As Hearings End, Democrats Accuse Supreme Court Nominee of Dissembling

WASHINGTON — Senate Democrats and their allies accused Judge Brett Kavanaugh on Friday of misleading the Judiciary Committee, saying he dissembled in testimony about crucial issues ranging from his views on abortion rights to his involvement in several Bush-era controversies.

But Republicans expressed confidence that none of the punches Democrats had thrown at the Supreme Court nominee had landed with sufficient force to jeopardize his confirmation.

Four days of Supreme Court confirmation hearings ended Friday the way they began, with sharply partisan charges and tension remarkable for normally staid proceedings.

In two of the strongest statements Friday, Sen. Dianne Feinstein of California, the top Democrat on the committee, said on Twitter that Kavanaugh gave answers that “were not true” when asked whether he had used “materials stolen” from committee Democrats when he was a White House lawyer under President George W. Bush. Sen. Ron Wyden, D-Ore., also using Twitter, accused the judge of lying.

“What else is he lying about?” Wyden wrote. “His views on overturning #RoevWade? Whether he was involved in Bush-era torture programs? Whether he believes Trump can pardon himself?”

But Raj Shah, a White House spokesman, dismissed the complaints by Democrats and liberals, while attacking those who made public some of Kavanaugh’s White House emails that were provided to the Judiciary Committee but marked “confidential,” meaning they were not to be disclosed. “We should put these Democratic senators under oath, because they are the ones deliberately misleading the public,” Shah said. “They’ve violated Senate rules, leaked confidential information and trafficked in conspiracy theories — all in a desperate attempt to smear Judge Kavanaugh’s stellar reputation. The good news for the country is that it has been a resounding failure.”

Shah’s final point may prove true. Senate Democratic staff members, preparing for the next phase of the fight, circulated a draft document Friday titled “Judge Kavanaugh Misled the Judiciary in 2004 and 2006 and Has Done So Once Again.”

But with no Republican senator signaling any concern, and with the party holding 51 votes in the Senate, Kavanaugh’s confirmation appeared likely, even as questions linger over documents that remain hidden from the public. “I expect that over the next months, even years, all of the relevant documents will eventually become public and we may well end up having a much clearer record in a number of the incidents that were debated very fiercely,” said Sen. Chris Coons, D-Del.

“And at that point,” he added, “Judge Kavanaugh will most likely be serving as a justice of the Supreme Court.”

Here are some of the issues that arose during the hearing, and how Kavanaugh addressed them:

Sen. Patrick J. Leahy, D-Vt., pushed Kavanaugh on his testimony, during his 2004 and 2006 appeals court confirmation hearings, that he neither knew nor suspected that a Republican Senate aide with whom he had interacted, Manuel Miranda, had infiltrated the computer files of Judiciary Committee Democrats about which of Bush’s appeals court nominees Democrats would try to block and with what tactics.

Leahy cited numerous emails that Miranda had sent Kavanaugh and a few other officials during that period, including verbatim internal Democratic talking points, a draft Democratic letter that was not yet public, “intel” about what questions Leahy was planning to ask a nominee at a coming hearing, and an email chain about meeting at Miranda’s apartment to obtain “useful info” about two other Democratic senators.

But Kavanaugh testified that none of the information he received had raised a “red flag,” suggesting he had assumed the Republican Senate aides were instead receiving information from friends on the Democratic staff. Separately, Miranda told The New York Times that he never informed Kavanaugh about the computer server.

“I am not satisfied with the answers, certainly on the stolen Manny Miranda material,” Leahy said Friday. “I think it’s fair to say that he was not forthright with me and I’m bothered by it.”

A Democratic lawyer who saw some of her work copied by Miranda concluded on Slate.com on Friday that Kavanaugh not only should not be confirmed but also should perhaps “be impeached.”

