In response to his nomination in 2003 Mr. Kavanaugh completed a questionnaire for the Senate that asked him to cite the number of cases hes tried before a court. He replied, none. Thats because hes never set foot in a courtroom after graduating from law school in 1990. Wouldnt it be important for an appeals court judge to have considerable experience? Especially a judge serving on the D.C. Court of Appeals, since this court has exclusive jurisdiction in approving the policies of several government agencies.
To be sure, not all appeals court judges have had extensive courtroom experience. But those who havent have typically been notable legal scholars. Mr. Kavanaughs scholarly experience consists of having only two law journal publications to his credit, one of which was merely a footnote. His qualifications consist of having been an assistant to Kenneth Starr during his investigation of President Clinton, and serving in President Bushs Office of Legal Counsel.
For five years Mr. Kavanaugh worked as an assistant to Kenneth Starr in the Office of Independent Counsel. In fact, he co-authored the Starr Report on President Clintons involvement with Monica Lewinsky. The report was ultimately criticized for using explicit descriptions of sexual acts to paper over shaky allegations. And its been well documented that the Office of Independent Counsel routinely and blatantly leaked confidential as well as false information to the press in an effort to weaken Mr. Clintons presidency.
During the Clinton administration Mr. Kavanaugh demanded full access to confidential communications between deceased Deputy White House Counsel Vince Foster and his attorney. But in a striking 6-3 Supreme Court decision, the court ruled that attorney-client privilege exists even after the death of the client. In another instance, he asserted that a president couldnt claim attorney-client privileges with White House attorneys. And in another case he maintained that Secret Service Agents should be required to testify about personal information related to the presidents they protect, despite a Secret Service warning that this would make it more difficult to protect a president in the future.
By contrast, after joining the Bush administration Mr. Kavanaugh crafted an executive order that gutted the Presidential Records Act. This act, passed in the aftermath of Watergate, prohibited most presidential records from being destroyed and required them to be made public 12 years after a president left office. But by creating this executive order, a president can now prevent records from being released for any reason, in perpetuity. Dr. Hugh Graham, a prominent presidential historian, characterized this order as a victory for secrecy in government so total that it would make Nixon jealous in his grave.
For many years, the public has had access to documents concerning presidential pardons several years after they were granted. But in the Bush administration, Mr. Kavanaugh argued that a president could exert executive privilege over pardon records. As a result, the administration is no longer releasing these documents. Interestingly enough, Mr. Bush has granted fewer pardons than any other president in the last 156 years. So you wouldnt think that pardons are all that important to him. Perhaps hes simply preparing for pardons hell grant to administration officials when he leaves office.
President Bush re-nominated Mr. Kavanaugh in the belief that the Senate would be more lenient this time. But the Senate would do well to reject his nomination again. Serving on the D.C. Court of Appeals requires experience, sound judgment, and judicial integrity. By all appearances, he lacks all three.