The Kavanaugh Documents Controversy

During the first day of the hearing for Judge Brett Kavanaugh’s nomination for the Supreme Court starts on Tuesday, September 4, 2018. On the first day, the senators on the Senate Judiciary Committee will make opening statements, but there won’t be questions for the nominee. But these opening statements are likely to be unusually contentious. Democrats are angry with the White House and the Republicans over the release — or lack of release — of documents from Judge Kavanaugh’s career in government. This post summarizes some of that controversy.

In the 1990’s, Kavanaugh worked for Ken Starr when he was investigating President Bill Clinton. Later, he spent time working in George W. Bush’s White House. Senate Democrats demanded to see all documents from this time. Almost three weeks after Kavanaugh’s nomination was announced, Senator Grassley, Republican chair of the Senate Judiciary Committee, asked Patrick Mordente, Director of the George W. Bush Presidential Library and Museum, for emails and textual records relating to Judge Kavanaugh’s time serving the White House, and documents relating to Judge Kavanaugh’s nomination to the U.S. Court of Appeals for the D.C. Circuit. At about the same time, Senator Dianne Feinstein, ranking Democrat on the Committee, wrote to the National Archives and Records Administration (NARA), expressing concern that NARA had not yet started reviewing Kavanaugh records for release, thus deviating from past Supreme Court nominee document review practices.

In early August, NARA announced that it would be unable to complete its review of the relevant records until late October. Senate Democrats file Freedom of Information Act (FOIA) requests to get Kavanaugh records from NARA, Department of Justice, Department of Homeland Security, and the CIA. Senator Grassley nonetheless set the hearing to begin this week. In the meantime, Bill Burck, personal lawyer for President Bush, reviewed and approved the release of some documents from the Bush Library. Burck was Kavanaugh’s deputy in the White House and now represents several current and former White House staffers — Don McGahn, Reince Priebus, and Steve Bannon — in relation to the Mueller probe. After Burke completed his review, on the Friday before the hearing begins, the Trump administration announced that it was asserting executive privilege over 100,000 pages of documents that the Bush Library had cleared for release.

Democrats and their allies are comparing the unreleased documents for Kavanaugh with what they say was the comprehensive release of documents from Justice Elena Kagan’s time in the Clinton White House during her confirmation hearings. Democrats argue that the same level of cooperation should be shown today. Republicans, on the other hand, argue that some of the documents requested are irrelevant to Brett Kavanaugh’s judicial philosophy, and that his opinions during his time as a judge on the D.C. Circuit, along with other publicly available documents, should be sufficient, and that the documents produced are comparable to those produced for Kagan’s nomination.

In addition, there are some specific areas of dispute. During Kavanaugh’s confirmation hearings for his appointment to the D.C. Court of Appeals in 2006, he stated that was not involved with the legal issues surrounding the use of enhanced interrogation techniques on high value detainees. A newly released email from November 19, 2011 has recently become the focus of those who doubt the veracity of this claim. Senator Patrick Leahy, for example, a longtime Democratic member of the Committee, explains that he needs “Kavanaugh’s FULL record because it will reveal if he lied to me under oath in 2006—whether he is fit to serve on our highest court.”

Democratic Senators are not the only ones pushing for more documents regarding his time in the White House. On August 13th, Lambda Legal announced that it had also filed FOIA requests for documents and communications, specifically from Kavanaugh’s time in the White House from 2003 to 2006. (Lambda Legal is a LGBTQ civil rights legal organization.) They filed requests with eight different departments and agencies citing, for example, the interest that both Lambda Legal and the public have in knowing what role Kavanaugh played in President Bush’s efforts in advocating for a constitutional amendment that would have banned same-sex marriage. The announcement, with links to each individual FOIA request, can be found here.

The hearing is poised to go forward without all the documents sought by Democrats and their allies. But with FOIA requests outstanding, at least some of those documents may eventually be made public, albeit perhaps after the hearing — and possibly even after the vote on Kavanaugh’s confirmation. What he says during the hearing, and how it compares to the documentary record, may be a controversy that does not end soon.

ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, contributed to this post.

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