Senate Democrats today are making the case that Brett M. Kavanaugh is “too much a conservative activist to deserve a federal appellate judgeship.”

In the process, they may experience some unsettling flashbacks to the Supreme Court confirmation of John G. Roberts Jr. — a big success for President Bush and Senate Republicans.

Like Roberts, Kavanaugh, 41, has spent most of his professional life in the service of conservative causes and bosses. Now White House staff secretary, Kavanaugh was deeply involved in Kenneth W. Starr’s investigations of President Bill Clinton regarding Whitewater and Monica S. Lewinsky.

The NY Times reports today, that “the American Bar Association said Monday that it had downgraded its rating” of Kavanaugh.

Senator Ted Kennedy made the following statement before the Senate Judiciary Committee today on the nomination of Brett Kavanaugh (as prepared for delivery) :

The Constitution gives the Senate the important responsibility of reviewing judicial nominations to guarantee that federal judges are truly independent, rather than merely a political extension of the White House. We must assure ourselves that judicial nominees, especially appellate nominees – particularly those to the D.C. Circuit – have the experience, ability, and temperament, for that key court, and a commitment to enforcing the basic constitutional and federal statutory protections that are central to our American democracy. If their primary qualification is partisan loyalty, they do not belong on any federal court, let alone the D.C. Circuit.

No matter where they live, all Americans are affected by appointments to the D.C. Circuit. It has a unique role among the federal courts in interpreting federal power. It’s been given exclusive jurisdiction over many laws that protect consumers, employees’ rights, civil rights, and the environment.

It’s the only federal appellate court that can hear appeals on rules to protect the environment under the Clean Air Act and the Safe Drinking Water Act. It has exclusive jurisdiction over constitutional challenges to the North American Free Trade Act. It decides far more appeals than any other circuit of decisions by the National Labor Relations Board on unfair labor practices. As a practical matter, because the Supreme Court can review only a small number of lower court decisions, the judges on the D.C. Circuit often have the last word on interpretations of these important rights.

As a result, the Committee needs to take special care in considering judges for lifetime positions on the D.C. Circuit. We must be confident that appointees to this prestigious court have the highest qualifications and ethical standards, and will fairly interpret the laws, particularly laws that protect our basic rights.

The ABA has now completed three evaluations of Mr. Kavanaugh’s qualifications. Each time they look more closely, his rating goes down, and now a majority of that committee does not believe he can meet their highest standard for federal nominees. Chairman Specter properly concluded that the ABA’s downgrading justified a Judiciary committee hearing to review the details of their investigation and determination. But apparently the White House feared what the ABA would say in public, because at the last minute, we were presented with a private telephone conference call in which most members were unable to participate and no Senator was able to join for more than a few minutes.

The White House fears were justified, since the ABA’s testimony and responses to staff questions raised a host of new questions which should be answered by the ABA and then by the nominee in open session. Among other revelations, it appears that, contrary to White House claims that changes in committee membership caused the downgrade, in fact many members of the ABA committee downgraded their own assessments of the nominee based on new information.

We don’t know whether the nominee will be any more responsive now than he was in his original hearing three years ago and in his long-delayed answers to written questions two years ago.

So we have a lot to do to meet our constitutional responsibilities in this matter. Yet we are told that we must meet some artificial deadline for dealing with this nomination in Committee. That’s uncalled for, and it would be irresponsible of us to consider this nomination until all the relevant questions have been asked and fully answered.

To start with, Mr. Kavanaugh has the heavy burden of showing that his White House experience qualifies him for this Court. He has less than half the average legal experience of D.C. Circuit nominees, having worked as an attorney for just over fourteen years, counting the time he spent as a law clerk. He’s been a practicing attorney for only ten years, and he’s never tried a case on his own or taken a case to verdict. When asked to name his ten most significant cases on his Senate questionnaire, Mr. Kavanaugh could identify only five in which he appeared in court, and only two in which he served as lead counsel.

So if, as a White House lawyer, he was not pursuing legal issues, he has a problem. If he was involved in legal issues, we need to know what they were, and what he did, and what he thought.

For example, I asked Mr. Kavanaugh whether he had any experience handling labor law matters. He couldn’t provide a single example of work in this area – not one. Instead, he made only a vague reference to his work as a law clerk and his brief time in the Justice Department. He also couldn’t give even one example showing that he has any experience involving the Endangered Species Act, the Clean Air Act, the Safe Drinking Water Act, or any other aspect of environmental law. Yet the D.C. Circuit plays a critical role in deciding questions under these statutes.

Mr. Kavanaugh is clearly intelligent and well-educated, but there’s no question he lacks the depth of knowledge and legal experience that we expect for judges on the D.C. Circuit. The qualifications that he does have are weighted heavily toward partisan politics.

Whether you agree or disagree with the political positions he’s advanced during his career, there’s no question that he’s been a partisan political operator, not a litigator.

Much of his public service has been in the current Bush White House, where his duties included recommending some of the President’s most bitterly divisive judicial nominees. His best known work before the White House was investigating the death of Vincent Foster during the Clinton years, and drafting portions of the infamous Starr report.

He states that he worked on the Circuit nomination of Jay Bybee, the author of the notorious memorandum that provided a blueprint for the Administration’s torture policy. He never provided that memorandum to us, so we were forced to vote on Bybee’s life-time appointment to the federal bench without ever knowing his full record. We need to know whether Mr. Kavanaugh knew anything about the Bybee torture memo at any time before Bybee was confirmed.

Today, when the need is great to de-politicize the nominations process, and members of both parties have expressed a desire for judges who will rise above partisan political interests, it is hard to see why the majority is pressing this candidate. President Bush says he wants independent judges, but his nominations speak louder than any words. He has nominated a clear partisan to one of the nation’s most important federal court of appeals – a person who has clearly shown through his own role in the nominations process that he views judges as political actors, not impartial decision-makers.

That is the real issue in this hearing, and it’s wrong to duck it.

UPDATE: The Washington Post reports that Kavanaugh appeared contenious today at his second nomination hearing:

In a 3 1/2- hour hearing before the Senate Judiciary Committee, Kavanaugh frustrated Democrats’ efforts to link him, even tangentially, to the administration’s biggest controversies. As have many other judicial nominees, he declined to answer some questions, cited forgetfulness in sidestepping others, and gave little insight into his political and philosophical views.

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