EPPC President Ed Whelan is offering running commentary in support of the confirmation of Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. Mr. Whelan, a former law clerk to Justice Antonin Scalia, is a regular contributor to National Review Online’s Bench Memos blog. [Click here to view Mr. Whelan’s full bio and past publications.]



VIDEO: Ed Whelan on Fox News Channel’s Special Report on Kavanaugh Documents, Confirmation Hearing / August 3, 2018

VIDEO: Ed Whelan on Fox Business Network’s “Making Money with Charles Payne” / July 10, 2018

VIDEO: Ed Whelan on MSNBC Live with Katy Tur / July 10, 2018

VIDEO: Ed Whelan on Fox Business Network’s “Cavuto: Coast to Coast” / July 9, 2018

VIDEO: Ed Whelan on Fox News Channel’s “The Next Revolution with Steve Hilton” / July 8, 2018

VIDEO: Ed Whelan on Fox Business Network’s “Cavuto: Coast to Coast” / June 28, 2018

AUDIO: Ed Whelan on National Review’s “The Editors” podcast / June 28, 2018

VIDEO: Ed Whelan on Fox News Channel’s “The Ingraham Angle” / June 27, 2018

A Compendium on the Kavanaugh Nomination

Selected Publications

Below is an index to a selection of Mr. Whelan’s commentary from NRO on the Kavanaugh nomination, followed by the full text of the posts:

Trump Picks Brett Kavanaugh

July 9, 2018 (link)

Congratulations to President Trump on his decision to nominate D.C. Circuit judge Brett M. Kavanaugh to the Supreme Court. I very much look forward to Justice Kavanaugh.

Judge Kavanaugh, 53 years old, has compiled an outstanding record during his twelve years on the federal court of appeals in D.C. On what is commonly regarded as the second-most-important court in the country, he has confronted a vast array of consequential constitutional and statutory issues and has written strong, influential opinions. His positions in numerous dissents were later adopted by Supreme Court majorities.

Judge Kavanaugh has been selected to fill the seat of retiring Justice Anthony Kennedy, for whom he clerked — along with Neil Gorsuch — 25 years ago. A graduate of Yale College and Yale Law School, Kavanaugh has dedicated his career to public service. He worked for several years in the Office of Independent Counsel under Ken Starr and then for five years in the White House of President George W. Bush, first in the White House counsel’s office and then in the role of staff secretary. During an interlude in private practice, he headed the Federalist Society’s Religious Liberties Practice Group and wrote two pro bono Supreme Court amicus briefs in support of the cause of religious liberty.

Kavanaugh is a lector at his Catholic parish, where he also coaches his daughters’ CYO basketball teams. He also volunteers with Catholic charities and teaches and mentors in local schools. He is as fit off the court as he is on it: The former captain of his high-school basketball team runs regularly and has won his court’s annual 5-K five times.

Here is an introduction to Kavanaugh’s judicial record:

Taming the administrative state. The D.C. Circuit has a particularly heavy caseload in the field of administrative law, and Judge Kavanaugh has won high marks for restraining the administrative state within legal bounds.

Kavanaugh is a strong critic of the Chevron principle of deference to administrative agencies — both of the foundation of that principle and of the manner in which it is often exercised. He has earned acclaim for “cabining” the Chevron doctrine by helping to develop an exception to it for “major questions” of policy.

In one of his early dissents, Kavanaugh argued that limitations on the president’s ability to remove the members of the Public Company Accounting Oversight Board violated the president’s executive authority. Invoking the principles of originalism advocated by Justice Scalia and Justice Thomas, Kavanaugh emphasized that “the constitutional text and the original understanding . . . are essential to proper interpretation of our enduring Constitution.” Two years later, when the Supreme Court embraced Kavanaugh’s dissent, Scalia and Thomas were part of the five-justice majority.

In a dissent earlier this year, Kavanaugh found the structure of the Consumer Financial Protection Bureau (a creation of the Dodd-Frank Act of 2010) to be unconstitutional. The concentration of power in, and the resulting threat to liberty from, so-called independent agencies within the executive branch — independent, that is, of the supervision and control of the president — have been tolerated because such agencies “divide and disperse power across multiple commissioners or board members.” But, Kavanaugh determined, the CFPB poses an unprecedented threat, as it is headed by a single unaccountable individual.

Enforcing the Second Amendment. Kavanaugh argued (in dissent) that the District of Columbia’s ban on possession of most semi-automatic weapons and its registration requirement for all guns violated the Second Amendment.

Protecting religious liberty. Kavanaugh argued (in Priests for Life v. HHS, again in dissent) that the HHS contraceptive mandate violated the religious-liberty rights of objecting religious organizations. He also rejected an Establishment Clause challenge to the prayers at the presidential inauguration and to the inclusion of “so help me God” in the official presidential oath.

Safeguarding free speech. On campaign-finance restrictions, a liberal academic who broadly supports such restrictions bemoans that “the only question is whether [Kavanaugh would] be more like Justice Scalia (voting to strike down more and more campaign limits) or like Justice Thomas (voting to do that AND strike down campaign finance disclosure laws).”

Ruling for the American worker. In dissents in immigration-related cases, Kavanaugh has opined that illegal-immigrant workers are not entitled to vote in union elections and that “mere economic expediency does not authorize an employer to displace American workers for foreign workers.” He has also recognized the government’s interest in “supporting American farmers and ranchers against their foreign competitors.”

