When Brett M. Kavanaugh came before the Judiciary Committee in May 2006 for his nomination to be an appeals court judge, senators pressed him on his role in President George W. Bush’s use of signing statements to claim the power to bypass new laws – like a much-disputed assertion the previous December that he could override a ban on torture.
Judge Kavanaugh, who at the time was the White House staff secretary, acknowledged handling draft signing statements to ensure that “relevant members of the administration have provided input” before presenting them to Mr. Bush. But the nominee sidestepped questions about any advice or views he had about them…. Now that President Trump has nominated Judge Kavanaugh to the Supreme Court, the opacity of his testimony about Mr. Bush’s signing statements, including about the torture ban, is becoming a case study for Democrats’ vehement arguments that the Senate must see his staff secretary files before any confirmation hearing.
Let’s unpack this a bit because it’s an important vulnerability for Donald Trump’s high court nominee.
In the Bush/Cheney White House, Kavanaugh spent three years as the staff secretary in the West Wing, and his tenure spanned an especially controversial period in which the then-president tackled issues such as torture, black sites, and the detention facility at Guantanamo Bay.
In response to particularly pointed questions from Sen. Dick Durbin (D-Ill.) in 2006, Kavanaugh testified, “Senator, I was not involved and am not involved in the questions about the rules governing detention of combatants, and so I do not have any involvement with that.”
We later learned that his denial wasn’t exactly true. After Kavanaugh’s confirmation, it became clear that he had been directly involved in internal White House discussions on the issue – and lying under oath to the Senate is the sort of thing that could be problematic for someone seeking a lifetime seat on the nation’s highest court.
Complicating matters, as the Washington Post recently noted, Kavanaugh went on to participate in “a number of cases related to the detention of terrorism suspects” – cases he arguably should’ve recused himself from – raising related questions about his judicial ethics.
The new report from the New York Times adds an additional dimension to the fight, since Kavanaugh, during his time as Bush’s staff secretary, also likely worked on a presidential signing statement related to torture.
To fully examine this part of Kavanaugh’s background, senators would need to review records from his staff secretary work – but this is an area that Senate Republicans are prepared to overlook. In fact, late last week, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) sent a request to the Bush library for materials related to Kavanaugh’s work in the White House Counsel’s office – but the request excluded documents related to Kavanaugh’s work as staff secretary.
If there’s a sound defense for such a position, I can’t think of it.