Sen. Cory Booker (D-NJ) threatened to release “committee confidential” emails from Supreme Court nominee Brett Kavanaugh regarding his views on racial diversity in a tense moment during the Thursday morning hearing.
Majority Whip John Cornyn (R-TX) said Booker could be expelled from the Senate for referencing and disclosing emails that only members of the committee had access to. “Running for president is no excuse for violating the rules of the Senate or the confidential documents we are privy to,” Cornyn said in a dig responding to this move.
The New Jersey senator responded, “Bring it.”
“All of us are ready to face that rule on the bogus designation of ‘committee confidential.’ Just because there is a Senate rule doesn’t mean it can be misapplied or misconstrued or misused,” Booker said. “We’re dealing here with a lifetime appointment. Nothing we do here is more serious than confirming a justice on the United States Supreme Court. Let the American people appreciate that we are here in the most solemn responsibility we have under the constitution. We need the full truth.”
Booker then tweeted the emails:
These are the 4 documents marked committee confidential that I brought up in my questioning of Supreme Court nominee Brett Kavanaugh last night --> https://t.co/2RZkY2FS9a— Cory Booker (@CoryBooker) September 6, 2018
Meanwhile, Senate Judiciary Committee Chair Chuck Grassley’s office called this entire conflict into question when his staff issued a statement explaining that the documents Booker dropped had already been made public earlier this morning, suggesting the entire back-and-forth had been for show.
“The senators were notified of this before speaking began this morning,” a statement from Grassley’s office said. “The documents are now published on the Judiciary Committee’s website.”
“Cory said this morning that he was releasing committee confidential documents, and that’s exactly what he’s done,” said Kristin Lynch, a spokesperson for Booker’s office, in response. “Last night, he was admonished by Republicans for breaking the rules when he read from committee confidential documents. Cory and Senate Democrats were able to shame the committee into agreeing to make last night’s documents publicly available, and Cory publicly released those documents as well as other committee confidential documents today.”
This exchange is part of a broader framing from Democrats about who has access to Kavanaugh’s extensive paper trail — in the midst of a hearing that has been defined by who gets access to Kavanaugh’s record.
The exchange over race that set this whole thing off, explained
Booker’s threat to release emails came the day after he questioned Kavanaugh about his views on race, during which the lawmaker quoted an email in which Kavanaugh described a policy to advance minority businesses as a “naked racial set-aside.”
In the email, Kavanaugh appeared to be discussing a Department of Transportation regulation that could be perceived as treating businesses differently on the basis of race. “The fundamental problem in this case is that these DOT regulations use a lot of legalisms and disguises to mask what in reality is a naked racial set-aside,” Kavanaugh wrote in the email. This message was one of several Booker cited on Wednesday to suggest that Kavanaugh does not favor policies for advancing diversity like race-conscious affirmative action.
After he was confronted with this statement, Kavanaugh seemed momentarily confused and asked to see the email — something Booker said he would share at a later time. Sen. Thom Tillis (R-NC) quickly chimed in and seemed to imply that Kavanaugh’s reaction suggested that Booker was mischaracterizing the email. Sen. Mike Lee (R-UT) then went on to reveal that Booker wasn’t misconstruing the message, but he noted that the New Jersey senator was quoting from an email that had been deemed “committee confidential.”
“I’m not the first colleague who has referenced committee-confidential emails,” Booker said. “This one email entitled ‘racial profiling,’ literally the email was entitled ‘racial profiling,’ that somehow was designated as something that the public couldn’t see. This wasn’t personal information. There’s no national security issue whatsoever.”
Much like the term “committee confidential” implies, any documents bearing this label can be reviewed by members of the Senate Judiciary Committee but cannot be released more broadly to the American public. It’s a term that picked up more traction on Thursday morning — with Democrats questioning why a major trove of documents was being labeled “committee confidential” and shielded from public view, even though the documents didn’t contain sensitive information related to issues like national security.
The designation itself is not uncommon — for intelligence hearings, for example, a fair share of documents that are classified can be labeled as “committee confidential.” What is uncommon is the way that Kavanaugh’s documents have been vetted and designated. The National Archives would usually lead this process, but because their approach would purportedly take too long, Bill Burck, a private attorney for former President George W. Bush, has been running an expedited parallel process. It’s a move that Democrats have repeatedly pointed out as completely unprecedented.
