Editorial Law and Policy

Sex, Lies, and Nominees: Brett Kavanaugh Is Right Up Trump’s Alley

Jodi Jacobson

There are a few things about Trump Supreme Court nominee Brett Kavanaugh other than how he might rule that you might want to know.

Brett Kavanaugh, the 53-year-old U.S. Court of Appeals judge nominated by President Trump to fill the U.S.Supreme Court seat recently vacated by the retirement of Justice Anthony Kennedy, is an interesting character. In his “acceptance speech,” he portrayed himself as a humble and wholesome son, husband, father, and “Coach K.”

But as more is reported on Kavanaugh’s selection, the story gets less wholesome and more worrisome.

We’ve reported about Kavanaugh’s nomination and his positions on Roe and the Affordable Care Act, among other things. Kavanaugh is being described as a long-time Washington insider; now it turns out his nomination might have been an “inside job” so to speak. Here are some things about Kavanaugh you may want to know.

New reporting suggests that Justice Kennedy may have negotiated his replacement during a time when critical cases, such as the Muslim Ban, were under review. During the 2016 election, Trump touted a list of conservative judges, all with a stamp of approval from the Federalist Society, to which he claimed he would turn in choosing Supreme Court justices. It’s clear that control of the Supreme Court has been a key motivating factor for some voters to “look the other way” on Trump’s behavior and incompetence, so this list was a big selling point. Kavanaugh was not on this original list. He was added only last November. Politico reports that Trump focused on Kavanaugh after meeting with Kennedy, raising the question of a quid pro quo, though other reporting has Kavanaugh in the picture as early as last spring.

In June, the New York Times reported on the long campaign by the White House to get Kennedy to retire. When asked, White House spokesperson Raj Shah did not deny reports that a secret “deal” had been made between Trump and Kennedy. This raises the question of when such conversations started and what was on the table, especially given key decisions before the Court, and the fact that, as the Times also has reported, Kennedy’s son Justin was the global head of real estate capital markets at Deutsche Bank and “worked closely with Mr. Trump when he was a real estate developer, according to two people with knowledge of his role.” Deutsche Bank is known for lending Trump money when virtually no other bank would. The bank’s records have been subpoenaed by special prosecutor Robert Mueller.

In an email exchange, Jeff Hauser, the director of the Revolving Door Project, told me:

Yesterday’s initial NBC News report that Kennedy & Trump negotiated for the seat while Kennedy was deciding on, e.g., the #MuslimBan, was enormously troubling. NBC’s initial report was pulled back partially. However, the New York Times, Politico, and others have also reported that Trump was trying to procure Kennedy’s resignation for a long time, and that Kavanaugh was on a list of preferred replacements Kennedy gave Trump.
The extent of bargaining that did or didn’t occur between the White House and Supreme Court doesn’t merely call out for much-needed additional journalism, but it warrants congressional hearings. On his last term on the bench, Kennedy voted much further right than normal–he was never anything but a conservative, but his failure to cast a *single* vote on a 5-4 that went with the moderates rather than the conservatives was  conspicuously unusual.
Presidents and Justices have been known to talk in the past — although it is frowned upon, it is not illegal — but deal-making is very different than even a Justice offering a President policy advice. We need a congressional investigation to make sure that there was no sort of negotiations between Kennedy and Trump while, e.g., Kennedy was considering his decisive vote on the president’s signature initiative (#MuslimBan), a decision ultimately based on whether we know for sure that Trump’s public bigotry was the source of his bigoted policy.

Kavanaugh’s views on executive power and his selection call into question his judicial independence. As Caroline Fredrickson and Norm Eisen wrote in the New York Times, “In a 2009 law review article, Judge Kavanaugh argued that a sitting president should be able to defer civil suits and criminal prosecutions until after he leaves office and should be excused from having to answer depositions or questions during his term. He went so far as to advocate that Congress ‘consider a law exempting a president—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.'”

