Brett Kavanaugh cannot win the Supreme Court nomination; he already has it. He can only lose it now. That’s something we have to remember as we watch the proceedings. With John Kyl’s appointment to fill Arizona’s U.S. Senate vacancy, Republicans are back with a 51 vote majority. Kavanaugh’s job is to play defensive chess because if he doesn’t make a bad move, his nomination will pass.
Day two of the hearings was a relatively standard Supreme Court nomination hearing, save for the continual interruptions from protesters.Brett Kavanaugh
Typically Democrat Senators would ask Judge Kavanaugh about any number of contentious issues like gun control, abortion, and affirmative action. The witness would then invoke the “Ginsburg Rule.” This is the principle that judicial independence and fair dealing for future parties before the Supreme Court requires that potential justices do not answer direct questions about whether they think this or that law is constitutional. It’s about as interesting to hear about for hours and hours as you might expect.
Senate Republicans would then play defense for the Judge or, in the best moments, talk about the federalist papers and the founders’ vision for the Republic and the courts.
All in all, it was a fairly tepid examination. Democrats tried to tie Kavanaugh in with #metoo, alleging that he knew and did nothing about the sexual misconduct of another federal judge. That judge is Alex Kozinski, a well-known now-retired former Chief Judge of the United States Court of Appeals for the Ninth Circuit. Why did Kavanaugh do nothing about Judge Kozinski’s serial misconduct? Just asking the question is the win here.Judge Alex Kozinski
Kavanaugh says that he did not know about any misbehavior of the judge at the time, finds the behavior totally unacceptable, and would have reported it had he known. Forget the answer; the stink is in the air that Kavanaugh should have said something at least. The media can now put both names together and talk about harassment. Kavanaugh was a generation younger than Kozinski, and worked with him virtually, from D.C. while Kozinski was in California, all for less than a year, while he was just starting his career. Somehow it’s up to the junior new hire from out of town to ferret out and do something about a senior Court of Appeals judge? Well, when it benefits your side, I suppose.
All Heat, No Light
Those who turned off the hearing before the twelfth hour missed the best exchange, and one that perfectly illustrates how ridiculous the whole production is. This vignette stars presidential hopeful Senator Kamala Harris (D-CA) and Brett Kavanaugh. Here’s your viewing guide. Harris obviously has some information that Kavanaugh, at some time, spoke with someone at that firm, mentioning Mueller. If what Judge Kavanaugh said in that exchange was damning for his nomination, you can be sure we would have heard about it by now. Harris wants the judge to say yes so that reports will say “SUPREME COURT NOMINEE DISCUSSED TRUMP CASE WITH HIS LAWYER.” If he says no, then she thinks she can hang him on dishonesty.
Judge Kavanaugh meanwhile is not concerned he engaged in some forbidden conduct or conspiracy over Donald Trump, but is afraid he did have a conversation with someone who does some work at the firm but does not know that connection. He is struggling to think of who he knows at the firm, who might fit the bill for Harris’ question. Here are the relevant parts:
HARRIS: “Judge, have you ever discussed Special Counsel Mueller or his investigation with anyone?”
KAVANAUGH: “Well it’s in the news every day … ”
HARRIS: “Have you discussed it with anyone?”
KAVANAUGH: “Uh, with other judges I know.
HARRIS: “Have you discussed Mueller with anyone at Kasowitz Benson Torres, the law firm founded by Mark Kasewitz, President Trump’s personal lawyer?”
HARRIS: (interrupting) “Be sure about your answer sir.”
Then, a moment later:
HARRIS:“Have you had any conversation about Robert Mueller, or his investigation with anyone at that firm? Yes or no?”
KAVANAUGH: “Is there a person you’re talking about?”
HARRIS: “I’m asking you a very direct question. Yes or no?”
KAVANAUGH: “I’m not remembering, but I’m happy to be refreshed, or if you want to tell me who you’re thinking of.”Senator Kamala Harris
HARRIS: “Are you saying that with all that you remember, you have an impeccable memory, you’ve been speaking for almost 8 hours, I think more, with this committee about all sorts of things you remember, how can you not remember whether or not you had a conversation about Robert Mueller, or his investigation with anyone at that law firm? This investigation has only been going on so long sir, so please answer the question.”
A moment later:
KAVANAUGH: “I would like to know the person your thinking of … ”
HARRIS:“I think you’re thinking of someone and you don’t want to tell us. Who did you have a conversation with at-“
So, Harris asks, and when Kavanaugh replies she gives him that “Be sure” line. As in – I know the answer, and it is yes. So Kavanaugh is then 100% racking his brain and on the defensive trying to come up with some idea who she is speaking of. Harris offers no help but demands Kavanaugh certify that he has had no conversation with any of the many hundreds of people at the firm. Silly – if you’re looking for something other than a soundbite.
Kavanaugh started to say something in reply, but Senator Lee interrupted with an objection, and the best hearing interrupter of the confirmation joined in. Whoever she was, she should give lessons to the other ladies who wish to interrupt the Senate’s work. “Be a hero and vote no!” Clearly and robustly – she had the pipes for sure – that is how you disrupt a committee hearing.
While there were plenty of screaming, shouting hearing protesters on day two, the frequency of the outbursts was stretched. Either that or everyone was so used to it that it seemed normal. Chairman Grassley (R-IA) seemed quite willing to grant a heckler’s veto to the protesters. As Judge Kavanaugh was responding to a question of his, another protester popped off, and Grassley said:
Let these people have their free speech and interrupt the 300 million people listening. If they (protesters) want to affect what the other 300 million hear from you, then that’s just too bad. You proceed now.
The hearings continue on Thursday, at least, and LN will be there.