Delay, demand, derail: The Democrats’ attack plan against Brett Kavanaugh

By 2:30 p.m., Trump’s yet-to-be-named Supreme Court nominee, to be selected from a list of 25 prospective candidates, was already facing opposition from a growing number of Senate Democrats.

“The president’s list of potential nominees are complete non-starters,” Sen. Kamala Harris, D-Calif., said in a statement that day. “They are conservative ideologues instead of mainstream jurists. We cannot and will not accept them to serve on the highest court in the land which is supposed to stand for equal protection under the law and justice for all.”

In that short span of time, the battle lines had been drawn and the opening shots of the confirmation battle for Judge Brett Kavanaugh, Trump’s nominee, were fired.

That battle will reach hit a new phase on Tuesday with the start of Kavanaugh’s confirmation hearing before the Senate Judiciary Committee.

But for Senate Democrats, the hearing marks a culmination of weeks of effort aimed at derailing his nomination.

Since Trump named Kavanaugh as his nominee during a prime-time event at the White House on July 9, Democrats have worked to drum up opposition by highlighting his views on abortion, healthcare and executive power, and launching a heated battle for access to Kavanaugh’s records from his tenure serving in George W. Bush’s White House.

Their goal: To defeat the president’s second nominee to the Supreme Court, one who, if confirmed, would shift the high court’s ideology to the right.

But Democrats face an uphill battle, as they have control of 49 seats compared to Republicans’ 50. A replacement for the late Sen. John McCain, R-Ariz., is expected to be named before the Senate votes to confirm Kavanaugh.

Some Senate Democrats have no misgivings about the challenge they face as the minority party, but believe a thorough review of Kavanaugh’s record will give them a remote chance of convincing moderate Republicans to vote with them.

“They have 51. We have 49. I’m assuming that they have the better hand. I’ve always viewed it as uphill,” Sen. Tim Kaine, D-Va., told the Washington Examiner. “But I think there are a number of aspects of the record that upon fair reflection, would cause concern.”

The issues

[Related: Supreme Court nominee Brett Kavanaugh on the major issues]

Almost immediately after news of Justice Anthony Kennedy’s retirement broke in late June, Democrats and liberal advocacy groups began raising concerns about the impact a Supreme Court with five conservative justices would have on access to affordable healthcare and the future of abortion rights.

And the focus on those issues has continued after Trump announced Kavanaugh as his nominee, as his opponents claim he was nominated specifically for his opposition to the landmark case Roe v. Wade.

Kavanaugh has not said whether he would vote to overturn Roe, though he did tell the Senate Judiciary Committee during his 2006 confirmation hearing he would “follow Roe v. Wade faithfully and fully” if confirmed to the U.S. Court of Appeals for the District of Columbia Circuit.

He did, however, provide a glimpse last year into how he may rule in cases involving abortion when he dissented from a ruling in a case involving an illegal immigrant teenager seeking an abortion. Kavanaugh wrote in his dissent that the government was reasonable in its desire to transfer the young woman to a sponsor rather than “forcing the minor to make a decision in an isolated detention camp with no support network available.”

He also criticized the majority’s opinion in the case, writing it was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”

Still, that hasn’t stopped Senate Democrats and liberal advocacy groups from claiming that if confirmed, Kavanaugh could provide the fifth vote to overturn Roe.

On healthcare, some Senate Democrats, including Sens. Sheldon Whitehouse, D-R.I., and Sherrod Brown, D-Ohio, have said Kavanaugh’s views on Obamacare contributed to their decisions to oppose his nomination.

Supporters of the healthcare law are specifically watching a lawsuit in Texas that would eliminate Obamacare’s protections for people with pre-existing conditions. They predict that if the case makes its way to the Supreme Court, Kavanaugh would vote to overturn the law.

“That could have tremendous implications for the protection of individuals, families that have pre-existing conditions in their history, that’s why it’s critical for us to understand his entire record,” Sen. Ed Markey, D-Mass., told the Washington Examiner.

