August 15, 2018

SCOTUS | Grassley: the Committee will have ample information and time to carry out its responsibilities

Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
On the upcoming hearing for Supreme Court nominee Judge Brett Kavanaugh
August 15, 2018
Last week, I announced that the Senate Judiciary Committee will hold a hearing on Judge Kavanaugh’s nomination to the Supreme Court starting on September 4. The hearing will begin 57 days after the President announced Judge Kavanaugh’s nomination—more than a week longer than the period between announcement and hearing for Justices Sotomayor, Kagan, and Gorsuch.
The Senate has already received more documents from Judge Kavanaugh’s time in the Executive Branch than we did for any previous Supreme Court nominee. We have so far received more than 184,000 pages of documents, of which more than 124,000 are currently publicly available.
The team of lawyers who work for the Majority have already reviewed more than 10,000 pages of the 307 judicial opinions that Judge Kavanaugh wrote—along with the hundreds more opinions that he joined—in his twelve years of service on the D.C. Circuit. The team of lawyers who work for the Majority have also already reviewed 110 pages of written answers and over 17,000 pages of materials Judge Kavanaugh submitted to the committee in response to its bipartisan questionnaire—the most robust questionnaire ever submitted to a Supreme Court nominee. And the team of lawyers who work for the Majority have already reviewed every page of the more than 184,000 pages of emails and other records we have received, so far, from Judge Kavanaugh’s time as a government lawyer in the White House and with Judge Starr.
I expect we will receive even more documents tonight or tomorrow and that all remaining documents responsive to our request will be produced next week. We will work to make every unrestricted record publicly available as quickly as possible. As I predicted, this confirmation process is the most transparent ever. We have already received more documents from Judge Kavanaugh’s Executive Branch service than any nominee in history, with many more to come. And senators have more time to review Judge Kavanaugh’s record than they did for the last three Supreme Court nominations.
I am confident that the Committee and the Senate will have ample information and time to carry out their responsibilities.
But some of my colleagues on the other side of the aisle are attempting to manipulate the American people. I just described to you the largest document production in the history of Supreme Court nominations. But guess what the Minority Leader described it as: “unprecedented secrecy.” This argument is ridiculous on its face. And the American people aren’t buying it. I got a lot of questions at my town meetings across Iowa over the last week or so about the Supreme Court, but hardly any mention of this document issue cooked up by Washington insiders.
Let’s not forget how this document issue started. First, liberal dark money groups and their Senate allies announced immediate opposition to Judge Kavanaugh—some even before Judge Kavanaugh was nominated. The minority leader said he would oppose Judge Kavanaugh with everything he’s got.
So, their first tactic was to argue that the Senate shouldn’t confirm anyone during a midterm election year. They attempted to invoke the Biden Rule—which bars confirmation of a Supreme Court justice during a presidential election year—to make this argument. Of course, this was a ludicrous position unsupported by any precedent. Widely rejected by objective observers and fact-checkers, the Minority Leader and his allies abandoned this argument. But they didn’t abandon their goal, which is to stall Judge Kavanaugh’s confirmation until after the midterm elections and hope they reclaim the Senate.
That’s why the Minority Leader refocused his tactics and manufactured a phony controversy regarding Judge Kavanaugh’s White House documents. How do we know it’s phony? On the one hand, the Minority Leader has publicly stated he would oppose Judge Kavanaugh’s nomination with everything he’s got. On the other, he is insisting that the Senate needs millions more pages of documents on top of what we already have in order to make an informed decision.
Indeed, the Senate Democrats demanded the search of every page of every email and every other record from every one of the hundreds of White House staffers who came and went during every one of the eight years of the Bush Administration. In other words, the Senate Democrats demanded the search of every scrap of White House paper for the entire Bush presidency. As I’ve stated repeatedly, I’m not going to put the American taxpayers on the hook for the Senate Democrats’ fishing expedition.
How much more information do the Minority Leader and his outside dark-money allies need if they’ve already made their decision to oppose Judge Kavanaugh? They don’t care about Judge Kavanaugh’s record. They’re already voting “no.” They simply want to bury us in a mountain of paper, so there is no chance that we can hold a confirmation vote on Judge Kavanaugh’s nomination anytime this year.
Let’s not forget that Judge Kavanaugh has a twelve-year judicial track record from his time on the D.C. Circuit. During that time, he authored more than 300 opinions and joined hundreds more. These opinions provide the most relevant information for assessing Judge Kavanaugh’s legal thinking. Back in 2009, my Democratic colleagues were making this same argument with respect to Justice Sotomayor. Of course, they’re flip-flopping now. The current Minority Leader said in 2009 that “everybody knows” a judge’s record on the bench “is the best way to evaluate a nominee.” He said to Justice Sotomayor, “I want to turn to your record on the bench, which I believe is the best way to get a sense of what your record will be on the bench in the future.”
Then-Chairman Leahy said: “We have Judge Sotomayor’s record from the federal bench. That is a public record that we had even before she was designated by the President. Judge Sotomayor’s mainstream record of judicial restraint and modesty is the best indication of her judicial philosophy. We do not have to imagine what kind of a judge she will be because we see what kind of a judge she has been.”
