The Senate’s confirmation hearings for Supreme Court nominee Brett Kavanaugh opened with fireworks. A heated back-and-forth over transparency, Senate procedure, and Kavanaugh’s long paper trail spiraled into a partisan fight over how the confirmation process has been conducted.
The opening statements from all 21 lawmakers made it clear that Kavanaugh’s appointment to the Supreme Court is high-stakes for lawmakers on both sides of the aisle. For Democrats, Kavanaugh represents a decisive threat to abortion rights, health care protections for those with preexisting conditions, and constraints on executive power. To Republicans, Kavanaugh is a highly qualified, very solid conservative vote who will undoubtedly shift the Court to the right.
The contentious Tuesday session provided a preview of the main subjects senators plan to probe during marathon questioning sessions of the nominee later this week, and gave some insight on how lawmakers see the role of the Supreme Court.
The combative tone of day one set the stage for what’s likely to be a highly antagonistic few days — featuring not only tough questions for the nominee but skirmishes among lawmakers themselves.
Democrats framed Kavanaugh’s confirmation around transparency
From the beginning, Democrats argued that Republicans were changing the rules and procedure around Supreme Court nominations.
Sen. Richard Blumenthal (D-CT) took the lead by calling for the committee to adjourn until lawmakers had more time to review Kavanaugh’s record. The call came after a representative for the George W. Bush presidential library released 42,000 pages of documents on Monday night related to Kavanaugh’s time in the White House.
Democrats argued that gave them no time to review the documents before hearings began. “My motion to adjourn would raise this issue of executive privilege and whether it has been properly asserted for reasons that have been outlined by my colleagues,” Blumenthal said. “The question is, what is the administration afraid of showing the American people? What is it trying to hide?”
One by one, Democratic senators made clear that the rushed process to confirm Kavanaugh was unacceptable. Sen. Cory Booker (D-NJ) was among the most prominent voices pushing for Judiciary Committee Chair Sen. Chuck Grassley (R-IA) to pause proceedings. Booker said:
Mr. Chairman, we waited for more than a year with a vacancy on the Supreme Court under the direction of your leader in the United States Senate, and the republic survived. I think the treatment was shabby of Merrick Garland and President Obama’s nominee. The fact that we cannot take a few days or weeks to have a complete review of Judge Kavanaugh’s record is unfair to the American people, it is inconsistent to our responsibility under Article II, Section Two of the Constitution to advise and consent on to bring court nominees.
Sen. Kamala Harris (D-CA) echoed this argument, saying, “I’d like to restate my objection from earlier for the record, which is my motion to postpone this hearing. ... There’s some suggestion we should be speed readers and read 42,000 pages of documents in about 15 hours when it took the other side 57 days to review those same documents.”
Republicans were pushed to keep talking politics instead of Kavanaugh
To some degree, Democrats’ strategy to frame the conversation around process and procedure worked. The opening hours of the hearing were focused on politics much more so than Kavanaugh’s record.
Sen. Ted Cruz (R-TX), who famously endorsed Donald Trump’s presidential nomination because of the vacancy on the Supreme Court, went so far as to say the hearing was Democrats’ attempt to relitigate the 2016 election:
I believe this fight is nothing more and nothing less than an attempt by our Democratic colleagues to relitigate the 2016 presidential election. 2016 was a hard-fought election all around. It was the first presidential election in 60 years where Americans went to the polls with a vacant seat on the Supreme Court. One that the next president would fill. Americans knew who had been in that seat. ...
We know that every Democratic member of this committee will vote no. We don’t have to speculate. Every one publicly announced they’ll vote no. ... Most of the Democrats in the Senate have announced it in the full Senate. But everyone should understand, Judge Kavanaugh handed over more documents than any nominee, more than the last five combined, Republican and Democratic nominees. It’s not about documents. It’s not about qualifications. What it is about politics. It’s about Democratic senators trying to relitigate the 2016 election and working to begin to relitigate the 2020 election.
