This post has been updated.
Supreme Court nominee Brett M. Kavanaugh has thus far avoided anything approaching a disaster — despite Democrats' best efforts.
- The declined Fred Guttenberg handshake was awkward but quickly forgotten.
- Sen. Kamala D. Harris (D-Calif.) prosecuted Kavanaugh into an awkward back-and-forth by hinting at a conversation between him and someone who works at the law firm of one of President Trump's lawyers. But it's unclear what she might actually know, and Kavanaugh didn't really commit one way or another.
- By Thursday morning, previously confidential emails in the New York Times showed Kavanaugh in 2003 argued against the idea that all legal scholars regarded Roe v. Wade as “settled law.” But as he later argued, he wasn't referring to his own views.
- And Sen. Cory Booker's (D-N.J.) dramatic, forced release of an email in which Kavanaugh discussed racial profiling showed Kavanaugh clearly saying he supported a “race-neutral” approach — despite leaving open the idea of an interim approach after 9/11.
All of that said, a story just broken by The Post's Seung Min Kim may have some legs — and require some explaining by Kavanaugh.
According to other “committee confidential” emails she obtained, Kavanaugh in 2003 was looped in on emails and discussions involving the nomination of controversial anti-Roe v. Wade Appeals Court Judge William H. Pryor Jr. Kavanaugh also appears to have interviewed Pryor for the nomination.
This despite Kavanaugh having said in his own 2004 confirmation hearings, “No, I was not involved in handling his nomination.” At another point, he said, “I am familiar generally with Mr. Pryor, but that was not one that I worked on personally."
Those are likely to be parsed pretty closely now. A December 2002 email shows Kavanaugh, then an aide in the George W. Bush White House, being asked by a fellow White House aide, “How did the Pryor interview go?” Kavanaugh responded: “call me.”
After Pryor was nominated in April 2003, Kavanaugh in June was copied on an email about a conference call to “discuss Pryor and coordinate plans and efforts.” That same day, he was BCCed on an email discussing an “Emergency Umbrella Meeting” the following day about Pryor. These exchanges came less than a week before Pryor's confirmation hearing.
The big question is exactly what “handling” and “worked on” mean in Kavanaugh's 2004 denials. The emails show Kavanaugh was definitely included on internal discussions to some degree and may have even participated in vetting Pryor. Kavanaugh may argue that he wasn't the one actually shepherding Pryor throughout the confirmation process, and that's what he meant by his denials.
Both of his denials came in response to Sen. Ted Kennedy (D-Mass.). One of Kennedy's questions made clear that it was known that Kavanaugh had recommended Pryor -- if not necessarily that he had interviewed him -- so Kavanaugh's involvement pre-nomination clearly wasn't a complete secret:
KENNEDY: When you recommended Mr. Pryor for nomination to the Eleventh Circuit, were you aware that he had made these extreme
statements? And if so, do they cause you any concern?
KAVANAUGH: Senator Kennedy, I know President Bush nominated Mr. Pryor. And Judge Gonzales, of course, chairs the judicial selection committee. That was not one of the people that was assigned to me. I am familiar generally with Mr. Pryor, but that was not one that I worked on personally.
The other was a rather jumbled question that alluded to both the vetting process and what happened after Pryor was nominated:
KENNEDY: Well, I know you are talking here about the background discussions, but once you have the nominee and you are involved in the process where he calls a case the worse abomination of constitutional law in our history, criticizes the Miranda case and refers to the Supreme Court as nine octogenarian lawyers--you are involved in the vetting process.
Whether you did anything at all about it, I gather you say that you did not.
KAVANAUGH: No, I was not involved in handling his nomination. I do know he explained that in his hearing, and I will leave it at that.
The big questions now are whether Kavanaugh was on that conference call or in that meeting a week before Pryor's confirmation and what his apparent interview with Pryor in December 2002 entailed. Kavanaugh's denials were probably broader than they should have been, at best; whether his participation constituted "handling" or "working on" Pryor's nomination is likely to be the subject of plenty of discovery and debate. If he was only involved before the nomination was actually made, it's more defensible, given Kennedy granted in his question that Kavanaugh had recommended Pryor. If Kavanaugh was participating in the final days of Pryor's confirmation, that's a much tougher sell.
Update: David Lat argues that Kavanaugh "could have been more precise" but that the context of the entire 2004 hearing makes clear he admitted peripheral involvement in Pryor's nomination.