Lambda Legal and American Oversight Sue HHS in Quest for Kavanaugh Documents

Today, Lambda Legal and American Oversight filed a lawsuit seeking to compel the U.S. Department of Health and Human Services (HHS) to produce documents related to Supreme Court Justice Nominee Brett Kavanaugh’s work in the George W. Bush administration, particularly his involvement in policies that discriminated against LGBTQ children, families and relationships. The complaint was filed in the U.S. District Court for the District of Columbia.

Lambda Legal, a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV, and American Oversight, a non-partisan, nonprofit ethics watchdog committed to transparency and accountability in the executive branch, filed a similar lawsuit with the same court Sept. 4 against the U.S. Office of Management and Budget (OMB).

“On behalf of this country, we continue to ask the administration this urgent question: Is Brett Kavanaugh qualified for a lifetime appointment on the Supreme Court? Will he look upon everyone equally? The unwillingness of the Trump-Pence administration to share what they know of his history, and put it before the public, leaves grave doubts,” said Sharon McGowan, Lambda Legal Chief Strategy Officer and Legal Director.

The records sought are essential to informing the public about Judge Kavanaugh’s history and views regarding civil rights and equal protection for LGBT people.  Those records include Judge Kavanaugh’s past public service communications connected to watershed moments affecting LGBT rights during his tenure with the George W. Bush administration.  While judicial opinions are a matter of public record, equally important records reflecting his conduct and credentials before his federal court appointment are not. As of today, HHS has not shared any information regarding Kavanaugh’s actions while acting as Staff Secretary in the Bush White House.

"With a confirmation vote fast approaching, time is running out to uncover Brett Kavanaugh's track record," said Austin Evers, Executive Director of American Oversight. "It's imperative that the public and members of the Senate have a full and accurate picture of Kavanaugh's work in the Bush White House, but as it stands now, Kavanaugh's record is full of glaring holes.”

“Supreme Court vacancies are rare, and as justices are appointed for life, the decisions made when filling these positions can reverberate for decades, and are all but irrevocable.  The public has only one opportunity to assess Judge Kavanaugh’s fitness and that is now,” continued McGowan. “Brett Kavanaugh himself points to his tenure as George W. Bush’s staff secretary as years that were ‘in many ways among the most instructive’ for his later career on the court.  That alone is enough to warrant pause, as the George W. Bush White House was one of the most homophobic administrations in recent history.  The refusal of Senate Judiciary Committee Chairman Grassley to request those records while pushing a fast confirmation schedule is in itself a travesty of justice.”

Alongside the complaint, Lambda Legal is seeking a temporary restraining order (TRO) or preliminary injunction due to the urgency of releasing the records before the confirmation vote occurs. The motion seeking a TRO highlights Lambda Legal’s role in educating the public about the views of Supreme Court nominees regarding the rights of LGBT people.

McGowan added, “What we have identified in just the scarcest of records made available to the public was that Kavanaugh was the Bush administration in-house expert on faith-based initiatives.  Amongst his undertakings was a negotiation with the Salvation Army, which would have allowed the nonprofit organization to discriminate against LGBTQ workers while continuing to receive taxpayer money to the tune of hundreds of thousands of dollars.

“As Staff Secretary, Kavanaugh would have been at the center of the action during many other George W. Bush-era scandals that threatened LGBT rights, including a push to ban marriage for same-sex couples through a federal constitutional amendment, and secret payments made by the Bush administration to journalists to promote these efforts in the media. These are not anomalies, but rather three signs of a larger interest in promoting and creating actions designed to discriminate against LGBT people.”

“The impact that Kavanaugh's appointment to the Supreme Court would have on the rights and protections of the LGBTQ community—and of all Americans—cannot be overstated,” added Evers. “The public deserves to know exactly how Kavanaugh handled LGBTQ civil rights issues during his time in the White House."