It could be late October before senators can access all the requested records from Judge Brett Kavanaugh’s time in the White House, the U.S. National Archives said Thursday, potentially throwing a wrench into GOP plans to quickly hold a vote on President Trump’s Supreme Court nominee.
In a letter to Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Archives General Counsel Gary Stern wrote that many of the estimated 900,000 pages from Kavanaugh’s time in the White House counsel’s office have to be reviewed for instances where former President George W. Bush could assert executive privilege before they can be released.
Senate GOP leaders have said they want Kavanaugh to be approved in time to join the Supreme Court when its fall session begins in early October, and Grassley said Thursday he expects the committee to hold a hearing in September.
Committee spokesman Taylor Foy said the archive’s lengthy process won’t slow down the process. He said the committee is working with the George W. Bush Presidential Library to review and approve the documents quickly while the archive continues the more lengthy review required by the Presidential Review Act. Some of the records have already become available through this process.
Democrats have decried the review by President Bush’s attorney Bill Burck as partisan.
“Today the National Archives confirmed our worst fear -- that the vast majority of even the small portion of records the American public will see from Brett Kavanaugh’s time in the Bush White House will be pre-screened by a political operative and attorney for George W. Bush, Steve Bannon, Reince Priebus and Donald McGahn,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said in a statement.
Conservative legal analyst Ed Whelan called the letter a false alarm.
“I am reliably informed that, whether through [National Archives] or directly from the Bush library, the requested Kavanaugh records will be available in time for an early September hearing,” Whelan tweeted.
But University of Richmond law professor Carl Tobias said the National Archives isn’t known for overestimating how much time it needs to produce records, and he’s not sure how the committee can justify moving forward without reviewing the documents it has asked for.
“It kind of makes hash out of their schedule," Tobias said. "It would be unfortunate not to have as full of a record as possible.”
He pointed to the recent withdrawal of the nomination of Ryan Bounds for the U.S. 9th Circuit Court of Appeals over some statements he made in college writings.
Grassley’s document request covers only two of Kavanaugh’s five and a half years in the White House, but the National Archives said it will include more than 10 times as many records as were available for previous Supreme Court nominees. The last justice with White House experience, Justice Elena Kagan, has about 170,000 records in the National Archives.
Democrats have been pushing for weeks for a full review of Kavanaugh’s records, including his three years as staff secretary, and the National Archives says in total it holds several million records on Kavanaugh.
Republicans have accused Democrats of trying to stall the nomination, saying much of Kavanaugh’s records from that time won’t be relevant and that they would take many more months to review and bring before the committee.