Last week, Senator Frist announced his intention to move the controversial nomination of White House Staff Secretary Brett Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit. If Senate Judiciary Committee Chairman Arlen Specter (R-PA) does not grant the Committee Democrats' request for a second hearing on Mr. Kavanaugh (this is still a possibility, according to Senate staff), the Committee will vote on the nomination this Thursday. If that occurs, Mr. Kavanaugh is expected to be voted out of a Committee on a 10-8, party-line vote.
Like his promise to bring up flag burning and gay marriage proposals, Senator Frist's promise to move the Kavanaugh nomination quickly is a transparent effort to rouse the conservative base for both the midterm elections and his own run at the presidency. It goes without saying that such an effort is irresponsible. Senator Frist should not be playing politics with our nation's judiciary.
It has been two years since Mr. Kavanaugh had a hearing. During that first go-round, Mr. Kavanaugh chose evasion over elucidation, refusing to give candid answers about his record and his views. Moreover, since the last hearing, disturbing revelations about Bush administration policies on warrantless wiretapping, torturing military detainees and depriving designated "enemy combatants" of essential legal protections have emerged. These policies were crafted with the assistance of the White House Counsel's office during the time that Mr. Kavanaugh worked there. Yet - surprise, surprise - Senator Frist wants to move forward without having the Judiciary Committee explore whether Mr. Kavanaugh had a hand in developing them.
Fair-minded senators who have expressed concern about these controversial policies should not play along with the majority leader. One would think, after all, that these senators, who are on both sides of the aisle, would view information of Mr. Kavanaugh's role (if any) as having some bearing on his fitness for a lifetime judgeship. You know, the whole "rule of law" thing. Indeed, these same senators have effectively stopped the nomination of Defense Department General Counsel William Haynes to the Fourth Circuit because of Haynes' active involvement in the formulation of detainee policies. Why wouldn't they demand to know whether Mr. Kavanaugh was similarly involved?
Should Senate leadership choose duty over politics and give Mr. Kavanaugh a second hearing, he still has a heavy burden to meet.
The D.C. Circuit is widely viewed as second only to the Supreme Court in influence over law and policy in this country. It establishes precedent in areas of the law of extraordinary concern to all Americans: labor relations, worker safety, consumer safety and environmental protection. Because the Supreme Court hears so few cases, the D.C. Circuit often has the final word on these vital subjects.
The Right has long recognized the significance of the D.C. Circuit. In the final years of the Clinton administration, Senate Republicans successfully blocked two highly qualified nominees - moderates Elena Kagan and Allen Snyder - to keep critical seats open in the hope that a Republican would capture the White House in 2000. They blocked Ms. Kagan and Mr. Snyder because they wanted to prevent a generally conservative court from tacking back to the middle. They are now pushing the 41-year old Kavanaugh because they want to move a generally conservative court even further to the right, jeopardizing enforcement of some of the country's most vital worker, consumer and public health protections.
Few doubt that Mr. Kavanaugh's confirmation would exacerbate the D.C. Circuit's right-wing tilt. With a relatively brief career marked predominantly by partisan loyalty, Mr. Kavanaugh is currently the favored nominee of movement conservatives who have waged a generation-long campaign to transform the law. He has earned their trust by serving this administration in high-level posts from the beginning and by playing a central role, as associate White House counsel, in moving the administration's most ideologically-driven judicial nominations. He also earned their trust prior to his service under President Bush - by drafting and publicly defending, as Kenneth Starr's deputy independent counsel, the thoroughly repudiated articles of impeachment against President Clinton, by devoting his pro bono services in private practice to right-wing causes, and by claiming membership in the arch-conservative Federalist Society.
Democrats should not reward Republican obstructionism during the Clinton years by giving a free pass to Mr. Kavanaugh. This is particularly so given that, as part of the Gang of 14 deal to avert the nuclear option, the Senate already agreed to put the highly controversial Janice Rogers Brown on the D.C. Circuit. Senate Democrats must seriously consider how contrary to their principles it would be to allow two polarizing figures to be confirmed to a court whose enforcement of the law has proven so instrumental in making America a better, safer place for workers and consumers.
The Republican-initiated, decade-long fight over the D.C. Circuit should come to an end. But it can only come to an end with a consensus nominee. Based on what we know so far, Mr. Kavanaugh isn't one.