It’s Kavanaugh’s views on executive, power, though, that have drawn new attention, particularly with special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election.

Kavanaugh’s detractors point to a 2009 Minnesota Law Review article in which he suggested Congress enact statutes allowing for the deferment of civil suits, criminal investigations, and prosecutions of a sitting president.

They’ve also warned about Kavanaugh’s views on whether a sitting president can be indicted and whether the president has to comply with a subpoena, issues experts believe may come before the Supreme Court.

“This issue of over-deference to an executive is assuming greater importance,” Kaine said. “You want a justice who is going to stand up strong, have a backbone against any president or any Congress. That’s why you give them life tenure. And if you feel like, man I’m not really sure that they’re going to stand up against the executive — at this particular moment in time, there’s so many issues from this administration that are about executive power that are going to the Supreme Court.”

As Kavanaugh’s confirmation hearing draws near, Democrats are continuing to shine a light on the Supreme Court hopeful’s views on healthcare, abortion and executive power, posting tweets with #StopKavanaugh and #WhatsAtStake, delivering soliloquies the Senate floor, and appearing at rallies hosted by advocacy groups.

“I believe that once the American public comes to know and understand Brett Kavanaugh’s views on healthcare, abortion rights, presidential power, and environmental regulations, that they will insist that their senators vote against his confirmation,” Nan Aron, president of the Alliance for Justice, a left-leaning judicial advocacy group, said.

The paper fight

In the days following Kavanaugh’s nomination, Senate Democrats mounted a fight over access to a trove of documents from his tenure as White House staff secretary for Bush, a role in which he served from 2003 to 2006.

“What Republicans are doing is making every effort to hide Brett Kavanaugh’s record from public scrutiny, and what Americans deserve particularly given the huge stakes involved in filling this particular seat on the Supreme Court, it’s incumbent upon all of us to know what’s in his record,” Aron said.

So far, more than 287,000 pages of documents from Kavanaugh’s tenure in the executive branch have been made public. Staff for Judiciary Committee Chairman Chuck Grassley, R-Iowa, meanwhile, has reviewed more than 430,000 pages of Kavanaugh’s records, which Grassley said is twice the amount for any previous Supreme Court nominee.

Grassley has rebuffed demands from Democratic senators to release Kavanaugh’s documents from his time as staff secretary, arguing the requests amount to a fishing expedition designed to draw out and obstruct Kavanaugh’s nomination. He and other Senate Republicans also point to Kavanaugh’s 12-year judicial record on the U.S. Court of Appeals for the District of Columbia — which has produced nearly 300 written opinions — as providing crucial insight into his views on hot-button issues.

But for Senate Democrats, the records from Kavanaugh’s three years as staff secretary are vital to understanding his thinking on controversial issues that arose during Bush’s presidency.

“We’re going to push to make sure that we know everything that is relevant to this nomination so that it is made public,” Markey said. “And that will help to inform the public as to whether or not their senators should be voting for him.”

In an effort to gain access to Kavanaugh’s staff secretary records, Senate Minority Leader Chuck Schumer, D-N.Y., and Sen. Dianne Feinstein, D-Calif., the Judiciary Committee’s top Democrat, have both attempted to bypass Grassley.

In late July, Schumer appealed directly to Bush, sending the former president a letter urging him to authorize the release of records dating back to Kavanaugh’s tenure in the White House.

Feinstein and her fellow Judiciary Committee Democrats, meanwhile, asked the National Archives for all documents related to Kavanaugh’s White House service from 2001 to 2006, which includes his years as staff secretary.

The Archivist of the United States, however, denied the request.

Democrats have now turned to other means to procure more of Kavanaugh’s documents. Early last month, all 10 Democrats on the Judiciary Committee filed Freedom of Information Act requests with the National Archives, Justice Department, Department of Homeland Security, and Central Intelligence Agency seeking records pertaining to Kavanaugh’s time as an associate in the White House counsel’s office and as staff secretary.

