“No matter how legitimate their request might be,” Amber Phillips notes in the last line of her analysis. We’ll get to the legitimacy later, but Phillips concludes correctly Senate Democrats’ chances of slowing down Kavanaugh’s nomination lies somewhere between 48 and 49. Thanks to the “hyperpoliticized” nature of the nomination, Phillips concedes that the effort to demand an avalanche of documents from the Bush administration might look a wee bit obstructionist:
Everything about this upcoming Supreme Court nomination is hyper politicized. It’s happening in an election year, support for Brett M. Kavanaugh is falling largely along party lines and it could firm up the court’s 5-4 conservative majority in a way that has liberals worried they’ll lose future fights over health care and abortion.
Viewed that way, Senate Democrats’ long-shot effort to extract documents from all of Kavanaugh’s time as a top aide for George W. Bush could be seen as a politically driven effort to slow down his confirmation or a frantic reach for something — anything — that could throw a wrench in it.
Viewed that way, sure … and every other way as well. Most of the documents Schumer & Co are demanding have nothing to do with Kavanaugh, his judicial temperament, or even his own political leanings. Kavanaugh served for a few years as staff secretary, an important gatekeeper role in any White House. It’s akin to the chief of staff position (although ranking below it), but for paperwork rather than people. Kavanaugh would have seen everything flowing out of the Oval Office and would have had considerable control over what flowed into it.
What would that have to do with Kavanaugh’s fitness for the bench? Nothing at all, especially since Kavanaugh has a twelve-year record on the appellate bench with over 300 opinions on the record which reflect his own actions and judgments. The demand for these documents is entirely illegitimate, argues former Reagan and Bush 41 counsel C. Boyden Gray in The Hill, an intrusion on executive privilege that offers nothing substantial on Kavanaugh anyway:
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.
Oddly, Phillips makes no mention of the Kagan precedent on privileged documents. At the time of her nomination, the Senate only had Kagan’s experience in the Obama and Clinton White Houses to examine as Kagan had never served as a judge at all before her nomination to the Supreme Court. Chuck Grassley made the same point in a letter to Chuck Schumer explaining why their demands for these documents would not succeed:
As your letter describes, the Staff Secretary is an extremely important position, controlling the flow of paper in and out of the Oval Office. The papers that pass through the office run the gamut from daily news clippings to memos addressing the day’s most pressing national security issues. The Staff Secretary’s primary charge is not to provide his own substantive work product. Rather, it is to make sure that the President sees memos and policy papers produced elsewhere in the Executive Branch. As you can imagine, many of the documents that pass through the Staff Secretary’s office contain some of the most sensitive information and advice going directly to, and directives coming from, the President. At the end of the day, I am not aware of any precedent whereby the Senate asked for and received essentially all Staff Secretary documents in connection with a nomination. …
It is true that I asked to see Justice Kagan’s relevant, law-related White House records when she was nominated in 2010. And, for a very good reason, that request does not apply here. Justice Kagan had never served as a judge before. Her White House records from the White House Counsel’s Office and from her legal-policy role in the Domestic Policy Council were some of the few sources that could provide senators with some insight into her legal thinking. By contrast, Judge Kavanaugh’s extensive writing on the D.C. Circuit affords the Senate a clear picture of how he approaches legal issues as a federal judge. Justice Kagan simply did not have a comparable judicial record-any judicial record, in fact.
In other words, it’s both illegitimate and unprecedented. And it’s going to fail, too, because no Republican is buying the argument:
The three Senate Republicans who could thwart Kavanaugh’s nomination either said they’ll support him or said they think the documents their party’s leaders are requesting are sufficient. “It seems eminently reasonable,” Sen. Susan Collins (R-Maine) said Tuesday. “It does not make sense for documents that Judge Kavanaugh was only involved in essentially organizing for the president’s review and did not play a role in creating would be subject to this document request.”
With that, Democrats likely lost their only bit of leverage in this document fight.
It’s worth pointing out too that the Senate Democrats making this demand had already declared their intention to vote against Kavanaugh anyway. In fact, Chuck Schumer declared his opposition to confirmation before Donald Trump picked Brett Kavanaugh. Phillips also fails to include that point when discussing the “legitimacy” of Schumer’s demands, although Grassley made an acid reference to that in his letter:
Finally, I am skeptical that your request for Staff Secretary documents is made in good faith. After all, you stated that you will oppose Judge Kavanaugh’s confirmation “with everything [you’ve] got.” Just yesterday, another Democratic senator made the galling comment that supporters of Judge Kavanaugh’s nomination are “complicit” in “evil.” If most Democrats have already made up their minds about Judge Kavanaugh, given the considerable record already available for review, I fail to see how additional documents will be useful. On top of this, you have refused to meet with Judge Kavanaugh. This refusal is highly irregular. In light of the outright opposition to Judge Kavanaugh from Democratic leadership and many members of your caucus, it is clear to me that your demand for millions of additional pages of comparatively irrelevant documents is an attempt to obstruct the confirmation process. …
I’m not going to put American taxpayers on the hook for the Democrats’ fishing expedition, especially when many on your side have already said that they will oppose Judge Kavanaugh’s confirmation.
So yes, Schumer and Democrats are going to lose on this point, because it’s an illegitimate demand — and made for illegitimate purposes.
By the way, the obstruction won’t succeed either. Grassley declared that the hearing will take place “sometime during September” in an interview with Hugh Hewitt. That’ll put a floor vote no later than early October, and there won’t be much Democrats can do to stop that, thanks to their own machinations over filibusters over the last five years. For that, Senate Democrats can thank Harry Reid and Chuck Schumer, as can Republicans and Donald Trump. Maybe someone should think about the legitimacy of Democratic leadership … or at least its quality.