Recall the folksiness of Justice Neil Gorsuch, the sly wit of Chief Justice John G. Roberts Jr. and Justice Elena Kagan, or the inspiring up-from-the-projects life story of Justice Sonia Sotomayor.
WASHINGTON — All Supreme Court confirmation hearings are, in a way, empty exercises, but most have a redeeming feature or two. For a few moments, at least, the nominee can come into focus.
Recall the folksiness of Justice Neil Gorsuch, the sly wit of Chief Justice John G. Roberts Jr. and Justice Elena Kagan, or the inspiring up-from-the-projects life story of Justice Sonia Sotomayor.
This past week’s confirmation hearings for Judge Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, lacked those clarifying glimpses. Kavanaugh’s demeanor was bland and unruffled, and he navigated two marathon days of questioning without revealing anything not already on his long résumé, one reflecting a slashing partisan background and a deeply conservative judicial record.
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 mild affect and canned paeans to the rule of law masked the importance of the moment. His confirmation would represent the culmination of a decades-long project of the conservative legal movement, one that would supply the fifth vote needed put it in firm and lasting control of the Supreme Court.
There was a circular quality to the proceedings that might have been amusing in different times.
Democratic senators sought assurances, for instance, that Kavanaugh was not “a human torpedo being launched at the Mueller investigation,” as Sen. Sheldon Whitehouse, D-R.I., put it.
They wanted a promise that Kavanaugh would be independent of Trump, asking him, for instance, to promise to recuse himself from cases arising from Robert Mueller’s investigation of the president.
Kavanaugh refused. Making such a commitment, he said, would jeopardize his judicial independence.
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 approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court,” the memo said, “but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments.”
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.
Kavanaugh took the same advice. He is an accomplished judge respected by the current justices, and 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.
He gave the same answers countless times, explaining, for instance, that Roe v. Wade had in 1973 established a constitutional right to abortion and that the Supreme Court had repeatedly reaffirmed it, notably in 1992. But he would not say whether he was prepared to overrule it.
When the next senator asked about abortion, he gave the same answer, starting again in 1973. The hours passed.
“Like most nominees before him, Kavanaugh didn’t make any big mistakes,” said Paul M. Collins Jr., a political scientist at the University of Massachusetts, Amherst. “With a few exceptions, he was composed throughout the hearing, even in the face of hostile questioning from Democratic senators.”
Kavanaugh was less sure-footed when the questions turned from the law to his own actions. Democratic senators said newly released documents raised questions about his truthfulness, especially in past testimony to the Judiciary Committee. Kavanaugh seemed wary of possible traps and gave vague answers where categorical ones would have shut down the questioning.
Shouting protesters interrupted the hearings at regular intervals. Democratic senators accused their Republican counterparts of withholding information and needlessly rushing the process.
In all, said Lori A. Ringhand, a law professor at the University of Georgia, the hearings were the most contentious since 1991, when Justice Clarence Thomas faced accusations of sexual harassment.
“I am troubled by what seems to be a move toward less transparency and responsiveness,” Ringhand said. “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.”
In the midst of this discord, Kavanaugh was a placid presence. Even as he deflected most questions about legal issues, he was quick to say he was alert to the real-world consequences of his rulings.
At her confirmation hearings in 2009, Sotomayor was forced to distance herself from the notion, which had been pressed by President Barack Obama, that empathy had a role to play in judicial decision making. Kavanaugh embraced it, or something very much like it.
“I don’t live in a bubble,” he said in discussing abortion. “I live in the real world. I understand the importance of the issue.”
In answering questions about his expansive view of Second Amendment rights, he repeatedly said he was alert to the devastation that could be caused by guns because he had grown up in the Washington area.
“This was known as the murder capital of the world for a while, this city,” he said, “and there was a lot of handgun violence at the time.”
Kavanaugh added a few phrases to the standard confirmation playbook. He would be joining, he said, “a team of nine.” He said he was barred from answering some questions by “nominee precedent” that had been set by earlier unresponsive candidates.
He used a rare colorful phrase in refusing to answer questions about Trump’s attacks on the judiciary. “I’m not going to get within three ZIP codes of a political controversy here,” he said.
On that last point, he managed to say less than even Gorsuch, Trump’s first nominee. “When someone criticizes the honesty, the integrity, or the motives of a federal judge, I find that disheartening, I find that demoralizing,” Gorsuch said at his confirmation hearings last year.
Collins said he was surprised by Kavanaugh’s approach.
“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.”
Kavanaugh, 53, has served for 12 years on the U.S. Court of Appeals for the District of Columbia Circuit and has written more than 300 opinions.
But he received fewer questions on his judicial work than other nominees who had served on federal appeals courts. (Remember Gorsuch’s frozen trucker case? Or Roberts’ dissent concerning a hapless toad?)
Instead, Democratic senators focused on Kavanaugh’s work in the Bush administration, his role in the independent counsel investigation of President Bill Clinton and his shifting views on the wisdom of subjecting sitting presidents to criminal proceedings.
In 1995, Kagan, then a young law professor, wrote a law review article critical of modern confirmation hearings. “The safest and surest route to the prize,” she wrote, “lay in alternating platitudinous statement and judicious silence.”
She expressed a sort of grudging awe at Justice Ruth Bader Ginsburg’s ability to avoid answering senators’ questions at her 1993 confirmation hearings.
“Justice Ginsburg’s favored technique took the form of a pincer movement,” 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.
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.”
That summarized Kavanaugh’s approach, too, with only a few notable detours. The most important one was 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.
Singling out the Nixon tapes case was an interesting choice, as it is not part of the usual canon of decisions discussed by Supreme Court nominees. But Kavanaugh ranked it among the Supreme Court’s greatest hits.
Those included, he said, just three others: Brown v. Board of Education, the 1954 decision that ruled segregated public schools unconstitutional; Youngstown Sheet and Tube Co. 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 Marbury v. Madison, the 1803 decision that established the basis for the Supreme Court’s power of judicial review.
Elevating the Nixon case into that rarefied atmosphere was striking, particularly since the decision is relatively recent. It was issued, after all, just a year after Roe. But where 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 Trump’s testimony should be enforced. That would, he said, require him to answer a hypothetical question.
This article originally appeared in The New York Times.