Kavanaugh hearings set to begin Sept. 4

Senate Judiciary Committee Chairman Charles Grassley announced today that hearings on the nomination of Brett Kavanaugh will begin on September 4. He expects three or four days will be required to complete them.

This timetable may be sufficient to have the full Senate vote on Kavanaugh nomination in time for him to join the Court when its term begins on October 1. If not, then he should be able to join soon thereafter, assuming he’s confirmed.

If the hearings commence on September 4, that will be 57 days after the Kavanaugh nomination was announced. By way of comparison, hearings for Justices Sonia Sotomayor, Elena Kagan, and Neil Gorsuch occurred 48-49 days after the president announced their nominations.

(Merrick Garland never got a hearing. But unlike Sotomayor, Kagan, Gorsuch, and Kavanaugh, Garland was nominated by a lame duck president. And Garland didn’t have the votes to be confirmed, anyway. More likely than not, Kavanaugh does).

Democrats protest that when the hearings take place, they will not have all of the documents they want to see. However, as Grassley’s press release points out:

[T]he committee has received more than 184,000 pages of records from Judge Kavanaugh’s work as a White House lawyer and his work for Independent Counsel Kenneth Starr. The committee also expects to receive hundreds of thousands of additional pages of Executive Branch documents. These records will be reviewed in addition to the 307 cases in which Judge Kavanaugh wrote an opinion as an appeals court judge, the hundreds more opinions he joined, and the more than 17,500 pages of material he provided in response to the committee’s bipartisan questionnaire.

Because there are so many of them, Kavanaugh’s judicial opinions and the ones he joined are really all that’s required to assess his fitness to serve on the Supreme Court. He hasn’t been nominated to serve in the White House Counsel’s office. In any event, Democrats will have many hundreds of thousands of additional documents to review as they search for that gotcha sentence.

Democrats complain that, because the National Archives doesn’t have the resources to review most of the documents from Kavanaugh’s time as a lawyer in the Bush administration, a team of former Bush administration lawyers will control what is and is not produced.

Ed Whelan addresses this alleged concern. He argues, among other things:

[T]he president whose White House records have been requested is always part of the process. President Obama issued the executive order that governs the disclosure of presidential records under the Presidential Records Act. Consistent with the Act, that executive order authorizes a former president to make a claim of executive privilege regarding requested records, and it further specifies that executive privilege covers records that reflect “the deliberative processes of the executive branch.”

It’s hardly a surprise that a president would rely on trusted lawyers for this sensitive executive-privilege review. I haven’t seen any specific account of who led the review of Elena Kagan’s records on behalf of the Clinton White House. But the Clinton presidential library is operated by the Clinton Foundation, and the longtime head of the Clinton Foundation—including during the time of Kagan’s confirmation process—is Clinton loyalist Bruce Lindsey. Lindsey was assistant to the president and deputy White House counsel, and Kagan worked under Lindsey during her time in the White House counsel’s office. She also worked with him in her later position as deputy director of the White House domestic policy council.

If Bruce Lindsey didn’t personally manage the review of Kagan’s records, it’s farfetched to imagine that he didn’t have another Clinton loyalist play the role.

In the end, it doesn’t matter whether Democratic Senators, whose obstructionist aim could hardly be more transparent, like the document production process. As long as it satisfies Sens. Susan Collins, Lisa Murkowski, and the rest of the GOP caucus, it will be sufficient for purposes of confirming Judge Kavanaugh.

As far as I can tell, the document production satisfies Republican Senators, and it seems likely that the Majority Leader knows it does. The focus of Collins and Murkowski will be Kavanaugh answers to questions about Roe v. Wade and its progeny.

It looks like we will hear his answers beginning September 5.

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