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What to watch for as senators consider Kavanaugh nomination

WASHINGTON (AP) — Supreme Court nominee Brett Kavanaugh is set for a week of marathon hearings before the Judiciary Committee, where senators will drill down into the judge’s background, writings and legal philosophy.

Republicans who mostly back President Donald Trump’s pick are focusing on Kavanaugh’s 12-year career as an appellate court judge, which has produced more than 300 opinions. Democrats are expected to take a more pointed tack, grilling the 53-year-old conservative on hot-button issues that could swing the court’s majority rightward.

Four days of hearings begin Tuesday. Democratic leader Chuck Schumer fumed Monday night over the committee receiving more than 42,000 pages of documents about Kavanaugh’s years with the Bush administration the night before the hearings get underway. He called for a delay until Kavanaugh’s records could be reviewed.

“This underscores just how absurd this process is,” Schumer said in a tweet. “Not a single senator will be able to review these records before tomorrow.” Democrats have argued for weeks that Kavanaugh’s Bush administration records weren’t being provided for review to the fullest extent possible.

Issues to watch as the battle over Kavanaugh’s confirmation unfolds:

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ROE V. WADE

Among the most consequential questions of the hearings is whether Kavanaugh’s confirmation could alter the landmark 1973 case that solidified abortion rights.

Kavanaugh has said publicly, and in private talks with senators, that he believes the case is settled law. But he has not said if it was correctly decided. Democrats want to unpack his legal thinking for a fuller understanding of his views. Kavanaugh’s answers will be critical in winning the backing from two key swing votes, Susan Collins of Maine and Lisa Murkowski of Alaska, who are alone among Senate Republican in publicly supporting access to abortion.

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EXECUTIVE POWER

Despite working on Kenneth Starr’s team investigating President Bill Clinton, Kavanaugh has long held that sitting presidents should be shielded from intrusive probes. It’s an expansive view of executive power. And it’s particularly important now, amid special counsel Robert Mueller’s investigation of the 2016 election. Trump complains that the investigation is a “witch hunt” and he wants it to come to an end.

Kavanaugh is expected to be grilled over key legal questions like: Can the president be subpoenaed to appear before Mueller? Is the president immune from prosecution?

“It is an unavoidable question,” said Sen. Chris Coons, D-Del., previewing the kinds of questions he will be asking. “Did this president choose you because of your view of presidential power?”

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AFFORDABLE CARE ACT

While senators are quizzing Kavanaugh in Washington, a court case against the Affordable Care Act brought by 20 Republican state attorneys general is expected to be unfolding in Texas. The case centers on the “Obamacare” requirement that all Americans carry insurance and that insurers, in turn, not discriminate for pre-existing health conditions. Kavanaugh issued a 2011 opinion that some conservatives viewed as favorable to the mandate, but Democrats worry he will provide a key vote on the court against it.

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REGULATORY AUTHORITY

Conservatives are increasingly trying to limit the federal government’s ability, under a 1984 case involving the Chevron oil company, to regulate industry. Kavanaugh appears to have shared some of these views. Republicans largely welcome that approach, but Democrats will be listening to see if he would tip the majority away from the Chevron case and limit the government’s ability to fill in the details of law with administrative actions.

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TORTURE AND SURVEILLANCE

Testifying before the Senate 12 years ago, Kavanaugh said he wasn’t directly involved in drafting Bush-era policies for detaining and interrogating terror suspects. But a short time later, news accounts suggested he had discussed in the White House how the Supreme Court would view such policies.

Two Democrats, Sens. Dick Durbin of Illinois and Patrick Leahy of Vermont, questioned his honesty at the time. Those questions are likely to resurface this week. After meeting privately with Kavanaugh ahead of the confirmation hearing, Durbin said Kavanaugh confirmed his involvement in the Bush-era discussions of detention policy, making his earlier testimony “misleading at best.”

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CAMPAIGN FINANCE

The role of money in politics is increasingly being decided by the Supreme Court. Landmark cases opened the door to new political action committees with unlimited and undisclosed spending arrangements. Kavanaugh wrote a key 2009 opinion, Emily’s List v. Federal Election Commission, siding with the advocacy group that the First Amendment protects the rights of individuals to express their views. Senators will want to hear more.

