It’s objectively unprecedented for the Senate to be provided such a small fraction of the documents related to a Supreme Court nominee’s past work, as in the case of Judge Brett Kavanaugh. During Wednesday’s confirmation hearing, Sen. Dick Durbin (D-IL) caught Judiciary Committee Chairman Sen. Chuck Grassley (R-IA) in an apparent lie about why that is.
Durbin began his questioning of Kavanaugh by highlighting how conspicuous it is that the Senate has been deprived of so many documents from Kavanaugh’s time working for the Bush administration and that so many more have been unilaterally classified. More than 100,000 documents from Kavanaugh’s time in the Bush administration have been held back under the claim that they are protected by “executive privilege.” Bill Burck, a private attorney and longtime friend of Kavanaugh, has personally controlled what documents can be shared, instead of the National Archives and Records Administration as is the standard process.
Durvin told Kavanaugh that Burck has “some magic power to decide what the American people will see about your role in the White House.” He implored Kavanaugh to himself call for the proceedings to be suspended so there wouldn’t be “a cloud over this nomination.”
Grassley interrupted a moment later, however, to insist that the committee had been handling the documents in proper accordance with the Presidential Records Act.
As Durbin pointed out, that is not true.
Durbin noted that the Act requires coordination with the National Archives to arrange for the documents. The committee had not done this — instead procuring the documents directly from the Bush library.
Grassley declared that he was prepared for this accusation and read a prepared statement:
They have accused us of cutting of cutting the National Archives out of the process, so this is where I want to set the record straight. President Bush acted consistently with federal law when he expedited the process and gave us unprecedented access in record time to Judge Kavanaugh’s record, but we have worked hand in glove with the Archives throughout this process and the documents this committee received are the same as if the archives had done the initial review. […] The National Archives was not cut out of the process.
Again, this was flagrantly untrue, and Durbin immediately called Grassley out. Indeed, the National Archives put out a statement last month clarifying that neither President Bush’s actions nor the Judiciary Committee’s decision to publish some of those documents represented the National Archives. It also said that because the volume of documents related to Kavanaugh’s tenure was so high, its review would not be fulfilled until late October.
Durbin entered the Archives’ statement into the committee’s record.
The way Grassley rushed to get the documents outside the normal procedure and then tried to cover it up shows how desperate Senate Republicans are to rush this confirmation process. They want Kavanaugh on the Court in time for the next session, so the entire reason the documents aren’t available is because they simply didn’t want to have to wait for the Archives to process them.
Grassley may have claimed they worked “hand in glove” with the Archives, but the truth is that they didn’t work together at all.