It’s been simmering since his nomination.
The fight over Supreme Court nominee Brett Kavanaugh’s lengthy paper trail reached a fever pitch at the start of his confirmation hearing on Tuesday.
Democrats said the decision by a representative of the Bush White House library to release 42,000 pages of documents from Kavanaugh’s time in the White House on Monday — the day before proceedings started on Kavanaugh’s confirmation hearing — should be reason enough to delay the hearing.
“This really flies in the face of the norms of this committee,” said Sen. Richard Blumenthal (D-CT). Senate Minority Leader Chuck Schumer tweeted about the documents as they were released Monday night.
The Senate was just given an additional 42,000 pages of Kavanaugh documents the NIGHT BEFORE his confirmation hearing. This underscores just how absurd this process is. Not a single senator will be able to review these records before tomorrow.— Chuck Schumer (@SenSchumer) September 4, 2018
“We start this hearing with only 4 percent of Brett Kavanaugh’s White House record available to the public,” emphasized Sen. Dianne Feinstein (D-CA) last week.
The fight over Kavanaugh’s extensive paper trail has been ongoing throughout his confirmation process. Republicans are eager to ensure Kavanaugh gets confirmed as soon as possible — not wanting to risk losing control of the Senate after midterms and losing their ability to confirm Trump’s Supreme Court pick — and to do so, they are blowing past a more thorough review of his record.
Relative to other recent judicial nominees, the overall process isn’t moving at a unique pace, exactly. Grassley noted that Kavanaugh’s hearing is taking place 57 days after his nomination was announced, while Justices Sonia Sotomayor, Elena Kagan, and Neil Gorsuch’s all took place roughly 48 to 49 days after their announcements.
The decision to dump such an extensive collection of documents the day before the confirmation hearing was unique, however. While Republican staffers said they were confident they’d be able to complete the review of the documents by Tuesday morning’s panel, Democrats quipped that this would mean processing thousands of documents per hour.
This is ultimately a sign of how far norms in the judicial confirmation process have deteriorated. There may be nothing of note in those documents. But there might be, and there won’t be a process for the public or even the senators themselves to know.
“Brett Kavanaugh withholding his documents is like Trump without holding his tax returns,” says Ben Wikler, the Washington director of MoveOn.org.
The documents were a key reason Mitch McConnell thought Kavanaugh would be tough to confirm
Though the fight over the documents became very public on Tuesday, the conflict has been simmering since Kavanaugh was nominated. He served as both White House counsel and staff secretary during the Bush administration. As staff secretary — a time that he’s characterized as a formative experience for his judicial practice — it’s possible that he engaged with millions of documents, a trove that Democrats have been interested in mining.
His extensive document trail is one of the major reasons Senate Majority Leader Mitch McConnell warned before his nomination that Kavanaugh could take longer to confirm. “The number of pages is said to run into the millions, which Mr. McConnell fears could hand Senate Democrats an opportunity to delay the confirmation vote until after the new session of the court begins in October, with the midterm elections looming the next month,” the New York Times’s Maggie Haberman and Jonathan Martin reported in early July.
But once Kavanaugh was nominated, Senate Republicans changed their tune. In the interest of expediting his confirmation process, they have decided to skip a great number of documents usually released as a matter of transparency, including the ones from his time as staff secretary.
“I think there’s a very real substantive fight happening here, and it’s a very much a break from precedent and a break from norms and a break with the law. The law clearly states that the White House’s records are a matter of public record and belong to the people,” says Jake Faleschini of the Center for American Progress. “The people have a right to know what happened in the Bush White House, when Kavanaugh was one of the most important people who was there.”
Senate Democrats submitted a Freedom of Information Act request to gain access to them last month, but such requests are often slow.
Republicans argued that the documents Democrats wanted from the archives — especially the ones relating to Kavanaugh’s time as White House staff secretary — were not relevant for his consideration for the Supreme Court. Additionally, they’ve noted that they have obtained a record number of documents related to Kavanaugh’s record, compared to those obtained during prior nomination processes.
“[Democrats’] bloated demands are an obvious attempt to obstruct the confirmation process,” Sen. Chuck Grassley (R-IA), the chair of the Judiciary Committee, has said.
Who is Bill Burck?
Instead, a very non-neutral arbiter, Bill Burck, an attorney for the George W. Bush library and a longtime Republican, is overseeing the review of the documents, which has raised Democrats’ ire.
Indeed, Burck is a longtime insider in Republican legal circles — and reportedly a longtime friend of Kavanaugh’s. The New York Times points out that even the two men’s résumés are strikingly similar: “Yale for their undergraduate and law degrees, clerkships with Justice Anthony M. Kennedy and Judge Alex Kozinski, brief stints as prosecutors, and jobs in the Bush White House” (where Burck worked as Kavanaugh’s deputy).
More recently, Burck has represented at least three current or former Trump White House officials — Don McGahn, Reince Priebus, and Steve Bannon — regarding special counsel Robert Mueller’s investigation. His representation of McGahn has particularly raised eyebrows, since McGahn is the main Trump White House official in charge of getting Kavanaugh confirmed.
This past weekend, the White House further directed Burck to withhold 100,000 documents from public release.
“Who is Bill Burck?… This mysterious Bill Burck who is filtering these documents. … Who’s paying him?” said Sen. Dick Durbin (D-IL) on Tuesday.
Durbin pointed out that the Constitution says Supreme Court justices are appointed with ”the advice and consent of the Senate. It doesn’t include Bill Burck. ... By what authority is this man holding back hundreds of thousands of documents?”
All of this adds up to Republicans making something of a mockery of the judicial vetting process. Typically confirming Supreme Court justices, who hold lifetime appointments and have ultimate power over deciding the constitutionality of a wide range of laws, is considered to be a laborious process. Republicans, knowing they need to vote as quickly as possible, have just decided to move past it. And they are likely correct — they have the votes, and it’s likely Kavanaugh will be confirmed.
Democrats’ case for how the process has deteriorated
As Democrats have said repeatedly, the review of Kavanaugh’s documents has been handled in an “unprecedented” fashion. And their claims are relatively fair.
“It’s both a political maneuver to slow down the confirmation process and a sign of the deterioration in the Senate’s vetting of judges and justices,” says George Washington University congressional expert Sarah Binder. “The issue I think is less the number and type of documents received [than] the ability of the parties on the committee to reach consensus on the vetting process. In a post-nuclear and highly polarized Senate, GOP incentives to secure buy-in from the Democrats seem severely diminished.”
While the issue of unearthing Kavanaugh’s extensive archive of documents — something that could very well delay the timing of his confirmation — emerged as a flashpoint right after his nomination was announced, it ultimately developed into a partisan fight in the upper chamber.
Even as Democrats have argued that the documents are vital to understanding Kavanaugh’s record, Republicans have declined to even request a major fraction of them. Still, there are many objections to Kavanaugh based purely on what we already know.
“I don’t think the papers are all that important,” Aziz Huq, a University of Chicago law professor, said. “Kavanaugh has what seem to me deeply worrying signs in his actual decisions and in scholarly writings (e.g., his views on investigating and indicting a president). I think that should be the focus of confirmation hearings.”