WASHINGTON, DC – Senate Minority Leader Chuck Schumer is threatening to sue the National Archives for not giving Democrats documents on Judge Brett Kavanaugh, despite the fact that Archivist David Ferriero — who denied the request — was appointed by Barack Obama.
As Breitbart News reported Thursday, Senate Judiciary Committee Chuck Grassley (R-IA) has requested a record-breaking 900,000 pages of documents on Kavanaugh, but because the National Archives cannot provide all those pages before October 1 when Kavanaugh needs to be sitting on the Court for its next annual term, a top Bush White House lawyer and a team of 50 attorneys are separately providing those documents.
Democrats are objecting to that process as well, even though it has resulted in 200,000 pages of documents already given to the senators — already more than the total number of documents for any Supreme Court nominee in U.S. history.
But a new twist has emerged, arising from Sen. Richard Blumenthal’s (D-CT) FOIA request (Freedom of Information Act) to the Archives for those very same documents.
Although considered a longshot legal move, Schumer (D-NY) announced on Friday that senators are prepared to sue over the FOIA request, seeking a court order to divulge them.
There are several potential hurdles for such a lawsuit. For one, the Supreme Court’s 1997 case Raines v. Byrd makes it unlikely that these senators have legal standing to sue as senators; the House and Senate operate by majority vote, and Raines holds that the full body must vote to authorize suit to assert the rights of the entire chamber. The senators would have to sue as individuals, no different from any private citizen.
Another hurdle is that it will take time to litigate this suit. The Archives will release these documents by October 31, at which time this case will surely still be tied up in court. The only documents that the (Obama-appointed) Ferriero will not disclose by that time are ones that are exempted from disclosure because of some sort of legal privilege, which are also exempted from FOIA. That being so, this suit looks more like political posturing than a serious legal strategy.
This strategy will put red-state Democrats in an even tougher position, however. This political-stunt lawsuit appears to be an attempt to delegitimize Kavanaugh’s confirmation process and gin up the left-wing base. Liberal activists and Democrat grassroots will have yet another argument from which to demand that every Democrat in the Senate must oppose Kavanaugh, making it more difficult for those senators to be re-elected in November.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.