Kavanaugh Navigates Obstacle Course to D.C. Circuit
A three-year odyssey
According to the Federal Judicial Center’s biographical database, President George W. Bush nominated Brett Kavanaugh to a seat on the D.C. Circuit on January 25, 2006, and the Senate confirmed his nomination on May 26, 2006. But what might seem to have been a five-month sprint was in fact a three-year odyssey.
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President Bush initially nominated Brett Kavanaugh to a D.C. Circuit seat on July 25, 2003, the same day on which he nominated California supreme court justice Janice Rogers Brown to another seat on that court. These nominations came right in the midst of Senate Democrats’ launch of the filibuster against Miguel Estrada, whom Bush had first nominated to the D.C. Circuit in May 2001. The seventh and last cloture vote on Estrada’s nomination failed on July 30, 2003. Meanwhile, Democrats were already expanding their filibuster threat to other victims.
If you were someone whom Democrats were likely to target, this was not a propitious time to be nominated. Kavanaugh fit that description, as did Brown (Brown for being a boldly libertarian African American, as I discussed in this post). Senator Hillary Clinton and her many allies hated Kavanaugh for his role as associate independent counsel to Ken Starr during the Whitewater investigation of Bill Clinton—the investigation that exposed Clinton’s sordid relationship with Monica Lewinsky and his perjury to try to conceal it. Kavanaugh’s service as a senior staffer to George W. Bush—associate White House counsel from the outset in 2001, and White House staff secretary beginning in June 2003—gave them additional reason to oppose him.
Even worse from Democrats’ perspective: Kavanaugh was young—only 38—and he had superb credentials—Yale law school, Supreme Court law clerk, partner at major law firm. The American Bar Association judicial-evaluations committee awarded him its highest rating of Well Qualified. All of this meant that Kavanaugh might could well be a leading contender for a Supreme Court seat at some point over the next fifteen years or so.
In short, there was little doubt that Democrats would filibuster Kavanaugh’s nomination.
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Sometimes it’s best to let a path clear before trying to advance.
Janice Rogers Brown had her confirmation hearing in October 2003. Her nomination was promptly reported to the full Senate. And in mid-November Democrats defeated the cloture vote on her nomination, thus suspending her in limbo.
Kavanaugh was in no rush. In his new role as White House staff secretary, managing the flow of paperwork to the president for decision-making, he had constant access to Bush. (I very much appreciated Kavanaugh’s access to Bush in March 2004 when I, then working in the Justice Department, wanted to make sure that Bush was aware of an unfolding crisis.) Kavanaugh did not have his confirmation hearing until the end of April 2004. Republicans on the Judiciary Committee determined that it made no sense to push for a Senate floor vote that year because they knew that Kavanaugh’s nomination would be filibustered. So the Senate returned his nomination to the White House at the end of its 2004 session.
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Bush renominated Kavanaugh and Brown in 2005. As we have seen, the Gang of 14 Agreement specifically guaranteed that Brown would receive a Senate floor vote, and the Senate confirmed her nomination on June 8, 2005.
The Gang of 14 Agreement’s effect on Kavanaugh’s nomination was less clear. On the one hand, the signatories to the agreement committed to oppose cloture on a judicial nomination “only under extraordinary circumstances.” It was difficult to see how Kavanaugh’s nomination would trigger that threshold. The agreement’s signatories had agreed that William Pryor’s nomination to the Eleventh Circuit didn’t justify a filibuster, and Pryor’s blunt testimony (e.g., Roe v. Wade was a constitutional “abomination” that had “led to the slaughter of millions of innocent unborn children”) and his acceptance of a recess appointment would seem to have made him much more objectionable than Kavanaugh.
On the other hand, liberal Democrats who weren’t signatories to the agreement claimed that an “unwritten part of the pact” was that Kavanaugh “would not be confirmed.”
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Another obstacle suddenly arose for Kavanaugh. Kavanaugh’s nomination was teed up in the Judiciary Committee to be favorably reported to the Senate floor. But on June 13, 2005—a mere five days after Brown’s confirmation—I broke the news in National Review Online’s Bench Memos blog that the Senate Judiciary Committee wouldn’t take any further action on Kavanaugh’s nomination until another vacancy arose on the D.C. Circuit.
The problem here was the longstanding controversy over the D.C. Circuit’s twelfth seat. A senior Republican on the Judiciary Committee, Charles Grassley, had objected for the past decade, with substantial evidence to back him up, that the D.C. Circuit was underworked compared to other federal courts of appeals and didn’t need all twelve of the seats it had. Grassley had introduced a bill as far back as 1996 to abolish the D.C. Circuit’s twelfth seat. He had offered the same bill in 2003, and he would do so again in November 2005—in both instances co-sponsored by Jon Kyl, another senior Republican on the committee.
Janice Rogers Brown had just filled the tenth seat on the D.C. Circuit, and Thomas Griffith was confirmed on June 14 to the eleventh seat. Grassley wasn’t going to allow Kavanaugh to fill the twelfth seat.
This obstacle disappeared as quickly as it had arisen. D.C. Circuit judge Harry Edwards promptly announced that he would take senior status effective November 1, 2005. Edwards, a Carter appointee, could have waited until November 1 and just have announced his decision then. But he had earned a reputation for fairness and decency during his tenure as D.C. Circuit chief judge—winning the admiration of, among others, the very conservative Laurence Silberman, whose seat Kavanaugh had been nominated to fill—and he would have seen no point in gaming the process for partisan advantage.
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But much more momentous events—the two Supreme Court vacancies that arose and the nominations of John Roberts, Harriet Miers, and Samuel Alito that George W. Bush made to fill them—would occupy Kavanaugh’s attention and shunt his nomination aside for the remainder of 2005.
When the path ahead would finally clear following Alito’s confirmation at the end of January 2006, Kavanaugh would discover that Hillary Clinton’s allies had laid yet another obstacle to try to trip him up.