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Democrats are resorting to FOIA requests to vet Brett Kavanaugh

They’re going this route after getting stonewalled by Republicans.

Supreme Court Nominee Judge Brett Kavanaugh Meets With Lawmakers On Capitol HIll Photo by Alex Wong/Getty Images
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

Senate Democrats pushed back with FOIA requests on Wednesday against Republicans’ refusal to obtain documents from Supreme Court nominee Brett Kavanaugh’s time as staff secretary during the George W. Bush administration, members of the Judiciary Committee said.

FOIA, or Freedom of Information Act requests, enable any member of the public to ask for records from federal government agencies. They are often used by journalists to obtain records from different agencies, although businesses, nonprofits, and law firms have been known to leverage this tool as well, according to the Columbia Journalism Review.

Judiciary Committee Democrats are adopting this approach to get records from Kavanaugh’s stint as staff secretary. As part of the push, they’ve submitted their FOIA requests to the National Archives, the Department of Justice, the Department of Homeland Security, and the Central Intelligence Agency. Democrats have asked for expedited processing of this request, and called for a response from the National Archives about their request within 10 calendar days. A spokesperson for Republicans on the Senate Judiciary Committee did not immediately respond to a request for comment.

The reality is Democrats have little power to block Trump’s nominee to the Supreme Court. Republicans need only 50 votes to confirm a nominee, so if every sitting Republican votes for Kavanaugh, he’ll be confirmed. Plus, there are several red-state Democrats who have plenty of incentives to demonstrate that they are working with Republicans in Washington.

Depending on how you look at it, the FOIA requests are either a stalling tactic to avoid the inevitable or an important transparency move to scrutinize someone who will have an enormous say over policy in the United States.

Why are Democrats filing FOIA requests?

Democrats have suggested that unearthing documents from Kavanaugh’s time as White House staff secretary would offer a more complete record of the viewpoints he brings to the bench. (They’re also hoping that some of these documents might contain damning nuggets about his positions on controversial issues like presidential power, which could come in handy as ammunition during the confirmation process.)

Republicans, meanwhile, have noted that they’ve already broken records with the number of Kavanaugh documents they’re reviewing. Judiciary Chair Chuck Grassley (R-IA) moved forward with a separate records request that centered almost exclusively on the White House Counsel papers. He insisted that the staff secretary papers, which could number in the millions, aren’t pertinent to the confirmation process.

Democrats’ “bloated demands are an obvious attempt to obstruct the confirmation process,” Grassley said recently. In response, Democrats have pointed to testimony from Kavanaugh, who has said that his time in this role was a formative period for his judicial practice. The White House staff secretary helps manage communications and documents that are shared with the president and other senior administration officials, a position that’s been compared to serving as an “inbox and outbox.”

Democrats seem to think that the FOIA strategy is one of the few ways left to broach this impasse. “The extraordinary step of filing a FOIA is a last resort—unprecedented & unfortunate, but necessary to fully & fairly review Judge Kavanaugh’s nomination,” Sen. Richard Blumenthal (D-CT) wrote in a series of tweets explaining the action. “We need these documents to do our job.”

Sen. Patrick Leahy (D-VT) noted that this tactic has never previously been employed by the minority party as part of a Supreme Court nomination process. “I have been here for 19 Supreme Court nominations. Yet I’ve never seen the Senate forced to rely on FOIA to fulfill its constitutional duty of providing advice and informed consent to a president’s nominee,” Leahy said.

Time is running out before the November midterms

One of the main issues in this fight comes down to timing. Before Kavanaugh’s nomination had even been announced, Senate Majority Leader Mitch McConnell warned President Trump that a big stumbling block for the DC Circuit judge’s confirmation could be his extensive paper trail.

Because Kavanaugh has served for long periods as both a federal judge and a White House official, there is a massive archive of documents that he’s engaged with across these roles. In Senate tradition, it’s common practice to conduct a comprehensive review of a nominee’s relevant documents before going ahead with a hearing or vote. Analyzing and obtaining documents at this scale can take a solid chunk of time, however. And Republicans are racing to make sure Kavanaugh’s confirmation happens before any shake-ups can take place during the midterm elections.

This aggressive timeline is already facing some challenges. The National Archives have informed Grassley that they won’t be able to process his full request for documents from Kavanaugh’s work as White House counsel until the end of October, though his office has deflected any suggestion that this delay could affect plans for a September confirmation hearing. A Grassley representative has also emphasized that Republicans are working directly with representatives of the Bush library to more quickly mine these records.

If even more staff secretary documents were formally requested by the Judiciary Committee, that would only add to this existing backlog. And if the process for digging up and reviewing all of these documents were to drag on for much longer, it could affect the timing of Kavanaugh’s confirmation vote.

While it’s highly unlikely, this kind of delay could mean that the vote doesn’t happen until after the elections in November — an outcome that could give Democrats the opportunity to build up a possible Senate majority, or at the very least take the heat off vulnerable red-state senators.

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