Until Tuesday when Democratic members of the Senate Judiciary Committee started to raise a rumpus over the concealment and selective disclosure of documents orchestrated by Republicans, Chairman Sen. Charles E. Grassley (R-Iowa) and his GOP colleagues had every reason to think they’d get away with this. Sure, Republicans were holding back more than 100,000 pages of documents, slapping a “committee confidential label” on more than 100,000 others and dumping an additional 42,000 pages on Democrats the night before the hearing began, but what were Democrats to do about it? After all, Majority Leader Mitch McConnell (R-Ky.) had ushered in a new ethos in the Senate after doing away with the filibuster for Supreme Court nominees. It’s now just about naked power. Comity? Fairness? Feh.
Then, it appears at the urging of two energetic junior senators — Kamala Harris (D-Calif.) and Cory Booker (D-N.J.) — Democrats started (almost literally) screaming foul. They objected vigorously on Tuesday. On Wednesday, Harris and others asked questions that appeared to be based on documents the Republicans wouldn’t let out (e.g. racial profiling, treatment of Native Americans). Republicans looked irked. Then on Thursday, all hell broke loose when Democrats began to leak and threaten to release documents that never should have been classified.
Kavanaugh testified in 2004 that he did not “personally” handle the nomination of a controversial George W. Bush judicial candidate: Judge William Pryor, who now sits on the U.S. Court of Appeals for the 11th Circuit. But emails made newly public early Thursday show more involvement than he appeared to indicate in his 2004 testimony. …
While he was a White House lawyer in the Bush administration, Kavanaugh advised against referring to the Supreme Court’s decision in Roe v. Wade as the “settled law of the land,” according to a 2003 email made public Thursday.
Booker also did his part in letting out 12 pages of documents — none of which have anything to do with national security or which would be withheld in any other Supreme Court confirmation. Sen. John Cornyn (R-Tex.) threatened that Booker would be in violation of Senate rules, which technically could lead to expulsion. Booker didn’t care. “I understand the penalty comes with potential ousting from the Senate,” he said. “… I openly invite and accept the consequences of my team releasing that email right now.” Once the documents were released — discussing racial profiling and the constitutionality of laws favoring Native people — it was apparent how ludicrous and, yes, dishonest Republicans have been in concealing potentially damaging materials.
No senator of either party should tolerate this skullduggery. It’s not Booker or Harris or Mazie Hirono (D-Hawaii) who dishonor the Senate, but Grassley, Cornyn and the rest who set up a deceptive process for releasing material. Allowing a Republican ally of the White House to decide what is releasable was, as Democrats guessed, an invitation to partisan gamesmanship and rank dishonesty. It’s a crock to call any of these document “classified” by reason of national security. Moreover, when document that sheds doubt on testimony the nominee was going to give (e.g. whether Roe v. Wade is settled law) is concealed, the Senate is, pardon the expression, rigging the system. If this happened in a court room, the concealers would be held in contempt.
It’s about time the Republicans — Sens. Jeff Flake (Ariz.), Bob Corker (Tenn.) and others — who care about the legacy of John McCain and despise bully-boy tactics step up. No documents, no vote. That should be their mantra. This is not simply a “process” issue but a requirement to prevent a nominee from gaining confirmation without the opportunity to confront him with his own words.