“Ultimately, the umpire was Brett,” said Karl Rove, a Bush adviser and one of the people Kavanaugh worked with closely as staff secretary.
Many Supreme Court justices over the decades have held strong political views or been active in liberal or conservative causes. Justice Elena Kagan, a law professor, served as an associate counsel and adviser in the Clinton White House. Former Justice Abe Fortas privately advised President Lyndon B. Johnson on political matters. William Rehnquist was active in the Republican Party in Arizona before he became a justice.
But no justice in recent memory has worked as intently as Kavanaugh at the highest levels of the nation’s political machinery, scholars said. His time as staff secretary, from 2003 to 2006, was the culmination of a political and legal apprenticeship that lasted more than a decade, enabling him to demonstrate his zeal for conservative principles and putting him on a path to the Supreme Court.
Documents and interviews show that while Kavanaugh was not a policymaker, he was directly involved in helping the White House manage a wide array of sensitive matters, including the war on terrorism, the treatment of enemy combatants and warrantless wiretapping.
“It put Kavanaugh at the center of every political and policy decision at the Bush White House,” said Peter Irons, professor emeritus at the University of California at San Diego and author of several books about the Supreme Court. “He is exactly the kind of person that the legal conservative movement wants on the court.”
His tenure is now a source of controversy, because much of his work in the White House has been cloaked by presidential privilege. Republicans have declined to request records from that era, suggesting that they would not be revelatory.
“He was more or less a traffic cop,” Senate Majority Whip John Cornyn (R-Tex.) said last month.
Questions about Kavanaugh’s work in the political realm surfaced in 2004, after he was nominated by Bush to be a circuit court judge. Sen. Charles E. Schumer (D-N.Y.) alleged that the “nomination appears to be judicial payment for political services rendered.”
“In fact, Mr. Kavanaugh would probably win first prize as the hard-right’s political lawyer,” Schumer said, according to a transcript of the nomination hearing.
Kavanaugh defended himself vigorously, saying that prior political affiliations did not necessarily impede a good judge’s performance.
“There is one kind of judge,” he said during the hearing. “There is an independent judge under our Constitution. And the fact that they may have been a Republican or Democrat . . . in a past life is completely irrelevant to how they conduct themselves as judges.”
As the Senate Judiciary Committee prepares for confirmation hearings starting Sept. 4, much remains unknown about that significant stretch of Kavanaugh’s career.
Most of the millions of documents relating to his White House service will not be available for review before his confirmation. The committee has received batches of records from the George W. Bush library, releasing tens of thousands of documents in recent weeks. But most relate to Kavanaugh’s years in the White House Counsel’s Office, before he became staff secretary, and have been devoid of telling detail. Democrats have complained they can’t properly take stock of Kavanaugh.
“We asked for documents from Kavanaugh’s time as staff secretary because he admitted those years shaped his views as a judge, particularly with regard to issues of executive power,” Sen. Dianne Feinstein (D-Calif.) said in a statement.
“We also need to know more about his involvement with controversial issues like torture, warrantless wiretapping and presidential signing statements,” Feinstein said. “He has a far more extensive record in politics than previous nominees. It’s critical that senators see the full picture to understand how those political positions influenced his current views.”
White House spokesman Raj Shah said Kavanaugh has demonstrated his commitment to taking a judicious and fair-minded approach to the Supreme Court.
“What will tell you most about the type of Supreme Court Justice he will make are the 307 opinions he wrote as a Judge on the D.C. Circuit Court of Appeals, a dozen of which were affirmed by the Supreme Court, over the last 12 years,” Shah said in a statement. “His opinions are widely cited by judges, appointed by presidents of both parties, in courts across the country. They demonstrate independence and a fidelity to our laws and constitution.”
To find clues about Kavanaugh’s role as staff secretary, The Washington Post examined more than 2,000 pages of emails and other documents previously released by the Bush library, along with scores of emails contained in 191 pages of documents released last week by the Justice Department in response to a Freedom of Information Act request by Fix the Court, a
group advocating for more transparency in the federal court system.
