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Impeachment or Bust? Democrats Have Few Options on Kavanaugh Inquiries

Lawsuits, possible House probes expected, but party largely staying mum for now

Democratic members of the Senate Judiciary Committee ponder their next move during a session on the nomination of now-Supreme Court Justice Brett Kavanaugh on Sept. 28. (Sarah Silbiger/CQ Roll Call file photo)
Democratic members of the Senate Judiciary Committee ponder their next move during a session on the nomination of now-Supreme Court Justice Brett Kavanaugh on Sept. 28. (Sarah Silbiger/CQ Roll Call file photo)

Brett M. Kavanaugh looked bewildered. Sen. Kamala Harris looked perturbed but determined. It was hour ten of the then-Supreme Court nominee’s testimony before the Senate Judiciary Committee early last month, and the California Democrat seemed to have him backed into a corner.

Harris, a former prosecutor, was very much back in a courtroom. She was trying to get her witness, Kavanaugh, to reveal the name — or names — of anyone at the Washington law firm of Trump’s personal attorney with whom she alleged he had discussed special counsel Robert S. Mueller III and his ongoing Russia election meddling investigation the president almost daily refers to as a “witch hunt.”

But what started as a high-stakes chess match fizzled over ten meandering minutes into a draw. Harris was unable to get a name from her witness. She never offered one. Nor did she offer any anecdotal evidence that Democratic staffers might have unearthed while vetting the then-federal judge and former George W. Bush White House aide.

Three weeks later, Sen. Sheldon Whitehouse held up a placard showing one day from detailed calendars Kavanaugh kept during his high school years: July 1, 1982. The Rhode Island Democrat contended that a description of a beer-drinking gathering corroborated the testimony a day earlier of Christine Blasey Ford, who alleges Kavanaugh drunkenly sexually assaulted her at a house party that summer.

“We know … Kavanaugh was there because it’s his schedule and here is Judge and here is P.J. Here are all those three named boys and others at a house together just as she said,” Whitehouse said, using a black Sharpie to circle keywords on the calendar for emphasis. “She said Kavanaugh and Judge were drunk and that she had a beer. ‘Skis’ is brewskis, beer. They were drinking, just as she said.”

[Words and Deeds Can Come Back to Haunt Incumbents in Tight Races]

Left-leaning news outlets and columnists immediately dubbed it something just short of a smoking gun. But, poof, when Whitehouse’s time expired, so, too, did his line of inquiry.

The same was true of Kavanaugh’s first two days before the committee early last month. Several Democrats pressed him hard about his role in crafting controversial terrorist detention and interrogation policies in the Bush White House. Vermont Sen. Patrick J. Leahy was unable to gain much traction on an allegation that Kavanaugh, while in the White House, was privy to Democratic senators’ questions for Bush judicial nominees.

Delaware Sen. Chris Coons pressed Kavanaugh on Sept. 5 about his views on a president’s legal authority to “fire, at will, a prosecutor who is criminally investigating him?” The line on inquiry, Coons noted, reflected Democrats’ concerns that Trump chose Kavanaugh thinking he would provide protection should he fire Mueller and a subsequent case make it to the high court.

“I think all I can say, senator, is that was my view in 1998,” Kavanaugh said of comments he made that year at a Georgetown University forum. But the line of inquiry was never neatly closed, the man who now occupies the ninth seat on the Supreme Court, with his decisive fifth conservative vote, never provided a clear answer.

The exchanges are only a few examples of lines of questioning and evidence presented by Democratic senators during the partisan brawl that was Kavanaugh’s confirmation process that remain open. Few clear answers. And even fewer ways to get them now that Kavanaugh has been confirmed.

Watch: Midterm Races Tightening After Trump Defends Kavanaugh and Unleashes on Campaign Trail

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Impeachment or bust?

Senior Democratic leadership aides demurred when asked what the party can and likely would do to force answers from the justice. Notably, in public comments last week, top Senate Democrats focused on other issues such as Hurricane Michael, health care — even climate change. But their Kavanaugh outrage had largely faded from public comments by the time the chamber adjourned Thursday night for a four-week midterm election break.

Some House Democrats such as New York Rep. Jerrold Nadler, in line to become Judiciary chairman if his party wins a majority in November, have floated the idea of investigating Kavanaugh next year. Others are talking impeachment, though House Minority Leader Nancy Pelosi, likely to regain the speaker’s gavel if Democrats win the House, is advising her members to pump the brakes on impeachment talk.

Across the Capitol, Democrats are, as usual, taking a more measures and nuanced stance.

“I have not heard talk in the Senate of impeachment, but Senate Democrats are still interested in completing Justice Kavanaugh’s vetting,” an aide to a senior Democratic Senate Judiciary member said.

Senate Democrats still want to examine “more than 92 percent of his White House record that was kept hidden from the Senate and the public,” the aide said.

Democratic lawmakers have filed a lawsuit aimed at compelling the Justice Department to abide by a Freedom of Information Act request seeking documents stemming from Kavanaugh’s days in the Bush White House.

“The 10 percent of documents the Senate has reviewed already have revealed numerous instances where Justice Kavanaugh misled the Senate under oath,” the aide said.

That means the ball appears in voters’ hands — as is the case with a myriad issues as Election Day approaches with the House, and possibly the Senate, up for grabs. Hand Democrats the House, and Nadler can begin looking into whether Kavanaugh did indeed utter false statements to the committee.

[Grassley: Judiciary Won’t Consider Supreme Court Nominee for 2020 Vacancy]

But Democratic strategists such as Jim Manley side with Pelosi.

“I think these House Democrats need to stop this talk of impeaching Kavanaugh. What they need to do right now is keep their eye on the ball,” he said last week. “That means winning these tough races and winning back the House. … The point is there isn’t much Democrats can do.”

‘Safety valves’

For his part, President Donald Trump appears eager to keep the Kavanaugh embers burning. He has flatly stated he views the Democrats’ handling of the nomination and sexual misconduct allegations as a winner for Republicans in November.

“What the radical Democrats did to Brett Kavanaugh and his beautiful family is a national disgrace,” he said Wednesday night at a campaign rally in Erie, Pennsylvania. “But on Nov. 6, you can vote to reject the Democrats’ shameful conduct by electing [a] Republican House and, really, we need it badly, we need these votes, a Republican Senate.”

Trump’s recent rhetoric suggests he senses a fight ahead, especially given polling data that continues to suggest a Speaker Pelosi come January. So does GOP strategist Michael Steel, a onetime aide to former Speaker John A. Boehner, who says Democrats’ next best move on the unresolved Kavanaugh inquiries is just what Nadler and others have suggested.

“There is a very real chance — almost a certainty — that if Washington Democrats win a majority in the House, they will seek to impeach both the president and Justice Kavanaugh,” he said, “because they are entirely in thrall to the most outraged portion of their far-left political base right now.”

But would moving to impeach both the president and his second high court justice amount to a major self-inflicted wound for Democrats?

“Democrats will need multiple safety valves to deal with their frustration,” Steel said. 

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