To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: October 17, 2018
Re: The Corrupt Process of Brett Kavanaugh’s Confirmation
It’s not yet late October—the time the National Archives said they’d have Brett Kavanaugh’s records from his time working for Kenneth Starr and for the White House counsel vetted and ready for senators to review. In a democracy governed by the rule of law, we would still be awaiting Kavanaugh’s committee hearing. The fact that he is already on the Court speaks volumes about the Republican Party’s success in undermining our democratic norms.
Every step of the nomination from start to finish was infected with a corruption so deep yet so open that most Americans in the era before Trump would have thought it impossible. But this is in many ways a different country than it was just three years ago. The president and Senate majority have shown that anything that advances their power is acceptable to them, no matter how corrupt.
As a result, the Supreme Court has been compromised. The legitimacy of any 5-4 ruling with Kavanaugh in the majority will always be questioned. Below is a listing of some of the corrupt actions taken by the GOP to achieve this dramatic advance in their assault against American democracy.
Private, pre-nomination vetting of his constitutional views
Kavanaugh was pre-vetted by individuals in the far-right Federalist Society and Heritage Foundation. They had known him for many years and were already deeply familiar with (and shared) his extreme legal beliefs long before he was added to Trump’s list. That’s what the Federalist Society is all about. They were given the power to make the choice because they knew he would rule “the right way” on the issues they care about.
Putting three years of highly relevant records off limits
Kavanaugh had two high-level jobs in the George W. Bush White House: He spent two years (2001-2003) in the White House Counsel’s office, then three years (2003-2006) as Staff Secretary. Grassley jettisoned the committee’s longtime practice of submitting a bipartisan records request on the committee’s behalf to the National Archives. Over the Democrats’ objections, he excluded all records from Kavanaugh’s years as Staff Secretary from the request, 60 percent of his total White House years. Kavanaugh himself had described this job as important, substantive, and directly relevant to his qualifications to be a judge. But Grassley successfully kept hidden records that likely would have shed light on Kavanaugh’s views on matters such as a constitutional amendment to prohibit marriage equality; the Bush administration’s “war on terror” spying, detention, and torture; and the firing of U.S. Attorneys for not pursuing bogus voter fraud cases.
Scheduling a hearing before the National Archives could supply records
A nominee’s records are vital to the committee’s examination of a nominee’s experience, qualifications, and approach to the law. Once they are provided, the confirmation hearing gives senators a chance to ask questions raised by those records. The National Archives informed Grassley that it would take until late October to identify and review even the limited set of documents he had requested. Grassley’s response? Over Democratic objections, he announced that the hearing would be held in early September.
Replacing National Archives employees with party loyalists for records production
Having created an artificial “need” to get the documents faster than the professional nonpartisan civil service employees tasked by law for this assignment could provide them, White House and Senate Republicans gave this necessarily-nonpartisan assignment to high-level GOP operatives instead. They were led by Bill Burck—Kavanaugh’s former deputy and lawyer to White House Counsel Don McGahn, former White House Chief of Staff Reince Priebus, and former White House Advisor Steve Bannon. While Archives personnel were carefully gathering and evaluating Kavanaugh’s records as contemplated by federal law, Burck set up a parallel—but very different—process, creating numerous problems. These included: (1) failure to produce an extensive number of documents based on dubious claims of executive privilege; (2) significant redaction of documents that were provided; and (3) the Republican activist team’s ability to select which documents senators and the public would be allowed to see, how much of those documents senators and the public would be permitted to see, and when the documents would be available for review. The Committee accepted this fraud over Democratic objections.
Withholding documents with a dubious claim of executive privilege: A few days before the hearing, committee members were told that President Trump was claiming executive privilege on over 100,000 pages, meaning senators could not see them. This was unprecedented: executive privilege had never before been invoked to block the release of presidential records to the Senate during a Supreme Court nomination. Adding insult to injury, there was not actually a formal invocation of executive privilege, which could have been subject to judicial review. Instead, records were simply blanked out and replaced with the phrase “constitutional privilege,” and there was no description of the withheld documents, as the law requires. Nevertheless, over Democratic objections, Grassley and his fellow Republicans prevented any committee action to address this problem.
Unexplained redaction of documents: In addition, an enormous number of the documents that were provided contained apparent alterations or omissions without explanation, alterations made possible only because Republicans made sure no objective party carried out the work.
Dumping thousands of records without adequate time to analyze them: Burck sent the carefully pre-screened files to Grassley, who made them public in enormous document dumps. As the scheduled hearing date approached, Democrats were repeatedly overwhelmed with a large batches of records and little time for review. In fact, hours before the hearing, Grassley released another 42,000 pages of documents.
