Democratic Senators Reveal Committee Confidential Documents From Supreme Court Nominee Brett Kavanaugh’s Past

September 6, 2018, 5:10 PM UTC

Senator Cory Booker (D-NJ) violated Senate rules in order to release committee classified documents pertaining to Supreme Court nominee Brett Kavanaugh’s work on racial profiling cases Thursday. The emails, Booker argued, “have nothing to do with national security” and therefore should be publicly available.

“I understand the penalty comes with potential ousting from the Senate,” said Booker Wednesday. “I openly invite and accept the consequences of my team releasing that email right now.”

Thursday morning, Booker followed through on his promise and released the four documents in question.

The emails within the documents show Kavanaugh identifying himself and a colleague as those who “generally favor effective security measures that are race-neutral.” He also criticizes Department of Transportation affirmative action regulations.

“The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what is a naked racial set-aside,” Kavanaugh wrote in 2001, adding that he expected the court’s conservative justices to “realize as much in short order and rule accordingly.”

Other communications show Kavanaugh questioning the “deliberate indifference standard” in racial profiling and the role of the president in Solicitor General performance.

“In my view, the White House should not be involved in the SG’s formulation of a position in the first instance, but rather only in approving or disapproving what the SG proposes,” Kavanaugh wrote in a 2001 email. “This is admittedly not my ideal of how a unitary executive should work, but it is the real world, and there is a very strong tradition in the Executive Branch—and in the Congress and media—that the SG is independent and should come to his or her own independent conclusions about the constitutionality of laws.”

Lack of Transparency

Democrats were infuriated in the weeks leading up to Kavanaugh’s hearings due to the lack of documentation the National Archives provided on the judge’s history. A lawyer for former president George W. Bush provided 415,000 pages of documents last week, but the Trump administration decided to withhold 100,000 pages from the Senate under executive privilege.

The night before Kavanaugh’s hearings, Bush’s lawyer released another 42,000 pages of documentation, but they were all labeled committee confidential, meaning they couldn’t be released to the public or discussed during hearings.

Senator Dick Durbin (D-IL), who voiced support for Booker’s actions, has asked why Kavanaugh is receiving special treatment in his hearing process.

A Slew of Leaked Documents

With Booker’s act of civil disobedience providing more transparency to Kavanaugh’s hearings, many Democrats have rallied behind their colleague, some joining him in breaking Senate rules. Senator Mazie Hirono (D-HI) also released committee confidential documents Thursday morning, writing on Twitter that “they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable.”

The New York Times also received committee confidential documents from an “unknown person” late Wednesday night, showing Kavanaugh discussing affirmative action and abortion. According to these documents, Kavanaugh said in 2003, “I am not sure that all legal scholars refer to [Roe v. Wade] as the settled law of the land,” but he did not give his personal stance on the matter.

Other communications obtained by the Times show Kavanaugh discussing topics related to the Bush administration’s warrantless surveillance program just after the 9/11 attacks. In 2006, Kavanaugh claimed not to have heard anything about this program prior to its existence being leaked to the public, but the 2001 emails may prove otherwise, a discrepancy Senator Patrick Leahy (D-VT) brought up in Wednesday’s hearing.

As more sealed documents come into the public eye, details about Kavanaugh’s work under the Bush administration are coming to the forefront.