Well, the same logic applies to Judge Kavanaugh’s long judicial track record. Despite this record being more than sufficient to assess how Judge Kavanaugh approaches legal issues, I requested hundreds of thousands of additional pages from his time as a government lawyer in the interest of full transparency. But, even the most transparent confirmation process in history is not enough for those who decided to oppose Judge Kavanaugh before they even saw his record.
The document requests for Justice Kagan’s confirmation provide strong support for how the Judiciary Committee is proceeding now. Then, the Senate requested Justice Kagan’s White House records but not internal documents from the Solicitor General’s office. We refrained out of respect for the sensitivity of internal deliberations in that office. We did so even though these documents would have been extremely helpful to our assessment of Justice Kagan’s views on the law given that she lacked a judicial record. And Justice Kagan herself testified that senators should look at her time as Solicitor General to evaluate her. But we didn’t ask for them.
This precedent supports my decision not to ask for documents from Judge Kavanaugh’s time as White House staff secretary. If internal Solicitor General documents were too sensitive to produce, then documents from Judge Kavanaugh’s time as staff secretary certainly are as well. The staff secretary serves as the inbox and outbox for the President of the United States. These documents include some of the most sensitive documents in all of our government, implicating our national security and the other core duties of the President. These documents are at the heart of executive privilege.
In addition to being the most sensitive documents, they are the least probative of Judge Kavanaugh’s legal thinking. The primary role of the staff secretary is to make sure that President sees advice from a range of policy advisors across the Executive Branch, not provide his own policy or legal advice.
To recap, Judge Kavanaugh wrote more than 300 judicial opinions and joined hundreds more in twelve years on the bench. Justice Kagan, by contrast, had written or joined zero judicial opinions before her nomination. Despite having less need for Judge Kavanaugh’s Executive Branch records—in light of his substantial judicial record—the Senate has already received more such documents than it did for Justice Kagan or any other nominee and will receive many more. In fact, for Judge Kavanaugh, we could receive up to one million pages—which is more than the five prior Supreme Court nominees combined.
Democratic leaders have also tried to argue that Judge Kavanaugh’s White House records are being “cherry-picked” by Bill Burck, who they label as a “partisan lawyer.” I guess they’ve forgotten how the Senate received documents during the last three Supreme Court confirmations. The Senate received documents for Justice Sotomayor’s confirmation after they were reviewed by Leslie Kiernan. She represented Obama campaign manager David Plouffe and former Representative Charlie Rangel and eventually became Deputy White House Counsel in the Obama Administration.
As the Wall Street Journal pointed out in an editorial yesterday, the Senate received documents for Justice Kagan after they were reviewed by Bruce Lindsey. Mr. Lindsey overlapped with Justice Kagan in the White House. He also served as President Clinton’s national campaign director in 1992, as President Clinton’s hyper-partisan senior lawyer and fixer in the White House, and as CEO of the Clinton Foundation for ten years—including when Justice Kagan was nominated. How much more partisan can you get?
Bill Burck is President Bush’s Presidential Records Act representative, like Mr. Lindsey was for President Clinton. Mr. Burck has held this position since 2009. He is a partner at one of the most liberal law firms in America. Mr. Burck also served as President Bush’s Presidential Records Act representative during the Gorsuch confirmation, but Democrats didn’t object to his involvement then. And they didn’t object to Ms. Kiernan’s or Mr. Lindsey’s involvement during the Sotomayor and Kagan nominations. Their objection to Mr. Burck’s role now is another opportunistic attempt to discredit the process and avoid talking about Judge Kavanaugh’s qualifications.
I’d like to correct one additional misconception. The National Archives are not being cut out of this process. Under the Presidential Records Act, President Bush has the right to request his own administration’s documents. He can choose to make a document public or claim that it is protected under executive privilege. That is precisely what he is doing now.
President Bush is providing a valuable public service to the American people at considerable and non-public expense. He is expediting the review process and making sure that the Senate has all the documents it needs to conduct a timely and efficient confirmation process. President Bush and his legal team should be thanked—not scorned—for providing this tremendous service to the American people. Thanks to them, we will have Judge Kavanaugh’s papers in time to hold a confirmation hearing and vote this year, just as the American people expect us to do.
Democratic leaders have played up this phony documents controversy to deflect attention from Judge Kavanaugh’s extraordinary qualifications and sterling reputation as a judge. In his twelve years on the bench, the Supreme Court has on thirteen occasions adopted a legal position from Judge Kavanaugh’s opinions. This is an exemplary track record in the Supreme Court.
Judge Kavanaugh is dedicated to judicial independence. He’s not afraid to tell another branch of government when it has exceeded its lawful authority. At the same time, he has great respect for the separation of powers and will interpret the law as it is written by the people’s representatives in Congress.
I look forward to hearing from Judge Kavanaugh when he appears before the Judiciary Committee on September 4.