The main event during Wednesday’s confirmation hearing for Brett Kavanaugh was Democrats’ open rebellion. Cory Booker took on Chuck Grassley, backed by fellow Judiciary Democrats, and won. There’s no other way to put it. Read on for the primary recap then senator-by-senator highlights.
That was the moment that John Cornyn got scared: He jumped in to jab Booker and to ask him to “reconsider” releasing the email. Grassley got so bothered that the CSPAN camera probably picked up spittle flying. This is one of several things that prove their belated claim that thousands of pages of Kavanaugh documents were all ready to be made public anyway is BS.
Sheldon Whitehouse (D-RI) came in hot right behind Booker, backing him up and landing a few excellent blows of his own.
Whitehouse was followed by Richard Blumenthal (D-CT) and even Dianne Feinstein (D-CA), who’s been holding back throughout—maybe because she’s the ranking Dem.
Then Dick Durbin (D-IL) starts digging in: Putting George W. Bush’s lawyer, Kavanaugh’s former colleague, in charge of document review for this process is outrageous.
Durbin backs Booker strongly, and you begin to get a sense of how coordinated the Democrats’ strategy here was.
Durbin also takes aim at Cornyn and Grassley for personal attacks on Booker; they’ve assailed Booker for “cross-examining” Kavanaugh and called Booker’s conduct “unbecoming of a senator.”
Can anyone claim they would have said the same to a white man?
Mazie Hirono’s (D-HI) just as fierce as Durbin; Amy Klobuchar (D-MN) meanders a bit, but comes across as backing Booker as well in the end.
Within the hour, Booker released the Kavanaugh emails on racial profiling as promised. These emails are no doubt the tip of the iceberg, which could create real trouble on the right given Sen. Tim Scott’s (R-SC) previous willingness to tank a racist judicial nominee.
Hirono followed shortly thereafter, releasing documents regarding Kavanaugh’s views on indigenous people’s legal rights. She’s going hard after Lisa Murkowski (R-AK).
The White House jumped in—via “I don’t talk to Raj” Shah—with a cite to Senate Rules, which, of course, don’t apply to this faux “committee confidential” classification that has no place in the Judiciary Committee.
Elsewhere on the Hill, Chuck Schumer jumped in. Theory: This was Judiciary Democrats’ doing and Schumer’s just jumping on the bandwagon. Otherwise, he’d be claiming credit for orchestrating it. (Not that he can’t still do so.)
Don’t forget John Dingell (D-MI).
As Feinstein joins in with the releases, the GOP fabricates a retreat.
Simply not true.
Mazie Hirono
She’s one of the VIPs not just for Day #3, but the whole show. She opened the third day with a top flite zinger.
Hirono’s mission to expose Kavanaugh’s racist and anti-indigenous views has induced feelings not just of satisfaction but hope: How can Murkowski stick by this guy?
Lest anyone forgot, Hirono is a lawyer, and a very good one. The emails she released and now several exchanges with Kavanaugh illuminate his position on indigenous peoples. Hint: It’s crappy.
She also catches Kavanaugh at misrepresenting the case for which he wrote an amicus brief—also on the brief? Robert Bork—and about which he wrote an op-ed. Kavanaugh was, of course, representing an amicus aligned with a white rancher protesting his inability to vote in Office of Hawaiian Affairs elections. Kavanaugh argued the policy violated the 14th and 15th Amendments, and, further, that Hawaiians are not indigenous people deserving of recognition as such.
But that’s not all, folx.
An extremely effective line of questioning that Hirono followed with an inquiry into Kavanaugh’s position in Priests for Life, a Hobby Lobby-type case about whether it was reasonable to make an organization fill out two pages of paperwork to be exempted from the contraceptive mandate. She contrasts that with his Jane Doe abortion case.
But there’s MORE! Mazie’s got him on the Muslim Ban.
Hirono also zeroes in on one of the Supreme Court’s most egregious recent departures from established precedent: Janus, a labor case that crushed unions. In Janus, the conservative majority claimed that earlier disagreement was adequate notice to get around the concern that unions have relied on the overturned precedent for 40-plus years.
Sheldon Whitehouse
Whitehouse also reminded all watching that he’s a formidable lawyer. He caught Kavanaugh up on several lines of questioning. First, and simplest, whether Kavanaugh would allow journalists who spoke to him during his Ken Starr days to reveal him as a source. Kavanaugh sweated, ducked, and generally looked uncomfortable.
Kavanaugh also stumbled into some rhetoric that would have embarrassed a student in class, never mind a federal judge before the Senate Judiciary.
Whitehouse pressed the attack, but Kavanaugh retreated once more to saying he didn’t know what he meant 20 years ago but he guesses he must have meant DOJ Office of Legal Counsel guidance. Again, that’s not law, folx.
A simple point, but an important one: Whitehouse goes back to Kavanaugh’s ties to the head of the Federalist Society, Leonard Leo.
In his most lawyerly moment, Whitehouse calls Kavanaugh out for mentioning Nixon—which held the president could be subpoenaed—but always, always referring to how the subpoena in that case was from a trial court. If Robert Mueller subpoenas Trump, it’ll be a grand jury subpoena.
Chris Coons (D-DE)
Coons, like Harris, has concerns about what Kavanaugh means for unenumerated rights. He goes after the precedent that Kavanaugh keeps hiding behind, Glucksberg, in which SCOTUS struck Washington’s assisted suicide law.
Per Glucksberg, the Fourteenth Amendment protects “personal activities and decisions … deeply rooted in our history and traditions” and/or “fundamental to our concept of constitutionally ordered liberty.”
Touché, Chris Coons.
