Senators spar on access to Kavanaugh’s staff secretary work

As staff secretary, Kavanaugh was the person who controlled the flow of documents to and from the president, including ensuring relevant people weighed in and channeling the president’s questions and comments on that material to the right people. (Photo: United States Court of Appeals)

WASHINGTON — More than a decade after he served as what’s been called the president’s “inbox and outbox,” Brett Kavanaugh’s role as White House staff secretary to President George W. Bush has become a flashpoint as Republicans push his confirmation to the Supreme Court.

Democrats want to see records from the time, portraying the potentially millions of documents as vital to understanding his approach to the law. Republicans disagree and have accused Democrats of using the issue to try to delay Kavanaugh’s confirmation.

The debate could interfere with Republicans’ goal of swiftly confirming President Donald Trump’s pick for the court in time for the start of the new term Oct. 1. With the Senate control slimly held by Republicans 51-49, Democrats can’t block Kavanaugh’s nomination outright if Republicans hold together. Instead, Democrats are trying to delay the proceedings in hopes that time spent reviewing the judge’s record could unearth fresh concerns to sway senators’ opinions and upend voting.

Sen. Chuck Grassley, R-Iowa, the chairman of the Judiciary Committee tasked with holding hearings on Kavanaugh’s nomination, said this week that Democrats’ “bloated demands are an obvious attempt to obstruct the confirmation process.” And on Friday, after negotiations with Democrats failed to produce a consensus on what documents should be sought ahead of a hearing on Kavanaugh’s nomination, Grassley went ahead with a request to the Bush library for documents related to his work for the White House. The request seeks documents from Kavanaugh’s time in the White House Counsel’s office but not from his time as staff secretary.

Senate Minority Leader Chuck Schumer, D-N.Y., said Thursday that Kavanaugh himself has portrayed his three years as Bush’s staff secretary, from July 2003 to May 2006, as “the most interesting and, in many ways, among the most instructive” to his work as a federal appeals court judge. Schumer said if Kavanaugh sees it that way, “why shouldn’t the American people see what instructed him?”

For his part, Schumer on Friday released a letter to former president Bush calling on him to authorize the release of “the complete record of Judge Kavanaugh’s service in the White House.” And Sen. Dianne Feinstein, D-Calif., Democrats’ leader on the Judiciary Committee, said her own request for the staff secretary documents was being blocked by the National Archives.

As staff secretary, Kavanaugh was the person who controlled the flow of documents to and from the president, including ensuring relevant people weighed in and channeling the president’s questions and comments on that material to the right people. He was also a key part of the president’s speechwriting process, helped put together legislation and worked on drafting and revising executive orders, he has said. He also travelled with the president, at points sitting in on meetings between the president and foreign leaders.

While Kavanaugh was staff secretary, Bush made a range of controversial decisions, including signing into law a partial-birth abortion ban and backing a constitutional amendment banning gay marriage. Democrats say that time is relevant to Kavanaugh’s views and philosophy as a judge.

But Republicans argue the staff secretary documents aren’t useful because Kavanaugh’s job wasn’t to provide his own advice but to ensure others’ views were presented to the president. They say the papers contain the most sensitive White House documents, advice sent directly to the president. And they say the up-to-1 million pages of records they do expect to release will be the largest number of documents produced in connection with a Supreme Court nomination.

Karen Hult, a political science professor at Virginia Tech and the co-author of a paper on the staff secretary position for which Kavanaugh was interviewed in 2008, took a middle-ground view of the staff secretary documents’ value to lawmakers. Hult said the documents could include Kavanaugh’s notes and memos he wrote or commented on that went directly to the president or chief of staff, but she said it could be difficult to distill Kavanaugh’s own views from them. Kavanaugh’s judicial opinions would be more helpful in that respect, she said.

Still, “I wouldn’t say it’s a waste of time,” she said of looking at the documents. “I would say it’s not a high-priority use of time.”

Kavanaugh, meanwhile, has described his role as staff secretary as being an “honest broker for the president, someone who tries to ensure that the range of policy views on various subjects are presented to the president in a fair and even-handed way.” In an interview with Hult’s co-author, Kathryn Dunn Tenpas, Kavanaugh said it was important that he maintain “strict neutrality and impartiality” in bringing disagreements about the wording of proposals or decisions to the president.

Kavanaugh also said that during his tenure they started weekly meetings with Bush and a few others to discuss speeches. He said that allowed him to “better perform my function as referee” between speechwriters and policy advisers.

The debate over the staff secretary documents has been heated all week. On the Republican side, Grassley has said the most valuable documents revealing Kavanaugh’s legal thinking are his more than 300 judicial opinions, while the staff secretary documents are the “least relevant” to his legal thinking. Describing the staff secretary position as the “inbox and outbox of the Oval Office,” he said the occupant’s job is not to “provide his own substantive work product” but to ensure the president “sees memos and policy papers” produced by other White House offices. Reviewing the documents would be a “waste of time” and taxpayers’ money, he said.

On the Democratic side, Schumer has said that there is “simply no basis to withhold Judge Kavanaugh’s staff secretary record” from senators’ review. He accused Republicans of being against transparency. He said Wednesday of the position Kavanaugh is nominated for: “This is one of the most important positions in the world and certainly in America. Shouldn’t we know everything?”