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 CollinsGrassley panel scraps Kavanaugh hearing, warns committee will vote without deal Collins 'appalled' by Trump tweet about Kavanaugh accuser Poll: More voters oppose Kavanaugh’s nomination than support it MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiMurkowski says she’ll wait until Ford testifies before making decision on Kavanaugh Alaska gov, lieutenant gov come out against Kavanaugh The Memo: Tide turns on Kavanaugh 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 TrumpHannity urges Trump not to fire 'anybody' after Rosenstein report Ben Carson appears to tie allegation against Kavanaugh to socialist plot Five takeaways from Cruz, O'Rourke's fiery first debate 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 KaineSherrod Brown says he's 'not actively considering' running for president The Hill's Morning Report — Sponsored by United Against Nuclear Iran — GOP again has momentum on Kavanaugh rollercoaster Poll: Kaine leads GOP challenger by 19 points in Va. Senate race 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 ClintonFive takeaways from Cruz, O'Rourke's fiery first debate Heller embraces Trump in risky attempt to survive in November Live coverage: Cruz, O'Rourke clash in Texas debate 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 GarlandFeinstein to GOP: Show some heart to Kavanaugh accuser Dem senator praises Ford opening the door to testifying Budowsky: Kavanaugh and the rights of women 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 McConnellGOP, Kavanaugh accuser struggle to reach deal GOP making counteroffer to Kavanaugh accuser The Hill's 12:30 Report — Trump questions Kavanaugh accuser's account | Accuser may testify Thursday | Midterm blame game begins 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 SchumerTrump, GOP regain edge in Kavanaugh battle READ: President Trump’s exclusive interview with Hill.TV The Hill's 12:30 Report — Trump slams Sessions in exclusive Hill.TV interview | Kavanaugh accuser wants FBI investigation 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 HeitkampGOP Senate candidate: Allegations against Kavanaugh 'absurd' The Memo: Tide turns on Kavanaugh McCaskill to oppose Kavanaugh nomination MORE (N.D.) and Joe ManchinJoseph (Joe) ManchinCook Political Report moves Texas Senate race to ‘toss-up’ The Memo: Tide turns on Kavanaugh McCaskill to oppose Kavanaugh nomination MORE (W.Va.) are two red-state Democrats up for reelection this year.

Senate Democratic Whip Dick DurbinRichard (Dick) Joseph DurbinGrassley to administration: You must consult Congress on refugee cap Overnight Health Care: Senators target surprise medical bills | Group looks to allow Medicaid funds for substance abuse programs | FDA launches anti-vaping campaign for teens Bipartisan group wants to lift Medicaid restriction on substance abuse treatment 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 SchumerTrump, GOP regain edge in Kavanaugh battle READ: President Trump’s exclusive interview with Hill.TV The Hill's 12:30 Report — Trump slams Sessions in exclusive Hill.TV interview | Kavanaugh accuser wants FBI investigation 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 ReidKavanaugh furor intensifies as calls for new testimony grow Dems can’t ‘Bork’ Kavanaugh, and have only themselves to blame Dem senator: Confidential documents would 'strongly bolster' argument against Kavanaugh's nomination 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) TesterMontana lawmakers cheer recommendation to ban mining north of Yellowstone Cook Political Report moves Texas Senate race to ‘toss-up’ Trump Jr. campaign event looks for new venue after Montana restaurant declines to host 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.”