As a young lawyer in the mid-1990s, Brett M. Kavanaugh spent several years working on Kenneth W. Starr’s investigation of President Clinton.
In that role, he argued that the White House must open itself and its records -- including notes taken by Clinton’s attorneys -- for examination by the independent counsel and his deputies. But as an advisor to President Bush, Kavanaugh has taken the opposite view, zealously defending presidential prerogatives.
This week the White House staff secretary is expected to win the approval of the Republican-controlled Senate Judiciary Committee for a lifetime seat on the U.S. Court of Appeals for the District of Columbia Circuit.
Bush first proposed Kavanaugh, 41, for the appellate bench almost three years ago and resubmitted his name in February.
From the start, the nomination was almost certain to divide the Senate along partisan lines -- in part because Kavanaugh had drafted a key part of Starr’s report urging that Clinton be impeached and removed from office for lying about his sexual involvement with an intern, and in part because of his role in defending the administration’s penchant for secrecy since the GOP retook control of the White House in 2001.
As a deputy White House counsel, he argued that the president and the White House should be shielded from outside inquiries, such as the ultimately unsuccessful lawsuits from environmentalists and congressional auditors who wanted to know whether oil industry officials had met with Vice President Dick Cheney to draft the administration’s energy policy.
This protective stance was not limited to records produced by Bush’s White House. Kavanaugh drafted an executive order that gave Bush the power to block the release of records held in the libraries of former presidents, even though the Presidential Records Act of 1978 said these files should be opened to the public 12 years after a president leaves office.
The White House counsel’s office also determined that in the war on terrorism, the president, in his role as commander in chief, had the power to arrest and hold “enemy combatants” -- foreign and domestic -- without review by Congress, the courts or outside lawyers.
In hearings after Kavanaugh was first nominated, Democrats and liberal activists complained that his record was one of a political warrior, not of a seasoned judge. “If President Bush truly wanted to unite us, not divide us, this would be the last nomination he would send to the Senate,” said Sen. Charles E. Schumer (D-N.Y.).
People for the American Way said at the time that Kavanaugh’s record as “a political operative suggests that should he be confirmed to the D.C. Circuit, he could well become a lap dog, not a watchdog, to the executive branch during GOP administrations -- and an attack dog during Democratic ones.”
Last week, Sen. Arlen Specter (R-Pa.), the Judiciary Committee chairman, agreed to a second hearing today so that Democrats could question Kavanaugh further. Specter said he did so to defuse talk of a possible filibuster.
“My job is to get these men out of the committee and to the Senate floor so they can have an up-or-down vote,” Specter told “Fox News Sunday,” referring to Kavanaugh and Judge Terrence R. Boyle, of North Carolina, whose nomination is pending.
“The Senate came very, very close to a violent train wreck last year with the Democrats filibustering on one side and the Republicans threatening ... the nuclear option on the other side,” he said, referring to the GOP’s call to remove the filibuster from use in judicial nominations. “I want to eliminate any excuse for any reason for the Democrats to filibuster.”
Republicans and conservative activists say Kavanaugh has the academic and professional qualifications for the federal bench. He is a graduate of Yale University and its law school and clerked for two appellate court judges, Walter Stapleton in Philadelphia and Judge Alex Kozinski in Pasadena. During the 1993-94 Supreme Court term, he clerked for Justice Anthony M. Kennedy. In the White House, he has worked in the counsel’s office and as staff secretary, the job held during Bush’s first term by current White House counsel Harriet E. Miers.
After Specter agreed last week to give Democrats a second opportunity to question Kavanaugh, Sen. John Cornyn (R-Texas) said he was bothered by the delay in winning confirmation for nominees.
“I don’t believe the call for yet another hearing is serious. I don’t believe it will change any minds,” Cornyn said. “Unfortunately, from all indications, the Democrats are preparing for a battle reminiscent of the undignified and unwarranted attacks on Justice [Samuel A.] Alito. We won that battle, and we’re ready to fight and win this one.”
Democrats were given more ammunition against Kavanaugh on Monday when the American Bar Assn., which evaluates candidates for the federal bench, rated him as “qualified” -- a downgrade from the “well-qualified” rating he received when he was first nominated.
Earlier this year, the bar association’s judicial evaluation committee contacted 91 judges and lawyers who had observed Kavanaugh’s work. A number of them questioned the breadth of his legal experience.
“It was noted that he had never tried a case to verdict or judgment ... and that he had very little experience with criminal cases,” said Stephen Tober, who chaired the 14-member panel. Several members questioned Kavanaugh’s “judicial temperament” and noted he was described by some as “stubborn” and “insulated.”
But after today’s hearing, Kavanaugh’s path to confirmation should be swift. Specter said the committee would vote Thursday; Kavanaugh is expected to win on a 10-8 party-line vote. Frist said he planned to hold a final vote by the end of the month. Republicans hold 55 of the Senate’s 100 seats.