The second-ranking Democrat in the Senate said Tuesday that Judge Brett Kavanaugh misled senators during his 2006 confirmation hearing, and vowed to make the judge explain himself before winning a seat on the Supreme Court.
Sen. Richard Durbin said Judge Kavanaugh in that earlier hearing denied involvement in crafting the Bush White House’s policy on detainees and enemy combatants caught during the war on terror.
But Mr. Durbin said he now believes Judge Kavanaugh, who had been in the White House counsel’s office and later served as staff secretary to President George W. Bush, was involved in those decisions.
“He said, ‘I was not involved and am not involved in questions regarding the rules regarding detention of combatants,’” Mr. Durbin recalled Tuesday. “And then within a matter of months, we found out there was more to the story.”
Mr. Durbin claimed Judge Kavanaugh, who had clerked for Justice Anthony M. Kennedy, was involved in a heated discussion in the White House over legal rights for enemy combatants. According to media reports at the time, Judge Kavanaugh discussed what he thought Justice Kennedy might do about the issue if it came before the Supreme Court.
Mr. Durbin said he wrote Judge Kavanaugh a letter 12 years ago asking about the discrepancy between his testimony and the media reports, but never received an answer.
“Under oath he stated one thing and now we have limited but some documentary evidence to the contrary — that’s worth a question, isn’t it?” Mr. Durbin said.
Republicans said Mr. Durbin is rehashing a non-controversy that was already settled 12 years ago.
Judiciary Committee Chairman Chuck Grassley said Judge Kavanaugh, while in the White House counsel’s office, advised colleagues he didn’t think Justice Kennedy would side with the Bush administration’s contention that enemy combatants could be denied lawyers.
Mr. Grassley said he saw no discrepancy between that and Judge Kavanaugh’s testimony, and added that the Justice Department’s Public Integrity Section looked at the allegations in 2006 and couldn’t justify opening an investigation based on the evidence.
“Multiple sources have confirmed that Judge Kavanaugh did not participate in crafting the Bush Administration’s detention and interrogation policies and was not even authorized to know about the tightly compartmentalized detainee treatment policies,” Mr. Grassley said in his letter.
The fight comes as Democrats accuse Republicans of trying to hide Judge Kavanaugh’s record from the public.
Democrats have requested every document from his time in the White House, which could mean millions of pages would have to be produced. Republicans say the request is a tactic to delay the judge’s confirmation.
They’ve asked for the George W. Bush presidential library to release records from Judge Kavanaugh’s time in the White House counsel’s office from 2001 to 2003 but did not demand documents from his time as Mr. Bush’s staff secretary from 2003 to 2006.