Kavanaugh Senate confirmation shows fireworks

Senate confirmations are less about learning a nominee’s positions on issues, but instead, reflect a rhythmic and theatrical dance that is more reminiscent of a tribal ritual in a mythical country, rather than the United States, where prescribed movements and incantations, are repeated, and this current one with Supreme Court nominee Brett Kavanaugh seems destined to stay the course.

With the imprimatur of no less than former Secretary of State Condoleezza Rice, elegant, as always, in black crepe and pearls, but uncharacteristically using a girlish tone, as she anxiously described him as “really, really smart,” it seemed that the stage was set and the actors in their place, but some of the actors were not in character.

Certainly, with President Trump’s approval ratings in the tank --- a 60 percent disapproval rate -- he needs a win going into the midterms, to sustain his base, and hope to thwart the Democrats in their attempt to take the House; but, more importantly to keep a reactionary, and changed GOP in power, even when they are not, for decades to come.

As in Kabuki theater, there were also costumed protestors, like the women in Margaret Atwood’s famed book, “The Handmaid's Tale” - and their red robes and white bonnets only increased the air of theatricality --- but their silence was broken by the Greek chorus of keening women protesting, livid at the idea of a nominee who is backed by anti-abortion activists, whose very real goal is to repeal Roe v. Wade, that legalized abortion in the US.

The senior senator from California, Dianne Feinstein tried earnestly to get his views on Roe v. Wade; she said "Do you believe it is correct law?"

Kavanaugh replied: "I said that it's settled as a precedent of the Supreme Court entitled to respect ... it has been reaffirmed many times."

We have seen this before, from other nominees, most recently Neil Gorsuch, but this time, rather than leave that answer alone, he added that  “he understands Feinstein's point of view that women should have a right to legal abortion, though he did not say he agreed with that view,” reported ABC News.

"I understand how passionate and how deeply people feel about this issue. I understand the importance of the issue. I understand the importance that people attach to the Roe versus Wade decision, to the Planned Parenthood versus Casey decision. I don't live in a bubble. I understand, I live in the real world. I understand the importance of the issue," he said, but without saying anything at all.

One clue was citing Casey v. Planned Parenthood, and that there could be add-ons that don’t unduly restrict a woman’s right to choose --- but some other states have -- including parental notification - which on the surface meet the test of no undue restriction, but in reality do not.

Considered a staunch Roman Catholic, his views seemed defined not only by dogma, with this no-answer, but how he, along with others, say Justice Clarence Thomas, another Catholic, might, in the future, nibble at the edges of Roe in later decisions.

Kavanaugh avoided nearly every question from Democrats as they tried in vain to get responses to the most controversial statements, previously heard --- such as his assertion that a sitting president cannot be subpoenaed --- and in one notable exchange, “he declined to answer Feinstein's question about whether a sitting president can be required to respond to a subpoena, saying any answer would violate the principle that nominees shouldn't give views on hypothetical cases.”

"I can't give you an answer on that hypothetical question," he replied.

In another highlight she asked him “about his frequently cited comments that a president should not be investigated on criminal charges while in office.”

What he did say, perhaps accurately, but no less controversial, and what many might call “fudging” was that he “proposed ideas for Congress to consider in a 2009 law review article but ‘"they were not my constitutional views"’ and that he has never taken a position on what the Constitution says about investigating a sitting president or whether a sitting president can be indicted.”

“Sen. Chris Coons, D-Delaware, pushed Kavanaugh on comments he made during the Ken Starr investigation in 1998. Coons quoted comments Kavanaugh made on a panel where he reportedly said no one should investigate possible criminal conduct by a sitting president and wrote that a Congressional inquiry should take precedence over a criminal investigation.

But Kavanaugh said his comments were misconstrued and that he actually argued in favor of independent counsels in a law review article the same year. He also said that he's never taken a position on whether a sitting president can be investigated or indicted and that it's actually the Justice Department position that a president can't be indicted while in office.” ABC reported.

"I have never taken a position on indicting or investigating a sitting president," Kavanaugh replied deftly.

Not to be fobbed off, Coons said: "Frankly, judge, your views about executive power that you have detailed, what you like to overturn and what limits you think there should be really leaves me concerned. It's because of our current context, because of the environment that we're operating in.”

The Richelieu behind Kavanaugh as well as Gorsuch, Chief Justice John Roberts, as well as Sam Alito is Leonard Leo of the Federalist Society, a group, according to Huffington Post, has been behind all of the above people, as well as advised George W. Bush, on his court selections, and membership, even peripheral attendance at social events is de rigueur for conservative judges.

The National Law Journal, noted on Wednesday, that Kavanaugh was also firmly pressed “about what role, if any, the conservative Federalist Society played in his nomination,” and “Sen. Sheldon Whitehouse, D-Rhode Island, questioned Kavanaugh about comments White House Counsel Donald McGahn made in November that rejected the contention the White House has “outsourced” judge-picking to the Federalist Society.”

