A good judge is more than someone who simply
understands the law. The job requires a keen intellect and an ability to
appreciate multiple sides of complex issues. It requires the right temperament
— a dedication to fairness and a commitment to leaving personal preferences and
politics out of the courthouse. And it requires judicial modesty — an
understanding that a judge’s job is to interpret and apply the law and the
Constitution based on the facts at hand, not to make policy from the bench.
As the Senate Judiciary Committee continues to
evaluate Judge Brett M. Kavanaugh’s fitness for the Supreme Court, these are
some of the attributes we will explore.
The best way to determine how a nominee would serve
as a justice is to examine how he has served as a judge. Kavanaugh has spent
the past 12 years on the powerful U.S. Court of Appeals for the
District of Columbia Circuit. During that time, he has written more than 300
opinions and joined hundreds more. These opinions offer ample insight into his
legal acumen, temperament and judicial approach.
The committee doesn’t always have the luxury of an
expansive judicial record when evaluating nominees. Justice Elena Kagan had no
judicial record when she was nominated to the Supreme Court in 2010. The
committee had to rely on records from her executive-branch service to gain
insight into her legal thinking.
When asked at her confirmation hearing how the
Senate should evaluate her given her bare judicial record, Kagan said
“You can certainly look to my tenure as solicitor general and the way I have
tried to approach and handle that responsibility.”
Nevertheless, Republicans and Democrats on the
committee agreed not to seek records from her time as solicitor general, given
their sensitive nature and the fact that disclosure could undermine the candor
of internal deliberations.
Today, we have a nominee with an extensive judicial
record and legal writings that provide far more insight into his judicial
philosophy than any executive-branch record would. On top of that, the
Judiciary Committee has requested up to 1 million pages of documents from his
time as a government lawyer. All told, the volume of executive-branch documents
we review could be more than the last five nominees combined. This is in
addition to the more than 17,000 pages of materials that Kavanaugh submitted in
response to the most thorough and robust committee questionnaire ever required
of a Supreme Court nominee.
But Democratic leaders are arguing that this isn’t
Though many of them have already voiced their
opposition to the nominee, they’re demanding to review emails from any
White House aide that merely mention Kavanaugh’s name, including records
he’s never seen. In my 14 previous Supreme Court confirmations, we’ve never
reviewed such material.
Democrats are also demanding to see
Kavanaugh’s records as White House staff secretary, pointing to his
comments that it was a formative experience. I’m sure skills Kavanaugh
sharpened in that post have proven useful on the bench. It required distilling
complex material into concise memos for the president, and it required being an
honest broker when relaying competing arguments from advisers across the
But these documents are not particularly revealing
of Kavanaugh’s legal thinking. This is especially true in light of the much
more relevant material from his judicial record, his time as an
executive-branch lawyer and the questionnaire.
Furthermore, his staff-secretary records also
include some of the executive branch’s most sensitive documents. The staff
secretary is essentially the president’s inbox and outbox, handling materials
prepared for the president by numerous policy advisers across the
If records of internal communications in the
solicitor general’s office were too sensitive to share with Congress during
Kagan’s nomination, documents from the staff secretary’s office should be even
more closely guarded.
Democratic leaders are keen to call for following
the same document review for Kavanaugh as we did for Kagan. That means that we
don’t get the materials simply mentioning the nominee’s name, and we don’t get
records that jeopardize the candor of internal administrative deliberations.
That is precisely what my document request accomplishes.
Given the political left’s broad opposition to
Kavanaugh, it is clear that their document demands are nothing more than an
attempt at a taxpayer-funded fishing expedition. The Democratic leadership’s
true goal is to delay the Senate’s work and re-litigate the George W. Bush
presidency instead of evaluating Kavanaugh’s credentials.
For my part, I’m going to focus on conducting the
most thorough and transparent confirmation process of any Supreme Court nominee
to date. I invite my Democratic colleagues to set aside election-year posturing
and join me in this process.
Chuck Grassley, an Iowa Republican, is
chair of the Senate Judiciary Committee.