Sen. Richard Blumenthal, D-Conn., who led the effort, called the request an “extraordinary step” that is “unprecedented and unfortunate.”

If Democrats don’t obtain access to Kavanaugh’s full record, Schumer said they were ready to sue the National Archives for the documents.

Last week, Feinstein sent a letter to William Burck, a former Kavanaugh deputy who is vetting the records for release, requesting he explain any “redactions, alternations, or omissions in the documents” released so far.

“Judge Kavanaugh’s records are critically important for the Senate to perform its due diligence and fulfill our constitutional advice-and-consent responsibility,” Feinstein wrote. “There are legitimate reasons for information to be redacted, and possibly withheld altogether. But without any explanation of what is being done and why, we cannot have confidence in the integrity of the documents that we have received, which unfortunately still represents only a fraction of Judge Kavanaugh’s full record.”

Even as a vote on Kavanaugh’s nomination gets closer, Democrats haven’t given any indication they intend to back off their requests for his record.

“We’re going to work as hard as we can, get out every bit of information, and I think the American people will have a good idea as to who he is,” Markey said of Kavanaugh. “We haven’t got all the information yet, so that’s our job.”

While Democrats have taken their own steps to obtain more of Kavanaugh’s White House record, others outside the halls of Congress are also working to gain access to documents.

Fix The Court, a nonpartisan group that advocates for a transparent judiciary, joined forces with American Oversight to file Freedom of Information Act lawsuits for Kavanaugh’s records.

Their suit against the Justice Department, which focuses on correspondence between Kavanaugh and top officials with the Office of Legal Counsel from 2001 to 2006, has led to the release of more than 400 pages.

At least 800 more pages from the Justice Department are expected to be processed by the agency.

“There’s a happy medium between obstruction and a seven million paper goose chase,” Gabe Roth, Fix The Court’s executive director, said. “You think of all the things that went on during Bush’s time in office, these are serious issues with national security, especially with the issues that are still working through the court. If we’re going to impugn the nominee and say he was involved in all these things, maybe by releasing all his files, you’ll see he was only involved in a few scandals.”

But Michele Swers, a professor of American government at Georgetown University, said it’s unlikely the fight over documents, considered to be more of a procedural argument, is effective among the public.

But it could buy Democrats more time, she said.

“What they do allow for is stalling for time to find other areas to drum up opposition,” Swers said. “If they can kind of drag their feet and drag it out, you run out of time to consider the nominee in this Congress. But they don’t really have a lot of procedural leverage so they’re using whatever tools they are able to.”

The Trump associates

Though the fight over documents emerged as a flashpoint in Kavanaugh’s confirmation battle, Democrats attempted to leverage the legal issues involving two of Trump’s former close aides to slow consideration of Kavanaugh’s nomination.

On Aug. 21, a federal jury in Alexandria, Va., found Paul Manafort, Trump’s former campaign chairman, guilty of eight counts of tax and bank fraud.

Almost simultaneously in New York, Michael Cohen, Trump’s former lawyer, pleaded guilty to eight counts including tax fraud and making false statements to banks.

Among the charges were two campaign finance violations related to hush-money payments Cohen made to former Playboy model Karen McDougal and adult film actress Stormy Daniels, who claimed they had affairs with Trump more than a decade ago.

The payments were made just before the 2016 presidential election, and Cohen said in court he made the payments “in coordination with, and at the direction of, a candidate for federal office.”

Following Cohen’s guilty plea, Senate Democrats painted Trump as an “unindicted co-conspirator” and claimed Kavanaugh’s nomination, as a result, was tainted.

“The president, identified as an unidentified co-conspirator of a federal crime, an accusation made not by a political enemy but by the closest of his own confidants, is on the verge of making a lifetime appointment to the Supreme Court, a court that may some day soon determine the extent of the president’s legal jeopardy,” Schumer said during a speech on the Senate floor.

