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Stare decisis? Roe? A Supreme Court confirmation glossary
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Stare decisis? Roe? A Supreme Court confirmation glossary

  • By MARK SHERMAN, Associated Press
  • Sep 4, 2018
  • Sep 4, 2018 Updated Feb 26, 2021
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America is about to get its first extended look at Supreme Court nominee Brett Kavanaugh in his confirmation hearing before the Senate Judiciary Committee.

Viewers just tuning into the battle over the 53-year-old appellate judge's nomination should expect to see Kavanaugh portrayed by fellow Republicans as a principled jurist who has no preconceived ideas about the law. Democrats will try to paint President Donald Trump's nominee as a results-oriented conservative who wants to undo abortion rights and generally push the Supreme Court to the right.

Lawmakers know the public is watching, but as the nomination hearing gets going and lawmakers seek to probe the nominee's views, they often slip into using legal jargon and refer to past Supreme Court cases in shorthand. It can sound as though they're talking in code.

Expect senators to use these terms at Kavanaugh's hearing, starting Tuesday:

ROE V. WADE, PLANNED PARENTHOOD V. CASEY

These cases from 1973 and 1992, respectively, are the two main decisions on abortion rights. Kavanaugh has not said whether he believes they were decided correctly, and he's not likely to do so during the hearings. But he is certain to be asked repeatedly about abortion, Roe and Casey. He has provided two recent clues to his views, in the form of a speech that praised the late Chief Justice William Rehnquist's dissent in Roe and Kavanaugh's own dissenting opinion that would have denied immediate access to an abortion for an immigrant teen in federal custody.

Roe V Wade

Pat Thompson displayed a sign supporting Roe v. Wade at a rally, held by Planned Parenthood, commemorating the 45th anniversary of the landmark Supreme Court decision at the Capitol Monday, Jan. 22, 2018, in Sacramento, Calif. The 1973 landmark decision by the United States Supreme Court affirmed a woman's right to have an abortion. (AP Photo/Rich Pedroncelli)

Rich Pedroncelli

STARE DECISIS

Latin for to stand by things decided. It's the legal principle that judges use to base decisions on earlier ones. When it comes up at confirmation hearings, it's often in reference to abortion rights and it's usually a way of asking if a nominee will overturn certain decisions — like Roe v. Wade. Nominees invariably invoke stare decisis, or refer to something as settled law, to try to reassure senators that they have great respect for Supreme Court precedents, without committing to preserve any specific one. Respect for precedent, however, has its limits. Last term, the court squarely overturned three precedents.

APTOPIX Senate Supreme Court

President Donald Trump's Supreme Court nominee, Brett Kavanaugh, a federal appeals court judge, appears before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Sept. 4, 2018, to begin his confirmation to replace retired Justice Anthony Kennedy. (AP Photo/Andrew Harnik)

Andrew Harnik

CHEVRON DEFERENCE

A 1984 Supreme Court ruling, in a case involving the Chevron oil company, says that when laws aren't crystal clear, federal agencies should be allowed to fill in the details. That's what agencies do — on environmental regulations, workplace standards, consumer protections and even immigration law. But a growing conservative legal movement has questioned the Chevron decision.

Kavanaugh has expressed some support for limiting agencies' discretion, as have several conservative justices. If a future Supreme Court were to limit the Chevron ruling, it would mark a big change in the law that would potentially make it harder to sustain governmental regulations.

Senate Supreme Court

Supreme Court nominee Brett Kavanaugh, waits at his seat while the Senate Judiciary Committee is off to a chaotic start, during his confirmation hearing on Capitol Hill in Washington, Tuesday, Sept. 4, 2018. (AP Photo/J. Scott Applewhite)

J. Scott Applewhite

RECUSAL

A judge's decision to not take part in a case, usually because he participated in it at an earlier stage, or has a financial or personal conflict. Democrats are going to press Kavanaugh to pledge to recuse himself if a case comes to the court involving Trump and special counsel Robert Mueller's Russia investigation. He is not likely to commit to do so.

