"I am going to release the email about racial profiling, and I understand the penalty comes with potential ousting from the Senate,” he said. Within the hour, Booker did just that, though it looks like the email chain was not marked confidential at the time he released it.
Other Democratic senators soon joined in, threatening to release confidential emails and documents from Kavanaugh's time as a lawyer in the George W. Bush White House. Senate Minority Leader Charles E. Schumer (D-N.Y.) cheered them on via Twitter.
I stand w/ Judiciary Committee Democrats who are well within their rights to release these very important documents that a former Kavanaugh deputy designed as “committee confidential.”— Chuck Schumer (@SenSchumer) September 6, 2018
The American ppl deserve to know the truth about Judge Kavanaugh’s record. #WhatAreTheyHiding?
Within the hour, Sen. Mazie Hirono (Hawaii) released another email chain from Kavanaugh in 2002, with him debating whether Native Hawaiians should have the same protection as Indian tribes. The words “committee confidential” are stamped diagonally across each page.
"I would defy anyone reading this document to conclude this document should be deemed confidential in any way, shape or form,” she said.
A lawyer for Bush who is vetting the Kavanaugh documents marked tens of thousands of documents confidential, meaning members of the Senate Judiciary Committee can see them, but the public cannot. Democrats argue the hidden documents are pretty innocuous, and even in some cases directly relevant to how he'd think as a Supreme Court justice.
Practically, for Booker, that meant he could not display an email in which Kavanaugh discussed government racial profiling in 2002 when he used it Wednesday to try to pin down the nominee on his views of the policy. Republicans on the committee immediately raised a point of order during Booker's questioning, claiming that the senator was unfairly cross-examining Kavanaugh without providing him the documents. They argued that Kavanaugh could not respond to specific questions about this email if he did not have the email in front of him.
Booker, frustrated, replied that the email is locked away in a private room somewhere for only Senate committee members to see. Republicans have set up a process in which members can request the release of such confidential emails, but Booker and Democrats argued that it takes too long and ultimately puts the decision at the feet of Bush's lawyer, who perhaps has an interest in protecting Kavanaugh. (Bush's lawyer, William Burck, said in a statement that "we have said yes to every request made by the Senate Democrats to make documents public.")
Democrats' other fear is that the documents they requested could come at the last minute, like the more than 40,000 pages of Kavanaugh documents that got dumped Monday night hours before the hearing. Separately, President Trump withheld more than 100,000 pages of documents on the eve of the hearing, using his authority as president to keep even the senators from viewing them.
Even if the documents get released when they ask for them, Democrats also argue that the committee is protecting an unusually high number of documents from public view. Sen. Richard J. Durbin (D-Ill.), a longtime member of the committee, said it is usually few and far between the kinds of documents that get marked committee confidential.
"Whenever we've dealt with committee confidential, it was something very specific and usually very personal to a nominee,” he said.
That is the central theme of Senate Democrats' argument here, that, with a few exceptions, there is no private information in these emails and documents that the public should not see.
Sen. Sheldon Whitehouse (D-R.I.) called the hearing a “sham” and said that he had snuck in a reference to a confidential document in his opening statement just to prove it did not need to be marked confidential.
In a much more dramatic way, Booker tried to make the same point, daring Republicans to try to expel him for doing this. Sen. John Cornyn (Tex.), the second-highest-ranking Republican in the Senate, got close when he angrily called Booker's actions “irresponsible conduct unbecoming of a senator,” and said that no senator who does such a thing deserves to be on the committee.
"Running for president is no excuse for violating the rules of the Senate,” Cornyn snapped, referencing speculation that Booker might make a bid for White House in 2020.
It is unclear whether Booker and Hirono have violated any Senate rules. The Post has reported that both Democratic and Republican aides on the committee say both documents were cleared for release early Thursday morning.
What has become clear is that Senate Democrats are willing to do anything short of walking out of the hearing to try to stop Kavanaugh's nomination from going forward. They have few tools at their disposal to stop Kavanaugh from getting on the court. It only requires a majority vote to confirm his nomination, and Republicans hold a 51-to-49 majority.
But a lot is on the line for Democrats if (or when) he does get confirmed.
Kavanaugh's seating would cement a conservative majority on the Supreme Court, but it also would give Democrats a rallying cry ahead of the November midterm elections, in which they could seize majority control of the House and possibly the Senate.
Meanwhile, Republicans want to get Kavanaugh on the high court before the next term starts in October. It would be a huge victory for them to champion before the November elections.
Within that context comes this remarkable display of civil disobedience from Senate Democrats. Behind the scenes for weeks, they and their aides argued that Republicans were trying to rush through Kavanaugh's nomination and hide something from his past that could jeopardize his chances. Now, it is blown up in front of the cameras — and it is anyone's guess as to what will happen next.