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GUN CONTROL

Among those witnesses testifying on the final day of Kavanaugh’s hearing will be a survivor of the Parkland, Florida, high school shooting. California Sen. Dianne Feinstein, the top Democrat on the committee, has previously raised concerns about Kavanaugh’s legal approach to the Second Amendment. He dissented in a key District of Columbia case prohibiting assault weapons.

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— Supreme Court nominee Brett Kavanaugh touted the importance of an independent judiciary as his confirmation hearings began with strident Democratic criticism that he would be President Donald Trump’s man on the high court.

On Wednesday, Kavanaugh can expect to spend most of the day in the hot seat, sparring with Democratic senators over abortion, guns, executive power and other high-profile issues.

A long day of questioning awaits the 53-year-old appellate judge, whom Trump nominated in July to fill the seat of retired Justice Anthony Kennedy. The change could make the court more conservative on a range of issues.

Barring a surprise, Republicans appear on track to confirm Kavanaugh to the Supreme Court, perhaps in time for the first day of the new term, Oct. 1, little more than a month before congressional elections.

However, the first of at least four days of hearings by the Senate Judiciary Committee began with partisan quarreling over the nomination and persistent protests from members of the audience, followed by their arrests.

Strong Democratic opposition to Trump’s nominee reflects the political stakes for both parties in advance of the November elections, Robert Mueller’s investigation of Trump’s 2016 campaign and the potentially pivotal role Kavanaugh could play in moving the court to the right.

Democrats, including several senators poised for 2020 presidential bids, tried to block the proceedings in a dispute over Kavanaugh records withheld by the White House. Republicans in turn accused the Democrats of turning the hearing into a circus.

Trump jumped into the fray late in the day, saying on Twitter that Democrats were “looking to inflict pain and embarrassment” on Kavanaugh.

The president’s comment followed the statements of Democratic senators who warned that Trump was, in the words of Sen. Richard Blumenthal of Connecticut, “selecting a justice on the Supreme Court who potentially will cast a decisive vote in his own case.”

In Kavanaugh’s own statement at the end of more than seven hours of arguing, the federal appeals judge spoke repeatedly about the importance of an independent judiciary and the need to keep the court above partisan politics, common refrains among Supreme Court nominees that had added salience in the fraught political atmosphere of the moment.

With his wife, two children and parents sitting behind him, Kavanaugh called himself a judge with a straightforward judicial philosophy.

“A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent,” he said.

The most likely outcome of this week’s hearings is a vote along party lines to send Kavanaugh’s nomination to the full Senate.

Majority Republicans can confirm Kavanaugh without any Democratic votes, though they’ll have little margin for error.

“There are battles worth fighting, regardless of the outcome,” Sen. Mazie Hirono, D-Hawaii, said in an unsparing opening statement that criticized Kavanaugh’s judicial opinions and the Senate process that Democrats said had deprived them of access to records of important chunks of Kavanaugh’s time as an aide to President George W. Bush.

Democrats raised objections from the moment Chairman Chuck Grassley, R-Iowa, gaveled the committee to order. One by one, Democrats, including Kamala Harris of California, Cory Booker of New Jersey and Amy Klobuchar of Minnesota, all potential presidential contenders, demanded that Republicans delay the hearing. They railed against the unusual vetting process by Republicans that failed to include documents from three years Kavanaugh worked in the Bush administration, and 100,000 more pages withheld by the Trump White House. Some 42,000 pages were released to senators only, not the public, on the evening before the hearing.

As protesters repeatedly interrupted the session, Republican Sen. Ted Cruz, who is fighting for his own re-election in Texas, apologized to Kavanaugh for the spectacle he said had less to do about the judge’s legal record than Trump in the White House.

“It is about politics,” said Cruz. “It is about Democratic senators re-litigating the 2016 election.”

Republicans will hold a slim 51-49 majority in the Senate once Jon Kyl, the former Arizona senator, is sworn in to fill the seat held by the late Sen. John McCain.

Sens. Susan Collins of Maine and Lisa Murkowski of Alaska are the only two Republicans even remotely open to voting against Kavanaugh, though neither has said she would do so. Abortion rights supporters are trying to appeal to those senators, who both favor abortion access.

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Associated Press writers Jessica Gresko and Ken Thomas contributed.

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Read more on AP’s coverage of Kavanaugh at https://apnews.com/tag/Kavanaughnomination

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