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Why Kavanaugh’s Paperwork Counts — and It’s Probably Not for the Reason You Think

One of the remaining vestiges of an orderly confirmation process is worth preserving

September 4, 2018

It’s no surprise Democrats used the opening of the Supreme Court confirmation hearings of Judge Brett Kavanaugh to complain about documents. While such discussions may not send people pouring into the streets in protest, they’re worth taking at face value for an honorable reason: Appointing someone to a lifetime judicial position where they can wield virtually unreviewable power is serious business. It’s the all-consuming, drop-everything sort of business that requires doing all the homework and knowing all the facts. In other words, paperwork matters.

The Democrats’ argument has been dismissed by Republicans on the Judiciary Committee as ridiculous, a bogus ploy to derail the hearing rather than a genuine or principled argument. But the emotion Democrats displayed on the first day of the hearings was no piece of Kabuki theater. 

Sen. Richard Blumenthal’s (D-Conn.) hands were shaking as he pleaded and argued with Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) to pause the hearing. Blumenthal, a former U.S. attorney and state attorney general, has been in more courtrooms and high-stakes judicial hearings than most on the committee. He was not engaging in rote argumentation. Sen. Amy Klobuchar’s voice (D-Minn.) quivered as she spoke about the issue. And Sen. Kamala Harris (D-Calif.) practically shook with rage during the discussion. 

This fight about documents represents something real and consequential. The reason for the emotion is genuine, not just for Kavanaugh himself but for the Senate’s future.

What’s clear is that the White House and Grassley sure have been playing games with Kavanaugh’s paperwork. 

First came word from the National Archives that it could not fulfill Grassley’s request for documents from Kavanaugh’s time in the White House counsel’s office during the George W. Bush administration and from his 2003 nomination to the U.S. Court of Appeals for the District of Columbia until the end of October. 

No matter. Grassley insisted the hearings would go forward in September anyway.

Then, on the last day of August, three days before the confirmation hearings began, the White House asserted executive privilege and blocked the release of more than 100,000 pages of documents. It was an unprecedented move. By contrast, during Elena Kagan’s confirmation a little more than eight years ago, the Obama administration released all the material she produced while working as Associate White House Counsel and as U.S. solicitor general. 

Senate Minority Leader Charles Schumer (D-NY) dubbed the Trump White House move the “Friday night document massacre.” Maybe the White House is hiding something. Maybe there is a smoking gun among the documents. Maybe not. But such a last-minute maneuver hardly inspires confidence.

Finally, about 14 hours before the hearings started, a lawyer for former President George W. Bush released 42,000 pages of documents from Kavanaugh’s White House service. 

Again, no problem. About three and a half hours later, the Judiciary Committee tweeted, “The Majority staff has now completed its review of each and every one of these pages. Chairman [Grassley] and his team are prepped and ready for Judge Kavanaugh’s hearing to begin tomorrow.” [ital added] That set a land speed record for document review. Color me skeptical that it was really a thorough evaluation of the record.

How we arrived at this point is worth examining. 

Kavanaugh has had a long, paper-intense career. Earlier this summer, when President Trump was considering who to nominate to fill Justice Anthony Kennedy’s vacant seat, Senate Majority Leader Mitch McConnell (R-Ky.) tried to wave off the president from Kavanaugh. McConnell warned “about the volume of the documents that Judge Kavanaugh has created, according to The New York Times. That would be the millions of pages Kavanaugh generated during three years in the Bush White House, more than three years working on the wide-ranging investigation of President Clinton by Independent Counsel Kenneth Starr, and 12 years as a federal appellate judge. As of late August, only 6 percent of the documents relating to Kavanaugh’s White House tenure had been turned over to the Senate Judiciary Committee.

The confirmation process for Supreme Court Justices, indeed all judges, has taken a battering in the last few years. Both parties have committed their share of misdeeds. In 2013, the then-Democratic Senate majority eliminated the filibuster for non-Supreme Court judicial (and other) nominees. Republicans fumed. “This is a mistake — a big one for the long run. Maybe not for the short run. Short-term gains, but I think it changes the Senate tremendously in a bad way,” Senator Richard Shelby (R-Ala.) warned at the time.

In 2016, when Republicans were in charge of the Senate, they took brutal revenge by blocking consideration of Judge Merrick Garland’s Supreme Court nomination. The move set off a cascade of reactions that may have broken Senate comity and consensus about confirmation for a generation. When Neil Gorsuch was nominated for the seat, Democrats filibustered, and the Republican majority responded by eliminating its use for the highest court.

Is there anything left of the old Senate — the one that had a shared, bipartisan understanding about the solemn obligations that accompany confirming a Supreme Court justice? Until Kavanaugh’s nomination, there was a commitment to a thorough review of the nominee’s record. 

The Kavanaugh nomination will likely rise or fall on larger considerations, no matter what the documents reveal. So, the Democrats’ passion for the documents is easy to view as either a diversion, a desperate last gasp, or an elevation of form over substance. (Of course, there is the possibility of uncovering a truly earth-shattering document.)

However, what the Democrats may be really doing is an effort to retain the last vestige of a rigorous, orderly, and meaningful confirmation process for a Supreme Court justice. It may not fire up the base, try as they might. But we should still mourn the failure to get all the paperwork. It was — and is — genuinely important.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Image: Getty)