Ruling against a radical abortion claim. In his one foray into the abortion arena, in a very contentious recent case involving a pregnant unaccompanied-alien minor being held in HHS custody, Kavanaugh objected to his court’s grant of relief to the minor. In his dissent, he complained that the majority concocted “a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand.” The majority’s decision, he said, “represents a radical extension of the Supreme Court’s abortion jurisprudence.” (Kavanaugh has also received criticism from some pro-life quarters for his opinion; as I have explained, I believe that criticism to be unwarranted.)

In the coming days and weeks, I will more fully explain Judge Kavanaugh’s record, and defend his nomination against attacks, here on Bench Memos.

More information about Judge Kavanaugh is available at ConfirmKavanaugh.com.

Judge Kavanaugh on Justice Scalia: ‘A Hero and a Role Model’

July 10, 2018 (link)

Here are excerpts from a speech that Supreme Court nominee Brett Kavanaugh delivered at Antonin Scalia Law School in June 2016:

Let me start with a few personal reflections about Justice Scalia. Many of you no doubt knew him better than I did. So I do not want to overstate my relationship with him. But I just loved the guy. To me, Justice Scalia was and remains a hero and a role model. He thought carefully about his principles, he articulated those principles, and he stood up for those principles. As a judge, he did not buckle to political or academic pressure from the right or the left….

He loved his wife and family. He was a man of faith. And he really was a man for others. Of course, at a prayer breakfast one time, I presented to a group of about 20 fellow judges about the influence on my life of my Jesuit high school Georgetown Prep and its motto “men for others.” At the end of the talk, Justice Scalia said—in front of the whole group, I might add—about how I was not accurately interpreting the original meaning of the school’s motto and ought to get it straight. I don’t think he was kidding either.

That day and always, he has inspired me to try to do more and to do better in all facets of my life, and I hope he inspires all of us to do the same.

What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound and worth repeating often. The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is for the amendment process. Changing policy within constitutional bounds is for the legislatures. Remember that the structure of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are at least as essential to protecting individual liberty as the individual rights guaranteed in that text. And remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits. Simple but profound.

Schumer and Durbin’s Baseless Attacks on Kavanaugh on Subpoenas and Investigations

July 10, 2018 (link)

Wow, the Democrats really have no ammunition.

Senator Schumer asserts, on the basis of nothing, that President Trump nominated Judge Brett Kavanaugh because he is “worried” about the Mueller investigation and “knows that Kavanaugh will be a barrier to preventing that investigation” from successfully subpoenaing him.

But Kavanaugh has supported the proposition that a president may be subpoenaed. Specifically, he has supported, and indeed proposed that Congress codify, the legal rule that “the President may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.” Such a rule, he says, “strikes the appropriate balance between the need of federal law enforcement to conduct a thorough investigation and the need of the President for confidential discussions and advice.” (See pp. 2137-2138 of his law-review article, “The President and the Independent Counsel.”)

Senator Durbin insinuates that Trump selected Kavanaugh because Kavanaugh “is on record saying the president should not be distracted with criminal investigations and prosecutions [while] he’s in office.” (The quotes from Schumer and Durbin come from this article in The Hill.)

It should be no great surprise that the position that “the president should not be distracted with criminal investigations and prosecutions” is widely held. Indeed, that’s what DOJ’s Office of Legal Counsel under President Clinton concluded in a formal opinion: “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” As Noah Feldman observes (in his refutation of attacks on Kavanaugh’s position), “many, probably most constitutional scholars think a sitting president can’t be indicted.”

Kavanaugh has not remotely suggested that a president should escape accountabilitywhile in office. On the contrary, in this article in which he proposes a legislative solution to the problem posed by “criminal investigations and prosecutions of the President,” he emphasizes that the impeachment process “is available” for “dastardly” conduct. And as he discusses, Watergate special prosecutor Leon Jaworski likewise concluded that it would be irresponsible to seek an indictment against a sitting president: impeachment is the preferred option, Jaworski concluded, based in part on his staff’s warning that an indictment would “cripple [the president’s] ability to function effectively in the domestic and foreign fields as the Nation’s Chief Executive Officer.” (“The President and the Independent Counsel,” p. 2158.)

Botched Account of Kavanaugh’s Fourth Amendment Record

July 12, 2018 (link)

In an article in today’s Washington Post, cybersecurity reporter Derek Hawkins states that Supreme Court nominee Brett Kavanaugh “is drawing fire from privacy advocates and civil libertarians who object to his strong endorsements of warrantless government surveillance as a federal judge.” (Emphasis added.)

Note that Hawkins presents as fact that Kavanaugh made “strong endorsements of warrantless government surveillance.” He could easily have instead written that Kavanaugh’s critics “object to what they say are his strong endorsements of warrantless government surveillance as a federal judge.”

Hawkins discusses two cases. He badly botches one of them and offers a very one-sided account of the other.

1. On United States v. Jones, Hawkins states, correctly, that “Kavanaugh dissented when the D.C. Circuit declined to revisit its ruling that police had violated a suspect’s Fourth Amendment rights by tracking his car’s location without a warrant.” He also correctly states that the Supreme Court, on review of the Jones case, “ruled unanimously that law enforcement officers typically need a warrant to track people using GPS devices.” But he goes wildly astray when he claims that Kavanaugh’s opinion “could put [him] at odds with a majority on the court that has recognized broader Fourth Amendment protections as surveillance tools have advanced.”

