SCOTUS | Record Amount of Information for Senate on Judge Kavanaugh's Nomination

 

Two weeks from today, Judge Brett Kavanaugh will appear before the Senate Judiciary Committee for the first day of his confirmation hearing. I’m excited to finally hear from him. He’s one of the most qualified nominees ever picked for the Supreme Court, and he’s contributed a great deal to his community and the legal profession.

 

The other side has apparently found very little in his record that’s objectionable. The only thing I keep hearing about is their unprecedented demand for millions and millions of pages of irrelevant documents—on top of the hundreds of thousands of pages we’ve already received. Indeed, the Senate Democratic leaders have demanded the search of every email and every scrap of paper from every one of the hundreds of White House aides who came and went for the entire eight years of the George W. Bush presidency.

 

And the Senate Democratic leaders even refused to utilize search terms or other ways to limit the universe of the millions and millions of pages of records that would require the consecutive review by the Archives and both the former and incumbent presidents’ teams of lawyers, even before the Senate Judiciary Committee could begin its own search. These reviews would have taken many, many months—and maybe even years.

 

We know the true reason for their unprecedented document demand: to delay Judge Kavanaugh’s confirmation until after the midterm elections, when the Senate Democrats hope to win back the Senate and block Judge Kavanaugh’s nomination forever. Democratic leaders announced their opposition to Judge Kavanaugh immediately after he was nominated. Some senators announced opposition to any of the 25 potential nominees before the President even announced his pick. The Minority Leader said he would oppose Judge Kavanaugh with everything he’s got. This desire to obstruct the process explains their partisan push to bury the Senate Judiciary Committee in a mountain of irrelevant paperwork.

 

They also want to divert attention from Judge Kavanaugh’s impressive record. Democratic leaders know that Judge Kavanaugh is the exact type of justice the American people want. Judge Kavanaugh has served for twelve years on the D.C. Circuit Court of Appeals. During that time, he authored more than 300 opinions and joined hundreds more. The Supreme Court has, in thirteen separate cases, adopted a legal position advanced by Judge Kavanaugh in his opinions—a very impressive record.

 

The Majority staff on the Senate Judiciary Committee has already read more than 10,000 pages of judicial writings that Judge Kavanaugh wrote or joined, more than 17,000 pages of materials that Judge Kavanaugh provided in response to the most robust questionnaire ever submitted to a Supreme Court nominee, and more than 260,000 pages of emails and other records from Judge Kavanaugh’s Executive Branch legal service.

 

This morning, the committee received close to 170,000 pages of additional records from Judge Kavanaugh’s Executive Branch legal service. We now have a total of more than 430,000 pages from Judge Kavanaugh’s time in the Executive Branch—by far the most ever received for a Supreme Court nominee. The Majority staff will finish reading every one of these pages before Judge Kavanaugh’s hearing.

 

I’m following the precedent that was established during Justice Kagan’s confirmation, when the Senate asked for many but not all of her Executive Branch documents. We received documents from two out of the three Executive Branch positions Justice Kagan held. We received documents from Justice Kagan’s time in the White House Counsel’s Office and Domestic Policy Council. Senators from both parties agreed not to request internal documents from her time in the Office of the Solicitor General because of their sensitivity.

 

Likewise, we’re asking for documents from two of Judge Kavanaugh’s positions in the Executive Branch but not a third. We’ve asked for documents from Judge Kavanaugh’s time in the White House Counsel’s Office and Office of the Independent Counsel. But we didn’t ask for documents from his time as staff secretary because, even more so than Justice Kagan’s Solicitor General documents, they’re incredibly sensitive to the Executive Branch.

 

I’ll add that both positions for which we requested Judge Kavanaugh’s documents were legal positions. Those documents could shed some light on his legal thinking. The staff secretary is a non-legal position and wouldn’t reveal anything about Judge Kavanaugh’s legal thinking.

 

For Justice Kagan, on the other hand, we didn’t receive documents from her time in one of the two legal positions she held. We didn’t receive her Solicitor General documents despite a heightened need for them to assess Justice Kagan’s legal thinking. After all, she had no experience as a judge. In contrast to Judge Kavanaugh’s 12-year judicial track record, the 307 opinions he wrote, and the hundreds more he joined, Justice Kagan wrote or joined zero opinions. Judge Kavanaugh wrote or joined over 10,000 pages of judicial opinions—compared to Justice Kagan’s zero pages.

 

In short, we have received many more pages of more relevant documents for Judge Kavanaugh than we did for Justice Kagan. This more thorough and transparent production is on top of the thousands of pages of Judge Kavanaugh’s publicly available materials, including his extensive and impressive judicial record. Democratic leaders nevertheless accuse me of “hiding documents” because I have agreed to hold some documents as “committee confidential.” But during Justice Kagan’s and Justice Gorsuch’s nominations, we agreed to receive as “committee confidential” documents that contained material restricted by the Presidential Records Act. That’s exactly what I’ve agreed to do now.

 

As I’ve explained, I agreed to receive documents on a “committee confidential” basis as an initial matter to allow the committee to accelerate our review of Judge Kavanaugh’s record—while at the same time making sure that restricted material like social security numbers, banking information and confidential advice given to the President are not exposed to the public.

 

Then-Chairman Leahy also agreed to receive documents on a “committee confidential” basis in 2010 “to permit the Committee prompt access to them.” I did the same thing here.

 

All of those documents don’t remain confidential forever. They are reviewed a second time and, if they don’t contain any material restricted by law from public access, we quickly release the documents to the public. We thus end up in exactly the same place as we did with Justice Kagan and Justice Gorsuch: Material restricted by the statute is held “committee confidential”, while non-restricted material is released to the public.

 

I’d like to add that all documents we have received—including “committee confidential”—are at this very moment available to every member of the Senate. My staff is happy to make these documents available to any senator interested in reviewing them.

 

Now, my friends on the other side complain that Bill Burck, rather than the National Archives, is deciding what is considered restricted. But that’s not true at all. The Archives has been reviewing Judge Kavanaugh’s emails as I requested. And they have informed President Bush and President Trump that, in the opinion of the professional archival staff, nearly two-thirds of the emails they’ve reviewed thus far contain restricted material and should not be released to the public. That means that, under the same standards applied for Justice Kagan and Justice Gorsuch, the committee will have to hold two-thirds of the documents reviewed by the Archives as “committee confidential” when we receive them.

 

Following historical practice, official records are generally produced to the Senate for our review; personal records generally are not. And the Obama-appointed Archivist of the United States and his team of career archivists are making the ultimate decision on whether Judge Kavanaugh’s Executive Branch records are official or personal. It’s simply absurd to suggest that anyone is hiding anything.

 

I hope that my colleagues on the other side of the aisle put aside politics and reconsider their reckless demands for the immediate release—for the whole world to see—of documents that contain full names, dates of birth, social security numbers, bank account numbers, personal communications with family members, other sensitive matters affecting personal privacy – and, of course, some of the most sensitive issues related to the President's core constitutional duties.

 

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