The Bush library and Justice Department emails have been heavily redacted, with most of the content removed, as part of the government’s normal application of exemptions under the federal Freedom of Information Act or the Presidential Records Act. But combined with Kavanaugh’s public statements and writings, the email addresses and subject lines provide granularity to a composite portrait of him in the years he was staff secretary and before.
Kavanaugh was responsible for managing the process that helped shape the president’s thinking and fueled the Bush administration agenda. “He was everywhere,” said Michael Gerson, a speechwriter in the Bush administration and now a syndicated columnist at The Post.
Gerson, Rove and others said Kavanaugh was an honest broker, even as he conveyed competing ideas to the president.
“Virtually every piece of paper had to pass through the staff secretary’s hands,” Rove said.
Kavanaugh, now 53, has described the White House jobs — ending in 2006 when he was confirmed as a federal judge on the U.S. Court of Appeals for the D.C. Circuit — as an unrelenting mix of demands that required him to constantly consider the legal, policy, legislative, political, international and public relations implications of White House actions.
“I spent a good deal of time on Capitol Hill, sometimes in the middle of the night, working on legislation — it’s not a pure or pristine process,” Kavanaugh wrote in an essay for Marquette Lawyer Magazine in the fall of 2016.
“I worked on drafting and revising executive orders, as well as disputes over executive branch records,” he wrote. “I saw regulatory agencies screw up . . . I saw the good and the bad sides of a president’s trying to run for reelection and to raise money while still being president. I was involved in the process for lots of presidential speeches. I traveled almost everywhere with the president for about three years. I mostly recall the massive decisions that had to be made on short notice.”
Kavanaugh’s roots in the conservative legal world date to at least 1988. While attending Yale Law School, he joined the conservative-libertarian Federalist Society for Law and Public Policy Studies, and has since spoken at dozens of the group’s events.
In the early 1990s, he worked under Kenneth Starr in the Solicitor General’s Office in the administration of President George H.W. Bush. He served as clerk to Supreme Court Justice Anthony M. Kennedy and worked under Starr again in the independent counsel’s office that investigated President Bill Clinton.
Some of the emails released by the Bush library come from Kavanaugh’s days in the White House Counsel’s Office, which he joined in 2001.
On October 10, 2002, Kavanaugh received or was copied on emails relating to enemy combatants and the Guantanamo prison. The subject line of one email read: “If you get asked about detainees at Quantanamo.” The email contained a set of Defense Department talking points from Jan. 17, 2002, titled “The War Against Terrorism.”
“Karen — here are some on the GITMO folks. I am working with Justice on the domestic people we are holding. Stay turned for more talkers.”
The emails also show that Kavanaugh worked with others on up to 22 drafts to refine Bush’s speeches, while also editing radio addresses and routine statements. People familiar with his work said he was effectively an intellectual body man for the president, one who constantly asked questions of his colleagues and kept in mind the implications of the president’s statements and policies.
Kavanaugh was often at Bush’s side, here and abroad. On June 5, 2004, the day that former president Ronald Reagan died, Kavanaugh had to wake up Bush in the American Embassy during a trip to France to make a statement.
On Sept. 3, 2005, Kavanaugh received a call that Rehnquist had died. He needed to meet with Bush and White House speechwriters early the next morning to prepare remarks.
“I was profoundly sad, but I had no time to dwell on it,” Kavanaugh recalled in a lecture published last year by the American Enterprise Institute.
In December 2005, not long before he left the White House, Kavanaugh joined in an administrative scramble to respond to bombshell revelations in the New York Times of a warrantless wiretapping program that was launched after Sept. 11, 2001, according to the Justice Department emails.
Kavanaugh and others weighed in on talking points from the National Security Agency that spelled out the legal authorization for the surveillance program. On Dec. 20, 2005, Kavanaugh recommended that amended talking points be shared with the NSA before their release.
“I think we should make sure General Hayden sees these before they go,” Kavanaugh wrote.