The Democratic senator in question is Jeff Merkley, whom you’ll be very surprised to learn is considering a presidential run in 2020. No one’s going to top President Avenatti in the Panderlympics but Merkley at least wants to place in the top three.
I’ll defer to legal eagles on the merits of the suit but this strikes me as a classic “political question” which the courts won’t involve themselves in. If the Senate believes that the White House hasn’t produced sufficient documents, it has a remedy at hand: Refuse to confirm Kavanaugh until those documents are turned over.
Why would any court want to saddle itself with the eye-crossing task of figuring out a constitutional standard for document production?
Democratic Senator Merkley is filing a lawsuit over the Kavanaugh nomination and seeking an injunction on a confirmation vote. He argues the White House has violated the separation of powers by obstructing the Senate's investigation (by withholding documents, for example.) pic.twitter.com/THjxNTckzG
— Paul McLeod (@pdmcleod) September 26, 2018
Merkley’s bid for an injunction hinges on the Senate’s constitutional duty to provide advice and consent on nominees and charges that he’s been prevented from fulfilling that due to the withholding of records on Kavanaugh’s past service in the George W. Bush administration…
“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.”
That’s a clown suit, bro. It’s for the Senate itself to decide whether its ability to advise and consent in a fully informed way has been impeded by the White House and, as I said, there’s a remedy available to it if it concludes that it has. Law prof Jonathan Adler thinks Merkley’s complaint is so trivial that it might be sanctionable.
If Merkley’s lucky, though, it might increase his take of the 2020 primary vote from zero percent to one.
This Democratic threat is a bit more serious:
REP. HANK JOHNSON, a Georgia Democrat who sits on the House Judiciary Committee, plans to open an investigation into the background of Brett Kavanaugh if he is confirmed to the Supreme Court, Johnson told The Intercept…
“His background is fair for consideration, both before he is confirmed and, if he should be confirmed, we would be duty-bound to follow-up on any blemishes on his record that were not fully discovered prior to his confirmation. We would owe that to the American people,” said Johnson.
Democrats will have a real dilemma if Kavanaugh gets confirmed and they retake one or both houses of Congress next year. There are good reasons to avoid reopening the Kavanaugh matter, after all. If he ends up on the Court, the cloud over his head might last forever; the one thing that could remove it would be the opposition party investigating him with help from the FBI and then discovering to their chagrin that none of the allegations against him are supported by hard evidence. Since there’s little chance of removing Kavanaugh from the Court absent proof of a smoking gun somewhere, better to let him linger under that cloud. Also, some Dems will demand that they not waste precious resources on revisiting the Kavanaugh allegations so that they can focus on more fruitful subjects instead — Russiagate, Trump’s tax returns, the sexual-assault accusations against Trump himself.
But the longer this drama drags on and the more both sides invest in Kavanaugh’s fate, the less room Pelosi and Schumer will have to refuse to revisit it. If the GOP confirms Kavanaugh without Julie Swetnick ever testifying, liberals will demand that she be allowed to testify next year before a Democratic-run committee. More to the point, Michael Avenatti, a man with political aspirations and a growing following on the left, will demand it. (“We must fight!”) How will Democrats say no? How will other 2020 contenders like Gillibrand and Harris say no if progressives, led by a potential rival in Avenatti, want blood from Kavanaugh? They really might have to hold a hearing next year. And if Swetnick and/or Ford and Ramirez testify effectively, that itself might compel votes on impeachment and removal. Kavanaugh will almost certainly survive but there’s every reason to believe that questions about his conduct with women won’t go away after the confirmation vote. Too many people, starting with Avenatti, have an incentive not to let them.