You can forgive Democratic senators for saying “I told you so.”
For over a month, Democrats (and this writer) have complained that the confirmation process of Supreme Court nominee Brett Kavanaugh is fatally flawed because the records of Kavanaugh’s White House tenure were being redacted by his former deputy, then redacted again by the Trump White House, then redacted a third time by Judiciary Committee chair Chuck Grassley (R-Iowa).
As a result, only 7 percent of Kavanaugh’s White House records have been released to the public—compared to 99 percent of Justice Elena Kagan’s, a nominee of President Obama.
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Well, so what, Republicans said. You’ve got over 400,000 pages to look at—a few more isn’t going to make a difference.
On Thursday, with the release of a half dozen emails by Grassley and several more by Sen. Cory Booker (D-NJ), the Democrats have been proven right. Brett Kavanaugh has misled the Senate at least four times, and the censored emails have been withheld not because of national security or executive privilege, but, at least in part, because they make Kavanaugh look bad.
Confirmation of Judge Pryor
The clearest contradiction between Judge Kavanaugh’s sworn testimony and the formerly confidential email record concerns the nomination of Judge William Pryor, a conservative firebrand. In 2006, Kavanaugh was asked, by the late Sen. Ted Kennedy, whether Pryor’s extreme statements disturbed him. Kavanaugh replied that he was not involved in the selection or vetting of Judge Pryor.
When Sen. Patrick Leahy (D-VT) asked him Thursday, “did you interview William Pryor?” Kavanaugh hedged a bit, saying “I don’t believe so. It’s possible but I don’t believe so.”
Leahy responded by entering a formerly-confidential email into the record that states clearly that Kavanaugh actually did interview Pryor. “How did the Pryor interview go?” he was asked in December, 2002. “Call me,” he replied.
Even if Kavanaugh’s 2018 hedge protects him against perjury, his flat denial in 2006—only three years after the Pryor nomination itself—is clearly a false statement given under oath.
Memogate
As we reported Wednesday, Leahy challenged Judge Kavanaugh over his role in “Memogate,” a 2003 scandal in which a low-level Republican aide named Manuel Miranda stole Democratic memos from a shared server. At his 2006 hearing, Kavanaugh denied receiving any stolen documents. Now, Kavanaugh says that while he may have received stolen documents, he didn’t know they were stolen.
Thursday, some—but apparently not all—of the Memogate emails were released, and they cast serious doubt on those claims.
For example, on March 28, 2003, Miranda sent Kavanaugh an eight-page email—subject header “For use and not distribution”—that is obviously a cut-and-paste from a Democratic strategy document. (Sample quotes: “Here are just five examples that clearly refute the Republicans’ incorrect claims.” “That is already far more cooperation than this Senate has received from this Administration.”) Even a casual reader would know that this is an internal Democratic party document, let alone the Republican staffer in charge of judicial nominations. Kavanaugh’s claim that there was “nothing untoward” in the documents he received strains credulity.
Moreover—and ironically, given the quasi-confidential nature of the emails in question—we now know that Kavanaugh received Democratic documents marked as confidential. A just-released email from Miranda, dated July 28, 2002, says that “Senator Leahy’s staff has distributed a confidential letter to Dem[ocratic] Counsel.” Miranda does not say how he somehow came into the possession of this confidential letter—though he does impudently “ask that no action be taken by any of your offices… except as I request.”
One of Kavanaugh’s most ludicrous denials is about a June 5, 2003, email regarding Supreme Court confirmations that has the subject line “spying” and the first line “I have a friend who is a mole for us on the left.” “None of this raised a red flag with you?” Leahy asked incredulously. “It did not, Senator,” answered Kavanaugh. “Again, people have friends across the aisle who they talk to… and there was a lot of bipartisanship on the committee.”
Wait—so being a “mole” and performing “spying” is actually a sign of bipartisan comity? Credit to Judge Kavanaugh for making such statements with a straight face.
Warrantless Wiretaps
A third clearly false statement made by Kavanaugh under oath regards his involvement in President Bush’s “Terrorist Surveillance Program,” known by most people as the warrantless wiretapping program.
On Wednesday, Judge Kavanaugh said he first learned about it from a December 2005 article in The New York Times.
On Thursday, an email was released showing that Kavanaugh emailed John Yoo, the Department of Justice lawyer responsible for the Bush-era “torture memo,” about the program on Sept. 17, 2001. “Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” Kavanaugh asked.
Unless there’s some bogus distinction to be drawn between acts of random/constant surveillance and a program of random/constant surveillance, that makes Kavanaugh’s statement on Wednesday a lie under oath.
