After the release of previously confidential documents relating to Supreme Court nominee Brett Kavanaugh’s record working for the Bush Administration, People For the American Way filed a complaint – as did others - that Kavanaugh misrepresented his record in testifying before the Senate Judiciary Committee. But there is more Kavanaugh testimony that casts significant doubt on whether he can be trusted. In at least half a dozen cases, Kavanaugh misrepresented or distorted his own opinions on the DC Circuit, either in testimony or in written responses to Committee questions both before and after the hearing.
Take the issue of presidential power. Kavanaugh was asked by several senators about his dissent in one of the cases before him concerning the Affordable Care Act. In that case, Seven-Sky v. Holder, he stated that a president has the power to “decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.” Repeatedly, Kavanaugh claimed at the hearing that he was simply referring in his dissent to “prosecutorial discretion” as to whether to bring a case, as established by Supreme Court rulings including US v. Nixon. But as Senator Blumenthal and others pointed out, that is not what the dissent said. Indeed, rather than citing any case concerning prosecutorial discretion, the dissent cited a concurring opinion by Justice Scalia that asserted that in addition to vetoing legislation, a president can exercise the “power to disregard” laws that he thinks “are unconstitutional.”
In other words, as Sen. Blumenthal pointed out, the dissent suggested that a President can “nullify” a law he does not like, such as the Affordable Care Act. As Senator Durbin pointed out in post-hearing questions for the record, Kavanaugh’s dissent was making a “breathtaking” claim of presidential power. But Kavanaugh continued to misread his own dissent before the committee and in post-hearing written questions. In fact, Kavanaugh’s dissent was disturbingly similar to the position taken in President Bush’s signing statement on the McCain anti-torture act, which Kavanaugh admitted to Sen. Leahy he had been involved in and which suggested the President could decline to enforce that law In some circumstances.
Kavanaugh was also asked about his dissent in the Sea World case, where he claimed that it was improper for the Occupational Safety and Health Administration to take action on unsafe working conditions for whale trainers that caused the death of a Sea World trainer. At the hearing, Kavanaugh told Sen. Feinstein that according to his dissent, OSHA could have taken action if Congress specifically authorized it, “or the Labor Department could change its precedent.” But that is not what Kavanaugh’s own dissent said. Instead, the dissent claimed that only Congress could take action to allow OSHA to act, and that “[u]nder current law, it is not the Department of Labor” that can do so. As the majority explained, both Congress and the Department of Labor had already authorized OSHA to take corrective action.
Several Republican Senators asked questions about cases in which Kavanaugh claimed he had ruled in favor of unions and environmental groups. In response to Senator Grassley, Kavanaugh claimed that his opinion had “ruled for the union against Walmart,” finding that the company had “engaged in unfair labor practices” in UFCW v. NLRB. In fact, UFCW has long been recognized as an anti-union decision, since Kavanaugh ruled for the union only on one small issue and rejected the primary claim that Walmart was required to continue to bargain with meat cutters who had formed the first union ever in a Walmart store.
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Similarly, in response to a question from Senator Hatch, Kavanaugh claimed he had “ruled for environmental interests” and groups in NRDC v. EPA by finding that the EPA did not have the authority to create an affirmative defense for accidental emissions in civil suits. But Kavanaugh’s description omitted the fact that his opinion ruled against the environmental groups on the primary substantive issue in the case, as to which Kavanaugh upheld weakened pollution limits according to NRDC’s co-counsel in the case. In response to a subsequent written question from Sen. Whitehouse asking Kavanaugh to identify the “environmental interests” in favor of which he ruled and the “substantive grounds” for that in the NRDC case, Kavanaugh actually stated that they included the ruling that the “emissions-related provisions of the EPA’s rule were permissible,” even though those very provisions were opposed by environmental groups.
Kavanaugh also misrepresented his opinion in an important privacy case about whether the police need a warrant to use a GPS device to track a suspect, United States v. Jones. Kavanaugh told both Sen. Flake and Sen. Leahy that he “wrote an opinion” in the case that “recognized that putting a GPS tracker on your car” was “an invasion of your property” and ”therefore was something that violated the Fourth Amendment.” As Senator Leahy recognized in his post-hearing questions for the record, however, that was not what Kavanaugh had said. Kavanaugh had dissented from a decision not to have the full DC Circuit rehear the case, made clear that he disagreed with the ruling to require the police to get a warrant, and suggested that the full court should consider the property rights theory, but noted explicitly that “I do not yet know whether I agree” that the police putting a GPS tracker on an owner’s car violated the Fourth Amendment. In response to Sen. Leahy’s written question about whether his opinion really did state that placement of the device violated the Fourth Amendment, as he had claimed at the hearing, Kavanaugh did not answer directly but repeated that his opinion had suggested rehearing on the issue and claimed that the Supreme Court ultimately agreed with the theory.
Finally, in his pre-hearing response to the committee’s questionnaire, Kavanaugh claimed that “the position expressed in my opinion” in dissent in the Priests for Life case “was later adopted by the Supreme Court.” That assertion is incorrect. Kavanaugh’s dissent in that case argued that a federal regulation requiring religiously-affiliated organizations that objected to the Affordable Care Act mandate to provide contraceptive coverage to fill out a form notifying insurers of their objection is a violation of the Religious Freedom Restoration Act (RFRA). Although the Supreme Court later vacated the decisions of the DC Circuit and a number of other courts on the issue, it clearly did not “adopt” the position in his opinion. To the contrary, the Court made clear in Zubik v, Burwell that it was vacating the rulings so that the parties could try to negotiate a solution, and expressly stated that it was expressing “no view” on the merits of the case, despite Kavanaugh’s claims otherwise.
What Americans want most in a Supreme Court justice is someone with an open mind who is honest and can be trusted. Senators, including those who have not yet decided how to vote on the nomination, have expressed similar views. But if a nominee cannot even honestly describe his own opinions in sworn testimony, and instead misrepresents or distorts them to help win confirmation, how can he be trusted with a lifetime appointment to the highest court in the land? It is clear Brett Kavanaugh cannot.