Brett Kavanaugh Has His Most Important Meeting Yet For The Supreme Court

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Kevin Daley Supreme Court correspondent
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Judge Brett Kavanaugh met with Democratic Sen. Joe Manchin of West Virginia for 90 minutes Monday, his first private interview with a Democratic lawmaker since his nomination to the U.S. Supreme Court.

Manchin, who is standing for re-election this November in a state President Donald Trump won by 40 percentage points, pressed the judge on health care, as another challenge to the Affordable Care Act (ACA) advances through federal courts.

“Judge Kavanaugh and I had a productive meeting and talked about his experience, record and a variety of issues that will impact West Virginians, including his views on healthcare,” Manchin said after the interview. He noted another challenge to the ACA is currently advancing through the federal courts, which could imperil insurance coverage for some 800,000 of his constituents with pre-existing conditions.

Kavanaugh’s record with the ACA is somewhat complex. He was openly hostile to the law’s contraception mandate in a 2015 decision, arguing it placed a substantial burden on the rights of religious dissenters. However, in a 2011 opinion he declined to strike the ACA down, instead finding that the case before him should be dismissed for technical reasons.

In arguing for dismissal, Kavanaugh maintained that the ACA’s individual mandate — which requires people to obtain health insurance or pay a penalty — qualified as a tax for purposes of a federal law called the Anti-Injunction Act. One year later, a five-justice majority on the Supreme Court also concluded the mandate was a tax, but on different grounds than Kavanaugh.

In the 2011 decision, Kavanaugh also discussed the possibility that the individual mandate exceeds Congress’ authority under the Constitution. (RELATED: Mitch McConnell Is Ready To Play Hardball To Get Kavanaugh Confirmed)

All told, the judge’s nuanced views toward the ACA may make supporting him more palatable to red state Democrats like Manchin.

Monday’s meeting, originally scheduled to run 30 minutes, lasted an hour and a half.

Though Supreme Court nominees generally meet with most senators in advance of their confirmation hearings, Democratic lawmakers haven’t made themselves available for Kavanaugh, in connection with their efforts to slow progress on his nomination.

Senate Minority Leader Chuck Schumer bucked longstanding tradition and declined to receive the judge during his first day of his visits on Capitol Hill. By tradition, Supreme Court nominees meet with the leadership of both parties before meeting with rank-and-file lawmakers.

Since Supreme Court nominations are no longer subject to the filibuster, the Senate’s minority party has little leverage to stop judicial confirmations. Democrats see an extended vetting process as the only weapon at their disposal, in hopes a grueling force will put Kavanaugh into a self-made blunder, or identify some unnoticed impropriety in his past.

Schumer has asked Manchin and other red state Democrats to keep their plans respecting the confirmation private for as long as possible.

Recent public opinion polling from West Virginia commissioned by the Judicial Crisis Network shows Manchin’s constituents favor Kavanaugh’s confirmation by a wide margin — 55 percent of voters surveyed said the judge should be confirmed to the high court, compared to just 30 percent who oppose him. The same survey showed West Virginia independents support the judge 59 percent to 23 percent.

West Virginia’s other senator, GOP Sen. Shelley Moore Capito, will vote in favor of Kavanaugh’s confirmation.

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