Judge Brett Kavanaugh goes before the Senate Judiciary
Committee on Tuesday for confirmation hearings with what supporters call
the longest paper trail – practically a superhighway – of any federal
judicial nominee, a testament to his enviable insider status in public
and private corridors of Washington power.
That impressive resume has created both political
opportunity and peril, as Senate Democrats have demanded a go-slow
approach so that Kavanaugh's records as a federal judge, White House
staffer and lawyer for Independent Counsel Kenneth Starr can be
thoroughly scoured.
"We don't know if there's some sort of revelatory bombshell," Sen. Richard Blumenthal, D-Conn., said.
But Republicans are confident the 53-year-old judge will be on the bench when the Supreme Court begins its new term Oct. 1.
"Watching this confirmation unfold is like watching the
tortured last moments of a blowout basketball game," said Sen. Orrin
Hatch, R-Utah. "Democrats are down thirty with ten seconds left, but
they keep fouling to stop the shot clock in an attempt to avoid their
inevitable defeat."
"Democrats are down thirty with ten seconds left, but
they keep fouling to stop the shot clock in an attempt to avoid their
inevitable defeat."
- U.S. Sen. Orrin Hatch, R-Utah
An extensive Fox News analysis of Kavanaugh's record on
and off the bench — more than a million pages of speeches, memos, and
rulings — reveals a solid, predictable conservative record.
The National Archives, working with the George W. Bush
Presidential Library, began releasing tens of thousands of pages of
Kavanaugh's past record every few days this month. But officials admit
they will not be able to produce all the documentation until late
October, weeks after the nominee's Senate hearings, floor vote and
potential swearing-in as the 114th justice.
Some Senate progressives had initially declared a
boycott -- refusing to meet personally with the nominee before the
hearings -- as a protest over access to his papers. But that solidarity
collapsed, and Senate Minority Leader Charles Schumer has shifted
strategy, warning, "We stand ready to sue the National Archives for
Judge Kavanaugh’s full records if necessary."
Republicans say the judge's views are being distorted and his record has earned bipartisan praise.
But it is a long, dense record, including:
- Private legal work on the case of Cuban refugee Elian Gonzalez
- Three years on the Starr staff, including writing major portions of
the so-called "Starr Report" to Congress outlining grounds for
impeachment against then-President Bill Clinton
- Preparing legal appeals during the 2000 Bush v. Gore presidential election dispute
- Five years as a top Bush White House lawyer
- 12 years as a federal appeals court judge
"There has been quite an extensive record," said
Jennifer Mascott, Kavanaugh's first law clerk hire and now a professor
at George Mason University's Antonin Scalia Law School. "But if someone
is really looking for what will give us the best sense of how Judge
Kavanaugh will rule were he to be confirmed, it would be looking at his
opinions.”
The Gatekeeper
Despite clerking for his mentor, Justice Anthony
Kennedy, Kavanaugh sees his five years as a White House aide to
President George W. Bush from 2001-2006, as the ideal training ground
for his judicial job.
Much of that time he was staff secretary, the person
who manages the daily paper and policy flow to the president, including
documents circulated among senior staff for comment. It is a crucial, if
largely thankless, job.
"It was important that I maintain strict neutrality and
impartiality in that role, so that the president and his policy staff
would have confidence that their concern would be presented to the
president fairly," he has said, adding that the experience "helped make
me a better student of the administrative process, a better interpreter
of statutes."
He was in that role for a range of major events and debates, from Hurricane Katrina to moves to expand Medicare.
Most controversial, at least for Kavanaugh's future
endeavors, was the internal debate over the administration’s initial
endorsement of "enhanced interrogation" of suspected terrorists held
overseas.
"I was not involved and am not involved in the
questions about the rules governing detention of combatants," he
testified at his 2006 confirmation hearing for his current seat on the
D.C.-based U.S. Court of Appeals.
But newly released emails from his White House service
include a Nov. 19, 2001 memo, cryptically suggesting he would be "happy
to help" prepare then-Attorney General John Ashcroft explain post-9/11
policy allowing secret surveillance of contacts between some terrorist
suspects and their defense lawyers, without any court order.
Democrats will want to know the extent of Kavanaugh's
involvement in, or understanding of, the administration's evolving
anti-terror policies. But his backers note this particular email came
before the detention policies at Guantanamo were imposed.
The Investigator
Before his job as staff secretary, Kavanaugh was
associate counsel in the Office of the Independent Counsel during the
Clinton probe, and Starr told Fox News his protégé served as a trusted
adviser.
At the time, the investigation had advanced far beyond
its initial look at Arkansas real estate deals. But Kavanaugh recognized
that the president, in his view, had broken the law by committing
perjury.
An August 1998 email titled "Slack for the President?" was written just two days before Clinton would give grand jury testimony about his relationship with Monica Lewinsky.
