SALEM, Ore. — An Oregon senator filed suit Wednesday in federal court in the District of Columbia, charging that the Trump administration violated the Constitution’s separation of powers by withholding from the Senate 100,000 pages of documents on Supreme Court nominee Brett Kavanaugh.
Sen. Jeff Merkley, a Democrat, is asking the federal court to order the administration to produce the papers and to delay confirmation hearings until senators can digest them.
“This is an unacceptable violation of separation of powers and I’m standing up and filing this case to say, ‘this must end’ ” Merkley told reporters in a conference call from the nation’s capital. “And we’re seeking the court to intervene and give senators access to the nominee’s record.”
Kavanaugh’s nomination has become more controversial after three women claimed he had engaged in sexual misconduct in the 1980s.
Merkley said the women are being treated horribly, even worse than Anita Hill, who testified in Supreme Court Justice Clarence Thomas’ confirmation hearings in 1991, because no investigation is being done.
“The Senate judiciary committee is turning this into a ‘he said-she said’ presentation,” Merkley said.
Asked during a conference call with reporters if he expects his lawsuit to have any effect, Merkley responded: “This is completely untested territory.”
“I certainly would like to see an injunction that would tell the president to desist in the undocumented unjustified use of so-called presidential or executive privilege to block the Senate from having access to documents,” he said.
As far as anyone can tell, a president has never acted so extensively to block the ability of the Senate to review the record of a nominee, so a court has never had to weigh in on such a situation, he said.
Courts generally defer to procedures of the Senate, but in this case the procedures “are being profoundly compromised by a violation of separation of powers,” said Merkley.
He has also taken on President Donald Trump for his “zero tolerance” immigration policy that saw immigrant parents separated from their children.
Records from when Kavanaugh worked in the George W. Bush White House as legal counsel and then as staff secretary are at the center of the dispute. The Trump administration says disclosing records from his tenure as legal counsel would disrupt the functions or decision-making processes of the executive branch.
Merkley said when a president asserts executive privilege, it’s normally done on a very small number of documents with a log that lays out the justification for each piece.
“In this case there is no log … there is no explanation. It is a wholesale censorship of relevant documentation being done at the direction of the president of the United States of America,” he said.
