A nominee for the United States Supreme Court, especially a relatively obscure nominee like Judge Brett Kavanaugh, will necessarily be seen as an extension of the president who placed his or her name in contention. But during the confirmation process, the nominee is defined by the way in which he or she responds to the reasonable and necessary demands of the US senators who will decide whether to endorse the president’s selection.
Unfortunately, since Donald Trump announced his choice on July 9, Kavanaugh has failed to distinguish himself as anything more than the president’s dutiful minion. The controversial former White House aide—who advocates for an extreme view of executive privilege that would put sitting presidents above the law—has made no effort to present himself as an independent nominee. Nor has he displayed baseline respect for a process that cannot function without transparency and timely responses to requests for documents.
By failing to stand up for himself and for an independent judiciary, by letting the Trump White House manage every aspect of his bid for a life term on the most powerful court in the land, Kavanaugh has reinforced concerns that he will be nothing more than a highly-placed advocate for the imperial presidency to which Trump assumes he is entitled.
But, now, Kavanaugh faces a reckoning—in the form of the confirmation process that began Tuesday on the most contentious note in the history of Supreme Court nominations. On a day when 70 Kavanaugh critics were arrested and removed from the Senate hearing room and other locations on Capitol Hill, a debate raged about the nominee’s furtiveness.
This is a mess of Kavanaugh’s making. He had a chance to position himself on the side of openness. Instead, he allowed the Trump White House to mismanage the advancement of his nomination by engaging in outrageous secrecy, partisan gamesmanship, and oblique strategies that have confused even the president’s Republican allies. So it was that, as Senate Judiciary Committee chairman Charles Grassley (R-IO) attempted to read the script that had been prepared for the first day of the committee’s consideration of Kavanaugh, the charade was exposed—and appropriately challenged.
As the confirmation hearing opened, Grassley faced an immediate inquiry from Senator Kamala Harris, a California Democrat who served as a local prosecutor and a state attorney general before her election to the Senate. Harris respectfully asked to be recognized to pose a question before the proceedings began.
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“The committee received just last night, less than 15 hours ago, 42,000 pages of documents that we have not had an opportunity to review or read or analyze,” she said, in reference to a Monday-evening document dump by the team that is promoting the Kavanaugh nomination.
Senate Democrats have been wrangling with the Trump administration over the president’s determination to withhold more than 100,000 pages of Kavanaugh’s records from the Bush White House. The last-minute release of the 42,000 pages of documents appeared to be an attempt to counter criticism of the secrecy that has surrounded this nomination. But, as Senate minority leader Charles Schumer (D-NY) has noted, the release of some but not all of the needed documents on the eve of the confirmation hearing only “underscores just how absurd this process is. Not a single senator will be able to review these records before tomorrow.”
This was the point that Harris tried to make to Grassley on Tuesday morning. “We cannot possibly move forward, Mr. Chairman, with this hearing,” she explained. “We have not been given the opportunity to have a meaningful hearing on this nominee.”
Grassley responded as a robotic automaton rather than the chairman of the key committee of a separate branch of government that is called upon to check and balance the executive branch and its nominees. The chairman interrupted Harris, even before she had raised her concerns, with a perfunctory declaration that her remarks were “out of order”—though they were specifically relevant to the day’s proceedings. Then he attempted to drown out her objections by reading a perfunctory welcoming statement.
Minnesota Senator Amy Klobuchar, a former district attorney for one of the most populous counties in the United States, echoed her Democratic colleague’s concerns. “Mr. Chairman,” she said, “we received 42,000 documents that we have not been able to review—last night!—and we believe this hearing should be postponed.”
Senator Richard Blumenthal, a Democrat who previously served as United States Attorney for the District of Connecticut and the attorney general of that state, was the next to speak.
“Mr. Chairman, if we cannot be recognized, I move to adjourn,” said Blumenthal, as spectators erupted into applause and cheering for the objection. “Mr. Chairman, we have been denied…real access to the documents we need to advise and consent, which turns this hearing into a charade and a mockery of our norms.”
“Well, OK,” said a shaken Grassley, who then returned to the script.
As the hearing progressed, so, too, did the friction over a troubling lack of transparency. Nothing said by Kavanaugh, or by elite “character witnesses” such as former Secretary of State Condoleezza Rice, former Bush administration US Trade Representative Rob Portman (now the junior senator from Ohio), and Lisa Blatt (a former clerk for Justice Ruth Bader Ginsburg who now works with the high-end corporate law firm Arnold and Porter), shook the sense that this nominee hopes to ascend to the high-court bench without ever really engaging with the process.
Indeed, parading the nominee’s colleagues from the Bush-Cheney team before the committee only reinforced the arguments of Kavanaugh critics such as Sara Ackerman of the Working Families Party, who complained Tuesday afternoon that, “Democratic senators have only received four percent of Kavanaugh’s documents from when he worked in George W. Bush’s administration.”
Advocates for the president’s nominee may try to suggest that Senate Democrats have been too aggressive in pressing their point about the failure of Kavanaugh and the Trump administration to share needed documents. But the Democrats have framed the arguments in terms of duties outlined in the Constitution. And public interest groups are echoing their concerns. “These are uncharted waters and the risk of undermining public trust in the judiciary is very real right now at this juncture in our nation’s history,” says Karen Hobert Flynn, the president of Common Cause. “The record is incomplete and the Senate does not yet have enough information to provide informed consent.”
Tough questions need to be asked. Bold demands for documents need to be made.
It is not the actions of the Democratic senators who ask those questions, and who make those demands, that are making this hearing so contentious.
It is Brett Kavanaugh who has disregarded and disrespected the confirmation process by allowing himself to be presented as nothing more than a judicial vassal for Donald Trump. Kavanaugh had ample opportunities to stand up for himself, to reject secrecy and advocate for transparency. He has chosen, instead, to embrace the chicanery of the Trump White House—stoking legitimate fears that Brett Kavanaugh would do the same the most sycophantic justice on an all-too-sycophantic Supreme Court.
