Kavanaugh’s ’06 hearing gets fresh look
WASHINGTON — Both Democrats and Republicans are looking to Brett Kavanaugh’s May 2006 confirmation hearing for the U.S. Court of Appeals for clues how the Supreme Court nominee handled certain questions.
In 2006, Sen. Charles Schumer, D-N.Y. — the future Senate minority leader — won special privileges to lead questions for Democrats. His chief counsel, Preet Bharara, sat behind Schumer, three years before Bharara was confirmed as U.S. attorney in Manhattan.
Two weeks after that hearing, the Senate confirmed Kavanaugh to the seat on the
D.C. Circuit, with just four Democrats supporting him, ending one of the most contentious nomination fights waged by President George W. Bush’s White House. It lasted more than two years, included an intervening bipartisan “gang” deal, and a highly unusual second hearing before the Judiciary Committee.
“Well, he wouldn’t answer questions,” Sen. Patrick Leahy, D-Vt., the ranking member in 2006 who is now a senior member of the Judiciary Committee, recalled recently, still upset about the outcome. “This will be a little bit different this time.”
Republicans agree it will be different. Democrats in 2006 tried to paint Kavanaugh as an inexperienced political hack. Kavanaugh worked with the team of independent counsel Kenneth Starr, and he co-wrote the report that served as the basis for President Bill Clinton’s impeachment. He later worked on the Bush campaign effort to halt the recount of votes in Florida in the 2000 presidential election, then served as an aide to President Bush.
The Senate Judiciary Committee has requested information on Kavanaugh’s experiences during that era of his career. The office of Sen. Charles Grassley, R-Iowa, said the questionnaires were sent Friday evening after consultation with the committee’s top Democrat, Sen. Dianne Feinstein of California.
Grassley, as chairman of the Senate Judiciary Committee, will lead the confirmation hearing.
However, Republicans expect to steer the Supreme Court confirmation debate toward Kavanaugh’s 12 years on the D.C. Circuit, predicting a mostly partisan vote that results in confirmation.
“From 2006 to now, what kind of judge has he been? He’s been what I thought he would be,” said Sen. Lindsey Graham, R-S.C., a Judiciary Committee member, laughing about how the Democrats view the conservative jurist. “I bet you that he’s been what they thought he would be.”
Democrats are trying to focus their opposition on Kavanaugh’s potential to turn the court rightward as he would fill the seat of a key swing vote, retiring Justice Anthony Kennedy, particularly on abortion rights and the Patient Protection and Affordable Care Act. But they are already issuing demands for emails and paperwork that Kavanaugh handled in his days working for Bush, which could be hundreds of thousands of pages or more in total documents.
They contend that was the standard for Justice Elena Kagan during her 2010 confirmation, when the committee reviewed documents from her time as President Barack Obama’s solicitor general. “Now they’ve got to do the same thing for Kavanaugh,” Leahy said, “and he was there during Guantanamo, torture and a bunch of other things.”
Sen. John Cornyn, R-Texas, who introduced Kavanaugh at his first committee appearance in April 2004, has asked his staff to review last decade’s confirmation to determine what sort of document production is needed now.
“I think that will be informative about the debate we’re about to have,” he said.
Schumer, as minority leader, does not serve on committees and will not take part in hearings like he did last time, but he is trying to mount a more aggressive fight now because the stakes are higher.
The confirmation got tangled up in the 2004 campaign, as the approval of lifetime judicial appointments has historically stalled a few months before a presidential election. By spring 2005, Democrats were filibustering a bloc of judges, and Kavanaugh was among those who would have been blocked.
Finally a bipartisan group of senators reached an accord allowing a bunch of Bush’s nominees to get confirmed, but they retained the Democratic right to filibuster under “extraordinary circumstances.”
Kavanaugh was not mentioned specifically, but Republicans believed his nomination was not “extraordinary” and convinced enough Democrats to abide by that deal for the future Supreme Court nominee.
But first Kavanaugh had to get through Schumer one more time in a second hearing.
Kavanaugh declined to say how he would have voted on Clinton’s impeachment if he were a senator, saying it was inappropriate for an investigator or prosecutor to weigh in on a jury’s verdict — in this case the House’s 1998 impeachment vote and the Senate’s acquittal of Clinton.
Kavanaugh also declined to answer whether Bush’s top political adviser, Karl Rove, helped pick judicial nominees. And when Schumer pressed him on his personal views on abortion law, he demurred.
“I don’t think it would be appropriate for me to give a personal view,” Kavanaugh finally responded, vowing to uphold the Supreme Court precedent articulated in Roe v. Wade.
After Kavanaugh declined to discuss his views of any current Supreme Court justice, Schumer gave up.
“I do not think you have clarified any of these answers that we asked you the first time,” he said.
Two weeks later, the night before Kavanaugh won his vote, Schumer took to the Senate floor to bemoan Democrats’ inability to block Kavanaugh from the federal appeals court.
“I wish we could because America will regret, I believe, having Mr. Kavanaugh on the court for decades to come,” Schumer said.