Dear Commons Community,
This week we saw hour after hour, day after day the confirmation hearings of Brett Kavanaugh for a seat on the U.S. Supreme Court. It was pure political theater from both sides of the aisle. A New York Times editorial this morning summarizes the nomination hearings. The bottom line is that Kavanaugh is fast and loose with the truth especially regarding critical judicial issues such as Roe v. Wade, affirmative action, and an expansive view of presidential power and impunity. Below is the full editorial.
Confirmed: Brett Kavanaugh Can’t Be Trusted
A perfect nominee for a president with no clear relation to the truth.
By The Editorial Board
The editorial board represents the opinions of the board, its editor and the publisher. It is separate from the newsroom and the Op-Ed section.
Sept. 7, 2018
In a more virtuous world, Judge Brett Kavanaugh would be deeply embarrassed by the manner in which he has arrived at the doorstep of a lifetime appointment to the Supreme Court.
He was nominated by a president who undermines daily the nation’s democratic order and mocks the constitutional values that Judge Kavanaugh purports to hold dear.
Now he’s being rammed through his confirmation process with an unprecedented degree of secrecy and partisan maneuvering by Republican senators who, despite their overflowing praise for his legal acumen and sterling credentials, appear terrified for the American people to find out much of anything about him beyond his penchant for coaching girls’ basketball.
Perhaps most concerning, Judge Kavanaugh seems to have trouble remembering certain important facts about his years of service to Republican administrations. More than once this week, he testified in a way that appeared to directly contradict evidence in the record.
For example, he testified that Roe v. Wade is “settled as a precedent of the Supreme Court.” But he said essentially the opposite in a 2003 email leaked to The Times. “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so,” he wrote then.
Judge Kavanaugh’s backers in the Senate brushed this off by pointing out that his 2003 statement was factually correct. They’re right, which means that his testimony this week was both disingenuous and meaningless.
As we’ve learned with each new trickle of previously withheld documents, Judge Kavanaugh didn’t start misleading senators just this week.
At his 2004 confirmation hearing before the Judiciary Committee, he denied any involvement in the vetting of a controversial judicial nominee while serving as one of President George W. Bush’s White House lawyers. The nominee, William Pryor Jr., had among other things called Roe v. Wade “the worst abomination of constitutional law in our history.” In fact, Mr. Kavanaugh was more than a little involved, as emails from that period — which Senate Republicans had withheld until early Thursday morning — made clear.
In that 2004 hearing and again in 2006, when he was being considered for a seat on the federal appeals court in Washington, D.C., Mr. Kavanaugh told Congress, under oath, that he knew nothing about the extensive theft of secret strategy documents from Democratic senators’ computers by Republican staffers. As it turns out, he did in fact receive those documents or summaries of them. But he now claims that he had no reason to believe that they had been stolen, even though one email he got had the subject line “spying” and began, “I have a friend who is a mole for us on the left.”
Then there are the persistent doubts about his truthfulness in telling senators in 2006 that he had no knowledge of Mr. Bush’s warrantless wiretapping program or his detainee treatment policy — claims that have been called into question by yet more emails, which showed he knew about both of those things years before they became public.
As Senator Dick Durbin of Illinois told Judge Kavanaugh on Thursday, “You say that words matter. You claim to be a textualist when you interpret other people’s words, but you don’t want to be held accountable for the plain meaning of your own words.”
Judge Kavanaugh was quick to provide lawyerly explanations for all of these discrepancies, but they paint a pattern that’s hard to ignore: He misstates facts under oath, and Republicans cover for him by making it hard, if not impossible, to get the documents proving it. With the help of the White House and a personal lawyer for Mr. Bush, Senator Chuck Grassley, the chairman of the Judiciary Committee, has subverted a long-established, nonpartisan process and hidden more than 90 percent of the material pertaining to Judge Kavanaugh’s time in government.
It’s only thanks to Senate Democrats and others that we’ve been able to see important pieces of the judge’s lengthy paper trail. There is far more that was never even requested. Far from being embarrassed by all this, Judge Kavanaugh is acting like someone who knows there is virtually nothing he can do to imperil his nomination.
Instead, he’s followed his own cynical advice to a 2002 judicial nominee: “She should not talk about her views on specific policy or legal issues,” he wrote in an email then. “She should say that she has a commitment to follow Supreme Court precedent, that she understands and appreciates the role of a circuit judge, that she will adhere to statutory text, that she has no ideological agenda.”
That is more or less how Judge Kavanaugh got through his hearings. But his ideological agenda is well known, which is precisely why he’s been on Republican Supreme Court shortlists for the last decade. That agenda includes, for starters, a well-established hostility to women’s reproductive rights and a stunningly expansive view of presidential power and impunity.
Republicans defend their steamrollering by saying that most Democrats have already made up their minds to oppose Judge Kavanaugh. That’s rich: In the months before the 2016 election, multiple high-ranking Republican senators openly vowed to block any and all Supreme Court picks by Hillary Clinton, period. It’s also irrelevant. The people deserve to know everything possible about nominees to a lifetime seat on the highest court in the land, and they depend on their senators to seek out that information and share it.
The Constitution calls this process advice and consent. Until the last few years, Republicans claimed to take that responsibility seriously. Now they are making a mockery of what is meant to be a careful and deliberative process by playing three-card monte with the American people. They did the same with last year’s tax bill, rushing it through in the dead of night with virtually no debate or review.
The Republicans engage in this sort of subterfuge for an obvious reason: While they hold unified power in Washington, most of their agenda is hugely unpopular. So they hide as much of it as possible out of a fear that if more of it came to light, they will pay at the polls. Come November, voters can make that fear come true.