As an appeals court nominee, Kavanaugh distanced himself from significant involvement with two other Bush appeals court nominees who attracted controversy, Charles W. Pickering Sr. and William H. Pryor Jr. While he acknowledged in writing that he had “participated in discussions and meetings concerning all of the president’s judicial nominations” as a member of a judicial selection committee, he told senators that Pryor “was not one that I worked on personally” and Pickering “was not one of the judicial nominees that I was primarily handling.”

Still, emails showed he did do some work on both nominations. Among other things, Kavanaugh was invited to participate in a conference call about Pryor’s pending confirmation hearing in an email that went to a “Pryor Working Group,” and he performed a variety of tasks on the Pickering nomination, like meeting with Senate aides about him and handling a draft opinion article that supported Pickering. A colleague identified him as one of two White House lawyers who had been “much more involved in the Pickering fight.”

In August, after Democrats suggested that Kavanaugh had misled the Senate about his involvement in the Pickering nomination, his defenders said he was not the White House official assigned to “primarily” handle that one. Asked at the hearing about the Pryor nomination, Kavanaugh gave a similar answer.

Kavanaugh also faced scrutiny from Leahy over his statement to Leahy in his 2006 confirmation hearing that he had first learned about the Bush administration’s warrantless surveillance program from a December 2005 news article. Leahy had been asking what he had seen in his role as staff secretary from 2003 to 2006.

Yet a Sept. 17, 2001, email showed that Kavanaugh — then a White House lawyer, not staff secretary — asked John Yoo, a Justice Department lawyer, whether there were “any results yet” on the Fourth Amendment implications of warrantless surveillance for counterterrorism purposes. Later that day, Yoo completed a memo on a “hypothetical” warrantless wiretapping program that evolved into a more extensive memo that Yoo signed on Oct. 4, 2001, the day the program secretly started.

Insisting that his testimony had been “100 percent accurate,” Kavanaugh said that in the early days after the Sept. 11, 2001, attacks, White House lawyers worked on many things related to national security, but he had never been “read into” the existence of the surveillance program. Yoo corroborated that account.

Sen. Richard Durbin, D-Ill., grilled Kavanaugh about his testimony over his involvement in Bush administration policy for the handling of captured terrorism suspects. As an appeals court nominee, Kavanaugh turned aside questions about torture by saying that he was “not involved in the questions about the rules governing detention of combatants” and portrayed his portfolio as focusing on “civil justice issues” like terrorism insurance.

It later emerged that when the Bush administration was internally debating whether American citizens being held as “enemy combatants” should have access to lawyers, Kavanaugh had advised that Supreme Court Justice Anthony M. Kennedy would probably rule that they had a right to them. An email also showed that in September 2001, he volunteered to prepare a senior Bush administration official to testify about the government’s monitoring of conversations between federal terrorism inmates and their lawyers.

But Kavanaugh said that “my testimony then was accurate and was the truth.” He said he had understood Durbin’s question in 2006 to be about the Bush administration’s “enhanced interrogation program,” which he was not involved in. As for the signing statement about the torture ban, he said his role as staff secretary was to hand papers to the president that had been prepared by others.

On Wednesday, Kavanaugh told Feinstein that he considered the 1972 abortion rights ruling, Roe v. Wade, to be a “settled as a precedent of the Supreme Court entitled the respect under principles” of a legal doctrine that justices should not lightly reopen already decided issues.

But a 2003 White House email by Kavanaugh — which emerged into public view Thursday morning — showed that he had objected to a line in a draft opinion article stating that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.” He proposed deleting that line, writing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since court can always overrule its precedent, and three current justices on the court would do so.”

Although his email stopped short of saying what he personally believed, Democrats and abortion rights advocates portrayed that as a contradiction that suggested he was being evasive and did not believe Roe was settled. But Kavanaugh told Feinstein on Thursday that he had only meant that the line inaccurately overstated the position “of legal scholars” and reiterated that Roe was a precedent that had been reaffirmed repeatedly.