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Why Democrats Were Willing To Break The Rules On Kavanaugh Day 3

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 their thoughts after each day’s action. Today, Oliver Roeder and Perry Bacon Jr. each filed a dispatch.

There is an ideological light burning inside Brett Kavanaugh, but the last few days of congressional testimony hasn’t told us much about what it looks like — let alone how bright it will burn if he reaches the Supreme Court. Instead, it has been obscured by two distinct, opaque screens. The first screen is made of paper. Hundreds of thousands of pages of documents from Kavanaugh’s career as a government lawyer have either been withheld from the committee, declared “committee confidential” or delivered too late for any meaningful vetting. The second screen is made of silence. Kavanaugh has relied on an unwritten rule that he says compels a nominee to refuse discussing hypotheticals, potential future cases and — especially today — current events. To do so, he says, would corrupt his “judicial independence.”

For the first hour of Thursday’s hearings, Democrats on the Judiciary Committee, along with the press, tried to poke holes in that first screen to let the light in.

The confidential documents “belong to the American people,” Democratic Sen. Richard Blumenthal of Connecticut said to his Republican counterparts. “Shame on my colleagues.” Sen. Cory Booker, a Democrat from New Jersey, released some “committee confidential” documents, drawing the sharp ire of Texas Sen. John Cornyn, who declared that conduct unbecoming of a senator. Booker wasn’t alone. (Later in the day, it was revealed that the documents weren’t confidential after all.)

Democrats’ efforts did not end there. They were given a gift on Thursday morning when The New York Times published a group of Kavanaugh emails that had been marked “committee confidential.” In one, from 2003, after reviewing the draft of an op-ed written by someone else, Kavanaugh offered an edit: “I am not sure that all legal scholars refer to Roe [v. Wade] as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so.”

Not surprisingly, California Sen. Dianne Feinstein, the first Democrat to question Kavanaugh on Thursday, began her inquiry with this email. What did this email say about Kavanaugh’s opinion of Roe or augur for his future rulings on Roe?

Kavanaugh promptly raised the second screen — the unwritten and unenforced “rules” that would make it inappropriate for him to answer — and kept it up. He could provide neither any “hints or forecasts or previews,” he said, nor “a thumbs-up or a thumbs-down” on any specific Supreme Court decisions. (These non-answers are nothing new and are thoroughly bipartisan.)

For the next few hours, Democrats tried to poke holes in this screen, too — to little avail. Kavanaugh declined to comment (or “hesitated to opine”) on Roe v. Wade, on Trump’s stance on torture, on whether Kavanaugh would be constitutionally obligated to recuse himself should certain cases concerning Trump come before the Supreme Court, and on voting rights and voter fraud. (To his credit, Kavanaugh did say he approved of the 1803 decision in Marbury v. Madison, the case that granted the Supreme Court its power of judicial review.)

The result of all this obfuscatory dodgeball is a series of frustrated senators on one side and a series of self-satisfied senators on the other. And the same would be true if the sides of the aisle were reversed.

After three days of this hearing, it seems to me that this democratic rite of passage has become not a circus, as is the preferred metaphor, but a maze made of mirrors. The same questions bounce around and reappear forever, unanswered — and very often you smack into walls. Eventually, one wonders what in fact one is doing there.

When a Supreme Court nominee, on the cusp of the most powerful jurisprudential job in the land, won’t talk about the hypothetical, or the actual, or the past, or the present, or the future, very little is left. What are we doing here?

Despite what he emphatically did not say, we have strong evidence that Kavanaugh is conservative. Quite possibly very conservative. But we aren’t sure what he’ll do if he gets to the court; the role of Supreme Court justices is unlike any other judge. Until Kavanaugh actually takes his seat in the big marble building, we will remain largely in the dark, bumping into walls.

Oliver Roeder

A few thoughts on Day 3:

First, my main takeaway: The exchange between Booker and Cornyn seemed like the standout moment — because it was personal and tense, sure, but also because of what it demonstrates about the political moment we’re in.

Cornyn accused Booker of violating the rules of the Senate by talking about one of Kavanaugh’s past documents that had been labeled “confidential.” Cornyn even suggested that the New Jersey senator was doing so largely to promote a potential 2020 presidential campaign and warned Booker that there would be consequences to his actions.

Booker defended his move, said the process for releasing the confidential documents was a sham and basically dared Cornyn to seek any kind of punishment of Booker for violating Senate rules. “Bring it, bring it,” Booker said. (The documents were later revealed to not be confidential.)

I expect Booker to run for president in 2020, but I don’t think this moment was really about his political ambitions. The other Senate Democrats, including veteran members unlikely to seek higher office, like Dick Durbin of Illinois, chimed in to say that they agreed with Booker’s move — and that Cornyn should try to punish them too if he went after Booker.

Instead, the Booker-Cornyn exchange showed two things, in my view. For one, the younger, more partisan Democrats on the Senate Judiciary Committee — Hawaii’s Mazie Hirono, California’s Kamala Harris and Booker in particular — are pushing the party to take a more confrontational path in this nomination process, in some ways forcing less partisan, older senators (such as California’s Dianne Feinstein) to follow their lead. This is a dynamic we’ve seen in the Democratic Party at large.

Second, the Booker-Cornyn run-in, and the “confidential” documents fracas in general, is a good example of why so many scholars are worried about the state of American democracy. The Republicans, in this instance and others,1 seem to be prioritizing winning over following bipartisan procedures. In turn, this is driving Democrats to violate norms.

Looking forward, liberals are openly touting the idea of trying to increase the number of justices on the Supreme Court the next time Democrats are in power. Booker, Harris and other potential 2020 Democratic presidential candidates will likely get pressure to support such ideas. Increasingly, the very rules of politics are under constant contestation — and with two parties that think they can’t give an inch to the other.

A few other thoughts:

  • Durbin hammered this point Thursday, and it’s worth coming back to: Kavanaugh is a fairly traditional Republican, but Trump is a non-traditional president who regularly breaks with norms. So Kavanaugh’s views on presidential power and Trump-specific moves (like attempting to end special counsel Robert Mueller’s investigation) are the big, important unknowns here. And because Kavanaugh has said so little about these questions, we don’t know much. Democrats are worried that a justice will be confirmed who not only upholds abortion limits and strikes down parts of Obamacare, but also allows Trump to engage in unprecedented behavior, including and potentially ending the investigation against him. Nothing Kavanaugh said in the last three days eliminates that possibility.
  • Republicans may be trying to limit access to documents that contain Kavanaugh’s views on hot-button issues like abortion, but I don’t think there is any real mystery about his views: He is a loyal Republican; served in top posts in the George W. Bush administration, which was generally opposed to abortion rights and affirmative action; and was nominated by a Trump administration also opposed to abortion rights and affirmative action.
  • Again, it’s not surprising that Kavanaugh is conservative. But I think his comments make it even more clear what the new reality on the court will be if Kavanaugh is confirmed: The swing justice will be John Roberts.

— Perry Bacon Jr.


  1. See their push for voting laws that limit minority participation.

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.