball over a beer, champions working women and directs traffic at the Fourth of July parade? Or the extreme ideologue whose ascent will strike a hammer blow to women, tilt America to the right for a generation and shore up the re-election of Donald Trump?
The opposing portraits of Brett Kavanaugh the man and Brett Kavanaugh the jurist will collide on Tuesday when the Senate considers him for the supreme court. The confirmation hearing, a critical test of temperament, may illuminate whether he is ultimately driven by the law or by ideology.
Either way, the seat is Kavanaugh’s to lose. Liberal activists have found it hard to sustain the fury that followed his nomination by Trump after swing vote Anthony Kennedy’s retirement in June. The hearing on Capitol Hill represents Democrats’ last best chance to thwart him.
“The only hope the country has is that Democrats will treat Kavanaugh like a hostile witness on the witness stand under cross-examination, throw him off script and break him down,” said Francis Boyle, a law professor at the University of Illinois.
“You do not need a gentleman or gentlewoman to deal with Kavanaugh. You need a district attorney. Some Democrats are going to have to go for the jugular.”
But Kavanaugh, 53, is no Daniel in the lions’ den. He is the ultimate Washington insider, steeped in the city’s political and legal establishments. His father spent more than two decades in the city as a lobbyist for the cosmetics industry. His mother was a high school teacher and a Maryland judge.
An only child, Kavanaugh went to all-male Catholic schools, studied at Yale University and Yale Law School, clerked for Kennedy in 1993-94 and was an associate counsel for the independent counsel Kenneth Starr. In 1998, two days before President Bill Clinton testified to a grand jury from the White House, Kavanaugh posed 10 suggested questions about the affair with Monica Lewinsky, many of them sexually explicit.
He’s an extremely impressive jurist and the type of judge you want a Republican president to nominate
He was a member of Lawyers for Bush-Cheney during the 2000 election and took part in the Florida recount that gave George W Bush victory over Al Gore. Kavanaugh served as a White House counsel to Bush and then staff secretary until 2006, when – his nomination having been held up by Democrats for three years – he was appointed to the US court of appeals for the DC circuit. Once he became a judge, he decided to stop voting.
He offered an insight into his judicial philosophy during a speech at Catholic University’s law school in 2015. He likened being a judge to being a good umpire, able to walk in others’ shoes and understand them while keeping emotions in check.
“On the bench, to put it in the vernacular, don’t be a jerk,” he said, also advising: “Check those political allegiances at the door when you become a judge.”
Kavanaugh’s supporters have been quick to point out that he hired more female than male clerks. Sarah Pitlyk, who became a mother shortly before clerking for Kavanaugh in 2010-11, recently told an audience at the Heritage Foundation how he called her before the job started.
“He just put it out there and said, ‘You’re a mom coming to clerk, I haven’t done this before, you haven’t done this before, let’s figure out what we need to do to make the clerkship just as rewarding for you as it would be otherwise but also to make it possible for you to be a mother while you’re doing it.’”
She added: “He asked for my ideas about how to do that. He didn’t tell me what would work for me, he didn’t prescribe the best solution based on his infinite wisdom or what he’d seen in other contexts … We made the accommodations that I needed to see my son every day and also be clerk for Judge Kavanaugh.”
The judge lives with his wife of 14 years, Ashley Estes Kavanaugh, and daughters Margaret and Elizabeth in a $1.2m home in Chevy Chase, an affluent, predominantly white town north of Washington. (According to the New York Times, he makes $220,600 as a federal judge while she earns about $60,000 as town manager).
Kavanaugh is seen out walking his dog, Murphy, or shovelling snow. He has coached girls’ basketball teams and serves as a lector and usher at Blessed Sacrament church. Greg Chernack, a Democrat, lawyer and chairman of the town council, said: “He is very unassuming. He’s very down to earth and easy to talk to. He’s just another one of the neighbours. He usually plays traffic cop on 4 July when we have a parade.”
Kavanaugh is a fan of Bruce Springsteen and the Washington Nationals baseball team, Chernack added. “I sense he’s a big reader and right upfront in knowing legal literature. There are many things I disagree with him on but he’s an extremely impressive jurist and the type of judge you want a Republican president to nominate.”
