Over the past six weeks, I’ve written these four extensive posts on Senate Democrats’ demand for the millions of pages of documents that passed through Judge Kavanaugh’s office when he was White House staff secretary (as well as this post on Senate Democrats’ objection to the expedited release of Kavanaugh’s records from his time in the White House counsel’s office). In light of the Left’s failure to muster any serious substantive case against the Kavanaugh nomination, I’m guessing that Senate Democrats will be waxing indignant on this matter at next week’s hearing, so I figured that I would distill (and repeat) some basic points:
1. No Judiciary Committee chairman has ever agreed to a minority party’s document demand that would entail significant delay in the consideration of a Supreme Court nominee.
2. Beyond the background materials that the Senate questionnaire calls for, there is no special category of documents that the committee has deemed to be always essential to its consideration of a Supreme Court nominee. In deciding how to respond to a minority party’s demand for documents, each Judiciary Committee chairman assesses how burdensome the demand is. That’s what then-Chairman Leahy did when he agreed to request Elena Kagan’s White House records. The idea that he would have insisted on those records if they involved months of delay is ludicrous.
3. There is no precedent for insisting on having the nominee’s “entire record” to review. For starters, if there were such a practice, there would be no reason to limit it to executive-branch materials. Justices Ginsburg, Breyer, Alito, and Sotomayor, for example, all had long judicial records when they were nominated to the Supreme Court. What better way to get insights into their legal thinking than to require them to turn over their confidential case files and emails?
Even as to executive-branch records, the Senate proceeded to confirm Justice Kagan without seeking her files from her tenure as the Obama administration’s Solicitor General—the files that would be most probative of her legal thinking. And on legislative-branch records, the Senate never sought Elena Kagan’s files from her service as special counsel to Senate Judiciary Committee chairman Joe Biden on the Ginsburg confirmation hearing.
4. Judge Kavanaugh has a twelve-year record on the D.C. Circuit. (Kagan had never been a judge.) That record provides ample insight for judging his fitness to serve on the Supreme Court, as the ABA’s unanimous “Well Qualified” rating attests. In addition, the Senate is receiving up to one million pages of documents from Kavanaugh’s tenure in the White House counsel’s office and in the Office of the Independent Counsel, making this by far the largest document production ever for a Supreme Court nominee.
5. The additional millions of pages of staff secretary records are very unlikely to yield any incremental insights into Judge Kavanaugh’s legal thinking. The intensive pre-release review that both former president Bush and the current White House would have to engage in could easily take tens of thousands of hours and many months. (See this post and point 3 of this post for elaboration on the preceding two sentences.) And for what purpose? To inform the judgment of senators like Chuck Schumer who have already determined to oppose Kavanaugh?
6. If Senate Democrats had any genuine interest in particular staff secretary records, they could have limited their request to such records. But (as I discuss in point 1 of this post), they adamantly refused to do so, as they aim to obstruct the Kavanaugh nomination by delay, not to discover that their fantasy allegations (point 2 here) are baseless.