In the wake of Brett Kavanaugh’s confirmation to the Supreme Court, Americans will long debate whether he was the first (or, arguably, the second) member of the nation’s highest court to have engaged in sexual misconduct. But what is indisputable is that Kavanaugh is the Supreme Court’s first Plumber.
By “Plumber,” I’m not referring to Mario or even Joe “The Plumber” Wurzelbacher. Instead, think of Charles Colson, G. Gordon Liddy, Howard Hunt, and the other henchmen who ran a political dirty tricks operation out of the basement of the Nixon White House. For the architects and felons behind the Watergate break-in and the ransacking of Daniel Ellsberg’s psychiatrist’s office, the ends justified the means. As Colson famously put it, “I’d walk over my own grandmother to re-elect Richard Nixon.”
Simply put, Judge Kavanaugh owes his career on the federal bench to his many years of faithful service as a partisan Republican hatchet man. Prior to his installation on the D.C. Circuit Court of Appeals in 2006, the Renate Alumnius was a right-wing warrior who made his bones by doing the GOP’s dirty work across the better part of two decades. From the Ken Starr inquisition of Bill Clinton, to the 2000 Florida recount, to running the judicial selection for his boss George W. Bush, to illicit domestic surveillance, detainee torture, and other dubious dealings, Brett Kavanaugh’s fingerprints were on them all. And if his unseemly background and shockingly ill-temper weren’t sufficiently disqualifying, Judge Kavanaugh pretty much lied about it all.
That’s certainly not the picture Kavanaugh painted during his first round of confirmation hearings last month. Airbrushing his red-checkered past with bipartisan name dropping, he declared, “I have served with 17 other judges, each of them a colleague and a friend, on a court now led by our superb chief judge, Merrick Garland,” adding “I am especially grateful to the dean who first hired me, now-Justice Elena Kagan.” As for his conception of the role of a Supreme Court Justice, Kavanaugh echoed Chief Justice John Roberts and the man he sought to replace, Anthony Kennedy:
A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy … As Justice Kennedy showed us, a judge must be independent, not swayed by public pressure …
The Supreme Court must never be viewed as a partisan institution. The Justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms. If confirmed to the Court, I would be part of a Team of Nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player on the Team of Nine.
By his own definition, Brett Kavanaugh disqualified himself 10 days ago. In his incendiary opening statement in response to the sexual assault allegations leveled against him by Dr. Christine Blasey Ford, Kavanaugh unleashed a furious partisan tirade that suggested the best destination for this raging Republican was a psychiatric ward—not the Supreme Court.
This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.
That appalling response from the self-proclaimed independent, impartial arbiter of the law provoked an immediate backlash, even from some of Kavanaugh’s friends and supporters. Akhil Ahmar and Benjamin Wittes expressed buyer’s remorse. A group of Judge Kavanaugh’s own former clerks proclaimed themselves “deeply troubled” by the claims made against their one-time boss. More than 2,400 law professors signed a letter calling his judicial temperament into question. The Jesuit magazine America rescinded its endorsement and urged the Trump nominee to withdraw, worried perhaps that what happened at Georgetown Prep wouldn’t stay at Georgetown Prep. And the American Bar Association asked the Senate to delay Brett Kavanaugh’s confirmation vote until the FBI investigation into the allegations against him was completed. The ABA subsequently reopened its evaluation of Kavanaugh.
As the Washington Post and New York Times recently reported, this is not the first time the ABA—the organization deemed the “gold standard” two weeks ago by South Carolina Sen. Lindsey Graham—expressed second thoughts about the man it had previously declared “well qualified” for the nation’s top courts. In 2006, as his nomination to the U.S. Appeals Court in Washington languished, the ABA reduced its rating for the White House lawyer and staff secretary to President George W. Bush to “qualified.” That May, the Post reported, the ABA’s interviews with dozens of lawyers, judges, and others with whom Kavanaugh worked raised some red flags about “his professional experience and the question of his freedom from bias and open-mindedness.” He was branded as “sanctimonious” by one judge and accused by some lawyers as having “dissembled” in the courtroom.
