Opposition to Kavanaugh’s Confirmation to the DC Circuit

Categories: Advocacy Letter

Recipient: U.S. Senate

Dear Senator:

On behalf of the Leadership Conference on Civil Rights, the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our vehement opposition to the confirmation of Brett Kavanaugh to the United States Court of Appeals for the D.C. Circuit.

The re-nomination of Brett Kavanaugh to the D.C. Circuit is part of the administration’s effort to reward adherence to far right partisan ideology in its appointments to the federal bench. It is that ideology, and not legal excellence, that has driven this appointment. Kavanaugh has spent most of his relatively short legal career in highly partisan positions at the White House and Kenneth Starr’s Office of Independent Counsel. Such a partisan advocate should not be confirmed for a lifetime position on the critically important D.C. Circuit.

Mr. Kavanaugh’s lack of legal experience is a grave concern. Of the ten most significant “litigated” matters he reported to the Senate Judiciary Committee, two consisted only of filing friend-of-the-court briefs and several others did not involve court appearances. Mr. Kavanaugh has less legal experience than virtually any Republican or Democratic D.C. Circuit judicial nominee in more than 30 years. Further, Mr. Kavanaugh has been White House Staff Secretary since the time of his first hearing. As a result, he has not gained any more courtroom experience.

Mr. Kavanaugh has failed to answer questions on several critical issues relative to what role he played in the White House Counsel’s Office when that office helped devise several controversial policies authorizing the president to ignore U.S. law and violate civil liberties and human rights including: (1) the recently disclosed policy permitting the National Security Agency to conduct warrantless wiretaps of American citizens; (2) the
use of harsh interrogation techniques amounting to torture; (3) a policy that denied military detainees other protections of the Geneva Conventions and allowed the military to hold detainees, including U.S. citizens, as “enemy combatants” without criminally
charging them, without allowing their detentions to be reviewed by neutral decisionmakers, and without giving them access to attorneys; (4) employing war crimes military tribunals that do not provide the protections of the Uniform Military Code of Justice or basic norms of fair judicial process; and (5) his role in reviewing presidential signing statements that suggest the President need not follow the law Congress passed, including laws such as the recently passed prohibition on torture.

In his position with the Bush administration’s White House Counsel’s office, one of Kavanaugh’s primary responsibilities was serving on the administration’s Judicial Selection Committee. Kavanaugh was a key player in the selection of most of President
Bush’s more controversial nominees, including Priscilla Owen, Dennis Shedd, Janice Rogers Brown, Miguel Estrada, and William Pryor. As reflected in their records, such nominees would seek to undermine the authority of Congress and weaken federal civil and human rights protections for persons of color, individuals with disabilities, women, workers, gays and lesbians, older Americans, and children. Kavanaugh’s aggressive support for such nominees raises substantial and weighty questions about his own legal philosophy and his commitment to interpret and not to make law from the bench.

In his work for President Bush, Kavanaugh has also sought vigorously to expand presidential secrecy and promote what critics have called an “imperial presidency.” This has included efforts to keep secret the records of Vice President Cheney’s energy task force meetings and to eviscerate the Presidential Records Act concerning the records of former presidents. This is particularly problematic in light of the crucial role that the D.C. Circuit plays with respect to such questions.

Mr. Kavanaugh’s nomination has special significance for the civil rights, environmental, and labor communities because of the importance of the court to which he has been nominated. The U.S. Court of Appeals for the District of Columbia Circuit plays a critical role in our federal judicial system and is widely regarded as the second most important court in the United States, after the U.S. Supreme Court. Based on the significance of this court, it is extremely important that any new judge confirmed to it have a demonstrated commitment to enforcing the laws that protect our civil rights, human rights, public health and workplaces. Mr. Kavanaugh has neither demonstrated nor articulated a commitment to these issues.

In our review of Kavanaugh’s record, we see only the strident workings of a political operative, not the legal experience and judgment necessary for a seat on the United States Court of Appeals for the D.C. Circuit. Given Mr. Kavanaugh’s failure to answer questions on a number of issues of concern, we have no choice but to oppose Mr. Kavanaugh’s confirmation. If you have any questions or need further information, please contact Nancy Zirkin, LCCR Deputy Director/Director of Public Policy or Valerie Frias, LCCR Counsel, at (202) 466-3311.


Sincerely,

Wade Henderson
Executive Director

Nancy Zirkin
Deputy Director/Director of Public Policy



i Dana Milbank, Whitewater Lawyer Turns Proponent of Presidential Power, The Washington Post, Oct. 15, 2002