The media are desperate to lend support to congressional Democrats in their frenzied opposition to the appointment of Brett Kavanaugh, an otherwise qualified jurist, to the Supreme Court. On MSNBC’s All In Monday night, host Chris Hayes cherry-picked a single remark in order to denigrate the federal judge.
Hayes reported: “The A.P. dug through thousands of pages of documents released as part of Kavanaugh’s confirmation process and found a 1999 article in which Kavanaugh questioned whether the unanimous Supreme Court decision [U.S. v. Nixon] was in fact correct.” This single remark made twenty years ago is of the utmost importance because, according to Hayes, “Precedent will indeed play a major role in Kavanaugh’s confirmation process, whether it would be, say, Roe v. Wade or United States v. Nixon.”
The remark that Nixon might have been wrongly decided was found in a transcript from a round-table with Kavanaugh and attorneys representing President Clinton in 1999. As the National Review reports, Kavanaugh was actually defending the decision in Nixon, demonstrating that the Clinton defense team could not claim privilege without undermining precedent.
Hayes mentions briefly that “Kavanaugh allies say he has other writings on the case including some that sound more favorable,” without citing a single such writing. Other than defending Nixon in that transcript, Kavanaugh most recently wrote in the Notre Dame Law Review in 2014 and in the Catholic University Law Review in 2015 articles praising the decision. Not only did Hayes falsely equate off-the-cuff rhetoric in a transcript to scholarly legal writings, but he also mentioned, almost as an afterthought, the existence of a robust record that proves Kavanaugh’s sound reasoning.
Nevertheless, that single remark taken out of context was enough for Hayes to claim that Kavanaugh’s opinion “is far outside the legal mainstream,” a common but unfounded criticism of the court nominee. Hayes likewise argued that “It is also of screaming significance as we head towards an almost certain legal showdown between the White House and the Mueller team over a possible presidential interview,” tying the comment to a greater conspiracy that Kavanaugh will be Trump’s “man on the inside” of the Supreme Court. Apparently without doing a single moment’s worth of research, Chris Hayes took a single comment out of context in an attempt to bolster Democratic attacks on Kavanaugh.
The full transcript can be read below:
All In with Chris Hayes
CHRIS HAYES: But Precedent. Precedent will indeed play a major role in Kavanaugh’s confirmation process, whether it would be, say, Roe v. Wade or United States v. Nixon. The case that compelled Richard Nixon to turn over the Watergate tapes. The A.P. dug through thousands of pages of documents released as part of Kavanaugh’s confirmation process and found a 1999 article in which Kavanaugh questioned whether the unanimous Supreme Court decision was in fact correct. Quoting him here: “But maybe Nixon was wrongly decided- heresy though it is to say so.” Well, yes, it is, Brett. “Maybe the tension of the time led to an erroneous decision.” Now, that opinion, that it was wrongly decided, is far outside the legal mainstream. It is also of screaming significance as we head towards an almost certain legal showdown between the White House and the Mueller team over a possible presidential interview, one whose fate will almost certainly be decided by the Supreme Court interpreting and applying the Nixon precedent. Kavanaugh allies say he has other writings on the case including some that sound more favorable. But how much more of his work will we get to see? Kavanaugh’s a former Bush administration member. His documents from that time in the White House are public record. In other words, they belong to us the people. Majority leader Mitch McConnell is already maneuvering to curtail a detailed examination of those records, interestingly enough, setting up a showdown right before the midterms. What Democrats can do about the Supreme Court and more headed into November, next.