The Senate strikes back with the Flake flip

(THIS ARTICLE IS COURTESY OF THE ‘HILL’ NEWS)

 

The Senate strikes back with the Flake flip

Defending the Senate is not exactly the popular take these days. It’s easy to beat up on the upper house of Congress.

Many of those are fair indictments of the institution that George Washington once dubbed, “the cooling saucer of democracy.” But let’s give the ultimate institution of all the Beltway institutions it’s due. This week, notwithstanding the public spectacle of a hearing featuring Supreme Court hopeful Brett Kavanaugh and his accuser Dr. Christine Blasey Ford, the Senate worked.

Republicans wanted to shove Brett Kavanaugh through a rushed committee process with scant vetting of the credible allegations against Kavanaugh and force-feed him onto the Supreme Court. Another notch in the belt for President Trump and Senate Republicans going into the midterm elections.

And, to be clear, they still may do that. But the world’s greatest deliberative body did what it was supposed to do. What it was designed to do. It’s slowed the process down. And the process wasn’t slowed down by a powerful committee chair or a 2020 hopeful or any member of leadership. It was slowed down by Jeff Flake (R-Ariz.). A retiring, unpopular, and often unremarkable Senator who will leave Congress next January without much of a discernible legacy.

But the Senate makes that possible. Arcane rules and customs that are hard for even the most experienced Senate alumni to explain allow someone like Jeff Flake to gum up the works. The idea that Flake can pull together a small gang of moderates to flip the emergency brake at the last-minute is exactly what the body is set up to do. In the Senate, change is supposed to be slow and deliberate and difficult. That’s the whole point. If you don’t get that, you don’t get the Senate.

Also, the fact that it was Flake is notable. His relationship with someone like Chris Coons (D-Del.), another member from the other party who lives in relative anonymity, was also critical here. Not every member of the Senate should be running for or posturing for a higher office. The sequence of events amplify why the Jeff Flakes and Chris Coons’ are essential to the effectiveness of the Senate. Two Senators who can get in a room and make an imperfect, but nevertheless important deal.

Some people may think it just delays the inevitable for a week. That’s certainly possible. Most of the betting odds would probably still suggest that Senate Republicans are determined to put Brett Kavanaugh on the Supreme Court.

But as somebody who was raised by the Senate and worked for former Senate Majority Leader Harry Reid (D-Nev.) from 2009-2011 during the passage of the Affordable Care Act (ACA), I can speak with firsthand experience about the unpredictability of time inside those chambers. When pursuing a legislative priority, time can be your biggest enemy.

The biggest complication with the passage of the ACA was the extra time that was forced upon Senate Democratic leadership in 2009 and 2010. That extra time allowed public opinion to work its way against the bill, allowed the bill itself to be weakened and watered down and created unforeseen circumstances like the passing of Sen. Ted Kennedy (D-Mass.) and the unlikely special election of Scott Brown (R-Mass.) to fill his seat which significantly weakened the leverage of the Democratic majority. All resulting in a slow roll-out of the bill and ultimately igniting Republicans ability to recapturing control of Congress.

Let’s be clear. The “Profiles in Courage” being written up for Sen. Flake are a bit overdone. Especially because despite his outspokenness against President Trump, the now-senior senator from Arizona votes with the president more than 83 percent of the time according to FiveThirtyEight.com. And he still likely intends to support the Kavanaugh nomination after the one-week delay he negotiated for a FBI investigation into the Kavanaugh accusations to be completed.

But regardless, a reliable conservative stepped in the way to at least slow down a conservative coronation of a second Trump Supreme Court nominee. And yes, we should all give a shout out to the brave protesters, Ana Maria Archila and Maria Gallagher, who inspired the Flake Flip. They exemplify why no American should underestimate their role or take a backseat in our democracy.

But I think we would also be mistaken to withhold another shout out for the United States Senate. In an era where our institutions are being challenged and questioned daily, the Senate proved durable and helped to validate its unique role in our democracy.

Joel Payne is a former deputy press secretary for Senate Majority Leader Harry Reid (D-Nev.) and former director of African-American advertising for the Hillary for America 2016 campaign. He is currently a vice president with MWWPR.

