The less said, the better. That’s the mantra of any nominee before the Senate, especially when the White House and Senate are in the same party’s hands. The aim, after all, is to win confirmation, and in these partisan times, an ill-chosen phrase can be damaging to a nominee’s prospects.
Like high court nominees before him, Judge Brett Kavanaugh stuck to the script during his testimony this week at the Senate Judiciary Committee. Still, Kavanaugh revealed a few things about himself, professionally and personally.
Here are a few things we learned about President Trump’s choice for the high court:
The Real World
Kavanaugh said repeatedly that he is aware of the consequences of his decisions, including in his dissenting opinion that would have struck down Washington, D.C.’s ban on semi-automatic assault weapons. “And I want to reassure everyone that I base my decisions on the law, but I do so with an awareness of the facts and an awareness of the real world consequences,” Kavanaugh said in one formulation. He noted that he grew up in the Washington area when there was a lot of gang and gun violence. Kavanaugh grew up in Bethesda, Maryland, which is not known for rampant gun violence.
Some Democratic senators weren’t reassured, pointing to mass school shootings committed with semi-automatic rifles. Sen. Richard Blumenthal said Kavanaugh’s view on what gun control is permissible “is out of touch with reality.” He also would not tell Sen. Patrick Leahy if 3D-printed guns could be banned.
But That’s Too Real
Sen. Jeff Flake, a frequent Trump critic, posed a real-world question when he asked Kavanaugh to weigh in about Mr. Trump’s recent tweet that criticized Attorney General Jeff Sessions and the Justice Department for indicting two Republican congressman ahead of the midterm elections and “putting two easy wins in doubt.” Kavanaugh would not not bite on that or any question dealing with Mr. Trump’s attacks on prosecutors or federal judges. “I don’t think we want judges commenting on the latest political controversy,” Kavanaugh said.
He also told Democratic Sen. Sheldon Whitehouse that he has not taken a position on indicting a sitting president.
Opponents of Kavanaugh’s nomination pounced on his use of certain terms in the context of abortion and affirmative action to assert that he was sending a signal to conservatives that he is on their side, despite his measured rhetoric. Explaining his opinion in a case involving religiously affiliated groups that object to paying for contraception under the Affordable Care Act, Kavanaugh referred to “abortion-inducing drugs,” a term often used by abortion opponents to describe some contraceptives. Kavanaugh supporters say he was just repeating language used by the groups that filed the lawsuit, though his 2015 opinion did not use those words.
Showing Kagan Some Love
William Rehnquist, Antonin Scalia and Anthony Kennedy may be Kavanaugh’s judicial heroes, but the nominee invoked Justice Elena Kagan, a nominee of President Barack Obama, more than any of them at the hearing. Kagan’s name escaped Kavanaugh’s lips more than 40 times, most often to provide cover for his refusal to weigh in on issues that could come before the court. “As Justice Kagan put it, you can’t as a nominee in this seat give a thumbs up or thumbs down. That was — that’s her word,” he said in declining to say whether Kennedy’s 2015 opinion extending same-sex marriage nationwide was correct. He answered similarly when asked about abortion and “just the whole body of modern Supreme Court case law.” He repeated the “thumbs up or thumbs down” phrase several times throughout the hearings.
Kagan, incidentally, was the dean at Harvard Law School who hired Kavanaugh to teach there.
Speaking of Democratic Nominees
Kavanaugh had kind words for his appellate court colleague and chief judge, Merrick Garland, whose nomination by Obama Senate was essentially ignored by Republicans in 2016. The gamble by Senate Majority Leader Mitch McConnell paid off when Trump won election and put Justice Neil Gorsuch in the seat that Justice Antonin Scalia held until his death.
Against that backdrop, it was somewhat surprising when some Republicans on the Senate Judiciary Committee talked about how often Kavanaugh and Garland have voted together on the federal appeals court in Washington. “What I found that was striking is that in the 12 years you’ve been on the D.C. Circuit, of all the matters that you and Chief Judge Garland have voted on together, that you voted together 93 percent of the time,” Sen. Ted Cruz of Texas. Less than two weeks before the 2016 election, Cruz suggested the Senate’s refusal to act on Garland’s nomination might continue even if Hillary Clinton ultimately won election.
Kavanaugh called Garland “a great judge — a great chief judge, and he’s very careful, and very hardworking, and we work well together.”
A Sporting Guy
Football, baseball, basketball, hockey and lacrosse all got mentions from the sports-crazed Kavanaugh, who even identified the seats he and his father had at professional football games in Washington. On his final day of testimony Thursday, Kavanaugh’s two daughters were among roughly 20 girls in Catholic school uniforms — players on basketball teams he has coached — who marched into the hearing room and took up seats behind Kavanaugh to make for an irresistible, if contrived, photo op.
When Cruz asked Kavanaugh if he would utilize the basketball court above the Supreme Court chambers if confirmed, the judge eagerly replied that he would.
But the sports references didn’t stop there. He called the Supreme Court a “team of nine committed to deciding cases according to the Constitution and laws of the United States.” That image stood in contrast to Justice Oliver Wendell Holmes’ more stinging description of the court as “nine scorpions in a bottle.”
The Male Body
One of the few times Kavanaugh seemed thrown, even momentarily, was when Harris, the California Democrat, found a new way to ask Kavanaugh about abortion.
“Can you think of any laws that give government the power to make decisions about the male body?” she asked.
Kavanaugh said: “I’m happy to answer a more specific question. But…”
After a bit more back and forth, she repeated the question. Kavanaugh answered, “I’m not — I’m not — I’m not thinking of any right now, senator.”