Senators escalated a bitter dispute over Brett M. Kavanaugh’s documents — signaling a contentious confirmation fight ahead for the Supreme Court nominee even as senators on Tuesday successfully installed another appellate judge under President Trump.
Infuriated with Republicans for requesting only a portion of Kavanaugh’s records from his tenure in the George W. Bush White House, Democratic senators sent a wide-ranging request to the National Archives demanding that his entire paper trail be provided to Congress.
The letter, sent Tuesday, asks for all of Kavanaugh’s records from his time as an associate White House counsel under Bush, as well as his years as staff secretary. Kavanaugh, who was nominated to replace retiring Justice Anthony M. Kennedy, served for two years in the counsel’s office and three years as staff secretary — a high-ranking position that controls the flow of documents in and out of the Oval Office.
“The Republican majority has cast aside Democratic wishes for openness and transparency and has made a partisan request for only a small subset of Judge Kavanaugh’s records,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said Tuesday morning. “It is such a break from precedent that you have to wonder: What are the Republicans hiding about Judge Kavanaugh’s record?”
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) has asked the archives solely for Kavanaugh’s documents from his time in the counsel’s office because Republicans think the paperwork from Kavanaugh’s time as staff secretary is irrelevant to how he would serve as a justice.
Grassley and other Republicans have decried the Democrats’ demands as a costly fishing expedition and argued that the Bush-era paperwork ultimately produced for Kavanaugh, which could be released as early as Wednesday, would be unparalleled in terms of volume compared with other Supreme Court nominees.
“Over the last several days, the minority leader has again continued his unprecedented partisan interference with the business of the Senate Judiciary Committee,” Grassley said on the Senate floor Tuesday afternoon. “In addition to these partisan interventions being unwelcome, many of the minority leader’s assertions are just plain false.”
The battle over Kavanaugh erupted the same day that the Republican-controlled Senate confirmed Georgia Supreme Court Justice Britt Grant to the U.S. Court of Appeals for the 11th Circuit — making the 24th appellate judge installed under Trump. Grant, who was also on Trump’s shortlist of potential Supreme Court picks, clerked for Kavanaugh.
As the Supreme Court fight escalates, Grassley has personally briefed two GOP senators considered to be swing votes on Kavanaugh — Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) — about the paperwork dispute, and both said they were satisfied with how much information the Senate would ultimately get about the nominee.
“As he described it to me, it seems eminently reasonable,” Collins said Tuesday. “It does not make sense for documents that Judge Kavanaugh was only involved in essentially organizing for the president’s review and did not play a role in creating would be subject to this document request.”
Murkowski said that after sitting down with Grassley and his chief counsel, she was “very impressed with what has been made available” when it comes to documents.
But Democrats have accused Republicans of improperly concealing a significant portion of Kavanaugh’s White House tenure that could provide insight into how the nominee advised Bush on several contentious issues that occurred during that administration.
“What we do need is access to documents that show Kavanaugh’s views on and involvement in important issues like torture, the Enron task force, health care and presidential signing statements,” the committee’s top Democrat, Sen. Dianne Feinstein (Calif.), said this week. “Those are issues that Kavanaugh himself said he worked on and are essential to understanding his record.”
All 10 Democrats who serve on the Senate Judiciary Committee signed the letter, provided to The Washington Post in advance of its release.
Schumer also has asked former president George W. Bush to approve releasing all of Kavanaugh’s records, including the staff secretary documents. But a representative for the former president indicated that Bush will stick with the records Grassley has requested, noting that the former president has authorized a “thorough review” of those papers.
Attorney Bill Burck, who is Bush’s presidential records representative, wrote in a letter to Schumer that the vetting process would be fair and thorough, adding: “I am confident you can appreciate President Bush requires nothing less.”
“The lawyers reviewing the records have not been asked their political or party affiliation, nor have they been selected based on their support for or opposition to Judge Kavanaugh’s nomination,” Burck wrote to Schumer in the letter, obtained by The Washington Post. “Rather, they have been instructed to perform their work just as they would in any other document review project: based solely on the proper application of relevant statutory and other legal principles and under the highest professional standards.”
Burck also wrote that Bush asked his legal team to begin reviewing Kavanaugh’s records to help “expedite the committee’s access to the records” as a “courtesy” to senators.
The Democrats also want the National Archives to turn over documents drafted by Kavanaugh that can be “readily found” in the files of other White House officials or offices. The letter also asks for any documents that were “written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of” Kavanaugh, and any record that refers to him by name, his initials or his title.
“That is so broad and well beyond requesting all records related to his role,” a senior administration official said.
It’s also unclear how much the archives may be willing to entertain the Democrats’ request, considering they aren’t in the Senate majority and do not control the committee. In a letter to Feinstein last week, a top archives official said the power of a committee to make such document requests “lies exclusively” with the chairman.
In a separate letter to the archives this week, Grassley also noted that when Republicans had requested documents from presidential libraries when they did not hold the majority, they had been denied.