An Insider’s Guide to the Kavanaugh Confirmation Hearing

People who have not worked on the Hill may have been confused by what happened at the Senate Judiciary Committee this past week. In order to understand all that you saw, you have to understand the political nature of Congressional hearings. Too often they are not convened to seek the truth, nor to let a witness explain their views. Too often they are not meant to allow lawmakers reach a rational conclusion on complex issues. Rather they are scripted political theatre, sometimes as scripted as a play. They are designed to score political points, make the other side look bad – hopefully villainous, and direct the public’s attention to anything other than the hearing. Senators and Congressmen know it. Staffers know it. Both sides do it. The confirmation hearings of Brett M. Kavanaugh are an excellent example.

There are many strategies to achieve those goals.

The first objective of a hearing is to help your political position. Both Senators Corey Booker and Kamala Harris have been mentioned as possible Democratic presidential nominees. That explains the former’s attempt to goad the Senate to censure or expel him for questions about confidential documents, and the latter’s insistence that Judge Kavanaugh ask him about things he likely could not remember. They are not to blame. Remember, both sides do it.

All politicians develop a set of talking points: themes they repeat again and again and again until the public instinctively memorizes them. Witness the claims of Democrat that, if his nomination is approved, Justice Kavanaugh will undo every progressive policy enacted since Franklin Roosevelt was in office. Those are talking points. And very effective ones at that. That observation is not meant to reflect negatively on Democrats. It is just a statement of fact. Remember both sides do it.

Another political ploy is to appeal to your base. Senators and Members do that through questions designed to make their supporters feel good or, in the words of Senator Sheldon Whitehouse, to show that you are on the side of peace, prosperity and puppies.

The questions should also reinforce your talking points. Thus, all the questions directed by Democrats to Judge Kavanaugh about abortion, healthcare, voting rights, and racial profiling. Talking points and questions that repeat your talking points are not confined to the minority side of the dais. Remember both sides do it.

Second is to show your opponents as being for war, economic collapse, and the torture of small furry animals. There are many ways to do this. An oft-used strategy is to make it appear that people with whom you disagree act in bad faith or have something to hide. A classic method is to claim that people are unfair, that they are violating the rules. That is what the Democrats did when they protested the production of requested documents and the designation of some as committee confidential. Or when they said the hearing was a rush to judgement. That strategy is not confined solely to Democrats. Remember both sides do it.

Another way to paint your target in a bad light is to ask questions designed to trap them. Those are known as gotchyas. The questions Democrats posed about whether Judge Kavanaugh supports Roe v. Wade, or the healthcare law mandate that insurers cover people with pre-existing conditions are good examples. Senators know Mr. Kavanaugh can’t discuss anything that would likely or potentially come before the Supreme Court. But they ask him so they can tell the world he refused to say whether he will support a woman’s right to choose or deny someone with cancer the ability to get treatment. That makes him into the Snidely Whiplash of modern politics. Democrats aren’t the only ones who do this. Remember, both sides do it.

Third is having the public focus not on the witness’s answers or position or the substance of the hearing but on what lawmakers and staff call food fights – intra-party arguments over procedure or the majority’s motives, or calls to adjournment because of some point of order. During the Kavanaugh hearing the Democrats objected to documents that were not produced in a timely fashion or their classification as committee confidential, claimed the hearing was a charade designed to rush Judge Kavanaugh’s confirmation through, and motions to adjourn. The continuous outbursts from the audience also served that purpose. The press chases bright shiny objects and is more interested in conflict than in policy. If you give them something to distract their attention, the media will focus on the arguments and not the hearing itself. To give credit where is due, the Democratic senators and their staff used that tactic perfectly. But, repeat after me — remember, both sides do it.

It’s all part of the game. Score points, make the witness and the other side look bad, divert attention. That’s just good staff work. I know. I’ve done it: scripted hearings, drafted talking points, written questions, developed parliamentary strategy. You may not like it but it’s just the way things are on the Hill. Remember, both sides do it.

Matthew Tallmer spent two decades as a Congressional Committee staffer.

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