Department of Defense Appropriations Act, 2019--Continued

Floor Speech

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Mr. GRASSLEY. Mr. President, as I have now for several weeks spoken to my colleagues about the nomination of Judge Brett Kavanaugh, I return to further elaborate on where we are in that process.

Two weeks from today, Judge Brett Kavanaugh will appear before the Senate Judiciary Committee for the first day of his confirmation hearing. I am quite excited to finally hear from him in that forum. He is one of the most qualified nominees to have ever been picked for the Supreme Court, and he has contributed a great deal to his community and the legal profession, besides being an outstanding judge on the DC Circuit Court of Appeals.

Apparently, the other side has found very little in his record that is objectionable. The only thing I keep hearing is their unprecedented demand for millions and millions of pages of irrelevant documents on top of the hundreds of thousands of pages we have already received. Indeed, the Senate Democratic leaders have demanded the search of every email and every scrap of paper from every one of the hundreds of White House aides who came and went for the entire 8 years of the George W. Bush Presidency. The Senate Democratic leaders have even refused to utilize search terms-- and other ways--in order to limit the universe of millions and millions of pages of records that would require a consecutive review by the Archives and both the former and incumbent Presidents' teams of lawyers even before the Senate Judiciary Committee could have begun its own search. These reviews would have taken many months, and some people have said they would have taken beyond this year.

We know the true reason for their unprecedented document demand, which is to deny Judge Kavanaugh's confirmation until after the midterm elections, when the Senate Democrats hope to win back the Senate and block Judge Kavanaugh's nomination forever.

Democratic leaders announced their opposition to Judge Kavanaugh immediately after he was nominated. Can you believe that? Some Senators announced their opposition to any one of the 25 potential nominees before the President even announced he was picking Judge Kavanaugh. The minority leader said he would oppose Judge Kavanaugh with everything he has.

This desire to obstruct the entire process explains their partisan push to bury the Senate Judiciary Committee in a mountain of irrelevant paperwork. They also want to divert attention from the very impressive record Judge Kavanaugh has. Democratic leaders know Judge Kavanaugh is the exact type of Justice the American people want. By the way, when he was a candidate--way before his election--the President named the people whom he was going to appoint and the types of people he was thinking.

Judge Kavanaugh has served for 12 years on the DC Circuit Court of Appeals. During that time, he has authored more than 300 opinions and has joined in hundreds of others. In 13 separate cases, the U.S. Supreme Court has adopted legal positions that have been advanced by Judge Kavanaugh's opinions on the DC Circuit. That is a very impressive record that few people on the circuit court of appeals can claim.

The majority's staff on the Senate Judiciary Committee has already received more than 10,000 pages of judicial opinions Judge Kavanaugh wrote or joined, more than 17,000 pages of materials Judge Kavanaugh provided in response to the most robust questionnaire ever submitted for a Supreme Court nominee, and more than 260,000 pages of emails and other records from Judge Kavanaugh's executive branch legal service. This morning, the committee received close to 170,000 pages of additional records from Judge Kavanaugh's executive branch legal service. We now have more than 430,000 pages from Judge Kavanaugh's time in the executive branch--by far, the most ever received for a Supreme Court nominee. The majority's staff will finish reading every one of these pages before Judge Kavanaugh's hearing, which will start the day after Labor Day.

I am following the precedent that was established during Justice Kagan's confirmation, when the Senate asked for many but not all of Justice Kagan's executive branch documents. We received documents from two out of three executive branch positions that Justice Kagan held. We received documents from Justice Kagan's time in the White House Counsel's Office and on the U.S. Domestic Policy Council. Senators from both parties agreed not to request internal documents from her time in the Office of the Solicitor General because of their sensitivity. Likewise, then, we are asking for documents from two of Judge Kavanaugh's positions in the executive branch but not from a third, which follows the practice of Justice Kagan's confirmation.

