If the early going is any indication, every stage of the Senate’s consideration of Judge Brett M. Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court is going to be a partisan battle.
At this point in his confirmation process, Kavanaugh should be meeting widely with the senators who will approve or reject his nomination. But even that is on hold as lawmakers fight about how many papers from Kavanaugh’s past they should review.
Democrats argue that the whole universe of papers from the judge’s past — including his work as staff secretary to President George W. Bush — should be fair game.
This could total 1 million or more pages, a document dump that could delay Kavanaugh’s confirmation. Republicans insist that vast swaths of that record would be totally irrelevant to his judicial qualifications. In fact, much of it would be — but that does not mean there should not be a thorough and searching analysis of that part of Kavanaugh’s past work that is germane.
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Democrats argue that senators should make the same demands of Kavanaugh as they did of Justice Elena Kagan during her confirmation proceedings. Kagan served President Bill Clinton before joining the federal bench; senators received records from her White House tenure.
Republicans counter that Kavanaugh’s work as staff secretary was not comparable; his job was more about keeping documents flowing in the right directions at the right times, not offering substantive contributions to the policy questions crossing his desk.
Kavanaugh himself has said his time as staff secretary prepared him for judging. Moreover, he may have participated in weighing some extremely hot-button issues the Bush White House considered — torture, enemy combatants, signing statements and so forth. The Senate should consider any substantive contributions he made on these and other issues, both to gauge his temperament and to determine whether he would have to recuse himself in big cases.
Doing so may not require that senators review literally every document that touched Kavanaugh’s hands. Rather, Democrats and Republicans should agree on a way to streamline the process.
Senate Majority Whip John Cornyn, R-Texas, said on July 19 that, “Documents that were merely distributed among the executive branch by Kavanaugh when he was staff secretary, but which he didn’t have any role in authoring or writing or contributing to, those would bear no relevance at all to his qualifications to serve as judge.”
But, he added, materials he generated or contributed to are a different story.
Cornyn’s words suggest that there should be an acceptable compromise between a massive document dump and no disclosure at all of Kavanaugh’s staff secretary papers.
A targeted dump — perhaps overseen by archivists at the George W. Bush presidential library, a nonpartisan review committee or another credible body with the ability to conduct electronic keyword searches — would fit the bill. Senators should find a way to satisfy legitimate interest in what Kavanaugh’s past work suggests about his views and temperament, then let the process proceed.
This editorial was first published in the Washington Post.