Sen. Jeff Merkley (D-OR) has filed suit against Donald Trump, as well as, among others, Senate Majority Leader Mitch McConnell, Sen. Chuck Grassley (R-IA), the National Archives, and the Bush operative who is screening Kavanaugh’s records, Bill Burck, in federal court in D.C.
Merkley’s alleging that the White House has interfered with senators’ role in confirmation by withholding documents. It’s a separation of powers violation, he argues, in that the executive branch is keeping the legislature from its constitutionally mandated responsibility to provide “advice and consent.”
Senator Merkley has been injured by being prevented from performing the constitutional duty that he swore to perform when he took the oath of office. 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.
The complaint cites the Federalist Papers to round out the notion that the duty of advice and consent is substantial, a check on the president and the individuals he selects to fill the executive branch.
To exercise this responsibility, to “prevent the appointment of unfit characters,” Senators must have the full ability to examine a nominee’s record and to do so without interference or obstruction from the executive branch. Such obstruction or interference deeply compromises the separation of powers envisioned in the Advice and Consent Clause.
Pretty straightforward, right?
Merkley cites three executive-branch offenses that have interfered with senators’ ability to fulfill their responsibility.
[1] encouraging the Senate Majority to not request documents related to Kavanaugh’s time while serving as Staff Secretary to George W. Bush; [2] 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 [3] blocking full access by all Senators and the public to documents delivered to the Senate Judiciary Committee but marked “Committee Confidential.”
Merkley is hoping that the judiciary will step in to check the executive branch’s interference with legislative power. To that end, he’s asked the court to enjoin—prevent—a Senate vote on Kavanaugh until his full record is available, which should include the criminal allegations against him.
In weighing whether to grant a preliminary injunction, courts assess each party’s likelihood of prevailing at trial, the extent of irreparable harm, and interests implicated in the case. In that context, I predict the court doesn’t grant an injunction and generally stays out of this fight.
There’s a limited body of case law surrounding legislators’ efforts to sue. In a 1979 case over the president’s unilateral termination of a treaty, the D.C. Circuit held that for a legislator to have grounds to sue the president over a vote, “the alleged diminution in congressional influence must amount to a disenfranchisement, a complete nullification or withdrawal of a voting opportunity.”
Contemporaneously, a senator sued a government body with un-confirmed members, again in the D.C. Circuit, arguing that the institution was unconstitutional because the Senate did not provide “advice and consent.” Cases take a while to wend through, so two years later, the court ruled that if legislators satisfied the normal—non-congressional—rules for standing, the court would address the separation of powers issue, but apply the “doctrine of circumscribed equitable discretion.”
Bottom line: If Congress can solve the problem, that’s where the problem belongs. Basically, the court told senators to work it out amongst themselves.
The Supreme Court addressed standing requirements for members of Congress seeking to sue the executive in 1997. The majority’s decision affirmed the notion that legislators can’t sue the executive over an issue that can be resolved within Congress.
It’s this principle that’s likely to sink Merkley’s suit. In essence, to the extent that the Senate could resolve the obstacles he’s cited, the court will exercise its discretion to leave it with Congress. That’s terrible to contemplate: What Republicans are doing threatens democracy itself, from eroding trust in Congress and the Supreme Court to eradicating norms of civility and cooperation.
Remember, it’s not just Democrats pushing for a full accounting. Sen. Lisa Murkowski (R-AK) supports investigating Kavanaugh. Murkowski urged Deborah Ramirez, the second woman to make allegations of sexual assault against Kavanaugh public, to come forward.
Merkley’s argument, interestingly, inverts that made during the abortive confirmation process for Judge Merrick Garland. Then it was argued that the Senate was obligated to move the confirmation process forward as part of their duty to advise and consent. We’ll see if the court is more willing to block than force a vote. It's not likely.