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Q&A: The Senate’s feud over Kavanaugh records

September 4, 2018
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Sen. Cory Booker, D-N.J., and Sen. Kamala Harris, D-Calif., right, and other Democrats on the Senate Judiciary Committee appeal to Chairman Chuck Grassley, R-Iowa, to delay the confirmation hearing of President Donald Trump's Supreme Court nominee, Brett Kavanaugh, on Capitol Hill in Washington, Tuesday, Sept. 4, 2018. (AP Photo/J. Scott Applewhite)

WASHINGTON (AP) — Senate Democrats looking to win the battle of public opinion over Supreme Court nominee Brett Kavanaugh are essentially accusing Republicans of concealing evidence to ensure his confirmation before the midterm election.

The strategy was front-and-center as Kavanaugh’s hearing got underway Tuesday, with Democrats immediately calling on the committee to adjourn. They characterized the hearing as a “charade and mockery of our norms.”

Meanwhile, Republicans pointed to the huge number of documents released, the most ever for a Supreme Court nominee, to make the case that the review of Kavanaugh is “the most thorough and transparent confirmation process in history.”

Here is a look at what the two sides are fighting about:

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WHAT RECORDS ARE SENATORS REVIEWING?

The Senate Judiciary Committee has been able to review the more than 300 legal opinions Kavanaugh has authored and the hundreds more he has joined as a circuit court judge.

Republicans argue that those opinions are the most relevant records for determining a nominee’s judicial philosophy and fitness to serve on the nation’s highest court. But Kavanaugh’s paper trail goes beyond that, as he also worked in the George W. Bush White House and for independent counsel Kenneth Starr during the investigation of President Bill Clinton.

The Judiciary Committee has reviewed tens of thousands of documents from Kavanaugh’s work for Starr, including a memo he wrote urging lawyers on Starr’s team to ask aggressive and graphic questions of Clinton concerning his relationship with White House intern Monica Lewinsky. Another 267,000 pages of Kavanaugh documents from his time working in the Bush White House have been made public, with another 215,000 provided for viewing only by committee members.

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WHAT RECORDS HAVE NOT BEEN PROVIDED TO THE COMMITTEE?

Kavanaugh worked some five years in the Bush White House, first as legal counsel and then as staff secretary. It’s those records that are at the center of the dispute. Judiciary Committee Chairman Charles Grassley of Iowa declined to request Kavanaugh’s staff secretary records, which cover a 35-month period of Kavanaugh’s work that he has described as “among the most interesting and most formative” in his career.

The Trump administration is also withholding more than 100,000 pages of Brett Kavanaugh’s records from his tenure as legal counsel on the basis that disclosing the records would disrupt the functions or decision-making processes of the executive branch. Democrats denounced that decision Tuesday, saying there is no basis for those documents to be held back.

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WHY ARE REPUBLICANS MOVING AHEAD?

Grassley describes the documents sought by Democrats as “the least useful in understanding his legal views and the most sensitive” when it comes to the inner workings of the executive branch. Grassley says reviewing Kavanaugh’s staff secretary documents would “teach us nothing about his legal views.” For that, senators should rely on Kavanaugh’s legal opinions, speeches and articles, Grassley says.

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WHAT DO DEMOCRATS SAY ABOUT THE PROCESS?

Sen. Patrick Leahy of Vermont said about 4 percent of Kavanaugh’s White House records have been posted for the public to view and about 7 percent have been made available to the committee. That compares to 99 percent of Justice Elena Kagan’s records from her years at the White House being made available.

Sen. Dick Durbin said there is a “35-month black hole” in Kavanuagh’s career from which senators have been denied any and all documents. Democrats have attacked the records production on two fronts. They’re raising the question of whether Republicans are trying to hide something in Kavanaugh’s record. They’re also asserting that the Senate is “phoning in” its responsibility to carefully vet judicial nominees, calling the process a “sham.”

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ARE MORE RECORDS COMING IN?

Yes. The committee received 42,000 pages of documents Monday night. Democrats asserted that the lack of time to review those documents made the notion of properly vetting them “laughable.”

The National Archives is also preparing to release more than 1 million documents from Kavanaugh’s time in the White House counsel’s office. But Archives says the review of those records will not be finished until the end of October.

Republicans hope to confirm Kavanaugh by Oct. 1, when the Supreme Court’s new term begins.

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