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The Misleading Chaos of the Kavanaugh Hearing

Democrats didn't hold back on the Supreme Court nominee and his Republican defenders, but their end game is less assured.

Drew Angerer/Getty Images

The first day of a Supreme Court confirmation hearing is typically a staid affair. Senators from the president’s party read opening statements extolling the nominee’s virtues, while senators from the opposing party take the opportunity to air concerns about the nominee’s temperament and potential views on major social issues. Finally, the nominee gets to make opening remarks where he or she adopts a humble mien and professes fidelity to the Constitution and the independent judiciary.

Brett Kavanaugh’s first day didn’t go quite like that. Republican Senator Chuck Grassley had barely opened Tuesday’s hearing before Democratic colleagues interrupted him to criticize the handling of Kavanaugh’s government records. Connecticut Senator Richard Blumenthal then made a motion to adjourn the committee. It should have been an easy vote for Republicans to win, but two of their senators were absent, giving the Democrats a fleeting majority.

To stave off the motion, Grassley played for time. Activists took the opportunity to disrupt the hearing—70 would be arrested by day’s end—and Democrats took the opportunity to vent grievances about the Trump administration’s use of executive privilege to shield 100,000 pages of Kavanaugh’s White House records from release, the eleventh-hour release of another 42,000 pages on Monday night, the use of a George W. Bush Presidential Library lawyer with deep Republican ties to oversee the records process, and more. After an hour and fifteen minutes, Grassley ruled on dubious procedural grounds that the motion was out of order and the senators began their opening statements.

It was Kavanaugh’s confirmation process in a nutshell: a raw exercise in legislative and presidential power to serve partisan goals. Unless there’s a last-minute surprise, the D.C. Circuit Court of Appeals judge will almost certainly be confirmed by the Republican-led Senate to fill the seat of retiring Justice Anthony Kennedy. His confirmation will effectively cement a five-justice conservative majority on the high court for the next generation.

Democrats laid out a battle plan against him on four fronts, including a familiar line of questioning that every Supreme Court nominee faces: how they’ll rule on abortion rights, affirmative action, and other major social issues. Justice Neil Gorsuch escaped intense Democratic scrutiny on abortion rights in particular because he never handled a case that directly addressed it. Kavanaugh isn’t as fortunate.

California’s Dianne Feinstein raised concerns about what Kavanaugh’s dissent in Garza v. Hargan, a recent case in which the Trump administration tried to block an undocumented minor girl in federal custody, would mean for abortion rights after he is confirmed. Democrats have cited the case as evidence that Kavanaugh would overturn or curtail Roe v. Wade if he joins the court. “The impact of overturning Roe is much broader than a women’s right to choose,” Feinstein said. “It’s about protecting the most personal decisions we all make from government intrusion.”

Another key issue for Democrats is how Kavanaugh would handle one of the most immediate legal quandaries he’ll face: President Donald Trump. Over the past 20 years, Kavanaugh has sketched out an aggressively expansive view of presidential powers. He has questioned whether the Watergate tapes case that felled Richard Nixon was correctly decided and argued that Congress should immunize sitting presidents from criminal investigations and civil lawsuits.

Democratic senators seized on Kavanaugh’s record to question whether he would provide Trump with a reliable Supreme Court vote. “The president is trying as hard as he can to protect himself from the independent, impartial, and dogged investigation of his abuse of power, before the walls close in on him entirely,” Hawaii’s Mazie Hirono warned. “Because if there’s one thing we know about Donald Trump, it is that he is committed to self-preservation every minute, every hour, every day.” Illinois’s Dick Durbin put it more bluntly: “We need a direct answer from you: Is this president, or any president, above the law?”

The third area of Kavanaugh’s record where Democrats voiced the most concern is his history of partisan politics. He isn’t the first nominee with such a track record: South Carolina’s Lindsey Graham noted that Justice Stephen Breyer once worked for Ted Kennedy’s office and that Justice Ruth Bader Ginsburg had been a top lawyer in the American Civil Liberties Union. But Kavanaugh’s history is even more closely linked to the conservative political movement. He worked for independent counsel Ken Starr during the Clinton impeachment saga, participated in the Florida recount fights after the 2000 election, and spent nearly six years in George W. Bush’s White House. During Tuesday’s hearing, Durbin repeated his past description of Kavanaugh as the “Forrest Gump of Republican politics.”

Multiple Democratic senators used Tuesday’s hearing to criticize the insular process by which Kavanaugh became Trump’s nominee. “President Trump selected Brett Kavanaugh because of his fealty to the partisan political movement he has been a part of his entire professional life,” Hirono warned. “You’ve spent decades showing us what you believe,” Delaware’s Richard Blumenthal said. “Or, more accurately, you’ve spent decades showing [groups like the Federalist Society] what you believe.” He warned that Kavanaugh wasn’t so much a nominee as a candidate in a campaign for a “loyal soldier” on the high court.

Kavanaugh apparently anticipated this line of attack and tried to preempt it. “The Supreme Court must never be viewed as a partisan institution,” he told the committee in his opening remarks, which were prepared before the hearing but delivered at the day’s end. “The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms.”

The average person listening to Tuesday’s hearing could reasonably assume each side was talking about a completely different process. Republicans focused on the raw numbers by citing how many pages of Kavanaugh’s records had been made available, which exceeds those of past nominees. “This has been the most thorough Supreme Court confirmation process that I’ve ever taken part in,” remarked Utah’s Orrin Hatch, who is retiring from the Senate after more than 40 years.

Democrats focused on percentages, arguing that less of Kavanaugh’s overall record had been made public compared to any other recent Supreme Court nominee. “Any claim that this has been a thorough, transparent process is downright Orwellian,” said Patrick Leahy, a former Judiciary Committee chairman who took part in a fair share of confirmation hearings as well. “This is the most incomplete, most partisan, least transparent vetting for any Supreme Court nominee I have ever seen.”

The American public is similarly split on whether to elevate Kavanaugh to the nation’s highest court. Multiple polls over the past month show that Americans are unusually divided along partisan lines when it comes to Kavanaugh, to a degree not seen since Robert Bork’s failed confirmation vote in 1987. It’s unclear whether this can be attributed to Trump’s historic levels of unpopularity, the unusually high stakes that come with replacing swing justice Kennedy, or a combination of the two factors.

What’s more clear is that it likely won’t change the final outcome. While senators set the tone for the week ahead in Washington, Arizona Governor Doug Ducey announced that he would appoint former senator Jon Kyl, who has been working as Kavanaugh’s sherpa through the confirmation process, to fill the late John McCain’s vacant Senate seat. In order to block his confirmation, Democrats would need two Republican defections and unanimous opposition within their own party. It’s unlikely that one of those feats can be accomplished, let alone both of them.

Graham, who became an erstwhile defender of Trump over the past year, was the last senator to offer his opening statement on Tuesday. He summarized the Democrats’ dilemma with Kavanaugh better than anyone else. “You can’t lose the election and pick judges,” he told his colleagues. “If you want to pick judges, you better win.”