Bench Memos

Law & the Courts

Refuting Anti-Kavanaugh Smears—Pryor Nomination

The fourth item in the Left’s litany of lies (as presented in this Mother Jones article) is the claim that Judge Kavanaugh testified untruthfully at his 2004 confirmation hearing about his role in the judicial nomination of William Pryor. In support of this charge, Senator Leahy contends that Kavanaugh “testified—repeatedly—that he ‘was not involved in handling his [Pryor’s] nomination.’” But it is Senator Leahy who is being deceptive—and outrageously so.

At his 2004 hearing (full transcript here), Kavanaugh testified that William Pryor “was not one of the people that was assigned to me” (p. 84). When asked whether he was “involved in any of the vetting” of Pryor, Kavanaugh stated “the way the work is divvied up, that wasn’t one of the ones I”—only to be interrupted before he could complete his explanation (p. 85). Far from denying any role in the Pryor nomination, Kavanaugh stated that he “might have attended a moot court session” (p. 85). Further, his statement that he would not “disclose internal discussions and deliberations” about the Pryor nomination (p. 86) clearly implies that he might have been involved in such discussions and deliberations.

In context, Kavanaugh’s statement that he “was not involved in handling” the Pryor nomination (p. 85) clearly means only that the Pryor nomination was not in his portfolio. That’s consistent with ordinary usage: Imagine a staff meeting in which someone asked, “Who’s handling the Pryor nomination?” You’d expect the person who had been “assigned” the nomination to answer.

If this weren’t already clear enough from Kavanaugh’s oral testimony, his response to a written question (part of the same hearing record, p. 94) dispels any possible doubt:

I was one of eight associate counsels in the White House Counsel’s office who participated in the judicial selection process. At Judge Gonzales’ direction, we divided up states for district court nominations, and we divided up appeals court nominations as vacancies arose. Our roles included discussions with staffs of home-State Senators and other state and local officials, review of candidates’ records, participation in candidate interviews (usually with Judge Gonzalez and/or his deputy and Department of Justice lawyers), and participation in meetings of the judicial selection committee chaired by Judge Gonzales. That committee would make recommendations and provide advice to the President. Throughout this process, we worked collaboratively with Department of Justice attorneys. It is fair to say that all of the attorneys in the White House Counsel’s office who worked on judges (usually ten lawyers) participated in discussions and meetings concerning all of the President’s judicial nominations.

So contrary to what Leahy and other Democrats are now suggesting, Kavanaugh never contended that he had no involvement at all on the Pryor nomination.

I’ll note further that when Kavanaugh had his second hearing on his D.C. Circuit nomination in May 2006 (transcript here), Senate Democrats were eager to do all they could to defeat his nomination. They asked many questions at that second hearing that followed up on matters at the first hearing, but no one suggested that his 2004 testimony regarding Pryor was internally inconsistent. That’s obviously because they recognized that, understood in context, his testimony that he “was not involved in handling” the Pryor nomination meant that he was not the White House lawyer with the lead responsibility for it, not that he played no role at all in it.

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