Republicans eager for judicial fight

When President Bush first nominated his staff secretary, Brett Kavanaugh, to a vacancy on the US Court of Appeals for the District of Columbia Circuit in 2003, critics said he must be spoiling for a fight.

The nominee had no judicial experience, little courtroom experience and also worked on some of the most disturbing issues for Democrats: the impeachment report on President Clinton and the Florida recount in the 2000 presidential election. As a senior official in the Bush White House, Mr. Kavanaugh also has helped pick and prep other controversial judicial nominees.

Now, after a nearly three-year delay and a rare second confirmation hearing Tuesday, he will be the first nominee of this midterm election year to get a vote on the floor of the Senate, expected by Memorial Day - a move his supporters say will help rally the Republican base, especially if there's a fight.

Democrats say Kavanaugh is a partisan nominee who will undermine the independence of the courts. President Bush "has nominated a clear partisan to one of the nation's most important federal court of appeals - a person who has clearly shown through his own role in the nominations process that he views judges as political actors, not impartial decision-makers," said Sen. Edward Kennedy (D) of Massachusetts.

That's the kind of talk conservatives say will rouse the GOP base. Kavanaugh, though not a household name, reminds conservative voters of the struggle to build a judiciary that will decide hot-button issues like school prayer, gay marriage, and abortion in line with their values.

Democrats have urged Mr. Bush to withdraw an even more controversial judicial nominee, Terrence Boyle. Bush is expected to nominate about two dozen other judges in coming weeks.

"This issue will resonate all the way to the ballot box in the fall elections," says Manuel Miranda, chairman of the Third Branch Conference, a coalition of conservative and libertarian groups on judicial nominations. "It's an issue that could affect 12 Senate elections."

In 2003, when Mr. Miranda worked for the Senate Judiciary Committee, he tapped into sensitive Democratic files about judicial nominees. Asked whether he had ever seen these memos, Kavanaugh said he had not.

The issue that drew the most fire from Democrats, who are expected to vote against his nomination in committee Thursday on a party-line vote, was executive privilege.

On Tuesday, Democrats asked Kavanaugh whether, if confirmed, he would support the White House on issues such as warrantless wiretaps, exceptions to a ban on torture, or the use of presidential signing statements to bypass congressional laws. He said he could not comment on matters likely to come before the court.

He also denied ever meeting indicted ex- lobbyist Jack Abramoff.

As a law clerk to Justice Anthony Kennedy in 1993-94, Kavanaugh said he learned "the essential neutrality of the law." "I revere the rule of law," he said. If confirmed, "I will follow precedent in all cases, freely and fairly" and "maintain the independence of the judiciary."

In the run-up to this week's hearing, the American Bar Association revised its rating of the nominee from "well qualified" to "qualified." Additional interviews conducted in 2006 raised concerns about the nominee's "breadth of professional experience" and whether, as staff secretary to the president, he had become "so insulated that he will be unable to judge fairly in the future," said Stephen Tober, in a May 8 statement on behalf of the ABA's Standing Committee on Federal Judiciary. Still, Kavanaugh "enjoys a solid reputation for integrity, intellectual capacity, and writing and analytical ability," he said.

Some legal experts say the debate over Kavanaugh, expected to be along party lines, further politicizes the courts.

"There's been much comment that this nomination will get the [Republican] base energized," says Carl Tobias, a law professor at the University of Richmond, in Virginia. "That's not the best way to nominate people to the federal bench because it politicizes that process and degrades judicial independence."

Judiciary Committee chairman Arlen Specter (R) agreed to a second hearing for Kavanaugh after assurances from Democrats that they were not resolutely opposed to the nomination. Also, Democrats on the so-called Gang of 14, which brokered a cease-fire in the judicial wars last year, asked for a second committee hearing.

Sens. Ben Nelson (D) of Nebraska and Lindsay Graham (R) of South Carolina, both members of the Gang of 14, say they do not see any "extraordinary circumstances" in this nomination that would justify allowing a filibuster on the floor of the Senate to block the nomination.

"I don't see anything that constitutes extraordinary circumstance here, beyond the fact that he's a good conservative," said Senator Graham, in an interview after this week's hearing.

"I expected President Bush to pick non- judicial activists. That's what the last election was about," he told the panel on Tuesday.