As Sen. Charles E. Schumer pondered the judicial nomination of Brett M. Kavanaugh, the New York Democrat could barely contain his anger. He viewed the choice as “among the most political in history” and could not think of another nominee “more designed to divide us.”
Schumer was not talking about President Trump’s nomination of Kavanaugh to be a Supreme Court justice. It was 2004, and Schumer helped lead the Democrats’ questioning of Kavanaugh to move from the George W. Bush White House to a federal circuit judgeship. Schumer and his Democratic colleagues cast him as an extreme conservative and were so effective that they blocked Kavanaugh’s nomination for three years.
Now, however, as Kavanaugh prepares for his Tuesday confirmation hearing, Democrats are still searching for a strategy that could stop his ascension to the highest court. Schumer said in an interview that his concerns from 2004 “are still the case” and have only grown as a result of Kavanaugh’s judicial rulings for 12 years.
“He has a very nice smile, but an inch below the surface, he is a hard-right warrior,” Schumer said in an interview.
Then, as now, Kavanaugh symbolizes to Democrats how partisanship has overwhelmed the process for judicial nominations. Trump’s selection of him to fill the seat vacated by Justice Anthony M. Kennedy, for whom Kavanaugh once served as a clerk, underscores a long-standing Republican goal to infuse the federal courts with judges who will strictly interpret the Constitution and seal the high court’s conservative direction on issues such as abortion and regulations.
This time, the Democrats’ stalling tactics of 2004 are unlikely to work. Schumer and his Democratic colleagues face a rules change enacted last year by Republicans under which it takes only 51 votes to stop a filibuster on a Supreme Court justice rather than the 60 votes required in the past. Republicans controlled 51 seats before the recent death of Sen. John McCain, whose replacement is expected to be named soon by Arizona’s Republican governor.
And Republicans have used their own strategies to control the flow of documents that might inform harsher questioning. T he White House has said that records from Kavanaugh’s time as Bush’s staff secretary do not need to be released, and thousands of documents from his time in the counsel’s office are being withheld by Republicans on the Senate Judiciary Committee as “committee confidential,” meaning all senators may view them but cannot publicly distribute them.
The committee received 415,000 pages, of which 147,000 are being withheld. In addition, the White House said last week it will not release 101,921 pages of Kavanaugh-related records to the committee, citing the sensitivity of the communications. Democrats said the process is being manipulated by Republicans to withhold vital information and have urged that hearings be postponed until all relevant documents have been released.
When Bush in 2003 first nominated Kavanaugh to be a U.S. appellate judge, Kavanaugh’s work on partisan missions put him at odds with Democrats. He worked for independent counsel Kenneth Starr and laid out the grounds in 1998 for impeaching President Bill Clinton; he acted on behalf of Bush in the Florida recount in the 2000 presidential race; he promoted conservative judicial nominees as Bush’s associate counsel; and as Bush’s staff secretary, he helped shape presidential policies.
“As I look through all of the different issues that you have been involved in as an attorney in public service and the private sector, it seems that you are the Zelig or Forrest Gump of Republican politics,” Sen. Richard J. Durbin (D-Ill.), said at the 2004 hearing, which has received relatively little notice during the current examination of Kavanaugh’s record. “You show up at every scene of the crime.”
Durbin still serves on the Judiciary Committee, and for the third time will be asked to consider whether Kavanaugh should move forward for full Senate consideration. Durbin worked in 2004 with Schumer to block Kavanaugh’s federal circuit court bid, and voted against Kavanaugh in 2006, when his nomination was approved.
Like Schumer, Durbin said in an interview that his concerns about Kavanaugh have only increased.
“He has Republican blood coursing through his veins,” Durbin said. “Clearly he has more judicial experience than when I first ran into him,” he said, but those 12 years have yielded mostly conservative decisions. “His pattern of voting is very clear,” Durbin said.
Kavanaugh, at both of his prior hearings, insisted he was not an ideologue. Asked in 2004 by Durbin for an example of when he disagreed with the Republican Party, he responded that while he was a Republican, “my background has not been in party politics. I have been a lawyer for clients, working for judges.”
At another point, Kavanaugh was interrogated by Sen. Dianne Feinstein, a California Democrat who still serves on the Judiciary Committee and remains a harsh critic of the judge. Feinstein asserted her belief that Bush used a litmus test to only nominate judges who opposed abortion rights, but Kavanaugh testified that he and his colleagues at the Bush White House Counsel’s Office had never asked about a candidate’s views on abortion.