“By what right, by what authority can Mr. Burck designate a document as ‘committee confidential?’” said Sen. Dick Durbin (D-IL). “He has the consent of the Republican committee.” The exceedingly partisan nature of this process has infuriated Democrats, who have said that it offers them no insight into how things are done and chips away at established methods for doing things.
“There is no process for [determining] ‘committee confidential,’” said Sen. Dianne Feinstein (D-CA). “It used to be that both sides had to concur. Now, this is just simply not the case. Committee-confidential becomes kind of a crock.”
“For all I know, some Republican staffer could have made this decision. It becomes a way for the majority to put all information through a strainer,” she said.
This is a bigger fight about the process Republicans are using to confirm their Supreme Court pick
From the beginning, Democrats have objected to the timeline Republicans have used to try to usher Kavanaugh onto the Supreme Court before midterm elections — without fully releasing documents related to Kavanaugh’s time in the Bush White House.
The conflict has been simmering since Kavanaugh was nominated. He served as both White House counsel and staff secretary during the Bush administration. As staff secretary — a time that he’s characterized as a formative experience for his judicial practice — it’s possible that he engaged with millions of documents, which Democrats have been interested in mining.
His extensive document trail is one of the major reasons Senate Majority Leader Mitch McConnell warned before his nomination that Kavanaugh could take longer to confirm. “The number of pages is said to run into the millions, which Mr. McConnell fears could hand Senate Democrats an opportunity to delay the confirmation vote until after the new session of the court begins in October, with the midterm elections looming the next month,” the New York Times’s Maggie Haberman and Jonathan Martin reported in early July.
But once Kavanaugh was nominated, Senate Republicans changed their tune. In the interest of expediting his confirmation process, they have decided to skip a great number of documents usually released as a matter of transparency, including the ones from his time as staff secretary.
“I think there’s a very real substantive fight happening here, and it’s very much a break from precedent and a break from norms and a break with the law. The law clearly states that the White House’s records are a matter of public record and belong to the people,” says Jake Faleschini of the Center for American Progress. “The people have a right to know what happened in the Bush White House, when Kavanaugh was one of the most important people who was there.”
Senate Democrats submitted a Freedom of Information Act request to gain access to them last month, but such requests are often slow.
Republicans argued that the documents Democrats wanted from the archives — especially the ones relating to Kavanaugh’s time as White House staff secretary — were not relevant for his consideration for the Supreme Court. Additionally, they’ve noted that they have obtained a record number of documents related to Kavanaugh’s record, compared to those obtained during prior nomination processes.
Then, Republicans released 42,000 pages of emails the night before Kavanaugh’s hearings began. “For the record, that is a rate of 7,000 pages per hour,” Sen. Sheldon Whitehouse (D-RI) pointed out at the beginning of the hearing, calling such a feat “superhuman.”
How this came to a head with Booker
Booker, who is widely rumored to be eyeing a presidential run in 2020, certainly made a show of his point on Thursday, but Democrats genuinely feel that Republicans have diverted from the norms usually afforded to the process of confirming a Supreme Court justice. The squabble on Thursday is a continuation of an ongoing conflict over proper process and the way Kavanaugh’s confirmation has been conducted — with Democrats arguing that Republican efforts have shifted existing norms.
“Republicans aren’t making a case for what a qualified Supreme Court justice should look like. They are instead defending their decision to block Democrats from getting access to the documents they want,” James Wallner, a political scientist for the conservative think tank R Street, told Vox’s Tara Golshan.
Booker’s Democratic colleagues backed his efforts and argued that the entire review of Kavanaugh’s documents has been partisan and mishandled, using terms like “sham” and “rigged.”
Senate Minority Leader Chuck Schumer threw his backing behind these protests and the ability of Democratic Senators to publish these “committee confidential” emails.
I stand w/ Judiciary Committee Democrats who are well within their rights to release these very important documents that a former Kavanaugh deputy designed as “committee confidential.”— Chuck Schumer (@SenSchumer) September 6, 2018
The American ppl deserve to know the truth about Judge Kavanaugh’s record. #WhatAreTheyHiding?
Unfortunately, it’s not clear that any of this will make a difference. Republicans have a 51-vote majority, which is all they need to confirm Kavanaugh if they stay united.