FOR IMMEDIATE RELEASE
July 16, 2018
DEMAND JUSTICE, NARAL: DON’T SCHEDULE HEARINGS FOR BRETT KAVANAUGH UNTIL HIS 1M+ PAGES OF DOCUMENTS GET TURNED OVER TO SENATE
WASHINGTON, DC—On Monday, Demand Justice and NARAL Pro-Choice America released a report urging that no confirmation hearing be scheduled for Trump Supreme Court nominee Brett Kavanaugh until more than one million pages of documents from his years as a political lawyer in the George W. Bush administration are disclosed to the Senate.
The documents in question are from Kavanaugh’s work in the White House Counsel’s Office and as Staff Secretary under Bush from 2001-2006. The George W. Bush Presidential Library and Museum identified approximately 429,870 pages and 667,824 electronic files of potentially responsive records that could shed light on Kavanaugh’s role in shaping key Bush administration policies that remain relevant to the issues that he could encounter in the Supreme Court, ranging from abortion to national security.
“Donald Trump has two goals: nominate someone who will gut our most cherished personal rights and freedoms, and try to fool the U.S. Senate by keeping as much evidence about that nominee as secret and hidden as possible,” said Ilyse Hogue, President of NARAL Pro-Choice America. “Nominating Brett Kavanaugh accomplished the first goal, but our elected leaders cannot let Donald Trump fool the U.S. Senate or the American people.”
When Elena Kagan was nominated to the Supreme Court by President Barack Obama, all relevant materials were released prior to the consideration of her nomination. Brett Kavanaugh should not be given a hearing until the Senate has seen every single document it is entitled to see.
“Republicans insisted during Elena Kagan’s confirmation that no hearing should occur until the Senate saw all the documents from her work in the White House. The same standard must now apply to Brett Kavanaugh,” said Brian Fallon, Executive Director of Demand Justice. “Kavanaugh’s materials happen to be voluminous, but that is no excuse to try to plow forward with a hearing before the Senate has had the chance to review these important records. Mitch McConnell went so far as to urge President Trump not to pick Kavanaugh because he was so concerned by his lengthy paper trail, but Trump chose Kavanaugh anyway and so the public has a right to see these materials as part of his confirmation process.”
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No Confirmation Hearing Should Be Scheduled Until More Than 1 Million Pages of Documents From His Bush White House Years Are Turned Over
Before he became a judge, Brett Kavanaugh spent virtually his entire career as a partisan political lawyer. He worked for Ken Starr when Starr investigated President Bill Clinton and then went to the White House shortly after George W. Bush took office, working in the Counsel’s Office and as Staff Secretary until he became a judge. There are more than one million pages of documents from Kavanaugh’s work in the White House that have not been disclosed to the Senate, much less the American people.
These documents could shed valuable light on Kavanaugh’s role in shaping key Bush administration policies on issues from abortion to national security. For instance, while Kavanaugh worked in the White House, the Bush administration signed into law a federal ban on an abortion procedure; banned federal funds from supporting embryonic stem cell research; and reimposed the Global Gag Rule which denies family-planning funds for overseas health centers unless they comply with dangerous restrictions. Additionally, the Bush administration was embroiled in issues related to the War on Terror, including torture, indefinite detention, military commissions, and warrantless wiretapping. Kavanaugh’s potential work on these issues is deeply relevant to the matters he could confront as a Supreme Court justice.
The Senate is entitled to access documents related to Kavanaugh’s work with Starr and in the Bush White House—just as the Senate obtained documents related to Justice Kagan’s work in the Clinton White House and documents related to Justice Gorsuch’s work as a political appointee at the Department of Justice during the George W. Bush administration. Hearings can not be scheduled until the Senate has seen every single document it is entitled to see.
More than 1 million pages of documents related to Kavanaugh’s political work exist and have yet to be disclosed to the Senate or the American public.
Fix the Court, a nonpartisan watchdog group, filed Freedom of Information Act requests last year for the following documents and has not received any yet:
- Brett Kavanaugh’s records from the George W. Bush Presidential Library and Museum, given that Kavanaugh worked for President Bush for five years (2001-2006) and in two different capacities (White House Counsel’s Office and Staff Secretary). The Library identified approximately 429,870 pages and 667,824 electronic files of potentially responsive records and estimated that fulfilling the request could take 20 years to fulfill.
