A Judge Who Can’t Be Vetted Shouldn’t Be Confirmed

If Brett Kavanaugh’s extensive paper trail can’t be fully and publicly disclosed, the simplest solution is to nominate someone else.

Chip Somodevilla / Reuters

The Brett Kavanaugh hearings—such as they are—began on Wednesday to take on a shape that ordinary citizens can understand. When discussing the law, Judge Kavanaugh has been an impressive witness. But anyone watching the hearings Wednesday morning could see the discomfort on Kavanaugh’s face when Senator Patrick Leahy asked him about his potential knowledge of the theft of Democratic-committee emails a decade and a half ago.

From 2002 to 2003, the Republican aide Manuel Miranda, first working on the Senate Judiciary Committee and later in the majority leaders’ office, exploited a computer glitch to access confidential memos written by Senate Democrats on judicial nominees, leaking their contents to friendly media outlets. Senator Orrin Hatch, at the time, called it “improper, unethical, and simply unacceptable.” Kavanaugh was asked at his 2006 confirmation hearing whether, as a White House aide working on judicial nominations at the time, he’d been aware of the breach, and insisted he “did not know about it, did not suspect it.” On Wednesday, though, Leahy suggested that emails available to the committee, but not the public, contradict that—indicating that Miranda had sent Kavanaugh a draft letter written by Leahy but not yet released, among other documents.

Kavanaugh’s discomfort may have been born of the confusion of simple ignorance (What is he talking about?); it may also be that he fears revelation of previous false testimony (What do I do now?). In any genuine confirmation process, that exchange would prompt full exploration of the question—even if hearings had to be delayed so the facts could be dug out.

There is simply no legitimate reason why hearings for a nominee must be expedited to such a pace that the members of the committee are denied access to the nominee’s record—and have no time to examine even the fraction of papers they are given. There is also no legitimate reason why executive and private officials should be allowed to withhold relevant documents from a Senate committee exercising its constitutional responsibility, or that documents like those Leahy cited should be made available to the committee but withheld from the public.

It is easy to accept the framing of the hearings offered by the White House and the Republican leadership: that these hearings are about Kavanaugh. Is he a fine lawyer? Is he a good husband? Is he honest and intelligent and accomplished? If the answer to these questions is “yes”—and it is—the implication is that the seat in essence is Kavanaugh’s property, and the role of both the Senate and the public is to usher him to his new home.

But the proper questions are actually different. Kavanaugh may be a fine guy, but why is he the nominee and not one of the dozens of equally qualified young lawyers (some of whom, old-fashioned as it may seem to point this out, might be women or people of color)?

That question is important because one of the reasons offered for the stonewalling on the document issue is that Kavanaugh, having served as in the White House counsel’s office and then as a White House staff secretary, handled so many sensitive and secret proceedings that allowing the committee to inspect his work would compromise executive autonomy and perhaps national security.

Let’s assume for the moment that this explanation is true, or at least offered ingenuously. It simply does not follow that the committee should proceed without full information on this nominee. Instead, it implies that the executive branch should produce a different nominee.

If an applicant for a powerful lifetime position cannot provide the needed documents to vet him, the answer is not to drop the vetting; it is to nominate another person, who can provide what reasonable process demands. Vetting is a constitutional requirement, not an obstacle to be dodged. If the people’s representatives can’t vet Kavanaugh, then the president should bring them a nominee they can vet.

The reasons stem primarily from the president and Congress’s responsibility to the nation. An incompletely vetted nominee may pose a security threat to the nation. (Remember Sally Yates notifying the White House that then–National-Security Adviser Michael Flynn was at risk for blackmail?) An incompletely vetted nominee may in fact have disqualifying facts in the concealed record. (Remember Senator Hugo Black, who was confirmed in haste and then found to have been a member of the Ku Klux Klan as a young man?) But even if the nominee has no concealed blot on his or her record, a rushed vetting process will forever leave suspicions in the minds of the public, especially those who lack confidence in the president who has made the appointment.