Whatever that accommodation is, Nelson says that unsatisfied public requesters—the press, for example—would have little luck getting more than “what the interested parties agree will be provided to the Senate” out via the FOIA process, barring the event that someone was willing, and saw it worthwhile, to litigate the matter.
But to take a step back from the legal landscape, the White House would inevitably face withering criticism from elements of the press and Kagan opponents if significant portions of Kagan’s work is withheld on one ground or another. Even the Bush administration, which drew much ire from historians and archivists for an early executive order that significantly limited the power of the Presidential Records Act to bring historical records to light, conceded that the law installed a “presumption of disclosure” when it came to Roberts’s records.
Whatever procedural wrangling awaits the documents, if the Roberts experience at the Reagan library five years ago is any indication, a lot of work lies ahead of the archivists in Little Rock.
“It was approximately 80,000 pages with him,” says Mike Duggan, supervisory archivist at the Reagan library.
Every one had to be checked to verify that releasing the information was permissible under the Freedom of Information Act’s withholding restrictions, and under a now Obama-repealed Bush era executive order that required the Archives to give ex-presidents and their representatives a right to review the documents and make constitutionally based executive privilege claims before release. For purposes of this review, and to help with making copies—one to be shipped to the White House for transfer to the Senate, and one for public access at the Archives’ Washington headquarters—the Reagan archivists were bolstered by detailees from other presidential libraries and the NARA general counsel’s office. Members of the team were later given a special citation for exemplary service under “extraordinary time constraints” by the Archives’ director.
“I was working sixteen hour days the whole time,” Duggan says, warning that Kagan’s records included an additional burden: she worked after the introduction of e-mail to the White House. “That could virtually double the pages you’re looking at.”
Robert’s nomination came on July 19, 2005, and it wasn’t until just after Labor Day that Duggan and the Reagan Library were ready to make the documents available. While it’s possible the Clinton Library got a head start by keeping an eye on Kagan’s ascent through Supreme Court short lists, if, e-mail notwithstanding, the two nominees have a similar amount of records, that timeline suggests they might not all be available until early July, the month before Kagan’s hearings and confirmation vote are expected.