Kavanaugh Expresses Regret Over ‘Handshake’ Flap With Parkland Father

By Mark Walsh — September 13, 2018 6 min read
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U.S. Supreme Court nominee Brett M. Kavanaugh said in a written response to a senator’s followup question that he assumed the father of a student killed in the Parkland, Fla., shooting who had approached him on the chaotic first day of his confirmation hearing was a protestor.

If he had realized the identity of Fred Guttenberg, whose 14-year-old daughter Jaime was among the 17 students and adults killed during the Feb. 14 shootings at Marjory Stoneman Douglas High School, Kavanaugh said, “I would have shaken his hand, talked to him, and expressed my sympathy. And I would have listened to him.”

Kavanaugh responded Wednesday to a question from from Sen. Charles E. Grassley, R-Iowa, the chairman of the Judiciary Committee, one of 1,287 he received from the panel’s members. The nominee was asked about a number of legal issues in education, such as affirmative action in college admissions, special education, charter schools, and vouchers, but he mostly gave cautious answers. [UPDATED Thursday 11:12 a.m.] The Judiciary Committee on Thursday delayed a vote on Kavanaugh’s nomination until Sept. 20.

Grassley was one of only two Republicans on the committee to submit written questions to Kavanaugh, compared with all of the panel’s Democrats. He asked the nominee to explain his reaction to Guttenberg.

On Sept. 4, the Parkland father was a guest of Sen. Dianne Feinstein, D-Calif., at the hearing. He approached Kavanaugh at the lunch break, extended his hand, and sought to have a conversation about assault weapons in light of the nominee’s views that possession of semi-automatic weapons is protected under Supreme Court precedent. (The suspect in the Parkland shooting used an AR-15 style semi-automatic rifle.)

Guttenberg believes Kavanaugh rebuffed him. He told Education Week he was interviewed by the U.S. Capitol Police after the incident before being allowed to remain at the hearing.

The incident went viral during the confirmation hearing, with various photos and video clips prompting differing perceptions of the incident.

Kavanaugh did not directly seize on a chance to give his views on the incident the next day, when Sen. Lindsey Graham, R-S.C., asked what he might wish to say to Guttenberg.

But in response to Grassley’s written question, Kavanaugh said, “As I was leaving the hearing room for a recess last Tuesday, a man behind me yelled my name, approached me from behind, and touched my arm. It had been a chaotic morning with a large number of protestors in the hearing room. As the break began, the room remained noisy and crowded. When I turned and did not recognize the man, I assumed he was a protestor. In a split second, my security detail intervened and ushered me out of the hearing room.”

“In that split second, I unfortunately did not realize that the man was the father of a shooting victim from Parkland, Florida,” Kavanaugh added. “Mr. Guttenberg has suffered an incalculable loss.” Kavanaugh concluded his answer with his statement that had he realized who Guttenberg was, he would have shaken the father’s hand and spoken to him.

In response to a question from Sen. Richard Blumenthal, D-Conn., Kavanaugh said he did not ask the U.S. Capitol Police to remove Guttenberg from the hearing room.

“No one acted at my request,” Kavanaugh said in response to Blumenthal. “If someone purported to act on my behalf, they did so without my knowledge and contrary to my wishes.”

Guttenberg tweeted about Kavanaugh’s written response late Wednesday.

“This is interesting,” the Parkland father said. “As for details on what happened, I am confident in my description. I wish he would have said this last week when Senator Lindsey Graham asked about it. I was still there and would have been happy to have spoken with him.”

‘Inappropriate for Me to Answer’

Grassley said in a statement that of the 1,287 followup questions posed to Kavanaugh, all but nine were posed by Democrats. “Submitting this many written questions appears to be just one more effort to gum up the process,” Grassley said.

One new question on an education issue came from Sen. Patrick Leahy, D-Vt., who noted that Kavanaugh became a board member of the Washington Jesuit Academy in 2017, a Roman Catholic school that participates in the District of Columbia’s federally funded private school voucher program.

“Due to your involvement as a board member of this school, will you recuse yourself from cases regarding the legality of school vouchers since the decision will have a direct impact on how the Washington Jesuit Academy functions as a school?” Leahy asked.

Kavanaugh responded, “I will consider that question as appropriate.” He added that he would step down from the school’s board if confirmed to the Supreme Court.

But asked by Leahy whether he believes that taxpayer dollars “should be given to private parochial schools,” whereby such funds could be used to promote religious messages, Kavanaugh said, “This question calls upon me to offer my views as to a matter of public policy. As a sitting judge and nominee, it would be inappropriate for me to provide an answer.”

The nominee gave a similar response to written questions about the Supreme Court’s ruling last year in Endrew F. v. Douglas County School District, in which the high court held that under the Individuals with Disabilities Education Act, a school must offer an individualized education program (IEP)] reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

Endrew F. is a precedent of the Supreme Court entitled to respect under the law of precedent,” Kavanaugh said in response to several questions posed about the ruling by Sen. Kamala D. Harris, D-Calif. “Because the scope of that precedent is the subject of pending litigation that could come before me, I cannot provide a view on the additional questions asked above.”

And he gave some variation of that answer to questions about whether charter schools are public schools that must abide by civil rights laws, and whether being transgender was an “immutable characteristic.”

“I would want to study that question in more depth before giving a definitive answer,” Kavanaugh responded to Harris’s transgender question.

Leahy said it was “commendable” that Kavanaugh has made it a point to hire women and minority law clerks, as was discussed several times during the hearing. “Why do you believe it is appropriate for you to have an interest in your law clerk’s race or sex when placing them on the government payroll, but a university cannot do the same for its admissions?” Leahy asked.

“I am proud of my record of hiring the best to serve as my law clerks—including women and minorities—and of my efforts to promote diversity,” Kavanaugh replied. “The extent to which public universities may consider certain factors as admissions criteria is the subject of precedent and ongoing litigation.”

Sen. Cory Booker, D-N.J., who had asked Kavanaugh about his views on racial diversity in education during the hearing, followed up with several related questions. One involved a comment the nominee had made when he was an associate White House counsel under President George W. Bush. Kavanaugh had written to a colleague that while it was permissible to track the ethnicity of those in a database of potential appointees to federal boards and commissions, “in a perfect world, no one would keep track.”

Asked by Booker to explain the comment, Kavanaugh wrote, “In a perfect world, the legacies of racial discrimination would be fully behind us and no one would be judged or ‘tracked’ by the color of their skin.”

“We are not in that perfect world,” Kavanaugh continued, “and as I have explained repeatedly in my cases and at the hearing, the long march for equality for African-Americans is not over.”

PHOTO: Fred Guttenberg, left, the father of Jamie Guttenberg, who was killed in the Feb. 14 shooting at Marjorie Stoneman Douglas High School in Parkland, Fla., attempts to shake hands with U.S. Supreme Court nominee Brett M. Kavanaugh, right, during the lunch break of his confirmation hearing before the Senate Judiciary Committee on Sept. 4. Kavanaugh’s refusal to shake Guttenberg’s hand caused a flap, and Kavanaugh wrote in a response to senator’s followup question on Sept. 12 that he assumed the man had been a protester and would have greeted him if he had realized who Guttenberg was. --AP Photo/Andrew Harnik, File

A version of this news article first appeared in The School Law Blog.