Is Brett Kavanaugh the next Supreme Court Justice?

As the Judiciary Committee meets this week to discuss the nomination of Brett Kavanaugh to become the Associate General of the United States Supreme Court.  Part of the process is the swearing in of the Nominee prior to his discussions with the Committee.

During these discussions, Senators are given time for an opening statement and opportunity to ask the Nominee questions.  This time allows each Senator to hear more from Nominee Kavanaugh and determine if he is the right man for the job.

Prior to this Committee meetings, each Senator have was provided a historic amount of information (writings, speeches, court decisions, and emails) on the nominee.  There have been over 500 thousand documents delivered to the Senators for review of the nominee Brett Kavanaugh.  Each of the Senators has had the opportunity to review these documents and now committee members are able to move forward with their questions.

While given this historic amount of information already provided the Democrat Committee members want more.  More documents then were given for Justices Gorsuch and Kagen combined.  The minority members would like all records that pertain to Brett Kavanaugh’s time while working in the White House.  The issue with demanding these documents is that they are protected both by attorney-client privilege and executive privilege.  As an attorney in the White House, he helped vet Court nominees.  But what about his three years as Staff Secretay and what is the role for someone who holds this title?

In a recent article in The National Review titled The Kavanaugh Paper Flow by Yuval Levin he discusses in detail the role of the White House Staff Secretary.

“The nature of the job of the White House staff secretary means that most documents that “circulated through Kavanaugh’s office” while he had that job wouldn’t really tell senators anything about him, and shouldn’t be considered on par with documents he himself produced—in the counsel’s office and in other jobs.

The staff secretary is basically the traffic cop directing the paper flow in the White House. The job was created in the Eisenhower Administration in response to concerns (lodged by both President Truman at the end of his term and the so-called Hoover Commission set up to help reorganize the executive branch) about disorder in the processes that existed to inform the president’s decision-making. The job went through various changes over the years, but its current form was basically established in the Reagan Administration. Its purpose is to carefully control the paper flow to and from the president, so that decisions are made in an orderly way, nothing is lost in the shuffle, the legal requirements for archiving records are carefully adhered to, and, maybe most important, the president receives the advice and opinions of the full range of his staff.

But one particularly frustrating part of the job is that it is, in essence, procedural and not substantive. The staff secretary can be influential in a few ways: by sheer proximity to the president (few people spend more time with the chief executive), by exercising some judgment about what documents flow to the president and which do not, and by making prudential choices in the staffing process about which of the competing views of various White House offices and officials to draw out or to insist are further represented in the papers that reach the president. But none of these things would really be evident by examining the documents that circulated through the staff secretary’s office 15 years ago.”

So what seems like a treasure trove of hidden documents is really more like a long paper trail created by others who worked in the White House.  No long policy decisions were made by Kavanaugh so, in reality, those being protected are the creators and the President whom they worked for.

In essence, it would become a serious waste of effort for the Senate Committee and their staffs.  Even Democratic Senator Leahy feels “a better way to determine if a judge is suitable for the Supreme Court is to weigh the actions from their time on a lower court.

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Current Members of the Supreme Court

John G. Roberts, Chief Justice of the United States

John G. Roberts, Jr., Chief Justice of the United States,
was born in Buffalo, New York, January 27, 1955. He married Jane Marie Sullivan in 1996 and they have two children – Josephine and Jack. He received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979. He served as a law clerk for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980 and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He was Special Assistant to the Attorney General, U.S. Department of Justice from 1981–1982, Associate Counsel to President Ronald Reagan, White House Counsel’s Office from 1982–1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him as Chief Justice of the United States, and he took his seat September 29, 2005.

Clarence Thomas, Associate Justice

Clarence Thomas, Associate Justice,
was born in the Pinpoint community near Savannah, Georgia on June 23, 1948. He attended Conception Seminary from 1967-1968 and received an A.B., cum laude, from Holy Cross College in 1971 and a J.D. from Yale Law School in 1974. He was admitted to law practice in Missouri in 1974, and served as an Assistant Attorney General of Missouri, 1974-1977; an attorney with the Monsanto Company, 1977-1979; and Legislative Assistant to Senator John Danforth, 1979-1981. From 1981–1982 he served as Assistant Secretary for Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment Opportunity Commission, 1982-1990. From 1990–1991, he served as a Judge on the United States Court of Appeals for the District of Columbia Circuit. President Bush nominated him as an Associate Justice of the Supreme Court and he took his seat October 23, 1991. He married Virginia Lamp on May 30, 1987 and has one child, Jamal Adeen by a previous marriage.

