Bench Memos

Law & the Courts

More on Schumer’s Delusory Document Demand

“It would be grossly irresponsible for the United States Senate to confirm someone to the United States Supreme Court without reviewing their entire record.” So proclaims an online petition in support of Senator Schumer’s crazed demand for the millions of pages of documents that passed through Brett Kavanaugh’s office when he was White House staff secretary. So assert, in one fashion or another, lots of folks on Twitter.

But this is an insane position that the Senate has never come anywhere close to adopting.

A nominee’s “entire record” cannot be coherently defined to consist of the nominee’s public record together with whatever nonpublic executive-branch materials might exist for the nominee. Indeed, if you’re genuinely interested in what “could shed light on how [a nominee] would rule as a Supreme Court justice” (I’m quoting the online petition), there is no reason at all to give special emphasis to executive-branch records. Justices Ginsburg, Breyer, Alito, and Sotomayor, for example, all had long judicial records when they were nominated to the Supreme Court. What better way to get insights into their legal thinking than to require them to turn over their confidential case files and emails? So what if months of delay are involved and if the demand threatens the confidentiality of deliberations among judges and between judges and their law clerks? On the logic of the online petition, we’re supposed to think that the Senate—with Senate Democrats in charge of the process for Ginsburg, Breyer, and Sotomayor—was “grossly irresponsible” to confirm those nominees “without reviewing their entire record[s].”

Even as to executive-branch records, the Senate proceeded to confirm Justice Kagan without seeking her files from her tenure as the Obama administration’s Solicitor General. Why not? Because the Senate, then under Democratic control, was “grossly irresponsible”?

And on legislative-branch records, how is it that the Senate never sought Elena Kagan’s files from her service as special counsel to Senate Judiciary Committee chairman Joe Biden on the Ginsburg confirmation hearing? More gross irresponsibility?

And why look only to governmental records? Why not, say, have required John Roberts to ask his former law firm seek his former clients’ permission to waive attorney-client privilege so that we could scrutinize his legal thinking?

And since we’re concerned about the nominee’s character and about how a nominee’s personal views might affect his legal thinking, why not demand access to all of a nominee’s private papers and emails? Indeed, why not insist that any person who desires to be eligible for a Supreme Court nomination consent years in advance to 24/7 surveillance of every word and action?

As I’ve explained, the Senate has always been sensitive to the trade-off between how burdensome and time-consuming a demand would be and how much incremental insight documents could reasonably be expected to provide. The Kavanaugh confirmation process is no occasion to abandon sanity.


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