Brett Kavanaugh, a lawyer for the George W. Bush White House, offered some advice 20 years ago to a judicial aspirant seeking Senate confirmation: Don’t talk about your policy positions, show respect for Supreme Court precedent and reveal no ideological agenda.
It’s a recipe that well served Kavanaugh, now President Trump’s nominee to the Supreme Court, as he wrapped up his Senate confirmation appearance Thursday.
After two days of often confrontational questioning, Kavanaugh remained calm and revealed very little new information about his views on abortion or presidential power. He made no major flubs and steered clear of the contentious political atmosphere around Trump — all while trying to project a friendly, basketball-dad persona.
With Republicans in control of the Senate, Kavanaugh now appears on track to be confirmed by the end of the month. “You’re gonna get confirmed,” Sen. Lindsey Graham (R-S.C.) told him. “You’re gonna make it.”
Democrats landed a few blows in their bid to block or slow the appointment of Kavanaugh, who many expect to provide the fifth solid conservative vote on the Supreme Court to restrict abortion rights, environmental regulations and affirmative action.
On Thursday, Democrats on the Senate Judiciary Committee succeeded in forcing Republicans to release nearly 100 additional pages of documents about Kavanaugh’s work in the Bush White House. In one, he questioned whether Roe vs. Wade, the 1973 ruling that legalized abortion nationwide, was “settled law.” In another he criticized a minority-contracting program as a “naked racial set-aside.”
Among the newly released documents was his 2002 game plan for surviving confirmation battles.
But none of the disclosures seemed to raise significant concerns among the remaining undeclared senators whose votes he’ll need for confirmation.
As is common for modern-day Supreme Court nominees, Kavanaugh — a longtime GOP lawyer who was on the D.C. Circuit Court of Appeals for the last 12 years — spent most of his time avoiding direct questions about what he would do on the court.
Democrats repeatedly tried and failed to get Kavanaugh to discuss his views on several issues, notably presidential power — or more specifically, Trump.
They are concerned whether a Justice Kavanaugh would rule for Trump if the president were to fire special counsel Robert S. Mueller III or take other action to impede the investigation of Russian interference in the 2016 election and Trump’s own possible misconduct.
In the past, Kavanaugh often lauded Justice Antonin Scalia’s lone dissent in a 1988 case in which he argued that the independent counsel investigations of Reagan administration officials were unconstitutional because they infringed on the president’s power to control all officials who exercise executive power. In Morrison vs. Olson, Scalia said the Constitution gives that power exclusively to the president.
Just last year, Kavanaugh cited Scalia’s dissent as the basis for an opinion for the D.C. Circuit Court that declared unconstitutional the structure of the Consumer Finance Protection Bureau because the presidentially appointed director was protected from being fired by the president, except for good cause.
Democrats wanted to know whether Kavanaugh would view Mueller’s appointment as unconstitutional because he cannot be fired except for good cause.
Faced with those questions, Kavanaugh discounted the Morrison decision as old and outdated. “It was a one-off case about a one-off statute that no longer exists,” he said. The Independent Counsel Act was not renewed by Congress in 1999, and Mueller was appointed under regulations adopted by the Justice Department.
But Democratic senators said the same principles of executive power still apply. “Would it violate the Constitution or the law,” asked Sen. Chris Coons (D-Del.), for the president to fire the special counsel?
Kavanaugh avoided the question. “You’re talking about a statute not in effect since 1999,” he said.
Sen. Sheldon Whitehouse (D-R.I.) quoted a 1998 memo in which Kavanaugh, then a young lawyer working for independent counsel Kenneth W. Starr, slammed the “smear campaign” approved by President Clinton to undercut that investigation.
“Have your views of presidential smearing changed?” Whitehouse asked, noting that Trump has repeatedly slammed Mueller and his “rigged witch hunt.” Kavanaugh refused to comment. “I don’t think I should talk about current events,” he said.
What about Trump’s campaign comment that Justice Ruth Bader Ginsburg’s mind was “shot” and she should retire, asked Sen. Richard Blumenthal (D-Conn.). “I’m not going to get within three ZIP Codes of a political controversy,” Kavanaugh said. As judges, he added, “we stay out of politics. We don’t comment about comments by politicians.”
Sen. Kamala Harris (D-Calif.) pressed Kavanaugh — as she had on Wednesday — about on whether he’d had any conversations about the Mueller investigation with anyone at a law firm founded by one of the president’s lawyers. Kavanaugh avoided answering the question several times on Wednesday, but offered a more definitive “no” on Thursday. Harris said she had “reliable information” that such a discussion took place, but offered no evidence.
The day began with a bitter clash among senators over whether emails and documents related to the candidate’s views on race, affirmative action and abortion were improperly withheld from public view.
Sen. Cory Booker of New Jersey and other Democrats said the emails in question should never have been restricted since they had nothing to do with personal information or national security. Booker’s office released several of the documents, which had been marked “committee confidential,” meaning they were not to be shared publicly.
Republicans immediately accused Booker of violating Senate rules. Sen. John Cornyn of Texas called Booker’s conduct “unbecoming,” and said the violation could result in punishment or even removal from the Senate.
“Bring it,” Booker responded, knowing Cornyn’s threat was an empty one. Expelling a senator requires a two-thirds vote, which Republicans can’t achieve without considerable Democratic support.
The theatrics in the normally staid Senate ended up being moot. Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) had approved the public release of the 98 pages of emails earlier Thursday, a point that he didn’t reveal publicly until hours later.
Even so, the documents may not have come to light without Democrats pressuring GOP lawmakers to release them. Thousands of pages of emails from Kavanaugh’s time in the White House have been limited from public view by claims of confidentiality.
In one 2001 email, Kavanaugh, then working in the Bush administration, referred to some Transportation Department regulations to assist minorities as a “naked racial set-aside.”
In another email, from 2003, Kavanaugh questioned whether legal scholars would agree the landmark abortion ruling in Roe vs. Wade was considered “settled law.” He noted that several conservative justices were prepared to overturn it if they had a majority.
Altogether, Republicans say they have released more than 295,000 pages of executive branch documents about Kavanaugh. But many of the emails released Thursday were mundane, including out-of-office replies, scheduling notes and duplicate messages sent to dozens of people.
Though it did not appear that the controversy over the documents would be enough to prevent Kavanaugh’s confirmation in the GOP-controlled Senate, the Democrats’ attacks on the process may chip away at a Supreme Court appointment that Republicans were hoping would provide tailwinds heading into the midterm election.
The fight over documents related to Kavanaugh’s record has been raging for weeks. Democrats say that they need more time to review the documents and that the public has the right to review the nominee’s full record.
Sen. Dianne Feinstein (D-Calif.) complained that Trump was still withholding 102,000 pages of Kavanaugh’s White House counsel office records. She called Republicans’ frequent designation of documents as “committee confidential” a “crock.”
Republicans say they have released more documents about Kavanaugh than have been released for any previous Supreme Court nominee. Democrats are using the issue to delay his confirmation or score political points, they say.
Further underscoring the politics of the documents debate Thursday, Grassley’s office said Democratic staff members were notified early that morning that the documents were going to be made public. “Apparently, some just wanted to break the rules and make a scene, but didn’t check their email,” his spokesman said. “Sen. Grassley had already answered their last-minute requests.”
GOP attorney William Burck, who has been vetting Bush White House documents, said his office had already told Booker that the documents in question would be released.
“We cleared the documents last night shortly after Sen. Booker’s staff asked us to,” Burck said in a statement. “We were surprised to learn about Sen. Booker’s histrionics this morning because we had already told him he could use the documents publicly.”