If you can’t beat ‘em, sue ‘em.
That appears to be Sen. Chuck Schumer and the Senate Democratic leadership’s strategy on the Kavanaugh nomination. And on at least one point, they appear to absolutely correct:
They can’t beat ‘em.
Republican Senators show no sign of abandoning Judge Brett Kavanaugh. As long as the 51 GOP senators support him (assuming Sen. John McCain is healthy enough to vote), Kavanaugh is a lock.
And thus far, public support appears to be making their job easier. A new Quinnipiac poll found that, after several million dollars in negative ads funded by the liberal dark-money organization Demand Justice and generally unflattering media coverage, a plurality of voters support his confirmation, 44 to 39 percent. That’s not significantly different from Quinnipiac’s poll released July 25th.
A new poll in the purple state of New Hampshire, often a bellwether of national politics that Hillary Clinton carried in 2016, found a similar level of support, 43-39 percent.
With a clearly qualified candidate, public polls generally favoring support, and at last three Senate Democrats representing red states where Kavanaugh’s confirmation is strongly favored—Indiana, North Dakota and West Virginia—the political wind is strongly at the backs of Sen. Mitch McConnell and the GOP.
Sen. Chuck Schumer knows it. In July ,the Democratic leader in the Senate declared to the Democratic base: “I will oppose Judge Kavanaugh’s nomination with everything I have. The stakes are simply too high for anything less.”
Schumer isn’t alone. About a half-dozen Democrats have met with Kavanaugh or are scheduled to meet this week, including Sens. Dianne Feinstein and Claire McCaskill.
The media appear to have largely accepted the inevitable as well. The “scandal” stories surrounding Kavanaugh thus far have focused on such marginal issues as his credit-card purchases of tickets to see the Washington Nationals play baseball, and memos from the Monica Lewinsky investigation urging uncomfortably-blunt questioning of then-President Bill Clinton about his behavior in the Oval Office.
Democrats are losing the paid-media battle as well. Politico reports that Kavanaugh supporters have run more than $7.5 million in TV ads, vs about $1.3 million by Kavanaugh opponents.
As the Washington Post recently acknowledged, “barring a major revelation, the Senate is poised to install the 53-year-old Kavanaugh on the high court.”
The hearings are going to be held September 4-7. Democrats don’t have the votes to stop him. The handwriting is on the wall. But nobody in the Democratic leadership wants to read it to the progressive base.
“The only good reason for a Democratic Senator to meet with Brett Kavanaugh is to tell him directly to his face that they will oppose his confirmation,” says Heidi Hess of the leftwing group CREDO Action.
“It’s really a test for Schumer,” says Elizabeth Beavers of the anti-Trump organization Indivisible. “Is he going to be the minority leader who lost Roe?”
What the progressive base wants is “more fury” from Senate Democrats, says Brian Fallon, a former Schumer aide now at Demand Justice. But other than bringing in actor Ben Stiller to reprise his role as “Mr. Furious” from the movie Mystery Men, what can they do?
Senate Democrats are threatening to sue the National Archives for documents related to Kavanaugh’s time in the George W. Bush White House serving as staff secretary. More than 230,000 documents have been released to the Senate Judiciary Committee by the George W. Bush White House archives, but Democrats want more. They are even demanding documents that merely contain Kavanaugh’s name, whether he wrote them–or even saw them.
That would involve more than 1 million documents.
The argument that Democrats need more information about Judge Kavanaugh is considered nonsense by his advocates, who point out how extensive Kavanaugh’s record was before a single document was released.
“Judge Kavanaugh has served for twelve years on the D.C. Circuit, widely regarded as the most important federal appellate court in the country,” says Carrie Severino of the conservative Judicial Crisis Network. “In that time he has authored 307 opinions, all available in the public domain, and signed onto hundreds more.
“His record has been supplemented by the most extensive bipartisan questionnaire the Senate Judiciary Committee has ever received, his answers running more than 100 pages themselves and with more than 17,000 pages of appendices making an exhaustive review of his previous legal work, publications, and public speaking.”
Throw in the hundreds of thousands of documents being reviewed and forwarded to the Senate from the George W. Bush archives, and that’s quite a public record. More to the point, it’s apparently enough of a record for the public.
Which is what the Democrats’ threatened lawsuit is about: Changing that public perception and, hopefully, changing one or two Republican votes. Sen. Schumer has said so himself.
When asked to respond to Republicans who claim providing more documents is a waste of time because Democrats like Schumer have already made up their minds, Schumer replied:
“If those documents come out, it [maybe] will persuade others to vote against him. Including some on the Republican side.” And that’s the only reason for the Democrat-demanded document dump.
Heading to court hoping to find some political silver bullet to stop the Kavanaugh nomination is the Democratic equivalent of a “Hail Mary” pass. It’s an indication that Sen. Schumer’s true strategy is to let his party’s base see the Senate put up a good fight—but not so good that they lose seats in Trump-friendly North Dakota, Indiana, or Missouri.
In other words, all the things you do when you know you can’t win.