Senate Democrats should meet with Judge Kavanaugh

Senate Democrats should meet with Judge Kavanaugh
© Greg Nash

Senate Democrats have no excuse for refusing to meet with President TrumpDonald John TrumpTrump threatens ex-intel official's clearance, citing comments on CNN Protesters topple Confederate monument on UNC campus Man wanted for threatening to shoot Trump spotted in Maryland MORE’s Supreme Court nominee, so they have manufactured one. Democrats say they need even more documents than the White House has offered from Kavanaugh’s days in the executive branch. That is absurd.

The White House has made available far more documents from Judge Kavanaugh’s executive branch service than were ever produced for any other Supreme Court nominee, including the emails he sent during his time as associate counsel to the president, which total more than 200,000 pages.

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That is a significantly greater volume of documents than the Senate received from current Justices Gorsuch, Kagan or Roberts’s time in the executive branch.

 

Despite this vast archive of material, Senate Democrats are refusing even to meet with the president’s nominee unless the White House acquiesces to an outrageous fishing expedition: They want the White House to turn over all the documents Kavanaugh sent or received during his time as White House Staff Secretary

Yielding to the Democrats’ demands would involve an unprecedented waiver of executive privilege. Because unlike other White House personnel who serve a more peripheral role in the president’s administration of the executive branch, the staff secretary manages every paper that comes across the president’s desk — not just the ones he ultimately signs, but also draft orders, letters, memoranda, and other documents that never see the light of day. Subjecting all of these deliberative documents to public scrutiny would chill communications between future presidents and their staff, which could be disastrous for the country.

The confidentiality of these sensitive records must be maintained if the president’s closest advisers are to vet important administration proposals with the necessary candor. That is why, when President Obama nominated Elena Kagan for her seat on the Supreme Court, the White House provided no records from her time as solicitor general, when she represented the United States before the Supreme Court. 

The same was true of the documents generated by John Roberts and Samuel Alito during their service in the Office of the Solicitor General and the Office of Legal Counsel. The staff secretary’s records are no less sensitive — and likely much more sensitive. Like the solicitor general and her staff, the president’s inner circle must have confidence that they can offer their best ideas and candid opinions without fear that they will someday be aired in a former colleagues confirmation hearing.

The Democrats’ request is also ludicrous, because the documents in question would reveal nothing about Judge Kavanaugh’s legal views or judicial aptitude. The staff secretary is not a decision making official. His job was not to advocate his own views on law or policy, but to manage the stream of documents through the Oval Office, and to see that the president’s own communications are thoroughly vetted by the relevant White House personnel. 

As one former White House staffer who knew Kavanaugh during this time explained, “[t]he staff secretary is basically the traffic cop directing the paper flow in the White House.” At best, the documents in question would show Kavanaugh to be a meticulous manager of papers generated by others. 

As former White House counsel, I can attest that the staff secretary serves a critically important role in the White House, but I cannot imagine that producing the documents a former staff secretary handled would shed any light whatsoever on his qualifications to serve on the Supreme Court. Nor would producing all of the emails that Kavanaugh received during his time in the White House Counsel’s office. 

Instead, such a production would slow the confirmation process to a crawl. And, of course, that is precisely what Senate Democrats intend. These documents surely comprise hundreds of thousands or even millions of pages of sensitive material. Producing and reviewing such a vast quantity of paper is unheard of in this context, and it would represent a senseless waste of White House and Senate time that would be better spent on the substance of Kavanaugh’s judicial output and on the other pressing business of the government.

In addition to the huge document production that the White House is offering, the Senate already has access to the most relevant body of documents — Judge Kavanaugh’s own judicial opinions. When President Trump nominated Kavanaugh to fill Justice Kennedy’s seat, the president handed the American people an open book.

Anyone — senator or citizen — who wants to know how Kavanaugh operates in the judicial role can read more than 300 opinions he authored in his 12 years on the United States Court of Appeals for the D.C. Circuit. That court is sometimes known as the second highest court in the land, because it — more than any other court of appeals — vets the major regulatory actions, and polices the boundaries, of the federal government.

Judge Kavanaugh’s opinions for that court — and his numerous concurrences and dissents — reveal more clearly than any other potential source how the nominee thinks about the kinds of legal issues he would confront as a Supreme Court justice.

 But Judge Kavanaugh’s revelations about his judicial philosophy and legal analysis do not stop with his judicial opinions. He has published prolifically in law journals on subjects ranging from constitutional construction to criminal procedure kav.

If Democratic senators cannot figure out what kind of justice Judge Kavanaugh will be from hundreds of judicial opinions, hundreds of pages of legal scholarship, and hundreds of thousands of pages of emails he sent from the White House Counsel’s Office, another truckload of largely irrelevant Oval Office paperwork will not make it any easier. 

C. Boyden Gray served as counsel to the vice president (1981-89) and White House counsel (1989-93).