When Supreme Court nominee Brett Kavanaugh sits for his confirmation hearing this week, Democratic senators will pick up where they left off more than a decade ago, when the then-staff secretary for President George W. Bush was up for a seat on a powerful DC appellate court.
Back then, Sen. Chuck Schumer, of New York, then also in the minority, led the charge criticizing Kavanaugh.
“We feel that the nominee is not apolitical enough, not seasoned enough, not independent enough and has not been forthcoming enough,” Schumer said.
Many of the same players have now returned, although much has changed. Schumer, no longer on the Senate Judiciary Committee, is the Senate minority leader and hopes to block Kavanaugh’s confirmation to the nation’s highest court.
Meanwhile, Kavanaugh has issued some 300 opinions from the US Court of Appeals for the District of Columbia Circuit, to which he was ultimately confirmed, making him immune from accusations that he has no judicial experience.
Some Democrats, triggered by hundreds of thousands of newly released documents from the Bush library, are eager to return to Kavanaugh’s White House years to further probe his service there and question whether his congressional testimony in 2006 was fully transparent. They could delve into such issues as the war on terrorism, the controversial use of signing statements, Kavanaugh’s work on judicial nominees, and executive orders – highlighting the conservative credentials of a nominee who they fear could solidify the rightward tilt of the Supreme Court for decades.
When he accepted his nomination to the Supreme Court in July, Kavanaugh recalled that he had had his first date with his future wife, Ashley, the day before the Sept. 11, 2001, terrorist attacks.
“The next morning, I was a few steps behind her as the Secret Service shouted at all of us to sprint out the front gates of the White House, because there was an inbound plane,” Kavanaugh told the audience assembled at the White House.
The Sept. 11 attacks would go on to define much of the Bush administration, and Kavanaugh would go from working in the White House Counsel’s Office to becoming the staff secretary.
In 2003, Bush nominated Kavanaugh for a seat on the DC appellate court, and Kavanaugh had an initial hearing in 2004. But his nomination stalled – blocked from a vote along with other judicial appointments in the run-up to the presidential election – and afterward, Democrats filibustered judicial nominees.
In 2006, Kavanaugh received a second hearing, and senators zeroed in on issues related to the war on terrorism.
Democratic Sen. Dick Durbin, of Illinois, asked Kavanaugh what role he played at a time when the White House was grappling with issues such as the infamous “torture memos” concerning detention and interrogation policies.
Durbin noted that the committee had confirmed Jay Bybee, a former assistant attorney general at the Department of Justice, to a seat on the 9th US Circuit Court of Appeals in 2003 only to learn later that he had signed the 2002 “torture memos” the Bush administration used to justify so-called enhanced interrogation techniques against suspected al Qaeda operatives.
The primary memo, titled “Standards of Conduct for Interrogation under 18 U.S.C. (sections) 2340-2340A,” stated that while a “significant range of acts” might be considered cruel, inhuman or degrading treatment, such acts did not rise to the level of torture.
“Did you know that Mr. Bybee authored the torture memo or similar memos at the time of his nomination?” Durbin asked Kavanaugh.
“No, Senator,” Kavanaugh responded. “I was not aware of that memo until there was public disclosure of it in the news media.” He added that the administration had later repealed the memo. “I agree with that decision,” he said, adding, “I do not believe the analysis in that memo was correct.”
Durbin also wanted to know what role Kavanaugh had played in nominating William J. Haynes II to the 4th US Circuit Court of Appeals, given that much of Kavanaugh’s portfolio was dedicated to judicial nominations. Haynes, as general counsel to the Department of Defense, had penned a memo on “counter-resistance techniques” recommending the authorization of some enhanced interrogation methods.
“At the time of the Haynes nomination, what did you know about Mr. Haynes’ role in crafting the administration’s detention and interrogation policies?” Durbin asked.
“Senator, I did not – I was not involved and am not involved in the questions about the rules governing detention of combatants or – and so I do not have the involvement with that,” Kavanaugh said. “And with respect to Mr. Haynes’ nomination, I’ve – I know Jim Haynes, but it was not one of the nominations that I handled.”
