How to Fix the Kavanaugh Confirmation Hearings


“Show it to the witness,” Dash commanded.

“Oh, well, yes, yes, I do remember,” the witness admitted.

Fourteen years later, another attorney became the face of a Senate committee in the spotlight. At the time, Arthur Liman was the best trial lawyer in the nation. He took time off from his New York law firm to become chief counsel to the committee investigating the Iran-Contra affair during the Reagan administration. His interrogation of Lieutenant Colonel Oliver North, a central figure in the arms scandal, was the signal moment of the hearings and helped to crystallize competing evaluations of North’s conduct. Some critics said Liman was too soft on the marine, but nobody accused him of posing meandering questions or of a lack of effort. Consider the time that Liman engaged North on an important memo that somehow hadn’t been fully destroyed.

“Are you criticizing how well I did my shredding?” North asked.

“Colonel,” Liman said, “my eyesight suffered from reading what you left behind.”

“I deserved that one,” North replied.

Tall and gawky, Liman seemed to like playing the absent-minded professor rather than the midtown-Manhattan shark. It was part of the theater. His hair was always unruly, with a wriggle of gray over his forehead. The Washington Post devoted a full article to describing it, quoting Nancy Reagan’s stylist, “His hair looks like a poodle stretched over a balloon.”

Perhaps the most successful lawyer at a celebrated congressional hearing was Joseph Welch during the Army-McCarthy investigation in 1954. Welch was a partner at an old-line Boston law firm, but would have nicely fit into a Dickens novel: elfin, bow-tied, wry, and sly. While the Army, not the Senate, had brought him in, he still had a microphone and was given the chance to conduct questioning. It was Welch, not a senator, who delivered the unexpected coup de grace to Joseph McCarthy. Responding to a McCarthy diatribe, in a subdued, mournful voice, Welch asked:

“Have you no sense of decency, sir? At long last, have you left no sense of decency?”

The gallery erupted in applause. Wiping away tears, he soon left the hearing room. (Otto Preminger knew acting talent when he saw it, recruiting Welch to play the trial judge in the film Anatomy of a Murder. Welch got rave reviews.)

Partisans on both sides of Supreme Court confirmation hearings ought to want thoughtful inquiry. That’s a good way to find out if presidential nominees will be thoughtful justices. The current system is a charade. Ideally, Republicans and Democrats each should seek out their own Perry Mason. In the current environment, the party in power never will, because it can’t possibly see far enough ahead to the day when it’s no longer the party in power. But the party out of power—these days, the Democrats—can lead the way.

Maybe better questioning of Brett Kavanaugh might get him to budge. If he doesn’t, it might move the needle on public opinion or shift a few Senate votes. But if nothing else, it would surely do a better job illuminating his views—or his refusal to disclose them—than what we get now.

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David A. Kaplan is the former legal affairs of Newsweek. He is the author of The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution.


USA News


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