Bench Memos

Law & the Courts

Refuting Anti-Kavanaugh Smears—Pickering Nomination

Okay, now we’ve reached the bottom of the barrel, the fifth and last item that this Mother Jones article presents—and lots of folks on the Left mindlessly trumpet—as a supposed instance in which Judge Kavanaugh “appears to have lied to Congress while under oath.” Get ready: Mother Jones complains that Kavanaugh testified at his 2006 hearing that Charles Pickering “was not one of the judicial nominees that I was primarily handling.” According to Mother Jones, “new emails show [Kavanaugh] may have been more involved than he let on.”

David French and Carrie Severino demolished this charge a month ago, so I’ll be brief.

As I pointed out in my post on the Pryor nomination, Kavanaugh had explained at his 2004 hearing (and in post-hearing responses) that he had lead responsibility on some judicial nominations and that he “participated in discussions and meetings” on all others. So his testimony in 2006 that Pickering “was not one of the judicial nominees that I was primarily handling” (hearing transcript, p. 38) means that he did not have lead responsibility on that nomination. That is a fact that no one contests. Indeed, as David French reports, Pickering says he “cannot recall a single interaction with Brett Kavanaugh about my judicial nomination” and does “not even remember knowing his name at the time.”

Kavanaugh’s statement that he was not “primarily handling” the Pickering nomination implies nothing about whatever other participation he might have had in it. As David and Carrie discuss in extensive detail that I won’t repeat, the various minor actions reflected in the “new emails”—circulating articles, booking a conference room, responding to a request from the White House press office—are entirely compatible with the fact that someone else in the White House counsel’s office had the lead role on the Pickering nomination.

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