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.”