Democrats have a point on Brett Kavanaugh documents, but GOP should stick to confirmation timeline

(Editor's Note: This piece first appeared in the Washington Examiner on September 4, 2018.)

Donald Trump's victory in the 2016 presidential election was a striking reminder that anything can happen in politics. And it suggests that the Democrats’ efforts to block Brett Kavanaugh are not entirely hopeless, even though their success looks unlikely at present. Despite appearances, Kavanaugh’s fate is not preordained. Whether or not he clears the Senate depends ultimately on the context in which members and the constituents they represent evaluate his nomination. 

Contrary to popular punditry, Republicans are not off to a great start. Instead of discussing the proper role of a Supreme Court justice or emphasizing Kavanaugh’s ability to perform it, Republicans have spent the past eight weeks reinforcing the Democrats' narrative. Specifically, the hardline position they have taken in the dispute over which of his documents senators should have access to has helped Democrats create a more favorable environment in which to prevent his confirmation. 

Rather than running that risk, Republicans should stop treating Kavanaugh like a client whom they are protecting from opposing counsel in a hostile deposition. They should instead acknowledge that he has been nominated for a lifetime position on the nation’s highest court and vet him accordingly.

From the moment Trump first nominated Kavanaugh, Democrats and Republicans have sparred over the appropriate scope of the documents that the Senate should request ahead of his confirmation hearings. Partisan bickering was on full display as the Senate’s Judiciary Committee began its confirmation hearing. At issue are potentially millions of pages of records from Kavanaugh's time as the White House staff secretary during the administration of George W. Bush. Democrats contend that those documents are needed to fully assess Kavanaugh’s judicial philosophy and fitness for office. But Republicans have rejected their requests, maintaining that the staff secretary is a clerical position. They argue that any documents passing through the office are unrelated to Kavanaugh and thus irrelevant to his vetting process. 

The challenge facing Democrats in a post-filibuster Senate is to convince their colleagues like Sen. Joe Manchin, D-W.Va., and Heidi Heitkamp, D-N.D., to stick with them while simultaneously pushing Republicans like Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, to break ranks with their colleagues and join them in opposition. Walking that tightrope successfully may be hard. But it isn’t impossible. This is because senators’ choices are never independent of the process by which they are made. In other words, the document dispute matters, even if only at the margins. However justified Republicans may feel, their refusal to accommodate the Democrats’ request for additional documents reinforces an unhelpful narrative in the Kavanaugh debate. In doing so, Republicans are helping to create the conditions necessary for undecided members to oppose Kavanaugh in the end. 

Senate Minority Leader Chuck Schumer, D-N.Y., criticized the unusual decision of Republicans on the Judiciary Committee to request a smaller subset of Kavanaugh’s documents without the support of their Democratic colleagues on the panel. “It is such a break from precedent that you have to wonder: What are the Republicans hiding about Kavanaugh’s record?” The top Democrat on the Judiciary Committee, Dianne Feinstein, D-Calif., rejected claims that she and her colleagues were on a fishing expedition. She instead maintained that Democrats only wanted relevant documents, arguing that they are needed to illuminate Kavanaugh’s “views on and involvement in important issues like torture, the Enron task force, healthcare and presidential signing statements.” As the confirmation hearing opened, Sen. Patrick Leahy, D-Vt., asked rhetorically, “What are we trying to hide? Why are we rushing?” 

In response to such claims, Republicans have doubled down on their original insistence that the Democrats’ requests are inappropriate. Majority Leader Mitch McConnell, R-Ky., recently pushed back, suggesting that, “the complaint about documents is not about assessing his record in an open-minded, fair and dispassionate way. It’s all about the desire to obstruct and delay.” And Judiciary Chairman Chuck Grassley, R-Iowa, criticized Schumer for “his unprecedented partisan interference with the business of” his committee. Sen. John Cornyn, R-Texas, who serves on the Judiciary Committee, characterized the behavior of his Democratic colleagues on the panel as an example of mob rule.” 

While McConnell and Grassley may have been successful thus far in persuading Collins and Murkowski that the Democrats’ request is inappropriate, the debate isn’t yet over. Amid their bravado and accusations of hypocrisy, Republicans have overlooked the way in which their position has reinforced the Democrats’ characterization of the Kavanaugh debate thus far. For two months, the document dispute has dominated the news cycle instead of Kavanaugh’s judicial philosophy or fitness for office. This suggests that Democrats have potentially shifted the debate in ways that could make success more likely when Kavanaugh’s fate really will be decided. If so, Republican stonewalling may provide just enough of a reason for undecided members to oppose Kavanaugh, even if only temporarily until they receive the information needed to fully vet him. 

Finally, there are also important reasons for Republicans to drop their opposition to Democrats’ demands even if Kavanaugh’s confirmation was assured. The current narrative is an unnecessary distraction and makes it harder to properly vet the nominee. It also risks further politicizing the Supreme Court if Kavanaugh is ultimately confirmed. And most importantly, the Republicans’ hardline position isn’t warranted. Rather than denounce their Democratic colleagues for requesting more information, they should instead pledge to do everything in their power to get them any documents they need while simultaneously reiterating the timeline for Kavanaugh’s confirmation hearings and floor debate. 

What’s the worst that could happen? Admittedly, the additional documents could reveal troublesome information that jeopardizes Kavanaugh’s confirmation. But that is why the Senate has a role in the confirmation process in the first place.