IDEAS

Schiff served as Chief Counsel for Senator Russ Feingold; Lucius served as Nominations Counsel and Staff Director for Senator Patrick Leahy; Berman served as Chief Counsel for Senator Charles Schumer; Graves served as Chief Counsel for Nominations for Sen. Leahy.

We watched the testimony of Judge Brett Kavanaugh before the Senate Judiciary Committee with dismay and disbelief. His many misleading and false statements cast serious doubt on whether he should be confirmed to a seat on the U.S. Supreme Court. The events of this weekend only make it clearer the Senate must not act in haste. At the very least, the Senate should not vote on his nomination until still-secret documents from his time in the George W. Bush White House are made public and until the sexual misconduct allegations that have just become public are thoroughly investigated.

This is not about the dance many nominees attempt in order to avoid expressing an opinion on legal issues they might face on the court. It is about a pattern of deceptive answers on a range of questions about his past activities and agenda to change our laws through the courts. We believe this deception, both earlier this month and in his 2004 and 2006 nomination hearings for the D.C. Circuit, was intentional. His truthfulness, of course, is very much at issue in the latest allegations against him, since he has categorically denied the sexual assault of which he is accused.

Kavanaugh’s nomination to the D.C. Circuit in July 2003 was highly controversial because of his role in very partisan matters, including judicial nominations. Emails revealed during the hearing, and some just a few weeks before, show that he went to great lengths to mislead Senators in 2004 and 2006 about his true role in those matters, as well as his knowledge of and reliance on confidential information about the strategy of Democratic Senators, whose files had been stolen by Manuel Miranda. Miranda, who worked closely with Kavanaugh on judicial nominations, was at the time a Republican staffer for Sen. Orrin Hatch and then the nominations counsel for Majority Leader Bill Frist.

This is important because the American people need judges who are honest on both the facts and the law. Kavanaugh’s deception was about files that were stolen from the Senate itself and about his role promoting judicial nominees with very controversial records that caused their nominations to stall. Kavanaugh’s sworn testimony goes to the heart of the question of whether he should be entrusted with a lifetime job on our highest court. He should not.

Miranda’s thefts over the period from December 2001 through early April 2003 were as serious an incident as we experienced during our congressional service — police tape was wrapped around the committee server room when the thefts were discovered. And an extensive report on the incident was issued by Senate Sergeant-at-Arms William Pickle in March 2004 the month before the Judiciary Committee’s first hearing on Kavanaugh’s nomination to the D.C. Circuit.

Makan Delrahim, who President Donald Trump appointed last year to head the Antitrust Division of the Department of Justice, worked for Hatch at the time of the theft. In connection with his nomination hearing, he said, “I find the misconduct described in the [Pickle Report] to be completely inappropriate, do not excuse it, and deeply regret that any such conduct by Senate Judiciary Committee staff occurred.” Chairman Hatch, Delrahim’s boss, concurred at the time of the report, saying in March 2004, “I am mortified that this improper, unethical, simply unacceptable breach of confidential files occurred.”

At his first confirmation hearing in April 2004, Kavanaugh said he had never received material stolen from Democrats. He repeated that testimony in May 2006 under questioning by both Democratic Senators and Chairman Hatch.

But emails released earlier this month, after originally being deemed “committee confidential,” show that Kavanaugh was in frequent contact with Miranda and received material that had been stolen from the Senate Judiciary Committee server. These emails contradict his testimony under oath.

When confronted by Senator Leahy in the 2018 hearing, Kavanaugh stood by his earlier testimony, claiming that he never suspected the material he received was stolen and even arguing that it was “common” for the White House to receive strategic materials, like confidential letters or talking points, of Democratic staff. He repeated the claim that it was typical multiple times. He even testified: “It seemed like a lot of times the staff was cooperating at times … about judicial nominations. And so, it would not have raised anything in particular in my mind if we learned, Oh, Senator Leahy is concerned about this.

As former staffers who were there at the time, we find this testimony preposterous. While Democrats and Republicans worked together on non-controversial legislation and nominations, the fights over nominees Senators did oppose strongly — such as Miguel Estrada, Priscilla Owen, Bill Pryor and Charles Pickering — were full-fledged and often bitter on both sides. To suggest it would have been common to receive contents or descriptions of our memos, talking points, letters and other items about Democratic Senators’ strategies on how to defeat these highly controversial nominees is ridiculous. This is yet another deceptive claim by this nominee.

Kavanaugh also misled the Senate in his 2006 nomination hearing about his involvement in pushing controversial nominees like Pryor and Pickering. Then, he said the Pryor nomination was not one that he had “worked on personally,” and that the Pickering nomination was not one that he had “primarily handled.” He denied awareness of Pryor’s incendiary comments that Roe v. Wade was the “worst abomination in the history of constitutional law,” and of Pickering’s unethical solicitation of recommendation letters from lawyers with cases pending before him as a trial judge.

But this no longer appears true. The limited number of documents now available show that Kavanaugh interviewed and recommend Pryor for the 11th Circuit defended Pryor’s record to the Washington Post, drafted letters and prepared background material for Senators and their senior staff on Pickering, coordinated strategy with the Justice Department and the Judiciary Committee, and took part in or was invited to meetings about the nominees, including with Pickering’s son and other top supporters. All of this was known to Kavanaugh when he testified under oath in 2004 and 2006, but it was not known to Senators until emails contradicting his testimony were released this year.

That Kavanaugh was pushing to nominate someone who made statements like Judge Pryor did about Roe v. Wade certainly casts doubt on his statement in 2004 that he rarely had knowledge of nominees’ ideological views

Whether any of these statements should be the subject of federal charges for perjury or impeachment proceedings is a question for prosecutors, the courts and Congress. What is clear now, however, is that Brett Kavanaugh knew what he was being asked in his hearings and was intentionally evasive and misleading in his answers to questions under oath.

Why would he do that? Because downplaying his participation in the most partisan and hard-fought judicial nominations of that period was a key part of the effort to secure his own spot on the federal bench. Had the documents that are now available to the public been seen by Senators in 2006, he very well might never have been confirmed to the D.C. Circuit.

It is crucial to note that the Senate still does not have access to all of Kavanaugh’s records on these matters. The National Archives has estimated that it has millions of pages of documents from his time as a political appointee in the Bush White House. We simply do not know what’s still being hidden from the committee and the American people about these and other issues.

What we do know is that Kavanaugh’s former Deputy, Bill Burck, has asserted a blanket claim of privilege on over 100,000 pages of documents, including those about Kavanaugh’s work on Bush judicial candidates. We are unaware of any previous time where executive privilege has been used to block the release of documents to the Senate during a Supreme Court nomination.

It would be unprecedented and unwise for the Senate to act on the nomination without reviewing the full record. Furthermore, especially in light of the serious and credible charges that became public this weekend, it would be irresponsible for the Senate to rush this nominee to a vote with so many unresolved questions about his honesty and integrity.

To uphold the integrity of the U.S. Senate’s nomination process, and maintain the integrity of the U.S. Supreme Court, Judge Brett Kavanaugh’s nomination must not move forward.

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