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Jeff Merkley’s bid to stall Kavanaugh vote likely to fall short

October 4, 2018

Sen. Jeff Merkley’s lawsuit asking a judge to try to stop a confirmation vote on Supreme Court nominee Brett Kavanaugh is likely to fall short after a judge set a hearing for Tuesday days after the Senate is expected to have voted.

Mr. Merkley filed his long-shot lawsuit last week but waited until Wednesday to ask a judge to issue a restraining order blocking a vote.

The judge set a hearing for next week, following an exchange of briefs meaning that if the GOP sticks to its schedule for votes, Judge Kavanaugh will be on the high court before any ruling would be made.

Mr. Merkley, in his court filing, acknowledged that once the Senate votes, his lawsuit will be moot.

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 and 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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