I’ve been trying to get my head around the very public wrangling of the release of archival records relating to Judge Brett Kavanaugh. The National Archives (NARA) is in the process of releasing “Approximately 900,000 pages of email and paper records were requested by Senate Judiciary Committee Chairman Senator Charles Grassley.” But democratic Senators Diane Feinstein and Chuck Schumer are accusing NARA of withholding documents relating to Kavanaugh’s time as Staff Secretary under President George W. Bush. NARA has responded by saying that it is “longstanding and consistent practice” to respond only to requests from the Chair of Congressional Committees. Senate democrats have submitted FOIA requests for the remaining documents and are threatening to sue NARA if the FOIA request is denied.
Regardless of how many documents are released and made available to the Judiciary Committee, Chairman Grassley has scheduled the committee hearing for September 4, 2018, long before NARA says it will be able to finish its work. NARA says it expects to complete its review of the first roughly 300,000 pages by August 20, and the remaining 600,000 pages by the end of October. It’s unclear whether a lawsuit to release additional records will cause the committee’s work to be postponed.
Lost in all of this political wrangling (on top of the political wrangling whereby republicans blocked President Obama from nominating someone to the Supreme Court during his term) is the fact that the American public, regardless of political leaning, is losing out on really knowing the person being nominated for a lifetime position on the US Supreme Court, effecting the US political system for at least a generation to come.
Politics is a vicious game, but the nomination of a Supreme Court Justice shouldn’t be left to the will of pure partisanship. The public needs to have access to ALL of the records regarding Judge Cavanaugh’s public work, and the committee should have time to “advise and consent,” to understand the nominee’s record, deliberate, and appoint judges.
Feinstein wrote to archivist David Ferriero in a letter obtained by CNN on Wednesday, criticizing him for his narrow view of the law used to justify denying Democrats the documents. Democrats are set to begin meetings with Kavanaugh, President Trump’s nominee to the high court, after the August recess.
“Under your overly restrictive reading of the Presidential Records Act, minority members of the Senate Judiciary Committee now have no greater right to Mr. Kavanaugh’s records than members of the press and the public,” the California senator wrote.
“I ask that you reconsider the position set forth in your August 2 letter,” she continued. “These records are crucially important to the Senate’s understanding of Mr. Kavanaugh’s full record, and withholding them prevents the minority from satisfying its constitutional obligation to provide advice and consent on his nomination.”
Democrats are pushing for the federal government to release all documents created during Kavanaugh’s time at the White House, roughly three years during the George W. Bush administration when he served as staff secretary. Republicans have accused Democrats of seeking to delay Kavanaugh’s nomination with the request.
On July 31, 2018, the National Archives received a request from the Senate Judiciary Committee’s Ranking Minority Member Senator Dianne Feinstein and the other minority members of the committee for Judge Kavanaugh’s Staff Secretary records, which number the equivalent of several million pages. However, this request does not meet the requirements of section 2205(2)(C) of the Presidential Records Act, as the Archivist of the United States David S. Ferriero explained in an August 2, 2018, letter to Senate Minority Leader Charles Schumer. On August 6, 2018, Senator Feinstein asked the Archivist to reconsider this position, and the Archivist responded on August 10, 2018.
As noted in both letters, since the Presidential Records Act was enacted in 1978, the National Archives longstanding and consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which political party is in power. For the same reason that the National Archives was not able to respond to Senator Feinstein’s request, the agency also declined to respond to the requests by Republican Ranking Members for Presidential records during President Obama’s Administration.
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