Heading into Brett Kavanaugh’s confirmation hearing Tuesday morning, my unofficial over/under on how many words Senate Judiciary Committee Chairman Chuck Grassley could get through before a protester interrupted him was 14.5. Sure enough, it was just before the 14th word when that interruption happened. Only it wasn’t a member of the public disrupting the proceedings (yet): It was California Sen. Kamala Harris. She, like all of the Democrats on the committee in the first hour of the hearing, had complaints about the process, such as the 42,000 documents sent for senators to review on a rushed basis the previous night.
After Harris spoke, New Jersey Sen. Cory Booker chimed in to complain about the same with his trademark, hammed-up flourishes. (“This is a violation of the values that we as a committee have striven for,” etc.) Then Connecticut Sen. Richard Blumenthal called for a vote to adjourn until senators had more time to review the records. Grassley, who tried to stay patient as Democrats executed their very foreseeable, scripted protest, denied the request as out-of-order several times. Sens. Mazie Hirono, Chris Coons, and Amy Klobuchar read their lines. And on down the roster.
When the actual protests got going, they were just as planned, but didn’t follow the Democratic committee members’ lead. The citizen protesters, many of them organized by the leaders of the Women’s March, didn’t scream about the hidden 100,000 or 42,000 or however many documents. They spoke about their reproductive rights. One women, whom Utah Sen. Orrin Hatch referred to as a “loudmouth,” said she would die without protections for those with pre-existing conditions. Others spoke up about gun violence, or how Kavanaugh was a tool of big business.
The contrast between what protesters were screaming about and what the Democrats behind the dais were focused on—the real-world impact of a Justice Kavanaugh versus the procedure surrounding his nomination—spoke to a persistent problem that seems destined to help Kavanaugh sail through: Democratic senators are too addicted to the document drama, and the unknown contained in those docs, to settle on a sustained line of attack on what they already know about Kavanaugh.
It would be surprising if a single Republican in the country was rattled by the Democrats’ document stunt. They’re more than happy to have Democrats focused on procedure. In fact, Tuesday’s opening session was when it settled in that Republicans probably had been baiting Democrats into emphasizing this line of opposition all along. Why else would you dump another 42,000 documents into their laps the night before the hearing, if not to send them into spasms of procedural complaint that distract from the imminent rightward shift of American jurisprudence? Why else would White House deputy press secretary Raj Shah walk through the press tables during the lunch break passing out a fact sheet noting that Democrats offered 80 “complaints about documents or records”?
Some Democrats seem to get the problem here. California Sen. Dianne Feinstein, the ranking member of the committee, began her opening statement not with gripes about document production but by laying out what’s at stake. She jumped right into Roe, insisting that the question isn’t whether it’s “settled law,” but whether “you believe that it’s correct law.”
“I was, in the ’50s and ’60s, active first as a student at Stanford, I saw what happened to young women who became pregnant,” she said. “So what women have won through Roe and a host of privacy cases to be able to control their own reproductive system, to have basic privacy rights, [is] really extraordinarily important to this side of the aisle, and I hope the other side of the aisle as well.” Feinstein followed up by speaking about Kavanaugh’s writings on the Second Amendment.
Rhode Island Sen. Sheldon Whitehouse might have had the strongest opening remarks in laying out the “sham” of “confirmation etiquette”—the pablum nominees offer about “calling balls and strikes” and respecting precedent in order to attain their seats, at which point they bust through whatever precedent they want in order to, say, benefit big business. “Kavanaugh knows the game,” Whitehouse said. “In the Bush White House, he coached judicial nominees to just tell senators that they will adhere to statutory text, that they have no ideological agenda. Fairy tales.”
When Democrats are laying out what’s at stake, it’s not performative. Even if it’s rehearsed, which it is, it’s about real things that they really care about. When they’re griping about the process, their words just don’t align with their actions. If the hearing is illegitimate or corrupt because they haven’t seen enough documents, why don’t they walk out of it? Why did Cory Booker, later in the hearing, take up minutes of his time apologizing to Grassley for any insulting language he may have used earlier—when he was insisting that Grassley was complicit in a power grab that violated the values of the country? Why apologize to him if that’s what you think he’s doing?
Process arguments this late in the game won’t convince Sens. Susan Collins and Lisa Murkowski to vote against Kavanaugh’s nomination. They’ve made clear that they’re fine with the level of document production. Democrats have all of the documents they’re ever going to have. If they haven’t found the silver bullet yet, it’s time to move on. Don’t wish in retrospect that you hadn’t made the stakes clear because you were too focused on the damning email that never materialized.
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