“Mr. Chairman, I agree with my colleague Senator Harris,” said Senator Mazie Hirono of Hawaii, calling for a postponement of the hearing.
“Mr. Chairman, if we cannot be recognized, I move to adjourn,” said Senator Blumenthal as protesters erupted in cheers. He called the hearing a charade and mockery, as organized protesters shouted that it was a “travesty of justice.”
Protesters shrieked and were arrested, a pattern that would continue throughout the hearings. Several of the seats made available to the public by senators were continually filled with new protesters, who were arrested after outbursts.
Senator Booker also began complaining about documents, as Grassley calmly told him he was out of order. “What is the rush? What are we trying to hide?” Booker asked. More protesters cheered him on. “I appeal to be recognized on your sense of decency and integrity,” Booker said, alluding to Grassley’s well-known gravitas and fairness. Hirono interrupted Booker’s interruption.
“You spoke about my decency and integrity, and I think you’re taking advantage of my decency and integrity,” replied Grassley.
On and on it went. Senator Tillis cited an NBC News report that the disruptions were a “coordinated effort by Senate Dems on the Judiciary Committee, and that it was discussed during the holiday weekend on a call organized by Schumer,” casting suspicion on the spontaneity of the protests.24 Schumer was unusually involved in the process, not trusting Feinstein to handle the political machinations he felt were needed. Senator Christopher Coons, a Democrat from Delaware, later told Politico, “It was important that we lay down a marker that this is not a normal hearing.” Senator Durbin said they wanted to “singl[e] out the hearing as something unusual.”25 They succeeded.
Appalled by the spectacle, Senator John Cornyn of Texas decried the “mob rule” that was marring the hearings and added that it was “hard to take [the objections] seriously when every single one of our colleagues in the Senate Judiciary Committee on the Democratic side have announced their opposition to this nominee even before today’s hearing.”26 Technically, Coons had not announced his opposition yet, but the point stood.
It took nearly an hour and a half, with dozens of interruptions, for Grassley to get through his ten-minute opening statement. Feinstein followed with hers, declaring that the confirmation battle was about abortion. She went on to list a few other issues, such as gun rights, attributing the anxiety of so many to the “pivotal” character of the seat Kavanaugh would fill. “Behind the noise,” she said, “is really a sincere belief that it is so important to keep in this country, which is multi-ethnic, multi-religious, multi-economic, a court that really serves the people and serves this great democracy.” Grassley’s hard-charging judicial aide Mike Davis leaned over to Feinstein’s chief of staff, Jennifer Duck, and asked if her boss approved of the protesters’ behavior. He was told she did, but the senator known for her collegiality looked mortified.
The interruptions angered the Republicans, and many Democrats appeared uncomfortable as well. Leahy lashed out after one protester on his own side interrupted him. Durbin acknowledged that such protests must be difficult for Kavanaugh’s children to witness, but called them “the noise of democracy.”
Senator Mike Lee pointed out that such anxiety over any single nominee reveals what is wrong with the courts and offered a brief lesson on the history of Supreme Court confirmation hearings. Justice Louis Brandeis was the first Supreme Court nominee to have a public hearing, in 1916. While Brandeis was opposed for being Jewish, he was also opposed for his progressive views and his history of basing decisions not on the law but on the social sciences.
Brandeis himself didn’t even attend his own hearing. It was not until 1939 that a nominee, Felix Frankfurter, would appear in person at a confirmation hearing. Senators were again concerned about the nominee’s politics—specifically, Frankfurter’s defense of the violent anarchists Sacco and Vanzetti in Massachusetts.
Lee reviewed various hearings, noting that senators were always trying to get judges to talk about specific cases, while nominees always refused on the grounds that they could not comment on an issue that might come before them on the Court. He brought up Justice Scalia’s refusal even to say whether the foundational decision establishing judicial review, Marbury v Madison, was settled law, for which he was roundly derided.27 Yet, Lee noted, in the previous term the Supreme Court had considered a case involving Marbury. He also referred to the “Ginsburg standard,” by which the nominee Ruth Bader Ginsburg declined to offer any previews, forecasts, or hints about her views, refusing to answer a remarkable sixty different questions. Lee continued:
If Senators repeatedly ask nominees about outcomes, then the public will be more entitled—or at least more inclined—to think that judges are supposed to be outcome-minded, that that is supposed to be their whole approach to judging, that that’s supposed to be what judging is in fact about. But this, of course, undermines the very legitimacy of the courts themselves, the very legitimacy of the tribunal you have been nominated by the president to serve on. Over time, no free people would accept a judiciary that simply imposes its own policy preferences on the country, absent fidelity to legal principle. There’s a better way for the Senate to approach its work. This process, in my opinion, should be about your qualifications, about your character, and, perhaps most importantly, about your approach to judging, your own view about the role of the federal judiciary. It should not be about results in a select number of cases.
Back and forth the senators went until it was time for Kavanaugh to be introduced. Former Secretary of State Condoleezza Rice, Senator Rob Portman, and Lisa Blatt, a high-powered liberal feminist lawyer—all of them longtime friends and colleagues—took turns singing his praises.
In his opening statement, Kavanaugh reflected on his background, his judicial philosophy, and his optimism. “I live on the sunrise side of the mountain, not the sunset side of the mountain,” he said. “I see the day that is coming, not the day that is gone. I am optimistic about the future of America. I am optimistic about the future of our independent judiciary.” That image was taken from a painting in George W. Bush’s Oval Office, Rio Grande, a West Texas landscape by Tom Lea, which the president liked to refer to. The idea of the “sunrise side of the mountain” stuck with staffers, particularly in the heavy days following September 11. Kavanaugh’s genuine optimism encouraged his clerks and others involved in the confirmation battle. He had worked relentlessly, remembered to thank those assisting him for their good work, and brought pizzas to staffers working long nights and weekends.
Kavanaugh came into the first day of hearings determined to remain positive, but by the end of the day the hearings had turned hostile. Raj Shah counted sixty-three interruptions from Senate Democrats, mostly related to demands for more of Kavanaugh’s irrelevant paperwork and other trivial delaying tactics that had nothing to do with evaluating his substantive qualifications.28 More than seventy protesters were arrested.
Those protesters didn’t arrive spontaneously. Planned Parenthood Action Fund flew in “storytellers” from as far away as Alaska and North Dakota. Winnie Wong, a senior advisor to the Women’s March, explained their carefully coordinated messages. Members going into the hearing room were given “a script where we suggest certain messaging that may resonate more.” The storytellers’ travel and accommodations were paid for, as were their legal aid and bail if they were arrested, which was generally the goal. Later in the hearings, the organizers of the protesters—the Women’s March and the Center for Popular Democracy—were warning activists that being arrested three times might lead to a night in jail. The group raised sums of more than six figures to finance the protests. “This is well-organized and scripted,” said Wong, “This isn’t chaos.”29