Melissa Joskow / Media Matters
Republicans are rushing through the confirmation process in the Senate for Brett Kavanaugh’s nomination to the Supreme Court, while refusing Democrats’ demands for relevant documents from Kavanaugh’s work at the George W. Bush White House. This unprecedented behavior by Senate Republicans and the Trump administration should be a massive scandal, but instead is being played off in the media as just another battle between Democrats and Republicans.
The GOP has chosen to short-circuit the traditional, nonpartisan National Archives record review process -- which was expected to take until October -- and instead rely on Bush lawyer and former Kavanaugh deputy William Burck to oversee the document review process. Burck "turned over about about 415,000 pages to the [Senate Judiciary] committee, with about 147,000 of them withheld from public view." He released 42,000 additional documents to the committee just the evening before the confirmation hearings were set to start, with a classification preventing the contents from being referenced publicly. And, as The Associated Press reported, the Trump White House is withholding over 100,000 documents of Kavanaugh’s Bush administration records based on presidential privilege. But, as Senate Judiciary Committee ranking member Sen. Dianne Feinstein (D-CA) noted, only 4 percent of Kavanaugh documents will be available to the public:
The relevant number with regard to Brett Kavanaugh’s record is NOT the number of pages. It’s the PERCENTAGE of his record that’s available for the American people to see.
Elena Kagan: 99% available to the public.
Brett Kavanaugh: 4% available to the public— Sen Dianne Feinstein (@SenFeinstein) September 4, 2018
By contrast, as numerous people have noted, the Obama administration did not withhold a single document from the Clinton White House when Elena Kagan, who had served as associate counsel and in other positions in the Clinton White House, was nominated. Obama’s decision not to assert privilege was even noted at the time:
Greg Craig says on GMA that WH will turn over any Kagan docs Senate needs. No privilege fight. WH scrub must have come up very clean
— GeorgeStephanopoulos (@GStephanopoulos) May 10, 2010
From 2003 through 2006, Kavanaugh served as the White House staff secretary, in a position that functions as “a powerful gatekeeper of all information that reaches the president’s desk,” as a HuffPost article that interviewed past staff secretaries described it. “They have substantial influence over internal White House deliberations and the policymaking process,” the piece continued. Former Clinton staff secretaries John Podesta and Todd Stern wrote that the people who hold that position “are integrally involved in the decision-making process for an extraordinarily wide range of policy issues, since virtually everything comes to them before it goes to the president.” Kavanaugh himself said that the staff secretary job he held was “‘the most interesting and informative for me” as preparation for his current appeals court position. Karl Rove said on Fox that Kavanaugh was involved in every policy decision that the Bush administration made.
This is a complete break from tradition and should be a national scandal.
The secrecy surrounding large portions of Brett Kavanaugh’s records by Presidents George W. Bush and Donald Trump, and Senate Judiciary Committee Chair Chuck Grassley’s outright support of it, is something that should be a much bigger deal. https://t.co/6z03lxdgHf
— Chris Geidner (@chrisgeidner) September 1, 2018
And yet, media coverage does not reflect that reality. The core problem is a self-fulfilling sense of nihilism around Kavanaugh's confirmation -- journalists decided Kavanaugh couldn't be stopped, and therefore gave the issue almost no attention.
It's a self-fulfilling prophecy: Journalists think Kavanaugh can't be stopped, and as a result his nomination receives virtually no coverage. https://t.co/cwUJRMni8N
— Matthew Gertz (@MattGertz) September 4, 2018
Mainstream outlets have covered this refusal to provide documents as merely part of a chess match between Republicans and Democrats. One CNN segment from mid-August focused on back-and-forth between Democrats and Republicans concerning the documents, before zeroing in on the sheer number of documents provided so far -- without considering what documents are being withheld. On September 3, CNN and MSNBC segments that mentioned the withheld documents framed the lack of disclosures as a partisan matter before eventually pivoting to suggesting that Republicans have the votes to confirm Kavanaugh and that is that. ABC News and NBC News framed the matter as Democrats raising the alarm instead of focusing on the fact that the White House is the one taking action here.
Appearing on CNN, constitutional law professor Gloria Browne-Marshall chastised Democrats and the press for not being more creative in finding ways to force necessary disclosure.
This fleeting moment of straight talk was immediately followed by CNN’s Supreme Court reporter sharing Grassley’s perspective that it’s just too many documents to request and saying Democrats are arguing about the process, noting that conflict between Republicans and Democrats would “erupt” once hearings began.
Later in the evening, Anderson Cooper’s show did cover Republicans’ refusal to release documents before mentioning that Democrats were upset about the matter. Even so, the segment ended with analysis that Kavanaugh would still be confirmed.
As Brian Beutler pointed out, there is an outrage gear that the mainstream press is simply not using.
Maybe we can pretend like Kavanaugh transmitted these documents over personal email, so the cover-up can get the attention it deserves. https://t.co/8CTs9D1IyB
— Brian Beutler (@brianbeutler) September 3, 2018
Fox News has been even worse.
For example, on the July 31 episode of Fox News’ Special Report with Bret Baier, chief congressional correspondent Mike Emanuel pushed Grassley’s view about the number of documents, saying that the request “could really drag out this whole confirmation process.” Emanuel did it again on the August 3 edition of Fox News at Night, using Sen. Thom Tillis’ (R-NC) anecdote about how many of Kavanaugh’s documents they already have, suggesting that Democrats shouldn’t ask for more.
The few documents released hint at what bombshells could still be hidden. A 1998 memo that was recently released showed Kavanaugh wanted to ask then-President Bill Clinton very graphic questions about his relationship with Monica Lewinsky -- in contradiction to a 2009 law review essay in which he suggested that a president should be protected from such questioning. Kavanaugh’s views on this topic are of major importance as special counsel Robert Mueller’s probe focuses on the Trump team’s conduct during the presidential election. Additionally, as the New York Daily News reported on August 30, records from Kavanaugh’s time in the Bush White House show that he wanted to cap payouts to the families of the 9/11 terrorist attack victims at $500,000; the average payout ended up being $1.8 million. The American public, and the senators who are to vote on his nomination, is being deliberately kept in the dark on other possible controversial views from Kavanaugh. As New York Magazine’s Irin Carmon said on the morning of the first day of Kavanaugh hearing: “Any journalist would ask, what are you hiding? Why don't you want a full accounting of this nominee?”
One thing is certain. It is not, as Fox News contributor Lisa Boothe insisted on the network, “one of the most transparent processes in history.”