Republican efforts to keep much of Supreme Court nominee Brett Kavanaugh’s record secret in the lead up to Kavanaugh’s confirmation hearing placed the nominee in an terrible position this past week, often making him appear evasive, unprepared, or even outright deceptive. As law professor Rick Hasen noted on Twitter,
So if the Democrats' theme for the Gorsuch hearing was his arrogance, the theme for the Kavanaugh hearing is shaping up to be his lying.
— Rick Hasen (@rickhasen) September 6, 2018
Neil Gorsuch, who occupies a seat on the Supreme Court that Republicans held open for a year until Donald Trump could fill it, is arrogant. He is arrogant in a profound, personality-defining way that pervades his conduct on the bench and even sometimes enrages his conservative colleagues. It is less clear, however, whether Judge Kavanaugh is an outright liar or merely a man who was caught badly off guard during the most important job interview of his life.
Republicans did their own Supreme Court nominee a disservice by trying to keep so much of his record out of the public eye. Their secrecy meant that Kavanaugh had to respond to attacks on the fly, often while trying to remember what he meant in an email written 15 years ago, and without any warning about which attacks were coming.
Kavanaugh’s stilted performance at his hearing should be a warning to future nominees and their supporters. Sometimes, transparency is the best way to protect the nominee.
Advance warning
Compare the GOP’s treatment of Kavanaugh’s records to the way confirmation fights ordinarily play out. Like Chief Justice John Roberts and Justice Elena Kagan, Kavanaugh worked in the White House before he became a judge. After Roberts and Kagan were nominated, the National Archives turned over piles of documents related to their work in the Reagan and Clinton administrations. Some of these documents painted the nominees in a bad light, such as a series of memos revealing that Roberts unsuccessfully tried to neuter much of the Voting Rights Act during his time in the Justice Department.
The Roberts and Kagan documents were available online days or weeks before their hearings, which meant that armies of lawyers and political operatives combed through them looking for ways to attack the nominee. Most of these attacks made their way into news articles well before the nominee’s confirmation hearing.
But the Bush and Obama White House’s transparency during the Roberts and Kagan confirmations ended up redounding to the benefit of their respective nominees. It meant that, by the time Roberts and Kagan appeared before the Senate Judiciary Committee, they already had a pretty good idea what sort of questions they would face. Roberts and Kagan had ample time to revisit the things they’d written years or decades prior, and offer their Senate interlocutors truthful answers that still painted their past work in the best possible light.
For a brief moment, it seemed possible the Kavanaugh hearing would play out more or less the same way. Senate Judiciary Chair Chuck Grassley (R-IA) sought a raft of documents from the National Archives, and asked that they be turned over to senators by August 15.
But Kavanaugh also came of age in a very different era than Roberts and Kagan. Roberts served in the Reagan administration, when most intra-office communication was conducted by phone calls or internal memos. Email existed in the mid-to-late 90s, when Kagan served in the Clinton White House, but it was just beginning to become the universal method of conducting business that was by the time Kavanaugh joined the Bush administration.
The result was that Kavanaugh’s documents totaled an estimated 900,000 pages or more. The National Archives warned Grassley that it would not be able to produce all of these documents until the end of October. The Judiciary Committee tried to fill in some of the gaps by seeking documents from the Bush presidential library, but that meant that the document production would be overseen by a partisan operative closely aligned with former President George W. Bush, and not by a more objective archivist. Senate Republicans made matters even worse by designating many of the documents “COMMITTEE CONFIDENTIAL,” meaning that they could only be viewed by senators in secret.
Bring it
It’s not hard to guess why Republicans decided to move forward with the hearing this week, despite the fact that only some of Kavanaugh’s record was available — and the most likely explanation isn’t secrecy. If the hearing were delayed until after the documents arrived in late October, Kavanaugh’s confirmation vote would have to wait until after this November’s election. That could potentially place lame duck Republicans in the awkward position of voting on a Republican Supreme Court nominee shortly after they lost control of the Senate.
