Thanks to Harry Reid, Senate Democrats don’t have a lot of options in opposing the nomination of Brett Kavanaugh to the Supreme Court. Back in 2013, when Reid threatened to get rid of the filibuster for federal judges, Republicans pleaded with him not to do it. He did it anyway. And although he exempted Supreme Court nominees, Mitch McConnell returned the favor the minute the Democrats tried to filibuster the nomination of Neil Gorsuch in 2017.
In the case of Kavanaugh, all the Democrats can do is delay—and they plan to.
As an appeals court judge for 12 years, Kavanaugh has a substantial volume of written opinions, giving Judiciary Committee staffers plenty to pore over. The trouble, for Democrats, is that these opinions are already well-known, and the nominee is being praised by legal scholars across the political spectrum. So Dems are turning to Plan B: Try to stall a vote until after the November elections by requesting every single document that is in any way linked to Kavanaugh’s three years as staff secretary in the George W. Bush administration—a position that Judiciary chairman Chuck Grassley has described as the “inbox and outbox to the Oval Office.”
The delay strategy is made clear in an otherwise dry letter to the Bush library sent last month. Asking for the judge’s comprehensive White House records, Democrats asserted a need to see: “All records containing documents written by, edited by, prepared in whole or part by, under the supervision of, or at the direction of Mr. Kavanaugh, as well as documents referencing Mr. Kavanaugh by name, initials, or title, and documents received by or sent to him.” If Kavanaugh left any sticky notes lying around, presumably the Dems want those, too.
Judiciary Committee Democrats say the staff secretary files are necessary to provide advice and consent. But a number of these same lawmakers have already announced they won’t support Kavanaugh. Of course, Democrats don’t really want the staff secretary files, which number more than a half-million pages and nearly a similar number of email files. Weeks ago, according to one GOP Judiciary committee aide, Republicans proposed using terms or categories to target and retrieve relevant staff secretary documents. Democrats said No.
These documents won’t illuminate Kavanaugh’s judicial thinking. For that, the Senate has access to 12 years worth of court opinions. Grassley has also requested files from Kavanaugh’s time working for Ken Starr, his time in the White House Counsel’s office, and those related to his D.C. Circuit Court nomination, some of which have already been made public.
What the Democrats’ request would do is force archivists to sift through tens of thousands of extra pages, potentially pushing the confirmation process past the November election, by which time Democrats hope to regain their Senate majority. The National Archives warned Grassley in a letter this month that review of the documents, which could total over 900,000 pages, won’t be complete until October 2018—months past the requested August 15 deadline.
Grassley said Friday that the hearings would begin in early September. That’s the right course. If Democrats think Kavanaugh isn’t qualified for the Supreme Court, they’ll need to come up with something better than a disingenuous delay tactic.
