By Charles Babington
Washington Post Staff Writer
Tuesday, May 9, 2006
Senate Democrats today will try to make the case that Brett M. Kavanaugh is too much a conservative activist to deserve a federal appellate judgeship. In the process, they may experience some unsettling flashbacks to the Supreme Court confirmation of John G. Roberts Jr. -- a big success for President Bush and Senate Republicans.
Like Roberts, Kavanaugh, 41, has spent most of his professional life in the service of conservative causes and bosses. Now White House staff secretary, Kavanaugh was deeply involved in Kenneth W. Starr's investigations of President Bill Clinton regarding Whitewater and Monica S. Lewinsky.
Kavanaugh also is widely described as brilliant, affable and disarming, attributes that prevented Democrats from successfully demonizing Roberts. And as they did with the Roberts nomination, Democrats are focusing largely on what they do not know about the nominee, an approach that gained little traction in the chief justice's confirmation debate.
But those who hope to block Kavanaugh's confirmation to the U.S. Court of Appeals for the D.C. Circuit -- generally seen as second only to the Supreme Court in importance -- received some new ammunition yesterday from the American Bar Association.
When the ABA first reviewed Kavanaugh in 2003, it said in a statement yesterday, "it was noted that he had never tried a case to verdict or judgment" and "he had very little experience with criminal cases." The statement said: "Additional interviews conducted in 2006 expanded upon those earlier concerns. One judge who witnessed the nominee's oral presentation in court commented that the nominee was 'less than adequate' before the court, had been 'sanctimonious,' and demonstrated 'experience on the level of an associate.' A lawyer who had observed him during a different court proceeding stated: 'Mr. Kavanaugh did not handle the case well as an advocate and dissembled.' "
The statement also said that some interviewees concluded that Kavanaugh was "insulated."
White House spokeswoman Dana Perino, responding to the statement, said, "In 42 votes cast in the three ABA reviews, all 42 found Mr. Kavanaugh to be qualified or well qualified to serve on the D.C. Circuit."
The White House also notes that even though the ABA recently downgraded its rating of Kavanaugh, the lowest grade he received was "qualified." A minority of the reviewers rated him "well qualified."
Today's hearing before the Senate Judiciary Committee will provide Democrats their first opportunity to use the bar association's latest mix of praise and criticism and to gauge the sentiment for an eventual all-out fight to block the nomination in the full Senate, even if it means a Democratic-sponsored filibuster.
A year ago, the Senate's battle over judicial filibusters brought the chamber to the edge of a crisis. Majority Leader Bill Frist (R-Tenn.) vowed to deploy the "nuclear option," a rule change that would bar such filibusters. At the last moment, seven Republicans and seven Democrats struck a compromise that averted a showdown and allowed some nominees to be confirmed while others were abandoned.
Bush's nomination of Kavanaugh to the D.C. Circuit, first made nearly three years ago, was not addressed. Frist, eager to renew the confirmation process with a choice likely to inspire conservatives and to frustrate Democrats, has chosen Kavanaugh as the test case.
Like Roberts, Kavanaugh has legions of friends from all political viewpoints who endorse him unequivocally. "I am a liberal Democrat, and during the time we have been friends, Brett and I have disagreed on most political questions we have discussed," Washington lawyer Pamela Harris, a Yale Law School classmate, wrote to the committee. "But not once in that time has Brett been anything less than fully respectful of my views or unwilling to hear and take seriously what I have to say. . . . He never belittles or condescends to those with whom he disagrees."
But Judiciary Committee member Charles E. Schumer (D-N.Y.) said yesterday that the ABA statement "raises real questions about Kavanaugh's suitability as a judge" and that "the White House is trying to push through an ideologue."
Kavanaugh grew up as an only child in Bethesda. His mother, Martha, was a Montgomery County Circuit Court judge. His father, Edward, also a lawyer, headed the Cosmetic, Toiletry and Fragrance Association for two decades.
Brett Kavanaugh was a star student and athlete at Mater Dei School and Georgetown Preparatory School. He received his bachelor's and law degrees at Yale and then began a fast ascent in the world of conservative law and politics. After clerking for two federal appellate judges, he received a fellowship in the solicitor general's office, which was headed by Starr. His colleagues included Roberts.
Kavanaugh clerked for Justice Anthony M. Kennedy in 1993 and 1994 and then returned to work for Starr, who had been named independent counsel in the Whitewater investigation. Some Democrats saw the wide-ranging probe as a political vendetta against Clinton, but Kavanaugh -- and Starr -- pushed into new territories after the Lewinsky scandal broke.
Much of the Democrats' mistrust of Kavanaugh stems from those days, although some colleagues say he was less aggressive than Starr. According to several accounts, Kavanaugh unsuccessfully urged Starr to withhold the scandal's more tawdry details from Congress and the public. Nonetheless, Schumer has opined that the nominee "would probably win first prize as the hard right's political lawyer."
Kavanaugh's ties to Bush were strengthened when he played a major role in the legal battle over Florida's fiercely contested 2000 presidential vote. He later joined the White House counsel's office and then became staff secretary, where he oversees all paper that goes into the Oval Office. Two years ago, he married Bush's personal secretary, Ashley Estes.
Senators will ask Kavanaugh what he knows about administration policy on domestic surveillance, interrogation of detainees and other issues that have arisen since his first hearing, in April 2004. At that time, he proved fairly adept at fending off Democrats' questions and attacks. "My background hasn't been in party politics," he told them. "My clients are not Republican or Democratic clients, just clients."
Democrats will try again today, hoping the ABA statement will bring a new punch.