Home » Advice & Consent 2.05: Meeting Manchin and Asymmetrical Document Standards

Advice & Consent 2.05: Meeting Manchin and Asymmetrical Document Standards

On this episode: our thoughts on Judge Kavanaugh’s meeting with WV Sen. Joe Manchin and the continuing saga of asymmetrical standards applied by GOP Senators between appointees of their party’s President and Democratic Presidents.

But first, some quick hits:


  • Brett Kavanaugh is polling in territory no SCOTUS nominee would like… comparable to former nominees Robert Bork and Harriet Miers. We know how those ended up.
  • In literally the least shocking thing to ever happen in Washington, Sen. Rand Paul cried wolf, the press ate it up, and he fell back to the party line. It’s a seasonal absolute in DC, on par with cherry blossom blooms, inflated optimism over the Nationals chances, and Metro outages.
  • Kavanaugh returned his questionnaire. We used to do full episodes on these, because they often had interesting information. Now they highlight CYO basketball standings, so  ¯\_(ツ)_/¯
  • Senate Majority Whip John Cornyn is pretty convinced a near-election day vote on Kavanaugh is to their advantage. At the (shock!) Koch summer picnic-slash- annual meeting he said Democrats are “sick to their stomach” and have had the “living daylights” scared out of them by the threat of a vote hovering at the apex of election season.
  • Ruth Bader Ginsburg declared she’s planning on at least another five years on the high court, which made more people happy for a person working into her 90s than just about anyone in US history.


Kavanaugh Meets Manchin


Manchin sits with Kavanaugh, but wants another meeting (Politico)

Manchin Is First Democrat to Meet With Kavanaugh as Parties Intensify Feud (NYT)

Dem dam broken: Kavanaugh meets with swing-vote West Virginia Sen. Manchin (Fox)


The session was “very productive” and that Manchin noted he will meet with Judge Kavanaugh again after the confirmation hearings.



Sidebar… I am a WVian by property ownership, not birth. I’ve been a regular emailer of Sen. Manchin, asking for him to vote against the Kavanaugh nomination. Full disclosure.


Manchin is facing a pretty stern challenge from the WV AG and is walking a tightrope on this politically in a state that (trust me) is rockin the MAGA hat in a lot of corners. He’s in a bit of a no win situation here. Come out forcefully against Kavanaugh out of the gate, and he’s hammered on siding with Senate Dems in lockstep. Voting for Kavanaugh like he did for Gorsuch may doom his electoral chances by having disillusioned Democrats throwing their hands up and declaring they may as well have a Republican in that seat, so why bother.


The play seems to be the usual thread the needle strategy. Take a long time, have as many meetings as you can. Talk about how important of a vote this is. Stall. If your vote is needed to keep Kavanaugh off the court, vote against. If your vote is not needed (i.e. no GOP defection)… probably end up voting for the nominee.


My hot take… I think if he votes for Kavanaugh, he loses re-election. If he votes against, he wins. There are still Democrats in WV, no matter how many tattered Don flags I see driving out to my place.




Manchin is a smart politician. Dumber politicians would have done more to tip their hands. Manchin both managed to sound courteous and say absolutely nothing that boxed himself in. As Tim alluded to, the Democratic leader, Sen. Schumer wanted no one to meet with Kavanaugh before the document production standards were agreed to by Dems.


But Manchin played it smartly anyway, saying that he needs another meeting.


The re-election issue is interesting, since labor is strongly opposed to Kavanaugh as we may talk about later and Manchin needs support from organized labor.


Asymmetrical Standards for Doc Production


Hey remember when Justice Kagan was up for nomination and the GOP was all over getting every stitch of correspondence she ever produced in the White House and as Solicitor General so they could do a thorough review of her legal record as a part of a robust nomination process?


Yeah, nevermind that. From the NYT:


Senate Democrats have been avoiding the standard meet-and-greet courtesy visits with the judge as they clash with Republicans over access to emails from his time as staff secretary to former President George W. Bush. But Democrats appear to be losing that battle; on Friday, Republicans asked the National Archives for certain documents related to Judge Kavanaugh, but they left the Bush White House emails out of the request.




Senate Republicans are once again making up distinctions that don’t exist to create asymmetrical standards between nominees of Republican and Democratic Presidents. There’s a treasure trove of information on Judge Kavanaugh in his judicial opinions, but we can absolutely assess the extent of our concerns regarding his political nature by seeing these emails. So of course, the GOP Senate is stonewalling because they know that’s where this nomination is vulnerable.




I think this is a fight Republicans will lose and that they know they’ll lose, so it’s just a strategic ploy. At the end of the day, the last things McConnell and Grassley want to give anyone is an excuse to vote against Kavanaugh for a non-substantive reason. It’s always easier to vote against a judicial nominee for a reason other than there is something wrong with the nominee’s ideology. That sounds too much like wanting judges who will decide specific cases the way you want them to. (NOTE: Of course, that’s what people are looking for, but it goes against our image of the judiciary.) If there’s a problem with ethics (see Fortas) or a problem with too thin a record (Miers) or a problem with an undisclosed record, that makes a no vote easier.


So why are they intentionally picking this fight? It’s because if Senate Dems and outside activists are busy wasting their time on this fight, they have less resources to work on other anti-Kavanaugh issues.


The danger: The longer this stall goes on, the less chance there is to confirm someone else if Kavanaugh goes down. I hear Cornyn saying he wants to have the vote right before the election. But McConnell has also said that Kavanaugh is one of the nominees it would be most difficult to confirm. Does McConnell really want to run the risk of Kavanaugh going down and then a new Senate with a Democratic majority, which says “no confirmation hearings for a Supreme Court nominee other than Merrick Garland” deciding whether to confirm a Trump nominee to the Court?

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