U.S. Court of Appeals for the D.C. Circuit Judge Brett Kavanaugh, left with Miguel Estrada of Gibson, Dunn & Crutcher, on a panel discussion in 2015 titled “A Conversation on Judging.” Photo by Diego M. Radzinschi/ALM

Rumors in June 2003 predicting Chief Justice William Rehnquist would soon retire from the U.S. Supreme Court were multiplying so fast that then-White House official Brett Kavanaugh circulated a draft statement wishing Rehnquist well.

“Chief Justice Rehnquist's vision, leadership and opinions have had an enormous and enduring impact on American life and American law” according to the statement Kavanaugh sent to another White House official.

The tribute turned out to be premature. Rehnquist stayed on the court until he died in September 2005. Rumors that Justice Sandra Day O'Connor would retire soon were also prevalent in 2003, but she retired in January 2006.

Documents released by the Senate Judiciary Committee on Sunday from the office of former President George W. Bush in advance of Kavanaugh's Supreme Court confirmation hearing next month reveal a heightened-alert atmosphere inside and outside the White House surrounding the speculation that Supreme Court vacancies would soon open up. In an earlier email, from 2001, Kavanaugh predicted—”for the archives”—that Rehnquist was retiring on a specific day at the end of that year's term.

The records released over the weekend show reporters peppered press secretary Ari Fleischer with questions about imminent departures, and Democratic Senate leaders demanded that they be consulted before any replacements were picked.

Bill Frist, then-Senate Majority leader, issued a memo spelling out the “fair and orderly process” that would be used to handle nominations. Speculation about who would replace the justices ranged from White House counsel Alberto Gonzales to Janice Rogers Brown, then a California state Supreme Court justice who would be appointed to the U.S. Court of Appeals for the D.C. Circuit.

On June 20, 2003, just six days before the end of the Supreme Court term, Kavanaugh sent out an email, perhaps as a model for the Rehnquist statement, containing the text of what President George H.W. Bush said in 1991 when Justice Thurgood Marshall retired. Bush's statement extolled Marshall's “extraordinary and distinguished service to his country as a pioneering civil rights leader” among other achievements.

Responding to Kavanaugh, in what was likely an attempt at humor, then-deputy White House counsel David Leitch replied: “I guess we can insert the chief's name into this, right?”

Leitch also commented on Kavanaugh's draft farewell to Rehnquist, which was circulated on the morning of June 26, 2003, the final day of the court's term. The statement included this sentence: “As a jurist for more than 30 years, Chief Justice Rehnquist has faithfully interpreted the Constitution … to maintain the constitutional separation of powers.”

Leitch, himself a former Rehnquist clerk, told Kavanaugh by email: “I love the guy, but it's hard for me to think that the author of Morrison v. Olson should be praised” for maintaining separation of power. Leitch, who clerked for Rehnquist in 1986 and 1987, is now global general counsel to Bank of America Corp.

Chief Justice William Rehnquist (2003). Credit: Stacey Cramp

Morrison v. Olson, a 1988 decision, found that the appointment of independent counsels by the attorney general under the Ethics in Government Act of 1978 was constitutional. The provision of the law that authorized independent counsels expired in 1999, but the controversial ruling has continuing importance. In a decision issued Monday, a federal district court judge cited the Morrison case as she upheld the appointment of Robert Mueller as special counsel to probe Russian interference in the 2016 election.

Kavanaugh, who clerked at the Supreme Court while Rehnquist was chief justice, once described Rehnquist as his “judicial hero.”

 

Read more:

Brett Kavanaugh's SCOTUS Confirmation Hearing Is Set for Sept. 4

Akhil Amar, Liberal Prof at Yale Law, Would Testify for Kavanaugh If Asked

Arnold & Porter's Lisa Blatt Steps Into Fray, Backing Kavanaugh Nomination

A Record Number of SCOTUS Clerks Are Likely This Term—Thanks to Kennedy

Kavanaugh's Clerk Hires: Inside the Diverse, Ivy-Heavy Group of 48