Newly released documents illuminate little from Trump's Supreme Court nominee

The Senate Judiciary Committee on Thursday began releasing a small slice of documents related to Supreme Cou...

Posted: Aug 10, 2018 10:38 AM
Updated: Aug 10, 2018 10:38 AM

The Senate Judiciary Committee on Thursday began releasing a small slice of documents related to Supreme Court nominee Brett Kavanaugh's work in the early 2000s for President George W. Bush, including the administration's response to the September 11 attacks.

While the documents make evident the kinds of issues that crossed Kavanaugh's desk -- from anti-terrorism measures to victims' compensation to judicial selection -- they shed virtually no new light on his legal thinking or stands on issues.

Brett Kavanaugh

George W. Bush

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The distribution comes one month after President Donald Trump chose Kavanaugh, a 53-year-old US appeals court judge, to succeed retired Supreme Court Justice Anthony Kennedy and as a fight brews between Senate Republicans and Democrats over access to Kavanaugh's records.

One likely point of contention in Kavanaugh's confirmation hearings would be any behind-the-scenes involvement in the Bush administration's torture and other detainee policies after the terrorist attacks. Nothing in Thursday's materials shed light on that subject.

Kavanaugh was deeply involved in the screening of candidates for lifetime positions to US lower courts, yet the documents released so far do not illuminate his work on judicial selection.

About 5,800 pages were made public. The committee said it expects to electronically disseminate more than 125,000 pages in upcoming days covering the time that Kavanaugh served in the White House counsel's office, 2001-2003.

The release will not include documents from Kavanaugh's time serving as White House staff secretary from 2003-2006, as Senate Democrats have demanded. Republicans have asserted that such records would not be useful in determining how Kavanaugh would rule as a Supreme Court justice.

Yet, in the latter position, Kavanaugh worked closely with Bush on the selection of Supreme Court justices, the response to Hurricane Katrina and other policy priorities. All told, documents from a nominee's earlier work can sometimes be more revealing than the carefully choreographed public testimony that has defined Senate hearings in recent decades. They can offer a window into thinking on important social issues and interactions with colleagues.

The current vetting process of National Archives materials has also prompted Democratic complaints. Kavanaugh's records are being screened by a group of lawyers working for Bush and by a team of lawyers from the Department of Justice. Democratic senators say the current process risks the omission of materials that would reveal Kavanaugh's true record.

But Senate Judiciary Committee Chairman Chuck Grassley says the Bush screening allows the committee to speed up the documents' release as the National Archives goes through its own set of presidential records to determine which materials can be made public

The Senate Judiciary Committee has yet to schedule the Kavanaugh hearings, but Trump have said they want Kavanaugh on the court by October 1 when the justices begin their new term.

Many of the Kavanaugh documents so far reviewed touch on a "war on terror" report, 9/11 talking points and a then-new Osama bin Laden tape. But a significant portion involved news clippings shared among White House staff. In some cases, long lists of recipients copied on mass emails stretched for pages within the documents. A small portion of the emails included in the release appeared to be initiated by Kavanaugh himself. Those personal emails largely touched on routine office matters or offered personal quips.

Two days after the September 11 terrorist attacks, Kavanaugh is asked what constitutes a "presidential record," and whether handwritten notes and contact lists are included. His views on this question would no doubt be of interest to observers, yet no answer from him appears in this batch of documents.

In one email exchange, Kavanaugh was asked to participate in congressional hearing preparation for the attorney general covering many issues including attorney-client privilege, military tribunals and racial profiling. He responds, "I am happy to help out with this on the attorney-client issue, but you should obviously handle tribunals."

In separate exchange, Kavanaugh quipped about a line by 9th US Court of Appeals Judge Barry Silverman. It centered on a right to procreate by artificial insemination while in prison and Silverman said in a dissenting opinion, "this is a seminal case in more ways than one." When a colleague sends it to Kavanaugh, he quips, "So much for his Supreme Court chances."

The documents, while rarely including the full Q-and-A between Kavanaugh and colleagues, nonetheless introduce several people who once worked in the Bush administration or crossed its path, such as current Solicitor General Noel Francisco, newly appointed US appeals court Judge Don Willett, and some who are now household names. In one 2003 email, Kavanaugh references a colleague who is a "top aide to FBI Director Robert Mueller." In another from 2003, the subject line is "Giuliani," followed by the question, "what's status of Giuliani op-ed placement?"

The Senate Judiciary Committee has acknowledged that the Bush screening team decided which records to disclose for public review. In a letter obtained by CNN, a Bush representative said its group considered which documents would not violate privileged communications.

The Bush screening team representative, lawyer William Burck, has told Grassley that the National Archives is still reviewing whether the public release of other screened documents "would be appropriate."

The Archives is separately conducting its own review of Kavanaugh documents but has said it would need until October to provide the documents. Grassley wants to hold confirmation hearings in September.

This story has been updated to include additional developments.

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