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Could Trump's Supreme Court Overturn Roe v. Wade, Gay Marriage?

Democrats protest as U.S. high court nominee's chaotic hearing opens

A nameplate for Judge Brett Kavanaugh sits on the desk where he will testify before Senate Judiciary Committee during his Supreme Court confirmation hearing in the Hart Senate Office Building on Capitol Hill, September 4, 2018 in Washington, DC.
Drew Angerer/Getty Images/AFP

The Senate confirmation hearing for Brett Kavanaugh, U.S. President Donald Trump's U.S. Supreme Court pick, opened in chaos on Tuesday, as Democrats complained about Republicans blocking access to documents stemming from the nominee's previous work in the White House under President George W. Bush.

News photographers clicked pictures of a smiling Kavanaugh as he entered the hearing room. But moments after Judiciary Committee Chairman Chuck Grassley opened the hearing, Democrats protested the withholding of the documents and asked to have the proceedings adjourned.

Several protesters also disrupted the opening of the hearing, with one shouting "this is a travesty of justice."

"We cannot possibly move forward. We have not had an opportunity to have a meaningful hearing," Democratic Senator Kamala Harris said, while Senator Cory Booker appealed to Grassley's "sense of decency and integrity."

"What are we trying to hide? Why are we rushing?" asked Democratic Senator Patrick Leahy.

Live: Kavanaugh’s Supreme Court confirmation hearing

Democrats have demanded in vain to see documents relating to the three years Kavanaugh, nominated by Trump for a lifetime job on the top U.S. court, spent as staff secretary to Bush, a job that involved managing paper flow from advisers to the president. Kavanaugh held that job from 2003 to 2006.

Grassley accused the Democrats of obstruction.

Ahead of the hearing, the conservative appellate judge was breezing past swirling questions over his views on executive power and his approach to gay marriage, abortion and other legal issues. Kavanaugh left some Republicans with the impression that his earlier reluctance to investigate sitting presidents would not impede the Russia investigation of special counsel Robert Mueller. Other senators avoided such queries, preferring more of a get-to-know-you session with the 53-year-old judge to hear his story.

Ask the GOP senators what they’re learning in their private chats and they’ll tell you the following: Kavanaugh loves his family. Lives for the law. And, like the president he once worked for, George W. Bush, he’s open and chatty, the kind of guy you’d like to have a beer with.

Viewers just tuning into the battle should expect to see Kavanaugh portrayed by fellow Republicans as a principled jurist who has no preconceived ideas about the law. Democrats will try to paint U.S. President Donald Trump’s nominee as a results-oriented conservative who wants to undo abortion rights and generally push the Supreme Court to the right.

Lawmakers know the public is watching, but as the nomination hearing gets going and lawmakers seek to probe the nominee’s views, they often slip into using legal jargon and refer to past Supreme Court cases in shorthand. It can sound as though they’re talking in code.

Expect senators to use these terms at Kavanaugh’s hearing, starting Tuesday:

ROE V. WADE, PLANNED PARENTHOOD V. CASEY

These cases from 1973 and 1992, respectively, are the two main decisions on abortion rights. Kavanaugh has not said whether he believes they were decided correctly, and he’s not likely to do so during the hearings. But he is certain to be asked repeatedly about abortion, Roe and Casey. He has provided two recent clues to his views, in the form of a speech that praised the late Chief Justice William Rehnquist’s dissent in Roe and Kavanaugh’s own dissenting opinion that would have denied immediate access to an abortion for an immigrant teen in federal custody.

STARE DECISIS

Latin for to stand by things decided. It’s the legal principle that judges use to base decisions on earlier ones. When it comes up at confirmation hearings, it’s often in reference to abortion rights and it’s usually a way of asking if a nominee will overturn certain decisions — like Roe v. Wade. Nominees invariably invoke stare decisis, or refer to something as settled law, to try to reassure senators that they have great respect for Supreme Court precedents, without committing to preserve any specific one. Respect for precedent, however, has its limits. Last term, the court squarely overturned three precedents - which has many on the left worried about a conservative court ruling on issues like abortion rights and gay marriage. 

CHEVRON DEFERENCE

A 1984 Supreme Court ruling, in a case involving the Chevron oil company, says that when laws aren’t crystal clear, federal agencies should be allowed to fill in the details. That’s what agencies do — on environmental regulations, workplace standards, consumer protections and even immigration law. But a growing conservative legal movement has questioned the Chevron decision. Kavanaugh has expressed some support for limiting agencies’ discretion, as have several conservative justices. If a future Supreme Court were to limit the Chevron ruling, it would mark a big change in the law that would potentially make it harder to sustain governmental regulations.

RECUSAL

A judge’s decision to not take part in a case, usually because he participated in it at an earlier stage, or has a financial or personal conflict. Democrats are going to press Kavanaugh to pledge to recuse himself if a case comes to the court involving Trump and special counsel Robert Mueller’s Russia investigation. He is not likely to commit to do so.

UNITARY EXECUTIVE

Kavanaugh will be asked to explain his view of just how much power a president has under the unitary executive theory of constitutional law. Kavanaugh has written judicial opinions and law review articles that suggest he supports the idea that a president may decline to enforce a law he believes is unconstitutional. Questioners also may focus on Kavanaugh’s service in the White House under George W. Bush, who used signing statements to legislation that his administration saw as unreasonable or unconstitutional limits on executive power.

SUBPOENA

A legal order requiring a person to testify as a witness, it sometime also requires a person to turn over documents or other records under their control. Kavanaugh should expect to be asked whether the president can be subpoenaed, an open legal question that could reach the Supreme Court if Mueller tries to force the president to testify as part of the Russia investigation. Also an open question: Whether the president can be indicted, meaning charged with a crime.

AFFIRMATIVE ACTION

The term for efforts to improve opportunities for minorities, generally in employment and college admissions. It’s a standard topic for Supreme Court confirmation hearings, particularly after a 2003 Supreme Court decision that predicted affirmative action wouldn’t be necessary in 25 years. Senators may bring up a comment Kavanaugh made in 1999 about a different Supreme Court case, saying he believed it was “one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of government.”

BALLS AND STRIKES

OK, that’s not a legal term, but it will come up anyway. Chief Justice John Roberts famously compared judges to umpires during his 2005 confirmation hearing, saying neither makes the rules, but rather both just apply them. He said he’d remember if confirmed that his job is “to call balls and strikes.” Lawmakers love to ask nominees about this analogy.

“LET HIM ANSWER THE QUESTION”

Again, not a legal term. Expect Senate Judiciary Chairman Chuck Grassley, or the Republican sitting in his place, to interject when Democrats’ questioning of Kavanaugh gets especially heated, or they try to cut in if they feel Kavanaugh is trying to filibuster. Question time is limited and senators often feel free to jump in to move the questioning along.