Opinion

Opinion | Caroline Fredrickson and Norman Eisen

Truth is a casualty in the Kavanaugh nomination

President Donald Trump’s Supreme Court nominee, Brett Kavanaugh responds to a question from Sen. Kamala Harris, D-Calif., as he testifies before the Senate Judiciary Committee on Capitol Hill in Washington, Thursday, Sept. 6, 2018, for the third day of his confirmation hearing to replace retired Justice Anthony Kennedy. (AP Photo/Alex Brandon)
AP Photo/Alex Brandon
Brett Kavanaugh testifies before the Senate Judiciary Committee on Sept. 6, 2018.

When President Trump nominated Judge Brett Kavanaugh to the Supreme Court, the record indicated striking similarities between the two men’s views on presidential powers and immunities. Last week’s Senate Judiciary Committee proceedings raised an additional area of common ground: a disdainful attitude toward the truth.

Adherence to high standards of integrity is an essential quality for any judge — indeed, it is expressly required of federal judges (though not Supreme Court justices) under the Judicial Code of Conduct. At a time when our nation’s chief executive officer has made thousands of false or misleading claims at a rate of eight per day, a commitment to truth is all the more important among high-level officials in the other government branches that serve as a check on the executive.

Even before the opening gavel on nomination hearings, there were signs that Kavanaugh may be willing to bend facts to suit the occasion. At the July 9 announcement of his nomination, he praised Trump’s purported “appreciation for the vital role of the American judiciary” — despite the president’s well-publicized vicious attacks on judges who ruled against him and in stark contrast to Justice Neil Gorsuch’s pre-confirmation comments that such incidents were “disheartening.” Kavanaugh further claimed that no “president has ever consulted more widely” to seek nomination input — an assertion virtually impossible to prove and inconsistent with the brevity of the vetting period.

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Evidence of his comfort level with dissembling mounted over the course of last week’s Senate hearings, where Kavanaugh’s testimony appeared at best misleading and inconsistent with documentary evidence and at worst untruthful. Whether any such testimony rises to the level of perjury is a subject of ongoing debate, but lack of candor doesn’t have to be criminal for it to be deeply disqualifying. At a minimum, the Senate must delay votes, planned in mere days, to meet its oversight duty to thoroughly evaluate Kavanaugh’s truthfulness.

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Numerous dark clouds created by the nominee’s testimony require clearing. Prominent among them is the unseemly specter of Kavanaugh, in his former position as White House associate counsel, receiving and apparently using information that Senate Republican staffers Manuel Miranda and Jason Lundell had accessed and stolen from Democratic staff computers between 2001 and 2003.

Kavanaugh first addressed the incident at an April 2004 Senate Judiciary Committee hearing on his D.C. Circuit Court nomination — one month after public announcement of an internal Senate review that confirmed the egregious breach and that prompted a vague public statement from his then-supervisor, White House counsel Alberto Gonzales, denying awareness of any “credible allegation of White House involvement in this matter.” At this hearing, Senator Orrin Hatch asked Kavanaugh directly: “Did Mr. Miranda ever share, reference, or provide you with any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee?” Kavanaugh replied, “No,” and further testified that information he received from Miranda reflected “nothing out of the ordinary of what Senate staffs would tell us or what we would hear from our Legislative Affairs folks.” Two years later, in a second nomination hearing, he reiterated he “did not know about” and “did not suspect” Miranda’s misconduct.

For last week’s Supreme Court nomination hearings, however, the Senate received just-disclosed White House documents showing that Kavanaugh, in his former service as a White House counsel, did in fact receive Democratic Judiciary Committee information that Democrats now confirm they did not intentionally share with Republican staff. These include an e-mail from Miranda to Kavanaugh with the subject line “highly confidential” describing advice provided to then-Senator Joe Biden by his Judiciary staff, another in which Miranda told Kavanaugh details about a letter Senator Patrick Leahy had received “in the strictest confidence.” It is impossible to square these and other similar documents with Kavanaugh’s 2004 testimony that information he received from Miranda contained “nothing out of the ordinary.”

Newly-disclosed documents also raise questions about his truthfulness in previously distancing himself from controversial Bush Administration matters. For example, while he testified in 2004 that William Pryor’s April 2003 nomination to the 11th Circuit Court of Appeals was not assigned to him and was “not one that [he] worked on personally,” White House e-mail records indicate he was part of the “Pryor Working Group” and that months before the nomination Kavanaugh suggested to colleagues that “we perhaps should think about recommending Pryor for CA11.” Indeed, the pattern of deception now appears to extend to Kavanaugh’s answers about multiple judicial nominations.

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And then there is the issue of his views on presidential immunity from prosecution. Judge Kavanaugh has written, “The Constitution itself seems to dictate . . . that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office.” He further wrote urging consideration of indicting President Clinton after he left office, “consistent with the Constitution, which appears to preclude indictment of a sitting president.” Participating in a Georgetown Law Journal panel, he also raised his hand indicating “yes” when the moderator asked, “How many of you believe, as a matter of law, that a sitting president cannot be indicted during the term of office?”

Yet when asked at the hearing for his views on the constitutionality of indicting a sitting president, he insisted that he had not taken a position on this issue. These protestations are difficult to reconcile with Kavanaugh’s written record — and are particularly troubling in light of his refusal to recuse from matters involving the personal legal jeopardy of the president despite precedent of nominees making recusal commitments at confirmation hearings on less compelling grounds.

These and other contradictions between Kavanaugh’s testimony and the documentary record have amplified the need to thoroughly examine Kavanaugh’s veracity before seating him on the Supreme Court. Remarkably, however, the Senate Judiciary Committee majority excluded nearly three entire years of Kavanaugh’s White House service from the scope of its records request, and failed to challenge an unorthodox claim, articulated by the private attorney managing archival document review, that “constitutional privilege” and other exemptions merit the withholding of 100,000-plus pages. The voluminous still-undisclosed Kavanaugh White House record would undoubtedly inform the public on inconsistencies that emerged from his testimony and illuminate his unvarnished, true views.

Officials who dissociate truth from reality are a profound internal threat to democracy. If politicians fail us, we are supposed to be able to turn to the judiciary as the last line of defense. The Kavanaugh nomination appears to be a breach in that wall.

Caroline Fredrickson is the president of the American Constitution Society and the author of the forthcoming book, “The Democracy Fix: How to Win the Fight for Fair Rules, Fair Courts, and Fair Elections.” Norman L. Eisen is a senior fellow at the Brookings Institution and the author of “The Last Palace: Europe’s Turbulent Century In Five Lives and One Legendary House.”