Raucous First Day of Kavanaugh Hearing Includes Some Key Education Moments

By Mark Walsh — September 04, 2018 6 min read
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The confirmation hearing for U.S. Supreme Court nominee Brett M. Kavanaugh had a raucous first day on Tuesday, with Kavanaugh extolling the principle of racial equality in education, Democrats calling for a postponement of the hearing, dozens of interruptions by protesters, and the father of a student killed in the Parkland, Fla., incident claiming he was rebuffed by Kavanaugh when he sought to shake hands with the nominee.

Fred Guttenberg, whose 14-year-old daughter Jaime was among the victims of the Feb. 14 shootings at Marjorie Stoneman Douglas High School that killed 17 students and staff members and injured 17 others, was a guest at the hearing of Sen. Dianne Feinstein, the ranking Democrat on the Judiciary Committee.

Guttenberg, who had been introduced by Feinstein in the morning, approached Kavanaugh at the lunch break, extended his hand, and tried to speak to him.

“I said my name is Fred Guttenberg, I’m the father of Jaime Guttenberg, who was murdered in Parkland, Florida,” Guttenberg said in an interview. “He just turned around and did a beeline.”

Video clips of the exchange show that Kavanaugh appeared to hesitate and look at Guttenberg, then turn away. But the moment occurred quickly, and Kavanaugh’s chief White House spokesman said there was no snub, even though the encounter quickly went viral.

“While Fred Guttenberg’s encounter with Judge Kavanaugh has gotten your attention in the past hour, the video from the hearing room shows that as the judge was leaving and had already turned away and begun walking, security intervened and ushered the judge away,” Raj S. Shah, the spokesman, said in an email.

Reference to Brown v. Board of Education

The hearing began chaotically as Democrats interrupted Chairman Charles E. Grassley, R-Iowa, with repeated complaints about a late release Monday night of 40,000 additional pages of Kavanaugh documents and demands that the proceeding be postponed.

“We cannot possibly move forward,” Sen. Kamala Harris, D-Calif., said at the outset of the hearing. “We have not been given an opportunity to have a meaningful hearing on this nominee.”

Sen. Richard Blumenthal, D-Conn., repeatedly moved to delay the hearing. Grassley ruled the requests out of order.

“This is the first confirmation for a Supreme Court justice I’ve seen, basically, [run] according to mob rule,” Sen. John Cornyn, R-Texas, said. Some spectators booed, and Sen. Richard Durbin, D-Ill., said, “What we’ve heard is the noise of democracy. This is what happens in a free country when people can stand up and speak and not be jailed, imprisoned, tortured, and killed because of it. It is not mob rule.”

Besides the handshake incident, which wasn’t widely noticed in the hearing room, there were a few other education-related moments throughout the first day.

In his opening statement, Kavanaugh built on a theme that he and President Donald Trump put forth during his White House unveiling in July by praising the service of his mother, Martha Gamble, as a teacher in the District of Columbia schools beginning 50 years ago, in 1968.

“At that time, my mom started as a public-school teacher at McKinley Tech High School here in Washington, D.C.,” Kavanaugh said, adding that “1968 was a difficult time for race relations in our city and our country. McKinley Tech had an almost entirely African-American student body.”

“I vividly remember days as a young boy sitting in the back of my mom’s classroom as she taught American history to a class of African-American teenagers,” the nominee said. “Her students were born before Brown versus Board of Education or Bolling versus Sharpe. By her example, my mom taught me the importance of equality for all Americans—equal rights, equal dignity, and equal justice under law.”

Bolling v. Sharpe was the 1954 companion case to Brown v. Board of Education of Topeka involving desegregation of schools in the nation’s capital. Kavanaugh’s mother later went to law school, becoming a prosecutor and then a Maryland state judge.

Blumenthal said he intended to ask Kavanaugh whether Brown was “correctly decided.” Blumenthal asked that of now-Justice Neil M. Gorsuch during his confirmation hearing last year. (Gorsuch eventually said that it was.) And earlier this year, the Connecticut senator asked the same question of one of Trump’s nominees for a federal district judgeship, Wendy Vitter, who declined to answer.

The question has been asked of judicial nominees in part to try to dislodge their reluctance to answer questions about Supreme Court precedents on abortion and privacy rights.

Sen. Cory Booker, D-N.J., noted that another guest of Democrats on Tuesday was Carlotta Walls LaNier, one of the Little Rock Nine who desegregated Central High School in the Arkansas capital in 1957.

“There are people like Ms. LaNier who are part of gaining rights in this country, advancing the ideals of this nation toward the purity of the ideals put forth by the founders despite the imperfections,” Booker told Kavanaugh. “And now the fear and the worry is, what the trend of the court is doing is rolling back those gains, it’s undermining that progress, it’s restricting individual rights.”

Feinstein said there had been 273 school shootings since the 2012 incident at Sandy Hook Elementary School in Newtown, Conn., when a gunman killed 20 children and six employees.

She expressed concerns about positions taken by Kavanaugh when his court, the U.S. Court of Appeals for the District of Columbia Circuit, ruled in an important gun-rights case that was a followup to the landmark Supreme Court decision in District of Columbia v. Heller, which recognized a Second Amendment right of individuals to possess firearms.

In the follow-up case, Kavanaugh was the dissenter in a three-judge panel decision that upheld some of the federal district’s gun registration requirements and a prohibition against semi-automatic weapons.

“In your own words, gun laws are unconstitutional unless they are ‘traditional or common in the United States,’” Feinstein said. “You concluded that banning assault weapons is unconstitutional because they have not historically been banned. This logic means that even as weapons become more advanced and more dangerous, they cannot be regulated.”

“I care a lot about this,” she said. “I authored the assault weapons legislation that become law for 10 years, and I’ve seen the destruction. If the Supreme Court were to adopt your reasoning, I fear the number of victims would continue to grow and citizens would be rendered powerless in enacting sensible gun laws.”

‘A Beautiful Family’

It was after Feinstein’s statement, and several hours worth of back-and-forth between Democrats and Republicans, as well as numerous interruptions by protesters among the small groups of the general public allowed to enter the hearing room, that the lunch break finally came. That is when Guttenberg seized his moment to approach Kavanaugh.

Education Week‘s Andrew Ujifusa writes here about how the exchange played on social media.

After the statement by Kavanaugh’s White House communications team, this reporter sought out Guttenberg during an afternoon break in the proceedings.

Asked whether he had only sought to introduce himself, or to impart a message to Kavanaugh, Guttenberg said, “I wanted to introduce myself, but I also wanted to say to him, ‘Listen, you have a beautiful family, you’re a father. I want to know that you’re going to look into my eye and understand the pain of a father.’”

“I have no issue with the Second Amendment” Guttenberg said. “I have no issue with legal gun owners. But I do have issues with rolling back the common-sense things we’ve already done. ... He’s already said where he stands on these issues. He’s kind of in a no-limits-on-the-Second-Amendment mentality. And the problem is, it’s predictable what he’ll do. And if he does it, people will die.”

Guttenberg said that after the lunch break, the U.S. Capitol Police approached him and questioned him for several minutes about the incident, which the father believes was at Kavanaugh’s instigation. Once they confirmed that he was Feinstein’s guest, he said, he was allowed to return to the hearing room, where he remained for the rest of the day.

Guttenberg did not seek to approach Kavanaugh at the end of the day’s proceedings.

The hearing was to resume Wednesday at 9:30 a.m., when senators’ questioning of Kavanaugh will begin.

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

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