Brett Kavanaugh, YES! New York Times, NO!

By Michael Gaynor

One more good reason to confirm Brett M. Kavanaugh as a federal appellate judge: The New York Times (NYT), the daily issues of which make a mockery of its "all the news that's fit to print" motto, is utterly opposed to his confirmation In a typically mind boggling, self-laudatory laudatory editorial mistitled "An Unqualified Judicial Nominee," NYT disparaged the American Bar Association's "Well Qualified Rating" of Mr. Kavanaugh (without mentioning it) and deceptively described the Bush administration's terrorist surveillance program as "domestic spying."

Mr. Kavanaugh must be questioned about the program, NYT railed, as though the real crime was not NYT's aiding and abetting of the terrorists by disclosing the vital program. Under America's Constitution, the President of the United States had inherent authority as President and Commander-in-Chief to authorize the monitoring of international call believed to involve terrorists. In addition, it appears that he had Congressional approval to do so under legislation enacted soon after September 11, 2001.

Let's parse the pathetic NYT editorial.

"Senate Republicans have announced plans to push for a quick vote on Brett Kavanaugh, whose nomination for a powerful appeals court judgeship has languished since 2003."

Mr. Kavanaugh's nomination HAS been languishing since 2003, so a vote will NOT be quick. It will be tardy.

"There are good reasons the nomination has been kept on hold."

No, there are not. The Constitution provides for approval of judicial nominees (and other presidential nominees) by a simple majority. The President, the President's nominees and the American people are entitled to have an up-or-down vote on each nominee within a reasonable period of time. There is no good reason for sore losers to block a vote.

Note: In 1995, the hypocritical NYT railed against the filibuster as follows: "The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This [is a] relentless abuse of a time-honored Senate tradition . . . . Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes."

"Mr. Kavanaugh was unqualified then, and he is unqualified now."

Apparently NYT defines "unqualified" to include those who believe that the proper role of a judge or justice is to interpret the law and the Constitution — not make up the law and deprive the people of the right to govern ourselves" and "qualified" to include those who believe that a judge or a justice should use the power of the court to impose the NYT's personal and political agendas on the people.

"Moreover, since his Senate hearing in 2004, new issues have been raised that he should be questioned about, including what role, if any, he played in Bush administration policies like the National Security Agency's domestic spying program."

There is absolutely no evidence of any wrongdoing by Mr. Kavanaugh (or else NYT would be trumpeting it), but NYT still wants to continue to stall in the hope that a fishing expedition somehow will prove fruitful and retroactively justify the inordinate delay in giving Mr. Kavanaugh the up-or-down vote he should have received during President Bush's first term.

"Mr. Kavanaugh has been nominated to the United States Court of Appeals for the District of Columbia Circuit, often called the nation's second most important court."

True! Even a broken clock is right twice a day.

"A young lawyer with paltry courtroom experience, Mr. Kavanaugh does not have the legal background appropriate for such a lofty appointment."

What a palpable lie!

Throughout his career as an appellate lawyer, a prosecutor, and an Assistant to the President, Mr. Kavanaugh has demonstrated legal excellence and the fair-minded temperament to serve as a federal appellate judge. The American Bar Association (the Democrat's "gold-standard") rated Mr. Kavanaugh "Well Qualified" to serve on the DC Circuit.

Mr. Kavanaugh has an extraordinary range of experience in the public and private sectors that makes him uniquely qualified for the D.C. Circuit. He has dedicated the majority of his 15 years of practice to public service. Mr. Kavanaugh has impeccable academic credentials. He received his B.A. from Yale College and his law degree from Yale Law School, where he served as Notes Editor of the Yale Law Journal.

Mr. Kavanaugh serves as Assistant to the President and Staff Secretary. In that capacity, he is responsible for coordinating all documents to and from the President. He previously served for two years as Senior Associate Counsel and Associate Counsel to the President. In that capacity, he worked on the numerous constitutional, legal, and ethical issues handled by that office.

