Senate Democrats may be “furious,” as CNN’s Manu Raju reports, but they can’t be surprised. Their demands for documents on Brett Kavanaugh’s time in the George W. Bush White House had already been limited by Senate Judiciary chair Chuck Grassley, who refused to play along with Chuck Schumer’s fishing expedition regarding Kavanaugh’s time as staff secretary. The Bush library has provided some documents from the Supreme Court’s time in the White House counsel’s office, but not before vetting those for executive privilege as well:
Former President George W. Bush’s team has provided the Senate Judiciary Committee with scores of documents from Supreme Court nominee Brett Kavanaugh’s time serving in the White House counsel’s office, but acknowledged that the Bush team ultimately made the decision on which records to disclose for public review.
In a letter obtained by CNN, the Bush representative said that the Bush team made the determination about which documents would not violate privileged communications and are “publicly releasable” to the committee.
The records are expected to be publicly available as soon as Thursday, but they will not include documents from Kavanaugh’s time serving as White House staff secretary from 2003-2006, as Democrats have demanded. Republicans have said such records would not be useful in determining how Kavanaugh would rule as a Supreme Court justice.
The problem, the Bush team explained in their letter to Grassley, is that the National Archives personnel are working at full capacity to review document demands from Kavanaugh’s work in the Bush White House from 2001-3 in their records. They informed Bush Library attorney William Burck that they don’t have anyone available to review the voluminous material Kavanaugh managed from 2003-6.
However, the restriction on documents from the earlier period has Democrats irate. One staffer told CNN that the Bush legal team’s involvement in the process has made the results illegitimate:
“So, to be clear, here is what is happening: The only documents the Senate has received from Kavanaugh’s nearly five years in the Bush White House have come not from the National Archives, but from a private lawyer who used to report to Kavanaugh in the Bush White House, and who currently works for Kavanaugh’s former employer, President Bush,” the aide said. “These documents are not just pre-screened, but doubly pre-screened. We have no idea of what they withheld either the first or second time.”
Schumer’s claiming that this makes Kavanaugh’s confirmation process the “least transparent” ever:
Bush rep says docs will be provided on a rolling basis, but Schumer says of the 125,000 documents provided to the panel, just 5,700 will be made available, saying the process is shaping up as the “least transparent” in history.
— Manu Raju (@mkraju) August 9, 2018
Grassley addressed that notion in his letter to Schumer last month:
You urge me to also request all documents pertaining to Judge Kavanaugh’ s tenure as White House Staff Secretary. Although your letter contains your position as to the importance of the Staff Secretary position, it does not explain how these records will provide senators any meaningful insight into Judge Kavanaugh’s legal thinking in light of the fact that Judge Kavanaugh has served as a federal appellate judge for more than twelve years on the D.C. Circuit. During that time, he has written more than 300 opinions and joined hundreds more, weighing in on some of today’s most significant legal issues. These materials are by far the most relevant to evaluating Judge Kavanaugh’s fitness for the bench.
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.
The Judiciary Committee got 170,000 pages of records for Kagan’s confirmation hearing. In contrast, Grassley expects almost a million pages to be made available to the committee for Kavanaugh’s confirmation. More to the point, however, the committee and the Senate already has access to the data that matters most — twelve years of judicial decisions, opinions, and dissents from Kavanaugh’s time on the DC Circuit Court of Appeals. All of the other documents involved issued that were asked and answered during Kavanaugh’s 2006 confirmation hearing to the appellate court.
The “least transparent” gibe is nothing more than huffing demagoguery, designed to damage the process and Kavanaugh’s reputation for partisan purposes. That’s all Schumer has left.