Just because the current political landscape in Washington suggests most, if not all, Senate Democrats will oppose Judge Brett M. Kavanaugh’s appointment to the U.S. Supreme Court while their Republican counterparts are likely to endorse it, that doesn’t absolve the Senate from its constitutional duties. Advice and consent should be informed. Judge Kavanaugh’s nomination deserves to be fully scrutinized and the American people better educated on the consequences of his lifetime appointment to the nation’s highest court.
That includes reviewing not just the legal cases Mr. Kavanaugh heard as a judge on the U.S. Circuit Court of Appeals for the District of Columbia over the last dozen years. It also requires a thorough examination of his years as White House staff secretary to President George W. Bush, a position of far greater importance than its name implies and one that the nominee himself suggested in a first-person law magazine article was instrumental and “most instructive” to preparing him to serve as a federal appeals court judge (a point he’d also made years earlier when he last faced Senate scrutiny).
Yet a request for documents from this 2003-2006 period is in danger of becoming a purely partisan exercise. Senate Judiciary Chairman Chuck Grassley has described the Democratic requests for documents from the staff secretary years as “bloated” document demands representing “an obvious attempt to obstruct the confirmation process.” It’s entirely possible that Minority Leader Chuck Schumer delights in the idea that a request for White House paperwork — similar to the one GOP senators insisted on for Elena Kagan’s time as solicitor general under Barack Obama — might give Democrats more time to scrutinize Judge Kavanaugh’s record or perhaps even push his confirmation vote until after the November election. But so what? The alternative available to Chairman Grassley is to keep secret the nominee’s involvement in such legal matters as gay marriage, partial birth abortion and the reauthorization of the PATRIOT Act, all of which came across Mr. Kavanaugh’s White House desk in some form.
That’s not to recommend that every piece of paper that Mr. Kavanaugh ever viewed — serving as an intermediary and screener for the president on legal matters is a major part of the staff secretary job, after all — can be justified, but what Senator Grassley and his Republican colleagues have offered to date is to request from the archives only the papers from Mr. Kavanaugh’s time as White House counsel and none — zero, nada, zilch — from his time as staff secretary. That’s not a compromise, that’s the beginning of a cover-up, and the American public should not tolerate it.
There are undoubtedly many on Mr. Grassley’s side of the aisle who are perfectly comfortable with asserting the power of their 51-vote majority and doing what they please with this particular nomination. Their priority is in getting him approved and then basking in the approval of social conservatives who relish the further rightward tilt of the Supreme Court that Mr. Kavanaugh’s arrival will make possible. After all, Republicans made a similar power move two years ago when they refused to even hold hearings on the nomination of Judge Merrick Garland whom President Obama presented to the Senate as a Supreme Court nominee in March, or four months earlier in an election year than President Donald Trump presented Mr. Kavanaugh this time around. Time was no issue to GOP senators in 2016, but it’s a pressing concern for them in 2018.
The collective effect of all this partisan bullying is to demonstrate to the American people that all those grandiose claims senators like to make about Supreme Court nominations, about demanding excellence, qualifications and judicial temperament, of expecting a court of nine impartial and independent, collegial and modest, respectful and diverse justices, all that lofty language, is just a bunch of poppycock. It suggests instead that to the political victor goes the spoils, and when a president’s party also controls the Senate, they can pack the court with any backroom muldoon they might desire.
Aren’t enough of our federal institutions (the FBI, the intelligence services, the Justice Department and so on) suffering sufficient unjustified damage under this president to draw a line somewhere around what is supposed to be the world’s most respected court? Maybe the fix is in for Mr. Kavanaugh, but surely Senator Grassley and others can at least pretend to be interested in a full review of Mr. Kavanaugh’s background. To refuse to do so not only reflects badly on the Senate, it diminishes the public’s regard for the judiciary, a worrisome prospect in a nation where respect for the rule of law is supposed to be more than an empty slogan.
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