After Kavanaugh’s confirmation, however, The Washington Post published a blockbuster report in June 2007 about a disagreement within the administration over whether enemy combatants should have access to lawyers. The article said Kavanaugh and associate White House counsel Bradford A. Berenson – both former clerks to Justice Anthony Kennedy – had argued that Kennedy, whose vote could be key if the issue ever went to the Supreme Court, would “never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up” without access to an attorney.
The day after publication, Durbin fired off a letter to Kavanaugh saying that in light of the Post’s story, Kavanaugh’s sworn testimony appeared “inaccurate and misleading.”
According to Durbin, Kavanaugh never responded. After President Donald Trump nominated Kavanaugh for the Supreme Court, Durbin posted a copy of his letter on Twitter, writing, “In 2007 I sent Brett Kavanaugh this letter asking to explain his inaccurate and misleading testimony to the Senate Judiciary Committee. I’m still waiting for an answer.”
Back then, Durbin was not the only one who was concerned about Kavanaugh’s testimony before the committee. Sen. Patrick Leahy, a Vermont Democrat, penned a separate letter to then-Attorney General Alberto Gonzales asking whether Kavanaugh had “falsely testified.”
But according to a participant in the White House discussion in 2002, Kavanaugh was brought in to focus solely on the issue of access to counsel and whether detainees should be afforded the ability to consult with lawyers. He was asked to participate because of his familiarity with how Kennedy might view the issue if it ultimately came before him, the source said.
Kavanaugh did not discuss the broader issue of presidential power to detain suspected terrorists under the laws of war, according to the source.
“To my knowledge, Kavanaugh was never responsible for handling any issues related to detainee treatments in the White House,” the source said. “He participated in this meeting as a former Kennedy clerk to help assess how the Supreme Court might rule on this narrow issue pertaining to the right to counsel.”
In March 2008, Brian Benczkowski, then principal deputy assistant attorney general, responded to Leahy about allegations that Kavanaugh had made false statements.
“The Public Integrity Section of the Criminal Division reviewed this matter and determined that there was not a sufficient basis to initiate a criminal investigation,” he said.
Leading up to this week’s hearing, Raj Shah, a White House spokesman, charged Durbin with being “deliberately misleading” about Kavanaugh’s testimony.
Shah said Durbin had asked Kavanaugh about his involvement in drafting specific legal memorandums.
“At no point did Sen. Durbin ask the judge about other legal issues pertaining to the war on terrorism, such as detainee’s legal rights,” he said.
And Gonzales, who before becoming attorney general had served as White House counsel and was Kavanaugh’s boss at the time of the discussion in question, said in a statement last month that only a “limited number of personnel” were read into the sensitive legal issues surrounding the authorization of the use of enhanced interrogation techniques on high-value detainees.
During his 2006 confirmation hearing, senators pressed Kavanaugh on his knowledge of Bush’s aggressive use of signing statements – pronouncements a president can issue upon the signing of laws. The statements are controversial because critics believe they are a way for presidents to bypass provisions they disagree with.
In particular, Bush came under criticism for a signing statement on a 2006 defense spending bill, which included an amendment by Sen. John McCain that protected against the torture or inhumane treatment of detainees. Bush’s statement said he would interpret limits on interrogation techniques in the context of his constitutional authority to protect the nation’s security.
Then-Judiciary Chairman Arlen Specter, of Pennsylvania, questioned Kavanaugh about his role in signing statements. “Do you have anything to do with the President’s policy on so-called signing statements?” he asked.
“I help ensure that relevant members of the administration have provided input on the signing statements,” Kavanaugh replied, adding, “I do help clear those before the President sees them.”
When Leahy brought up the McCain amendment, Kavanaugh said, “I believe, the signing statement identified, that this fell into something that the President has authority on.”
The documents related to Kavanaugh’s service that have been released so far haven’t revealed much about his role in presidential signing statements, but he has addressed the issue since becoming a judge.
