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3 Takeaways From Brett Kavanaugh’s Testimony

Americans ‘rightly’ will have ‘dimmer view of the Senate,’ Graham says

Supreme Court nominee Brett Kavanaugh testifies Wednesday before members of the Senate Judiciary Committee. (Sarah Silbiger/CQ Roll Call)
Supreme Court nominee Brett Kavanaugh testifies Wednesday before members of the Senate Judiciary Committee. (Sarah Silbiger/CQ Roll Call)

ANALYSIS — Supreme Court nominee Brett Kavanaugh spent two days jousting with Senate Democrats over his views on executive power and abortion rights. But he appeared mindful that his top job was to keep all 51 Republican senators firmly in his corner.

Democrats on the Senate Judiciary Committee rarely flustered the 12-year veteran of the U.S. Court of Appeals for the District of Columbia Circuit, and by midday Thursday several complimented his knowledge of the law and character. Republican Judiciary members began Thursday in a huddle called by Chairman Charles E. Grassley and spent the second day of questioning refuting Democrats’ criticisms of the nominee and defending him.

Over two days of testimony, the nominee declined to take clear legal stances on the landmark abortion case Roe v. Wade, whether it would be constitutional for a sitting president to be indicted, and whether he would, if confirmed, recuse himself from a potential high court case to decide if President Donald Trump could be brought up on criminal charges.

[Kavanaugh: Presidents Must Comply with Court Orders, Subpoenas]

There were fireworks, but those were almost exclusively between panel members, such as when New Jersey Democrat Cory Booker, who boasted of breaking Senate rules, dared Senate Majority Whip John Cornyn to bring up charges that could lead to his removal.

Here are three takeaways from Kavanaugh’s testimony.

Did no harm

The federal appellate judge entered the cavernous Hart Building hearing room with the necessary 51 votes to become the next associate justice of the Supreme Court. He did nothing while answering questions for two days to lose a single vote.

South Carolina GOP Sen. Lindsey Graham, a Judiciary member, on Wednesday suggested Kavanaugh might get up to 57 votes on the floor. That would mean six Democrats — likely those vulnerable in their re-election bids this fall — would join the majority Republicans. Even some Judiciary Democrats signaled confirmation is all but a done deal.

“I remember when I got my results from my bar exam, I thought to myself, ‘Well, that’ll be the last time I ever have to sit down and take an exam,’” Senate Minority Whip Richard J. Durbin said to the nominee. “So at the end of this day, this may be your last formal exam in terms of your legal career. I’m sure there’s a sense of expectation, hopefulness, and relief in that.”

Executive decisions

Sen. Sheldon Whitehouse did not hide his frustration Thursday afternoon when questioning the nominee about his views on a sitting chief executive’s legal powers when it comes to being investigated and even indicted. The Rhode Island Democrat cut off what he believed were non-answers from the judge and feverishly looked for previous cases from which to draw questions from the papers in front of him.

Later, Sen. Chris Coons noted the committee had heard “a lot” about Kavanaugh being a “good” coach of children’s sports teams and a “good” neighbor. “What I want to hear more about is an honest answer about your view of presidential power,” the Delaware Democrat said.

Watch: Booker and Cornyn Have Heated Exchange

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In short, Democrats were not convinced by Kavanaugh’s testimony that he would rule that Trump — or sitting presidents to follow — could be indicted. Even Arizona GOP Sen. Jeff Flake seemed unsure, telling the judge “there must be limits on executive power” and declaring himself “not sure about” Kavanaugh’s claims that his previous writings about a strong presidency were made after 9/11.

[Kavanaugh Denies Calling Roe v. Wade Unsettled in 2003 Email]

Grassley appeared agitated when he broke into the questioning late Thursday afternoon and asked Kavanaugh if he had ever, via a comment or wink or handshake, given any one in the White House any indication or promise on how he might rule on a case involving Trump.

The judge’s reply? “No, I have not.” 

A bad look

The first three days — the committee is slated to hear from a list of other witnesses Friday — of the confirmation hearing featured plenty of partisan bickering. And more bickering. There were some shots taken, and of course, the Booker v. Cornyn flap.

Several potential 2020 Democratic presidential candidates, including Booker, appeared eager to make a splash and generate national attention. But, for the institution of the United States Senate, members of both parties seemed to agree on one thing: This week was not a high-water mark for the so-called World’s Greatest Deliberative Body.

Sen. Orrin G. Hatch said high court confirmations “have turned into all-out war against the nominee,” adding his concern that “anyone who supports or even sits behind a nominee must also be destroyed.”

“Has our tribalism really reached that low?” the Utah Republican asked rhetorically.

Democrats harshly criticized Grassley’s decision to withhold some documents with the “committee confidential” designation, with Whitehouse saying he did not “accept its legitimacy or validity.”

Connecticut Democrat Richard Blumenthal was equally blunt, saying, “What are [Republicans] afraid we would be asking of this nominee if we had all of those documents that have been denied us in this sham and charade?”

And then there was Graham, who said succinctly: “Americans, after this hearing, will have a dimmer view of the Senate. Rightly so.”

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