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Another Unsavory Judicial Nomination

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Message Gene C. Gerard
In the wake of the successful confirmation of Samuel Alito to the Supreme Court, President Bush has re-nominated Brent Kavanaugh to the U.S. Court of Appeals for the District of Columbia. Democrats originally rejected his nomination in 2003, and for good reasons. He has less legal experience than all but one previous nominee in the last 35 years. And his judicial integrity and ethics are questionable at best.

In response to his nomination in 2003 Mr. Kavanaugh completed a questionnaire for the Senate that asked him to cite the number of cases he’s tried before a court. He replied, “none.” That’s because he’s never set foot in a courtroom after graduating from law school in 1990. Wouldn’t 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 haven’t have typically been notable legal scholars. Mr. Kavanaugh’s 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 Bush’s 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 Clinton’s involvement with Monica Lewinsky. The report was ultimately criticized for “using explicit descriptions of sexual acts to paper over shaky allegations.” And it’s 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. Clinton’s presidency.

What’s most disturbing about Mr. Kavanaugh is that his legal opinions are so susceptible to the prevailing political winds. During the Clinton administration he fought for unprecedented access to presidential records. But in the Bush administration he has worked aggressively to keep presidential actions and records secret from Congress and the public. He’s only too eager to twist and manipulate legal opinions and philosophies to serve partisan political interests. To borrow a phrase from Mr. Bush’s 2004 re-election campaign, he’s a “flip flopper.”

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 couldn’t 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.”

Mr. Kavanaugh also played a key role in keeping records from Vice President Cheney’s energy task force from being made public. Leading energy industry executives and lobbyists participated in the task force meetings, and journalists requested the records to determine just how much these individuals influenced the administration’s energy policy. But Mr. Kavanaugh asserted that the records should be kept secret in order to maintain “the ability of the president and vice president to receive unvarnished advice.” This is a far cry from his position only three years earlier that a president couldn’t even have confidential conversations with White House attorneys.

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 wouldn’t think that pardons are all that important to him. Perhaps he’s simply preparing for pardons he’ll 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.
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_______________________________________________ Gene C. Gerard has taught history, religion, and ethics for 14 years at several colleges in the Southwest and is a contributing author to the book "Home Front Heroes: Americans during Wartime," by (more...)
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