Bret Kavanaugh - Constitutionalist Hero or Swamp Creature?

The Controversy

For the past week or so, I've been having a conversation with @mepatriot about SCOTUS nominee, Judge Brett Kavanaugh. He seems to be of the opinion that Kavanaugh is a swamp creature who covered for the Clintons. As evidence for this, he presented me with an article from a website called Sons of Liberty Media, which reprinted the story from The Freedom Outpost by Tim Brown.

"Judge Brett Kavanaugh," by the U.S. Court of Appeals for the District of Columbia Circuit, taken from Wikipedia.Com; this image is in the public domain.

The Facts

This article mentions that then Independent Assistant Attorney to Clinton Probe lead Kenneth W. Starr, Brett Kavanaugh aided in the cover-up of the Vince Foster case, which was a case in which Mr. Foster died under mysterious circumstances that were ultimately ruled to be a suicide.

The Vince Foster Suicide

There is a significant amount of controversy surrounding this case. There is an article by Michael Rivero on What Really Happened which presents a significant amount of evidence that brings the official report under question. Police were not given access to his office, initially following the report of his death. Documents were stolen from his office and wound up in the oval office (Bill Clinton was POTUS at the time). The position of Mr. Foster's body, as well as a lack of prints on the weapon were not consistent with suicide. Finally, during this time, Bill Clinton was running for reelection, and so further scandals could have tanked his campaign. This article is making the claim that there is motive and evidence of murder in Mr. Foster's case. This is not a fringe opinion. Many people hold it, and there are unanswered questions that validate that belief.

IAA Brett Kavanugh's Role in this Case

Now, the article mentioned at the beginning of this editorial claims that, as IAA, Kavanaugh covered up the Vince Foster affair, but provides very little in the way of detail about that. When I dug deeper, I found this, admittedly left-biased article about the issue from Esquire by Charles P. Pierce. This article details how Kavanuagh sought to include the Vince Foster case in the wider probe, citing that there were enough anamolies about the case to do so, and then later agreed that suicide was the cause of death.

Editorial Analysis

The claim is that, because Brett Kavanaugh ultimately found that the official story about Vince Foster is true, it follows that he is cooperative member of "The Washington Swamp." Now, scare-quotes aside, The Swamp is very real, very corrupt, and very tyrannical. That being said, I question whether or not this proves that Kavanuagh is a part of it. I think that, all things considered, there are other more plausible explanations for his aparent change of heart on this case.

Kavanaugh's Judicial Record

To judge whether the man is a swamp creature or a constitutionalist, we have to look at his actual judicial record. This article from SCOTUS Blog, by Professor Rory Little goes through that in depth.

Bias for Defense

In general, it seems that Kavanaugh has a mild bias for the accused over the accuser in criminal cases. Considering that the burden of proof in criminal cases is supposed to be on the prosecution, I would say that's a pretty positive thing.

Fourth Amendment Issues

On this issue, Professor Little cites an article by Professor Orin Kerr. In that article, he analyzes Judge Kavanaugh's Fourth Amendment rulings, which seem to be mixed. He seems to be for things like "Stop and Frisk" (the practice of law enforcement professionals conducting impromptu pat-downs) where there is some sort of probable cause, as well as random drug testing by employers. However, when it comes to digital surveillance, he sides with the people over the government, by suggesting that installing a GPS device in order to gather evidence requires a warrant. Now, it seems to me that this is non-problematic. Stop and Frisk, if done under probable cause conditions, is not a violation of privacy, and while I am against the war on drugs, some employers do have a legitimate interest in making sure that their employees are not under the influence of certain drugs while at work. At the same time, his rulings on electronic surveillance seem to go against the Patriot Act, and that is a deeply positive thing.

Overall Analysis

Judge Kavanaugh is considered to be a moderate on criminal law cases. I think that's true in the sense that he has a pragmatic bent. However, I think he has also shown that he really takes the Bill of Rights seriously, which is why he has a slight bias for the defendant in criminal cases and has taken a somewhat constitutionalist perspective with regards to electronic surveillance. Overall, I don't think his record looks like the record of a swamp creature.

Kavanaugh's Relationship to the Vince Foster Controversy

As the first article pointed out, IAA Kavanaugh did, ultimately endorse the official story with regards to the Vince Foster case. However, it should also be pointed out that he was the one who dug it back up in the first place. This seems to fly in the face of the claim that he is a swamp creature in league with the Clintons; the very fact that he dug it back up was a serious embarrassment for them. Now, personally, I find it unlikely, given the evidence, that Vince Foster killed himself. It definitely looks like a murder to me. The motive is there. The forensic evidence makes suicide, from a technical standpoint, unlikely. I think the Clintons arranged for Vince Foster to be killed.

So then, assuming that Brett Kavanaugh is a reasonable, uncorrupted human being, why would he back off and accept the official story? I think there are any number of reasons, not the least of which is, perhaps fear for his own physical and political life. The Clintons were a very powerful couple who seem to have made a number of problematic people disappear; including, obviously, Vince Foster himself.

Now, we may never know why then IAA Brett Kavanaugh chose to back off of his claim that the Clinton's may have been involved in the murder of Vince Foster. That being said, what seems more likely? That, in cooperation with the deep state and the Clintons, he chose to first bring up, and then drop the Vince Foster case? Or, perhaps, is it more likely that, once he went after the Clinton's he faced certain pressures that he hadn't anticipated, and decided that pursuing it wasn't worth the risk to his life and career? And if it is the latter, do we then dismiss his entire judicial record and write him off as a swamp creature?

I, for one, do not condemn the man for this. I think the most likely explanation is that the Clintons came after him the same way they come after everyone who stands in their way; with raw thuggery. Brett Kavanaugh may have been acting tactically, or he may have chosen cowardice. But even if it's the latter, unless you've been in that situation yourself, you should think long and hard before throwing that stone.