While I would not be so presumptuous as to assume that Judge Brett Kavanaugh is an avid Nation reader, it seems that President Trump’s nominee to serve on the Supreme Court has some familiarity with this publication. Unfortunately for Kavanaugh, his apparent interest in The Nation’s writing about the judicial selection process adds to the argument against confirming him for a life term on the nation’s high court.
The evidence that Kavanaugh used his legal skills to promote aggressively conservative and aggressively partisan judicial activism—which I’ll discuss in a moment—is just too overwhelming. And the evidence that he perjured himself in testimony to the Senate is just too troubling.
The controversy regarding Kavanaugh’s deceptive testimony has roots in his work almost two decades ago as an associate in the White House Counsel’s Office. It was there, as part of a closely knit team of partisan lawyers and political operatives, that he helped manage the judicial nominations that were advanced by President George W. Bush and, though this is still too little noted, Bush White House political czar Karl Rove.
Between 2001 and 2003, two Republican staffers on the Senate Judiciary Committee regularly hacked into the private computer files of six Democratic senators, including me. They stole 4,670 files, and they used them to assist in getting President Bush’s most controversial judicial nominees confirmed. This became public in late 2003 when The Wall Street Journal happened to print some of the stolen materials.
The ringleader behind this massive theft was a Republican Senate staffer named Manny Miranda. The scandal amounted to a digital Watergate—a theft not unlike Russia’s hacking of the DNC.
During all of this, Judge Kavanaugh worked in the White House Counsel’s Office on judicial nominations. He worked hand-in-hand with Miranda to advance these same controversial nominees. Not surprisingly, Judge Kavanaugh was asked extensively about his knowledge of the theft during both his 2004 and 2006 hearings. And I mean extensively: 111 questions from six senators, both Republicans and Democrats.
He testified under oath—and he testified repeatedly—that he never received any stolen materials, and that he knew nothing about it until it was public. He testified that if he had suspected anything “untoward” he would have reported it. At the time, we left it there. We didn’t have evidence to suggest otherwise.
Today, with the limited amount of Judge Kavanaugh’s White House record that has been provided to the Judiciary Committee, for the first time we have been able to learn some information about his knowledge of this theft.
That knowledge has led Leahy to argue that Kavanaugh “misled the Senate during his earlier hearings for the DC Circuit Court by minimizing and even denying his involvement in Bush-era controversies.” The Bush White House documents that have been released reveal a great deal about Kavanaugh’s machinations, along with the fact that he and Miranda took an interest in an investigative report by The Nation on the extreme politicization of the nomination and confirmation processes by Rove.
Among the small batch of now-released e-mails that Miranda sent to Kavanaugh was one—addressed to “Brett” and signed “Manny”—that concluded: “On a related note the Nation article linking Owen to Rove is being distributed by the Leahy staff.” Marked “highly confidential,” the e-mail was dated 7/18/2002. That was two weeks after I wrote a Nation piece headlined: “Karl Rove’s Legal Tricks: Packing the judiciary with right-wingers like Priscilla Owen.”
The article examined a particularly shady aspect of the judicial selection process that Kavanaugh had to have known about and—if the photos of him embracing Rove in those days are any indication—does not appear to have rejected. It is an aspect that reveals the extent to which Bush’s political henchmen jettisoned any sense of duty to the Constitution and the rule of law in order to score partisan points.
In the first years of Bush’s presidency, I paid close attention to Rove’s efforts to infuse the selection process with politics. I had written a book on the Bush v. Gore recount fight in Florida, which considered the intervention by a Republican-aligned majority on the US Supreme Court to halt an essential review of disputed ballots. As such, I was especially interested in the promotion of jurists who were associated with Bush’s primary political fixer. So I spent a good deal of time researching and writing about the nomination of Texas Supreme Court Justice Priscilla Owen to serve on the United States Court of Appeals for the Fifth Circuit. The article on “Karl Rove’s Legal Tricks” described how the man who was described as “Bush’s brain” engineered Owen’s transit from corporate law to conservative judicial activism.
