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, and to sign up for his email distribution list.]

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
Judge Kavanaugh on Justice Scalia: ‘A Hero and a Role Model’
Schumer and Durbin’s Baseless Attacks on Kavanaugh on Subpoenas and Investigations
Botched Account of Kavanaugh’s Fourth Amendment Record
Yale Law Prof Amy Chua Hails Kavanaugh as ‘Extraordinary’ Mentor for Women
Schumer’s Delusory Document Demand
Contra Podesta and Stern on Schumer’s Delusory Document Demand
More on Schumer’s Delusory Document Demand
Leading Liberal Feminist Supreme Court Advocate Supports Kavanaugh
Badly Muddled Account of Routine Trump Casino Ruling
Wildly Whaling on Kavanaugh
NYT Article Gets Kavanaugh Email Wrong
Senate Democrats: Stop Expediting Release of Kavanaugh’s White House Records
More on Democrats’ Delusory Document Demands
Vicious Distortion of Kavanaugh Ruling
NYT Magazine Article on Trump’s Appellate Appointments
A Viewer’s Guide to Kavanaugh Hearing
ABA Unanimously Awards Kavanaugh Highest “Well Qualified” Rating
Wrap-Up on Democrats’ Delusory Document Demands
Dems’ Latest Documents Hullabaloo
On Reported Alaska Native Opposition to Kavanaugh
Mobbing Susan Collins

Refuting Anti-Kavanaugh Smears—Introduction
Refuting Anti-Kavanaugh Smears—Manny Miranda Controversy
Refuting Anti-Kavanaugh Smears—NSA’s Warrantless Wiretapping Program
Refuting Anti-Kavanaugh Smears—Interrogation
Refuting Anti-Kavanaugh Smears—Pryor Nomination
Refuting Anti-Kavanaugh Smears—Pickering Nomination

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)

A 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 three posts) 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.”

A 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.

Vicious Distortion of Kavanaugh Ruling

August 27, 2018 (link)

Wow, some on the Left are really getting desperate and nasty.

In Doe v. District of Columbia (2007), Judge Kavanaugh wrote a unanimous D.C. Circuit panel opinion that held that the policy that the District of Columbia adopted in 2003 for authorizing surgeries for a subclass of intellectually disabled persons in the District’s care did not violate the Due Process Clause. Specifically, the subclass consisted of intellectually disabled persons in the District’s care who have never had the mental capacity to make medical decisions for themselves and who have no guardian, family member, or other close relative or friend who is available to consent or withhold consent on their behalf. Under the District’s policy, the District would authorize surgeries for such persons when (1) two physicians have certified that the proposed surgery is “clinically indicated to maintain the health” of the patient, and (2) D.C. caregivers have made efforts to discuss the surgery with the patient at the level of the patient’s comprehension.

The case arose when three intellectually disabled persons who had never had the mental capacity to make medical decisions for themselves filed suit—or, more precisely, when someone purportedly acting on their behalf filed suit—to challenge the District’s policy. The District, represented by its attorney general Robert Spagnoletti and its solicitor general Todd Kim, vigorously defended the District’s policy. As Kavanaugh summarizes a key part of the District’s arguments:

The District of Columbia has argued that it legally and logically cannot consider the wishes of patients who lack—and always have lacked—mental capacity to make independent medical decisions because there is no information about what they would want if they were not incapacitated. The District of Columbia points out that consideration of the wishes of a patient who lacks mental capacity to make healthcare decisions could lead to denial of essential medical care to a patient who purportedly did not want it—even though the patient by law has always lacked the mental capacity to make such a decision. [Citation and internal quotes omitted.]

Agreeing with the District, Kavanaugh explained that “accepting the wishes of patients who lack (and have always lacked) the mental capacity to make medical decisions does not make logical sense and would cause erroneous medical decisions—with harmful or even deadly consequences to intellectually disabled persons.” He further pointed out that “the breadth of plaintiffs’ constitutional claims is extraordinary because no state of which we are aware applies the rule suggested by plaintiffs.”

In short, this case presented an easy legal question.

But that hasn’t stopped Jamie Davis Smith from penning an outrageous Huffington Post article titled “Brett Kavanaugh’s Supreme Court Confirmation Would Jeopardize My Daughter’s Life.” Smith is the mother of a daughter with serious health problems, including intellectual disabilities. She and her daughter deserve our sympathies. But those sympathies can’t excuse Smith’s outrageous falsehoods.

Smith asserts that Kavanaugh upheld “D.C.’s practice of not allowing the very people undergoing surgery or abortion to express their wishes before being subjected to invasive procedures.” She thus conceals that D.C.’s policy applies only to those (1) who lack, and who have always lacked, the mental capacity to make medical decisions for themselves, (2) who have no guardian, family member, or other close relative or friend to consent or withhold consent on their behalf, and (3) whom two physicians have certified need the proposed surgery to maintain their health. Her reference to abortion is also flat wrong: As Kavanaugh explains, “The D.C.Code also explicitly provides that abortions, sterilizations, and psycho-surgeries may not be authorized, at least absent a court order.” (The plaintiffs sought damages for involuntary abortions under earlier D.C. law, but their damages claim was not part of the case on appeal.)

But Smith doesn’t stop there. She makes numerous other vicious and baseless assertions, including: “With this man [Kavanaugh] on the bench, America could very well return to a time in which forced sterilizations or medical experimentation on disabled individuals is the norm.” (A blog post earlier this month co-authored by a Center for American Progress intern is similarly unhinged from reality.)

Even for those on the Left too lazy to read a judicial opinion, perhaps they could do a sanity check and stop to ponder whether a progressive D.C. government in 2003 would adopt the evil policy they imagine Kavanaugh to have deferred to and whether respected liberals like Spagnoletti (now CEO of the D.C. bar) and Kim (nominated by President Obama in 2014 to serve on D.C.’s highest court) would have vigorously defended such a policy.

NYT Magazine Article on Trump’s Appellate Appointments

August 29, 2018 (link)

Sunday’s New York Times Magazine has a very long and interesting article on (as the online title puts it) “How the Trump Administration Is Remaking the Courts.”

