Bench Memos

Law & the Courts

More on Democrats’ Delusory Document Demands

I’ve written these three posts on Senate Democrats’ demand for the millions of pages of documents that passed through Judge Kavanaugh’s office when he was White House staff secretary and this post on Senate Democrats’ objection to the expedited release of Kavanaugh’s records from his time in the White House counsel’s office. If anyone has seriously contested any of my points, I’ve missed it.

A few additional observations:

1. If Senate Democrats actually wanted to obtain documents bearing on specific concerns that they profess to have, they could have negotiated a targeted request for such documents.

In a Twitter exchange with me last night, Senator Feinstein’s press secretary claimed that Democrats “offered to use search terms to narrow their requests.” (Emphasis added.) But the evidence that she offered for that claim refuted it. Democrats offered only “to submit search terms to assist in prioritizing the order of production.” (Emphasis added.) Their proposal specifically asserted that “use of search terms does not relinquish the responsibility of providing other documents responsive to this request.”

There is a world of difference between “prioritizing the order of production” of documents and actually narrowing a request. Under the Democrats’ proposal, they would have continued to demand the millions of pages of documents that passed through the staff secretary office. They would also have required a search of every email and every other record of every one of the hundreds of White House aides who served during any portion of the entire eight years of President George W. Bush’s administration. (See demand for “documents referencing Mr. Kavanaugh by name, initials, or title.”)

I am reliably informed that Senate Democrats were absolutely insistent that they would not agree to any limitations on the universe of documents demanded. The obvious—indeed, the only plausible—explanation for their position is that their overriding goal is to obstruct by delay, not to acquire relevant information about the nominee.

2. A favorite fantasy of the Left is that there are hidden records that will show that Kavanaugh supported the torture of detainees and that he lied on the matter at his 2006 confirmation hearing. I’ll refer the reader to Tom Jipping’s fuller account of that confirmation hearing and add just a couple of points here.

a. The White House has distributed to reporters statements by former White House counsel Alberto Gonzales, former deputy counsel Tim Flanigan, and former deputy counsel David Leitch attesting that Kavanaugh was not “read into” the compartmentalized classified program that addressed “enhanced interrogation techniques” and therefore had no involvement on that matter. (The White House hasn’t put the statements online, but Gonzales’s is quoted in this article.) If any senator cares to contest that fact, a way would surely be found to confirm (or, in theory, deny) that the classified record of who was read into the program does not list Kavanaugh.

b. At Kavanaugh’s 2006 hearing, Senator Durbin criticized a previous judicial nominee’s role in the “use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity and forcing detainees into painful stress positions,” and he asked Kavanaugh what he knew about that nominee’s “role in crafting the administration’s detention and interrogation policies.” Kavanaugh responded, “I was not involved and am not involved in the questions about the rules governing detention of combatants.”

Kavanaugh was plainly responding to Durbin’s concerns about “abusive interrogation techniques.”

A Washington Post article a year later reported that Kavanaugh attended a White House meeting in 2002 that addressed how to win pending cases involving U.S. citizens detained as enemy combatants. Kavanaugh opined that Justice Kennedy would not look favorably on a policy of depriving U.S. citizen detainees of access to lawyers. A recent WaPo article disclosed that a fellow former Kennedy clerk pulled Kavanaugh into the meeting to support his same take on Kennedy on that issue.

In other words, the 2002 meeting had nothing to do with the “abusive interrogation techniques” that Durbin was asking about. This supposed “gotcha” moment involved an assessment by Kavanaugh of Justice Kennedy’s views regarding the government’s position in ongoing litigation—an assessment that could only have helped the argument for giving citizen detainees access to lawyers. Any claim that Kavanaugh was being deceptive in his 2006 testimony is beyond farfetched.

3. But, some ask, why not just turn over the millions of pages of staff secretary documents?

As I have explained, the staff secretary records are replete with the confidential communications of dozens, if not hundreds, of individuals other than the nominee. Some portion of those records also surely includes sensitive national-security information.

President Obama’s executive order implementing the Presidential Records Act provides that both the former president whose records are potentially being released and the current president may invoke executive privilege against the release of records that involve the “deliberative processes of the executive branch” or that might impair national security. Indeed, it would be grossly irresponsible not to conduct a thorough privilege review. I trust that the cause of national security requires no further explanation. But for those who imagine that the cause of transparency trumps 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.

Judge Kavanaugh has written over 300 opinions and has participated in hundreds of additional rulings. He has an ample judicial record to assess. In addition, the Senate has already received some 200,000 pages of records from Kavanaugh’s service in the White House counsel’s office—more than Elena Kagan’s total—with many more pages to come.

As I have explained, the staff secretary records are very unlikely to yield any incremental insights into Judge Kavanaugh’s legal thinking. 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. On any sensible application of the cost-benefit analysis that always properly shapes the Senate’s demand for documents, demanding the staff secretary documents would be insane.

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