OPINION
08/21/2018 05:45 am ET Updated Aug 21, 2018

We Need To Know Brett Kavanaugh's Role In Bush-Era Anti-Gay Marriage Amendment

Lucas Jackson / Reuters

GOP leaders recently decided they wouldn’t request records that Supreme Court nominee Brett Kavanaugh authored, generated or contributed during his time as White House staff secretary under President George W. Bush. And they’re not budging from this position.

Their change in course came after a July 24 meeting between Trump White House counsel Don McGahn and Republicans on the Senate Judiciary Committee, the substance of which isn’t known. 

Last Friday, Sen. Patrick Leahy (D-Vt.) criticized his GOP colleagues for the curious and troubling about-face and took them to task in a letter to McGahn. He asked if McGahn had spoken with Kavanaugh about the records, as well as Bush’s personal attorney, Bill Burck, who is advising the former president on the release of his administration’s documents.

Kavanaugh’s confirmation hearings are expected to start the first week of September.

Democrats have rightly charged that it’s an appalling conflict to have Burck, who worked with Kavanaugh in the Bush administration, overseeing the release of the records. It’s also enormously problematic that Burck is McGahn’s personal attorney as well and is representing him ― in addition to former Trump advisers Reince Priebus and Steve Bannon ― in special counsel Robert Mueller’s probe of the Trump campaign’s possible ties to Russian interference in the 2016 U.S. election.

But the issues don’t end there. As Rachel Maddow noted on Twitter, Leahy also asked if McGahn had “reason to believe any of the records relate” to several pertinent issues, including “a proposed constitutional amendment to define marriage as a union between one man and one woman.”

Leahy’s letter calls into question the roles Kavanaugh and Burck played during the Bush administration and, more specifically, what involvement they had in the constitutional ban on same-sex marriage vigorously promoted by Bush-era Republicans ― a ban the Bush White House came to support in its first term.

Marriage equality and the broader fight for LGBTQ rights are continually put before the Supreme Court today, so it’s crucial for the public to know about Kavanaugh’s past  ― and appropriate for senators to ask questions about it. After all, there’s no way Kavanaugh and Burck, two key figures in the Bush White House, weren’t at the center of discussions about this controversial amendment. 

Kavanaugh began working for the Bush administration in 2001 as an associate to White House counsel Alberto Gonzales. In 2003, he became assistant to the president and White House staff secretary. The Office of the Staff Secretary has been described as the White House’s nerve center, and Kavanaugh’s position included coordinating all documents to and from the White House. In 2003, The New York Times described him “marshaling the fleet of largely conservative judicial nominees [President Bush] has sent to the Senate.” He served as staff secretary until 2006, when the Senate confirmed him to serve on the District of Columbia Circuit after Bush nominated him three years earlier. 

Now, compare Kavanaugh’s resume with what was ― or wasn’t ― happening for marriage equality at that time. GOP lawmakers first introduced a federal marriage amendment in 2002. It failed, but they re-introduced it (and it failed again) each year for the next several years ― including in 2004, when Bush was up for re-election and came out in support of the bill as he was currying evangelical favor in the contest against his Democratic opponent, John Kerry. 

Kavanaugh, as White House staff secretary during that time, was certainly in the thick of these interactions and discussions.

White House aides had been talking about a federal marriage amendment since 2003, and there were media reports that year that Bush’s staff was discussing how to “codify” the president’s opposition to same-sex marriage into law.

At the same time, then-Vice President Dick Cheney, who has a lesbian daughter, was cool to the idea (later saying he didn’t support it), so there was absolutely debate surrounding the issue inside the White House. Pressure was mounting from anti-LGBTQ groups in Bush’s base who believed the president wasn’t adhering to his promises. But some Senate Republicans had reportedly urged Bush not to weigh in on the issue, seeing it as divisive and something that could mire them.

Kavanaugh, as White House staff secretary during that time, was certainly in the thick of these interactions and discussions. After Bush was re-elected, the president continued to give speeches in support of “a ban on same-sex marriage.” And controversy exploded in 2005 over revelations that the administration had paid right-wing columnists to promote its positions on marriage and the family.

By Trumpian standards, this scandal may seem like nothing, but the national uproar lasted for days. Bush was forced to address the issue, publicly urging his Cabinet secretaries to stop paying what amounted to thousands of dollars to radio host and columnist Armstrong Williams and syndicated columnist Mike McManus.

Also on the payroll: Syndicated columnist Maggie Gallagher, who received an additional $20,000 in a federal contract to write a report titled “Can Government Strengthen Marriage?” for a private group. She even testified before Congress promoting Bush’s policies. (In 2007, Gallagher would go on to co-found and lead the National Organization for Marriage, the driving force behind the movement against marriage equality that helped pass California’s Proposition 8 and other statewide gay marriage bans.)

Kavanaugh was there for all of it.

And so was Burck, the man currently overseeing the release of records involving Kavanaugh from that era. By June 2006, when Bush’s White House once again launched what The New York Times described as “a major push for a constitutional amendment banning same-sex marriage, part of a new campaign to appease cultural conservatives,” Burck had been at the White House for over a year; he became deputy counsel to Bush in April 2005. 

Marriage equality is the law of the land today. But it continues to be challenged, not only by those who want to treat gay couples differently, like anti-LGBTQ bakers and other business owners, but by those who want to send the issue back to the states to decide.

Kavanaugh was there for all of it. And so was Bill Burck, the man currently overseeing the release of records involving Kavanaugh from that era.

Justice Neil Gorsuch, Trump’s first appointee to the Supreme Court, has invited state challenges to the Obergefell marriage equality ruling in a recent dissenting opinion. As I’ve noted, Gorsuch revered the late Justice Antonia Scalia, who, like Gorsuch, was an originalist ― believing the Constitution should be followed according to the way its authors wrote it in its time. Justices Samuel Alito and Clarence Thomas are orginalists as well. And so is Kavanaugh, who gave a speech in 2016 calling Scalia a “role model” and “hero.”

In that speech, Kavanaugh also pointed to Scalia’s dissent in Obergefell (Scalia called the ruling a “threat to American democracy”) as an example of what he liked about Scalia’s judicial philosophy. Scalia, he said, viewed the court as having “no legitimate role ... in creating new rights not spelled out in the Constitution.”

So what, exactly, are Republicans afraid the public will see in the Kavanaugh records from the Bush years, when the White House supported and promoted a federal marriage amendment? 

Justice Elena Kagan has previously recused herself from cases that might pertain to her work in the Clinton and Obama administrations. The public knows about those issues because records were released ― at the demand of Senate Republicans ― during her confirmation hearings. And the public should also know which issues Kavanaugh worked on in the Bush White House, how they may relate to cases coming before him, and if he would recuse himself from those cases.

The fact that there are likely hundreds of thousands more pages of records to review with regard to Kavanaugh, which will take more time, is no excuse. This is a lifetime appointment to the highest court in the land. The American public has the right to see how Kavanaugh interacted with, and perhaps weighed in on, one of the most important civil rights issues of our time. 

Michelangelo Signorile is an editor-at-large for HuffPost. Follow him on Twitter at @msignorile.

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