The article focuses in particular on President Trump’s tremendous success in appointing judges to the federal courts of appeals. It recognizes the critical roles that outgoing White House Counsel Don McGahn, Senate majority leader Mitch McConnell, Leonard Leo, and the Federalist Society have played in that success. (I would also give lots of credit to Senate Judiciary Committee chairman Chuck Grassley.) It also highlights that “Trump’s appointees have tended to be unusually well credentialed and conservative.” (The ABA, no friend of conservatives, rated 23 of Trump’s 26 appointees, or 88%, “well qualified”; by contrast, it gave that rating to only 11 of President Obama’s 16 appellate appointees—69%—during his first two years in office.)

I won’t try to summarize the article here—the interested reader should read it—but instead offer some dissenting observations and corrections.

1. In my judgment, the article gives an exaggerated impression of the long-term impact of the appellate appointments that have been made so far—24 as of the time the article was written, 26 as of Sunday. Yes, the Trump White House has set a record for a president’s first two years. But 26 judges amounts to barely 13% of the 179 federal appellate seats. Further, as Brookings scholar Russell Wheeler explains in “Trump has reshaped the judiciary but not as much as you might think,” most of Trump’s appointments (16) have been to seats previously held by Republican appointees, so they have maintained (and extended in time), rather than altered, the composition of the various courts of appeals.

The article asserts that Trump has “flipped” the Sixth and Seventh Circuits from liberal to conservative and that he is “on the verge” of flipping the Eighth Circuit. But all three of those courts already had more Republican appointees (the article’s proxy for conservative) than Democratic appointees when Trump took office.

The article also asserts that “[e]ven circuits that are decidedly liberal are undergoing significant changes” and quotes a source on the value of having “between two and four really good, high-octane intellectual conservative jurists” on the liberal Second and Ninth Circuits. But so far Trump has made no appointments to the Second Circuit, and his only appointee to the Ninth Circuit, Mark Bennett in Hawaii, is widely perceived as moderate if not liberal.

The article includes a hilariously misleading graphic that uses gavel handles of various lengths to depict how Trump’s record compares to those of recent presidents. Trump’s gavel handle is ten times the length of Obama’s, but only because the graphic uses a baseline of 14 judges rather than zero.

In short, the Trump White House is off to an excellent start, but this strong performance needs to be sustained over several more years in order to effect the “sweeping transformation” of the federal appellate courts that the article’s subhed touts.

2. The article completely misses one big part of the story—how Harry Reid’s abolition of the filibuster for lower-court nominees in November 2013 was essential to the success that Trump has enjoyed. As I explained in my National Review article in January on Trump’s first year of judicial appointments, the abolition of the filibuster meant that the path to confirmation in a Senate controlled by the same party as the president could be fairly certain and quick, and “that promise of a smooth path encouraged high-quality conservatives—the very folks who might reasonably have feared a filibuster and been most reluctant to put their careers in indefinite limbo—to offer themselves as candidates.”

The article discusses Reid’s abolition of the filibuster more than halfway through, but it doesn’t connect that change to the significant developments it discusses early on: McGahn’s decision to go with nominees who would be “really hot” rather than low-profile; his “unprecedented degree of control over judicial appointments” and his unwillingness to engage in “horse-trading” with senators; and the “unusually well credentialed and conservative” profile of the nominees.

3. I think that the article’s account of the ascendancy of “the judicial philosophies of originalism and textualism” among legal conservatives gets some important things wrong. The article asserts that those philosophies “hold that judges should interpret the Constitution according to the meaning of its plain text.” (Emphasis added.) But originalism and textualism do not maintain that the text of the Constitution (or of other laws) is in all respects “plain.” Often the meaning of legal text is obscure. Originalism and textualism set forth a methodology for discerning the meaning of text that is not plain. (For similar reasons, I think that the article’s claim that originalists and textualists believe that “Unless Congress explicitly mandates it …, agencies can’t do it” is wrong.)

The article also implausibly claims that originalists and textualists “didn’t achieve critical mass in the larger conservative legal movement until 2012.” But originalism and textualism have been ascendant in the conservative legal thinking since the early 1980s, thanks to Justice Scalia, Judge Bork, Attorney General Ed Meese, and others. The article instead conflates originalism with the libertarian variant of originalism and seems not to recognize that there has long existed another variant of originalism in which a judge, after deploying the originalist tools, may deem a statute unconstitutional only if it clearly conflicts with the meaning of a constitutional provision. That variant might fairly be called judicial-restraint originalism, but it differs markedly from any concept of judicial restraint that is unmoored from originalism.

4. With regard to the three D.C. Circuit nominees pending in 2013, the article asserts that Senate Republicans “didn’t object to the nominees themselves; all three were considered moderate and eminently qualified.” That assertion is flat-out absurd as applied to Cornelia Pillard. (I think it’s wrong as to the other two as well, but I gather that every liberal is a “moderate” in the eyes of the New York Times.)

5. The article has a very long account of the battle over a Seventh Circuit seat in Wisconsin. I explained back in 2011 how Senator Ron Johnson’s refusal to return a blue slip on Obama’s nomination of law professor Victoria Nourse was, contrary to what the article suggests, well within the bounds of Senate practice.

The article also fails to note the mystery of why the Senate Judiciary Committee, under then-chairman Pat Leahy, didn’t hold a hearing on her nomination promptly after Obama first nominated her in July 2010 (when both of Wisconsin’s senators were Democrats). I’ll refrain from commenting further, but will observe that the reason may well have persisted throughout the pendency of her nomination.

As evidence that Nourse was (what else?) a “moderate,” the article states that “besides working for [then-Senator] Biden, Nourse worked on the Judiciary Committee with Orrin Hatch, a Utah Republican.” Note the wordplay: she “worked … with” Hatch, not for him. I’m really not sure what this means. I suppose that I, as a Judiciary Committee staffer, at times “worked with” Senators Biden, Leahy, Kennedy, etc., or their staffs, so does that mean I’m a “moderate”?

A Viewer’s Guide to Kavanaugh Hearing

August 31, 2018 (link)

For those of you interested in following next week’s Senate Judiciary Committee hearing on Judge Kavanaugh’s nomination to the Supreme Court, I offer some general day-to-day guidance. (I also encourage you to follow me on Twitter at @EdWhelanEPPC; I expect to be very active there.)

