Kavanaugh Impressions After Two Days of Hearings

I don't know what's in Kavanaugh's head.  I can only speculate based on what I saw as he answered questions from friendly and unfriendly Senators.

1.  He's smart and has a great memory for details.  Except when he doesn't.

He was able to rattle off the numbers of different Federalist Papers and who said what within them.  For example, when Sen. Lee asks him what his Greatest Hits list of Federalist Papers.  Though his ease here is helped by the fact that he teaches classes on this topic and this was from a friendly Senator, so he may have known what the question was in advance.  (Though if that's the case, then he's also a great actor, as he seems very surprised by the question.)



 He could give details about why he decided various cases the way he did - including the facts in the cases.  He's very quick with all this.  Though as you can see in this exchange with Sen. Klobchar, he seems to be talking about facts of the case to avoid answering the question at times.  There are other examples where a Senator tries to move him along saying they've heard his answer to someone else about the context and just please answer the question.   Here's Sen. Klobuchar asking about how Kavanaugh came up with a pricing test in an anti-trust case.

But at other times, he couldn't remember at all.   As in this exchange with Sen. Harris over whether he ever talked to any attorneys at President Trump's firm.  Suddenly, this guy who could answer every detail of every case, can't remember.

CSPAN has posted the entire nearly 8-minute exchange between Kamala Harris and Kavanaugh on the Mueller probe. It is worth your time. pic.twitter.com/ezJVEuDeUK

— Kyle Griffin (@kylegriffin1) September 6, 2018

Now, he says that he doesn't know all the attorneys that work at that firm and asks Sen Harris to give him a name.  She won't do that.  She clearly believes that he is just refusing to answer.  And his demeanor looks a lot like the proverbial deer in the headlights for a good part of this. In contrast to his confidence in other places.

2. Someone, please, ask him if he has ever been wrong about anything"

 At some point, I tweeted that plea. Sometimes very smart people don't realize the limits of their knowledge, and eventually I began to feel that way about Kavanaugh.  When Ted Cruz asked about what he's learned from coaching his daughter's basketball team, he basically said:
1. The importance of coaches
2. The effect you can have on people's lives
You can listen yourself.

Brett Kavanaugh on coaching his daughters' basketball team: "Coaches can have such an impact I think on building confidence." pic.twitter.com/Bff2OiQfVE

— Fox News (@FoxNews) September 6, 2018

He didn't learn anything from the girls themselves that he didn't know before. It just confirmed how much good he was doing for the girls. He didn't learn that, say,  he talked too much sometimes, that they often could do things without his help. Nothing like that.  What he learned was how important he was in their lives.

At another point, he was asked a friendly question about who his audience is when he writes decisions.  His answer was (and I couldn't find that part again now) something like - academics, law students, other judges;  that he hoped his reasoning would help them.  Again, his wisdom is so great, it will help other see the light.

Putting these two responses together with Kavanaugh's relationship with the Federalist Society, I began to think.  But here's a bit more on Kavanaugh and the Federalist Society (from Bloomberg):

"The answer [to the question about how to insure that conservatives get on the Supreme Court after Roe v Wade] was the Federalist Society, a group that has skillfully, brilliantly and patiently educated and nurtured legal conservatives from law school through their careers. Few civil society groups in U.S. history have been as effective. 

There’s nothing nefarious here. The Federalists are remarkably open and transparent. To become an insider, one simply needs to be genuinely smart and genuinely conservative. Over dozens or even hundreds of repeated interactions, mostly organized around intellectual exchange, members get to know one another well. The informal hierarchy that results informs judicial appointments, as it was always intended to do. 

Kavanaugh has long been understood to sit at the top of that informal Federalist hierarchy. Clerking for him was the most coveted job a young conservative could get right out of law school. Nearly all of Kavanaugh’s law clerks went on to clerk for the Supreme Court. That’s extraordinarily rare. Among current judges, only Merrick Garland (nominated by President Barack Obama to the Supreme Court but never voted on by the Senate) has a comparable rate of success. The point is simply that the network, from law students all the way to Supreme Court justices, understood Kavanaugh’s place and saw him as a likely future justice."

There was also some discussion of Kavanaugh meeting with the Black Student Association at Harvard and how he coaches students there on how to get into the pipeline to clerk for the Supreme Court.

3.  The Church of the Federalist Society

In some ways, you could liken the members of the Federalist Society to a group of true believers who work hard to recruit new members and train them in their conservative doctrine and teach them how to insert that doctrine into the courts so that decisions come out consistent with their conservative ideology.  (The Democrats want their take on justice  - which favors the poor and those excluded more, and favors regulation over large corporations - on the court as well, though not nearly in such an organized way, not nearly as effectively.)

So, as I got the sense that Kavanaugh really believes in how right he is about the law, and how he's a great influence on his daughters' basketball team, and how he writes his court decisions so that they will stand as lessons to other judges, law students, and legal scholars, his visits with the black students at Harvard was another part of this.  He's like a true believer who evangelizes for his cause.  While he's polite and respectful at these hearings, he's also right, in his mind, about everything.  And he's an originalist when it comes to the Constitution, just as evangelicals are literalists when it comes to the Bible.  (It appears I'm not the first, by a long shot, to make this comparison.)

