With the focus on Steve Bannon being disinvited from The New Yorker, there has been a flurry of hand-wringers on both the left and right asking why we can't engage the other side in debate. The answer is because people like Bannon, are so steeped in their own self-righteousness that you can't "get them," by having them incidentally reveal who they are. The procedurals we see where lawyers and cops get people to confess their sins are similarly non-realistic - for someone to reveal who they really are, you often have to pay attention to what they're not saying.
During Judge Brett Kavanaugh's Senate hearing yesterday, California's Kamala Harris engaged in a phenomenal grilling of the potential justice that represents how someone displays their true character through rigorous questioning. A former prosecutor and Attorney General of her home state, she made her case with direct language and no legal-ese, making him look flustered and shifty in his attempts to answer her.
In her opening question, Harris asked if he had ever discussed Robert Mueller's investigation with another person, following up by asking if he had discussed it with anybody at Kasowitz, Benson and Torres, the home of Trump lawyer Marc Kasowitz:
Harris: Are you certain you’ve not had a conversation with anyone at that law firm?
Harris: ...Have you had any conversation about Robert Mueller or his investigation with anyone at that firm? Yes or no?
Kavanaugh: Is there a person you’re talking about?
Harris: I’m asking you a very direct question: yes or no?
Kavanaugh: I need to…I’m not sure I know everyone who works at that law firm.
Harris: Are you saying that with all that you remember...how can you not remember whether or not you had a conversation about Robert Mueller or his investigation with anyone at that law firm?
Kavanaugh: I’m…just trying to think…do I know anyone who works at that firm?
This went on for nearly 10 minutes, with Harris repeating her question upwards of 15 times, and he only admitted to speaking with "fellow judges" about it. Although he never said whether or not he'd spoken of it with Trump's lawyers, Harris succeeded in making Kavanaugh look like he had something to hide - something which can be more important to a jury, whether public or court-ordered, in establishing a witness or defendant's reliability. She even said as much herself when she told him, "I think you're thinking of someone and you don't want to tell us."
She then moved on to the next question, concerning president Trump's statements following Charlottesville:
Harris: Do you believe there was blame on both sides?
Kavanaugh: ...One of the principles I've articulated throughout this hearing is the independence of the judiciary--
Harris: I'd appreciate if you answered the question.
Kavanaugh: ...One of the things judges do [is]...stay out of commenting on current events because it risks confusion about what our rule is. We are judges who decide cases...we stay out of political controversy--
Harris: Are you saying that it's too difficult a question, or...are you saying you cannot answer that pretty simple question?
Kavanaugh: I'm saying the principle of the independence of the judiciary means that I can't insert myself into politics...
Kavanaugh never directly answered this question either, asserting the "independence of the judiciary" multiple times. But Harris planted another question in the minds of viewers: can this man take a position on an issue with stark right and wrong side - especially given Bob Woodward's revelation that Trump thinks his walk-back of those comments was "the biggest fucking mistake I've made"? By refusing to answer her question, he made himself look cowardly.
Speaking for all concerned about the future of Roe v. Wade if he is confirmed, Harris asked Kavanaugh if he believed that the right to privacy includes a woman's right to an abortion. Kavanaugh used the "Ginsburg Rule" to get out of it - a ploy named for Ruth Bader Ginsburg that conservatives cite, saying that potential justices must avoid hinting how they might vote if confirmed. The problem is, Ginsburg did tip her hat when she spoke of Roe during her hearing, a quote Harris cited where he talked about a woman's right to control her body. Kavanaugh said she was speaking of something she had written earlier before her hearing, which led Harris in for the kill:
Harris: I’m glad you mentioned that Justice Ginsburg had written about it before because you also have written about Roe, when you praised Justice Rehnquist’s Roe dissent. So in that way, you and Justice Ginsburg are actually quite similar. You both previously had written about Roe. So my question is, do you agree with her statement, or in the alternative, can you respond to the question of whether you believe a right to privacy protects a woman’s choice to terminate her pregnancy?
Kavanaugh: I have not articulated a position on that and consistent with the principle articulated, the nominee precedent that I feel duty bound to follow as a matter of judiciary independence...
Harris: Can you think of any laws that give government the power to make decisions about the male body?
Kavanaugh: Um…I’m happy to answer a more specific question.
Harris: Male vs. female?
Kavanaugh: There are, um…medical procedures...
Harris: Can you think of any laws that give the government the power to make decisions about the male body?
Kavanaugh: I’m not, I’m not thinking of any right now, Senator.
Here, she exposed the hypocrisy that men like Kavanaugh invoke when they talk about Roe: they would not rule on similar laws discriminating what a man can do with his body, but are too timid to express an opinion as to what a woman can do with hers. When she moved to the subject of voting rights, particularly with regards to the aftermath of Shelby v. Holder, he was also less than forthcoming:
Harris: Are you aware that within weeks of the Supreme Court’s ruling, Republican legislators in North Carolina rushed through a laundry list of voter restrictions, restrictions which disproportionately disenfranchised racial minorities? And it’s just a yes or no question. Are you aware of that?
Kavanaugh: Uh…I recall reading about efforts in the aftermath...
Harris: are you aware that Republicans in Texas, Alabama, Misssippi, Georgia, and Florida have also implemented new voting restrictions…again disproportionately disenfranchising minority voters?
Kavanaugh: Well...I’m not aware of the specifics of all that, but I do follow election law blogs and election law updates to keep generally aware of developments in the election law area…
Before closing, Harris asked Kavanaugh if he sincerely meant what he said when he claimed of Trump, "No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination," or if someone told him to say it. Flustered, he gave a word salad of an answer where he said he wanted to pay a sincere compliment to the president and his staff for their thorough process, but given the lack of transparency on his records, and the fact that he was pushed by the Heritage Foundation, he made it seem like the line was fed to him.
It's become popular on Twitter to dismiss Harris as a "cop," but that does a disservice to her skills as a prosecutor. She didn't attempt to "get" Kavanaugh, the way people believe you can "get" someone like Steve Bannon. Instead, by asking him questions he refused to answer honestly, she made Kavanaugh look like a starstruck mole, and if the Senate rejects his nomination, it will be in large part because of her performance.
The full questioning can be found here: