“What Are They Hiding?”

The Brett Kavanaugh confirmation fight has escalated rapidly.

Chuck Schumer.
Senate Minority leader Chuck Schumer speaks to reporters on July 17on Capitol Hill in Washington. Andrew Caballero-Reynolds/AFP/Getty Images

Last Friday, the chairman of the Senate Judiciary Committee, Iowa Sen. Chuck Grassley, requested a trove of records from the George W. Bush Presidential Library pertaining to Supreme Court nominee Brett Kavanaugh’s time in the administration. Grassley made the request to National Archives staff unilaterally, after failing to reach an agreement with his committee counterpart, California Sen. Dianne Feinstein, on which records they would need to see. Grassley’s move was an early turning point in the Kavanaugh confirmation process, abruptly ending the make-believe period of bipartisan cooperation and beginning a dogfight over paper.

Grassley requested only the records from Kavanaugh’s first gig in the Bush administration, from 2001–03, when he served in the White House Counsel’s office. These records include both paper files from the time as well as any emails sent or received by Kavanaugh. Anything more, Grassley said a couple of days earlier, in a letter to Senate Democratic Leader Chuck Schumer, would be giving in to “an attempt to obstruct the process.”

“I’m not going to put American taxpayers on the hook for Democrats’ fishing expedition,” Grassley concluded, “especially when many on your side have already said that they will oppose Judge Kavanaugh’s confirmation.”

Democrats want to see the records from both of Kavanaugh’s Bush administration jobs—in the counsel’s office and in his capacity as White House staff secretary from 2003 through 2006. Though Republicans argue that a staff secretary only serves as a White House “traffic cop” or “paper pusher” who doesn’t offer broad legal counsel, Democrats point to Kavanaugh’s own words to highlight the records’ significance. In a 2016 article describing what “prior legal experience has been most useful for me as a judge,” Kavanaugh cited “my five-and-a-half years at the White House and especially my three years as staff secretary for President George W. Bush” as “the most interesting and informative for me.”

Democrats are still trying, at least for publicity’s sake, to persuade the Archives to give them the staff secretary records. In a letter sent Tuesday to Bush Library director Patrick Mordente, Democrats on the Judiciary Committee made their own formal records request. Expansive wouldn’t do it justice. It requests all paper and email records to, from, or referencing Kavanaugh during each of his jobs as well as those relating to his 2006 appellate nomination. After laying out these categories, the request then—for good measure—applies the following catchall for anything they’d missed: “All records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him.” If Brett Kavanaugh blew his nose, Democrats want to see the tissue.

Unfortunately for Democrats, National Archivist David Ferriero had sent a letter last week to Feinstein—sorry, a lot of dang letters flying around here—that seemed to shut the door on that request. “As my staff has discussed with your staff,” Ferriero wrote, “the authority of a committee to make requests […] lies exclusively with the Chair of the committee.” In other words, Grassley and only Grassley would have final say on what records the committee can request.

Schumer, in a press conference Tuesday, told reporters that he had spoken with Ferriero on Monday and asked him to “do the right thing” and “let us and the American people see the documents.” Ferriero, according to Schumer, “said he would give it a careful look and get back to me at the end of the week.” That sounds an awful lot like what an archivist might say to a document-hungry politician in an effort to end a phone call, but we’ll see.

Democrats in the same press conference previewed what their message would be should those documents never come out: speculation about what murky grime might be contained within them. Positioned next to Schumer, Feinstein, and Illinois Sen. Dick Durbin at the dais was a poster that listed some controversies during Kavanaugh’s time as staff secretary: torture, Hurricane Katrina, and the Bush administration’s controversial use of legislative signing statements. Democrats want those records in an effort to tie Kavanaugh, in some way, to the lowlights of one of the most unpopular administrations in recent history.

“What are they hiding?” Schumer asked of the Senate Republicans.

If the archivist rejects his request, the recourse, Schumer said, would be for “the American people [to] let their senators know that they want to see these documents.”

But judging by Maine Sen. Susan Collins and Alaska Sen. Lisa Murkowksi, the Democrats’ only apparent, but distant, opportunities to derail the nomination, Republicans aren’t feeling much constituent pressure on this issue. “I don’t see a need for” the staff secretary records, Collins told a HuffPost reporter. “The document request that Senator Grassley has made is very comprehensive.” Murkowski, meanwhile, praised Grassley for “making an extraordinary amount of information available about this judge.”

Democrats, so far, cannot find a way to make them budge.