SCOTUS | The Most Transparent Confirmation Process in History

 

Over the last several days, the Minority Leader has continued his unprecedented partisan interference with the business of the Senate Judiciary Committee. In addition to these partisan interventions being unwelcome, many of the Minority Leader’s assertions are plainly false. Others omit significant context. I’d like to correct the record.

 

Let me start by reiterating that the confirmation process for Judge Kavanaugh will be the most transparent in history. Senators already have access to the most important part of his record: his more than 300 opinions written during his twelve years on the D.C. Circuit—in addition to the hundreds more opinions he joined and the more than 6,000 pages submitted in connection with his Senate Judiciary Questionnaire. Moreover, the Senate will receive more pages of Executive Branch documents than we did for any Supreme Court nominee ever.

 

I anticipate up to one million pages of documents from Judge Kavanaugh’s time in the White House Counsel’s Office and Independent Counsel’s Office, along with records related to his 2006 confirmation to the D.C.Circuit. The production could be larger than the last five Supreme Court nominees combined. The other side is pretending like the most expansive and transparent confirmation process in history is not enough.

 

Despite this expansive and transparent confirmation process—and that senators already have Judge Kavanaugh’s entire judicial record in front of them—Democratic leaders continue to make unreasonable demands for more and more documents.

 

In fact, they demand access to every email and every other document ever written or received by every staffer who ever worked in the Bush White House to fish for documents that merely mention Brett Kavanaugh’s name.In other words, they essentially want access to every document that ever went through the Bush White House. This is beyond unreasonable—and it’s not a serious proposal.

 

During Justice Kagan’s confirmation, Chairman Leahy was adamant that documents merely mentioning Justice Kagan’s name shouldn’t be produced.This is just one example of Democratic leaders not following the Kagan Standard.The motive behind the unreasonable demands for documents is obvious: Democratic leaders want to stall Judge Kavanaugh’s confirmation any way possible. They hope to bury the Senate in mountains of irrelevant documents to delay his confirmation hearing and perhaps deny him a vote during this Congress.

 

The Ranking Member’s hometown newspaper reported this scheme over the weekend. The San Francisco Chronicle called it “a tactic that could postpone a decision until after the midterm elections.” The article explained that, “The Democrats’ strategy… is to demand to see every document that crossed Kavanaugh’s desk while he served as President George W. Bush’s staff secretary from 2003 to 2006.” In other words, the Democratic leaders are demanding these documents in order to needlessly delay the process rather than for a legitimate purpose. But their tactics aren’t going to work.

 

Let me address some of the Minority Leader’s specific points. He says that, traditionally, the Senate Judiciary Committee sends a bipartisan letter requesting documents. And he said that we should have sent out this letter two weeks ago. What the Minority Leader failed to point out is that my staff worked extensively with the Ranking Member’s staff to attempt to identify specific Staff Secretary records that interested the Democrats. But the Democratic staff wasn’t interested in a reasonable compromise, including my attempts to get them even more documents than the up to one million pages of documents than we’re already receiving.

 

After multiple rounds of negotiation, they still hadn’t budged from their position that they’re entitled to access any of the millions and millions of pages of documents that ever went through the Bush White House. These demands were unprecedented, unreasonable, and obviously intended to delay the confirmation process. I couldn’t allow this tactic to further delay the important business of the committee, so I sent a records request for the White House Counsel documents, as Chairman, because we need to keep the process moving. It’s unfortunate that the Ranking Member didn’t agree to sign it, because the letter requests documents both sides agree we should have.

 

The Minority Leader also says we should have followed the precedent established during Justice Kagan’s nomination. He is rewriting history. He conveniently forgets that both Democrats and Republicans agreed we shouldn’t request documents from Justice Kagan’s time as Solicitor General.Everyone agreed that the documents were too sensitive for disclosure and could chill the candidness of internal deliberations. This same respect for confidentiality should apply with greater force to Staff Secretary documents,which include some of the most sensitive policy advice going directly to the President.

 

Indeed, the White House Staff Secretary is essentially the inbox and outbox for the President of the United States. The Senate’s current task is to evaluate the qualifications of Judge Kavanaugh, not to re-litigate every political and policy disagreement from President George W. Bush’s eight years in office.

