Our D.C. Bureau Clock was not on Blumenthal’s side
WASHINGTON — As a prosecutor, Richard Blumenthal would have had virtually unlimited time and license to hammer or wheedle witnesses.
But as a U.S. senator, Blumenthal found himself up against structural constraints in the Supreme Court confirmation hearings last week for Brett Kavanaugh: the clock and a witness as well-schooled in the law as he is.
In three rounds of questioning Kavanaugh, Blumenthal was constrained by 30- and then 20-minute limits on his questions, as well as by Kavanaugh’s propensity for long-winded, legalistic answers — the confirmation-hearing equivalent of a football team playing out the clock with leisurely huddles and lots of rushing.
“You are becoming very good; you’re learning to filibuster,” Sen. Dianne Feinstein, D-Calif., told Kavanaugh on Wednesday, the first day of the Senate Judiciary Committee’s Q&A rounds.
Blumenthal had to hurry along, often hurling a new question before Kavanaugh had a chance to finish the previous one.
“I apologize for interrupting you, but my time is limited,” Blumenthal told Kavanaugh at one point.
But ultimately, the theatrics of Supreme Court confirmation are unlike those Blumenthal encountered as U.S. attorney for Connecticut and later as state attorney general.
In a controversial Supreme Court confirmation hearing in which the object is to sway public opinion, “it’s probably as effective (for watchers) to yield information from the question as it is from the answer,” said Richard Kay, a law professor emeritus at the University of Connecticut.
For Kavanaugh, Blumenthal and arguably the nation, the stakes could not be higher. Blumenthal has said his vote on Kavanaugh’s confirmation may be the most consequential of his Senate career.
President Trump nominated Kavanaugh, a 53-year-old D.C. federal appeals court judge, off a list of home-run conservatives compiled by the hard-right Heritage Foundation and Federalist Society.
If confirmed, Kavanaugh could help solidify a five-vote conservative majority on the Supreme Court for the first time in decades.
Trump had said he would only nominate jurists guaranteed to join other conservatives in overturning Roe v. Wade — the court’s 1973 abortion precedent and a long-standing target of the conservative legal and political world.
Thus began Kavanaugh’s long march toward confirmation, representing a possible fifth vote to ditch Roe v. Wade and yield other wins for conservatives, including an overturn of the Affordable Care Act — Obamacare.
Also, Blumenthal and other Democrats point to past Kavanaugh statements on expansive presidential power to argue what they see as the danger of him perhaps one day sitting in judgment of Trump, who faces possible obstruction accusations in the Russia probe of special counsel Robert Mueller.
At the hearings, Blumenthal tried to elicit a pledge from Kavanaugh to recuse himself, should a U.S. v. Trump case come before him. Kavanaugh declined to give that commitment.
As a liberal Democrat and Judiciary member who declared his opposition just minutes after Trump nominated Kavanaugh on July 9, Blumenthal has been in the forefront of plotting strategy to defeat him. And his rapid-fire prosecutorial style of asking questions was very much in evidence during his rounds of questioning Kavanaugh last week.
But with his time limited and a nominee well-versed in the art of saying a little but not too much, Blumenthal was not able to land many solid blows.
The 30-minute (and then 20-minute) format forced him to jump from topic to topic at dizzying speed, often before Kavanaugh had a full chance to answer.
But for a television audience, rapid-fire likely was more effective than slow and ponderous prosecutorial-style grilling.
“If they did a much more extended examination and discussion of these issues, nobody would watch,” said Kay.
On Wednesday, Blumenthal started with the unsuccessful effort to elicit a recusal pledge, then pivoted to a D.C. appeals court case in which Kavanaugh voted against giving a pregnant, undocumented immigrant teen in detention immediate access to an abortion.
Then he switched to questions about Obamacare and a Texas case challenging the health-care law’s guarantee of insurance coverage for those with pre-existing conditions. Blumenthal finished with questions on Kavanaugh’s views on gun rights and the Second Amendment.
Questions and answers in all three rounds were filled with head-spinning references to court precedents, and Kavanaugh’s positions on cases that came before him as an appellate judge —dissents, concurrences and majority opinions. Sometimes it appeared as though Blumenthal and Kavanaugh were speaking in a code of their own.
If Blumenthal ruffled Kavanaugh’s feathers at all, it might have been in an exchange over the pregnant teen case, in which Kavanaugh was a dissenter.
Although Kavanaugh has stated explicitly that Roe v. Wade is “settled law,” Blumenthal pointed out that Kavanaugh in his dissent referred to the Roe decision as “existing” Supreme Court precedent.
“It’s a little bit like somebody introducing his wife to you as ‘my current wife’ — you might not expect that wife to be around for all that long,” Blumenthal said.
And also, Blumenthal said, Kavanaugh’s use of the term “abortion on demand” in the dissent was “a code word in the anti-choice community,” meant to signal Kavanaugh is an abortion opponent.
Blumenthal pointed out that prior to his dissent in the case of the pregnant teen, Kavanaugh was not on Trump’s list. But after it, he was.
Kavanaugh’s words in the dissent, Blumenthal insisted, were his “bumper stickers” to get on Trump’s list.
Kavanaugh demurred, insisting his dissent was not about the constitutional right to abortion conferred in Roe but rather the issue of parental consent that the high-court permitted in a subsequent opinion.
Blumenthal and other Democrats also tried to pin Kavanaugh down on an email he wrote while on the White House staff of President George W. Bush, in which he pointed out that Roe might not be “settled precedent” forever.
It is unlikely any of these punches were enough to knock Kavanaugh out of the ring. But two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, have said they would vote against Kavanaugh if they thought he might be a vote to overturn Roe.
After the hearings, neither seemed disturbed over Kavanaugh’s performance. And neither said they were leaning against voting for his confirmation.
The votes of all Republican senators for Kavanaugh would clinch his confirmation. Defections would have to be offset by “yes” votes of Democrats in states won by President Donald Trump in 2016. Three of them voted last year to confirm Trump’s first Supreme Court pick, Justice Neil Gorsuch.