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Booker Confidential - Kavanaugh Hearing
Booker Confidential - Kavanaugh Hearing
Kavanaugh/OU=WHO/O=EOP [WHO])
Sent: Wednesday, August 08, 2001 2:12 PM
To: Timothy E. Flanigan ( CN=Timothy E. Flanigan/OU=WHO/O=EOP@EOP [WHO])
Cc: noel j. francisco ( CN=noel j. francisco/OU=who/O=eop@eop [WHO]); alberto r. gonzales (
CN=alberto r. gonzales/OU=who/O=eop@eop [WHO]); brett m. kavanaugh ( CN=brett m.
kavanaugh/OU=who/O=eop@eop [WHO])
Subject: : Re: Adarand
###### Begin Original ARMS Header###### RECORD TYPE: PRESIDENTIAL (NOTES MAIL) CREATOR:Brett M. Kavanaugh (
CN=Brett M. Kavanaugh/OU=WHO/O=EOP [WHO]) CREATION DATE/TIME: 8-AUG-200114:12:06.00
SUBJECT:: Re: Adarand
TO:Timothy E. Flanigan ( CN=Timothy E. Flanigan/OU=WHO/O=EOP@EOP [WHO]) READ:UNKNOWN CC:noel j. francisco (
CN=noel j. francisco/OU=who/O=eop@eop [WHO]) READ:UNKNOWN CC:alberto r. gonzales ( CN=alberto r.
gonzales/OU=who/O=eop@eop [WHO]) READ:UNKNOWN CC:brett m. kavanaugh ( CN=brett m.
kavanaugh/OU=who/O=eop@eop [WHO]) READ:UNKNOWN
###### End Original ARMS Header ######
As to point 1, that would introduce a concept that, at least to my knowledge, has not previously appeared in the
Supreme Court's equal protection jurisprudence, which means it would require an elaboration and justification in the brief.
As to merits of a deliberate indifference standard, four questions. First, would it mean that a victim of private
discrimination could sue the government on some theory that the government was merely deliberately indifferent to (rather
than the cause of) the private discrimination? If so, that might suggest an extraordinary expansion of governmental
responsibility and liability for private racial discrimination. Second, how would one prove that the federal government was
deliberately indifferent to private discrimination apart from simply proving widespread private discrimination in the relevant
jurisdiction and
field, which presumably is the requirement under current law anyway?
Third, and looking at it from the flip side, what precisely would this new requirement add in terms of limiting the government's
use of race-based classifications? What exactly would be allowed under current law but be prohibited with the deliberate
indifference standard? Fourth, the argument itself as outlined in the e-mail does not really hang together to the extent it
presupposes that these regulations do not use race-based remedies. The brief assumes that these regulations are in fact race-
based (although I do not believe the brief should assume as much).
The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what in
reality is a naked racial set-aside. I have no doubt that Rehnquist, Scalia, Thomas, and Kennedy will realize as much in short
order and rule accordingly -- unless the Court DIGs the case. I assume O'Connor will so rule as well, although
that is less certain.
Timothy E. Flanigan
08/08/200112:49:12 PM
Record Type: Record
REV 00289596
To: Noel J. Francisco/WHO/EOP@EOP
cc: alberto r. gonzales/who/eop@eop, brett m. kavanaugh/who/eop@eop
bee:
Subject: Re: Adarand
Noel J. Francisco
08/08/200111:59:28 AM
Record Type: Record
I have read the brief and have two initial reactions. First, in the "compelling interest" section, we should incorporate the
deliberate indifference standard. That is, argue that the widespread nature of the disparities gives rise to a presumption that
the Government, in the course of funding highway construction, was aware of the discrimination and deliberately indifferent to
it. This may not be sufficient in and of itself to justify race-conscious remedies. It is, however, sufficient to justify the narrowly
tailored regulations implementing this program.
Second, in the narrow tailoring section, I would simply move the last 8 parpagraphs of the brief -- which address the certification
requirement that limits the race preference only to DB E's that have actually suffered discrimination -- into a separate argument
that would be the first argument under narrow tailoring. Since we're making this argument anyhow, I don't see how the SH
could object to a imple reordering of it. This, moreover, would focus the Court on the aspect of the program that makes it most
likely to survive strict scrutiny.
