In Brett Kavanaugh’s long and distinguished career in law, one period stands out as especially important to him.
“People sometimes ask what prior legal experience has been most useful for me as a judge,” Kavanaugh, President Donald Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court, wrote in Marquette Law Magazine in 2016. “And I say, ‘I certainly draw on all of them,’ but I also say that my five-and-a-half years at the White House and especially my three years as staff secretary for President George W. Bush were the most interesting and informative for me.” Six years earlier, he made a nearly identical statement.
Given these remarks, it’s understandable that U.S. senators would be interested in his work and writings during his tenure in the Bush White House. After all, in the coming months they will be voting on whether to confirm Kavanaugh to a lifetime post on the Supreme Court. From there, he will spend the next three to four decades interpreting the Constitution and shaping the future of American law. Kennedy’s impact, as the court’s swing justice, on the nation’s lives and liberties underscores the gravity of this process and the need for maximal transparency.
Senate Republicans apparently disagree. Chuck Grassley, the Iowa senator who chairs the Senate Judiciary Committee, sent a letter notifying Minority Leader Chuck Schumer last week that he was “not going to put American taxpayers on the hook” by seeking Kavanaugh’s records from his time as Bush’s staff secretary. (He will still request records from when Kavanaugh served in the White House counsel’s office.) It’s unlikely that those records, Grassley wrote, would provide “any meaningful insight” into how Kavanaugh would perform his judicial duties if confirmed to the Supreme Court.
Grassley is set to request from the executive branch more documents related to Kavanaugh than any preceding nominee. But that makes his refusal to request documents related to Kavanaugh’s tenure as staff secretary all the more bizarre. There doesn’t appear to be any reasonable justification to keep those documents out of the public eye before Kavanaugh’s confirmation vote, other than the concerns that you might find something that could prevent it.
Republican senators aren’t the only ones who have been critical of the Democrats’ request. National Review’s Ed Whelan, a prominent figure in the conservative legal movement, derided “Schumer’s delusory document demand,” arguing that Democrats should be satisfied with the records that the judiciary committee’s Republican chairman has already sought to obtain. “By any sensible measure, the document production—unprecedented in volume—that [Chuck] Grassley is arranging far exceeds what any senator could reasonably expect,” Whelan wrote.
The White House staff secretary oversees the flow of documents into and out of the Oval Office. Whelan quoted a colleague who described the position as a mere “traffic cop,” but that may be underselling it quite a bit. The staff secretary can provide notes, offer recommendations, prioritize certain issues above others, and exercise other subtle means of influence over the policymaking process. Rob Porter, who served in the role under Trump before resigning earlier this year amid allegations of domestic abuse, was described as an influential figure who provided “a competent, stabilizing presence in a dysfunctional, chaotic White House.”
As staff secretary from 2003 to 2006, Kavanaugh would have been well-placed to weigh in on some of the Bush administration’s most significant moments, including the Iraq War and its aftermath, the Abu Ghraib scandal and other torture-related policies, the reauthorization of the PATRIOT Act, the federal partial-birth abortion ban, and more. These issues aren’t unrelated to the judicial role he would perform on the high court, especially given that Kavanaugh has said how influential the staff secretary role was on his future performance on the bench.
The practical justifications for keeping these documents secret are unconvincing. Time is not an issue; there is no deadline on Kavanaugh’s nomination. Surely the Senate can wait a few weeks or months for the National Archives to complete the relevant process and for the senators’ staffs to review them accordingly. Republicans have been more than willing to let the court function with only eight justices in the recent past, when they torpedoed President Barack Obama’s nomination of Merrick Garland, so any concerns about the Supreme Court’s ability to do its job when the justices reconvene in October are misplaced.
Grassley’s concerns about taxpayer funds are also unpersuasive. It’s hard to imagine a better use for tax dollars than properly vetting a potential Supreme Court justice. And if the nation’s coffers are truly so threadbare, perhaps the president would be willing to spare some of the $12 million he’s planning to spend on a self-indulgent military parade (or the $12 billion he’s spending to bail out farmers who theoretically will be hurt by his trade war). Trump could even use his personal wealth to hire some temporary National Archives personnel to accelerate the process as a gesture of good faith.
Grassley and Whelan also argued that seeking all of Kavanaugh’s White House records would break with precedent. They noted that back in 2010, while weighing Obama’s nomination of Elena Kagan to the court, Senate Republicans sought and received documents that covered her tenure in policy posts in the Clinton White House—but only because she hadn’t served as a judge before and therefore had no judicial record to scrutinize. The Republicans did not seek documents from her time in the Obama administration as solicitor general.
“Have in mind that there has never been a practice of insisting on all executive-branch records of a nominee,” Whelan wrote. “If any such practice existed, then the Obama administration would have been obligated to turn over all of Elena Kagan’s records during her year as the Obama administration’s solicitor general—information that would have been much more probative of her thinking on constitutional issues (and much more controversial) than her records from the Clinton White House.”
Fair point. But maybe Kagan and other Supreme Court nominees who work in the executive branch should turn over those documents to Congress as a general rule. In Kagan’s case, her solicitor general records likely would have held limited probative value. She was representing the Obama administration and the federal government as a whole in that position, not herself.
The Senate has good reason to be extra-cautious when it comes to judicial nominees who served in the executive branch, especially those who worked on legal policy matters for the Bush administration. In 2002, Bush nominated Jay Bybee to a lifetime position on the Ninth Circuit Court of Appeals. The Senate approved his confirmation in 2003 by a 74-19 vote. The following year, it became public that during Bybee’s tenure as head of the Justice Department’s Office of Legal Counsel, he had authored one of the post-9/11 torture memos that gave legal cover to U.S. officials who sought to perform it. At one point, he concluded that the federal law criminalizing torture would be unconstitutional “if it impermissibly encroached on the president’s constitutional power to conduct a military campaign.” Bybee’s successor later withdrew and repudiated the memos.
The revelations frustrated Democratic senators who had received vague answers from Bybee on the matter during his confirmation hearing. Senator Patrick Leahy, a former Democratic chair of the Judiciary Committee, said after the memo’s release in 2004, “If [Bybee’s] nomination were up today, knowing now what we weren’t permitted to know then, the Senate—this senator included—might not be so willing to give him the same benefit of the doubt for this lifetime appointment.” If Kavanaugh has any such skeleton in his closet, Senate Democrats want to see it before it’s too late.