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Constitutional Freedoms

Here Is Why Judge Kavanaugh Will Be Hard to Smear

Four former clerks attest to Supreme Court nominee’s great character and admirable judicial record

An event sponsored Thursday by The Heritage Foundation demonstrates why it will be so hard for Democrats to smear Judge Brett Kanavaugh, President Donald Trump’s nominee for the Supreme Court.

The conservative-leaning think tank gathered four former law clerks of Kavanaugh (pictured above), who is a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Each attested to his fairness on the bench, his dogged work ethic, and his vigorous attempts to adhere to the law and Constitution.

But they also told personal stories of Kavanaugh’s demeanor and empathy off the bench, from his record of hiring female law clerks to his willingness to accommodate a clerk who was juggling work and motherhood — even his support of women’s lacrosse.

It is a picture consistent with the narrative that has emerged since Trump tapped him last month to replace retired Justice Anthony Kennedy. Unless a bombshell comes to light between now and Kavanaugh’s confirmation hearing, the personal testimonies suggest it will be difficult for Democrats to credibly maintain a view expressed by Sen. Cory Booker (D-N.J.) that the nomination represents a “moral moment,” in which “You are either complicit in the evil, you are either contributing to the wrong, or you are fighting against it.”

Rebecca Taibleson, who clerked for Kavanaugh from 2010 to 2011 and now is a federal prosecutor in Milwaukee, said her boss was not afraid of dissenting voices.

“He’s hired law clerks from across the ideological spectrum, and I think he values dissent, disagreement and debate in chambers … That being said, on the few occasions I did disagree with him, I never actually managed to budge him from where he actually settled,” she said.

Taibleson said that on a court where 26 of the 39 clerks during her term were men, Kavanaugh had a strong record of hiring women. She said a majority of his clerks, in fact, have been female.

“No justice on the Supreme Court has ever done that,” she said.

Sarah Pitlyk, special counsel at the pro-life Thomas More Society, recalled Kavanaugh’s reaction to her pregnancy just before she clerked for him in 2010 and 2011. She said she had a baby between the time she first interviewed for the job and the time the term began.

“I was terrified. Because clerking is not known for its flexibility, right?” she said. “Your flexibility in hours. And clerks are not terribly known for their negotiating power. So I was facing what I thought would be, you know, one of the most grueling years of my life.”

But Pitlyk said Kavanaugh himself raised the issue in a phone call a few weeks before she started. She said he told her he would make every effort to make sure she could have a rewarding clerkship while meeting her commitments as a mother. And he made good on the promise, she added.

Porter Wilkinson, who clerked for Kavanaugh in 2007 and 2008, said she and her fellow clerks were “in awe of how hard he would work” to reach the correct decisions in cases before the court.

“I was just so struck by the way he approached cases. He didn’t pretend to know the answers.”

But it was not just the nuances of cases, Wilkinson said. He also poured himself into another of his passions — sports. Wilkinson, who was a collegiate athlete and is enshrined in the Virginia chapter of the U.S. Lacrosse Hall of Fame, said she bonded with her boss over the sport.

“He’s immersed in the details,” she said. “He takes his daughters to games to instill a love of the sport in them. He’s seen five NCAA women’s lacrosse championships.”

The former clerks said Kavanaugh’s personal conduct is relevant because it translated to his work on the bench. Wilkinson, who now serves as chief of staff to the regents of the Smithsonian Institution, said every litigant and lawyer gets a fair shake in the judge’s courtroom.

“I was just so struck by the way he approached cases. He didn’t pretend to know the answers,” she said. “He didn’t come at cases with a particular personal or policy view. He just worked hard to find out what the answer was. And for him, that meant reading the briefs and finding the best strengths and weaknesses of both sides’ arguments.”

“Although I think a lot of people might have expected him, as someone who had served in a Republican administration, to be predisposed to the Republican Party’s point of view, he ruled against the Republicans.”

Roman Martinez, who clerked for Kavanaugh during the 2008-2009 term, said Kavanaugh is not results-oriented when he considers a case. He said his former boss strives to stay true to precedent and the text and laws of the Constitution and statutes — even when it favors litigants he might disagree with on policy.

Martinez, who now is a partner in the Washington office of Latham & Watkins, noted that Kavanaugh has rejected challenges to the Affordable Care Act. He recalled a suit filed by an abortion-rights organization challenging restrictions imposed by the Federal Election Commission (FEC).

“Judge Kavanaugh ended up siding with that group, represented at the time by someone who would go on to be President Obama’s White House counsel,” he said. “And he did it not because he has some special fondness for pro-choice Democrats, but rather because that’s what he understood the First Amendment to require.”

By contrast, Martinez said, the Republican Party challenged a regulation under the McCain-Feingold campaign finance law.

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“Although I think a lot of people might have expected him, as someone who had served in a Republican administration, to be predisposed to the Republican Party’s point of view, he ruled against the Republicans,” he said.

One frequent line of attack against Kavanaugh is that he has shown excessive deference to executive power. Martinez disputed that, pointing to a challenge by a foreign prisoner against former President Barack Obama’s decision to transfer him to another country. Kavanaugh ended up siding with the Obama administration.

“But his opinion was very clear that he did not believe the president had a blank check when it comes to national security,” he said.