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The Many, Many Questions Brett Kavanaugh Refused To Answer

Amelia Harnish
September 7, 2018, 9:50 PM
Photo: Chip Somodevilla/Getty Images.
As four days of raucous hearings comes to an end, supporters of Supreme Court nominee Brett Kavanaugh can rest easy knowing his ascension to the highest court is still very likely. For the rest of us — those who know the difference between abortion and contraception, who understand what’s at stake not just for people with uteruses, but for workers, students who have been fired upon by the automatic weapons Kavanaugh doesn’t find “unusual” enough to ban, people with pre-existing conditions, people of color, people who don’t think the president is above the law — all there is to say is, ugh.
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In the end, this hearing was little more than a good bit of theater. Don’t get me wrong — it was riveting at times (from Sen. Booker's "histrionics" to Sen. Leahy's "how convenient" quip) and no matter what, it is of paramount importance to the workings of our democracy that a lifetime appointee be grilled in public view. But thanks to the partisan disease in Washington, which is best exhibited by the modern Republican party’s willingness to look the other way about literally anything in the service of a return to a draconian yesteryear, what is supposed to be a solemn and important exercise was ultimately a futile sham.
Over and over again, Kavanaugh dodged questions on pressing issues. It’s a little bit like that age-old philosophical question: If a tree falls in the woods when no one is around to hear it, does it make a sound? If a Supreme Court nominee appears before the judicial committee, but can’t answer a single important direct question, without stalling or dodging, about matters of grave judicial importance was he really there at all?
Yes, as Kavanaugh unctuously noted in his opening remarks, there is a long tradition of Supreme Court nominees refusing to speak about specific issues that could come up in future cases. But the sheer number of times he played that card, plus the way he flushed and wriggled when the questioning got particularly direct — as though turning into an actual weasel before our very eyes — gave off the appearance that he himself knows that his views about the law put him at odds with a great majority of Americans today, many of whom rely on the protections provided by a modern, and yes more liberal, interpretation of the Constitution.
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On all the hot-button issues: abortion rights, gay marriage, sexual harassment, and executive power, Judge Kavanaugh attempted to speak in circles around his questioners.
For starters, despite Kavanaugh’s vague assurances to Sen. Susan Collins that Roe v. Wade, the precedent that legalized abortion in America, is “settled law,” he refused to comment directly on whether he believes the decision is “correct law.” He became visibly uncomfortable when Sen. Kamala Harris attempted to pull out Judge Kavanaugh’s actual views on the legality of abortion, and again cited judicial independence as the reason he could not comment. He then all but burst into flames when she moved on to the question, “Can you think of any laws that give government the power to make decisions about the male body?”
When Sen. Harris asked him to comment on the comment on the correctness of Obergefell v. Hodges, the case that legalized same-sex marriage, he declined to share his professional opinion here as well.
To be fair, Judge Kavanaugh was very direct in his assertion that no woman should ever face sexual harassment. But when Sen. Mazie Hirono asked him pointed questions about his time serving as a clerk under disgraced federal judge, Alex Kozinski, who retired in December after being accused of harassment and assault by 15 women, he retreated into his clam. He could not remember if he had been on infamous e-mail list that Kozinski reportedly used to send vulgar jokes and other inappropriate messages to his friends, including his law clerks.
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Beyond the questions of much importance to women and queer people’s lives in particular, Judge Kavanaugh also refused to answer questions that would pertain to President Donald Trump. He declined to say whether a president can be forced to testify in a criminal case, whether a sitting president can be required to respond to a subpoena, or whether the president can pardon himself. All hypotheticals, Kavanaugh said.
He couldn’t even say whether a President attacking a judge based on his race or heritage is appropriate or not — something you’d think someone who cares so much about judicial independence would be able to do, at the very least.
A particularly unsettling moment came when Sen. Harris asked Kavanaugh on Wednesday night if he had any conversations about Robert Mueller’s investigation with anyone at Trump’s personal attorney’s law firm. He became a puddle, unable to speak in clear sentences at first. “I’m just trying to think, do I know anyone who works at that firm?” Kavanaugh said, despite the fact that he later acknowledged a friendship with Ed McNally, who most certainly works at Trump’s law firm.
Later, on Thursday, he fared better. When Sen. Orrin Hatch, re-visited Sen. Harris’ line of questioning Judge Kavanaugh, he clarified by saying: “I haven’t had any inappropriate conversations about that investigation with anyone. I’ve never given anyone any winks, hints, forecasts, previews, nothing, about my view as a judge, or how I would rule as a judge on that or anything related to that.”
Mmkay.
In the end, it doesn’t really matter what Judge Kavanaugh said or didn't say at the hearing. He was hand-picked by a president, and a cabal of ideologues, whose actions prove they simply don't care that much about those of us for whom the expansion of reproductive rights, civil rights, marriage rights, are so essential. The final vote on Judge Kavanaugh’s fate — and ours — has been set for September 20. But if I'm being honest, I'm not all that hopeful.
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