The Last Political Check


Bill Yeomans

The Republican Senate majority is running a scam to ram through confirmation of Brett Kavanaugh without the scrutiny that is essential to our constitutional health. Republicans are panicking. They want to move quickly, in part out of fear they will lose their majority in November’s elections and that a devastating turn in the Mueller investigation might undermine Trump’s pending nominations. But, perhaps even more frightening for them, polling shows that a majority of the public already opposes Kavanaugh’s confirmation. Senate Republicans understand that the more the public learns about the nominee and his positions and the longer the Senate and public have to consider the nomination, the less popular he will become.

As a result, Senate Republicans have opted to short-circuit the usual confirmation process, which, in modern times, would require production of, at the very least, all of the nominee’s official records. That would include all of Kavanaugh’s documents generated during his service in the White House Counsel’s office and his three-year stint as Staff Secretary to George W. Bush. Senate Judiciary Committee Chair Grassley agreed initially to production of the White House Counsel documents, but balked when the archivist told him that it would take until late October to produce them. Instead, he agreed to an alternative that would have George W. Bush grant access to the White House Counsel documents to a team of fifty lawyers led by Kavanaugh’s former deputy Staff Secretary. That team – as opposed to the non-partisan archivist — is filtering through the documents and deciding which should be passed to the Senate Judiciary Committee and which should be suppressed because of privilege. So far, the team is not even providing a full log of the documents they are withholding. To top it off, Chair Grassley has decided that a significant percentage of the documents that have been produced will be held as confidential within the Committee and not shared with the public or even the rest of the Senate.

Meanwhile, the archivist continues reviewing documents on a separate track. Nobody plans to review or produce the Staff Secretary documents, despite Democratic efforts, including a Freedom of Information Act request and a threatened lawsuit.

It would be all too easy to dismiss this controversy as a mundane process argument over documents. But here’s why it matters. While the Constitution gives the president power to appoint justices, he must first obtain the advice and consent of the Senate. Once on the bench, a justice enjoys tenure during good behavior as protection against political and other pressures. But, in order to get there, a nominee must survive the intensely political confirmation process. Barring impeachment, that process is the only time a nominee will be subjected to public accountability. The scrutiny must be transparent and thorough to maintain public confidence in the court. The legitimacy and effectiveness of the court depend largely on that public confidence. Unlike the members of the other branches of government, who stand periodically for political approval or rejection, justices face

political evaluation only once. For the sake of the Court and the rule of law, it must be done right.

The rushed, corrupted process that Republicans are pursuing hurts the Court. Leaving stones unturned is dangerous. Recall, for example, the confirmation of Jay Bybee to the U.S. Court of Appeals for the Ninth Circuit. Bybee had been George W. Bush’s Assistant Attorney General in charge of the Office of Legal Counsel in the Justice Department. Shortly after his confirmation, the country learned that Bybee had signed flawed memoranda giving legal cover to the use of torture against suspected terrorists. The country was appalled by the revelation, which would surely have derailed Bybee’s confirmation. He still sits on the Ninth Circuit.

Rumors circulated during his confirmation that Hugo Black had been and perhaps remained a member of the Ku Klux Klan. The rumors – at least of his past membership – were confirmed shortly after he reached the bench, much to the chagrin of President Roosevelt and members of his administration. Under pressure to resign from the Court, Black addressed the nation and managed to keep his seat, though the cloud over his appointment lingered.

This is not to suggest that Kavanaugh authored torture memos or that he belongs to a hate organization. But, we do know even from the limited batch of documents that has been released that he was at least in the loop on matters of detainee treatment after 9/11. That fact appears to contradict assurances that Kavanaugh gave to the Senate Judiciary Committee during his confirmation for the D.C. Circuit in 2006. Production of all of the documents is necessary to address that concern and to provide a full record of Kavanaugh’s views on matters that would affect his performance as a justice.

Republicans have no standing – other than on a mountain of hypocrisy – to complain that document production will slow Kavanaugh’s confirmation. Majority Leader Mitch McConnell and his Republican caucus exhibited no concern about leaving a court seat vacant for over a year when they refused to consider President Obama’s nomination of Merrick Garland. Surely, they can spare a few months to allow full consideration of Trump’s nominee.

Indeed, reports surfaced that McConnell urged Trump not to select Kavanaugh because of his lengthy paper trail. The fact that Trump ignored McConnell – almost surely because of Kavanaugh’s view that a sitting president should not be criminally investigated or charged – does not justify distorting the confirmation process to keep the public in the dark and impair the ability of the Senate to perform its constitutional obligation to provide advice and consent. The Senate must take the time to gather and release all of the records.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.