The Kavanaugh Document Fight Grassley is following the precedents set by Democrats on Kagan.
https://www.wsj.com/articles/the-kavanaugh-document-fight-1534202892
The Senate Judiciary Committee announced Friday that confirmation hearings for Supreme Court nominee Brett Kavanaugh will begin September 4, nearly two months after his nomination. That’s more than enough time for Senators to examine his voluminous public record, but Democrats are alleging a cover-up.
“We are seeing layer after layer of unprecedented secrecy in what is quickly becoming the least transparent nominations process in history,” declared Minority Leader Chuck Schumer last week.
We hear that communications are strained, if they exist at all, between the staffs of Judiciary Chairman Chuck Grassley and ranking committee Democrat Dianne Feinstein, who is holding her breath and stomping her feet in tune with Mr. Schumer. The California Democrat is running for re-election against a left-leaning Democrat who claims she’s not doing enough to resist all things Trump. She isn’t about to be outflanked on the left regarding Judge Kavanaugh.
In any event, Democrats are the ones demanding the unprecedented. Their latest complaint is that documents from Mr. Kavanaugh’s years in the White House counsel’s office are being vetted for release by William Burck, a former colleague in the George W. Bush White House. “Unless it was produced by the National Archives, every document you see from Judge Kavanaugh’s White House tenure was selectively chosen for release by his former deputy, Bill Burck. This is not an objective process,” said Illinois Democrat Dick Durbin.
But this is following the precedent set during the 2010 nomination of Elena Kagan. Document production from her years in the Clinton White House counsel’s office was supervised by Bruce Lindsey, whose White House tenure overlapped with Ms. Kagan’s. Bill Clinton designated Mr. Lindsey to supervise records from his Presidency in cooperation with the National Archives and Records Administration under the Presidential Records Act. Some documents related to Ms. Kagan’s White House tenure didn’t become public until 2014.
Mr. Burck is playing a similar role to Mr. Lindsey’s. Mr. Bush appointed Mr. Burck as his Presidential Records Act designee in 2009 and Mr. Burck did the same document supervision during the Neil Gorsuch nomination. A former President can restrict access to many presidential records for up to 12 years after he leaves office, so Mr. Bush is doing the Senate a favor by letting those records be reviewed.
Mr. Burck’s review will get documents to the Senate faster than the National Archives can, and Mr. Burck has said that if he and his team decide that a document should be withheld from the Senate, then the Archives may independently review the decision.
Democrats are also griping that Chairman Grassley isn’t seeking all of the documents from Mr. Kavanaugh’s years as staff secretary to Mr. Bush. But nearly all of these are irrelevant to how Judge Kavanaugh would rule on the High Court. The Obama Administration produced no documents—none—from Justice Kagan’s years in the Solicitor General’s office because they were said to relate to executive-branch deliberations on legal issues. The staff secretary’s documents are much less relevant to legal matters than those from the SG’s office.
Judge Kavanaugh’s confirmation is fast becoming one of the most transparent in history. The Obama White House provided 173,000 documents on Ms. Kagan and the Trump White House produced 182,000 for the Gorsuch nomination. The White House has already turned over 195,000 on Judge Kavanaugh, with tens of thousands more to come.
His more than 300 opinions are a matter of public record, while Justice Kagan had none when she was nominated. The record of how Judge Kavanaugh has decided cases in the past is the best insight into how he would decide them in the future. Yet Democrats seem uninterested because they don’t provide some “gotcha” moment about abortion rights.
The Democratic goal here isn’t transparency. It’s to create enough of a public fuss that a Republican Senator or two gets the political jitters and helps to stall a confirmation vote past the election. The hope is that, as the fight drags on, something will turn up that causes skittish Republicans to vote no.
Republicans are under no obligation to play along, and they would be doing a disservice to the Court if they did. Mr. Grassley is accommodating Democrats according to their own former standards, and he is right to keep on course for a September vote.
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