Are Senate Democrats about to make a strategic error of gigantic proportions yet again? In 2013, you may recall, former Majority Leader Harry ReidHarry Mason ReidTo Build Back Better, we need a tax system where everyone pays their fair share Democrats say Biden must get more involved in budget fight Biden looks to climate to sell economic agenda MORE (D-Nev.) unilaterally decided to lower the threshold of 60 votes to just 51 votes for executive and judicial confirmations, except Supreme Court justices. That set the stage for a Republican counterplay in 2017, when Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellHouse passes standalone bill to provide B for Israel's Iron Dome Pelosi vows to avert government shutdown McConnell calls Trump a 'fading brand' in Woodward-Costa book MORE (R-Ky.) lowered the threshold to 51 votes for all nominations, including Supreme Court justices.
By taking the initial step of lowering the threshold in 2013, Senate Democrats were left with no argument when McConnell turned the play against them in 2017. All they could do was sputter to no effect. We may be witnessing the same phenomenon now. Senate Democrats, playing politics with the Supreme Court nomination, may be setting a precedent they will one day regret if they get back into the Senate majority.
Schumer wants no Democrats meeting with Kavanaugh until Republicans agree to hand over every document sought. That request could include documents created during his tenure in the offices of the Whitewater special counsel, the White House counsel, and the White House staff secretary. There could be more than a million documents. So far only Joe ManchinJoe ManchinManchin fires warning shot on plan to expand Medicare Panic begins to creep into Democratic talks on Biden agenda Enhanced infrastructure plan is the best way to go MORE (D-W.Va.), running for reelection in a state President TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE won by a huge margin, has stiffed the strategy and met with Kavanaugh.
Do Democrats believe they will find anything in those documents they can use to block the confirmation of Kavanaugh? Not really. What is really going on is that Democrats hope to delay the vote past the inauguration of what they hope will be a new Senate led by their party in January. This way they can reject the Supreme Court nomination outright and demand a jurist acceptable to Democrats. In other words, they want the kind of nominee who would have been chosen by Barack ObamaBarack Hussein ObamaTop nuclear policy appointee removed from Pentagon post: report Prosecutors face legal challenges over obstruction charge in Capitol riot cases Biden makes early gains eroding Trump's environmental legacy MORE.
Document production, thus, becomes the only chance for Democrats to defeat Kavanaugh. This is not because of anything they expect or even hope to find in the documents, but because of the sheer volume of paperwork and the time necessary to read through them. Once the documents are produced, they reason, they cannot be expected to vote until they have been given time to read through them properly.
Senate Democrats have tried pointing back to the confirmation process for Justice Elena Kagan, which involved the release of approximately 171,000 pages of documents to the Senate Judiciary Committee from her prior public service in the Obama and Clinton administrations. If it was good enough for Kagan, they argue, it should be good enough for Kavanaugh. But that is not an apples to apples comparison.
The background of Kagan is different from the background of Kavanaugh, and so was the need for document production. Kagan had never been a judge at any level before being nominated to a seat on the Supreme Court. As such, there was no body of published work documenting her legal beliefs and philosophy. In that context, looking at what she had written professionally was a necessary prerequisite to making an informed judgment about her legal philosophy and her suitability.
Kavanaugh, by contrast, has spent a dozen years on the bench, and not just any bench, but the second most powerful in the land. He has written some 300 opinions, and his superior judges on the Supreme Court have chosen to affirm him on more than a dozen occasions. Anyone who wants to learn about his views on the law can find that information easily by reading his published opinions. They need not read a million pages of documents from his professional service before he was a judge.
That flawed argument may not be obvious to Schumer and his fellow Senate Democrats, but it is clear as day to anyone not already invested in defeating the Kavanaugh confirmation. Those are the vast number of swing voters who will determine control in Congress for the next two years. What may be obvious to Democrats is the possibility of following the mistake of setting a precedent that comes back to bite them.
Jenny Beth Martin is president of Tea Party Patriots Citizens Fund.