Mr. Kavanaugh specialized in appellate law and has extensive experience in the federal appellate courts, both as a law clerk and as counsel. Mr. Kavanaugh clerked for Supreme Court Justice Anthony Kennedy, as well as Judge Alex Kozinski of the Ninth Circuit and Judge Walter Stapleton of the Third Circuit.

Mr. Kavanaugh has argued both civil and criminal matters before the Supreme Court and appellate courts throughout the country. Prior to his Supreme Court clerkship, Mr. Kavanaugh earned a prestigious one- year fellowship in the Office of the Solicitor General of the United States. The Solicitor General's office represents the United States before the Supreme Court. Prior to his service in this Administration, Mr. Kavanaugh was a partner at the law firm of Kirkland & Ellis, where his practice focused on appellate matters. As an Associate Counsel in the Office of Independent Counsel, he handled a number of the novel constitutional and legal issues presented during that investigation.

In addition to devoting most of his career to public service, Mr. Kavanaugh regularly offers his legal expertise and personal time to serving his community. Examples: Mr. Kavanaugh took on pro bono matters, including representation of the Adat Shalom congregation in Montgomery County, Maryland against the attempt to stop construction of a synagogue in the county, and represented, on a pro bono basis, six-year-old Elian Gonzalez after the Immigration and Naturalization Service decided to return him to Cuba.

People from across the political spectrum support Mr. Kavanaugh's nomination to the D.C. Circuit and have expressed their admiration for his professional acumen and his personal integrity and fairness.

Examples:

Judge Walter Stapleton: "[Mr. Kavanaugh] really is a superstar. He is a rare match of talent and personality."

William P. Barr, former Attorney General of the United States and current Vice President and General Counsel of Verizon: "As general counsel of GTE and subsequently Verizon, I was fortunate to have Brett work on a number of matters for me....Brett quickly established himself as one of the key outside lawyers I went to on some of my toughest legal issues. He has a keen intellect, exceptional analytical skills, and sound judgment. His writing is fluid and precise. I found that he was able to see all sides of an issue and appreciate the strengths and weakness of competing approaches. He was particularly effective in dealing with novel issues which required some original thinking. ...In addition to his powerful legal skills, I can say unequivocally that he possesses precisely the temperament we seek in our federal judges. He has a profound sense of humility and the intellectual curiosity and honesty to explore and consider contending positions. He is patient and highly considerate of others. Above all, he is blessed with a delightful sense of humor." (Letter to Sen. Specter, May 10, 2005)

Professor Robert M. Chesney, Wake Forest University School of Law: "As a former law clerk to judges on the United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit, and in my current capacity as a law professor, I have had occasion to consider the qualities that make for a good judge. Brett Kavanaugh has such qualities in abundance. My comments about Mr. Kavanaugh's qualifications are based on having known him in a personal capacity for a number of years. Through that contact, I have come to learn that he is an immensely bright lawyer who combines intellect and experience with a tremendous work ethic. Equally significant, moreover, through all of my conversations with him on a wide variety of subjects I have found him to be a very reasonable and open-minded thinker. He is not an ideologue; on the contrary, he is intellectually open and moderate. It may be a cliché, but it is fair to say that he has a judicial temperament. Because he combines these essential judicial qualities — intelligence, experience, diligence, and open-mindedness — I whole-heartedly support his nomination." (Letter to Sen. Hatch, April 26, 2004)

Mark H. Tuohey III, former President of the District of Columbia Bar: "[Mr. Kavanaugh] is exceptionally well qualified to serve on one of the nation's most important appellate courts, as he possesses keen intellectual prowess, superior analytical skills and a strong commitment to applying the role of law in a fair and impartial manner. As well, Mr. Kavanaugh's interpersonal skills will enable him to become a strong collegial member of a court where personal relationships lend themselves to a better administration of justice....I was responsible for the hiring and supervision of Mr. Kavanaugh. In every respect during our relationship, Mr. Kavanaugh exhibited the highest qualities of integrity and professionalism in his work. These traits consistently exemplify Mr. Kavanaugh's approach to the practice of law, and will exemplify his tenure as a federal appellate judge. His approach to important questions of law will be professional, not partisan." (Letter to Sen. Hatch, April 26, 2004)

