Brett [M.] Kavanaugh wrote in a strikingly explicit 1998 memo that he was “strongly opposed” to giving then-President Bill Clinton any “break” in the independent counsel’s questioning about his sexual relationship with intern Monica Lewinsky, according to a document released Monday.
In the memo, Kavanaugh, who worked as an associate counsel for independent counsel Ken Starr and is now President Trump’s nominee for the U.S. Supreme Court, laid out several proposed questions, including, “If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?”
It is not clear whether this or any single document is going to change the outcome in the Senate’s consideration of Kavanaugh’s nomination, but we don’t know what we don’t know. And that is why the Republicans’ insistence on jamming the nomination through a month before the midterm elections and before all available documents are turned over to the Senate is so unwise.
On the Senate floor on Monday, Minority Leader Charles E. Schumer (D-N.Y.) complained, “First, we are not allowed to see the most important documents of Judge Kavanaugh’s time as [staff secretary for President George W. Bush]. Second, of the [special] counsel documents, which is a small percentage of his total documents, those are being prescreened by a Republican lawyer, not an impartial observer who tells us which ones we can have and which ones we can’t, without giving us any reason why one is okay and one is not.” Included in the papers could be highly relevant materials about Kavanaugh’s views on executive privilege, executive power and other issues particularly germane to a presidency that operates under the delusion that the law doesn’t apply to the head of the executive branch.
Republicans are hiding the ball seemingly without thinking this through. If they had all the documents, red-state Democrats and persuadable Republicans might find some reason to support him. Now they can vote “no” with an easy explanation: They weren’t given a chance to review all the relevant materials.
In rushing forward, Senate Republicans only raise suspicions that there is something problematic in the documents. However, there’s an easy way to resolve this, and it rests with Republicans such as Sen. Susan Collins (R-Maine) — who, coincidentally, is scheduled to meet with Kavanaugh Tuesday morning, according to her office. Kavanaugh can personally request the prompt disclosure of all relevant materials before the hearing. If he declines to do so, and the Senate is facing a hearing without all relevant materials, Collins and others can state honestly that they cannot, in good conscience, confirm a Supreme Court justice with lifetime tenure while one side is withholding relevant information. A few Republicans — they can only lose two if Sen. John McCain (Ariz.) does not return for the vote — is all it takes to slow down the runaway train.
This is all especially relevant since there is an entirely legitimate concern that Trump is being allowed to pick his own judge in cases involving his personal liability and/or the progress of the special counsel’s investigation. The Senate is supposed to confirm Kavanaugh without a complete view of his views on executive power? That’s simply unreasonable — unless he agrees, as I think he should, to recuse himself from cases regarding the Russia investigation that involve Trump personally.
Furthermore, Sen. Sheldon Whitehouse (D-R.I.) has raised another issue germane to this particular nomination. As we have written, Kavanaugh got onto the approved list of nominees through an utterly non-transparent process involving unknown people and groups that may eventually have business before the court. Whitehouse sent a letter on Monday to Sen. Charles E. Grassley (R-Iowa), the chairman of the Judiciary Committee, asking “to make publicly available all documents in Judge Kavanaugh’s files related to his decades-long association with Leonard Leo and/or the Federalist Society.”
The letter continues, “It has been widely reported that President Trump outsourced the selection of his Supreme Court nominees to unaccountable private individuals and organizations. That process has been driven by the Federalist Society and its Executive Vice President, Leonard Leo.” Whitehouse also points out that, during a 2016 interview, “then-candidate Donald Trump stated: ‘We’re going to have great judges, conservative, all picked by the Federalist Society.’ In early 2016, then-candidate Trump released a list of eleven potential Supreme Court nominees, culled with the help of Mr. Leo and the Federalist Society. He released another list of 21 judges in September 2016, and then a list of 25 judges in November 2017 when he was President.”
It should be noted that, by September 2017, the special counsel investigation was well underway.
Whitehouse’s letter continues:
Despite his prominent position on the District of Columbia Circuit Court of Appeals and deep ties to the Federalist Society, Judge Kavanaugh appeared only on the third list. Indeed, according to his Judiciary Committee questionnaire, Judge Kavanaugh has been a member of the Federalist Society since 1988 and has spoken at Federalist Society events over 50 times. This suggests some circumstance changed over the past year to trigger Judge Kavanaugh’s inclusion and ultimate selection by the President.
During that period, the Federalist Society played an integral role in the selection of judicial nominees, and Mr. Leo appears to be playing as significant a role as anyone in that process. As he did for the nomination of Justice [Neil M.] Gorsuch, Mr. Leo is currently on leave from the Federalist Society to assist the White House with Judge Kavanaugh’s nomination. . . .
Even with the slow production of documents from the limited universe you requested, I am already aware of a substantial number of Kavanaugh documents referencing or related to Mr. Leo, evidencing his longstanding relationship with Mr. Kavanaugh, and demonstrating Mr. Leo’s direct influence over Republican judicial appointments dating back to at least the Bush administration. Americans should understand how and why — and on whose behalf — a person is selected to fill a life-tenured seat on our nation’s highest court.
Whitehouse also raises an extraordinary fact: The man integral to culling a list for the court acted as “the attorney for the BH Group LLC, and as president of the BH Fund. The BH Group donated $1 million to Trump’s inaugural committee.” We have a group which conducted a private process, not subject to any federal record-keeping rules nor any conflict-of-interest guidelines (and may have included those who made financial contributions to benefit Trump), but the Senate is supposed to let that process remain secret?
The Federalist Society has some fine lawyers as members. It puts on interesting programs. But when it goes from a professional and educational group to an adjunct of the administration, it must be held to the same level of transparency. If it were the American Civil Liberties Union that put together a list for Hillary Clinton, you could bet the Republicans would demand every scrap of paper and demand its officials appear for testimony under oath.
Republicans are making this much harder than it needs to be. Get the documents, put them out and take the vote. Senators can then assess whether they’d be comfortable allowing Kavanaugh to rule on Trump’s criminal liability and issues relevant to possible impeachment. That’s what we are talking about here, right?