Sen. Mike Crapo (R-ID) levied similar claims in a dig at Democrats:
I think one point Senator Cruz made deserves repeating. Much of what we’ll hear today and through the remainder of this process is ultimately an effort to relitigate the last presidential election. In fact, we have just heard Judge Kavanaugh attacked and stated to be unqualified because he is a Trump nominee.
Other Trump nominees have also been attacked here today. The attack is on President Trump, not on their nominees, because of an unwillingness to accpet the outcome of the last presidential election.
And Sen. Lindsey Graham (R-SC) argued that Democrats were just as guilty of making political promises tied to Supreme Court nominations as Republicans are. “What a bastard Donald Trump is, until you hear about Hillary Clinton,” he said, citing numerous occasions when Clinton said she would pick judges who would uphold Roe. “This is the way we do politics.”
On policy, Democrats are driving home that Kavanaugh’s confirmation is high-stakes
Democrats’ arguments weren’t all about process. They also made sweeping claims about how Kavanaugh could alter policies addressing everything from existing worker protections to gun control, trying to highlight concrete examples of how his appointment could, they argued, put people at risk.
Sen. Sheldon Whitehouse (D-RI) contended that the Supreme Court — and specifically its conservative majority, which he dubbed the “Roberts Five” — have unequivocally advanced the interests of big business, and favored them over worker protections. He notes that Kavanaugh, with his business-friendly record, would only keep up this trend:
Every time a big Republican corporate or partisan interest is involved, the big Republican interest wins. Every time. Let me repeat. In 73 partisan decisions where there’s a big Republican interest at stake, the big Republican interest wins every damned time. Thus, the mad scramble of big Republican interest groups to protects a Roberts Five that will reliably give them wins, really big wins sometimes.
“Donald Trump selected a preapproved name to get a vote for his dangerous anti-worker, anti-consumer, pro-corporate and anti-environmental agenda,” Sen. Mazie Hirono (D-HI) said.
Sen. Dianne Feinstein (D-CA) suggested that Kavanaugh had already disrespected the precedent set by Roe v. Wade, in a recent decision on an undocumented teen’s ability to leave federal custody and obtain an abortion. She also argued that disregarding the precedent set by Roe had implications for a wide array of personal privacy cases.
“The impact of overturning Roe is much broader than a woman’s right to choose,” Feinstein said.
It is about protecting the most personal decisions we all make from government intrusion. Roe is one in a series of cases that upheld an individual’s right to decide who to marry. It is not the government’s right. Where to send your children to school, the government cannot get involved. The kind of medical care you can receive at the end of life, as well as whether and when to have a family. I deeply believe that all these cases serve as a bulwark of privacy rights that protect all Americans from overinvolvement of the government in their lives.
Harris highlighted her own experience as a member of only the second class of students to go to an integrated school in Berkeley, California — progress that she emphasizes took place only because of the Supreme Court’s landmark decision in Brown v. Board of Education, and progress that she highlights as integral to her life. “I likely would not have been elected district attorney of San Francisco or the attorney general of California, and I most certainly would not be sitting here as a member of the United States Senate,” she said.
Harris further detailed the personal impact of Supreme Court decisions: “For me, a Supreme Court seat is not only about academic issues of legal precedent or judicial philosophy. It is personal. When we talk about our nation’s highest court and the men and women who sit on it, we’re talking about the impact that one individual on that court can have, impact on people you’ll never meet and whose names you’ll never know.”
Republicans want people to separate Kavanaugh and the political stakes
Republicans, meanwhile, argued for separating Kavanaugh’s qualifications from the political stakes of his nomination.
Sen. Ben Sasse (R-NE) called drawing policy and politics into the debate “absurd,” reducing it to Democratic “drivel.” He directed his comments toward Kavanaugh:
The bad news first, Judge. Since your nomination in July, you have been accused of hating women, hating children, hating clean air, wanting dirty water. You have been declared an “existential threat to our nation.” Your alma mater praised your selection, wrote a letter saying “people will die if Brett Kavanaugh is confirmed.” This drivel is patently absurd. We’re going to hear more of it over the next few days. The good news is, it is absurd and the American people don’t believe any of it. ...
