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Despite objections to holding confirmation hearings for Brett Kavanaugh to the U.S. Supreme Court amid the withholding of documents from his time at the Bush White House and mounting scandals facing President Trump, the Senate is nonetheless poised to begin its public questioning of the nominee next week. The Senate Judiciary Committee is moving forward with hearings — scheduled from Tuesday to Friday — as Republican leaders push to have a floor vote on his confirmation before Election Day — after which control of Congress could change.
LGBT groups and Democrats — who oppose Kavanaugh based on fears his confirmation would tilt the Supreme Court in a more conservative direction — are insisting the hearings be delayed until the Trump administration makes public the entirety of Kavanaugh’s records of his time during the George W. Bush administration, including when he served as staff secretary from 2003 to 2006 at the White House.
With Kavanaugh’s 12-year record as a circuit judge on the U.S. Circuit Court of Appeals for the D.C. Circuit scant on LGBT rulings, those Bush administration records may be more revealing on his work or thoughts on LGBT policy. After all, that was the time the U.S. Supreme Court struck down state anti-sodomy laws in the Lawrence v. Texas decision and Bush was pushing a Federal Marriage Amendment that would have banned same-sex marriage nationwide.
Additionally, the Bush administration was taking heat at this time for use of torture in interrogation of terrorist suspects, warrantless wiretapping and misleading the American public in motivations for the Iraq war.
Sasha Buchert, staff attorney for the LGBT legal group Lambda Legal, cited those Bush administration initiatives, saying with Kavanaugh up for an appointment to the Supreme Court the availability of those documents is “really, really critical.”
“We don’t have adequate information,” Buchert said. “For our lane specially, we don’t know his involvement in so many of those Bush-era scandals, so it’s critical that this not move forward without us knowing his full involvement.”
Among the documents revealed so far suggest Kavanaugh had a hand in Bush administration policy in which the Salvation Army requested an exemption from local non-discrimination laws to discriminate against LGBT people and still receive federal funds. Although then-White House spokesman Ari Fleischer said in 2001 the administration had decided “not to proceed with the Salvation Army request,” the records suggest Kavanaugh developed an alternate policy for the Bush White House allowing a religious exemption, which would be consistent with a leaked report at the time from the Salvation Army.
In July 2001, White House counsel Bradford Berenson wrote in an email to fellow White House counsel Jay Lefkowitz he hadn’t seen an inquiry from House Democrats on the Salvation Army issue, but “if it’s on faith-based, Brett is talking point.” In a subsequent exchange with Berenson, Kavanaugh wrote, “We have mapped out a preliminary strategy.”
Buchert said the email exchange about Kavanaugh’s involvement on the Salvation Army issue is revealing.
“It’s clear that he had extensive involvement in that issue and likely many others, this is just the tip of the iceberg,” Buchert said.
Senate Democrats have also asserted the withholding of documents stands in contrast to the confirmation process for U.S. Associate Justice Elena Kagan, who was
required to hand over documents related to her time at the Clinton White House. According to Senate Democrats, only six percent of Kavanaugh documents have been made public.
Calls for delay are also based on recent developments suggesting President Trump may have engaged in unlawful activity in the 2016 election. Chief among them is Trump lawyer Michael Cohen’s pleading guilty to criminal violations of campaign finance law, which Cohen asserted as part of a plea deal was done at Trump’s request. Harper Jean Tobin, director of policy for the National Center for Transgender Equality, cited both the legal troubles facing Trump and the withholding of Kavanaugh documents as reason to suspend the hearings.
“This entire process has already been farcical at best, and attempting to keep Judge Kavanaugh’s record a secret is an extreme step that ignores the will of the American people,” Tobin said. “Given the severity of the legal crisis facing the top levels of this country’s leadership, these hearings must be suspended at least until Judge Kavanaugh’s full records have been made available to the public.”
But those calls for delays aren’t enough to persuade Republicans to hold off on the Kavanaugh hearings. Sen. Charles Grassley (R-Iowa), chair of the Senate Judiciary Committee, said in a statement he’s “not going to delay Judge Kavanaugh’s confirmation” because the calls for delays are disingenuous.
“Minority Leader Schumer said he’d fight Judge Kavanaugh with everything he’s got,” Grassley said. “Some members of this committee announced their opposition before giving him any consideration whatsoever. The goal has always been the same: Delay the confirmation process as much as possible and hope Democrats take over the Senate in the midterm elections.”
Grassley disputed the Trump administration wasn’t forthcoming in the confirmation process when compared to the process for confirming Kagan, denying only 6 percent of the Kavanugh documents were released.
“We have received almost three times the number of pages for Judge Kavanaugh than we received for Justice Kagan,” Grassley said. “This is on top of the fact that we have Judge Kavanaugh’s 12-year judicial record to look at, while we didn’t have any judicial writings to review for Justice Kagan. This is the most transparent and open Supreme Court confirmation process of all time.”
The Senate considers the Kavanaugh nomination as the U.S. Supreme Court may take up major LGBT cases in the coming years. Among them are cases challenging
Trump’s transgender military ban, lawsuits seeking clarification on whether federal statutes against sex discrimination — such as Title VII and Title IX — cover LGBT people and “religious freedom” litigation seeking a First Amendment right to discriminate against LGBT people despite non-discrimination laws.
Although the Supreme Court already decided in the Obergefell v. Hodges case of 2015 that marriage equality is the law of the land, new cases seeking to compromise that ruling may also come before justices. Among them is Turner v. Pidgeon, a case percolating in the Texas judiciary challenging spousal health benefits for Houston city employees in same-sex marriages and whether the Obergefell decision applies to those benefits.
A number of Senate Democrats — including Kamala Harris (Calif.), Amy Klobuchar (Minn.), Sherrod Brown (Ohio), Claire McCaskill (Mo.) — as well as Sen. Susan Collins (R-Maine), who support LGBT rights, have already met with Kavanaugh to question him privately ahead of the confirmation hearings. Only Brown’s office responded to the Washington Blade’s request for comment on whether senators in the meetings brought up LGBT issues, like same-sex marriage. Jenny Donohue, a Brown spokesperson, said those issues did come up and the Ohio Democrat wasn’t happy with the responses.
“Sen. Brown raised concerns with Judge Kavanaugh during their meeting about his take on settled law and civil rights, in the context of everything from worker rights to marriage equality,” Donohue said. “Sen. Brown was not satisfied with Kavanuagh’s answer and he will not support someone for the high court who would take rights away from Ohioans.”
Gregory Angelo, president of Log Cabin Republicans, said his organization will be looking to hear from Kavanaugh himself on LGBT issues during his confirmation hearings.
“The main things Log Cabin Republicans will be looking for is how Judge Kavanaugh answers questions regarding the Supreme Court’s Windsor and Obergefell rulings, in addition to questions regarding the balance between religious liberty and LGBT equality,” Angelo said. “Questions regarding the application of the definition of ‘sex’ to LGBT non-discrimination principles will also be on our radar.”
Asked how Kavanaugh’s answers to those questions will factor into whether Log Cabin will support the nominee’s confirmation, Angelo replied, “I’d rather wait and see how he answers until jumping to conclusions about hypotheticals.”
This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.