Democracy in America | Paper chase

Brett Kavanaugh’s years as a government lawyer

A watchdog files lawsuits to produce the executive-branch papers of Mr Trump’s Supreme Court pick

By S.M. | NEW YORK

WHEN Donald Trump was considering his choice for Justice Anthony Kennedy’s seat on the Supreme Court, Senator Mitch McConnell reportedly asked the president to steer clear of Brett Kavanaugh, the long-time circuit court judge Mr Trump tapped on July 9th. Mr McConnell is said to have told Mr Trump that someone with a paper trail as long as Mr Kavanaugh’s could hit more snags and give Democrats more to gripe about than one of the greener judges on the list. Mr McConnell’s hesitations seem to have since vanished. The 12-year veteran of the Appeals Court for the District of Columbia Circuit is a “superb” choice, he says.

But Mr Kavanaugh’s documentary history is indeed extensive. It includes not only 300-some opinions he wrote as an appellate judge but untold thousands of documents connected to his near-decade of service in the executive branch. Before donning his black robe, he spent four years in the 1990s as an assistant to Kenneth Starr (pictured above, centre) investigating Bill Clinton and five years in the George W. Bush administration, first in the White House Counsel's Office and then as the president’s staff secretary. In the estimation of Garrett Epps, a law professor at the University of Baltimore, there has not been a Supreme Court nominee so thoroughly shaped by the executive branch since 1921, when former president William Howard Taft became chief justice.

What light do those years investigating and serving presidents shed on Mr Kavanaugh as a nominee for the high court? We know he drafted parts of the Starr report outlining a case for impeaching Mr Clinton. We also know that he reflected on this experience years later in a law review article, lamenting that the indictment and prosecution of sitting presidents could be “distracting”. In that 2009 article, he encouraged Congress to pass legislation insulating chief executives from such legal proceedings. But because most work of the executive branch takes place behind the scenes, we know little more about day-to-day missives that may give the public and the Senate greater insight into Mr Kavanaugh’s judgment and character. Few of those documents have seen the light of day.

Fix the Court, a Supreme Court watchdog organisation, is suing to change that. In May 2017, with an eye to Mr Kavanaugh as a possible future nominee, Fix the Court submitted a request under the 1967 Freedom of Information Act (FOIA) to the Department of Justice (DoJ). The group asked for a host of documents: every correspondence between Mr Kavanaugh and all DoJ employees from 2001-2006. Months later, in response to a DoJ request, Fix the Court narrowed its request to focus on communications between Mr Kavanaugh and two officials at the Office of Legal Counsel. Gabe Roth, executive director of Fix the Court, says these memos probably contain advice to Mr Bush on a range of issues from "the opening of the Guantanamo Bay prison [to] the justification for the war in Iraq". But when the organisation checked on its request twice last year and again in May 2018, the DoJ answered curtly. The request is “in the queue behind many” others, the department wrote in December 2017. Six months later, still no news: “[u]nfortunately, the status for this request remains the same”.

This month, Fix the Court, with the help of American Oversight, another non-profit, asked a federal district court in the District of Columbia to put an end to this stonewalling and compel the DoJ to release the documents. It is doing the same with another ill-fated FOIA request to the National Archives and Records Administration (NARA). On April 4, 2018, Fix the Court asked NARA to release all of Mr Kavanaugh’s correspondence, notes and memos from his stint working for Mr Starr from 1994-1998. The group also wants to see any performance reviews and complaints that private citizens may have filed against Mr Kavanaugh, among other papers. On June 12th, NARA wrote back that since this universe of documents weighs in at about 20,000 pages, and as it has a five-year backlog of requests, it needed 22 months to provide the first boxes and more than five years to fully comply.

If Mr Trump and most Senate Republicans have their way, Mr Kavanaugh will be finishing his first half-decade on the Supreme Court bench by the time those records are made public. It would be better if the records came to light before senators vote to confirm him to a lifetime appointment shaping American law. Their significance is especially pronounced at a time when a special counsel investigation is examining possible ties between Russian meddling in the 2016 election and the Trump campaign. The Supreme Court could be called upon to resolve several critical questions.

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