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The battle to confirm Kavanaugh heats up with document fight

The political battle, for now, is focused on a mountain of documents — specifically, a set of papers from Kavanaugh's tenure as staff secretary to President George W. Bush.
Image: Senate Republicans speak on Kavanaugh
Republicans from the Senate Judiciary Committee, including Chairman Chuck Grassley, center, stand before empty boxes meant to represent more than one million pages of documents on Supreme Court nominee Brett Kavanaugh.Jim Lo Scalzo / EPA

WASHINGTON — As they prepare for a fall showdown over Supreme Court nominee Brett Kavanaugh, Republicans and Democrats are working hard to extract maximum political benefit while the potential timing of the vote inches closer to the midterm elections.

For Democrats, the confirmation of Kavanaugh would cement the makeup of the court for a generation, and their base wants a fight. But the political reality, which includes the re-election of red-state Democrats in November, makes it an extremely difficult fight to win.

"Some pundits are saying that it's not worth fighting a Supreme Court nominee," Sen. Kamala Harris, D-Calif., said at a progressive Netroots Nation convention Saturday. "Is it worth the fight? Damn right it's worth the fight."

Meanwhile, Republicans are carefully calculating the timing of the Kavanagh vote to occur at a point with the highest political impact, just before the fall elections, to pressure vulnerable Democrats to vote for Kavanaugh and to remind their own GOP voters of the importance of a Republican Senate.

The political battle, for now, is focused on a mountain of documents — specifically, a set of papers from Kavanaugh's tenure as staff secretary to President George W. Bush.

In what Democrats complain is an unprecedented move, the chairman of the Senate Judiciary Committee, Sen. Chuck Grassley, R-Iowa, last week sent a letter, without the support of the top Democrat on the committee, to the National Archives, asking for documents from the five years Kavanaugh worked in the Bush White House — with the exception of his three years as the president's staff secretary.

Those missing three years of paperwork have sparked an uproar and Democrats are demanding their release. Republicans say that they are irrelevant, that the staff secretary is simply a paper pusher for the president and that the documents have no value in determining the judge's opinions.

Democrats say the materials are critical to determining who Kavanaugh is and what he believes.

"Unequivocally, this process is the most political and most dangerous that I’ve seen," said Kristine Lucius, vice president of the Leadership Conference, a civil and human rights group. Lucius has worked for Judiciary Committee Democrats for 14 years and has overseen a handful of Supreme Court confirmations. "What (Republicans) are assigned to do is ram this through with as little transparency as possible."

At a news conference on Thursday, with piles of boxes stacked behind them to represent the amount of documents Grassley has requested, Republican senators said Democrats are being “unreasonable” and only attempting to delay Kavanaugh's inevitable confirmation.

“I hope they decide to put away their election-season talking points and we get a qualified person on the Supreme Court,” Grassley said.

Sen. Orrin Hatch, R-Utah, said: “We can’t keep going down this partisan, picky, stupid, dumbass role that has happened around here for so long. I’m sick and tired of it to be honest with you. I’m tired of the partisanship and frankly we didn’t treat their candidates for these positions the way they are treating ours."

Democrats say their demands are in line with what should be expected for a nominee facing a lifetime appointment. They say that as staff secretary, Kavanaugh could have had input on a range of issues such as the Matthew Shepard hate crimes act and Bush’s decision on harsh interrogation and on wiretapping American citizens in a post-9/11 era.

Kavanaugh was asked about some of those issues during his 2006 confirmation as a federal judge, and Democrats wonder if documents from his time as staff secretary would contradict answers he gave then.

Senate Minority Leader Chuck Schumer, D-N.Y., insisted on the Senate floor that Democrats' request for documents “is not a fishing expedition.”

“This is not an attempt to run out the clock,” Schumer said. “Democrats simply want Judge Kavanaugh’s record to be made available to the Senate, and to the public to judge for themselves whether President Trump’s nominee is the right choice for our country.”

But Carrie Severino, chief counsel and policy director at the conservative Judicial Crisis Network, said that Democrats were find "some needle in a haystack thing they can criticize or re-litigate the Bush years because there's nothing they can point to in Kavanaugh’s own record that is anything other than a balanced, evenhanded and brilliant judge."

A development late last week emphasized the politicization of the process. The National Archives said that it would be unable to release the mountain of documents Grassley requested, which is far less than what Democrats would like to see, by Aug. 15, the date sought by Grassley. The National Archives said it would take until the end of October to release the documents, a timeline that would interfere with the GOP strategy of a quick nomination process to be completed ahead of the midterms.

If the Republicans wait to hold a hearing until after all of the documents requested are released, there is no way the Senate could hold a hearing and vote on Kavanaugh before Election Day.

But Senate Republicans vowed to move forward, despite the delay in documents. They point to the million pages of documents that have already been released from Kavanaugh’s time as a judge and from the White House counsel’s office as reason to move forward with a hearing in September.

An aide to Grassley said the senator fully intends to hold a hearing next month, adding that "in the end, the committee will have reviewed significantly more records than ever before for a Supreme Court nominee."

Democrats complain that the documents that are released are at the will of a partisan attorney hired by the George W. Bush presidential library, William Burck. And they note that Burck is also representing former Trump adviser Steve Bannon, Trump White House counsel Don McGahn and former chief of staff Reince Priebus in Robert Mueller's special counsel probe.

“If Republicans don’t want to review Brett Kavanaugh’s record, they don’t have to," Sen. Dianne Feinstein, D-Calif., the ranking member on the Judiciary Committee, said. "But they shouldn’t deny the public and Democrats who want to fulfill their constitutional responsibility the opportunity to fully vet this nominee and better understand his views.”

While 46 Republican senators quickly scheduled meetings with Kavanaugh after his nomination, just one Democrat, Sen. Joe Manchin of West Virginia, had done so.

Democrats on Friday decided to end their boycott, announcing that Schumer and Feinstein would meet with Kavanaugh expressly "to demand the documents from him directly."