Tuesday, Sept. 4: The hearing is scheduled to begin at 9:30. Don’t expect any questioning by senators on this day. After Chairman Grassley opens the hearing, the day will proceed with opening statements of 10 minutes each by all 21 committee members (11 Republicans and 10 Democrats). So that’s 3-1/2 hours right there, not including lunch and other breaks, overage, and other down time. Kavanaugh will then be introduced to the committee by Condoleezza Rice, Senator Rob Portman, and Supreme Court advocate Lisa Blatt. And the first day will close—probably around 5 p.m.—with Kavanaugh’s opening statement.

Wednesday: First round of questioning begins. Each senator will have 30 minutes, and the questioning will alternate back and forth between Republicans and Democrats and in order of seniority. For those of you eager to watch your favorite (or least favorite) senator in action, that means: Grassley, Feinstein, Hatch, Leahy, Graham, Durbin, Cornyn, Whitehouse, Lee, Klobuchar, Cruz, Coons, Sasse, Blumenthal, Flake, Hirono, Crapo, Booker, Tillis, Harris, Kennedy. The first round will take 10-1/2 hours, so it might not be completed on Wednesday, but I gather that Grassley is going to try. Here’s my rough guess on how questioning will proceed:

Morning: Grassley, Feinstein, Hatch, Leahy, Graham

Afternoon: Durbin, Cornyn, Whitehouse, Lee, Klobuchar, Cruz, Coons, Sasse, Blumenthal, Flake

Evening: Hirono, Crapo, Booker, Tillis, Harris, Kennedy

Thursday: If the first round of questioning doesn’t end on Wednesday evening, it will end early on Thursday. The second round of questioning will then take place, with each senator having 20 minutes. In theory, that could mean another seven hours of questioning, but Republicans will probably waive some or all of their time (and some Democrats might do so as well). If necessary, a third round of five-minute questioning will take place. Kavanaugh’s testimony will finish on Thursday.

Friday: The committee will hear from four panels of witnesses, 28 witnesses in total (listed here). The panels will be ushered in and out very quickly, and nearly no one will be watching at this point.

[I’ve made changes to the original version.]

ABA Unanimously Awards Kavanaugh Highest “Well Qualified” Rating

August 31, 2018 (link)

Congrats to the left-leaning American Bar Association for playing it straight: Its Standing Committee on the Federal Judiciary has unanimously rated Judge Kavanaugh “Well Qualified” for the Supreme Court. That’s the ABA’s highest rating.

Here’s the ABA’s account of what that rating means (from p. 11 of its “Backgrounder”):

To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement. [Emphasis added.]

Have that in mind as Senate Democrats and others on the Left continue to smear Kavanaugh.

Addendum: Senator McConnell reminds us that Senator Schumer and Senator Leahy have proclaimed the ABA’s evaluation to be “the gold standard by which judicial candidates are judge.” So I’m looking forward to their support of Kavanaugh.

Wrap-Up on Democrats’ Delusory Document Demands

August 31, 2018 (link)

Over the past six weeks, I’ve written these four extensive 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 (as well as this post on Senate Democrats’ objection to the expedited release of Kavanaugh’s records from his time in the White House counsel’s office). In light of the Left’s failure to muster any serious substantive case against the Kavanaugh nomination, I’m guessing that Senate Democrats will be waxing indignant on this matter at next week’s hearing, so I figured that I would distill (and repeat) some basic points:

1. No Judiciary Committee chairman has ever agreed to a minority party’s document demand that would entail significant delay in the consideration of a Supreme Court nominee.

2. Beyond the background materials that the Senate questionnaire calls for, there is no special category of documents that the committee has deemed to be always essential to its consideration of a Supreme Court nominee. In deciding how to respond to a minority party’s demand for documents, each Judiciary Committee chairman assesses how burdensome the demand is. That’s what then-Chairman Leahy did when he agreed to request Elena Kagan’s White House records. The idea that he would have insisted on those records if they involved months of delay is ludicrous.

3. There is no precedent for insisting on having the nominee’s “entire record” to review. For starters, if there were such a practice, there would be no reason to limit it to executive-branch materials. 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?

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—the files that would be most probative of her legal thinking. And on legislative-branch records, 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.

4. Judge Kavanaugh has a twelve-year record on the D.C. Circuit. (Kagan had never been a judge.) That record provides ample insight for judging his fitness to serve on the Supreme Court, as the ABA’s unanimous “Well Qualified” rating attests. In addition, the Senate is receiving up to one million pages of documents from Kavanaugh’s tenure in the White House counsel’s office and in the Office of the Independent Counsel, making this by far the largest document production ever for a Supreme Court nominee.

5. The additional millions of pages of 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. (See this post and point 3 of this post for elaboration on the preceding two sentences.) And for what purpose? To inform the judgment of senators like Chuck Schumer who have already determined to oppose Kavanaugh?

6. If Senate Democrats had any genuine interest in particular staff secretary records, they could have limited their request to such records. But (as I discuss in point 1 of this post), they adamantly refused to do so, as they aim to obstruct the Kavanaugh nomination by delay, not to discover that their fantasy allegations (point 2 here) are baseless.

Dems’ Latest Documents Hullabaloo

September 3, 2018 (link)

In a letter last Friday, the three lawyers reviewing Judge Kavanaugh’s White House counsel’s office records on behalf of former president George W. Bush advised Senate Judiciary Committee chairman Chuck Grassley that they had completed their review of those records. Their letter reports that their releases over time produced 267,834 pages of documents for public disclosure and an additional 147,250 pages of documents for the committee members’ confidential viewing (which pages Grassley has made available to all senators and all Judiciary Committee staffers). The total of more than 415,000 pages of executive-branch records more than doubles the number (170,000 pages) provided for Elena Kagan during her confirmation process (and is more than the last five nominees’ document totals combined). That’s of course on top of the best evidence of Judge Kavanaugh’s fitness to be a Supreme Court justice: his superb judicial record over his twelve years on the D.C. Circuit.

