National Review Online blogger Hans A. von Spakovsky has published a thousand-word blog post urging that Senate delay the confirmation hearing for Elena Kagan. Not only are his arguments based on distortions and misinformation, but a key part of his argument -- that the Senate has not had sufficient time to review Kagan documents produced by the Clinton Library -- has just been refuted by the lead Senate Judiciary Committee Republican, Jeff Sessions (AL).
Von Spakovsky begins his blog post by complaining that there has not been enough time to review the documents that have been released:
The Senate hearing for Supreme Court nominee Elena Kagan starts on Monday, June 28. Sen. Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, has refused Republican requests to delay the hearing. The Republicans have a very good and justified reason for that request -- the huge number of documents that they have just been inundated with, a volume of material so large that it will be virtually impossible for the Senators and their staff to give it any meaningful review prior to the hearing. But then, that may be the very reason that Sen. Leahy has refused to reschedule Kagan's hearing.
But just today on CBS' Face the Nation, Sessions refuted the suggestion that there had not been sufficient time to review the Kagan documents that had been released. Asked by host Bob Schieffer whether Republicans would boycott the hearings because of concerns about the document productions, Sessions stated: “We've gotten quite a lot of documents. They came in a little sooner than I expected, frankly. We got them at least a week before the hearing instead of a day or hours.” Sessions also stated that he would not boycott the hearing.
Von Spakovsky also argues that there was something nefarious about the Clinton Library's decision to withhold some materials on privacy grounds.
No independent party has reviewed the withheld documents to examine the validity of the privileges being asserted by the Clinton Library. So we are just supposed to trust that they are being withheld based on a real privilege and not because they are embarrassing to Kagan or reveal something that could jeopardize her confirmation.
However, this is hardly nefarious. As Senate Judiciary Committee Chairman Patrick Leahy noted during Face the Nation, the Reagan Library did the same thing when reviewing and releasing documents from Chief Justice John Roberts' time as a Reagan administration aide. Indeed, Politico reported:
In a letter sent last week to Leahy and Sessions, Gary Stern, general counsel of the National Archives and Record Administration, said the decision to withhold documents was “consistent” with how the agency approached the Roberts nomination and were withheld because of “personal privacy” concerns.
“In this production, we have made every effort to withhold as little as possible and to provide portions of documents where possible, rather than withholding an entire document,” Stern said in the letter.
And then von Spakovsky serves up more misinformation. He compares conservative objections over the Clinton Library's decision to withhold on privacy grounds some of Kagan's documents to the objections by progressives over the refusal of the Bush administration to release any memoranda written by Roberts or lower court nominee Miguel Estrada during their time in the solicitor general's office. Von Spakovsky writes:
Of course, Democrats successfully filibustered Miguel Estrada over the Bush administration's refusal to release internal solicitor general memoranda that the administration claimed were privileged. Liberals made the same demands over Chief Justice Roberts' nomination, arguing that the refusal of theJustice Department to turn over some internal memoranda “creates the impression that there is something to hide,” at least according to Nan Aron of the Alliance for Justice. A lawyer for the Sierra Club speculated that the refusal raised the possibility that Roberts made statements in the documents that were “so outrageous that they'd persuade even a Republican-dominated Senate to reject him.”
A bit of background is necessary here. Roberts spent five years in the Reagan administration, and the Reagan Library released most of Roberts' documents from that period. However, Roberts returned to the government after the election of President George H.W. Bush and went to work as a deputy solicitor general. Unlike the documents from the Reagan administration, however, the George W. Bush White House refused to turn over any documents from Roberts' years in the Bush administration. The White House also refused to turn over any documents from Miguel Estrada's years in the solicitor general's office.
By contrast, the Clinton Library has turned over 160,000 pages of Kagan documents and only held back 1,600 pages from the Senate Judiciary Committee.
Furthermore, the Bush administration refused to turn over the solicitor general memoranda because it claimed the memos were privileged. However, with Kagan, the administration has allowed the Judiciary Committee to see documents even if they are privileged (although some of these documents are not being released to the public).