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Why Democrats are talking more about missing Kavanaugh documents than abortion in the Supreme Court battle

Why Democrats are talking more about missing Kavanaugh documents than abortion in the Supreme Court battle
Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the Senate Judiciary Committee, studies her notes during a committee hearing. (Win McNamee / Getty Images)

Senate Democrats’ strategy for defeating President Trump’s pick for the Supreme Court has so far largely relied on getting the American public to care about a procedural fight over millions of pages of archived documents.

It’s a surprising, somewhat arcane topic to zero in on, particularly given the more high-profile issues many predicted would dominate the fight over Judge Brett Kavanaugh’s nomination, including abortion, the Affordable Care Act, immigration, executive power and whether a president is subject to a subpoena.

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But to the consternation of some Democratic activists, Senate Minority Leader Charles E. Schumer (D-N.Y.) and ranking Judiciary Committee member Dianne Feinstein (D-Calif.) have focused much of their public attention to date on a paperwork battle over how much of Kavanaugh’s extensive, archived White House records will be made available for senators to review.

Democrats want to review millions of pages before voting, including documents from Kavanaugh’s stint as staff secretary in the George W. Bush White House, and have threatened to sue if they don’t get the papers through a Freedom of Information Act request. Republican leaders are moving ahead with a much more limited release, hoping to seat Kavanaugh in time for the court’s opening in October.

Elizabeth Beavers, associate policy director of Indivisible, a liberal anti-Trump group, said Democrats’ focus on the bureaucratic process for releasing documents was unlikely to inspire the kind of public backlash needed to block or slow a nomination that she said Republicans are intent on pushing through.

“Chuck Schumer is bringing a FOIA request to a knife fight,” Beavers said. “Most ordinary constituents are not enraged and spurred to action by process.”

Democrats insist they’ll turn their focus to Kavanaugh’s judicial record closer to his confirmation hearings — slated to begin Sept. 4 — and activists are gearing up for nationwide protests on social issues like abortion as early as this weekend. But with less than 11 days to go, they haven’t pivoted their attention from the document fight.

Feinstein’s social media outreach has largely focused on the documents. Of the 59 tweets she’s sent about Kavanaugh in August, 49 have been about the fight over his White House records.

Senate Democrats, including California’s Kamala Harris, have joined in, using hashtags on Twitter and Facebook like #ReleasetheRecords and #WhataretheyHiding.

Certainly there’s been talk by senators about abortion rights, the Affordable Care Act and whether a president under investigation should even get to pick a justice. That line of argument picked up steam this week with the guilty plea by former Trump attorney Michael Cohen and conviction of his former campaign manager, Paul Manafort.

Senate Majority Whip John Cornyn (R-Texas) said Democrats are grasping at straws. “Why the paper chase?" Cornyn said. "Well, the real answer is that’s all they have left.”

But Feinstein said the document fight is part of the larger battle.

"It may seem trivial to debate how many pages we can or can’t review, or what is public or not public, but withholding even a small number of documents from the Senate or public could prevent key facts from being known," Feinstein said. "This is particularly true because so much is at stake with this nomination … [including issues that] define who we are as a nation and the extent of the freedoms that we all cherish under our Constitution and laws."

Brian Fallon, a former Schumer aide and Hillary Clinton campaign spokesman who now leads liberal leaning judicial advocacy group Demand Justice, said the Democrats’ focus on documents may be a deliberate calculation to emphasize a less controversial issue in order to provide political cover for moderates in both parties who are facing a tough vote on Kavanaugh.

Rather than being forced to base their vote on the fact that Kavanaugh would probably provide the fifth vote needed to limit abortion or rein in environmental regulations, moderate Democrats running in red states now have the opportunity to justify their opposition based on a less divisive issue.

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“If nothing else, these moderates have an ample argument available to them about the Republicans running a sham of a process,” Fallon said.

Making the confirmation fight about abortion could backfire for red-state Democrats in the November election, Northwestern University Institute for Policy Research assistant professor Tabitha Bonilla said.

“It seems like a good way for senators to express opposition to a nominee without having to select a partisan issue where the other parties voters will almost definitely disagree,” Bonilla said.

But Heidi Hess, co-director of the progressive group CREDO Action, questioned whether such a strategy was wise in the long term.

“They are more concerned about losing seats than losing the court,” Hess said. “To us, that’s a leadership failure on Schumer’s part.”

Democratic Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana are all running for reelection in November and face intense pressure in their conservative states to vote for Trump’s nominee. All three voted for Trump’s first high court pick, Neil M. Gorsuch.

Senate Democratic leaders may be making a long-term political gamble that it’s not worth putting those vulnerable colleagues in a tough position over a nomination battle they may lose anyway. Even with a slim 51-seat majority and GOP Sen. John McCain still at home in Arizona battling brain cancer, Republicans can confirm Kavanaugh if every other GOP senator votes yes.

Other progressive groups defended Democrats’ focus on the documents, saying they have little choice but to respond when Republicans effectively break with past practices.

Caroline Fredrickson, president of American Constitution Society, a liberal-leaning group focused on judicial nominees, said Senate Republicans’ refusal to make all of Kavanaugh’s White House records public caught Democrats flatfooted.

“They were prepared to deal with the substantive issues. This is just completely unprecedented,” Fredrickson said. “Democrats are very angry about the abuse of process by the Trump White House and the Republicans by denying them documents.”

After they rejected Democrats’ demands for all of Kavanaugh’s records from his five years in the White House, Republicans initially asked the National Archives to review and release only records from Kavanaugh’s years in the White House legal counsel’s office. But the National Archives said it couldn’t complete even that smaller GOP request, totaling about a million pages, by late October, prompting Republicans to shift strategies.

Instead, for the first time, rather than waiting for the National Archives to vet and release the documents through the customary process, Republicans are getting the papers from Bush’s presidential library by having longtime GOP attorney Bill Burck, once a former Kavanaugh deputy, vet them.

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“This man is hardly a fount of impartiality,” said Schumer. “He’s a partisan.”

If Democratic leaders were hoping the document fight would give vulnerable Democrats a political lifeline, few so far appear to be reaching for it.

Manchin said he’s been satisfied by what he’s had access to. “My staff has gone into great detail. I’ve been satisfied with what they’ve been able to share and show me, and we’ve been able to have shared with us. Everything we’ve asked for we’ve received,” he said.

Heitkamp’s and Donnelly’s offices referred The Times to statements they have previously made that did not reference the documents.

And the Republican senators most likely to flip appear satisfied with the available records as well.

Sen. Susan Collins (R-Maine) told reporters in late July that the GOP position on documents was “eminently reasonable.”

“I know that Democrats basically said [that] anything he has ever touched ... needs to be produced. I think there comes a point where the request is no longer reasonable,” Sen. Lisa Murkowski (R-Alaska) told the Huffington Post.

Even so there are some signs that Democrats’ focus on the documents is resonating with voters and creating doubts about whether Kavanaugh is being fully vetted, San Jose State University political science professor Melinda Jackson said. Multiple polls have shown Americans are split on Kavanaugh’s nomination and are paying unusually close attention to how he could potentially change the leaning of the Supreme Court, Jackson said.

A poll released Tuesday by Public Policy Polling that was conducted on behalf of the healthcare advocacy group Protect Our Care found that 62% of Maine voters want senators to fully review Kavanaugh’s White House and judicial record before voting, and 56% said Collins shouldn’t vote to confirm Kavanaugh without a full review.

“The American public understands that hiding something is bad," said Sen. Richard Blumenthal (D-Conn.). “There’s something about concealing stuff that raises suspicions in the minds of most Americans.”

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