WASHINGTON ― Republicans are circumventing the normal vetting process for Supreme Court nominees with an unprecedented partisan undertaking in order to confirm Brett Kavanaugh, President Donald Trump’s high court pick, by Oct. 1, the start of the new term.
The National Archives and Records Administration, which has historically been tasked with producing documents relating to Supreme Court nominees, distanced itself from the group of George W. Bush lawyers currently working on releasing Kavanaugh documents from his time in the Bush administration. The archival staff is conducting its own review of the nominee’s record, as requested by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), but they will not be able to fully comply until late October due to the sheer number of documents involved.
The nonpartisan agency said in a Wednesday statement that the Republican review of some of Kavanaugh’s time in the Bush White House is “completely apart” from the one it is working on, adding that the parallel review is “something that has never happened before.”
“This effort by former President Bush does not represent the National Archives or the George W. Bush Presidential Library. The Senate Judiciary Committee is publicly releasing some of these documents on its website, which also do not represent the National Archives,” the statement read, noting that former presidents have the right to access and release records of their administration.
Part of the reason why there has been so much partisan wrangling over Kavanaugh’s record is the fact that there has never been a Supreme Court nominee with such an extensive paper trail. As someone who spent five years working as a top aide in the White House, he’s got far more documents than Trump’s first Supreme Court nominee Neil Gorsuch or President Barack Obama’s Supreme Court nominee Elena Kagan ― a sum that is said to total several million. It’s why Senate Majority Leader Mitch McConnell (R-Ky.) tried to nudge Trump into nominating other candidates in the first place, fearing it could pose difficulties for Kavanaugh’s confirmation.
That exact scenario is playing out currently in the Senate, where Democrats are hammering Republicans for not being willing to produce his full record and pressing forward with the confirmation hearing before the National Archives is able to conduct its own review. On Thursday, Democrats announced they are prepared to sue the National Archives if the Freedom of Information Act request they filed seeking Kavanaugh’s documents isn’t honored.
“I think they realize if the American people knew just how Justice Kavanaugh felt before he became a judge, they might not want him to be there,” Senate Minority Leader Chuck Schumer (D-N.Y.) said in a floor speech on Thursday.
Schumer told reporters later that he is going to meet with Kavanaugh next week and personally ask him to call for the release of documents related to his time in the Bush White House.
It’s not hard to see why the Senate might want to see a someone’s full record before voting on their nomination. Newly unclassified CIA documents released last week, for example, detailed the brutal treatment of a terrorism suspect in late 2002 at a secret prison in Thailand then run by Gina Haspel, who was confirmed as Trump’s CIA director in May. The graphic nature of the information may have changed the thinking of some senators had it become public months ago.
Republicans, however, say that Kavanaugh’s 300-plus written opinions on the D.C. Circuit Court of Appeals, where he has served since 2006, and his documents relating to his time in the White House Counsel’s Office are sufficient for senators to get a full picture about his judicial temperament and philosophy. Indeed, with all available evidence so far, Kavanaugh appears to be a conventional Bush-type Republican in the mold of former Justice Antonin Scalia who will likely tilt the court to the right for decades to come.
“Judge Kavanaugh may seem like the human incarnation of a vanilla ice cream cone,” Sen. Orrin Hatch (R-Utah), a member of the Judiciary Committee, said in a floor speech on Thursday, dismissing the focus on his Bush documents as a stalling tactic.
The GOP majority on the Senate Judiciary Committee has begun producing a steady stream of Kavanaugh documents they say will total nearly 1 million by the end of August, just days before the start of his confirmation hearing on Sept. 4. They are touting the 1 million figure as evidence of doing their due diligence on Kavanaugh’s record.
Those documents, however, represent just a fraction of Kavanaugh’s total time in the White House counsel’s office. Of the nearly 1 million documents, a good chunk will only be made available to members of the Judiciary Committee on a “Committee Confidential” basis, a determination solely made by the group of Bush lawyers that is producing the documents.
Moreover, neither the Senate Judiciary Committee nor the public will see over a million documents relating to Kavanaugh’s service as Bush’s staff secretary, a powerful position in which he served as gatekeeper for all information that crossed the president’s desk. Democrats are particularly interested in whether the nominee authored or edited any documents relating to the Bush administration’s controversial enhanced interrogation and warrantless wiretapping programs.
The GOP’s highly unusual strategy is working partly because they are in the majority and have privileges associated with it, and partly because their arguments have persuaded a bipartisan group of moderate senators: Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Joe Donnelly (D-Ind.), Joe Manchin (D-W.Va.) and Heidi Heitkamp (D-N.D.). None of those senators ― including the three vulnerable Democrats up for re-election this year ― has asked to see more documents pertaining to Kavanaugh’s record.
“I don’t see a need for those. The document request that Sen. Grassley has made is very comprehensive,” Collins, who remains undecided on the nomination, told HuffPost last month.
Beyond the document fight, Democrats are facing a daunting math problem on Kavanaugh’s nomination. Republicans view the conservative judge as a once-in-a-generation opportunity to tilt the balance of the court by replacing former Justice Anthony Kennedy, who sometimes voted with liberals on the court.
It’ll likely take some very damaging information to prompt one GOP senator to oppose Kavanaugh ― much less two, which Democrats will need to do to sink his nomination. The Senate is currently operating with a razor-thin margin ― 51 Republicans and 49 Democrats. While both Collins and Murkowski are facing pressure from progressive groups, they have already signaled their comfort with the nominee.
Kavanaugh’s confirmation hearing, which is scheduled to begin Sept. 4, will give Democrats a public and likely final opportunity to derail his nomination.