Brett Kavanaugh Really Didn't Want to Talk About the Federalist Society
"I was the president's nominee. I know he consulted widely—very widely—to get input at least on the people who were finalists," Kavanaugh said Wednesday during an exchange with Sen. Sheldon Whitehouse, D-Rhode Island.
September 05, 2018 at 03:08 PM
4 minute read
U.S. Supreme Court nominee Brett Kavanaugh was pressed Wednesday about what role, if any, the conservative Federalist Society played in his nomination.
Sen. Sheldon Whitehouse, D-Rhode Island, questioned Kavanaugh about comments White House Counsel Donald McGahn made in November that rejected the contention the White House has “outsourced” judge-picking to the Federalist Society. The group has been a major influence in the Trump White House selection of judicial nominees.
“I've been a member of the Federalist Society since law school—still am,” McGahn said then. “So frankly, it seems like it's been in-sourced.”
Whitehouse noted that Kavanaugh had said in the past that it was improper to give one group a preferred position in the nomination process.
Kavanaugh couldn't answer questions about what McGahn meant by the remarks and he said he did not know the “specifics” of the role played by Leonard Leo, executive vice president of the Federalist Society and now an adviser to the president on judicial nominations.
“President Trump made the nomination. I know he spent a lot of time in those 12 days on this issue. I also know Mr. McGahn was directly involved with me.”
Kavanaugh stressed a couple of times that he was discussing his own process, suggesting that he was aware the Federalist Society participated in crafting lists of judges Trump should consider for the courts. He also noted that many lawyers throughout the Trump administration are members of the Federalist Society.
Trump published two lists of potential Supreme Court nominees. Kavanaugh was not on the first list. His name first appeared on a list in November 2017. Kavanaugh, responding to a question from Sen. Mike Lee, R-Utah, who himself was recently considered for the Supreme Court, said nobody from the Federalist Society spoke with him after Justice Anthony Kennedy announced his retirement in late June.
In recounting his own selection process, Kavanaugh, a member of the Federalist Society since 1988, said he received a phone call from McGahn, who subsequently went to the federal courthouse and spoke with Kavanaugh for three to four hours.
“I was the president's nominee. I know he consulted widely—very widely—to get input at least on the people who were finalists,” said Kavanaugh, who served as co-chair of the Federalist Society's school choice subcommittee, religious liberties practice group from 1999 to 2001. Kavanaugh has spoken regularly at Federalist Society-sponsored events.
Heritage Foundation senior legal fellow John Malcolm helped the Trump administration craft its Supreme Court shortlists. Malcolm, director of the Meese Center for Legal & Judicial Studies, pointed to several rulings from Kavanaugh—questioning the power of federal agencies—that made him an attractive candidate.
“Those are topics that I know are of interest to the president and White House Counsel Don McGahn, so perhaps those decisions and his stellar record caused him to rise in the president's esteem,” Malcolm told The National Law Journal this year.
Whitehouse asked why the Bush White House stopped using the American Bar Association in its judicial nomination process. Prior presidents had given the ABA advance notice of nominees for the purpose of that organization's rating of a nominee's qualifications.
Kavanaugh said the Bush White House believed it was inappropriate to continue that practice because the ABA often was an amicus party in cases before the Supreme Court.
Whitehouse also pressed Kavanaugh on whether it should give him or anyone “pause” on the role of large corporate donors in the nomination and confirmation process, particular since those donors' identities do not have to be disclosed.
“First and foremost, that is a policy question for Congress,” said Kavanaugh, adding that the legislative branch can enact disclosure rules.
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