Supreme Court nominee Brett Kavanaugh tiptoes through legal minefields on way to confirmation
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Democrats are calling for a delay in the confirmation hearings of Brett Kavanaugh, objecting to the late release of documents the evening before. (Sept. 4)
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WASHINGTON – Brett Kavanaugh arrived at his Supreme Court confirmation hearing this week seemingly outflanked by his opponents.
In front of him, former prosecutors stared down from the Democrats’ side of the Senate Judiciary Committee dais. Behind him, scores of protesters loomed, ready to interrupt the proceedings at every turn.
For ammunition, both groups had a dispute over withheld documents and the travails of the man who nominated him, President Donald Trump.
After more than 24 hours of testimony, however, Kavanaugh emerged largely unbroken, waving not a white flag but his battered copy of the Constitution.
How the soft-spoken, 53-year-old federal appeals court judge did it is a lesson in tried and true tactics: Steer clear of politics. Hide behind precedent. Don’t answer hypothetical questions. Empathize with opponents. And have a faulty memory.
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From left, minority members of the Senate Judiciary Committee, Sen. Sheldon Whitehouse, D-R.I., Sen. Amy Klobuchar, D-Minn., Sen. Chris Coons, D-Del., and Sen. Richard Blumenthal, D-Conn., wait through procedural delays as Supreme Court nominee Brett Kavanaugh appears for the third day of his confirmation hearing, on Capitol Hill in Washington, Sept. 6, 2018.
Senate Judiciary Chairman Chuck Grassley, R-Iowa, center, accompanied by Sen. Orrin Hatch, R-Utah, left, and Sen. Dianne Feinstein, D-Calif., the ranking member on the Senate Judiciary Committee, right, speaks toward the committee Democrats.
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For two days that went well into the night, Kavanaugh offered a master class in answering the questions he wanted to hear, rather than the ones actually asked.
“You’re becoming really good,” Sen. Dianne Feinstein, D-California, said as the nominee expounded on a response longer than necessary. “You’re learning to filibuster.”
Here are five ‘gotcha’ moments from which Kavanaugh escaped:
Trump’s taunts
Like Associate Justice Neil Gorsuch, confirmed 54-45 last year, Kavanaugh was asked to answer for some of Trump’s most impolitic remarks. In Gorsuch’s case, it was the president’s 2017 attacks on federal judges. In carefully scripted remarks, the Coloradan called them “demoralizing” and disheartening.”
Perhaps aware of reports that Trump nearly pulled Gorsuch’s nomination out of personal pique, Kavanaugh was even more careful. Confronted several times by Trump’s recent attack on the Justice Department for indicting two Republican congressmen, he said he must stay “three Zip codes away from the line” of political commentary.Â
Asked later to comment on Trump’s attack during the 2016 presidential campaign on Associate Justice Ruth Bader Ginsburg – the president said “her mind is shot” after Ginsburg criticized him – Kavanaugh said, “I’m not going to get drawn into a political controversy.”
Trump’s travails
More dangerous were the moments – and there were many – when Democrats linked Kavanaugh’s strong support for a powerful presidency with the possibility that the Supreme Court will have to decide whether Trump can be subpoenaed, indicted or self-pardoned, or whether he can fire special counsel Robert Mueller.Â
“It’s in the context of the Trump presidency that we ask you these questions,” Sen. Dick Durbin, D-Illinois, said.Â
Kavanaugh refused to answer the questions on the grounds that they were hypothetical and could come to the justices in the future. But standing accused of becoming Trump’s hand-picked puppet on the court, he couldn’t leave it there.
“I am one not afraid at all, through my record of 12 years, to invalidate executive power,” he said.
Overturn Roe?
The issue on virtually all senators’ minds all week was abortion. Would Kavanaugh vote to overrule Roe v. Wade, the landmark 1973 decision that legalized abortion coast to coast? A simple yes-or-no answer would suffice. Of course, there would be no such answer.
What Kavanaugh cited over and over was the importance – but not the inviolability – of Supreme Court precedent. And in this case, not just precedent but “precedent on precedent” – the addition of the court’s 1992 ruling in Planned Parenthood v. Casey, which upheld the right but allowed for state restrictions, such as requiring parental consent for minors.
Parental consent is what led him to dissent last year when the U.S. Court of Appeals for the District of Columbia Circuit allowed an undocumented teenager in federal custody to get an abortion. Kavanaugh said more time should have been allowed to find a sponsor, so the government would not be involved.
“I made it clear it had to happen very quickly,” he said, so that the anonymous 17-year-old from Central America wouldn’t bump up against Texas’ 20-week limit. He noted he did not agree with a fellow judge who wrote that illegal immigrants lack abortion rights.
“I did the best I could,” he said.
Protesters’ pleas
On other issues that galvanized protesters – gun control, health care and voting rights among them – Kavanaugh pointed to the kinder, gentler rhetoric in his opinions that nevertheless went against liberals’ interests.
His dissent that would have struck down a District of Columbia ban on semi-automatic weapons? Required by precedent, Kavanaugh said, but “the violence in the schools is something we all detest.”
His dissent in a case upholding the Affordable Care Act? Just for procedural reasons, he said, and “I expressed my respect for the congressional goal in that legislation.â€
His opinion upholding a photo ID law in South Carolina? It allowed for exceptions and was delayed for a year so that those affected could prepare, he said, adding, “I was all over the real-world effects.”
Be careful, sir
The most unusual moment came late Wednesday night when Sen. Kamala Harris, D-California – one of five former prosecutors among the committee’s 10 Democrats – asked if he had discussed the Mueller investigation with any lawyers from a firm headed by Marc Kasowitz, one of Trump’s many former lawyers.Â
“Be careful with your answer, sir,” Harris intoned, perhaps causing Kavanaugh to do just that. He acknowledged talking about the case with fellow judges but said he didn’t know who the senator had in mind.
“I think you’re thinking of someone, and you don’t want to tell us,” she said. But the encounter ended in a stand-off, and by Thursday Kavanaugh had refreshed his memory enough to deny her charge – one apparently intended to force a Justice Kavanaugh to recuse himself from a potential future case.Â
“I’ve had no inappropriate discussions with anyone,” he told Sen. Richard Blumenthal, D-Connecticut. Later, he added, “I’ve had no discussions of the kind that I think you’re asking about.â€
And, ultimately to Harris, he said, “The answer’s no.”
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