When President Barack Obama nominated Judge Merrick Garland to the Supreme Court eight months before the 2016 election, Republicans insisted that the Senate must wait until a new president was sworn in before lawmakers could reasonably consider a new pick for the high court. Now that a Republican sits in the White House, they have flipped 180 degrees, rushing to confirm Judge Brett Kavanaugh before Americans elect a new Senate in November.
That is the context in which to consider the seemingly dry procedural spat between Republicans and Democrats on the Senate Judiciary Committee. Kavanaugh’s long record in public service, including his time in the George W. Bush White House and his more than a decade on one of the country’s most powerful appeals courts, has produced a voluminous documentary record. — millions of reviewable pages, depending on which files one considers germane.
Democrats want as many documents as possible to prepare their cross-examination of Kavanaugh. Republicans do not want a painstaking document review to upset their confirmation schedule, with Judiciary Committee hearings set to start in September and a confirmation vote in early October.
There is a continuing battle over whether Kavanaugh’s papers from his tenure as Bush’s staff secretary should be handed over, but both sides agree that senators should review the files from Kavanaugh’s service in the White House Counsel’s Office.
Yet there are so many of those that the National Archives, the usual arbiter of which presidential records get turned over to the Senate and which remain sealed from the committee, has said it would take its staff until the end of October to process them. That would upset Republicans’ timeline to confirm Kavanaugh before Election Day.
So lawyers acting on Bush’s behalf have taken over the document review with an eye toward efficiency, determining quickly which records are presidential, and therefore due to the committee, and which are personal, and therefore not sent to lawmakers. This unprecedented sidestepping of the National Archives process by a team associated with Kavanaugh’s former boss and political patron has Democrats understandably upset.
Sen. Charles Grassley, R-Iowa, argues that the most important documents — Kavanaugh’s 300-plus decisions as an appeals court judge — are already public. He has also asked the National Archives to prioritize reviewing materials the Bush team has said should remain sealed, which would reduce the opportunity for the Bush team to keep embarrassing but relevant records secret.
That helps but does not fully address the problem. Even when the committee gets the right records, some arrive at the committee for senators’ eyes only. The National Archives must be the arbiter not only of which documents are sent to the committee but also of the terms on which they are turned over. That might mean Republicans have to adjust their confirmation schedule. But there is no compelling public-interest argument to hold a vote by early October.
FROM AN EDITORIAL IN THE WASHINGTON POST