Durbin Calls Kavanaugh Response on Detainees ‘Misleading’

U.S. Supreme Court nominee and federal Judge Brett Kavanaugh will soon have to explain a statement he made in 2006, Sen. Dick Durbin (D-Ill.) said at a Senate Judiciary Committee meeting July 19.

The statement could be a lightning rod in what will likely be a contentious confirmation hearing for Kavanaugh, whom Democrats fear will shift the Supreme Court to the right for a generation.

Durbin suggested that Kavanaugh misled the Senate concerning his past role in the White House counsel’s office, as it was considering his nomination to his current seat at the U.S. Court of Appeals for the District of Columbia Circuit.

Kavanaugh testified that he wasn’t involved with the rules governing the detention of enemy combatants, Durbin said.

But Kavanaugh was in a “heated meeting” in the White House counsel’s office about whether individuals declared to be enemy combatants should have access to counsel, Durbin said, pointing to a July 18 Washington Post story.

“Make no mistake,” Durbin said. “Whether a detainee is represented by counsel is a critical element of the rules governing the detention of combatants.”

That’s why Kavanaugh’s response “was so misleading,” Durbin said. “This is a big deal.”

It’s possible that Kavanaugh “just forgot” about the meeting, Durbin said.

But that would be strange given the heated nature of the meeting, at which “one of the lawyers slammed his fist on the table, causing a tray of nuts to fly into the air,” Durbin said, quoting the Washington Post story.

Durbin wondered whether Kavanaugh subsequently signed off on a D.C. Circuit spokesperson’s 2007 statement that the testimony was accurate.

The remarks come as Senate Democrats are demanding documents related to Kavanaugh’s time at the White House.

The controversy over Kavanaugh’s response shows how “what may seem like an innocent document” can “have important relevance” in evaluating the nominee, Durbin said.

Durbin said the records are needed to understand Kavanaugh’s views on presidential oversight and accountability.

Durbin is entitled to an answer to his question about detainee policy, Sen. John Cornyn (R-Texas) said.

But Kavanaugh was already confirmed “to arguably the second most important court in the nation,” and senators presumably “did their due diligence” in seeking all necessary documents the first time around, Cornyn said.

Cornyn said it’s therefore confusing that Democrats are asking for “a different universe of documents” in evaluating Kavanaugh’s Supreme Court nomination.