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Democrats are probably fighting a losing battle over Kavanaugh’s White House documents

Senate Minority Leader Charles E. Schumer told reporters on July 31 that he called the national archivist to produce documents on Brett Kavanaugh. (Video: The Washington Post)

Everything about this upcoming Supreme Court nomination is hyper-politicized. It's happening in an election year, support for Brett M. Kavanaugh is falling largely along party lines, and it could firm up the court's 5-4 conservative majority in a way that has liberals worried they'll lose future fights over health care and abortion.

Viewed that way, it would be natural to see Senate Democrats' long-shot effort to extract documents from all of Kavanaugh's time as a top aide for George W. Bush as a politically driven effort to slow down his confirmation or a frantic reach for something — anything — that could throw a wrench in it.

They're asking for documents from Kavanaugh's time as Bush's staff secretary, a high-level position that made this Supreme Court nominee a human email inbox for the president, putting him in possession of nearly every document that reached the Oval Office from 2003-2006.

Republicans, who are in control of the process of requesting Kavanaugh's documents from the National Archives, have declined to delve that deep. They're looking at documents from Kavanaugh's time in the legal office of the White House from 2001-2003 but not his time as staff secretary.

Now Senate Democrats are going so far as to accuse them of hiding something in Kavanaugh's past.

“The Republican majority has cast aside Democratic wishes for openness and transparency and has made a partisan request for only a small subset of Judge Kavanaugh’s records,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said Tuesday.

Republicans say they're pulling plenty from Kavanaugh's time in the White House legal office. They argue that those documents are more appropriate for gauging his ability to be a judge.

“Over the last several days, the minority leader has again continued his unprecedented partisan interference with the business of the Senate Judiciary Committee,” the senator in charge of orchestrating Kavanaugh's confirmation, Chairman Charles E. Grassley (R-Iowa), said Tuesday.

There's a case to be made that Democrats have every right to want to see more paperwork, said Josh Chafetz, a legal expert at Cornell Law. There's no precedent for reviewing a nominee with such extensive White House experience and, thus, such an extensive political paper trail. And because Kavanaugh's tenure at the White House was fairly recent, there's a digital trail for much of his work, meaning a huge volume of emails that the National Archive could theoretically pull.

“There are no rules about any of this,” Chafetz said. It's possible that delving deeper into Kavanaugh's political work could give senators insight on his ideology and temperament before he was a judge, when he was steps away from the president on a daily basis. “I would think it would be tough to draw a bright line that says it is categorically out of bounds,” Chafetz said of a nominee's previous political work.

At least one lawmaker who has also held the staff secretary job, Rep. Sean Maloney (D-N.Y.), who served in the Clinton administration, thinks Senate Democrats have a legitimate claim to seeing these documents.

Setting aside all of their obvious political motivations, Senate Democrats may have a legitimate case that the more documents, the better. They just probably won't get to see what they want, for the same reason that there's not much they can do to stop Kavanaugh from sitting on the Supreme Court: Republicans are in the majority and get to control the process.

Constitutionally, the Senate can dig into a nominee's background as little or as much as they want, Chafetz said. As we learned in 2016, when Justice Antonin Scalia suddenly died in a presidential election year, the Senate can take as little or as long as it wants to screen a president's nominee — or just not consider that person at all (as senators did with President Barack Obama's pick for Scalia's seat, Merrick Garland).

This time, Republicans are in a rush to confirm the seat being vacated by retiring Justice Anthony M. Kennedy. They'd like to get Kavanaugh, a former clerk to Kennedy, on the Supreme Court before the November midterm elections. Next year, it's possible that Senate Democrats will have control of the majority. Kavanaugh's lengthy paper trail in politics is one reason Senate Majority Leader Mitch McConnell (R-Ky.) urged President Trump to pick someone else. McConnell worried about the prospect of a lengthy fight with Democrats over Kavanaugh's political record.

Except, the dam may have broken this week in Republicans' favor. The three Senate Republicans who could thwart Kavanaugh's nomination said they'll support him or that they think the documents their party's leaders are requesting are sufficient.

“It seems eminently reasonable,” Sen. Susan Collins (R-Maine) said Tuesday. “It does not make sense for documents that Judge Kavanaugh was only involved in essentially organizing for the president’s review and did not play a role in creating would be subject to this document request.”

With that, Democrats probably lost their only bit of leverage in this document fight. If they don't have Senate Republicans' swingiest members on their side, they certainly don't have the majority  — no matter how legitimate their request might be.