Big Law is playing a major role behind the scenes in what’s expected to be a rough-and-tumble Senate confirmation process for Supreme Court nominee Brett Kavanaugh.
Like past practice, Kavanuagh’s guide, or Sherpa, is a former senator. John Kyl, who represented Arizona as a Republican lawmaker for nearly two decades and is now a partner at Covington & Burling, has been at Kavanaugh’s elbow during Capitol Hill courtesy calls. He’ll also prep him for the crucial Judiciary Committee hearings likely in early fall.
However effective his advocacy and effectiveness in corralling votes for confirmation to a seat viewed as crucial in cementing a lasting conservative Supreme Court legacy, Kyl will have a counterpart on the Democratic side.
Sen. Dianne Feinstein, the top Democrat on the Judiciary panel, has hired Marc Hearron, a Morrison & Foerster partner. His specialty is appellate and Supreme Court practice, and he has represented the National Abortion Federation as well as corporations in high court and other appeals.
While Kyl “handles” Kavanaugh as he woos senators and prepares for questions at his hearing, Hearron, a former federal appeals and district court clerk, will be digging deep into the nominee’s judicial record.
He will seek to glean his positions—and any discrepancies—on hot-button issues where he could provide a high-court swing vote.
Feinstein, in a statement, called Kavanaugh’s views “far outside the legal mainstream.”
If confirmed, she warned, “he would be among the most conservative justices in Supreme Court history.”
Handlers a Fixture
The big moment will likely occur when the Judiciary Committee holds hearings, and members will square off to interrogate—some gently and some not—the nominee to replace Justice Anthony Kennedy, who’s leaving the court July 31.
As the stakes have risen over high-powered jobs like Supreme Court justices, handlers have become a fixture.
Last year, Kelly Ayotte, a former Republican senator from New Hampshire and a lawyer, helped guide Neil M. Gorsuch through confirmation for the seat held by the late Justice Antonin Scalia.
Kyl has not commented publicly on his role, but he’s no stranger to tense confirmations.
He served on the Judiciary Committee for four Supreme Court nominees, and helped Jeff Sessions overcome concerns about his racial and legal views on his way to confirmation as attorney general last year.
Supreme Court Case Experience
Feinstein’s office did not respond for a request for comment on Hearron, who clerked on the U.S. Circuit Court of Appeals for the Fifth Circuit and the U.S. District Court for the Northern District of Texas.
He represented the National Abortion Federation, a group of abortion providers, to block an anti-abortion group’s secretly recorded tapes of the federation’s annual meetings from being publicized. The Ninth Circuit barred publication of the tapes, and the Supreme Court declined to step in, leaving an injunction in place.
Last year, he helped file Morrison & Foerster’s amicus brief for some groups who opposed the Trump administration’s travel ban, which was upheld by the Supreme Court. He also represented the Oracle Corp. in an appeal of a decision by the U.S. Patent and Appeals Board that invalidated patent claims.
Razor Thin Senate Margin
Democrats are fighting the odds in their push to derail Kavanaugh’s confirmation path although it’s narrower than even a year ago during Gorsuch’s turn because Senate Republicans have only a one-vote margin.
Two other Republican votes may require considerable courting.
Sens. Susan Collins of Maine and Lisa Murkowski of Alaska have indicated that they are concerned that a steadfastly conservative vote could overturn the landmark Roe v. Wade decision preserving the right to an abortion.
The votes of four Democratic senators also will be crucial in the confirmation fight because they are from states who voted for Donald Trump in 2016.
In addition to Doug Jones of Alabama, they are Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia. Donnelly, Heitkamp and Manchin are all up for re-election in November.