On July 27, in his request for Brett Kavanaugh’s White House records, Senate Judiciary Chairman Chuck Grassley pointedly omitted records from the three critically important years when Kavanaugh worked as staff secretary in the George W. Bush White House. In doing so, and in putting a partisan Republican lawyer in charge of the screening process for the limited documents that are being provided, he’s circumventing the traditional bipartisan vetting process—and severely corrupting the procedure to confirm nominees to our country’s highest Court.
The long-established vetting process for Supreme Court nominees normally includes a thorough review of all relevant documents from the nominee’s career to determine their qualifications, including evidence of whether they would be fair-minded constitutionalists if confirmed. But rather than follow those norms, which would require them to wait at least until the end of October—the earliest the National Archives can provide all the documents that were the subject of the Republicans’ limited request—Grassley has drummed up a corrupt alternative to expedite the process ahead of the November midterms and try to confirm Kavanaugh at a breakneck speed.
How? Several ways. First, he refuses to even ask for records from Kavanaugh’s three years as staff secretary and assistant to the President–years that Kavanaugh himself considers among his most important. Second, rather than relying on the nonpartisan National Archives to screen records as has occurred with past nominations, he is deploying longtime GOP political operative Bill Burck, the lawyer who served as Kavanaugh’s assistant in the White House—and who currently represents President George W. Bush, Trump’s White House counsel Don McGahn, former Trump administration officials Steve Bannon and Reince Priebus, and conservative Ninth Circuit ex-judge and serial harasser Alex Kozinski—to unilaterally review and vet the portion of Kavanaugh’s White House record that Grassley has requested.
Why is this process corrupt? Clearly, Burck is biased in Kavanaugh’s favor, yet Grassley and the GOP expect the American public to place their trust in his discretion to judge what records are pertinent to an inquiry into Kavanaugh’s fitness for a lifetime position on the Court. Their tactic to request only a small portion of Kavanaugh’s White House record is dishonest in itself, but deciding on their own to empower partisan Burck to review the remaining part of Kavanaugh’s records instead of the nonpartisan National Archives is an unprecedented level of obstruction that undermines each senator’s ability to fulfill their constitutional responsibility of advice and consent.
Their willingness to be so openly corrupt is astonishing.
During Elena Kagan’s confirmation process in 2010, Senate Republicans including Grassley refused to schedule a hearing until all emails from her time in the Clinton White House were turned over—some even threatened to boycott Kagan’s hearing if those documents were not provided. Grassley insisted, “In order for the Senate to fulfill its constitutional responsibility of advice and consent, we must get all of her documents from the Clinton Library and have enough time to analyze them so we can determine whether she should be a justice.”
Her full record was produced with bipartisan support, but now Republicans are abandoning those terms and withholding three of five years’ worth of Kavanaugh’s White House records. On top of that, they’ve chosen a biased partisan operative with ties to both the Trump and Bush White House to decide what Congress—and the American people— are allowed to see. Republicans’ perversion of the traditional vetting process is nothing short of corruption that undermines the foundation of our democracy.
When asked for his qualifications for the D.C. Circuit, Kavanaugh stressed his time as staff secretary. He has noted that the “three years as staff secretary for President George W. Bush … were the most interesting and informative for [him].” He also underscored the substantive work he did as staff secretary, saying, “I helped out [with legislation], whether the subject was terrorism insurance or Medicare prescription drug coverage. I spent a good deal of time on Capitol Hill … working on legislation…I worked on drafting and revising executive orders.”
Kavanaugh has even spoken about the importance of reviewing a judicial nominee’s record including precisely the kinds of experiences the documents in question would illuminate, saying, “And I think that’s done through an assessment of going back, in my case, 16 years of my career and looking at the kinds of things I’ve done in the staff secretary’s office.”
So Kavanaugh is on record emphasizing how formative his tenure in the White House was, and Grassley is on record stressing the importance of a full and thorough review of a Supreme Court justice nominee’s record. So why are they insisting upon such an opaque process now? The level of dishonesty is stunning. Not only are they corrupting a necessary and long-established democratic process, they’re corrupting the systems and standards that underpin our democracy.
To add insult to injury, Grassley has announced that Kavanaugh’s hearings will begin on September 4—in just three short weeks—even though Burck has not yet finished culling the records and deciding which will be provided to the Committee.
Why the rush to judgment? And what are they trying to hide? It’s impossible to know with certainty, but Kavanaugh has already admitted to working with Bush on controversial executive orders. A full review of his record may well provide key insights into his views on issues like the mass surveillance of citizens, the use of torture, the proposed privatization of social security, Medicaid block grants, and a slew of assaults on civil liberties.
But rather than allow the Senate access to those documents, Grassley and Republicans on the Judiciary Committee are dangerously changing the rules once again, further threatening the well-being of our democracy. Trump and his administration have already abandoned basic rules of ethics and fair play too many times to count. For the sake of our country, we must insist upon a full review of Kavanaugh’s complete White House record.