A dramatic week of often-contentious hearings before the Senate Judiciary Committee saw several-hundred protesters arrested and dozens disrupting the proceedings as senators grilled Brett Kavanaugh, President Trump’s nominee to the U.S. Supreme Court to replace retiring Justice Anthony Kennedy.
Kavanaugh has received high marks from the American Bar Association and more than a dozen witnesses — mostly former law students and law clerks — testified on his behalf on the final day of hearings Sept. 8.
But while Kavanaugh is beloved by conservatives, those across the aisle feel equally strongly about his troubling views on abortion, contraception, gay rights, the Affordable Care Act, minority voting rights and gun control. Democratic senators tried to elicit as much information on those key issues as possible over several days of questioning.
Kamala Harris (D-CA), a likely front-runner for the 2020 presidential race and the former attorney general of California, was one of Kavanaugh’s toughest questioners.
She was also the first senator to query Kavanaugh on whether or not he considered Obergefell to be settled law.
In an exchange that appeared to leave Kavanaugh unsettled, Harris first asked if the judge considered Obergefell to be a landmark civil-rights case like Brown v. Topeka Board of Education, which decided segregation.
Harris pressed him: “My question is very specific. Can you comment on your personal opinion on whether Obergefell was correctly decided? It’s a yes or no. Please.”
Kavanaugh referenced Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which SCOTUS ruled against gay plaintiffs who wanted a wedding cake and for the bakery that refused them service. He refused to acknowledge either that Obergefell was a civil-rights case or that it was settled law.
Later in the hearings, Sen. Cory Booker (D-NJ), like Harris a longtime LGBTQ ally, asked Kavanaugh a series of questions about whether he agreed that it would be “morally wrong” to fire someone on the basis of sexual orientation.
Kavanaugh refused to answer, citing pending cases. Booker pressed him further and he again demurred.
These non-answers to these and other questions on reproductive rights were troubling to the senators as well as constituents. Religious-rights groups consider Kavanaugh’s confirmation a step toward overturning Roe and Obergefell, in addition to several state bans on conversion therapy.
The full Senate now meets to consider Kavanaugh for the lifetime position. Confirmation requires a simple majority of the senators. Currently there are 47 Democrats, two independents who most often vote with Democrats and 51 Republicans.
Several Democrats, including the only out lesbian in all of Congress, Sen. Tammy Baldwin (D-WI), face difficult re-election campaigns in November in majority red states, making the Kavanaugh vote one that could lose them their elections
Pro-choice, LGBTQ, disability-rights and gun-control activists struggled to find ways to stop the confirmation of the nominee, who is a staunch originalist with more than 300 rulings from his 12 years on the D.C. Circuit Court. Kavanaugh was also staff secretary for former President George W. Bush and an assistant to Kenneth Starr, the independent counsel who led the investigation into former President Bill Clinton’s extramarital affair with Monica Lewinsky that led to impeachment proceedings.
Pro-choice activists were the most vociferous in and out of the Senate chamber. More than 3,000 hangers were sent to the office of Sen. Susan Collins (R-Maine). Hangers have long been a symbol of the days before legalized abortion when women frequently tried to self-abort using wire hangers through the cervix, sometimes ending in their deaths.
Trump previously asserted that he would only nominate judges to SCOTUS who would overturn Roe, which has been the locus of the nation’s abortion debate for decades.
Collins, one of the few pro-choice Republican senators and, as such, a potential “no” vote against Kavanaugh’s confirmation, had promised constituents that she would consider the judge’s views on abortion before voting. Collins had publicly voiced her concerns over whether Kavanaugh considers the landmark 1973 SCOTUS ruling in Roe v. Wade that legalized abortion “settled law” or whether he would seek to overturn the precedent-setting case.
The issues are stark for Democrats: Although Kennedy, a Republican, was appointed by Ronald Reagan, he was a “swing vote,” siding with liberal justices nearly as often as he did with conservatives.
Kennedy was renowned for two landmark rulings on gay rights. In Lawrence v. Texas in 2003, he wrote the opinion legalizing consensual sex between consenting gay and lesbian adults, striking down sodomy laws that had been used to arrest and jail gay men and lesbians for decades. In Obergefell v. Hodges in 2015, Kennedy wrote the opinion legalizing same-sex marriage.
He also authored the opinion in the landmark Pennsylvania case in 1992, Planned Parenthood v. Casey, which sought to overturn basic tenets of Roe v. Wade, the 1973 case that legalized abortion. In that decision, Kennedy affirmed Roe and rejected then-Gov. Bob Casey’s attempts to overturn it.
Nothing in Kavanaugh’s lengthy history suggests he will be anything like Kennedy, but rather like the most staunch conservatives on the bench.
The Democratic Coalition, a Democratic SuperPAC headed by Jon Cooper and Scott Dworkin, took concerns a step further when the hearings ended. Enlisting their attorney, J. Whitfield Larabee, they filed a criminal complaint against Kavanaugh with the Public Integrity Office of the Department of Justice. In the complaint — over 20 pages — Larabee asserts on behalf of Cooper and Dworkin that Kavanaugh lied under oath during the hearings several times, committing perjury.
The Human Rights Campaign has voiced its opposition to Kavanaugh since his nomination in July. HRC has a “Stop Kavanaugh” campaign. The organization’s statement on Kavanaugh is succinct: “His record is clear: Brett Kavanaugh poses a direct threat to LGBTQ equality, reproductive rights, affordable health care, immigrants’ rights, workers’ rights and so much more.”
After the hearings, Shannon Minter, legal director for the National Center for Lesbian Rights and a trans man who has argued several groundbreaking cases for gay and trans people, tweeted, “#Kavanaugh’s refusal to disavow, in any context, anti-#LGBT discrimination speaks volumes: he is telling us where he stands on LGBT equality & what we can expect.”