Yesterday’s first day of confirmation hearings for Brett Kavanaugh was a colossal embarrassment for everyone, save perhaps the nominee himself. It began with a series of sophomoric interruptions from protesters inside the Senate chamber–an undignified and unfortunate extension of our current national tantrum, which increasingly values volume and resistance over logic or civility. Watching the early minutes of the hearing, I kept waiting for a member of the committee–Chairman Grassley, or for that matter any of the Democrats within whose camp the protesters fell–to make explicit that such interruptions were entirely inappropriate and undignified. I waited in vain. As it was, the ongoing shrieks made it appear that no one really was in control of the moment.
It went largely downhill from there, culminating later in the day in an appalling libel of Judge Kavanaugh’s former clerk Zina Bash by social media trolls on the left, who accused Bash–a Mexican-born granddaughter of Holocaust survivors–of being a white supremacist. The whole event was a sad display of our dysfunctional politics, and a good example of the behavior that judges work to prevent in their own courtrooms.
Indeed, yesterday’s hearing sorely needed a presiding judge–an authority figure with some spine, wisdom, knowledge, and confidence. Nowhere was that better illustrated than during the interminable debate among committee members about the late-produced (or still withheld) documents relating to Judge Kavanaugh’s career.
To recap: More than 5,000 documents (constituting more than 42,000 pages) were released to the Senate Judiciary Committee on Monday night, with the hearings scheduled to begin the next morning. Notwithstanding the late delivery, Senator Grassley’s office tweeted just hours later that it had completed its review and was ready to proceed with the hearing on Tuesday. Senator Chuck Schumer disagreed in a tweet of his own, arguing that “Not a single senator will be able to review these records before tomorrow.”
Separately, more than 27,000 documents (constituting about 100,000 pages) from Judge Kavanaugh’s time in the George W. Bush administration have been withheld by the Justice Department and the Trump White House. A third set of documents have not been produced because, according to lawyers for the Bush administration, they were never requested. An excellent summary of the entire missing documents debate is available from the Lawfare Blog.
Democrats claim that the heretofore unproduced documents are essential, as they might go to Judge Kavanaugh’s views on important legal questions, including those that might impact his view of presidential power. Republicans counter that the committee has been provided with more than 400,000 pages of documents, including the most important–such as Kavanaugh’s 300 judicial opinions.
Both sides have a point here. For a confirmation hearing of this importance, one would like to feel that all relevant information has been reviewed. And the President’s joy in making things difficult for everyone, all the time, has not helped his credibility in withholding the documents. But if there was little explanation from the White House as to why the documents were not forthcoming, there was equally little explanation from Senate Democrats as to why the documents were absolutely necessary.
Trial judges know how to deal with disputes like this, because there is a clear rule in place. In civil cases, parties are generally entitled to discover all information from the other side as long as it is relevant to any party’s claims or defenses. The two main exceptions are (1) if the information is privileged (attorney-client communications, for example), or (2) producing the information would be disproportionate to the needs of the parties and the case. Federal Rule of Civil Procedure 26(b)(1) provides, in relevant part:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Now not every aspect of that rule is directly applicable here, but the general idea surely is. The presumption is that all relevant documents should be produced. Given that the White House has not explicitly asserted privilege for the documents it is withholding, the Republicans’ strongest claim is that further production would delay the hearings, would likely be duplicative of what has already been produced, or would otherwise be irrelevant. The Democrats could counter by explaining why they believe additional documents would provide meaningful information beyond the wealth of data they already have on the nominee–including Kavanaugh’s own lengthy set of answers to earlier written questions, several years’ worth of opinions and other writings, and individual face-to-face meetings with the nominee.
Put differently, would these additional documents really influence any senator’s decision as to whether to confirm Judge Kavanaugh? If the answer is yes (or potentially yes), they should be released and reviewed. There is no need to delay hearings very long–senators have teams of staffers that can help them review documents in (relatively) short order. But if the answer is no, and the cries for more information are really just an attempt to stall the hearings in order to slow down Kavanaugh’s ascendance to the Court, the hearings should proceed without delay.
Yesterday’s sound and fury brought us no closer to answering the real questions. A good judge would have cut through the pointless oratory and moved right to the heart of the matter.
We do not have a judicial figure running these hearings, which are pure politics in its worst sense. But maybe we should.
The Interdependent Third Branch 