REV 00289597
From: Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/O=EOP [WHO])
Sent: Thursday, January 17, 2002 9:58 AM
To: Helgard C. Walker ( CN=Helgard C. Walker/OU=WHO/O=EOP@EOP [WHO])
Subject: : Re: Racial Profiling
###### Begin Original ARMS Header###### RECORD TYPE: PRESIDENTIAL (NOTES MAIL) CREATOR:Brett M. Kavanaugh (
CN=Brett M. Kavanaugh/OU=WHO/O=EOP [WHO]) CREATION DATE/TIME:17-JAN-2002 10:57:53.00
SUBJECT:: Re: Racial Profiling
TO:Helgard C. Walker ( CN=Helgard C. Walker/OU=WHO/O=EOP@EOP [WHO]) READ:UNKNOWN
###### End Original ARMS Header ######
The people who favor some use of race/natl origin obviously do not need to grapple with the "interim" question. But
the 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 implemented.
Helgard C. Walker
01/17/2002 10:47:08 AM
Record Type: Record
I do, b/c that is what Noel was purporting to represent. His opening words were something to the effect of, "Well I think Joel's
point was ...
You are right that we will have to grapple with the interim issue eventually, if we decide that our general policy will somehow be
one that relies on more information and a system that take time to set up. But until we decide the general policy we can't get to
the q of interim, which I admit is hard. I am not sure what the answer is to that.
Brett M. Kavanaugh
01/17/2002 10:37:29 AM
Record Type: Record
REV 00328552
Understood. I do not really care what Joel was or was not advocating or discussing. At staff meeting, I was curious
about your position on the interim issue and explaining that the interim security needs almost by definition have to be one focus
of you and the working group. That does not mean there are easy answers to that interim issue.
But that issue certainly cannot -- or at least should not -- be
avoided.
Helgard C. Walker
01/17/2002 10:27:29 AM
Record Type: Record
And my only point is that there is no agreement in the working group on the general policy. And when Joel was in here
yesterday and we were debating the issue, he was not, as Noel suggested, arguing only about the interim. He was asking about
the use of race in the bigger picture.
Brett M. Kavanaugh
01/17/2002 10:22:25 AM
Record Type: Record
I still did not think anyone ever said the interim issue was the "only question" as your e-mail says ... My only point was
that your long-term approach, with which I agree entirely, still leaves the interim question, which actually is of critical
importance to the security of the airlines and American people in the next 6 months or so, especially given Al Qaeda's track
record of timing between terrorist incidents.
Helgard C. Walker
01/17/2002 10:12:14 AM
Record Type: Record
In light of our discussion at staff meeting this morning, I wanted to confirm for everybody -- especially the Judge --the
issues up for decision in the internal administration working group.
REV 00328553
To be clear, it is not the case that there is widespread agreement in the group that we should be working toward a race-
neutral (or as race-neutral as possible) system for airport security and other law enforcement, such that the only question
presented is how to handle security between now and the time that such a system is put in place -- i.e., the "what-to-do-in-the-
interim" question.
Rather, the question is whether we should work toward a race-neutral system at all or whether we should instead
permit the use of race as a factor in certain circumstances. My own view is that, as required by traditional Equal Protection
standards, we must at least consider how to construct a race-neutral system. I can imagine such a system that could be
effective, perhaps even more effective than one based on racial classifications. For instance, you could break air passengers
down into groups of those with/without U.S. passports, those with/without recent international travel, those with/without
criminal history, et cetera, and subject persons in higher risk categories to higher levels of scrutiny. This sort of system would
require airlines and/or governmental authorities to obtain more personal information from the flying public, and there is some
resistance to that within the group on the grounds that that would too burdensome, invasive of privacy, and so forth.
Another school of thought is that if the use of race renders security measures more effective, than perhaps we should be
using it in the interest of safety, now and in the long term, and that such action may be legal under cases such as Korematsu.
