How will the Senate Treat Judge Kavanaugh?

PERSPECTIVES


Op-Ed by NATHAN INKS

Not long after President Trump’s first Supreme Court appointee, Justice Neil Gorsuch, had completed his first year on the bench of the nation’s highest court, Justice Anthony Kennedy announced his resignation. The announcement caused a stir on both sides of the political spectrum. Commonly referred to as the “swing vote,” Kennedy was a conservative-leaning justice appointed to the Court by President Ford; however, he sided with the liberal wing of the court on a fair amount of issues and cases over the years. Republicans were happy with the opportunity to cement a truly conservative majority on the Court, while Democrats became fearful that the liberal wing on the Court will shrink to a marginalized minority.

Shortly after Justice Kennedy’s announcement, President Trump announced that he would be nominating Judge Brett Kavanaugh to fill the vacancy. Kavanaugh has served as a judge on the District of Columbia Circuit of the Court of Appeals, having been appointed by President George W. Bush in 2006. Prior to serving on the D.C. Circuit, Kavanaugh also worked for Ken Starr during his investigation of President Clinton during the Monica Lewinsky scandal and for the Bush Administration as White House Staff Secretary.

In the lead-up to Judge Kavanaugh’s confirmation hearings, there has been a significant dispute between Senate Republicans and Democrats in what documents should be released for review. Democrats have requested a wide range of documents, including documents from Kavanaugh’s time working for both Ken Starr and the Bush Administration.

Republicans have pushed back on the Democrats’ request—especially regarding documents requested from Kavanaugh’s time as Staff Secretary. Republicans have criticized the request as obstructionist, arguing it is much too voluminous and that Kavanaugh should be judged primarily on his opinions written as a judge of the D.C. Circuit.

The truth—as usual—lies somewhere in the middle. There is no reasonable dispute that Kavanaugh’s time as Staff Secretary involved the distribution of a lot of documents that he had no role in writing or contributing to and that those documents would have little, if any, relevance to his qualifications to serve on the nation’s highest court. That being said, the position of Staff Secretary is more than that of a mere paper pusher, and any substantive documents that Kavanaugh authored or contributed to would be highly relevant to the Judiciary Committee’s inquiry.

Some middle ground needs to be reached.

A data dump of irrelevant documents or a fishing expedition would be obstructionist, but the dangers of over-restricting access to documents far outweigh any burdens from reviewing irrelevant documents.

Republicans would be wise to reach a compromise sooner rather than later. If Democrats hold up a vote citing Republicans’ refusal to allow proper review of documents, this could energize their base heading into the 2018 election, and independents could be turned off if they view Republicans’ actions as intentionally underhanded.

Additionally, failing to allow a full review of the documents could cause divisions among Republicans. Moderate Senators like John McCain (R- Ariz.) have previously questioned some of the actions of the Bush Administration, including its support of enhanced interrogation tactics. Failing to allow review of potentially controversial Bush Administration policies in which Kavanaugh was involved could cause friction within the Senate Republican caucus, which could be detrimental to Kavanaugh’s confirmation chances.

Given the potential shift in the ideological make-up of the Court, it is reasonable to expect that Democrats are going to be extra thorough in reviewing Kavanaugh’s qualifications. At times, that review could even cross over into obstructionism.

However, the consequences of overcompensating against obstructionism by unreasonably restricting the documents the Judiciary Committee will review is not the right solution. The American people deserve a Senate who will perform a thorough review of Judge Kavanaugh’s credentials and vote based on an objective analysis of his qualifications—nothing more and nothing less.