We have asked for documents from Judge Kavanaugh's time in the White House Counsel's Office and the Office of Independent Counsel, but we didn't ask for documents from his time as Staff Secretary because, even more so than Justice Kagan's Solicitor General documents, they are incredibly sensitive to the executive branch. I will add that both positions for which we requested Judge Kavanaugh's documents were legal positions. Those documents could shed some light on his legal thinking.

The Staff Secretary, another position that Judge Kavanaugh held at the White House, is a nonlegal position, and it wouldn't reveal anything about Judge Kavanaugh's legal thinking.

On the other hand, we didn't receive documents from Justice Kagan's time in one of the two legal positions that she held. We didn't receive her Solicitor General documents, despite a heightened need for them to assess Justice Kagan's legal thinking. After all, Justice Kagan had no legal or judicial experience. In other words, she was not a judge prior to going to the Supreme Court, as Judge Kavanaugh is.

In contrast to Judge Kavanaugh's 12-year judicial track record, the 307 opinions Kavanaugh wrote, and the hundreds more he joined, Judge Kagan wrote or joined zero opinions. Judge Kavanaugh wrote or joined over 10,000 pages of judicial opinions, compared to Justice Kagan's zero pages. In short, we have received many more pages of more relevant documents for Judge Kavanaugh than we did for Justice Kagan.

This more thorough and more transparent production is also on top of the thousands of pages of Judge Kavanaugh's publicly available materials, including his extensive and impressive judicial record. Nevertheless, Democratic leaders accuse me of hiding documents. Consider the hundreds of thousands that are available, and I am being accused of hiding documents.

They are doing that because I have agreed to hold some documents as committee confidential. But during Justice Kagan's and Justice Gorsuch's nominations, we agreed to receive as committee confidential documents that contain material that are restricted by the Federal law that we call the Presidential Records Act.

As the current chairman, that is exactly what I have agreed to do this time. As I have explained many times over the last month, I agreed to receive documents on a committee-confidential basis as an initial matter to allow the committee to accelerate our review of Judge Kavanaugh's record, while at the same time making sure that restricted material, such as Social Security numbers for individuals, bank information for individuals, or confidential advice given to the President, are not exposed to the public, as everybody would expect us to be that careful.

Then-Chairman Leahy also agreed to receive documents on a committee- confidential basis in 2010 ``to permit the Committee prompt access to them.'' I have done exactly the same thing in the case of Judge Kavanaugh.

All of those documents don't necessarily remain confidential forever because there is a process. They are reviewed a second time, and if they don't contain any material restricted by law for public access, we quickly release those documents to the public. Thus, we end up in exactly the same place as we did with Justice Kagan and Justice Gorsuch: Material restricted by the statute is held committee confidential, while nonrestricted material is released to the public.

I would like to add that all documents we have received, including committee-confidential documents, at this very moment are available to every Member of the Senate. My staff is happy to make these documents available to any Senator interested in reviewing them.

Now, my friends on the other side of the aisle complain that a lawyer by the name of Bill Burck, rather than the National Archives, is deciding what is considered restricted, but that is not true at all. The National Archives has been reviewing Judge Kavanaugh's emails, as I requested. These archivists are public employees, and they have informed President Bush and President Trump that, in the opinion of the professional archival staff, nearly two-thirds of the emails that these public servants have reviewed thus far contain restricted material and should not be released to the public. That means that under the same standard applied to Justice Kagan and Justice Gorsuch, the Committee will have to hold two-thirds of the documents reviewed by the National Archives as committee confidential when we receive them.

Following historical practice, official records generally are produced to the Senate for our review, and personal records generally are not. The Obama-appointed Archivist of the United States and his team of career archivists are making the ultimate decision on whether Judge Kavanaugh's executive branch records are official-- available to the committee and to the public--or personal. It is simply absurd to suggest that anyone is hiding anything. So I hope I don't hear that complaint anymore.

I hope my colleagues on the other side of the aisle put aside politics and reconsider their reckless demands for the immediate release--for the whole world to see--of documents that contain full names, dates of birth, Social Security numbers, bank account numbers, personal communications with family members, other sensitive matters affecting personal privacy, and, of course, some of the more sensitive issues related to the President's core constitutional duties.

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