“One interviewee remained concerned about the nominee’s ability to be balanced and fair should he assume a federal judgeship,” the ABA committee chairman wrote to senators in 2006. “Another interviewee echoed essentially the same thoughts: ‘(He is) immovable and very stubborn and frustrating to deal with on some issues.’”
Ultimately, the group gave Kavanaugh its modified blessing, despite its “concern over whether this nominee is so insulated that he will be unable to judge fairly in the future”—with good reason. When New York Democratic Sen. Charles Schumer said 12 years ago “If there was a political fight that needed a political foot soldier in the last decade, Brett Kavanaugh was probably there,” the future Senate Minority Leader wasn’t expressing an opinion but a simple fact.
Consider, for example, Brett Kavanaugh’s role in the Whitewater investigation conducted by Ken Starr, which ultimately led to the impeachment of Bill Clinton in 1998. To be sure, Kavanaugh was no fan of the Clintons. As a TV camera panned to first lady Hillary Clinton during the 1997 State of the Union Address, former right-wing activist turned left-wing activist David Brock wrote of his colleague in 2002, Kavanaugh mouthed the word “bitch.” Kavanaugh, who would later magically come to oppose independent counsels, broad grounds for impeachment, and the constitutionality of indicting a sitting president, felt differently when William Jefferson Clinton sat in the Oval Office. As he wrote in a memo to Starr:
“The president has disgraced his office, the legal system and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle,” Mr. Kavanaugh wrote…
“He has lied to his aides,” Mr. Kavanaugh wrote. “He has lied to the American people. He has tried to disgrace you” — meaning Mr. Starr — “and this office with a sustained propaganda campaign that would make Nixon blush.”
Not one to blush himself, Kavanaugh urged his colleagues to take a very hard line against Clinton. The president, he insisted, should be asked about graphic details of his escapades with Monica Lewinsky, including where and how many times he ejaculated. Why the fixation on Clinton’s comings and goings, so to speak?
“It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear — piece by painful piece. Aren’t we failing to fulfill our duty to the American people if we willingly ‘conspire’ with the president to conceal the true nature of his acts?” [Emphasis mine.]
It is more than a little ironic that Brett Kavanaugh now refuses to hold himself to that same standard.
As grotesque as Kavanaugh’s semen-stained moralizing was, it was overshadowed by his disgusting investigation into the 1993 suicide of Clinton White House aide Vince Foster. As Princeton professor Sean Wilentz recently documented, House and Senate committees along with Ken Starr’s predecessor Robert Fiske and the National Park Service had all concluded the depressed Foster had in fact killed himself in Fort Marcy Park in 1993. But in early 1995, Kavanaugh urged a “full-fledged investigation” of Foster’s death, claiming “we have received allegations that Mr. Foster’s death related to President and Mrs. Clinton’s involvement” in Whitewater and other alleged scandals. As Wilentz detailed, those “allegations” came from conspiracy theorists including Reed Irvine, Ambrose Evans-Pritchard, and Christopher Ruddy, now the chief executive of Newsmax and confidant of President Trump.
Brett Kavanaugh didn’t merely waste $2 million in taxpayer funds on his quixotic pursuit of long-debunked conspiracy theories.
He meticulously examined the White House carpets, old and new. (By now, Mr. Foster had been dead four years.) He sent investigators in search of follicle specimens from Mr. Foster’s bereft, blond, teenage daughter. (“We have Foster’s hair,” one agent working for Mr. Kavanaugh reported in triumph.)
Mr. Kavanaugh apparently took a special interest in Hillary Clinton’s bruited affair with Mr. Foster, a popular rumor in the fever swamps of the right. As he reported, his investigators “asked numerous people about it,” before he decided to ask Mrs. Clinton herself.
(It should be noted that California Democratic Sen. Diane Feinstein has accused of Kavanaugh of misleading Judiciary Committee members about illegally leaking grand jury secrets during the Foster probe.)
