Senate lawmakers are barreling into the Supreme Court confirmation process for Judge Brett Kavanaugh with a glaring blind spot.
Judiciary Committee Chairman Chuck Grassley is shooting down pleas for access to the D.C. Circuit Court of Appeals jurist’s paper trail as staff secretary for former President George W. Bush—and Democrats say that refusal could leave the upper chamber woefully unprepared to analyze his record on a contentious policy area in the Trump administration: the environment.
Some of his most spirited opinions as a member of the D.C. Circuit, the second-most influential court nationally, hit on environmental policy. Supporters champion Kavanaugh as a bulwark against federal overreach, while critics accuse him of kowtowing to corporate interests over public health and conservation.
There’s a laundry list of opinions to look to. In late 2012, Kavanaugh dissented against a D.C. Circuit denial of a challenge to the Environmental Protection Agency’s Endangerment Finding, a landmark decision that said greenhouse-gas emissions, such as carbon dioxide and methane, threaten global welfare.
“EPA chose an admittedly absurd reading over a perfectly natural reading of the relevant statutory text. An agency cannot do that,” he argued in Coalition for Responsible Regulation v. Environmental Protection Agency. “It is emphatically our job to carefully but firmly enforce the statutory boundaries. That bedrock separation of powers principle accounts for my concern about this case. Here, as I see it, EPA went well beyond what Congress authorized.”
Democrats and environmental advocates, however, say access to that public stockpile of opinions falls short. And they’re continuing to hammer Grassley for, in their view, shielding Kavanaugh’s 2003-2006 stint as staff secretary, a period where the Bush administration mobilized against regulation of greenhouse-gas emissions, far from Senate and public eyes. Kavanaugh also served two years as counsel prior to staff secretary.
His involvement, if any, in environmental matters while at the White House is unclear, but a number of high-profile decisions took place on that front during his tenure. The Bush administration, in April 2001, abandoned the Kyoto Protocol, essentially the predecessor to the Paris Climate Accord, after President Clinton signed it several years earlier. Environmental groups have also accused the Bush White House of muzzling climate scientists.
Kavanaugh’s critics and skeptics are now mustering their limited power to flesh out that involvement—and much more. Democrats say Kavanaugh’s track record shows he’ll try to insulate the president from criminal investigation and potentially dismantle abortion rights.
“The period of his professional career that he regards as most instructive is his service in the White House as staff secretary. None of those documents, I repeat none, have been made available,” Senate Judiciary Committee member Richard Blumenthal said on a conference call Friday, arguing that Republicans are concealing 94 percent of Kavanaugh’s White House record. “Clearly, the vote on his confirmation should be postponed.”
Kavanaugh has suggested that his tenure as staff secretary trumps all his other vast legal experience.
“My five-and-a-half years at the White House, and especially my three years as staff secretary for President Bush, were among the most interesting and most formative for me,” he said in a 2015 speech.
But Grassley, along with some other observers, argues that the staff secretary position is a largely traffic-cop role, describing it as a near-menial position designed to convey the perspectives of top advisers.
“I did not request these documents because they are the least revelatory of his views on the law and most sensitive to the executive branch,” Grassley said in late August in a letter obtained by National Journal to all 10 Democrats on the Environment and Public Works Committee who, led by ranking member Tom Carper, sought access to Kavanaugh’s environmental records at the White House. “The primary responsibility of the staff secretary is to serve as the president’s inbox and outbox by coordinating the flow of papers to and from the Oval Office. He is responsible for making sure that policy advice from other advisers is presented to the president.”
Lisa Brown, President Obama’s first staff secretary who is now general counsel at Georgetown University, hit back against Grassley’s position.
“The staff secretary is a senior adviser to the president,” Brown told National Journal. “It’s laughable to me that they’re describing this as a paper pusher job because you don’t hire senior, experienced lawyers to be paper pushers. You don’t hire a Brett Kavanaugh to be a paper pusher.”
“You may very well get called on for that experience and expertise regardless of your role as staff secretary,” she added. “I imagine this would have happened particularly with Brett because he’d been in counsel’s office, and it feels a little artificial to say if he’d been in the middle of some issue in counsel’s office and he moves to the staff secretary position, then all of a sudden nobody’s going to consult him on that issue.”
Brown said any documents that Kavanaugh “wrote, edited, or commented on would certainly be relevant” to the Senate confirmation process.
Grassley, meanwhile, says he’s going to unprecedented lengths to expose Kavanaugh’s record. The Judiciary Committee, aided by the White House and former Bush counsel William Burck who is acting as an intermediary, has publicly released more than 200,000 documents, as well as more documents that senators can view.
Jeffrey Holmstead, a top-ranking climate-and-air-pollution official at the EPA during Kavanaugh’s tenure with the Bush administration, said the White House paper trail needs to be guarded carefully.
“People around the president especially should be able to speak candidly and be able to give him their unvarnished thoughts on things,” said Holmstead, who also counseled George H. W. Bush. “And, you know, if people believe that their advice and consult and whatever their thoughts may be are ultimately going to be used in a confirmation hearing, should they be nominated for something, I think the president might not get the benefit of true, unvarnished thoughts.”
The Presidential Records Act paves the way for the release of presidential documents, but allows the president to delay access for up to 17 years, according to the National Archives.
The vast majority of Republicans are sure to support the nominee, particularly after Sen. Susan Collins recently expressed optimism that Kavanaugh believes Roe v. Wade is settled law. And while most Democrats will oppose the nomination, support from energy-friendly moderates—such as Sens. Joe Manchin and Heidi Heitkamp, both of whom face tough reelection fights—is far from far-fetched.
That makes Democratic obstruction a likely heavy lift.
“Given the politics of the moment that are so partisan, I don’t know what leverage the Democrats have here,” Holmstead said. “It’s one thing if they say, ‘we’re going to hold up this nomination until you give us some kind of access,’ but I don’t think they have that leverage here.”