Supreme Court nominee Brett Kavanaugh next to President Donald Trump, July 9, 2018. (Reuters / Jim Bourg)
The curtain goes up today on the Supreme Court confirmation hearing for Brett Kavanaugh. Given the importance of the job at hand, the hearings deserve the widest possible audience—but, like many arcane rituals, the proceedings can be hard to follow if you don’t know the key code words and signals.
We understand. That’s why we’ve come up with a handy guide—based on experience with a few other recent (mostly Republican) confirmation hearings, as well as Kavanaugh’s own comments—to help in the challenging process of decoding Kavanaugh. After all, your rights (and those of millions of your fellow Americans) are at stake.
If He Says: “If confirmed to the Supreme Court, I will uphold precedent.”
It Means: A handy dodge that sounds great, especially in those situations when somebody asks if you think seminal rulings people really care about, such as Brown v. Board of Education, should stand. (In case you missed it, a number of Trump’s lower-court nominees have been refusing to answer that question.) But experience shows it means very little. Justice Neil Gorsuch said the same thing at his confirmation hearing. A few months later, safely ensconced on the Court, he voted to overturn a 40-year-old precedent that protected workers in the public sector.
If He Says: “As far as I’m concerned, the ruling in Roe v. Wade is settled law.”
It Means: This is a variation on the theme above, and it also signals to the right wing that there’s nothing to worry about! It’s what Chief Justice John Roberts said before casting votes that severely hampered women’s access to abortion care. Anti-choice activists, the Federalist Society, and everyone else who is counting on Kavanaugh to do away with abortion rights knows there are plenty of ways a right-wing judge can eviscerate a precedent like Roe without actually overturning it.
If He Says: “I’m proud to have bipartisan/women’s support. I have wonderful women in my family, and two daughters.”
It Means: The disarm-and-charm strategy. How could someone with daughters, and a wife, and a mother, not support rights and opportunities for women? Unfortunately, the vast majority of laws and policies that held women back for decades were engineered by men who also had mothers. Many of them had wives and daughters as well. Shocking.
As for the support of women who are not in his family, we know Kavanaugh has a letter signed by women who were… his law clerks: former employees whose careers have a lot to do with staying in this powerful man’s good graces. One self-described feminist lawyer wrote an op-ed endorsing Kavanaugh and is scheduled to speak at his hearing. That is probably a smart career move for her, since she argues cases before the Supreme Court fairly often.
If He Says: “In responding to questions, I feel it’s best to follow the Ginsburg Rule.”
It Means: Invoking a progressive icon as a role model. What could be wrong with that? Conservatives like to claim that Ruth Bader Ginsburg set a precedent for information-free confirmation hearings when she said a nominee should offer “no forecasts, no hints” regarding possible future rulings. But Ginsburg was forthcoming about abortion rights at her own hearing, when she said that a woman’s decision to bear a child is one she “must make for herself,” and when “government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.” Anyway, Kavanaugh shouldn’t hide behind Ginsburg’s robes now, when he’s already opined freely on Supreme Court cases in law review articles, speeches, and written opinions.
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If He Says: “A justice’s job is to call balls and strikes.”
It Means: Another signal to right-wingers by way of a nod to Chief Justice Roberts, who said this same thing at his hearing. Of course, Roberts’s tireless work since then to advance an ultraconservative pro-corporate agenda on the Court hasn’t gone unnoticed.
At least we’ve been warned.
Nan AronNan Aron is president of the Alliance for Justice Action Campaign.