It would seem that Hawkins has not actually read Kavanaugh’s brief dissent from the D.C. Circuit’s denial of rehearing en banc in Jones. For if he had, he would have readily discovered that Kavanaugh, in explaining that he did not “think the Government necessarily would prevail in this case,” sketched the very “property-based Fourth Amendment argument” that the Supreme Court majority adopted in Jones. Here are some key passages from Kavanaugh’s opinion (citations omitted):

The Supreme Court has stated that the Fourth Amendment “protects property as well as privacy.” As the defendant here rightly points out, the police not only engaged in surveillance by GPS but also intruded (albeit briefly and slightly) on the defendant’s personal property, namely his car, to install the GPS device on the vehicle.

Because of the police’s physical intrusion to install the GPS device, this case raises an issue that was not presented in Knotts. The defendant in Knotts did not own the property in which the beeper was installed and thus did not have standing to raise any Fourth Amendment challenge to the installation of the beeper. But Justice Brennan’s concurring opinion in Knotts foresaw the Fourth Amendment issue posed by the police’s installing such a device: “when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment even if the same information could have been obtained by other means.”

The key … question, therefore, is whether the police’s installation of a GPS device on one’s car is an “unauthorized physical encroachment within a constitutionally protected area” in the same way as installation of a listening device on a heating duct in a shared wall of a row house. One circuit judge has concluded that the Fourth Amendment does apply to installation of a GPS device: Absent the police’s compliance with Fourth Amendment requirements, “people are entitled to keep police officers’ hands and tools off their vehicles.” Without full briefing and argument, I do not yet know whether I agree with that conclusion. Whether the police’s mere touching or manipulating of the outside of one’s car is a “physical encroachment within a constitutionally protected area” requires fuller deliberation. In any event, it is an important and close question, one that the en banc Court should consider….

2. The legal issue in Klayman v. Obama was whether plaintiffs were entitled to an injunction against the NSA’s bulk collection of telephony metadata. Hawkins quotes passages from what he calls Kavanaugh’s “concurring opinion.” Kavanaugh’s opinion is not, as the reader might think, a concurrence in the panel ruling against plaintiffs, but rather a concurrence in the D.C. Circuit’s unanimous denial of rehearing en banc in the case. (Kavanaugh was not on the panel; among those who were, and who denied plaintiffs relief, was noted libertarian Judge Janice Rogers Brown.)

More importantly, Hawkins’s quotes omit that Kavanaugh, far from expressing his own legal views on the matter, repeatedly made clear that he was applying his reading of then-existing Supreme Court precedents:

The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.…

[T]he Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law.… The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.

Kavanaugh’s critics are welcome to try to make the case that he was misreading then-existing precedents. But it’s quite unfair to give the impression, as Hawkins does, that Kavanaugh was generally setting forth his own freestanding views. (In applying the Court’s special-needs doctrine, Kavanaugh does offer “my view” that “the critical national security need outweighs the impact on privacy occasioned by this program.”)*

It’s also worth noting that Kavanaugh highlighted that Congress and the president have “authority to scale back or put more checks on [the NSA] program.” Indeed, he suggested that the checks imposed by the USA Freedom Act were very modest (“to some extent”).

* I have added the parenthetical sentence and the word “generally” to the preceding sentence in response to a tweet.

Yale Law Prof Amy Chua Hails Kavanaugh as ‘Extraordinary’ Mentor for Women

July 13, 2018 (link)

In this powerful op-ed in today’s Wall Street Journal, Yale law professor Amy Chua celebrates Supreme Court nominee Brett Kavanaugh’s “extraordinary mentorship” of young women lawyers.

More than half of Kavanaugh’s law clerks have been women, many of them from Yale. Chua, having served on Yale’s clerkship committee, helped place them with Kavanaugh and inquired of them about their clerkship experiences. She writes:

They cited his legendary work ethic (“He expected us to work really hard, but there was always one person working harder than us—the Judge”), his commitment to excellence (“he wants every opinion that comes out of his chambers to be perfect; it is not uncommon to go through 30-50 drafts”), his humility (“He can take a great joke just as easily as he can land one”), and his decency (“I’ve never seen him be rude to anyone in the building”).

To a person, they described his extraordinary mentorship. “When I accepted his offer to clerk,” one woman wrote, “I had no idea I was signing up for a lifelong mentor who feels an enduring sense of responsibility for each of his clerks.” Another said: “I can’t imagine making a career decision without his advice.” And another: “He’s been an incredible mentor to me despite the fact that I’m a left-of-center woman. He always takes into account my goals rather than giving generic advice.”

These days the press is full of stories about powerful men exploiting or abusing female employees. That makes it even more striking to hear Judge Kavanaugh’s female clerks speak of his decency and his role as a fierce champion of their careers.

Chua’s own daughter was set to begin a clerkship with him next month:

If the judge is confirmed, my daughter will probably be looking for a different clerkship. But for my own daughter, there is no judge I would trust more than Brett Kavanaugh to be, in one former clerk’s words, “a teacher, advocate, and friend.”

Schumer’s Delusory Document Demand

July 26, 2018 (link)

As Senate Judiciary Committee chairman Chuck Grassley detailed in an excellent Senate floor speech yesterday, he expects that his committee will “receive up to one million pages of documents from Judge Kavanaugh’s time in the White House Counsel’s Office and the Office of the Independent Counsel.” This, of course, is on top of the most probative evidence of Judge Kavanaugh’s qualifications to be a Supreme Court justice: the “307 opinions he authored in 12 years as a D.C. Circuit judge, the hundreds more opinions he joined, and the 6,168 pages of material he submitted as part of his Senate Judiciary Committee questionnaire.”

