Flurry of preparations for High Court nominee
Washington — Supreme Court nominee Brett Kavanaugh isn’t the only one engaging in practice sessions ahead of this week’s grueling confirmation hearing before the Senate Judiciary Committee.
Senators from both parties also are prepping for the four-day marathon — including Wednesday’s multi-hour question-and-answer exchange — in which Kavanaugh’s views on the biggest legal issues of the day are expected to be mined for the conservative judge’s approach to the law.
Abortion, executive power, campaign finance reform, regulatory oversight and gun violence are among the many topics senators in particular are preparing to probe after the 53-year-old appellate court judge raises his right hand and is sworn in for the hearings.
Though Kavanaugh may be the person sitting in front of senators, many of the questions he gets are likely to be focused on another man: President Donald Trump.
Ongoing investigations swirling around Trump mean that lawmakers will want to know how Kavanaugh might vote on questions such as whether a president can be charged with a crime or be forced to testify as part of an investigation. Democrats also are expected to ask Kavanaugh whether he can be truly independent from the president who picked him, and will press him to promise that, if confirmed, he won’t participate in cases involving any investigation of Trump.
Supreme Court nominees avoid giving legal opinions during their confirmation hearings, saying that would be improper. But Kavanaugh has said or written a number of things that suggest he favors giving the president a good deal of legal breathing room, and he will be asked about those statements.
Legal experts are divided on the question of whether a sitting president can be charged with a crime. At one point in 1998, Kavanaugh’s answer seemed to be no. Kavanaugh, who worked on the Whitewater investigation that resulted in President Bill Clinton’s impeachment, was a panelist at a Georgetown law school event where the moderator asked: “How many of you believe as a matter of law that a sitting president cannot be indicted during the term of office?” Kavanaugh raised his hand.
Two Justice Department reports, one in 1973 and one in 2000, came to the same conclusion. And Trump’s lawyer, Rudy Giuliani, has said that special counsel Robert Mueller’s team has indicated they would not attempt to indict Trump.
Whether a sitting president must respond to a subpoena and answer questions from investigators is another open question, and one perhaps more likely than the issue of indictment to come before the Supreme Court.
Mueller hasn’t said that he intends to subpoena Trump, but his team raised the prospect with Trump’s lawyers in March. If that happens, Trump’s lawyer has said he’s ready to fight all the way to the Supreme Court. Lawmakers will want to probe how sympathetic Kavanaugh would be to the president’s arguments in that case.
In his 2009 article, Kavanaugh wrote that his time working in President George W. Bush’s White House led him to believe that “the President should be excused from some of the burdens of ordinary citizenship while serving in office.” He said Congress should pass a law exempting the president from answering investigators’ questions.
“Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting,” he wrote, without expressly saying whether he believes presidents’ testimony can be subpoenaed.
The White House has assembled a team of attorneys from the counsel’s office, Kavanaugh’s roster of former clerks, and other Republican lawyers to document his record and meticulously prepare him for the questions they expect him to face. For every line of questioning, the lawyers and communications aides have prepared suggested responses for Kavanaugh to deploy and amplifying material to release to the public.
The operation is standard for any confirmation process, but given the polarized political environment the White House is preparing for an intense battle.
The process began shortly after Kavanaugh’s selection, with the team arranging binders on every conceivable issue. They line the office used by the confirmation team in the Eisenhower Executive Office Building. White House attorneys and his former law clerks engaged Kavanaugh in question and answer sessions on those topics, as communications and legislative affairs aides looked on. Those conversations evolved into topical sessions and then to full mock hearings. The committee’s former chairman, Sen. Orrin Hatch, R-Utah, chaired the mock sessions, as he and a number of other senators took turns grilling the judge.
Sen. Lindsey Graham, R-S.C., also participated, according to a source familiar with the sessions. Justice Department and White House attorneys, as well as outside allies, stood in for key Republican and Democratic senators on the committee. The officials would not say how many mock hearings have been conducted, but they insist Kavanaugh is well prepared.
In the office suite serving as a substitute for the committee’s hearing room, White House aides have sought to make the hours-long sessions as realistic as possible, employing timers and lights like those used for witnesses and even having staffers role-play as expected protesters.
Senators, at least on the Democratic side, are engaged in similar moot sessions.
Sen. Chris Coons, D-Del., enlisted the expertise of Ron Klain, a former White House official and top debate prep adviser, for mock exchanges. He plans to focus much of his inquiry into Kavanaugh’s views on executive power. For the first round of questions, each senator on the panel is allotted 30 minutes.
“There’s a lot of different topics to focus on, but given the context we’re in, I am most concerned about Judge Kavanaugh’s long and demonstrated record of thinking that the executive branch should have more power than it does now,” Coons said. “It has to give one pause in a context where our current president is currently being investing by a special counsel.”
Republicans are also preparing but an aide to the committee chairman, Sen. Chuck Grassley of Iowa, said other than reading his questions aloud a few times beforehand, he’s doesn’t feel the need to engage in practice sessions.
“This is his 15th Supreme Court hearing,” said spokesman Taylor Foy about the 84-year-old senator. “He’s good.”
Once Kavanaugh settles in before the committee, a crew of White House advisers, lawyers, and GOP strategists won’t be far away. Senior aides are set to huddle in a room off the committee’s hearing room, with a larger group of staffers working out of a “war room” in the vice president’s office suite in the Capitol.
There Judiciary Committee staff, leadership aides, and White House allies will coordinate their rapid-response operation with the Republican National Committee and conservative outside groups like America Rising and the Judicial Crisis Network.
The RNC will be launching a public messaging push, which includes a website to educate Americans about Kavanaugh’s record.
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