Brett Kavanaugh’s pledge in congressional hearings to be an impartial arbiter of the U.S. Constitution on the Supreme Court is counter to his history of deception as a political operative for President George W. Bush, his record as a judge and even in his personal life.
Right off the bat, the GOP has engaged in a pattern of secrecy, partisanship and rule-bending in the nomination process that should be disqualifying. The skulduggery began when Republican Senate leaders refused to give President Barack Obama’s nominee, Merrick Garland, a hearing on the grounds that it was an election year.
Now, they’ve cast that rule aside and are jamming Kavanaugh’s nomination through the process precisely to evade an election year when Congress is likely to shift to Democratic control.
As part of that process, Republicans have gone out of their way to conceal more than 100,000 pages of documents detailing policy decisions Kavanaugh was involved in during his time in the Bush White House in an effort to obscure his questionable judgment on policy matters.
Some of those “committee confidential” documents released by Democrats are clearly relevant to Kavanaugh’s judicial temperament.
If Kavanaugh had a shred of conscience or integrity, he would refuse to participate in such a sham confirmation. But he doesn’t, and that’s troubling on its face.
As Paul Krugman aptly pointed out in The New York Times, GOP senators “appear terrified for the American people to find out much of anything about him beyond his penchant for coaching girls’ basketball.”
In fact, Kavanaugh even invited his “team” to sit in on the hearings. But if he tried to score political points, the move backfired.
His daughter’s basketball teammates are all white, which shouldn’t come as a surprise, since she is enrolled in a private, religious school that is 90 percent white in a city that is predominantly African-American.
The scene was eyeopening, because Kavanaugh may sit in judgment of Trump Secretary of Education Betsy DeVos’ policies that would not only legitimize private religious schools that discriminate by race, by also shower them with federal funds diverted from the nation’s public schools.
What clearer indication of his true feelings than where he sends his own children to school? But you’d never know it from the hearing.
Kavanaugh called Brown v. Board of Education “the greatest moment in Supreme Court history,” and acknowledged the nation’s efforts to fulfill the landmark civil rights opinion’s promise remain unfinished. “It’s still decades, and we’re still seeking to achieve racial equality,” Kavanaugh said. “The long march for racial equality is not over.”
But it apparently stops at his own doorstep.
Unfortunately, he went unchallenged on that point by committee Democrats. But that was only one small moment of disingenuousness, hypocrisy and dissembling, if not outright lying, on his part during the hearing.
Kavanaugh has been equally disingenuous on another landmark case, Roe v. Wade, which guarantees a womens’ right to control her own body on the extremely private decision to have an abortion.
Although he called the decision an “established precedent,” and even elevated it to a “super-precedent,” he held just the opposite in a 2003 memo leaked to The New York Times. He advised the Bush administration not to call the ruling “settled law.”
Perhaps inadvertently, he drove home his true feelings about abortion when he called contraceptives, “abortion-inducing drugs.” That’s language used by hard-right anti-abortion proponents, who even want birth-control pills outlawed.
Trump, of course, sees Kavanaugh’s appointment as fulfilling his promise to white evangelicals to overturn Roe v. Wade. Trump evangelicals also believe Kavanaugh will roll back LGBTQ rights, including same-sex marriage and discrimination based on religious beliefs.
Kavanaugh even has a broader view of the 2nd Amendment than late Justice Anthony Scalia, who authored the opinion in the landmark gun rights case, District of Columbia v. Heller.
In the ruling, Scalia left the door open to reasonable gun restrictions, including an assault weapons ban. But Kavanaugh believes the 2nd Amendment prohibits any restriction on guns, including military-style assault weapons.
Other justices, notably Clarence Thomas, would go even further. He has argued that the 2nd Amendment gives anyone the unrestricted right to carry a gun in public.
In recent case upholding the District of Columbia’s ban on assault weapons and mandatory gun registration, Kavanaugh was the lone dissenter in a ruling by a three-judge panel. He argued that he would have struck down both the ban on semi-automatic rifles and other registration requirements.
In another glaring moment of disjointedness, Kavanaugh seemed to have a razor sharp memory about even obscure case law, but couldn’t remember key facts about his role in controversial decisions during his time as a White House lawyer in the Bush administration.
Sen. Patrick J. Leahy (D-Vt.) went so far as to call Kavanaugh “not truthful” when he denied knowing he’d received documents stolen from him and other Democrats during the Bush years.
Leahy said that emails disclosed during Kavanaugh’s nomination hearing show Kavanaugh knew, or should have known, that he had received documents that Republican staffer Manual Miranda had stolen from a computer jointly shared with Democrats, according to The Washington Post.
“There were numerous emails sent to him that made it very clear this was stolen information, including a draft letter from me,” Leahy told the newspaper.
