Oregon Senator Merkley Throws Hail Mary to Stop Kavanaugh Confirmation

(Bloomberg) -- Oregon Democrat Jeff Merkley is asking a federal court to block his U.S. Senate colleagues from voting on Supreme Court nominee Brett Kavanaugh’s confirmation until the Trump administration turns over information about the judge’s prior government work.

The U.S. Senate Judiciary Committee has tentatively scheduled its vote on Kavanaugh’s candidacy for the morning of Sept. 28. Between now and then, they’ll hear testimony from the nominee, who has served on the U.S. Court of Appeals in Washington for more than a decade, and from Christine Blasey Ford, a California college professor accusing him of assaulting her at a party when they were teenagers. The judge has denied her allegations.

Merkley’s complaint, filed Wednesday in Washington, asserts he and his peers can’t properly fulfill their constitutional duty to advise the president and consent to his Supreme Court selection without the sought-after information.

“President Trump and agents of the executive branch interfered in the ability of Senator Merkley and the Senate to provide advice and consent by, inter alia, imposing a broad and unprecedented blockade on the Senate’s and public’s access to reams of key documents that directly bear on Judge Kavanaugh’s views, experience, and character,” according to the complaint.

The Department of Justice declined to comment. A representative of the Judiciary Committee’s Republican majority didn’t respond to a request for comment.

‘Tools Without Courts’

Legal scholars say the effort’s unlikely to succeed, primarily because the Senate can simply register its displeasure over the withholding of documents by voting against the administration’s nominee.

Cornell University law professor Michael Dorf said this scenario doesn’t work as well when the party that controls Congress is the same party that controls the White House, but would still be the way the issue should be sorted out.

“They have the tools without the courts to address that,” he said.

Earlier this month, six Democratic members of the Senate Judiciary Committee sued the National Archives and Records Administration, the Central Intelligence Agency and the Justice Department, also seeking to compel the turnover of Kavanaugh papers. Merkley is not a committee member.

Before becoming a judge in 2006, the nominee had served in the George W. Bush administration as a presidential secretary and senior associate counsel. He also clerked for since-retired Supreme Court Justice Anthony Kennedy whose seat he would occupy, should his nomination clear the Judiciary Committee and then be ratified by the full Senate.

While houses of Congress have sued for information from the White House before, it is highly unlikely that a single senator would have the standing to sue for the documents, according to Saikrishna Prakash, who teaches constitutional law at the University of Virginia.

“This is either a publicity stunt or a desperate ‘Hail Mary’ attempt to get the courts involved,” Prakash said. But with a segment of the judiciary committee clearly troubled by Trump, “claims that were ordinarily implausible become plausible.”

The case is Merkley v. Trump, 18-cv-2226, U.S. District Court, District of Columbia (Washington).

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