The letter also reports that the White House, after consultation with the Department of Justice, has declined, on the basis of constitutional executive privilege, to provide an additional 101,921 pages of documents. The letter states that the “most significant portion of these documents reflect deliberations and candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any President’s ability to carry out this core constitutional executive function.” The other withheld documents “likewise reflect functions within the Executive Office of the President the confidentiality of which has traditionally been considered at the core of a President’s constitutional privileges, including: advice submitted directly to President Bush; substantive communications between White House staff about communications with President Bush; and substantive, deliberative discussions relating to or about executive orders or legislation considered by the Executive Office of the President.”

With his usual extravagant excess, Senate Democratic leader Chuck Schumer immediately declared “a Friday night document massacre.” “President Trump’s decision to step in at the last moment and hide 100k pages of Judge Kavanaugh’s records from the American public,” Schumer declared, “is not only unprecedented in the history of SCOTUS noms, it has all the makings of a cover up.”

Let’s take a more sober look at the matter:

1. The process by which the White House makes a decision at the end of the process whether to withhold the records of a former president on grounds of executive privilege is exactly what President Obama’s 2009 executive order implementing the Presidential Records Act contemplates. See section 3: The White House and the Department of Justice shall review the requested records to determine “whether invocation of executive privilege is justified.” Obama’s executive order also specifies that executive privilege covers records that reflect “the deliberative processes of the executive branch.”

2. There is nothing “unprecedented in the history of SCOTUS noms” about a White House determination that certain records should not be provided to the Senate. Schumer should know this quite well, as he complained at John Roberts’s confirmation hearing in 2005 of “the refusal of the [Bush] administration to let us see any documents you [Roberts] wrote when you served as Deputy Solicitor General.” (See hearing transcript, p. 441.)

3. Nor, of course, is there any general practice of the Senate’s insisting on obtaining all executive-branch records of a Supreme Court nominee. In addition to the Roberts example, the Senate did not demand that the Obama administration provide the tens of thousands of pages from Elena Kagan’s tenure as Solicitor General. And the Obama administration would surely have invoked executive privilege in rejecting such a request. Never mind that Kagan, in stark contrast to Kavanaugh, had zero judicial experience and that her SG records would have been the materials most probative of her legal thinking.

4. Senate Democrats didn’t even disclose Elena Kagan’s records from her work as special counsel to then-committee chairman Joe Biden during the confirmation hearing for Justice Ginsburg in 1993. So their protection of their own institutional privilege stands in stark contrast to their disregard for executive privilege.

5. During the confirmation process for Justice Gorsuch, ranking committee member Dianne Feinstein, on behalf of her fellow Democrats, co-signed a letter to the Bush Library that explicitly recognized that, based on executive privilege or other grounds, some requested documents “would be withheld, even from production, entirely.” Feinstein specifically avowed her intent, at the end of the process, “to respect the invocation of privilege by a co-equal branch of our government.” To be sure, Feinstein’s stated intent was conditioned on her satisfaction with the process. My narrow point here is that, contra Schumer, neither Feinstein nor anyone else a year ago maintained that invocation of executive privilege was somehow inherently illegitimate.

6. I readily acknowledge that the volume of documents as to which executive privilege has been invoked is not trivial. In large part, that’s because Kavanaugh was very involved in judicial selection. (Kagan, by contrast, was not, and she also was in the White House counsel’s office for a much shorter period.) Further, it’s important to emphasize that the confidential communications that are being protected are in many instances not necessarily Kavanaugh’s.

For those who imagine that the cause of transparency should trump 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.

On Reported Alaska Native Opposition to Kavanaugh

September 12, 2018 (link)

According to this Huffington Post article, some self-described advocates for Alaska Natives say they’re putting intense pressure on Alaska senator Lisa Murkowski to oppose Judge Kavanaugh’s nomination to the Supreme Court over concern on how he might rule on the case of Sturgeon v. Frost, to be argued in the Court on November 5.

The Sturgeon case presents a complicated statutory question over whether the National Park Service or the state of Alaska has authority to exercise regulatory control over certain lands located within the boundaries of the national park system in Alaska. The advocates express concern that the Court might rule in a way that devastates Alaska Natives’ subsistence fishing rights.

On the premise that this is not an issue that has been entirely ginned up by opponents of the Kavanaugh nomination, let me briefly identify several reasons why it should not affect Murkowski’s assessment of Kavanaugh:

1. In his brief, John Sturgeon specifically disclaims any interest in having the Court address the so-called Katie John subsistence decisions that the Alaska Natives value:

[T]he Ninth Circuit’s application of its Katie John subsistence decisions had at least some foothold in the statute. The Court need not overturn or otherwise address the issue of subsistence management regulation in Alaska in order to rule in favor of Mr. Sturgeon. Title VIII supports an array of subsistence management regulations that are beyond the scope of Mr. Sturgeon’s challenge. The focus of Mr. Sturgeon’s challenge is instead the Ninth Circuit’s decision to expand the reasoning of the Katie John cases beyond subsistence and, in so doing, grant NPS plenary control over State waterways. [P. 34 n. 4 (citations omitted).]

Sturgeon’s lawyer has likewise explained that Sturgeon supports protections for Alaska Natives’ subsistence use: Sturgeon “has been forceful in his belief that Alaska Natives should have the rural subsistence fishing preference enforced in the Katie John line of cases. As a result, he has argued throughout this case that the courts can let him hunt with the hovercraft without disturbing Native subsistence fishing rights.”

2. Three Alaska Native organizations supported Sturgeon when his case first reached the Court four years ago. By contrast, this local Alaska publication states that “one Alaska Native group has raised concerns” with Murkowski about the Sturgeon case. So at the very least it appears that the Alaska Native views of the implications of the case are divided.

3. Murkowski herself submitted an amicus brief in support of Sturgeon in the earlier Supreme Court case. Indeed, she celebrated the interim victory that the unanimous Court gave Sturgeon as “a significant win for Alaska’s sovereignty.” She expressed concern that a ruling against Sturgeon would have been used by the federal government “as a springboard for extensive federal regulation which would have harmed hunters and stymied development on state and Native Corporation lands.”

Murkowski praised Sturgeon as “a hero for taking his challenge all the way to the Supreme Court and winning this initial, and unanimous, victory over a tortured legal interpretation by the National Park Service,” and she called the decision

only the start of the next chapter in our fight to secure the rights promised to Alaskans. We must continue to rally behind John, and support his cause, until lower courts also recognize what the Supreme Court affirmed today: that Alaska is different, even exceptional, and that federal overreach is unacceptable.