GOP Aide Involved In Kavanaugh Nomination Resigns Because Of Sexual Harassment

(THIS ARTICLE IS COURTESY OF THE HILL NEWS)

 

Aide for GOP involved in Kavanaugh nomination resigns after past sexual harassment allegation surfaces

Aide for GOP involved in Kavanaugh nomination resigns after past sexual harassment allegation surfaces
© Anna Moneymaker

A spokesman for the Senate Judiciary Committee who was involved in Brett Kavanaugh’s nomination to the Supreme Court has abruptly resigned after allegations surfaced that he was dismissed from a previous job following a claim of sexual misconduct.

Garrett Ventry had been working as a communications official for the committee and focusing on messaging for the GOP amid Christine Blasey Ford’s allegation of sexual assault against Kavanaugh.

“Garrett was one of several temporary staff brought on to assist in the committee’s consideration of the Supreme Court nomination, a team that has done outstanding work,” a Judiciary Committee spokesperson told The Hill on Saturday.

“While he strongly denies allegations of wrongdoing, he decided to resign to avoid causing any distraction from the work of the committee,” they added.

Ventry denied any “allegations of misconduct” in a statement to NBC News, which first reported his dismissal on Saturday.

Ventry had previously worked for the conservative firm CRC Public Relations. A company spokesperson said in a statement to The Hill that Ventry had been on a leave of absence.

“We were not aware of these allegations, which he denies. As of this morning we have accepted his resignation,” a company spokesman said.

Politico had reported this week that CRC assisted lawyer and activist Ed Whelan in promoting an unfounded theory about the sexual assault allegation against Kavanaugh, which Whelan later removed from Twitter.

NBC News reported Saturday that Republicans were concerned Ventry could no longer lead messaging surrounding the Kavanaugh allegation because of the allegation made in his past.

The allegation was reportedly made by a female employee of the North Carolina GOP General Assembly. Ventry worked as a social media adviser in North Carolina House Majority Leader John Bell’s office last year.

Bell fired Ventry after a few months. The North Carolina leader told NBC News that Ventry had worked in his office and “moved on,” but declined to discuss specifics surrounding the dismissal.

Ventry’s departure comes as the GOP-led Senate Judiciary Committee negotiates with Ford’s lawyers over her appearing before the panel next week.

Grassley has given Ford until 2:30 p.m. on Saturday to decided whether to testify about the allegations.

– Jordain Carney contributed reporting

This post was last updated at 11:41 a.m.

Brett Kavanaugh Refers To Birth Control As ‘Abortion-Inducing Drugs’

(THIS ARTICLE IS COURTESY OF THE HUFFINGTON POST)

 

Brett Kavanaugh Refers To Birth Control As ‘Abortion-Inducing Drugs’ At Confirmation Hearing

Trump’s Supreme Court nominee defended his support of Priests for Life on the third day of his hearing.

On the third day of Supreme Court nominee Brett Kavanaugh’s confirmation hearing in front of the Senate Judiciary Committee, he referred to contraception as “abortion-inducing drugs.”

Judge Kavanaugh was responding to a question from Sen. Ted Cruz (R-Texas) on Thursday about his 2015 dissent in the Priests for Life v. HHS case. Kavanaugh had sided with the religious organization, which didn’t want to provide employees with insurance coverage for contraceptives.

Aaron Rupar

@atrupar

Kavanaugh seems to refer to birth control as “abortion-inducing drugs”

Priests for Life, a Catholic group that opposes abortion rights, filed a lawsuit against the Department of Health and Human Services in 2013 over the provision under the Affordable Care Act that required certain health care providers to cover birth control. The group argued that the provision was a violation of the Religious Freedom Restoration Act ― the same premise of the Hobby Lobby lawsuit in 2014.

A panel of the U.S. Court of Appeals for the D.C. Circuit ruled against Priests for Life in 2014. When the group tried and failed to get a full court hearing the next year, Kavanaugh dissented to lay out why he would have ruled for them.

This year, the group celebrated Kavanaugh’s nomination.

“We at Priests for Life have personal experience of Judge Kavanaugh’s approach to religious freedom, because he sided with us when we had to defend our religious freedom in the D.C. Circuit Court of Appeals,” Father Frank Pavone, the organization’s national director, said in July.

