Democrats have made Brett Kavanaugh’s Senate confirmation hearing about process.
They were about the Senate’s rules — and who’s breaking them.
And according to James Wallner, a political scientist with conservative think tank R Street and a former Republican Senate aide, that’s a debate Republicans will likely lose.
This is not the debate Republicans wanted to have. Note: Kavanaugh hasn't been debated once. It's just the process, the documents. Democrats have framed this debate 100%.— James Wallner (@jiwallner) September 4, 2018
For months, Republicans have been pushing to get Kavanaugh confirmed to the Supreme Court before the 2018 midterm elections, to avoid risking the small-but-possible chance Republicans lose control of the Senate.
In the process, Democrats say the procedure, in which the Senate first reviews a nominee’s entire public record and then has the opportunity to question it, has been thrown out the window. As Vox explained, while the pace of Kavanaugh’s confirmation isn’t necessarily unprecedented, the timeline is. The Bush White House library released 42,000 pages of documents from Kavanaugh’s time in the White House Monday night, just hours before the start of Kavanaugh’s confirmation hearing Tuesday morning.
“For the record, that is a rate of 7000 pages per hour,” Sen. Sheldon Whitehouse (D-RI) quipped, balking at the notion that congressional staff would be able to thoroughly examine the documents in time for Tuesday’s hearing. “That is superhuman.”
The opening hours of Tuesday’s hearing involved a cacophony of Democratic lawmakers and activists urging to put the confirmation hearings on pause, calling the hurry and lack of transparency a disgrace. Republicans were put on the defensive, having to yet again explain why they are moving forward on one of the most consequential legislative decisions of a generation without giving lawmakers the time to fully review Kavanaugh’s record.
“In this instance I think it is a losing argument for Republicans,” Wallner told Vox. “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.”
Democrats are making Kavanaugh’s confirmation about the process
With a 51-person Republican Senate majority, Democrats know Kavanaugh’s path to the Supreme Court is close to guaranteed if Republicans stick together. With President Donald Trump’s first Supreme Court nominee Neil Gorsuch, Senate Republicans changed the rules on confirming Supreme Court nominees to only require a simple majority. In other words, Republicans don’t need Democratic votes to get Kavanaugh through the final step of the confirmation process.
But from the very beginning of the Judiciary Committee’s confirmation hearing on Kavanaugh’s nomination, Democrats made it clear they wouldn’t be passive actors. They’re saying Republicans are changing the rules again.
“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,” Sen. Cory Booker (D-NJ) told an increasingly frustrated Judiciary Chair Sen. Chuck Grassley (R-IA). “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 2 of the Constitution to advise and consent on ... court nominees.”
One by one, Democratic senators went down the line to identify how the Senate’s process had been skirted, from redacted and altered emails to confusion about the process during the hearing. Sen. Mazie Hirono (D-HI) said it was “out of order” that the Republican-controlled committee required lawmakers to “pre-clear” questions, documents, and videos they’d like to use during the hearing.
In his 44 years in the Senate, voting on 19 nominations to the Supreme Court, Sen. Patrick Leahy (D-VT) said he had never seen a process like Kavanaugh’s confirmation.
“I have been on this committee under Republican and Democratic leadership; I never thought the committee would sink to this,” Leahy said, directing his comments to Kavanaugh. “In fact, you should not be sitting in front of us today. You should be sitting in front of us only after we have completed a review of your record. Your vetting is less than 10 percent complete. In critical ways, our committee is abandoning its tradition of exhaustively vetting Supreme Court nominees.”
In turn, Republicans were put on the defense, forced to answer Democrats’ questions about process instead of talk about their nominee. Grassley, who insisted on continuing the hearings as planned, was pushed to argue that Republican staff had ample time to review documents, citing past Senate confirmation hearings.
Sen. Ted Cruz (R-TX), arguing against changing the process, laid out Democrats’ strategy more explicitly.
“I want to ask what this hearing is about and what this is not about,” Cruz said. “First, this hearing is not about the qualifications of the nominee. Judge Kavanaugh is by any objective measure unquestionably qualified for the Supreme Court. Everyone agrees he’s one of the most respected federal judges in the country.”
Cruz added: “There’s an old saying for trial lawyers: If you have the facts, pound the facts. If you have the law, pound the law. If you have neither, pound the table. We’re seeing a lot of table pounding this morning.”
The hearing was far from the coronation Republicans were hoping for.