Brett M. Kavanaugh writes in an email that he’s a fan of the Spanish tapas hot spot Jaleo. He was pressed on whether official memos should be single- or double-spaced. And in June 2001, he wrongly predicted that then-Chief Justice William H. Rehnquist would retire.
The tens of thousands of pages that have emerged from the Supreme Court nominee’s tenure in the George W. Bush White House reveal little about his judicial philosophy and qualifications, much less any damning detail that could sink his bid to replace retired Justice Anthony M. Kennedy.
Yet those papers are being disclosed to the public in an unusual fashion: A lawyer working for Bush and his legal team are scouring the reams of documents, determining what can be released and sending them to the Senate. The National Archives is doing its own nonpartisan review, but that won’t be finished for weeks — long after Kavanaugh is likely to be confirmed and has taken his seat on the nation’s most powerful court.
“It’s not just breaking norms. It, frankly, is bordering on absurdity,” said Kristine Lucius, a former Democratic staff director for the Senate Judiciary Committee who worked on a half-dozen Supreme Court nominations. “I don’t know how a senator can do their job if they can’t review their entire record as a political appointee.”
How the Republican majority is handling Kavanaugh’s extensive records has infuriated Democrats, who are powerless to change a process likely to set a precedent for the scrutiny of future Supreme Court nominees.
The sheer volume of Kavanaugh’s paper trail is staggering. From his two-year tenure as associate White House counsel, there are an estimated 910,000 pages. A separate 20,000 pages stem from Kavanaugh’s time working under independent counsel Kenneth Starr in the 1990s.
And in three years as Bush’s staff secretary, Kavanaugh accumulated about 2,935,000 pages of documents, including hundreds of thousands of pages of emails.
Republicans have requested Kavanaugh’s White House counsel records but have ruled his staff secretary papers out of bounds. In addition to the documents, Kavanaugh has spent a dozen years on the U.S. Court of Appeals for the District of Columbia Circuit, amassing a record of more than 300 legal opinions that Republicans say are the best indicator of the kind of Supreme Court justice he will be.
“If the question is whether Kavanaugh should be confirmed, that’s the question,” said Rick Garnett, a law professor at the University of Notre Dame. “It’s not obvious to me why all this paperwork is relevant to that question since it’s not his work product.”
But what makes the fight for Kavanaugh’s records unusual is that the National Archives, which has played a central role for previous nominees in vetting their White House papers and sending them to the Senate, has effectively been sidelined. In its place is a team led by attorney Bill Burck, who also served in the Bush White House as Kavanaugh’s deputy when the nominee was staff secretary.
Burck, with an army of more than 50 lawyers, appears to be moving at a much faster clip than the formal process at the Archives, where about 30 staff members are spending hours going through Kavanaugh’s records. The Archives review won’t be completed until late October, well beyond when Republicans would like Kavanaugh to be confirmed.
The Archives issued a statement Wednesday saying the Burck-led process was “completely apart” from its work and is “something that has never happened before.”
“This effort by former president Bush does not represent the National Archives or the George W. Bush Presidential Library,” the Archives said Wednesday. “The Senate Judiciary Committee is publicly releasing some of these documents on its website, which also do not represent the National Archives.”
Republicans initially planned for Archives officials to review the Bush legal team’s work to ensure everything that needed to be disclosed was being turned over to the Senate. But late last week, Burck disclosed to the Senate Judiciary Committee that the Archives, scrambling to finish its own vetting, won’t be able to review the Bush lawyers’ work as requested.
Since then, Burck and his team have been sending batches of papers that they have deemed can be released publicly. As of Wednesday, the Senate Judiciary Committee had released about 115,000 pages of Kavanaugh’s White House counsel papers, which are often filled with thousands of pages of duplicate emails and have been published on the committee’s website late at night or on the weekend.
The latest tranche posted late Tuesday night included 21,000 pages of emails between Kavanaugh and other White House officials that covered both mundane scheduling details and allusions to more substantial policy and legal matters. In one exchange, Kavanaugh indicated his opposition to the landmark McCain-Feingold law, which curtailed the flow of big money in politics, saying that the opinion of a judge who called it unconstitutional was “the clearest and best.”