Others who have met him also sing his praises. Curt Levey, president of the conservative activist group the Committee for Justice, said: “He’s intellectually curious. He loves to get into the details of the law and that’s why he loves being a judge. He’s the perfect person for it.”
There has also been support from unexpected quarters. Lisa Blatt, a self-declared liberal Democrat and feminist who has argued 35 cases before the supreme court, more than any other woman, wrote in Politico earlier this month: “Sometimes a superstar is just a superstar. That is the case with Judge Brett Kavanaugh … he will do the job with dignity, intelligence, empathy and integrity.”
Kavanaugh seems likely to have the full support of the Senate’s Republican majority including Susan Collins of Maine and Lisa Murkowski of Alaska, having apparently assuaged their concerns over the landmark abortion rights ruling Roe v Wade. Levey said: “It’s one thing to say it was wrongly decided. It’s another to say, after nearly 50 years, ‘I’m going to go out there and overturn it.’
He has used the Roberts dodge of saying Roe is settled law. So what? The supreme court can unsettle it tomorrow
Francis Boyle, University of Illinois
“I never got the sense it’s at the top of his list of the most important issues in the world. The reason there’s no real doubt Collins and Murkowski are going to vote for him is they know that. He might be conservative but he’s not on an ideological mission to ban all abortions.”
Progressive activists, however, remain convinced that is precisely his mission. A multimillion-dollar advertising and lobbying campaign is in full swing. The groups Women’s March and Center for Popular Democracy Action are planning a day of action in Washington on Tuesday.
Boyle, an international law expert who serves as counsel to Bosnia and Herzegovina and the provisional government of the Palestinian Authority, shares these concerns.
“I think Kavanaugh was put on there to ensure Roe is overturned,” he said. “He has used the Roberts dodge of saying it is settled law. So what? The supreme court can unsettle it tomorrow. He did not say it was decided correctly.”
Critics note that Trump has relied heavily on the rightwing Heritage Foundation and Federalist Society to develop his shortlist for supreme court nominations. Boyle said: “Kavanaugh is an extreme ideologue and a legal hatchet man for the Federalist Society. He was their spear carrier for years. He is being put on there by Trump to do their business and make the court as far right as he can under the circumstances. It’s going to be bad for a lot of people: for gays, for African Americans, for labour, for women.”
‘He’s been battle-tested’
Trump’s nominations of solid conservatives Neil Gorsuch and Kavanaugh to the supreme court are the glue holding his Republican coalition together, delighting evangelicals and persuading at least some moderates to overlook the president’s multiple shortcomings.
Come Tuesday, Democrats are likely to press Kavanaugh on Roe v Wade and LGBT rights, his scepticism about affirmative action, whether he misled senators at his 2006 confirmation hearings about national security issues in the Bush White House, and his attitude to whether a sitting president should be protected from litigation and criminal investigations. The decision by the Trump administration to withhold 100,000 documents relating to Kavanaugh’s White House service will also hang over the hearing.
Senators with courtroom backgrounds such as Richard Blumenthal of Connecticut and Kamala Harris of California are likely to probe hard. But John Malcolm, vice-president of the Institute for Constitutional Government at the Heritage Foundation, said: “Judge Kavanaugh has been through two confirmation hearings and he’s been battle tested. If he can serve in the positions he’s served in in the Bush White House, my guess is he’ll have no trouble at his confirmation hearing.”
Neal Katyal, an acting solicitor general in the Obama administration, predicted that the spotlight will be more on the nominee’s conservatism than his character.
“Judge Kavanaugh is one of the most respected judges currently serving,” he said. “At the same time, he’s also conservative, and quite a bit more conservative than the justice he has been nominated to replace.”
Kavanaugh’s significance is likely to endure long after the latest outlandish speech or tweet from the president has been forgotten. Katyal, a law professor at Georgetown University in Washington, added: “The stakes are astronomical – this nomination, if successful, will dramatically alter the composition of the US supreme court, and very well may be President Trump’s most lasting legacy.”