The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In today's Supreme Court confirmation hearing, Senator Pat Leahy (D-VT) asked Judge Brett Kavanaugh about whether he had been aware that a Republican Senate Judiciary Committee, with whom he had worked on judicial nominations during the Bush Administration, had surreptitiously obtained confidential documents from Committee's Democratic staff. Senator Leahy is apparently concerned that Judge Kavanaugh was not fully forthcoming on this matter during his testiony at the confirmation hearing on his nomination to the U.S. Court of Appeals for the D.C. Circuit.
The documents allegedly helped the Bush White House and Senate Republicans counter Senate Democrats' efforts to block President Bush's judicial nominees. Further, the eventual disclosure of these documents proved quite embarrassing to some Senate Democrats and resulted in a referral to the Department of Justice. Among other things, the documents revealed that Senate Democrats were particularly intent on blocking the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit because he is hispanic and would be an attractive Supreme Court nominee. Others revealed that outside activist groups sought to delay the confirmation of judges with an eye toward affecting the outcome of at least one pending case.
This 2004 Christian Science Monitor article provides a good overview of the events in question. Here's an excerpt:
In all, some 4,670 Democratic staff documents were lifted from fall 2001 to spring 2003, according to a report released last week by the Senate Sergeant at Arms. They were subsequently passed on to Manuel Miranda, the former counsel for the Senate Judiciary Committee. Nineteen of the Democratic staff memos later appeared on the website of the Coalition for a Fair Judiciary, a conservative group committed to confirming "constitutionalist" nominees. . . .
One of the memos, later published on the Internet, urges Senate Democrats, who then controlled the committee, to hold an unusual second hearing on Pickering, to give opposition groups "adequate time to research him fully." They did.
Another identified Miguel Estrada as an "especially dangerous" nominee for the US Court of Appeals for the D.C. Circuit, because "he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment." After an unprecedented two-year Democratic filibuster, Estrada withdrew from consideration last fall.
The most striking of the published memos includes a request by the general counsel of the NAACP to not move nominees for the Sixth Circuit until after University of Michigan affirmative action cases had been decided. Nominees were delayed, but Democrats on the Judiciary Committee say it was not because of the memo.
This 2004 Boston Globe story provides additional context, and this Jack Shafer column suggests the Globe coverage was overheated. In this article, Dahlia Lithwick calls the controversy a "gnarly sausage"
For those interested in seeing some of the purloined memos, a sampling should be accessible here.