“I’ve been a member of the Federalist Society since law school—still am,” McGahn said then. “So frankly, it seems like it’s been in-sourced,” was the smoking gun, that began the question.

“Kavanaugh couldn’t answer questions about what McGahn meant by the remarks and he said he did not know the “specifics” of the role played by Leonard Leo, executive vice president of the Federalist Society and now an adviser to the president on judicial nominations.

“President Trump made the nomination. I know he spent a lot of time in those 12 days on this issue. I also know Mr. McGahn was directly involved with me.”

“Leo, executive vice president of The Federalist Society, a national organization of conservative lawyers, has played a central role in the selection and confirmation of three Supreme Court justices: John Roberts, Samuel Alito and Neil Gorsuch. And on Wednesday, Leo announced that he’s taking leave from his job, effective immediately, to personally advise Trump on a replacement for retiring Justice Anthony Kennedy, reported Huffington Post.

“It’s incredible,” said Carl Tobias, a law professor at Virginia’s University of Richmond and an expert on judicial nominations. “Certainly, he’s had an outsize influence for any one person. I know President George W. Bush relied on him a fair amount for two nominees, and in this administration, I don’t think there’s ever been anything quite like it.”

Taking it even further was Carrie Severino, chief counsel at Judicial Crisis Network, a conservative judicial advocacy group, who said, “We’re at the point where almost the entire Supreme Court is something Leonard Leo was active in in this process,” laughed Severino. “There isn’t anyone who knows the conservative legal movement as well as him.”

For progressives, this outsourcing has dangerous consequences: “Selecting nominees from The Federalist Society ensures that the right will cement the hold they have on the judiciary for the next several decades,” said Nan Aron, president of Alliance for Justice, a left-leaning judicial advocacy group.

“What they have in common is an exceptional hostility to the progress that’s been made in this country since the New Deal, whether that’s to workers, civil rights litigants, women, consumers or people who care about the environment,” Aron said. “Nominees being confirmed by the Republican Senate today would have been deemed unqualified even under President George W. Bush because of their extremism.”

Putting aside extremism for the moment was Sen. Corey Booker who continued to press the judge on several key areas of concern --- one of the most pressing, was the civil rights of all voters, but especially black voters, and specifically a racist email that was sent to him by a South Carolina lawmaker, who felt that rewarding black voters with a $100 bill would work, as in old, and near vulgar terminology, and that Voter ID laws in that state was “systematic disenfranchisement” for black voters. In his response, the judge concurred.

To that question of concern, Kavanaugh gave a long and exhaustive report of how he helped black law students gain clerkships, without once answering the senator’s question.

All that was missing here was the stage whisper of the court jester to make this bit of theatrical, and planned obfuscation, part and parcel of a performance, albeit planned, to bypass legitimate questions, and have him confirmed.

Also, on Wednesday, the candidate refused to answer a direct question, by Harris, on whether he had ever had a conversation with special counsel Bob Mueller with anyone --- probing to see if he was part of the efforts to silence the investigation, or at least to belittle it and also if he was counsel to the king --- ergo Trump.

“After answering "with other judges I know," Kavanaugh was asked if he had discussed the probe with anyone who works at Kasowitz Benson Torres, the New York law firm founded by President Donald Trump's personal attorney Marc Kasowitz.

Kavanaugh replied that he's unsure he knows everyone who works at that law firm and asked the senator if there was a specific person she was talking about.”

Looking red faced, and flustered, Kavanaugh stumbled and pled for a list of names of those who worked at the firm, an obvious diversionary tactic --- not to be outdone, Harris, a former prosecutor, said:

"You've been speaking for almost eight hours to this committee about all sorts of things you remember," Harris said. "How can you not remember whether or not you had a conversation about Robert Mueller or his investigation with anyone at that law firm?"

Later, Kavanagh said he would like to know the specific person Harris was thinking of.

Harris fired back, "I think you are thinking of someone, and you don't want to tell us."

After more back and forth delay tactics, she had to concede that he was not going to answer the question.

CNN reported on Thursday that “Kavanaugh responded to the questioning again on Thursday saying he hasn't had any "inappropriate" conversations about the special counsel's Russia investigation "with anyone," adding he doesn't "recall any conversations of that kind with anyone."

"I don't recall any conversations of that kind with anyone at that law firm," Kavanaugh said during the third day of hearings. "I haven't had any inappropriate conversations about that investigation with anyone."

The law firm also issued a statement to CNN on Thursday, saying, "There have been no discussions regarding Robert Mueller's investigation between Judge Kavanaugh and anyone at our firm."

Harris pushed back against the law firm's denial, telling CNN, "They're not under oath."

Asked if she didn't believe them, Harris said again, "They're not under oath. The question was asked under oath."

With the third day of testimony concluding, it is safe to see that with the usual cast from Capitol Hill there was some jousting with new entries, like Harris, which shows that the Democrats are not going either slowly, or passively, with the confirmation of Brett Kavanaugh.