Looks like Chuck Schumer and his fellow Democrats will have to find a way to vote no on Brett Kavanaugh with only a few hundred thousand pages of documents. That’s the gist of a letter to Schumer from Senate Judiciary chair Chuck Grassley, one whose politeness belies the real message — pound sand.
Schumer tried arguing that Grassley demanded an extensive amount of White House records for Elena Kagan’s confirmation to the Supreme Court. Grassley acknowledges that — and reminds Schumer that Kagan had no judicial experience or record, and that her writings as an Obama administration official was all they could review:
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.
Besides, Grassley writes, he’s getting far more from Kavanaugh’s White House days than Kagan delivered. On top of that, the Kagan document requests avoided delving into areas where executive privilege exists. The documents Schumer wants to see are those relating directly to executive privilege and where Kavanaugh had the least amount of input:
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.
On this point, Ed Whelan and Yuval Levin of the Ethics and Public Policy Center agree. The staff secretary position is neither a policy-making position nor a judicial role. In the context of this confirmation, it’s mainly a red herring and an excuse for obstruction:
As my Ethics and Public Policy Center colleague Yuval Levin has explained, the staff secretary “is basically the traffic cop directing the paper flow in the White House.” It demands “a person with intense attention to detail, no patience for cutting corners, and a willingness to insist that various White House offices and the colorful characters who often occupy them do their jobs and play their parts.” But the job “is in essence procedural and not substantive.” …
It’s plain that Schumer, as part of his effort to obstruct the Kavanaugh nomination, affirmatively desires such “a monumental waste of the Senate’s time.” He obviously agrees that the papers from Kavanaugh’s time as White House staff secretary are not necessary to assess Kavanaugh’s fitness for the Supreme Court, as he has already committed to oppose the nomination.
Grassley comes to the same point. He tells Schumer in clear language that he’s not about to let Democrats derail the proceedings with excessive demands for documents that have little value. That motive is clear, Grassley points out, because not only have most Democrats already decided to oppose Kavanaugh, they won’t even bother to meet him:
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.
Indeed. If they’re already opposed to the confirmation, why do they need any more records, no matter how irrelevant they are? They have access to the best primary source on Kavanaugh’s state of mind, which is Kavanaugh himself, and they’re not bothering to even ask him directly what he thinks. There’s no need to bend over backwards to accommodate the unaccommodating.