The Senate is now considering President Donald Trump’s nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court. Whoever replaces Justice Kennedy, the deciding vote in so many fundamental cases, the trajectory of the Court for a generation is at stake. More immediately, the Kavanaugh nomination presents stark questions about the Court’s looming role in fundamental rule-of-law questions that could come to a head as the president continues to attack federal law enforcement while his lawyers construct a defense that would put the president above the law. These are questions less about political party than presidential power, checks and balances, and the separation of powers.
Given these stakes, it is ever more vital to evaluate the claim that the procedures that are being adopted to push Judge Kavanaugh through to a vote run contrary to constitutional and democratic norms. That evaluation requires a detailed and fair-minded understanding of the rationales being offered for withholding information from the public and the Senate about Judge Kavanaugh’s time in government, and the executive branch interests at stake. It is also shortsighted given the likelihood that roles will eventually be reversed, with a Democratic President and Democratic-controlled Senate.
Beyond the pressing issues of substance, this confirmation process has been awful and a regrettable stain on the legacy of Sen. Charles Grassley (R-Iowa). To be sure, Democrats have large political incentives to seize on the White House’s and Sen. Grassley’s procedural monkey business in an effort to slow down Judge Kavanaugh’s confirmation. At the same time, after the Senate Republicans refused to grant the courtesy of a hearing for President Barack Obama’s nominee for a vacant Supreme Court seat, Democrats are right to decry the further institutional damage to the Senate’s constitutional duty to provide advice and consent.
Sen. Grassley, as Chairman of the Senate Judiciary Committee, has run a process dictated by the political calendar and raw political power instead of one designed to provide the information necessary for sober advice and consent and a meaningful public conversation. The Trump administration and President George W. Bush’s legal archives representatives, in league with Chairman Grassley, have withheld hundreds of thousands of documents from the committee by artificially narrowing the universe of relevant documents and broadly asserting executive privilege. As a result, Senators do not have access to huge swaths of documents reflecting Judge Kavanaugh’s service in the White House under President Bush.
Late night document dumps and untested privilege claims have become the coin of the realm.
On the eve of Judge Kavanaugh’s first day of hearings, President Bush’s lead lawyer Bill Burck produced some 42,000 pages of documents from Judge Kavanaugh’s time in the White House Counsel’s Office. That eleventh-hour dump followed Burck’s document production on the Friday night going into Labor Day weekend. It has been enough to make even a practitioner of the dark arts blush. In what has been amusingly referred to as the Friday Night Document Massacre, Burck’s cover letter provided a series of rationales for withholding an astonishing number and percentage of documents that would inform Senators about Judge Kavanaugh’s fitness for this lifetime appointment.
I spent several years in a similar role as Vice President Gore’s designated archives representative. Like Burck, I reviewed Gore records for responsiveness to subpoenas or congressional requests as well as potential executive privilege claims after he left office. I have also had some experience with last minute document production shenanigans from Burck (who is a very capable lawyer to whom I have referred potential clients). Here is how his letter breaks down the “great winnowing” of documents.
Burck previews four categories of withheld documents: (1) duplicates, (2) personal documents not covered by the Presidential Records Act, (3) “presidential records that fell outside the time of Judge Kavanaugh’s service in the White House Counsel’s Office,” and (4) “presidential records protected by constitutional privilege.”
The first two categories are fairly straightforward and do not require much comment, although I would note that back in my day “personal” was the designation used by the National Archives and Records Administration (NARA) for political and campaign records in addition to, say, a grocery list. To the extent that Senators wanted to review Judge Kavanaugh’s role in the Bush political operation, this letter is obliquely informing the reader those documents won’t be in this production.
The third category is a major point of contention in the Judge Kavanaugh confirmation fight. That language informs the astute reader that Judge Kavanaugh’s time as White House Staff Secretary has been excluded. That is an incredibly important and senior West Wing job, and Judge Kavanaugh has described his years as White House Staff Secretary as the “most interesting and in many ways among the most instructive” to his experience as a judge. On one hand, I am not persuaded that the nomination of Judge Kavanaugh—as crucial as it is—would entitle the Senate free range over every document President Bush’s Staff Secretary handled. On the other hand, those Staff Secretary documents are sure to contain information core to the Senate’s constitutional interests in his qualifications for the Supreme Court. Here, that exception to this document production threatens to swallow the broader document disclosure enterprise.
The fourth category is executive privilege. According to Burck, the White House made the final privilege calls: “The White House, after consultation with the Department of Justice, has directed that we not provide these documents for this reason.” The documents withheld on privilege grounds contains upwards of 100,000 pages of material. That is a large number.
It is also contrary to very recent precedent: President Obama overcame any executive privilege concerns with respect to documents related to Elena Kagan’s service in White House Counsel’s Office under President Bill Clinton and as Solicitor General under President Obama. Executive branch confidentiality interests dissipate over time. They were certainly more acute in the Kagan context—documents involving the sitting president’s Solicitor General—than those of Judge Kavanaugh’s service over a decade ago.
But neither the extraordinary breadth of the Kavanaugh-related privilege claims nor the departure from recent precedent resolve whether there is merit to the claims. That requires a document-by-document analysis. As I have argued at length in a law review article, the winner of a tussle between Congress and the White House over claims of privilege is a dynamic function of legal merit and the relative political leverage related to that particular issue at that particular time.
For these hearings, we do not have a fulsome assessment of the legal merit, and the Senate appears poised to surrender—without even a fight—its leverage to get answers. What would a genuine process look like? Assessing the legal merit would require the Senate to scrutinize the asserted privileges by demanding document-level justifications in a privilege log. Further, the Senate’s leverage to pry loose documents claimed to be privileged is at its apex when the President is motivated is motivated to get someone confirmed. One need look no further than the sensitive documents related to the Benghazi attack that President Obama provided as the price of John Brennan’s confirmation as CIA director or the bipartisan demand that the Obama administration produce the OLC opinion drafted by David Barron outlining the legal rationale for targeting Anwar al-Awlaki with a drone strike in connection with his confirmation to be a judge on the First Circuit.
Finally, we don’t have much information about the 42,390 pages Burck produced after his August 31st letter and on the eve of the hearings. Based on the Washington Post report: “No information was released on the subject matter of the documents, and Bush’s lawyer asked that they be kept from the public, made available only to committee members and staff.”
I am not here to argue that the Kavanaugh-related claims of privilege are bogus, or that executive branch concerns about a Senate free-for-all on President Bush’s Oval Office document manager’s records are without merit. But the Senate should be fulfilling its advice and consent obligations under the Constitution. To do so, it needs to clarify its chief information interests in Kavanaugh’s record while pressing the executive branch to justify its blanket refusals and privilege claims.
An orderly accommodation process to evaluate Judge Kavanaugh’s record would take time. Unfortunately, the political calendar, rather than regular order, is in the driver’s seat.
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