Democracy Dies in Darkness

Morning Mix

Hours before Kavanaugh nomination hearings, Bush lawyer releases 42,000 pages of documents to Judiciary Committee

September 3, 2018 at 11:37 PM

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The Washington Post brings you live coverage and analysis of Supreme Court nominee Brett Kavanaugh’s confirmation hearing. (The Washington Post)

Follow live coverage of Brett Kavanaugh’s confirmation hearings here: Kavanaugh hearings off to disruptive start as Democrats and protesters push for delay

Hours before the start of hearings on Brett Kavanaugh’s nomination to the Supreme Court, the lawyer for former president George W. Bush turned over 42,000 pages of documents from the nominee’s service in the Bush White House, angering Senate Minority Leader Charles E. Schumer, who issued what is certain to be a futile call to delay the proceedings.

“Not a single senator will be able to review these records before tomorrow,” Schumer (D-N.Y.) tweeted Monday evening.

Taylor Foy, a spokesman for Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), responded that “our review team will be able to complete its examination of this latest batch in short order, before tomorrow’s hearing begins.” A few hours later, a tweet from the committee said that the “Majority staff has now completed its review of each and every one of these pages.”

The hearings are scheduled for 9:30 a.m. Tuesday, with opening statements by committee members. No information was released on the subject matter of the documents, and Bush’s lawyer asked that they be kept from the public, made available only to committee members and staff.

Kavanaugh, appointed to the U.S. Court of Appeals for the D.C. Circuit by Bush, served the president in the White House Counsel’s Office from 2001 to 2003 and as staff secretary from 2003 to 2006. 

William A. Burck, a lawyer representing Bush, said in a letter to Grassley that the 5,148 documents totaling 42,390 pages retrieved from the National Archives were to be treated as “committee confidential,” with access limited to Judiciary Committee members and staff with no public availability, at least for the time being.

Related: [How Trump is shifting the most important courts in the country]

In the letter to Grassley, Burck said lawyers working on behalf of the former president would determine at a later date which of the documents are “appropriate for public release.”

The Bush legal team had already turned over about 415,000 pages to the committee, with about 147,000 of them withheld from public view. Trump has claimed executive privilege to prevent release of more than 101,921 pages of records from Kavanaugh’s tenure in the White House. Kavanaugh, as “an associate and senior associate White House counsel, dealt with some of the most sensitive communications of any White House official,” including deliberations on judicial candidates, Burck said in a letter to the committee Friday.

The level of production of documents from Kavanaugh’s White House days, both in the counsel’s office and as Bush’s staff secretary, has been a central point of attack for Democrats jousting with the White House and Republicans over Trump’s second Supreme Court nominee. Demands for documents from Kavanaugh’s staff secretary service have been rejected by Republicans.

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Senate Minority Leader Charles E. Schumer on July 24 continued to press for the release of all documents related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House. (The Washington Post)

Justice Elena Kagan was the last Supreme Court nominee to have served in a White House. Christopher Kang, deputy counsel under President Barack Obama, told The Washington Post that Obama did not invoke privilege on any documents involving her work.

“Republicans know this has been the least transparent SCOTUS process in history,” Schumer tweeted, “and the hearings should be delayed until we can fully review Judge Kavanaugh’s records.”

Foy said that the volume of documents turned over dwarfs “the total Executive Branch material for the last five confirmed nominees combined.”

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The Post's Robert Barnes explains some of the factors that could influence whether Supreme Court nominee Judge Brett M. Kavanaugh is confirmed. (Monica Akhtar/The Washington Post)

The hearings are expected to last four days, so staffers and members will have more than a few hours to review the documents before any vote is taken on sending the nomination to the full Senate.

Fred Barbash has been with The Washington Post for 30 plus years in a multitude of roles including but not limited to Supreme Court reporter, National editor, London bureau chief and founding editor of The Post's Morning Mix. He has covered all three branches of government and courts on every level and has written widely on Constitutional history.

Seung Min Kim is a White House reporter for The Washington Post, covering the Trump administration through the lens of Capitol Hill. Before joining The Washington Post in 2018, she spent more than eight years at Politico, primarily covering the Senate and immigration policy.

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