Mobbing Susan Collins

September 13, 2018 (link)

Having evidently failed to persuade Senator Collins to vote against the Kavanaugh nomination, left-wing activists have now resorted to bullying her and to concocting a campaign-contribution scheme that is of dubious legality under federal anti-bribery law.

Per this Wall Street Journal house editorial, Collins reports that her state offices have been receiving “out-of-state voicemails” that are “incredibly offensive,” including one caller who “threatened to rape one of [her] young female staffers.” In another silly stunt, anti-Kavanaugh activists have been sending Collins coat hangers, which she in turn has had the good sense to send to a local thrift shop that needs them.

In the campaign-contribution scheme, a group called Maine People’s Alliance is leading an effort to solicit funds from donors to pressure Collins to vote against the Kavanaugh nomination. Under the scheme, funds pledged will go to Collins’s opponent in her 2020 election campaign if she votes for Kavanaugh; if she votes against him, the pledges will be released. As of two days ago, the effort had raised more than one million dollars.

As the Washington Post reports, Adav Noti of the Campaign Legal Center “told the Post he thought the listing was illegal, noting that bribery is a federal crime.” The Campaign Legal Center, I’ll note, would not be mistaken by anyone for a conservative group: its board chair is Norman Ornstein, and it holds liberal positions on campaign finance and other issues.

Under federal law (18 U.S.C. § 201), no one may “directly or indirectly, corruptly give[], offer[] or promise[] anything of value to any public official … with intent … to influence any official act.” The argument that the Maine People’s Alliance scheme violates this anti-bribery law is straightforward: Maine People’s Alliance is promising Senator Collins that it will withhold a massive amount of money from her re-election opponent if she votes against Kavanaugh.

Oddly, law professor Rick Hasen, who has elsewhere mischaracterized textualism as mere “word games” (see point 2 here), breezily dismisses this argument as “wrong” without seriously engaging it. Even worse, ignoring Adav Noti entirely, he pretends that it’s just a cynical argument by conservatives.

By saying that the bribery argument is straightforward, I am certainly not contending that it is open and shut. Although it’s clear, for example, that a promise of campaign funds is a thing “of value” under the statute, it’s conceivable that a promise to withhold funds from a public official’s opponent wouldn’t qualify. It also might be that the adverb “corruptly” or the principle of lenity (construing criminal statutes leniently) would lead to a different result. And under Citizens United it’s even possible that Maine People’s Alliance, despite being a corporate entity (it’s a nonprofit corporation), has a First Amendment right to engage in its scheme.

In any event, unless I’m badly misreading things, those who expect Collins to be intimidated by these various stunts seem to have mistaken whom they’re dealing with.

Refuting Anti-Kavanaugh Smears—Introduction

September 10, 2018 (link)

Instead of opposing the Kavanaugh nomination on grounds of judicial philosophy, some on the Left are resorting to smearing Judge Kavanaugh by contending that he lied to the Senate Judiciary Committee on various topics both at his hearings in 2004 and 2006 on his D.C. Circuit nomination and at his hearing last week. See, for example, this Mother Jones article from last Friday, titled “Five Times Brett Kavanaugh Appears to Have Lied to Congress While Under Oath.” (See also, in response to such dreck, David French’s “The Character Assassination of Brett Kavanaugh.”)

No one who paid attention to last week’s hearing could think that Senate Democrats made any actual headway on these charges. Above the Law’s David Lat has done some excellent Twitter threads on the topics, and I’ve added some threads as well. But given how broadly these smears have circulated, I think it important to address and expose them in comprehensive stand-alone blog posts.

As I will show, no intelligent and fairminded person would peddle these smears. On a full understanding of each matter, there is no basis whatsoever for calling into question the truthfulness of Kavanaugh’s testimony.

I’ll add here that I am grateful to count Brett Kavanaugh as a friend. I’ve known him for some 25 years and have worked with him both in the private sector and in government, including in the early years of the George W. Bush administration, when I was principal deputy in DOJ’s Office of Legal Counsel and Kavanaugh worked in the White House. My high regard for him gives me additional motivation to refute the smears against him. But as you will see, my arguments stand on their own and do not depend on my personally attesting to his character.

Adding links to posts in series here:

Refuting Anti-Kavanaugh Smears—Manny Miranda Controversy

September 10, 2018 (link)

Let’s start with the lead item in the Left’s litany of lies—the claim by Senator Leahy and others that Judge Kavanaugh, a man widely acclaimed for his sterling character, lied at his D.C. Circuit hearings, and again last week, when he testified that he was not aware until the matter became public (in November 2003) that Senate staffer Manny Miranda had obtained access to the confidential memos of Senate Democratic staffers. As I will show, there is no evidence that casts any doubt on Kavanaugh’s testimony or on his integrity.

Background. As this investigative report by the U.S. Senate’s Sergeant at Arms explains, in December 2001 Senate Judiciary Committee staffer Manny Miranda learned that he could obtain access to the files of Democratic staffers that were stored on a shared computer drive. Over the course of the next eighteen months, a clerk operating at Miranda’s direction downloaded thousands of Democratic files. Miranda made use of the information he obtained from those files as he communicated with the Bush administration on judicial nominations.

In November 2003, newspapers published excerpts from some of the downloaded documents. At the committee’s request, the Sergeant at Arms then launched his investigation to determine how those documents had been obtained.

Kavanaugh’s 2004 and 2006 testimony. The Sergeant at Arms issued his report on March 4, 2004. The initial hearing on Brett Kavanaugh’s nomination to the D.C. Circuit took place less than two months later, on April 27, 2004. A second hearing on the nomination took place in May 2006. (The 2004 hearing transcript is here; the 2006 transcript is here.)

I set forth in this document relevant excerpts from the 2004 and 2006 hearings. For the sake of succinctness, I discuss the key passages here.

At his 2004 hearing, senators explored whether Kavanaugh had been aware of Miranda’s access to confidential Democratic memos:

Chairman HATCH. Now, this is an important question. Did Mr. Miranda ever share, reference, or provide you with any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee?

Mr. KAVANAUGH. No, I was not aware of that matter ever until I learned of it in the media late last year.

