Monday, September 10, 2018

Kavanaugh's tell

Politics is public poker and one of the highest-stakes games around is the contention over U.S. Supreme Court nominees.

Which is why we shouldn’t look to last week's hearings with Supreme Court nominee Brett Kavanaugh for any statements of principles or glosses on his legal thinking. Rather, his testimony shows the way he plays the game. And that he has a tell.

For the most part, Kavanaugh’s cogent and articulate. He speaks in complete sentences, and, when asked, backs up his decisions with thorough discussions of law and policy, even under hostile questioning.

Here’s Kavanaugh, answering a tough question from Sen. Cory Booker (day 2 hearing,, starting around 10:33:52) about his current thoughts about something he said in an interview in 1999: that racial discrimination would essentially disappear in 10 or 20 years.

I think that was, uh, Senator, an aspirational comment, and one, uh, that, uh, to your point, of course I’ve said in my decisions, as you and I have discussed, that, uh, the march for racial equality is not finished and we still have a lot of work to do as a country and as a people on that.

Booker followed pointedly, asking what could conceivably have motivated him to say that, particularly as the 90s were noted for growing racial inequities, as evidenced by, say, the massive increase in the incarceration rate of African Americans. And here's where Kavanaugh gave a one-word answer that seemed like an improvised moment of brilliance:


His tell crops up when he’s drawn outside the ambit of the law. That’s when he starts talking like he’s “mentally retarded” and “couldn’t even be a one-person country lawyer down in Alabama.”

Take, for instance, when Sen. Kamala Harris asked a series of questions that spiraled around whether he had ever talked with anyone, and more specifically with anyone from Kasowitz, Benson & Torres, the firm run by Marc Kasowitz, President Trump’s personal lawyer, about Special Counsel Robert Mueller’s investigation into Russian meddling in the 2016 election.

Here’s what Kavanaugh said (same link as previous, starting at approx. 11:45:15, with ellipses for moments when Sen. Harris interrupted with follow-ups):

Well, it’s, uh, in the news every day, I … Uh, with other judges, I know…. Ah. … Well, I’m not remembering, but if you have something you wanna … I said I, Kazowitz? Spensen? … Well, is there a person you’re talking about?... I need to know the, um, I’m not sure I know everyone who works at that law firm. … I don’t think I, I’m not remembering but I’m happy to be refreshed or if you wanna tell me who you’re thinking of that worked … I don’t know … I’m not sure I. Do I? I’m just trying to think: do I know anyone who works at that firm? I might know. Maybe. … I would like to know the person you’re thinking of cause what if there’s … I have, I’m not going to go … I don’t know everyone who works at that law firm, Senator …. So you said Bob Mueller or, so have I ever had a discussion about Bob Mueller. I used to work in the administration with Bob Mueller. … I’m sure I’ve talked to fellow judges. … About Bob Mueller? … But … The fact that it’s ongoing. It’s a topic in the news every day. I’m. I’ve talked to. It’s. I’ve talked to fellow judges about it. It’s in our court. It’s in the courthouse in uh the District of Columbia. So I guess, uh, the answer to that is yes. So the answer is yes. … You asked me that. I need to know who works there. … Well actually I can’t. I …. Because I don’t know who works there. … Right. I’d be surprised. But I don’t know anyone, I don’t know if the. I don’t know everyone that works at that law firm. So I just want to be careful because your question was and/or, so I want to be very literal. … I’m not remembering anything like that but I wanna know a roster of people and I wanna know more. …. Well, I said I don’t remember anything like that.

And here’s what he said to Sen. Patrick Leahy, when asked about his receipt of emails from a Republican staffer who had infiltrated an online directory of more than 4,000 Democratic party documents – Leahy called that staffer a mole -- during Kavanaugh’s tenure as staff secretary for President George W. Bush (1:54:40):

I don’t recall the reference to a mole, uh, which sounds highly specific, but certainly it is common – again, the people behind ya can probably refer to this – but it’s common, I think, for everyone to talk to each other, at times, and share information. At least this was my experience, this is 20 years ago almost, where you would talk to people on the committee … I don’t re … uh … I’m not gonna rule anything out, Senator, uh, but if I did I wouldn’t have thought that anything other, I wouldn’t have thought that the literal, uh, meaning of that.

“I don’t live in a bubble,” Kavanaugh told Sen. Dianne Feinstein (49:55), when asked about Roe v. Wade and reproductive rights. “I understand—I live in the real world.”

But that’s not really true. Brett Kavanaugh’s bubble is inside the beltway, where he has lived and worked for most of his life, and is further enclosed by the rarified world of constitutional exegesis. Whenever a Senator asked what he felt, what he believed, where his passions were, Kavanaugh responded with fulsome analyses of Supreme Court cases and decisions he had issued as a judge.

I suppose that legal analysis can serve as a calming retreat from the messiness of our hyper-gesticulating world. Unfortunately, it’s all too easy to pretend that the law is inherently evenhanded and that its arc, too, bends towards justice. Because the arc only bends when judges are human beings and understand the cases before them as involving real human beings and real human consequences.

Kavanaugh’s tell emerges when he’s nudged out of his bland world of legal cycles and epicycles. That’s what seems to have happened, for instance, when Fred Guttenberg, whose daughter Jaime died in the Parkland mass shooting in February, came forward to shake his hand. Kavanaugh – whether he was ushered away or didn’t recall who Guttenberg was or simply wanted to make the most of his break – didn’t take up Guttenberg’s proffer. For sure, Guttenberg had already revealed that he was against Kavanaugh’s nomination. Both Kavanaugh and his minders undoubtedly understood that if he clasped Guttenberg’s hand, if he acknowledged Guttenberg’s loss, it would become the day’s viral image. The presence of this grieving victim threatened to wrench him out of his secure moot court bubble.

Kavanaugh’s tell comes at those moments like this, when his legal exertions fall away and the real world -- beyond the beltway and the comfortable confines of the court -- threatens to enter. It makes you wonder just what he finds so scary about life here on the outside.