The first day of Judge Brett Kavanaugh’s Supreme Court confirmation hearing began with fireworks from Senate Democrats on the Senate Judiciary Committee and screeching protesters in the audience. Just as the chairman of the committee, Senator Grassley (R-Iowa), began to deliver his opening statement, Democratic California Senator Kamala Harris interrupted. The potential 2020 Democratic presidential contender declared, “We cannot possibly move forward.” Her Democrat colleagues on the Senate Judiciary Committee joined the fray in what appeared to be a pre-planned strategy to sabotage the proceedings, defying all norms of Senate decorum. They disgraced themselves but failed to stop the hearing.
Chairman Grassley patiently listened to the Democrats’ repeated recitations of their talking points amidst loud shrieks by hecklers. Several Democrats made motions to adjourn or delay the hearing on the spurious grounds that they have not had enough time to review documents pertaining to the days of Judge Kavanaugh’s service during former President George W. Bush ’s administration, including 42,000 pages released by lawyers for Mr. Bush the day before the commencement of the hearing. Democrats also complained about the decision to withhold from Senate Judiciary Committee review 101,921 pages of documents on the grounds they are protected by constitutional privilege and that others were produced for the committee’s use on a confidential basis. In making his own motions to adjourn, Senator Richard Blumenthal (D-Conn.) said that if the confirmation continued, “this process will be tainted and stained forever.”
Senator Grassley let the Democrats drone on for more than an hour while managing to prevent the confirmation hearing from turning into an exercise of what Texas Republican Senator John Cornyn feared could devolve into “mob rule.” Senator Grassley pointed out that over 400,000 pages of documents were produced, more than have been produced with respect to any prior Supreme Court nominee. More than 300 of Judge Kavanaugh’s opinions and law review articles have also been available for senators to peruse and use in evaluating Judge Kavanaugh’s legal reasoning and perspective on many issues. Chairman Grassley then firmly denied the Democrats’ motions for delay or adjournment of the hearing despite their insistent demands. “We have said for a long period of time that we were going to proceed on this very day and I think we ought to give the American people the opportunity to hear whether judge Kavanaugh should be on the Supreme Court or not,” Chairman Grassley said.
Once the normal hearing session got underway, the members of the Senate Judiciary Committee proceeded to deliver their opening statements. In his prepared remarks, Senator Grassley said, “We are here this week to hear from Brett Kavanaugh, to hear about his exceptional qualifications, his record of dedication to the rule of law, and his demonstrated independence and his appreciation of the importance of the separation of powers.” Judge Kavanaugh is “the kind of judge Americans want on the Supreme Court,” he added, describing his qualifications, experience and his judicial philosophy based on respect for the rule of law and the notion that “the role of the judge is to apply the law as written.” Senator Grassley also defended the fairness and transparency of the confirmation process, taking Democrats to task for trying “tactic after tactic to delay and obstruct” Judge Kavanaugh’s confirmation.
Senator Grassley’s Republican colleagues largely echoed Senator Grassley’s sentiments, bestowing lavish praise on Judge Kavanaugh for his judicial record and criticizing the Democrats’ obstructionist tactics. Senator Orrin Hatch (R-Utah), for example, said that Democrats were “turning the volume up to 11” and trying to portray Judge Kavanaugh as the “four horseman of the apocalypse.” Addressing Judge Kavanaugh, who sat stone-faced during the back-and-forth amongst the senators, Senator Hatch said, “I’m sorry you’re going to have to go through some of this nonsense that’s coming your way.”
Senator Lindsey Graham, (R-S.C.) called Tuesday’s session the “hypocrisy hearing” and lectured Democrats that elections have consequences, a message that former President Obama emphasized at the outset of his presidency. ”If you want to pick judges from your way of thinking you better win an election,” Senator Graham said.
Senator Ben Sasse (R-Neb.) said the attacks on Judge Kavanaugh are “patently absurd,” and assured the judge, as he was silently absorbing all the Democrats’ barbs, that the “deranged comments actually don’t have anything to do with you.” Senator Sasse observed that the confirmation process has become too politicized, reflecting the fact that Congress has too often shirked its legislative responsibilities and expected the judiciary to resolve political issues. “We look for nine justices to try to right the wrongs from other places in the process,” he said. Senator John Kennedy (R-La.) agreed with Senator Sasse on the proper role of judges in interpreting the law as written, not as they think it should be. “I’m not looking for a hater, what I am looking for is someone who is whip smart,” he quipped.
California Senator Dianne Feinstein, the Democrat ranking member of the committee, complained in her opening statement about the lack of time and opportunity to review relevant documents from Judge Kavanaugh’s days serving in the George W. Bush White House. ”It’s not to create a disruption,” she said. “It’s not to make this a very bad process. It is to say, ‘Majority, give us the time to do our work so that we can have a positive and comprehensive hearing on the man who may well be the deciding vote for many of Americans’ futures.’”
