One of the most vindictive and ill-tempered congressional hearings in memory appeared to do little to shake up the political realities that will likely see President Donald Trump’s Supreme Court-reshaping nominee confirmed before the midterm elections.
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For much of the time, the Senate Judiciary Committee hearing this week added up to exactly the kind of petty, small, negative politics that mourners at Sen. John McCain’s funeral on Saturday used their eulogies to decry.
But there was a method to the madness unfolding in the Hart Senate Office Building.
For Kavanaugh, the hours of dodging snares laid by Democratic senators boiled down to avoiding huge errors – especially on the core issue of abortion that would risk the defection of a couple of Republican senators and jeopardize his route to the high court.
Unless one of his inquisitors laid a slow burning fuse that leads to a disastrous detonation of a scandal or controversy in the coming days, Kavanaugh seems to be in the clear.
Democrats knew going into this week that their minority status in the Senate gave them little hope of blocking Kavanaugh’s march to the bench.
But after nearly two years of angst following Hillary Clinton’s shocking defeat in 2016 – it was time to show backbone and defiance and to give party activists a glimpse of a better future.
And for potential 2020 presidential candidates like Democrats Kamala Harris of California and Cory Booker of New Jersey, the hearing was an early chance to build buzz and to capture the hearts of primary voters who will soon be shopping for a candidate.
’Three zip codes’
Kavanaugh made his strategy clear right from the start and never wavered. He presented himself as the picture of independence.
Such an approach is now standard for Supreme Court nominees. But it was a more taxing task for Kavanaugh than some recent predecessors given the trampled conventions left in the wake of Trump.
And as with all Supreme Court confirmation hearings it was mostly kidology: everyone watching and participating knows how Kavanaugh is likely to swing on important social, political and financial cases, since he was chosen from a list or authentic conservatives compiled by the Federalist Society and Trump vowed on the campaign trail to appoint judges who would overturn Roe v. Wade.
Still Kavanaugh had to follow the rituals of this Washington dance. If he said it once, he said it a hundred times: “My only loyalty is to the Constitution. I have made that clear, I am an independent judge,” he declared.
At multiple times, Kavanaugh declared he wanted to stay “three zip codes” away from politics.
While assuring senators he believed no one was above the law, Kavanaugh did nothing to assuage Democratic fears that he was picked by Trump because of writings that suggest a sweeping conception of executive power.
“Right now, there’s a shadow over the independence of the judiciary because a President who has been credibly accused by his former lawyer of being an unindicted co-conspirator has the opportunity to put a judge on the bench,” Booker told Kavanaugh.
“It is understandable for people to suspect that there’s something going on. That somehow this is rigged.”
Kavanaugh would not say if a sitting president must respond to a subpoena. He gave no quarter when asked if a president can pardon himself – Trump has argued he has an “absolute” right to do so. Asked to recuse himself if an issue involving the Mueller probe reaches the Supreme Court he answered: “I should not and may not make a commitment.”
There were a few testy exchanges, notably under the quick fire scrutiny of Harris, but Kavanaugh never lost his cool.
He did not snap when taunted by Democratic senators, his knowledge of the law, his own past cases, and understanding of political lines it would be unwise to cross would, in a less partisan era, have made it difficult for opponents to argue he wasn’t actually qualified for the court.
Kavanaugh also blunted Democratic counter-narratives that he is a harsh ideologue by frequently praising his family, often at the prompting of friendly GOP senators and idealizing his youth in suburban Maryland. At one point he brought in girls from basketball teams he coached.
Uphill climb for Democrats
In an ideal world for Democrats, they would have trapped Kavanaugh in a lie, or exposed some deep secret from his past and derailed his nomination.
But it was not really a realistic hope. The deck has been stacked against the opposition party ever since the GOP captured a monopoly on power in Washington in 2016.
And the demise of the filibuster for Supreme Court nominees during the Neil Gorsuch confirmation fight means tight election wins are more important than ever.
For many outsiders the anger and the bitterness and ill feeling that Democrats managed to stoke – to which Republicans proclaimed themselves theatrically offended – was yet another infuriating sign of a broken political system.
But for the Democrats, looking down the barrel of a Supreme Court dominated by conservatives for decades, making a noise was the extent of their ambitions.
Judiciary Committee Chairman Chuck Grassley of Iowa was only a few words into his opening statement on Tuesday when he was interrupted by a sequence of Democrats demanding a halt to the hearing.
Objectively, they had a point. More than 100,000 documents detailing Kavanaugh’s work for the Bush administration were withheld by the White House. Another batch of 40,000 were dumped on the committee hours before the hearing, giving no time for a proper vetting.
It was only ever going to be a delaying tactic, but the Democrats inflicted pain and frustration on their GOP opponents and left Kavanaugh with a bemused look on his face, anchored to his chair.
Veteran Democrats like Dianne Feinstein of California and Dick Durbin of Illinois did much of the jurisprudential heavy lifting. But the hearing also offered a playground to rising stars.
Booker revealed himself to be a street brawler – a quality that might come in handy if he were ever to go up against Trump,
On Thursday, he released batches of emails that had been designated as “committee confidential” that referenced Kavanaugh’s position on racial profiling and Roe v Wade.
Republicans reacted with disgust, accusing the New Jersey senator of breaking Senate rules – then ridiculed him because some of documents had actually been cleared for release in the early hours of Thursday morning.
But nuance doesn’t really matter when it comes to political grandstanding. Booker said he was willing to be kicked out of the Senate for breaking the chamber’s rules and marked himself out for party activists as a Democrat with stomach for the fight.
“This is about the closest I’ll probably ever have in my life to an ‘I am Spartacus’ moment,” he said.
Harris took a more cerebral approach, displaying a forensic skills honed as a district attorney. She was one of the few Democrats who actually seemed to discomfort Kavanaugh – and now has a long show reel to tap for campaign purposes as she implied that she had information that he discussed the Mueller probe with members of a law firm set up by a Trump attorney.
In the end the exchange was inconclusive.
But like Booker, Harris won an outpouring of love from liberals on Twitter. And that was really the point.