Kavanaugh’s hidden record

Supreme Court nominee Brett Kavanaugh steps on an elevator after a meeting with Sen. Joe Donnelly, D-Ind., on Capitol Hill in Washington, Wednesday, Aug. 15, 2018. AP PHOTO/CLIFF OWEN

We are now less than two weeks away from Judge Kavanaugh’s confirmation hearing before the Senate Judiciary Committee. Two weeks away, and the committee has received only six percent of his total White House records, according to the National Archives. And not a single one of the records we have received has been provided by the National archives. That is because the Archives will not complete its review of the limitednumber of records requested by Chairman Grassley until October — a month after the majority leader intends to hold a final vote on Judge Kavanaugh.

Instead, every single record provided to the Judiciary Committee to date was handselected by a political lawyer representing President George W. Bush. A partisan lawyer who reported directly to Judge Kavanaugh in the Bush White House, and who now also represents White House Counsel Don McGahn, Steve Bannon, and Reince Priebus in the Russia investigation.

This process stands in stark contrast to the vetting of Justice Kagan who, like Judge Kavanaugh, had served in the White House prior to her nomination. As chairman of the Judiciary Committee at the time, I worked hand-in-hand with then- Ranking Member Jeff Sessions to ensure that we received every document of interest to the committee. When we were 12 days away from Justice Kagan’s hearing, we had already received a full 99 percent of her White House records.

Ninety-nine percent. Compare that to the six percent we have received for Judge Kavanaugh today. And every single one of Justice Kagan’s records was provided by the nonpartisan National Archives — not a political, partisan, and hyper-conflicted attorney.

The superficial vetting of Judge Kavanaugh is all the more troubling because there are still serious concerns about the last time he testified before the Senate. During his 2006 nomination hearing for the D.C. Circuit Court of Appeals, Judge Kavanaugh minimized his work on highly controversial issues in the Bush White House, including detainee treatment and warrantless wiretapping. It is now clear that we will only know the full truth with his full record. Anything less is simply rushing to a verdict before the trial. Based on the limited documents we have seen, there is additional reason to be concerned. The committee has received new evidence that sheds light on whether Judge Kavanaugh was truthful under oath in 2006. Unfortunately, I cannot even describe these documents, and the American people cannot see them. That is because nearly two thirds of the documents the Judiciary Committee has received have been designated as “Committee Confidential” by Chairman Grassley, following the request of the partisan attorney who the Senate is relying on to do the job of the nonpartisan National Archives. To date, that means two percent of Judge Kavanaugh’s White House record is available to the American people. Just two percent. I have served in this body for 44 years. I have been here for every Supreme Court nomination since John Paul Stevens. For 20 years I served as the chairman or ranking member of the Senate Judiciary Committee. The vetting of Judge Kavanaugh is the most incomplete, most partisan, and least transparent for any Supreme Court nominee I have ever seen. And it’s not even close.

Yesterday I met with Judge Kavanaugh. I had the opportunity to ask him about many issues, including his work in the Bush White House. Following our meeting, I believe even more strongly that documents he authored or contributed to during his three years as the White House Staff Secretary should be released and made public now. A vigilant review of a Supreme Court nominee’s full record is not optional. And it should not depend on what party controls the White House.

Today, it is undeniable that documents of clear public interest are being hidden from the American people. Documents that would shed a light on both his views and his fitness to serve on our nation’s highest court. Wearing blinders in this moment is fundamentally incompatible with our constitutional obligation to provide advice and informed consent.

The federal judiciary stands alone, unlike any other branch of our government. Judges, for good reason, never face the scrutiny of the electorate. Once a Supreme Court justice is confirmed, he or she serves for life. Barring impeachment, which has happened just once in our nation’s history, they serve with essentially no oversight. That means the Senate has no second chances when it comes to vetting a nominee. We have to get this right now.

Fortunately, there is still time to do so. The Senate should not be focused on getting Judge Kavanaugh confirmed by October 1st. The Senate should be focused on doing its job. And that requires allowing the National Archives to complete its review of Judge Kavanaugh’s record as required by the Presidential Records Act. At a time when the president is facing unprecedented legal jeopardy, it would be an extraordinary disservice to the American people to break all precedents and confirm his selection to the Supreme Court without an actual review.

The fact that Judge Kavanaugh has a longer record than prior Supreme Court nominees — something that the president was keenly aware of when he selected him — does not excuse the Senate from doing its job. If confirmed, he will shape the lives of Americans for a generation or more.

If, when the National Archives completes its review in October, we learn that we did not get it right, it will fall squarely on the shoulders of this body. We should set this partisan vetting aside and work together to actually vet Judge Kavanaugh’s record in a way that honors both our constitutional obligation and the job the American people sent us here to do.

Sen. Patrick Leahy is the senior U.S. senator from Vermont. He lives in Middlesex.

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