Burck’s legal team wrote to the Archives again late last week asking it to independently assess the team’s work, according to one official familiar with the review process, but the Archives had yet to respond to them directly.
“We are very happy to have the Archives double-check our review and provide their own assessment,” the official said. “In fact, we are eager for them to do that and hope they can prior to the hearing.”
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) has also not requested a “privilege log,” according to Democratic officials, which is a list that catalogues all records that don’t get turned over to the Judiciary Committee, whether for privilege or other sensitive reasons.
Democrats say Republicans are circumventing the Archives, a neutral arbiter of the documents, to quickly install Kavanaugh at the Supreme Court and cement a conservative majority on the court for a generation. Republicans simply see it as Bush being helpful in speeding up what otherwise would be an arduous task of reviewing millions of pages in time for Kavanaugh’s hearings.
“President George W. Bush’s willingness to expedite disclosure of Judge Kavanaugh’s emails and other records, at nonpublic expense, is enabling the committee to review more information than ever before while sticking close to the historical timeline for evaluating Supreme Court nominees,” said Taylor Foy, a committee spokesman. “Chairman Grassley is confident that the committee and the Senate will have ample information and time to carry out their responsibilities.”
Lucius, now the executive vice president for policy and governmental affairs at the Leadership Conference on Civil and Human Rights, said senators regularly use the material from the nominees to shape their line of questioning during confirmation hearings. Kavanaugh’s documents could shed more insight into his role in the Bush White House, particularly on national security in the era following the Sept. 11, 2001, terrorist attacks.
Burck told Senate Minority Leader Charles E. Schumer (D-N.Y.) in a letter last month that Bush had offered to have his legal team vet the documents and then provide them to the Judiciary Committee as a “courtesy” to senators. Burck has stressed that the attorneys going through the documents would be fair.
“The lawyers reviewing the records have not been asked their political or party affiliation,” Burck wrote to Schumer, “nor have they been selected based on their support for or opposition to Judge Kavanaugh’s nomination.”
The increasingly bitter dispute over Kavanaugh’s documents is yet another escalation of the judicial confirmation wars in the Senate, where lawmakers endlessly go tit-for-tat in how they treat judicial nominees of both parties.
In the past five years, the party in power has changed long-standing Senate rules to expedite nominees. And in 2016, Senate Majority Leader Mitch McConnell (R-Ky.) blocked President Barack Obama’s Supreme Court nominee Merrick Garland, insisting the next president should fill a court vacancy — a gambit that paid off.
The paper trail for Kavanaugh is significantly greater than that of previous Supreme Court nominees who had also worked in a White House, such as Justice Elena Kagan (170,000 pages) and Chief Justice John G. Roberts Jr. (70,000 pages). And it’s a dilemma that is sure to surface again, as future nominees spend more time in the digital age and rack up a lengthy email record.
“Obviously we are doing things differently than we had historically,” said Carrie Severino, the chief counsel and policy director of the conservative advocacy group Judicial Crisis Network. Officials are “trying to balance the increased contentiousness of nominations with the understanding that it’s not feasible or reasonable to go through every single piece of paper or conversation or interaction.”
The documents dispute is one element of the overall battle to confirm Kavanaugh that has largely gone the way Republicans had planned since Kennedy announced in June that he would retire.
Two potential swing Republican votes — Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) — have indicated they are open to voting for the nominee. Two centrist Democrats seen as possible yes votes — Sens. Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.) — met with Kavanaugh on Wednesday.
Confirmation hearings will begin Sept. 4, and McConnell indicated that Kavanaugh is probably on track to be confirmed by Oct. 1, when the Supreme Court convenes for its fall term.
Democrats are still nonetheless loudly protesting over documents, embittered that they won’t get access to the papers that could better shape their case against Kavanaugh, particularly in the confirmation hearings.
“What they’re doing is unprecedented. They’re breaking the norms and likely the law,” Sen. Richard Blumenthal (D-Conn.), a member of the Judiciary Committee, said, referring to the presidential records act. “And I hope that there is no precedent here. But that’s a real danger.”
Deanna Paul contributed to this report.