Bench Memos

Law & the Courts

Brett Kavanaugh and the Pickering Nomination: The Real Story

In an article that has been thoroughly discredited by NRO colleague, David French, the New York Times reported yesterday about Kavanaugh’s involvement in the failed nomination of District Judge Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit. At the time of Pickering’s nomination, Kavanaugh was serving as an Associate White House Counsel in the George W. Bush administration.  Pickering’s beleaguered nomination was eventually filibustered by Senate Democrats.

Now Senate Minority Leader Chuck Schumer has launched the indefensible attack that Kavanaugh misled the Senate Judiciary Committee about his role in the Pickering nomination during Kavanaugh’s 2006 hearing before the Senate Judiciary Committee to be a judge on the D.C. Circuit.

In his latest “gotcha” accusation, Schumer alleges that “Kavanaugh downplayed his role in shepherding the Pickering nomination through the Senate” because the released White House documents show that Kavanaugh “led critical aspects” of the nomination.

Let’s look at exactly what Kavanaugh said in 2006 about his involvement in the Pickering nomination.

During the hearing, Senator Russ Feingold asked Kavanaugh whether he knew that Judge Pickering had planned to solicit letters in support of his nomination to the Fifth Circuit from litigants with pending cases in the district court.  (This is a practice that many considered to be contrary to the canons of judicial ethics, and Kavanaugh expressed agreement with this view during his nomination hearing.)

In response to Feingold’s question about whether Kavanaugh knew about Pickering’s plan to solicit support from current litigants, Kavanaugh told Senator Feingold, “No.”  Kavanaugh continued, “This was not one of the judicial nominees that I was primarily handling.”

Additionally, in his responses to written questions for the record following the hearing, Kavanaugh testified that he had “participated in discussions and meetings concerning all of the president’s judicial nominees” (emphasis added).

So what exactly are these “critical aspects” of the Pickering nomination that Kavanaugh allegedly “led” based on the released White House emails?  Here is what the New York Times reports:

Among other things, the emails show that Judge Kavanaugh helped work on a binder of documents about the judge, Charles W. Pickering Sr., to give to Senate staff members; drafted a letter to a senator about him; and handled a draft opinion article supporting his confirmation intended for publication under the name of Alberto Gonzales, the White House counsel whose staff called him “Judge.”

Does working on a binder of documents sound like “shepherding a nomination”?  Not exactly.

On the contrary, the released White House emails undergird what Kavanaugh wrote in his written responses in the questions for the record:  that he “participated in discussions and meetings concerning all of the president’s nominees.”  Creating binders of documents, and drafting letters and op-eds are exactly the sorts of activities that fall into the umbrella description that Kavanaugh provided to the Committee.

In a given administration, the White House nominates hundreds of judicial nominees, and principal responsibility for these hundreds of nominees is typically divided between the various associates (deputies) who report to the White House Counsel.  In his response to Senator Feingold, Kavanaugh testified that he was not primarily responsible for the Pickering nomination.  Did Kavanaugh do some work in connection with the Pickering nomination?  Yes. Did that necessarily make Kavanaugh “primarily responsible” for the nomination?  Of course not.

In his NRO piece, French describes a conversation he had with Pickering after the New York Times piece was published about his interactions with Kavanaugh at the time of the nomination:

[Pickering] told me that he hadn’t even heard of Brett Kavanaugh until Kavanaugh was nominated for the D.C. Circuit.  [Pickering] met with various lawyers at the White House, but he doesn’t remember meeting or interacting with Kavanaugh even once.

One would assume that Pickering would have met or interacted with the White House lawyer responsible for “shepherding” his Fifth Circuit nomination.  (And shame on the New York Times for not having the journalistic integrity to bother to reach out to Pickering for comment.)

Schumer’s claim that there are “serious questions about whether Kavanaugh misled the Senate” is based on a gross misrepresentation of both the released White House emails and Kavanaugh’s 2006 testimony. If anything, the released White House emails entirely support Kavanaugh’s 2006 description to the Committee about his role in the Pickering nomination, and further bolster Kavanaugh’s credibility as a nominee to the Supreme Court.

Sadly, I don’t believe this will be the last time that I have to rebut a scurrilous attack against Brett Kavanaugh before he is confirmed, as this seems to be the only remaining strategy for Senate Democrats who are faced with an extraordinarily well-qualified nominee with an extensive judicial record.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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