It was kitchen-sink day at the Senate Judiciary Committee, and from the beginning Democrats seemed intent on demonstrating that they were going big. And if that meant some theater was necessary, so be it.
The third day of Supreme Court nominee Brett Kavanaugh’s confirmation hearings had barely begun when Sen. Cory Booker (D-NJ) declared that he was committing an act of “civil disobedience” by releasing documents that had been deemed “committee confidential” and, therefore, not available to the public.
The outspoken senator called it his “I am Spartacus” moment. But it quickly became clear, it was not.
Booker was quickly joined by Sen. Mazie Hirono (D-HI) and backed by several of his Democratic colleagues who have spent days railing against the GOP majority’s refusal to disclose more of Kavanaugh’s records, particularly from his time as a lawyer and staff secretary in the Bush White House. The goal from the beginning was to tarnish Kavanaugh’s credibility and, later on, set traps.
“I openly invite and accept the consequences of my team releasing that email right now,” Booker said in reference to a confidential document, adding that those consequences could include “potential ousting from the Senate.”
The senator later said he did not believe his action would constitute a violation of the Senate’s rules, but Senate Majority Whip John Cornyn (R-TX) read a rule that states Booker could “suffer expulsion from the body.”
Booker swiftly responded: “Bring it on.”
It takes two-thirds of the Senate for a member to be expelled, so it was highly unlikely that Booker would suffer that fate. The senator is widely viewed as a potential 2020 Democratic presidential contender, and Republicans quickly countered that Booker was simply trying to grab the spotlight in a made-for-TV moment.
“Running for president is no excuse for violating the rules of the Senate or of confidentiality of the documents that we are privy to,” Cornyn said. “This is no different from the senator deciding to release classified information that is deemed classified by the executive branch because you happen to disagree with the classification decision.”
But in a twist, the Republican side of the committee later disputed the idea that Booker was committing an act of “civil disobedience.” A spokesman for Cornyn said the documents were already cleared for public release at 4:00 a.m., and “the senators were notified of this” ahead of time. Moreover, Bill Burck, a lawyer for George W. Bush who handles presidential records, said “we had already told [Booker] he could use the documents publicly.”
(Cornyn acknowledged in a tweet Thursday afternoon that he was unaware of that change when he challenged Booker.)
Booker dodged questions of whether he knew about the public release when he spoke Thursday morning, and instead pointed out that he did, in fact, break committee rules on Wednesday night when he read from one of the documents.
“[W]e are continuing to release committee confidential documents in violation of a sham rule,” he said, quickly walking away from reporters.
The documents Booker released on Thursday included emails in which Kavanaugh discusses “racial profiling.” In one of the emails dated just a few months after the September 11 terrorist attacks, Kavanaugh writes that he “generally” favors “race-neutral” security measures. But he added that there is an “interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented.”
The dispute over documents underscored the unconventional—and indeed unprecedented—nature of Democrats’ attempts to derail Kavanaugh’s nomination. Republicans control all levers of power on Capitol Hill, giving Democrats few tools to push back substantively—especially when documents are released just a few hours before a hearing.
“There’s a lot of back and forth about what’s the process, what’s it mean, what’s the current status,” Sen. Chris Coons (D-DE) told reporters. “As an active member of the judiciary committee I felt that, to be well-prepared to question Judge Kavanaugh today, I needed to have clarity about what documents I was getting access to, what I could do or not do with those documents, before midnight last night.”
Hirono’s office also released an email Kavanaugh wrote in 2002 in which he says government programs intended for native Hawaiians “as a group [are] subject to scrutiny and of questionable validity under the Constitution.” A spokesman for Hirono told The Daily Beast that the senator had never asked for that document to be released publicly, and was not aware that it was already cleared to be published.
Those weren’t the only emails discussed during Thursday’s hearing.
As the proceedings were underway, The New York Times reported that Kavanaugh, when he served as a lawyer in the Bush White House, disputed the idea that Roe v. Wade is settled law.
In the email, Kavanaugh 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.”
Asked to address the email on Thursday morning, Kavanaugh explained to Sen. Dianne Feinstein (D-CA) that he was simply clarifying that not “all legal scholars” believed it was settled law since “Justice [William] Rehnquist and Justice [Antonin] Scalia were still on the court at that time.”
“I thought it was overstating something about legal scholars and I’m always concerned with accuracy, and I thought that was not quite an accurate description of all legal scholars because it referred to all,” he said.
Kavanaugh then repeated that Roe v. Wade is an “important precedent” that had been “reaffirmed many times” since it was decided in 1973.
Not all of the documents discussed on Thursday were leaked.
Sen. Patrick Leahy (D-VT) took the more traditional route to secure the release of six emails he said showed that Kavanaugh was not telling the truth about his role in the 2003 “memogate” scandal: he asked Grassley to release the documents.
By noon on Thursday, Leahy was circulating emails which he said showed that Kavanaugh received materials that two Republican staffers had stolen from the server used by Democrats on the judiciary committee—a direct contradiction of claims Kavanaugh made in Senate testimonies in 2004 and 2006.
In addition to the emails salvos, Democrats continued to cryptically suggest that Kavanaugh was improperly discussing the special counsel’s investigation with White House officials or representatives from the law firm that represents President Donald Trump.
That line of questioning began Wednesday night when Sen. Kamala Harris (D-CA) asked whether Kavanaugh had conservations with anyone at the law firm Kasowitz Benson Torres, appearing to momentarily throw Kavanaugh off.
But by Thursday, the firm released a statement saying none of its employees discussed the Robert Mueller investigation with Kavanaugh. And Kavanaugh himself was ready with an answer when Grassley asked him, point blank, if he has made any commitments to the White House on how he would decide on matters related to the investigation.
“No, I have not,” Kavanaugh said.