Earlier this week the Senate Judiciary Committee released another batch of documents from (among other things) Judge Brett Kavanaugh’s stint in the White House counsel’s office. This post is not about those documents, because I just finished reviewing an earlier batch (totaling approximately 80,000 pages) of emails from Kavanaugh’s time in the White House.
I covered the first batch of documents (“Set 1” of the documents whose production is dated August 2, 2018) in a prior post. The emails at the center of this post (“Set 2” of the documents whose production is dated August 2, 2018) indicate that, while in the White House counsel’s office, Kavanaugh closely followed decisions by and developments at the Supreme Court. After the Supreme Court ruled in Atkins v. Virginia that individuals with intellectual disabilities cannot be executed, Kavanaugh wrote to other members of the White House counsel’s office that the dissents in the case were “interesting.” He cited as an example one snippet from a dissent by the late Justice Antonin Scalia, joined by the late Chief Justice William Rehnquist and Justice Clarence Thomas, arguing that “[s]eldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.”
After the Supreme Court issued a decision in June 2003 upholding the University of Michigan’s use of race in its undergraduate admissions process, Kavanaugh did not appear to directly weigh in on the decision – in contrast, for example, to a colleague who expressed hope that the press had gotten the ruling wrong in reporting on it. But Kavanaugh did forward what he described as a “news story on [the] conservative reaction” to the ruling to White House counsel Alberto Gonzales and deputy counsel David Leitch. The story bore the headline “Conservatives Call Affirmative Action Rulings ‘Disgusting’ and ‘Disappointing.’” He also forwarded an op-ed that was critical of Justice Sandra Day O’Connor, the author of the opinion; the op-ed described the Michigan ruling as an “intellectual mess.”
Kavanaugh was the recipient of an email from Helgi Walker, another lawyer in the White House counsel’s office, asking him why the Supreme Court had dismissed Adarand Constructors v. Mineta, in which the George W. Bush administration (like the Clinton administration before it) had asked the justices to uphold a federal program intended to aid minority contractors against a challenge from a Colorado construction company with white owners. Kavanaugh responded that the federal government’s brief – which he characterized as “otherwise a noseholder of a brief” – “implicitly suggested that this was the way to go.”
Kavanaugh and others also took a keen interest in potential retirements at the Supreme Court. In June 2001, Kavanaugh predicted that Chief Justice William Rehnquist, then in his late 70s, would step down at the end of the term. When Kavanaugh was proven wrong (Rehnquist would still be on the bench when he died four years later, at the age of 80), he responded to Walker’s email suggesting that the lawyers who had made inaccurate predictions should buy pizza for the rest of the office with the comment that “wishful thinking clouded my prediction.”
The emails hint, although without providing much detail, at Kavanaugh’s role in the response to the September 11 attacks. On September 12, 2001, Kavanaugh sent an email in which he asked for two or three of the “best con law treatises with sections on Presidential war powers, etc.” In another email, Kavanaugh mentioned a meeting that day with (among others) John Yoo of the Justice Department’s Office of Legal Counsel, who would later be the author of memos that justified the use of warrantless wire taps and enhanced interrogation techniques as part of the war on terror. In October 2001, Kavanaugh requested a safe for his office, as well as a secure phone; he also asked for access to a classified computer and printer. In March 2003, Kavanaugh received an email telling him that Alberto Gonzales, the White House counsel, “wants you to look at a classified document.”
In one email, Kavanaugh apologized for missing a meeting, explaining that he had been “assigned to an undisclosed location” – which emails also refer to as an “away site.” Although the emails do not make clear exactly what was going on, it seems likely (based on news reports) that the “undisclosed location” was associated with the “shadow governments” created outside Washington, D.C., after September 11. Lawyers from the White House counsel’s office appeared to rotate turns at the “away site,” but scheduling those turns apparently caused some friction within the office. At one point, Kavanaugh tried to mediate a dispute over the schedule, but his efforts prompted an email from the lawyer in charge of the schedule telling Kavanaugh that his “threats are pointless” and urging him to “please stop your whining.”
Kavanaugh and others in the office appeared to spend an extraordinary amount of time working on judicial nominations. In particular, many emails are devoted to the campaigns to win confirmation of Carolyn Kuhl (who was nominated but never confirmed to the U.S. Court of Appeals for the 9th Circuit), Miguel Estrada (nominated but never confirmed to the U.S. Court of Appeals for the District of Columbia Circuit) and Priscilla Owen (nominated to the U.S. Court of Appeals for the 5th Circuit in 2001 and finally confirmed in 2005). Perhaps because of the delays in getting some of these nominees confirmed, in September 2002 he emailed Kyle Sampson (another lawyer in the White House counsel’s office) that he wanted to “talk about recess appointments when you get a chance.”
Well before he was nominated to the D.C. Circuit, Kavanaugh was apparently considered for a spot on the U.S. Court of Appeals for the 4th Circuit, which includes Maryland (where he grew up and now lives). After a meeting with Gonzales, Kavanaugh wrote to Ashley Estes, now his wife, that he would not be getting the job (he didn’t say which one, but presumably the 4th Circuit nomination). Kavanaugh later received an email from Ben Wittes, an editorial page writer for The Washington Post, who wrote Kavanaugh that “I know that both you and [Peter] Keisler were discussed” as potential nominees for the 4th Circuit but “that one or the other of the Maryland senators said no.” Instead, Bush later nominated Claude Allen, an administration official; Allen was never confirmed and later pleaded guilty to theft after being accused of taking items from the shelf at a store and then “returning” them for credit.
As I noted in my earlier post, other emails indicate that Kavanaugh worked closely with others in the White House on communications and press issues. One email, for example, indicates that after September 11 he was assigned to coordinate with Ken Mehlman, head of the White House’s Office of Political Affairs, on an op-ed by Rudy Giuliani. And in a May 2003 email to White House spokeswoman Ashley Snee, Kavanaugh wrote that “[w]e should make sure we get Jeff Toobin the story about Justice Kennedy and the Justice Ginsburg information.”
Kavanaugh appeared to promote Judge Alex Kozinski, the 9th Circuit judge for whom he clerked, for a seat on the Holocaust Museum Commission. In a February 2001 email to Kyle Sampson, Kavanaugh wrote that he knew “someone who would be a great member” of the commission and was “interested.” A few months later, Sampson cc’d Kavanaugh on an email indicating that Sampson was passing on “the bio of Judge Alex Kozinski,” “along with a short note from Brett Kavanaugh of the Counsel’s office.” Kozinski retired from the bench last year after being accused of sexual misconduct by several women.