“At a time when these freedoms need more defense than ever,” he went on, “we urge the Senate to conduct a swift and fair confirmation process, focused on the excellent qualifications of Judge Kavanaugh, and not on the politics of personal destruction that the Democrat Left are such experts at carrying out.”

Following Kavanaugh’s remarks on Thursday, Dawn Laguens, executive vice president at the Planned Parenthood Action Fund, said it was “no wonder” activists have been so emphatic in protesting his nomination.

“Kavanaugh referred to birth control ― something more than 95 percent of women use in their lifetime ― as an ‘abortion-inducing drug,’ which is not just flat-out wrong, but is anti-woman, anti-science propaganda,” Laguens told HuffPost. “Women have every reason to believe their health and their lives are at stake.”

“Let me break it down for you, Brett,” she went on. “Birth control is basic health care. Birth control allows women to plan their futures, participate in the economy, and ― for some women with health issues like endometriosis ― allows them to get through the day.”

Bob Bland, co-president of the Women’s March, called Kavanaugh’s potential ascent to the Supreme Court “an emergency, all-hands-on-deck moment for women across America.”

“We know Brett Kavanaugh is against abortion, and now we know he thinks birth control is abortion,” Bland said Thursday.

Cruz, who brought up the Priests for Life case at Thursday’s hearing, used language similar to Kavanaugh’s when he referred to contraception as “abortifacients” at a 2013 summit. The religious right’s use of terms like “abortifacient” and “abortion-inducing drugs” has long been criticized by medical and pro-abortion rights communities.

Language has been amended to more precisely describe the timeline of the Priests for Life case.

Sen. Booker Releases Judge Kavanaugh Doc’s Republicans Trying To Hide From Public

(THIS ARTICLE IS COURTESY OF THE HUFFINGTON POST)

 

Cory Booker Releases Confidential Documents During Kavanaugh Hearing

Hawaii’s Sen. Mazie Hirono followed Booker’s threat to publish formerly confidential documents with her own release during the third day of hearings.
X

Sens. Cory Booker (D-N.J.) and Mazie Hirono (D-Hawaii) released formerly confidential emails from Supreme Court nominee Brett Kavanaugh about racial profiling and racial discrimination at the start of the third day of confirmation hearings on Thursday, around an hour after threatening to do so.

The dramatic move appeared to defy Republicans who had shielded the documents from public view, and it seemed to risk breaking Senate rules. Senate Judiciary Committee staffers for Republican and Democratic officials told The Washington Post, however, that the committee cleared the documents for public viewing before either senator posted them to their websites. A spokesman for Bill Burck, the Republican lawyer overseeing the approvals, also told the publication that the emails Booker released were cleared last night.

The precise timing is not yet clear.

A spokesman for Booker said in a statement that the senator and unnamed Democratic colleagues “were able to shame the committee” into releasing the documents. Yet a spokeswoman for Hirono told HuffPost the senator did not ask the committee to release the emails that she made public around 10:30 a.m. before she published them online. Hirono did not know they would be cleared for public release, the spokeswoman said.

Booker was the first to threaten to make the documents public, saying he would “knowingly violate” the rules and accept any punishment for his action, which he considered to be civil disobedience. Booker said the emails, taken from Kavanaugh’s time in the Bush White House, do not pose a threat to national security.

Sen. Cory Booker (D-N.J.) asks Supreme Court nominee Brett Kavanaugh a question during a confirmation hearing on Wednesday.

THE WASHINGTON POST VIA GETTY IMAGES
Sen. Cory Booker (D-N.J.) asks Supreme Court nominee Brett Kavanaugh a question during a confirmation hearing on Wednesday.

Sen. Mike Lee (R-Utah) said the emails Booker referenced had, in fact, just been deemed non-confidential, saying “the process worked.” Lee offered to work with Democrats in the committee to make other confidential documents public, too.

When Sen. John Cornyn (R-Texas) reminded Booker that he could lose his seat for breaking Senate rules, prior to the documents’ release, Booker responded: “Bring it.”

At the hearing, Sen. Richard Blumenthal (D-Conn.) argued that all the committee confidential documents should be publicly released, saying, “We are literally trying to get at the truth here.”

