Bush to Choose Ex-Starr Aide
Kavanaugh to Be Nominee For Appeals Court Post
By Mike Allen
Washington Post Staff Writer
Thursday, June 19, 2003; Page A25
President Bush plans to nominate White House lawyer Brett M. Kavanaugh, an author of independent counsel Kenneth W. Starr's report on President Bill Clinton, for a seat on the U.S. Court of Appeals for the D.C. Circuit, Republican sources said yesterday.
The disclosure came as Bush issued a curt rejection to Democratic senators who had offered to alleviate a fight over a future Supreme Court vacancy by working with him to find a nominee both sides could accept.
Kavanaugh's nomination would suggest Bush is spoiling for a fight with Senate Democrats while the administration's selection of judges is already a raw issue between the parties. The D.C. Circuit court is considered the second most powerful in the land. Kavanaugh, 38, was involved in many of the Clinton administration's legal controversies, and has played a key role in choosing Bush's judicial nominees.
Kavanaugh is undergoing an FBI background check in preparation for his nomination, which will not be announced immediately. He was an appellate expert in Starr's office from 1994 to 1998, and worked on the Monica S. Lewinsky investigation. He also represented Starr in his successful effort to force the release of White House lawyers' notes of conversations with Hillary Rodham Clinton, now a senator. The notes related to the suicide of deputy White House counsel Vincent Foster. Kavanaugh's contribution to the Starr report was the section that outlined possible legal grounds for impeachment.
Kavanaugh was a partner with Kirkland & Ellis before becoming an associate White House counsel in January 2001. He has undergraduate and law degrees from Yale, and was a clerk for Justice Anthony M. Kennedy.
The D.C. Circuit court has openings on its 11th and 12th seats. Republicans blocked Clinton from filling at least one of them by arguing that additional judges were not needed.
Bush's rebuff of the overture by Senate Democrats, a departure from his frequent contention that he is eager to work with Congress, is part of intense positioning by both parties for the possibility that a Supreme Court justice will retire at the end of this term. Senate Minority Leader Thomas A. Daschle (D-S.D.) wrote to Bush on Tuesday to recommend that the president convene a meeting of Senate leaders "to begin a bipartisan process of consultation."
White House press secretary Ari Fleischer called the idea "a novel new approach to how the Constitution guides the appointment process," and said Bush plans no such meeting. The Constitution gives the president sole power to nominate justices, and then the Senate decides whether to confirm them.
"The Constitution is clear, the Constitution will be followed," Fleischer said. "We always welcome thoughts, but certainly no one wants to suggest that the Constitution be altered."
Fleischer said White House Counsel Alberto R. Gonzales "is always happy to meet and talk with these individual senators." A twist is that Gonzales, a former justice of the Texas Supreme Court, is one of Bush's most obvious potential nominees.
Gonzales wrote to Daschle yesterday that in case of a vacancy, the Senate "will have an opportunity to assess the president's nominee and exercise its constitutional responsibility." He has sent similar letters to other Senate Democrats.
The selection of judges, from federal district courts to the Supreme Court, is always a bitterly contested issue for the most ideologically committed wings of both parties. It is even more so now because of the GOP's narrow hold on the Senate, and because of rumors about the possible retirement of Chief Justice William H. Rehnquist, 78, or Justice Sandra Day O'Connor, 73 -- or both.
A group called Faith2Action is linking with some of the nation's best-known conservative organizations for Project Rosebud, which plans to deliver thousands of roses to the White House next week in support of an antiabortion nominee for any Supreme Court vacancy.
Sen. Charles E. Schumer (D-N.Y.), a Judiciary Committee member, wrote Bush last week to suggest potential consensus nominees. Schumer suggested five moderate Republicans, including Sen. Arlen Specter (Pa.).
Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee, had first suggested the bipartisan summit in a separate letter to Bush last week. Leahy said that Democrats were "ready to work with you to help select a nominee or nominees to the Supreme Court behind which all Americans, and all senators, can unite."
Bradford A. Berenson, a former associate White House counsel for Bush, called the letters a political stunt to help Democrats "blame the president for the ugly confirmation fight it appears they already have planned."
Democrats, who contend they are not proposing anything radical, are circulating pages from a book by Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) in which he takes credit for suggesting to Clinton the nomination of two sitting justices, Ruth Bader Ginsburg and Stephen G. Breyer.
Hatch wrote last year in his memoir, "Square Peg," that he had asked Clinton whether he had considered Breyer or Ginsburg. "President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsburg," Hatch recounted.
Hatch said Tuesday on C-SPAN that Democrats were trying to preempt a conservative nominee. "Even though President Clinton did consult with me as chairman of the committee, he made the final decisions," Hatch said.
Sen. Edward M. Kennedy (Mass.) said the best way for Bush to avoid a major fight would be to consult with the Senate and send up nominees "without ideological chips on their shoulders."
"But if this president wants a battle," Kennedy said, "he'll get it."
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