SCOTUS Delay Tactics: Judge Kavanaugh and Democrat Leaders’ Document Demands
Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Judge Kavanaugh and Democrat Leaders’ Document Demands
July 24, 2018
I come to the floor today to respond to remarks made this morning by the Minority Leader. And to add some additional context that he left out.
He spoke on the nomination of Judge Kavanaugh to the Supreme Court. Unfortunately, he didn’t come to the floor to talk about the judge’s excellent qualifications, his well-regarded temperament or judicial philosophy. He didn’t come to the floor to announce that he would finally extend the courtesy of a meeting to the Judge, which is customary in this body.
He came to speak about what he thinks will satisfy left-wing outside groups. He demands that I sign a letter that would put the American taxpayers on the hook for a Democratic fishing expedition. I’m not going to do that.
Now, I agree that we should have a thorough vetting process for the nominee. And that we should review materials that would reveal Judge Kavanaugh’s legal thinking. That’s our job. We’re not a rubber stamp.
Fortunately, we have immediate access to the most valuable documents out there that reveal Judge Kavanaugh’s legal thinking. We have access to the more than 300 opinions Judge Kavanaugh authored in his 12 years on the D.C. Circuit, as well as the hundreds more opinions he joined. In these opinions, he addressed some of the most significant legal issues of the past decade from the second most powerful court in the country.
This morning, the Minority Leader brought up a statement I made in 2010 in connection with Justice Kagan’s Supreme Court nomination. At that time, I was interested in reviewing documents from her time in the Clinton administration.
What the Minority Leader neglects to mention is, unlike Judge Kavanaugh, Justice Kagan hadn’t served as a judge before being nominated to the Supreme Court. Other than her materials she submitted as part of the Senate Judiciary Questionnaire for her nomination, her White House Counsel’s Office and Domestic Policy Council documents among the only categories that could shed light on her legal thinking.
Justice Kagan had written or joined a grand total of zero judicial opinions before her nomination. In order to carry out our ‘advise and consent’ responsibility as senators, we needed to better understand her legal thinking and potential jurisprudence.
Judge Kavanaugh, by contrast, has authored over 300 judicial opinions in his 12 years on the bench. Over three hundred. That doesn’t include the hundreds of other decisions where he joined an opinion or order. When you add those to the mix, that’s thousands of pages of judicial writing that the American people have access to at this exact moment.
Justice Kagan, of course, had zero pages of judicial opinions. This is in addition to the 6,168 pages of records Judge Kavanaugh just included in his response to the Senate Judiciary Questionnaire. Despite the fact that Judge Kavanaugh’s judicial record is much more substantial than Justice Kagan’s was, I agree that we should still ask the White House for documents pertaining to Judge Kavanaugh’s time in the White House Counsel’s Office.
My Democratic colleagues say they want the White House records. Well, I’m pleased to let them know that, in the coming weeks, the Senate will receive what will likely be the largest document production in history for a Supreme Court nomination.
I expect that the Senate could receive up to a million pages of documents related to Judge Kavanaugh’s time in the White House Counsel’s Office. We will also see the White House nominations file for Judge Kavanaugh’s 2006 nomination to the D.C. Circuit, along with records from Judge Kavanaugh’s time in the Office of the Independent Counsel. By comparison, we received less than 180,000 pages for Justice Kagan’s time in two White House offices.
Let’s recap: We have more than 300 of Judge Kavanaugh’s actual judicial opinions to Justice Kagan’s zero. We could have up to five-times as many pages from his time in the White House than we got from Justice Kagan. And we will have those documents despite the fact that they’re less necessary now than they were for Justice Kagan. In short, there will be much more transparency in this Supreme Court confirmation process than ever before.
Now, I’m ready to send a letter to the National Archives requesting relevant White House Counsel documents. I’d like to do this with the Ranking Member, but unfortunately she has declined this request. This is unfortunate. Both sides agree the White House Counsel documents are relevant. I’d like to get them over here as quickly as possible so we can begin reviewing them. But, as I’ve noted, Democratic leadership has already decided to oppose Judge Kavanaugh’s confirmation. They’d like to slow down the process as much as possible. I think that explains why the Ranking Member won’t sign a letter requesting documents that both sides want.
I’ve heard that some of my Democratic colleagues would like to request all of Judge Kavanaugh’s records from his time as White House Staff Secretary. But these documents are both the least relevant to Judge Kavanaugh’s legal thinking and the most sensitive to the Executive Branch. The Staff Secretary is the inbox and outbox to the Oval Office. Passing through the Staff Secretary’s office are a wide range of communications: from requests for flying the flag at half-mast to the daily lunch menu to draft speeches to sensitive national security papers.
The Staff Secretary’s primary charge is not to provide his own substantive work product. The Staff Secretary makes sure the President sees memos and policy papers produced by other offices in the White House. It’s an important job. It requires someone who is smart, hardworking, and talented. But the documents passing through Judge Kavanaugh’s office while he was Staff Secretary are not particularly relevant to his legal thinking. It’s like saying the Senate Clerk—someone who has a difficult and demanding job—is responsible for all the positions taken by each of the Senate offices. It’s absurd.
The Senate should focus its efforts on reviewing his tens of thousands of pages of judicial opinions and other legal writings. Not only would a broad review of Staff Secretary documents be a waste of time but also a waste of taxpayer dollars. Moreover, Staff Secretary documents contain some of the most sensitive information and advice that went directly to President Bush from a range of policy advisors.
Back in 2010, both Democrats and Republicans agreed that Justice Kagan shouldn’t produce internal communications while she was Solicitor General because of their sensitivity. If we’re going to talk about a “Kagan Standard,” then we need to talk about taking sensitive communications off the table. That’s what all sides agreed to in 2010 and what I’ll insist on now.
So I appreciate the Minority Leader’s effort to ensure some transparency and thoroughness. But let’s get down to brass tacks: I don’t think the Minority Leader actually wants to read the millions of pages that crossed Judge Kavanaugh’s desk in 2004. He’s said he’d fight this nomination with everything he’s got. And this bloated document request is part of that fight. This is not about anything other than obstruction—to bury us in millions and millions of pages of paper, so we cannot have a confirmation vote on Judge Kavanaugh this year.
Liberal, dark-money outside groups want to drag this confirmation out to the end of time. I won’t let them. This confirmation process should focus on Judge Kavanaugh’s qualifications, not become a taxpayer-funded fishing expedition.