Booker’s documents, released Thursday afternoon, reveal that while Kavanaugh “generally” supports “race-neutral” security measures, the nominee also believed there was an “interim” question on whether to use racial profiling before neutral security measures are deployed. The emails between White House staffers were sent from mid-2001 and early 2002.

Messages released by Hirono reference unspecified government programs. Kavanaugh said in June 2002 that any such programs “targeting” native Hawaiians “as a group” are “subject to strict scrutiny” and “of questionable validity under the Constitution.” Hirono said in the hearing that her “colleagues from Alaska should be deeply troubled” by the nominee’s views because they would also apply to native Alaskans. Republican Sen. Lisa Murkowski from Alaska is seen as a possible swing vote in the confirmation process.

Booker’s colleagues Sens. Dick Durbin (D-Ill.) and Hirono also rallied around him, pledging their support in the event Booker faced “retribution,” as Durbin put it. Hirono said she would “defy anyone.”

“You want everything to be made public? All your emails? I don’t think you do,” Senate Judiciary Chairman Chuck Grassley (R-Iowa) responded at the hearing.

Sen. Dianne Feinstein (D-Calif.) jumped in to argue that the process of categorizing documents as committee confidential was far from transparent and perhaps unfair.

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“There is no process for ‘committee confidential,’” she said, adding that Democrats were not consulted in the decision to make certain documents private.

The release was in line with what progressive groups urged Democratic senators to do Wednesday: Go around Grassley and release the 141,000 pages of documents from Kavanaugh’s record that are not permitted for public release or public discussion. Members of the committee can read and discuss the documents among themselves, but they cannot question Kavanaugh on their contents in the hearings.

Read the documents that Booker released below. Hirono also uploaded documents, which are now on her website.

Republican Senator Don’t Care That Judge Kavanaugh Lied Under Oath At Least Twice

(THIS ARTICLE IS COURTESY OF THE HUFFINGTON POST)

 

Sen. Leahy: Withheld Emails Show Brett Kavanaugh May Have Perjured Himself

“There is simply no reason they can’t be made public,” Leahy said.

Sen. Patrick Leahy (D-Vt.) said Wednesday that emails being withheld by Senate Republicans show that Supreme Court nominee Brett Kavanaugh may have lied under oath during his prior confirmation hearings in 2004 and 2006.

The Democrat claimed that six emails from Kavanaugh’s time in the George W. Bush White House may contradict testimony Kavanaugh gave when being confirmed for his federal judgeships. But according to Leahy, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has labeled the emails as “committee confidential,” meaning they can’t be released to the public.

“There is simply no reason they can’t be made public,” Leahy said during confirmation hearings Wednesday.

Sen. Patrick Leahy

@SenatorLeahy

We have discovered evidence that Judge Kavanaugh misled the Senate during his 2004 and 2006 hearings. Truthfulness under oath is not an optional qualification for a Supreme Court nominee. Watch as I question him here: https://www.judiciary.senate.gov/meetings/nomination-of-the-honorable-brett-m-kavanaugh-to-be-an-associate-justice-of-the-supreme-court-of-the-united-states-day-2 

Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of…

United States Senate Committee on the Judiciary

judiciary.senate.gov

Leahy’s assertion shined a bright light on the fact that committee Republicans are rushing the judge’s nomination through without disclosing a huge number of documents related to his work in the White House counsel’s office under Bush.

Grassley only requested between 10 and 15 percent of the documents from Kavanaugh’s time in Bush administration, and only 7 percent ― 457,000 documents ― have been provided to the committee. Of the documents that have been turned over, Grassley is refusing to publicly release 189,000. The committee asked for no records from Kavanaugh’s time as White House staff secretary.

Sen. Patrick Leahy (D-Vt.) questions Supreme Court nominee Judge Brett Kavanaugh.

CHIP SOMODEVILLA VIA GETTY IMAGES
Sen. Patrick Leahy (D-Vt.) questions Supreme Court nominee Judge Brett Kavanaugh.

The six emails in question related to a scandal from 2002 and 2003 in which a Republican Judiciary Committee staffer named Manny Miranda stole emails from the committee’s Democrats that included strategy memos about how they would question Bush’s judicial nominees.