There were various times when it was pointed out that Kavanaugh was pushing the law further than anyone else.  In the anti-trust case against Whole Foods for example.  And that didn't bother him at all.  Or that not only was he pushing harder, but other conservative judges took issue with him.  But he wasn't disturbed by this either.  Because he's part of an legal cult (my word, not his) that he believes will eventually fill the courts so that his interpretations will get more supporters over time.

4.  But as smart as he is, he's ruled by doctrine, not by the humans who come before the court

He was repeatedly questioned about his decision in the Garcia case - a 17 year old asylum seeker who got to the US and was detained and then found out she was pregnant.  She went through all the hoops to get an abortion in Texas where she was in custody.  But the Feds, who held her, weren't allowing the abortion.  Kavanaugh, in his dissent, wanted her to get a sponsor so she could get some counseling before having the abortion.  This despite the fact that she'd done what the law required to get around parental consent - she'd gotten cleared by a judge.  Kavanaugh argued that she still had time before the cut off point for abortions in Texas.  But he was hammered hard on this - that he'd added new hurdles for the 17 year old that weren't in the law. He offered a reference that said it was permissible. His interrogator responded, but it wasn't required by the law.  That he'd added it to her burdens here.   The key insight for me here, was how Kavanaugh was wrapped up in legal arguments, not in the extra days or weeks his preferred decision would add to the girl's agony of trying to get the abortion done and over with.  Was he still acting as a coach?  Did he see her like one of his basketball team who would benefit from his counseling?

Sen Booker also asked him about his decision on a South Carolina (I think) voter id law.  Booker gave the example of a 90 year old black veteran who had voted in a previous election but was told he wasn't registered.  He got a drivers license, got a birth certificate, and was asked for further documents, and only got registered when he held a press conference with the governor.  Again, despite a number of clear facts about race discrimination against blacks, he found - as I recall this right - no problem with the voter id law.  His defense was that the other justices found the same.  Booker tried to get Kavanaugh to see that this was no different from the poll taxes that had kept blacks from voting for decades in the South.

Again, I see more concern with clever law that will be adopted by others, than with justice and the consequences to actual human beings.  The legal evangelist spreading the gospel.   That, of course is the positive interpretation.  The negative interpretation would be that he had no problem with the voter id law because it would exclude likely Democratic voters.

I'd note also that another Democratic senator suggested that Kavanaugh's dissent on the Garcia abortion case was what caused him to be added to the Supreme Court nominee list after being left out of two previous lists.  It was argued (I'm using the passive voice here because I can't remember which Senator it was) that his dissent was a signal that he was amenable to Trump's promise to appoint a judge who would repeal Roe v Wade.

5.  Republicans loading Court while they can

With the blocking of the appointment of Merrick Garland for nine months and now the rush to get Kavanaugh approved before the November election - despite the fact that the committee hasn't gotten all the documents that had been asked for.*  Another senator pointed out that Kavanaugh had warned against hasty judicial decisions, but that this hasty decision (the confirmation) wasn't being delayed.  I suspect that Kavanaugh will be approved.  If he isn't, the Republicans could possibly approve someone before new Senators come on board in December, but it would be much harder.  But that assumes that the Democrats can gain a majority in the Senate, which is not a certainty, though the president is doing his best to make that happen.

*There was plenty of party-line debate on this.  The Republicans claiming they got all they needed and the Democrats saying, but there's still more that has been withheld in an unprecedented (for a supreme court confirmation hearing) claim of executive privilege.  And that they'd only gotten the 400,000 (or some such number) pages of documents the night before.  Though one of the Republicans suggested that data technology could help them get through it all in an hour or so. (I'm not sure if he said an hour, but it was a very short time.)

6.  Some impressive women and people of color in the Senate

Amy Klobuchar was knowledgable, tactful, and thorough.
Cory Booker was able to ask difficult questions with respect, but also with persistence.
Kamala Harris and Mazie Hirono took no crap.  They were tough and didn't apologize for their aggressive questions.  My impression was that they are US Senators now and they're not going to allow anyone treat them in any way except as full equals.  And their performances probably help confirm the idea that people of color and women have to be twice as good as white males to get where they are.
That's not to say that white male Senators like Whitehorse  and Durbin weren't also firm interrogators.

I don't claim to know what Kavanaugh's thinking.  I can only speculate based on how he answered questions in the first two days of his confirmation hearings and my ability to interpret such behavior.  But I offer this as one way to interpret all this.  I'm going to post this now, but I'll proof it again tomorrow morning.  (Well, it's 2 hours into the morning already.)


[I tried to embed these videos from C-SPAN, but Blogger is embedding my Blog Banner instead, so I'm giving you links to the videos at C-SPAN.  I was able to embed some Tweets that had videos in them.]