Wednesday, August 22, 2018

How Will Republicans Try to Render Kavanaugh's Lewinsky Memo Irrelevant?

by Michael C. Dorf

My latest Verdict column unpacks and critiques the justification then-attorney Brett Kavanaugh gave in his recently released 1998 memo to Ken Starr for not "going easy" on President Bill Clinton and instead proposing to ask Clinton such dignity-of-the-office-restoring questions as this: "If Monica Lewinsky says that you masturbated into a trashcan in your secretary's office, would she b[e] lying?" Kavanaugh said he was outraged by Clinton's behavior, which warranted the tough questions. The ostensible point of these questions was to show that Clinton had lied in his deposition in the Paula Jones case when he denied a sexual relationship with Lewinsky. As I explain in the column, that won't wash. It would have been simple to ask questions of Clinton that would expose him as lying without proposing seven out of ten questions focusing on precisely what sex acts were performed where.

In my column, I consider the possibility that the 1998 memo by attorney Kavanaugh is not relevant to the confirmation of Judge Kavanaugh to be Justice Kavanaugh today. I discuss a 2009 Minnesota Law Review article in which Judge Kavanaugh explained that, after serving as staff secretary for President George W. Bush, he had come to appreciate the demands of the office of the presidency in a way that he had not fully appreciated at the time of the Starr investigation. Nonetheless, I conclude, Kavanaugh's 1998 memo remains salient today, because the Minnesota Law Review article proposed new statutory protections for the president but contended that Starr had acted properly given the law as it existed in 1998. Because Congress has not enacted the statutes Judge Kavanaugh proposed, the law as it existed in 1998 is, in the relevant respects, the same as the law today. Hence, Kavanaugh's 1998 views are a proper source of questions.

Despite the foregoing, I expect that during the confirmation hearing, Judge Kavanaugh and/or his Republican defenders will cite the 2009 Minnesota Law Review article as a basis for dismissing the 1998 memo to Starr. Part of my purpose in writing the Verdict column was to give interested Democratic Senators a basis for challenging that dismissal.

In the balance of this post, I want to respond to some other lines of defense that Judge Kavanaugh and sympathetic Senators might use to deflect questions about the where-did-Clinton-ejaculate memo and other potentially damaging material from his time working for Independent Counsel Ken Starr and in the Bush II White House.

So long as we are revisiting the Lewinsky affair, it is worth recalling some of its aftermath. Various Democrats and journalists charged that the Republicans who led the campaign against Clinton were hypocrites because they themselves had committed adultery. One obvious response to such charges was that Clinton was not being impeached for the adultery itself but for perjury and obstruction of justice in covering it up. That's a fair response as far as it goes, but it's not clear how far it goes. After all, Clinton's defenders claimed that it is simply inherent in conducting an adulterous relationship that one engages in deception, so that most people who were asked to testify about such a relationship would lie about it. According to this defense, the only reason that adultery-committing Republicans hadn't lied under oath or obstructed justice to cover up their affairs was that they had the good fortune not to be targeted by a sex-obsessed Javert of an Independent Counsel.

My column rejects that line of reasoning insofar as it purports to defend Clinton. I think that Clinton should not have been questioned about the details of his and Lewinsky's sexual conduct, but once he was so questioned, he should not have lied under oath.

Turning back to the Republican adulterers, however, we find that their focus on the perjury is not a complete defense against charges of hypocrisy. That's because the public campaign against Clinton was never only about the lying. It was also infused with condemnation of his sexual conduct.

As an aside here, I hasten to add that condemning Clinton's conduct was appropriate. Although the Lewinsky affair was consensual, the difference in power between Clinton and Lewinsky made it highly inappropriate. And other allegations against Clinton--including the Paula Jones allegation of sexual harassment and the Juanita Broaddrick allegation of rape--should have been taken very seriously.

Yet the Republican outrage against Clinton did not always distinguish between consensual and non-consensual acts. Much of it was directed at Clinton's, for lack of a better term, sleaziness. And for that, Republicans who were themselves adulterers were legitimately open to charges of hypocrisy.

That brings us to the late Congressman Henry Hyde, who chaired the House Judiciary Committee that eventually issued articles of impeachment against Clinton. In September 1998, Salon magazine broke a story about how Hyde had had an adulterous affair in the 1960s. The article quoted Hyde admitting but not apologizing for his actions and calling their surfacing an attempt to intimidate him. He described his own conduct in the four-year affair as "youthful indiscretions." Hyde was in his forties when the events described in the Salon article occurred.

If the conduct a forty-something man can be so readily dismissed, then surely Kavanaugh's 1998 memo to Starr, written when Kavanaugh was a mere babe in his thirties, can likewise be dismissed, right? Of course not. Hyde's "youthful indiscretions" contention was rightly mocked at the time. It would be equally mockery-worthy if invoked on Kavanaugh's behalf.

