Supreme Court nominee Brett Kavanaugh released his written responses to senators’ questions Wednesday night, and citizens hoping for any more clarity about his judicial views are in for a long, unsatisfying read. By Adobe Acrobat’s count, Kavanaugh used the exact phrase “Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way” 54 times, with “cannot provide my views” coming in a close second at 53, and “I do not recall” bringing up the rear, with 40 separate uses. There are also pretty clear differences in how he responds to Senators by party: Republican Jeff Flake asked a single question and got a two-page essay that begins “No one is above the law,” and ends “I have never and will never bow to public pressure … ” which he might as well have delivered Patton-style. Democrat Dianne Feinstein, on the other hand, gets a Nabokovian scavenger hunt, with answers like “Please see my response to question 18,” where question 18’s answer is “I discussed these issues at length in the hearing.” When you reassemble it, the non-answers to direct questions are striking. For example, here’s a very specific Feinstein question about Kavanaugh’s role in the investigation into Vince Foster, complete with a citation to jog his memory:
Webster Hubbell has stated that Office of Independent Counsel attorneys investigating the death of Vince Foster asked him a number of sexual questions in early 1995, including specifically asking if Hillary Clinton and Vince Foster had engaged in an affair. (Jane Mayer, Dept. of Inquiring Minds: The Webster Hubbell investigation: Was it about sex? The New Yorker (Aug. 9, 1999)). Did you participate in the questioning [of] Mr. Hubbell? If so, what was your role? If you were present, did you object to any of the questions that were asked?
And here’s Kavanaugh’s response to a yes or no question about whether he was present at a specific questioning session, once you track down his response to Question 49.a:
The decisions regarding the Vince Foster investigation were ultimately made by Judge Starr. Given the persistent public questions about the causes of Mr. Foster’s death, Judge Starr stated that it was important to thoroughly investigate the matter and provide a definitive conclusion. That conclusion was ultimately that Mr. Foster committed suicide. Our report on the Foster death has stood the test of time.
It’s hard to write prose that is simultaneously comically suspicious and deathly boring, but Kavanaugh pulled it off. There’s also a cavalcade of low-end “literally true but misleading in context” non-answers like this one, which appears in various forms over and over again, and seems designed to leave the impression that Kavanaugh does not remember the specific events he’s being asked about without actually saying so:
While working in the White House Counsel’s Office, I worked on, provided advice on, or was otherwise involved in many different issues, including those involving legislation, litigation, nominations, and policy, among others. I do not recall my work or involvement in all of these matters, nor do I have specific recollection of every discussion in which I took part during my years at the White House.
Then there’s this stock sentence, which is factually true but says literally nothing about Kavanaugh or his views, which he repeats whenever he is asked about LGBTQ issues, without saying whether or not he agrees with the sentiment:
The Supreme Court stated last term in Masterpiece Cakeshop that the days of treating gay and lesbian Americans or gay and lesbian couples as second-class citizens or inferior in dignity and worth are over.
And then there’s his amazing recursive formulation when he’s asked about overturning precedents: each case is “a precedent of the Supreme Court entitled to the respect due under the law of precedent.” How much is that, exactly? But past all the toddler-level con artistry and insults to the readers’ intelligence, there is some new information here on three topics: his encounter at the hearings with Fred Guttenberg, his relationship with disgraced judge Alex Koszinski, and his high-flying finances, which included a credit card debt of between $60,000 and $200,000 that vanished entirely in a year. Here’s what he had to say.
Fred Guttenberg
During the hearing, Kavanaugh refused to shake hands with Fred Guttenberg, whose daughter was murdered in the Parkland mass shooting. He provided a detailed explanation of his actions:
As I was leaving the hearing room for a recess last Tuesday, a man behind me yelled my name, approached me from behind, and touched my arm. It had been a chaotic morning with a large number of protestors in the hearing room. As the break began, the room remained noisy and crowded. When I turned and did not recognize the man, I assumed he was a protestor. In a split second, my security detail intervened and ushered me out of the hearing room.
In that split second, I unfortunately did not realize that the man was the father of a shooting victim from Parkland, Florida. Mr. Guttenberg has suffered an incalculable loss. If I had known who he was, I would have shaken his hand, talked to him, and expressed my sympathy. And I would have listened to him.
Kavanaugh also denied that he had asked that Guttenberg be removed, as Guttenberg claimed on CNN after the incident:
No one acted at my request. If someone purported to act on my behalf, they did so without my knowledge and contrary to my wishes.
