But GOP senators mostly calmly defended Kavanaugh from what Sen. Ted Cruz (R-Tex.) called the Shakespearean nature of the hearing — “sound and fury, signifying nothing” — confident that there were no defections from the solid Republican support Kavanaugh needs to be confirmed as the Supreme Court’s 114th justice.
The 53-year-old judge, who serves on the U.S. Court of Appeals for the D.C. Circuit, sat impassively for nearly seven hours of senators’ statements before speaking for less than 20 minutes. Senators plan to begin questioning him Wednesday morning.
“The Supreme Court must never, never be viewed as a partisan institution,” Kavanaugh said. “The justices on the Supreme Court do not sit on opposite sides of an aisle. They do not caucus in separate rooms. If confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player on the team of nine.”
No such conciliation was apparent on the Senate Judiciary Committee — or from the White House.
“The Brett Kavanaugh hearings for the future Justice of the Supreme Court are truly a display of how mean, angry, and despicable the other side is,” Trump tweeted. “They will say anything, and are only looking to inflict pain and embarrassment to one of the most highly renowned jurists to ever appear before Congress. So sad to see!”
The chairman’s opening remarks were delayed for nearly an hour and a half as Democratic senators sought to cut off the hearings, raising an uproar over a last-minute document dump sent to the Judiciary Committee late Monday encompassing more than 42,000 pages from the nominee’s tenure in the George W. Bush White House.
Democrats questioned Kavanaugh’s judicial philosophy and even his honesty. Sen. Patrick J. Leahy (D-Vt.), who has said he feels he was misled by the judge at his previous confirmation hearing for the lower court, pointedly told Kavanaugh he would question him about that “when you are under oath.”
Sen. Sheldon Whitehouse (D-R.I.) referred to the Republican-appointed conservatives on the court headed by Chief Justice John G. Roberts Jr. as the “Roberts Five” and said the justices were always looking for ways to benefit the “big fundraisers and influencers of the Republican Party.”
Cruz said his Democratic colleagues were trying to re-litigate the results of the 2016 election. Sen. Lindsey O. Graham (R-S.C.), who noted that he had voted for President Barack Obama’s nominees Sonia Sotomayor and Elena Kagan, was equally blunt.
“You had a chance and you lost,” Graham told Democrats. “You can’t lose the election and want to pick judges.”
Barring any major last-minute surprises, Kavanaugh appears to be on track to be confirmed by the end of the month. Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said a committee vote is likely to occur Sept. 20.
That would allow Senate Majority Leader Mitch McConnell (R-Ky.) to tee up votes on the floor confirming Kavanaugh during the last week of September. The Supreme Court’s new term begins Oct. 1.
But Tuesday’s opening session indicated that the public fight over his nomination will be intense.
It was, Grassley said later, “a bad start.” Democratic senators repeatedly interrupted Grassley over the document issue, and by the end of the day more than 70 protesters had been arrested. Their theme: The Republicans are hiding something by withholding information.
“This is the most incomplete, most partisan, least transparent vetting for any Supreme Court nominee I have ever seen,” said Leahy. “And I have seen more of those than any person serving in the Senate today.”
Another focus was Trump himself, who has frequently leveled attacks against the judiciary and law enforcement.
Two Republican senators — Ben Sasse (Neb.) and Jeff Flake (Ariz.) — praised Kavanaugh personally and professionally, but raised questions about Trump’s attacks on the Justice Department and how Kavanaugh would handle cases involving presidential power.
In a tweet Monday, Trump criticized Attorney General Jeff Sessions for the recent indictments of two Republican members of Congress on corruption charges and for the timing, so close to the House midterm elections.
“That is why a lot of people are concerned about this administration and why they want to ensure that our institutions hold,” Flake said. He added that “many of the questions you will get on the other side of the aisle and from me” will center on separation of powers.
The protesters, who were predominantly women, repeatedly heckled the senators and Kavanaugh, arguing that installing Trump’s second pick to the Supreme Court would irreparably end access to abortion and dismantle the Affordable Care Act.
Democrats have charged that documents on Kavanaugh’s career have been withheld without justification, particularly those from his tenure as a Bush staffer. Senators have reviewed nearly 200,000 pages that cannot be disclosed to the public, and the Trump administration is withholding an additional 100,000 pages from Congress, claiming that those documents are covered by presidential privilege.
Kavanaugh, appointed to the U.S. Court of Appeals for the D.C. Circuit by Bush, served the president in the White House Counsel’s Office from 2001 to 2003 and as staff secretary from 2003 to 2006.
Tuesday’s proceedings brought to the surface years of anger over judicial nominees. Democrats invoked the name of Merrick Garland, who was nominated by Obama in 2016 to fill the Supreme Court seat formerly held by the late justice Antonin Scalia and who was denied a hearing by Senate Republicans.
In his remarks, Kavanaugh praised Garland, the chief judge on the appeals court on which they both serve, as “superb” — a line likely to further rile Democrats.
Senate Majority Whip John Cornyn (R-Tex.) said the Democrats’ behavior would lead them to be “held in contempt of court,” prompting a chorus of quiet boos and “Oh come on” that echoed throughout the hearing room. He later said the hearing had turned into “mob rule.”
When it was his turn, Kavanaugh told senators that he would be “a neutral and impartial arbiter” if confirmed.
“I don’t decide cases based on personal or policy preferences,” Kavanaugh said. “I am not a pro-plaintiff or pro-defendant judge. I am not a pro-prosecution or pro-defense judge. I am a pro-law judge.”
Throughout his remarks, Kavanaugh noted his appreciation for the strides that women and girls have made professionally and in sports. Kavanaugh’s critics have said his elevation to the Supreme Court would be detrimental to women’s reproductive rights and health-care options, and his emphasis on the strong women in his life seemed designed to counter those concerns.
He talked about his record as a judge of hiring female law clerks and at length about coaching his daughters’ basketball teams, listing by name each player and noting the real-world impact of Title IX.
“I see that law’s legacy every night when I walk into my house as my daughters are getting back from lacrosse, or basketball, or hockey practice,” he said.
In a preview of the tough questions Kavanaugh will face Wednesday, Democratic senators said they would press the judge on his views about abortion, gun control and executive power.
Sen. Dianne Feinstein (D-Calif.) addressed Kavanaugh about abortion. The question, she said, is not whether he believes that the landmark Roe v. Wade decision is “settled law,” as he has told other senators, but “whether you believe it is the correct law.”
Sen. Richard J. Durbin (D-Ill.) said he would resurrect a controversy from Kavanaugh’s 2006 confirmation battle over whether he was involved in developing Bush-era policy on the treatment of terrorism suspects. Kavanaugh worked as a White House associate counsel at the time that Bush developed his policy, laid out in what became known as the “torture memo.”
As a nominee for the D.C. Circuit, Kavanaugh testified that he was “not involved.”
Later, Kavanaugh’s denial came into question when The Washington Post revealed that he had participated in a White House Counsel’s Office meeting in which he was asked his opinion about how Kennedy — for whom he had clerked — was likely to view the matter.
In response, Sen. Mike Lee (R-Utah) defended Kavanaugh and said the suggestion that the judge had “misled this committee in any way is absurd.”