Senate’s race against facts
To suggest that hearings on Brett Kavanaugh’s Supreme Court nomination must be delayed for an election remains as wrong now as it was two years ago, when Senate Majority Leader Mitch McConnell invented the principle he is now abandoning to bottle up Obama nominee Merrick Garland. But Kavanaugh shouldn’t be rushed into a life term to beat the election either, and that’s what McConnell and company are doing.
Senate Republicans have scheduled hearings on President Trump’s second high court pick to begin after Labor Day, with the goal of having Kavanaugh tidily confirmed come early October. The trouble is that National Archives officials don’t expect to finish vetting Kavanaugh’s voluminous paper trail for release to the Senate Judiciary Committee until late October. During his tenures as staff secretary and associate White House counsel to George W. Bush and in Independent Counsel Kenneth Starr’s office, Kavanaugh amassed nearly 3 million documents.
The Republicans’ unsatisfying response was to allow Bush’s lawyers to conduct an expedited review led by William Burck, who once worked for Kavanaugh in the Bush administration. This circumvents a neutral review by the National Archives with one deeply sympathetic to the nominee, defeating the purpose of the fact-finding process. This being a consequential nomination that could move the high court even further right, Democrats have come up with less convincing causes for delay. They have noted, for instance, that Special Counsel Robert Mueller’s investigation has compromised Trump and that Kavanaugh might rule on issues arising from a standoff between the president and Mueller.
None of that bears on Kavanaugh’s fitness to serve on the Supreme Court, but a thorough, impartial review of his long tenure in government does. One recently disclosed record from Starr’s office showed Kavanaugh advocating aggressive questioning of then-President Bill Clinton, in marked contrast to his more recent deference to executive power. By reducing the likelihood of more revealing disclosures and outrunning any change in congressional control, the Republicans’ schedule serves their purposes, not the public’s.