Brett Kavanaugh’s Expert Evasions, Learned From Past Masters

Judge Kavanaugh must have studied earlier confirmation hearings carefully, as he had absorbed all of their key lessons: Say nothing, say it at great length, and then say it again.

.. His confirmation would represent the culmination of a decades-long project of the conservative legal movement

.. Democratic senators sought assurances, for instance, that Judge Kavanaugh was not “a human torpedo being launched at the Mueller investigation,” as Sheldon Whitehouse, Democrat of Rhode Island, put it.

They wanted a promise that Judge Kavanaugh would be independent of Mr. Trump, asking him, for instance, to promise to recuse himself from cases arising from Robert S. Mueller III’s investigation of the president.

Judge Kavanaugh refused. Making such a commitment, he said, would jeopardize his judicial independence.

.. Judge Kavanaugh’s general strategy was summarized in a 1981 memorandum prepared by a young White House lawyer who had been assigned the job of preparing Justice Sandra Day O’Connor for her confirmation hearings.

.. The memo’s author was John Roberts, and he took his own advice at his 2005 confirmation hearings to become chief justice of the United States.
.. he demonstrated a seemingly complete command of Supreme Court precedent.

He was knowledgeable but not glib, effortlessly summoning the names and summarizing the details of old decisions without indicating how they would apply to new controversies.

.. Judge Kavanaugh was less sure-footed when the questions turned from the law to his own actions.

.. “The point of having public hearings is so relevant issues can be vetted, not just for the senators but for all of us. I fear that this hearing may represent a move away from that, and back to the days of confirmations as back room deals.”

.. He used a rare colorful phrase in refusing to answer questions about Mr. Trump’s attacks on the judiciary. “I’m not going to get within three ZIP codes of a political controversy here,” he said.

The Democrats made a fairly strong case that Judge Kavanaugh is very partisan and loyal to the president,” he said. “The nominee’s refusal to criticize the president in his attacks against the judicial branch didn’t help his case.

.. “Justice Ginsburg’s favored technique took the form of a pincer movement,” Justice Kagan wrote.

  • If a question was too specific, she would decline to answer on the ground that she did not want to forecast a vote.
  • If it was too general, she would say a judge should not deal in abstractions or hypothetical questions.

Professor Kagan explained what had counted as too specific: “Roughly, anything that might have some bearing on a case that might someday come before the court.” She also described what had been too general: “Roughly, anything else worthy of mention.”

.. his calculated praise for United States v. Nixon, the 1974 decision in which the Supreme Court unanimously ordered President Richard M. Nixon to comply with a trial subpoena to turn over Oval Office recordings. The decision would, of course, be the leading precedent if a dispute arising from the Mueller investigation reached the Supreme Court.

.. But Judge Kavanaugh ranked it among the Supreme Court’s greatest hits.

Those included, he said, just three others:

  1.  Brown v. Board of Education, the 1954 decision that ruled segregated public schools unconstitutional;
  2. Youngstown Sheet and Tube Company v. Sawyer, the 1952 decision rejecting President Harry S. Truman’s attempt to seize the nation’s steel mills to aid the war effort in Korea; and
  3.  Marbury v. Madison, the 1803 decision that established the basis for the Supreme Court’s power of judicial review.

.. But where Judge Kavanaugh responded to questions about Roe with equivocation, he embraced the Nixon case.

“It was one of the greatest moments because of the political pressures of the time,” he said. “The courts stood up for judicial independence in a moment of national crisis.”

Still, he drew the line at saying whether, say, a grand jury subpoena calling for Mr. Trump’s testimony should be enforced. That would, he said, require him to answer a hypothetical question.

The Daily 202: Kavanaugh hearing offers an ‘unprecedented’ display of the Senate’s institutional decline

— Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”

Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.

.. — Judiciary Committee Chairman Chuck Grassley said what was truly “unprecedented” was when Democrats blocked Robert Bork’s confirmation back in 1987. “This is my 15th Supreme Court confirmation hearing since I joined the committee in 1981,” said the Iowa Republican. “Thirty-one-years ago, during my fourth Supreme Court confirmation hearing, liberal outside groups and their Senate allies engaged in an unprecedented smear campaign against Judge Robert Bork.”