Leahy alleged that Kavanaugh, in his role preparing those judicial nominees for their confirmation hearings, knew he had received these stolen emails from Miranda detailing the Democrats’ strategy on the nomination of Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit. Kavanaugh claimed in both his 2004 and 2006 confirmation hearings that if he did receive those documents, he “never knew or suspected” that they were stolen.

Under tough questioning by Leahy on Wednesday, Kavanaugh stated that what he said in 2004 and 2006 was “100 percent accurate.” Leahy’s line of questioning first focused on three emails that are available to the public, then later alluded to the six emails that are not.

Leahy brought up an email sent on July 19, 2002, from Miranda to Kavanaugh and another Bush official that, according to the senator, asked “why the Leahy people were looking into financial ties between two special interest groups and Priscilla Owen.”

Kavanaugh proceeded to read the email and concluded, “I don’t really have a specific recollection of any of this, senator, but it would have not have been unusual [to say] … ‘The Leahy people are looking into this and the Hatch people are looking into that.’”

Then Leahy asked about a January 2003 email.

“Mr. Miranda forwarded you a letter from me and other Judiciary Democrats to then-Majority Leader Tom Daschle,” the senator said. “The letter was clearly a draft. It had typos and it wasn’t signed. Somebody eventually leaked its existence to Fox News.”

Judge Brett Kavanaugh reads from an email sent to him when working at the White House while answering questions from Sen. Pat

WIN MCNAMEE VIA GETTY IMAGES
Judge Brett Kavanaugh reads from an email sent to him when working at the White House while answering questions from Sen. Patrick Leahy.
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“Here’s the thing,” Leahy continued. “You had the full text of my email in your inbox before anything was said about it publicly. Did you find it at all unusual to receive a draft letter from Democratic senators to each other before any mention of it was made public?”

Kavanaugh pointed out that the only reply he made to this particular email was asking, “Who signed this?” According to Kavanaugh, this meant that he did not realize that the document was a draft and, therefore, remained oblivious that the document had been stolen.

Leahy then wanted to know if Miranda ever asked Kavanaugh to meet outside of the White House or the Capitol.

“I can’t rule that out,” Kavanaugh answered.

Leahy continued, “Did he ever hand you material separately from what would be emailed back and forth?”

“I don’t know the answer to that, senator,” Kavanaugh said before hemming and hawing about how sometimes the Democrats and Republicans on the committee worked together.

After his failure to remember whether he met with or received documents by hand from Miranda, Leahy asked Kavanaugh about another specific email. This was the first allusion to confidential emails the committee was not disclosing to the public.

“When you worked at the White House did anyone ever tell you they had a mole that provided them with secret info?” Leahy asked.

Kavanaugh said he didn’t “recall the reference to a mole.”

Leahy got more specific: “You never received an email from a Republican staff member with information claiming to come from spying?”

“I’m not going to rule anything out,” Kavanaugh said, echoing previous denials. “If I did, I wouldn’t have thought the literal meaning of that.”

“Wouldn’t that surprise you that you got an email saying that they got that from somebody spying?” Leahy pressed.

Kavanaugh, realizing that Leahy was talking about a document without revealing it, responded with his own question: “Well, is there such an email, senator?”

This led Leahy to turn to Grassley: “We’d have to ask the chairman what he has in the confidential material.”

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) shouts at Leahy as he questioned the lack of disclosure of Kavana

WIN MCNAMEE VIA GETTY IMAGES
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) shouts at Leahy as he questioned the lack of disclosure of Kavanaugh’s documents.

Grassley responded angrily that all of the documents that the committee has made public from Kavanaugh’s time in the White House counsel’s office are publicly available online. Leahy replied that the email he referenced is marked “committee confidential.” Grassley, angrily yelling, declared that 80 percent of the emails the committee got from the archives are available to the public.

Leahy replied to both Kavanaugh and Grassley: “I’m concerned because there is evidence that Mr. Miranda provided you with materials that were stolen from me. And that would contradict your prior testimony. It’s also clear from public emails … that you had reason to believe that materials were obtained inappropriately at the time.”

“Mr. Chairman, there are at least six documents that you consider committee confidential that are directly related to this, including three documents that are already public,” Leahy added. “These other six contain no personal information. No presidential-act-restricted material. There is simply no reason they won’t be made public.”

Grassley said that he would produce the documents Leahy referenced: “He’s going to get what he wants. And I think there’s five of them.”

