Bench Memos

Law & the Courts

Democrats’ Demand for Kavanaugh’s Documents Is More Than a Little Odd

To hear some Senate Democrats and their progressive allies tell it, the first they heard of Brett Kavanaugh was when President Donald Trump nominated him to the Supreme Court. Others act as if, while they may have recognized the name, they certainly knew nothing about him.

Either way, they insist, Kavanaugh is cipher, a mystery, an unknown quantity. To get a fix on who he really is, they say, requires casting a very wide net.

That’s the spin being used to justify a fishing expedition through Kavanaugh’s distinguished career, but it’s not the truth. Here’s what the Left doesn’t want you to know.

President George W. Bush nominated Kavanaugh to the D.C. Circuit on July 25, 2003, but he was not confirmed until May 26, 2006, more than 1,000 days later. The Senate Judiciary Committee held not one, but two, hearings for Kavanaugh under not one, but two, different chairmen. Since the Jimmy Carter administration, only 3 percent of appeals-court nominees received this level of scrutiny.

Here’s what Kavanaugh’s résumé looked like in May 2006, when he had his second hearing: Four years in private practice, one year in the Office of the Solicitor General, four years in the Office of Independent Counsel, two years in the White House Counsel’s Office, and three years as staff secretary to President Bush.

It’s worth noting that the American Bar Association, which really emphasizes courtroom experience and has never been accused of favoring Republican appointees, gave Kavanaugh its highest well qualified rating in 2006.

Still, it wasn’t surprising when, in Kavanaugh’s 2006 hearing, Senator Dianne Feinstein (D., Calif.) said: “Without a record either as a trial lawyer or as a judge, it’s very difficult for some of us to know what kind of judge you would be.” She had a point: The best way to know the kind of judge Kavanaugh will be is to look at the kind of judge he has been.

That wasn’t possible in 2006, but it certainly is today. Kavanaugh has served on the D.C. Circuit longer than all of his executive-branch service combined. He has written 307 judicial opinions. This material is certainly the most relevant to his Supreme Court nomination.

Twenty-six Supreme Court justices had previously served, for an average of seven years, on the U.S. Court of Appeals. Kavanaugh, with twelve years on the bench, brings to his Supreme Court nomination longer appeals-court service than 70 percent of those who preceded him.

Unfortunately, many of Kavanaugh’s critics have already announced their opposition, some even before President Trump announced his selection. That makes their demand for documents and other material unrelated to Kavanaugh’s judicial service more than a little odd. Obviously, the information will have no effect on their position.

So here’s the current state of confirmation play: Senators and groups that already oppose Kavanaugh are demanding access to the least relevant part of his record, much of which was available during the extensive scrutiny he faced for his appeals-court appointment. If that’s not obstruction for its own sake, what is?

Thomas Jipping — Thomas Jipping is deputy director of the Meese Center for Legal and Judicial Studies and senior legal fellow at the Heritage Foundation.

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