What you should know about the documents at the heart of the Kavanaugh fight

Republicans want Kavanaugh's record with the Bush White House kept secret. Democrats aren't having any of it.

Democrats and Republicans sparred on Tuesday morning ahead of Supreme Court nominee Judge Brett Kavanaugh's confirmation hearing. Democrats are upset that a number of documents on Kavanaugh's judicial history have not yet been released for review. (Photo credit: Win McNamee/Getty Images)
Democrats and Republicans sparred on Tuesday morning ahead of Supreme Court nominee Judge Brett Kavanaugh's confirmation hearing. Democrats are upset that a number of documents on Kavanaugh's judicial history have not yet been released for review. (Photo credit: Win McNamee/Getty Images)

Democrats and Republicans on the Senate Judiciary Committee on Tuesday sparred over whether the hearing for Supreme Court nominee Brett Kavanaugh should proceed as planned — with the hearing quickly descending into chaos as Democratic senators repeatedly interrupted Sen. Chuck Grassley (R-IA).

At the center of the conflict is a trove of documents from Supreme Court nominee Brett Kavanaugh’s time as president of the White House Counsel’s Office and later as staff secretary to the Bush administration.

Sens. Patrick Leahy (D-VT), Richard Blumenthal (D-CT), and Kamala Harris (D-CA) used their time at Tuesday’s hearing to push back on the Trump administration’s decision last week to withhold 100,000 pages-worth of records, under the guise of executive privilege.

The fight over the documents gave Democratic senators an opportunity to try to slow Kavanaugh’s confirmation hearing on technical and procedural grounds.


“This is a hearing that is about who will sit in a house that symbolizes our system of justice in this country,” Harris said. “Some of the most important principles behind the integrity of our system of justice is that we have due process, and we have transparency. … We can argue, then, as to the weight of the[se] documents and the significance, but not as to whether or not they are admissible.”

Tens of thousands of Kavanaugh’s documents have not been released

The pages that Democratic senators keep referencing are part of a larger cache of documents from the Bush White House, held by the National Archives, which are currently being reviewed by a team of lawyers.

As staff secretary and White House counsel president under the Bush administration, Kavanaugh’s job was to field all documents sent to the president’s desk, giving him access to highly classified records and requests. As White House counsel, he was tasked with handling confidential internal matters pertaining to the president.

Democrats say the records will give them better insight on Kavanaugh’s time as a partisan staffer. But Republican lawmakers, as well as the Trump administration, have attempted to stonewall Democrats to prevent them from accessing certain materials, claiming the sensitive nature of both positions requires discretion.


Grassley rebuked Democrats for stalling Tuesday’s hearing over the documents, insisting that there was nothing crucial in them, and claiming Kavanaugh’s legal writings as a circuit judge were enough to determine his eligibility for the Supreme Court seat.

“Those documents are the least useful in understanding his legal views in the most sensitive to the executive branch,” Grassley said. “… Reviewing judge Kavanaugh’s staff secretary documents would teach us nothing about his legal views. For that, we have the 307 opinions he wrote in the hundreds more joined, totaling more than 10,000 pages of judicial writings.”

The White House invoked executive privilege to keep the documents secret

In a letter to Grassley last week, William A. Burck, a lawyer representing President George W. Bush, said that a number of the reviewed documents — more than 100,000 of them — would be kept private because Kavanaugh, as “an associate and senior associate White House counsel, dealt with some of the most sensitive communications of any White House official.”

“[We were] directed that we not provide these documents,” Burck said, referring to guidance he said he had received from the Trump White House.

As former Obama White House deputy counsel Christopher Kang told the Washington Post’s Seung Min Kim on Saturday, other presidents have not invoked executive privilege to prevent previous nominees’ records from going public.


“This may be the latest and most dramatic breach in the process, but we already knew it was a sham, broken at every step along the way,” Kang said. “The issue now is what are Democrats going to do about it? Unite in opposition? Boycott the hearing? This kind of brash coverup requires an equally forceful response.”

Some documents were released at the very last minute

On Monday night — just hours before Kavanaugh’s hearing — Burck released 42,000 pages of those documents to the Senate Judiciary Committee, prompting more criticism from Democrats over the last-minute decision.

“This underscores just how absurd this process is,” New York Sen. Chuck Schumer tweeted. “Not a single senator will be able to review these records before tomorrow.”

Nevertheless, at 10:50 p.m. Monday night, the official Senate Judiciary Committee Twitter account tweeted that Chairman Grassley and his team had reviewed all 42,000 documents in a span of less than three hours and were “prepped and ready for Judge Kavanaugh’s hearing…tomorrow.”

“The Majority staff has now completed its review of each and every one of these pages,” they wrote.

Burck’s team has previously handed over more than 400,000 other documents to the Senate Judiciary Committee — a sticking point with Republicans like Grassley, who argue Democrats are trying to stop the hearing altogether.

Following the release of the 42,000 new documents on Monday, the Justice Department issued a statement Monday night claiming the process has been transparent. “The volume, depth, and breadth of the production of Judge Kavanaugh’s documents far surpasses the much smaller and narrower productions for previous nominees,” spokesperson Sarah Flores said.