Last week’s Senate Judiciary Committee hearings on Brett Kavanaugh’s nomination to the Supreme Court were marked by frustration and prevarication: Frustration on the part of Democrats whose pointed questions to the nominee and calls for documents were largely stonewalled, and prevarication on the part of Kavanaugh who avoided direct answers and made statements that were too often misleading and disingenuous.
Judge Kavanaugh, who serves on the DC Circuit Court of Appeals, told the ranking Democrat, Dianne Feinstein, that he considered the 1973 abortion-rights ruling, Roe v. Wade, to be “settled law.” And he reinforced that time and time again by saying it was a precedent that had been followed by another case that was also a precedent, thus giving the impression that the Roe decision could not be overturned.
But in a 2003 email that was made public during the hearing, Kavanaugh wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court [sic] can always overrule its precedent, and three current Justices on the Court would do so.”
He repeatedly declined to give a direct answer as to how he felt about the decision, or how he might vote if someone asked the Court to overturn it. However, President Trump repeatedly promised to nominate to the Supreme Court someone who would vote to overturn Roe.
Handling Stolen Documents
Kavanaugh said he stood “100%” by the Senate testimony he gave in 2004 and 2006 that he was unaware at the time in the early 2000’s that a Republican staffer, Manuel Miranda, had stolen thousands of documents from the Democratic staff of the Senate Judiciary Committee, which was considering Bush judicial nominations. Kavanaugh’s 2006 testimony affirmed, “I did not know about any memos from the Democratic side. I did not suspect that . . . . Did not know about it, did not suspect it.”
But Miranda emails to Kavanaugh, who was working in the Bush White House, suggest otherwise. Many of Miranda’s emails contain information that he describes as intended to be confidential among Democratic staff.
In one email, dated July 28, 2002 Miranda wrote, “It is important that it be confidential to the recipients of this email… As I mentioned on Friday, Senator Leahy’s staff has distributed a confidential letter to Dem Counsel on Thursday…. Leahy’s staff is only sharing with Democratic counsels…” In yet another email, two days later, Miranda advised Kavanaugh, “I have it on 100% info that Leahy is trying to convene the Dems this afternoon” and he admonished him, “refer only to rumor, not to me.”
The email trail pointing to Kavanaugh’s questionable veracity continues to an email from Miranda marked “highly confidential” that included what appeared to be internal Democratic deliberations of from the staff of Senators Biden and Leahy.
Under blistering questioning by Senator Leahy and with all the evidence to the contrary, Kavanaugh continued to assert ignorance of the stolen documents at the time.
Senator Leahy also challenged Judge Kavanaugh on his 2006 testimony that he had been unaware of the Bush Administration’s warrantless surveillance program, through the National Security Agency, until the information appeared in the press in 2005.
But again, there is evidence that this is not true. In a September 17, 2001 email, Kavanaugh asked a Justice Department lawyer, John Yoo, about the Fourth Amendment implications of “random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” The Judge stood by his 2006 statement that he was not involved.
Role in Confirming Controversial Judicial Nominees
Kavanaugh has minimized and misrepresented the work he did on behalf of three judicial appointees whose questionable views and record made them controversial.
In 2004 testimony, the Judge maintained that he was “not involved” in handling the nomination of William Pryor, who had called Roe v. Wade “the worst abomination of constitutional law in our history.” In last week’s hearing Kavanaugh backed away somewhat from that statement, saying that he was not the “primary person” involved in the nomination. But he should have backed off even more, because newly released emails show that from December 10, 2002 through June 6, 2003, Kavanaugh was heavily involved, communicating with several parties and being invited by an email addressed to the “Pryor Working Group” to participate in a conference call to “discuss Pryor and coordinate plans and efforts.”
Kavanaugh also minimized his role in the nomination of Charles Pickering, Sr., in 2006 stating that the now-retired jurist, who was known for his anti-abortion views and had been accused of “glaring racial insensitivity,” was not one of the nominees that Kavanaugh was “primarily handling.”
But yet again, Kavanaugh has run afoul of evidence that belies his statement, with a series of emails showing him to be extremely active in the nomination, including one from a White House lawyer that cites another person and Kavanaugh as being “much more involved in the Pickering fight.” Other emails have Kavanaugh suggesting talking points for Pickering and stating that he is preparing letters to Senator “Schumer re Pickering.”
Government Treatment of Detainees and Policy on Torture
We saw yet more dissembling regarding Kavanaugh’s role on torture and the judicial nomination of William J. Haynes II, who, while working in the Department of Defense, had authored a memo recommending “enhanced interrogation” methods.
Under direct questioning by Senator Dick Durbin, in 2006, Kavanaugh said that the Haynes nomination “was not one of the nominations that I handled.” And as to torture, “ 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.”
However, there are emails indicating that Kavanaugh was, indeed, involved with the Haynes nomination, in one communication answering “call me” when he was asked who has the questions about Haynes.
And with regard to detention, in a November 2001 email, Kavanaugh answered he “was happy to help out with this on the attorney-client issue” when asked to participate in prepping the Attorney General on such topics as “military tribunals, monitoring of atty/client conversations, racial profiling, etc.”
The Missing Documents
Hanging over the hearings were the millions of documents that had not been turned over to the members of the Committee, the public or the full Senate for review. Those documents that are being released are being vetted by a private attorney and longtime friend of Kavanaugh instead of the National Archives, as is customary.
Senate Democrats have filed a Freedom of Information Act request for some of them, but the question remains: What is being hidden? And why?