In reporting and editorializing on the Senate Judiciary Committee's May 9 hearings to consider President Bush's nomination of White House staff secretary Brett Kavanaugh for a seat on the U.S. Court of Appeals for the D.C. Circuit, The Washington Post and The Washington Times each offered incomplete, inaccurate, and misleading portrayals of Kavanaugh's nomination and of Kavanaugh himself.
In reporting and editorializing on the Senate Judiciary Committee's May 9 hearings to consider President Bush's nomination of White House staff secretary Brett Kavanaugh for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, The Washington Post and The Washington Times each offered incomplete, inaccurate, and misleading portrayals of Kavanaugh's nomination and of Kavanaugh himself.
Kavanaugh first received a hearing in April 2004, but his nomination lapsed when the Republican-controlled Judiciary Committee did not schedule his nomination for a vote. On May 4, 2006, committee chairman Arlen Specter (R-PA), according to a May 5 Bloomberg News article, "acceded ... to Democratic demands to hold a second hearing on the appeals court nomination of a White House aide, Brett M. Kavanaugh." According to the Bloomberg article: "Democrats said they wanted to question him about what role, if any, he might have played in devising policies for detaining and interrogating suspected terrorists and for electronic eavesdropping to help fight terrorism."
In his May 9 Post article, staff writer Charles Babington noted that Kavanaugh worked for independent counsel Kenneth Starr during the Whitewater investigation, and that Democratic "mistrust of Kavanaugh stems from those days." Babington went on to report: "[S]ome colleagues say he was less aggressive than Starr. According to several accounts, Kavanaugh unsuccessfully urged Starr to withhold the scandal's more tawdry details from Congress and the public." But Babington did not note that these accounts differ from his public statements, in which Kavanaugh defended the content of the Starr report in its entirety. As an Alliance for Justice (AFJ) report on Kavanaugh noted, Kavanaugh stated on the September 9, 1999, edition of CNN's Burden of Proof that the Starr report was "a group [effort]. ... We assessed the evidence and put together in a -- by consensus a report that said there were substantial and credible information that may constitute grounds for impeachment. When we did that report, our goal was to be thorough, it was also to be fair, and we think we accomplished both of those goals." Although Kavanaugh has stated that it was a mistake for Congress to release the details of the Monica Lewinsky controversy to the public, he has never publicly stated that it was a mistake for Starr to have included them in his report to Congress.
Babington reported on May 10 that Kavanaugh addressed the Starr investigation at the May 9 hearing:
Kavanaugh also said that his previous boss and mentor -- former independent counsel Kenneth W. Starr -- should have been confined to the Whitewater investigation and not headed subsequent investigations into Clinton administration scandals involving the White House travel office and intern Monica S. Lewinsky. The public came to see Starr as a permanent prosecutor of Bill Clinton, he said, and it "harmed the credibility of the investigation."
A May 9 Post editorial endorsed Kavanaugh's confirmation and attempted to dismiss Kavanaugh's critics. According to the Post editorial:
Yet Mr. Kavanaugh is a talented attorney. He has been involved in controversies, but he does not appear to be an ideologue. While Democrats complain that his experience is thin, it is no more so than others who have won confirmation and served on that court. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) is holding a second hearing on Mr. Kavanaugh's nomination today. If it produces nothing new, he should be confirmed.
As Babington's article noted but the Post editorial did not, on May 8, the American Bar Association (ABA) downgraded Kavanaugh's rating from "Well Qualified" to "Qualified," citing his lack of experience. According to a May 9 New York Times article: "[ABA ratings committee chairman] Mr. [Stephen] Tober attributed the change to new interviews the committee members conducted with judges and lawyers, some of whom suggested that Mr. Kavanaugh, 41, was too inexperienced for the job and described his courtroom performance as 'less than adequate.'"
A May 9 Washington Times article by reporter Charles Hurt attempted to spin Kavanaugh's ABA ratings demotion as being motivated by ABA ratings panel member Marna Tucker's Democratic partisanship. According to Hurt's article:
Republicans expressed little concern over the new rating, partly because Mr. Kavanaugh remains "qualified" and partly because they have long contended that the ABA has such a liberal bent.
Washington divorce lawyer Marna S. Tucker, a registered Democrat, conducted the most recent interview of Mr. Kavanaugh and delivered testimony on behalf of the ABA over the telephone yesterday for the Judiciary Committee hearing today.
Ms. Tucker has donated more than $10,000 to Democratic candidates and causes, according to Federal Election Commission records at www.politicalmoneyline.com, a Web site that tracks campaign contributions. She has never given to Republicans, according to the site.
The Washington Post described her as a "prominent liberal" in 1991 and the following year noted her friendship with Hillary Rodham Clinton, now a Democratic senator from New York.
Ms. Tucker also is a founding member and board director of the National Women's Law Center, an organization committed to abortion rights and other liberal causes.
Hurt's suggestion of partisanship in the ABA's rankings, however, is undercut by the fact that Tucker was among the 13 ABA panelists* who rated Supreme Court Justice Samuel A. Alito Jr. "Well Qualified" in January -- just prior to Alito's Supreme Court nomination hearings. Tucker also testified on Alito's behalf at the Senate hearings and rebutted the suggestion that Alito's membership in Concerned Alumni for Princeton was an indication of "bigotry" or "prejudice." From Tucker's January 12 testimony:
TUCKER: But I should say, in fairness, we were very concerned about the membership of that and what happened. And all of the people we spoke to on the courts -- women and minorities, people who he had worked with, people who had sat on panels with him side by side in issuing judicial opinions -- almost universally said that they saw no bigotry, no prejudice. They thought he was a fair man. And they felt that if he did put that -- they were shocked when they heard that that was listed on his application, and they said that is not the Sam Alito we know. And we heard that time and time again.
*There are 15 ABA ratings panelists, but Roberta D. Liebenberg, the panel's Third Circuit representative, recused herself from the Alito investigation, and panel chairman Stephen L. Tober votes only if the panel is equally divided, which it was not in Alito's case.