Trump nominee dodges trouble in high court bid

Kavanaugh avoiding politics, specifics during hearing could help later

WASHINGTON – Brett Kavanaugh arrived at his Supreme Court confirmation hearing last week seemingly outflanked by his opponents.

In front of him, five former prosecutors stared down from the Democrats’ side of the Senate Judiciary Committee dais.

Behind him, scores of protesters loomed, ready to interrupt the proceedings at every turn.

After more than 24 hours of testimony, however, Kavanaugh emerged largely unbroken.

How the soft-spoken, 53-year-old federal appeals court judge did it is a lesson in tried and true tactics: Steer clear of politics. Hide behind precedent. Don’t answer hypothetical questions. Empathize with opponents. And have a faulty memory.

Here are four “gotcha” moments he from which he escaped:

❚ Trump’s taunts: Like Associate Justice Neil Gorsuch, confirmed 54-45 last year, Kavanaugh was asked to answer for some of President Donald Trump’s most impolitic remarks. In Gorsuch’s case, it was the president’s 2017 attacks on federal judges. The Coloradan called them “demoralizing” and “disheartening.”

Trump is said to have nearly pulled Gorsuch’s nomination out of personal pique, and Kavanaugh was even more careful. Confronted about Trump’s recent attack on the Justice Department for indicting two Republican congressmen, he said he must stay “three ZIP codes away from the line” of political commentary.

❚ Trump’s travails: More dangerous were the many moments when Democrats linked Kavanaugh’s strong support for a powerful presidency with the possibility that the high court will have to decide whether Trump can be subpoenaed, indicted or pardon himself, or whether he can fire special counsel Robert Mueller.

Kavanaugh refused to answer the questions on the grounds that they were hypothetical and could come to the justices in the future. But standing accused of becoming Trump’s handpicked puppet on the court, he couldn’t leave it there.

“I am one not afraid at all, through my record of 12 years, to invalidate executive power,” he said.

❚ Overturn Roe? Would Kavanaugh vote to overrule Roe v. Wade, the 1973 decision that legalized abortion? A simple yes or no would suffice. Of course, there would be no such answer.

What Kavanaugh cited over and over was the importance – but not the inviolability – of court precedent. And in this case, not just precedent but “precedent on precedent” – the addition of the court’s 1992 ruling in Planned Parenthood v. Casey, which upheld the right but allowed for state restrictions, such as requiring parental consent for minors.

Parental consent led him to dissent last year when the U.S. Court of Appeals for the District of Columbia Circuit allowed an undocumented teenager in federal custody to get an abortion. Kavanaugh said more time should have been allowed to find a sponsor, so the government would not be involved.

“I made it clear it had to happen very quickly,” he said, so that the 17-year-old from Central America wouldn’t bump up against Texas’ 20-week limit. He said he disagreed with a fellow judge who wrote that illegal immigrants lack abortion rights.

“I did the best I could,” he said.

❚ Protesters’ pleas: On other issues that galvanized protesters – gun control, health care and voting rights among them – Kavanaugh pointed to the kinder, gentler rhetoric in his opinions that nevertheless went against liberals’ interests.

His dissent in a case upholding the Affordable Care Act? Just for procedural reasons, he said, and “I expressed my respect for the congressional goal in that legislation.”