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Brett Kavanaugh’s Disqualifying Bad Faith

If the Senate ultimately rejects Brett Kavanaugh’s Supreme Court nomination, the reason—or the reason given—will be that he misled Congress, both last week, and during 2004 and 2006 confirmation hearings for his nomination to the DC Circuit Court of Appeals.

Republicans have concealed the vast majority of Kavanaugh’s public documents stemming from his service in the George W. Bush White House, but based just on this limited release we know he was not forthright with senators about a number of issues. The most egregious of Kavanaugh’s known deceptions concern his level of awareness of or participation in high-profile Bush-era legal and political scandals.

As an associate White House counsel, one of Kavanaugh’s main responsibilities was vetting and prepping Bush’s judicial nominees. In 2004, as a nominee himself, he suggested under oath that he was uninvolved in the selection and handling of a different Bush appellate court judge, William Pryor, and thus unaware Pryor had ethical problems, and had called Roe v. Wade an “abomination.” Last week, we learned Kavanaugh played an active role in Pryor’s selection and in advancing his nomination.

Kavanaugh also testified that he was left out of the loop when Republican Senate staffers stole Democratic emails to get a partisan leg up on Democrats in judicial confirmation fights. Last week we learned that one of those Republican staffers, Manny Miranda, had provided stolen information to Kavanaugh in hilariously undisguised forms—including in an email with the subject line “spying.”

The pattern repeats itself in Kavanaugh’s early testimony about torture and warrantless wiretapping. His overriding goal in all of these hearings has been to leave senators with the impression that they’d find none of his fingerprints on anything partisan, anything unethical, anything lawless, but even a partial sweep of the official record places him at the scene of numerous scandals.

Confronted with the pattern, Sen. Susan Collins (R-ME), told the Portland Press Herald that if Kavanaugh “was not truthful, then obviously that would be a major problem for me.”

Whether Kavanaugh perjured himself in a prosecutable sense or just in a spirit-of-the-law sense is, in a way, less important than the indisputable fact that he was not candid—at all—with senators trying to fulfill their advice and consent obligations. It would be karmically just for his nomination to fail as a result, but it would also be a much needed blow against the scourge of bad faith that dominates conservative politics.

Judicial nominees famously conceal their views about legal controversies and precedent when they testify before the Senate, but what Kavanaugh has done all along is try to conceal the kind of person he is.

To me, the most intelligence-insulting thing Kavanaugh has testified to had nothing to do with judicial nominations or the law. It was in 2004, when he told Sen. Dick Durbin (D-IL) “my background has not been in partisan politics.”

It’s hard to imagine more disingenuous horse shit, and all of his current troubles stem from his unwillingness to let go of that absurd conceit.

Yes, Kavanaugh was a lawyer, with clients, but he was a Republican activist lawyer, whose ultimate professional aim was to advance the interests of the Republican Party. In his capacity as associate counsel to Ken Starr—a notoriously partisan operator himself—he fanned right wing conspiracy theories by gratuitously reopening the investigation of Vince Foster’s suicide. Kavanaugh later argued internally for the most-intrusive possible investigation and questioning of President Clinton vis-a-vis the Lewinsky affair, and adopted a maximal view of Clinton’s legal liability and vulnerability to impeachment.

During this period of time, Kavanaugh traveled with some of the GOP’s most rabid partisans. He provided his legal services to the U.S.-based family of Elián González, after conservatives made a partisan issue of the Clinton administration’s efforts to return the young child to his father in Cuba. He worked on Bush v. Gore. In 2005, he woke President Bush in the middle of the night to present him with “emergency” Republican legislation intervening in a family dispute over whether Michael Schiavo should be allowed to remove his brain dead wife Teri from life support. It’s not entirely coincidental that all three of these episodes pertained to Republican political fortunes in Florida—a critical swing state.

The point is not that the judiciary should be foreclosed to partisan lawyers for life, but that Kavanaugh specifically discredited himself by refusing to cop to his own professional choices. He could have conceded a decade ago that his early- and mid-career jobs were highly partisan, and that his conduct was thus highly instrumental, while promising to leave that ethic behind as a judge. Instead he chose to hide the ball—perhaps because he thought candor might cost him his first judgeship, perhaps because he never intended to stop being a partisan operator—and that fateful decision has forced him to spin increasingly incredible tales about his conduct as documentary evidence has come to light.

He has never apologized for trafficking in stolen documents, and continues to pretend he was simply too naive to recognize unethical, illegal conduct when it was staring him in the face.

Instead of acknowledging that he believed his job was to help his boss identify and confirm ideologically simpatico judges, he offered up a deceptive account of his professional record to distance himself from those judges.

We expect but bemoan this kind of mythmaking from politicians facing voters. We rightly expect more of judges, who answer only to senators, and generally just once, before they are empowered over the public for a lifetime. Because Republicans seek to transform the judiciary into a beachhead of conservative political power, they are unlikely to be moved by the argument that an unrepentant conservative operative should be denied a seat on the Supreme Court. But Collins and other Republicans who remain undecided about Kavanaugh’s nomination should ask themselves whether they can close the Pandora’s box of Kavanaugh’s deceptions simply by voting him on to the Supreme Court and turning the page.

Weeks after Bush promoted Kavanaugh from associate counsel to staff secretary, his White House leaked the identity of a CIA officer named Valerie Plame, blowing her cover as an act of retribution against her husband, who publicly criticized Bush et al for lying the country into the Iraq war. In 2006, Kavanaugh denied knowing “anything about the facts and circumstances of that matter” under oath. As of today, Republicans have requested none of Kavanaugh’s staff secretary papers. Can they be sure that Kavanaugh told the truth about Plame? Or that the truth will never come out? Are they certain Kavanaugh won’t get caught in other deceptions or even outright lies if and when Democrats control Congress, and undertake a full vetting? Nobody in the Senate can honestly say they’re sure Kavanaugh doesn’t have more embarrassments in his undisclosed public record, and that alone, as both a matter of principle and political self-interest, should be enough to sink him.