As Grassley pointed out: “This will be the largest document production in connection with a Supreme Court nomination ever. By comparison, we received only about 170,000 pages of White House records for Justice Kagan”—who of course had no judicial record.

Yet somehow Senate Democratic leader Chuck Schumer is pretending that’s not enough. He is demanding the millions of pages of documents that passed through Kavanaugh’s office during his three years as White House staff secretary. Grassley is entirely correct to reject Schumer’s request (as he directly did in this forceful letter to Schumer yesterday).

As my Ethics and Public Policy Center colleague Yuval Levin has explained, the staff secretary “is basically the traffic cop directing the paper flow in the White House.” It demands “a person with intense attention to detail, no patience for cutting corners, and a willingness to insist that various White House offices and the colorful characters who often occupy them do their jobs and play their parts.” But the job “is in essence procedural and not substantive.” Thus:

A review of all the paperwork that circulated through Kavanaugh’s office when he was staff secretary would pretty much amount to a review of all the paperwork that circulated through the White House in those years, and yet would also reveal essentially nothing about Kavanaugh. It would mostly amount to a monumental waste of the Senate’s time.

It’s plain that Schumer, as part of his effort to obstruct the Kavanaugh nomination, affirmatively desires such “a monumental waste of the Senate’s time.” He obviously agrees that the papers from Kavanaugh’s time as White House staff secretary are not necessary to assess Kavanaugh’s fitness for the Supreme Court, as he has already committed to oppose the nomination.

By any sensible measure, the document production—unprecedented in volume—that Grassley is arranging far exceeds what any senator could reasonably expect. Have in mind that there has never been a practice of insisting on all executive-branch records of a nominee. If any such practice existed, then the Obama administration would have been obligated to turn over all of Elena Kagan’s records during her year as the Obama administration’s Solicitor General—information that would have been much more probative of her thinking on constitutional issues (and much more controversial) than her records from the Clinton White House.

The reality is that beyond assuring that the Senate has adequate information to assess the merits of a judicial nominee—a threshold that has already easily been met—a Senate Judiciary Committee chairman should decide how to respond to a Senate minority’s demand for documents based on how burdensome the demand is, how much insight the demanded documents promise, and how much leverage the Senate minority has. For the reasons Yuval Levin has given, the ratio of burden to insight for Kavanaugh’s staff secretary records approaches infinity. And Senator Schumer’s filibuster last year of the Gorsuch nomination, which resulted in the abolition of the supermajority cloture vote for Supreme Court nominees, means that Schumer has deprived himself of any leverage to enforce his patently unreasonable demand.

Contra Podesta and Stern on Schumer’s Delusory Document Demand

August 1, 2018 (link)

In this post last week, I explained that the unprecedented volume of executive-branch records that Senate Judiciary Committee chairman Chuck Grassley is seeking on the Kavanaugh nomination far exceeds what any senator could reasonably expect and, further, that Senator Schumer’s demand for the additional millions of pages of documents that passed through Brett Kavanaugh’s office when he was White House staff secretary (as well as the countless other records that merely mention his name or initials) is patently unreasonable and a cynical effort to obstruct the nomination.

In an op-ed yesterday in the Washington Post, John Podesta and Todd Stern, who each served stints as staff secretary under President Clinton, argue in support of Schumer’s demand. But they get some key things wrong:

1. Podesta and Stern try to dispute the account of the staff secretary role in President George W. Bush’s White House that my EPPC colleague (and former Bush White House staffer) Yuval Levin and others have provided. They state that, in their role as staff secretary in the Clinton White House, they “wrote concise cover memos for every decision memo that went to the president.” They assume or imply that Kavanaugh did the same for President Bush. But I am reliably informed that Kavanaugh and other staff secretaries under President Bush did not write cover memos for presidential decision memos. (One source tells me that in creating the new position of Deputy Chief of Staff for Policy, the Bush White House made it unnecessary for the staff secretary to write cover memos for presidential decision memos.)

Podesta and Stern also caricature Levin and others as claiming that Kavanaugh as staff secretary was “merely a paper pusher in the White House.” But Levin makes quite clear that the fact that the staff secretary role “was in essence procedural and not substantive” did not mean that it was not important. Among other things, the position demanded “a person with intense attention to detail, no patience for cutting corners, and a willingness to insist that various White House offices and the colorful characters who often occupy them do their jobs and play their parts.” Further, the “staff secretary can be influential in a few ways: by sheer proximity to the president (few people spend more time with the chief executive), by exercising some judgment about what documents flow to the president and which do not, and by making prudential choices in the staffing process about which of the competing views of various White House offices and officials to draw out or to insist are further represented in the papers that reach the president.”

Levin’s critical point, to which Podesta and Stern have no response, is that none of these ways in which the staff secretary might have had influence “would really be evident by examining the documents that circulated through the staff secretary’s office 15 years ago.” In short:

A review of all the paperwork that circulated through Kavanaugh’s office when he was staff secretary would pretty much amount to a review of all the paperwork that circulated through the White House in those years, and yet would also reveal essentially nothing about Kavanaugh. It would mostly amount to a monumental waste of the Senate’s time.

