So much for the new era of comity, the appeal to better angels over partisanship, ushered in by the death of Arizona Sen. John McCain. If you had any delirious hopes of fever-breaking, they should have been thoroughly dashed by the first day of the Senate Judiciary Committee’s hearings on Supreme Court nominee Brett M. Kavanaugh. They should have been dashed, in particular, by the refusal of the panel’s Republican majority to allow adequate and timely access to documents from Kavanaugh’s White House service.
It was a poisonous session, as acrimonious as I have witnessed since sitting in the committee’s hearing room for the grilling of Anita Hill during the second round of the Clarence Thomas hearings. And while no dispute over documents, however impassioned, can rival the Hill-Thomas encounter, the Republican majority’s handling of this issue will be even more dangerous for the future of the Senate’s ability to conduct its constitutional duty of advice and consent.
There is always some tension, when the Senate majority is of the same party as the president, between exercising independent judgment and acting like a cheerleader for the nominee. But Senate Republicans, in particular Judiciary Committee Chairman Charles E. Grassley (Iowa), would do well to reflect about what goes around. A majority that denies the minority’s reasonable requests today is apt to find itself on the losing end of its own reasonable requests down the road.
Grassley is correct that, when a sitting judge is the Supreme Court nominee, the best evidence of future performance is the judge’s past rulings. But the best evidence should not mean the only available evidence. Especially when nominees are wary to the point of stonewalling about their views on substantive legal issues, and because a lower-court judge’s rulings are appropriately constrained by Supreme Court precedent, other evidence may help shed light — or at least an opening for questioning — on a nominee’s true beliefs.
At the same time, Senate Democrats arguing for access to Kavanaugh’s White House documents would have a more compelling case if they had not already made clear their opposition to his nomination.
Call me old-fashioned, but I’d prefer to wait to hear what Kavanaugh has to say, including about whether he will commit to recusing himself from cases involving the investigation into the president who nominated him. That said, the argument by some Democrats that Kavanaugh should not be confirmed while the investigation is pending goes way too far; while Trump is president, he gets to exercise presidential prerogatives, including filling Supreme Court vacancies.
Grassley’s protestations notwithstanding, the number of pages of Kavanaugh documents released is irrelevant. It’s not the size of the pile but the share of the universe of material. There is no imperative that a vacancy be filled by the first Monday in October, when the court begins its new term. It takes some nerve for Republicans, having blocked President Barack Obama from filling the vacancy created by the death of Antonin Scalia, to now assert the need for speed.
Process matters, and this process reflects four distinct outrages:
First, Republicans’ refusal to request any documents from Kavanaugh’s tenure as President George W. Bush’s staff secretary. It is possible that some of these documents should be shielded, but that does not mean that all of them should. The staff secretary is not a robotic paper-pusher, but a key presidential adviser. There had to be a way, if Republicans were operating in good faith, to cull through the staff secretary material and turn over potentially relevant documents.
Second, the Trump White House’s Friday night stonewall: the announcement, just days before the hearing, that Trump would assert privilege to prevent the release of 100,000 pages of documents from Kavanaugh’s earlier service as associate White House counsel.
Third, the Monday night document deluge: the dumping of 42,000 pages of records the evening before the hearing. Advice and consent shouldn’t entail a facility for speed-reading. This is too important a decision to have a process this rushed — as the panel’s ranking Democrat, California’s Dianne Feinstein put it, a “vetting process that has cast aside tradition in favor of speed.”
Fourth, documents provided to senators in a way that makes them unusable: deemed “committee confidential” and therefore not allowed to be used as the basis for questioning. What is the utility of having a document if a senator is not permitted to refer to it?
The Senate, as proxy for the American people, gets one shot at questioning the nominee. It should have access to relevant material and enough time to process it. That this has become a contested, partisan issue speaks volumes about Washington today and, for all the high-minded mourning, how little McCain’s passing changed anything.