Unresolved recusal issues require a pause in the Kavanaugh hearings

(THIS ARTICLE IS COURTESY OF THE BROOKINGS INSTITUTE)

 

REPORT

Unresolved recusal issues require a pause in the Kavanaugh hearings

Laurence H. TribeHon. Timothy K. Lewis, and Norman Eisen

This paper explains why the Constitution as originally designed by the framers requires the Supreme Court nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to be put on hold. It takes no view on his ultimate confirmation. But as one of the authors has elsewhere explained,[1] it offends the structure the framers created for a president who is facing mounting personal liability under our Constitution and laws to choose one of the judges in his own case.

Or more likely, multiple cases. Never before in the history of presidential nominations of Supreme Court justices have there been so many matters of the deepest personal impact to the president that may come before the Supreme Court.

Never before in the history of presidential nominations of Supreme Court justices have there been so many matters of the deepest personal impact to the president that may come before the Supreme Court.

In addition to legal and procedural questions surrounding possible impeachment proceedings, there are a staggering array of issues with which the nominee may well be presented owing to the historically unprecedented fact that his patron the president was a named subject and, but for hesitation to indict a sitting president, could well have been a target,[2] in a criminal investigation at the very time that he handpicked the judge—reportedly after White House consideration of the judge’s views on some of these very issues. As detailed below, those issues include:

  • Whether a president can use the pardon power to shield himself from criminal liability;
  • Whether a president can be charged with obstructing justice;
  • Whether a president can defy a subpoena for testimony;
  • Whether a president can be criminally indicted;
  • Whether a president can unilaterally fire a special counsel without cause; and
  • Related civil matters involving a president’s personal interests.

The need for a pause is particularly strong here, where the judge, as we also explain below, holds views that, while formally denying that presidents are above the law, amount to affirming that proposition as a practical matter—and where the deliberate confirmation process needed at a minimum to examine those views has been rushed and, in our view, broken. All of the authors of this paper have either been before the Senate for confirmation, worked on Supreme Court or other confirmations, or both. We have never seen anything like this hurried and defective process for such an important nomination.

In this paper, we advance an additional constitutional ground that strongly counsels that there be a hiatus. Although the Constitution provides no process for making a binding and enforceable determination that a particular Supreme Court Justice take no part in the consideration and decision of a specific case or set of cases, it does not follow that the Constitution, read with fidelity to its structure and its purposes and in light of the precedents construing its implications, has nothing to say on the matter to a justice who was worthy of confirmation in the first instance. On the contrary, we believe the Constitution instructs that a judge nominated to the Court in the situation that currently confronts Judge Kavanaugh recuse himself from the full swath of cases presenting the issues of personal presidential liability this paper identifies—and that precedent demands he do so now, as other nominees have done under far less compelling circumstances. The confirmation hearings should therefore be halted so these issues can be explored and proper recusals agreed to after due deliberation, including full production of the judge’s documents so his views can be thoroughly probed.

Our position is based upon first principles of our system of justice under the law, reinforced by a trio of Supreme Court precedents in the past decade establishing the parameters of constitutionally mandatory recusal—parameters that are triggered by the unique circumstances of Judge Kavanaugh’s situation. Those cases are Caperton v. A.T. Massey Coal Co.Williams v. Pennsylvania, and Williams-Yulee v. Florida Bar, which we describe in detail below. They have reflected two key constitutional principles that should dictate the outcome of recusal questions: judges must step aside when there is either a “serious risk of actual bias” or where there is an independent and compelling government-wide interest in protecting against the appearance of bias regardless of whether that appearance compromises the particular rights of any litigant. That includes the paramount interest at stake in this case of protecting the public faith in the judicial system as a cornerstone of the legal process as a whole and as a guardian of the rule of law.

While these precedents and the principles they embody have not yet been applied to require a Supreme Court justice to recuse, they plot a trajectory that points unmistakably in that direction. As we explain below, both principles clearly compel recusal here. Bias and the appearance of bias are powerfully implicated by the unique confluence of factors in this case.