Senator Feinstein then rejected as inadequate Judge Kavanaugh’s quoted statement that Roe v. Wade, establishing a woman’s right to abortion as a constitutional right, is “settled law.” She said that the real question is whether Judge Kavanaugh believes it “is correct law.” Senator Feinstein also pointed to other fundamental issues of concern where Judge Kavanaugh, if confirmed, could represent the “pivotal” vote. For example, she claimed that Judge Kavanaugh is “far outside the mainstream” with respect to his views on the Second Amendment’s guarantee of the right to keep and bear arms. She said her “worry” overall is “that it is so important to preserve a multi-ethnic, multi-religious, multi-economic a court that really serves the people and really serves this great democracy.”
Senator Dick Durbin (D-Illinois) incredibly defended the incessant heckling from protesters in the audience as evidence of America’s open society. “What we’ve heard is the noise of democracy. This is what happens in a free country when people can stand up and speak,” he said. “It is not mob rule.” With his defense of repeated disruptions of the Senate’s deliberations, attempting to deny other members of the public the ability to hear the proceedings of their elected representatives, Senator Durbin has aligned himself with tactics used by radicals to prevent speech they dislike at universities and other forums.
Senator Durbin went on to accuse Judge Kavanaugh of misrepresenting his role in connection with advice in the George W. Bush White House on detention and alleged torture during his testimony for confirmation to the D.C. Circuit Court of Appeals. He questioned Judge Kavanaugh’s views on the scope of executive power, which he claimed far exceeded the fundamental principle of separation of powers. Senator Durbin questioned why Judge Kavanaugh’s supporters appeared to be hiding documents that could shed light on the judge’s entire career in public service. He concluded his opening statement by calling upon Judge Kavanaugh to ask the Senate Judiciary Committee to “suspend” until all of his documents are publicly released.
Senator Patrick Leahy (D-Vermont) began his remarks by questioning President Trump’s motives in nominating Judge Kavanaugh in the first place. He said the president was no doubt “intrigued” by Judge Kavanaugh’s “expansive view of executive power — and executive immunity.” Addressing Judge Kavanaugh, Senator Leahy referred to what he characterized as the judge’s “unorthodox position that presidents should not be burdened with a criminal or civil investigation while in office.” He added, “I find it difficult to imagine that your views on this subject escaped the attention of President Trump, who seems increasingly fixated on his ballooning legal jeopardy.”
As to the confirmation hearing itself, Senator Leahy said it was “not only shameful, it’s a sham.” He claimed that over his 44 year Senate career the Kavanaugh confirmation hearing is the “most incomplete, most partisan…for any supreme court nominee that I’ve ever seen and I’ve seen more of those than anyone serving in the senate today.” While complaining like his Democrat colleagues about allegedly unprecedented gaps in document production, Senator Leahy was not at all disturbed when the Obama administration produced no documents from Justice Kagan’s years in the Solicitor General’s office that were far more relevant than a staff secretary’s documents.
Senators Harris, Blumenthal, Chris Coons of Delaware, Amy Klobuchar of Minnesota and Corey Booker of New Jersey were among other Democrats trying to paint Judge Kavanaugh as too beholden to President Trump, who they intimated may be looking for protection from legal jeopardy in return for selecting the judge for the Supreme Court. “I am concerned your loyalty will be to the president who appointed you and not to the Constitution,” Senator Harris said. Senator Klobluchar was even more direct. She said that “the president has handpicked a nominee to court with the most expansive view of presidential power possible. A nominee who has actually written that the president on his own can declare laws unconstitutional.”
Finally, it was Judge Kavanaugh’s turn to deliver his opening remarks to the Senate Judiciary Committee. “The Supreme Court must never, never be seen as a partisan institution,” he said – words that have too often fallen on deaf ears. He pledged to be a “team player” and a “pro-law judge” if he is confirmed. “A good judge must be an umpire – a neutral and impartial arbiter who favors no litigant or policy,” Judge Kavanaugh said. “I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge.” He spoke eloquently of his reverence for the Constitution. “If confirmed to the Supreme Court, I will keep an open mind in every case,” Judge Kavanaugh said. “I will do equal right to the poor and to the rich. I will always strive to preserve the Constitution of the United States and the American Rule of Law.” There is nothing in Judge Kavanaugh’s many opinions during his 12 years on the D.C. Circuit Court of Appeals to indicate that Judge Kavanaugh would do anything less as a Supreme Court justice.
The confirmation hearing was adjourned until Wednesday when the questioning of Judge Kavanaugh will begin. Chairman Grassley said the committee will vote on Judge Kavanaugh’s nomination next week on Sept. 13th. The Democrats disgraced themselves on the first day of the hearing. They encouraged the forces in favor of mob rule and disruption of orderly proceedings. Their questioning is likely to follow the same path.