It opened by recalling how President Bush’s in-house lawyer at the time, Alberto R. Gonzales, had clashed with Owen when they both served on the Texas high court. At one point, Gonzales complained that Owen was proposing “an unconscionable act of judicial activism” in order to block a young woman’s access to abortion. With that in mind, I noted that “as the Senate Judiciary Committee prepares for a high-stakes hearing on Owen’s nomination to a place on the second-highest rung of the federal judiciary, White House counsel Alberto Gonzales finds himself in the uncomfortable position of having to sing the praises of a woman he knows from personal experience to be a right-wing radical.”
The article continued:
How did Gonzales, who as White House counsel heads the Bush Administration’s screening committee on judicial appointments, wind up on the cheerleading squad for an appeals court nominee whose extremism he scored barely two years ago? That’s easy. Gonzales is not in charge on this one. “Owen,” explains Craig McDonald, director of the nonpartisan group Texans for Public Justice, “is a Karl Rove special.”
Rove, the political Svengali who ran George W. Bush’s presidential campaign and parlayed that experience into a taxpayer-funded job as White House senior adviser, has orchestrated Owen’s rapid rise ever since he plucked her from a gig as an undistinguished hired gun for Transcontinental Gas Pipe Line and other energy firms to make her his pet judicial candidate. Back in 1994 the man whom Lone Star pols still refer to as “Bush’s brain” wanted to make the state’s top court politically friendly for the man he was about to make governor. Owen seemed suitably pliable, and with Rove guiding her campaign, the political unknown who in sixteen years as a corporate lawyer was the sole counsel on only four cases that were tried to a verdict was suddenly a Texas Supreme Court justice. Now Rove is determined to place his protégée on one of the most influential appeals court benches in the land. This confirmation crusade is not about Owen, who has never been anything more than a political pawn for the nation’s premier GOP operative. It’s not even about Rove’s desire to exact revenge for the Senate Judiciary Committee’s rejection of Mississippi Judge Charles Pickering’s nomination to serve on the Fifth Circuit. Rather, Rove is working to win the fight to confirm Owen in order to send a powerful signal to movement conservatives about this Administration’s determination to pack the courts with judicial activists who are willing to challenge antidiscrimination laws, upset basic protections for workers and consumers, and, above all, build a judicial infrastructure that will eventually overturn abortion rights. “Clearly,” says McDonald, “Rove picked her as a favor to the right wing because she is the darling of the right wing.”
Can we disassociate Kavanaugh from Rove and from Rove’s political projects? That’s very hard to do, when the recently released e-mails reveal his deep involvement with the Owen nomination fight, about which Rove cared so deeply. It is even harder to do because Rove has emerged as one of the most ardent advocates for Kavanaugh’s Supreme Court nomination. Rove says Kavanaugh was the detail man who played a critical role in shaping and advancing the strategies of the Bush team—to such an extent that the political operative hails the nominee as the man who understood the administration’s agenda and “crystallized it.”
The fight over the Owen nomination was one of the bitterest, and longest, judicial selection struggles of the Bush presidency. It was incredibly high-profile. It was incredibly controversial. It went on for years before, finally, a deal was cut in 2005 that (after a 55-43 Senate vote) put Owen on the Fifth Circuit bench. Even then, Rove and his allies in the administration did not give up on advancing Owen; the talk of nominating her for the US Supreme Court was so serious that then Senate minority leader Harry Reid reportedly threatened a filibuster if the attempt was made.
Now the man who e-mails reveal was in the thick of the bare-knuckles struggle to confirm Owen is himself a Republican nominee for the Supreme Court. Brett Kavanaugh is trying desperately to bury the past. He stands accused of lying under oath in order to do so. That’s an exceptionally serious matter. But what he is trying to hide is equally serious. Kavanaugh does not want people to know that he supported and sustained Karl Rove’s legal tricks, that he was part of the cabal that for political purposes sought to pack the courts with right-wing judicial activists.
In this he is smart. Even Brett Kavanaugh must recognize that a lawyer who by all indications was intimately involved with Rove’s drive to make the federal judiciary a pawn in his political game has crossed a line of disqualification for a Supreme Court nominee.