As former White House staff secretaries, we watch with bemusement as Republicans attempt to play down Supreme Court nominee Brett M. Kavanaugh’s role in that position when he held it under President George W. Bush. The Republican phrase du jour is that Kavanaugh was just a “traffic cop.” As in, merely a paper pusher in the White House.
Yet Kavanaugh himself, in describing his role as staff secretary at a 2004 Senate hearing, said that his job was “to give recommendations and advice” to the president. It seems apparent that Republicans — such as Senate Judiciary Committee Chairman Charles E. Grassley (Iowa), who has refused to request documents related to Kavanaugh’s staff secretary tenure on behalf of the committee — are trying to keep closed the potential Pandora’s box of Kavanaugh’s staff secretary documents before they get out into public view. We should not tolerate this obstructionism.
First, staff secretaries are not traffic cops. They don’t just wave memos or speeches through to the president or hold them in the queue until the next day. They are integrally involved in the decision-making process for an extraordinarily wide range of policy issues, since virtually everything comes to them before it goes to the president.
When we handled the job for President Bill Clinton, in much the same way that staff secretaries did for President George H.W. Bush, we wrote concise cover memos for every decision memo that went to the president. We summarized the underlying memo, identified the core decision points and options, and conveyed the views of key senior staff members from whom we had sought comment. We wrote hundreds of these memos. When we thought a memo needed further discussion before going to the president, we worked with the chief of staff to arrange a meeting either to reach consensus on the advice or to better focus the points of disagreement. We had our hands in nearly every important matter that went to the president.
Of course, we tried to be honest brokers when presenting policy options and the views of senior advisers. But staff secretaries do get pulled into active debates about options. As trusted senior advisers, we often offered our thoughts on the right course for the president to take. Staff secretaries before us, such as Richard G. Darman for President Ronald Reagan and James Ciccone for President George H.W. Bush, were important senior advisers as well. And before he resigned from the Trump White House last year, staff secretary Rob Porter was widely described as an influential adviser.
It is clear that Kavanaugh, too, was an important player in the George W. Bush White House. Bush’s top adviser, Karl Rove, described Kavanaugh as being at the heart of the Bush administration in shaping White House policy. Kavanaugh himself has said he worked on legislation, drafted executive orders and had a frequent role on presidential speeches. Indeed, that Kavanaugh was promoted from the White House counsel’s office to assistant to the president (the highest rank in the White House structure) and staff secretary is a clear indication of Bush’s regard for his advice and judgment.
Grassley says that Kavanaugh’s staff secretary documents are “the least relevant to Judge Kavanaugh’s legal thinking,” but that’s not the way Kavanaugh sees it. In 2010, explaining which of his experiences was most useful to him as a judge, he said his White House years “and especially my three years as staff secretary for President Bush” were “the most interesting and in many ways the most instructive.” And in 2006, when considering Kavanaugh’s nomination to the Court of Appeals, then-Judiciary Committee Chairman Orrin G. Hatch (R-Utah) said, “His background as staff secretary may prove to be particularly good judicial training.”
Many issues are potentially relevant to Kavanaugh’s confirmation process, particularly those in which he may well have been substantively involved, given advice or expressed views as staff secretary. Bush signed legislation limiting abortion in 2003, and his administration pushed to amend the Constitution to ban same-sex marriage. Bush made extraordinary use of signing statements — including for a law outlawing the torture of detainees — to claim a right to not execute any statute that he interpreted as unconstitutional. At his 2006 confirmation hearing for his Court of Appeals nomination, Kavanaugh denied knowledge about the infamous Justice Department torture memo drafted by then-Assistant Attorney General Jay S. Bybee. If Kavanaugh had a role in matters like these or many others, members of the Senate and the American people have a right to know.
Brett Kavanaugh has never been a “traffic cop.” He is seeking a lifetime appointment to the highest court in our land. 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.