Federal Courts and Nominations

OP-ED: Kavanaugh, the Federal Marriage Amendment, and the Cost of an Incomplete Record

Last week, Senate Judiciary Committee Chairman Charles Grassley announced that hearings on President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court will begin as scheduled, immediately after Labor Day weekend, September 4. Grassley did so despite widespread calls to postpone the hearings and a raging battle about the adequacy of the information available to the Senate as it exercises its constitutional role of advice and consent on this lifetime appointment to replace the High Court’s swing justice, Anthony Kennedy. To those outside of Washington, this battle might appear to be a dry dispute about documents. Nothing could be further from the truth.

What is at stake is the ability to understand Kavanaugh’s views on the Constitution and its most important protections.

At the end of last month, Senator Grassley made a request to the George W. Bush Presidential Library, asking for records from only part of Judge Kavanaugh’s time in the Bush White House. This request covers documents from Kavanaugh’s two years in the Office of White House Counsel, but excludes the three years (2003-2006) he spent serving as White House Staff Secretary. Additionally, rather than waiting for the review by the National Archives (which has played a central role in reviewing White House records for previous nominees), documents are being screened by a team of private lawyers led by Bill Burck, who served as a deputy to Kavanaugh during his White House Staff Secretary years.

A number of senators have indicated that they have yet to make a decision on the Kavanaugh nomination, and that they intend to study the record. Such an answer is in keeping with the seriousness of the Advice and Consent role that Article II, Section 2 of the Constitution explicitly assigns to senators. Of course, one assumes that the role’s seriousness demands that senators examine the complete record, which should include all documents relevant to assessing the qualifications of a nominee to serve on our nation’s highest court.

Grasping the importance of these records requires understanding the role of White House Staff Secretary, as well as the constitutional significance of the issues that circulated during the time that Judge Kavanaugh served in this capacity. There seems little question that the position of White House Staff Secretary is a critical one. A number of former White House Staff Secretaries have written about the role and its importance in evaluating policy, ensuring that critical information gets to the President, and reconciling conflicting policy advice. Judge Kavanaugh himself has described his White House Staff Secretary years as “among the most instructive” to his career as a judge. As for the issues that were being considered by the White House during this period, these included restrictions on abortion, federal protections against hate crimes, torture policy, and the Federal Marriage Amendment (FMA).

I will focus upon the FMA because from 2003–2005, an almost precise overlap of the time Judge Kavanaugh spent as White House Staff Secretary, I closely observed the FMA’s development and consideration. During those years, I worked as an advocate at the Human Rights Campaign and was part of a broad-based coalition of civil and human rights groups that joined together to help defeat the FMA. The FMA was an attempt to amend the United States Constitution to define marriage as the union of one man and one woman, cutting off a conversation that was occurring not only in legislatures and courts, but also in living rooms across the country, about how to recognize same-sex couples and their families. In my role at HRC, I viewed the proposed amendment as an attempt to permanently relegate same-sex couples to second-class status.

In my current role at the Constitutional Accountability Center, a nonprofit law firm and think tank dedicated to honoring the Constitution’s whole text, history, and values, I view the FMA through a slightly different lens. I look at the FMA in the context of the other amendments. It was one of the few high-profile attempts to amend our nation’s founding document in the last two decades, and was unusual in several respects. To be clear, there is nothing inherently suspect about attempting to amend the Constitution. The story of our Constitution is one of a document striving to keep its deepest promises, even when that requires alterations.

Take, for example, the Thirteenth, Fourteenth, and Fifteenth Amendments, which were drafted and adopted in what many refer to as our nation’s “second founding.”  These Reconstruction amendments, considered and adopted in the wake of the Civil War, were an attempt to acknowledge our nation’s abominable treatment of African Americans; taken together, these amendments represent an understanding that the liberty promises made in the Declaration of Independence had been illusory for some people, who had been owned and traded as property. The equal protection and due process guarantees of the Fourteenth Amendment are best understood in the context of our nation’s somber racial history, which had unfairly denied these rights to some of our brothers and sisters; the Fourteenth Amendment’s citizenship provisions are best understood as a reckoning with how we had drawn too narrowly the metes and bounds of the American family.

If one examines today’s amended Constitution, the amendments represent attempts to broaden the document’s protections and to deepen our understanding of who should be protected. The example of voting proves instructive. The right to vote has been broadened through the amendments:  the Fifteenth Amendment prohibits the denial of the right to vote based on race, color, or previous servitude; the Nineteenth Amendment prohibits the denial of the right to vote based on sex; and the Twenty-Sixth Amendment lowered the voting eligibility age for U.S. citizens from 21 to 18 years of age. Seen together, our current amendments trace an arc of constitutional progress, one that bends toward greater inclusion.

The FMA, if adopted, would have been an aberrant data point — an amendment to narrow rights and to further restrict who could find shelter in the Constitution’s protections. Given the FMA’s highly unusual nature, if there are documents pertaining to Judge Kavanaugh’s awareness about the amendment, participation in its formation, or evaluation of its merits, these are not only relevant, but arguably critical to our understanding of his view of the Constitution. What is Judge Kavanaugh’s perspective on the arc of constitutional progress?  What are his views on the amendments and how they interact with the rest of the Constitution’s text?  How does he feel the due process and equal protection guarantees of the Fourteenth and Fifth Amendments apply to the LGBTQ population?  How does he apply the whole text, history, and values of the amended Constitution to populations that might not have been explicitly contemplated by a group of men in the 1700s, but whose claim to the protections they sketched out is no less real?

These questions seem all the more pressing given that the seat that Judge Kavanaugh would fill was until recently occupied by Associate Justice Anthony Kennedy, who authored and served as the deciding vote in three 5-4 opinions that were among the most critical Supreme Court decisions for the LGBTQ community — Lawrence v. Texas (2003), striking down the criminalization of adult, consensual same-sex intimacy; U.S. v. Windsor (2013), striking down Section 3 of the Defense of Marriage Act, which had prohibited federal recognition of same-sex marriages that were legal in many states at the time, and then Obergefell v. Hodges (2015), which established marriage equality nationwide.

Some senators will claim that the documents from Judge Kavanaugh’s time at the White House are too voluminous. Indeed, some conservatives have already complained that compiling Kavanaugh’s full record somehow would be “insane.” As we approach hearings on President Trump’s nominee to fill Justice Kennedy’s seat—perhaps the most important Supreme Court vacancy in memory—America will hear more of the same, that we cannot afford to review Judge Kavanaugh’s complete record. The reality is, we cannot afford not to.

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