SCOTUS | Dem Leaders' Bloated Demands an Obvious Attempt to Obstruct

 

This morning I listened to remarks by the Minority Leader. For a minute, I was worried that Senator Harry Reid was back disguised as Senator Schumer. After all, I used to hear a lot of false comments about my committee’s work from the misinformed former Minority Leader.

 

The Minority Leader first fretted that this senator, as chairman of the Judiciary committee, would be “twisted by leadership” in the course of reviewing of Judge Kavanaugh’s nomination to the Supreme Court. That’s false, but it was strange to hear a complaint about leadership intervening in committee business from a Democratic Leader who appears to be doing just that.

 

As far as his other comments on the Supreme Court confirmation process, I’d like to reiterate a few points I’ve made over the past two weeks. The Senate Judiciary Committee will have a thorough, modern and efficient process for reviewing Judge Kavanaugh’s qualifications. As I explained yesterday, senators already have access to Judge Kavanaugh’s 307 opinions he authored in 12 years as a D.C. Circuit judge, the hundreds more opinions he joined, and the 6,168 pages of material he submitted as part of his Senate Judiciary Committee Questionnaire. These materials are the most relevant to assessing Judge Kavanaugh’s legal thinking.

 

We expect to receive up to one million pages of documents from Judge Kavanaugh’s time in the White House Counsel’s Office and the Office of the Independent Counsel. This will be the largest document production in connection with a Supreme Court nomination ever. By comparison, we received only about 170,000 pages of White House records for Justice Kagan. But Democratic leaders want gratuitous and unnecessary paper from Judge Kavanaugh’s time as White House Staff Secretary. This is an unreasonable request and they know it.

 

Democratic leaders are already committed to opposing Judge Kavanaugh. Minority Leader Schumer himself said he’d fight Judge Kavanaugh “with everything he’s got.” Yesterday, one colleague said that supporting Judge Kavanaugh is “complicit” in “evil.” That’s quite an offensive statement. It doesn’t sound like they’re interested in assessing Judge Kavanaugh’s qualifications with an open mind.

 

Their bloated demands are an obvious attempt to obstruct the confirmation process. And it gets worse: The Democratic leaders are even demanding to search each and every email from other White House staffers that even mentions Judge Kavanaugh while he served in the White House. That’s beyond unreasonable. And such a request would not help us understand this nominee’s legal thinking.

 

The Obama Administration, with Senate Democrats’ strong backing, refused to produce such records for Justice Kagan’s confirmation. And this stunning demand is clear evidence that the Democratic leaders aren’t interested in anything but obstruction. Democratic leaders insist on all these extra documents because the Senate received Justice Kagan’s relevant White House records in 2010.

 

But there is a significant difference between this nomination and Justice Kagan’s. Justice Kagan was not a lower court judge and had no judicial track record. There was a higher need for additional information that might shed light on her legal thinking. Judge Kavanaugh, by contrast, has authored more than 300 opinions and joined hundreds more.

 

The Staff Secretary is undoubtedly an important and demanding position, as Judge Kavanaugh himself and others have said. But Staff Secretary documents are not very useful in showing Judge Kavanaugh’s legal thinking. His primary job was not to provide his own advice. Instead, he was primarily responsible for making sure that documents prepared by other Executive Branch offices were presented to the President. In addition to being the least relevant to assessing Judge Kavanaugh’s legal thinking, the Staff Secretary documents contain among the most sensitive White House documents. They contain information and advice sent directly to the President from a range of policy advisors.

 

Democratic leaders say they want to follow the so-called “Kagan Standard,” but seem to forget how we approached that nomination. Republicans and Democrats alike agreed to forgo a request for her Solicitor General documents because of their sensitivity. Senators Leahy and Sessions came to that agreement even though Justice Kagan had no judicial record to review. And they agreed to these terms despite Justice Kagan’s own statement that her tenure in the Solicitor General’s office would provide insight into the kind of justice she would be.

 

Obviously, with his long record on the D.C Circuit, Judge Kavanaugh doesn’t have this problem. The need for confidentiality is substantially higher for documents passing through the Staff Secretary’s office than the Solicitor General’s office. Under the precedent set by Justice Kagan’s nomination, we shouldn’t expect access to Staff Secretary records.

 

We already have access to a voluminous judicial record and will have access to the largest document production for a Supreme Court nominee ever. The Democrats’ demands for even more documents are unreasonable and clearly intended to obstruct this confirmation process. 

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