Published on July 11, 2018
Brett Kavanaugh seems like he will make a superb Supreme Court justice. I knew him a bit when he was the staff secretary in the George W. Bush White House, and should note in the interest of full disclosure that in judging his qualifications now I am therefore much affected by the experience of having been very impressed by both his intellect and his character back then. The person I saw in action then is someone I would very comfortably entrust with the responsibilities a justice has on the Court.
But Kavanaugh’s time in that particular job in the Bush administration is turning out to present some challenges to his confirmation process, not so much on substantive grounds as on practical ones. Over at Politico, Josh Gerstein notes that the immense paper trail that Kavanaugh built up then could prove tough for senators and their staffs to navigate. As he writes:
Kavanaugh’s paperwork predicament — stemming from two years he spent in President George W. Bush’s White House counsel’s office and just over three as Bush’s staff secretary — is not unique. Several recent Supreme Court nominees, including Chief Justice John Roberts and Justice Elena Kagan, also had White House stints that led to review and release of large volumes of records prior to their hearings.
But the quantity of files potentially at issue in Kavanaugh’s case could be unprecedented. Former officials believe millions of pages of emails and other documents circulated through Kavanaugh’s office during his time as staff secretary.
That is surely true. But the nature of the job of the White House staff secretary means that most documents that “circulated through Kavanaugh’s office” while he had that job wouldn’t really tell senators anything about him, and shouldn’t be considered on par with documents he himself produced—in the counsel’s office and in other jobs.
The staff secretary is basically the traffic cop directing the paper flow in the White House. The job was created in the Eisenhower Administration in response to concerns (lodged by both President Truman at the end of his term and the so-called Hoover Commission set up to help reorganize the executive branch) about disorder in the processes that existed to inform the president’s decision-making. The job went through various changes over the years, but its current form was basically established in the Reagan Administration. Its purpose is to carefully control the paper flow to and from the president, so that decisions are made in an orderly way, nothing is lost in the shuffle, the legal requirements for archiving records are carefully adhered to, and, maybe most important, the president receives the advice and opinions of the full range of his staff.
The staff secretary has a decent-sized team working under him, but the person in charge is generally an experienced lawyer—a person with intense attention to detail, no patience for cutting corners, and a willingness to insist that various White House offices and the colorful characters who often occupy them do their jobs and play their parts. In a normal White House, staffing a presidential decision memo (to take one prominent example of the role of the staff secretary) is exacting, frustrating work, and getting it right is essential.
But one particularly frustrating part of the job is that it is in essence procedural and not substantive. The staff secretary can be influential in a few ways: by sheer proximity to the president (few people spend more time with the chief executive), by exercising some judgment about what documents flow to the president and which do not, and by making prudential choices in the staffing process about which of the competing views of various White House offices and officials to draw out or to insist are further represented in the papers that reach the president. But none of these things would really be evident by examining the documents that circulated through the staff secretary’s office 15 years ago.
The staff secretary does not produce presidential decision memos. They are produced by the relevant policy staff, and while the staff secretary’s office can communicate requests for changes on behalf of other White House offices, revisions are made by the policy staffer who produced the document. In fact, the staff secretary is basically the one senior White House staffer whose personal views are nearly never expressed in the paperwork that goes to the president.
A review of all the paperwork that circulated through Kavanaugh’s office when he was staff secretary would pretty much amount to a review of all the paperwork that circulated through the White House in those years, and yet would also reveal essentially nothing about Kavanaugh. It would mostly amount to a monumental waste of the Senate’s time. At the very least, the decision about whether and how intensely to delve into that particular immense volume of documents should be informed by some sense of the character of the job.
— Yuval Levin is the editor of National Affairs and a fellow at the Ethics and Public Policy Center.