While it is almost a foregone conclusion that the United States Supreme Court nominee, Judge Brett Kavanaugh, will sit on the highest court in the nation if his hearing takes place prior to mid-term elections. However, there may be reason to believe he does not deserve that honor. According to an investigation by the Washington Post, his judicial ethics may be in question. If the Washington Post and other news outlets are correct, Kavanaugh may have perjured himself in a confirmation hearing taking place in 2006, or at least provided misleading answers, and he may have heard cases he should have recused himself from.
For anyone late to the show, Kavanaugh was the George H. Bush/Dick Cheney West Wing White House staff secretary for three years. Throughout his tenure, issues regarding the use of Guantanamo Bay, black sites, and torture were focal points. During Kavanaugh’s confirmation hearing for his appointment as a judge on the United States Court of Appeals for the District of Columbia Circuit, he stated under oath to the Senate that he had no involvement in discussions with anyone in the administration about said issues. It turns out, that he did, in fact, have discussions about those issues with administration officials, and may have even shaped policy regarding them.
The problem is, none of that can be brought up in his confirmation hearing because right now, any proof of that is considered classified. Unlike every other Supreme Court nominee, including the most recent, Justice Neil Gorsuch, all records regarding their careers, both in government and the civil sector, in addition to all available information on their private lives was made available to the Senate on demand, as well as the public. For Kavanaugh, significant portions of his records have been classified and restricted to only the judicial committee by its chairman Chuck Grassley (R-Iowa).
According to MSNBC, Senators Dianne Feinstein (D-Calif.), Patrick Leahy (D-Vt.) and Dick Durbin (D-Ill.), made a request for Kavanaugh’s full records to be made available to the public, or at least the full Senate, and tried to get Grassley to endorse the request, which he chose not to do.
“We firmly believe that Judge Kavanaugh’s nomination cannot be considered unless these documents are available, including to the public and the Senate as a whole.” The senators strongly urged Chairman Grassley to support their “request for Judge Kavanaugh’s Staff Secretary records and to publicly release documents from Judge Kavanaugh’s time in the White House in the same manner as was done for all previous Supreme Court nominees. The truth should not be hidden from the Senate or the American people.”
As the Rachel Maddow Show reported in July, many news outlets have pieced together that Kavanaugh was at the very least misleading in how he answered questions during his previous confirmation hearing. While it is too soon to say with any conviction that he perjured himself, the evidence to convict or clear him of that is locked away where the people entrusted with deciding his fitness as a fair and honest jurist cannot see it. Which ties into the second worry about Kavanaugh, which is he may have heard cases he shouldn’t have.
As cases against the government regarding torture would appear on his docket, he should have recused himself from the hearings. The reason is that he potentially had say in shaping the laws that governed the use of torture or policy allowing certain things to even exist while White House staff secretary, putting his impartiality in doubt.
From any angle this confirmation process of Kavanaugh is viewed, most political analysts and a number of jurists have pointed out that the lengths that are being taken to conceal his record while serving in the White House are unsettling. So is potential evidence that he may have perjured himself or exercised poor judicial ethics. As of this time, FOIA requests for the records in question have been denied and it appears as though Grassley has no intention of making a request that will allow the records to be made public or available to the Senate.
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