UI prof who worked with nominee: Kavanaugh 'a good guy, very smart'

UI prof who worked with nominee: Kavanaugh 'a good guy, very smart'

URBANA — Supreme Court nominee Brett Kavanaugh is conservative, and not everyone will like his opinions, but he's not the political operative some paint him to be, according to a former colleague from his Whitewater investigation days.

University of Illinois law Professor Andrew Leipold worked with Kavanaugh as part of independent counsel Kenneth Starr's legal team back in the 1990s, investigating former President Bill Clinton. Leipold, an expert in criminal law and procedure, was a consultant, and Kavanaugh was an associate counsel and a co-author of the report laying out the grounds for Clinton's impeachment.

That history, and his later work for President George W. Bush, drew intense scrutiny from Democrats when Kavanaugh was first nominated as an appellate court judge. Opponents fear he might be the crucial fifth vote to overturn the Roe v. Wade decision legalizing abortion and curtail affirmative action, gay rights and the Affordable Care Act.

"He can't possibly be as conservative as some people are making him out to be," Leipold said. "He's conservative ... but I think he is respectful of the court and the court system as institutions. I think that's really important. You don't want people to think that this is just another way to do politics. It's not. And Brett understands that."

Starr placed Kavanaugh in charge of investigating the suicide of former Clinton aide Vincent Foster, and some accounts say Kavanaugh pushed Starr to take a hard line in questioning Clinton about the Monica Lewinsky affair, according to the Washington Post.

Later, though, in a 2009 Minnesota law review article, Kavanaugh expressed misgivings about the way the investigation unfolded, arguing that a president should not have to face civil lawsuits or investigations during his time in office because they would be "time-consuming and distracting," the Post said.

National pundits have speculated that might have been part of Kavanaugh's appeal to President Donald Trump, who is highly critical of special counsel Robert Mueller's investigation into possible ties between the Trump campaign and Russian interference in the 2016 election.

Leipold said it's possible Kavanaugh's feelings simply evolved over time but noted that Kavanaugh had authored a similar article in 1998, near the end of the Starr investigation, in which he said he "fully appreciated that this could be disruptive of the president doing his duties. But we were operating under a law that said this is what the independent counsel's job is, so that's what we did," Leipold said.

"An 'operative' makes it sound like someone who just sort of didn't care what the facts were and was only interested in painting it in its most unflattering" light, Leipold said.

"We all had our views," he said, but those who ended up working on the final Starr report understood it was a "consensus-building operation. It didn't matter what I thought or what Brett thought in particular."

Starr listened to different points of view but ultimately he and his deputies decided what wound up in the report, he said.

In the Post account, Starr said he chose Kavanaugh to write the crucial section on impeachment because he would be dispassionate, saying "this was not a man on a mission."

"If you're intent on him being a bad guy, there's ways you can characterize practically anything — that it was all part of a strategy, a clever move, or purely partisan ends. I don't think that's who he is. I don't think he's wired that way," Leipold said.

"He's a good guy, very smart, very conscientious, very thoughtful, a good colleague, unbelievably hard-working," Leipold said. "He cared about the details. He wanted to make sure we got it right. If we said something, by golly, we needed to dig back through the boxes of grand jury transcripts to make sure that's exactly what was said."

Leipold isn't fond of all of Trump's appointees, but he called Kavanaugh a good choice and expects the nomination to go through.

"He's young, he's very smart, and I think he will be quite influential on the court," Leipold said.

"I understand people won't like him because of the way he's likely to rule on certain issues. That doesn't mean he's not a highly qualified, honest, ethical guy," he said.

Leipold also said it was unfair for the GOP-led Congress to deny Merrick Garland — chief justice of the U.S. District Court of Appeals in Washington, where Kavanaugh also serves — a vote on his 2016 Supreme Court nomination by Barack Obama.

"A pox on both their houses," Leipold said. "When Congress decides that winning is more important than governing, this is the situation you find yourself in. The Senate should have voted up or down on Merrick Garland, who is a terrifically qualified judge and a great guy, too.

"Having bungled it once, I don't think doing it again just to show that they started it is really befitting great institutions and people who we elect to govern," Liepold said.

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