FACT CHECK: Are There More Records On Kavanaugh Than The Last Five SCOTUS Justices Combined?

Emily Larsen | Fact Check Reporter

UPDATE (Sept. 4, 2018): At the confirmation hearing for Supreme Court nominee Brett Kavanaugh, Sen. Chuck Grassley made a claim similar to one we fact-checked in August – that Congress will receive more records on Kavanaugh than the last five Supreme Court nominees combined. The original fact check has been republished below.

Republicans on the Senate Judiciary Committee said that they expect to receive more pages of records on Supreme Court nominee Brett Kavanaugh than those produced for the last five Supreme Court justices combined.

Verdict: True

The National Archives and Records Administration (NARA) expects to review over 900,000 pages of records relating to Kavanaugh’s time in the White House and his nomination to the circuit court.

NARA produced 267,700 pages for the last five justices combined. The Senate Judiciary Committee estimated that it acquired 431,650 pages in total relating to the confirmations of those five justices.

It’s important to note that the claim deals with the last five confirmed judges. There were a couple recent nominees  Merrick Garland and Harriet Miers who never received a vote.

Fact Check:

Republicans on the committee highlighted the volume of the records that they expect to receive, while Democrats and their allies downplayed the extent of the records requested.

“We’re going to see a submission of documents over the next several weeks that will be the equivalent of the documentation that have been submitted in total for the last five Supreme Court nominees,” North Carolina Sen. Thom Tillis said at a press conference with other Judiciary Committee Republicans.

Sen. Chuck Grassley, the chairman of the committee, echoed the claim in an Instagram post the same day. “I requested abt 1 million pages from Judge Kavanaugh’s time as govt lawyer for fair+thorough SCOTUS vetting,” he wrote. “That’s more than the last 5 SCOTUS nominees COMBINED.”

In preparation for Supreme Court confirmation hearings, the Judiciary Committee requests records about the nominee from a variety of sources. Senators use those documents, along with the nominee’s legal writings and a questionnaire, to evaluate his or her fitness for the bench.

Grassley asked the George W. Bush Presidential Library and Museum, part of NARA, on July 27 for Kavanaugh’s emails and office files from when he served as a White House lawyer, as well as documents relating to his nomination to the U.S. Court of Appeals for the District of Columbia Circuit.

The volume of the request could total more than 900,000 pages, NARA said in an Aug. 2 letter to Grassley. It expects to review about 300,000 of those pages by Aug. 20 and the rest by the end of October.

That is far more pages than the agency processed for the last five confirmed Supreme Court Justices – Neil Gorsuch, Elena Kagan, Sonia Sotomayor, Samuel Alito Jr. and John Roberts Jr. – combined. (RELATED: Has It Historically Taken More Than 67 Days To Vote On A Supreme Court Nominee?)

“By way of contrast, the total volume of records that NARA reviewed for the nomination of Justice Roberts was approximately 70,000 pages, and the volume for Justice Kagan’s nomination was 170,000 pages,” NARA General Counsel Gary Stern said in the letter to Grassley.

NARA told The Daily Caller News Foundation in an email that it processed about 1,500 pages for Alito’s confirmation, 6,200 pages relating to Sotomayor and 20,000 pages for Gorsuch.

Altogether, that is 267,700 pages – less than a third of the volume that NARA expects to process for Kavanaugh.

Grassley’s press secretary for the Judiciary Committee provided a different estimate on the number of pages that it obtained: 180,000 for Gorsuch, 173,000 for Kagan, 350 for Sotomayor, 2,300 for Alito and 76,000 for Roberts. In total, that is about 431,650 pages.

The committee no longer houses these records, so rather than an actual page count, these estimates were derived by analyzing old committee files.

The two estimates give the best picture of the volume of records for each of the last five justices. The committee estimate is more comprehensive because it includes not only records from NARA, but also the Department of Justice, the White House and elsewhere.

But there is at least one gap in the committee data. NARA submitted 6,200 pages for Sotomayor that are missing from the committee estimates. It lists only 350 pages of records for Sotomayor from her time on the board of the Puerto Rican Legal Defense and Education Fund.

And we found slightly higher estimates for two justices. Before Gorsuch’s confirmation, the White House said that there had been over 220,000 pages of documents about him sent to the Judiciary Committee – more than the committee estimate of 180,000 pages. During Alito’s hearing, Sen. Orrin Hatch said that 36,000 pages of records were sent. The committee estimate is only 2,300 pages.

Grassley’s office believes that the difference on the last two counts may come down to a matter of methodology. Its figures do not include documents provided by the nominees or records like court opinions that were already public.

The discrepancies are not drastic, though, especially considering the sheer number of records NARA plans to produce for Kavanaugh. Even if the committee’s estimate were doubled, the number of pages would not reach 900,000.

There are far more records for Kavanaugh due in part to the increased use of email in the public sector, meaning written communications are more easily available. Kagan also served in the White House Counsel’s office, but there were far fewer pages of emails produced from her time there.

NARA estimates that Kavanaugh sent, received or was copied on 170,000 emails while he served as a White House lawyer. Each email equals approximately five pages including attachments, so about 850,000 of the pages that NARA expects to review in response to Grassley’s request are emails.

Democrats and their allies have suggested that Grassley’s request is not as extensive as Republicans claim, in part because he did not ask for records from the time Kavanaugh was a staff secretary under President George W. Bush from 2003 to 2006. Those records, they argue, contain information about Kavanaugh’s views on key issues.

“I’d rather review the 1+ million pages of Kavanaugh’s ACTUAL RECORDS during his 3 controversial years as WH Staff Secretary,” Sen. Patrick Leahy of Vermont said in a tweet.

NARA did say that it has about 560,000 pages of paper files and 475,000 email files from Kavanaugh’s time as staff secretary.

“Some are saying this request for Kavanaugh’s records is the most extensive ever. Don’t believe it,” Daniel Goldberg, legal director at the Alliance for Justice, said at a press conference with Senate Democrats. “In the bipartisan request to Kagan, all documents Kagan wrote, edited or prepared, or documents prepared under her supervision were asked for. Not this time.”

Ranking Member Dianne Feinstein and other Judiciary Committee Democrats submitted a more extensive request for Kavanagh’s records on July 31, including his time as staff secretary. But NARA said in a letter to Senate Minority Leader Chuck Schumer that longstanding precedent dictates that it only respond to requests from Grassley, the committee chair,

Republicans say that their request did not neglect to request important documents that could give more information about Kavanaugh’s legal thinking.

“Unlike Judge Kavanaugh, Justice Kagan didn’t have a judicial record prior to her nomination,” Taylor Foy, communications director for Grassley, told TheDCNF in an email. “Accordingly, the committee had a more compelling need for documents from her time in the Executive Branch that might have shed light on her legal thinking.”

Foy also noted that both Republicans and Democrats on the committee at the time of Kagan’s nomination agreed not to request documents from her time as Solicitor General because of their sensitive nature, even though they would have been useful for evaluating her views about the law.

In an Aug. 3 letter, Grassley and Feinstein also requested documents on Kavanaugh’s time in the Office of Independent Counsel Kenneth Starr in the 1990s. NARA estimated that there are about 20,000 paper files in that category.

The Alliance for Justice did not respond to a request for comment.

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Published: Thursday, Aug. 9, 2018

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Emily Larsen

Fact Check Reporter