Mr. Merkley has filed a long-shot lawsuit arguing President Trump has violated the Constitution by withholding documents from Judge Kavanaugh’s past, denying senators the ability to make an informed decision on the nomination. That, he says, violates the Constitution’s demand that the Senate give “advice and consent” on nominations.
The Oregon Democrat asked for a hearing Friday afternoon or Saturday morning, just before the Senate is expected to hold a final vote on the judge’s elevation.
“Once the vote is taken, plaintiff’s ability to comply with the Constitution’s advice and consent process will be permanently extinguished,” the senator’s lawyers wrote to Judge Amy Berman Jackson, an Obama appointee to the federal district court in Washington, D.C.
Judge Jackson on Wednesday scheduled a hearing for next Tuesday, after all sides had a chance to submit briefs.
He asked Judge Jackson to issue a temporary restraining order prohibiting the Senate from taking a final vote.
The Justice Department, in a reply Thursday night, said Mr. Merkley already has an avenue to object to the process — he can attempt to filibuster and, should that fail, he can vote against the nomination.
“Plaintiff’s dispute is primarily with his fellow senators,” the government’s lawyers said in their brief.
While a judge’s order could be difficult to enforce on senators, Mr. Merkley said he hoped it would “prompt” the chamber to take yet another delay.
“I know that asking the court to intervene to protect the separation of powers and the integrity of the confirmation process is an unusual request. I have made this request because we have never seen such an extraordinary use of executive privilege to block the Senate’s ability to review the relevant record of a nominee,” the senator said in a declaration to the judge.
The root of his complaint is that undecided senators need to be able to see as much information as possible, and without access to millions of pages of documents still being processed by the National Archives, those decisions cannot fairly be made. He says that means senators can’t do their constitutional duty to give “advice” or to “consent” to the nominee.
Mr. Merkley, Oregon Democrat, is not one of those who is undecided.
He announced opposition to any Trump nominee even before Judge Kavanaugh was named. But he said in his court papers that he’s been unable to keep his constituents informed because he doesn’t have access to the information.
“Defendants President Trump and [Bush lawyer William] Burck have so thoroughly degraded the advice and consent process as to render any nominal vote that occurs on the nominee to be constitutionally meaningless,” the senator’s lawyers argued.
Meanwhile Sen. Richard Blumenthal, Connecticut Democrat, is leading another lawsuit pushing the Archives to speed up release of the millions of pages of documents. Mr. Blumenthal filed a request under the Freedom of Information Act, and the request has yet to be fulfilled.
Lawyers for both sides are still working on a schedule for producing those documents, but it’s unlikely they get far over the next couple of days before a final confirmation vote.
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