"The president has disgraced his Office, the legal
system, and the American people by having sex with a 22-year-old intern
and turning her life into a shambles," he wrote, accusing the White
House of "a sustained propaganda campaign that would make [former
president] Nixon blush."
The then 33-year-old lawyer said while he respected the
office of the president and tried to be fair, he could offer no defense
for Clinton’s public and private behavior, and now "the Congress can
decide whether the interests of the Presidency would be best served by
having a new President."
Less than a month after that memo, the "Starr report"
would form the investigative basis of the GOP-controlled House of
Representatives' impeachment of the president, a national drama that
ended with the Senate's acquittal.
The episode is likely to be revisited at the
confirmation hearings, but the nominee has long defended his then-boss,
and the investigation itself.
But a 2008
lecture,
which he wrote while a judge, suggested -- as a policy, not legal
matter -- sitting presidents should be immune from congressional
investigations and prosecution while in office and "should be excused
from some of the burdens of ordinary citizenship while serving in
office." He added, "A President who is concerned about an ongoing
criminal investigation is almost inevitably going to do a worse job as
President."
Some Hillary Clinton supporters have privately lamented
the irony: a lawyer who helped aggressively investigate her husband two
decades ago is now poised to sit on the Supreme Court, a nomination she
would have made if the 2016 election had turned out differently.
Getting Ready
In an isolated area of the Eisenhower Executive Office
Building in the White House complex, Kavanaugh has spent the past few
days being put through the rhetorical ringer. For hours on end, he sits
alone at a table, peppered with questions about his personal and
professional record, all in an effort to see if he will crack under the
pressure.
The informal, but intrusive prep sessions are known as
"murder boards," for their intensity, designed to simulate what the
53-year-old nominee to the Supreme Court will face this week in his
Senate confirmation hearings. Democrats hope any public mistakes can pay
political dividends in coming weeks.
"If you’re in the Democrats' position, you have no
ammunition except obstruction," said Edward Whelan, president of the
conservative Ethics and Public Policy Center. "Maybe they hope they win
control of the Senate in November, and are able to keep things from
happening until January. From their perspective, obstruction is all
upside."
"If you’re in the Democrats' position, you have no
ammunition except obstruction. Maybe they hope they win control of the
Senate in November, and are able to keep things from happening until
January. From their perspective, obstruction is all upside."
- Edward Whelan, president, Ethics and Public Policy Center
Sources say the mock questions have focused equally on his work in the judicial and executive branches.
The stakes are enormous, not only for the nominee but
also for the man who selected him from an evolving list of 25 possibles
first announced during the presidential campaign. Aides say President
Trump hopes a successful confirmation will build momentum for his
separate midterm political agenda, and bring a measure of stability and
public confidence to what has been a challenging 20 months in office.
In the broader realm, filling the seat left by the
retirement of Kennedy would solidify the high court's current, shaky
right-leaning majority. Having that fifth reliable conservative vote
would help guide the administration as it makes strategic decisions
about which high-profile issues to pursue in court -- like immigration,
the environment, transgender rights and expanded executive authority.
"It's important Democrats and Republicans not roll over
on this pick," said Elizabeth Wydra, president of the left-leaning
Constitutional Accountability Center. "The American people want their
justices to be an independent check even to the president nominating
you, to follow the Constitution, not their own political values."
But liberal advocacy groups have all but abandoned
efforts to defeat Kavanaugh through public opinion, with scant paid
issue advertising. Many progressives lament Democratic senators have
been distracted by other ideological fights as the midterm election
approaches, with most of the rhetorical fire aimed at Trump himself.
But the hearings could still be dramatic.
Senate sources say Democrats will focus much of their
attention on seeking Kavanaugh's views on presidential power, with the
possibility he could decide any challenges to the ongoing special
counsel probe of Russian interference in the 2016 election.
"Look, it is not a done deal," said Sen. Elizabeth
Warren, D-Mass., vowing to continue opposing Kavanaugh. "Donald Trump
has made his nomination. And he picks somebody off a list that has been
prescreened, prescreened by not one but two right-wing extremist
groups."
Along with his courtesy visits to 65 senators of the
Senate who will decide his fate, Kavanaugh has prepared for the
spotlight by reviewing his own record, and enduring those closely
guarded mock hearings.
The private rehearsals are coordinated by the White
House Counsel's Office and include more than a dozen participants --
government lawyers, conservative academics, some of his former law
clerks, even four senators. The goal is to anticipate every possible
line of questioning and danger zone -- to give measured answers but not
reveal too much.
Sources say Kavanaugh has settled in being himself,
avoiding unscripted responses that might provide the televised
"soundbite" to derail what has so far been a flawless confirmation
journey. Administration officials are privately confident he will shine
in the hearings.
Supporters point to his smooth handling in the face of
withering Democratic opposition when he was nominated for his current
seat on the Washington-based federal appeals court.