Amy Klobuchar
One of Klobuchar’s first points was among the most disturbing made about Kavanaugh’s history as a judge.
Klobuchar calls Kavanaugh on writings in which he actually says that the courts shouldn’t shy from constitutional questions—that’s the canon of constitutional avoidance. To call that canon conceptually relevant to stare decisis, the idea that settled law (like Roe) should stand, would be an understatement.
It’s more and more obvious that a candidate this flawed—which is to say, with this document problem and such obvious instances of bad judging—could only be selected for a particularly compelling, redeeming reason. (Cough, protecting Trump.)
Klobuchar’s big on anti-trust, and it’s no surprise she’s also concerned about agencies.
Kavanaugh and co. want a world where they can strike old regulations and block new ones with ease.
Richard Blumenthal
Kavanaugh kept analogizing executive power to prosecutorial discretion, which is, to put it plainly, asinine. It’s Kavanaugh's position—on the record—that the president can refuse to enforce a law even if a court’s said that law is constitutional and stated it must be enforced. Blumenthal was picking up where Klobuchar left off on Day #2.
For a guy who really likes to wave the Constitution, and really wants to do away with all precedent that cites rights not explicitly spelled out in the Constitution, Kavanaugh’s missed a pretty critical part of the document itself.
Blumenthal also trapped Kavanaugh on Trump’s attack on Judge Gonzalo Curiel.
The most powerful part of Blumenthal’s questioning concerned gun laws. He talks about what it was like to be at Sandy Hook on the day of that shooting. He lists the shootings that have occurred since. Then he cites Heller II, a gun control case in which Kavanaugh’s Republican colleagues wrote, in the majority opinion, “Unlike our dissenting colleague, we read Heller straightforwardly.”
Dianne Feinstein
Feinstein pointed out that Trump can’t even withhold Kavanaugh’s Bush-era documents without explicitly invoking privilege, which he hasn’t done. It’s sad that this point is lost in the fray, given it’s a valid, serious legal point illustrating how far Republicans have gone to usurp this process.
She joins Booker in pressing Kavanaugh on his role in the Bush White House attack on affirmative action.
Then, winning my heart forever, DiFi gets to LGBTQ rights.
Kamala Harris
She’s got something on Kavanaugh vis-á-vis Kasowitz, Benson, and Torres. He’s still dodging her, but more uncomfortable than ever. Her followup coincided with this fun revelation.
She zeroed in on recusal and, in one of the more effective strategies Democrats employed, compared him to past nominees and sitting justices—preempting his refrain that he’s doing just what the “the eight sitting justices” did.
Bless her, Harris also gets Kavanaugh on gay rights.
She brings it back to the Muslim Ban—Harris and Hirono make an excellent team.
Harris also does the best job of any senator—she’s joined by Hirono in this—on pressing Kavanaugh as to exactly which unenumerated rights he thinks need to go.
Of course, it’s not about Kavanaugh taking out one right or another. Unenumerated rights are like a house of cards. Take out one underlying legal foundation, and they all go.
Finally, Harris tackles Kavanaugh’s prediction that it’s a matter of time before “in the eyes of the government, we are just one race.”
As Vanita Gupta, head of the Leadership Conference on Civil and Human Rights said, “That kind of statement really signals that he will bring an anti-civil-rights agenda to the Supreme Court and fails to recognize the current reality of being a person of color in this country and the history of discrimination.”
Cory Booker
Booker followed up his racial profiling document release with documents on school busing and affirmative action.
We can expect a steady stream of releases.
After the initial skirmish, Booker uses his time to press Kavanaugh once more on how much he knows about this sham “document review” orchestrated by Bush’s lawyer.
Booker lands a very solid blow with a very simple question about Kavanaugh’s ability to repeat a statement he gave about Bush during his appellate court confirmation about Trump during this Supreme Court proceeding.
Booker takes a shot at getting Kavanaugh on the record on LGBTQ rights from the moral angle.
Patrick Leahy
Generally cordial, Leahy lost his patience a few times on Day #3.
It’s no wonder Leahy lost patience … and joined Booker and Hirono in releasing documents. Again, a heartwarmingly coordinated effort by the Judiciary Democrats.
Leahy perhaps most of all has led the charge on proving that Kavanaugh has lied under oath—previously, and again now.
Leahy also exposes (once again) Kavanaugh’s habit of ignoring fact and law to get to his party’s favored ruling—this time on collecting phone data.
Republican dangers
Lindsay Graham makes no bones about his desire to see unenumerated rights repealed.
John Kennedy takes up the same topic, a little more expressly.
It was when Ted Cruz was questioning Kavanaugh about Priests for Life that Kavanaugh slipped up and referred to birth control—again, birth control—as abortion-inducing drugs. That’s base bait if I’ve ever heard it.
Republican disgraces
Just for fun, some of the stupidest questions Republican senators asked over the past few days.
Mike Lee ignored substantive issues; he wanted to know about Kavanaugh’s writing instrument.
Kavanaugh’s reply, that he needs a pen that bold to be able to see, was supposed to elicit chuckles. Mostly it just exposed a curious vanity or insecurity.
This is less a disgraceful question than absurd assertion.
Then there’s this graver, ridiculous comment about democracy from—surprise, surprise—John Kennedy.
Then, of course, there’s Cornyn calling the Brennan Center for Justice, at NYU Law, a “left-leaning, aggressive group like NARAL.” The Brennan Center’s mission “fights for the ideals promised at our nation’s founding. We work to build an America that is democratic, just, and free.” That probably does sound radical to Cornyn.
Let’s close with another serious reason to oppose Kavanaugh: His crossing RBG.