Dem infighting erupts over Supreme Court pick

Democrats are fighting among themselves over how far to go to oppose Supreme Court nominee Brett Kavanaugh and tempers are starting to flare ahead of a decision that could weigh heavily on the midterm elections. 

Liberal activists, who are closely aligned with the party’s base, are losing patience with centrist Democrats who are on the fence over Kavanaugh, a judge with impressive credentials and the approval of the conservative Federalist Society.

But Senate Democratic leaders don’t want to twist the arms of vulnerable colleagues up for reelection in pro-Trump states, adding to the disappointment of activists.

“There’s a great deal of frustration,” said Neil Sroka, spokesman for Democracy for America, a liberal advocacy group that is pressing Senate Democrats to unify immediately against Kavanaugh.

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“We need to be training all of our firepower on Murkowski and Collins and we don't need to be wasting one shred of energy trying to push a Democrat in the right direction on this extremist nominee,” he added, referring to moderate Republican Sens. Susan CollinsSusan Margaret CollinsHere are the Senate Republicans who could vote to convict Trump Giffords, Demand Justice to pressure GOP senators to reject Trump judicial pick Senate confirms eight Trump court picks in three days MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiHere are the Senate Republicans who could vote to convict Trump Senate confirms eight Trump court picks in three days The Hill's Morning Report - Dem impeachment report highlights phone records MORE (Alaska), who are viewed as potential swing votes.

“There’s great deal of impatience amongst the grass roots for senators to get off the fence on Kavanaugh,” Sroka added.

Liberal activists argue that if Democrats unify early against Kavanaugh, it will put more pressure on Collins and Murkowski to oppose him, just as they opposed efforts to repeal ObamaCare in 2017 after Democrats unified against that effort.

“We’re looking for more clean statements of opposition from more senators,” said Elizabeth Beavers, associate policy director at Indivisible Project, a liberal advocacy group dedicated to defeating President TrumpDonald John TrumpPence: It's not a "foregone conclusion" that lawmakers impeach Trump FBI identifies Pensacola shooter as Saudi Royal Saudi Air Force second lieutenant Trump calls Warren 'Pocahontas,' knocks wealth tax MORE's agenda.

“We already know plenty about Kavanaugh,” she said. “In order to get on Trump’s shortlist, these people had to show willingness to gut reproductive rights and show hostility to the Affordable Care Act.”

Brian Fallon, the executive director of Demand Justice, a group that plans to spend $5 million on ads pressuring senators to oppose Kavanaugh, this week made a splash when he called out Sen. Tim KaineTimothy (Tim) Michael Kaine'Granite Express' flight to take staffers, journalists to NH after Iowa caucuses Overnight Health Care — Presented by Johnson & Johnson — Senate panel approves Trump FDA pick | Biden downplays Dem enthusiasm around 'Medicare for All' | Trump officials unveil program for free HIV prevention drugs for uninsured Trump's FDA nominee approved by Senate panel MORE (D-Va.) for taking a cautious approach to the nominee.

In a tweet, Kaine said he was “wondering” whether Kavanaugh would rule to uphold the Affordable Care Act, protect women’s right to an abortion and safeguard civil liberties.

Fallon pushed back with a sharply-worded tweet of his own: “We already know the answers to these questions, Tim Kaine. Stop playing political games and help us #StopKavanaugh.”

It was unusual public spat between two Democrats who had prominent roles on Hillary ClintonHillary Diane Rodham ClintonDemocrats battle for Hollywood's cash The House Judiciary Committee's fundamental choice Sanders, Omar to hit campaign trail in New Hampshire MORE’s 2016 presidential campaign — Kaine was her running mate and Fallon her spokesman.

Kaine on Thursday defended himself, comparing Democrats who want a snap judgment on Kavanaugh to Republicans who refused to give a hearing to Merrick GarlandMerrick Brian GarlandAppeals court clears way for Congress to seek Trump financial records Divisive docket to test Supreme Court ahead of 2020 Majority disapprove of Trump Supreme Court nominations, says poll MORE, former President Obama’s nominee to the Supreme Court in 2016.

“That’s just not the way I take the Supreme Court,” Kaine told The Hill. “I tried cases for 17 years, I’ve appointed [state] Supreme Court justices as governor. I certainly have opinions but I do feel like I’m supposed to read opinions, I’m supposed to read articles, I’m supposed to have an in-office interview [of] any Supreme Court nominee."

Kaine said that if he comes out immediately against Kavanaugh, he might not get a chance to meet the nominee and ask him about his views. 

He argued that Fallon also “criticized the Republicans for not being willing to meet with Merrick Garland.”

“I want to extend that courtesy that they wouldn’t extend to Garland,” he said.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden: 'No party should have too much power' Overnight Energy: Pelosi vows bold action to counter 'existential' climate threat | Trump jokes new light bulbs don't make him look as good | 'Forever chemicals' measure pulled from defense bill Overnight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills MORE (R-Ky.) refused to meet with Obama’s nominee in 2016 and Garland never received a confirmation vote.

