Republican Senator Chuck Grassley had just begun to politely railroad Brett Kavanaugh’s wildly unpopular Supreme Court nomination through the Judiciary Committee he chairs, when a woman’s steely voice, off camera, interrupted him.
“Mr. Chairman, I would like to be recognized to ask a question before we proceed.”
The camera eventually turned to the speaker, California Senator Kamala Harris.
“The committee received just last night—less than 15 hours ago—more than 42,000 pages of documents that we have not had a chance to read or review or analyze,” Harris told the chair. “We cannot possibly move forward.” Harris was referring to an unexpected wave of Kavanaugh documents released hours before the hearing, late Sunday night, by attorneys hired by the George W. Bush Presidential Library.
Grassley ignored her, so Amy Klobuchar continued. When Grassley ignored Klobuchar, Richard Blumenthal moved to adjourn the hearing. The cranky Iowa senator ignored him, too. “We are rushing through this process in a way that is unnecessary,” Cory Booker then implored. “I appeal to your sense of fairness and decency.”
Predictably, that appeal failed too. Grassley gave up on fairness and decency a long time ago, when he refused to hold a hearing on President Barack Obama’s Supreme Court nominee, Merrick Garland, keeping the seat warm for über-conservative Neil Gorsuch, who was confirmed last year, thus depriving our first black president of one of the most important decisions of his second term.
But Grassley was rattled. He let all of the Democrats get in early hits at both Kavanaugh—and at the sneaky GOP process in confirming him. Those hits stung. All hell broke loose from the audience: chanting and poster-waving from dozens of Kavanaugh opponents, followed by their noisy removal. One demand was repeated: “Cancel Brett Kavanaugh. Adjourn the hearing.”
Thus began the most consequential Supreme Court hearing of our lifetimes, on a morning when many glum progressives woke up afraid that Democrats didn’t have the spine to fight back—despite polls showing that Kavanaugh has less public support than any nominee in the last 30 years. “No nominee this unpopular has ever been confirmed,” Planned Parenthood Vice President Dawn Laguens told an early-morning conference call convened by women’s and civil-rights organizations. Ninety protesters, from groups organized by the Women’s March and the Center for Popular Democracy, would be arrested by the end of the hearing, Women’s March adviser Winnie Wong told me. (She and march leader Linda Sarsour were among the first arrested; they were released within hours, as others took their places.)
Buses packed with protesters descended on Washington Monday night. People were encouraged to dress in “business professional clothing” to have a better chance of getting into the hearing room. Thus did women who looked like nice Republican ladies, in summer shifts and business suits (along with a few men in ties), sit quietly for hours, then loudly interrupt the proceedings and get arrested.
A few minutes later, another unlikely audience member would do it all again. “I feel a lot better than I did 24 hours ago,” said Brian Fallon of Demand Justice, a progressive group formed in the wake of Kavanaugh’s nomination. “This can have a multiplier effect in terms of [Democratic] intensity.”
One early disappointment at the hearing was Senator Dianne Feinstein, the highest-ranking Democrat on the committee, who didn’t join Blumenthal’s push to adjourn. It wouldn’t have had the votes—all Republicans, including wannabe mavericks like Nebraska’s Ben Sasse and Arizona’s Jeff Flake, had caved to Grassley, at least in terms of process. But it was a marker many activists hoped to see from Democrats. Another liberal of Feinstein’s generation, Senator Pat Leahy, likewise didn’t join the clamor to adjourn, which many hoped would lead to Democrats’ walking out for the day. “There was obvious discomfort among more senior Democrats about waging that kind of fight,” one Senate aide told me.
Nevertheless, both Feinstein and Leahy pummeled Kavanaugh in their opening statements. When Grassley compared his own behavior to that of Leahy, back when Leahy shepherded Elena Kagan’s SCOTUS nomination as Senate Judiciary chair under Barack Obama, the senior Vermont senator blew up.
“That’s one heckuva paraphrase when you say I did the same thing with Elena Kagan,” Leahy erupted. “We had 99 percent [of her documents] made public, 12 days before the hearing.” By contrast, the Senate has only 7 percent of Kavanaugh’s, Leahy observed, and only 4 percent of them are public.
