Senate Democrats staged an aggressive bid Tuesday to slow the confirmation of Supreme Court nominee Brett Kavanaugh as fury over a selection that could tilt the nation’s top bench to the right for a generation exploded on Capitol Hill.
Potential 2020 Democratic presidential hopefuls Sens. Cory Booker and Kamala Harris led the charge, accusing the White House and the Republicans of hiding key details about Kavanaugh’s time as a Bush-era White House lawyer by refusing to publicly release tens of thousands of documents. They also decried a dump of 42,000 documents on Monday night hours before the hearing.
Sen. Dick Durbin, D-Illinois, put the issue directly to Kavanaugh: “For the sake of this nation, for the sanctity of the Constitution that we both honor, step up, ask this meeting, this gathering to suspend until all the documents of your public career are there for the American people to see.”
After more than an hour or interruptions by senators and repeated screaming protests from the public gallery, the business of the hearing went ahead and Democrats tried a new tack — warning that since President Donald Trump has challenged legal and constitutional norms, his pick for such a crucial pick deserved extra scrutiny.
Kavanaugh, Trump’s second Supreme Court nominee, is poised to succeed swing vote Justice Anthony Kennedy, the conservative-centrist who joined with liberals in some key decisions to uphold abortion rights. Kennedy was also the decisive vote for same-sex marriage and university affirmative action.
The theatrics reflect the impotence of Democrats who lack the votes in the Senate to block Kavanaugh’s confirmation. It is not even certain all Democrats will stick together since endangered liberal senators up for re-election in red states are under intense pressure to back the confirmation.
The clashes in the hearing were part of a long awaited political spectacle. But consistent with the uproar of the Trump era, Kavanaugh was upstaged even before he delivered his opening statement, as stunning revelations began to emerge of a new book by veteran reporter Bob Woodward that portrays Trump as a grave threat to national security and raging and incompetent.
Harris opened the protest as soon as Judiciary Committee Chairman Grassley brought the hearing to order in line with a plan drawn up by Democrats over the weekend.
“What are we trying to hide, why are we rushing?” Vermont Sen. Patrick Leahy asked.
But Grassley denied Democratic attempts to get a vote in the committee on whether to adjourn the hearing, and complaints that the late arrival of the documents and other controversies flew in the face of committee rules and basic fairness.
“This is something I have never gone through before in 15 Supreme Court nominations. I was interrupted before I got a chance to say the agenda for today,” said Grassley.
Republican Sen John Cornyn of Texas complained the hearing was being overtaken by “mob rule” His colleague Orrin Hatch from Utah demanded that a “loudmouth” protester who was drowning out his remarks should be removed.
Kavanaugh watched the arguments in the committee with a bemused look on his face, with his pen poised over a white legal pad.
When the hearing turned from controversy over process to substance, Durbin thrust home the meat of the Democratic case.
“You are the nominee of President Donald John Trump. This is a President who has shown us consistently that he is contemptuous of the rule of law,” Durbin said. “It’s that President who has decided you are his man.”
A ‘pro-law judge’
When he does begin testifying, Kavanaugh, in his first major test as a Supreme Court nominee on Capitol Hill, is expected to tell senators that he is a “pro-law judge.”
“A good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy,” he will say, according to excerpts of his prepared remarks. “I don’t decide cases based on personal or policy preferences. I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge.”
Likening a judge to an umpire could be a reference to Chief Justice John Roberts’ confirmation hearing back in 2005, when he said his “job is to call balls and strikes and not to pitch or bat.”
“To me, Justice Kennedy is a mentor, a friend, and a hero. As a Member of the Court, he was a model of civility and collegiality. He fiercely defended the independence of the Judiciary. And he was a champion of liberty,” Kavanaugh will say, per the excerpts.
Kavanaugh, currently a circuit judge on the United States Court of Appeals for the District of Columbia Circuit, will also praise his colleague Judge Merrick Garland, President Barack Obama’s unsuccessful Supreme Court nominee.
“I have served with 17 other judges, each of them a colleague and a friend, on a court now led by our superb chief judge, Merrick Garland,” the prepared remarks say.
Controversy over documents
Ahead of Tuesday’s hearing, the first of a week of confirmation hearings for the nominee, committee Democrats criticized the Trump administration for holding back documents related to Kavanaugh’s service in the George W. Bush White House. The administration held back more than 100,000 pages of documents related to his service because the White House and the Department of Justice have determined they are protected by constitutional privilege, according to a letter to the Senate Judiciary Committee.
On the eve of the hearing Monday night, the Senate was given an additional 42,000 pages of documents, prompting criticism from Senate Minority Leader Chuck Schumer. Grassley, a Republican, tweeted that his staff completed the review of “each and every one of these pages.”
A White House official said that Trump aides believe Democrats have made a strategic mistake by focusing on document production, an issue they believe has left Kavanaugh unscathed but has left Democratic lawmakers looking like they are fixated on a bureaucratic dispute.
Going into Tuesday’s hearing, White House aides believe their nominee’s task of introducing himself to the country hasn’t been made more difficult in the weeks leading up to this hearing. Kavanaugh will have an opportunity to introduce himself and his approach to the bench in his own words.
Kavanaugh has been prepping intensively in recent weeks but he held his last, full-day mock hearing last Monday, the White House aide said. Since then, he’s been doing mini-debate prep sessions at his home or in his chamber.
Some of the sessions have focused on making sure that he was comfortable “with people shouting him down” or being heckled by protesters.
“This isn’t his first rodeo,” said the official, who acknowledged that Kavanaugh has been a judge for 12 years and judges don’t often get interrupted or stopped mid-sentence. So advisers have put in a lot of time priming him for what is likely to be a contentious hearing.