2. Amazingly, Podesta and Stern purport to be entirely blind to the cost-benefit analysis that alwaysproperly informs the Senate’s demand for records on a nominee. They instead glibly write: “Just as it was fair for senators to review Justice Elena Kagan’s documents as a policy adviser in the Clinton White House, it is fair for them now to review those of Kavanaugh as staff secretary.”

Kagan’s situation is dramatically different from Kavanaugh’s. For starters, the total number of pages of White House records for Kagan amounted to only 170,000 pages. Grassley already expects to receive up to one million pages of documents from Kavanaugh’s time in the White House Counsel’s Office and the Office of the Independent Counsel. The records that passed through the staff secretary’s office would add millions of additional pages.

Further, unlike Kagan’s records, the staff secretary records are replete with the confidential communications of dozens, if not hundreds, of individuals other than the nominee. It’s one thing to release the confidential communications of the nominee; it’s quite another to release those of other individuals merely because the documents passed through the staff secretary’s office. The staff secretary records also include sensitive national-security information that Kagan would rarely if ever have been privy to. The intensive pre-release review that both former president Bush and the current White House would have to engage in could easily take tens of thousands of hours and many months.

And to what end? Kagan had no record as a judge. Kavanaugh has served as a D.C. Circuit judge for twelve years, and the hundreds of opinions that he has authored, and the hundreds more that he has joined, provide the most probative evidence of his qualifications to be a Supreme Court justice. Schumer and other Democrats obviously agree that the records from his time as staff secretary are not necessary to assess his fitness for the Supreme Court, as they have already committed to oppose his nomination.

I’ll highlight again that the Senate did not demand the most probative evidence of Kagan’s legal thinking—her records during her tenure as the Obama administration’s Solicitor General. Nor did it demand the White House records relating to her nomination as SG.

Does anyone seriously believe that if Kagan had served as staff secretary in the Clinton White House, the Senate Democrats would have agreed to suspend the processing of her nomination for many months so that the millions of pages of documents that passed through her office could be reviewed? Absurd.

Addendum: After publishing this post, I ran across this excellent op-ed by former White House counsel C. Boyden Gray, which offers a similar analysis of what Gray labels Schumer’s “ludicrous” demand.

More on Schumer’s Delusory Document Demand

August 1, 2018 (link)

“It would be grossly irresponsible for the United States Senate to confirm someone to the United States Supreme Court without reviewing their entire record.” So proclaims an online petition in support of Senator Schumer’s crazed demand for the millions of pages of documents that passed through Brett Kavanaugh’s office when he was White House staff secretary. So assert, in one fashion or another, lots of folks on Twitter.

But this is an insane position that the Senate has never come anywhere close to adopting.

A nominee’s “entire record” cannot be coherently defined to consist of the nominee’s public record together with whatever nonpublic executive-branch materials might exist for the nominee. Indeed, if you’re genuinely interested in what “could shed light on how [a nominee] would rule as a Supreme Court justice” (I’m quoting the online petition), there is no reason at all to give special emphasis to executive-branch records. Justices Ginsburg, Breyer, Alito, and Sotomayor, for example, all had long judicial records when they were nominated to the Supreme Court. What better way to get insights into their legal thinking than to require them to turn over their confidential case files and emails? So what if months of delay are involved and if the demand threatens the confidentiality of deliberations among judges and between judges and their law clerks? On the logic of the online petition, we’re supposed to think that the Senate—with Senate Democrats in charge of the process for Ginsburg, Breyer, and Sotomayor—was “grossly irresponsible” to confirm those nominees “without reviewing their entire record[s].”

Even as to executive-branch records, the Senate proceeded to confirm Justice Kagan without seeking her files from her tenure as the Obama administration’s Solicitor General. Why not? Because the Senate, then under Democratic control, was “grossly irresponsible”?

And on legislative-branch records, how is it that the Senate never sought Elena Kagan’s files from her service as special counsel to Senate Judiciary Committee chairman Joe Biden on the Ginsburg confirmation hearing? More gross irresponsibility?

And why look only to governmental records? Why not, say, have required John Roberts to ask his former law firm seek his former clients’ permission to waive attorney-client privilege so that we could scrutinize his legal thinking?

And since we’re concerned about the nominee’s character and about how a nominee’s personal views might affect his legal thinking, why not demand access to all of a nominee’s private papers and emails? Indeed, why not insist that any person who desires to be eligible for a Supreme Court nomination consent years in advance to 24/7 surveillance of every word and action?

As I’ve explained, the Senate has always been sensitive to the trade-off between how burdensome and time-consuming a demand would be and how much incremental insight documents could reasonably be expected to provide. The Kavanaugh confirmation process is no occasion to abandon sanity.

Leading Liberal Feminist Supreme Court Advocate Supports Kavanaugh

August 2, 2018 (link)

Here’s a noteworthy op-ed from Supreme Court advocate Lisa Blatt urging that the Senate confirm the Kavanaugh nomination. Blatt, a former clerk to Ruth Bader Ginsburg and a self-described “liberal Democrat and feminist,” has argued more Supreme Court cases than any other woman. Some excerpts:

Sometimes a superstar is just a superstar. That is the case with Judge Brett Kavanaugh, who had long been considered the most qualified nominee for the Supreme Court if Republicans secured the White House. The Senate should confirm him.…

Because I am a liberal Democrat and feminist, I expect my friends on the left will criticize me for speaking up for Kavanaugh. But we all benefit from having smart, qualified and engaged judges on our highest court, regardless of the administration that nominates them.…

I do not have a single litmus test for a nominee. My standard is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought. Kavanaugh easily meets those criteria. I have no insight into his views on Roe v. Wade—something extremely important to me as a liberal, female Democrat and mother of a teenage girl. But whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.…

Democrats should quit attacking Kavanaugh—full stop. It is unbecoming to block him simply because they want to, and they risk alienating intelligent people who see the obvious: He is the most qualified conservative for the job.

