We're clear on what I want
from you on the bench, right
(Kavanaugh
looks tearful or totally perplexed)
Interesting analysis (from the NY Times) of Supreme Court
Justice nominee Judge Brett Kavanaugh’s days serving in the White House under
Geo. W. Bush – several key issues caught my attention for further look see and
analysis – my emphasis added as
indicated below:
First Issue: Bush’s aggressive use of
presidential signing statements became a contentious issue toward the end of
Judge Kavanaugh’s tenure as staff secretary from 2003 to 2006.
By then,
Bush had already challenged more provisions of new laws than all previous
presidents combined, but those claims attracted little attention until he
asserted that he could bypass a December 2005 law in which Congress, over his objections,
had tightened restrictions against torture.
(I note: Bush wanted cancel or override the
Congressional ban on torture to continue the program at Gitmo with another EO
or signing statement. My Gitmo detainee files are here for detailed background on the whole torture issue).
Emails disclosed last year during the confirmation of Justice
Neil M. Gorsuch, another Bush administration veteran, revealed that there had
been a high-level internal fight about what the signing statement on the
torture ban should say.
But those emails did not show how Judge Kavanaugh
eventually presented the matter to Mr. Bush.
Pressed at his 2006 hearing to express an opinion
about whether the president could legally override the torture ban, Judge
Kavanaugh gave an ambiguous answer.
He said the president must “follow the Constitution
and the laws passed by the Congress” — without saying whether he thought, in
that instance, the statute conflicted with the Constitution.
Mr. Grassley
has said he does want to see Judge Kavanaugh’s papers from his time as an
associate White House counsel from 2001 to 2003; it is not clear whether any of
those address signing statements. Republicans also point out that the Senate
has access to years of his judicial opinions, published writings, speeches, and
other such materials.
Since he became a judge, his writings
show, he has spoken more extensively about two major issues raised by Mr.
Bush’s use of signing statements.
The first issue was the legitimacy of
a sweeping theory of executive power that Mr. Bush’s legal team often advanced: that the president, as commander in
chief, can override statutes in which Congress has regulated the executive
branch’s conduct in national security matters.
In a
favorable review last year of a book written by another judge, David J. Barron,
Judge Kavanaugh said “it seems settled” that Congress cannot interfere with
presidents’ power “to supervise, direct and remove subordinate officers in the
national security realm” and “to direct specific troop movements.”
But beyond
those issues, he wrote, Judge Barron “advances a forceful originalist and historical-practice
case that presidents must and do comply with congressional regulation of
wartime activities such as surveillance, detention, interrogation and the use
of military commissions.”
Still, Judge Kavanaugh pointed out a
catch: It is often
“not easy” to tell whether an action should be analyzed as defying a law,
because presidents often argue that statutes should be interpreted as blessing
their policies.
Indeed,
during the Bush administration’s internal debate over the December 2005 signing
statement on the torture ban, some officials had argued for declaring that the
new law was best read as essentially codifying their existing interrogation
policies, rather than suggesting any plans to defy Congress.
Earlier that year,
the Justice Department had secretly concluded, in a memo that was later
rescinded, that interrogation tactics like waterboarding and sleep deprivation
did not violate the humane-treatment standard that Congress had included in the
new law.
And even when a president unambiguously defies a law,
he noted, sometimes that is legal. He cited a 2015 ruling in which the Supreme
Court upheld presidents’ constitutional authority to disregard a statute about
passports and Israel.
The second issue that Kavanaugh
addressed was raised in the signing statements debate: whether it is legitimate for
presidents to sign bills but effectively nullify some provisions by deeming
them unconstitutional, or whether the Constitution gives presidents only the
choice of signing a bill — and then obeying all of it — or vetoing it.
In 2006,
the American Bar Association took the latter view, arguing that signing
statements were “contrary to the rule of law and our constitutional system of
separation of powers.” But former executive branch lawyers of both parties have
rejected that position as going too far.
In a 2015 lecture to law students, Judge Kavanaugh
made clear that he shared the view that presidents may decline to obey statutes
if they have a “reasonable” constitutional objection — unless a court issues a
final order telling them otherwise.
That said, he warned: “It’s about the most controversial
thing a president can do.” His advice to executive branch officials considering
making such a claim was “you’d better know what you’re doing legally, you’d better
have a thick skin politically, and you’d better hope you don’t have a Senate
confirmation process in the near future.”
The key to his hearing will likely be the documents
that the Judiciary Committee receives pertaining to Kavanaugh – and that is expected
to be the largest tranche of papers ever produced on any judicial nominee.
Those papers could help clarify the 2002 meeting that the Post and
NPR reported, as well as offer more indications of what Kavanaugh knew.
Kavanaugh will likely tell senators that even if he
consulted about Kennedy, he was not directly involved in crafting detainee
policy. Democrats are likely to argue that Kavanaugh misled them, in that he
suggested he wasn’t aware of the policy discussions at all.
Unhelpfully for
Kavanaugh, the former Bush aide Karl
Rove, who strongly supports the judge’s nomination, told Neil Cavuto that as staff
secretary, Kavanaugh was involved in almost all policy issues.
Assuming Sens. Durbin
and Leahy press Kavanaugh, he’ll be only the latest public official to come
under scrutiny for his role during the period of torture. But while plenty of
officials have faced tough questions, few of them have actually seen their
careers halted. William J. Haynes, a
judicial nominee about whom Durbin asked Kavanaugh back in 2006, is a rare case
of someone who was blocked.
Jay Bybee remains on the federal bench, and John Yoo, one of the authors (with
Bybee) of the infamous “Torture Memos,” returned to his prestigious teaching
post at UC Berkeley law school.
John Brennan, who served in the Bush CIA, had
hoped to have been the CIA director during the Obama administration, but
initially withdrew from the running over liberal criticism of his role in
torture.
In the end, that was
just a delay: He was
nominated and confirmed to run the CIA during Obama’s second term.
During her Trump confirmation hearings this spring, Gina Haspel, the current CIA director,
faced tough questions over her administration of a CIA “black site” where
torture occurred during the Bush era. In the end, however, she was confirmed,
too, by a 54–45 vote.
If those cases offer any predictions, Kavanaugh will
face some withering questions during his Senate hearings, but he still has a
good chance at jumping from the Senate hot seat to the Supreme Court bench.
Stay tuned for sure. A big right is probably going to
take place over this nomination – VP Pence may have to be another the
tie-breaking vote as in the past for Betsy
DeVos as Education Secretary; Sam Brownback
for Amb-at-Large; Russell Vought for
top OBM slot; and three pieces of legislation.
Thanks for stopping by.