Kavanaugh and I are contemporaries. We both graduated from law school (he from Yale and I from Harvard) in 1990. We even worked as summer associates together at the same DC law firm in 1989. And by the late 1990s, we had both completed clerkships for (different) federal appeals court judges in the Ninth Circuit and for Justice Kennedy. To figure out whether something Kavanaugh wrote in 1998 bears on his suitability for the Supreme Court today, my natural frame of reference is thus to ask whether something I wrote in 1998 would be relevant in the extremely unlikely event that I were in his shoes.

I wrote four law review articles with 1998 publication dates. One of them was a co-authored paper in the Columbia Law Review concerning what were then fairly innovative methods of regulation. It clearly has relevance to contemporary issues, and I plan to revisit it next week in a post discussing the Trump administration's proposed Affordable Clean Energy rule.  In August 1998, when Kavanaugh proposed his dirty questions for Clinton, I was hard at work on my Harvard Law Review Foreword. Its subject was the strengths and weaknesses of the competing methodologies of textualism and purposivism in the work of the Supreme Court. Of course what I wrote there would be relevant to how I would think about cases as a judge. The mere passage of time hardly makes the views I expressed in 1998 irrelevant to my views in 2018, and the same is true of Kavanaugh.

That's not to say that someone can't change his mind. It is to say that if someone has written something substantial or controversial while he was an adult professional in a position of responsibility, he can legitimately be asked to provide persuasive reasons for why he changed his mind.

Now it might be objected that there's a key difference between my far-fetched hypothetical nomination and Kavanaugh's actual nomination. I have never been a judge, and so my scholarship provides the best window into how I would think as a jurist. By contrast, Judge Kavanaugh has a long record of opinions, concurrences, and dissents that Senators can scrutinize. According to this line of reasoning, attorney Kavanaugh's memo to Ken Starr is not irrelevant in an absolute sense but so much less relevant than his judicial output that it can be ignored.

I would reject this objection. With the exception of Elena Kagan, every justice appointed after Lewis Powell in 1972 had prior judicial experience. Their judicial writings obviously were highly relevant to how they would decide cases as justices, but they were also relatively easy to disavow on the ground that as lower court judges they were bound by Supreme Court precedent. (This proviso even applied to Sandra Day O'Connor and David Souter when they were state court judges, because on matters of federal law, state court judges are no less bound by Supreme Court precedent than lower federal court judges are.) Even when writing in dissent, a lower court judge may not be expressing his or her ultimate opinion, because the dissent expresses disagreement about how existing case law should be understood. A lower court judge's writings are thus not necessarily an entirely reliable predictor of how that judge would rule if given the greater freedom that a SCOTUS seat confers. And for that reason, when the Senate has considered the SCOTUS nomination of sitting judges, it has quite appropriately considered not just their judicial writings but the speeches, articles, and memos they wrote in other contexts in which they were not so clearly bound by existing precedent.

To be sure, sometimes when a nominee with judicial experience disavows a decision as the product of prior precedent, the disavowal should be taken with a grain of salt--especially when the nominee's colleagues disagreed in the particular case. The point is not that under such circumstances the nominee is lying when he says that the law required the outcome that he reached, but that decisions in cases that divide lower court judges reveal the way in which the judge, as a justice, would likely rule in other cases where there is disagreement about what the law requires or should require.

Accordingly, the Senate most definitely should scrutinize Judge Kavanaugh's judicial record. But that does not mean that it should fail to scrutinize his pre-judicial or extramural writings, including the Lewinsky memo.

Just as SCOTUS nominees with substantial judicial experience sometimes distance themselves from their rulings by saying "the law made me do it," so nominees sometimes try to distance themselves from their writing undertaken for others. This can be wholly legitimate where, say, the nominee had been acting as a lawyer for a client. Sometimes, however, nominees appear to disavow their own views by falsely attributing them to others.

That is almost certainly the best account of what William Rehnquist did both when he was nominated to be an Associate Justice by President Nixon and to be Chief Justice by President Reagan. Rehnquist claimed that a 1952 memo he had written as a law clerk to Justice Robert Jackson in which he argued for retaining the separate-but-equal regime of Plessy v. Ferguson was a summary of Jackson's views, rather than his own. Subsequent scholarship (summarized in a 2012 NY Times article) showed this claim to be plainly false, but the fact that Rehnquist's memo expressed his own personal view should have been obvious to the Senate from the memo's face during each of his confirmation hearings.

Likewise, Brett Kavanaugh's 1998 memo urging Ken Starr to ask Bill Clinton where he ejaculated obviously states Kavanaugh's own views at the time. He may sincerely have changed his mind, but even if so, Senators are entitled to probe his reasons why.