Brett Kavanaugh’s Supreme Court hearings start next Tuesday. Republicans on the Senate Judiciary Committee will strive to keep the focus on his years on the bench—since 2006, he’s been a judge on the Court of Appeals for the District of Columbia. They will try, in other words, to impress upon America that this man wears a robe, his career is that of distinguished jurist, and he calls proverbial balls and strikes.
Democrats will, inevitably and necessarily, ask Kavanaugh questions about his judicial outlook and some of his opinions. They should try to pin him down on Roe v. Wade as precedent, and the legal limits of money in politics, and any number of matters, though those attempts will probably be in vain (and boy are they going to be missing Al Franken, who distinguished himself in the Trump years as clearly the committee’s sharpest questioner).
But there’s something else Democrats should do too, if for no other reason than to let America see the full measure of the man. Before he became a judge, Kavanaugh was a lawyer. But he was a certain kind of lawyer. He was a very political, partisan, and ideological lawyer. He was, in fact, a political operative with a J.D. degree.
And Democrats’ job number one is to show America that Kavanaugh.
Kavanaugh became that kind of lawyer because of his association with Ken Starr, the very partisan, very unpopular, and very unsuccessful independent counsel who prosecuted Bill Clinton in the 1990s and later became the very unpopular, very unsuccessful, and very scandal-scarred president of Baylor University.
You may have read speculation about whether, when he worked for Starr, Kavanaugh leaked grand jury material to the press, which would violate federal rules. No one has pinned that down, and no one probably will, as it would require the journalists who got the leaks to violate a canon of our trade by outing a source.
What is easily demonstrable, however, from documents in the public domain, is how aggressively partisan Kavanaugh was in the 1990s. On both the Monica Lewinsky and Vince Foster matters, Kavanaugh spent time and taxpayer dollars engaging in political vendettas and chasing down conspiracy theories. It’s not exactly the kind of background that suggests one belongs on a fast track to becoming an associate justice of the U.S. Supreme Court.
Here for example is part of a paragraph from a memo Kavanaugh wrote to Starr and others on Aug. 15, 1998, two days before Starr deposed Clinton for that famous grand jury testimony. Kavanaugh wrote:
“He should be forced to account for all of that and to defend his actions. It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear—piece by painful piece—on Monday…Aren’t we failing to fulfill our duty to the American people if we willingly ‘conspire’ with the President in an effort to conceal the true nature of his acts?”
The next month, Kavanaugh would go on to make sure that the Starr Report read like an issue of Penthouse. It was appalling. No public purpose of any kind was served; only a partisan purpose. I would love to see a Democratic senator pin Kavanaugh to the wall on this—read quotes from the Starr report and ask, why put this in, why put that in?
It may not cost him any committee votes, but it would show the country that Donald Trump and Senate Republicans have nominated someone for the Court who used totally gratuitous means to pursue an extremist agenda (trying to remove Clinton from office) that barely one third of Americans supported at the time.
He was even worse on the Foster investigation, which he ran under Starr. When Kavanaugh started looking into Foster, three investigations had already ruled the case a suicide: the previous independent counsel, who was fired by right-wing judges for not being ideological enough; a Senate committee; and a House committee.
In August 1994, the ranking Republican on the House committee, William Clinger, issued a report saying that Foster killed himself and rejecting the loony conspiracy theories that were flying around at the time: “Perhaps the unexpected death of any high government official will needlessly bring cries of conspiracy from many in our society. That is unfortunate.”
You had to have been around at the time to know just how crazy—and malicious to the grieving family of a depressed man who had shot himself in the mouth—those theories were. And yet, the American right simply continued to believe them, the most insane iteration of which held that the Clintons had Foster killed and that Hillary had also had an affair with him.
Kavanaugh chased down all of this. In July 1995, early in his tenure working for Starr, he was told by an FBI agent: “In my personal opinion, we have established beyond a reasonable doubt that the death was caused by a self-inflicted gunshot wound at Ft. Marcy Park by the weapon that was found in the decedent’s hand.”
But Kavanaugh, unmoved, then spent two more years investigating—questioning Foster’s grieving family, including his daughter, trying to track down every known source of Foster’s fingerprints, getting carpet fiber samples from the White House to match them against fibers found on Foster’s shoes, and more.
Remember, three investigations had all agreed, and on a bipartisan basis, that Foster had killed himself because he was depressed. But Kavanaugh and Starr burrowed on, until they, too, were forced to confront the obvious and conclude it was a suicide by a depressed man. Again, no purpose was served. Taxpayer dollars were wasted. It was simply not honest legal work by any common-sense measure, and it gave oxygen to the kinds of conspiracy theories that proliferate today.
Again, I’d love to see the Democrats remind Americans of that Brett Kavanaugh. I don’t know if a member of the Foster family is willing to come testify about all this, but I think it might be instructive for Americans to hear one of them describe what it was like to be dragged through that, hectored by government lawyers for his daughter’s hair samples.
There’s still more. Kavanaugh worked in the White House Counsel’s office under George W. Bush. He was reportedly the go-to man in the White House for the Federalist Society, for Jay Sekulow’s American Committee for Justice, and others. After that, he worked as White House staff secretary.
Those are political jobs, especially the second one. At his 2006 confirmation hearing for the DC Circuit, two Democratic senators said they believed Kavanaugh had basically lied to them about his role in torture policy. Those senators, Pat Leahy and Dick Durbin, are members of the Judiciary committee. Americans should see this Kavanaugh, too.
Kavanaugh will point to a 2009 law review article in which he wrote that he had come to think that such investigations as the ones he helped conduct in the 1990s “take the President’s focus away” from his duties. He’s older and wiser—so he says. But that doesn’t change what he did. He has a record; he must be made to defend it.
And besides, how convenient for Donald Trump that he now thinks this!
This nomination is arguably dubious to begin with. The president who nominated him is under serious investigation, and it seems almost certain that Kavanaugh will someday rule on the degree to which the Constitution constrains this president.
At that point, the question will be whether Kavanaugh makes a political decision. If the Democrats do their job next week and lay bare Kavanaugh’s very political background, then just maybe there’s a chance he’ll think a little harder than he might have otherwise when United States v. Trump comes before him.