Roe
Grabbing most of the headlines are Kavanaugh’s somewhat conflicting statements on Roe v. Wade. In fact, this is the least smoking of the emails’ smoking guns, but given that the entire confirmation process has been owned by this one issue, the disproportionate attention is understandable.
At issue is an op-ed which Kavanaugh was drafting which originally said that “it is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land”—language quite similar to that used by Kavanaugh himself in his confirmation hearings.
In a 2003 email, however, Kavanaugh said “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.”
Asked about the apparent contradiction Thursday, Kavanaugh noted that it is factually true that “all legal scholars” do not agree that Roe is the settled law of the land. Of course, “all legal scholars” don’t agree on anything at all, which is why phrases like that are known as “weasel words,” since they allow the writer to weasel out of meaning anything.
Speaking of splitting linguistic hairs, Kavanaugh then reiterated his view that Roe is a precedent. But that is precisely not the same thing as the “settled law of the land.” Indeed, Kavanaugh’s point in the email is exactly that: While Roe is a precedent, it isn’t considered “settled law” because the Supreme Court can overrule its own precedent.
Really, Kavanaugh’s careful choice of words—precedent rather than settled law—is yet another bit of clear evidence that he does not believe Roe, which he has called part of a “tide of freewheeling judicial creation of individual rights,” is beyond overturning. Obviously.
Did I Say That Out Loud?
Finally, the just-released emails contain a treasure trove of compromising, embarrassing statements by Kavanaugh—and no security concerns. This is exactly what Democrats have been saying for weeks: that President Bush’s lawyer (formerly Kavanaugh’s deputy), the Trump White House, and Sen. Charles Grassley cannot be trusted to edit this material.
Most damning is Kavanaugh’s (rejected) proposal that John Yoo, as noted above the primary author of the infamous Bush administration torture memos, be made an appellate court judge.
As we noted last month, the torture memo is one of the greatest black holes in the withheld emails. Did Kavanaugh know of the torture program? Did he offer a legal opinion about it? Did Kavanaugh agree with Yoo that “severe pain and suffering” only means pain “associated with serious physical injury so severe that death, organ failure, or permanent damage” would result?
At least the last question can be answered. Surely he did—his recommendation was made only days after Yoo’s memo was circulated.
The overwhelming majority of the legal academic community regards the torture memo as not only false, not only one of the lowest points in American human rights history, but tantamount to encouraging war crimes. Kavanaugh thought it should be rewarded with life tenure on the federal bench. And once again, none of this would be known had the “committee confidential” emails not been released.
Second are the remarks Kavanaugh made regarding racial profiling in the wake of 9/11. On Jan. 17, 2002, he wrote in an email that he and others “DO need to grapple—and grapple now—with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented.” In other words, although Kavanaugh says he “generally favor[s] effective security measures that are race-neutral,” non-race-neutral measures—i.e., racial profiling—will still have to be used in the meantime.
Once again, this is explosive material: a nominee for the Supreme Court has endorsed racial profiling, at least on an “interim” basis. Likewise with comments questioning whether Hawaiians count as Native Americans and accusing backers of affirmative action as acting in bad faith.
Lastly, other emails are just plain embarrassing—discussions of gambling losses, for example—or highly revealing. For example, here’s Kavanaugh coaching a judicial nominee: “She should not talk about her views on specific policy or legal issues. 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.” Sound familiar?
That playbook is no secret, of course, but it certainly gives the lie to any notion that Kavanaugh is really answering the questions put to him. He is lip-synching the same words he instructed other nominees to lip-synch 15 years ago.
Of course, none of this may matter. Republican senators have held their noses and put up with Trump for 20 months just to get to this moment—they’re not going to blow it now just because of a little perjury, racism, using stolen documents, and suborning of torture.
Then again, if the Democrats are smart, they’ll keep drip-drip-dripping a few emails a day for the next several weeks. After all, there’s no real justification for these “committee confidential” emails to be withheld, and no real explanation for the conflicts of interest among those selecting which emails to release. At a certain point, the narrative may shift; a centrist consensus may develop that Kavanaugh is just too much of a political operative who has said too many problematic things. It’s not likely, but it is possible.
Undoubtedly, there’s still much more that we don’t know. At the very least, Leahy said there are emails proving Kavanaugh met with Manuel, the leaker, in a bar to exchange documents—we haven’t seen those yet. But more likely, if these couple of dozen emails are reflective of the hundreds of thousands of pages still under wraps, we literally ain’t seen nothing yet.