Having made his name in Ken Starr’s Grand Inquisition, Brett Kavanaugh went to work getting Bill Clinton’s replacement into the White House. But when “the dolphins who surrounded him like a contingent of angels” pushed 5-year-old Elian Gonzalez up and toward the Florida coast in late 1999, Peggy Noonan was not alone in seeing a miracle—for George W. Bush’s prospects in Florida. Brett Kavanaugh was dispatched to the Sunshine State to argue on behalf of Elian’s relatives in Florida that the child should not be returned to his father back in Cuba. While U.S. and international law suggested otherwise, Mark Kende, director of the Drake Constitutional Law Center explained, Republican politics instead required energizing the Cuban exile community.
Kavanaugh was among a series of lawyers who unsuccessfully sought to stop efforts to repatriate Gonzalez to Cuba, and the boy was sent home in the summer of 2000.
Kende noted that Kavanaugh, in taking on the Elian Gonzalez custody fight, must have known there was widespread legal consensus that the rights of Gonzalez’s father in Cuba would predominate. Kende said the decision to litigate seemed more driven by politics than law, and therein lies the doubt about Kavanaugh.
“The legal community was in agreement that in the end the father would prevail,” said Kende. “The [Gonzalez case] was about politics. And when you get attorneys like Kavanaugh that were political animals, the question is always how will they perform as a judge.”
Especially when Florida judges seemed poised to give Al Gore a chance to win the disputed electoral votes there after Election Day 2000. Brett Kavanaugh was part of the Bush legal team led by Ben Ginsburg that ultimately convinced the Supreme Court to overrule the Florida Supreme Court and put a halt to the recount there. Team Bush and five justices had no trouble with encroaching on a state’s right to manage its election process if that process seemed to create the possibility of a Democratic victory. On December 11, 2000, CNN’s Wolf Blitzer interviewed Brett Kavanaugh about the drama unfolding at the Supreme Court, identifying him only as a former clerk to Justice Anthony Kennedy, and not a lawyer for the Bush campaign. Kavanaugh offered his theory that the case hinged on what does “Article II of the Constitution mean in the first instance.” Ultimately, he predicted:
“I think what we are seeing is more of a divide over how to interpret the Constitution than really political differences. I don’t think the justices care that it’s Bush versus Gore, or if it were Gore versus Bush, what they care about is how to interpret the Constitution, what are the enduring values that are going to stand a generation from now.”
In Bush v. Gore, of course, the Justices reached a political decision they insisted should not be cited beyond that case. Reversing the intent of the Equal Protection clause of the 14th Amendment to, among other things, expand the franchise, Justice Kennedy’s opinion instead cited it as the basis to stop votes from being counted. Its reasoning, the Court argued, was “limited to the present circumstances.”
For his handiwork, Brett Kavanaugh was rewarded with a plum assignment in the new administration, serving as the staff secretary for President Bush. (As Karl Rove described Kavanaugh’s central position, “literally every document that goes to the president on a policy issue has to pass through the hands of the staff secretary and he has to be the person who asks people tough questions about what they are trying to say in that document and helps edit it.”) In this role, Kavanaugh still kept an eye on—and a hand in—Florida politics. Kavanaugh had helped represent Florida governor and Dubya’s brother Jeb Bush in defending a school voucher program later struck down as unconstitutional by the Florida Supreme Court in 2006. In March 2005, it was Brett Kavanaugh who secured President Bush’s signature on the legislation intervening to prevent Michael Schiavo from honoring his wife Terri Schiavo’s wishes in disconnecting her from life support.
Mr. Bush, who returned to Washington from his Crawford ranch on Sunday, was awakened after the House passed the Schiavo bill at 12:42 a.m. His staff secretary, Brett Kavanaugh, delivered the legislation to be signed, which Mr. Bush did while standing in a hallway.
