WASHINGTON – U.S. Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, released his written questions for Supreme Court nominee Brett Kavanaugh following Kavanaugh’s Judiciary Committee hearings last week. Senator Coons’ questions are available here

Senator Coons submitted seventy-three questions for Judge Kavanaugh to answer in writing. Excerpts from Senator Coons’ questions are below:

“You have been highly critical of Morrison v. Olson, 487 U.S. 654 (1988), on both policy and constitutional grounds. Which provisions of the independent counsel statute at issue in that case caused you to call the law a ‘constitutional travesty,’ and why did you object to those provisions so strongly?” asks Senator Coons.  “Do you think the for-cause removal provision of the independent counsel statute was unconstitutional? Do you believe that the Constitution requires the President to be able to remove any Executive Branch official at will?” 

“During your hearing, Sen. Whitehouse asked you if the President must comply with a grand jury subpoena. Does the President have to comply with a grand jury subpoena?” asks Senator Coons.

Senator Coons writes: “During the hearing, I stated, ‘[At] Georgetown, [on] a panel in 1998 you wrote it makes no sense at all to have an independent counsel investigate the President, if the President were a sole subject of investigation, nobody should investigate that.  Is that your view, if there is evidence that what President committed crime no one should investigate it?’  You replied, ‘That’s not what I said, Senator.’  In a recording of that panel, at approximately the one-hour-and-20-minute mark, you state, ‘If the president were the sole subject of a criminal investigation.  I would say, no one should be investigating that.  That should be turned over immediately to the Congress.  Most criminal investigations involve multiple subjects however, so the criminal investigation goes forward.  But if it ever gets to a point where the president is the sole subject, the Congress needs to take the lead.’  Independent Counsel Structure & Function, February 19, 1998, available at https://www.c-span.org/video/?101055-1/independent-counsel-structure-function.”  Senator Coons asks, “Please explain your testimony during the hearing and why you denied stating this.”

“Please respond to Judge Millett’s concern that the interpretation of the law in your dissent in Garza v. Hargan 874 F. 3d 735 (D.C. Cir. 2017), ‘would require a troubling and dramatic rewriting of Supreme Court precedent to make the sufficiency of someone’s ‘network’ and added factor in delaying the exercise of reproductive choice even after compliance with all state-mandated procedures,’” asks Senator Coons.

“Does the Fourteenth Amendment’s promise of ‘equal protection’ guarantee equality across race and gender, or does it only require racial equality?” asks Senator Coons. 

Senator Coons writes: “During my last round of questions with you, I asked you about Chief Judge Rehnquist’s approach to identifying liberty interests protected by the Fourteenth Amendment’s Due Process clause in Washington v. Glucksberg, 521 U.S. 702 (1997), the so-called Glucksberg test.  During that round of questioning, and in response to the questions of other Senators, you seemed to suggest that this test is the exclusive governing test according to Supreme Court precedent.  You further seemed to suggest that this approach had been endorsed by Justice Kagan during her confirmation hearing and by Justice Kennedy, given that he joined the majority in Glucksberg.  However, Justice Kennedy wrote in the majority opinion in Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015), which Justice Kagan joined:  ‘If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.  This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.  See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566-567.’”  Senator Coons asks, “Do you agree that the Supreme Court declined to apply the Glucksberg test in critical substantive due process decisions subsequent to Glucksbergthat were written by Justice Kennedy, including Lawrence v. Texas, 539 U.S. 558 (2003), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015)?”

Senator Coons’ questions are available here