Badly Muddled Account of Routine Trump Casino Ruling

August 2, 2018 (link)

If a ruling in which Judge Kavanaugh took part some years ago involved a Trump-owned entity, there’s got to be something newsworthy there, right? Wrong.

This Bloomberg article titled “Kavanaugh Sided With Trump Casino in 2012 to Thwart Union Drive” undertakes to report on Judge Kavanaugh’s joining a unanimous 2012 D.C. Circuit panel ruling in Trump Plaza Associates v. NLRB. But it manages to get some elementary things wrong. (Nor—pet peeve alert!—does it bother to include a link to the opinion.)

After the NLRB concluded that Trump Plaza had unlawfully refused to bargain with a union representing card dealers, Trump Plaza argued to the D.C. Circuit that the NLRB had wrongly certified the union. It advanced two separate claims.

Trump Plaza’s first claim was that the union election (in the article’s summary) “had been tainted by the pre-election press conference and other shows of support from politicians that the company said could make workers think the labor board wanted them to unionize.” (Emphasis added.) The panel ruled against Trump Plaza on this claim. (See section on “Government Endorsement,” pp. 827-829.)

Trump Plaza claimed, second, that a mock card-check ceremony at the pre-election press conference misled employees into thinking that the union had already been certified as their representative. On this issue, the panel held that the ground on which the NLRB had ruled against Trump Plaza—namely, that there was an “absence of evidence” that the mock card-check had been widely disseminated—was “plainly wrong.” Further, the panel ruled, the NLRB had departed from its own precedent, and had given no “reasoned explanation” for doing so, when it declined to set aside the union election in the face of the evidence of dissemination. The panel therefore remanded the matter to the NLRB “to, first, assess the severity of the challenged conduct … and second, to reassess the extent of the mock card-check dissemination under its precedent.” (See pp. 830-832.)

The Bloomberg article hopelessly muddles these two distinct claims. That muddle conceals that the panel ruled against Trump Plaza on the first claim. It also obscures that the panel’s ruling for Trump Plaza on the second claim, far from being evidence of anti-union animus (as “labor advocates” quoted in the article contend), was a run-of-the-mill application of the black-letter administrative-law principle that an agency cannot depart from its own precedents without explanation. Thus, far from delivering a final victory to Trump Plaza, the ruling simply returned the matter to the NLRB to give it the opportunity to do things right.

Wildly Whaling on Kavanaugh

August 8, 2018 (link)

In a Slate essay titled “Brett Kavanaugh Has His Own ‘Frozen Trucker’ Case,” labor lawyer Terri Gerstein tries to argue that Judge Kavanaugh’s dissent in SeaWorld v. Perez (2014) shows that “he will be disastrous for working people.” But the only thing that Gerstein shows that Kavanaugh’s SeaWorld dissent has in common with the 2016 dissent by then-Judge Gorsuch in TransAm Trucking v. Administrative Review Board (which I discuss here) is that she and others attacking the nominee will wildly distort and obscure the legal basis of the opinion in order to try to score cheap political points.

The general-duty clause of the Occupational Safety and Health Act requires that each employer provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.” In the SeaWorld case, in the aftermath of a terrible incident in which a killer whale drowned a SeaWorld trainer during a performance, the Department of Labor fined SeaWorld for violating this general-duty clause.

Although you wouldn’t know it from Gerstein’s attack, Kavanaugh parted company with the panel majority on whether and how OSHA’s general-duty clause applies to sports events and entertainment shows that present intrinsic risks to participants. In particular, Kavanaugh argued that the Department of Labor had previously recognized, in the Pelron case, that “hazards posed by the normal activities intrinsic to an industry cannot be ‘feasibly’ eliminated and so may not form the basis of a General Duty Clause violation”—and that it had failed to explain why that same rule shouldn’t apply to the SeaWorld activities in dispute. As he put it:

The Department cannot reasonably distinguish close contact with whales at SeaWorld from tackling in the NFL or speeding in NASCAR. The Department’s sole justification for the distinction is that SeaWorld could modify (and indeed, since the Department’s decision, has had to modify) its shows to eliminate close contact with whales without going out of business. But so too, the NFL could ban tackling or punt returns or blocks below the waist. And likewise, NASCAR could impose a speed limit during its races. But the Department has not claimed that it can regulate those activities. So that is not a reasonable way to distinguish sports from SeaWorld. The Department assures us, however, that it would never dictate such outcomes in those sports because “physical contact between players is intrinsic to professional football, as is high speed driving to professional auto racing.” But that ipse dixit just brings us back to square one: Why isn’t close contact between trainers and whales as intrinsic to SeaWorld’s aquatic entertainment enterprise as tackling is to football or speeding is to auto racing? The Department offers no answer at all. [Italics in original; citation omitted.]

Rather than engage the actual debate between the majority and Kavanaugh over Pelron, Gerstein instead maligns Kavanaugh for allegedly “show[ing] a stunning lack of understanding of what it means to be a working person whose livelihood depends on a job she has little ability to affect.” Indeed, her entire piece is little more than a series of disjointed slurs.

