On "rush[ing]" hearings and reading time

Blog ››› ››› SARAH PAVLUS

Today, Senator Patrick Leahy announced that the confirmation hearings for Supreme Court nominee Elena Kagan would begin on June 28 - which, as he noted, is a timeline comparable to those set during the nominations of Justices Sotomayor and Roberts - and yet still some have sought to portray Kagan's nomination as "rush[ed]."

For example, a Drudge headline linking to a report on the announcement read: "RUSH, RUSH: Kagan hearings start in June..." Over at NRO's Bench Memos, Ed Whelan headlined his post on the newly-set timeline "Rush to Kagan Hearing," and wrote:

Senator Leahy has set Monday, June 28 as the opening date for Elena Kagan's confirmation hearing. But it's not even clear yet when Kagan's 160,000 pages of White House records from the Clinton administration will be made available.

Leahy is clearly more interested in ramming the Kagan nomination through the committee than in ensuring a careful exploration of Kagan's legal views. If the White House were serious about its commitment to make Kagan's White House records available for meaningful review, it would insist that the hearing not be scheduled until it is clear when those records will be provided. This process threatens to be a sham.

Comparisons of time from nomination to hearing for previous nominees are simply inapt if a major part of Kagan's record isn't available for thorough review in advance of the hearing date.

Is the Kagan timeline unusual? In fact, the confirmation timeline of Justice Roberts provides a pretty reasonable point of comparison.

On July 19, 2005, President Bush announced that he was nominating Roberts to fill a seat being vacated by Justice Sandra Day O'Connor. His confirmation hearings were initially scheduled to begin on September 6, but were postponed until September 12 following the death of then-Chief Justice William Rehnquist on September 3 and the landfall of Hurricane Katrina in Louisiana.

So, not only is the duration of time from nomination to hearing comparable, but like Kagan, Roberts spent several years as an administration aide, and when he was nominated, there were tens of thousands of archived pages related to his work to be reviewed for release.

Sen. Specter, then the chairman of the Senate Judiciary Committee, announced Roberts' initial hearing start date before archivists were able to establish a precise date for completion. The day of Specter's announcement, an archivist commenting on the timeline of the release of roughly 50,000 pages Roberts' records from the Reagan Library said: "We are committed to releasing this material as soon as possible, given the challenges of the review process. Under normal circumstances, a typical review of this nature takes three to four months. With additional resources that we have dedicated, we hope to release this material by mid August." In reality, while some archived records from the Reagan Library and other collections were released mid-August, others were released in the final days of August and early September.

(It appears that documents related to the Kagan nomination will be released on a similarly rolling basis, given that Sen. Leahy and Sen. Sessions wrote in their request to the Clinton Library: "In order to expedite your response to the Committee's request, we ask that you produce documents to us on a rolling basis as you identify categories responsive to our request.")

It should come as no surprise that last year, Media Matters similarly documented the myth that Democrats rushed Sotomayor's confirmation schedule. Of perhaps particular relevance, we noted media reported without challenge Sen. Sessions' request for more information related to Sotomayor and his call to delay her hearing while ignoring the fact that he urged fast action on Justice Alito's nomination, reportedly saying, "You don't have to read everything he's written."

Hopefully this time, the media won't make the same mistake. Already, Sessions has indicated a willingness to call for a delay to Kagan's nomination, should he and his Republican colleagues find the current schedule provides an insufficient amount of time to review Kagan-related documents from the Clinton Library.

Posted In
Government, Nominations & Appointments
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