Cohen’s guilty plea, coupled with Manafort’s conviction, prompted some Senate Democrats to refuse to meet with Trump’s nominee.

Sen. Mazie Hirono, D-Hawaii, canceled her meeting with Kavanaugh, saying at the time Trump “does not deserve the courtesy of a meeting with his nominee.”

Markey also announced he would not sit down with Kavanaugh, saying his nomination is “tainted and should be considered illegitimate.”

All Democrats on the Judiciary Committee have requested Grassley postpone Kavanaugh’s confirmation hearing as a result of the guilty plea and conviction.

“[T]here is no legitimate reason for the Senate to rush this nomination and fail to perform its constitutional duty,” the 10 Democrats wrote in a letter to Grassley. “This is especially true, when the president, who faces significant legal jeopardy, chose the one candidate who has consistently and clearly expressed doubt as to whether a sitting president can be investigated or indicted for criminal wrongdoing.”

The legal troubles for Cohen and Manafort compounded Democrats’ concerns with Kavanaugh’s views on executive power.

“To some degree, the stakes got higher … with Manafort, Cohen and all of that because some of the issues about separation of powers and are you overly deferential to the executive, which is I think a significant question about Judge Kavanaugh,” Kaine said. “Would that be important in 1970 or 2030? I don’t know. But that’s a really important issue right now.”

Still, Grassley has rejected calls to postpone Kavanaugh’s confirmation hearing, pointing out that Justices Ruth Bader Ginsburg and Stephen Breyer were confirmed by the Senate when President Bill Clinton was under investigation.

The movement

Senate Democrats waging their battle in Washington, D.C., are being joined by a large coalition of liberal groups working to boost opposition outside of the beltway.

Abortion rights groups have launched ad campaigns stating that Kavanaugh, if confirmed, could vote to overturn Roe v. Wade and strip Americans with pre-existing conditions of their insurance coverage.

Their focus has largely been on vulnerable Democrats representing states Trump won, as well as Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, who support abortion rights.

In addition to taking to the airwaves, more than 80 groups joined a national day of action on Aug. 26 to protest Kavanaugh’s nomination.

“As a general matter, people are not really engaged into action by process. People think about how something affects their lives and the issues that affect our lives run through the Supreme Court at one time or another,” Elizabeth Beavers, associate policy director of Indivisible, said. “People are highly aware of the enormous impact the Supreme Court has. Immigrant rights, abortion rights, LGBT rights, people understand this is about the balance of the court.”

Beavers acknowledges that Senate Democrats have done a decent job at identifying issues with Kavanaugh’s nomination and “what’s at stake in this fight.”

But where they have stumbled, she said, is with their failure to unequivocally commit to opposing his nomination.

“There’s not much reason for them to continue to hold out,” Beavers said. “We don’t think this is business as usual. We don’t think this is normal circumstances. The path to victory is narrow here. If we’re actually going to defeat Kavanaugh, you either win or lose on the Senate floor and you have the votes to bring him down or you don’t. We have to start consolidating opposition otherwise we can’t really focus pressure on flip-able senators.”

To pressure Senate Democrats to unite in opposition to Kavanaugh’s nomination, Indivisible, NARAL Pro-Choice America, Demand Justice, MoveOn.Org and other liberal groups launched “Whip the Vote.”

Roughly two dozen Democrats have yet to explicitly pledge opposition to Kavanaugh, and the campaign seeks to push them to do so.

“If we have a steady stream of Democrats coming out in opposition and a clear line-up showing who the decision-makers are going to be, it really ups the pressure for those who are still on the fence,” Beavers said.

Beavers acknowledged Senate Democrats don’t have much power to stop or delay Kavanaugh’s confirmation given the Republican control of the Senate, but said it’s time for Schumer to “whip the vote and hold the caucus together.”

“We don’t really have a lot of time here,” Beavers said. “We have to see this singular ask being to vote no. It makes the most sense that the next step is for Democrats to unite in opposition.”