Bench Memos

Law & the Courts

Contra Podesta and Stern on Schumer’s Delusory Document Demand

In this post last week, I explained that the unprecedented volume of executive-branch records that Senate Judiciary Committee chairman Chuck Grassley is seeking on the Kavanaugh nomination far exceeds what any senator could reasonably expect and, further, that Senator Schumer’s demand for the additional millions of pages of documents that passed through Brett Kavanaugh’s office when he was White House staff secretary (as well as the countless other records that merely mention his name or initials) is patently unreasonable and a cynical effort to obstruct the nomination.

In an op-ed yesterday in the Washington Post, John Podesta and Todd Stern, who each served stints as staff secretary under President Clinton, argue in support of Schumer’s demand. But they get some key things wrong:

1. Podesta and Stern try to dispute the account of the staff secretary role in President George W. Bush’s White House that my EPPC colleague (and former Bush White House staffer) Yuval Levin and others have provided. They state that, in their role as staff secretary in the Clinton White House, they “wrote concise cover memos for every decision memo that went to the president.” They assume or imply that Kavanaugh did the same for President Bush. But I am reliably informed that Kavanaugh and other staff secretaries under President Bush did not write cover memos for presidential decision memos. (One source tells me that in creating the new position of Deputy Chief of Staff for Policy, the Bush White House made it unnecessary for the staff secretary to write cover memos for presidential decision memos.)

Podesta and Stern also caricature Levin and others as claiming that Kavanaugh as staff secretary was “merely a paper pusher in the White House.” But Levin makes quite clear that the fact that the staff secretary role “was in essence procedural and not substantive” did not mean that it was not important. Among other things, the position demanded “a person with intense attention to detail, no patience for cutting corners, and a willingness to insist that various White House offices and the colorful characters who often occupy them do their jobs and play their parts.” Further, the “staff secretary can be influential in a few ways: by sheer proximity to the president (few people spend more time with the chief executive), by exercising some judgment about what documents flow to the president and which do not, and by making prudential choices in the staffing process about which of the competing views of various White House offices and officials to draw out or to insist are further represented in the papers that reach the president.”

Levin’s critical point, to which Podesta and Stern have no response, is that none of these ways in which the staff secretary might have had influence “would really be evident by examining the documents that circulated through the staff secretary’s office 15 years ago.” In short:

A review of all the paperwork that circulated through Kavanaugh’s office when he was staff secretary would pretty much amount to a review of all the paperwork that circulated through the White House in those years, and yet would also reveal essentially nothing about Kavanaugh. It would mostly amount to a monumental waste of the Senate’s time.

2. Amazingly, Podesta and Stern purport to be entirely blind to the cost-benefit analysis that always properly informs the Senate’s demand for records on a nominee. They instead glibly write: “Just as it was fair for senators to review Justice Elena Kagan’s documents as a policy adviser in the Clinton White House, it is fair for them now to review those of Kavanaugh as staff secretary.”

Kagan’s situation is dramatically different from Kavanaugh’s. For starters, the total number of pages of White House records for Kagan amounted to only 170,000 pages. Grassley already expects to receive up to one million pages of documents from Kavanaugh’s time in the White House Counsel’s Office and the Office of the Independent Counsel. The records that passed through the staff secretary’s office would add millions of additional pages.

Further, unlike Kagan’s records, the staff secretary records are replete with the confidential communications of dozens, if not hundreds, of individuals other than the nominee. It’s one thing to release the confidential communications of the nominee; it’s quite another to release those of other individuals merely because the documents passed through the staff secretary’s office. The staff secretary records also include sensitive national-security information that Kagan would rarely if ever have been privy to. The intensive pre-release review that both former president Bush and the current White House would have to engage in could easily take tens of thousands of hours and many months.

And to what end? Kagan had no record as a judge. Kavanaugh has served as a D.C. Circuit judge for twelve years, and the hundreds of opinions that he has authored, and the hundreds more that he has joined, provide the most probative evidence of his qualifications to be a Supreme Court justice. Schumer and other Democrats obviously agree that the records from his time as staff secretary are not necessary to assess his fitness for the Supreme Court, as they have already committed to oppose his nomination.

I’ll highlight again that the Senate did not demand the most probative evidence of Kagan’s legal thinking—her records during her tenure as the Obama administration’s Solicitor General. Nor did it demand the White House records relating to her nomination as SG.

Does anyone seriously believe that if Kagan had served as staff secretary in the Clinton White House, the Senate Democrats would have agreed to suspend the processing of her nomination for many months so that the millions of pages of documents that passed through her office could be reviewed? Absurd.

Addendum: After publishing this post, I ran across this excellent op-ed by former White House counsel C. Boyden Gray, which offers a similar analysis of what Gray labels Schumer’s “ludicrous” demand.


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