The National Archives said today it won’t be able to produce the full cache of documents regarding Brett Kavanaugh that Senate Republicans have requested. The documents in question are all of those from Kavanaugh’s time as an associate White House counsel under George W. Bush.
Apparently there are at least 900,000 such documents that need to be reviewed. The Archives says it will be able to review only about one-third of them by mid-August, the time by which Senate Judiciary Committee Chairman Grassley said he wanted to receive the entire load.
Presumably, the hearing on the Kavanaugh nomination cannot commence until all documents are produced. Senators will also need time to review the documents in advance of the hearing. However, I imagine the documents can be produced in batches, so that hearings can commence in early November.
This would give the Senate enough time to confirm Kavanaugh by the end of the year, but would mean that he could not participate in a large chunk of the Supreme Court’s docket next term. It would also give Democratic Senators in red states an excuse for not taking a position on the Kavanaugh nomination before they are up for reelection in early November.
Before President Trump selected his nominee, Majority Leader McConnell Senate Majority Leader reportedly warned the White House that Kavanaugh’s massive “paper trail” would slow down his confirmation process. McConnell was right.
However, it should be possible to get the documents to Senators much more quickly than the Archives review process permits. According to the Washington Post, President Bush has authorized making the Kavanaugh documents available, and a group of lawyers, led by Bush’s presidential records representative, is reviewing them. More than 50 lawyers from three different firms are participating. The Bush records review team has already reviewed 125,000 pages and handed them over to the Senate Judiciary Committee.
Sen. Chuck Schumer objects that the Bush records team might withhold documents the Archives would be willing to produce. However, there is no reason to assume bad faith by the review team.
And even if one is concerned about this possibility, one solution would be to have the Archives folks review any documents the Bush team says should be withheld. Presumably, that would be a small batch of papers.
Schumer’s goal is obstruction, and the massive amount of documents Grassley has asked for gives him an opening. However, it should be possible to close it.
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