What are the secret archives holding up Donald Trump’s Supreme Court nominee?

A judge for all seasons.
A judge for all seasons.
Image: AP Photo/Evan Vucci
We may earn a commission from links on this page.

Odds-makers are convinced that Brett Kavanaugh will be confirmed by the senate as the United States’ next Supreme Court justice; after all, the Republicans have the votes to push through the unpopular nominee virtually at will.

But Democrats and left-leaning legal groups are demanding that Kavanaugh’s confirmation vote wait for the release of a huge tranche of documents be released from the National Archives. The records, which date from Kavanaugh’s time as a top official in George W. Bush’s White House and a special prosecutor investigating president Bill Clinton, could shed light on his approach to certain issues.

Republican senators, including potential swing votes like Maine’s Susan Collins, say there is no need to wait. Some fear that delaying the controversial vote could influence November’s congressional elections.

If Kavanaugh is successfully confirmed, he and four other conservative justices could act as a majority on the Supreme Court. Legal observers fear that precedents like Roe vs. Wade might come under concentrated attack by such a bloc, just as the Voting Rights Act was successfully undercut.

The National Archives, meanwhile, says it just doesn’t have enough staff to produce these records until October. It is processing 900,000 pages of Kavanaugh-related documents, compared to the 70,000 it produced for Chief Justice John Roberts’ nomination or the 130,000 produced for Justice Elena Kagan.

The documents touch on the parts of Kavanaugh’s career that may seem least relevant to his work weighing legal arguments, but are most relevant to his nomination. As a long-time Republican operative, Kavanaugh has earned the trust of party apparatchiks as a reliable judicial nominee—he’s not on the Federalist Society’s shortlist of acceptable nominees simply because he was a good car pool dad.

Some Democrats are concerned that Kavanaugh misled them about his work on the Bush administration’s legal justification for torturing detainees, during a hearing for his confirmation as an Appeals court judge. Kavanaugh told senators then that he had no part in the policies despite reporting that he had, in fact, played a role. Those records in particular are under scrutiny.

His work on the Starr investigation into then-president Bill Clinton is also relevant; as a Supreme Court justice, Kavanaugh could be asked to weigh in on developments in special counsel Robert Mueller’s investigation into Russian 2016 election interference. In the nineties, Kavanaugh was part of a team that argued for Clinton’s impeachment for misleading the American people and failing to testify before investigators. After serving in the Bush administration, Kavanaugh distanced himself from those standards.

As a Starr deputy, he also wrote memos expressing his personal outrage at behaviors by Clinton that parallel those of Trump. One, preserved in the book ” The Death of American Virtue: Clinton vs. Starr” and excerpted at Vox, gives a taste:

[T]he President has disgraced his Office, the legal system, and the American people by having sex with a 22-year-old intern and turning her life into a shambles — callous and disgusting behavior that has somehow gotten lost in the shuffle. He has committed perjury (at least) in the [Paula] Jones case. … He has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush.

Democrats are eager to discuss such material and its contemporary echoes at public hearings. Republicans are eager to gloss over it. Given the cynicism about the court displayed by Republican leaders, particularly refusing an up-or-down vote to Barack Obama’s Supreme Court nominee Merrick Garland in 2016, you can expect realpolitik to win out over inquiry. Kavanaugh’s confirmation hearings have been scheduled for September.