by Kevin Daley
Attention is fixed on a handful of moderate senators expected to cast the decisive votes on Judge Brett Kavanaugh’s nomination to the Supreme Court, after Kavanaugh emerged relatively unscathed from several days of testimony before the Senate Judiciary Committee.
Democrats tried to infuse the hearings with defiant gestures and dramatic reveals — like a 2003 email purporting to show Kavanaugh misled the committee about his views on Roe v. Wade — but their tactics gained little traction with key lawmakers, while the judge put in a disciplined performance throughout.
“Over the past three days, Judge Kavanaugh demonstrated exactly why President Trump nominated him to the Supreme Court,” said White House deputy press secretary Raj Shah. “His fidelity to the Constitution, impeccable qualifications, and extraordinary temperament were on full display for the American people to see. Through long hours and days of questioning, Judge Kavanaugh consistently reinforced his firm belief in the bedrock principles of judicial independence and the rule of law.”
For his part, Kavanaugh avoided serious blunders, meeting pointed questions about abortion, race, guns, and executive power with narrow, carefully planned answers, showing good command of legal doctrine but little about his actual views. Supreme Court nominees have generally avoided divulging their substantive legal positions, a practice Kavanaugh liberally invoked during the hearings.
He also maintained a genial demeanor throughout the week. Personal conduct during grueling confirmation hearings is seen as a test of judicial temperament.
Kavanaugh sparred with Democrats about his views on abortion throughout the first round of questioning, calling Roe and its 1992 follow on Planned Parenthood v. Casey “precedent on precedent,” but declining to say whether it was rightly decided.
The New York Times subsequently published a 2003 email in which Kavanaugh, then a White House lawyer editing a draft opinion piece, contested the claim that academics consider Roe “settled law,” noting the Supreme Court can and does overturn precedent.
“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the court can always overrule its precedent, and three current justices on the court would do so,” he wrote.
Democrats saw a contradiction between Kavanaugh’s sworn testimony and the 2003 email. If nothing else, they said, the email made his repeated invocations of respect for precedent irrelevant. Allegations of perjury were rampant on social media.
Brett Kavanaugh had no problem saying Roe v. Wade is “settled law” but he refused to tell me if he thought it was correctly decided. His own email shows what he believes about the Supreme Court’s ability to overturn Roe. This is #WhatsAtStake, plain and simple. pic.twitter.com/7dq3ITnuS3
— Sen Dianne Feinstein (@SenFeinstein) September 6, 2018
But the revelation did not appear to resonate with pro-choice Republicans, whose support is essential for Kavanaugh’s confirmation. Speaking with reporters Thursday, GOP Sen. Susan Collins of Maine said she didn’t see the email as especially important.
“I am told that he was editing an op-ed for clarity and was merely stating a fact that three judges on the court were anti-Roe,” Collins said. “If that’s the case then, and it’s not expressing his view, then I’m not sure what the point is.”
Democratic Sen. Cory Booker opened Thursday’s proceedings on a rousing note, revealing he had leaked confidential records from Kavanaugh’s White House service to The New York Times and posted others on his website. Booker claimed he had violated Senate rules in doing so, and dared colleagues to expel him from the chamber, styling his actions an “I am Spartacus moment.”
Republican aides said the documents in question had been cleared for release on Wednesday night. As such, it does not seem Booker actually broke Senate rules, and it is unclear if punitive action will follow.
As the first round of questioning ended late Wednesday evening, Democratic Sen. Kamala Harris of California opened with a tantalizing line of inquiry suggesting that Kavanaugh had discussed special counsel Robert Mueller’s investigation with attorneys at Kasowtiz Benson Torres, a law firm Trump retained to represent him in an early phase of the investigation.
A senior administration official involved in the confirmation process told The Daily Caller News Foundation Thursday that Kavanaugh reviewed a roster of attorneys who worked at the firm after Wednesday’s hearing. He knew only one lawyer at Kasowitz, per the official, and said he had not discussed the Mueller probe with that person.
Kavanaugh denied having improper conversations with anyone about the Mueller investigation during his Thursday testimony, but answered evasively when pressed about such exchanges with Trump administration officials. He ultimately told lawmakers that he worked with White House staffers to anticipate questions relating to Mueller during prep sessions, but insisted he had not shared his views on the matter or made any guarantee as to how he might rule on a case arising from the investigation.
All told, Democrats did not produce solid evidence of impropriety on Kavanaugh’s part, and Harris would not tell reporters why she believed the judge communicated with Kasowitz attorneys.
Though gratifying for progressive activists, Booker and Harris’ tactics could complicate the reelection bids of Democratic colleagues representing states Trump carried in 2016. Conservative advocacy groups bluntly urged Democratic Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana to distance themselves from Booker and Harris by voting for the judge’s confirmation.
“After an embarrassing performance by judiciary committee Democrats and their extremist interrupters, Judge Kavanaugh proved, unequivocally, that he has the temperament, experience, and independence to serve on the supreme court,” said Gayle Trotter, spokeswoman for the conservative Judicial Crisis Network. “Joe Manchin, Heidi Heitkamp, Joe Donnelly and other red state Democrats risk their political careers if they align themselves with the far left wing of their party in Chuck Schumer, Corey Booker and Kamala Harris.”
Booker and Harris are both seen as contenders for the Democratic presidential nomination in 2020.
Speaking Friday with conservative commentator Hugh Hewitt, Senate Majority Leader Mitch McConnell said that Kavanaugh will be confirmed before the Supreme Court returns from its summer recess on Oct. 1.
“He’ll be on board at the Supreme Court by the first Monday in October, which you and I both know is the beginning of the October term,” McConnell said.
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Kevin Daley is a reporter Daily Caller News Foundation. Follow Kevin on Twitter.