08.16.18

Senator Patrick Leahy's Remarks Today At The Judiciary Committee, On The Vetting Of SCOTUS Nominee Judge Brett Kavanaugh

There are so many things wrong with the Judiciary Committee’s vetting of Judge Kavanaugh that it is hard to know where to begin.

The White House was well aware of Judge Kavanaugh’s lengthy, controversial record as a political operative when the President selected him.  But the President selected him nonetheless.  Now the burden falls to this Committee to review his record.  To date, we are failing miserably.

The methodical review of a Supreme Court nominee’s full record is not optional.  It is the most fundamental part of the Senate’s constitutional obligation to provide advice and consent. 

That is why, as chairman of this Committee at the time, I worked with then-Ranking Member Jeff Sessions to request the full universe of Justice Kagan’s documents from the Clinton Presidential Library.  We received 99 percent of them.  Similarly, for Justice Sotomayor, I joined Senator Sessions to request records from Justice Sotomayor’s time working with a civil rights organization in the 1980s.  This was despite the fact that, in between, she had issued more than 3,000 opinions over 17 years as an appellate and district court federal judge.

This is what the American people deserve to see from Judge Kavanaugh.  Every document of public interest should be made public.  No artificial restrictions.  No abuse of executive privilege.  No hiding.  The American people deserve the unvarnished truth, just as Senate Republicans rightly demanded of President Obama’s nominees. 

Unfortunately, this Committee is not on track to uphold this bipartisan standard of transparency today.  Far from it.  

Just weeks ago, some of my Republican friends expressed a willingness to request White House documents that Judge Kavanaugh authored or contributed to as White House Staff Secretary.  But that abruptly changed after a private meeting with White House Counsel Don McGahn on July 24. Suddenly, all of Judge Kavanaugh’s Staff Secretary records were off limits.  Even those that he authored.  Why were documents authored by Judge Kavanaugh as Staff Secretary fair game going in and off the table coming out?

Days later, in a stark departure from Committee precedent, Chairman Grassley sent a partisan records request that omitted every single record from Judge Kavanaugh’s three contentious years as Staff Secretary — over one million of them.  This was an astonishing omission, given that Judge Kavanaugh himself describes his time as staff secretary as “the most formative” for him as a judge, when he provided advice “on any issue that may cross [the President’s] desk.” 

But this story only gets worse.  For every Supreme Court nominee since Watergate, professional archivists with the National Archives have reviewed any associated White House records of the nominee and provided them to the Senate Judiciary Committee as required by statute.  But for President Trump’s nominee, our Committee—for the first time ever—is sidelining this nonpartisan process for a partisan one. 

Of the limited records that Chairman Grassley requested, the National Archives has stated that it will only complete a third of its review before the confirmation hearing; the remaining two thirds will not be completed until October.  Yet our Committee is sprinting ahead with a confirmation hearing regardless.  In place of the National Archives, we are told we must accept a political lawyer handpicking what documents the Senate and the American people get to see.

By any definition this partisan lawyer is hopelessly conflicted.  He also represents Steve Bannon, Reince Priebus, and even White House Counsel Don McGahn in the Russia investigation.  Worse, he actually reported directly to Judge Kavanaugh in the Bush White House. This lawyer is not even obligated to tell us what he is withholding and why—there is no requirement for a privilege log.

This process is so extraordinary that the National Archives released a statement yesterday, making clear that it has nothing to do with the documents currently being supplied to our Committee and that this side-arrangement is unprecedented.

I would note that the website for our Committee, maintained by the majority, attempts to address this concern.  And it does so in a misleading fashion.  The website asserts that the Archives will still act as “a check against any partisan interference.”  But given the Chairman’s selection of a hearing date, this claim is simply not true.  The Archives will conclude its review two months after we hold a hearing, and a month after the Senate Majority Leader intends to hold a confirmation vote.  A check on partisan interference that occurs a month after a final vote is no check at all.

I do not arrive at this conclusion lightly, but this is the most incomplete, most partisan, and least transparent vetting for any Supreme Court nominee I have ever seen. This is especially concerning given that there are questions about whether Judge Kavanaugh was truthful the last time he testified before the Senate, as he provided a misleading account of his work in the Bush White House. We will only know the full truth with his full record.  This is what Republicans rightly demanded from Justices Kagan and Sotomayor.  And it is what the American people rightly deserve from Judge Kavanaugh. 

There is still time to get this right. It may mean that the consideration of Judge Kavanaugh does not occur in September.  But there is no need to rush.  There is no extraordinary circumstance here that would preclude the Senate from doing its job.  The fact that President Trump chose a nominee with a lengthy, partisan record, does not excuse this Committee from vetting such a record. 

The vetting of a nominee to our Nation’s highest court is as important a responsibility as we have in the Senate.  It’s time we act like it.  

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