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US Supreme Court nominee Brett Kavanaugh testifies in Washington
Reuters/Alex Wroblewski
Another day, another drama.
REBELS WITH A CLAUSE

All the ways Democrats found to say “We are here under protest”

By Ephrat Livni

The final day of US Supreme Court nominee Brett Kavanaugh’s confirmation hearings began with a bang.

Democratic senators started the judiciary committee session today (Sept. 7) with an eloquent rebellion decrying that too many documents deemed “committee confidential” can’t be discussed in open session. Their presence at the hearings doesn’t indicate consent to a “sham” process, they said.

“The absurdity of the process”

Cory Booker of New Jersey—who has  vowed to release documents despite the confidential designation—began by complaining to committee chairman Charles Grassley, a Republican, about “the absurdity of the process.” Booker bemoaned the fact that committee members have to identify documents they want released by number and name, and “so long as it’s a reasonable request” Grassley will send it for review to Bill Burke, a private attorney designated by Donald Trump for the process. Senators have little time to review the documents and no chance to follow up on new discoveries.

“A sham”

“This process is a bit of a sham,” Booker contended. He reiterated his willingness to disobey the confidentiality rules and risk explusion. “No senate rule accounts for Bill Burke’s partisan review of documents..I understand what civil disobedience is and I understand the consequences…I am going to release the email and I understand that comes with potential ousting from the Senate…I’m releasing it to expose that emails being withheld from the public have nothing to do with national security.”

Grassley was unmoved by the threat, asking only, “How many times are you going to tell us that?”

The chairman was unhappy about the word “sham” though and told Booker, “We don’t go to Burke. We go to the Department of Justice.” He noted that DOJ civil servants “work late into the night” to accommodate the document requests, that they are apolitical, and should be respected.

Texas Republican John Cornyn didn’t call Booker out by name in noting that one of his colleagues was displaying “conduct unbecoming to a senator.” Releasing documents deemed confidential, he said, “is irresponsible and outrageous.”

“It’s as if the committee unilaterally repealed the law of gravity”

At this, the Democrats became animated, eager to align themselves with Booker.

“Lest silence imply consent, speaking for myself, I want to make it absolutely clear that I do not accept the process, ” Sheldon Whitehouse of Rhode Island said. “I do not accept its legitimacy or validity…I’ve not made a big fight…but it’s as if the committee unilaterally repealed the law of gravity…I am not willing to concede that there is any legitimacy to this entire committee confidential process.”

“The process has broken down”

Democrat Richard Blumenthal of Connecticut said the hearings seemed to echo the chaos in a nation where “the process has broken down.” Blumenthal argued that there are no rules on committee confidentiality mutually agreed upon by both Democrats and Republicans—and no need to conceal Kavanaugh’s documents: “All these documents belong to the people of the United States…so shame on my colleagues if they conceal them now and deny us the benefit of questioning this nominee who comes before us for the last time today.”

He clarified his position, “We’re making this protest and are here under protest.”

Republican Mike Lee of Utah said he and Booker spoke the night before and agreed upon a document release, which is proof that process is not “rigged.” Lee said, on the contrary, it’s not fair to Kavanaugh if he doesn’t have access to the documents he’s being questioned about.

“This is without precedent”

California Senator Dianne Feinstein, who has been cordial to Kavanaugh but vocal in her opposition, was having none of that: “It’s my understanding that by agreement with private lawyer Bill Burke, the chairman has designated 190,000 pages committee confidential.” Previously, the committee has made material confidential only through bipartisan agreement, she argued. Feinstein pointed out that only seven percent of Kavanaugh’s record has been released in total and only four percent has been made public, compared to 99% of Elena Kagan’s record when she was under consideration for the bench as a nominee of Barack Obama.

“This is without precedent,” Feinstein contended. “I do think we have a problem and for the future we oughta settle the problem with agreement between the two sides…the fact is we should agree on who determines something is committee confidential and what the criteria are.”

“I don’t want my silence to indicate  consent”

Dick Durbin, the democratic senator from Illinois echoed Whitehouse, saying, “I don’t want my silence to indicate  consent…Lest you think we’re carping on a trifle here, we’re talking about whether the American people have the right to know.” He threw his lot in with Booker, saying, “Let’s jump into this pit together…if there’s going to be some retribution against the senator from New Jersey, count me in.” 

Hawaii Democrat Mazie Hirono interrupted Grassley on several occasions. “Count me in too,” she said. “I would defy anyone reading this document to be able to conclude this document should be deemed confidential in an way shape or form.”

“This hearing was ramrodded through”

Minnesota Democrat Amy Klobuchar then reiterated her opposition, saying the Democrat’s rebellion was happening only because “this hearing was ramrodded through.” She offered a solution: “You must somehow expedite review and we must have some kind of rule in place to get the documents out. We simply cannot hide these documents from the American public.”

All of that said, the rebellion isn’t likely to stop Kavanaugh’s confirmation. And the Democrats’ displays may just be a kind of political theater ahead of midterm elections in November. The Senate is controlled by Republicans, who hold a 51-49 margin as Jon Kyl fills John McCain’s vacant seat in Arizona, and all Kavanaugh needs is a simple majority.

Still, a handful of senators—Republican and Democrats—have not committed to a “yes” or “no” vote. So Democrats on the judiciary committee need to be dramatic, hammering home the illegitimacy of the confirmation process and the fact that much remains unknown about Kavanaugh to secure the few who are undecided. Or, at the very least, to win the hearts of their constituents with impressive displays of commitment to transparency and to American ideals.