Feinstein pounced. “Could you identify five pro-choice judges that the White House sent to the Hill?” she asked.
“I don’t know whether the nominees are pro-choice or pro-life,” Kavanaugh replied.
“Four?” Feinstein countered. “Three? Two? One?”
“Senator, I’m sure there are many,” Kavanaugh responded, without giving an example.
Feinstein said in a statement to The Washington Post that Kavanaugh’s record shows he “helped select judicial nominees who were strongly opposed to women’s reproductive rights.” She wants more Bush-era records to be disclosed to reveal more about Kavanaugh’s role.
“We should take the time to understand this nominee’s full record and whether he misled the Senate under oath,” she said.
In response, the White House provided a statement to The Post from Kavanaugh’s boss in the Bush administration, then-Counsel Alberto Gonzales, who said, “We did not ask judicial nominees their views on particular matters like abortion or other policy issues. We asked about the nominee’s method of deciding cases generally, not how they would rule on a specific case or issue. To do otherwise would be entirely inappropriate. Judge Kavanaugh’s testimony reflected our consistent practice.”
Some of the Democratic arguments against Kavanaugh are no longer valid. At the time of his 2004 hearing, Democrats focused on his youth and lack of courtroom experience. He was 39 years old and had not served on any court, although he had clerked for three judges, including Justice Kennedy, whom he is now nominated to succeed. Today, he is 53 years old — considered an ideal age for someone who hopes to serve for decades on the Supreme Court — and has issued dozens of rulings for the U.S. Court of Appeals for the D.C. Circuit.
Legal scholars who have reviewed Kavanaugh’s roughly 300 opinions rank him in the middle of the spectrum of other Republican-nominated judges. Adam Feldman, the founder of Empirical SCOTUS (the initialism for Supreme Court of the United States), has said that Kavanaugh’s rulings put him “far to the right, but not at the edge of the spectrum.”
Kavanaugh’s email correspondence from his years as Bush’s associate counsel shows that he was keenly aware of the politics involved in judicial nominations. One of Kavanaugh’s roles was to find and vet candidates for Bush’s judicial nominations. A number of Kavanaugh’s favorite candidates were attacked by Democrats as extreme, and several failed to gain Senate approval. Schumer said to Kavanaugh at the 2004 hearing that “of course ideology played a role” in such selections.
In one example, Kavanaugh referenced Judge Priscilla Owen of Texas, then a Bush nominee for the U.S. Court of Appeals for the 5th Circuit. Democrats labeled her as extreme, and her nomination did not come to a floor vote.
Kavanaugh took note of the bitter outcome. In an email sent after the November 2002 elections, he forwarded a story to White House colleagues that said Owen had been defeated for partisan reasons. The story called her “an unsung winner” of the midterms because Bush had cited Democratic opposition to her as a reason to vote for Republicans. The GOP captured the Senate in the midterms. The story Kavanaugh passed along noted that the results put Feinstein and Schumer “in the minority, where their power to block nominees will be vastly reduced.”
As the story predicted, Owen’s nomination came up again, and she was confirmed in 2005.
Kavanaugh’s own nomination was stalled until 2006, when he once again faced skeptical Democrats on the Judiciary Committee, including Schumer, Feinstein and Durbin. They once again criticized him for his inexperience and his work on Republican matters, but the main line of questioning was whether he had knowledge of Bush’s torture policy and treatment of detainees. Kavanaugh, who served as associate counsel from 2001 to 2003 and then as staff secretary until 2006 testified that he was “not involved” in those policies. That helped him win confirmation in a Republican-controlled Senate by a vote of 57 to 36 on May 26, 2006.
A year later, a story in The Post left some Democrats feeling misled. It reported that Kavanaugh in 2002 had been involved in at least one contentious discussion in the White House Counsel’s Office during which he was asked to interpret how Justice Kennedy might view the detainee policy if it came before the court. That angered some Democrats, who believed it contradicted his assertion that he was not aware of Bush’s policy.
Durbin, who said that Kavanaugh’s testimony about the matter was “not accurate,” said that he had asked Kavanaugh after the 2006 hearing to explain in writing how his testimony could be reconciled with the revelation of the 2002 discussion.
Durbin, who said he never received a response, plans to revisit the matter at Kavanaugh’s hearing.