The point being that the foregoing -- the general policy, not the
interim policy -- is what we are currently debating in the group. Of
course, if it were decided that our general policy should be to try and devise a race-neutral system, we would be at the juncture
of deciding upon interim measures. And that is, admittedly, not an easy question. But we are not there yet.
HCW
Message Copied
To: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Courtney S. Elwood/WHO/EOP@EOP
Brett M. Kavanaugh/WHO/EOP@EOP
Bradford A. Berenson/WHO/EOP@EOP
H. Christopher Bartolomucci/WHO/EOP@EOP
Robert W. Cobb/WHO/EOP@EOP
Noel J. Francisco/WHO/EOP@EOP
Rachel L. Brand/WHO/EOP@EOP
REV 00328554
From: CN=Bradford A. Berenson/OU=WHO/O=EOP [ WHO ]
To: Courtney S. Elwood/WHO/EOP@EOP [ WHO ] <Courtney S. Elwood>
CC: brett m. kavanaugh/who/eop@eop [WHO] <brett m. kavanaugh>;alberto r. gonzales/who
/eop@eop [ WHO ] <alberto r. gonzales>;timothy e. flanigan/who/eop@eop [ WHO ] <timothy e.
flanigan>;bradford a. berenson/who/eop@eop [WHO] <bradford a. berenson>;helgard c.
walker/who/eop@eop [ WHO ] <helgard c. walker>;stuart w. bowen/who/eop@eop [ WHO ]
<stuart w. bowen>;h. christopher bartolomucci/who/eop@eop [ WHO ] <h. christopher
bartolomucci>;rachel I. brand/who/eop@eop [WHO] <rachel I. brand>;noel j. francisco/who
/eop@eop [WHO] <noel j. francisco>;robert w. cobb/who/eop@eop [WHO] <robert w. cobb>
Sent: 3/27/2001 3:15:40 AM
Subject: : Re: Adarand -- other considerations
Courtney S. Elwood
03/27/2001 08:12:14 AM
Record Type: Record
REV 00125571
General's Duty To Defend the Constitutionality of Statutes, 43 Op. Atty.
Gen. 325 (1981) (Opinion of Attorney General Smith); The Attorney
General's DutyTo Defend and Enforce Constitutionally Objectionable
Legislation, 43 Op. Atty. Gen. 275 (1980) ." Letter from Dick Thornburgh
to Senator Strom Thurmond, dated Oct. 7, 1999 (appended to the Brief of
Amici Curiae former Attorneys General of the United States William P. Barr
and Edwin Meese III Supporting Affirmance in Dickerson v. United States,
No. 99-5525.
Brett M. Kavanaugh
03/26/2001 08:58:32 PM
Record Type: Record
REV 00125572
recommendations. Of course, the President is the head of the Executive
Branch and in particularly important Supreme Court cases previous
Presidents have approved -- and, on occasion, disapproved -- the
Department of Justice's recommended course of action. In any particularly
important case like that, however, this President would await the
Department of Justice's recommendation before making any decision.
