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Ten issues likely to come up on second day of Kavanaugh hearings

The Washington Post brings you live coverage and analysis of day two of Supreme Court nominee Brett Kavanaugh’s confirmation hearing. (Video: The Washington Post)

The first day of the confirmation hearings for Supreme Court nominee Brett M. Kavanaugh introduced the country — briefly — to the nominee, who pledged in his opening statement to be “a neutral and impartial arbiter who favors no litigant or policy.”

On Wednesday, Kavanaugh gets what is expected to be a 12-hour grilling as the Senate Judiciary Committee questions him on a range of topics.

Questions from members of the committee are expected to span the course of Kavanaugh’s long career in Washington — from his tenure as a member of independent counsel Kenneth W. Starr’s team in the 1990s to the George W. Bush White House to the 12 years he has spent as a federal judge.

Here are some of the issues most likely to arise:

Should a sitting president be subject to civil suits and criminal investigation?

Kavanaugh’s view that a sitting president should not be distracted by criminal investigations or civil lawsuits will be of great interest to Senate Democrats.

Kavanaugh, who worked for Starr in the investigation of President Bill Clinton, expressed regret about the way the probe was conducted in a 2009 article he wrote for the Minnesota Law Review. While Kavanaugh wrote those words seven years before Donald Trump was elected president, that viewpoint could be relevant in light of special counsel Robert S. Mueller III’s investigation into whether Trump’s campaign coordinated with Russia in the 2016 campaign.

If Kavanaugh is confirmed, he might be asked to rule on whether Mueller has the right to subpoena the president and compel his testimony. Members of Congress could press Kavanaugh on whether it would be a conflict of interest for him to participate in a decision about the president who nominated him to the court.


Many who oppose Kavanaugh’s nomination do so on the grounds that he could be the pivotal vote to overturn Roe v. Wade, the 1973 case that established a woman’s right to end her pregnancy.

In Kavanaugh’s meeting last month with Sen. Susan Collins (R-Maine), who supports abortion rights, Kavanaugh said the landmark decision is “settled law.” But in a subsequent meeting with Senate Minority Leader Charles E. Schumer (D-N.Y.), Kavanaugh would not answer whether he thought Roe had been correctly decided.

Kavanaugh has had only one major abortion ruling, in a case last fall involving a pregnant migrant teenager in federal custody. A majority of Kavanaugh’s colleagues on the U.S. Court of Appeals for the D.C. Circuit ordered the Trump administration to allow the teen to end her pregnancy.

In his dissent in Garza v. Hargan , Kavanaugh wrote that his colleagues had created “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand” and that the court was shifting the law toward a “radical extension of the Supreme Court’s abortion jurisprudence.”

Kavanaugh did not go as far as another judge on the D.C. Circuit who said the teen had no constitutional right to an abortion. He also repeatedly referred in his opinion to the “precedent” set in Roe.

The idea that Kavanaugh views Roe as “settled” does not necessarily mean he would oppose abortion restrictions. Chief Justice John G. Roberts Jr., who also described Roe during his confirmation hearing as “settled as precedent,” has been a reliable vote in favor of such restrictions.

Health care

Senators on both sides of the aisle are likely to press Kavanaugh about his rulings related to President Barack Obama’s health-care law, which Republicans tried unsuccessfully to repeal. The Justice Department has said it will not defend the Affordable Care Act against challenges from the states, and advocates of the law have warned that Kavanaugh’s addition to the high court could lead to a rollback of protections for people with preexisting medical conditions.

Kavanaugh issued a dissent in 2011 when the D.C. Circuit upheld the constitutionality of the Affordable Care Act in the case Seven-Sky v. Holder . But he was criticized by some conservatives for doing so on technical, jurisdictional grounds instead of declaring the law unconstitutional.


Advocates for reproductive rights are concerned about the contraceptive-coverage requirement in the health-care law. In a 2015 case, Kavanaugh dissented from his colleagues and sided with the group Priests for Life, which argued that a provision to opt out for religious objections was too burdensome.

But Kavanaugh was again criticized by some social conservatives for referring in his dissent to precedent that “strongly suggests that the government has a compelling interest in facilitating access to contraception.”

The issue remains in court after the Trump administration last year issued new rules making it easier for employers to refuse to provide coverage for birth control on the basis of religious objections.

Affirmative action in higher education

Civil rights advocates and those opposed to racial preferences agree that Kavanaugh could be the vote on the high court that conservatives have been looking for to end affirmative action in college admissions.

As a lawyer in private practice in 1999, Kavanaugh described a government program for Native Hawaiians as a “naked racial-spoils system.” He invoked the language of the late Justice Antonin Scalia, writing in a newspaper column that the Supreme Court would eventually find that “in the eyes of the government, we are just one race.” That view could apply to racial preferences in other areas such as housing and employment.

