Sen. John Cornyn (R.-Texas) described it this way: “Well, you might call this the great paper chase.” The senator was not referencing the 1971 novel or the 1973 movie or the 1978-79 television series each named The Paper Chase and based on goings-on at the Harvard Law School. Instead, he was referring to the process of retrieving the massive paper trail left by U.S. Appeals Court Judge Brett Kavanaugh.
Despite the fact that public hearings for Kavanaugh will begin on Sept. 4 (the day after Labor Day) Senate Democrats insist that the judge’s entire back catalog of written work -- like going back to the vaults to recover all of The Rolling Stones original recordings on tape since 1962 -- be made available to them before a vote is made in the full Senate on his Supreme Court nomination. Democrats aim to delay any vote until after the mid-term elections holding out hope that they may retake the Senate. (Currently, Republicans control the chamber, with 51 members; no date is set for the Senate vote.)
However, recalcitrant Republicans counter that determined Democrats are behaving like paper wasps, gathering dead wood not to build a nest of objective information, but, rather, to build a rickety narrative about Kavanaugh in order to defeat his placement on the high court. Save for hope, Democrats -- notwithstanding the upcoming public hearings -- are using a bold new tactic to spur the vetting process in their favor. And it’s a long shot.
They actually filed several FOIA requests.
FOIA stands for “Freedom of Information Act” and became federal law in 1967. The act, says foia.gov, “has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government.” There are more than 100 agencies subject to FOIA requests. Last year, according to the Office of Information Policy of the Department of Justice, government agencies received over 820,000 requests.
The Hill reports that Democrats submitted requests to the CIA, the National Archives, the Department of Justice and the Department of Homeland Security for documents “tied to Kavanaugh's three-year period as staff secretary for President George W. Bush.” Democrat petitioners have also asked for an expedited response given the enormity of the paperwork sought.
It is estimated that these documents could be in excess of 1 million pages, notes USA Today. By comparison, senators had far fewer records to review under two past justice to be confirmed to the high court (182,000 pages of documents on Neil Gorsuch and about 170,000 pages on Elena Kagan). More documents will be produced about Kavanaugh than any other nominee in history, said Senate Judiciary Committee Chairman Chuck Grassley (R-IA).
Judiciary member Sen. Richard Blumenthal (D.-Conn.) called the FOIA requests an “extraordinary step,” “unprecedented” and a “last resort.” The senator also believes that this action has never been done with regard to a Supreme Court nominee. Blumenthal told MSNBC’s Rachel Maddow that Senate Republicans are “hiding” and “concealing” Kavanaugh documents.
But as Gabby Morrongiello wrote in The Washington Examiner, “Normally, records from Kavanaugh's time in the White House would be protected by the Presidential Records Act, which allows former presidents to keep their White House files secret for up to 12 years after leaving office.” President Bush left office, in January 2009.
The National Archives is indeed screening nearly 1 million of these pages to ensure none of the material is subject to executive privilege under the Act. “It says,” reports npr.com, that the review “will not be completed until the end of October.” As a consequence, Senate Republicans have moved to obtain documents directly from Bush’s legal team in order to expedite the process.
Republicans, meanwhile, argue that all this Democratic bluster is merely political stagecraft.
They recall that during Kavanaugh’s 2006 nomination as a judge to the U.S. Circuit Court of Appeals, Democrats then never demanded such a ferocious examination of his paperwork related to his White House work. Last week, Grassley released nearly 5,800 pages of documents from Kavanaugh's tenure as associate White House counsel to Bush. Already, the Judiciary Committee has received over 125,000 pages of these type of documents. And the committee is expected to release substantially more documents in the coming weeks.
Finally, Republicans say -- professing mock horror -- that Democrats are also acting disingenuously. They contend that Senate Democrats announced their opposition to Kavanaugh immediately after his nomination, without regard for the need for extensive review of documentation before such opposition.
In an op-ed for The Wall Street Journal, Grassley comments, “It stands to reason that Senator Schumer wasn’t too concerned about Judge Kavanaugh’s record before he announced his opposition. Why is it so important to Senator Schumer now?” Further, with regard to documents already in the public domain, “How much more do Democratic leaders need to know when they’re already voting no?”
Democrats are essentially saying that they detest Mick Jagger but need to listen to all his music to confirm their disdain.
After the final vote on the judge by the full Senate, it would be understandable if Kavanaugh acted as the character Hart did at the end of The Paper Chase novel: Where the finally tally of grading was pitched off in a form of a paper airplane -- a metaphor, perhaps, of a scoring and vetting system that should be thrown out.
The judge will have many papers from which to build his aircraft.
James P. Freeman is a New England-based writer who writes the Word Wise column for Inside Sources. He is a former columnist with The New Boston Post and The Cape Cod Times. His work has also appeared in The Providence Journal, The Cape Codder, newenglanddiary.com, golocalprov.com, and nationalreview.com.