Bork, as the solicitor general, conspired with Richard Nixon in 1973 to carry out the “Saturday Night Massacre” and fire Archibald Cox in a scheme to obstruct the special prosecutor’s investigation into the Watergate affair. He did so after then-attorney general Elliot Richardson and deputy attorney general William Ruckelshaus had resigned rather than do so. Bork’s nomination to the high court went down 42 to 58 on the Senate floor, with six Republicans joining every Democrat in opposition. Ronald Reagan subsequently nominated Anthony Kennedy as a more moderate replacement.

.. Kavanaugh is now up for this seat, which Grassley still resents did not go to Bork. The chairman read at length from an op-ed that ran over the weekend in the Wall Street Journal by conservative legal blogger Mark Pulliam. “By confirming Judge Kavanaugh,” Pulliam wrote, “the Senate can go some way toward atoning for its shameful treatment of Justice Robert Bork 31 years ago.”

.. Sen. Mike Lee (R-Utah), whose father was Reagan’s solicitor general, also complained about Bork being blocked during his opening statement. “It remains something of a rock-bottom moment for the Senate and for the Senate Judiciary Committee,” he said.

.. The chorus of reverent Republican paeans to Bork, whose legacy will always be tainted by his role as the hatchet man in the “Saturday Night Massacre,” were particularly striking against the backdrop of Democratic charges that Kavanaugh would give legal air cover to Trump in the plausible scenario that he moves against Bob Mueller, as well as the continuing unwillingness of congressional Republicans to pass legislation that would safeguard the special counsel.

.. In this vein, Sen. Richard Blumenthal (D-Conn.) argued that holding the hearing is “unprecedented … because [Trump] is an unindicted co-conspirator who has nominated a potential justice who will cast the swing vote on issues relating to his possible criminal culpability, including whether he is required to obey a subpoena or to appear before a grand jury, whether he is required to testify in a prosecution of his friends or associates or other officials in his administration and whether in fact he is required to stand trial if he is indicted while he is president.”

.. — Introducing himself to the committee as reasonable and collegial, Kavanaugh described Merrick Garland as a personal “friend” and a “superb” chief judge on the U.S. Court of Appeals for the D.C. Circuit, where they have served together for more than a decade. “I am proud of that body of work and I stand behind it,” Kavanaugh said.

Perhaps this was meant as an olive branch, but Democrats took it as trolling. Garland, after all, was Barack Obama’s nominee to replace Antonin Scalia in 2016, and Senate Republicans refused to give him a hearing or otherwise consider his nomination. As much as anything else, the GOP’s treatment of Garland two years ago destroyed the last vestiges of comity in the judicial nominations process. Three Democrats cited him during the hearing on Tuesday to call for a postponement.

Kavanaugh’s comment about Garland wasn’t the only thing that rubbed salt in open wounds. Tuesday’s hearing featured sometimes naked displays of brute political force by a party that has just a one-seat majority in the Senate.

.. “You had a chance, and you lost,” Sen. Lindsey Graham (R-S.C.) told the Democrats. “If you want to pick judges from your way of thinking, then you better win an election.”

Sen. Ted Cruz (R-Tex.) claimed that the GOP’s refusal to allow a hearing for Garland actually gives Gorsuch and Kavanaugh “super legitimacy” because voters in 2016 knew that the next president would get to pick at least one justice.By releasing a list of the judges he’d pick from, Cruz said, Trump provided “unprecedented transparency.”

“This is an attempt by the Democrats to relitigate the 2016 presidential election,” Cruz continued.

To be sure, when it looked like Hillary Clinton was probably going to win, Cruz argued that Republicans should consider keeping the seat vacant for her entire term.

.. these same GOP members have also been going to the White House complex for several weeks to participate in mock confirmation hearings with Kavanaugh.

They’ve pretended to be Democratic senators in these moot sessions and coached Kavanaugh on how to deflect expected inquiries from the other side.

.. “It’s mostly a sham,” said Whitehouse. “You know the game,” the senator told Kavanaugh, who looked back at him stone-faced. “In the Bush White House, you coached judicial nominees to just tell senators that they have a commitment to follow Supreme Court precedent, that they will adhere to statutory text and that they have no ideological agenda. Fairy tales!”

.. Last year, McConnell went “nuclear” — in the parlance of the Senate — by changing the rules of the body to allow Supreme Court nominees to be confirmed by a simple majority — instead of 60 votes. Harry Reid shortsightedly changed the rules four years earlier to allow lower-court nominees to be confirmed this way, but he said at the time that the Supreme Court process should stay sacrosanct.