During a 2004 hearing on his appointment as a federal judge and a 2006 hearing on his nomination to the DC federal court of appeals, Kavanaugh told Congress, under oath, that he knew nothing about the extensive theft of secret strategy documents from Democratic senators, according to The Times.
He said back then he had no knowledge of Bush’s warrantless wiretapping program, or his policy approving torture in military interrogations. Yet newly released emails show he knew about both before they became public.
He also said he played no role as Bush’s White House lawyer in vetting conservative judicial nominee, William Pryor Jr., who is best known for calling Roe v. Wade “the worst abomination of constitutional law in our history.” To the contrary, emails initially withheld by Senate Republicans show he was deeply involved.
“Kavanaugh should be removed because he was repeatedly asked under oath as part of his 2004 and 2006 confirmation hearings for his position on the U.S. Court of Appeals for the D.C. Circuit about whether he had received such information from Miranda, and each time he falsely denied it,” wrote Lisa Graves, the former chief counsel for nominations for the ranking member of the Senate Judiciary Committee and deputy assistant attorney general in the Department of Justice.
Graves remembers the controversy well. She wrote some of the documents that were stolen, she told Slate.
Kavanaugh’s pledge to be impartial and only call “balls and strikes” on the high court is equally disingenuous. For most of his career he’s been a right-wing ideologue and fiercely partisan. Nothing wold stop him from imposing his right-wing views on the court as a member of the conservative majority.
His partisan zealotry was evident during his tenure on Ken Starr’s investigation of President Bill Clinton. The $80 million, four-and-a-half year “Whitewater” investigation began as a probe of an Arkansas land deal 20 years in Clinton’s past.
It ended after Clinton was caught in a perjury trap involving a civil suit brought by Paula Jones, who accused Clinton of sexually assaulting her. Kavanaugh took lying under oath and obstruction of justice so seriously back then, he strenuously argued for Clinton’s impeachment. Clinton was tried and acquitted in the Senate.
Kavanaugh was also intensely involved into claims that Clinton’s White House deputy counsel Vincent Foster had been murdered for political reasons. In 1995, Kavanaugh provided the legal rationale for Starr to expand the Whitewater probed to included wild conspiracy theories surrounding Foster’s death, even though police had termed it a suicide, according to The Post.
Now, Kavanaugh has been one of the leading jurists who assert that a sitting president should be immune to prosecution of any kind as long as they hold office. That would absolve Trump of any criminal liability in Robert Mueller’s Russia investigation, if a legal challenge reaches the high court. He claims to have had a change of heart in 2009.
But over the course of his testimony, the judge repeatedly declined to answer questions about presidential power, including his views on whether a president could be subpoenaed, fire a prosecutor investigating his actions, or legally pardon himself, according to NBCNews.
Kavanaugh’s partisan zealotry can be traced to the very beginnings of his career.
“Brett and I were part of a close circle of cold, cynical and ambitious hard-right operatives being groomed by GOP elders for much bigger roles in politics, government and media,” writes David Brock, author of five political books and founder Media Matters for America in 2004.
“It’s those controversial associations that should give members of the Senate and the American public serious pause,” he adds. “Kavanaugh played the role of lawyer — one of the sharp young minds recruited by the Federalist Society to infiltrate the federal judiciary with true believers.”
A detailed analysis of Kavanaugh’s own notes from the Starr Investigation reveals he was cherry-picking random bits of information from the Starr investigation — as well as the multiple previous investigations — attempting vainly to legitimize wild right-wing conspiracies. For years he chased down each one of them without regard to the emotional cost to Foster’s family and friends, or even common decency.
“Kavanaugh was not a dispassionate finder of fact but rather an engineer of a political smear campaign. And after decades of that, he expects people to believe he’s changed his stripes,” he adds.
The motives behind the GOP’s effort to pack the court is evident. With a solid conservative majority for decades to come, the court will act as a permanent government, ruling over the land like feudal lords–without regard to legal precedent or “settled law”–outside the control of Congress, the President and voters.
In many respects, the permanent government is already in place.
The so-called “Roberts court,” with its 5-4 Republican-appointed majority, has gone on “partisan excursions through the civil law,” when all five Republican appointees rule on cases without any Democratic appointee joining them, Sen. Sheldon Whitehouse told the committee in his opening statement.
In 73 court cases since Bush appointee John Roberts became chief justice, the 5-4 majority has ruled in favor of big corporate or partisan influencers of the Republican Party 92 percent of the time, he noted.
“Every time a big corporation or partisan interest is involved, the big Republican interest wins… every damned time,” he noted. “They readily overturn precedent, toss out statutes passed by wide bipartisan margins and decide on broad constitutional issues that they need not reach.”
This explains why Republicans want Kavanaugh on the court so badly and why he needs to be rejected by the Senate.