The following day, NPR added more detail: “In fact, in 2002, Kavanaugh and a group of top White House lawyers discussed whether the Supreme Court would uphold the Bush administration’s decision to deny lawyers to American enemy combatants. Kavanaugh advised the group that the Supreme Court’s swing voter, Justice Anthony Kennedy, would probably reject the president’s assertion that the men were not entitled to counsel.”
Durbin told NPR he felt “perilously close to being lied to” by the nominee, adding, “I will just say that he might have decided that he could split the difference here and give me an answer in the negative. But he had to know he was misleading me and the committee and the people who were following this controversial nomination.” He also sent a letter to Kavanaugh asking about the apparent discrepancy:
I request that you provide the Senate Judiciary Committee with an explanation for this apparent contradiction. In addition, I request that you disqualify yourself in all pending and subsequent cases involving detainees and enemy combatants. Your lack of candor at your nomination hearing suggests you cannot approach these cases with impartiality and an open mind.
Leahy, meanwhile, sent a letter to Attorney General Alberto Gonzales asking him to investigate whether Kavanaugh had lied. “False testimony by any witness is troubling and undermines the Senate’s ability to fulfill its constitutional duties on behalf of the American people,” Leahy wrote. “But my concern is heightened because the subject matter of the possibly false testimony was highly controversial and played a critical role in many Senators’ consideration of Mr. Kavanaugh’s appointment to one of the courts most involved in reviewing those very same detention policies.”
In March 2008, the Justice Department wrote back to Leahy, saying the public-integrity section had “reviewed this matter and determined there was not sufficient basis to initiate a criminal investigation.” (In a strange coincidence, the person who signed the letter was Brian Benczkowski, who was last week confirmed to lead the DOJ’s criminal division despite controversy over his representation of a Russian bank.) Kavanaugh continued to sit on judicial panels that considered detainee-related questions.
And nothing else happened. Although two senators were accusing a federal judge of some degree of lying, they had little remedy. Impeachment of federal judges is rare and usually reserved for the most obvious crimes, and the trick with lifetime appointments is that once senators vote, they don’t usually get a chance to revisit old questions.
Until now. Kavanaugh’s Supreme Court nomination means Durbin and Leahy, who are both still members of the Judiciary Committee, can reopen the matter. The day after Kavanaugh’s nomination, Durbin tweeted his 2007 letter, saying, “I’m still waiting for an answer.” Durbin declined an interview request, but during a committee hearing on Thursday, he mentioned the letter again. “He’s going to get a chance to respond now, when he appears before this committee under oath, as to what he was trying to tell us, and what he actually did tell us when it came to this important issue,” Durbin said. Leahy’s office also declined an interview request. The White House declined to comment.