Dems Used To Say A Judge’s Record Was ‘The Best Way To Evaluate A Nominee’

SEN. LEAHY (D-VT) On Then-Judge Sonia Sotomayor: ‘We Do Not Have To Imagine What Kind Of A Judge She Will Be Because We See What Kind Of A Judge She Has Been’


SENATE MAJORITY LEADER MITCH McCONNELL (R-KY): “Already, the [Judiciary C]ommittee has received nearly 200,000 pages of material that relate to this nomination. By all accounts, this is already the most material ever submitted for any Supreme Court nomination…. But of course, the best indicator of how Brett Kavanaugh will approach the role of a federal judge is the way he’s discharged his duties as a federal judge in the twelve-plus years he’s served on the D.C. Circuit Court of Appeals.” (Sen. McConnell, Floor Remarks, 8/15/2018)

SEN. CHUCK GRASSLEY (R-IA), Judiciary Committee Chairman: “The best way to determine how a nominee would serve as a justice is to examine how he has served as a judge. Kavanaugh has spent the past 12 years on the powerful U.S. Court of Appeals for the District of Columbia Circuit. During that time, he has written more than 300 opinions and joined hundreds more. These opinions offer ample insight into his legal acumen, temperament and judicial approach…. [W]e have a nominee with an extensive judicial record and legal writings that provide far more insight into his judicial philosophy than any executive-branch record would. On top of that, the Judiciary Committee has requested up to 1 million pages of documents from his time as a government lawyer…. This is in addition to the more than 17,000 pages of materials that Kavanaugh submitted in response to the most thorough and robust committee questionnaire ever required of a Supreme Court nominee.” (Sen. Grassley, Op-Ed, “I’m Ready To Work To Confirm Kavanaugh. I Invite Democrats To Join Me.,” The Washington Post, 8/03/2018)


Democrats Used To Agree That ‘Everybody Knows’ A Supreme Court Nominee’s Record On The Bench Is ‘The Best Indicator Of The Kind Of Justice She Would Be’

“Democrats … have mounted an aggressive defense of [then-Judge Sonia] Sotomayor, arguing that her extensive record in the courtroom makes speculation on how her public statements or other activities will affect her tenure on the Supreme Court meaningless. ‘There's no reason to speculate about her record. She's participated in over 3,000 panel decisions. There's a long paper trail and record’ from which to judge her qualifications, a White House official said.” (“GOP Escalates Attacks on Sotomayor,” Roll Call, 6/24/2009)

SEN. CHUCK SCHUMER (D-NY): “We have heard you asked about snippets of statements … but we have heard precious little about the body and totality of your 17-year record on the bench, which everybody knows is the best way to evaluate a nominee.” (U.S. Senate Judiciary Committee Hearing, 7/14/2009)

  • “[Judge Sotomayor’s] ‘critics must be getting desperate if they're grasping at straws like this,’ said Sen. Chuck Schumer, D-N.Y., adding that senators should focus on Sotomayor's 17-year record as a judge rather than ‘fishing expeditions.’” (“Legal Group's Records Tell Little About Sotomayor,” The Associated Press, 7/01/2009)

SEN. PAT LEAHY (D-VT): “We have Judge Sotomayor’s record from the Federal bench. That is a public record that we had even before she was designated by the President. Judge Sotomayor's mainstream record of judicial restraint and modesty is the best indication of her judicial philosophy. We do not have to imagine what kind of a judge she will be because we see what kind of a judge she has been.” (Sen. Leahy, Congressional Record, S. 6920, 6/23/2009)

THEN-WHITE HOUSE COUNSEL GREG CRAIG: “Judge Sotomayor has already fully and in good faith answered her Committee questionnaire, providing detailed answers and thousands of pages of documents for review. This includes the full record of her 17 years of federal judicial experience, which is undoubtedly the best indicator of the kind of Justice she would be.” (Gregory B. Craig, White House Counsel, Letter to Sen. Sessions, 7/02/2009)

“The best evidence ‘of how she’d be as a judge are the 17 years of legal opinions that she has written and that she herself has worked on not a box or boxes of documents that she didn't write, review or approve,’ said Robert Gibbs, the White House spokesman. ‘I think there has been plenty of time to review the record.’” (“Republican: Sotomayor Had Ties To Extreme Group,” The Associated Press, 7/03/2009)


Yet Democrats Are Now Insisting On Combing Through ‘Any Documents In Which Kavanaugh Was Mentioned’ At All

“According to rough estimates from the National Archives, [Brett] Kavanaugh amassed a whopping 3.8 million-plus pages of records during his time at the White House…. The Archives have another 20,000 pages of records from Kavanaugh’s work on the Starr investigation.” (The Washington Post, 8/15/2018)

“[Judiciary Committee Ranking Democrat Sen. Dianne] Feinstein assumed that there were 7 million pages of Kavanaugh records from his White House days, much more than 3.8 million. A spokeswoman for Feinstein, Ashley Schapitl, said that’s because Democrats also requested any documents in which Kavanaugh was mentioned, not just those that landed on his desk or email inbox or outbox.” (The Washington Post, 8/15/2018)

YUVAL LEVIN, Ethics and Public Policy Center Fellow: “[T]he nature of the job of the White House staff secretary means that most documents that ‘circulated through Kavanaugh’s office’ while he had that job wouldn’t really tell senators anything about him, and shouldn’t be considered on par with documents he himself produced—in the counsel’s office and in other jobs…. 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.” (Yuval Levin, “The Kavanaugh Paper Flow,” Ethics & Public Policy Center, 7/11/2018)


But Dems Also Once Said That ‘Documents Not Written, Edited, Or Approved By Past Nominees Have Not Been Viewed As Relevant’

“White House Counsel Greg Craig told Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, that board meeting minutes and other papers detailing the Puerto Rican Legal Defense and Education Fund's activities while Sotomayor was an outside adviser aren’t relevant to her nomination.” (“White House Slams GOP Document Search On Sotomayor,” The Associated Press, 7/02/2009)

  • CRAIG: “You have now individually sought … documents that were not written, edited, reviewed, or approved by Judge Sotomayor. The [Judiciary] Committee questionnaire already asked and Judge Sotomayor already provided all documents that she had prepared or contributed to the preparation of on behalf of the Board of PRLDEF. The documents you are now seeking are not relevant to her nomination, just as similar documents not written, edited, or approved by past nominees have not been viewed as relevant to the Committee’s consideration of those nominees.” (Gregory B. Craig, White House Counsel, Letter to Sen. Sessions, 7/02/2009)
  • “‘She was on the board of directors, she was not a member of the legal staff, so she was not directly involved in the legal arguments that we presented,’ [head of PRLDEF Cesar] Perales told The Associated Press in an interview. ‘Her role was to help us raise funds, set policy, hire the person who would run the organization. ... We don't expect to uncover anything particularly interesting.’” (“Legal Group Sending Sotomayor Documents To Senate,” The Associated Press, 6/30/2009)

“Democrats … argue that most of the material has nothing to do with Sotomayor. ‘Before this request, we already had a more public and complete picture of Judge Sotomayor than for previous nominees,’ Sen. Patrick Leahy, D-Vt., the Judiciary chairman, said in a statement.” (“Group Sotomayor Belonged To Sued Over Job Tests,” The Associated Press, 7/04/2009)



Related Issues: Senate Democrats, Supreme Court, Judicial Nominations