Wednesday, September 26, 2018

Senator Merkley Sues to Halt Kavanaugh Confirmation Process

Senator Jeff Merkley today sued President Trump, Senate colleagues, and others in federal court (D.D.C.) to halt the confirmation process of Judge Brett Kavanaugh. Senator Merkley argues that the defendants' actions violate the separation of powers and the Senate's constitutional role in providing advice and consent on Judge Kavanaugh's nomination to the Supreme Court.

The lawsuit relates to the defendants' failure to produce documents, not the more recent sexual assault and misconduct allegations against Judge Kavanaugh. The government will surely file a motion to dismiss based on the political question doctrine (itself a separation-of-powers matter), among others. The outcome of the case (and the confirmation process more generally) will set the standards for document release and Senate advice-and-consent for future judicial nominations, by Republicans and Democrats alike.

Here's the gist:

This case arises from the direct and substantial interference by President Trump and other agents of the executive branch in the ability of the Senate to examine the record and evaluate the fitness of Judge Brett Kavanaugh, the President's nominee for a lifetime appointment as an Associate Justice of the Supreme Court of the United States. 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. This improper process regarding the production of relevant documents prevents Senator Merkley and his colleagues from properly exercising their constitutional obligation to provide advice and consent on the qualifications of the nominee and deprives them of the ability to fully assess the nominee's fitness to assume the position of an Associate Justice of the United States Supreme Court.

***

The President and officers of the executive branch have interfered in the Senate's advice and consent responsibility in three critical ways: encouraging the Senate Majority to not request documents related to Kavanaugh's time while serving as Staff Secretary to George W. Bush; blocking access to an extensive set of documents related to the nominee's views and actions while serving in President George W. Bush's Office of White House Counsel; and blocking full access by all Senators and the public to documents delivered to the Senate Judiciary Committee but marked "Committee Confidential."

Senator Merkley asks the court to order that

(a) Defendant Trump withdraw his excessive invocation of executive privilege and produce a privilege log for documents truly subject to executive privilege;

(b) Defendants McConnell, Grassley, Adams, and Stenger not hold or permit a vote on the nominee's confirmation, or otherwise act to advance the confirmation process, until the National Archives releases his records, including the records requested by Senator Grassley regarding the nominee's work at the Office of White House Counsel, and there is sufficient time for the U.S. Senate to review the documents and conduct a careful review of the newly released documents;

(c) National Archives expedite the production of the documents to the earliest date practical;

(d) Defendant Burck cease and desist from usurping the traditional role of the neutral professionals at the National Archives.

http://lawprofessors.typepad.com/conlaw/2018/09/senator-merkley-sues-to-halt-kavanaugh-confirmation-process.html

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Comments

What's the actual impact of this expected to be?

Posted by: Alison | Sep 27, 2018 12:20:33 PM

I'll be surprised if the suit survives a motion to dismiss for raising a political question (or some such). I can't really see the courts touching this--which only underscores why it's a problem for a single party that controls both ends of Pennsylvania Avenue to put party interests above national and institutional interests.

Posted by: Steven D. Schwinn | Sep 27, 2018 4:27:46 PM

This case is the poster child for Rule 11 sanctions.

Posted by: Douglas Levene | Sep 30, 2018 7:40:29 AM

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