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Kavanaugh papers offer new clues into his views on executive power

Judge Brett M. Kavanaugh, President Trump’s nominee for the Supreme Court. (Manuel Balce Ceneta/AP)

Judge Brett M. Kavanaugh’s views on race, executive privilege and whether the Supreme Court ruled correctly in requiring President Richard Nixon to turn over the Watergate tapes are all contained in a trove of material given to the Senate on Saturday.

In a questionnaire released by the Senate Judiciary Committee, President Trump’s nominee to replace retiring Justice Anthony M. Kennedy even discloses that he gave up voting when he joined the U.S. Court of Appeals for the D.C. Circuit more than a decade ago.

Senators and their staffers now begin sifting through the 120-page questionnaire and thousands of pages of supporting documents.

One interview sure to draw attention is Kavanaugh’s questioning in 1999 of whether the Supreme Court’s unanimous 1974 decision that led to Nixon’s resignation was correctly decided.

At a roundtable discussion of lawyers on attorney-client privilege, Kavanaugh said that perhaps the high court’s decision “was wrongly decided — heresy though it is to say so.”

The decision “took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official,” Kavanaugh said.

“That was a huge step with implications to this day that most people do not appreciate sufficiently . . . Maybe the tension of the time led to an erroneous decision.” The discussion was first reported by the Associated Press.

The issue seems pertinent now in special counsel Robert S. Mueller III’s investigation of Russian interference in U.S. elections and whether he might seek testimony from the president.

“To believe that the court got it wrong is to believe either that executive privilege is absolute or that a quasi-independent prosecutor lacks the authority to enforce a subpoena against a president,” said Stephen Vladeck, a law professor at the University of Texas. “Either of those conclusions would be a radical departure from where the law currently is and, arguably, where it should be.”

The White House did not dispute Kavanaugh’s 1999 remarks or offer an explanation of them. But it noted two occasions when he was complimentary of United States v. Nixon. In a 2016 speech, for example, Kavanaugh said the decision was one of the “greatest moments in American judicial history . . . when judges stood up to the other branches, were not cowed, and enforced the law.”

Also in the documents is a timeline for the process by which Trump chose Kavanaugh. He said he was contacted within hours of Kennedy’s retirement announcement last month, signaling that he was a favorite.

Kavanaugh interviewed with White House counsel Donald McGahn two days later, then with Trump and later Vice President Pence.

On the morning before Trump had said he would make his decision, he called Kavanaugh again. And that evening.

“ I met with President Trump and Mrs. Trump at the White House. During that meeting, the President offered me the nomination, and I accepted.”

Kavanaugh’s recounting is part of more than 6,000 pages of documents he turned over to the senators who will decide on his confirmation. Many of the papers relate to the more than 2,700 cases he has encountered as a member of the appellate court.

But he also details life as a member of Washington’s elite: Joining two of its poshest country clubs, his volunteer work for Catholic Charities distributing meals to the homeless, and views on all manner of legal and public policy, including voting.

On the latter subject, he says he doesn’t.

Although he is a registered Republican in Maryland, Kavanaugh noted in a speech at Catholic University published in the school’s 2016 law review that “some judges do not even vote, on the theory that to vote is a solemn expression (at least to yourself) of your political or policy affiliation and beliefs.”

He noted that Supreme Court Justice John Marshall Harlan II was one. “I am no Justice Harlan, I will be the first to emphasize, but after a short time as a judge, I ultimately chose to follow his lead.”

Montgomery County voting records indicate that Kavanaugh last voted in the 2006 general election, about the time he joined his court.

His written opinions in more than 300 cases will give the senators plenty to question, and so will an array of speeches and law review articles. Among them:

●Judicial independence. In a 2015 speech, he said that his work in the White House of George W. Bush gave him a “BS detector.” That helps, he said, “when judges need to show some backbone and fortitude, in those cases when the independent judiciary must stand up to the president and not be intimidated by the mystique of the presidency.”

●Executive power. In a speech reprinted in 2014 in the Notre Dame Law Review, Kavanaugh said: “Everyone agrees that the pardon power gives the president absolute, unfettered, unchecked power to pardon every violator of every federal law. Obviously, there are political checks against doing that, or against using the pardon power in an arbitrary manner. But in terms of raw constitutional power, that is the power the president has.”

●The impeachment of President Bill Clinton. Kavanaugh was a trusted lieutenant of independent counsel Kenneth W. Starr, but he distances himself from the publication of some of the salacious details of Clinton’s affair with Monica Lewinsky.

“This is a matter of some continuing controversy,” Kavanaugh writes in the questionnaire. “As I have stated publicly before, I regret that the House of Representatives did not handle the report in a way that would have kept sensitive details in the report from public disclosure . . . or, if not, that the report did not further segregate certain sensitive details.”

●Race. Kavanaugh wrote an amicus brief in 1999 in which he argued that it was unconstitutional to restrict people who are not Native Hawaiians from voting for trustees of the Office of Hawaiian Affairs. The Supreme Court agreed that race could not be used as a voting requirement.

Kavanaugh, in private practice at the time, was quoted in a Christian Science Monitor article saying, “This case is one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of government.”

Asked to name his 10 most important decisions, Kavanaugh selected nine “because the position expressed in my opinion (either for the court or in a separate writing) was later adopted by the Supreme Court.” He said only one opinion was reversed by the justices.

The 10th case on his list was one that did not go to the high court, but Kavanaugh said he included “because of what it says about anti-discrimination law and American history.”

Placide Ayissi-Etoh was fired by Fannie Mae after he filed a discrimination complaint, alleging that a company executive had, among other things, used a racial slur in a comment to him. A lower court ruled for Fannie Mae.

But Kavanaugh’s appeals court panel reversed, and Kavanaugh wrote separately to say that “calling someone the n-word, even once, creates a hostile work environment. My opinion explained: ‘No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.’ ”

Kavanaugh spent a relatively short time in private practice. At the law firm Kirkland and Ellis, he said he represented clients such as Verizon, AOL, General Motors and Morgan Stanley.

But on pro bono matters, he showed different interests. He represented the American relatives of Elián González, the young Cuban boy whose fight to stay in this country became a national controversy. He wrote an amicus brief supporting a Christian group’s successful Supreme Court battle to use public school facilities.

Kavanaugh knows firsthand the struggles of a confirmation process — his journey from nomination to confirmation to the appeals court took three years. He has regularly denounced the process and said he thinks a nominee deserves a vote within 180 days.

Emma Brown, Michael Kranish, Robert O’Harrow, Beth Reinhard, Hamza Shaban and Felicia Sonmez contributed to this report.