.. Going nuclear means that presidents are more likely to pick ideological nominees when their party controls the Senate, whether from the right or the left, because they no longer need any members of the other party to cross over to secure 60 votes. Kavanaugh can be muscled onto the court with only GOP votes, which makes his confirmation a sort of fait accompli. He does not need to make concessions or agree to recuse himself from certain cases.

.. The result of the rule changes is a Senate that’s become more majoritarian. Members of the minority have fewer prerogatives. This is a recipe for institutional decay. No one who watched yesterday’s circus could credibly call the Senate the world’s greatest deliberative body. It certainly isn’t what James Madison had in mind when he designed the upper chamber as a cooling saucer on the passions of the people’s representatives in the House. Republicans will probably come to regret the rule changes when they again, inevitably, find themselves in the minority and Democrats treat them as they’re now being treated. That probably won’t happen next year, but perhaps in 2021 or 2023.

.. But there’s no going back now. Why would Democrats tie their hands and hold their nominees in the future to a higher standard than Republicans have held theirs? Neither party’s base would tolerate unilateral disarmament.

.. “It was a poisonous session, as acrimonious as I have witnessed since sitting in the committee’s hearing room for the grilling of Anita Hill during the second round of the Clarence Thomas hearings,” writes columnist Ruth Marcus.“And while no dispute over documents, however impassioned, can rival the Hill-Thomas encounter, the Republican majority’s handling of this issue will be even more dangerous for the future of the Senate’s ability to conduct its constitutional duty of advice and consent.
 “Kavanaugh may not become the most conservative member of the court, but his background suggests he would be the most partisan,” Dana Milbank explains in today’s paper. “Democrats say the committee received only 7 percent of Kavanaugh’s White House documents — and some of those have been altered, while half cannot be discussed publicly. Why? They would likely reinforce what is already known about Kavanaugh as a nakedly partisan appointment, solidifying the court’s transition from a deliberative body to what is effectively another political branch. …
..  ‘a cynical view of Kavanaugh’s actions would be that he bases his legal reasoning on his conservative views — that he supports broad powers for a Republican president and circumscribed powers for a Democratic president.’ What has emerged about Kavanaugh — particularly his vulgar plan to humiliate [Bill] Clinton — reinforces that cynical view. This is why Kavanaugh’s defenders don’t want the documents to come out.”

SCOTUS Hearing Revealed The Character Of Neil Gorsuch AND Senate Democrats

he was so consistent and respectful, that opinion pieces have taken to denying him support, but not blaming him for it. To do otherwise would seem monstrous in the face of the kind of character on display by the Colorado Judge who some say may have learned at the knee of Kennedy, but will likely rule in the vein of Scalia.

.. Gorsuch’s immediate, and obviously habitual, graciousness to someone who sneezed was a moment worth noting.

.. Opposition to Gorsuch is absurd given his bi-partisan support, his qualifications, and his qualities as a man, and yet come it will.

.. a kind man

Senate Confirmation Hearings to Begin Without All Background Checks

Mr. Sessions is certain to be asked whether he, as attorney general, would make good on Mr. Trump’s pledges to get a special counsel to “jail” Hillary Clinton over her email server.

General Kelly can expect questions about whether he favors Mr. Trump’s call to build a wall on the Mexican border and create a database on Muslims.

Mr. Pompeo is likely to be asked about his views on Mr. Trump’s support for waterboarding and his skepticism about the intelligence agencies’ findings on Russian election meddling.

Mr. Tillerson will probably face a grilling over Mr. Trump’s vow to “cancel” the Paris climate accord.

.. By posing tough questions, said Sarah A. Binder, a political scholar at George Washington University, Democrats will try to lure the nominees into inflicting political damage on themselves by adopting some of Mr. Trump’s more divisive language. She said the terrain was so risky that the nominees might be better served by adopting a stance usually seen only from judicial nominees: “Don’t take a position.”

.. Democrats intend to use all the procedural moves available to slow the process on the Senate floor, possibly spending up to 30 hours per nominee, denying Mr. Trump a full cabinet when he takes office.

Republicans are indignant. “Holding up confirmations just for delay’s sake is irresponsible and it is dangerous,”