In an email chain addressed to two of his colleagues in March 2001, Brett Kavanaugh, then associate counsel to President George W. Bush, complained to his colleagues about recent press reports characterizing him.
“While you cannot possibly respond to every false statement in the press reports,” Kavanaugh wrote, “you may want to (or at least have the press office do so) point out obvious whoppers to some of these reporters/writers.”
There were two “whoppers” Kavanaugh was referring to.
The first, was that the press was claiming multiple members of the Bush administration had worked for Ken Starr at the Office of the Independent Counsel, when, according to Kavanaugh, he was the only one.
And the second was the notion that he was still a member of the Federalist Society, when he claimed to have resigned.
In an email Kavanaugh wrote, “this may seem technical, but most of us resigned from the Federalist Society before starting work here and are not now members of the Society.”
Kavanaugh was worried that if the press mischaracterized his ties to the Federalist Society it would suggest an “ongoing relationship” with the organization.
In the email chain Kavanaugh wrote, “the reason I (and others) resigned from Fed society was precisely because I did not want anyone to be able to say that I had an ongoing relationship with any group that has a strong interest in the work of this office.”
Given his role in the White House of selecting judges himself, Kavanaugh, President Donald Trump’s nominee for the Supreme Court, might have thought that the optics of being a member of the Federalist Society, an organization that has a distinctive conservative leaning with a special interest in selecting conservative judges to the courts, would hurt his credibility and image.
The Federalist Society was founded in 1982 by conservative students and professors, some of whom believed in originialism, a philosophy tied to the framers view of the Constitution in the 18th century. The group soon emerged as a leading conservative and libertarian voice, urging a limited role for judges in society’s problems. The group became more controversial as it worked closely with Republican administrations to influence the selection of judges. Its leaders advised the George W. Bush administration on appointments and, for Trump, have become an even closer partner in screening candidates for the bench.
Despite what he told colleagues in 2001, when Kavanaugh filled out his Senate Judiciary Questionnaire on July 20, 2018, he wrote that he had been a member of the Federalist Society since 1988 without any gaps in membership.
A source close to Kavanaugh attempted to rectify the discrepancy by confirming that Kavanaugh has been a member of the Federalist Society since 1988 “save for a brief lapse at the beginning of his time in the White House Counsel’s Office,” although the source could not specify an exact time frame. The source said that Kavanaugh canceled his membership early on in his career at the White House when he was under the impression that it was proper procedure to cancel the membership. According to the same source, once Kavanaugh learned that he could continue his membership, he renewed.
After his brief cancellation of membership, Kavanaugh’s email history exposes a close affiliation with the organization. For example, In June 2003, Kavanaugh sent an email to Tim Goeglein, then special assistant to President Bush, asking if the President could speak at the Federalist Society National Convention that year. Kavanaugh is also on email chains discussing upcoming lunches and barbeques hosted by the Federalist Society.
The Federalist Society has played a prominent role in recommending judicial picks to the Trump administration. White House Counsel Don McGahn even announced a revised list of potential nominees to the Supreme Court in a 2017 speech to the group.
In response to Kavanaugh’s 2001 email, Bradford A. Berenson, a colleague of Kavanaugh’s, wrote back and told him that since he only recently left the group and there was a large number of people in the office with either a current or previous affiliation with the organization, Kavanaugh should let it go.
“I think it’s far better to simply give that ‘accusation’ a shrug of the shoulders,” Berenson said.
Instead of taking Berenson’s advice, Kavanaugh suggested they “aggressively” point out the lack of balance in the press by highlighting how many members of the administration were also member of the American Bar Association.