The Precedent That Democrats Want Brett Kavanaugh to Break

Modern Supreme Court nominees never discuss how they feel about specific cases. Chuck Schumer believes that should change when President Trump’s pick faces the Senate.

Alex Brandon / AP

Democrats want to know, Judge Kavanaugh: How will you rule?

For at least 25 years, it’s been the closest thing to an off-limits question at any Supreme Court confirmation hearing. Knowing a presidential nominee will never answer, senators almost never explicitly ask how he or she would decide a specific case that could come before the high court.

But as President Trump’s pick, Judge Brett Kavanaugh, prepares to go before the Senate, Democratic leaders are signaling that that norm—like so many others in the increasingly partisan Supreme Court nomination process—is no longer operative.

In a speech on Monday, delivered hours before Trump unveiled his nominee at the White House, Senate Minority Leader Chuck Schumer declared that whoever the president selected to replace retiring Justice Anthony Kennedy “has an obligation—a serious and solemn obligation—to share their personal views” on a range of contentious legal issues. Schumer alluded to the role of money in politics and the Affordable Care Act as examples of two issues Democrats want answers on. But the most pressing question from Democrats is this: Do you support a woman’s constitutional right to an abortion, and will you vote to overturn the 1973 decision that guaranteed it nationwide, Roe v. Wade?

Republicans immediately scoffed at Schumer’s suggestion that Kavanaugh should be forced to answer such specific questions, with Senator John Cornyn, the party’s second-ranking member, calling it a “pipe dream.” But for Democrats, putting Kavanaugh on the spot may be their only hope of stopping his nomination. In a flurry of statements immediately after—and, in some cases, before—Trump’s announcement, Senate Democrats vowed to oppose Kavanaugh on the grounds that, as a favorite of the conservative Federalist Society, he would provide a fifth vote to overturn Roe v. Wade, side with corporate interests against working people, and generally move an already conservative Court further to the right.

“Judge Brett Kavanaugh represents a direct and fundamental threat to [the] promise of equality and so I will oppose his nomination to the Supreme Court,” said Senator Kamala Harris of California, a member of the Judiciary Committee and a possible White House contender in 2020, in a statement emailed minutes after Trump and Kavanaugh finished speaking on Monday night. “Specifically, as a replacement for Justice Anthony Kennedy, his nomination presents an existential threat to the health care of hundreds of millions of Americans.”

Schumer vowed to oppose Kavanaugh “with everything I have.” Senator Bob Casey of Pennsylvania, an anti-abortion Democrat up for reelection this fall, didn’t bother to wait for Trump’s 9 p.m. unveiling. “I will oppose the nomination the president will make tonight because it represents a corrupt bargain with the far right, big corporations, and Washington special interests,” Casey tweeted shortly before noon.

Other Democrats said they would oppose Kavanaugh on the basis that Trump should not make a lifetime appointment to the Supreme Court while he is under investigation. Senator Cory Booker of New Jersey noted that the appellate judge, who worked for Kenneth Starr during his investigation of Bill Clinton in the 1990s, has written that presidents should not be subject to such inquiries while in office. “That,” Booker said, “should raise enormous red flags.”

Senator Tim Kaine of Virginia, who has backed some of Trump’s judicial nominees, did not take an immediate position on Kavanaugh, but he urged the Senate to wait until after the November midterm elections to vote on his nomination. Senate Majority Leader Mitch McConnell intends to ignore that advice, because he wants to install Kavanaugh for the beginning of the Court’s next term in October.

Ahead of Monday’s announcement, all but a few Democrats were expected to oppose Trump’s nominee, regardless of who made the cut. On their own, however, Democrats don’t have the votes to block Kavanaugh, since McConnell moved last year to eliminate the filibuster for all presidential nominations in order to secure the confirmation of Justice Neil Gorsuch. With 49 votes, Democrats would need at least one Republican, and possibly two, to oppose Kavanaugh and kill his nomination. (The GOP has 51 seats, but Senator John McCain has not cast a vote all year as he undergoes treatment for brain cancer in Arizona.)

Schumer’s new strategy seems aimed less at his own members than at Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska, who both support abortion rights. Collins in particular has said she would not vote to confirm someone “who demonstrated hostility to Roe v. Wade.” In a brief statement Monday night, she did not indicate how she might vote on Kavanaugh. If Democrats could somehow get Kavanaugh to criticize the decision, that could be enough to sway Collins against him.

But that’s highly unlikely to happen. As Republicans have been quick to point out, it was a nominee of Clinton’s, Ruth Bader Ginsburg, who, despite winning acclaim as an advocate for the legal rights of women, refused to tell the Senate how she would decide specific cases. “A judge sworn to decide impartially can offer no forecasts, no hints,” she said at her 1993 confirmation hearing, “for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

Nominees of both parties have followed that unwritten standard ever since. Schumer himself said a year ago, during the debate over Gorsuch’s nomination: “There is a grand tradition that I support that you can’t ask a judge who’s nominated for a—or a potential judge who is nominated—for a judgeship about a specific case that might come before them.”

But with the ideological and legal stakes for Kavanaugh’s nomination arguably higher than for any Supreme Court pick in decades, Schumer moved to toss another norm aside. Nominees typically hew to a script, vowing to generally respect precedents of the Supreme Court under the principle of stare decisis while not boxing themselves into any particular one. Kavanaugh offered little to suggest he would deviate from that line on Monday night. “If confirmed by the Senate, I will keep an open mind in every case,” he said, while offering customary nods to following the Constitution, the rule of law, “and precedent.”

In his speech, Schumer gave examples of how each Republican appointee of the last two decades, Chief Justice John Roberts and Associate Justices Gorsuch and Samuel Alito, had voted to overturn longstanding Court decisions after making the same claim to honor precedent. He referred specifically to cases involving voting rights, campaign finance, and labor rights. “This standard—settled law, stare decisis—is no longer an adequate standard,” Schumer said. “When they say they will obey settled law, you can’t believe it. You can’t believe it.”

Whether the Democrats who face the toughest choices on Kavanaugh will accept Schumer’s standard is unclear. Three Democrats—Senators Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana—voted to confirm Gorsuch last year after it became clear he would have enough Republican support to prevail. All three are running in difficult reelection campaigns in states Trump carried easily in 2016. But notably, all three—along with Collins and Murkowski—declined invitations to appear at the White House for the president’s announcement Monday night.

Schumer’s ultimate goal is to keep his party in line and hope that Collins or Murkowski (or another Republican) defects on Trump’s pick. But the Democrats’ first job is nearly as tall an order—to pierce the seemingly impenetrable shield around the “personal views” of Supreme Court nominees and force Kavanaugh to be more candid than any modern contender before him.