During Thursday’s Senate Judiciary Committee hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court, Sen. Cory Booker declared he was having an “I am Spartacus” moment. Booker said that, at the risk of “potential ousting from Senate,” he was releasing “committee confidential” documents regarding Kavanaugh’s opinions on affirmative action and racial profiling during his time working in President George W. Bush’s White House counsel’s office.
The documents themselves didn’t reveal much we didn’t already know about Kavanaugh’s views. They show that he took a strong stance against what he described as a “naked racial set-aside” in Department of Transportation regulations governing affirmative action, and that he also took part in a conversation that considered racial profiling in airport security immediately following the 9/11 terrorist attacks. (Kavanaugh said he opposed racial profiling in the long-term, but seemed open to it in the short-term.)
What was more instructive about Thursday’s events was what they demonstrated about the process through which the committee has collected information about Kavanaugh’s time working in the Bush White House. The emails Booker released were not classified in any way and had no identifying information that could have reasonably led them to be labeled “committee confidential.” They were withheld from public view by attorney Bill Burck, a friend and former colleague of Kavanaugh’s who is managing the document request process for the Bush Presidential Library. Burck’s potential conflicts of interest don’t end there: He is representing Don McGahn, Reince Priebus, and Steve Bannon in special counsel Robert Mueller’s investigation of President Donald Trump’s campaign. Questions in that case could easily appear before the Supreme Court. Further, McGahn was responsible for shepherding Kavanaugh through the confirmation process.
The documents Booker revealed show that Burck took an expansive approach to guarding information. After chastising Booker for going rogue, Senate Judiciary Committee Chairman Chuck Grassley ultimately released the emails in question, as well as those requested by a number of other Democratic senators. Burck then issued a statement saying he had authorized the document release and mocking Booker’s “histrionics.”
This would all seem to take some of the air out of Booker’s “Spartacus” moment and eliminate any need for potential proceedings against him for violating Senate rules, which Booker dared his colleagues on the Republican aisle to begin, saying, “Bring it on.”
During previous judicial nominations, the committee had allowed for documents to be designated “committee confidential” on the basis of bipartisan agreement. This time, that designation was controlled by Grassley, according to the Iowa senator, as part of a deal with Burck. So the lawyer for the current White House counsel, who also happens to be a close friend of the nominee, teamed up with the Republican committee chairman to decree that certain documents were not fit for public consumption, and they did so without any apparent rational basis. Burck himself seemed to concede as much when he stated that he had changed his mind and was allowing the emails to be public.
While the Booker releases were not earth-shattering, Kavanaugh left a long paper trail during his years working in the White House, and some of that paper trail directly contradicts previous testimony Kavanaugh has given to the Senate Judiciary Committee. Progressive groups on Wednesday had called for Senate Democrats to go further and release all of the “committee confidential” documents to the public before the hearings were over, though there’s no indication that Booker or anyone else on the committee plans to do so.
If the limited document production Democrats were able to induce suggests Kavanaugh has repeatedly misled the committee in the past, it’s no wonder that they are desperate to fight for the remaining documents. Grassley has not sought documents from Kavanaugh’s time as staff secretary for Bush, a period the judge has described as formative. Of the documents from his time in the White House Counsel’s office that were requested, the Trump administration has sought to privilege 100,000 of those without any challenge from the committee. The National Archives, which would normally manage this entire process, has said it has nothing to do with Burck’s decision-making. Burck only took charge because the Archives needed until the end of October to complete the document review and Republicans, hoping to confirm the nominee before this November’s midterm elections, insisted it go ahead outside of the normal schedule.
As Booker said of one of the emails in question: “The fact that there is nothing in the document that’s personal information, there’s nothing national security-related, the fact that it was labeled as committee confidential, exposes that this process, sir, is a bit of a sham.”
That sham will help Kavanaugh be elevated to a lifetime appointment to the highest court in the land.