Kavanaugh-file limits draw Democrats’ ire
Senate Democrats on Sunday criticized Republicans for withholding documents on Supreme Court nominee Brett Kavanaugh, whose confirmation hearings begin Tuesday.
Their complaints came in response to the White House’s decision to hold back more than 100,000 pages of documents from Kavanaugh’s work as a lawyer in President George W. Bush’s administration, citing executive privilege. Dick Durbin of Illinois, the No. 2 Senate Democrat, said only 6 percent of requested material will be released, “if we are lucky.”
“If he’s so proud of his conservative credentials, show us the record, stand before us, trust the American people and they will trust you,” Durbin said on Fox News Sunday.
“It’s not normal,” Sen. Amy Klobuchar of Minnesota, who like Durbin is a Democrat on the Senate Judiciary Committee, said on NBC’s Meet the Press about the withholding of documents.
Republicans said Kavanaugh’s views can be better assessed by studying the more than 300 opinions he has written as a judge on the federal appeals court in Washington.
“The Democrats have more than enough information to understand that this is a highly qualified jurist that should be the next Supreme Court justice,” Sen. Ron Johnson, R-Wis., said Sunday on ABC’s This Week. “In an earlier time, 30 years ago, he would have passed unanimously.”
The Judiciary Committee said Saturday that the release of records is nearly complete. But William Burck, a lawyer representing Bush in the document production, said in a letter released by the com-
mittee that after conferring with the White House and the Justice Department, some records would be withheld on the grounds of executive privilege.
According to the letter, the bulk of the withheld documents cover “deliberations and candid advice” about potential nominees for federal courts, while the remainder include substantive communications between Bush and his staff regarding executive orders and legislation. Kavanaugh “dealt with some of the most sensitive communications of any White House official,” the letter said.
An assertion of executive privilege, used to block the release of information to Congress, the courts or the public on grounds of national security or to protect private White House deliberations, can only be made by a sitting president. President Donald Trump’s White House is asserting the privilege to protect communications from Bush’s administration.
Burck’s team announced that it had largely concluded its document production, with more than 267,000 pages cleared for public release. Republicans say that’s more than has been provided for previous court nominees, but it’s far less than the 900,000 pages the National Archives initially estimated.
In a letter to Sen. Charles Grassley, R-Iowa and chairman of the Judiciary Committee, Burck’s team said that duplicate documents cut that number to about 600,000. An additional 174,000 pages were made available to the committee on a confidential basis.
While Republicans have emphasized that more than 440,500 total pages of material from Kavanaugh have been released, Democrats have fought for greater access to documents from his time as a lawyer in the Bush administration, before he was confirmed as a federal judge in 2006. Those documents,
they say, would provide insights into his thinking on issues including abortion and presidential investigations.
Sen. Richard Blumenthal, D-Conn., told reporters that Republicans are “cherry-picking” what Kavanaugh records are available. He called it “a disservice to the American people.”
Senate Minority Leader Charles Schumer, D-N.Y., said in a tweet Saturday that the decision to withhold the documents was unprecedented for nominees and “has all the makings of a cover up.”
‘NUCLEAR OPTION’
Democrats have little power to stop Kavanaugh’s confirmation. When they party controlled the Senate in 2013, then-Majority Leader Harry Reid, D-Nev., invoked what’s known as the “nuclear option” to get around Republicans blocking President Barack Obama’s judicial nominees. It allowed the Democrats to approve judges by a simple majority rather than the 60 votes needed to overcome a filibuster.
Back then, Reid used the maneuver for all non-Supreme Court judicial nominees. But when Democrats, now in the minority, tried to filibuster Trump’s first Supreme Court pick last year, Majority Leader Mitch McConnell, R-Ky., used the nuclear option to get Neil Gorsuch through.
Klobuchar said Sunday that, in retrospect, the Democrats should have left the procedure alone.
When the Democrats changed the rules five years ago, Klobuchar supported doing so and even told MinnPost that she was fine with a future Republican majority invoking the nuclear option, too, but she made clear that Democrats were not applying those changes to Supreme Court nominees.
With its slim 50-49 majority, the GOP can approve Kavanaugh on a strictly party-line vote. In other words, if every Republican senator supports his confirmation, no Democratic votes are needed.
Sen. Lindsey Graham,
R-S.C. and a member of the Judiciary Committee, said on Fox News Sunday that he believes Kavanaugh will be confirmed and may get as many as 55 votes.
Republicans likely will soon get another Senate seat after Arizona Gov. Doug Ducey, a Republican, nominates someone to fill the vacancy left by the death of Sen. John McCain. Some Democrats facing re-election in November in states won by Trump in 2016 are also likely to side with Republicans on Kavanaugh’s nomination.
Kavanaugh’s nomination to fill the seat held by Justice Anthony Kennedy, who stepped down at the end of the Supreme Court’s term in June, has worried some senators concerned about his views on decisions such as Roe v. Wade, which established a woman’s right to obtain an abortion.
Kennedy, viewed as a moderate and often a swing vote on the court, upheld abortion rights in a key 2016 decision that struck down a Texas law that could have forced many providers of the procedure in the state to shut down.
Graham said Kavanaugh “will give great deference, I’m sure, to Roe v. Wade. But it can be overturned like every other decision, but that will be up to the facts on the record.”
In a separate appearance on CNN’s State of the Union, Graham said that “precedent is important, but it’s not inviolate.”
Durbin raised concerns about Kavanaugh’s views on presidential accountability, given the convictions of Trump associates stemming from special counsel Robert Mueller’s investigation into Russian interference in the 2016 election and potential collusion by the Trump campaign.
“There is a serious question whether this president, given the opportunity, will end the Mueller investigation,” Durbin said. “We ask, of course, Judge Kavanaugh, what do you think, and he says it’s hands off when it comes to a president during his term in office.”
OTHER PRIORITIES
Kavanaugh’s confirmation is just one of the major items on the agenda as lawmakers look to wrap up their work and head home to campaign for the November elections.
Keeping the government running is a top priority as lawmakers face a Sept. 30 deadline to pass spending bills.
The House and Senate have both approved a series of measures but have not agreed on a unified bill that could go the president’s desk.
Lawmakers hope to approve at least three compromise bills that fund a large portion of the government, including the military and most civilian agencies.
In a shift from previous years, the Senate has approved nine of 12 mandatory spending bills, enough to fund nearly 90 percent of the government. McConnell called that “an important step forward” and evidence that “Congress is in good hands” under GOP majorities in the House and Senate.
Still, lawmakers from both parties remain wary of a government shutdown, which Trump has threatened unless he gets funding for a wall along the U.S.-Mexico border. Democrats have resisted Trump’s plan to spend $25 billion to fulfill that campaign promise.
A shutdown just weeks before the November elections would be the third under unified Republican control of Washington, after stoppages in January and February. That prospect has provoked widespread anxiety among Republicans facing tough re-election fights.
Other items on the agenda when Congress returns Tuesday include passing a farm bill, renewing federal aviation programs, and questioning social media executives about foreign interference in their operations and whether they are biased against conservatives, as Trump has alleged.
Information for this article was contributed by Bill Allison, Mark Niquette and Susan Decker of Bloomberg News; by Colby Itkowitz of The Washington Post; and by Lisa Mascaro, Kevin Freking, Matthew Daly, Catherine Lucey and Juliet Linderman of The Associated Press.