Bench Memos

Law & the Courts

Schumer’s Delusory Document Demand

As Senate Judiciary Committee chairman Chuck Grassley detailed in an excellent Senate floor speech yesterday, he expects that his committee will “receive up to one million pages of documents from Judge Kavanaugh’s time in the White House Counsel’s Office and the Office of the Independent Counsel.” This, of course, is on top of the most probative evidence of Judge Kavanaugh’s qualifications to be a Supreme Court justice: the “307 opinions he authored in 12 years as a D.C. Circuit judge, the hundreds more opinions he joined, and the 6,168 pages of material he submitted as part of his Senate Judiciary Committee questionnaire.”

As Grassley pointed out: “This will be the largest document production in connection with a Supreme Court nomination ever. By comparison, we received only about 170,000 pages of White House records for Justice Kagan”—who of course had no judicial record.

Yet somehow Senate Democratic leader Chuck Schumer is pretending that’s not enough. He is demanding the millions of pages of documents that passed through Kavanaugh’s office during his three years as White House staff secretary. Grassley is entirely correct to reject Schumer’s request (as he directly did in this forceful letter to Schumer yesterday).

As my Ethics and Public Policy Center colleague Yuval Levin has explained, the staff secretary “is basically the traffic cop directing the paper flow in the White House.” It demands “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.” But the job “is in essence procedural and not substantive.” Thus:

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.

It’s plain that Schumer, as part of his effort to obstruct the Kavanaugh nomination, affirmatively desires such “a monumental waste of the Senate’s time.” He obviously agrees that the papers from Kavanaugh’s time as White House staff secretary are not necessary to assess Kavanaugh’s fitness for the Supreme Court, as he has already committed to oppose the nomination.

By any sensible measure, the document production—unprecedented in volume—that Grassley is arranging far exceeds what any senator could reasonably expect. Have in mind that there has never been a practice of insisting on all executive-branch records of a nominee. If any such practice existed, then the Obama administration would have been obligated to turn over all of Elena Kagan’s records during her year as the Obama administration’s Solicitor General—information that would have been much more probative of her thinking on constitutional issues (and much more controversial) than her records from the Clinton White House.

The reality is that beyond assuring that the Senate has adequate information to assess the merits of a judicial nominee—a threshold that has already easily been met—a Senate Judiciary Committee chairman should decide how to respond to a Senate minority’s demand for documents based on how burdensome the demand is, how much insight the demanded documents promise, and how much leverage the Senate minority has. For the reasons Yuval Levin has given, the ratio of burden to insight for Kavanaugh’s staff secretary records approaches infinity. And Senator Schumer’s filibuster last year of the Gorsuch nomination, which resulted in the abolition of the supermajority cloture vote for Supreme Court nominees, means that Schumer has deprived himself of any leverage to enforce his patently unreasonable demand.

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