On Thursday, September 6, Cory Booker stunned the committee by announcing even before questioning began that he would violate Senate rules by releasing emails that had been marked “committee confidential.” He tweeted a link to documents that he said revealed troubling racial messages but that actually consisted of discussions about security screening procedures in the immediate aftermath of 9/11 and whether they should include race and national origin.51 In fact, Kavanaugh opposed racial profiling. In an email to a colleague in the White House counsel’s office in 2002, Kavanaugh had written:
The people who favor some use of race/natl origin obviously do not need to grapple with the interim question. But the people (such as you and I) who generally favor effective security measures that are race-neutral in fact DO need to grapple—and grapple now—with the interim question of what to do before a truly effective and comprehensive race-neutral system is developed and implemented.
The year after Kavanaugh wrote that email, the Bush administration issued guidance prohibiting law enforcement agencies from using racial profiling.52
The emails were a dud, but Booker—also preparing to announce his run for the presidency—tried to call attention to his breaking of Senate rules. “I knowingly violated the rules put forward,” he said, adding that he realized he was engaged in civil disobedience and would accept the consequences. He practically begged the Republicans to try to expel him from the Senate and remarked that this was the closest he would come to an “I am Spartacus” moment. Since there was nothing to connect Booker’s situation with the famous scene from the 1960 Kirk Douglas movie, in which a group of slaves all claim to be the outlaw Spartacus to help the real Spartacus avoid being crucified, the remark came across as silly, exposing the senator to no small amount of mockery. He was in no danger of expulsion, in any case, because, despite his self-accusation, he had not violated any rules. He had requested the day before that the documents in question be cleared for release, and staff worked through the night to clear them. Bill Burck had informed him at four o’clock that morning that he was free to release them, as Grassley had noted at the hearing just before Booker’s Spartacus moment.53
Booker was intent on violating the rules, however, and he released what he believed to be confidential emails throughout the day. The grandstanding was unnecessary. “Had we been consulted on these universally released documents, we would have consented to their public disclosure,” Burck wrote in a letter.54 The White House and Senate staffs worried that Booker’s theatrics would make future nominees and administrations less willing to share information about nominees, which is the property of the administration. After the experiment with modern e-discovery procedures and providing digital documents that are easily searchable, the confirmation process might return to the closely guarded rooms of filing boxes of previous decades.
Senator Blumenthal tried to embroil Kavanaugh in a controversy over President Trump’s harsh rhetoric. Reading tweets that criticized Justice Ruth Bader Ginsburg for her critique of him, Blumenthal asked if Kavanaugh agreed with the president that she was an embarrassment for making political statements about him. Kavanaugh said he wouldn’t get “within three zip codes” of a political controversy. It was Blumenthal’s questioning of Gorsuch about a different set of Trump tweets that caused the president to briefly waver in his support of the nominee. Kavanaugh navigated the minefield more nimbly, and it would pay off.
After a long day of questioning that kept Senator Grassley up past his normally firm nine-o’clock bedtime, the public portion of Kavanaugh’s testimony closed after ten p.m. The nominee had testified for thirty hours across three days. The protesters and supporters went home, but the judge and the senators stayed for the closed portion of the hearing. The spirited debate about “committee confidential” documents obscured the fact that senators would have this opportunity to question the nominee on all manner of confidential topics, including work product, sensitive personal financial information, and other ethical or legal questions uncovered by the FBI background investigation. The group remained in closed session for about an hour. It is customary to continue the closed session for that long even if there are no concerns about a nominee’s record, so as not to call attention to nominees for whom there are confidential vetting concerns. The senators spent much of the time sparring with one another over things that had nothing to do with Kavanaugh. Senator Grassley, particularly disappointed with some members’ behavior, was in rare form. The closed session would be the occasion to ask about confidential allegations against a nominee or to raise concerns about his ethical behavior. No such allegations were mentioned during the closed session. Senator Feinstein did not even attend.
The fourth day’s testimony was comparatively uneventful. Paul Moxley and John Tarpley, two members of the American Bar Association’s Standing Committee on the Federal Judiciary, explained their method for awarding Kavanaugh the ABA’s “well qualified” rating (unanimously). Then came a seemingly interminable parade of witnesses for and against Kavanaugh’s confirmation. Law professors, noted Supreme Court advocates, and former clerks spoke on his behalf, and the testimony of a few friends was intended to put a human face on the judge.
Then it was the opposition’s turn: young people, union members, a Methodist minister who wanted the government to force her church-employer’s insurance to pay for her IUD, and even Congressman Cedric Richmond, a civil rights leader who warned that Kavanaugh’s textualist approach to the law would threaten voting rights, education, and his favored criminal law policies. There was a woman with cerebral palsy who had been led to believe that Kavanaugh would take away her right to make her own medical decisions. (He had decided a case addressing how to manage care for wards of the state who were incapable of giving consent, a group to which this woman clearly did not belong.) The day ended with the Watergate figure John Dean testifying for the Democrats about Kavanaugh’s excessive deference to presidential authority. The hearings ended with a whimper, not a bang.
“This week’s hearing lacked the sordidness of the Thomas hearing,” reported the Washington Times, “but made up for it in vitriol—both on the dais and in the viewing gallery. One Republican senator said he counted more than 200 protesters ousted over three days.”55 A major source of the hearings’ drama was political ambition. Ever since Joe Biden’s grandstanding during the Bork hearings, senators have been powerfully tempted to exploit a perch on the Senate Judiciary Committee for public attention. Senators Booker and Harris attracted the most attention with their antics, but Senator Klobuchar would do her share of aggressive self-marketing when the Judiciary Committee resumed its hearings after the nominee was accused of sexual assault. The presence of those three presidential hopefuls on the committee encouraged other candidates to sound off about the nomination as vociferously as possible, lest their competitors on the committee steal the limelight. Senator Elizabeth Warren, for example, conspicuously stopped by the lobby in Dirksen to express her support for the protesters.56
Senator Jeff Merkley, who was considering a run for president but later decided against it, contributed to the partisan atmosphere with a litigious gesture. He filed a nuisance lawsuit against the president, the Senate majority leader, the chairman of the Senate Judiciary Committee, the Senate sergeant at arms and secretary, and Bill Burck. The Senate’s constitutional “advice and consent” responsibility was at risk, he alleged, because of a failure to supply senators with enough documents to assess the nominee thoroughly. The judge, an Obama appointee, let the frivolous suit die a procedural death.