Kavanaugh v Yates - Documents & the Administrative State

And the race is on! Labor Day cookouts are barely over and we’re already racing towards midterms, desperately trying to defend the most important man in America right now.

Yes, Judge Kavanaugh is that important to both sides.

Which is why his nomination hearings started with attempted delays, manufactured outrage, and shouts of protest as Capitol Hill police had to clear a small mob from the Senate chambers. Both sides know what's at stake and both sides are probably wrong in their estimation of Judge Kavanaugh's power to influence America's laws and thus society in general, should he be confirmed as the 9th Supreme Court Justice, and thus fill Kennedy's vacated seat.

The shouts of protest and the manufactured outrage - which seems to be a cover for electoral anxiety as a result of the heat they're feeling from their base, as well as policy concerns on the part of Democrat Senators like Booker, Harris, and Blumenthal - were fairly standard fare for what seems to be becoming the norm for confirmation hearings. What was more interesting was the document demands that Democrats feel are essential for a supposedly fair hearing. Document demands that the Executive Branch have said they have complied with as far as reasonably possible.

The Trump administration has cited constitutional and executive privilege as reasons for not releasing all the documents demanded by Democrat Senators, apparently hundreds of thousands of documents - though it's hard to say what constitutes an individual document by that standard. Apparently, what they want to know is everything about Judge Kavanaugh's time working for George W. Bush's White House, as a counsel that helped shepherd John Robert's successful nomination and also that managed Miguel Estrada's unsuccessful nomination, as well as White House Staff Secretary. Any document that could link Kavanaugh to anything perhaps controversial is what they seem to be seeking.

Or is it?

Do they just want to delay the proceedings enough to somehow avoid a confirmation before the midterms and then if by some chance they regain both Houses of Congress, continue forthwith and vote down Kavanaugh's confirmation?

Or do they feel - as more and more political commentators are saying - that his confirmation is all but guaranteed and they need to paint Brett Kavanaugh as a dangerous conservative who will lead an assault on women, illegals, and perhaps anyone else who isn't white like him? Never mind that by all appearances, Kavanaugh is conservative but reasonable and will likely not be anywhere as radically originalist like a Justice Thomas has proven to be.

And so, their demand for documents. To delay and to portray Kavanaugh as dangerous.

On the other side of the aisle, there has been visible anger on the part of Republicans at the Executive's stonewalling of the Senate Judiciary Committee's requests for documents relating to former acting AG Sally Yates, whose 10 days in office in the transition period in early 2017 were marked by two controversial decisions:

1) Refusing to enforce President Trump's executive order on immigration from countries whose political situation warranted caution on the part of allowing people from those states to enter America.

2) Using the Logan Act to question Mike Flynn about his contact with former Russian ambassador Sergey Kislyak, a decision that ultimately led to Flynn being charged by Mueller's team for reportedly lying about his contacts.

The Logan Act is one of the more ridiculous pieces of legislation on the books, where it remains gathering dust and avoiding precedents. At least until acting AG Yates dusted it off. Senator Grassley's Judiciary Committee has been waiting for a long time for their requests for documents that might clarify Yate's thinking on both these questions. In May of 2017, Acting Assistant Attorney General Sam Ramer wrote to Senator Grassley that, "These records would implicate important executive branch confidentiality interests, including deliberations about the many sensitive law enforcement, national security, and policy matters that require an Attorney General's attention."

So, are we facing what-aboutism? Perhaps, although it seems that what-aboutism is mostly a cover for partisan tactics. The questions about Sally Yates really do concern how one should handle and how people will handle a transition period between administrations going forward. Expect to see far more Assistant and Deputy and Associate AG's and other important Administrative State bureaucrats fired on day one of any new administration, from here on in.

And yes, as many documents should be released as possible. Stonewalling does not help, regardless of what side does it, and regardless if requests for documents are merely a short-term tactic by the opposition who are desperate to somehow derail an almost certain confirmation.

Which brings us to the question of what to do with the Administrative State. It is indeed the fourth branch of government and has been for many years now. How should the Federal Government manage it? Oops, wrong people to ask. Just trying to loosen up the grip that federal employee unions have on their members, for example, resulted in a D.C. District Judge - Kentaji Brown Jackson - overruling the Trump administration. Never mind reforming the protections for the Civil Service that began with the Pendleton Civil Service Reform Act over 130 years ago.

Unelected, unassailable, unaccountable, and very powerful. And increasingly partisan. But don't you dare try to reform their power. Because if the Administrative State has become overwhelmingly Democrat then the branch of government that has the most influence on the daily lives of voters is a perennial Blue Policy Machine that can undermine any GOP administration if it sets its mind to it. Just ask Sally Yates.

Posted by Keeley at September 4, 2018 6:08 PM
Comment #431002

Democrats sitting on the confirmation hearings for Kavanaugh are simply hilarious. They have all indicated they would not vote for his confirmation. Yet, they insanely ask for more documents. Are we to believe they want more documents as they are trying to find a reason to vote for his confirmation, rather than against?

Posted by: Royal Flush at September 4, 2018 6:32 PM
Comment #431003

The dems put on a real circus today during the hearings especially Harris, Bookrr, and Blumenthal. The others were fairly ridiculous also.

Posted by: Rich KAPitan at September 4, 2018 6:37 PM
Comment #431156

And the democrat circus continues today with staged protest and outbursts from the idiots in the gallery.

Posted by: Rich KAPitan at September 5, 2018 12:47 PM
Comment #431204

Booker blunders, tells everyone that he is going to release confidential material but it backfires when it is found out the material has been cleared for release. Democrats grandstand blows up in their face.

Posted by: Rich KAPitan at September 6, 2018 7:47 PM
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