- The Washington Times - Thursday, September 6, 2018

Over three days of hearings, Judge Brett M. Kavanaugh has been accused of being an accomplice to criminal theft, of being complicit in sexual harassment and of using code words to suggest allegiance to racists.

The careless hand gesture of an aide sitting directly behind him sent Twitter into a tizzy with speculation that she was secretly flashing a “white power” symbol to millions of people watching at home.

One senator accused him of being bribed by corporate interests, and another insinuated that Judge Kavanaugh had secret and inappropriate conversations with President Trump’s law firm — though she refused to say who among the 350 lawyers at the firm she believes the conversations were with, nor what nefarious doings she suspects.

They’ve been the craziest confirmation hearings in decades — yet they’ve done little to change the trajectory of Judge Kavanaugh, who still appears headed for a narrow confirmation to the Supreme Court.

“You’re going to get confirmed,” Sen. Lindsey Graham, South Carolina Republican, told the judge. But he added that the “circus” nature of the hearings may have poisoned the process for future nominees. “I worry about the people coming after you. Every time we have one of these hearings, it gets worse and worse and worse.”

Little new legal ground was plowed Thursday. Judge Kavanaugh continued to follow the path of previous nominees in declining to opine on issues that could come before him on the high court or even in his current job as a judge on the U.S. Circuit Court of Appeals for the District of Columbia.


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Judge Kavanaugh also declined to praise or criticize Mr. Trump despite repeated attempts by Democrats to prod him in either direction. He also would not commit to recusing himself from cases involving the president’s legal entanglements, explaining that it would violate the judicial code to say anything about that at this point.

What the judge did do is repeatedly vow to be independent of the president or other influences. He said his chief loyalty is to the Constitution.

In one of the more pointed exchanges, Sen. Kamala D. Harris, California Democrat, said she had information that Judge Kavanaugh had talked about Mr. Trump’s legal problems with lawyers at a firm representing the president. But she declined to say any more, leaving the judge to wonder what she was suggesting. He eventually denied the accusation altogether.

In addition to Ms. Harris’ suggestions of collusion, one senator accused the judge of being bought by wealthy corporate interests, and another pressed him to explain whether he was complicit in sexual harassment by a judge for whom he had clerked in 1991. That judge resigned last year amid the harassment accusations.

Sen. Cory A. Booker, New Jersey Democrat, said the judge’s use of a geographic description for a crime-ridden area of the District of Columbia in one opinion was “racially coded language [that] can further the disparate treatment of people of color with the police.”

Ms. Harris wondered about his use of the term “racial spoils system” in a 2-decade-old column.

“Are you aware that the term is commonly used by white supremacists?” she asked.

“The answer to your question is no,” the judge replied.

Perhaps the most jarring accusation aimed at Judge Kavanaugh was that he was complicit in a criminal theft. Sen. Patrick J. Leahy, Vermont Democrat, said the judge received information from documents “stolen” from Democratic computers from 2001 to 2003.

Those documents, which detailed Democrats’ strategy on President George W. Bush’s judicial nominees, were obtained by Manuel Miranda, a Republican staffer who shared information gleaned from them with Judge Kavanaugh and others at the White House.

Mr. Leahy called it a “digital Watergate.”

“You said you had never received any stolen materials. That doesn’t appear to be accurate,” Mr. Leahy said.

Judge Kavanaugh acknowledged sharing information with Mr. Miranda but said he never suspected that the information was pilfered.

The hearing did not plumb the depths of the 1991 hearings for Justice Clarence Thomas, which featured charged accusations of sexual harassment, including pornography preferences and a conversation about pubic hair on a Coke can.

Justice Thomas declared the proceedings a “high-tech lynching.”

This week’s hearing lacked the sordidness of the Thomas hearing but made up for it in vitriol — both on the dais and in the viewing gallery. One Republican senator said he counted more than 200 protesters ousted over three days.

“I never before saw observers in the hearing room physically removed by the police,” said Mitchell H. Rubinstein, a New York-based lawyer.

“The Democrats do not have the votes to stop the nomination and never did. I do not think their strategy changed and the vitriolic nature of some of the comments demonstrates how frustrated they feel,” he said.

Josh Blackman, a professor at the South Texas College of Law, said Judge Kavanaugh came through the chaos well, combining the legal sophistication of Chief Justice John G. Roberts Jr. and Justice Elena Kagan with a personable approach that topped that of Justice Neil M. Gorsuch.

“Gorsuch got irritated at a few junctures,” Mr. Blackman said. “I didn’t see the Dems get under Kavanaugh’s skin at any point.”

He also marveled at his command of cases from memory, calling it a “superhuman” ability that few judges have.

“You can’t take a briefing book and learn the stuff he’s learned,” Mr. Blackman said.

The judge’s encyclopedic knowledge made for bad television. The cable news networks cut away from continuous coverage early Wednesday and checked in only occasionally for follow-up food fights.

C-SPAN did cover the entire proceedings for viewers at home.

But the most important audience for the hearings is a small group of senators who still seem to be undecided on how they will vote.

Among them are two Republicans, Sens. Lisa Murkowski of Alaska and Susan M. Collins of Maine, and perhaps five red-state Democrats. None of them hinted at how they will vote.

“You know, it’s not over yet,” said Sen. Heidi Heitkamp, North Dakota Democrat. “I think that there have been tough questions, and he’s held up pretty well.”

Sen. Joe Manchin III, another Democrat whose home state of West Virginia voted overwhelmingly for Mr. Trump in 2016, said he was “still listening.”

Ms. Murkowski, who said she tracked Wednesday’s hearings to the end, said Judge Kavanaugh survived some tough questioning.

“I think yesterday was a long, hard day. I was with him until 10 at least by TV. I had the easier part of the job,” she said.


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