Every Supreme Court confirmation tells a story, with themes and characters like a Leo Tolstoy or Winston Groom novel.
SYNOPSIS: With the nomination of Brett Kavanaugh, the themes are clear: a deeply intelligent, deeply conservative federal judge who will move the court’s jurisprudence to the right. Dems object to his views on choice and executive power and will lose their tongues denigrating the Federalist Society even though, given the associations of White House occupant, it could be so much worse.
CHARACTERS: In the White House Counsel’s Office, Kavanaugh was one of the “ten little Indians” who worked under Al Gonzales, the Bush official who, among other lowlights, ensured detainees would be “enemy combatants” and thereby in his view removed from the laws of war, and with John Yoo and Jay Bybee, who took that designation and made the case that torture was legal. In spite of zero documents released on the Scooter Libby litigation and the firing of U.S. attorneys, one can assume Kavanaugh worked on those topics while staff secretary, thanks to his list of D.C. Circuit recusals, and he had a hand in the Abramoff and DeLay scandals fallout while in the WHCO (which do appear in his emails). And of course there’s a Merrick Garland angle: Kavanaugh was scheduled to take over the role of chief judge of the D.C. Circuit in 2020, since that position has a seven-year term limit.
THEMES: From his e-mails, we know that Kavanaugh thought that donation “limits [to candidates] have some constitutional problems” supported winding down government-backed affirmation action. Though his views on the unitary executive trouble many Democrats, Kavanaugh hasn’t ever heard a case brought by Mueller against Trump, so some Dems’ insistence on a blanket recusal in that matter rings hollow. The once-associate OIC counsel pushed hard on the Foster death inquiry but unlike many in his party didn’t end his investigation by donning a tin foil hat. He won’t overturn Roe, because there won’t be a Roe II, but all indications – the FedSoc litmus test, the Garza hearing, the praise for the Roe dissent, etc. – point to a “things have changed [in the South]” moment that could kill reproductive choice by 1,000 cuts.
PLOT: This week is primarily a story about math and secrets. Republicans are claiming this is most transparent hearing ever. That is a lie and should be called as much. This confirmation has the fewest percentage of documents released of any in recent memory. The few from his time as staff secretary that have been released – thanks, in part, to Fix the Court’s May 2017 FOIAs and July 2018 lawsuits – show us that Kavanaugh worked on impactful topics, including warrantless wiretapping, so it’s clear why Republicans would want to keep these files secret. The other number, of course, is 50: Dems can’t beat a united GOP caucus.
P.S.: Look for senators from both parties to ask Kavanaugh about live audio (and not cameras); beefing up ethics and recusal requirements for the justices; whether he’d be willing to cross party lines, so to speak, and address liberal audiences; and why he recently joined the D.C. Circuit Wellness Committee, a new group (and FTC “fix”) that helps ensure judges maintain cognitive health as they age.