Message Sent
To:
Alberto R. Gonzales/WHO/EOP@EOP
Timothy E. Flanigan/WHO/EOP@EOP
Bradford A. Berenson/WHO/EOP@EOP
Helgard C. Walker/WHO/EOP@EOP
Courtney S. Elwood/WHO/EOP@EOP
Stuart W. Bowen/WHO/EOP@EOP
H. Christopher Bartolomucci/WHO/EOP@EOP
Rachel L. Brand/WHO/EOP@EOP
Noel J. Francisco/WHO/EOP@EOP
Robert W. Cobb/WHO/EOP@EOP
Message Copied
To:
alberto r. gonzales/who/eop@eop
timothy e. flanigan/who/eop@eop
bradford a. berenson/who/eop@eop
helgard c. walker/who/eop@eop
stuart w. bowen/who/eop@eop
h. christopher bartolomucci/who/eop@eop
rachel 1. brand/who/eop@eop
noel j. francisco/who/eop@eop
robert w. cobb/who/eop@eop
REV 00125573
From: Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/O=EOP [WHO]) [mailto:Brett M. Kavanaugh ( CN=Brett
M. Kavanaugh/OU=WHO/O=EOP [WHO] )]
Sent: Wednesday, April 24, 2002 9:40 AM
To: Noel J. Francisco ( CN=Noel J. Francisco/OU=WHO/O=EOP@EOP [WHO])
Subject: : Re: LRM JAB205 0MB Request for Views on S Native American Small Business
###### Begin Original ARMS Header###### RECORD TYPE: PRESIDENTIAL (NOTES MAIL) CREATOR:Brett M. Kavanaugh (
CN=Brett M. Kavanaugh/OU=WHO/O=EOP [WHO]) CREATION DATE/TIME:24-APR-2002 09:39:34.00
SUBJECT:: Re: LRM JAB205 0MB Request for Views on S Native American Small Business TO:Noel J. Francisco (
CN=Noel J. Francisco/OU=WHO/O=EOP@EOP [WHO]) READ:UNKNOWN
###### End Original ARMS Header ######
FYI
---------------------- Forwarded by Brett M. Kavanaugh/WHO/EOP on
04/24/2002 09:39 AM ---------------------------
Brett M. Kavanaugh
04/23/2002 09:04:57 PM
Record Type: Record
Patrick J. Bumatay
04/23/2002 11:37:40 AM
Record Type: Record
REV 00339902
James A. Brown
04/23/2002 10:57:14 AM
Record Type: Record
DISTRIBUTION LIST
AGENCIES:
025-COMMERCE - Michael A. Levitt - (202) 482-3151
059-INTERIOR - Jane Lyder - (202) 208-4371
061-JUSTICE - Daniel Bryant - (202) 514-2141
107-Small Business Administration - Richard Spence - (202) 205-6700
EOP:
WHGC LRM
NEC LRM
Philip J. Perry
Matthew J. Schneider
OVPLRM
David S. Addington
K. Philippa Malmgren
Aquiles F. Suarez
Gary Ceccucci
REV 00339903
Ann Kendrall
Christine Ciccone
Christine C. McCarlie
Lauren C. Lobrano
Stephen S. McMillin
Alan B. Rhinesmith
James Boden
Janis A. Coughlin
Richard E. Green
James J. Jukes
Anna M. Briatico
Dirksen Lehman
Sarah S. Lee
Pamula L. Simms
David Rostker
LRM ID: JAB205 SUBJECT: 0MB Request for Views on S____ Native
American Small Business Development Program
RESPONSE TO
LEGISLATIVE REFERRAL
MEMORANDUM
FROM: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Date)
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Name)
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Agency)
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Telephone)
The following is the response of our agency to your request for views on
the above-captioned subject:
___ Concur
REV 00339904
_ _ _ No Objection
_ _ _ No Comment
_ _ _ Other: _ _ _ _ _ _ _ _ _ _ __
Message Sent
To:
--------------------------
cl a@ sb a.gov @ inet
[email protected]
[email protected]
[email protected]
WHGC LRM
NEC LRM
Philip J. Perry/OMB/EOP@EOP
Matthew J. Schneider/OMB/EOP@EOP
OVPLRM
David S. Addington/OVP/EOP@EOP
K. Philippa Malmgren/OPD/EOP@EOP
Aquiles F. Suarez/OPD/EOP@EOP
Gary Ceccucci/OMB/EOP@EOP
Ann Kendrall/OMB/EOP@EOP
Christine Ciccone/WHO/EOP@EOP
Christine C. McCarlie/OMB/EOP@EOP
Lauren C. Lobrano/OMB/EOP@EOP
Stephen S. McMillin/OMB/EOP@EOP
Alan B. Rhinesmith/OMB/EOP@EOP
James Boden/OMB/EOP@EOP
Janis A. Coughlin/OMB/EOP@EOP
Richard E. Green/OMB/EOP@EOP
James J. Jukes/OMB/EOP@EOP
Anna M. Briatico/OMB/EOP@EOP
Dirksen Lehman/WHO/EOP@EOP
Sarah S. Lee/OMB/EOP@EOP
Pamula L. Simms/OMB/EOP@EOP
David Rostker/OMB/EOP@EOP
REV 00339905