Chairman HATCH. Did Mr. Miranda ever share, reference, or provide you with information that you believed or were led to believe was obtained or derived from Democratic files?

Mr. KAVANAUGH. No. Again, I was not aware of that matter in any way whatsoever until I learned it in the media.

In light of current confusions among some folks, I will highlight that Kavanaugh did not deny that he might have received information from Miranda that was derived from those files. On the contrary, he specifically stated in response to Senator Durbin:

I cannot tell you whether something that he [Miranda] said at some point, directly or indirectly, derived from his knowledge that may have come from these documents. I just cannot speak to that at all.

Likewise, in response to a set of post-hearing questions from Senator Leahy, Kavanaugh wrote:

As I explained to Senator Durbin at my hearing, I cannot be sure which of the information orally or in writing by Senate staffers or others may have been derived in whole or in part from information obtained from Democratic computer files.

It is important to distinguish this matter—on which Kavanaugh said he could not speak with any confidence—from the separate question whether Kavanaugh ever saw any of the Democratic memos themselves. When Senator Schumer inquired whether Kavanaugh had ever seen “memos from internal files of any Democratic members given to you or provided to you in any way,” Kavanaugh flatly answered “No.” Schumer, satisfied, replied, “Thank you.”

Let’s understand why Schumer inquired whether Kavanaugh had seen the Democratic memos themselves (as distinct from materials from Miranda that might have drawn from those memos). Simply put, seeing the Democratic memos themselves would have been far more likely to set off alarm bells in Kavanaugh’s mind about how they had been obtained. Assume, for example, that Miranda gave Kavanaugh a memo from Leahy’s chief counsel to Leahy setting forth three specific topics of interest on a judicial nominee at an upcoming hearing. Now compare an email from Miranda to Kavanaugh in which he states that he expects Leahy to explore three specific topics. The memo itself would likely have led Kavanaugh to ask Miranda how the heck he obtained that memo, but the email would reasonably have struck Kavanaugh as setting forth just the sort of everyday information that Senate staffers glean.

By the time of Kavanaugh’s second hearing two years later, Senate Democrats were doing all they could to defeat Kavanaugh’s confirmation. Had they misperceived Kavanaugh’s response to Schumer to be inconsistent with his response to Durbin and with his written response to Leahy—had they, in other words, thought that Kavanaugh was flatly denying to Schumer that he had ever seen emails from Miranda that contained materials derived from the Democratic memos—they would surely have pounced. But they knew why Schumer asked the narrow inquiry that he did, and they also knew that Kavanaugh had not denied that he might have received materials derived from those memos.

At his 2006 hearing, Senator Kennedy asked Kavanaugh a question that began:

Just finally, on the documents that were taken here from the Committee and that you have the familiarity— and you have indicated that you, in reviewing them, had no understanding or awareness that they had been taken, been stolen.

In response, Kavanaugh stated:

Senator, there’s a very important premise in your question that I think is incorrect, which is I didn’t know about the memos or see the memos that I think you’re describing.

The colloquy continued:

Senator KENNEDY. Oh, you never saw any of those?

Mr. KAVANAUGH. No, Senator, that’s correct. I’m not aware of the memos, I never saw such memos that I think you’re referring to. I mean, I don’t know what the universe of memos might be, but I do know that I never received any memos and was not aware of any such memos. So I just want to correct that premise that I think was in your question. [31-32]

Again, in context, Kavanaugh was plainly testifying—and everyone attentive to the matter would have understood that he was testifying—that he never saw the Democratic memos themselves (and thus had no reason to wonder how they had been obtained), not that he had never seen materials that, unbeknownst to him, Miranda might have derived from those memos.

Last week’s Supreme Court confirmation hearing. At last week’s hearing, Kavanaugh re-affirmed his 2004 and 2006 testimony. Senator Leahy presented several documents from Kavanaugh’s White House record that Leahy claimed showed that Kavanaugh must have known that Miranda had access to Democratic files. I will address here Leahy’s leading examples.

Let’s start with the “spying” email about which former Leahy staffer Lisa Graves, in this Slate piece, says “it’s hard to imagine a more definitive clue” that Miranda was improperly obtaining confidential files from Democrats. Two tiny problems with Graves’s claim (and with Leahy’s use): First, the email isn’t from Miranda. Indeed, he’s not on the chain at all. Second, it appears to be completely unrelated to Miranda: it refers to “a friend who is a mole on the Left” who provided news about funding by outside abortion groups for a Supreme Court confirmation battle. What possible reason would Kavanaugh have to infer from that email that Miranda had access to Democratic files? None at all. (Given the substance of the email, Kavanaugh also likely would have taken the eye-catching “spying” subject line and the term “mole” to be tongue in cheek.)

So much for the most “definitive clue.” It doesn’t get any better. The first document that Leahy presented at the hearing was a July 19, 2002, email from Miranda (in this chain) to three DOJ lawyers and Kavanaugh asking why Leahy’s staff was looking into the connection between a judicial nominee and two organizations. As Kavanaugh explained his understanding of things in his 2004 hearing, and as I can attest from my own former experience as a Senate Judiciary Committee staffer, information of this sort routinely flows informally among staffers, whether directly (from Leahy’s staff to Hatch’s) or indirectly (say, from Leahy’s staff to staffers for other Democratic senators, and then to Hatch or other Republicans). There is zero reason to think that this email would have triggered an alarm bell in Kavanaugh’s head.

Well, what about Leahy’s next item, a January 13, 2003, email from Miranda to Kavanaugh that included the text of a letter from committee Democrats to Democratic leader Tom Daschle about blue-slip practice? Leahy claimed at the hearing that the letter “was clearly a draft.” But Kavanaugh’s actual response to the email at the time—“Who signed this?”—shows that he did not take it to be such. So Kavanaugh surely wouldn’t have thought that what he took to be a signed letter from senators would be confidential.

I could plow ad nauseam through Leahy’s lesser pieces of supposed evidence. But only someone suffering from myopic hindsight bias could charge that Kavanaugh must have known from these pieces of Miranda’s access to confidential files. (As if, amidst his heavy work burden and the hundreds of emails he was poring through every day, Kavanaugh would have been spending his scarce time scrutinizing emails from Miranda to try to discern where Miranda’s information came from.)