If, moreover, we are to believe press reports[3] that Judge Kavanaugh will refuse to commit now to recuse, he will be repudiating the guidance of the Constitution before he ever sits on the Court, inasmuch as recusal is mandatory if our understanding of the Constitution is correct. The seriousness of the matter is highlighted by the fact that other nominees have, as we explain below, committed to the Senate to recuse on substantially lesser grounds. This is after all no routine nomination but a lifetime appointment as one of nine individuals who determine the course of our justice system and the shape of the laws under which all of us will live, and as one who may, among other things, determine the fate of the president who nominated him and potentially of the presidency itself.

If the foregoing press reports are accurate, they further warrant our view that the Kavanaugh nomination should be delayed until the relevant legal issues overhanging the sitting president are resolved—and that the hearings set to begin on September 4, 2018, should not be taking place at this time. That pause must include further production of documents relating to the nominee’s White House service, a process that to date contrasts starkly with the timely and transparent production of documents regarding Justice Elena Kagan’s prior White House service when the Senate was considering her nomination to the Court.[4] To date, only a small fraction of the requested Kavanaugh materials have so far been made available on the hasty schedule gratuitously set by the Senate majority. Unlike with Kagan’s nomination, where no White House documents were withheld on privilege grounds,[5]101,921 of the Kavanaugh documents were abruptly withheld, without adequate explanation of the privilege assertions made in conclusory form, late on the last business eve before the hearings were to begin.[6] The Senate must have adequate time to review those documents as well as the documents that have already been produced, including 42,000 pages produced on the eve of the first day of the hearing.[7]

Download the paper.

Authors

The Hon. Timothy K. Lewis

Hon. Timothy K. Lewis

Counsel – Schnader Harrison Segal & Lewis LLP

U.S. Court of Appeals for the Third Circuit, 1992-99

FOOTNOTES

  1. 1Laurence H. Tribe, The Founding Fathers Wouldn’t Want Kavanaugh’s Confirmation to ContinueWashington Post, Aug. 24, 2018, available athttps://www.washingtonpost.com/opinions/the-founding-fathers-wouldnt-want-kavanaughs-confirmation-to-continue/2018/08/24/5184ece6-a70b-11e8-8fac-12e98c13528d_story.html.
  2. 2Barry H. Berke, Noah Bookbinder, and Norman Eisen, Presidential Obstruction of Justice: The Case of Donald J. Trump, 2nd Ed., Brookings, Aug. 22, 2018, available at https://www.brookings.edu/research/presidential-obstruction-of-justice-the-case-of-donald-j-trump-2nd-edition/.
  3. 3See Alexander Mallin and Katherine Faulders, Kavanaugh Won’t Commit to Recusal from Trump, Mueller Related MattersABC News, Aug. 31, 2018, available at https://abcnews.go.com/Politics/kavanaugh-commit-recusal-trump-mueller-related-matters/story?id=57534501.
  4. 4See Senator Patrick Leahy, Letter to Senator Jeff Sessions, Jun. 23, 2010, available at https://www.leahy.senate.gov/press/leahy-responds-to-republican-requests-for-more-kagan-documents-from-archives (noting that vast majority of requested paper records had been produced to the Committee two weeks before the start of confirmation hearings and the email records were produced one week prior)SCOTUSblog Briefing Paper, Elena Kagan – Privilege and Release of Kagan DocumentsSCOTUSBlog, June 30, 2010, available at: http://www.scotusblog.com/wp-content/uploads/2010/06/Kagan-issues_privilege-June-301.pdf.
  5. 5See Senator Leahy, Jun. 23, 2010 (noting that the Obama Administration had not invoked executive privilege and the Clinton Library had withheld fewer than 2,000 documents on “personal privacy” grounds).
  6. 6Ariane de Vogue, Trump Admin Withholds 100,000-Plus of Kavanaugh DocumentsCNN, Sept. 1, 2018, available at https://www.cnn.com/2018/09/01/politics/trump-kavanaugh-bush-supreme-court-documents/index.html.
  7. 7Fred Barbash and Seung Min Kim, Hours before Kavanaugh nomination hearings, Bush lawyer releases 42,000 pages of documents to Judiciary CommitteeWashington Post, Sept. 3, 2018, available at https://www.washingtonpost.com/news/morning-mix/wp/2018/09/03/hours-before-kavanaugh-nomination-hearings-bush-lawyer-releases-42000-pages-of-documents-to-judiciary-committee/.