Kavanaugh Hearings: Day Two

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, day two of Judge Kavanaugh’s confirmation hearings weren’t disappointing.

But if you were interested in knowing Judge Kavanaugh’s views on issues of importance to state and local governments you may 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 exceptions of the expected questions on abortion and gun rights.

Another notable exception is Judge Kavanaugh was asked about his thoughts on the precedential value of Kelo v. City of New London, a controversial 5-4 takings case. He responded, as paraphrased by SCOTUSblog, “states in the wake of the decisions have addressed their own constitutions to prevent the taking of private property for non-governmental use.”

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 the chance to vote to overrule Roe. Judge Kavanaugh seemed to have difficulty understanding Feinstein’s gun questions. Their conversation devolved into a disagreement about 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 the Federal Communications Commission lacked the authority to issue the net neutrality rules. Judge Kavanaugh responded 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 SCOTUSblog:  “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. But it doesn’t tell us much about his views on issues like qualified immunity, public employment, land use, free speech, and preemption. But there will be other hearing days for Senators to ask questions in other ways.