Commentary Law and Policy

When It Comes to the Kavanaugh Hearings, None of This Is Normal

Jessica Mason Pieklo

Last night, more than 42,000 pages of documents concerning Judge Brett Kavanaugh's record were dumped on Judiciary Committee members.

Tuesday marked the Senate Judiciary Committee’s first day of hearings on the nomination of U.S. Court of Appeals for the District of Columbia Circuit Judge Brett Kavanaugh to replace retired Supreme Court Justice Anthony Kennedy. It is very difficult to capture just what a surreal first day of hearings it was. Senate Democrats showed unified opposition to the nomination hearings continuing despite the lack of full disclosure of Kavanaugh’s record. Republicans, meanwhile, were fine pressing ahead with Kavanaugh’s confirmation, even though President Donald Trump’s personal attorney Michael Cohen identified Trump as an as-yet unindicted co-conspirator to a host of potential crimes. All in all, nothing about the opening to the Kavanaugh hearings was normal.

Here is some context for just how abnormal those proceedings are. Last night, Republicans and those in charge of the process for reviewing Kavanaugh’s record—like private attorney Bill Burck, who also happens to represent former Trump strategist Steve Bannon in the Russia probe—dumped over 42,000 pages of documents on Judiciary Committee members. The volume was so great that Sen. Sheldon Whitehouse (D-RI) estimated it would have required staffers to review 7,000 pages of documents per hour. Over 42,000 pages of documents. Dumped. The night before the hearing. That’s not normal. 

That dump alone is so out of the ordinary that Sen. Richard Blumenthal (D-CT) made a formal motion to suspend proceedings so that the members of the Judiciary Committee could have—oh, I don’t know, a couple days or so—to review the documents. Blumenthal’s motion was quickly seconded by his colleagues and should have been called to vote by Committee Chair Sen. Chuck Grassley (R-IA). Instead, Grassley claimed the rule under which Blumenthal made his motion didn’t apply to these proceedings and gaveled Democrats out of order. When asked by Blumenthal to cite the authority in the Senate rules for Grassley’s declaration, Grassley couldn’t. 

Changing the rules mid-hearing to ram through a nominee isn’t normal either. 

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Or at least it shouldn’t be. But then again, Senate Republicans showed their willingness to bend and flout regulations in order to wrest control of the federal judiciary when they refused to even meet with President Barack Obama’s Supreme Court nominee Merrick Garland and blocked his confirmation long enough to get Justice Neil Gorsuch confirmed to the Court instead. So in that sense, Tuesday’s start to the Kavanaugh hearings marks the natural next step in the Republicans’ devastatingly successful strategy to pack the federal courts.

Senate Democrats may not have the votes to block the Kavanaugh nomination, but on Tuesday, they at least showed a willingness to use whatever tools they could to try and slow its inevitability. That is, frankly, also not normal for Democrats and their handling of Trump judicial nominees. Had Grassley not steamrolled right over Senate rules of procedure, they would have been at least temporarily successful in those efforts.

Tuesday’s hearing closed with Kavanaugh offering his opening remarks. In them, he talked about his role as a youth basketball coach; noted his belief, shared with Chief Justice John Roberts, that judges are just umpires calling balls and strikes; and suggested that all senators needed for proof of his good judgment is the fact that his wife is from West Texas. After hours of protests and contentious exchanges, Kavanaugh’s remarks felt disingenuous and sounded flat—as though his only goal was to simply survive the hearing process. Kavanaugh’s remarks were not the words of a man interviewing for a spot on the highest court of the land. They were the words of a man who believes in his own inevitability. 

The Senate Judiciary Committee returns tomorrow with another full day of witnesses to testify both for and against the Kavanaugh nomination. If Tuesday’s proceedings are any indication, then we are set for another heated day. Does it matter, though, how contentious the hearings are if Democrats don’t have the ability to block a Kavanaugh nomination?

Like Sen. Mazie Hirono (D-HI) said during her opening remarks Tuesday, I think the Kavanaugh battle is one worth fighting, regardless of the outcome. And on Tuesday, it was nice to see the Senate Democrats agree on this point as well. 

For more on the Senate Judiciary Committee proceedings, you can read Jessica Mason Pieklo’s live-tweets here

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