Kavanaugh’s paper trail was vastly larger than any previous nominee’s, and paperwork had been a point of contention in previous confirmation fights. In fact, William Rehnquist’s nomination as chief justice hit a major speed bump when President Reagan refused to release to the Senate just a few sensitive documents Rehnquist had written fifteen years earlier. There were about 70,000 pages relating to John Roberts’s time in the Justice Department and the Reagan White House and about 182,000 pages for Gorsuch. Elena Kagan was trailed by 173,000 pages from the Clinton White House. At the time of her hearings in 2010, many observers weren’t sure that her documents could be handled in such a short period. In fact, the Obama White House had the same concern and had begun requesting her documents from archivists before she had been officially nominated.
Kagan had no experience as a judge, and her published writings were not extensive. In fact, she had barely any litigation experience before becoming the U.S. solicitor general, so documents from that phase of her career were considered particularly revealing of her thinking. At the same time, since the papers reflected the deliberative discussions between the government and its attorney, they could not be handed over indiscriminately. So while the bipartisan agreement about which documents to request included records from her time at the Clinton White House, the Senate did not even request documents from her time as solicitor general.
White House documents requested by the Judiciary Committee for Kagan’s confirmation had to go through two presidential reviews. After they were located and pulled, they were analyzed to determine whether there might be legal restrictions on their publication. They were then subject to claims of executive privilege by former President Clinton as well as by President Obama, since some of the documents might involve ongoing national security or other concerns. The paperwork battle heated up, with some Republicans threatening to boycott the hearings if they didn’t get Kagan’s papers before they started. In the end, most of the documents were released by the deadline, a few thousand of them marked “committee confidential,” which meant only the committee could review them.
This was the same process followed for Kavanaugh. By 2018 the Senate was moving toward greater transparency in its document releases. Chairman Grassley in particular was known as the Senate’s “chief transparency officer.” While he and his staff had worried about the number of documents Kavanaugh’s nomination would produce, once he was chosen, they set about getting the work done.
The documents from Kavanaugh’s time on the independent counsel investigation of President Clinton were the first to be produced. Scholars and journalists had already scrutinized them, and they showed Kavanaugh to have been by and large a voice of restraint in the investigation. According to Stephen Bates, the associate independent counsel who helped draft the Starr Report, Kavanaugh had urged the independent counsel “to excise the factual summary from the report, on the ground that it was excessively explicit.” Bates also reveals that Kavanaugh drafted a letter for Kenneth Starr’s signature urging the House not to release the report to the public, although “after hearing the arguments on both sides, Ken decided against sending the letter.”12
Grassley’s staff sought Senator Feinstein’s help in narrowing the scope of the request for documents, especially those from his time as staff secretary. “A review of all the paperwork that circulated through Kavanaugh’s office when he was staff secretary would pretty much amount to a review of all the paperwork that circulated through the White House in those years, and yet would also reveal essentially nothing about Kavanaugh. It would mostly amount to a monumental waste of the Senate’s time,” wrote Yuval Levin, a domestic policy adviser in the Bush White House.13
Staff secretary is not a legal position. A law degree is not a requirement, though it is commonly held by lawyers. The documents from that office would involve trivial matters such as whether flags should be flying at half-staff, menus, and Arbor Day speeches, as well as sensitive national security matters.
One reason Kavanaugh had so many more documents to review than everybody else was that his tenure as staff secretary corresponded with the advent of email and the convenience of Blackberry phones. Water-cooler conversations about where to grab lunch were now handled in texts and emails that became historical records. Documents from the White House counsel’s office had to be turned over even though they often included legal advice, since such documents had been submitted for Kagan’s confirmation.
In any case, chasing down millions of White House documents was an almost pointless exercise considering that the senators—indeed, anyone with an internet connection—had ready access to the most important evidence of Kavanaugh’s thinking: his judicial record. In twelve years on the D.C. Circuit, Kavanaugh had authored 307 opinions and joined hundreds more. And the judicial questionnaire he answered for the Senate Judiciary Committee was the most extensive in history, stretching to 6,168 pages.14 By contrast, Kagan had no judicial opinions to her name, and John Roberts had fifty-two.15 Gorsuch, whose tenure on the bench was of a length comparable to Kavanaugh’s, had 240.16
Grassley spent weeks trying to work with Democrats on the process for handling Kavanaugh’s unwieldy paperwork, even though many of them had announced their opposition to the nominee from the beginning. He proposed making use of the electronic nature of the documents to allow keyword searches, but after Democrats refused to discuss reasonable ways to pare down the universe of documents, Republicans abandoned the keyword negotiations, convinced that Democrats were simply on a “government-funded fishing expedition.”17
Democratic recalcitrance ended up saving the nomination. Had they requested a large but defensible set of documents, the hearings could have been delayed for months. In fact, Feinstein had brokered such an agreement with Grassley, only to have her staff, with whom she was frequently at odds, back away from it. She was both more moderate politically than her staff and less inclined to blow up bridges with senators with whom she had long-standing relationships. Receiving no reasonable proposal from the Democrats, Grassley ended up requesting a manageable set of documents on his own. His obvious efforts to work with Feinstein had impressed Collins and Murkowski, who found Democratic obstruction outrageous.
The Senate Judiciary Committee decided to hire an “e-discovery firm,” marking the first time such techniques would be used in a Supreme Court confirmation process. The contractor they had in mind was already handling e-discovery for the Bush Presidential Library as it vetted Kavanaugh-related papers for release, so it could seamlessly share those documents with the Judiciary Committee. After committee Republicans got Senate approval for the contract, they notified the Democrats, and the company suddenly pulled out of the deal. The committee contracted with the e-discovery firm Relativity instead, this time opting not to let Democrats know beforehand.
Bill Burck, a former special counsel and deputy counsel to President George W. Bush, was Bush’s designated representative to review his records under the Presidential Records Act. Grassley’s team was on the phone with him several times a day. As soon as Burck and his team cleared each tranche of documents, they would be released. Documents were released on a rolling basis, whether they arrived at two a.m. on a Saturday or in the middle of the week.