Jurisprudence

So Many Guns, So Much Smoke

GOP obstruction is indefensible, but Democrats don’t need to see more documents to vote against Brett Kavanaugh.

Supreme Court nominee Brett Kavanaugh.
Supreme Court nominee Brett Kavanaugh during a meeting on Capitol Hill on July 18 in Washington.
Alex Wong/Getty Images

There is no rational, nonpartisan defense of Republicans’ decision to hold a vote on Supreme Court nominee Brett Kavanaugh by early October. Senate Majority Leader Mitch McConnell is ramming Donald Trump’s pick through the Senate because he does not want to risk taking a vote after the midterm elections, given that the GOP could lose its majority in the chamber. As a result, neither senators nor the public will have access to a comprehensive record of Kavanaugh’s work in the White House Counsel’s Office. The National Archives, which follows a process set out in federal law to determine which presidential records should be released, cannot complete its review until the end of October. It will thus turn over the bulk of the documents in its possession after Kavanaugh has (probably) received a lifetime appointment to the court.

Senate Democrats are hopping mad that their GOP colleagues have prioritized an accelerated timeline over an exhaustive document review. They’ve sought to make the conflict a key issue in the Kavanaugh-confirmation battle, insisting they cannot vote for a nominee without first undertaking “a full vetting of his record.” Democrats’ anger is understandable; their political strategy is not. While Republican obstruction over Kavanaugh’s papers is indefensible, it’s unlikely that this trove of documents would teach us anything about him that we don’t already know. Papers or no papers, we already have more than enough information to know what kind of justice Kavanaugh would be.

Republicans have always known that Kavanaugh’s lengthy paper trail would present a problem. Days before his nomination, the New York Times reported that McConnell had attempted to “nudge” Trump away from him due to “the volume of the documents” he created in his years working for the government. Kavanaugh served as an assistant to independent counsel Kenneth W. Starr during his investigation into Bill Clinton. (Responding to a bipartisan request, the National Archives has been steadily releasing his communications from this period.) He also worked in the White House Counsel’s Office during the George W. Bush administration, then as Bush’s staff secretary before he was elevated to the U.S. Court of Appeals for the District of Columbia Circuit in 2006.

Over Democratic objections, Republicans refused to request documents from Kavanaugh’s three years as staff secretary. (The nominee has referred to this period as “the most interesting and informative for me” in preparation for his work on the bench, and Republicans’ excuses for keeping them hidden are laughably unpersuasive.) Instead, Senate Judiciary Committee Chairman Chuck Grassley asked for about 900,000 pages of documents from Kavanaugh’s time in the White House Counsel’s Office. The National Archives has notified him that its team of 30 archivists and technicians will provide 300,000 pages in August, but will not hand over the remaining 600,000 pages until late October.

Republicans, though, have not delayed Kavanaugh’s confirmation hearings, which are set for early September. (McConnell, who very recently froze SCOTUS at eight justices for nearly a year, insists there is an urgent need to fill the vacancy.) Instead, they’ve relied upon a dubious alternative process to secure release of (some of) the documents. Federal law permits former presidents to designate a representative to sift through executive papers produced during their tenure and decide which ones should be made public. George W. Bush chose William Burck, a Republican attorney with several flagrant conflicts of interest. Burck currently represents White House counsel Don McGahn, who played a major role in the selection of Kavanaugh. Burck, who previously worked for Kavanaugh when the nominee served as Bush’s staff secretary, now gets to decide which of his former boss’s records will be turned over to the Senate.

Democrats have condemned Burck’s review as biased, secretive cherry-picking, and they’ve used it to kindle outrage among their base. Even the strenuously nonpartisan National Archives has distanced itself from the endeavor, noting that this Burck-led document-vetting team doesn’t represent the National Archives or the George W. Bush Presidential Library. Republicans have dismissed these complaints, framing the Burck project as an expedited release for which Democrats should be grateful.

There is, no doubt, a tantalizing mystery surrounding the hidden Kavanaugh documents. Like Omarosa’s Trump tapes, the missing papers have become an object of fascination for many progressives, who feverishly speculate that they might contain a smoking gun that could sink Kavanaugh’s nomination. Republicans’ resistance to their release only stokes their curiosity; the New York Times editorial board, for instance, openly pondered what the GOP is covering up by concealing the documents.

The likely answer? Nothing—or, at least, nothing more damaging to Kavanaugh’s nomination than the information that’s already in the public record. Based on his available writings, we know that Kavanaugh will overturn Roe v. Wade, gut financial and environmental regulations, permit religious employers to discriminate against workers, invalidate gun control laws, and abolish net neutrality. Meanwhile, he will dismiss the rights of Guantánamo detainees, undocumented minors, and unions. Kavanaugh is a Republican loyalist who has sided with the GOP on every major issue to come before the D.C. Circuit. We know all of this because, over the course of more than 300 aggressively conservative opinions, he has told us what he believes in exhaustive detail. What more could the documents reveal? Kavanaugh, for instance, has already declared war on the constitutional right to abortion access. We have the smoking guns. More evidence would gild the lily.

Democrats insist that they are not merely searching for a smoking gun. In a statement criticizing McConnell’s limited document request, Senate Minority Whip Dick Durbin claimed he hoped to read the papers to assess Kavanaugh’s “views, character, and temperament.” Maybe so, but he’s also seeking grist to sink the nominee. The reality, however, is that even if Durbin found, say, a Kavanaugh email supporting torture, the revelation would do nothing to change the dynamics of the nomination. Republicans will still vote for him. Democrats will oppose him on the same grounds they already do—grounds that are based on the decisions he’s authored as a federal judge.

Why, then, is McConnell so eager to push through Kavanaugh’s nomination before the documents are released? Aside from the looming election, there is one clear reason: The Supreme Court has stacked its October docket with major cases that will require Kavanaugh’s vote for a conservative victory. In the first 10 days of October, the court will hear cases involving environmental protections, age discrimination in employment, the execution of mentally disabled death-row inmates, mandatory arbitration, and immigrant detention. Without Kavanaugh’s vote, any or all of these cases could deadlock 4–4, allowing the liberal justices to thwart a conservative rout. With Kavanaugh’s vote, the Supreme Court could quickly begin rolling back the liberal components of Justice Anthony Kennedy’s legacy.

Democrats who are desperate to foil or delay Kavanaugh’s confirmation should focus on this real, concrete threat rather than the clash over the missing documents. Conservatives, who have spent $7.5 million in dark money to support Kavanaugh, want him on the court precisely so he can cast votes in cases like these. Progressives are rightly irritated that Republicans are playing games with the Kavanaugh documents—but surely voters will be more infuriated by the nominee’s abhorrence of gun control and abortion than his vanishing paper trail. With or without those documents, we all know what Kavanaugh stands for, and it’s exceedingly unlikely that anyone or anything will stand in the way of his nomination to the Supreme Court.