The documents in question, from Kavanaugh’s time as a senior policy and legal aide to President George W. Bush, may offer rich insights into what he thinks about critical legal matters. Kavanaugh’s supporters justifiably boast of his stellar résumé, but in doing so they highlight its similarity to Justice Elena Kagan’s — who was likewise a White House policy and legal aide earlier in her career. It should be obvious, then, that just as the Judiciary Committee saw all of Kagan’s White House papers, it should see all of Kavanaugh’s.
But Senate Republican leaders seem inclined to take whatever subset of materials the administration chooses to provide. So it comes down to this: Is anyone really going to get fired up about a dispute over documents? Who should care about seeing all this paper?
First, Senate Republicans should . . . because they did. When Kagan was nominated, Sen. Charles E. Grassley (Iowa) — now the chairman of the Judiciary Committee — said that “for the Senate to fulfill its constitutional responsibility of advise and consent, we must get all of her documents from [ex-president Bill Clinton’s files] and have enough time to analyze them so we can determine whether she should be a Justice.” The then-ranking Republican on the committee said the panel needed “to obtain the documents relating to [Kagan’s White House] service in advance of the hearings,” urging the former and then-current presidents to drop all claims of executive privilege in those documents. That Republican was Sen. Jeff Sessions, now President Trump’s attorney general.
Second, Senate Democratic leaders should be unflinching in their demands to see these documents. The vast majority of the documents were likely seen by a substantial number of people in the Bush White House when they were created and circulated. Some of these ex-officials may still have copies. Even if they don’t, they may know what Kavanaugh wrote about abortion, health care, civil rights and civil liberties. Bush-era officials could have easily shared these recollections with key people in the Trump White House during the process that led to Kavanaugh’s nomination.
Thus, when Kavanaugh testifies before the Judiciary Committee and says, inevitably, that he will offer “no hints, no winks, no nods” on potential rulings — that answer may not be true for everyone: The White House may indeed have ample “hints and nods,” by having seen (or been briefed on) Kavanaugh’s Bush-era writings. That knowledge should be in the possession of all senators, not just the White House.
Third, red-state Democrats especially should press hard for the documents. These senators are caught between Trump-led pressure demanding support for the nomination and Democratic base pressure demanding opposition. They have blunted these forces by saying that will decide based on the record, not politics.
But how can they decide based on the record if the White House withholds Kavanaugh’s records? And if the White House will not produce them in full, what more common-sense reason is there to oppose Kavanaugh’s confirmation than “I’m not going to vote for someone for the Supreme Court unless I see the paper trail”? It’s an argument tailor-made for practical voters in “Show Me” Missouri and throughout the Midwest.
And finally, there is Kavanaugh himself. He, more than anyone, should want these papers made public. For if documents are withheld in the confirmation process, they will nonetheless become public in years ahead due to the Presidential Records Act — with Bush’s wholesale power to completely restrict access set to expire in 2021. Starting then, Kavanaugh’s White House papers will trickle out, year after year.
If he is confirmed, nothing could undermine Kavanaugh’s stature more than the release of these papers while he is sitting on the high court, if they turn out to contain information that obviously should have been known by the Senate before it voted on his nomination. That would be bad for Kavanaugh, bad for the Senate and especially bad for the court as an institution.
Might the documents result in hard questions for Kavanaugh in the confirmation process? Perhaps. But I know Kavanaugh: He is smart, genial and persuasive. He will likely do well in explaining why he wrote whatever he wrote. And if, for some reason, he cannot, that should be a consideration in whether he is confirmed.
The Kavanaugh documents are coming out: either before the Senate votes, or some day down the road. It is in everyone’s interest that the former, not the latter, be the way the Senate learns what some in Washington may already know about Kavanaugh’s thinking.