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 Roberts and Justice Elena Kagan, or the inspiring up-from-the-projects life story of Justice Sonia Sotomayor.
Last 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 decadeslong 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 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 vs. 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.
“Like most nominees before him, Kavanaugh didn’t make any big mistakes,” said Paul Collins, 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 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 backroom deals.”
In the midst of this discord, Kavanaugh was a placid presence.
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.
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.”