by Lisa Soronen, executive director, State, and Local Legal Center
If you were interested in the views of protesters, the details of the Federalist papers, Judge Kavanaugh’s most difficult job (working construction at age 16), and a broad-ranging discussion of executive power, Judge Kavanaugh’s confirmation hearings weren’t disappointing. If you were interested in knowing Judge Kavanaugh’s views on issues of importance to state and local governments, you might have been disappointed.
Generally, Supreme Court nominees give little away about their actual views on the law. Judge Kavanaugh was no exception. But he also wasn’t asked many hard-hitting questions on legal issues of importance to state and local governments—with the exception of the expected questions on abortion and gun rights.
Judge Kavanaugh’s testimony took place on the second and third day of the hearings.
Senator Feinstein cut to the chase and asked about abortion and guns, as did a number of other senators later on in the hearing. On abortion, Judge Kavanaugh acknowledged Roe v. Wade is settled law that was affirmed in 1992 in Planned Parenthood v. Casey. But unsurprisingly, he avoided answering what he might do if given a chance to vote to overrule Roe. Judge Kavanaugh seemed to have difficulty understanding Feinstein’s gun questions. Their conversation devolved into a disagreement on whether semiautomatic weapons are in common use or are commonly possessed.
Senator Klobuchar asked the broadest range of questions on cases and legal issues Judge Kavanaugh has decided. Most relevant to state and local governments, she asked him about his vote in a case holding that the Federal Communications Commission lacked the authority to issue net neutrality rules. Judge Kavanaugh responded that his approach is rooted in Supreme Court precedent. When asked about his views on judicial deference to federal agencies, he stated that he has “upheld agency decisions dozens of times.”
Senator Cruz gave Judge Kavanaugh his best opportunity to talk about how and why he thinks a number of particular legal doctrines are important. Most relevant to state and local governments, Judge Kavanaugh was asked to explain why federalism matters. Here is his answer paraphrased from the Supreme Court of the United States blog: “Again, it helps further individual liberty. If the US Constitution only protects up to a certain line, your state constitution might protect you further. It also provides a laboratory for democracy. State and local governments also affect people on the most direct basis. Federalism in that sense ensures accountability.” It is a great answer; however, it doesn’t tell us much about his views on issues like qualified immunity, public employment, land use, free speech, and preemption.
The three themes that dominated the third day of Judge Kavanaugh’s confirmation hearings were the same three topics discussed at length the day before: executive power, abortion, and gun rights. Executive power received the most attention. Making headlines were Senator Booker’s release of “committee confidential” Kavanagh emails discussing abortion and racial-profiling before they were cleared for release to the public, Judge Kavanaugh’s refusal to say whether he thinks Roe v. Wade was decided correctly, and his refusal to condemn President Trump’s attacks on the judiciary. Issues related to state and local governments received a little attention, including judicial deference to federal agencies, which was discussed a number of times the day before.
Presumably, to portray Kavanaugh as pro-employer, Senator Feinstein asked Judge Kavanaugh to discuss a case wherein a dissent he ruled against involved a trainer who was killed interacting with a killer whale. Senator Klobuchar noted that many states have restricted access to voting since Shelby County v. Holder, which struck down the preclearance formula in the Voting Rights Act. She asked whether courts should consider widespread efforts to restrict voting. Judge Kavanaugh responded that in a particular case he would want to see the record.
Senator Cruz, presumably to highlight Judge Kavanaugh’s support of religious liberty, asked Kavanaugh to discuss a Supreme Court amicus brief he wrote in a case involving prayer before high school football games in Texas.
When Senator Blumenthal asked Judge Kavanaugh how he would rule in Fourth Amendment search cases involving emerging technology, Judge Kavanaugh, unsurprisingly, didn’t answer directly. He did speak favorably about Chief Justice Roberts’ majority rulings in recent cases, which have favored criminal defendants, and a recent pro-privacy ruling of his own that the Supreme Court adopted.
Interestingly, Judge Kavanaugh discussed Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) a number of times with a few of the senators during the two days. He stated it stands for the proposition that “the days of discriminating against gay and lesbian Americans are over.” This case involved a cake maker who refused to create a wedding cake for a same-sex couple. The cake maker won his case because the Supreme Court concluded the Colorado Civil Rights Commission failed to give full and fair consideration to his religious objection.
Issues of interest to state and local governments may have received somewhat broader coverage on day three of the Kavanaugh hearings than day two—but none received much depth. To most accurately speculate about what kind of justice Judge Kavanaugh will be, his long tenure on the D.C. circuit is much more important than his hearing testimony. But the only state and local government this court hears appeals from is Washington, D.C.
What Justice Kennedy Means to State and Local Government. This 2018 blog post looks at the legacy of Justice Kennedy on state and local government issues.
Confirmation by Fire: How Might the Confirmation Process Affect Justice Gorsuch? This 2017 blog post looks at the previous confirmation process for Justice Gorsuch.
Ten Years of the Roberts Courts for State and Local Governments. This 2015 blog post looks at the first decade of rulings under Chief Justice Roberts.