In a speech at Case Western Reserve University School of Law in 2013, Kavanaugh was asked whether signing statements allowed a president to ignore provisions in laws they think are unconstitutional.
Kavanaugh said such statements are the “traditional exercise” of presidential power, but he stressed that an injured party may take his grievance to court if he believes the president is not following the law.
In an opinion in Aiken County v. State of Nevada that same year, Kavanaugh wrote that “if the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise. But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”
Although Democratic senators have complained that they want to know more about the signing statements Kavanaugh would have worked on as White House staff secretary, the current Judiciary Committee chairman, Chuck Grassley, of Iowa, has refused to release documents from that time frame.
Warrantless surveillance of US citizens
At the 2006 hearing, Leahy also asked Kavanaugh about his knowledge of a controversial Bush administration program that authorized the National Security Agency to conduct surveillance on people in the United States, including US citizens, when gathering intelligence on foreigners.
The New York Times had broken the news about the existence of the program on Dec. 16, 2005, reporting that months after the Sept. 11 attacks, Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without court-approved warrants.
“Did you see documents relating to the President’s NSA warrantless wiretapping program?” Leahy asked.
“Senator, I learned of that program when there was a New York Times story – reports of that program – when there was a New York Times story that came over the wire, I think on a Thursday night in mid-December of last year,” Kavanaugh replied. He said definitively that he knew “nothing at all” about the program.
Recently released documents show that Kavanaugh was asked about talking points “for the legal authority for the NSA activities” on Dec. 19, 2005, but that was days after the program had become public.
During Kavanaugh’s stalled 2004 confirmation hearing, Leahy asked him about his involvement in offering a bill to Congress after Sept. 11 that protected the airline industry from having to take responsibility for the terrorist attacks.
The senator noted that when the bill first came up, it had no compensation for victims of the attacks.
“It had immunization for the airlines, nothing for the victims,” Leahy said, noting that the legislation ultimately provided for both.
He pressed Kavanaugh on why the early version of the law did not include compensation.
“You vehemently opposed any compensation for the victims’ families,” Leahy said, adding, “You insisted the bill only limit the liability of the airline industry.”
Kavanaugh pushed back, arguing that there were “two separate issues”: one concerned the airlines’ liability, and the second compensation for victims.
“The two ultimately got linked in the same bill,” he said.
Kavanaugh concluded, “I do not remember opposing linkage of the two bills.”
Executive privilege on presidential records
Kavanaugh is credited with authoring Executive Order 13233, which granted Bush an unprecedented amount of executive privilege and privacy regarding presidential records (a move later revoked by President Barack Obama with Executive Order 13489).
Leahy asked Kavanaugh about his involvement in drafting the order in 2004.
“After the order was issued, a number of historians, public interest organizations, opposed the change,” Leahy said. “The Republican-led House Committee on Government Reform approved a bill to reverse this. A lawsuit to overturn it was filed by Public Citizen, American Historical Association, Organization of American Historians and a number of others. Why did you favor an increase in the secrecy of presidential records?”
“Senator, with respect to President Bush’s executive order, I think I want to clarify how you described it,” Kavanaugh replied. “It was an order that merely set forth the procedures for assertion of privilege by a former President.” He defended his actions by saying that “the goal of the order was merely to set forth procedures.”
Judicial nominations are another likely area of contention for Kavanaugh’s confirmation. During his tenure at the White House, he worked on the confirmation of lower court judges, but he was also there for the nominations of John Roberts, Harriet Miers (later withdrawn) and Samuel Alito to the Supreme Court.
On Friday, Grassley was informed that the White House had concluded that any documents reflecting Kavanaugh’s “deliberations and candid advice concerning the selection and nomination of judicial candidates” were covered by constitutional privilege and would not be released.
The White House’s refusal to release documents on one of Kavanaugh’s core responsibilities, and Grassley’s refusal to release documents from the nominee’s service from 2003 to 20006, means this issue and others, like what Kavanaugh’s actions were during the response to Hurricane Katrina, will not be made public.