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WASHINGTON – All confirmation hearings of the Supreme Court are sort of empty exercises, but most have a redemption feature or two. For a few moments, at least, the candidate can be highlighted.
Remember the fantasy of Judge Neil M. Gorsuch, the devious spirit of Chief Justice John G. Roberts Jr. and Judge Elena Kagan, or the inspiring story of Judge Sonia Sotomayor.
Last week's confirmation hearings for Judge Brett M. Kavanaugh, a candidate for President Trump's Supreme Court, were lacking in these clarifications. Judge Kavanaugh's behavior was insipid and ruthless, and he went through two days of marathon questioning without revealing anything more than his long resume, which reflected a partisan past and a deeply conservative judicial record.
Judge Kavanaugh must have carefully studied the previous confirmation hearings because he has assimilated all his key lessons: to say nothing, to say it at length, then to repeat it.
His moderate affect and his boxed medications to the rule of law masked the importance of the moment. Its confirmation would be the culmination of a decades-long Conservative legal agenda that would provide the fifth vote necessary for the Supreme Court to exercise firm and lasting control.
There was a circular quality to the procedure that could have been fun at different times.
Democratic Senators have, for example, sought assurances that Judge Kavanaugh was not "a human torpedo launched during the Mueller Inquiry," according to Sheldon Whitehouse, Rhode Island Democrat.
They wanted a promise that Judge Kavanaugh would be independent of Mr. Trump, asking him, for example, to promise to recuse himself from cases arising from Robert S. Mueller III's investigation of the president.
Judge Kavanaugh refused. Such a commitment would jeopardize its judicial independence.
Judge Kavanaugh's general strategy was summarized in a 1981 memorandum prepared by a young White House lawyer to prepare Judge Sandra Day O'Connor for her confirmation hearings.
"The approach was to avoid giving specific answers to direct questions about legal issues that may arise in court," said the memo, "but demonstrates a firm response to the subject and a knowledge of relevant precedents and arguments . "
The author of the note was John Roberts, and he took his own advice during his confirmation hearings in 2005 to become Chief Justice of the United States.
Judge Kavanaugh took the same advice. He is an accomplished judge, respected by current judges, and has demonstrated a seemingly complete command of the Supreme Court precedent.
He was competent but not flippant, summoning effortlessly the names and summing up the details of the old decisions without indicating how they would apply to new controversies.
He gave the same answers countless times, explaining, for example, that Roe v. Wade had established a constitutional right to abortion in 1973 and the Supreme Court had reaffirmed it on a number of occasions, particularly in 1992. But he did not want to say whether he was ready to reject it.
When the next senator asked questions about abortion, he gave the same answer, resuming in 1973. The hours passed.
"Like most nominees before him, Kavanaugh has not made any big mistakes," he said. Paul M. Collins Jr., a political scientist at the University of Massachusetts, Amherst. "With few exceptions, he was composed throughout the hearing, despite the hostile questions of the Democratic senators."
Judge Kavanaugh was less on his guard when questions went from the law to his own actions. Democratic senators said the recently released documents raised questions about its veracity, especially in previous testimony before the Judiciary Committee. Judge Kavanaugh appeared to be wary of possible pitfalls and gave vague answers where the categorical would have stopped the interrogation.
The protesters interrupted the hearings at regular intervals. Democratic senators accused their Republican counterparts of retaining information and rushing the process unnecessarily.
In total, said Lori A. Ringhand, a law professor at the University of Georgia, the hearings have been the most controversial since 1991 when Justice Clarence Thomas was accused of sexual harassment.
"I am troubled by what appears to be an evolution towards less transparency and responsiveness," said Professor Ringhand. "The purpose of having public hearings is so relevant that questions can be examined not only for senators, but for all of us. I fear that this hearing is a step forward and that it will return to the time of confirmation as behind-the-scenes affairs. "
In the midst of this discord, Judge Kavanaugh was a placid presence. Even though he deviated most of the questions on legal issues, he quickly stated that he was attentive to the real consequences of his decisions.
