What does the word “primarily” mean? If you look it up in a dictionary, the definition is plain enough. Merriam-Webster says it means “for the most part.” Dictionary.com’s definition is even more helpful, providing a string of synonyms: “essentially; mostly; chiefly; principally.”
Why does this matter? Because in the desperate effort to find something to derail the Brett Kavanaugh nomination, Democrats have moved from credit cards and Nationals tickets to his testimony about the extent of his involvement in the early-2000s nomination of Judge Charles Pickering to the United States Court of Appeals for the Fifth Circuit.
Pickering’s was one of the most intense confirmation battles of the Bush administration. He was nominated and blocked in committee, renominated and filibustered, and then given a recess appointment, ultimately serving as an appeals-court judge for most of 2004. Later, when Senate Democrats questioned Kavanaugh about his knowledge of a specific event in the Pickering fight during Kavanaugh’s confirmation hearing for the D.C. Circuit, he said, “This was not one of the judicial nominees that I was primarily handling.”
In written testimony, he indicated that he “participated in discussions and meetings concerning all of the president’s judicial nominees” but did not highlight his work for Pickering.
Democrats are now seizing on this testimony, and they’ve taken their complaint to the New York Times. The claim? That Kavanaugh may have misled the Senate, a serious charge:
Testifying under oath before the Judiciary Committee in 2006, Brett Kavanaugh downplayed his role in shepherding the Pickering nomination through the Senate, but the limited documents from Kavanaugh’s time in the White House Counsel’s Office that Chairman Grassley has made public show that he led critical aspects,” said Senator Chuck Schumer of New York, the minority leader. The files, he said, raise “serious questions about whether Kavanaugh misled the Senate.
So, what’s the support for this claim? A series of emails that the Times characterizes like this:
Many of the emails showing glimpses of Judge Kavanaugh’s involvement with the Pickering nomination were minor, such as circulating articles or remarks by public officials related to him.
Still, when a room was being reserved for a Pickering event, it was Judge Kavanaugh who was consulted. When the White House press office needed materials about Judge Pickering, it was Judge Kavanaugh who asked the Justice Department for the files and relayed them. When a senator’s chief of staff was coming to the White House to discuss Judge Pickering and another nominee, it was Judge Kavanaugh who planned to meet with her.
Who knew that booking conference rooms was evidence that you were “primarily” handling a key appeals-court nominee? Who knew that relaying files to the press office was evidence of leadership in a crucial political fight?
I’d urge you to read the entire Times article, plus all the emails. As someone who’s spent more than my fair share of time on large teams of lawyers, I find that Kavanaugh’s work bears all the hallmarks of a minor player. Leaders aren’t routinely forwarding news clippings and booking rooms.
Also note that there is no indication at all that the Times reached out to one of the key players in this whole drama: Judge Pickering. The Times got comment from Chuck Schumer and Dianne Feinstein, but not from a key witness.
I’m happy to fill that gap. I know Judge Pickering well. He’s on the board of the Alliance Defending Freedom, where I was once a senior counsel, and we’ve met many times at ADF events, where I often speak. So I picked up the phone and called him.
First, he told me that no one from the Times tried to contact him before it ran with the story. Next, he told me that he hadn’t even heard of Brett Kavanaugh until Kavanaugh was nominated for the D.C. Circuit. He met with various lawyers at the White House, but he doesn’t remember meeting or interacting with Kavanaugh even once.
Finally, I asked him whom he did remember working with during the confirmation fight. He immediately recalled help from Noel Francisco at the White House (currently solicitor general), Viet Dinh at the Department of Justice, and key members of then-senator Jeff Sessions’s staff. He reaffirmed to me the statement he gave the White House this morning: “While I worked with attorneys in the White House Counsel’s office, I cannot recall a single interaction with Brett Kavanaugh about my judicial nomination. I do not even remember knowing his name at the time. His 2006 testimony is accurate.”
It would be curious indeed if the nominee at the center of a political battle that was making national headlines (including in the Times) didn’t know the White House lawyer who was “primarily handling” the fight of his judicial life.
One suspects the Democrats know they’re playing a weak hand, including with this attack. Note the sleight-of-hand in Senator Feinstein’s quote: “Some of the narrow set of documents from Kavanaugh’s time in the White House that we’ve seen and are public show that he led on key parts of the Charles Pickering nomination, which he denied.” Wait. So is the inquiry about the nomination as a whole or just “key parts”? And what is a “key part”? Reserving rooms?
The bottom line is that Brett Kavanaugh may well be one of the most qualified jurists ever nominated for the High Court. He’s also previously vetted, with one of the largest paper trails of any nominee in recent memory. And this is the controversy of the day?
Words mean things. “Primarily handling” does not mean “somewhat involved in.” The judge at the center of the Bush-era storm doesn’t even remember Kavanaugh. The email trail shows that he was a bit player in a much larger drama. The rest of the available evidence confirms that he did not mislead the Senate. Once again, the Democrats have taken their swing at an outstanding nominee. Once again, they’ve missed.