Last year, when Brett Kavanaugh, a former White House lawyer, was sworn-in as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, President Bush said he chose him because of “the strength of his character.” That character has now come into serious question.
Sen. Dick Durbin (D-IL), a member of the Senate Judiciary Committee, wrote a letter to Kavanaugh yesterday, accusing him of misleading the Senate about his role in formulating detainee policies as a lawyer in the Bush Administration.
In [the Washington Post] article, you are reported to have participated in a “heated” White House meeting in 2002 about whether U.S. citizens who had been declared enemy combatants should be given access to lawyers. The information in this article was confirmed today by a report on National Public Radio.
These reports appear to contradict sworn testimony you gave to the Senate Judiciary Committee on May 9, 2006 at your nomination hearing. [...]
I asked: “What did you know about Mr. Haynes’s role in crafting the Adminstration’s detention and interrogation policies?”
You testified: “Senator, I did not — I was not involved and am not involved in the questions about the rules governing detention of combatants — and so I do not have the involvement with that.”
In the Post article, which is part of a series on Vice President Dick Cheney, Kavanaugh is said to have argued that Supreme Court Justice Anthony Kennedy, for whom he had clerked, “would never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up without giving him an opportunity to be represented and heard.”
A spokesman for Kavanaugh claimed his testimony was “accurate.”
Judge Kavanaugh’s confirmation testimony was accurate, and Judge Kavanaugh will continue to carefully address recusal issues based on the law and the facts of each case.
Durbin requested that Kavanaugh “provide the Senate Judiciary Committee with an explanation for this apparent contradiction” as well as recuse himself from “all pending and subsequent cases involving detainees and enemy combatants.”
UPDATE: Jonathan Adler at National Review’s Bench Memos blog posts on the letter too, which is noteworthy for his lack of attempt to either defend Kavanaugh or dispel Durbin’s accusation.