Every court at every level had ruled in favor of Michael Schiavo. The United States Supreme Court was no exception. (On March 31, 2005, House Majority Leader Tom Delay declared, “The time will come for the men responsible for this to answer for their behavior, but not today.” He was not the first and would be not be the last Republican to threaten judges over their rulings.)
But in the White House, President Bush’s staff secretary had his hands on putting loyal Bushies in place throughout the government. Kavanaugh’s role didn’t merely include vetting potential judicial nominees; in 2002 he recommended that Bush torture architects John Yoo and Jay Bybee be selected for the Ninth Circuit Court of Appeals. But when it came to topics like the torture memos they wrote, the illicit NSA program of warrantless surveillance revealed in 2005, and emails stolen from Democratic members of the Senate Judiciary Committee by GOP operative Manuel Miranda, Brett Kavanaugh denied he knew anything at all. And in the run-up to his 2006 confirmation as now, Kavanaugh lied about virtually all of them.
On Sept. 20, the Washington Post gave a Three-Pinocchio rating to Kavanaugh’s claims that he had neither seen the Democratic documents purloined by Miranda nor was aware of the theft at the time. Kavanaugh similarly suggested he had no role in the nominations of Charles Pickering Jr. and William Pryor, a position belied by emails subsequently made public. The future Judge Kavanaugh in 2006 told Democratic Illinois Sen. Dick Durbin that “I was not involved and am not involved in the questions about the rules governing detention of combatants, and so I do not have any involvement with that.” But as NPR reported back in 2007:
In fact, in 2002, Kavanaugh and a group of top White House lawyers discussed whether the Supreme Court would uphold the Bush administration’s decision to deny lawyers to American enemy combatants. Kavanaugh advised the group that the Supreme Court’s swing voter, Justice Anthony Kennedy, would probably reject the president’s assertion that the men were not entitled to counsel. Kavanaugh had worked as a clerk for Kennedy.
During his 2006 confirmation hearings, Kavanaugh also told Democratic Vermont Sen. Pat Leahy that he had learned of the warrantless NSA domestic surveillance of American citizens only after the bombshell New York Times story of December 2005. Prior to the story, he said, he knew “nothing at all.” But as a September 17, 2001 email to John Yoo less than a week after the 9/11 attacks showed, Kavanaugh was already asking about the Fourth Amendment implications of “random/constant surveillance of phone and email conversations.”
As Brett Kavanaugh’s fate was about to be resolved by the United States Senate, Americans have a laser focus on the myriad lies he uttered in rebutting charges of sexual impropriety. His jurisprudence of corporate power, virtually unlimited executive authority, anti-abortion advocacy, and opposition to Justice Kennedy’s Obergefell opinion on marriage equality has almost been put on a back-burner. But perhaps more important, Americans may have lost sight of Brett Kavanaugh’s failure to live up to his own standard for “The Judge as Umpire.” As he put it in 2015:
To be a good judge and a good umpire, it’s important to have the proper demeanor. Really important, I think. To walk in the others’ shoes, whether it be the other litigants, the litigants in the case, the other judges. To understand them. To keep our emotions in check. To be calm amidst the storm. On the bench, to put it in the vernacular, don’t be a jerk. I think that’s important. To be a good umpire and a good judge, don’t be a jerk.
As he has shown over the past two weeks, Brett Kavanaugh has failed at every turn. He’s not neutral or impartial. He lacks the proper demeanor. He doesn’t keep his emotions in check. He is, to put it in the vernacular, a jerk. (As Charles Pierce put it so eloquently, “A high-end legal ratf*cker Is still a ratf*cker.”) No, Brett Kavanaugh is a hack, an operative, a partisan hatchet man. Much like Charles Colson and his Plumbers.
About a month before leaving office, President George W. Bush welcomed the convicted felon Chuck Colson back to the White House—not to relive his perp walk, but to receive the Presidential Citizens Medal. Now, Presidents Bush and Trump successfully whipped Republicans to vote for Judge Kavanaugh, this time to award this white-shoe Plumber with a lifetime place on the Supreme Court.
This is a Creative Commons article. The original version of this article appeared here.