Brett Kavanaugh's Confirmation Hearings Have Been Shrouded In Secrecy

Senators saw only a small fraction of the records relating to Trump’s Supreme Court nominee. The public saw even fewer.

From the outset of Brett Kavanaugh’s Supreme Court confirmation hearings, Democrats have hammered home this message: The Republicans on the Senate Judiciary Committee are making it impossible for committee members to probe the views of President Donald Trump’s nominee on the issues he will ultimately rule on by shrouding the nominee in secrecy.

Kavanaugh has held multiple high-profile roles in both the judiciary and the political world, but Republicans have severely restricted the release of records documenting his discussions about major legal issues while holding those positions. Republicans requested only a sliver of Kavanaugh’s record and then labeled 40 percent of what they did receive confidential.

Rushing to judgment on the nominee amid this lack of transparency is wrong, Democrats argue. Kavanaugh’s confirmation hearings could wait until the records are released and lawmakers have had time to examine them.

Sen. Richard Blumenthal (D-Conn.) set the tone on Tuesday by calling the confirmation hearings “a charade and a mockery of our norms.” Sen. Kamala Harris (D-Calif.) added that the Judiciary Committee “cannot possibly proceed” without all of the documents. And every other Democrat on the panel has agreed since that the committee should delay its proceedings because of the lack of disclosure. But the committee did not.

Supreme Court nominee Brett Kavanaugh laughs during his Senate Judiciary Committee hearing on Sept. 6.
Supreme Court nominee Brett Kavanaugh laughs during his Senate Judiciary Committee hearing on Sept. 6.
Bloomberg via Getty Images

That’s because Republicans, who hold the majority of seats on the Judiciary Committee, are desperate to seat Kavanaugh before the October start of the Supreme Court’s next term and the November midterm elections. By speeding up the process and not taking the time to obtain as many documents as possible, they can make sure they maintain the five-vote conservative majority on the court.

The National Archives estimated there are between six and seven million documents connected to Kavanaugh from the time he served on Independent Counsel Ken Starr’s team investigating President Bill Clinton through his nomination to the U.S. Court of Appeals for the D.C. Circuit. Sen. Chuck Grassley (R-Iowa), chairman of the Judiciary Committee, requested just 937,000 of those documents. Grassley did not ask for documents from Kavanaugh’s time as staff secretary to President George W. Bush. Democrats requested those documents, but the National Archives stated that their request was not covered by the Presidential Records Act and, therefore, the documents would not be turned over. In total, only about 4 percent of the documents connected to Kavanaugh have been made public.

The disclosure process has raised additional transparency concerns. It is overseen by a partisan Republican and friend of Kavanaugh’s. William Burck, the manager of a leading D.C. white-collar law firm, was chosen by former President Bush to sort through and hand over documents to the committee. Burck approved only 457,000 documents ― less than half of the total requested ― to be sent to the committee.

And then, of those 457,000 documents, Grassley deemed 189,000 to be “committee confidential,” a designation that means committee members can see them but can’t discuss or disclose them publicly.

And these are only the Kavanaugh documents that were released to the Senate Judiciary Committee.
And these are only the Kavanaugh documents that were released to the Senate Judiciary Committee.

Those committee-confidential documents have been the subject of most of the fireworks in this week’s confirmation hearings. “There is no process for ‘committee confidential,’” Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the committee, lamented on Thursday. Democrats were not consulted about which documents would be deemed confidential and they objected to the application of that designation to many of them, she added.

On Wednesday, one Democratic senator after another demanded the release of committee-confidential documents that were central to their questioning. And some of the revelations that followed showed exactly why the documents might be of interest to the American people.

Formerly confidential documents made public on Thursday showed that Kavanaugh had not told the truth in some of his past testimony to Congress. One email showed that he had contacted then-Bush lawyer John Yoo in 2001 to ask about the administration’s nascent warrantless surveillance program, contradicting Kavanaugh’s testimony in 2006. Another revealed that Kavanaugh did work on the 2003 judicial nomination of William Pryor Jr., even though he denied in 2004 that he’d played any part in that controversial nomination.

Kavanaugh stated before the committee that Roe v. Wade was settled law, but in a 2003 email revealed on Thursday, he wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.” This represented an admission that settled law isn’t actually settled, at least in the case of abortion rights.

Other emails showed that Kavanaugh thought the Bush administration should consider enacting a temporary racial-profiling policy in the wake of the Sept. 11 attacks, until a race-neutral policy could be formulated, and that he opposed the creation of a small business program for Native Hawaiians and Alaskan Natives if it favored them solely based on their race.

These emails all saw the light of day, but only on the final day of Kavanaugh’s testimony. The fight over whether they could be disclosed took up a huge portion of the rushed three days of hearings. Some of these documents had been requested by Democrats in August. It is not clear why they could not be released publicly prior to the very public pleading by Democratic senators.

“We don’t know what is being hidden,” Sen. Patrick Leahy (D-Vt.) said on Tuesday.

Language has been added to clarify the status of records from Kavanaugh’s time as staff secretary to President Bush.

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