Thomas Yannucci, Kirkland & Ellis LLP: "I can say, without qualification, that Brett Kavanaugh is eminently qualified to be a judge on the DC Circuit. He possesses a first-rate intellect and exceptional analytical skills. He possesses superior writing skills and is a very persuasive oral advocate as well. He brings sound judgment and nuance to difficult and complex legal matters. In short, his skills as a lawyer are among the best I have ever seen... My experience with Brett convinces me that he has the strength of character, compassion and judgment to be an excellent judge, especially when coupled with his outstanding legal abilities." (Letter to Sen. Specter, May 12, 2005)

Bradford A. Berenson, Sidley Austin Brown & Wood LLP: "I represent clients in all manner of civil and criminal disputes, and I would be relieved and gratified to find Mr. Kavanaugh on a panel in any case in which I was involved, no matter who my client was or what the issue was: he can absolutely be relied upon to be fair and impartial and to bring to the task a clear and thorough understanding of the law. ... That an individual has been allied with politicians or political causes in one party or the other is not a fair or wise basis for disqualifying an individual for a judgeship; rather, the important question is how the individual has fulfilled his responsibilities in those matters. In this regard, it is my firm opinion that Mr. Kavanaugh has always adhered to the highest ideals of his profession. In my observation, he has never acted as a raw partisan; he always articulates all relevant considerations on both sides of an issue for his clients, and his ultimate legal judgment has always been sound and based on the merits. Although I am disabled from discussing specifics, I can assure you that he has often been a voice of moderation and reason within the councils of government." (Letter to Sen. Specter, May 10, 2005)

Pamela Harris, O'Melveny & Myers LLP: "I have known Brett well for over fifteen years, since we were students together at Yale Law School. I am a liberal Democrat, and during the time we have been friends, Brett and I have disagreed on most political issues we have discussed, and on many legal issues, as well. But not once in that time has Brett been anything less than fully respectful of my views, or unwilling to hear and take seriously what I have to say. ...At a time when politics and law have become so deeply divisive, Brett stands out as someone who refuses to personalize policy disagreements. He never belittles or condescends to those with whom he disagrees. His long-standing friendships with those outside his political circle attest to the fact that he continues to command the respect and affection of political adversaries." (Letter to Sen. Hatch, April 27, 2004)

Carolyn Williams, Williams & Connolly LLP: "Throughout his career, Brett Kavanaugh has performed at the highest level of professional excellence. ... He is universally respected for his comprehensive knowledge of the law, his brilliant analytical abilities and his ability to listen, to reflect and to make difficult decisions based on the law and the facts. Despite his extraordinary intellect and talent, Brett Kavanaugh never exhibits a trace of arrogance. He is always professional in his dealings with others. His calm demeanor and unquestionable integrity compel even his adversaries to like and respect him. Brett Kavanaugh would make an ideal judge. Indeed, the judicial system and the citizens whose lives are affected by it will be greatly enriched by his willingness to serve. He will uphold the law with honor, probity and common sense. I have no doubt that those whose cases he decides will feel that they received justice from a judge who followed the law without bias or predilection." (Letter to Sen. Specter, May 11, 2005)

Adam H. Charnes, Kilpatrick Stockton LLP: "Brett is obviously one of the most distinguished lawyers of his generation. ... Brett is also well within the legal mainstream. Everyone who has met Brett — Democrats and Republicans alike — knows that he is thoughtful, considerate, and fair. Brett is not an 'extremist' on legal issues or anything else. In fact, he would be the consummate judge — listening carefully to both sides, considering all aspects of a case without preconceived notions, respecting the limitations inherent on judges, and deferring appropriately to the policy decisions of Congress and the Executive. Brett Kavanaugh is precisely the type of lawyer who should serve on the federal appellate court." (Letter to Sen. Hatch, April 23, 2004)

No wonder NYT and its Democrat obstructionist allies have been blocking a confirmation vote: Mr. Kavanaugh obviously is superbly qualified!

