Supreme Court fight becomes battle for Kavanaugh’s papers

Greg Nash

The Senate fight over documents related to President Trump’s nominee to the Supreme Court is boiling over.

Trump pick Brett Kavanaugh, a circuit judge since 2006 who previously worked for President George W. Bush’s administration and Kenneth Starr’s independent counsel investigation into former President Clinton, has a voluminous paper trail that lawmakers estimate tops a million pages.

Democrats want to see as many of those papers as they can, while Republicans seeking to confirm Kavanaugh before the midterm elections favor a narrower scope.


Battle lines are hardening, with senators trading accusations about whether a double standard is being applied to Kavanaugh, who if confirmed will shape the political leaning of the court for decades.

The key part of the battle is Democratic demands for documents tied to Kavanaugh’s work as a staff secretary in the Bush administration.

Republicans argue that Democrats are waging a “fishing expedition” to hunt for damaging information.

“The complaint about documents is not about assessing his record in an open-minded, fair and dispassionate way. It’s all about the desire to obstruct and delay,” Senate Majority Leader Mitch McConnell (R-Ky.) said from the Senate floor.

Sen. Chuck Grassley (R-Iowa), the chairman of the Senate Judiciary Committee, has for more than a week tried to get Sen. Dianne Feinstein (D-Calif.), the top Democrat on the panel, to sign off on a request for “an unprecedented volume of records” that would cover Kavanaugh’s time as a White House lawyer, according to a GOP Judiciary Committee aide.

White House counsel Don McGahn met with GOP senators on Tuesday, and Sen. John Cornyn (R-Texas) said that he, Grassley, Feinstein and McGahn had planned to try to seek to end the impasse in another meeting.

But those negotiations appeared to derail on Friday night when Grassley requested, on behalf of the committee, documents tied to Kavanaugh’s time as a White House counsel but not when he was staff secretary.

The move is set to ramp up tensions when senators return to Washington on Monday, with Democrats questioning if Republicans are trying to cover up damaging information.

“This deliberately selective request leaves out what may be the most important thing in Judge Kavanaugh’s record: his time as White House Staff Secretary. What are Republicans hiding in Judge Kavanaugh’s record?” asked Senate Minority Leader Charles Schumer (D-N.Y.) following Grassley’s decision. 

Kavanaugh worked as Bush’s staff secretary — a role described by a former George H.W. Bush staffer as being the president’s “inbox and outbox” — from 2003 to 2006. He’s spoken repeatedly about the impact the work had on him, including writing in a 2016 magazine article that his time in the White House “especially my three years as staff secretary for President George W. Bush were the most interesting and informative for me.”

Republicans argue that Kavanaugh was largely a “paper pusher” and that his 12 years on the bench are more relevant to his judicial philosophy. 

Democrats counter that documents that crossed Kavanaugh’s desk are crucial to understanding what he thinks about some of the Bush administration’s most controversial policies, including on torture and surveillance.

“Republicans are claiming that Kavanaugh was nothing more than a paper pusher who told President Bush what was for lunch. That’s false, not to mention ridiculous,” Feinstein said.

Schumer sent a letter to Grassley saying he was “troubled by the apparent unwillingness to allow for a full and thorough examination” of Kavanaugh’s record. Schumer argued that the Senate should follow the standard it set when it requested documents tied to Supreme Court Justice Elena Kagan’s work in the Clinton White House.

Grassley fired back that Kavanaugh, unlike Kagan, has been a federal judge so comparing the two nominees is “like comparing apples and oranges” and that he was “skeptical” that Schumer’s request was “made in good faith.”

The back-and-forth over records comes after McConnell reportedly warned the White House — while it was contemplating who to pick to replace Justice Anthony Kennedy — that Kavanaugh’s lengthy record could be used by Democrats to try to slow down or stall his confirmation.

McConnell, asked during a weekly press conference about Kavanaugh’s nomination getting pushed later into October, only told reporters that he would be confirmed before the midterm.

“Let there be no misunderstanding that there would be any kind of delaying tactic that would take us past the first Tuesday in November,” he said.

McConnell and top White House staffers have said that they want Kavanaugh in place before the Supreme Court starts its fall term in October. But delaying the nomination could have political advantages for Republicans by keeping vulnerable red-state Democrats in Washington in the final weeks before the midterm election.

Democrats argue they have Republicans playing defense by forcing them to defend Kavanaugh in response to Democratic messaging on the documents fight, as well as health care and Kavanaugh’s writings on executive authority.

Because Republicans went nuclear last year to nix the 60-vote filibuster, Democrats can’t block a Supreme Court nominee on their own. But top Democrats, including Schumer, are delaying meeting with Kavanaugh until they reach a deal on documents, including from his time as staff secretary.

Schumer further escalated the fight by leapfrogging congressional Republicans and asking Bush for help in releasing all of Kavanaugh’s White House documents, including those from his time as staff secretary.

He added that he was worried Republicans would try to use an “irregular” process for Kavanaugh by only requesting a “pre-screened” subset of documents that were approved by the Bush library legal team vetting documents.

“I believe that making Judge Kavanaugh’s complete record public is consistent with your commitment to transparency and is strongly in the public interest,” Schumer wrote in his appeal to Bush.

A GOP aide noted on Friday that there’s nothing within the Judiciary Committee rules that requires Grassley to have Democrats’ support before moving forward with the documents request.

But Feinstein fired an early warning shot at the National Archives, saying they have to respond to both GOP and Democratic requests for information on Kavanaugh.

The agency, in a letter to Feinstein, told her that a committee’s power to request documents under the Presidential Records Act rests with the panel’s chairmen, who are all Republicans. 

“Your unduly restrictive reading of the law results in one political party having complete control over what records the Senate will be able to see,” she wrote, adding that “a biased denial of document requests to one half of the Committee is unsupported by the law.”

Tags Charles Schumer Chuck Grassley Dianne Feinstein Donald Trump John Cornyn Mitch McConnell Supreme Court
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