Capitol Alert

‘Shut down the Senate!’ Supreme Court confirmation roils Feinstein race.

Get to know Trump’s Supreme Court nominee Brett Kavanaugh

President Donald Trump nominated Judge Brett Kavanaugh to replace Supreme Court Justice Anthony Kennedy on Monday night. Born in Washington, D.C., Kavanaugh has served as a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006.
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President Donald Trump nominated Judge Brett Kavanaugh to replace Supreme Court Justice Anthony Kennedy on Monday night. Born in Washington, D.C., Kavanaugh has served as a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006.

California Sen. Dianne Feinstein is approaching the confirmation process for Supreme Court nominee Brett Kavanaugh all wrong, according to her opponent in the state’s Democrat-on-Democrat Senate race.

Feinstein is “playing polite, country-club politics,” as she pursues records from Kavanaugh’s time in the George W. Bush White House, state Sen. Kevin de León complained in a recent e-mail to supporters. And she and other Senate Democrats aren’t leveraging all the procedural tools they have to stall Kavanaugh’s confirmation. As de León told California Democratic activists in July, “We need to shut the Senate down!”

The criticism is part of de León’s effort to take on Feinstein from the left, arguing she is too cautious and centrist for California. Despite winning the endorsement of state Democrats in an executive committee vote in July, the former state Senate president has struggled to gain traction with regular voters. In a Public Policy Institute of California poll conducted last month, Feinstein held a nearly two-to-one lead . The two Democrats are facing off in the general election after finishing first and second in California’s “top-two” primary system in June.

While Feinstein has taken heat from liberal groups in the past, she has drawn support for her role in Kavanaugh’s confirmation fight. Several said her focus on obtaining access to Bush-era documents is appropriate, given her position as the senior Democrat on the Senate Judiciary Committee. That committee is tasked with reviewing Kavanaugh’s record and questioning the nominee during a public hearing, which has been scheduled for Sept. 4.

The minority party could refuse to support moving forward with upcoming legislation, including a spending bill needed to keep the government open past Sept. 30, unless Republicans push off Kavanaugh’s hearing, George Washington University Professor Sarah Binder said. That would cause the government to shut down, however. And it could end up backfiring on Democrats, said Binder, an expert on Congress and legislative politics.

A number of Democrats in the chamber are facing tough reelection battles in Republican-leaning states like Indiana, West Virginia and North Dakota this fall, she pointed out. They want to be home campaigning as much as possible, not staying in Washington in October battling over a Supreme Court nominee.

Moderate voters, meanwhile, may not take kindly to a Democrat-caused shut down in the fight over Kavanaugh’s nomination, risking red-state Democrats’ reelection chances. “The danger is you win the battle against Kavanaugh,” by delaying his confirmation, “but then you lose the broader war, because you’re less likely to win control of the Senate,” Binder explained.

De León, however, told The Sacramento Bee that Senate Democrats “have no other choice, because these are lifetime appointments with life-altering consequences.” In particular, liberal activists fear Kavanaugh could shift the balance of power on the court against legal abortion and Obamacare regulations, among other policies.

“They need to use every parliamentary procedure imaginable to slow down the Senate and push this vote as far as they can in the future,” he said.

De León said Feinstein is to blame, moreover, for the fact that Kavanaugh is even being considered for the Supreme Court. She “opened the door,” he said, noting that Feinstein was one of 12 Democratic senators who voted to allow the Senate to debate Kavanaugh’s 2006 nomination to the Washington, D.C. Court of Appeals, a traditional stepping stone to the Supreme Court. Another Democrat who did so: Then-Illinois Sen. Barack Obama.

Thirty Democrats, however, voted against allowing debate to go forward, including fellow California Sen. Barbara Boxer and the current Senate Minority Leader, Chuck Schumer.

The vote effectively prevented Democrats from filibustering Kavanaugh’s confirmation to the circuit court. The Senate later approved his nomination by a narrower margin. Feinstein voted “no” on Kavanaugh’s confirmation.

The Senate has since scrapped the filibuster for judicial nominations, giving Democrats very few tools to block Kavanaugh’s confirmation on their own. They will need at least one of the 51 Republicans in the chamber to vote “no,” as well as all 49 Democrats. De León suggests Feinstein is wasting her time demanding records from Kavanaugh’s past from the National Archives and Bush attorneys, and is calling on the senator to focus instead on swaying her colleagues to oppose the nomination.

“The idea that there will be a smoking gun in the documents is the Hail Mary pass,” he said. “While I don’t discount it, persuading your Republican and Democratic colleagues is a better use of your time.”

But one liberal advocacy group that has been critical of Feinstein in the past said her efforts to obtain Kavanaugh’s White House documents makes sense. CREDO Action called on Minority Leader Schumer to replace Feinstein as the leading Democrat on the Senate Judiciary Committee last year, over what they said was “an unwillingness to offer meaningful opposition to Trump’s judicial nominees.”

When it comes to Kavanaugh, CREDO Action Co-Director Josh Nelson said that Feinstein “should work to secure the opposition of her colleagues on the Judiciary Committee and in the broader caucus,” but “the responsibility for keeping the Democratic Caucus unified in opposition to his confirmation ultimately rests with Sen. Schumer and the wavering members of the Democratic caucus themselves.”

Nelson added that “insisting on the release of the Bush-era Kavanaugh documents is also a perfectly reasonable approach.”

Feinstein and other Democrats pushing for those documents want to know if Kavanaugh weighed in on policies the Bush administration carried out. That includes decisions allowing warrantless wiretapping and CIA torture programs. Kavanaugh was also the president’s staff secretary at the time the administration decided to block federal funding for international groups that provide or advise about abortion, sometimes called the “global gag rule.”

“Knowing how he interacted with those pieces of policy is really critical to considering his nomination,” said Beth Lynk, Associate Director of Federal Communications at Planned Parenthood Action Fund, which has endorsed Feinstein’s reelection campaign.

That information could, in theory, help convince two Republican senators who support abortion rights — Susan Collins of Maine and Lisa Murkowski of Alaska — to oppose Kavanaugh, thereby blocking his nomination.

Feinstein spokeswoman Ashley Schapitl said the fact that it will require Republican votes to deny Kavanaugh’s confirmation is precisely “why it’s so important that all information about his record be made public.”

The records “from his time as White House staff secretary would show whether he was involved in torture, warrantless wiretapping and Enron’s defrauding of Californians, to name just a few controversial issues. They would also show whether he lied to Congress in 2006,” Schapitl said. “To suggest it’s not important for all senators and the American public to know whether the Supreme Court nominee lied under oath or was involved in torture is absurd and reflects a complete lack of understanding of this process.”

Binder said that “what Feinstein’s doing makes a lot of sense,” as part of a broader effort to convince senators to vote “no.” But she cautioned that liberals shouldn’t get their hopes up. It remains “an uphill battle for Democrats to block a Republican Senate from confirming Kavanaugh,” she said.

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