Bench Memos

Law & the Courts

Dems’ Latest Documents Hullabaloo

Senate Judiciary Committee Chairman Senator Chuck Grassley greets Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill in Washington, D.C., July 10, 2018. (Leah Millis/Reuters)

In a letter last Friday, the three lawyers reviewing Judge Kavanaugh’s White House counsel’s office records on behalf of former president George W. Bush advised Senate Judiciary Committee chairman Chuck Grassley that they had completed their review of those records. Their letter reports that their releases over time produced 267,834 pages of documents for public disclosure and an additional 147,250 pages of documents for the committee members’ confidential viewing (which pages Grassley has made available to all senators and all Judiciary Committee staffers). The total of more than 415,000 pages of executive-branch records more than doubles the number (170,000 pages) provided for Elena Kagan during her confirmation process (and is more than the last five nominees’ document totals combined). That’s of course on top of the best evidence of Judge Kavanaugh’s fitness to be a Supreme Court justice: his superb judicial record over his twelve years on the D.C. Circuit.

The letter also reports that the White House, after consultation with the Department of Justice, has declined, on the basis of constitutional executive privilege, to provide an additional 101,921 pages of documents. The letter states that the “most significant portion of these documents reflect deliberations and candid advice concerning the selection and nomination of judicial candidates, the confidentiality of which is critical to any President’s ability to carry out this core constitutional executive function.” The other withheld documents “likewise reflect functions within the Executive Office of the President the confidentiality of which has traditionally been considered at the core of a President’s constitutional privileges, including: advice submitted directly to President Bush; substantive communications between White House staff about communications with President Bush; and substantive, deliberative discussions relating to or about executive orders or legislation considered by the Executive Office of the President.”

With his usual extravagant excess, Senate Democratic leader Chuck Schumer immediately declared “a Friday night document massacre.” “President Trump’s decision to step in at the last moment and hide 100k pages of Judge Kavanaugh’s records from the American public,” Schumer declared, “is not only unprecedented in the history of SCOTUS noms, it has all the makings of a cover up.”

Let’s take a more sober look at the matter:

1. The process by which the White House makes a decision at the end of the process whether to withhold the records of a former president on grounds of executive privilege is exactly what President Obama’s 2009 executive order implementing the Presidential Records Act contemplates. See section 3: The White House and the Department of Justice shall review the requested records to determine “whether invocation of executive privilege is justified.” Obama’s executive order also specifies that executive privilege covers records that reflect “the deliberative processes of the executive branch.”

2. There is nothing “unprecedented in the history of SCOTUS noms” about a White House determination that certain records should not be provided to the Senate. Schumer should know this quite well, as he complained at John Roberts’s confirmation hearing in 2005 of “the refusal of the [Bush] administration to let us see any documents you [Roberts] wrote when you served as Deputy Solicitor General.” (See hearing transcript, p. 441.)

3. Nor, of course, is there any general practice of the Senate’s insisting on obtaining all executive-branch records of a Supreme Court nominee. In addition to the Roberts example, the Senate did not demand that the Obama administration provide the tens of thousands of pages from Elena Kagan’s tenure as Solicitor General. And the Obama administration would surely have invoked executive privilege in rejecting such a request. Never mind that Kagan, in stark contrast to Kavanaugh, had zero judicial experience and that her SG records would have been the materials most probative of her legal thinking.

4. Senate Democrats didn’t even disclose Elena Kagan’s records from her work as special counsel to then-committee chairman Joe Biden during the confirmation hearing for Justice Ginsburg in 1993. So their protection of their own institutional privilege stands in stark contrast to their disregard for executive privilege.

5. During the confirmation process for Justice Gorsuch, ranking committee member Dianne Feinstein, on behalf of her fellow Democrats, co-signed a letter to the Bush Library that explicitly recognized that, based on executive privilege or other grounds, some requested documents “would be withheld, even from production, entirely.” Feinstein specifically avowed her intent, at the end of the process, “to respect the invocation of privilege by a co-equal branch of our government.” To be sure, Feinstein’s stated intent was conditioned on her satisfaction with the process. My narrow point here is that, contra Schumer, neither Feinstein nor anyone else a year ago maintained that invocation of executive privilege was somehow inherently illegitimate.

6. I readily acknowledge that the volume of documents as to which executive privilege has been invoked is not trivial. In large part, that’s because Kavanaugh was very involved in judicial selection. (Kagan, by contrast, was not, and she also was in the White House counsel’s office for a much shorter period.) Further, it’s important to emphasize that the confidential communications that are being protected are in many instances not necessarily Kavanaugh’s.

For those who imagine that the cause of transparency should trump concerns about the deliberative processes, I will simply quote from the Supreme Court’s unanimous opinion in United States v. Nixon (1974), in which the Court, in the course of rejecting President Nixon’s claim of an absolute privilege for deliberative materials, endorsed “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” As the Court put it:

[T]he importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.

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