[T]he chairman of the Senate Judiciary Committee is claiming that Sen. Patrick Leahy, D-Vt., created a “precedent” for requested documents for previous Supreme Court nominees that should apply to records for Brett Kavanaugh.
Sen. Chuck Grassley, R-Iowa, sent a response on Saturday to a letter from Leahy, Sen. Diane Feinstein, D-Calif., and Sen. Dick Durbin, D-Ill.
The Democratic senators expressed concerns on Grassley’s decision not to release documents from Kavanaugh’s tenure as White House staff secretary, and called for the release of papers.
The senators said they have seen public documents from Kavanaugh’s time as staff secretary for President George W. Bush that indicate involvement in issues related to torture after the 9/11 terrorist attacks. They say more concerns could arise from a full review of Kavanaugh’s records.
“We have stated all along that the unprecedented, partisan process being used for Judge Kavanaugh’s nomination is a disservice to the Senate and to the American people,” the letter states.
Leahy, Feinstein and Durban also wrote that the documents would show whether Kavanaugh misled senators during his confirmation hearing for the D.C. Court of Appeals. He said at the time he was “not aware of any issues” concerning the treatment of detainees or legal justification for harsh interrogation techniques.
Grassley wrote in his response letter that his decision not to request records from Kavanaugh’s time in the White House is merely following “precedent established” by Leahy when he served as chairman for the confirmation of Elena Kagan as an associate justice.
Kagan served in former President Bill Clinton’s administration as associate White House counsel and deputy director of the Domestic Policy Council, a period for which documents were provided. However, records were not requested for her time in the Office of the Solicitor General.
“The reason he did not do so was because senators recognized the importance of maintaining the confidentiality of deliberations within that office,” Grassley wrote. “Republicans agreed with this decision even though these documents would have been extremely useful in evaluating Justice Kagan’s legal thinking in light of the fact that she lacked a judicial record.”
David Carle, Leahy’s spokesman, rejected Grassley’s notion that Leahy had created any sort of precedent.
“The only precedent Senator Leahy set as chairman of the Judiciary Committee for the hearings of Justices Kagan and (Sonia) Sotomayor was to work hand-in-hand with the Republican Ranking Member to request any and all documents of interest to the Committee,” he said in a statement.
Carle said Leahy worked to honor Republican requests asking Kagan to provide information from her time as solicitor general, including numerous forms of records.
He said Leahy believes the importance of documents pertaining to Kavanaugh’s time in the White House is “undeniable” and dismissed the comparison made by Grassley.
“The comparison here between documents from the Solicitor General’s office, and those of the position Brett Kavanaugh held as Staff Secretary, is apples to oranges,” Carle said. “If Republicans want to make the claim that the millions of pages they are withholding are privileged documents, then they should make that claim, but to categorically shut off the entire universe of Judge Kavanaugh’s White House documents from 2003-06, has made a sham of the vetting process.”
Leahy has been a consistent Democratic leader in efforts to obtain records from Kavanaugh’s time in the White House. He sent another letter to White House counsel Don McGahn on Friday, asking for the details from a July 24 meeting that appears to be pivotal in Texas Republican Sen. John Cornyn stance on releasing the documents.
Leahy, who is a member of the Senate Judiciary Committee, wrote that Cornyn’s position “abruptly and inexplicably” changed following the meeting.
“I find it troubling that the White House and Judiciary Committee Republicans are stifling transparency rather than working together to provide the necessary documents for the Senate to do its work,” Leahy wrote. “The American people deserve the unvarnished truth about Judge Kavanaugh, just as Senate Republicans rightly demanded of President Obama’s nominees.”
The letter notes that Cornyn, the majority whip, said on July 19 that “it just seems to make common sense” for Kavanaugh’s White House records to be made available for the Judiciary Committee.
Since the July 24 meeting called into question by Leahy, Cornyn and other Republicans have been labeling the Democratic efforts to obtain the documents as a “paper chase.”
Democrats have had challenges trying to stop or slow down President Trump’s Supreme Court pick with a Republican-controlled Senate. To block the nomination they would need all members of the party’s support, and at least one Republican to cross the aisle.
Republicans want to confirm Kavanaugh before the next Supreme Court session starts in October, and Grassley has scheduled a hearing to begin on Sept. 4.
