Grassley Discusses Supreme Court Nomination at Executive Business Meeting

 

Good morning. Today, we have twelve judicial nominees who appear on a markup agenda for the first time and the nominee to serve as Director of National Drug Control Policy. At the request of the minority, we will held over these nominees. We will also vote on a U.S. Attorney nominee for the Southern District of Florida.

 

Before we turn to today’s agenda, I’d like to speak briefly on the Supreme Court nomination. I announced last week that Judge Kavanaugh’s confirmation hearing will begin on September 4. Senators will have had 57 days between the announcement of Judge Kavanaugh’s nomination and the start of the hearing. This is a longer period than senators had for Justices Sotomayor, Kagan, and Gorsuch.

 

This longer period of time is just another example of how this is the most transparent confirmation process of all time. In his twelve years on the D.C. Circuit, Judge Kavanaugh issued more than 300 opinions and joined hundreds more. As Senators Schumer and Leahy said during Justice Sotomayor’s confirmation process, a nominee’s judicial record is the best way to evaluate a nominee. Judge Kavanaugh also submitted more than 17,000 pages with his bipartisan Judiciary Committee questionnaire—the most robust questionnaire ever sent to a nominee.

 

We’ve also received nearly 250,000 pages of documents from Judge Kavanaugh’s service in the Executive Branch. This is already more than any previous Supreme Court nominee, with many more documents to come. Most are already publicly available, and we’re working to make the vast majority of them publicly available as quickly as possible. We have plenty of time to review all these materials before the hearing. In fact, the majority staff has already reviewed nearly 80 percent of them.

 

Unfortunately, some have tried to criticize what is the most transparent confirmation process in history. But they’re failing. And they’re failing because Democratic leaders have made their true goal obvious: stall the confirmation as long as possible in the hope that Democrats take over the Senate in the midterm elections.

 

They tried unsuccessfully to apply the Biden Rule—which bars confirmations during presidential election years and which they used to say didn’t even exist—to midterm election years. When that fell flat, they generated a phony controversy about documents in a desperate attempt to delay the confirmation.

 

Lest there be any doubt, we are following the precedent established during Justice Kagan’s confirmation. Like with Justice Kagan, we are requesting a very significant number of Judge Kavanaugh’s documents from his time in the Executive Branch. But both sides agreed not to ask for internal documents from Justice Kagan’s time in the Solicitor General’s Office because of their sensitivity. Likewise, we are not asking for Judge Kavanaugh’s documents from his time as staff secretary. These documents are even more sensitive, because they contain advice sent directly to the President and are at the heart of executive privilege.

 

Some have said that we need these documents because Judge Kavanaugh stated that his time as staff secretary was formative for him. Well, Justice Kagan described her time as solicitor general as indicative to how she would serve as a justice. We still didn’t ask for her SG papers, and we won’t ask for Judge Kavanaugh’s staff secretary papers.

 

Additionally, some of my colleagues have forgotten that we had a more compelling need for Justice Kagan’s documents because she had no judicial record—she had issued zero opinions and joined zero opinions at the time she was nominated. Judge Kavanaugh, by contrast, has issued over 300 opinions and joined hundreds more in twelve years on the bench. Despite having a less compelling need for them, the Senate is still going to receive hundreds of thousands of more pages of documents from Judge Kavanaugh’s time as a government lawyer than we did for Justice Kagan.

 

There have been some criticisms of the way in which the review is being handled. These criticisms are groundless. First of all, the National Archives are not being cut out of the process. President Bush is legally authorized to review his administration’s documents and decide which ones to release to the Senate and claim that others are privileged. That’s exactly what his team is doing now.

 

Additionally, some have labeled Bill Burck, the lawyer leading this review for President Bush, a “partisan lawyer.” He’s not. He’s a partner at one of the most liberal law firms in the country and has been President Bush’s Presidential Records Act representative since 2009. Mr. Burck handled the initial review of Justice Gorsuch’s documents, and there were no complaints then.

 

I also don’t recall complaints of “partisan lawyers” reviewing Justice Kagan’s and Justice Sotomayor’s documents.

 

Bruce Lindsey—who was national director of President Clinton’s 1992 campaign, senior lawyer and “fixer” in the White House, and longtime CEO of the Clinton Foundation—reviewed Justice Kagan’s documents. Leslie Kiernan, also prominent in Democratic politics, reviewed Justice Sotomayor’s documents before the Senate received them. If these individuals could review nominees’ documents before producing them to the Senate, Mr. Burck can as well.

 

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