 

As my Democratic colleagues keep pointing out, Judge Kavanaugh has described how his time as Staff Secretary was a formative experience for him.Well, Justice Kagan said the same thing about her time as Solicitor General.But the Democrats refused to request her records.

 

On top of the undisputed relevance of Solicitor General materials,Justice Kagan lacked a judicial record. In other words, unlike the more than 300 opinions that Judge Kavanaugh authored and the hundreds more opinions that he joined in his 12 years of service on the D.C. Circuit, Justice Kagan had zero judicial opinions that she authored, zero judicial opinions that she joined, and zero years of judicial service. Her Solicitor General documents were therefore even more relevant. Democratic leaders are rewriting the Kagan  Standard to further their stalling tactics.

 

The Minority Leader also tried to draw parallels with the request for documents from Justice Sotomayor’s time as a board member of the Puerto Rican Legal Defense and Education Fund. This, however, was a narrow request closely tailored to a specific need for information. It resulted in a production of approximately 100 documents. By contrast, Democratic leaders demand access to every single one of the millions and millions of pages of emails and other records from every one of the hundreds of staffers who served in the White House with Judge Kavanaugh. As I have said repeatedly, I will not put American taxpayers on the hook for the Senate Democrats’ fishing expedition.

 

Clearly losing on the substantive argument, the Minority Leader has even resorted to personally attacking Mr. Bill Burck, President George W. Bush’s attorney. Mr. Burck has been one of President Bush’s designated representatives for the Presidential Records Act since 2009. He is a leading partner at one of America’s most respected, and most liberal, law firms. And I’m told that he’s insisted that no lawyer be selected to participate in the review on the basis of his or her party affiliation or political ideology. Moreover, Mr. Burck has taken the time to personally meet with the Ranking Member’s staff and answer all of their questions about the document-review process.

 

The Minority Leader said at a press conference today that the review by President Bush’s lawyer “wouldn’t be so bad if we also got a full set of documents from the Archives.” Well, that’s exactly what I expect to happen.President Bush has offered to give us access to copies of the documents we requested from the Archivist, so that we on the committee can quickly begin our review of Judge Kavanaugh’s record while the Archives works through our document request.The Minority Leader could have learned this by talking to me, instead of putting on a political show in front of TV cameras.

 

I must also address the Minority Leader’s unprecedented intervention into the business of the Judiciary Committee. The Minority Leader is not a member of the committee. He has no business inserting himself into committee business, including the manner in which the committee will obtain the documents needed to review Judge Kavanaugh’s record. 

 

But last week he sent a letter to President George W. Bush asking him to release all of the records from Judge Kavanaugh’s service in the White House, while at the same time criticizing the way that President Bush has chosen to review those records. This letter was an inappropriate attempt to meddle in committee business, and I am disappointed that my Democratic colleagues on the committee are tolerating it.

 

I have also learned that the Minority Leader called the Archivist on Monday and asked him to “do the right thing” with regards to documents. I was disappointed to hear that the Minority Leader was attempting to pressure a government official—one appointed by President Obama, no less—with regard to the committee’s business.

 

I also want to address one argument that my colleague on the Judiciary Committee, the senior senator from Illinois, has made. My colleague believes Judge Kavanaugh misled the committee during his 2006 confirmation hearing when he said he was not involved in developing the Bush Administration’s detention and interrogation policies. The senator pointed to a media report that described a 2002 meeting in the White House in which Judge Kavanaugh advised whether his former boss, Justice Kennedy, would accept a legal argument about American citizens’ access to counsel. These allegations have no merit. Offering advice on the potential success of a legal position suggested by others does not show involvement in developing detention and interrogation policies. Multiple sources have confirmed that Judge Kavanaugh wasn’t involved in developing detention and interrogation policies.

 

Moreover, these allegations were already referred to the Department of Justice, which concluded they didn’t even warrant opening an investigation. I will further point out that this 2002 meeting occurred while Judge Kavanaugh was in the White House Counsel’s Office, and, as I’ve explained, we’re going to have access to his White House Counsel records.

 

In short, I’m proud to preside over what will be the most transparent confirmation process in history. As they have said publicly,Democratic leaders are firmly opposed to Judge Kavanaugh’s confirmation, and they will do whatever it takes to defeat him. They would like to bury the Senate in mountains of irrelevant documents to delay the confirmation as long as possible. I won’t allow them to abuse the process.

 

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