That the Democrats would oppose Brett M. Kavanaugh, nominee to the D.C. Court of Appeals and the latest casualty in the judicial appointment war, is expected — he was right-hand man to Kenneth Starr. But with Bush and the GOP saddling up to make blocked judicial nominees an issue in 2004, the Dems need more to go on than Kavanaugh’s Starr-studded past. So, what’s their pretext for binning him? If left-leaning interest groups and media are a barometer for Democratic Party sentiments, the pretext is manufactured inexperience.
“It is certainly true that he is quite inexperienced,” says Elliot Mincberg, vice-president and legal director of People for the American Way. “He has had relatively little practice working outside of the White House.”
The New York Times followed suit, echoing the protest.
“The main items on an otherwise thin résumé,” claimed the Times, “are Mr. Kavanaugh’s loyal service to Mr. Starr during the divisive investigation of President Bill Clinton and, later, his loyal service as an assistant to President Bush, in which capacity he has helped engineer the confirmation of administration judicial nominees.”
But is it true? Or does Kavanaugh’s résumé have much more on it than that?
Kavanaugh, 38, began his legal career with an undergraduate and graduate degree from Yale University. He clerked for Judges Walter K. Stapleton and Alex Kozinski on the Third and Ninth Circuit U.S. Court of Appeals, respectively. He was an attorney in the Solicitor General’s office, and worked under Supreme Court Justice Anthony Kennedy. He made partner at Kirkland & Ellis — one of the nation’s top firms. And he did all this in just over a decade.
So, how does Kavanaugh stack up against the sitting Democrat-appointed members of the court?
In 1994, Clinton nominated Judge David S. Tatel. Tatel’s résumé is long, but on close inspection, it appears he wore big hats, but drove few cattle. During Tatel’s 28-year career prior to his nomination, he spent 24 years in private practice.
According to his official bio, he never clerked for a judge — Supreme Court, Appellate Court, or otherwise — and his courtroom experience was from the wrong side of the podium.
Harry T. Edwards, a Carter nominee, took his seat on the court in 1980. Before his nomination, he taught for a brief stint and was in private practice. As Chairman of Amtrak and as a labor arbitrator, he spent the bulk of his time in business. Only after his nomination did Judge Edwards author four books and publish scores of law review articles.
Only after his nomination did he teach at Duke, Pennsylvania, Georgetown, and NYU.
What’s more, Senate Democrats have voted favorably on past nominees for the D.C. Court of Appeals who seem less qualified.
Take Elena Kagan, the 1999 Clinton nominee whose blocked appointment is likely what Democrats want to avenge with the Kavanaugh battle. Kagan received her degree from Harvard Law School, and although she clerked for the venerable Justice Thurgood Marshall, her career consisted largely of teaching at the University of Chicago before she became Associate Counsel and Deputy Assistant to then President Clinton. With a scholarly understanding of the law, but a seeming far less practical knowledge of it, Kagan, at the time, was in many ways less experienced than Kavanaugh is today. Still, Senator Leahy — the Democrats’ point man on judicial skirmishes — said the following of Kagan and her fellow Clinton nominees (according to the Congressional Record): “They are outstanding. They have demonstrated more than most people who get confirmed in this body, Republican or Democrat, how well qualified they are.”
In a confirmation war between Bush and the Senate, the Democrats are afraid to budge. Miguel Estrada, Priscilla Owen and William H. Pryor, Jr. are lost in filibuster limbo after their combined 11 cloture votes failed. More Bush nominees have waited over a year for a hearing than in the fifty previous years combined. Clearly, when it comes to Bush nominees for prominent appellate courts, the Democrats intend to block not some, but nearly all.
Expect more falsehoods about Kavanagh’s qualifications. Dems know exactly how much experience he has, and that is what frightens them: namely, that he’ll use his aptitude to aid other conservative judges in ratcheting down the imperial judiciary a couple of pegs. The last thing they want to experience is an impressive 38-year-old Bush appointee beginning a long career on the federal bench.
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