Ross Baker, a professor of political science at Rutgers University, said that Senate Democratic Leader Charles SchumerCharles (Chuck) Ellis SchumerOvernight Health Care — Presented by Johnson & Johnson — Democrats call on Supreme Court to block Louisiana abortion law | Michigan governor seeks to pause Medicaid work requirements | New front in fight over Medicaid block grants House, Senate Democrats call on Supreme Court to block Louisiana abortion law Why a second Trump term and a Democratic Congress could be a nightmare scenario for the GOP MORE (N.Y.) is going to feel pressure from the base to crack the whip on centrists.

“He’s answerable to the base,” he said.

But Baker doesn’t think there’s much Schumer can do to pressure centrist Democrats.

“They’re going to have their votes conform to what their reading is of the voters in North Dakota or West Virginia.”

Sens. Heidi HeitkampMary (Heidi) Kathryn HeitkampThe Hill's Morning Report — Biden steadies in third debate as top tier remains the same Trump wins 60 percent approval in rural areas of key states Pence to push new NAFTA deal in visit to Iowa MORE (N.D.) and Joe ManchinJoseph (Joe) ManchinStatesmen seek bipartisan solutions to big challenges Both sides have reason to want speedy Trump impeachment trial No one wins with pro-abortion litmus test MORE (W.Va.) are two red-state Democrats up for reelection this year.

Senate Democratic Whip Dick DurbinRichard (Dick) Joseph DurbinSupreme Court poised to hear first major gun case in a decade Protecting the future of student data privacy: The time to act is now Overnight Health Care: Crunch time for Congress on surprise medical bills | CDC confirms 47 vaping-related deaths | Massachusetts passes flavored tobacco, vaping products ban MORE (Ill.) told reporters this week that there would not be an effort to whip red-state Democrats.

“They just don’t get it,” he said of liberal activists. “That’s counterproductive. Chuck SchumerCharles (Chuck) Ellis SchumerOvernight Health Care — Presented by Johnson & Johnson — Democrats call on Supreme Court to block Louisiana abortion law | Michigan governor seeks to pause Medicaid work requirements | New front in fight over Medicaid block grants House, Senate Democrats call on Supreme Court to block Louisiana abortion law Why a second Trump term and a Democratic Congress could be a nightmare scenario for the GOP MORE gets tough with senators. You know how that plays back home?”

Another head-turning moment came Thursday when Adam Jentleson, the former deputy chief of staff to Sen. Harry ReidHarry Mason ReidThe Hill's Morning Report — Pelosi makes it official: Trump will be impeached Doctors are dying by suicide every day and we are not talking about it Impeachment trial throws curveball into 2020 race MORE (D-Nev.) said Democrats should use the year-end government funding bill as leverage to press Republicans to turn over sensitive documents from Kavanaugh’s time as White House staff secretary under George W. Bush.

He argued in a Washington Post op-ed that Kavanaugh’s internal communications during the Bush administration “could shed light on his views on executive power and other critical issues that will probably come before the court.”

If Republicans refuse to make those documents available, “Democrats should force the issue by using the substantial power of the minority to grind the Senate to a halt,” including funding of the government beyond Sept. 30.

That bold suggestion was immediately rejected by Senate Democratic strategists.

“What a genius,” said one Democratic aide derisively.

A Democratic strategist close to a red-state senator called the idea “crazy.”

“Here’s the brutal reality: Unless that there’s new polling that I’m not aware of, this does not rank as one of the top five issues for the voters that end up deciding the red-state races,” the source said.

The strategist warned that it could backfire on Democrats if they “come out right off the bat and say 'we’re going to oppose him at all costs' irrespective of what they find.”

“I don't think that’s going to play well at the Senate level,” the source said. “It ain’t California and New York that’s electing a senator from Montana.”

Democrats facing tough reelections this year in states that Trump won by big margins also don’t want to get mixed up in a potential government shutdown a month before Election Day.

Sen. Jon TesterJonathan (Jon) TesterGOP braces for Democratic spending onslaught in battle for Senate Former rancher says failure to restore meat labeling law is costing rural America 'billions' Tester: Our forefathers would not have tolerated Trump asking Ukraine to investigate Biden MORE (D-Mont.) earlier this year panned Democratic threats to hold up a government funding measure over immigration as “stupid talk.”

But other Democrats think the year-end funding bill is fair game after McConnell triggered the nuclear option last year to strip the minority party’s power to filibuster Supreme Court nominees.

“The nuclear option was dropped on the process,” noted former Sen. Ben Nelson (D-Neb.), who represented a Republican-leaning state when he served in Congress and who played a prominent role in negotiating a compromise over appellate-level judicial nominees in 2005.

“I understand why they would use everything they possibly could because they’re not in the position they once were with 60 votes,” he said.

McConnell used a party-line vote last year to change Senate precedent and lower the threshold for confirming Supreme Court nominees from 60 votes to a simple majority.

Changing procedural rules with a party-line vote is so controversial that it’s likened in the Senate to using a nuclear weapon in warfare.

Nelson said Republicans should expect a bitter fight over the Bush-era documents because they are central to judging Kavanaugh’s record.

“When you nominate someone with a partisan background, it’s going to be very difficult not to disclose their partisan activities,” he said.

“I’m sure that some people will think these are extraordinary circumstances because they’re worried about what’s in those emails.”