With the Senate’s vote to confirm Judge Brett M. Kavanaugh to the Supreme Court, public debate has again focused on the legitimacy of the upper house’s decisions. Kavanaugh’s confirmation will profoundly affect the lives of millions of American citizens. As a result, the procedural maneuvers made during the confirmation process have taken on renewed significance as indicators of how the Senate views its role and relationship to the public.
The Senate has a reputation as the chamber that coolly deliberates, removed from the heat of public passions. But Democratic senators are increasingly arguing for more open processes — perhaps because they represent a solid majority of Americans, even while they make up only a minority of the Senate.
Last month, Sen. Cory Booker (D-N.J.) declared in the Judiciary Committee that he was risking expulsion from the Senate to make public confidential records relating to Kavanaugh’s nomination. A number of other Democratic senators followed suit, proclaiming their commitment to opening the deliberative process to the American people. On “The Late Show,” comedian Stephen Colbert joked that the documents were “important enough for you senators to see them, but we the public don’t get to know what’s in them? You know you work for us, right? You don’t get to hide stuff from your bosses.”
Booker’s release of supposedly confidential documents and Colbert’s assertion that elected officials “work for us” have historical analogues in the early American republic. They highlight the extent to which transparency has always been tied to a particular vision of political representation as necessarily reflective of public sentiment.
Historically, the duty of senators to consider the wishes of their constituents and the weight of public opinion in deciding their votes has not always been clear. The Senate was conceived in the 18th century as an enlightened body that should be insulated from popular pressure, free to make decisions in what the members determined to be the best interest of the country. It was a conception that relied on the notion that senators would in fact be enlightened and deliberate in the country’s best interest rather than being motivated by private or partisan concerns — a lofty ideal that has not always been realized.
Assertions that the Senate should consult and reflect public opinion in its decisions arose from the start. In 1795, when the country was just years old, Sen. Stevens Mason of Virginia made a move similar to Booker’s. After the Senate spent weeks debating — in secret — whether to ratify a recently negotiated treaty between the United States and Britain, Mason violated their vote to keep the text confidential. He leaked it before the printing of the treaty was authorized.
The leaked treaty soon surfaced in print with a preface in which Mason urged people to obtain knowledge of what “I think has already been improperly withheld from them.”
Popular outrage ensued. Political societies nationwide decried the Senate’s use of secrecy as an attempt to violate the will of the people by ratifying an unpopular treaty and thereby undermining the legitimacy of the representative process. Members of a popular society in South Carolina declared, “There is no authorized secrecy in our government, and to infer such a right from the practices of other nations, is a prostitution of republican principles.” Secrecy eroded the legitimacy of representation, making “twenty [senators] greater than the whole.” (There were 15 states, and therefore 30 senators, at the time.)
The treaty was ratified, but the Senate began to change. A few months later, the chamber permanently opened its doors to the public for the first time. The 17th Amendment, not ratified until the early 20th century, made senators elected directly by the people rather than selected by state legislatures. Yet, as recent events highlight, the roots of the chamber’s legitimacy and function remain ambiguous to the present day.
In both cases — 1795 and 2018 — leaking confidential documents proved to be a way to demonstrate adherence to a type of political representation that entailed consultation with and accountability to the American people. Secrecy was disavowed as a trick to violate the people’s will by withholding vital information and preventing the public from weighing in on the issue at hand. Like Colbert, the popular and anonymous “Franklin” declared in the Independent Gazetteer in 1795: “If the People have the right and the capacity to govern themselves, they are certainly entitled to a knowledge of their own affairs.”
Over the past month, Republican senators have repeatedly demonstrated that they do not seem to agree. Not only were many of the judge’s records never released, the FBI’s report on its investigation of serious allegations of sexual assault was made available only as a single paper copy to senators and select staff members. It seems clear that current Republican senators are committed to a vision of the representative process where citizens do not have a meaningful role to play in senatorial decision-making.
While this has historical precedent, we might want to consider whether it remains legitimate. It is true that the Senate was not designed to be representative in a reflective sense. But the interceding years have changed our expectations of its role and our understanding of representation. Senators are now elected directly by citizens, elite white men can no longer claim a monopoly on enlightened thought, and secrecy has repeatedly been used to make partisan and unpopular decisions. We find ourselves in a situation where our current understanding of representation as reflective of and responsive to the people is at odds with the way the Senate was originally designed.
The thousands of protesters who have shown up on Capitol Hill during the past few weeks have made this case. Americans followed the Senate Judiciary Committee hearings on live television, and demonstrators interrupted the early hearings from the gallery. People are watching. As they watch, they are asserting an expectation to be seen. As Maria Gallagher, who confronted Sen. Jeff Flake (R-Ariz.) in an elevator on Sept. 28, wrote in an op-ed about the encounter, the message is clear: “Don’t look away from me.”