Court Pick Deflects Questions On White House Controversies

By Charles Babington
Washington Post Staff Writer
Wednesday, May 10, 2006

As White House staff secretary, Brett M. Kavanaugh has a desk near the Oval Office, and he sees most letters and documents that go in there before President Bush does. But Kavanaugh, nominated by Bush to an appellate court judgeship, testified yesterday that he knew nothing about the administration's warrantless surveillance program, a now-rescinded memo on torture and White House visits by former lobbyist Jack Abramoff until they were in the newspapers.

In a 3 1/2- hour hearing before the Senate Judiciary Committee, Kavanaugh frustrated Democrats' efforts to link him, even tangentially, to the administration's biggest controversies. As have many other judicial nominees, he declined to answer some questions, cited forgetfulness in sidestepping others, and gave little insight into his political and philosophical views.

Some Democrats say that Kavanaugh, 41, is too closely tied to GOP politics -- and too unwilling to answer questions -- to deserve a lifetime appointment to the U.S. Court of Appeals for the D.C. Circuit.

But Republicans, who heatedly defended him, predicted that is where he will land after the committee vote scheduled tomorrow and a subsequent confirmation vote by the full Senate, where Republicans hold 55 of the 100 seats.

Democrats did manage a few concessions from Kavanaugh yesterday. He said Bush political adviser Karl Rove has been a regular participant in weekly meetings of about 15 administration officials who discuss which potential nominees should be pushed for the federal bench. Sen. Charles E. Schumer (D-N.Y.) said Rove's participation disproved Kavanaugh's earlier claims that political considerations play no role in judicial appointments.

Kavanaugh also said that his previous boss and mentor -- former independent counsel Kenneth W. Starr -- should have been confined to the Whitewater investigation and not headed subsequent investigations into Clinton administration scandals involving the White House travel office and intern Monica S. Lewinsky. The public came to see Starr as a permanent prosecutor of Bill Clinton, he said, and it "harmed the credibility of the investigation."

Committee Democrats, acknowledging that the GOP-controlled panel is virtually certain to endorse Kavanaugh, spent some of the hearing criticizing another appellate court nominee, District Judge Terrence W. Boyle of North Carolina. Ranking Democrat Patrick J. Leahy (Vt.) called on Bush to withdraw Boyle's nomination, which several civil rights and law enforcement groups oppose. In an interview, committee Chairman Arlen Specter (R-Pa.) said conflict-of-interest allegations will be "disqualifying" unless Boyle can dispute or explain published reports that he held stock in companies involved in cases he was hearing.

Throughout yesterday's hearing, Democrats complained that Kavanaugh's responses were so unenlightening that they could render no judgment on his fitness for the appellate court. "I don't know where to go in questioning you," Sen. Richard J. Durbin (D-Ill.) said after Kavanaugh declined to say whether another federal judge should have been disqualified for earlier having written a White House memo -- later repudiated -- that appeared to justify torture of detainees in the terrorism fight.

But Kavanaugh gave little ground. He declined to say whether he would have voted to convict Clinton in the impeachment trial that he and Starr helped bring about. He declined to say whether he would be a judge in the mold of Supreme Court Justices Antonin Scalia and Clarence Thomas, whom Bush has often praised.

Even a question of why it took him seven months to answer a set of committee questions in 2004 triggered an impasse. When Kavanaugh repeatedly said, "I take responsibility," instead of explaining why the delay occurred, an exasperated Leahy said, "We're not playing games here."

Some Republicans, including Orrin G. Hatch of Utah and Jeff Sessions of Alabama, spent their five-minute rounds praising Kavanaugh and not asking a single question. Sen. John Cornyn (R-Tex.) asked his first and only question -- about a school prayer case -- with 23 seconds left in his opening round.

Kavanaugh pledged that if confirmed, "I will interpret the law as written, not impose personal preferences." He said he is a registered Republican, but added, "there's no such thing as a Republican judge or a Democratic judge."

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