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Commentary Law and Policy

Why House Democrats Are Demanding Brett Kavanaugh’s Records

Katie O’Connor

What do we expect to get from these documents? First and foremost, Kavanaugh’s full views on abortion, which remain hidden as long as his records do.

Last week, House Judiciary Committee Chair Jerrold Nadler (D-NY) and Subcommittee Chair Hank Johnson (D-GA) sent a letter to the National Archive requesting all of the records from Justice Brett Kavanaugh’s tenure in the George W. Bush White House. In normal times, a review of those records would have taken place last year, before Kavanaugh was elevated to a lifetime appointment on the country’s highest court.

But, to state the obvious, these are not normal times.

So instead of allowing for, or insisting upon, a thorough vetting of Kavanaugh prior to his confirmation, Senate Republicans conducted a sham process that deprived the American people of 92 percent of Kavanaugh’s records—and of answers to still-burning questions about whether he is ultimately fit to serve on the U.S. Supreme Court.

During last year’s confirmation process, the Republican-led U.S. Senate requested and reviewed a mere fraction of Kavanaugh’s recordsjust 415,084 of the estimated 3.85 million total pages of documents—from the George W. Bush administration. The documents it was able to review were provided by Bush’s personal lawyer instead of by the nonpartisan professionals at the National Archives and Records Administration.
 As a result, the only records seen by the Senate Judiciary Committee were hand-picked and screened by the same lawyer who represents the likes of Don McGahn, Reince Priebus, and Steve Bannon—and only a subset of that limited, partisan production was made available to the public. The National Archives itself did not provide a single page of records from Kavanaugh’s service in the White House.

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That’s why Demand Justice joined a coalition of 26 progressive organizations in April to petition the new Democratic majority in the House to right this wrong by using its authority to request the records concealed by Senate Republicans. Nadler’s letter answered that call.

Kavanaugh’s supporters will surely view this enterprise as sour grapes. They will accuse House Democrats—and organizations like mine that are supporting their efforts—of being sore losers who refuse to move past the theft of a Supreme Court seat by a ruthless Republican majority. But they’re dead wrong. Now that Kavanaugh holds a unique position of trust on the nation’s highest court, we are as entitled to a thorough review of his record as we have ever been.

Perhaps more importantly, a majority of the American public is still acutely skeptical of Kavanaugh and is eager for such review. A recent poll found that 58 percent of respondents think the National Archives should release the hidden Kavanaugh documents.

So what do we expect to get from these documents, once they’re shared with the House and released to the public? First and foremost, Kavanaugh’s full views on abortion, which remain hidden as long as his records from the Bush White House do. After all, during his time as staff secretary the first-ever federal ban on abortion was signed into law—but we have no idea if Kavanaugh was involved in the Bush administration’s support for it

Since Kavanaugh’s confirmation last fall, dozens of state legislatures responded by rushing to enact extreme anti-abortion laws that seek to overturn the core holding of Roe v. Wade. This comes as no surprise, since President Trump repeatedly promised on the campaign trail that Roe would be overturned “automatically” once he had his choice of justices on the Court. Kavanaugh might soon fulfill this promise, coming to the Court with the endorsement of the Federalist Society and a host of anti-choice organizations and with past opinions, speeches, and writings that indicate a deep-seated hostility toward Roe.

The public’s faith in the independence of the judiciary depends on the impartiality of judges and justices. Before the Supreme Court hears any one of the myriad abortion-related cases making their way through the lower courts, the public deserves an opportunity to review Kavanaugh’s full record to determine when his impartiality should be questioned and when he should be expected to recuse himself.

We also hope to get answers about whether Kavanaugh lied under oath when he testified before the Senate Judiciary Committee in 2004, 2006, and 2018. During all three hearings, Kavanaugh seemed to lie about issues large and small, from whether he was involved in the confirmation of controversial judges to whether he knew he was using documents that had been stolen from a Democratic staffer’s computer. The complete set of records from his time in the George W. Bush White House should shed light on these issues and settle, once and for all, whether the most junior justice of the United States Supreme Court perjured himself in the process of achieving that position.

In the history books, Kavanaugh will probably always be a Supreme Court justice with an asterisk beside his name—and he’ll mostly have Senate Republicans to thank for it. He joined a Supreme Court that was already profoundly broken, entering the ranks of an elite nine-member entity—four of whose members were appointed by presidents who lost the popular vote. And though Republicans went to unprecedented lengths to secure a seat for his colleague, Justice Gorsuch, Kavanaugh has the distinction of being the justice confirmed by the narrowest margin in modern history. He was deeply unpopular, in no small part because we asked the right questions and haven’t gotten the answers on everything from perjury to sexual assault allegations.

There is no way to fully undo the damage that has been done to the legitimacy of the Supreme Court, but House Democrats have an opportunity to expose the true Kavanaugh to the U.S. public. It’s a great first step, and we’re glad they’re taking it.

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