WASHINGTON—As federal appellate judge Brett Kavanaugh makes the rounds, lobbying senators for a seat on the U.S. Supreme Court, lawmakers are questioning his right-wing views on key issues—such as women’s right to reproductive choice and a worker’s right to unionize.
Don’t be surprised if Kavanaugh ducks, bobs, and weaves. So politicians might be better off asking him to explain his record, or lack thereof, before he joined the U.S. Court of Appeals for D.C. a dozen years ago.
Because the Senate debate on his nomination then shows Brett Kavanaugh was—in so many words—a Republican political hack, with little actual trial experience whatsoever: Five trials in 10 years, and only two on which he led the lawyers’ team. Of course, when asked about that, Kavanaugh did some ducking and bobbing before that discussion, too.
The result? “The nomination of Brett Kavanaugh is a political gift for his loyal service to this president”—Republican George W. Bush—“and his political party,” Sen. Dick Durbin, D-Ill., concluded then.
“Mr. Kavanaugh is not being given an engraved plaque for his fine service. He is being given a lifetime appointment to the second highest court in the land. By every indication, Brett Kavanaugh will make this judgeship a gift that keeps on giving to his political patrons who have rewarded him richly.”
Kavanaugh’s partisanship and lack of legal experience were so obvious that the AFL-CIO, the Leadership Conference on Civil Rights, the NAACP, the National Urban League, the United Auto Workers, and other organizations opposed him even then, which then-Sen. Edward Kennedy, D-Mass., noted. Those organizations usually weigh in only on Supreme Court seats, not on lower court judgeships.
Yet despite those warning flags, 53 Senate Republicans and four Democrats voted in 2006 to put Kavanaugh on that court, often called the second-most-powerful court in the country. Thirty-seven Democrats opposed him, while six Dems and a Republican were absent.
The only pro-Kavanaugh Democrat still in the Senate, Delaware’s Thomas Carper, didn’t speak during the debate then. But Carper made it clear after Trump’s nod that he’s dead set against putting Kavanaugh on the High Court now.
“In the years Judge Kavanaugh has served on the D.C. Circuit Court of Appeals, he has revealed his true colors and his substantial record…has proven to be a profound disappointment,” Carper said. “Picking a nominee to fill a vacancy on the Supreme Court is not a reality show. It should not be a choice outsourced to ideologues like those at the Heritage Foundation and The Federalist Society.”
The other Democrats during that debate in May 2006 revealed Kavanaugh’s partisanship, always at the beck and call of his GOP bosses, especially presidential candidate, and later president, Bush.
The senators noted then the only lawyer with less trial experience than Kavanaugh before he joined the D.C. Circuit was a man Kavanaugh later worked for: Ken Starr, notoriously infamous as the creator of the impeachment charges against Democratic President Bill Clinton.
Kavanaugh worked on the Starr Report, too, senators said then. But that’s not all. At least one senator noted Kavanaugh was part of Bush’s legal team, after the controversial November 2000 election, that headed to Florida to stop the recount there. Courtesy of the Supreme Court, the halted recount eventually handed Florida—and thus the White House—to Bush.
“Mr. Kavanaugh is a nice young man who was nominated for the U.S. Court of Appeals for the District of Columbia Circuit after working for most of his career in behalf of the Bush-Cheney administration and the Republican Party in partisan, political jobs,” Sen. Mark Dayton, DFL-Minn., said then. Kavanaugh was 41 at the time.
“We have to be able to assure the American people the judges confirmed to lifetime appointments to the highest courts in this country are being appointed fairly to protect their interests, rather than to be a rubberstamp for whichever president nominated them,” Dayton, now Minnesota’s governor, said.
Besides the Starr report and service as Bush’s staff secretary, other senators detailed other partisan tasks Kavanaugh undertook:
– Kennedy pointed out Kavanaugh is totally unfamiliar with labor law—a point that’s become even more important under Trump. The Trump administration sided, strongly, with the right-wing corporate interests that pushed the Janus case. And federal worker unions are challenging Trump’s three anti-worker executive orders in U.S. District Court in D.C., in a hearing scheduled for July 25.
“The D.C. Circuit has a key role in upholding the rights of American workers. That court decides far more appeals than any other circuit of decisions by the National Labor Relations Board on unfair labor practices. Usually, these cases are filed by employers across the country attempting to overturn unfair labor practice findings against them,” Kennedy said then.
“During our” Senate Judiciary Committee hearings on Kavanaugh then, “I asked Mr. Kavanaugh whether he had any experience handling labor law matters. He couldn’t provide a single example of work in this area, not one. Instead, he made vague reference to his work as a law clerk and his brief time in the Justice Department.”
“These aren’t arcane concerns,” Kennedy noted.
– As a member of Bush’s White House counsel’s office, Kavanaugh helped draft the record 750 “signing statements” Bush issued when he signed laws Congress passed but he partially disliked. In so many words, Bush said in each that he would not enforce the sections he hated.
– Again in Bush’s counsel’s office, Dayton noted, Kavanaugh helped craft and implement what Dayton called “the White House’s overbearing secrecy policy.”
“So now we are spending billions of dollars in marking things ‘top secret,’ some of which were on government websites for long periods of time until they”—Bush officials—“realized they were pointing out embarrassing mistakes in the Bush-Cheney administration. So they yanked” that data “off and marked it ‘top secret.’”
– Kavanaugh showed undue deference to the president. Kennedy noted the D.C. Circuit Court rules on Clean Air Act and Clean Water Act cases. Those decisions now often wind up at the Supreme Court.
The D.C. Circuit, the senator said, “is the only federal court that can grant a remedy when the executive branch fails…to protect the environment under these laws. Nothing in Mr. Kavanaugh’s record suggests he would be willing to keep the executive branch in compliance with the law on these matters.”
“More generally, nothing in his record suggests he would be able to avoid the partisanship and politics that have marked his (then) brief career.” Other senators noted Kavanaugh never opposed any of Bush’s judicial nominees, virtually all of whom were conservatives, if not hyper-right-wing.
– Kavanaugh’s partisanship extended to Bush’s Iraq war tactics. “As an Associate White House Counsel, Mr. Kavanaugh worked to support the nomination and confirmation of Jay Bybee, the author of the notorious—but then still secret—torture memo” for Bush, Kennedy added.
– Kavanaugh’s peers in the American Bar Association were lukewarm about his nomination. Most called him “qualified” for the circuit court, rather than well-qualified, 12 years ago. But some comments were scathing. The lawyers’ group has yet to comment on the Kavanaugh nomination to the Supreme Court.
“One interviewee called Mr. Kavanaugh ‘insulated,’” Durbin reported. “Another person said Mr. Kavanaugh is ‘immovable and very stubborn and frustrating to deal with on some issues.’”
“Is that what we are looking for in a judge, an insulated person, immovable and stubborn, who dissembles when he is in the courtroom and has a sanctimonious way about him? I can tell you, as a practicing lawyer, that is a judge I would avoid, and most people would avoid nominating that kind of lawyer to become a judge,” Durbin concluded.
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