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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 CollinsWhoopi Goldberg blasts Republicans not speaking against Trump: 'This is an attempted coup' Democrats face increasing pressure to back smaller COVID-19 stimulus Team Trump offering 'fire hose' of conspiracy Kool-Aid for supporters MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiWhoopi Goldberg blasts Republicans not speaking against Trump: 'This is an attempted coup' The Hill's Morning Report - Presented by the UAE Embassy in Washington, DC - Calls mount to start transition as Biden readies Cabinet picks Murkowski calls on Trump to begin transition process, decries 'pressure campaign on state legislators' 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 TrumpBiden team wants to understand Trump effort to 'hollow out government agencies' Trump's remaking of the judicial system Overnight Defense: Trump transgender ban 'inflicts concrete harms,' study says | China objects to US admiral's Taiwan visit 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 KaineDemocrats face increasing pressure to back smaller COVID-19 stimulus Rick Scott tests positive for coronavirus Grassley tests positive for coronavirus 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 ClintonThe Hill's 12:30 Report - Third vaccine candidate with 90% efficacy Biden won — so why did Trump's popularity hit its highest point ever? The Hill's Morning Report - Presented by the UAE Embassy in Washington, DC - Calls mount to start transition as Biden readies Cabinet picks 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 step down as top Democrat on Judiciary Committee The Hill's Morning Report - Presented by the UAE Embassy in Washington, DC - Calls mount to start transition as Biden readies Cabinet picks Democrats brush off calls for Biden to play hardball on Cabinet picks 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 McConnellFeinstein to step down as top Democrat on Judiciary Committee Voters want a strong economy and leadership, Democrats should listen On The Money: Biden to nominate Yellen for Treasury secretary | 'COVID cliff' looms | Democrats face pressure to back smaller stimulus 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 SchumerChuck SchumerUS national security policy in the 117th Congress and a new administration Voters say Biden should make coronavirus vaccine a priority: poll New York City subway service could be slashed 40 percent, officials warn 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 HeitkampFive House Democrats who could join Biden Cabinet Biden names John Kerry as 'climate czar' in new administration OVERNIGHT ENERGY: Barrasso to seek top spot on Energy and Natural Resources Committee | Forest Service finalizes rule weakening environmental review of its projects | Biden to enlist Agriculture, Transportation agencies in climate fight MORE (N.D.) and Joe ManchinJoseph (Joe) ManchinVoters split on eliminating the filibuster: poll OVERNIGHT ENERGY: Barrasso to seek top spot on Energy and Natural Resources Committee | Forest Service finalizes rule weakening environmental review of its projects | Biden to enlist Agriculture, Transportation agencies in climate fight Barrasso to seek top spot on Energy and Natural Resources Committee MORE (W.Va.) are two red-state Democrats up for reelection this year.

Senate Democratic Whip Dick DurbinDick DurbinDurbin seeks to become top-ranking Democrat on Judiciary panel Feinstein to step down as top Democrat on Judiciary Committee Democrats face increasing pressure to back smaller COVID-19 stimulus 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 SchumerChuck SchumerUS national security policy in the 117th Congress and a new administration Voters say Biden should make coronavirus vaccine a priority: poll New York City subway service could be slashed 40 percent, officials warn 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 ReidBottom line Bottom line Senate roadblocks threaten to box in Biden 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) TesterPresident is wild card as shutdown fears grow Repealing the Affordable Care Act: Too big a price to pay for veterans Democrats vent to Schumer over Senate majority failure 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.”