Kavanaugh’s position is significant because of the person he was nominated to replace. Justice Anthony M. Kennedy was the deciding vote two years ago to uphold the University of Texas’s limited use of race as a factor in admissions.

Admissions practices at Harvard and the University of North Carolina are facing legal challenges that could end up at the Supreme Court. In a legal brief filed in federal court last week, the Justice Department sharply criticized Harvard as engaging in “racial balancing.”

Executive power

Democrats have focused on Kavanaugh’s rulings in favor of broad presidential power and his criticism of the independent counsel law to suggest he would protect Trump from Mueller’s investigation. In a 2016 discussion at the American Enterprise Institute, Kavanaugh said he would “put the final nail in” the now-defunct independent counsel law.

In his court opinions, Kavanaugh has called for restructuring the government’s consumer watchdog agency so the president could remove the director and has been a leading defender of the government’s position when it comes to using military commissions to prosecute terrorism suspects.

Voting rights

In 2012, Kavanaugh wrote the unanimous opinion for a three-judge panel that cleared new voter identification requirements in South Carolina.

Kavanaugh’s opinion in South Carolina v. Holder acknowledged objections from Obama’s Justice Department and civil rights groups about what they argued was the disproportionate impact of the law on black voters, who were less likely to have acceptable photo IDs. The opinion delayed implementation of the law for one year but ultimately allowed it to take effect.

Civil rights advocates have said it is telling that Kavanaugh did not join the two other judges in a separate opinion in which they noted the “vital” role of the Voting Rights Act, which required federal oversight of election laws in states with a history of discrimination. The Supreme Court has since invalidated the provision, known as Section 5.

Knowledge of torture policy

Questions about the rules governing detention of enemy combatants are likely to surface as they did during Kavanaugh’s 2006 confirmation hearing. The issue was raised previously because Kavanaugh worked as a White House associate counsel at the time that President Bush developed his policy on detention and interrogation of terrorism subjects. Kavanaugh testified then that he was “not involved.”

Bush’s interrogation policy was laid out in what became known as the “torture memo,” which said that using what were called “enhanced interrogation techniques” on terrorism suspects “may be justified” and that international laws against torture may not apply. The revelation of the interrogation policy prompted much protest, including from Sen. John McCain (R-Ariz.), and Kavanaugh testified that “I do not agree with the legal analysis in the memorandum.”

Kavanaugh’s denial of knowledge about the policy later came into question when The Washington Post revealed a year later that he had participated in a meeting in the White House counsel’s office in which he had been asked his opinion about how Justice Anthony M. Kennedy — for whom he had clerked — was likely to view the matter. Some Democrats have said the revelation raises questions about the accuracy of his 2006 testimony, and they plan to ask him about it at the hearing.

The Kenneth Starr years

Kavanaugh played a significant role in the investigation into whether President Clinton lied when he denied in a civil lawsuit that he had a sexual relationship with intern Monica Lewinsky. In a 1998 memo, he proposed a list of questions that Clinton should be asked and made clear his disdain for Clinton’s actions.

“After reflecting this evening, I am strongly opposed to giving the President any ‘break’ in the questioning regarding the details of the Lewinsky relationship” unless he “resigns” or “confesses perjury,” Kavanaugh wrote.

“He has required the urgent attention of the courts and the Supreme Court for frivolous privilege claims — all to cover up his oral sex from an intern. He has lied to his aides. He has lied to the American people. He has tried to disgrace you and this Office with a sustained propaganda campaign that would make Nixon blush.”

Democrats may ask Kavanaugh whether he would apply the same standard of toughness against Trump in the Mueller probe, especially given that Kavanaugh has since said that a sitting president should not be subject to distracting investigations.

Campaign finance laws

In a 2011 decision, Kavanaugh upheld a federal law banning political donations from foreigners temporarily in the United States — barring them from contributing to political parties and groups or spending to advocate for or against candidates. His opinion did not rule out allowing foreigners to spend money on independent advocacy campaigns.

A Russian company accused by Mueller of being part of an operation to disrupt the 2016 presidential campaign repeatedly cites Kavanaugh’s decision to argue that the charge should be thrown out.

More broadly, Kavanaugh appears to fit the mold of Scalia, who joined the court’s conservatives — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — as skeptics of the constitutionality of many campaign finance restrictions.

In 2010, Kavanaugh joined the D.C. Circuit majority in ruling in v. FEC that federal contribution limits cannot be applied to “independent expenditure committees.” And in 2009, he ruled against regulations in Emily’s List v. FEC that required independent nonprofit organizations to comply with federal contribution limits.

Robert Barnes contributed to this report.