Old Process, New Nominee: Committee Confidentiality and Supreme Court Nominations

In 2010, then-Chairman of the Senate Judiciary Committee Patrick Leahy accepted records for Justice Kagan’s nomination on the condition that they be held “committee confidential.” As he reasoned in a letter to then-Ranking Member Jeff Sessions:

With the small number of documents on which President Clinton asserted statutory restriction against public release under the Presidential Records Act, the Archives offered to provide them to the Committee on the condition that they be designated and treated as “Committee Confidential.” After our staffs briefly discussed the matter, I accepted the document on that basis in order to permit the Committee prompt access to them. Let me know if you have changed your mind and now think we should return them to the Archives and not accept documents on that basis. (Leahy to Sessions, 06/07/2010)

The documents were retained on those conditions.

Subsequently, Chairman Grassley agreed to accept documents on “committee confidential” conditions for the Supreme Court nominations of both Justice Gorsuch and Judge Kavanaugh. Committee Democrats recently voiced objection to continuing this practice for Judge Kavanaugh’s nomination, apparently without understanding the precedent. Chairman Grassley responded in writing to one such objection:

Insofar as I have departed from longstanding Committee practice, that departure has been in favor of transparency… (Grassley to Feinstein, 08/10/2018)

Read more on Chairman Grassley’s process allowing for historic access to these presidential records HERE.

Note: The “statutory restriction” to which Senator Leahy referred in his 2010 letter are the restrictions on public release of records covered by either the Presidential Records Act (PRA) or the Freedom of Information Act (FOIA). Documents have been reviewed for the same legal restrictions for the Kagan, Gorsuch and Kavanaugh nominations.