Democrats Denounce Kavanaugh Process They Approved for Obama and Kagan

Supreme Court nominee Judge Brett Kavanaugh (2nd R) waits for a meeting with U.S. Sen. Dean Heller (R-NV) on Capitol Hill July 18, 2018 in Washington, DC. Kavanaugh is meeting with members of the Senate after U.S. President Donald Trump nominated him to succeed retiring Supreme Court Associate Justice Anthony …
Alex Wong/Getty

Democrats are protesting Sen. Chuck Grassley’s beginning Judge Brett Kavanaugh’s confirmation hearing for the Supreme Court and the process for getting Kavanaugh documents, but recent history shows they have nothing to complain about, because they approved the very same process for the most recent nominee from a Democratic president.

As chairman of the Senate Judiciary Committee, Grassley (R-IA) decided to go the extra mile to accommodate Democratic senators. He will begin Kavanaugh’s hearing 57 days after President Trump nominated him, as compared to 48, 49, and 48 days for Justices Sotomayor, Kagan, and Gorsuch respectively—the three most recent nominees from both parties.

Grassley also agreed to provide 900,000 pages of documents involving Kavanaugh’s government service, more than any nominee in history, and more than four times the number provided for recent nominees of either party—including Kagan (who had only 172,000 pages).

Sen. Dianne Feinstein (D-CA) considers that all-time high of 900,000 documents on President Trump’s nominee to be insufficient, and so is requesting numerous additional documents from the National Archives. But as The Hill’s Jordain Carney reported, Archivist David Ferriero informed Feinstein that both the Justice Department and the Archives’ general counsel, Gary Stern, have advised him that the Presidential Records Act authorizes only committee chairmen to request documents, not individual senators.

Feinstein is crying foul at the archivist’s decision, despite the fact that Ferriero was appointed by President Obama.

The Archives are not able to complete Grassley’s document request until late October due to its enormous size, but senators are determined to have Kavanaugh confirmed in time for the Court to start its annual term on October 1, so that the Court will not be short-staffed with an even number of justices that could result in cases unnecessarily wasted on 4-4 tie votes.

(These efforts are not to be confused with the separate effort by Sen. Richard Blumenthal (D-CT), who is leading committee Democrats in filing a Freedom of Information Act (FOIA) request for additional documents.)

But Republicans have actually stepped up to the plate to help. Hundreds of thousands of the documents from the National Archives are also available through other sources, like President George W. Bush’s presidential library and the Office of George W. Bush.

The Presidential Records Act (PRA) is the federal law that allows presidents to refuse to release many documents from an administration until 12 years after that president leaves office, after which many documents can still be kept private. The PRA also empowers a former presidents to designate someone to act for that president in deciding which documents he is willing to make public during that 12-year window.

The man Bush designated under the PRA before the 43rd president left office in 2009, former White House Deputy Counsel William Burck, is leading a team of 50 lawyers who are reviewing all the document requests regarding Kavanaugh. Between Burck and the Archives, over 200,000 pages of documents have already been given to the committee – which is already more than the total number for any Supreme Court nominee in over 200 years.

Democrats object to the process, arguing that Burck’s role as Kavanaugh’s former boss and a presidential appointee taints his document releases. Senate Democratic Leader Chuck Schumer (D-NY) calls Burck a “massively conflicted Republican lawyer … cherry-picking what documents the Senate Judiciary Committee can see.”

However, there are clear parallels between the process being used for Kavanaugh and the one used for the most recent nominee from a Democratic president: Obama’s nominee Elena Kagan.

Justice Kagan served in the White House for four years under President Bill Clinton, first as associate White House counsel (like Kavanaugh) and later as deputy director of the White House Domestic Policy Council.

Bruce Lindsey was deputy White House counsel under Clinton, just like Burck was for Bush. Lindsey led the review of Kagan’s documents for release to the Senate for her confirmation. And Lindsey had the right to assert objections to any documents that Clinton may not want released.

Some of Kagan’s documents concerned whether a president is subject to being sued or subject to legal process – which would include depositions and being forced to testify – while still in office. In Kagan’s case, those documents discussed Paula Jones’ lawsuit against Clinton for sexual misconduct. Kagan’s memos expressed her views on which arguments the administration should make before the Supreme Court on that matter. One of those memos was from Kagan to Lindsey, the former boss who was later determining which Kagan documents to release.

Does all that sound familiar?

It is equally important to note the differences between Burck and Lindsey. First, Burck has actually filled this role before. He served as Bush’s PRA representative when Neil Gorsuch was nominated to the Supreme Court, because Gorsuch, too, was a political appointee in the Bush administration.

An even more important difference is that Lindsey was one of Clinton’s closest advisers, as the New York Times reported. If Burck is disqualified, then Lindsey’s much closer relationship with Clinton would all the more disqualify him from playing that role in Kagan’s hearings. But Democrats did not complain about Lindsey then, so how can they complain about Burck now?

In fact, Time magazine dubbed Lindsey “Mr. Fix-It” for Clinton, an “old pal” from before the White House. Some insiders referred to Lindsey as Clinton’s “Enforcer” or “Consigliere,” Sicilian terms referring to top mafia operators who take care of sensitive matters for a mafia crime boss. No one alleges that Burck has that kind of long-term, intimate, cozy relationship with Bush.

Lindsey also did not publicly comment on documents regarding Kagan, and refused Republican requests to expedite the release of documents. To the contrary, many Clinton documents were not released despite Republican insistence that they be produced. Those documents did not become public until 2014, almost two years after the 12-year restriction authorized by the PRA expired—and four years after Kagan was confirmed to a lifetime appointment on the Supreme Court.

Republicans are also quick to point out that most of these Kavanaugh documents are of limited relevance to determining what sort of justice he will be. Kagan was never a judge, so had authored no court opinions. The best window into Kavanaugh’s judicial philosophy are the 4,800 pages of his 307 published judicial opinions as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, along with the 6,400 pages of judicial opinions written by other judges, but that Kavanaugh joined, for a total of 11,200 pages of court decisions.

Senate Democrats have not explained how the process was acceptable for Democrats then, but unacceptable for Democrats now. The only differences are the political party of the team following that process, and the fact that they already have a mountain of pages of Kavanaugh’s court opinions on which to evaluate him.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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