By Sen. Patrick Leahy
With President Trump’s selection of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, the obligation now falls to the Senate Judiciary Committee to carefully consider this nomination. By any measure, it is a daunting responsibility.
I have served in the Senate for 44 years, a span that includes 19 nominations to the Supreme Court and 20 years as the top Democrat on the Judiciary Committee. From reproductive rights to presidential immunity, health care to marriage equality, I have never seen so much at stake with a single seat.
Like many past nominees, Judge Kavanaugh has impressive academic credentials and judicial experience. But unlike most of his predecessors, Judge Kavanaugh spent much of his career engaged in some of the most partisan fights in our nation’s recent history — including Kenneth Starr’s investigation of President Bill Clinton, the Bush v. Gore case and five contentious years in President George W. Bush’s administration.
Judge Kavanaugh thus has quite a paper trail — over one million pages — which the White House was well aware of when he was nominated.
In the coming days Senate Republicans will decide if they support reviewing Judge Kavanaugh’s entire record. Some are already hedging. And Sen. Mitch McConnell is warning that Democrats will pay a political cost if they insist on obtaining Judge Kavanaugh’s full record, which may delay a vote on his confirmation.
My response: Democrats should not worry. And Sen. McConnell’s complaints about possible delays for a Supreme Court nomination ring hollow after he stonewalled Merrick Garland’s nomination to the court in 2016.
The methodical review of a federal court nominee’s record is not optional. It is the most fundamental part of the Senate’s constitutional obligation to provide advice and consent. Just last week, such vetting led to the withdrawal of a circuit court nominee with a record of offensive college writings. This process must be even more exhaustive for nominees to our nation’s highest court. And not long ago it was treated that way on both sides of the aisle.
Republicans need only look back to Justice Elena Kagan who, like Judge Kavanaugh, had served in the White House. As chairman of the Judiciary Committee at the time, I worked with Sen. Jeff Sessions, then the committee’s ranking Republican, to request the full universe of her documents from the Clinton Library. Crucially, President Obama made no claims of executive privilege. Less than 1 percent of the documents were withheld on personal privacy grounds. And to this day her emails are posted online for the world to see.
I also supported Sen. Sessions’ request for documents related to military recruitment at Harvard while Justice Kagan was dean of the law school. It was beyond the scope of our committee’s usual practice. But I agreed with Sen. Sessions that the records would be of public interest and therefore ought to be subject to public scrutiny.
This is what the American people should expect of Judge Kavanaugh. Every document of public interest should be made public. No artificial restrictions. No abuse of executive privilege. The American people deserve the unvarnished truth, just as Senate Republicans rightly demanded of President Obama’s nominees.
The need to vet Judge Kavanaugh’s full record is all the more urgent because the last time he testified before the Senate, he appeared to provide a misleading account of his work in the White House. At his 2006 confirmation hearing, Sen. Dick Durbin and I asked about his knowledge of several Bush-era scandals, including warrantless wiretapping, torture and detainee treatment. Judge Kavanaugh testified that he had no knowledge of such issues until he read about them in the newspaper. But a year after his confirmation, press reports indicated that he had participated in a heated discussion in the White House over the legality of detainee policies.
The fact that a senior official in the Bush White House would be involved in such debates is not surprising.
Indeed, Karl Rove recently described Judge Kavanaugh as playing a major role in reviewing and improving practically every policy document that made it to the president. Yet these accounts are impossible to reconcile with Judge Kavanaugh’s sworn testimony. Only with his full records will we know the truth.
We’ve learned this lesson before: Wearing blinders when considering a former administration official for a lifetime judgeship presents grave risks. When President Bush nominated a Justice Department lawyer, Jay Bybee, to the Ninth Circuit in 2003, I asked about his involvement in legal issues surrounding the war on terror. He did not answer the questions. A year after his confirmation, the American people learned that Judge Bybee gave the legal greenlight for the use of torture, giving rise to one of the darkest chapters in our nation’s history. Had we known that at the time, Mr. Bybee would not have become Judge Bybee.
Judge Kavanaugh was directly involved in some of the most politically charged moments of our recent history. The Senate owes the American people an unsparing examination of his nomination, which could affect their lives for a generation. I urge Senate Republicans to live up to the bipartisan standard of transparency we set for Justice Kagan and demand his full record. That means all of it.
Democrat Patrick Leahy is Vermont’s senior U.S. Senator and a senior member of the Senate Judiciary Committee.