September 04, 2018

Of Staff Secretaries and Solicitors General

The Senate Doesn’t Jeopardize Sensitive Deliberations in Document Requests for Supreme Court Nominations

In 2010, Solicitor General Elena Kagan was nominated to the Supreme Court. The Senate Judiciary Committee did not request internal documents from her tenure in that office so as not to jeopardize sensitive and candid deliberations. As then-Ranking Member Jeff Sessions said at Kagan’s confirmation hearing:
 
Well, I would say I have been interested in what might be in those internal documents you were involved in in the Solicitor General’s office, but have refrained from asking for it. But based on that answer, I assume that you would advise other members of the Senate that in the future they should not be demanding such documents of a nominee, absent some special, discrete problem that may justify it in an unusual case. (Hearing Record, page 293)
 
Kagan agreed. And having had no judicial record at the time, those documents could have served to inform senators about her legal thinking and potential jurisprudence. When asked to identify points that might indicate how she would approach her new role as justice, Kagan said:
 
Senator Kohl, I think you can look to my whole life for indications of what kind of a judge or Justice I would be. I think you can certainly look to my tenure as Solicitor General and the way I have tried to approach and handle that responsibility. (Hearing Record, page 89)
 
So it held that the Senate would not seek documents that endanger sensitive deliberation, despite their admitted relevance. For the records from Judge Kavanaugh’s tenure as staff secretary, the same reasoning holds. As Chairman Grassley has said:
 
…these documents are both the least relevant to Judge Kavanaugh’s legal thinking and the most sensitive to the Executive Branch. (Remarks on the Senate floor, 07/24/18)
 
Like Kagan’s solicitor general records, the release of staff secretary documents would pose a risk to arguably more sensitive deliberations at the White House. More importantly, they would be decidedly less revealing about the nominee’s legal thinking—the role is to be an honest broker, not provide legal or policy advice.
 
As other staff secretaries have said:
·       James Cicconi, staff secretary for George H.W. Bush told the White House Transition Project, “I knew that the core function of my job was being the President’s in box and out box…”

·       Todd Stern, staff secretary for Bill Clinton, recently noted that his job was not to influence the president and said, "You’re certainly not trying to put your thumb on the scale between options… The point is to say, 'Here’s the issues, here’s the options, here’s what people think.'"