OPINION: Kavanaugh’s Post-9/11 Decisions Prove His Commitment To Rule Of Law

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Michael Thielen Executive Director, Republican National Lawyers Association
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In last week’s confirmation hearings, Judge Brett Kavanaugh was twice asked to describe his experience on September 11, 2001. In long days of hearings filled with irrelevant political posturing, what relevance did these questions have?

Quite a lot, as it turns out. His experience on 9/11 and his subsequent legal judgments shed unique light on who he is as a person, his courage, and the independence of his legal thought.

It is all too easy to forget the shock, fear and uncertainty of that Tuesday morning seventeen years ago. Most of us watched in horror, gathered in living rooms, cafeterias, break rooms, classrooms and lobbies, living through our national nightmare from a distance, in little personal danger but forever changed just the same.

In response to questions from Senators Lindsay Graham and John Cornyn, Brett Kavanaugh described how he was at the White House that Tuesday morning, in the West Wing, when the second World Trade Center Tower was hit and the world realized that this was not an accident but a deliberate act of terrorism. He had gone on a first date the night before with another member of the White House staff, Ashley Estes, who is now his wife.

They did not know the target for Flight 93, and the White House was considered its potential goal before it crashed in a Pennsylvania field due to the heroic sacrifice of the Americans on board. He described how Secret Service started screaming at everyone to evacuate, and the staff sprinted out. His future wife, Ashley, was right in front of him.

There were no smartphones, and their cell phones were not working; the staff were “bewildered.” He ended up a few blocks away, watching the TVs at a hotel as towers fell.

Kavanaugh recounted how the attacks “changed America, changed the world, changed the presidency, changed Congress, changed the courts.” How the focus of President George W. Bush on September 12 was that this sort of attack would not happen again, and how he was with Bush every day from 2003 to his confirmation in 2006, seeing firsthand the former president’s commitment to preventing another terrorist attack.

Judge Kavanaugh’s experience on 9/11 and in supporting President Bush in the following years had an enormous impact on his life.

Yet in the White House emails released by Democratic Sen. Cory Booker, Kavanaugh — then serving as Associate Counsel to the President — said: “[T]he people (such as you and I) who generally favor effective security measures that are race-neutral in fact DO need to grapple — and grapple now — with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and maintained.”

This was in an email with the subject, “Racial Profiling,” written in January 2002, just four months after the September 11 attacks.

The email chain shows the White House Counsel’s staff grappling with the question of how to develop both interim and permanent security measures to protect people against a future Al-Qaeda attack. There were two potential approaches: a race-neutral approach and an approach that would take race into account to better protect security.

Kavanaugh was in favor of the race-neutral approach. While this might not seem so remarkable to us now, remember that in the months after 9/11, another similar attack by Al-Qaeda was viewed as a near certainty.

Security measures that might seem unthinkable to us now, including racial profiling, enjoyed widespread support among people, politicians and government staff alike. Brett Kavanaugh had the integrity and moral courage to stand against the popular fervor to provide security at almost any cost and only support security measures that were correct both legally and morally.

Another example of Judge Kavanaugh’s independence and commitment to the rule of law came after he was confirmed to the D.C. Circuit Court of Appeals. He wrote the majority opinion in Hamdan v. United States in 2012, holding that the military commission conviction of Osama Bin Laden’s bodyguard and driver Salim Hamdan, must be overturned because the conduct for which Hamdan was convicted occurred before the law he was convicted under was passed. Therefore, under the U.S. Constitution’s prohibition on ex post facto laws, his conviction had to be overturned.

When Sen. Cornyn wondered how Judge Kavanaugh could possibly do that, he responded, “The rule of law applies to all who come before the courts of the United States.” He said even enemy combatants and non-citizens are entitled to “equal justice under law.”

He went on:

“We are fortunate to have a wonderful federal judiciary. People in it who understand the difference between law and policy and are willing to apply principles of equal justice under law to anyone who comes before the court. Even the most unpopular possible defendant is still entitled to due process and the rule of law, and I’ve tried to ensure that as a judge.”

The Democrats tried to paint a picture last week of a judge who was loyal to the president (who appointed him) and willing to enact his policy preferences regardless of what the law says.

But as Senator Cornyn pointed out, Kavanaugh was at the White House and with President Bush in the aftermath of 9/11, helping to develop policies to respond to the attacks and observing the President’s commitment to fighting terrorism. Yet, he was able to set aside his harrowing personal experiences when he put on the judicial robe to rule in favor of an extremely unpopular defendant detained by and prosecuted under the Bush administration because the Constitution demanded it.

Judge Kavanaugh’s loyalty is to the Constitution and the laws of the United States.

As we pause this week to remember the horrific terrorist attacks of 9/11, the lives lost and the heroic sacrifices of many Americans on that morning seventeen years ago and in the years since, let us not forget that respect for the rule of law is what sets us apart from so many other places where terrorism flourishes and what makes us a target for violent extremists in the first place.

America is great because the protections in our Constitution are not just parchment barriers. America is great because the protections in our Constitution even apply to enemy combatants who conspire against us. America is great because a judge who experienced the effects of and response to terrorism firsthand can follow the Constitution, even when it compels an unpopular result in favor of a terrorist.

The rule of law and respect for the Constitution creates the freedom that protects us all.

Michael Thielen is executive director of the Republican National Lawyers Association.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.