Despite objections to holding confirmation hearings for Brett Kavanaugh to the U.S.
Supreme Court amid the withholding of documents from his time at the Bush White
House and mounting scandals facing President Trump, the Senate is nonetheless poised
to begin its public questioning of the nominee next week.
The Senate Judiciary Committee is moving forward with hearings — scheduled from
Tuesday to Friday — as Republican leaders push to have a floor vote on his confirmation
before Election Day — after which control of Congress could change.
LGBT groups and Democrats — who oppose Kavanaugh based on fears his
confirmation would tilt the Supreme Court in a more conservative direction — are
insisting the hearings be delayed until the Trump administration makes public the entirety
of Kavanaugh’s records of his time during the George W. Bush administration, including
when he served as staff secretary from 2003 to 2006 at the White House.
With Kavanaugh’s 12-year record as a circuit judge on the U.S. Circuit Court of
Appeals for the D.C. Circuit scant on LGBT rulings, those Bush administration records
may be more revealing on his work or thoughts on LGBT policy. After all, that was the
time the U.S. Supreme Court struck down state anti-sodomy laws in the Lawrence v.
Texas decision and Bush was pushing a Federal Marriage Amendment that would have
banned same-sex marriage nationwide.
Additionally, the Bush administration was taking heat at this time for use of torture
in interrogation of terrorist suspects, warrantless wiretapping and misleading the
American public in motivations for the Iraq war.
Sasha Buchert, staff attorney for the LGBT legal group Lambda Legal, cited those
Bush administration initiatives, saying with Kavanaugh up for an appointment to the
Supreme Court the availability of those documents is “really, really critical.”
“We don’t have adequate information,” Buchert said. “For our lane specially, we
don’t know his involvement in so many of those Bush-era scandals, so it’s critical that
this not move forward without us knowing his full involvement.”
Among the documents revealed so far suggest Kavanaugh had a hand in Bush
administration policy in which the Salvation Army requested an exemption from local
non-discrimination laws to discriminate against LGBT people and still receive federal
Although then-White House spokesman Ari Fleischer said in 2001 the administration had decided “not to proceed with the Salvation Army request,” the records
suggest Kavanaugh developed an alternate policy for the Bush White House allowing a
religious exemption, which would be consistent with a leaked report at the time from the
In July 2001, White House counsel Bradford Berenson wrote in an email to fellow
White House counsel Jay Lefkowitz he hadn’t seen an inquiry from House Democrats on
the Salvation Army issue, but “if it’s on faith-based, Brett is talking point.” In a
subsequent exchange with Berenson, Kavanaugh wrote, “We have mapped out a
Buchert said the email exchange about Kavanaugh’s involvement on the Salvation
Army issue is revealing.
“It’s clear that he had extensive involvement in that issue and likely many others,
this is just the tip of the iceberg,” Buchert said.
Senate Democrats have also asserted the withholding of documents stands in
contrast to the confirmation process for U.S. Associate Justice Elena Kagan, who was
required to hand over documents related to her time at the Clinton White House.
According to Senate Democrats, only six percent of Kavanaugh documents have been
Calls for delay are also based on recent developments suggesting President Trump
may have engaged in unlawful activity in the 2016 election. Chief among them is Trump
lawyer Michael Cohen’s pleading guilty to criminal violations of campaign finance law,
which Cohen asserted as part of a plea deal was done at Trump’s request.
Harper Jean Tobin, director of policy for the National Center for Transgender
Equality, cited both the legal troubles facing Trump and the withholding of Kavanaugh
documents as reason to suspend the hearings.
“This entire process has already been farcical at best, and attempting to keep Judge
Kavanaugh’s record a secret is an extreme step that ignores the will of the American
people,” Tobin said. “Given the severity of the legal crisis facing the top levels of this
country’s leadership, these hearings must be suspended at least until Judge Kavanaugh’s
full records have been made available to the public.”
But those calls for delays aren’t enough to persuade Republicans to hold off on the
Sen. Charles Grassley (R-Iowa), chair of the Senate Judiciary Committee, said in a
statement he’s “not going to delay Judge Kavanaugh’s confirmation” because the calls
for delays are disingenuous.
“Minority Leader Schumer said he’d fight Judge Kavanaugh with everything he’s
got,” Grassley said. “Some members of this committee announced their opposition before
giving him any consideration whatsoever. The goal has always been the same: Delay the
confirmation process as much as possible and hope Democrats take over the Senate in the
Grassley disputed the Trump administration wasn’t forthcoming in the confirmation
process when compared to the process for confirming Kagan, denying only 6 percent of
the Kavanugh documents were released.
“We have received almost three times the number of pages for Judge Kavanaugh
than we received for Justice Kagan,” Grassley said. “This is on top of the fact that we
have Judge Kavanaugh’s 12-year judicial record to look at, while we didn’t have any judicial writings to review for Justice Kagan. This is the most transparent and open
Supreme Court confirmation process of all time.”
The Senate considers the Kavanaugh nomination as the U.S. Supreme Court may
take up major LGBT cases in the coming years. Among them are cases challenging
Trump’s transgender military ban, lawsuits seeking clarification on whether federal
statutes against sex discrimination — such as Title VII and Title IX — cover LGBT
people and “religious freedom” litigation seeking a First Amendment right to
discriminate against LGBT people despite non-discrimination laws.
Although the Supreme Court already decided in the Obergefell v. Hodges case of
2015 that marriage equality is the law of the land, new cases seeking to compromise that
ruling may also come before justices. Among them is Turner v. Pidgeon, a case
percolating in the Texas judiciary challenging spousal health benefits for Houston city
employees in same-sex marriages and whether the Obergefell decision applies to those
A number of Senate Democrats — including Kamala Harris (Calif.), Amy
Klobuchar (Minn.), Sherrod Brown (Ohio), Claire McCaskill (Mo.) — as well as Sen.
Susan Collins (R-Maine), who support LGBT rights, have already met with Kavanaugh
to question him privately ahead of the confirmation hearings.
Only Brown’s office responded to the Washington Blade’s request for comment on
whether senators in the meetings brought up LGBT issues, like same-sex marriage.
Jenny Donohue, a Brown spokesperson, said those issues did come up and the Ohio
Democrat wasn’t happy with the responses.
“Sen. Brown raised concerns with Judge Kavanaugh during their meeting about his
take on settled law and civil rights, in the context of everything from worker rights to
marriage equality,” Donohue said. “Sen. Brown was not satisfied with Kavanuagh’s
answer and he will not support someone for the high court who would take rights away
Gregory Angelo, president of Log Cabin Republicans, said his organization will be
looking to hear from Kavanaugh himself on LGBT issues during his confirmation
“The main things Log Cabin Republicans will be looking for is how Judge Kavanaugh answers questions regarding the Supreme Court’s Windsor and Obergefell rulings, in addition to questions regarding the balance between religious liberty and LGBT equality,” Angelo said. “Questions regarding the application of the definition of ‘sex’ to LGBT non-discrimination principles will also be on our radar.”
Asked how Kavanaugh’s answers to those questions will factor into whether Log
Cabin will support the nominee’s confirmation, Angelo replied, “I’d rather wait and see
how he answers until jumping to conclusions about hypotheticals.”