Want a reason to hold off on invoking the nuclear option, for a filibuster that Republicans might support? Here it is.
Even avid followers of the White House news briefings page might have missed this nomination announcement yesterday:
Brett M. Kavanaugh, of Maryland, to be United States Circuit Judge for the District of Columbia Circuit, vice Laurence H. Silberman, retired.
Wait! you say. I remember that name!
And you do: Brett Kavanaugh was first nominated for the DC Circuit on July 25, 2003. He had his hearing in 2004, but never was voted on by the Senate. While not explicitly mentioned in the Gang of 14 deal, many of us believed at the time that it was understood that his nomination would not advance further. We were wrong.
And what's so bad about Young Brett Kavanaugh? Let's hop in the wayback machine, via the Leadership Conference on Civil Rights:
The nomination of Brett Kavanaugh to the D.C. Circuit is part of the administration's effort to reward adherence to far right partisan ideology in its appointments to the federal bench. It is that ideology, and not legal excellence, that has driven this appointment. Kavanaugh has spent most of his relatively short legal career in highly partisan positions at the White House and Kenneth Starr's Office of Independent Counsel. Such a partisan advocate should not be confirmed for a lifetime position on the critically important D.C. Circuit.
In his position with the Bush administration's White House Counsel's office, one of Kavanaugh's primary responsibilities was serving on the administration's Judicial Selection Committee. Kavanaugh was a key player in the selection of most of President Bush's more controversial nominees, including Priscilla Owen, Dennis Shedd, Janice Rogers Brown, Miguel Estrada, and William Pryor. As reflected in their records, such nominees would seek to undermine the authority of Congress and weaken federal civil and human rights protections for persons of color, individuals with disabilities, women, workers, gays and lesbians, older Americans, and children. Kavanaugh's aggressive support for such nominees raises troubling questions about his own legal philosophy.
In his work for President Bush, Kavanaugh has also sought vigorously to expand presidential secrecy and promote what critics have called an "imperial presidency." This has included efforts to keep secret the records of Vice President Cheney's energy task force meetings and to eviscerate the Presidential Records Act concerning the records of former presidents. This is particularly problematic in light of the crucial role that the D.C. Circuit plays with respect to such questions.
In addition, Kavanaugh has vigorously defended even the most questionable conduct of former independent counsel Kenneth Starr. Kavanaugh himself was responsible for drafting the office's articles of impeachment against President Clinton, which even conservative commentators have criticized as "strain[ing] credulity" and based on "shaky allegations."
Kavanaugh's lack of legal experience also makes him an unqualified nominee for the D.C. Circuit. Of the ten most significant "litigated" matters he reported to the Senate Judiciary Committee, two consisted only of filing friend-of-the-court briefs and several others did not involve a court appearance. In two Supreme Court cases, including one in which Kavanaugh tried to limit the attorney-client privilege and another concerning government-endorsed school prayer, the Supreme Court squarely rejected Kavanaugh's arguments. Kavanaugh has less legal experience than virtually any Republican or Democratic D.C. Circuit judicial nominee in more than 30 years.
And via
People for the American Way:
Frequently described as a "Starr protégé," Kavanaugh began his stint in the Special Prosecutor's office by heading up the investigation into White House Deputy Counsel Vince Foster's suicide. As the Whitewater investigation appeared to be winding down, Kavanaugh returned to private practice for a brief period, but then re-joined Starr's office when the Monica Lewinsky scandal broke. Reflecting on why Kavanaugh chose to return to the Special Prosecutor's office at that point, one lawyer close to the case reportedly noted "[t]hat was slime time. He wanted to be there for the kill."
While Kavanaugh has taken pains to point out that he did not personally have a hand in authoring the even more controversial narrative section of the Starr Report, he has nonetheless fully defended Starr's conduct as Special Prosecutor. Rarely missing an opportunity to praise Starr, Kavanaugh authored a series of op-eds in the fall and summer of 1999 fiercely defending his mentor and his actions in the face of growing criticism. Kavanaugh wrote that "Starr [] conducted thorough and fair investigations . . .; exercised discretion where appropriate and firmness where necessary; . . . and displayed honor and determination in the face of relentless political attacks." Kavanaugh repeatedly lauded Starr as a man of "extraordinary accomplishment and integrity," even calling him "an American hero." In one instance, Kavanaugh sent a letter to the editor of the New York Times specifically to rebut an article that had mistakenly claimed Kavanaugh had found certain of Starr's tactics inappropriate. In another letter, Kavanaugh praised Starr's "honor" and insisted that "Judge Starr has consistently performed with the highest skill and integrity and [I] . . . feel sick about the abuse he has suffered."
Given his lack of experience and his ideological temperment, Kavanaugh is a nominee who we could defeat with a filibuster, for whom Republicans would not invoke the nuclear option.
But if we lose the nuclear option fight on Alito, then all it takes is 50 Republicans, plus Cheney, to give him a lifetime slot on the second most important court in America, one that would groom Ken Starr's protege for a future SCOTUS nomination.
Something to think about.