Democratic senators said Monday that Judge Brett M. Kavanaugh’s past willingness to take positions on decades-old Supreme Court cases means he must also be forced to answer questions about how he’d rule on abortion and health care cases.
At stake is the standard senators will use when questioning Judge Kavanaugh, President Trump’s nominee to the Supreme Court, during his confirmation hearings and in confirmation votes.
Republicans have said Judge Kavanaugh should decline to answer questions about cases that could come before him on the high court, calling that the “Ginsburg Standard” used by liberal icon Justice Ruth Bader Ginsburg to deflect questions during her confirmation hearings. Other nominees from presidents of both parties have since followed her lead.
But Senate Minority Leader Charles E. Schumer said Monday that Judge Kavanaugh hasn’t been shy about offering his opinions on major cases even while serving for the last 12 years as a judge on the Circuit Court of Appeals in Washington, D.C. — and senators shouldn’t let him start clamming up now.
Mr. Schumer’s major piece of evidence is a 2016 speech Judge Kavanaugh gave to the American Enterprise Institute disagreeing with a 1988 Supreme Court ruling upholding the Independent Counsel Act.
Democrats also point to a roundtable discussion Judge Kavanaugh held with lawyers several years ago, according to The Associated Press, where he suggested the Supreme Court wrongly decided the 1974 case that forced President Richard Nixon to hand over the Watergate tapes.
“If Kavanaugh would have let Nixon off the hook, what is he willing to do for President Trump? This should set off alarm bells,” Mr. Schumer said.
The Democratic leader said Judge Kavanaugh also must say during his confirmation hearing whether he would overturn Roe v. Wade, the 1973 case making abortion a constitutional right, and also weigh in on the constitutionality of the Affordable Care Act, which the high court upheld in 2012.
Sen. Amy Klobuchar, Minnesota Democrat, said she was troubled by Judge Kavanaugh’s 2009 article in the Minnesota Law Review arguing that a sitting president should be immune from civil lawsuits.
Sen. Richard Blumenthal, Connecticut Democrat, said Judge Kavanaugh appears to have a strong predilection for siding with the executive branch.
Mr. Blumenthal said in light of that, Judge Kavanaugh must promise to recuse himself from all cases dealing with the current special counsel’s probe into the 2016 election, and cases dealing with Mr. Trump’s finances.
That could include two cases that could end up at the high court: Special counsel Robert Mueller is clashing with Mr. Trump over a potential subpoena, and another case concerns whether Mr. Trump has sufficiently disassociated himself enough from his business empire.
Mr. Blumenthal is the lead plaintiff in a case arguing Mr. Trump, through his network of eponymous hotels, is profiting from foreign governments, in violation of the Constitution’s emoluments clause. That case is currently pending in the district court in Washington, D.C.
“We are not dealing with complete unknowns here,” Mr. Blumenthal said.
Mr. Schumer and Mr. Blumenthal have already said they’ll oppose Judge Kavanaugh, while Ms. Klobuchar says she has “serious” concerns about him.
Both Mr. Schumer and Ms. Klobuchar voted for Obama high court nominees Sonia Sotomayor and Elena Kagan, who faced similar questions over their pre-confirmation writings and speeches. Mr. Blumenthal was not elected to the Senate until after both those votes.
Justice Sotomayor defended her 2001 lecture at University of California, Berkeley, where she said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life.”
Some Republican lawmakers called the remark “racist” during Justice Sotomayor’s 2009 confirmation.
During her 2010 confirmation Justice Kagan took a different approach, backpedaling from a 1995 article she wrote criticizing senators for not forcing high court nominees to explain their thoughts on issues that the justices would face.
“I wrote that when I was in a position of sitting where the staff is now sitting, and feeling a little bit frustrated … that I really wasn’t understanding completely what the judicial nominee in front of me meant, and what she thought,” Justice Kagan said at her hearing.
More recently Justice Kagan, while sitting on the Supreme Court, weighed in on the same independent counsel case that Democrats cite against Judge Kavanaugh.
Justice Kagan, like Judge Kavanaugh, criticized the court majority’s ruling, and she praised the late Justice Antonin Scalia’s dissent, calling it “one of the greatest dissents ever written and every year it gets better.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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