"What he does have is a résumé that screams political partisanship."

Did I miss something? Did NYT oppose the confirmation of Justice Ruth Bader Ginsburg on the ground that she had been counsel to the highly partisan American Civil Liberties Union? Or Justice Stephen Breyer, on the ground that he had worked for the highly partisan Senator Edward M. Kennedy? Mr. Kavanaugh's stellar resume screamed "Highly Qualified" to the American Bar Association, which is not suspected of favoritism toward Republicans or conservatives.

"He worked for Kenneth Starr, the independent prosecutor, and helped draft possible grounds of impeachment against President Bill Clinton."

Important work that resulted in impeachment but not conviction (because Senate Democrats as a block thwarted it). Is the NYT position really that anyone who worked for Independent Counsel Starr is disqualified from federal judicial service? Will NYT be demanding resignations or impeachment of such persons now serving with distinction on the federal bench? Obviously it is NYT that is outrageously partisan.

"He became a partisan in the impeachment battles that followed, co-writing an op-ed article in 1999 that presented Mr. Starr as an 'American hero,' while railing against a "presidentially approved smear campaign against him." He was a lawyer in the Independent Counsel's Office doing his job very well during the impeachment battles and his op-ed was right on target. (Note: I wrote a similar op-ed published in The National Law Journal, because Team Clinton and its allies surely did smear Independent Counsel Starr for doing his job instead of ignoring perjury and obstruction of justice on the novel nitwit notion that it involved sex.) "Mr. Kavanaugh has spent much of his legal career since then in the Bush White House, where he helped many of the administration's far-right judicial nominees."

To NYT, a strict constructionist is "far-right." In fact, a strict constructionist is right, that is, faithful to the Constitution and the rule of law, and a judicial activist is wrong, that is, unfaithful to the Constitution and the rule of law.

"Since Mr. Kavanaugh's nomination was first considered, information has come to light about a number of troubling policies that he could have had a hand in, including domestic spying, torture and rendition of detainees to other countries."

What gall! Delay an up-or-down vote within a reasonable time and then demand more and more investigation, NOT on the basis of evidence, but in the hope that something bad may be covered. It is NYT that needs to be investigated, for aiding and abetting the enemy during the War on Terror in its partisan zeal.

"Senate Democrats would like to question Mr. Kavanaugh about these programs, and about what connection he had, if any, to the Jack Abramoff scandal."

If any? Most Senate Democrats will use virtually any excuse or pretext to block an up-or-down vote on a struct constructionist judicial nominee.

"It is not clear, however, that they will get the chance. Arlen Specter, the Pennsylvania Republican who is chairman of the Senate Judiciary Committee, has so far resisted calls for another hearing before Mr. Kavanaugh's nomination is brought to a vote."

There is no need for another hearing. NYT certainly has not offered any evidence warranting one. NYT strategy: If you can't win the vote, block the vote! Pathetic!

"The Republicans have long used judicial nominations as a way of placating the far right of their party, and it appears that with President Bush sinking in the polls, they now want to offer up some new appeals court judges to their conservative base. But a lifetime appointment to the D.C. Circuit is too important to be treated as a political reward."

"[T]hey now want to offer up some new appeals court judges to their conservative base"? President Bush nominated Mr. Kavanaugh during his first term, not recently, as a result of polls. President Bush was reelected. Mr. Kavanaugh is highly qualified. NYT and its Democrat obstructionist allies are the ones thwarting the voters' will expressed on Election Days 2000 and 2004, playing politics with judicial nominations, pandering to extremists and disregarding the Constitution.

© Michael Gaynor