Bench Memos

Law & the Courts

Democrats Demand Documents to Distract and Delay

Pro Publica received a lot of well-earned criticism for its nutty crowdsourced fishing expedition asking Nationals fans to search for photos of Kavanaugh at baseball games in the hopes they’ll uncover something nefarious.

But Senate Democrats are pushing ahead with their own desperate strategy to bury the confirmation process under a mountain of irrelevant document requests, with about the same likelihood of finding anything significant.

Here’s where we stand:

Judge Kavanaugh has served for twelve years on the D.C. Circuit, widely regarded as the most important federal appellate court in the country.  In that time he has authored 307 opinions, all available in the public domain, and signed onto hundreds more.  His opinions have been so influential and persuasive that on more than a dozen occasions the Supreme Court has adopted his reasoning – often vindicating his dissenting positions.  His record has been supplemented by the most extensive bipartisan questionnaire the Senate Judiciary Committee has ever received, his answers running more than 100 pages themselves and with more than 17,000 pages of appendices making an exhaustive review of his previous legal work, publications, and public speaking.

A robust judicial record is naturally the major point of reference for anyone interested in a nominee’s judicial philosophy.  As both Senator Schumer and Senator Leahy have noted, a judge’s public record from his or her time on the bench is the best indication of how they will serve on the Supreme Court.  But, caught between a nominee that shows every sign of cruising toward confirmation and an increasingly desperate and radicalized base, Democrats are now hoping that creating drama surrounding the release of documents from Kavanaugh’s time working in the Bush White House will create delay and distract from his unparalleled qualifications and stellar judicial record.

At the outset it’s obvious that none of this is in good faith, because those most vocally demanding documents have already announced their opposition to Kavanaugh. Moments after he was nominated, Democrats were trampling each other in an effort to be the first on the record opposing Judge Brett Kavanaugh.  They had apparently already done their homework on a nominee who, as part of the most transparent Supreme Court nomination process in history, had been publicly announced as a shortlister months before, giving ample time for liberals to ramp up their opposition research.

Now Democrats are claiming they need to see literally millions of pages of documents from Kavanaugh’s years working in the Bush White House.  Their request is so overbroad, it even includes documents Kavanaugh himself never touched but in which his name was mentioned.  You can’t make this stuff up.

They’ve tried to make a comparison to the Kagan confirmation process to bolster their demands.  But the contrast all goes in Kavanaugh’s favor.

  • Dermocrats’ opening gambit was to refuse to meet with Judge Kavanaugh until Republicans capitulated on their kitchen-sink document requests.  But Senator McConnell met with Elena Kagan on her very first day on Capitol Hill, just two days after her nomination.  No strings attached.
  • Senator Grassley has requested release of all Kavanaugh’s records from his time at the White House Counsel’s office, just as had been done during Justice Kagan’s confirmation.
  • Both nominees had their documents reviewed by Presidential Records Act designees before release.  The Act allows a former president to review such documents before release to ensure that any privileged material is redacted.  During Justice Kagan’s confirmation process, that review was entrusted to Bruce Lindsey, Clinton’s representative who was his former campaign manager and member of his White House Counsel’s office.  Similarly, the Bush Presidential Library’s release of documents is being overseen by Bill Burck, a former member of Bush’s White House Counsel’s office.
  • While Elena Kagan’s documents only amounted to 170,000 pages, the Kavanaugh document production is already at 250,000 and growing, more than any Supreme Court nominee in history.  Although the volume of documents is so substantial that the National Archives has indicated it would have trouble producing them in a timely fashion, the Bush Presidential Library has agreed, using its own private funds, to make available documents that haven’t yet been cleared for public release on a confidential basis to members of the Judiciary Committee.  The Archives is continuing its own production, but this process will expedite availability of documents, and allow Democrats to request public release of specific documents if they were to actually find the mythical smoking gun they suggest is hidden somewhere in the Bush papers.
  • Senate Republicans were respectful of the sensitive nature of some administration work done by the nominee; Democrats have requested even irrelevant and highly sensitive records.  Elena Kagan’s time as Solicitor General for President Obama was her most relevant experience qualifying her for a position on the Supreme Court, given her lack of any judicial record.  Nonetheless, Senate Republicans did not push for release of those documents out of respect for that office.  Judge Kavanaugh’s time as Staff Secretary to President Bush is less appropriate to review: it isn’t even a position requiring a law degree, but focuses on coordinating and synthesizing the work of high-level administration officials.  And it’s even less necessary to examine such work for a nominee like Kavanaugh for whom we have an extensive and directly relevant judicial record.  But not only did Democrats ask for Kavanaugh’s Staff Secretary work product, they went whole-hog and demanded release of every email that even mentioned Kavanaugh.

The Judiciary Committee has already reviewed thousands of pages of judicial opinions and hundreds of thousands of pages of documents, and has requested release of more documents than the last five Supreme Court nominees combined.  Committee members have had more time from nomination to hearing than the last three nominees, not to mention the 8-month head start their liberal allies had to start digging up dirt on Kavanaugh after he was added to the President’s Supreme Court list.

Senator Schumer knows the records he’s demanding are as likely to hold some silver bullet to sink the Kavanaugh nomination as Pro Publica’s “Where’s Waldo” gambit is of turning up a photo of Brett Kavanaugh secretly eating too many hot dogs at a Nats game.  But he also knows that there’s nothing he can legitimately criticize about Kavanaugh’s actual record as a judge, and has to make a show of putting up a fight for his radical base.  This is just another cynical attempt to delay and distract from an excellent nominee.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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