In 2006, Brett Kavanaugh told a Senate committee that he wasn’t “primarily” involved in shepherding the nomination of controversial circuit court nominee Charles Pickering when Kavanaugh worked in the George W. Bush White House. But emails released Wednesday show that Kavanaugh conducted meetings with Republican senators and was closely engaged in Pickering’s nomination.
Democrats are now arguing that Kavanaugh was not forthright under oath during his confirmation hearings to be a circuit court judge more than a decade ago, and are zeroing in on his work on behalf of Pickering. The Mississippi judge faced questions at the time about his record on civil rights and was blocked by the Senate after Bush nominated him.
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During his confirmation hearing in 2006, Kavanaugh told senators that Pickering was “not one of the judicial nominees that I was primarily handling” as part of his work in the White House counsel’s office. A New York Times report last month raised questions about that statement, citing internal White House emails from the time.
Since then, additional emails have surfaced, including more than two dozen released on Wednesday that show Kavanaugh strategized on Pickering’s behalf, including by meeting with Senate staffers regarding his nomination, and fretted over the judge’s confirmation prospects.
Nothing in the emails directly contradicts Kavanaugh’s testimony before the Senate when he was a circuit court nominee. Democrats say the documents show Kavanaugh was less than forthcoming about his role in the Pickering confirmation, though the judge’s defenders say he was truthful and not obligated to elaborate.
At his Supreme Court confirmation hearings last week, Kavanaugh was not asked by Democrats about the emails, in part because they said some were provided shortly before the hearings while others were still being held within the committee and not made available for public consumption.
According to confidential documents provided by Sen. Cory Booker (D-N.J.), Kavanaugh met with staff of former GOP Sen. Lincoln Chafee of Rhode Island and planned to meet with Sen. Susan Collins of Maine regarding the Pickering nomination. Booker said on Wednesday that the documents show Kavanaugh “misled the Senate Judiciary Committee.”
In one email, dated Jan. 21, 2003, Kavanaugh wrote to then-White House counsel Alberto Gonzales that he and another White House staffer “had a good meeting today with Chafee people about [nominee Priscilla] Owen and Pickering (and we meet with Collins people tomorrow).”
“One of the Chafee people made the point that we should try harder to get out the facts about Pickering, which he said were ‘impressive and compelling,’” Kavanaugh continued.
Kavanaugh also attached to that email a draft op-ed written by Gonzales defending Pickering, whose nomination was defeated on the Senate floor over Democratic concerns about his civil rights record. Bush eventually gave Pickering a recess appointment, though he served for less than a year.
Pickering told National Review in August that he “cannot recall a single interaction with Brett Kavanaugh about my judicial nomination.” Sen. Orrin Hatch (R-Utah), who was the Judiciary chairman at the time, said on Wednesday he didn’t remember whether his committee worked with Kavanaugh on the Pickering nomination.
White House spokesman Raj Shah said “Judge Kavanaugh never argued he had no involvement whatsoever in Judge Pickering’s nomination, he said he wasn’t ‘primarily handling’ it.”
“The fact that 30 unique people are on these leaked emails, and surely there couldn’t be 30 people ‘primarily handling’ it, undercuts the Democrats’ entire argument,” Shah said.
When questioned last week about his work to confirm another controversial judge, William Pryor, Kavanaugh explained that one person in the counsel’s office would handle each judicial nominee’s confirmation process. But the White House said that doesn’t preclude a lawyer in the office from doing some work on other nominations.
The White House said Noel Francisco, now the U.S. solicitor general, was the lead White House lawyer on the Pickering nomination. But Democrats question why Kavanaugh was sometimes the only associate counsel included on emails about Pickering’s confirmation; Francisco is not always copied in the newly released emails, though he is included on a handful of them.
“These latest documents raise more serious and concerning questions about Judge Kavanaugh’s honesty before the Senate Judiciary Committee. It is clear that Kavanaugh was far more involved than he previously claimed with the nomination of a controversial federal judge who once defended a state law banning interracial marriage and campaigned for an avowed segregationist,” Booker said in a statement.
In December 2002, before Pickering was renominated, Kavanaugh wrote that it was important that “judge” see an email strategizing on how Hatch should talk about Pickering on TV. And on Jan. 27, 2003, as the American Bar Association said it would give new ratings for nominees, Kavanaugh said: “I fear a ‘new rating’ on Pickering.”
On April 25, 2003, Brian Benczkowski of the Justice Department emailed Kavanaugh informing him that Pickering was asking about travel plans to testify before the Senate. Benczkowski offered to call Pickering back, but not “without your blessing and instructions.”
Three days later, Kavanaugh told Gonzales to talk to White House Capitol Hill liaison David Hobbs and Hatch about the timing of Pickering’s nomination. No one else was included on the email.
Other emails show that Kavanaugh was kept apprised of progress on Pickering’s nomination. On March 12, 2003, Kavanaugh and other White House staff set up a meeting with then-Rep. Chip Pickering (R-Miss.), the judge’s son. And on April 29, 2003, Kavanaugh was informed by White House special assistant Wendy Grubbs that Pickering’s nomination hearing had been moved back; no other White House staffers were included on the email.
Other emails show that Kavanaugh helped place pro-Pickering op-eds and stories.