The Fights Democrats Will Pick During the Kavanaugh Hearings

This is Democrats’ last chance to make a scene. What will they do?

Dianne Feinstein and Kamala Harris walk side by side as they arrive at the Capitol.
Democratic Sens. Dianne Feinstein and Kamala Harris, pictured at the Capitol in 2017, will get a chance to grill Kavanaugh on Tuesday.
Bill Clark/CQ Roll Call

Framing—the act of constructing a way of viewing an issue—is a fascinating political skill. And in the days leading up to Brett Kavanaugh’s confirmation hearings, I couldn’t help but get a kick out of the disparate ways Republicans and Democrats were framing their answers to the same question: How many pages of Kavanaugh’s records from his time in the George W. Bush White House have been released?

Democrats responded with a percentage: Four percent of the available Kavanaugh records have been made public. Only 4 percent! Republicans, meanwhile, emphasized the astounding number of pages floating around out there: 440,500 of them, Judiciary Committee Chairman Chuck Grassley’s team declared proudly on Friday. Wowza! That’s, like, thousands of books, or hundreds of copies of the Affordable Care Act. Or, as they put it, it’s “more than the combined volume of similar material for the last five nominees confirmed to the Supreme Court.”

This tedious, two-month debate about “paper” has, on its surface, been about what level of transparency is “fair” ahead of a lifetime appointment that would shift the American judiciary a degree to the right. So it’s worth reiterating, as Kavanaugh’s confirmation hearings begin, that “fairness” has nothing to do with the documents fight, and it will have nothing to do with the confirmation hearings. It has nothing to do with the whole project here. Republicans want Kavanaugh confirmed because he will support their policy preferences; Democrats want him stopped because he will strike theirs down. Republicans would be fine with zero documents released to the public but felt they had to throw something out there; Democrats want the silver bullet that so far has escaped them. The confirmation hearings that begin on Tuesday will not be a good-faith bipartisan examination of Brett Kavanaugh. They will be Democrats’ last chance to make a scene, with Republicans functioning as a defensive line.

So, then, what sort of scene will Democrats try to make?

Democrats have been emphasizing three main areas of attack against Kavanaugh’s record, all of which appeal to the base: access to abortion, of which Kavanaugh’s not a great fan; protection for those with pre-existing conditions, as another legal threat to Obamacare begins its way through the legal system; and Kavanaugh’s expansive views of executive power. On all three issues, Kavanaugh has tried to tell the handful of distantly swayable Republican and Democratic senators with whom he’s met what they’d like to hear. Democrats believe that his lengthy trail of writings and speeches, such as his praise of the dissent in Roe v. Wade, will make it difficult for him to get away with such vague postures as declaring Roe “settled law.”

Expect to hear the most you’ve heard about SeaWorld since you visited it as a child.
Just as Democrats focused on the “frozen trucker” case during Justice Neil Gorsuch’s confirmation hearings to show his pro-business, anti-little-guy leanings, Democrats will highlight how Kavanaugh dissented from an opinion finding that SeaWorld had violated workplace safety standards when an orca named Tilikum attacked and killed one of its trainees during a performance. “When should we as a society paternalistically decide that the risk of significant physical injury is simply too great even for eager and willing participants?” Kavanaugh, unimpressed, wrote. The trainer should’ve known that whale meant business when she took the gig.

Democrats will also press Kavanaugh on his unfriendly posture toward Chevron deference—the principle that courts should defer to an agency’s interpretation of an ambiguous statute—and what that could mean for government agencies’ ability to write rules and regulations not explicitly outlined in a statute. A limitation of Chevron could sharply narrow the ability of the government to write new regulations—and make life harder for the next Democratic president.

With a new legal challenge to affirmative action, now supported by the administration, making its way to the legal system, it’s quite possible that Kavanaugh’s succession of Anthony Kennedy could spell the end of affirmative action. Democrats will definitely spend time on that. Sen. Dianne Feinstein, the committee’s ranking member and the strongest gun control advocate in the Senate, will challenge Kavanaugh on his expansive view of the Second Amendment, and Sens. Dick Durbin and Pat Leahy, who both served on the Judiciary Committee during Kavanaugh’s 2006 confirmation hearing for appellate judge, will revisit whether Kavanaugh misled or lied to them about his involvement in the Bush-era debate over the legal treatment of detainees. And without Al Franken around to get worked up and inspire a thousand blog posts to bloom, expect Cory Booker and Kamala Harris to take up the mantle of viral outrage (that can be used in their presidential campaigns).

Even with all of these rich policy areas, though, the procedural issue of limited access to documents still seems to be at the forefront of Democrats’ minds. Recognizing the slim odds they have of stopping Kavanaugh, they’ve worked to label the entire process as a corrupt power grab.

Of the 430,000 documents that George W. Bush’s review team has submitted to the committee, 267,000, as of Friday, had been made available for public consumption while the others remained committee-confidential. (President Trump claimed executive privilege over another roughly 100,000, in what Senate Minority Leader Chuck Schumer, bless his heart, dubbed the “Friday night document massacre.”) One of the final stages of the document drama heading into the hearing, then, has been whether Democratic senators could refer to committee-confidential documents in an open hearing. Grassley, in a letter to committee members on Aug. 22, gave senators until Aug. 28 to flag which confidential documents they might want to use so that his staff could ask Presidents Donald Trump and George W. Bush to waive the remaining confidentiality restrictions on them. According to Grassley spokesman Taylor Foy, only one senator took them up on the offer. But Democrats had a reasonable excuse for rejecting it: They didn’t want to tip off Grassley, and thus Kavanaugh, to their lines of inquiry ahead of the hearing.

I can’t think of a more appropriately slapstick escalation of the documents saga than this. In a process during which many members of each side superficially pretend to maintain an open mind about a consequential nominee’s acumen and ability to apply the law, we enter the confirmation hearings with a dispute about whether the chairman is trying to rat out the minority party. Here, then, is all you need to know: Republicans have one more vote in the Senate than Democrats and can’t afford to lose this confirmation fight. Everything that we’ve seen, and will see, flows from that.