During her confirmation hearings in 2009, Judge Sotomayor was forced to distance herself from the notion, which was urged by President Barack Obama, that empathy had a role to play in decision-making. judicial. Judge Kavanaugh kissed him, or something that looks a lot like him.
"I do not live in a bubble," he said while discussing abortion. "I live in the real world, I understand the importance of the problem."
In answering questions about his broader view of the rights of the Second Amendment, he repeatedly stated that he was alert to the devastation that could cause guns because he had grown up in the Washington area .
"This has been known as the murder capital of the world for a while, this city," he said, "and there was a lot of handgun violence at the time . "
Judge Kavanaugh added a few sentences to the standard confirmation booklet. He would join him, he said, "a team of nine people". He was prohibited from answering certain questions by "named precedent", which had been established by previous, unresponsive candidates.
He used a rare and colorful phrase by refusing to answer questions about Mr. Trump's attacks on the justice system. "I will not enter three postal codes of political controversy," he said.
On this last point, he managed to say less than Judge Gorsuch, the first candidate of Mr. Trump. "When someone criticizes the honesty, integrity or motives of a federal judge, I find it disheartening, I find it demoralizing," Judge Gorsuch said during his hearings confirmation last year.
Professor Collins stated that he was surprised by Judge Kavanaugh's approach.
"Democrats have argued that Justice Kavanaugh was very partisan and loyal to the president," he said. "The candidate's refusal to criticize the president in his attacks on the judiciary did not help his case."
Judge Kavanaugh, 53, sat for 12 years at the US Court of Appeals for the District of Columbia Circuit and wrote more than 300 notices.
But he received fewer questions about his judicial work than other candidates who had sat on federal appeal courts. (Remember Judge Gorsuch frozen trucker case? Or Chief Justice Roberts dissenting about an unfortunate toad?
Instead, Democratic Senators focused on Judge Kavanaugh's work in the Bush administration, his role in investigating President Bill Clinton, and his changing views on the wisdom of subjecting presidents to prosecution. criminal.
In 1995, Judge Kagan, then a young law professor, wrote a review article criticizing the modern confirmation hearings. "The safest and safest way to the price," she wrote, "lies in alternating declarations and judicious silence."
She expressed a sort of fear of reluctance to Judge Ruth Bader Ginsburg's ability to avoid answering Senators' questions in her 1993 confirmation hearings.
"Judge Ginsburg's privileged technique took the form of a pincer movement," Judge Kagan writes. If a question was too specific, she would refuse to answer on the grounds that she did not wish to schedule a vote. If it was too general, she would say that a judge should not deal with abstractions or hypothetical questions.
Professor Kagan explained what was considered too specific: "Basically, anything that could affect a case that could one day be brought to court". She also described what was too general:
This summarizes Judge Kavanaugh's approach, with only a few notable detours. The most important was his eulogy calculated for United States c. Nixon, the 1974 decision in which the Supreme Court unanimously condemned President Richard M. Nixon to subpoena the Oval Records. The decision would of course be the precedent if a dispute arising from the Mueller Inquiry had been brought to the Supreme Court.
Choosing the Nixon Bands case was an interesting choice, as this is not part of the usual canon of decisions reviewed by Supreme Court candidates. But Judge Kavanaugh ranked it among the greatest successes of the Supreme Court.
Of these, there are only three others: Brown c. Board of Education, the 1954 decision that declared separate public schools unconstitutional; Youngstown Sheet and Tube Company c. Sawyer, the 1952 decision rejecting President Harry S. Truman's attempt to seize the country's steel mills to support the Korean war effort; and Marbury c. Madison, the 1803 decision that lays the groundwork for the Supreme Court's power of judicial review.
Raising the Nixon affair in this rarefied atmosphere was striking, especially since the decision is relatively recent. After all, it was issued just one year after Roe. But when Judge Kavanaugh answered questions about Roe unequivocally, he embraced the Nixon affair.
"It was one of the best moments because of the political pressures of the time," he said. "The courts have defended judicial independence in a time of national crisis."
However, he drew the line by saying, for example, that a summons to appear before the grand jury asking for Mr. Trump's testimony should be applied. This would require, he said, answering a hypothetical question.
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