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Why Democrats Were So Fiery On Day 1 Of The Kavanaugh Hearings

Who wouldn’t want to spend the day watching a Supreme Court nomination hearing?

FiveThirtyEight is tracking Brett Kavanaugh’s testimony in the Senate all week long, and some of our writers will be offering our thoughts after each day’s action. Today, Oliver Roeder and Perry Bacon Jr. each filed a dispatch.

The confirmation hearing of Brett Kavanaugh began on Tuesday morning under chaotic protest. In an apparent break from regular order, Democrats on the Judiciary Committee repeatedly moved that the hearing be adjourned or delayed, citing hundreds of thousands of documents they either didn’t have or received too late to review. These motions were all denied or ignored by the committee’s irritated and flustered chairman, Sen. Chuck Grassley. And civilian protesters repeatedly interrupted the proceedings over the course of the day, shouting for the senators to vote against Kavanaugh, to the consternation of many senators on the dais.

Kavanaugh sat mostly poker-faced during the statements and commotions, sipping water and taking occasional notes. He is scheduled to start answering questions on Wednesday.

It was a remarkable political scene, but Sen. Ted Cruz was unimpressed. Citing Shakespeare, he called it “a lot of sound and fury signifying nothing.”

He may be right. As I wrote today, confirmation hearings have become limelighted, grandstanding affairs. In the decades since the hearings were made public, in 1939, the comments uttered during the hearings have grown by an order of magnitude, as have the number of issues discussed. But the answers given by nominees to these voluminous questions increasingly contain little information. Innocuousness is the name of the nominees’ game. And most reporting out of Washington suggests that Senate Democrats face long odds to stop a seemingly inevitable confirmation.

Kavanaugh’s record and the role of the committee were grilled in Tuesday’s opening statements — as was the role of the Supreme Court itself. Sen. Ben Sasse delivered a self-styled “Schoolhouse Rock” lecture, in which he, rather disturbingly, described the Congress as “self-neutered.” Supreme Court justices, he said, have become the super-legislators instead, which is an affront to the Framers’ intentions and the health of the democracy.

Then again, Sasse, a Republican, is almost certainly going to vote in favor of someone who will help the court pivot sharply to the right. Were Kavanaugh to be confirmed, Chief Justice John Roberts would almost certainly become the court’s new median justice. The court is now a powerful and polarized branch of government — no senatorial speech is going to change that.

In other words, the yelling protesters didn’t show up for nothing. Major issues of abortion rights, voting rights, campaign finance, health care, and the role of the executive branch could easily wind up on the high court’s docket.

To that last point, discussing Kavanaugh’s broad conception of executive power in the midst of federal convictions, guilty pleas and indictments of those close to the president, Sen. Chris Coons wondered whether Trump had nominated Kavanaugh “with an eye toward protecting himself.” Much of the days to come will no doubt be devoted to that possibility.

Sen. John Kennedy, meanwhile, said he was simply looking for someone who writes crisply and “knows what a semicolon is for.” Kavanaugh smiled; I’d bet he fits that description.

Oliver Roeder

I think the surprisingly combative approach by Democrats at the start of the Kavanaugh hearing reflects four things.

The obvious one is that the Kavanaugh nomination is hugely important. The stakes are higher in some ways than last year’s hearings for Neil Gorsuch, whose nomination was basically a swap of one stalwart conservative (Antonin Scalia) with another.

Secondly, since the March 2017 Gorsuch hearings, I would argue, the base of the Democratic Party has gotten more aggressive and feisty and has pushed the party’s lawmakers toward the left. Every indication we have is that Democrats are moving left on policy and tactics. Today’s protests add another small piece of evidence to that thesis.

Third, the Senate Judiciary Committee has some very anti-Trump members, including four (Richard Blumenthal, Cory Booker, Kamala Harris, Mazie Hirono) of the 10 senators who oppose the president the most (according to our Trump score, which measures how often members of Congress vote with the president). It was not surprising that they wanted a direct confrontation over this nomination process. I think Booker’s and Harris’s concerns are less about their potentially campaigns for president and more about their being liberal, anti-Trump senators.

Finally, Republicans’ opting to release 42,000 pages of documents only hours before the hearing was another norms violation by the GOP. There was basically no way for the senators to read those documents before the hearing. Of course they were upset. The two parties have been intensely battling over the how the Supreme Court nomination process should go for three decades. But I think the Democrats are particularly upset about the Republicans’ refusal to hold a hearing in 2016 for Obama Supreme Court nominee Merrick Garland. The Democrats view that as a major transgression of the way the judicial nominations process is supposed to go. It’s worth thinking about this dispute with Garland in the back of your mind — that’s the original sin by Senate Republicans according to these Democrats.

Unsurprisingly, none of the committee’s Republicans joined the protest. If you watched the remarks of Sens. Jeff Flake of Arizona and Ben Sasse of Nebraska, two Republicans who are frequent critics of Trump, there was little doubt that they will vote for Kavanaugh. It’s hard to see Democrats getting any Republicans in the Senate to oppose the nominee — and they need two now, with former senator Jon Kyl about to replace the late John McCain. But at the Kavanaugh hearing, Flake expressed frustration with Trump’s tweet over the weekend implying that Attorney General Jeff Sessions should have somehow blocked the recent indictments of two House Republicans to help the GOP in the midterms. Flake hinted that he will press Kavanaugh on that tweet and issues around Trump’s presidential authority.

That could be interesting. I think it’s obvious that Kavanaugh will duck questions around, say, abortion rights or Obamacare. But in some ways, the voters, by electing a Republican president and a GOP Senate, decided that having judges on the court who were strong defenders of abortion rights and Obamacare were not a high priority to them. (And maybe they elected Republicans precisely to roll back Obamacare and abortion rights.) The questions around Trump, the Russia investigation, how Trump runs the executive branch, and the extent of his powers are newer and aren’t as partisan as other Trump topics. The nominee may feel some pressure to prove to Flake and some Republicans on the committee that he will not always do Trump’s bidding if he is on the court.

— Perry Bacon Jr.

CORRECTION (Sept. 4, 2018, 6:30 p.m.): An earlier version of this story misspelled the name of Hawaii Sen. Mazie Hirono.

Perry Bacon Jr. was a senior writer for FiveThirtyEight.

Oliver Roeder was a senior writer for FiveThirtyEight. He holds a Ph.D. in economics from the University of Texas at Austin, where he studied game theory and political competition.