Ruth Bader Ginsburg, Associate Justice

Ruth Bader Ginsburg, Associate Justice,
was born in Brooklyn, New York, March 15, 1933. She married Martin D. Ginsburg in 1954, and has a daughter, Jane, and a son, James. She received her B.A. from Cornell University, attended Harvard Law School, and received her LL.B. from Columbia Law School. She served as a law clerk to the Honorable Edmund L. Palmieri, Judge of the United States District Court for the Southern District of New York, from 1959–1961. From 1961–1963, she was a research associate and then associate director of the Columbia Law School Project on International Procedure. She was a Professor of Law at Rutgers University School of Law from 1963–1972, and Columbia Law School from 1972–1980, and a fellow at the Center for Advanced Study in the Behavioral Sciences in Stanford, California from 1977–1978. In 1971, she was instrumental in launching the Women’s Rights Project of the American Civil Liberties Union, and served as the ACLU’s General Counsel from 1973–1980, and on the National Board of Directors from 1974–1980. She was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 1980. President Clinton nominated her as an Associate Justice of the Supreme Court, and she took her seat August 10, 1993.

Stephen G. Breyer, Associate Justice

Stephen G. Breyer, Associate Justice,
was born in San Francisco, California, August 15, 1938. He married Joanna Hare in 1967, and has three children – Chloe, Nell, and Michael. He received an A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 Term, as a Special Assistant to the Assistant U.S. Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel of the U.S. Senate Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980. He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School, 1967–1994, a Professor at the Harvard University Kennedy School of Government, 1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the United States Sentencing Commission, 1985–1989. President Clinton nominated him as an Associate Justice of the Supreme Court, and he took his seat August 3, 1994.

Samuel A. Alito, Jr., Associate Justice

Samuel A. Alito, Jr., Associate Justice,
was born in Trenton, New Jersey, April 1, 1950. He married Martha-Ann Bomgardner in 1985, and has two children – Philip and Laura. He served as a law clerk for Leonard I. Garth of the United States Court of Appeals for the Third Circuit from 1976–1977. He was Assistant U.S. Attorney, District of New Jersey, 1977–1981, Assistant to the Solicitor General, U.S. Department of Justice, 1981–1985, Deputy Assistant Attorney General, U.S. Department of Justice, 1985–1987, and U.S. Attorney, District of New Jersey, 1987–1990. He was appointed to the United States Court of Appeals for the Third Circuit in 1990. President George W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat January 31, 2006.

Sonia Sotomayor, Associate Justice

Sonia Sotomayor, Associate Justice,
was born in Bronx, New York, on June 25, 1954. She earned a B.A. in 1976 from Princeton University, graduating summa cum laude and receiving the university’s highest academic honor. In 1979, she earned a J.D. from Yale Law School where she served as an editor of the Yale Law Journal. She served as Assistant District Attorney in the New York County District Attorney’s Office from 1979–1984. She then litigated international commercial matters in New York City at Pavia & Harcourt, where she served as an associate and then partner from 1984–1992. In 1991, President George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, and she served in that role from 1992–1998. She served as a judge on the United States Court of Appeals for the Second Circuit from 1998–2009. President Barack Obama nominated her as an Associate Justice of the Supreme Court on May 26, 2009, and she assumed this role August 8, 2009.

Elena Kagan, Associate Justice

Elena Kagan, Associate Justice,
was born in New York, New York, on April 28, 1960. She received an A.B. from Princeton in 1981, an M. Phil. from Oxford in 1983, and a J.D. from Harvard Law School in 1986. She clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit from 1986-1987 and for Justice Thurgood Marshall of the U.S. Supreme Court during the 1987 Term. After briefly practicing law at a Washington, D.C. law firm, she became a law professor, first at the University of Chicago Law School and later at Harvard Law School. She also served for four years in the Clinton Administration, as Associate Counsel to the President and then as Deputy Assistant to the President for Domestic Policy. Between 2003 and 2009, she served as the Dean of Harvard Law School. In 2009, President Obama nominated her as the Solicitor General of the United States. A year later, the President nominated her as an Associate Justice of the Supreme Court on May 10, 2010. She took her seat on August 7, 2010.

Neil M. Gorsuch, Associate Justice

Neil M. Gorsuch, Associate Justice,
was born in Denver, Colorado, August 29, 1967. He and his wife Louise have two daughters. He received a B.A. from Columbia University, a J.D. from Harvard Law School, and a D.Phil. from Oxford University. He served as a law clerk to Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit, and as a law clerk to Justice Byron White and Justice Anthony M. Kennedy of the Supreme Court of the United States. From 1995–2005, he was in private practice, and from 2005–2006 he was Principal Deputy Associate Attorney General at the U.S. Department of Justice. He was appointed to the United States Court of Appeals for the Tenth Circuit in 2006. He served on the Standing Committee on Rules for Practice and Procedure of the U.S. Judicial Conference, and as chairman of the Advisory Committee on Rules of Appellate Procedure. He taught at the University of Colorado Law School. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on April 10, 2017.

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