When Brett Kavanaugh goes before the Senate Judiciary Committee, he will do so as one of the most political Supreme Court nominees in modern history.
From his experience to the way he was chosen by President Donald Trump, Kavanaugh’s nomination is surrounded by partisan politics. And most troubling for some Democrats is whether partisan politics is also the reason why Trump picked Kavanaugh ― in the hopes that Kavanaugh’s belief in a strong executive would protect him from the investigations he’s facing.
‘Judicial Payment For Political Services Rendered’
Kavanaugh cut his teeth in Washington working for what Democrats consider to be the most brazen and partisan crusade in modern politics: Ken Starr’s investigations into President Bill Clinton in the 1990s.
Kavanaugh spent more than three years working for the independent counsel who was looking into various scandals surrounding the then president. He was a proponent of aggressively going after Clinton, urging prosecutors to question him in graphic detail about his relationship with Monica Lewinsky. The New York Times described a 1998 memo Kavanaugh wrote as “shot through with disgust for Mr. Clinton’s behavior” and “deep hostility.”
Kavanaugh’s 10 suggested questions included ones about oral sex, masturbation and phone sex. He reportedly regretted the tone of the memo after writing it.
“As I look through all of the different issues that you have been involved in as an attorney in public service and the private sector, it seems that you are the Zelig or Forrest Gump of Republican politics.”
- Sen. Dick Durbin (D-Ill.) to Brett Kavanaugh, 2004
But even before the Lewinsky affair, Kavanaugh was urging Starr to go hard after Clinton. He personally pushed for expanding the Whitewater investigation to include looking at the death of White House staffer Vince Foster.
Foster committed suicide in 1993, a conclusion reached by U.S. Park Police (since Foster died in a park)and the FBI. In fact, multiple investigations concurred that it was a suicide.
Yet in March 1995, after those reviews, Kavanaugh called for a “full-fledged investigation” into Foster’s death. That inquiry helped validate right-wing conspiracy theorists who believed that the Clintons killed Foster, and the matter outraged Foster’s family.
After his work with Starr, Kavanaugh went on to earn top jobs in Republican circles. He was part of George W. Bush’s legal team in the 2000 recount. In the White House, he served as staff secretary and as associate counsel, overseeing judicial nomination fights.
Remaking the courts to push a conservative agenda was on Kavanaugh’s radar and discussed in the Bush White House. On June 7, 2003, he emailed a fellow White House staffer, Joel Kaplan, with the subject line: “Post story ― see last paragraph per our discussion.” The email consisted of an op-ed with a final section that read:
The odds are that the Senate will soon have a chance to determine whether the Supreme Court will continue in the mold of the Rehnquist Court ― usually to the right of center but cautious, sometimes messy, and in major cases, often unpredictable ― or whether the next chief justice will have the inclination and the votes to take the court, and the country, in a very different direction.
It’s not clear whether Kavanaugh agreed with that assessment, and Kaplan didn’t reply to a request for comment on their discussion.
Republican supporters say that Kavanaugh is a brilliant legal mind (in 2003, GOP strategist Karl Rove reportedly called him “one of the smartest people he knew,” according to a colleague in an email) who has received the American Bar Association’s highest rating. They say his pick shouldn’t have been a surprise; Trump is, after all, a Republican, and he would therefore pick someone who shared his worldview.
But Democrats have long been uneasy with Kavanaugh, and Trump no doubt knew that by picking him, he’d encounter objections.
Bush nominated Kavanaugh for a seat on the prestigious D.C. Circuit in 2003, but he wasn’t confirmed until 2006 because of opposition from Democrats. Then, as now, Democratic senators were uneasy with his previous jobs in Republican politics.
In 2004, Sen. Chuck Schumer (D-N.Y.), who is now the minority leader, said Kavanaugh’s nomination was “among the most political in history” and appeared to be “judicial payment for political services rendered.”
“As I look through all of the different issues that you have been involved in as an attorney in public service and the private sector, it seems that you are the Zelig or Forrest Gump of Republican politics,” said Sen. Dick Durbin (D-Ill.) in a 2004 Judiciary Committee hearing. “You show up at every scene of the crime. You are somehow or another deeply involved, whether it is Elian Gonzalez or the Starr Report, you are there.”
An Incomplete Picture Of Bush White House Work
When Justice Anthony Kennedy announced his retirement in June, Trump confirmed that his choice to replace him would come from a list of a 25 candidates that was essentially outsourced to Leonard Leo, executive vice president of the Federalist Society. All but one of the people on that list were members of the powerful conservative legal organization or have been involved with its events.
From the start, a number of Democratic senators said they found every person on Trump’s list unacceptable and called on him to nominate someone else. He nevertheless chose Kavanaugh, who was on the list of 25 names ― but was not on the original, smaller list of 11 people.
Since then, Democrats have pushed for all the records from Kavanaugh’s time in the Bush White House. But what they’re getting is just a small fraction of the available documents.
Republicans asked the National Archives and Records Administration to produce available documents from Kavanaugh’s days as associate White House counsel. But the Archives said it couldn’t complete the review of more than 1 million records until the end of October ― long after the August deadline imposed by Republicans, who want to confirm Kavanaugh before the midterm elections.
Instead, Republicans went directly to the Bush Presidential Library, which said it could conduct the process faster. Democrats have objected to this parallel process, noting that the review is being led by a team of Bush lawyers. Republicans have also resisted Democratic calls for the records from Kavanaugh’s time as White House staff secretary.
Sen. Orrin Hatch (R-Utah) has argued that Democrats should stop playing politics with Kavanaugh’s nomination.
“We should call this hubbub about documents for what it really is ― a naked partisan ploy, a red herring meant to distract the American people from Judge Kavanaugh’s indisputable credentials,” he said in a floor speech on Aug. 16. “Watching this confirmation unfold is like watching the tortured last moments of a blowout basketball game. Democrats are down 30 with 10 seconds left, but they keep fouling to stop the shot clock in an attempt to avoid their inevitable defeat. Enough already.”
On Friday, the Senate Judiciary Committee found out that while about 267,000 documents of Kavanaugh’s work would be made public, another 100,000 would be withheld because the Trump administration was claiming presidential privilege.
And according to Sen. Amy Klobuchar (D-Minn.), there are about 148,000 documents that members of the Judiciary Committee have been able to view but which they’re not able to share publicly. Sen. Chuck Grassley (R-Iowa), the committee chairman, said he’s willing to waive some of those restrictions if committee members want to discuss certain documents at Kavanaugh’s hearing but that so far, only Klobuchar has requested a waiver.
Protection For Trump?
Kavanaugh has tried to distance himself from his Starr investigation days. In 2009, he wrote an article arguing that presidents should not be distracted by criminal investigations, civil lawsuits or questions from a prosecutor or defense attorney. The position, of course, is very different from the one he had when he was investigating Clinton.
″[A] President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,” he wrote in the Minnesota Law Review.
Kavanaugh said he didn’t believe the president was above the law but that such investigations should take place after a president leaves office.
This sort of position is likely welcome news to Trump, who is currently facing six separate lawsuits and investigations. At least one of them could end up before the Supreme Court, and this issue is going to be a focus of Democratic senators’ questions when Kavanaugh goes before the Judiciary Committee. Did Trump pick Kavanaugh because of his views on the executive?
In other good news for Trump, Kavanaugh also appears to ascribe to a “unitary executive” theory that essentially believes the president has unchecked power over the executive branch.