Senate Democrats should stop playing politics on Kavanaugh

Senate Democrats should stop playing politics on Kavanaugh
© Greg Nash

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 ReidHarry Reid says he won’t make 2020 endorsement until after Nevada caucus Sanders hires veteran progressive operative to manage 2020 bid Constitutional conservatives need to oppose the national emergency 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 McConnellKids confront Feinstein over Green New Deal Trump selects Kelly Craft for United Nations ambassador Union leader says Green New Deal would make infrastructure bill ‘absolutely impossible’ 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.

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Minority Leader Chuck SchumerCharles (Chuck) Ellis SchumerDon’t look for House GOP to defy Trump on border wall GOP Green New Deal stunt is a great deal for Democrats National emergency declaration — a legal fight Trump is likely to win MORE (D-N.Y.) has set the strategy to try to block the confirmation of Judge Brett Kavanaugh to a seat on a Supreme Court by demanding access to thousands of the documents Kavanaugh touched in his previous positions. If Schumer and his fellow Senate Democratic colleagues are not careful, they may follow Reid in setting a precedent that comes back to bite them.

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 ManchinJoseph (Joe) ManchinOvernight Energy: Trump ends talks with California on car emissions | Dems face tough vote on Green New Deal | Climate PAC backing Inslee in possible 2020 run Dems face tough vote on Green New Deal Gabbard cites ‘concerns’ about ‘vagueness’ of Green New Deal MORE (D-W.Va.), running for reelection in a state President TrumpDonald John TrumpAverage tax refunds down double-digits, IRS data shows White House warns Maduro as Venezuela orders partial closure of border with Colombia Trump administration directs 1,000 more troops to Mexican border 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 Obama4 ways Hillary looms over the 2020 race Obama goes viral after sporting black bomber jacket with '44' on sleeve at basketball game Obama attends UNC-Duke basketball game 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.