Supreme Court nominee Brett Kavanaugh. Photo / AP file
Supreme Court nominee Brett Kavanaugh. Photo / AP file
Supreme Court nomination hearings are ostensibly one of the few moments when senators set aside politics and review a president's pick for one of the most consequential jobs in the land on his or her merits.
But that is so not the case here. The Senate's hearings for Judge Brett Kavanaugh start on Wednesday, in a uniquely hyperpartisan political moment, just two months before congressional elections and two years before another really big election for president.
In other words, it's a safe assumption that most everyone in that room will be driven by their own political narratives. Aides on both sides of the aisle say to expect fireworks.
So let's break down some of the big players and their motives to understand what to expect in the Kavanaugh hearings.
Kavanaugh: Avoid pitfalls, and say as little of substance as possible
Let's start with the most obvious player, who perhaps has the most obvious motive. Kavanaugh wants this job, and he is fully aware that nearly half the room doesn't want him to get it. He's also possibly aware of how thin is the ice he stands on.
If all Senate Democrats vote against him, Republicans can afford only one or two "no" votes, depending on when the vote happens and when John McCain's replacement arrives in the Senate. Kavanaugh knows he has no room for error.
Expect that caution to manifest in an avoidance of any questions about how he would decide certain cases, especially on hot-button issues like abortion, terrorism and presidential powers. Justice Neil Gorsuch perfected this say-nothing strategy in his confirmation hearings last year, when he wouldn't even give his opinion on something like the Second Amendment, saying it would be improper for him to come to a case with a publicly stated predetermined opinion.
Perhaps no committee is as chock-full of rumoured Democratic presidential candidates as the Senate Judiciary Committee. Senators Cory Booker, Kamala Harris and Amy Klobuchar are all potential 2020 candidates who will have a moment in the spotlight questioning Kavanaugh.
There are any number of ways these senators can leverage this moment, but a big one will be by trying to pin Kavanaugh on his views about presidential powers as they pertain to Trump. Once downright angry about President Bill Clinton's misdoings, Kavanaugh has since written that criminal investigations of sitting presidents aren't in the public interest.
These Democrats can juxtapose any sympathy Kavanaugh might express for the president with just how little of it they themselves feel for Trump. Given that there are factions of the Democratic base that want Trump impeached, that might be a smart strategy to get noticed.
The US Capitol in Washington at sunrise. The Republicans want to confirm Brett Kavanaugh as the next Supreme Court justice. Photo / AP file
The never-Trump Republicans: Decide how much they want to needle the President
There are two to four Republicans on the committee who could be classified as antagonists to Trump to some degree.
Senator Thom Tillis has introduced a bill to stop Trump from firing Special Counsel Robert Mueller. Senator Ben Sasse is a reliable critic when Trump steps outside Republican orthodoxy. Senator Lindsey Graham is an enemy turned golf buddy of Trump who is not afraid to criticise the President on occasion.
But it's Senator Jeff Flake of Arizona who may have the most to get off his chest in this hearing, points out Cornell law professor and constitutional expert Josh Chafetz. The hearings come a little more than a week after Flake's friend and colleague, McCain, died - and Trump showed zero interest in honouring McCain as the rest of Washington saw fit.
While other Republican senators have derided Trump's behaviour towards McCain's death as "disturbing," Flake has been publicly quiet about what must irritate him to no end. How much does he want to use this hearing to express his displeasure with the President and honour his late friend? Will any other Republican senators use this hearing to send an indirect message to Trump? The chairman of the committee, Senator Charles Grassley, has signalled that he'd be open to the President replacing his attorney-general, for instance.
Sen. Lindsey Graham on whether he thinks Supreme Court nominee Brett Kavanaugh will overturn Roe v. Wade: “The bottom line here is that there is a process to overturn a precedent and I think he understands that process” #CNNSOTUpic.twitter.com/GaA5kiJVN7
There are very few undecided votes on the Kavanaugh nomination.
But if Democratic leaders on this committee, like Senate Democrats' No. 2, Richard Durbin, think there is an opening to pick off a couple of Republican votes, expect them to hit hard on how Kavanaugh feels about abortion, Chafetz predicted. Senators Susan Collins, (R), and Lisa Murkowski, (R), have said they want a justice who will respect that abortion is legal.
That might be a lost cause, though. Collins and Murkowski have both given indications they'll support Kavanaugh.
... or plan B: Set the stage for good Midterm elections
Senate Democratic leaders could ditch any real effort to keep Kavanaugh off the court and instead focus on rallying their base by talking about future nomination battles.
Kavanaugh will maintain the court's current 5-to-4 conservative lean, but another Supreme Court opening during Trump's presidency could cement a strong conservative majority on the court for a generation.
If you hear Democrats talk about future Supreme Court vacancies during the Kavanaugh hearings, what you're really hearing is: Help Senate Democrats get the majority in 2018 to avoid this doomsday scenario, liberal voters!
Republicans want Kavanaugh on the court as soon as possible - like within the next month. That would allow them to campaign for November's elections on the fact that they put not one but two conservative Supreme Court justices on the bench, which would be a useful palate-cleanser after their failure to repeal Obamacare.
Democrats don't mind if the Kavanaugh confirmation process takes a while. They've already accused Republicans of moving too quickly.
These hearings are starting despite the fact that the federal agency in charge of preserving and gathering Kavanaugh's documents said it won't be able to give all of the requested ones to the Senate until the end of October.
Former President George W. Bush's legal team is helping compile the documents they have to speed up the process, and given that Kavanaugh worked for Bush, Democrats have cried foul. "What are they hiding?" asked Senate Democratic leader Charles Schumer of the Kavanaugh document battle.
The longer this process takes, the less time Democrats' most vulnerable senators have to be in the spotlight over how they'll vote on Kavanaugh.
That's good news for senators Joe Manchin, Heidi Heitkamp and Joe Donnelly who are all undecided and are all running for re-election in states that Trump won by a lot in 2016.