Using “Committee Confidential” claim to keep damaging information from the public
Despite all of the above efforts to hide documents from Senators and the public, a number of documents that were sent to the Judiciary Committee revealed that Kavanaugh had misled the committee and even outright lied during his confirmation hearings for the D.C. Circuit in 2004 and 2006. For instance, numerous documents showed that—contrary to his testimony under oath in those hearings—Kavanaugh had knowingly trafficked in documents and information clearly stolen from committee Democrats by a high-level Republican staff member. Burck marked documents revealing past false testimony as “committee confidential,” meaning Democrats couldn’t share them with staff or the public, or ask Kavanaugh questions about them during the hearing. Grassley accepted the designation and only started releasing the documents when Democratic senators threatened to make them public on their own.
Attempting to silence Christine Blasey Ford and other women
When news reports came out after the hearing that Christine Blasey Ford alleged that Kavanaugh sexually assaulted her when they were in high school, committee Republicans initially did everything they could to prevent her from testifying at a public hearing They tried to have questioning done over the phone or in other ways that the public would not see her confidently identify Kavanaugh as her drunken assailant. They finally succumbed to public pressure and allowed her to present her testimony. But, over Democratic objections, Republicans refused to reopen the hearing to allow testimony of witnesses who could corroborate her claims and/or examine other credible allegations of sexual assault by Kavanaugh when he had been drinking heavily in high school and college.
Accepting obvious lies and evasions by Kavanaugh as the truth
After Blasey Ford’s testimony, Kavanaugh angrily played the victim. While she answered every question, he was evasive, frequently responding to questions with non-responsive statements and even challenges. He told obvious lies to make it seem that he did not drink heavily in high school and college, and that he behaved respectfully to women at all times. High school yearbook insinuations about his and his friends having sex with a girl at another school were nothing of the sort, he asserted;: instead, they were meant to show their respect for her, a claim she herself publicly rejected. He told the senators that commonly used sexual references were really not sexual references at all. Perhaps most galling, he told senators he had never been to a small get-together of the type that Blasey Ford described when just such an event was marked on his calendar for July 1, 1982, even including the people that Blasey Ford had named as being at the party. Committee Republicans acted as if Kavanaugh had fully exonerated himself.
Setting up an FBI investigation designed not to investigate
In order to keep one Republican senator from defecting and costing them the vote, committee Republicans agreed to an FBI investigation, purportedly to determine the credibility of the growing number of allegations against the nominee. But Trump and White House aides set the parameters of that investigation and ensured that it would fail. FBI agents did not interview Blasey Ford. They did not interview nearly two dozen people who had information that would have undercut Kavanaugh. They did not look into possible perjury by the nominee. The White House refused to release their instructions to the FBI All the FBI did was establish what we already knew: that there were allegations and that he denied them.
Releasing a prosecutor’s ridiculous “analysis” of Blasey Ford’s testimony
GOP committee members are all men, and they feared the optics of their appearing to attack the credibility of a woman recounting her sexual assault by Kavanaugh. So they flew in a woman to do the hatchet job, a sex crimes prosecutor named Rachel Mitchell, but she failed to undermine Blasey Ford’s credibility. Several days later, committee Republicans released a memo from Mitchell designed to look like a neutral legal analysis, but which transparently was not. She stated in the memo that she would never initiate a prosecution based on the evidence presented to her. But that wasn’t the question the Committee was supposed to be examining.
A Senate confirmation hearing is not a criminal trial. Kavanaugh had the burden of demonstrating his fitness to be elevated to a lifetime position on the nation’s most powerful court. Blasey Ford’s testimony, along with Kavanaugh’s lies and evasions, made clear that he could never meet that burden.
Nevertheless, Mitchell’s memo did what it was intended to: Despite the irrelevance of Mitchell’s “conclusion” and despite the fact that Mitchell had not done a scintilla of investigating that would be needed to reach this conclusion, it gave GOP senators cover to say they believed Kavanaugh. Even more galling, his fellow Republicans used it to viciously attack Dr. Ford for speaking out about her sexual assault. Most notoriously, President Trump mocked her at a campaign rally, a 180-degree turn from his original conclusion that her testimony was “very credible.”
Far right conservatives wanted Brett Kavanaugh on the Supreme Court, and they weren’t going to let anything stop them. Since Donald Trump has so effectively made facts irrelevant to politics, Republicans were able to set up a brazenly corrupt process to carry out their mission. Kavanaugh sits on the Supreme Court, but he does so without legitimacy, and survivors of sexual assault have been ignored, silenced, and shamed.
This makes America great? Hardly. Our democracy is weakened, not strengthened, by a corrupt process to confirm a partisan activist with a political agenda to the highest court in the land so that he can serve the interests of corporations, the wealthy, and the powerful at the expense of the rights and liberties of all Americans.