Why the Kavanaugh Pick Is Not as Safe as It Seems

Collins and Murkowski aren’t the only Republicans who could balk at Trump’s choice.

July 11, 2018

Cross-posted from Roll Call

It is a memory seared into Brett Kavanaugh’s soul — and it may well be an image that briefly flickers through his mind every time a loud siren goes off in Washington.

In his Monday night East Room debut as Donald Trump’s second Supreme Court nominee, Kavanaugh harked back to working for George W. Bush on 9/11. Introducing his wife, Ashley, Kavanaugh said, “We met in 2001 when we both worked in the White House. Our first date was on Sept. 10, 2001. 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.”

Biography does not automatically explain judicial reasoning. But it is easy to draw connections between Kavanuagh’s experiences in the Bush White House during the worst terrorist attack in American history and the would-be justice’s expansive views of a president’s powers in national security matters.

As a federal court of appeals judge in 2015, Kavanaugh stated in an opinion that the NSA’s collection of cellphone metadata does not violate the Fourth Amendment: “In my view, that critical national security need outweighs the impact on privacy occasioned by this program.”

In similar fashion, Kavanaugh in a 2009 law review article argued for judicial restraint in limiting a president’s war-making powers in all too common situations when Congress has neither blessed the military operation nor disapproved of it. As Kavanaugh wrote, “It is arguably even less appropriate, moreover, for a court to disallow a President’s traditional wartime activity solely on the basis of congressional silence, rather than a written statute.”

Views like these raise the intriguing possibility that Rand Paul — the closest the Senate comes to an actual libertarian — may prove a pivotal figure in the Kavanaugh confirmation fight.

Instead, most of the attention so far has been directed at Susan Collins and Lisa Murkowski, the two GOP senators who support abortion rights.

But Kavanaugh has demonstrated in the past the ability to blur abortion questions.

Pressed by Chuck Schumer for his views on Roe v. Wade at his 2006 confirmation hearing for the court of appeals, Kavanaugh responded, “If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be a binding precedent of the [Supreme] Court.” As for his personal views on Roe, Kavanaugh used the familiar escape hatch, saying, “I don’t think it would be appropriate for me to give a personal view of that case.”

Since Kavanaugh is the type of mainstream conservative Supreme Court justice that President Jeb Bush might have appointed, it seems a stretch to believe that Collins and Murkowski would vote “no” on such a nomination — especially since Kavanaugh is smart enough to come up with some new soothing, but ultimately meaningless, Roe v. Wade wording about his respect for judicial precedents.

But Mitch McConnell was probably correct in warning Trump that the choice of Kavanaugh brings with it more confirmation difficulties than other potential nominees. Part of it is the Rand Paul factor on national security, but equally important are the aspects of Kavanaugh’s lengthy record likely to keep wavering red-state Democrats in the fold.

As Schumer said memorably about Kavanaugh at the 2006 hearing, “From the notorious Starr report to the [2000] Florida recount to [President Bush’s] privilege and secrecy claims ... if there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there.”

It is a weird political strategy for Trump and the Republicans to want to re-litigate the Clinton impeachment saga in which Kavanaugh served as a top prosecutor for independent counsel Kenneth Starr. Many news accounts have stressed that Kavanaugh wrote only the legal portions of the Starr Report and left the salacious details about Clinton’s behavior to others.

But law professor Ken Gormley’s definitive history of the 1998-99 Clinton drama, “The Death of American Virtue,” presents Kavanaugh in a far less high-minded light.

In a memo to Starr just before Clinton’s 1998 deposition, the 33-year-old Kavanaugh wrote, “After reflecting this evening, I am strongly opposed to giving the President any ‘break’ ... unless before his questioning on Monday, he either i). resigns or ii). confesses perjury and issues a public apology to you.” Then, in a helpful gesture, Kavanaugh appended 10 explicit questions for the president, which were as a graphic as anything in the Starr Report.

Of course, Kavanaugh’s views have matured since the days when he rode with Starr in the anti-Clinton posse. In his 2009 law review article, Kavanaugh expressed the newfound belief that a president “should be excused from some of the burdens of ordinary citizenship while serving in office” — minor burdens like “criminal investigations and prosecutions of a President.”

Needless to say, Kavanaugh’s post-Clinton conviction that presidents are too over-burdened to be compelled to testify has an inherent appeal for Trump, especially since stonewalling the Robert Mueller investigation would inevitably lead to a case before the Supreme Court.

The odds remain prodigiously high that Kavanaugh will win a tight Senate vote. But his hearings before the Senate Judiciary Committee will pivot around issues like the Starr Report and Mueller investigation that offer far more inherent drama than the vaporous legal theorizing that accompanied Neil Gorsuch’s 2017 confirmation.

By October, Republicans may wish that Trump — the president who normally defies all standard White House behavior — had made a more unorthodox choice for the Supreme Court.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice

(Image: Wikimedia Commons/Dan Scavino Jr.)