NYT Article Gets Kavanaugh Email Wrong

August 9, 2018 (link)

New York Times headline blares “Kavanaugh Had Role in a Bush White House Debate About Terrorism Suspects, Email Shows.” The article below the headline insinuates that there is some sort of conflict between the email and Judge Kavanaugh’s testimony at his 2006 hearing on his D.C. Circuit nomination that he was not involved in “questions about the rules governing detention of combatants.”* But any such conflict is an illusion built on confusion.

The email chain, reproduced in the article, contains two emails, both dated November 19, 2001. In the first, Pat O’Brien of the Justice Department’s Office of Legislative Affairs informs Kavanaugh (who was then in the White House Counsel’s office) of a Senate Judiciary Committee hearing on December 6 “on post 9/11 actions by the Justice Department,” including on the topics of “military tribunals, monitoring of atty/client conversations, racial profiling, etc.” O’Brien requests that White House lawyers assist in preparing the Attorney General for the hearing. In the second email, Kavanaugh forwards the first email to his colleague Bradford Berenson and states: “I am happy to help out with this on the attorney-client issue, but you should obviously handle tribunals.”

The “attorney-client issue” here had nothing to do with detained enemy combatants. Rather, it concerned inmates in federal prisons. As the Times article itself explains several paragraphs in:

At the time, the Justice Department had attracted controversy by informing a small number of federal prisoners that their conversations with lawyers were subject to monitoring to ensure they would not pass on messages to terrorists.

The DOJ talking points from November 2001, included in the same document release at pp. 780-781 (stamped REV_00081190-91), confirm this understanding.

In short, there is no story here.

* Update (6:15 p.m.): A revised version of the article has somewhat muddled the insinuation.

Senate Democrats: Stop Expediting Release of Kavanaugh’s White House Records

August 10, 2018 (link)

The Senate Judiciary Committee will receive an unprecedented volume of White House records on Judge Brett Kavanaugh’s nomination to the Supreme Court. I’ve already addressed (in these threeposts) Senate Democrats’ transparently obstructionist claim that the Committee should delay the confirmation process by many months in order to obtain the millions of pages of documents that passed through Kavanaugh’s office when he was White House staff secretary. I’ll address here the slipshod arguments that Senate Democrats are making against the provision of records from Kavanaugh’s years as White House counsel.

1. As this Washington Post article reports, Democrats are complaining that President George W. Bush has a team of lawyers involved in reviewing the documents. The Post article quotes this tweet from Senator Dick Durbin:

Take note: Unless it was produced by the National Archives, every document you see from Judge Kavanaugh’s White House tenure was selectively chosen for release by his former deputy, Bill Burck. This is not an objective process.

As Democrats surely know, the president whose White House records have been requested is always part of the process. President Obama issued the executive order that governs the disclosure of presidential records under the Presidential Records Act. Consistent with the Act, that executive order authorizes a former president to make a claim of executive privilege regarding requested records, and it further specifies that executive privilege covers records that reflect “the deliberative processes of the executive branch.”

It’s hardly a surprise that a president would rely on trusted lawyers for this sensitive executive-privilege review. I haven’t seen any specific account of who led the review of Elena Kagan’s records on behalf of the Clinton White House. But the Clinton presidential library is operated by the Clinton Foundation, and the longtime head of the Clinton Foundation—including during the time of Kagan’s confirmation process—is Clinton loyalist Bruce Lindsey. Lindsey was assistant to the president and deputy White House counsel, and Kagan worked under Lindsey during her time in the White House counsel’s office. She also worked with him in her later position as deputy director of the White House domestic policy council.

If Bruce Lindsey didn’t personally manage the review of Kagan’s records, it’s farfetched to imagine that he didn’t have another Clinton loyalist play the role.

Bill Burck is an accomplished lawyer and was deputy White House counsel to President Bush. So he’s an obvious excellent choice to lead Bush’s team of lawyers in reviewing the Kavanaugh documents.

2. Far from impeding the production of documents, Burck and his team are expediting it.

On August 2, Burck sent the Committee 45,083 documents totaling 125,035 pages and stated in a cover letter that “President Bush has no objection to making these presidential records available to the public, subject to any concerns that NARA [the National Archives and Records Administration] may have in that respect.” (As Burck pointed out, “President Bush is under no obligation to produce records of his Administration but has authorized this production to assist the United States Senate Committee on the Judiciary in its assessment of Judge Kavanaugh’s nomination to the United States Supreme Court.”)

On August 8, Burck further informed the Committee that he had learned from NARA that it was unable to conduct the requested review promptly. Therefore, Burck continued, “in the interests of expediting appropriate access,” President Bush and his team “are producing to the Committee on a rolling basis commencing today publicly releasable versions of documents that, in our view, do not contain information covered by a Presidential Records Act exemption or applicable privilege.”

3. Senate Democrats are complaining that, pending the Bush team’s executive-privilege review and NARA’s own review, documents that have not yet been deemed to be publicly releasable are temporarily being provided to the Committee on a “committee confidential” basis. Hmmm, why would Senate Democrats complain that Committee members—including, of course, the Democrats on the Committee—are receiving documents more quickly than they otherwise would? The Democrats’ game of obstruction and delay is transparent.

It is routine for privileged documents to be provided to the Committee only on a “committee confidential” basis. As this SCOTUSblog report on the Kagan nomination discusses (on page 2), “roughly two thousand documents” from the Clinton White House were deemed “committee confidential” and withheld from the public on that basis.

