Outside the hearing room, one of the stranger social media frenzies was sparked by televised images of Kavanaugh’s former clerk Zina Bash sitting behind him as he testified. Her arms were crossed, the thumb and forefinger of her right hand touching to form something like an “okay” gesture. An urban legend, nurtured on the internet, has it that the “okay” gesture signals “white power.” Eugene Gu, a prominent anti-Trump activist with 271,000 Twitter followers, tweeted, “Kavanaugh’s former law clerk Zina Bash is flashing a white power sign behind him during his Senate confirmation hearing. They literally want to bring white supremacy to the Supreme Court.” Some fourteen thousand people retweeted Gu’s absurd and baseless accusation.30
Bash’s husband, a U.S. attorney, took to Twitter himself to defend his wife’s honor and point out how ludicrous the charge was, adding that his wife is half-Mexican and half-Jewish and her grandparents were Holocaust survivors.31 Nonetheless, many major news outlets, including Time and the Washington Post, reported on the conspiracy theory, fanning the flames on social media.32 If the first day of the Kavanaugh hearings was a circus, the “white power” Twitter follies proved to be the most appalling sideshow.
On Wednesday, Senator Leahy began a line of questioning that would continue over the next two days. He wanted to know about emails Kavanaugh had received when he was at the Bush White House from Manuel Miranda, then a Senate Judiciary Committee staffer. In 2001, Miranda discovered sensitive Democratic memoranda that had been left on a server shared with Republicans. One of them, which was leaked in 2003, revealed that Democrats were blocking Miguel Estrada’s confirmation to the D.C. Circuit because he was Hispanic.
Kavanaugh had already been asked in his appellate court confirmation hearings in 2004 and 2006 if he knew about this security lapse. He said he didn’t and wanted to make it clear that he had never seen the memoranda. If he received information from those documents, he said, he did not know how it was obtained. Now, on day two of his Supreme Court confirmation hearings, he was asked the same questions.
Leahy began, ominously, by asking if he wanted to change anything from his previous testimony. Kavanaugh said he did not. Leahy noted that in previous hearings he had been asked more than a hundred questions about the memoranda and had denied knowing anything about how Miranda gained the information. “My question is this: Did Mr. Miranda ever provide you with highly specific information regarding what I or other Democratic senators were planning on asking certain judicial nominees?” Leahy asked this question twice. Kavanaugh explained that such exchanges of information were quite common between staff on the Senate Judiciary Committee and the White House during a confirmation process.
Leahy then informed Kavanaugh that among the documents marked “committee confidential” was “evidence that Mr. Miranda provided you with materials that were stolen from me. And that would contradict your prior testimony.” He asked Grassley to make the documents public. During the Gorsuch confirmation, Grassley had asked senators to alert him if they wanted any confidential documents released for use in the hearings. For Kavanaugh, Democratic senators were making outlandish requests, such as every document related to executive power or the environment. When Senator Klobuchar asked for four specific and relevant documents to be released for the hearing, Grassley made a show of thanking her for following an appropriate process. The Democratic strategy had been obstruction at all costs, so Klobuchar was annoyed at repeatedly being singled out for being cooperative and reasonable. At one point, Democratic staff accidentally shared with Republican staff their “hot list” of Kavanaugh documents they would eventually publicize through different senators. After sending the email that identified all of the documents they felt were most sensitive, the Democrats told the Republican staff to ignore the email. It was valuable information, even if Republican staff had already flagged most of the same documents. In any case, for Leahy’s request, Grassley obtained clearance from both the Bush and Trump White House staffs to make the documents available the next day.
Leahy’s smoking gun was nowhere to be found. The emails contained discussions about judicial nominees and required some contextual parsing, but nothing indicated that Kavanaugh had reason to suspect that Miranda had obtained the information improperly.33
In response to questions from Senator Graham, Kavanaugh twice mentioned a book that would have more significance in the weeks to come. In the sixth grade he had studied To Kill a Mockingbird, Harper Lee’s novel about a man wrongly accused of rape. He kept his old copy of the book in his chambers as a reminder of the importance of not judging others and of empathizing with the accused and downtrodden.
The next attempt to paint Kavanaugh as a perjurer was a baffling line of questioning by Senator Kamala Harris, a former prosecutor who was preparing to run for president. She began by asking Kavanaugh if he had ever discussed Robert Mueller, the independent counsel then investigating the Trump presidential campaign, with anyone. He explained that he used to work with Mueller. She asked if he had ever discussed Mueller’s investigation. He said he had. Then she asked repeatedly if he had ever had any discussions with employees of Kasowitz, Benson & Torres, the firm of President Trump’s personal lawyer, Marc Kasowitz. As though she had him right where she wanted him, Harris warned the judge dramatically, “Be sure about your answer, sir.”
Kavanaugh was utterly confused. While he didn’t think he even knew anyone at the Kasowitz firm, he was alert to the danger of a perjury trap. “Is there a person you’re talking about?” Kavanaugh asked haltingly.
“I’m asking you a very direct question,” Harris snapped. “Yes or no?”
“I don’t know everyone that works at that firm,” Kavanaugh said.
Implying that she had damaging information, the senator said, “I think you’re thinking of someone and you don’t want to tell us.”
A Democratic staffer told reporters that they had reason to believe Kavanaugh had had conversations with people at Kasowitz’s firm, and a compliant press ran with the story that the nominee appeared to have committed perjury.34 “Kavanaugh Stumbles,” read the headline in Politico.35 “Harris Lands First Blow on Kavanaugh,” announced Roll Call.36 The coverage of Harris herself verged on fawning. The Washington Post’s Jennifer Rubin gushed about a “break-out moment” that showed “her prosecutorial skill” and made her “an instant Democratic heroine.” She opined further, “Kavanaugh looked confused, if not nervous. He hadn’t seen this coming.”37
But in fact he had seen it coming, which was why he was so cautious. Senator Ted Cruz had warned him that Democrats would try to trick him into inconsistencies. In other lines of questioning, Kavanaugh had responded with marked openness. Being on offense was part of his strategy from the beginning. While he followed the Ginsburg precedent of not giving his views on particular cases, he eagerly engaged even the most hostile questioner. He was happy to talk at length about the Federalist Papers, his own decisions, the doctrine of stare decisis—anything but how he would vote in a specific case. He was not a man of one-sentence answers. But he recognized that Harris was trying to lay a perjury trap. It didn’t matter that her questions would have been unacceptable and unethical in a courtroom. He had to be careful not to say anything that could be perceived as untrue. Who knew who might have just been hired at Kasowitz, Benson & Torres?