On Tuesday morning, the Senate Judiciary Committee convened for the first day of confirmation hearings for Supreme Court nominee Brett Kavanaugh. As of Tuesday afternoon, it’s been a disaster. But it hasn’t been big enough. It’s quite clear by now that Democrats should do everything they can to blow this up. Committee Democrats should walk out of the hearings, which are a sham and a disgrace to the Senate and our democracy. Senate Democrats at large should then take whatever extreme parliamentary steps necessary to delay confirmation until after the election.
Monday night, Kavanaugh — a federal judge who worked as an adviser in the Bush White House — turned over 42,000 pages of documents to the committee. MONDAY NIGHT. Committee Republicans have also claimed, without debate, executive privilege over 102,000 pages from Kavanaugh’s stint in the Bush administration. According to Senator Patrick Leahy, that’s 7% of available documents from that time, documents which cover among other issues Kavanaugh’s internal correspondence related to torture and the Enron investigation. On top of that, only 4% of those documents were released to the public. Compare this to the GOP’s identical request of Obama nominee Elena Kagan, who as counsel to Bill Clinton also served in the White House: She released 99% of her White House documents, and all of them were public. Why would Kavanugh withhold a full 93% of his White House paper trail?
And though you probably don’t need the reminder, in 2016 Senate Republicans took the unprecedented step of refusing to hold confirmation hearings for Obama Supreme Court nominee Merrick Garland, making the argument that judges shouldn’t be confirmed in an election year. (We’re having an election in two.) Beyond this, Kavanaugh advocated in a 2009 volume of the Minnesota Law Review, for a congressional statute to exempt the president from criminal investigation, indictment, and prosecution. He argues such prosecution would “cripple the federal government.” Kavanaugh would most likely cast the deciding vote should Trump appeal any criminal action against him up to the Supreme Court. Trump will have picked his own judge.
Tuesday morning, Sen. Orrin Hatch, who is 84 years young and recently adjusted on his face a pair of glasses he wasn’t wearing, called this “the most thorough vetting process” for any federal judicial nominee he’d seen come through the Senate.
In response to this barrage of insult, Committee Democrats, to their credit, opened fire when the hearing opened. They motioned to adjourn, and delayed Chairman Charles Grassley’s opening remarks for more than an hour. Protesters have been breaking up the dialogue every few minutes, and though Capitol Police removed many of them, they seem somehow able to replace themselves in the room like shark’s teeth. In that opening stretch Grassley asked Democrats how long they planned to go on like this, and told them he won’t address their motions, dismissing all of them, present and future requests alike, as “out of order.”
You can, in a way, understand the GOP’s frustration: They’ve spent two years indefensibly defending Donald Trump for this, sacrificing integrity, legacy, character, and basic human decency. I mean, let’s give them a break: They’ve gone so far as to be derelict in their duty to the United States for the opportunity to force women to carry children to term, and now that the crowning moment has finally arrived, they don’t want to waste precious time.
At the end of the day, Senate Republicans are mocking democracy, and it’s difficult to see, given certain Congressional majority margins, how any SCOTUS confirmation process will proceed in the future. Indeed, it augurs bleak for the legislative process generally. Democrats don’t owe this delinquent Congress anything, and those on the Judiciary Committee should abandon the hearings in protest.
It’s debatable whether this would accomplish anything, in terms of the process. It’s worth whatever partisan political flak comes of it, but voters wouldn’t change their mind because of it, and any damage done would be easily repaired or also superseded by other issues. (Such as the President getting indicted for many crimes.) But in the wake of a walk-out, Senate Democrats could delay hearings indefinitely by refusing to make quorum, a viable but recondite parliamentary tactic that can hold up any Senate work at least until the election. Article 1, Section 5 of the Constitution sets quorum threshold at a simple majority, which is 51 of 100 Senators. With McCain absent, some Congressional experts believe this seems possible.
Though it might sound extreme to shut the Senate down indefinitely, there’s actually a long history of the Senate breaking quorum for this reason. And in my memory, there has never been a better reason than now, especially given that we might very well see the controversial indictment of the President.
Grassley, in response to the chaos this morning, said, “We are going to be in session Tuesday, Wednesday, Thursday, Friday, Saturday, Sunday ‘til we get done this week, so however long people want to take, we’re going to not necessarily accommodate all obstruction, but if people got something to say, this chairman is gonna let them say it. But it it gets pretty boring to hear the same thing all the time.”
It does. Time to shut up and walk away.