According to his Senate Judiciary Committee questionnaire, Judge Kavanaugh recused himself from 136 cases since joining the D.C. Circuit in 2006.
Unfortunately, he cannot recall the reasoning behind 90, or two-thirds, of them.
So we got to it.
Upon a closer look, though, Fix the Court has been able to determine that these unremembered recusals involve issues like presidential pardons, the Plame affair, the Abramoff case, the 2006 firing of U.S. attorneys and the infamous three to five million lost White House e-mails, meaning Kavanaugh was involved in each of these events to some extent and that he’s likely to be asked several questions during his confirmation hearing on each.
Here’s the larger issue:
Given that issues tend to resurface in federal court, without a full accounting – or even a single sentence – on why a conflict exists and a recusal has occurred, there’s a fair chance a judge or justice will make an error and forget to step aside the next time a conflicting case reaches their court.
Instead, federal courts should consider adopting the practice of appending a few explanatory words to their judges’ and justices’ recusal notices, so that the public can know the jurist took no part in a case, say, “due to a financial interest” or “because the judge was involved at an earlier stage of the litigation.”
With Fix the Court’s ongoing FOIA lawsuit against DOJ on Kavanaugh documents, it’s possible some of these missing recusals will be cleared up once those documents become public, and we expect to start getting documents from the agency beginning Aug. 3.
Here are the case numbers for the issues referenced above:
– Presidential pardons: 09-5337, Lardner v. DOJ
– Plame affair: 07-5257, Wilson v. Libby
– Abramoff scandal: 09-3112, U.S. v Safavian, and 12-5223, CREW v. DOJ
– Firing of U.S. attorneys: 08-5357, Committee on the Judiciary v. Miers
– Lost White House e-mails: 08-5188, CREW v. Office of Administration