“What is being done here is unprecedented. What are we trying to hide? Why not have it open like all others?” the longest-serving senator on Judiciary asked. Leahy observed that the only prior invocation of executive privilege for a Supreme Court nominee came from Ronald Reagan, when he nominated William Rehnquist. “And Republicans and Democrats went to him and said ‘Don’t do that!’ and he said, ‘OK, you’re right’…and he released the documents.”
Nothing like that has happened so far under Trump—or under Grassley.
Grassley was overmatched by his Democratic opponents, factually and temperamentally. But he had the gavel, and ultimately he had control. CNN kept Kavanaugh on split screen throughout the ruckus, and we got to watch him try to keep his face controlled. He mostly succeeded, smiling through the first 20 minutes of interruption, after that occasionally cracking into angst.
And so the hearing proceeded, with 10-minute opening statements laying out the stakes. Shockingly, Grassley admitted Republicans are trying to get back for the allegedly “shameful treatment of Robert Bork,” the Nixon solicitor general who carried out the Saturday Night Massacre but was rejected as Reagan’s Supreme Court nominee 31 years ago. Sasse mocked anti-Kavanaugh activists for “screaming protests saying women are going to die,” asking, “Where is the hysteria coming from?” (Note to Sasse: It’s not wise to accuse women who are defending their rights of hysteria.)
Another supposed anti-Trumper, Jeff Flake, joked around with Kavanaugh about their common love of sports before acknowledging the common problem facing everyone: Kavanaugh’s appointment by a lawless president, who on Monday tweeted his opposition to the indictments of two Republican supporters, Congressmen Chris Collins and Duncan Hunter, as they represented “two easy wins” in November.
Though Flake expressed concern about that tweet, he didn’t join Democrats’ calls to delay the hearing, or to demand more documents from Kavanaugh’s voluminous employment files. When his turn came around, Blumenthal appealed to Kavanaugh himself to ask for a delay, saying otherwise there would be a “taint” or an “asterisk” next to his name. Senator Dick Durbin had made the same request earlier; Kavanaugh did not agree.
The nominee’s testimony weakly recapped the high points of his July introduction: tributes to his adorable daughters, his wife and parents, and the black and female clerks he’s hired, along with anodyne promises to follow the law and be a part of the Supreme Court “team.” Sadly, there are two teams on the court right now, and Kavanaugh’s record—on women’s rights, voting rights, and labor rights—leaves no doubt about which one he’ll join.
As feisty as all the Senate Democrats were on Tuesday, it must be said: Harris drew first blood, and among folks I talked to there was uncertainty as to whether she was the only Democrat to volunteer to interrupt Grassley, or just the first. Either way, she deserves credit. As important as the spine of Democratic senators was, the most devastating moment came when gun-safety advocate Fred Guttenberg, whose daughter, Jaime, was murdered at Parkland High School last February, tried to talk to Kavanaugh. The nominee refused to shake his hand and walked away.
Meanwhile, excerpts from Bob Woodward’s new book, Fear: Trump in the White House, interrupted the hearing coverage all day. We learned that Chief of Staff John Kelly called his boss an “idiot,” Defense Secretary James Mattis ignored Trump’s orders to kill Syrian President Bashir al Assad, and, onetime National Economic Adviser Gary Cohn “stole a letter off Trump’s desk” that would have withdrawn the United States from a trade agreement with South Korea. The revelations ought to give senators pause, especially given Kavanaugh’s expansive views of executive power.
The morning of anti-Kavanaugh protest pushed the whole process back by at least half a day—not enough to move it past the midterms, of course, when a blue wave might scare Republicans into doing their jobs of oversight. But who knows what the next week will hold? Winnie Wong promised that protesters are staying, texting me late Tuesday night from Senate minority leader Chuck Schumer’s office, where she said Women’s March organizers were eating Chinese food and plotting their next steps. Yes, you read that right.
“Until today, Democrats have really seemed cowed, not comfortable throwing themselves into opposition,” says Fallon. “This could get contagious if the Democrats keep it up.”