contrast, Kagan had no judicial opinions to her name, and John Roberts had fifty-two.15 Gorsuch, whose tenure on the bench was of a length comparable to Kavanaugh’s, had 240.16
Grassley spent weeks trying to work with Democrats on the process for handling Kavanaugh’s unwieldy paperwork, even though many of them had announced their opposition to the nominee from the beginning. He proposed making use of the electronic nature of the documents to allow keyword searches, but after Democrats refused to discuss reasonable ways to pare down the universe of documents, Republicans abandoned the keyword negotiations, convinced that Democrats were simply on a “government-funded fishing expedition.”17
Democratic recalcitrance ended up saving the nomination. Had they requested a large but defensible set of documents, the hearings could have been delayed for months. In fact, Feinstein had brokered such an agreement with Grassley, only to have her staff, with whom she was frequently at odds, back away from it. She was both more moderate politically than her staff and less inclined to blow up bridges with senators with whom she had long-standing relationships. Receiving no reasonable proposal from the Democrats, Grassley ended up requesting a manageable set of documents on his own. His obvious efforts to work with Feinstein had impressed Collins and Murkowski, who found Democratic obstruction outrageous.
The Senate Judiciary Committee decided to hire an “e-discovery firm,” marking the first time such techniques would be used in a Supreme Court confirmation process. The contractor they had in mind was already handling e-discovery for the Bush Presidential Library as it vetted Kavanaugh-related papers for release, so it could seamlessly share those documents with the Judiciary Committee. After committee Republicans got Senate approval for the contract, they notified the Democrats, and the company suddenly pulled out of the deal. The committee contracted with the e-discovery firm Relativity instead, this time opting not to let Democrats know beforehand.
Bill Burck, a former special counsel and deputy counsel to President George W. Bush, was Bush’s designated representative to review his records under the Presidential Records Act. Grassley’s team was on the phone with him several times a day. As soon as Burck and his team cleared each tranche of documents, they would be released. Documents were released on a rolling basis, whether they arrived at two a.m. on a Saturday or in the middle of the week.
Grassley put together a team of dozens to go through the documents. Working out of a windowless, rat-infested, cinder-block suite in the basement of the Dirksen Senate Office Building that they called “the dungeon,” the team of attorneys and law clerks pored over the paperwork. They looked for anything politically sensitive, and categorized them according to topic areas, such as detention, guns, abortion, executive power, and torture.
The staff were extremely proud of the innovative way they handled the paperwork, rapidly navigating arcane Senate contracting procedures and securing the manpower necessary to get through the many documents. But the Republicans’ focus on the mundane topic of document retrieval was also strategic. The goal, says Garrett Ventry, a communications strategist hired by the Judiciary Committee, was to “make it really, really boring, where the public wouldn’t care and their base would be deflated because they were fighting us over whether or not they had documents to review.” Fighting about documents meant they were not talking about Roe v Wade or Judge Alex Kozinski.
Chuck Schumer unwittingly helped Grassley’s office keep the focus on documents when he held a press conference on July 31. Joined by his Senate colleagues Dick Durbin and Dianne Feinstein and by assorted leaders of left-wing activist groups, he posed with a small pile of empty boxes labeled “missing records” and said he’d like to see them filled with Kavanaugh’s papers from his time as staff secretary. “I want to make clear, for just a sec, how aggressive the obstruction is,” he said.18
A few days later, Republicans on the Senate Judiciary Committee posed with a striking backdrop of 167 boxes representing the hundreds of thousands of pages that were being made available to the committee. In fact, they had been provided in digital form, which allowed for even easier searching and review.19 “If you were to stack up all these pages, it would be taller than the Big Ben, taller than the Statue of Liberty, taller than the Capitol dome, and taller than the Taj Mahal,” noted Senator Thom Tillis of North Carolina. “I think it’s more than enough for the Democrats to make a rational decision about supporting Judge Kavanaugh.”