Sniping about Brett Kavanaugh’s paper trail dominated the Senate Judiciary Committee’s hearings on the judge’s Supreme Court nomination on Tuesday, the first day. Republicans pointed out that a very large number of documents have been disclosed. Democrats countered that, regardless of the number, they still represent a small fraction of the files that could have been released. The Democrats have a point: The Republicans are running a rushed review of a man who is on track to occupy a seat on the nation’s highest court.
Committee Republicans never even requested papers from Kavanaugh’s time as White House staff secretary to President George W. Bush, which Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has deemed irrelevant.
In fact, Kavanaugh has said that serving as staff secretary prepared him more than any other past job for his service as a judge, and other previous staff secretaries have insisted that the post is more substantive than Republicans have claimed.
Even if it took more time, there should have been a nonpartisan process to release all staff-secretary documents that would have been germane to Kavanaugh’s hearings.
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The Trump administration also withheld more than 100,000 pages of documents under the president’s authority to protect sensitive executive-branch communications.
It’s true that releasing certain files would risk harming White House decision-making, by making presidential advisers fear that frank private counsel might be exposed during or shortly after their tenures. But the vast number of hidden documents raises questions about abuse of this authority.
Even when the committee has received documents, many came with strict conditions on their use: More than 100,000 pages were designated for senators’ eyes only. Usually, relatively few records are deemed “committee confidential.” Worse, a private lawyer working for Bush has been deciding which documents receive the designation. Senators may have questions stemming from committee-confidential documents that they cannot ask, or that might seem strange outside of the factual context that inspired them. The National Archives should have made all of these decisions, even if it delayed the hearings.
Finally, the Bush team dropped more than 42,000 committee-confidential pages on Monday — the day before Kavanaugh’s hearings were set to begin. That Grassley’s committee staff was apparently able to sort through them at lightning speed does not mean it was reasonable to expect every other senator to do so.
Whatever the Democrats’ intentions in seeking more documents — they have been accused of trying to delay the hearings — there is no good excuse for truncating the committee’s vetting. Records should be public so that Americans can know more about a judge who will be determining so many weighty questions that affect them. Questions — even from hostile senators — should be informed for the same reason. Republicans are wrong to rush the committee’s consideration just so they can ram through Kavanaugh’s confirmation before the November elections. It’s a process that will leave many Americans wondering, with reason, what they are not being told.
This editorial was first published in The Washington Post.