There is, in short, no evidence that calls into question Kavanaugh’s testimony that he was unaware of Miranda’s activities at the time they were occurring. Suggestions that Kavanaugh testified deceptively (much less that he committed perjury) are a baseless smear of a man of outstanding character.

Refuting Anti-Kavanaugh Smears—NSA’s Warrantless Wiretapping Program

September 11, 2018 (link)

Let’s go the next item in the Left’s absurd litany of lies—the claim that Judge Kavanaugh testified untruthfully at the 2006 hearing on his D.C. Circuit nomination when he stated that he did not learn of the NSA’s warrantless wiretapping program, code-named Stellarwind, until the New York Times ran a story on it in December 2005.

Unlike the Manny Miranda controversy, which is sufficiently complicated that folks who aren’t paying attention might be a bit confused, this claim is patently ridiculous.

Here is Kavanaugh’s testimony on the matter at his 2006 hearing (pp. 42-43 of transcript):

Senator LEAHY. What was your reaction—as Staff Secretary, you see virtually every piece of paper that goes to the President; is that correct?

Mr. KAVANAUGH. On many issues, yes, Senator. Not everything, but on many issues.

Senator LEAHY. Did you see documents relating to the President’s NSA warrantless wiretapping program?

Mr. KAVANAUGH. Senator, I learned of that program when there was a New York Times story—reports of that program when there was a New York Times story that came over the wire, I think on a Thursday night in mid December of last year.

Senator LEAHY. You had not seen anything, or had you heard anything about it prior to the New York Times article?

Mr. KAVANAUGH. No.

Senator LEAHY. Nothing at all?

Mr. KAVANAUGH. Nothing at all.

As this New York Times article from last week makes clear, Leahy has zero evidence to contest Kavanaugh’s 2006 testimony that he had had no knowledge of the Stellarwind program. As former Obama administration official Neal Katyal has explained, “There is always a record of everyone read into highly classified SCI [sensitive compartmented information] programs and you even have to sign a ledger.” Per the NYT article, Kavanaugh was not read into the Stellarwind program, and, as Katyal points out, it would “be easy to verify” if he had been.

Leahy surely knows that Kavanaugh was not read into Stellarwind, and he did not contend otherwise at last week’s hearing. Rather, as the NYT article discusses, Leahy cited an email dated September 17, 2001—six days after the terrorist attacks—in which Kavanaugh inquired of DOJ lawyer John Yoo: “Any results yet on the 4A [Fourth Amendment] implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” Kavanaugh explained to Leahy that “it was all hands on deck on all fronts” in “farming out assignments” in the immediate aftermath of 9/11 and that any such legal inquiry on September 17 was not conducted within the Stellarwind program (which, as the NYT article points out, wasn’t initiated until October 4, 2001).

In short, Kavanaugh’s 2006 testimony on this matter was entirely truthful, and Leahy’s effort to create a fog of confusion about it should not mislead anyone.

(I repeat that I have benefited from, and am drawing on, David Lat’s excellent tweet threads on these matters.)

Refuting Anti-Kavanaugh Smears—Interrogation

September 12, 2018 (link)

Another item in the Left’s litany of lies is its claim that Brett Kavanaugh testified untruthfully at the 2006 hearing on his D.C. Circuit nomination in responding to a question from Senator Durbin about what he knew about an earlier judicial nominee’s “role in crafting the [George W. Bush] administration’s detention and interrogation policies.” This claim depends entirely on stripping Kavanaugh’s response out of context and on rejecting his very sensible account of what he was addressing.

Here is the relevant portion of the exchange between Durbin and Kavanaugh (p. 27 of transcript):

Senator DURBIN.… In September 2003, the President nominated William Haynes to be a judge on the Fourth Circuit. As General Counsel to the Department of Defense, Mr. Haynes had been the architect of the administration’s discredited detention and interrogation policies. For example, Mr. Haynes recommended that Secretary Rumsfeld approve the use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity, and for forcing detainees into painful stress positions. During the 108th Congress, Mr. Haynes’s nomination stalled after his involvement in this scandal came to light. Just this February, the President decided to renominate him.

What was your role in the original Haynes nomination and decision to renominate him? And at the time of the nomination, what did you know about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies?

Mr. KAVANAUGH. Senator, I did not—I was not involved and am not involved in the questions about the rules governing detention of combatants or—and so I do not have the involvement with that. And with respect to Mr. Haynes’s nomination, I’ve—I know Jim Haynes, but it was not one of the nominations that I handled. I handled a number of nominations in the Counsel’s Office. That was not one of the ones that I handled.

In context, it is eminently sensible, if not indeed incontestable, to read Durbin’s closing question “about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies” in the context of Durbin’s set-up for that question: his condemnation of the “administration’s discrediteddetention and interrogation policies,” such as “the use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity, and for forcing detainees into painful stress positions.” So when Kavanaugh stated that he was “not involved in the questions about the rules governing detention of combatants,” it ought to be evident (as it was to me when I wrote point 2 in this post a month ago) that he was referring to the “discredited” policies that Durbin was objecting to. (Had Durbin had any confusion on the matter, he could have followed up to clarify at the time.)

In his hearing last week, that is exactly what Kavanaugh explained—that he understood Durbin’s question in 2006 to be probing whether Kavanaugh “was involved in the program that two other nominees [Haynes and Jay Bybee] had been involved in,” concerning “enhanced interrogation techniques for the detainees.” For Kavanaugh could not have been expected to know who participated in the highly classified program unless he himself had been read into it.

It is undisputed that Kavanaugh was not read into the program that addressed enhanced interrogation techniques for the detainees and therefore had no involvement in the program. As this Washington Post article reports, former deputy White House counsel Tim Flanigan said that the program “was tightly ‘compartmentalized’ and that Kavanaugh was not authorized to know about it,” and a second official “confirmed Flanigan’s recollection.” Further, as Kavanaugh pointed out at the hearing, the exhaustive 500-page report on the program that the Senate Select Committee on Intelligence, under the direction of Senator Feinstein, issued in 2012, does not mention Kavanaugh’s name a single time.

In sum, Kavanaugh’s 2006 testimony on interrogation was entirely truthful.

