Never mind, for the moment, that this is tantamount to asking Barry Bonds whether Mark McGwire lied to Congress about steroid use. Deeply important questions of legislative oversight and judicial independence are on the line here.
At issue is the testimony of Brett Kavanaugh, a former White House legal adviser who is now a sitting judge on the U.S. Court of Appeals for the District of Columbia. That body’s location in the nation’s capital makes it the most influential court besides the Supremes.
During the May 9, 2006, hearing to vet Kavanaugh’s nomination to the court, the nominee was asked whether he had known about the administration’s deliberations over treatment of detainees held on suspicion of terrorist activity prior to the issue becoming public in 2004. Given both the nominee’s position as a legal adviser to the president and the prospect of his lifetime appointment to a court charged with reviewing those detention policies, it was not an idle question.
Responding to Leahy at the hearing, Kavanaugh said: “I was not aware of any issues on that or the legal memos.”
But then in June came one sentence in The Washington Post’s Proustian series about Vice President Dick Cheney. The piece described Kavanaugh, a former clerk to U.S. Supreme Court Justice Anthony Kennedy, as having advised top White House officials that his former mentor would never accept absolute presidential discretion on denying detainees access to legal counsel. A follow-up to the Post story on National Public Radio the next day claimed to have “independently confirmed the details with multiple sources.”
Sen. Dick Durbin reacted by demanding that Kavanaugh recuse himself from future detention cases. Leahy asked the attorney general to investigate. As described in the Post, the incident in question was alleged to have occurred in “Gonzales’s corner office on the second floor of the West Wing,” because he was White House counsel at the time. Surreal, to say the least.
But is there enough there to warrant Congress taking action against Kavanaugh, who was confirmed by the Senate on a 57-36 vote? After all, the sources for both the Post and NPR accounts are all anonymous. And the sources’ account amounts to Kavanaugh providing a one-time handicapping of a former mentor’s jurisprudential tendencies. And a spokesman for the appellate court said said Kavanaugh’s confirmation testimony was “accurate.”
But let’s say, for the sake of argument, that an investigation did reveal that a nominee for the federal bench had knowingly lied to Congress. What is the recourse? As Stephen Gillers of NYU Law School told me: “There are no confirmation do-overs.”
Fair enough. But perhaps we do need an option somewhere between doing nothing and declaring the political equivalent of nuclear war. A slap on the wrist—but one that leaves a scar.
Historically, impeachment has been the only instrument available for punishing judges. When federal judge Alcee Hastings was removed from office in 1988, the Senate found him guilty on eight different articles of impeachment. When federal judge Robert Collins resigned in 1993, he had been convicted of fraud, conspiracy and obstruction of justice—which is why he proffered his resignation from a prison cell. But impeachment is way too heavy a club to swing at guys like Kavanaugh; his alleged transgression comes nowhere near that level of wrongdoing.
On the other hand, doing nothing just isn’t good enough. William Rehnquist at best prevaricated to senators during his confirmation hearing to be chief justice of the Supreme Court (see Richard Kluger’s discussion of Plessy v. Ferguson in “Simple Justice”). Clarence Thomas made jaws drop by claiming he had never discussed Roe v. Wade. The most recent examples may tilt Republican, but this is not a partisan issue. Whatever the ideological stripe of the nominee might be, are we supposed to just let these whoppers go?
If the judge was indeed part of the detainee deliberations while at the White House, he should recuse himself on any such issues that come before him. But that is, under our judicial system, a decision left totally to his discretion; parties in his courtroom can ask him, but nobody can make him sit a case out.
The best course is for the Senate to take matters into its own hands (forget the kabuki theater of asking Gonzales to investigate) and issue the proper punishment for what we might think of as a “lesser included offense.” It’s called censure. It would carry no legal effect, but it would appropriately capture the Senate’s outrage and leave a black mark on Kavanaugh’s record.
It’s the only viable option for a punishment that fits the alleged “crime.” And it should be meted out advisedly. However heinous many might find the administration’s legal legacy in the war on terror, retroactive campaigns against sitting judges should not be undertaken lightly. It’s too easy to find proxies for disagreement with a judge’s philosophy.
Lifetime tenure, prosecutorial immunity and judicial independence are principles of vital importance for preserving equal justice under the law. We can, and should, forge new ways to keep judges accountable. But we can’t destroy the bench in order to save it.
