Feinstein Speaks On Need for Kavanaugh Documents

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today delivered opening remarks on the Supreme Court nomination:

“Judge Kavanaugh’s nomination hearing has been scheduled for September 4, and that’s 19 days away. I want to say just a few words about why the documents from his time in the White House should be publicly available in time for that hearing.

The longstanding practice of this committee and the Senate is to ensure as much transparency as possible, and to ensure that the Senate and the American people have access to a nominee’s full record.

You mentioned Elena Kagan. Let me use her as an example—99 percent of her White House record was provided to the committee and to the public prior to her hearing. Those documents were reviewed and produced to the committee by the National Archives and followed the requirements of the Presidential Records Act.

That practice appears not to be followed here. Instead, under an agreement with Bill Burck—a lawyer representing former President Bush, as you pointed out—the committee has received roughly 174,000 pages from Judge Kavanaugh’s tenure in the White House Counsel’s office as of last evening. Apparently at 11:20 another 60,000 pages arrived last evening. Now this is a small fraction, 19 percent of the chairman’s request for Judge Kavanaugh’s White House counsel documents. It’s an even smaller fraction, about 2 percent, of his total White House record.

Notably, what we now have is about the same number of pages for Brett Kavanaugh as we had for Elena Kagan—that’s 170,000—that’s going to be changed as you point out, but right now that number represents 99 percent of her record in the White House but represents only 2 percent of Kavanaugh’s White House record.

My staff has been poring over these records, nearly completing its review. Some of the documents are useful in assessing Judge Kavanaugh’s fitness for a lifetime appointment to the Supreme Court. But it further confirms the need to obtain the full record to adequately assess the nominee and to have these documents publicly available for the hearing.

I regret the decision to designate the vast majority of the relevant documents as “committee confidential.” The irony is that there is no Senate or committee rule that defines what this means. But, as of now, you have said that only committee members and staff currently have access to these documents. My question for you, Mr. Chairman, is can we use these documents to question Mr. Kavanaugh in the hearing?

To make a confirmation decision on a nominee based on secret documents that are not available to the public or the full Senate is extremely troubling. I’ve participated in 10 Supreme Court confirmations. I’d like to take this opportunity to ask the chairman to ensure that the records are released to the public before the hearing in the same manner as has been done for previous Supreme Court nominations.

It may seem trivial to debate how many pages we can or can’t review, or what is public or not public, but withholding even a small number of documents from the Senate or public could prevent key facts from being known.

This is particularly true because so much is at stake with this nomination. If confirmed, Brett Kavanaugh would be the deciding vote on cases involving individuals’ rights to privacy, liberty and autonomy in the most personal aspects of their lives. Those fundamental rights guarantee that parents—and not the state—can direct the upbringing and education of their children, that women can make their own reproductive health care choices, and that all can marry whom they love and carry out medical decision making without the state.

This nominee will also be the deciding vote in cases about whether federal agencies have the authority to curb climate change, protect consumers, safeguard workers’ rights. And let’s not forget that Judge Kavanaugh would be the deciding vote in cases about voting rights and affirmative action.

These are incredibly important issues for all Americans. They define who we are as a nation and the extent of the freedoms that we all cherish under our Constitution and laws.

We have a constitutional duty to provide advice and consent on this nominee. That requires a full vetting of his record, and transparency and accountability to the American people. You’re a fair man, Mr. Chairman, I know we’ve exchanged letters and they show some disagreement, but I am hopeful that you can work to find a way that key documents can be made available to the public before these hearings.

We need to live up to the promise to provide an open, transparent, and fair process. The American people deserve no less.”