It would have raised a cloud of illegitimacy over the Supreme Court’s Republican majority, and it would have done so while a similar cloud still looms over the Court thanks to the dubious circumstances that placed Gorsuch on its bench.
But the GOP’s unusual treatment of Kavanaugh’s documents meant that Judge Kavanaugh came into his confirmation hearing without adequate warning about how he would be questioned by Democrats. It also meant that specific documents trickled out over the course of the week, several of which created the impression that Kavanaugh was hiding something.
In one particularly dramatic moment, Sen. Cory Booker (D-NJ) announced he would release several “COMMITTEE CONFIDENTIAL” documents to the public. After Sen. John Cornyn (R-TX) read aloud a rule suggesting Booker could be expelled from the Senate for doing so, Booker responded “Bring it.” (It is, of course, worth noting that a Senate expulsion requires a two-thirds Senate majority.)
Had these documents been released in advance of the hearing, as they were for Roberts and Kagan, Kavanaugh could have prepared crisp, clear — and, most importantly, believable — explanation for his past actions.
Consider, for example, a 2001 email from Kavanaugh to former Justice Department official John Yoo. During his 2006 confirmation hearing for his current job, Judge Kavanaugh testified that he was unaware of a Bush era warrantless wiretapping program until the program was revealed to the public by the New York Times. In reality, Kavanaugh wrote an email to Yoo less than a week after the 9/11 attack, which asked about whether a program similar to the one Bush eventually authorized would be constitutional.
One possible explanation for this discrepancy is that Kavanaugh intentionally committed perjury in 2006 and deserves to be in federal prison. Another explanation is that Kavanaugh simply forgot that he’d written that email to Yoo — a brief email he wrote during what must have been an extraordinarily stressful time for everyone in the White House.
Had Kavanaugh known in advance that this email exists — and that it would become public during his confirmation process — he could have prepared an entirely plausible explanation for its existence. “Thank you senator for the question,” he could have replied. “I regret that my 2006 testimony was not entirely accurate. That was an unintentional error on my part. I wrote that email to John Yoo during an unusually stressful time and apologize that I did not recall writing it five years later.”
It would have been an entirely believable explanation. I would have believed him.
Instead, Kavanaugh gave a halting response when Sen. Patrick Leahy (D-VT) on Wednesday after Leahy asked him if he ever worked with Yoo “on the constitutional implications of any warrantless surveillance program.”
“I can’t rule that… right in the wake of September 11?” Kavanaugh replied. “It was all hands on deck on all fronts.” The Yoo email became public shortly thereafter.
Similarly, a series of “COMMITTEE CONFIDENTIAL” emails revealed that Kavanaugh received stolen information from a Republican Senate aide named Manny Miranda — Miranda hacked into Democratic records while he worked in the Senate and stole confidential communications regarding how Democrats planned to oppose several Bush judicial nominees. This prompted an embarrassing series of questions from Leahy to Kavanaugh about whether Kavanaugh knew that the information was stolen.
Again, had Kavanaugh known in advance that these questions were coming, he could have taken responsibility for not recognizing that he was receiving hacked information, apologized, and devised a plausible-sounding explanation for why he did not realize what Miranda was up to at the time. Instead, he was forced to construct an answer in real time to why he wasn’t bothered by an email with the subject line “spying” that began “I have a friend who is a mole for us on the left.”
My point is not to exonerate Kavanaugh. My personal view is that some of the attacks on Kavanaugh’s honesty are troubling, some are rather dubious, and others paint Kavanaugh as more of a weasel than a liar. Kavanaugh testified in 2006, for example, that Judge Charles Pickering, an appellate court nominee that Democrats opposed because of Pickering’s record on race, “was not one of the judicial nominees that I was primarily handling.” In reality, Kavanaugh did work on the Pickering nomination — though his statement that did not have primary responsibility for Pickering appears to be technically true.
Instead, my point is that transparency isn’t just a virtue for its own sake. Transparency often provides great benefits to the party that discloses information. Kavanaugh would have been better off if he’d not been ambushed in the middle of his confirmation hearing. And it was his own team’s fault that he did not know how he would be attacked in advance.