NGOs Ask Senate to Review Record before Confirmation Hearing

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Dear Chairman Grassley and Ranking Member Feinstein,

As organizations committed to open government and accountability, we are increasingly concerned over the lack of transparency and restricted access to records relating to Supreme Court nominee Judge Brett Kavanaugh.¹ Secrecy and selective availability of information continue to plague public confidence in the Senate’s ability to conduct a fair and impartial review of Judge Kavanaugh’s background and qualifications.² We urge you work across party lines to ensure maximum transparency, protect the public’s right to know, and allow the National Archives and Records Administration (NARA) to complete its review of nomination records before proceeding with the confirmation hearings.³

While NARA is working to review and disclose records in accordance with Presidential Records Act (PRA), members of the Senate Judiciary Committee are accessing a narrow set of records directly from President George W. Bush’s PRA representative.⁴ Within this limited document collection, information is being marked confidential and disclosed only in a restricted way to members of the Judiciary Committee and to the public.⁵ Of great concern, in an unprecedented circumvention of records access laws, President George W. Bush’s PRA representative is providing copies of the White House Counsel’s nomination records directly to the Senate Judiciary Committee,⁶ and Republican senators are choosing which records to make available to the public.⁷

By relying on this parallel track outside of the PRA, the Senate Judiciary Committee is creating a problematic assumption of privilege, eliminating the requirement that a president must give notice of the documents over which he asserts the claim.⁸ If this process continues, there will be no legal remedy to challenge the withholding of all privileged records, and the Senate and the public will never know what information is missing from the review.⁹

You both have indicated that unequal access to records relating to Supreme Court nominees is a problem that spans administrations.¹⁰ Democratic senators denounce the fact that requests for records have omitted important information on Judge Kavanaugh’s role in controversial policies,¹¹ and that the majority of the documents made available are being treated as “Committee Confidential.”¹² Republican leaders argue that the records made available are sufficient to assess Judge Kavanaugh’s career, and assert they are following precedent set by the Democrats during prior nominations.¹³

We ask that all Senators rise above partisan politics and ensure maximum transparency for all reviews of Supreme Court nominees. Senator Grassley, we ask that you work to fulfill the July 31^st request from Democratic senators for access to records on Judge Kavanaugh’s career, and allow NARA to complete its full review of remaining nomination records.¹⁴ Senator Feinstein, we ask that you work to negotiate the feasibility of this request and commit to honoring all future requests from Republicans for documents should the party in the majority change in the future.

In order for the Senate to carry out its constitutional duty to provide advice and consent on Supreme Court nominee Judge Kavanaugh, it is critical to have a full understanding of his White House record, his positions, and policy choices. We call on you to guarantee that all senators are adequately informed prior to making a decision that has vast and long-lasting ramifications for the nation.

Thank you for your attention to these requests. For more information, please contact Lisa Rosenberg at Open the Government, [email protected] or 202-332-6736.