Heading into Second Hearing, Burden Is on Kavanaugh

In advance of the second Senate Judiciary Committee hearing on the nomination of Brett Kavanaugh to the DC Circuit Court of Appeals, People For the American Way President Ralph G. Neas had the following statement:

“Brett Kavanaugh will go into tomorrow’s hearing with deficits in several key areas. He has no judicial experience, he has a long track record as a partisan and ideological legal hit man, and he has not yet disclosed the information or provided the responses to questions that senators need to properly evaluate his nomination. The burden will be on him tomorrow to address these gaping deficits. Republican committee members will also have a burden to meet. They can demonstrate tomorrow that they are serious about the ‘advise and consent’ responsibilities of the Senate by conducting due diligence on Kavanaugh, or they can just go through the motions.”

“Senators should equally scrutinize judicial nominees and hold them to the same high standards that Americans expect for lifetime appointees to the federal bench. In the case of Harriet Miers, another nominee with close ties to the president, Republican committee members – prior to her withdrawal – demanded information and documents concerning her work in the White House Counsel’s office. They rebutted claims of executive privilege; in the words of Senator Graham, ‘where’s there’s a close call the tie goes towards disclosure.’ We will find out tomorrow whether Graham and the others really meant what they said.

“There are significant gaps in Kavanaugh’s record that must be filled in. Since his first hearing many controversial administration policies have been disclosed and traced back to the White House Counsel’s office during his tenure. These include the NSA wiretapping program, the authorization – later repudiated by the Justice Department – of interrogation tactics verging on torture, and the administration’s policies on ‘enemy combatants.’ Until senators learn what role, if any, Kavanaugh played in developing these and other potentially illegal policies, the committee cannot reasonably evaluate, let alone advance, his nomination.

“If Kavanaugh’s record of answering questions at his first hearing is any indication of how he will act tomorrow, then his nomination could be in trouble. At that hearing, and in response to other questions posed by senators, he provided incomplete and evasive answers. For instance, he improperly hid behind executive privilege to avoid answering questions about his role as White House Counsel Alberto Gonzales’ main deputy on judicial nominations.

“Kavanaugh is known to have helped select and support many of the president’s most extreme nominees, including Owen, Estrada, Pryor, and Kuhl, yet he refused to discuss his views of their records or his involvement in developing the strategy to advance their nominations, which often included refusal to disclose pertinent information about their records, including ethical issues. Among other things, he has failed to be fully forthcoming about his views of individual cases in which he was involved; whether he received information from memos stolen from computers of Democratic Senate Judiciary Committee staff; and his role in pushing to deny compensation to victims of 9-11 while immunizing the airlines from liability. Again, without knowing the answers to these questions senators cannot reasonably advance his nomination. Senate Republicans, as well as Democrats, should demand these answers and not just go through the motions.

“But the burden on Kavanaugh tomorrow extends far beyond his disclosure deficit. The American Bar Association lowered his rating subsequent to his first hearing, and his role as the president’s staff secretary has done nothing to address his utter lack of judicial experience. Furthermore, his record as an ultraconservative political operative suggests that should he be confirmed to the DC Circuit – the nation’s second highest court and the venue for judicial review of many federal agency actions and policies – he could well become a lap dog, not a watchdog, to the executive branch during GOP administrations and an attack dog during Democratic ones. But the federal judiciary should be fair and independent and not wielded as a political weapon. Finally, his record suggests adherence to a radical judicial philosophy that seeks to roll back jurisprudence to the pre-New Deal era and would endanger many of our cherished rights and liberties.

“Kavanaugh will need to demonstrate tomorrow that he is within the mainstream of jurisprudence and can overcome his lack of experience and record of partisanship. If senators take their ‘advise and consent’ responsibility seriously, Kavanaugh will have his work cut out for him.”