What to expect from Brett Kavanaugh's Supreme Court confirmation hearings this week

  • The Senate Judiciary Committee will hold its first hearing on Tuesday with Brett Kavanaugh, President Donald Trump's second nominee to the U.S. Supreme Court.
  • Don't expect much to come out of it.
  • "I think very few questions are going to fall into the category of questions that the judge can answer, and that they expect an answer to," said Willy Jay, a former assistant to the Solicitor General who is now a partner at the law firm Goodwin Procter.

The Senate Judiciary Committee will hold its first hearing on Tuesday with Brett Kavanaugh, President Donald Trump's second nominee to the U.S. Supreme Court.

Don't expect much to come out of it.

Elena Kagan, in 1995, famously described confirmation hearings as a "vapid and hollow charade." There is little evidence that anything has changed — and much to suggest the opposite. (Kagan, by the way, was eventually confirmed to the Supreme Court in 2010.)

Nominees know they do not have much to gain from discussing how they would rule on particular cases, and senators largely know how they will vote before the hearing ever starts.

The make up of the Senate is narrowly in favor of Republicans as they head into the hearings. Following the passing of former Arizona senator John McCain, Republicans hold 50 seats, compared to Democrats' 49.

Three Democrats are thought to be swing votes. Sen. Heidi Heitkamp of North Dakota, Sen. Joe Manchin of West Virginia, and Sen. Joe Donnelly of Indiana all voted to confirm Neil Gorsuch, Trump's last nominee, to the high court.

The three senators, the only Democrats to vote to confirm Gorsuch, are running for re-election this year in states that Trump carried in 2016, adding pressure on the lawmakers to break with their party. Gorsuch was confirmed by a vote of 54-45.

The three Democratic lawmakers have said that they will wait until the confirmation hearings to decide how they will vote, but it's unlikely that much new information will emerge.

"I think very few questions are going to fall into the category of questions that the judge can answer, and that they expect an answer to," said Willy Jay, a former assistant to the solicitor general and now a partner at the law firm Goodwin Procter.

The practice of a Supreme Court nominee dodging a tricky question is so pervasive it has a nickname: The Ginsburg Rule. It is named after Justice Ruth Bader Ginsburg, who said during her hearing in 1993 that it would be improper for her to disclose how she might rule in cases that came before her. Later she was accused — some say wrongly — of ducking questions.

It doesn't mean senators won't try. Democrats are certain to try to get Kavanaugh to say whether he would overturn or roll back Roe v. Wade, the landmark Supreme Court decision protecting abortion rights.

It's unlikely that Kavanaugh will offer a meaningful response, however. While nominees appointed by Democrats have historically said that Roe is settled law, those appointed by Republican presidents — from Justice Antonin Scalia in 1986 to Justice Neil Gorsuch last year — have generally avoided answering.

Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine have said the issue could be a significant factor in shaping their votes.

Democrats will also try to get Kavanaugh to address his contentious views on executive power, in light of special counsel Robert Mueller's Russia probe. Kavanaugh has expressed skepticism about the 1974 tapes case that ultimately led to President Richard Nixon's resignation during the Watergate scandal.

In 2016, Kavanaugh said he would "put the final nail in" a 1988 opinion that protected independent counsel prosecutors. The nominee's take has caused some worry among Mueller's defenders. Democrats have said that Trump should not be permitted to name a nominee to the Supreme Court while the probe continues.

While Kavanaugh will be able to evade legal questions, he is also expected to address personal controversies that have surfaced. A major one will be his ties to former federal judge Alex Kozinski, Kavanaugh's former boss and mentor, who has been dogged by accusations of sexual misconduct. There is no evidence to suggest that Kavanaugh had any knowledge of the alleged misdeeds, and the White House has said he did not.

Kozinski stepped down from the 9th U.S. Court of Appeals in December after more than a dozen women accused him of sexual harassment and other misconduct.

"Alex Kozinski's relationship with Judge Kavanaugh is a legitimate area of inquiry, and I plan to question Judge Kavanaugh on this topic," Sen. Mazie Hirono, D-HI, told The Associated Press.