‘Grave Concern’ Regarding Re-Nomination of Brett Kavanaugh

Media 04.25,06

Recipient: Senators Specter and Leahy

Dear Chairman Specter and Ranking Member Leahy:

On behalf of the undersigned organizations, we write to express our grave concern regarding the re-nomination of Brett Kavanaugh to the United States Court of Appeals for the D.C. Circuit. We urge the Committee to hold an additional hearing
regarding this highly controversial nominee.

Several key issues have come to light that were unknown at the time of Mr. Kavanaugh’s initial hearing. Mr. Kavanaugh worked 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. One such policy, recently divulged, permits the National Security Agency to conduct warrantless wiretaps of American citizens. Another such policy, now repudiated by the Justice Department, authorized the use of harsh interrogation techniques amounting to torture. A third policy denied military detainees other protections of the Geneva Conventions and allowed the military to: (a) hold detainees, including U.S. citizens, as “enemy combatants” without criminally charging them, allowing their detentions to be reviewed by neutral decision-makers, or
giving them access to attorneys (the Supreme Court has found this policy to be unconstitutional); and (b) employ war crimes military tribunals that do not provide the protections of the Uniform Military Code of Justice or basic norms of fair judicial process (the legality of these tribunals is presently before the Supreme Court). The Judiciary Committee has yet to explore whether Mr. Kavanaugh played a role in helping to formulate or defend any of these policies. It should do so now.

Mr. Kavanaugh also has not yet been forthcoming about several important aspects of his record. Significantly, numerous questions remain regarding whether the White House Counsel’s office, and Mr. Kavanaugh in particular, received copies of memos stolen from the computers of Democrat Senate Judiciary Committee staff by Republican staffers.1 Citizens for Responsibility filed a Freedom of Information Act request to find out whether the Department of Justice or the White House had received copies of the documents.2 When asked about it in written questions, Mr. Kavanaugh stated that “[b]efore there was a public revelation of this matter in late 2003, I was not aware nor did I suspect that information related to the Senate’s judicial confirmations process had been obtained from Democratic computer files. I was informed that I was not a target or subject of the investigation into this matter.”3 Mr. Kavanaugh, however, declined to answer no fewer than 31 written questions asking whether he had information that would have led a reasonable person to suspect that he was privy to confidential information from Democrats.

Mr. Kavanaugh also declined to answer numerous questions regarding his vetting of judicial nominees. As Associate White House Counsel, one of his primary responsibilities was serving on the administration’s Judicial Selection Committee. Mr. 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, these nominees will likely seek to undermine the authority of Congress and weaken federal civil and human rights protections. Senators asked Mr. Kavanaugh whether, before suggesting a nominee to the president, he was aware of the more troubling aspects of the nominee’s record. Senators asked, for instance, whether Mr. Kavanaugh knew about Charles Pickering’s unethical strong-arming of prosecutors to lower the sentence of a convicted crossburner; Priscilla Owen’s opinions ignoring statutory language on parental notification of a minor’s abortion, which Alberto Gonzales labeled “an unconscionable act of judicial activism;” or Janice Rogers Brown’s controversial statement that the Supreme Court’s decisions 65 years ago to uphold New Deal reforms related to minimum wage laws, unemployment compensation laws, federal guarantees for collective bargaining and the federal social security program constituted a “disaster of epic proportions.” Mr. Kavanaugh declined to answer each of the 20 questions on this subject, stating that “[i]t would not be appropriate in this context for me to comment on the records of other nominees and on internal Executive Branch communications.”

At the time Mr. Kavanaugh began in the White House Counsel’s Office, the White House announced that it was removing the non-partisan American Bar Association, the largest attorney organization in the nation, from its historic role of vetting potential judicial nominees. In a letter to the ABA, then-White House Counsel Alberto Gonzales justified the move by declaring that “granting any single group such a preferential quasi-official role in the nomination process would be unfair to the other groups that also have strong interests in judicial selection.” 4 Nevertheless, in response to written questions from Senators, Mr. Kavanaugh conceded that he and his colleagues sought pre-nomination advice from other organizations: “We met with members of a wide variety of groups that were interested in the judicial nomination and confirmation process. That is traditional and appropriate.” 5 Mr. Kavanaugh refused to divulge the names of the groups: “Beyond that, it would not be appropriate in this context for me to provide information regarding the Administration’s judicial nomination and confirmation strategy and meetings.” The Judiciary Committee should press Mr. Kavanaugh to discuss whose advice the Administration sought in choosing its judicial nominees in the context of its exclusion of the ABA.

The Judiciary Committee must also examine Mr. Kavanaugh to learn more about his record in the two years since his last hearing. At the time of the last hearing, Mr. Kavanaugh’s lack of legal experience was a serious 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. Mr. Kavanaugh has been White House Staff Secretary since the time of his last hearing. As a result, he has not gained any more courtroom experience. Has he nevertheless acquired additional qualifying legal experience? That remains an open question necessitating further examination. It is therefore incumbent on the Judiciary Committee to learn exactly what Mr. Kavanaugh has worked on as Staff Secretary so that it may gauge whether he is now better qualified for a lifetime seat on the D.C. Circuit than he was before.

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 this nomination be carefully scrutinized and that any new judges confirmed to it have a demonstrated commitment to enforcing the laws that protect our civil rights, human rights, public health and workplaces.

Given that Mr. Kavanaugh has yet to answer questions on a number of issues of concern, we strongly urge the Committee to hold an additional hearing on his nomination. If you have any questions or need further information, please contact Nancy Zirkin, Leadership Conference on Civil Rights (LCCR) Deputy Director at (202) 263-2880, or Valerie Frias, LCCR Counsel, at (202) 263-2852.


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