Democrats Cry Foul Over Release of Kavanaugh Documents, Despite Precedent Set With Kagan

Senate Minority Leader Chuck Schumer (D., N.Y.) / Getty Images
August 14, 2018

Senate Democrats are complaining about the source of documents pertaining to Supreme Court nominee Brett Kavanaugh, saying they won't accept the records unless they are produced by the National Archives, but Democrats didn't have a problem with documents coming from another source when it came to Justice Elena Kagan's confirmation in 2010.

Democrats have expressed concern that William A. Burck, a former colleague of Kavanaugh's in the George W. Bush administration, has provided copies of documents instead of the records coming directly from the National Archives and Records Administration (NARA), which has stated it will take months, and in some cases years, to produce its copies for the Senate to review. The materials in question are a collection of data and documents relating to Kavanaugh’s service in the White House Counsel’s Office during the Bush administration. The nominee served as staff secretary in the administration from 2003 to 2006.

The documents are being released by Burck as Bush's Presidential Records Act representative, a position he has served in since 2009. The lawyer noted in a letter to Senate Judiciary Committee chairman Chuck Grassley (R., Iowa) that the records were originally provided to the Bush administration from NARA.

On behalf of former President of the United States George W. Bush, we enclose an initial production of 45,083 documents totaling 125,035 pages from the presidential records of the Bush Administration. These documents were collected from data and documents relating to Judge Brett M. Kavanaugh’s service in the White House Counsel’s Office during the Bush Administration that were provided by the National Archives and Records Administration (NARA).

Burck also noted Bush is under no obligation to release the documents. The records in question would not ordinarily become public without Bush's consent until 2021 under the Presidential Records Act.

"President Bush is under no obligation to produce records of his Administration but has authorized this production to assist the United States Senate Committee on the Judiciary in its assessment of Judge Kavanaugh’s nomination to the United States Supreme Court and to advance education and research about his Administration," Burck said in his letter to Grassley.

Some Democrats, however, have expressed displeasure over Burck's involvement in the documents' release.

"Take note: Unless it was produced by the National Archives, every document you see from Judge Kavanaugh’s White House tenure was selectively chosen for release by his former deputy, Bill Burck. This is not an objective process," Sen. Richard J. Durbin (D., Ill.) wrote on Twitter.

While Democrats have complained about Burck's involvement, Kavanaugh's supporters argue the outcry is simply a move to delay the confirmation process–Grassley announced last week confirmation hearings will begin Sept. 4. And, indeed, Democrats did not have a problem in 2010 with utilizing documents from a non-NARA source after President Barack Obama nominated Kagan to the Court. Records from Kagan's time working for the Bill Clinton administration were sent to the Senate not from NARA, but from former Clinton aide Bruce Lindsey. Lindsey was the White House deputy counsel during the Clinton administration and was President Bill Clinton's "Mr. Fix-It."

Time Magazine reported on Lindsey's role during the Clinton administration.

"His nicknames have run the gamut from ‘the Enforcer’ ‘the Consigliere,’ the Sicilian word for a trusted counsel to a Mafia chieftain," Time reported. "He is, by most accounts, Clinton's closest confidant apart from the First Lady."

Burck, in comparison, was appointed by Bush before his administration ended to be his Presidential Records Act representative. In that role, Burck reviewed and provided access to Bush papers during the Neil Gorsuch nomination, and he responded to inquires about records from the Obama White House and from Congress during the Obama administration.

Republicans have also argued the massive release of documents from the nominee's time as staff secretary isn't particularly relevant. They argue the documents relate to Bush’s decisions rather than to Kavanaugh’s and that, in contrast, the nominees' 300 judicial decisions provide direct insight into his judicial thought.

Senate Minority Leader Chuck Schumer (D., N.Y.) has nevertheless argued the documents should be released, but says Burck is "cherry-picking" which records are made available to the Senate.

"Not only is a massively conflicted Republican lawyer, who previously worked for Judge Kavanaugh, cherry-picking what documents the Senate Judiciary Committee can see, he is now telling the committee what the rest of the Senate and the American public can see — and Republicans are playing along. We are seeing layer after layer of unprecedented secrecy in what is quickly becoming the least transparent nominations process in history," Schumer said in a statement.

Republicans have turned over a record number of documents pertaining to Kavanaugh; 195,000 pages of documents, so far, and 307 published judicial opinions of Kavanaugh's have been provided to the Senate Judiciary Committee. Hundreds of thousands of additional documents will be made available to the committee and public in the coming weeks. In comparison, some 170,000 pages of documents were made available in response to Kagan's nomination.