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Tuesday 4 sepTember 2018

Stare decisis? Roe? A Supreme Court confirmation glossary

By MARK SHERMAN and law review articles that
Associated Press suggest he supports the
WASHINGTON (AP) — idea that a president may
America is about to get its decline to enforce a law he
first extended look at Su- believes is unconstitutional.
preme Court nominee Brett Questioners also may focus
Kavanaugh in his confir- on Kavanaugh's service
mation hearing before the in the White House under
Senate Judiciary Commit- George W. Bush, who used
tee. Viewers just tuning into signing statements to leg-
the battle over the 53-year- islation that his administra-
old appellate judge's nomi- tion saw as unreasonable
nation should expect to or unconstitutional limits on
see Kavanaugh portrayed executive power.
by fellow Republicans as a Subpoena — a legal order
principled jurist who has no requiring a person to tes-
preconceived ideas about tify as a witness, it some-
the law. Democrats will try time also requires a person
to paint President Donald to turn over documents
Trump's nominee as a re- or other records under
sults-oriented conservative their control. Kavanaugh
who wants to undo abor- should expect to be asked
tion rights and generally In this June 1, 2006 file photo, from left to right, President Bush, watches the swearing-in of Brett whether the president can
push the Supreme Court to Kavanaugh as Judge for the U.S. Court of Appeals for the District of Columbia by U.S. Supreme be subpoenaed, an open
Court Associate Justice Anthony M. Kennedy, far right, during a ceremony in the Rose Garden of
the right. the White House, in Washington. legal question that could
Lawmakers know the pub- Associated Press reach the Supreme Court
lic is watching, but as the if Mueller tries to force the
nomination hearing gets Kavanaugh's hearing, start- rectly, and he's not likely to tal clear, federal agencies president to testify as part
going and lawmakers seek ing Tuesday: do so during the hearings. should be allowed to fill of the Russia investiga-
to probe the nominee's Roe v. Wade, Planned Par- But he is certain to be asked in the details. That's what tion. Also an open ques-
views, they often slip into enthood v. Casey — These repeatedly about abortion, agencies do — on environ- tion: Whether the president
using legal jargon and re- cases from 1973 and 1992, Roe and Casey. He has mental regulations, work- can be indicted, meaning
fer to past Supreme Court respectively, are the two provided two recent clues place standards, consumer charged with a crime.
cases in shorthand. It can main decisions on abortion to his views, in the form of protections and even im- Affirmative action — The
sound as though they're rights. Kavanaugh has not a speech that praised the migration law. But a grow- term for efforts to improve
talking in code. Expect sen- said whether he believes late Chief Justice William ing conservative legal opportunities for minorities,
ators to use these terms at they were decided cor- Rehnquist's dissent in Roe movement has questioned generally in employment
and Kavanaugh's own dis- the Chevron decision. Ka- and college admissions.
senting opinion that would vanaugh has expressed It's a standard topic for Su-
have denied immediate some support for limiting preme Court confirmation
access to an abortion for agencies' discretion, as hearings, particularly after
an immigrant teen in fed- have several conserva- a 2003 Supreme Court de-
eral custody. tive justices. If a future Su- cision that predicted affir-
Stare decisis — Latin for to preme Court were to limit mative action wouldn't be
stand by things decided. the Chevron ruling, it would necessary in 25 years. Sen-
It's the legal principle that mark a big change in the ators may bring up a com-
judges use to base deci- law that would potentially ment Kavanaugh made
sions on earlier ones. When make it harder to sustain in 1999 about a different
it comes up at confirmation governmental regulations. Supreme Court case, say-
hearings, it's often in refer- Recusal — A judge's de- ing he believed it was "one
ence to abortion rights and cision to not take part in more step along the way in
it's usually a way of asking a case, usually because what I see as an inevitable
if a nominee will overturn he participated in it at an conclusion within the next
certain decisions — like Roe earlier stage, or has a fi- 10 to 20 years when the
v. Wade. Nominees invari- nancial or personal con- court says we are all one
ably invoke stare decisis, or flict. Democrats are go- race in the eyes of govern-
refer to something as set- ing to press Kavanaugh to ment."
tled law, to try to reassure pledge to recuse himself if Balls and strikes — OK, that's
senators that they have a case comes to the court not a legal term, but it will
great respect for Supreme involving Trump and spe- come up anyway. Chief
Court precedents, without cial counsel Robert Muel- Justice John Roberts fa-
committing to preserve any ler's Russia investigation. He mously compared judges
specific one. Respect for is not likely to commit to do to umpires during his 2005
precedent, however, has so. confirmation hearing, say-
its limits. Last term, the court Unitary executive — Ka- ing neither makes the rules,
squarely overturned three vanaugh will be asked to but rather both just ap-
precedents. explain his view of just how ply them. He said he'd re-
Chevron deference — A much power a president member if confirmed that
1984 Supreme Court rul- has under the unitary ex- his job is "to call balls and
ing, in a case involving the ecutive theory of consti- strikes." Lawmakers love to
Chevron oil company, says tutional law. Kavanaugh ask nominees about this
that when laws aren't crys- has written judicial opinions analogy.q