Breaking down the Kavanaugh hearings: Protests, political drama, and the future of the Supreme Court

Protests, interruptions, hedging and more marked the first days of Supreme Court nominee Brett Kavanaugh’s confirmation hearings.

On Tuesday, hearings began for Supreme Court hopeful Brett Kavanaugh. He was nominated to replace Justice Anthony Kennedy, who has already retired from the position after stepping down earlier this year. The hearings were marked from the start by high tensions amongst Senators, constituents, and the protestors outside the hearing itself.

Protestors were arguably more vocal at this hearing than others from the past. Many were clearly concerned about Kavanaugh’s conservative stance on abortion and women’s rights. In reaction to his policies, a striking collection of protestors from the liberal Demand Justice advocacy group lined the public walkways of the Hart Senate Office building. They were dressed in red clothes and large, white headdresses reminiscent of those seen on the novel turned streaming TV series, The Handmaid’s Tale. In the series, women are stripped of their rights under a deeply conservative and highly patriarchal Christian government.

Other protestors pointed to over 42,000 pages of documents that were destroyed the night of Labor Day, some of which they said could have contained information relevant to the hearings.

According to Capitol Police on Thursday, around 70 protestors were removed from the chambers and arrested for disrupting the hearing. Reacting to this, Senator John Cornyn (R-Texas), said that the committee was being held to “mob rule”. He also said that Democrats, many of whom interrupted other Senators such as committee leader Sen. Charles Grassley (R-Iowa), would have been held in contempt of court if this had taken place in a courtroom. Others noted that many Democrats had already met in order to plan their behavior during the hearings.

Meanwhile, Sen. Patrick Leahy (D-Vermont) turned his ire towards the Judiciary Committee. “I’m just sorry to see the Senate Judiciary Committee descend this way,” he said. “This is not the Senate Judiciary Committee I saw when I came to the U.S. Senate.” Quite a few Democratic politicians were still angry about the failed nomination of Merrick Garland, President Barack Obama’s pick to fill the deceased Justice Antonin Scalia’s spot during his own administration. Republican resistance at the time kept Garland from even making it to a confirmation hearing. Lawmakers also refused to meet with Garland and chose instead to leave Scalia’s vacant seat open for a year.

Why are people nervous about Kavanaugh?

During his career, Justice Kennedy established himself as an important swing vote on the court. While other justices could be reliably expected to make their decisions based on previous party affiliations or established political backgrounds, Kennedy was more difficult to predict. He resisted easy ideological paths and often cast his vote on the merits of an individual case as he judged them, rather than on the larger issues that informed them.

Because Supreme Court justices are appointed for life, only retirement or their own passing leaves an open spot on the bench. Justices are also appointed by the sitting president, then approved by Congress. This means that, while a White House administration may have gone within the one to two terms allotted to a president, a justice appointed by the same president can use their political clout for many years to come. This is part of the system of checks and balances that are meant to keep different political leanings in check, without one in particular dominating the American government.

Yet, the nomination of a tried and true conservative such as Brett Kavanaugh is enough to still make some worry. Currently, the Supreme Court is somewhat evenly split, depending on the case and the decisions of the individual justices. With Kavanaugh voting reliably to the right, however, it is possible that the court will uphold more conservative views for a long time to come.

This possibility alone concerned some of the Senators questioning Kavanaugh during his confirmation hearings this week. So, too, did his seeming inability to answer some questions. When asked if whether or not he thought that a sitting president should be subpoenaed, Kavanaugh refused to answer what he said was a purely hypothetical question, though he did state that no one was truly above the law. “I think the first quality of a good judge in our constitutional system is independence,” Kavanaugh told Senators. He also did not clearly comment on whether or not presidents could pardon themselves.

What Kavanaugh could do on the Supreme Court

Kavanaugh’s critics contend that these are indeed very relevant questions, given the ongoing investigation concerning Russian interference in the 2016 presidential election. Whether or not that interference significantly affected Trump’s path to the White House is unclear. However, the investigation and its special counsel, Robert S. Mueller III, have uncovered evidence that Trump’s associates maintained suspicious connections with foreign powers. Many have speculated that the investigation is moving ever closer to the president himself, though definitive evidence of any lawbreaking has not been uncovered.

Others are concerned that, with a Justice Kavanaugh, certain landmark decisions may be reversed. When asked about his legal opinions on abortion and especially on the 1973 Roe v. Wade case that legalized abortion throughout the United States, Kavanaugh was again hard to pin down. He said that Roe v. Wade was an “important precedent of the Supreme Court that has been reaffirmed many times”. Yet that did little to calm supporters of abortion rights, who claim that Kavanaugh could be the deciding vote on a future hypothetical case overturning Roe v. Wade.

As for gun rights, Kavanaugh does have something of a track record in favor of gun ownership. He resisted a Washington, D.C. ban on semi-automatic rifles via a dissent written for the U.S. Court of Appeals for the District of Columbia. This case was known as Heller II after an earlier case, 2008’s District of Columbia v. Heller, interpreted the Second Amendment as the individual (rather than collective) right to bear arms.

When Senator Dianne Feinstein asked Kavanaugh to further explain his stance on gun control, he was somewhat more direct. School shootings, where semi-automatic guns have been the majority of the deadly weapons used, are, of course, bad. Yet, said Kavanaugh, there are many American citizens who rightfully own these same types of weapons under the Second Amendment.

Recently released documents may have Kavanaugh explaining some of his stances on Friday. While today’s Kavanaugh was more circumspect, his prior attitudes were often more direct.

What is probably going to happen

Despite the vocal protestors and less dramatic resistance from Democratic lawmakers, it is likely that Kavanaugh will make his way onto the Supreme Court as a Justice. There is little sign of resistance from Republicans in Congress, who currently carry a small but meaningful majority in the Senate.

Meanwhile, not all Democrats have definitively said how they will vote, meaning that they may join their Republican colleagues in supporting Kavanaugh. This vote is likely to happy by the end of September. If he is confirmed, Kavanaugh will begin work when the Supreme Court begins its next term in October.

Until then, expect continued protests from politicians and regular citizens alike.