Refuting Anti-Kavanaugh Smears—Pryor Nomination

September 12, 2018 (link)

The fourth item in the Left’s litany of lies (as presented in this Mother Jones article) is the claim that Judge Kavanaugh testified untruthfully at his 2004 confirmation hearing about his role in the judicial nomination of William Pryor. In support of this charge, Senator Leahy contends that Kavanaugh “testified—repeatedly—that he ‘was not involved in handling his [Pryor’s] nomination.’” But it is Senator Leahy who is being deceptive—and outrageously so.

At his 2004 hearing (full transcript here), Kavanaugh testified that William Pryor “was not one of the people that was assigned to me” (p. 84). When asked whether he was “involved in any of the vetting” of Pryor, Kavanaugh stated “the way the work is divvied up, that wasn’t one of the ones I”—only to be interrupted before he could complete his explanation (p. 85). Far from denying any role in the Pryor nomination, Kavanaugh stated that he “might have attended a moot court session” (p. 85). Further, his statement that he would not “disclose internal discussions and deliberations” about the Pryor nomination (p. 86) clearly implies that he might have been involved in such discussions and deliberations.

In context, Kavanaugh’s statement that he “was not involved in handling” the Pryor nomination (p. 85) clearly means only that the Pryor nomination was not in his portfolio. That’s consistent with ordinary usage: Imagine a staff meeting in which someone asked, “Who’s handling the Pryor nomination?” You’d expect the person who had been “assigned” the nomination to answer.

If this weren’t already clear enough from Kavanaugh’s oral testimony, his response to a written question (part of the same hearing record, p. 94) dispels any possible doubt:

I was one of eight associate counsels in the White House Counsel’s office who participated in the judicial selection process. At Judge Gonzales’ direction, we divided up states for district court nominations, and we divided up appeals court nominations as vacancies arose. Our roles included discussions with staffs of home-State Senators and other state and local officials, review of candidates’ records, participation in candidate interviews (usually with Judge Gonzalez and/or his deputy and Department of Justice lawyers), and participation in meetings of the judicial selection committee chaired by Judge Gonzales. That committee would make recommendations and provide advice to the President. Throughout this process, we worked collaboratively with Department of Justice attorneys. It is fair to say that all of the attorneys in the White House Counsel’s office who worked on judges (usually ten lawyers) participated in discussions and meetings concerning all of the President’s judicial nominations.

So contrary to what Leahy and other Democrats are now suggesting, Kavanaugh never contended that he had no involvement at all on the Pryor nomination.

I’ll note further that when Kavanaugh had his second hearing on his D.C. Circuit nomination in May 2006 (transcript here), Senate Democrats were eager to do all they could to defeat his nomination. They asked many questions at that second hearing that followed up on matters at the first hearing, but no one suggested that his 2004 testimony regarding Pryor was internally inconsistent. That’s obviously because they recognized that, understood in context, his testimony that he “was not involved in handling” the Pryor nomination meant that he was not the White House lawyer with the lead responsibility for it, not that he played no role at all in it.

Refuting Anti-Kavanaugh Smears—Pickering Nomination

September 12, 2018 (link)

Okay, now we’ve reached the bottom of the barrel, the fifth and last item that this Mother Jones article presents—and lots of folks on the Left mindlessly trumpet—as a supposed instance in which Judge Kavanaugh “appears to have lied to Congress while under oath.” Get ready: Mother Jones complains that Kavanaugh testified at his 2006 hearing that Charles Pickering “was not one of the judicial nominees that I was primarily handling.” According to Mother Jones, “new emails show [Kavanaugh] may have been more involved than he let on.”

David French and Carrie Severino demolished this charge a month ago, so I’ll be brief.

As I pointed out in my post on the Pryor nomination, Kavanaugh had explained at his 2004 hearing (and in post-hearing responses) that he had lead responsibility on some judicial nominations and that he “participated in discussions and meetings” on all others. So his testimony in 2006 that Pickering “was not one of the judicial nominees that I was primarily handling” (hearing transcript, p. 38) means that he did not have lead responsibility on that nomination. That is a fact that no one contests. Indeed, as David French reports, Pickering says he “cannot recall a single interaction with Brett Kavanaugh about my judicial nomination” and does “not even remember knowing his name at the time.”

Kavanaugh’s statement that he was not “primarily handling” the Pickering nomination implies nothing about whatever other participation he might have had in it. As David and Carrie discuss in extensive detail that I won’t repeat, the various minor actions reflected in the “new emails”—circulating articles, booking a conference room, responding to a request from the White House press office—are entirely compatible with the fact that someone else in the White House counsel’s office had the lead role on the Pickering nomination.

Ed Whelan on the Kavanaugh Nomination

Selected Publications

Trump Picks Brett Kavanaugh

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

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

Botched Account of Kavanaugh’s Fourth Amendment Record

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

Schumer’s Delusory Document Demand

Contra Podesta and Stern on Schumer’s Delusory Document Demand

More on Schumer’s Delusory Document Demand

Leading Liberal Feminist Supreme Court Advocate Supports Kavanaugh

Badly Muddled Account of Routine Trump Casino Ruling

Wildly Whaling on Kavanaugh

NYT Article Gets Kavanaugh Email Wrong

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

More on Democrats’ Delusory Document Demands

Vicious Distortion of Kavanaugh Ruling

NYT Magazine Article on Trump’s Appellate Appointments

A Viewer’s Guide to Kavanaugh Hearing

ABA Unanimously Awards Kavanaugh Highest “Well Qualified” Rating

Wrap-Up on Democrats’ Delusory Document Demands

Dems’ Latest Documents Hullabaloo

On Reported Alaska Native Opposition to Kavanaugh

Mobbing Susan Collins

Refuting Anti-Kavanaugh Smears—Introduction

Refuting Anti-Kavanaugh Smears—Manny Miranda Controversy

Refuting Anti-Kavanaugh Smears—NSA’s Warrantless Wiretapping Program

Refuting Anti-Kavanaugh Smears—Interrogation

Refuting Anti-Kavanaugh Smears—Pryor Nomination

Refuting Anti-Kavanaugh Smears—Pickering Nomination

EPPC BRIEFLY

The Promise and Peril of Civic Renewal: Richard John Neuhaus, Peter L. Berger, and “To Empower People”

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