Brett Kavanaugh testifies during his Senate Judiciary Committee confirmation hearing on September 6, 2018.(Reuters / Alex Wroblewski)
Senate majority leader Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley are desperately determined to confirm Judge Brett Kavanaugh as the conservative judicial activist who will tip the balance of the US Supreme Court in favor of their partisan political program and the economic- and social-policy agendas of their campaign contributors.
The Republican leaders of the Senate propose to “plow right through” a biased final hearing and hastily-scheduled votes to confirm Kavanaugh.
Their lack of concern for maintaining even the slightest standard of senatorial oversight has rendered the process so dishonest, so debased, and so dysfunctional that all of the Democratic members of the Judiciary Committee on Wednesday called for President Trump to “immediately direct an FBI investigation or withdraw this nomination.”
The Democrats made that call after a third woman came forward with allegations of sexual assaults by Kavanaugh. “The standard of character and fitness for a position on the nation’s highest court must be higher than this. Judge Kavanaugh has staunchly declared his respect for women and issued blanket denials of any possible misconduct, but those declarations are in serious doubt,” wrote senators Dianne Feinstein of California, Patrick Leahy of Vermont, Dick Durbin of Illinois, Sheldon Whitehouse of Rhode Island, Amy Klobuchar of Minnesota, Chris Coons of Delaware, Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii, Cory Booker of New Jersey, and Kamala Harris of California.
Senate minority leader Chuck Schumer (D-NY) has asked his Republican colleagues to “immediately suspend the proceedings related to” the judge’s nomination.
McConnell and Grassley showed no inclination to respect these necessary and reasonable requests from their colleagues. So Senator Jeff Merkley (D-OR) took the next necessary and reasonable step.
On Wednesday, Merkley filed a lawsuit arguing that the withholding of information regarding Kavanaugh’s background by the Trump administration has made it impossible for senators to provide “advice and consent” on the president’s nominee for the Supreme Court—as is explicitly required by the US Constitution. Responding to the administration’s affront to the system of checks and balances, Merkley has asked the United States District Court for the District of Columbia to issue an injunction that would stop the confirmation process until Kavanaugh’s full record can be fully and appropriately scrutinized by senators and the American people.
Merkley’s lawsuit points to “Three Acts of Direct Interference” by the president and Senate Republicans, arguing that
1. The Defendants conspired to conceal from the Senate and public all of the documents from Kavanaugh’s three most formative professional years, as Staff Secretary in the George W. Bush White House. 2. The Defendants conspired to conceal 100,000 documents from Kavanaugh’s time of service as a lawyer in the White House Counsel’s Office under President George W. Bush. The Defendants empowered Mr. William Burck, a partisan lawyer with profound conflicts of interest, to utilize executive privilege on behalf of President Trump to block Senate access to the relevant documents. 3. The Defendants conspired to further limit access to documents by utilizing the services of William Burck to label 141,000 pages “Committee Confidential,” limiting the ability of Senators to speak about them and to communicate with experts and members of the public about the contents.
“The events of the past ten days have only underscored how critical it is that the Senate conduct a careful and comprehensive review of a nominee before giving its consent,” says Merkley. “But this President has gone to lengths never seen before to make sure we can’t do that job. The unprecedented obstruction of the Senate’s advice and consent obligation is an assault on the separation of powers and a violation of the Constitution. The president and Mitch McConnell want to ram through this nomination come hell or high water, without real advice or informed consent by the Senate, but that’s just not how our Constitution works.”
As a senator who is charged by the Constitution with providing advice and consent regarding nominees for the Supreme Court, Merkley has a right and a responsibility to sue.
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This lawsuit is about more than the concerns of one senator, however. It exposes and challenges the charade that is unfolding since Trump nominated Kavanaugh—and the threat that wrongdoing by the president and his Senate allies poses to the system of checks and balances.
As Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, says: “We are witnessing a U.S. Supreme Court nomination process that, from its onset, is an executive branch power grab giving the President unchecked authority over choosing this important lifetime appointment without a vigorous review of the nominee’s records. At every turn, this process has been one shrouded in secrecy and is discordant with the process as laid out in the Constitution.”
Clarke, whose group has launched a “Release the Records” campaign, is making an argument that goes beyond ideology and partisanship.
“Americans deserve a Justice whose lifetime appointment is not tainted by political gamesmanship and whose appointment comes after full release and examination of his records,” argues Clark. “[Chairman Grassley’s] torturous logic in continuing the nomination process without the full record of the nominee is an affront to our constitution. We must protect and defend the ‘Advice and Consent’ role of the Senate, an essential and necessary check on Presidential power. Through obstruction, and concealment of tens of thousands of relevant records, the President and Senate leadership are preventing Senator Merkley and his Senate colleagues from exercising their constitutional obligation to provide advice and consent on the fitness of the nominee.”
John NicholsTwitterJohn Nichols is a national affairs correspondent for The Nation. He has written, cowritten, or edited over a dozen books on topics ranging from histories of American socialism and the Democratic Party to analyses of US and global media systems. His latest, cowritten with Senator Bernie Sanders, is the New York Times bestseller It's OK to Be Angry About Capitalism.