Mueller

In a photo taken Wednesday, June 21, 2017, Special Counsel Robert Mueller departs after a closed-door meeting with members of the Senate Judiciary Committee about Russian meddling in the election and possible connection to the Trump campaign, at the Capitol in Washington. (AP Photo/J. Scott Applewhite)

J. Scott Applewhite

UNITARY EXECUTIVE

Kavanaugh will be asked to explain his view of just how much power a president has under the unitary executive theory of constitutional law. Kavanaugh has written judicial opinions and law review articles that suggest he supports the idea that a president may decline to enforce a law he believes is unconstitutional.

Questioners also may focus on Kavanaugh's service in the White House under George W. Bush, who used signing statements to legislation that his administration saw as unreasonable or unconstitutional limits on executive power.

Supreme Court Kavanaugh Profile

FILE - In this June 1, 2006 file photo, from left to right, President Bush, watches the swearing-in of Brett Kavanaugh as Judge for the U.S. Court of Appeals for the District of Columbia by U.S. Supreme Court Associate Justice Anthony M. Kennedy, far right, during a ceremony in the Rose Garden of the White House, in Washington. Holding the Bible is Kavanaugh's wife Ashley Kavanaugh. (AP Photo/Pablo Martinez Monsivais, File)

Pablo martinez Monsivais

SUBPOENA

A legal order requiring a person to testify as a witness, it sometime also requires a person to turn over documents or other records under their control. Kavanaugh should expect to be asked whether the president can be subpoenaed, an open legal question that could reach the Supreme Court if Mueller tries to force the president to testify as part of the Russia investigation. Also an open question: Whether the president can be indicted, meaning charged with a crime.

Trump Russia Probe News Guide

FILE - In this Dec. 15, 2017, file photo, President Donald Trump sits with Attorney General Jeff Sessions during the FBI National Academy graduation ceremony in Quantico, Va. Late last year, lawyers for Trump expressed optimism that special counsel Robert Mueller was nearing the end of his probe of Russia’s interference in the 2016 election. (AP Photo/Evan Vucci, File)

Evan Vucci

AFFIRMATIVE ACTION

The term for efforts to improve opportunities for minorities, generally in employment and college admissions. It's a standard topic for Supreme Court confirmation hearings, particularly after a 2003 Supreme Court decision that predicted affirmative action wouldn't be necessary in 25 years. Senators may bring up a comment Kavanaugh made in 1999 about a different Supreme Court case, saying he believed it was "one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of government."

PROTESTERS

Hundreds participate in a rally outside the Supreme Court in Washingtoin, Tuesday, April 1, 2003. Hundreds of people gathered outside the courthouse Tuesday morning, hours ahead of oral arguments in the University of Michigan affirmative action case. Many people bore signs and chanted slogans supporting affirmative action. (AP Photo/Rick Bowmer)

RICK BOWMER

BALLS AND STRIKES

OK, that's not a legal term, but it will come up anyway. Chief Justice John Roberts famously compared judges to umpires during his 2005 confirmation hearing, saying neither makes the rules, but rather both just apply them. He said he'd remember if confirmed that his job is "to call balls and strikes." Lawmakers love to ask nominees about this analogy.

ROBERTS

Chief Justice nominee John Roberts testifies on Capitol Hill Wednesday, Sept. 14, 2005 at his confirmation hearing before the Senate Judiciary Committee. (AP Photo/Pablo Martinez Monsivais)

PABLO MARTINEZ MONSIVAIS

"LET HIM ANSWER THE QUESTION"

Again, not a legal term. Expect Senate Judiciary Chairman Chuck Grassley, or the Republican sitting in his place, to interject when Democrats' questioning of Kavanaugh gets especially heated, or they try to cut in if they feel Kavanaugh is trying to filibuster. Question time is limited and senators often feel free to jump in to move the questioning along.

Senate Supreme Court

Senate Judiciary Chairman Chuck Grassley, R-Iowa, speaks as President Donald Trump's Supreme Court nominee, Brett Kavanaugh, a federal appeals court judge, appears before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Sept. 4, 2018, to begin his confirmation to replace retired Justice Anthony Kennedy. (AP Photo/Andrew Harnik)

Andrew Harnik

___

Associated Press writer Jessica Gresko contributed to this report.

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