Because of the vastly larger volume of Kavanaugh documents, the Bush team is expediting the provision of potentially privileged documents. That is nothing that Democrats can fairly complain about.

More on Democrats’ Delusory Document Demands

August 14, 2018 (link)

I’ve written these three posts on Senate Democrats’ demand for the millions of pages of documents that passed through Judge Kavanaugh’s office when he was White House staff secretary and this post on Senate Democrats’ objection to the expedited release of Kavanaugh’s records from his time in the White House counsel’s office. If anyone has seriously contested any of my points, I’ve missed it.

A few additional observations:

1. If Senate Democrats actually wanted to obtain documents bearing on specific concerns that they profess to have, they could have negotiated a targeted request for such documents.

In a Twitter exchange with me last night, Senator Feinstein’s press secretary claimed that Democrats “offered to use search terms to narrow their requests.” (Emphasis added.) But the evidence that she offered for that claim refuted it. Democrats offered only “to submit search terms to assist in prioritizing the order of production.” (Emphasis added.) Their proposal specifically asserted that “use of search terms does not relinquish the responsibility of providing other documents responsive to this request.”

There is a world of difference between “prioritizing the order of production” of documents and actually narrowing a request. Under the Democrats’ proposal, they would have continued to demand the millions of pages of documents that passed through the staff secretary office. They would also have required a search of every email and every other record of every one of the hundreds of White House aides who served during any portion of the entire eight years of President George W. Bush’s administration. (See demand for “documents referencing Mr. Kavanaugh by name, initials, or title.”)

I am reliably informed that Senate Democrats were absolutely insistent that they would not agree to any limitations on the universe of documents demanded. The obvious—indeed, the only plausible—explanation for their position is that their overriding goal is to obstruct by delay, not to acquire relevant information about the nominee.

2. A favorite fantasy of the Left is that there are hidden records that will show that Kavanaugh supported the torture of detainees and that he lied on the matter at his 2006 confirmation hearing. I’ll refer the reader to Tom Jipping’s fuller account of that confirmation hearing and add just a couple of points here.

a. The White House has distributed to reporters statements by former White House counsel Alberto Gonzales, former deputy counsel Tim Flanigan, and former deputy counsel David Leitch attesting that Kavanaugh was not “read into” the compartmentalized classified program that addressed “enhanced interrogation techniques” and therefore had no involvement on that matter. (The White House hasn’t put the statements online, but Gonzales’s is quoted in this article.) If any senator cares to contest that fact, a way would surely be found to confirm (or, in theory, deny) that the classified record of who was read into the program does not list Kavanaugh.

b. At Kavanaugh’s 2006 hearing, Senator Durbin criticized a previous judicial nominee’s role in the “use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity and forcing detainees into painful stress positions,” and he asked Kavanaugh what he knew about that nominee’s “role in crafting the administration’s detention and interrogation policies.” Kavanaugh responded, “I was not involved and am not involved in the questions about the rules governing detention of combatants.”

Kavanaugh was plainly responding to Durbin’s concerns about “abusive interrogation techniques.”

Washington Post article a year later reported that Kavanaugh attended a White House meeting in 2002 that addressed how to win pending cases involving U.S. citizens detained as enemy combatants. Kavanaugh opined that Justice Kennedy would not look favorably on a policy of depriving U.S. citizen detainees of access to lawyers. A recent WaPo article disclosed that a fellow former Kennedy clerk pulled Kavanaugh into the meeting to support his same take on Kennedy on that issue.

In other words, the 2002 meeting had nothing to do with the “abusive interrogation techniques” that Durbin was asking about. This supposed “gotcha” moment involved an assessment by Kavanaugh of Justice Kennedy’s views regarding the government’s position in ongoing litigation—an assessment that could only have helped the argument for giving citizen detainees access to lawyers. Any claim that Kavanaugh was being deceptive in his 2006 testimony is beyond farfetched.

3. But, some ask, why not just turn over the millions of pages of staff secretary documents?

As I have explained, the staff secretary records are replete with the confidential communications of dozens, if not hundreds, of individuals other than the nominee. Some portion of those records also surely includes sensitive national-security information.

President Obama’s executive order implementing the Presidential Records Act provides that both the former president whose records are potentially being released and the current president may invoke executive privilege against the release of records that involve the “deliberative processes of the executive branch” or that might impair national security. Indeed, it would be grossly irresponsible not to conduct a thorough privilege review. I trust that the cause of national security requires no further explanation. But for those who imagine that the cause of transparency trumps concerns about the deliberative processes, I will simply quote from the Supreme Court’s unanimous opinion in United States v. Nixon (1974), in which the Court, in the course of rejecting President Nixon’s claim of an absolute privilege for deliberative materials, endorsed “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” As the Court put it:

[T]he importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.

Judge Kavanaugh has written over 300 opinions and has participated in hundreds of additional rulings. He has an ample judicial record to assess. In addition, the Senate has already received some 200,000 pages of records from Kavanaugh’s service in the White House counsel’s office—more than Elena Kagan’s total—with many more pages to come.

As I have explained, the staff secretary records are very unlikely to yield any incremental insights into Judge Kavanaugh’s legal thinking. The intensive pre-release review that both former president Bush and the current White House would have to engage in could easily take tens of thousands of hours and many months. On any sensible application of the cost-benefit analysis that always properly shapes the Senate’s demand for documents, demanding the staff secretary documents would be insane.