Politics

The Five Dumbest Questions Put to Judge Kavanaugh (So Far, Anyway)

Supreme Court nominee fields queries touching on Trump, guns, purloined emails, and the elephant in the room

Image Credit: SAUL LOEB / AFP / Getty Images

Brett Kavanaugh on Wednesday had to sit stoically as Senate Democrats peppered him with gotcha questions, interrogatories that amounted to presidential campaign speeches, and queries no one could reasonably expect he would or could answer.

And that was just round one. The Senate Judiciary Committee will get another shot at the Supreme Court nominee Thursday.

Here is a look at the five dumbest questions Kavanaugh (pictured above) has faced (so far):

The questioner: Sen. Patrick Leahy (D-Vt.).

The issue: Leahy pointed to an incident from the early 2000s in which Republican staffers on the judiciary committee hacked into the computer system and stole emails of Democratic senators. Staffer Manny Miranda resigned following the incident.

Leahy said Miranda used emails, draft letters and other materials to help judicial nominees selected by President George W. Bush prepare for their confirmation hearings. Kavanaugh worked at the White House during the time.

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The question: “Did Mr. Miranda ever provide you with highly specific information regarding what I or other Democratic senators were planning on asking certain judicial nominees?”

The answer: Kavanaugh seemed surprised by the question. “What’s up there is 100 percent accurate. That’s my memory,” he said, looking at a portion of the transcript from his 2006 confirmation hearing to be an appeals court judge, during which he fielded the same question.

Kavanaugh said he had no reason to suspect anything improper because it is common to discuss which areas senators are likely to explore at hearings. “That is the coin of the realm,” he said.

* * *

The questioner: Sen. Dianne Feinstein (D-Calif.).

The issue: Feinstein probed Kavanaugh about an opinion he wrote in a gun case after the Supreme Court ruled, in the 2008 District of Columbia v. Heller case, that the government cannot ban handguns. Kavanaugh interpreted that as applying to semiautomatic rifles, which gun control advocates call “assault weapons.”

The question: “How do you reconcile what you’ve just said with the hundreds of school shootings using assault weapons that have taken place in recent history? How do you reconcile that?”

The answer: “Senator, of course the violence in the schools is something that we all detest and want to do something about, and there are lots of efforts, I know, underway to make schools safer,” he said. “I know at my girls’ school, they do a lot of things that are different than they did just a few years ago in terms of trying to harden the school and make it safer for everyone.”

* * *

The questioner: Sen. Richard Blumenthal (D-Conn.).

The issue: The “elephant in the room,” as the senator put it — the question of whether President Donald Trump can legitimately make a Supreme Court nomination given the special counsel’s investigation of a possible conspiracy between Trump and Russian interests during the 2016 campaign.

Blumenthal referred to the president as an “unindicted co-conspirator” by way of the guilty plea entered by his former lawyer, Michael Cohen, to a pair of campaign finance violations.

The question: “I would like your commitment that you will recuse yourself if there is an issue involving his criminal or civil liability coming before the United Sates Supreme Court. In other words, will you take yourself out of ruling on any of the issues involving his personal criminal or civil liability?”

The answer: There is no precedent for a judge to recuse himself under similar circumstances. Nor is there a historical bar against a president under suspicion making judicial nominations.

Bill Clinton made dozens of nominations while special prosecutor Ken Starr investigated him during the Whitewater probe and after the House of Representatives impeached him. Kavanaugh swatted the question away:

“One of the core principles I’ve articulated here is the independence of the judiciary … But one key facet of the independence of the judiciary, as I’ve studied the history of nominations, is not to make commitments on particular cases.”

* * *

The questioner: Sen. Mazie Hirono (D-Hawaii).

The issue: Hirono pressed Kavanaugh about a supposed pattern of hostility the judge has shown toward noncorporate litigants before the U.S. Court of Appeals for the District of Columbia Circuit. She introduced several studies into the record and focused specifically on the times Kavanaugh has dissented from the majority opinion.

The question: “Judge Kavanaugh, why do you rarely dissent on behalf of consumers, workers, or the powerless? And please, don’t talk to me about all of the times you were with the majority, or where you joined other majorities.”

The answer: Kavanaugh, as he has throughout the hearing, emphasized that he strives hard to apply precedents handed down by the Supreme Court, regardless of whether litigants are rich or poor, sympathetic or not.

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“Senator, I’ve ruled for workers many times. I’ve ruled for environmentalists many times — in big cases that involved clear air regulation, particulate matter regulation … One of my most important dissents, Senator, was in United States vs. Burwell,” a case challenging a 30-year sentence handed down to a defendant on a gun charge. Kavanaugh argued that the jury instructions were flawed and that the conviction should be thrown out.

* * *

The questioner: Sen. Jeff Flake (R-Ariz.).

The issue: A prominent Never-Trumper Republican, Flake spent part of his 30 minutes expressing concern about the president.

The question: “But I’m curious, what limits are there — if any — that would prevent a president from centralizing executive power and using it for his own political or personal purposes. What protections are there, statutory, constitutional, that are built into the system?”

The answer:
Kavanaugh essentially told Flake that he is part of a co-equal branch that has plenty of inherent powers. “First, Senator, there are the constraints that are built into the Constitution … the appropriations power, the confirmation power.”

Kavanaugh also referenced the “ultimate remedies” of impeachment and removal from office. He declined an invitation from Flake, however, to weigh in on Trump tweets criticizing Attorney General Jeff Sessions for the indictments of a pair of Republican representatives.

“Senator, I understand the question by I think one of principles of judicial independence … is comment on current events or political controversy I don’t think we want judges commenting on the latest political controversy.”

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