Senate Minority Leader Chuck Schumer is refusing to meet with Supreme Court nominee Brett Kavanaugh until an agreement is reached about unearthing Kavanaugh’s lengthy paper trail — a move that sounds dramatic but is light on the substantive implications.
While it’s tradition for individual senators to sit down with Supreme Court picks, there’s nothing written in stone requiring senators to meet with a nominee before a vote. As Republicans have indicated in the past (see: Merrick Garland), they have no issue moving forward when established procedures are not upheld.
“If senators refuse to meet with Judge Kavanaugh, the consequence I guess would be that they would lose an opportunity to speak with him and learn more about his approach to the bench,” a spokesperson for Senate Majority Leader Mitch McConnell said plainly.
Meanwhile, McConnell has threatened to delay a vote on Kavanaugh until just before the midterm elections if Democrats don’t relent — forcing red-state Democrats in tough races into a difficult vote right before voters go to the polls.
The ultimatums are flying on both sides of the aisle. The only difference is that Democrats have little leverage to stop Kavanaugh.
They are hoping, however, that tactics like Schumer’s will shame Republicans into surfacing more of the nominee’s paper trail — which will give Democratic activists additional time to gin up pressure on moderate Republicans like Sens. Susan Collins and Lisa Murkowski and maybe even present the public with a more detailed and damning portrait of Kavanaugh’s record.
Democrats want more Kavanaugh papers, a push Republicans have called obstructionist
In recent weeks, Democrats have increasingly made the case that a more extensive review of Kavanaugh’s copious records — including those from his days as George W. Bush’s White House staff secretary — need to be undertaken in order to develop a comprehensive understanding of his positions.
Kavanaugh served as both White House counsel and staff secretary during the Bush administration. As staff secretary — a time that he’s characterized as a formative experience for his judicial practice — it’s possible that he engaged with millions of documents, a trove that Democrats are interested in continuing to mine.
“Documents from his time as staff secretary are critical to understanding his knowledge of and involvement with torture, warrantless wiretapping and the use of signing statements, to name just a few key issues,” Senate Judiciary Committee ranking member Dianne Feinstein said in a statement. “Republicans are claiming that Kavanaugh was nothing more than a paper pusher who told President Bush what was for lunch. That’s false, not to mention ridiculous.”
Republicans have called such efforts obstructionist and argued that the archive of documents that have been requested about Kavanaugh is among the largest that have been reviewed of any Supreme Court nominee. (If it takes long enough to obtain and analyze these papers, it’s possible but unlikely that Democrats could push the vote on Kavanaugh to past the midterms.)
In the short term, the fight over Kavanaugh’s paper trail has reached the point at which many Democrats are following Schumer’s lead and refusing to meet with Kavanaugh until Judiciary Committee leaders Chuck Grassley and Feinstein land on a consensus about his records, per the New York Times.
“Before Democrats commit to meeting with the nominee, we want to see a real commitment and progress toward providing the same information and documents to the Senate that [Justice Elena] Kagan did,” a Senate Democratic aide said. (Democratic Sen. Joe Manchin of West Virginia has already sat down with Kavanaugh.)
Democrats have emphasized that their request for more papers is simply comparable to the one that Republicans made during Kagan’s confirmation process. (Kagan was the White House’s solicitor general before her nomination to the Supreme Court.) Schumer, in floor remarks last week, also cited Republican requests for wide-ranging records during Justice Sonia Sotomayor’s confirmation. Republicans have hit back and said that they don’t think the documents from Kavanaugh’s staff secretary days are as pertinent to his nomination as those from his time on the bench.
“Senators already have access to Judge Kavanaugh’s 307 opinions he authored in 12 years as a D.C. Circuit judge, the hundreds more opinions he joined, and the 6,168 pages of material he submitted as part of his Senate Judiciary Committee Questionnaire,” Senate Judiciary Chair Grassley said in a statement, noting that his work as White House counsel would be scrutinized as well.
Grassley has slammed Democrats’ refusal to cooperate and independently moved ahead with a request for documents to the Bush library this past Friday. It did not include a push for papers from Kavanaugh’s time as staff secretary.
Given the recent withdrawal of Ryan Bounds’s nomination for a US Circuit judgeship over his racist college writings, Democrats are quick to note that some of the documents in Kavanaugh’s archives might be able to offer more insight into controversial past positions, not to mention his stances on hot-button issues like executive power, health care, and abortion rights.
Already, speeches have shown that Kavanaugh thought favorably of then-Chief Justice William Rehnquist’s dissent in Roe v. Wade and questioned whether President Richard Nixon should have been obligated to turn over the Watergate tapes.
It’s not clear how a delayed Supreme Court vote would play with voters
In the face of Democrats’ stalwart commitment to combing through Kavanaugh’s paper trail, McConnell has said he could push a vote for the nominee until right before the midterms if they don’t let up, according to a Politico report. It’s not clear, however, if this move would be as damaging to Democrats as McConnell framed.
Democrats who need to campaign would still likely take the time they needed to do so — although they may need to miss some votes. Nevada Sen. Dean Heller — the only endangered Republican actually sticking around for reelection — would likely also find the timing difficult.
Another uncertain variable is the impact that a Supreme Court vote would have on the midterm electorate. There are concerns that a losing vote — especially one close to the general election — could demoralize Democrats, but it’s also possible that a defeat of this magnitude could fire people up. What’s more, an extended Supreme Court fight would give activists on both sides of the aisle more time to hammer red-state Democrats and Republican swing votes alike.
“To me, it’s in their best interest to have that vote done for a lot of their red-state senators who are facing their voters,” Sen. John Thune, the third highest-ranking Republican in the GOP Senate conference, told Politico.
But Erica Mauter of MoveOn.org, a liberal activist group, argues that keeping up the fight for Kavanaugh’s records is the most important thing Democrats can do to keep voters engaged. “The more that Democrats stand on principle in demanding relevant information about the nominee, the more enthusiastic voters will be to support them in November,” she said in a statement.
Based on Republicans’ willingness to steamroll opposition while they’re in the majority, these paper trail arguments might not be enough to block Kavanaugh, but they could wind up resonating with voters at the polls.