NY Times: Kagan ‘Follows Precedent’ by Not Offering Opinions, While Kavanaugh ‘Ducks Questions’

Brett Kavanaugh
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• September 6, 2018 2:45 pm


The New York Times employed dramatically different headlines for similar Supreme Court confirmation hearing answers from Elena Kagan in 2010 and Judge Brett Kavanaugh on Wednesday.

Then the solicitor general nominated to the Supreme Court by President Barack Obama, Kagan's caginess on questions about her own views was covered with the headline, "Kagan Follows Precedent by Offering Few Opinions." For Kavanaugh, asked about his views on whether President Donald Trump could be subpoenaed or if he could subvert the Russia investigation, the Times wrote, "Kavanaugh Ducks Questions on Presidential Powers and Subpoenas."

White House spokesman Raj Shah wrote, "Double standard anyone?" in an email blasting the differences.

While Kagan was portrayed in the lede sentence as having "deflected" questions on topics like gun rights and abortion, Kavanaugh "dodged" hypothetical questions about Trump obstructing the Russia investigation, in the Times‘ view.

On Kagan:

Elena Kagan deflected questions about her own views on gun rights and abortion during her Supreme Court confirmation hearings on Tuesday, instead describing Supreme Court precedents. She declined to say whether terrorism suspects must be warned of the right to remain silent, saying the issue was "quite likely to get to the courts."

On Kavanaugh:

Judge Brett M. Kavanaugh, President Trump’s nominee to the Supreme Court, on Wednesday dodged direct questions about whether the Constitution would allow Mr. Trump to use the powers of the presidency to thwart the Russia collusion and obstruction investigations that are swirling around his administration.

The Times articles both discussed the respective nominees saying it would be inappropriate to weigh in on matters that come before them should they reach the Supreme Court.


"I think that that was wrong," she said. "I think that — in particular, that it wouldn’t be appropriate for me to talk about what I think about past cases — you know, to grade cases — because those cases themselves might again come before the court."


"I’m not going to answer hypothetical questions of that sort," Judge Kavanaugh said, insisting that it would be inappropriate for a Supreme Court nominee to publicly offer views on issues that might come before the court once he is a justice.

Reporter Sheryl Gay Stolberg was bylined on both pieces. Michael D. Shear and Adam Liptak co-wrote the article on Kavanaugh, while Charlie Savage worked with Stolberg on the Kagan piece.