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Rozell & Sollenberger: Senate Needs Full Access to Kagan Files

The confirmation hearings of Elena Kagan to be the next Supreme Court justice are soon upon the Senate, but her full record is not. If Judiciary Chairman Patrick Leahy (D-Vt.) and his colleagues continue on their present course, the hearings will commence next week before the issue of releasing the records of her past service in the Clinton White House is settled.

Indeed, even if the Obama administration does not claim executive privilege, and if the presidential library of former President Bill Clinton agrees to relax its hold on some of Kagan’s past memos, then a massive document dump on the committee on the eve of the hearings will not give adequate time to review the nominee’s record. Regrettably, Chairman Leahy does not appear committed to pushing for the timely release of all of Kagan’s records before the confirmation hearings begin. That is just wrong.

The failure to press for the full record of any such high-level nominee, especially one who will likely serve for decades to come, undermines important constitutional principles of checks and balances and democratic accountability. It is the duty of the Senate committee, regardless of partisan affiliation, to protect its prerogative to have access to all information that is germane to the past record and qualifications of such a nominee.

A good example to remind the Senate committee members of is what happened in 1986 when President Ronald Reagan nominated Associate Justice William Rehnquist to become the next chief justice of the Supreme Court. The Republicans controlled the Senate at the time, and the party members on the committee easily could have pushed through the nomination without demanding documents. But when the president claimed executive privilege to withhold documents pertaining to the nominee’s past service in the Nixon administration, members of the Judiciary Committee of both parties took the stand that they would delay the hearings until the documents were made available. The president withdrew his executive privilege claim, the documents were released and the nominee was confirmed.

That is how the system is supposed to work, and it is an important lesson for the current controversy over a possible executive privilege claim to withhold documents from Kagan’s service during the Clinton administration. In the ideal case, committee members of both parties should stand together to protect the institutional prerogative and duty of the Senate to have a fair hearing based on the full record of the nominee. If that means delaying the hearings for perhaps a few weeks, then that is a very small price to pay for conducting this process properly.

If Chairman Leahy and the Democratic majority choose instead to assert the will of the majority to move the nominee quickly through this process without a full airing of the record, then Republican Senators have a duty to use whatever means they can to stop that from happening. Most likely, that means a filibuster.

There is another telling example for the Senators to consider. Back in 2001 and 2002, Chairman Leahy and his Democratic colleagues blocked a committee vote on D.C. Circuit Court nominee Miguel Estrada because of the Bush administration’s refusal to allow the release of documents from his past service in the solicitor general’s office. In September 2002, Judiciary Committee Democrats held a confirmation hearing for Estrada where they blasted the Bush administration for its lack of cooperation. Sen. Charles Schumer (D-N.Y.), who chaired the hearing, said he didn’t dispute Estrada’s legal qualifications but said that’s “not enough.” He wanted the release of documents and explained: “I don’t know what is in those solicitor general records. They may vindicate you, they may not. They may be somewhere in between, but we really need much more a record” especially when confirmation means an appointment onto “the second-highest court in the land.”

When the Republicans took over the Senate in 2003, they erred by quickly reporting Estrada out of the committee despite the fact that the DOJ documents still had not been released. The Democrats correctly stood their ground and decided to filibuster. The nominee thus never was confirmed. Again, the system worked.

Lifetime positions to the nation’s highest court should receive an especially thorough and considered review. Once confirmed, excepting rare impeachment proceedings, the justices are no longer answerable to the Senate and the public. For that reason, the president must authorize the release of Kagan’s records as soon as possible. Chairman Leahy and the committee members must insist on having the full record or delay the process until the Obama administration cooperates. And if that does not happen, the Republicans absolutely should not hesitate to filibuster this nomination. They must know that under different partisan configurations in Washington, Leahy and his Democratic colleagues would do exactly that.

Mark J. Rozell is professor of public policy at George Mason University and the author of the book “Executive Privilege.” Mitchel A. Sollenberger is assistant professor of political science at University of Michigan-Dearborn and the author of the book “The President Shall Nominate.”

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