The nominee was a baby-faced 41-year-old White House staffer. His chief antagonist, barely in his second Senate term, won special privileges to lead questions for Democrats. And seated behind the senator was his low-profile chief counsel known for setting his boss up with sharp questioning.
It was May 2006, and Brett M. Kavanaugh faced down Sen. Charles E. Schumer (D-N.Y.), the future minority leader whose counsel, Preet Bharara, was three years away from winning his own confirmation as U.S. attorney in Manhattan.
Two weeks later, the Senate confirmed Kavanaugh to the U.S. Court of Appeals for the District of Columbia Circuit, with just four Democrats supporting him, ending one of the most contentious nomination fights waged by the George W. Bush White House.
It took three years, an intervening bipartisan “gang” deal, and a highly unusual second hearing before the Judiciary Committee. Now 12 years later, Kavanaugh and Democrats are preparing for a much bigger clash: his Supreme Court hearings this summer. Lawmakers are scouring that showdown last decade for clues to how the federal judge handled certain questions — and which questions he simply ducked.
“Well, he wouldn’t answer questions,” Sen. Patrick J. Leahy (D-Vt.), a senior member of the Judiciary Committee, recalled last week, still upset about the outcome. “This will be a little bit different this time.”
Republicans agree it will be different. Democrats tried to paint Kavanaugh as an inexperienced political hack, who served as a junior member of the independent counsel investigation into President Clinton in the 1990s and as an aide to President Bush in the early 2000s. Republicans expect to steer the new debate toward Kavanaugh’s 12 years on the District of Columbia Circuit, predicting a mostly partisan vote that results in confirmation.
“From 2006 to now, what kind of judge has he been? He’s been what I thought he would be,” said Sen. Lindsey O. Graham (R-S.C.), a Judiciary Committee member, laughing about how the Democrats view the conservative jurist. “I bet you that he’s been what they thought he would be.”
Democrats are trying to focus their opposition on Kavanaugh’s potential to turn the court rightward as he would fill the seat of a key swing vote, retiring Justice Anthony M. Kennedy, particularly on abortion rights and the Affordable Care Act. But they are already issuing demands for emails and paperwork that Kavanaugh handled in his days working for Bush, which could be hundreds of thousands of pages or more in total documents.
Democrats contend that plenty of records from the Clinton and Obama administrations were turned over during Justice Elena Kagan’s 2010 confirmation. “Now they’ve got to do the same thing for Kavanaugh,” Leahy said, “and he was there during Guantanamo, torture and a bunch of other things.”
But Republicans and Trump advisers say that many of Kagan’s private internal writings were not given to the committee, a standard they expect to be held for Kavanaugh. Sen. John Cornyn (R-Tex.), who introduced Kavanaugh at his first committee appearance in April 2004, has asked his staff to review the judge’s confirmation process last decade to determine what sort of document production is needed now.
“I think that will be informative about the debate we’re about to have,” he said.
Schumer, as minority leader, does not serve on committees and will not take part in hearings like he did last time, but he is trying to mount a more aggressive fight now because the stakes are higher.
In the earlier hearings, Schumer stood in for Leahy as the top Democrat, apologizing in advance to Kavanaugh’s family for what they were about to watch. “Something tells me this won’t be the easiest or the most enjoyable hearing for them,” he said in 2004.
The confirmation got tangled up in the 2004 campaign, as parties traditionally halted approving lifetime judicial appointments a few months before a presidential election. By spring 2005, Democrats were filibustering a bloc of judges, and Kavanaugh was among those who would have been blocked.
Finally a bipartisan group of senators reached an accord allowing a bunch of Bush’s nominees to get confirmed but retaining the Democrats’ right to filibuster under “extraordinary circumstances.”
Kavanaugh was not mentioned specifically, but Republicans believed his nomination was not “extraordinary” and convinced enough Democrats to abide by that deal for the future Supreme Court nominee.
“He was a product of the Gang of 14,” said Graham, a member of the group.
But first Kavanaugh had to get through Schumer one more time in a second hearing more than two years after the first.
“You were involved in the impeachment of President Clinton,” Schumer said at the May 2006 hearing. “How would you have voted if you were a senator?”
Kavanaugh declined to answer, saying it was inappropriate for an investigator or prosecutor to weigh in on a jury’s verdict — in this case the House’s 1998 impeachment vote and the Senate’s acquittal of Bill Clinton.
Schumer’s fellow New York Democrat, then-Sen. Hillary Clinton, was beginning to gear up for a 2008 presidential bid and some Republicans viewed Schumer’s pit-bull work as a favor to Clinton.
Kavanaugh also declined to answer whether Bush’s top political adviser, Karl Rove, helped pick judicial nominees. And when Schumer pressed him on his personal views on abortion law, he demurred.
“I don’t think it would be appropriate for me to give a personal view,” Kavanaugh finally responded, vowing to uphold the Supreme Court precedent articulated in Roe v. Wade.
After Kavanaugh declined to discuss his views of any current Supreme Court justice, Schumer gave up.
“I do not think you have clarified any of these answers that we asked you the first time,” he said.
Two weeks later, the night before Kavanaugh won his vote, Schumer took to the Senate floor just after a young senator from Illinois, Barack Obama, finished a speech opposing a nominee for CIA director.
With Bharara seated behind him, Schumer accused Kavanaugh’s nomination of being “repayment for services rendered to the political operation of the White House.” But the “Gang of 14” deal had halted judicial filibusters so there was no way left to block Kavanaugh, who had enough votes to win.
“I wish we could because America will regret, I believe, having Mr. Kavanaugh on the court for decades to come,” Schumer said.