WASHINGTON – The first documents from Supreme Court nominee Brett Kavanaugh’s time in George W. Bush’s White House were released Thursday as the Senate begins to review the judge’s unusually lengthy public record for confirmation hearings this fall.
The 5,700 pages from Kavanaugh’s time in the White House counsel’s office, a slim fraction of those available, were posted on the Senate Judiciary Committee’s website after being compiled by a lawyer representing the former president as part of the GOP’s expedited review process.
But Democrats and others scrutinizing President Donald Trump’s nominee quickly cried foul, saying Republicans are “cherry-picking” from the initial cache of 125,000 Bush documents and skirting traditional procedures.
Kavanaugh’s five years working for Bush, as a White House counsel and the staff secretary, are the subject of a fierce dispute between Senate Republicans and Democrats about the scope of documents being made available. The battle over the paper trail has come to dominate the debate over confirming the 53-year-old appellate judge to replace retiring Justice Anthony Kennedy.
The first download of thousands of papers Thursday is being pored over by activists and media organizations for insight into Kavanaugh’s legal thinking. But it’s unclear how revealing the papers will be. One of the initial pages was a discussion of lunch plans.
The records cast light on Kavanaugh’s role when he served in the White House counsel’s office. Documents regarding the selection of judicial nominees show he took an interest in news and editorial coverage of Democratic resistance to some of Bush’s early nominees to appellate judgeships.
“This was great,” Kavanaugh wrote in a July 8, 2001, email that included a copy of a Washington Post column by Benjamin Wittes, then a member of the editorial board, making the case that “the ideological stakes in the appointment of lower court judges should not be overstated.” Wittes has emerged as a prominent Trump critic.
Another email carried the heading, “Good editorial in Chicago Tribune,” and included a piece calling on the Senate to act on Bush’s judicial nominations “without undue delay.”
One topic Democrats have been particularly interested in reviewing has been the Bush-era detention and interrogation of terrorism suspects. Kavanaugh testified at his appeals court confirmation hearing in 2006 that he “was not involved and am not involved in the questions about the rules governing detention of combatants.”
Among the emails released Thursday was one from November 19, 2001, in which he said he would be “happy to help” in preparing then-Attorney General John Ashcroft to respond to questions about a Justice Department policy that allowed investigators to monitor phone calls and mail between some terrorist suspects and their defense lawyers without a court order.
A week later, the Justice Department provided Kavanaugh information about the monitoring in which it said that 13 inmates – none related to the investigation of the Sept. 11 attacks – were having their conversations with lawyers listened to.
The email was written before the administration began detaining people at the U.S. Navy base at Guantanamo Bay, Cuba. But it is sure to fuel Democratic suspicions that he was more deeply involved in terror policy that he let on during his 2006 hearing.
The records also contain fleeting, and decidedly tame, glimpses of the budding relationship between Kavanaugh and his future wife, Ashley Estes, who was serving as a secretary to the president. Kavanaugh has said their first date was on the night before the September 11 attacks.
Estes asked Kavanaugh in an email on March 27, 2002, “what time do you get off today and are you up for dinner, etc. or no?” Kavanaugh replied a minute later, “yes on dinner; not sure on time off, but should be 7:30ish, maybe earlier.”
Kavanaugh’s extensive time in public service means there’s a long, voluminous record of documents spanning his time at the Bush White House, his work on Kenneth Starr’s team investigating President Bill Clinton and his judicial career.
The National Archives and Records Administration is screening about
1 million pages related to Kavanaugh’s time in the White House to make sure none of the material is subject to executive privilege under the Presidential Records Act. It says the review will not be completed until the end of October.
Once Kavanaugh became the nominee, Senate Republicans launched a separate operation to more quickly start obtaining the White House documents directly from Bush’s team.
Sen. Judiciary Committee Chairman Chuck Grassley, R-Iowa, has promised the most transparent process yet. Already, the panel has posted thousands of other documents related to Kavanaugh, including his questionnaire and his more than 300 court cases as an appellate judge.
But Democrats complain that Bush’s lawyer has been able to selectively review and release the White House documents on an expedited basis without full oversight from the Archives.
Senate Minority Leader Chuck Schumer, D-N.Y., said the GOP’s unusual process of tapping Bush’s lawyer, Bill Burck, to conduct an initial review and release of the documents is a conflict. Democrats complain that Republicans are only reviewing paperwork from Kavanaugh’s work in the counsel’s office, but they also want records from his three years as staff secretary, where he touched almost every paper that reached Bush’s desk. Burck worked under Kavanaugh at the Bush White House.
“We are seeing layer after layer of unprecedented secrecy in what is quickly becoming the least transparent nominations process in history,” Schumer said.
Republicans are eager to confirm Kavanaugh this fall, before the November midterm elections, to deliver on a top Trump priority.
Because Republicans hold a majority in the Senate, confirmation is likely, But with the Senate narrowly divided 51-49, they cannot afford a defection in their ranks if all Democrats vote no. Dates have not yet been set for Kavanaugh’s confirmation hearings.