Judge Kozinski
As Dahlia Lithwick wrote, Kavanaugh’s knowledge of his former boss and close associate’s sexual misconduct—and how he reacted to it, if he was aware—would provide an important insight into how he might conduct himself on the Supreme Court. Unfortunately, he doesn’t remember. Asked by Senator Patrick Leahy to go through his emails and files and definitively say whether Kozinski sent him “inappropriate emails of a sexual nature,” Kavanaugh opted to rely on his memory instead:
I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski.
Kavanaugh elaborated a little more in response to a question from Senator Christopher Coons, saying he didn’t remember Kozinski ever “us[ing] demeaning language of a sexual nature,” but that he definitively “never saw him sexually harass a law clerk or candidate.” And he gave Senator Kamala Harris a flat “no” when asked if Kozinski had ever shared pornography with him. But don’t expect Kavanaugh to investigate the matter any further: Coons’ questions drew this hilariously non-responsive exchange:
It has been reported that Judge Kozinski had a sexually explicit email list, called the Easy Rider Gag List. Did you ever receive an email from this list? If it is necessary to refresh your recollection, please review your email accounts before answering this question.
RESPONSE: I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski.
Have you conducted a search of your email accounts and/or correspondence with Judge Kozinski in an effort to provide an accurate response to the preceding question? If not, why not?
RESPONSE: I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski.
Kavanaugh’s Debt
Ben Mathis-Lilley was unhappy senators didn’t ask Kavanaugh for more detail about his finances—he went from carrying between $60,000 and $200,000 on credit cards in 2016 to being debt-free except for his mortgage in 2017—and was interested in knowing more about an email in which he apologized for “growing aggressive after blowing a game of dice.” In response to a question from Senator Sheldon Whitehouse, Kavanaugh gave a two-page overview of his finances, the gist of which was that his debt came from home improvements and buying baseball tickets, and he was able to pay it off thanks to some combination of pay raises, his wife’s return to the workforce, and possibly financial gifts from family members, which are exempt from disclosure:
Our annual income and financial worth substantially increased in the last few years as a result of a significant annual salary increase for federal judges; a substantial back pay award in the wake of class litigation over pay for the Federal Judiciary; and my wife’s return to the paid workforce following the many years that she took off from paid work in order to stay with and care for our daughters. The back pay award was excluded from disclosure on my previous financial disclosure report based on the Filing Instructions for Judicial Officers and Employees, which excludes income from the Federal Government. We have not received financial gifts other than from our family which are excluded from disclosure in judicial financial disclosure reports. Nor have we received other kinds of gifts from anyone outside of our family, apart from ordinary non-reportable gifts related to, for example, birthdays, Christmas, or personal hospitality. On the 2018 financial disclosure report, I correctly listed “exempt” for gifts and reimbursements because those are the explicit instructions in the 2018 Filing Instructions for Judicial Officers and Employees.
As for gambling, Kavanaugh says he’s never had gambling debt or played fantasy sports, and by the way, did you know that houses require upkeep?
Over the years, we have sunk a decent amount of money into our home for sometimes unanticipated repairs and improvements. As many homeowners probably appreciate, the list sometimes seems to never end, and for us it has included over the years: replacing the heating and air conditioning system and air conditioning units, replacing the water heater, painting and repairing the full exterior of the house, painting the interior of the house, replacing the porch flooring on the front and side porches with composite wood, gutter repairs, roof repairs, new refrigerator, new oven, ceiling leaks, ongoing flooding in the basement, waterproofing the basement, mold removal in the basement, drainage work because of excess water outside the house that was running into the neighbor’s property, fence repair, and so on. Maintaining a house, especially an old house like ours, can be expensive. I have not had gambling debts or participated in “fantasy” leagues.
As for the baseball tickets themselves, they were all above board and, like home repairs, very relatable, even to people who’ve never had between $60,000 and $200,000 in credit card debt:
As is typical with baseball season tickets, I had a group of old friends who would split games with me. We would usually divide the tickets in a “ticket draft” at my house. Everyone in the group paid me for their tickets based on the cost of the tickets, to the dollar. No one overpaid or underpaid me for tickets. No loans were given in either direction.
Kavanaugh also specified that the dice game in his email “was not a game with monetary stakes,” said he had never sought treatment for a gambling addiction, and, in response to very specific question about whether or not he had “accrued gambling debt in the State of New Jersey,” said he’d occasionally played low-stakes blackjack there in his twenties but never accrued gambling debt.
Except for those three issues, Kavanaugh didn’t seem to provide substantive or significant answers for much of anything, besides referring senators to the texts of his past rulings. In a sense, it’s a great stylistic accomplishment: 263 pages of sound and fury signifying nothing, hold the sound, hold the fury. Happy reading!