- Brett Kavanaugh’s records from the Office of Independent Counsel Ken Starr, where he was one of the main lawyers. The National Archives and Records Administration estimates that there are 20,000 pages of responsive docs and that fulfilling that request might take five years to fulfill.
- Records from the Department of Justice, including all correspondence between Kavanaugh and the leadership of the Office of Legal Counsel—which was responsible for advising on issues related to enhanced interrogation and other War on Terror issues. No estimate has been given for the number of pages of records that may exist or how long this request may take to fulfill.
The Clinton Library turned over 99% of responsive Kagan documents––170,000 pages.
- Justice Kagan had also worked in a presidential administration—she had worked in the Clinton White House Counsel’s Office and Domestic Policy Council. In response to a bipartisan request from then-Chairman Leahy and then-Ranking Member Sessions, the Clinton Library released more than 170,000 pages of responsive material, including virtually every email sent and received by Justice Kagan while she was at the White House. Reviewing these records and preparing them for release required a grueling 6,000 hours of work by a team of nearly two dozen lawyers.
- President Obama did not assert executive privilegeover a single document.
- Even the small number of documents on which President Clinton asserted statutory restrictions against public release were provided to the Senate Judiciary Committee on a “Committee Confidential” basis.
- Only 1,600 pages of documents—less than 1% of the total number of documents—were withheld, and only on personal privacy grounds.
- The Senate should expect similar disclosure for Judge Kavanaugh. And of course, email use became even more prevalent between Kagan’s White House service and Kavanaugh’s, so it would make sense that there are an exponentially greater number of relevant documents for Kavanaugh.
Senate Republicans said Kagan should not have a hearing until all of her Clinton White House materials were reviewed.
- Following President Obama’s nomination of Kagan, top Republicans on the Senate Judiciary Committee insisted that the full records from her time in the Clinton White House be made available and that no hearings occur until senators had ample time to review the materials:
- Jeff Sessions, 5/24/2010: “The public record of a nominee to such a lifetime position as Justice on the Supreme Court is of such importance that we cannot go forward without these documents.”
- Jeff Sessions, 6/1/2010: “I believe that the hearings should not be conducted until we’ve had an opportunity to examine the documents in advance – not just have them in our hands.”
- Jeff Sessions, 6/21/2010: Asked if Republicans would boycott the hearings if they did not get to review the documents, Sessions said: “If we feel like we can’t go forward with the hearings … because we don’t have sufficient documents, then yes, we may feel compelled to do whatever it takes to try to insist that the process be done right.”
- Chuck Grassley, 6/15/2010: “In order for the Senate to fulfill its constitutional responsibility of advise 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. I share the concerns of the Judiciary Committee ranking member, Senator Sessions, that Solicitor Kagan’s documents will not be fully produced in time for the committee to conduct a thorough review of the nominee’s record.”
- Jon Kyl, 5/11/2010: “We need to understand what it was that she was involved in, whether there were controversies surrounding that. And if that means that there are documents we need to see, we should see them. We are determined to understand what her role was in the Clinton administration as it pertains to her qualifications to serve as justice.”
This time around, Senate Republicans have privately acknowledged the fairness of demands for Kavanaugh’s documents—but have not yet committed to basing a hearing date around the production of these documents.
- Senate Majority Leader Mitch McConnell has privately acknowledged Senate Democrats’ right to seek and review materials from Kavanaugh’s tenure on the Starr investigation and in the Bush White House. In fact, McConnell cited the burdenof reviewing all of Kavanaugh’s records as a reason for the Trump administration to pick another nominee entirely.
- This week, Judiciary Committee Chairman Chuck Grassley acknowledged to reporters that the massive document review could make a hearing on Kavanaugh’s nomination difficult to schedule before Labor Day–but then waffled. “Ask me in a couple weeks, I’ll have a better feel of it,” Grassley said, in what the Washington Post termed a “backtrack.”