Cory Booker; Brett Kavanaugh (AP/Salon)

Democrats turn up the heat in Kavanaugh hearing — and start to leak damning evidence

After two days of complaints about Supreme Court nominee's hidden documents, Democrats start releasing them


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Amanda Marcotte
September 6, 2018 8:15PM (UTC)

It's starting to look like Democrats have an actual strategy aimed at blocking the confirmation of Brett Kavanaugh, Donald Trump's nominee for the Supreme Court.

On Tuesday, Democrats on the Senate Judiciary Committee hijacked the first two hours of Kavanaugh's confirmation hearings with a series of protests. Senate Republicans, the opposition party observed, has worked with the Trump administration and a Republican legal team to hide the vast majority of documents from Kavanaugh's public service record from both the committee and the public.

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Wednesday mostly proceeded as a normal day of questioning a nominee, but the Democrats continued to drop strong hints about the contents of the small fraction of Kavanaugh's record that has been made available to committee members but labeled as "confidential" by Republicans, meaning it cannot be released to the public. Their message was driven home clearly: Kavanaugh is hiding something and his Republican backers are helping him do it.

On Thursday, Democrats made their next big move. Shortly before the hearing convened for the third day, the New York Times published a series of emails from Kavanaugh's time in the George W. Bush administration. These emails evidently came from material released to the Senate committee but unavailable to the public at large. Shortly after Judiciary chair Sen. Chuck Grassley's gavel went down, Democrats started to indicate that they're ready to start showing receipts.

As they did on Monday, Democrats began to raise objections and demand an adjournment, on the grounds that too many documents are being hidden from the public. Emails from Kavanaugh's White House days have been classified as "confidential" for reasons Sen. Richard Blumenthal, D-Conn., said were "arbitrary and seemingly capricious" and meant to spare Republicans "embarrassment," rather than for reasons of personal safety or national security. 

“No Senate rule and no history of the Senate accounts for what is going on right now," said Sen. Cory Booker, D-N.J. He pointed to a Kavanaugh email about racial profiling that had been classified as confidential, observing that this designation exposes the confirmation process as "a bit of a sham.”

Booker then declared his intention to leak the email, even though he faces the hypothetical penalty of expulsion from the Senate for doing so. Booker then went on Twitter and released the documents.

Vociferous Democratic support for Booker's gambit — notably from Sen. Mazie Hirono, D-Hawaii, who also promised to release confidential documents, and did so — caused Grassley, in frustration, to drop his usual workmanlike committee-chair veneer.

“Do you want to give up your emails now? I don’t think you do," he barked at the Democrats, trying to frame the issue as a question of privacy rather than a matter of Republicans trying to hide important evidence from the public. 

The New York Times article suggests that these "confidential" emails aren't particularly private, but that they do indeed contain information that undermines Republican efforts to portray Kavanaugh as a fair-minded, impartial judge. The email flagged in the headline, for instance, is one in which Kavanaugh objected to a Bush-era characterization of Roe v. Wade as the "law of the land." He wrote, "I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so."

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That email is telling because throughout these hearings Kavanaugh has insinuated that he will not vote to end abortion rights, by way of a complex rhetorical game in which he talks about respecting precedent while avoiding any clear commitment to upholding precedent on the issue of abortion rights. The email's language suggests that his lofty rhetoric about the importance of precedent is for the cameras, while behind the scenes in a White House job he assured his colleagues that precedent can be overturned.

"Now we know exactly why Republicans are hiding his records," Ilyse Hogue, the president of NARAL, said in an emailed statement, arguing that Kavanaugh "has been hiding his true beliefs" and "will gut Roe v. Wade."

Sen. Dianne Feinstein, D-Calif., circled around to the question of abortion rights, as she had on Wednesday, asking that the leaked email be put into the Senate record. She then asked Kavanaugh to "tell us why you believe Roe is settled law."

Kavanaugh deflected the question, as he had done repeatedly on Wednesday, by issuing a lengthy history lesson on what "precedent" means and how abortion rights have a lot of precedent behind them. That word-dump was clearly meant to give the impression that Kavanaugh feels bound by this precedent — although he has been careful never to say that straight out — but in light of an explicit remark that the Supreme Court is not bound to follow precedent, those words rang hollow.

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Booker and Hirono appear to be digging into similar arguments. Kavanaugh has repeatedly presented himself to the committee as racially sensitive, egalitarian and even somewhat progressive. The "confidential" emails leaked by the two senators show him undermining Native Hawaiians, questioning rules against racial profiling, and sneering at affirmative action programs meant to address long-standing inequalities.

That material is mostly embarrassing because it exposes the dishonesty of Kavanaugh's pose as an impartial judge. But Democrats are also dropping hints that there are more serious legal problems on the horizon.

On Wednesday, for instance, Sen. Patrick Leahy, D-Vt., suggested that he had evidence that Kavanaugh had not been truthful during a 2006 judicial confirmation hearing when he was asked whether he had worked on George W. Bush's warrantless surveillance program. At the time, Kavanaugh declared he had "learned of that program when there was a New York Times story" published in 2005. When Leahy asked him on Wednesday if he was still committed to that answer, Kavanaugh said yes.

Included in the Thursday leak, however, is a 2001 email in which Kavanaugh makes reference to the warrantless surveillance program, which at the time was still in its initial formation. As Ian Millhiser of ThinkProgress writes, that suggests Kavanaugh may have lied under oath in 2006.

And that's not the only leaked email that shows a major discrepancy between Kavanaugh's sworn testimony and his actual behavior in the Bush White House. The word "perjury" is starting to make its way into mainstream coverage of the confirmation hearing.

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One major question remains going into the Thursday evening: What does Kamala Harris have planned?

Late Wednesday, when almost everyone but journalists had tuned out of the hearings, the California Democrat tore into Kavanaugh with an unexpected line of questioning, asking him if he had been discussed special counsel Robert Mueller's investigation of the Trump campaign with anyone at the law firm of Marc Kasowitz, a longtime Trump lawyer. Kavanaugh deflected by acting as if Harris's question was too vague and general to provide a meaningful answers, but Harris dug in, pointing out that it was a direct and specific inquiry. After multiple rounds of deflection — including an occasion when Sen. Mike Lee, R-Utah, jumped in to play-act being Kavanaugh's defense attorney — Harris dropped the subject.

Few believe she intends to drop it for long. After Democrats spent Thursday leaking documents that on Wednesday they merely hinting that they had, it's hard not to wonder if Harris also has some important receipts to show. Her line of questioning was indeed specific, so much so that it seems likely she knows something specific. What that might be, how she knows it and whether she can prove it are all questions that remain open for now.

Democrats are coming hard at Kavanaugh and may, before this is all over, successfully demonstrate that this nominee has serious legal and ethical problems that should prevent him from being seated on the high court. But with a Republican majority in place — the same Republican majority that keeps shielding President Trump from facing serious investigation, much less serious consequences, for his numerous corruption scandals — it remains hard to imagine that Kavanaugh will be kept off the Supreme Court for long.

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Amanda Marcotte

Amanda Marcotte is a politics writer for Salon. Her new book, "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself," is out now. She's on Twitter @AmandaMarcotte

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