It’s predictable that every confirmation hearing now is going to be overblown politicized circus. It’s because we have accepted a new theory about how our three branches of government should work and in particular how the judiciary should work. ...
Because for the last century an increasing by the decade, more and more legislative authority is delegated to the executive branch every year. Both parties do it. The legislature is impotent. The legislature is weak. And most people here want their jobs more than they want to do legislative work. So they punt most of the work to the next branch. ... When we don’t do a lot of big, actual political debating here, we transfer it to the Supreme Court. And that’s why the Supreme Court is increasingly a substitute political battleground in America.
Trump had a big role in the hearing — as both Republican punching bag and Democratic boogeyman
Trump wasn’t present, of course, but he nonetheless played an important role in the first day of Kavanaugh’s confirmation hearings. To Democrats, the cloud of investigations, indictments and corruption allegations surrounding Trump and Trump’s inner circle only raise the stakes of confirming a judicial nominee — especially Kavanaugh, whose position on executive power is well documented.
“Not only is the country deeply divided politically, we also find ourselves with a president who faces his own serious problems,” Feinstein said in her opening statement. “Over a dozen Cabinet members and senior aides to President Trump have resigned, been fired, or failed their confirmation under clouds of corruption, scandal and suspicion. The president’s personal lawyer, campaign manager, deputy campaign manager, and several campaign advisers have been entangled by indictments, guilty pleas, and criminal convictions. It’s this backdrop that this nominee comes into.”
But for some Republicans, like Sen. Jeff Flake (R-AZ), a vocal Trump critic and staunch conservative, the president was the target of scrutiny and criticism:
Now, I know, and it has been brought up today, a lot of the concern on the other side of the aisle stems from the concern of an administration that doesn’t seem to understand and appreciate separation of powers and the rule of law. I have that concern as well. If you just look at what was said just yesterday by the president, I think it’s very concerning.
He said in a tweet: “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff......”
That is why a lot of people are concerned about this administration and why they want to ensure that our institutions hold — thus far, they have, gratefully. Jeff Sessions has resisted pressure from the president to punish his enemies and relieve pressure on his friends. And many of the questions you will get on the other side of the aisle and from me will be how you view that relationship.
Sasse commented similarly, praising Kavanaugh and condemning Trump.
“The comments from the White House yesterday tend to politicize the Department of Justice; they were wrong and should be condemned,” Sasse said. “My guess is Brett Kavanaugh would condemn them.”
Republicans like to say Kavanaugh is a nice guy. Sen. Chris Coons pushed back.
Republicans like to talk about Kavanaugh’s good character outside the courtroom, painting him as a family man that you’d be lucky to have as a friend or neighbor.
Democrat Sen. Chris Coons (D-DE) pushed back on this line of character-building in his opening statement:
As you know well, we went to the same law school. We clerked in the same courthouse in Wilmington, Delaware. I have known you and your reputation for nearly 30 years. And I know well you have a reputation as a good friend, good classmate, good roommate, good husband, and family man. That you have contributed to your community. I think we’ll hear late today you have been a great youth basketball coach.
Frankly, we’re not here to consider you as the president of our neighborhood civic association or even to review whether you have been a great youth basketball coach. We’re here to consider you for a lifetime appointment to United States Supreme Court. Where you will help shape the future of this country and have an impact on the lives of millions of Americans for literally decades to come. To make that decision to exercise our role, we have to look at your decision, statements, writings to understand how you might interpret our Constitution.
Coons was right on one front: Sens. Flake and Hatch did indeed cite Kavanaugh’s youth basketball coaching as a testament to his temperament and character.
“Judge Kavanaugh’s dedication and commitment as a basketball coach, I think, demonstrates and says a good deal about that character,” Flake said. “Congratulations to you and the blessed Bulldogs winning the city championship this year. You must be proud of your team.”