“It is hard to imagine,” they continue, “that these extreme views weren’t part of Judge Kavanaugh’s appeal to President Trump, a man who is a defendant in several civil suits and the subject of at least one criminal investigation. According to media reports, the White House has looked at the judge’s views on indicting a sitting president.” They conclude: “[T]he logic employed in Judge Kavanaugh’s opinions could easily be extended to argue that the president should enjoy the power to control the course of all criminal investigations — including those into his own alleged misconduct.” It’s inconceivable this was not part of the calculation of his selection.

Adam Bonin, an election law expert, had this to say:

He “may have a Jim Jordan problem.” Karoli Kuns noted that Kavanaugh clerked for Judge Alex Kozinski, who retired abruptly in December 2017after numerous allegations that he had sexually harassed his female law clerks came to light. Reports indicate that Kozinski’s behavior was widely known. It seems curious to think that Kavanaugh, who screened clerks for Kozinski, would not have known or heard about the sexual harassment. Or maybe he just considered it “locker room talk?”

He appeared to have a prurient interest in the Monica Lewinsky affair. If Kavanaugh missed Kozinski’s behavior, he certainly didn’t want to miss any details about Bill Clinton’s affair while he worked with then-independent counsel Kenneth Starr. Vox‘s Dylan Matthews explained: “In his history of the investigation, The Death of American Virtue: Clinton vs. Starr, Duquesne University’s Ken Gormley notes that Kavanaugh, ‘considered one of Starr’s intellectual heavy-lifters, pushed hardest to confront Clinton with some of the dirtiest facts linked to his sexual indiscretions with Lewinsky.'”

He apparently has different standards for Trump’s sexual escapades than he did for Clinton’s: Matthews quoted these paragraphs from Gormley’s book, from a memo written by Kavanaugh:

[T]he President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle. He has committed perjury (at least) in the [Paula] Jones case. … He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush.

Kavanaugh listed ten sample questions, however explicit and unsavory, that he believed Starr and his questioners should ask. They included the following:

…If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?

If Monica Lewinsky says that on several occasions you had her give [you] oral sex, made her stop, and then ejaculated into the sink in the bathroom off the Oval Office, would she be lying?

If Monica Lewinsky says that you masturbated into a trashcan in your secretary’s office, would she [be] lying?

I’m left wondering what he thinks about Trump, considering that as of the end of March, 19 women had come forward claiming to have been sexually harassed by or have had consensual affairs with Trump. I am guessing this did not come up during the “meet and greet” with Trump unless … you know … locker room talk. Maybe that and his apparent willingness to kowtow to a depraved president are indicators that we shouldn’t throw the term “integrity” around too quickly.

He may have lied during his appeals court confirmation hearings in 2006. According to a July 4, 2007 New York Times report, Sen. Patrick J. Leahy (D-VT), who was then the chairperson of the Judiciary Committee, and committee member Sen. Richard J. Durbin (D-IL), “questioned the forthrightness of the judge, Brett M. Kavanaugh, of the United States Court of Appeals for the District of Columbia Circuit.” When asked by Durbin about his role in the Bush administration’s detention and interrogation policies, Kavanaugh replied: “Senator, I was not involved and am not involved in the questions about the rules governing detention of combatants and so I do not have any involvement in that.” That statement contradicted news reports by both NPR and The Washington Post, according to the Times, which indicated that Kavanaugh had been involved in those decisions.

Leahy still has questions as to whether Kavanaugh was truthful:

In his memoir, President George W. Bush credits Kavanaugh with helping him choose Justice John Roberts for the Supreme Court. Bush also wrote that Kavanaugh thought highly of Justice Samuel Alito, so in addition to other analyses, these are likely indicators of Kavanaugh’s leanings.

So if you like your Supreme Court justices hostile to fundamental human rights, to environmental and worker protections, to voting rights and workers’ rights, with a side of misogyny, and possibly involved in a plan crafted to protect a president under investigation—Kavanaugh might be your man.

He sounds just like he’s right up Trump’s alley.

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