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What do senators need to consider in Kavanaugh’s confirmation?

How would Judge Brett Kavanaugh change the Supreme Court if confirmed, and what does the Senate need to consider in their confirmation hearings? Judy Woodruff gets reaction from Travis Lenkner, an attorney who clerked for both Justice Kennedy and the new nominee, and Kristen Clarke, president of the National Lawyers' Committee for Civil Rights Under Law.

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  • Judy Woodruff:

    And for a closer look now at how a Justice Kavanaugh might change the court if he is confirmed, I'm joined by Travis Lenkner. He's an attorney who clerked for both Justice Kennedy and for the new nominee. And Kristen Clarke, she's president of the national Lawyers' Committee for Civil Rights Under Law.

    And we welcome both of you to the program.

    Travis Lenkner, you heard a little — I think you heard both Senator Hatch and Senator Harris. They both seem to have made up their minds about Judge Kavanaugh.

    You have worked with him. You have told us you have stayed in touch with him. What do they need to know about him that they may not know?

  • Travis Lenkner:

    It hasn't even been 24 hours, so I hope we take a little time to meet the judge, as well as the person who hopefully will occupy the seat on the Supreme Court.

    What I would say is that the judge has a long record that I know will be studied in the coming weeks, more than 300 judicial opinions that he's written in a dozen years on the D.C. Circuit.

    And what I saw as a law clerk and what I think all of as law clerks saw in his chambers was just what you mentioned in discussing with Senator Harris, his approach to each case as it comes to him and his real integrity in hearing the arguments of all litigants, being fair to them, considering the law as it comes, and ultimately really being meticulous in crafting decisions that well and thoroughly explain his rulings.

  • Judy Woodruff:

    Kristen Clarke, if that's the approach he's going to have — and we heard the judge himself talk about that last night — why is there opposition at this point?

  • Kristen Clarke:

    Well, I think that these hearings that are about to get under way are incredibly important, an incredibly important opportunity for the Senate and the public to fully understand the record that the judge brings to bear here.

    When we look at rulings that he's issued in a number of contexts, I think there's cause for concern. We talked about Roe v. Wade a moment ago. The judge issued a decision that blocked a 20-year-old immigrant woman from having an abortion.

    He has issued speeches where he's raised questions about restrictions on a woman's right to choose. I think that this is an important area of inquiry for the Senate as hearings now commence.

    We know that this president said that he wants judges on the court who will overturn Roe. So it's important now for the Senate to parse through the judge's true views and commitment to adhering to the Supreme Court's precedent here.

  • Judy Woodruff:

    Travis Lenkner, based on what you know, are those on the other side of this argument right to be concerned about what Judge Kavanaugh might do when it comes to Roe and other abortion questions?

  • Travis Lenkner:

    Well, I think the judge will have an opportunity in the hearing to explain his views of precedent, the principles of stare decisis generally.

    The judge literally wrote the book on precedent with his co-authors that included not only Justice Gorsuch, but also federal judges appointed by both Democrats and Republicans who really span the spectrum.

  • Judy Woodruff:

    Well, what does that tell you about Roe vs. Wade?

  • Travis Lenkner:

    Well, it tells me in general that the Supreme Court has a long set of decisions about how it treats precedent, older precedents vs. newer cases, and what can be a cause for revisiting those.

    I have certainly never heard him deviate from those principles. And we have seen him as a lower court judge faithfully apply precedent, even though he might have disagreed with it.

    And so I think we will have a chance to hear about his fidelity to those views during the hearing.

  • Judy Woodruff:

    We also — Kristen Clarke, we heard Senator Hatch say that he thinks Democrats and other opponents out there are overblown in their concern, for example, about what Judge Kavanaugh has written about the ability — or the immunity of a president when it comes to subpoenas, indictments.

    What's your view of that?

  • Kristen Clarke:

    Well, I think that the question of the appropriate use of the president's pardon powers, I think the impact of a president being the subject of an investigation, and now putting forth the nominee, these are important questions that loom over this nomination process.

    And I think it would be important to think about whether the judge would, if confirmed, need to recuse himself from those cases, if they come before the court. But I also know that equally important are the critical civil rights cases that will come before the court next term.

    We know on issues, for example, like gerrymandering that have been bounced back to lower courts, that these issues will appear before the court in the next and subsequent terms. So, understanding the judge's commitment to fairly and fully enforcing our nation's federal civil rights laws, I think, is another area of important inquiry.

  • Judy Woodruff:

    Travis Lenkner, based on what you know about what the judge has written, what his opinions have been in that arena, voting rights, civil rights, what do you see?

  • Travis Lenkner:

    Well, in the voting rights context, Judy, for example, Judge Kavanaugh wrote a majority opinion for a three-judge district court upholding a South Carolina voter I.D. law.

    That was a very narrow decision. And the three-judge unanimous decision included a Clinton appointee as one of the district judges. And the Obama Department of Justice chose not even to appeal that decision to the Supreme Court.

    So I think, even in that ruling, which is the principal ruling in the voting rights areas in particular from his record, you see a careful and nuanced approach to these issues that I know he will have an opportunity to further discuss in his hearings.

  • Judy Woodruff:

    Kristen Clarke, will the Lawyers Committee be open to what this judge has to say at the hearing?

  • Kristen Clarke:


    We don't want sham hearings. I'm very disturbed by Leader McConnell's suggestion that there will be a swift confirmation. I think that the Constitution imposes an obligation, duty, and responsibility on the Senate to parse through carefully and cautiously examine all of the hundreds of rulings that have been issued by the judge during his tenure.

    And he's also given a number of speeches to groups like the Heritage Foundation and the American Enterprise Institute that I think provide further opportunities to really understand who he is and how he will handle the incredibly important civil rights cases and constitutional questions that come before him.

  • Judy Woodruff:

    Well, it hasn't even been 24 hours yet. We are early, early in this process, and we will continue to look at it.

    Thank you both very much, Kristen Clarke, Travis Lenkner.

  • Travis Lenkner:

    Thank you.

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